Doe on The Several Demises of Joseph Lane Lucas Shelton, Thomas Wood Roberts, and Thomas Wood Roberts, William Roberts, and John Roberts, against Brown Shelton
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 1835 |
| Date | 11 May 1835 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 413
IN THE COURT OF KING'S BENCH.
[265] doe on the several demises of joseph lane lucas shelton, thomas wood egberts, and thomas wood egberts, william egberts, and john egberts, against brown shelton. Monday, May llth, 1835. 1. A verdict was taken for plaintiff in ejectment, subject to a special case, which stated that it was " the custom in the manor " in which the premises in question, being copyhold lands, were, that where a copyholder, being a feme covert, surrendered, if the husband consented to the surrender, such consent should be expressed in the surrender and admission ; and that without his consent the surrender was inoperative. Quaere, whether upon this it must be understood that, if the husband were shewn to have consented in fact, but such consent was not expressed in the surrender, the surrender was inoperative. 2. The custom so understood would not be bad in law. 3. The Court refused to amend the case, at the instance of plaintiff alone, by the Judge's notes, so as to limit it to a mere statement that the common practice was to enter the consent in the surrender and admission. 4. Supposing such an entry not indispensable, the Court, upon a case stated, will not, in default of evidence, assume the fact of the consent, in order to prevent the surrender from being invalidated, as against a party disputing the efficacy of the surrender and claiming as heir to the wife. 5. Now will the Court so assume, upon proof that the husband had joined in a previous surrender of the copyholds to the use of a stranger for the wife's life, and was not entitled to curtesy, that he was present in the court at which the surrender in question took place; that the entry of the surrender in the court-roll was incomplete, but contained no 414 DOE V. SHELTON 3 AD. ft E. 386. entry of the consent; and that the surrenderee was admitted, but did not take possession. 6. And semble, that a jury ought not so to assume, on these facts alone. 7. The objection to the want of counsel, or to its not being expressed in the surrender and admission, may be taken by a party claiming as heir to the wife. 8. The statement, in the case, of the necessity of the husband's consent, cannol be understood to apply to cases only where he has an interest at the time of the surrender. 9. A surrender expressed that S. " came by W. H. and R. J. his assignees duly appointed." Held to be no proof, against a party disputing the surrender, that S. bad been a bankrupt, nor of W. H. and R. J. having been authorised by him to appear. 10. A surrender so expressed does not satisfy a custom, that a surrender may be made by attorney duly appointed, and that, when a surrender is so made, it is to be mentioned in the surrender that it was made by attorney duly appointed. 11. By a deed of January 1796, reciting S.'s bankruptcy, and the conveyance under it of land, belonging to S., to T. W., T. W. conveyed to B. for the purpose of making a tenant to the prsecipe. B. was no party to this deed; but he, in February 1796, by deed not referring expressly to the bankruptcy or the previous deed, conveyed the lands to a tenant to the prseeipe, and declared the uses of the recovery to be to his mother for life, remainder to himself in fee; the parties to the intended recovery, named in this deed, were the same as those mentioned in the preceding: Held, that B., in a suit respecting other land, was not estopped from disputing S.'s bankruptcy. 12. If the husband of a woman who, in 1796, has a reversionary estate tail in copyhold lands in which there is no curtesy, be proved to have been a bankrupt in 1796, and the wife's estate tail afterwards vest in possession, and she surrender it in 1803, this is not prima .facie proof, as against the son of the two, claiming under the entail, that the husband had no interest at the time of the surrender. 13. Semble, that it would be such prima, facie proof as against the husband. [S. C. 4 N. & M. 857; 1 H. & W. 287 ; 4 L. J. K. B. 167.] On the trial of this ejectment, at the Herefordshire Summer Assizes, 1833, before Tindal C.J., the jury found a verdict for the plaintiff, subject to the opinion of this Court on the following case :- [266] The premises in question are copyhold of inheritance of the manor of Bromyard and Bromyard Foreign, in the county of Hereford. On the llth of April 1749, Anthony Kerry, being seised of the premises in fee, according to the custom of the said manor, duly surrendered them to the use of the said Anthony Kerry, James Lane, and Elizabeth his wife (the daughter of the said Anthony Kerry), successively, and after their deceases to the heir or heirs of the body of the said Elizabeth by James, remainder over. Anthony Kerry was, on the same day, duly admitted tenant of the aame premises. Elizabeth, the wife of the said James Lane, died in 1759, leaving issue by the said James Lane two daughters, Mary and Elizabeth. By the custom of the manor there is no coparcenary, but the eldest daughter is the sole heir : and, therefore, on the death of Elizabeth the mother in 1759, the estate tail vested in Mary the eldest daughter. She survived Anthony Kerry, who died in 1770, and also James Lane, who died in January 1803. In 1769 Mary Lane was married to Brown Shelton the Elder, by whom she had issue four children ; Brown Shelton the Younger, the defendant ; James Lane Shelton, the second son ; a daughter named Mary Maria ; and Joseph Shelton, the younger son, who was the father of Joseph Lane Lucas Shelton, one of the lessors of the plaintiff. The lessors of the plaintiff put in a deed of January 26th, 1796, purporting to be between Thomas Wood, of the first part; Richard Jones, of the second part; James Lane, of the third part; Mary, the wife of Brown Shelton the Elder, of the fourth part; William Hyde, of the fifth part; and Brown Shelton, the Younger, of the sixth part; whereby it was recited that, by a [267] settlement in 1773, made soon after the marriage of.Brown Shelton the Elder and Mary his wife, and also under and by virtue of divers proceedings, conveyances, and assurances in the law, had, made, done, and executed by virtue of and under a commission of bankrupt bearing date the 8th of January 1781, awarded and issued against the said Brown Shelton the Elder, by the description, &c., a certain estate at Eastham had been conveyed to the 3 AD. &E. 288. DOK V. SHELTON 415 said Thomas Wood and to Benjamin Taylor, deceased, and their heirs, during the life of Brown Shelton the Elder, in trust, for the aole and separate use of Mary the wife of the said Brown Shelton, for her life, remainder to the said Mary for her life, remainder to their issue in tail male, with divers remainders over. And, after further reciting that it was intended that a common recovery should be suffered, wherein the said James Lane should be demandant, and Richard Barneby should be tenant, and Brown Shelton the Younger should be vouchee, the indenture then conveyed the said freehold premises to Brown Shelton the Younger, for the purpose of vesting the freehold in him...
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