Duppa, Executor of Baskervile, v Mayo

JurisdictionEngland & Wales
CourtCourt of the King's Bench
Judgment Date01 January 1845
Date01 January 1845

English Reports Citation: 85 E.R. 366


Duppa, Executor of Baskervile

[282] 42. duppa, executor of baskervile, versus mayo. S. C. 2 Keb. 576. S. C. cited 5 Mod. 214. 3 East, 124, 125. In debt for rent if the plaintiff demands more than upon his own showing is due, he may, after demurrer, remit the overplus and enter judgment for the rest. Debt for arrears of a rent-charge ought regularly to be brought against all the pernors of the profits of the lands liable; but if it be not, defendant can only take advantage of it by plea. The lWMS.8AUND.a82, TRIN. 22 CAB. II. REGIS 367 word postea, (notwithstanding a repugnant scilicet,) is sufficient where the party alleges matter of fact only, but not where he mistakes the law. Rent is not regularly clue until midnight of the day on which it is reserved. Debt (1) for the arrears of a rent-charge against the defendant as pernor of the profits: the plaintiff declares for 13601. and shows that Robert late Earl of Essex waa (1) The executors of tenant for life of a rent-charge and of tenant par cotter vie, after the death of cestui qwe vie, might bring debt to recover the arrear of such rent by the common law; and although the contrary might, at first view, be inferred from the generality of the preamble of the statute 32 H. 8, c. 37, which recites, that " by the order of the common law, executors of tenants for term of life of rent-charges had no remedy to recover such arrears," yet these words have in construction been restricted to mean, tenants pvr autre vie so long as cestui qite vie lives. Co. Lilt. 162 a. b. 4 Rep. 49 b., Ognel's case.(y) But the executors of tenant for life could not distrain for the arrears by the common law, which they may now do by force of this statute. Ibid. Indeed, in Turner v. Lee, Cro. Car. 471, it was held, that the statute did not extend the remedy by distress to those persons who had remedy by action of debt by the common law, and therefore it was said, that executors of tenant for life could not distrain. However, in Cro. Eliz. 332, Lambert v. Austin, it seems to have been taken for granted that the statute did not operate thus restrict!vely; and iit 1 Ld. Raym. 172, Rod v. Sell, the case of Turner and Lee is denied, and it is said " that the statute 32 H. 8 is a remedial law, and shall extend to all tenants for life, and the law has been taken always to be so since the statute, and has never been questioned ; and that the words of the statute are general enough." See Co. Litt. 162 a. b., and Mr. Hargrave's notes, 289-299. Lord Coke recommends the remedy by distress as the most plain and certain. Co. Litt. 162.(z) (y) Debt will not lie by the common law for the arrears of a rent devised to A. payable out of land during the life of B. so long as B. lives. The reason is, because the law will not suffer a real injury to be remedied by an action merely personal. [See post, vol. ii. p. 304, note (8).] Neither does it lie by force of the stat. 8 Ann. c. 14, s. 4; for that statute applies only to cases of demises from landlord to tenant. 4 M. & S. 113, Webbs v. Jiggs. [3 B. & B. 130, Kelly v. Olubbe. 6 B. Moore, 335, S. C. 4 M. & W. 133, Randal v. Rigby.} (z) The first clause of the stat. 32 H. 8, c. 37, enacts " that the executors and administrators of tenants in fee-simple, tenants in fee tail, and tenants for term of lives, of rent services, rent charges, rent seeks, and fee farms, may distrain for the arrearages of all such rents and fee farms, upon lands charged with the payment of the same, and chargeable to the distress of the testator, so long as the said lands continue in the seisin or possession of the tenant in demesne, who ought to have immediately paid the said rent or fee farm, or in the seisin or possession of any other person or persons claiming the said lands, only by and from the same tenant, by purchase, gift, or descent, in the manner and form as their testator might or ought to have done, in his lifetime; and the said executors and administrators shall, for the same distress, lawfully make avowry upon their matter aforesaid." Upon this clause a question aroae, whether the executor of a person seised in fee of land, who had demised it to a tenant for years, could, after the death of the lessor, distrain for arrearages of rent. See the cases collected in Sehv. N. P. 664. See also 2 B. Moore, 48, Meriton v. Gilbee. 8 Taunt. 159, S. C. 1 Brod. & Bing. 279, Martin v. Burton. 3 Moo. 608, S. C. [2 Bing. 193, Stamford v. Sinclair. 9 Moore, 376, S. C. The point was expressly decided in the negative in Prescott v. Boucher, 3 B. & Ad. 849 ; and Jones v. Jones, 3 B. & Ad. 967. But now by stat. 3 & 4 W. 4, c. 42, s. 37, " it shall be lawful for the executors or administrators of any lessor or landlord to distrain upon the lands demised for any term, or at will, for the arrearages of rent due to such lessor or landlord in his lifetime, in like manner as such lessor or landlord might have done in his lifetime." And by sect. 38, the distress may be made after the lease is ended, if made within six months, and during the continuance of the possession of the tenant who owes the rent. And all the provisions in the several 368 DUPPA V. MAYO 1 WMS. SAUND. 283. seised of a messuage, 200 acres of land, 20 acres of meadow, 100 acres of pasture, and 400 acres of wood with the appurtenances, in Bodenham, Rosebury, Moore, Bearfield and Maund, in the county of Hereford, in his demesne as of fee ; and being so seised, on the 4th of December, in the 43d year of Elizabeth, demised the said tenements to Sir Thomas Coningsby, Knight, habendum for 99 years, if Fitzwilliam Coningsby, Katherine arid Ursula Coningsby, or either of them, should so long live; by force of which demise the said Sir Thomas Coningsby entered and was possessed ; and being so possessed afterwards, to wit, on the 10th of August 1616, made his will in writing, whereby (among other things) he gave and bequeathed to Dame Elizabeth Baskervile, (the plaintiff's testatrix), and Thomas Baskervile her son, an annuity of 501. a-year out of the demesne lands of the devisor in Orleton and Ashwood Park; to have and to hold the said annuity to them for their lives, and the life of the longer liver of them, (with a formal clause of distress); and that after the said Thomas Baskervile should attaiu the age of 13 years, (his mother being alive,) then the said Thomas should have 201. yearly of the said devised 501. for his better maintenance dnring his mother's lifetime, and then the whole in manner aforesaid devised; and that afterwards, to wit, on the 19th of September 1617, the said Thomas Coningsby, reciting that by bis last will he had given several annuities and legacies to be paid out of his demesne lauds, but had now sold his said demesnes in Orleton, whereby the legacies could not take effect out of those lands, he for this reason declared his intent, and gave and bequeathed to Sidney Coningsby his son 100 marks a-year, to be paid to the said Sidney during his natural life out of all or any of the manors, messuages, lands, and tenements which the said Thomas Coningsby held by lease in Harden, Bodenham, and Laominster, in the said county of Hereford, payable quarterly at four feasts, with a clause of distress, if it should be in arrear for 28 days after it ought to be paid. And the said Thomas Coningsby by his last will further bequeathed, [283] that the said Elizabeth Baskervile and Thomas Baskervile should have the said annuity of 501. a year devised to them for and during their lives, and the longer liver of them, the whole 501. aforesaid to be paid to the said Elizabeth Baskervile until the said Thomas Baskervile should attain the age of 13 years, (his mother being alive), and then 201. thereof to be paid yearly to the said Thomas for his better maintenance, and that the said annuity of 501. should be paid yearly out of the same manors, messuages, lands, and tenements aforesaid, at the same days and times, in such manner, and upon like penalty of distress and forfeiture, as in the said will were declared for and concerning the said annuity of 100 marks; and made the said Fitzwilliam Coningsby executor of the said will; and afterwards, to wit, on the first of May in the year of our Lord 1618, the testator died so seised; after whose death the executor proved the will, and entered into the said lands, and assented to the legacy ; and afterwards, to wit, on the first of June in the year of our Lord 1623, the estate, right, title, and interest of the said executor of and in the premises came to the said defendant; by virtue whereof he entered and was possessed, and being so possessed, 2501. (parcel of the said 13601.) of the rent of 501. so devised to the said Elizabeth until the said Thomas should attain the age of 13 years, for five years ended upon the Feast of St. John the Baptist in the year of our Lord 1628, (during which time the said defendant was pernor of the profits), were in arrear and unpaid to the said Elizabeth : and afterwards, to wit, on the twenty-fourth day of June in the year 1628 aforesaid, the said Thomas Baskervile attained his age of 13 years; and 11101. residue of the said 13601., of the said rent of 301. a-year so devised to Elizabeth after that Thomas should have attained his age of 13 years, for 37 years ended upon Lady-Day 1665, during which time the defendant was pemor of the profits, was in arrear and unpaid to the said Elizabeth in her life-time, and that the said Elizabeth afterwards made her will, and the plaintiff her executor, and afterwards died, the said money not being paid: whereby an action hath accrued to the plaintiff to demand and have the said money from the defendant, being pernor of the profits; yet the said, &c. and makes a profert statutes relating to distresses for rent are made applicable to such distress.] If a termor for years underlet for years and die, his executor may distrain for arrearages at common law...

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