Dykes v Blake
| Jurisdiction | England & Wales |
| Judgment Date | 10 May 1838 |
| Date | 10 May 1838 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 866
Common Pleas Division
S. C. 6 Scott, 320; 1 Arn. 209; 7 L. J. C. P. 282. Referred to, Gibson v. D'Este, 1843-48, 2 Y. & C. C. C. 558; 1 H. L. C. 605.
866 DYKES V. BLAKE 4 BING. (N. C.) 463. daughters claim, does by necessary intendment carry the same quantity of estate, as that from which it is excepted. Out of the devise to his two sons of the estate he occupies, the testator excepts " the house I now occupy, with the cottages thereon occupied by Clegg and Cleverley, and all other conveniences thereon." And if a contrary construction should be adopted, and it should be held that because the testator had used in the exception the words, house and cottages thereon, he only intended an estate for life to the daughters, a similar construction ought to be put on the words of the devise to the sons, " with the factory and all the edifices and appurtenances thereon ; " but this would lead to a consequence which seems contrary to the intention of the testator, namely, that the sons James and Joshua should take the fee in the estate he occupied, but only take an estate for life " in the factory and all the edifices and appurtenances thereon," which upon their death should go over to the eldest son and heir at law ; whilst under the same construction the two devisees, James and Joshua, upon the death of their sisters, would take the house and cottages on the estate occupied by the testator, in fee ; a construction which appears to us to be unreasonable. But looking at the devise generally, we think it amounts in effect to this,that he gives so much of the estate he occupied as he describes, to his two sons, and the remainder of his estate to his two daughters. Some reliance was placed in argument upon the circumstance, that in a subsequent part of the will the testator has devised to one of his sons by the same word estate, certain premises in which he states in his will, [463] that he had a leasehold interest only. The terms of that devise are, " that estate or tenement lying and being at Hartshead, occupied by R. F., which I hold under lease from the Earl of Stamford and Warrington, during the term of my lease." But as it appears manifest that in this particular devise the testator intended the word estate to carry the whole of the interest he had, we cannot draw the inference from it, that in the case where he uses that term in respect of lands which he holds in fee the general meaning of the term is to be restricted to less than the fee. We therefore think, under this devise, that the two daughters took an estate in fee, and consequently that a nolle prosequi must be entered. Judgment for Defendants. DYKES v. BLAKE. May 10, 1838. [S. C. 6 Scott, 320 ; 1 Am. 209 ; 7 L. J. C. P. 282. Referred to, Gibson v. D'Este, 1843-48, 2 Y. & C. C. C. 558 ; 1 H. L. C. 605.] By particulars of sale, lot 13 was described as building ground, and the adjoining lot 12 as a villa, subject to liberty for the purchaser of lot 1 to come on the premises to repair drains, &c. as reserved in lot 7. The reservation in lot 7 referred to a lease, which gave the occupier of that and several adjoining lots composing a row of houses, a carriage way in common, in front of the lots, and a footway at the back, and also a footway over lot 13. The particulars contained plans, which disclosed the carriage way in front, and the footway at the back of the houses, but not the footway over lot 13. But they stated that the lease of lot 7 might be seen at the vendor's office, and would be produced at the sale. Plaintiff having purchased lots 12 and 13 by one contract in ignorance of the footway over lot 13, Held, that the misdescription was such as to entitle him to rescind the contract as to both. This action was brought to recover the sum of 6331. Os. 5d., being the amount of deposit and auction duty paid by the Plaintiff to the Defendant, who was an auctioneer, on the purchase of two lots, Nos. 12 and 13, forming part of several lots of property at Camberwell, put up for sale at Garraway's Coffee House, in London, [464] on the 20th of May 1836, and delineated in the particulars of sale, as on the following plan : [465] At the trial, before Tindal C. J., London sittings after Hilary term, 1837, a verdict was found for the Plaintiff, subject to the opinion of this Court, who were to draw such inferences from the facts stated in the following case, as a jury might have done. Previously to the time of the sale, printed particulars with conditions of sale had been issued to the public. The particulars thus issued contained the following description of the said lots 12 and 13 :" Lot 12. The celebrated Fountain Cottage (describing it) let to L M. Gerothwohl, Esq., upon an agreement for a lease for nine years, from Midsummer 1833. The covenants, in the agreement will be read at the time of sale. The purchaser of this lot will be entitled to a right of carriage and footway, 13 feet in width, over lot 13, on the northern boundary thereof, as she wn upon the plan ; bearing and paying one moiety of the expense of keeping the road in repair. This lot is supplied with water from lot 1, without any rent or payment for the same ; and the purchaser will be entitled to have water supplied as heretofore from lot 1 until Midsummer 1842, but not afterwards ; and the lot is sold subject to liberty for the purchaser of lot 1 to come upon the premises at all reasonable times to repair the main laid from the reservoir in lot 1 and the drain and sewer in the same premises, in like manner as reserved in-lot 7." " Lot 13. A first rate building plot of freehold ground, land tax redeemed, called the Crescent Field, lying between lots 10 and 12, enclosed from the grove by an ornamental iron fence, to which it has a frontage of 86 feet, besides another frontage of about 90 feet to the Crescent sweep, as shewn upon the plan. Unquestionably as fine a situation for building as any in Camberwell : together with the stable-yard...
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