Edward v Barnes and Another
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1835 |
| Date | 13 November 1835 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 99
IN THE COURT OF COMMON PLEAS
edwakds v. barnes and another. Nov. 13, 1835. Devise of " all my freehold and leasehold and all my money, securities, stock, goods, chattels, and all other my property whatsover and wheresoever; to hold the same unto and for the use of the devisee, her heirs, executors, administrators, and assigns :" Held to pass testator's copyhold property. The Plaintiff was the purchaser, at a sale by auction, of certain ground rents, arising out of certain lands, principally copyhold, but a small part freehold, situate at Brixton and Upper Tulse Hill, in the county of Surrey, sold by the Defendants to 100 MDWABDS 'ZJ. BARNES 2 BING. (N. C.) 253. the Plaintiff on the 27th of June 1834, on condition that the Plaintiff should have a conveyance thereof at Michaelmas 1834. This action was brought to recover from the Defendants the sums of 7231. deposit in part of a sum of 48201. purchase money, and 701. 5s. lOd. auction duty, paid by the Plaintiff, as purchaser of the said ground rents, to the Defendants : and the breach assigned in the declaration was, that, at the time of such sale, and at the time when the said [253] purchase ought to have been completed, the Defendants had not, nor could they procure any such title to the said copyhold premises from whence the said ground rents arose, or to the said ground rents, as enabled them to make to the Plaintiff a valid and effectual conveyance of the said ground rents; whereby they were prevented from making to the Plaintiff such conveyance as was stipulated for on the said purchase according to the said condition. The Defendants pleaded that, at the time of such sale, and at the time when the said purchase ought to have been completed, they had and were able to procure such a title to the said ground rents, and to the copyhold premises from whence the said ground rents arose, as enabled them to make to the Plaintiff a valid and effectual conveyance thereof according to the said condition : and thereupon issue was joined. Upon a special case the facts were as follows :-In the year 1808 James Doubtfire, of Stoke Damarell, in Devonshire, was seised in fee of the said freehold premises, and was also seised in his demesne as of fee, according to the custom of the manor of Lambeth, of the said copyhold premises, of which manor the said copyholds were held; out of which said freehold and copyhold lands the ground rents in question issued. In 1810 he was admitted to the said copyholds, and at the same time surrendered the same to the use of his will. At the time of making his will thereinafter mentioned, he continued so seised of the said freehold and copyhold premises; and was also possessed of certain leasehold property situate in Muffett Street and Cross Street, City Eoad, in the county of Middlesex; at Brixton Causeway and Nelson Square, in the county of Surrey; and of a ground rent of 111. per annum issuing out of a house in Nelson Square. He was not seised or possessed of any other land or ground rents whatsoever. [254] Being so seised and possessed, on the 6th of August 1823 he made and published his last will and testament in all respects duly executed for the purpose of passing freehold and copyhold estates, as follows:-" I give, devise, and bequeath unto my wife, Mary Doubtfire, all my freehold and leasehold, and all my money, securities for money, stock in government funds, goods, chattels, and all other my property whatsoever and wheresoever, to hold the same unto and for the use of my said wife, Mary Doubtfire, her heirs, executors, administrators, and assigns for ever, subject nevertheless to the payment of nearly 601. per annum to my sister, Sarah Hendey, of one annuity,-arising from part of the ground rents payable to me out of my manor of Brixton, in the county of Surrey, and the other part out of the ground rents payable to me from Muffett Street and Cross Street, City Eoad,-to hold the said annuity or sum of nearly 601. yearly unto my said sister, Sarah Hendey, her heirs and assigns for ever. And I constitute and appoint...
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