Fraunces's Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1616 |
| Date | 01 January 1616 |
| Court | Court of the King's Bench |
English Reports Citation: 77 E.R. 609
King's Bench Division
See Scaltock v. Harston, 1875, 1 C. P. D. 109.
[89 b] fkauncer's case. Mich. 7 Jacobi 1. [See ScaltocJc v. Harston, 1875, 1 C. P. D. 109.] In replevin, the defendant avowed taking the cattle damage feasant. The plaintiff pleaded in bar a devise to one I. of the lands in which, &c. for sixty years, who demised them to the plaintiff for one year. The defendant replied, a feofi'ment in fee after the making the will, to the use, amongst other uses, of the said I. for sixty years after the death of the devisor, with a proviso, if the said I. should disturb T. and others, &c. so that they could not quietly enjoy the tenements the devisor conveyed to them, &c., or if the said I. should not permit the executors of the said devisor to have and remove, &c. all the goods and chattels, &c. of him the said devisor, which should then be in his mansion house, or if he should do any thing to impede and frustrate the intention of the devisor expressed in his will, the use should cease and be void. And further pleaded, that I. entered into a house where certain goods of the devisor were, and took them ; and that the executors came and requested the said I. to let them take away the said goods, but that the said I. would not permit the executors to take them away: but that he altogether prevented and hindered them from so doing; and then the defendant concluded his replication by averring that the said use to I. ceased. On demurrer, judgment was given for the plaintiff. And resolved,-1. The words of the proviso are sufficient, to make the use limited to I. for years, cease. 2. A denial by parol is not any breach of the condition, but there ought to be some act done; as after request made by the executors shutting the door against them, or laying his hands upon them. 3. If the defendant had shewed a special act of disturbance against the words of the proviso, yet the said I. should not lose his term, for being a stranger to the feotfment, notice ought to be given to him of the proviso and of the will. 4. Although the title by which the plaintiff' claims in his bar to the avowry is (c) Hob. 51, 52. F. N. B. 212 b. Booth 144. Com. Dig. Pleader 3 E. 2. t F. N. B. 212 f. (a) Br. Form. 37. K. B. vi.-20 610 FRAUNCES'S CASE 8 CO. REP. 89 b. destroyed, yet he shall have judgment by reason of the title which the defendant has given him. The feoffee of land or bargainee of a reversion by deed indebted and enrolled shall not take advantage of a condition for nonpayment of rent reserved on a lease, upon demand by them; unless they have first given notice to the lessee of the feoffment, &e. If there be a bargain and sale of a manor by deed indented and enrolled, and a copyholder before any notice given to him of the bargain and sale refuse to pay his rent to the bargainee, it is not a forfeiture of which the lord can take advantage. *If a feoffment be made on condition that the feoffee shall give the land to the feoffor, and to the wife of the feoffor, and to the heirs of their two bodies begotten, the remainder to the right heirs of the feoffor if the husband dies, living the wife, the feoffee ought to make the estate to the wife, &c. as near the condition and as near the intent of the condition as he can make it, viz. to the wife for life, without impeachment of waste, and after her decease to the right heirs of her husband and her begotten, remainder to the right heirs of her husband.* ~*When a man binds himself to perform the award of a stranger, it is not necessary to give him notice that the stranger has made his award.* S. C. Brownl. 277. 3 Bulst. 327. Cart. 172. 1 Roll. 430, 431. [89 b] In a replevin between Richard Milner, plaintiff, and Thomas Fraunces, defendant, which began Mich. 6 Jaeobi, Rot. 2220, of his cattle taken at Bloxwich in the county of Stafford, in a place called Newland, the defendant did avow the taking of the cattle in the place where which contained six acres, &c. because it was his freehold, and so did avow for damage t. The plaintiff' in bar to the avowry pleaded that one Richard Fraunces was seised of the said six acres in fee, and held them in socage, and 7 December 45 Eliz. by his will in writing (whereof he made Richard, Edward, and James his sons his executors) devised them to John Fraunces his eldest son for the term of sixty years, if the said John should so long live, the remainder thereof to the said Thomas Fraunces for his life, the remainder to the heirs males of the body of the said John Fraunces, the remainder to the heirs males of the body of the said Thomas with divers remainders in tail to his other sons, the remainder to the right heirs of the devisor: and afterwards, 30 Jan. next following, the devisor died, by which John Fraunces entered into the said six acres, and was thereof possessed, and 25 Martii, 5 Jac. demised the said six acres to the plaintiff for one year next ensuing, wherefore he put in his said cattle, &c. In answer to the bar of the avowry the said Thomas Fraunces said, [90 a] that the said Richard Fraunces the father was so seised, &c. and made his will, as in the bar to the avowry is alleged. And further, that the said Richard Fraunces the father was seised in fee of twenty acres of pasture in Tibbington, and of a house and five acres of land in Dorlaston in the said county, and also of the said six acres, in which, &c. And the said Richard, the father, after the making the said will, 8 Jan. 45 Eliz. by his deed of all the said lands, did enfeoff Richard Fraunces his son, and John Alport, and their heirs, to the uses and intents following, sell, to the use of Richard Fraunces the father for his life ; and after his death, of the lands in Tibbington, to the use of the said Thomas Fraunees and his heirs; and of the lands in Dorlaston, to the use of the said James Fraunces, his heirs and assigns ; and of the said lands in Bloxwich, in which, &c. to the use of the said John Fraunces for sixty years after the death of the said devisor, if the said John so long should live; and after to the use of the said Thomas for life; and after to the heirs males of the body of the said John; and afterwards to the heirs males of the body of the said Thomas, with divers other remainders in tail to his other sons ; the remainder to the right heirs of the feoffor, with this proviso in the deed : et itlteriuH per script' prced' (a) provision fuit, quod si prced' Johan' Fraunces disturbaret eund' Thomam Fraunces, vel prced' Jacobum...
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