James v Salter and Another
| Jurisdiction | England & Wales |
| Judgment Date | 12 November 1837 |
| Date | 12 November 1837 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 198
IN THE COURT OF COMMON PLEAS
See S. C. 3 Bing. N. C. 544.
james v. salter and another. Jan. 28, 1836. [SeeS. C. 3-Bing. N. C. 544.] 1. A. devisee claiming an annuity granted by will, is not barred under 3 & 4 W. 4, c. 27, ss. 2 and 3, by the lapse of twenty years, if he has never received any payment in respect of the annuity.-2. By the will the annuity was charged on testator's freehold, provided certain leasehold property specified in the will proved to be insufficient : Held, that even as against the annuitant, the will by itself was no evidence that the testator died possessed of leasehold property. Replevin of chattels distrained in a dwelling-house, farm, and lands in the parish of Uffculme, Devon, on the 17th of March 1835. The Defendants by their avowry and cognisance alleged, that the dwelling-house, farm, land, and premises in which, &c., heretofore, to wit, on the 10th of November 1804, were the freehold premises of one John Salter, since deceased, late father of the Defendant Salter, and continued so until and at the time of the decease of the said J. Salter; that the taking the said goods and chattels as in the declaration mentioned, was done under and in pursuance of a certain power contained in the last will and testament of the said J. [506] Salter, deceased, bearing date the 3d of August 1800, for raising and paying a certain annuity, yearly rent, or sum of 301. given and bequeathed in and by the said will to the Defendant Salter, and charged and chargeable on the said freehold premises of J. Salter, deceased; and because the sum of 8701., part of the said annuity, yearly rent, or sum of 301. accruing due at Christmas-day last, was behind and unpaid for the space of twenty days after the said Christmas-day, the same having been lawfully demanded and not paid, the Defendant Salter, in his own right well avowed, and the other Defendant as bailiff to the Defendant Salter, well acknowledged the taking the said goods and chattels in the declaration mentioned, to satisfy the said arrears, according to the purport, tenor, and effect of the said will; and that, the Defendants were ready to verify. Pleas in bar: first, that the said J. Salter, deceased, late father of the Defendant Salter, in and by his said last will and testament, bearing date, to wit, the day and year in the avowry and cognisance alleged, ordered and directed that the said annuity, yearly rent, or sum of 301. thereby bequeathed to the Defendant Salter, as in the avowry and cognisance was mentioned, should be paid and -payable out of certain leasehold premises, to wit, the undivided moiety or halfendeal of certain leasehold estates called Astons and Chappies, otherwise Elford; and did in and by his said last will and testament charge and subject the said leasehold estates called Astons and Chappies, otherwise Elford/to and with the payment of the said annuity,.yearly rent, or sum of 301. accordingly; and did thereby declare that,: in case the said annuity, or yearly rent, or sum of 301., or any part thereof, should at any time during the life of the said 2 BINC. (N. C.) 507. JAMES V. SALTEK 199 Defendant Salter be behind and unpaid for the space of twenty days next over, or after any or either of the periods or days of payment whereon the same was [507] directed to be paid, being lawfully demanded and then not paid, that then and so often it should and might be lawful to and for the Defendant Salter to enter upon the said premises thereby charged with the said annuity, and to distrain for the same, or so much thereof as should be so in arrear; and the testator did thereby further declare that in case the said moiety or halfendeal of the said leasehold estates should prove insufficient to discharge the said annuity of 301., then that such deficiency should be made up out of the rents and profits of the testator's freehold premises situate in the county of Devon; and the testator did thereby also in that case charge the same and every part thereof to and ~with the payment of such deficiency, and gave unto the Defendant Salter, in case of the nonpayment thereof upon the said days or times thereinbefore mentioned, such and the like power of distress for the recovery of the arrears of the said annuity upon the said freehold premises as was thereinbefore by him given to the Defendant Salter in that behalf upon the testator's leasehold estates : that the testator did not by his last will and testament further or otherwise charge the said annuity on his freehold premises, or any part thereof: that the testator afterwards to wit, on the 1st of May 1805, died possessed of the said moiety or halfendeal of the said leasehold estates in the will mentioned, without revoking or altering his said will; and that the said moiety or halfendeal of the said leasehold estates in the will mentioned, at the time of the decease of the testator, was, and thenceforth hitherto had remained and continued sufficient to discharge the said annuity, yearly rent, or sum of 301. in the said avowry and cognisance mentioned : and that, the Plaintiff was ready to verify: Secondly, That the said distress in the avowry and cognisance mentioned was not made at any time within twenty years next after the times at which the right to [508] make a distress for the arrears of the said annuity, yearly rent or sum.of 301, first accrued to the Defendant Salter: and that, the Plaintiff was ready to verify. '-.---. Eeplication : That the testator did not die possessed of the said moiety pi1 halfendeal of the said leasehold estates, or any part thereof, in manner and form as in the first" plea was alleged. Then, as to the second plea, that so far as the same related to 5851., part of the money in the avowry and cognisance mentioned, the distress was made within twenty years next after the time at which the right to make a distress for the said sum of 5851., and every part thereof, being the arrears of the said annuity, yearly rent, or sum of 301., first accrued to the Defendant Salter. And as to the residue of the second plea in bar, so far as the same related to the residue of the money in the avowry and cognisance mentioned, the Defendants relinquished their avowry and cognisance, and prayer of judgment, so far as the same related thereto. At the trial, before Gurney B., last Devon assizes, the Plaintiff put in evidence the probate of the testator's will, and contended that as the avowant claimed under that will, it was, as against him, evidence that the testator died possessed of leasehold, in which case the Defendant had no right to resort to the testator's freehold. It was also objected, that the claim had not been made within twenty years, as prescribed by 3 & 4 W. 4, c. 27, s. 2. The learned Baron being of opinion that the Defendants had no right to distrain, directed the jury to find a verdict for the Plaintiff. But Bompas Serjt. obtained a rule nisi forva='n'ew trial, on the ground that the will of the deceased was no evidence that he died: possessed of leasehold property, and that the avowant's claim did not fall within the provisions of 3 & 4 W. 4, c. 27, s. 2. [509] Erie shewed cause. The will contained a declaration by the testator that he was possessed of leasehold property, and a party who claims under him is bound by his declarations. In Ivatt v. Finch (1 Taunt. 141), upon an issue between A. & B., whether C. died possessed of certain property, it was held, that evidence might be given of declarations made by C. that she had assigned the property to A. [Tindal C. J. The declarations in that case were against the interest of the party making them.] But the avowant by adopting the legacy elects thereby to adopt the title of the testator. 2 Williams's Law of Executors, 887. In Dillon v. Parker (1 Swanst. 76) it was held that where the acts of a party bound to elect between two inconsistent rights, in order to constitute election, must imply a knowledge of the rights, and an intention to elect, the execution of deeds containing recitals of the character in which the party claimed, and the exercise of a power to dispose of estates in that character, 200 JAMBS V. SALTEK 2 BING. (N. C.) 510. amounted to conclusive evidence of election. Here, the avowant by exercising the power which enabled him to distrain on the leasehold, elects to admit that the testator had such leasehold. At all events the claim is barred by the statute 3 & 4 W. 4, c. 27. By s. 2 of that statute it is enacted, " That after the 31st day of December 1833, no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or, if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same." [510] And the avowant's right first accrued when the first half year's annuity...
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