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John Doe, on the several demises of James F. N. Daniel and Others, - Plaintiff in Error; George Woodroffe, - Defendant in Error

Nominate Series English Reports Cited authorities 8 Cited in 2 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date30 July 1849
Date30 July 1849
CourtHouse of Lords

English Reports Citation: 9 E.R. 1301

House of Lords

John Doe, on the several demises of James F. N. Daniel and others,-Plaintiff in Error
George Woodroffe,-Defendant in Error

Mews' Dig. vi. 234, 328, 346; ix. 172; xiv. 386. S.C. 13 Jur. 1013; in Ex., 10 M. and W. 608; 12 L.J. Ex. 147; in Ex. Ch. 15 M. and W. 769; 7 Jur. 959. Cited on point as to right of entry (10 M. and W. 608, app. 632) in Cowan v. Milbourn, 1867, L.R. 2 Ex. 235.

Deed - Poll - Base Fee - Merger - Estopped - Entry - Remitter.

[811] JOHN DOE, on the several demises of JAMES F. N. DANIEL and others,- Plaintiff in Error; GEORGE WOODROFFE,-Defendant in Error [July 4, 5, 6, 7 and 10, 1848; July 27 and 30, 1849]. Et e Contra. [Mews' Dig. vi. 234, 328, 346; ix. 172; xiv. 386. S.C. 13 Jur. 1013; in Ex., 10 M. and W. 608; 12 L.J. Ex. 147; in Ex. Ch. 15 M. and W. 769; 7 Jur. 959. Cited on point as to right of entry (10 M. and W. 608, app. 632) in Cowan v. Milbourn, 1867, L.R. 2 Ex. 235.] Deed-Poll-Base Fee-Merger-Estopped-Entry-Remitter. An estate being limited to the use of A. and his wife, and the heirs of their bodies, with remainder to A. in fee, and A. having died, leaving his widow, and G., an only son, and L. and H., only daughters, the widow, in 1735, by deed-poll, in consideration of an annuity granted to her by G., and of natural affection, granted, surrendered, and yielded up the estate to him in fee; and he afterwards, during her life, suffered a recovery. She died in 1767. G. died, without issue, in 1779, having devised the estate to trustees, to secure an annuity to B., only son of his sister L. (then dead), and subject, thereto, to W., eldest son of B., for his life, with remainder to B.'s second son. In 1790, W., on his father's death, entered into possession of the whole estate, claiming under the will of G., and subsequently did various acts in the character of devisee for life. In 1814 he suffered a recovery of one moiety of the estate, and in 1816 conveyed the entirety to mortgagees in fee. In 1818, M., the 1301 II H.L.C., 812 DOE d. DANIEL V. WOODROFFE [1849] descendant of H., the other coparcener, suffered a recovery of the other moiety, which, it was declared, should enure (subject to the trusts of a term) to the use of W.'s mortgagees: Held, by the Lords-affirming a judgment of the Court of Exchequer Chamber,- 1st, That the deed-poll of 1735 operated as a covenant to1 stand seised, and created a base-fee, determinable by the entry of the issue in tail: 2d, That this base-fee did not, on the widow's death, become merged in the reversion in fee in G., as the estate tail subsisted as an intermediate estate: 3d, That, although G., being estopped by the recovery suffered by him, was not remitted to the estate tail, no right of entry accrued to any one until his death, and therefore the period of twenty years, for the operation of the Statute of Limitations against the issue in tail, was to be calculated from his death, and not from the death of his mother, and consequently W.'s entry (in 1790) was not barred by lapse of time; 4th, That although W. entered under the will, and manifested an intention to take the estate under it for his life only, that was immaterial, and he was remitted as to his moiety to the original estate tail, which was barred by the recovery in 1814; and 5th, That the entry and remitter of W. did not operate to remit his coparcener M., to the other moiety of the estate. These writs of error arose out of an action of ejectment, brought in the Court of Exchequer, upon eight several demises by the several lessors of the plaintiff, against the defendant, George Woodroffe, to recover possession of certain lands and tenements in the county of Surrey. The cause was tried at the Sum-[812]-mer Assizes for that county, in 1839, and a verdict was found, for the defendant as to- part of the premises, and for the plaintiff as to the residue. A rule for a new trial having been obtained, the parties, at the suggestion of the Court, agreed that the facts should be stated in the form of a special case, with leave to turn the case into a. special verdict, which was accordingly done. The special verdict set forth all the facts and documents relied on by both parties; but the following are sufficient to raise the questions for the decision of this House (for a fuller statement, see 10 Mee. and Wels. 608): - By indentures of lease and release, dated January 1710-recited to be made in pursuance of marriage articles-George Woodroffe, being seised in fee of the lands in question, conveyed them to the use of himself for life, remainder to; his first and other sons in tail male, remainder to the use of his brother Robert Woodroffe and Hester his wife, and the heirs of their bodies, with remainder to the use of the said Robert in fee. Robert died intestate in February 1710, leaving the said Hester, his widow, and three children by her, namely, George, his only son, and Lettice and Hester, his only daughters. George Woodroffe, the settlor, died in 1713, without having had any issue, whereupon Hester, widow of Robert, entered into possession of the said lands. By a deed poll, executed by Hester Woodroffe in 1735,-after reciting the indentures of settlement of 1710, and the death of the settlor without issue, and the death of the said Robert, leaving issue by Hester as aforesaid, and that by no means thereof, and by virtue of the said settlement, the lands in question were well vested in her for her life, with the immediate remain-[813]-der thereof to her son George,-she, in consideration of an annuity granted by him to her, and of natural love and affection, granted, surrendered, and yielded up the premises to him, his heirs and assigns forever. Upon the execution of this deed, George, the son, entered into possession of the lands, and afterwards, in the same ye&r, by deed of bargain and sale enrolled, conveyed them to a tenant to the prec-ipe in a common recovery to be suffered by him to the use of himself in fee, which recovery was accordingly suffered in the same year, and therein he was vouched, but Hester, his mother, was not vouched. This George Woodroffe was twice married, first, in 1735, shortly after the said recovery, and again in 1765, and on both occasions he made settlements of the lands in question by deeds of lease and release, but both his wives having died, and there being no issue of either marriage, the estates created by those settlements terminated in his lifetime. Hester Woodroffe died in 1767, without having done any act;-except executing the deed poll-to alter or affect the title of the said lands, leaving her son George in 1302 DOB d. DANIEL V. WOODROFFE [1849] II H.L.C., 814 possession of them, who' thereupon became the heir in tail under the settlement of 1710. His elder sister, Lettice, wife of William Billinghurst, had previously died, leaving the Rev. Wm. Billinghurst her only son and heir. He had issue two sons, William and George, each of whom afterwards took the name of Woodroffe, and the latter is the defendant in the first writ of error. Hester, the other sister of George Woodroffe, was twice married, first to Thomas Caverley, and, surviving him, she married a second husband, and died in 1784, leaving Ann, then wife of Thomas Walker, her only child and heiress at law. Mrs. Walker died in 1797, leaving a daughter Jane, her only child and heiress at law, who, having [814] survived D. Watherstone, her first husband, married, for her second husband, William Mordaunt Maitland, who is one of the lessors of the plaintiff. George Woodroffe (son of Robert and Hester Woodroffe) died in 1779, having by his will declared that he devised considerable estates, including the lands now in question, to two trustees, in trust to pay an annuity of £200 to his nephew, the said Rev. W. Billinghurst, for his life, and, so charged, he devised the estates to the use of William Billinghurst, eldest son of his said nephew, for his life, with remainder to his first and other sons in tail male, with remainder to George, his said nephew's second son, for his life, with remainder to his first and other sons in tail male, with divers remainders over. The will contained a direction that all persons taking the devised estates should take the name and arms of Woodroffe. On the testator's death the trustees named in his will entered upon the devised estates. The Rev. Wm. Billinghurst and Hester Caverley were, at the testator's death, co-heirs of the bodies of Robert Woodroffe and Hester his wife. On the Rev. W. Billinghurst's death in 1790, his elder son William, having then attained his age of twenty-one, took the name and arnrs of Woodroffe, and entered into possession of the lands in question. Between that time and the year 1814, he executed various deeds, in which he was stated to be tenant for life under the said will; but in 1814 he suffered a recovery of one moiety of the lands comprised in the settlement of 1710, declaring the use to himself in fee; and by indentures of lease and release,, dated February 1816, he conveyed the entirety of the said lands to Robert Stuart and Mark Drury in fee, by way of mortgage, to secure a sum of £10,000, with the usual proviso for redemption reserved to him and his heirs. [815] In Easter Term 1818, the said W. M. Maitland and Jane his wife (granddaughter and heiress of Hester Caverley) suffered a recovery of her moiety of the lands in question, which was, by other deeds executed in the same year, declared to enure to the use of the said W. M. Maitland for five hundred years, to secure to him £4500, Pedigree. george woodroffe (the settlor of 1710): robert woodroffe-hester. george woodkoffe, (the Testator), died .s. p. 1779. I lettice woodroffe, married W. billinghurst. I The Reverend W. billinghurst, who died in 1790. hester woodhoffe, married J. Y. caverley, and after him a second husband, and died a widow in 1784, leaving issue. ! ann, who died in 1797, leaving issue. W...

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