John Lumley Savile, Earl of Scarborough, against Doe on the demise of Frederick Lumley Savile, Esquire
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1836 |
| Date | 01 January 1836 |
| Court | Exchequer |
English Reports Citation: 111 E.R. 653
IN THE EXCHEQUER CHAMBER.(ERROR FROM THE KING'S BENCH
S. C. 6 L. J. Ex. 270. Applied, Ormonde v. Wandesford, 1839, 1 Ir. Eq. R. 254. Referred to, Atkinson v. Holtby, 1836, 10 H. L. C. 331. See Cope v. Delawarr, 1873, L. R. 8 Ch. 988. Followed, Milbank v. Vane, [1893] 3 Ch. 84.
[897] [The following case is printed out of its regular order, for the purpose of bringing it into the same volume with the special verdict, set out in the former case, p. 3, ante. Many of the authorities cited in the following argument are given more fully in the previous report, to which accordingly frequent reference has been made:-] in the exchequer chamber. (error from the king's bench.) john lumliy savjle, earl of scarborough, agaiiist doe on the demise op frederick lumley savile, esquire. [1836.] Lands were devised to R. for life; remainder to trustees to preserve contingent remainders ; remainder to R.'s first and other sons successively in tail male : remainder to J., R.'s younger brother, for life; remainder to trustees to preserve, &c.; remainder to J.'s first and other sons successively in tail male : remainder to F., another younger brother of It. ; remainder to trustees to preserve, &c.; remainder to F.'s first and other sons successively in tail male: remainders to other younger brothers of R.; and (after remainders to preserve, &c.) remainders respectively to their sons successively in tail male : remainders over. The will contained two provisoes. First, that every person and persons who, by virtue of the will, should become entitled to certain premises, being part of the lands devised, should, (a) See, as to stat. 3 & 4 W. 4, c. 27, s. 42, and stat. 3 & 4 W. 4, c. 42, s. 3, Paget v. Foley, 2 New Ca. 679. 654 THE EARL OF SCARBOROUGH V. DOE 3 AD. & E. 898. within two years after he and they should severally become so entitled, take upon himself and themselves the surname of S., jointly with any dignity or title that might be vested in him or them, and quarter the arms of S. with his or their own family arms, and take such means as might be requisite to enable him or them respectively so to do ; and, in case any such person or persons should refuse or neglect so to do, then the limitation to him or them (such neglect, &c., being made during the lives of R. or of any of his younger brothers, living at the devisor's decease, or within twenty-one years after the survivor's decease) should cease, determine, and become utterly void ; and the lands should immediately go to the person next in remainder under the will, in the same manner as if such person or persons so neglecting, &c., being tenant or tenants for life, was or were dead, or, being tenant or tenants in tail, was or were dead without issue male, without prejudice to such jointures, portions, terms, &c., as, by virtue of powers afterwards contained in the will, should have been limited, &c., before such cesser or determination of the estate of the person or persons so neglecting, &c. Secondly, that, if the title to a certain earldom (which was the only dignity or title shewn to exist in the family) should descend to any of them the said R., J., F., &e., or to any of their sons (within any of the lives, &c., as before), then, and in such case, and as and when the title should come to him or them, the estate which he or they should then be entitled to in the lands, under or by virtue of the will, should cease, determine, and become void ; and the lands should immediately go to the person and persons who, under the limitations aforesaid, should then be next in remainder expectant on the decease and failure of issue male of the person to whom the title should so come, in the same manner as such person or persons so in remainder would take the same by virtue of the will, in case he or they to whom the title should come was or were actually dead without issue; such person and persons so in remainder complying with the first proviso: provided that any such cesser of the estate of the person or persons to whom the title should come should not prejudice, &c. (as before, for preserving jointures, &c.). The title descended to R., while in possession of the lands, whereupon J. took possession, and assumed the name and arms of S. J. being in possession, a common recovery was suffered, in which the lands were conveyed (by lease and release by J. and his eldest son) to a tenant to the pnecipe for the joint lives of such tenant and J., and J.'s eldest son was vouched over, but J. was not vouched ; and the uses of the recovery were declared to be to J. for life, remainder over. While J. was in possession, F. and his eldest son, by deed truly reciting the facts, released their interest to trustees, who were strangers in interest, habendum to and to the use of the trustees in fee, upon such trusts as should correspond with the uses and trusts which had been declared of the recovery; and F. and his eldest son covenanted with the trustees that they had not encumbered or impeached, and for further assurance. Afterwards the title descended to J. F. having died, and his eldest son having brought ejectment against J. : Held, (assuming, first, that the second proviso was capable of operating more than once, and was not at an end upon the descent of the title to R.: assuming, secondly, that the proviso, upon the title coming to a tenant for life, determined the estates both of such tenant for life and of all his sons : assuming, thirdly, that the plaintiff was not barred or estopped by the release to the trustees, or by the above-mentioned covenants :) that the second proviso created no new estate on the descent of the title; that the lessor of the plaintiff could claim only by virtue of the limitation expectant upon the estate tail of J.'s eldest son ; and that the recovery defeated such a limitation, and was therefore a bar to the ejectment. [S. C. 6 L. J. Ex. 270. Applied, Ormonde v. Wandesfwd, 1839, 1 Ir. Eq. R. 254. Referred to, Atkinson v. Holtby, 1863, 10 H. L. C. 331. See Cope v. Delawarr, 1873, L. R. 8 Ch. 988. Followed, Milbank v. Vane, [1893] 3 Ch. 84.] Three actions of ejectment were brought against the father of the plaintiff in error, one for lands in Durham, another for lands in Yorkshire, and another for lands [898] in Nottinghamshire. The first was brought in the Court of Pleas of the County Palatine of Durham, the other two in the King's Bench. In the first, a special verdict was found and judgment entered for the defendant in the Court of Pleas of the County SAD. &E. 899. THE EARL OF SCARBOROUGH V. DOE 655 Palatine, which was reversed on error in the Court of King's Bench ; ante, p. 2. On that judgment error was brought in the House of Lords (and not in the Exchequer Chamber, as stated ante, p. 46). In the two actions for the lands in Yorkshire and Nottinghamshire, the same special verdict (a)1 was found, and judgment entered for the plaintiff in both, in the King's Bench, of Michaelmas term 1834. The defendant below having died, error was brought, in the Exchequer Chamber, on the judgment in the action for the lands [899] in Nottinghamshire, by the present plaintiff in error, as his heir and next in remainder. By consent of the parties, the special verdict was amended, by inserting, in the finding of the lease and release of July 1st and 2d, 1817 (ante, p. 11, line 24), the following portion of the deed :- "And each of them the said Frederick Lumley the Elder and Frederick Lumley the Younger, so far as related to his own acts and deeds only, did for himself, hia heirs, executors, and administrators, covenant and declare with and to the said Bryan Cooke and Philip Egerton Ottey (a)2, their heirs, executors," &c., " That they the said Frederick Lumley the Elder and Frederick Lumley the Younger have not, nor hath either of them, at any time heretofore made, done, committed, or executed, or knowingly or willingly permitted or suffered, or been party or privy to, any act, deed, matter, or thing whatsoever, whereby or by reason or means whereof the said manors, messuages," &c. "herein-before mentioned, and intended to he hereby granted and released, covenanted to be surrendered, and assigned, respectively, or any of them, or any part thereof, are, is, can, shall or may bo impeached, charged, affected, or incumbered, in title, estate, or otherwise howsoever, or whereby the said Frederick Lumley the Elder and Frederick Lumley the Younger, or either of them, are, is, can, shall or may be prevented or hindered from granting, releasing, and conveying the said hereditaments and premises respectively in manner aforesaid, according to the true intent and meaning of [900] these presents. And, further, that the said Frederick Lumley the Elder and Frederick Lumley the Younger, and each of them, their and each of their heirs, and all and every persons and person having or lawfully or equitably claiming, or who shall or may at any time or times hereafter have or lawfully or equitably claim, any estate, right, title, trust, or interest in, to, or out of the said hereditaments and premises herein-before mentioned and hereby granted and released, covenanted to be surrendered, and assigned, respectively, or any of them, or any part or parts thereof respectively, by, from, or under, or in trust for, them or either of them, or by, from, or under their, either or any of their, right, title, estate, or interest, shall and will from time to time, and at all times hereafter, at the request of the said Bryan Cooke and Philip Egerton Ottey, their heirs, executors, administrators or assigns, but at the costs and charges of the said John Lumley Savile, his heirs, executors, or administrators, make, do, acknowledge, levy, suffer, and execute, or cause and procure to be made, done, acknowledged, levied, suffered, and executed, all and every such further and other...
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