John Parkhurst, and Others, - Plaintiffs; Joseph Smith, (on dem. of J. Dormer, esq.), - Defendant (in Error)
| Jurisdiction | England & Wales |
| Judgment Date | 23 February 1740 |
| Date | 23 February 1740 |
| Court | House of Lords |
English Reports Citation: 2 E.R. 1127
House of Lords
REMAINDER. case 1.-john parkhurst, and others,-Plaintiffs; joseph smith, (on dem. of J. dormer, esq.),-Defendant (in Error) [23d February 1740]. An estate was limited (after several precedent estates for life and in tail) to the use of A. for 99 years, if he should so long live, and from and after the death of A. or other sooner determination of the estate limited to him for 99 years, to the use of trustees and their heirs during the life of A. in trust to' preserve contingent estates, etc. and for that purpose to make entries and bring actions, etc. but to permit the said A. to receive the rents and, profits, etc. during the term of his life; and after the end or other sooner determination of the said term, to the use of the first and other sons of A. successively in tail male, with divers remainders over. By the expiration of all the preceding estates, A. came into possession of the lands limited to him for 99 years; and having a son, he, together with that son, when he came of age, levied a fine of the lands to make a tenant to the precipe, and suffered a recovery of the same, in which the son was vouched. The son died without issue, and afterwards A. died, without leaving any other son. The next surviving remainder-man made his actual entry within five years: and upon a question whether the fine and' recovery had barred his remainder, it was held that it had not; there being no freehold in the tenant against whom the recovery was had ; the freehold being in the trustees, during the life of A. judgement of the Court of K. B. affirmed. This point depended entirely on the question whether the freehold was in the trustees during the- life of A. or not? For if it was, the recovery was not well suffered for want of a good tenant to- the precipe, and consequently did not bar the remainder; but if the trustees had not the freehold, then it was in the son, and of course he was capable of making a good tenant to the precipe, and the recovery in that case was well suffered: for the court of K. B. held that the fine by lessee for years (A.), or the reversioner (the son), 1127 VI BROWN. PAEKHURST V. SMITH d. DORMER [1740] could only operate by way of estoppel, to bar the parties claiming under such lessee or reversioner; but did not create a freehold as a feoffment would have done. It was insisted that the freehold was not in the trustees ; because, 1. The remainder to the trustees was void in its creation, being to- commence after A.'s death, and then to hold during his life, which was repugnant, and could never take effect at all. 2. If not void in its creation, it was a contingent remainder, because it was uncertain whether it would ever take effect, as the term of 99 years might not determine in A.'s life-time. 3. [352] That if it was neither void nor contingent, yet it did not amount to a legal estate, but was only a right of entry. But the Court resolved that the remainder was not void in its creation, its commencement not being restrained to the death of A. but limited from the death of A. or other sooner determination of the estate for 99 years; and therefore might take effect by surrender, forfeiture, or effluxion of time in A.'s life-time. 2. That it was not a contingent remainder, being limited to persons vn, esse, without any condition precedent to be performed: it did not depend on the death of A. but on such other events (viz. forfeiture, surrender, etc.) as might determine the particular estate from the nature of the estate itself. 3. That it was not a mere right of entry, but a...
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