Jope v Morshead
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1843 |
| Date | 28 January 1843 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 807
ROLLS COURT
S. C. 12 L. J. Ch. 190. See Bolton v. Ward, 1845, 4 Hare, 533.
[213] jope v. morshead. Jan. 27, 28, 1843. [S. C. 12 L. J. Ch. 190. See Boltm v. Wu.nl, 1845, 4 Hare, 533.] Independently of the 4 & 5 Viet. c. 35, s. 85, this Court has no jurisdiction to direct the partition of copyholds, nor of customary freeholds. On u bill for a partition, when there is a small failure in proof of title, or when the shares of the parties are alone doubtful, the Court will grant an inquiry : but where there is a material omission in the proof of the Plaintiffs title, the bill will be dismissed with costs. This course was pursued, though the Plaintiff had recovered in ejectment a portion of the estate from the Defendant, it not appearing what were the circumstances of that proceeding, or whether the Plaintiff's title, as alleged, was herein proved. The object of this suit was to obtain a partition of some property in Cornwall of the tenure of customary freehold. The Plaintiff alleged himself to be entitled to thirteen-ninetieths of the property, as owner of three unexpired terms of 500 years, of 400 years, and of ninety-nine years determinsble on lives. The first term was created in 1760 ; the second waa a mortgage term for securing 20,000, derived out of the former, and was created in 1773, and the third term was created in 1798. The Plaintiff, by his bill, traced at length the devolution of these terms until they became vested in himself; and he alleged that the term of 400 years had long since, by lapse of time and otherwise, become irredeemable, and that the Plaintiff had become legally entitled to all the beneficial interest therein. The Plaintiff, in 1837, recovered thirteen-ninetieths from the Defendant Grigg by ejectment, but the circumstances of that proceeding did not appear, or in what way the title of the Plaintiff was, upon that occasion, made out. The Plaintiff, at the hearing, failed in establishing the devolution of the terms, and in shewing that they were legally vested in him. The bill was filed in 1840, and therefore the recent statute did not apply.(1) [214] Mr. Turner and Mr. Collins, for the Plaintiff. The statute of 4 & 5 Viet. c. 35, s. 85 (which passed the 21st June 1841), though inapplicable to the present suit, shews, not that the Court has no jurisdiction to direct a partition of copyholds, but merely that " doubis were entertained whether by the practice of such Courts, the same can now be obtained." There are however authorities in support of the jurisdiction, as Dadson v. Dodson...
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