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Judith Garrard, Widow Demandant, Tuck, Tenant

Nominate Series English Reports Cited authorities 19 Cited in 16 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date25 June 1849
Date25 June 1849
CourtCourt of Common Pleas

English Reports Citation: 137 E.R. 498

IN THE COURT OF COMMON PLEAS

Judith Garrard, Widow Demandant, Tuck
Tenant.

S. C. 18 L. J. C. P. 338. Discussed, Melling v. Leak, 1855, 16 C. B. 668. Approved, Drummond v. Sant, 1871, L. R. 6 Q. B. 767.

judith garrard, Widow, Demandant, tuck, Tenant. June 25, 1849. [S. C. 18 L. J. C. P. 338. Discussed, Helling v. Leak, 1855, 16 C. B. 668. Approved, Drummond v. Saait, 1871, L. E. 6 Q. B. 767.] In a writ and count in dower, the exact number of acres of land in respect of which dower is demanded is not material: in order, therefore, to sustain a plea alleging that the tenements mentioned in the count were subject to an outstanding term, it is sufficient for the tenant to shew that all the lands held by him in the parishes named in the count are subject to the term.-Where an inclosure act provides that every proprietor shall stand and be seised of the lands to be allotted to him, to such and the same uses, and for such and the same estates, as the lands in respect of which such allotments shall be made, would have been subject to in case the act had not been made,-the allotments made under it are held subject to an outstanding term to which the original lands were subject.-Perfect identity of description and quantity is not, under such circumstances, necessary.-The surrender of a term assigned to attend the inheritance, is not to be presumed unless there has been a dealing with the estate in a way in which reasonable men would not have dealt with it unless the term had been put an end to.-The object of the statute 3 & 4 W. 4, c. 27, was to settle the rights of persons adversely litigating with each other; not to deal with cases of trustee and cestui que trust, where there is but one single interest, viz. that of the person beneficially entitled.-A cestui que trust who enters into possession of land, becomes, at law, tenant at will to the trustee: where, therefore, the equitable owner of an estate, a term in which has been assigned to attend the inheritance, is in possession, the right of entry under the 2nd section of the 3 & 4 W. 4, c. 27, accrues only upon the determination of the tenancy at will resulting from such possession.-The 3rd section of the 3 & 4 W. 4, c. 27, does not apply to the case of a cestui que trust holding possession of land under the trustee. -The court below refused to set aside a writ of error issuing out of the petty-bag office pursuant to the 12 & 13 Viet. c. 109, on the ground that it had been issued against good faith, and in contravention of an agreement entered into between the parties,-thinking that the court in which the writ was returnable alone had power to deal with it. [Sed vide post, p. 258.]-The .court of Exchequer Chamber declined to set aside a writ of error issuing out of the petty-bag office pursuant to the 12 & 13 Viet. c. 109, on the ground that it had been issued against good faith, and in contravention of an agreement entered into between the parties,-holding 8 C. B. 232. GARRARD V. TUCK. 499 that the power so to deal with the writ was in the court below, or in a judge at chambers under s. 37; the court of error not being a " superior court of common law," within that statute.-The Exchequer Chamber, irrespectively of the statute 12 & 13 Viet. c. 109, has no jurisdiction to quash a writ of error,-except for a defect apparent on the face of it, or on the ground that the record is inconsistent with it. This was an action by writ of dower unde nihil habet. The count stated that Judith Garrard, who was the wife of James Roberts Garrard, deceased, by A. S., her attorney, demanded against Charles Edward Tuck the third part of one messuage, one barn, one stable, one garden, one orchard, sixty acres of land, sixty acres [232] of meadow, sixty acres of pasture, sixty acres of arable land, sixty acres of woodland, and sixty acres of land covered with water, with the appurtenances, in the parish of Surlingham, in the county of Norfolk, and the third part of two acres of land, two acres of meadow, two acres of pasture, two acres of arable land, and two acres of woodland, with the appurtenances, in the parish of Rockland, in the county aforesaid, and the third part of two acres of land, two acres of meadow, two acres of pasture, two acres of arable land, and two acres of woodland, with the appurtenances, in the parish of Bramerton, in the county aforesaid, as the dower of the said Judith Garrard, of the indowment of the said James Roberts G-arrard, deceased, theretofore her husband, whereof she had nothing, &c. The tenant pleaded,-first, dotem non, because he said that the said James Roberts Garrard, on the 18th of March, 1839,-being the time of suing forth the original writ of the said Judith G-arrard in this action in this behalf, was not dead; concluding to the country (a). Secondly, that the said Judith Garrard ought not to [233] have her dower of the tenements aforesaid, with the appurtenances, of the indowment of the said James Roberts G-arrard, theretofore her husband, otherwise than of the reversion thereinafter mentioned, and of the rent incident thereto thereafter mentioned, because he said that the said tenements, with the appurtenances, were and are subject to a term of one thousand years, and that the said Judith Garrard was only entitled to be endowed of the reversion expectant on the determination of the said term, and of a peppercorn rent incident to the said reversion; and that this the tenant was ready to verify, wherefore he prayed judgment if the demandant ought to be indowed of the said tenements, with the appurtenances, as of the indowment of the said James Roberts Garrard, otherwise than of the said reversion and of the said rent incident thereto, &c. The demandant joined issue on the first plea, and replied to the second, that she, by reason of anything by the tenant in that plea alleged, ought not to be barred from having her dower in the said tenements, with the appurtenances, of the indowment of the said James Roberts Garrard, formerly her husband, because she said that the said tenements, with the appurtenances, were not, either before or at the time of pleading the said last plea, subject to the said term of one thousand years; without this that the said tenements, with the appurtenances, were and are subject to the said term of one thousand years, and that she the said Judith G-arrard is only entitled to be indowed to the reversion expectant on the determination of the said term and of the said peppercorn rent incident to the said reversion, in manner and form as in that plea alleged,-concluding to the country. The cause was tried before Pollock, C. B., at the spring assizes at Norwich, in 1847. The facts are so fully stated in the judgment, that it is unnecessary to [234] repeat them here. At the close of the tenant's case, it was insisted on the part of the demandant,-first, that the term of one thousand years mentioned in the second plea, must be presumed to have been surrendered, on the authority of Doe d. Putlaiid v. Hilder (2 B. & Aid. 782),-secondly, that the plea should have stated that the tenements were subject to the residue of a term of one thousand years,-thirdly, that (a) This conclusion appears to be bad in substance, as referring to trial by jury, a fact which ought to be tried by the court per testes. Com. Dig. Pleader (2 Y. 9). If the plea had been properly concluded, it could not well have been joined with the second plea,--in bar of execution,-any issue arising out of which must have been triedjby the country. 500 GARRARD V. TUCK 8C.B.235. the rights of entry and of action, in respect of that term, were taken away by the statute 3 & 4 W. 4, c. 27, ss. 2, 7,-fourthly, that, by the 8 & 9 Viet. c. 112, s. 1, the assignment of satisfied terms was unnecessary,-fifthly, that the term which the tenant had proved, was not a term in the land described in the count,-sixthly, that, assuming that the lands allotted under two acts for the inclosure of lands in the parishes of Surlingham and Rockland, respectively, 48 Gr. 3, and 49 G-. 3 (which, with the awards made under them, had been put in by the tenant), had belonged to James Eoberts G-arrard, it was not shewn that the lands in respect of which the allotments were made, were the lands now in question, and therefore it did not follow that the term would subsist in the new allotments. A verdict was found for the demandant, with leave reserved to the tenant to move that the verdict might be entered for him on the second issue, if the court should be of opinion that the second plea was made out,-and leave to the demandant to move to enter up judgment non obstante veredicto, if the tenant's motion to enter the verdict on the second issue should be successful. Byles, Serjt., accordingly, in Easter term, 1847, on the part of the tenant, obtained a rule to shew cause [235] why the verdict found for the demandant on the second issue should not be set aside, and instead thereof a verdict be entered for the defendant ; or for a new trial, upon affidavits. As to the presumption of a surrender of the term, he referred to the cases collected in Sugden's Vendors and Purchasers (a), and to Doe d. Blacknell v. Plowman (2 B. & Ad. 573), as virtually overruling Doe d. Putland v. Eilder. As to the objection that the term proved was not a term in the lands.in the count, he submitted that the defect, if any, arose from the defective way in which the demandant had herself described the lands; and that if the description was too general, the judgment ought to be arrested,-citing Com. Dig. Pleader (2 Y. 2). And, as to the last objection urged at the trial, he referred to the various provisions of the local inclosure acts, and to the 14th section of the general inclosure act, 41 G. 3, c. 109, as shewing that the new allotments followed the title of the lands in respect of which they were made. O'Malley and Willes, in Trinity term, 1848, shewed cause. To entitle him to a...

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