Leach and Others against Thompson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | Court of the King's Bench |
English Reports Citation: 89 E.R. 584
IN THE KING'S BENCH.
case 189. leach and others against thompson. Easter Term, 2 Will. & Mary, Koll 221. A. being tenant for life with remainder to his first and other sons, and, in default of such issue, with remainder over to B. in tail, makes a surrender of the estate to B. without his knowledge or consent. Afterwards A. has a son born, and then B. accepts of the surrender, enters upon the estate, and suffers a recovery. This is a good surrender, although it was not accepted until after the birth of the son of A. and destroys the contingent remainder to him in tail; for the consent of the surrenderee is implied, and being a common law conveyance the bare grant without any other act divests the estate out of the surrenderor, and vests it in the surrenderee.-S. C. Garth. 211, 250, 435, S. C. Comb. 438, 468. S. C. Holt, 357, 623, 665. S. C. 3 Mod. 301. S. C. 2 Salk. 427, 565, 618, 675. S. C. 3 Salk. 300. S. C. 2 Vent. 198. Error in the King's Bench, upon a judgment, in the Common Pleas, for the plaintiff in ejectment; there brought by Thomas Thompson against Sir Simon Leach and others defendants, upon the demise of Ch. Leach, of the manor of Bulkworthy. Wherein upon not guilty pleaded, the jury find a special verdict. That Nich. Leach was seised in fee of the manor and lands in the declaration ; and, by his last will in writing, bearing date December 9, 19 Car. 2, demised the premisses to his brother Simon Leach, for life, remainder to the first son of the body of the said Simon, and the heirs males of the body of such first son ; and in like manner to the second and third son, &c. and for want of such issue of the said Simon Leach, the remainder to Sir Simon Leach, and the heirs males of his body ; and for want of such issue, to the right heirs of Nicholas the testator for ever: that the said Nicholas died seised of the premisses, and after his decease the said Simon entered, and became seised for life, with remainder over as aforesaid; arid, being so seised, made a deed bearing date 23 August, 25 Car. 2, sealed and delivered to the use of Sir Simon Leach (but he was not present) which deed the verdict sets forth in hcec verba, and by it he granted and surrendered unto the said Sir Simon Leach, and his heira and assigns, the said manor and lands, and reversion and reversions, remainder and remainders, of the same; to have and to hold the same to the said Sir Simon Leach and his heirs, to the use of him and his heirs: and further, that the said Ch. Leach (the lessor of the plaintiff) the first son of the said Simon Leach, was born the [297] first of November, 25 Car. 2, and not before; and that Simon Leach, from the time of sealing the deed, to the 25th of May, 30 Car. 2, did continue possessed of the premisses; and that then, and not before, Sir Simon Leach accepted and agreed to the said surrender, and entered into the premisses; and that afterwards the said Simon Leach, brother of the said Nicholas, the testotor, died, and the said Charles Leach the son, after his decease, entered and made the lease in the declaration mentioned to the plaintiff; who, by l SHOW. K. B. 298. MICHAELMAS TERM, 3 WILLIAM AND MARY. IN B. R. 585 virtne thereof, entered, and was possessed, and so continued till the defendants, Sir Simon Leach, and others, ejected him. But whether, upon the whole matter, the said Simon Leach did surrender the said manor and premisses to the said Sir Simon Leach, before the said Charles was born, they doubt; and if he did not surrender the said manor and premisses to the said Sir Simon Leach before the birth of Charles, then they find the defendants guilty; and if he did surrender before the birth, then they find the defendants not guilty. Powell Chief Justice, and Rooksby Justice, after four arguments at the Bar for the plaintiff, held, that it was no surrender, till such time as Sir Simon Leach had notice of the deed of surrender, and agreed to it, and so the remainder was vested in Charles the son, and not defeated by the agreement of Sir Simon after the birth : and judgment there was given for the plaintiff contrary to the opinion of Ventris(a). I argued for the plaintiff in the writ of error. The case in short was, Simon Leach, tenant for life, remainder to his first son, remainder in tail to Sir Simon ; the tenant for life, before the birth of that son, by deed, sealed and delivered by him to the use of Sir Simon, (but in his absence, and without his notice) surrenders his estate to Sir Simon; he continues in possession till after the son is born; then Sir Simon agrees to the surrender, and then entered.-The questions are two. First, whether by the sealing of the deed to the use of Sir Simon in his absence, the estate immediately passed; if so, then the contingent remainder to the lessor of the plaintiff in the original action, could never vest, because the particular estate upon which it depended, was gone and determined ; the consequence cannot be denied ; for the law is plain, that if Simon Leach's estate for life was determined before the death of Charles, it is with my client. Then, secondly, another question is, whether the agreement afterwards shall not so relate, [298] as to make the lands pass ab initio: but the first is that which I rely on, (and in truth I doubted the other, for that no relation to a precedent act could work so strong as to divest an estate vested, which was created by conveyance antecedent to the deed to which the relation must be (b) ; and therefore I pretended not to argue that, but only the other first question, viz. that the freehold arid estate of Simon, tenant for life, did immediately by the deed, vest in Sir Simon before he had any notice, or gave any express assent to it; and so it was a surrender before Charles was born) that a surrender passes the estate immediately, even without any express assent, because it is a conveyance at the common law that needs no agreement, Co. Lit. 50. Coke enumerates the conveyances that work without livery, or other ceremony; he puts the cases of lease and release, confirmation, demise and surrender, amongst the rest: whereas, if the explicit agreement of the remainder-man or reversioner were a circumstance requisite to make it effectual, he would have mentioned it, and not have numbered it with those that need no other requisite than a bare deed that reqnire no such assent. Then, if I can make it out to your Lordship, that such common law conveyances need no expresser assents, to pass the estate out of the grantor, and that the reasons of the immediate passing of the estate in such cases, holds iu surrenders, as well as other conveyances, then the inference will be easy. Conveyances at common law do immediately (on the execution of them upon the grantor's part) divest the estate out of him who makes the conveyance, and vests it in him to whom the conveyance is made. In case of conveyances, requiring a further act besides a deed, when all is done on the grantor's part, the estate passes immediately...
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