Moseley v Motteux
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1842 |
| Date | 21 November 1842 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 582
EXCH. OF PLEAS.
S. C. 12 L. J. Ex. 136.
[533] momej.ey v. motteux. Exch. of Pleas. Nov. '21, 1842.-A deed to lead the uses of a recovery by mistake treated an advowson as being in gross, when in fact it waa appendant to a manor; and recited, that A., being seised of the manor and advowsori, devised the manor and other estates, not including the advowson, to B., for life, with remainders for life and in tail, and devised the residue of his real estate to B. and C. in fee, as tenants in common ; and that B., being seised in fee of a moiety of the advowson so devised to him as aforesaid, made his will, and devised his real estate to hi.s widow for life, with remainder to M. for life, with remainder to his issue in tail: and the deed then proceeded to convey the manor with its appurtenances, and also (inter alia) the moiety, formerly of the said B., of and in the advowson, to a trustee for the purpose of making a tenant to the pracipe to suffer a recovery, to enure to the use of M. for life, with remainder to his eldest son in fee. In fact, the will of A. contained a sufficient devise of the manor and the appendant advowson to B. for life, with remainders for life and in tail, and under this devise M. was in fact, at the date of the deed, tenant for life of the manor and advowson, with remainder to his eldest son in tail: and M., and his eldest son, were parties to the deed :-Held, that, although the premises in the recovery deed were in themselves large enough to have passed the whole advowson as appendant to the manor, yet that, by reason of the intention of the parties apparent on the face of the deed (although arising out of a mistake as to their title), the estate tail was not barred iu one moiety of the advowson. [S. C. 12 L. J. Ex. 136.] This was an action of assumpsit, brought by the plaintiff as the veudor against the defendant as the purchaser of the advowson of Wyverstoue, in the county of Suffolk, for the non-completion by the defendant of his purchase. The following case was stated by the parties for the opinion of this Court:- John Moseley, being seised in fee simple of the manor of Wyverstone, and also of 14 M. fcW. 534. MOSELEY V. MOTTBCX 583 the advowson o the rectory of Wyverstone, which was appendant to the manor, and not an advowson in gross, by his will dated the 8th of August, 1773, duly executed and -attested, after devising certain estates to his nephew William Moseley for life, with remainder to his eldest son (who was then living) for life, with remainder to the first arid other sons of the body of such eldest son in tail male, devised to his nephew Richard Moseley for life his manor or lordship of Wy verstone, and the several farms and lands thereto belonging, (subject to an annuity created by his will), with their and every of their rights and appurtenances, and also another estate in Berkshire, with remainder to the first and other sons of his body in tail male, with remainder to the said William Moseley for life, with remainder to the eldest son of the said William Moseley for life, with remainder to trustees to preserve contingent remainders, with remainder to the first and other sons of the body of such eldest son successively in tail male, with remainder to the second and every [534] other son of the body the said William Moseley successively in tail male, with remainder to the testator's right heirs. The testator also devised all the residue of his real estates to his said two nephews and their heirs, as tenants in common. The testator died in 1775, leaving his two nephews him surviving, and also John Moseley the plaintiff, the eldest son of William Moseley, being the person in the will described as such. [n 1785 William Moseley, died intestate, leaving the plaintiff his heir-at-law. Richard Moseley, by his will dated the 20th of November, 1800, devised all his estates to Sarah his wife for life, with remainder to trustees to preserve contingent remainders, with remainder to the first and other sons of the body of the plaiutitf in tail general. Richard Moseley died in 180:i, without issue, leaving his widow him surviving. The plaintiff had issue John Galway Moseley, his eldest son, who attained his age of twenty-one years on the 14th of February, 1820. The advowson continuing appendant to the manor, by indentures of lease and release, dated the llth and 12th of February, 1823, the release being made between the plaintiff' of the first part, the said John Galway Moseley of the second part, the said Sarah Moseley of the third part, T. Dixon of the fourth part, and T. Holmes of the fifth part: after reciting that John Moseley the testator, being seised of certain estates and of the manor of Wyverstone in Suffolk, and also of the advowson of Wyverstone, and otter hereditaments, devised certain estates to the said William Moseley as before mentioned, and the said manor and other hereditaments situate in Suffolk and in Berkshire, changed with the payment of certain annuities therein mentioned (and not including the said advowsou), to the said Richard Moseley for life, with remainder to his first and other sons in tail male, with remainder to the said [535] William Moseley for life, with remainder to his first and other sons in tail male ; and that the said testator devised the residue of his real estate to his said two nephews and their heirs, as tenants in common : and after reciting that the said Richard Moseley, being seised in fee simple of (amongst other things) the moiety of the said advowson so devised to him as aforesaid, made his will, and thereby, after making certain devises which did not include the said moiety of the said advowson, devised the...
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