Prescott against Thomas Boucher

JurisdictionEngland & Wales
Judgment Date01 January 1832
Date01 January 1832
CourtCourt of the King's Bench

English Reports Citation: 110 E.R. 312

IN THE COURT OF KING'S BENCH

Prescott against Thomas Boucher

See Jones v. Jones, 3 B. & Ad. 967. Referred to, Doe v. Angell, 1846, 9 Q. B. 356; Howitt v. Harrington, [1893] 2 Ch. 509.

pkesoott against thomas boucher. 1832. The executor of a person who was seised in fee of land, and demised it for a term of years, reserving a rent, cannot distrain for arrears of rent accrued in the testator's lifetime; for the latter was not a tenant in fee-simple of a rent, within the meaning of the statute 32 Hen. 8, " c. 37, s.I. ~ " : "'", [See Jones v. Jones, 3 B. & Ad. 967. Referred to, Doe v. Angell, 1846, 9 Q. B. 356; Howitt v. Harrington, [1893] 2 Ch. 509.] Replevin. Avowry by the defendant as executor of the last will and testament of William Boucher, deceased, stated that the plaintiff from the 25th of March 1829, until and after: the 25th of March 1830, and from thence until and at the time of the death of the said W. Boucher^ held and enjoyed the premises mentioned in the declaration, &c., as tenant to W. Boucher by virtue of a demise thereof to him the defendant theretofore made at the yearly rent of 701., and because 701. of the rent for the space of one year ending on the 26th of March 1830, was due, and unpaid until and at the time of the death of W. Boucher, and from thence until and at the said time when, &c. continued in arrear from the plaintiff to the defendant, as such executor, he the defendant as such executor avowed, &c. Plea in bar by the plaintiff, that the said W. Boucher at the time of the making of the said demise in the avowry mentioned, and from thence until and at the time of his death, was seised in his demesne as of fee of and in the said premises, in which, fec., and that the said demise [850] under which the plaintiff held and enjoyed the same, &c. at the yearly rent in the avowry mentioned, was a certain demise thereof, heretofore, to wit on :the _25th of March 1825, made by the said W. Boucher, in his lifetime to the plaintiff for a term of years still unexpired, to wit, the term of seven years. General demurrer and joinder. This case was argued in last Easter term (a). Follett in support of the demurrer. The question is, whether, if a person seised in fee of land demises it for years, reserving rent, his executor can, by the statute 32 Hen. 8, c. 37, distrain after his death for arrears of rent incurred in his lifetime. That statute recites, that by the order of the common law the executors of tenants in fee simple, tenants in fee tail, and tenants for terms of lives, of rents services, rent charges, rents seeks, and fee farms, have no remedy to recover such arrearages of the said rents or fee farms as were due unto their testators in their lives, &c., and then enacts, that it shall be lawful to every executor of any such, person unto whom such rent or fee farm as or shall be due and not paid at the time of his death as aforesaid, to distrain for the arrearages of all such rents and fee farms, fee.(&). Now an executor of a person seised in fee simple of land, who demised it for years, is clearly (a) Before Lord Tenterden C.J., Littledale, Parke, and Patteson Js. (6) See it given at length, page 854, post. : 3B.&AD. 851. PRESCOTT V. BOUCHER 313 within the equity of the statute, for such executor had no remedy at common law, and the authorities collected in Chitty's Statutes, title Landlord and Tenant, shew that such an executor may distrain under the statute. A doubt is indeed suggested on the point in Buller's N. P., p. 57, where it is observed, " Lord Coke [851] says, if a man make a lease for life, or a gift in tail, reserving a rent, this is a rent service within the statute; from whence it may be inferred, that he thought that a rent reserved upon a lease for years was not within it, and I apprehend that it is not, for the landlord is not tenant in fee, fee tail, or for life, of such a rent; and it is the executors of such tenants only who are mentioned in the Act." It is assumed there that a tenant in fee, who demises for years, reserving a rent, is not a tenant in fee of the rent, but, if not, what interest has hel Kent is part and parcel of the estate, is incident to and partakes of the nature of the reversion. If tenant in tail leases for twenty-one years, reserving rent to himself, his heirs, and assigns, the rent will go with the reversion to the heir in tail, Gather v. Merrick (Hardr. 89). So, if it be generally reserved to a man, his heirs and assigns, it will go to the heir in borough English, and to the heir on the part of the mother, Hill's case (b). It may be said that, because the term here is for years, the rent issuing out of the land must be a chattel interest. If that were so, the accruing rent would go to the executors, whereas it goes to the heir: therefore the testator's interest must have been the same as it was in the reversion, and of that he was seised in fee. The difficulty has arisen from confounding a reservation of rent by the tenant of the freehold out of which the rent issues, with a rent granted by the owner of the land to a stranger. A tenant in fee of land, who leases for years reserving rent, thereby does no more than keep to himself part of his estate; he may grant the term without re-[852]-serving a rent, but if he grants the term and reserves the...

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6 cases
  • Duppa, Executor of Baskervile, v Mayo
    • United Kingdom
    • Court of the King's Bench
    • 1 January 1845
    ...S. C. [2 Bing. 193, Stamford v. Sinclair. 9 Moore, 376, S. C. The point was expressly decided in the negative in Prescott v. Boucher, 3 B. & Ad. 849 ; and Jones v. Jones, 3 B. & Ad. 967. But now by stat. 3 & 4 W. 4, c. 42, s. 37, " it shall be lawful for the executors or administrators of a......
  • Doe on the Demise of William Angell against Benedict John Angell Angell
    • United Kingdom
    • Court of the Queen's Bench
    • 1 January 1846
    ...one can be said to be tenant of, or to have any estate in, the rent reserved by a lease, as was shewn in the case of Prescott v. Boucher (3 B. & Ad. 849, 859), and was (a) See Wrightsm v. Macaulay, 14 M. & W. 214. 1310 DOE V. ANGELL 9 Q. B. 357. agreed to in the judgment in Grant v. Ellis (......
  • Harrisson v Mason
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    • Court of Chancery (Ireland)
    • 8 February 1849
    ...7 Ir. Eq. Rep. 580. Ivy v. GilbertENR 2 P. Wms. 13. Turnly v. LeeENR Cro. Car. 471. Pool v. Niel Sid. 28, 29. Prescott v. BoucherENR 3 B. & Ad. 849. Ognel's case 4 Co. 49. Cupit v. JacksonENR 13 Price, 721. Roberts v. Hughes Beat. 426. Philips v. PhilipsENR 8 Beav. 193. Graves v. HicksENR 1......
  • The Estate of Arthur E. L. Maunsell
    • Ireland
    • Chancery Division (Ireland)
    • 26 April 1911
    ...years, fixed by section 2 of the Act 3 & 4 Wm. 4, c. 27, was altered to twelve years. (2) 2 Bing. N. C. 679. (3) 9 M. & W. 113. (4) 3 B. & Ad. 849. (5) 2 D. G. M. & G. 459. (6) 9 H. L. C. 360. (1) 10 A. C. 14. (2) [1893] 2 Ch. 497. (3) 74 L. T. (N. S.) 572. (4) 5 Ex. 166. (5) 32 Ir. L. T. R......
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