Simonds v Cudmore
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 91 E.R. 857
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Hill 1 Will 3, Rot. 743
See S. C. 1 Salk. 338; 91 E. R. 296 (with note).
tail. Of Estates-tail, and of Leases, &(,. made, by Tenants in Tail. 1. simonds versus cudmore. [Hill. 1 Will. 3, Eot. 743.] [See S. C. 1 Salk. 338; 91 E. R. 296 (with note).] Where a lease made by the tenant in tail shall bind the issue. This case is reported in * 1 Salk., but more clearly here, (viz.) A. was tenant for ten years in possession; the remainder was to B. in tail, who had likewise the reversion in fee expectant, upon the determination of the lease for ten years, and being seised of both these estates, he made a lease for years to commence at a day to come; but before that day came he died; then the issue iu tail levied a fine, and declared the uses thereof to himself and his heirs ; the lease for ten years expired, and then the future lessee entered, and was in possession by virtue of [336] the lease made to him by the tenant in tail, upon whom the issue in tail entered, and the question was, whether he was bound by this future lease ? In arguing this case it was held, that where tenant in tail makes a lease to commence in prcesenti, it is violable by his death; but if ho makes it to commence in futuro (as in this case he had done), (viz.) if it be to commence after his death, it is void, because it is not derived out of his own estate and possession, but out of the estate of the issue in tail, which is paramount per formam doni; so if tenant in tail makes a lease to commence at a day to come, and dies before the day come, the lease is void, and the lessee is a trespasser if he enter, because the lessee had no estate or interest in the land, but only an interesse termini till actual entry, and the issue in tail had a title paramount and precedent to that of the lessee, which cannot be avoided. But per Curiam, In the principal...
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