Smith v Paynton
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1823 |
| Date | 01 January 1823 |
| Court | Court of Common Pleas |
English Reports Citation: 124 E.R. 830
COURT OF COMMON PLEAS
S. C. Carter, 86.
[71] terming trinitatis, 18 car. 2, com. bancj. smith versus paynton. [S. C. Carter, 86.] Trespass and ejectment. Special verdict. The jury find, that the lands in question are called Hay and Trent-Betton, and they are customary lands in the parish of Newcastle upon Tine, and deviseable in fee or for lesser estate, according to the custom of the mannor, and 31 Octob. 12 Jac. John Smith grandfather to the lessor of the plaintiff was seised in fee thereof according to the custom of the mannor, and upon consideration of a marriage between him and Dorothy S. covenants were made first for the settlement of his freehold lands, and after of his copyhold lands; his customary lands he covenants to settle to the use of himself for life, aud after to the use of Thomas his son, and his wife, and after to th& use of Thomas his first begotten son of that wife, and so to the second and third OABTHt,n, SMITH V. PAYNTON 831 son, the remainder over, they were marryed : within the manner they find this custom, that every cuatumary tenant having a fee simple according to the custom of the manner might devise their lands in fee simple at pleasure. They find John Smith now being seised with these covenants upon him made in the 12th of Jac. in the 10th of Daeemb. 1619, did by his will devise these lands to his son Thomas after his decease, and that it should go from son to son with remainders as is mentioned in the indenture of 12 Jac. the will refers to the deed of settlement: 1 May 1620, they find the devisor diee, leaving issue that son Thomas that was married. The jury find within the manner also such a custom as this, if any custumary tenant did devise by his last will any of these lands, and the will was not presented within a year and a day next after the death of the party that made the will, the devise is void. They find that this last will was not presented per prsefaturn Thomam Smith the son of John at any court held within the mannor within a year and a day. They find Thomas had issue by his wife Thomas the lessor; and the father having issue his son Thomas (who was to have it in tail) did surrender this to Hunt in fee, who was seised prout lex postulat. Hunt, 15 Gae. 1, did surrender it in fee to one Bagnel under whom the defendant claims. And then they find Thomas the father son of old John died, and the lessor Tkomai his sou within three years after his death had the will presented in court. They find Thomas Smith son of Thomas the [72] lessor 14 Car. 2, was admitted by vartue of Smiths will, and the defendant en trad upon his lessee; and so the action brought. Newdigate Serjeant pro quereute. A devise to one for life, remainder to another (who is lessor of the plaintiff) deviior dies, and the will is not presented within the year, but three years after. Question is, whether the devise as to the remainder be good, because not presented 1 I conceive the lessor of the plaintiff hath a good title, though the will is not presented. A devise to one for life the remainder in tail, whether the neglect of devisee for life shall prejudice him in remainder] I think not. 1. Reason. He had no title accrewed to him, till after the death of particular tenant for life, it belongs to tenant for life, not to him, and the custom must have a reasonable construction. 2. In meh a custom as this, it must either be a void custom or the law must dispetice with necessary disabilities ; as suppose the case of an infant, or a man beyond the seas. 1 Leon. p. 100, pi. 128, Rumney & Eves case. Lessor in that case at the time of the death of hia ancestor was but two years of age; and that after his full age no oourt had been holden for a long time, and that at the first court which was holden be prayed to be admitted, but was refused ; and held a good excuse of his negligence. It was further holden in that case, if a copyholder dieth his heir within age, he is not bound to come at any court during bis nonage to pray admittance, or to tender his Çne. And in onr case here is an infant found by special verdict. i 3. I think that during the life of his father he shall be excused ; the admittance of tenant for life is a good admittance of the reversioner. It is Dot found in the whole record, that he in remainder had any notice of the will, till the very time he caused it to be presented in court. It is not found the father had any notice. Vid. Co. 8 Rep. Francis's case. And then a custom that tends to avoid an estate...
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