Symonds against Cudmore
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1796 |
| Date | 01 January 1796 |
| Court | Court of the King's Bench |
English Reports Citation: 87 E.R. 226
KING AND QUEEN'S BENCH.
Referred to, Pemberton v. Barnes [1899], 1 Ch 548.
MODERN REPORTS; or, SELECT CASES ADJUDGED in the COURTS of KING'S BENCH, CHANCERY, COMMON PLEAS, and EXCHEQUER. Volume the Fourth. Containing, a Collection of several SPECIAL CASES argued and adjudged in the Courts of King and Queen's Bench, from the Second to the Sixth Year of WILLIAM and MARY, and JUDGMENTS thereupon ; with several of the PLEADINGS at large ; being carefully examined by the Records : and also the Number of the Rolls of most of the other Cases. The Fifth Edition, corrected. By THOMAS LEACH, Esq. of the Middle Temple, Barrister at Law. 1793. hilary term. The Second of William and Mary. In the King and Queen's Bench. Sir John Holt, Knt, Chief Justice. Sir William Dolben, Knt., Sir William Gregory, Knt., Sir Giles Eyres, Knt., Justices. Sir George Treby, Knt., Attorney General. Sir John Somers, Ktit., Solicitor General, [1] case 1. symonds against cudmore. [Referred to, Pemberton v. Barnes [1899], 1 Ch. 548.] A fine levied by a tenant in tail, who has the immediate reversion in fee in himself, will merge the estate tail and bring the reversion in fee into immediate possession, and thereby render it liable to the incumbrances of all those who were seised of it. -Thus if A. being tenant in tail with reversion in fee, make a lease for years, and on his death, before the term expires, the issue in tail levy a fine, this Jease cannot be avoided by him or by the conusee of the fine; for although, as the lease was derived out of the estate tail and also out of the reversion, the issue in tail might have avoided it, yet having destroyed the intail by the fine his power is gone ; and the conusee cannot avoid it because he is a stranger, who never had any privity in the estate in tail.-S. C. Salk. 338. S. C. 1 Show. 370. S. C. Skin. 284, 317, 328. S. C. 3 Salk. 335. S. C. Garth. 257. S. C. 12 Mod. 32. S. C. Holt, 666. S. C. 1 Freem. 503. An ejectment was brought for one messuage, one curtilage, and a garden, in the parish of St. Paul, in the City of Exeter, on the demise of Nicholas Martin, &c. 226 4MOD.1 HILARY TERM, 2 WILLIAM AND MARY. IN B. R. 227 Upon not guilty pleaded, the jury found a special verdict; that Sir Nicholas Martin, being tenant for life, with remainder in tail to William his eldest son, and having a power to make leases for twenty-one years, or three lives, reserving the ancient rent, did make a lease to Clement Westcorne for ninety-nine years, if Richard and Nicholas Westcome should so long live, reserving the ancient rent, which was eight pounds ten shillings per annum. Sir Nicholas Martin died, leaving issue William Martin his eldest son and heir, who, being then seised of the remainder in tail, and also of the reversion in fee expectant upon the determination of that estate, did by indenture release the said rent, and before the determination of the aforesaid lease made by his father, did demise the premises to Elizabeth Westcome for ninety-nine years, if George and William Westcome should so long live, to commence after the determination of the first lease. William Martin died, leaving issue Nicholas Martin his eldest son and heir, who, being the issue in tail, levied a fine to the use of himself, and his heirs. Afterwards the first lease determined ; then Nicholas Martin entered, and made a lease to the plaintiff Symonds; upon whom Cudmore the defendant, being the assignee of the second lease, entered. The question was, whether his entry was lawful? [2] Those who argued for the plaintiff would have the estate tail in being; and that though it might be barred by the fine, yet it was not extinct; therefore they would not have the lease void, but voidable by the issue in tail, and that the cognizee of the fine might avoid it, as the issue in tail might have done if the fine had not been levied. They argued, that at the common law all estates of inheritance were in fee; and before the Statute de Donis, the donee had a fee-simple conditional, and might have barred his issue; that by the Statute of 13 Edw. 1, c. 1, de Donis, &c. called the Statute of Westminster the Second, the common law was altered ; which statute was made for the benefit of the issue, by restraining the tenant in tail, either before or after issue born, to bar or change the estate. It is true, if he had made a feoffment with livery, it would work a discontinuance of the tail, because he had an estate of inheritance, and in such case the issue in tail must have brought his real action ; but now, by subsequent statutes, power is given to tenant in tail to bar his issue by fine (a). If this lease should not be voidable, then it would be good as long as any of the issue in tail are living, but that cannot be, because it is not for the benefit of such issue that it should be so; and for this reason the books are very plain, that alienations made for their benefit, and not to their prejudice, are binding (b), Admitting it therefore to be voidable by the issue in tail, then the cognizee in the fine must have the same power to avoid it as the issue in tail had before the fine levied: and to prove this, they relied on my Lord Coke's comment on Littleton (c), that if tenant in tail make a lease for forty years, reserving rent, to commence ten yeara after, and die, and then the issue in tail enters and makes a feoffment to B. and the ten years expire, and the lessee enters, and B. accepts the rent, and waves the possession of the land; this makes the executory lease good, because he shall have the same election as the issue in tail had, either to make it so or avoid it. It may be objected in this case, that the lease made by the tenant in tail never commenced till after the fine levied by the issue; and therefore it could not arise out of the estate tail, because it was extinguished by the fine, and that if it arise out of any thing, it must be out of the reversion in fee; [3] which opinion may receive this answer; that the estate tail was not extinguished by this fine, because the law will suppose an existence of it in the cognizee to prevent a wrong; and therefore where such an estate is intermixed with a fee, it shall have a being against this wrongful and tortious lease. In Errington's case (a) there seems to be an opinion against this; the case was thus: Roger Errington and Katherine his wife were tenants in special tail, reversion in fee to Roger, who died; the issue in tail, who had also the reversion in fee, in the lifetime of Katherine his mother made a lease for forty years to Robert Errington, to commence after the death of Katherine his mother, and died ; the reversion descended (a) By 4 Hen. 7, c. 24, and 32 Hen. 8, c. 34. (b) Year Books 44 Edw. 3, pi. 21 ; 46 Edw. 3, pi. 4; and Co. Lit. 23 b. (c) Co. Lit. 46 b. () Errington v. Errington, 2 Bulst. 42. 228 HILARY TERM, 2 WILLIAM AND MARY. IN B. R. 4 MOD. 4. to Jane Errington, who in the life-time of Katharine levied a fine sur conusance de droit come eeo to I. S.; the mother died : the cognizee of the fine shall not avoid this lease, because he who made it was inheritable to the estate tail, and likewise to the reversion in fee, and so it issues out of both; for being actually seised of the fee simple he charged the reversion, and the lease is good against him by way of estafipel, and by way of Merest also out of the reversion, and the estate tail is not only barred, but extinct by the fine. But there was no judgment given in that case ; my Lord Coke was there of a contrary opinion to Flemming, Justice : and in Capell's case (b), which was adjudged in the twenty-third year of the Queen, and published in his first book of Reports, there is a contrary resolution ; it was thus: the remainder man in tail granted a rent-charge, and the tenant in tail suffered a common recovery, and, having aliened the estate, died without issue; the grantee distreined for rent, and the alienee replevied; and it was held, that the title was in him, because the common recovery suffered by the tenant in tail did bind all the remainders, and all leases made by them. Those who argued for the defendant said, that the lease for years was not to be avoided by the issue in tail, because it arises even out of the estate tail, and likewise out of the reversion ; and therefore it must be a good lease, though the tail might be barred by the fine (c); for it was made by William Martin when he was tenant in tail, and for that reason it is not void against his issue; but, the issue having levied a fine, the estate tail is then extinct, so that the cognizee cannot come in privity of it, he being a mere stranger, and therefore shall not avoid this lease. [4] Where tenant for life ((/) and remainder man in tail joined in a lease to A. for life, remainder to B. for life, rendering rent, and the tenant for life died, and the remainder man accepted the rent of the first lessee for life and died, and the issue in tail entered, and accepted the rent likewise, and made a feotfment and levied a fine to S. who bought the land, and then the first lessee for life died ; it was held that the purchaser should never avoid this lease in remainder, because it arises out of both the estates of the tenant for life and him in remainder in tail, and therefore the acceptance of the rent by the issue in tail made good both the estate for life to A. and also the remainder to B. for life. There is a case which governs this at Bar; it was adjudged in the Court of Common Pleas in Trinity term, 3 Car. 1, upon a demurrer in replevin (a), and it was shortly thus: the father was tenant for life, remainder in tail to his son, remainder in tail to the father, remainder in tail general to the -son, remainder in fee to the father; they both granted a rent charge by deed to the defendant in fee; then they joined in levying of a fine, and declared the uses to the father in fee, who made a feoffment to...
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