Taylor on the Demise of John Tracy Atkyns v Horde
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1755 |
| Date | 01 January 1755 |
| Court | Court of the King's Bench |
English Reports Citation: 96 E.R. 945
COURTS OF KINGS BENCH
[143] taylor (on the demise of john tracy atkyns) agt. horde. 1755. 1 Burr. 60, S. C. A., tenant in tail in remainder, enters upon the estate of B., tenant for life, under a judgment in ejectment, and enfeoffs, for the purpose of making a tenant to the prsecipe. Upon the grounds on which, in the ancient law, disseisins were considered bo be established ; on the doctrine which prevailed respecting them, both before and after the introduction of the assize of novel disseisin, and by that of disseisin at election, the Court held, that an entry under such a judgment could not possibly be a disseisin, and that a recovery suffered by means of it could not be supported. Also they agreed, from the nature of a common recovery, and the principle which pervades all the cases in which they are held to be valid, that the proper parties, and those who have a right to suffer it, must alone join to render it effectual: that fraud and covin vitiate the transaction, and that no estate founded on a mere artifice shall enure to bar those in remainder; and, for those reasons, that the recovery was void. But a lease for lives, made under a power, on the continuance of which, till a certain time, the right of the lessor of the plaintiff to his remedy by ejectment, depended, from various deficiencies, being deemed invalid, the defendant had judgment in the action of ejectment. [S. C. 2 Sm. L. C. (llth ed.) 575; 1 Burr. 60 (with note).] On a Special Verdict, found on a Trial at Bar, in Ejectment, in B. E. Sir Edward Atkyns, Knt., one of the Barons of the Exchequer. Mary, his 1st wife, = Sir Robert Atkyns, Knt. = Ann Dacres, his 2d died, 2nd March, of the Bath, died, 9th Feb. wife, died, 9th Oct. 1680. 1709. 1712. Sir Robert Atkyns, died, = Louisa Carteret. without issue, 9th Nov. 1711. This case was argued in Trinity term, 1755, by the Hon. Charles Yorke, for the plaintiff, and Mr. Knowler, for the defendant. * 2 Str. 890. 1 Barn. 408, 418. 946 NOTES OF CASES IN K. B. ETC. 1 SSSTf. 1M. Mr. Yorke stated the several facts found by the special verdict, to the following effect, viz. That on the 8th of June, 1669, Sir Robert Atkyns, the Elder, was seised in fee of the premises in question; and being so seised, on the 12th of June, 1669, executed three several indentures, on the marriage of his son, Sir Robert, the Younger, with Louisa Carfceret, first a deed of covenants (which for distinction sake is called the lesser [144] deed,) made between Sir Edward Atkyns, and Sir Robert Atkyna, the Elder, Knight of the Bath, and Dame Mary, his wife, of the one part, and Carteret, and Lowe, of the other part; wherein, after a recital of the marriage, and former jointure of Dame Mary, which she had agreed to renounce, it was covenanted, that a fine sur conusance de droit come ceo, &c., should be levied of the premises now in question, the uses whereof are declared to be to Sir Robert, the Elder, for life, to Dame Mary, his wife, for life, for her jointure, to Sir Robert, the son, and Louisa Carteret, and the heirs of their two bodies; remainder to the right heirs of Sir Robert, the Elder. In which indenture is contained a covenant by Sir Robert Atkyns, the Elder, that if the premises shall not be well and sufficiently conveyed, limited, and assured to the uses aforesaid, on or before the 30th day of November then next, then the said Garteret and Lowe should stand seised thereof to the uses aforesaid, and to no other use, intent, or purpose whatsoever. The great deed (which is the family settlement, and comprehends the premises contained in the last deed, with many other estates) is by indentures of lease and release, 11 and 12 June 1669, the release being of three parts; between Sir Edward Atkyns, Sir Robert Atkyns, the Elder, and Dame Mary, his wife, of the 1st part; Sir George Carteret, Bart., and others, of the 2d part; Sir Robert Atkyns the son, and Louisa Carteret, of the 3d part. In consideration of 6500, the marriage portion of the said Louisa Carteret, and for making a provision for Dame Mary, and the said Louisa, Sir Robert A., the Elder, grants, &c. to Carteret, and Lowe, and their heirs, (among other estates) the premises in question, to hold [145] (as to the premises in question) to the use of Sir Robert, the Elder, for life; to Dame Mary, his wife, for her life; to Sir Robert, the son, and Louisa Carteret, and the heirs of their two bodies ; remainder in fee to Sir Robert, the father. In which deed of release are contained three provisos, viz. 1st, a power for Sir Robert, the Elder, and Dame Mary, when respectively in possession, to lease all, or any part of the premises (except the capital messuage) for one, two, or three lives, in possession, or remainder, so as there were not more than three lives upon any of the said estates at the same time, and reserving the best rent that could be got for the same. 2dly, a power for Sir Robert, the Elder, to make a jointure of all, or any part of the premises, on any future wife. 3dly, a like power for Sir Robert, the grandson, when in possession. Covenant with Carteret, and Lowe, to levy a fine of all the premises, to the uses therein before expressed. All the three deeds were duly executed. In Trinity term, 1669, a fine was levied of all the lands in the great deed. On the 6th July, 1669, Sir Robert, the son, intermarried with Louisa Carteret. On the 2d March, 1680, Dame Mary died. On the 26th of April, 1681, Sir Robert, the Elder, makes a settlement on his intended marriage with [146] Ann Dacres, wherein he recites the power reserved to him by the great deed, of making a jointure for a future wife, and, in pursuance thereof, settles, limits, atid appoints the premises in question to the said Ann Dacres, for her jointure. On the 28th of April, 1681, that marriage was had. That on the 31st of May, 1698, by indenture of lease, between said Sir Robert, the Elder, of the one part, and John, Thomas, and Robert Dacres, (nephews of Dame Ann) of the other part, Sir Robert (reciting his power of leasing) leases all the premises now in question, to the three Dacres', to hold for their lives, and the life of the survivor, paying 360 per annum. N.B. There is no covenant for payment of the rent, nor any clause of re-entry for non-payment. In which lease there is a declaration by Sir Robert Atkyns, the lessor, that the true intent and meaning of that lease is to preserve the remainder limited, by the thereinbefore recited settlement, to the right heirs of the said Sir Robert, or to such 1 KENT. 147. NOTES OP CASES IN K. B. ETC. 947 other person, or persons, as he should appoint, from being barred by recovery, or otherwise. That, on the 8th of June, 1698, John Dacres, one of the lessees, executed a letter of attorney, itnpoweririg Thomas Barker to accept livery of seisin of the said demised premises, for, aud in the names, and on behalf of the three lessees. On the 5th of July, 1698, Sir Robert, in person, delivered seisin to Barker, to the use of the three lessees. [147] That the lessees were never any otherwise in possession, nor ever paid any rent, nor received any of the profits. That Thomas Dacres, the surviving lessee, died, on the 23d of July, 1752, and that the lease was not then in his possession. That Sir Robert Atkyns, the father, duly made, and published his will, on the 27th of May, 1708, reciting the great deed, and that he had settled the estate on his son in special tail, with the remainder in fee to himself, and reciting the lease to the Dacres', he appoints the remainder, benefit, and trust, thereof to John Tracy, second son of his son-in-law Tracy, and his heirs. On the 9th of February, 1709, Sir Robert, the father, died seised, and thereupon Dame Ann entered, as a jointress. By indenture tripartite, of the 18th of May, 1710, between Richard Atkyns, (executor of the surviving trustee, in whom several old terms were vested by the great deed) of the first part, Sir Robert Atkyns, the son, of the second part, and Joseph Walker, of the third part: In consideration of 5s., Richard Atkyns, by Sir Robert's direction, assigns those terms to Joseph Walker, and Sir Robert covenants to indemnify him for so doing. In Trinity term, 9 Ann., an ejectment was brought in C. B. by John Philips, on the several demises of Sir Robert Atkyns, the son, and Joseph Walker, of the premises in question, and there was judgment for the plaintiff, but the entry of it is, that be recover his term aforesaid (in the singular number). [148] That, at this trial, the lesser, and greater deed were read, but the deed of the 18th of May, 1710, was not read. That soon after this judgment, and in the lifetime of Dame Ann, Sir Robert, the son, entered, and was possessed, and being so possessed, on the 1st of January, 1710, John Philips, the plaintiff in ejectment, surrenders both the terms, on which the ejectment was brought, to the said Sir Robert. On the 17th of the same month, Sir Robert, the son, made a feoffment of the premises to James Earl, to make him tenant to a praacipe for suffering a common recovery, for barring all entails, and remainders in the same, and vesting the fee in the said Sir Robert, and appoints Edward Carter, and John Langford, his attorneys, jointly or severally, to deliver seisin; which was accordingly delivered, 20 Jan. 1710, and a recovery duly suffered in Hilary terra, 9 Ann. 9 Nov. 1711, Sir Robert, the son, died, sans issue. In Hil. 10 Ann, an ejectment was brought in B. R., on the several demises of Dame Ann, and Thomas Dacres, the surviving lessee, and the demise laid back within five days after the death of Sir Robert, the Elder, and judgment thereon for the plaintiff. Dame Ann thereupon entered, and died possessed, on the 9th of October, 1712. That upon her death, Robert, the nephew and heir of Sir Robert, the son, entered, and died seised, 16th of March, 1753. ? L49] That Thomas...
To continue reading
Request your trial