Thomasin v Mackworth
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1823 |
| Date | 01 January 1823 |
| Court | Court of Common Pleas |
English Reports Citation: 124 E.R. 833
COURT OF COMMON PLEAS
thomasin versus mackworth. Ejeotione Firmse. Resolution of the Court delivered by Chief Justice Bridgman: who having put the case upon the record, thus proceeded. I will put the case by parcels; and first speak to something that may stand in our way. 1. Whether when Peter entred he shall hold not only till he have received the two hundred pound a piece, but the other portionary monies, or whether toties quofcies they shall have it as it becomes due. Regp. If Peter might enter, it is not material to this present case, how long he might retain. 2. "What estate Peter and the rest of the feoffees would gain upon their entry; far it is to tbe use of them and their heirs quousque till they have raised the several suras 1 Is it a fee simple or a chattle 1 Rasps The words are, the premises shall be to the use of them and their heirs till tJjey have levied so much ; it seems to be a fee simple; so it was agreed in Boswarths case in this Court. Now; I shall consider two things. 1. The merit and matter of the case as to the trust. 2. Upon this particular record whether it be perfect, i We bavej all *greed in the matter of the case. '- And: as to that the case is this. Humfty ;Mackworth upon a marriage with Mary Venables makes a feoffment by indenture to Peter Yenables and others, and this is to several uses, one part to himself and Mary bis intended wife for a jointure, another part to himself for life, the remainder to his son by her in tail, the reversion of all to himself and his heirs: by this indenture he covenants to pay several hundred the pounds to tbe daughters, he covenants within three months after birth of every child to pay to Peter Venables and tba other feoffees the sum of two hundred pounds; and it is the meaning of the partie and so thereby declared, that if such payment be not made of the said sums, then tbe feoffees and their heirs shall stand seised of all the premises (except the part limited far jointure, and that for the particular estates) until they have levied the said several sums; after this conveyance they have issue Peter born 1659, and Mary born 22 Novemb. 1641, neither of these hundred pounds were [76] paid: then Humfry Mack worth he continues in possession, and in July 1652, upon consideration of a C.P. U.-27 884 THOMASIN V. MACKWORTH CARTER, 77. marriage of Thomas his son with Ann Buckley and of a settlement he makes a lease and release of all his lands, part to the use of Ann Buckley for her jointure, part for 99 years to the use of his son if he live so long; the other part in Bettar to the use of Humfty for life, the remainder to Mary for her jointure instead of her old jointure, after that to the use of Thomas Mackworth if he shall so long live. Then Humfry, Mary and Thomas levy a fine of lands in Sutton-Betar and Betar-Strange, but not in Cronkfield to these uses ; they find Hurafry dies, Thomas enters, neither of the hundred pounds yet being satisfied, the value of the lands in Bettar and Cronkfield are of one hundred and twenty pounds per annum valua, so that during Thomas his life and before this, the two hundred pounds might have been raised out of the profits: so the question is this. Whether Peter Venables and the feoffees not raising the two hundred pounds, when it might have been raised, may enter and hold over against Thomas Mackworth and Ann his wife who come in as purchasers 1 We all hold they may. It hath been urged they cannot. 1. Because the mony might have bean raised by Hutnfry himself; and the law makes no difference of a will or limitation of an use, till such a sum be paid or might be paid ; for if he by negligence will not take it, he must not hinder another. 2. Thomas and his wife come in as purchasers for valuable consideration, though he be a son, yet he comes in as a purchaser; as in Sir Nicholas Armitages case. 3. That Sir Andrew Corbets case, Co. 4 Rep. whereupon the learning of holding over is grounded, was a case of the first impression, and the differences are notable; for in our case Peter Venables and the others are parties; here Humfry Mackworth hath right to the limitation of the old use, which (as was said) did not cease by non-payment without entry or claim. In Sir Andrew Corbets case, the heir was a wrong-doer, the heir as heir did receive the profits, and it was reason he should not gain by his own wrong. Here is a purchaser who comes in by title, and the wife brought a good portion. Yet I conceive the entry of Peter for not payment of the several hundred pounds ia lawful. Let us search into the reason of the law touching holding over against an heir or an assignee where the profits are unjustly withheld. Although these kinds of limitations are created by the Statutes of Uses and Wills and no otherwise, yet the reason is grounded upon the common law. The common law it self makes a difference between an estate for a time certain, and a limitation till such a amnra be levied. 27 H. 6, 10, cited in Coulter's case, Co. 5 Rep. 31. If I grant ten loads of fuel to a man to be taken within my wood at a certain feast from year to year, for his life or years, and the grantee doth...
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