Took v Glascock
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 298
COURT OF KING'S BENCH
[250] 38. took versus glascock. Hil. 19 & 20 Car. II. Eegis, in Comuni Banco, Rol. 1512. Same precedent. 2 Mod. Ent. 193. Essex, to wit.-John Glascock, late of the parish of Southwald in the county aforesaid, miller, was summoned to answer to Margaret Took widow, of a plea that he render to her five pounds which he owes to, and unjustly detains from, her, &c. And whereupon the said Margaret by John Sharp her attorney, says, that whereas one Crafford Gibbens gent, being seised in his demesne as of fee, of and in the reversion of a certain messuage and four acres of land, and a wind-mill with the appurtenances, immediately expectant after the death of George Gibbens gent, his father, who was seised of the tenements aforesaid as of freehold, as tenant thereof by the law of England ; and he the said Crafford being so seised of the reversion of the said tenements with the appurtenances, the said Crafford afterwards, to wit, on the 6th day of February in the 20th year of the reign of His late Majesty Charles the First, King of England, at Southwald aforesaid, in the county aforesaid, by his certain indenture made between the same Crafford, by the name of Crafford i wms. sauwd. am. PASCH. 21 CAR. II. REGIS 299 Gibbens of Grainstead in the county of Essex, gent, of the one part, and one John Letton, by the name of John Letton of Southwald, in the county aforesaid, miller, of the other part, (which other part, sealed with the seal of the said John Letton, the same Margaret brings here into Court, the date whereof is the same day and year aforesaid,) demised, granted, and to farm let to the said John Letton, the tenements aforesaid with the appurtenances, by the name of one messuage or tenement with a garden and backside, and two parcels or closes of land to the same adjoining, containing by estimation four acres, be the same more or less, arid also one wind-rail! with the appurtenances, commonly called by the name of Bentley-Mill, next adjoining to the said messuage or tenement; which said messuage and premises were situate, lying, and being in Southwald aforesaid, and late were in the tenure or occupation of Robert Holloway, and, before that time, of Robert Holloway the elder, or his assigns; to have and to occupy the aforesaid tenements with the appurtenances, to the said John Letton, his executors, administrators, and assigns, from and immediately [261] after the death and decease of George Gibbens gent, father of the said Grafford, unto the full end and term of twenty-one years then next following, and fully to be complete and ended ; yielding and paying therefore yearly during the said term to the said Crafford, his heirs and assigns, ten pounds to be paid at the two most usual feasts, or times of payment in the year, to wit, at the Feast of the Annunciation of the Blessed Virgin Mary and St. Michael the Archangel, by equal and even portions: by virtue of which demise the said John Letton was possessed of the interest(1) of the said term expectant after the death of the said George; and the said John Letton being so possessed of the interest of the said term, and the said Crafford being so seised of the reversion thereof expectant after the death of the said George, he the said Crafford afterwards, to wit, on the 18th day of March, in the 20th year of the reign of His late Majesty Charles the First, late King of England, &c. at Southwald aforesaid, by his certain indenture of bargain and sale, (2) made between (1) Here the lease is not to commence until a future period, viz. the death of tenant for life; but the lessee has, in the meantime, a right of entry, which is called his interest in the term, or interesse termini; and this he may grant to another; or if he dies, his executors or administrators may enter. Co. Litt. 46 b. 270 b. For this reason it is that the lessee is said in this declaration to be possessed of the interest of the said term. However, to many purposes he is riot tenant for years until he enters ; as a release made to him is not good to increase his estate before entry. Co. Litt. 46, 270 a.; (a) but this is not to be understood of a conveyance by deeds of lease and release under the Statute of Uses.(i) So the lessor cannot grant away the reversion by the name of the reversion, before entry. Co. Litt. 46.(c) But when the lessee enters in pursuance of his right to enter, he is then, and not before, in possession of his term; and in that ease the language of pleading is, " by virtue of which said demise the lessee entered into the demised premises, and was thereof possessed." (2) This species of conveyance was introduced by the Statute of Uses, 27 H. 8, c. 10, which in pleading is called the Statute for Transferring Uses into Possession. It is a, real contract, whereby the bargainer, for some pecuniary consideration, bargains and () But if a rent be reserved, and the lessor, before entry of the lessee, release to him all his right in the land, although this cannot enure to increase the estate, yet it shall to extinguish the rent. Co. Litt, 270 b. So if the lessor expressly release the rent. Ibid. 46. (&) "Nor of terms in remainder, nor of terms granted out of a vested remainder or a reversion, when such terms are vested estates, and when they would entitle the termor to the possession, if the particular estate were immediately to determine." Watkins on Conveyancing, by Morley and Coote, p. 34. As to the distinction between reversionary leases and leases of the reversion, see p. 36, ibid. [2 M. & VV. 684, Smith v. Day.] (c) [1 Cr. & J. 398, Edge v. Strafforcl, per Bayley B. So on the principle that the lessee has a right only, and not an estate, before entry, it is held that the doctrine of merger is inapplicable to an interesse termini. 5 B. & C. Ill, Doe v. Walker. 7 D. & R. 487, S. C.] 300 TOOK V. GLASCOCK 1 WM8. SAUND. 232. the said Grafford, by the name of Crafford Gibbens of Cliffords Inn, London, son and heir of Winifrid Gibbens, late wife of George Gibbens of Southwald, in the county of Essex gent, which said Winifrid was daughter and heir of Arthur Crafford Esquire, of the one part, and Gilbert Kinder, by the name of Gilbert Kinder of Southwald aforesaid, gent, of the other part; (which said other part, sealed with the seal of the said Crafford, she the said Margaret brings here into Court, the date whereof is the same day and year,) and afterwards within six months, to wit, on the 19th day of March, in the 20th year of the reign of the said late King, in due manner inrolled in the Court of Chancery (3) of the said late King, according to the form of the statute in that case made and provided, for and in consideration of the sum of 871. and 10s. of lawful money of England to the said Crafford in hand paid by the said Gilbert at or before the sealing and delivery of the same indenture, the receipt whereof the said Crafford by the same indenture acknowledged, and himself therewith to be fully satisfied, and thereof, and of every part and parcel thereof, acquitted, exonerated, and discharged the aforesaid Gilbert, his heir, executors, and administrators, and every of them, for ever, by the said indenture, gave, granted, bargained, sold, enfeoffed, and confirmed to the said Gilbert, his heirs and assigns for ever, the said tenements with the appurtenances, by the name of all that messuage or tenement, garden, and backside, with their appurtenances, situate and being in Southwald aforesaid, in the said county of Essex, then or late in the tenure or occupation of John Letton, and theretofore in the tenure or occupation of Robert Holloway, or his assigns; and all those two parcels or closes of pasture-land in Southwald aforesaid, containing by estimation four acres, and adjoining, or near to, the said messuage, backside, and garden, or one of them, late also in the occupation of the said [252] Robert Hollovvay, or his assigns, and then in the occupation of the said John Letton; and also that wind-mill called Bently-mill in Southwald aforesaid, then before in the occupation of the said Robert sells the land to the bargainee, and becomes by such bargain seised to the uae of the bargainee, and then the statute completes the purchase ; or, as Mr. Justice Doderidge expresses it (Cro. Jac. 697, Eustace v. Seawen), the bargain first vests the use, and then the statute vests the possession. It is enacted by statute 27 H. 8, c. 16, that no lands shall pass from one to another, whereby any estate of inheritance or freehold shall be made, or take effect in any person, or any use thereof to be made, by reason only of any bargain and sale, unless it be made by writing, indented, sealed, and inrolled in one of the King's Courts of Record at Westminster, or with the custos rotulwum of the county, within six months next after the date of the said indenture. The computation is here by lunar, not by calendar months. 2 Inst. 674.(d) (3) It is necessary to shew in wliat Court the deed is inrolled, otherwise it is insufficient As where in debt upon a lease for years, the plaintiff declared that such a one by indenture did grant, bargain, and sell for money the reversion to him in fee, which indenture was inrolled on such a day according to the form of the statute, but did not shew in what Court it was inrolled ; after verdict for the plaintiff judgment was arrested; for the statute 27 H. 8, c. 16, speaks of some special Courts, and it is not reasonable to put the lessee to such infinite labour as to search in all the Courts, as well at Westminster as in the country, with the clerks of the peace ; and the words juxtaformam statuti will not help it. Yelv. 213, Woolby v. Pirley. S. C. Cro. Jac. 219. See 2 Saund. 12, Jefferson v. Morton, note (20). (d) When the word " month " is used in a statute without the addition of "calendar," or any other words to shew that the legislature intended calendar, it is understood to mean a " lunar...
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