William Beer v Adam Warren Beer
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1852 |
| Date | 05 February 1852 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 823
IN THE COURT OF COMMON PLEAS
S. C. 21 L. J. C. P. 124; 16 Jur. 223.
[60] william beer v. adam warren beer. Feb. 5, 1852. .[S. C. 21L. J. C. P. 124; 16 Jur. 223.] The statute of apportionment, 4 W. 4, c. 22, does not apply as between the personal representative and the heir of a tenant in fee.-A. andB., tenants in common in fee, made a joint demise of land to C., with a general redderidum, not saying to whom the rent was payable. A. died on the 15th of March, 1848, and B. received the half-year's rent due at the following Lady-Day, less 12s. 6d., which he deducted as the share of A.'s heir, for the period between A.!s death and the time the half-year's rent became due:-Held, that, although the words of the demise were joint, the reversions were several, and the rent followed the reversions; and, consequently, that the heir of A. was entitled to the moiety.of the half-year's rent accruing at Lady-Day, 1848, and might maintain an action of account against B., as bailiff, upon the statute 4 Anne, c. 16, s. 2*7, for receiving more than his just share.-Held, also, on motion in arrest of judgment, that the declaration was good, without an averment that a reasonable time had elapsed between the request to account and the commencement of the action. This was an action of account. The declaration stated that one Thomas Beer was seised in his demesne as of fee of and in one undivided moiety or half part, the whole in moieties to be divided, of and in certain closes or pieces or parcels of land, with the appurtenances, to wit, Cribhouse Common, Inner Cribhouse Common, Lower Furzey Piece, Higher Furzey Piece, and Little Common, situate in the parish of Leigh, in the county of Dorset, and, being so seised of and in one undivided moiety or half part, the whole in moieties to be divided, of and in the said closes or pieces or parcels of land, with the appurtenances, as aforesaid, he the said Thomas Beer afterwards, to wit, on the 8th of March, 1848, died seised thereof; whereupon and whereby the said undivided moiety or half part of and in the said closes or pieces or parcels of land, with the appurtenances, then descended and came, to the plaintiff, as son and heir of one William Beer, who was brother of the said Thomas Beer; and thereby he the plaintiff then became, and from thence for a long space of time, to wit, hitherto, was seised of and in the same undivided moiety or half part, the whole in moieties to be divided, of and in the said closes or pieces or parcels of land, with the appurtenances, in his demesne as of fee; and the defendant, during all the time aforesaid, held the said closes or pieces or parcels of land, with the appurtenances, with the plaintiff, as tenants in common : and the defendant had [61] also, during all the time aforesaid, the care and management of the whole of the said closes or pieces or parcels òof land, with the appurtenances, to receive and take the rents, issues, and profits thereof, and, as bailiff of the plaintiff of what he received more than his just share and proportion thereof, to render a reasonable account thereof to the plaintiff, and his said share thereof, when the defendant should be thereunto afterwards requested, òaccording to the form of the statute in that case -made and provided : and, although the defendant, during the time-aforesaid, received-more than his just-sha,re and propor- 824 BEER V. BEER 12C.B. 62. tion of the rents, issues, and profits of the said closes or pieces or parcels of land, with the appurtenances, and the plaintiff's share thereof, that is to say, the whole of the rents, issues, and profits of the said closes or pieces or parcels of land, with the appurtenances; yet the defendant, although he was afterwards, to wit, on the 18th of October, 1849, requested by the plaintiff so to do, had not yet rendered a reasonable account to the plaintiff of the said rents, issues, and profits so received as aforesaid, or either of them, or any part thereof, or of the said share of the said plaintiff, or any part thereof, but had hitherto wholly neglected and refused so to do, contrary to the form of the statute in that case made and provided; wherefore the plaintiff said he was injured, and had sustained damage to the value of 1001., and therefore he brought suit, &c. The defendant pleaded,-First, that the said Thomas Beer was not seised of any such undivided moiety of the said several closes or pieces or parcels of land, with the appurtenances, in the declaration mentioned, or of any or either of them, as the plaintiff had above thereof in his said declaration alleged ; concluding to the country. Secondly,-that the said several closes, pieces, or parcels of land, with the appurtenances, in the declaration mentioned, did not, nor did any or either of them, de-S52]-scend or come to the plaintiff as son and heir of the said William Beer, in the eclaration alleged to have been the brother of the said Thomas Beer, in manner and form as the plaintiff had above thereof alleged, or in any other manner whatsoever; nor was the plaintiff ever seised in his demesne as of fee of and in the said undivided moiety or half part of or in the said .closes, pieces, or parcels of land, with the appurtenances, or of any or either or any part thereof, in manner and form as the plaintiff had above in that behalf in his said declaration alleged ; concluding to the country. Thirdly,-that he the defendant did not hold the said closes, pieces, or parcels of land, with the appurtenances, or any or either of them, or any part thereof, together with the plaintiff, as tenants in common, in manner and form as the plaintiff had above in his said declaration in that behalf alleged; concluding to the country. Fourthly,-that he the defendant had not, during the said time in the declaration mentioned, or at any other time, the care and management of the whole of the said closes or pieces or parcels of land, with the appurtenances, or of any or either or any part thereof, to receive and take the rents, issues, or profits thereof, or, as bailiff of the plaintiff of what he received more than his just share and .proportion of the same, to render a reasonable account of the same to the plaintiff, and his just share thereof, in manner and form as the plaintiff had above in his said declaration in that behalf alleged; concluding to the country. Fifthly,-that he the defendant never did receive more than his just share and proportion of the rents, issues, and profits of the said closes, pieces, or parcels of land, with the appurtenances, or of any or either or any part thereof, in manner and form as the plaintiff had above in his said declaration in that behalf alleged; concluding to the country. [63] Sixthly,-that he the defendant was not, on the day and year, in that behalf mentioned in the declaration, or at any time before the commencement of this suit, reasonably requested by the plaintiff to render any account to the plaintiff of the said rents, issues, and profits so received as in the said declaration mentioned, in manner and form as the plaintiff had above in his said declaration in that behalf alleged ; concluding to the country. Seventhly,-that he the defendant, theretofore, to wit, when and so soon as he was thereunto requested by the plaintiff, and before the commencement of this suit, to wit, on the 18th of October, 1849, did duly render a reasonable account to the plaintiff of all rents, issues, and profits received by the defendant, being more than his just share, and of the said share of the plaintiff, according to the form of the statute in such case made and provided,-verification. The plaintiff joined issue on the first six pleas, and replied to the last, that he the defendant did not render a reasonable account to the plaintiff, of the rents, issues, and profits in the declaration mentioned, in manner and form as the defendant had above in his said last plea in that behalf alleged ; concluding to the country. Issue thereon. The cause was tried before Lord Campbell at the Dorchester Summer Assizes, 1851, when the following facts appeared in evidence:- I2C.B. 6. BEER V. BEER 825 In the year 1833, the defendant Adam Warren Beer, and his brother Thomas Beer, the uncle of the plaintiff, purchased of one Kellaway the property in question, consisting of about thirty-four acres of freehold land on Points Common, for the sum of 6001.; and the same was conveyed to them by indentures of lease and release of the 27th and 28th of December, 1833, as tenants in common, in fee. [64] On the 31st of January, 1845, by articles of agreement made "between Thomas Beer and Adam Warren Beer, for themselves and the survivor of them, their heirs, executors, and administrators, of the one part, and Benjamin Neal, for himself, his heirs, executors, and administrators, of the other part," the land in question, together with about sixty acres of copyhold land, was demised to Neal for five years from the 25th of March then next, if the estate and interest of the said Thomas Beer and Adam Warren Beer should so long continue, at the yearly rent of 1351., payable half-yearly, on the 29th of September and the 25th of March in every year, the first half-yearly payment of such rent to be made on the 29th of September next ensuing. The agreement contained a covenant by .Neal to " well and truly pay the said rent of 1351. at the time and in manner aforesaid," and various other covenants regulating the mode of enjoyment of the demised land, and also an agreement, that, " if, at the expiration of any half-year during the said term, there shall be only due from the said Benjamin Neal one half-year's rent for the said premises, that then and in such case, but not otherwise, the said Thomas Beer and Adam Warren Beer shall allow to the said Benjamin Neal three calendar months for payment thereof, and shall not take any means to recover the same...
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