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Stoughton v. Leigh, Coates v. Cheever, and Billings v. Taylor, are cited with approbation by Chancellor Green, in Reed v. Reed, 1 C. E. Gr. 248.

The American cases have modified the law of waste, to adapt it to the circumstances of a new and growing country, in order to encourage the tenant for life in making a reasonable use of wild and undeveloped lands. Hastings v. Crunckleton, 3 Yeates, 261; Findlay v. Smith, 6 Munf. 134; Ballentine v. Poyner, 2 Hayw. 110; Neel v. Neel, 7 Harris, 323; Irwin v. Covode, 12 Harris, 162.

It is suffi

In Neel v. Neel, a coal mine had been opened and worked for family use, and for the benefit of the neighbors, but a very inconsiderable quantity had been taken out. In that case, Judge Lowrie said: "It seems, in this case, that the author of the gift had sometimes sold coal out of the pits, but I do not conceive this to be material. cient that he opened them and derived any profit from them, even if it were only private. And the decisions refer to coal mines, iron mines, &c., and the tenant for life may work them, even though the working of them may have been discontinued before the death of him through whom the estate comes, and, if necessary to the proper working of them, to make new openings in the ground."

In support of these views he cites the English and American cases, and expresses himself without reference to the Statute of 1848.

Chancellor Kent says: "The American doctrine on the subject of waste is somewhat varied from the English law, and is more enlarged and better accommodated to the circumstances of a new and growing country." 4 Com. 76.

The cases referred to will show a strong inclination to amplify the privileges of the life tenant.

In a country like this, where there are such vast bodies of unimproved lands, which would otherwise lie dormant in the hands of the life tenant, public policy requires that the doctrine of waste should be liberalized, and the decisions have uniformly been in that direction.

The present case illustrates the hardship of a close rule in favor of the fee. The life estate vested in 1860, and there is an expectancy of twenty years more of this life. A construction of the law which locks up the land from all beneficial use for so long a period, and gives the life owner only the privilege of paying the land tax, should not be favored.

When the property is unimproved land, not adaptable to any other beneficial use than that of mining, the right of the life tenant to use it reasonably for such purpose, has some support in the adjudications in this country, and is certainly not without reason to uphold it.

To maintain the right of the appellant in this case, it is not necessary to broaden the rule to that extent.

The openings in this case were such as, under the English cases, will establish the right in the life estate to pursue the workings upon the veins which had been opened.

more libuat. view in U.S.

It is sufficient to show that openings were made and ore taken out with a view to profit, and it is wholly immaterial whether the ore was used in the manufacture of copperas or for some other commercial purpose.

The evidence shows a mere cessation of the work, not such an abandonment, in the legal sense of that term, as will defeat the right of the life tenant. The length of time during which cessation continued is immaterial, so long as the fact of abandonment is not established.

The decree of the Chancellor, so far as it denies the right of the appellants to work the veins of ore upon which the openings had been made in the lifetime of the owner of the fee, and so far as it enjoins such work, should be reversed, and in other respects affirmed.

Decree unanimously reversed.1

1 See Kier v. Peterson, 41 Pa. 357; Westmoreland Coal Co.'s Appeal, 85 Pa. 344.

CHAPTER V.

TITLE-DEEDS.

LEATHES v. LEATHES.

CHANCERY. 1877.

[Reported 5 Ch. D. 221.]

THIS was a motion on behalf of the plaintiff, who was tenant for life in remainder of a settled estate under a will, that he might be at liberty to deposit in court the title deeds of the estate, and that they might be retained in the custody of the court till the hearing of the action, when they might be secured for the benefit of the several persons interested in the estate.

The deeds had come into the plaintiff's possession during the lifetime of his father, the testator, for whom he acted as solicitor.

The defendant, the first tenant for life, claimed to be entitled to the custody of the deeds, but the plaintiff alleged that he had long resided in Australia, also that, as there was a contest respecting the ownership of part of the estate, the defendant might make use of the deeds by showing them to those who had an adverse claim, to the prejudice of those entitled in remainder.

Ince, Q. C., and Chester, in support of the motion.

Chitty, Q. C., and Langworthy, for the defendant.

JESSEL, M. R. A legal tenant for life of freeholds is entitled to the custody of the title deeds as a matter of right, except in cases where he has been guilty of misconduct so that the safety of the deeds has been endangered, or where the rights of others intervene, and it becomes necessary for the court to take charge of the title deeds in order to carry out the administration of the property.

In Garner v. Hannyngton, 22 Beav. 627, 630, Lord Romilly held that "the legal tenant for life is prima facie entitled to the custody of the title deeds." The question came before the Court of Exchequer in Allwood v. Heywood, 1 H. & C. 745, when the full court held that it was but reasonable that the plaintiff, who was legal tenant for life, should have the custody of the title deeds. There are many dicta to the same effect, including a passage in Sugden's Vendors and Purchasers, p. 446, n.

The only case the other way is that of Warren v. Rudall, 1 J. & H. 1, 13, where the deeds were in court, and Vice-Chancellor Wood stated the rule thus: "With respect to the title deeds, it is a settled doctrine

that this court never interferes as to the possession of deeds between a father tenant for life and a son entitled in remainder; but in the case of a stranger tenant for life the court will interfere; and this is in fact a particularly strong case, because the deeds are in court, and I am asked to deliver them out. The reversioner has no connection with the tenant for life; the title deeds must remain in court." There is a dictum

571, to the same

of Lord Hardwicke in Pyncent v. Pyncent, 3 Atk. effect; but it is quite contrary to law, for the mere fact of the reversioner being a stranger to the tenant for life has nothing to do with the question.

Now I come to consider what are the circumstances in which the court will interfere. First, the court will interfere when there is any danger to the safety of the deeds if left in the custody of the tenant for life; and, secondly, where the court is carrying out the trusts of the property, and the deeds are wanted for that purpose. Beyond these

cases the court cannot go.

The case of Stanford v. Roberts, Law Rep. 6 Ch. 310, was referred to. In that case there was a pending suit affecting the estate; and, as I understand the case, the Lords Justices were of opinion that there was an actual duty to be performed by the trustees, and Lord Justice James observed: "This case does not appear to me to turn on the mere question of legal title. There is a pending suit which relates to these estates, and which is being actively prosecuted. The only question, then, is where, having regard to the purposes of the suit, the deeds can be most conveniently kept. The Vice-Chancellor has, in the exercise of his judicial discretion, held that it is most convenient to allow them to remain where they are, and with that discretion we shall not interfere."

The other case referred to was that of Jenner v. Morris, Law Rep. 1 Ch. 603, 606. That was rather a peculiar case. A suit had been instituted for raising portions out of a settled estate. Pending the suit, the tenant for life took a number of the leases to Paris. He afterwards, under an order of the court, brought the whole of the title deeds and leases into court for the purposes of the suit. After the purposes of the suit had been satisfied and the portions raised by mortgage, he applied to have the title deeds and leases given up to him. This application was opposed by the mortgagees, and refused by Vice-Chancellor Kindersley. When the case came before the Court of Appeal, Lord Justice Knight Bruce said: "I cannot, without the consent of the mortgagees, concur in an order for delivery of these documents to a tenant for life who on a former occasion has, without any necessity, taken a number of them out of the jurisdiction." Therefore the sole ground of his decision was, that the tenant for life had taken them out of the jurisdiction, and that in his opinion there was danger to the deeds if they remained in his custody. Lord Justice Turner did not agree, but by consent an order was made for the delivery of the deeds to the tenant for life upon his giving security for their safe custody, and

for their production at reasonable times, and for their return into court if ordered.

In the present case, the first reason in support of the motion that I have to consider is, that the tenant for life has for many years resided in Australia. That is no reason at all. Secondly, it is urged that there is a contest as to the ownership of a portion of the estate, and that the tenant for life might show the deeds to the adverse claimants. There appears, however, no ground for such a suspicion.

NOTE. HEIRLOOMS.

The motion must be refused.

"And note, that in some places chattels as heirlooms (as the best bed, table, pot, pan, cart, and other dead chattels movable) may go to the heir, and the heir in that case may have an action for them at the common law, and shall not sue for them in the ecclesiastical court; but the heirloom is due by custom, and not by the common law." Co. Lit. 18 b.

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