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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 ap pellants 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 See Kier v. Peterson, 41 Pa. 357 ; Westmoreland Coal Co.'s Appeal, 85 Pa. 344.
LEATHES V. LEATHES.
[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.
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 of Lord Hardwicke in Pyncent v. Pyncent, 3 Atk. 571, to the same 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.
The motion must be refused.
NOTE. - HEIRLOOMS. “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 thein in the ecclesiastical court; but the heirloom is due by custoni, and not by the common law." Co. Lit. 18 b.
Lit. $ 68. TENANT at will is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him. Yet if the lessee soweth the land, and the lessor, after it is sown and before the corn is ripe, put him out, yet the lessee shall have the corn, and shall have free entry, egress and regress to cut and carry away the corn, because he knew not at what time the lessor would enter upon him. Otherwise it is if tenant for years, which knoweth the end of his term, doth sow the land, and his term endeth before the corn is ripe. In this case the lessor, or he in the reversion, shall have the corn, because the lessee knew the certainty of his term, and when it would end."
Co. Lit. 55 a, 55 b. “Yet if the lessee soveth the land, and the lessor after it is sown, &c.” The reason of this is, for that the estate of the lessee is uncertain, and therefore lest the ground should be unmanured, which should be hurtful to the Commonwealth, he shall reap the crop which he sowed in peace, albeit the lessor doth determine his will before it be ripe. And so it is if he set roots, or sow hemp or flax, or any other annual profit, if after the same be planted, the lessor oust the lessee ; or if the lessee dieth, yet he or his executors shall have that year's crop. But if he plant young fruit trees, or young oaks, ashes, elms, &c., or sow the ground with acorns, &c., there the lessor may put him out notwithstanding, because they will yield no present annual profit. And this is not only proper to a lessee at will, that when the lessor determines his will that the lessee shall have the corn sown, &c., but to every particular tenant that hath an estate uncertain, for that is the reason which Littleton expresseth in these words (because he hath no certain nor sure estate). And therefore if tenant for life soweth the ground and dieth, his executors shall have the corn, for that his estate was uncertain, and determined by the act of God. And the same law is of the lessee for years of tenant for life. So if a man be seised of land in the right of his wife, and soweth the ground, and he dieth, his executors shall have the corn, and if his wife die before him he shall
1 In tenancies for years the law is otherwise in Pennsylvania. Stultz v. Dickey, 5 Binn. 285 (1812).