Cumberland; and by her will duly executed, devised her messuage or tenement, called Catlowdy, to her daughter Ann, the wife of John Milbourn, for her life with power to dispose thereof by will. Lucy Dixon died so seised, on the 15th of June 1797. At the time of making her will, and also of her death, both Catlowdy and Simeons Onset were occupied as one farm, being in the possession of the same person as tenant from year to year of the whole, under one rent; which person continued in possession as tenant until the year 1807. From the time of the death of Lucy Dixon, Ann Milbourn, and John Milbourn her husband, contending that Simeons Onset passed by this devise, received the rents of both estates during her life. Ann Milbourn died in 1801, and after her death, her husband John Milbourn received the rents and profits both of Catlowdy and Simeons Onset, as tenant by the curtesy until his death, which took place in June 1815. In 1807, the said John Milbourn granted a lease of the two tenements to John Forster and Adam Forster for nine years, under which the lessees held the possession, and paid the rent to John Milbourn during his life; the last rent which was paid by them to John Milbourn was at Whitsuntide 1815, and then due, which was subsequently to the death of John Milbourn Dixon, the other obligor, which took place on the 27th of April 1815. The obligor John Milbourn Dixon was the heir at law of Lucy Dixon, and he, in Hilary Vacation 1815, served a declaration in ejectment upon the tenant in possession of Simeons Onset, claiming it as heir at law of Lucy Dixon, but he died as before stated, on the 27th of April 1815, and no further proceedings took place therein. The defendant, after the death of his father, brought another ejectment, and after obtaining a judgment by default, recovered the possession of Simeons Onset in Trinity Vacation 1815. Afterwards one Isaac Milbourn, the son of the said Ann Milbourn, brought an ejectment for the same premises, which was defended by J. M. Dixon the present defendant, upon the trial of which a verdict was found for the defendant, and a rule nisi having been obtained to set aside that verdict, the Court of King's Bench upon argument discharged the rule, being of opinion that Simeons Onset did not pass either by the will of Lucy Dixon or of Ann Milbourn. The question for the opinion of the court is, whether the present defendant took Simeons Onset by descent from his father. Patteson, for the plaintiff. Tindal, contra. ABBOTT, C. J. I am of opinion that the verdict on the last issue must be entered for the plaintiffs. It is clear that if the obligor was ever actually seised of the estate in question, for however short a time, the defendant takes it by descent from him. But the seisin of the obligor must be shown to have been a seisin in fact. That is also necessary to make a possessio fratis, so as to cause the descent of an estate to a sister of the whole blood, in preference to a brother of the half blood; and therefore whatever seisin suffices in the latter case will suffice to charge the defendant in this action. Adverting to the doc trine on this point in Co. Lit. 15 a, we find it ssic father maketh a lease for years, and the lessee entereth, and dieth,' the eldest son dieth during the term, before entry or receipt of rent, the Jess of class. estate the youngest son of the half blood shall not inherit, but the sister; quadian because the possession of the lessee for years (and a tenant from year in heir. to year is to be considered a lessee for years for this purpose,) is the possession of the eldest son so as he is actually seised of the fee simple, Su notes in and consequently the sister of the whole blood is to be heir." This establishes that the possession of a tenant for years, being a rightful possession, is considered in law as the possession of the heir, and therefore gives him a seisin in fact. On the authority of this doctrine, which has been very often recognized in other cases, I think that we are bound to say that the obligor, J. M. Dixon, was for a time seised in fact of Simeons Onset, and consequently that the defendant had the land by descent from him, and is thereby rendered chargeable in this action. BAYLEY, J. It is clear on which side the justice of this case lies, for as heir either of Lucy Dixon or of his father, the defendant is certainly liable to discharge this bond. But still we must see that he is properly charged as heir of his father, in order to give judgment for the plaintiffs in this action. It seems to me that the taking of the esplees by the tenant is a taking for the person seised of the freehold. In Ratcliffe's Case, 3 Co. 42, there is this passage relating to the doctrine of possessio fratris, "If the elder son enters, and by his own act hath gained the actual possession, or if the lands were leased for years, or in the hands of a guardian, and the lessee or guardian possess the land, there the possession of the lessee or guardian doth vest the actual fee and freehold in the elder brother." Where there is no one in possession at the death of the ancestor, there must be an actual entry by the heir to give him the seisin in fact. But when there is a tenant, his possession becomes that of the heir immediately on the death of the ancestor. The subsequent misconduct of the tenant in paying rent to another person, or the mistake of the heir as to his rights, cannot by relation alter the nature of the seisin which he before had. In this case, therefore, I am of opinion that the defendant took the land in question by descent from his father, and that the verdict on the last issue must be entered for the plaintiffs. HOLROYD, J. I think that the defendant is liable to this action as heir of his father, having received lands by descent from him, bis father having been seised of them in fact. Lord Coke puts the two cases of a man dying seised of lands in his own possession, and of lands in the possession of a tenant for years. If he is in possession. himself, the freehold descends on the heir, and he is immediately seised in law, but not in fact. In Co. Lit. 277 a, speaking of an abator, he says: "Abate is both an English and French word, and signifieth, in its proper sense, to diminish or take away; as here by his entry he diminisheth and taketh away the freehold in law descended to the heir." And again: "A disseisin is a wrongful putting out of him that is actually seised of a freehold. Ar abatement is when a man died seised of an estate of inheritance, and between the death and the entry of the heir an estranger doth interpose himself, and abate." So that if a man die seised of land in his own possession, and the heir does not enter, and a third person does, that which would have been a disseisin if the heir had entered, is an abatement. Again, in Co. Lit. 243 a, it is said, that if the ancestor leases for years, and dies, the possession of the lessee for years maketh an actual freehold in the eldest son. Thus, the case of an ancestor dying seised of lands in the possession of a tenant for years, is, in this respect, put on a different footing from his dying seised where there is no tenant; and in the former case the heir has such a seisin as renders the land descendible from him. And if there be an actual seisin in the heir, that will not be defeated ab initio by a subsequent neglect on his part to claim rent, or on the part of the tenant to pay it. The lessee was bound to pay rent to the lessor and his heirs, and therefore cannot be permitted to say that he took the esplees for any one else. The defendant in this case then must claim the land by descent from his father, the obligor, and is liable to be charged with the bond debt. LITTLEDALE, J. I also am of opinion that the plaintiffs are entitled to recover on the third issue. If the obligor was ever actually seised, the defendant takes by descent from him. At the moment of Lucy Dixon's death, the obligor did become actually seised, for the possession of the tenant for years is the possession of the owner of the freehold. In the old entries of pleadings in real actions leases for years are never noticed; it is never said that the land descended from A. to B. subject to a term. In those days it was considered that the tenant was in the nature of a bailiff or servant, and therefore that he took the esplees for the benefit of the owner of the freehold. But stress has been laid on the fact of rent being paid to a third person. That, however, makes no difference. Although no rent was paid to the obligor, still at the moment of Lucy Dixon's death the possession of the tenant was the possession of her heir. He then became immediately seised in fact. It is immaterial to this question whether he was afterwards disseised or not, the land descended from him to the defendant, who is therefore liable to discharge the bond of his ancestor. Judgment for the plaintiffs.' 1 Cf. Goodtitle v. Newman, 3 Wils. 516. SECTION II. BREAKING DESCENT.1 A. By Deed. Co. LIT. 12 b. It is necessary to be known in what cases the heir of the part of the mother shall inherit, and where not. If a man be seised of lands as heir of the part of his mother, and maketh a feoffment in fee, and taketh back an estate to him and to his heirs, this is a new purchase, and if he dieth without issue, the heirs of the part of the father shall first inherit. If a man so seised maketh a feoffment in fee upon condition, and die, the heir of the part of the father, which is the heir at the common law, shall enter for the condition broken, but the heir of the part of the mother shall enter upon him, and enjoy the land. A man so seised maketh a feoffment in fee reserving a rent to him and to his heirs, this rent shall go to the heirs of the part of the father; but if he had made a gift in tail, or a lease for life reserving a rent, the heir of the part of the mother shall have the reversion, and the rent also as incident thereunto shall pass with it; but the heir of the part of the mother shall not take the advantage of a condition annexed to the same, because it is not incident to the reversion, nor can pass therewith. If a man had been seised of a manor as heir on the part of his mother, and before the Statute of Quia emptores terrarum, had made a feoffment in fee of parcel to hold of him by rent and service, albeit they be newly created, yet for that they are parcel of the manor, they shall with the rest of the manor descend to the heir of the part of the mother, quia multa transeunt cum universitate quæ per se non transeunt. If a man hath a rent-seck of the part of his mother, and the tenant of the land granteth a distress to him and to his heirs, and the grantee dieth, the distress shall go with the rent to the heir of the part of the mother, as incident or appurtenant to the rent, for now is the rent-seck become a rent-charge. 1 See Watkins on Descents, c. 5. But here Lord Coke must be understood to speak of two distinct conveyances in fee; the first passing the use as well as the possession to the feoffee, and so completely divesting the feoffor of all interest in the land; and the second regranting the estate to him. For if in the first feoffment, the use had been expressly limited to the feoffor and his heirs, or if there was no declaration of uses, and the feoffment was not on such a consideration as to raise an use in the feoffee, and consequently the use resulted to the feoffor, in either caso he is in of his ancient use, and not by purchase. - Harg. note. VOL. IV. - 2 Co. LIT. 13 a. A man so seised as heir on the part of his mother maketh a feoffment in fee to the use of him and his heirs, the use being a thing in trust and confidence shall ensue the nature of the land,1 and shall descend to the heir on the part of the mother. A man hath a seigniory as heir of the part of his mother, and the tenancy doth escheat, it shall go to the heir of the part of the mother. If the heir of the part of the mother of land whereunto a warranty is annexed is impleaded and vouch, and judgment is given against him, and for him to recover in value, and he dieth before execution, the heir of the part of the mother shall sue execution to have in value against the vouchee, for the effect ought to pursue the cause, and the recompense shall ensue the loss. GODBOLD v. FREESTONE. NISI PRIUS, COMMON PLEAS. 1694. EJECTMENT, and Not guilty, tried before Holt, Chief Justice, at Suffolk Assizes, he being of opinion for the plaintiff but doubting, a verdict was by his direction given for the plaintiff, but by consent of parties a case was made to be argued before him at his chambers at Serjeants-Inn, and according to his opinion there, either the judgment to be entered or the verdict to be stayed; and the case was this. A man seised of lands by descent a parte materna, makes a feoffment of all the lands to uses, viz. of Blackacre to the use of himself for life, the remainder to his wife for her life, the remainder to the heirs of his body on his wife begotten, the remainder to his right heirs. And of Whiteacre to the use of himself for 99 years if he so long lived, the remainder to trustees for his life, remainder to his wife for her life, remainder to his first and so to his tenth sons in tail, remainder to him and his heirs; the husband and wife are both dead without issue; and if the heirs a parte paterna or a parte materna should have the lands? was the question. And now upon argument at his chamber he changed the opinion he was of at the assizes, and held that the heir a parte materna should have the whole; and he did not make any difference between the cases, though the one is to himself for life, and the other for years: and Co. Lit. 13, 23, was cited, that where one takes an estate to himself for years, the remainder to his heirs, this is a new estate in him and not the ancient reversion; otherwise when he takes an estate for life, the remainder to his heirs; and Hob. 33 and Dy. 134 a, 163, where it is held, that when a man seised a parte materna makes a feoffment, or levies a fine, &c. and expressly declares the use to him and his heirs; this shall be to the use of his heirs a parte paterna : 1 The better reason seems to be, that the use being the same as it was before the feoffment, it is the old use which continues. - Harg. note. |