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In an action on the case on trover and conversion of certain cows, the defendant justified for rent pur auter vie granted to one, his executors and assigns, and showed how the grantee died intestate, living cestui que vie, and that the defendant took administration and distrained the cows for the arrears, and put them in an open pound, which was the conversion. The plaintiff demurred in law; and it was adjudged pro querente, because the administrator was not special occupant of this rent, but the rent was determined by the death of the grantee, yet the grantee could have granted or assigned it in his lifetime. And if the grant had been to the grantee and his heirs, the heir would be special occupant, as 8 Eliz. Dyer. And POPHAM said that if rent was granted pur auter vie with remainder over, and the grantee died, he in remainder would commence immediately, because the rent for life determined by the death of the grantee.1

Co. LIT. 41 b. Now it is to be understood, that if the lessee in that case [i. e., pur auter vie] dieth living cestui que vie (that is, he for whose life the lease was made), he that first entereth shall hold the land during that other man's life, and he that so entereth is within Littleton's words, viz. tenant pur auter vie, and shall be punished for waste as tenant pur auter vie, and subject to the payment of the rent reserved, and is in law called an occupant (occupans), because his title is by his first occupation. And so if tenant for his own life grant over his estate to another, if the grantee dieth there shall be an occupant. In like manner it is of an estate created by law; for if tenant by the curtesy or tenant in dower grant over his or her estate, and the grantee dieth, there shall be an occupant.2 But against the king there shall be

1 So, in case of an executor, Buller v. Cheverton, 2 Roll. Ab. 150, 151 (1628).

2 In some books it is asserted, that there cannot be an occupant of estates created by law, without distinguishing between a general and a special occupant. Cro. Eliz. 58. 1 Bulstr. 135. 2 Ro. Rep. 123. Probably the assertion was meant to be confined

Cal, civil.

Code, */66.

And therefore no

no occupant, because nullum tempus occurrit regi. man shall gain the king's land by priority of entry. There can be no occupant of anything that lieth in grant,' and that cannot pass without deed, because every occupant must claim by a que estute, and aver the life of cestui que vie. It were good to prevent the uncertainty of the estate of the occupant to add these words (to have and to hold to him and his heirs during the life of cestui que vie) and this shall prevent the occupant, and yet the lessee may assign it to whom he will; or if he hath already an estate for another man's life without these words, then it were good for him to assign his estate to divers men and their heirs during the life of cestui que vie.2

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AVOWRY; for that one James Strangeways was seised in fee, and granted a rent-charge of twenty pounds a year to William Rabanks, to him and his heirs during his life, and the lives of Mary his wife and of Dorothy and Mary his daughters; and that William Rabanks died in the year 1596, Mary being his daughter, who married with the defendant Peter Poore in the year 1603; and because, at Michaelmas 1597, there was twenty pounds arrear, and not paid to the said Peter and Mary his wife, for the rent so arrear the said husband distrained, and

avows.

The plaintiff pleaded the Statute of Usury; and found against him, and adjudged for the defendant.

to the former, for as to the latter the authorities seem decisive in favor of the heir's taking as special occupant if named in granting over curtesy or any other estate created by law. See 27 Ass. pl. 31. Plowd. 28, and 556, and Palm. 32. But even the doctrine against general occupancy of estates created by law comes merely from persons arguing as counsel, who neither explain why it should not be, nor cite any authorities except 15 E. 3. Fitzh. Abr. Seire facias pl. 17, which appears foreign to the purpose. Harg. note.

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1 Lord Hale adds, nor of a copyhold. Hal. MSS. See acc. 2 L. Raym. 1000, and the reason why in 6 Mod. 66. As to things lying in grant, Lord Coke in mentioning them must be understood to mean general occupancy only; for he writes in another place, that if heirs are named in the grant of a rent pur auter vie, they shall take, though formerly this was doubted. See post, 388. Dy. 186, ed. 1689, in marg. 1 Bulstr. 155. Mo. 625, 664, and Godb. 172. Harg. note.

2 When A. having a life estate (either for his own life or pur auter vie) grants it to B., a question may arise whether he intends to grant his whole interest or to make a grant only to B. for B.'s own life. See Barron v. Barron, Drury, temp. Nap., 384; Brenan v. Boyne, 16. Ir. Ch. 87; Currin v. Doyle, 3 L. R. Ir. 265; and note to St. 29 Car. II. c. 3, § 12, post, p. 39. - ED.

A writ of error being brought, the first error assigned was, Because this rent granted to one and his heirs during his life and two others, is not descendible to the heir, nor shall the heir be occupant thereof. But ALL THE COURT held these limitations to be good enough; and that the heir shall have this rent as a party specially nominated, and as heir by descent, although it be not properly an estate descendible. Vide Lit. 168, 189; 19 Edw. 3, "Account," 36; Dyer, 233; and 16 Eliz. Dyer; 11 Hen. 4, pl. 2.1

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EJECTMENT. Upon a special verdict the case was, That the Bishop of Worcester made a lease to Sir William Whoorwood for the life of him and two of his sons; Sir William Whoorwood let the land to John Mallet at will, rendering rent, and after died; Mallet the lessee holds himself in, but mentions not how he claims, as occupant or otherwise: William Whoorwood (one of the sons of Sir William Whoorwood) being one of the cestui que vie, entered as occupant, and let it to the plaintiff; and the defendant, by the command of Mallet the lessee, ousted him.

The question was, Whether Mallet were the occupant, without claiming it as occupant? or, Whether the other may enter by occupancy?

It was adjudged for the defendant, that the lessee was occupant; for he being in possession, the law casts the freehold upon him, unless he waives it and it is not requisite that he claim as occupant, unless there be a disclaimer in it; for being for his advantage, the law shall adjudge it in him as occupant. Wherefore it was adjudged for the defendant.2

ST. 29 CAR. II. c. 3, § 12 (1676). And for the amendment of the law in the particulars following; (2) be it further enacted by the authority aforesaid, That from henceforth any estate pur auter vie shall be devisable by a will in writing, signed by the party so devising the same, or by some other person in his presence and by his express directions, attested and subscribed in the presence of the devisor by three or more witnesses; (3) and if no such devise thereof be made,

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1 The rest of the case is omitted.

2 See Chamberlain v. Ewer, 2 Bulst. 11.

3 In Doe d. Jeff v. Robinson, 2 Man. & R. 249 (1828), A., seised of an estate to him and his heirs for the life of B., devised it to C., without using words of inheritance. Held, that C. took the estate for his own life only. But see Serjeant Manning's note to the case. Hagarty v. Nally, 13 Ir. C. L. 532, follows Doc d. Jeff v. Robinson; and

the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy as assets by descent, as in case of lands in fee simple; (4) and in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands.1

LOW v. BURRON.

CHANCERY. BEFORE LORD TALBOT, C. 1734.

[Reported 3 P. Wms. 262.]

THE bill was for an account of the rents and profits of divers messuages and lands in Warrington, in Lancashire, on this case; John Casson, seised of an estate for three lives in the premises, by his will dated the 12th of January, 1684, devised them to his daughter Mary Mollineux for life, remainder to her issue male, and for want of such, remainder to one Low, under whom the plaintiff claimed. Mary Mollineux, by lease and release conveyed the premises, in consideration of her marriage with Edward Burron, to the use of herself and her intended husband, and the heirs of their bodies, remainder to the heirs of her husband Burron. In 1705 Mary died without issue, and the plaintiff, claiming under the person in remainder, now brought this bill for an account of the rents and profits.

The questions were, first, One having an estate for three lives, and devising it to A., in tail, remainder to B., whether this remainder was good? 2dly, supposing it to be good, whether A. by such lease and release could bar it?

As to the first it was said, and so agreed by the court, that the limitation of an estate pur autre vie to A., and the heirs of his body, makes no estate-tail in A., for all estates-tail are estates of inheritance, to which dower is incident, and must be within the Statute De Donis; whereas in this kind of estate, which is in no inheritance, there can be no dower, neither is it within the Statute, but a descendible freehold only.

Also the Lord Chancellor held plainly, that this was a good remainder to B. on A.'s death without issue, it being no more than a description, who should take as special occupants during the lives of these three cestui que vies. As if the grantor had said, "instead of a

see note to Barron v. Barron, Drury, temp. Nap., 384, 393. Cf. cases cited in note, ante, p. 38, to Co. Lit. 41 b.

1 This clause applies to incorporeal hereditaments. Bearpark v. Hutchinson, 7 Bing. 178 (1830).

See 14 Geo. II. c. 20, § 9, post, and 1 Vict. c. 26 (Wills Act) §§ 2, 3, 6.

wandering right of general occupancy, I do appoint, that after the death of A., the grantee, they who shall happen to be heirs of the body of A. shall be special occupants of the premises; and if there shall be no issue of the body of A., then B. and his heirs shall be the special occupants thereof." And that here can be no danger of a perpetuity; for all these estates will determine on the expiration of the three lives. So, if instead of three, there had been twenty lives, all spending at the same time, all the candles lighted up at once, it would have been good; for, in effect, it is only for one life (viz.), that which shall happen to be the survivor. For which reason, it were very improper to call this an estate-tail, since at that rate it would not be liable to a forfeiture, or punishable for waste, the contrary whereof is true.

2dly, the Lord Chancellor said, that though by a lease, or by a lease and release, A. might bar the heirs of his body, as in some respects claiming under him, yet he inclined to think A. could not bar the remainder over to B., who was in the nature of a purchaser, and would be no way subject to the encumbrances of A. any more than if the estate pur autre vie had been limited to A. for life, remainder to B. for life; in which case plainly A. could not bar B. especially by this conveyance of lease and release, which never transfers more than may lawfully pass; whereas the conveying away or barring the remainder limited to B. (admitting it to have been a good remainder) is doing a wrong to B. and depriving him of an estate, which was before lawfully vested in him. Nay, indeed, it seemed to him, as if no act which A. could do, would be capable of barring this limitation over to B. in regard there could be no common recovery suffered thereof, it being only an estate for lives; and his Lordship said, that this (as he remembered) was determined in the case of Sir Hardolph Wasteneys in the House of Lords, upon an appeal from this court.

But notwithstanding all this, yet, it appearing that the right of the plaintiff, and of those under whom he claimed, had accrued so long since as the year 1705, now near thirty years ago, during all which time the defendant's possession had been unmolested, and the Statute of Limitations being pleaded, (though it was urged, that the plaintiff had not the lease in his possession, and that the defendant in his plea had set forth, that the lease had been renewed: and though it was moreover insisted, that however the plaintiff might be disabled from bringing an ejectment, he might yet bring a bill in equity;) the Lord Chancellor declared, he would grant no relief in the case of so stale a demand, and therefore allowed the plea.1

ST. 14 GEO. II., c. 20, § 9 (1741). And whereas, by an Act made in the twenty-ninth year of King Charles the Second, intituled, An Act for prevention of frauds and perjuries, amongst other things, it is enacted, that estates pur auter vie, whereof no devise should be made,

1 It is now settled that a quasi tenant in tail of an estate pur auter vie can bar remainders by a deed. See Fearne, C. R. 495 et seq.

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