Lewis Bowles's Case. Rule.

ENGLISH NOTES.

In the case of In re Fisher & Grazebrook's Contract, 1898, 2 Ch. 660, 67 L. J. Ch. 613, 79 L. T. 268; 47 W. R. 58, it was held by ROMER, J., that sect. 22 of the Settled Land Act, 1882, which confers on the tenant for life the option of having capital money arising under the Act paid either to the trustees of the settlement or into Court, pre-supposes that there are trustees for the purposes of the Act in existence. So that, where there are no such trustees, the vendor cannot require the purchaser to complete by paying the money into Court, and taking a conveyance from him as tenant for life. Although if the purchaser, in ignorance of the fact that there were no such trustees, had paid his money into Court, he would (in the opinion of the learned Judge) have got a good title.

WASTE.

See also "DILAPIDATIONS," 9 R. C. 419-512 passim; "MINES AND Minerals," Sect. V., 17 R. C. 723-754, passim.

LEWIS BOWLES'S CASE.

(PASCH. 13 JAC. 1.)

RULE.

IF a tenant for life or for years fells timber, or if trees are blown down by the wind, the timber belongs to the remainderman; but where the condition of the life-tenancy is that the tenant shall not be impeachable for waste, the timber in either of such cases belongs to the tenant.

Lewis Bowles's Case, 11 Co. Rep. 79 b.

Lewis Bowles's Case.

11 Co. Rep. 79 b-84 a (Tudor's Lead. Cases (4th ed.) 86).

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Tenant for Life without Impeachment of Waste. Powers and Duties. Covenant to stand seised in consideration of an intended marriage to [79 b] the use of T. and A., his intended wife, for their lives, without impeachment of waste; and after their decease, to the use of the first issue male, and to the heirs male of such issue, lawfully begotten, and so over to the second, third, &c., issue male, remainder to the use of the heirs male of T. and A., and for want of such issue, to the use of B. and the heirs male of his body, remainder to the heirs of the body of T. and A. The marriage took place; T. died, leaving issue by A., J., who afterwards died. Resolved 1. T. and A. were seised of an estate tail executed sub modo, viz. until the birth of issue male; and then by operation of law, the estates are divided, viz. T. and A. become tenants for their lives, the remainder to the issue male in tail, the remainder to the heirs male of T. and A., &c. 2. Tenant in tail, after possibility of issue extinct, shall not be punished for waste. Shall not be compelled to attorn. Shall not have aid. On alienation no consimili casu lies. After death there can be no intrusion. Such tenant may join the mise on the mere right. Shall not name herself, nor be named tenant for life. Such tenant has but an estate for life, and a feoffment in fee is a forfeiture. An exchange between her and tenant for life is good. 3. The estate of tenant in tail after possibility ought to be a remnant and residue of an estate tail, and cannot be by the limitation of the party. A tenancy in tail after possibility will not merge a prior estate for life. 4. A., although but tenant for life, shall have the privilege of tenant in tail after possibility, for the inheritance that was once in her. 5. If tenant for life or years fells timber, or pulls down the house, the lessor shall have the timber.

If a house falls down per vim venti, the particular tenants have a special property in the timber to rebuild the house.

*The

6. The pre-eminence and privilege which the law gives to houses. 7. Tenant for life without impeachment of waste, has as great power to do waste, and to convert it, at his own pleasure, as tenant in tail has. privilege is annexed to the privity of estate; if one who has a particular estate without impeachment of waste, changes his estate, he loses his advantage.*

8. When timber trees are severed from the inheritance, either by act of the party, or of the law, and become chattels, the whole property of them is in the tenant for life without impeachment of waste.

Lewis Bowles, Esq., brought an action upon the case upon trover, against Haseldine Bury the younger (which began in the King's Bench, Hil. 10 Jacobi Regis, Rot. 1319) and declared, that he was possessed of thirty cart-loads of timber, and lost them, and that they came into the hands of the defendant, and

Lewis Bowles's Case, 11 Co. Rep. 79 b, 80 a.

that he 20 Feb. anno 9 Jac. Regis, at Norton, in the county of Hertford, converted them to his own use; and upon not guilty pleaded, the jury gave a special verdict to this effect. Thomas Bowles, Esq., grandfather of the said Lewis, was seised of the manor of Norton-Bury, in the said county in fee, and, 1 Sept. anno 12, by indenture, betwixt him on the one part, and William Hide and Leonard Hide of the other part, in consideration of a marriage to be had betwixt the said Thomas Bowles and Anne, daughter of the said William Hide, &c. covenanted, that after the said marriage had and solemnised, that the said Thomas, his heirs and assigns, would stand seised of the said manor of NortonBury, to the use of the said Thomas and Anne, for the term of their lives, without impeachment of waste, and after their deceases, to the use of their first issue male, and to the heirs male of such issue lawfully begotten, and so over to the second, third, and fourth issue male, &c., and for want of such issue, to the use of the heirs males of the body of the said Thomas and Anne lawfully begotten; and for want of such issue, to the use of Thomas Bowles, son and heir apparent of Thomas Bowles the grandfather, and the heirs males of his body issuing, and for want of such issue, to the use of the heirs of the body of the said Thomas and Anne lawfully issuing. Which marriage was solemnised accord

ingly, and the said Thomas the grandfather, and Anne, [* 80 a] had issue John; and afterwards the said Thomas the

grandfather died without any issue on the body of Anne, but the said John; after whose death the said Anne entered into the said manor, and was thereof seised, with the said remainder over, as aforesaid, and afterwards the said John Bowles died, and afterwards Thomas the son conveyed by fine his remainder to the use of Lewis Bowles the plaintiff, and Diana his wife, and the heirs males of his body; and the said Anne being so seised of the said manor, with the remainder over as aforesaid, viz., 20 Feb. anno Reg. Jac. reg. 9, a barn, parcel of the saidman or per vim ventorum et tempestať penitus subvers. et ad terram deject' fuit, and that the said thirty cart-loads of timber, in the declaration mentioned, were parcel of the said barn, and that the said timber was sound and fit for building, wherefore the defendant, as servant of the said Anne, and by her command took the said timber, and carried it out of the limits of the said manor to Radial, in the same county; and afterwards the said Anne, 24 Feb. anno 9 Jac.

Lewis Bowles's Case, 11 Co. Rep. 80 a, 80 b.

Reg. made her last will, and thereof made Robert Osborne and Leon. Hide, Knts., her executors, and died, after whose death the plaintiff seized the said timber, and afterward the defendant, by the command of the said executors, converted it to his use; and if upon the whole matter the defendant was guilty or not, the jury prayed the opinion of the Court.

And in this case two questions were moved. 1. If upon the whole matter the wife should be tenant in tail after possibility, or that she should have the privilege of a tenant in tail after possibility, sc. to do waste, &c. 2. Admitting that she should not have the privilege, &c., if the clause of "without impeachment of waste," shall give her property in the timber so blown down by the wind.

And in this case eight points were resolved by the whole Court. 1. That till issue, Thomas the grandfather and Anne were seised of an estate tail executed sub modo, sc. until the birth of the issue male, and then by the operation of law the estates are divided, sc. Thomas and Anne become tenants for their lives, the remainder to the issue male in tail, the reversion to the heirs males of Thomas and Anne, the remainder over as aforesaid; for the estate for their lives is not absolutely merged, but (exists) with this implied limitation until they have issue male. Vide Chudleigh's Case, in the first part of my reports, fol. 120, and Archer's Case, fol. 66 b.

2. That tenant in tail, after possibility, has a greater pre-eminence and privilege, in respect of the quality of his estate, than tenant for life, but he has not a greater quantity of estate than tenant for life; in respect of the quality of his estate, it tastes much of the quality of an estate in tail, out of which it is derived: and, therefore, 1. She shall not be punished for waste. 2. She shall not be compelled to attorn. 3. She shall not have

*aid. 4. On her alienation no consimili casu lies. 5. [* 80 b] After her death no writ of intrusion lies. 6. She may join the mise in a writ of right in a special manner, temp. Edw. I. Wast. 125; 39 Edw. III. 16 a, b; 31 Edw. III. Aid. 35; 43 Edw. III. 1 a; 45 Edw. III. 22; 46 Edw. III. 13 a, 27; 11 Hen. IV. 15 a; 7 Hen. IV. 10 b; 2 Hen. IV. 17 b; 42 Edw. III. 22; 3 Edw. IV. 11 a; 21 Hen. VI. 56; 10 Hen. VI. 1 b; 13 Edw. II. Entre Congeable, 56; 28 Edw. III. 96 b; 26 Hen. VI. Aid. 77; F. N. B. 203. 7. In an action brought by her, she shall not name herself

Lewis Bowles's Case, 11 Co. Rep. 80 b, 81 a.

tenant for life, 18 Edw. III. 27 a, a woman brought a Cui in vita, quod clamat tenere ad vitam, and maintained it in her count by a gift in special tail to her and her husband, and that her husband is dead without issue, and the writ for variance of the title abated. 8. In an action brought against her, she shall not be named tenant for life, sc. quod tenet ad terminum vitæ. Mich. 39 & 40 Eliz. Rot. 3316, in Communi Banco inter Veal et alios quer' et Read def' in quid juris clamat, and the note of the fine supposed that the defendant tenet ad terminum vitæ, the defendant demanded oyer of the writ, and of the note of the fine, and had it, and pleaded that he was seised in fee, absque hoc quod, the day of the note levied tenuit pro termino vita, and the jury found that he held as tenant in tail after possibility of issue extinct; and it was adjudged pro defendente; for tenant in tail, after possibility, shall not be in judgment of law included in a writ or fine, &c., within the general allegation of a tenant for life. Vide 19 Edw. III. 1 b.

But as to the quantity, he has but an estate for life; and therefore, if he makes a feoffment in fee, it is a forfeiture of his estate, 13 Edw. II. Entre Cong. 56; 45 Edw. III. 22; 21 Edw. III. 96 b; 27 Ass. 60; F. N. B. 159. So if fee or tail general descends or remains to tenant in tail after possibility, &c., the fee or estate tail is executed, 32 Edw. III. Age, 55; 50 Edw. III. 4; 9 Edw. IV. 17 b. And by the statute of Will. II. he in reversion shall be received upon his default, 2 Edw. II. Resceit, 147; 41 Edw. III. 12; 20 Edw. III. Resceit; 38 Edw. III. 33; vide 28 Edw. III. 96 b; 39 Edw. III. 16 a, b. And an exchange betwixt tenant for life and tenant in tail, after possibility, is good; for their estates are equal.

3. It was resolved, that the estate of a tenant in tail, after possibility, ought to be a remnant and residue of an estate tail, and that by the act of God, and not by the limitation of the party dispositione legis, and not ex provisione hominis; and therefore if a man makes a gift in tail upon condition, that if he does such an act, that he shall have but for life, he is not tenant in tail after possibility of issue extinct, for that is ex provisione hominis, and not ex dispositione legis; but it ought to be the remnant and residue of an estate tail, and that by the act of God and the law, sc. by the death of one donee without issue, Lit. 6 b, Doct. [* 81 a] and Stud. lib. 2, cap. 1, fol. 61. *2 Hen. IV. 17 b; 26 Hen. VI. Aid. 77.