the standing crops. It is true, the statute 11 G. 2. c. 19. does not expressly enable the grantee of a rent-charge to make such a distress; but the deed from Taylor expressly empowers Hodgson to distrain and dispose of his distress in the same way as a distress for a rent reserved upon a lease for years. It is not open, however, to the Plaintiff to take the objection in this form of action. If the standing crops were not proper objects of distress, he should have sued in trespass. Replevin only lies in respect of matters which may properly be the subject of distress, but the right to distrain which in the particular instance is contested, Bac. Abr. Replevin, F. Co. Litt. 145 b. At all events, the cognizance is divisible, and the Defendant may have judgment for the part properly taken. Preston contrà. A sufficient interest passed to Fletcher under the deed of May 7. 1806, to preclude Taylor from granting a subsequent right of distress as against any but himself, and those claiming under him. Great inconvenience and confusion will ensue, if terms which are universally granted as a security for money lent shall be held insufficient for that purpose unless accompanied with the ceremony of actual entry; a relic of feudal usages incompatible with modern habits of business, and not required for any useful purpose. The lessee, before entry, has title sufficient to exclude any subsequent claimant. And though he cannot recover in ejectment and trespass for mesne profits (a), he is subject to all the liabilities of his contract. At all events, by way of bargain and sale, the deed of May 7. 1806 conferred complete title on Fletcher; for it is not for Hodgson, a subsequent grantee, to elect for Fletcher whether his deed shall operate under the statute of uses (a) See Bac. Abr. Leases (M). 1831. MILLER V. GREEN. 1831. MILLER ย. GREEN. or at common law: it must be taken to operate in the way which will most certainly effect the intention of the grantor. If so, the subsequent grant to Hodgson could only operate against Taylor, and those claiming under him, by way of estoppel; and it is for the Defendant to shew that the Plaintiff is affected by that estoppel. The deed to Fletcher is prima facie an answer to the cognizance; and it was for the Defendant to reply an estoppel if he could, not for the Plaintiff to shew in the first instance that he was not estopped. At all events the Defendant could not distrain the standing crops; for though the deed to Hodgson enables him to dispose of the distress, as a distress for rent reserved upon a lease for years, it does not authorize him to distrain otherwise than as a grantee of a rent-charge. The Court requested that an application might be made to the Court of King's Bench to amend the record, by inserting an averment that Fletcher entered by virtue of the demise; which application having been made and rejected, the judgment of the Court was now delivered by : TINDAL C. J. This was an action of replevin for taking certain goods and certain standing crops of Green, the Plaintiff below, in which action Miller, the Defendant below, made cognizance as bailiff of one William Hodgson and in his first cognizance, which differs from the second only in deducing the title of George Taylor from the owner of the fee, stated, that the said George Taylor, being seised for life, by an indenture dated the 25th of September 1806, granted to the said Hodgson an annuity of 1667. 2s. out of the premises in which, &c. for the term of ninety-nine years, if Taylor should so long live, payable in the manner therein mentioned; with a clause, a clause, that if the same should be in arrear for twentyone days, it should be lawful for Hodgson to enter on the said premises and distrain for the arrears, "and the distresses there found to detain, manage, sell, and dispose of in the same manner in all respects as distresses for rents reserved upon leases for years might, were, and ought to be detained, managed, sold, and disposed of, and as if the said annuity was a rent reserved upon a lease for years." The cognizance then stated that arrears of the said annuity for three years and a half, viz. the sum of 5397. 10s., had become due from Taylor, and had continued so due for more than twenty-one days; and justified the taking and detaining the goods as a distress for such arrears. To this cognizance the Plaintiff below pleads in bar, that before the making of the indenture stated in the cognizance, viz. on the 7th of May 1806, the said George Taylor being seised for the term of life, by another indenture then made between himself of the first part, the persons therein mentioned of the second part, one Jackson Walton of the third part, and one Fletcher of the fourth part, in consideration of the sum of 3000l. to Taylor, paid by Jackson Walton, granted to the said Walton an annuity of 4137. 12s. out of the said premises in which, &c. for ninety-nine years, if Taylor should so long live. And for the better securing the said annuity, for the considerations in the said indenture mentioned, and of 10s. paid to Taylor by Fletcher, the said Taylor granted, bargained, sold, and demised to the said Fletcher the said premises in which, &c. for ninety-nine years, if the said Taylor should so long live, upon trust that as often as the said last-mentioned annuity of 4137. 12s., or any quarterly payment thereof, should be in arrear for thirty days, Fletcher should, out of the rents and profits of the said premises, or by mortgage, in case there should not be sufficient distresses, or by making entries, levy such arrears and damages. H 4 The 1831. MILLER V. GREEN. 1831. MILLER V. GREEN. The plea in bar then proceeds to allege, that the said indenture," and the term of ninety-nine years thereby granted, were in full force and effect;" and that, upwards of thirty days before the making of the distress, there was due and owing, by virtue of the said indenture of the 7th of May, the sum of 2000l. for arrears of the said annuity. A similar plea in bar was pleaded to the second cog. nizance. To these pleas in bar there was a general demurrer and joinder. And, after argument, the Court of King's Bench gave judgment for the Plaintiff below for his damages and costs. Upon this judgment a writ of error has been brought; and after argument, and time taken to consider, the Court of error is of opinion that the judgment of the Court below ought to be reversed. The argument in this case has turned upon the legal operation and effect of the demise from Taylor to Fletcher, contained in the indenture of the 7th of May 1806. For, if such demise created a legal estate in Fletcher, the grant of the annuity by Taylor to Hodgson by the subsequent deed of the 25th of September 1806, but during the continuance of Fletcher's interest, must be altogether inoperative in creating any charge upon the premises. Now, in order to give an estate to Fletcher, it is contended by the Plaintiff below, that the grant must either be considered as a demise at common law, or as a bargain and sale made upon a consideration of money, and operating under the statute of uses; in either of which cases the estate vests in Fletcher, the grantee. The The first question, therefore, is, whether the grant can be considered as a lease at common law. objection taken to it as a lease at common law is this, that it does not appear upon the pleadings that Fletcher the lessee, or any person claiming under him, entered after - after the lease was granted, and that unless there is an entry by the lessee, or some one claiming under him, no estate vests in him. And such we consider to be the effect of the authorities. It is laid down in Co. Litt. 46 b., "That to many purposes the lessee is not tenant until he enters, as a release made to him is not good to him to increase his estate before entry, neither can the lessor grant away the reversion by the name of the reversion before entry." Now both these consequences depend upon the assumption that the estate has not passed out of the lessor into the lessee, before he has by his entry accepted such estate; for, if the estate had actually passed to and vested in him, there can be no reason why a release would not increase such estate, nor, again, why the reversion should not pass by that name. And in further support of the distinction, Lord Coke goes on to say, "but the lessee before entry hath an interest, interesse termini, grantable to another;" thus putting in contradistinction the interest and the estate of the lessee. And again Littleton, s. 459., lays down the same doctrine more pointedly. "If the lessor release to the lessee all his right, &c., before that the lessee had entered into the same land by force of the same lease, such release is void; for that the lessee had not possession in the land at the time of the release made, but only a right to have the same land by force of the lease." See also Bacon's Abridgment, tit. Leases, M., where the necessity of an entry by the lessee, in order that the estate may vest in him, is put upon the ground that it is an acceptance by him of the Under these authorities, therefore, we think that, as the Plaintiff neither alleged an entry by Fletcher under the lease, nor shews any privity between his possession and Fletcher's term, nor any thing equivalent to an entry, such as an acceptance of the estate by the execution of the lease, no estate passed to Fletcher estate. under 1831. MILLER บ. GREEN. |