CORRESPONDENCE.

Littleton's Tenures—Doctrine of Remitter.

GENTLEMEN,—In reading your excellent edition of Littleton's Tenures, I have encountered the following difficulty, which perhaps you will do me the favour of elucidating. Littleton says, sect. 664, If tenant in tail enfeoff his heir apparent, the heir being of full age at the time of the feoffment and after tenant in tail dieth, this is no remitter to the heir, because it was his folly that being of full age he would take such feoffment. But such folly cannot be adjudged in the heir being within age at the time of the feoffment." In accordance with the doctrine you say (note to sect. 659, p. 114), "there is no remitter where he who comes to the defeasible estate comes to it by his own act or his own assent whilst under no disability. Hence the defeasible estate, to entitle the party to be remitted, must be made to him during infancy or coverture, or must come to him by descent or act of law." So far everything is perfectly intelligible, but a little further on, you say (p. 115), that the case of Doe dem. Daniel v. Woodroffe decided that a person entering under an instrument which operates under the Statute of Uses, or a deed to which he is a consenting party, is, nevertheless, capable of being remitted to any more ancient title that he may have." The sentence in italics appears to me directly contradictory of the two former quotations. Am I to understand, that at the present day there is no remitter, where the person taking the defeasible estate takes it under a deed to which he, whilst under no disability was a consenting party, or that in such case he would still be remitted to his older and better title? If the former be the case it would seem that sect. 664, of Littleton has been overruled, and is not now law, and that your first assertion is erroneous; if the latter, then Doe dem. Daniel v. Woodroffe, (or your statement of it) is incorrect.

In Sheppard's Touchstone, p. 156 (6th edit. by Hilliard), it is said that "if tenant in tail make a feoffment in fee on condition, and dieth, and the issue in tail within age doth enter for the condition broken, in this case he shall be in first as tenant in fee simple, and heir to his father, and then shall be presently remitted; but if he shall be of full age he shall not be remitted;" and the reason given for the latter proposition in a note subjoined to this passage is, because he might have had his formed on against the feoffee, and the entry for the condition is his own act," thus countenancing Littleton's doctrine, that a person taking the defeasible estate by his own act or assent is not remitted. See also, Co. Litt. 202, b, and 347, b.

The only difficulty, then, consists in Doe dem. Daniel v. Woodroffe, as stated by you at p. 115, and as to this I may mention that I have very carefully perused both the Law Journal report, and that by Meeson and Welsby of this case when before the Court of Exchequer, and the abridgment contained in the Law Journal Digest for 1845-50 of the same case when before the House of Lords on appeal; but can discover nothing to warrant your deduction from it; and, indeed, in that case the party remitted, so far from obtaining the lesser estate by his own act or assent, derived his title to it under a will. Lord Cranworth (then Rolfe, B.) certainly said, that "where a party in possession of land under a defeasible title acquires a right to assert an older and better title, not by action, but by entry" (or as Littleton has it, sect. 693, where his entry under the defeasible title is congeable), "then, the circumstance of his having acquired the possession by his own voluntary act, will not prevent the application of the doctrine of remitter" (10 Mee. and Wels. 633a, S. C. 12 Law Journ. N.S. Exch. 159); but this is obviously a very different thing to the case of a person acquiring the defeasible estate itself by a deed to which he is a consenting party; and Littleton expressly excepts the case of such estate being taken by deed indented, in which case he says there is no remitter (sect. 693). It is to be observed, also, that in the instance cited from Shep. Touch., the son's entry was not congeable, for the feoffment, having then a tortious operation, worked a discontinuance, and the son had no right of entry under the entail, but a right of action only. It is, however, only fair to observe that I have not been able to obtain a perusal of Doe dem Daniel v. Woodroffe, as reported in the Jurist and House of Lords Cases, and it is just possible that some facts may there appear which are not set out in either the Law Journal or Meeson nd Welsby, though this seems extremely improbable. I remain, &c., LUCAS CORDES.

The Woodlands, near Newport, 13th April, 1854. P.S.-We are obliged to Mr. Cordes for the above communication, and intend to give our views on the matters referred to; but we shall be glad in the mean time to have the opinion of any other gentlemen who have given, or may be willing to give, their attention to the case of Daniel v. Woodroffe.-EDS

Littleton's Tenures-Half-blood-Descent.

ques

GENTLEMEN, Having been much puzzled by the two last tions in sec. 8, p. 126, of "Littleton's Tenures," now publishing by you, I shall feel obliged if you will inform me whether the following is a correct solution of them.

In the first place I take the pedigree to be thus: A man by his first wife has a daughter and a son (say John), and by his second

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wife a son (say Henry) only; and as seisin, &c., is mentioned, I suppose the question relates to the law as it stood previous to the passing of 3 & 4 Wm. 4, c. 106.

This being the case, I think the father having purchased an estate in fee, upon his death it would go to his eldest son (John), and that, upon John's decease, without issue, his brother Henry would take, and not his sister; for, although John by entry, &c., made himself the root of descent, his sister could not take as his heir, for "whoever would make himself heir to the person last seised must show himself heir to his real or supposed ancestor." A father cannot be of half-blood to his children, therefore I am of opinion that upon the death of John his brother Henry, and not his sister, took, for, the estate going in the male line, his sister, although she was heir to her brother John, could not make herself heir to his ancestor; but I think that John might have prevented his half-brother from inheriting previously to his sister by deed limiting the fee to his heirs female.-I am, &c.,

A SUBSCRIBER TO THE LAW STUDENTS' LIBRARY. NOTE. We have received several communications respecting some points arising out of Littleton's Tenures, and we are glad to find that the method of editing that work is approved, and that the object of it (as of the other works), viz., to excite the curiosity and keep alive the attention of the student, has in some degree been obtained. It is not often that law books have the effect of interesting the readers thereof, and, therefore, we take it as a favourable sign that some of our subscribers have been interested with the "Tenures," and the questions given thereon. Among others received is the above communication, which we insert, as it may be useful to our readers. The questions referred to by our correspondent we may mention for the benefit of those of our readers who may not have the work, are the following: "There are two half-brothers; their father purchases lands, and dies; one brother obtains seisin, and dies without issue, but leaving a sister; who is his heir? Could the brother who was seised, by any and what means, prevent the halfbrother from inheriting previously to his sister? (see notes to sects. 4, 12)." We have to observe, in the first place, that the supposition of our correspondent that because seisin was mentioned, the questions must necessarily relate to the old law, is not well grounded. For we expressly stated in a previous number, when noticing the plan of editing the works, and of framing the questions, our object was to keep the student on the watch, and to exercise his faculties, and for these purposes we have frequently put the questions in such a way as to require consideration before they are answered. The statements in the first of the questions referred to, to the effect that there are two half-brothers, and that their father purchases lands

might have sufficed to show the reader that the question was intended to apply to the new law of descents. Under the old law it would not have mattered whether the father purchased or not, for the seisin of the son would have made him the root or stock of descent, but under the new law the fact of the father being a purchaser is of great importance; for the descent is to be traced from him notwithstanding his son's seisin. We mentioned the seisin to give the student a more forcible idea of the new rule of law, and of its contrast with the old doctrine. On the death of the son who obtained seisin, without issue, notwithstanding such seisin, the brother would take the land and not the sister; for the descent is to be traced not from the party last dying seised, but from the purchaser, which in our case is the father. Still there are acts by which the son whilst seised might have given his sister of the whole blood a priority over his half-brother, but these could, of course, only be by making him the stock or root of descent, in the manner pointed out in the notes to sects. 4 and 12.

Our correspondent, assuming that we meant to speak of the old law, gives his opinion that, on the death of the brother seised, his brother of the half-blood would be preferred to the sister of the whole blood, but this is in express contradiction to the well-estatablished maxim which uniformly prevailed prior to the New Inheritance Act, that possessio fratris de feodo simplici fecit sororem esse hæredem. Our correspondent supposes the sister could not take because she could not show herself heir to her real or supposed ancestor. We are inclined to think that there is some ingenuity in this, as there certainly is novelty. Our correspondent means that as the living half-brother would, if the descent were to be traced from the ancestor (real or supposed), be heir to the estate, so he must take notwithstanding the seisin of the deceased half-brother. But he is mistaken in saying that the sister could not make herself heir to the ancestor in the lifetime of the half-brother: it was sufficient for her to show that she could by possibility be heir to the real or supposed ancestor, and then the existence of the halfbrother, who never could inherit to his deceased brother, would not be any impediment.

Our correspondent is also wrong in supposing that John could have prevented his half-brother from inheriting previously to his sister by limiting the fee by a deed to his heirs female; no such limitation could be made with any effect, for it is well established that a new mode of inheritance in fee simple cannot be created by a subject, and that, therefore, a limitation to a man and his heirs female (which is an estate unknown to the law) would be void (see Litt. s. 31; 2 Black. Com. 115; Noy's Max. p. 71, na, by Byth.; Co.

Litt. 27 a).

Littleton-Possession of Co tenants.

GENTLEMEN,-On reading your edition of Littleton, I find, at p. 81, a statement that by the 3 & 4 Will. 4., c. 27, s. 12, the possession of a co-parcener of more than his share of the property shall not be deemed to be the possession of the other co-parcener. Now I naturally concluded that this provision was confined to co-parceners, but on turning to the statute, I find it also applies to joint-tenants and tenants in common. I think you should mention this, lest others of your readers should be misled.-I am, &c.,

LECTOR.

NOTE. We beg to thank "Lector" for his communication, as we are desirous to make the works comprised in the "LIBRARY" as perfect as possible. We should mention that the note is appended to a section of Littleton, treating only of co-parceners, so that it was natural to confine the note to such. However, our readers had better note the omission, which will be supplied in the next work, viz., Coke's Comment. We may add that there was an earlier case than that of Culley v. Taylerson (mentioned p. 81 of Littleton), as to the retrospective effect of the provisions of sect. 12 of the Act, but it was only at Nisi Prius. The case is Doe dem. Holt v. Horrocks (1 Car. and Kirw. 566), and the judge (Mr. Just. Cresswell) there ruled that the statute operates to make the possession of tenants in common a separate possession from the time they first became tenants in common, and not merely from the time time of the passing of that statute. The same rule will of course apply to joint tenants and co-parceners. The decision in Culley v. Doe dem. Taylerson was, that one tenant in common who has been out of possession for twenty years prior to the Act, is barred by secs. 2 and 12 of the 3 & 4 Will. 4, c. 27, from bringing an ejectment.

GENTLEMEN,—I do not wish to appear as a complainant, but really I should have been glad if, instead of merely giving questions like those in italics in your Lib. Edition of Littleton, you had furnished the Answers also. I have felt great difficulty, in several instances in making out the correct answers, and should have been better satisfied to have had your answer in the book. You have told us that the Questions embrace every proposition in the text, and you might have added some matter not in the text, which, however, I do not consider an advantage; as an instance-I should like to know what is I meant by the italic portion of the following, at page 125: Can a maternal inheritance be turned to a paternal one in such a way?" (or vice versa, see Com. Dig. tit., Estates" A., citing Co. Litt. 13a). As I have neither Com. Dig. nor Coke's work, I am unable to say

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