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yearly tenancy. The legal effect of this agreement was to create a tenancy from year to year, with a proviso for determining that tenancy at an earlier period. Upon principle as well as upon authority, tlie legal estate was vested in the pauper, subject to being defeated. In the case of all defeasible estates, the legal estate passes in the first instance. A lease for twenty-one years is frequently made determinable at the expiration of seven or fourteen years; yet it is not the less a lease for twenty one years in law, though it may de defeated by matter ex post facto (a). So where the lease contains a proviso for cesser of the term, upon non payment of rent, or non performance of covenants. In Co. Lit. 42 a, (6), several cases are put of defeasible life estates. Lord Coke there says, “If a man grant an estate to a woman, dum sola fuerit, or durante riduitate, or quamdiu se bene gesserit, or to a man and a woman during coverture, or as long as the grantee dwell in such a house, or so long as he pay 401., &c., or until the grantee be promoted to a benefice, or for any like uncertain time; which time, as Bracton saith, is tempus indeterminatum. In all these cases, if it be of lands or
(a) So e converso in Birch v. this holding on must be taken to be Wright, 1 T. R. 380, Mr. J. Bul- an agreement to the original conler says, “if a tenant from year to tract and execution of it; and the year holds for four or five years, first contract was from year to year; either he or his landlord, at the 2ndly, the third year is not in the expiration of that time, may de. nature of a distinct interest, beclare on the demise as having been cause it arises from the same exemade for such a number of years. cutory contract, and therefore, the So it is expressly laid down by the lessor may distrain the third year Court in Legg v. Strudwick, Salk. for the rent of the second; and 414.” This dictum was cited and such an executory contract as this recognized by Gaselee, J., in Lip- is not void by the statute of frauds, pincott, Burt. v. Yard, Taunton though it be for more than three Spring Assizes, 1828. The words of
years, because there is hereby do Salkeld, however, are, et per cua term for above two years ever subriam, it was held, first, that after sisting at the same time; and there the two years, the lessor or lessée can be no fraud to a purchaser, might determine; but if the lessee for the utmost interest that can be held on, he was not then tenant at to bind him, can be only one year.” will, but for a year certain; for (6) 1 Tho. Co. Litt. 621.
tenements, the lessee hath in judgment of law an estate for life, determinable, if livery be made; and if it be of rents, advowsons, or any other thing that lies in grant, he hath a like estate for life by the delivery of the deed; and in court or pleading he shall allege the lease, and conclude, that by force thereof, he was seised, generally, for term of his life” (a).
Order of Sessions quashed (6). (a) And see Preston on Estates, fore Michaelmas term, ante 95, 405.
confirming the opinion then ro(6) His Lordship afterwards re- nounced, by a reference to the delivered the judgment of the above decision in Rer v. HerstCourt, in Rer v. Sandhurst, which had been given at the sittings be
The KING v. the INHABITANTS OF BRINGTON.
but was a
in which she
WO Justices, by their order, dated 20th May, 1826, re- The wife of moved “ Maria Chambers, the wife of Edward Chambers, a person who
was legally then a convict at Van Diemen’s Land, and their daughter, settled in A., Mary Elliott," from the parish of Brington to the parish transported of Badby, both in the county of Northampton; and the convict, went
to B., and resessions, on appeal, quashed the order, subject to the sided there opinion of this court, upon the following case.
upon an estate John Elliott, in consideration of a marriage intended was jointly in• between himself and Mary Thornton, by indentures of terested with
her sisters, lease and release and settlement, of the 6th and 7th Ja- under their
mother's marnuary, 1772, did grant and release a messuage in Little
riage settleBrington, and about 20 acres of land, to trustees, to ment:—Held,
that she was the uses therein mentioned, viz. to the use of himself residing upon till the marriage, remainder to himself for life, re- her own, and
irremovable. mainder to trustees to support contingent remainders, re- The sessions
having quashed an order of removal both as to such woman and a child who accompanied her :Held, that they thereby virtually declared the child to be within the age of nurture, and irremovable from the mother, and that the Court might presume the fact to be so.
mainder to the use of the said Mary Thornton for life, in
Holbech, in support of the order of Sessions. The only question in this case is, whether, under the circumstances stated, the pauper, Maria Chambers, was, or was not, by law removable. It may be assumed, for it will hardly be denied, that as one of the four surviving daughters, she had a legal estate in the house and land in Brington, under her mother's marriage settlement; and then it follows, that she was living upon her own at the time the order of removal was made, and was by law irremovable. Rer v. Aythrop Rooding (a) is decisive of the present case; for it was there held, that a married woman cannot be removed from the estate of her husband, as being likely to become chargeable ; and that was not so strong a case as the present; for there the husband having been legally settled at White Rooding, went away and left his wife; whereupon she went and lived, without her husband, in a copyhold tenement of her husband's own at Aythrop Rooding: here, the husband having been legally settled at Badby, left his wife, who went and lived, without her husband, upon property of her own at Brington. So, in Rer v. Marthy (6), it was held, that one who is resident on an estate granted to him for lives, in consideration of two guineas fine, and one shilling rent, cannot be removed therefrom, though actually chargeable. So, in Rer v. Houghton-le-Spring (e), a pauper having a freehold estate in A., in the occupation of a tenant to whom he had let it, was deemed to gain a settlement by residing thereon forty days, with the licence of his tenant, for the purpose of making some repairs ; such residence being considered as equivalent to a residence in any other part of the parish. This latter case is a decisive answer to any objection that may be raised to the nature and circumstances of the pauper's residence in this case. It may be admitted that she resided in the character of a visitor to her sister; but still she resided upon her own, from which she was irremovable, and that residence being for more than forty days, conferred upon her a settlement. (a) Burr. S. C. 412. (6) 5 Eas', 40. (c) 1 East, 247.
Dwarris and Humfrey, contrà. The pauper's husband was legally settled at Badby; so, therefore, was the pauper herself. But it is said, first, that she was irremovable from Brington; and secondly, that she acquired a settlement of her own in that parish. Without admitting either of those propositions, it is to be observed, that the one does not necessarily follow from the other; the pauper might be irremovable, without gaining a settlement; for, as was said by Davison, J., in Rex v. Aythrop Rooding, (a), “gaining a settlement, and being irremovable from a place, are not convertible terms.” Then, here, first, it is quite clear that the pauper could not acquire a settlement in Brington, because she was a married woman; and secondly, that she was removable, because she was not, in the fair sense of the word, residing upon an estate of her own. She had no estate whatever of her own in the house and land; her interest, whatever it might have been, had passed to her husband. [Bayley, J. The husband and wife were both seised in right of the wife. That is the utmost length your argument can go. It cannot be said that the husband was seised exclusively in right of his wife (6). The wife had herself a legal interest in the premises.] The wife had no power over the estate; she had no present interest in it, but merely an interest expectant on the death of her husband : and an expectant interest will not do. In Rer v. Eatrington (c), it was held, that if A., residing on a cottage of his own, grant it by lease and release to B. in fee, in consideration of 361., with a proviso “that A. shall live in, and occupy the said cottage, with the appurtenances, has heretofore done, for life,” B. takes only a remainder after an estate for life in A., and therefore has not such an interest during A.'s life, as will enable him to gain a settlement by a residence on the estate. That is an authority for saying
(v) Burr. S. C. 414.
Dougl. 314,(329); 1 Wms. Saund. (6) Catlin v. Milner, 2 Lutwyche, 235, n. 1422, 5; Polyblank v. Hawkins, (c) 4 T. R. 177.