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might be considered as one and the same'. And Lord Mansfield added, that this was the principa! reason which the court went upon in Selwyn v. Selwyn”, for, said his Lordship, after stating some other reasons of the judgment, the great and manly ground upon which the court went in that case was that the deed, recovery, and all the whole transaction was to be considered as one conveyance.
The substance of the case of Selwyn o. Selwyn was this: A father, tenant for life, and son, remainder man in tail, executed a bargain and sale, which was duly enrolled, whereby they conveyed the entailed lands to a third person, to make him a tenant to the præcipe for suffering a recovery, the uses of which recovery were declared to be to the father for life, remainder to the son in fee, and after the writ of entry was sued out; but before it was returned the son made a will, whereby he devised the same lands to the father in fee, and died after the recovery was completed without revoking or altering his will.
And the following question was proposed by the Chancellor to K. B.“ Whether the lands of which this recovery was suffered passed by the will?” The court gave no reasons for their opinion, agreeably to the usage upon cases referred out of chancery; but, according to Sir James Burrow, they repeatedly expressed their approbation
1 Blackst. Rep. 605, Røe 4. Norden o. Griffiths,
D 2 Burr. 1135.
of the case of Ferrers and Curzon v. Fermor and others, and therefore it is likely, says the reporter, (who was confirmed by Lord Mansfield afterwards, as appears by the case above-mentioned of Norden v. Griffiths) that they considered the whole as one conveyance, which must relate to the date of the bargain and sale, which was perfected, made absolute, and delivered from objections by the subsequent ceremonies (9).
(9) A writer of great knowledge in his branch of the profession, in page 149 of his treatise on conveyancing, has observed, that until seisin no uses can arise under the recovery, and that consequently until there is seisin in the demandant as the means of supplying the seisin to uses, the person claiming under the uses has no legal estate which will admit of an alienation by deed, but he has an inchoate interest which will allow of his devising his interest by will. The true ground, continues this writer of Selwyn o. Selwyn, is that even before the recovery was suffered, the testator had in hin a title to a future use, which
gave power of testamentary
alienation, and his will operated upon this use in its fiduciary state, and also on the estate itself, when the use was executed into the estate. He goes on to say that another ground of that case, and the ground to which it is more generally ascribed is, that the recovery and the recovery deed formed one as
Possibly, however, this writer, as he makes no mention, might not have been aware, of the above cited case of Norden v. Griffiths, wherein Lord Mansfield, who presided on the bench in Selwyn v. Selwyn, declares, most emphatically, that the true ground upon which the decision in that case went was that which this genkleman seems not to admit to have had much share in producing it, piz. that the indentures, recovery, and the whole transaction was to be considered as one conveyance. Indeed the other supposed ground
The case in Cro. Jac.? referred to and approved in Selwyn v. Selwyn, was in effect as follows: A lessor covenanted with his lessee for years, that a bargain and sale should be made, and a fine levied to the lessee and his heirs, to the use of him and his heirs, to the intent that a common recovery might be suffered against the conusce, with voucher of the lessor, who should vouch over the common vouchee to the use of A. B. and his heirs, who, after the bargain and sale, fine and recovery perfected, brought an action against the lessee for rent arrear, and the question was whether the lease was extinguished and destroyed by the deed fine and recovery? It was agreed, that if a fine or feoffment be made to a lessee for years, to the use of a stranger, it would not extinguish the term (10), for it was saved by the statute of uses, which executed the use, and saved all rights, estates, and interests; but as in this case the bargain and sale was made and the fine levied to the
seems very refined and fanciful, and stands but ill with the subsequent cases on the doctrine of revocation.
(10) If at the common law, before the statute of uses, a termor took a conveyanee of the premises in lease to him, to himself and his heirs, to the use of another, his own term was saved to him in equity, And observe that the legislature did not, by the statute of 27 H. 8, design to prejudice any rights or estates, but to preserve them, so that the operation of the statute would be at once to execute the use as to the reversionary interest, and to prevent the merger of the interma diate estate. See the case in Cro. Jac. 643.
lessee, to the intent that a recovery might be suffered, whereby certainly the term was drowned and extinguished for a time, until the recovery was suffered, (since during that interval, no use being raised, the saving in the statute of uses did not apply to the case,) whether the lease should be revived and recontinued by the recovery which raised the use, and so let in the statute, was the doubt? And the court resolved that it should be revived, for the bargain and sale, and fine and recovery, were all but one assurance, and the recovery being suffered, which was grounded upon the covenant, was quasi a conveyance to the use ab initio (11).
(11) Of a similar opinion, in respect to the relation in these compound conveyances to the first fundamental act, so as to carry back the title to the date of the leading instrument, were the two Judges, Croke and Montague, in the case of Havergill v. Hare, Cro. Jac. 510. The case as to this point was as follows: William Parker being seised in fee of lands, on the 31st October, 8 Jac. 1, by indenture inrolled, granted a rent of 20l. per annum to Isaac Warden, payable at Michaelmas and the Annunciation, with clause of distress; and by the same indenture covenanted to levy a fine of the same bands to the uses following, viz. that if it should happen that the said yearly rent of 201. should be in arrear, and no sufficient distress upon the premises, or if any rescous, poundbreach, or replevin should be made, that then it should be lawful for the said I. Warden to re-enter and enjoy, till satisfied, out of the rents. On the 12th June, 9 Jac. I. Warden sold and conveyed the rent to William Fisher, the lessor of the plaintiff, with all penalties, forfeitures, &c.
On the i9th October, 11 Jac. the rent due at Michaelmas was in arrear, and was demanded by Fisher, but not paid. In the Trinity Term succeeding a fine was levied to Fisher, to the uses specified in the firet indenture of covenant above mentioned. Fisher afterwards
I SHALL now pass to the consideration of mortgages, securities for money, and conveyances to pay
distrained for the half-year's rent of 101. due at Michaelmas, 11 Jac. and the tenant of the land replevied; whereupon Fisher entered under the uses of the fine. And one of the questions in this case was, whether, as this rent of 101. was due, and demanded before the fine levied, (at which time no use could arise upon
nonpayment) and then after the fine levied a distress was taken for the rent due before the fine was levied, and afterwards replevin was sued thereupon, a title of entry accrued by way of use to William Fisher? and on this point the Justices were divided, for Haughton and Doderidge held, that as the rent '
was due before the fine levied, the use upon the fine could not be extended to the rent formerly in arrear. But Croke and Montague held, that the fine levied and the first indenture were but one assurance, for the execution of all things executory respect the original act, and shall have relation thereto, and all make but one act, although done at several times. This point, however, cannot be regarded as perfectly decided, and see Vin. tit. Dev. (0) pl. 3, Jones 7, pl. 7, Mitton v. Lutwitch, and Salk. 341, Lloyd v. Lord Say and Sele, but see S. C. with the observation in 3 P. Wms. 170, in the note to the first edition. It appears from what has been decided and held in courts both of law and equity, in the great case of Good. title v. Otway, that where articles are made providing for a reversionary interest in the covenantor, and then the covenantor by will disposes of such reversionary interest, and then makes a settlement whereby his whole legal estate is conveyed to uses correspondent to the articles, the will is not saved by any relation of the settlement to the articles