DOE, on the demise of ROBERT WERE, WILLIAM WERE, and SAMUEL WERE, v. Cole. "demised, granted, assigned, transferred, set over, directed, limited, and appointed," EJECTMENT for the recovery of the moiety or half-part A. by deed, undivided of certain lands and premises situate in the leased, parishes of Loddiswell and Churston, in the county of Devon. At the trial before Gaselee, J., at the Devonshire summer assizes, 1826, the plaintiff obtained a verdict, with liberty to the defendant to move to enter a nonsuit; and in the following term, that motion having been made, the Court directed the facts to be stated for their opinion in the following case. to B. the moiety of certain lands then "in the possession of C," habendum life of A. in trust for sale. No livery of seisin was indorsed or made. The lessors of the plaintiff made title under a certain 4. and of deed of conveyance from one Walter Prideaux; so much of to B, during the which as is material to the question in issue, is as follows: This indenture, made 12th March, 1816, between Walter Prideaux, the younger, of the one part, and Robert Were, William Were, and Samuel Were, (trustees named in and by the last will and testament of Elizabeth Were, widow, deceased, for and on behalf of Sarah the wife of the said Walter Prideaux), of the other part. Whereas, upon an account stated and settled between the said W. P. and the said R. W., W. W., and S. W., as such trustees as aforesaid, it appears that there was due and owing from the said W. P. to the said R. W., W. W., and S. W., on the 1st January last, the sum of 30007. and upwards; and the said R. W., W. W., and S. W., have called upon the said W. P. to give them security for the repayment of the said sum of 30001. and upwards, which he the said W. P. hath consented and agreed to do in the following manner, (that is to say), by demising and assigning the premises hereinafter demised and assigned, upon the trusts, and in manner hereinafter mentioned, as a security for 3000l. part thereof, was, at the date of the deed, tenant from year to year to A., of part of the lands-Held: that an estate for the life of A. passed to entitled to re cover in eject ment against C. 1827. DoE d. WERE, v. COLE. and by giving his bond to the said R. W., W. W., and S. W., for the remaining balance: Now, this indenture witnesseth, that in pursuance of the said agreement, and also in consideration of 5s. to him the said W. P. in hand paid by the said R. W., W. W., and S. W., at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, he the said W. P. hath demised, leased, granted, assigned, transferred and set over, directed, limited, and appointed, and by these presents doth demise, &c., unto the said R. W., W. W., and S. W., their executors, administrators, and assigns, all that moiety or half-part of and in all that messuage, tenement, or dwelling-house, with the courtlage and garden behind the same, situate, lying, and being in the town of Kingsbridge, &c., and all ways, paths, passages, waters, water-courses, easements, profits, advantages, and appurtenances whatsoever, to the said premises belonging, or in any wise appertaining, and which said premises are now in the tenure or occupation of the said W. P.; and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part thereof. And also all that the moiety or half-part undivided of and in all that capital messuage, Barton Farm, and demesne lands, called and known, &c., situate, lying, and being in the parishes of Loddiswell and Churston, in the county of Devon, and which said last-mentioned premises were heretofore in the possession of one A. K., and of the said W. P., and are now in the possession of the said W. P. and of Samuel Cole. And also all that the moiety or half-part undivided of and in all that messuage or tenement and mill, called Knapp Mill, with the appurtenances, situate, lying, and being in the parish of Loddiswell aforesaid, now in the possession of J. S. And also all that the moiety or half-part undivided of and in all that barn and linhay, and all those fields or closes of land called Long Parks, and situate, lying, and being in the parish of Loddiswell aforesaid, now also in the possession of J. S. And all houses, outhouses, edifices, buildings, gardens, orchards, lands, mea 1827. บ. COLE. dows, woods, underwoods, ways, paths, passages, waters, water-courses, fishings, fishing-places, easements, profits, CoE d. WERE advantages, emoluments, hereditaments, and appurtenances whatsoever, to the said several moieties belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, suits and services thereof; and of every part thereof, and all the estate, right, title, interest, term and terms of years, use, trust, property, claim and demand whatsoever, of him the said W. P., his heirs or assigns, either in law or equity, of, into, or out of the same, or any part thereof. To have and to hold the said moiety or half part of the said messuage, tenement, or dwellinghouse, in Kingsbridge, with the appurtenances, unto the said R. W., W. W., and S. W., their executors, administrators, and assigns, from the day of the date of these presents, for and during and unto the full end and term of 2000 years thence next ensuing, and fully to be complete and ended. Yielding and paying therefore yearly, and every year during the said term, unto the said W. P., his heirs or assigns, the rent of one pepper-corn, if the same shall be lawfully demanded. And to have and to hold all and singular the several moieties or half parts hereby demised and assigned, or mentioned, or intended so to be, situate, lying, and being in the several parishes of Loddiswell and Churston, with their, and each and every of their several respective rights, members, and appurtenances, unto the said R. W., W. W., and S. W., their executors, administrators, and assigns, from the day of the date hereof, for and during the natural life of the said W. P., without impeachment of any manner of waste. or for The trusts as to all the aforesaid premises were declared to be for sale, when and as soon as the said R. W., W. W., and S. W., should think proper; and there were covenants by the said W. P., that he had full power to convey the same "for the terms, in manner and form and upon the trusts aforesaid ;" and also that it should and might be lawful to and for the said R. W., W. W., and 1827. DOE d. WERE บ. COLE. S. W., their heirs, executors, administrators, and assigns, from time to time and at all times during the several estates and terms thereby granted, demised and assigned, peaceably and quietly to enter in and upon, have, hold, use, occupy, possess and enjoy, all and singular the premises thereby granted, demised and assigned, or mentioned or intended so to be, and to receive and take the rents, issues, and profits thereof, and of every part thereof. This indenture was duly executed by the said W. P., at the time of its date. No livery of seisin was indorsed upon it, and no evidence was offered that any had in fact been made. The defendant, Samuel Cole, before and at the time of the execution of this indenture, was tenant from year to year to the said W. P., of part of the lands and premises comprised in the deed, and therein described as being situate in the parishes of Loddiswell and Churston. Since the execution of this indenture, that is to say, in October, 1825, the said W. P. became a bankrupt, and the defendant, Samuel Cole, having disclaimed to hold under the lessors of the plaintiff, defended this action of ejectment, under an indemnity from the assignees of the said W. P. The question for the opinion of the Court is, whether the deed above abstracted, passed to the lessors of the plaintiff any and what estate in that part of the lands and premises mentioned in the deed, and therein described as being situate in the parishes of Loddiswell and Churston, of which the said Samuel Cole was, at the time of the execution of the deed, tenant from year to year to the said W. P., as aforesaid. Follett, for the lessors of the plaintiff. The deed in question passed to the lessors of the plaintiff an estate for life of the grantor in the premises sought to be recovered in the action. At the time of the execution of the deed, those lands were in the possession of a tenant from year to year. To pass an estate of freehold in possession, it must be admitted that livery of seisin is necessary, unless the conveyance operate under the Statute of Uses; but to pass a reversion expectant, either on a freehold or a term for years, a deed of grant with the attornment of the tenants (while attornments were necessary), was the proper mode of conveyance; and since the stat. 4 Ann. c. 16, which takes away the necessity of attornments, it will pass by the delivery of the deed only. The authorities upon this point are clear and decisive. In Co. Litt. 40 a, Lord Coke says, "So to conclude this point-of freehold and inheritances some be corporeal, as houses and lands, and these are to pass by livery of seisin, by deed, or without deed. Some be incorporeal, as advowsons, rents, commons, estovers, and these cannot pass without deed, but without any livery. And the law hath provided the deed in place or stead of a livery. And so it is if a man make a lease, and by deed grant the reversion in fee, here the freehold with attornment of the lessee by the deed doth pass, which is in lieu of the livery." Mr Justice Blackstone, in 2 Comm. 317, speaking of incorporeal hereditaments which are the subjects of grant, says, "These, therefore, pass merely by the delivery of the deed. And in signiories or reversions of lands, such grant, together with the attornment of the tenant (while attornments were requisite), were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in immediate possession. It therefore differs little from a feoffment, except in its subject-matter: for the operative words therein commonly used are, dedi et concessi, "have given and granted." The same principle is laid down in Shep. Touch. 210, 228; Bac. Abr. Leases (N); 1 Wms. Saund. 234, note 3; and Dyer, 33. Here, there are the words dedi et concessi in the deed, and there fore the principle applies. Neither does it make any difference that the estate in this case is one for years only. Littleton, in s. 567, says, "also, if a man letteth tenements for term of years, by force of which lease the lessee is seised, and after the lessor by his deed grant the reversion 1827. DoE d. WERE υ. COLE. |