Page images
[blocks in formation]

v. Cooper (a), Doe v. Agar (b), Pierson v. Vickers (c),
Poole v. Poole (d), Richards v. Lady Bergavenny (e);
and that this estate (there being no custom to entail) was
a fee conditional, and that the condition being performed
by the birth of issue, the issue were barred by the subse-
quent conveyances : or if R. Clemett took only an estate
for life, then the remainder to the heirs of his body
living at the time of his death was a contingent remainder,
and was barred by the destruction of the particular
estate; Smith v. Belay (f), Denn v. Bagshaw (g), Ar-
cher's case (h).

Cur, adv. vult.


[merged small][ocr errors][ocr errors]
[merged small][ocr errors][merged small][merged small]

Lord ELLENBOROUGH, C. J. on this day delivered the judgment of the Court.

After stating the case, his Lordship proceeded. On this case it has been argued, on the behalf of the defendant, that under the will of the testator John Clemett, his second son Richard Clemett took what, in the case of common law. lands, would have been an estate-tail, and what in the case of these burgage lands, where there is no custom of entailing, is a fee-simple conditional at common law; in which case the limitation to the heirs of his body as shall be living at his death was barred by the subsequent conveyances and fine: or if he took only an estate for life, with a contingent remainder to his children living at his death, that remainder was destroyed by the subsequent conveyances. On the part of the plaintiff it was insisted that the second son, Richard

si casele

mett tid


[ocr errors][merged small][merged small]
[ocr errors]
[merged small][ocr errors][ocr errors]


Roe, Lessee of CLEMETT,

against BRIGGS.

Clemett, took only an estate for life, with a vested re-
mainder to his children as purchasers as they came in
esse; or with a contingent remainder to his children
living at his death, which remainder, though contingent,
was not destroyed by the subsequent conveyances, inas-
much as, it was said, the freehold remaining in the lord
or in his alienee, was sufficient to support the contingent
remainder. So that, unless the limitation to the heirs
of the body of Richard Clemett living at his death, can
be held to be vested, or unless the freehold remained in
the lord, or his alienee, distinct from the particular pre-
vious life estate, so as to support the contingent estate,
(if it be held contingent,) the case of the plaintiff fails.
And upon the fullest consideration, we are of opinion
that both these points are against the plaintiff. First,
as to the remainder being vested. It was argued that it
was vested on the authority of Bromfield v. Crowder in
the House of Lords, and in 1 New Rep. in C. B. 313.,
where, after two estates for life, the testator devised his
real estate to his godson, John Davenport Bromfield, if
he shall live to attain the age of 21 years; and in that
case, first the Court of Common Pleas, and afterwards
the House of Lords, on appeal from a decree of Lord
Chancellor Erskine, determined that it was a vested in-
terest in John Davenport Bromfield, determinable on the
contingency of his dying under 21; that is, that the
term if was used by the testator to denote a condition
subsequent, and not a condition precedent. And this
was according to former decisions of Edwards v. Ham-
mond in 3 Lev. 132., and in 2 Show. 398. But those
cases materially differed from the present; the devisee in
remainder was a person in esse, and the words of con-
dition, if he attained 21, were used only to denote the


RoE, Lessee of CLEMETT,

against BRIGGS.

time when the estate should come into possession. Here the estate is limited not to any persons in being, nor to any persons of whom it could be predicated for certain, that they ever would be in being, or that if they ever came into being, they would be so at the death of the testator's son Richard; the limitation being after the decease of his son Richard “unto the heirs of the body of my said son Richard Clemett, lawfully begotten or to be begotten, equally amongst them as shall then be living ;' so that the remainder is contingent, and depends not only on the event of there being any child or children born, but on the event of any of them being living at the death of their father. And no case has been shewn where an estate depending on such a contingency has ever been held vested. And this brings me to the second question, whether considering this as a contingent remaiņder to the children of Richard Clemett who should be living at the time of his death there was a freehold in the lord sufficient to support it; this being a customary 'estate, where the freehold is in the lord. Where a contingent remainder is created out of a common fee-simple estate it must have a previous estate of freehold to support it; and the destruction of every such previous estate, before the remainder vests, destroys the remainder : but where the remainder is created out of what may be called a subordinate fee-simple estate, as out of a copyhold, where the ordinary fee-simple is in the lord, or out of an equitable estate, where the ordinary legal fee-simple is in some other person, the destruction of the previous estate will not affect the remainder, but it shall be supported by the ordinary fee-simple estate. 4 Term Rep. 64. The estate in this case was a subordinate fee-simple of burgage tenuro,



RoE, Lessee of CLEMETT,

against BRIGGS.

where the ordinary fee-simple was not in the testator, but in the owner of the lord's rent; but see what took place during the life of Richard Clemett, the second son of the testator and devisee for life under his will, and after his estate for life came into possession. In 1769 Richard Clemett, then tenant for life, for a valuable consideration executed a customary conveyance of this burgage-house to James Thompson and his heirs for ever, according to the custom. James Thompson entered and was possessed, and afterwards, after several like mesne conveyances of it, in 1787 it was conveyed to James Scaife and his heirs, who entered and was possessed; and afterwards, in that same year, Edward Shepherd being then entitled to the lord's rent of these premises, and entitled to the freehold thereof in fee, holding the same of Lady Andover as chief lady of the manor of Kirkland, signed, sealed, and delivered to Scaife a deed of enfranchisement, by way of feoffment, whereon livery of seisin was duly made; whereby Shepherd granted, bargained, sold, enfeoffed, released, ratified, and confirmed to Scaife, his heirs and assigns, the premises in question (among others,) to hold the same to and to the use of the said Scaife, his heirs and assigns for ever, absolutely freed and discharged of and from all rents, fines, customary tenures, and services whatsoever. Scaife afterwards, in 1789, by feoffment, with livery of seisin, conveyed them as freehold to Fletcher, from whom they afterwards passed to Romney, after a fine levied of them, in 1794, and from Romney they passed by several mesne conveyances to the defendant. By this statement it appears that during the life of Richard Clemett, the tenant for life of these premises, his estate in them having been conveyed to Scaife, the freehold, which was in Shepherd,




d son

, and

ROE, Lessee of CLEMETT, against BRIGGS,

[ocr errors][merged small][merged small]
[ocr errors]

became united with the particular estate, which was
in Scaife, and he held the estate from that time freed
and discharged of and from all rents, fines, customary
tenures, and services whatsoever. So that, before the
contingency happens, Scaife has in himself the whole
freehold estate, which he alienes, and his alienee levies a
fine. What then has become of the outstanding freehold
in the lord which is to support the contingent remain-
der? It is united with the particular estate, and the
estate is no longer an estate, the freehold of which is

the lord, or in any other person than the owner of
the customary estate; for a person cannot hold of him-
self and be at the same time both tenant and lord.
But then it was argued for the plaintiff that Scaife, and
his subsequent alienees, had not the whole customary
estate, and that he could not surrender the contingent
estate. But that is not necessary to the destruction of
the contingent remainder. By the enfranchisement, the
estate became severed from the manor; and though the
person, to whom the enfranchisement is made, have only
a particular estate in the premises, and he take a con-
veyance of the freehold in fee, it shall be an absolute
enfranchisement; the copyhold tenure shall be extinct
for ever, and the enfranchisement shall enure for the
benefit of those in remainder; that is, their estate shall
cease to be held of the manor, and shall become of free-
hold tenure. After the enfranchisement, the premises
being severed from the manor and the tenure changed,
all customs, and all rights, and privileges, which before
attached to their customary tenure, cease with respect to
them. The cases on this subject will be found collected
together in Watkyns' Treatise of Copyholds, I vol. 362.
& seq., Chapter on Enfranchisements. We therefore


[merged small][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][merged small][merged small]
« PreviousContinue »