1755. TAYLOR d. ATKYNS agt. HORDE. K. B. bishop of York. So C. L. 42. b. He in remainder for life disseises tenant for life, he gains a fee: and where one has a rightful estate, though in remainder, his entry is not tortious. An entry by tort ousts all other titles. Formerly ejectments were brought merely to recover damages, but are now used to recover the possession, and it is in practice considered as an action of the lessor of the plaintiff. That no freehold is recovered by a verdict in ejectment, is evident by the same party's bringing a second. 6 Co. 7. b. Ferrers's case. The recovery of the term given by the habere fu. possessionem, must be lawful. 1 Ro. Ab. 663. 2 Sid. 156. A recovery in ejectment primâ facie presumes a fee in the lessor of the plaintiff, but where the contrary appears by matter of record subsequent, this overthrows the general presumption, and he takes only the naked term. Where the entry is lawful, the holding over will not make it a wrong. C. L. 57. b. It may be asked then, does it not amount to an ouster of the rightful owner? the answer is, that it makes him a deforceor, but not a disseisor. C. L. 177. b. 331. b. A disseisor must, of necessity, gain the freehold; a deforceor may, or not. A deforceor is either, 1st, by conveyance, as tenant pour autre vie holds over after the death of cestuique vie, or, 2ndly, by judgment, as where one recovers without title, by default, by the stat. of West. 2d. I admit in these cases, where it carries the freehold, the right is displaced, but otherwise where it does not. As lessee for years holds over, or lessor in ejectment recovers without title; in this case, he has only the naked term, as it happened in this case. As, then, he gained no freehold by his entry, so by his feoffment he conveyed no estate. We will examine, 1st, whether a feoffment without the concurrence of the jointress, who had the particular estate for life, would be good at common law; 2ndly, whether, by the statute 14 G. 2., her concurrence, or surrender, is to be presumed. 1755. TAYLOR d. ATKYNS agt. HORDE. K. B. As to the 1st, If Sir Robert, the son, had no rightful estate, he could not convey a freehold by bargain and sale, or by fine. Dormer & Fortescue. Mic. 14 G. 2. *3 Atk. 124. No more will a feoffment in the present case. Ro. Ab. 609. Let us also examine, 1st, whether making a feoffment with livery gains any freehold to the feoffor? 2ndly, Whether it conveys any to the feoffee? 3dly, Admitting a freehold did pass by the mere livery, yet the original entry being lawful, whether it can amount to a disseisin ? 1st, Where a man has a rightful entry, he cannot, in the eye of the law, be in possession by wrong, without the assent of the owner, and for his benefit. 1 Brownl. 230. If tenant for years, or at will, or at sufferance, makes a lease for years, or for life, he thereby gains a freehold as between the parties, but not against the right owner. 2 Inst. 412. The present case is materially different from that of a mere disseisin by tort, because here Sir Robert came in under a conveyance and title, and so is either a disseisor, or not, at the election of the right 1755. TAYLOR d. ATKYNS agt. HORDE. K. B. owner, but it cannot amount to a disseisin against the apparent intention of the owner. Brac. lib. 4. 161. C. L. 158. b. Cro. Car. 388. As he could not convey a freehold, by right, because the estate of the jointress intervened, so he could not convey any estate, as a disseisor, because against the owner's intention; and, in Vent. 360, the same doctrine is laid down, on the question whether a lessee might gain a freehold by disseisin. If tenant in tail infeoffs lessee for years, to make him tenant to a præcipe, yet this shall not merge the term, because it was not the party's intention, Cr. Ja. 643, 1 Mod. 107. Acts that will be sufficient to give seisin to an owner, may not do so to a disseisor. A force, or expulsion, and a personal trespass, are requisites to a tortious ouster; C. L. 181. 1 Salk. 246. A bare entry cannot amount to a disseisin. Though, in general, mere livery alone may be sufficient to pass a freehold, yet in the present case, his feoffment being under colour of right, and made only for a particular purpose, to make a tenant to the præcipe, it shall not work a disseisin, but is collusive, and void against the owner for fraud; and though it may be good as against strangers, it cannot against the owner. There are three sorts of tenants to the præcipe: 1st. where a base fee is gained by tenant in tail in reversion; 2d. where the tenant for life joins with the remainder in tail; 3d. where the immediate tenant of the freehold, as husband seised in right of his wife, makes a tenant to the præcipe, and the remainder man in tail comes in as vouchee. Tenant in tail in remainder coming to the possession by right, and making a tenant to the præcipe, is a new case; and Manxel's case in Plowden is denied in Coppledyke's case, 3d Co. 5. Actual disseisor levies a fine, this bars the disseisee, because he had notice to be upon his guard. Fermor's case, 3d Co. 77. All acts having a mixture of fraud, whether judicial, or not, are void, and though tenant in tail in reversion may make a tenant to the præcipe by disseisin, he cannot by collusion. As to the last point, whether by the late act 14 G. 2, a surrender of Dame Ann's estate for life is to be presumed, it never was the intent of that act, nor can it be construed, to extend to cases where there is manifest evidence of the contrary, and the provisos in that act seem to have been inserted purposely to prevent any such con struction. That she did not make any such surrender, her ejectment, brought afterwards to recover the possession, proves. beyond all doubt. To conclude. Supposing there was a good tenant to the præcipe, then I submit that the re-entry of Dame Ann purged this disseisin, and re-vested all the former estates. 11 Co. 51, Liford's case. Cr. Eliz. 540. 1 Anders. 353. and a case in C. B. Hil. 12 Ann., that the entry of the owner purges a disseisin. On a fine, there must be an actual entry before it will bar. On a feoffment, entry after judgment is sufficient. Mr. Knowler, for the defendant, I will not re-state the case, but take notice of the several parts of the verdict, as they shall occur in the course 1755. TAYLOR d. ATKYNS agt. HORDE. K. B. 1755. TAYLOR d. ATKYNS agt. HORDE. K. B. of The main question is, whether a good recovery or not, for if the recovery was good, the lessor of the plaintiff can have no title, he claiming under an old intail which that recovery would bar. It has been insisted by Mr. Yorke, that the recovery was void: 1st, because suffered by one out of possession, or, 2dly, if in possession yet not good, because he claims under the limitations of the settlement. propose to consider the transactions upon the settlement, under three distinct heads: 1st, the order of the execution, and manner of operation of the three deeds; 2dly, supposing the power contained in the great deed did exist at the time of the supposed execution of them, then whether they were well executed? 3dly, If they were, whether they would be any bar to this recovery? 1st. And here the verdict not finding which was first executed, (though it is a matter of fact) it is left in the power of the court to give priority to one of them, if they see fit. Upon considering them, I hope it will appear that the deed of covenants must be considered as subsequent to the great deed. The material parties are the same in both. The motives for the great deed are, 1st, a jointure for Dame Mary; 2dly, for Louisa; 3dly, a provision for the issue of the then intended marriage. |