[296] Ejectione. Sur. Ro. 839.1 Brnl. GEORGE COUNDEN the younger brought an ejectione firme against Thomas Clerke of three acres of pasture in Newington, of the demise of George Counden the elder. Upon an issue of not guilty, the jury found a special verdict, that one William Counden was seized of the lands Devise B. 1. 1 in fee, and held them with others in soccage, and had 129. Devise to issue one John Counden and Elizabeth Counden, and that the heir or heirs of the name of the de the said Elizabeth took to husband one George Dalton, visor must find and had issue by him Jane Dalton and Elizabeth Dalton, a very heir. Of devises and their intents at large. This case is in Moor's Reports fo. 860. and judgment given for the defendant, against the brother of the devisor's title. and died; and that William Counden made his will, and gave thereby unto Jane and Elizabeth Dalton, to either of them ten pounds a year, during their lives, issuing out of certain lands in Southwark, called the Woolsack Rents, and therein had this clause. 'Item, As touching all my lands in Southwark, and in Newington, Lambeth, and Greenwich, whereof I now Judgment was stand seized, which of right will, and my only intent and meaning is, shall descend and come unto John Counden in this case given for Clerke, that is children as for the grand- my son, after my decease, this is my devise.' And then heirs in default appoints, that certain friends of his shall receive the Cause the devi- profits of them till his son shall come to twentyfour years, of the will, be sor's brother could not take by it. [30] and then they to make an account and satisfy him. And then adds this clause, 'Provided, always, that if my son John shall happen to decease without issue of his body lawfully begotten, that then I will all and singular my said lands, tenements and hereditaments, and every parcel thereof, shall go unto the right heirs males, and posterity of me and my name forever, equally to be divided unto and amongst them, part and portion like. And that then, and in such case I will and bequeath unto Jane and Elizabeth Dalton, and to either of them, one annuity or yearly rent of £5. a year apiece more, issuing out of the Woolsack Rents, for term of their lives.' Then the devisor dieth, and John Counden the son dieth without issue; then the two grandchildren, Jane and Elizabeth Dalton, enter as heirs, and make a lease of the lands in question to the defendant Thomas Clerke, who enters, upon whom George Counden the elder, being brother of William Counden the devisor, of his name and the whole blood, entered, and made the lease unto the plaintiff, [30 a] who entered, upon whom Clerke the defendant reentered. And if, upon the whole matter, the entry of George Counden the elder upon Clerke the defendant was lawful, then they find for the plaintiff, if not, for the defendant. I will make in this case three questions. Whether the limitation to the heirs males, &c. upon the dying of John Counden the son without issue, shall take effect by way of reversion or remainder, or else by way of original or expectant devise. For upon that point decided one way, will fall a certain consequence. The next point is, whether the limitation, if it were a deed, could carry this land to the brother. And the third is, whether it can carry the land to the brother in case of devise, as this is. 1 Cr. 24. 1. 2 Cro. 416. 2. 3. And to the first, I am of opinion, that the son is, by the To the first. proviso of this will, made tenant in tail to him and the heirs of his body. For the implication (which in a will Cr. Car. 161. is sufficient for that purpose) is plain. Hereof it will follow, that the limitation, after following to the right heirs males, &c. will be but a reversion, and will vest also in the son; for this is a positive rule, that a man cannot Vent. 372. 2. raise a fee simple to his own right heirs by the name of Mod. R. 208. heirs, as a purchase, neither by conveyance of land, nor by use, nor by devise. 28 H. 8. The case of the Abbot of Bury, &c. and the Lord Borough's case, 35 H. 8. Dyer 54. C. L. 22. t. 1 Ro. 626. C Cr. 833. Plo. Dy. 354. a. Ro. 1 Cr. 545. 1 Cr. 161. 1.626. Vaugh. 149. Sty. 148. Nay more, 4 H. 6. If a man devise lands to a person that is next heir, and his heirs, the devise is void, and it works by descent. Mich. 2. and 3. Phil. & Mar. Dyer 124. Debt against an heir. The defendant pleaded, that he 271. Dy. 124. had but the third part of twenty acres by descent; the issue was, whether he had the whole; and it was found that the obligor his father devised the whole to his wife, until the defendant his son and heir should come unto the full age of twentyfour years, and from thenceforth to him and his heirs, and judgment was given for the plaintiff. But it may be so limited unto heirs entail, or to one by the name of heir single in tail. M. 4 & 5 Phil. & Mar. Dyer 1 [306] Co. L. 22. t. 1. 156. the case of Greswold. He made a feoffment to A. for life, the remainder unto the heirs males of the body of And. 3 Co. L. the feoffor, the remainder to his own heirs in fee. The 1 Cr. 24. 1 Ro. father the feoffor had two sons, and the elder had a 2 Le. 25. i Ro: daughter and died; and it was adjudged for the daughter 26. b. 220. a. 841. 2 Ro. 415. 827. N. Benl. 49. Reason 1. Reason 2. against the uncle, either because the entail to the heirs males was void, or because it ceased in the elder son. But P. 2 Eliz. Dyer 181. Fish levied a fine to the use of himself in tail, and a formedon brought upon it by the issue. And the precedent words touching the descent of the land to him changeth not the case, for these reasons. First, it is no express gift assertive, but a report enunciative, thus touching my land (which my meaning is shall descend and come to my son, this is my will) and so proceeds to dispose it to his friends for a time, and then chargeth them with the rents, and then disposeth of the inheritance, ut infra, not agreeing in appearance with the descent. A second reason is, because the declaring that the land shall descend to his son is just the same that the law speaks, it is utterly void and idle, and then the rest of the devises must proceed, as if that had not been spoken at all, as the cases are before. This I devise, that if my son die without issue, then my land shall go to my heirs males. And therefore the case in 4 H. 6. and 2 and 3 Phil. and Mar. Dyer 124. before, is stronger than this, where it is resolved, that a devise made to the son and heir, and his heirs is utterly void, for then it is not to the heirs collective, but to the person that is heir in fee. And [31] though the limitation to the heirs males be spoken conditionally by the word, if John die without issue, that is an ordinary limitation of a rem. as in a fine si contingat, yet the rem. or reversion takes place presently. Reason 3. A third reason is, that that part of the will may take effect in all the words; and yet it may stand, as I take it, for the words are, that the land shall descend and come to the son, which is in all parts true, for it shall come to him in tail by the devise, and the reversion by descent. Now if the case shall be taken thus, then clearly if the [31 a] reversion vested in the son in fee, it must of necessity descend from him to the daughters of his sister, and not to his uncle. point. 14. a. Co. L. To the second point, when the limitation is made to To the second the heirs males or females, they that will take, must have both words verified in them, that they must be heirs, and also males or females. (1) But this hath a divers consideration, and upon divers reasons in case of descent, and in case of purchase; for the word heir is sometimes taken absolutely, and as the Grecians call it ἁπλῶς, or simpliciter; sometime κατά τì, or secundum quid, or per accidens; sometimes in abstracto, standing naked by itself, and of itself; and sometimes in concreto, clothed with land or rent, in respect of which he may be heir, that is not right heir, as the word is here. For example, the younger son Co. L. 176. a. in Borough English is heir, and all the sons in gavelkind; 140. a. b. 10. a. whereof the reason is, because the custom is, and so must 175. b. be pleaded, that the custom of those lands is, that they must descend to the younger son, or all the sons; so they are heirs secundum quid of those lands in point of descent, or when they descend, for then they are within the custom that gives the inheritance. Tum demum scimus cum per causas scimus. But now make the limitation, even of land of that nature, to heirs not in point of descent, and it will be clearly otherwise. And therefore, if I give 1 Co. 102. b. land in gavelkind, or Borough English, to one for life, the Co. L. 10. a. remainder to the right heirs of I. S. the true heirs shall Descent B. 59. take it, for this is out of the case of custom, and so must run to the heir at the Common Law. 37 and 38 H. 8. В. Descents 59. and Don. 42. 103. 101. a. Dy. 133. b. 12. a. 8 Co. 54. Mo. 114. Note also, that warranties and estoppels do always de- 1 Inst. 337. b. scend upon the right heirs general, as being to simple heirs. 38. E. 3. 22. If there be a warrantor, who hath lands in gavelkind, the eldest son shall be vouched alone; (1) An elaborate discussion of this doctrine, upon principle and authority, may be found in Hargrave's notes upon Co. Lit. note (3) p. 24. b. 164 b. See also 5 Bur. 2615. Wills v. Palmer. The decision in the case of Counden v. Clerke has been recognized as sound law in England in the recent case of Doe v. Perratt, 5 B. & C. 48. [316] but the tenant may also vouch the others for the possession; 32 E. ff. Voucher 94. that the heir general shall take such advantage of such warranty and no other, except he comes in as vouched for possession with the true heir. Also estoppels fall upon the heir at common law, and also the daughter, that comes in by possessio fratris, shall escape an estoppel of the father. 35 H. 6. 33. Br. Estopple 23. Co. 9. 97. (2.) 1 Syd. 26. 13 Nay more, if I convey lands that I have on the part of Co. 56. Co. L. the mother, or in Borough English, to I. S. and his heirs, without consideration, the use shall be void, and so the 780. 1 Co. 95. land shall return again to me, and to my heirs of the 13. a. 23. a. 1 Co. 100. b. 1 Cr. 24. 2 Ro. a. 99. a. Co. L. 169. a. b. mother, or in Borough English as before; for the law doth.construe the use of the same in state and quality as the land was. But if I do declare the use to me and my heirs, or upon such feoffment reserve a rent to me and my heirs, it shall go to my heirs at common law, for it is not within the custom, but it is a new thing divided from the land itself; (3.) Trin. 4. and 5 Phil. and Mar. Dyer (2) Though the lien of warranty descends from him who makes the warranty to his heir at common law, and it cannot descend to the special heir, yet the benefit of the warranty, being once annexed to the land, will go, in divers cases as incident to the land, to the special heir or assignee. Thus a gift of Borough English, with a warranty, shall go to the youngest son with the land. Cited from Hal. MSS. in Hargrave's notes to Co. Lit. 12. a. n. 60. So also where a man makes a feoffment to another of one acre with warranty, and dies seized of another acre of land of the nature of Borough English, leaving issue two sons, if the feoffee is impleaded, though the warranty descends only upon the oldest son, yet he may vouch them both, the one as heir to the warranty, and the other as heir to the land; but he cannot vouch the youngest son only because he is not the heir at common law, upon whom the warranty descends. Co. Lit. 376. a. So of heirs of gavelkind, the eldest may be vouched as heir to the warranty and the others in respect of the inheritance descended to them. Also the heir at common law and the heir ex parte materna may be vouched; et sic de similibus. Ib. There is a diversity between a warranty and an estoppel. Warranties are favoured in law, being part of a man's assurance; but estoppels are odious. An estoppel on the part of the mother will not bind the heir when he claims from the father, though he is heir to the estoppel. Co. Lit. 365. b. (3) This doctrine has been since overruled. A man, seized in fee of certain lands a parte materna, limited several estates with remainder to his own right heirs, and it was held that the heir a parte materna should have it, being the ancient use; and that there was no difference when upon the conveyance of an estate any part of the use results by implication of law, and when it is reserved by express declaration of the party from whom the estate moved. 2 Salk. 590, Abbot v. Burton. Com. R. 160. S. C. 2 P. Wms. 139, Harris v. Bishop of Lincoln. |