Page images

dant is only collateral heir of the obligor, the declaration ought to charge him specially, and the mesne descents ought to be stated. In debt on bond against the defendantų, as brother and heir to J. S., the defendant pleaded riens per descent from his brother. A special verdict was found, that the obligor was seised in fee, had issue, and died seised, and the issue died without issue; whereupon the lands descended to the defendant as heir to the son of his brother; it was holden that the issue was found against the plaintiff; for the defendant had nothing as immediate heir to his brother, but took by descent from the son of his brother; and although the defendant was chargeable as heir upon this bond, yet, being collateral heir only, the plaintiff ought to have declared specially. But this rule, as to stating the mesne descents in the declaration, applies only to descents from persons seised in fee simple in possession; for where A. being seised in feel, bound himself and his heirs in a bond, and having two sons B. and C., limited the estate to himself for life, remainder to his eldest son B. in tail, remainder to his own right heirs, and died; whereupon B. became seised in tail, with remainder in fee expectant, and afterwards died, leaving a son D., who became seised in like manner, and afterwards died without issue; upon whose death the premises descended to C. in fee, the estate tail being then extinct; an action having been brought on the bond against C., as son and heir to A., and riens per descent from A. pleaded, it was holden, that the declaration charging the defendant as immediate heir of A., and not mentioning the mesne descents, was proper (63). The plaintiff being presumed a stranger to the defendant's pedigreey, it is not necessary for him to state in the declaration how the defendant is heir.

Creditors by specialty should be careful to make the debtor bind his heir; as thereby they will be entitled to a priority in the distribution of assets by courts of equity under the stat. 3 and 4 W. 4. c. 104. making freehold and copyhold estates assets. See this stat. post tit. exors. s. 6. in fin. See also the

u Jenk's case, Cro. Car. 151. Bell's x Kellow v. Rowden, Carth. 126. per case, Hetl. 134.

Holt, C. J. and 2 Justices, Eyres, J.

dissenting. y Denham v. Stephenson, Salk. 355.

(63) As to what shall be assets by descent, see Serjeant Williams' note on Jefferson v. Morton, 2 Saund. 7. To the cases on this subject there collected, may be added the case of Doe v. Hutton, 3 Bos. and Pul. 643.

9th section of stat. 11 Geo. 4 & 1 W. 4. c. 47. making trader's estates assets, post. p. 599, to which a similar remark applies.

Of the Pleadings.-Riens per descent.-To this action the heir may plead, that he has not, nor had at the commencement of the suit, any lands or tenements, by hereditary descent from the ancestor in fee simpley. This plea is usually termed a plea of riens per descent.

Replication. The common replication to 'the preceding plea is, that the defendant had assets by descent in fee simple: upon which issue is usually joined. Upon this issue (64) the plaintiff must prove assets, but proof of assets in the county of A. will support an allegation of assets in the county of B.; for assets or not, is the substance of the issue, and the place is named only for conformity. Upon this issue a question frequently arises, whether the heir takes by purchase or descent, with respect to which the following rules may be observed : If lands are devised to the heir, and the devise does not make any alteration, either in the tenure, quality, or limitation of the estate; that is, if the devise conveys to the heir the same estate as the law would cast on him by descent, then the heir takes by descent, although by the terms of the devise there is either a possibility of a charge, or an actual charge and incumbrance on the lands, as payment of debts and legacies, and the like (65). For the replication given by stat. 11 G. 4. and i W. 4. c. 47. s. 7. see post. p. 567.

y Doctr. pl. 181.
z Cases cited in 6 Rep. 47. a.
a Clerk v. Smith, Salk. 241.

b Allam v. Heber, Str. 1270, and 1 Bl.

R. 22. Serjt. Hill's MSS. vol. 26, p. 194. S. C.

(64) Upon this issue the heir may give in evidence a bond, acknowledged by his ancestor to the king, and an extent thereon against the heir, [to the amount of the assets descended). Per Holt, C. J. Horne v. Adderley, Ld. Raym. 734, 5. But the extent only without the production of the bond, or examined copy thereof, is insufficient, per Holt, C. J. Sherwood v. Adderley, Ld. Raym. 734.

(65) Charging land with the payment of an annuity or rent, will not prevent the heir's taking by descent, per Holt, C. J. in Emerson v. Inchbird, Lord Raym. 728. In Haynsworth v. Pretty, Cro. Eliz. 833, Moor 644, Vaughan 271, the devise was to the eldest son in fee upon condition of his paying legacies to the second son and daughter; and in default of his so doing, then to such second son and daughter : it was holden that the devise over had not the effect of preventing the heir taking by descent. So where the devise was to the wife for life, provided she did not marry; and if she The language of the plea being, that the defendant had not any lands by descent, at the time of the original writ brought, or bill filed against him, it is evident that the defendant cannot avail himself of an alienation pending the suit, and that the lands so aliened will still remain 'chargede. If upon issue joined on the plea of riens per descents, the plaintiff prove that lands came to the defendant by descent, and the defendant give in evidence a conveyance of the same lands by himself to a stranger, before action brought, the plaintiff may, to encounter this evidence, prove that the conveyance was fraudulent, and therefore void by stat. 13 Eliz. c. 5.

Liability of Heir under stat. 11 G. 4. & 1 W. 4. c. 47.-At the common law, if the heir had made a bond fide alienation of the lands descended, before action brought, he was dischargede, and he might have pleaded this in bar; consequently there was not any remedy against him at law; although in equityf he was responsible for the value of the land aliened; but now, by stat. 11 G. 4 & 1 W. 4. C. 47. s. 6. (66), the heir is rendered liable in an action of debt or covenant, to the value of the land aliened before action brought or process sued out against him; and such execution shall be taken out upon any judgment obtained against such heire, to

c1 Inst. 102. a. b.
d Gooch's case, 5 Rep. 60. a.
e Termes de la Ley v. Assets.

f Per Comyns, B. in Krew v. Ld. Kil

main, Exch. T. 5 and 6 G. 2. MSS. & Per Ld. Macclesfield, Ch. in Coleman

v. Winch, 1 P. Wms. 777.

married, to the son in fee; and after her death, at all events, to the son in fee, charged however with an annuity to the daughter for life; and after the death of the wife and daughter, the testator bequeathed 15001. to the daughter's children; and if no children, then subject to her appointment; and, in case of no appointment to her executors, and in default of his paying the annuity to the daughter, or the legacy to her children, then he devised to a trustee; it was holden that the executory devise over did not alter either the quantity or quality of the estate to the heir, and consequently that he took by descent. Chaplin v. Leroux, 5 M. and S. 14. So where the devise was to the heir in fee, with an executory devise in case he did not attain 21. Doe d. Pratt v. Timins, 1 B. and A, 530.

(66) This clause, and the 7th, with the exception of the additional remedy by covenant, is almost verbatim the same with the 5th and 6th sections of 3 & 4 W. and M. c. 14. made perpetual by 6 & 7 W. 3. c. 14. but now repealed by stat. 11 G. 4. and 1 W. 4. c. 47. except as to persons who died before 16th July, 1830.

6 that

the value of the said land, as if it was his own debt, but not beyondh; and land, bona fide aliened before action brought, is specially exempted from such execution.

By the 7th section of the same statute it is provided, where debt or covenant upon a specialty is brought against any heir, he may plead riens per descent at the time of the original writ brought, or bill filed against him; and the plaintiff may reply (67) that he had lands, &c. from his ancestor, before original writ brought, or bill filed; and if, upon issue joined thereupon, it be found for the plaintiff, the jury (68) shall inquire of the value of the lands, &c. so descended; and thereupon judgment shall be given, and execution awarded as aforesaid, (that is, against the heir to the value of the land, as if the same were the proper debt of the heir ;) but if judgment be given against such heir, by confession of the action without confessing assets descended, or upon demurrer, or nihil dicit, it shall be for the debt and damage, without any writ to inquire of the lands, &c. so descended.”

h Brown v. Shuker, 2 Cr. & J. 311. I Tyrw. 400.

(67) To a plea of riens per descent the plaintiff replied, that the obligor (father of the defendant) died on such a day, and that the defendant after his death, and before the action brought, had lands by descent from his father in fee simple, unde querenti de debito prædicto satisfecisse potuit, and concluded with a verification. Upon demurrer, it was objected, that the replication was ill, because the plaintiff had put the value of the lands in issue by these words, unde, &c. de debito prædicto satisfecisse potuit, which ought to have been omitted; because the statute is express, that after issue tried, the jury shall inquire of the value; so that it is matter of inquest only, ex officio, and not to be the point of the issue; but the court held the replication good; observing, that if unde, &c. de debito præd. satisf. pot. had been omitted, it might have been a good cause of objection ; for the statute does not require any alteration of the form of the usual replication, except only as to the time concerning the assets by descent; and the conclusion, which before the statute was to the country, must now be with an averment, in order to give the defendant an opportunity of answering the new matter alleged in the replication. Redshaw v. Hesther, Carth. 353. See the pleadings in this case, 5 Mod. 119.

(68) In Jeffry v. Barrow, 10 Mod. 18. Powis, J. and Eyre, J. were of opinion, that by the jury,” in this clause, must be understood the jury that tried the cause; and consequently, if that jury omitted to inquire of the value of the lands, such omission could not be supplied by another jury.

The heir cannot plead assets in the hands of the executorsi; for it is at the election of the obligee to sue either the heir, or the executors. A plea by the heirk, that he claims to retain a certain sum for money laid out in repairs, not stating them to be necessary repairs of the tenements descended, cannot be supported.

Liability of Devisee under statute.-Before the statute of 3 & 4. W. & M. c. 14. persons who had bound themselves and their heirs by bond, or other specialties, used frequently to alienate the lands of which they were seised in fee simple by devise, for the purpose of defrauding their creditors; because, at common law, such lands, in the hands of the devisee or alienee, were not liable to the specialty creditor. To remedy this inconvenience, several provisions were made by stat. 3 & 4W. & M. c. 14. made perpetual by stat. 6 & 7 W.3. c. 14. the general view of which was to prevent such creditors from being defrauded of their debts, and to put the devisee on the same footing with the heirl, but as this statute has been repealed, except as to persons who died before the 16th July, 1830, by stat. 11 G. 4. & 1 W. 4. c. 47. it will be sufficient to state the enactments contained in the last-mentioned statute; by which, all wills m and testamentary limitations, dispositions or appointments already made (that is before 16th July, 1830] by persons now in being, or hereafter to be made by any person concerning any manors, lands, &c. or any rent, &c. or charge out of the same, whereof any person at the time of his decease shall be seised in fee simple, in possession, reversion or remainder, or have power to dispose of the same by will, shall be deemed (only as against such person and his heirs, successors, executors, &c. with whom the person making such will, &c. shall have entered into any bond, covenant, or other specialty binding his heirs,) to be fraudulent and void. And every such creditor may maintain debt or covenant, (69) upon the bonds, covenants and specialties against the heirs, and devisees, or devisees of such first-mentioned devisees

i 10 H. 7. 8. b. per Vavasour J. C. B. 1 See remarks of Lord Hardwicke on

and Cape's Case, 1 And. 7. S. P. ad- this stat. in Galton v. Hancock, 2 judged.

Atk. 432. k Shetelworth v. Neville, 1 T. R. 454.

m S. 2.
n S. 3.

(69) This is new; for under the stat. of Wm. & Mary, debt only could have been maintained. Wilson v. Knubley, 7 East, 128.

« EelmineJätka »