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No. 16. Kendal v. Micfeild, Barnardiston, 47, 48.

accordingly ordered it to stand over for judgment; and now he was pleased to deliver his opinion in it. He said there were two questions for his consideration; the one, what sort of a legal estate the mortgagee had in this rent-charge? — namely, whether it was such an estate as would go to his heirs for the three lives that have been mentioned; or, whether it was such an estate as during those three lives would go to his executors? And supposing, for argument's sake, the legal estate would go to his heirs, the next question is, whether the trust of it does not belong to his executors? What makes this a very particular case is, that this is an estate pur autre vie. And the first point of the case is so new that, was it not for the second, he should have thought it proper to have had the opinion of a Court of law upon it. For though the rules are fully established how far the habendum of a deed shall vary and explain the premises of it, yet when one comes to apply the present case to those rules, there arises a good deal of diffi culty. And his Honour said, he could not find a single authority which would come up to the first point of the present case. The general rules are, that the office of the habendum is, to explain, limit, and declare the quantum of the estate which is to pass by the deed. It has never been disputed but that it will carry the limitation of the estate farther than the premises of the deed did. If a man gives an estate to A. for life, habendum to him and his heirs, a fee-simple clearly passes. On the other hand, it is clear that the habendum never abridges the estate granted by the premises of the deed; it may indeed vary and alter it. *As if a [*48] man grants an estate to A. and B., to have and to hold to A. for life, the remainder to B., the premises of the deed in that case will be controlled by the habendum. So if an estate is granted to a man, and to the heirs of his body, habendum to him and his heirs; this is a fee simple. It has been said in some books, that this is only an estate tail, with a remainder in fee; but it is difficult to maintain that opinion; and his Honour thought that it was not law. So far the rules relating to habendums are plain and clear; but the particular nature of the present case is such, that a grant of this kind to a man and his executors is the same as a grant to a man and his heirs; for in both these cases the heirs and executors do not take as representatives to the party, but as special occupants; and therefore it has been held, that if a grant of an estate is made to a man and his heirs for three lives, he may grant

No. 16. Kendal v. Micfeild, Barnardiston, 48, 49.

it to another, and his executors during those lives. So on the other hand, if such estate is granted to a man and his executors for three lives, he may grant it to another and his heirs during those lives. And as this is so, that it is considered as the same kind of estate, whether a grant of that sort is made to a man and his heirs, or whether it is made to a man and his executors; it follows from thence, that when one of these limitations is in the premises of the deed, and the other of these limitations is in the habendum, the habendum shall take place. For instance, if in the premises of the deed the grant of the estate pur autre vie is to A. and his executors during the life of B., habendum to A. and his heirs during that life; the heirs in that case shall have the benefit of the estate. On the other hand, if the grant of such estate is to A. and his heirs during the life in being, habendum to A. and his executors during that life, the executors shall have the benefit of it; and the reason for that is, that the habendum in that case does not attempt to give a less or a larger estate than was contained in the premises, but is merely explanatory. But then a difficulty

arises, in the present case, from this being the case of a [* 49] rent; and it is clear that before the Statute of Frauds and Perjuries no grant of a rent pur autre vie could be good any longer than the party himself lived to whom the grant was made. And though that grant was made to a man and his heirs during the life of another, or to a man and his executors during such life, neither the heir nor executor could have any benefit from such grant. This appears from 3 Cro. 901, and several other authorities; and the reason given for this was, that a rent was such a thing as did not lie in occupancy; so that it was certain, that there could not be a general occupancy of it; nor would the common law admit, in that case, even of a special occupancy. But then the question is, whether the Statute of Frauds and Perjuries has not altered the law in this respect? and whether a rent is not within the relief of that Act of Parliament, as well as any other sort of inheritance? And his Honour was of opinion that it was. The statute intended to make a general alteration with regard to all sorts of estates that were granted pur autre vie; and a rent-charge is as much within the intention of that Act of Parliament as any other hereditament. This difficulty then, concerning this case being that of a rent, may quite be laid aside; and then the matter concerning the legal estate depends upon that which he had before mentioned, namely,

No. 17. Goodtitle d. Dodwell v. Gibbs, 5 Barn. & Cress. 709, 710.

whether the habendum in this case ought not to take place? And he was of opinion that it ought, for the reason that he had before given; and consequently, that the legal estate in this rent belonged to the heir-at-law. But then the next question is, whether, within the meaning of the trust of this deed, the executor, Kendal, is not entitled to the benefit of that? And his Honour was of opinion that he was. It is expressly declared by the deed, that the mortgage was made upon the special trust, that the mortgagee, his executors, administrators, and assigns, should enjoy the benefit of £100 per annum, part of the rent-charge, to their own use, till the mortgage was satisfied, if the three lives continued so long. The only thing that makes the least difficulty in *this part of the case is, that it is pretty hard to conceive [* 50] how a man and his heirs should be trustees for a man and his executors; but this is the case of every mortgage that is made in fee. And so his Honour was pleased to decree accordingly.

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By lease and release M. H. conveyed to J. W., and to his heirs and [709] assigns, certain freehold and copyhold premises, to hold the same unto the said J. W., his heirs and assigns, from and immediately after the death of M. H., to, for, and upon the several uses, ends, intents, and purposes thereinafter mentioned. Held, that, by the premises, an immediate estate of freehold was given to J. W., and that the habendum had not the effect of rendering the deed void as giving a freehold in futuro.

Ejectment for lands in the parish of White Waltham, in the county of Berks. Plea, the general issue. At the trial before BURROUGH, J., at the Berkshire Summer Assizes, 1825, a verdict was found for the plaintiff, subject to the opinion of this Court upon the following case: Martha Hatton in her lifetime, and at the time of the making of the surrender to the use of her * will, and making such will and executing the deeds [*710] hereafter mentioned, was seised of estates of inheritance in fee simple in the premises in question, consisting of a messuage and buildings, and about five acres and a half of freehold land, and three closes of land which are copyhold, situate as aforesaid, and being so seised, she, on the 9th of February, 1763,

No. 17. Good title d. Dodwell v. Gibbs, 5 Barn. & Cress. 710, 711.

surrendered the said copyhold premises to and for such uses, intents, and purposes, and to and for the benefit of such person and persons, and his, her, and their heirs, as the said Martha Hatton by her last will and testament in writing already had or at any time thereafter should limit, direct, appoint, or give the same. Martha Hatton duly executed a lease and release of the said freehold premises as follows: The lease without date, and the release bearing date the 29th day of July, 1768, and made between Martha Hatton of the one part, and John Westbrook the elder of the other part, and by the latter indenture it was witnessed that for the settling and assuring the messuages or tenements, lands, hereditaments, and premises thereinafter mentioned, to and for the several uses, intents, and purposes thereinafter particularly mentioned, the said Martha Hatton for and in consideration of the sum of ten shillings, &c., paid by the said John Westbrook the elder, the receipt whereof was thereby acknowledged, and for other causes and considerations thereunto moving, did grant, bargain, sell, alien, release, and confirm unto the said John Westbrook the elder (in his actual possession then being by virtue of a bargain and sale to him thereof made for one whole year, by indenture bearing date the day next before the day of the

date of the indenture of release, and by force of the statute [*711] made for * transferring uses into possession), and to his

heirs and assigns, divers hereditaments, including by description the freehold and copyhold premises in question, to hold the same unto the said John Westbrook the elder, his heirs and assigns, from and immediately after the decease of the said Martha Hatton, to, for, and upon the several uses, ends, intents, and purposes thereinafter mentioned, expressed, and declared of and concerning the same; that is to say, to the use of the said John Westbrook the elder (from and immediately after the decease of the said Martha Hatton) and Anna his wife, and their assigns for and during the term of their natural lives, and the life of the longer liver of them; and from and after the decease of the survivor of them the said John Westbrook the elder and Anna his wife, to the use and behoof of John Westbrook the younger, son of the said John Westbrook the elder, and his assigns, for and during the term of his natural life, without impeachment of waste, and from and after the decease of the said John Westbrook the younger, to the use and behoof of the first and other

No. 17. Goodtitle d. Dodwell v. Gibbs, 5 Barn. & Cress. 711–713.

sons of the body of the said John Westbrook the younger, lawfully to be begotten severally and successively, and the heirs male of the body of such first and other sons lawfully issuing; and for want of such issue, to the use and behoof of Hatton, the daughter of the said John Westbrook the elder, and Anna his wife, her heirs and assigns for ever. And the said Martha Hatton covenanted for further assurance of the said freehold and copyhold premises to the uses aforesaid, but no surrender was made of the copyhold lands to the uses aforesaid. The lessor of the plaintiff was the daughter of Hatton (the daughter of John Westbrook and Anna his wife), by Henry Dodwell, her husband.

* John Westbrook the elder and John Westbrook the [*712] younger suffered a recovery in 1774; but it was admitted. that it did not bar the remainder given to Hatton Westbrook by the release of 1768, the only question raised being as to the validity of that deed. The case was argued on a former day in

this term by

Coote for the lessor of the plaintiff. The question turns upon the habendum in the deed bearing date the 29th of July, 1768. It is contended that the habendum gave an estate of freehold in futuro, and is therefore void. In the granting part, the estate given to J. W. the elder is express and certain; it is to him, his heirs and assigns; then follows the habendum, " to hold the same unto the said J. W. the elder, his heirs and assigns, from and immediately after the decease of the said Martha Hatton, to, for, and upon the several uses, ends, intents, and purposes hereinafter mentioned," &c. Now the habendum may very fairly be read with a stop after the words " heirs and assigns." If so, the grant would be immediate, although certain uses might arise in futuro. But an habendum is not an essential part of a deed (Shep. Touch. 76), and if it is repugnant to the granting part it must be rejected. There are, indeed, cases apparently warranting a different conclusion; but upon examination it will be found that they are distinguishable from the present case. The rule is this: if an estate be granted in any premises, and that grant is express and certain, the habendum shall not vitiate it, for utile per inutile non vitiatur. But if the estate granted in the * premises be not express, but arising by implication of [*713] law, there a void habendum, or one differing materially from the grant, may defeat it. Shep. Touch. 112; Baldwin's

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