USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. I > Part 27
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The Lessor of the Plt. was 33. years old in Feb. 1729, and Therefore if the Stat. did run upon him it must be Admitted that he is barred. But it will be Objected that the Stat. of Lim'n never runs ag't a Man but where he is actually ousted or disseised And that a bare possession or perception of Profits of one Parcener works no Disseisin of another Parcener According to the Case of Reading & Royston. 2. Salk. 423. And I admit the Law to be so. But that Case is to be understood Accord'g to Co. Lit. 373. b. thus
Where one Parcener entereth generally into the whole this doth divest the Estate which descended by the Law to the other. But where one Parcener entereth & Claims the whole; and takes the Profits of the whole that shall divest the Freehold in Law of the other Parcener
And where one Parcener enters into the whole and maketh a Feoffm't in fee this subseq't Act doth so explain the Entrey [174] Precedent, that the whole is divested from the beginning
This being our Case, the Freehold was divested from the time of the Entrey of Calvert and his Wife, and from that time the Stat. of Limitations has run upon the Lessor of the Plt.
But the other side took the difference, that the Conveyance made to the Defend'ts Father was made by the Daughters & Coheirs of Calvert and his Wife, and not by Calvert and his Wife, who entered into the whole, And therefore the Conveyance cannot explain their Entrey And I suppose this Distinction in- duced the Court to give Judgm't ag't my Client
And I think it was a right Judgment.
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GOODRIGHT Lesse of DAN'L MIDDLETON US ANN BATSON Fr Deft. Appeal from Northampton in Ejectm't.
The Case.
William Satchell was seized in fee of the Land in Question, and by his last Will & Testament bearing date the 7th Day of Jan'ry 1619. Devised in these words " I give unto my Youngest Dauter. Ellen Satchell 100 Acres lying upon the Sea side, to her and her Heirs forever " Then he gives his Daughter Grace Batson 100 Acres of Land adjoining upon Ellens 100 Acres, to her and her Heirs forever, and afterwards adds this Clause " And if either of my s'd Dauters. die without Issue the other shall take possession for her and her Heirs to enjoy forever, And if either of my s'd Daughters will not live upon the s'd Land, shall not sell it, or Otherwise dispose of it but let fall to the other that doth stay upon it, And if both leave it & go live upon other Land then it shall fall to my Son John Satchell And if both Daughters die with't Issue it shall fall to my Son John Satchell and the Heirs of his Body
After the death of the Testor. Ellen left the 100 Acres of Land and refused to live upon it, but having married one Thomas Middleton they by their certain Indenture dated 15th. of Xber, 1 1680. Sold and Conveyed the Land in fee Simple
Cole by Deed Poll dated 3. July 1684 Conveyed the Land to William Kindal in fee, Kindal by Assigm't dated 28 May 1686. Conveyed it in fee to John Batson who was the Husband of the other Daughter Grace
John Batson by his Will devised this 100 Acres to his two Sons Francis and W'm with't Limitting any Estate, Francis I [175] Suppose was the eldest Son, being first named, but it does not appear by the Verd't Grace Batson the Daughter and Devisee of Satchell claimed the Land forfeited by her Sister, by breach of the Conditions in her Fathers Will and by her Deed dated 30. Xber. 1705, also Conveyed her Estate to Francis and Wm. Batson her two Sons And W'm Batson by his Deed dated 16th March 1713. Conveyed his part to his Brother Francis
Francis by his Will dated 22. Feb'ry 1725. Devised this Land to his Wife Ann Batson the Deft. for Life
The Verd't does not mention anything of the Possession, but it must be intended that has passed according to the several Conveyances.
1December. [R. T. B.]
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The Deft. and those under whom she Claims has been in Possession of the Lands from December 1680 till the bringing this Ejectm't which was Commenced in the Year 1729.
The Lessor of the Plt. is Son and Heir to Ellen Middleton who died in the Year 1711, and Claims a Title to the 100 Acres of Land Devised to his Mother by his Grand Father Satchell supposing that his Mothers Estate was never Legally devested out of her.
We have been in possession ab't 49 Years with't any disturb- ance and we are Purchasors under Ellen the Lessors Mother So that our Title is to be favoured.
Our Title is indeed deficient so far as we derive it under Ellen because she was Ten't in Tail by her Father's Will, and the Act of Limitation will not aid us because the Lessors Mother died within Eighteen years next before the commencement of this Suit, Yet I think the Deft. has a clear Title under the Deed from Grace Batson.
For the Land was Limitted to her if her Sister refused to live upon it, and the Verd't finds that she did refuse to live upon it, So that her Title ceased, and the Title vested in Grace her Sister, as an Estate Tail by the last Clause of the Will (if both my Daughters die with't Issue &c.)
If it shou'd be objected that this is an Estate Condition repugn't to the Estate given to Ellen, and therefore void I answer. That there is no repugnancy in it, It does not take away any of the Essential Incidents of the Estate, but is a Temporary restraint during her Life, that if she wou'd Enjoy it she must live upon it
To give an Estate in Lands to one, upon Condition that another shall take the Profits, wou'd be repugnant & void But this is another Case. If a Man gives Lands in fee to another upon Condition that he shall not Alien, This is a void Condition, because it restrains a Power that is incident to the Estate. Yet if the Condition be that he shall not [176] Alien within any Number of Years, it is a good Condition 2. Lev'd 82. 3. Levn'd 182. Because the restraint is Temporary
In the Case of Sawyer and Hardy Moor. 400. Cro. Eliz. 414. Popham 99. Such a Condition as this was admitted to be good
But then if this be a Condition it will perhaps be Objected That Grace was but half Heir and so cou'd Claim only a Moiety as forfeited And if there had been no Limitation over it might be so. According to the Case 1. Roll. Abr. 410. 411.
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Sometimes in the Case of a Will, where an Estate is given upon a Condition as to pay money the Judges will construe it to be a Limitation in Order to fulfil the Intent of the Testor. As in the Case of Wainsworth and Pretty's Rolls. Abr. 411. Cro. Eliz'a 833. 919. 920. And see Danv. Abr. 9. pl. 3. and the Notes
But when Lands are Devised to one upon Condition that the Devisee shall do an Act, and if he does not do it, that the Land shall go to another. There the Condition determines the Estate of the Devisee and the Limitation over intitles the Person in Rem'r to the Land
So is the Case of Porter and Try 1. Vent. 199. 200. 1. Mod. 86. Where Lands were Devised to B upon Condition that she wou'd Marry with the Consent of her Grand-mother, and if she did not to C. It was Adjudged That upon a breach of the Con- dition the Lim. carried the Estate over to C. and when the Cause was brought into Chancery to be relieved ag't the Condition. 1. Mod. 308. C. B. Hats calls it a Conditional Limitation, for there is a Condition to determine the Estate of the first Devisee and a Limitation to Let in the other
And chief Justice Vaughan says 311. that it must be so by the Stat. of Wills which gives every Man a Power to devise his Estate at his Will and Pleasure, i.e. Absolutely upon Con- dition, upon Limitation or any way that the Law warranteth
Then in this Case allowing that there is a Condition in one part of the Clause upon the breach of that Condition the Estate is Limitted over to another, and this Limitation is good by the Stat. of Wills and vested the Title of the Lands in Question in Grace Batson. Therefore I pray Judgm't fr the Deft.
But the other side insisted that the breach of the Condition [177] only defeated Ellens Estate, during her Life and not since her death the Estate tail shou'd rise again for the benefit of the Issue
To which I answered that the Condition According to the Rules of Law must defeat the whole Estate 1. Rep. S6. 6. Rep. 408. which being a clear point the Court gave Judgm't for the Deft. (my Client) Tho' it was urged by the Plts. Council, that by the Limitation Grace had only an Estate for Life in her Sisters 100 Acres
But admitting it to be so. If Ellens Estate was defeated the Lessor of the Plt. has a good Title, For the Testors. Heir in that Case wou'd be Intitled to the Fee.
.
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1LAWSON US CONNOR Ejectm't Fr Plt.
The Case.
Anthony Lawson was Seized in fee of 900 Acres of Land with a Parcel of Marsh adjoining and by Deed Poll dated 6. Sep'r 1693. for a valuable Consid'n say'd to be paid gives unto John Fulcher a Moiety of these Lands for his Life, and after his Death to revert to the Grantor, Then after his decease he gives a Moiety of the Land to his Son Tho's his Heirs & Assigns, And the other Moiety in the same Deed he gives in these words " And the other " half of the s'd 950 Acres of Land that is to say, the Norther- " most half with an equal proportion of the Marshes to the " whole adjoining I do freely give to my Son Anthony Lawson " and to his Heirs and Assigns for ever to be possessed therewith " immediately after my Decease There was a Division made of the Land by an East & West line, And held Fulcher had a House and Plantation on the North side of the line, during his Life
The Grantor has Issue Tho's his eldest Son and Heir by one Venter, and by the second Venter Anthony in the Deed men- tion'd and two Daughters Margaret the Wife of Charles Sayer and Elizabeth Late Wife of the Deft.
Anthony died in the lifetime of his Father without Issue. The Father died in the Year 1701. Tho's enter'd and held the Land together and undivided with Fulcher and died leaving his Wife Ensient of a Son the Lessor of the Plt. After the death of Fulcher the Deft. ent'd A'o 1712. into the moiety given to Anthony and held it ever Since, And Charles Sayer and his Wife have Conveyed their right to the Deft.
The Question is Whether anything passed by this Deed to Ant'o the Son
[178] And I suppose the other side will insist That because Fulcher lived upon the Northern part of the Land which was Intended to be given to Anthony the Deed shall be Construed to give that moiety to Fulcher for Life, Rem'r to the Grantor for Life, rem'r to Anthony in fee, And then the Deft. will have a Title by marrying one of Anthony's Sisters and by Conveyance from the other Sister, they being Sisters of the whole Blood and Heirs to Anthony
For if the Estate given to Anthony was to pass by way of 1S. C. cited in W. G's Barradall 236. [Note by W. G.]
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Remainder, then it will not be material Whether he was ever Actually possessed of the Land
Now this is the Case of an Heir at Law & nothing is to be taken by Implication nor will the Court supply any words in prejudice to the Heirs title .
It does not appear by the Deed whether the Northern Moiety or the Southern moiety was intended to be given to Fulcher And his living upon the Northern moiety being a matter of Ex- post facto cannot Influence the Construction of the Deed Neither was the dividing line intended to set a part Fulchers moiety But it is Agreed that after the death of Anthony the Father that Thos. his Eldest Son entered and held the Land together & undivided with Fulcher So that this dividing line cannot affect the Case and the words of the Deed. That after the death of the Tenant for Life the Land shou'd Revert to the Grantor are of no Signification, for the Reversion in fee remained in him and wou'd vest again in possession of him or his Heirs after the death of Fulcher if these words had been Omitted. Then he proceeds and gives one moiety to Tho's & Heirs Habend, after his death & the other moiety to Anthony & his Heirs Habend. likewise after his death, So that nothing was intended to vest in Anthony either in possession or Rem'r till after the death of the Father
It can't be Construed to be a Rem'r in Anthony because there is no particular Estate to support it But it is merely a Grant of an Estate of Inheritance to Commence after the death of the father and no such Estate can by Law be granted
So is the Case of Pitfield and Pearce March 50. where a Case is Cited to be Adjudged in the Common Pleas That a Gift of a Rem'r after the death of the Grantor was void This Case of Pitfield & Pearce is Reported in 2. Rol. Abr. 789. Title Uses & is Cited 1. Vent. 139. 3. Lev. 372. [179] and the Authority of it not disputed Tho' it is questioned by Pollexsen in an Argu- ment of his in his Reports 529.
If that be Law, nothing passed to Anthony, but the Inheritance descended to the Lessor of the Plt. as Heir to his Grand-father Therefore I pray Judgmt
On the other Side, it was argued that this Deed might be Construed a Covenant to stand Seized, and that the Judges of late Years, if it were possible, wou'd find ways, that Mans Deeds might take effect According to their Intents and not be
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destroyed by a rigorous Construction, upon a seeming Repug- nancy to the Rules of Law
And 1. Vent. 137. Crossing and Scudamore 1. Vent 372. Pybus and Midford. 3. Mod. 237. Harrison & Austin 3. Lev. 370. 2. Lev. 225. And the Court gave Judgm't for the Deft. upon the Authority of those Cases, which do in my Opinion destroy the Authority of Pitfield and Pearce's Case. So I think it is a good Judgm't.
BARRET US GIBSON. Case Fr Plt.
Special Action upon the Case upon the Act of Assembly A'o 1712. for appointing Rolling-Houses
The Plt. Declares That the Deft. was keeper of a Publick Roll- ing House Established by the Act of Assembly, and did Receive from the Plt. 4 Hhds. Tob'o of the Plts. to the value of 40€. to be safely kept & redelivered to the Plt. when required And that for want of care & by the Defts. Negligence the Tob'o was lost
The Deft. being an Infant appeared by his Guardian and Pleaded not Guilty And the Jury find a Special Verd't to this Effect That the Deft. was keeper of a Rolling-house that had been a publick Rolling-House ab't 30 years & did receive 4 Hhds Tob'o of the Plt. & that the Rolling-house was maliciously burnt by a Negro Woman of the Defts. whereof she was Con- victed. That some part of the Tob'o might have been saved but the Deft. did not endeavour to do it, And the Jury conclude, that if the Deft. is by Law chargeable with the wilful burning of the House, then they find for the Plt. 22. 16. 1 p. Otherwise for the Deft.
The question left by the Jury to be del'd in point of Law depends upon the Construction of the Act of Assembly upon which the Action is grounded. And the words of the Act are " That the Owner or keeper of such publick Rolling-House shall " be liable to an Action at Common Law for any Tob'o Goods or Merchandizes which shall be lost [180] out of such Rolling House and for any Damage which shall or may happen to such Goods, Merchandizes or Tobacco during the time they shall be in Custody or under the care of such owner or keeper of a Roll'g House for want of due care or by the neglect of the Owner or Keeper of such Rolling-house, his Servant or Servants, to the Owner or Owners of such Tob'o &c.
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SIR 'JOHN RANDOLPH'S REPORTS
Now the Jury have found expressly a Negligence in the Deft. in this Case that some part of the Tob'o might have been saved But the Deft. did not endeavor to save it, Therefore by the words of the Act he must Answer for the value of the Tob'o to the Plt. But if that had been out of the Verd't he must be liable to us for the Damages we have Sustained in the loss of this Tob'o clearly by the words of the Act.
The malicious burning of the House by one of his Serv'ts Her being Convicted of the Felony and Executed for it can make no difference in the Case, for if one of his Servants had Stole the Tob'o there wou'd have been malice and a Felony, yet no body will say that shou'd excuse the Master, because the Act expressly says that the Keeper of the Rolling-house Shall be liable to an Action for any Tob'o that shou'd be lost out of the House. Nay by these words he must be answerable if a Stranger shou'd break open the House and steal the Tob'o So I think the malice or Felony will not be Considered at all in excuse of the Deft.
For if a Servant burn a House out of malice to his Master there may be a fault in the Master, either in provoking the Servant by ill usage to do him such an Injury, or in keeping a Person of so Vicious and wicked Disposition about him
Besides the Law will construe it a want of care & Negligence of the Master not to keep a Person in or near the House that may upon Occasion be ready to prevent a fire, or to put it out. And if such a necessary Caution had been taken by the Deft. in this Case in all Probability the misfortune had not happened
But the Master is here made liable for the Acts of his Servant and it is reasonable it shou'd be so for it cannot be just that a Person who trusts his Goods to the care and Custody of the Owner of a publick Warehouse shou'd Suffer by the malice of his Servants or by their Negligence So it is at the Common Law
If any Servant burnt my House and by that means my Neighbours house is burnt I am liable to an Action for the Damage. 2. Rol. Abr. 2. pl. 3. Fitz. Action upon the Case 25. Brook 30.
[181] If I give a Servant Money to defray the Charges of my Housekeeping & he buys the Necessaries for my House, but keeps the money & does not pay the Tradesmen, I am chargeable, for the Master at his Peril ought to take care what Servant he
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employs and it is more reasonable he shou'd Suffer for the Cheats of his Servants than Strangers Fr Holt in Dr. Robert Waylands · Case 3. Salk. 234. So in the Case of a Carrier If a Carrier takes Charge of Goods and is robbed he must Answer for them. 2. Mod. 270: Adjudged And a fortiori if he is robbed by his own Serv'ts he shall be liable
But there is another Question arising in this Case in respect of the Infancy of the Deft. for it appears by the Record that the Deft. is an Infant. The Case in 1. Rol. Abr. L. (D) pl. 3. will be mentioned Viz. If an Inn comes to an Infant and he keeps it and his Guests are robbed, no Action lies ag't the Infant.
But there is this difference between that Case and this, In that the Action is given by Custom of the Kingdom, or by Common Law, and in this the Action is given by the Statute
Where an Act of Parliament gives an Action, Inf'ts & Feme Coverts shall be liable. It is a settled point Therefore if a Feme Covert or an Infant Lessee for Life commits Waste and the Lessor recovers in an Action of Wast, it shall bind the Infant & feme Covert, because the Stat. gives the Action 8. Co. 44. b. Wittinghams Case.
So if an Infant & Feme is Goaler and suffers an Escape upon Execution they Shall be answerable for the same Reason 2. Inst. 382. 8. Co. 446. And upon the whole matter I pray Judgm't for the Plt.
But the Court gave Judgm't for the Deft. because the Master is not Chargeable for the wilful wrong of his Servant. Vid. Jones & Nail 2. Salk. 411. Ward & Evans ibid. 442. something to this purpose.
WILLARD US PERRY. Appeal Indebitat. Fr Appell't.
The Case.
Christopher Beverly by Indre. bearing date the 30. of March 1723, made between him of the one part & Jno. Perry of the other part Demised to Perry & his Wife 100 Acres of Land to hold to them during their lives, and Perry & his Wife, Coven't for Repairs, And then followed this Clause " And also that " neither the s'd John Perry, Mary Perry, nor either of them " shall Bargain, Sell, Assign, Demise, or Let, the s'd Land " with't the License & Consent of the s'd Christop'r in writing " first had & obtained." This Indre. was not Sealed by Mary &
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was not Recorded, Mary by Indre. bear'g date in the Year 1724. Demised the Land to the Deft. during her Life for the Yearly Rent of 600wt of Tobacco.
[182] Christopher Beverley, after the making this Lease ent'd and ousted the Deft. who sometime afterwards became Beverleys Tenant and has since paid him the Rent.
Mary Perry the Plt. below brought an Action of Debt against the Deft. for 2520wt. of Tob'o for Arrearage for the Years 1725, 26, 27 & 1728, due upon a lease of a Plantation in the Parish of St. Ann in the County Demised by the Plt. to the Deft. at the Yearly Rent of 620wt. of Tob'o to be paid on the 25 Day of December Yearly.
This is the Substance of the Decl. & now upon the Case agreed between the Parties in the County Court there is no such Lease, for the Lease upon the Record is of a Rent of 600wt p'r Annum with't any Day of payment And the Court have given Judgm't for 1800wt. Tobacco from which the Deft. has Appealed
Now with't entring farther into the Cause, this variance Destroys the Plts. Judgment. But by the agreeing of a Case below in which the Parties conclude that if the Plt. has a right to the Land, they agree she shall have Judgm't for 1800wt. of Tob'o. It will perhaps be urged that this Advantage is waved.
And Admitting it to be so I will Consider the Plts. Title which is liable to many Objections. 1. Mary Perry the Plt. is no Party to the Lease made by Beverley. And therefore by the Rules of Law con'd take no Estate.
But to this perhaps it may be Answered that she shall take notwithstanding; being Named in the Premises & the Habend." According to the Case of Windsmall & Hubbard Cro. Eliz'a 57. 2. The Covenant that the Lessors shou'd not assign their In- terest with't License is likewise a Condition, and if so the Lease made to the Deft. was a breach and the Lessor might Lawfully enter
All Deeds ought to be Construed so as the Intent of the Parties may take effect, The Intent of the Parties here is plain, that the Lessees Interest shou'd not be Assigned, and it's certainly very fit that if one party will wilfully and inexcusably Act contrary to the Agreem't that the other shou'd have some remedy. Now if this Covenant shall not be Construed a Condition as well as a Covenant the second Lease must be good and so the first Lessors Estate must pass from him upon other Terms than he intended
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and he can have no remedy ag't the Person that made the breach of the Covenant For the Plt. being a Feme Covert if she had been a Party the Covenant cou'd not bind her & so she cannot be punished for a breach of it.
[183] Therefore in Order to give the whole Deed an Opinion and to make it ineffectual in all its parts since no other Ex- pedient can be found out this Clause ought to be Construed a Condition.
There are several Cases where a Covenant has been construed a Condition 1. Rol. Abr. 407. 408. ibid Whitcock - 2. Bulst. 290. agreed by all being upon a Lease for Years which may determine as well as begin by Contract But in that Case it is expressed That a breach of the Covenant shall be a forfeit of the Land.
Then there is the Case of Simson and Tittorel 1. Rol. Abr. 410. Poph. 116. 117. Cro. Eliz'a 384. 385. and in many other Books, but in that Case there is the word Provided to Introduce the Covenant.
The differences between these Cases and ours are not very essential where the Intent is more to be regarded than the words. However 3d By the Virg'a Act A'o 1710 nothing passed by the first Lease for want of Recording Vid. the Act, So the Lessors entrey was Lawful.
And in Consequence of the Plts. wanting a Title to the Land she can have no right to the Rent, for the Lessee being Legally ousted by the Lessor the Rent reserved must Cease And this is not like the Case of Collins and Carpenter 1. Rolls. Abr. 605. Where Lessee for Years causes a Stranger to enter upon him yet the Lessor shall have an Action for the Rent S. C. Yelv. 73. Same Case Cro. Ja. 300. Humphry & Damian.
But at the time this Action was brought no Action of Debt wou'd lie for Rent upon a Lease for Life, for this we may go to the Act passed last Session
And the Court gave Judgm't for the Appellant.
EPPES US REDFORD Indebitat. Ass't Fr Plt.
The Plt. Declares that one Thomas Hulsey was Indebted to him £.12. by Bond, that he intended to sue him upon the Bond And that the Deft. in Consideration the Plt. wou'd forbear promised to pay it for the Deft. and avers forbearance. Upon Non Ass't we
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SIR JOHN RANDOLPH'S REPORTS
proved the Debt due from Tho's Hulsey to the Plt. and that the Deft. promised to pay it, and we likewise proved that Hulsey who is since Dead was at the time of the Promise in the Defts. Service But it being insisted at the Trial that we ought to prove the Consideration expressly as it is laid in the Decl. the Jury found a Special Verd't that Hulsey was Indebted as the Plt. in the Decl. hath set forth, and that the Deft. promised to pay it And the Question is whether this Evidence will Support the Declaration and prove the matter in issue
I conceive it does For there are Cases. Cro. Eliz. 201. Huth. 50. [184] Where it is say'd the Consideration must be proved Yet we are not obliged to prove the Consideration precisely as it is laid This appears in Linley's Case. Clayton 145. Where it is said the Judge did at first Hesitate whether the Plt. did not fail in his whole Cause, because the Consideration was not as he had made his Case but was after satisfyed that the Law was otherwise But a Case more strong to this purpose is that of Holdich and Broderick 2 Rolls. Abr. 681. pl. 6. Where the Plt. declared that I. S. was Indebted to him 1130£. & Appointed the Deft. to pay part of it That afterwards I. S. paid 1050₺. & in Consideration the Plt. wou'd forbear the rest 646. till ano'r Person shou'd pay the Deft. that Sum which he owed him The Deft. promised to pay it The Deft. pleaded Non Ass't and the Promise was proved And the Deft. wou'd have discharged himself by proveing that the Person that owed him the 6+f. had not paid it But by the Opinion of all the Judges at Serjeants Inn in Fleet Street Except Jones and Littleton, The Issue is only on the Promise and that Evidence wou'd not help the Deft., tho' it is shewed the Plt. had no Cause of Action But he Shou'd have Traversed the payment of the 64. and Confessed the Prom- ise
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