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South Tawton & Sampford Courtenay
Estate of William Reynell
1830: Hilary Term, Ware against Cann
Reports of Cases Argued and Determined in the Court of King's Bench, vol. 10, by
Richard Vaughan Barnewall, of Lincoln's Inn, and
Cresswell Cresswell, of the Inner Temple, Esqrs.,
Barristers at Law.
Summary:
Testator devised lands to A.B. and his heirs for ever; but if A.B. died without heirs, then to C.D. (who was a stranger in blood to A.B.) and his heirs; or if in case A.B. offered to mortgage or suffer a fine or recovery upon the whole or any part thereof, then to go to C.D.: Held, that A.B. took an estate in fee with an executory devise over, to take effect on conditions which were void in law, and that a purchaser in fee from A.B. would have a good title against all persons claiming under the said will.
BY an order of the Vice-Chancellor the following case was stated for the opinion of this Court:-
William REYNELL, deceased, by his will, duly executed and attested for devising freehold estates, after giving specific and pecuniary legacies out of his personal estate, devised in the words following:-
"And, lastly, as to all the rest, residue, and remainder of my personal estate and lands in South Tawton and in Samford Courtenay, I give unto Richard WARE, son of Richard WARE of North Tawton, and to his heirs for ever; but if in case the said R. WARE dies without heirs, then to John POWLESSLAND of Spreyton, and his heirs, son of Elisha POWLESSLAND of Spreyton; or if in case the aforesaid R. WARE offers to mortgage, or suffer a fine or recovery upon the whole, or any part thereof, then to go to the aforesaid J. POWLESSLAND and his heirs."
The said J. POWLESSLAND was a stranger in blood to the said R. WARE. The testator was at the time of making his will, and thence to and at the time of his decease, seised in fee-simple of a certain freehold estate consisting of a farm and land, called Middle Week and Bar Week, in South Tawton, and other distinct estates in South Tawton and Samford Courtenay. The said R. WARE having filed his bill in the High Court of Chancery against the defendant, a question has arisen in the suit upon the nature of the plaintiff's title to the premises under the said will. The questions for the opinion of the Court were,
First, What estate and interest the plaintiff took in the devised premises under the said will?
Secondly, Whether if the plaintiff were to convey a part of the estate to a purchaser in fee, the purchaser's title could be affected by the plaintiff's afterwards mortgaging or levying a fine, or suffering a recovery of the residue of the estate?
Thirdly, Whether if the plaintiff were to convey the whole estate to a purchaser in fee, the purchaser would have a good title to the fee against all persons claiming under the said will?
The case was argued in Michaelmas term by Rogers ROGERS for the plaintiff.
The answer to the first question is very clear, for the devise being in the first instance to R. WARE and his heirs for ever, and the devise over being to a stranger in blood, WARE took an estate in fee, [see] Tilburgh v. Barbut.
Then the second question comes to this: Can a devise over on alienation by tenant in fee be good? or perhaps the plaintiff is not even bound to deny that, for here the devise over is on an offer to alien. Now although a condition prohibiting an act be good, yet the prohibition of an offer or attempt is too vague and uncertain, and therefore void; for an offer is not an issuable fact, [see] Pierce v. Win; and according to that case, where the condition is against the offer to alien, actual alienation is not within the condition. [see] Bradley v. Peixoto, and Mildmay's case, shew that a condition restraining attempts at alienation are void; and in the latter case the resolutions of the Court clearly distinguish between such restraints of actual alienation as are valid and those which are void. Rightful alienations cannot be restrained: thus, tenant in tail cannot be restrained from suffering a recovery, nor a married woman, to whom, with her husband, a feoffment in fee is made, from joining in levying a fine; for those are lawful acts, and incident to their estates. But alienation by an infant is against the law: a fine levied by tenant in tail is deemed tortious, and therefore they may be restrained. In Litt. ss. 360, 361, and 362. other cases of conditions restraining alienation are put; and it is laid down that alienation to a particular person may be restrained, but that alienation generally, being repugnant to the estate given, cannot. Bradley v. Peixoto, and Ross v. Ross, are express authorities that conditions repugnant to the interest given are void.
(He was then stopped by the Court.)
PRESTON, contra.
This is not a mere condition. The first devise is conditional, and the devise over an executory devise to take effect, in the event of a certain thing being done by the first devisee. The restraint does not extend to his heirs, so that the devise over must take effect, if at all within the time allowed by law. But, taking it as a condition, the restraint is good. All restraints of alienation are not void. The king may restrain it, on account of the interest that he has in his tenant, Com. Dig. Condition; and in general restraints against alienation may be imposed where a particular estate, as for life or years, is given. The general rule applies to estates in fee and estates tail, but in all cases the question is, whether the condition be or be not repugnant to the estate. Bradley v. Peixoto, and Ross v. Ross, may be laid out of consideration, for they related to personal property only, which, as to this matter, is governed by the rules of the civil law. It is an admitted principle of law, that a testator, who has given a fee, may impose a qualification by which he retains some portion or reversionary interest which he may dispose of. He may impose a partial restraint on alienation: thus he may restrain alienation to A. or B., or to a class, as to Scotchmen or Irishmen, the rule of law applying only against general restraints of alienation. Here there is no restraint upon the sale of this property; for tenant in fee may alien without making a mortgage, or levying a fine, or suffering a recovery. The restraint upon alienation, by either of those methods, may be absurd: but there is nothing in our law which prevents against a testator from devising over an estate, upon any absurd event, at his pleasure. Then as to the word offer, it has certainly been said, in several old cases, that an attempt cannot be put in issue; but in modern times the courts have constantly been called on to try such issues. Thus an assault may be committed by an attempt to strike, and an attempt to commit a felony is an indictable misdemeanor. Such cases are constantly tried, and all attempts and offers are matters proveable by evidence, and therefore issuable.
ROGERS in reply.
It is true that Bradley v. Peixoto, and Ross v. Ross, related to personalty; but the doctrine contained in them applies equally to executory devises and conditions. A party cannot by the former restrain alienation where he cannot by the latter; the repugnancy of the restraint operates equally in each case. In Shep. Touch. 133., after various instances have been stated of conditions void for repugnancy, it is laid down,
"And the same law is for the most part of limitations, if they be repugnant, impossible, or against law, as is before shewed to be of conditions."
The following certificate was afterwards sent:-
This case has been argued before us by counsel. We have considered it, and are of opinion,
First,
That the plaintiff took an estate in fee in the devised lands, under the will of William REYNELL, with an executory devise over, to take effect upon conditions which are void in law.
Secondly,
That if the plaintiff were to convey a part of the estate to a purchaser in fee, the purchaser's title would not be affected by the plaintiff's afterwards mortgaging, or levying a fine, or suffering a recovery of the residue of the estate.
Thirdly,
That if the plaintiff were to convey the whole estate to a purchaser in fee, the purchaser would have a good title to the fee, against all persons claiming under the said will.
Tenterden, J. Bayley, J. Littledale, Jas. Parke.
Tilburgh v. Barbut
Cornelius Tilburgh/Tilbury, 17thC chirurgeon to their majesties
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