not against him here 's no Fraud or ill Practise c. Then if the nature of the thing be considered the Demand is of a Right not arising by Agreement of Parties but by Operation of Law if the former Chancery might perhaps construe and enlarge it so as to fulfil the utmost Intention but here her title is the Marriage the Seisin and Death of the Husband And there never was a time when if her Lord had died she could have had immediate Dower for even the Term had been pleadable by an Heir of Law to a Writ of Dower Now what doth give her an Equity against the Respondent Her Claim is by from and under her Husband as having a Right to a Proportion of what he had that is a Right by the Law where is the Equity that should improve or mend this Right Perhaps it must be agreed That if the Husband had just before Marriage made a long Lease on purpose to prevent Dower and the Woman expecting the Priviledges which the Common Law gives to Women married had surviv'd him Equity might have interposed and yet even this was practised by a Reverend Judge of Equity Mr. Serjeant Maynard who made such Lease to his Man Bradford the day before his last Marriage but here is no such Action 't was an old Term created by the old Earl of Warwick As to the Case of the Mortgages The Feme intituled to Dower is let in because the Person who is the Mortgagee hath no Interest but to have his Money and Equity is to execute all these Agreements but never where there is a Purchaser or where the Interest of the Mortgage is assigned to the Heire Between her self and the Mortgagee she comes in place of her Husband and the Husband could redeem and so may the Wife but against a Purchaser she has no more Equity then her Husband had and that is none at all If she hath a Legal Title antecedent to the Purchasers as Marriage and Seisin where there 's no Term standing out that shall prevail and Equity shall not help the Purchaser against her so where the Purchaser hath a Legal Title as by a Term precedent Equity cannot relieve her And whereas it was objected That there was no Case adjudged in Chancery against the Appellants pretence the Answer is plain The Common Law is against it and if no Precedent in Equity the Common Law ought to stand 'T is nothing but Precedent that Consecrates half the Decrees in Equity And no Man will say that ever any Woman was endowed in Equity of a Trust Estate If a Man hath a Term for Ten thousand years and be entirely and properly owner of it tho' the same be equal in value to a Feesimple for the Reversion after it is worth little or nothing yet no Dower can be claimed in Equity nay If the Husband be seized together with another Person and not sole seized yet no Dower even in Chancery can be claimed against the Survivor So that Equity doth not exceed the Rules of Law in advancing the Right of Dower 'T is true unless Fraud be in the Case according to the Case of Nash and Preston in Cro. Car. 190 191. Relief in Equity shall not be given against a Legal Title to Dower yet 't is as true that where the Law doth not give Dower Equity will not unless there be Fraud and Covin used to prevent it and then common Reason enjoyns a Court of Conscience to Relieve If any Allowance had been in the Purchase upon Consideration of the Title to Dower the same would have been a very material Argument but in this Case there was none And therefore 't was prayed that the Dismission might be affirmed and it was so Dominus Rex versus Baden WRit of Error to Reverse a Judgment given in the Court of Exchequer and affirmed upon a Writ of Error in the Councel Chamber before the Chancellor with the Assistance of the two Chief Justices The Case upon the Record was only this One Allen outlaws one Clerk in Debt on a Bond in Mich. 1690. on the Seventh of Jan. 1690. by virtue of a Special Capias utlagatum and inquisition thereupon seizes Clerk's Lands into their Majesties hand In Hillary Term following the Outlawry and Inquisition are certified into the Exchequer and Allen obtains a Lease under a Rent In Mich. 1692. Baden comes and pleads that in Mich. 4 Jac. 2. he recovered a Judgment against Clerk for 1080 l. that in Trinity Term 1691. he took out an Elegit and had a Moiety of the Lands extended and therefore prays that an amoveas manus may be awarded Mr. Attorney replies That the Lands were seized by virtue of the Outlawry and Inquisition long before the Elegit was sued and therefore c. Baden demurs and Judgment for the King It was argued on behalf of the Plaintiff in the Writ of Error that this Judgment was Erroneous for that there 's a vast difference between an Outlawry in a Civil and one in a Criminal Process That in a Civil Action 't is only a Civil Process for the benefit of the Party and 5 Edw. 3. cap. 12. the King cannot pardon an Outlawry at the Suit of a private Person that 't is only to help one Subject to his Debt from another that the King hath no Advantage by it and so no need of a Preference by reason of the Prerogative that at Common Law no Man could be outlawed that now it is purely given for the sake of the Plaintiff that the common Practise is to make a Lease or grant a privy Seal to the Party That by this Outlawry the King hath no Interest in the Land he cannot cut down the Trees 9 H. 6.20 that he cannot Plow or Sow but only collect and receive the Profits which arise out of the Land Bro. tit Outlawry 36. tit Patents 3. that the King hath not the possession of the Land which shews it not to be a Forfeiture to the King but it remains the Parties still in respect of Ownership he may make a Feoffment 21 Hen. 7.7 2 Inst 675. Hob. 122. by the Judgment the Lands were bound tho' the Title was not compleat till the Elegit was sued out a monstrans de droit or Petition did lye and now the same Matter may be pleaded 'T was further argued That great Mischief must follow if an Outlawry upon Civil Process may defeat a Judgment that Judgments with release of Errors are taken and used as common Securities that this is most plainly a device to avoid them that this can be no Security if an Elegit may not be sued but prevented by the Party himself for here it is his own default not to avoid this Outlawry by Appearance that no act of the Debtor could alter the Security and there 's no reason why his neglect should that this Contest is between Baden and Allen and not between Baden and the King Allen's Suit was but just begun and this is
the Grantee for 't is plain from the whole Contexture of the Deed that the Defendant was to have nothing in the Term till the Death of the old Man and his Wife It was undoubtedly the meaning and design of all the Persons concerned that the Defendant only should have the Residue after his decease Then that the Law will not permit this is plain from the Books for that 't is uncertain how much or if any of the term will remain or be in being at the death of the Grantor or Assignor that the Law rejects such a small or remote Possibility that Man's Life in the Eye of the Law is of so great a regard that 't is presumed to be of a longer duration than the longest term of years That this is an old Maxim upon which Thousands of Properties do depend that tho' some Mens reason may not approve it 't is not to be altered but by the Legislature that the Law first prefers Inheritances or Estates descendible then Freeholds or Estates for Life then Chattels real or Terms for Years The Law values and regards what a Man and his Heirs shall enjoy before that which he himself only can enjoy and what he himself may enjoy during his Life before what he may have only for a certain limited time the which he may by any supposal survive These are known Truths 32 Assis 6. Plowd 521. If a Man be possessed of a Term for 100 years and grants so many of them as shall remain at the time of his death this is void for the uncertainty otherwise if it be by Devise because there nothing takes effect till death and then 't is certain how many years he is to enjoy it 'T is true a Lease of Land for Forty years to commence after a Man's death is good because 't is certain that the Land shall be enjoyed for Forty years but here non constat in certain that this Deed could take effect for a year an hour or at all Bro. tit Lease 66. Plowd 520. A Man possessed of a Term grants it to another during Life 't is as much as during the whole Term tho' never so long because Life is presumed longer so if he grant all the Term that shall remain after his Death 't is all void because he reserves to himself the whole for a greater includes the less and for Life is the longest of the two These things are not to be disputed If both Premisses and Habendum had had this Limitation the other side must have agreed it to have been void ab origine and nothing to have passed by this Deed. But then the Objection is That the whole Term passes by the Granting Part and then the Habendum is void because 't is repugnant To this it was answered That in a Deed each part hath its proper Province The Office of the Premisses is to express the certainty of the thing granted the Habendum is to express the quantity and limitation of the Estate 1 Inst 6. Plowd 196. Lofield's Case 10 Rep. 107. And according to Littleton's Text Sect. 370. all the parts of the Indenture are but one Deed in Law from whence it was inferred That the Habendum is never to be rejected but when there is a manifest express and particular Contradiction never when the Habendum doth apparently shew the Parties Intention Here the Lessee for years grants totum Cottagium suum c. The Grantee or Assignee if there be no Habendum hath but an Estate at will whereas if he grants all his Estate and Interest in such a Cottage there the whole Term passeth This is the express Opinion in Griffin's Case 2 Leon. 78. Case 102. and there said to have been lately so adjudged in Wynnibank's Case in B. R. Now here 's nothing in the Premisses but what is general not the whole Estate granted nor is it said for how long time he shall enjoy it and therefore the Habendum cannot be said to be repugnant or contradictory because the first is not express In Stukely's Case Hob. 170 171. upon the Case of Grants and Exceptions is the learning of Habendums laid down if it had been a Grant of all his Estate Habendum after his Death there the Habendum shall not frustrate the Grant but if the Premisses give no certain or express Estate there you may alter and abridge nay you may utterly frustrate it by the Habendum these are the words of the Book Then was cited 2 Rolls abr 66. and 1 Inst 48. b. and the same Case of Hodge and Crosse in 3 Cro. 254 255 where 't was ruled That the Habendum tho' void shall controul the implied Limitation in the Premisses 't was a Feoffment of Lands in London Habend ' to the Feoffee and his Heirs after the Death of the Feoffer And 't was argued in that Case That the Habend ' was void but resolved That nothing passes because it appears to be the Intent of the Party that nothing should pass but in futuro for the Premisses could pass nothing but by Implication and that was nothing at all because the Intent was to pass nothing presently and tho' there were Livery made yet that Livery could operate only secundum formam Charte and therefore the whole was void the reason was because the first was General tho' the Law would have given a particular Estate for Life by the Livery yet because the Party gave none expresly by particular Words the Habendum was not to be rejected many of the Rules in Buckler and Harvey's Case 2 Rep. 55. are applicable to this And altho' there be a Difference where the Deed passes the Estate and where Livery or other Ceremony is requisite as to many purposes yet still the Distinction is where the Premisses do not give all the Parties whole Interest or some other particular Estate but is General there the Habendum shall not be rejected as repugnant 2 Rep. 23 24. Baldwin's Case As to the Words together with the said recited Lease that can only mean the Indenture or Writing for the Adjective recited implies the Intent to be such Recited signifies only a Rehearsal or Repetition of Words spoken or written before and so is Recitare Testamentum Calvin's Lexicon and 't is joined with the other Writings and Evidences concerning the Premisses and doubtful Words are to be construed according to the Nature of the things expressed and mentioned with them Lease in it self imports only the Conveyance or Instrument of Conveyance not the Interest in the thing conveyed if by Writing 't is called a Deed or Lease in Writing if otherwise a Lease Parol Thus is it explained in Blunt's Law Dictionary and in Knight's Case 5 Rep. 55. where all the Parts of it are described A Man may give away his Lease and yet retain his Estate or Term he may deposite it as a Pawn or Pledge and the Party in whose Custody 't is so lodged may maintain Trover or Trespass if it be taken from
him nay against the Lessee himself the Owner of the Lands if he takes it before the Performance of the Condition so that these Words cannot alter the Case this is not the Case of a Will but of a Deed Executed in the Life-time of the Party the Rule and the Reason of the Rule about Exceptions in Grants will hold to this where the Grant is General the Exception cannot be rejected as void on pretence of Repugnancy The Common Law doth not care to raise or make Estates by Implication where the same Person hath an express one so is Vaughan 261 262. therefore there 's no Reason in this Case to construe the whole Term to pass by Implication in the Premisses a particular Estate being limited in the Habend ' and that not being good all is void Here 's no Purchaser Creditor or Heir in the Case but 't is a meer voluntary Act to the Defendant Then was cited 1 Cro. 376. 2 Bulstr 272. of a Copy-holders Surrender Habend ' a tempore mortis and held void wherefore upon the whole it was insisted That by the Premisses nothing passed but an Estate at Will That the Habend ' giving an Estate or Interest which was not allowable in the Law the Deed was void and passed nothing and therefore the Verdict was for the Plaintiff and the Judgment in B. R. was good and accordingly it was prayed That the Reversal of that Judgment might be reversed On the other side it was argued That to construe this to be void was contrary to the Intention of both the Parties That now the Grantor and his Wife were dead and there was no dispute about their Estates That the Premisses here passed the whole 't is to her and her Executors and Assigns 't is all that Cottage 't is together with all his Deeds concerning it the Deeds are concomitant with the Estate and when he grants the Deeds he certainly did design to pass his Interest he could never mean an Estate at Will when he names the Executors c. Then was cited the Case of Lilley and Witney Dyer 272. pl. 30. Grant of all his Interest Estate and Term Habend ' after his Death the Habend ' is void Plowd 520. 1 Bulstr 191. Bro. Grants 154. Leases 66. The Presumption that a Man can out-live a 1000 Years is a weak Pretence and void of Reason Equity is a part of the Law of the Land and here to judge this void is unconscionable and unreasonable Then was cited 1 Anderson 284 290. Grant of a Reversion Habend ' after his Death shall vest immediately the Lease imports and carries the Estate Peto and Pemberton 1 Cro. 101. Plea That he had surrendred his Lease which shews that it carried the Interest they are Synonimous Bro. tit Grant 155. A Man grants omnia firma sua shall pass his Term There 's no prescribed Form for passing a Chattel before the Stat. of Frauds A Man possessed of a Term grants it to another and his Heirs it passeth the whole so to a Man for Life it shall pass the whole Interest and shall go to his Executor Plowd 424. 3 Cro. 534. If the Habend ' were out of the Case this would pass the whole and if so the Habend ' is void 't is an old Rule and a good one Vt res magis valeat quam pereat The Lord Chief Baron Hale seem'd of that Opinion in the Case of Smith and Tutchett in scacc ' but that proved a Mistake for that Case was different and was ended by Consent as appeared by a Rule Die Mercurij 13. Die Maij Term ' Pasch 26. Car. 2. after Hale was removed into the Kings Bench. Then 't was said that there could be no ill Consequence in adjudging this to be a good Assignment the like case was never probable to happen again that here had been a Diversity of Opinions below Stairs that Equity was with the Defendant and therefore 't was prayed That the Reversal might be affirmed and it was affirmed accordingly Bennett Swayne Esq Petitioner Versus William Fawkener and John Lane Executors of Benjamin Middleton Defendants WRit of Error to Reverse a Judgment in the Kings Bench given for Benjamin in an Action against Swayne for 20 l. received by him of the Profits of a Share in the New-River c. The Case was thus Simon Middleton Esq being seized in Fee of Seventeen Thirty-six Parts of the King's Moiety in the New-River Water and having Issue eight Children viz. Hugh Sarah Hannah and Anne by his first Wife and Elizabeth Rebecca Benjamin and Hezekiah by his second Wife made his last Will and thereby amongst other things to the intent that all his younger Children might be provided for he devised Seven Thirty-sixth Parts or Shares of the King's Moiety aforesaid amongst them in manner following viz. to Sarah Hannah and Anne to each of them and their Heirs one full Thirty-sixth Part or Share of the said King's Moiety free and discharged from the Fee Farm Rent payable to the King's Majesty and of 100 l. per Annum payable to Henry Middleton deceased and his Heirs and from all other Payments and Charges whatsoever And also to Elizabeth Rebecca and Benjamin and to each of them her and his Heirs one full Thirty-sixth Part or Share of the said New-River Water of the King's Moiety only they and each of them proportionably to stand charged with the payment of the Fee-Farm Rent due and payable to the King's Majesty and with the 100 l. per Annum to Henry Middleton and his Heirs and with no other Payment or Charge whatsoever and to his Son Hezekiah and his Heirs one full Thirty-sixth Part or Share of the said New-River Water the said Share being part of the King's Moiety to hold to him and his Heirs with the Rents Issues and Profits thereof from and immediately after his Decease only proportionably to stand charged with the Payments of the Fee-Farm Rent due and payable to his Majesty and with the aforesaid 100 l. per Annum to the said Henry Middleton and his Heirs and also charged with 150 l. more towards binding out of his Brother Benjamin an Apprentice when and so soon as he shall attain to the Age of Sixteen Years but with no other Charge or Payment whatsoever And further devises That in case any of his said younger Children Sons or Daughters shall happen to die before he she or they should attain the full Age of Twenty One Years or be married then and in either of the said Cases he did will and devise that Part or Share with the Profits thereof of him her or them so deceasing as aforesaid to the Survivor or Survivors of all his aforesaid younger Children Share and Share alike chargable nevertheless with the several Payments as aforesaid but liable to no other Charge or Payment whatsoever And all the rest of his Shares in the said New-River Water he gives to his eldest Son Hugh and his Heirs so that he permit
All their Arguments will hold as well to a Month Week or Days surviving of the Mother as to this of two Years and therefore it must be thus construed to be her Intent that the Devises over should take effect if the Child should not live to an Age of Maturity and Power of Disposition And as to the pretence of the Child's starving in the mean time there neither is nor can be any weight in that for the Interest and Produce of the whole during all that time must remain and be to and for the benefit of the Child Wherefore upon the whole Matter 't was prayed that the Decree should be affirmed and it was affirmed Philip Jermin and Sarah Vxor ejus ' Plaintiffs Versus Mary Orchard Widow Defendant WRit of Error to Reverse a Judgment of Reversal given in the Exchequer Chamber upon a Judgment given in the Kings Bench for the Plaintiffs in an Action of Trespass for the mean Profits after a Recovery in Ejectment and Possession had thereupon The Case was this upon Record The Plaintiffs declare that the Defendant 1 Sept. 1672. their Close c. vi armis c. did break and upon the Possession of the Plaintiff did enter and the Plaintiffs from their Possession did expel and remove and them so being removed and expelled for a long time viz. from the said 1 Sept. 1672. to the time of exhibiting the Bill viz. 6 May 1685. did hold out from the same by which they lost the Prosits thereof c. Et al' Enormia c. The Defendant by Plea takes Issue as to the Force and Issue thereon and as to part of the Trespass pleads the Statute of Limitations and as to the residue of the Trespass pleads that Sir William Portman made a Lease to one Trowbridge for 1000 years and by mesne Assignments derives a Title down to Thomas Nicholas and that he in his Life time by Indenture assigned to the Defendant The Plaintiffs Reply and as to the first part of the Plea viz. of the Statute of Limitations they demur and as to the other part of the Plea they tender a Traverse and deny that Thomas Nicholas did assign the Premisses to the Defendant The Defendant joyns in Demurrer as to the first part of the Plea viz. the Statute of Limitations And as to the other part she takes Issue upon the Traverse which Issue is joyned and a Venire awarded tam ad triand ' the two Issues quam ad inquirend ' de dampnis upon the Demurrer The Jury find that Thomas Nicholas was possessed in manner as the Defendant in her Plea hath alledged and that he did make Seal and as his Deed deliver the Indenture in the Plea mentioned which said Indenture follows in these words and so set forth the whole in which after a Recital of the Lease and a Deducement of the Title down are these words viz. The said Thomas as well for and in consideration of the natural Love and Affection which he beareth to the Defendant his Grand child as for other good Causes and Considerations hath granted assigned and set over and by these Presents doth grant assign and set over unto the said Mary her Executors Administrators and Assigns all the said Cottage Barn and Lands and all and singular other the Premisses herein before recited or mentioned with the Appurtenances to the same belonging or appertaining together with the said recited Lease and all Writings and Evidences touching the Premisses to have and to hold the said Cottage Barn and Premisses and every part thereof with the Appurtenances unto the said Defendant Mary her Executors Administrators and Assigns from and immediately after the Death and Decease of the said Thomas Nicholas party to these presents and Mary his Wife unto the end of the term and for and during all the rest and residne of the said term of 1000 Years which shall be therein to come and unexpired by and under the yearly Rents Covenants c. expressed in the said Original Indenture of Lease Then the Jury leave it to the Court whether the Deed of Assignment be good in Law or not and conclude specially if the Assignment be not good in Law then they find for the Plaintiffs and Assess Damages 50 l. and 40 s. Costs and thereupon c. And now it was argued for the Plaintiff and it was said in the first place That this Case was extraordinary that tho' the Majority of the Judges in Westminster-hall were of Opinion with the Plaintiffs yet they were forced to sue this Writ they had the four Judges of the King 's Bench and the then Mr. Justice Powell and the then Baron Powell concurring with the King 's Bench and the chief Baron Atkins being absent the other Five in the Exchequer-Chamber reversed the Judgment it having been resolved upon the Stat. of Eliz. which erects that Jurisdiction That the Concurrence of six are not necessary to reverse but only that six must be present to make a Court so that here were six to five for the Plaintiff and yet he hath lost it Then it was argued That there had been two Things insisted on below one was the finding of Damages generally and the other was as to the Validity of the Assignment and as to the finding it was said That the Matter of the Force is meer Form and if there had been no non prosequi the same could not make an Error That in C. B. and B. R. the Issue upon the vi armis c. is seldom or never taken notice of no Entry is made of it upon the postea at all unless a wounding or some such other special Matter were mixt with it in the same Issue That 't is held in the Case of Law and King 1 Saund ' 81. If nothing be answered to the vi armis in a special Plea 't is well upon a general Demurrer and the 7 Hen. 6. 13. and 1 Hen. 7.19 are plain That if the Party have the special Matter which he pleads found for him the vi armis shall not be inquired of So if the Defendant have Judgment against him upon Demurrer to the special Matter pleaded by him the vi armis shall never be tried tho' Issue were joyned upon it but the Party shall be fined upon the Capiatur c. without any Inquiry So is the King and Hopper 2 Cro. 599. in a Scire Facias on a Recognizance for the good Behaviour special Matter pleaded held That the Jury need not inquire about the vi armis if such Special Matter be found for the Defendant much more is it so in case it be found for the Plaintiff for there the Act which is found imports it c. and it shall be intended to be vi armis c. and the Book of Hen. 6. is full in it no need of any Inquiry in such Case And in this Point both the Courts having concurred the Counsel for the Defendant did not contest