Cornwallis v. Hoswood, 1 N.C. 226, 1 Mart. 226 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 226, 1 Mart. 226

Cornwallis vs. Hoswood, vel Hamond.

Mich. 3 Car.

THE plaintiff counted of a lease made to Anthony Hubart, whereupon he was possessed until the defendant ejected him. On non culp. a special verdict was given, to wit. That Jacobus Hubard, being seized in fee of the manor, granted the nine acres whereof, &c. is a parcel, and devisable by custom, &c. and committed voluntary waste, &c. Jacobus Hubard died, and Anthony is his cousin and heir, but they do not find that Jacobus died seized, or the land descended to Anthony; and this they present to the court. Anthony entered on the nine acres, being seized of the manor, and leased to the plaintiff, and J. H. entered on him, and whether his entry was lawful or not, the jury doubt.

It was said that the heir shall take advantage of this forfeiture, for a right of action which is a mere foreign remedy, descends to the heir; a fortiori a title of entry. F. N. B. *149. 10 E. 4. 9. 38 E. 2. 39. 29. Ass. 32. 10 Ass. 20. 43 Ass. 45. 50 E. 3. 4. 19 E. 4. 15. 46 E. 3. 4. F. N. B. 144. 18 Eliz. Harper’s reports. There was a lord, and two coparcener copyholders; one of them made a feoffment, and the lord made a lease of the manor. The lessee shall not take advantage of this forfeiture, for he is, not privy to the title. But if the lessor dies, his heir shall take advantage of it. E contra. The heir in this case shall not take advantage of the forfeiture, in the life of the ancestor. The cases put, are those of inheritance, which descends to the heir: here is a new right of entry, an estate at the will of the lord. But this is a personal misdemeanor, and moritur cum persone. It is not found that he died seized, and that A. is his cousin and heir: so he may be, and yet enter by force of a feoffment. It was said e contra, that the commission of waste gives a freehold, which is nor personal; but is a forfeiture in respect to the tort done to the freehold. As to the point, where a seisin in fee is supposed in one, the law intends that it remains in him until his death. Sed adjournatur.

Doderidge, J.

The cases cited, where the heir shall have a right of action and entry are not like this. For here it is no forfeiture until the lord chuses to tnake it so. The heir of the reversion shall not have waste at common law, although Rastal, Waste, 7 Stat. De Waste, 20 Ed. 1 p. 397. says he shall have it.

Hitcham, Serj.

This action is rather in the personalty, and the damages are the principal object, and this has not yet been settled by any statute.

Doderidge, J. Can the lord, in this case, enter without a presentment, by the homage?

Hitcham. The presentment is to notify the lord, not to entitle him. He may take notice if he pleases.

Doderidge, J. If tenant commits waste and repairs, can the lord enter?

Hitcham. It was once a forfeiture and remains so. It is not like waste at common law. For there, if he repaired before the jury had view, it was well enough: and if the condition was that the tenant should not commit waste, and he committed waste and repaired, the reversioner could not enter.

Jones, J.

It is a very mischievous case, if the lord is permitted to claim ancient forfeiture, after a long time and many descents. On the other part it is not reasonable that he shonld be abridged of his right. Sea adjournatur. Bendl. 148. 1 Roll 699. Palm. 416.