Surry v. Cole, 1 N.C. 255, 1 Mart. 255 (1793)

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

1 N.C. 255, 1 Mart. 255

*Surry vs. Cole.

Mich. 3 Car.

IN replevin, the plaintiff declared on a taking in October 21 Jac. in G. The defendant avowed as bailiff of Thomas Surry, and shewed that F. S. was seized of the premisses in his demesne as of fee; and being so seized, gave them to Ed. Surry and the heirs male of his body, begotten on his wife; who had issue I. S. and died. I. S. made a lease for twenty one years to Brown, reddendo, et solvendo inde annuatim, durante termino prædicto, to the said I. S. and his assigns, so much rent. The lessee entered, afterwards, I. S. levied a fine to Yateman, to whom Brown, the lessee attorned, whereby he was seized, and afterwards 11 Jac. one Heron brought a præcipe against Yateman, &c. and a common recovery passed. This recovery, was found to be to the use of Yateman and his heirs. Afterwards Yateman granted a recovery to Thomas Surry, in whom the right, &c. for fourteen years, to which grant the lessee attorned; and for rent arrear after the grant, the taking, &c. On a demurrer three questions arose.

1. A man makes a lease for years, rendering rent, durante termino prædicto to the lessee and his assigns, 10s. The lessor assigns the reversion over and dies: Whether the rent is determined?

Backsdale. It is not. Reservation is restitution: and reservare est acceptum restituere, 10 Rep. 128. Clun’s case. Restitutions have favourable constructions; melius than grants. Advousons, without express words pass in case of restitutions, not in cases of grant. 41 E. 3. 5. M. 3. Jac. C. B. inter Barker and Barret. One made a lease for one year, from year to year, rendering rent therefore as long as the lessee shall occupy. The lessee, after the first year died ; his administrator entered and occupied another year: adjudged that he shall be charged for the rent, although the words were as long as the lessee shall occupy. So the reservation is taken more widely than the words. 5 E. 4. 4. Two joint tenants leased for years rendering rent to one of them, it shall enure to both, aliter, if it was by indenture, as in Littleton 346. Peck 652. In a feoffment to the use of the feoffor; it is clear that the use shall revert to him in fee. P. 4 Jac. *B. R. 112. Hill and Hill. A husband made a lease for years rendering rent yearly, during his life and wife’s life, &c. and died. The wife (having free bench) by custom) brought debt. Adjudged that she shall recover the rent and have free bench. P. 21. Jac. Hamson and Bert, B. R. Lessee for years rendering rent quotibet dimidio anni, without saying annuatim; yet it shall be rendered during the whole term, ut Com. 23, and the words to the lessor or his assigns, do not restrain it. For during the term, is in the first place. 2 E. 3. Feoffments, 54. Grant in frank-marriage, habere in fee is frank-marriage, 5 Rep, 111. Reservation to the lessor, or his successors during the term, is to both, aliter, if the words during the term, were left out. 28 H. 8 19. Lease reserving his dwelling, his executor shall not have it, aliter, if it had been during the term. Secondly: The words here spoken are in the affirmative, and not in the negative. 28 H. 8. 19. Lease for years, the lessor covenants that the lesse shall have hedge-bore by assignment; he shall have it without. So here, as to the case of Wotton vs. Edging, C. B. Hill 4. rot. 3017, vel 3077. Postea, p. 274. Lease for years rendering rent to the lessor and his assigns. It is determined by the death of the lessor, for the words durante termino are wanting. So Butcher and Richmond’s case, C. B. Lease for years rendering rent to the lessor, his executors and assigns. The lessor died; the heir distrained, held bad quia the word executors excludes the heir

2. Whether by pleading this, the lessor shall be intended to be dead?

-He He shall not. For it is shewn that he was once in life and if he is dead since, the other party shall shew it. Dyer 329. 38 H. 6. 27. Com. 400. Although an avowry to any intent is a title; yet it is brought in bar, and shall be taken in common intent. Com. 430. Avowry, without averring the death of the husband; for an avowry is an excuse, as well as a title. But here are words which imply the life of the lessor; and it being admitted that the rent shall determine by the lessor’s death, none can be in arrear after it. 12 Jac. B. R. Arundel’s case. One avow ed as heir, without shewing the death of his ancestor, but only, avowed for so much rent, retro exislens; and this was held a suffecient averment: so in 10 Rep. 58. Bishop of Sarum’s case, in a second deliverance, the defendant avows by a grant of the Bishop. The plaintiff shews that the grant is well by 22 H. 8. per quod concess. prædict. per A. nuper Episcopum is void; which is a sufficient averment of the death of the Biship.

*3. He shews a fine from I. S. to Yateman and his heirs, against whom a common recovery was had, &c. without shewing to what uses: Then it shall be understood against the pleader, viz. that it was to the use of the conusor, and it is as if there was no use, &c.

E contra. By the fine the conusee has a fee, which shall be intended to continue until the contrary be shewn. The estate does not alter the pleading. The distinction is, that where the use is to a stranger, it shall not be understood, unless it be shewn; aliter when it is to the conusee. Liber intrat. 324, 2. Rep. 28. The pleading is accordingly.

Beer.

If the lessee had said no more than rendering 10s, it had been as much and as effectual as if he had said ren dering rent during the whole term. 31 Ass. 30. tenend. made a tenure in fee, without any more. 636 Com. 137. 21 H. 7. 25. 27 H. 8, 19. in point. Then the addition of these words: durante prædicto, non operator, for they were implied before. 4 Rep. 72. Burrough's case, 8 Rep. 144. Davenport’s case. If a lease be made rendering rent to a stranger, it is void; the assignee being a stranger, the reservation is void. Here is an entire sentence, and shall not be divided. Butcher’s case. H. 33. rot. 1316, is on the same point; resolved that it was only a reservation for life, Likewise in Wotton's case, supra, adjudged. T. 3 Jac. rot. 377. Here it is præsato Johanni. A reservation is more strong against the lessor, ut Boston’s case, Com. 139. Two tenants in common lease, rendering rent 10s. they shall have only 10s. 27 H. 8. 19. 11 E. 3. F. Ass. 84. Stacy and Clark’s case. T. 36 E. rot. 987, in B. R. Tenant by curtesy, and the heir in reversion in tail, made a lease, rendering rent to them and their heirs; on account of the generality of the reservation, the lease was not held good, under the statute. Thompson’s case, antea, p. 45. As to Mallory's case. 5 Co. 111. shall be taken copulatively. I deny the case, 5 E. 4. 1. The life of the lessor shall not be intended. For the avowant is to make out a good title. This differs from the case of an arbitration. He who is to have the benefit shall plead. In 38 H. 6, the action is maintained on the first possession. 9 E. 4. 6. 160 He who claims from the tenant in tail, by whole estate, ought to aver his life.

E contra. It is implied: for he says that ei a retro, &c.

This is only form and supposition; it is a conclusion which we could not traverse. The last point formerly moved, viz. that the use, where none is expressed, results to the conusor, is unanswered, Postea, p. 264.