Britton v. Ridgery

4 H. & McH. 503

Opinion

MAY TERM, 1768.

This was an action of debt on the statute of 32 Henry fill. ch. 9, for purchasing a pretended title, in fee, of Absalom Boreing.

The declaration states, «that the said JY. Britton oh the 27th of July 1765, at, &c. was seised for one whole year then last passed of a tract of land called Boreing9» Forrest, containing, &c. lying in, &c. and also of one other tract of land called Cuckoldmaker9s Hazard, containing, &c. lying in, &c. and also of one other tract of land called Boreing9s Gift, &c. and the rents and profits of the said lands, and every of them, for the whole time aforesaid., and long before, had taken and received to his own proper use and behoof. Nevertheless a certain Absalom Boreing of, &c. not having any right or title to the said lands, or either of them, hut pretending a right and title to the same, did on the day and year aforesaid, at, &c. enter upon the said lands, the said N. B. of the said lands being then seised, and the possession and seisin of the same having then and continually before kept and bad, and the said A. did then and there, by a certain instrument of writing, grant, bargain, sell and convey, unto the said C. R, &c. the several tracts of land aforesaid, with their, &c. and the said instrument of writing the say ¿y then raid there seal and deliver to them the said C. R, &c. as the act and deed of him the sain A. when neither the said A. nor his ancestors, nor thos by whom the said A. claims, had been in possession of the said tracts of land, or either of them, or the reversion or remainder thereof, or taken the rents and proliis thereof, by the space oi one whole year before the said entry and sale as aforesaid, against the form of the statute in such case made and provided. And the aforesaid C. II, &c. well knowing the premises, afterwards, to wit, on, &c. at, &c. the said instrument of writing so sealed and delivered as afoivfju.il, did take and accept of him the said A. and the said several tracts of land of him the said A. and his pretend; d right and title to the same, did then and there buy, against the form of die statute in such case made and provided. And the said N. B. who as well, &c. further saith, tli.it the said lands, at the time of the sale and purchase aforesaid, were and still are of the value of 1500Í. sterling aforesaid. By reason of which,” See.

The defendants pleaded non mil. and issue was joined. At the April ass.zes a special verdict was found, stating the following facts, viz. 1. The patent of Boreing’s Forest to John Boreing, junior, 23d of September 1747.

2. The patent of Cuckold-maker’s Hazard to John Boreing, junior, 20th of May 1725.

3. The patent of Boreing’s Gift to John Boreing, junior, 3th of May 1730.

6. That Absalom Boreing entered into the lands, was seised in fee, and possessed the same, until some time in 1761.

9. That Britton, by and with the consent and agreement of Boreing, possessed and occupied the same until Boreing’s deed to the defendants on-the 27th of July 1765.

10. That Avarilla Boreing, widow of John Boreing, mother of Absalom, then in his minority, being entitled to her dower in the above lands, and having received the rents thereof after the death of John Boreing, no assignment of hep dower in the said lands, or any part thereof, Waving ever been made, on the 12th of March 1763, conveyed her right and title of dower to Britton, and claiming her right of dower, actually delivered him possession thereof.

11. That Absalom Boreing, after hé came to the age of 21 years, to wit, on the 11th of February, 1765,. made a contract with Britton for the absolute sale of the lands, and gave his bond dated the same day.

12» That Britton, in consequence of the agreement made with Boreing in his minority, and also under the deed from Jtoarilla Boreing, and under and by virtue of the bond made after full age, continued in the actual occupation of the lands until the deed to the defendants of the 27th July 1765.

17. That the defendants accepted the deed, had the same acknowledged and recorded, and have since claimed the lands by virtue thereof.

The defendants attornies made three ejections, to the-declaration.

1st. Because it is not shewn or alleged in the declaration that the defendants were not in possession for one whole year before, &c. — -Vide Stat. 32. Sen. VIH. c, 9, and IL F. C. 265, pi. ) 7.

2d. Because, it is alleged in the declaration, that Boreing on the 27th July 1765, entered upon the lands, and then and there by an instrument of writing did sell to defendants, and did then and there seal and deliver to the defendants.

Sd. Whether as a moiety of the forfeiture is given to the King by the statute, the suit should not be in his name. 7 Co. 35, b. 36, a. Davis, 69. Hard. 448. 1 Sid. 6. 3 Inst. 186, 7. Act of assembly 1716, e. 3.

Q/aere — Whether “well knowing the premises” is a sufficient averment that the defendants knew that Boreing had not been in possession a year before. Vide H. pi. 164, s. 9*

To shew that the plea of non cul was a good.plea, they cited Co. Ent. 160. Hands. 82. Godb. 144, pi. 180. Jo. 320. Cro. Car. 314. 2 Roll. Ab. 682. Freeman, 129, pi. 150. Hard. 231. Hob. 218 in point. Cro. Eli». 271, Savory vs. Toy.

Upon the specialver diet, the following points were raised

Fourthly. Whether the deed was not a determination of Britton's estate at will?

Fifthly. Whether the action can be maintained on the statute of 32 Hen. VIII. cap. 9? '

Sixthly. Whether the lease of an infant, without reservation of rent, is void or voidable?

Seventhly. What is a pretended right or title within the statute?

Eighthly. Whether Britton was a disseisor.

Ninthly. That the verdict has not found any act done by the defendants contrary to the statute.

The case was discontinued by consent, without costs.