Stapleford's Lessee v. Holliger

Delaware Court of Common Pleas

Stapleford's Lessee v. Holliger

1 Del. Cas. 163, 1797 Del. LEXIS 28

DecidedNovember 23, 1797

StatusPublished

This text of 1 Del. Cas. 163 (Stapleford's Lessee v. Holliger) is published on Counsel Stack Legal Research, covering Delaware Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stapleford's Lessee v. Holliger, 1 Del. Cas. 163, 1797 Del. LEXIS 28 (Del. Super. Ct. 1797).

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Opinion

Bassett, C. J.

Gentlemen, in this cause there are two points. No doubt the deed from Gordon and wife and Stapleford to Stapleford and Walton created a joint tenancy, and the law is clear that upon the death of the one the estate survived to the other. A purchase by two jointly seems as if upon a wager the longest liver takes the whole, but they may divide during their lives, but it must be by deed; otherwise, the joint estate must survive, nor can a joint tenant devise his jointure, for the devise cannot take effect until death of devisor, and then the estate has gone by survivorship. Joint tenant devises and then severs, the devise is void. 3 Burr. 1488. Unless a partition is made by deed, the survivor takes the whole.

As to limitation, much has been said on both sides; where there is a possession it is sufficient for a plaintiff or defendant, but it must be clearly proved, and it must be peaceable. If you are of opinion defendant has had this peaceable and quiet possession, you must find for defendant; but you must be satisfied, and we shall not throw out anything to affect that question.

There has been no testimony of a division until after the death of John Walton. If a partition could then have been made, it would have had no effect.

There was a verdict for the defendants.

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Bassett, C. J.

Gentlemen, in this cause there are two points. No doubt the deed from Gordon and wife and Stapleford to Stapleford and Walton created a joint tenancy, and the law is clear that upon the death of the one the estate survived to the other. A purchase by two jointly seems as if upon a wager the longest liver takes the whole, but they may divide during their lives, but it must be by deed; otherwise, the joint estate must survive, nor can a joint tenant devise his jointure, for the devise cannot take effect until death of devisor, and then the estate has gone by survivorship. Joint tenant devises and then severs, the devise is void. 3 Burr. 1488. Unless a partition is made by deed, the survivor takes the whole.

As to limitation, much has been said on both sides; where there is a possession it is sufficient for a plaintiff or defendant, but it must be clearly proved, and it must be peaceable. If you are of opinion defendant has had this peaceable and quiet possession, you must find for defendant; but you must be satisfied, and we shall not throw out anything to affect that question.

There has been no testimony of a division until after the death of John Walton. If a partition could then have been made, it would have had no effect.

There was a verdict for the defendants.

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Bluebook (online)

1 Del. Cas. 163, 1797 Del. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/staplefords-lessee-v-holliger-delctcompl-1797.