Legal Case: Asher v. Whitlock - Devisable Interest in Land and Possession Rights, Study notes of Law

Download Legal Case: Asher v. Whitlock - Devisable Interest in Land and Possession Rights and more Study notes Law in PDF only on Docsity! CASES DETERMINED BY THE COURT OF QUEEN'S BENCH AND BY THE COURT OF EXCHEQUER CHAMBER ON ERROR AND APPEAL FROM THE COURT OF QUEEN'S BENCH, IN AND AFTER MICHAELMAS TERM, XXIX VICTORIA. ASHER AND WIFE v.WHITLOCK. 1865 Effectment—Title by mere Possession—Devisable Interest in Land. Nov. 3. A person in possession of land without other title has a devisable interest; and the heir of his devisee can maintain ejectment against a person who has entered upon the land, and cannot shew title or possession in any one prior to the testator. W. in 1842 inclosed some waste land; in 1850 he inclosed more land adjoin ing, and built a cottage; he occupied the whole till 1860, when he died, having devised it to his wife, so long as she remained unmarried, with remainder to his daughter in fee. On his death, the widow and daughter continued to reside on - the property, and in 1861 the defendant married the widow, and came to reside with them. Early in 1863 the daughter died, aged eighteen years, and the mother died soon after. The defendant continued to occupy the property, and in 1865 the daughter's heir-at-law brought ejectment against him: Held, that the plaintiff was entitled to recover the whole property. EJECTMENT for a cottage, garden, and premises, situate at Keysoe Row, in the parish of Keysoe, in the county of Bedford; the writ stated that the female plaintiff claimed possession as heir-at-law of Mary Ann Williamson, an infant deceased. The defendant defended for the whole. At the trial before Cockburn, C.J., at the last Bedfordshire Wot, I. B 1 COURT OF QUEEN'S BENCH. [L. R. 1865 Spring Assizes, the following facts appeared in evidence. About TAsimº T Michaelmas, in the year 1842, Thomas Williamson inclosed from wn..…. the waste of a manor a piece of land by the side of the highway; and in 1850, he inclosed more land adjoining, and built a cottage; the whole being the land as described and claimed in the writ. He occupied the whole till his death in 1860. By his will he devised the whole property, describing it as “a cottage and garden, in Reysoe Row, in which I now dwell,” to his wife Lucy Williamson, for and during so much only of her natural life as she might remain his widow and unmarried; and from and after her decease, or second marriage, whichever event might first happen, to his only child Mary Ann Williamson, in fee. After the death of Thomas Williamson, his widow remained in possession with the daughter, and in April, 1861, married the defendant; and from that time they a ll three resided o n the property till the death o f the daughter, aged eighteen years, in February, 1863. On her death, the defendant and his wife, the widow o f the testator, continued to reside o n the premises; the widow died in May, 1863, and the defendant still continued to occupy. The female plaintiff is the heir-at-law of the testator's daughter Mary Ann Williamson. The writ was issued 11th of April, 1865. These facts being undisputed, the Chief Justice directed a verdict for the plaintiff fo r the whole o f the property claimed; with leave to move to enter the verdict for the defendant, on the ground that the testator had n o devisable interest in any part of the property. A rule misi was afterwards obtained to enter the verdict for the defendant, on the ground that no title in the plaintiffs was shewn to either portion o f the land enclosed. Markby (Nov. 2nd), shewed cause. The testator, a t the time o f his death, had acquired n o title b y lapse o f time; and the point made and reserved a t the trial was, that the testator being only a trespasser in possession, had n o devisable interest; that his interest was a t most that o f a tenant a t will only; and that the devisee, if in possession, was only a new trespasser. But the authorities are conclusive to shew that a person in peaceable WOL. I.] MICH. TERM, XXIX VICT. was sufficient, to maintain ejectment against a person who came and turned him out, without any further proof of title.] 1865 ASHER In that case the possession of the defendant was obtained by win. force. Here it was simply adverse. [CockBURN, C.J. A person being peaceably in possession of a house, a person, going in and taking possession without his leave, commits a trespass, and all trespass implies force in the eye of the law.] CocKBURN, C.J. I am of opinion that this rule should be dis charged. The defendant, on the facts, is in this dilemma; either his possession was adverse, or it was not. If it was not adverse to the devisee of the person who inclosed the land, and it may be treated as a continuance of the possession which the widow had and ought to have given up, on her marriage with the defendant, then, as she and the defendant came in under the will, both would be estopped from denying the title of the devisee and her heir-at law. But assuming the defendant's possession to have been adverse, we have then to consider how far it operated to destroy the right of the devisee and her heir-at-law. Mr. Merewether was obliged to contend that possession acquired, as this was, against a rightful owner, would not be sufficient to keep out every other per son but the rightful owner. But I take it as clearly established, that possession is good against all the world except the person who can shew a good title; and it would be mischievous to change this established doctrine. In Doe v. Dyeball (1) one year's possession by the plaintiff was held good against a person who came and turned him out; and there are other authorities to the same effect. Suppose the person who originally inclosed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the absence of the then possessor, and were to say to him, “You have no more title than I have, my possession is as good as yours,” surely eject ment could have been maintained by the original possessor against the defendant. All the old law on the doctrine of disseisin was founded on the principle that the disseisor's title was good against a ll but the disseisee. It is too clear to admit of doubt, that if the (1) Mood. & M. 346. COURT OF QUEEN'S BENCH. [L. R. 1865 ASHER º. WHITLOCK. devisor had been turned out of possession he could have main tained ejectment. What is the position of the devisee? There can be no doubt that a man has a right to devise that estate, which the law gives him against a ll the world but the true owner. Here the widow was a prior devisee, but durante viduitate only, and a s soon a s the testator died, the estate became vested in the widow; and immediately o n the widow's marriage the daughter had a right to possession; the defendant however anticipates her, and with the widow takes possession. But just as he had n o right to interfere with the testator, so he had n o right against the daughter, and had she lived she could have brought ejectment; although she died without asserting her right, the same right belongs to hel heir. Therefore I think the action can be maintained, inasmuch a s the defendant had not acquired any title b y length o f posses sion. The devisor might have brought ejectment, his right o f pos session being passed b y will to his daughter, she could have main tained ejectment, and so therefore can her heir, the female plaintiff. We know to what extent encroachments on waste lands have taken place; and if the lord has acquiesced and does not interfere, can it be at the mere will of any stranger to disturb the person in possession ? I do not know what equity may say to the rights o f different claimants who have come in at different times without title; but at law, I think the right of the original possessor is clear. On the simple ground that possession is good title against all but the true owner, I think the plaintiffs entitled to succeed, and that the rule should be discharged. MELLOR, J. I am of the same opinion. It is necessary to dis tinguish between the case o f the true owner and that o f a person having n o title. The fact of possession is primá facie evidence o f seisin in fee. The law gives credit to possession unless explained; and Mr. Merewether, in order to succeed, ought to have gone o n and shewn the testator's title to be bad, as that he was only tenant a t will, but this h e did not do. In Doe v. Dyeball (1) possession for a year only was held sufficient against a person having n o title. In Doe v. Barnard (2) the plaintiff did not rely o n her own possession merely, but shewed a prior possession in her husband, with whom she was unconnected in point of title. Here the first (1) Mood & M . 346. (2) 13 Q . B . 945; 18 L. J. (Q. B.) 306. WOL. I.] MICH. TERM, XXIX WICT. possessor is connected in title with the plaintiffs; for there can be no doubt that the testator's interest was devisable. In the common case of proving a claim to landed estate under a will, proof of the will and of possession or receipt of rents by the testator is always primá facie sufficient, without going on to shew possession for more than twenty years. I agree with the Lord Chief Justice in the importance of maintaining, that possession is good against all but the rightful owner. LUSH, J., concurred. Rule discharged. JENNINGS v THE GREAT NORTHERN RAILWAY COMPANY. Railway Company—By-law—Breach of Contract. A by-law of the defendants, a railway company, was as follows: “No passenger will be allowed to enter any carriage without having first paid his fare and obtained a ticket. Each passenger, on payment of his fare, will be furnished with a ticket, which such passenger is to shew when required, and to deliver up, before leaving the company's premises, upon demand.” The plaintiff took tickets for himself, his servants, and horses, by a particular train, on the defendants' railway. The train was afterwards divided into two. The plaintiff travelled in the first train, taking all the tickets with him. When the second train with the servants and horses was about to start, the plaintiff's servants were required to produce their tickets, and on their being unable to do so , the defendants refused to carry them: Held, in an action by the plaintiff for not carrying his servants, that as the defendants contracted with the plaintiff, and delivered the tickets to him and not to the servants, the defendants could not, under the by-law, justify their refusal to carry. THE declaration contained several counts; the second only is material, and was for not carrying the servants o f the plaintiff from Lincoln to Peterborough within a reasonable time, pursuant to their contract with him. The defendants pleaded:— Fifthly, to the 2nd count: that b y one o f their by-laws, made under their Act of Parliament, and of which the plaintiff had due notice, it was ordered a s follows: “No passengers will be allowed to enter any carriage used o n the railway, o r to travel therein upon the railway, without having first paid his fare, and obtained a ticket; each passenger o n payment o f his fare will be 1865 ASHER º. WHITLOCK. Nov. 4.