brown case Cyprian tailor they I atkins plaintiff in error thomas horde and  other defendant in error that January Mews dig way tailor d atkins v Horde Sm  l c that Edward see Simpson v Bathurst lr Ch of bar v shey lt weller v stone l  I Ch and now and will go c under what circumstance a right of entry be bar by  the statute of limitation and in what case a defendant in ejectment may have  the benefit of that statute without special plead it judgement of the court of  king b affirm after this determination the lessor of the plaintiff and all his  brother die without issue and then suppose the recovery in question to be void  Mr Edward Kinsey atkins the then heir at law of Mr Richard atkins become  entitle to the estate he claim under a new title and therefore be not bind by  the statute of limitation a ejectment be deliver by he in Hilary term this  bring the question of the validity of the recovery once more before the court  who determine it to be fraudulent and void see Inst b n where the opinion of  the court of king b on certain point of this case be very able controvert see  burr Cowp in Michaelmas term Mr atkins bring a ejectment in the name of the  say Cyprian tailor as plaintiff against the defendant for the manor of swell  inferior otherwise Nether swell and diverse message land tenement tithe and  hereditament in the county of Gloucester upon a demise make by atkins on the  that of December for the term of year the defendant appear and plead not  guilty upon which issue be join and on the d of may the cause be try at the  bar of the court of king bench when a special verdict be find to the effect  follow videlicet that sir Robert atkins the elder be seize in fee of the say  manor and premise by indenture date the that of June make between sir Edward  atkins knight one of the baron of the exchequer the say sir Robert atkins son  and heir apparent of sir Edward and dame mary the wife of sir Robert of the  one part and sir Edward Carteret knight and John low gentle of the other part  in consideration of a marriage thentofore brown have between sir Robert and  dame mary and of her release and acquit a former jointure and bar of dower sir  Robert atkins thereby covenant with sir Edward Carteret and low their heir and  assign that sir Edward atkins and sir Robert and dame mary his wife shall  before of end of Michaelmas term then next levy a fine or fine of the premise  in question which shall enure to the use of sir Robert the elder for life  without impeachment of waste remainder to dame mary for life for her jointure  and in bar of dower remainder to sir Robert atkins the young son and heir  apparent of sir Robert the elder and the heir male of his body on the body of  lovis Carteret his intend wife to be beget remainder to the right heir of sir  Robert atkins the elder and by this deed sir Edward atkins and sir Robert the  elder covenant with sir Edward Carteret and low and their heir as follow  videlicet that in case any defect shall happen in the say fine and this  present assurance or in case there shall not be some good conveyance in law  make accord to the intent of these present so that by reason of such defect or  failure of such conveyance and assurance in law the say manor and premise or  any part or parcel of they brown er p shall not before the that day of  November now next ensue be sufficient convey accord to the intent of these  present that then they the say sir Edward Carteret and John low and their heir  and all and every other person and person and their heir stand or be seize or  which shall stand or be seize of and in the say manor and premise shall and  will from time to time and at all time from thenceforth for ever stand and be  seize of and in the say manor and premise or so much and such part and part  thereof whereof or concern which any such defect shall happen to be to the use  behoofs intent and purpose herein before declare limit and contain accord to  the true intent and meaning of these present and to none other use intent or  purpose whatsoever by indenture of lease and release date the that and that of  June and by way of distinction call the great deed between sir Edward atkins  sir Robert the elder and dame mary his wife Philip Sheppard sir clement  Farnham and Edward atkins esquire second son of sir Edward of the first part  sir George Carteret sir Edward Carteret John low Edward Montagu esquire call  lord Hinchingbrok sir Philip Carteret and Edward swift esquire of the second  part and sir Robert atkins the young and lovis Carteret of the three part in  consideration of a marriage thentofore have between sir Robert the elder and  dame mary and of a intend marriage between sir Robert the young and the say  lovis Carteret and of pound pay to sir Robert the elder as her marriage  portion and for a provision for dame mary in nature of a jointure and in bar  of dower and also for a like provision for the say lovis Carteret and for  settle all the manor land and hereditament thereby brown convey to the several  and respective use upon the trust to the intent and purpose and with under and  subject to the proviso declaration limitation and agreement thereinafter  contain the say sir Edward atkins and sir Robert the elder grant release and  confirm to sir Edward Carteret and low and their heir the premise in question  and several other manor land and hereditament therein mention and sir clement  Farnham Edward atkins and Philip Sheppard by the direction of sir Robert the  elder grant release and confirm to sir Edward Carteret and low and their heir  several other estate as to the premise in question to the use of sir Robert  atkins the elder for life without impeachment of waste remainder as to the say  premise except timbertrees to dame mary for life for her jointure and in bar  of dower remainder to sir Robert the young and the heir male of his body by  the say lovis Carteret remainder to the right heir of sir Robert the elder and  several other part of the estate be thereby limit to sir Robert the young for  life remainder to trustee to preserve contingent remainder remainder to lovis  Carteret for life for her jointure and in bar of dower and then to the issue  of the intend marriage in strict settlement and in this indenture be contain a  proviso in the follow word provide always that it shall and may be lawful to  and for the say sir Robert atkins the father the say sir Robert atkins the son  and the say lovis Carteret respective when they be or shall be respective  seize in possession of the freehold of such of the premise as by virtue of and  accord to the limitation aforesaid be respective limit to they for their  respective life by their respective deed or deed in write seal and deliver in  the presence of two or more credible witness to make any lease or demise lease  or demise of all or any of the say premise whereof they shall be so respective  seize in possession for life as aforesaid except of the capital message of  Sapperton aforesaid and the lodge in Pinbury park aforesaid unto any person or  person for one two or three life in possession reversion or remainder or for  any time or term of year in possession reversion or remainder to end or  determine upon the death of one two or three person or for the term of one and  twenty year absolute so as there be not in the respective premise or any part  thereof any estate exceed the term or time of three life or one and twenty  year in be at the same time and so as such respective lease be not make  without impeachment of waste and so as the usual rend of such of the premise  respective as shall be so lease or demise upon fine and the best rend that can  be reasonable get for such of the premise respective as shall be so lease or  demise without fine be respective reserve upon every such respective lease or  lease demise or demise brown er p to be Payable during the respective term in  the say respective lease or demise to be brown contain any thing herein before  contain to the contrary notwithstanding and by this deed a power be give to  sir Robert atkins the father after the death of dame mary to limit the premise  in question unto or to the use of any woman or woman he shall marry for life  for her or their jointure or jointure and a like power to sir Robert the son  after the death of lovis Carteret And sir Robert the father covenant that he  and dame mary will levy a fine of all the premise to the several use  aforesaid And after recite that sir clement Farnham and Edward atkins be  possess of the premise in question or several part thereof for several term of  year then in be in trust for sir Robert the father that sir clement Farnham  and Edward atkins shall stand possess of the premise comprise in the say term  during the residue thereof upon trust and to the use and benefit of the person  and person to who the premise by virtue of the limitation therein before  mention shall belong the jury further find that the first of the say indenture  be execute by sir Edward atkins sir Robert atkins the father and dame mary his  wife and John low the second videlicet the lease for a year by sir Edward  atkins sir Robert the father Philip Sheppard sir clement Farnham and Edward  atkins esquire and the release by sir Edward atkins sir Robert the father dame  mary his wife sir clement Farnham Edward atkins esquire sir George Carteret  sir Philip Carteret Edward swift sir Robert the son and lovis Carteret and  that the lease for a year be execute before the release that in Trinity term a  fine be levy wherein sir Edward Carteret and low be plaintiff and sir Edward  atkins sir Robert the father and dame mary his wife deforciants of the premise  in question and other land that on the that of July sir Robert atkins the son  marry lovis Carteret and that dame mary the wife of sir Robert the father die  on the d of march that sir Robert the father be seize of the premise in  question as of freehold for the term of his natural life without impeachment  of waste on the that of April duly execute a indenture under his hand and seal  attest by three witness between himself of the one part and sir Robert Dacres  John Dacres and Ann Dacres their sister of the other part whereby recite the  indenture of release of the that of June and his power therein reserve of make  a settlement of the premise in question on a future wife in consideration of a  then intend marriage between he and the say Ann and of her marriage portion  sir Robert the father in pursuance of his say power limit the say premise to  the say Ann Dacres for her life for her jointure and in bar of dower and  thereby covenant with sir Robert Dacres and John Dacres that he have not  release extinguish or make void the say power brown that sir Robert atkins the  father on the that of April marry the say Ann Dacres that sir Robert the  father be seize of the premise in question as of freehold for life without  impeachment of waste by indenture under his hand and seal attest by three  witness date the saint of may between himself of the one part Thomas Dacres  esquire old son and heir apparent of sir Robert Dacres and Robert Dacres and  John Dacres young son of the say sir Robert of the other part recite the  indenture of release of the that of June and the power of lease thereby  reserve sir Robert atkins the father in consideration of the rend reserve by  this deed and in pursuance of the say power and by virtue thereof and of all  and every power and authority whatsoever demise lease grant and to farm let to  the say Thomas Robert and John Dacres and their assign the premise in question  for and during the natural life of they the say Thomas Dacres Robert Dacres  and John Dacres and the life of the long liver of they yield and pay therefore  during the say term to the say sir Robert atkins party thereto and after his  decease to such person or person respective to who the say manor and premise  be limit accord to their respective estate and title the yearly rend of pound  at Michaelmas and ladyday by even and equal portion and in this lease be  contain the follow clause videlicet the true intent and meaning of this estate  or term for life so hereby brown er p grant and make to the say Thomas Dacres  Robert Dacres and John Dacres and the survivor of they be to preserve the say  remainder so limit in the premise by the say recite indenture to the right  heir of the say sir Robert atkins party to these present and to such person or  person to who the say sir Robert atkins party to these present shall any way  dispose of the same from be bar by any recovery to be suffer or by any other  act to be attempt or do for the bar of the same that John Dacres alone execute  a letter of attorney under his hand and seal date the that of June recite the  say lease and empower Thomas Barker to take livery of the premise from the say  sir Robert atkins the father for himself and for the say Thomas and Robert  Dacres and every of they in their name and for their use accord to the purport  and true meaning of the say recite indenture and to enter and take possession  of the say premise to the use of they and every of they he the say John Dacres  allow of all and every the act and act so do by the say attorney to be as  effectual and sufficient in law as if he have be personal present and have do  the same that sir Robert atkins the father be so seize and in possession as  aforesaid do in his own person deliver seize and possession of the say premise  unto the say Thomas Barker to the use of the say Thomas Robert and John Dacres  and of every of they and of the survivor of they as by a brown endorsement on  the say letter of attorney set out in the verdict appear but the jury find  that Thomas Dacres Robert Dacres and John Dacres the lessee name in the say  lease or either of they be never in possession of the premise in question  otherwise than by the say livery and seize so give by the say sir Robert  atkins the father as aforesaid and that they or either of they do not receive  or pay any rend for or in respect of the say premise and that the say lease be  not find in the custody of Thomas Dacres the survive lessee at the time of his  death that sir Robert atkins the father be so seize of the say premise and of  the remainder and reversion thereof as aforesaid make his will date the that  may attest by four witness and thereby among other thing give and devise in  the follow word I give and confirm unto my say wife dame Ann atkins all those  land tenement and hereditament in low swell aforesaid which be settle upon her  for her jointure before our marriage and I hereby further give and devise to  her for term of her life my manor of low swell and all the rest of my land  tenement and hereditament whatsoever in low swell aforesaid for term of her  life as a addition to her jointure and whereas I be seize of the remainder and  reversion in fee of the say manor of low swell and of the rest of the say land  tenement and hereditament in low swell so settle and by this my will give and  confirm to my say wife for her life which remainder or reversion after the  death of my wife be also further expectant upon a estate in the say manor and  land in special tail settle upon my son sir Robert atkins upon his marriage by  deed date that June and upon his son by his now wife and no otherwise and  whereas I have make a lease date the that day of June in the year of our Lord  execute by livery and seize to Thomas Dacres esquire and to Robert and John  Dacres gentle for the life of the say Thomas Robert and John Dacres and the  life of the long liver of they accord to a power I reserve to myself upon the  say settlement make upon the marriage of my say son sir Robert atkins now I  give and devise the say remainder or reversion and the benefit of the trust of  the say lesser for life to my grandson John Tracy the now young and second son  live of my soninlaw John Tracy of Stanway in the say county of Gloucester  esquire by my daughter Ann Tracy his wife and to the heir male of the body of  my say grandson by he to be beget and if my say grandson happen to die without  issue male then I give and devise the say remainder or reversion to the next  young son of the say John Tracy my soninlaw call Ferdinando Tracy and to the  heir male of the body of the say Ferdinando and for default of such issue then  I give and devise the say remainder or reversion to the next young son my say  soninlaw John Tracy may happen to have by my say daughter and to the brown  heir male of the body of such next young son on condition of their respective  take and use the surname of atkins and to the same person and in such order  one brown er p after the other with the like limitation of estate and upon the  same or like condition I do further give and devisee all my house and all my  land tenement and hereditament situate lie and be in or near cursitor alley in  Holborn within the city of London or the suburb thereof or within the county  of Middlesex or in either of they and then recite that the reversion or  remainder of his manor and land in Sapperton aforesaid and of the advowson of  the church of Sapperton and of and in his manor of Pinbury and of the land  thereto belong as also of Pinbury park be in he and his heir and also of the  seven hundred of Cirencester and of the hundred of Bisney all in the say  county of Gloucester he devise the same in like manner and then go on I have  also make a lease for life of the say manor of Sapperton and Pinbury and of  the say advowson of Sapperton and of the say Pinbury park and of all the say  several hundred the better to preserve and support the remainder and reversion  from be cut off or bar by any recovery and if my say young grandson happen to  die without issue male then I give and devise the same reversion and remainder  to my nephew Richard atkins old son of my late brother sir Edward atkins  decease and to his heir the jury find that John Tracy the devisee in the will  and John atkins the lessor of the plaintiff be the same person that sir Robert  atkins the father die on the that of February seize of the premise upon who  death dame Ann his widow enter thereon claim the same for her life for her  jointure under the indenture of the that of April and be in possession that by  indenture tripartite date the that of may and make between Richard atkins  esquire old son and executor of sir Edward atkins of the first part Joseph  walker of the second part and sir Robert atkins of the three part recite the  indenture of release of the that of June and that it be therein mention that  sir clement Farnham and Edward atkins be possess of several term of year in  the premise in question and that they be to stand possess thereof in trust for  such person and person to who the same be limit by the say indenture and  recite that sir Robert atkins claim the premise by and under the say indenture  that sir clement Farnham be dead and sir Edward atkins survive he and be also  dead have make his will and thereof appoint the say Richard atkins executor  which he have prove the say Richard atkins at the instance and request of sir  Robert testify by his execute the say indenture and in consideration of S  assign the premise in question to walker his executor administrator and assign  for the residue of the brown say term in trust for sir Robert atkins and the  heir male of his body by lovis his wife that dame Ann be so in possession in  Trinity term a ejectment be bring in the common plea by John Phillips on the  several demise of sir Robert atkins and Joseph walker against her and the  tenant in possession for the recovery of the premise in question and the same  be try at the bar of the court of common plea in Michaelmas term follow and  both the indenture of the that of June be give in evidence on that trial but  the assignment of the that of may be not give in evidence when a verdict be  find for the plaintiff and judgement enter up accord that soon after the say  judgement so obtain and during the life of dame Ann sir Robert atkins the son  enter into and be in possession of the premise in question and that John  Phillips the plaintiff in the say ejectment by deed poll date the saint of  January surrender the term for year of the premise to sir Robert atkins the  son then in possession thereof that sir Robert the son be so in possession  during the lifetime of dame Ann by indenture tripartite date the that of  January between himself of the first part James earl of the second part and  John Holmden of Lincoln inn gentle of the three part for docking bar and  destroy all estate tail use and use reversion and remainder create or limit of  the premise in question and for vest and settle a estate in feesimple therein  to sir Robert atkins sir Robert grant bargain sell feoff and confirm unto the  say James earl his heir and assign the premise in question to hold to and to  the use of the say James earl his heir and assign to the intent and purpose  that the say brown er p James earl may become perfect tenant of the freehold  of the same premise in order to the suffer a common recovery in Hilary term  then next wherein the say John Holmden be to be demandant the say earl tenant  and sir Robert atkins vouchee which it be thereby declare shall enure to the  use of sir Robert atkins his heir and assign and sir Robert atkins do thereby  constitute Edward carter and John Longford his atorneys or attorney either  joint or several to enter on the premise and take possession and seize thereof  and to deliver possession and seize thereof to the say James earl his heir and  assign accord to the purport and true meaning of the say indenture that on the  that of January livery and seize of the premise be give to the say James earl  by the say Edward carter by virtue of the warrant of attorney contain in the  say indenture that a recovery be suffer in Hilary term that Ann of the premise  in question wherein the say John Holmden be demandant the say James earl  tenant and sir Robert atkins and lovis his wife vouchees and that the say  recovery be prosecute have and execute to the several use in the say indenture  of feoff mention brown that sir Robert atkins continue in possession of the  premise in question until the that of November when he die without issue male  of his body by the say lovis his wife who survive he that dame Ann atkins in  Hilary term bring a ejectment in the king bench in the name of John mile as  plaintiff on the several demise of herself and the say Thomas Dacres the  survive lessee in the indenture of the saint of may against Robert atkins  esquire and his tenant and the several demise lie in the declaration be  mention to be make upon the that day of February in the that year of queen Ann  and upon a trial at bar in the court of king bench a verdict be give for the  plaintiff and judgement enter thereon that dame Ann immediate after this  judgement enter and take possession of the premise in question and continue in  possession thereof till the that of October when she die and that soon after  the death of dame Ann Robert atkins esquire who be the nephew and heir at law  of sir Robert atkins the son enter into the premise in question and continue  in possession till his death which happen on the that of march that John  Dacres one of the lessee in the indenture of the saint may die in the year  Robert Dacres another of the say lessee die in the year and that Thomas Dacres  survive both John and Robert and die the d of July that John atkins the lessor  of the plaintiff never be in possession of the premise in question or any part  thereof or in receipt of the rend and profit thereof or any part thereof or  enter thereon until the that of December when he enter upon the same claim as  devisee under and by virtue of the will of sir Robert atkins the father and  demise to the present plaintiff for a term of year from the that of the say  December and upon this case the jury submit to the judgement of the court  whether the verdict ought to be for the plaintiff or defendant this verdict be  argue four several time in the court of king bench and upon the argument the  plaintiff insist that the lease and jointuring power do exist at the time when  they be execute by sir Robert atkins the father that those power be well  execute by he and that the lease and jointure which he make pursuant to those  power be a impediment to sir Robert atkins the son suffer the common recovery  and consequent that the remainder or reversion in fee devise by the will of  sir Robert the father to the lessor of the plaintiff be not bar by the  recovery suffer by sir Robert the son for the defendant it be insist that the  lease and jointuring power do not exist at the time when they be execute by  sir Robert atkins the father for that the deed of covenant of the that of June  be execute subsequent to the release of that date and thereby and by the fine  levy brown thereupon those power be extinguish but if the jointuring power do  then exist and be well execute yet that the jointure make to dame Ann the  second wife of sir Robert atkins the father be no impediment to sir Robert his  son suffer the recovery because when be enter after his father death he become  seize of a estate tail execute in possession or he become possess of the  premise and in either case the feoff make by he to James earl be a valid feoff  and pass the freehold and that if the lease power do then brown er p exist yet  it be not well execute because the lease extend to thing out of which no rend  can be reserve as tithe rend reserve upon lease and to land then in the  possession and occupation of several person whereas the term of the power be  that there shall be but one lease in be at one time and for that it be  uncertain whether the rend reserve be the best rend and the rend be not  Payable during the term and there be no remedy for it and for that the lease  be make for no other purpose than to restrain the tenant in tail from suffer a  common recovery upon these argument the court be of opinion that all the deed  and the fine must be take as one transaction and the same to all intent and  purpose as if express in one instrument that the jointuring and lease power be  well create and subsist power and that the jointuring power be well execute  that there be no good tenant to the precipe in the recovery and therefore that  the recovery be void but the court be unanimous of opinion that the lease to  Thomas Robert and John Dacres be not a good execution of the lease power but  that the lease be absolute void and that the lessor of the plaintiff right of  entry accrueing on the death of dame Ann in his remedy by ejectment be bar by  the statute of limitation and thereupon give judgement for the defendant to  reverse this judgement the lessor of the plaintiff bring a writ of error in  parliament and on his behalf it be say that the principal question upon this  special verdict concern the right and the remedy as to the right whether the  common recovery suffer by sir Robert atkins the young be substantial good and  to the remedy whether the proceed in ejectment be bar by the statute of  limitation I as to the right it will depend upon the validity of the common  recovery whether John earl be a good tenant of the freehold in the recovery  suffer by sir Robert atkins the young if he be then the use in fee limit to  sir Robert the father subject to the estate tail of sir Robert the son be bar  and consequent the reversion out of which the devise to the lessor of the  plaintiff by the will of the father be intend to take effect be go if he be  not a good tenant of the freehold then the recovery be void the right of the  lessor of the plaintiff must stand uncontroverted now to show that John earl  take no estate by the feoff which can make he brown a sufficient tenant of the  freehold to answer the writ in a common recovery it will be material to  consider saint whether sir Robert atkins be tenant in tail in possession and  dly suppose he to be only tenant in tail in remainder whether his feoff convey  the freehold to John earl by seize as to the first of these question if sir  Robert atkins the young have be tenant in tail in possession his bargain and  sale his lease and release his fine or his feoff will have convey a base fee  and operate by way of discontinuance voidable either by the entry or action of  the issue in tail or remainder man as the case may require will have make the  discontinuee a sufficient tenant of the freehold but dame Ann atkins the  jointress be seize of the freehold for life at the time of make the feoff and  never join in convey a estate to the feoff the feoff therefore be only the act  of tenant in tail in remainder must either pass a estate by seize or be  absolute void To this however it be object that sir Robert atkins the young be  tenant in tail in possession because dame Ann have no precedent estate for  life by way of valid and effectual jointure the great deed contain the power  for make jointure and lease the lesser deed be execute subsequent to the great  deed and take no notice of they by consequence the fine levy after both in  Trinity term be levy between the same party and of the same premise extinguish  the power and if the power of make jointure be extinguish the execution of  that power by the jointure make to dame Ann the second wife of sir Robert  atkins the elder be null and void But there be a very easy answer to this  objection for the verdict have not find which of the two deed be first execute  the internal evidence arise from the deed themselves speak the whole to be one  transaction flow from one agreement previous to the marriage of sir Robert  atkins the young with lovis Carteret both bear the same date and be equal  consistent the lesser deed contain covenant with the trustee relative to  nothing but those land which dame mary brown er p the first wife of sir Robert  atkins the elder agree to accept in lieu of her jointure and be probable put  into her hand in the nature of a counterpart of so much of the settlement as  concern her jointure the great deed contain the marriage settlement itself and  comprise other estate as well as the land in question which be actual convey  to the trustee both deed contain covenant to levy a fine to the use in each  and one fine be levy which must be refer to the great deed because it be levy  of all the estate in that deed and not confine mere to the land comprise in  the lesser deed and it will be to the last degree absurd to suppose that the  party intend to extinguish the power the very moment in which they be create  on the trial of the ejectment bring by sir Robert atkins against dame Ann the  second jointress at the bar of the common brown plea in when the jury take  upon they to find a general verdict Lord chief justice Trevor and Mr justice  Tracey be strong of opinion that the two deed must be construe together as one  entire declaration of the use and Lord Trevor say he will make a hundred  supposition rather than presume the contrary but suppose that sir Robert  atkins the young be only tenant in tail in remainder then whether his feoff  convey the freehold to John earl so as to make he a good tenant to the precipe  by seize depend on his entry on his feoff and it be insist by the plaintiff in  error that by his entry he gain no freehold by his feoff he convey no estate  for as to his entry it be make in under a mistake judgement in ejectment  recover against dame Ann atkins the jointress by sir Robert atkins as tenant  in tail in possession in easter term the jointress recover possession again in  ejectment by which second judgement his title be disaffirmed and the deed by  which that title must be judge of be express find upon this record it be plain  that the first judgement be wrong and that his entry be now to be consider as  the mere act of tenant in tail in remainder by that judgement in his own  ejectment he can recover nothing but the term the point of the action be that  the plaintiff may gain possession under his term the possession of the lessee  be that of the lessor the way in which it always operate to the lessors  benefit be that by obtain judgement for the possession of his suppose tenant  he be enable to enter and have enter the possession unity with any present  freehold in himself whether it be a particular estate or a estate in fee  accord to his right but in this case sir Robert atkins have no present estate  of freehold in himself he gain only a bare possession and the freehold still  remain in judgement of law in the jointress who have the right to it the entry  of sir Robert atkins under the judgement must be a lawful entry whether the  sheriff execute the writ and give possession or whether the party be his own  officer and execute it for himself by take possession it have be hold that the  entry be equal lawful in either method if it pursue the judgement but his  possession be recover without title no hold over can gain the freehold and his  entry be lawful no hold over though wrongful can create a seize or change the  cause of his possession as have often be determine in the case of tenant by  sufferance so that his conveyance be absolute void he have no estate on which  a release will operate by way of enlargement and there be no privity between  he and the owner of the freehold And as to his feoff it may be consider in two  light as a conveyance operate either by right or by wrong as a conveyance  execute with the particular intent of make a tenant to the precipe in a common  recovery as a conveyance general it be not pretend that it can operate by  right it brown can only then be construe to convey a freehold by wrong but it  be a necessary consequence of the reason upon sir Robert entry that his feoff  be absolute void for where the true owner of the freehold be actual expel by  the tortuous entry of the seize take violent possession of the land that seize  have gain a estate of freehold and fee which will pass by a bare livery upon  his feoff his force gain he a estate by wrong and his feoff will convey it but  in this case the entry and possession be lawful so long as the judgement be in  force the only wrongful act from which a seize can be infer be the feoff the  give livery upon that feoff not follow by any possession of the feoff can  never make a seize in the strict original and legal sense it will be a seize  mere at the election of the rightful owner of the freehold and for the sake of  his remedy if it be the act of his tenant for brown er p year and the wrongful  feoff be put into possession the true owner may either accept his rend and  treat he as a undertenant and assignee of the term or he may maintain a assize  and recover the freehold if the wrongful feoff continue in possession by  collusion with his feoff as in the present case the true owner be under no  necessity to take notice of the feoff he be not bind to consider his own  tenant as a seize and himself as out of possession but still have it in his  election either to accept his rend distrain and bring air action for it or to  proceed in at real action for recovery of the freehold as in case of a  forfeiture thus the feoff of tenant for year or tenant by sufferance will make  a seize for the benefit of his lessor in respect of that remedy which the  lessor may elect to take but estate in remainder can not be displace without a  tortuous entry and as to such remainder the feoff be absolute void in law But  as a conveyance execute with the particular intent of make a tenant to the  precipe in a common recovery it have never yet be determine that the feoff of  a tenant for year be also tenant in tail in remainder perfect by livery upon  the land under colour of a lawful possession eastern mind to maker a tenant of  the freehold in a common recovery will be sufficient to support the judgement  in that recovery and enable he to bar his own and the subsequent estate if it  will then a tenant in tail in remainder may suffer a recovery in every  instance as free as a tenant in tail in possession not only without the  concurrence of the immediate owner of the freehold by his join in it as a  essential party or surrender his estate but even without ask his consent or  give he any notice by collusion with a tenant for year by secret practice to  take advantage of a vacant possession when the tenant of the freehold be  absent from his house or land he may execute a feoff and then suffer a common  recovery to anticipate that right which the law have wise and just postpone  till he shall chance to succeed in the order of the entail if this method of  suffer recovery be brown once establish as legal the old son of the first  family in England who be tenant in tail in remainder expectant on the estate  for life of the father may dispose of the inheritance of their estate at the  age of against the consent and in spite of the authority or the freehold of  their parent but it be plain contrary to the ground of law conveyance to make  a tenant to the precipe in a common recovery be consider as mere instrument to  make party in a fictitious action to serve the purpose of he who mean to  suffer that recovery such a feoff as in the present case be often call a mere  actor story if he be tenant for year of the land convey by the feoff before  the make of it his term will not merge in the feesimple no dower can arise out  of it his judgement or statute will not bind it this be the uniform tenor of  determination in court of law in which the intent of the conveyance have be  consider and not the mere legal operation of it it be consequential that the  validity of his estate in order to support it as a instrument must depend on  the right and power of he who make it to suffer a recovery if the feoff have  no such right or power his feoff be void and the estate convey be find in  fraud be as no estate in judgement of law the commonlaw avow these principle  and the legislature have adopt they for the statute Geo two c which be make to  support common recovery against nice exception and to raise presumption in  favour of they after a limit time most anxious provide that the person join in  such recovery shall have sufficient estate and power to suffer the same as if  the legislature have foresee the present case and be aware and afraid that  tenant in tail in remainder may by colour of that law in future time suffer  common recovery without the concurrence of the true immediate owner of the  freehold two as to the remedy it will depend on this whether the lessor of the  plaintiff be not bar of his entry by the statute of limitation not have enter  after the death of sir Robert atkins which be on the that of November till the  that of December and to this there be two general answer the first general  answer be that so long as the jointure of dame Ann atkins subsist which  determine on her death that October the lessor of the plaintiff can not enter  and this be admit in case the power by which the jointure be create be not  previous extinguish and so long as the lease for life to the three Dacress be  in be which do not expire till the death of Thomas Dacres the survive lessee  on the d of July the lessor of the plaintiff can not enter but this however be  dispute upon several ground of objection brown er p that the lease do not  pursue the power be no contract between lessor and lessee because execute only  by the former and be therefore a absolute nullity brown that suppose it to be  a good lease it determine when the estate tail in sir Robert atkins the young  be spend by the express term of the demise that suppose the lease to be valid  and subsist yet on the extinction of the estate tail it be a trust to attend  the inheritance in the lessor of the plaintiff because it be part of his title  deed and therefore can not protect he from the statute run in favour of a  adverse possession nor secure a new right of entry for his benefit on the  expiration of the lease to the first of these objection it be answer that the  lease do pursue the term of the power and if it stand clear of other  difficulty not arise from the power will have be good to bind the issue or  remainder in tail the power enable sir Robert atkins the father as tenant for  life sir Robert the son and lovis Carteret his wife respective as they shall  come into possession of the estate under the settlement of by deed sign and  seal in the presence of two or more witness to make a lease or lease of all or  any of the premise for one two or three life in possession reversion or  remainder for any term or number of year determinable on one two or three life  or year absolute so as there shall not be in the respective premise or any  part any estate exceed the term of three life or year in be at the same time  and so as such lease be not make without impeachment of waste and so as the  usual rend with fine or the best rend without fine shall be reserve on such  lease the lease in question be conformable to the power in respect of the  instrument it do not appear that there be any other estate exceed the term of  three life or year in be at the same time on any part of the premise and it  can not be presume upon this verdict the rend of pound ayear reserve upon the  lease be in fact the best rend rend of thing incorporeal be comprehend with  the rend of the land in one demise but the issue in tail or remainderman can  be under no difficulty to avow because by the rule of law he may distrain for  the entire rend upon the land the reservation be sufficient to support the  remedy for it without a express covenant if the lease be accept and as to the  nonexecution of a counterpart or the want of a clause of reentry the power  require neither of they but suppose the lease do not pursue the term of the  power so as to bind the issue or remainder in tail yet if it be a contract  between sir Robert atkins the lessor and the Dacress the lessee it be  sufficient to bind the reversion in fee limit to the lessor and his heir and  will estop the devisee from enter and the heir from object the statute of  limitation as a bar to that devise during the existence of the lease it be not  dispute but the execution of the lease by the lessor must bind he in case the  lessee have be party to the execution of it but their sign and seal be  apprehend to be immaterial because they have accept it if they brown have all  enter upon the land and pay rend there can not have be a doubt of their  acceptance and their entry by attorney be of equal force in law if the lease  be pursuant to the power it wall admit on the part of the plaintiff in error  that the livery may not be necessary to perfect it because it take effect out  of the power but still livery be a act do upon the land it amount to a entry  by the lessee and be a actual acceptance of the lease and though the attorney  be constitute only by one of the colessees on behalf of himself and his  companion yet in the case of a joint estate his entry will enure to vest the  estate in all but if the lease be inconsistent with the power the livery be  necessary to perfect it as against the tenant for life who make it and his  heir in reversion who controvert it after entry the lessee be liable to pay  the rend if the lessor have insist upon it and it be immaterial to the  validity of the lease in a court of law whether they occupy the land  themselves or suffer the lessor to occupy it as a tenant at will to they to  the second objection it be answer that by the rule of law the duration of the  estate must depend on the limitation of it for year or for life in tail or fee  the inducement to the grant can never qualify the limitation in a court of law  though accord to circumstance a court of equity may imply a trust upon it or  decree a reconveyance and to the three objection it be answer that the verdict  do not find the lease to have be in the possession of the lessor of the  plaintiff and if any intend brown er p mean be to be make it be rather to be  presume that it be in the possession of some of the lessee or their  representative the intent of the lease recite in it to prevent bar the  reversion in fee will be consider in equity only as a request to the lessee  not to join with the tenant in tail in suffer a common recovery and can not be  enforce as a trust but suppose the lease to be a trust to attend the  inheritance still a court of law can take no notice of that trust it be no  argument to say that the lessor of the plaintiff may long since have have the  aid of a court of equity to remove it out of the way in order to a trial of  the title at law between he and the defendant both as it be a equitable relief  which various circumstance may have render very doubtful and as court of law  do not find their judgement of legal question upon the possible relief to be  give in court of equity and if the lessor of the plaintiff may have be nonsuit  by the production of this lease in any ejectment bring during the life of the  survive lessee it follow that the statute of limitation can not begin to run  against he in bar of his entry till the expiration of the lease the second  general answer to the objection arise from the statute of limitation which do  not occur when the cause be argue in the court of king bench be this that  suppose the lease to be absolute void from the instant of make it brown yet  upon this record the find of the jury be not sufficient in law to warrant the  inference make by the court that the lessor of the plaintiff be bar of his  remedy there be several determination of weight in which it have be hold that  a bar from the statute of limitation shall not be raise by construction and  collection from fact find in a special verdict the presumption of law be in  favour of the plaintiff remedy for his right and the defendant must insist  upon the bar to that remedy by the statute of limitation if he will take  advantage of it in all case where the limitation of time express bar the  action he can only take advantage of the statute by plead it to which the  plaintiff may reply that he be within the save and exception if the defendant  plead the general issue it be a waiver of the statute which bind he in case of  ejectment the limitation of time bar the entry which be the ground of the  action but not the action itself therefore it have be hold that the defendant  be not under the necessity of plead the statute but may take advantage of it  in evidence the plaintiff have then a opportunity of show by way of reply in  evidence that he be within the save of infancy etcetera or that he have make  continual claim etcetera from hence it necessary follow in reason law and  justice that in order to infer a bar of the plaintiff action from a special  verdict the jury must not only find that he be out of possession or do not  enter till a particular day but negative that he have not make continual claim  nor be within any of the exception of the statute otherwise it can be presume  by any rule of intendment upon special verdict that he be not entitle to the  benefit of one or other of those exception or have not save his right or entry  and upon this record it be observable that the jury have express find the  plaintiff to be seize prout law postulate after his actual entry in December  which seize can not have be find unless it appear to they in proof that he  have make continual claim and therefore it be hope that the judgement will be  reverse but in support of the judgement it be argue g Pratt I knoll that the  deed of covenant of the that of June which comprise the premise in question  only without any jointuring or lease power must necessary have be execute  subsequent to the release or settlement of that date wherein those power be  contain and can not be make for any other purpose than to extinguish and  destroy those power for sir Edward Carteret and low can not stand seize to the  use in this deed unless the inheritance have be before convey to they and  which it appear to have be by the deed of lease and release that by the entry  of sir Robert atkins the son and the feoff make by he after such entry to  James earl earl become tenant of the freehold consequent the recovery be good  and bar the remainder and reversion in fee devise by sir Robert the father to  the lessor of the plaintiff that a common brown recovery be a assurance much  favour by the law and the present action be bring to deprive the defendant who  be heir at law of both sir Robert the father and son of a estate which have be  enjoy under one for upward of forty year in favour of the devisee of a  remainder brown er p or reversion in fee expectant on a estate tail a interest  of no value or consideration in law that the lease make by sir Robert the  father to the Dacress be void not only for the reason before mention but  because the lessee never have the lease in their custody never enter or take  possession of the demise premise never pay any rend nor ever execute any  counterpart but beside all this the lease itself be fraudulent as against sir  Robert the son the remainderman in tail and if not it determine on his death  without male issue the intent of make it be only to prevent he from suffer a  common recovery and therefore and for that the plaintiff remedy by ejectment  be bar by the statute of limitation it be hope that the unanimous judgement  give by the court of king bench will be affirm with cost after hear counsel on  this writ of error the judge be direct to deliver their opinion upon the  follow question videlicet whether sufficient appear by the special verdict in  this cause to prevent the lessor of the plaintiff by the force of the statute  of limitation of the saint of king James I c from recover in this ejectment  whereupon the Lord chief justice of the common plea have confer with the rest  of the judge who all attend the hear except Mr justice Bathurst deliver the  follow opinion videlicet that sufficient do appear by the special verdict in  this cause to prevent the lessor of the plaintiff by force of the statute of  limitation from recover in this ejectment accord it be order and adjudge that  the judgement give in the court of king bench shall be affirm and the record  remit and it be further order that the plaintiff in error shall pay to the  defendant in error the sum of pound for their cost in the house jour vol p