_Doe on the demise of Roe, versus Roe on the demise of Doe._
This was a case of ejectment. Gabble (Q.C.) for plaintiff.—"This is a
clear case of ouster (_Shower_, 2); but if the tenant in possession
disputes the title of tenant in tail, he cannot plead _laches_
(_Campbell_, 1)." In this case the remainder man was regularly let in,
but the widow cannot now claim dower (_Blackstone_, 3). Suppose the
mortgagee had been anxious to foreclose, then plaintiff must have been
guided by the rule in Shelly's case (_Adolphus and Ellis_, 6.) Here
there is nothing of the kind. If defendant takes anything, it is in the
character of tenant in reversion after the possibility of issue extinct
(_Shower_, 1).
Thumpus (Serjeant) _contra_.—Doe takes only a chattel interest, or, at
most, a base fee (_Taunton_, 6). The court must presume that the
outstanding term is satisfied (_East_, 6). The rule is not now as Coke
laid it down, for Mansfield (C. J.) declined taking it up. This is a
case of common ouster. Doe walked in as trustee, and was kicked out in
tail. There is no relief for him at common law (_Bracton_). The door was
shut upon him by defendant's son, and the parent is not answerable for
the act of the boy (_Chitty_). Judgment was now delivered by the court.
Mither (C.J.)—This is an uncommon case. Doe was never regularly in, nor
was Roe regularly out. Both took as devisees of the same testator. The
case in _Shower_ cannot guide us here, though the rule laid down has
been recognised. I do not think there is much in the objection to the
widow's claim of dower, though I see I have got it upon my notes. A
mortgagee may suffer by _laches_, but then the defendant should have
pleaded the _tort_. There is nothing of this on the record, and the
verdict must go accordingly.
Puny (J.)—I am of the same opinion. My brother Thumpus has referred us
to Bracton. I know the point in Bracton, and have decided it twice the
other way. But here I think the rule in Shelly's case comes in and
carries the verdict.
Twaddle (J.)—There are four points in this case; three of them amounted
to nothing, and the fourth has been conceded. The _laches_ ought to have
appeared on the pleadings. There cannot be a use upon a use (_Sanders_),
but a trustee may take by the common law, which the statute, Jac. II.,
c. 14, did not interfere with. The provisions of the act removed much
abuse, and the eighty-fourth is a particularly wholesome section. Here
these questions do not arise, and, as the rule is clear, the verdict
must follow it.
Shiver (J.)—I am of the same opinion.
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