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![handle is hein.slavery/ssactsengr0248 and id is 1 raw text is: LEWIS V. MARSHALL
Pollexfen, 54, Lord Hale and the 'other judges appear to have adhered to the opinion
expressed in the note to Co. Litt. above cited.
That case, as far as it is material to the present question, was this :-Richard
Lower makes a feoffment to the use of himself for life, and, after the death of Richard
Lower and Philadelphia his wife, to the use of Thomas Lower for life, after the death
of Richard, Philadelphia, and Thomas, to the use of Thomas and the [727] heirs male
of his body, and, for default of such issue, to the use of the heirs of Thomas. Thomas
has issue a daughter, and then, by fine and indenture, grants the land to Grills for
500 years. Thomas dies, then Philadelphia dies, Richard being alive: and whether
this lease be good after the death of Richard, was the question. Pollexfen argued
that the lease was good, and made four questions-first, whether the words heirs of
Thomas were words of limitation or words of trust-secondly, whether the remainder
limited to Thomas and his heirs, were a contingent remainder, or a remainder vested
in Thomas, which is descended to his heir-thirdly, admitting it were a contingent
remainder, and not actually vested in Thomas, yet, whether the same, since the con-
tingency happened, be not vested in the heirs of Thomas, if not strictly, yet in the
nature of a descent-fourthly, admitting the remainder be not actually vested in
Thomas, but were contingent, and that at the time of the lease made Thomas had no
remainder in him, and therefore no estate is conveyed by his deed and fine, yet
whether, if Thomas had been alive, it would not have been good against him by
estoppel, and so good also against his heir. In arguing the fourth point, Pollexfen
says: It cannot be denied, that, if Thomas had lived after Philadelphia, and the
remainder had vested in him, that this, which at the beginning was only good against
him by estoppel, would then have been turned into a good estate and term, in
interest. Lord Hale decided; first, that the estate limited to Thomas was a con-
tingent remainder; secondly, that this remainder descended to the heir of Thomas,
and he shall have it in course and nature of a descent; thirdly, that the fine of
Thomas did operate at the beginning by conclusion, and passed no interest, yet this
estoppel shall bind his heir, and he shall be in the same ease with his ancestor;
fourthly, that the estate which cometh to the heir upon the happening of [728] the
contingency, feeds this estoppel, and then the estate by estoppel becometh an estate
in interest, and shall be of the same effect as if the contingency had happened before
the fine levied. And, in answer to an objection founded on the authority of the case
above cited, of Iseham v. lorrice, -that an estate by estoppel is not to be favoured,
that the jury is not bound to find it, and, if it be found, the court shall judge the
lease to be void,-it was answered, that the law is so in cases of obligations,
covenants, or personal contracts, which cannot be turned into an estate, but, in other
cases, where the estate is bound by the conclusion, and converted into an interest,
although the jury fiiid the matter at large, yet the court shall judge,-according to
law,-that the estate is good by reason of the estoppel. And all this was confirmed
on a re-hearing before Lord Chief Justice Hale, Wild, Windham, and Ellis Justices.
It appears to us, therefore, on considering these authorities, that the mortgagor
and the representatives of the surviving mortgagee, by concurring together in the
manner before stated, can make a good title to the purchaser; and, consequently,
we direct a
Nonsuit to be entered (a).
[729] LEWIS AND OTHERS V. MARSHALL AND ANOTHER. June 29, 1844.
[S. C. 8 Scott, N. R. 477; 13 L. J. C. P. 193; 8 Jur. 848.]
A., a ship-broker, engaged with B., a ship-owner, to have a full cargo for the ship,
the rates of freight for which, would average 40s. per ton, and at least nine cabin-
passengers, passage-money to average 751. The contract was fulfilled as to the
cabin-passengers, but the average rate of freight for goods put on board by A.
(a) W. Austin not having repaid the 4871. within the six months, the assignment
of the term to the mortgagees, became absolute. W. Austin having thus become a
stranger, acquired (as against Gosden) a fee simple by estoppel by the lease (which
could not operate as an underlease) to Gosden by indenture. The covenants by the
lessee would descend to, and those by the lessor would bind, the heirs of W. Austin,.
293
7 MAN. & G. 727.](ViewImageLocal?handle=hein.slavery/ssactsengr0248&div=1&collection=&method=preview&ext=.png&size=3)