held, that J S having made no assignment, the case fell CHAP. XIII. within the express words of the twelfth section of the Statute of Frauds (from which the sixth section of the Wills Act is copied), providing that in case there shall be no special occupant, "it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant." Here," said Parke, B., " there is no special occupant, the title of the first lessee having been put an end to by the will; the land has been held under a tenancy pur autre vie to the son and his assigns, and as he died without creating any assigns, the property goes to his personal representatives." (a) There may be a special occupant of an equitable estate pur autre vie, although the legal estate be in the trustee. Where leasehold estates pur autre vie were devised in trust for A, his heirs, sequels in right, executors, administrators, and assigns, and A survived the devisor, and being illegitimate died without heirs and intestate, living the cestuis que vie; it was held that the devised estates passed under the Wills Act to his administrator (the nominee of the Crown).(b) Where a testator gave a rent-charge to issue out of lands in England to A for life, and directed that after her death it should be continued, and equally divided between B, C, and D, during their lives and the lives of the longest liver, and B died before A; it was held that the interest in the rent-charge, which passed when A died to B's executors, was an estate pur autre vie. (c) (a) Doe v. Lewis, 9 M. & W. 662; but see Doe v. Robinson, 8 B. & C. 296; 2 Man. & Ry. 249. (b) Reynolds v. Wright, 2 D. F. & J. 590. (c) Chatfield v. Berchtoldt, L. R. 7 Ch. 192. G G CHAPTER XIV. CHAP. XIV. Lands, &c., liable to judgments of cestui que trust; freed from incumbrances of persons seised in trust. JUDGMENTS. HE tenth section of the Statute of Frauds provides, "That it shall and may be lawful for every sheriff or other officer to whom any writ or præcipe is or shall be directed, at the suit of any person or persons, of, for, or upon any judg ment, statute, or recognizance hereafter to be made or had, to do, make, and deliver execution unto the party in that behalf suing of all such lands, tenements, rectories, tithes, rents, and hereditaments, as any other person or persons be in any manner of wise seised or possessed, or hereafter shall be seised or possessed, in trust for him against whom execution is so sued, like as the sheriff or other officer might or ought to have done, if the said party against whom execution hereafter shall be so sued, had been seised of such lands, tenements, rectories, tithes, rents, or other hereditaments of such estate as they be seised of in trust for him at the time of the said execution sued; which lands, tenements, rectories, tithes, rents, and other hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed, freed and discharged from all incumbrances of such person or persons as shall be so seised or possessed in trust for the person against whom such execution shall be sued; and if any cestui que trust hereafter shall die leaving a trust in fee simple to descend to his heir, there and in every such case, such trust shall be deemed and taken, and is hereby declared to be assets by descent, and the heir shall be liable to and chargeable with the obligation of his ancestors for and by reason of such assets as fully and amply as he might or ought to have been if the estate in law had descended to him in possession in like manner as the trust descended; any law, custom, or usage to the contrary in any wise notwithstanding." It has been decided that the tenth section of the Statute of Frauds does not extend to trusts of chattels real. That section, it will be observed, says that the sheriff may deliver execution of all such lands as any person shall be seised or possessed of in trust for him against whom execution is so sued, like as if the said party had been seised of such lands, of such estate as they be seised in trust for him at the time of the said execution sued; and although the statute uses the word possessed, which would be applicable to chattels real, yet as the latter part of the section uses the word seised alone, it is considered that it was not intended to include chattels real. In Scott v. Scholey, (a) Lord Ellenborough said: "The very silence of the statute, which, while it expressly introduces a new provision in respect to lands and tenements held in trust for the person against whom an execution is sued, says nothing as to trusts of chattel interests, affords a strong argument that those interests were meant to continue in the same situation and plight in respect of executions, in which both freehold and (a) 8 East, 467, 486. CHAP. XIV Trust in fee simple assets in hands of heir. Trusts of chattels real not within statute. CHAP. XIV. leasehold trust interests equally stood prior to the passing of the statute." (a) Nor equities of redemption. Attendant terms. Statute extends only to simple trust. An equitable interest in a term of years could not, under the Statute of Frauds, be delivered in execution under a fi. fa. (b) And it has also been decided that, under the tenth section of the statute, an equity of redemption in freeholds or leaseholds cannot be taken in execution by the sheriff under a writ of fi. fa. at the suit of a judgment creditor. (c) In Doe v. Evans, (d) it seems to have been thought that an outstanding term, vested in a trustee upon trust to attend the inheritance, was liable to be seized under an execution upon the cestui que trust, the owner of the inheritance. (e) The tenth section of the Statute of Frauds does not extend to any equitable estate of the debtor in which he has not the sole beneficial interest. Therefore a trust created by a person in favour of himself and another is not a trust within the statute. "The trust," said Abbott, C. J., "must be a clear and simple trust for the benefit of the debtor; the object of the statute appearing to us to be, merely to remove the technical objection arising from the interest in land being legally vested in another person, where it is so vested for the benefit of the debtor." (f) (a) And see Lyster v. Dolland, 3 Bro. C. C. 478; 1 Ves. J. 431; Metcalfe v. Scholey, 2 Bos. & P. (N. R.) 461. (b) Scott v. Scholey, 8 East, 467; Re Duke of Newcastle, L. R. 8 Eq. 700. (c) Scott v. Scholey, 8 East, 467; Lyster v. Dolland, 3 Bro. C. C. 478; 1 Ves. J. 431; Metcalfe v. Scholey, 2 Bos. & P. (N. R.) 461; Plunket v. Penson, 2 Atk. 290; Burdon v. Kennedy, 3 Atk. 739. (d) 1 Cr. & M. 450. (e) And see Doe v. Greenhill, 4 B. & Ald, 684. (f) Doe v. Greenhill, 4 B. & of which trustee seised The statute only authorizes the sheriff to take such CHAP. XIV. lands as a trustee is seised of at the time of execution And to lands sued, and gives no relief against a trust estate, unless the judgment creditor proceed to execution, whilst the legal when execuestate remains in the trustee for the debtor. If, therefore, a trustee has conveyed lands before execution sued, though he was seised in trust for the defendant at the time of the judgment, the lands cannot be taken in execution. (a) The eleventh section of the Statute of Frauds provides that "no heir that shall become chargeable by reason of any estate or trust made assets in his hands by this law, shall, by reason of any kind of plea or confession of the action, or suffering judgment by nient dedire, or any other matter, be chargeable to pay the condemnation out of his own estate, but execution shall be sued of the whole estate so made assets in his hands by descent, in whose hands soever it shall come after the writ purchased, in the same manner as it is to be at and by the common law, where the heir-at-law pleading a true plea, judgment is prayed against him thereupon; anything in this present act contained to the contrary notwithstanding." The Statute of Frauds also contains the following provisions relating to judgments: S. 13. "And whereas it hath been found mischievous, that judgments in the King's courts at Westminster do many times relate to the first day of the term Ald. 684, 690; and see Harris (a) Hunt v. Coles, Comyn. 226; Higgins v. York Buildings Co. 2 Atk. 107; Harris v. Pugh, No heir shall by reason thereof become chargeable of his own estate. Recital of mischiefs arising from the relation of judgments to the first day of term. |