A scire facias action in the time of King William and Queen Mary to repeal letters patent granting the office of searcher to one William Kempe.
Trin. Term 7 Will. 3.
Rex & Regina vers. Kempe.
A scire facias issued out of the petty bag in Chancery, to repeal letters patent bearing date the 29th of December in the 27th year of the reign of King Charles the Second, by which that King granted to the defendant the office of searcher in Plymouth. The case was shortly thus: King Charles the Second granted this office to John Martin durante beneplacito. Afterwards by other letters patent, reciting the grant to Martin, he granted this office to Fryer for life, to commence after the death, surrender, or forfeiture, of Martin. Fryer afterwards surrendered his letters patent to the King; who afterwards, in consideration of the surrender of the letters patent of Fryer, granted by letters patent this office to Henry Kempe for life, to commence after the death, surrender, forfeiture, or other determination, of the estate of Martin, and afterwards to William Kempe for life (who is the now defendant) to commence after the death, surrender, forfeiture, or other determination of the estates, of Martin and Henry Kempe. Henry Kempe dies, and then King Charles the Second dies; and now this scire facias is sued against the defendant, to repeal these letters patent.
This case was argued several times by Gould King's serjeant and serjeant Pemberton for the King, and by Sir Thomas Powis, Mr. Northey, &c. for the defendant. And now Sir Samuel Eyre, and Holt chief justice, (there being but two judges in court) gave their opinions in solemn arguments for the defendant. Sir Samuel Eyre justice for the defendant said, that the principal quaere was, whether the letters patent of Fryer were good? For admitting that they were good, the defendant ought to have judgment: For the consideration of the letters patent of Kempe was the surrender of those of Fryer; and is those of Fryer were good, then the consideration of those of Kempe was good, and by consequence the grant. But if the letters patent of Fryer were ill, then there was no consideration in the patent of Kempe, and the King was deceived in his grant, and therefore it was void in law. But he was of opinion, that the letters patent of Fryer were good; against the validity of which it was objected. 1. That an estate for life, as this of Fryer was, could not depend upon an estate at will; to which objection he answered, that this grant of office did not resemble that of lands, for an office is no longer in being than it is in grant by the King; for the King has no reversion of an office, nor can he grant it by that name, as, 8 Hen. 7. 12. 6 Hen. 7. 14. 2 Brownl. 242. 1 Cro. 279. 8 Hen. 7. 1 & 3. 3 Cro. 236. But the King may grant it in possession, or to take effect in futuro. 8 Hen. 7. 12. 1 Hen. 7. 29. 6. 8 Co. 55. Co. Li. 3, 6. 1 Cro. 279. 3 Leon. 31. 9 Co. 47. Nor is a particular estate necessary, to support this grant of the office in futuro.
2. It was objected, that the King was deceived in his grant to Fryer, which was to commence after the death, surrender or forfeiture of Martin; for the estate of Martin being only an estate at will, it could not be surrendered or forfeited; for those acts, which in cases of other particular estates will amount to a surrender or forfeiture, in case of an estate at will amount to a determination of the will; and therefore there cannot be a surrender or forfeiture of an estate at will (which last assertion Mr. justice Eyre agreed to). And in fact the estate of Martin did not determine by his death, surrender or forfeiture, but by the death of King Charles the Second; and therefore this grant to Fryer could not take effect, because Martin's estate did not determine by his death, surrender or forfeiture.
To answer which objections he said, that it ought to be considered, 1. When the King shall be said to be deceived, to avoid a grant. 2. In what manner the grant of the King shall take effect, and what construction it shall have.
As to the first, where the matter expressed to be suggested on the part of the grantee is false, and to the prejudice of the King, there if the King be deceived, that will avoid the grant.
But where the words are the words of the King, and it appears that he has only mistaken th law; there he shall not be said to be deceived, to the avoidance of the grant. As if there is an estate in esse not recited, or when the grant is recited to be of less value than it actually is, by the suggestion of the party, there the King is deceived, and the grant shall be void. For in the first case the intent of the king was, to grant an estate to take effect in possession, which intent cannot take effect, because there was an estate before in esse not recited. In the second case if the grant were good, the King should grant more than he had design'd to do. But if the King is not deceived in his consideration, nor otherwise to his prejudice, but his intent was to pass the lands, only he is deceived in the law, nevertheless his grant shall be good. To warrant which diversity, he cited Co. Li. 3. Dier 352. a. 197, b. 2 Cro. 34. 2 Brownl. 242. 11 Co. Auditor Curl's case. 1 Mod. 196. Lane 75. 31 Hen. 6. 23. 6 Co. Lord Chandos's case.
In what manner these letters patent of the King shall be construed, when he is mistaken in his own words and affirmation. And he said, that it is a rule in law, that where the King is not deceived by the suggestion of the party, and where it appears by the letters patent that the intent of the King was that the patentee should take, such construction shall be made, that the grant shall not be void. 6 Co. 6. 10 Co. 67. 9 Edw. 4. 11. 8 Co. Earl of Rutland's case.
Now to apply this to the present case. In these letters patent to Fryer the King is not deceived, for the precedent letters patent are truly recited, and the suggestion of the party is true, and the intent of the King was, that Fryer should tkae by these patents; and therefore such construction ought to be made, as the grant may take effect.
And as to the commencement of this grant to Fryer, it seemed to him that the King's intent was, that Martin should hold it for his life; that is to say, that he would not determine his will during the life of Martin, but that after Martin's death the new letters patent should take effect. But since Martin's grant determined by the King's death, this grant of Fryer's shall commence after the death of Martin. And for these reasons he was of opinion that the defendant ought to have judgment.
Holt chief justice for the defendant said, that the question was, whether Fryer's letters patent were good? for if they are not, those of Kempe will not be good neither. But he was of opinion, that those of Fryer were good.
1. It was objected, that they were void, because they were not to commence upon the determination of the estate of Martin, but upon his death, surrender, or forfeiture. His death might happen, but not his surrender or forfeiture, because it was but an estate at will.
To which he answered, that an estate at will among common persons cannot be surrendered; because, being at the will of both parties, either of the parties may determine his will. But in the case of the King, it is not at the will of both parties, but of the King only, and the party cannot determine his will but by surrender. For if it be an office of trust, forbearance of execution is fineable; and surrender in such cases is constantly practised, as in the case of Hale chief justice and Scroggs chief justice.
Then if this office granted at will was surrenderable (as by him it was) the expression of the king in his letters patent was proper enough.
2. It was objected, that it was not forfeitable.
To which he answered, that the King's tenant at will may be said to forfeit. For perhaps the King upon suggestion of crimes committed by the party, before he determined his will, shall be informed by inquisition of record, and then upon the very return of the inquisition the office is forfeited. But if it were an estate for life, then there ought to be a scire facias to repeal the letters patent.
Admitting then the law to be so, this grant to Fryer was good, and might have commenced after the death, surrender, or forfeiture of Martin.
But it was farther objected against this grant to Fryer, that suppose the King had determined his will during Martin's life, yet the grant to Fryer could not have taken effect, because the estate of Martin did not determine by the death, surrender, or forfeiture of Martin; and then if the grant to Fryer were good, there woudl be a freehold to commence in futuro, which is against the rules of law.
To which he answered, that this grant would nevertheless have taken effect, but not till the time limited by the letters patent, which then must have been Martin's death, and in the mean time the King might have granted it to whomsoever he pleased; and when Martin died, Fryer's grant would have commenced.
And as to the objection that a freehold cannot be granted to commence in futuro, he answered, that it must be understood of a freehold in esse, as 5 Co. 93, Berwick's case; but a rent de novo may be granted to commence in futuro, or may be granted in fee with fractions, 1 Co. Corbet.'s case, or to commence upon any contingency; because it is a creature of the grantor, who may mould it in what form he pleases. And the grant of this new office resembles the grant of a rent de novo; for since there is no estate in esse, but it is new created by the King, he may mould it as he pleases. And although there is such an office as this of a searcher, yet the estate is new, nad subject to any limitations. And no reasons can be given why a grant in futuro of such a new office should not be good, as well where there is such precedent estate as where there is none at all. For suppose, there being before a grantee for life, the King grants to another, to commence after the death of the grantee for life; this first grant for life is of no avail to make good the last grant, for the last grant is not a remainder, for then it ought to have been created at the creation of the particular estate; nor is it a reversion, for neither the King nor any other has any reversion of the office, and a grant by such name is void; but the king may grant an office in reversion; not in respect of the particular estate,but it is only a future interest to commence in futuro. 1 Cro. Young vers. Stawell, and Young versus Fowler.
But if the King has the inheritance of an office, such a grant as this had been void. And it seemed to him, that the King's intent was, not to determine his will during Martin's life, but that after his death the grant to Frier should commence; and not to give opportunity to any sollicitation, to determine the estate of Martin before his death. Lastly, Frier's letters patent being good, the surrender of them was a good consideration in the grant to Kempe, so that the letters patent granted to Kempe were good. And therefore judgment was given for the defendant.