right of the wife is saved so as she makes her claime c. within five years after her husbands death d Dier 354 So if husband and wife tenants in speciall taile have issue and the wife die and the husband marry another wife and have issue and levy a fine Sur cognisance de droit come ceo c. and take backe by the same fine an estate in speciall taile the remainder over c. and die the issue by the first wife is barred e Co. 3. 90. So if tenant in taile be disseised or make a feoffment in fee and after levie a fine with proclamations to the disseisor or to a stranger the issues in taile are hereby barred for ever the continuance of the possession in a nother notwithstanding f Co. super Lit. 372. So if a gift be made to the eldest sonne and the heires of his body the remainder to the father the heires of his body and the father dyeth and the eldest sonne levy a fine with proclamations and dyeth without issue this shall barre the second sonne for ever for the remainder descended to the eldest g Cûria trin 21 Jac. Co. E So if lands be given to an eldest sonne and the heires of the body of his father the father being then dead and he levy a fine of this land this will barre the younger brother h Dier 3. But if the issue in taile doe not make his title by him that did levy the fine there the fine will not barre and therefore if my father be tenant in taile and his brother disseise him and levy a fine and he and my father dye this fine shall not barre me as issue in taile because I doe not make my title to the land by him but if I suffer five years to passe and doe not make my claime c. by this meanes I may be barred by the fine i Plow 435. And if the fine be levied of another thing then the thing it selfe entailed As if the tenant in taile grant by fine a Rent Common or the like out of the land intailed this fine will not barre the issue So if a Rent be entailed and the tenant in taile of the Rent disseise the terre-tenant of the land out of which the rent doth issue and then levy a fine of the land this is no barre to the issue of the Rent 2. Albeit the fine be a double fine 2 Co. 76. 3. 85. super Lit. 353. Bio fines 118. Dier 279. with a grant and render yet it is within these Statutes and will barre the issue in taile as well as a single fine so as the grant and render be of the land it selfe and not of any profit apprender out of it And therefore if husband and wife be tenants in speciall taile and they levy a fine with proclamations and the Conusee grant and render the land to them and their heires this fine will barre the issue in taile And if tenant in taile joyne with I. S. and levy a fine to a stranger and the stranger doth grant and render the land againe to I. S. for years and to the tenant in taile in fee afterwards the issue in taile is barred by this fine So if there be tenant for life the Remainder in taile and he in remainder in taile accept of a fine from a stranger and grant and render to the stranger againe for years with a remainder over hereby the issue in taile is bound k Plow 435. If tenant in taile accept of a fine of the land entailed from a stranger and then grant and render a Rent out of the land to the stranger by the same fine this will not bind the issue in taile to pay the same Rent l Dier 117. If tenant in taile make a feoffement on Condition and die having two sisters inheritable to the taile and one of them levy a fine with proclamations sur Release to the feoffee of the whole in this case it is doubted whether the other sister be barred of her halfe or not 3. Albeit the tenant in 3 Co. 3. 86. 87. 1 in Shelleys Case taile die before all the proclamations be finished yet when they be finished as they may be after his death the issue in taile are bound by the fine for howsoever by the death of the tenant in taile the right of the estate taile doth descend to the issue yet when the proclamations are passed this right that doth descend is bound by the Statutes and the issue cannot by any claime c. save the right of the estate taile that doth descend unto him 4. Albeit the 4 Co. 3. 84. 91. issue in taile be within age out of the Realme under Coverture non compos mentis or in prison at the time of the fine levied and the proclamations passed yet the estate taile is barred by the fine And therefore if A. be tenant for life of land the remainder to B. in taile the reversion to B. and his heires expectant and B. levy a fine to C. and his heires and hath issue and die before all the proclamations are passed the issue in taile being then out of the Realme the proclamations are made and after the issue in taile cometh into the Realme and claimeth the remainder in taile upon the land in this case the estate taile is barred for ever 5. These Statutes doe extend to fines levied by tenant in taile by 5 Co. 3. 90. Dier 279. Plow 435. Conclusion and the issue shall be bound by the fine of their Ancestor unto whom they are privy in estate and bloud albeit partes finis nihil habuerunt tempore finis And therefore if the issue in taile in the life of his Ancestor when he hath onely a possibility As if there be grandfather father and sonne and the grandfather be tenant in taile and the father levy a fine of the land before the grandfathers death and then the grandfather dye before the father and after the father dye in this case the issue is barred by this fine †Curia Trin 21. Jac. Com. B. Godfry Wades case Dier 48. so also if the grandfather survive the father But in case of a collaterall descent if the collaterall Ancestor die in the life time of his father without issue this fine is no barre but if he survive his father contra So if lands be given to the grandfather and his wife in speciall taile and the grandfather dieth and the father doth disseise the grandmother and doth levy a fine with proclamations the grandmother dieth and then the father dieth in this case the sonne is barred m Co. 3. 50 51. 9. 140. So if lands be conveyed in taile to a woman for her Jointure within the Statute of 11 H. 7. cap. 20. and whiles shee liveth the issue in taile doth levy a fine of the land by this the issues inheritable to the estate taile are barred for ever
within a year and a day after the fine levied and 10. The time of claime and within what time he that hath right to land must make his claime c. to prevent the barie of the fine execution thereupon or else he was barred for ever but this barre by non-claime is now gone and if such a fine without Proclamations bee levied at this day hee that hath right may make his claime at any time to prevent the barre and avoid the force of the fine Parties to fines void of impediment at the time of the fine levied Stat. 1 R. 3. ch 7. 4. H. 7. ch 24. are barred of the land presently and shall have no time to avoid Parties the same fine by entrie claime c. And privies in bloud and privies in representation claiming by the same title which their Ancestor Privies that levied the same fine had shall be barred by the same fine presently and that whether they have any impediment or not Estrangers to fines being all such as are neither parties nor privies Estrangers 1. That have present right and no impediment who have right to the land whereof the fine is levied and See the Sta. Plow 374. Co. 9. 105. have no impediment naturall or legall shall have time to make their claime c. within five years after the fine levied and Proclamations had and no longer And therefore if lessee for years tenant by Elegit Statute or a Copiholder in fee or for life be ousted and he in reversion disseised they shall have but one 5. years between them to make their claime c. and if they claime not within that time they are all barred for ever for they have all present right and may bring their action presently but otherwise it is where the tenant for life and he in reversion be disseised for in this case he in reversion is not barred by the first five years after the fine levied for in that time he can have no action therefore he shall have time to make his claime 5. years after the death of the tenant for life g Plow 356. 375. If a disseisor levie a fine with Proclamations of the land whereof the disseisin was the disseisee must make his claime within the first 5. years after the Proclamations had and if he happen to die within the five yeares his heire shall not have 5. years more but so much time more as to make up the time incurred in his father or other Ancestors time 5. years and albeit he be an Infant at the time of his Ancestors death yet he shall have no longer time h 19 H. 8. 7. Plow 374. Dyer 3. If a tenant in taile be disseised and the disseisor levie a fine the tenant in taile or his issues must make their claime within the next five years after the Proclamations passed otherwise they be barred for ever The like it is in the lachesse of him in remainder or reversion i Co. 100. And if in these and such like cases he that hath present right and is without impediment bring upon himselfe any impediment as if being within the Realme at the time when the fine is levied he doe afterwards goe beyond the Sea or the like in these cases he shall have no longer time then the first five years after the proclamations had Estrangers to fines pestred with impediments of Infancy Coverture See the statutes Plow 359. Dier 3. Plow 367. 377. 2. That have present right and impediment Madnesse Idiocy Lunacy Imprisonment or absence out of the Realme at the time of the levying of the fine and having then any present interest or right shall have five years time after Infant the infirmity removed to make their claime c. And therefore an Infant regularly shall have time for five years after he come to his full age to make his claime c. although he be in his mothers wombe at the time of the fine levied And yet if my fathers brother disseise him and levy a fine with proclamations and a year after the proclamations my father dyeth and after and within five years my uncle dyeth in this case I by reason of my infancy shall have only so much time to avoid the same as at the death of my father remained to come of the five years next after the proclamations and not a new five years because I claime by the same title that my father had So if my father or other ancestor be disseised and the disseisor levy a fine with proclamations and my father or ancestor dye within five years after the proclamations in this case I shall not have a new five years but only so much as remaineth of the old five years to make my claime c. Madmen Non sane memorie Plow 366. 375. and Lunatickes being strangers to the fine shall have the like time to make their claime c. as Infants have and yet if this infirmity happen after the fine levied and before the last proclamations be made these persons are not bound to the first years but shall have five years time after they be cured of their maladies Women Plow 375. 376. Women Covert Covert estrangers to the fine shall have five years time after they be discovert to pursue their right But if a feme sole estranger to a fine have present right and after the fine levied she take a husband and so five years passe after the proclamations had in this case she is barred and shall have no further time to claime Estrangers to fines imprisoned at the time of the fine levied shall have the same time and liberty Infants have but if such imprisonment Plow 360. 366. 375. Imprisonment happen after the time of the fine levied and before the last proclamation made it seemeth they shall have five years after the inlargement And estrangers to fines being out of the Realme at the time of the levying thereof shall have five years time after Out of England Plow 366. their returne to enter or claime c. But if they be in England at the time of levying of the fine and after goe beyond the Seas and suffer the five years after the proclamations to passe in this case they shall have no longer time except they be sent in the Kings service and by his commandement k 〈◊〉 Sr. Tho. Cottons case 27 Eliz. And if the party be beyond the Sea at the time of the fine levyed and never return but dye there it seems in this case the fine will not barre his heire at all Estrangers to fines that have divers defects or infirmities as 3. That have divers defects Infancy Coverture non-sanity of minde imprisonment absence Plow 375. Dier 133. out of the Realme to avoid fines shall have time for five years after the last of the infirmities removed But if they have divers impediments and they be all
then the 500l the interest and the 200l is cast together and so we agree upon an Annuity of 80l per annum for fourteene years which is assured by Conveyances unto me in this case the contract is usurious and all the assurances made to perfect it are void And yet regularly where the principall mony is lost Curia Hil. 14. Ja. B. R. Sanders case the contract is not usurious If a man desire to borrow of me 100l for a yeare and I am content to let him have it for the use of 8l but withall I compell him to take a lease of me of a house at 60l rent which in truth is worth but 30l this contract is usurious and therefore the assurances thereupon made void Et sic de similibus But if a man the 17th of July 1579. grant me a rent of 20l. per Co. 5. 69. annum for the loane of 100l to be paid every halfe yeare and the first payment at Christmasse 1580. and it is agreed between us that if he pay the 100l the 17th of Iuly 1580. that then the rent shall cease this contract is not usurious and therefore the assurances thereupon made are not void but good But if in this case there be a private or collaterall agreement between us that he shall not pay the 100l and redeem the rent and that clause be put in only to evade the Statute then is the contract usurious notwithstanding and the deeds and assurances thereof void Et sic de similibus If one borrow 100l after the rate of 8l per centum and Hill 7. Jac. B. R. Curia the borrower do afterwards pay part of the principall and all the use within the yeare and the lender doth receive it or the lender doth sue for his mony within the yeare these subsequent acts do not make the contract or deeds or assurances thereof void for it is a rule that if the originall contract be not usurious no matter ex post facto can make it so If one borrow of me 10l and bind himselfe Bro. Obligation 79. to pay me by a day and moreover bind himselfe that if he pay it not by the day that he shall pay me 20l. for it this contract and the deed for perfection of it are good for this is not usurious for all Obligations with conditions for payment of mony lent are of this nature And yet if one borrow 100l of me and for this mortgage land to me of a greater value then 8l per annum on condition that if he pay the mony at any time before the years end then the assurance to be void this should seem to be an usurious contract for in this case I am sure to have by the agreement more then after the rate of 8l per centum and so it is not in the last case before If one borrow 100l for a yeare and give the Broker 20l. Per. â—ust Brigman Hil. 7. Car. to procure it this will not make the contract usurious nor the assurances void but for this the Broker may be punished Also all Obligations made to a Sheriffe contrary to the Statute Obligations made to a Sherriffe contrary to the statute Collusion in â—raudulent convâ—yances 1. To deceive purchasors of 23 H. 6. ch 10. are void or at least voidable by pleading But of this see in Obligations infra A deed also made containing Stat. 27 El. ch 4. Co. super Lit. 3. stat 39 El. â—h 18. the Grant of any thing with intent and of purpose to deceive and defraud one that shall afterwards buy the same thing is void For it is to this purpose provided by a Statute Law That all fraudulent conveyances of land or any rent or proâ—it out of land made by whomsoever with intent to deceive or defeate any that shall purchase the land or any rent or profit out of it for mony or other good consideration of the fruit and effect of their purchase shal be void against such purchasors for so much as they buy and against all others that come in by or under them But all such conveyances as are made bonâ fide and upon good consideration are not to be accounted fraudulent For the better understanding of which Statute and the Law in these cases observe That conveyances bonâ fide are opposed to such as are upon and with any trust expresse or implied And good considerations are set down in the Statute to distinguish from such as are not valuable as nature bloud and the like If one convey land with a present or future power of revocation or alteration at his will that doth convey it this shall be said a fraudulent conveyance as against him that shall afterwards purchase this land So that if one convey his land to the use of himselfe for life and after to the use of divers of his bloud with a future power as after the death of H or after such a day to revoke it and before the Co. 3. 82. 83. day he sell this land to a stranger for a valuable consideration in this case the first deed shall be said to be fraudulent and void as to him that shall purchase the land to doe him any hurt And if one convey land with such a power of revocation and after with an intent to defraud a purchasor make a feoffment to a stranger to extinct the power and after sell the land for valuable considerations to a stranger in this case both the first and the second deed as to the purchasor shall be said to be fraudulent and therefore void And if there be grandfather father and son and the grandfather makes Co. 6. 72. a lease for 100. years to the father and the father to prevent the drowning of the lease by the descent of the reversion to him doth assigne over the lease to certaine friends of his to the use of his son an infant under pretence to pay debts the grandfather dieth the father doth continue the occupation of the land and maketh estates and doth all acts as owner of the land the sonne payeth no debts and the assignement albeit divers persons of quality were named assignes was delivered to one of the assignes of meane estate in private and after the father doth sell the land for valuable consideration in this case this assignment shall be taken to be fraudulent and void as to the purchasor And if the father make a fraudulent conveyance and after continue the occupation of the land and it descend to the sonne after the fathers death and he sell it for valuable consideration in this case the purchasor may avoid the conveyance made by the father as well as if it had been made by the sonne himselfe and that whether the sonne be privie to the conveyance made by his father or not And if the fraudulent conveyance bee made to the King yet it is void as to a purchasor as if it were made to a common person And
of the descent of the warranty the estate of freehold or inheritance be displaced and devested And therefore if there be father and son and the sonne â—â—th a rent-service suit to a mill rent-charge rent-seck common of pasture or other profit apprender out of land of the father and the father maketh a feoffment in fee with warranty and dieth this shall not barre the sonne of the rent common c. And albeit the sonne after the feoffement with warranty and before the death of the father had been disseised and so being out of possession the warranty had descended upon him yet this warranty should not binde him So if my collaterall Auncestor release to my tenant for life with warranty and die and this warranty descend upon me this shall not binde my reversion or remainder But if in the case before the sonne be disseised of the rent c. and affirme himselfe to be disseised by the bringing of an Assise for otherwise he shall not be said to be out of possession of a rent or the like and after the father doth release with warranty and die in this case the collaterall warranty shall binde and barre the son of his rent c. And if in the last case my tenant for life be disseised and my Auncestor doth release to the disseisor with warranty and die this is a good warranty to barre and bind me 8. That Litt. Sect. 734. the warranty doe take effect in the life time of the Auncestor and thâ—t he be bound by it for the heire shall never be bound by an expresse warranty but where the Auncestor was bound by the same warranty and therefore a warranty made by Will is void 9. That the heire claim in the same right that the Auncestor doth Co. super Litt. 370. for if one bee a successor onely in case of a corporation hee shall not be bound by the warranty of a naturall Auncestor 10. That Litt. Sect. 726. Co. 1. 67. 140. super Litt. 380. the heire that is to be barred by the warranty be of full age at the time of the fall of the warranty for if my Auncestor make a feoffment or a release with warranty and at this time I am within age and after he die and the warranty descend upon mee within age this warranty shall not bind me but if I become of age after the warranty of my Auncestor and before his death in this case the warranty may barre mee And in the first case it will barre me also whiles it is in â—orce but I may by my entry avoid it And the same Law is of a woman covert And yet if the entry of an infant or a woman covert be not lawful when the warrantie doth descend in this case the warrantie shall binde them as well as any other for such a warrantie cannot be avoided but by entrie and avoiding the estate And where the husband is within age at the time of the descent of a warranty to his wife and the entrie of the wife is taken away there the warranty shall bind the wife If lands be given to A for life and after to the next heir male Co. 1. 66. 44 Ed. 3. 30. 44 Ass pl. 35 of A and the heires males of the body of that heire male and A having issue B makes a feoffment of the land with warrantie to I S this is a good warrantie and a barre to the issue for a man may be barred of his right by a warrantie which hee could never avoid as where lessee for life is disseised and a collaterall Auncestor of the lessor doth release to the disseisor with warrantie and die and this doth descend upon the lessor by this he is barred A warrantie made for life or in taile is good and shall binde Litt. Sect. 738 Co. super Litt. 387. for so long onely as if tenant in taile of land let it for life the remainder to another in fee and a collaterall Auncestor doth confirme the estate of the tenant for life and die and the tenant in taile hath issue this is a barre to the issue during the life of the tenant for life And in this case upon a voucher the recovery in value shall be put for life onely If one make a gift in taile and grant to warrant the land given Co. 10. 96. according to the gift this warrantie is good no longer then the estate doth last And no warrantie that a donor can make in this case can bar him of the land if the donee die without issue and the estate determine And where a warranty doth bar it is entire and doth extend to Co. 8. 52. super Litt. 373. all the land and to all persons upon whom it doth descend and is a barre of all the right that every one of them hath in the land so that if they have all right jointly or severally or one onely hath all the right and the rest none he that hath the right is barred And therefore if lands be given to A and the heirs of his body and for want of such issue to E his sister and the heirs of her body and A doth make a feoffment with warrantie and die without issue having two sisters E and S this is a bar to E for the whole albeit the warranty descend on her and another If there be tenant for life the remainder to his sonne and heire Co. 5. 79. apparant in taile and the father doth a feoffement in fee with warrantie and dieth in this case this is a good warrantie and will bar the son albeit it be made of purpose to bar him But if by agreement and covin between him and A and B he make a lease to A who makes a feoffment in fee to B to whom the father doth release with warrantie thinking by a collaterall warrantie to bar his son this is no bar for this warrantie began by disseisin And if in the first case the son doth enter in the life time of the father upon the land he doth avoid the warrantie If the father bee tenant for life the remainder to the next heire Co. 1. 66. male of the father and to the heires males of the body of such next heire male and the father makes a feoffment to I S with warrantie and dieth it seems this warrantie is a good bar to the heir and in this case the heir cannot enter in the life time of his father for he cannot be heire male unto his father untill his fathers death If tenant for life make a feoffement with warrantie or be disseised Co. super Litt. 366. 365. Co. 1. 67. Stat. Glouâ— ch 〈◊〉 6. Litt. Sect. 724 725. and release with warrantie and he in reversion being heir to the tenant for life doth not enter but suffer the lessee for life to die and thereby the warrantie to fall and descend upon him in this case this warrantie generally is a bar without any
warrant it in the same manner and plight as it was in the hands of the feoffor and hee shall vouch as of lands discharged And therefore if grantee of a rent grant it to the tenant of the land on condition and the tenant doth make a feoffment of the land with warranty in this case the warranty shall not extend to the rent albeit the feoffment be made of the land discharged of the rent And if a woman have a rent-charge in fee and she doth intermary with the tenant of the land and a stranger doth release to the tenant of the land with warranty this warranty shall not extend to barre any action to be brought after the death of the wife for the rent But if in this case the tenant make a feoffment in fee with warranty and dieth the feoffee in a cui in vita brought by the wife shall vouch as of lands discharged at the time of the warranty made So if tenant in taile of a rent-charge purchase the land and make a feoffment with warranty and the issue bring a Formedon of the rent the tenant shall not vouch c. All those that are parties to the warranty i. such as are named Co. super Litt. 365. 5. 17. 12. Who may take advantage of a warranty And how And against whom it may bee taken Assignes in the deed regularly shall take advantage of the warranty as if one doth warrant land to another his heires and assignes in this case both the heirs the assigns may take advantage of it and they both may vouch or â—ebut or have a warrantia cartae so as they come in in privity of estate for otherwise the heire or assignes cannot vouch or have a Warrantia Cartae and yet he may rebut notwithstanding in divers cases But those that are are not named for the most part shall not take advantage of the warranty and therefore if land be warranted to I S and not to him and his heirs or to him and his assigns or to him his heires and assigns in these cases neither the heire nor the assignee may vouch or have a Warrantia Cartae and yet in some cases where it is so the assignee or tenant of the land may rebut The warranty annexed to an Exchange a Partition by Dedi Co. super Litt. 384. and by homage Auncestrell doth alwayes goe in Privity and therefore an assignee in these cases can take no advantage of it And yet in the cases of Exchange and Dedi an assignee may rebut But the assignee of a lessee for life may take advantage of the warranty in Law annexed to his estate If one grant to warrant land to another his heirs and assigns in Co. 5. 17. super Litt. 384 385. this case the heirs or assignes heire of the assignee or assignee of the heirs of the feoffee or assignees of assignees in infinitum shall take advantage of the warranty And therefore if one infeoffe I S to have and to hold to him his heires and assignes and warrant the land to him his heires and assignes and A doth infeoffe B and his heires and B dieth in this case the heire of B shall vouch as assignee to A. And if one infeoffe A and B Habendum to them and their heires and warrant the land to them their heirs and assignes and A die and B doth survive and die and his heire infeoffe C in this case C shall take advantage of this warranty as assignee If one infeoffe A with warranty to him his heirs and assignes and A doth infeoffe B and B doth reinfeoffe A in this case neither A or his assignes shall ever take any advantage of this warranty And yet if B infeoffe the heire of A he may take advantage of the warranty If one make a feoffment by deed with warranty to the feoffee his heirs and assignes and the feoffee doth make a feoffment over to another by word without deed in this case the second feoffee shall have all the advantage of this warranty for an assignee by word shall have the same advantage that an assignee by deed shall have If a feoffment be made with warranty to a man and his heirs and assignes and he make a gift in tail the remainder in fee and the donee make a feoffement in fee this feoffee shall not vouch as assignee but he must vouch his donor upon the warranty in Law and yet he may rebut If lands be given to two brethren in fee simple with warranty to the eldest and his heirs and the eldest die without issue in this case albeit the other brother be his heire yet he shall have no advantage at all by the warranty because he comes in above the warranty But generally all that claime under the warranty shall take advantage thereof by way of rebutter albeit they can take no other advantage by it If one make a feoffment to two their heirs and assigns and one of them doth make a feoffment in fee this feoffee in this case shall not take advantage as assignee An assignee of part of the land shall take advantage of a warranty Co. super Litt. 385. as if a man make a feoffment of two acres with warranty to him his heirs and assigns and the feoffee doth make a feoffment of one acre of it to another in this case the second feoffee shall take advantage of the warranty as assignee And therefore herein there is a difference between the whole estate in part and part of the estate in the whole or in any part for if a man have a warranty to him his heirs and assigns and he make a lease for life or gift in tail in these cases the lessee or donee shall not take advantage of the warranty as assignes but they may vouch the lessor or donor upon the warranty in Law But if a lease for life bee made the remainder Co. super Litt. 384. in fee such a lessee may vouch as assignee upon the first warranty If the father have a feoffment made to him and his heirs with warranty and he make a feoffment to his son and heire with warranty in this case the son may take advantage of the first warranty after his fathers death If a man infeoffe a woman with warranty Co. super Litt. 390. and they intermary and are impleaded and upon the default of the husband the wife is received in this case she may vouch her husband Et sic è converso If a woman infeoffe a man with warranty and they intermary and are impleaded the husband in this case shall vouch himself and the wife He that comes into the land meerly by act of Law in the post as 26 H. 8. 3. 22 Ass pl. 37. 29 Ass 34. Co. 3. 62 63. the Lord by Escheat or the like shall never take advantage of a warranty and therefore if tenant in dower infeoffe a villain with warranty and the Lord of the villaine enter or
of the Common Pleas may in open Court take knowledge of fines and record them by virtue of their office h Dyer 224. Cromp. Jur. Or the Chiefe Justice of that Court may by the Prerogative of his place take cognisance of fines in any place out of the Court and certify the same without any writ of Dedimus Potestatem i Stat. 15. E. B. Broo. Fines 20. and so also as it seemes may two of the Justices of that Court with the consent of the rest or one of them with a Knight but this is not usual at this day k Dyer 224. Broo. Fines 120. Also Justices of assise by the generall words of their Patents may take certify cognisances of fines without any special Dedimus Potestatem but at this day they doe not use to certify them without a speciall writ of Dedimus potestatem And fines have been levyed before Justices Errants Also cognisances of fines are taken by a speciall writ issuing out of Dedimus potestatem quid Cromp. Iur. 92. F. N B. 147. a. b. 146. F. G. the Chancery called a Dedimus Potestatem whereby commission is given in divers Cases to a private man for the speeding of some Act appertaining to a Judge upon a surmise that the parties that are to doe the same are not able to travaile and by this writ upon such a surmise power may be given to any Serjant at law alone or to any Knight and Gentleman together to take the conusance of such persons and they may by virtue thereof take the same l Curia 39. 40 E. l. 17. either of all or some of the parties m Dyer 220. and that as it seems in any place accordingly n 8 H. 6. 21. But a Justice or other person being cognisee in a fine may not take the cognisance thereof himself And all these that have power to take the conusances of fines are to take great heed of whom they doe take the same and whom they doe admit to make such conusances before them o 34 H. 6. 19 Broo. Fines 11. Cromp. Iur. 32. 92. And therefore they are to see that they know the parties that are to be Cognisors that they suffer not one man to make a conusance in another mans name and that they doe not take any conusance from any person prohibited by law for misdemeanors by such persons herein are punishable in the Star-Chamber p 42 E. 3. 7. 3 H. 6. 42 Perk. Sect. 613. Doct. et St. 155. Cromp. Iur. 55. And if there be any woman that hath a husband that doth joyn with her husband in the conusance the Iudges or Commissioners must take care they doe examine her whether she be willing and doe part with her right in the land willingly or by compulsion of her husband for albeit she be made to doe it by compulsion of her husband yet hath she no way to relieve her selfe when it is done q Stat. 23 El. chap. 3. Dyer 320. And after the Commissioners have taken the same cognisances by Dedimus Potestatem they are to certify the same truly and the day and yeare when it was taken r Dyer 220. Cromp. Iur. 92. and not another time for this may be a misdemeanor punishable in Starre-Chamber and to return the commission into the Court of Common Pleas under their hands and seales within a yeere after the taking of the same conusance at the farthest f Regist or 68. F. N. B. 147. b. And if they refuse to return or certify it the party grieved may by a writ called Cognitionibus admittendis or a Certiorare compell that Commissioner that hath it in his custody or his executor or administrator if he be dead to certify it t Dyer 246. But if any of the cognisors happen to die before it be certifyed then it cannot be certifyed at all for it cannot now be made a good fine u 〈◊〉 1 H. 7. 9. Broo. Fines 124. And so also as some hold if the King die * Dyer 220. Stat. 15. F. 2. 44. 44 E. 3. 38. But if the Kings silver be entred Cognitionibus admittendis quid in paper or upon the back of the writ of covenant as the use is and the party die after this in this case the fine may goe on and will be a good fine notwithstanding the death of the party And Judges for the recording of fines be the Justices of the comÌ„on Pleas onely and therefore all cognisances of fines must be certifyed thither for in that Court onely and not in any other of the Courts of Record at Westminster or in other inferiour Court or ancient demesne are fines to be levyed * 50 Ass pl. 9. But by speciall grant a fine may be levied in a base Court y Stat. 2. H. 6. chap. 28. 37 H. 8. c. 19 5 Eliz. c. 27. And by certaine Acts of Parliament fines may be and are levyed in the county Palatine of Chester county Palatine of Lancaster and county Palatine of Duresme of lands lying within those places And if any persons doe take conusance of fines other then such as before that have power or any other persons or Judges shall record fines or they shall be levyed in any other Court or place then as before such fines are void A Fine may be levyed of all things whereof a Precipe quod reddat Stat. 32. H. 8. c. 7. West Symb. in his Tract of Fines Sect. 25. 50. see in exposition of deeds inâ—ra Numb 3. In respect of the thing whereof the Fine is levied of what things a Fine may be levyed or not and by what names lyeth and of all things which are inheritable and in esse at the time of the fine levyed whether the thing be Ecclesiasticall and made temporall or temporall As of an Honor Manor Island Barony Castle Messuage Cottage Mill Toft Curtilage Dove-house Garden Orchard Land Meadow Pasture Wood Underwood Chappell River Chauntry Corrody Office Fishing Warren Fair Rectory Mines a view of Franke pledge Waife Estray Felons goods Deodands Hospitall Furzes Heath Moore Rent Common Advowson Hundred Way Ferry Franchise Seigniorie Reversion Toll Tallage Pickage Pontage Aquitaile Services Portion of tithes Oblations or the like And therefore fines De honore de S. or De Manerio de S. or De Castro or De Castello de S. cum pertinen ' are good So fines De uno mesuagio uno cottagio uno molendino without Aquatico or Granatico annexed are good So fines De uno T of to uno Curtilag uno Columbario uno gardino uno pomario decem acris terrae decem acris prati decem acris pasturae decem acris bosci decem acris subbosci de Balliva sive officio Ballivat ' de D. de Custod sive officio custod de B. de custod parci forrestae de D. de officio senescalciae de S. cum pertinen ' decem acris bruerae
not intended within but excepted out of the Statute of 32 H. 8. but the King himselfe being tenant in taile of the gift of some of his Ancestors being subjects may levie a fine of it to barre his issues in taile And in all cases where a recovery will not barre the issues in taile there a fine will not barre them Albeit the fine of the husband and wife together of the wives Dyer 72. Plow 373. 2 Wife barred by the fine of her husband or some other land or of the land of the husband and wife together be a perpetuall barre to her and her heires for ever yet if the husband alone levie a fine with Proclamations of such land and then he die in this case shee is not barred of her right but if she doe not make her claime c. within five yeares after her husbands death she is barred of her right for ever notwithstanding the Statute of 32 H. 8. a M. 18. Jac. Co. B. in Anne Twists case And if one seised of land in fee mary a wife and after make a lease of this land to A. for life the remainder to B. in fee and B levie a fine with Proclamations and the husband die and the wife doe not make her claime c. within five years after the death of her husband hereby she is barred of her dower for ever notwithstanding the estate for life in A. but if the remainder of B. had been put to a right at the time of the fine levied she might have avoided the fine by Plea Quod partes finis nihil habuerunt c. b Dyer 224. Co. 2. 93. And if the husband levy a fine of his owne land and die and his widow having no impediment doth not make her claime within five yeares after his death hereby she is barred of her dower for ever c Dyer 358. If a jointure be made to a woman after the coverture and her husband and she levie a fine of it hereby without question she is barred of her jointure in this land but it is thought that this is no barre of her dower in the residue of the land of the husband and especially then when the fine is Sur conusance de droit come ceo c. d Dyer 351. If lands be given to a man and his wife in taile the remainder to the right heires of the husband and the husband alone levie a fine of this this will not barre the wife except she suffer five years to passe after his death without making claime c. and therefore if the fine be to the use of the husband and his heirs in fee he may dispose it as a fee simple and his issue hath no remedy If a man disseise me of the land I have in fee simple or fee taile 3. Disseisee and the like barred by the fine of the disseisor c. Co. 9. 105. 3. 87. super Lit. 298. and after levie a fine of this land with Proclamations and I doe not make my claime c. within five years after the Proclamations had hereby I and my heires are barred for ever of this land And if I being such a tenant in fee make a lease for years or be the Lord of any Copyhold estate and my lessee for yeares or Copyholder in fee or for life be ousted and I thereby disseised and the disseisor levie a fine and neither I nor my lessee for yeares or Copyholder doe make any claime c. within the five years after the fine levied hereby we are all barred for ever And if one disseise me of land and after make a lease for life of it and then levie a fine with Proclamations and I suffer five yeares to passe hereby I am barred both of the reversion and of the estate for life also If tenant for life make a feoffment in fee and the feoffee levie Plow in Stowels case a fine with Proclamations and he in reversion or remainder doe not make his claime c. within five years hereby he is barred for ever If I pretend right or title to land and enter upon it and put him Co. 3. 79. out that is in possession and then I levie a fine with Proclamations with an intent to barre him and he doth not make his claime c. within five years hereby he is barred for ever albeit he had the true right and I no right at all If I purchase land of H. and after perceiving my title defeasible and that a stranger hath the right of the land I doe levie a fine Co. 3. 79. Doct. St. 83. 155. to or take a fine from another with Proclamations with intent and of purpose to barre him that hath right and he suffer five yeares to passe and doth not make his claime c. hereby hee is barred of his right for ever And in these and such like cases there is no reliefe Equitie to be had in equity See more in Numb 11. infra If there be tenant in taile the remainder in taile and the tenant 9. Where a Fine shall be a barre as to one person and not to another or as to one part of the land and not to another Co. 10. 95. 9. 106. in taile bargaine and sell the land by deed indented and inrolled and after levie a fine with Proclamations to the bargainee Sur Conusance de droit come ceo c. in this case as to the tenant in taile and his issue this is a barre but as to all others it is no barre albeit they never make any claime c. So if tenant in taile levie a fine of his intailed land this is a barre as to him and his issues but as to all others it is no barre at all and therefore he in remainder or reversion in their times may enter notwithstanding e Co. 9. 140. 142. So if lands be entailed to the husband and wife and the heires of their two bodies and the husband alone levie a fine of this land this as to the husband tenant in taile and his issues is a barre but not as to the wife for she shall be tenant in taile still and yet it seems she may not suffer Recoverie a recovery of this land afterward So if a man attainted of felony or treason levie a fine of his land this as to the King and Lord of whom the land is held is void and is no barre to their advantage and title of forfeiture but as to all others it is a good barre f 7 H. 4. 44. F. N. B. 98. Plow So if one levie a fine of Lands in Ancient demesne and of other lands together this as to the lands in Ancient demesne is not good nor any barre at all but as to the other lands it is a good barre By the ancient common law he that had right was bound to Co. super Lit. 254. 262 make claime c.
once after the proclamations made wholly removed and after they fall into the like againe and dye in this case their heires shall not have a new five years but the first five years begun in their Ancestors time immediately after the first impediments so removed shall proceed and non-claime of their heires during all the residue of the said five years bindeth them as their said Ancestors should have been bound thereby if they had remained void of such impediments during all the said five years Estrangers to fines that have no present but a future right and 4. That are without impediment having future right upon cause precedent that such as groweth wholly before the proclamations if they be Plow 373. Dier 224. void of impediment shall have five yeares time after their right title claime or interest first groweth remaineth descendeth or cometh to them after the proclamations And therefore if a Mortgagee be disseised and the disseisor doth levy a fine with proclamations and the five years passe and after the Mortgagor payeth or tendreth the money in this case he shall have time for five years after the tender or payment of the money to make his claime c. So if a man levy a fine of his land whereof his wife is dowable shee shall have five years after her husbands death to make her claime c. and not be bound by the five years after the fine l Plow 374. So if tenant in taile levie a fine with proclamations and after the five yeares dyeth without issue the donor shall have five years after his death without issue to bring his Formedon m Co. 78. Plow 373. 374. So if lessee for life levy a fine or make a feoffement in fee and the feoffee doth levy a fine in this case he in reversion or remainder shall not be bound by the next five years after the fine levied but he shall five years next after the death of the tenant for life and if he dye within the five years his heires shall have only so much time as to make up the time before his death five yeares n Plow 374. Co. 9. 105. So also is the law if lessee for life be disseised and the disseisor or a stranger levy a fine in this case he in reversion or his heires shall have five years after the death of the tenant for life and shall not be bound to the next five years after the time of the fine levied o Plow 374. 19 H. 8. 7. Co. 3. 87. 84. Dier 3. So if tenant in taile in possession levy a fine and dye without issue in this case he in the remainder shall have time for five years after the death of the tenant in taile without issue and if he make not his claime c. in that time he and his issues are barred for ever The same law is for him in reversion or the donor if there be no remainder p Co. 3. 87. And if tenant in taile discontinue in fee and the discontinuee levieth a fine with proclamations and five years doe passe and the tenant in taile dieth in this case his issue shall have five years after the Descender to bring his Formedon q 30 El. But if tenant in taile discontinue rendring rent and dye and the issue accept the Rent which doth barre him for his time and then the discontinuee levieth a fine and dyeth in this case the issue of the issue shall not be barred by the five yeares after the fine but shall have five yeares after the death of the issue r Plow 374. And if one de non sane memorie make a feoffement and the feoffee levie a fine and then the feoffer die in this case the heire shall have 5. yeares after the death of his Ancestor and not be bound by the 5. yeares next after the fine levied Estrangers to fines that have future right upon any cause precedent See the Statutes Plow 366 367. Dyer 3. Plow 358. being affected with such impediments when the right first accreweth 5. That have future right and impediment shall have 5. years after the impediment removed to make their claime c. And therefore infants that are borne or in their mothers wombe when such right doth happen to them women Covert mad men Lunaticks prisoners beyond the Seas shall have this time As if a man have issue a son and a daughter and the son doth purchase lands and die and the daughter entreth as his heire and is disseised by A who levieth a fine and 5. yeares claime without claime and tenne yeares after the father hath another sonne who is heire to his brother he shall have in this case a new full 5. yeares after he come to his full age for he is the first unto whom the right descended after the Proclamations But if a stranger to a fine to whom a remainder or other title first accreweth after the fine doe not pursue his right within 5. years hereby he and his issues are barred for ever And in like manner if the first issue in taile to whom the title of the taile first accreweth neglect to make his claime c. within the first 5. years after his title accrewed hereby he is bound for ever and the whole estate taile also And if one abate after the death of a tenant in fee-simple and make a feoffement upon condition and the feoffee levie a fine and 5. yeares passe without any claime made by his heire hereby the heire is barred for the present but if afterwards the condition bee broken and the Abator enter then the heire may have an assise of Mortdancester against the Abator or enter when he will Estrangers to fines that have neither present nor future right at 6. That have no right for any cause before the â—ine the time of the levying of the same fines by reason of any matter Plow in Stowels case before the fines levied whose right groweth entirely before the Proclamations or partly before and partly after may make their claime c. when they please As if a father die seised of land his elder sonne being professed and the younger sonne entreth and is disseised and a fine with Proclamations is levied and then the elder sonne is dearaigned in this case it seemes he is bound to no time So if a tenant cease one yeare and then a fine with Proclamations is levied and after the tenant ceaseth another yeare the Lord may have his Cessavit 20. years after the Proclamations And estrangers to fines that have severall future rights by divers 7. That have future rights by divers titles titles growing at severall times it seemeth shall have severall five Plow 537. 367. 372. years to make their claims c. commencing from the severall times that their titles do first accrew unto them As if tenant for life the remainder in fee make a feoffement in fee and the feoffee levie a fine
with Proclamations and he in the remainder suffer the 5. yeares to passe in this case he is barred of his entrie upon the alienation for the forfeiture but it hath been held that if the tenant for life die that he shall have another 5. years time to bring his Formedon in the remainder So if the husband make a feoffement of his wives Plow 357. 368. 372. land to another upon condition which is broken and he levieth a fine of this land and the husband hath issue by his wife and dieth and the first 5. yeares passe and then his wife dieth hereby he is barred of the title by the condition but he shall have 5. yeares more to make his claime as heire to his mother But if lands be given to H for the life of A the remainder to B for life the remainder to H in fee and H is disseised and after the disseisor levie a fine and 5. years passe in this case H is barred both of his present and future estate and shall have no further time to make his claime c. and yet if Cestuy que vie and he in the meane remainder die H shall have another 5. years to make his claim to preserve his remainder In like manner it is if land be given to H for the life of A the remainder to him for the life of B the remainder to him for the life of C and he is disseised and the disseisor levieth a fine with Proclamations in this case some say H for his present right shall have 5. years by the first saving of the Statute and 5. years after the death of A by the second saving of the Statute If one disseise a feme sole and after mary her and have issue by her and the husband is disseised before mariage or after and then a fine is levied with Proclamations and the husband dieth first and afterwards the wife dieth within the 5. years the issue being of full age the 5. years passe hereby he is bound as heire to his father but he shall have 5. years more after the death of his mother to make his claime 8 c. Quando duo jura in una persona concurrunt aequum est ac si essent in diversis Where there is a precedent agreement amongst the parties as a Co. 10. 96. 2. In the Lord Cromwels case â—â— How a fine shall enure and work feoffement or the like there the fine shall not passe any thing nor work by way of Estoppell but only by way of corroboration and shall be guided by the precedent agreement And therefore if a feoffement be made to two and their heires and after a fine is levied to them two and the heires of one of them this shall enure as a release and shall not alter the estate but if there be no precedent agreement it shall work as it may Dyer 157. Fitz. Estoppell 211. Co. 2. in Cromwels case If A enfeoffe B of certaine land in fee rendring rent with condition of re-entrie for not payment of rent and by indenture at the same time covenant to levie a fine of the same land to the feoffee to the uses and conditions in the deed of feoffment and after a fine is levied sur conusance de droit come ceo c. accordingly in this case this fine shall enure as a fine sur release because the Conusee hath the fee before and it shall not enure by way of Estoppell albeit it bee a fine sur conusance de droit come ceo c. And Estoppell Extinguishment therefore the rent and condition shall remaine in this case and not be extinct A fine may be avoided for many causes as by the death of the parties See before at Numb 6. part 2. F. N. B. 20. f. Stat. 23. El. ch 3. after the conusance before the recording of it or by covin in the 12. Where a fine may be avoided or not And how 1. By a writ of error procuring of it Also it may be avoided for other causes as for some error in the proceeding in the suing out of the fine and this is done by writ of error but this error then that shall not make a fine voidable must be notorious because the thing is done by consent and it is a rule in Law Consensus tollit errorem And by this means if the husband Co. 2. 77. 2. 76. and wife levie a fine and both of them be within age whiles either of them be within age they may avoid the fine as against them both But if there be tenant for life and he in remainder in taile being an Infant and they two levie a fine and he in the remainder reverse it for infancy this shall not avoid the fine as to the tenant for life also A fine also is and may be sometimes avoided or at Plow 358. 359. Co. 9. 106. least lose much of his force by the claim entry or action of him that hath right to the land for if the estate contained in a fine be 2. By a claime entrie c. And by whom a claim c. may be made once within 5. years after Proclamations lawfully defeated the party hath thereby left his whole estate both against him which did reverse the same and against all others which had right or title paramount and made no claime within the 5. years albeit he which doth bring the action have no judgment and execution within 7. years after the Proclamations In like manner if there be tenant for life the remainder for life the remainder in fee and the first tenant for life alien and the alienee levie a fine with Proclamations and the second tenant for life claim or enter c. this doth make void the fine both against him and against him in remainder also for it is a rule That any one that hath any estate in possession or reversion which will be barred by the fine when it is levied may make a claime or entrie to prevent the bar of the fine As tenant for his own or for anothers life tenant for years he in reversion or remainder after an estate for life or years a Copyholder or the Lord a Gardian in nature or nurture may avoyd a fine And this they may do for themselves and others for others without authority precedent or assent subsequent and the claim of one of them in this case shall availe the other And by authority also any other man may make a claim entry c. in this case for him that hath right and so he may doe also without any authority precedent if the party for whom he doth it doe afterwards agree and assent unto it But a stranger of his owne head unlesse perhaps it bee for an Infant cannot make such a claime or entry to prevent the barre of a fine except hee that hath the right doe give him authority before it be done so to doe or doe agree
the husband alone doth discontinue the whole land by fine feoffement or bargaine and sale by deed indented and inrolled and the writ of entrie is brought against the discontinuee and he doth vouch the husband alone without the wife and the husband doth vouch the common vouchee and so a recovery is had this is a good recovery for the whole land and a barre to all the estates in tail and remainder and reversion but not to the estate of the wife for her life after the husbands death But if lands be given to the husband and wife and the heires of their two bodies with remainders over to strangers and the husband alone discontinue and the recovery is suffered as in the last case it seemes this is no barre to the estates in taile or remainder or reversion for any part of the land And yet if lands be given to I S and I D in taile and I S discontinue the whole and the writ of entry is brought against the discontinuee and he vouch I S alone this is a good recovery for the one halfe of the land and a barre to all the estates And if lands be given Husband and wife as before to husband and wife and the heires of their two bodies and the writ of entry is brought against them both and they vouch the common vouchee or the husband alone doth discontinue and the writ is brought against the discontinuee and he vouch the husband and wife both and they enter into the warranty and vouch the common vouchee and so the recoverie is had these are good recoveries for the whole and a barre to all the estates in taile and to the estate of the woman and to all other estates And where Lit. Bro. 37. lands are given to a man and his wife and the heires of the body of the wife or to the wife and the heires of her body and the writ of entry is brought against the husband and wife and they vouch the common vouchee these are good recoveries and will barre the husbands and wives and the estates in taile remainder and reversion And where a man hath land in which his wife hath a Jointure Plow 514. or to which shee will have title of dower after his death if the writ of entry in this case be brought against them both they vouch the common vouchee and so a recovery is had this recovery will barre them both But the husband alone without her cannot barre her of any such estate by a recovery for she may falsifie and avoid it after his death And if lands be given to husband and wife and the Co. 3. 5. 1. 12 Ed. 4. 14. heires of the body of the husband and the writ of entry is brought against the husband alone and he vouch the common vouchee and so a recovery is had with a single voucher this is no good recovery for any part of the land nor barre to any of the estates albeit the husband doe survive the wife And yet if lands be given to two Co. 3. 6. others and the heires of the body of one of them the remainder over to to a stranger and the writ of entry is brought against one of them and he vouch the common vouchee and so a recovery is had this is a good recovery and a barre to all the estates for the one halfe of the land If lands be given to A in taile the remainder to B in taile the remainder to C in taile the remainder to D in fee and A doth make a feoffement in fee and the writ of entry is brought against the feoffee and he doth vouch B being him in the second remainder in taile to warranty and he doth vouch the common vouchee this is a good recovery and a barre to the second estate taile and all the remainders and reversion depending thereupon And yet it is no barre of the first estate taile which A Curâ—a Mich. 18 Jac. B. R. So was it held by most of the Judges in the case betweene Pell Browne hath If the writ of entry be brought against a Mortgagee and he doth vouch the common vouchee and so a recovery is had this is no good recovery to barre or bind the Mortgagor but that he may enter upon the condition broken So if one give lands to B and his heires so long as C shall have heires of his body and B doth suffer a common recovery and vouch the common vouchee this is no good recovery to barre the donor of the possibility for in both these cases he that is to be barred hath no remainder or reversion but an interest or possibility which cannot receive a recompence in value But if in these cases the mortgagee vouch to warranty the mortgagor or B the donee vouch the donor and so they vouch over the common vouchee and so the recovery is had these will be good recoveries to barre both them and their heirs for ever And if one have an estate in fee simple determinable on a Limitation or a Condition as if lands be given to A and his heires untill B pay to him 100 l. and then that it shall remaine to B and his heires and A in this case doth suffer a common recovery and vouch the common vouchee it seemes this is no barre to B and his heires but that upon payment of the 100 l. he shall have the land So if one by his will devise his land thus I give unto A my sonne and his heires for ever my land in W paying 20 l. to B when A shall come to 21 years of age and then that A and his heirs shall have it for ever and if A shall dye without heires of his body C being then living that then C shall have it to him and his heires for ever and A pay the 20 l. to B at his full age and then suffer a recovery of the land this is no barre to C of his estate But here it muâ—t be Co. 3. 5. noted that in the cases before where it is said that a recovery is void it is meant as to the heires and them in reversion and remainder for as to the parties themselves that doe suffer the recovery the same is for the most part good and doth bind them by way of Estoppell and conclusion And it must be noted also that a stranger that hath right to the land at the time of the recovery suffered is not barred at all by the recovery or by his lachess of non-claime c. as in the case of a fine The recoverors in common recoveries their heirs and assignes Stat. 7 H. 8. cap. 4. Dier 31. Co. super Lit. 104. 6. The remedy of Recoverors against the Lessees for Rents and services and upon wast done shall have the like remedy against lessees for lives and years of the land recovered their Executors or Assignes by distresse avowry or action of debt for the rents and
therefore if there bee tenant in taile the remainder in taile or in fee and he in the remainder perceiving the tenant in taile doth intend to sell the land and barre him by a common recovery doth sell his remainder by deed inrolled to the King and after the tenant in taile doth sell the land by common recovery for good consideration in this case the purchasor shall avoid this deed to the King whereby also appeareth that a fraudulent conveyance within this statute may be by way of bargaine and sale And so was it ruled by the Lord Chiefe Justice Hide in evidence to a Jury at Guildhall 3. Car. And if there be a lease for years and the lessor make a fraudulent conveyance in fee M. 4. Jaâ— Cowell Bart. case and then for good consideration maketh another lease to begin at the end of the former lease this conveyance shall be void as to the second lessee And if A make a lease to B for years upon good considerations Per. 2 Iust Hil. 18 Jac. B. R. and after he makes another lease to C of the same thing for the same term to begin at the same time upon good valuable consideration and B doth not discover this but drives this bargaine with C and is witnesse to this second lease and the first lease is not excepted in the second lease it seems in this case the first lease shall be void as to C. And in all these and such like cases albeit the purchasor before he make his bargaine have notice of the fraudulent Co. 5. 60. Co. 3. 83. conveyance yet shall he avoid it as if he were ignorant of it But such conveyances and deeds made as before shall never be said to be fraudulent and void as against him that shall have the thing afterwards if he do not give a valuable consideration for it And therefore if one make a lease that would be fraudulent void as to such a purchasor to A and after make another lease bonâ fide to B but without any rent or fine given for it in this case the first lease shall not be said to be fraudulent as against the second lessee and therfore not void So if one covenant for the advancement of his heirs males c. to levie a fine of land by a day to the use of himself for life and after of his issue male and before the day he make a lease that is fraudulent for many years of purpose and after he doth levie a fine accordingly in this case this lease is good and shall not be said to be fraudulent and void by this Statute as against the issue in taile So if a man that is somwhat foolish and given to wast be perswaded to settle his lands upon some of his friends of purpose to maintaine himself with it and after some of his lewd companions inveigle him and get him for a small sum of mony to conveigh it to them in this case the conveyance first made shall not be said to be fraâ—dulent as against these purchasors and therefore it is good against them And if one that hath a terme for 60. years if he live so long make it away Co. super Lit. 3. and then hee doth forge a lease for 90. yeares absolutely and after by indenture reciting this forged lease for valuable and good consideration doth bargaine and sell this forged lease and all his interest in the land to I S in this case it seems that the first lease is not void and that the purchasor shall have nothing but the forged lease A deed also made of any thing with intent and purpose to deceive Stat. 3 H. 7. 4. 2 R. 2. ch 3. 1â— El. ch 5. Co. 3. 82. 2 To deceive creditors and others of debts and such like duties and defeate Creditors of their just debts and duties is void also as against such persons For it is provided to this purpose by other Statutes That all feoffments gifts grants alienations bargaines and conveyances of lands tenements hereditaments goods and chattells or any rent profit or commodity out of land made by fraud or collusion of trust to him that made the same or otherwise with intent to hinder and delay or put off or put by Creditors or others of their just and lawfull actions suites debts accompts damages penalties forfeitures hariots mortuaries or reliefes shall be void as against them to whom such thing shall belong and hee may recover the thing notwithstanding but all such as are made bonâ fide and upon good consideration are not to be accounted fraudulent by this Statute For the better understanding whereof these cases following are to be heeded If a man a little before his Co. 5. 60. 3. 82. Dyer 295. death make a conveyance of his land to his children or friends of his bloud with a proviso to make it void at his pleasure and he take the profits of it as his own or make a conveyance of it to friends to the intent they shall not be subject to the payment of his debts having bound himselfe and his heires by any especialty or to the intent that a warranty and assets shall not bind his sonne for other land or the like in this case this conveyance shall be void as to them that should have reliefe upon this land by the dissent and especially when the conveyance is made after suites begun and more especially when any judgment is had upon the suits against him that doth make the deed And so also is the law for goods And therefore if one be indebted to A 20l. and to B 40l Co. 3. 80. 83. Bro. Done 20. Plow 54. and be possessed of goods to the value of 20l. and A doth sue the debtor for his 20l. and hanging this suite the debtor secretly makes a generall deed of gift of all his chattels reall and personall to B in satisfaction of his debt and yet doth afterwards continue the occupation and use the goods as his own and after A getteth judgment and execution in this case the deed of gift to B shall be said to be fraudulent and therefore void as against A. So if in this case he give all his goods to B in satisfaction of his debt and before any suite begun by A with any expresse or implicite trust as to the intent that B shall be favourable to the debtor or that if the debtor provide the mony that he shall have the goods again or that he shall suffer the debtor to enjoy and use the goods and pay him as hee can in these and the like cases the deeds shall bee said to bee fraudulent and void for howsoever it bee made upon good consideration yet it is not made bonâ— fide So if one in consideration of naturall affection or for no consideration give all his goods to his child or cousin bonâ fide this shall be a void deed as to the Creditors Et sic de similibus
So if one give all his goods and chattels to his executor in his life time by deed of gift this shall be said to be fraudulent and shall be void as to Creditors And albeit those to whom the deed of fraud is made know nothing of the fraudy yet is the deed fraudulent in that case also as well as where they are privie to it If after a Commission of Bankrupts be sued out the debtor Co. 2. 25. make a deed of gift of all his goods to one of his Creditors in satisfaction of his debt in this case this deed shall be void as against the rest of the Creditors and as to the Commissioners and they may order it with the rest of the estate notwithstanding But if A bonâ fide and for valuable consideration mortgage his land By the two Judges of Assise Aug. 5. Car. in Com. South Lady Lamberts case whereof he hath a term of years to B upon condition that if he repay the mony to B a yeare after that he shall reenter and B doth covenant with A that he shall take the profits of it untill that time c. A doth not pay the money and B hoping that he will pay it in time doth suffer him to continue in possession and take the profits of it two or three years after and in the interim judgment is had against A upon a bond and execution awarded in this case execution shall not be made of this lease for this deed of mortgage shal not be said to be fraudulent as to the Creditor for when a conveyance is not fraudulent at the time of the making of it it shall never be said to be fraudulent for any matter ex post facto If A be seised of the fifth part of the Manor of B and B of the Mich. 19 Jac. Co. B. Miller Potscase 6th part and M cometh to A to buy his part and after M saith to A my Counsell tells me I cannot safely buy of you unlesse B joyn and after B doth grant a rent charge of 15l per annum out of this Manor to C her sonne and the heires of his body in consideration of naturall affection and this was about 1o. Jac. C being then but about three years old with proviso that if D whom B did then intend to mary grant to the said C the like rent of 15l and for the like estate out of 20l. land by the yeare of the land of B then the said grant to be void and after the said A bought the 6th part of the said Manor of B and D her husband being intermaried and after A B and D her husband joyne in the grant to M and in this case it was ruled that this grant to C was not fraudulent and void If one doth hold his land to pay a hariot Co. 10. 56 57. at the death of every one that dyeth tenant in fee simple and he infeoffe his sonne and heire in consideration of naturall affection and mariage to be had between the sonne and I and the son to prevent the Dower of his intended wife during his fathers life makes a lease for forty yeares unto his father if his father live so long and afterwards the mariage is had the father payeth the rent the sonne doth suit of Court for the land and after the father dieth in this case this lease shall not be said to be fraudulent as to the Lord to deceive him of his hariot because it was made to another Stat. 52 H. 3. c. 9. 34 H. 8. ch 5. Co. 6. 76. Lit. Bro. Sect. 59. Plow 49. Co. 8. 164. 9. 129. end A deed also made to defeate the King or other Lord of his 3. To deceive Lords of their wardships c wardship shall be void as to a third part of the thing conveyed And therefore if any tenant that holdeth of the King or any other Lord make a feoffment or other conveyance of his land to defeate and defraud the King or Lord of his wardship primer seisin or any other benefit appointed and preserved for the Lord by the Statutes of 32 and 34 H. 8. shall be void as to a third part thereof against the King or other Lord who shall notwithstanding have their wardship and other benefits as if none such were made As if such a tenant by deed enfeoffe his lineall or collaterall heire within age or make a lease for life the remainder to his heire or make a gift in taile the remainder in fee to his heire or make a feoffment on condition that he shall reinfeoffe his heire at his full age or make a feoffment for the paiment of his debts preferment of his wife and children or infeoffe another to the intent that he shall take the profits till he have an heire male and then to reinfeoffe him all these are fraudulent and void as to a third part of the land and as against the King or other Lord in respect of the benefit they are to have of and by the land But no conveyance in these cases shall be said to be fraudulent and so void for two parts of the land And if one make a feoffment of land to two whereof his heire is one and their heires for mony or other valuable consideration this shall not be said to be a fraudulent conveyance of any part So if such a joyntenant make a feoffment of his moity to a stranger * Dyer 9. Co. 2. 94. And in cases where the feoffment is fraudulent for a third part as before if the feoffee dye or make a feoffment over bonâ fide before the death of the Ancestor in these cases the deed is become good again and the collusion gone If a Dyer 268. Co. 10. 57. man for feare of debts convey his lands to friends with condition that upon payment of 10l they shall convey it to those whom he shall appoint in this case the conveyance shall not be said to be fraudulent as to the King or other Lord for it was done to another end and therefore it is a good conveyance against all men but the Creditors Where deeds shall be void in part or in all for want of inrollment atturnement livery of seisin or the like see afterwards If a deed that is well and sufficiently made in his Creation shall Co. 11. 27. 5. 119. Dyer 59. 261. Perk. Sect. 123. 135. Kelw. 162. Fitz. Release 27. 14 H. 8. 25. Bro. Fait 9. 6 Where a deed good in his creation may become void by matter ex post facto And what will make such a deed void or not 1. By Rasure be afterwards altered by rasure interlining addition drawing a line through the words though they be still legible or by writing new letters upon the old in any materiall place or part of it as if it be in a deed of grant in the name of the grantor grantee or in the thing granted or in the limitation of
in reversion If two Jointenants bee in fee of an acre of land Perk. Sect. 80. and they lease it to a stranger for life and the lessee grant his estate to one of the lessors in this case it seemes it shall enure for a moity by way of grant and for the other moity by way of Surrender If there bee Lord and tenant and the Lord grant his Seigniory to his tenant and to a stranger this shall enure Perk. Sect. 81 Dier 140. for a Moitie to the tenant by way of Extinguishment and for the other moitie to the stranger by way of grant If tenant Perk. Sect. 82 83. for life of the grant of a woman sole grant his estate to the husband of the wife this shall enure for the whole by way of grant If a lease be made for life the remainder for life to a stranger and the lessee grant his estate to his lessor this shall enure by way of grant If there be Lord and two Joint tenants in fee and the Lord grant his Seigniory to one of his tenants in fee it seemes this shall take effect for the whole by way of extinguishment If there be lessee for life and the reversion descend to two coparceners and one of them take a husband and the lessee grant his estate to the husband and wife this shall enure by way of grant for the whole If the disseisee and the heire of the disseisor being in by Co. super Lit. 372. Co. 7. 14. 1. 147 148. 5. 〈◊〉 4. 2. descent make a feoffement by one deed and livery of seisin thereupon this is the feoffement of the heire only and the confirmation of the disseisee 6. If one have divers estates in land and he make any charge or grant upon or out of it this shall issue out of all his estates And if one have a possession and an ancient right and grant a rent charge out of the land or make a lease of the land this shall issue out of both the estates and it shall enure from him Perk. Sect. 592. having severall estates as it shall enure from severall persons having the same estates Quando duo jura concurrant in una persona â—quum est ac si essent in diversis 7. If one that hath a rent charge out of a manor by grant reciting his grant grant the same rent to a lessee for life of the manor out of which the rent doth issue to have and perceive to him and his heires and surrender to him the deed this shall not enure to extinguish the rent but by way of grant of which the heire of the lessee for life may take advantage if he doe not by granting away the rent purchasing the reversion of the manor or making a feoffement of the manor and thereby Co. super Lit. 302. committing a forfeiture or by some such like meanes prejudice himselfe for by these meanes the rent will be extinct and determined If a disseisor grant a rent to the disseisee and he by his deed doth grant it over to another or the dissâ—isor make a lease for life or gift in taile the remainder to the disseisee and the disseisee doth Perk. Sect. 69. grant over this remainder and the tenant atturne these grants of the disseisee shall be taken for a grant and a confirmation also ne res pereat If there be Lord and tenant of white acre and two other acres and the Lord grant by deed to his tenant that he will not distraine his tenant in white acre for his service this grant shall not enure to determine the Seigniory in any part but as a Mich. 37 38 Eliz. B. R. Curia covenant so that if he doe distraine in white acre the tenant may have an action of covenant If a man have a wood of 200. acres and he grant it to another for life or years and that he shall cut therein 4. or 5. acres every yeare in this case albeit the wood be granted and the grant shall enure to passe it yet the grantee can cut no more but 4. or 5. acres by the yeare And yet the grantor as this case is can not himselfe cut any of the wood during the time as in case where a man doth grant to another that he shall cut every year 4. or 5. acres in such a wood for in this case the grantor may notwithstanding cut as much as he will And here note that in all the cases before according to the construction that the law makes of the deed so must the party that is to use it set it forth and plead it as when it shall enure as a lease then it must be pleaded as a lease c. See more in Release Numb 9. Surrender Numb 7. Confirmation Numb 7. In the construction of deeds it must be observed that there are 14. How a deed of grant shall be construed and taken in all the parts and branches thereof Generall Rules some generall rules that are appliable to all the parts of all kinds of deeds and some that are appliable only to some kind of deeds and to some part of the deed only In the construction therefore Co. super Lit. 313. Lit. Sect. 563. Plow 160. 154. of all parts of all kinds of deeds these rules are universally observed 1. That the construction be favourable and as neere to the mindes and apparent intents of the parties as possibly it may be and law will permit for Benigne sunt faciendae interpretationes cartarum propter simplicitatem laicorum Et verba intentioni non è contra debent inservire as if there be Lord and tenant and the tenant grant the tenements to one man for terme of his life the remainder to another in fee and the Lord grant the Services to the tenant for life in fee in this case howbeit a grant may enure by way of release and a release to the tenant for life shall enure to him in remainder and is an extinguishment yet because this is contrary to the intent it shall be taken for a suspension only of the Doct. Stud. 39. Lit. cap. 1. services during the life of the tenant for life and the services shall goe afterwards to his heire But if the intent of the parties be apparently against law then the construction shall not apply the deed to their intent as if one give land to another and his heires for 20. years in this case the executor and not the heire shall have this land after the death of him to whom it is given So if one by deed intending to give land to another and his heires give the land to him To have and to hold to him or to him and his assignes Plow 161. 16 H. 8. 10. Dier 15. Fitz. Barre 237. Bro. Don. 14. 17 E. 3. 7. 46 E. 3. â—7 for ever without these words and his heires this is but an estate for life at the most 2. That the
any estate in this case I S hath an estate for life only If lands be granted to A and B to have and to hold to them Dier 186. for their lives to the use of C for his life by this C hath an estate for his life if A and B live so long If a tenant in taile grant totum statum suum by this the grantee Lit. Sect. 613. Co. 1. 53. super Lit. 345. Plow 562. 162. Co. super Lit. 24. hath an estate for the life of the grantor and no longer And if a lessee for life grant all his estate hereby his estate for life doth passe for this is as much as he can lawfully grant If a man have a sonne and a daughter and die and lands be granted to the daughter and the heires females of the body of the father it seemes by this she hath only an estate for life If one grant land to another to have and to hold to her whiles Co. super Lit. 42. 234 235. she shall live sole or during her widowhood or so long as she shall behave her selfe well or so long as he shall dwell in such a house or so long as she pay 10 l. yearly or so long as the coverture between her and her husband shall continue or one grant lands to a man to have and to hold unto him untill he shall be promoted to a Benefice or the like in all these cases if livery of seisin be made according to the deed or if the grant be of such a thing whereof no livery is requisite the grantee hath an estate for his life and no more and that determinable also If one grant lands to I S. to have and to hold to him for life Co. super Lit. 183. 42. Plow 161. F. N. B. 168. and doth not say for whose life this regularly shall be taken for the life of I S the lessee and not for the life of the lessor But if the lessor himselfe have but an estate for life in the lands granted then the lease shall be construed to be and endure during that life only by which the lessor did hold to prevent a forfeiture And if he that doth make the lease be tenant in taile of the land this shall be taken to be a lease for the life of the lessor And if a tenant for life of land make a lease for years of it and then grant his reversion by the name of a reversion to another To have and to hold to him and his heires by this he hath only an estate for the life of the grantor and no more So if tenant in taile of land grant it to one for years and after grant his reversion to another To have and to hold to him and his heires this shall be construed to be an estate for the life of the tenant in taile and no longer and the atturnement of the tenants in these cases will not alter the cases And so it is in case of a Release also as if tenant in taile doth release to B being lessee for years of the land all his right to the land this shall be taken to enure but for the life of the tenant in taile and no longer as if a man retaine a servant and say not how long this shall be taken for a year Constructio legis non facit injuriam If one grant to I S that if he be not paid yearly for his life Co. super Lit. 147. Co. 8. 85. 40 s. that he shall distraine in the land of the grantor for it by this I S hath an estate for life in the rent And if a man by his deed grant a rent of 10 l. issuing out of all his land quarterly at the usuall feasts this is an estate for life of the grantee If one grant lands to I S and I D. To have and to hold to them Co. 5. 9. 11. 3. during their lives omitting these words and the longest liver of them by this notwithstanding they shall hold it during the life of the longest liver of them And if lands be granted to A To have and to hold to him during the lives of B C and D without any more words by this A hath an estate during all their lives and during the life of the longest liver of them * 38 Eliz. B. R. in the case of Ros Adwick And if lands be granted to A To have and to hold to him during his life and during the lives of B and C by this he hath a lease for his owne life and the lives of B and C and the longest liver of them But if a lease be made to I S of land to have and to hold to him during the time that A and B shall be Justices of Peace or during the time that A and B shall be of the Inner Temple or the like in these cases the â—ailer of one doth determine the estate †Adjudged B. R. 8 Eliz. Hobaâ—t Wisemores case And if a lease be made to B only To have and to hold to him and C for their lives by this B hath an estate for his owne life only and no more and C hath nothing at all And here by the way let it be observed in these and such like cases where lands are granted to one man to Co. super Lit. 41. 239. 388. Plow 556. 28. Dier 328. 321. 264. Co. 10. 98. Occupant have and to hold to him or to him and his assignes or to him his executors administrators and assignes during the life or during the lives of others and in most cases where a man is tenant pur auter vie i. for the life or lives of another or others if the tenant pur auter vie in possession die his estate shall not goe to his heires executors or administrators unlesse they can first get into possession after his death but he that can first get into the possession of the land after the death of the tenant pur auter vie shall have it for his life and after his death then he that can first get into the possession againe c. And therefore if the land were let by the tenant pur auter vie at the time of his death to any under tenant for years or for one year or at will and this undertenant be in possession at the time of the death of the tenant pur auter vie this undertenant shall have it for his life if the life or lives by which it is held so long live for the rule in this case is occupanti conceditur Et capiat qui capere potest And this estate is called an occupancy and he that hath it an occupant To prevent which mischiefe the lessee must take care when he takes his lease to have it made to him and his heires during the life or lives of him or them by whom it is held for in this case after his death his heire and none other shall
have it or if this be neglected then he must take care to grant over his estate by act executed for by his last will he may not devise it to some friend and his heires in trust for him or he may grant it over to another and take a regrant of it to himselfe and his heires or he may make a lease for years of the lands to some friends in trust and by this meanes he may have the fruit of it during the terme When no time is set downe for the beginning of an estate then Co. super Lit. 46. Co. 5. 1. 2. 5. Die◠286. 307. it shall begin presently otherwise it shall begin at the time expressed For years When such a lease shall begin and how long it shall continue if it may stand with law If a lease for years be made bearing date the 26th day of May To have and to hold for 21. years from the date or from the day of the date in these cases the lease shall begin on the 27th day of May. But if the words be To have and to hold from henceforth or from the making hereof in these cases the lease shall begin on the day in which it is delivered And if it be to begin à die confectionis then it shall begin the next day after the delivery And if it be To have and to hold for 21. years without mentioning when it shall begin it shall begin from the delivery if there be no former lease in being and if there be then it shall begin from the time of the ending of that lease If the deed have a date which is void or impossible as the 30 of February or 40. of March and the terme be limited to begin from the date then it shall begin from the delivery So if a man by his deed recite a lease which is not or which is void or misrecite a lease that is in esse in point materiall and then say To have and to hold from the end of the former lease this lease shall begin in course of time at the time of the delivery of the deed If one make a lease of land to A for 20. years and then grant Co. 1. 154. Plow 198. it to B To have and to hold to him from the end of the first terme c. in this case this second lease shall begin assoone as the first lease by what meanes soever shall end But if the words of the second lease be To have and to hold to him from the end of the 20. years in this case the second lease shall not begin untill the 20. years be expired And if one make a lease of white acre to A for 10. years and of blacke acre to B for 20. years and then reciting both the leases doth make a lease to C to begin after the former leases this shall be taken respective and shall begin for white acre after the end of the 10. years and for black acre after the end of 20. years And if one make a lease to two for 60. years provided that Co. 6. 36. if the lessees shall die within the term that then presently after the decease of the last of them longest living the lessor shall reenter and one of them die and after the lessor doth make a lease to another Habendum c. cum post sive per mortem sursum redd vel forisfacturam of the first surviving lessees acciderit vacare for 40. years in this case this second lease shall begin after the death of the lessee surviving reentry of the lessor or the effluxion of time of the first lease which of them shall first happen and the lessee cannot at his election make it to begin at any other time If a man make a lease for 30. years and 4. years after make another lease to another man in these words Noveritis c. me A de Dier 261. B predictis 30. Annis finitis dedisse concessisse B de C c. Habendum à die confectionis presentium termino predicto finito usque finem 31. Annorum by this the second terme shall begin at the end of the 30. years And if one make a lease to A for 20. years and after make a lease to B to have and to hold to him from the Craddocks case pasc 7. Jac. Co. B. end of the first terme for 20. years to be accompted from the date of the last deed in this case the second lease shall begin at the end of the first lease these words to be accompted c. shal be rejected If one make a lease of land to A for 10. years and after by Dier 112. indenture grant it to B to have and to hold to him from Michaelmas next for 10. years and after the first lessee doth purchase the reversion by which his terme is drowned in this case the second lease shall begin presently when Michaelmas is come If two Jointenants be and one of them grant the land to I S to Mich. 13 Jac. B. R. have and to hold to him for 20. years if the lessor and his companion so long live by this the lease shall continue no longer then they both live together and when either of them is dead the lease is determined * Co. 5. 9. And if one grant his land to I S to have and to hold to him his executors c. for the terme of 100. years if A B and C live so long and leave out these words or either of them in this case if either of them die the lease is determined But if the words be To have and to hold for 100. years if A B or C omitting or either of them shall live so long contra †Pasch 30. Eliz. Co. B. If a lease be made of land to the husband and wife to have and to hold to them for 21. years if the husband and wife or any child between them shall so long live this is a good lease and shall continue for all their lives and for the life of the longest liver of them albeit the first words be in the copulative If one possessed of land for a terme of years grant the same to another Dier 307. 69. Plow 520. 524 525. 423 424. Co. 7. 23. To have and to hold to him his executors and administrators or to him and his assignes or to him without any more words or if a man that is possessed of a terme grant his lease to another and doth not say for what time it seemes in these cases the whole terme is granted albeit no livery of seisin be made And in the first case if livery of seisin be made then it seemes there doth passe an estate for the life of the grantee and therefore that this is a forfeiture of the estate of the lessee for years whereof he in the reversion may take advantage presently And if a lessee for years of land grant a
the like it must be done at the time agreed upon and set down in the condition And in cases where it is to be done before a time certain it must be done before that time or else the condition is broken But in all cases where no time is set for the doing of the thing contained in the condition be it to pay money make an estate or the like if the act to be done bee to be done to the party that doth make the estate or be to be done to him and a stranger and be such a thing as is for the benefit of him that doth make the estate and for his benefit only there regularly the party that is to doe the thing shall have time to doe it during his life unlesse the party feoffor c. that doth make the first estate whereunto the condition is annexed doth hasten the doing thereof by request for if he request the doing thereof and set no time it must be done within a convenient time after that request and if he request and prefixe a time convenient when he doth desire to have it done it must be done at that time and in these cases the condition cannot be broken without a request so long as he to whom the estate upon condition is made be living And therefore To pay mony Testament in this case it is not like to a condition made by a Wil for if one devise his land to I S so as he pay the twenty pound to I D the Testator doth owe him and no time is set for the payment thereof in this case he must pay it as soon as it is demanded or he doth forfeit the land and the heir may enter But if the thing to be done be to be done to a stranger and be for the profit and benefit of a stranger only as if a feoffment be made on condition that the feoffee shall To mary I S. mary the daughter of the feoffor or on condition that the feoffee shall infeoffe a stranger and no time is set for the doing hereof in To infeoffe these cases the feoffee shall not have time during his life to doe it but he must do it in a reasonable time and that without any request at all or else he doth break the condition And in some speciall cases when the act to be done is to be done to the party himself the party shall not have time to doe it during his life as if one grant land To grant an Advowson or a rent to I S on condition that he shall grant an Advowson to the grantor for his life or on condition that he shall grant a rent charge to the grantor during his life to be paid at Michaelmas and our Lady day in these cases the grant of the Advowson must be before the Advowson fall and the grant of the rent must be before either of the days of payment come and that without request else the condition is broken And if the condition be that if I S do such an Perk. Sect. 9. 798. act that then the feoffee shall pay ten pound to the feoffor else To pay mony that the feoffor shall reenter and no time is set when the feoffee must pay this ten pound in this case it seems the payment must be as soon as the same act is done and that without any request at all And in case where the feoffee c. or a stranger be to doe an Co. super Litt. 209. act and he alone is to doe it and it doth nothing concern the feoffor c. as to goe to Rome or the like there the feoffee c. or stranger shall have time during his life to doe the thing and it cannot be hastned by request If lands be granted on condition that the grantee shall make a To make a lease Co. super Litt. 220 222. lease for life of other lands to the grantor the remainder to a stranger in this case the feoffee shall have all the time of his life to doe it if hee be not hastned by request But if the condition be to make a gift in taile to a stranger the remainder to the feoffor in this case it must be done in time convenient without request If the King licence his tenant to infeoffe A and B so as they give the land again to the feoffor and the heirs males of his body and he make a feoffment accordingly in this case it must bee reconveyed before the death of the feoffor or else the condition is broken If A infeoffe B of black acre on condition that if C infeoffe B Co. super Litt. 208. of white acre A shall reenter in this case C shall have time to do To infeoffe this during his life if B doe not hasten it by request If a lessee grant his estate to a stranger on condition that the To geâ— the good will of I S. Perk. Sect. 795. grantee doe get the good will of the lessor and no time is set when he shall get his good will it seems in this case he shall have time to get his good will during the terme and that although he deny it at the first yet if he grant it afterwards that this is sufficient When a time is set in certain for the payment of mony or the doing of any other thing generally neither agent nor patient are Litt. Sect. 342. Co. super Litt. 213. bound to aâ—â—end any other time And if the thing be to be done on a day certaine but no houre of the day is set down wherein the same shall be done in this case they must attend such a distance of time before the Sun set as may be convenient to doe that worke in And if the condition be to pay money at a place certain at any To pay money time during life in this case the money may not be tendred at any time in the place in the absence of him that should receive it but he that is to pay it must give notice to the other party before hand what time he will tender it that the other may be ready to receive it Or if at any time the parties hap to meet at the place a payment or tender then at that place is sufficient And the same law is for Obligation the most part in conditions of obligations In cases where a place is set down for the doing of the thing contained 3. In respect of place Co. super Litt. 210 211. 213. Litt. Sect. 343. 345. Bio Condition â—0 in the condition there it must always be done at that place unlesse by some agreement made between the parties afterwards another place be appointed otherwise the condition is not performed and the parties are not bound to attend in any other place But in cases where there is no place set down for the doing of the thing contained in the condition if the thing to
if the feoffee shall Co. 5. 96. super Lit. 208. 207. pay to the feoffor tenne pound such a day that then he shall have By and to whom money shall be paid upon a condâ—tion the land to him and his heirs otherwise that the feoffor shall reenter or if it be made on condition that the feoffee shall pay tenne pound to the feoffor such a day and before the day the feoffee sell the land in this case the seller or the buyer either of them may tender the money at the day and this will be a good performance of the condition for he that hath interest in the land on the one side or in the condition as party or privy on the other side may tender and performe the condition to save the estate If lands be mortgaged or which is all one if a feoffement be Lit. Sect. 534. 537. 15 H. 7. 2. Co. super Lit. 206. made of lands on condition that if the mortgagor or feoffor pay tenne pound to the feoffee such a day that then the estate shall be void before the day the mortgagor or feoffor die in this case the heire or executor of the feoffor the Ordinary the Gardian in Chivalry or Socage of the heire of the feoffor or any other by either of their commandement precedent or assent subsequent may pay this money at the day and payment or tender of it by either of them at the day is a good performance of the condition * Lit. Bro. Sect. 12 5. And so also it seemes is the law upon a devise of land to I S paying to Testament I D twenty pound if I S die his heire or executor may pay the twenty pound and this is a good performance of the condition But in these cases if a stranger of his owne head without any such commandement or agreement pay the tenne pound this will be no good performance of the condition And yet perhaps if the party Lit. Sect. 337 that is to pay it be an Ideot the payment or tender by any one in his behalfe shall be a good performance of the condition And if a feoffement be made on condition that if the feoffor pay tenne pound to the feoffee that the estate shal be void no time is set for the payment of this mony the feoffor die before any payment or tender made in this case his heire cannot tender it and so perform the condition If a feoffement be made on condition that if the feoffor and Co. super Lit. 207. Bro. Condition 109. I S pay tenne pound such a day the feoffement to be void and the feoffor die before the day and I S alone pay it this is a good performance of the condition If a feoffement be made on condition that if the feoffor pay to the feoffee or his heires tenne pound such a day and before the day Co. super Lit. 210. 5. 96 Dier 181. 101. Co. 6. 69. Lit. Sect. 339. the feoffee doth grant the land away to another in this case the money may be paid to the feoffee himselfe or if he be dead to his heires and this payment is a good performance of the condition And if the words of the condition be That if he pay to the feoffee his heires or assignes c. in this case payment to either of them is a good performance of the condition so as if in this case the feoffee make a feoffement over it is in the election of the first feoffor to pay the money to the first or second feoffee and if the first feoffee die to pay it to his heire or the second feoffee But payment to an executor or administrator in this case is not a good performance And yet if the words of the condition be that if he pay to the feoffee without words heires executors c. tenne pound such a day in this case the payment may be made to the executor or adminstrator of the feoffee after his death and such a payment is a sufficient performance of the condition And if the words of the condition be that if the feoffor pay to the feoffee his heires executors or administrators c. in this case payment to either of them is a good performance of the condition But payment to an assignee in this case is not good And if the words be that if he pay to the feoffee and his heires c. in this case payment to his executors or to his assignes is not a good performance of the condition So that in all these cases it seemes for the person to whom payment is to be made the words of the condition are precisely to be pursued If a feoffement be made on condition that if the feoffor shall To tender money Pas 9 Jac. 5. Sir Richard Lees case tender twelve pence to the feoffee such a day the feoffement to be void and afterwards the feoffee is disseised of the land and after the feoffor doth tender the twelve pence to the feoffee at the day this is a good performance of the condition If a feoffement be made to two men on condition that they To reinfeoffe shall reinfeoffee the feoffor or make a lease to him by a day and before Dier 69. 41 E. 3. 25. the day one of them die and the survivor doth reinfeoffe or make the lease this is a good performance of the condition And so also it seemes the law is if both the feoffees be living for by his owne acceptance it seemes he hath dispensed with the condition and so cannot enter for the breach of it If a feoffement be made on condition that the feoffee shall infeoffe Plow 23. 3 H. 7. 4. 21 H. 6. 10 the feoffor of the Manor of Dale by such a time and before the time appointed the feoffee doth grant a rent charge out of the Manor to a stranger and then at the time appointed makes a feoffment of the Manor according to the condition in this case this is a good performance of the condition But if in this case the feoffee before the time appointed grant away to a stranger twenty acres parcell of the Manor and then doth make a feoffement of the Manor according to the condition this is no good performance of the condition And if a feoffement be made on condition that the feoffees or lessees in trust of such land shall grant an Annuity out of it and some of them only doe grant this Annuity this is no good performance of the condition If there be a feoffement made upon condition that the feoffee 44 E. 3. 22. To make a lease shall make a lease of land to the feoffor for life the remainder to I S in fee and the feoffee make a lease to the feoffor for life and after by another deed doth grant the reversion to I S this is a good performance of the condition If a feoffment be made upon condition
lessee and he doth not clense the ditch by the time by this the covenant is broken but if in this case the lessor doe by force keepe the lessee out of the ditch or place it selfe contra If A and B be Jointenants of a shop and A covenant with Hil. 16 Jac. B. R. Siliard versus Loc. To have liberty to goe in and out of a shop B that he and his assignes shall have free ingresse and egresse in and out of the shop and A doth appoint C his servant to enter as servant to him and to occupy in common with A and this servant doth expell the servant of B in this case this is a breach of the covenant If A covenant with B that B shall come foure times a year 3 H. 4. 8. into the house of A without being outsted by A and A when he To come into a house doth see B comming doth shut the doores and windowes and doth not suffer B to come in by this the covenant is not broken * To mary another Make a feoffment c. Tender and refusall If A covenant with B to mary the daughter of B make a feoffement 33 H. 6. 18. Bro. Covenant 3. Fitz. Barre 62. or doe any other act to C who is a stranger to the covenant and A doth tender it and offer to doe as much as doth lie in his power but the stranger doth refuse it and thereby it is not done yet this doth not excuse but the covenant is broken But if the covenant be to doe any such act to the covenantee himselfe and the covenantor tender it and the covenantee refuse it by this the covenant is performed See more in the last question and in Obligation Numb 7 8 9. and Mich. 7 Jac. Co. B. in Condition Numb 9 10. Any one that is party to the deed to whom the covenant is made 8. Who shall or may have advantage of a covenant in deed or law and bring a writ of covenant upon the breach of it Or not may take advantage of the covenant but not a stranger for if A covenant with B to doe an act to C who is no party to the deed and he doth it not B and not C must sue him upon this breach If a lease be made of land to a husband and wife for years and Co. 5. 17. Dier 257. 47 E. 3. 12. the lessor doth enter upon the land and put them both out or the one of them after the death of the other in this case both of them whiles they both live and the survivor after the death of one of them may have this action of covenant upon the covenant in law So if a wardship be granted to a woman by deed and shee take a husband and die the husband shall have advantage of this covenant in law made by the word grant if he be disturbed So if one by the words demise or grant lease land to a woman sole for years who taketh a husband and dieth in this case if the husband be disturbed he shall take advantage of this covenant in law If a feoffement be made in fee and the feoffor doth covenant Heire Dier 338. to warrant the land or otherwise to the feoffee and his heires in this case the heire of the feoffee shall take advantage of this As if A covenant with B and his heires to infeoffe B and his heires of land and B die before it be done in this case his heires shall take advantage thereof And if A B and C have lands in coparcenery and they purchase other lands in fee and they covenant each to other his heires and assignes to make such conveyance to the heire of him that shall die first of a third part as he shall devise in this case the heire not the executor shall take advanntage of the covenant Executors and Administrators shall take advantage of inherent Executors administrators Co. 5. 17. F. N. B. 145. H. Dier 112. 271. covenants albeit they be not named And therefore if A covenant to doe a thing to B and doe not name his executors or administrators and it be not done it seemes the executors or administrators of B may have an action of covenant for the not doing of it As if one covenant with I S to pay him money at Michaelmas and doe not say to his executors c. and he die before the time in this case his executor or administrator shall take advantage of this covenant and may recover the money * S e Condition Numb 12. Co. 5. 18. 9 Jac. B. R. Wilborne Bestwichs case accord Grantees of reversions shall have the like advantage against Assignees oâ— Grantees Fermors by action only for any covenant or agreement contained in their lease as the lessors their heires or successors might And so also shall lessees against grantees of reversions recoveries in value except by the statute of 32 H. 8. cap. 34 And herein as in the cases of a condition before a difference is taken between covenants that are inherent and covenants that are collaterall For the covenants whereof grantees by this statute shall take advantage are inherent covenants i. such covenants as doe concerne the thing granted and tend to the supportation of it As where a lessee for life or years doth covenant with his lessor and his heires to keep the houses demised in good reparations or the like and after the lessor doth grant away the reversion of all * Mich. 8 Jac. Pimes case or part of the houses to I S in this case I S shall take advantage for any breach of the covenant in his time but not for any breach before the time the reversion was granted But if the lessee doth covenant with his lessor and his heires to pay him a summe of money or make him a feoffement or the like and then the lessor doth grant the reversion to I S in this case I S shall not take advantage of this covenant And yet the executors or administrators of the lessor shall take advantage of this covenant Regularly every assignee of the land or thing demised shall take Co. 5. 17. advantage of inherent covenants as if a covenant be to have Estovers to burne in the house demised or to have timber to repaire or if the covenant be that the lessor or lessee shall repaire or the like And therefore of these assignees in deed and in law assignees of assignees in infinitum shall take advantage and assignees of executors or administrators Tenants by Statute or Elegit or after a sale upon a Fieri facias a husband in the right of his wife any one of these and any other that shall come lawfully to a terme unto which such a conveant is incident albeit he be not named yet may he take advantage of it If a lease for years be made to I S by the words Demise or Co. 4.
80. Dier 257. Fitz. covenant 30. Grant and the lessee assigne this over to I D in this case I D may take advantage of the covenant in law and bring an action against the lessor if he be disturbed If a lease for years be made of land the lessor doth covenant Co. 3. 63. F. N. B. 145. with the lessee and his assignes to doe or not to doe something in this case an assignee by word or an assignee by deed may take advantage of this covenant If two coparcenours make Partition of land and the one of them Co. super Lit. 385. Co. 5. 23. 18. doth covenant with the other to acquite her and her heires of a suit that issued out of the land and the covenantee doth alien her part to a stranger in this case the alienee shall have the same advantage for acquitall of the land as the covenantee had So if A be seised of the Manor of B whereof a chappell is parcell and a Prior with the consent of his covent had covenanted with A and his heires Lords of the Manor to celebrate divine service in the chappell and after A had sold the Manor in this case the vendee or assignee of the Manor should have had the same advantage of the covenant the vendor had But if the Lord had sold the chappell the assignee of the chappell should not taken advantage of the covenant And if a covenant be to say divine service in the chappell of a stranger in this case the assignee of the Manor in which the chappell is shall not take advantage of the covenant Regularly all those that doe seale and deliver the deed and are 9. Who shall be bound and charged by a covenant And against whom a writ of covenant doth lie And where Or not Co. 5. 16. 17 18. named and bound by the expresse words of the covenant whether the covenant be collaterall or inherent are bound by the covenant contained in the deed And therefore if heires executors administrators or assignes be named in the covenant for the most part they are bound by the covenant And in all cases of inherent covenants also where a man doth covenant for himselfe only and doth not name his executors and administrators or either of them they are bound and may be charged by the covenant notwithstanding Executors Administrators And in some cases the law is so also for collaterall covenants And in most cases of inherent covenants that tend to the support of the thing granted in respect of which it is presumed the lessor tooke the lesse for the land such as have the land albeit they be neither executors nor administrators or either of them but assignees c. shall be charged by the covenant though they be not named for these covenants are said to run with the land If a feoffement or lease be made to two or to a man and his Co. super Lit. 231. Dier 13. Bro. covenant 6. Det. 80. wife and there are divers covenants in the deed to be performed on the part of the feoffees or lesses and one of them doth not seale or the wife doth or doth not seale during the coverture and he or she that doth not seale doth notwithstanding accept of the estate and occupy the lands conveyed or demised in these cases as touching all inherent covenants as for payment of rent and the accessaries thereof as clauses of distresse of reentry of nomine poene reparations and the like they are bound by these covenants as much as if they doe seale the deed So if a lease be made to A for years or life the remainder to I S in fee and there is a rent reserved or there be divers covenants on the part of the grantees and I S doth never seale the deed or counter part yet if in this case he accept the estate after the death of A he must pay the rent and performe all the covenants that are inherent So also if there be covenants in the Kings Patent to be performed on the part of the Patentee As Experientia Pasc 14. Jac. B. R. Bret Cumberlands case if there be this clause in the Patent and that I S the Patentee shall repaire the house when it is decayed in this case the Patentee is bound by this covenant and all such like covenants But Quere of collaterall covenants in the first cases for therein it seemes the feoffee or lessee is not bound And yet it is said that if an indenture Co. super Lit. 231. be made between A of the one part and B and C of the other part and therein there is a lease made by A to B and C on certain conditions and B and C are bound to A by the indenture in twenty pound to performe the conditions and B only doth seale the deed and not C yet in this case if C accept of the estate he is bound by the covenants and one of them cannot be sued without the other whiles they are both living Qui sentit commodum sentire debet et onus Et transit terra cum onere If a man covenant for him and his heires to doe any thing whatsoever Co. 5. 17. Bro. covenant 38. 32 H. 6. 32. Dier 257. Fit◠covenant 31. hereby his heires are bound But otherwise except the Heire heires be bound by the deed by expresse name an heir shall scarcely be bound or charged in any case by a deed And therefore it is that if the lessee for years be ousted by any other but the heire himselfe no action of covenant will lie against the heire unlesse there be an expresse covenant wherein and whereby the lessor and his heirs are bound But if he be ousted by the heire himselfe it seemes an action of covenant will lie against him And yet if he be ousted by an elder title from the lessor cōtra for in this case the heir shal not be charged If a man doe covenant for himselfe only to pay money build a 10 H. 7. 10. Dier 19. 14 Bro. covenant 50 Dier 114. Executors Administrators house for quiet enjoying or the like and he doth not say in the covenant his executors Descent administrators c. yet hereby his executors administrators are bound shal be charged And yet if a lessee for years covenant for himselfe to repair the houses demised omitting other words it seemes in this case he is bound to repaire only during his life and the executors or administrators are not bound So if a lessor covenant for himselfe only to discharge the lessee of all quit rents out of the land it seemes this covenant is only personall and shall bind the covenantor only during his life But if in these cases these words during the terme be added in the covenant as if a lessee covenant for himselfe to repaire the houses during the terme or the lessor covenant for himselfe to discharge the lessee of all quit
rents during the terme in these cases it seemes the executors and administrators also will be charged after his death If a lessee be ousted by one that hath title it seemes an action Dier 257. of covenant will lie for this ouster against the executor or administrator upon the covenant in law if he were put out in the life time of the lessor and not otherwise for if there be tenant for life the remainder in fee to another and the tenant for life by the words demise or grant doth make a lease for years and dye and after he in the remainder doth enter and put out the lessee for years in this case he cannot upon this covenant in law charge the executors or administrators of the lessor But upon an expresse covenant for quiet enjoying he may Assignees or Grantees In some cases an assignee shall be charged though he be not named Co. 5. 16. and in some cases shall not be charged though he be named and in some cases he shall be charged when he is named as when the covenant doth extend to a thing in esse parcell of the demise there the thing to be done is appurtenant and quodammodo annexed to the thing and shall bind the assignee though he be not expresly named as a covenant to repaire c. But if the covenant be annexed to a thing not in esse before but de novo to be erected on the thing as to set up a new house or the like in this case it will not bind the assignees unlesse they be named in the covenant And if the covenant be to doe a thing meerly collaterall in that case it will not bind the assignees albeit they be named expresly Also when a contract is personall only and a man doth bind himselfe and his assignes his assignes shall not be bound hereby as if one demise sheep or other stock of cattell or any other personall goods for any time and the lessee doth covenant for him and his assignes at the end of the terme to deliver them in as good plight as they were at the â—ime of the demise or such a price for them and the lessee assigne them in this case this covenant will not bind the assignee but the executors and administrators of the first lessee are bound hereby So if one demise a house and land Executors with a stocke or summe of money for years rendring rent and the lessee doth covenant for him and his assignees to deliver the money at the end of the terme in this case an assignee shall not be bound by this covenant as the executors and administrators of the lessee shall If a lessee covenant to repaire the houses demised or to discharge Co. 5. 17. Dier 27. Bro. descent 50. the lessor de omnibus oneribus circa terram or the like in these cases and such like albeit assignees be not named in the covenant yet assignees and assignees of assignees in infinitum al others that shal come to the land by the act of law or by the act of the parties shall be bound and charged by this covenant If a lessee covenant for him and his assignes to build a new house upon the land demised within seven years and the lessee assigne it Co. 5. 17. over in this case the assignee is chargeable But if a man covenant for him and his assignes to make a feoffment obligation or the like in this case the assignee shall not be charged albeit he be named And if the lessee covenant for himselfe or for himselfe his executors and administrators only to build a new house upon the land demised and the lessee assigne over the land in this case the assignee is not bound by this covenant If a lease be made rendring rent and if it be arere that the lessee Thins case vers Cholms ley Trin. 36 Eliz. C. B. his executors and assignes shall forfeit three shillings four pence nomine poenae and the lessee assigne the terme in this case it seemes the assignee shall be charged with the nomine poenae And in all the cases before where a covenant is broken an action Bro. covenant 32. of covenant may be brought But herein note that howsoever in Note divers of the cases before assignees are chargeable upon a covenant yet the lessee himselfe is not hereby discharged but the lessor or grantee of the reversion hath election to charge which of them Election he will And therefore if a lessee covenant for him and his assignes to repaire and the lessee assigne in this case the lessor may have his action of covenant against either of them And if a lessee covenant Hil. 16 Jac. B. R. Curia Bret versus CumberlaÌ„d for him his executors administrators and assignes to repaire the houses demised and he in reversion doth grant away his reversion and the lessee assigâ—e his estate in this case albeit the grantee of the reversion have accepted the rent of the assignee of the terme yet he may still have an action of covenant against the executor of the lessee upon this covenant So if a Patentee covenant for him and his assignes to repaire and he assigne the King may have his action against either of them If A and B doe covenant for themselves jointly without more Co. 5. 23. words the covenant is joint and one of them cannot be charged without the other But if they covenant for themselves severally the covenant is severall and they may be sued apart And if they covenant jointly and severally then the covenant is joint and severall and they may be sued either way at the election of the covenantee Where the deed it selfe wherein the covenants are contained Dier 20. Co. 5. 23. 10. Wâ—â—â—n a covenant shall be said to be gone and discharged And when not And how or the estate on which the covenants as accessary to the principall doth depend is gone and determined there regularly the covenants are gone also And therefore if a lease for life or years be surrendred whereby the estate is gone or a deed become void by rasure or the like and there be covenants contained in the deed by these meanes the covenants are gone also But this surrender doth not discharge the breach of covenant which was before the 40 E. 3. 27. Bro. Surrender 47. Covenant 41. Hil. 4 Jac. B. R. Moile vers Austin surrender For if a Parson lease his glebe for years and after resigne whereby the lease for years doth become void in this case the covenants of the lease as to the time before the resignation shall be said to be in force still Where a covenant is become impossible to be done by the act of God as where one doth covenant to serve another seven Co. 1 98. Plow 286. years and he die before the seven yeares be expired by this the covenant is discharged Where there is an expresse covenant in a deed
taile in fee with warranty and die without issue this is collaterall to the middle sonne In the same manner it is in case where the middle sonne hath the same land by force of the same remainder because his elder brother made no discontuance but died without issue of his body and after the middle brother doth make a discontinuance with warranty c. and dieth without issue this is a collaterall warranty to the youngest sonne And in this case if any of the sonnes be disseised and the father that made the gift c. releaseth to the disseisor all his right with warranty this is a collaterall warranty to the son upon whom the warranty doth descend If lands be given to A and the heirs of his body and Co. 8. 52. Litt. Sect. 713. for want of such issue to E his sister and the heires of her body and A doth make a feoffement with warranty and die without issue having two sisters E and S this is a collaterall warranty to E. If lands be given to a man and the heires of his body begotten Litt. Sect. 741. who taketh a wife and hath issue a son by her and the husband doth discontinue the taile in fee and dieth and after the wife doth release to the discontinuee with warranty and dieth and the warranty doth descend to the sonne this is collaterall to him If tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile doth release to the disseisor with warranty in fee and dieth without ifsue and the tenant in taile hath issue and dieth this is collaterall as to the issue If tenant in tail have issue two daughters and die and the elder enter into all to her own use thereof make a feoffment in fee with warranty and die without issue this warranty as to the other sisters part is collaterall but not as to her own If Co. super Litt. 373. the husband and wife tenants in speciall tail have issue a daughter and the wife die and the husband by a second wife have issue another daughter and discontinueth in fee and dieth and a collaterall Auncestor of the daughters release to the discontinuee with warranty and dieth and the warranty descend upon both the daughters this is a collaterall warranty to them If lands be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the father die and the brother release with warranty and die without issue this is collaterall to the daughter If tenant in taile make a lease for life the Litt. Sect. 738. remainder to another in fee and a collaterall Auncestor doth confirm the estate of tenant for life with warranty and die and after the tenant in taile die having issue this is a good binding collaterall warranty during the estate for life And in all these and Litt. Sect. 712. Co. super Lit. 374. Co. 10. 96. Stat. of Glouâ— ch 3. Co. super Litt. 365. Stat. 11 H. 7 chap. 20. such like cases of a collaterall warranty whether the right bee the right of an estate taile or the right of an estate in fee simple that is to be barred it is a bar without any assets for in this case the rule is That a collaterall warranty is a barre to him that demandeth fee simple and also to him that demandeth fee taile without any other descent of lands in fee simple so that the heir on whom the same warranty is descend can never have the land so warranted whiles the warranty doth continue in force but is bound thereby except it be in some speciall cases restrained by Act of Parliament as where the husband alone during his wives life or after her death being tenant by the curtesie make a feoffement by fine or deed of his wives land which shee hath by descent or purchase with warranty this will not barre her heire without assets of other lands in fee simple descended from the same Auncestor that made the warranty Or where a wife after her husbands death shall alone or with her succeeding husband alien release confirm or discontinue with warranty the land she holdeth in dower or in taile of the gift of her former husband or any of his Auncestors this warranty is voidable and will not binde with assets If the son purchase land c. and after let it to his father or any Litt. Sect. 699 700 701 702. Finch 82. Co. super Litt. 〈◊〉 10. What shall be said a warranty that doth begin by Dissâ—â—sin And wâ—at such a warranty doth work other Auncestor for years or at will and he by his deed doth infeoffe a stranger and that with warranty and after dieth whereby the warranty doth descend upon the heire this warranty doth commence by disseisin So if tenant by Elegit Statute Merchant Guardian in Chivalry or Soccage or because of Nurture make a feoffement with warranty and this warranty doth descend on his heir this warranty doth commence by disseisin So if one that hath no right at all enter into my land and make a feoffement to another with warranty So if one Coparcenor enter into the whole land and make a feoffement in fee with warranty this warranty as to the one moity doth begin â—y disseisin So if father and sonne purchase lands to them jointly c. and the father alien the whole to another with warranty c. and after the father dieth this warranty as to the one moity doth beginne by disseisin But if the purchase bee to them two and the heires of the sonne it is otherwise for if the sonne enter in the life time of the father the warranty is avoided for all but if hee doe not enter then as to the fathers moity it is a collaterall warranty And if the purchase be to the father and son and the heirs of the father and the father alien with warranty c. in this case the warranty is good for the whole If the father be tenant for life the remainder to his son and heir Co. 5. 80. super Litt. 366. 367. in fee and the father by covin and consent of purpose to bar the heir by a collaterall warranty maketh a lease for years to the end that the lessee should make a feoffment in fee that the father may release to the feoffee with warranty and all this is done accordingly and the father dieth and the warranty doth descend to the sonne in this case the warranty shall be said to beginne by disseisin But if the father in this case make a feoffement in fee with warranty and die this is a good warranty to binde the sonne albeit it be done of purpose to bar him So if one brother make a gift in taile to another and the uncle doth disseise the donee and infeoffeth another with warranty the uncle dieth and the warranty descendeth on the donor and
then the donee dieth without issue this warranty doth begin by disseisin So if the father and son and a third person be jointenants in fee and the father maketh a feoffment in fee of the whole with warranty and dieth and then the sonne doeth in this case as to the part of the third person and to the part of the sonne the warranty shall be said to beginne by disseisin But releases at this day by a tenant for life to a disseisor or any other without covin albeit it bee to the intent to barre him in reversion shall barre him for intent without covin and disseisin shall not avoid a warranty And examples of warranties that doe begin by disseisin have these qualities 1. That for the most part the disseisin is done immediately to the heire that is bound by the warranty 2. The warranty and disseisin are simul and semel And yet if a man disseise another with intent to make a feoffment with warranty albeit the feoffement be made twenty years after the disseisin yet it shall be said to bee a warranty that doth beginne by disseisin But in all these cases of warranties that doe beginne by disseisin this is the rule That they are altogether void and without force as to all others but to the parties themselves that doe make them and therefore they do not barre or binde any others at all of their right that have any And the same Law is of a warranty that doth begin by abatement or intrusion that is when an abatement or intrusion is made of purpose to make a feoffement in fee with warranty And so also it is where the tenant dieth without heir and an Auncestor of the Lord doth enter before the entry of the Lord and make a feoffement in fee with warranty in this case this shall not binde the Lord because it doth begin by wrong All warranties in generall are favourably taken in Law because 11. How a warranty shall be taken they are part of mens assurances Every warranty in Law is taken for and hath the effect of a lineall warranty The warrnaty that is made by Dedi Concessi or Dedi only in a Co. 4. 81. 5. 17. feoffement is and shall be taken for a generall warranty against all persons to the feoffee and his heires during the life of the feoffor onely albeit there be no service reserved by the deed nor heir named but it shall not extend to the assignee of the feoffee And if there be any service reserved on the deed then it shall extend against the heir also The warranty in Law that is made upon a gift in tail or lease for Co. 4. 81. super Litt. 384. life rendring rent is a speciall warranty against the donor and lessor and his heirs and assignes so that the donee or lessee may vouch the grantor after the grant of the reversion or the grantee of the reversion after the atturnment of the tenant at his election The warranty in Law that is made upon an Exchange is special in Co. 4. 121. super Litt. 384. divers respects for it extendeth reciprocally to and against the heires of both parties and it doth extend only to the same land that is given in exchange and none other and no use can be made of it but by voucher for no Warrantia Cartae doth lie upon it So also the warranty that is made in dower is taken to extend only to the other two parts of the land The warranty in Law that is made upon the tenure of Homage Co. super Litt. 384. Auncestrel extendeth reciprocally to the heires and against the heires of both parties If a feoffement be made of land to three jointly and the feoffors Co. 5. 59. doe warrant the land to the feoffees and every of them this warranty shall be joint and not severall But if the estate be severall as if one grant white acre to A and blacke acre to B and grant to warrant the land to them and either of them in this case the warranty shall be severall If a man of full age and an infant join in a feoffement with warranty Co. super Litt. 367. this shall be taken for a good warranty as to the whole for him that is of full age and void for the infant and not void in part and good in part Co. super Litt. 386. If a man make a feoffment in fee bind his heirs but not himself to warranty in this case and by this his heirs shall not be bound and Co. super Litt. 47. 385. Dier 42. Kelw. 108. Co. 6. 69. a man binde himselfe to warrant and not his heirs by the feoffement in this case the feoffor himselfe is bound to the warranty but not his heirs for it is a maxime of Law That the heir shall never be bound to any expresse warranty but where the Auncestour was bound by the same warranty If one make a feoffment to B and his heirs and thereby doth grant to warrant the land and doth not say to B and his heirs yet this warranty shall be taken to extend to them But if the feoffor doth grant to warrant the land to B and doth not say to his heires this shall not extend to his heirs And if in this case the warranty be to B and his assignes it shall not extend to his heirs neither shall the assignees take advantage of it after the death of B. And if the warranty be to B and his heirs and not to his assignes also this shall not extend to his assignes If one make a feoffment to A habendum to him and his heirs and binde himselfe and his heirs to warrant the land in forma praedicta in this case the warranty shall extend to the feoffee his heirs If one grant to warrant land to another and his heirs and doth Co. 1. 1. not say against what persons this shall be taken for a generall warranty against all men If one make an estate and grant to warrant the land but doth not say how long this shall bee taken for as long as the estate to which the warranty is knit doth last If a warranty be made against any speciall persons it shall extend Dier 328. to them and no further and it shall extend in all cases for and to all titles and entries upon title and it shall not in any such cases extend to tortious and unlawfull entries If a man bee seised of a rent-seck issuing out of the Manor of Co. super Litt. 366. Dale and hee take a wife and the husband doth release to the terre-tenant and warranteth tenementa praedicta and dieth this warranty shall extend to the rent as well as to the land and therefore if the wife sue for her thirds of the rent the terre-tenant may vouch the heire And regularly the warranty doth extend to all Co. super Litt. 388 389. things issuing out of the land viz. to
minde hath been divided amongst divers persons and each person hath a certaine number of acres but in no certaine place the custome being to allot each person his number one yeare in one place and another in another alternis vicibus in this case either of these persons may make a feoffment of his part by the name of so many acres lying in such a meadow without any bounding or describing of it If parceners have made partition of their land that the one Co. super Lit. 4. 48. shall have it from Easter to Lammas to her and her heires and the other shall have it from Lammas to Easter to her and her heires or that the one shall have it one yeare and the other the other yeare alternis vicibus Or if they have two Manors descended and they agree that the one shall have the one Manor one yeare and the other the other Manor the same year and the next year that he that had the one shall have the other alternis vicibus for ever in these cases the parceners may either of them make a feoffment of this land or Manor If there be any lease for life or years in being of that land or Co 2. 32. Dier 340. 18 Perk. Sect. 221. 21 H. 7. 7. Perk. Sect. 220. 46 E. 3. 2 5. Bro. Feoffments de terre 68. Co. super Lit. 48. 49. 52. thing whereof the feoffment is made and he that hath this lease for 3. In respect of the presence or possession of other persons on the land at the time of the feoffment made life or years or in his absence his bailife or servant keeping in the house or land whereof the feoffment is to be made doth give leave and agree that livery of seisin shall be given upon the house or land by the lessor himselfe or by his atturny and for this cause doth leave the possession of the house or land and thereupon livery of seisin is made this is a good feoffment and a good livery of seisin and yet it doth not prejudice the estate of the lessee And if the lessor make a feoffment of the land to a stranger by assent or licence of the lessee the lessee then being on the laÌ„d this is a good feoffment In like manner as it is where the lessor doth enfeoffe a stranger to which the termor doth agree saving his terme And if the lessor make such an entry upon the lessee for life or years as to put him out of possession of the house or land and then he doth make a feoffment and livery of seisin of it or if the lessor in the absence of the lessee his wife servants and children enter upon the thing in lease and make a feoffment and livery of seisin thereof in these cases there is a good feoffment to passe the reversion for in these cases when the lessee for life or years doth reenter the law doth adjudge this to be an atturnement in law But if a lessor will enter upon his lessee and against his will the lessee being still in possession of the land Atturnement make a feoffment of the land and give livery this is void and can never take effect as a feoffment And therefore if there be a conveyance made of a house and land thereunto belonging in lease and the feoffor come into part of the land without the leave of the lessee and there make livery of seisin of that part in the name of all the rest of the land the lessee himselfe his wife child or servant being then upon any other part of the land and especially if they be in the house this is no good feoffment for any part of the land but void for the whole * Veynors case Triâ— 7 Jac. B. R. And yet if the lessee for years make an under-lease of part of the land to another and the feoffor doth make a feoffment of this part and give livery of seisin upon this part in this case the possession of the first lessee in the residue will not hurt the feoffment or livery for this part but it is a good feoffment Also if the lessee give the lessor leave to make livery and depart and Co. super Lit. 48. leave a servant of the lessee upon the land in this case it seemes his presence upon the land whiles the livery is made will not hurt And so if the lessee leave the possâ—ssion and leave nothing upon the land but his cattell they will not keep his possession nor prejudice the livery of seisin If a lease be made of one acre to one and another acre to another 21 H. 7. 7. Dier 18. and the lessor make a feoffment of both these acres and make livery in one of them in the name of both acres this is no good feoffment for the other acre for by this livery he is not put out of possession of that acre So if one make a feoffment of two Manors the one in possession and the other in lease and give livery of seisin of the Manor in possession in the name of both the Manors this is no good feoffment for the other Manor neither will it passe by this feoffment So if one make a lease for years of a house and after make a feoffment in fee of the house and of a close adjoining and give livery of seisin of the house the termors wife and children being then in the house in this case this is no good livery neither to passe the house nor the close If lessee for life or years make a feoffment of the land the lessor Perk. Sect. 2â—2 Dier 362. being then upon the land and not contradicting it it seemes this Forâ—â—iâ—ure is a good feoffment and that the presence of the lessor upon the land especially if he doe not contradict it will not hinder the virtue of the feoffment as against the feoffor and all others but the lessor may enter afterwards for the forfeiture notwithstanding if hee please If the husband alone make a feoffment of the land he hath in the Perk. Sect. 223. Husband and wife right of his wife or that he hath jointly with his wife his wife being then upon the land and disagreeing to it in this case the feoffment is good against the feoffor and all others but the wife notwithstanding her presence and disagreement but the wife may after his death avoid it If one jointenant make a feoffement of the whole land his companion Perk. Sect. 220. Iointenant being then upon the land by this there doth passe no more but a moity and the feoffement is void as to the moity of his companion for the feoffment doth not give his moity If a man enter into my land by wrong and make a feoffement Perk. Sect. 219. of it to a stranger I being then upon the land this feoffement is void for in this case the Law doth adjudge me to be alwayes in and
never out of the possession If the King have any possession of the land by wardship or otherwise Prerogative Perk. Sect. 219. Bro. Feoffment 3. 17. 21 H. 7. 7. 2 H. 6. 5. 1 H. 7. 5. Stamf. prer Regis 40. the owner of the land can make no feoffement of it And therefore if the King be entituled to land by wardship or primer seisin after office found after the death of an Auncestor of one of his tenants in this case it is said the feoffement of the heire is void and passeth nothing for the King is still in possession And if it be before office found it will be all one for the office shall relate to the death of the Auncestor And yet in these cases the feoffment is good against the heire himself and all others besides the King If the heir before office found enter and make a feoffment and then the King doth pardon the feoffee in this case the feoffement is good And yet such a feoffement after office with a pardon is void And the like law is if the entry bee before office and the pardon after the office for this is void also But if a man bee outlawed for debt or trespasse and thereupon the Outlawed persons King hath the profits of the lands in this case the owner may make a feoffment of this land notwithstanding Divers persons cannot make a feoffement but it must be by deed Fitz Faits Feoffements 32. See Grant Numb 4. 4. In respect of the manner of making of it as corporations and such like Also divers things cannot be granted by a feoffement but the feoffement must be made by deed for a feoffement cannot be made of a reversion of land but it must be by Reversion deed But a lease may be made of land to one for life the remainder to another in fee and this may be done without any writing by word only Also a feoffment may be made of the moity third or 4th Litt. Sect. 60. super Litt. 190. part of a manor or of a peece of land without deed And yet if one be seised of a manor whereunto an Advowson is appendant and he make a feoffment of three acres parcell of the manor together with the Advowson to two men Habendum the one moity with the Advowson to one of them and the other moity to the other in this case the feoffment cannot be well made unlesse it by deed If a lease be made for five years on condition that if the lessee pay Litt. Sect. 250. to the lessor within the two first years ten pound then that he shall have the land to him and his heires or otherwise but for five years in this case if livery of seisin be made to the lesse before his entry this is a good feoffment Et sic de similibus Every feoffment also whether it be made by deed or without Livery of seisia deed must be made with livery of seisin and this livery of seisin must Lit. Sect. 59. 66. Co. super Lit. 52. Doct. Stud. 13. be made according to the rules of livery and seisin herein after laid downe for this is of the essence of a feoffment and a feoffment is not accounted perfect untill livery of seisin be made for untill then the feoffee hath only an estate at will in the land and the feoffor may put him out when he will And if either of the parties die before the livery of seisin be made the feoffment is void and no warrant of atturny to make livery can be executed after the Equity death of the feoffor or feoffee neither is there any remedy in this case to get the assurance to be made perfect but in a Court of Equity But in case where there are many feoffees there the death of one or some of them will not hinder the livery but it may be made to him or them that doe survive we must see therefore in the next place what this livery of seisin is Livery of seisin or giving of possession is a solemnity or overt 5. Livery of seisin Quid. New terms of the law ceremony required by law and used for the passing of lands or tenements corporall as an evidence or testimoniall of the willing departing by him that makes the livery from the thing whereof livery is made and the willing acceptance thereof by the other party And West 2. part Symb. Sect. 251. Co. super Lit. 48. this is as ancient as a feoffment for no feoffment is made without livery of seisin albeit livery of seisin be sometimes made upon other conveyances And it was first invented as an open and notorious act to this end and that by this meanes the country might take notice how lands doe passe from man to man and who is owner thereof that such as have title thereunto may know against whom to bring their actions and that others may know that have cause of whom to take leases and of whom to require wardships c. And by this means if the title come in question the Jury can the better tell in whom the right is And of this livery of seisin there are two kinds 1. A livery in deed 2. A livery in law called a livery Co. super Lit. 48. 6. Quotuplex within view The livery in deed is when the feoffor donor c. by himselfe or another taketh the ring of the doore of the house or a turfe or twig of the land and delivereth the same upon the land unto the feoffee donee c. in the name of seisin of the house or seisin of the land And this is done sometimes by the parties themselves if they be present sometimes in their absence by their atturnyes or procurators The livery in law is where the feoffor saith to the feoffee being in view of the land I give you yonder house to you and your heires goe enter into the same and take possession thereof accordingly or the like Because this manner of conveyance by feoffment is so ancient Bio estates 4. Plow 28. 29. 7. The nature and operation of it therefore this ceremony being inseparably incident to a feoffment is much favoured in law And therefore it is expounded and taken strongly against him that doth make it and beneficially for him to whom it is made And for this cause it worketh not only to transmit the present estate but also to barre all present and future rights and possibilities If therefore one make a lease for life to I S the remainder to the right heires of I D which I D is then living and give livery of seisin according to the deed in this case albeit he in remainder be not capable of this remainder yet by the livery it shall passe out of the feoffor and shall be in Abeyance during the life of I S. So if a feoffment be made to one heredibus without the word Suis and
feoffees donees or lessees then one in such cases albeit all of them die but one the livery of seisin may be made to that one that doth survive and it will be good to him to execute the estate in all the land And so it is if there be a warrant of atturney made by a Corporation aggregate as a Mayor and Communalty Deane and Chapter or the like to give livery of seisin in this case the death of the Mayor c. will not determine the authority and therefore in that case the livery of seisin may be made after his death 2. If it be a lease for years with a remainder over in fee the livery must be made to the lessee for yeares before his entry or at the time Co super Lit. 49. 216. Perk. Sect. 205. when he doth enter for that purpose for afterwards it cannot be made Quod semel meum est amplius meum esse non potest Quere also whether the law be not so in all other cases and let men take A caveat heed they doe not as commonly they doe enter into the land before they have livery of seisin made thereof unto them And yet it seemes the livery of seisin is good when it is made afterwards by Co. 2. 55. 3. It must not be made before the estate begin for Co. super Lit. 217. if a lease be made for years to begin at Michaelmas with a remainder over and the livery of seisin is made before Michaelmas this livery of seisin is void for if a livery worke at all it must worke presently and so it cannot in this case because it is before the estate doth begin If an estate be made of divers peeces of land in divers villages in Co. super Lit. 48. Perk. Sect. 227. 228. Doct. Stud. 3. Lit. Sect. 61. 418. Perk. Sect. 226. Fitz. feoffments Faits 111. the same county in this case the making of livery of seisin of and 3. In respect of the place or thing wherein it is made in any part thereof in the name of all the rest or of one parcell according to the deed albeit he doth not say in the name of c. sufficeth for all if all the peeces be in the grantors possession and out of lease But if the peeces of land lie in divers counties or in the same county and they be in lease or out of the possession of the feoffor contra for in that case the making of livery in one part in the name of all the rest is not sufficient for the rest for in this case it is requisite that livery of seisin be made upon and in some of the lands in both counties and upon every parcell of land that is out of possession or at least in some parcell of the land in the occupation of every severall tenant And yet if one part of a Manor be in one county and theother part in another county in view of that part in this case it seemes livery of seisin in the one part in the one county in view of the other part in the other county is good sufficeth for all So if the seite of a Manor lie in one county and the rest of the Manor in another county in this case the making of livery in the scite of the Manor is sufficient for the whole Manor If a feoffment be made of the Manor of Dale in Sale the which Manor Perk. Sect. 228. doth extend in Dale and Sale and livery of seisin is made accordingly in Dale only and not in Sale also by this feoffment there doth passe no more of the Manor but that which is in Dale only If I 9 H. 7. 25. per Frowick be seised of one acre in fee and of another acre for life and I make a feoffment of both acres and make livery of seisin in that acre whereof I am seised in fee in the name of both acres in this case it seemes this sufficeth to passe both the acres But if I be seised of one acre in fee and possessed of another acre for years and I make a feoffment of both acres and livery of seisin in that acre only whereof I am seised in fee in the name of both the acres contra for this is as If I make a feoffment of land whereof I am seised and of other land whereof I am not seised c. If I be seised of two acres Fitz. Faits Feoffments 2. of land and let one of them for years and then make an estate of both of them to another and make livery of seisin in that I have in possession in the name of both the acres this will not serve to passe the other acre but livery must be made in that acre also And accordingly it was agreed in a case in the Kings Bench Hil. 38 Eliz. which was that a man was seised in fee of a Manor and Mountague versus Jefferies other lands called Groves and he made a feoffment of it Groves being then in lease for years and a letter of atturny to give livery and the atturny made livery of the Manor in the name of the rest the lessee being still in possession of Groves in this case it was agreed that this was no good feoffment for Groves When a feoffment is made of a house and land the livery of See infra seisin is most aptly to be made of and in the house in the name of the rest and at the doore of the house c. And when a feoffment is made of a Rectory or Parsonage the livery of seisin may be made in the Parsonage house or if there be no house it may be made upon the Glebe or if there be neither it may be made at the ring of the Church doore In the making of every livery of seisin it is requisite that all persons 4. In respect of the presence or possession of others See before Numb 4. that have any lawfull estate and possession in the thing whereof livery is to be made as lessees for life years and such like joine in the making thereof or be removed thence for every livery ought to bring an immediate possession to the feoffee donee c. If lessee for years make a feoffment and a warrant of atturny to Dier 362. give livery of seisin and the atturny make livery of seisin the lessor being present upon the land and not contradicting it it seemes this is a good livery of seisin The presence of the feoffor donor c. upon the land after he Bro feoffments 24. hath delivered seisin to the feoffee donee c. albeit he stay upon the land a while and doe not depart and leave the feoffee c. in possession will not hurt the livery See more supra Numb 4. Livery of seisin may be made of any corporall thing as Manors Co. super Lit. 49. 5. In respect of the matter whereof
being made and taken by their atturnies or deputies that have a good authority and do well pursue it And therefore if the conveyance be made of divers lands and they lie in one county and a warrant of atturny is made to give livery generally and the atturny doth make it in one part of the land in the name of all the rest this is a good livery Et sic de similibus If a man be seised of black acre and white acre and he make a Co. super Litt. 52. deed of feoffment of both these acres and a letter of Atturney to enter into both these acres and to deliver seisin of both of them according to the form and effect of the deed and he doth enter into black acre and deliver seisin secundum formam cartae in this case the livery of seisin is good albeit he doe not enter into both the acres nor into one acre in the name of both And if the feoffment bee made to two or more and the warrant of Atturney is to make livery to them both and the Atturney doth make livery of seisin to one of the feoffees secundum formam effectum cartae in this case the livery is good to both and yet he that is absent may wave the livery And yet if a man be disseised of black acre and white and a warrant Co. super Litt. 52. 258 Perk. Sect. 187 188 189 of Atturney is made to one to enter into both these acres and to make livery and the Atturney doth enter into one acre onely and make livery of seisin there secundum formam cartae in this case the livery of seisin is void for all for in this case he doth lesse then his authority So if a man make a letter of Atturney to deliver seisin to I S upon condition and the Atturney doth deliver seisin absolutely this livery of seisin is void And so in all such like cases where the Atturney doth lesse then the authority and commandement all that he doth is void But for the most part where the Atturney doth that which he is authorised to doe and more also it is good for so much as is warranted and void for the rest And therefore if the letter of Atturney be to give livery of Perk. Sect. 109. Co. super Lit. 258. seisin to I S and the Atturney give it to I S and W S this livery is good to I S and void to W S. So if the letter of Atturney be to give livery of seisin of white acre only and he make livery of white acre and black acre also this livery is good for white acre and void for black acre So if the letter of Atturney be absolute and the Atturney give livery upon condition some hold this to be good and the condition to be void If a letter of Atturney be made to two jointly to make or take Co. super Litt. 49. livery of seisin and one of them alone doth it without the other this is a void livery But otherwise it is when it is made to two jointly or severally for there one of them alone may doe it If a letter of Atturney be to make livery of seisin after the death of another man and the Atturney doth make livery of seisin during that mans life this livery is void Litt. Sect. 359. Co. super Litt. 48. 122. Fitz. Estoppel 177. 7 Ed. 4. 25. Co. super Litt. 49. Fitz. feoffments faits 23. Livery of seisin is sometimes made single and without any relation to the deed whereby the estate upon which the livery is made is 11. How it shall enure and be taken and construed created at all and sometimes and most commonly it is made with reference to the deed in these or such like words secundum formam cartae In the first case the estate is oftentimes made upon the livery and then there may bee one estate contained in the deed and another made by the livery also there may passe more land by the livery then is in the deed and by this means when there is a fault in the deed so that the land will not passe by the deed it may perhaps passe by the livery but in this case then there must be apt words used in the making of the livery to create the estate also as well as to give the possession But where the livery of feisin is made with relation to the deed there it must take effect according to the deed or not at all for these words secundum formam cartae are to bee understood according to the quantity and quality of the effectuall estate contained in the deed And therefore if one make a deed of feoffment to another and in the deed there is contained no condition at all and when the feoffor doth make livery he doth make livery upon condition or if the deed contain an estate to him and his heirs and he maketh livery of an estate in taile or for life in these cases there doth passe nothing by the deed And yet if there be apt words used to create such an estate at the time of the livery made such an estate may be made by the livery without the deed and then the deed shall be void But if in these cases the feoffor say when he doth make livery on condition in taile or for life secundum formam cartae in this case there is a good feoffment made according to the deed and the additionall words are void So if a man make a lease for years and make livery secundum formam cartae this is but a lease for years still And if A give land to B To have and to hold after the death of A to B and his heires this is a void deed and therefore if the livery of seisin be made secundum formam cartae the livery of seisin is void also But if when he doth give livery of seisin he give it to him and his heires without these words secundum formam c. or if in the making of livery he say Here I deliver you seisin of this land To have and to hold to you and your heirs for ever or the like this may make a fee simple And so if one make a deed of feoffment of two acres and after make livery of feisin of four acres in this case if there bee words in the livery of seisin sufficient to make a new estate the other two acres may passe also If A by deed give land to B to have and to hold after the death Co. 2. 55. 5. 94. Greenewoods case B. R. Mich. 17 Jac. of A to B and his heirs this is a void deed and therefore if upon this deed livery of seisin be made before the day by the party himself or at or after the day by his Atturney secundum formam effectum cartae the livery is void also for it cannot enter so And yet if a lease be made for life
wooll of his sheep for seven years Perk Sect. 90. Wooll this is a good grant If one being a Parson give to another all the wooll he shall have Fitz. Grant 40. for tithe the next year this is a good grant If one grant to another his horse or his cow in the disjunctive Bro. Done 19. Incertainty this is a good grant not withstanding this incertainty and the donee shall have election and by that make the grant good Any estate that a man hath in fee simple fee taile for life or years 2. Inrespect of the estate property possession of the grantor in any lands c. or any rent or profit apprender out of the same is grantable from man to man in infinitum And he that hath any such estate of any lands may charge it with any rent or profit to be taken out of it as long as the estate of the land doth last But an estate at will is not grantable over And if an estate be made to a man and his heires without the word Assignes yet he may assigne it at his pleasure for Assignes is included within Heires An Interesse termini i. a lease for years to commence in futuro is 22 E. 4. 37. Perk. Sect. 91. grantable before the terme doth begin whether it be a lease of the land it selfe or any rent or other profit out of it The interest or estate that a man hath by extent is assignable Co. 4. 64. from man to man at pleasure The reversion upon an estate taile is grantable And yet the tenant Co. 6. S. Geo. Cursons case Co. 1. Altonwoods case in taile in possession by the suffering of a common recovery may barre him in reversion of any fruit of it If an estate be made of land upon condition as if A make a feoffment Co. 1. 147. 10. 48 49. Lit. chap. Confirmation to B on condition that if A pay twenty pound he shall have the land againe in this case A and B together may at any time before the performance of the condition joine together and grant this land or charge it with any rent c. and this will be good for it is a maxime in law Fee simple land may be charged one way or other And in this case B may grant over his estate alone but it will be subject to the condition And if B grant a rent out of the land to a stranger and after the condition is performed and the feoffor enter in this case he shall avoid the rent But in this case A cannot grant Co. 1. 147. for he hath nothing but a possibility If one enfeoffe divers to the use of his sonne and heire upon condition and before the time of performance of the condition the father and sonne joine to grant or charge the land this is a good grant or charge If the tenant in taile and he that is next in remainder in fee joine Co. super Lit. 45. Co. 10. 48 49 in the grant of a rent charge in fee and after the tenant in taile doth die without issue in this case this is a good grant and charge against him in remainder And if A doth bargaine and sell land to B by indenture and before inrolment they doe joine to grant a rent charge to C by deed in this case this is a good charge and grant whether there be any inrolment or not And so if donor and donee in taile grant a rent charge out of the land then the donee die without issue in this case the grant is good to bind the donor If land be granted to two men and to the heires of their two bodies Co. super Lit. 182. begotten in this case albeit they have severall inheritances after their death yet neither of them can grant away his estate after his life for they are divided only in supposition of law One coparcener of a seigniory may grant his part to a stranger Perk. Sect. 73. Perk. Sect. 103. If two Jointenants be of a plow land and one of them doth grant to a stranger common of pasture for beasts without number to be taken in the same land this is void If two Jointenants be of a reversion one of them grant the whol Iointenants Perk. Sect. 80. Perk. Sect. 65. Dier 12. 33. this is void for a moity If a man grant or charge that which is none of his and that wherein he hath no property it being in the grantee or a stranger the grant is void And therefore if a man grant a rent charge out of the Manor of Dale or grant a reversion of land and in truth the grantor hath nothing in the Manor of Dale or in the land in this case the grant is void And albeit the granter doe afterward purchase the Manor or the land yet this will not make the grant good But if the grant be by fine or by indenture there in some cases it shall be good by way of estoppell And in this case Estoppell albeit the party recite that it is his owne yet this will not mend the cases And therefore if a man recite that he hath a rent of tenne pound a yeare and then grant five pound a year parcell of it in this case if he have no such rent the grant is void A Shepherd Bailif or Parker cannot give or grant away the Servant Bro. Done 56. 4. goods of his master without authority And yet it seemes the servant of a Taverner or Mercer may give or grant his masters Wine or Wares And if a wife give or grant the goods of her husband Husband and Wife this is a good gift or grant untill the husband disagree to it and by his agreement it is made good for ever If a man have a lease for yeares of land and make a lease for life Plow 524. 525. of it or charge it for longer time then the lease for yeares doth last in this the grant is good for so long as the lease for yeares doth last and no longer But if he make a lease for life and give livery of seisin he doth forfeit his estate Regularly a man cannot grant or charge that which is not in Co. super Lit. 214. Perk. Sect. 65. 86. his owne possession albe it he have a right to it And therefore if a man be disseised of his land and before he hath entred into or recovered the land he doth grant or give the land or his right to the land to a stranger or grant a rent charge out of the land to a stranger in these cases the grants are not good And yet such grants by fine may be good by way of estopell And by a release also the right may be extinct But if one that hath a reversion upon an stoppell estate for life and he grant a rent issuing out of this land in this Perk. Sect. 92. 98.
Co. super Lit. 46. case the grant is good and the charge shall fasten upon the land after the estate of the tenant for life is ended And if a man grant common or rent notwithstanding that a stranger take the rent or use the common at the time of the grant yet this grant is good for a man cannot be out of possession of these things but at his pleasure †Hil. 18 Jac. B. R. per. 2 Justices And if a lease for years be made to me I may grant away my estate before my entry And if the lease be to begin at a day to come I may assigne over my interest before the day come for in this case the interest is in me from the time of making of the lease * Perk. Sect. 92 93. Fitz. Done 3. Bro. Done 13. Dier 90. 30. Co. 4. 62 63. Dier 305. 20 H. 6. 22. Perk. Sect. 59. Co. 11. 50. Also I may give or sell my goods that I have not in possession and therefore if a man take my goods out of mine or another mans possession I may afterward give or grant these goods to him or another man and this grant or gift is good A lessor cannot give or grant the trees growing on the ground Tenant for life Trees of his lessee for life or yeares without the licence of the lessee except they be first cut downe by the lessee or some other for then he may And if there be lessee for life and the lessor give the trees growing on the ground and after the lessee for life dieth in this case the donee cannot take them for that at the time of the gift a property of them was in the lessee But if a tenant in fee simple give or grant the houses standing or trees growing on the ground he hath in his possession in this case the grantee or donee may take them after the death of the grantor and that albeit they be not cut or taken downe before his death And yet if the tenant in taile give or grant the trees growing upon his intailed land and Tenant in taile the donor die before the trees be cut in this case the donee or grantee cannot cut them afterwards Howbeit if such a tenant in taile give or grant his emblements of corne growing on the Emblements ground the donee may cut and take them after the death of the tenant in taile And if the tenant in taile give or grant his trees and die before they be cut and afterwards before the issue in taile enter into the land the donee or grantee cut them and take them away in this case the issue in taile can bring no action of trespasse against the donee or grantee for the trees But perhaps if the trees be not removed off the ground he may take them If two coparceners be of an advowson and the one doth present Presentation Dier 35. 15 H. 7. and then he doth grant the next presentation this is a good grant but by this grant doth passe the next he hath to grant for his companion must have the next So if one be seised in fee of an advowson and he hath a wife and he grant the third presentation this is a good grant but it shall be taken for the third he may grant which is the fourth for the wife is to have the third for her dower If a man have granted a thing once he cannot afterwards grant 3. In respect of a former grant of the same thing it again And therfore if a man give or grant me a horse first by word Perk. Sect. Dier 35. 350. Lit. Bro. Sect. 298. Perk. Sect. 102. of mouth and after grant him to me by deed this second grant is void and therefore if there be any fault in this grant in writing it is not materiall And if a man grant to me common of pasture without number in his ground and after make the like grant to another this second grant is void as to me albeit it be good against the grantor And if one grant the next presentation to a Church after the death of the present Incumbent and after grant the same to another or make a lease of land to one for tenne years and after make a lease of the same land to another for the same tenne years or give a horse to one and after give the same horse to another in all these cases the second grant is void But if the first grant or gift be only of part of the thing granted afterwards or of part of the time only the second grant will be good for the overplus And therefore if one be seised of a Manor and demise ten acres of the demesne to tenne years and after demise the whole Manor to another for twenty years this is a good grant for the overplus of the Manor besides the tenne acres presently and for the whole Manor for the last tenne years So if the second grant be to beginne after the first is determined it is good And if the second be such as may be satisfied and not impeach the former both shall stand good And therefore if one that hath an Advowson grant the next Presentation to one and after he doth grant the next Presentation to another and doth not say after the death of the Incumbent in this case the second grant is good and the grantee thereby shall have the second avoidance after the death of the present Incumbent By the grant of an acre of land or of any other thing by the 4. In respect of naming or description of the thing granted Milnaming or Misrecitall Co. 4. 122. Perk. Sect. 114. 116. Co. 10. 106. 107. 11. 47. a Plo. 190. b Co. super Lit. 46. See also Co. 2. in Lanes case which doth seeme to warrant this opinion also Dier the grant is good in a common persons case Bro. Grant name whereby it is called the reversion of that thing if the grantor have no more but a reversion will passe and this mistake will not hurt But it is not so è converso a And yet some have said if one grant a thing in possession by the name of the reversion of the thing this is good to passe the possession Quod non est lex b For if one make a lease for years and before the lessee enter the lessor grant the land by the name of the reversion or the land this grant is void If If one make a lease for life of the demesnes of a Manor rendring rent and after he doth grant the Manor by the name of the Manor this is a good grant for the reversion of the demesnes as well as for the residue of the Manor But if one grant common by the name of the reversion of the common it seemes this is not good And yet if one have common and grant it for life and during that estate he doth grant the common by the name
with the Fitz. Grant 68. Perk. Sect. 68. reversion of all his tenants or by the name of the reversion of all his tenants bond and free which hold for life or years and doe not name them by their particular names these grants are good in these cases and certaine enough If one grant land and say not in what parish or county or village Bro. Grant 53. Co. 9. 47. it doth lie yet if there be any other matter to describe it it seems the grant is good enough and it may be averred where it lieth But if there be no circumstantiall matter in the grant to denote and decipher out where it doth lie it seemes the grant is void for incertainty And therefore if one grant his Manor of Dale or his lands in the occupation of I S or his lands that descended to I S or his lands that did belong to the priory of S or the like these are good grants and certaine enough Id certum est quod certum reddi potest If there be tenant for life of three houses and foure acres of land Perk. Sect. 73. and he in reversion grant the reversion of two houses and of two acres of this land this is a good grant and hath sufficient certainty in it If a grant be incertain altogether and have not sufficient certainty Perk. Sect. 67. in it cannot be made certain by some mater ex post facto it is void And therefore if there be Lord and tenant of three acres of land by fealty and twelve pence rent and the Lord grant the services of the third acre to a stranger this grant is meerly void So if Perk. Sect. 68 69. husband and wife hold an acre of land jointly of I S for their lives and I S grant the reversion of the acre of land which the husband alone doth hold for his life this grant is void So if there be Lord and three Jointenants and the Lord grant the services of one of them to a stranger this grant is void So if one have twenty tenants 9 H. 6. 12. that doe pay him twelve pence a peece rent and he grant five shillings yearly out of these rents and doth not say of which tenants this grant is void for incertainty So if conusance of pleas 44 E. 3. 17. Bro. Grant 52. be granted and it is not said before whom this is utterly void So if one have two tenants and doth grant the reversion of one of them and doth not say which this is void for incertainty So if Dier 91. one grant estovers to another and say not what nor how this is void So if one grant me so many of his trees or of his horses as may be reasonably spared this grant is void And yet if one grant me so many of his trees as I S shall thinke fit it seemes this grant is good And if one grant me one hundred load of wood to be taken Co. 5. 24. by the assignement of the grantor or to be taken by the assignment of I S these are good grants So if one grant me three acres of wood toward the North side of the wood this is a good grant and certaine enough If one grant to one of the children of I S and I S hath more Bro. Done 31. then one and he doth not describe which he doth intend this grant is void for incertainty If one grant to me a rent or a robe twenty shillings or forty shillings or common of pasture or rent in the disjunctive which 9 E. 4. 36. Perk. Sect. 74. is at first very incertaine yet this grant may become good for if I make my election or he pay the rent or performe the grant in either part the grant is now become good So if one be seised of Perk. Sect. 76. two acres of land and he doth lease them for life the remainder of one of them and doth not say of which to I S in this case if I S make his election which acre he will have the grant of the remainder to him will be good So it is when a man hath six horses in his stable and he doth grant me one of his horses but doth not say which of them in this case I may choose which I will have and in these cases when I have made my election and not before the grant is good And if in these cases the grantee doe not make his election during his life it seemes the grant will never be good If one be seised Bro. Grant 77. of land and lease it for yeares rendring tenne shillings rent and after he doth grant a rent of tenne shillings out of this land to a stranger in this case albeit there be some incetainty in the grant yet this is a good grant of a rent of tenne shillings but it shall be taken a grant of a new and not of the old rent and therefore shall not take effect untill the particular estate be ended See more to this point in Deeds and their Exposition chap. 5. Numb 15. and Fine chap. 2. Numb 7. In some cases albeit there be in a Grant a good grantor and a 5. In respect of matter in some other parts of the Grant 1. In the commencement of the estate good grantee and a thing granted and all these are duly and certainly described yet the grant may be void for some fault in some other thing touching the grant as 1. In the commencement of the estate For if a man be possessed of a terme of yeares albeit it Bro. Grant 154. Co. 1. 155. Plow 520. be one hundred yeares or upwards and grant to another all the residue of this terme of years that shall be to come at the time of his death this grant is void for incertainty And yet if a man possessed of such a terme in land grant the land to another To have and to hold to him after the death of the grantor for fifty yeares or for two hundred years these are good grants and in the first case the grantee shall have fifty yeares if there be so many to come of the terme of one hundred years at the death of the grantor and in the last case the grantee shall have the land for the whole one hundred years or so many of them as are to come at the death of the grantor So if one grant any thing that doth lie in livery or in grant and that is in esse at the time of the grant in fee simple fee taile or for Dier 58. Co. 5. 1. life and the estate is to begin at a day to come this for the most is void howbeit in some cases the livery of seisin will helpe it But Incertainty Pase 7 Jac. Deâ—â—s case a lease for years to begin in futuro is good enough And if a lease be made to one for yeares or for yeares determinable upon lives and after a lease
may bee made and this shall be sufficient to perfect the grant of the remainder to B. If I grant a reversion to one man and before the atturnment of Co 6. 68. 11 H. 7. 12. the tenant had to perfect the grant he doth sell this reversion to a third man in this case the tenant may atturn to the second grantee and this will make the grant good to him But if the atturnment be made to both the grantees it is void for incertainty An atturnment may as well be made to cestuy que use of a reversion as to the grantee of the reversion himself And it seemes it Co. super Lit. 310. must be made to him and not to the grantee of the reversion For Hardings case it was agreed in the Court of Wards Hil. 18 Iac. That if a reversion be granted to B to the use of C that the atturnemnt must bee made to C and not to B who is but an instrument In all cases regularly where atturnment is necessary it must Co. 1. 151. super Lit. 310. Lit. Sect. 551. Perk. Sect. 263. 231. Co. super Lit. 315. 2. 35. 7. When and at what time the atturnment must be made be made in the life time of the parties Grantor and Grantee or Exchangor or Exchangee for if either of them die before the atturnment be made the grant or exchange is void And therefore if a Manor be granted and livery of seisin be given upon the demesnes thereof and one of the tenants die before atturnment be made by him his tenement will not passe and the grant as to that part will be void for in this case all the tenants but tenants at will must atturne And albeit the grant of the reversion be to begin at a day to come and after the death of either of the parties yet must the atturnment be made in the life time of the parties or otherwise the grant will not be good And yet an atturnment may be made after the death of the tenant by his heire and after the Conveyance of the tenant by his assignee If a lease be made of a reversion to beginne at a day to come Co. 2. 35. in this case the atturnment may be made before or after the day so it be made in the life time of the parties If one grant his reversion of white acre or black acre and Co. super Lit. 310. the tenant atturne to the grant before the grantee have made his election which acre he will have this is a good atturnment If a man grant his reversion by deed to one and after and before the tenant doe atturne he levy a fine or make a feoffment Co. super Lit. 309. 310. 8. 82. 4. 61. Kelw. 163. of the land to another in this case it seemes the atturnment after comes too late but if the fine or feoffement be but of part of the land granted before in reversion in this case the first grant after atturnment shall bee good for the residue And if a woman sole grant a reversion and after the before atturnemnt shee mary with a stranger and after the tenant atturne in this case the atturnment comes too late for the mariage is a countermand of it And if a reversion of an estate for life or yeares be granted and the grantor before atturnment doth confirme the estate of the tenant for life or yeares and so change the estate and after the tenant atturne in this case the atturnment comes too late To the making of a good atturnment where it is needfull divers 8. The manner of making an atturnment And what shall be said a good atturnment Or not Co. super Lit. 309 310. 315. Lit. Sect. 551. Plow 344. things are required 1. It must be made by the person that ought to make it 2. It must be made to the person that ought to take it 3. It must be made in time convenient 4. If it be an expresse atturnment the tenant must first have notice of the grant of the reversion rent c. to which he must atturne but otherwise it is of an atturnment in law for there notice in all cases is not necessary 5. And it must be done in that manner the law doth prescribe Notice And for this it is to be knowne that it may be made by words or by deeds and without any writing or by deed or writing and this is the safest way to doe it And any words written or spoken by the tenant that doe import an assent and agreement to the grant of the reversion rent c. in such manner as the same is made after notice given to him of the grant whether it be in the presence or the absence of the grantee of the reversion rent c. will make a good atturnment in deed And therefore if the tenant after knowledge of the grant use these words following or any others to the like effect to the grantee viz. I doe atturne or turne tenant to you according to the grant or I become your tenant or I agree to the grant or I am well content with the grant or God send you joy of it these are good expresse atturnments And if the tenant Lit. Sect. 563. 551. 513. Co. super Lit. 315. 49 E. 3. 15. after knowledge of the grant pay doe or deliver all or any part of the rent or service before or at the time when the same is due to the grantee or give a penny or farthing an oxe or a knife or any such like thing or any other valuable thing in the name of atturnment or in the name of seisin of the rent this is a good expresse atturnment and that atturnment which is made by words and deed or signe both is the best for that doth leave a more deep impression in the minde of the witnesses But if one have a rent charge issuing out of my land and he grant it to a stranger and I give him an oxe to put him in possession of the rent it seemes this is no good atturnment If a man grant his reversion of my living to I S and his Baylife M. 2 Car. in the Court of Wards Co. super Lit. 310. that doth use to gather his rents saith to me that I S hath bought it and I must hereafter pay my rent to him and I tell him I am glad of it this is a good atturnment And that albeit it be in the absence of I S. * Curia B. R. Hil. 11 Car. B. R. Hiltons case And it is not materiall whether the stranger know of the grant or not so the tenant know of it And an atturnment made to the Lords Steward in the Court in the absence of the Lord is a good atturnment For it is sufficient if the tenant have notice that he atturne to the grant in the presence of any whomsoever Tenant for life was the remainder in tail he in the remainder
and the words whereby the same is set down And what words will make an estate for life or years for so long as it endureth as a lease for an hundred or a thousand years So a lease for half a year or a whole year is good So if Plow 422. a lease be made from day to day or from weeke to weeke for four years this is a good lease for four years Et sic de similibus So if Plow 272. Bro. Leases 49. one make a lease for ten years so from ten years to ten years during an hundred years or untill an hundred years are incurred this is a good lease for an hundred yeares So if one make a lease from Dier 24. three years to three years during the life of I S in this case if livery of seisin be not given this is a good lease for sixe years but if livery Livery of seisin be given it is a good lease for the life of I S. And if a lease be made from my death untill Anno Domini 1650 this is a good lease If I say to I S being in my house Here I S I demise to you my Co. 6. 26. Livery of seisin house and land so long as I live this is a good lease for life to him if livery of seisin be made Et sic de similibus If one make me a lease of land until an hundred pound be paid me 21 Ass pl. Livery of seisin make livery of seisin upon it this is a good lease for life determinable upon the payment of the hundred pound But if no livery be made it is no good lease If one make a lease to me for my life and for four ten or twenty Bro Leases 27. 51. Executors yeares after this is a good lease for life first if livery of seisin bee made and then a good lease for years for so many years as are agreed upon afterwards which my executors shall have And if no livery of seisin be made yet it seems it is a good lease for so many years after my death If an Indenture of lease be made between A of the one part and Co. 1. 153. Dier 253. B C and D of the other part and therein A doth demise land to B To have and to hold to him for eighty years if B shall live so long and if he die or alien the premisses within the term then that his estate shall cease and then the lessor doth grant the land to C for so many years of the said term as shall be then to come after the death or alienation of B if he live so long in this case this is a good lease to B for so many years as he shall live of the eighty years but the lease to C after is not good for the terme is ended by the death of B but if the words of the second demise be To have and to hold during the residue of the eighty years and not during the residue of the term in this case the second demise is good to C also If one make me a lease for sixty years if I live so long provided Co. 1. 155. Dier 150. 253. that if I die within the term that my executors shall have it during the residue of the sixty years in this case this is a good lease for the sixty years determinable upon my death but not a good lease for the residue of the sixty years after my death And yet it may amount to a good covenant for that time If A covenant to levy a fine to B and his heirs provided that if he Evans case Trin. 5. Jac. B. R. pay B and his heirs ten pound at the end of thirteen years that then Covenant the fine shall be to the use of A and his heirs and A doth covenant with B by the same deed that B his heirs executors and assignes shall quietly hold the premisses from Michaelmas next for thirteen years and yearly from thenceforth for every if the ten pound bee not paid according to the intent in this case this covenant doth not make a good lease for the thirteen years and it is but a covenant Covenant If one make a lease for a certain number of years and it is further Plow 272. Lit. Sect. agreed that upon some contingent the lessee shall have the see simple and livery of seisin is given hereupon in this case the lease for years doth continue good for the time agreed upon A lease for years cannot by the agreement of the parties be made Co. 2. 24. 10. 87. to the heirs of the lessee nor intailed to the heirs of his body And therefore if a lease be made to I S and his heires or to I S and the heirs male of his body yet the executors of I S and not his heirs Executors shall have it and the executors may sell the term If two agree by word that one of them shall have such a peece of Per Justice Jones at the Assises at Glouc. land for twenty years this is a good and perfect lease that is made by this agreement albeit they doe agree to have a writing made of it afterwards for in this case the writing is but the confirmation of it But if the agreement be that such a writing shall be made or that a lease shall be made of such a thing between them and put in writing so that the agreement hath reference to the writing and implieth an intent not to perfect the agreement till the writing be made in this case the lease is not a perfect lease untill the writing be made Albeit the most usuall and proper making of a Lease is by the Co. super Lit. 5. F. N. B. 270. e. Br. Leases 71 words Demise grant and to ferme let and with an Habendum for life or yeares yet a Lease may be made by other words for whatsoever word will amount to a Grant will amount to a Lease And therefore a Lease may be made by the word Give Betake or the like The word Locavit also is a good word And the use in the Exchequer is to make Leases by the word Committimus which is a good word to make a lease d Bro. Leases 60. And if A doe but grant and covenant with B that B shall enjoy such a peece of land for 20. yeares this is a good lease for twenty yeares e Mic. 9 Ja. B. R. Curia So if A promise to B to suffer him to enjoy such a peece of land for twenty years this is a good lease for twenty yeares f 5 H. 7. 1. So if A license B to enjoy such a peece of land for twenty yeares this is a good lease for twenty yeares And therefore it is the common course if a man make a feoffment in fee or other estate upon condition that if such Agreed by all the
Judges Mic. 20 Jac. et per Just Bridgman And 8 Car. B. R. a thing be or be not done at such a time that the feoffor c. shall reenter to the end that in this case the feoffor c. may have the land and continue in possession untill that time to make a Covenant that he shall hold and take the profits of the land untill that time and this Covenant in this case will make a good lease for that time if the incertainty of the time whereunto care must be had doe not make it void And therefore if A bargaine and sell his land to B on condition to reenter if he pay him an hundred pound and B doth covenant with A that he will not take the profits untill default of payment or that A shall take the profits untill Covenanâ— default of payment in this case howbeit this may be a good Covenant yet it is no good Lease And if the Mortgagee covenant with the Mortgagor that he will not take the profits of the land untill the day of payment of the money in this case albeit the time be certaine yet this is no good Lease but a Covenant onely If one give a Bond for the quiet holding of a Close for three yeares it seemes this is no lease in Law See the opinion of the Parliament for Bonds and Covenants both Stat. 14 Eliz. cap. 11. A Lease for yeares may begin at a day to come as at Michaelmas Co. 5. 1. sup Lit. 48. Plow 156. 197. 3. In respect of the Commencement continuance end of the term or estate Incertaintie next or three or ten yeares after or after the death of the lessor or of I S and it is as good as where it doth begin presently But a lease for life of any thing whatsoever whether it lye in Livery or in Grant if it be in esse before cannot begin at a day to come And therefore if a lease be made Habendum from Michaelmas next or from the day of the making of it or after the death of the lessor or after the death of I S to the lessee for life this lease is not good but in case of a lease of land made thus it is sometimes holpen by the Livery of seisin For which see Livery of Seisin chap. 9. Num. 11. But all leases for yeares whether they begin in presenti or in futuro Co. sup Lit. 45. Co. 1. 155 must be certaine that is they must have a certain beginning and certain ending and so the continuance of the term must be certain otherwise they are not good And yet if the years be certain when the lease is to take effect in interest or possession it is sufficient for untill that time it may depend upon an incertainty viz. upon a possible contingent precedent before it begin in possession or interest or upon a limitation or condition subsequent but in case when it is to be reduced to a certainty upon a contingent precedent the contingent must happen in the lives of the parties And albeit there appear no certainty of years in the lease yet if by reference to a certainty it may bee made certaine it is sufficient Id certum est quod certum reddi potest As for examples if A seised of lands in fee grant to B that when B shall pay to A twenty Co. super Lit. 45. Plow 83. 524. Co. 6. 35. 1. 155. shillings that from thenceforth he shall hold the land for twenty one years and after B doth pay the twenty shillings in this case B shall have a good lease for twenty one years from thenceforth And if A grant to B that if his tenant for life shall die that B shall have the land for ten years this is a good lease And if one make a lease for years after the death of C if C die within ten years this is a good lease if C die within the ten years otherwise not But if A be seised of land in fee and lease it to B for ten years and it is Plow 270. agreed between them that B shall pay to A an hundred pound at the end of the said ten years and that if he doe so and shall pay the said hundred pound and an hundred pound at the end of every ten years that then the said B shall have a perpetuall demise and grant of the premisses from ten years to ten years continually following extra memoriam hominum c. in this case this albeit it be a good lease for the first ten years yet it is void for all the rest for incertainty And if a lease be made to begin from the Nativity of Hil. 16 Jac. in the Ex. chequer Christ and he doth not say which Nativity as next c. it is void for incertainty And yet if a lease for years be made of land in lease Plow 192. 523. for life To have and to hold from the death of the tenant for life this is a good lease So if it be To have and to hold from Michaelmas next after the death of the tenant for life or from Michaelmas next after the determination of the estate of the tenant for life these are good leases So if there be a former lease in being for life Co. 6. 36. or years and another lease for years is made of the land To have and to hold from the end of the former estate by surrender forfeiture or otherwise for twenty years or to have and to hold from the surrender forfeiture or other determination of the former lease if there be any and if there be none for twenty years these and such like leases are good and this commencement is certain enough And if one make a lease to begin after the death of I S and to continue Plow 523. 17 Jac. B. R. Agree untill Michaelmas which shall be in Anno Domini 1650. this is a good lease If a man have a lease of land for an hundred years and he make a Lit. Bro. Sect. 437. Bro. Grant 154. Co. 1. â— 155. Plow 520 521. See Exposition of Deeds lease of this land to another To have to hold to him for 40 years to begin after his death this is a good lease for the whole forty years if there shall be so many of the hundred years to come at the time of the death of the lessor But if the lessor grant the land to another To have and to hold to him for during all the residue of the term of an hundred years that shall be to come at the time of the death of the grantor this is void for incertainty And yet if in this case he grant withall all his estate or all his term or all his interest in the premisses of the deed and then say To have and to hold the land c. to the grantee for all the residue of the terme of an hundred years that shall be
to come at the time of his death by this the whole estate and interest of the grantor into the land doth passe presently by these words in the premisses of the deed And if in this case the lessee for an hundred years make a lease of the land to have and to hold after his death for an hundred years this will bee a good lease for as many of the first hundred years as shall be to come at the time of his death If A make a lease to B for ninety years to begin after the death Per Justice Bridgeman of A on condition to be avoided upon the doing of divers acts by others and afterwards makes another lease of the land Habendum after the determination or redemption of the former lease it seems this is a good lease and certain enough But if a lease be made to A Co. 4. 153. Dier 253. for eighty years if he live so long and if he die within the said term or alien the premisses that then his estate shall cease and then he doth further by the same deed grant and let the premisses for so many years as shall then remain unexpired after the death of A or alienation to B for the residue of the said term of eighty years if he shall live so long in this case the lease to B is void for after the death of A the term is at end but if he say for the residue of the eighty years it is otherwise If A doth make a lease of land to B for so many years as B hath Plow 273. 523. 522. F. N. B. 6. N. 14 H. 8. 11. Co. 6. 35. in the Manor of Dale and B hath then a lease for ten years of the Manor of Dale in this case this is a good lease for ten years But if A make a lease of land to B for so many years as the land B hath in execution shal be in execution this lease is void for incertainty And if a lease be made during the minority of I S or untill I S shall come to the age of twenty one years these are good leases and if I S die before he come to his full age the lease is ended But if a lease be made to another until a child that is now in its mothers belly shal come to the age of twenty one years this lease is not good And if a lease be made for so many years as I S shall name in this case if I S do name a certain number of years in the life time of the party lessor this is a good lease But if a lease be made for so many years as the executor of the lessor or of the lessee shall name this lease is void If a man make a lease for twenty one years if I S live so long or Co. super Liâ— 45. Plow 27. if the coveroure between I S and D S shall so long continue or if I S shall continue to be Parson of Dale so long these and such like leases are good But if A make a lease to B for so many yeares as A and B or either of them shall live not naming any certain number of years this cannot be a good lease for years So if the Parson of Dale make a lease of his glebe for so many years as he shall be Parson there this is not certain neither can it be made so by any means And yet if a Parson shall make a lease from three years to three years so long as he shall be Parson this is a good lease for six years if he continue Parson so long and for the residue void for incertainty So if I make another a lease of land untill he be promoted to a Benefice this is no good lease for years but void for incertainty If I have a rent-charge of twenty pound per annum and let it to Co. 6. 35. 14 H. 8. 10. Plow 274. another untill he have levied an hundred pound this is a good lease for five years But if I have a peece of land of the value of twenty pound per annum and I make a lease of it to another untill he shall levy out of the profits thereof an hundred pound this is no good lease for years but void for incertainty But here note in all these cases of incertain leases made with such Note limitations as aforesaid as untill such a thing be done or so long Plow 27. Co. 6. 35. as such a thing continue c. that if livery of seisin be made upon them they may be good leases for life determinable on these contingents albeit they be no good leases for years And in some speciall cases a lease may be good notwithstanding Co. super Lit. 46. 10 Ed. 3. 26. some incertainty in the continuance of it for a lease may cease for a time and revive again as if tenant in tail make a lease for years reserving twenty shillings and after take a wife and die without issue in this case as to him in reversion the lease is meerly void but if he indow the wife of the tenant in tail of the land as to the wife it is revived again So if tenant in taile make a lease for yeares rendring rent and die without issue his wife enceint with a sonne and he in reversion enter in this case as against him the lease is void but after the sonne is born the lease is good again if it be within the Statute So if tenant in fee simple take a wife and then make a lease for years and dieth the wife is indowed in this case she shall avoid the lease but after her decease the lease shall be in force again If a lease be made for life or years to A and after the lessor doth 4 In respect of another lease then in being of the same thing Plow 433. â— 421. 273. Co. 1. 155. Bro. Leases 73. 10. Plow 521. Co. 4. 58. make a lease for years by word or in writing to B regularly this concurrent lease to B is a good lease at least for so many yeares of the second lease as shall be to come after the first lease is determined according to the agreement as if the first lease to A be for twenty years and the second lease to B be for thirty yeares and both begin at one time in this case the second lease is good for the last ten years And yet the reversion will not passe without the atturnment of the tenant and therefore if any rent be reserved on the first lease the second lessee shall not have it untill the first lessee doth atturn But if the second lease be for the same or for a lesse time as if the first lease be for twenty years and the second lease be for twenty or for ten years to begin at the same time these second leases are for the most part void And yet herein a difference Dier 58. 356
lands tenements or hereditaments manurable Co. 5. 3. or corporall which are necessary to be letten and whereout a rent by law may be issuing and reserved And therefore if a tenant in tail make a lease of such a thing as doth lie in grant as an Advowson Fair Market Franchise or the like out of which a rent cannot bee reserved especially if it be a lease for life this lease is Tallentines case Pasch 3 Jac. B. R. Co. 11. 60. void and that albeit the thing have been anciently and accustomably letten And a grant of a rent-charge therefore out of such lands is void * Trin. 2 Ja. B. R. Adjudg Doddingtons case And if tenant in tail make a lease for three lives of a portion of tithes rendring rent this lease is unquestionably void And so also it seems it is if it be a lease for twenty one years 7. They must be of such lands or tenements which have been most commonly letten to farm or occupied by the Farmors therof by the Co. 6. 37. Dier 271. space of twenty years next before the lease made so as if it have been letten for eleven years at one or severall times within twenty years before the new lease made it is sufficient And albeit the letting have been by copy of Court roll only yet such a letting in fee. for life or years is a sufficient letting and so also is a letting at will by the Common Law But these lettings to farm must be made by such as are seised of an estate of inheritance for if it have been only by Guardian in Chivalry tenant by the curtesie in dower or the like this will not serve to be a letting within the intent of the statute 8. There must be reserved upon such leases yearely during the Co. 5. 8. 6. 6. 37. same leases due and payable to the lessor and his heirs to whom the reversion shall appertain so much yearly farm or rent or more as hath beene most accustomably yeelded or paid for the lands c. within twenty years next before such lease made And therefore if the rent be reserved but for part of the time of the new lease this lease is void And if the tenant in taile have twenty acres of land that have been accustomably letten and hee make a lease of these twenty acres and of one acre more which hath not been accustomably letten reserving the usuall yearly rent and so much more as to exceed the value of the other acre this is not a good lease by the Statute So if the tenant in tail of two farms the one at twenty pound rent the other at ten pound rent and he make a lease of both these farms together at thirty pound rent this is not a good lease within the Statute But if besides the Co. 6. 37 38. Trin. 3 Jac. B. R. Adjudg annuall rent there have beene formerly reserved things not annuall as hariots fines or other profit upon the death of the Farmors or profit out of anothers soil as pasturage for a colt c. Adjudg Tr. 18 Jac. B. R. if upon the new lease the yearly rent be reserved albeit these collaterall reservations be omitted yet these leases are good And so Co. 5. 6. also if there be more rent reserved upon the new lease then the rent that hath been anciently paid the lease is good notwithstanding And yet if tenant in tail of land let a part of it that hath been accustomably letten and reserve the rent pro rata or more then after the rate this is not a good lease And yet if two coparcenours Co. 5. 5. And yet Co. super Lit. 44. b. is contra have twenty acres of land of equall value between them in tail and these have been usually letten and they make partition of these land so as each of them hath ten acres in this case they may make leases of their severall parts reserving the half of the accustomable rent And if upon the old lease the rent were payable at foure Trin. 3. Jac. B. R. Coâ—â—wals case Co. 5. 5. days in the year and by the new lease it is reserved to be paid at one day this is not a good lease But if the rent upon the old lease be payable in gold and the new rent be payable in silver it seems the lease is not good And if a tenant in tail be of a Manor Co. 5. 6. that hath been usually demised for ten pound rent and after a tenancy escheat and then he doth make a lease of the Manor rendring ten pound rent by the year in this case this is a good lease but if the lessor purchase a tenancy then it seems otherwise 9. Such leases must not be without impeachment of wast And therefore if tenant in tail make a lease of his land intailed without impeachment of wast this lease is void And if a lease be Wast Co. 6. 37. Meers case Adjudge made for life the remainder for life c. this is not a good lease for in this case during the remainders the tenant for life cannot be punished for wast done But if such a tenant of land make a lease of it to I S for the lives of three others this is a good lease albeit it may afterwards become an occupancy 10. Such leases must not be against any speciall Act of Parliament Stat. 11 H. 7. 20. Co. 3. 51. And therefore if a woman that is tenant in tail of the gift of her deceased husband or any of his Auncestors whiles she is sole or after with another husband make any such lease warranted by this Statute yet this lease is not good 11. They must have all due ceremonies and circumstances for the perfection of them as other such like leases have as livery of seism and the like where they are needfull And then only when Co. 7. 7. 8. 34. Dier 7. 8. The twomans Lawyer â—73 Plow 435. leases have these conditions and are made according to these provisions are they said to be within this statute of 32 H. 8. and such only as doe binde the tenant in tail himself and the issâ—e in tail for otherwise if it be not warranted by this statute albeit it will bind the tenant in tail himselfe that made it yet it will not binde his issue but as to him it will be void or voidable at the leastâ— for if tenant in tail of land make a lease of it for an hundred yeares without any rent reserved thereupon this lease as to the issue in tail is void but if he make a lease of his land for an hundred years Plow 436 rendring rent and have issue and die in this case the lease is onely Acceptance voidable by the issue at his pleasure and therefore if the issue accept the rent after the death of the tenant in tail by this means the lease is affirmed and become good But
this lease is void as to him in reversion or remainder Cessante statu primitivo cessat derivativus So if a Prebend Parson or Vicar make a lease for yeares not warranted by the Statutes this is void by the death of the lessor and the successor need not make any entry or claime to avoid it So if a tenant for life make a lease for yeares and after die in this case the lease for yeares is void And therefore in all these and such like cases no acceptance of rent after will affirme such leases But Acceptance otherwise it is in cases of leases for yeares made by Bishops albeit they be confirmed by Deane and Chapter and of leases made by Deanes and Chapters or tenants in taile as to their successors and issues when the leases are not warranted by the Statutes And otherwise it is also in the case of leases for life made by these or any of the former lessors for in all cases of leases for life it must be avoided by entry c. and therefore such leases are not void but voidable viz. The leases of Bishops and Deanes after their death by their successors and that by the Statute law and the leases of tenants in taile by their issues after their death and that by the common law And in these and such like cases the acceptance of the Acceptance rent by the issue or successor will make good the lease at least for their time If a lease be made for yeares on condition that upon such a contingent Co. 3. 65. it shall be void in this case so soone as the thing doth happen the lease is void ipso facto without any reentry c. But if a lease for life be made on such a condition in this case the lessor must enter c before the lease will be void CHAP. XV. Of a Feoffment Gift Grant and Lease A Feoffment Grant or Lease in writing may become void by 1. Where and bv what meanes a feoffment gift grant or lease and the estate thereby made being good at first becometh void by matter ex post facto and may be avoided Or not And how rasure interlining and the like as hath been shewed before in Deed supra And a feoffment grant or lease and the estate thereby made may become void by forfeiture or upon a breach of a condition or by a limitation For which See Condition and Vses Also Co. 3. 26 27. 5. 119. Doct. Stud. 119. Perk. Sect. 44. 45. Fitz. Done 4 5. Bro. Done 29. 30. 59. they may become void by disagreement or refusall And this may be either by the disagreement of the party himselfe to whom it is made or by the disagreement of another Of the party himselfe for no estate can be made to a man of any thing in see simple for life or otherwise against his will And therefore by his disagreement or refusall of it the estate it selfe and the deed whereby it is conveyed may become void By the disagreement of another as the husband in case of a feoffment c. made to his wife may by disagreement avoid it And for the first of these the law is thus That all such acts that give estates directly or by way of use are good at first and the thing granted when the deed of grant is delivered to his use shall vest in the grantee before he hath notice of the grant or agree to accept of the thing granted so that if lands be limited to a man by way of use or granted immediately by feoffment gift grant or lease or goods or chattels be given or granted to a man in these cases the things granted shall be said to be in the grantee and the grant good before notice and agreement untill disagreement And before agreement the grantee may waive it and so avoid the estate and the deed also whereby the estate is made And if it be but a lease for yeares that is made he may waive and avoid that by word of mouth in the country as well as a gift of goods or an obligation delivered to his use But if it be an estate of free hold that is made by feoffment it seemes he cannot waive and avoid that but in a Court of Record When the cause of a grant faileth and the thing granted is executory Co. super Lit. 204. Plow 134. 15 E. 4. 4. Dier 76. 9 E. 4. 20. the grant is become void As if one grant an annuity for an acre of land for tithes or for counsell in this case pro is conditionall and therefore if the land be evicted by an elder title or the grantee disturbed in the tithes or he refuse to give counsell the annuity is determined But if a feoffment or lease for life or yeares be made of an acre of land pro una acra c. as in the case before albeit the acre be evicted c. yet the grant in this case of the acre of land is good And if one grant an annuity for counsell if the grantee will not give counsell the grant is not of force So if one grant to make new pales in a place for the old pales if in this case he cannot have the old pales it seemes the grant shall not bind him to make new pales So if one grant a rent for a way stop the way and the rent shall be stopped If one that hath a lease for life or yeares of a Manor to which an advowson is appendant grant the next avoidance that shall happen Co. 8. 144 145. during the lease or grant a rent out of the Manor and then surrender the Manor so that his estate is gone in this case notwithstanding the grant of the next avoidance and of the rent doth continue good and the grantee shall enjoy it according to the grant as long as the estate that is surrendred should have had continuance If the heire of the Kings tenant enter and make a lease before livery sued and after an intrusion is found against him by this it seems the lease is avoided So if tenant in taile make a lease warranted by the Statute and after dieth without issue by this the lease H. 7. is determined If a tenant in taile make a feoffment to his heire within age and Co. super Lit. 349. he after he is of full age make a lease for yeares of the land and after the tenant in taile dieth and the heire is remitted the lease in this case is not avoided If an annuity be granted to one untill he be advanced to a benefice Plow 272. 15 H. 7. 1. by the grantor and the grantor die and the heire or executor of the grant or tender a benefice it seemes this will not determine the grant If A be lessee for yeares of an advowson and grant the next avoidance Co. 8. 145 7. 39. to B if it shall happen to become void during the terme and A doth
tenant in taile make a lease for yeares rendring twenty shillings rent and after taketh a wife and dieth without issue and he in reversion or remainder endoweth his wife as he may in this case the lease as against the woman is revived albeit it be void as to him in reversion or remainder So if tenant in taile make a lease for yeares and die without issue his wife enceint with a sonne and he in reversion enter and after the sonne being heire to the entaile is borne in this case the lease which was before avoided by him in reversion if it be such a lease as is warranted by the Statute is good against the issue in taile and therefore is revived againe So if the King make a gift in taile to W to hold by Knights service and W doth make a lease to A for thirty yeares reserving rent and then W dieth his sonne and heire of full age in this case as to the King this lease is void but after livery sued out the lessee may enter againe and if the issue accept the rent the lease is affirmed So if tenant in taile make a lease not warranted by the Statute and die and his heire is in ward in this case the Gardian in the behalfe of the heire may avoid the lease during the wardship but afterwards the heire may affirme it againe if he accept of the rent So if tenant in see simple take a wife and then make a lease for years and dieth and the wife is endowed she shall avoid the lease for her estate but after her death the lease will be in force againe But if the Patron grant the next avoidance and after the Parson Patron and Ordinary before the Statutes had made a lease of the Glebe for years and after the Parson had died and the grantee of the next avoidance had presented a Clerke to the Church who had been admitted instituted and inducted and had died within the terme and the Patron had presented a new Clerke to the Church who had been admitted instituted and inducted in this case the lease had not revived againe No more then if a feme covert levy a fine alone and the husband doth enter and avoid the fine the estate shall revive against the wife after his death for it is avoided as to her also as well as to the husband by his entry See more in Deed supra cap. 4. Numb 7. Where a feoffment gift grant or lease is voidable in some cases it may be avoided by the party himselfe that made it and not 5. Who may avoid a feoffment gift grant or lease that is voidable Or not And how Co. super Lit. 45. Co. 7. 8. Dier 337. 239. by others albeit they be privies as heires executors or administrators and in some cases it is voidable by others and not by the party himselfe and in some cases it is voidable by the party himselfe and by others And in some cases it is avoidable only at some times and in some cases it is avoidable at all times as for examples an Infant if he grant by fine must avoid it during his minority if he live to be of full age otherwise he himselfe or any other shall never Infant avoid it But if he grant by deed this may be avoided at any time by himselfe his heires executors or administrators or his Gardian in his right as the case is But a Lord by escheate cannot avoid a voidable estate made by his tenant being an Infant And if a woman Woman covert covert doe any such act by deed it may be avoided by her husband during the coverture or her selfe after the coverture or her heires c. that are privies after her death And if a man de non sane De nonsane memorie Co. super Lit. 7. 8. memorie doe any such act it may not be avoided by himselfe that is the party denying it but it may be avoided by his heires c. that are privies And if tenant in taile make a voidable lease not warranted by the Statute he may not avoid it himselfe but his issue Tenant in tail may And if he be in ward by reason of a tenure in Capite or Knight service the gardian of the issue during his time may avoid it And if a Corporation spirituall sole or aggregate make leases not warranted Corporations by the Statutes they may not avoid it themselves but their successors after their death translation or other remotion may avoid it or if a Bishop make such a voidable lease the King when the Bishoprick doth come into his hands may avoid it And now we passe to another sort of Assurances that are for some speciall purposes and in some speciall cases only wherein we shall first begin with an Exchange CHAP. XVI Of an Exchange AN Exchange is the mutuall grant of equall interests the one in 1. Exchange or Eschange Quid. exchange for the other Or it is where a man is seised or possessed Terms of the law tit Exchange Finches ley 27. of land in fee simple fee taile for life or yeares or is possessed of goods and another is seised or possessed of other lands or possessed of other goods in the like manner and they doe exchange their lands or goods the one for the other And in this there is a doble grant for each of them doth grant that which is his to the other This manner of conveyance which heretofore was very frequent is sometimes made by word without any writing and sometimes * Co. super Lit. 50. Perk. Sect. 253. it is made by deed or in writing and which way soever it be made it must be made by this word Exchange which is a word so appropriated to this thing as the word Frankmariage is to a gift in Frankmariage neither of which can be made or described by any circumlocution The fruit and effect of an exchange is that it doth give the interest Co. 4. 121. 15 E. 4. 3. 9 E. 4. 21. Bro. Eschange in toto Fitz. Eschange in toto and after the property of the things exchanged to either party 2. The effect and fruit of it according to the agreement And if the exchange be of lands or tenements of any estate of Inheritance or freehold whether it be by word or deed it hath a condition and a warranty in law incident and annexed to it as a thing made by the word Exchange and tacite implied in every grant of exchange A condition to give a reentry upon all the land given in exchange if he be put out of all or part Condition of the land taken in exchange and a warranty to enable him to vouch and to recover over in value so much of his own land againe Warranty given in exchange as shall be recovered from him of the land taken in exchange if he be sued for it So that upon every exchange either party
or profit out of land confirme to Lit. Sect. 535. 536. 537. the terretenant his estate in these cases notwithstanding this confirmation the signiory rent common c. doe continue and this shall not enure to extinguish it If the disseisee and a stranger disseise the heire of the disseisor Co. super Lit. 298. and the disseisee confirme the estate of his companion this shall not enure to extinguish the suspended right of the disseisee but when the heire of the disseisor shall reenter it shall be revived And if the grantee of a rent charge and a stranger disseise the tenant of the land and the grantee confirme the estate of his companionâ— this shall not enure to the rent suspended to extinguish it but after the reentry of the tenant the rent shall be revived If a man hold his land of me by Knights service rent suit of court Co. super Lit. 305. c. and I confirme his estate to hold of me by Knights service only for all manner of services and demands in this case albeit this doe abridge the service yet it shall not be construed to take away wardship reliefe aid to mary my daughter and make my sonne Knight and the like If I have an estate in land for my life and he in the reversion doth See before confirme the estate to me and my wife for the terme of our lives this shall enure only as a confirmation of my estate and not so as to give any estate to my wife But if I have a lease for life or yeares in right of my wife and he in the reversion doe confirme the estate to me and my wife To have and to hold to us for our lives this shall enure not only to confirme the estate but also to create an estate to me after my wives death And in the case of a lease for yeares it maketh our estate joint but in the case of a lease for life I shall take by way of enlargement of estate for my life after my wives death And if in this case the confirmation be to me and my wife To have and to hold the land to us two and our heires this shall enure to us in fee simple as Jointenants If land be let to husband Co. super Lit. 299. and wife To have and to hold the one moity to the husband for his life and the other moity to the wife for her life and the lessor confirme to them both their estate in the land To have and to hold to them and their heires in this case as to the one moity it doth enure only to the husband and his heires but as to the other moity they shall be Jointenants And yet if such a lease for life be made to two men by severall moities and the lessor confirme their estates in the land To have and to hold to them and their heires by this they are tenants in common of the inheritance If the disseisee confirme the estate of the disseisor To have and to Lit. Sect. 419. hold to him and his heires of his body engendred or To have and to hold to him for terme of his life this shall enure to him as a fee simple and shall confirme his estate for ever If my disseisor make a lease for life the remainder over in fee and Co. super Lit. 298. 297. I confirme the estate of the tenant for life this shall not enure to nor availe him in remainder And if the disseisor make a gift in tail the remainder to the right heires of the tenant in taile and the disseisee confirme the estate of the tenant in taile this shall not extend to the fee simple no more then if the disseisor make a gift in taile the remainder for life the remainder to the right heires of the tenant in taile and the disseisee confirme the estate of the tenant in taile for this shall extend only to the estate taile and not to the remainder for life or in fee. But if the disseisee in the first case confirme the estate of him in the remainder this shall enure to and availe the tenant for life And so if a disseisor make a lease for life and keepe the reversion and after the disseisee doth confirme to the disseisor this shall enure to the tenant for life And so if a disseisor make a lease for life to A and B and the disseisee confirme the estate of A this shall enure to B and make his estate good also in the other moity And so if there be two disseisors and the disseisee confirme the estate of one of them without saying more this shall enure to them both But if the confirmation be of the land To have and to hold the land to one in this case it may enure to him alone So if a disseisor enfeoffe A and B and the heires of B and the disseisee confirme the estate of B albeit it be but for his life yet this shall enure to both and to the whole fee simple If a lease be made for life to A the remainder to B for life and the lessor confirme their estates in the land To have and to hold to Co. super Lit. 299. them and their heires this shall enure as to the one moity to A in fee after the death of B and as to the other moity in fee to B after the death of A. If lands be given to two men and the heires of their two bodies Co. Idem begotten and the donor doth confirme their estates in the land To have and to hold the land to them two and their heires it seems this shall enure to them as a joint estate for their lives and after for severall Inheritances If the lessee for life or the disseisor doth make an absolute lease Lit. Sect. 516. 521. 519 520. 541. Co. 579. for yeares and he in the reversion or the disseisee doth confirme the estate of the lessee for yeares this makes the lease good for all the time So if the disseisor makes a lease for life and the disseisee doth confirme the estate of the lessee for life this makes the estate good for the life And if he in reversion confirme the estate of the termor but one houre this doth make it good for all the terme And if an estate for life or in fee be confirmed but for one houre it is a good confirmation for all the estate And if the disseisee confirme the estate of the disseisor To have and to hold for one houre yeare or for life or in taile this is a good confirmation for ever and makes his estate unavoidable And yet if the disseisee confirme the land Habendum the land for life or in taile c. contra If a voidable lease be made for forty yeares and the lessor confirme â—ier 52. 339 Co. 5. 81. the terme for twenty yeares this is a good confirmation of the whole terme
release is a bar to the writ of Error So if a judgment be given upon a false verdict in a reall action a release of all actions reall is a bar in an attaint By a release of all actions personall without more words are Of actions personall Bro. Release 47. Co. super Lit. 285. 9 H. 6. 57. Lit. Sect. 502. discharged all personall actions then depending and all causes of personall actions wherein a personall thing only is to be recovered and therefore hereby are discharged all causes of suing out of actions of debt trespasse detinue or the like Also all mixt actions as actions of wast Quare Impedit an assise of novel disseisin writ of annuity appeal of maihme and the like And if debt c. or damages be recovered in a personall action Co. super Lit. 289. by false verdict and the defendant bringeth awrit of attaint or if a writ of Audita Querela be brought by the defendant in the former action to discharge him of execution by this release the defendant in both cases is barred of his suit Also when by a writ of Error the plaintiffe shall recover or Co. super Lit. 288. Lit. Sect. 503. be restored to any personall thing only as debt damage or the like as if the plaintiffe in a personall action recover any debt c. or damages and be outlawed after judgement in this case in a writ of Error brought by the defendant upon the principall judgement this release will bar him But where by a writ of Error the plaintiffe shall not be restored to any personall or reall thing this release is no bar as if a man be outlawed in an action personall by processe upon the originall and bring a writ of Error and then release this is no barre to him If a man by wrong take or find my goods or they be delivered Lit. Sect. 497 498. 500. to him and I release to him all actions personall notwithstanding this release I may in this case take my goods again albeit I be barred of my action by this release Neither is this release a bar in an appeal of robbery or death Neither will it bar in any case where a release of all actions will not bar Neither is it any bar to an action of debt brought for an Co. super Lit. 292. 285 annuity granted for a term of years for any arrearages that shall grow due after the release Nor for any rent of sum of nomine pene when the release is before the same day or nomine pene happen Neither is it a bar in such reall actions wherein damages are recoverable only by the statute and not by the common law as in a writ of dower entry sur disseisin in le per Mordancester Aile c. By a release of all debts without more words are discharged Of debts Co. super Lit. 76. 291. Fitz. Audita Querela 3. and released all debts then owing from the relessee to the relessor upon especialties or otherwise all debts due also upon statutes And therefore if the conusor himself or his land be in execution for the debt and he hath such a release he must be discharged and so he cannot be upon a release of all actions By a release of all duties without more words is a relessor Of duties Co. 8. 153. super Lit. 291. barred and the relessee discharged of all actions judgements and executions also of all obligations And if the body of a man be in execution and the plaintiffe make him such a release hereby he shall be discharged of execution because the duty it selfe is discharged And if there be rent or services behind to the Lord from his tenant and the Lord make such a release to his tenant by this it seems the arrearages are released This word is of somewhat a more large extent then actions Co. 8. 154. 157. 5. 70. super Lit. 291. Of Suits for by a release of all suits without more words is released and discharged as much as by a release of all actions And hereby also are discharged al executions in the case of a subject But in the case of Prerogative the King it doth not release executions And this doth not release a covenant before it be broken By a release of all quarrels without more words all actions Co. super Lit. 292. 8. 157. 5. 70. Of Debates quarrells controversies reall and personall and all causes of such actions are released and discharged So likewise by the release of all controversies or by the release of all debates But this will not bar the relessor of any causes of suit that shall arise after and was not at the time of the release as the breach of a covenant which shal be after albeit the covenant be before is not discharged hereby By a release of all covenants without more words all covenants Of Covenants Co. 1. 112. 10. 51. super Lit. 292. then broken and all that shall be after broken that were then made and in being are discharged Qui destruit medium destruit finem And therefore if a lessee doe covenant to leave a house leased Adjudge Hil 4 Jac. B. R. Hancocks case to him at the end of the terme as it was at the beginning of the terme and the lessor before the end of the terme release to the lessee all covenants this doth discharge the covenant But this release doth discharge nothing else but covenants By a release of all Statutes from the conusee to the terre-tenant Of Statutes Co. 10. 47. without more words the Statute is discharged And yet if he release all his right in the land of the conusor this will not discharge the land of execution By a release of all errors and writs of error all errors and Co. 2. 16 Lit. Sect. 503. Of Errors writs of error and that before they be brought are extinct and discharged And if a man be outlawed in a personall action by processe upon originall and make such a release this will barre him By a release of all warranties or covenants reall all warranties Lit. Sect. 148. Of Warranties then made and being are for ever discharged By a release of all legacies without more words a man doth Co. 10. 51. Dier 56. Co. super Lit. 76. Of Legacies barre himselfe of all the legacies given him in presenti or futuro so that if he be to have a legacy at 24. yeares old and at 21. yeares of age he release to the executor al legacies or this legacy in particular this is a barre to him of this legacy for ever And yet a release of all demands in this case is no discharge of this legacy By a release of rent the rent is extinct and discharged whether Co. super Lit. 292. Of Rent the day of paiment be come or not But a release of all actions will not
discharge a rent before the day of paiment come By a release of all promises or Assumpsits without more Of promises Adjud Hil. 16 Jac. B. R. Briscoe vers Heires Co. 10. 51. words a man may barre himselfe of a contingent or future thing that by other words could not be released as if a man promise to me that if I S doe not pay me one hundred pound the tenth of March next that he will pay it me the twentieth of that moneth and before the time I release to him all actions and demands this will not discharge the promise But if I release to him all promises this will barre mee Et sic de similibus By a release of all Judgements without more words is he Lit. Sect. 507. Co 8. 151. super Lit. 290. that maketh it barred of the effect of any Judgement he hath Of Judgements Of Executions against the relessee for if execution be not taken out he is now barred of it And if the relessee or his land c. be in execution he and it shall be discharged thereof by Audita Querela And by a release of all executions without more words a man is barred of taking or having out of any execution upon any Judgement either before Scire facias or after But if after execution be made by Capias ad Stat. Elegit or fieri facias the Audita Querela plaintife release to the defendant all executions he cannot plead such a release but he must have an Audita Querela and that he may have to discharge him of execution By a release of all appeales are discharged all appeales of Co. super Lit. 287 288. felony of death of robbery of rape of burning of larceny Of Appeales depending and all causes not yet moved also By this release of all advantages it seems actions of debt upon Of Advantages account are discharged Co. 8. 150. By a release of all conspiracies all conspiracies past are discharged Kelw 113. Of Conspiracies and such also as are only begun and shall be prosecuted and perfected after the release are likewise hereby discharged By a release of all forgeries before publication the forgery is Of Forgeries Co. 10. 48. discharged but not the publication and therefore the relessor may take his remedy for that notwithstanding A release of all demands is the best release of all and this Of Demands or Clâ—imâ—s Co. super Lit. 291. Co. 8. 54. Lit. Sect. 501 509 510. word is the most effectuall word of all and doth in deed include and comprehend within it most of all the releases before By a release therefore of all demands without more words are released all rights and titles to land warranties conditions annexed to estates before they be broken or performed and after they be broken Also by this release are released and discharged all Statutes Obligations Contracts Recognisances Covenants Rents Commons and the like Also all manner of actions reall and personall Appeales Debts duties Also all manner of Judgements Executions Also all Annuities and Arrearages of Annuities and Rents And therefore if a man have a title of entry by force of a condition c. or a right of entry into any lands by such a release the right and title is gone And if a man have a rent-service rent-charge estovers or other profit to be taken out of the land by such a release to the tenant of the land it is discharged and extinct And therefore if a termor for yeares grant the land by indenture to A rendring rent and at the end of the first yeare Adjudg B. R. pasc 17 Jac. Wottons case he release to the grantee all demands the rent is hereby extinct during all the time And a release of all claimes it seems is much of the same nature But by a release of all demands or of all claimes is not released Co. 5. 70. any such thing as whereof a release cannot be made as a meere possibility or the like Neither will this release discharge a covenant or promise that Hil. 4 Jac. B. R. Hancocks case adjudge is future and contingent before it be in being Nor a covenant before it is broken and therefore if the lessee of a house covenant to leave it as well in the end of his terme as it was in the beginning of his terme and before the end of the terme the lessor release to the lessee all demands this is no barre to an action brought for a breach of the covenant afterwards And if a man in consideration of a summe of money given to Hil. 6 Jac. B. R. Belcher Hudsons case him by a woman sole assume to her that if shee mary one M that he will pay to her after the death of M one hundred pound by the yeare if shee survive him and shee mary him and the husband release all demands and then die this is no barre to the duty So if one promise a woman that if shee will mary him that he will leave her worth one hundred pound if shee doe survive him and before the mariage shee release to him all actions and demands this doth not discharge the promise And note that all these words are of the same force when they are joined with other words as when they are alone Note If two tenants in common of land grant a rent-charge of Co. super Lit. 267. forty shillings out of it to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of law is severall If one have severall causes of action against two and make a joint release to them this shall be taken to be a release of all 19 H. 6. 4. joint and severall causes of action So if an executor have some cause of action for himselfe and Bro. Release 31. 29. some for his testator and he release all Actions indefinitly this release doth discharge both sorts of actions If the tenancy be given to the Lord and a stranger and to the heires of the stranger and the Lord release to his companion Co. super Lit. 280. all his right in the land this shall enure not only to passe his estate in the tenancy but also to extinguish his right in the Seigniory If there be Lord and tenant of two acres and the Lord release all his right in one of them to the tenant hereby the Perk. Sect. 71. Bro. Release 85. 9 E. 3. services are extinct for both So if one have a rent charge out of twenty acres and release all his right in one acre hereby all the rent is extinct And yet if A lease white acre to B for life rendring rent and afterwards doth release part of the rent this is good only for such part If I be seised of land in fee and I make a lease of it to one for life and after I
certaine 14 H. 8. time surrender such land of his for an Annuity of so much as they shall agree upon and they agree upon 10l per annum in this case the Obligor is not bound to make the surrender untill the Annuity be made and tendred unto him If the condition bee to deliver to the Obligee an obligation Hil. 37. Eli. Co. B. Greeinghams case adiudg wherein the Obligee is bound c. or to seale and deliver to the Obligee such a Release of it as shall be devised by the counsell of the Obligee before Michaelmas and the counsell doe not advise any Release before Michaelmas in this case the Obligor is discharged of the obligation for the Obligee is to doe the first act If A be bound to B in an obligation with condition that A and Trin. 4. Iac. B. R. his wife shall levie a fine of land to C and D and their heires and at their costs and charges this shall be construed to be at the costs of the Obligor and not at the costs of the Conusees but if the word and be omitted perhaps it may be of otherwise If the condition be thus That if the wife die before Michaelmas Dyer 17. without issue of her body then living that the obligation shall bee void in this case then living shall relate ad proximum antecedens and not to the death of the wise and therefore if she hath issue and die and after before Michaelmas the issue dyeth also the obligation is void If the condition be that if the Obligor shall waste the goods of the Obligee his master and this waste within three Moneths after Golds case M. 13. Iâ— due proofe of it either by confession or otherwise bee notified to the Obligor that the Obligor shall satisfie the Obligee for it and the Obligor doe confesse the waste under his hand and seale in this case it seemes this proofe though it be extrajudiciall is sufficient When the condition of an obligation is to doe two things by a Coo. 5 22 super Lit. 207. Dyer 262. 15 H. 2. 4. H. 7. 4. day and at the time of making of the obligation both of them are Conditions Impossible possible but after and before the time when the same is to be done one of the things is become impossible by the act of God or by the sole act and laches of the Obligee himselfe in this case the Obligor is not bound to doe the other thing that is possible but is discharged of the whole obligation But if at the time of the making of the obligation one of the things is and the other of the things is not possible to be done he must perform that which is possible And if in the first case one of the things become impossible afterwards by the act of the Obligor or a stranger the Obligor must see that he doe the other thing at his perill And when the condition of an obligation is to doe one single thing which afterwards before the time when it is to bee done doth become impossible to be done in all or in part the obligation is wholy discharged and yet if it bee possible to be done in any part it shall be performed as neare to the condition as may be If the condition be to doe one of two things as to make a feoffment to me or pay me 20l. in this case if the obligor doe either 21 Ed. 3. 29 of them it is sufficient But if the condition be in the copulative as to enfeoffe me and pay me 20l. in this case the doing of one of them will not suffice but he must doe both If the condition be to pay to A B and C 30 l. a pece within a week after they come to 18 years of age or within 40 dayes after Per. Iustice Dodridge M. 2. Car. B. R. their dayes of marriage after notice given thereof which shall first happen in this case this notice must goe to both the parties so that notice must be given when they are 18 years of age otherwise and untill notice given it seemes the obligor is not bound to pay the money See more in Condition Numb 8. and Covenant Numb 6. The matter of a condition of an obligation is sometimes affirmative 8. When the Condition of an Obligation shall be said to be performed and the Obligation saved or not and compulsory and doth consist of something to be done and sometimes it is negative and restrictive and doth consist of something not to be done the not doing in the first case and doing in the latter case causeth the obligation to bee forfeit and the doing in the first case and not doing in the latter saveth the obligation If one be bound in an obligation to me with condition to enfeoffe To make a feoffment Coo. super Lit. 207. plo â— 7â— 17 Ed. 4. 3. me of land and the obligoâ— doe first make a Lease to me of it and afterwards he doth make a Release of it to me and my heires this is a good performance of the condition If a condition be to make me a feoffment of land and he tender me a feoffment and I refuse it by this the condition is performed So Tender and Refusall Perk. Sect. 784. Fitz. Barre 82. Perk. Sect. 758. 15 Ed. 4. 5. if the condition be to make a feoffment to my use and when it is is made I refuse it this is a good performance of the condition But if a man bind himselfe in an obligation to me with condition to make feoffment to a stranger and hee tender the feoffment to the stranger and he doth refuse it this is no good performance of the condition but the obligation is forfeit If the condition be to enfeoffe me and my wife and he tender it to me and I refuse it it seemes this is a good performance If one bind himselfe in an obligation to me with condition to 3 H. 7. 4. 4 H. 7. 4. Perk. Sect. 757. make me a feoffment of the Mannor of Dale by a day and he before the day grant a rent-charge out of the same Mannor to a stranger and afterwards and before the day also he doth make me a feoffment of the land this is a good performance of the condition and the grant of the rent no breach thereof But if the obligor sell away part of the Mannor before or make a feoffment to me but of a moity or a third part of the Mannor this is no good performance of the condition And if in this case the obligor before the day take a wife and before the day make his feoffment according to the condition but the marriage doth continue untill after the day in this case it seemes the condition is broken If the condition be that the obligor shall enfeoffe me of the Mannor Acceptance Perk. Sect. 749. 759. Dyer 1. Perk. Sect. 751. 9.
appeare plainly to be the expresse Will of the Testator to revoke the former or unlesse the Testator himselfe did dictate the latter or in case the latter be in favour of the children of the Testator or others who are to have the Administration of his goods if he die intestate 2. When the Testator doth make two Testaments a former and a latter both being written and afterwards lying sick upon his death bed they are both presented unto him and he is desired to deliver to one of the standers by which of them he will have to stand for his last Will and he deliver the former 3. When the latter doth agree in all points with the former for then both of them are as one in divers writings 4. When in the latter Testament there is no Executor named for then it is but a Codicill or addition to the former 5. When the latter is made upon some sudden discontent against the Executor of the former Testament and afterwards he and the Executor are reconciled againe in these and such like cases the latter Testament is no Revocation of the former * Lit. Broo. 55. If the husband licence his wife to make a Testament and after her death he forbid the Probate this is a Countermaund of of the Testament But note here that Revocations in generall are not favoured in Law and therefore he that will a void a former Will by Revocation must see he prove it well 2. * Swinb 〈◊〉 7. part sect â—6 A good Secondly by cancelling oâ— it Testament may become void by cancelling or other destruction of it as where the Testator himself or some other by his commandement doth cut or teare it in pâ—eces deface it or cast it into the fire by this meanes the Testament is made void except it be in case where the Testator doth it unadvisedly or it be done by some other without his consent or by some casualty or when he doth willingly pull away the Seales and then he doth afterwards sâ—ale it againe or where the whole Testament is not cancelled or defaced but some or the chiefe part thereof as the naming of the Executor or the like for it is good still for the residue or where there be severall papers or writings of one ten or each of them containing the whole Testament the cancelling or defacing of some of them doth not hurt the Testament unlesse it can be proved that the Testators mind were to avoid it all or where the Testament is lost in the life time of the Testator or after for in this case so much as can be proved by Thirdly by â—â—teration of the estate oâ— the Testaâ—â—â—â— Witnesses is still in force 〈◊〉 A good Testament may become void by Swinb part 〈◊〉 Sect. 17. alteration of the estate of the Testator as when a man after the time of making the Testament and before his death is convicted or condemned of some great crime for the which the Law depriveth him of the making of a Testament as Treason Felony or the like And yet if the crime be pardoned and purged before his death the Testament may be good enough And if a man of sane and perfect â—â—o 4. 62. memory make his Testament and after become inopsmentis as â—very man for the most part is before his death this doth not hurt the Testament 4. A good Testament may become void by an intention Fourthly by intention to alâ—â—â— it only to aâ—ter it when the Testator is hindered in his intention Swinb parâ— 7. sect 18. that it cannot take effect And therefore if when the Testator intendeth to alter his Testament or to make a new one he be by feare or fraud forbidden or letten that he dare not or cannot alter it or the Notary or Witnesses dare not or may not be suffered to come to him as when a wife or some other that is to have benefit by the former Will under pretence that she hath a charge from the Physitian that none shall come at him or under pretence that he is asleep or the like will not suffer any body to come at him or when the Notary and Witnesses are all present and they make such a noise or quarrelling that they hinder the effect of hiâ— intent or when the Testator is kept from doing it by importunate requests and flattering perswasions in all these cases and by these meanes the former Testament may become void But if it appear the Testator hath no purpose to alter the Testament when hee is let as as aforesaid the feare is a vaine feare the Testator is prohibited at another time and not the time when he doth intend to alter the Testament but he hath sundry opportunities after that time to doe it and doth it not or he is drawn only by the faire speeches of a wife or friend or by the weeping or other trouble arising from the griefe of the Legatary or Executor for the Testators sicknesse only he is disturbed in these cases perhaps it may not be void And where it is void by the prohibition of a Legatary only it is void for so much as doth concern him only and not for the rest of the Testament 5. A good Testament may become void by making Swinb paâ—â— 7. â—ect 11. Perk. Sect. 479. another of the same date for if two Testaments be found after the Fifthly by making another of the sâ—me date death of the Testator and it cannot be discerned or proved which was made former or latter the one of them doth overthrow the other and both of them are become void except they be both to the same purpose or one of them be made in favour to wife and children c. and the other to strangers And yet in the first case also the Testator by declaration of his minde which of them he will have to take effect may make either of them good 6. A good Sixthly by the declaration of the Testator Testament may be made void by the declaration of the Testators minde as if a man have two Testaments lying by him the one made after the other and they are both shewed or delivered to the Testator when he lyeth sick and hee by word or signe declare that he will have the former to stand this declaration doth revoke the latter and affirme the former And where a man would revoke a Will for any of these causes he must presently after the death of the Testator put in a Caveâ—t or exception in that Court where the Will is to be proved and thereupon proceed to question it or by a prohibition in some cases he may stay the Probate in the Spirituall Court See more infra at Numb 12. If a woman covert without the leave of her husband make a 6. Where a Testament void voidable in his Inception may become good by some matter or accident ex post â—acto And where not Perk. Sect. 501. Coo. 〈◊〉 99.
2. 55. Testament of her husbands goods and the husband doth after her death connive at the Probate and deliver the goods accordingly hereby the Testament of the wife is become good but if an Infant or mad man make a Testament in the time of his Infancy or madnesse and after the Infant or mad man become of full age or sober before his death it seemes these Testaments are void And yet if the Infant at his full age or the mad man when he is sober make a publication of this Testament it may perhaps bee good If a man make a former and a latter Will and by this latter the former is revoked and after the Testator declare himself that the Perk Sect. 479. Coo. 〈◊〉 61. Plow â—44 former shall stand by this the former that was void before is now become good againâ— And yet if a man make a Will that is void and it be proved after his death this Probate will not make it good but it doth remaine void as it was before If a Feme sole make a Will and then take a husband whereby the Will is countermanded and so become void if her husband die so that she become sole againe this accident will not make the Will good againe but it doth remaine void still but perhaps by a new publication after shee doth become sole it may become good againe See more infra at Numb 11. To the making of a good and sufficient Devise these things are 7. What shall be said a good and sufficient Devise or Legacy or not â—ee before at Numb 4. requsiite 1. That there be a devisor and that he be a person able to devise and that both in respect of the condition of his owne person and of the thing whereof the Devise is made 2. That there be a Devisee and that hee bee a Person capable and able to receive the thing devised either at the time when the Devise is made or at least when the Devise is to take effect 3. That the Devisor have at the time of the devise made animum tostandi i. a mind to make a devise 4. That the Will of the Devisor be free and not drawn or coacted by fraud slattery feare or the like 5. That the Devise be made in due manner and forme 6. That the thing devised be a thing devisable 7. That it be devised First in respect of matter touching the Devisor and who mâ—y be a Devâ—â—â—r upon lawfull termes and conditions 8. That there be words sufficient Perk. Sect. 40â— See before at Numb 4. and after at Numb 17. to make his mind known 9. That it bee proved after the death of the Devisor 10. And if it be a Devise of land it is further required that the Devisor be solely seised of the land and not jointly seised with another and that he be seised of an eâ—â—ate in â—eesâ—mple and that the Devise be in writing And for the first of these it is to be known that whosoever may make a Testament may make a devise of the same thing of which he may make a Testament Et sic è converso And whosoever is disabled to make a Tâ—stament is disabled to devise by such a Testament And therefore Inâ—ants may not devise their lands untill they be 21 yeares of age nor their goods and chattels untill they be 14 yeares of age or as some say untill they be 18 yeaâ—es of age a Coo. super Litt. 110. 4. 61. â—â—oo Devise 32. Women that have husbands cannot devise their lands to their own husbands or others either by or without their husbands consent albeit there be a custom to enable them thereunto but all such devises are void b Perk. Sect 496. And Spirituall persons as Archbishops Bishops Deanes Archdeacons Secondly in respect of the matter touching the Devisee And who may be a Devisee And by what name Prebends Persons Vicars or any member of a Corporation may not devise the lands or goods they have in the right of their churches and Corporations And for the second thing this is to bee known 1. that regularly whosoever may be a Grantee may be a Perk. Sect. 50â— 510. Swinb 212. see infra aâ— Numb 18 Devisee or Legaâ—ee And therefore a Devise made to any person or persons male or female children or strangers bondmen or freemen Lay men or clerks debtors or creditors Infants or men of full age women sole or covert Colledges Universities Corporations or the like are good But it is said that if any Legacy be given to an Heretick Apostate Traitor Felon Excommunicate person Out-lawed person Bastard unlawfull Colledge Libelier Sodomite Usurer Recusant convict it is void by the Civill Law except it be in some speciall cases And yet it seemes a Devise of lands to any such person is good within the Statute of Wills c Dâ—er 303. 304. B. R. Curia Mic. 13. 〈◊〉 A Devise to an Infant in the womb of its mother at the time of the death of the Testator is void d New Termes of the Law â—it Devise See infra Numb 11. And yet if a man devise to such an Infant and hee happen to bee borne before the death of the Testator it seemes in this case the Devise is good for it is a rule e 9. Ia. B. R. That the Devisee must be capable of the thing devised at the time of the death of the Devisor if it be then to take effect in possession or if it be a remainder he must be capable of it at the time when the remainder shall happen or otherwise the Devise is void f Litt. sect 168. Litt. Broo. sect 55. And a man may devise his lands goods or chattels to his own wife as well as to any other 2. But he that may be thus a Devisee and is capable of a thing devised must be certainly named and described â—ncertainty for if a Devise be to a person altogether incertaine the Devise is altogether void g M. 19. Iâ— Curia B. R. Crumpe versus Bodie And therefore if I give my land to my best friend or to my best friends these are void Devises So if I give my land to a Vicar and say not to what Vicar this Devise is void and no averment will help in this case h Coo. 6. 68. Swinb 293. 29â— 295. 296. If one have two Averment sonnes of one name called I S and he devise to his sonne I S without any distinction it seems this Devise is void for uncertainty but in this case perhaps an averment which son is meant may help So if one give to I S 20l. and there be two or more of that name this Devise is void except it may be proved by some thing which of them he meant So if one say in his Testament I give to one of the world 10l â—his Devise is void for incertainty So if one give him 10l whose name is written in a
name But if it be such a cause of action as is altogether uncertain as where a man may have an action against another for taking away his goods or to compell him to make an account or the like this is such a cause of action as is not deviseable And yet possibilities and incertainties are in divers cases devisable Perk. Sect. 527. Litt. B100 Sect. 437. Dyer 272. Plow 520. And therefore if one have money to be paid him on a Mortgage he may devise this money when it comes as if I enâ—eosse a stranger of land upon condition that if he do not pay me 20l. such a day that I may reenter in this case I may devise this 20l. if it be paid and the Devise is good albeit it be made before the day of paiment come Childs case 17. Ia. B. R. And if a man be possessed of a Terme of yeares and devise all the residue of that Terme of yeares that shall be to come at the time of his death this Devise is good and yet such a Grant by deed is void Grant * But a meer possibility and a thing altogether incertain is no more devisable by will then it is grantable by deed 19. Emblements i. e. the Devise of Emblements Perk. Sect. 520. 521. c. See in grantâ— corne that is sowen and growing upon a mans ground at the time of his death and which himselfe should have reaped if he had lived to the harvest as in most cases he shall where he doth sowe it are devisable And therefore if a man have land in Fee simple Fee taile for life or yeares and sowe it with corne he may devise the corne at his death to whom he please And yet if Lessee for yeares sowe his land so little while before his Terme expire that it cannot be â—ipe before the end of the Terme and he die it seemes he cannot devise this corne for if he had lived he could not have reaped it after the end of the Terme 20. Obligations Counterpanes of Leases and Perk. Sect. 527. such like things also are devisable but in this case the Devisee cannot Devise of Obligations Counterpanes of Leaseâ— c. sue upon the Obligation in his own name nor enter for the condition broken upon the Lease if there he cause but he may cancell give sell or deliver up the Obligation or Counterpane to the Obligor or Lessee And finally whatsoever shall come to the Executor See inâ—â—â— in Numb after the death of the Testator in the right of his Executorship may be devised by the last Will and Testament of the Testator 21. Devise ofâ— the things a man hath in Iointure wiâ—h another Perk. Sect. 52. Litt. Sect. 287. Doct. St. 167. The goods and chattels that a man hath joyntly with another are not devisable And therefore if there be two Iointenants of goods or chattels as where such things are given to two or two do buy such things together and one of them devise his part of the things to a stranger this Devise is void Insomuch that if in this case the Testator make the other Ioyntenant his Executor the Will as to this is void and he shall not be charged as Executor for those goods but he shall have them altogether by right of survivorship 22. The Devise of the things a man hath in anothâ—â—s right Plow 525. B100 Administrator 7. 〈◊〉 Adm. 〈◊〉 goods and chattels that a man hath in anothers right are not devisable and therefore an Executor or Administrator cannot devise the goods and chattels he hath as Executor or Administrator for such a Devise is void Howbeit the Executor may appoint an Executor of the goods of the first Testator which the Administrator cannot do And of the profits that do arise by the goods and chattels the Executor or administrator hath during the time of his Administration he may make disposition The goods and chattels belonging to Colledges and Hospitals may not be devised by the Testaments of the Masters or governours thereof noâ— the goods and chattels belonging Doct. St. lib. 2. c. 39. Perk. Sect. 4â—6 49â— 49â— to other Corporations by the Mayors Bayliffes or Heads thereof * And the goods and chattels that Churchwardens have in the right of the Church are not devisable * Perk. Sect. 560. Doct â—t c. 7. All the chattels reall that a man Husband and wife hath in the right of his wife by her means and all the Obligations that are made to her alone before or during the time of the Coverture and the chattels reall or personall that his wife hath as Executrix to any other are not devisable by the Testament of the husband But all the chattels personall that a man hath by his wife which she hath in her own right and the debts due upon Obligations made to the husband and wife both during the Coverture are devisable by the Testament of the husband 23. Such things as are annexed and incident Devise of things that are incident and annexed to some other thing to a Freehold or inheritance so that it cannot be severed from Perk. Sect. 526. Relw. 88. See before it by him that hath the propertie of them as wainscot and glasse to houses and the like are not devisable but in such cases where the thing it selfe to which it is annexed is devisable 24. The goods and chattels that are another mans are not devisable and therefore Plow Granthams case Câ—o. super Litt. 185. Coo. super Litt. 308 Devise of things that are not the Devisors or belong not unto his Executor if a man give another mans horse it is is a void Devise So if one devise the things that by speciall custome of some places as the heire loomes do belong to the heire this Devise is void for it is not devisable from him 25. If a Bishop have a Ward belonging to his Trin. 13. Ia. Curia B. R. Bishoprick fallen he may devise it but if a Church of his become void in his life time he cannot devise the Presentation If a Parson of a Church have the Advowson in Fee and he devise that his Executors Devise of a Preâ—entation to a Church two or three of them shall present at the next avoydance this is a good Devise 26. All these things before that are devisable Swinb part 7. c. 5. Plow 525. Perk. Sect. 500. when they are devised must be named and devised either by their proper name or otherwise described by some other matter whereby Mistake or error in the 〈◊〉 devised the mind of the Testator may be known and discerned for if he erre and mistaken in the name or substance of the thing devised or it be so incertainly devised and described that it cannot be perceived what he intendeth the Devise is void And therefore if one devise a piece of ground by the name of a Mesuage
this doth not alter the custome but by this all the sonnes shall take If a man devise his land to his wife for life the remainder to â—â—tz 〈◊〉 2. his sonne and the heirs males of his body engendred and for default of such issue the remainder to his next heir male and the heires males of the body of that heire male and after his sonne die without issue living his wife and the Devisor hath issue a daughter who hath issue a sonne in this case and by this Devise it seemes the daughter and not her sonne shall have the land and that in Fee-simple If a man devise his land to his wife for life and after to his own Trin. 9. â—ac Aâ—â—â—dged Curteâ—s case right heirs males and he hath issue three daughters and after his death one of them hath a sonne in this case and by this Devise the next collaterall heire male of the Devisor and not the sonne of the daughter shall have the land If a man have issue two sonnes and a daughter and devise his Dâ—er 122. land to his wife for tenne yeares the remainder to his younger sonne and his heirs and if either of the said two sonnes die without issue of their bodies the remainder to the daughter and her heirs and the younger sonne die in the life time of the father and after the father die in this case and by this Devise the daughter hath a good remainder but it seemes the elder sonne hath first an estate Taile by the intent of the Devisor If a man devise some land to A his eldest daughter and her Dâ—eâ— 330. heires and if she die without issue to T his youngest daughter and her heirs and if she die within 16 years that A shall have her part to her and her heirs and if A marry such a one that T shall have her part to her and her heirs and if T die having no issue that all her part shall goe to M and E his Neâ—ces and if A die without issue that T shall have her part to her and her heires and T after the 16 years doth die without issue in this case the Neeces M and E and not A shall have her part that is dead If land be devised to A for life the remainder to a Monke for Perk. Sect. 5â—6 â—67 life the remainder to I S in Fee by this Devise he in the remainder in Fee shall take presently after the first estate for life ended and if the Devise be to a Monke for life the remainder to I S in Fee by this I S shall take presently If a man devise his land to a womâ—n and her brother and the Dyer 326. heirs of either of their two bodies and for default of issue of the said woman and her brother the remainder to the right heires of the Devisor and after the death oâ— the Devisor the brother dyeth without issue and the sister hath issue and dyeth in this case and by this Devise her issue shall have a moity and no more of the land If one devise two parts of his Land to his four younger sonnes Dyer 304. in Taile and that if the Infant in the wombe of his wife be a sonne that he shall have the fifth part as co-heire with the four and if his five sonnes die without issue that the two parts shall revert and then the Devisor dyeth and after a sonne is born and after he and three of the other sonnes die in this case and by this Devise the Infant shall not take any thing because he is uncapable and the two parts shall not revert to the heire untill the five sons be dead without issue If one devise the Mannor of Dale to the eldest sonne of I S in Adiudged Co. B. M. 36. 37 Eliz. Brownes case Fee and the Mannor of Sale to I D for life the remainder to such of the children of I S as shall be then living and shall have the Mannor of Dale and the eldest sonne of I S after the Testators death doth sell the Mannor of Dale and after I D dyeth in this case and by this Devise none of the children of I S shall have the Mannor of Dale but it shall goe to the heires of the Devisor If one devise his land to the children of I S by this devise the children that I S hath at the time of the Devise or at the most the children that I S hath at the time of the death of the Testator and not any of them that shall bee borne after his death shall take If one have two daughters by divers women and devise a moity of Dyer 34â— his land to his wife for seven yeares and that the elder daughter shall enter into the other moity at her day of marriage and if his wife be with child of a daughter that then she shall have an equall portion with the other sister and the Devisor dyeth and the wife doth enter and hath not a daughter and then the elder daughter doth take a husband and enters upon a moity the younger daughter dies without issue and the seven years expire in this case and by this devise the collaterall heir of the younger daughter shall have the moity of the whole and not the moity of a moity only and that by discent If a man have issue B C and D sonnes and he devise his land Curia B. R. Mich. 20. Iaâ— Next of blood to D his sonne the remainder proximo de sanguine or to the next of blood of the Testator in this case and by this Devise B shall take after the death of D as the next of blood In like manner if the Testator have four daughters and he devise his land to the youngest in Taile the remainder to the next of blood by this Devise the eldest daughter and not all the rest shall have the land And if the Testator have issue B his elder sonne and C his younger son and B have issue D his sonne and B is attainted and dyeth and the Testator deviseth his land to I S for life the remainder to the next of blood of the Testator by this Devise D and not C shall have the land If a man have issue B and C sonnes and D a daughter and devise Broo. Dâ—scent Piâ— 19. 8. Aâ—â— Pl. 4. his land to C for life and after that it shall remaine to the next of blood to his children to the next heirs of the blood of his children and C dyeth and B dyeth without issue and D hath issue a daughter in this case and by this Devise the heires of A shall not take but the next of blood to the children of A which is the daughter of D and his children themselves are excluded and if the sonnes have any issues living they shall take with her by this Devise If the Testator have issue by A his first wife three daughters â—â—â—â—dged Mâ—
20. Iâ—c periâ— versâ—s Peaâ—se B. R. Joane Elizabeth and Anne and by B his second wife â—lice and Elizabeth and by C his third wife William a sonne and three daughters Mary Katharine and Johan and he devise his land to Johan his youngest daughter for life paying 1â—s 4d to the sonne and after her death to the sonne and the heirs of his body and after his death without issue to Elizabeth the daughter of the second wife and Mary the daughter of the third wife for their lives the remainder in Latin to the next of the blood of the Devisor for ever and the elder Joan hath issue I P and dyeth the sonne dyeth without issue the younger Joan hath issue and dyeth Elizabeth of the first wife hath issue and dyeth Anne dyeth having issue Alice dyeth without issue Mary and Elizabeth born of the second wife die without issue Katherine dyeth without issue in this case and by this Devise the sonne and heir of the elder daughter after the death of the sonne without issue and of Elizabeth and Mary and not all or any of the children or their children shall have the land because proximo in Latin doth devote a person certain and there be expresse Devises to others But if in this case the remainder bee limited in generall to the next of blood without any other matter all the daughters perhaps may have it as Joint-tenants If a man have two sonnes and a daughter which hath two daughters â—â—â—z Devise 9. Perk. Sect. 508. and he devise his land to a stranger for life the remainder to his second sonne for life the remainder in Fee to the next of blood to his sonne in this case if the eldest sonne die without issue the daughter and her daughters shall have the land Whatsoever will passe by any words in a Deed will passe by Secondly in respect of the thing devised See in the Exposion of Deeds supra the same words in a Will and more also for a Will is alwayes more favourably interpreted then a Deed And therefore if a man devise the profits use or occupation of land by this Devise the land it Coo. 8. 94. Plow 525. selfe is devised If a man devise thus I give all my lands to I S or I give all my Mevils case Fitz. Deviâ—e 4. Bâ—oo Done 41. tenemeâ—ts to I S or I give all my lands and tenements to I S by this Devise is given and I S shall have not only all the lands whereof the Devisor is sole seised but also all the lands whereof he is seised in common or co-parcinery with another and not only the lands hee hath in possession but also the lands hee hath in reversion of any estate in Fee-simple but by this Devise regularly Leases for years of lands will passe If a man devise thus I give all my land in possession only by Plow 66. this Devise there is given the lands he hath in possession only and none of the lands he hath in reversion If a man be seised of land in Fee-simple in Dale and devise thus Plow 343. 544. old N. 〈◊〉 89. Fitz. Devise 17. I give all my lands in Dale to I S and after Will made and published he doth purchase other lands in Dale and dyeth in this case and by this devise I S shall not have the new purchased lands and in this case it hath beene held further That if the Testator doe by word of mouth after the purchase of the same lands declare himselfe to be minded that I S shall have the same new purchased lands also by this Devise that notwithstanding I S shall not have them by this Devise * Trin. 37 Eliz. B. R. Breckford versus Parincoâ—e And yet it hath been adjudged That if in this case one come to the Devisor to buy his new purchased land and he say nay but I S shall have it as the rest that this is a new publication of the Will and that I S by this devise shall have these new purchased lands for a new publication of the Will in these cases will make the land to passe But if a man devise the Mannor of Dale and at the time of the devise he hath it not or devise his lands in Dale and at the time of the devise he hath no lands there and afterwards he doth purchase the Mannor of Dale or lands in Dale by this devise and in this case the Mannor and the new purchased lands will passe for in this case it shall be intended he meant to purchase it And yet the Statute enabling a man to devise lands saith Any person See before having c. Coo. 3. 30. If one have an ancient Tenement and lands belonging to it and Loftis versus Baker Hill 20. Ia. B. R. then purchase more lands and occupy them altogether with the Tenement many years and being all thus in his occupation he doth make a devise after this manner I give my Tenement in Dale and all my lands belonging to it now in my occupation to I S. by this devise I S shall have the ancient land onely and none of the new purchased land but if there be no ancient land belonging to the Tenement but new purchased land onely there perhaps it may be otherwise for in this case the words cannot else be satisfied As in case where a man hath some lands in Fee-simple and other lands for yeares onely in Dale and he devise all his lands and Tenements in Dale by this devise the lands he hath for years doth not passe but if he have no other lands in Dale but these lands in this case perhaps this land will passe If one have a moity of lands in Essex and a moity of lands in In Mevils case Kent and he devise thus I give my moities and all my other lands in Kent to I S it seems by this devise the moities in both Counties do passe and that I S shall have both the moities If a man be seised in Fee in possession of the moity of a Farm called Plich 20. 12â— Adiudged Scatergoods case the Farm of C. and of the reversion in Fee of the other moity expectant on a lease made to A and B for their lives and he make his Will thus I will that my wife shall have all my living which I now occupy untill my son come to 21. years of age and then I will have her have the thirds of all my living and that my sonne shall have all my Farm of C to him and his heirs by this devise if A and B dye before the heire be 21. yeares of age the wife shall have the thirds of the whole Farm and not of the moity in possession onely If a man be seised of land in a Village and in two Hamlets of the Dyer â—65 same Village and he devise all his lands in that Village and in one of the Hamlets by this
devise none of his land in the other Hamlet doth passe If a man make his Will the first day of May and thereby give the Plow 34â— Mannor of Dale to one in Fee and the tenth of May one of the Tenancies escheat and the 20. of May the Devisor dyeth in this case and by this devise it seems the Devisee shall have the Tenancie that doth escheat If one devise his land thus I give my land in Dale to I S and 3. In respect of the estate and time that is devised Fee-simple his heires or to I S in Fee or to I S in Fee-simple or to I S for Litt. Broo. Sect. â—â—3 Perk. Sect. 1. 6. Litt. Sect. 586. â—elw 4â— Coo. super Litt. 19. 20 H. 6. 35. Litt. B100 Sect. 432. 19. H 8. 10. ever or to I S Habendum sibi suis or to I S and his Assignes for ever or thus I give my land to I S to give sell or do therewith at his pleasure by all these and such like devises a Fee-simple estate is made of the thing devised and I S shall have the same to him and his heirs for ever But if land be granted by Deed after this manner I S by this grant in all these cases except onely in the Deed. first case hath onely an estate for life * Fitz Devise 111. And if a man devise his land to I S and say not how long nor for what time by this devise I S hath an estate for life only in the land If a man devise his land to I S and his Assignes without saying Coo. super Litt. 9. Perk. Sect. 57. 239 New Terms of the law tit Devise for ever it is said by some that by this devise I S hath onely an estate for life * Tâ—â—n 2. C. B. R. reply Daniels case Coo. 6. 16. Dyer 126. But the contrary is affirmed elsewhere and that it is a Fee-simple If one devise his land to his wife to dispose thereof at her will and pleasure and to give it to one of her sonnes in this case and by this devise she hath a Fee-simple but it is qualified for she must convey it to one of her children and cannot convey it to another If one devise his land to I S paying 10. l. and use no other words by this devise the Devisee hath the Fee-simple of the land albeit the 10. l. be not the hundredth part of the worth of the land * Adiudge Hill 36. Eliz Co. B. And yet if one devise his land to I S for his life paying 10. l. by this devise I S shall have an estate for life only If one devise land of the value of 50. l. per annum to J S for life the remainder to I D paying 40. l. to W. by this devise J D shall have the Fee simple of the remainder upon condition If one have two sonnes and he devise his land first to his wife and Hill 17. Iac. B. R. adiudged Spiceâ—s case then he saith thus In like manner I will that my sonne A. shall have it after my wives death and if my wife dye before my sonne B then that my sonne A shall pay to B 3. l. by the year during the life of B and also 20. l. to W S. by this devise A shall have the Fee-simple of this land â—f one devise his land thus I will my land to my sonne W for his life and after his death to my sonne T and if my sonne W purchase Câ—â—ia M 18. â—ac B. R. Green ver 〈◊〉 â—us Dewell land as good as that land for my sonne T then that my sonne W shall sell the land devised to my sonne T as his own and I will that my sonne W shall pay to his Sisters â—0 l. by 20. s. a year in this case and by this devise W hath a Fee-simple for power to sell giveth by implication an estate in Fee-simple and it is paying also c. If one devise land to his wife and her heires and if the heire put her out that she shall have other land by this devise she hath the Fee-simple Pasch 14. Iac. B. R. Curia of the first land and is not abridged by the latter words If one devise his land thus I give White Acre to my eldest sonne and his heires for his part Item Black Acre to my youngest sonne Trin. 30. Eliz. for his part by this devise the younger sonne shall have the Fee-simple of Black Acre So if I give White Acre to I S Item Black Acre to I S and his heires by this devise I S shall have the Fee-simple of White Acre also If one give land to his wife for life the remainder to his sonne and Perk. Sect. 566. the heires males of his body and for want of such issue the remainder to the next heire male of the Donor and the heires males of his body it seems by this devise that the next heire male of the sonne hath a Fee-simple If one devise his land thus I give my land in Dale to I S and to his or to the heires males or heires females of his body or of his Coo. super Lit. 21. 26. â—ee-taile body begotten or to I S and his issues male or his issues female or to I S and the heires males of his body begotten on M or to I S and E his wife and the heires males or heires females of their two bodies begotten or to I S and his heires if he shall have any heires of his body else that the land shall revert or to I S and his heires if he have any issue of his body or to I S and the right heires males of his body or to I S and his heires provided that if he dye without heires of his body that the land shall revert by all these and such like devises an estate taile is made of the thing devised and I S the Devisee shall have the same accordingly If one devise his land thus I give my land in Dale to I S et somini Coo. super Litt. 9. Broâ— tit taile 21. Coo. super Lit. 20. 6. 1â— suo by this devise I S hath an estate taile But if he say I give my Deed. land in Dale to I S et sanguini suo it is said by this devise I S hath the Fee-simple of the land If one devise his land to I S â—t exitibus vel prolâ—bus de corpore suo by this devise if I S have no children at the time it seems he hath an estate taile but by such a limitation by deed is made onely an estate for life If one devise his land thus I give my land in Dale to I S for life the remainder to I D and E his wife and their children or to I D and E his wife and their men children or to I D and E his wife and their issues by these
devises if the husband and wife have no children at the time of the devise is created an estate taile and if they have any children at the time of the devise then hereby is created an estate for all their lives onely in joyntenancie And if land be devised to A for life the remainder to B and the heires of his body the remainder to I S and his wife and after to their children by this devise I S and his wife have estates for their lives onely and their children after them estates for their lives joyntly And albeit they have no children at the time yet every child they shall have after may take by way of remainder And so also it seems is the law upon such a limitation by Deed Deed. If lands be devised to I S and his heires males or his heires females without saying of his body by this devise I S hath Deed Litt. Sect. 31. 9. H. 6. 25. 27. H. 8. 27. an estate taile But if such a limitation be by deed it is a Fee-simple If one have two sonnes and devise White Acre to his eldest sonne and his heires and Black acre to his youngest sonne and his heires Hill 22. Iac. B. R. Daniels case and if either of them dye without issue then that the other shall be his heire by this devise either of them hath an estate taile and no Fee-simple If one have land in Kent in W S and T and have one male child Adiudge M. 9. Iac. Wallops â—ase and a daughter and his brother hath three children B C and D and he devise his land thus Item I give my land in Kent to my male childe and his heires and if he dye without heires of his body that that the land in W shall go to B and his heires Item I will my land in S to C and his heires and my land in T to D and his heires in this case and by this devise the male child of the Devisor hath an estate taile in all the lands and after his death without heires it shall remaine according to the Will So that if one devise his land to his eldest sonne and his heires and if he dye without heires of his body that it shall remain to his youngest sonne and his heires by this devise the eldest sonne hath an estate taile and the youngest sonne the Fee-simple If one devise his land to his sonne W and if he marry and have any issue male begotten of the body of his wife then that issue to Coo. 9. 127 have it and if he have no issue male then to others in remainder by this devise it seems W hath an estate taile to him and the issues male begotten on the body of his wife If one devise White Acre to I S and the heirs of his body and then after saith thus and I will that I D shall have Black Acre in the same Perk. Sect. 561. 20. H. 6. 36. manner that I S hath White Acre by this devise I D hath an estate tail in Black Acre as I S hath in White Acre Et sic de similibus * Tr. 30. Eli. And if one devise White Acre to I S and then say Item Black Acre to I S and the heires of his body by this devise he hath an estate taile in both Acres If one devise his land to his wife for yeares the remainder to his younger sonne and his heires and if either of his two sonnes dye Dyer 122. without issue c. that it shall remaine to his daughter and her heires and the younger sonne dye in the life time of the Father and after the Father dyeth it seemeth by this devise the elder son shall have the land in taile If one devise his land to his wife for life and after to his sonne Adiudge Tri. 7. Iac. Co. B. Robinsons case and if his sonne dye without issue having no sonne or having no male then that it shall goe to another by this devise the sonne hath an Estate taile to him and the heires males of his body If lands be given to a man and woman unmarried and the heires of their two bodies or to the husband of A and wife of B and the Coo. super Litt. 20. 26. Plow 35. heires of their two bodies by these Devises are made estates in Taile If a man devise White acre to his three brothers and Black acre to C his brother so as he pay 10l to I S and otherwise that it shall remain Dyer 333. to the house provided that the same lands be not sold but go unto the next of name and blood that are males if it may be it seemes that by this devise C hath an estate tail in black acre and that if he die without issue it shall go to the three other brothers and their heires males in taile one after another and that white acre also is so entailed in every of their parts For the words shall remaine to the house shall be construed to the most worthy of the Family and the words that are males shall be construed in the future tense If land be devised to I S and the heires of his body and that if he die that it shall remain to I D by this Devise I S hath an estate Adiudg 14. Eliz. Coo. B. Trin. 9. Iac. B. R. Taile and the latter words do not qualify the former but I D must attend his death without heires of his body before he shall have the land If land be devised to I S and the heirs males of his body and if it Dyer 171. happen that he dye without heire of his body that it shall go to H and his heires by this Devise I S hath an estate to him and the heires males of his body and the subsequent words do not alter nor enlarge the estate If land be devised to I S and E his wife and to the heires of Coo. super Litt. 26. the body of the Survivor of them by this Devise the Survivor shall have a generall estate Taile If land be devised to I S and the heires he shall have by A his wife by this Devise I S hath a Fee Taile and not a Fee simple as Coo. super Litt. 26. Deed. he hath in case of such a limitation by deed If land be devised to I S and to the heires of the body of such a woman by this Devise I S hath an estate Taile and begotten Coo. super Litt. 26. shall be intended begotten by him If one devise land to his sonne and his heires and that if his sonne die within the age of 21 yeares or without issue that the land shall Adiudg M. 37. 38 Eliz. Sale versus Geâ—rard remain over and the son dieth within age having issue in this case and by this Devise the sonne hath an estate Taile and or in this place shall be taken for and If land
one doth devise his land to I S after the death of his wife that by this Devise the wife hath an estate for life by implication And therefore if a man devise thus I give my goods to my wife and that after her decease my sâ—nne and heire shall have the house where the goods are it is held by this Devise that the wife hath an estate for life in the house by implication for a man is bound to provide for his own wife But if a man devise his land to I S after the death of I W a stranger to the Devisor it seemes that by this Devise I W hath no estate at all by implication and that this doth but set forth when the estate of I S shall begin and that the intent of the Testator is that his heire shall have it untill that time If one devise land thus I give my land in Dale to I S to the intent Coo. 6. 16. 3. 20. Bâ—oo Estates 78. that with the profits thereof he shall bring up a child or to the intent that with the profits thereof he shall pay to A 10l or to the intent that he shall out of the profits thereof pay yearly 10l by these Devises I S hath only an estate for life albeit the payments to be made be greater then the rent of the land And therefore it is not like to the case before where a summe of money is to be paid presently If one devise his land thus I give my land to Alice my Cosin in Dyer 357. Fee-simple after her decease to W her sonne who is her heir apparant by this Devise she hath an estate for life first the remainder to her sonne for his life the remainder to the heirs of A in Fee-simple And so also is the Law when the Devise is to any other after that manner If my father be tenant for life of land the remainder to me in Fee Dver 371. and I devise this land to my wife rendring for her naturall life 40â— to the right heir of my father by this Devise my wife hath an estate for life after the death of my father If one devise his land unto his Executors untill his sonne shall Fâ—r 〈◊〉 come unto 21 yeares of age the profits to be imployed towards the â—oo 3. 20. performance of his Will and when he shall come to that age then that his sonne and his heires shall have it by this Devise the Executors shall have it untill he be 21 yeares of age and if he die before that time untill the time he should have been 21 yeares of age if he had lived so long and shall in this case shall be taken for should If one devise his land to his Executors for the paiment of his debts and untill his debts be paid by this Devise the Executors have Coo. super â—â—tt 42. but a chattell and an incertaine interest and they and their Executors shall hold it untill the debts â—e paid and no longer If one devise his land to I S and the heires males of his body Coo. 10. in Leonard â—oveis case 87. 46. for the term of fifty yeares it seemes that by this Devise I S hath but a Lease for so many yeares if the heires males of his body shall so long continue and that for want of issue male the terme of yeares shall end And in this case the Executor or Administrator 〈◊〉 not the heirs males of I S shall have it after his death If one devise his land thus I give to I S and I D and their Adiudged Loweâ— versus Câ—xe Mich. 37. 38. â—liz Co. B. Dyer 25. Lit. Bâ—o Seâ—â— 133. Lâ—tt 2â—3 Perk. Sect. 170. Dyer 350. heirs my land in Dale equally or my land in Dale to be equally Fourthly in respect of other 〈◊〉 divided by these Devises I S and I D shall have and hold the land not as â—ointenants but as Tenants in common so that the heire and not the servivor shall have his part that first dyeth And yet in case of such a limitation by Deed it is otherwise And if one devise his land to I S and I D and their heires without more words it seemes that by this Devise they shall take and hold as Joint-tenants * Dyer 326. And yet if one devise land to I S and I D and the heires of either of their bodies lawfully engâ—â—dred it seemes that by this Devise I S and I D shall take and hold aâ— Tenants in common and not as Ioint-tenants * Paâ—che 9. Ia. New mans case And if one devise his land to I S and I D thus I will that I S and I D shall have my lands in Dale and occupy them indifferently to them and their heires If one be possessed of a terme of yeares of land and devise the Hill â—3 Ia. B. R. Adiudged Blandfords case Devise of gâ—ods and chattels same to his wife during all the years and if she die within the years then to A and B his two sonnes if they have no issue male but if they or either of them have issue male then that it shall goe to First in respect of the person that shall take by the Dâ—vise the use of those issues male and she die and the two sonnes die without issue born one of their wives being privily with child of a sonne which after his death is borne in this case and by this devise this issue male shall have it assoone as he is borne If one be possessed of a terme of yeares and he dâ—vise it to another Coo. 10. 4â— Lampets case Perk Sect. 558. 559. and his heires or his heirs males by this Devise the Executors Executors or Administrators not the heirs of the Legatee shall have it And Hâ—ire therefore if Lessee for years of land devise all his interest therein to his wife if she live so long and after her death if any part of the term be to come devise the same to I S his sonne and the heirs of his body in this case and by this Devise the Executors and Administrators of I S not his heires shall have it at least so long as he hath any heires of his body And yet if one possessed of a term of years devise it to I S and after his death that the heir of I S shall have it in this case I S shall have so many years of the term as he shall live and the heir of I S and the Executor of that heir shall have the residue of the term If one give 10 l. to the children of I S and at the time of the Swinb 316. Devise I S hath foure children and after before the death of the Testator he happen to have two more in this case and by this Devise the two children he hath afterwards shall have no part of the 10 l. but those foure he had before shall have
remaine to I D and his hâ—iâ—â—s in this case if the Devisee doe not pay the money I D shall not take advantage of it nor have the land according to the Devise but the heir of the Devisor shall enter and have the land and put out the Devisee And if one devise his land to I S for life on condition to pay 20 l. to I D and after to I D in Taile in this caâ— if I S doe not pay the 20l. it seemes the heire shall enter and hold the land during the life of I S and that I D shall not have it till then And in cases of Devises of goods or chattels other words will Swinb 136 make a Devise conditionall in divers cases as when as I give to to I S 10 l. when he shall be married and whiles as I give to I S â—0 〈◊〉 whiles he shall abide with my children which is as much as if he abide with my children and which as I give him 〈◊〉 which shall marry my daughter and the ablative Case absolute as my sonne being dead I give to I S 20 l. And of all these conditions regularly the Executor and no other shall take advantage But if the condition bee such for the matter and substance of it as is impossible unlawfull or the like there perhaps these words may not make a condition nor the thing devised conditionall but rather make the whole sentence void Whereof read Swinb part 4. Sect. 5. at large If one devise his land to his daughter and heir apparant in Fee-simple 11. Where a Devise void or voidable in his exception may become good by matter ex post facto or not â—itz tit Asâ—â—se 27. this Devise is void yet if in this case the wife of the Devisor be privily with child of a sonne which is born after his death now is the Devise become good for now shee is not heir to her father If a woman that hath a husband devise her land by Will during Plow 344. the Coverture and after her husbands death when she is sole she do publish and approve it in this case and by this meanes the Devise is become good but if she make and publish it during the Coverture and after her husband die and she become sole this accident without any more will not make the devise good the same Law is of the Devise of good and chattels If an Infant within age devise his lands or goods and publish his Plow 344. Will and after he comes to bee of full age he doth publish and approve it againe in this case and by this meanes the Devise is become good but if the Infant live to be of full age and doe not publish and approve it contrâ— If a Legacy of goods or chattels be given on condition to a man Swinb 340. uncapable and before the condition is extant he doth become capable in this case and by this meanes the Devise is become good See before at Numb 6. more of this matter A Devise that hath a good beginning is sometimes avoided and 12. Where 〈◊〉 Devise good in his inception shall or may become void by matter ex post facto or not Liâ—â— 16â— Coo super 〈◊〉 112. Plow 540. 541. Coo. 8. 〈◊〉 33. overthrown by subsequent matter in the same Will and sometimes by subsequent matter in another Will and sometimes by some other accident ex post facto For if a man make a subsequent or latter Devise either in the same or in another Will so contrary and repugnant to the former that both cannot stand together this doth overthrow tâ—e former And therefore if a man doe give White Acre to I S in Fee or his white horse to I S and after by the same or another Will doth give White Acre to I D in Fee or his white By a subsequent repugnant Will horse to I D these latter Devises doâ— overthrow the former cum duo inâ—â—r se pugnantia reperiuntur in testamento ultimum ratum est And as a latter Will doth overthrow the foâ—mer so the latter part of a Will doth overthrow the former part of the same Will But if the Devisees be such as they may stand both together and are not directly repugnant nor doâ— fight one against another there the latter shall not overthrow the former but both shall be received And therefore if one devise his land to I S and his heires and See before after by the same Will devise a Rent out of the same land to I D and his heires or è contra So if one devise White acre to A for life and afterwards give the same acre to B in Fee in this case the one may have it for his life and the other may have the Fee-simple afterwards If one devise his land to his sonne and heire in Fee-simple or Plow 〈◊〉 Perk. Sect. 569. Litt. Bâ—â—â— 453. Kitchin 127. Dyer 317. 350. devise it to a stranger for yeares the remainder to his sonne and heire By a waiving of the estate devised in Fee-simple and the heire after the death of the Devisor doth as he may waive the estate given him by the Devise and claime the the land by discent in this case and by this meanes the Devise is become void But if the Devise be to the sonne and heire in Taile the remainder to a stranger there he cannot waive the Devise and take it in any other manner And so if a man have only two daughters who are his heire and he devise his land to them or have Gavelkind land and dâ—vise it to all his sonnes they may not waive these Devises and take by discent for by Devise they shall take as â—ointenants who otherwise by discent shall take as Parciners If one devise his land to another in Fee simple Fee taile for life Litt. 〈◊〉 Sect. 482. Perk. Sect. 569. Dyeâ— 6â— Coo. 9 140. Ploâ— 543. â—4â— â—r yeares and the Devisee after the death of the Testator doth refuse and waive the estate devised to him in this case and by this meanes the Devise is become void And it seemes a verball waiver is sufficient in this case So if one give goods or chattels to another and the Devisee refuse it by this meanes the Devise is become void and any waiver or refusall will suffice in this case for a man shall not bee compelled Nolens volens to take a thing devised to him If a woman sole devise her lands or goods by Will and after take Plow 34â— a husband and die during the Coverture by this meanes the Devise is become void And yet if she survive her husband and die unmarried now is the Devise become good againe If one devise his land to I S and his heires and afterwards I S Plow 60 34â— 34â— 34â— die living the Testator by this meanes the Devise is become voyd And in this case no verball declaration of
the Testator that the heires of I S shall have it will help for albeit a Devise of land in writing may be revoked by a verball subsequent declaration or by any act crossing or controlling that Devise yet a Devise becomming vold by that meanes cannot be made good by any such verball decâ—aratioâ— subsequent to the same Countermaund So if one give any goods or chattels to I S and he die before the Testator in this case and Se◠〈◊〉 Numb 14. by this meanes the Devise is become void and the Executor of I 〈◊〉 shall not have it And yet if a Devise be of land to A for life the remainder to B in Taile and A die before the Testator it seems Perk. Sect. 567. 568. the Devise of the remainder doth continue good notwithstanding And if one devise land or goods to the wife of 〈◊〉 S. and afterwards her husband dieâ—n and she marry with another man and then Plow 3â—â— the Devisor dieth this is a good devise notwithstanding and not avoided by either of these Accidents If one devise a Terme that he hath to A for life the remainder to such persons as shall be occupiers of White Acre at the death of A Per Iustice Iones M. 9. Iac Co. B. this Devise albeit in his beginning it be good yet if the Devisor die before A it seemes now to become void for he that will take by way of Executory devise must take as an immediate purchasor and be capable and knowne at the time of the death of the Testator If I give to I S 20l if he marry my daughter and she dye before he marry her in this case and by this meanes the Legacy is become Swinb 356. void If I give a debt owing to me to I S and afterwards I receive Perk. Sect. or release the debt hereby the devise is become void If a man make a Will and give Legacies and appoint one or more Litt. Broo. Sect. 300. his Executor or Executors and he or they after his death all refuse to take upon them the Administration yet in this case the Legacies remaine good and are not become void And in this case the course is to grant the Administration of the goods to him to whom it doth belong and to annex the Will to the Administration and then the Administrator is to performe the Will as the Executor ought to do It is held also that a Legacy of goods or chattels may become void by the injurious dealing of the Legatee against the Testator after the Legacy given whereof read Swinb part 7. Sect. 22. And when the thing devised is dead or spoiled howsoever by Swinb 357. this meaneâ— the Devise is not become void yet it looseth his effect and is as if it were void See more supra at Numb 5. In all these cases when the disposition of the Legacy is pure and 〈◊〉 Where a Legacy shall goe to the Executor when the Legateâ— dâ—th die before he dâ—th receive it And where 〈◊〉 no time is set for the performing of it or there is a set time for Swinb 350. â—55 35â— the doing of it and the Legatee die before the time and where the disposition of the Legacy is conditionall and a time set for the doing of it if the Legatee live till that time or the condition be performed in all these cases the Executor or Administrator of the Legatee shall have the Legacy and the same remedy to recover it that the Legatee himselfe had But if the Legatee die before the condition be performed contra And yet if in that case the Testators mind shall appeare to be that the Executor or Administrator of the Legatee shall have it or the condition be to be performed by another and there be no default in the Legatee or if the disposition be modall or the Legacy that was at first upon condition be afterwards repeated without condition or it be referred to a condition to be afterwards set downe and none is set downe in these cases the Legacy is not lost by the death of the Legatee but shall go to his Executor or Administrator as for Example If one devise 20l. to W S to be paid within 4 yeares after the death of the Testator and Broo. Devise 27. 45. Swinb 350. 355. Dyer 59. Swinb 358. 356. â—low 345. the Legatee die before the 4 yeares expired in this case the Executor or Administrator after the 4 yeares expired shall recover the Legacy If one give to W S 20l. when he cometh to 21 yeares of age and he die before he come to the age of 21 yeares in this case his Executor shall not have the Legacy But if the Devise be thus I give to W S 20l. and I will that it shall be paid him at his age of 21 yeares and he die before he come to the age of 21 yeares in this case his Executor shall recover the Legacy So iâ— one give to I S 20l. when he shall be married and he die before marriage in this case his Executor shall not have it But if one devise thus I give to W S 20l. towards his marriage and he dye unmarried in this case the Executor shall have and recover the Legacy So if one do give to W S 20l. when the Executor of the Testator shall dye in this case if W S die before the Executor the Executor or Administrator of W S shall not have the Legacy If one devise goods or chattels to I S and I â— die before the Testator the Executor or Administrator of I S shall not have this Legacy When any chattell reall or personall is given to an Executor by a Plow 519. 520. 543. Coo. 10. 47. 2. 37. 8. 96. Dyer 277. 367. Perk. Sect. 574. 573. 575. Will the Executor hath an election given him by the Law to have 14. Where an Executor upon a Deâ—iâ—e to him hath an Election to have the thing devised as Executor or as Legaâ—ee And when he shall have it in the one righâ— or iâ— the other and what act shall make a declaration of his Election and take it in the one right or in the other viz. as Executor or as Legatee and by his speciall entry or seising of the thing or some speciall declaration his election is to be made And if the Executor doe enter generally as most doe and never make any declaration which way or by which right he will have it as most Executors use to do he shall be said to have it and the Law shall Adjudge it in him as Executor and not as Legatee But if by any subsequent words or deeds he shall declare his mind to be otherwiâ—e he shall be in as a Legatee ab initio And yet if once he doe any such act as is proper to an Executor this is a disagreement to the Legacy ab initio and after that it seems he cannot take as Legatee but must take as
Administration of her goods and chattels And all these persons that may be Executors may be Executors by that name See before at Numb 7. Swâ—b 29â— as they may be Devisees And yet if there be two of one name and the Testator make one of that name his Executor and doth not say neither can it be discerned which of them he doth intend in this case neither of them shall bee Executor But it is said that an Heretick Apostaâ—e Traitor Felon Recuâ—ant Swinb 2â—â— 223. Coo. 9. 39. convict Sodomite Libeller Bastard begotten in Incest or a notorious Usurer cannot be an Executor And that if a man be for any of these causes uncapable at the time of the death of the Testator when the Executor is to take upon him the Executorship that hee is for ever uncapable but it hath beene held â—roo Non-ability 18. Fitz. Excomengment â—3 by the Common-Law that a person attaint may bee an Executor The most apt and proper words whereby to constitute an Executor 20. By what words a man may be made an Executor and what words in a Testament shall make a man full Executor or not but a Coadjutor or Supravisor and who shall be an Executor by such words Swinb part 4. Sect. 17. â—8 1â— Dyer 〈◊〉 19 H. 8. 8. 21 H. 6. 6. Fitâ— Executor 43. â—roo Executor 98. 73. Fitz. Executors 113. 121. Briefe 999. are I make I S my Executor or I make I S the Executor of my Will c. But an Executor may be constituted by other words equivalent or by implication And therefore if a man say in his Will I will that I S shall be my generall Administrator or I will that I S shall administer all my goods or I will that I S shall dispose all my goods and chattels or I commit all my goods to I S or I commit all my goods to the disposition of I S or I make I S Lord of all my goods or I make I S Legatary of all my goods or I leave all my goods to I S or I give all my goods to I S and make no other Executor in all these cases I S by intendment of Law is made Executor of all the goods and chattels of the deceased So if a man say Of all my goods I make I S and say no more but omit the word Executor by these words I S is made Executor So if one say I will that I S shall dispose all the goods that are in his hands by these words I S as to those goods is made Executor So if I deliver goods to I S to keep untill my death and then to distribute ad pios usus or for my soule hereby I S shall be my Executor if I D will not by this I D is made Executor in the first place by implication and if he refuse then I S shall be Executor But if a man make A and B his Executors and say I will that I S shall be a Coadjutor or helper to A and B ad distribuendum or ad administrandum bona mea or I will that I S shall be Surveyor or Supravisor of my Will in these cases and by these words I S is not made Executor with A and B. And yet if he say I will that I S shall have Administration of my goods or bee Executor with A and B or be Administrator with A and B in these cases and by these words I S is made joynt Executor with A and B. And if one supposing I S to be dead say I will that I D shall be my Executor because I S is dead in this case and by these words I S if he be living is made Executor first and if he refuse I D shall be Executor If one make A B and C his Executors and 〈◊〉 6. 6 7. then saith afterwards And I will that B shall administer my goods alone or that B only shall administer my goods it seemes in these cases B only is made Executor and that A and C are not made joint Executors with him In all Cases where a man hath any goods or chattels to administer 〈◊〉 Where and in what â—ase an Administâ—ation is grantable o◠〈◊〉 And to whom it doth belong to◠〈◊〉 to whom 〈◊〉 must 〈◊〉 Coo. 9. 〈◊〉 Plow 276. Doct. Stud 78. 132. Dyer 236. 〈◊〉 H. 7. 13. and he doth die a naturall or civill death and dyeth inâ—estate either in deed i. e. doth make no Will at all nor appoint any Executor or in Law i. e. that doth make one or more his Executor or Executors and he or they so appointed is or are such persons as are not in being or if they be in being is or are so incertainly named that it cannot be discerned whom the Testator doth intend or if he is or they be well named he is or they are all incapable by reason of some legall impediment or if otherwise they bee capable they doe all die before the Will be proved or if they live if being cited to come in before the Ordinary to prove the Will they either refuse to appear or if they doe appeare they refuse to prove the Will and to take upon them the Administration of the goods and chattels of the deceased in all these cases the Ordinary may and ought to grant the Administration of all the goods and chattels of the deceased to him that of right it doth belong unto according to his discretion And if a man make a Will and after the death of the Testator the Executor prove it and then die intestate the Ordinary must grant the Administration of the goods of the first Testator not administred in the hands of the Executor to some competent person or persons according to his discretion but where a man hath no goods and chattels to administer i. e. either he hath none or if hee have they are none of his or if they are there is an Executor named in rerum natura capable and well named and he doth accept or at least hath not refused the Executorship in these cases the Administration ought not to be granted or if it be granted it will be void or voâ—dable at the least And where an Administration is grantable it is to be granted by and had from the Ordinary of Stat. 31 Ed. 3. chap. 11. 21 H. 8. c. 5. Fitz. Administration 7. Litt. Bâ—oo Sect. 276. See infra Numb the Diocesse where the party whose goods are to be administred lived at the time of his deathâ— for regularly he that shall have the Probate of a Will in case where a man doth make a Will shall have the granting of the Administration of his good and chattels in case he die intestate And therefore if all the goods and chattels of the party deceased be within the same Diocesse wherein the intestate lived and dyed the Ordinary of that Diocesse or his lawfull Deputy or Commissary or the Arch-deacon of the Diocesse
or his Deputy or Officiall as the Custome of the Country is or the Dean and Chapter in time of vacation of the Bishop shall grant the Administration and the Administration shall be had from him but if there be bona notabilia in the case viz. if the party deceased have Coo. 5. 29. 3â— Dâ—er 30â— F. N. 〈◊〉 120. Plow 2â—7 281. 〈◊〉 6. â—8 19. Dyer 339. See inâ—ra at Numb Bona notabilia goods or chattels of the value of five pounds or upwards lying and being at the time of his decease in divers Diocesses in this case the Archbishop or Metropolitan of the Diocesse wherein the party dyed or Sede vacante the Dean and Chapter being Guardian of the Spiritualties and not the Ordinary of the particular Diocesse shall grant the Administration and it must be had from him for if the Ordinary of the particular Diocesse grant it when it ought to be granted by the Metropolitan the Administration is void not only as to the goods that lie within the other Diocesse but also as to the goods lying within the same Diocesse And so is it also if it be granted by the Ordinary of another particular Diocesse as if A die within the Diocesse of Lincoln the King being indebted to him at the time of his death and the Administration of his goods and chattels is granted by the Bishop of London this Administration is void And if the Metropolitan doe grant an Administration when it ought to be granted by the Ordinary of the particular Diocesse the Administration is voidable by sentence of the same Court out of which it is granted If one die in Ireland and have nothing but an Dyer 305. Especialty for money and that Especialty doth lie in England the Ordinary of the Diocesse within which that place is where the Especialty doth lie shall commit the Administration and if the Ordinary of another Diocesse grant it the Administration is void And therefore the case was A Merchant in Ireland was bound in an Obligation of 40 l. to one I S in London and the Obligation was made in Ireland but remained alwayes in London and the Merchant dyed intestate in the County of Bedford in England and a Bishop of Ireland did commit the Administration to one and the Archbishop of Canterbury did commit it to the wife of the Intestate who had the Obligation in this case the last Administration was adjudged good And it was there held that the Administration shall bee granted by the Ordinary of the place where the Especialty doth lie at the time of the death of the Intestate and not by the Ordinary of the place where the debt began And in cases where the Administration is grantable by the Ordinary and others as Stat. 31. Ed. 3. c. 11. 21. H. 8. c. 5. Litt. Bâ—oo Sect. 233. 415. Fitâ— Excomengment â—3 Coo. 9. 39. 40 3 40. Dyer 339. 〈◊〉 H. 7. 14. before such persons having power to grant it may not grant it to whom they please but as they are bound to grant it and cannot refuse so to doe so are they directed and appointed to whom they shall grant it For it is appointed by a speciall Law That the Ordinary shall depute the next friends of the Intestate to administer his goods if they desire it and the Administration is to be committed to the widdow or next of blood or both to the Intestate and where there be divers in equall degree and they all sue for it the Ordinary may accept them all or refuse some of them and commit the Administration to the rest only and if some of them only sue for it he may grant it to them alone So that now the Law and course is to grant the Administration to the nearest of kinnâ— to the deceased As 1. to the husband or wife and if there bee none such 2. to the children sonnes or daughters and if there be none such 3. to the Parents Father or Mother and if there be none such 4. to the brothers or sisters of the whole blood and if there bee none such 5. to the brothers or sisters of the haâ—â—e blood and if there be none such 6. to the next of kinne Uncles c. And if these come in time and desire the Administration the Ordinary may and must grant it to them and cannot grant it to any other if they be capable of it as most men are â—nd if divers of these in equaâ—â— degree desire it the Ordinary may grant to which of them hee pleaseth howsoever in this case it seemes most just and equall to grant it to them all unlesse he have â—â—me speciall reason to admit some and to exclude the rest and if none of these that are next of kinne shall desire it but suffer the time to slip in this case the Ordinary may grant it to whatsoever stranger hâ— please And yet then perhaps the next of kinne may by Suit get the same Administration revoked and a new Administration granted to him See infra at Numb 41. An Administration may and must be granted in writing under Dâ—er â—94 â—itz Admin 5. 34 H â—6 〈◊〉 Plow 27â— 22. How an Administration may be granted and what shall be said a good Administration or not Seale for by word of mouth it may not be granted and it may be granted as well upon condition as absolute and it may be granted as well for a part of the estate as for the whole And therefore if a man have goods in two Provinces and he make a Will of his goods in one of the Provinces and die Intestate for the goods in the other Province an Administration may be granted for the goods in this Province Also an Administration may be granted during or untill a certaine time or continually And therefore if a man make a Will and appoint an Executor for seven yeares after the seven years ended the Ordinary may and must grant an Administration of the goods So if one doe appoint another to be his Executor to be his Executor a year after his death the Ordinary may and must grant the Administration for that yeare untill the power of the Executor doth take place And all these Administrations are good If an Executor die after he hath proved the Will and he hath Staâ— 2â— Ed. 〈◊〉 c. 4. Coo. 5. 9. Plow 286. 34 H. 6. 14. 23. Who shall administer after the death of an Executor or Administrator and who not and how an Executor of an Executor shal charge and be charged made a Testament and appointed an Executor therein in this case this Executor also shall be Executor to the first Testator as he is to the second and he shall have all the benefit and be subject to all the charge that the first Executor had and was subject unto and yet the goods of one Testator shall not be subject to the debts of the other but each of the Testators goods shall be subject to the
payment of his own debts only a Trin. 1â— Iac. Co. 〈◊〉 Woâ—se Heideâ—â— case And if in this case the Executor of the Executor take upon him the Administration of the goods of the first Testator he cannot refuse the Administration of the goods of the latter but he may take upon him the latter and refuse the former But if the Executor refuse to administer to the first Testator Dyer 372. before the Ordinary or die before the Probate of the Will and hee hath made a Testament and appointed an Executor therein in these cases it seemes the Executor of the Executor shâ—d not administer the goods of the first Testator but the Ordinary must grant the Administration thereof And 〈◊〉 all the residue of the goods of the first Testator be given by the Testament to the first Executor after the debts be paid in this case albeit he die before Probate of the Will yet his Executor shall be Executor also to the first Testator or else he shall have the Administration of his goods and chattels granted unto him And therefore if A make his Will and Adiudged in Hâ—ll 〈◊〉 Car. in Dâ—â—s case give Legacies to B and D and give all the rest of his goods and chattels after debts and Legacies paid to C his wife and make heâ— his sole Executrix and shee die before Probate of the Will or any election made not knowing of the Will and E sue out an Administration of the goods of A and pay the Legacies to B and D and F sue out an Administration of the goods of C in this case the Administrator of C and not of A shall have the goods for the Law doth judge them in C after the debts and Legacies paid without any election If an Executor after hee hath proved the Testators Will die Bâ—oo Executor 117. 〈◊〉 H. 〈◊〉 7. Coo. 1 96. Dâ—er 372. Termes of the Law tit Administration Intestate in this case the Administration of the goods of the first Testator not administred in the hands of the Executor must be granted to whom the Ordinary shall think fit And if the Ordinary please hee may grant the Administration de bonis non administratis of the first deceased and of the goods of the second deceased to one and the same person And herein the Administrator must take care that his Administration have speciall words for the granting of an Administration of the goods of the first Testator not administred * Fiz Administrator 9 for howsoever some hold that by the generall Administration the Administrator shall have not only the goods of the Executor but the goods fo his Testator also yet it seemes this is not taken to be Law at this day If there be two Executors made and one of them doth refuse Dyer 160. before the Ordinary and the other doth prove the Will and make a Will himselfe and appoint an Executor and then die in this case it seemes the Executor of the Executor that did prove the Will alone shall have the disposition of all the estate and be Executor to the first Testator and that the surviving Executor shall not meddle therewith for that his Election by the deaâ—h of his companion is gone And if one make two Executors and one of them doth Litt. Broo. Sect. 17â— Bâ—oo Executor 49. 99. â—â—tz Executor 12. 113. Dyer 187. make an Executor and die and the other that doth survive hath accepted the Executorship in this case the surviving Executor shall have the sole disposing of the estate and the Executor of the deceased Executor shall not intermeddle therewith And if therefore the surviving Executor die Intestate an Administration de bonis non Aaministratis of the first Testator shall be grantted And if the Executor of the dâ—â—eased Executor have any of the estate in his hands the surviving Executor may take or recover it from him And if two bee maâ—e Executors and one of of them is uncapable in this case he that is capable shall administer alone If one that is Administrator of another mans goods doe make Dyer 372. 112. Coo. 5. 9 his Will and make an Executor and die oâ— doe die Interâ—ace and the Administration of his goods is granted to some body in the first of these cases the Executor and in the last the Administrator unlesse he be made Administrator of these goods also shall not meddle with these goods of the first deceased but the administration of the goods of the first deceased in the hands of the Administrator not administred must be granted againe And hence it is that if the Administrator of my goods have a judgement for a debt due to me and he dye before execution and make an Executor oâ— die intestate that in this case his Executor or Administrator shall never have execution of this judgement And the same law is of the Administrator of my Executor in this case An Executor or Administrator may accept or refuse the executorship Coo. 〈◊〉 37. 37 Hâ— 6. 27. 28. 20. H. 6. 1. 24. Where an Executor â—r Administratâ—r maâ— accept or refâ—â— the Executoâ—ship 〈◊〉 Administâ—â—â—on and hoâ— And wheâ—â—â—e may bâ—â— Executor 〈◊〉 â—e hath â—â—â—ed 〈◊〉 And whaâ— a 〈◊〉 intermâ—dling with the goods of the dead shall bâ—â— said an Admâ—â—â—stration and what not or the administration at his pleasure and therefore he may at any time before he hath intermedled with the estate as Executor or Administrator refuse it and if he be sued by any as Executor or Administrator he may plead ne unques Executor i. e. he was never â—xecutor or Administrator and did never administer and if it be true he shall by this meanes avoid the suite for a man shall not be compelled to take such a charge upon him whether he will or no Iâ— therefore there bee many Executors or an admâ—nistration bee granted unto many and one of the Executors prove the Will in the name of the rest or one accept the administration in the name of all the rest yet the rest may refuse to accept it and plead in any â—uite against them that they are not Executors or Administrators But as an Executor or an Administrator after he hath once legally refused the executorship or administration can never after intermeddle therewith so after he hath once legally accepted thereof that is hath done any thing as Executor or administrator and which is proper only for an executor or administrator to doe he can never after refuse it And his acceptance of part in this case will make him chargable with all except it bee in the case before of an Executor who may accept of the last Executorship and refuse the first If the Executors being cited to come in and prove their Will appeare Coo. c. 37. Fitz. administration 6. 11. Bâ—oo Administration 32. Executors 117. Coo. 5. 28. Peâ—k Sect. 4â—5 Dyer 1â—0 21. Eâ— 23. before the Ordinary and refuse to administer and to prove the Will they
And the executor or administrator of the Lord shall have Fines assessed upon the Tenants upon their admittances in the Lords time c Stat. 32. H. 8. cap. 37. Coo. 4. 48. Dyeâ— 575. And if I make a Fcoffment in Fee gift in tail or lease for life rendring Rent and the rent is behind and then I dye in this case the arâ—erages of Rent due to me in my life time shall go to my executor or administrator in the nature of a chattell So if a Rent be granted out of land to me in Fee-simple Fee-tail for life or years and it be not paid to me in my life time these arrerages shall go to my executor or administrator and not to any other d â— N. B. 120. L. And so also if a Parson have an annuity in Fee in the right of his Church and it be behind and the Parson dye in this case the executor or administrator not the successor of the Parson shall have the arrerages e Dyer 275. And if I be seised of land and possessed of a stock of cattell and let it to another for years and he covenant by the Lease to pay me and my wife our heirs and assignes 100l by the year during the term in this case after my death and my wives surviving me her executor or administrator and not my heir shall have this payment f Coo. 4. 63. And if one seised of land in Fee make a Feoffment of it to me excepting the trees and after grant me the trees for years or if he make me a Lease of the land first for years and after doth grant me the trees for a number of years to begin after the end of the term of the land in both these cases I have the trees in the nature of a chattell and if I dye my executor or administrator shall have them g Dyer 283. 34 H. 6. 27. And if a man grant to me the next Presentation to the Church of D in this case if I dye my executor or administrator shall have it as a chattell h See supra at Numb 7. And my wife shall have so much of her wearing apparell as is necessary and convenient for one in her estate and condition and therefore that shall not go to my executor But so much of her wearing apparell as she hath superfluous and more then necessary for her shall go to my executor or administrator after my death And the charters and evidences that do concern any of my chattels which my Broo. chatâ—els 12. executor or administrator is to have shall go with the same chattels So also any Charters whatsoever if they be pledged to me for money shall go to my executor or administrator untill the money be paid But otherwise those deeds and evidences that do belong to the heir as incident to the Inheritance shall not go to my executor or administrator after my death But matters of trust and such things as are personall as offices of trust wardships by reason of a Tenure in Socage or Jure naturâ— or the like shall not go to the executor or administrator after the death oâ— him that hath them So an Plow 29â— Coo. 3. 39. 9. 99. executor or administrator shall not have the grasse and trees growing on the ground no more then the soile or ground it selfe whereon they grow So an executor or administrator shall not have the Incidents of a house as glasse doores wainscot and the like no Kelw. 118. See before at Numb 7. more then the house it selfe nor pales wals stauks fish in Ponds Deere or Conies in Parkes Pigeons in Pigeon houses or the like If a Lease for yeares of land be granted to me and my heires Secondly iâ— respect of the case or to me and my successors and I dye my executor or administrator Coo. 10. â—7 Litt. Sect. â—40 Fitz. Accompt 56 F. N. B. â—20 and not my heire shall have this terme The same law is if a wardship or the next advowson of a Church be granted unto me and my heires or if a Covenant or an Obligation be made to me and my heires for in all these cases this is still a chattell in me that shall go to my executor or administrator and hee onely shall take advantage by it And if my heire or successor happen to get the Deed the executor or administrator may recover it from him And if a Lease be made to me for 20 years without naming my executors or administrators or assignes in the Lease in this case if I dye my executor or administrator notwithstanding shall have it during the terme h Coo. super Litt. 46. And if a Lease for years be made New termes of the Law tit assignes to a Bishop and his successors and he dye his executor or admistrator not his successor shall have it And if a man be possessed of a terme of yeares of land and grant it by deed or give it by Will to me and my heires or to me and my heires males or devise Coo. 895. 10. 87. Plow 524. it by Will to A for life the remainder to me and my heires in these cases I shall have these terms of years as chattels and after my death my executor or administrator shall have them h Litt. Sect. 740. And if a man grant a rent out of his land to me and my heires for 20 yeares and I dye my executor or administrator not my heire shall have this rent i M. 7. Ia. Co. B. Wats case Litt. Sect. 739. And if a rent bee granted to me my heires and executors during the life of I S and for one halfe yeare after and I dye in this case the half yeares rent shall goe to my executor or administrator and not to my heire And if I be seised Dyer 5. of land in Fee and make a Lease for years of it rendring rent and then devise this rent to a stranger and the devisee dye in this case his executor or administrator shall have it And if Lessee for life make a Lease for yeares absolutely this in Law is a Lease for so Coo. 7. 12. many yeares if the life so long live and shall go to the executor or administrator after his death If I have a box chest or trunk wherein my writings that doe Broo. Executors 145. 9â— Fitz. Executors 111. concern my inheritance do lie and the same is open and not sealed or locked in this case my Executor shall have it but if it be locked or sealed contra for then it shall goe to him that is to have the writings as incident thereunto And yet if there be any money plate or any other such like thing in the chest also my Executor shall have that thing The Incidents of a house as glasse-windowes annexed with Coo 4. 63. 21 H. 9. 26â— nailes or otherwise to the windowes the wainscot fixed by nailes skrewes or irons put
and dye these shall go to the Executor or Administrator not the successor of such a person And albeit such things be granted to them and their successors yet their executors and administrators and not their successors shall have it But if a Corporation aggregate as Dean and Chapter Mayor or Cominalty and the like have any goods or chattels in right of their Corporation and any of the Heads or Members thereof dye the Executors or Administrators of such person shall not have them but they shall continue in succession with the Corporation An Executor or Administrator shall have the benefit of a pardon Coo. 6. 80. Dyer 201. granted to the deceased and shall have advantage of any error in any outlawry against the deceased and have restitution of the goods forfeir thereupon The Executor or Administrator of a woman that hath a husband shall have by right of his Executorship or administration all Actions Husband and Wife Coo. super Litt. 351. Plow 294. 192. Rights and Titles to any chattels and possibilities and things of that nature which the wife had before the marriage and which sell to her during the marriage for these things the husband shall not have by the intermarriage after his wives death as he shall have all the rest of her goods and chattels execept he have them as executor or administrator to her as he may be And if such a woman have any goods or chattels as Executrix to another her executor or administrator not her husband shall have these also for she hath these goods in anothers and not in her own right If I have any goods or chattels in Iointenancy with another as if a lease be made of lands to me and another for years or a horse or other 〈◊〉 Sect. 281. Perk. Sect. 525. 526. Litt. Sect. 320 321. chattell personall be given or granted to me and another in these cases if I die my executor or administrator shall not have any part of these goods or chattels but the other surviving Iointenant shall have them all But otherwise it is of the goods and chattels that I and another have in Common And therefore if I and another have goods and chattels in that nature as before and he or I grant that which doth belong unto us thereof unto a stranger in this case the stranger and him of us two that hath kept his part are tenants in Common of the things and therefore if either of us die the part of him that dieth in the goods and chattels shall goe to his executor or administrator and not to the other Tenant in Common If I have a Judgement for land in a reall or mixt action and for damages recovered in the same Suit and I dye in this case my executor 〈◊〉 Executor 53. 84. â—17 or administrator not my heire shall sue execution for and recover the damages but not for the land So if I recover damages against another for the detaining of my Charters and dye my executor or administrator shall recover the damages but the heire shall have the Charters and the heire must sue his Scire facias for the Charters ere the executor can sue for the damages Also if I recover any debt or damage in any personall action my executor or administrator shall recover and have this See more infra at Numb 39. The power and interest which the Executor hath is wholly by Coo. 6. 18. 9. 38. 5. 27. Plow 280. 9. Ed. 4. 47. 36 H. 6. 7. Fitz. Administrator 2. 6. the Will And hence it is that an Executor whether he be absolute 26. What an Executor may doe by vertue of his Executorship And the power of an Executor Administrator oâ— Ordinary or conditionall whiles he is Executor may do any thing as Executor except only sue for debts and duties due to the Testator aswell before the Probate of the Will as he may do after for before the Probate he may enter into and seize the goods and chattels whatsoever they be or give power to another so to do and if any of them be taken or kept from him he may have an action of trespasse or a replevin to recover them he may give or sell any of the goods or chattels he may pay any of the debts due from and receive or release any debts due to the deceased But it is otherwise in the case of an Administration for in as much as his power and interest is given to him wholly by the Administration therefore he can do nothing untill the Administration be granted And yet in this case as to the goods taken away before the Administration the Administration shall have such a relation as to give the Administrator an action for them But otherwise after the Administration is granted the interest and power of the Administrator is equall to and with the power and interest of the Executor And yet it is otherwise of the power and interest of the Ordinary For howsoever it seemes by the ancient Common Law he might seize Coo. 8. 135. 9 39. Dyer 255. Westm 2. cap. 20. 31 Ed. 3. c. 11. preserve give grant and dispose the goods of the intestate to pious uses yet might he not sue for the goods or debts due to the intestate no more then he might be sued for any debt due from the intestate and at this day he may only keep and preserve the goods of the deceased until administration be granted and sue him in the Court of the Ordinary that doth detaine the goods from him and perhaps may sue him that shall take the goods out of his possession for he may not sell or give the goods of the deceased nor receive or release any debts for in case where there is an Executor made that is capable c. he is not to meddle at all with the estate untill the Executor refuse and where there is no Executor that the party is dead intestate the Ordinary is presently to commit the Administration to the nearest of the kinred which when he hath done his power is at a end for it is doubted of some whether he may repeale an Administration without cause or not but it hath been clearly held by all that he may not dispose of the estate afterwards and that he hath not power to enforce the Administrator to give portions to children out of the estate and that if he do goe about it either before or after the granting of the Letters of Administration the Administrator may have a Prohibition * Hill 13. Ia. Co. B. Henslowes case Trin. 3. tac Co. B. Davis case Hill 2. Car. Co. 9. Fotherlies case And accordingly divers have been granted And yet notwithstanding it seemes this course is usuall and Prohibitions not often granted at this day * Litt. Sect. 69. Plow 281. Broo. Executor 129. An Executor or Administrator may after the death of the deceased enter into the house where the deceased lived and where he
the goods of the deceased into his own possession give and sell them pay the debts of the deceased therewith release the debts due to the deceased and the like And a man may make himselfe such an executor by any such intermedling with the office and work of an executor as followeth 1. By proving the Will with the money of the dead but to prove another mans Will at my own charge will no more make me chargable as executor of mine own wrong then to buâ—y the deceased in a decent manner out of his own estate 2. By a seising gaining keeping and using of the goods of the deceased as a mans own especially if he convert them to his own use sell or otherwise dispose them and every colour of title will not help in this case for if a man make a Deed of gift of all his goods and chattels to another and dyeth intestate and this in truth is fraudulent and in trust and the Donee after the death of the Donor doth dispose of these goods and chattels as his own in this case and by this meanes he shall be esteemed as executor of his own wrong And yet if the Deed of gift be bona fide in satisfaction of a just debt and the goods be no more then the debt it may be otherwise but if the goods be much more then the debt there it seemes he shall be charged so for the overplus and that whether he have them in possession or not and so was the opinion of Iustice Jones at Gloucest Assises 9. Car. If the Ordinary grant Letters ad colligendum vendendum the goods of the deceased that are like to perish and I S to whom the Letters are made under colour thereof doth take and sell the goods hereby he may make himselfe chargable as executor of his own wrong for the Ordinary hath no such power himselfe and therefore he may not give that power to another If a man that is next of kin procure a Beggâ—r or a stranger to take out an administration and then to make him Stat. 43. â—â—â—z cap. 8. a Deed of gift of all the goods for a small matter he may bee thus charged for the overplus of the worth of the goods more then Plich 7. Ia. Co. B. per. ch Iustice he gave So if a Debtor procure such an administration to bee taken out and then get a Release of his debt from the administrator this may make him chargable as executor of his own wrong for so much as his debt doth come unto And yet a man may take away his own goods that were in the hands of the deceased without danger And every having and possession of the goods of the deceased will not make a man executor of his own wrong * Trin. 17. Iac. per chiefe Iust For if a man dye in my house and have goods there and I keep them untill I can be well discharged of them this will not make me chargable as Executor of mine own wrong * Coo. 5. 34. Kelw. 63. So if I do only lay up the goods of the deceased to preserve them in safety for him that shall have right to them this will make me no more chargable then if I take an Inventary of all the goods of the deceased So if another man take the goods of the deceased and sell them to me or give them to me howsoever this will make him chargable as Executor of his own wrong yet this will not make me chargable so Neither will every disposition of the goods of the deceased make a man Executor of his Kelw. 63. 52. 33 H. 6. 31. 32 H 6. 6 Dyer 167. Coo. 5. 34. 20 Ed. 4. 17. Fitz. Executors 122. own wrong for if a man sel some of the goods of the deceased where there is need to help forward a decent Funerall of the body of the deceased this is no such disposition as to make a man chargable thus So if I deliver the wife of the deceased her necessary wearing apparell or if I be wife to the deceased and take it my selfe So where I take any of the deceaseds goods into my hands by mistake supposing them to be mine own or under colour of title as when I have a good Deed of gift or sale of them without any fraud or covin or under a good authority as when I take them upon a warrant from the Sheriffe that hath processe out of the Exchequer to take them or as a Trespassor only as when I kill or otherwise abuse the cattell such an intermedling with the goods of the deceased will not make a man chargable as Executor of his owne wrong neither may I so bee charged in these cases The third way by which a man may make himself chargable as Executor of his own wrong is by delivering of the goods of the deceased to Creditors in satisfaction of their debts or by selling any See the 〈◊〉 before of the goods of the deceased to pay the debts of the deceased and paying the same with the money made thereof but to pay the deceaseds debt with a mans own money will not make him chargable so The fourth way by which a man may make himselfe so chargable is by receiving any of the debts due to the deceased Dyer 166. The fifth way by which a man may make himself chargable so is by releasing any debts or duties due to the deceased The sixth way by delivering any Legacies given by the deceased in kind Dyer 166. or by paying any Legacies except it be with a mans own money The seventh way by taking a mans Legacy given to him before the Executor have accepted of the Executorship and assented to the Legacy The eighth way by sueing as Executor to the deceased for any debt due to the deceased And the ninth way by taking upon him to sell the lands of the deceased as his Executor In all these cases and by all these and such like meanes a man may make himselfe an Executor of his own wrong So that if an Executor after he Dyer 105. hath legally waived the Executorship or an Administrator after his Administration is repealed and revoked intermeddle with the estate in any such manner he may bee charged as Executor of his own wrong And if a woman take more of her wearing Dyer 166. 33 H. 6. 31. apparrell then is necessary and convenient for one of her ranke and condition without Legacy of the husband and licence of the Executor shee may bee charged thus And if a man under colour of an Administration that is not good Dyer 255. 166. Coo. 5. 34. 9. 39. or of a Commission ad colligendum bona defuncti that is not good or of a Will when in truth there is none at all or no good Will doe take upon him to intermeddle with the goods and to dispose of the estate in manner as aforesaid by this meanes he may make himselfe chargeable
is Iudge of that Peculiar or if the goods be within two Peculiars then before the Ordinary of the Diocesse wherein these two Peculiars lye But if there Sâ—inb part 6. Sect. 11. be bona notabilia in the case viz That the Testator have goods or chattels at the time of his death of the value of 5l or more lying in two or more â—ounties or have good debts upon Especialties as some say for otherwise they follow the person or have any Especialties as other â—ay lying in other Counties for debt so that there be of goods and chattels or good debts to the value of 5l in any other Diocesse then that wherein the Testator led his life and dyed then the Probate doth belong to the Archbishop of that Diocesse wherein it is unlesse the Ordinary of the same Diocesse have the Probate by composition between him and the Metropolitan for otherwise there must be severall Probates for the goods in every Diocesse as anciently was used in these cases But if a man die in his journey in another Diocesse and have more then 5 l. goods about him this shall not be said to be bona notabila but the Will may be proved before the Ordinary of the place where the deceased lived and his estate doth he And except Stat. 23 H. 8. cap. 9. it be in cases where men have bona notabilia the Officers of the Courts of the Metropolitans are not to cite men out of their own Diocesse and to discover this matter it is the duty of the Ordinary of the Diocesse when any man comes to prove a Will to give him an Oath and examine him whether he know of or doe believe there are any goods to the value of 5 l. lying in any other Diocesse at the time of the Testators death and if he hear of any to dismisse them to the Prerogative Court and to give them notice of it Also in some places the Lords of Mannors have the Probate of all the Wills within their Mannor by custome of the place Fitz. Testament 4. 5. and in those places it must be proved there and not elsewhere And when an Executor is bound to prove the Will before the Ordinary as before the Ordinary may give him what time to doe it hee doth think fit and when he doth prove it the Ordinary doth take an Oath of him to administer the goods faithfully and to take bond of him also if he please but this some doe omit And now because lands are oftentimes conveyed by the severall kinds of assurance aforesaid unto one man but to the use of another and to the intent that another shall take the profits of it we must of necessity hear somewhat of the learning of Uses and then wee shall have done CHAP. XXIIII Of a Vse A Use is the profit or benefit of Lands or Tenements or as 1. Vse Quid. Coo. 1. 125. 122. See the Addition to Iust Dodr. Treatise Coo. super Litt. 271. 272. others define it The equity and honesty to hold the land in conscientia boni viri Or as others define it more fully It is a trust or confidence reposed in some other which is not issuing out of the land but as a thing colatterall annexed in privity to the estate of the land and to the person touching the land so that he for whom he is trusted shall take the profit of the land and the Terre-Tenant shall dispose of it according to his direction As for an example If a Feoffment be made to I S and his heires to the use profit or behoofe of W S and his heires in this case heretofore I S had the estate and property of the land but W S had and was to have the profits in honesty and equity So if one agree with W S for a piece of land for 20 l. and pay him the money but hath no assurance of the land yet the equity and honesty to have this land is in him that hath contracted and paid his money for it and this trust was called the use of the land and hence came the course in conveyances to set down in the Habendum to whose use as Habendum to A and his heires to the use of A and his heires And he for whom this trust is and that ought to have the profit of the land by conveyance as aforesaid is called cestuy que use There is a use also of goods and chattels which is properly called a Trust or confidence Cestuy que use Trust or confidence Quid. for one may have such things to the use of another A Use is either expresse i. e. when the use or intent is openly declared and expressed between the parties upon the making of the 2. Quotupleâ— Doct. St. 95 Perk. Sect. 533. Coo. 2. 58. 9. 11. Dyer â—8 146. estate of land whereunto the use is annexed as when a Feoffment is made of land to I S and his heires to the use of W S and the heirs of or heires males of the body of the said W S or to the end and intent that W S and his heires or W S and the heires of his body shall take the profits of it or the like or when I covenant to stand seased of the land to the use of my wife for life and after of my eldest sonne and the heires of his body or the like Or it is implyed i. e. when the use is not declared upon the agreement between the parties but is left to the construction and made by the operation of Law as when a man seised of land makes a Feoffment in Fee or doth levie a fine or suffer a common Recovery of it to another without any consideration and it is not agreed nor declared to what use or intent it shall be this by construction of Law shall be to the use of the Feoffer Conusor or Recoveree But if there be any consideration of money or other thing paid or given or any rent or Tenure reserved then by construction of Law it shall be to the use of the Feoffee Conusee or Recoveror for otherwise the Law presumeth that the intent of him that did part with the land was so viz. that the other should have the property of the land to his use and that he himselfe should take the profits of it So when one doth bargaine and sell his land for money to another and no use is expressed in this case the Law doth say it shall be to the use of the Bargainee and his heires A use also is either in esse and that in Coo. 1. 121. possession reversion or remainder as when a Feoffment is made to I S to the use of I W and his heirs or to the use of I W and after to the use of I D and the heires males of his body and after to the use of S T and his heires for ever Or it is in posse or in contingency as when by possibillity
will adjudge this to be to the use of the wife and her heirs but if they sell her land for money and after levy a Fine thereof to the Vendee this shall be to the use of the Vendee and his heirs And if a man be seised of land of the part of his Mother and without any consideration make a Feoffment in Fee of it this shall be said to be to his use in the same nature he had it before So if two Jointenants be of land the one in Fee-simple and the other but for life and they without any consideration levy a Fine of it and make no declaration of use the use shall be to them of the same estate as they had before in the land So if â—â— tenant for life of land and B in reversion or remainder levy a Fine of this land generally this shall be to the use of A for life and to the use of B in Fee afterwards as it was before So if A be seised in Fee of an Acre of ground and he and B joyne together and levie a Fine of it to another without any consideration this shall be to the use of A and his heirs only If one make a giâ—t in taile or Lease for life or yeares albeit Perk. Sect. 533. it be without any consideration of Fine or Rent yet the Law will adjudge the use in the Donee or Lessee and not in the Donor or Lessor If one at this day by Deed indented bargain and sell his land Plow 539. Coo. 1 87. â—et see Litt. Broo. 536. Câ—ompt â—â—r â—7 2â— H. â— 6. Co. â— 110. to another for money and doth limit no estate but the Deed is Habendum to him only and not Habendum to him and his heirs or to him and the heires of his body or to him for life howsoever in this case before the Statute of uses was made it was other wise yet now the common received opinion is that by this there doth passe onely an estate for life and not a Fee-simple If a Feoffment be made to I S and his heires to the use of I D without any more words by this limitation I D hath only an Coo. super Litt. 42. Dyer 169. estate for life So if a Feoffment be made to I S and his heires to the use of I D for ever without saying and his heires hereby I D hath only as estate for life And so of other uses the construction shall be according to the rules of Law If a use be limited to I S and his heires untill A shall come from beyond the Sea and attaine his full age or dye in this case Pasche 3◠〈◊〉 B. R. the Lord Mordaâ—â— case if he come from beyond Sea attaine his full age or dye the use shall cease If one covenant to stand seised to the use of A his eldest sonne Hill 17. â—ac B. R. â—â— wayeâ— caâ—e and the heires males of his body and after to the use of B his second sonne in tail in the same manner or according to the limitation to A by this B hath an estate tail to him and the heires males of his body If a Feoffment in Fee be made to the use of a man and his wife Coo. super Litt. 28. for their lives and after to the use of their next issue male to bee begotten in Tail and after to the use of the husband and wife and of the heires of their two bodies begotten they having no issue male then by this the husband and wife are tenants in speciall Tail executed and after they have issue male they are tenants for life the remainder to the sonne in Tail the remainder to them in speciall Tail If one make a Feoffment to the use of himself for life and after his decease to the use of Alice whom he doth intend to marry Dyer 300. untill the issue he shall beget of her shall be of the age of 21 years and after the issue cometh to that age then to the use of the wife during her widdowhood and the husband dye without issue by this the wife shall have an estate at least during her widdowhood If I covenant with B that in consideration he will marry my daughter that from the time of the marriage I will stand seised to Coo. 1. the use of my self for life and after to the use of C a stranger and the heirs males of his body and after to the use of B and my daughter and the heirs of their two bodies in this case albeit the use limited to C the stranger be void yet it seems B and my daughter shall not have the land till the death of C without issue but that my heirs shall have it till that time If I covenant with B to stand seised to the use of my selfe for life and after my death to the use of C a stranger for the term of 20 years Coo. 1. 155. and after the end of the term to the use of my sonne in tail in this case the use limited to C is voyd and my sonne after my death shall have the land But if the words of the covenant be and after the end of 20 yeares insteed of and after the end of the term my sonne shall not have the land untill the 20 yeares be expired See more in exposition of Deeds Chap. 5. All such uses as are not within nor executed by the Statute of 8. Where and how Vâ—es of Land â—ay be extinguished and destroyed or suspended or noâ— And where the ancient Vses shal be revived by the entry of the Feoffees or not 27 H. 8. but remain at the Common-Law may be destroyed discontinued Co. 1. Chudleighs caâ—e or suspended as uses before the Statute might have been And therefore contingent uses may be extinguished or suspended at this day As it a man seised of land in Fee have three sonnes A B and C and he make a Feoffment of his land to divers Feoffees to the use of them and their heires during the life of A and after to the use of the first sonne that A shall beget and the heirs males of the body of such first sonne or if a Feoffment be made to the use of a man and the wife that he shall marry or the like if in these cases the Feoffees make a Feoffment over before the contingent uses happen to be in esse as before A have any sonne or the man take a wife c. albeit it be to one that have notice of these uses yet the uses are destroyed for ever and the Feoffees cannot enter and revive them contrary to their own Feoffment And if in these cases the Feoffees before the contingent remainder vest be disseised hereby the uses are suspended but then by the Reentry of the Feoffees the ancient uses will be revived again And therefore if the Feoffees release to the Disseisor and so barr themselves of their entry the uses
in the matter there perhaps the Suit may hold against them both and the buyer may be forced to restore the thing it selfe * 11 Ed. 4. 8. And yet if A enter into a Statute to B and C to the use of B and A having notice of this use doth get a release from C in this case it seemes B must have his whole remedy against C and shall have no remedy against A. 4. If the Trustor or Cestuy que use in these cases commit Felony c. so that the things if he had Broo. Feofment al use 3â— the property of them were forfeit in this case it seemes that neither they nor their Heires Executors c. nor yet the Lord c shall have them but the Trustees shall keep them for ever 5. If the Cestuy que use or Trustors dye and appoint how the 15 H. 7. 12. Cromp. Iur. 54. same things shall be disposed of the Trustees are bound to see it done as if the Trustor appoint it shall pay his debts or provide Legacyes the parties trusted must take care it be so imployed and in this case the Debtees and Legatees also may compell the Trustees in Chancery 6. In all these cases regularly Dyer 49. the thing whereof the trust is is in equity at the disposing of him that is the Cestuy que use unlesse he do otherwise appoint it and if at his death he make no disposition thereof it shall goe to his Heire Executor c. 7. In all these â—H 7. 11. cases the Trustees shall have their reasonable allowance in Chancery for whatsoever they have laid out about the land c. in Suites or otherwise for the profit of the Trustor Out of all which may appeare how dangerous it is for a man to meddle with any lands goods or chattels so conveyed or setled in trust for the Cestuy que use or Trustors have no property in the thing and therefore they cannot sell or give it and the Trustee hath it but to anothers use And it is not safe therefore to deale with either of them alone nor yet indeed safe to deale at all in these cases unlesse the buyer may have the consent sale and assurance or the Release c. of the Trustors and Trustees altogether And if there bee any woman Covert or Infant within the Trust it is most of all dangerous And if goods or chattels be given to or to the use of a Feme Covert or Infant 7 Ed. 4. 14. Fitz. Subpena 5. and certaine friends are trusted therewith if they doe sell or give away these goods or chattels contrary to the Trust they must be sure to answer it if therefore they sell them let them see that the money made thereof be as beneficiall and be bestowed for the wife or children for it seemes it is not sufficient in this case that the money made thereof bee paid to them FINIS The Table Acceptance WHere it will bind or not chap. 14. numb 5. 9. chap. 21. numb 8. Acquittance What it is and when it must be made chap. 19. numb 10. 11. Administrator See tit Executor Administration Where it is grantable and by whom to whom it must be granted chap. 23. numb 22. 23. 34. When it is revocable numb 35. Agreement and Disagreement See Deed chap. 17. numb 5. Alien What Assurances he may make and what Acts he may doe chap. 12. numb 4. chap. 23. numb 4. Apportionment Where it shall be chap. 6. numb 12. Assent Where it is needfull to make a Legacy perfect and when it is good chap. 23. numb 15. 16. Assets What shall bee Assets in the hands of an Executor chap. 23. numb 14. 39. Assignes How they may charge others or bee charged themselves chap. 7. numb 6. 8. chap. 8. numb 12. chap. 16. numb 2. Attainted persons What Assurances they may make and what Acts they may doe chap. 2. numb 6. chap. 23. numb 4. chap. 12. numb 4. chap. 9. numb 4. Atturnment What it is and how many kinds there are chap. 13. numb 1. The effect of it numb 3. When it is requisite numb 4. By whom and to whom it must be made numb 5. 6. when and how it must be done num 5. 6. chap. 9. numb 4. How it shall be taken chap. 13. numb 10. 11. Averment Where it shall be allowed chap. 3. numb 4. chap. 10. numb 5. chap. 14. numb 4. chap. 23. numb 5. 6. chap. 24. numb 6. 5. 4. Bargaine and Sale What it is and how many kinds there are chap. 10. numb 1. 2. the effect of it numb 3. When it is good numb 4. 5. How it shall be taken numb 6. 7. Bastard What Assurance he may make chap. 2. numb 6. chap. 12. numb 4. Bona Notabilia What this is See chap. 23. numb 21. Claym or Entrie Where it is necessary chap. 6. Numb 13. By whom it must be made chap. 2. numb 12. Codicill What it is chap. 23. numb 1. Common Recoverie What it is and how many kinds there be chap. 3. numb 1. 2. The manner of suffering it numb 3. The use of it numb 4. When it is good and who shall bee barred by it numb 5. how it may bee avoided numb 7. Tenants in common See Joint-tenants Condition What it is and how many kinds there are chap. 6. numb 1. 2. chap. 16. 2. what things may be done on condition chap. 6. numb 3. chap. 23. numb 7. what words doe make a condition chap. 6. numb 5. what is a good condition chap. 6. numb 5. 7. Expounded and how it must bee performed chap. 6. numb 8. 9 10. Who shall have advantage of it chap. 6. numb 12. Discharged chap. 6. numb 15. Condition of Obligation See Obligation Confirmation What it is and how many kinds there are chap. 18. numb 1. 2. The effect of it numb 3. 7. where it is needfull numb 4. when it is good numb 5. 6. How it shall enure numb 7. Corporation What assurances they may make and what Acts they may doe chap. 2. numb 6. chap. 12. numb 4. chap. 9. numb 4. Covenant What it is and how many kinds there are chap. 7. numb 1. 2. what shall be said a good Covenant numb 4. chap. 5. numb 10. chap. 6. numb 5. 7. chap. 14. numb 4. chap. 23. numb 4. Expounded chap. 7. numb 6. when it shall bee said to bee broken chap. 7. numb 7. who may take advantage of it chap. 7. numb 8. discharged chap. 7. numb 10. chap. 17. numb 3. Covin Where it doth hurt an Assurance or marre an Act done chap. 2. numb 6. chap. 3. numb 4. 7. chap. 4. numb 5. chap. 23. numb 27. Deed. What it is and how many kinds there are chap. 4. numb 1. 2 3. when it is good numb 5. when it is good in part and void in part numb 7. chap. 15. numb 4. how a good Deed may become void ch 4. numb 6. Expounded ch 5. ch 2. numb 7. ch 16. num 5.
be that I S shall serve me in all my honest and Perk. Sect. 772. 6 â—d 4. 2. To serve lawfull commands or that I S shall be a good and honest servant to me one yeare in the first case if I command him nothing the condition is not broken albeit he never tender his service but in the last case it seemes he is to tender his service to me or otherwise the condition will be broken But if I refuse his service when it is tendred or hee die within the time the obligation is discharged And yet if hee depaâ—t away within the time the condition is broken If the condition be that A shall marry B by a day and before 4 〈◊〉 7. 〈◊〉 Perk. 7â—â— To marry a woman the day the obligor himselfe doth marry her in this case the condition is broken But if the obligee marry her before the day the obligation is discharged If the condition be to performe the covenantâ— and paiments of a Deed and the deed doth containe a feoffment and this is on condition Briscoes case â—â—in 〈◊〉 Ia. c B. 〈◊〉 To performe covenants that if the feoffor pay such a summe of money he shall re-enter and he doth not pay it in this case this non-paiment is no breach of the condition But if A let land by Indenture to B for yeares rendring rent and B doth bind himselfe in an obligation Adâ—udged Griffin Scots case 5. Iac. B. R with condition to performe all the covenants contained in the Indenture and the rent is unpaid this is a breach of the condition and cause of forfeiture of the obligation If the condition be for the saâ—e keeping of prisoners and one Curia Trin 37. Eliz. To keep Prisoneâ—â— doth escape that is in execution and in prison under colour of an execution or the like but in truth and in judgement of law is no prisoner this escape is no breach of the condition See more in â—ondition at Numb 10. If the condition of an obligation consist of two parts in the disjunctive or be to do one of two things before or at a day certain 11. By whaâ— meanes and when an Obligation good in his original creation doth or may become void bee discharged or gone by matter ex post facto Or not â—oo super Lâ—â—t 207. and both the things are possible at the time of the making of the obligation and before the time of performance one of the things is become impossible to be done by the act of God or by the act of the obligee himself in this case the obligation is discharged for ever And therefore if the condition be That if the obligor shall sell away his wives land if then he shall either in his Coo. 5. 12. 25 H. 7. 2. life time purchase to his wife and her heires and assignes land of as good right and value as the money by him received or had by or upon the said sale shall amount unto or else do and shall leave unto her the said I as Executrix by legacy or otherwise as much money as shall bee by him received upon such sale That then c. and the obligor doth sell his wives land and then his wife doth die before him so that he cannot leave her the money in this case the obligation is discharged and the husband is not bound to purchase land to her and her heires So if the condition be that if I S do not prove the suggestion of a Bill depending in the Court of requests before the utas of Hillary that then he shall pay 20l Dyer 262. 15 H 7. 4. 4 H. 7. 4. Agree 9. Iac. 〈◊〉 Bathurst case c. and I S die before the utas hereby the obligation is discharged for ever and he is not bound to pay the 20l. So if the condition be that if the obligor appeare in the Kings Bench in Eastern Terme or pay 20l. to the obligee at Michaelmas and the obligor die before Easter Terme hereby the obligation is discharged but if he do not appeare in Easter Terme and out-live the Term and die after then it seems the 20l. must be paid at Michaelmas or the obligation is forfeit So if the condition be that the obligor shall marry A before Easter or pay 20l. to the obligee at Michaelmas and A die or become madd before Easter or the obligee marry A himselfe and the marriage doth continue between them untill Easter be past in all these cases the obligation is discharged for ever But when the thing is become impossible by the act or laches of the obligor the law is otherwise And therefore if the condition be that A shall marry with B before Easter or that the obligor shall pay unto the obligee 20l. at Michaelmas and the obligor himselfe marry with B and the marriage doth continue untill after Easter hereby the obligation is not discharged So if the condition be to deliver up an obligation before Easter or give a release at Michaelmas and the obligor doth loose the oblgation or the obligation is burnt hereby the obligation is not discharged for if he doth not make the release at Michaelmas hee doth forfeit the obligation If the condition of an obligation consist of one part only or be 8 Ed. 4. 22. Coo. 5. 22. Perk Sect. 7â—9 767. â—4 H. 74. 22 Ed. 〈◊〉 to do one thing at a time certain and that thing at the time of the obligation maâ—e is possible to be done but afterwards and before the â—ime when it is to be perâ—ormed it doth become impossible by the act of God or the act of the obligee in this case also the obligation is gone and discharged for ever And therefore if the condition be to appear in person such a day in such a Court and before the day the obligor die or at the day the water doth arise so high that he cannot travaile to the place without perill of life in these cases the obligation is discharged So if the condition be that A shall marry B before Easter and before the time A or B die or become madd or the obligee marry B and the marriage doth continue untill after the day in all these cases the obligation is discharged But if the thing become impossible by the act of the obligor contra And therefore if the condition be that the obligor shall appeare such a day and before and at the day hee is imprisoned through some default of his own so that he cannot appeare this will not excuse him * So held in the Exchequer 3. Cur. no more then in case where hee is so sick that he cannot appeare without perill of his life So if the condition be that B shall marry C before Easter and the obligor himselfe marry her and the marriage doth continue untill after the time in this case the obligation is forfeit * 〈◊〉 Co. B Hâ—â—
7. Eâ—rz So if the condition give the obligor time all his life time to do the thing the obligation is not discharged by his death but in this case he must do it during his life time at his perill If the condition be that the obligor shall deliver to the obligee Adâ—â—â—â—â—â— 37. 〈◊〉 Co. B. 〈…〉 versus â—wie an obligation or such a release as the counsell oâ— the obligee shaâ—â— devise before Michaelmas and the counsell of the obligee devâ—â— no release before Michaelmas hereby the obligation is gone for ever If the obligation depend upon or be necessary to some other Bâ—oo Oblig 〈◊〉 88. 2â— 4. H. 7. 6. deed and that deed become void in this case the obligation is become void also as if the condition of the obligation be to perâ—orm the Covenants of an Indenture and afterwards the covenants be discharged or become void by this meanes the obligation is discharged and gone for ever And if one make a lease for yeares rendring rent and the lessee enter into an obligation with condition to pay the rent to the lessoâ— and after it â—all out so that the lessee is evicted out of the land by an elder title whereby the rent in law is gone in this case and by this meanes the obligation is discharged and gone also Buâ— if the eviction be but of a part of the land contra If an obligation bee made to me and delivered â—s I S to my Coo. 5. 119. use and when it is tendred to me I do refuse it and disagree to it hereby it is become void and cannot afterwards be made good againe So if an obligation bee made to my wife and I disagree to it hereby it is become void By a Release made from the Obligee to the Obligor or to one â—â—t Baâ—â— 37 of the Obligors if there be more then one the obligation may be discharged And therefore if an Obligation be made to me with condition to pay money and I by my Deed release it or acknowledge my selfe satisfied the debt albeit I receive none of it or that I receive but part of it in full satisfaction of the debt by this the obligation is discharged for ever If the Obligee make the Obligor or one of the Obligors or Bâ—oo Oblig 61. Coo. 8. 136. 8 Ed. 〈◊〉 3 21 Ed. 4. 2. 11 H. 7. 4. all the Obligors his Executor or his Executors hereby the obligation is discharged for ever But the granting of Letters of Administration to one or more of the Obligors is no discharge of the obligation And if the Obligor make the Obligee his Executor this is no discharge of the obligation If the Obligee be a woman and take the Obligor to husband Broo. Oblig 61. hereby the obligation is discharged If the condition be to enfeoffe K. S a woman before such a Fitz. Barre 133. time and before the day the Obligor doth marry the woman this doth not discharge the obligation If the condition be to serve me seven years and within the time Dyer 329. I licence him to depart it seemes that hereby the obligation is discharged And yet if the condition be to stand to an Award and it is awarded that one of the parties shall pay 5 l. a yeare for seven years towards the education of I S and I S die within the seven years the obligation is not discharged by his death but the money must be paid during the time notwithstanding If the condition bee to doe two things or stand upon divers Dyer 371. points and the Obligee supposing the breach of one of them doth sue the Obligor and the issue being joyned upon that point it is sound against the Plaintiffe and he is barred hereby the whole obligation is discharged and so long as that Iudgement is in force he can never sue the obligation upon any other point within the condition If the condition be to satisfie me for goods I have delivered to I S Pitâ— Barre 64. if they be lost and afterwards they be lost and I sue I S and have him in Execution for them by this the obligation is not discharged but perhaps when I have satisfaction of I S being in Execution for the goods the obligation may be gone And in all other Cases by which a Deed in generall may become void by matter ex post facto as by Rasure or the like an obligation may become void CAP. XXII Of a Defeasance THis in a large sence doth sometimes signifie a condition annexed Dâ—feasanâ—e Qâ—id to an estate and sometimes the condition of an obligation made with and annexed to the Obligation at the time of making thereof But it is more peculiarly and properly applyed to such conditionall instruments as are made in Defeasance and avoidance of Statutes and Reconisances at the time of enâ—ring into the same Statutes or Recognisances and to such conditionall Instruments as are made in Defeasance of Statutes Obligations and the like after the time of the same Statutes entred into and Obligations c. made And it is therefore thus defined A Deseasance is a condition relating to a Dâ—ed as to an Obligation Recognisance Statute or the like which being perâ—ormed by the Obligor or Recognisor the Act is disabled and made void as if it had never been done which differeth from a condition only in this that this is alwayes made at the same time and annexed to or inserted in the same Deed but that is alwayes made in a Deed by it self and for the most part made after the Deed whereunto it hath relation There is no Inheritance Executory as Rents Annuities Conditions 2. Where and in what cases a Deâ—easance may be and what things may be defeated and avoided thereby and where and what not Warranties Covenants and such like but may by a Defeasance made Coo. super â—itt 236 237 1. 111 113. Plow 137. 193. 21 11. 7. 23. Bâ—oo Deâ—easance in toto with the mutuall consent of all those which were parties to the creation thereof at the same or at any time after be annulled discharged and defeated And so is the Law of Statutes Recognisances Obligations and the like yet so as in all these cases regularly the Defeasance must be made codâ—m modo as the thing to be defeated was and is created viz. if the one be by Deed the other must be so also for it is a rule that in all cases when any Executory thing is created by a Deed that the same thing by the consent of all persons which were parties to the creation of it may be by their Deed defeated and annulled and therefore that Wanranties Recognisances Rents Charges Annuities Covenants Leases for years Uses at Common-Law and such like may by a Defeasance made with the mutuall consent of all those that were parties to the creation of it by Deed be discharged and avoided Nihil â—st tam conveniens naturali aquitati quà m
chargable for so much as is committed to him as the testator or intestate himselfe for this cause the Executor is said to represent the person of the Testator for as to the estate committed to his trust he may charge others and be charged himself sue and be sued as the Testator himselfe might And the estate he hath by his Executorship is said to be in him to the use of the Testator and in his right and that he doth in the disposition of his estate is said to be in the right and to the use of the Testator also And the Administrator hath the same power and property over and in the goods and chattels the same remedy by Suit and so farr forth shall be charged as the Executor for they differ not in nature but in name only And yet the Administrator is but the Ordinaries deputy and he may revoke the Administration or call the Administrator to an account Swinb 12. Dâ—er 143. Coo. super Littl. 112. Litt. Sect. 168. Coo. 〈◊〉 â—1 A Testament is of that nature that it doth much differ from 3. The nature and effect of a Testament and of a Codicill other acts and deeds that men doe and execute in their life times for albeit it be made sealed and published in never so solemn a manner yet it hath no life nor vertue in it untill the testators death for it is a Maxime in law Omne Testamentum morte consummatunâ— est Et voluntas ambulatoria usque aâ— extremum vitae exitum it is therefore resembled untill death to the interlocutory sentence and after death to the definitive sentence of a Iudge And hence it is said Sed legum servandafides suprema voluntas Quod mandat fieriqu jubet parere necesse est a 〈◊〉 〈◊〉 〈◊〉 Sect. 30â— And for this cause a man may alter or make void his will at his pleasure and he may make as many new Wills and Testaments as he will and there is no meanes under the Sun to barre a man of this liberty b Lin. Sect. 168. Perk. Sect. â—7â— And the latter Testament doth alwaies revoke and overthrow the former but otherwise it is of a codicill c Swâ—â—b 13. 14. for a man may make as many of these as he will and make no Testament at all d Broo. Testament 20. or if he make a Testament he may afterwards make as many codiciâ—s as he will and one of them will not overthrow the other for in the first case they must be all annexed to the letters of administration and the Administrator must perform them and in the latter case they must be all annexed to the Testament and the Executor must take care to performe them e Plow 343 â—44 A Testament therefore is said to have three degrees 1. An Inception which is the making of it 2. A Progression which is the publication of it 3. A Consummation which is the death of the testator f Coo. super Litt. 112. In Grants therefore the first is of greatest force but in Testaments the last is of greatest force But when a Testament is perfect by the death of the party it doth as effectually give and transferre estates and alter the property of lands and goods as acts executed by deed in the life time of the parties 〈◊〉 for hereby discents of lands are prevented and a man may make estates in Fee-simple â—â—itt Sect. 1â—7 168. Fee-taile for life or yeares of lands tenements rents reversions or services as effectually as by deed and these estates also will be good without any Livery of Seisin or Attournement And hereby also rents and power to distraine for them may be reserved conditions created and annexed to eâ—â—ates or things devised 〈◊〉 And therefore they that take by devises of lands are said to take 〈◊〉 Perk. Secâ— 505. in the nature purchasors 〈◊〉 And if therefore a tenant in taile make a Feoffment to the use of himselfe in Fee and after devise the same 〈◊〉 Dyer 221. land to his wife in fee and die the sonne is not remitted though the Father die seised for the devise doth prevent the discent To the making of every good Testament these things are requisite Coo. 6. 23. 4. What shall â—e said a good and a sufficient Testament Or not 1. That the Testator be a person able to make a Testament and not disabled for any speciall cause either in respect of his person mind or condition or in respect of the thing whereof the Testament is to be made And for this it must be knowne k Sâ—â—t 32. 34 H. 8. c. 5. Coo 4. 51. Broo. Testament 13. That a woman that hath a husband cannot make a Testament of her land First in respect of the person that doth make it and the thing whereof it is made And what Persons may make a Testament And of what things or not And how or goods except it be in some speciall cases for of her lands shee can make no Testament with or without her husbands consent l 〈◊〉 H. 7. 14. Perk. Sect. â—0â— Fitz. Executor 〈◊〉 of the goods and chattels she hath as Executrix to any other she may make an Executor without her husbands consent for if she do not so the Administration of them must be granted to the next of kin to the deceased Testator and shall not goe to the husband m Plow 526. Fitz. Executor 109. but of them she can make no devise with or without her husbands leave for they are not devisable and if shee doe devise them the devise is void And of the things due to the wife whereof she was not possessed during the marriage as things in action and the like it seemes she may make her Testament at least she may make her husband Executor n 12 H. 〈◊〉 24. 18 Ed. 4. 11. Perk. sect 501. Fit Executor 5. 28. 109. Broo Testament 〈◊〉 of her Paraphonalia viz. A Fame Covert her necessary wearing apparell being that which is fit for one of her rank some say shee may make a Testament without her husbands leave others doubt of this howbeit all agree that shee and not his Executor shall have this after her husbands death and that the husband cannot give it away from her And of the goods and chattels her husband hath either by her or otherwise shee may not make a Testament without the licence and consent of her husband first had so to do But with his leave and consent she may make a Testament of his goods and make him her Executor if shee will And it is said also that if shee do make a Testament of his goods in truth without his leave and consent and he after her death suffer the Will to bee proved and deliver the goods accordingly in this case the Testament is good And yet if the husband give his wife leave to make a Testament of his goods and she do so he may
revoke the same at any time in her life time or after her death before the Will be proved But a woman after contract with any man may before the marriage make a Testament aswell as any other and is not at all disabled hereby An Infant untill he be of the age of 21 yeares can make no An Infant Testament of his lands by the Statutes of 32. 34. H. 8 But Sâ—ar 32. Ed. 34. H. 8. cap. 5. Perk. Sect. 503. â—04 Br. Custome â—0 Swâ—â— â—7 38. by speciall custome in some places where land is devisable by custome he may devise it sooner And of his goods and chattels if he bee a boy he may make a Testament at fourteene yeares of age and not before and if a maid at twelve yeares of age and not before and then they may do it without and against the consent of their Tutor Father or Guardian o Coo. super Litt. 89 And yet some say an Infant cannot make a Testament of his goods and chattels untill he he be eighteene yeares of age p Perk. Sect. 503. 504. 24. Swinb 37. 40. A madd or lunatick person during the time of his insanity of mind cannot make a Testament of A Lunaticke person lands or goods but such a one as hath his lucida intervaâ—la cleere or calme intermissions may during the time of such quietnesse and freedom of mind make his Testament and it will bee good So also an Idiote i. such a one as cannot number twenty or tell An Idiot what age he is or the like cannot make a Testament or dispose of his lands or goods and albeit he doe make a wise reasonable and Swinb 39. 40. sensible Testament yet is the Testament void But such a one as is of a meane understanding only that hath grossum caput and is of the middle sort between a wise man and a foole is not prohibited to make a Testament So also an old man that by reason of his great age is childish againe or so forgetfull that he doth forget An old man Swinb 42. his own name cannot make a Testament for a Testament made by such a one is void So also it seemes a drunken man that is so excessively drunk that he is deprived of the use of reason and understanding during that time may not make a Testament for it is requisite when the Testator doth make his will that he be of sound and perfect memory q Coo. 6. 23. Hill 3. Car. per the Lord keeper in the Chancery i. e. that he have a reasonable memory and understanding to dispose of his estate with reason r Swinb 53. A man that is both deafe and dumb and that is so by nature cannot make A deafe and dumb man a Testament But a man that is so by accident may by writing or signes make a Testament And so may a man that is deafe or dumb by nature or accident And so also may a man that is blind s 〈◊〉 B. R. 7. Iac. An alien borne cannot make a Testament of lands or goods An alien A man that is entred into Religion cannot make a Testament t Stat. 5. 6 Ed. 6. c. 11. Swinb 54. A Traitor attainted from the time of the Treason committed can make A Traitor no Testament of his lands or goods for they are all forfeit to the King but after the time he hath a pardon from the King for his offence he may make a Testament of his lands or goods as another man A man that is attainted or convict of Felony cannot make a Testament of his lands or goods for they are forfeit but if a man Preâ—â—gativa Regis Plow 258 259. A Felon be only indicted and die before Attainder his Testament is good for his lands and goods both And if hee be indicted and will not answer upon his arraignment but standeth mute c. in this case his lands are not forfeit and therefore it seemes hee may make a Testament of them And if a man kill himselfe his Testament as to his goods and chattels is void but as to his lands is good Plow 261. A â—elo de se A man that is outlawed in a personall action cannot make a Testament of his goods and chattels so long as the outlawry doth continne Fitz. Dec. 16. An outlawed person in force but of his lands he may make a Testament The head or any of the members of a corporation may not make a Testament Fitz. Testament 1. A Corporation of the lands or goods they have in â—ommon for they shall goe in succession A Villaine cannot make a Testament of his lands A Villaine or goods after the Lord hath seised them But here note that howsoever the Testaments of Traitors Aliens Felons Out-lawed persons and Villaines be void as to the King or Lord that hath right to the lands or goods by forfeiture or otherwise yet it seemes the Testament is good against the Testator himself and all others but such persons only And here note further also By the civill law Swinb 155 c. See the Stat. 32. 34 H. 8. Perk. Sect. 496. also the Testaments of divers others as Excommunicate persons Hereticks Usurers Incestuous persons Sodomites Libellers and the like are void But by our law the Testaments of such persons at least as to their lands are good by the Statutes that do enable men to devise their lands But all other persons whatsoever male or female old or young lay or spirituall rich or poore at any time before their death whiles they are able to speak so distinctly or write so plainly as another may understand them and understand that they understand themselves may make Testaments of their lands goods and chattels and that albeit they have sworne to the contrary and none are restrained of this liberty but such as are before named * See more infra at Numb 7. Swin 9. 131. 324. 325. See more infra to this matter The second thing required to the making of a good Testament is Secondly in respect of the mind of him that doth make â—t that he that doth make it have at the time of the making of it Animum testandi 〈◊〉 a mind to dispose a firme resolution and advised determination to make a Testament otherwise the Testament will be void for it is the mind not the words of the Testator that doth give life to the Testament for if a man rashly unadvisedly incidently jestingly or boastingly and not seriously write or say that such a one shall be his Executor or have all his goods or that he will give to such a one such a thing this is no Testament nor to bee regarded And the mind of the Testator herein is to bee discovered by circumstances for if at the time hee bee sick or set himselfe seriously to make his Testament or require witnesses to beare witnesse of