condic ' suam deter ' nequaquam Brit. f. 143. As a Parson Vicar Archdeacon Prebend Chantry Priest c. may have an action of Waste and in the Writ it shall be said Ad exhaereditationem ecclesiae c ipsius B. or Praehendae ipsius A. F N B 55. d. 57 E. 2. 10 H. 7. 5. And the Parson c. that maketh a lease for life shall have a Consimili casu during the life of the lessee and a Writ of Entry ad Com. legem after his death or a Writ ad terminum qui praeteriit or a quod permittat in the debet and none can maintain any of these Writs but a Tenant in fee simple or fee tail F N B l. m. n. 20 H. 3. Jur. utr Temps E. 3. Jur. utr 141. 14 E. 3. ibid. 4. F N B. 50. 30 E. 3. 26. 21 E. 3. 11. Entry 10. F N B 206. fol. Reg. 237. 4 E. 4. 2. 8 E. 3. Entry 3. 7 E. 3. 54 55. And a Parson c. may receive Homage which Tenant for life cannot do Temps E. 1. Encumbent 19. Item a Parson e. shall have a Writ of Mesne and a Contra formam feoffmenti F N B. 49. l. 50. a. fo 341. b. But a parson cannot make a discontinuance for that should be to the prejudice of his successor to take away his entry and to drive him to a reall action Also if a parson c. make a Lease for years reserving a rent and dyeth the Lease is determined by his death as if Tenant for life had made a Lease no acceptance of the rent by the successor can make it good Also in a reall action a Parson Vicar Archdeacon c. shall have aid of the Parron and ordinary as Tenant for life shall have 20 E. 3. aid 30. 25 E. 3. 54. 8 E. 3. 45. 8 H. 6. 24. 11 H. 6. 9 6 E. 3. 45. 43. Ass p. 13. F.N.B. 129. So as it is evident that to many purposes a parson hath but in effect an Estate for life and to many a qualified fee simple but the entire fee and right is not in him and that is the reason that he cannot discontinue the fee simple that he hath not nor ever had for as it hath been said Omnis privatio presupponit habitum and for the same cause he cannot have a writ of right nor a writ of right in his nature as a writ of right for disclaimer of customes and services ne injustè vexes rationalibus divisis quo jure c. But here it appeareth by Littleton that such bodies politick or corporate as have a sole seisin and may have a writ of right for that the fee and right is in them albeit they cannot absolutely convey away their Lands c. without assent of others may make a discontinuance as a Bishop an Abbot a Dean a Master of an Hospital c. But this is to be understood where a Dean c. are solely seised of distinct possessions for if the body that is seised be aggregate of many as the Dean and Chapter Master and confrates c. then the Feoffment of the Dean or Master is so far from a discontinuance as it is a disseisin But at this day the Bishop Dean Master of an Hospital c. that have the fee and right in them cannot discontinue neither can they or any Parson Vicar Arch-Deacon Prebendary or any other having any Ecclesiastical living with assent of Dean and Chapter Patron and Ordinary or the consent of any others make any Lease gift granr or Conveyance Estate Charge or Incumbrance to binde his successors or others then for term of 21 years or three lives in possession whereupon the accustomed rent or more shall be reserved Vide S. 528. 593. c. 1 El. c. 18. 13 El. c. 10. 1 Ja. c. 3. l. 2. fol. 46. l. 4. fol. 76. 20 El. 5. fo 9. 14. l. 6. fo 37. l. 7. fo 8. l. 11. fo 67. 27 H. 8. 31 H. 8. 32 H. 8. 37 H. 8. 1 E. 6. c. These points concerning Hospitals were resolved by the Justices P. 24. Eliz. The Cheneys case l. 2. fo 48 49. Evesque de Cant. case First That no Hospital was given to the Crown by the Statute of 27 H. 8. nor any Hospital is within the Statute of 31 H. 8. of Monasteries but only Religious and Ecclesiastical Hospitals and that no Lay Hospital was within those Statutes 2. If upon the Foundation of any Hospital or after it was ordained That one or divers Priests should be maintained within the Hospital to celebrate Divine Service to the poor and to pray for the Soul of the Founder and all Christian Souls or the like and that the poor of such Hotals should make the like Orisons yet such an Hospitall is not within the said Statute for the Hospital is Lay and not Religious and all or the most part of ancient Lay Hospitals were founded or ordained after the like sort and the makers of those Statutes never intended to overthrow works of Charity but to take away the abuse 3. That no Hospital was given to the King by the Statute of 37 H. 8. but in two cases where the Donors Founders or Patrons c. had entred and expulsed the Priests Wardens c. between the 4. of Febr. 27 H. 8. and the 25. of Decemb. 37 H. 8. or where King H. 8. by Commission according to that Act should enter and seise the same but that determined by the death of that King l. 1. f. 24. Porters Case 4. That the Statute of 1 E. 6. extended not to any Hospital whatsoever either Lay or Religious as by the same appeareth l. 4. 111 113 114 116. in Lamberts case Nota of Hospitals some are Corporations aggregate of many as of Master or Warden c. and his Confratres some where the Master or Warden hath only the estate of Inheritance in him and the Brethren and Sisters power to consent having College and Common Seal some where the Master or Warden hath the estate in him but hath no College and Common Seal and such a Master or Warden shall have a Juris utrum and of these Hospitals some be Eligible some Donative and some Presentative 14 E. 3. Juris utrum 4. Sect. 646 647. Fol. 342. b. If Tenant pur terme dauter vie dyeth the Freehold is said to be in Abeyance until the occupant enter If a man make a lease for life the remainder to the right heirs of I. S. the fee simple is an Abeyance untill I.S. dyeth Vide Sect. 1. Virg. 4. Aen. Insequiturque solo caput inter â—ubile condit Also when a Parson dyeth we say That the Freehold of the Gleab c. is in consideratione sive intelligentia legâ— because a suceessor is in expectation to take it 24 E. 3. 63. So it is of a Bishop Abbot Dean Archdeacon Prebend Vicar and of every other sole Corporation or Body Politick Presentative Elective or Donative
priviledges in respect of the privity of his estate of the inheritance that was once in him which Tenant in Tail himself hath and which Lessee for life hath not As 1. He is dispunishable for wast 2. He shall not be compelled to atturn 3. He shall not have aid of him in the reversion 4. UpoÌ„ his alienatioÌ„ no writ of entry in consimili casu lieth 5. After his death no writ of intrusion doth lie 6. He may joyn the mise in a writ of Right in a special manner 7. In a praecipe brought by him he shall not name himself Tenant for life 8. In a Praecipe brought against him he shall not be named barely Tenant for life fo 27. b. And yet he hath four other qualities agreeable to a bare Lessee for life and not to an Estate in Tail 1. If he make a Feoffment in fee this is a forfeiture of his estate 2. If an estate in fee or in fee tail in reversion or remainder descend or come to this Tenant his estate is drowned and the fee or fee tail executed 3. He in the reversion or remainder shall be received upon his default 4. An exchange between a bare Tenant for life and him is good for their estates in respect of their quantity are equal so as the difference stands onely in the quality The state of this Tenant must be created altered c. by the act of God and not by the limitation of the party ex dispositione legis non ex provisione hominis Vide Sect. 33. fol. 28. a. l. 11. Lewes Bowles CAP. IV. Curtesie D'engleterre Sect. 35. A Man seised of an advowson or rent in fee hath issue a daughter who is married and hath issue and dieth seised the wife before the rent became due or the Church void dieth she had but a seisin in law and yet he shall be Tenant by the curtesie because he could by no industry attain to any other seisin Et impotentia excusat legem But if the wife in this case dye before her entry into lands c. it is otherwise Vide lib. fo 29. a. Dier 55. 3 H. 7. 5. A man shal not be tenant by the curtesie of a bare right title use or of a reversion or remainder exâ—ectant upon any Estate of Freehold unless the particular Estate be determined during the coverture * If an estate of freehold in Seigniories Rents Commons c. be suspended a man shall not be Tenant by the curtesie As if a Tenant make a Lease for life of the Tenancy to the Seignioress who taketh a husband hath issue the wife dieth he shal not be tenant c. But if the suspension be for years he shall be Tenant by the curtesie fo 29. b. Vide li. 1 E. 3. 6. If a woman maketh a gift in Tail and reserve a rent to her and her heirs and the donor taketh husband and hath issue and the donee dieth without issue and the wife dieth the husband shal not be tenant by the curtesie of the rent for that the rent newly reserved is by the act of God determined no Estate thereof remaineth But if a man be seised in fee of a rent and maketh a gift in Tail general to a woman she taketh husband and hath issue the issue dieth the wife dieth without issue he shall be Tenant by the Curtesie of the rent because the rent remaineth fol. 30. a. Four things do belong to an Estate of Tenancy by the Curtesie viz. Marriage seisin of the wife issue and death of the wife But it is not requisite that these should concur c. at one time and therefore if a man taketh a woman seised of lands in fee and is disseised and then hath issue and the wife die he shall enter and hold by the curtesie So if he hath issue which dieth before the discent c. Vide lib. By the custom of Gavelkind a man may be Tenant by the curtesie without having any issue 9 E. 3. 38. If after issue c. in this case the husband maketh a feoffment in fee and the wife dieth the feoffee shall hold it during the life of the husband the heir of the wife shall not during his life in sur cui in vita for it could not be a forfeiture for that the estate at the time of the feoffment was an Estate of Tenancy by the Curtesie initiate and not consummate Vod l. Dier 363. 34 E. 3. Cui in vita 13. In divers Cases a man shall by having of issue be Tenant by the Curtesie where a woman shall not be endowed c. 7 E. 3. 6. 17 Ed. 3. 51. A man shall be Tenant by the Courtesie of a Common Sans nomber but a woman shall not be endowed thereof A man entitled to be Tenant by the Courtesie maketh a feofment in Fee upon condition and entreth for the condition broken and then his wife dieth he shall not be Tenant c. for his title c. was inclusively absolutely extinct by the Feoffment * Vide librum fo 30. b. Trs sona done al Beron feme a les heireo que le baron ingenera de corps sa feme en ceo case ambideux ont estate en la T I le pur ceo que ceÌ„ parol heires nest limit a lun plius que a lautre Lect. 28. Nul poit eÌ„re Tenant in taile appears possibility d'issue extinct forsque un des donees ou le donee en special taile ne un ques serra punie de wast pur lenheritance que fuit lun foits en luy Mes cesty en le reversion poit enter sil alien en fee. Sect. 36 Baron prist feme enheritrix Sil ad issue per luy ne vife il scera Tenant per le Curtesie I trust me was even now so full of my Courtesie that I had almost forgotten my craft in the taile wot you what I mean why the two last precedent Sections * If any before stay behind I le bring them after with a witnesse Thomas More Thomas de la More Antecessor meus miles creatus fuit in Parliamento cum Edwardus Princeps ille niger dux cornubiae creatus fuerit Anno Regni Reg. Edwardi tertii vndecimo Anno Dom. 1337. CAP. IV. Dower Sect. 36. LA feme serra endowe de la 3. part des treÌ„s c. que sueront a sa baron durant le coverture issint que el passe l' ago de 9. ans al temps del mort sa baron lib. 2. fol. 93. Binghams Case Dower in the common Law is taken for that portion c. which the wife hath for term of her life of the lands or tenements of her husbands c. Propter onus matrimonii ad sustentationem suiipsius educationem liberorum cum fuerint procreati si vir praemoriatur Dos ex donatione est quasi donarium because the law it self doth without any gift of the husband himself give it
case If Lands be demised for life the remainder to the right heirs of I. S. and of I. N. I. S. hath issue and dyeth and after I. N. hath issue and dyeth the issues are not joyntenants for the one moity vested at one time and the other at another time 24 E. 3. 29. And yet in some cases there may be joyntenants and yet the estate may vest in them at severall times As if a man make a Feoffment in Fee to the use of himselfe and of such wife as he should afterwards marry for termes of their lives and after he taketh wife c. 17 El. Dyer Brents c. CHAP. IV. Of Tenants in Common Sect. 292. JOyntenants have the Lands by one joynt title and in one right but Tenants in Common by several titles or by one title and by severall rights which is the reason that joyntenants have one joynt freehold and Tenants in Com. have severall freeholds only this property is common to them both viz. that their occupation is individed and neither of them knoweth his part in severall Vide Sect. 296. Addition probat minoritatem If Lands be given to two Bishops or to two Abbots to have and to hold to them two and their successors in respect of their severall capacities albeit the words be joynt yet the Law doth adjudge them to be severally seised Vide Sect. 200. 7 H. 7. 9. b. 16 H. 7. 15. b. 10 E. 4. 16. b. Fo. 189. b. 190. a. If a Corodie be granted to two men and their heirs because the Corodie is incertain and cannot be severed it shall amount to a severall grant to each of them one Corodie for the persons be severall and the Corody is personall Sect. 297. If Lands be given to J. Bishop of N. and and his successors and to J. Overl Doctor of D. and his heirs being one and the same person he is Tenant in Common with himself 13 Hen. 8. 14. But our Authors rules doe not hold in Chattels realls or personalls for if a Lease for years be made or a ward granted to an Abbot and a secular man or to a Bishop and secular man or if goods be granted to them they are Joyntenants because they take not in their politique capacity An expresse estate controlls an implyed estate Si home sei de cert terre infeoffe un aut del moitie de m. la terre c. Such a feoffment is good by parol without writing and such an uncertain estate shall passe by livery 21 E. 4. 22. b. 10 Eliz. Dyer 28. 33 H. 6. 5. a. vide Sect. 299. fol. 190. b. quaere c. Sect. 301. Expressio eorum quae tacitè insunt nihil operatur In case of Leases for life it is more beneficiall for the Lessor to have the joynture severed then to have it continue Vbi eadem ratio ibi idem jus esse debet for ratio est anima legis ratio potest allegari deficiente lege But it must be ratio vera legalis non apparens Arg. à simili is good in Law sed similitudo legalis est casuum diversor in t se collatorum similis ratio Quod in uno similium valet valebit in altero Dissimilium dissimilis est ratio Sect. 302. Two joyntenants si lun de cux lessa ceo que a luy affiert a un aut pur terme de sa vie per tiel Lease le franktenement ē sever de le Joynture per cest le reason le reversion que ē dependant sur in le franktenement ē sever del joynture si lessor mor. vivant lessee pur vie le reversion discenda al heire del lessor nemy devienda a lauter joynt joyntenant per le survivor Vn franktenement ne poit per nature de joynture estre anex a un reversion c. fo 191. b. vide c. If two joyntenants be of a Lease for 21 years and the one letteth his part for certain years part of the terme the joynture is severed and survivor holdeth not place for a terme for a small number of years is as high an interest as for many more years Hil. 18 Eliz. Com. Banco If two joyntenants make a Lease for life reserving a rent to one of them the rent shall enure to them both because the reversion remains in joynture unlesse the reservation be by Deed indenture and then he onely to whom it is reserved shall have it fol. 192. a. quae 27 Hen. 8. 16. a. 7 E. 4. 25. vide lib. c. And so it is if such a Lessee for life should surrender to one of them it shall inure to them both for that they have a joynt reversion But if the Lessee grant his estate to one of them no part of it shall inure to his companion because for the moity belonging to his companion it is in esse in him to whom the grant is made the reversion to the other in fee 5 E. 4. 4. 38 H. 6. 24. b. 2 Joyntenants font lease pur vie remainder a son comp in fee ceo ē bon remainder de son moity al on comp Sect. 303. If the Joynture be severed at the time of the death of him that first deceased the benefit of survivor is destroyed for ever vide S. 291. Two joyntenants in fee and the one letteth his part to another for the life of the lessor and the lessor dyeth some say that his part shall survive c. for by his death the lease was determined and others hold the contrary for that at the time of his death the joynture was severed for so long as he lived the lease continued And secondly that notwithstanding the act of any one of the joyntenants there must be equall benefit of survivor as to the freehold But here if the other joyntenant had first died there had been no benefit of survivor to the lessor without question fol. 194. Vide nota Sect. 304 305. If two joyntenants be of 20 acres and the one make a feoffment of his part in 18 acres the other cannot release his entire part but only in two acres for that the joynture is severed for the residue Nota upon a Release that creates or inlargeth an estate or inures by way of Mitter le estate a Rent may be reserved but not upon a release that inureth by way of Mitter le droit or which inures by way of Extinguishment fol. 193. b. * Of a release inuring by way of extinguishment made to the husband the wife shall take benefit or to the wife the husband shall take benefit But otherwise it is of a Release which inures by way of Mitter l'estate * 10 E. 4. 3. b. 21 H. 6. 8. b. * En ascun case un release vera de mitter tout le drent que il que fert le release ad celuy a que le release ē fait Vide S. 306. f. 194. a. An usurpation shall work a Remitter to
use of the infant for the State is voidable But where an infant or a man of full age is disseised an entry by a stranger of his own head is good and vesteth presently the estare in the Infant or other disseisee So it is if Tenant for life make a Feoffment in fee an estranger may enter for a forfeiture in the name of him in the reversion and thereby the estate shall be vested in him P 39. El. Com Banco per Cur. 10. H 1. 16 7. E 3. 69 6. E 3. 6â— peâ— Thorp If the Mulier enter upon the Bastard and the Bastard recover the land in an Ass against the Mulier now is the interruption avoided and if the bastard die seised this shall barre the Mulier The possession of the King when he hath no cause of seisure shall be adjudged the possession of him for whose cause he seised 2. Ass 9. fo 245. b. Vide c. And note that the bastard must enter in vacuam poss and continue during his life without interruption made by the Mulier Acts without words may make an entry but not words without an act viz. an entry c. Pl. 91. Parson de Honiâ—awes case 35. H 6. 24. 1 E 3. 21 E 4. 3 21. E 4. 5. 5. E 60 21. H. 6. 9. Sect. 402. Null laches ser adjudge en un Infant lou discent è eschue durant son nonage 33. E 3. qu. imp 46. But in some other cases Laches shall prejudice an infant as if he present not to a Church within six moneths for the Law respecteth more the priviledge of the Church that the cure be served than the priviledge of Infancy and so the publike repose of the Realm concerning mens Freeholds and inheritance shall be preferred before the priviledge c. in case of a Fine where the time begins in the time of the Ancestor Pl. 372. So non-claime of a villeine of an infant by a year and a day who hath fled into Ancient demesne shall take away the seisure of the infant and if an infant bring not an appeal of the death of his Ancestors within a year and a day he is barred of his appeal for ever for the law respects more liberty and life than the priviledge of infancy and note that Littleton putteth his case that an Infant shall enter upon a discent when a stranger dyeth seised but he put it not so before in the case of the Bastardeigne B. Tenant in taile infeoffes A. in fee A. hath issue within age and dyeth B. abateth and dieth seised the issue of A. being still being within age this discent shall bind the infant for the issue in taile is remitted and the Law doth more respect ancient right in this case than the priviledge of an infant that had but a defeasible estate 11. E. 4. 1. 2. F.N.B. 35. 35 m And it is said if the Kâ—ng dieseised of lands and the land discend to his successor that this shall bind an Infant for that the priviledge of an infant in this case hold not against the King 35. H. 6. 60. Fo. 246. a. Sect. 403. Si bar feme come en droit sa feme ont title droit denter c. Tenant delterre mor. seisie c. These words are generall but are particularly to be understood viz. when the wrong was donâ— to the wife during the Coverture for if a feme sole be seised of lands in fee and is disseised and then taketh husband in this case the husband and wife as in the right of the wife have right to enter yet the dying seised of the disseisor in that case shall take away the entry of the wife after the death of her husband and the reason is as wel for that she her self when she was sâ—â—e might have entred recontinued the pâ—ssession as also it shall be accâ—unted her folly that she would take such a husband which would not enter before the discent 9 H 7. 24. a. 2 E 4 25. 7 E. 4. 7. b. 15. E. 4 Discent 30. Negligentia semper habet infortunium comitem Laches le baron ne turnara la feme c. al prejudice Note a diversity albeit reg No Laches shall be accounted in infants or feme Coverts as is aforesaid for not entry or claime to avoid discents yet Laches shall be accounted in them for no performance of a condition anexed to an estate of land For if a feme be infeoffed either before or after marriage reserving a rent and for default of payment a re-entry Iâ— that case the Laches of the baron shall disherit the wife forever 20. H. 6. 28. b. And so it is of an Infant his Laches for not performing of a condition anexed to a State either made to his Ancestor or himselfe shall bar him of the right of the Land for ever 31. Ass p. 17. 42. E. 31. Pl Com. 55. 10. H. 7. 13. H. 7. 35. H. 6. 41. Pl. 136. b. Pleta lib. 2. ca. 50. If a man make a Feoffment in fee to another reserving a rent and if he pay not the rent within a month that he shal double the rent and the Feofee dyeth his heire within age the Infant payeth not the rent he shall not by this Laches forfeit any thing But otherwise it is of a feme covert and the reason of this diversity is for that the Infant is provided for by the Statute Non current usurae contra aliquem infra aetatem existen c. Stat. Mert. ca 5 But that Statute doth not extend to a condition of a re-entry which the Infant ought to performe c. Sect 405 If an ideot make a Feoffment in fee he shall in pleading never avoid it c. But upon an office found for the King the King shall avoid the Feoffment for the benefit of the Ideot whose custody the Law giveth to the King 3â— H 42 b Abb 5 E 3. â—0 Brit. c 28 fo â—6 25 Ass p 4 35. Ass p 10 32. E 3 scire fac 1â—0 Stanf. pr â—4 Vpon all which books there have been four severall opinions concerning the alienation or other act of a man that is non compos mentis â—c 1. That he may avoid his own act by entry or plea. 2. That he may avoid it by writ and not by plea. 3. That he may avoid it either by plea or by writ and of this opâ—nion is Fitzh in his N B 202. And 4. Littleton here is of opinion that neither by plea not by writ nor otherwise he himselfe shall avoid it but â—is heire in respect his Anc. was non comp c shall avoid it by entry plea or writ for it is a maxime of the Common Lawes that the party shall not disable himselfe Lib. â— fo 126 127. Beverlâ—es case But this holdeth onely in civill causes for in criminal causes as felony c. the act of wrong of a mad man shall not be imputed to him for that in those causes actus non
the Feoffee this release shall take away the entry of the disseisor for the alienation which was made to his disinheritance he having the inheritance by disseisin so as he could have no warranty annexed to it and Tenant for life forfeited his estate But if the entry of the disseisee were not lawfull it is otherwise as the Book of 9. H. 7. 25. is of an estate Tail mutatis mutandis Vide l. fo 277. a. Sect. 475. Abate Vide N.B. 115. Brit. cap. 51. Bract. l. 4. cap. 2. Abatamentum is an entry by interposition A Disseisin is a wrongfull putting out of him that is actually seised of a Freehold and Abatement is when a man died seised of an estate of Inheritance and between the death and entry of the heir an estranger doth interpose himself and abate Intrusion 1. properly is when the Ancestor died seised of any estate of inheritance expectant upon an estate for life and then Tenant for life dieth c. and an estranger doth interpose himself and intrude 2. He that enters upon any of the Kings demesns and taketh the profits is said to intrude upon the Kings Possessions F.N.B. 203. Fleta l. 4. cap. 30. Pl. Com. case de Mynes 3. When the heir in ward enters at his full age without satisfaction for his marriage the writ saith quod intrusit F.N. B. 141. F. Deforciamentum comprehendeth not only these aforenamed but any man that holdeth Land whereunto another man hath right be it by discent or purchase is said to be a deforcer Usurpation hath two significations in the common Law one when an estranger that no right hath presenteth to a Church and his Clark is admitted and instituted 2. When any subject doth use without lawful warrant Royall franchises he is good to usurp c. Purprestura est c. generaliter quories aliquid sit ad nocumentum regii tenementi vel regiae viae vel aliquarum publicar vel civitatis c. Glanv l. 9. ca. 11. Brit. fo 28. 29. And because it is properly when there is a house builded or an inclosure made of any part of the Kings demesne or of an high way or a common street or publike water or such publike things it is derived of the French word Pourpris which signifieth an inclosure but specially applyed as is aforesaid by the common Law Sic nota differentiam inter disseisinam Abatamentum Intrusionem deforciamentum usurpationem purpresturam Sect. 476. Fo. â—77 b. But if the Feoffee upon condition make a Feoffment in fee over without any condition and the disseisee release to the second Feoffee the condition is destroyed by the release before the condition broken or after for the state of the second Feoffee was not upon any express condition as Littleton here putteth his case and he may have advantage of the release because it is not against his own proper acceptance as Littleton speaketh in the next Section L. 1. fo 147. Mayowes case But if it be a wrongfull title such a title is taken away by a release As if A. disseised B. to the use of C.B. release to A. this shall take away the agreement of C. to the disseisin because it should make him a wrong doer as if the disseisor be disseised the disseisee release to the second disseisee this taketh away the right of the first disseisor had against the second and a relation of an estate gained by wrong shall never defeat an estate subsequent gained by right against a single opinion not affirmed by any other in our books 14. H. 8. 11. per Portm Si disseisee release al Feoffee sur condition ceo namendre lestate le Feoffee c. Sect. 477. Fo. 478. a. Home navera advantage per un release que serre enconter son proper acceptance encounter son grant dem compt que asc ' ont dit que lou enier de hâ—me est congeable sur un tenant sil release a mes le tenant que ceo availoit a le tenant sicom il ust enter sur le tenant puis luy infeoffa c. ceo neâ— pas voier en chesc ' cas Car si le disseisee ust enter sur le Feoffee sur condition puis luy infeoffa donques est le condition tout defeat mes il ne pas void per asc ' tiel release sant entry fait c. If A. and B. be joynt disseisors and B. grant a rent charge and the disseisee release to A. all his right A. shall avoid the rent charge because it was not granted by him and so not within the reason of our authour If two disseisors be and they infeoffee another and take back an estate for life or in fee albeit they remain disseisors to the disseisee as to have an Ass against them yet if he release to one of them he shall not hold our his companion because their state in the land is in by Feoffment If there be two disseisors and they be disseised and they release to their disseisor and after disseise him and then the disseisee release to one or both of them yet the second disseisor shall reenter for they shall not hold the land against their own release If a disseisee release to one of the disseisors to some purpose this shall enure by way of entry and Feoffment viz. as to hold out his companion But as to a rent Charge granted by him it shall not enure by way of entry and Feoffment for if the disseisee had entred and enfeoffed him the rent charge had been avoided But it is a certain rule that when the entry of a man is congeable and he release to one that is in by title as here to the Feoffee upon condition is it shall never enure by way of entry and Feoffment either to avoid a condition with which he accepted the land charged or his own grant or to hold out his companion And where it appeareth by our authour that acts done by the disseisor shall not be avoided by the release of the disseisee It is to be noted that acts made to the disseisor himself shall not be avoided by the alteration of his estate by the release of the disseisee as if the Lord before the release had confirmed the estate of the disseisor to hold by lesser services the disseisor shall take advantage of it and so of estovers to be burnt in the house and the like Law is of a warrantty made unto him If an alien be a disseisor and obtain letters of denization and then the disseisee release unto him the King shall not have the land for the release hath altered the estate and it is as it were a new purchase otherwise it is if the alien had been the Feoffee of a disseisor Fo. 278. b. If the Lord disseise the Tenant and is disseised the disseisee release to the second disseisor yet the Seignory is not revived for between the parties the release enures by way
the Patron must give his consent But if there be a Corporation aggregate of many as Dean and Chapter Mr. fellowes and Schollars of a Colledge Abbot or prior and Covent c. or any sole corporation that hath the absolute fee as a Bishop with consent of the Deane and Chapter they may by the Common Law make any grant of or out of their possessions without their founder or patron albeit the Abbot or prior c. were presentable and so it is of a Bishop because the whole estate and right of the Land was in them and they may respectively maintaine a writ of right 12 H. 4. 11. 19 E 3. 7. 7. Eliz. Dy. 238. 9. E. 4. 6. 2 H 4. 11. And note a diversity betweene a confirmation of an estate a confirmation of a deed for if the disseisor make a charter feoffment to A. with a Letter of Attorney and before livery the disseisee confirm the estate of A. or the Deed made to A. this is cleerly void though livery be made after But if a Bishop had made a Charter c. and the Deane and Chapter before livery confirm the Deed this is a good confirmation and livery made afterwards is good The like Law is of confirmation of a Deed of grant of a reversion before Attornement Grants made by Parsons Prebends Deane and Chapter c. are restrained by divers acts of Parliament 13. El ca. 10. 1. Eliz. ca. 18. 18. El. ca. 11. 1. Ja. ca. 3. Section 593 and 648. l. 2. fo 46. l. 4. 76. 120. l. 5. 9. 6. 14. li. 6. 17. li. 7. 8. lib. 11. 6. 7. defessus sum c. Sect. 529. and Sect. 531. Fol. 301. a b. Note a diversity where the determination of the rent is expressed in the Deed and when it is implyed in Law For when Tenant for life grant a rent in fee this by Law is determined by his death and yet a confirmation of the grant by him in reversion makes that grant good for ever without words of inlargement or clause of distreâ—â—e which would amount to a new grant and yet if the Tenant for life had granted a rent to another and his heires by expresse words during the life of the grantor and the lessor had confirmed that grant it should determine by the death of Tenant for life 26. Ass p. 38. 45. Ass p. 13. 14. Ass p. 14. Dedi or concessi may amount to a grant a feoffment a gift a Lease a release a confirmation a surrender c. and it is in the Election of the party to use which of these purposes he will Brit. li. 2. f. 59. b. Brook tit confir 20. 14 H. 7. 2 37. H. 6. 17. Dy. 8. Eliz. 4 H. 7. 10. 22 E. 4. 36. 40 E. 341. But a release confirmation or surrender c. cannot amount to a grant c. nor a surrender to a confirmation or to a release c. because these be proper and peculiar manner of conveyances c. Dimifi and this verbe volo will amount to a confirmation 7 E. 3. 9. In ancient statutes and in originall writs as in the writ of entry in casu proviso in consimili casu ad com legem c. this word dimifi is not applyed onely in a Lease for life but to a gift in taile and to a state in fee. 32 E. 3. breve 29. 1. Stat. Gloc. ca. 4. Benignae enim faciendae sunt intepraetationes cartarum propter simplicitatem laicorum ut res magis valcat quam pereat and he to whom such a Deed comprehending dedi c. is made may plead it as a grant as a release or as a confirmation at his Election 14 H. 4. 36. li. 5. fo 15. in Newcomens case If a disseisor make a Lease for life or a gift in taile the remainder to the disseisee in fee the disseisee by his Deed granteth over the remainder the particular tenant attorneth the disseisee shall not enter upon the Tenant for life or in taile for then he should avoid his grant demesne which amounted to a grant of the estate and a confirmation also Sect. 543. Fol. 302. b. If cesty que use and his feoffees after the Statute 1 R 3. and before the Statute 27 H. 18 ca. 10. had joyned in a fâ—offment it shall be the feoffment of the feoffees because the State of the Land was in him 21 H. 7. 34. b. Pl. Com. 59. a. Wimbishes case So it is if the Tenant for life and he in the remainder or reversion in fee joyne in a feoffment by Deed the livery of the freehold shall move from the leffee and the inheritance from him in the reversion or remainder from each of them according to his estate Pl. Com. 140. Brownings case 2 H 5. 7. 13 H. 7. 14. 13 E. 4. 4. a. 27 H. 8. 13. M. 16. and 17 El. 339. But if he in the reversion in fee and Tenant for life joyn in a feoffment per paroll this shall be as some hold first a surrender of the estate of Tenant for life and then the Feoffment of him in the reversion for otherwise if the whole should passe from the lessee then he in the reversion might enter for the forfeiture and every mans act ut res magis valeat shall be construed most strongly against himself If the disseisor and disseisee joyn in a Charter of feoffment and enter into the Land and make livery it shall be accounted the feoffment of the disseisee and the confirmation of the disseisor Placitum à placendo quia omnibus placet Fo. 303. a. Ordine placitandi servato servatur jus c. 1. In good order of pleading a man must plead to the jurisdiction of the Court. 2. To the person of the plaintiffe and to the defendant 3. To the Count. 4. To the Writ 5. To the action c. Bract. li. 5. fo 400. Britton fo 41. a. and 122. 40. E. 3. 9. b. The count must be agreable and conform to the writ the barre to the count c. and the judgement to the count Certa debet esse intentio narratio certum fundamentum et certa res quae deducitur in judicium Note three kind of certainties 1. To a Common intent and that is sufficient in a barre which is to defend the party and to excuse him 2. A certaine intent in generall as in Counts replications and other pleadings of the plaintiffe that is to convince the defendant and so in indictments c. 3. A certaine intent in every particular as in Estoppells Bract. l. 2. fo 140. lib. 5. 120 c. Lobs case Where a matter of Record is the foundation or ground of the suit of the plaintiffe or of the substance of the plea there it ought to be certainly and truly alleadged otherwise it is where it is but a conveiance Pl. Com. 65. a 6. 100. 376. and 410. 8. Ass 29. 5 E. 4. 70 E. 4. 1. Ambiguum placitum interpretari
of a grant of a rent service the attornment of the disseisee sufficeth 21 H. 6. 9. b. It was holden by Dyer and Mounson in the Argument of Brace bridges case that if he that hath a rent charge granteth it over for life and the Tenant of the Land attorn thereunto and after he grant the reversion of the rent charge that the grantee for life may attorne alone and that these words of Littleton are to be understood when a rent charge or rent seck is granted in possession and a quid juris clamat in that case did lye against the grantee for life 46 E. 3. 27. 2 H. 6. 9. Vide Littleton Sect 549. and 553. A man maketh a Lease for life and after grants to A. a rent charge out of the reversion A. grants the rent over he in the reversion must Attorne and not the Tenant of the freehold for that the freehold is not charged with the rent for a release made to him by the grantee doth not extinguish the rent and Littleton is to be understood that the Tenant of the freehold must attorne when the freehold is charged Vide fo 312. a. Littleton speaketh of five kindes of inheritances whereto an Attornement is requisite 1. Of a Seignory rent service c. 2. Of a rent charge 3. Of rent seck 4. Of a reversion 5. Of a remainder of Lands For the Tenant shall never need to Attorne but when there is tenure attendance remainder or payment of a rent And therefore if an annuity common of pasture common of estovers be granted for life or years c. the reversion may be granted without any Attornment 21 H. 7. 1. 1 H. 5. 1. 37. Ass 14. 36. Ass p. 3. 31 H. 8. Attorn Br. 59. Sect. 557. Fol. 312. b. In this case of Littleton by this escheat of the remainder the Seigniory is extinct for the fee simple of the Seigniory being extinct there cannot remain a particular estate for life thereof in respect of the tenure and attendance over 3. 3 H. 6. 1. old tenures 107. 15 E. 4. 15. a. per Littleton But otherwise it is of a rent charge in fee for if that be granted for life and after he in the reversion purchase the Land so as the reversion of the rent charge is extinct yet the grantee for life shall enjoy the rent during his life for there is no tenure or attendance in this case Sect. 558 559. Fo. 313. a. Littleton now commeth to speak of Atornments in Law or implyed 3 E. 3. 42. 15 E 3. Attorne 11. If the Lord grant his Signiory to the Tenant of the land and to a stranger and the Tenant accept the Deed this acceptance is a good Attornment to extinguish the one moity and to vest the other moity in the grantee Suspense is when a Seigniory Rent profit apprehend c. by reason of unity of possession of the Rent Seigniory c. of the Land out of which they issue are not in esse for a time and they are said to be extinguished when they are gone for ever and can never be revived that is when one man hath as high and perdurable estate in the one as in the other Sect. 560. 561. Fol. 313. a. b. Note that albeit a grant may enure by way of release and a release to the Tenant for life doth work an absulute extinguishment whereof he in the remainder shall take benefit yet the Law shall never make any construction against the purport of the grant to the prejudice of any or against the meaning of the parties c. Vide lib. c. Sect. 562. Fo. 314. a. Note a diversity when the whole estate in the Seigniory is suspended and when but part of the estate in the Seigniory is suspended but for terme of life and therefore as to all things concerning the right it hath its being but as the possession during the particular estate the grantee shall take no benefit therefore during that time he shall have no rent service Wardship Relief Heriot c. because these belong to the possession but if the Tenant dyeth without heir the Tenancy shall escheat unto the grantee for that it is in the right and yet when the Seigniory is revived by the death of the Tenant there shall be wardship as if the Tenant marry with the Seignioresse and dyeth his heire within age they shall have the wardship of the heire Also in the case that Littleton here putteth albeit the Seigniory be suspended but for life yet some hold that he cannot grant it over because the grantee took it suspended and it was never in esse in him but if the Tenant make a Lease for years or for life to the Lord there the Lord may grant it over because the Seigniory was in esse in him and the fee simple of the Seigniory is not suspended but if the Lord disseise the Tenant or the Tenant infeoffe the Lord upon condition there the whole estate in the Seigniory is suspended and therefore he cannot during the suspension take benefit of any escheat or grant over his Seigniory 34. Ass p. 15. 16 E. 3. vouch 83. 5 E. 3. Twongs case Sect. 563. 564. Fo. 314. Attornment for part cannot be void for that and good it cannot be unlesse it be for the whole 4 E. 3. 55. Malmans case 5 E. 4. 2. 7 H. 4. 10. 35 H. 6. 8. per prisot And payment of any parcell of the services is an agreement in Law to the grant 40 E. 3. 34. Intentio inservire debet legibus non leges intentioni 20 H. 6. Judgement in scire facias pur parcell de le services est bone attorn en ley commit que il est presume quod judicium redditur in invitum 48 E. 3. 24. 37 H. 6 14. per Moyle 17 E. 3. 29. Note that in case of Deed nothing passeth before attornment In the case of the fine the thing granted passeth as to the State but not to distraine c. without Attornment In the case of the King the thing granted doth passe both in estate and in privity to distreine c. without Attornment unlesse it be of Lands or Tenements that are parcell of the Dutchy of Lancaster and lye out of the County Palatine Sect. 565. Fo. 315. b. Note a diversity between money given by way of Attornment and where it is given as parcell of the Rent by way of seisin of the Rent And therefore a payment in name of seisin is more beneficiall for the grantee because this is both an actuall seisin and an Attornment in Law and yet being given before the day in which the Rent is due it shall not be abated out of the Rent 39 H. 6. 3. 26. 5 E. 4. 2. Vide S. 235. 7 H. 4. 2. Attorny Br. 97. Sect. 566. As of an Attornment so a seisin of a rent by the hands of one joynt-tenant is good for al and a seisin of part of the rent is a good seisin
Land and makes a feoffment in fee with warranty and dyeth this is no disccontinuance of the rent 3 H. 7. 12. 9 E. 4. 22. And where the thing doth ly in livere as Lands and Tenements yet if to the conveyance of the freehold or inheritance no livery of seisin is requisite it worketh no discontinuance As if Tenant in Taile exchange Lands c. or if the King being Tenant in Taile grant by his Letters Patents the Lands in fee there is no discontinuance wrought 38 H. 8. Pat. Br. 10. 1. Pl Com 233. l. 1. f. 26. Altwoods case Of a thing that lyeth in grant though it be granted by Fine yet it is no discontinuance and this is Regularly true 48 E. 3. 23. If Tenant in taile make a Lease for years of Lands and after levy a Fine this is a discontinuance for a Fine is Feoffment of Record and the freehold passeth 15 E. 4. discontinuance 30. But if Tenant in taile make a Lease for his owne life and after levy a Fine this is no discontinuance because the reversion expectant upon a Statute of freehold which lyeth only in grant passeth thereby 6 H. 8. 56 57. Sect. 620. Si Tenant in tail fait Lease a Terme de vie le lesee c. apres tenant in taile grant per son fait le reverson in fee a un auter le tenant a terme de vie attornment mor. vivant le Tenant in taile le grantee del reversion enter c. en la vie le Tenant in taile donque ceo est un discontinuance en fee. For when the revetsion in this case executed in the life of Tenant in taile it is equivalent in judgement of Law to a Feoffment in Fee for the state for life passed by livery 32 E. 3. discontinuance 2. 3 H. 4. 9. 34. Ass 6. p. 4. 38. Ass 6. p. 6. But if the Tenant in taile make a Lease for Terme of the life of the Lessee c. and grant over the reversion and dyeth and after the death of Tenant in taile the Lessee dye the entry of the issue is lawfull because by the death of the Lessee the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also If Tenant in taile make a Lease for life the remainder in fee this is an absolute discontinuance albeit the remainder be not executed in the life of Tenant in taile because all is one estate and passeth by livery and so note a diversity between a grant of a reversion and a limitation of a remainder 21 H. 6. 52 53. B. Tenant in Tail makes a gift in Tail to A. and after B. releases to A. and his heirs and after A. dyeth without issue the issue of the first Donee may enter upon the collateral heir because A. had not seisin and execucion upon the reversion of the land in the demesn as of fee. But if Tenant in Tail make a lease for the life of the lessee and after release to him and his heirs this is an absolute discontinuance because the fee simple is executed in the life of Tenant in Tail If Tenant in Tail of a Manor whereunto an Advowson is appendant make a feoffment in fee by Deed of one acre with the Advowson and the Church becommeth void and the feoffee present Tenant in Tayl dyeth the Church becometh void the issue shall not present untill he hath reconcontinued the acre But if the feoffee had not executed the same by Presentment then the issue in Tail should have presented And so was it at the Common Law of the husband seised in the right of his wife Mutatis mutandis 34 E. 1. Qu. imp 179. 22 E. 3. 6. 17 E. 3. 3. 33 E. 3. qu. imp 196. 23 Ass 8. If the husband and wife make a lease for life by Deed of the wives land reserving a rent the husband dyeth this was a Discontinuance at the Common Law for life and yet the reversion was not discontinued but remained in the wife otherwise it is as if the husband had made the lease alone 38 E. 3. 32. 18. Ass 2. 18 E. 3. 54. 22 H. 6. 24. If Tenant in Tail make a lease for life of the lessee and after grant the reversion with Warranty and dyeth before execution this is no discontinuance because the discontinuance was but for life and the Warranty cannot enlarge the same Bro. Discontinuance 3. 21 H. 7. 11. l. 1. fo 85. l. 10. fo 96 97. If Tenant in Tail make a Lease for life and grant the reversion in fee and the lessee attorn and that grantee grant it over and the lessee attorn and then the lessee for life dyeth so as the reversion is executed in the life of Tenant in Tail yet this is no Discontinuance because he is not in of the grant of the Tenant in Tail but of his grantee 15 E. 4. Discont 30. Vide Sect. 642. fol. 333 b. If Tenant in Tail make a lease for life and after disseiseth the lessee for life and maketh a feoffment in fee the lessee dyeth and then Tenant in Tail dyeth albeit the fee be executed yet for that the fee was not executed by lawful means it is no Discontinuance Sect. 625. Fol. 335. a. Littleton here putteth his case of a reversion immediately expectant upon the gift in Tail Also it is to be intended of a feoffment made to the donor solely or only for if the donee infeoff the donor and a stranger this is a Discontinuance of the whole land 41 Ass 2. 41 E. 3. 2. 28 H 8. Dyer 12. lib. 1. fo 140. in Chudleys case 9 E. 4. 24. b. But if Tenant for life make a lease for his own life to the lessor the remainder to the lessor and estranger in fee in this case forasmuch as the limitation of the fee should work the wrong it enureth to the lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger Nul poit discont ' lestate en taile si non que il discont ' le reversion c. ou le remainder c. 40 Ass 36. 61 Ass 36. 18 E. 3. 45. F N B. 142 a. Pl. Com. 555. And therefore if the reversion or remainder be in the King the Tenant in Tail cannot discontinue the estate Tail But Tenant in Tail the reversion in the King might have barred the estate Tail by a Common recovery untill the Stature of 33 H. 18. cap. 20. which restraineth such a Tenant in Tail but that Common Recovery never barred nor discontinued the Kings reversion 33 H 8. Tail Br. 41. If a feme covert be Tenant for life and the husband make a Feoffment in fee and the lessor enter for the forfeiture here is the reversion revested and yet the Discontinuance remained at the Common Law 27 Ass p. 60. 29 Ass 43. 11 Ass 11. 16. Ass 11 18 E. 3. 45. Sect. 632. Fol. 336. b. Si
performing of the condition c. and yet the lessor himself was never bound to the warranty but it hath relation from the first livery and by this it appeareth that a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may work in the beginning But otherwise it is if a man grant a Seigniory for yeares upon condition to have fee with warranty in forma praedicta c. And so it is if a man make a Lease for yeares the remainder in fee and warrant the Land in forma predicta he in the remainder cannot take benefit of the Warranty because he is not party to the Deed and immediately he cannot take she were party to the Deed because he is named after the â—abendum and the estate for yeares is not capable of a warranty And so it is if Land be given to A. and B. so long as they â—oyntly together live the remainder to the right heires of â—â—m that dieth first and warrant the land in forma predicta A. dyeth his heir shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heir of A. have the Land by discent Sest 722. Fol. 378. b. Si le 1. fits alienast c. By the Alienation of the Donee two things are wrought 1. The Franktenement and Fee is in the Alienee 2. The reversion is devested out of the donor and therefore by the alienation that transferreth the freehold and fee simple to the Alienee there can no remainder be raised and vested in the second sonne 27 H. 8. 24. 6. R. 2. quod jur clam 23. Also an estate of an inheritance in Lands and Tenements cannot cease or be void before the state be defeated by entry then if this remainder should be good then must it give an entry upon the Alienee to him that had no right before which should be against the expresse rule of Law viz. That an estate cannot be given to a stranger to avoid a voidable Act. One Alienation cannot vest an estate of one and the same Land to two severall persons at one time If a man seised of an Advowson in fee by his deed grant the next presentation to A. and before the Church become void by another Deed grant the next presentation of the same Church to B. the second grant is void for A. had the same granted to him before and the grantee shall not have the second avoidance by construction to have the next avoidance which the grantor might lawfully grant for the grant of the next avoidance doth not import the second presentation But if a man seised of an Advowson in fee take wife now by Act in Law is the wife intitled to the third presentation if the husband dye before The husband grants the third presentation to another the husband dye the heire shall present twice the wife shall have the third presentation and the grantee the fourth for in this case it shall be taken the third Presentation which he might lawfully grant and so note a diversity between a Title by act in Law and by act of the party for the act in Law shall work no prejudice to the grantee Periculosum est res novas inusit at as inducere Eventus varios res nova semper habet vide §. 87 c. Sect. 723. fol. 379. a. Here by the Opinion of Littleton the Donor may re-enter for the condition broken for Vtile per inutile non vitiatur which being in case of a condition for the defeating of an estate is worthy of Observation And it is to be noted That after the death of the Donor the condition descendeth to the eldest Sonne and consequently his alienation doth extinguish the same for ever wherein the weaknesse of this invention appeareth and therefore Littleton here saith That it seemeth that the Donor may re-enter and speaketh nothing of his heirs A man hath issue two Sons and maketh a gift in Tail to the eldest the remainder in fee to the puisne upon condition that the eldest shall not make any discontinuance with warranty to barre him in the remainder and if he doth that then the puisne Son and his heirs shall re-enter the eldest maketh a feoffment in fee with warranty the Father dyeth the eldest Son dyeth without issue the puisne may enter But if the discontinuance had been after the death of the Father the puisne could not have entred In this case four points are to be observed 1. As Littleton here saith the entry for the breach of the Condition is given to the Father and not to the puisne Sonne 2. That by the death of the Father the condition descends to the elder Sonne and is but suspended and is revived by the death of the eldest Son without issue and descendeth to the yongest Son 41 E. 3. vide Sect. 446. 3. That the feoffment made in the life of the Father cannot give away a condition that is collaterall as it may doe a right 4. That a Warranty cannot binde a Title of entry for a condition broken but if the discontinuance had been made after the death of the Father it had extinguisht the condition which case is put to open the reason of our Authors opinion The ancient Judges and Sages of the Law have ever as it appeareth in our Books suppressed innovations and novelties in the beginning as soon as they have offered to creep up lest the quiet of the Common-wealth might be disturbed 31 Ed. 3. Gager delivery 5. 22 Ass 12. 38 Ed. 3. 1. 2 H. 4. 18 c. And so have Acts of Parliament done the like 1 Ed. 3. cap. 15. Stat. 3. 18 Ed. 3. cap. 1. 6. 4 Hen 4. cap. 2. 11 Hen. 6. cap. 23. 12 Ed. 4. cap. 8 c. Sect. 726. fol. 380. a. Here note this diversity If the heir be within age at the time of the discent of the Warranty he may enter and avoid the estate either within age or at any time after his full age 18 Ed. 4. 13. 35 Hen. 6. 63. 28 Ass 28. 32 Ed. 3. garr 30. and Littleton saith well That the Infant in this case may enter upon the Alienee for if he bring his action against him he shall be barred by this Warranty so long as the state whereunto the Warranty is annexed continues and be not defeated by entry of the heir but if he be within age at the time of the alienation with Warranty and become of full age before the discent of the Warranty the Warranty shall barre him for ever Our Author putteth his cases where the entry of the Infant is lawfull for where it is not lawfull when the Warranty descendeth the Warranty doth binde the Infant as well as a man of full age and the reason is because the state whereunto the Warranty was annexed continueth and cannot be avoided but by action in which action
vie and yet the Lessee may assigne it to whom he will or if he hath already an Estate for another mans life without these words then it were good for him to assign his Estate to divers men and their heirs during the life of Ce ' que vie Lit. 167. Dier 253. If a Lease be made to A c. For terme of his owne life and the lives of B. and C the lessee hath but one freehold which hath this limitation during his own life and the lives of two others and here note a diversity between several estates in severall degrees and one Estate with several limitations for in the first an Estate for a mans owne life is higher then for another mans life but in the second it is not l. 5. Rosses case If Tenant for life infeoffe him in the remainder for life this is a surrender and no forfeiture and albeit an Estate for term of a mans own life be but one Freehold yet may severall Freeholds in certain Cases be derived out of the same Vide libr. A. and B. joyntenants A. for life and B. in Fee joyne in a Lease for life A. hath a reversion and shall joyn in an action of Waste Tenant for life and he in the reversion joyne in a Lease for life it is said that they shall joyn in an action of wast and that the lessee for life shall recover the place wasted and he in reversion dammages Fo. 42. a F.N.B. 59. F. 13. H. 7. 15. If a man make a Lease of a Mannor worth 20. l. per annum to another until 100 l. be paid in this case because the annuall profits of the Mannor are incertain he hath an estate for life if livery be made determinable upon the levying of a 100 l. Fol. 42. a. And yet in some Cases a man shall have an incertaine interest in Lands c. and yet neither an Estate for life for years or at will As if a man by his will in writing devise his lands to his executors for payment of debts and untill his debts be paid in this Case the executors have but a chattell and an incertain interest in the land untill his debts be paid for if they should have it for their lives then by their death their estate should cease and the debts unpaid but being a Chattell it shall go to the executors of executors c. And so note a diversity between a devise and a conveiance at the common Law in his life time l. 8. Mannings The Law which abhorreth injury and wrong will never so construe any Act c. as it shall work a wrong whensoever the words of a Deed or of the parties without Deed may have a double intendment and the one standeth with Law and Right and the other is wrongfull and against Law the intendment that standeth with Law shall be taken Fo. 42. b. The Law more respecteth a lesser estate by right than a larger estate by wrong Tenant in taile made a Lease to another for terme of life generally and after released to the Lessâ—e and his heires albeit between the Tenant in Taile and him a Fee simple passed yet after the death of the Lessor the entry of the issue in Tail was lawfull which could not be if it had been a Lease for the life of the Lessee foâ— then by the release it had been a discontinuance executed Sect. 57. Tenant per vie ad franktenement null auter de meind Estate Many that have capacity to take have no ability to infeoffe c. As Aliens borne Tratiors Felons c. Ideots madmen a feme covert an infant a man by dures c. For the feoffement c. of these may be avoided Brit. fo 88. In judgment of Law the King as King cannot be said to be a minor for when the Royall body politique of the King doth meet with the naturall capacity in one person the whole body shall have the quality of the Royall politique c. omne majus trabit ad se quod est minus A Licence for alienation grew by the Statute of the 20. H. 3. 20. Ass pl. 17. by Skipwith vide lib. By the Statute 1 E. 3. ca. 12. 34. Ed. 3. cap. 15. Although the Kings Tenant in chiefe c. do alien all or any part without Licence yet is there not any forfeiture of the same but a reasonable fine therefore to be paid The Statute of 18. E. 1. De quia Emptor c. hath in effect as to the common persons taken away the Statute of Mag. Charta cap. 32. for thereby it is provided Quod liceat unicuique libero homini trans suas c. Seu partem inde ad voluntatem suam vendere ita quod Feoffatus teneat c. de capitali domino Note first that this word liceat proveth that the Tenant could not or at least was in danger to alien parcell of his Tenancy c. upon the said Act of Mag. Charta 2. That upon the Feoffment of the whole the Tenant shall hold of the chief Lord. 3. That the Tenant might enfeoffe one part to hold pro particula of the chief Lord. But this Act the King being not named doth not take away the Kings Fine due to him by the Statute of Mag. Charta Tenant by Statute Merch. Statute Staple or Elegit are said to hold land ut liberum Tenementum untill their debt be paid and yet they have no Freehold but a Chattel c. But ut is similitudinary because they shall by the Statutes have an Ass as the Tenant of the Freehold shall have and yet nullum simile est idem 28. Ass p. 7. w. 2. c. 18. St. Merc. 13. E. 1. 27. E. 3. c. 9. 23. H. 8. c. 6. F.N.B. 178. CHAP. VII Tenant for Term of yeers Sect. 58. THere be three kinds of persons who at this day may make leases for three lives or XXI yeers c. which could not so doe when Littleton wrote viz. 1. Any person seised of an estate tail in his own right 2. Any person seised of an estate in Fee simple in the right of his Church 3. Any husband and wife seised of any estate of inheritance in Fee simple or Fee taile in the right of his wife or joyntly with his wife before the coverture or after And these are made good by the Statute of 32. H. 8. But the Statute of 1. Eliz. 13. El. 18. El. and 1. Reg. Jac. are disabling Vide libr. c. l. 5. fo 6. If two severall Tenants of severall Lands joyne in a lease for years by Deed indenture these be severall leases and severall confirmations of each of them from whom no interest passeth and work not by way of conclusion in any sort because severall interests passe from them Fol. 45. a. Vide quaere Whensoever any interest passeth from the party there can be no estoppell against him H. 44. El. R. 1459. ca. 8. Leases for lives or years are of
three natures some be voidable by entry and some void without entry Vide c. 32. H. 8. c. 28. l. 3. 59. 60. 33. H. 8. Dy. Entry Terminus in Law doth not only signifie the limits and limitation of time but also the estate and interest that passeth for that time As if a man make a Lease for 21. years and after make a Lease to begin à Fine expiratione praedicti termini c. and after the Lease first made is surrendred the second Lease shall begin presently but if it had been to begin post finem expirationem praedict 21 ann c. the second Lease should not begin till after the first Terme c. be ended by effluxion of time Fol. 45. l. 1. 154. l. 8. 145. Pl. c. 198. Terminus annorum certus esse debet determinatus Id certum est quod certum reddi potest 14. H 8. 14. The years must be certain when the Lease is to take effect in interest or possession l. 1. 155. 156. l. 6. 34. 35. If the Parson of D. make a Lease of his glebe for three yeares and so 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 first for three years and after that for three years and for the rest uncertain Terminus vitae est incertus c. And therefore if a man maketh a Lease for 21 years if I.S. live so long this is a good Lease and yet certain in incertainty 1. Pl. c. 273. Any estate for life being an estate of Freehold against whom a Praec quod redd doth lye is an higher and greater estate then a Lease for yeares Fo. 45. b. Albeit a Lease for years must have a certain beginning and a certaine end yet the continuance thereof may be incertain for the same may cease and revive again in many Cases Vide c. Fo. 46. a. 6. E. 6. Dy. 72. accord If a feme covert leavie a fine alone If the husband enter and avoyd the fine and die the whole estate is so avoyded as it shall not bind the wife after his death If a woman be endowed of an Advowson which is appropriated and shee present and her Incumbent is admitted instituted and inducted albeit the Incumbent die yet is the appropriation wholly dissolved because the Incumbent which came in by presentation had the whole state in him 2. E. 3. 8. per Scroop A release made to Tenant for years is not good to him to increase his estate before entry but he may release the rent reserved before entry in respect of the privity Neither can the Lessor grant away the reversion by the name of the reversion before entry But the Lessee before entry hath an interest interesse termini grantable to another Fo. 46. b. Vide c. D. 454. 567. If a lease be made to a baron and feme for term of their lives the remainder to the executors of the survivor of them the husband grant away this terme and dieth this shall not bar the wife for that the wife had but a possibility and no interest H. 17. El. B. R. If a lease be made by Indenture bearing date 26. Maii c. To have and to hold from the making hereof or from henceforth it shall begin on the day in which it is delivered c. But if it be à die confectionis then it shall begin the next day after the delivery l. 2. 5. Pl. Com. 148. l. 5. Fo. 1. Dy. 286. 307. l. 5. f. 1. A rent must be reserved out of lands or tenements whereunto the Lessor may have recourse to distreine and therefore a rent cannot be reserved by any common person out of any incorporeall Inheritance as Advowson Common Offices Corrodie Malcture of a Mill Tythes Fairs Markets Liberties Priviledges Franchises c. But if the Lease be made of them by Deed for years it may be good by way of contract to have an Action of Debt but distraine the Lessor cannot Neither shall it passe with the grant of the reversion for that it is no rent incident to the reversion But if any rent be reserved in such case upon a Lease for life it is voyd for that no action of debt doth lie Fo. 47. a. l. 7. 23. l. 10. 59. 30. Ass p. 5. Note a diversity betweene an exception which is ever part of the thing granted and of a thing in esse and a reservation which is alwayes of a thing not in esse but newly created or reserved out of the Land or Tenement demised Ex verbo generali aliquid accipitur Vide c. Valuable things shall not be distrained for rent for benefit and maintenance of Trades which by consequent are for the Common-wealth as cloth in a Taylors shop c. 7. H. 7. 1. b. Nothing shall be distresse for rent that cannot be rendred againe in as good plight c. but for damage feasant it is otherwise Vide c. 11. H. 7. 14. a. 21. H. 7. 39. b. 2. H. 4. 15. For rent due the last day of the Term the lessor cannot distrain because the Term is ended Fo. 47. b. Note a diversity between a rent reserved upon a Lease for yeares reserving a yearly rent the lessor may have severall actions of debt for every yeares rent But upon a bond or contract for payment of severall summes no action of debt lyeth till the last day be past In every contract there must be quid pro quo for contractus est quasi actus contra actum Vide c. l. 2. 15. a. If the Lease be made by Deed Poll the Lessee is not estopped to say that the lessor had nothing at the time of the Lease made but if it be by Deed indented then are both parties concluded c. 20. E. 4. 10. 2. E. 2. 253. Si hom pt Lease de son tr dem per fet indent lestop ne continue apres le terme expire M. 31. 32. El. in 8. Fo. 4◠a. Sect. 59. Il ne besoigne asc ' livery de seisin desire ft. allessee per ans mes il poit enter quant il voit per force de m. le Leas mes lou franktenement passa auterment est A livery in Deed may be done either by a solemne act and words as by delivery of the ring or haspe of the door c. And the Feoffor saying here I deliver you seisin and possession of this house in the name of all the Lands and Tenements contained in this Deed according to the form and effect of this Deed. Or by words without any ceremony or act as the Feoffor being at the house door or within the house saying here I deliver you seisin c. in the name of seisin possession of all the Lands c. contained in this Deed. For if words may amount to a livery within the view much more it shall upon the land Fo. 48. a. 4. 41. E.
vide c. The Custome that enableth the Lord of a Manor to grant a greater estate enableth him to grant a lesser Omne majus continet in se minus H. 36. El. R. 492. Barnes B. R. A letter of Attorney may be contained in a Deed of feoffment beginning Omnibus Christ fidel c. for one continent may contain divers Deeds to severall persons but if it be by Indenture c. it is otherwise Though the Attorneys warrant be generall to deliver seisin yet hee cannot deliver seisin within the view for his warrant is intendable or implyed in law of an actuall and expresse livery and not of a livery in law P. 3. El. in C.B. in Yachams case Oportet quod donationem sequatur rei traditio etiam in vita donatoris donatorii Bract. l. 2. fo 16. Therefore a letter of Attorney to deliver livery of seisin after the decease of the Feoffor is voyd But this is to be understood of sole persons c. and not of a Congregation aggregate of many persons capable 18. H. 8. 3. 11. H. 7. 19. Sect. 67. There be two kinds of Wasts viz. Voluntary and Actuall or Permissive Waste may be done in houses by pulling them down or by suffering the same to be uncovered If the Tenant do or suffer Waste to be done in houses yet if he repair them before any action brought there lieth no action of Waste against him but he cannot plead quod non fecit vastum but the speciall matter If the tenant build a new house it is waste and if he suffer it to be wasted it is a new waste 42. E. 3. 21. If the tenant suffer the houses to be wasted and then fell down Timber to repair the same this is a double waste 44. E. 3. 44. F. N. B. 59. B. Note there is a waste Destruction and Exile Waste properly is in houses gardens and in timber-trees either in cutting of them down or topping of them or doing any act whereby the timber decaies The cutting of dead wood that is ubi arbores sunt aridae mortuae cavae non existentes marhemiuÌ„ nec portantes fructus nec folia in aestate is no Waste Dier 332. If the tenant cut down underwood as he may by law yet if he suffer the young germins to be destroyed this is destruction 20 E. 3. Waste 32. 10 H. 7. 2. Exile or destruction of Villains or tenants at will or making them poor where they were rich when the tenant came in whereby they depart from their tenures is Waste fol. 53. a. b. vide libr. If the estate of the reversion continueth not but is altered the action of Waste for Waste done before which consists in privity is gone An action of waste doth lie against the Assignees of tenant by the Curtesie and of tenant in Dower and against the Assignee of the Guardian in Chivalry in all other cases the action of waste shall be brought against him that did the waste fo 54 a. vide c. An Infant a Baron and Feme shall be punished for waste done by a stranger and so shall the wife that hath the estate by survivor for waste done by the husband in his life time if she agree to the estate F.N.B. 36. b. If a lease be made to A. for life the remainder to B. for life the remainder to C. in fee After the death or surrender of B. in the mean remainder an Action of waste doth lie But if a lease for life be made the remainder for years the remainder in fee an Action doth lie presently during the term in remainder But if a man make a lease for life or years and after grant the reversion for years the lessor shall have no Action of waste during the years for he himself hath granted away the reversion in respect whereof hee is to maintain his Action Otherwise it is if hee had made a lease in reversion which had been but a future interest c. Vide c. 4. E. 3. 18. F. tit Waste No Action of waste lieth against a Guardian in Soccage but an action of trespasse Nor against Tenant by Statute Staple c. or Elegit Stat. Marlebridge cap. 17. F. N. B. 59. E. See in the Register five severall writs of waste Two at the Common law for waste done by Tenant in Dower or the Guardian and three by speciall or statute Law for waste done by Tenant for life for years and Tenant by the courtesie Qui haeret in littera haeret in cortice Vide c. As tenant for half a yeer is within the remedy of Stat. Gloc. ca. 5. which giveth waste against a lessee for life or yeers Lessee for life the remainder to him for 21 yeers he hath both estates in him so distinctly as he may grant away either of them For a greater estate may uphold a lesser but not è converso fol. 54. b. If a man make a lease for life to one the remainder to his Executors for twenty one years the term for yeers shall vest in him For even as an Ancestor and an Heir are correlativa as to inheritance as if an estate for life be made to A. the remainder to B. in taile the remainder to the right heires of A. the fee vesteth in A. as if it had been limited to him and his heires even so are the Tâ—stators and Executors Correlativa as to any Chattel CHAP. VIII Of Tenant at will Sect. 68. EVery lease at will must be in law at the will of both parties Possessio precaria nuda pro voluntate domini potest revocari fol. 55. a. Fleta l. 3. Tenant at will shall reap the crop which he sowed in peace albeit the lessor doth determine his will before it bee ripe for that the estate of the lessee is uncertain and it is good for the Commonwealth that the ground be sown And this is not onely proper to a lessee at will but to every particular tenant that hath an estate incertain And therefore if tenant for life soweth the ground and dyeth his executors shall have the Corn. And the same law is for lessee for yeares of tenant for life So if a man be seised of land in the right of his wife c. his executor shall have the Corn. But if husband and wife bee joynt-tenants of the land and the husband soweth the ground and the land surviveth to the wife it is said that she shall have the Corn Dier 316. But where the estate of the lessee being incertain is defeasible by a right Paramount or if the lease determine by the act of the lessee as by Forfeiture Condition c There he that hath the right Paramount or that entreth for any forfeiture c. shall have the Corn. fol. 55. b. l. 5 106 If a disseissor sow the ground and sever the Corn and the disseissee re-enter he shall have the Corn because he entreth by a former title and severance or removing
7. fo 8. Calvins Case 5. In some actions Protection shall not be allowed by the Common Law as appeales of Felony and Mayhem so it is where the King is sole party c. And in a Decies tant where the King and the subject are plaintiff But in late acts of Parliament Protections in personoll actions are expressely ousted Bract. Lib. 5. 139. c. In a Writ of Dower unde nihil habet in a qu. imp or ass of Darr presentment in ass of no diss In a qu. non misit c. no protection is allowable Vide. By act of Parliament no protection shall be allowed in attaint nor in action against a Gaoler for an escape nor in pleas of trns. or other contract made c. after the date of the same protection 23. H. 8. ca. 3. Note in judiciall Writs which are in nature of actions where the party hath day to appear there a protection doth lie as in Writs of Scire fac upon Recoveries Fines Iudgements c. So it is in a quid Iuris clamat c. But in Writs of execution as habere fac Scis Elegit execution upon a Statute cap. ad Satisf Fieri fac There no protection can be cast for the defendant causa qua supra 13. E. 3. Prot. 72. 6. No Writ of protection can be allowed unless it be under the great Seal and it is directed generally Libr. 2. fol. 17. Lanes Case lib. 8. fol. 68. Trallops Case 35. Hen. 6 2. 7. The Courts of Justice are to allow or disallow of the Protection c. be they Courts of Record or not and not the Sheriff or any other Officer 43 E. 3. Prat. 96. 8. The protection may be cast by a stranger or by the party himself an Infant seme convert c. may cast a Protection for the tennant or Defendant And the Defendant or tenant casting it he must shew cause wherefore c. but a stranger need not shew any cause but that the tenant or Defendant is here by Protection 21. E. 4. 18. 38. H. 6. 131 9. A protection may be avoided 1. By the casting of it before it be allowed 2. By repeal thereof after it be allowed by disallowing of it mnny waies as for that it lieth not in that action or that he hath no day to cast it or for materiall variance between the Protection and the Record or that it is not under the Great Seal c. 3. After it be allowed by innotescimus as if any tarry in the country without going to the service c. over a convenient time after he had any Protection or repair from the same service upon information thereof to the Lord Chancellor he shall repeal the Protection by Innotescimus 13. R 2. cap. 16. 21. E. 4. 20. vide lib. fo 131. a b As to the third Protection cum clausula volhmus the King by his prerogative is to be preferred in payment of his duty or debt by his Debtor before any Subject Register 281. b. Thesaurus Regis est fundamentum belli firmamentum pacis By the Statute of 25 E. 3. cap. 19. the other creditors may have their actions against the King debtor and proceed to Iudgement but not to Execution unless he will take upon him to pay the Kings debt and then he shall have Execution for both the two debts But in some cases the Subject shall be first satisfied viz. where the King is intitled to any fine or duty by the suit of the party as in a decies tantum And so if in an action of Debt the Defendant deny his Deed and it is found against him he shall pay a fine to the King but the Plantiff shall be first satisfied 41. E. 3. 15. 4. E. 4. 16. 17. E. 3. 73. 29. E. 3. 13. The fourth Protection cum clasula volumus is when a man sent into the Kings service beyond Sea is imprisoned there so as neither Protection Profection or Moration will serve him and this hath no certain time limited in it F. N. B. 28. c. Of Protections cum clausula nolumus that are of Grace vide lib. 7. fo 9. Calvins Case Regist 280. The protection cum clausula nolumus that is of Right is That every Spirituall person may sue a Protection for him and his goods and for the Fermors of their lands c that they shall not be taken by the Kings Purveyor not their carriages or cattells taken by other Ministers of the King Which Writ doth recite the Statute of 14. E. 3. F. N. B 29 30. Albeit Queen Eliz. maintained many wars yet she granted few or no Protections and her reason was That he was no fit Subject to be employed in her service that was subject to other mens actions lest She might be thought to delay Iustice fol 131. b. Sect. 200. Vn home que est enter professe religion est civiliter mortuus or mortuus seculo To three purposes Profession i. e. the civill death hath not the effect of a naturall death 1. This civill death shall never derogate from his own grant nor be any mean to avoid it for if tenant in tail make a Feoffment in fee and enter into Religion his issue shall have no Formedon during his life 2. It shall never give her a vail without whose consent he could not have entred into Religion and therefore his wife shall not be endowed untill his naturall death But if the wife after her husband hath entred into Religion alien the land which is her own right and after her husband is deraigned the husband may enter and avoid the alienation 31 E. 1. Dower 176. 21. E. 4. 14. 3. It shall not work any prejudice to a stranger that hath a former right If a disseisor is professed so as the lands descends to his heir this discent shall not toll the entry of the disseisee A woman cannot be professed a Nun during the life of her husband 5 E. 4. 3. But if a man holdeth lands by Knights service and is professed c. his heir within age he shall be in Ward 31 E. 3. Collusion 29. If one joynt-tenant be professed c. the land shall survive to the other 21 R. 2. Judgement 263. An Abbot c. may sue and be sued c. for any thing that concerns the house of Religion Bract. fo 415. A wife is disabled to sue without her husband as much as a Monk is without his Soveraign 4 H. 3. Br. 766. And yet the wife of Sir Ro. Belknap Justice of the Common Pleas who was exiled beyond Sea did sue a Writ in her own name without her husband he being alive whereof one said Ecce modo mirum quod faemina fert breve Regis non nominando virum conjunctim robore legis 2 H. 4. f. 7. a. And King E. 3. brought a qu. imp against the Lady of Maltravers 10. E. 3. 53. And King H. 4. brought a Writ of Ward against Sibel B. 1. H. 4. 1. b. And Tho.
grantee shall not use one of them and leave the party to the other But where the grantee hath but one remedy that remedy cannot be barred by any proviso for such a proviso should be repugnant to the grant 28 H. 8. Dyer 9. b. And if a man by his Deed grant a rent Charge out of land provid that it shall not charge the Land albeit the grantee hath a double remedy yet the proviso is repugnant because the Land is expresly charged with the rent but the Writ of annuity is but implyed in the grant and therefore that may be restrained without any repugnant and sufficient remedy left for the grantee for which cause Littl. putteth his case of the restraint of bringing a writ of annuity Also our Author putteth his case of a rent charge continuing and of a rent charge issuing truly out of Land 9 H. 11. 53. 11. H. 8. c. mala grammatica non vitiat cartā For the Law that principally respecteth substance doth judge sometimes a double negative to be a negative according to the intent of the parties and not according to grammaticall construction Sect. 221. A. grants that B. shall distrein for such a yearly summe of money in his mannor of D. in judgemeet of Law the Mannor is charged with the rent but the person of the grantor cannot be charged because he expresly granteth no rent * for that would charge his person but that the grantee should distreine c. which onely chargeth the land Fo. 146. b. If a rent be granted out of the Manor of D. and the grantor grant over That if the rent be behind the grantee shall distrein c. in the Manor of S. this is but a penalty in the Manor of S. But both Manors are charged the one with the rent the other with the distresse for the rent the one issuing out of the land and the other to be taken upon the land lib. 7. fo 23 c. in Buts Case Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba expressa fienda est And if in this case this shall amount to the grant of a rent out of the Manor of S. then the grantor shall be twice charged and so the Law by construction against the words and the intention of the parties shall doe injury to the grantor c. fo 147. a. And there is no diversity in this case when the Manor of S. lyeth in the same county and when it lyeth in another county for the words in both cases are all one and there is no reason to say that he shall fail of a Recovery by Assize lib. 7. f. 3. Bulwars Case 1. Ass p. 10. Vide c. If a man grant a rent out of three acres and grant over that if the rent be behind that he shall destrain c. in one of the acres this rent is entire and cannot be a rent seck out of two acres and a rent charge out of the third acre and therefore it is a rent seck for the whole and yet he shall distrain for this in the third acre vide qu. A. doth bargain and sell land to B. by Indenture and before Inrolment they both grant a rent charge by Deed to C. and after the Indenture is inrolled by the operation of the Statute it shall be the grant of B. and the confimation of A. But if the Deed had not been inrolled it had been the grant of A. and the confirmation of B. and so quancunque via data the Grant is good Home seise de 20 acr grant rent 20 s hors de chesc acre c. le grantee aūa 20 l. 22. H. 6. 10. b. Sect. 222 c. Si home ad un rent charge a luy a ses heires issunt hors de cert ' terre sil purchase asc ' parcel de cel a luy a ses heires tout le rent charge est extinct l'annuity auxi pur ceo que rent charge ne port estr per tiel Manor apportion mes si tiel parcel discend c. S. 224. a le fits auterment est Auxi per purchase de parcel c. rent service point estre apportion A rent charge by the act of the party may in some case be apportioned As if a man hath a rent charge of 20 s. he may release to the tenant of the land 10 s. and reserve part for the grantee dealeth not with the land as in case of purchase Hill 14. Eliz. in Communi Banco F. N. B. 152. d. e. If tenant pur auter vie by his Deed grant a rent charge to one for 21 years Cesty que vie dyeth the rent charge is determined and yet the grantee may have during the years a Writ of annuity for the arrerages incurr after the death of Cesty que vie because the rent charge did determine by the act of God and by the course of Law Actus leg is nulli facit injuriam Wards cited in lib. 2. In Heywards case fo 36. There be divers kinds of rent services which are not within the Statute of Quia empt terrae and yet such rent services are apportionable by the common Law As if the lessor recover part of the land c. in an action of waste or enter for a forfeiture in part c. Lib. 6. f. 1. c. Bruerton c. Lib. 8. f. 105. c. Talbots case So likewise if the lessor grant part of the reversion to a stranger the rent shall be apportioned for the rent is incident to the reversion Lib. 8. fo 79. Wildes case A rent service may be extinct for part and apportioned for the rest but a rent service cannot be suspended in part by act of the party and in esse for other part For if the lessor desseise the lessee the rent is suspended for the whole and cannot be apportioned for any part But otherwise it is where the lessor enters lawfully as upon a surrender forfeiture c. Where the rent is lawfully extinct in part 21. E. 4. 29. And yet by act in Law a rent service may be suspended in part and in esse for part As if the tenant give a part of the tenancy to the Father of the Lord in taile the Father dieth and this discends to the Lord in this case by act in Law the Seigniory is suspended in part and in esse for part and the same Law is of a rent charge 30. Ass p. 12. And when the Guardian in chivalry entreth into the Land of his ward within age now is the Seigniory suspended but if the wife of the tenant be endowed c. Now shall she pay to the Lord the third part of the rent 33. E. 3. Dower 138 this case I should have put first Tho. More Item a Seigniory may be suspended in part by the act of a stranger as if two jointenants or corperceneis be of a Seigniory and one of them disseise the Tenant of the Land the other
wife notwithstanding the alienation of her husband Dyer 4 5. P. M. 146. 3 El. Dyer 191. l. 8. f. 71 72. Greveleys Case If the husband levy a Fine with Proclamations and dye the wife must enter or avoid the estate of the Conusee within five years or else she is barred for ever by the Statute of 4 H 7. for the Statute of 32 H 8. doth help the Discontinuancy but not the barre and the Statute speaketh of a Fine and not of a Fine with Proclamations 6 E 6. Dyer 72. b. 4 H 7. c. 24. Feme Tenant in Tail taketh husband the husband maketh a feoffment in fee the wife before entry dyeth without issue he in the reversion or remainder may enter For 1. The reversion or remainder cannot be discontinued in this case because the estate Tail is not discontinued 2. The words of the Statute be Shall not be prejudiciall c. to the wife or her heirs or such as shall have Right Title or Interrest by the death of such wife but the same wife and her heirs c. shall or lawfully may enter c. By which words the entry of him in the reversion or remainder in that case is preserved The husband is Tenant in Tail the remainder to the wife in Tail the husband make a feoffment in fee by this the husband by the Common Law did only discontinue his own Estate taile but his wifes remainder but at this day after the death of the husband without issue the wife may enter by the said action of 32 H. 8. If the husband hath issue and maketh a feoffment of his wifes land and the wife dyeth the heire of the wife shall not enter during the husbands life neither by the Common law nor by the Statute 8 E. 2 tit cui in vita 26 34. E. 1. ibid. 30. 10 E. 3. 12. Dy. 21. Eliz. 363. Sect. 565. Fo. 326. b. By the Statute of 11 H. 7. ca. 20. If the woman hath any Estate in tail joyntly with her husband or only to her self or to her use in any lands or haereditaments of the inheritance or purchase of her husband or given to the husband and wife in taile by any of the Ancestors of the husband or by any other person seised to the use of the husband or his Ancestors and shall hereafter being sole or with any other after taken husband discontinue c. the same every such discontinuance shall be void and that it shall be lawfull for every person to whom the interest title or inheritance after the decease of the said woman should appertaine to enter c. So as if such a feme Tenant in taile do make any discontinuance in fee in taile or for life although it be with warranty yet this doth not take away the entry after her death either of the issue or of him in reversion or remainder Vide Sect. 697. l. 3. fo 50 51. Sir George Brownes case and l. 3. f. 60 c. Lin. Coll. case P. 1. f. 176. Mildmayes case Dy. 3. 4. P.M. 146. 8 El. Dy. 448 15 El. 340. 19 El. 354. 20 El. 362. 27 H. 8. 23. l. 5. f. 79. Fitz. case and Grevelys case l. 8. fo 71 c. If Lands were intailed to a man and his wife and to the heirs of their two bodies and the husband had made a feoffment in fee and dyed and then the wife dyed this had been a discontinuance at the Common Law for the title of the issue is as heir of both their bodies and not as heir to any one of them and his entry must ensue his title or action But this is remedied by the Statute of 32 H. 8. Tenant in taile shall have a quod permittat 4 E. 3. 38. 43 E. 3. 25. 4 E. 4. 25. F. N.B. 124. And he shall have a writ of Customes and services le debet solet but shall not have it in the debt only 2 E. 2. droit 28. So he shall have a Secta ad molendum in le debet solet but not in the debet tantum F.N.B. 123. Tenant in taile shall have a writ of entry in consimili casu an Admesurement a nativo habendo cessavit escheat waste c. 21 E. 3. 11. 5 E. 3. 23. 11 H. 4. 49. But tenant in taile shall not have a writ of right sur disclaimer nor a quo jure nor a ne injuste vexes nor a nuper obiit or Rationabile parte nor a Mordanc nor a sur cui in vita for these and the like none but Tenant in fee shall have and the highest writ that a Tenant in taile can have is a Formedon 2 E. 3. droit 28. 13 H. 7. 24. 5 E. 4. 2. 20 E. 3. Avowry 13â— F.N.B. 10. 46 E. 3. cui in vita 33. Sect. 596 597. Fo. 327. b. It is provided by the Statues of W. 2. c. 1 De donis cond quod non habeant illi quibus tenementum sic fuerit datum potestatem alienandi c. So as these words non habent potestatem alien do work these effects viz. as to lands that a feoffment barreth not the issue of his action but worketh a discontinuance to barre him of his entry as to rents or any thing in esse that lye in grant that the said words do his power â—o make any discontinuance as to rents c. newly created that they take away his power to make them to continue longer than during his life 18 E. 3. 12. 24 E. 3. 28. 36 Ass 8. 5 E. 4. 3. 4 H. 7. 17. Pl. Com. Smith and Stapletons case But there is a diversity between alienation working a discontinuance of an estate which taketh away an entry and an alienation working divesting or displacing of estates which take away no entry As if there be Tenant for life the remainder to A. in taile the remainder to B. in fee if Tenant for life doth alien in fee this doth divest and displace the remainders but worketh no discontinuance and so note that to every discontinuance there is necessary a divesting or displacing the estate and turning the same to a right for if it be not turned to a right they that have the Estate cannot be driven to an action therefore such inheritances as lye in grant cannot by grant be discontinued because such a grant divests no Estate but passeth only that which he may lawfully grant and so the Estate it self doth descend revert or remaine as shall be said hereafter A. maketh a gift in tail to B. who maketh a gift in tail to C. C. maketh a feoffment in fee and dyeth without issue B. hath issue and dyeth the issue of B. shall enter for albeit the feoffment of C. did discontinue in reversion of the fee simple which B had gained upon the estate tail made to C. yet it could not discontinue the right of entaile which B. had which was discontinued before and therefore when C. died without issue
7. H. 7. 2. Upon an execution against the husband for his debt the Sheriffe may sell the terme during her life but the husband can make no disposition thereof by his last Will. Also if he make no disposition or forfeiture of it in his life yet it is a gift in Law unto him if he do survive his wife but if hee make no disposition and die before his wife she shall have it again and the same Law is of Estates by Statute Merch. Stap. Eleg. and other Chattels realls in possession l. 8. fol. 96. Matthew Mannings case But if the husband charge the Chattell reall of his wife it shall not bind the wife if she survive him 7. H. 6 1. If a feme sole be possessed of a Chattell reall and be thereof dispossessed and then taketh husband and the wife dieth and the husband surviveth this right is not given to the husband by the intermarriage but the Executor or Administrator of the wife shall have it so it is if the wife hath but a possibility vide Sect. 58. And so it is if the wife be possessed of Chattell reals in auter droit as Executor or Administrator or as Guardein in Socage c. Pl. Com. 294. Osbornes case and fo 192. b. Wrotesleyes Case In the same manner if a woman grant a term to her own use taketh husband and dieth the surviving husband shall not have this trust but the Executors or Administrators of the wife for it consisteth in privity P. 22. El. in Cancell Withams case Chattels reals consisting meerly in action the husband shall not have by the intermarriage vnless he recover them in the life of the wife albeit he survive the wife as a Writ of Right of Ward a valore maritagij a forfeiture of Marriage c whereunto the wife was intituled before the Marriage But Chattels reals being of a mixt nature viz. partly in possession partly in action which happen during the Coverture the husband shall have by the intermarriage c. As if the husband be seised of a rent-service charge or seck in the right of his wife the rent become due during the Coverture the wife dieth the husband shall have the arrerages but if the wife survive the husband she shall have them and not the executor of the husband 13 E. 3. Qu. imp 57. 14 H. 4. 12. F. N. B. 121. 11 R. 2. Account 49. 12 R. 2 Breve 639. 5 E. 3. Exec. 99. So it is of an Advowson if the Church become void during the Coverture he may have a Qu. Imp. in his own name as some hold but the wife shall have it if she survive him and the husband if he survive her 50 E. 3. 13. 28 H. 6. 9. 7 H. 7. 2. Now by the statute of 32 H. 8. cap. 37. if the husband survive the wife he shall have the arrerages as well incurred before the marriage as after l. 4. 51. Ognels case H. 17. El. Rot. 457. in Com. B. Sharps case f. 351. b. But the marriage is an absolute gift of all chattels personals in possession in her own right whether the husband survive the wife or no but if they be in action as debts by Obligation Contract or otherwise the husband shall not have them unlesse he and his wife recover them And of personal goods en auter droit as Executor or administrator c. the marriage is no gift of them to the husband although he survive his wife 21 E. 4. 4. 11 H. 7. 4. 26 H. 8. 7. 43. E. 3. 10. 4 H. 6. 5. 16 E. 4. 8. If an estray happen within the Manor of the wife if the husband dye before seisure the wife shall have it for that the property was not in the wife before seisure 21 E. 3. 8. vide 10 H. 6. 11. But note a diversity between a property in personal goods and a bare possession for if personal goods be bailed to a feme or if she finde goods or if goods come to her hands as executor to a Bailiff and taketh a husband this bare possession is not given to the husband but the action of detinue must be brought against the husband and wife 39 E. 3. 17. Sect. 666. Fol. 351. b. By this case it appeareth That albeit there be no moities between husband and wife yet this is a Remitter presently and standeth not upon the survivor of the wife as some have thought for if the estate gained by intermarriage be a sufficient estate to work a Remitter à fortiori an estate made to the husband and wife shall work a Remitter in the wife And so it is if Tenant in Tail infeoff his issue being within age and his wife in fee and dieth this is a Remitter to the issue presently by the death of Tenant in Tail though some have thought the contrary 21. E. 3. 26. 29. E. 3. 43. 19. E. 3. Remit 14. 35. Ass 12. 26. E. 3. 69. vide 676 Sect. 11. R. 2. Remit 12. 44. E. 3. 17. Sect. 667. Fol. 352. a. Estoppel ie a Conclusion because a mans own act or acceptance stoppeth or closeth up his mouth to alleage or plead the truth l. 2. fo 4. b. Goddards Case Vide S. 41. 693 695 679. Note three kindes of Estoppel 1. By matter of Record viz. by Letters Patents Fine Recovery Pleading taking of Continuance Confession Imparlance Warranty of Attorney Admittance 43. Ass 29. 8. H. 4 7 8. 22. Ass 54. 15. E. 3. Estop 239. 4. E. 3. ib. 133. 2. By matter in writing as by Deed indented by making of an Acquittance by Deed indented or Deed Poll 4. H. 4. 1. 8. H. 7. 6. 13. H. 7. 24. 15. E. 4. 28. 41. E. 3. Estop 12. 12. R. 2. Estop 21 2. by Deseasance by Deed indented or Deed Poll. 8. R. 2. Estop 283. 35. H. 6. 18. 3. H. 6. 16. 16. H. 7. 5. 34. H 6. 19. 14. H. 4. 29. 3. By matter in paiis as by Livery by Entry by Acceptance of rent by Partition and by acceptance of an estate as here in the Case that Littleton putteth whereof Littleton maketh a speciall Observation That a man shall be estopped by matter in the Countrey without any writing Note these few Rules concerning Estoppels 1. That every Estoppel ought to be reciprocal i. e. to binde both parties and this is the reason that regularly a stranger shall neither take advantage nor be bound by the Estoppel 33 H. 6. 19. 50. 30 H. 6 2. 31 E. 3. Estoppel 240. 33. Ass 18. 30. Ass 51. 14. Ass 9. 18. E. 4. 1. Privies in blood as the heir privies in estate as the feoffee lessee c. privies in Law as the Lords by escheat Tenant by the Curtesie Tenant in Dower the Incumbent of a Benefice and others that come under by act in Law or in the post shall be bound and take advantage of Estoppels and that a Rebutter is a kinde of Estoppel 8 Ass 53. Br. Fines 73. 8 H. 617. 21 E. 3. 35. 38. E.
331. 20 E. 3 Estop 187. 2. That every Estopple because it concludeth a man to alleage the truth must be sertain to every intent and not to be taken by argument or inference 21 E. 4. 4. 23. Ass 14. 17 H. 6. Estop 273. 18 E. 3 30. 7 H. 6. 7. 16. 3. Every Estoppel ought to be a precise Affirmation of that which maketh the Estoppel and not be spoken impersonally as if it be said Vt dicitur quia impersonalitas non concludit nec ligat 46. 3 E 33. 29 Asse 38. Pl. Com. 398. neither doth a recital conclude because it is no direct Affirmation 35. H. 6. 33. 46. 3 E 12 49 E. 3. 14. 8. Ass 3. 45. Ass 5. 3. El. Dyer 196. 11 El. Dyer 280. 9 H. 6. 60. 4. A matter alleaged that is neither traversable nor material shall not estop 5 E. 4. 7. 8 E. 4. 19. 10 E. 4. 12. 22 E. 4. 38. 32 Ass 9. 35 H. 6. 20. 5. Regularly a man shall not be concluded by acceptance or the llke before his Title accrued 33 H. 6. 16. 4 E. 3. 22. 6 H. 4. 7. 31 E. 1. Gard 155. F.N.B. 142. E. 6. Estoppel against Estoppel doth put the matter at large 12 H. 7. 4. 20 H. 6. 29. 3 H. 4. 9. 41 E. 3. 4 11 H. 4. 30. 7. Matters alleaged by way of supposal in Counts shall not conclude after Non-suit otherwise it is after Judgement given and after Non-sute albeit the supposal in the Count shall not conclude yet the Barre Tittle Replication or other pleading of either party which is precisely alleaged shall conclude after Non-suit and hereby are the Books reconciled 2 R. 3. 14. 2 R. 2. Estop 10. 40 E. 3. 21. 128..4 13. 18 E 3. 31. 35. 44 E. 3. 45. 17 Ass 27. 45 E. 3. 2. 21 H. 7. 14. 5 E. 4. 7. â— E. 4. 19. 3 E. 4. 11. 4 E 3. 54. 7 E. 6. Br. Fstop 162. 11. H. 4. 30. 30 E. 3. 21. 31 Ass 14. 8. Where the verity is apparent in the same Record the adverse party shall not be estopped to take advantage of the truth for he cannot be estopped to alleage the truth when the truth appeareth of Record If a Fine be levied without any Original it is voidable but not void but if an Original be brought and a Retraxit entred and after that a concord is made or a Fine levied this is void in respect the veriety appeareth of Record 37 Ass 17. 38 H 12. 3 El. Dyer 222. An Impropriation is made after the death of an Incumbent to a Bishop and his Successors the Bishop by Indenture demiseth the Personage for fourty yeers to begin after the death of the Incumbent the Dean and Chapter confirm it the Incumbent dyeth this demise shall not conclude for that it appeareth he had nothing in the Impropriation till after the death of the Incumbent 7 Eliz. Dyre 244. 9. Where the Record of the Estoppel doth run to the disability or illegittimation of the person there all strangers shall take benefit of the Record as Outlawry excommengement Profession Attainder of Praemunire of Felonies c. Bastardy Mulierty and shall conclude the party though they be strangers to the Record Vide Sect. 196. 197 e. But of a Record concerning the name of the person quality or addition no stranger shall take advantage because he shall not be bound by it But Nota Reader That in case of the Mulierty prima facie an estranger shall take benefit of it c. But yet because he may be a Mulier by the Ecclesiastical Law and a Bastard by the Common Law therefore against such a Certificate pleaded the adverse party may alleage the special matter and confesse the Certificate of the Bishop according to the Ecclesiastical Law and alleage further the special matter according to the Common Law whereunto the adverse party must answer and so are the Books reconciled Bract. fo 420. 26 Ass 64. 39 Ass 10. 11 H. 4. 84. 7 H. 6. 7. 33 Ass 5. 11 E. 3. Estop 2 29. 21 E. 3. 39. 19 R. 2. Estop 28. 2. 3 E. 23. 3. ib. 33 E. 3 Estop Statham Stat. 9 H. 6. c. 11. 30 H. 6. 2. D. St. 69. 34 H. 6 39. 18 E. 4. 2 b 10 E. 4. 16. Sect. 669. Fol. 353. a. When a feme covert is received she shall plead as if she were sole and this is regularly true yet holdeth not in all cases for if a feme covert be received in an Assize and plead a Record and fail therefore she shall not be adjudged a disseisor as she shoud be if she were sole c. 37 Ass 1. So if a feme covert onely levy a Fine executory and a Scire fac is brought against her and her husband if she be received upon the default of her husband she shall barre the Conusee which if she had been sole she could not do and in some other cases 17 Ass 17. 29 E. 3. 43. 5 E. 3. 138 Voucher Again If the husband levy a Fine of his wives land and the Conusee grant and render the land to the husband and wife although the wife be not party to the Original nor to the Conusans and therefore she ought not by the Law to take any present estate but by way of remainder onely yet here it is proved by Littleton That the grant and render de fecto to the wife in presenti is not void for then it could not work a Remitter but voidable by Writ of Error and that avoidable estate doth work a Remitter T. 27 El. inter Owen Morgan Rot. 276. in Com. B. l. 3. f. 5. Marg. of Winchesters Case 7 E. 3. 64. 13 E. 3. Vouch. 119. Vide Sect. Sect. 670. Fo. 353. b. Si Baron feme fesont un conusance de droit a un auter c. ou fesoyent un grant render a un auter ou release per fine a un auter c. lou le droit del feme passera del feme per forne de mas le fine en tout tiels cases le feme serre examin devant que le fine soit accept pur ceo que tiels fines concludont tiels femes coverte a touts jours c. mes lou riens est move en le fine forsque tantsolement que le Baron la feme pregnant estate per force de mes le fine ceo ne concludam la feme pur ceo que en tiel case el jameres ne serre my examine c. 15 E. 4. 28. 14 E. 3. 31. Therefore if the husband and wife be Tenants in speciall Tail and they levy a Fine at the Common Law and after the husband wife take back an estate to them and their heirs in this case the estate Tail is not barted and yet against a feme levied by her self she cannot be remitted because thereupon she was examined but in that case if the land descend to her issue he shall be remited â—9 E. 3.
5 E. 3. enter cong 42. 15 E. 3. Age 95. 41 E. 3. 18. pe Finchden 22 E. 3. 2 b lib. 1. 15. Sir William Pelhams case Since our Author wrote the statute of 14. El. cap. 8. hath been made concerning this matter Vide l. 3. 60. Lib. 1. fo 15. And Nota That although the discontinuâ—â— groweth by matter of Record yet the Remitter may be brought by matter in paiis Sect. 676. Autor al. Contr. 44 E. 3. 17. 44 Ass 2. 43 Ass 3. Vide Sest 6â—6 Sect. 677. Fo 356. b. In this case the estate is in the feme covert presently by the livery before any agreement by the husband 15. 4. 1. b. 7 H. 6. 17. 1 H. 7. 12. b. 39 E. 3. 30. 57 H. 8. 24. If the wife survive her husband she cannot claim in by the purchase made during the coverture but the law adjudgeth her in her better right 41 E. 3. 18. But if both estates be waivable there albeit the wife prima facie is remitted yet after the decease of her husband she may elect which of the Estates she will As if lands be given to the husband and wife and their heirs the husband make a feoffment in Fee * the Feoffee giveth the husband and wife and the heirs of their two bodies the husband dieth 18 El. Dy. 351. * the Feoffee giveth land to the husband and wife c. If Lands be given to a man and the heirs females of his body and he maketh a feoffment in fee and take back an estate to him and his heirs and dyeth having issue a daughter leaving his wife grossement enseint with a Son and dieth the daughter is remitted and albeit the son be afterward borne he shall not devest the Remitter Sect. 678. Fol. 357. Covin and consent in many cases to do a wrong do choak a meer right and the ill manner doth make a good matter unlawfull 18 E. 4. 2. b. Covina is a secret assent determined in the hearts of two or more to the defrauding and prejudice of another Pl. Com. 546. Wimb If a Disseisor Intrudor or Abator do endow a woman that hath lawful Title of Dower this is good and shall binde him that right hath if there were no covin or consent before the disseisin c. 44 E. 3. 46. 11 H. 4. 60. 44 Aff. 29. 19 H. 8. 12. 18 H. 8. 5. 11 E. 4. 2. 7 H. 7. 11. In all cases where a man hath a rightfull and just cause of action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the covin doth suffocate the right so as the recovery though it be upon a good Title shall not binde or restore the Demandant to his right 41 Ass p. 28. 25 Ass p. 1. 27 Ass 74. 15 E. 4. 4. a. 12. Ass p. 10. If Tenant in Tail and his issue disseise the discontinuee to the use of the Father and the Father dieth and the land descend to the issue he is not remitted against the discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraign the first Warranty 11 E. 4. 2. 15 E. 4. 23. 14 H. 8. 12. 33 H. 6. 5. 12 E. 4. 21. b. A. and B. joyntenants be intituled to a real action against the heir of the disseisor A. cause the heir to be disseised against whom A. and B. recover and sue execution B is remitted for that he was not party to the covin and shall hold in common with A. but A. is not remitted fo 357. b. Nota it is regularly true That a feme covert cannot be a disseisoress by her commandment or procurement precedent nor by her assent or agreement subsequent but by her actual entry or proper act she may be a disseisoress And therefore some do hold that Littleton must be intended that the husband and wife were present when the disseisin was done and others do hold that Littleton is good Law albeit she were absent for if that her procurement or agreement be to do a wrong to cause a Remitter unto her in this special case she shall fail of her end and remitted she shall not be but in this special case she shall be holden as a disseisoress by her covin and consent quatenus to hinder a Remitter F.N.B. 179. g. 12. E. 4. 9. 35 Ass 5. 44. E. 3. 9. 23. 13 Ass 1. Temps E. 1. Waste 128. 16. Ass p. 7. 21. E. 4. 53. 21. H 7. 35. 3. H. 4. 17. Sect. 679. Vide Pl. Com. Amy Townsends Case 12. R. 2. Remit 12. Sect. 680 681. fol. 358. Here note five things 1. That a remainder expectant upon an estate for life worketh no Remitter but when it falls in possession for before his time he can have no action and no Freehold in him 18. H. 8. 3. 2. Though the woman might wave the remainder yet because she is presently by the death of the husband Tenant to the praecipe it is within the rule of Remitter and her power of waiver is not material 3. That a Freehold in Law being cast upon the woman by act of Law without any thing done or assented to by her doth Remitter her albeit she be then sole and of full age vide S. 447. 4. That a Praecipe lieth against one that hath but a Freehold in Law 5. That a woman shall be endowed where the husband hath the inheritance and but a Freehold in Law Brit. 83. b. Sect. 682 683 684 685. Fo. 359. Vide 12. E. 4. Compare these four Sections well together A man absent can neither take Livery nor make Livery without Deed Temps H. 8. Feoffments Br. 72. 40 E. 3. 41 .10 E. 4. 1. a. 15 E. 4. 18. 18 E. 4. 12. 22 H. 6. 12. Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur Et le fits nient conusant de ceo ne agrea a le feoffment c. Here it appeareth That if the Son be Conusant and agreeth to the Feoffment c. This is no remitter to him Vide Sect. 682. If A. be seised in Tail and have issue two Sons and by Deed indented between him of the one part and the Sons of the other part maketh a lease to the eldest for life the remainder to the second in fee and dieth and the eldest Son dieth without issue the second Son is not remitted because he agreed to the remainder in the life of the Father or if the like estate had been made by paroll if in the life of the Father the Tenant for life had been impleaded and made default and he in the remainder had been received and thereby agreed to the remainder after the death of the Father and the eldest Son without issue the second Son should not be remitted because he agreed to the remainder in the life of the Father Sect. 685. Fol. 360. a. Acts of Parliament are to be so construed
person attainted of misprision of Treason Murther or Felony is dowable since our Author wrote by the Statute of 1 E. 6. cap. 13. 5 E. 6. cap. 11. 5 El. ca. 1. 11. 18 El. cap. 1. 12 H. 4. 3. Vide Sect. 55. So if a Seigniory be granted with warranty and the Tenancy escheat the Seigniory whereunto the warranty was annexed is extinct and consequently the warranty defeated and it shall not extend to the land sic in similibus 6 H. 4. 8. 45 E. 3. vouch 72. Pl. Com. 292. 16 E. 3. Age 46. 28 H. 3. vouch 281. 23 E. 3. garr 77. Vide Sect. 200. If a collaterall Auncestrel release with warranty and enter into Religion now the warranty doth binde but if after hee be deraigned now it is defeated Sect. 748. Fol. 393. Per release de touts manners de garr ou de touts covenants reall ou de touts demandes le garr est extinct Et mults auters cases matters y sont per queux home poit defeate garr c. As by a defeasance as other things executory may Also a warranty may lose his force by taking benefit of the same 43 E. 3. 17. Pl. Com. Brownings case In a Precipe the tenant voucheth and at the sequatur sub suo periculo the tenant and the vouchee make default whereupon the demandant hath judgement against the tenant and afterwards the demandant brings a Scire facias against the tenant to have execution In this case the Tenant may have a War Cartae And if in that case a stranger had brought a praecipe against the Tenant hee might have vouched again for by the judgement given against the Tenant the warranty lost not his force but if the Tenant had judgement to recover in value against the vouchee he should never vouch again by reason of that warranty because he had taken advantage of the warranty and it is to be observed that upon the processe of Summon ad warr if the Sheriffe return the vouchee summoned and he make default the Tenant shall have a Capias ad val but if he return that the vouchee had nothing then after the Sicut alias plures a seq sub suo periculo shall issue and there if the vouchee make default the Tenant shall not have judgement to recover in value for he was never summoned and it appeareth of Record that he hath nothing but in the Cap. ad Val. it appeareth that he had Assets and he had been summoned before But in some speciall cases there shall be two recoveries in value upon one warranty As if a disseisor give lands to the husband and wife and to the heirs of the husband the husband alieneth in fee with warranty and dieth the wife bringeth a Cui in vita the Tenant vouch and recover in value if after the death of the wife the disseisee bring a praecipe against the Alienee he shall vouch and recover in value again So it is where the wife bringing a Writ of Dower against the Alienee he shall recover in value and after her death hee shall recover in value again upon the same warranty 45 E. 3. vouch 72. In the same manner it is if a man be seised of a rent by a defeasible title and release to the Tenant of the Land all his right in the Land and warrant the Land to him and his heirs if he be impleaded for the rent he shall vouch and recover in value for the rent and if after he be impleaded for the Land he shall vouch c. again for the Land But in these and the like cases the reason is in respect of the severall Estates recovered but for one and the same estate he shall never recover but once in value and though the Land recovered in value be evicted yet he shall never take benefit of that warranty after and as warranty may be defeated in the whole so they may be defeated as to the party of the benefit that may be taken of the same As he that maketh a warranty may make a defeasance not to take any benefit by way of voucher In the like manner that he shall take no advantage by way of Warrantia Cartae or by way of Rebutter 7 H. 6. 43. 13 Ass 8. 13 E. 3. gar 24 25. 3. 7. 22 H. 6. 51. 8 H. 7. 6. Sect. 749. If Tenant in Tail alien with warranty and leave Assets to discend if the issue in Tail doth alien the Assets and die the issue of that issue shall recover the Land because the lineall warranty descends onely to him without Assets for neither the pleading of the warranty without Assets nor Assets without warranty is any barre in the Formedon in the descender But if the issue to whom the warranty and Assets descended had brought a Formedon and by judgement had been barred by reason of the warranty and Assets In that case albeit he alieneth the Assets yet the estate Tail is barred for ever for a barre in a Formedon in the descender which is a Writ of the highest nature that an issue in Tail can have is a good barre in any other Formedon in the descender brought afterwards upon the same gift Temps E. 1. gar 89. 34 E. 1. ib. 88. 11 E. 2. ib. 3. 4 E. 3. 24. 5 E. 3. 14. 40 E. 3. 9. 14 H. 4. 39. 24 H. 8. a. Br. 33. 4. M. Dy. 139. l. 10 37 38. Mary Portingtons case Epilogus Nulla virtus nulla scientia locum suum dignitatem conservare potest sine modestia Ratio est anima legis If by study and industry we make not the reason of the Law our own it is not possible for us to retain it in our memories And we must couple arguments and reasons together Quia Argumenta ignota obscura ad lucem rationis proferiaâ—â— reddunt splendida Sir Richard Hankford 11 H. 4. 37. Home ne scavera de quel mettal un campane est sine soit bien bate ne le ley bien conus sans disputation Jeo aye disputir cest matter pur la apprender la ley 41 E. 3. 22. Kirton Vide Sect. 377. Lex plus laudatur quando ratione probatur Lex est sanctio sancta jubens honesta prohibens contraria Vide cest definitio Lib. 1. fo 131. Chudleighs Case Al unique Dieu gloire FINIS An Alphabetical Table A ALien may purchase what and how p. 2 Attainder how it corrupteth the blood 7 Arguments legal 11 Arguments from Statutes ib. Advocatio what 15 123 Advocatio medietatis ib. Armories how descendable 20 Authority with interest or without the difference 63 Attorney to deliver seisin ib. Accessaries where 67 Ages their several purposes in the Law 95 Agreement and Disagreement the time for the confirming Matrimony the equal Obligation 96 Agriculture its commendation 98 Actus Legis 100 Aetas Legitima 101 Alienatio restricta 106 Acquittal quotuplex 107 Appendant and Appurtenant their differences 125 126 Alienee plead where