in a Formedon and dies the son born cannot enter or have Execution But if the Issue in tail recovers against the Discontinuee and after is attainted of Felony his Issue shall enter or sue Execution for he is privy in Estate Tenant in tail recovers in value by Voucher of the donor and is attainted of Felony his Issue shall not have Execution If the Son hath the Land of the Father and of another in Execution upon a Statute and the Land descend from the Father to the Son the whole Execution is discharged In Judgement for debt the party shall not have Execution but of that Land only which he had at the time of the Judgement and not at the time of the purchase of the Writ But in debt against the Heir if he aliens hanging the Writ it shall be liable to the Execution although the alienation was before the Judgement for the Action was conceived against him in consideration of the land but in the first case it was in respect of the person The Conisor of a Statute is in Execution and his Land also the Conisee releases to him all debts the Execution is discharged by this Release for the debt was in being until it was levied of the profits but though the Execution be discharged by the party yet until it be discharged in fact if the Goaler had suffered him to go at large he could not have said but that he was in Execution Executors IF a Lease for years be made reserving a Rent upon Condition of Re-entry for not payment If the Executor breaks the Condition so that the Lessor re-enters it is a Devastavit in them otherwise if the Condition were performable on the part of the Lessor Br. Extinguishment 54. for every voluntary act of the Executor by which the Goods of the Testator are consumed without any benefit to the Testator is a Devastavit But if an Executor having such a term as Executor purchaseth the Reversion that is not a Devastavit for the Term as to Assetts is in being still If a man Mortgages his Term and dies and his Executors do not redeem it some think it is a Devastavit If they have Assetts in their hands wherewith to redeem it and the Term be better than the price of the Redemption so if an Executor sells a term under the value by which the Creditors lose their Debts this some think is a Devastavit But if a man be possest of a term and devises it to his Executors to be sold Meliori modo quo possunt for payment of his Debts they sell it under the value that is no Devastavit for it may be it was the best price they could get If Husband and Wife make a Lease of the Wives Land reserving a Rent the Husband distreins and avows and has a Return and dies the Cattle are discharged for the Executors cannot have them for they are but as a Pledge and being the Executors cannot pretend any Right to the duty they cannot detain the Pledge for the Wife is to have the Duty Vide 33 H. 6. 48. If a Rent Charge be granted in Fee the Grantee dies without Heir the Executors shall not have an Action of Debt for the Arrerages But if the Grantee had brought a writ of Annuity and Recovered then the Executors should have an Action of Debt for the arrerages for if the Inheritance of a Rent determins the Arrerages are extinct otherwise of an Annuity If a Grant be made of a Robe or twenty shillings and the Grantee dies before Election his Executors cannot demand the Arrears The Executors of a Grantee for years of a Rent Charge shall have Election either to have an Action of Debt or Annuity If a man be bound in twenty pound and his Executors have but ten pound an Action of Debt lies against the Heir for all for if he chooseth the Executor he cannot sue the Heir for the Remnant If an Obligor in twenty pound hath Goods to the value of ten pounds only and makes the Obligee his Executor he shall retain that as parcell of the Duty and for the rest bring his Action against the Heir for it is by the act of the Law that the duty is apporcioned If A. by Deed gives the Mannor of D. with all the Woods to B. if Livery be not made the Executors shall have the Woods If there be two Wills and the Executor of the last refuseth before the Ordinary yet the first is revoked by the intent of the Testator If the Executor Releases a duty of the Testator this is so much an Administration so that he cannot after refuse but yet if he doth after avoid the Release he may refuse A Lease for life is made rendring a Rent at Mich and the Annunc the Land is sowen at Mich and the Lessee dies if the Executors shall have the Land untill the Corn be ripe if they ought to pay the Rent Some think the Lessor may have an Action upon the case for the Executors have the profits of the Land c. and no fault in the Lessor As if a gift in tail be made Reserving thirty Shillings and the Donee dies without Issue and the Wife is endowed she shall pay ten shilshillings and yet the Estate is determined but she claims under the Estate of the Husband A man makes a Lease for life reserving a Rent upon Condition that if the Rent be behind that the Lessor shall enter and retain untill he be satisfied of the Arrears he enters and dies his Executors shall not retain for the Arrears were not Chattles at the beginning and therefore they shall not retain the Land as a Gage as they shall do for the double value for that was a Chattle at the beginning But in the first case the Arrears are given to the Executors by the Statute of 32 H. 8. Yet being the Arrears were no Chattles at the first and so not due to them by their own nature therefore they shall not retain As in 15 E. 4. 10. In Rescous there it is said if the Defendant in a Replevin avows for a Rent due to him and his Wife and upon that he hath a Return and dies the Tenant shall have his Cattle back again without any Agreement because the Executors could not have the distresse being they could not have the Rent but the Wife was to have it If an Executor delivers a Legacy upon Condition it is no good delivery The Debtee and another are Executors to the Debtor the Debtee recovers against the other and after Administers with the other and then sues Execution by Scire facias If the other shall have an Audita Querela and in whose name it shall be sued or if the property shall be altered in the Recoveror or if Execution be discharged but some think that Execution cannot be stopt but the Recoveror shall have it to the use of the Testator Vide Condition Debt Extinguishment THe Tenant holds ten Acres by ten
two the other Moity to the other two the first two are Jointenants with themselves and Tenants in common with the last two and so è converso they are Jointenants of a Moity and Tenants in common of the whole and two Praecipes shall be sued against the four and by the four but for the two joint Praecipes for and against them Jointenants TWo Jointenants in Fee one a Minor makes a Lease for life he of full age dies the other recovers a Moity in a Dum fuit infra c. Tenant for life dies the Heir of the other Jointenant enters the Infant outs him he brings an Assize some think it is maintainable For when he brought a Dum fuit infra c. and recovered a Moity now he defeats the Lease for his moity and makes it as if the other had made the Lease for life only which makes a severance of the Jointure Two Jointenants by twelve pence one grants all that belongs to him upon Condition the Lord grants the Seignory of one with Atturnment the Feoffor Enters for breach of the Condition he shall hold by twelve pence and the other by twelve pence also for there is no Apporcionment Though one Jointenant cannot infeoffe his Companion yet his Companion and another he may and the Livery made to the other shall vest the Estate in both If a Reversion be granted to Tenant for life and a stranger the Jointure of the Fee is severed for Tenant for life hath a Fee in the moity Executed If the Reversion be granted to Tenant in tail and a Stranger the Fee remaines in Jointure And if the Husband be Tenant for life and the Reversion is granted to him and his Wife the Jointure remains for there is no Moities between them If a Lease be made to two Habendum one Moity to one the other to the other for life and after a Confirmation is made to them and their Heirs the Joynture of the Fee is severed for the Confirmation inures according to the Nature of the Estate But if the Reversion had been granted to them in Fee they had been Joyntenants for the particular Estate had been drowned If there be two Tenants in Common for life and the Reversion is granted to two Jointly and one Purchaseth the Estate of one Tenant for life and the other of the other The Joynture is severed For the Purchase being at severall times presently upon each purchase the fee was executed If a Seignory be granted in fee to two one takes an Estate of the Tenancy pur auter vye cesty que vye dies The Jointure remains because they were Jointenants at the beginning Two Jointenants for life and one is bound in a Statute and then grants his Estate yet it is liable to execution during his life but 't is otherwise of an Estate for years for in the one the Land is bound by the Statute in the other not If a Recovery be had against one Jointenant his Companion shall not avoid it for the Right was bound but it is otherwise of Charges for the possession is only chargeable If one Jointenant in Fee takes a Lease by Indenture of his Moity from a stranger the Survivor shall avoid it Land is given to two and the Heirs of their bodies the remainder to their right Heirs they are not Jointenants of the Fee If one Jointenant makes a Lease for five years on Condition that the Lessee doth such an Act by a day he shall have for twenty years and he dies before the day the Condition is void as to the Survivor If there be two Jointenants for life one makes a Lease for years and dies the Survivor shall not avoid it for the same Estate which he had continues now and there is no difference if they had a Feesimple some think the contrary for the Survivor hath not the Freehold of his Companion as he hath the Fee where they are Jointenants in Feesimple for his Estate determins by his death But all agree that if A. and B. be Jointenants for the life of C. and A. makes a Lease for life and dies B. shall not avoid it for the Estate which he had continues Two Jointenants in Fee are disseised by the Father of one who dies and the son enters he is remitted to all the land his Companion shall enter with him And it is not like the case where two are disseised and a Dissent cast during the Nonage of one and he enters and is remitted for a Moity his Companion shall not enter because that this priviledge is given him in respect of his person more than in respect of the Land Neither is it like the case where Tenant in tail enfeoffs one Daughter and she dies she being within age she is remitted and yet her Companion shall not have Advantage of it because the Right was not in them before If a Fem Jointenant for years takes Husband and she dies the Survivor shall have all Two Jointenants of two Acres the Land is confirmed to them in Fee of one Acre to the use of one and of the other to the use of the other they are severall Tenants of the Freehold of the Acres for the Freehold is drownd to the Confirmation to the use Tenant for life makes a Lease for life the remainder to his Lessor and a Stranger they are not Jointenants but the Stranger shall take all for he could not give a Fee to him that had it before As if Tenant in tail infeoffs the Donor or if one Jointenant his Companion and a Stranger the Stranger takes all If two Jointenants makes a Lease for life and one grants his part of the Reversion during the life of the Lessee some think this is a severance of the Jointure If one Jointenant makes a Lease for years the Remainder to the right Heirs of A. if the Lessor dies in the life of A. the Survivor shall have the Reversion for the Lease for yeares was no severance of the Jointure neither could it support the contingent remainder Judgement IN Debt upon a Recovery in trespass the plaintiff recovers there where the action was brought a Writ of Error depending in B. R. upon trespass and after the Judgement given in debt the Judgement in trespass is reversed Quaere what remedy he shall have for the debt recovered for it is a Recovery in the C. B. which he cannot reverse in another Court and though he might yet the Execution of the debt being past he cannot be restored to that by the Reversall in the first Writ of Error in the trespass Lease IF a Lease be made for years and after the Lessor makes another Lease for life to commence after the end of the term the second Lease is void although there be Atturnment for a Freehold cannot passe out of any person that hath a greater Estate reserving an Estate until the Freehold commences but if the Lease had been but for years it had been otherwise
Apporcionment 11 Arrerages 16 Assent ibid. Assetts 17 Assignee 18 Attainder 19 Atturnment 24 Avoid 29 Avowry 31 Authority 33 B BArr 34 Bargain and Sale ibid. Baron Fem. 35 Bastard 44 Bona Felonum c. 51 Borough English ibid. C CHarge 52 Claim 57 Capacity 59 Cessavit ibid. Cessante causa c. 60 Common vide Apporcionment Condition 61 Confirmation 72 Continuall Claim 78 Covenant vide Vse D DAmages 80 Daughter ib. Deed 82 Debt 84 Devastavit vide Executor Devise 86 Disablement 89 Disagreement 90 Discharge 91 Dissent 94 Discontinuance 97 Disceisor 100 Divorce 102 Dower 104 E ELection 112 Emblements 116 Entry 117 Escheat 119 Estate 120 Estoppple 121 Estovers 122 Exchange 123 Execution 124 Executors 126 Extinguishment 131 F FEoffment 132 Fem Covert 134 Fem Sole 135 Fine ibid. Forfeiture 136 Frankmarriage 138 G GRant 139 Gavel kind 141 H HAbendum 142 Harriot ibid. Heir 144 I INcertainty 148 Infant 149 Joinder in Action 152 Jointenants 156 Judgement 161 L LEease 161 Limitation 166 Liveryy Seisin 169 M Market overt 171 N Nusance 172 O OBligation 172 Occupant 173 Outlawry 174 P PArceners Partition 175 Particeps Criminis 182 Payment 184 Place ibid. Pleas ibid. Possession 185 Possessio Fratris 186 Q Quare Impedit 188 R REcognizance vide Statute Record 189 Relation ibid. Release 190 Remainder 217 Remitter 220 Rent 227 Reservation 25 Reversion 253 Reviver 257 S SEisin 260 Severance of the Jointure ibid. Statutes ibid. Surrender 263 T TAil 264 Tenants in Common 269 Tenant by the Curtesie 272 Tenures 274 Testament 281 V VIllain 281 Voucher 285 W WAst 292 Warranty 295 Absence IF one in the absence of I. S. disseiseth another to his use or in his absence surrenders to his Steward or gives goods to him in his absence his subsequent agreement will make all good But a disagreement cannot be in his absence Acceptance TEnant in tail grants a Rent-charge in Fee and then makes a Lease for forty years rendring a Rent and dies The Issue after his death accepts the Rent the Grantee shall have the Rent during the Lease and also during the life of the Issue though the Lessee surrenders Q. for the Reversion is discharged A. makes a Lease for life rendring a Rent with a clause of re-entry after he has title of entry he accepts the Rent now he cannot enter for the condition broken for when he accepted the Rent he did not receive it as a debt for an Action of Debt would not lie in that case but as a Rent And it cannot be a Rent unless the Lease continues So if a Woman Issue in tail or an Infant accept a Rent reserved by the Husbund c. But in the principal case if the Lease had been for years there the Rent is said to be a Debt during the Lease as well as after A Fem sole being Lessee for life takes Husband then they make a Lease to I. for his life rendring a Rent the Husband dies the Wife accepts the Rent in Pais the Lessor may enter and she is barr'd of her Cui in vita for by her acceptance she hath agreed to the forfeiture If the Issue in tail accepts the Rent with a Proviso that it shall not be prejudicial to his entry to avoid the Lease yet he shall never defeat the Lease The Husband and Wife make a Lease for life reserving a Rent the Husband dies the Wife accepts the Rent from the Lessee she shall not avoid the Remainder for they are both but one Estate and an Agreement cannot be to parcel of an estate So if a Lease be made to two by Husband and Wife for their lives rendering a Rent during the life of one of them If the Wife after the death of her Husband accepts the rent she shall not oust the Survivor The Husband and Wife being tenants in tail the Husband makes a Lease for years reserving a Rent and dies the Wife dies also Quaere if the acceptance of the Rent by the Issue will make the Lease good A man makes a Feofment upon condition the Feoffee makes a Lease for life and grants the reversion to the Feoffor If he hath cause to have a Writ of Right or other real action he cannot have it against the Lessee for life for the Reversion is in him by his own acceptance A gift in tail is made to the Donee and the Heirs males of his Body and for want of such Issue the remainder to him and the Heirs females of his body the Donee makes a Lease for years reserving a rent and dies without Issue male If the Heir female accepts the rent she shall be bound for the Lease issued out of both the estates But if the Heir male had made the Lease the Heir female cannot make it good by acceptance If Tenant in tail dies his Heir within age and the Guardian avoids it during the minority yet the Heir at his full age by his acceptance may affirm it So if the Wife of Tenant in tail avoids a Lease by a Recovery in Dower yet after her death if the Issue accepts the Rent he hath made good the Lease Administrator After the death of the Intestate A gets the goods and gives them to B and after Letters of Administration are granted to A he shall not take the Goods out of the possession of B for the Law saies by the first taking the Goods he had them to the use of the Intestate for he shall be charged as Executor de son tort And he is to have the Goods in the same capacity But it is otherwise if A takes the goods of B tortiously and gives them to C and then B makes A his Executor But in the principal case if A releaseth to a Debtor of the Intestate after administration committed to him he may have an Action for of a chose in action a man cannot gain a possession If a Lease is made to begin at Easter and before Easter A grants it over and before Easter the Lessee dies and A takes administration to the Lessee and grants it over to another the second Grantee shall enjoy it If a Rent charge is granted for years and A compels the Tenant to pay it to him and then he grants it over and takes Letters of Administration to the first Grantee he shall avoid his own Grant for the possession which he had usurped shall not be esteemed the possession of the same term but it shall be said a voluntary payment of the Tenant for none can be said to have the Rent but he that had right to it Advantage THree joint-tenants one gives his part to his Daughter in Frank-marriage to one of his Companions and makes Livery This is a good Frank-marriage for though one Joynt-tenant cannot enfeoffe another yet his Companion and a stranger he may because 't is for the Advantage of a third person and the Livery being made to the third person shall vest the estate in both 7
the delivery of the Deed before Livery be made If the Mannor of D. be given by Deed with all the Woods and within the Deed there is a Letter of Atturny to make Livery if Livery be not made yet his Executors shall have the Wood. But if Livery be made then the Wood shall go along with the Land If A. requires another or gives him authority without Deed to write seal and deliver a Grant of a Rent Charge out of the Land of the Grantor in the name of the Grantor which is done the Grant is good for if I make a Grant and command one to deliver it it will be good without Deed. So if I by Paroll deliver it him as an Escrowle to be delivered as my Deed upon Condition to be performed that is good But an Authority to make Livery must be by Deed. Neither shall a Woman aver the Assent of the Father for Dower Ex Assensu patris without Deed. Neither can the Lessor Authorize the Lessee to commit Wast without Deed. If an Infant delivers a Deed which bares date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date no more than a Fem covert otherwise every Infant may be deluded Debt LEssee for forty years makes a Lease for ten years rendring a Rent the first Lessee surrenders the Lessor brings Debt against the second Lessee Quaere A man shall not have Debt for Releif or Escuage granted unto him for it is mixt in the Realty but his Executors shall but he must distrein So the Lord shall not have an Action of Debt for Ayd pur file marier or pur fair fits Chivalier But if he dies before it be levied the Tenant shall be discharged of it An Action of Debt shall not be brought against the Heir and his Brother in Borough English where the Eldest hath nothing by descent as it shall be against the Heirs in Gavel kind for there he may have a joint judgement against all and not against the Eldest in the other case for he hath nothing upon which it may be levied Quod nota An Action of Debt brought by Executors shall be in the Detinet only although it be for Arrears of Rent incurred after the death of the Testator So it shall be against a man acccomptable to the Testator A Seignory is granted for years the Rent is Arrear and the Tenant dies the years expire if the Grantee shall have an an Action of Debt against the Heir because it was due in the time of his Father and also some was due in his own time or if he shall have an Action of Debt against the Executors for that which was due in the Testators life time or is without Remedy Some say that the Heir shall not be charged in Debt if the Father die not oblige himself and his Heirs expressely and the Executors shall not be charged for they were not chargeable by the death of the Testator for at that time the Grantee could not have an Action of Debt but his remedy was by distresse for then the years were not expired and so no remedy 9 H. 7. 17. a. Co. 4. 49. An Annuity is granted for the life of A. the Grantee releases all Actions of Annuity he shall not have an Action of Debt for the Arrerages although that A. dies afterwards Devastavit vide Executor Devise A Woman hath Issue a Son and by another Husband hath Issue another Son the second Husband devises Land to the Wife for life the Remainder to the next of the blood of the Wife The youngest Son shall take in Remainder although it be true that one is not nearer of blood to the Mother than the other and the Eldest is of the most worthy blood yet he is not neerest and so it is uncertain who should take according to the letter of the Wlll yet the Intent which is always to be considered in Wills shall be construed in Favour of the youngest because he was Issue of the Devisor Pasc 5. Eliz. A great Case was argued in the Exchequer There were three Brothers the second brother purchased Land and devised it to his Son in tail and if he died without Issue that then it should remain to the next of the Kindred of the Lineage of the Father the Eldest Son was then dead having a Son it was adjudged that the Son of the Eldest should have the Land for he is next of the Lineage For Lineage shall be taken in a Lineall descent which is the most worthy Line Dy. 333. pl. 29. A Devise to the next of Blood the Son of the Eldest Brother shall have it before the younger Brother If Land be devised upon Condition or rendring a Rent that is void for it cannot be good in either case except the Reservor might take advantage of it and the Heir cannot have that which his Ancestor could not And if a man devise Land with Warranty that is void because the Father was not bound But to some there seems a Diversity for in the last case there is a Charge to the Heir and in the first it is for his advantage If the Lord devises Land to his Villein this is an Infranchisment against the Heir and yet he was the Villein of the Heir when the Devise took Effect A man having three Daughters devises to them a hundred pound a piece for their marriage Portions and if any of them die before their Marriage then the other should have her Portion by Survivor one dies in the life of the Father the other shall have three hundred pound after the death of the Father and yet nothing survived for she had nothing in possession yet they shall take it by the intent of the Devisor for when he says that if any of them die before their Marriage that the other shall have her Portion this makes it in nature of a Remainder and then though the first Devisee does die in the life of the Testator yet he in Remainder shall take the Estate per Manwood Dy. 127. p. 59. As a Devise to a Monk the Remainder to another the Remainder is good A. Devises Land upon Condition and if the Condition be broke that his Executors shall sell the Land the Devise as to the Executors is void for the Heir must enter for the Condition broken and then he shall hold it discharged of all Conditions A. Devises twenty pound to B. when he arrives at the age of six and twenty years and if he dies before he Devises it to C. B. releases to the Executors of A. before he attains his age of six and twenty years if it shall be a Bar Quaere If A. Devises twenty pound yearly for twenty years the Devisee hath no Remedy for his not Issuing out of any Land for he cannot take it as a Legacy and an Annuity does not lie against Executors for the Testator was never charged A Jointure
infeoffs his Donor who dies seised the discent will take away the Entry of the Issue Quaere If there be two Sons and the youngest hath two Daughters the Grandfather seised of two Acres at Common Law and twenty in Borough English gives the two Acres with the youngest in Frankmarriage the youngest Son dies the Grandfather dies seised the twenty Acres shall descend equally to the two Daughters and the two Acres shall not be put in Hotch potch for the Custom as well as the descent makes the Title The Disseisor dies without Heir his Wife enseint the Lord enters a Son is born the Disseisee enters upon the Lord. If the Entry had been before the Birth it had been Lawfull and he Remitted If a Stranger abates the Disseisor having Issue or if after abatement a Son had been born the Disseisee could not have entred for the Abator may say that the Land descended to the Issue whose Estate he has If the Tenant makes a Feoffment Pending the Praecipe against him the Plaintiffe Recovers then the Feoffee dies seised the Plaintiffe cannot enter upon the Heir for the dying seised was after the Judgement Tanta mount as if the Feofment and Discent had been both after Judgement and then it had been cleer that the Entry had been taken away for the Discent is the Title and not the Feoffment But if the Discent had been hanging the Writ that would not have taken away the Entry But if a Recovery be had against Tenant for life and he dies and he in Remainder Enters and dies seised that shall not take away the entry of the Recoveror for all the Estate is recovered and he in Remainder is as privy as if the Action had been brought against him immediately so of him in Reversion Br. Ent. Cong 116. The King being seised A. intrudes the King Grants it away A. continues in possession and dies seised this Discent will not take away the Entry of the Grantee for then he were without remedy as if Land be devised and a Stranger Abates and dies that shall not toll the Entry of the Devisee Discontinuance JF Land be given to two and to the Heirs of the body of one and he which hath the Estate in tail makes a Feoffment and both die this is no Discontinuance for any part for he was not seised of the Estate in tail at the time of the Feoffment If Tenant in tail makes a Lease for life the Remainder for life and after Releases to him in the Remainder and his Heirs this is a Discontinuance If the first Tenant for life dies in the life of Tenant in tail If Tenant in tail makes a Gift in tail to A. and after Releaseth to him in Fee and dies and A. dies without Issue the Issue in tail may enter upon the collaterall Heir of A. for the Fee was not Executed in the life of Tenant in tail though it passed out of him Quaere of all these cases If the Grandfather be Tenant in tail and makes a Gift to Baron Fem in tail the Husband dies without Issue the Grandfather dies the Father Releases to the Wife being Tenant after possibility and to her Heirs and dies the Wife dies the Issue cannot enter upon the Heir of the Wife for though it be no Discontinuance yet when the Wife came to the Fee simple the Fee was Executed and then she died seised in Fee and the Discent takes away the Entry But if the Wife had been Tenant in tail and then she had died without Issue it had been otherwise for then she had not died seised but of an Estate tail in possession and a Fee in Reversion and that will not take away an Entry If Tenant in tail infeoffes the Wife of the Donor that is a Discontinuance If Tenant in tail infeoffes the Donor and a Stranger that is a Discontinuance of all for the benefit of the Stranger If Tenant in tail of a Rent grant that in Fee that is no Discontinuance for the Grant endures no longer than for his own life If Tenant in tail makes a Lease for the life of the Lessee and then disseises him and makes a Feofment in Fee the Lessee dies and Tenant in tail dies that is no Discontinuance for the Fee was not Executed by lawfull means So if Tenant in tail makes a Lease for life and grants the Reversion the Grantee disseises Tenant for life Tenant for life and Tenant in tail die this is no Discontinuance for the Fee was not executed according to the Grant But if Tenant in tail makes a Lease for her own life and disseises Tenant for life and makes a Feofment that is no Discontinuance for by the Disseisin he was seised in Fee and the Fee was devested out of the Donor and then he was not Tenant in tail The first case seems cleerer if Tenant in tail dies living Tenant for life If Tenant in tail makes a Lease for the life of the Lessee who is disseised and Tenant in tail Releases to the Disseisor without Warranty Tenant for life and Tenant in tail die this is a Discontinuance in Fee for the Disseisor had the same Fee executed in the life of Tenant in tail which was first made as if he had after Released to Tenant for life which would have countervailed an Entry and Feofment A. makes a Gift in tail to B. who makes a Gift in tail to C. who makes a Feoffment and dies without Issue Nothing made a Discontinuance to the Issue of B. but the Livery of B. for by that the Reversion of the Donor was discontinued But when C. died without Issue that Livery is determined and the Discontinuance purged and the Feofment of C. being a Stranger to the first in tail cannot be a Discontinuance especially when there was but a Right of the Intail discontinued by the Feofment of B. and a Right cannot be discontinued If Tenant in tail be disseised and Releases to the Disseisor with Warranty and is attainted of Felony and hath his pardon and dies that is a Discontinuance for if he had purchased the Land after his pardon it should have gone to his Issue which proves that the blood between him and his Issue is not corrupt as it is between him and his Ancestor then seeing the Warranty was in being at the time of his death there is no Impediment but that it should descend Disseisor LOrd and Tenant of twelve Acres by twelve pence the Tenant makes a Lease of one Acre for years the Lessee enfeoffs the Lord he may avow for eleven pence for though he is a Disseisor by the Statute yet to another intent he is in by Feoffment for if Lessee for years infeoffs two a Release to one will inure to both If there be two Disseisors of a house to which Estovers are appendant and a Release is made to one the Estovers Remain for part for the Release doth not countervail an Entry and Feofment If the Lord procures one to
before Entry he in Reversion may enter as upon the Disseisor of his Tenant but if he dye and his Heir in by Descent he cannot enter After a Discent the Disseisee abates the wife of the Disseisor recovers dower by confession if the disseisee may enter A Lease for life is made rendring a Rent with a Re-entry for default of payment the Lessor hath cause of Entry the Lessee is disseised and a discent cast the Lessee dies the Lessor may enter for the Land was alwayes recontinuable by Entry If Lessee for years upon Condition be outed after the term and a dissent cast the Lessor shall enter for breach of the Condition Escheat IF Lessee for yeares makes a Feoffment and the Lessor dies without Heir the Lord shall not enter for the Escheat for it is a good Feoffment against him A. infeoffs B. so long as Paul's Steeple shall stand B. dies without Heir if the Land shall Escheat Vide Attainder Bastard Estate IF a Lease be made so long as A. and B. shall be Justices if one of them be removed the Estate is determined for the time was in the Copulative and a Collaterall determination But if it had been during their lives and one of them had died the Estate had continued A. hath Issue a Son and a daughter Land is given to the daughter and to her Heirs Females of the body of the Father begotten she hath not Estate tail but for life only Inst If a lease be made to a Dean and Chapter for their lives they shall have a Fee for they never die If a Rent of twenty shillings a year be granted until the Grantee shall receive twenty pound the Grantee hath an Estate but for twenty years for it is certain So if it had been granted untill A. shall arive at his full age he takes but for years If Land of twenty shillings a year value be granted until he shall receive twenty pounds out of the Issue and profits and Livery be made he takes an Estate for life by reason of the uncertainty of the profits If A. makes a Lease for life reserving a Rent and if it be behind that he shall enter and retain til he hath received the Rent out of the profits of the Land all the Estate of the Lessee is defeated 30 E. 3. 7. If A. hath two Daughters and the Eldest gives Land to the youngest and to the Heirs of the body of the Father begotten there passeth but an Estate for life for the donor is one of the Heirs and it cannot be an estate tail in her self of her own making and it cannot inure to the other for she is not Heir But if it had been given to the youngest the eldest being born out of the Realm it shall go to him Estopple IF a Praecipe be brought against the Father of the Sons Land and he loseth and the Son after the decease of the Father brings a Writ of error to reverse the Recovery and Judgement is affirmed the Recoveror may enter upon the Son for by bringing his writ of Error he is Estopped to say that his Father was not seised If an Infant delivers a deed which bears date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date neither shall a Fem Covert Husband and Wife seised and to the Heirs of the Husband the Husband makes a gift in tail the Wife recovers against the donee in a Cui in vita supposing that she hath a Fee and dies and the donee dies and the Issue of the Husband and Wife brings a Formedon in Reverter and though he was Heir to the Wife he shall be Estopped to say that he had a lesser estate than in Fee yet the Issue who claims by the Husband shall not be Estopped Vide Dower Estover A. seised of an house on the part of his Mother and Estovers are granted to him in Fee and he dies without Issue the Estovers are extinct If there be two disseisors of a house and they have Estovers granted to them to be imploied in the same house and the disseisee releaseth to one the Estovers remain for part If one hath Estovers in certain in ten Acres of wood and five of them descend to him he shall not take the whole out of the residue Exchange IF A. exchanges twenty Acres with B. for ten of equall value B. is impleaded and loseth ten Acres vouching A. and recovering in value he shall have all the ten Acres again which he gave to A. and retain the ten Acres Residue without Warranty for the folly of A. If A. exchangeth Land with B. in Fee who infeoffs a stranger one enters into the Land of A. by Title Paramount he cannot enter upon the Feoffee of B for the privity of the Exchange is determined by the Feofment If A. and B. exchange Land and A. makes a Lease for life B. is impleaded and recovers in a Warrantia Chartae and hath execution of other Land the Tenant for life dies A. enters upon whom a stranger enters by Title Paramount he hath no remedy for the Land rendred in Value for that doth not go in privity as the Exchange doth If A. and B. exchange Land and A. dies in a Praecipe against B. he vouches the Heir of A. who enters into Warranty and cannot bar the Demandant by which he recovers and B. over in value the Demandant enters if B. may enter upon the Heir or is chased to his Habere facias ad valentiam Some think he may enter for a descent is not material against a Condition as this is for if there had been an express Condition he might have entred and so he may now But if part of the Land exchanged had been recovered against B. he could not have entred for he shall not be his own Judge of the portion But where all is recovered the whole Exchange is avoided and therefore he may enter If one Exchangee makes a Feofment of his part the other shall not enter upon the Feoffee for the Condition is determined and dissolved But Quaere if after the Feofment the other may vouch If two Acres are exchanged for a Mannor and a stranger enters by title Paramount into one Acre he shall enter into all the Mannor for it is an entire thing And Quaere if he shall retain the other Acre Execution IF Tenant in tail with a Remainder over with VVarranty recovers in value and dies before Execution he in Remainder shall sue Execution because he is privy If Tenant in tail dies without Issue If a man Recovers in value Land in Burrough English Quaere if the youngest Son shall sue Execution But if the Issue in tail recovers in a Formedon and dies without issue before Execution the Donor cannot enter or have Execution If tenant in tail discontinues and dies leaving a daughter his Wife Privement Enseint with a Son the daughter recovers
a Title Paramount was congeable As if a Disseisor makes a Lease for life and the Lessee makes a Feofment and the Disseisee releaseth to the Feoffee the Disseisor cannot Enter But if the Heir of the Disseisor who is in by descent makes a Lease for life the Lessee makes a Feoffment and the Disseisee releaseth to the Feoffee the Lessor may enter for the Disseisee could not 9 H. 7. 25. pet Fineux If an Infant makes a Lease for life and the Lessee grants his Estate with Warranty the Infant brings a Dum fuit infra Etatem and the Tenant vouches the Grantor who enters into Warranty and loseth the Demandant Releaseth to him and his Heirs some think the Release is void for he is Tenant only to answer the Action but a Release which is to enlarge an Estate must inure upon a privity of Estate And therefore a Release made to Tenant by the Curtesie in Fee after he hath granted over his Estate is void and yet an Action of Wast shall be maintainable against him by the Heir and he shall Atturn If a Lease be made for life the Remainder for life the Tenant for life dies and before the Entry of him in Remainder the Lessor Releaseth to him in Fee that shall inure according to the words But in a Writ of Entry in the Per if the Tenant vouch him by whom c. who enters into Warranty and the Demandant Releaseth to him that inures by way of Extinguishment If a woman who hath cause of Dower Releaseth to the Guardian that takes away her Title and Estate though the Gardian had but a Chattle and the Heir shall Advantage of it It was said in the case of the Dum fuit infra aetatem if he had Released in tail a greater Estate should not have passed for though it doth not appear by the Dum fuit infra aetatem what Estate he claims for the Writ is generall yet when he enters generally into the Warranty he shall not be said to have a Fee against the Demandant but the Demandant shall make an Averment that he did not make the Devise but only for life A Release made to the Patron when the Church is full doth not extinguish an Annuity otherwise if it had been in the time of vacation 21 H. 7. 41. but a Release to the Ordinary peradventure will not avail Tenant for life grants a Rent Charge a Release to him in Reversion will not extinguish it no more than if he in Reversion grants a Rent Charge a Release to Tenant for life will extinguish it If there be two Disseisors and one makes a Lease of a Moity for years reserving a Rent with a Re-entry for not payment the Disseisee releaseth to the other who did not make a Lease he shall have the whole Freehold of all the Land and the Lessee shall not pay the Rent to him for he comes to the Reversion by Title Paramount and not by any Privity A. outs his Termor for years and then makes a Lease for years the first Termor releaseth to the second the first Lessor may enter and have the Land against them both for by the Release the Right of the first Termor was extinct As if a Rent Charge be granted to the Disseisor c. and it doth not fortifie the Estate of the second Lessee during the first Term for if the first Lease had bin for twenty years and the second but for a year yet by the Release of the first Lessee to the second all the first Estate shall be extinguished But if he had been Tenant for life and the Disseisee Releaseth to the Disseisor now during his life the Lessor cannot enter otherwise if he had been Tenant for years for in one case the Disseisor had a Freehold in him which might be fortified and in the other case but a Chattle Although the Husband cannot give any thing to the Wife immediately yet if a Disseisoresse makes a Lease for life the Remainder to her self in tail the Remainder to A. in Fee and marries the Disseisee who releaseth to Tenant for life that will inure to his Wife If an Infant Disseisor makes a Feoffment and the Feoffee dies seised and his Heir enters to whom the Disseisee releaseth yet the Infant shall have a Dum fuit infra aetatem and shall recover for he demands the possession to which he had more Right than the Disseisee and the Tenant ought to answer to the Demise and not to the Right As if the Heir of the Disseisor who is in by Descent brings an Assize against his Disseisor it is no plea for him to plead the Release of the Disseisee for he demands the possession to which he had more Right than the Disseisee So if the Disseisor recovers in an Assize by erroneous Judgement against his Disseisor and the Disseisee releaseth to him that hath recovered and the other brings a Writ of Error it is no plea for him to plead the Release for the intent of the Suit was to correct the Error upon the Record If a Disseisor makes a Lease for life and the Lessee makes a Feoffment to A. who obtains a Release from the Disseisee the Disseisor brings a Consimili Casu some think he shall recover but if the Heir of the Feoffee who is in by Descent c. gets a Release it is cleer the Disseisor may have an Action and the Tenant ought to answer to the Demise and not to the Right of the Land in both cases If a Disseisor enters upon his Feoffee for breach of a Condition the Feoffee shall not have a Writ of Right though the Right of the Disseisee be released to him before the breach of the Condition So if the Disseisee enters upon the Heir who is in by Descent and makes a Feoffment or releaseth of such an Heir and the Heir re-enters or if one who hath a Title brings a Formedon in Remainder against an Abator and recovers by default See the rest of the case in 9 H. 7. 25. In all these cases he to whom the Release was made or the Right was given shall not have a Writ of Right but it shall goe in advantage of him that Removes the possession for being one hath a right in possession and recontinues it that draws the very right to it and the Right by it self shall not be left in the other Note that in all these cases the Right comes after the possession but if the Right were before the possession and then the possession is removed the Right remains in the person to whom it was given As if the Heir of the Disseisor who is in by descent enfeoffs A. and several other Feoffments are made and after the Land comes to the Heir again and the Disseisor enters upon him and he outs him Now if the Disseisee brings a Writ of Right upon his first possession he shall be deluge by vouching of the Feoffees but he may have a Writ of