release is a bar to the writ of Error So if a judgment be given upon a false verdict in a reall action a release of all actions reall is a bar in an attaint By a release of all actions personall without more words are Of actions personall Bro. Release 47. Co. super Lit. 285. 9 H. 6. 57. Lit. Sect. 502. discharged all personall actions then depending and all causes of personall actions wherein a personall thing only is to be recovered and therefore hereby are discharged all causes of suing out of actions of debt trespasse detinue or the like Also all mixt actions as actions of wast Quare Impedit an assise of novel disseisin writ of annuity appeal of maihme and the like And if debt c. or damages be recovered in a personall action Co. super Lit. 289. by false verdict and the defendant bringeth awrit of attaint or if a writ of Audita Querela be brought by the defendant in the former action to discharge him of execution by this release the defendant in both cases is barred of his suit Also when by a writ of Error the plaintiffe shall recover or Co. super Lit. 288. Lit. Sect. 503. be restored to any personall thing only as debt damage or the like as if the plaintiffe in a personall action recover any debt c. or damages and be outlawed after judgement in this case in a writ of Error brought by the defendant upon the principall judgement this release will bar him But where by a writ of Error the plaintiffe shall not be restored to any personall or reall thing this release is no bar as if a man be outlawed in an action personall by processe upon the originall and bring a writ of Error and then release this is no barre to him If a man by wrong take or find my goods or they be delivered Lit. Sect. 497 498. 500. to him and I release to him all actions personall notwithstanding this release I may in this case take my goods again albeit I be barred of my action by this release Neither is this release a bar in an appeal of robbery or death Neither will it bar in any case where a release of all actions will not bar Neither is it any bar to an action of debt brought for an Co. super Lit. 292. 285 annuity granted for a term of years for any arrearages that shall grow due after the release Nor for any rent of sum of nomine pene when the release is before the same day or nomine pene happen Neither is it a bar in such reall actions wherein damages are recoverable only by the statute and not by the common law as in a writ of dower entry sur disseisin in le per Mordancester Aile c. By a release of all debts without more words are discharged Of debts Co. super Lit. 76. 291. Fitz. Audita Querela 3. and released all debts then owing from the relessee to the relessor upon especialties or otherwise all debts due also upon statutes And therefore if the conusor himself or his land be in execution for the debt and he hath such a release he must be discharged and so he cannot be upon a release of all actions By a release of all duties without more words is a relessor Of duties Co. 8. 153. super Lit. 291. barred and the relessee discharged of all actions judgements and executions also of all obligations And if the body of a man be in execution and the plaintiffe make him such a release hereby he shall be discharged of execution because the duty it selfe is discharged And if there be rent or services behind to the Lord from his tenant and the Lord make such a release to his tenant by this it seems the arrearages are released This word is of somewhat a more large extent then actions Co. 8. 154. 157. 5. 70. super Lit. 291. Of Suits for by a release of all suits without more words is released and discharged as much as by a release of all actions And hereby also are discharged al executions in the case of a subject But in the case of Prerogative the King it doth not release executions And this doth not release a covenant before it be broken By a release of all quarrels without more words all actions Co. super Lit. 292. 8. 157. 5. 70. Of Debates quarrells controversies reall and personall and all causes of such actions are released and discharged So likewise by the release of all controversies or by the release of all debates But this will not bar the relessor of any causes of suit that shall arise after and was not at the time of the release as the breach of a covenant which shal be after albeit the covenant be before is not discharged hereby By a release of all covenants without more words all covenants Of Covenants Co. 1. 112. 10. 51. super Lit. 292. then broken and all that shall be after broken that were then made and in being are discharged Qui destruit medium destruit finem And therefore if a lessee doe covenant to leave a house leased Adjudge Hil 4 Jac. B. R. Hancocks case to him at the end of the terme as it was at the beginning of the terme and the lessor before the end of the terme release to the lessee all covenants this doth discharge the covenant But this release doth discharge nothing else but covenants By a release of all Statutes from the conusee to the terre-tenant Of Statutes Co. 10. 47. without more words the Statute is discharged And yet if he release all his right in the land of the conusor this will not discharge the land of execution By a release of all errors and writs of error all errors and Co. 2. 16 Lit. Sect. 503. Of Errors writs of error and that before they be brought are extinct and discharged And if a man be outlawed in a personall action by processe upon originall and make such a release this will barre him By a release of all warranties or covenants reall all warranties Lit. Sect. 148. Of Warranties then made and being are for ever discharged By a release of all legacies without more words a man doth Co. 10. 51. Dier 56. Co. super Lit. 76. Of Legacies barre himselfe of all the legacies given him in presenti or futuro so that if he be to have a legacy at 24. yeares old and at 21. yeares of age he release to the executor al legacies or this legacy in particular this is a barre to him of this legacy for ever And yet a release of all demands in this case is no discharge of this legacy By a release of rent the rent is extinct and discharged whether Co. super Lit. 292. Of Rent the day of paiment be come or not But a release of all actions will not
same Court A recovery being matter of Record is much of the nature of a Co. 5. 41. 10. 37. 39. 3. 5. 6. 41 42. Doct. et Stud. 41. 49 50. stat 13 Eliz. cap. 5. 23. cap. 3. 7 11. 8. cap. 4. 4. The use nature and operation of it fine and such a thing as whereof the law taketh notice for it is now become a formall and orderly manner of Assurance of lands and one of the Common Assurances of the Kingdome or a common way and meanes to passe land from one to another And therefore if a tenant for life suffer such a recovery of his land it is a forfeiture of his estate an use may be averred upon it as well as upon Forfeiture Averment Covin a fine and it may be avoyded for covin as well as any other kind of conveyance But it is of speciall use and hath a speciall virtue to barre and binde estates in taile and all the remainders and reversions thereupon And because many of the Inheritances of the kingdome doe depend upon this Assurance and it is oft times the greatest security purchasors have for their money therefore it hath much favour from the law at this day And therefore the law will not endure it shall be disputed against for Communis error facit jus And hence it is that it shall not be avoyded for small errors for it is another rule of law Consensus tollit errorem And if a recovery be suffered by a tenant in taile hereby he hath not only discontinued barred and destroyed the estate taile and so defeated himselfe and his issues the former owner of the land and all the remainders and reversions thereupon that should take place after the estate taile whether they be in esse or contingent only but also all former estates leases and charges made by him in remainder or reversion Co. 1. 62. 25. Doct Stud. 49. 44 Ed. 3. 22â— for as when the estate taile in possession is not barred by a recovery the estates in reversion or remainder are not barred for Quod non in magis propinquo non in magis romoto valebit So it is è converso where the estate taile in possession is barred by the recovery all the remainders and the reversions Conditions charges incumbrances and estates dependent upon it are barred also except it be in some speciall cases where the remainder or reversion is in the King And therefore if A be tenant in taile the remainder to B in taile the remainder to C in fee and B or C doth make a lease for years of the land or grant a rent charge out of the land or enter into a Statute or the like or grant the remainder or reversion upon condition and after A doth suffer a common recovery of the land and after dieth without issue in this case the recoveror shall hold the land discharged of all these estates and charges in remainder But otherwise it is if A himselfe make a lease or enter into a Statute and then suffer a common recovery of the land in this case this recovery doth not avoyd but affirme the lease or charge for whereas it was before voydable by the issue in taile or him in remainder or reversion now it is good against them all and the recoveror also shall hold it charged and subject to the lease and charge of the tenant in taile This kind of Assurance therefore is in some respects better then a fine for a fine will barre the heire in taile but not him that is in the remainder or reversion but a recovery will barre them all In every good and binding common Recovery these things are 5. What shall be said a good Common Recovery And who shall be barred and bound thereby or not West Sym. ubi supra Co. super Lit. 372. requisite 1. That there be a demandant a tenant and a vouchee as the efficient causes thereof for if either of these be wanting it is not a compleat recovery And therefore if a common recovery be had against a tenant in taile without a voucher this is voyd And for this it is to be knowne that such persons and by such names may be demandants tenants and vouchees in recoveries as may be cognisors and cognisees in fines a Benets case Hobarts Rep. 275. Pasc Pasc 9 Jac. Earle of Newports case adjudged And therefore a recovery suffered by an Infant appearing by his Guardian is good and will Infant Woman covert bind him and all others b Co. 10. 43. Plow 515. 2 Doct. stud 52. Co. 5. 40 41. West ubi supra So also a recovery had against a woman that hath a husband being joyned with her husband will bind her and all others 2. That there be land demanded as the matter and that the thing be demandable And for this it is to be known that of such things and by such names as a writ of Covenant for the levying of a fine may be had a writ of entry for the suffering of a recovery may be had save only it may not be de fossato stagno piscaria un ' Carucat ' terre estoveriis homag fidelitat ' de servitiis â—aciendis de bovata marisci de selion ' terre de gardino cottagio crofto virgata terre fodina minerae mercatu nec de superiori camera And yet of some of these also it may be by other names Also a recovery may be had of a rent common advouson franchises and the like but not of an annuity 3. That it be had and Co. 3. 3. stat 23 Eliz. cap. 3. suffered in that order and forme as law requireth viz. that there be a writ of entry brought an appearance of the tenant in fait a voucher and an appearance of the tenant in Law the vouchee Judgement and Execution in manner as aforesaid for if there be any substantiall defect in these things the recovery may be thereby avoided by writ of error but if it be only in forme it will not hurt 4 That there be a lawfull tenant to the Precipe i. that the writ Dier 252. Co. super Lit. 46. 3. 6. of entry be brought against one that at the time of the writ brought is tenant of the â—reehold either by right i. that hath an estate for life at least in the land or by wrong i. that is a disseifor of the land demanded and whereof the recovery is had And therefore Co. 3. 6. super Lit. 46. Lit. Bro. Sect. 519. Plow 514 Doct. Stud. 49. See infra in this case the course is where the land to be recovered is in possession and a fine and a recovery is had of it together the fine is sued out first for this doth make the Conusee tenant of the free-hold of the land and then the recovery is had against him And when the recovery is to be had of a reversion and that there is an estate for life in being
with Proclamations and he in the remainder suffer the 5. yeares to passe in this case he is barred of his entrie upon the alienation for the forfeiture but it hath been held that if the tenant for life die that he shall have another 5. years time to bring his Formedon in the remainder So if the husband make a feoffement of his wives Plow 357. 368. 372. land to another upon condition which is broken and he levieth a fine of this land and the husband hath issue by his wife and dieth and the first 5. yeares passe and then his wife dieth hereby he is barred of the title by the condition but he shall have 5. yeares more to make his claime as heire to his mother But if lands be given to H for the life of A the remainder to B for life the remainder to H in fee and H is disseised and after the disseisor levie a fine and 5. years passe in this case H is barred both of his present and future estate and shall have no further time to make his claime c. and yet if Cestuy que vie and he in the meane remainder die H shall have another 5. years to make his claim to preserve his remainder In like manner it is if land be given to H for the life of A the remainder to him for the life of B the remainder to him for the life of C and he is disseised and the disseisor levieth a fine with Proclamations in this case some say H for his present right shall have 5. years by the first saving of the Statute and 5. years after the death of A by the second saving of the Statute If one disseise a feme sole and after mary her and have issue by her and the husband is disseised before mariage or after and then a fine is levied with Proclamations and the husband dieth first and afterwards the wife dieth within the 5. years the issue being of full age the 5. years passe hereby he is bound as heire to his father but he shall have 5. years more after the death of his mother to make his claime 8 c. Quando duo jura in una persona concurrunt aequum est ac si essent in diversis Where there is a precedent agreement amongst the parties as a Co. 10. 96. 2. In the Lord Cromwels case â—â— How a fine shall enure and work feoffement or the like there the fine shall not passe any thing nor work by way of Estoppell but only by way of corroboration and shall be guided by the precedent agreement And therefore if a feoffement be made to two and their heires and after a fine is levied to them two and the heires of one of them this shall enure as a release and shall not alter the estate but if there be no precedent agreement it shall work as it may Dyer 157. Fitz. Estoppell 211. Co. 2. in Cromwels case If A enfeoffe B of certaine land in fee rendring rent with condition of re-entrie for not payment of rent and by indenture at the same time covenant to levie a fine of the same land to the feoffee to the uses and conditions in the deed of feoffment and after a fine is levied sur conusance de droit come ceo c. accordingly in this case this fine shall enure as a fine sur release because the Conusee hath the fee before and it shall not enure by way of Estoppell albeit it bee a fine sur conusance de droit come ceo c. And Estoppell Extinguishment therefore the rent and condition shall remaine in this case and not be extinct A fine may be avoided for many causes as by the death of the parties See before at Numb 6. part 2. F. N. B. 20. f. Stat. 23. El. ch 3. after the conusance before the recording of it or by covin in the 12. Where a fine may be avoided or not And how 1. By a writ of error procuring of it Also it may be avoided for other causes as for some error in the proceeding in the suing out of the fine and this is done by writ of error but this error then that shall not make a fine voidable must be notorious because the thing is done by consent and it is a rule in Law Consensus tollit errorem And by this means if the husband Co. 2. 77. 2. 76. and wife levie a fine and both of them be within age whiles either of them be within age they may avoid the fine as against them both But if there be tenant for life and he in remainder in taile being an Infant and they two levie a fine and he in the remainder reverse it for infancy this shall not avoid the fine as to the tenant for life also A fine also is and may be sometimes avoided or at Plow 358. 359. Co. 9. 106. least lose much of his force by the claim entry or action of him that hath right to the land for if the estate contained in a fine be 2. By a claime entrie c. And by whom a claim c. may be made once within 5. years after Proclamations lawfully defeated the party hath thereby left his whole estate both against him which did reverse the same and against all others which had right or title paramount and made no claime within the 5. years albeit he which doth bring the action have no judgment and execution within 7. years after the Proclamations In like manner if there be tenant for life the remainder for life the remainder in fee and the first tenant for life alien and the alienee levie a fine with Proclamations and the second tenant for life claim or enter c. this doth make void the fine both against him and against him in remainder also for it is a rule That any one that hath any estate in possession or reversion which will be barred by the fine when it is levied may make a claime or entrie to prevent the bar of the fine As tenant for his own or for anothers life tenant for years he in reversion or remainder after an estate for life or years a Copyholder or the Lord a Gardian in nature or nurture may avoyd a fine And this they may do for themselves and others for others without authority precedent or assent subsequent and the claim of one of them in this case shall availe the other And by authority also any other man may make a claim entry c. in this case for him that hath right and so he may doe also without any authority precedent if the party for whom he doth it doe afterwards agree and assent unto it But a stranger of his owne head unlesse perhaps it bee for an Infant cannot make such a claime or entry to prevent the barre of a fine except hee that hath the right doe give him authority before it be done so to doe or doe agree
judgment is given by the Court that the demandant or recoverer shall recover the land demanded against the tenant and that the tenant shall recover so much land of I. S. of his own land in recompence for the land recovered from him which he ought to have warranted and defended but suffered to be lost And this recovery over is called Recovery in value or pro Rata Quid. F. N. B. 1 34 Co 9. 6. a recovery in value or pro Rata But if the recovery be with a double voucher or a treble voucher I. S. is upon his appearance to call or vouch to warrant I. D. and to alleage in the same manner as the tenant doth and so pray that I. D. may come in and thereupon I. D. doth appeare and make default And so if there be more vouchers and then there must be severall recoveries over in value against every one of them but he that is the last vouchee is alwaies the common voucher who is one of the â—ryers of the Court of Common Pleas a man not worth any thing and one that hath no land to render in value upon the supposed warranty And by his devisei grounded upon the strict Principles of law the first tenant doth wllingly let goe the land for the assurance of the Purchasor and yet in truth hath no recompence over because the vouchee hath no land to â—ender in value And by this meanes if one have â—n estate taile in lands which he is desirous to sell or to convert into an estate in fee simple the same is commonly done for the tenant in taile doth cause the purchasor or some friend of his to bring a writ of entry against him for this land and he appeareth to the writ and in pleading â—aith that the land came to him or his Ancestors from such a man or his ancestors who in the conveyance bound themselves to warrant it And thereupon that man is called in who doth appeare and make default and thereupon Judgement is had against him in manner as aforesaid Or if he would have the recovery with a double voucher then doth he by fine feoffement or deed of bargaine and sale inrolled discontinue the land and then cause the recoveror that is to have the land to bring his writ of entry against the discontinuee and he doth vouch the tenant in taile who doth vouch over the common vouchee and so it is done and by this the estate taile that the tenant in taile hath or had is barred and bound for that it appeareth now he had no power to entaile the land whereunto he had no just title and besides â—â—e shall recover a recompence over in value and this is adjudged in law to goe in succession of estate as the land should have done which is the reason why the recovery is a barre to all that are in remainder and reversion aswell as to the issues in taile And in the suffering of these recoveries the tenants and vouchees Experientia doe appeare most commonly in person in Court and so the recovery is finished in the court presently without more doing but sometimes they will not or cannot appeare in person and then they doe use to appear and suffer the recovery by Atturney And in that case there must be a Conusance for a warrant of Atturney Warrant of Atturney taken to authorize the Atturney or Atturneys in this manner if it be for a treble voucher Glouc'ss Prec ' A S B uxori ejus quod juste c. redd ' C D Manerium West Sym. ubi supra de N cum pertinen ' c. que clam ' esse jus â—t hered suam in que iidem A B non habent ingress nisi post disseisinam quam H H injuste fine Judicio fecit prefat ' C infra 30. Annos jam ultim ' â—lapsos c. ut dic ' c. Glouc'ss A S B po lo suo W W R R Aâ—tornat sâ—â—os conjunctiâ— divisim versus C D de placito terre Glouc'ss M M gen quem A S B vocant ad warrant po lo. suo I I L L Attornat ' suos conjunctim divisim versus C D de placito terre Glouc'ss G W gen quem M M voc inde ad warrant ' po lo. suo R G R S Attornat ' suos conjunctim divisim versus C D de placito terre And in these cases to make two atturneys at the least and to Co. 10. 43. Co. 1. 94. give them an authority joyntly and severally that if one of them dye before the recovery be suffered the other may have power to doe and dispatch it And these warrants of Atturney for the suffering of recoveries are to be knowledged and certified in the same manner as the conusances of fines knowledged in the Country are save only that Recognisances for warrants or atturney for recoveries may be taken by any Judge of the Court of Common Pleas or any Serjeant at law without a Dedimus Potestatem But if any others take it they use to doe it by a speciall Dedimus Potestatem Dedimus Potestatem which is to command the Commissioners therein named to come to such persons and to take the names of their atturney or atturneys in the suit and to certifie the same into the Chancery under their Seales such a day And if there be any woman covert that is to make the conusance it seemes shee is to be examined as in the Examination case of the conusance of a fine And when this is done the recoveries may be suffered by the atturneys without the personall appearance of the parties And this is as good a recovery as the other which is suffered by the persons themselves appearing in Court but that it will require longer time for the perfection of it for in this case there must goe forth a Summoneas ad warran ' which must have nine Returnes ere the recovery can be perfected and by that time one of the parties may be dead And when the recovery is thus suffered by the parties in person or by their atturneys the same is to be entred by some one of the Clarks of the Court of Common Pleas upon the Rolles of the same Court there to remaine upon Record And herein there must goe forth a writ of Execution called an Habere facias seisinam which is sent to the Sheriffe of the Habere facias seisinam County where the land doth lye to put the Recoveror in possession of the land except the recovery be of a reversion of land after a lease for years of it in which case the reversion shall be in the recoverors by a claime without any writ And this writ the Sheriffe doth returne as executed according to the contents thereof albeit in truth he never doe any thing upon it And after this all the same proceeding is to be Exemplified by the Clarke of the
one grant tot ' ill'Maner ' de D. C if it be but one manor the words shall be taken for totum illud Manerium Fit Grant 41. Plo. 317. Co. 5. 12. 22. ass Pl. 61 Perk. Sect. 110. if two manors then it shall be taken for tota illa maneria And here note that most of all these rules run through all the cases Note of exposition he reafter following * The exposition of the severall parts of the deeds of grant And how the words and sentences therein shall be taken 1. In the premisses and what doth passe by the grant of a thing Touching things granted these rules are first to be known 1. When any thing is granted all the means to attaine it and all the fruits and effects of it are granted also and shall passe inclusive together with the thing by the grant of the thing it selfe without the words cum pertinentiis or any such like words Cuicunque aliquid conceditur conceditur etiam id sine quores ipsa non esse potuit As by the grant of Conusance of pleas is granted the Ordinary processe to bring causes to judgment By the grant of a ground is granted a way to it By the grant of Trees is granted with all power to cut them down and take them away by the grant of Mines is granted power to digge them and by the grant of fish in a mans pond is granted power to come upon the banks and fish for them Co. super Lit. 152. Lit. Sect. 572. 229. Co. 4. 86 87. 8 H. 7. 4. Bro. Grant 86. 144. 43 Ed 3. 22. Co. 10. 10. 64. super Co. Lit. 307. 2. The incident accessary appendant and regardant shall in most cases passe by the grant of the principall without the words cum pertinentiis but not è converso for the principall doth not passe by the grant of the incident c. Accessorium non ducit sed sequitur suum principale And therefore by the grant of a reversion without naming the rent the reversion after an estate taile for life or years and the rent reserved upon the estate will passe so as the tenant atturne to the grant but by the grant of the rent the reversion will not passe So by the grant of a manor the Court Baron therunto belonging wil passe by the grant of a house or ground the wayes thereunto belonging doe passe by the grant of errable land the common appendant thereunto will passe by the grant of Mills the waters flood gates and the like that are of necessary use to the Mills do passe by the grant of a house the estovers appendant thereunto will passe by the grant of a manor the advowsons appendant and villaines regardant thereunto passe by the grant of a Faire the Court of Pipowders will passe by the grant of homage or rent the fealty will passe and by the grant of Escuage homage and fealty will passe But divers things that by continuall enjoyment with other things are only appendant to others as warrens leetes waifes estraies and the like these will not passe by the grant of those other things and therefore if one have a Warren in his land and grant the land by this the warren doth not passe And yet if in these cases he grant the land cum pertinentiis or with all the profits priviledges c. thereunto belonging by this grant perhaps these things may passe And here know that a reversion may be parcell or appendant to a thing in possession and passe by the grant of it but a possession cannot be parcell or appendant â—8 H. 6. 38. Co. 11. 47. 50. Plow 103. Bro. Grant 60. 129. Co. 1. 7. 28. to a thing in reversion And therefore if one make a lease for life of a manor excepting 20. acres of it and after grant the reversion of the manor by this grant the 20. acres will not passe So if one be disseised of an acre parcell of a manor or of common appendant to the manor and before an entry or recontinuance of the acre or common he grant the manor to a stranger by this the acre of land or common will not passe But otherwise it is in case where a lease for years only is made of parcell of a manor And if a lease be made for life of 20. acres parcell of a manor and after the manor it selfe is granted by this the reversion of the 20. acres is granted and will passe also And if a man make a feoffment in fee of an acre of land parcell of a manor and after repurchase it and then grant the manor this acre will not passe by this grant for it is not united by the new purchase But it is otherwise of trees for if a man make a lease for life of a manor or other land excepting the trees and after grant the reversion of the manor or land to another hereby the trees doe passe And if a man make a feoffment in fee of a manor excepting the trees and after the feoffee buy the trees in this case the trees are united againe so that if the feoffee sell the manor the trees shall passe with it If I lease an acre of land to which an advowson is appendant for terme of life reserving the advowson and after doe grant the reversion of that acre with the appurtenances hereby the advowson doth not passe But if I grant the advowson for terme of life reserving the acre and after grant the acre with the advowson cum pertinentiis by this the advowson doth passe If land be appendant to an office there by grant of the office with the appurtenances the land will passe without livery of seisin And if an office be appendant to land there by the grant of the one the other will passe 3. That which is parcell or 14 H. 8. 25. Co. 11. 50. of the essence of a thing albeit at the time of the grant it be actually severed from it doth passe by the grant of the thing it selfe And therefore by the grant of a Mill the milstone doth passe albeit at the time of the grant it be actually severed from the Mill. So by the grant of a house the dores windows locks and keyes do passe as parcell of it albeit at the time of the grant they be actually severed from the house 4. By the grant of the land or ground 14 H. 8. 1. Co. super Lit. 4. it selfe all that is supra as houses trees and the like is granted for Cujus est solum ejus est usque ad coelum also all that is infra as Mines earth clay quarres and the like And by the grant of a 12 H. 7. 25. house the ground whereon it doth stand doth passe 5. When any matter of interest or profit is granted the grant shall be taken largely But when any matter of ease or pleasure only is granted Plow 289. 19 H. 6. 4. as a walk or the like
Sect. 719. be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the donee doth make a feoffment with warrantie and hath issue a sonne and a daughter and dieth this warrantie is lineall to the sonne and if the sonne die without issue male it is a lineall warrantie from the father to the daughter But if the brother in his life time release to the discontinuee c. with warrantie c. and after dieth without issue this is a collaterall warranty to the daughter Litt. Sect. 714. If lands bee given to the husband and wife and the heires of their two bodies engendred and they have issue and the husband discontinue and die and after the wife doth release with warrantie and die this is a lineall warrantie And if lands be given to a Co. super Litt. 375. man and a woman unmaried and the heirs of their two bodies and they intermary and are disseised and the husband doth release with warrantie and dieth and after the wife dieth this is a lineall warrantie to the issue for all the land And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue and the middle brother doth release with warrantie and die without issue and after the father dieth and after the elder brother dieth without issue and after the father dieth and after the elder brother dieth without issue so that the warrantie doth descend to the younger brother this is a â—neall warrantie to him And if a father give land to his eldest son and the heirs males of his body c. the remainder to the second sonne c. if the eldest son alien in fee with warrantie c. and hath issue female and dieth without issue male this is a lineall warrantie to the second sonne And in all these cases of a lineall warrantie if Litt. Sect. 711 712. Doct. St. 152 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple it is a barre without any assets for the rule is That as to him that demandeth fee simple by any of his Auncestors he shall bee barred and bound by a lineall warrantie that doth descend upon him unlesse hee bee restrained by some Statute But it doth not binde the right of an estate in fee taile without assets for in that case the rule is That as to him that demandeth fee taile by writ of Formedon in the Descendor he shal not bee barred by a lineall warrantie unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie and then it is a barre for so much onely as doth descend to him no more And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die in this case the issue of that issue is not barred by this warrantie and assets But if the issue to whom the warrantie doth descend bring his writ of Formedon and is barred by judgement by reason of the warrantie and assets in this case albeit he alien the assets afterwards yet the estate taile is barred for ever If tenant for life do alien in fee with warrantie or be disseised Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty And how such a warranty shall bar release to the disseisor with warrantie and die and the warrantie descend on him in reversion or remainder this is a collaterall warrantie So if the lessee for life be disseised and a collaterall Auncestor of him in reversion release with warrantie and die and the warrantie descend on him in reversion this is a collaterall warrantie for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. St. 152. land And if a man seised of lands in fee have issue two sonnes and the father dieth and the younger sonne doth enter and doth alien the land with warrantie and die without issue this is now a collaterall warrantie that is descended on the elder brother And if a sonne bee disseised of his own land and bring an 21 H. 7. 10. Assise and after the father doth release to the disseâ—sor with warranty and dieth this warrantie that doth descend to the sonne is a collaterall warrantie And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne and after he doth make a feoffment wich warrantie and die before the entrie of his sonne so that the warrantie doth descend this is a collaterall warrantie If there bee Litt. Sect. 707. father and two sonnes and the father is disseised and the younger sonne doth release wiâ—h warrantie to the disseisor and die without issue and then the father dieth in this case the warrantie now descended is a collaterall warrantie If a lease be made Co. super Litt. 388. for life to the father the remainder to his next heir and the father is disseised and doth release with warrantie and dieth this is a collaterall warrantie to the heire And if the husband discontinue the right of his wife and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die and after the husband dieth this is a collaterall warranty and a bar to her And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow 234. Kelw. 78. writ of Formedon if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty this is a collaterall warranty as if tenant in taile discontinue the taile and die having issue and the uncle of the issue doth release with warranty to the discontinuee and die without issue so that the warranty doth descend on the issue in taile this is a collaterall warranty So if such a discontinuee make a feoffment in fee or be disseised and the uncle release with warranty to the disseisor or feoffee and die without issue and the warranty doth descend on the issue this is a collaterall warranty If a tenant in taile have Litt. Sect. 708. three sons and discontinue the tail in fee and the middle brother doth release to the discontinuee with warranty and after the tenant in taile dieth this is a collaterall warranty to the elder brother If one have issue three sonnes and giveth land to the eldest Litt. Sect. 716. and the heirs of his body and for want of such issue to the middle and the heirs of his body the remainder to the third and the heires of his body and the eldest doth discontinue the
Co. super Lit. 391. attained of treason or felony hereby the warranty is gone and albeit he doe afterwards obtaine his Pardon yet the warranty is not revived If a feoffment with warranty be made to two or more and they Co. 6. 12. being Jointenants doe after by deed make Partition by this the warranty is determined So if two Jointenants be and one of them disseise the other and he that is disseised doth recover in an assise and hath Judgement to hold in severally hereby the warranty is determined * Adjudge Hil. 22 Jac. B. R. Eustace Sholes case So if A and B be Jointenants of white acre for life and A by fine doth grant to B totum quicquid habet in tenemeutis hereby the warranty is gone But if a Partition be made by Judgement upon a writ by force of the Statute of 13 H. 8. this doth not defeat the warranty fallen to them but it shall be divided between them and they shall all of them take advantage of it If one enfeoffe three with warranty to them and their heires Co. super Lit. 385. and one of them release to one of the other two hereby the warranty is gone for that part But if one of them release to the other two in this case the warranty is not gone but doth continue and they may vouch upon it If one enfeoffe two men and their heires and one of them doth Co. super Lit. 385. make a feoffment in fee hereby the warranty is not determined but the other may take advantage of it notwithstanding If the party that hath the warranty or the estate to which the Co. super Lit. 393. 392. Lit. Sect. 748. Release warranty is annexed release to him that is bound to warrant all warranties or all covenants reall or all demands by either of these releases the warranty is gone So also if by a defeasance made Deseasance between the parties it be agreed the warranty shall be void by this defeasance the warranty may be avoided also Or if it be so agreed that the warrantee or his heires c. shall not vouch or have a Warrantia cartae by this the warranty is avoided in part If tenant in taile doth enfeoffe his Uncle which doth enfeoffe another Co. super Lit. 391. in â—ee with warranty if in this case the feoffee release the warranty to his Uncle hereby the warranty is extinct But if a gift in taile be made with warranty in this case a release made by the tenant in taile of this warranty will not extinguish it If the parties between whom the warranty is intermary hereby Co. super Lit. 390. the warranty is suspended during the coverture in some cases If tenant in taile doth make a feoffment in fee with warranty Co. super Lit. 330. and disseiseth the discontinuee and dieth seised this doth suspend the warranty If two make a feoffment in fee and warrant the land to the Co. super Lit. 393. feoffee and his heires and the feoffee doth release the warranty to one of the feoffors this doth not determine the warranty of the other as to the moity So if one doth infeoffe two with warranty and the one of them doth release the warranty this doth not extinguish the warranty for the other moity but it doth continue still A warranty also may lose his force by taking benefit or making use thereof for after a man hath once taken advantage thereof in some cases he can make no further use of it of which read Co. super Lit. 393. And now having done with Deeds in generall and some of the parts thereof in speciall we are in order to come to some speciall kinds of deeds wherein we will first begin with a deed of Feoffment CHAP. IX Of a Feoffment FEoffamentum i. Donatio feodi strictly and properly is the gift 1. Feoffment Quid. New termes of the law Co. super Lit. 9. Lit. Sect. 57. or grant of any honors castles manors messuages lands houses or other corporall immovable things of like nature which be hereditable to another in fee simple i. to him and his heirs for ever by the delivery of seisin and possession of the things given And from hence comes the word Infeoffe for by this word and the Infeoffe words Give and Grant as the most apt words for that purpose is this kind of conveyance most commonly made Hence also it is that he that makes this feoffment is called the feoffor and he to whom it is made the feoffee Also it is sometimes but improperly Feoffor Feoffee called a feoffment when an estate of freehold only doth passe This kind of conveyance albeit it may be made in most cases by 2. Quotuplex See West Sym. 1. part Sect. 235. Co. super Lit. 6. word without any writing â—et it is most commonly done by writing and this writing is then called a Deed or Charter of feoffment but hence is the division of a feoffment by word or a feoffment by writing The ancient formes and examples of these deeds are very briefe and and yet they had these parts contained in them 1. The Premisses 2. The Habendum 3. The Tenendum 4. The Reddendum 5. The Clause of warranty 6 The In cujus rei testimonium 7. The Date 8. The clause of Hiis testibus Haec fuit candida illius aetatis â—ides simplicitas quae paâ—câ—lis lineis omnia fidei firmament a posueruut * Co. super Lit. 49. 9. Co. 1. 111 112. Plow 554. 9 H. 7. 24. 39 H. 6. 43. Co super Lit. 237. Perk. Sâ—ct 210. 24 E. 3. 70. Co. 1. 121. Co. 6. 70. Bro. scire facias 88. Plow 423 424. And this manner of conveyance as it is the most ancient kind 3. The nature and operation of it of conveyance so is it the best and most excellent of all others and in some respects doth excell the conveyance by â—ine or recovery for it is of that nature and efficacy by reason also of the livery of Seisin evermore inseparably incident to it that it cleereth all disseisins abatements intrusions and other wrongfull and defeasible titles and reduceth the estate cleerly to the feoffee when the entry of the feoffor is lawfull which neither fine recovery nor bargaine and sale by deed indented and inrolled will doe when the feoffor is out of possession And it passeth the present estate of the feoffor and not only so but barreth and excludeth him of all present and future right and possibility of right to the thing which is so conveyed insomuch that if one have divers estates all of them passe by his feoffment and if he have any interest rent common or the like into or out of the land it is extinguished and gone by the feoffment And further it barreth the feoffor of all collaterall benefits touching the land as condition power of revocation writs of error attaint and the like
sum this is no discharge of it And yet a release of the promise is a discharge of it And if A promise to me that if Hil. 16 Jac. B. R. Briscoe versus Heires I S doe not pay to me an hundred pound 1 Octobris that hee doth owe me that A will pay me the hundred pound 1º Novembris and I 10º Septembris release to him this debt or all actions demands in this case this release is not good to discharge this promise But by a release of the promise the same is discharged If a man release to another all actions and doe not say further Of actions Bro. Release 29. which he hath against him this is as good a release as if these words were inserted Quod necessario subintelligitur non deest And all these releases must be made by apt words and such as Co. 9. 53. law shall judge sufficient for that purpose And in all these cases care must be had there be no mistake Bro. Release 56. 58. for mistakes will make releases and confirmations void as well as other grants And therefore if A make a release to B in this manner Noveritis c. me A de B remisisse c. B omnes actiones quas idem B habet versus A whereas it should be quas idem A habet versus B this release is void If there be Lord and tenant and the Lord purchase the tenancy 8. What shall be said a Release in law Or not And how Co. super Lit. 264. by this means the services are released and extinct in law And if the Lord disseise his tenant and make a feoffment in fee by deed or without deed this is a release in law of the seigniory Of a seigniory Of a right to land If a disseisee disseise the heir of the disseisor and make a feoffment Co. idem with or without a deed this is a release in fee in law of the right And if he make a lease for life this is a release in law of the right so long as the lease doth last If a creditor as an obligee or the like make a debtor as the Of a right of action Co. super Lit. 264. 8 E. 4. 3. 21 E. 4. 2. obligor c. his executor by this means the action is released by act of law and yet the duty remains still for the executor may Executor retain so much of the goods of the testator And if the creditor be a woman and she mary with the debtor by this the debt is released in law And if there be two obligees or debtees and one of them being a woman is maried to the obligor this is a release in law of the debt albeit the creditor be an infant But if there be a woman executrix to the debtee and she take M. 30 31 El. B. R. Adjudge Co. 8. 136. the debtor to husband this is no release in law And if an obligor be made administrator of the goods and chattels of the obligee this is no release in law Where divers join in any suit or action to recover any personall Co. 6. 25. 5. 22. Bro. Release 84. 94. stat 23 H. 8. ch 3. 9. The force and virtue of it And how it shall enure and be construed and taken thing of which they are to have the joint benefit or interest when the law doth not compell them to join there the release of one of them shall bar all the rest And therefore if two men join in an action of debt trespassel or the like and one of them alone 1. In respect of the persōs And where a release made by one shall binde another And where not And where a release made to one shall enure to others Or not doth release to the defendant this is a barre to the other plaintiffs also So if a statute or an obligation be made to two or more and one of them release it to the conusor or obligor this is a discharge of the whole duty and a bar to the rest so that they can make no use of the statute or obligation But if divers be charged in any action and they for the discharge of themselves only join in a suit or action where also they can doe no otherwise being compelled by law to join in this case the release of one of them shall not hurt the others And therefore if divers join in a writ of Error Attaint or Audita querela and one of them release to the defendant in the writ this will not bar the rest of their remedy but they may goe on in their suit notwithstanding If there be two or more executors and one of them alone release 1◠H. 7. 4. Executors a debt or duty to the testator before judgement had in a suit had by all the executors against the debtor this will bar all the rest But otherwise it seems it is after judgement had If a writ of ward be brought by two and one of them release Co. super Lit. 205. this shall not bar his companion but shall enure to his benefit for hereby he shall have the whole ward A release made to the tenant in tail or for life of the right Lit. Sect. 452. 470. Co. super Lit. 275. 290. 267 268. Co. 8. 351. to the land shall avail and enure to him that hath a reversion or remainder in deed And so è converso A release made to him that hath a remainder or reversion will avail and enure to the benefit of him that hath the estate tail for life or years precedent As if a disseisor make a lease for life and the disseisee release to the tenant for life this shall enure to the disseisor So if he or a tenant for life make a lease for life the remainder for life the remainder in tail the remainder in fee and the disseisee or first lessor doth release all his right to any one of them in remainder this shall enure unto and benefit all the rest And if the husband make a lease of his wives land to one for life the remainder to another in fee and the wife after his death doth release all her right in the land to him in remainder this shall enure to the lessee for life If a disseisor make a lease for life and the disseisee release all Co. super Lit. 275. his right to the tenant for life this shall enure to the benefit of the disseisor But if the disseisee release no more to the tenant for life but all actions this release will not benefit him in remainder or reversion after the death of the tenant for life If a disseisor make a feoffment to two in fee and the disseisee Lit. Sect. 472. release to one of the feoffees this shall enure to both If tenant in tail be disseised by two and he release to one of Co. super
doe any thing against them By this release also of all actions a debt due to be paid upon a statute or an obligation at a day to come albeit the release be before the day is discharged and by this also the statute it self if it be at any time before execution is discharged And if one be to pay forty pound at four days and some of the days are past and some to come and the debtee make such a release by this the whole debt is discharged Also in a Scire facias upon a Fine or a Judgement this release is a good plea in bar But this release of all actions will not discharge Executions or bar a man of taking out of Executions except it be where it must bee done by Scire facias Neither will it discharge or bar a man of suits by Audita Querela or writ of Error to reverse an erroneous judgement neither will it discharge covenants before they be broken nor will it discharge any thing for which the relessor had no cause of action at the time of the release made as if a woman have title of dower and doe release all actions to him that hath the reversion of the land after an estate for life or a man is by an award to pay me ten pound at a day to come and before the time I make such a release or I make a lease rendring rent or an annuity is granted to me and before the rent-day I make the lessee or the grantor such a release in these cases and by a release in these words without more the dower debt rent or annuity is not discharged And if a man have two remedies or means to come by land Lit. sect 496 497. as action and entry or by goods as action and seisure or the like in this case by a release of all actions he doth not barre himself of the other remedy Et sic è converso And if a man doth covenant to build an house or make an estate and before the covenant broken the covenantee doth release unto him all actions by this the covenant it self is not discharged And yet after the covenant is broken this release will Co. super Lit. 292. discharge the action of covenant given upon that breach By a release of all a mans right into any lands or tenements Of all right Co. 8. 151. Plow 484. 6 H. 7. 8. Co. 3. 29. 6. 1. super Lit. 345. without more words is released and discharged all manner of rights of action and entry the relessor hath to in or against the land for there is jus recuperandi prosequendi intrandi habendi retinendi percipiendi possidendi and all these rights whether they accrue by fine feoffment descent or otherwise are extinct and discharged so that if the relessee have gotten into the land of the relessor by wrong by this release the wrong is discharged and the relessee is in the land by good title Also by this release are discharged and released all titles of dower and titles of entry upon a condition or alienation in mortmain And if a woman have title of dower after an estate for life and make such a release to him in reversion this doth barre her By such a release also from the Lord to the tenant the services are extinct But this release will not bar a man of a possibility of a right Co. 10. 47. super Lit. 289. that he hath at the time of the release or of a right that shall descend to him afterwards And therefore if the conusee of a statute before Execution release all his right into the land to the terretenant or the heir of the disseisee in the life-time of his father doe release to to the disseisor all his right these releases doe not bar them Nor will this release bar a man of an Audita Querela and such like things And yet if the tenant in a reall action after the demandant hath recovered the land release to him all his right in the land this doth bar him of a writ of Errour for any errour in the proceeding in that suit And if there be Lord and tenant by fealty and rent and the Co. super Lit. 150. Dier 157. Lord by his deed reciting the tenure doth release all his right in the land saving his said rent by this release the right of the seigniory save only of the seigniory of the rent and fealty is extinct And if the Lord release to his tenant all his right to the land and seigniory salvo sibi dominio suo c. hereby the services only not the tenure is extinct And if one have a rent-charge out of my land and make such Perk. Sect. 644. a release of all his right to the land to me that am the terretenant without exception of the rent hereby the rent is extinct and gone for ever By a release of all a mans title into lands or tenements without Kelw. 484. 6 7 8. Co. super Lit. 265. 345. more words is released and discharged as much as is released Of all title by the release of all a mans right and both these releases have the like operation for howsoever title strictly and properly is where a man hath lawfull cause of entry into lands whereof another is seised for which he can have no action yet it is commonly taken more largely and doth include a right also And Titulus est justa causa possidendi quod nostrum est By a release of all entries or rights of entry a man hath into Co. 8. 15â—â— Or entry or right of entry lands without more words a man is barred of all right or power of entry into those lands upon any right whatsoever And if a man have no other means to come by the land but by an entry and he hath released that by these words he is barred for ever But if one have a double remedy viz. a right of entry and an action to recover his right by and then release all entries by this he is not barred of his action By a release of all actions reall without more words are discharged Of actions reall Lit. sect 492 493. 495. Co. 8. 151. Lit. sect 115. 500. Co. super Lit. 288 289. all reall and mixt actions then depending and all causes of reall and mixt actions not depending And therefore all causes of suing of assises writs of Entry Quare Impedit actions of wast and the like which the party hath at the time of the release made are hereby discharged But this release will not bar him that doth make it of any causes of action that shall arise and accrue afterwards Neither will it bar him of an appeal of death or robbery writ of Error or any such like thing Nor of any thing which a release of all actions will not bar And yet when land is to be restored or recovered by judgement in a writ of Error this
134. Dye 185. 32. returned by the Sheriffe against the executor or administrator and not before a new execution is directed to the Sheriffe to levie the debt de bonis Testatoris and if there be none of them to be found in his hands then to levie them de bonis propriis And therefore if an Executor or Administrator be sued by a Creditor and the Executor or Administrator plead a plenè administravit generally or plead specially that he hath no more but to satisfie a Iudgement or the like and upon tryall this issue is found against him and it is found he hath in all or part enough to satifie the debt in these cases the Judgement is de benis Testatoris and thereupon an Execution is as in other cases to levie the debt de bonis Testatoris in the hands of the Executor or Administrator and for the costs de bonis propriis And upon the returne of the Sheriffe a speciall execution doth issue forth to levie the money de bonis Testatoris Et si constare poterit that he hath wasted the goods then that he shall make the execution d bonis propriis And hâ—reupon also the Plaintiffe may if he will have a Capias against the body or an Elegit against the lands of the Executor or Administrator and no other course of proceeding can or may be had against the Executor or Administrator in this case An action of debt was brought against two Executors and one Dyer 21â— of them did appeare and confesse the action and the other made default and thereupon Judgement was given to recover against them both de bonis Testatoris in their hands and execution accordingly and upon this execution the Sheriffe did returne a Devastavit against the Executor that made default only and hereupon a Scire facias went out against him alone and afterward an execution against him alone de bonis propriis Assets in this case is said to be where one dieth indebted and Termes of the Law Coo. super Litt. 374. maketh his Executor or dyeth intestate and the Executor or Administrator Assets Quid. hath sufficient in goods or chattels or other profits to pay the debts or some part thereof this is said assets in his hands and for so much he shall charged All those goods and chattels actions and commodities which were the deceaseds in right of action or possession as his own and 3â— What shall be said to be Assets in the hands of an Executor or Administrator to charge him Or not so continued to the time of his death and which after his death the Executor or Administrator doth get into his hands as duly belonging to him in the right of his Executorship and Administration and all such things as do come to the Executor and Administrator in liew or by reason of that and nothing else shall be said to be assets in the hands of the executor or administrator to make him chargable to a Creditor or Legatee And herein these things are to be known 1. That Assets in the hands of one of the executors shall be said to be Assets in the hands of all the executors Kelw. 51. 2. That Assets in any part of the world shall be said to be Assets Coo. 6. 47. in every part of the world and therefore if that point be in issue and it appeare that there is Assets in the hands of any one of the executors or in any County or place whatsoever the Iury must find that there is Assets 3. All goods and chattels of what nature or kind whatsoever that are valuable as oxen kine corne c. Coo. super Litt. 388. shall be esteemed Assets But such things as are not valuable as a Presentation to a Church and the like shaâ—l not be accounted assets 4. All the goods and chattels that come to the executor or administrator in the right of their executorship or administration and Coo. super Litt. â—88 5. 3â— that are by Law given to them by vertue thereof in the right of the deceased for which See before at Numb 25. and which Dyer 361. Kelw. 63. are in possession shall be esteemed Assets in his hands a Coo. super Litt. 54. Dyer 36â— And therefore if a Feoffment be made to the use of the Feoffor for life and after to the use of his executors and assignes for 20 yeares in this case it seemes this 20 yeares shall be said to be assets in the hands of the executor of the Feoffor b 20 H. 7. 4. Broo. aâ—sets 22. And goods pledged to the deceased and not redeemed or the money wherewith it is redeemed when it is redeemed shall be said to be assets in the hands of the executor or administrator c See Before Numb And if the deceased doth appoint that the executors shall sell his land to pay his debts the money that is made of the land when it is sold shall be said to be assets in his hands 5. All the goods and chattels in action or in possibility Coo. super Litt. 124. 5. 31. Broo. Assets 24. Dyer 264. 121. 2 H. 4. 21. Coo. 6. 58. Kelw. 63. Dyer 362. at the time of the death of the deceased that are afterwards recovered and are gotten in possession into the hands of the executot or administraror when they are so recovered ate esteemed assets in his hands But they are never accounted assets untill they are recovered and come in possession and therefore if there be debts owing to the deceased upon Statutes or Obligations or otherwise these are never esteemed assets in the hands of the executor or administrator untill he hath recovered them So likewise if there be debt or damages recovered by a Iudgement had by the deceased but no execution is done untill execution be made this shall not be esteemed assets in the hands of the executor or administrator So if the executor bring an action of trespasse against another de bonis asportatis in vita Testatoris and he have a Iudgement for damages in this case untill he hath recovered it by execution it shall not be esteemed assets in his hands And if the Indgement be erroneous and the execution avoidable in this case albeit it bee recovered and gotten in possession yet it shall Curia Mich. 13. B. R. not be esteemed assets And therefore if one sue another and recover against him as Administraror of I S and after a Testament made by I S is produced and proved and thereby an Executor is made in this case the money recovered by the Administrator shall not be said to be assets in his hands as to any of the Creditors because the Executor may recover it from him or the debtor will have it againe And if the Executor or Administrator do never recover and get the thing into his possession he shall never bee Coo. 1. 98. Plow 84. 292. charged especially there where he hath done his best to get
to it after it is done And therefore if a stranger of his owne head will make an entry or claime into land whereof a fine is levied whereunto I have right and he doe it to my use and I doe not agree to it within the 5. yeares this entrie or claime will not avoid the fine And yet it was held by Just Dodridge M. 2 Car. B. R. that if a stranger enter in my name and to my use that have the right that this doth vest the estate in me before agreement and I shall be said to agree untill I doe disagree A fine also is and sometimes may be avoided by plea As by Stat. 4 H. 7. c. 24. Co. 3. 141. 88. Dyer 334. 3. By a plea. Averment of the continuance of seisin of the Land in another at and before the time of the fine levied and that partes finis nihil habuerâ—nt tâ—mpore levationis finis and then he must shew in whom the estate was As if lessee for yeares or a disseisee levie a fine to a stranger that hath nothing in the land or A be disseised by B and B bee disseised by C and B levy a fine to D or one that hath a right of a remainder only or a disseisor make a gift in taile and the donee make a feoffement to A and after levie a fine to a stranger that hath nothing in the land But this plea it seems neither parties nor privies albeit they bee issues in taile may have at this day but strangers only and therefore in the last case the disseisor and not the issue in taile may avoyd this fine by this plea. But if a Collaterall Ancestor of whom the issue in taile doth not claim the land levie such a fine the issue may by this plea avoid it It seems also the issue in taile may have this plea to a fine Sur Release only Also there is a plea by which as it seems a fine hath been avoidable which in effect is nothing else but an averment of seisin still Co. 3. 84. Dyer 334. 290. Stat. 27 E. 1. c. 1. in the demandant or plaintiffe or his heires before at and after the time of the fine levied And this plea as it seems no man may have at this day but the issue in taile only to avoid a fine levied Sur grant Render by the Ancestor in taile and not to avoid a fine levied Sur Conusance de droit come ceo que il ad de son done c. And a feme Covert to avoid a fine levied by her husband alone If there be two of one name and one of them levie a fine of the land of the other or a stranger levie a fine in the name of him 34 H. 6. 19. 19 H. 6. 44. that is owner of the land in both these cases the fine may be avoyded by pleading the speciall matter And yet some hold that in this case the party hath no remedy but by action of disceit A fine also is and sometimes may be avoided by the sentence of 4. Pâ—a Vacat a Court when it appeareth to be gotten and obtained by some notorious fraud or practise And now it is high time we come to the second kind of common assurances made by matter of record viz. a Common Recovery CHAP. III. Of a Common Recovery A Recoverie in generall is the obtaining of any thing unjustly 1. Common Recovery Quid. Co. super Lit. 154. See the Preamble of the stat of 23 H. 8. cap. 10. 23 Eliz. cap. 3. Doct. Stud. 41. West Sym. tit Recovery taken or detained by judgment or triall of Law And it is either a common recoverie which is such a recovery as is used for a common assurance of land or other recovery which is not used as an assurance of land And the common recovery that is used for the assurance of land is nothing else but â—ictio juris or a certaine forme or course set downe by Law to be observed for the better assuring of lands and tenements to men And this is somewhat after the example of the recovery upon Title which is without consent and contrary to the will of him against whom the same is had for Recoveror Recoveree Vouchee there is in this a colourable suit wherein there is a demandant which is called the Recoverer and a tenant which is called the Recovere and one that is called to warrant upon a supposed warranty which is called the Vouchee The common recovery is somtimes with a single voucher which 2 Quotuplex is when the writ is brought against him that is to passe the land immediately and he doth vouch over the common vouchee And sometimes it is with a double voucher which is when the writ is brought against another to whom he that is to passe the land hath aliened it and he doth vouch him that is to make the assurance and he doth vouch over the common vouchee and this is the â—urest way and the saâ—est kind of recovery In this formality of a common 3 The manner and order of suffering a Common Recovery recovery the course is that by agreement of the parties a reall See the places before Co. 1. â—4 10. 43. 45. action is begun by a writ of entry brought by him that is to have the land assured against him that is to make the same assurance if it be with a single voucher or if it be with a double voucher against him to whom he that is to make the assurance hath aliened the land And in this suit the recoveror that doth bring the action doth â—urmise that the tenant against whom the writ is brought hath no right to the land but that the recoveror hath right thereunto and that the tenant came to it from such a stranger whom the demandant doth name And to this the tenant doth appeare in person or by Atturney and then doth enter into defence of the land but in pleading doth vouch to warrant i. doth alleage that he bought the land of I. S. a stranger who in the conveyance thereof bound himselfe and his heirs to warrant and make good the title to him or them to whom it is conveyed and thereupon he prayeth that I. S. may be called in to defend the title and then hee is allowed by the Court to call in I. S. to say what he can for the justifying of his right to the land before he so conveyed it And hereupon I. S. doth appeare and make shew as if he would defend the title but doth pray a further day may be assigned him to make his defence which being granted him by the Court at the day appointed he by agreement covin and assent of the parties doth not come in but make default And thereupon the land is to be recovered by him that brought the writ against the tenant and he is left for his remedy to I. S. upon his warranty and accordingly
hurt and for some cause make void the deed as in some cases it may there it shall not relate But if relation may helpe it as in case where a feme sole deliver an Escrow and before the second delivery she is married or dieth in this case if there were not a relation the deed would be void and therefore in this case it shall relate So if one disseise me of two acres of land in D and I release to him all my right in my lands in D and deliver it to an estranger as an Escrow c. untill a time and before that time he disseise me of another acre there in this case this release shall not by relation extend to this other acre to barre me of that also But as to collaterall acts there shall be no relation at all in this case And therefore if the obligee release before the second delivery the release is void and will not barre the party obligee of the fruit of his obligation If a man that is party or privy in estate or interest or one that doth justifie in the right of one that is such a party or privy shall 9. When and where a deed must be shewed in Court And how long it shall abide there And who may take advantage of it Co. 10. 92. super Lit. 267. 317. 225. 231. 5. 74 Lit. Sect. 375. plead a deed in any Court although he claime but parcell of the originall estate yet in this case he must shew the originall deed to the Court and the reason of this is to the end that the legall part of the deed the triall whereof belongeth to the Judges may approve it selfe i. that it may be seen whether the composition of words be sufficient in Law or not and then that it may appeare whether the estate be with Condition Limitation or with power of revocation c. to the end that if there be any such thing in it and there be no other part of it the other party may take advantage of it and then that it may appeare to be without resure or interlining and the like and also that it may appeare to be well sealed and delivered the triall whereof doth now belong to the Country But strangers to estates that are neither parties nor privies shall not be compelled to shew the deed though they make use of him And when a deed is thus shewed in Court it must remaine in that Court all the Terme wherein it is shewed in the custody of the Custos brevium and at the end of the Terme if the deed be not denied the Law doth adjudge the possession of the deed in him to whom it doth belong But if the deed be denied then it is to be kept there untill it be determined Also when a deed is shewed in Court the adverse party may take any advantage by it that it will afford him as if a feoffement be made by deed poll on condition and the feoffee doth breake the condition and the feoffor doth enter and the feoffee doth sue him and makes his title by that deed the feoffee may take advantage of the Condition Any man that that occasion to use or plead a deed may set forth 10. Where one may say his deed was delivered at another time or in another place the delivery thereof to be at any time after the date of the deed Dier 315. 12 H. 6. 1. Co. 2. 4 5. and in some cases he must doe so if he will have any advantage by it As if he plead a release to an obligation and it beareth date before the obligation in this case he must averre that it was delivered after or it will not availe him But a man may not in pleading set forth the delivery of a deed to be before the date of the deed And yet if it be so that a deed be dated after the time of the delivery of it the deed is good and therefore if he that doth use such a deed doe plead and set it forth as a deed made before the time of the delivery and the party that made it plead non est factum to the deed a Jury upon the triall may finde the truth of Estoppell the case but if hâ— by his pleading set forth the deed to be delivered before the time of the date then the Jury is concluded aswell as the party himselfe for a Jury is estopped to finde any thing contrary to that which is apparently admitted in the record In 12 H. 6. 1. debt brought by an executor the defendant pleaded the release of the Testator which did beare date after the death of the testator but he did averre the delivery of it in the life time of the testator and the Court did not allow of this plea. Sometimes Antiquity added a place where the deeds were made Co. super Lit. 6. as Datum apud B and this was in disadvantage of him to whom the deed was made for if the deed be in generall and without this addition he may alleage the deed to be made where he will An Co. super Lit. 261. obligation made beyond the Seas may be sued here in England in what place the obligee will and if it beare date at the Burdeux in France it may be alleaged to be made in quodam loco vocat Burdeux in France in Islington in the County of Middlesex and there it shall be tried for whether there be such a place in Islington or not it is not traversable in that case Non est factum is an answer to a declaration whereby a man 11. Non est factum Quid. And where this may be pleaded to a deed or not denieth that to be his deed whereupon he is impleaded If any deed or writing be used against a man in any Court and it want writing sealing or delivery or it be not sealed written and delivered as before is set forth the party that is sued upon it or against whom it is pleaded may plead this plea to it So also if a deed by any Alteration of rasure c. become void in this case the party may plead this plea to avoid it So also where a deed doth become void or lose his virtue by the not reading or not true reading of it to an illiterate man or by refusall or disagreement as in the cases before the party may plead this plea to avoid it But in all cases where the deed is voidable and so remaineth at the time of the pleading as if an Infant or man of full age by duresse seale and deliver a deed or if an obligation be well sealed and delivered by two and the deed be joynt and the obligee sue one of them in these and such like cases the party bound by the deed may not plead Non est factum for in the first and such like cases he must avoid it by speciall pleading with conclusion of Judgment si Action c.
and in the last he must plead in abatement of the writ c. And if an obligation or any other deed be by any speciall act of Parliament made void the party that is bound by it cannot plead this plea of Non est factum to it but he must avoid it by speciall pleading of the matter and taking advantage of the Statute and so with conclusion of Judgement si Action c. And now we come to the Exposition of deeds CHAP. V. Exposition of Deeds IT is further to be observed that Deeds for the most part consist of these things viz. the Premisses Habendum Tenendum Reddendum or reservation Condition Warranty and Covenant And in the Premisses there is sometimes a Recitall and somtimes an Exception contained but all these are not essentiall parts of a deed for a deed may be good albeit it have not all these parts or it be not so formall and orderly drawn and made The Premisses of a deed is all the forepart of the deed before the Co. super Lit. 6. 7. Co. 11. 51. 2. 55. Plow â—96 Habendum And yet this word is sometimes taken for the thing 1. Premisses Quid. demised or granted by the deed And the office of this part of the deed is rightly to name the grantor and grantee and to comprehend the certainty of the thing granted either by expresse words or by that which by reference may be reduced to a certainty and the exception or thing to be excepted if there be any And in this part of the deed is the Recitall if there be any in the deed for the most part contained And herein also is sometimes though improperly set downe the estate The Habendum of a deed is that part of the deed which doth 2. Habendum Quid. begin with To have and to hold And this doth properly succeed Co. super Lit. 6. 7. 10. 107. the Premisses And the office hereof is to set downe againe the name of the grantee the estate that is to be made and limited or the time that the grantee shal have in the thing granted or demised and to what use And herein also is sometimes though needlesly set downe againe the thing granted But the deed that doth usually consist of all these parts may be good notwithstanding some of 3. Where a deed is good notwithstanding some seeming fault in the Premisses or Habendum them be omitted and it be not so formally made For an estate may be made by a deed without any Habendum at all As if one give or grant land to another and his heires without any more words in the deed or if one give or grant land to another and limit no estate without any Habendum in the deed and seale and deliver this deed and make Livery accordingly in both these cases the deed is good and in the first case an estate in fee simple is made and in the last case an estate for life is made And if the name of the grantee be not contained in the Premisses yet if it be in the Habendum it may be good enough As if one give or grant land Habendum to B and his heires and he is not named in the Premisses yet this is a good deed to make an estate in fee simple And yet if the thing granted be only in the Habendum and not in the Promisses of the deed the deed will not passe it And therefore if a man grant Plow 152 Dier 96. Perk. Sect. 251. blacke acre only in the Premisses of a deed Habendum blacke acre and white acre white acre will not passe by this deed But if the thing newly added be implied in the thing granted by the Premisses of the deed as being an incident thereunto or otherwise or it be the same thing and expressed in other words only in these cases the Premisses and the Habendum may stand together As if one grant a manor Habendum the manor with the Advowson appendant to the manor or if one grant a Reversion of land by the name of a reversion in the premisses Habendum the land it selfe in both these cases the deed is good and the advowson and reversion will passe So also if livery of Seisin be made of the thing newly added in this case perhaps it may passe by the Livery And if the thing granted be lefâ— out in all or in part in the Habendum yet the grant is good And thereof if one grant land to A Habendum to A his heires c. or if one grant white acre and blacke acre to A Habendum white acre to A and omit black acre yet these deeds are good and all that is contained in the premisses of the deed doth passe in both cases And if a feoffement be made to one Habendum Lit. 1. Co. super Lit. 46. Co. 6. 35. New Terms of the Law tit Assignes to him and his heires without the word Assignes this is a good feoffement and the estate thereby made is assignable as where a lease is made to one his executors and administrators without the word Assignes this is a good Lease and assignable So if one grant land to A Habendum to him for 100. years or Habendum to him and his assignes for 100. years these are as good leases as the lease that is made by these words Habendum to A his executors administrators and assignes for 100. years So if a lease of land be made to A Habendum the land to him and his heires for 100. years this is a good Habendum and the word heirs is void and it shall goe to his executors c. As also where land is granted to A Habendum to him and his Successors for 100. years this is a good lease and the word Successors void for it shall goe to executors c. And if a lease be made Habendum for years and say not how many years this is a good Habendum and a lease for two years A Recitall is the setting down or report of somthing done before 3. Recitall Quid. 4. Where it is needfull or not When a man is to take any new estate from the King of a thing Co. 1. 45. Dier 77. whereof there is any estate in being there the former estate if it be good and of record must be rehearsed and recited in the deed or else the second grant will not be good but in case of a common Person there needs no such recitall neither when a man is to derive an estate out of a former or assigne over a terme of years is it needfull there should be any recitall of the former estate in being 5. Where misrecitâ—lâ— will hurt a deed or not If one recite or rehearse an estate made foâ— terme of years and Co. 1 74. then after grant over that terme to another and mistake in the recitall this mistake may make all void As if a Fieri facias come to a Sheriffe to levy a debt