the said lands and after the land held in Capite is recovered from him or aliened by him bonâ âide in these cases the Devise is good for all the land held in Socage And hence it is That if the King grant land to one in Fee Farm to hold in Socage at a rent and after grant this rent to another and his heires to hold in Capite and the Grantee of the rent doth grant it to him that hath the land in this case because the rent is extinct and he cannot be said to hold lands in Capite this shall not restraine the Devise of any of his lands And yet if a man hold some lands by Knights Service in Capite and other lands in Socage and bee disseised of the lands held in Capite he cannot devise all his Socage land but the Devise will be void for a third part for he is said to have that land still whereof hee hath the right And albeit the Statute say that he that hath lands held of the King in Capite and other lands in Socage may give two parts for the advancement of his wife paiment of his debts preferment of his children whereby he is restrained to devise any more And therefore if by act executed in his life time he convey two parts to any such uses or intents he cannot devise any more by his Will but the residue must discend yet this also is to be intended of the land he hath at the same time For if a man be seised of land held in Socage of the yearly value of 20l. per annum and he hath not any land held in Capite by Knights Service and he make his Will in writing and by it devise his Socage land to one in Fee and then purchase land of the value of 20 s. per annum held in Capite and die this will make the Devise void for a part of the land that is held in Socage But if a man seised of land in Fee of Socage Tenure assure it to the use of his wife for her âointure and after purchase lands held in Capite by Knights Service he may devise two parts in three of all this Capite land and the King shall not have any thing out of or for the Socage land If a man seised of lands part of which are Coo. 3. â4 ãâã â4 held in Capite and part in Socage make a Feoffment of the lands held in Capite being two parts in three of the whole to the use of him and his wife for life with divers remainders over in this case he may not devise any of the Socage land And if a man have no Socage land but Capite land and convey it away iâ Fee-simple keeping no Reversion to any such use and after purchase Socage land he may devise all the Socage land newly purchased 6. As Coo. 3. 32. the Testator enabled to devise by this Statute without restraint is and must be one that hath the land he doth devise at the time of the Devise made and no other land then to be an impediment to his Devise so he must have a sole estate as well in the land he doth leave to discend to the heir as in the land he doth Devise And therefore if lands held in Capite be conveyed to a man and his wife and the heirs of their two bodies and this man hath other lands whereof he is sole seised held of the King in Capite by Knights Service in this case he may not devise two parts of the whole supposing this may suffice for the Kings third part for he may devise but two parts of the residue i. e. of that whereof he is sole seised either at the time of making of the Will or at the least at the time of the death of the Testator 7. The estate of the land that is held must continue after Coo. 10. 8â the death of the Tenant otherwise it will be no restraint And therefore if Tenant in Taile be to him and the heirs males of his body the remainder in Fee to another of Lands held by Knights Service in Capite and he is seised of other lands in Socage in Fee and by his Will in writing devise all the Socage land and die without issue male in this case the Devise is good for all the Socage land And so also it is where the estate the Ancestor had of the land held is defeated by condition 8. That which a man cannot dispose by any act in his life time shall not be taken for any such Mannors c. Coo. ãâã 32. whereof a man may devise two parts by authority of this Statute at his death And therefore in the case of an indevided estate of lands between husband and wife where the husband can make no disposition for longer time then during the Coverture these lands are not to bee esteemed such as are to be accounted amongst the lands whereof two parts in three are devisable 9. The Tenure by Coo. 10. 84. 3. 34. Knights Service must continue after the death of the Devisor otherwise the land so held will be no restraint And therefore if the King grant land to one and his heires to hold during his life by Knights Service in Capite and after in Socage or to hold during his life in Socage and after by Knights Service in these cases the Grantee may devise all his land notwithstanding the Tenure of this land 10. The King or other Lord must have a full and clear Coo. 3. 32. 31. super L. ãâã 111. 10. 8â yearly value of the third part left to discend to him and the value is to be esteemed as it is and doth happen to be at the time of the death of the Testator for the King or other Lord must have the like and equall benefit for his third part as the Devisee hath for the two parts without diminution or substraction when therefore a man will have his Devise good for the residââ he must take care that the third part be so left for if the third part be not valuable or be charged with any rent c. or be upon any incertainty as if it be upon a possibillity only as where a man and his wife be seised of a joint estate Taile made during the Coverture and he Devise other lands to her on condition that she shall wave her estate made during the Coverture and so intend that that part of his land shall be left for the Kings part this Devise will not be good for the residue and albeiâ the wife doe wave the estate after the husbands death yet this will not help the matter or make the Devise good for that part for which it was void before But it is not materiall by what Tenure the third part discending be held For it is holden by the better opiâion That if a man be seised of 20 l. land held of the King in Capite and 10 l. land held
then the 500l the interest and the 200l is cast together and so we agree upon an Annuity of 80l per annum for fourteene years which is assured by Conveyances unto me in this case the contract is usurious and all the assurances made to perfect it are void And yet regularly where the principall mony is lost Curia Hil. 14. Ja. B. R. Sanders case the contract is not usurious If a man desire to borrow of me 100l for a yeare and I am content to let him have it for the use of 8l but withall I compell him to take a lease of me of a house at 60l rent which in truth is worth but 30l this contract is usurious and therefore the assurances thereupon made void Et sic de similibus But if a man the 17th of July 1579. grant me a rent of 20l. per Co. 5. 69. annum for the loane of 100l to be paid every halfe yeare and the first payment at Christmasse 1580. and it is agreed between us that if he pay the 100l the 17th of Iuly 1580. that then the rent shall cease this contract is not usurious and therefore the assurances thereupon made are not void but good But if in this case there be a private or collaterall agreement between us that he shall not pay the 100l and redeem the rent and that clause be put in only to evade the Statute then is the contract usurious notwithstanding and the deeds and assurances thereof void Et sic de similibus If one borrow 100l after the rate of 8l per centum and Hill 7. Jac. B. R. Curia the borrower do afterwards pay part of the principall and all the use within the yeare and the lender doth receive it or the lender doth sue for his mony within the yeare these subsequent acts do not make the contract or deeds or assurances thereof void for it is a rule that if the originall contract be not usurious no matter ex post facto can make it so If one borrow of me 10l and bind himselfe Bro. Obligation 79. to pay me by a day and moreover bind himselfe that if he pay it not by the day that he shall pay me 20l. for it this contract and the deed for perfection of it are good for this is not usurious for all Obligations with conditions for payment of mony lent are of this nature And yet if one borrow 100l of me and for this mortgage land to me of a greater value then 8l per annum on condition that if he pay the mony at any time before the years end then the assurance to be void this should seem to be an usurious contract for in this case I am sure to have by the agreement more then after the rate of 8l per centum and so it is not in the last case before If one borrow 100l for a yeare and give the Broker 20l. Per. âust Brigman Hil. 7. Car. to procure it this will not make the contract usurious nor the assurances void but for this the Broker may be punished Also all Obligations made to a Sheriffe contrary to the Statute Obligations made to a Sherriffe contrary to the statute Collusion in âraudulent convâyances 1. To deceive purchasors of 23 H. 6. ch 10. are void or at least voidable by pleading But of this see in Obligations infra A deed also made containing Stat. 27 El. ch 4. Co. super Lit. 3. stat 39 El. âh 18. the Grant of any thing with intent and of purpose to deceive and defraud one that shall afterwards buy the same thing is void For it is to this purpose provided by a Statute Law That all fraudulent conveyances of land or any rent or proâit out of land made by whomsoever with intent to deceive or defeate any that shall purchase the land or any rent or profit out of it for mony or other good consideration of the fruit and effect of their purchase shal be void against such purchasors for so much as they buy and against all others that come in by or under them But all such conveyances as are made bonâ fide and upon good consideration are not to be accounted fraudulent For the better understanding of which Statute and the Law in these cases observe That conveyances bonâ fide are opposed to such as are upon and with any trust expresse or implied And good considerations are set down in the Statute to distinguish from such as are not valuable as nature bloud and the like If one convey land with a present or future power of revocation or alteration at his will that doth convey it this shall be said a fraudulent conveyance as against him that shall afterwards purchase this land So that if one convey his land to the use of himselfe for life and after to the use of divers of his bloud with a future power as after the death of H or after such a day to revoke it and before the Co. 3. 82. 83. day he sell this land to a stranger for a valuable consideration in this case the first deed shall be said to be fraudulent and void as to him that shall purchase the land to doe him any hurt And if one convey land with such a power of revocation and after with an intent to defraud a purchasor make a feoffment to a stranger to extinct the power and after sell the land for valuable considerations to a stranger in this case both the first and the second deed as to the purchasor shall be said to be fraudulent and therefore void And if there be grandfather father and son and the grandfather makes Co. 6. 72. a lease for 100. years to the father and the father to prevent the drowning of the lease by the descent of the reversion to him doth assigne over the lease to certaine friends of his to the use of his son an infant under pretence to pay debts the grandfather dieth the father doth continue the occupation of the land and maketh estates and doth all acts as owner of the land the sonne payeth no debts and the assignement albeit divers persons of quality were named assignes was delivered to one of the assignes of meane estate in private and after the father doth sell the land for valuable consideration in this case this assignment shall be taken to be fraudulent and void as to the purchasor And if the father make a fraudulent conveyance and after continue the occupation of the land and it descend to the sonne after the fathers death and he sell it for valuable consideration in this case the purchasor may avoid the conveyance made by the father as well as if it had been made by the sonne himselfe and that whether the sonne be privie to the conveyance made by his father or not And if the fraudulent conveyance bee made to the King yet it is void as to a purchasor as if it were made to a common person And
therefore if there bee tenant in taile the remainder in taile or in fee and he in the remainder perceiving the tenant in taile doth intend to sell the land and barre him by a common recovery doth sell his remainder by deed inrolled to the King and after the tenant in taile doth sell the land by common recovery for good consideration in this case the purchasor shall avoid this deed to the King whereby also appeareth that a fraudulent conveyance within this statute may be by way of bargaine and sale And so was it ruled by the Lord Chiefe Justice Hide in evidence to a Jury at Guildhall 3. Car. And if there be a lease for years and the lessor make a fraudulent conveyance in fee M. 4. Jaâ Cowell Bart. case and then for good consideration maketh another lease to begin at the end of the former lease this conveyance shall be void as to the second lessee And if A make a lease to B for years upon good considerations Per. 2 Iust Hil. 18 Jac. B. R. and after he makes another lease to C of the same thing for the same term to begin at the same time upon good valuable consideration and B doth not discover this but drives this bargaine with C and is witnesse to this second lease and the first lease is not excepted in the second lease it seems in this case the first lease shall be void as to C. And in all these and such like cases albeit the purchasor before he make his bargaine have notice of the fraudulent Co. 5. 60. Co. 3. 83. conveyance yet shall he avoid it as if he were ignorant of it But such conveyances and deeds made as before shall never be said to be fraudulent and void as against him that shall have the thing afterwards if he do not give a valuable consideration for it And therefore if one make a lease that would be fraudulent void as to such a purchasor to A and after make another lease bonâ fide to B but without any rent or fine given for it in this case the first lease shall not be said to be fraudulent as against the second lessee and therfore not void So if one covenant for the advancement of his heirs males c. to levie a fine of land by a day to the use of himself for life and after of his issue male and before the day he make a lease that is fraudulent for many years of purpose and after he doth levie a fine accordingly in this case this lease is good and shall not be said to be fraudulent and void by this Statute as against the issue in taile So if a man that is somwhat foolish and given to wast be perswaded to settle his lands upon some of his friends of purpose to maintaine himself with it and after some of his lewd companions inveigle him and get him for a small sum of mony to conveigh it to them in this case the conveyance first made shall not be said to be fraâdulent as against these purchasors and therefore it is good against them And if one that hath a terme for 60. years if he live so long make it away Co. super Lit. 3. and then hee doth forge a lease for 90. yeares absolutely and after by indenture reciting this forged lease for valuable and good consideration doth bargaine and sell this forged lease and all his interest in the land to I S in this case it seems that the first lease is not void and that the purchasor shall have nothing but the forged lease A deed also made of any thing with intent and purpose to deceive Stat. 3 H. 7. 4. 2 R. 2. ch 3. 1â El. ch 5. Co. 3. 82. 2 To deceive creditors and others of debts and such like duties and defeate Creditors of their just debts and duties is void also as against such persons For it is provided to this purpose by other Statutes That all feoffments gifts grants alienations bargaines and conveyances of lands tenements hereditaments goods and chattells or any rent profit or commodity out of land made by fraud or collusion of trust to him that made the same or otherwise with intent to hinder and delay or put off or put by Creditors or others of their just and lawfull actions suites debts accompts damages penalties forfeitures hariots mortuaries or reliefes shall be void as against them to whom such thing shall belong and hee may recover the thing notwithstanding but all such as are made bonâ fide and upon good consideration are not to be accounted fraudulent by this Statute For the better understanding whereof these cases following are to be heeded If a man a little before his Co. 5. 60. 3. 82. Dyer 295. death make a conveyance of his land to his children or friends of his bloud with a proviso to make it void at his pleasure and he take the profits of it as his own or make a conveyance of it to friends to the intent they shall not be subject to the payment of his debts having bound himselfe and his heires by any especialty or to the intent that a warranty and assets shall not bind his sonne for other land or the like in this case this conveyance shall be void as to them that should have reliefe upon this land by the dissent and especially when the conveyance is made after suites begun and more especially when any judgment is had upon the suits against him that doth make the deed And so also is the law for goods And therefore if one be indebted to A 20l. and to B 40l Co. 3. 80. 83. Bro. Done 20. Plow 54. and be possessed of goods to the value of 20l. and A doth sue the debtor for his 20l. and hanging this suite the debtor secretly makes a generall deed of gift of all his chattels reall and personall to B in satisfaction of his debt and yet doth afterwards continue the occupation and use the goods as his own and after A getteth judgment and execution in this case the deed of gift to B shall be said to be fraudulent and therefore void as against A. So if in this case he give all his goods to B in satisfaction of his debt and before any suite begun by A with any expresse or implicite trust as to the intent that B shall be favourable to the debtor or that if the debtor provide the mony that he shall have the goods again or that he shall suffer the debtor to enjoy and use the goods and pay him as hee can in these and the like cases the deeds shall bee said to bee fraudulent and void for howsoever it bee made upon good consideration yet it is not made bonâ fide So if one in consideration of naturall affection or for no consideration give all his goods to his child or cousin bonâ fide this shall be a void deed as to the Creditors Et sic de similibus
the like it must be done at the time agreed upon and set down in the condition And in cases where it is to be done before a time certain it must be done before that time or else the condition is broken But in all cases where no time is set for the doing of the thing contained in the condition be it to pay money make an estate or the like if the act to be done bee to be done to the party that doth make the estate or be to be done to him and a stranger and be such a thing as is for the benefit of him that doth make the estate and for his benefit only there regularly the party that is to doe the thing shall have time to doe it during his life unlesse the party feoffor c. that doth make the first estate whereunto the condition is annexed doth hasten the doing thereof by request for if he request the doing thereof and set no time it must be done within a convenient time after that request and if he request and prefixe a time convenient when he doth desire to have it done it must be done at that time and in these cases the condition cannot be broken without a request so long as he to whom the estate upon condition is made be living And therefore To pay mony Testament in this case it is not like to a condition made by a Wil for if one devise his land to I S so as he pay the twenty pound to I D the Testator doth owe him and no time is set for the payment thereof in this case he must pay it as soon as it is demanded or he doth forfeit the land and the heir may enter But if the thing to be done be to be done to a stranger and be for the profit and benefit of a stranger only as if a feoffment be made on condition that the feoffee shall To mary I S. mary the daughter of the feoffor or on condition that the feoffee shall infeoffe a stranger and no time is set for the doing hereof in To infeoffe these cases the feoffee shall not have time during his life to doe it but he must do it in a reasonable time and that without any request at all or else he doth break the condition And in some speciall cases when the act to be done is to be done to the party himself the party shall not have time to doe it during his life as if one grant land To grant an Advowson or a rent to I S on condition that he shall grant an Advowson to the grantor for his life or on condition that he shall grant a rent charge to the grantor during his life to be paid at Michaelmas and our Lady day in these cases the grant of the Advowson must be before the Advowson fall and the grant of the rent must be before either of the days of payment come and that without request else the condition is broken And if the condition be that if I S do such an Perk. Sect. 9. 798. act that then the feoffee shall pay ten pound to the feoffor else To pay mony that the feoffor shall reenter and no time is set when the feoffee must pay this ten pound in this case it seems the payment must be as soon as the same act is done and that without any request at all And in case where the feoffee c. or a stranger be to doe an Co. super Litt. 209. act and he alone is to doe it and it doth nothing concern the feoffor c. as to goe to Rome or the like there the feoffee c. or stranger shall have time during his life to doe the thing and it cannot be hastned by request If lands be granted on condition that the grantee shall make a To make a lease Co. super Litt. 220 222. lease for life of other lands to the grantor the remainder to a stranger in this case the feoffee shall have all the time of his life to doe it if hee be not hastned by request But if the condition be to make a gift in taile to a stranger the remainder to the feoffor in this case it must be done in time convenient without request If the King licence his tenant to infeoffe A and B so as they give the land again to the feoffor and the heirs males of his body and he make a feoffment accordingly in this case it must bee reconveyed before the death of the feoffor or else the condition is broken If A infeoffe B of black acre on condition that if C infeoffe B Co. super Litt. 208. of white acre A shall reenter in this case C shall have time to do To infeoffe this during his life if B doe not hasten it by request If a lessee grant his estate to a stranger on condition that the To geâ the good will of I S. Perk. Sect. 795. grantee doe get the good will of the lessor and no time is set when he shall get his good will it seems in this case he shall have time to get his good will during the terme and that although he deny it at the first yet if he grant it afterwards that this is sufficient When a time is set in certain for the payment of mony or the doing of any other thing generally neither agent nor patient are Litt. Sect. 342. Co. super Litt. 213. bound to aââend any other time And if the thing be to be done on a day certaine but no houre of the day is set down wherein the same shall be done in this case they must attend such a distance of time before the Sun set as may be convenient to doe that worke in And if the condition be to pay money at a place certain at any To pay money time during life in this case the money may not be tendred at any time in the place in the absence of him that should receive it but he that is to pay it must give notice to the other party before hand what time he will tender it that the other may be ready to receive it Or if at any time the parties hap to meet at the place a payment or tender then at that place is sufficient And the same law is for Obligation the most part in conditions of obligations In cases where a place is set down for the doing of the thing contained 3. In respect of place Co. super Litt. 210 211. 213. Litt. Sect. 343. 345. Bio Condition â0 in the condition there it must always be done at that place unlesse by some agreement made between the parties afterwards another place be appointed otherwise the condition is not performed and the parties are not bound to attend in any other place But in cases where there is no place set down for the doing of the thing contained in the condition if the thing to
for life years in present or future or for one yeare or by taking a wife whereby shee may be intitled to dower or by suffering a recovery of the land or by granting of any rent Common or the like or by entring into any Statute c. or by suffering any Judgement to be had against him or by doing any other such like act whereby he cannot convey the land according to the condition in the same plight quality and freedome it was at the time of the conveyance made in either of these cases the condition is ipso facto broken And albeit the land be afterward discharged and the party againe enabled before the day to performe the condition yet this will not salve the breach And so also it is of a limitation But when the condition is to be performed of the part of the feoffor or grantor there disability before the time will not hurt so as he be againe enabled at the time And so also it is when the condition is to be performed of the part of the feoffee and there is no certaine day set for the performance of the thing for in this case albeit he be once disabled yet if he be afterwards againe enabled and doe it within the time that the law doth give him to do it in this case the condition is not broken And so also it is if the feoffee be disseised and during the disseisin he doe any such act as before in this case before his entry this is no breach of the condition for till then the charge doth not binde the land And so likewise it is when the disability doth proceed from another cause as where one doth make a feoffement on condition that the feoffee shall reinfeoffe before such a day and before the day the feoffor disseise the feoffee and keepe him out till the day be past or one doth make a feoffement on condition the feoffee shall marry B before such a day and before the day the feoffor himselfe doth marry her so that the feoffee cannot performe the condition in these cases the condition is not broken If one make an estate of lands held in Capite on condition Trin. 13 Jac. Slade versus Tompson B. R. To imploy the profits to charitable uses that he to whom it is made shall imploy the profits thereof to divers charitable uses and he die his heire within age by reason whereof the King hath the land during the minority of the heire so that the profits cannot be employed this is no breach of the condition If one make a feoffement of land on condition to reinfeoffe To reinfeoffe Co. 1. in Porters case in convenient time and the feoffee doth not so but doth make a lease to another this is a double breach of the condition And the same Law is of a Devise by will in this manner If a feoffement be made upon condition that the feoffee shall To make an estate Perk. Sect. 796. Co. 8. 90 See the parable Mat. 21. 28. make some estate to the feoffor or some other by a day and the feoffee before the day say to him to whom the estate is to be made that he will never make the estate notwithstanding he doth make the estate before the day according to the condition in this case it is said the condition is broken Sed quere of this for it seemes if he really deny it before and actually performe it at the day that this is a good performance of the condition As if a lease be made of a house on condition that the lessee shall not disturbe the lessor in the taking a way of his goods out of the house and To suffer one to take his goods when the party doth come or send to fetch them the lessee doth only forbid them this in this case is no breach of the condition and it was agreed in this case that words without some deeds as shutting the dore against them forcible resistance or laying of hands upon them or the like are no breach of such a condition And if a lease be made on condition that the lessor shall be 3 H. 4. 8. foure times a yeare in the house demised without being ousted by the lessee and the lessee seeing him comming doth shut the dores To suffer one to come into a house or windowes against him this hath been thought to be no breach of this condition If a lease be made on condition that the lessee shall pay yearly Dier 33. To pay a yearly rent or sum to the lessor during the terme tenne pound in this case if he faile of payment once the condition is broken and estate forfeit So if one make a feoffement in fee of land on condition to pay tenne pound yearly to I S if he faile once the condition is broken If a lease be made of a Manor in which are divers Copyholders Not to molest Copiholders Penner versus Glover 37 38 El. Mich. B. R. per curiam on condition that the lessee shall not molest vex or put out any Copiholder paying his duties and services in this case if the lessee enter upon and put out any one Copiholder this is a breach of the condition But if he enter vi armis upon a Copiholders tenements and there beate him only or the like this is no breach of the condition If there be a condition to pay rent and the lessee let part of To pay rent Crompt Jur. 64 65. the land to other undertenants or let all the land to another for part of the time and he undertake the rent still and faile of payment in this case the condition is broken and estate forfeit But if there be any covin and practise in the case between the first lessor and the lessee the undertenants may perhaps have relief in equity Equity If one make a lease for years of land and then also make a feoffement Co. 8. 90. in fee of the lands on condition that if the lessee be disturbed Not to disturb bed in his terme that he shall have the fee simple and he is disturbed by the feoffor or by his meanes in this case the condition is broken and the lessee shall have the fee simple But if the disturbance be by a stranger and not by the feoffor or by his meanes or consent this is no breach of the condition If a lease be made on condition that the lessee shall not be out-lawed Not to be outlawed Per 2. Justices H. 7 Jac. B. R. and he is outlawed without proclamation it seemes this is no breach of the condition because the outlawry is not good If a condition possible at the time of creation become after impossible Lit. Sect. 352. Co. 2. 59. in part by the act of God and the party doe not performe that which is possible the condition is broken If a man make a lease for years
cannot devise by his Will any part of the third Acre and after he purchase three Acres of equall value held in Socage that in this case because he hath the reversion in Fee upon the estate Taile made to the younger sonne he can devise no more but two parts of the said land so newly purchased But if the reversion be gone before the purchase he may devise the whole Coo. 6. 16. super Litt. 111. but if a man be seised of lands in Fee part of which are held of the King in Capte by Knights Service and he convey two parts of it unto any of his sonnes or to the use of his wiâe for life or in Taile in this case albeit he may not devise any part of the residue yet he may by his Will devise the reversion of the two parts And in case where he hath not conveyed the full two parts he may devise so much as to make up that hee hath conveyed full two parts And it was further resolved in the same Leonard Loveâs case That whereas the Statute saith All persons c. having c. of any Mannors c. in possession reversion or remainder c. and the Feoffor L L in the case before had a remainder in Taile expectant upon the estates in Taile limited to the sonnes that this remainder was not within the Statute nor would have restrained the Devise but for the reversion in Fee afterwards A B being seised in Fee of the Mannor of Gracediu held in Capite and of the value 30 l. per annum and of the Mannor of Normanton held in Capite of the Coo. 11. 23. Henry Harpurs case value of 18 l. per annum in consideration of a marriage with M did covenant to stand seised of the Mannor of G to the use of himselfe and the heirs males of his body on the body of the said M and after to the use of W B his brother and the heires males of his body and after to the use of another brother in Taile and after to the use of his own right heires and of the Mannor of N to the use of himselfe and M he is to marry and the heires of his body and after the remainders as before of the other Mannor and after the marriage is had and A B doth purchase other lands held in Socage of the value of 3 l. per annum and then devised the same new purchased lands in this case it was adjudged that the Devise was void for a third part of the Socage land in respect of the reversion dependant upon the estate taile and yet that it was a good Devise for two parts of the new purchased land albeit he had executed his power and given more then two parts to the use of his wiâe And in these cases where a man hath land held in Capite and other land Coo. 10. 83. and he convey the land held in Capite to any of the Uses within the Statute as to his yoââger children or the like or convey it with power of revocation only so that he hath power of the land still and after he purchase land held in Socage in this case it seemes hee may devise all the land newly purchased as if the land were conveyed without any such power of revocation A being seised of land in fee Coo. 6. 17. Sir Edwards case held of the King in Capite made a Feoffment of two parts of it to the use oâ his wiâe for her life for her Jointure and after made a Feoffment of the third part to the use of such person and persons and of such estate and estates as he shall limit and appoint by his last Will and Testament in writing and afterwards he did by his last Will in writing devise this third part to one in Fee in this case it was resolved that the Devise was good for the whole third part And yet if a man make a Feoffment in Fee of land held in Capite to the use of his last will albeit the devise of the land be with reference to the Feoffment yet it is void for a third part E B being seised of 6 Mannors the one in Fee and the rest in Taile with the Coo. 10. 81. Tr. 34. Eliz. Bedinâields case reversion expectant to him and his heires and hath issue T B divers of which Mannors are held of the King in Capite by Knights service and every of them of equall yearely value by his last Will in writing did devise all the said Mannors to divers persons and their heires for payment of his debts and advancement of his children and then died and the estate in taile that discended to his issue was more then a third part of all in this case it was resolved that the Devise was good for two parts of the reversions and for the entire Mannor in Possession and not void for a third part of the Mannor in Possession and for all the reversions in Fee A man being seised in Fee of Gavelkind land in Kent part whereof is held of Coo. Rep. Stamf. Per. 8. the King in Capite and part of Common persons in Socage hath issue A who hath issue B C and D and A deviseth some of these lands to B and some to C and some to D his Grand-children in taile in this case the Devise is void for a third part of the whole aswell for the land held in Socage as the land held in Capite And yet if in this case no Will be made the King shall have but a third part of that which doth discend to the eldest sonne the heire at the Common-law and not the third part of that which doth discend to the younger sonnes by custome And if lands devisable by custome come into the Kings hands and he grant them to hold of him in Capite and the Patentee devise them to the use of his wife children or for paiment of his debts c. in this case the Devise is void for a third part And here note that in all the cases before where a man is restrained to devise a third part of his land if he devise the whole the Devise is good notwithstanding for so much as he hath power to devise And as touching the thing devised is further to be known 13. That a man must have right to and possession of the land he deviseth or else the Devise is not good Plow 485. Devise of a right to Land or of Land that is another mans And therefore iâ a Disseisor devise the land he hath gotten by Disseisin this Devise as to the Disseisee is void And if a man be disseised of his land so that he hath nothing but a right thereof left and then he devise this right or devise the land this Devise is void And if one contract for land aâd pay his money for it but Nevils case hath no assurance of the land and he devise this land to
one doth devise his land to I S after the death of his wife that by this Devise the wife hath an estate for life by implication And therefore if a man devise thus I give my goods to my wife and that after her decease my sânne and heire shall have the house where the goods are it is held by this Devise that the wife hath an estate for life in the house by implication for a man is bound to provide for his own wife But if a man devise his land to I S after the death of I W a stranger to the Devisor it seemes that by this Devise I W hath no estate at all by implication and that this doth but set forth when the estate of I S shall begin and that the intent of the Testator is that his heire shall have it untill that time If one devise land thus I give my land in Dale to I S to the intent Coo. 6. 16. 3. 20. Bâoo Estates 78. that with the profits thereof he shall bring up a child or to the intent that with the profits thereof he shall pay to A 10l or to the intent that he shall out of the profits thereof pay yearly 10l by these Devises I S hath only an estate for life albeit the payments to be made be greater then the rent of the land And therefore it is not like to the case before where a summe of money is to be paid presently If one devise his land thus I give my land to Alice my Cosin in Dyer 357. Fee-simple after her decease to W her sonne who is her heir apparant by this Devise she hath an estate for life first the remainder to her sonne for his life the remainder to the heirs of A in Fee-simple And so also is the Law when the Devise is to any other after that manner If my father be tenant for life of land the remainder to me in Fee Dver 371. and I devise this land to my wife rendring for her naturall life 40â to the right heir of my father by this Devise my wife hath an estate for life after the death of my father If one devise his land unto his Executors untill his sonne shall Fâr ãâã come unto 21 yeares of age the profits to be imployed towards the âoo 3. 20. performance of his Will and when he shall come to that age then that his sonne and his heires shall have it by this Devise the Executors shall have it untill he be 21 yeares of age and if he die before that time untill the time he should have been 21 yeares of age if he had lived so long and shall in this case shall be taken for should If one devise his land to his Executors for the paiment of his debts and untill his debts be paid by this Devise the Executors have Coo. super ââtt 42. but a chattell and an incertaine interest and they and their Executors shall hold it untill the debts âe paid and no longer If one devise his land to I S and the heires males of his body Coo. 10. in Leonard âoveis case 87. 46. for the term of fifty yeares it seemes that by this Devise I S hath but a Lease for so many yeares if the heires males of his body shall so long continue and that for want of issue male the terme of yeares shall end And in this case the Executor or Administrator ãâã not the heirs males of I S shall have it after his death If one devise his land thus I give to I S and I D and their Adiudged Loweâ versus Câxe Mich. 37. 38. âliz Co. B. Dyer 25. Lit. Bâo Seââ 133. Lâtt 2â3 Perk. Sect. 170. Dyer 350. heirs my land in Dale equally or my land in Dale to be equally Fourthly in respect of other ãâã divided by these Devises I S and I D shall have and hold the land not as âointenants but as Tenants in common so that the heire and not the servivor shall have his part that first dyeth And yet in case of such a limitation by Deed it is otherwise And if one devise his land to I S and I D and their heires without more words it seemes that by this Devise they shall take and hold as Joint-tenants * Dyer 326. And yet if one devise land to I S and I D and the heires of either of their bodies lawfully engââdred it seemes that by this Devise I S and I D shall take and hold aâ Tenants in common and not as Ioint-tenants * Paâche 9. Ia. New mans case And if one devise his land to I S and I D thus I will that I S and I D shall have my lands in Dale and occupy them indifferently to them and their heires If one be possessed of a terme of yeares of land and devise the Hill â3 Ia. B. R. Adiudged Blandfords case Devise of gâods and chattels same to his wife during all the years and if she die within the years then to A and B his two sonnes if they have no issue male but if they or either of them have issue male then that it shall goe to First in respect of the person that shall take by the Dâvise the use of those issues male and she die and the two sonnes die without issue born one of their wives being privily with child of a sonne which after his death is borne in this case and by this devise this issue male shall have it assoone as he is borne If one be possessed of a terme of yeares and he dâvise it to another Coo. 10. 4â Lampets case Perk Sect. 558. 559. and his heires or his heirs males by this Devise the Executors Executors or Administrators not the heirs of the Legatee shall have it And Hâire therefore if Lessee for years of land devise all his interest therein to his wife if she live so long and after her death if any part of the term be to come devise the same to I S his sonne and the heirs of his body in this case and by this Devise the Executors and Administrators of I S not his heires shall have it at least so long as he hath any heires of his body And yet if one possessed of a term of years devise it to I S and after his death that the heir of I S shall have it in this case I S shall have so many years of the term as he shall live and the heir of I S and the Executor of that heir shall have the residue of the term If one give 10 l. to the children of I S and at the time of the Swinb 316. Devise I S hath foure children and after before the death of the Testator he happen to have two more in this case and by this Devise the two children he hath afterwards shall have no part of the 10 l. but those foure he had before shall have
of the Common Pleas may in open Court take knowledge of fines and record them by virtue of their office h Dyer 224. Cromp. Jur. Or the Chiefe Justice of that Court may by the Prerogative of his place take cognisance of fines in any place out of the Court and certify the same without any writ of Dedimus Potestatem i Stat. 15. E. B. Broo. Fines 20. and so also as it seemes may two of the Justices of that Court with the consent of the rest or one of them with a Knight but this is not usual at this day k Dyer 224. Broo. Fines 120. Also Justices of assise by the generall words of their Patents may take certify cognisances of fines without any special Dedimus Potestatem but at this day they doe not use to certify them without a speciall writ of Dedimus potestatem And fines have been levyed before Justices Errants Also cognisances of fines are taken by a speciall writ issuing out of Dedimus potestatem quid Cromp. Iur. 92. F. N B. 147. a. b. 146. F. G. the Chancery called a Dedimus Potestatem whereby commission is given in divers Cases to a private man for the speeding of some Act appertaining to a Judge upon a surmise that the parties that are to doe the same are not able to travaile and by this writ upon such a surmise power may be given to any Serjant at law alone or to any Knight and Gentleman together to take the conusance of such persons and they may by virtue thereof take the same l Curia 39. 40 E. l. 17. either of all or some of the parties m Dyer 220. and that as it seems in any place accordingly n 8 H. 6. 21. But a Justice or other person being cognisee in a fine may not take the cognisance thereof himself And all these that have power to take the conusances of fines are to take great heed of whom they doe take the same and whom they doe admit to make such conusances before them o 34 H. 6. 19 Broo. Fines 11. Cromp. Iur. 32. 92. And therefore they are to see that they know the parties that are to be Cognisors that they suffer not one man to make a conusance in another mans name and that they doe not take any conusance from any person prohibited by law for misdemeanors by such persons herein are punishable in the Star-Chamber p 42 E. 3. 7. 3 H. 6. 42 Perk. Sect. 613. Doct. et St. 155. Cromp. Iur. 55. And if there be any woman that hath a husband that doth joyn with her husband in the conusance the Iudges or Commissioners must take care they doe examine her whether she be willing and doe part with her right in the land willingly or by compulsion of her husband for albeit she be made to doe it by compulsion of her husband yet hath she no way to relieve her selfe when it is done q Stat. 23 El. chap. 3. Dyer 320. And after the Commissioners have taken the same cognisances by Dedimus Potestatem they are to certify the same truly and the day and yeare when it was taken r Dyer 220. Cromp. Iur. 92. and not another time for this may be a misdemeanor punishable in Starre-Chamber and to return the commission into the Court of Common Pleas under their hands and seales within a yeere after the taking of the same conusance at the farthest f Regist or 68. F. N. B. 147. b. And if they refuse to return or certify it the party grieved may by a writ called Cognitionibus admittendis or a Certiorare compell that Commissioner that hath it in his custody or his executor or administrator if he be dead to certify it t Dyer 246. But if any of the cognisors happen to die before it be certifyed then it cannot be certifyed at all for it cannot now be made a good fine u ãâã 1 H. 7. 9. Broo. Fines 124. And so also as some hold if the King die * Dyer 220. Stat. 15. F. 2. 44. 44 E. 3. 38. But if the Kings silver be entred Cognitionibus admittendis quid in paper or upon the back of the writ of covenant as the use is and the party die after this in this case the fine may goe on and will be a good fine notwithstanding the death of the party And Judges for the recording of fines be the Justices of the comÌon Pleas onely and therefore all cognisances of fines must be certifyed thither for in that Court onely and not in any other of the Courts of Record at Westminster or in other inferiour Court or ancient demesne are fines to be levyed * 50 Ass pl. 9. But by speciall grant a fine may be levied in a base Court y Stat. 2. H. 6. chap. 28. 37 H. 8. c. 19 5 Eliz. c. 27. And by certaine Acts of Parliament fines may be and are levyed in the county Palatine of Chester county Palatine of Lancaster and county Palatine of Duresme of lands lying within those places And if any persons doe take conusance of fines other then such as before that have power or any other persons or Judges shall record fines or they shall be levyed in any other Court or place then as before such fines are void A Fine may be levyed of all things whereof a Precipe quod reddat Stat. 32. H. 8. c. 7. West Symb. in his Tract of Fines Sect. 25. 50. see in exposition of deeds inâra Numb 3. In respect of the thing whereof the Fine is levied of what things a Fine may be levyed or not and by what names lyeth and of all things which are inheritable and in esse at the time of the fine levyed whether the thing be Ecclesiasticall and made temporall or temporall As of an Honor Manor Island Barony Castle Messuage Cottage Mill Toft Curtilage Dove-house Garden Orchard Land Meadow Pasture Wood Underwood Chappell River Chauntry Corrody Office Fishing Warren Fair Rectory Mines a view of Franke pledge Waife Estray Felons goods Deodands Hospitall Furzes Heath Moore Rent Common Advowson Hundred Way Ferry Franchise Seigniorie Reversion Toll Tallage Pickage Pontage Aquitaile Services Portion of tithes Oblations or the like And therefore fines De honore de S. or De Manerio de S. or De Castro or De Castello de S. cum pertinen ' are good So fines De uno mesuagio uno cottagio uno molendino without Aquatico or Granatico annexed are good So fines De uno T of to uno Curtilag uno Columbario uno gardino uno pomario decem acris terrae decem acris prati decem acris pasturae decem acris bosci decem acris subbosci de Balliva sive officio Ballivat ' de D. de Custod sive officio custod de B. de custod parci forrestae de D. de officio senescalciae de S. cum pertinen ' decem acris bruerae
Estoppell Estoppell And therefore if a lessee for yeers or a disseisee or one that hath right onely to a remainder or reversion levie a fine to a stranger that hath nothing in the land this fine is void or at least voidable as to and by any stranger thereunto and he that hath cause may shew that the freehold estate and seisin of the land was in another before and at the time of the fine levyed and that Partes finis nihil habuerunt tempore levationis finis And by this avoid it And yet a vouchee after he hath entred into the warranty may levy a fine unto the demandant but not to a stranger And a disseifor may levy a fine to a stranger that hath nothing in the land and this is a good fine for he hath the fee simple by wrong in him Also the issue in taile may be barred by way of Estoppell by a fine levyed by Ancester being tenant in taile albeit neither conusor nor conusee have any estate of freehold in the land a a 26 H. 8. 9. Dyer 334. 69. Plow 375. 338. E. 4. 13. 11 E. 4. 68. A Joint-tenant tenant in Common or Coparcenour may levy a fine of his part to a stranger and this will be a good fine And so also as it seemes may one Goparcenour or tenant in common to another One single member of a corporation aggregate of many cannot levy a fine of the lands of the corporation as the Maior or Master of a College cannot levy a fine without the communalty or his fellows c. But such persons may levy fines of the lands they are solely seised in their own right as other men may die Such as have estates of freehold in in Ecclesiasticall lands in the right Co. 11. 78. of their Churches houses c. as Bishops Deanes and Chapters Prebends Parsons and the like may not levy a fine of such lands for if they doe it will not bind the successor He that hath an estate of fee simple in lands in the right of his wife ought not to levy a fine thereof without her and if he doe shee Stat. 32 H. 8. chap. 28. 12 E. 4. 12. Co. 6. 55. Broo. Fines 121. Stat. 32 H. 8. ch 36. Co. 5. 3. 4. Stat. 1 H 7. chap. 20. and her heires may avoid it after his death Also he that hath an estate of lands given in taile by the King or by the provision of the King ought not to levy a fine of this land for it is void as against the issue in taile and the King Also he that hath an estate of lands that are prohibited to be sold by Act of Parliament ought not to levy a fine of such land Also she that hath an estate of lands of her husband or of any of his ancestors assured to her for her Jointure Dower or in taile by the meanes of her husband or any of his ancestors may not levy a fine of this land for if she grant a greater estate then for her own life this worketh a present forfeiture In the concords of Fines some things are to be regarded in the 5. In respect of the Concord and matters touching it And what concord or agreement may bee made by Fine or not West Symb. ubi supra Sect. 30. Co. 5 38. manner and forme and some things in the matter and substance First when a fine is levyed to divers Cognisees the right shall be limited to one of them As if a fine be levyed by A. to B. and C. it shall say Quod praedict ' A. recognoverit tenementa praedict ' esse jus ipsius B. ut ill'quae iidem B. et C. habent c. But the Kings tenant may acknowledge the right to be in divers Secondly the state shall be limited to his heires onely to whom the right is limited and not to the heires of all the cognisees as thus Quod praedict ' A. cognoverit tent ' praed c. esse jus ipsius B. ut ill quaeiidem B. C. habent de dono praedict ' A. ill'remisit quiete clam ' de se haered suis praefat ' B. et C. et haered ipsius B. c. The release and warrantie must be from the heirs of one of the Cognisors where there be more then one for in a fine from divers the fee is supposed to be in one onely And therefore it must be thus Quod praedict ' A. B. cogn ' ill'remisit c. de se et haered ipsius A. Et eidem A. et B. concesserunt pro sâ et haered ipsius A. quod ipsi war ' tenementa c. si contra se et haereredes ipsius A. imperpetuum But if the fine be of lands in Gavel kind contra Fourthly the Concord need not to rehearse all the speciall names of the things contained in the writ but it is sufficient to say Tenementa praedicta as quod praedict ' recognoverit tenementa praedicta c. Fifthly as a Concord cannot be without an originall writ so it must pursue the originall writ and cannot be of any forain thing 1. such a thing as is not contained in the writ except it be consequent thereunto as when the writ is of land there may be in the concord of a rent out of this land but there may be more things in the Precipe then are named in the Concord And a Concord may be with an exception of some part but this exception must alwaies be of such things whereof the writ will lie and are mentioned therein must be certainly named must succeed the things out of which they be excepted as Precipe A. B. quod teneat C. D. convenâ c. de manerio de D. cum pertineâ in C. except uno messuagio duabus acris terrae et advocatione Ecclesiae de C. c. Et est concordia c. quod praed A. cogn ' tenementa praedict ' cum pertinen ' except praeexcept And in all these and such like cases as before where the concord is not formall the Judges ought not to receive the fine nor suffer it to passe but if they doe and the fine be finished it cannot afterwards be avoided by writ or error or otherwise for these faults The Concord and agreement may be made of an estate in fee simple See in West Symb. divers examples Perk. Sect. 629. Broo. Fines 108. fee taile for life or for yeeres it may be also of divers remainders and that to them that are no parties but strangers to the fine It may be also single or double with a render back again of some estate in the same land or some rent out of it so as a Concord may have in it a reservation of rent a clause of distresse or Nomine penae and a warrantie b Broo. Fines 106 118. Co. 6. 33. Plow 435. Dyer 279. Co. 1 76. And therefore if A. levy a fine to B. Sur cognisance de droit come ceo
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 ââ 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
So if one give all his goods and chattels to his executor in his life time by deed of gift this shall be said to be fraudulent and shall be void as to Creditors And albeit those to whom the deed of fraud is made know nothing of the fraudy yet is the deed fraudulent in that case also as well as where they are privie to it If after a Commission of Bankrupts be sued out the debtor Co. 2. 25. make a deed of gift of all his goods to one of his Creditors in satisfaction of his debt in this case this deed shall be void as against the rest of the Creditors and as to the Commissioners and they may order it with the rest of the estate notwithstanding But if A bonâ fide and for valuable consideration mortgage his land By the two Judges of Assise Aug. 5. Car. in Com. South Lady Lamberts case whereof he hath a term of years to B upon condition that if he repay the mony to B a yeare after that he shall reenter and B doth covenant with A that he shall take the profits of it untill that time c. A doth not pay the money and B hoping that he will pay it in time doth suffer him to continue in possession and take the profits of it two or three years after and in the interim judgment is had against A upon a bond and execution awarded in this case execution shall not be made of this lease for this deed of mortgage shal not be said to be fraudulent as to the Creditor for when a conveyance is not fraudulent at the time of the making of it it shall never be said to be fraudulent for any matter ex post facto If A be seised of the fifth part of the Manor of B and B of the Mich. 19 Jac. Co. B. Miller Potscase 6th part and M cometh to A to buy his part and after M saith to A my Counsell tells me I cannot safely buy of you unlesse B joyn and after B doth grant a rent charge of 15l per annum out of this Manor to C her sonne and the heires of his body in consideration of naturall affection and this was about 1o. Jac. C being then but about three years old with proviso that if D whom B did then intend to mary grant to the said C the like rent of 15l and for the like estate out of 20l. land by the yeare of the land of B then the said grant to be void and after the said A bought the 6th part of the said Manor of B and D her husband being intermaried and after A B and D her husband joyne in the grant to M and in this case it was ruled that this grant to C was not fraudulent and void If one doth hold his land to pay a hariot Co. 10. 56 57. at the death of every one that dyeth tenant in fee simple and he infeoffe his sonne and heire in consideration of naturall affection and mariage to be had between the sonne and I and the son to prevent the Dower of his intended wife during his fathers life makes a lease for forty yeares unto his father if his father live so long and afterwards the mariage is had the father payeth the rent the sonne doth suit of Court for the land and after the father dieth in this case this lease shall not be said to be fraudulent as to the Lord to deceive him of his hariot because it was made to another Stat. 52 H. 3. c. 9. 34 H. 8. ch 5. Co. 6. 76. Lit. Bro. Sect. 59. Plow 49. Co. 8. 164. 9. 129. end A deed also made to defeate the King or other Lord of his 3. To deceive Lords of their wardships c wardship shall be void as to a third part of the thing conveyed And therefore if any tenant that holdeth of the King or any other Lord make a feoffment or other conveyance of his land to defeate and defraud the King or Lord of his wardship primer seisin or any other benefit appointed and preserved for the Lord by the Statutes of 32 and 34 H. 8. shall be void as to a third part thereof against the King or other Lord who shall notwithstanding have their wardship and other benefits as if none such were made As if such a tenant by deed enfeoffe his lineall or collaterall heire within age or make a lease for life the remainder to his heire or make a gift in taile the remainder in fee to his heire or make a feoffment on condition that he shall reinfeoffe his heire at his full age or make a feoffment for the paiment of his debts preferment of his wife and children or infeoffe another to the intent that he shall take the profits till he have an heire male and then to reinfeoffe him all these are fraudulent and void as to a third part of the land and as against the King or other Lord in respect of the benefit they are to have of and by the land But no conveyance in these cases shall be said to be fraudulent and so void for two parts of the land And if one make a feoffment of land to two whereof his heire is one and their heires for mony or other valuable consideration this shall not be said to be a fraudulent conveyance of any part So if such a joyntenant make a feoffment of his moity to a stranger * Dyer 9. Co. 2. 94. And in cases where the feoffment is fraudulent for a third part as before if the feoffee dye or make a feoffment over bonâ fide before the death of the Ancestor in these cases the deed is become good again and the collusion gone If a Dyer 268. Co. 10. 57. man for feare of debts convey his lands to friends with condition that upon payment of 10l they shall convey it to those whom he shall appoint in this case the conveyance shall not be said to be fraudulent as to the King or other Lord for it was done to another end and therefore it is a good conveyance against all men but the Creditors Where deeds shall be void in part or in all for want of inrollment atturnement livery of seisin or the like see afterwards If a deed that is well and sufficiently made in his Creation shall Co. 11. 27. 5. 119. Dyer 59. 261. Perk. Sect. 123. 135. Kelw. 162. Fitz. Release 27. 14 H. 8. 25. Bro. Fait 9. 6 Where a deed good in his creation may become void by matter ex post facto And what will make such a deed void or not 1. By Rasure be afterwards altered by rasure interlining addition drawing a line through the words though they be still legible or by writing new letters upon the old in any materiall place or part of it as if it be in a deed of grant in the name of the grantor grantee or in the thing granted or in the limitation of
have it or if this be neglected then he must take care to grant over his estate by act executed for by his last will he may not devise it to some friend and his heires in trust for him or he may grant it over to another and take a regrant of it to himselfe and his heires or he may make a lease for years of the lands to some friends in trust and by this meanes he may have the fruit of it during the terme When no time is set downe for the beginning of an estate then Co. super Lit. 46. Co. 5. 1. 2. 5. Dieâ 286. 307. it shall begin presently otherwise it shall begin at the time expressed For years When such a lease shall begin and how long it shall continue if it may stand with law If a lease for years be made bearing date the 26th day of May To have and to hold for 21. years from the date or from the day of the date in these cases the lease shall begin on the 27th day of May. But if the words be To have and to hold from henceforth or from the making hereof in these cases the lease shall begin on the day in which it is delivered And if it be to begin à die confectionis then it shall begin the next day after the delivery And if it be To have and to hold for 21. years without mentioning when it shall begin it shall begin from the delivery if there be no former lease in being and if there be then it shall begin from the time of the ending of that lease If the deed have a date which is void or impossible as the 30 of February or 40. of March and the terme be limited to begin from the date then it shall begin from the delivery So if a man by his deed recite a lease which is not or which is void or misrecite a lease that is in esse in point materiall and then say To have and to hold from the end of the former lease this lease shall begin in course of time at the time of the delivery of the deed If one make a lease of land to A for 20. years and then grant Co. 1. 154. Plow 198. it to B To have and to hold to him from the end of the first terme c. in this case this second lease shall begin assoone as the first lease by what meanes soever shall end But if the words of the second lease be To have and to hold to him from the end of the 20. years in this case the second lease shall not begin untill the 20. years be expired And if one make a lease of white acre to A for 10. years and of blacke acre to B for 20. years and then reciting both the leases doth make a lease to C to begin after the former leases this shall be taken respective and shall begin for white acre after the end of the 10. years and for black acre after the end of 20. years And if one make a lease to two for 60. years provided that Co. 6. 36. if the lessees shall die within the term that then presently after the decease of the last of them longest living the lessor shall reenter and one of them die and after the lessor doth make a lease to another Habendum c. cum post sive per mortem sursum redd vel forisfacturam of the first surviving lessees acciderit vacare for 40. years in this case this second lease shall begin after the death of the lessee surviving reentry of the lessor or the effluxion of time of the first lease which of them shall first happen and the lessee cannot at his election make it to begin at any other time If a man make a lease for 30. years and 4. years after make another lease to another man in these words Noveritis c. me A de Dier 261. B predictis 30. Annis finitis dedisse concessisse B de C c. Habendum à die confectionis presentium termino predicto finito usque finem 31. Annorum by this the second terme shall begin at the end of the 30. years And if one make a lease to A for 20. years and after make a lease to B to have and to hold to him from the Craddocks case pasc 7. Jac. Co. B. end of the first terme for 20. years to be accompted from the date of the last deed in this case the second lease shall begin at the end of the first lease these words to be accompted c. shal be rejected If one make a lease of land to A for 10. years and after by Dier 112. indenture grant it to B to have and to hold to him from Michaelmas next for 10. years and after the first lessee doth purchase the reversion by which his terme is drowned in this case the second lease shall begin presently when Michaelmas is come If two Jointenants be and one of them grant the land to I S to Mich. 13 Jac. B. R. have and to hold to him for 20. years if the lessor and his companion so long live by this the lease shall continue no longer then they both live together and when either of them is dead the lease is determined * Co. 5. 9. And if one grant his land to I S to have and to hold to him his executors c. for the terme of 100. years if A B and C live so long and leave out these words or either of them in this case if either of them die the lease is determined But if the words be To have and to hold for 100. years if A B or C omitting or either of them shall live so long contra â Pasch 30. Eliz. Co. B. If a lease be made of land to the husband and wife to have and to hold to them for 21. years if the husband and wife or any child between them shall so long live this is a good lease and shall continue for all their lives and for the life of the longest liver of them albeit the first words be in the copulative If one possessed of land for a terme of years grant the same to another Dier 307. 69. Plow 520. 524 525. 423 424. Co. 7. 23. To have and to hold to him his executors and administrators or to him and his assignes or to him without any more words or if a man that is possessed of a terme grant his lease to another and doth not say for what time it seemes in these cases the whole terme is granted albeit no livery of seisin be made And in the first case if livery of seisin be made then it seemes there doth passe an estate for the life of the grantee and therefore that this is a forfeiture of the estate of the lessee for years whereof he in the reversion may take advantage presently And if a lessee for years of land grant a
happen in possession If rent be reserved to be paid at two termes and it is not said by 13 H. 4. Avowry 240. Co. 8. 95. 10. 47. Bro. Done 57. Fitz. Done 2. equall portions yet it shall be so taken and it must be so paid If one be possessed of a terme of years of land and grant it by In other respects deed to I S for his life and after his death to I D in this case the whole terme is granted to I S and his executors administrators and assignes shall have it and not I D. But if a terme were so devised Dâvise by Will contra And if one give or grant to another his horse or his bookes for his life and that after his death they shall remaine Remainder to another the remainder is void and the first shall have it for ever for the gift or grant of such a thing for an houre is a gift of it for ever See more in Vse Numb 7. And it is now time that we come to the other parts of a Deed and first to a Condition CHAP. VI. Of a Condition A Condition is a kind of Law or bridle annexed to ones act 1. Condition Quid. Termes of the Law Co. super Lit. 201. staying or suspending the same and making it uncertaine whether it shall take effect or no. Or as others define it It is modus an Equality annexed by him that estate interest or right to the land c. whereby an estate c. may either be created defeated or enlarged upon an incertaine event And this doth differ from a Limitation which is the bounds or compasse of an estate or the time Limitation Quid. how long an estate shall continue And this sometimes is contained 27 H. 8. 16. Co. 2. 70. in a Testament or Will and sometimes in a deed And when it is in a deed it hath no proper place assigned it but it may be in any part of the deed howbeit for the most part it is placed next after the Habendum or next after the Reservation of the rent It is also sometimes annexed to and depending upon estates and sometimes annexed to and depending upon Recognizances Statutes Obligations contracts and other things Conditions are also contained in Acts of Parliament and Records But of these we speake not here in the ensuing matters which are especially to be applied to such Conditions as are usually contained in deeds and annexed to the realty i. to estates in feesimple feetaile for life or years And of these Conditions there are divers kinds For some 2. Quotuplex Co. super Lit. 201. Plow Colthirsts case Co. 8. 43. are in deed or Expresse i. when the condition is expressed by the party in legall terms and by expresse words in writing or without writing knit to the estate as if I enfeoffe a man of land rendring rent at a day on condition that if it be not paid it shall be lawfull for me to reenter And some are in law or Implied i. when the condition is tacitè created by the law without any words used by the party The first sort of conditions also are some of them precedent or executed i. when the condition must be fulfilled âre the estate can take effect as where an agreement is between me and I S that if he pay me 10 l. at Michaelmas he shall have such a ground of mine for 10. years or I make a lease of land to I S for 10. years provided that if he pay me 10 l. at Michaelmas he shall have the land to him and his heires and in these cases by the performance of the condition the estate is acquired And some of them are Subsequent and Executory i. when the estate is executed but the continuance thereof dependeth upon the breach or performance of the condition as where a lease is made for years on condition that the lessee shall pay 10 l. to the lessor at Michaelmas or else his lease shall be void and in this case by the performance of the condition the estate is held and kept These conditions also are some of them in the affirmative i. that doe consist of doing as providing that the lessee shall pay the rent or pay 10 l. to the lessor c. And some in the Negative i. that consist of not doing as provided that the lessee shall not alien c. And some of them are in the Affirmative which imply a Negative as provided that if the rent be unpaid that the lessor shall reenter which implieth a Negative viz. not paid Conditions also are some of them collaterall i. when the act to be done is a collaterall act as that the party shall pay 10 l. goe to Rome or the like And some are inherent i. such as are annexed to the rent reserved out of the land whereof the estate is made And some of them also are Restrictive contain a restraint as that the lessee shall not alien or do wast or the like And some are compulsory as that the lessee shall pay âo the lessor 10 l. such a day or his lease shall be void And some of them be single i. to doe one thing only And some copulative i. to doe divers things And some disjunctive i. when one thing of divers is required to be done And some conditions Co. super Lit. 201. make the estate whereunto they are annexed voidable only by entry or claime And some of them make the estate void ipso facto without entry or claime And sometimes they tend to destroy estates sometimes to make or to enlarge estates and sometimes neither to make nor destroy but only to clogge estates as where a lease is made rendring rent on a day on condition if it be not Lit. Sect. 327. paid that the lessor shall enter on the land and keep it till the rent be paid And all these waies conditions may be lawfully made Ineââe potest donationi modus conditio sive Causa The conditions in law or implied are either by Common law Co. 8. 44. 3. 65. Lit. 325. 378. F. N. B. 205. or by Statute law The first sort are some of them founded on skill as where an office is granted there is a condition tacite implied that if the grantee doth not execute it faithfully according to the trust the grantor may put him out And some are without skill as where an estate is made for life or years of land there is this condition implied that if the lessee doe wast he shall forfeit the place wasted or if the lessee make a feoffement of the land he shall forfeit his estate and the lessor shall enter And where an estate âs made in fee of land this condition is implied that the feoffee shall not alien it in Mortmaine And these conditions doe somtimes give a recovery and no entry as in the case of wast And sometimes Co. 4. 121. they give an entry and no
if the rent be behind to reânter and retain the land during the life of B and no more and A doth enter in the life time of B for non payment this doth not destroy the remainder And if tenant for life and he in remainder join in a feoffment on condition that if c that then the tenant for life shall reenter this is good without defeating the entire estate for regularly a condition cannot avoid a part of an estate onely and leave another part entire neither can the estate be void as to one person and good as to another except it be in case of a condition annexed to an estate limited by way of use as in Frances case Co. 8. 90. And yet if A make a gift in tail to B the remainder to B in fee upon condition not to alien and B doth alien this doth defeat the estate taile onely and not the remainder Also the whole estate of the whole Co. 4. 121. Dier 127. and not of some part only shall be avoided except by agreement the condition be specially restrained to some part and the reentry given in that part only as where a feoffment is made of two acres on condition that if such a thing happen the feoffor shall enter into one of them And further when he that hath right doth âeenter Perk. Sect. 840. by force of such condition hee shall avoid all charges and incumbrances put upon the land after the condition made for hee that doth enter into land by force of such a condition must have it again in the same plight as it was when he parted with it And See infra finally a condition for the most part will not determine the estate without entrie or claim So that howsoever a limitation hath much affinity and agreement with a condition a Litt. Sect. 3â0 and therefore it is sometimes called a condition in law b Co. 9. 128. 8. 17. 6. 41. Plow 413. both of them doe determine an estate in being before and a limitation cannot make an estate to be void as to one person and good as to another as if a gift bee made in taile to one and his heires males untill he doe such a thing Co. 10. 40. Dier 300. Litt. Sect. 90 and then his estate to cease and goe to another yet herein they differ 1. A stranger may take advantage of an estate determined by limitation and so he cannot upon a condition 2. A limitation doth always determine the estate without entrie or claime and so doth not a condition Conditions anneâed to estates are sometimes so placed and confounded Co. 2. Lord Cromwels case 10 Mary Portingtons case Co. super Litt. 204. â7 H. 8. 16. Litt. Sect. 328 329 â30 331. amongst covenants sometimes so ambiguously drawn and 5. When an estate shall be conditionall And what words will make a condition And what not And how a condition may bee knowne from a covenant or limitation at all times have in their drawing so much affinity with limitations that it is hard to discern and distinguish them Know therefore that for the most part conditions have conditionall words in their frontispice and doe begin therewith and that amongst these words there are three words that are most proper which in and of their own nature and eââicacy without any addition of other words of reentry in the conclusion of the condition that doe make the estate conditionall as Proviso Ita quod and Sub conditione And therefore if A grant lands to B To have and to hold to him and his Proviso Ita quoâ Sub conditione heires Provided that or so as or under this condition that B doe pay to A ten pound at Easter next this is a good condition and the estate is conditionall without any more words But there are Si. Si contingat other words as Si si contingat and the like that will make an estate conditionall alâo but then they must have other words joined with them and added to them in the close of the condition as that then the grantor shall reenter or that then the estate shall be void or the like And therefore if A grant lands to B To have and to hold to him and his heirs and if or but if it happen the said B doe not pay to A ten pound at Easter without more words this is no good condition but if these or such like words be added that then it shall be lawfull for A to reenter then it will be a good condition But here note that these words Proviso Ita quod and sub conditione Co. super Litt. 146. Co. 2. 70. Dier 152. 311. Litt. Bro. 256. Dier 6. 222. Plow 136. 5 H. 7. 7. Perk. Sect. 732. albeit they bee the most proper words to make conditions yet doe they not always make the estate by the deed to bee conditionall but sometimes doe serve for other purposes for the word Proviso hath divers operations besides for sometimes it doth serve for and work a qualification or limitation and sometimes it doth serve to make and work a covenant onely And then only being inserted amongst the covenants of the deed it doth make the estate conditionall when there are these things in the case 1. When the clause wherein it is hath no dependence upon any other sentence in the deed nor doth participate with it but stands originally by and of it selfe 2. When it is compulsory to the feoffee donee c. 3. When it comes on the part and by the words of the feoffor donor lessor c. 4. When it is applied to the estate and not to some other matter as if one grant a Manor with an Advowson appendant and after the Habendum and reservation of rent amongst the covenants there is this clause inserted Provided that the grantee shall regrant the Advowson for the life of the grantor this is a good condition And thus it may be also a condition and a covenant as if the words run thus Provided always and the feoffee c. doth covenant c. that neither he nor his heires shall doe such an act this is both a condition and a covenant But if the clause have dependence on another clause of the deed or bee the words of the feoffee c. to compell the feoffor to doe something then is it not a condition but a covenant onely as if there be in the deed a covenant that the lessee shall skowre the ditches and Covenant then these words follow Provided that the lessor shall cary away the earth Or there is a covenant that the lessee shall repaire the houses and then these words follow Provided that the lessor doe provide timber So if this clause bee applied to some other thing and not to the thing granted then is it no condition as if a lease of land be made rendring rent at B provided that if such a thing happen it shall be paid at
C this doth not make the estate conditionall Or a lease is made for yeares without impeachment of waste proviso quod non prosternet domus voluntarie in this case howsoever this doth make the priviledge yet doth it not make the estate conditionall Or a lease is made for years rendring rent provided that the lessor shall not distrain for the rent in this case this is a good condition but not annexed to the estate So if in a deed of bargaine and sale of land after the Habendum there are these Dier 318. words viz upon these conditions following viz. that if the vendor pay the vendee twenty pound at Easter and enfeoffe him of a meadow called S before Whitsontide that the bargain shall bee void Provided neverthelesse that the bargainer shall hold the land fortwenty years without the let of the bargainee it seemes this Provided in this case doth not make a condition So if a lease be 27 H. 8. 15. Bâo Condition 7. made of a house amongst the covenants these words are inserted Provided also that if the lessor will dwell upon it or keep it in his hands then the lessee his executors and assigns doth covenant upon one yeares warning to remove and give place to the lessor this lease notwithstanding it seemes this is no condition but a covenant onely a Cââia pasche 14 Jac. Br. in the case of Muddy Co. super Litt. If a lease be made provided that if the rent bee behinde without any more words this is no good condition The word si also doth not always make a condition for sometimes it makes a limitation as when a lease is made for years if I S shall live so long There are other words also that in the Kings grant in last Wils Co. super Litt. 236 237. Doct. Stud. 122. Dier 138. Plow 142. 7 H. 4. 22. Co. super Litt. 204. Co. 10. 42. Dier 318. Doct. Stu. 34. and Testaments and other speciall cases doe make conditions as ea intentione ad effectum propositum intentionem paying and the like So that if one devise his land to I S ea intentione c. that he shall pay to W S tenne pound or paying or so as he pay to W S tenne pound or to sell c. these are good conditions But these words regularly doe not make a condition when they are used in deeds And therefore if one make a feoffment in fee ea intentione ad effectum c. that the feoffee shall doe or not doe such an act these words doe not make the estate conditionall but it is absolute notwithstanding And yet perhaps these words being conjoined with some others may make a condition as if lands be granted ea intentione quod si defecerit c. tunc quod reintrabit or the like Also conditions are sometimes made especially in estates and leases Doct. Stu. â4 Dier 6. 91. 63. 92. for years without any of these formall words when the apparent intent of the lessor is to make the estate conditionall albeit the words be not used as the words of the lessor but as the words of the lessee or indefinitely of neither And therefore it hath been said That if an Indenture bee made between A and B thus It is agreed and covenanted between the parties aforesaid that B shall have the land for yeares and that hee shall not alien it that this estate is conditionall But it seems this is not law But if this clause be inserted amongst other covenants viz. If the lessee hinder the lessor to fell cut and cary away the trees upon the lands devised that the lessor may reenter and the lease shall be void this is a good condition and so it hath been adjudged in the case of Haward and Fulcher Hil. 3. Car ' B. R. And if a lessee for yeares doe covenant in his lease that if hee his executors or assignes shall alien that it shall be lawfull for the lessor to reenter it seems this is a good condition and not a covenant onely And if a lease for years be made and this clause is inserted in the deed It is agreed between the parties that if the lessee do not pay 10 pound to the lessor at Easter that from thenceforth the lease shall bee void this is a good condition And if a lease bee made with this clause inserted in the deed it is agreed that whosoever shall have the estate or interest that he or they shall find sureties within the year for the rent otherwise the estate shall cease it seems this is a good condition And if a lease for years be made with this clause inserted Dier 66. 65. Curia Mich. 37 38. Eliz. B. R. And that it shall not be lawfull for the lessee to alien without licence of the lessor under pain of forfeiture this is a good condition And if a lease for years be made of a house with this clause inserted in the deed And the lessee shall continually dwell upon Dier 79. 27. Co. super Litt. 204. the same house upon pain of forfeiture of the said terme this is a good condition And if in a lease for years the lessee covenant to Plow 132. pay so much rent and then these words are inserted And if it shall happen the said yearly rent c. then the lessee doth covenant and grant c. that the lease shall be void it seems this is a good condition and so hath it been ever taken as was said by Just Dodridge Hil. 3. Car ' And in all these cases the estate is conditionall But in cases of feoffments in fee gifts in taile and leases for Co. super Litt. 204. Doct. St. 94. Dier 65. 138. life it seemes words penned in this manner will not make conditions but that in these cases the precise and formall words of a condition are requisite And therefore that if a feoffment be made by deed and therein is inserted this clause That it is agreed or that the feoffee doth covenant that if the feoffor doe such an act that the feoffor shall reenter this is no condition nor the estate hereby made conditionall And yet see Perk. Sect. 744. If one make a lease for yeares on condition to pay rent at foure feasts and after there is a clause in the deed And if the rent shall Dier 348. be behinde c. that he shall distrain this clause doth not take away the condition but the same doth continue and the estate is conditionall still See more in the next question In the making of eâates the cause is regarded And in case of Co. super Litt. 204. the grant of lands or tenements causa doth sometimes make a condition as if a woman give lands to a man and his heirs causa man imonii praelocuti in this case if she either mary the man or the man refuse to mary her shee shall have the land again to her and her heirs
use of B and his heires on condition that B shall pay to the feoffor twenty pound such a day this is a good condition So if one covenant to stand seised of lands to the use of B and his heirs on condition that if he pay him tenne pound the use shall be void or the like Also a condition may be Dier 1â6 348. annexed to an estate created by Will as if one devise land to I S for his life Provided that he pay ten pound yearly to I D this is a good condition Whereof see in Testament A rent or any such like thing may be granted on condition that Co. 8. 17. 24 âd 3. 29. if such a thing bee or bee not done the rent shall cease for a time and then revive again and this condition is good But in case of land it is otherwise for that cannot bee granted after this manner Also a condition to make an estate void for a part of the time is not good And therefore if a feoffment bee on condition that upon Co. 1. 86. Perk. Sect. 718. Co. 4. 121. Dier 6 such a contingent the feoffor shall enter and have the land for a time or the estate shall be void for a part of the time or make a lease for ten years provided that upon such a contingent it shall be void for five years these conditions are not good And yet if a feoffment bee made of two acres provided that upon such a contingent the estate shall bee void as to one acre onely this is a good condition A condition that a stranger or the heir of the feoffor shall doe Co. super Litt. 214. Doct. Stud. 94. 159. 100. Co. super Litt. 379. Co. 1. 84. Dier 33. 21 H. 7. 11. Dier 4. Co. 8. 95. an act is good as if a feoffment be made to I S on condition that I D shall pay to the feoffor ten pound at Easter next or if a feoffment be made on condition that if the heir of the feoffor pay twenty shillings to the feoffee that the feoffor and his heirs shall reenter But a condition to give a stranger a reentry is void so farre forth And therefore if an estate bee made upon condition that upon such a contingent a stranger shall enter or the estate shall cease and another shall have it howsoever this may be so drawne as it may be a good condition to give him his heirs c. that doth make the estate an entry yet it cannot be good to give the estate or the entry to the stranger So if a feoffment be made on condition that upon such a contingent the feoffor and a stranger shall enter this is not good to give an entry to the stranger but it is good to give the feoffor a reentry And yet by will a man may devise a terme after this manner If a man enfeoffe another upon condition that he and his heires Co. super Litt. 213. shall render to a stranger and his heires a yearely rent of twenty shillings c. and if hee faile of payment thereof that the feoffor shall reenter albeit this as a reservation of rent is meerely void and the condition that doth call it a rent is meerly mistaken yet the condition is good and ut res valeat the words shall be taken contrary to their proper sense If I enfeoffe I S of land on condition that if I D give to him ten Perk. Sect. 798. pound or goe to Rome before such a day c. that then the feoffee shall pay to me ten pound c. this is a good condition If a feoffment be made to one and his heirs on condition that if Co. super Litt. 207. the feoffee pay to the feoffor ten pound hee shall have the fee of land this is not a good condition But if he say further And if he fail to pay that the feoffor shall reenter this is good If a gift in tail be made to a man and the heirs of his body and Co. super Litt. 224. if he die without heirs of his body that then the donor and his heirs shall reenter this is a void condition for when the issues fail the estate is at an end Conditions that are so penned as they are insensible and altogether Muddy Gardners case Adjudge pasche 14. Jac. B. R. Co. 6. 41. incertain are void as if one make a lease on condition that if the rent be behinde to restrain and if there bee not sufficient the ground to enter into the premisses this condition is void for insensibility and the estate is absolute Et sic de similibus A condition to enlarge or encrease an estate may be good as if Co. 8. 75. Plow 477. 481. Litt. Sect. 350. Perk. Sect. 710. Plow 135. 10 Ass pl. 15. Perk. Sect. 745. 707. Plow 25. Litt. Sect. 707. 350. Plow 272 482 483. 4 H. 7. 4. See more in the Lord Staffords case Co. 8. 73. To enlarge an estate a gift be made in tail or a lease be made for life or years on condition that if such an act be done or not done the lessee shall have the land to him and his heirs as if one make a lease for life to one and if the lessor die without heir of his body then he doth grant the land to the lessee and his heirs for ever Or if land be granted to a man for 5 years on condition that if the grantee pay to the grantor within the two first years ten pound then that he shall have the âeesimple otherwise that he shall have the land but for five years and livery of seisin be made according to the deed this is a good condition and by this upon the performance of the condition the feesimple will passe So if one grant land for five years rendring rent and that if the lessee will hold it over to him and his heirs that he shall pay twenty pound rent this is a good condition and if be pay the rent he shall have the feesimple So if a man make a lease for years and at the same time for the surety of the terme to the lessee makes a feoffment to him upon condition that if he be disturbed in his term he shall have the feesimple of the land and deliver both these deeds at one time and give livery of seisin accordingly this is a good condition So if a lease for life be made upon condition that if the lessor or his heirs pay to B or his heirs ten pound at a certain day that then the lessor may reenter and if he doe not pay it at that time and the lessee pay to the lessor or his heirs ten pound at a certain day after the former day that then the lessee shall have the land to him and his heirs for ever this is a good condition But in all cases where these kind of conditions are good to make the increased estate good there
Co. super Litt. 223. to be contrary and that a condition to restrain the making of such leases is good for this power is not incident Dier 48. Co. 6. 43. to the estate but given to him collaterally by the Statute and Quilibet potest renunciare juri pro seintroducto But tota curia in Mary Portingtons case is against him If a man make a gift in tail to A the remainder to him and his heirs on condition that he shall not Co. super Litt. idem Dier 227. alien this condition as to the estate tail is good and void as to the other And therefore if an alienation be he shall defeat it onely as to the estate tail And if a man make a gift in tail on condition that Co. 6. 43. the donee or his heirs shall not alien this is a good condition to some intents and void to other and therefore if he make a feoffment in fee or any other estate by which the reversion is discontinued tortiously the donor shall enter otherwise if he suffer a common recovery And a gift in tail on condition that the tenant in tail shall not make a lease for his own life is not a good condition by Co. 6. 43. against Co. super Litt. 223. If one seised in fee of land and Co. 6. 43. 4. 84. super Litt. 223. make a lease of it for years or life on condition that the lessee shall not alien the land leased or any part thereof during the term or on condition that he shall not alien it or any part of it during the term without licence of the lessor these are good conditions So if one be seised in fee of a Manor and he make a lease of years of it to I S on condition that he shall not make voluntary estates by copy this is a good condition But in a feoffment in fee such a condition is repugnant and void And if one be possessed of a lease for years or of a house or of any other chattel reall or personall and he give or sell all his interest therein upon condition that the donee or vendee shall not alien the same this condition is void for repugnancy and the gift or sale is absolute If one make a feoffment of land in fee on condition that the feoffor Co. 2. 72. Dier 318. shall retain the land for twenty years without interruption it seems this is a good condition and not repugnant If I grant land to another for life if it shall please me so long to Dier 94. suffer him it seems this condition is repugnant and void If a feoffment be made of land in fee on condition that the feoffee Co. 10. 39. super Litt. 206. Plow 77. 133. 21 H. 7. 8. 8 H. 7. 10. Perk. Sect. 731. shall not enjoy the land or shall not take the profits of the land or on condition that the heire of the feoffee shall not inherit the land or condition that the feoffee shall not doe wast or condition that his wife shall not be endowed in all these and the like cases the condition is void as repugnant to the estate If a gift in tail be made on condition that the donee or his issues Co. 6. 41. 1. 84. super Litt. 224. shall not take the profits of the land or on condition that if the donee die his estate shall go unto another or on condition that their wives shall not be endowed or on condition that they shall not do wast or on condition that warranty and assets or a collaterall warranty shall not bar the issues in tail all these conditions are repugnant and void If lands be given or granted to two and their heirs on condition Co. 1. 84. that the survivor shal have the whole notwithstanding partition or on condition that the survivor shall not have the whole albeit there be no severance these conditions are repugnant and void If one make a lease for life on condition that the lessee shall not Perk. âol 141. doe fealty this condition is not good If lands be given to one and the heirs males of his body provided Co. super Litt. 204. that if he die without heirs females of his body that the donor shall reenter this condition is repugnant and void If one have land in possession or reversion and he grant a rent Co. super Litt. 146. 10 H. 7. 8. Co. 6. 41. 5 H. 7. 7. 7 H. 6. 44. Perk. Sect. 732. out of it on condition that the grant shall not charge the person of the grantor this is a good condition and not repugnant But if a man grant a bare annuity or grant a rent charge out of another mans land with such a condition or if one grant a rent charge on condition that the grantee shall not distrain nor charge the person of the grantor or if one grant a rent out of land on condition that the land shall not be charged with it all these conditions are repugnant and void So if two grant a rent charge out of land provided that it shall not extend to one of them this condition is repugnant and void If a man seised in fee of land make a lease for years rendring rent Perk. Sect. 733. and after the lessee makes a lease to the lessor of other land on condition that he shall not distrain for his rent in the former lease made to this lessee this is a good condition and not repugnant If one make a feoffment in fee or lease for life with warranty on Perk. Sect. 734. Dier 47. condition that the feoffee or lessee shall not vouch to warrant nor recover in value or if the lease be made without impeachment of wast on condition that if the lessee doe wast the lessor shall reenter these are good conditions and not repugnant All conditions annexed to estates being compulsory to compell a Co. super Litt. 223 224. 207. Perk. Sect. 722 723. Conditions against Law man to doe any thing that is in its nature good or indifferent or being restrictive to restrain or forbid the doing of any thing which in its nature is malum in se as to kill a man or the like or malum prohibitum being a thing forbidden by any Statute or the like all such conditions are good and may stand with the estates But if the matter of the condition tend to provoke or further the doing of some unlawful act or to restrain or forbid a man the doing of his duty the condition for the most part is void And therefore if lands be given or granted to a man upon condition that he shal kil a man or upon condition that he shal burn his neighbours house or upon condition that he shall forswear himself or upon condition that he shall save and keep harmlesse the grantor whatsoever he shall doe or that if hee doe not these things the grant shall bee void this condition is void
be done be a corporall service as to pay money or any such like thing the party that is to doe it must at his perill seek out the person to whom it is to be done if he be infra regnum Angliae but if he be not within the kingdome he is not bound to seek him and yet the condition is not broken And if the thing to be done be either locall i. such a thing as must be done in or at a place certain as the making of a feoffment of land payment of rent or the like in this case the To pay mony thing must be done at that very place and a tender of doing it in that place is a sufficient performance of the condition as for examples If a feoffment be made on condition that the feoffee shall pay to the feoffor twenty pound on Easter day at Dale and the feoffee tender the twenty pound the same day at Sale And albeit the feoffor be at Sale and he tender the twenty pound to his person there the same day yet this is no performance of the condition And if a feoffment be made in mortgage on condition for the payment of money at a day and no place is set for the payment thereof in this case the mortgagor must seek the mortgagee and tender it to his person at his perill and tender of the money upon the land mortgaged is not a sufficient performance of the condition And if a feoffment be made on condition that the feoffee shall infeoffe To infeoffe the feoffor of white acre in Dale in this case the feoffment or the tender of it must be in Dale and cannot be elsewhere and a tender of it there is sufficient to perform the condition So if the condition To acknowledge satisfaction be that the feoffee shall in Easter Terme next acknowledge satisfaction upon a Judgement in the Kings Bench this must be done there and cannot be done elsewhere So if a feoffment in fee bee made of white acre rendring rent to the feoffor and his heirs on condition that if the rent be not paid the feoffment to be void and no place is set for the payment of it in this case the feoffee is not To pay rent bound to tender his rent any where for the saving of the condition but upon the land and a tender there is sufficient And if a man make a feoffment in fee without any reservation of rent precedent in the deed on condition that the feoffee and his heirs shall render a yearly rent of twenty shillings a year to the feoffor and his heirs and if they fail that the feoffor shall reenter in this case also it seems the payment or tender must be upon the land But if the condition be that he shall âender twenty shillings a year to a stranger and his heirs this is no rent nor in the nature of a rent and therefore in this case the feoffee must tender it to the person of the stranger where he can find him at the day or else hee doth break the condition and tender upon the ground is not sufficient But in these cases if the nature of the thing to be done be such as will not admit of such a cariage from place to place to seek out the person of the feoffor c. there albeit the thing to be done be corporall or transient and not a locall thing yet that is to doe it shall not be bound to seek out the person of the other as for example If an estate be made on condition that the grantee shall To deliver wood or corn deliver twenty quarters of wheat or twenty load of wood to the grantor at such a time and no place is set for the doing thereof in this case the grantee is not bound to cary the same about to seek the feoffor or grantor as he is bound to cary money but before the day the grantee is to know of the grantor where he will appoint to receive it and there it must be tendred And the like law is for the most part in conditions of obligations It is best therefore in all these cases and herein he that is to be Obligation A Caveat the agent is to take care to have certainty of time and place set down in the condition for the doing of the thing that is to bee done and the more certain it is the better it is for him If a lease be made on condition that the lessee shall pay to the Per Just Bridgeman lessor all such sums of money as the lessor shall lay out in such a 4. In respect of other matters To pay mony businesse in this case the lessor must first tender to the lessee a note of the charges before the lessee is bound to pay and untill this be done the condition cannot bee broken And after a note is given also he shall have some reasonable time to provide the money And if he tender him a note of more then in truth he doth lay out the lessee if he know it may pay so much as is laid out and he may refuse to pay any more If lands be granted upon condition that A shall make an estate To make an estate Co. 5. 22. of lands at the charges of B in this case A must doe the first act viz. notifie to B what assurance he will make before B is bound to tender the charges If a feoffment be made on condition that the feoffee shall give so To deliver houshold stuffe or pay money Pasche 17. Jac. B. R. much houshold stuffe to the feoffor or so much mony for it as it shal be rated at by two indifferent persons to this end to be chosen it seems in this case the election of the two men must be by the feoffee but if the words be by two persons to be indifferently chosen then the election shall be by both parties for in the first case the word Indifferent doth goe to the praising not to the persons If a feoffement be made of a ground on condition that the feoffee To clense ditches 27 H. 8. 1. Plow Colthirsts case 21. shall âake the ditchâs in this case if the feoffee doe it once it is a sufficient performance of the condition And yet if a man grant a house for life on condition that the lessee shall dwell and be resident in the house during the said terme in this case it is not sufficient To dwell in the house that he dwell in it once during the terme but must doe so all the terme or else the condition is broken If an annuity be granted of tenne markes per Annum to a man on Perk. Sect. 804. condition or till he be promoted to a benefice by the grantor and it is not said of what value the benefice shall be in this case it shall be taken for a benefice of as great value and of as good an
estate as To give goods the Annuity is otherwise the grantee may refuse it and yet his Annuity shall continue If a feoffment be made on condition that the feoffee shall give all Perk. Sect. 742. his goods si quae fuerint or give al his Pikes in his pond si quae fuerint in this case the words shall be taken in the present tense for the goods and Pikes that are at the time of the grant But if a feoffement be oâ condition that the feoffee shall give all his goods in London si quae fuerint that did belong to I S in this case the words shall be taken in the preterperfect tense If one make a lease of the Manor of Dale wherein is a wood Haward Fulchers case Hââ 3. Car. B. R. Not to disturb the lessor in taking the wood called Dale wood excepting all the woods and underwoods growing in Dale wood and all the great trees growing elsewhere and this is upon condition that if the lessee shall disturbe the lessor to cut and sell the wood and underwood excepted the lease to be void in this case it seemes the condition shall extend only to the wood and underwood in Dale wood and not to the trees elsewhere but if the words of the condition be shall disturbe c. to cut c. the wood and underwood on the premisses contra If one grant land rendring rent at the Feasts of S. Michaell and Dier 142. To pay rent our Lady day or within a moneth after on condition that if it be behind after the Feasts and daâes limited by the space of eight weekes that the lease shall be void in this case the eight weekes shall be accounted from the moneth which is the twenty eight day after the Feast If the condition be made in the copulative and consist of divers 12 H. 7. 10. Co. super Lit. 225. Perk. Sect. 746. Dier 337. 372 parts every part must be observed or the condition will not be performed But when it is made in the disjunctive if any part of it be observed it is a sufficient performance of the condition And therefore if a feoffement be made on condition to reinfeoffe and pay twenty pound and the feoffee do reinfeoffe but not pay the twenty pound in this case the condition is broken But if the condition be to reinfeoffe or pay twenty pound and the feoffee doe one of them it is a good performance of the condition And when it is made in the copulative and disjunctive both it shall be taken in the disjunctive only as if a lease be made to A and B his wife on condition that the said A and B or any child between them shall so long live this shall be taken in this sense if the husband wife or child shall so long live so that the lease shall not be determined by the death of the husband or wife alone If there be two provisoes in two severall indentures of conveyance of severall Manors to A and B that if the feoffor pay or tender twenty shillings to A and B or the heires of A that the Conveyance shall be void and A die in this case tender to B is not sufficient and it must be made to the heire of A and it must be twenty shillings for every proviso but otherwise it is of a collaterall act If the words of a condition be thus that upon such a contingent Co. 3. 64. super Lit. 203 204. Dier 6. 127. 11 H. 7. 21. the party shall enter and retaine the land untill the thing be done c. in this case and by these words the estate is not determined as it is by these words that the estate shall be void or that the grantor shal râenter or the like And in these words there is a difference also to be observed for if the words be that upon such a contingent the estate shall cease and be void and it be a lease for years to which the condition is annexed the estate is ipso facto void without entry or claime and can never be affirmed afterwards but if the words of the close of the condition be that the feoffor lessor c. shall reenter without any other words albeit it be in a lease for years yet the lease is not void untill he hath made an actuall reentry But in both cases if the estate to be avoided be an estate in âee or for life it is only voidable by the breach of the conditiââ and must be made void by entry or claime and untill this be âone the grantor can make no new estate of the land But in the first case before the party shall retaine the land and take the profits of it in the nature of a pledge untill the thing be done agreed upon in the condition and then the other party shall have the land againe See more in the next questions And in Obligation Numb 7. Covenant Numb 6. 9. When and how a Condition or Limitation shall be said to be performed Or not 1. When the act is to be done be tween the parties themselves To make an estate The words of a condition may be performed and not the intent Co. 8. 90. Lit. Sect. 352. Co. 3. 64. 282 2 H. 4. 11. and the intent may be performed and not the words and then for the most part a condition is performed when the intent and meaning of it is observed And therefore if a feoffement be made on condition that the feoffee or his heires shall make an estate to the feoffor and his wiâe in taile before such a day and before the day the husband die and then he make an estate as neere it as he may viz. to the wife for life without impeachment of wast and after to the heires of the body of the husband this is a good performance of the condition And if the condition be that the grantee Co. super Lit. 207. shall make a feoffement of land and he make a lease of the land first and then a release to the lessee and his heirs this is tantamount and a good performance of the condition If a feoffement be made on condition that if the feoffor or his Co. super Lit. 222. Perk. Sect. 802 803. heires pay tenne pound by a day the feoffement to be void and the To pay money feoffor before the day doth commit treason and is executed and so dieth without heire and after before the day the heire is restored and he at the day doth pay the money in this case this is a good performance notwithstanding there was once a disability So as if heretofore one had made a feoffement on condition to reinfeoffe by a day and before the day the feoffee had entred into Religion and then had been dearaigned and at the day had made the feoffement this had been a good performance of the condition If a feoffement be made upon condition that
if the feoffee shall Co. 5. 96. super Lit. 208. 207. pay to the feoffor tenne pound such a day that then he shall have By and to whom money shall be paid upon a condâtion the land to him and his heirs otherwise that the feoffor shall reenter or if it be made on condition that the feoffee shall pay tenne pound to the feoffor such a day and before the day the feoffee sell the land in this case the seller or the buyer either of them may tender the money at the day and this will be a good performance of the condition for he that hath interest in the land on the one side or in the condition as party or privy on the other side may tender and performe the condition to save the estate If lands be mortgaged or which is all one if a feoffement be Lit. Sect. 534. 537. 15 H. 7. 2. Co. super Lit. 206. made of lands on condition that if the mortgagor or feoffor pay tenne pound to the feoffee such a day that then the estate shall be void before the day the mortgagor or feoffor die in this case the heire or executor of the feoffor the Ordinary the Gardian in Chivalry or Socage of the heire of the feoffor or any other by either of their commandement precedent or assent subsequent may pay this money at the day and payment or tender of it by either of them at the day is a good performance of the condition * Lit. Bro. Sect. 12 5. And so also it seemes is the law upon a devise of land to I S paying to Testament I D twenty pound if I S die his heire or executor may pay the twenty pound and this is a good performance of the condition But in these cases if a stranger of his owne head without any such commandement or agreement pay the tenne pound this will be no good performance of the condition And yet perhaps if the party Lit. Sect. 337 that is to pay it be an Ideot the payment or tender by any one in his behalfe shall be a good performance of the condition And if a feoffement be made on condition that if the feoffor pay tenne pound to the feoffee that the estate shal be void no time is set for the payment of this mony the feoffor die before any payment or tender made in this case his heire cannot tender it and so perform the condition If a feoffement be made on condition that if the feoffor and Co. super Lit. 207. Bro. Condition 109. I S pay tenne pound such a day the feoffement to be void and the feoffor die before the day and I S alone pay it this is a good performance of the condition If a feoffement be made on condition that if the feoffor pay to the feoffee or his heires tenne pound such a day and before the day Co. super Lit. 210. 5. 96 Dier 181. 101. Co. 6. 69. Lit. Sect. 339. the feoffee doth grant the land away to another in this case the money may be paid to the feoffee himselfe or if he be dead to his heires and this payment is a good performance of the condition And if the words of the condition be That if he pay to the feoffee his heires or assignes c. in this case payment to either of them is a good performance of the condition so as if in this case the feoffee make a feoffement over it is in the election of the first feoffor to pay the money to the first or second feoffee and if the first feoffee die to pay it to his heire or the second feoffee But payment to an executor or administrator in this case is not a good performance And yet if the words of the condition be that if he pay to the feoffee without words heires executors c. tenne pound such a day in this case the payment may be made to the executor or adminstrator of the feoffee after his death and such a payment is a sufficient performance of the condition And if the words of the condition be that if the feoffor pay to the feoffee his heires executors or administrators c. in this case payment to either of them is a good performance of the condition But payment to an assignee in this case is not good And if the words be that if he pay to the feoffee and his heires c. in this case payment to his executors or to his assignes is not a good performance of the condition So that in all these cases it seemes for the person to whom payment is to be made the words of the condition are precisely to be pursued If a feoffement be made on condition that if the feoffor shall To tender money Pas 9 Jac. 5. Sir Richard Lees case tender twelve pence to the feoffee such a day the feoffement to be void and afterwards the feoffee is disseised of the land and after the feoffor doth tender the twelve pence to the feoffee at the day this is a good performance of the condition If a feoffement be made to two men on condition that they To reinfeoffe shall reinfeoffee the feoffor or make a lease to him by a day and before Dier 69. 41 E. 3. 25. the day one of them die and the survivor doth reinfeoffe or make the lease this is a good performance of the condition And so also it seemes the law is if both the feoffees be living for by his owne acceptance it seemes he hath dispensed with the condition and so cannot enter for the breach of it If a feoffement be made on condition that the feoffee shall infeoffe Plow 23. 3 H. 7. 4. 21 H. 6. 10 the feoffor of the Manor of Dale by such a time and before the time appointed the feoffee doth grant a rent charge out of the Manor to a stranger and then at the time appointed makes a feoffment of the Manor according to the condition in this case this is a good performance of the condition But if in this case the feoffee before the time appointed grant away to a stranger twenty acres parcell of the Manor and then doth make a feoffement of the Manor according to the condition this is no good performance of the condition And if a feoffement be made on condition that the feoffees or lessees in trust of such land shall grant an Annuity out of it and some of them only doe grant this Annuity this is no good performance of the condition If there be a feoffement made upon condition that the feoffee 44 E. 3. 22. To make a lease shall make a lease of land to the feoffor for life the remainder to I S in fee and the feoffee make a lease to the feoffor for life and after by another deed doth grant the reversion to I S this is a good performance of the condition If a feoffment be made upon condition
that the feoffee shall purchase Perk. Sect. 807 808. 21 H. 6. 28. Dier 15. lands or tenements to the value of twenty pound per Annum To purchase lands and he purchase a rent common or any such like thing to that value this is a good performance of the condition But if in this case the feoffee and another purchase so much land together jointly this is no good performance of the condition So if the feoffee alone purchase lands to the value of twenty pound per Annum and there is a rent issuing of it which must be deducted this is no good performance And yet in these cases if the stranger Jointenant release to the feoffee all his right in the land or the grantee of the rent release to him the rent before the time of the performing of the condition the condition is well performed in both cases Tantum valet terra quantum vendi potest And if one make a feoffement Perk. Sect. 812. in fee on condition that if the feoffee purchase land to the value of twenty shillings the feoffement shall be void and after the feoffee disseise another man of land to that value it is said that by this the condition is performed Sed quere And that if he recover so much land in value in an action that this is no performance of the condition Sed quere For this seemes to me a better performance Payment of the condition then the former To pay mony Tender If lands be granted on condition to pay money and the money Dier 181. Lit. Sect. 334 335. 338. Co. super Lit. 209. is tendred according to the condition but either no body is ready to receive it or it is refused this is a good performance of the condition And after a man hath once refused the money so tendred to him according to the condition he hath no remedy in law âo recover it except it be money lent upon a mortgage a Termes of the law tit coine And if the payment be made part of it with counterfeit Coine and the party accept it and put it up this is a good payment and consequently a good performance of the condition b Co. super Lit. 212. Fitz. Barre 343. And if at the day of payment the parties doe account together and he to whom the money is to be paid being indebted to the other that debt by agreement Acceptance is allowed and the residue is paid and accepted this is a good performance of the condition c Co. super Lit. 212. So if the party that is to receive it accept and take new security by bond or statute for the money this is a good performance of the condition d Dier 45. Co. 5. 96. And so in most cases when by a condition a thing is to be done one way and to be done to the party to the condition himselfe and not to a stranger and he doth accept it another way this is a good performance of the condition VoleÌti non fit injuria But if the thing to be done be to be to a stranger one that is no party to the condition and it be done in any other manner and he accept thereof this is no performance of the condition And so also if the time of doing the thing be past as if one make a feoffement to me on condition that if he pay me tenne pound such a day the feoffement shall be Perk. Sect. 392. void and he doth not pay me at the day but doth die and after by agreement between his heire and me me doth pay me the tenne pound and I receive and accept it and thereupon I suffer him to enter and hold the land in this case the condition is not performed but I may enter upon him and out him notwithstanding If the mortgagor pay the money according to the condition and Adjudge Mich. 40. 41 Eliz. B. R Powel versus Bartholomew after the mortgagee deliver it to the mortgagor as his own money the condition is performed and the mortgage discharged notwithstanding If a feoffement be made to I S on condition that if the feoffor pay to the executors or administrators of I S tenne pound the Co. 5. 96. super Lit. 209. feoffement shall be void and I S die and the tenne pound is paid to the executors of I S according to the condition but it is covinouâây done i. there is a private agreement that the feoffor shall have all or part of his money againe this payment in this case is no good performance of the condition but that payment that must be a performance of a condition in this case to fetch lands out of the hands of an heire must be reall full and effectuall If a lease be made on condition that the lessee shall get the To get the good will of I S. 14 H. 8. 17. good will of I S and the lessor doth come to I S first and aske his good will and he denie it him and after when the lessee doth aske it he doth grant it him in this case the condition is performed So if the condition be that he shall get his good will by such a day and at the first being desired he denieth it but afterwards and before the day he doth grant it And yet if no day be set and he desire his good will and I S denieth it and afterwards he doth get his good will it seemes this is no performance of the condition If there be two things in the copulative to be done by the condition Perk. Sect. 746 See before both must be done otherwise the condition will not be performed If a feoffement be made on condition that if the feoffor and I S Co. super Lit. 219. pay tenne pound at Michaelmas the feoffement shall be void 2. When the act is to be done by a stranger to pay money 3. When the act is to be done to a stranger To make an estate and before the day the feoffor die and I S pay the money this is a good performance of the condition But if the feoffor be living contra If a feoffement be made on condition to make an estate to a Plow 133. Co. 3. 64. stranger by a day and before the day he die in this case if an estate be made as neere the condition as may be it is sufficient * Tender If a feoffement be made to I S on condition that he shall infeoffe Co. super Lit. 209. 19 H. 6. 67. Perk. Sect. 815 816. 2 E. 4. 2. 19 H. 6. 67. I D and his heires and I S doth tender the feoffement to I D and he doth refuse to take it this is no performance of the condition in this case But if it be to be done to the feoffor himselfe contra And so also it is if the condition be to make an estate taile or any lesser estate to a
stranger and he tender it and the stranger refuse it this is no good performance of the condition And if a feoffement be made on condition to reinfeoffe the feoffor and his wife in taile the remainder to W in fee and he tender it to the wife only and not to him in remainder this is no good performance of the condition And the same law for the most part is in conditions of obligations See more in Obligations at Numb 9. If a feoffement be made on condition that the feoffee shall not Co. super Lit. 222 Dier 45 46. 10. What act shall be a breach of a Condition in deed And when a condition in deed shall be said to be broken Or not infeoffe I S of the land and the feoffee doth make a feoffment to I S and I D this is a breach of the condition And so also it is if the feoffee make a feoffement to I D to the intent that he shall alien to I S. Quando aliquid prohibetur fieri directo prohibetur per obliquum And yet if the feoffee in the case before alien to I D and after he doth alien to I S this is no breach of the condition And if the condition be that the feoffee shall not infeoffe I S and he die Not to alien and his heire enfeoffe I S this is no breach of the condition If a lease for years be made on condition that the lessee shall not Dier 45. 65. assigne or alien the term or the land during his life without the licence of the lessor and the lessee doth give it by his will without licence this is a breach of the condition and forfeiture of the estate But if he make an executor of his will only this is no breach And if the condition be that the lessee shall not alien and he die and his executor alien this is no breach of the condition And if the condition Per 3. Justices B. R. 3 Jac. be that the lessee shall not alien but to his children and the lessee by will devise it to his executors it seemes this is a breach of the condition So if he devise that A his sonne shall have his term after his wife and doth make A his sonne his executor it seemes this is a breach of the condition But if he doe not make A his executor contra And in cases of devise albeit the executors doe not assent yet the condition is broken as in case where a reversion is granted on condition that the grantee shall not alien it and he doth alien it but no atturnement is to this grant yet it seemes this is a breach of the condition And if a lease for years be made on Dier 6. condition that the lessee or his assignes shall not alien and the lessee doth make his wife his Executrix and shee doth take another husband and he doth alien it it seemes this is a breach of the condition and a forfeiture of the estate But if a lease be made on condition that the lessee shall not alien without the licence of the lessor and after the lessor die and the lessee assigne or the lessee die and his executors or administrators assigne this is no breach of the condition in either of these cases So if a lease be made on condition that the lessee shall not alien the terme during his life and he makes an executor but doth not devise it to him this is no breach of the condition And if a lease be Dier 152. Co. 4. 120. made on condition that the lessee his executors or assignes shall not alien the terme to any persons without the licence of the lessor but to the wife or one of the children of the lessee and the lessee die and his executors alien to one of the children of the lessee and he alien to a stranger without licence this is no breach of the condition And if one make a lease of a house and Hil. 38. El. Marsh versus Curtis land on condition that the lessee shall not parcell out the land or any part of it from the house and the lessee doth grant all his terme in the house and part of the land and doth keepe the rest and after doth lease that part also this is a breach of the condition If a lease be made of a house on condition that the lessee shall Not to suffer a woman with child in the house Co. 8. 92. not suffer any woman great with child to harbour or lodge in the house six daies after notice given by the lessor and the lessee doe suffer any such person after notice given albeit the lessor consent to it yet the condition is broken But if the lessor doe nolens volens keep such a woman there against the mind of the lessee this is no breach of the condition If a lease be made on condition that if any wast be done Not to doe wast 12 H. 4 5. Bro. Condition 40. the lessor shall reenter in this case if the house fall by a tempest this is no breach of the condition for this is not wast but if it be uncovered by tempest and the tenant hath a convenient time to repair it and doth not but doth suffer the timber to perish for want of covering this is a breach of the condition and the lessor may enter and put out the lessee * Per. Dier and Walsh Justices Dier 281. And if a lease be made on condition that that lessee shall not doe wast and he suffer wast to be made in decay of the houses c. it seemes the condition is broken Sed quere If a lease be made on condition that if the lessee be minded Not to sell till the lessor refuse it to any other Dier 13. to sell his estate the lessor shall have the first offer thereof giving as much as another will give in this case if the lessee doth not give notice when he is minded to sell it he doth breake the condition but if when he is minded to sell he doth tell the lessor of his purpose and what he is offered for it and the lessor doth either say he will not have it or that he will not give so much for it or doth not accept it but doth delay c. and then the lessee doth sell it to another this is no breach of the condition neither is he bound to waite upon him in this case If a feoffement be made on condition that the feoffee shall Co. super Lit. 221 222. Co. 2. 58. Perk. Sect. 80. 803. Lit. Sect. 355. Co. super Lit. 206. make a feoffement in fee gift in taile lease for life or years To make an estate of the land to the feoffor or to a stranger by a day and before the day the feoffee doth disable himselfe to doe it either by making some estate of the same thing to some other person in taile
part of the mother shall enter upon him and enjoy the land And if a man be seised of land in the right of his wife and he make a feoffement in fee of it upon condition and die the heire of the husband shall enter for the condition broken but the wife shall have the land And so also is the law as touching Privies in right and representation for Executors and Administrators shall take advantage of a condition now as heretofore And so also shall the Successors of a Deane and Chapter Bishop Arch-deacon Parson Prebend or any body Politique or corporate Ecclesiasticall or Temporall these shall take advantage of conditions as heretofore they did So also the law is the same as touching Privies in law for they shall no more take advantage of a condition now then heretofore But as touching grantees of reversions and Privies in estate there is some alteration made of the Law for by a new law it is provided That all persons which Sat. 32 H. 8. cap. 34. shall have any grant of the King of any reversion c. of any lands c. which pertained to Monasteries c. as also all other persons being grantees or assignees c. to or by any other person or persons and their heires executors successors and assignes shall have like advantage against the feoffees c. by entry for not payment of rent or for doing wast or for other forfeiture c. as the said lessors or grantors themselves ought or might have had And for the true understanding of the sense of this Statute Co. super Lit. 214. Plow 27. and the ancient Common law further touching this point 1. These diversities must be observed to be taken before the Statute which take place still 1. Between a condition that doth require a reentry and a limitation Co. 10. 36. F. N. B. 201. that doth ipso facto determine the estate without entry for albeit a stranger might not take advantage of the first yet he might take advantage of the last by the Common law And therefore if a man at this day make a lease to another quousque or untill I S come from Rome or if a man make a lease to a woman quamdiu casta vixerit or if a man make a lease to a widow si tamdiu in pura viduitate viveret or if a man make a lease to another for one hundred years if he live so long and then the lessor doth grant the reversion to a stranger in all these and such like cases the grantee of the reversion may take advantage of the limitation for after the estate is ended by the limitation he may enter 2. Between a condition annexed to a freehold and a condition Co. 3. 64 65. Co. super Lit. 214. 11 H. 7. 17. Plow 136. annexed to a lease for years for if before the Statute a man had made a gift in taile or lease for life on condition that if the donee or lessee did not pay tenne pound by such a day the gift or lease should be void or cease in this case the grantee of the reversion could not by the common law have taken advantage of the condition for it could not be void or cease but by entry which could not be transferred to another But if a lease for years had been made on such a condition a grantee of the reversion might by the common law have taken advantage of this condition for the estate in this case was by the breach of the condition ipso facto void without entrie But now the grantee of the reversion shall have advantage of the condition in both these cases 3. Between a condition in deed and a condition in law for by Co. super Lit. 214. the very common law not only the grantee of the reversion but also the Lord by Escheat may either of them have advantage of a condition in law for any breach in his owne time 2. These Resolutions and Judgements upon the Statute must be marked 1. That the Statute is generall and the grantee of the revesion Co. super Lit. 214. Co. 5. 13. of every coÌmon person as well as the King may take advantage of conditions 2. That the Statute doth extend to grants made to the successor of the King aswell as to the King albeit he only be named in the Statute 3. That he that comes to the reversion by fine feoffement grant limitation of use common recovery or bargaine and sale is such a grantee as is within the intendment of the Statute 4. That where the Statute doth speake of feoffees c. that it doth not extend to gifts in taile and therefore if a gift in taile be upon condition and after the donor doth grant the reversion this grantee shall never have any benefit of this condition 5. That where the Statute doth speake of grantees and assignees of the reversion that hereby an assignee of part of the state of the reversion may take advantage of the condition as if lessee for life be and the reversion is granted for life c. or if lessee for years be c. and the reversion is granted for years c. in these cases the grantees of the reversion shall have advantage of the conditions * Davy and Mathews case per. 2 Justiâes Trin. 1â 1 Jac. B. R. So if a lessee for one hundred years make a lease for tenne years rendring rent with condition of reentry and the first lessee doth afterward grant his terme and estate to I S in this case I S is such a grantee and assignee of the reversion as shall take advantage of the condition 6. That as well mediate as immediate grantees i. the grantees of grantees in infinitum are intended within Co. 5. 112 113. Co. super Litt. 214. this Statute 7. That a grantee of part of the reversion cannot take advantage of a condition by this Statute And therefore is a lease be made of three acres reserving rent upon condition and the reversion is granted of two of the three acres in this case the Prerogative rent shall be apportioned but the condition is destroyed except it be in the Kings case And yet a condition may be apportioned ApportionmeÌt by the act of law or by the wrong of the lessee As if a lease be made of two acres the one of the nature of Burrough English and the other at the Common law upon condition and the lessor having issue two sonnes dieth in this case each of them shall enter for the condition broken And if the lessee upon condition make a feoffment of part of the land this doth not destroy the condition There is therefore herein a difference between a condition Power of revocation that is compulsory and a power of revocation that is voluntary for he that hath such a power may by his own act extinguish it in part by levying a fine of part of the land or
otherwise and yet his power may remain for the residue as in the case of a limitation but in the case of a condition he cannot doe so 8. Such grantees as shall have advantage by this Statute must be compleat grantees Co. 5. 113 114. Co. 8. 92. And therefore grantees of reversions by fine or deed must have atturnment ere they can take advantage of the condition And yet if a reversion be granted by fine to one that hath no atturnment and he grant it to another that hath an atturnment in this case the second grantee shall take advantage of the condition albeit the first grantee shall not And the lessee must have notice of the grant of the reversion ere he in reversion can take any advantage of a condition And therefore it is that if the lessor bargain and sell the land by deed indented and inrolled in which case there needs no atturnment or if the lessor make a feoffment of the land and so out the lessee and the lessee reenter which is an atturnment in law the grantee or feoffee in these cases cannot take advantage of any condition before he hath given notice to the lessee of this grant of the reversion 9. Such as come in meerly by act of law or paramount as the Lord of a Villain the Lord by Co. super Litt. 214. Pasche 7 Jac. Co. B. per 2 Justices escheat the Lord that doth enter for Mortmain or the like cannot take advantage of a condition within this Statute And hence it seems it is that if lessee for forty yeares make a lease for thirty seven years on condition and after surrender his estate to his lessor * Co. super Litt. 215. Dier 309. Curia in Leeks case Pasche 7 Jac. Co. B. Albeit the words of the Statute be generall yet grantees and assignces shall not take benefit of every forfeiture by force of a condition nor yet of all conditions but onely of such as are inherent i. such as are either incident to the reversion as for payment of rent or for the benefit of the State as for restraining of wast for causing of reparations making of fences skowring of ditches preserving of woods and the like And of conditions that are collaterall such grantees shall not take benefit And therefore if the condition be for payment of a sum of mony in grosse to restraine alienation for the delivery of corn wood or the like the grantee of the reversion of the land shall not have advantage of it by this Statute for these remain as they were before the Statute at the Common law 11. Such conditions as are on the part of the lessor it seems are not within this Statute And therefore if one Per Justice Bridgman make a lease for years on condition that if the lessor his heirs or assigns pay ten pound to the lessee at our Lady day the lease to bee void the lessor doth grant the reversion to a stranger before the day it seems the grantee shall not take advantage of this but the condition is gone If one make a lease for years rendring rent to him and his heirs Doct. St. 35. 13 H. 4. 17. on condition that if it be not paid within fourteen days that hee and his heirs shall reenter and the rent is behinde and the lessor doth demand it and then die in this case the heir may enter But if he die before demand the heire cannot make a demand and so take advantage of that breach of the condition which was in the time of his Ancestor If a man be possessed of land for twenty years in the right of his Perk. Sect. 834. wife and he make a lease of it for ten years rendring rent with condition of reentry for default of payment and after the husband die in this case the wife shall have the rent but it seems she shall not take advantage of the condition If a lease be made to I S on condition that if such a thing be Co. 1. 85. super Litt. 379. Dier 127. 117. or be not done that the land shall remain to I D or that I D shall enter in this case I D shall never take advantage of this condition either by the Common law or by this Statute Regularly where a man will take advantage of a condition if he 13. Where entry or claim is needfull to avoid an estate on condition And where a man may take advantage of a condition without entry or claim And where not Co. super Litt. 218. 237. may enter he must enter and when he cannot enter he must make a claim for an estate of freehold or inheritance will not cease without entry or claim And he that is to have advantage by the condition may wave his advantage if he will And untill such entrie or claim made the party that should enter can make no good estate of the thing to any other But herein a difference is to be observed in the penning of a condition and between a lease for yeares and a lease for life or a greater estate for if a lease for years be made on condition that upon such a contingent the estate shall cease or the lease shall be void in this case when the thing doth happen the lease is ipso facto void without entry or claim But otherwise it is of a lease for life albeit there be the same words in the condition And if one make a lease for years on condition that if such a thing be done the lessor shall reenter in this case an entry is needfull to avoid the estate If one make a feoffment in fee gift in taile or lease for life on condition that upon such a contingent the estate shall be void in this case there must be an entry made after the condition is broken to avoid the estate So if one bargain and sell his land by deed indented and inrolled with proviso that if the bargainor pay c. then the estate shall cease and be void he doth pay the mony in this case the estate is not revested in the bargainor before an actuall reentry is made And so it is also if lands be devised to a man and his heirs on condition that if the devisee doe not pay twenty pound at a day his estate shall cease and be void in this case the estate is not void untill an actuall reentry be made And so also it is if a reversion remainder advowson rent common or the like be devised on such a condition in these cases there must be a claime before the estate will be determined And therefore if a man grant such a thing to another and his heirs on condition that if the grantor pay twenty pound on such a day the state of the grantee shall cease or be void and the grantor doth pay the mony according to the condition in this case the state is not revested in the grantor before a claim made at
the Church in case of an Advowson and in the other cases upon the land But in case where a man cannot make an entry or claim there the law will not compell him to it And therefore if one grant land to another for five years on condition that if he pay to the grantor within the two first years forty marks that then he shall have the fee otherwise but for tearm of five years and livery of seisin is made accordingly and the grantee doth not pay this mony in this case after the two years are past the freehold shall be in the grantor without entry or claim for as this case is he cannot enter but he must out the lessee of his term So if I grant a rent charge out of my land upon condition when the condition is broken the rent is extinct and here needs no claim So if a man make a feossment of land to me in fee on condition that I shall pay him twenty pound such a day c. and before the day I let the land to him for yeares â Rent rendring rent and after the condition is broken in this case he may retain the land without entry or claime and the rent is extinct So if one covenant to stand seised to the use of himself for life or otherwise and then after to the use of others with a proviso of revocation c. and after he doth revoke it in this case all the estates are revested in him without entry or claim * 14. When a condition broken shal make the estate c. vold ab initio And when not And to what intents the lessor feoffor c. shall be adjudged by his reentry to be in of his first estate And to what intents not It is generally true that he that doth enter for a condition brâken Co. 4. 120. Peâk Sect. 840. Plow 186. 482. 14 H. 8. 17. doth make the estate void ab initio that hee shall be in of his first estate in the same course and manner as it was when he departed with the possession and at the time of the making of the condition And hence it is that if there be any charge or incumbrance on the land as if lessee of land upon condition grant a rent charge out of the land or enter into a Statute or Recognisance and the conusee have the land in execution and this charge is after the condition is made in this case when the condition is broken and the party doth reenter hee shall by relation avoid the rent statute and recognisances and hold the land freed from them all And if an estate be to passe by way of increase upon condition or a lease is to be made upon a condition precedent when the condition is performed the party shall hold his estate free from all after charges and clogs And if a man enter for breach of a condition in Co. super Litt. 234. Perk. Sect. 843 844. Co. super Litt. 233. law hee shall avoid all charges and acts done after that thing is done which doth produce the forfeiture but he shall not avoid any thing done before that time for he must take the thing as hee findes it as if a house or land belong to an officer in respect of his office and he grant a rent out of it for his life and then he doth forfeit it in this case the rent shall continue And if lessee for life of land grant a rent out of it and then make a feoffment in fee of the land in this case the rent shall continue and the lessor cannot avoid But if lessee for life of land make a feoffment in fee of it and then grant a rent out of the land in this case the lessor shall avoid it And if a lessee grant a rent out of his land and then doe wast and the lessor recover the land he cannot avoid this rent but shall hold the land charged with it But if the lessee doe wast first and then he grant a rent charge to a stranger out of the land and after the lessor recover the place wasted in this case he shal hold the land discharged And if lessee for life make a lease for years and after enter upon the lessee for years and make a feoffment in fee this shall not avoid the lease for years And if a man make a lease for Cââmpt Jur. 64 65. yeares rendring rent with clause of entry for non payment and the lessee doth make underleases of part of this land and after the rent is unpaid and the lessor doth enter in this case he shall have all the land and avoid all the under leases But if there be any covinous practise in the case the undertenants may have remedy Equity in Equity And if a lease be made for life the remainder in Co. 10. 41. taile on condition in this case if the condition be broken both the estates be avoided Et sic de similibus But this generall rule Co. super Litt. 202. Perk. Sect. 242. 842 843. doth faile in divers particulars as if a man bee seised of land in the right of his wife and he maketh a feoffment in fee by deed indented upon condition that the feoffee shall devise the land to the feoffor for life c. and the husband dieth and then the condition is broken in this case the heir of the husband shall enter and yet he shall not have the estate of the feoffor for this doth presently after his entry vanish away So if a tenant in speciall tail hath issue and his wife dieth and tenant in taile maketh a feoffment in fee upon condition the issue dieth the condition is broken and then the feoffor doth reenter in this case he shall have but an estate for life as tenant in tail after possibility of issue extinct So if a lessee for life or years make a feoffment in fee on condition and after doth enter for the condition broken in this case he shall not be in in the same course for now his estate is subject to entry for forfeiture though he be tenant for life still So if a disseisor be of certain land and he die seised thereof and his heir is in by descent and the disseisee enter upon the heir and infeoffe a stranger upon condition and the heir of the disseisor doth enter upon the feoffee and the disseisor doth sue a writ of entry sur disseisin against the heir of the disseisor and doth recover and hath execution and the feoffee on condition doth reenter and after the condition is broken in this case the feoffor is not in in the same case for now the disseisor cannot enter upon him as he might before And in some cases the feoffor by his reentry shall be in in his former estate but not in respect of some collaterall qualities as if tenant by homage Ancestrell make a feoffment of the land he doth so hold in fee
on condition and entreth for the condition broken in this case it shall never be held in homage Ancestrel again And so if a copyhold escheat be and the Lord make a feoffment in fee upon condition and entreth for the condition broken in this case the custome annexed to that land is gone So if there be Lord and tenant by fealty and rent and the Lord is in seisin of the rent and granteth his Seigniory to another and his heirs on condition and the tenant doth atturn and payeth his rent to the grantee the condition is broken the Lord distraineth for his rent and rescous is made in this case the former seisin shall not enable him to have an assise without new seisin If there be Lord and tenant and the Lord disseise the tenant of the tenancy and thereof doth enfeoffe a stranger on condition and after the condition is broken and the Lord enter and the tenant doth enter upon him in this case the Seigniory is not revived If tenant in tail make a feoffment in fee on condition and dieth and the issue in tail within age doth enter for the condition broken in this case he shall be in first as tenant in feesimple and heir to his father and then shall be presently remitted but if he be of full age he shall not be remitted If one make a feoffment of white acre and black acre on condition c. and that he shall enter into black acre onely in this case Co. super Litt. 202 203. upon breach of the condition he shall enter into that part onely If the words of a condition be That if such a thing be not done the feoffor or lessor shall enter into the land and take the profits thereof untill the thing be done or to the like effect in this case if the feoffor or lessor enter upon the breach of the condition hee doth not avoid the estate or get any thing by his entry but the possession onely in the nature of a pledge or a distresse untill the thing be done And if the condition be for the payment of the rent he shall hold the land untill he be paid the rent And if the words be That the feoffor c. shall enter and take the profits untill thereof he be satisfied or untill he be satisfied or paid the rent in the first case as soon as he is paid either by the receiving of the profits or payment of the rent behind or both together and in the last case as soon as he is paid the rent by the feoffee or lessee the feoffee or lessee may enter again into the land If a condition be possible in his creation and after become impossible Co. super Lit. 207. 219. 15 H. 7. 13. Dier 262. 15. When and by what meanes a condition shall be discharged and extinguished for ever or suspended for a time Or not 1. By the act of God Conditions impossible by the act of God the condition is discharged and gone for ever and the estate is absolute As if a feoffment be made to me on condition that I shall reinfeoffe the feoffor before a day or on condition that I shall appear at Westminster in the Kings Bench such a day or on condition that I shall goe to Paris about the affairs of the feoffor before such a day and before the day appointed it doth happen that I die in all these cases the condition is discharged So if the condition of a feoffment be that if the feoffor or his heirs pay ten pound to the feoffee such a day and before the day the feoffor dieth without heire in this case the condition is gone And if the condition become impossible in part onely then it is discharged for so much onely If there be Lord and tenant and the tenant doth enfeoffe a Perk. Sect. 819. stranger on condition and the feoffee die without heir so that the tenancy escheat in this case the condition doth continue and the Lord must hold it subject to the condition Albeit a condition cannot be divided by the act of the parties Co. super Litt. 215. Co. 4. 120. but it will be destroyed yet it may be divided by the act of law 2. By the Act of Law and therefore if a lease for years be made of two acres of land the one of the nature of Burrough English and the other at the Common Law on condition and the lessor having issue two sons dieth in this case albeit the condition be divided yet it is not gone but doth continue still and each of them may enter for the condition broken But if one that hath a condition knit unto his reversion grant part of his reversion to a stranger the condition is destroyed in all for it cannot be apportioned by the act of the parties as it may by the act of the law or the wrong of the lessee A condition may be destroyed in the very creation of it as if 3. By the Act of the parties Co. 2. 59. the Lord Cromwels case Dier 309. Co. super Litt. 265. 379. Co. 10. 41. one devise lands for life with expresse words of a condition and not words of limitation or words that may be so taken the remainder over to a stranger in this case the stranger cannot enter neither is the remainder good nor the condition effectuall Or it may be discharged by matter ex post facto as in the examples following If one make a feoffment in fee of land upon condition and after and before the condition broken he doth make an absolute feoffment or levy a fine of all or part of the land to the feoffee or any other by this the condition is gone and discharged for ever And yet if one grant a rent out of his land upon condition and after make a feoffment of this land this doth not extinguish the condition And if a fine in this case be levied in pursuance of a former agreement as if one by Indenture bargain and sell his land to another and in the Indenture there is a covenant that all other assurances shall be to the use of the bargainee according to the first agreement and the bargaine and sale hath a condition annexed that the bargainee shall make a feoffment of part of the land to the bargainor after the bargainor doth levy a fine to the bargainee in corroboration of the first bargain in this case the condition is not extinct but saved by the original agreement And if one make a feoffment in fee of land upon condition after before the condition broken he doth make a lease for years onely of the land or part of it to the feoffee or any other by this the condition is suspended for that time And if the feoffor after a feoffment made of land upon Co. 2. 59. Perk. Sect. 819 820. 163. Litt. Bro. Sect. 212. Co. super Litt. 219. condition enter upon all or part of the land
and be impleaded and lose it by this the condition is gone for ever And if he enter and hold the possession onely by this the condition is suspended during his possession and if he hold the possession so long that the feoffee cannot perform the condition the condition is discharged for ever And if one make a feoffment of land upon condition and after and before the condition broken the feoffee doth Co. 7. 14. 4. 52. Litt. Bro. Sect. 212. 85 Co. super Litt. 218. make a feoffment of all or part of the land to the feoffor by this the condition is gone for ever And if the feoffee make a lease for life or yeares onely of part of the land by this the condition is suspended for that time But if the feoffee make a feoffment in fee lease for life or years to a stranger this is no extinguishment nor suspension of the condition And if the condition be to pay mony or doe any such collaterall thing if in this case the feoffee make a lease to the feoffor this doth not suspend the condition If the feoffor or lessor release to the feoffee or lessee all conditions Release Perk. Sect. 823. Co. 1. 147. See Release and confirmatioÌ or all demands in the land or confirm the estate of the feoffee without condition c. by either of these means the condition is destroyed and gone for ever If one make a lease for life or years of land on condition and after grant the reversion of part of this land hereby the condition Co. 2. 59. Perk. Sect. 163. Co. 4. 119. is destroyed for ever And if he make a lease of part of it onely by this the condition is suspended A condition may be extinct or suspended by the intermariage Perk. Sect. 763. 765. 764. of the parties to the condition as if a feoffment bee made by a woman on condition to pay ten pound or on condition to infeoffe her by a day certain and before the day they two do intermary and the mariage doth continue untill after the day in this case the condition is gone And if the condition be to reenter for not payment of rent the condition shall be suspended and no rent be paid during the coverture If a lease be made for years on condition that the lessee or his Co. 4. 119. 5. 34. 2. 59. 714. Dier 309. assignes shall not alien without the licence of the lessor and the lessor licence the lessee alone to alien or licence him to alien a part of the land or licence him to alien all the land for a time or if the lease be to three on such a condition and the lessor licence one of them to alien in al these cases the condition is gone for ever If one had enfeoffed me on condition that I should pay him Perk. Sect. 766. tenne pound at Easter and before the time he had entred into Religion and made me his executor and had not been deraigned in this case the condition had been gone for ever If I be seised of land in fee and take a wife and during the mariage Perk. Sect. 822. enfeoffe a stranger on condition and die and the feoffee endow my wife of her third part in this case the condition is not destroied and yet the third part is freed from the condition but the reversion of that third part is not freed from the condition And if shee grant her estate againe to the feoffee the condition is revived So if there be Lord and tenant and the tenant make a feoffement in fee upon condition and the feoffee is attainted of felony c. so that the tenancy doth escheate in this case the condition is not gone but the tenancy is charged with it If a feoffement or lease be made rendring rent on condition Co. 3. 64. super Lit. 211. for not payment a reentry and the feoffor or lessor after the breach of the condition doth distraine or bring an assise for the Rent or doth accept the rent at another day hereby the condition is not destroied but it is discharged for that time so that the feoffor or lessor cannot take any advantage of that breach and if the act to be done by the condition be a collaterall act as not to alien or the like and the condition is broken and the feoffor not having notice thereof doth accept the rent in this case also and by this meanes the condition is not discharged If one disseise the feoffee or the heir of the disseisor or any other that hath lands by a just title and thereof enfeoffee a stranger on 4. by the Act of a stranger Lit. Sect. 476 477. Co. super Lit. 277. condition and the land is lawfully recovered from him by him that hath the title hereby the condition is destroied for ever And if a dis seisor make a feoffement in fee on condition and after the disseisee doth enter upon the feoffee on condition this doth extinguish the condition But if the disseisee release to the feoffee on condition this Release release doth not discharge the condition But if a disseisor make a lease for life the lessee for life make a feoffment in fee on condition the disseisee release to the feoffee of the tenant for life by this the condition in law is destroied And if the feoffee upon condition Perk. Sect. 823. 821. make a feoffement over without condition the disseisee release to the second feoffee by this the condition is destroied be the release before the condition broken or after And if feoffee on condition make a lease for life and the feoffor release to the feoffee on condition or lessee for life all conditions or all demands to the land by this the condition is discharged And if the feoffee on condition make a feoffement to another on condition and after the first feoffor doth enter for breach of the condition hereby the second feoffement and the condition also is gone for ever If a man seised of land in fee let it to a stranger for years and Perk. Sect. 820. one that hath no right doth out the lessee and thereof die seised and his heire is in by descent and he doth make a feoffement to a stranger upon condition upon whom the lessee for years doth enter within the terme claiming his terme in this case the lessee shall hold the land discharged of the condition And now we passe to a Covenant being another part of a Deed. CHAP. VII Of a Covenant A Covenant is the agreement or consent of two or more by Termes of the law Plow 308. 1. Covenant Quid. Deed in writing sealed and delivered whereby either or one of the parties doth promise to other that something is done already or shall be done afterwards And he that makes the covenant is called the covenantor and he to whom it is made the covenantee Covenantor Covenantee
they shall bee decayed this is a good covenant And so also it is where these or the like words be inserted amongst other covenants And that the lessee shall pay ten shillings a year rent or that the lessee shall not alien these shall bee said to bee covenants unlesse it bee in such cases where there is some other meanes to inforce the doing of the thing As if in case of the rent there bee a clause of distresse Bro. Covenant 21. 26. Co. Dier ubi supra reentry or nomine penae And in all cases regularly where words that doe beginne the sentence be conditionall and have the effect of a condition and doe give another remedy there they shall not be construed to make a covenant as in the cases of condition before And yet if words of condition and words of covenant be coupled together in the same sentence as Provided alwayes and it is covenanted or the like in such cases the words may be construed to make a covenant and a condition both If a man make a lease for life by Indenture and therein are inserted Dier 150. Co. 1. 155. these words It is provided that if the lessee die within sixty Lease years that then his executors and assignes shall have the land untill the sixty years be ended to bee accounted from the date of the IndeÌture this albeit it be not a good lease yet it is a good covenant If a man make a lease for years and warrant it to the lessee his Bro. covenant 38. descent 50. 21 H. 7. 32. heirs and assignes during the term or he that hath right to the land confirme the estate of the lessee for years with warranty in these cases howbeit this be not a warranty nor in the nature of a warranty yet it shall be construed a good covenant in law for the quiet enjoying of the thing If the Lord grant to his tenant that he will not distrain him in Perk. Sect. 69. such a part of his land for his rent this shall be taken to be a good covenant by this word grant A covenant to do anything that for the substance matter of it is 2. In respect of the matter or substance of it See West Symb. in his first part toto infra Plow 308. 302. 27 H. 8. 16. Dier 13. 324 253. 251. Fitz. Covenant 1. lawfull or not to doe any thing that for the matter of it is unlawfull is good as if the grantor covenant that he is seised or possessed of a good estate of and in the thing he doth grant and hath power to grant it That the grantee shall quietly enjoy it That it is and shall be free from incumbrances That he will make further assurance if need be That if the grantee be evicted he shall pay no rent That the grantee shall pay rent That he shall discharge all dues and save and keep harmlesse the grantor That he shall not alien the thing granted or if he doe that the grantor shall have the first refusall thereof That he shall not doe wast That he shall have houseboot hayboot That the grantor or grantee shall repaire the old housing or build new That he shall pay and discharge all rents and payments issuing out of the land That he shall not fell trees or if he doe that he shall pay to the grantor so much in money for every tree That if he fell any underwood he shall fence it That he shall make an estate of land That he shall be quit of any suit service or payment That he shall give sufficient security to I S for an hundred pound he doth owe him and all these and the like covenants are good And generally where a condition for the matter See Condition Num. 7. of it is good a covenant comprehending the same matter is good also But if the matter required to be or not to be done by Against Law See Conditions against Law Numb 7. Dier 6. the covenant be for the substance thereof unlawfull then is the covenant void and doth not bind and therefore if one covenant to kil or rob a man or the like this covenant is void So if one covenant that he will maintain another in his suits or that he will not appear in Inquests or that he will break the peace or that hee will forestall corn or the like these covenants are void So if one be tenant in feesimple of land and he covenant that he will not alien it this covenant is void So if a man be a tradesman and he covenant 18 Jac. B. R. Jolliffe versus Broad Pas 19 Jac. B. R. Tanner versus Brag. that he will not use or exercise his trade this restraint if it be absolute and continuall it is void but if it be sub modo only as that he shall not use his trade at one time or in one City or Town onely this covenant may be good So if a man be by covenant restrained to sow the land which hath been used to be sowed and this be either absolutely or sub modo i. that if hee sow it hee shall pay thus much an acre for it these covenants have been held to be void Sed quaere how the law is now for it seems the Statute of 39 Eliz. ch 2. is discontinued If A owe mony to B and B owe mony to C and Hil. 20 Jac. Co. B. Maire versus Stapleton B doth make a letter of Atturney to C to sue A at his own charge B doth covenant with C that he wil not release the debt to A in this case albeit this be maintenance in C to sue at his own charge yet this is a good covenant and not against law So also if a Deane Trin. 14 Jac. Co. B. Tailors case and Chapter or the like covenant to renue a lease contrary to the meaning of the Statute of 18 Eliz. ch 11. it seems this is a good covenant And if the thing to be done by a covenant be in the nature Impossible 27 H. 8. 27. 4 H. 7. 4. of it impossible the covenant is void And therefore it is that if a man covenant to goe to Rome in three dayes or the like the covenant is void So if a man covenant to make a feoffment to his wife this covenant is void But if a man covenant to make a good estate of land to her in feesimple or otherwise or to find her maintenance or to give her so much by the year these are good covenants And generally there where the matter being in a condition will make See Condition Num. 7. the condition void because it is against Law there it being in a covenant will make the covenant void If a lessor covenant with his lessee that he shall and may have Dier 19. 115 houseboot hayboot plowboot c. by the assignment of the Bailiffe of the lessor this is a good covenant and
yet it seems it doth not restrain the power that the lessee hath by the law to take these things without assignement But if the lessee doe covenant that he will not cut any timber or fuell without the leave or without the assignement of the lessor this is a good covenant and doth restrain him for in this and such like cases the rules is Modus conventio vincunt legem If an obligee covenant with the obligor that he will not sue him Mich. 36 37 Eliz. Co. B. Adjudge Deaux versus Jefferies 21 H. 7. 23. Release upon the obligation untill Easter following this is a good covenant but no release or suspension of the debt * Perk. Sect. 69. If there be Lord and tenant of three acres of land white acre and two others and the Lord grant to the tenant by deed that he will not distrain in white acre for his rent or services this is a good covenant but doth not determine the Seigniory If one man grant a mill within his Manor covenant for him Fitz. Covenant 5. his heirs that there shall be no other mill set up within the Manor it seems this is a good covenant If one make a lease wherein are divers covenants to bee performed Fitz. Covenant 3. on the part of the lessee and after the lessee doth covenant that if any of the covenants be broken that the lessor shall enter upon the land demised and hold it untill the lessee make him amends for the damage done by the breach of the covenant it seems this is a good covenant and that the lessor may take advantage thereof accordingly If a man seised of land in fee covenant to stand seised of it to uses Plow 307 308. 21 H. 7. 18. 27 H. 8. 16. Finchesley 49. and no estate doth rise by the covenant yet this may bee good by way of covenant and give remedy to the covenantee in an action of covenant But with this difference If the covenant be future as where one doth covenant with another that in consideration of a mariage his lands shall descend remain or revert to his sonne and heire apparent and to the heires of his body on the body of his wife in this case the covenantee may have a writ of Covenant upon the covenant For if a covenant be present as that a man and his heirs shall from henceforth stand and bee seised to such and such uses and the uses will not arise by the Law in the case in this case no action of covenant will lie upon this covenant for this action will never lie upon any covenant but upon such a covenant as is either to doe a thing hereafter or that a thing is or hath heretofore beene done and not when it is for a thing present as when A doth covenant with B that his blacke horse shall be for ever after the horse of B this is no good covenant to give the horse to B or to give him an action of covenant for him but A may keep him still notwithstanding If one mortgage upon condition to reenter upon payment of an Agree 8. Car. hundred pound at a day and the mortgagee doth covenant that he will not take the profits of the land untill default of payment this is a good covenant and the mortgagee therefore may not meddle with the profits untill the day of payment come If one make a lease for years of land by the words Demise or 5. What shall be said a good covenant in Law upon which an action of covenant may be had And what not Co. 4. 80. 5. 17. Trin. 3 Jac. B. R. Stiles case Pas 7 Jac. B. R. Winsecombes case Grant and there is not contained in the lease any expresse covenant for the quiet enjoying of the land in this case the Law doth supply a covenant for the quiet enjoying of it against the lessor and all that come in under him by title during the Term and upon this the lessee his executors administrators or assignes may have an action of covenant if he be disturbed But where there is an expresse covenant in the deed for the quiet enjoying of the land there the Law will not make this implied covenant Expressum facit cessare tacitum And therefore herein this is not like to the case Warranty where a man doth make a lease for life by the words of Dedi concessi or make a lease for life by other words reserving rent in which cases the law doth create a warranty against all men during the life of the lessor for if in these cases there be an expresse warranty in the deed yet this doth not take away nor qualifie the implied warranty but the Lessee may make use of which of them hee will if he bee ousted or evicted by one that hath an elder title A covenat in particular being one part of a deed is subject Plow 287. See in Exposition of Deeds before in toto 6. How a covenant in deed or law shall be taken and expounded And how it shall be performed to the generall rules of exposition of all parts of deeds in generall as to bee alwayes taken most strongly against the covenantor and most in advantage of the covenantee 2. To be taken according to the intent of the parties 3. Vt res magis valeat c. 4. When no time is limited for the doing of the thing it shall bee done in reasonable time and the like In cases where the covenantees have or are to have several interests Ioint and severall or estates there when the covenant is made to and with the Co. 5. 19. Dier 338. Bro. Covenant 49. covenantees cum quolibet eorum aut alterâ eorum in this case these words make the covenant severall as if one by Indenture demise black acre to A and white acre to B and green acre to C and covenant with them and either of them or covenant with them and every of them that he is lawfull owner of all these acres in this case the covenant is severall but if he demise to them the three acres together and covenant in this manner the covenant is joint and not severall And if A and B doe covenant jointly and severally in this case the covenant may bee joint or severall and the covenantors may be sued either the one way or the other at the election of the covenantee If one make a lease of land to another and covenant that hee F. N. B. 145. 1. Dier 328. 26 H. 8. 3. For quiet enjoying shall quietly enjoy it without the let of any person whatsoever or without the let of any person whatsoever claiming by or under the lessor in both these cases the covenant shall be taken to extend Mich. 7 Jac. B. R. accord in Gambles case to such persons as have title or claime some estate under the lessor for if in the first case any person
bargaine and sell land by deed indented to B and before the That the covenant or is seised of a good estate c. deed is inrolled I grant the same land to C and covenant that I am seised of a good estate of it in fee and after the deed is inrolled in this case the covenant is broken If A let land to B and covenant that he shall quietly enjoy it Mich. 8 Jac. Lams case Dier 328. F. N. B. 145. 26 H. 8. 3. Hil. 39 Eliz. B. R. Cornes case Fitz. Covenant 26. Bro. Covenant 40. without the let of any person whatsoever and A himselfe or any For quiet enjoying other person that hath any title to the land by or under him as if he make a lease of it or granta rent out of it to another or any other person that hath any title to the land albeit it be not by or under A as if A were a disseisor and the disseisee doe enter or disturbe B in all these cases the covenant is broken And so also is the law deemed to be by some in case of covenant in deed for quiet enjoying where a stranger or one that hath no title to the land doth enter or disturbe B. But otherwise it is in case of covenant in law for quiet enjoying for in this case if a stranger that hath no title to the land doth enter or disturbe the lessee this is no breach of the covenant in law And in all cases where any person hath title the covenant is not broken untill some entry or other actuall disturbance be made by him upon his title If a man make a lease of land and after make a feoffement of 20 Jac. Bro. Covenant 7. the same land and the feoffee doth disturbe the lessee in this case it hath been said this is a breach of the covenant for quiet enjoying Sed quere If a man purchase land to him and his wife and his heires in fee Hil. 20 Jac. adjudg B. R. Butler versus Lady Swinerton and then make a lease for years of it to I S and covenant for him his executors and assignes that the lessee his executors and assignes shall quietly hold and enjoy the premisses without the let of the lessor his heires or assignes or any other person by or through his or their meanes title or procurement and after the lessor doth die and his wife doth enter and disturbe in this case and by this meanes the covenant is broken And so it is also if A purchase Swans case M. 7 8 El. land of B. To have and to hold to A for life the remainder to C the sonne of A in taile and after A doth make a lease of this land to D for years and doth covenant for the quiet enjoying as in the last case and then he dieth and then C doth out the lessee in this case this was held to be no breach of the covenant So likewise if A be seised of white acre in fee and take to wife B and Dier 42. 26 H. 8. 3. Fitz. Covenant 6. 26. then make a lease of it to C with such a covenant as before for the quiet enjoying and then A doth die and after B doth recover dower by this the covenant is broken and yet if the mother of A recover dower and out the lessee contra So also if a tenant in taile doth make a lease with such a covenant and his issue doth disturbe the lessee this is no breach of the covenant And yet if the lessor be the cause of the gift in taile or procure the disturbance this may be a breach of the covenant And so also it is where a man is seised of land in fee and he doth make a lease with such a covenant and afterwards he doth die and then his heire is in ward by reason of a tenure and hereby the lessee is disturbed it seemes this is no breach of this covenant If one covenant that the wife he is about to mary shall quietly Curia B. R. pase 6. Car. Crowles case enjoy all her goods and that the covenantee shall take it into his possession and the husband doth only take the goods and keepe them in his possession this is no breach of the covenant If a covenant be for the quiet enjoying against all persons but Adjudge Hil. 38 El. Woodroffe versus Greenwood Adjudge Mich 2. Car. B. R. SaÌders case Dier 240. the King and his successors and the Patentee of the King doe disturbe this is a breach of this covenant If two make a lease and covenant that the lessee shall enjoy the land without the let of them or any other and one of them alone doth disturbe the lessee this is a breach of the covenant If a lessee grant and assigne all the land contained in his lease to A and doth covenant with him that he hath not done any act or thing by which the grant or assignment might be impaired but that the assignee his executors c. may enjoy it against all persons and before this time the wife of the lessor had recovered and had execution of a third part of this land for her dower in this case this is no breach of the covenant for the words but that c. doe referre to the former and are not absolute If A grant the Bailiwicke of W to B for life and B assigne it Adjudge Rich versus Row pasch â3 Jac. Co. B. to C for three years and after to D and C doth covenant with D that he will not doe or suffer to be done any act during the said three years by which the grant made by A may be forfeit but that after the three years ended he may enjoy it in as ample manner as C did or might have done without any act by C and after the three years ended C doth execute a Proces there and thereby incroch upon the office this is no breach of the covenant If A grant land to B and his heires rendring tenne pound rent Curia Hil. 20 Jac. Co. B. Greenway Truckfalds case To free from charges and incumbrances and B doth sell the land to C and his heires and doth covenant with C that from such a day he shall enjoy it discharged of all incumbrances and before that day a Common Recovery is had against C in which A is vouched and this is to the use of C and his heires supposing hereby the rent had been gone which is not so in this case the covenant is broken for this rent is an incumbrance If a lease be made of land for years the lessee devise it to his Co. 10. 52. wife durante viduitate and after to his sonne and he in reversion doth sell the fee to the woman during the widowhood and doth covenant that the land is discharged of all former sales rights titles charges in this case the covenant is broken at the first by
lessee and he doth not clense the ditch by the time by this the covenant is broken but if in this case the lessor doe by force keepe the lessee out of the ditch or place it selfe contra If A and B be Jointenants of a shop and A covenant with Hil. 16 Jac. B. R. Siliard versus Loc. To have liberty to goe in and out of a shop B that he and his assignes shall have free ingresse and egresse in and out of the shop and A doth appoint C his servant to enter as servant to him and to occupy in common with A and this servant doth expell the servant of B in this case this is a breach of the covenant If A covenant with B that B shall come foure times a year 3 H. 4. 8. into the house of A without being outsted by A and A when he To come into a house doth see B comming doth shut the doores and windowes and doth not suffer B to come in by this the covenant is not broken * To mary another Make a feoffment c. Tender and refusall If A covenant with B to mary the daughter of B make a feoffement 33 H. 6. 18. Bro. Covenant 3. Fitz. Barre 62. or doe any other act to C who is a stranger to the covenant and A doth tender it and offer to doe as much as doth lie in his power but the stranger doth refuse it and thereby it is not done yet this doth not excuse but the covenant is broken But if the covenant be to doe any such act to the covenantee himselfe and the covenantor tender it and the covenantee refuse it by this the covenant is performed See more in the last question and in Obligation Numb 7 8 9. and Mich. 7 Jac. Co. B. in Condition Numb 9 10. Any one that is party to the deed to whom the covenant is made 8. Who shall or may have advantage of a covenant in deed or law and bring a writ of covenant upon the breach of it Or not may take advantage of the covenant but not a stranger for if A covenant with B to doe an act to C who is no party to the deed and he doth it not B and not C must sue him upon this breach If a lease be made of land to a husband and wife for years and Co. 5. 17. Dier 257. 47 E. 3. 12. the lessor doth enter upon the land and put them both out or the one of them after the death of the other in this case both of them whiles they both live and the survivor after the death of one of them may have this action of covenant upon the covenant in law So if a wardship be granted to a woman by deed and shee take a husband and die the husband shall have advantage of this covenant in law made by the word grant if he be disturbed So if one by the words demise or grant lease land to a woman sole for years who taketh a husband and dieth in this case if the husband be disturbed he shall take advantage of this covenant in law If a feoffement be made in fee and the feoffor doth covenant Heire Dier 338. to warrant the land or otherwise to the feoffee and his heires in this case the heire of the feoffee shall take advantage of this As if A covenant with B and his heires to infeoffe B and his heires of land and B die before it be done in this case his heires shall take advantage thereof And if A B and C have lands in coparcenery and they purchase other lands in fee and they covenant each to other his heires and assignes to make such conveyance to the heire of him that shall die first of a third part as he shall devise in this case the heire not the executor shall take advanntage of the covenant Executors and Administrators shall take advantage of inherent Executors administrators Co. 5. 17. F. N. B. 145. H. Dier 112. 271. covenants albeit they be not named And therefore if A covenant to doe a thing to B and doe not name his executors or administrators and it be not done it seemes the executors or administrators of B may have an action of covenant for the not doing of it As if one covenant with I S to pay him money at Michaelmas and doe not say to his executors c. and he die before the time in this case his executor or administrator shall take advantage of this covenant and may recover the money * S e Condition Numb 12. Co. 5. 18. 9 Jac. B. R. Wilborne Bestwichs case accord Grantees of reversions shall have the like advantage against Assignees oâ Grantees Fermors by action only for any covenant or agreement contained in their lease as the lessors their heires or successors might And so also shall lessees against grantees of reversions recoveries in value except by the statute of 32 H. 8. cap. 34 And herein as in the cases of a condition before a difference is taken between covenants that are inherent and covenants that are collaterall For the covenants whereof grantees by this statute shall take advantage are inherent covenants i. such covenants as doe concerne the thing granted and tend to the supportation of it As where a lessee for life or years doth covenant with his lessor and his heires to keep the houses demised in good reparations or the like and after the lessor doth grant away the reversion of all * Mich. 8 Jac. Pimes case or part of the houses to I S in this case I S shall take advantage for any breach of the covenant in his time but not for any breach before the time the reversion was granted But if the lessee doth covenant with his lessor and his heires to pay him a summe of money or make him a feoffement or the like and then the lessor doth grant the reversion to I S in this case I S shall not take advantage of this covenant And yet the executors or administrators of the lessor shall take advantage of this covenant Regularly every assignee of the land or thing demised shall take Co. 5. 17. advantage of inherent covenants as if a covenant be to have Estovers to burne in the house demised or to have timber to repaire or if the covenant be that the lessor or lessee shall repaire or the like And therefore of these assignees in deed and in law assignees of assignees in infinitum shall take advantage and assignees of executors or administrators Tenants by Statute or Elegit or after a sale upon a Fieri facias a husband in the right of his wife any one of these and any other that shall come lawfully to a terme unto which such a conveant is incident albeit he be not named yet may he take advantage of it If a lease for years be made to I S by the words Demise or Co. 4.
80. Dier 257. Fitz. covenant 30. Grant and the lessee assigne this over to I D in this case I D may take advantage of the covenant in law and bring an action against the lessor if he be disturbed If a lease for years be made of land the lessor doth covenant Co. 3. 63. F. N. B. 145. with the lessee and his assignes to doe or not to doe something in this case an assignee by word or an assignee by deed may take advantage of this covenant If two coparcenours make Partition of land and the one of them Co. super Lit. 385. Co. 5. 23. 18. doth covenant with the other to acquite her and her heires of a suit that issued out of the land and the covenantee doth alien her part to a stranger in this case the alienee shall have the same advantage for acquitall of the land as the covenantee had So if A be seised of the Manor of B whereof a chappell is parcell and a Prior with the consent of his covent had covenanted with A and his heires Lords of the Manor to celebrate divine service in the chappell and after A had sold the Manor in this case the vendee or assignee of the Manor should have had the same advantage of the covenant the vendor had But if the Lord had sold the chappell the assignee of the chappell should not taken advantage of the covenant And if a covenant be to say divine service in the chappell of a stranger in this case the assignee of the Manor in which the chappell is shall not take advantage of the covenant Regularly all those that doe seale and deliver the deed and are 9. Who shall be bound and charged by a covenant And against whom a writ of covenant doth lie And where Or not Co. 5. 16. 17 18. named and bound by the expresse words of the covenant whether the covenant be collaterall or inherent are bound by the covenant contained in the deed And therefore if heires executors administrators or assignes be named in the covenant for the most part they are bound by the covenant And in all cases of inherent covenants also where a man doth covenant for himselfe only and doth not name his executors and administrators or either of them they are bound and may be charged by the covenant notwithstanding Executors Administrators And in some cases the law is so also for collaterall covenants And in most cases of inherent covenants that tend to the support of the thing granted in respect of which it is presumed the lessor tooke the lesse for the land such as have the land albeit they be neither executors nor administrators or either of them but assignees c. shall be charged by the covenant though they be not named for these covenants are said to run with the land If a feoffement or lease be made to two or to a man and his Co. super Lit. 231. Dier 13. Bro. covenant 6. Det. 80. wife and there are divers covenants in the deed to be performed on the part of the feoffees or lesses and one of them doth not seale or the wife doth or doth not seale during the coverture and he or she that doth not seale doth notwithstanding accept of the estate and occupy the lands conveyed or demised in these cases as touching all inherent covenants as for payment of rent and the accessaries thereof as clauses of distresse of reentry of nomine poene reparations and the like they are bound by these covenants as much as if they doe seale the deed So if a lease be made to A for years or life the remainder to I S in fee and there is a rent reserved or there be divers covenants on the part of the grantees and I S doth never seale the deed or counter part yet if in this case he accept the estate after the death of A he must pay the rent and performe all the covenants that are inherent So also if there be covenants in the Kings Patent to be performed on the part of the Patentee As Experientia Pasc 14. Jac. B. R. Bret Cumberlands case if there be this clause in the Patent and that I S the Patentee shall repaire the house when it is decayed in this case the Patentee is bound by this covenant and all such like covenants But Quere of collaterall covenants in the first cases for therein it seemes the feoffee or lessee is not bound And yet it is said that if an indenture Co. super Lit. 231. be made between A of the one part and B and C of the other part and therein there is a lease made by A to B and C on certain conditions and B and C are bound to A by the indenture in twenty pound to performe the conditions and B only doth seale the deed and not C yet in this case if C accept of the estate he is bound by the covenants and one of them cannot be sued without the other whiles they are both living Qui sentit commodum sentire debet et onus Et transit terra cum onere If a man covenant for him and his heires to doe any thing whatsoever Co. 5. 17. Bro. covenant 38. 32 H. 6. 32. Dier 257. Fitâ covenant 31. hereby his heires are bound But otherwise except the Heire heires be bound by the deed by expresse name an heir shall scarcely be bound or charged in any case by a deed And therefore it is that if the lessee for years be ousted by any other but the heire himselfe no action of covenant will lie against the heire unlesse there be an expresse covenant wherein and whereby the lessor and his heirs are bound But if he be ousted by the heire himselfe it seemes an action of covenant will lie against him And yet if he be ousted by an elder title from the lessor coÌtra for in this case the heir shal not be charged If a man doe covenant for himselfe only to pay money build a 10 H. 7. 10. Dier 19. 14 Bro. covenant 50 Dier 114. Executors Administrators house for quiet enjoying or the like and he doth not say in the covenant his executors Descent administrators c. yet hereby his executors administrators are bound shal be charged And yet if a lessee for years covenant for himselfe to repair the houses demised omitting other words it seemes in this case he is bound to repaire only during his life and the executors or administrators are not bound So if a lessor covenant for himselfe only to discharge the lessee of all quit rents out of the land it seemes this covenant is only personall and shall bind the covenantor only during his life But if in these cases these words during the terme be added in the covenant as if a lessee covenant for himselfe to repaire the houses during the terme or the lessor covenant for himselfe to discharge the lessee of all quit
rents during the terme in these cases it seemes the executors and administrators also will be charged after his death If a lessee be ousted by one that hath title it seemes an action Dier 257. of covenant will lie for this ouster against the executor or administrator upon the covenant in law if he were put out in the life time of the lessor and not otherwise for if there be tenant for life the remainder in fee to another and the tenant for life by the words demise or grant doth make a lease for years and dye and after he in the remainder doth enter and put out the lessee for years in this case he cannot upon this covenant in law charge the executors or administrators of the lessor But upon an expresse covenant for quiet enjoying he may Assignees or Grantees In some cases an assignee shall be charged though he be not named Co. 5. 16. and in some cases shall not be charged though he be named and in some cases he shall be charged when he is named as when the covenant doth extend to a thing in esse parcell of the demise there the thing to be done is appurtenant and quodammodo annexed to the thing and shall bind the assignee though he be not expresly named as a covenant to repaire c. But if the covenant be annexed to a thing not in esse before but de novo to be erected on the thing as to set up a new house or the like in this case it will not bind the assignees unlesse they be named in the covenant And if the covenant be to doe a thing meerly collaterall in that case it will not bind the assignees albeit they be named expresly Also when a contract is personall only and a man doth bind himselfe and his assignes his assignes shall not be bound hereby as if one demise sheep or other stock of cattell or any other personall goods for any time and the lessee doth covenant for him and his assignes at the end of the terme to deliver them in as good plight as they were at the âime of the demise or such a price for them and the lessee assigne them in this case this covenant will not bind the assignee but the executors and administrators of the first lessee are bound hereby So if one demise a house and land Executors with a stocke or summe of money for years rendring rent and the lessee doth covenant for him and his assignees to deliver the money at the end of the terme in this case an assignee shall not be bound by this covenant as the executors and administrators of the lessee shall If a lessee covenant to repaire the houses demised or to discharge Co. 5. 17. Dier 27. Bro. descent 50. the lessor de omnibus oneribus circa terram or the like in these cases and such like albeit assignees be not named in the covenant yet assignees and assignees of assignees in infinitum al others that shal come to the land by the act of law or by the act of the parties shall be bound and charged by this covenant If a lessee covenant for him and his assignes to build a new house upon the land demised within seven years and the lessee assigne it Co. 5. 17. over in this case the assignee is chargeable But if a man covenant for him and his assignes to make a feoffment obligation or the like in this case the assignee shall not be charged albeit he be named And if the lessee covenant for himselfe or for himselfe his executors and administrators only to build a new house upon the land demised and the lessee assigne over the land in this case the assignee is not bound by this covenant If a lease be made rendring rent and if it be arere that the lessee Thins case vers Cholms ley Trin. 36 Eliz. C. B. his executors and assignes shall forfeit three shillings four pence nomine poenae and the lessee assigne the terme in this case it seemes the assignee shall be charged with the nomine poenae And in all the cases before where a covenant is broken an action Bro. covenant 32. of covenant may be brought But herein note that howsoever in Note divers of the cases before assignees are chargeable upon a covenant yet the lessee himselfe is not hereby discharged but the lessor or grantee of the reversion hath election to charge which of them Election he will And therefore if a lessee covenant for him and his assignes to repaire and the lessee assigne in this case the lessor may have his action of covenant against either of them And if a lessee covenant Hil. 16 Jac. B. R. Curia Bret versus CumberlaÌd for him his executors administrators and assignes to repaire the houses demised and he in reversion doth grant away his reversion and the lessee assigâe his estate in this case albeit the grantee of the reversion have accepted the rent of the assignee of the terme yet he may still have an action of covenant against the executor of the lessee upon this covenant So if a Patentee covenant for him and his assignes to repaire and he assigne the King may have his action against either of them If A and B doe covenant for themselves jointly without more Co. 5. 23. words the covenant is joint and one of them cannot be charged without the other But if they covenant for themselves severally the covenant is severall and they may be sued apart And if they covenant jointly and severally then the covenant is joint and severall and they may be sued either way at the election of the covenantee Where the deed it selfe wherein the covenants are contained Dier 20. Co. 5. 23. 10. Wââân a covenant shall be said to be gone and discharged And when not And how or the estate on which the covenants as accessary to the principall doth depend is gone and determined there regularly the covenants are gone also And therefore if a lease for life or years be surrendred whereby the estate is gone or a deed become void by rasure or the like and there be covenants contained in the deed by these meanes the covenants are gone also But this surrender doth not discharge the breach of covenant which was before the 40 E. 3. 27. Bro. Surrender 47. Covenant 41. Hil. 4 Jac. B. R. Moile vers Austin surrender For if a Parson lease his glebe for years and after resigne whereby the lease for years doth become void in this case the covenants of the lease as to the time before the resignation shall be said to be in force still Where a covenant is become impossible to be done by the act of God as where one doth covenant to serve another seven Co. 1 98. Plow 286. years and he die before the seven yeares be expired by this the covenant is discharged Where there is an expresse covenant in a deed
taile in fee with warranty and die without issue this is collaterall to the middle sonne In the same manner it is in case where the middle sonne hath the same land by force of the same remainder because his elder brother made no discontuance but died without issue of his body and after the middle brother doth make a discontinuance with warranty c. and dieth without issue this is a collaterall warranty to the youngest sonne And in this case if any of the sonnes be disseised and the father that made the gift c. releaseth to the disseisor all his right with warranty this is a collaterall warranty to the son upon whom the warranty doth descend If lands be given to A and the heirs of his body and Co. 8. 52. Litt. Sect. 713. for want of such issue to E his sister and the heires of her body and A doth make a feoffement with warranty and die without issue having two sisters E and S this is a collaterall warranty to E. If lands be given to a man and the heires of his body begotten Litt. Sect. 741. who taketh a wife and hath issue a son by her and the husband doth discontinue the taile in fee and dieth and after the wife doth release to the discontinuee with warranty and dieth and the warranty doth descend to the sonne this is collaterall to him If tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile doth release to the disseisor with warranty in fee and dieth without ifsue and the tenant in taile hath issue and dieth this is collaterall as to the issue If tenant in tail have issue two daughters and die and the elder enter into all to her own use thereof make a feoffment in fee with warranty and die without issue this warranty as to the other sisters part is collaterall but not as to her own If Co. super Litt. 373. the husband and wife tenants in speciall tail have issue a daughter and the wife die and the husband by a second wife have issue another daughter and discontinueth in fee and dieth and a collaterall Auncestor of the daughters release to the discontinuee with warranty and dieth and the warranty descend upon both the daughters this is a collaterall warranty to them If lands be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the father die and the brother release with warranty and die without issue this is collaterall to the daughter If tenant in taile make a lease for life the Litt. Sect. 738. remainder to another in fee and a collaterall Auncestor doth confirm the estate of tenant for life with warranty and die and after the tenant in taile die having issue this is a good binding collaterall warranty during the estate for life And in all these and Litt. Sect. 712. Co. super Lit. 374. Co. 10. 96. Stat. of Glouâ ch 3. Co. super Litt. 365. Stat. 11 H. 7 chap. 20. such like cases of a collaterall warranty whether the right bee the right of an estate taile or the right of an estate in fee simple that is to be barred it is a bar without any assets for in this case the rule is That a collaterall warranty is a barre to him that demandeth fee simple and also to him that demandeth fee taile without any other descent of lands in fee simple so that the heir on whom the same warranty is descend can never have the land so warranted whiles the warranty doth continue in force but is bound thereby except it be in some speciall cases restrained by Act of Parliament as where the husband alone during his wives life or after her death being tenant by the curtesie make a feoffement by fine or deed of his wives land which shee hath by descent or purchase with warranty this will not barre her heire without assets of other lands in fee simple descended from the same Auncestor that made the warranty Or where a wife after her husbands death shall alone or with her succeeding husband alien release confirm or discontinue with warranty the land she holdeth in dower or in taile of the gift of her former husband or any of his Auncestors this warranty is voidable and will not binde with assets If the son purchase land c. and after let it to his father or any Litt. Sect. 699 700 701 702. Finch 82. Co. super Litt. ãâã 10. What shall be said a warranty that doth begin by Dissââsin And wâat such a warranty doth work other Auncestor for years or at will and he by his deed doth infeoffe a stranger and that with warranty and after dieth whereby the warranty doth descend upon the heire this warranty doth commence by disseisin So if tenant by Elegit Statute Merchant Guardian in Chivalry or Soccage or because of Nurture make a feoffement with warranty and this warranty doth descend on his heir this warranty doth commence by disseisin So if one that hath no right at all enter into my land and make a feoffement to another with warranty So if one Coparcenor enter into the whole land and make a feoffement in fee with warranty this warranty as to the one moity doth begin ây disseisin So if father and sonne purchase lands to them jointly c. and the father alien the whole to another with warranty c. and after the father dieth this warranty as to the one moity doth beginne by disseisin But if the purchase bee to them two and the heires of the sonne it is otherwise for if the sonne enter in the life time of the father the warranty is avoided for all but if hee doe not enter then as to the fathers moity it is a collaterall warranty And if the purchase be to the father and son and the heirs of the father and the father alien with warranty c. in this case the warranty is good for the whole If the father be tenant for life the remainder to his son and heir Co. 5. 80. super Litt. 366. 367. in fee and the father by covin and consent of purpose to bar the heir by a collaterall warranty maketh a lease for years to the end that the lessee should make a feoffment in fee that the father may release to the feoffee with warranty and all this is done accordingly and the father dieth and the warranty doth descend to the sonne in this case the warranty shall be said to beginne by disseisin But if the father in this case make a feoffement in fee with warranty and die this is a good warranty to binde the sonne albeit it be done of purpose to bar him So if one brother make a gift in taile to another and the uncle doth disseise the donee and infeoffeth another with warranty the uncle dieth and the warranty descendeth on the donor and
never out of the possession If the King have any possession of the land by wardship or otherwise Prerogative Perk. Sect. 219. Bro. Feoffment 3. 17. 21 H. 7. 7. 2 H. 6. 5. 1 H. 7. 5. Stamf. prer Regis 40. the owner of the land can make no feoffement of it And therefore if the King be entituled to land by wardship or primer seisin after office found after the death of an Auncestor of one of his tenants in this case it is said the feoffement of the heire is void and passeth nothing for the King is still in possession And if it be before office found it will be all one for the office shall relate to the death of the Auncestor And yet in these cases the feoffment is good against the heire himself and all others besides the King If the heir before office found enter and make a feoffment and then the King doth pardon the feoffee in this case the feoffement is good And yet such a feoffement after office with a pardon is void And the like law is if the entry bee before office and the pardon after the office for this is void also But if a man bee outlawed for debt or trespasse and thereupon the Outlawed persons King hath the profits of the lands in this case the owner may make a feoffment of this land notwithstanding Divers persons cannot make a feoffement but it must be by deed Fitz Faits Feoffements 32. See Grant Numb 4. 4. In respect of the manner of making of it as corporations and such like Also divers things cannot be granted by a feoffement but the feoffement must be made by deed for a feoffement cannot be made of a reversion of land but it must be by Reversion deed But a lease may be made of land to one for life the remainder to another in fee and this may be done without any writing by word only Also a feoffment may be made of the moity third or 4th Litt. Sect. 60. super Litt. 190. part of a manor or of a peece of land without deed And yet if one be seised of a manor whereunto an Advowson is appendant and he make a feoffment of three acres parcell of the manor together with the Advowson to two men Habendum the one moity with the Advowson to one of them and the other moity to the other in this case the feoffment cannot be well made unlesse it by deed If a lease be made for five years on condition that if the lessee pay Litt. Sect. 250. to the lessor within the two first years ten pound then that he shall have the land to him and his heires or otherwise but for five years in this case if livery of seisin be made to the lesse before his entry this is a good feoffment Et sic de similibus Every feoffment also whether it be made by deed or without Livery of seisia deed must be made with livery of seisin and this livery of seisin must Lit. Sect. 59. 66. Co. super Lit. 52. Doct. Stud. 13. be made according to the rules of livery and seisin herein after laid downe for this is of the essence of a feoffment and a feoffment is not accounted perfect untill livery of seisin be made for untill then the feoffee hath only an estate at will in the land and the feoffor may put him out when he will And if either of the parties die before the livery of seisin be made the feoffment is void and no warrant of atturny to make livery can be executed after the Equity death of the feoffor or feoffee neither is there any remedy in this case to get the assurance to be made perfect but in a Court of Equity But in case where there are many feoffees there the death of one or some of them will not hinder the livery but it may be made to him or them that doe survive we must see therefore in the next place what this livery of seisin is Livery of seisin or giving of possession is a solemnity or overt 5. Livery of seisin Quid. New terms of the law ceremony required by law and used for the passing of lands or tenements corporall as an evidence or testimoniall of the willing departing by him that makes the livery from the thing whereof livery is made and the willing acceptance thereof by the other party And West 2. part Symb. Sect. 251. Co. super Lit. 48. this is as ancient as a feoffment for no feoffment is made without livery of seisin albeit livery of seisin be sometimes made upon other conveyances And it was first invented as an open and notorious act to this end and that by this meanes the country might take notice how lands doe passe from man to man and who is owner thereof that such as have title thereunto may know against whom to bring their actions and that others may know that have cause of whom to take leases and of whom to require wardships c. And by this means if the title come in question the Jury can the better tell in whom the right is And of this livery of seisin there are two kinds 1. A livery in deed 2. A livery in law called a livery Co. super Lit. 48. 6. Quotuplex within view The livery in deed is when the feoffor donor c. by himselfe or another taketh the ring of the doore of the house or a turfe or twig of the land and delivereth the same upon the land unto the feoffee donee c. in the name of seisin of the house or seisin of the land And this is done sometimes by the parties themselves if they be present sometimes in their absence by their atturnyes or procurators The livery in law is where the feoffor saith to the feoffee being in view of the land I give you yonder house to you and your heires goe enter into the same and take possession thereof accordingly or the like Because this manner of conveyance by feoffment is so ancient Bio estates 4. Plow 28. 29. 7. The nature and operation of it therefore this ceremony being inseparably incident to a feoffment is much favoured in law And therefore it is expounded and taken strongly against him that doth make it and beneficially for him to whom it is made And for this cause it worketh not only to transmit the present estate but also to barre all present and future rights and possibilities If therefore one make a lease for life to I S the remainder to the right heires of I D which I D is then living and give livery of seisin according to the deed in this case albeit he in remainder be not capable of this remainder yet by the livery it shall passe out of the feoffor and shall be in Abeyance during the life of I S. So if a feoffment be made to one heredibus without the word Suis and
of the tenant yet the bargainee shal have benefit of a condition as an assignee within the Statute of 32 H. S. And it seems he may vouch by force of a warranty annexed to the estate of the land because he is in partly in the per and partly in the post All things for the most part that are grantable by any other way See West Symb. tit Bargain and Sale 4. Of what things a bargain and sale may be Or not from one man to another are grantable and may be transferred by way of bargain and sale from one to another And therefore lands rents advowsons commons tithes profits of Courts and the like may be granted by way of bargain and sale in fee simple fee tail for life or years And all manner of goods and chattels as leases for years wardships cattell corn housholdstuffe wood trees merchandises and the like are grantable by way of bargain and sale But it seems Estovers and such like things de novo and that 6 Jac. B. R. Adjudged 21 H. 6. 43. per Yelverton have not essence before are not grantable by way of bargain and sale as they are by way of grant or lease and therefore that a bargain and sale of such things is void If any estate of freehold or inheritance be made of land by way 5. What shall bee said a good bargain sale And what things are requisite to make such a bargain and sale Or not Of lands of bargain and sale the same must be made by a writing or deed Stat. 27 H. 8. ch 16. indented and cannot be made by word of mouth onely as a lease for years whether it be created de novo or be in esse before may be But lands in London by a speciall Proviso within the Statute may be bargained and sold by word of mouth without any writing 2. The very words Bargain and Sell are not necessary to a good bargain sale for words equivalent will suffice to make land Co. 8. 94. 7. 40. 2. 36. passe by way of bargain sale And therefore if a man seised of land in fee do by deed indented and by the words alien or grant sell them to another or if such a man covenant to stand seised of his land to the use of another and these deeds are made in consideration of money and the deeds be after inrolled these will amount to good bargains and sales And if a man by a deed indented and inrolled in consideration of ten pound paid to him by the words demise and grant passe his lands to another for twenty years this is a good bargain and sale 3. There must be some good consideration Co. 1. 176. given or at least said to be given for the land And therefore if A for divers good considerations a Ward versus Lambert Pasche 37 Eliz. or in consideration that the bargainee is bound for the bargainor and for divers other good causes b 41 El. Adjudged or for divers great and valuable considerations bargaine and sell his land by deed indented and inrolled to B and his heirs nihil operatur But if in these cases in truth there be money or other good consideration given albeit it be not expressed upon the deed Dier 169. the bargainee may aver it and being proved the bargain will bee Averment good And if the deed make mention of money paid as in consideration of an hundred pound or the like and in truth no money is paid yet the bargain and sale is good And no averment will lie against this which is expresly affirmed by the deed And if the deed Dier 90. mention and say for a certain sum of money or for a certaine competent sum of money these are good considerations 4. There needs no livery of seisin or atturnment in this case And therefore Co. 7. 40. 8. 94. if one bargain and sell a reversion by deed indented and inrolled for good consideration the reversion will passe without any atturnment of the tenant And if it be onely a lease for years of a reversion that is granted there needs no atturnment nor inrolment And in case of a bargaine and sale the bargainee is in actuall possession before any entry so that the lessee may atturn to the grant of the reversion as hath been ruled in Mittons case Mich. 18 Jac. in Cur'Ward by the two Chief Justices and the whole Court And yet I think he hath not such a possession as to bring any possessory action for trespasse or the like untill an actuall entry for where the Statute of 27 H. 8. of uses provides that the actuall possession shall be adjudged according to the use yet it ought to have a circumstance Co 5. 112. which is requisite by the common law viz. an actuall entry in deed But there must be an inrolment of the deed in case Stat. 27 H. 8. ch 16. Pl. 307. where any freehold doth passe for it is provided That no lands Inrolment Where necessary And how it must be done except in some Corporations only shall passe from one to another by any deed whereby any estate of inheritance or freehold shall be made or take effect in any person or persons to be made by reason only of any bargain and sale thereof except the same be made and done by writing indented sealed and inrolled in one of the four Courts the Chancery Kings Bench Common Pleas or Exchequer or else within the same County or Counties where the lands so bargained and sold doe lie before the Custos Rotulorum and two Justices of the Peace and the Clerk of the Peace of the same County or Counties or two of them at the least whereof the Clerk of the Peace to be one And the same inrolment to be within six moneths next after the same writing or deed is dated And this Statute was made in the same Parliament wherein the law of transferring of uses into possession was made to the end that mens lands might not suddenly and privately passe upon payment of a little money in an alehouse or the like And herein these things must be observed 1. The inrolment upon such a deed as to make this estate to passe must be in parchment for an inrolment in paper is not good 2. The deed inrolled must be indented for if it be but poll the estate will not passe 3. It must be inrolled within six moneths of the purchase or sale * Co. 5. 1. And this account must be 1. From the date and not from the time of the delivery of the deed 2. After twenty eight days to the moneth 2 Dier 218. Adjudge Franklin Garters case Mich. 37 38 Eliz. 4 Dier 218. and no more 3. The day of the date to be taken exclusive and for none of the days of the six moneths And yet if a deed be inrolled the same day it bears date it is good 4.
party grantor shall have relation to the Co. super Lit. 310. 11. How an atturnment shall relate time of the grant to make the thing to passe out of the grantor ab initio albeit it be made many years after the grant and therefore all acts done by him after the time of the grant and before the atturnment to the prejudice of his own grant as granting of rents entring into Statutes or the like are void as to the land to charge it and hence it is that if a reversion be granted to an alien and before the atturnment of the tenant he is made denizen in this case the King upon office found shall have the land and yet it shall not so relate as to make the tenants chargeable to the grantee for any mean arrearages or for any wast in the lands from the time of the grant to the time of the atturnment But in respect of a stanger it shall not relate at all And therefore if two deeds be of a reversion at severall times and hee whose deed was made last gets atturnment first the reversion doth passe to him and though the other get atturnment afterwards yet this will not help him by relation and albeit the former grant of the reversion be in fee and the latter for life onely yet the law will be allone in both case And now having done with this we come to a Lease CHAP. XIV Of a Lease A Lease doth properly signifie a demise or letting of lands rentcommon 1. Quid. Terms of the Law Co. super Lit. 43. 45. Justice Dodridge Treatise called The use of the Law Bro. Leases 60. 437. Plow 421. 432. Dier 125. or any hereditament unto another for a lesser time then he that doth let it hath in it For when a lessee for life or years doth grant over all his estate or time unto another this is more properly called an Assignment then a Lease And this albeit it may be made and done by other words yet it is most commonly Assignement and aptly made by the words Demise Grant and Let. And in this case he that letteth is called the Lessor and he to whom it is let Lessor Lessee the Lessee This word also is sometimes although improperly applied to the estate i. the title time or interest the lessee hath to the thing demised and then it is rather referred to the thing taken or had and the interest of the taker therein but in this place it is applied rather to the manner or means of attaining or coming to the thing letten And in this sense it is sometimes made and done by record as fine recovery c. and sometimes and most frequently 2. Quotuplex by writing called a Lease by Indenture albeit it may be made also by deed poll And sometimes also it is as it may bee of land or any such like thing grantable without deed for life or never so many years by word of mouth without any writing and then it is called a Lease-paroll And hence comes the division of a Lease-paroll and a Lease in writing And all these ways it may be made either for life i. for the life of the lessee or another or both or for years i. for a certain number of years as ten an hundred a thousand or ten thousand years moneths weeks or days as the lessor and lessee doe agree And then the estate is properly called a Term of years for Term of years this word Terme doth not onely signifie the limits and limitation of time but also the estate and interest that doth passe for that time These Leases also for years doe some of them commence in presenti and some in futuro at a day to come and the Lease that is to begin in futuro is called an interesse termini or future interest Interesse termini or Future interest Or at will i. when a Lease is made of land to be held at the will and pleasure of the lessor or at the will and pleasure of the lessor and lessee together and such a lease may be made by word of mouth as well as the former Regularly these things must concurre to the making of every See Grant Numb 4. Co. 6. 36. 34 35. 1. 154 155. Co. super Litt. 45 46. Plow 273. 523. good lease 1. As in other grants so in this there must be a lessor 3. Things necessarily required in every good lease and he must be a person able and not restrained to make that lease 2. There must be a lessee and he must be capable of the thing demised and not disabled to receive it 3. There must be a thing demised and such a thing as is demisable 4. If the thing demised be not grantable without a deed or the party demising not able to grant without deed the lease must be made by deed And if so then there must be a sufficient description and setting forth of the person of the lessor lessee and the thing leased and all necessary circumstances as sealing delivery c. required in other grants must be observed 5. If it be a lease for years it must have a certaine commencement at least then when it comes to take effect in interest or possession and a certain determination either by an expresse enumeration of yeares or by reference to a certainty that is exprest or by reducing it to a certainty upon some contingent precedent by matter ex post facto and then the contingent must happen before the death of the lessor or lessee 6. There must bee all needfull ceremonies as livery of seisin atturnment and the like in cases where they are requisite 7. There must be an acceptance of the thing demised and the estate by the lessee But whether any rent be reserved upon a lease for life years or at will or not is not materiall except only in the cases of leases made by tenant in tail husband and wife and Ecclesiasticall persons Of which see infra For the ability and capacity of the lessors and lessees and what 4. What shall bee said a good and a sufficient lease for life or years Or not shall bee said a good lease or not in respect of the ability of the lessor and the capacity of the lessee and the description of their persons the nature and description of the thing demised and what mis-recitall or misnosmer will hurt or not See Grant Num. 1. In respect of the persons of the lessor and the lessee the thing leased the estate property or poslession of the lessor therein 4. and infra Numb 5. 6 7. Leases for life or years or at will may be made of any thing corporall Bro. Leases 23. or incorporall that lieth in livery or grant Also leases for years may bee made of any goods or chattels See for this Grant Numb 4. A man seised of an estate in fee simple in his own right of any Co. 7. 11.
1. 44. Plow 524. lands or tenements may by deed or writing in the country or without writing by word of mouth make a lease of it for what lives or years he will And hee that is seised of an estate in tail of any lands or tenements may make any lease out of it for his owne life but not longer unlesse it be by fine or recovery or it be such a lease as is warranted by the Statute of 32. H. 8. whereof see more infra And he that is seised of lands or tenements of any estate for his own or anothers life may make what lease for years he will of it and it will be good as long as the lease for life doth last And hee that is possessed of lands or tenements for years may make a lease of it for all or part of the years and these are good leases The tenant for life or years may also assigne over all their estates if they please And if such tenants make leases for longer time as if lessee for years make a lease for life it seemes by this the land will passe for life if the term of years last so long But if he give livery of seisin upon it as he must to make the lease for life good this is a forfeiture of the estate for years Forfeiture Infant If an infant be seised of land in see simple and he make a lease 9 H. 7. 24. 18 Ed. 4. 2. Plow 545. for years of it rendring no rent this lease is void But if there be a rent reserved upon the lease then the lease is but voidable and may by the acceptante of the rent by the infant after his full age bee Acceptance made good Jointenants tenants in common and parcenours may make leases Litt. cap. tenant in common F. N. B. 62. G. Iointenants Tenants in common for life or years of their own parts and purparties at their pleasures and these leases will binde their companions And one coparcenour or tenant in common may make a lease of his part to his companion if he will If a feoffment be made upon condition and before the time of performance of the condition the feoffor and feoffee doe joyne to make a lease for life or years of the land this is a good lease A man that hath an estate in land to him and his wife and his Bro. Leases 58. heirs may make what lease he will of the land and this will be good against all men but his wife onely and that for her time If there be lessor in fee and lessee for ten years in this case they Co. 10. 49. two may joyn together and make a lease for lives or for any terme of years and this is good A disseisee cannot make a lease of that land whereof he is disseised Plow 133. untill he make his entry or recover the possession of the land again So neither can a woman that hath recovered the third part Bro. Scire facias 36. of her husbands land in a writ of dower make any lease of it before she be in possession by execution And yet if a lease be made Co. super Lit. 46. to me for years I may make a lease of part or an assignement of all the term before I have made my entry into the land demised So if the father die and the son make a lease to a stranger of the land Plow 137. 142. descended to him before his entry this is a good lease but if a stranger had entred and abated into the land and then the sonne had made the lease contra In some cases also such persons as are not seised in see simple c. Co. 5. 5. Dier 357. Co. 62. 8. 70. 1. 175. See in Leases made by tenant in tail infra nor able to derive such estates for life or years out of their owne estates By speciall power or proviso to make leases may lawfully notwithstanding make such leases for life c. And this is sometimes by some speciall Act of Parliament enabling them so to doe And hence it is also that a tenant in tail may make leases for three lives or twenty one years And sometimes it is by some speciall power or authority that is given or reserved by and to the party himself that had the see simple in him or given to some other to doe it in his name and leases thus made may bee good And therefore if any Act of Parliament enable a tenant in tail or a tenant for life to make leases for three lives or twenty one years leases that are so made in pursuit of that authority are good And if a man be seised of land in fee and convey it to the use of himself for life or in tail with divers remainders over with a proviso that it shall be lawfull for him or any such tenant in tail to make leases for twenty one years in this case he or they may make such leases and they will be good But in both these cases care must be had to pursue the authority strictly i. that the leases made be according to the power and direction given by the statute or proviso for if it differ and vary ever so little from the sense and meaning of the same the lease will not be good And therefore in the case before of a power to make leases for twenty one years if the party make more leases for twenty one yeares at one time then one they are all void but the first because it is against the intent of the parties though it be not against the words And so if the power be to make leases for three lives he cannot by this make a lease for ninety nine yeares if three lives so long live But if the power be thus Provided c. that he may make any lease in possession or reversion so as it doe not exceed the number of three lives or twenty one years in this case a lease may be made for ninety nine years if three lives live so long But where uses are raised by way of covenant and in the deed there is a proviso that the covenant or for divers good considerations may make leases for years in this case this power is void and therefore no lease can bee made hereupon neither will any averment help in this case And if a man have a Averment letter of Atturney or other authority to make leases for another and doe make them accordingly such leases are good But herein also caution must be had of three things 1. That the authority be Co. 9. 76. good 2. That he that is the Deputy or Atturney doe pursue the authority strictly 3. That he doe it in the name of his master and not in his own name A lease made for a thousand days moneths or weeks is as good Co. 6. 72. 14 H. 8. 13. 2. In respect of the manner of the agreement
and the words whereby the same is set down And what words will make an estate for life or years for so long as it endureth as a lease for an hundred or a thousand years So a lease for half a year or a whole year is good So if Plow 422. a lease be made from day to day or from weeke to weeke for four years this is a good lease for four years Et sic de similibus So if Plow 272. Bro. Leases 49. one make a lease for ten years so from ten years to ten years during an hundred years or untill an hundred years are incurred this is a good lease for an hundred yeares So if one make a lease from Dier 24. three years to three years during the life of I S in this case if livery of seisin be not given this is a good lease for sixe years but if livery Livery of seisin be given it is a good lease for the life of I S. And if a lease be made from my death untill Anno Domini 1650 this is a good lease If I say to I S being in my house Here I S I demise to you my Co. 6. 26. Livery of seisin house and land so long as I live this is a good lease for life to him if livery of seisin be made Et sic de similibus If one make me a lease of land until an hundred pound be paid me 21 Ass pl. Livery of seisin make livery of seisin upon it this is a good lease for life determinable upon the payment of the hundred pound But if no livery be made it is no good lease If one make a lease to me for my life and for four ten or twenty Bro Leases 27. 51. Executors yeares after this is a good lease for life first if livery of seisin bee made and then a good lease for years for so many years as are agreed upon afterwards which my executors shall have And if no livery of seisin be made yet it seems it is a good lease for so many years after my death If an Indenture of lease be made between A of the one part and Co. 1. 153. Dier 253. B C and D of the other part and therein A doth demise land to B To have and to hold to him for eighty years if B shall live so long and if he die or alien the premisses within the term then that his estate shall cease and then the lessor doth grant the land to C for so many years of the said term as shall be then to come after the death or alienation of B if he live so long in this case this is a good lease to B for so many years as he shall live of the eighty years but the lease to C after is not good for the terme is ended by the death of B but if the words of the second demise be To have and to hold during the residue of the eighty years and not during the residue of the term in this case the second demise is good to C also If one make me a lease for sixty years if I live so long provided Co. 1. 155. Dier 150. 253. that if I die within the term that my executors shall have it during the residue of the sixty years in this case this is a good lease for the sixty years determinable upon my death but not a good lease for the residue of the sixty years after my death And yet it may amount to a good covenant for that time If A covenant to levy a fine to B and his heirs provided that if he Evans case Trin. 5. Jac. B. R. pay B and his heirs ten pound at the end of thirteen years that then Covenant the fine shall be to the use of A and his heirs and A doth covenant with B by the same deed that B his heirs executors and assignes shall quietly hold the premisses from Michaelmas next for thirteen years and yearly from thenceforth for every if the ten pound bee not paid according to the intent in this case this covenant doth not make a good lease for the thirteen years and it is but a covenant Covenant If one make a lease for a certain number of years and it is further Plow 272. Lit. Sect. agreed that upon some contingent the lessee shall have the see simple and livery of seisin is given hereupon in this case the lease for years doth continue good for the time agreed upon A lease for years cannot by the agreement of the parties be made Co. 2. 24. 10. 87. to the heirs of the lessee nor intailed to the heirs of his body And therefore if a lease be made to I S and his heires or to I S and the heirs male of his body yet the executors of I S and not his heirs Executors shall have it and the executors may sell the term If two agree by word that one of them shall have such a peece of Per Justice Jones at the Assises at Glouc. land for twenty years this is a good and perfect lease that is made by this agreement albeit they doe agree to have a writing made of it afterwards for in this case the writing is but the confirmation of it But if the agreement be that such a writing shall be made or that a lease shall be made of such a thing between them and put in writing so that the agreement hath reference to the writing and implieth an intent not to perfect the agreement till the writing be made in this case the lease is not a perfect lease untill the writing be made Albeit the most usuall and proper making of a Lease is by the Co. super Lit. 5. F. N. B. 270. e. Br. Leases 71 words Demise grant and to ferme let and with an Habendum for life or yeares yet a Lease may be made by other words for whatsoever word will amount to a Grant will amount to a Lease And therefore a Lease may be made by the word Give Betake or the like The word Locavit also is a good word And the use in the Exchequer is to make Leases by the word Committimus which is a good word to make a lease d Bro. Leases 60. And if A doe but grant and covenant with B that B shall enjoy such a peece of land for 20. yeares this is a good lease for twenty yeares e Mic. 9 Ja. B. R. Curia So if A promise to B to suffer him to enjoy such a peece of land for twenty years this is a good lease for twenty yeares f 5 H. 7. 1. So if A license B to enjoy such a peece of land for twenty yeares this is a good lease for twenty yeares And therefore it is the common course if a man make a feoffment in fee or other estate upon condition that if such Agreed by all the
Judges Mic. 20 Jac. et per Just Bridgman And 8 Car. B. R. a thing be or be not done at such a time that the feoffor c. shall reenter to the end that in this case the feoffor c. may have the land and continue in possession untill that time to make a Covenant that he shall hold and take the profits of the land untill that time and this Covenant in this case will make a good lease for that time if the incertainty of the time whereunto care must be had doe not make it void And therefore if A bargaine and sell his land to B on condition to reenter if he pay him an hundred pound and B doth covenant with A that he will not take the profits untill default of payment or that A shall take the profits untill Covenanâ default of payment in this case howbeit this may be a good Covenant yet it is no good Lease And if the Mortgagee covenant with the Mortgagor that he will not take the profits of the land untill the day of payment of the money in this case albeit the time be certaine yet this is no good Lease but a Covenant onely If one give a Bond for the quiet holding of a Close for three yeares it seemes this is no lease in Law See the opinion of the Parliament for Bonds and Covenants both Stat. 14 Eliz. cap. 11. A Lease for yeares may begin at a day to come as at Michaelmas Co. 5. 1. sup Lit. 48. Plow 156. 197. 3. In respect of the Commencement continuance end of the term or estate Incertaintie next or three or ten yeares after or after the death of the lessor or of I S and it is as good as where it doth begin presently But a lease for life of any thing whatsoever whether it lye in Livery or in Grant if it be in esse before cannot begin at a day to come And therefore if a lease be made Habendum from Michaelmas next or from the day of the making of it or after the death of the lessor or after the death of I S to the lessee for life this lease is not good but in case of a lease of land made thus it is sometimes holpen by the Livery of seisin For which see Livery of Seisin chap. 9. Num. 11. But all leases for yeares whether they begin in presenti or in futuro Co. sup Lit. 45. Co. 1. 155 must be certaine that is they must have a certain beginning and certain ending and so the continuance of the term must be certain otherwise they are not good And yet if the years be certain when the lease is to take effect in interest or possession it is sufficient for untill that time it may depend upon an incertainty viz. upon a possible contingent precedent before it begin in possession or interest or upon a limitation or condition subsequent but in case when it is to be reduced to a certainty upon a contingent precedent the contingent must happen in the lives of the parties And albeit there appear no certainty of years in the lease yet if by reference to a certainty it may bee made certaine it is sufficient Id certum est quod certum reddi potest As for examples if A seised of lands in fee grant to B that when B shall pay to A twenty Co. super Lit. 45. Plow 83. 524. Co. 6. 35. 1. 155. shillings that from thenceforth he shall hold the land for twenty one years and after B doth pay the twenty shillings in this case B shall have a good lease for twenty one years from thenceforth And if A grant to B that if his tenant for life shall die that B shall have the land for ten years this is a good lease And if one make a lease for years after the death of C if C die within ten years this is a good lease if C die within the ten years otherwise not But if A be seised of land in fee and lease it to B for ten years and it is Plow 270. agreed between them that B shall pay to A an hundred pound at the end of the said ten years and that if he doe so and shall pay the said hundred pound and an hundred pound at the end of every ten years that then the said B shall have a perpetuall demise and grant of the premisses from ten years to ten years continually following extra memoriam hominum c. in this case this albeit it be a good lease for the first ten years yet it is void for all the rest for incertainty And if a lease be made to begin from the Nativity of Hil. 16 Jac. in the Ex. chequer Christ and he doth not say which Nativity as next c. it is void for incertainty And yet if a lease for years be made of land in lease Plow 192. 523. for life To have and to hold from the death of the tenant for life this is a good lease So if it be To have and to hold from Michaelmas next after the death of the tenant for life or from Michaelmas next after the determination of the estate of the tenant for life these are good leases So if there be a former lease in being for life Co. 6. 36. or years and another lease for years is made of the land To have and to hold from the end of the former estate by surrender forfeiture or otherwise for twenty years or to have and to hold from the surrender forfeiture or other determination of the former lease if there be any and if there be none for twenty years these and such like leases are good and this commencement is certain enough And if one make a lease to begin after the death of I S and to continue Plow 523. 17 Jac. B. R. Agree untill Michaelmas which shall be in Anno Domini 1650. this is a good lease If a man have a lease of land for an hundred years and he make a Lit. Bro. Sect. 437. Bro. Grant 154. Co. 1. â 155. Plow 520 521. See Exposition of Deeds lease of this land to another To have to hold to him for 40 years to begin after his death this is a good lease for the whole forty years if there shall be so many of the hundred years to come at the time of the death of the lessor But if the lessor grant the land to another To have and to hold to him for during all the residue of the term of an hundred years that shall be to come at the time of the death of the grantor this is void for incertainty And yet if in this case he grant withall all his estate or all his term or all his interest in the premisses of the deed and then say To have and to hold the land c. to the grantee for all the residue of the terme of an hundred years that shall be
to come at the time of his death by this the whole estate and interest of the grantor into the land doth passe presently by these words in the premisses of the deed And if in this case the lessee for an hundred years make a lease of the land to have and to hold after his death for an hundred years this will bee a good lease for as many of the first hundred years as shall be to come at the time of his death If A make a lease to B for ninety years to begin after the death Per Justice Bridgeman of A on condition to be avoided upon the doing of divers acts by others and afterwards makes another lease of the land Habendum after the determination or redemption of the former lease it seems this is a good lease and certain enough But if a lease be made to A Co. 4. 153. Dier 253. for eighty years if he live so long and if he die within the said term or alien the premisses that then his estate shall cease and then he doth further by the same deed grant and let the premisses for so many years as shall then remain unexpired after the death of A or alienation to B for the residue of the said term of eighty years if he shall live so long in this case the lease to B is void for after the death of A the term is at end but if he say for the residue of the eighty years it is otherwise If A doth make a lease of land to B for so many years as B hath Plow 273. 523. 522. F. N. B. 6. N. 14 H. 8. 11. Co. 6. 35. in the Manor of Dale and B hath then a lease for ten years of the Manor of Dale in this case this is a good lease for ten years But if A make a lease of land to B for so many years as the land B hath in execution shal be in execution this lease is void for incertainty And if a lease be made during the minority of I S or untill I S shall come to the age of twenty one years these are good leases and if I S die before he come to his full age the lease is ended But if a lease be made to another until a child that is now in its mothers belly shal come to the age of twenty one years this lease is not good And if a lease be made for so many years as I S shall name in this case if I S do name a certain number of years in the life time of the party lessor this is a good lease But if a lease be made for so many years as the executor of the lessor or of the lessee shall name this lease is void If a man make a lease for twenty one years if I S live so long or Co. super Liâ 45. Plow 27. if the coveroure between I S and D S shall so long continue or if I S shall continue to be Parson of Dale so long these and such like leases are good But if A make a lease to B for so many yeares as A and B or either of them shall live not naming any certain number of years this cannot be a good lease for years So if the Parson of Dale make a lease of his glebe for so many years as he shall be Parson there this is not certain neither can it be made so by any means And yet if a Parson shall make a lease from three years to three years so long as he shall be Parson this is a good lease for six years if he continue Parson so long and for the residue void for incertainty So if I make another a lease of land untill he be promoted to a Benefice this is no good lease for years but void for incertainty If I have a rent-charge of twenty pound per annum and let it to Co. 6. 35. 14 H. 8. 10. Plow 274. another untill he have levied an hundred pound this is a good lease for five years But if I have a peece of land of the value of twenty pound per annum and I make a lease of it to another untill he shall levy out of the profits thereof an hundred pound this is no good lease for years but void for incertainty But here note in all these cases of incertain leases made with such Note limitations as aforesaid as untill such a thing be done or so long Plow 27. Co. 6. 35. as such a thing continue c. that if livery of seisin be made upon them they may be good leases for life determinable on these contingents albeit they be no good leases for years And in some speciall cases a lease may be good notwithstanding Co. super Lit. 46. 10 Ed. 3. 26. some incertainty in the continuance of it for a lease may cease for a time and revive again as if tenant in tail make a lease for years reserving twenty shillings and after take a wife and die without issue in this case as to him in reversion the lease is meerly void but if he indow the wife of the tenant in tail of the land as to the wife it is revived again So if tenant in taile make a lease for yeares rendring rent and die without issue his wife enceint with a sonne and he in reversion enter in this case as against him the lease is void but after the sonne is born the lease is good again if it be within the Statute So if tenant in fee simple take a wife and then make a lease for years and dieth the wife is indowed in this case she shall avoid the lease but after her decease the lease shall be in force again If a lease be made for life or years to A and after the lessor doth 4 In respect of another lease then in being of the same thing Plow 433. â 421. 273. Co. 1. 155. Bro. Leases 73. 10. Plow 521. Co. 4. 58. make a lease for years by word or in writing to B regularly this concurrent lease to B is a good lease at least for so many yeares of the second lease as shall be to come after the first lease is determined according to the agreement as if the first lease to A be for twenty years and the second lease to B be for thirty yeares and both begin at one time in this case the second lease is good for the last ten years And yet the reversion will not passe without the atturnment of the tenant and therefore if any rent be reserved on the first lease the second lessee shall not have it untill the first lessee doth atturn But if the second lease be for the same or for a lesse time as if the first lease be for twenty years and the second lease be for twenty or for ten years to begin at the same time these second leases are for the most part void And yet herein a difference Dier 58. 356
howsoever the lease bee made it will not binde him that comes in of a remainder over nor him that is the donor And therefore if a tenant in tail make a lease warranted by the statute and after die without issue so that the land doth remain over to another or revert to the donor in these cases neither he in the remainder nor the donor shall be bound by this lease for as to them the lease is void And yet by a common recovery the tenant in tail may make leases of or lay charges upon the land to binde the donor and him in remainder also But otherwise it is of a fine for if tenant in tail make a lease for years by fine this will not barre the donor not the remainder in any case where it is in a stranger And yet if the remainder be in the tenant in tail himself and he make a lease for years by deed according to the Statute or by fine this lease is good and shall bind his own remainder The husband may at this day without fine or recovery make leases 6. What leases or other acts may be made or done by the husband with the lands he hath in fee simple or fee tail in the right of his wife or joyntly with her And what leases made by him of such lands are good Or not And how Stat. 32. H. 8. cap. 28. Co. super Litt. 44. of the lands tenements or hereditaments whereof he hath any estate of inheritance in fee simple or fee tail in the right of his wife or jointly with his wife made before or after the coverture so as there be in such leases observed the eleven conditions or limitations before required in the leases made by tenant in tail and so that the wise doe joyn in the same deed and be made party thereunto and doe seal and deliver the same deed her self in person For if a man and his wife make a letter of Atturney to another to Pasch 7 Jac. B. R. deliver the lease upon the land this lease is not a good lease from the wife warranted by the statute And yet then as in other like cases of leases not warranted by this statute it is a good lease against the husband And when the lease is such a lease as is warranted by the statute it doth bind the husband and wife both and the heirs of the wife but if it be an estate tail it doth not bind the donor nor him in remainder If the husband and wife at the Common Law had joyned in a 26 H. 8. 2. lease of her land without rendring of rent this lease had been void as against the wife and so is the law still If the husband at the Common Law had been seised of land in 26 H. 82. Co. 2. 77. the right of his wife and hee had made a lease for yeares rendring rent and died this lease had been void and so is the law still If the husband and wife at the Common law had made a lease Dier 92. by word rendring rent this lease had been void as against the wife and so is the law still The husband and wife together may by fine or recovery make Stat. 32 H. 8. ch 28. See the womans lawyer 163. what leases they will of her land or charge it for what time they will and such leases and charges will be good against the husband and wife both and their heires also But if the husband alone doe levie any fine of his wives land and thereby make any estate whatsoever this will not bind the wife after her husbands death but she may avoid it And if the husband and wife make a lease of her land rendring rent to them and the heires of the wife as in such leases it ought to be in this case the husband cannot by fine or otherwise grant or discharge this rent longer then during coverture unlesse the wife join in the fine but the rent shall descend remaine or revert in such sort and manner as the land should have done Bishops with the confirmation of the Deane and Chapter Parsons Co. super Lit. 44. Co. 5. 14. 11. 66. or Vicars with the consent of their Patrons and Ordinaries 7. What leases or other acts Bishops or other spirituall or ecclesiasticall persons may make or doe with the lands they have in the right of their churches or houses And what leases made by such persons will bind their successours and others Or not Archdeacons Prebends and such as are in the nature of Prebends as Precentors Chaunters Treasurers Chancellors and such like also Masters and governours and Fellowes of any Colledges or houses by what name soever called Deanes and Chapters Masters or Gardians of any Hospitall and their brethren or any other body politique spirituall and ecclesiasticall Concurrentibus hiis quae in jure requiruntur might by the ancient common law have made leases for lives or yeares or any other estates of their spirituall or ecclesiasticall living for any time without stint or limitation And at this day the Bishops and the rest of the said Spirituall Stat. 32 H. 8. ch 28. 13 El. ch 10 1 Jac. chap. 3. 1 El. ch 19. 14 El ch 11. 18 El. ch 10. 20. persons except Parsons and Vicars may make leases of their spirituall livings for three lives or twenty one years and such leases will be good both against themselves and their successors But such persons may not make leases or estates for any longer time then for three lives or twenty one years and if they doe albeit it be by fine or recovery or it be confirmed by the Dean and Chapter c. yet it is void as against the successor Neither will the leases made by such persons for three lives or twenty one years be good unlesse they have certain conditions and properties required in them These things therefore are necessarily required to be observed in the making of such leases 1. That they have the effect of all the qualities or properties before mentioned and required by the Statute of 32 H. 8. Co. super Litt. 44. Co. 11. 66. 5. 3. 15. in the lease made by the tenant in tail and be made after that pattern viz. That they be by deed indented 2. That they do begin from the time of the making of them 3. 4. That the old lease be surrendred and there be not a concurrent lease save in case of a Bishop And therfore if any such person make a lease for 21 years to one then make a lease for three lives to another this second lease is void And yet if a Bishop make a lease for 21 years to one man then within a year after make another lease to another for 21 years to begin from the making of it this so as it be confirmed by Dean Chapter is resolved to be a good lease 5. That they doe not exceed three lives or twenty one yeares
but they may be for a lesse time 6. That they be of lands or tenements manurable or corporall 7. That they be made of lands that have been commonly let to farm by the space of 20 years before 8. That there be reserved upon them the ancient and accustomed rent payable to the lessor and his successors during the time 9. That they be not made without impeachment of wast 10. That there be livery of seisin upon them c. where it is requisite 11. If the lease be made according Co. 11. 66. 5. 3. to the exception of the Statute of 1 Eliz. and 13 Eliz. and not warrated by the Statute of 32 H. 8. as in the case of a concurrent lease and it be made by a Bishop or any sole Corporation it must be confirmed by the Deanes and Chapters or others that have interest And if a Parson or Vicar make a lease it is not good but during the Parson or Vicars residence according to the Statute of 13 Eliz. chap. 20. and in this case there needs no confirmation at all 12. Some of the leases that are made by the Colledges and houses of the University c. must have some rent corne reserved Stat. 18 El. cap. 20. upon them * Co. 5. 15. 11 66. 10. 58. Dier 370. And most of these points were agreed by Justice Jones and Just Whitlock at Lent Assises at Gloc. 6 Car. But Bishops Deanes Parsons and such like spirituall persons cannot grant the next advowsons of Churches neither can they grant rents out of their spirituall livings but the same charges will be void after their death And if a Bishop suffer an annuity to be recovered against him by a pretence of title of prescription on a Judgment after a verdict or confession or a Parson in such a case pray in aide of the Patron and so suffer an annuity to be recovered this will not bind the successor And yet a Bishop or any such spirituall person may grant ancient offices of trust of necessity or conveniency as the offices of Chancellor Register Steward Bailife or the like with the ancient fees incident thereunto for the life or lives of the grantees and such grants are good albeit they be made by the Bishops of the new erected Bishopricks and that there be not in them the conditions and properties required in the leases before mentioned so as they be confirmed by the Deane and Chapter But they may not grant any new office nor yet adde any new fee to the old offices And therefore if a Bishop grant an annuity pro consilio impenso impendendo where none was before this will not bind the successor And yet if there be an old fee and there is a new fee added to it in this case it seems it is good for the old fee albeit it be void for the new fee. Neither may they grant their offices otherwise then they have been granted And therefore where the ancient grants of the office have been to one it cannot be now granted to two And where the ancient grants have been to two jointly they may not be now granted in remainder one after another Neither may the grants of these offices be longer then for the life or lives of the grantees And in case where the grant is void the confirmation of the Deane and Chapter will not make it good But here note that albeit in all these cases of leases and grants Co. super Lit. 45. 329. 3. 59. 10. 59. 11 73. 78. 5. 5. not warranted by the Statutes aforesaid the Statutes say the leases Note shall be void yet this is to be understood as against the successors and not against the lessors themselves for the leases are good so long as the lessors live or at least so long as they continue in the place And therefore if such a lease be made by a Deane and Chapter or other Corporation aggregate it is good as against the Deane or other head of the Corporation so long as he doth continue in his place And if a Bishop make any lease or other grant not warranted by the Statute of 1 Eliz. or a Deane and Chapter Master and Fellowes of a Colledge or the like make leases not warranted by the Statute of 13 Eliz. cap. 10. these leases are good against themselves albeit they are void against their successors So as if a private Act of Parliament doth entaile land upon a man and appoint him what estates he shall make and that if he make any other estates they shall be void in this case they shall not be void as to the tenant in taile himselfe that doth make them Leases of Benefices with cure are no longer good then the Parson Stat. 13 El. cap. 20. is resident Leases made by Colledges must have reserved upon them the third part of the rent in Corn. See the Statute of 18 Eliz. cap. 20. If one make a lease to another during the will and pleasure of 8. What shall be said a good lease at will Or not Co. super Lit. 55. 56. 270. 14 H. 8. 12. him that letteth or him that taketh or both for so in effect is every lease at will this is a good lease at will So if one make a feoffment in fee or lease for life c. and doe not make livery of seisin and so perfect the estate the feoffee or lessee hath only an estate at will But if a bargaine and sale be made of land and the same is void or a Corporation grant land and the grant is void by this there is no lease at will made Leases for lives or yeares are of three natures some be good in 9. Where a lease for life or years shall be void ipso facto by the death of the lessor or by other meanes Or not but voidable by entry c. And how Co. super Lit. 45. 3. 59. 65. 7 8. law some be voidable by entry and some void without entry And of such as be good in law some be good at the common law as leases made by tenant in fee simple notwithstanding they be for longer time then three lives or twenty one yeares some by act of Parliament as leases made by tenant in taile leases made by a Bishop seised in fee in the right of his Church alone without the Chapter leases made by a man seised in fee simple or fee taile of land in the right of his wife together with his wife for twenty one yeares or three lives according to the Statutes And of such leases as be void also some are void at the common law and that sometimes in presenti as in the cases before of leases for yeares that have no certainty in them or leases for lives made without livery of seisin and the like And some are void in futuro as if a tenant in taile make a lease for yeares warranted or not warranted by the Statute and after die without issue
this lease is void as to him in reversion or remainder Cessante statu primitivo cessat derivativus So if a Prebend Parson or Vicar make a lease for yeares not warranted by the Statutes this is void by the death of the lessor and the successor need not make any entry or claime to avoid it So if a tenant for life make a lease for yeares and after die in this case the lease for yeares is void And therefore in all these and such like cases no acceptance of rent after will affirme such leases But Acceptance otherwise it is in cases of leases for yeares made by Bishops albeit they be confirmed by Deane and Chapter and of leases made by Deanes and Chapters or tenants in taile as to their successors and issues when the leases are not warranted by the Statutes And otherwise it is also in the case of leases for life made by these or any of the former lessors for in all cases of leases for life it must be avoided by entry c. and therefore such leases are not void but voidable viz. The leases of Bishops and Deanes after their death by their successors and that by the Statute law and the leases of tenants in taile by their issues after their death and that by the common law And in these and such like cases the acceptance of the Acceptance rent by the issue or successor will make good the lease at least for their time If a lease be made for yeares on condition that upon such a contingent Co. 3. 65. it shall be void in this case so soone as the thing doth happen the lease is void ipso facto without any reentry c. But if a lease for life be made on such a condition in this case the lessor must enter c before the lease will be void CHAP. XV. Of a Feoffment Gift Grant and Lease A Feoffment Grant or Lease in writing may become void by 1. Where and bv what meanes a feoffment gift grant or lease and the estate thereby made being good at first becometh void by matter ex post facto and may be avoided Or not And how rasure interlining and the like as hath been shewed before in Deed supra And a feoffment grant or lease and the estate thereby made may become void by forfeiture or upon a breach of a condition or by a limitation For which See Condition and Vses Also Co. 3. 26 27. 5. 119. Doct. Stud. 119. Perk. Sect. 44. 45. Fitz. Done 4 5. Bro. Done 29. 30. 59. they may become void by disagreement or refusall And this may be either by the disagreement of the party himselfe to whom it is made or by the disagreement of another Of the party himselfe for no estate can be made to a man of any thing in see simple for life or otherwise against his will And therefore by his disagreement or refusall of it the estate it selfe and the deed whereby it is conveyed may become void By the disagreement of another as the husband in case of a feoffment c. made to his wife may by disagreement avoid it And for the first of these the law is thus That all such acts that give estates directly or by way of use are good at first and the thing granted when the deed of grant is delivered to his use shall vest in the grantee before he hath notice of the grant or agree to accept of the thing granted so that if lands be limited to a man by way of use or granted immediately by feoffment gift grant or lease or goods or chattels be given or granted to a man in these cases the things granted shall be said to be in the grantee and the grant good before notice and agreement untill disagreement And before agreement the grantee may waive it and so avoid the estate and the deed also whereby the estate is made And if it be but a lease for yeares that is made he may waive and avoid that by word of mouth in the country as well as a gift of goods or an obligation delivered to his use But if it be an estate of free hold that is made by feoffment it seemes he cannot waive and avoid that but in a Court of Record When the cause of a grant faileth and the thing granted is executory Co. super Lit. 204. Plow 134. 15 E. 4. 4. Dier 76. 9 E. 4. 20. the grant is become void As if one grant an annuity for an acre of land for tithes or for counsell in this case pro is conditionall and therefore if the land be evicted by an elder title or the grantee disturbed in the tithes or he refuse to give counsell the annuity is determined But if a feoffment or lease for life or yeares be made of an acre of land pro una acra c. as in the case before albeit the acre be evicted c. yet the grant in this case of the acre of land is good And if one grant an annuity for counsell if the grantee will not give counsell the grant is not of force So if one grant to make new pales in a place for the old pales if in this case he cannot have the old pales it seemes the grant shall not bind him to make new pales So if one grant a rent for a way stop the way and the rent shall be stopped If one that hath a lease for life or yeares of a Manor to which an advowson is appendant grant the next avoidance that shall happen Co. 8. 144 145. during the lease or grant a rent out of the Manor and then surrender the Manor so that his estate is gone in this case notwithstanding the grant of the next avoidance and of the rent doth continue good and the grantee shall enjoy it according to the grant as long as the estate that is surrendred should have had continuance If the heire of the Kings tenant enter and make a lease before livery sued and after an intrusion is found against him by this it seems the lease is avoided So if tenant in taile make a lease warranted by the Statute and after dieth without issue by this the lease H. 7. is determined If a tenant in taile make a feoffment to his heire within age and Co. super Lit. 349. he after he is of full age make a lease for yeares of the land and after the tenant in taile dieth and the heire is remitted the lease in this case is not avoided If an annuity be granted to one untill he be advanced to a benefice Plow 272. 15 H. 7. 1. by the grantor and the grantor die and the heire or executor of the grant or tender a benefice it seemes this will not determine the grant If A be lessee for yeares of an advowson and grant the next avoidance Co. 8. 145 7. 39. to B if it shall happen to become void during the terme and A doth
surrender is made And what agreement is necessary Agreement Trespasse surrendree doe once agree to it he cannot after disagree for his first agreement doth perfect the surrender But the actuall entry of the surrendree into the land is not necessary And therefore if tenant for life or years surrender to him in reversion out of the land and he agree to it he hath the land in him presently And yet he may not bring any action of Trespasse against any man for any Trespasse done upon the land untill he have made his entry But here note that in the cases before where things may not Perk. Sect. 588 589. passe by way of surrender either because of an intervenient estate or the like if there be sufficient words in the deed it may avail to other purposes and may enure and passe the thing by way of grant but then if it be an estate for life that is intended to bee surrendred there must be livery of seisin made upon the deed And wherefore if there bee lessee for yeares the remainder for life or years the remainder in fee and the lessee for years in possession doth surrender and grant all his estate to him in remainder in fee howsoever this deed cannot enure as a surrender yet it shall enure as a good grant of the estate of the lessee for years unto him in remainder in fee. A surrender in generall shall be taken most strongly against the Perk. Sect. 610 611. 6. How a surrender shall be construed and taken surrendror and most beneficially for the surrendree And therefore if I hold of the lease of A one acre for life and another acre for years and I surrender to A all my lands or all my lands I hold of his lease by this surrender both the acres are surrendred But if the surrender be of all the lands I have or hold for life or of all the lands I have or hold for years of the lease of A contra And if I hold one acre for life of the lease of the father of I S and I hold another acre for life or years of the lease of I S himself and I surrender to I S all the land I hold of his lease by this the land that I had by the lease of his father doth not passe A surrender to Perk. Sect. 615. Bro. Sur. 54. Co super Lit. 192. one jointenant shall be construed to enure to them all But if tenant for life or years grant his estate to one of the jointenants in reversion it seems this shall not enure as a surrender to them all but as a grant to him alone If the lessor make and the lessee take a new lease upon condition Co. super Lit. 218. this surrender in law is absolute and albeit the condition be broken yet the first lease is gone But if the lessee surrender or grant his estate to the lessor upon condition this condition if it be broken may revest the estate See more in the next question and in Exposition of Deeds If any kind of tenant for life of land infeoft him in remainder or Bro. sur 3. 5. Perk. sect 616. 620. 623. Co. super Lit. 42. Bro. Sur. 49. 7. Where a feoffment lease grant or other act made or doÌe by the tenaÌt for life or years shall be a surrender or not And how it shall enure or be coâstrued and taken 1. When it is made to him in reversion or remainder reversion of the land or grant his estate to him in remainder or reversion this shall enure as a surrender And if lessee for years before his term doe begin make a feoffment to him in reversion or remainder or grant his estate to him this shall enure as a surrender And if lessee for life grant his estate to him in reversion the remainder in fee to another this shall enure as a surrender and this remainder is void But if such a tenant for life make a lease to him in remainder or reversion for the terme of the life of him in remainder or reversion this shall not enure as a surrender because it doth not give the whole estate but it shall enure by way of grant So if lessee for life make a lease to him in remainder in tail for term of the life of him in remainder this shall not enure as a surrender but as a grant and shall end with the life of the grantee If lessee for forty years make a lease for thirty seven Pasch 7 Jac. B. R. years on condition and after grant his estate to him in reversion and the second lessee atturn this shall enure as a surrender If there be tenant for life the remainder in tail to a stranger and Perk. sect 6ââ the remainder in tail to another stranger the remainder in fee to the tenant for life and the tenant for life doth make a feoffment to the first tenant in tail this shall enure as a surrender of the estate for life and as a grant of the reversion in fee also If tenant Co. super Lit. 42. for life being a woman take a husband and then her husband and she by deed indented make a lease to him in reversion for the life of the husband this shall not enure as a surrender but as a grant If there be tenant for his own life the remainder to I S for his life Bro surrender 17. and the first tenant for life surrender to him in remainder for the life of him in remainder it seems this shall enure as a surrender and is no forfeiture but if he grant it to him for the life of a stranger and make livery of seisin this is a forfeiture If lessee for Forfeiture Perk. sect 615. life the reversion being in jointenants grant the land to one or all of the jointenants for twenty years this shall not enure as a surrender but as a grant for there remains an interest in the lessee still as a mean estate If lessee for years make him in reversion or Bro. surrender 52. remainder his executor this shall not enure as a surrender albeit it doe give him the whole estate If lands be given to the husband Bro. surr 36 and wife the remainder to I S and the husband discontinue in fee and take back an estate to him and his wife the remainder to W N and die and the wife claim in by the second estate and surrender to W N this shall not enure as a surrender but as a grant If lessee for life or years grant his estate to him in remainder or Bro. surr 11. Co. 2. 61. 3. 61. reversion and a stranger this shall enure as a surrender of the one 2. When it is done or made to him and a stranger half to him in reversion and as a grant of the other moity to the stranger And yet it is said that if lessee for life of land grant his estate
But if he confirme the land for twenty yeares it Noâe may be good for that tine only and no longer wherein as in divers other cases before observe that the very words whereby the confirmation is made are much to be heeded for Parols font plea. If tenant in taile or for life of land letteth it for yeares and after Lit. Sect. 606 607. 610. confirme the land to the lessee for yeares To have and to hold to the lessee and his heires for ever by this the lessee hath only an estate for terme of the life of the tenant in taile or for life and therein his lease for yeares is extinct If tenant for life doth grant a rent to another and his heires during Co. 1. 147. super Li. 301. the life of the tenant for life and the lessor confirme to the grantee and his heires this shall be construed to be an estate for life only and no enlargement of the estate But if tenant for life grant a rent-charge in fee and the lessor confirme it this shall be construed to be a confirmation of the fee simple See more in Exposition of Deeds cap. 5. in toto And more also in the chapter of Release whereunto we are now come in the next place CHAP. XIX Of a Release A Release is the giving or discharging of the right or action Terms of the law West Symb. lib. 2. Sect. 466. 1. Release Quid. which a man hath or may have or claime against another man or that which is his Or it is the conveyance of a mans interest or right which he hath unto a thing to another that hath the possession thereof or some estate therein And this albeit it may be made by other words as Dedi Concessi or Renunciasse or such like yet it is most commonly and properly made by these words Remisisse Relaxasse quietum clamasse all which are much to one purpose He that Relessor Relessee makes the release is sometimes called the relessor and hee to whom it is made the relessee There are two kindes of releases like unto those of confirmation Co. super Lit. 264. 265. 2. Quotuplex viz. a release expresse or in deed and that is a purposed release when the act done or deed made is intended a release And this is alwaies done by writing And then it is defined by some to be an Instrument whereby estates rights titles actions and other things be sometimes extinguished sometimes transferred sometimes abridged and sometimes enlarged which is after this manner Noverint c. me A de Bremisisse relaxasse omnino de me vel prome hered meis quietum clamasse C de D totum jus titulum clameum que habui habeo vel quovismodo in futuro habere potero de in unto mesuagio cum pertin in F c. And a release implied or in law and that is when the law by intendment and construction and by way of consequent doth make a release of an act done to another purpose And this is sometimes by writing and sometimes without writing These releases also are sometimes of a bare and naked right and sometimes of a right accompanied with some estate or interest And sometimes they are of actions reall or in lands or tenements and sometimes of actions personall of or in goods or chattells and sometimes of actions mixt partly in the realty and partly in the personalty A release is much of the nature of a confirmation for in most 3. The nature and operation of it in generall Co. super Lit. 193. 273. 277. Co. 1. 147. Lit. Sect. 606. 459. 465 466. 446. things they agree and produce the like effects This therefore is said sometimes to enure by way of mitter le estate i. by way of giving or transferring or enlargement of an estate or interest and so doth give some new interest or estate to him to whom it is made And sometimes it is said to enure by way of mitter le droit only i. by way of giving transferring and discharging of a right title or entry unto him to whom it is made And so it doth sometimes perfect an estate that was imperfect and defeasible before and enure by way of entry and feoffement And sometimes also it doth enure to make a conditionall estate absolute And sometimes also it doth worke and enure by way of extinguishment or discharge And then also sometimes it doth enure by way of discharge or extinguishment as against all persons and so as that whereof all persons may take advantage And sometimes it doth enure only as a discharge against some persons only and as to or against other persons by way of Mitter le droit And some of these in deed enure by way of extinguishment for that he to whom the release is made cannot have the thing released And some of them have some quality of such releases and are said to enure by way of extinguishment but in truth doe not for that he to whom the release is made may receive and take the thing released And in some cases also a release like a confirmation doth enure by way of abridgement But a man cannot barre himselfe hereby of a right that shall come to him hereafter And therefore it is held that these words used in releases quae quovismodo in futuro habere potero are to no purpose Lands tenements and hereditaments themselves may be given 4. What things may be released Or not And how and transferred by way of release and all rights and titles to Co. 10. 48. super Lit. 268. 269. 266. lands may be given barred and discharged by release and so also may rights and titles to goods and chatteâls Also all actions reall personall and mixt may be given discharged or extinct by release for howsoever rights and titles of entry cannot be granted by act of the party nor any action may be granted from one man to another by act of the law or the party yet all these may be released to the terretenant And a right to a free hold or Inheritance seigniory or rent in presenti or futuro may be released five manner of waies and the first three waies without any privity at all 1. To the tenant of the free hold in deed or in law 2. To him in the remainder 3. To him in reversion The other two waies in respect of privity without any estate or right as by demandant to vouchee donor to dones after the donee hath discontinued Also conditions annexed to estates powers of revocation of Bro. Release in toto uses warranties covenants tenures services rents commons and other profits to be taken out of lands may be discharged extinguished determined by release to the tenant of the land c. Also possibilities of land c. if they be neere and common Co. 10. 47. 51 52 5. 7â 71. super Lit. 265. Lit. Sect. 446. Co. 1. 111. 111. Dier
57. Co. 1. 113. 174. possibilities albeit they be not grantable over to another person yet may they be released to him that hath the present estate of the land And therefore if a man possessed of a terme devise it to A for life the remainder to B and his heires males during the terme in this case albeit B may not grant his interest over yet he may release it to A. And if A devise to B twenty pound when he comes to the age of twenty foure years and die in this case B after he is of the age of twenty one years may release this legacy So a covenant to doe a future act may be released before it be broken And it seems also the conusee of a Statute or recognisance may release to a feoffee of part of the land and so barre himselfe of execution of that land And if I grant to I S that if he doe such a thing he shall have an annuity of twenty pound for his life in this case it seems I S may release this before the condition be performed And if I make a feoffment to I S to divers uses with power to revoke it I may release this power to one that hath an estate of free hold in possession reversion or remainder in the land And yet if I make a feoffment to I S with proviso that if B revoke that the uses shall cease in this case B cannot release this power And a remote possibility that is altogether incertaine cannot be released And therefore if the sonne of the disseisee release to the disseisor in the life time of his father this release is void And so if the conusee of a Statute release his right to the land of the conusor before execution this release is void And so if a plaintife release to a Baile in the Kings Bench before Judgement given this release is void So if one promise to pay me tenne pound upon the surrender Adjudge Tr. 14. Jac. B. R. of my land to him and that if he shall sell it for above fifty pound that then he shall pay me tenne pound more and I release this to him before he doe sell it and before I do surrender im this case this doth not release the second promise because it is not releasable Also debts legacies and other duties may be released and See inââ discharged thereby before or after they become due And therefore a rent or annuity may be released before the day of paiment And so also may a debt due by obligation Judgements Executions Recognisances and the like by apt words be discharged by release If the charge or duty grow by record the discharge and release 5. How and after what manner these things may be released thereof must be by record also And if it grow by writing the discharge and release must be by writing also Nihil est magis rationi consentaneum quam eodem modo quodque dissolvere quo constatum est And therefore a duty growing by a verball agreement may in some cases be released by word without writing But regularly lands and tenements cannot be given nor rights and titles to lands and actions be discharged by release without a deed in writing A release that doth enure by way of mitter le estate mitter le Condition Defeasance Co. super Lit. 274 Perk. Sect. 718. Lit. 467. Co. 1. 111. 21 H. 7. 24. droit or extinguishment may be made upon condition or with a defeasance so as the condition or defeasance be contained in the release or delivered at the same time with it for no defeasance made after can avoid the force of a release made before And yet a release may be delivered as an escrow and so the force of it may be suspended for a time But a release of a condition may not be made upon a condition Nor may a release of a chattell be upon a condition subsequent but it may be upon a condition precedent * Curia B. R. Hil. 9 Car. Barkley Perkes case Dier 307. 21 H. 7. 24. Co. super Lit. 274. Lit. Sect. 467. And therefore if a man release a debt to another upon condition that the relessor may have such a debt owing from a third person to the relessee this is a good coÌdition A release of all actions may be made untill a time past as untill the first of May last or untill the day of the date of the release and this will discharge all actions till then and none after But a release cannot be made of a right or action for a part of an estate or for a time only as for one year or untill Michaelmas next or the like for a release of such a thing for one day or for one hour is a release of it for ever And yet a man may release his right in a part of the land And therefore if a man be disseised of two acres he may release his right in one of them and enter into the other acre Also a release in the nature of an acquitance may Adjudged Barkley Perkes case Hil. 9 Car. B. R. be of part of a debt And therefore if one be bound in an obligation of foure hundred pound to pay two hundred pound at Michaelmas and at Christmas after the obligee by his deed releaseth three hundred ninty pound parcell of the said foure hundred pound this is a good release for so much and no more * 6. What releases may be made of lands or tenements And what shal be said a good release in deed Or not And by what words it may be made 1. When it doth enure by way of enlargement or passing of an estate 1. In respect of the estate of the relessor In every good release in deed howsoever it enure these things are requisite 1. That there be a good relessor and a good relessee and a thing to be released 2. That the deed be well sealed delivered c. And if it tend and enure by way of enlargement of estate then these things are further required to make the release good 1. He that doth make the release must have such an estate in himselfe as out of which such an estate may be Dier 251. derived and granted to the relessee as is intended by the release as if he have the reversion in fee of lands he may release to a tenant for years and thereby encrease his estate to an estate for life or in taile or he may passe his whole fee simple by the release But if there be lessee for years rendring rent and the reversion is Per Justice Jones 5 Car. Dier idem granted for life the remainder over in fee and the grantee of the reversion release all his right to him in remainder and then he in the remainder grant the reversion and the tenant for life release to the grantee also in this case it seems both these releases are void and cannot
of the County where the lands and goods lie for the valuing of the same whereby all the lands goods and chattels of the Conusor shall be apprised and valued at a reasonable rate by a Iury of sworn men charged by the Sheriff for that purpose which Inquisition so taken is to be returned by the Sheriff and thereupon the lands goods and chattels are to be taken into the Sheriffs hands and by him to be delivered to the Conusee which the Sheriff may doe if he will without any Writ to hold unto the Conusee untill he be satisfied his debt and damages And if the Sheriff refuse so to doe the Conusee shall have a Writ out of the Chancery called a Liberate to compell him to deliver to Literate Quid the Conusee the lands goods and chattels so found by Inquisition and taken into his hands upon the Extent which the Sheriff need not to return * Adiuge Butler verâiâ Walli paâ ââ Eliz. B. R. Or the Conusee may enter upon the land himselfe and take the goods out of the Sheriffs hand and this act of the Sheriff and Iurie upon this Writ is called an Extent And if the Iurors of Appraiâors upon the Extendi facias overvalve the lands or Extend Quâ goods in favour to the Debtor the Conusee hath no remedy but by motion in that Court where the Writ is returnable at the return day or at least the same Terme wherein the Writ is returnable to desire that the Appraisors may take the lands or goods at the rate they have valued them in the same manner as the Conusee is to have them But if the Conusee accept of the lands and goods from the Sheriff or suffer the Term to passe wherein the Writ is returnable he is too late and hath no remedy at all And if the Appraisors do undervalue the lands or goods in favour to the Debree it seemes the Conusor hath no remedy at all for he may at any time pay all or the residue of the debt and damages unlevied and have his land againe if he please And in case where the Inquisition or Extent taken and made is insufficient as if part of the land only be extended in the name of all the lands or it is found the Conusor dyed seised of land and it is not said of what estate or the like the Conusee shall have a new Extent and this is called a Re-extent and this he may have Re-extend albeit the lands or goods be delivered to the Conusee by a Liberate if the Conusee have not entred upon and accepted it but if he once accept it he can never after have a Re-extent And when the Conusee is in possession of lands by such an Extent as before then is he Tenant by Statute and after the Conusee is once setled in peace in the lands extended he shall hold it untill he be satisfied his debt and Tenant by Statute his reasonable costs and damages for travell suit delay and expence But it seemes the time shall not run out nor bee said to begin untill the entrie of the Conusee into the land for if the land be extended and remaine seven yeares without a Liberate made yet he may have a Liberate at the end of the seven yeeres And assoon as the Conusee shall be satisfied his debt and dammage by the goods and chattels of the Conusor and by the ordinary and certaine or extraordinary and casuall profits of the land the Conusor shall have his land againe And for that purpose if the Conusee refuse to give him an account and to yield up his land to him the Conusor howbeit he may not enter yet may compell the Corusee thereunto Venire facias ad Conââ dââ Quid. by a Writ called a venire faecias ad computaââm in the nature of a Scire facias by which the Conusor shall call the Conusee his Executors of Aâminstrators to account and if upon the accompt it shall appear he is satisfied the Conusor shall have his land againe and if it appear he is oversatisfied he shall answer the over-plus to the Conusor But the Conusor may not enter upon the Conusee untill he hath brought this Writ and made it thereupon to appeare that the Conusee is satisfied And if in case the Conusee be dead his Executor or Administrator may have execution of the Statute without Executor any Scire Facias upon the shewing of the Statute and the Testament in Chancery And if the Sheriff return that the Conusor is dead the execution shall be made of his lands only in the hands of his Heir or the Purchasor but if the Heir be under age the Execution cannot be Age. done untill he be of full age And if the Conusor die in prison the Execution shall be of his lands goods and chattels And if the Gaoler Escape that hath him in prison suffer him to escape he must answer the debt And if it fall out that the Conusee his Executor or Administrator be ousted or disturbed of his Execution by the Conusor himselfe or any other during the time of the Extent he may relieve himselfe against the disturber by Assise or other Action as another in the like case may doe And if he be rightfully ousted or disturbed by one that hath better right as by one that hath a former Statute or the like or by the act of God as by fire water or the like in these cases the Conusee shall hold the land over after the time of his extent untill he be satisfied But when it is through his own neglect only that he is unsatisfied as where the lands are delivered to him by the Liberate and he after his entrie into them make a conditionall surrender of them as if lands of the value of 10 l. by the year be delivered to him in execution for 40l and he within foure yeares make a conditionall Surrender of them to the Conusor and after he enter for the condition broken in this case he shall not hold the land over the foure years for he must take the profits upon his Extent presently The proceeding in Execution of the Statute Staple and the Recognisance founded upon the Statute of 23 H. 8. is after the same manner throughout as the proceeding in Execution of the Statute Marchant is with these differences only That upon 15 H. 7. 16. F. N. B. 130. 131. the Execution of the Statute Merchant there doth issue forth a Capias against the body before any Execution be to be made of the lands or goods and chattels and the lands and goods cannot bee extended untill a quarter of a yeare be past after the body is taken or the Sheriffe have returned a non est inventus but upon the Execution of the Statute Staple and the Recognisance the body goods and lands may bee taken together at the first this therefore is a more speedy remedy then the
by a day of the same land and before the day the feoffee enter Littl. Sect. 3â8 into a Statute or a recognisance this land shall be subject unto execution untill the feoffor reenter for the breach of the condition If one be disseised of land and then enter into a Statute this Coo. 2. â9 land shall not be subject to execution and yet if the Conusor do after recover the land by entry or action it shall be lyable to execution The goods and chattels whereof the Conusor is solely possessed Stat. de Merâât r. bus Co. 3. 11. 12. âlââ 52â Coo. c. ââ1 5. 92. Dyer 6â and possessed in his own right and the goods and chattels of which he is joyntly possessed with another and the goods and chattels he hath in the right of his wife are liable to execution But the goods or chattels that he or his wife hath as Executor or Executrix to another or as pledged only it seems are not subject to execution And if the Conusor deliver goods to another to deliver over to I S these goods before they be delivered over are liable to execution And if hee have leases for yeares in the right of his wife and die before execution be done it seemes these leases are liable to execution Sed quaere But if the Conusor have goods in his custody of another mans or have goods he hath distrained in the nature of a distresse these are not liable to execution All the lands tenements and hereditaments which the Conusor had at the time of the Statute or Recognisance entred into or at 3. In respect of the time Coo. 3. 12. Stat. de Mer catoribuâ any time after into whose hands by what means soever the same are betide and come at the time of execution are subject and liable to the execution But the lands the Conusor had and did put away before the time of the Statute or Recognisance entred into are not liable to execution And all the goods and chattels the Conusor hath and are found in his hands at the time when the execution is to be made by the Extendi facias are liable to the execution But the goods and chattels he had and did Bonâfide do away before the time of execution done are not liable to the execution And of all these things before subject to execution the Conusee may take all or part at his pleasure And therefore if the Conusor 4. In respect of the quantity ãâã Stââââ 4. 2. 25. Pââ 72. Sââ ãâã have sold his lands to divers persons or have sold some of his lands to divers persons or to one man and keep the rest in his hands or it descend to his heire the Conusee may sue execution upon the lands in either of their hands at his election so that if the Cognisee after the Statute entred into and before execution purchase part of the land of the cognisor he may notwithstanding have execution upon the residue in the hands of the Conusor or in the hands of his heire and yet so that in some of these cases his execution may be afterwards avoided and he he compelled to sue execution againe The Cognisee upon other Recognisances shall have the same Weston 2. chap. 13. Plow 72. Coo. 3. 12. Dyer 30â Kelw. 100. things in execution as a man shall have after a judgement in a Suite in the Kings Bench or Common-Pleas by Fieri facias or Levari facias all his goods and chattels and by Elegit the Moity of his lands and all his chattels besides the Cattell of his plow and implements of husbandry But in these cases he cannot take the body of the Conusor in execution unlesse it be upon a new Suite or in case of baile in the Kings-Bench Howsoever by the Common-law after a full and perfect execution had by extent returned and of record there shall never be any Stat. 32. H 8. chap. 5 â Where a man shal have a Reextent or â new execution And where not reextent yet by a speciall Act of Parliament it is provided That if after lands c. be had in execution upon a just or lawfull title wherewith all the said lands c. were liable tied or bound at such time as they were delivered or taken in execution they shall be taken or recovered away from him before he hath received his full debt and damages in this case after a Scire facias had against the Conusor his heirs executors administrators or purchasors he or his executors or administrators if he be dead shall have a new execution to levie the residue of the debt and dammages then unsatisfied Wherein these things are to be observed 1. In case where the Coo. 4. 66. 82. Plow 61 15. H. 7. 15 Coo. super Litt. 99. Kitch 116. Conusee is unlawfully and wrongfully disturbed either by the Conusor or by a stranger in the taking of the profits of the land delivered to him in execution there hee may and must bring his action and recover damages and these damages shall goe toward his satisfaction for in this case and for this disturbance hee shall not hold the land a day the longer And where he is hindred by his own neglect or act in the taking of the profits of the land as where his debt is 40l and he hath 10l a yeare delivered to him by which be may satisfie himself in four yeares and within the time hee make a conditionall surrender to the Conusor and enter for the condition broken in this case hee shall not hold the land over neither shall he have any Reextent And where the let or disturbance is such as wherein the Conusee hath remedy given him by the Common-law to hold the land over after the disturbance removed in this case he shall have no new execution nor reextent within this Statute for where the Conusee hath remedy in praesenti for part or in futuro for all or part this Statute extendeth not to it And therefore where the Conusee is hindred in the taking of the profits of land by the act of God as by fire overflowing of water or the like or the act of the party Conusor or any by or under him as when one is bound to A in a Statute of 100l and after to B in a Statute of 200l and B extendeth the land first and then A extendeth the land and taketh it away from B or when the Gardian in Chivalry doth put out the Conusee by reason of the Wardship of the Heire of the Conusor or the wife of the Conusor doth claime her dower and put out the Conusee or one disseise his lessee for life or out his lessee for years and then acknowledge a Stature and after execution is sued against him and then the land is delivered to the Conusee and after the lessee for life or yeares doth enter in all these cases because by the Common law the Conusee may hold
over the land after the time given him by the extent and after the impediments removed untill he be satisfied his debt and damages therefore he shall have no ayd of this Statute by Reextent for he is then only to be relieved by this Statute when as he is evicted and disturbed and is wholly and clearely without any remedy at the Common-law 2. Where the Statute saith untill he c. or his assignes shall fully and wholy have levied the whole debt and damages if he hath assigned severall parcels to severall assignes yet all they shall have the land but untill the whole debt be paid 3. Where the words be for the which the said lands c. were delivered in execution If A disseisor convey the lands to the King who granteth the same over to A and his heires to hold by Fealty and 20l. rent and after granteth the Seigniory to B B acknowledgeth a Statute and execution is sued of the Seigniory A dieth without heire and the Conusee entreth and is evicted by the disseisee in this case he shall have the ayd of this Statute but the Perquisite of a Villain being evicted is out of the Statute 4. Where the words be delivered and taken in execution yet if after the Liberate the Conusee enter as he may so as the land is never delivered yet it is within the remedy of this Statute 5. Albeit the Statute speake only of the recoveror obligee c. and not of their executors administrators or assignes yet the Statute shall extend to them 6. Where the Statute speakes of a Scire facias out of the same Court c. if the record be removed into another Court and there affirmed he may have a Scire facias out of that Court. 7. Where the Statute gives a Scire facias against such person and persons c. that were parties to the first execution their heires executors or assigns c. this must not be taken so generally as the letter is for if the first execution were had against a purchasor c. so as nothing in his hands were liable but the land recovered if this land bee evicted from the tenant by execution no Scire facias shall goe against him his executors c. but if he hath other lands subject to execution then a Scire facias lieth against him or his assignes but not against his Executor neither in that case can he have a Scire 7. Where and by what means a Statute or Recognisance and the execution thereof shall be discharged ânâ ponded or avoided ââl or iâ paât and where not facias upon this Statute against the first debtor or recognisor but if there be severall assignes of severall parcels of lands subject to the execution one Scire facias will lie against all the assignes A Statute or recognisance and the execution thereupon may be discharged divers wayes as by defeasance release paiment of the mony Dyer 297. 315. Co. 6. 13 20. Ass Pl. 7. See Defeasance debt and damages or the residue thereof unlevied delivery up of the Statute purchase of part of the land by the cognisee or the like And therefore if there be a defeasance to the Statute or recognisance and it be to pay money at a day or to performe some other thing and the money be paid or the thing done accordingly this is is a discharge of the Statute And therefore if such a Statute or recognisance be afterwards sued against the Conuâor hee may bee By defeasance âelieved by an Audita Querela And if A bind himselfe to B by a Statute of 20l. and B sue execution and the lands of A are delivered to him in execution untill he levy the money and after B doth make a defeasance to A by Indenture that if A pay 10l by a day certaine that then the Statute or Recognisance shall bee voyd if this be done accordingly the Statute and the execution thereupon is defeated and discharged And if the Cognisee before By Râlease Coo. ãâã Litt. ãâã 47. 50. 51. super Lââl 265. Broo. St. Marchant 2â See Releaââ execution or after release to the Cognisor the Statute or Recognisance or the debt this is a perpetuall discharge of the Statute and the execution thereupon But if the Conusee before execution release to the Conusor all his right in or to the land this will not discharge the whole execution for if he may not sue execution of the land afterwards as it seemes he may this notwithstanding yâââe may sue execution of his body and goods But such a release after execution made of the land will no doubt discharge the land ând yet if a Conusee release all his right in the land to the Feoffee of the cognisor of a parcell of the land it seemes this will discharge the land of execution albeit it be before the execution sued that this release is made And so it is said it was resolved Mich. 26. 27. Eliz. If the cognisee assigne the Statute or Barrow Graies case 38. Eliâ Recognisance to the Cognisor or to the terre-tenant by way of discharge of the debt or land it seemes this is a good release and discharge of it in law And if the Cognisee purchase any part By purchase or surrender of the land of the land of the Cognisor after the Statute or Recognisance Plow ye â N. 104. lit Broo. Sect. 293. 11. M. 7 4. Branditâ Queâla 48 Seat Marchant 42. Coo. âeyre âitt 150. 25. Aâs Pl. 7. Broo. Stat. Marchant 25. Littl. ãâã ãâã 25. entred into this is no discharge of the Statute or the Recognisance but the Cognisee may have execution notwithstanding of the lands that are left in the hands of the Cognisor or of his body or goods or all But if the Cognisee purchase parcell of the lands and a stranger another parcell in this case the lands that are purchased by the stranger shall be discharged of execution And if the Cognisee after execution sued purchase any part of the and or the Fee-simple of all or part of it doth descând to him by this the whole execution is discharged And if the Cognisee purchase all the lands of the Cognisor by this the execution as to the land is suspended but this is no discharge as to the body and goods of the conusor for they are subject to execution still And if the conusee reinfeoffe the conusor againe the execution may be revived again against the lands of the conusor so that they will be subject to execution againe whether they do contiââe in his lands or bee sold away to others So also if the Conusee enfeoffe a stranger after hee doth purchase the land and the stranger doth enfeoffe the Conusor in this case also the Execution is revived and the lands shall now be subject thereunto as they were before If a Leassee for life make a Lease for yeares rendring a rent and Harringtone case âasche
be two daies of that name in the yeare in this case it seemes it must Dyer 77. be done that day that is furthest of from the time of the making of the obligation especially if that day be the more notorious of the two dayes If the condition be to pay 10l the eleventh of May next following Adiudg M. 20. Iac. B. R. Prescots case and the obligation is dated the 5th of May in this case the money must be paid the 11th day of the same Moneth of May and not of the next Moneth of May. If the condition be to stand to the award of I S and I S award 22 Ed. 4. 25. money to be paid but set no time for the payment of it this must be paid in convenient time else the obligation shall be forfeit If one be bound to me in an obligation with condition that if I enfeoffe Perk. Sect. 797 799. him of White acre he will pay me 10l but doth not say when this must be done assoon as I make him the feoffement So if one be bound to me that if the goods I have delivered to B shall be lost that C shall satisfie me for them and doth not say when this shall be presently after the loosing If the condition be to pay I S money when he shall come to M. 2. Iac. B. R. Crausdenet Morses case the age of 21 yeares in this case it must be paid the very day I S doth come to his full age and paiment after is not a sufficient performance of the condition If the condition be to come at a day to such a place to do a thing 39 Eli. B. R. Fitz. Barre 92. and the thing cannot be done without the concurrence of the other partie in this case the obligor must stay for the very last instant of the day for his comming and it seemes also he must stay at the place all the day long If the condition be to pay a rent at Mich. or within 20 dayes Adiudg pasâ 39 Eli. after the obligation is not forfeit before the 20 dayes be past If one be to doe a thing on a day certaine he may doe it any part Eroo Condition 145. Dyer 17. 7. Ed. 4. 3. of the day whiles the light doth last And if the condition be to doe a thing by or before a day it may be done the last instant of the day before and it is sufficient If the condition of an obligation be to pay money or doe any Perk. Sect. 780 781. 7 Ed. 4. 4. 22 Ed. 4. 25. Lit. Sect. 340 341. like transitory act to the Obligee on a day certaine but no place is 3. In respect of the place where the thing is to be done set down where it shall be done in this case it must be done to the person of the Obligee wheresoever he be and for this purpose the Obligor must at his perill seek out the Obligee if he be intra quatuor maenia otherwise the obligation is forfeit but if the Obligee be not within the Kingdom at the time when the thing is to be done he is not bound to seek him so neither is the obligation forfeit for not doing of the thing So if one grant an Annuity to another and doth not set down where it shall be paid and gives a Bond with condition for the payment thereof in this case it must be done to the person of the Obligee where ever he be And the like Law is as it seemes where the thing to be done by the condition is to be done by or to a stranger But when the thing the party is bound by the condition to doe is locall he is not bound to goe any further or to any other place but to the place it selfe And therefore if the condition be to make a Feoffment of a piece of Land the party that is bound to doe it is not bound to goe to any other place but to the piece of land to doe it And if a man make a Feoffment in Fee or Lease for life or years of land rendring rent generally and gives an obligation with condition for the payment of the rent the Feoffee or Leassee is not bound to goe to any place from the land to seek the Feoffor or Leassor to pay him this rent If the condition be to deliver 20 quarters of corn such a day to Perk. Sect. 785. the Obligee and no place is set down where it shall be delivered in this case it is sufficient if the Obligor when the corn is ready doe give notice thereof to the Obligee and to wish him to appoint a place wherunto the Obligor may bring it and if he refuse to appoint a place it is at his own perill or the Obligor may bring the corn to the house of the Obligee and this is the safest way and if the Obligee refuse it the condition is performed and the obligation is discharged If the condition be to performe all the Covenants in an Indenture âoo 4. 80. Dyer 257. 4. In respect of the thing it self to be done this shall bee taken as well for the Covenants in Law as for the Covenants in Deed. If a Lease be made of a Mannor excepting a Close and the Plow 67. Leassee make an obligation to the Leassor with condition that the To perform Covenants Leassee shall perform omnia singula in scripto praedicto contenta by this the Close shall be taken to be within the condition so that if the Leassee disturb the Leassor in the Close excepted this shall be a of breach the condition If the condition be to makea Feoffment to the Obligee of Land To make a Feoffment Lease c. See Covenant Num. 6 in this case the Feoffment may be made with or without writing and if it be made by writing it may be made without any warranty or Covenants and this will be a sufficient performance of the condition If the condition be That the Obligor shall make a Lease to the Coo. 6. 33. Obligee for 20 years and it is not set down when the Lease shall begin it shall begin presently If the condition be That the Obligor shall doe any act upon request Dyer 228. that the counsell of the Obligee shall think reasonable as To make a Release or other assurance for example shall doe any act c. for the releasing of an obligation wherein the Obligee is bound to the Obligor and the Obligee by advise of Counsell deviseth and requesteth a release of all demands to the Obligee and to I S in this case the Obligor may refuse to seale it albeit it âe devised by the counsell of the Obligee because it is unreasonable for it must be a reasonable act that the Obligor by this condition is bound to doe If the condition be to pay 10l at Michaelmas next and 10l To pay money or rent
certaine 14 H. 8. time surrender such land of his for an Annuity of so much as they shall agree upon and they agree upon 10l per annum in this case the Obligor is not bound to make the surrender untill the Annuity be made and tendred unto him If the condition bee to deliver to the Obligee an obligation Hil. 37. Eli. Co. B. Greeinghams case adiudg wherein the Obligee is bound c. or to seale and deliver to the Obligee such a Release of it as shall be devised by the counsell of the Obligee before Michaelmas and the counsell doe not advise any Release before Michaelmas in this case the Obligor is discharged of the obligation for the Obligee is to doe the first act If A be bound to B in an obligation with condition that A and Trin. 4. Iac. B. R. his wife shall levie a fine of land to C and D and their heires and at their costs and charges this shall be construed to be at the costs of the Obligor and not at the costs of the Conusees but if the word and be omitted perhaps it may be of otherwise If the condition be thus That if the wife die before Michaelmas Dyer 17. without issue of her body then living that the obligation shall bee void in this case then living shall relate ad proximum antecedens and not to the death of the wise and therefore if she hath issue and die and after before Michaelmas the issue dyeth also the obligation is void If the condition be that if the Obligor shall waste the goods of the Obligee his master and this waste within three Moneths after Golds case M. 13. Iâ due proofe of it either by confession or otherwise bee notified to the Obligor that the Obligor shall satisfie the Obligee for it and the Obligor doe confesse the waste under his hand and seale in this case it seemes this proofe though it be extrajudiciall is sufficient When the condition of an obligation is to doe two things by a Coo. 5 22 super Lit. 207. Dyer 262. 15 H. 2. 4. H. 7. 4. day and at the time of making of the obligation both of them are Conditions Impossible possible but after and before the time when the same is to be done one of the things is become impossible by the act of God or by the sole act and laches of the Obligee himselfe in this case the Obligor is not bound to doe the other thing that is possible but is discharged of the whole obligation But if at the time of the making of the obligation one of the things is and the other of the things is not possible to be done he must perform that which is possible And if in the first case one of the things become impossible afterwards by the act of the Obligor or a stranger the Obligor must see that he doe the other thing at his perill And when the condition of an obligation is to doe one single thing which afterwards before the time when it is to bee done doth become impossible to be done in all or in part the obligation is wholy discharged and yet if it bee possible to be done in any part it shall be performed as neare to the condition as may be If the condition be to doe one of two things as to make a feoffment to me or pay me 20l. in this case if the obligor doe either 21 Ed. 3. 29 of them it is sufficient But if the condition be in the copulative as to enfeoffe me and pay me 20l. in this case the doing of one of them will not suffice but he must doe both If the condition be to pay to A B and C 30 l. a pece within a week after they come to 18 years of age or within 40 dayes after Per. Iustice Dodridge M. 2. Car. B. R. their dayes of marriage after notice given thereof which shall first happen in this case this notice must goe to both the parties so that notice must be given when they are 18 years of age otherwise and untill notice given it seemes the obligor is not bound to pay the money See more in Condition Numb 8. and Covenant Numb 6. The matter of a condition of an obligation is sometimes affirmative 8. When the Condition of an Obligation shall be said to be performed and the Obligation saved or not and compulsory and doth consist of something to be done and sometimes it is negative and restrictive and doth consist of something not to be done the not doing in the first case and doing in the latter case causeth the obligation to bee forfeit and the doing in the first case and not doing in the latter saveth the obligation If one be bound in an obligation to me with condition to enfeoffe To make a feoffment Coo. super Lit. 207. plo â 7â 17 Ed. 4. 3. me of land and the obligoâ doe first make a Lease to me of it and afterwards he doth make a Release of it to me and my heires this is a good performance of the condition If a condition be to make me a feoffment of land and he tender me a feoffment and I refuse it by this the condition is performed So Tender and Refusall Perk. Sect. 784. Fitz. Barre 82. Perk. Sect. 758. 15 Ed. 4. 5. if the condition be to make a feoffment to my use and when it is is made I refuse it this is a good performance of the condition But if a man bind himselfe in an obligation to me with condition to make feoffment to a stranger and hee tender the feoffment to the stranger and he doth refuse it this is no good performance of the condition but the obligation is forfeit If the condition be to enfeoffe me and my wife and he tender it to me and I refuse it it seemes this is a good performance If one bind himselfe in an obligation to me with condition to 3 H. 7. 4. 4 H. 7. 4. Perk. Sect. 757. make me a feoffment of the Mannor of Dale by a day and he before the day grant a rent-charge out of the same Mannor to a stranger and afterwards and before the day also he doth make me a feoffment of the land this is a good performance of the condition and the grant of the rent no breach thereof But if the obligor sell away part of the Mannor before or make a feoffment to me but of a moity or a third part of the Mannor this is no good performance of the condition And if in this case the obligor before the day take a wife and before the day make his feoffment according to the condition but the marriage doth continue untill after the day in this case it seemes the condition is broken If the condition be that the obligor shall enfeoffe me of the Mannor Acceptance Perk. Sect. 749. 759. Dyer 1. Perk. Sect. 751. 9.
H 7. 1â 3 H 7. 4 27. H. 8. 1. 14. H. 8. 15. 10. H. 7. 14. of Dale and hee make a feoffment of the Mannor of Sale and I accept thereof it seemes this is no performance of the condition and that my acceptance in this case will not help So if the condition be to make me a feoffment of land and he give me mony a horse or the like in recompence of this and I accept thereof this is no good performance of the condition And the like Law is in all cases where the condition is to doe any collaterall thing as to account build a house enter into a Recognisance or the like and the obligor doth give and the obligee accept some other thing in liew thereof And so also it is where the condition is to make a feoffment to a stranger and the obligor give and the stranger take another thing in liew thereof But if the condition be to enfeoffe me of land such a day and he make and I take the feoffment before the day this is a good performance of the condition If the condition be to enfeoffe me or my heirs in the disjunctive 14 H. 8. 15. Coo. 5. 112. and the obligor enfeoffe me and my heires this is a good performance of the condition for it is impossible to enfeoffe my heirs whiles I live and when two things are to be done by a condition whereof the one is possible at the time of making the obligation and the other is not in this case it is sufficient if he doe the thing which is possible If the condition be to make me a feoffment or pay me 20 l. if the 21 Ed. 3. 9. obligor doe either of them it is sufficient But if the condition be to infeoffe me and pay me 20 l. in this case the obligor must do both or the condition will not be performed Et sic de similibus If the condition be that the obligor shall make me a sufficient Perk. Sect. ââ6 Kelw. 9â To make an Estate estate of land by the advise of W and S and they advise an insufficient estate and the obligor doe make the estate according to that advise this is a good performance of the condition But if the condition be that the obligor shall make a good and sure estate and he by advise of counsell make an estate that is not good and sure this is no good performance of the condition If the condition be that the obligor shall make me an estate of Fitz. Barre 55. land and make the estate to another by my appointment it seemes this is no performance of the condition If the condition be that the obligor or his feoffees in trust shall Trin. 17. âa B. K. make an estate to the obligee such a day and the feoffees doe it without the consent of the obligor this is no performance of the condition If the condition be to make further assurance and the obligor Pasche 8. âa Co. P. To make further assurance make further assurance upon condition without the agreement of the other party this is no good performance of the condition If the condition be to save me harmlesse from an Annuity wherewith To save harmlesse 37 H. 6. 18. Perk. Sect. 792. my land is charged and the obligor doth pay the same yearly and get me an Acquittance for the same from the party this is a good performance of the condition But if the condition bee to discharge me of such an Annuity in this case payment and procuring mee a Release is no good performance of the condition If the condition be that the Feoffees or Leassees of the Obligor To grant a rent or to procure a rent to be granted of such land which they have in trust shall grant me a rent-charge Peââ Sect. 790. Fitz. Barre 7. or release their right to mee before such a day and there be three Feoffees or Leassees and two of them only doe grant this rent or make this Release this is no good performance of the condition If the condition be that the Obligor shall purchase and procure Dyer 15. to me and my heires a rent of 5 l. per annum and a stranger hath such a rent out of my land and he doth get him to release this to me this is a good performance of the condition And if one be bound Fitz. Barre 77. with condition to grant me the rent and farm of such a Mill before Michaelmasse to be had and perceived untill I be paid 10 l. and before that time he lease the Mill to me at a rent and then suffer me to detaine so much of the rent it seemes this is a good performance of the condition If the condition be to deliver me a horse and the Obligor tender To deliver a horse the horse unto me and I refuse him hereby the condition is performed Coo. super Lit. 207. and so in all such like cases where the Obligor is to doe Tender and Refusall any collaterall thing as stand to an award or the like if the Obligor offer to doe it and the Obligee refuse the condition is performed and the Obligation discharged forever If the condition be to pay money at a day certaine and the To pay mony Obligor pay a little before night time enough for the receiver to Dyer 17. super Lit. 202. Broo. Condition 145. see to number his money by day light this is a good performance of the condition And if the condition be to pay money by or before a day paiment the last instant of the day before is a sufficient performance of the condition If the condition be to pay me a summe of money at a day certaine Perk. Sect. 748. 34 H. 6. 17. 21 Ed. 3. 13 Coo. 5. 117. 9. 79. Broo. Oblig 64. Acceptance and the Obligor pay me lesse money before the day or all the money before or at the day or give me something else before or at the day of paiment in liew thereof or pay me all the money or a lesser summe at the day appointed but in another place and not the place mentioned in the condition and I accept thereof in all these cases the condition is well performed But if a stranger to the condition doe so and I accept thereof this is no good performance of the condition as hath been * Trin. 36 Eliz. adjudged And if the Obligor pay lesse then the whole money at the day of paiment and the Obligee accept thereof this is no good performance of the condition * Adiudge 17 Eli. And if the thing to be done be a collaterall thing as to account or the like and the Obligor give unto the Obligee money or a horse in liew thereof and the Obligee accept it this is no good performance of the condition And if the Obligor pay the money to the
shall make an obligation to Coo. super Lut. 208 209. 10 H. 6. 16. 27 H. 8. 1. To make a âond the Obligee and the stranger tender it and the Obligee refuse it this is a good performance of the condition But if the condition be that the Obligor shall make an obligation to a stranger and the Obligor tender it and the stranger refuse it this is no performance of the condition If the condition be that the Obligor shall marry the daughter Perk. Sect. 756. 4 H. 7. 3. To marry a woman of the Obligee by a day and he doth tender himselfe and she doth refuse in this case the obligation is forfeit notwithstanding this tender and refusall If the condition be to deliver the key of a house and the quiet Dyer 219. To leave a Possession possession to I S to the use of the Obligee and the Obligor the house being rid and every one out of the house and the door locked doth deliver the key to I S it seemes this is no good performance of the condition but that I S or the Obligee or his deputy ought to come and receive the possession See more in Condition at Numb 9. and Covenant 6. If an Obligation that is single be not performed as when it is Coo. 8. 153. super Litt. 292. FN B. 267. â When a single Obligation shall be said to be broken and forseit or not to pay money at a day and the money is not paid the obligation is broken But if a man be bound by an obligation to pay money at severall dayes the obligation is not forseit nor can be sued untill all the dayes be past And yet if the condition of an obligation be to pay money at severall dayes and the Obligor doe fail to pay the money the first day in this case the Obligee may sue for the money due by the obligation presently If one be bound to pay money at a day certaine by a single obligation Broo. Oblig 62. Fait 105. Fitz. verdict 13. or Bill and the Obligor tender the money at the day to the Obligee so as he will give him his Bill or a Release for the money and the Obligee refuse so to doe and thereupon he doth refuse to pay the money in this case the obligation is not forseit for in this case the Obligor is not bound to pay the money unlesse the Obligee will give up his Bill or give him a Release But otherwise it is in case where one is bound to pay money by the condition of an obligation for there the Obligor must pay the money at his perill albeit the Obligee refuse to deliver up the obligation or to give a Release If one be bound to pay money on a single Bill at a day and the Obligor tender the money at the day to the Obligee and he refuse it in this case it seemes hee hath now remedy for his money Sed Quaere In all causes when the condition is not performed or broken 10. When the condition of an Obligation shall be said to be broken and the Obligation forfeit or not the obligation is forfeit and till then it cannot be forfeit And Broo. Oblig 17. therefore if one be bound in an obligation with condition to pay me 10. l. aâ Easter before the day come the obligation cannot bee forseit but if it bee not paid at he day the obligation is forseit And yet if the Obligee himselfe be the cause of the breach of the 4 H. 7 4. condition or the thing to be done by the condition is now become impossible by the act of God the obligation is now become without penalty As if in the old dayes I had been bound in an obligation to an Abbot that A should infeoffe him before Christmasse if A enter To make a Feoffment into Religion my Bond had been presently forfeited But otherwise it had been if A had been professed under the obedience of the Obligee himselfe If the condition be to make a Feoffment of land to me such a Perk. Sect. 8. 769. day and he be not upon the land ready to make the Feoffment albeit I come not there to receive it yet the condition is broken If the condition be that when the Obligor shall come to his 21 Ed. 3. 29. Cook 5. 112. Aunt he will enfeoffe the Obligee or the heirs of his body in this case he must doe it assoon as he doth come to her and the Obligee shall request the Feoffment or the obligation is forfeit If the condition be to enfeoffe me of a Mannor by a day and before the day the Obligor doth make a Feoffment of it to another 21 El. 4. 5. hereby the condition is broken and the Obligation forfeit and though the Obligor repurchase it againe before the day and then make the Feoffment yet this will not cure the breach If the condition be to enfeoffe B and C and one of them die 4 H. 7. 4. before the time bee past wherein it should bee done in this case hee must enfeoffe the survivor of them or the condition is broken If the condition bee that if the Obligor before Michaelmasse To make a Lease Dyer 347. make a Lease to the Obligee for thirty one yeares if A will assent and if hee will not assent then for twenty one yeares That then c. if A do not assent and the Lease for twenty one years be not made before Michaelmasse the obligation is forfeit If the condition be that the Obligor shall make me an estate To make an Estate 7 H. 6. 24. upon request and he tender me an estate before I request it and afterwards I doe request it and he doth refuse it in this case the condition is broken and the obligation forfeit If the condition be that the Obligor shall make me a good estate Pasche 8. Co. B. âa of land being Copi-hold land and he doth surrender it absolutely and the Homage when they present it doe present it conditionally this is no breach of the condition If the condition be to make a good estate of land in Fee-simple 4 H. 7. 4. Kel to A a woman before such a time and before such time the Obligor taketh A to wise and the day passe and no estate is made in this case the condition is broken and the obligation forfeit But if the obligation be made to the woman her selfe then it is dispensed with by the inter-marriage If the condition be that the Obligor and his sonne shall doe all Coo. 2. 3. Dver 337. such acts for the better assuring of land as the Obligee or his To make further assurance Counsell shall devise and the Obligee devise and tender a Release to the Obligor and his sonne to seale and they delay and refuse to seale it untill they can shew it to their Counsell to bee
be that I S shall serve me in all my honest and Perk. Sect. 772. 6 âd 4. 2. To serve lawfull commands or that I S shall be a good and honest servant to me one yeare in the first case if I command him nothing the condition is not broken albeit he never tender his service but in the last case it seemes he is to tender his service to me or otherwise the condition will be broken But if I refuse his service when it is tendred or hee die within the time the obligation is discharged And yet if hee depaât away within the time the condition is broken If the condition be that A shall marry B by a day and before 4 ãâã 7. ãâã Perk. 7ââ To marry a woman the day the obligor himselfe doth marry her in this case the condition is broken But if the obligee marry her before the day the obligation is discharged If the condition be to performe the covenantâ and paiments of a Deed and the deed doth containe a feoffment and this is on condition Briscoes case ââin ãâã Ia. c B. ãâã To performe covenants that if the feoffor pay such a summe of money he shall re-enter and he doth not pay it in this case this non-paiment is no breach of the condition But if A let land by Indenture to B for yeares rendring rent and B doth bind himselfe in an obligation Adâudged Griffin Scots case 5. Iac. B. R with condition to performe all the covenants contained in the Indenture and the rent is unpaid this is a breach of the condition and cause of forfeiture of the obligation If the condition be for the saâe keeping of prisoners and one Curia Trin 37. Eliz. To keep Prisoneââ doth escape that is in execution and in prison under colour of an execution or the like but in truth and in judgement of law is no prisoner this escape is no breach of the condition See more in âondition at Numb 10. If the condition of an obligation consist of two parts in the disjunctive or be to do one of two things before or at a day certain 11. By whaâ meanes and when an Obligation good in his original creation doth or may become void bee discharged or gone by matter ex post facto Or not âoo super Lâât 207. and both the things are possible at the time of the making of the obligation and before the time of performance one of the things is become impossible to be done by the act of God or by the act of the obligee himself in this case the obligation is discharged for ever And therefore if the condition be That if the obligor shall sell away his wives land if then he shall either in his Coo. 5. 12. 25 H. 7. 2. life time purchase to his wife and her heires and assignes land of as good right and value as the money by him received or had by or upon the said sale shall amount unto or else do and shall leave unto her the said I as Executrix by legacy or otherwise as much money as shall bee by him received upon such sale That then c. and the obligor doth sell his wives land and then his wife doth die before him so that he cannot leave her the money in this case the obligation is discharged and the husband is not bound to purchase land to her and her heires So if the condition be that if I S do not prove the suggestion of a Bill depending in the Court of requests before the utas of Hillary that then he shall pay 20l Dyer 262. 15 H 7. 4. 4 H. 7. 4. Agree 9. Iac. ãâã Bathurst case c. and I S die before the utas hereby the obligation is discharged for ever and he is not bound to pay the 20l. So if the condition be that if the obligor appeare in the Kings Bench in Eastern Terme or pay 20l. to the obligee at Michaelmas and the obligor die before Easter Terme hereby the obligation is discharged but if he do not appeare in Easter Terme and out-live the Term and die after then it seems the 20l. must be paid at Michaelmas or the obligation is forfeit So if the condition be that the obligor shall marry A before Easter or pay 20l. to the obligee at Michaelmas and A die or become madd before Easter or the obligee marry A himselfe and the marriage doth continue between them untill Easter be past in all these cases the obligation is discharged for ever But when the thing is become impossible by the act or laches of the obligor the law is otherwise And therefore if the condition be that A shall marry with B before Easter or that the obligor shall pay unto the obligee 20l. at Michaelmas and the obligor himselfe marry with B and the marriage doth continue untill after Easter hereby the obligation is not discharged So if the condition be to deliver up an obligation before Easter or give a release at Michaelmas and the obligor doth loose the oblgation or the obligation is burnt hereby the obligation is not discharged for if he doth not make the release at Michaelmas hee doth forfeit the obligation If the condition of an obligation consist of one part only or be 8 Ed. 4. 22. Coo. 5. 22. Perk Sect. 7â9 767. â4 H. 74. 22 Ed. ãâã to do one thing at a time certain and that thing at the time of the obligation maâe is possible to be done but afterwards and before the âime when it is to be perâormed it doth become impossible by the act of God or the act of the obligee in this case also the obligation is gone and discharged for ever And therefore if the condition be to appear in person such a day in such a Court and before the day the obligor die or at the day the water doth arise so high that he cannot travaile to the place without perill of life in these cases the obligation is discharged So if the condition be that A shall marry B before Easter and before the time A or B die or become madd or the obligee marry B and the marriage doth continue untill after the day in all these cases the obligation is discharged But if the thing become impossible by the act of the obligor contra And therefore if the condition be that the obligor shall appeare such a day and before and at the day hee is imprisoned through some default of his own so that he cannot appeare this will not excuse him * So held in the Exchequer 3. Cur. no more then in case where hee is so sick that he cannot appeare without perill of his life So if the condition be that B shall marry C before Easter and the obligor himselfe marry her and the marriage doth continue untill after the time in this case the obligation is forfeit * ãâã Co. B Hââ
chargable for so much as is committed to him as the testator or intestate himselfe for this cause the Executor is said to represent the person of the Testator for as to the estate committed to his trust he may charge others and be charged himself sue and be sued as the Testator himselfe might And the estate he hath by his Executorship is said to be in him to the use of the Testator and in his right and that he doth in the disposition of his estate is said to be in the right and to the use of the Testator also And the Administrator hath the same power and property over and in the goods and chattels the same remedy by Suit and so farr forth shall be charged as the Executor for they differ not in nature but in name only And yet the Administrator is but the Ordinaries deputy and he may revoke the Administration or call the Administrator to an account Swinb 12. Dâer 143. Coo. super Littl. 112. Litt. Sect. 168. Coo. ãâã â1 A Testament is of that nature that it doth much differ from 3. The nature and effect of a Testament and of a Codicill other acts and deeds that men doe and execute in their life times for albeit it be made sealed and published in never so solemn a manner yet it hath no life nor vertue in it untill the testators death for it is a Maxime in law Omne Testamentum morte consummatunâ est Et voluntas ambulatoria usque aâ extremum vitae exitum it is therefore resembled untill death to the interlocutory sentence and after death to the definitive sentence of a Iudge And hence it is said Sed legum servandafides suprema voluntas Quod mandat fieriqu jubet parere necesse est a ãâã ãâã ãâã Sect. 30â And for this cause a man may alter or make void his will at his pleasure and he may make as many new Wills and Testaments as he will and there is no meanes under the Sun to barre a man of this liberty b Lin. Sect. 168. Perk. Sect. â7â And the latter Testament doth alwaies revoke and overthrow the former but otherwise it is of a codicill c Swââb 13. 14. for a man may make as many of these as he will and make no Testament at all d Broo. Testament 20. or if he make a Testament he may afterwards make as many codiciâs as he will and one of them will not overthrow the other for in the first case they must be all annexed to the letters of administration and the Administrator must perform them and in the latter case they must be all annexed to the Testament and the Executor must take care to performe them e Plow 343 â44 A Testament therefore is said to have three degrees 1. An Inception which is the making of it 2. A Progression which is the publication of it 3. A Consummation which is the death of the testator f Coo. super Litt. 112. In Grants therefore the first is of greatest force but in Testaments the last is of greatest force But when a Testament is perfect by the death of the party it doth as effectually give and transferre estates and alter the property of lands and goods as acts executed by deed in the life time of the parties ãâã for hereby discents of lands are prevented and a man may make estates in Fee-simple ââitt Sect. 1â7 168. Fee-taile for life or yeares of lands tenements rents reversions or services as effectually as by deed and these estates also will be good without any Livery of Seisin or Attournement And hereby also rents and power to distraine for them may be reserved conditions created and annexed to eââates or things devised ãâã And therefore they that take by devises of lands are said to take ãâã Perk. Secâ 505. in the nature purchasors ãâã And if therefore a tenant in taile make a Feoffment to the use of himselfe in Fee and after devise the same ãâã Dyer 221. land to his wife in fee and die the sonne is not remitted though the Father die seised for the devise doth prevent the discent To the making of every good Testament these things are requisite Coo. 6. 23. 4. What shall âe said a good and a sufficient Testament Or not 1. That the Testator be a person able to make a Testament and not disabled for any speciall cause either in respect of his person mind or condition or in respect of the thing whereof the Testament is to be made And for this it must be knowne k Sâât 32. 34 H. 8. c. 5. Coo 4. 51. Broo. Testament 13. That a woman that hath a husband cannot make a Testament of her land First in respect of the person that doth make it and the thing whereof it is made And what Persons may make a Testament And of what things or not And how or goods except it be in some speciall cases for of her lands shee can make no Testament with or without her husbands consent l ãâã H. 7. 14. Perk. Sect. â0â Fitz. Executor ãâã of the goods and chattels she hath as Executrix to any other she may make an Executor without her husbands consent for if she do not so the Administration of them must be granted to the next of kin to the deceased Testator and shall not goe to the husband m Plow 526. Fitz. Executor 109. but of them she can make no devise with or without her husbands leave for they are not devisable and if shee doe devise them the devise is void And of the things due to the wife whereof she was not possessed during the marriage as things in action and the like it seemes she may make her Testament at least she may make her husband Executor n 12 H. ãâã 24. 18 Ed. 4. 11. Perk. sect 501. Fit Executor 5. 28. 109. Broo Testament ãâã of her Paraphonalia viz. A Fame Covert her necessary wearing apparell being that which is fit for one of her rank some say shee may make a Testament without her husbands leave others doubt of this howbeit all agree that shee and not his Executor shall have this after her husbands death and that the husband cannot give it away from her And of the goods and chattels her husband hath either by her or otherwise shee may not make a Testament without the licence and consent of her husband first had so to do But with his leave and consent she may make a Testament of his goods and make him her Executor if shee will And it is said also that if shee do make a Testament of his goods in truth without his leave and consent and he after her death suffer the Will to bee proved and deliver the goods accordingly in this case the Testament is good And yet if the husband give his wife leave to make a Testament of his goods and she do so he may
good Devise of the land in Fee-simple or Fee-taile * ãâã c. 9. âac New mans case And if a man make a Feoffment of his land to the use of his last Will and then devise that his Feoffees shall be seised to the use of I S this is a good Devise of the land per intentionem * Plow 54â Coo. 4. 66. 8. 95. And if I devise that I S shall have hold and occupy my land for his life this is a good Devise of the land for his life * Dyeâ ãâã 33. 128. Coo. 1. 83. 6. 42. Dyer 4. 33. If a man have a Lease for yeares of land and he devise his Lease or his Terme or his Ferme or the profits or occupation of the land by either of these Devises his whole lease and all his interest in the land is given as well as by any other forme of words 3. A man may devise lands tenements or hereditaments in possession in Fee for life or yeares or he may devise it in reversion viz. to one for life the remainder to another in Fee or in taile or in any other sort as a man may grant it by his Deed and such Devises are good But if the Fee-simple of land be devised to one the remainder cannot be devised to another albeit the first Devise be but conditionall And therefore if land be devised to I S and his heires and if he dye without heires that it shall remaine to I N and his heires this is a void remainder to I N. So if a man devise his land to I S in Fee ita quod solvat I N 20l. and if he faile that it shall remaine to I N and his heires this remainder to I N is void for if I S faile of payment I N shall not enter and have the land but the heire of the Devisor And yet perhaps a rent may be devised after this manner Howbeit if another man have a Rent-charge of 20l. a yeare issuing out of my land for Dyer â39 â4 20. yeares and he devise this unto me untill I have levied 100l by way of retainer the remainder to I S this remainder is not good 4. A Devise may be of lands goods or chattels simply and absolutely or conditionally the simple Devise also may be in praesenti Condition Pââw ãâã Peâk Sect. â63 See ãâã ãâã 8. 95 or in futuro And therefore as a Devise to one and his heires in praesenti is good so a Devise to one and his heires after the death of I S is good If I devise land to I S and his heires on condition as so as or ita quod he pay 10l to W S or paying to W S 10l or ad solvendum 10l to I S the Devise in all these cases is a good conditionall Devise and if the condition be not performed or broken the estate is ended and the heire may take advantage of it And therefore if lands be so given to the heire the condition is idle because none can enter but him And if I devise that if I S pay my Executors 20l. that hee shall have White acre to him and his heires for ever or for life c. this is a good Devise and after the contingent shall take effect accordingly and in this case and such like the heire of the Devisor must keep the land untill the contingent doe happen In like manner as if it bee a chattell the Executor shall keep the thing untill the condition bee performed and after a condition broken hâ shall take advantage of it 5. A Devise may be also with a limitation as in the cases before Limitation and as where one gives land to another and his heires so long as I S shall have heires of his body or where one doth devise his land to A his sonne and his heirs for ever paying to B his brother 20 l. when he shall come of age and then that he shall enter and have it to him and his heirs and if he die without heirs of his body the said B then living then that B and his heirs shall have it in the same manner And these and such like Devises are good 6. A man that is seised of land in Fee may devise that his Executors Coo. super Lit. 112. 11â 236. shall sell it or may devise it to his Exâcutors to sell or Devise it to his Executors and that they shall sell it and these Devises are good 7. A Devise may be of a rent or of land reserving Dyer 348. 100. 8. 84. 85. Clause of Distresse a rent with clause of Distresse As if a man Devise land to I S paying 10 l. by the yeare to his wife and if it be unpaid âarrantiae that she shall distraine for it this is a good Devise But a Warranty cannot be made by a Wilâ And yet if a man devise land to Coo. super Litt. 38â another for life or in Taile reserving a rent in this case the heires of the Devisor shall be bound to the Warranty in Law and the Devisee shall take advantage of it 8. A man may devise his land Plow 523. 540. Dyeâ 357. Coo. 8. 94. 83 to one and devise a rent out of the same land to another and these Devises are good So a man may devise his land to one in Fee and after devise the same land to another for life or years and these are good Devises and may stand together So also if a man in the fore-part of his Will by generall words devise all his lands to one in Fee and in the latter part of his Will devise some speciall part of it to another in Fee these Devises are good and shall stand together as for example if one have a Farm and in the first part of his Will give this Farm to one and in the latter part of his Will give one Close a part of this Farm to another or a man devise all his land in B which is in the County of Glouâ to A his daughter and the latter part of his Will deviseth all his land in the County of Glouâ in the possession of I S to his sonne and part of the land in B. is in the possession of I S and in Gloucestershire these are good Devises and shall stand together * 38 Bliz. Co. B. Agreed divers times But otherwise it is when the generall clause doth come last as where one doth give his land to A his daughter and in the latter part of his Will doth give all his land in Hartfordshire in the possession of I S to W and the land given to A is in Hartfordshire and in the possession of I S in this case the Devises will not stand together for the first Devise is void and so also it is where both the Devises are particular as where first in a mans Will he doth give White Acre to A and his heirs and after in
his Will he doth give White Acre to B and his heirs in this case the first Devise to A is void * Dyer in his Lecture 1. per Inst Dodr. And yet in this last case some have held the Devises shall be good and that A and B shall be Joint-tenants Ideo Quaere * Trin. 9. Ia. B R. If one devise all his land to I S and his heirs excepting 20 l. for seven years which he willeth shall be imployed for his children this is a good Devise of this summe of 20 l. a yeare 9. And a man may devise his land for so many yeares as I S shall name and after appoint that his Plow â23 546. sonne shall have it during the minority of his sonne and both these Devises may stand together And therefore if A be possessed of the Mannor of D for yeares and he deviseth all his Term to his eldest sonne if he live so long and if he die before he have any issue of his body then to his younger sonne in the same manner but withall he doth appoint that his wife shall have the occupation of the land untill his eldest sonne be 21 years of age these Devises shall stand together and the wife shall enjoy the Mannor for that time by this Devise 10. A man may devise a term of years by way of remainder as for example a man that is possessed of a term of Coo. 8. 95. Plow 519. 546. 516. 539. Dyer 277. years of land may devise it to I S for life the remainder to I D or to I S for life and that it shall after remaine to I D or to I S for so many years as he shall live and after to I D or in any such like manner these are good Devises both to the first and to him in remainder also by way of Executory Devise though not by way of remainder and in this case the first Devisee cannot hinder the second Devisee of the remnant of the terme But a man cannot by Deed Grant in his life time grant his term in this manner * Coo. 10. 8â â7 pasââ 17. âac B. R. child versâs Baily Nor if a man be possessed of a term can he entaile it by his Will And therefore if a man possessed of his terme of years of land Devise his term or his land to I S and his heires or to I S and the heirs of his body or to I S and his issues the remainder to I D this remainder is void and it is a good devise of the whole terme to I S and his Executors * 37 ãâã 6. 30. ãâã Broo. Sect. 388. 3â4 209. Also a chattell personall may as it seemes be devised to one for life and afterwards to another but yet so as the one must have the property only and the first but the occupation only as if one devise that I D shall have the occupation of his plate for his life and after that it shall remaine to I S this is a good Devise of the plate to I S. But if the thing it selfe be devised to the first of them then the Devise to the second is void for the gift of a chattell personall for one houre is the gift of it for ever And so it did seeme in the Lady Daves case Hill 9. Car. B. R. 11. A Legacy of goods or chattels may be given Swinb part 4. Sect. â7 to or untill a certaine time or from or after a time certaine or incertaine as for five years or from or untill the marriage of A or the like and these Dispositions are good 12. A man may Plow 524. devise his land for so many yeares as I S shall name and if I S doe name a certaine number of yeares in the life time of the Devisor this will bee a good Devise But if one devise his land for so many yeares as his Executor shall name it seemes this Devise is not good 6. As touching the sixth thing required in a good Devise these things are to be known 1. That Lands Tenements Dyer 371. Coo. 8. 83. 6. 16. super Litt. 111. Perk. Sect. 496. 500. 497. 538. Lit. Sect. 167. Dyer 155. old N. ãâã Sixthly in respect of matteâ touching the thing devised and what may be devised and by what name and Heriditaments for the nature and quality of them are devisable as well as other things And therefore by the custome of some places lands in possession reversion or remainder are devisable in Fee for life or yeares and a man that hath a Lease for yeares of land may devise the land at his pleasure during his term But by the ancient Common-Law in favour to heires the lands that a man had in Fee simple were not devisable by Testament except only in Devise of lands and teââements some speciall places by the custome of the place as Gavelkind-lands in Kent and lands within certaine Borrow-Townes as London Oxford c. and by the custome of those places such lands are devisable And in some places the custome is that they may devise their purchased lands only and in other places that they may devise their lands discended also And in some places the custome is that they may devise for life only and in other places that they may devise in Fee-simple and Fee-taile also And in all these places where such customes are they may devise their lands now as they might have done before the Statute for the Statute hath not destroyed their custome And therefore at this day they that have such lands in such places have their election eitheir to devise according to the power the custome doth give them or according to the power the Statute doth give them and in the first case the Devise is good against the heire for the whole and in the last case it is good against him for two parts in three only Also by the Perk. Sect. 496. 528. 538. Common-Law the Uses of lands were devisable as goods and chattels were as the pleasure of him that had them But otherwise and in other cases lands and tenements might not be devised and disposed by Will untill 32 H. 8. at which time the owners of lands tenements rents c. were by Act of Parliament enabled to devise and Stat. 32. H. 8 c 1. 34 H. 8. c. 5. dispose their lands as followeth He that hath any land in possession reversion or remainder by Socage Tenure and hath no land held in Capite or by Knights Service may devise all his land or any rent Common or other profit apprender out of it to any person in Fee-simple Fee-taile for life or years at his pleasure Hee that hath any such land held of the King in Capite by Knights Service or by Knights Service and not in Chiefe or held of any common person by Knights Service may devise two parts thereof in three to be devided or any rent c. out of
another this cannot be a good Devise of the land but perhaps the Devisee may in a Court of equity compell him that hath received the money to assure and settle the land according to the Devise And if Plow 344. Fitz. Devise 7. one devise another mans land this Devise is void but if he after the Devise made purchase this land now is the Devise good If a man bargaine and sell land to me on condition to reenter if he pay Adiudged Powâly Blakemans case me 10l and I covenant that I will not take the profits untill default of paiment and he make a Lease of 6 yeares of it to another and after breake the condition in this case I may devise this land and the devise will be good 14. A Seigniory Rent or the like Perk. Sect. 538. Litt. Sect. 585. 586. Dyer 253. 140. 5. 52. F. N. B. 121. Coo. super Litt. 111. 8. 83. 3. 33. thing is devisable as land is and will passe without the Attu nement Devise of Rent Coââmon Seignâory or the like of the Tenant The like Law is of a reversion also And a man may devise a Rent de novo issuing out of land or a Rent issuing out of land that is in âsse before And therefore if a man make a Lease for life or yeares rendring Rent the Lessor may devise this Rent So if if a Rent be granted to one and his heires the Grantee may devise this rent So a man that is seised of land in Fee may devise any rent out of it at his pleasure And therefore if a man that holdeth his land by Knights service in Cheiâe by his Will devise any Rent Common or other profit out of it this devise is good and that albeit the Rent or Profit doth amount to the value of the whole land as if one have 3 Acres of land worth 3s by the yeare and he devise 3s Rent out of it this is a good devise of the whole Rent but in this case the Rent shall issue out of two parts of the land and a third part shall be free and not charged with it but he may charge 2 parts in 3 parts of such land at his pleasure And so also it is if a man have lands holden by Knights service and not in Capite and other lands in Socage he may charge two parts of the Knights service land and all his Socage land at his pleasure And if a man have lands held in Socage and no lands held in Capite or by Knights service he may devise what rent he will out of it But a man cannot devise a Rent Common or any such like thing out of another mans land that is none of his owne nor out of that he hath nor And therefore if one devise 10l out of his Mannor of Dale when in truth he hath no such Mannor this Devise is void If a rent be granted to me for the life of I S it Oyeâ 253. seemes I may not devise this rent but that the Terre-tenant shall Occupant hold it as an Occupant 15. Where a man is seised of a house in Fee and may devise the house it selfe there it seemes he may devise Devise of houses dooâes glasse wainscot c. Coo. 4. 63. Perk. Sect. 512. 518. Coo. 11. Rich. Liâords case ââlw 88. the doores windowes wainscot or the like Incidents of the house And where a man may devise the land it selfe it seemes hee may devise the trees or grasse growing upon the land Quando licet âd quod majus videtur licere id quod minus But where the land it selfe is not devisable there such things incident or annexed to or growing or being upon it are not devisable And therefore the tenant in taile for life or yeares of land may not devise the houses or windowes doores or wainscot of houses or trees or grasse being or growing thereupon but this devise is void 16. Where a man Perk. Sect. 500. Dyer Devise of a Vse hath a Use that is not executed by the Statute of Uses but remains at the Common-law he may devise it as he may any other thing And therefore if one be possessed of a Terme of yeares and grant it over to another to the use of the Grantor he may dispose this use See Vses by his Will for it is in the nature of a Chattell But if a man have such a Use in jointenancy he cannot devise it 17. All manner of Swinb part 3. Sect. 5. Perk. Sect 511. 525 goods and chattels reall and personall may be devised by Testament Devise of goods and chattels And therefore Leases for years of lands Grants for yeares of Rent Common or the like Wardships of the bodies and lands of heirs of Tenants by tenure in Capite and by Knights Service Cattell as oxen sheepe horses c. gold silver money plate houshold-stuffe as beds pots panns platters c. corne wooll and implements of husbandry may be devised by Will and not only those a man hath at the time of the Devise but those a man is to have or may have afterwards And therefore it is held a man may give his corne that shall grow in such a ground the next yeare after his death or the wooll or lambs his flock of sheep shall yeild the next yeare after his death and that these Devises are good but if in this case there shall be no such corn growing in that ground or any lambs or wooll arising out of his âlock that yeare the Legacy is fruitlesse And yet if the Testator devise to I S 20 quarters of corne or 20 lambs and both will that the same shall be paid out of his corne that shall grow or out of his âlock the next yeare and there be not so much corne or not so many lambs or not any at all growing or arising yet this is a good Devise and the things must be paid In like manner if a man give to I S a horse or a yoke of oxen in this case albeit the Testator have neither horse nor yoke of oxen yet the Devise is good and must be performed 18. Things in action as debts and the like albeit they be not grantable by deed in the life time of the party yet are ãâã of debts and things in action possibilities and incertainties they devisable by Will And therefore if the Testator doth by his Will give any debt due to him on an obligation or on a contract or the like this Devise is good And the thing devised may bee had thus the Testator may if he will make the Legatury Executor as to that debt or if he do not the Legatary may sue the Executor in the Spirituall Court or in some Court of equity and thereby compell the Executor either to recover it himself and so to pay it to the Legatary or to give the Legatary power to sue for and recover it himselfe in the Executors
name But if it be such a cause of action as is altogether uncertain as where a man may have an action against another for taking away his goods or to compell him to make an account or the like this is such a cause of action as is not deviseable And yet possibilities and incertainties are in divers cases devisable Perk. Sect. 527. Litt. B100 Sect. 437. Dyer 272. Plow 520. And therefore if one have money to be paid him on a Mortgage he may devise this money when it comes as if I enâeosse a stranger of land upon condition that if he do not pay me 20l. such a day that I may reenter in this case I may devise this 20l. if it be paid and the Devise is good albeit it be made before the day of paiment come Childs case 17. Ia. B. R. And if a man be possessed of a Terme of yeares and devise all the residue of that Terme of yeares that shall be to come at the time of his death this Devise is good and yet such a Grant by deed is void Grant * But a meer possibility and a thing altogether incertain is no more devisable by will then it is grantable by deed 19. Emblements i. e. the Devise of Emblements Perk. Sect. 520. 521. c. See in grantâ corne that is sowen and growing upon a mans ground at the time of his death and which himselfe should have reaped if he had lived to the harvest as in most cases he shall where he doth sowe it are devisable And therefore if a man have land in Fee simple Fee taile for life or yeares and sowe it with corne he may devise the corne at his death to whom he please And yet if Lessee for yeares sowe his land so little while before his Terme expire that it cannot be âipe before the end of the Terme and he die it seemes he cannot devise this corne for if he had lived he could not have reaped it after the end of the Terme 20. Obligations Counterpanes of Leases and Perk. Sect. 527. such like things also are devisable but in this case the Devisee cannot Devise of Obligations Counterpanes of Leaseâ c. sue upon the Obligation in his own name nor enter for the condition broken upon the Lease if there he cause but he may cancell give sell or deliver up the Obligation or Counterpane to the Obligor or Lessee And finally whatsoever shall come to the Executor See inâââ in Numb after the death of the Testator in the right of his Executorship may be devised by the last Will and Testament of the Testator 21. Devise ofâ the things a man hath in Iointure wiâh another Perk. Sect. 52. Litt. Sect. 287. Doct. St. 167. The goods and chattels that a man hath joyntly with another are not devisable And therefore if there be two Iointenants of goods or chattels as where such things are given to two or two do buy such things together and one of them devise his part of the things to a stranger this Devise is void Insomuch that if in this case the Testator make the other Ioyntenant his Executor the Will as to this is void and he shall not be charged as Executor for those goods but he shall have them altogether by right of survivorship 22. The Devise of the things a man hath in anothââs right Plow 525. B100 Administrator 7. ãâã Adm. ãâã goods and chattels that a man hath in anothers right are not devisable and therefore an Executor or Administrator cannot devise the goods and chattels he hath as Executor or Administrator for such a Devise is void Howbeit the Executor may appoint an Executor of the goods of the first Testator which the Administrator cannot do And of the profits that do arise by the goods and chattels the Executor or administrator hath during the time of his Administration he may make disposition The goods and chattels belonging to Colledges and Hospitals may not be devised by the Testaments of the Masters or governours thereof noâ the goods and chattels belonging Doct. St. lib. 2. c. 39. Perk. Sect. 4â6 49â 49â to other Corporations by the Mayors Bayliffes or Heads thereof * And the goods and chattels that Churchwardens have in the right of the Church are not devisable * Perk. Sect. 560. Doct ât c. 7. All the chattels reall that a man Husband and wife hath in the right of his wife by her means and all the Obligations that are made to her alone before or during the time of the Coverture and the chattels reall or personall that his wife hath as Executrix to any other are not devisable by the Testament of the husband But all the chattels personall that a man hath by his wife which she hath in her own right and the debts due upon Obligations made to the husband and wife both during the Coverture are devisable by the Testament of the husband 23. Such things as are annexed and incident Devise of things that are incident and annexed to some other thing to a Freehold or inheritance so that it cannot be severed from Perk. Sect. 526. Relw. 88. See before it by him that hath the propertie of them as wainscot and glasse to houses and the like are not devisable but in such cases where the thing it selfe to which it is annexed is devisable 24. The goods and chattels that are another mans are not devisable and therefore Plow Granthams case Câo. super Litt. 185. Coo. super Litt. 308 Devise of things that are not the Devisors or belong not unto his Executor if a man give another mans horse it is is a void Devise So if one devise the things that by speciall custome of some places as the heire loomes do belong to the heire this Devise is void for it is not devisable from him 25. If a Bishop have a Ward belonging to his Trin. 13. Ia. Curia B. R. Bishoprick fallen he may devise it but if a Church of his become void in his life time he cannot devise the Presentation If a Parson of a Church have the Advowson in Fee and he devise that his Executors Devise of a Preâentation to a Church two or three of them shall present at the next avoydance this is a good Devise 26. All these things before that are devisable Swinb part 7. c. 5. Plow 525. Perk. Sect. 500. when they are devised must be named and devised either by their proper name or otherwise described by some other matter whereby Mistake or error in the ãâã devised the mind of the Testator may be known and discerned for if he erre and mistaken in the name or substance of the thing devised or it be so incertainly devised and described that it cannot be perceived what he intendeth the Devise is void And therefore if one devise a piece of ground by the name of a Mesuage
bee devised to a man and his wife and to one heire of their body and the heire of the body of that heire by this Devise Coo. super Litt. 22. Deed. an estate Taile is made in a Will as well as in a Deed. If a man devise his land thus I give White acre to A my sonne M. 18. Iac. B R. Gilberts case and his heires Black acre to B my sonne and his heires and Green acre to C my sonne and his heires provided that if all my said sons die without issue of their bodies that then all my said lands shall goe to M my wife and her heires by this Devise they have all of them estates in Taile of their land and as it seems crosse remainders to either of them of the land of each other If one devise his land thus I give my land in Dale to I S and if Coâ 9. 128. he die without issue male of his body then that it shall remain over to I D by this Devise I S hath an estate Taile If a man hath issue three sonnes and devise his land thus viz. one part to two of his sonnes in Taile and another part to his third Litt. Broo. Sect. 4ââ Broo. Devise 38. Done 44. sonne in Taile and that neither of them shall sell his part but that either of them shall be heire to other in this case and by this Devise either of them hath an estate Taile and if one of them dye without issue his part shall not revert to the eldest but shall remain to the other sonne for it is an implied remainder If there be husband and wife and they have issue a sonne and a Coo. super Litt. 26. daughter and the husband die and land is devised to the wife and the heires of her late husband on her body begotten in this case and by this Devise the wife hath only an estate for life the sonne an estate in Taile and so also the daughter in case he die without issue If one devise to I S that if he and his heires of his body be not For life Coo. supâr Litt. 147. 8. 85. paid 20l. rent yearely he and they shall distraine c. by this Devise I S hath an estate taile of this rent But if the Devise be that if I S be not paid 20l. yearly he shall distrain c. by this Devise I S hath only an estate for life So if one devise a rent of 10 l. out of his land to be paid quarterly and say not how long the rent shall continue this is but an estate for life If one devise his land thus I give my land in Dale to I S for his life or to I S without any more words or to I S and his Fitz. Devise 16. Coo. 6. 16. Perk. Sect. 577. heire in the singular number or I S and his children and I S hath children at the time of the Devise or to I S and his successors I S being a naturall person by all these and such like Devises I S hath only an estate for life in the thing devised * Mich. 13. Ia. B. R. Dyer sect 307. But if the Testator have only a Terme of yeares in the land whereof the Devise is made and devise this land to I S and doth not say for what time it seemes that by this Devise the whole Terme is devised unlesse the intent doth appeare to be otherwise And if one devise land whereof a man is seised in Fee to I S paying 10l to I D by this Devise albeit there be no estate expressed yet I S hath the Fee-simple of the land in respect of the paiment of See before Litt. Broo. Sect. 406. 125. the money But if the intent of the Testator appeare to be that I S shall have the land but for his life contra for there the consideraration will not alter the estate expressed upon the gift If land be devised thus I give my land in Dale to I S and his Deed assignes without more words by this Devise is held to be given Coo. super Litt. 9. 4. 29. no more but an estate for life by construction upon a Will as it is upon a Deed. And yet in the New Termes of the Law tit Devise the contraray is affirmed Ideo quâre If one devise thus I will that I S shall have and occupy my land Pasche 9. Iac Newmans case in Dale and say not how long by this Devise I S shall have the land for his life * Dyer 342. But if I devise that I S shall enter into my land and say no more by this Devise I S hath no estate at all but power to enter into the land only If a man have a sonne and a daughter and dieth and lands are Coo. super Litt. 2â devised to the daughter and the heires females of the body of the Father by this Devise the daughter hath only an estate for her life for there is no such person for she is not heire If one devise his land thus I give my land in Dale to I S for Coo. 1. 6â his life and after to the next right heire of I S in the singular number and to his right heires for ever by this devise I S hath only an estate for life So if one devise land to I S for life and after to the next heire male of I S and to the heires males of the body of such next heire male by this devise I S hath an estate for life only but if it be thus I give my land in Dale to I S for his life and after to the heires or to the right heires of I S by these devises I S hath the Fee-simple of the land And if it be to I S for life and after to the heires males of I S by this I S hath an estate Taile If one devise land to I S and E his wife and after their decease or the remainder to their children by this devise whether they Coo. 6. 16â have or have not children at the time I S and E his wife have estates for their lives only If one devise a Moity of his land to his wife for life and the other Curiaâ Ia. Co. B. Moity to his second sonne and after by another clause doth devise it all to his sonne after the death of his wife by this Devise the sonne hath only an estate for life after the wives death and no more If one devise his land to I S in Fee after the death of I B being Broo. Devise 48. 52. Litt. Broo. 107. 13 H. 7. 13. New termes of the Law tit Devise Plow 158. 414. 521. By Implication his sonne and heire apparant by this Devise I B hath an estate for ife by implication and untill the Devise take effect the law gives it to him by discent And so also it seemes the law is where
it all If one give 10 l. to his Parish Church and at the time of the Will Swinb 316. made hee live in one Parish and after he doth remove into another Parish and die there by this Devise the Parish where he lived before and not where hee dyed shall have this 10 l. If one devise a third part of all his goods and chattels by this Dâer â9â 164. Secondly in respect of the thing Devise some say doth passe and is given no more but a cleare third part after debts and Legacies paid but it seemes a third part of the whole is hereby devised out of which the debts must first be paid by Law If one devise to another all his goods and chattels or all his plate Plow 343. Swinb 31â or all of any other thing in generall by this Devise doth passe and is given not only all the Testator hath of that thing at the time of the making of the Will but also all he hath at the time of his death and not only what he hath in possession but also what he hath not in possession But if one devise all his goods or all his plate c. in such a place or in the occupation of I S by this Devise none other will passe but what are in that place and in the occupation of I S. If one have a term of years of a portion of Tithes in Dalâ and have By the opinion of divers Lawyers a term of years of land in Dale and he devise all his lands and tenements in Dale and all his estate therein to I S by this Devise the the portion of Tithes doth not passe for it is neither land nor tenement but by Devise of all his heriditaments perhaps it may passe Sed Quâre If one devise to I S all his goods and chattels by this devise doth Poâtman versus Willâs Pasche 36 Eliz. Co. B. Coo. super Litt. 118. Swinb part 7. c. 10. passe and is given all his estate active and passive except land of inheritance and free-hold estates and such things as depend thereupon as Leases for years Wardships by Tenure in Capite or by Knights Service gold silver plate houshold-stuffe cattell corn debts and the like and if one devise to I S all his goods or all his chattels by either of these is devised as much as by both of them If one devise to I S all his moveables by this Devise doth passe Swinb 305. 306. 307. all his personall goods both quick and dead which either move themselves as horses sheep and the like or may be moved by another as plate houshold-stuffe corn in the garners and barnes or in the sheafe c. * Agree Hâll 9. Car. Co. B. also all Bonds and Especialties and by a Devise of Immovables doth passe Leases Rents grasse and the like but not any of those things that doe passe by the Devise of moveables but debts will not passe by either of these Devises If one devise to another all his houshold-stuffe hereby doth Swinb 313. part 7. c. 10. passe his plate coaches tables stooles formes beds vessels of wood brasâe pewter earth and the like but not his apparrell books weapons tooles for Artificers cattell victuals corn plow-geere and the like by a Devise of all utensils it is agreed that plate and jewels Dyer 59. doe not passe If a man devise to I S one of his horses or a horse by this âevise Election Swinb 302. I S shall have the election if there be more then one which horse he will have but if the devise be thus I will that my Executor shall deliver to I S one of my horses in this case the Executor hath the election and he may deliver which of them he will If one devise thus I give to I S my corn growing in such a ground Swinb 94. this next year or the lambs of my âlock this next year by these Devises the Legatee shall have no more but what doth grow that year But if he devise so many quarters of corn or so many lambs in these cases so much must be paid howsoever If one have a Lease for yeares of land and devise it to I S for life Thirdly ãâã Coo. 4. 66. Plow 520. Coo. 7. 23. by this Devise the whole terme is devised and I S the Devisee shall have the whole terme if he live so long and yet I S shall not have an estate for life by this Devise and so also it seemes the Law is upon a Grant by Deed after this manner And if a man possessed of a Dyer 307 terme of years of land devise his term or his Lease or the land it Dââd selfe by a Devise in either of these termes the whole terme doth passe If a man be possessed of two houses for yeares and devise them to his wife for her life if she live sole the remainder to I S and if shee Pasche 14. Iac. B. R. Gough Haywards case marry then that she shal have one of them during the rest of the term and then addeth these words and also I will that she shall have 20 l. a year out of my other lands in this case and by this Devise it seems the Annuity shall continue during the term Sed Quaere for the Judges were divided in this point If a Legacie be given and no time is set for the paiment or doing of it if it be simple it must be paid and done presently if it be Plow 540. Swinb 354. conditionall and upon a condition precedent it must be paid or done the time the condition is first extant and if there be a time set for the paiment or doing of it it must be paid or done at the time appointed See more in Exposition of Deeds Numb 15. Devise of Lands to Executors to sell to pay debts Legacies c. are Coo. super Litt. 236. 112 113. 15 H. 7. 12. Dyer 177. 219. Kelw. 107 108. Perk. Sect. 513. 542. Litt. Broo. Sect. 371. Kelw. 40. 45. some of them after one manner and some after another for sometimes 9. Devise of lands to Executors or others to sell or that Executors or others âhâll sell or other ewile dispose them how this shall bee taken and what sale and disposition shall be good or not the Devise is thus I will that my Executors or that A B and C my Executors shall sell my land and sometimes the Devise is thus I give my land to my Executors to be sold or to the end that they shall sell it in the first case the Executors have only an authority and no interest and therfore in that case the land doth discend in the interim to the heir of the Devisor and he shall have the profits of the land untill it be sold and if it be never sold he shall ever have the profits of it and in this case they may sell
Executor And if one Executor of many to whom a terme of yeares of land is devised occupy the same alone and the rest intermeddâe not with the profits thereof albeit he make no declaration it is said this is a good declaration of his election to have it as Legatee But if a terme of yeares be given to the wife of I S and I S be made Executor and he enter generally and after makes his Testament and never speakes of this terme this is ãâã declaration of his Election to have it as Legatee neither shall the terme be so deemed in him but as Executor But in these cases this must be heeded that howsoever the Executor hath power to take as Executor or as Legatee yet he cannot take as Legatee to prejudice Creditors in their debts but the same things they so take as a Legacy if there be not Assets enough besides shall be said to be Assets in their hands as to the Creditor for the satisfaction and paiment of their debts If a man devise that after his Debts and Legacies paid his wife shall have all the residue of his goods and chattels to distribute for Dyer 331. his Sarle c. and make his wife his Executor in this case it is said she hath no election but she must take as Executor and cannot take as Legatee When a Devise of goods or chattels is well made the assent of 1â Assent Quid. the Executor is necessary to the perfection thereof for untill then the Legatee may not have or meddle with the thing devised And this Assent is defined to be the agrement of an Executor or Administrator Coo. 10. â7 52. that a Legatee shall have the thing bequeathed unto him And it is either expresse i. e. when the Executor or Administrator doth by expresse words agree to the Devise Or implied i. e. when the Executor doth not by words but by some overâ act declare his assent that the Legatee shall have the thing devised unto him This agreement of the Executor or Administrator is not needfull in the case of Devise of land for if a man be seised of land 16. Where aââ Assent is necessary or not And where a man may enter into the lands or take the goods or chattels devised unto him without the assent or delivery of the Executor And what shall be said a sufficienâ Assent to execuâe a Legacy or not in Fee-simple and deviseth to another in Fee-simple Fee-taile Coo. super Litt. 111. Perk. Sect. 576. 578. 579. Swinb 134. 135. for terme of life or yeares in these cases the Devisee may enter into the land devised without any leave of the Executor or Administrator and in truth in these cases the Free-hold or estate is said to be in the Devisee before his entry and therefore if the heire enter first the Devisee may enter upon him and put him out And in case where land is devised by the custome of a place if the heire enter first and keep the Devisee out the Devisee may have a writ of Ex gravi querela against him for his relief and this writ is incident to that custome But if a Devisee enter first into the land devised unto him and then the heire of the Devisor enter upoâ him then the Devisee may take his remedy at the Common law as in other cases And with these things the Ordinary Executor or Administrator is not to intermeddle But regularly a devisee cannot nor may not have or take any chattel real or personall Perk. Sect. 570. Coo. super Litt. 211. Plow 525. 20. Ed. 4. 9 devised to him without the agreement or delivery of the Executor or Administrator And by this assent if the Devise be good for otherwise an assent will not make it good the Devise is perfected and the Legacy executed And yet if the Legatee have the thing devised in his own hands or if there be a speciall clause in the Will Swinb 353. Broo. tit devise 6. 30. giving him authority to take it himselfe or it be a Legacy to good and godly uses or the thing given be like to perish on the ground being corne or the like and there be assets besides to pay all the debts in these cases perhaps the Assent of the Executor or Administrator may not be necessary but the Legatee may take the thing devised without his agreement And if a Legacy be given to one of the Executors themselves he may take it without any assent of his Perk. Sect. 5ââ Co-executors and that before Administration also if he will If there be many Executors the assent of any one of them is sufficient and if there be but one and he be dead the assent of his executor is sufficient or if he die intestate the assent of the Administrator de bonis non administratis of the first Testator is sufficient or the Legatee himselfe in this case where the Executor dieth intestate or where he doth refuse to take upon him the Administration may take Administration himselfe and by publique declaration assent to his own Legacy And if a man be Executor and Legatee both he may assent to and take the Legacy and yet waive the Executorship and this assent is good And therefore if the Legatee of a term of years be made Executor and he enter and claim and occupy the land Dyer 372 367. by force of the Devise and dye before Probate of the Will the Executor of the Legatee and not the Ordinary shall have this term and yet it seems the Executor may not do this in prejudice of a Creditor to hinder him of his debt Any agreement in word or deed will suffice to make aâ assent and Coo. 4. 2â execute a Devise Let Executors take hâed therefore for if an Executor A Câvâaâ for Executors do but agree that the Legatee of a term of years of land shall take the profits thereof and that but for a time only or say to the Legatee God send you joy of it or I intend you shall have it according to the Devise or the like this is a good assent to execute the Legacy And if the Executor agree that the Legatee and a âââanger together shall take the profits of the land or the thing devised this is a good assent And it seemes that whatsoever verball agreement will amount to an Atturnment may make an assent to a Legacy See Atturnment If therefore the Executor agree to the Legacy upon certain Termes and conditions this is agreed to be a good and absolute assent Per 2 Iustices M. 37. 38. Eliz. B. R. Coo. 4 28 to the Legacy If a terme of years be given to the wife of the Testator during the minority of his eldest sonne to the intent that she with the profits Plow 5â0 thereof shall breed up his children the remainder of the âame term to the same eldest sonne and she is made Executrix and she entâr
through the posts or walls tables dormant furnaces of lead and brasse and fats in a brew and die house standing and fastned to the walls or standing in or fastned to the ground in the middle of the house though fastned to no wall a copper or lead fixed to the house the doores within and without that are hanging and serving to any part of the house shall not goe to the Executor or Administrator to be divided and sold from the house albeit the Executor or Administrator have a Lease for yeeres of the house and by that meanes hath the house also But if the glasse be from the windowes or there be wainscot loose or doores more then are used that are not hanging or the like these things shall go to the Executor or Administrator If I make a feoffment to I S of land on condition that if he Co 3. 5. 96. Fitz. Executor 8. pay me my heires or assignes or my heires executors or administrators a 100l such a day that the Feoffment shall be void and I dye before the time of paiment in this case if this money be paid at the day my Executor or Administrator and not my heire shall have it If one be seised in Fee of lands whereon there are trees growing and he make a Feoffment of the land to me excepting the trees Coo. 4. 63. 11. 48. and afterwards he doth sell me the trees for ever and after I dye in this case my Executor or Administrator shall not have these trees as they shall in case where the Feoffor doth grant them to me for yeares And if I be seised of land in Fee and I make a Lease for life or yeares of it excepting the trees and afterwards I dye in this case my Executor or Administrator shall not have these trees but they shall goe in both cases with the land If a Lease be made for life or yeares of land whereon a house is standing or timber is growing and the house is prostrate or the Coo. 4. 63. 11. 81. 84. timber is cut or fallen down by whomsoever or what means soever it be the materials of this house and this timber is now become a chattell and therefore if the Lease be without impeachment of waste it shall goe to the Lessee and after his death to his Executor or Administrator but if the Lease be otherwise it shall goe to the Lessor and after his death to his Executor or Administrator But if the timber be cut for reparations only or the Lessee will imploy the materials of the house to build it againe and the Lease do continue it may be so imployed and then the Executor or Administrator of the Lessor may not take it If one be seised in Fee-simple of ground whereon trees do grow and he sell me these trees for money and afterwards I dye before Coo. 11. 50. Perk. Sect. 58. they be cut in this case my Executor or Administrator shall have and may cut them If the Kings teâant by Knights service in Capite be seised of a Mannor whereunto an Advowâon is appendant and the Church become Coo. super Litt. 388. void and the tenant dyeth his heire within age in this case the King and not the Executor or Administrator of the tenant shall have the Presentation And yet if in this case the land be held of a common person the executor or administrator and not the Gardian shall have it In all cases regularly where a man doth sowe land whereof and wherein he hath such an estate as may perhaps continue untill the Dyer 31â Doct. St. 35. Perk. Sect. 59. corne be ripe if he that doth sowe it die before it be cut and severed his executor or administrator shall have it as if the husband sowe the land whereof he hath an estate in Fee-simple Fee-taile for life or for a certain number of years in the right of his wife and dye ere it be ripe in this case the Executor or Administrator of the husband and not the wife shall have it And if one that holdeth land fot the life of I S sowe the land and I S die ere it be ripe and cut the Executor or Administrator of the tenant shall have this corn And if tenant in Tail or in Dower sowe the land they do so hold and dye ere it be cut the Executor or Administrator not the issue in tail nor the heir or him in reversion shall have it So if the husband make a Feossment in Fee to the use of himself for life and after of his wife c. and he sowe the land and after die his Executor or Administrator not his wife shall have the corn But if a Feoffment be made to the use of the husband and wife together in Fee or for life and the husband sowe the land in this case the wife not the Executor or Administrator of the husband shall have the corn So if Lessee for years certain sow the land a little before the end of his term and the term end before it be cut in this case he that is to have the land not the Executor or Administrator of the Lessee for years shall have the corn If there be Tenant for life the remainder in Fee of a Tenancy Coo. 2. 93. and the Lord grant his Seigniory for life and after he in remainder in Fee of the Tenancy dye his heir within age and after the Lord die and after the Tenant for life die in this case the heir and not the Executor or Administrator of the Lord shall have the Wardship If one be seised of land in Fee and make a Lease for years rendring Hill 7. Iac. B. R. per Câriam Rent at Michaelmas or within 10 daies after and the Lessor happen to die during the term after Michaelmas and before the 10 daies expired in this case the heire of the Lessor and not his Executor or Administrator shall have the last half years Rent due at Michaelmas If one grant a Rent in Fee and grant withall that if the Rent F. N. B. 120. âitz Covenant 17. Dâer 24. be behind the Grantor shall forfeit 205. nomine poenae to the Grantee and his heirs and the Rent is behind and the Grantee die in this case his Executor or Administrator not his heir shall have this money that is forfeit already So if one make a Feoffment in Fee of land and the Feoffee doth covenant to do divers things to the Feoffor Et quoties defectus fuerit c. that he shall forfeit to him and his heirs 5l and the Feoffee doth fail and breake his covenant divers wayes and the Feoffor dieth in this case his Executor or Administrator not his heir shall have and recover all the forfeitures that are past If a Bishop Parson Vicar Master of Hospitall or any body politique be possessed of any goods or chattels in their owne right Coo. 4. 63. Perk. Sect. 58. Coo. super Litâ 46.
Seventhly in respect of the manner and ârame of the words used in the raising of uses and what manner of uses may be made or not making and raising of uses wherein there is much regard to the minde and intention of parties For if one covenant in consideration Coo. 3. 91. of 20 l. paid him by I S to stand seised of land to the use of I S and his heires or if one covenant that I S and his heires shall have his land if this Deed be inrolled this is a good bargain and sale to raise the use and will doe it as well as when it is made by the words bargaine and sell So if one for good consideration by words Coo. 2. in Sir Rowland Hay wards case Wards versus Lambert Co. B. Pasche 37 Eliz. of Demise and Grant make a Lease of his land for a term of years hereby the use will rise to the Leassee as well as if the Lease were made by the words bargaine and sell Et sio de similibus And yet if one by words of bargaine and sell convey his land to his son Inrolment no use will arise by this except there be money paid and the Deed be inrolled And if one in consideration of money grant his land to his sonne or any other by the word enfeoffe no use will rise by this unlesse Livery of Seisin be made thereupon because the intent of the parties in these cases doth appeare to be to passe it in another manner And if in the last case Livery of Seisin bee made Resolved in Stiles case 3â Eliz. then the use shall be guyded by Law that is if nothing be given it shall be to the use of the Feoffor and not amount to a limitation of use to the sonne * 21 H. â 18. Plow 308 301. Broo. Feost mental use 16. If one covenant with his sonne that his land shall remaine or that his land shall discend to him this is a good covenant to raise the use according to the limitation And yet if one covenant with his sonne upon his marriage that his land shall remaine revert or discend to his sonne in Fee or in Fee-Taile by this no use will be raised because it is so incertaine but perhaps this may amount to a covenant whereupon the sonne may have an Action of Covenant If I covenant for me and my heires that Covenant I and my heires and all others that are seised shall bee thereof seised to the use of c. this is a good covenant to raise the use albeit it be in words of the future tense If I covenant with my Dyer 374. eldest sonne and strangers to convey my land to the same strangers to the use of my selfe for life and after of my sonne in Taile c. and I grant by the Deed that the said persons seised of the said land shall be from thence seised to the said uses and none other use and no other conveyance is made it seemes this is sufficient to raise the use And yet if I be seised of land in Fee and Covenant with I S that A B and C D and their heires shall stand and be seised of this land to the use of c. it seemes this is not a good covenant to raise the uses If a Feoffment or other conveyance Coo. 1. 120. be made to the use of the Feoffor and the heires of his body on the body of M the wife of S T and for default of such issue to the use of him and the heirs of his body of S the now wife of W K and for default of such issue then to the use and performance of his last Will for 10 yeares immediatly after his death and after the term ended to the use of the Feoffees and their heirs during the life of W eldest sonne of the Feoffor and after his death to the use of the first issue male of the body of the Feoffor lawfully begotten and the heires of the body of such first issue male and for default of such first issue male to the second issue male c. in the same manner these are good limitations of uses So if a use be limited to I S for life without impeachment of waste and after to the use of Coo. 1. 90. B and C their Executors and Administrators for the term of twenty years and after to the use of C and the heires males of his body c. these are good uses So if a use be limited after this manner Coo. 6. 18. Lit. Sect. 462. 403. viz. to the use of a mans last Will and Testament or to the use of such person and persons and of such estate and estates as he shall limit and appoint by his last Will and Testament or to the use of such person and persons or to such uses and purposes as he shall by any writing under his hand and seale declare and appoint these are good limitations If I covenant with another in consideration of Coo. 1. 176. blood c. that I will stand seised of my land to the use of such of my sonnes or such of my cousins as the Covenantee shall name in this case after a nomination made the use will rise well enough But if I for and in consideration of 10l or the like good consideration Incertainây covenant to stand seised of land to the use of such persons as the Covenantee shall name in this case albeit the Covenantee doe nominate some of my cousins or blood yet no use will rise by this for the incertainty of it If a Feoffment or other conveyance be to the use of I S and his heires provided that if the Foeffer pay 10l at such a day that then it shall be to the use of the Feoffer and his heirs this is a good limitation and the use will rise accordingly A use may be limitted to a woman durante viduitate sua and this Coo. 4. 3. is good If a man bee seised of two Manners and covenant to stand Coo. 11. 23. seised of the same to the uses following viz. of the one to the use of the Covenantor for his life and after to the use of his wife for life and after to the use of his eldest sonne in Taile c. And for the other Mannor to the use of his second son in Taile c. these are good limitations and the uses will rise accordingly If a man seised of land in Fee agree with another that a Fine Coo. 2. 69. 70. shall be levied of it and that the same shall be to the uses following viz. that I S the Conusor shall have one yearly âent of 50 l. during his life to be issuing out of the same land and as touching the land charged with the rent c. to the use of I D the Conusee untill default of payment of the said yearly rent and then to the use of I
S and his heirs for ever this is a good limitation and the use will rise accordingly Et sic de similibus If a Feoffment be made by I S to the uses in certaine Indentures Coo. 10. 78. Tripartite of the same date and therein is declared that it shall bee to the use of A for life without impeachment of Waste and after to the use of such Farmoâ or Tenants to whom he shall demise any part of the premises for life or lives or for any terme of yeares as in any such demise shall be limited and appointed and after to the use of the performance of the last Will of the said L and to the use of such person or persons severally to whom the said L by his last Will and Testament shall appoint any estate and after to the use of c. these are good uses and the estates shall rise accordingly A use may be limited upon condition and the condition may Coo. 4. 14. be annexed to one of the uses and not unto another If lands be conveyed to I S and the heires of his body to the Coo. supâ Lââ 19. use of I S and his heirs or to the use of a stranger and his heires this use will not rise in this manner And yet if lands be conveyed to I S and his heirs to the use of him and the heirs males of his body and after to the use of a stranger and his heires it seemes this is a good limitation If one grant lands by Deed to husband and wife To have and to Hill 6. Car. B R. Aâ iudge hold to the use of the husband and wife and of the heires of their two bodies this is a good estate Taile by this limitation albeit he doe not say Habendum to them and their heirs c. but Habendum to their uses but otherwise it were if the use were limited to a stranger in this manner If lands be conveyed by I S to I D to the use of I S or to the Dyeâ ãâã use of his wife for life or to the use of any other for life the remainder to another in Taile or for life the remainder to a third his Executors c. for six months and after the six months ended to the use of a fourth and his heires these are good limitations and the estates will rise accordingly If a use be limited to the Conusee of a Fine or a Recoveror in a Dyer 2ââ Recoverie untill he make a Lease for fourty yeares and after to the use of the Recoverees or Conusors and their heirs this is a good limitation and the use will rise accordingly Contingent uses or use in posse may be created as well as uses in esse and therefore if lands be conveyed to the use of a man and the Coo. 1. ââ Cââ case 13â wife he shall afterwards marry or to the use of his first second or third wife or to the use of I S for life and after to the use of the right heires of I D and I D is then living or to the use of I S for life and after to the use of him that shall bee his first heire male and the heires of the body of such heire male c. all these and such like are good uses but they are uses at the Common-Law Righthly in respect of the nature and quality of the ââe still and are not executed by the Statute untill they come in esse The last thing whereunto respect is to be had is the nature and qualiây of the use And herein it is to be known that a man may at this day by act executed in his life time or by his last Will and Testament at his death give his Lands Tenements or Hereditaments Coo. 1. 26. 3. 131. 4. 113. Charitable uses to any person or persons not corporate and their heires for any religious charitable or civill use as well as for any private use And therefore a man may so dispose of his lands for the finding of a Preacher erecting or maintenance of a Schoole reliefe and comfort of maimed souldiers sustenance of poore people reparations of Churches High-wayes Bridges discharging of the poore Inhabitants of a Village of the common charges to make a stock for poore Labourers iâ Husbandry and poore Apprentices and for the marriage of poore Virgins or other such like uses and these uses are not prohibited by any Statute And it is good policy upon every such Feoffment or estate to reserve to the Feoffor and his heires some small rent or to set down some small consideration But these uses are not such uses as are executed by the Statute of uses neither are they to bee resembled to the usâs aforesaid for in this case if there be any mis-imployment of the lands or breach of the trust by the parties trusted redresse is to be had by the Lord Chancellor or Lord Keeper by a speciall course of proceeding For which see the Statutes of 39 Eliz. chap. 6. 43. Eliz. chap. 9. 7 Iac. chap. 3. But if any man have heretofore given Superstitious Vââs or heretofore shall give any Lands Tenements of Hereditaments Stat. 15. R. 2. ch 5. 37. H. 8 ch 4. 1. Ed. 6. ch 14. by act executed in his life or by his last Will at his death to any person singular or corporate in Fee-simple Fee-Taile for life or yeares to the intent or upon condition to maintaine any superstitious use as to finde a Chaplaine and have the service of a Priest to say Masse or to have a Priest or other man to pray for the Soule of any dead man in such a Church or other place or to have or maintaine perpetuall obites lamps or torches c. to bee used at certaine times to help to save the souls or men out of the supposed Purgatory all these and such like uses are void and the lands that are so given to such superstitious uses are to be forfeited and given to the King and he shall have them and yet so that if there bee any charitable use intermixed with the superstitious use and they may bee distinguished the King shall have only so much as is given to the superstitious use and not that which is given to the charitable use also For which See Adams and Lamberts case at large Coo. 4. 104. Coo. 1. 175. 176. Dyer 109. 5. Declaration of Vses And where a use of land may hee declared upon any Assurance and ââ a shall be said a suffienâ dââlaration of such a uâe or not As touching the Declaration of Uses i e. the manifestation or agreement of the parties to what uses and intents the Assurance made shall be these things are to be known 1. That uses may be declared or averred on a Fine Feoffment or recovery of land but on a bargaine and sale of land no use may be declared or averred but what the Law doth make And upon a
covenant of uses no other use may be declared or averred but what is conâained within the Deed. 2. Every one may declare and dispose the use of land according to the estate that he hath in the land for the Coo. 2. 57. Dyer 290. declaration and disposition of the use doth ensue the ownership of the land sicut umbra sequitur corpus And at this day the use doth draw the land to it as the body or principall the shaddow or accessary And therefore the owner of the land or he from whom the land doth move ought to limit and declare the use of the land as if the husband and wife levie a fine of the land whereof he is seised in the right of his wife the husband alone may declare the use of this fine and this declaration shall bind the wife albeit her assent to the limitation of the uses doe not appeare if her disassent doth not appeare but in this case it is most proper to have a declaration of the uses by the husband and wife both for shee alone because she is sub potestate viri cannot alone declare or limit any use neither can the husband alone limit any use against her good will because he hath not the estate of the land And therefore if A and B his wife be seised of land in the right of his wife and shee without the consent of her husband covenant by Indenture with C and D 14 Martii 14 Eliz that a fine shall be Husband and wife levied of this land and that it shall be to the use of her self for life without impeachment of waste and after to the Conusees for their lives to the intent that they shall suffer I S to take the profits for his life with divers remainders over and afterwards and before the fine levied the husband alone by another Indenture 31 Febr. 22 Eliz. wherein the wife is named a party without the consent oâ his wife doth agree that a fine shall be levied to the use of him and his wife and after to the uses limited by the wives Indenture and after the fine is levied accordingly in this case albeit the variance be in one particular only and the limitations in all the âest of the uses and estates doe agree yet all the same limitations by both Indentures are void and the use upon the conveyance is left to construction of Law and therefore shall be to the wife and her heirs for ever And yet if the husband and wife agree in the limitation of the uses for part of the land and differ in the rest the limitations for so much as they agree in are good and void for the residueâ And in these cases where the declaration is good the wife and her heires shall be bound by it So if two Joynt-tenants are Joint tenants and they or two others having severall estates joyne in a Fine and one of them declare the use in one manner and the other doth declare the use in another manner this declaration is good for either of their parts for the declaration shall be governed according Infant to their estates And if an Infant or a man de non sane memorie doth declare the use of a fine levied by him this declaration De noâ sane memoââe is good and shall bind him so long as the fine shall continue in his force 3. This declaration of Uses may bee made either by Deed indented which is the most usuall and safe way or by Deed Poll As where the parties doe by such a writing agree Coo. 2. 73. 5. 2ââ that an Assurance passed or to be passed shall be to such and such uses As that a fine shall be levied by such a time and that it shall be to the use of one for life another in Taile and another in Fee Or it may be made by a verball agreement without any writing at all as where an agreement is so had and made between two or more that a fine or Recovery shall be had and it shall be to such and such uses and the same is had accordingly in this case this is a sufficient declaration being proved but it is not safe in these cases to depend upon slipper memory 4. This declaration by Coo. 2. 69. 70. 6. â7 63. Dyer 290. Coo. 7. â0 Coo. 9. 8. Dyer 136. word or writing may bee made before at or after the time of making the Assurance and therefore one may covenant or agree that I S shall recover against him or that he will levie a fine or make a Feoffment to I S of such land and that the same shall bee to the use of c. And if one make a Feoffment he may declare the uses of it at the same time and that within the same or in another Dâed at his pleasure And if the Assurance be past and no declaration of uses had before or at the time of passing it a declaration may be subsequent viz. That the same Assurance was and shall be and the Recoverors c. shall stand and be seised to such and such uses for an Indenture subsequent may direct and declare the uses of a Fine or Recovery precedent But herein these diversities are to be observed when precedent Indentures are made to direct the uses of a subsequent Assurance and after the Assurance is made accordingly there Averment no Averment shall bee taken by word that the same Assurance was to other uses then are declared by the Indenture But against an Indenture subsequent declaring the uses of an Assurance precedent an Averment may be taken that there were other uses expressed and limited before or at the time of the Assurance then are contained in the Indenture If a precedent Indenture bee made to direct the uses of a subesequent Assurance when the Assurance comes the land is bound and the Conusâr or Recoveree cannot by any act of his after the Recoverie had charge or avoid it but if the declaration bee subsequent if in the interim between the Assurance had and the declaration of the uses the Conusor or Recoveree sell give or charge the land to others this subsequent declaration will not subvert the meane estates charges or interests unlesse it can bee otherwise proved that by a certaine and compleat agreement of the parties the Assurance was had and made to these uses 5. When the agreement for the limitation of uses is precedent whether it bee by writing or word it is but directory and doth not bind the estate untill the same Assurance be afterwards had and therefore by a new agreement or declaration made in the same manner as the former viz. in writing if the former be so and between the same parties either before or at the time of the same Assurance passed new uses may be made the former uses changed but when the same Assurance is pursued accordingly no intervenient alteration is made it shall be expounded to be to
on condition and the lessee doth Co. 8. 92. not know of it and after the lessor doth by will give the land to the lessee without condition and the lessee doth such an act as is a breach of the condition in this case the condition is not broken for the lessee must have notice of the condition ere he can breake him If a lease be made rendering rent on condition that if the rent Doct. Stud. 35. 13 H. 4. 17. To pay rent be not paid within twenty daies the lessor shall reenter and the rent is not paid in this case the condition is broken but the lessor cannot enter untill he hath made a legall demand and if he die before he doe it his heire shall never take advantage of that breach but it is discharged for ever When an act is to be done in time convenient or otherwise and the party doe it not by the time appointed by law the condition is Li. Sect. 353. Plow 30. broken If one grant an annuity pro consilio impenso impendendo and the To give advise grantor require advise and the grantee refuse or neglect to give it 21 E. 3. 7. 8 H. 6. 24. Dier 369. this is a breach of the condition and a forfeiture of the estate And if the deed be that he shall goe to such a place to give counsell and he require him to goe thither and he refuse it this is a forfeiture of the estate But if he refuse to goe with him to another place or give counsell to his adversary being not required to give counsel to him this is no breach of the condition nor forfeiture of his annuity And if one had heretofore devised his land to be sold by his executors Lit. Sect. 383. to have been distributed for his soule the executors had not sold it in time convenient or had taken the profits to their own use this had been a breach of the condition See more in the last foregoing division and in Obligation Numb 10. Covenant Numb 7. The same law is for the most part of conditions of obligations See Obligation Numb 10. Every particular estate hath a condition in law annexed to it and Co. 2. 15. 8. 44. super Lit. 233. 11. When a condition in law shall be said to be broken Or not therefore if tenant for life in dower by the courtesie or after possibility of issue extinct lessee for years tenant by statute merchant elegit or the like make any absolute or conditional estate of the lands they hold in fee simple fee tail or for life give livery of seisin thereupon Forfeiture or levy a fine Sur conusance de droit or suffer a recovery of the land or the like this is a breach of the condition in law and a forfeiture of their estate Also if any such tenant except tenant in taile after possibility of issue extinct doe wast in the lands they doe so hold this is a breach of the condition in law and a forfeiture of their estate in so much as the wast is committed But if an Infant Infant Womencovert or feme covert that hath such an estate shall make any such estate c. this is no breach of the condition in law And yet if such a person doe wast this is a breach of the condition in law And so also if any such person be an officer and doe any thing which is a cause of forfeiture in another this will be a forfeiture in him or her also If any keeper of a Parke without warrant kill any Deere fell Co. super Lit. 223. or cut any wood and convert it to his owne use pull downe the lodge or any house within the Parke used for hay for the Deere or the like this is a breach of the condition in law So also if a keeper shall not looke to the game but the Deere be killed by his default and damage come to the Lord by this also the condition is broken But the not attending upon such an office for two or three dayes if the Lord have no speciall losse thereby is no cause of forfeiture Offices that are for the Administration of Justice or of clark ship in any Court of Record or concerning the Kings treasure revenue Co. super Lit. 234. account alnage auditorship c. have also conditions in law annexed to them and therefore if such officers shall sell their offices or misdemeane themselves in their offices by this the condition in law may be broken and they may forfeit them As no man may create or annex a condition to an estate but he 12. Who may enter for a condition broken And what persons shall take advantage of a condition or a limitation And what not Lit. Sect. 347. Plow 175. Co. 3. 62. 347. 5. 56. Dier 131. Co. super Lit. 214 215. Doct. Stud. 93. Perk. Sect. 830 831. 833 835. Plow 488 489. that doth create the estate it selfe so neither can a man give or reserve the power title or benefit of reentry and avoidance of an estate upon the breach of a condition to any other but to him or them or at least to one of them that doth make the estate his or their heirs executors and administrators c. for it is a rule of the common law That none may take advantage of a condition but parties and privies in right and representation as heires executors c. of naturall persons and the successors of politique persons and that neither Privies nor Assignees in law as Lords by Escheate nor in deed as grantees of reversions nor Privies in estate as he to whom a remainder is limited shall take benefit of entry or reentry by force of a condition And therefore if a man had made a lease for life reserving rent on condition that if the rent be behind the lessor his heires and assignes shall reenter and after had granted the reversion to a stranger this grantee should not by the common law have had benefit by this condition But if the lessor had died his heire or the Gardian in Chivalry or Socage of such an heire if he had been an Infant and inward might have taken advantage by the condition And if one had been possessed of a lease for years and had granted his terme upon condition and had died his executors or administrators might have had advantage of this condition And at this day the law is still the same as touching Privies in Co. super Lit. 202. 12. blood for an heire shall take advantage of a condition though no estate descend to him from the Ancestor And therefore if one be seised of land of the part of his mother and he make a feoffement in fee of it on condition and die and the condition is broken in this case the heire of the part of the father shall enter but as soone as he hath entred the heire of the
the Testator that the heires of I S shall have it will help for albeit a Devise of land in writing may be revoked by a verball subsequent declaration or by any act crossing or controlling that Devise yet a Devise becomming vold by that meanes cannot be made good by any such verball decâaratioâ subsequent to the same Countermaund So if one give any goods or chattels to I S and he die before the Testator in this case and Seâ ãâã Numb 14. by this meanes the Devise is become void and the Executor of I ãâã shall not have it And yet if a Devise be of land to A for life the remainder to B in Taile and A die before the Testator it seems Perk. Sect. 567. 568. the Devise of the remainder doth continue good notwithstanding And if one devise land or goods to the wife of ãâã S. and afterwards her husband dieân and she marry with another man and then Plow 3ââ the Devisor dieth this is a good devise notwithstanding and not avoided by either of these Accidents If one devise a Terme that he hath to A for life the remainder to such persons as shall be occupiers of White Acre at the death of A Per Iustice Iones M. 9. Iac Co. B. this Devise albeit in his beginning it be good yet if the Devisor die before A it seemes now to become void for he that will take by way of Executory devise must take as an immediate purchasor and be capable and knowne at the time of the death of the Testator If I give to I S 20l if he marry my daughter and she dye before he marry her in this case and by this meanes the Legacy is become Swinb 356. void If I give a debt owing to me to I S and afterwards I receive Perk. Sect. or release the debt hereby the devise is become void If a man make a Will and give Legacies and appoint one or more Litt. Broo. Sect. 300. his Executor or Executors and he or they after his death all refuse to take upon them the Administration yet in this case the Legacies remaine good and are not become void And in this case the course is to grant the Administration of the goods to him to whom it doth belong and to annex the Will to the Administration and then the Administrator is to performe the Will as the Executor ought to do It is held also that a Legacy of goods or chattels may become void by the injurious dealing of the Legatee against the Testator after the Legacy given whereof read Swinb part 7. Sect. 22. And when the thing devised is dead or spoiled howsoever by Swinb 357. this meaneâ the Devise is not become void yet it looseth his effect and is as if it were void See more supra at Numb 5. In all these cases when the disposition of the Legacy is pure and ãâã Where a Legacy shall goe to the Executor when the Legateâ dâth die before he dâth receive it And where ãâã no time is set for the performing of it or there is a set time for Swinb 350. â55 35â the doing of it and the Legatee die before the time and where the disposition of the Legacy is conditionall and a time set for the doing of it if the Legatee live till that time or the condition be performed in all these cases the Executor or Administrator of the Legatee shall have the Legacy and the same remedy to recover it that the Legatee himselfe had But if the Legatee die before the condition be performed contra And yet if in that case the Testators mind shall appeare to be that the Executor or Administrator of the Legatee shall have it or the condition be to be performed by another and there be no default in the Legatee or if the disposition be modall or the Legacy that was at first upon condition be afterwards repeated without condition or it be referred to a condition to be afterwards set downe and none is set downe in these cases the Legacy is not lost by the death of the Legatee but shall go to his Executor or Administrator as for Example If one devise 20l. to W S to be paid within 4 yeares after the death of the Testator and Broo. Devise 27. 45. Swinb 350. 355. Dyer 59. Swinb 358. 356. âlow 345. the Legatee die before the 4 yeares expired in this case the Executor or Administrator after the 4 yeares expired shall recover the Legacy If one give to W S 20l. when he cometh to 21 yeares of age and he die before he come to the age of 21 yeares in this case his Executor shall not have the Legacy But if the Devise be thus I give to W S 20l. and I will that it shall be paid him at his age of 21 yeares and he die before he come to the age of 21 yeares in this case his Executor shall recover the Legacy So iâ one give to I S 20l. when he shall be married and he die before marriage in this case his Executor shall not have it But if one devise thus I give to W S 20l. towards his marriage and he dye unmarried in this case the Executor shall have and recover the Legacy So if one do give to W S 20l. when the Executor of the Testator shall dye in this case if W S die before the Executor the Executor or Administrator of W S shall not have the Legacy If one devise goods or chattels to I S and I â die before the Testator the Executor or Administrator of I S shall not have this Legacy When any chattell reall or personall is given to an Executor by a Plow 519. 520. 543. Coo. 10. 47. 2. 37. 8. 96. Dyer 277. 367. Perk. Sect. 574. 573. 575. Will the Executor hath an election given him by the Law to have 14. Where an Executor upon a Deâiâe to him hath an Election to have the thing devised as Executor or as Legaâee And when he shall have it in the one righâ or iâ the other and what act shall make a declaration of his Election and take it in the one right or in the other viz. as Executor or as Legatee and by his speciall entry or seising of the thing or some speciall declaration his election is to be made And if the Executor doe enter generally as most doe and never make any declaration which way or by which right he will have it as most Executors use to do he shall be said to have it and the Law shall Adjudge it in him as Executor and not as Legatee But if by any subsequent words or deeds he shall declare his mind to be otherwiâe he shall be in as a Legatee ab initio And yet if once he doe any such act as is proper to an Executor this is a disagreement to the Legacy ab initio and after that it seems he cannot take as Legatee but must take as