begin c. and before the time the Baron dies and the Fem makes a Feoffment the Feoffee shall not avoid it So if an Infant makes a Lease ut supra and before the time he being within age or at full age makes a Feoffment the Feoffee shall never avoid the Lease c. But many are of a contrary opinion for they say that an Infant or Issue in tail by their own or the Acts of their Ancestors shall never be prejudiced by any thing that is Executory for if he shall not avoid it by his possession before the commencement of the Term he hath no means to Avoid it c. before c. But it is cleer enough that if Tenant in tail dies after he hath discontinued and the Discontinue makes a Lease for yeares to begin ut supra and dies the Heir in tail being his Heir who enters and he enters and makes a Feoffment there the Lease is avoided because the Issue is remitted and hath another Estate than the Discontinuee had and not any privity of that Estate which is avoided If an Infant delivers a Writing as an Esorowle to be delivered as his Deed when he arrives at his full age and receives the Money of the Party to whose use the Deed was to be delivered yet he shall avoid the Deed. If Husband and Wife make a Lease or grant a Rent Charge in Fee out of the Wives Land and then they joyn in a Fine to A. he shall not avoid the Lease or Charge because they are executed but otherwise of things executory as a Statute c. before Execution Avowry LAnd is given to one Habendum a Moity to him and his Heirs and the other Moity to him and the Heirs of his body the Remainder to his Right Heirs the Land is holden by two pence the Donee dies without Issue and his brother enters severall Avowries must be made upon him one for one penny and another for the other But if Land be given the one Moity in tail the other in Fee there shall be but one Avowry for that inures as a joint Gift but in the first case it did inure severally at the Beginning If there be three Jointenants and one Releases to one of his Companions and he to whom the Release was made hath the part of the other by Survivor yet for a third part one Avowry shall be made upon him In the principal case the Fee simple was never severed if it had the Donee should hold each Moity by two pence a peice and the Avowry shall be made upon the collateral Heir for two pence in one Moity A. makes a Gift in tail of one Acre which he holds in Socage and of another which he holds in Chivalry saying nothing the Donor shall make severall Avowries although he hath but one Reversion for the Law makes the Avowry in respect of the tenure over and the severall Acres must severally escheat If a Disseisor makes a Lease for life and dies it seems the Lord is compellable to Avow upon the Heir of the Disseisor But if he had made a Gift in tail and the Donee dies and his Issue enters there he shall not Avow upon the Donor If one Parcener makes a Lease for life yet the Lord shall Avow upon them both but if one Jointenant makes a Lease for life the Lord must make severall Avowries upon them for the Jointure is severed If there be two Fem Parceners Mesnes and one marries the Tenant yet the Avowry of the Lord is not severed But if there had been two Jointenants it had been otherwise for by the Marriage the Moity of the Mesnalty is suspended and cannot be in Jointure with the other Moity which is not in Esse And if one holds a Mannor of another and makes a Feoffment of all except one Acre now the Fee of the Acre is disappendant from the Mannor and the Lord ought to make two severall Avowries Authority IF I devisethat my Executors shall sel my Land and one sells one Moity and another the other this is not warranted by the Authority for it was to be jointly executed As a Letter of Atturny to two to make Livery it ought to be performed jointly But if the Land had been devised to them then such a Sale had been good for they had an Interest and the intent was performed If one makes two Atturnies conjunctim or the King makes two Commissioners of Oyer Terminer if one dies the Authority of the other is determined 35 Ass p. 1. Two Jointenants make a Feoffment with a Letter of Atturny to deliver Seisin and the one delivers Seisin in person this is a Countermand of the whole Livery for the Authority was not severall for either of them but joint for both and therefore being countermanded for one it shall be void against the other Barr. IF the Plaintiffe be Barr'd in an Entry sur Disseisin yet he shall have a Cessavit if he had cause to have it at that time for it is another Title If the Heir brings a Formedon in Descender and is nonsuite Quaere if he shall enter because he had Title of Entry for a Condition broke If a Woman hath cause of Dower of one and the same Acre as Wife to A. and B. If she be barred of it as Wife to A. yet she shall have it as Wife to B. If Baron Fem make a Feoffment upon Condition if the Wife be barr'd in her Cui in vita yet she may enter for the Condition broken 27 E. 3.55 56. P. 72 Bargaine Saile A Bargains and Sells Land to B. and after they both grant a Rent Charge to C. and then the Deed is inrolled the Rent is gone for it is the grant of A. and the Inrolment hath relation to the Delivery which avoids the grant though it was the Confirmation of B. for he had nothing at that time The Issue in tail within age takes from the Discontinuee a Bargaine and Sale He shall not be remitted for he is in by reason of the Possession conveyed to the Vse and so he must have it in the same Degree as he had the Vse And so if he were within age at the time of the Bargain Sale and the other dies and after the Deed is Inrolled he shall not be Remitted If the Bishop makes a grant to the K. in fee confirm'd by the Dean and Chapter and the Deed of the Bishop is Inrolled and the other not it shall bind the Successor for it is but as an Assent and not a Confirmation Baron Fem. IF a Fem Lessee for life marries and she and her Husband make a Lease for life rendring a Rent and the Fem avowes for the Rent after the death of her Husband the Lessor may enter for by her Avowry she hath agreed by matter of Record and so it had been if she had entred for a Condition made by her and her Husband If A. infeoffes his Wife and a Stranger it
be given by Deed with all the Woods and within the Deep there is a Letter of Atturny to make Livery if Livery be not made yet his Executors shall have the Wood. But if Livery be made then the Wood shall go along with the Land If A. requires another orgives him authority without Deed to write seal and deliver a Grant of a Rent Charge out of the Land of the Grantor in the name of the Grantor which is done the Grant is good for if I make a Grant and command one to deliver it it will be good without Deed. So if I by Paroll deliver it him as an Escrowle to be delivered as my Deed upon Condition to be performed that is good But an Authority to make Livery must be by Deed. Neither shall a Woman aver the Assent of the Father for Dower Ex Assensu patris without Deed. Neither can the Lessor Authorize the Lessee to commit Wast without Deed. If an Infant delivers a Deed which bares date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date no more than a Fem Covert otherwise every Infant may be deluded Debt LEssee for forty years makes a Lease for ten years rendring a Rent the first Lessee surrenders the Lessor brings Debt against the second Lessee Quaere A man shall not have Debt for Releif or Escuage granted unto him for it is mixt in the Realty but his Executors shall but he must distrein So the Lord shall not have an Action of Debt for Ayd pur file marier or pur fair fits Chivalier But if he dies before it be levied the Tenant shall be discharged of it An Action of Debt shall not be brought against the Heir and his Brother in Borough English where the Eldest hath nothing by descent as it shall be against the Heirs in Gavel Kind for there he may have a joint judgement against all and not against the Eldest in the other case for he hath nothing upon which it may be levied Quod nota An Action of Debt brought by Executors shall be in the Detinet only although it be for Arrears of Rent incurred after the death of the Testator So it shall be against a man acccomptable to the Testator A Seignory is granted for years the Rent is Arrear and the Tenant dies the years expire if the Grantee shall have an an Action of Debt against the Heir because it was due in the time of his Father and also some was due in his own time or if he shall have an Action of Debt against the Executors for that which was due in the Testators life time or is without Remedy Some say that the Heir shall not be charged in Debt if the Father die not oblige himself and his Heirs expressely and the Executors shall not be charged for they were not chargeable by the death of the Testator for at that time the Grantee could not have an Action of Debt but his remedy was by distresse for then the years were not expired and so no remedy 9 H. 7. 17. a. Co. 4. 49. An Annuity is granted for the life of A. the Grantee releases all Actions of Annuity he shall not have an Action of Debt for the Arrerages although that A. dies afterwards Devastavit vide Executor Devise A Woman hath Issue a Son and by another Husband hath Issue another Son the second Husband devises Land to the Wife for life the Remainder to the next of the blood of the Wife The youngest Son shall take in Remainder although it be true that one is not nearer of blood to the Mother than the other and the Eldest is of the most worthy blood yet he is not neerest and so it is uncertain who should take according to the letter of the Will yet the Intent which is always to be considered in Wills shall be construed in Favour of the youngest because he was Issue of the Devisor Pasc 5. Eliz. A great Case was argued in the Exchequer There were three Brothers the second brother purchased Land and devised it to his Son in tail and if he died without Issue that then it should remain to the next of the Kindred of the Lineage of the Father the Eldest Son was then dead having a Son it was adjudged that the Son of the Eldest should have the Land for he is next of the Lineage For Lineage shall be taken in a Lineall descent which is the most worthy Line Dy. 333. pl. 29. A Devise to the next of Blood the Son of the Eldest Brother shall have it before the younger Brother If Land be devised upon Condition or rendring a Rent that is void for it cannot be good in either case except the Reservor might take advantage of it and the Heir cannot have that which his Ancestor could not And if a man devise Land with Warranty that is void because the Father was not bound But to some there seems a Diversity for in the last case there is a Charge to the Heir and in the first it is for his advantage If the Lord devises Land to his Villein this is an Infranchisment against the Heir and yet he was the Villein of the Heir when the Devise took Effect A man having three Daughters devises to themâ— hundred pound a piece for their marriage Portions and if any of them die before their Marriage then the other should have her Portion by Survivor one dies in the life of the Father the other shall have three hundred pound after the death of the Father and yet nothing survived for she had nothing in possession yet they shall take it by the intent of the Devisor for when he says that if any of them die before their Marriage that the other shall have her Portion this makes it in nature of a Remainder and then though the first Devisee does die in the life of the Testator yet he in Remainder shall take the Estate per Manwood Dy. 127. P. 59. As a Devise to a Monk the Remainder to another the Remainder is good A. Devises Land upon Condition and if the Condition be broke that his Executors shall sell the Land the Devise as to the Executors is void for the Heir must enter for the Condition broken and then he shall hold it discharged of all Conditions A. Devises twenty pound to B. when he arrives at the age of six and twenty years and if he dies before he Devises it to C. B. releases to the Executors of A. before he attain◠〈◊〉 age of six and twenty years if it shall be a Bar Quaere If A. Devises twenty pound yearly for twenty years the Devisee hath no Remedy for his not Isâ—uing out of any Land for he can not take it as a Legacy and an Anâ—â—â—â—y does not lie against Executors for the Testator was never charged A Jointure cannot be made by Devise for Land was not then Devisable and the Wife
the other for life and A. grants both over viz. the one in Fee and the other for his own life If the second Feoffee shall have Election If A. had committed wast in both or had made a Feoffment of both the Lessor might have entred into which he had pleased If I give two Acres the one in Fee the other for life and the Donee dies without Heir Quaere if the Lord shall have Election If a Lease be made of two Acres the Remainder of one to A. and of the other to B. and makes no certain description of either He who first enters after the death of Tenant for life shall have the Election If a Lease be made of two Acres Habendum the one in Fee and the other for life reserving a Rent Quaere how the Lord shall avow But his Executor hath no Remedy by the statute of 31 H. 8. If A. grants to another one of his horses the Grantee dies before his Election his Executor shall choose but yet there was no property in the Grantee before Election If two Acres are granted the one in tail and the other in Fee the Heir of the Donee shall make his Election If twenty shillings or a Robe is yearly granted at the Feast of Easter at the day or before the day the Grantee hath Election If it had been by Obligation the Obligor shall have the Election after the day But if one grants to another twenty loads of wood or twenty Oaks yearly at the day or after the Election is in the Grantee for it lies in Prender so that there is a a Difference betwixt a thing in Payment and in Prender 13 E. 4. 4. If a Lease for life be made reserving a Rent or a Robe at the day it is in Election of the Lessee but after in the Lessors A Reversion is granted to one for life and before Atturnment it is granted to him in Fee the Grantee may choose his Estate If an Acre is given Habendum in Fee or in tail the Donee shall choose If one be bound or Covenants to infeoffe B. of the Mannor of D. or S. the Obligor c. hath the Election for he is the first Agent But if I give my black horse or white Horse there the Donee hath the Election for there he is the first Agent But otherwise if the words had been that I should deliver also If I infeoffe A. and B. and warrant the Land to the one or the other there is no Election given to either and therefore void But if one be bound to me to pay to A. or B. there the Obligor hath the Election for he is the first Agent but in the other case it ought first to be demanded A. gives two Acres Habend the one for life the other in Fee reserving a Rent or a Robe and does not distinguish which he shall have for life and which in Fee B. makes a Feoffment of both the Rent is behind A. distrains in one only and makes an Avowry for the Robe in that Acre Quere bien If a Rent be issuing out of two Acres the Tenant grants one to another the Grantee may choose in which he will distrain for all A. disseises B. of twenty Acres in C. B. brings a writ of Entry sur Disseisin in ten Acres and recovers and comes upon the Land and enters into one Acre in the name of all he recovered and thereof presently infeoffs D. who enters into the other nine Acres A. brings an Assize for those nine Acres and it is maintainable for by the entry of B. into one Acre in the name of all he recovered nothing vested in him but that Acre for it was a determination of his Election which nine Acres he would have for it was incertain and then nothing passed by the Feoffment but that one Acre for the Feoffee being a stranger shall not make Election which runs in Privity Emblements A Woman hath Title to have dower of three Acres and after the Heir sows one of the Acres and she hath that Acre assigned to her in dower Quaere if she shal have the Emblements for no folly can be imputed to the Heir for the possession was cast upon him by the Law and when he did sow the Land it was uncertain to him whether ever the wife would recover her dower neither could he guesse which Acre would be assigned her in dower and the Heir shall take advantage of this incertainty As if the Condition be performed by the Mortgagor yet the Mortgagee shall have the Emblements If a man devise that his Executors shall sell his Land and before the sale the Heir sows the Land and then the Executors sell it yet the Heir shall have the Emblements 36 H. 6. 36. If the Heir sows the Land and is disseised before severance and the Disseisor endows the wife of the Father Some think the Heir shall not have the Emblements for she is supposed to be in in the Post by the Disseisor Quaere Entry GRandfather Father and Son The Father disseiseth the Grandfather and dies the Son endows the Mother the Grandfather dies the Son may enter upon the Mother for he hath a new Right descended to him from the Grandfather for the Grandfather might have entred upon the Mother so shall his Heir But if there be Great Grandfather Grandfather Father and Son and the Grandfather disseises the Great Grandfather and the Father dies and the Son endows the wife of the Father and the Great Grandfather dies the Son shall not out the Tenant in Dower for the Great Grandfather could not enter by reason of the descent no more can his Heir If a disseisor makes a Lease for life the Remainder in Fee and the disseisee purchaseth the Remainder and grants it over he cannot enter upon the Lessee for life for then he should defear his own Grant A Feoffment is made upon Condition to re-infeoffe the Feoffee makes a Feoffment to his use If the Feoffor may enter without Request If A. makes a Feoffment reserving a Rent and if it be behind a Re-entry after he releaseth the Rent when he hath Title or Entry he cannot enter after or if he granted the Rent over after his Title of Entry The Eldest Son cannot enter where the Reversion is descended to the youngest by the Custom A Seignory is granted in tail the Tenant aliens in mortmain the Grantee dies within the year without Issue the donor shall enter as well as he in Remainder for there is a Privity of Estate If two Acres descend to A. and a stranger abates into one and A. enters into the other in the name of both that shall not gain the possession of the other But otherwise if he had entred into that Acre wherein the Abatement was in the name of both Tenant for life of a Seignory a Tenancy Escheats a stranger intrudes Tenant for life dies before Entry he in Reversion may enter as upon the Disseisor of his Tenant
is void as to the Wife and good to the Stranger though the Livery were made to the Stranger in the name of both Three Jointenants and one gives his part with his Daughter to his Companion in Franckmarriage and by the same Deed releases to them in Frankmarriage and makes Livery this is a good gift in Franckmarriage by some for notwithstanding one Jointenant cannot enfeoffe his Companion yet he may enfeoffe his Companion and another and the Livery made to the other shall vest the Land in both and that is for the advantage of a third person As in Gascoignes case 7 H. 6.3 It was not a surrender for the advantage of the third Neither in 21 H. 7. 41. for the advantage of the Husband So it shall not be void here for the advantage of the third person But others are of a contrary opinion and they say the Husband cannot take it immediately from his Companion and therefore it is void as to him and good as to the Wife the other part of the Deed viz. the Release will inure to the Husband And here both the things make the Frankmarriage good for the Livery and the Deed may be delivered both at one time If the Husband be Tenant for life and the Reversion be granted to him and his Wife the Fee remaines in them in Jointure for there be no Moities between them Land is let to Baron Fem Habendum the one Moity to the Husband the other to the Wife the Land is confirmed to them in speciall tail rendring a Hawk the Lessor shall have two for the Baron shall have one Moity of the Inheritance for his possession was severed from the possession of the Wife viz. in the one Moity So that of that Moity the Husband is seised in speciall tail and the Wife hath nothing Of the other whereof the Wife was Tenant in Common with the Husband the Baron was thereof seised in Right of his Wife then he had a sufficient Estate whereupon a Confirmation might inure jointly to them If Land be given to the Baron for life the remainder to the Wife for life and their Estates are confirmed in tail The Baron shall have one Moity in tail only he and his Wife the other Moity and yet the Tail is not executed for any part Quaere for this is a good case If Husband and Wife make a Lease of the Wives Land rendring a Rent the Husband distreins and Avowes and dies the Cattle are discharged for they do not belong to the Executor being they are but a Pledge and the Wife is to have the Duty and therefore the Executor cannot detain the Pledge and it is not like the case where the Husband recovers upon an Obligation made to him and his Wife 33 H. 6. 48. Although the Husband can give nothing to his Wife immediately yet if a Disseisoress makes a Lease for life the Remainder to her self in tail the Remainder to A. in Fee and after marries the Disseisee who Releases to the Tenant for life this shall inure to the Wife A Reversion is granted to Baron Fem and to a single man and woman in Fee the single persons marry and the Tenant atturns then the single Man and Woman are divorced the Baron Fem shall have but a third part If a man makes a Feoffment to A. and a Fem sole With a Letter of Atturny to deliver Seisin and before Livery they entermarry they shall take by moities Land is given to A. and B. his Wife and to another Baron Fem in Fee they are disseised and A. releases to the Disseisor and then A. and B. are divorced for cause which hath Relation B. and the Baron Fem bring an Assise leaving out A. and some think it is maintainable for when A. and B. are divorced yet the other Baron Fem shall hold the Moity to them for being the purchase took effect and vested by the Livery and at that time the Baron Fem not being divorced took a Moity that remaines still for to all Strangers A. and B. shall be said to continue Husband and Wife for if a Stranger had bought the Goods of the Wife and then they had been divorced yet he shall retain the Goods as it is held in 26 H. 8. And if the Husband had made a Feoffment the Wife could not have an Assise against the Feoffee but must bring her Cui ante Divortium A Reversion is granted to a man and a Fem sole and they marry and the Tenant atturns they take by Moities for the Atturnment does operate upon the Deed so if they marry before Livery is made If Baron Fem make a Lease for life and pray to be received and the Husband makes Default and upon his Default the Wife is received now she admits the Discontinuance yet if she be barred she shall have her Cui in vita for she had not Title then to have a Cui in vita for that accrues by the death of her Husband If a Feoffment with Warranty be made to a man and a Fem sole and they marry and are impleaded and Recover in Value the Husband dies they did not take by Moities If Land be Bargained and Sold to a man and a Fem sole and they marry and the Deed is inrolled there they take by Moities for it hath Relation But if Baron Fem Tenants for life before the Coverture recover in value by reason of the Reversion with the Rent they shall take the value by Moities But if a Lease be made to a Man and a Woman for life upon Condition to have Fee they marry and after performe the Condition they shall not have Moities in the Fee If a man be seised of Land in right of his Wife and Warranty is made to them and the Heirs of the Husband and they recover in value there shall be no Moities for the Recovery in value must be according to the nature of the Estate If a Fem being Tenant for life marries and the Husband atturns to the grant of the Reversion and then he is Divorced yet it will binde the Wife If a Woman hath a Lease for twenty years and the Lessor confirmes to the Husband for forty yeares who dies she shall have the Residue of the twenty years The Husband hath a Term in right of his Wife and grants so many years as shall be behind at the death of him and his Wife Quaere if this be a good Grant The Husband is bound in a Statute and after he and his Wife levy a Fine of the Land of the Wife to A. the Husband dies the Land shall not be extended in the hands of A. for nothing passed from the Husband but the Estate which he had during the Coverture and A. shall have the same Benefit the Heir of the Wife should have had But if the Husband had made a Lease for yeares or granted a Rent Charge before the fine levied there the Conisee should never have
Reversion and the Fee are Executed for the fourth part A Gift in tail is made rendring during the life of the Donor Socage tenure and after his death Knight service the Wife shall be endowed of the Knights service If a Rent be granted for life and after by another Deed the Grantor releases all his Right in the Rent and if it be behind that the Grantee and his Heirs shall distrain the Wife shall not be endowed for it is still but a Rent Seck and the distress a Penalty 8 H. 4.18 A Disseisor having a Wife makes a Lease for life the Lessee makes a Lease to the Wife for her life the Husband accepts the Deed and agrees to it the Husband dies the Wife disagrees to the Lease the Lessor Enters against whom she brings Dower It is cleer if a Disseisor having a Wife makes a Lease to A. for life who makes a Lease to B. for life and the Disseisee releaseth to B. the Wife of the Disseisor shall be endowed for the Release does not countervail an Entry and Feofment If a Disseisor be Disseised and the Disseisee releaseth to the second Disseisor that takes away the Dower of the first Disseisors Wife But in the first casethe Husband is remitted and no possession in the Wife whereupon a Release may operate and so she may disagree and claim her Dower If an Estate be confirmed in a Rent Seek and if it be behind that it shall be lawfull for him and his Heirs to distrain the Wife shall not have Dower for it is stil but a Rent Seck and the Distresse but a penalty Tenant in tail of a Rent discontinues it with Warranty the Issue having a Wife is barr'd in a Formedon by the Warranty and Assetts yet his Wife shall be endowed for the Grant was void by the death of Tenant in tail and the Issue had possession in Law and might have distrained and though he determined his Election yet it shall not prejudice his Wife If the Husband disagrees to a Remainder the Wife shall not be endowed otherwise to a Dissent If a Rent Charge is granted the Grantee dies the Heir cannot prevent the Wife of her Dower by bringing his Writ of Annuity The Son endows his Wise Ex Assensu Patris the Son is attainted If she shall retain her Dower Some think she shall not for she claims from the Son and Ne unques accouple in loyall Matrimony is a good plea. If Tenant for life surrrenders upon Condition and the Lessor marries and dies the Wife is endowed against the Heir the Lessee enters for the Condition broken the Wife shall not have the Reversion for the Freehold which was the Wives Title is taken away by the Entry If the Grandmother recovers Dower against the Mother she hath taken away all the estate of the Mother for she comes in upon an Eigne Title But otherwise if the Father had been infeoffed So if the Lessor disseiseth his Tenant for life and marries and dies and the Wife is endowed by the Heir the Lessee enters c. And if Lessee for life had died before the Wife had been endowed she shall not be endowed for the Heir was Remitted or if she had been endowed and the Lessee had died the Heir shall out her If the Mother recovers Dower against the Son the Grandmother recovers Dower against the Mother and dies the Son shal enter and not the Mother But if the Dower of the Mother had been by Assignment of the Heir it had been otherwise For he shal be concluded by his own Assignment Quaere For some think the Reversion is not taken away from the Mother in Casu penultimo If a Feoffment be made to A. to the use of B. the Wife of A. shall be endowed A. marries and fells his Land his Wife arrives at her age of nine years the Husband dies she shall be endowed though the Husband had no possession when she was nine years old For if the Husband aliens his Land and after the Wife is attainted and pardoned the Husband dies she shall recover her Dower If a woman Elopes the Husband aliens his Land and after they are Reconciled she shall have her Dower for in these cases the Title of Dower is not consummate until the death of the Husband But if a man marries an Alien and then sells his Land and she is Endenized and the Husband dies she shall not have her Dower If a Tenancy Escheats the wife of the Lord shall not be endowed of the Seignory A woman Intitled to have Dower disseiseth the Tenant and she is disseised by another to whom the Disseisee releaseth she shall not have her Dower for her Dower was suspended in the possession of the Disseisor as well as if it had been in her own possession for the Disseisor is in as the woman was and though her Dower should have been Revived if the Disseisee had entred yet this Release doth not amount to an Entry and Feoffment If Land be given to A. and his Heirs Males as long as he hath Issue Female of his body A. dyes having a Daughter the Wife is endowed and the Daughter dies without Issue the wife loseth her Dower for there is a difference between a Condition in Deed and in Law for if the Issue of Tenant in tail dies without Issue yet his wife shall keep her Dower for it is a Condition in Law And yet if an Estate tail be made upon Condition that if the Donee dies without Issue that it shall be lawful for the Donor to re-enter the Wife of the Donee shall not lose her Dower for the Condition does not take effect untill the estate be determined by the Condition in Law upon which determination she is endowable A. seised in Fee grants a Rent Charge and aliens and takes an Estate in Fee-simple or in tail and dies seised the Wife Recovers in Dower and then she surmises that her Husband died seised and prays a Writ of Enquiry of Damages 14. H. 8. 6. She shall hold it charged for she hath admitted her self dowable of the second Estate A. has a Wife and is seised of four Acres and makes a Feofment of three of the Acres with Warranty and dies the Wife brings her writ of Dower against the Feoffee and he vouches the Heir Now if the Wife may stop the Judgement viz. That she shall not recover immediately against the Heir is the question for then she hath lost her Dower of the fourth Acre as some think she hath because it was her own folly that she did first recover her Dower of that Election IF a Rent be granted in Fee and the Grantee grants it over for yeares the Grantee for years hath no Remedy if it be denied him for he shall not have a writ of Annuity for the Election is given only to the first Grantee and his Heirs and the Election runs only in privity If two Acres are given to A. Habendum the one in Fee and
shall have two Hawks Lord Mesne and Tenant the Tenant makes a Gift in tail the remainder in Fee the remainder Escheats upon whom the Lord shall avow and of whom the Donee shall hold is the question So if the Tenant makes a Gift in tail to the Mesne the remainder in Fee or makes a Gift in tail to a stranger the remainder in Fee to the Mesne how the Tenure shall be now is the Question But in the first case if the Mesne had released to him in remainder or to the Donee in tail it seems the Donee ought to avow upon the Donee in tail and that the Donee shall hold immediately of the Lord Paramount after the release Quaere if there be any difference The Tenant who holds by Homage and ten shillings Rent makes a Lease for life the remainder in tail not speaking of any reservation the Tenant for life although he doth not hold by Homage yet he shall hold by Fcalty and ten shillings Rent being both the Estates now are but one But a Gift had been made in tail the remainder for life after the Estate tail determined the Tenant for life shall not hold by the same services as the Donee held Causa patet If there be two Jointenants and to the Heirs of one of them who hold ut supra make a Gift in tail the Donee shall hold of them both by the like Services and yet the Freehold is no cause of the tenure Quaere for some say that he that hath the Fee shall have the whole Tenure for the Inheritance passeth only from him If Tenant for life and he in reversion make a Gift in tail Quaere how he shall hold If a Lease be made for life the remainder in Frankmarriage some think the Tenant for life shall hold by Fealty only untill the fourth degree be past If there be Lord and Tenant by Fealty and twenty shillings and the Tenant gives in Frankmarriage to hold of him and his Heirs by Fealty only until the fourth degree be past and after by twenty shillings and Chivalry in that case after the fourth degree be past he shall not have the twenty shillings nor the Chivalry for though he reserved but Fealty until the fourth degree be past yet it is an intire reservation presently and the services are in him although they be not to be performed untill the fourth degree be past and Seisin of the Fealty shall be a Seisin of the rest and therefore the reservation being entire that is the reason that it is void for all because all cannot be reserved upon the Gift in Frankmarriage Testament IF a man makes severall Wills of severall dates and dies and the Executor of the last Will refuseth before the Ordinary yet the first Will is clearly defeated and yet the refusal is peremptory but it is not so if there be two Executors and one refuseth before the Ordinary If a Fem sole makes her Will and then marries and he dies Quaere if the Will be revoked Villain IF the Lord deviseth Land to his Villain he shall be enfranchised against the Heir and yet he was a Villain to the Heir at the same time the devise took effect but being the Lord had a power to enfranchise him he shall be enfranchised As if one delivers an Escrowl of Enfranchisement to be delivered seven years after the Lord dies and then the Deed is delivered to the Villain it is a good enfranchisement If a man makes a Lease for life the remainder to the right Heirs of A. who hath Issue a Son who is a Villain by Confession to the Feoffor and the Feoffor dies and A. dies and the Tenant for life dies the Son of A. enters he shall be enfranchized and yet he was not enfranchized in the life of the Feoffor but now he shall be said in by him So if a man devise that his Executors shall sell his Land and they sell it to the Villain of the Testator he shall be enfranchised against the Heir for he comes in in the Per by the Testator If a Fem be endowed of a Villain in grosse and the Tenant in Dower and the Heir enter together into Land purchased by the Villain Quaere in whom the Freehold shall be So if he had been a Villain to an Abbe and a Secular man for his body is intire to every of them And if the Grantee for life of a Villain and he in reversion of a Villain enter together into Land of the Villain it seems that Tenant for life shall gain all but some think that he in reversion shall disable him in an Action If Executors have a Villain that the Testator had and enter into Land purchased by the Villain it shall be Assetts notwithstanding they have a Fee as Land in Fee descended to the Heir shall be assetts to a Chattle viz. a Debt to a Stranger And the reason why they shall have it to the use of the Testator is because they had it in auter droit and so it shall be a Perquisite unto the same right So if a Guardian in Socage of a Mannor to which a Villain is regardant enters into Land purchased by the Villain it shall be to the use of the Infant So if a Bishop enters into Land purchased by a Villain which he hath in right of his Church the Land shall be to the same use so is 42 E. 3. 24. But if one hath a Villain for years in his own right he shall have a Fee in the Land purchased by the Villain It was said if a man be intitled to be Tenant by the Curtesie of a Villain and enters into Land purchased by him he shall be seised of the Land to his own use and not in right of his Wife because he hath the Villain in his own right but Quaere if he were not intitled to be Tenant by Curtesie If the Lord of a Villain gives Land by Fine to the Villain which is Land of Ancient Demesne the Lord reverseth the Fine by Disceit some think the Manumission is destroyed for it doth not appear upon Record otherwise if he enfeoffs his Villain upon Condition and enters for the breach And if a Villain acknowledges an Action brought by Baron Fem that is no Enfranchisement against the Fem for it is but an Enfranchisement in Law upon which she is not examined The Tenant enfeoffs the Villain of the Lord and a Stranger upon Collusion the matter is how the Lord may obtain the Ward without Dammages For if he brings a Writ of Ward the Villain shall be manumitted and if he enters upon the Villain he avoids the Collusion for ever and shall retain the Land but then he shall be Tenant in Common with the other and so he can have no Writ of Ward for the other Moity If Tenant in tail of a Mannor to which a Villain is regardant makes a Lease for one and twenty years to the Villain rendring a Rent according to the statute and
Mortmain also Conditions and Titles are always said to be in possession as a Rent is and then a Warranty to the Tenant of the Land will not extinguish them Lord by Escheat shall not vouch by reason of a Warranty if a Seignory be granted with Warranty and a Tenancy Escheat the Warranty shall not extend to it Vide Fitzh 18. Voucher Father and Son and a third person are Jointenants the Father makes a Feofment of all with Warranty and dies the Son dies the third shall have an Assize of but one part by some and yet the warranty commences by Disseisin as to the Son but yet the Survivor cannot deny but that this Warranty is collaterall for he comes not under the estate of the other If a Lease be made for years to the Grandfather remainder to the Father for life remainder to the Son in Fee the Grandfather enfeoffs with Warranty it comences by disseisin to theFather and collateral to theSon for the Feofment was not a disseisin to the son If the Father be Lessee for years remainder for life to the son remainder over for life remainder in Fee to the Son the Father enfeofs with Warranty it comences by disseisin as to the son for theFreehold but for the Fec t is collateral Quaere by some in all cases every man shal a void a Warrantywhich comences by disseisin vid. Fitz. War 28. If a Lease for life be made remainder for years with Warranty Quaere if this Warranty will benefit him in remainder being the precedent estate is of another nature If a man makes a Lease for life on Condition that if the Lessee doth such an act that the Lessee shall have Fee and warrants the Land in forma praedicta that Warranty extends to the Fee but if the Feoffor dies and then the Condition is performed then if it be available is the Question being the Lessor was not bound to Warranty during his life and then the Warranty which was annext to the Freehold is gone for the greater estate drowns the lesser And to provethat the greater drowns the Warranty it was said if Tenant in tail be with Warranty to him his Heirs and Assigns hisFeofee in Fee shall not besaid assignee nor vouch because he hath not any part of the Estate tail It was also said that if the condition had been performed in the life of the Lessor that the Warranty would not extend to it for it must be annext to something in possession But some take a difference that if in the first case the firstLease had been for years that the Warrantycould not extend to the remainder because the first estate was but for years and of another nature but it would be otherwise in a Lease for life And it was said if a Lease for years be made remainder in Fee with Warranty he in remainder can't take advantage of the Warranty because he Was not privy to the first deed and thenhe cannot take as an immediate Warranty because the first Estate was of another nature a reversion descends to Barow Fem Lessees for life as to the Issues of two parceners theHusband dies thewife shall have the wholeFreehold asSurvivor and the Fee shall be executed for a moity because the other moity goes another way sc to the Heirs of the Husband and he shall dereign the Warranty annexed in Fait to the first estate for the moity and not for the other moity because the Fee is executed If Land be bargained sold by Indenture in Fee with warranty the Indenture is delivered and after inrolled within six months if he shall vouch Quaere because the nature of a Covenant is that it ought to take effect presently by the delivery of the deed and then the Warranty was void because the Land did not pass at that instant and though the Inrollment makes it to pass ab initio yet the relation shall not make a void Warranty good To which it was said if one makes a Feofment with a Letter of Atturny and warranty is in the deed by the delivery the Warranty shall be good and yet the deed was delivered before If a gift in tail be made with warranty to a man his Heirs and Assigns and he makes a Feofment and dies with Issue in a Formedon in Reverter the warranty shall not be a bar not with standing the book of the 39 45 E. 3. 4. If the Lord confirms the estate of the Tenant with warranty and after the Tenant ceases the warranty shall not be a bar in a Cessavit notwithstanding the Seignory which was in Esse before the warranty made was the conveyance to his action because the action a rises upon an after cause Tenant by the curtesie of a Seignory whereof a Tenancy escheat make a Feofment with warranty if it shall be a bar to the Issue without Assets Quaere A Fem which hath a Rent Charge in Fee marries with the Tenant of the Land a stranger release to the Tenant with warranty the warranty can't extend to the Rent because theRent was suspended by act in Law and the wife if the Husband dies nor the Heir of the wife living the Husband cannot have any action for the rent upon a Title before the warranty made for if theHeir of the wife brings a Mortdancester that is de puisne temps and after the warranty so if the Grantee of a rent grant it on condition to the Tenant who makes aFeofment of the Land with warranty thatwarranty can't extend to the rent and yet theLand was discharg'd of the rent but all the actions shall be took as the cause of action arises afterward for if the condition be broken and after an action be given that shall arise after the warranty made but if a Fem which hath a rent marries with the Tenant who makes a Feoffment of the Land with warranty and dies and the wife brings a Cui in vita of the rent there the Feoffee shall vouch as of Land discharged So if Tenant in tail of a rent purchases the Land and makes a Feofment and the Feoffee aliens with warranty or if Tenant in tail of a rent releases to the ter Tenant who aliens over with Warranty if the Issue brings a Formedon he shall vouch as of Land discharged So if an Infant hath a rent and disseises the Tenant and is disseised by another who aliens with warranty that warranty shall extend to the rent because in all these cases the Land is discharg'd of the rent at the time of the Feofment in Fee and the action is conceived upon a Title Paramount to the warranty But if a man grants a Rent Charge out of Land to commence at Mich. and the Tenant makes a Feoffment with warranty or if a rescous be made and after the Tenant makes a Feofment of the Land with warranty as it is in 31 E. 3. in a Warrantia chartae there the warranty shall not extend to the rent because the rent was not in