cast up will shew you the yeare of our Lord in which the years shall end so that if your Lease commenced at Michaelmas it will end at Michaelmas in the same yeare Or if it begin the twenty fourth of March in that yeare which is but one day before the end and change of the yeare then it will end the twenty forth of March the said yeare As for example A Lease began Michaelmas Anno. 7. Eliz. 1564. to endure for the terme of ninetie yeares I demand how many yeares is to come of this Lease and when the same terme of yeares will be determined first I set downe the day of the Month and the yeare of our Lord in which the Lease tooke his commencement as at Michaelmas 1564. unto which summ I adde the number of yeares which was granted by the Lease being ninety yeares which being cast up maketh the summe to be one thousand six hundred fifty four in which yeare at Michaelmas the yeares will be expired and the Lease determined then to know how many yeares are to come of the same Lease I set downe the Lease will expire and then substract out of that summe the yeare of our Lord which then is as for example one thousand six hundred twenty eight whereby I find the substracted number to be twenty six and so many yeares there is yet to come from Michaelmas 1628. A Lease was made for eighty yeares to commence at Michaelmas 1567 80 1647. the Lease will end The yeare of our Lord 1628 substracted sheweth that 0019. there is 19. yeares to come at Michaelmas 1628. A Warrant to Summon a Court of Surveigh THese are to will and in his Highnesse name to require you to give notice warning to be given to all singular the Tenants aswell Freeholders as Copiholders and they that hold by Lease or at Will of or within his Highness Mannor of C. in the County of S. that they and every of them do make their personal appearance at his highnes Court of Surveigh there to be holden upon Wednesday next being the 16. of July 1655. by 8. of the Clock in the forenoone of the same day at the usuall place of keeping the Court of the same Mannor and that they and every of them do then and there bring and shew forth or cause to be brought and shewd forth all their Deeds Leases Copies of Court-Rolles and all other their evidences whereby they and every of them doe pretend or claime to hold any Lands and Tenements whatsoever of or belonging to the said Mannor And also that they and every of them doe then and there bring and shew forth all such Rentalls Court-rolls Surveighes Terrats Suit-rolls and all other Escripts Writings Minuments and Records which they or any of them have any way concerning the said Mannor or any part member or parcel of the same and to give such further attendance in and about his Highnesse said service of survey as shall be of them and every of them necessarily required wherof faile not as you tender his Highnesse service dated c. Your loving friend I. N. To the Bayliff of his Highnesse Mannor of C. or to his deputy or to every of the Tenants of or belonging to the said Mannor and the members thereof Cause this to be published in the Church at the time of divine service and cause the under Tenants to give notice to them whose undertenants they are that dwell remote ARTICLES to be enquired of at a Court of Survey and Court-Baron for the Mannor c. 1. IMprimis you shall declare the true circuit and generall Boundarie or Boundaries of this Mannor Butts and Bonds and how farr and into what place or places doth the same extend and upon what other Lords Lands doth the same bound and border aswell on the East West North and South sides and whether have any of the generall or utmost bounds Meers or Markes been altered and by whom and where Concealments 2. Item whether do any person or persons within the precinct of this Mannor or any other whatsoever covenously conceale and wrongfully occupy any part or parts of this Mannor and who the same persons be and where and in what place and what be the names of the grounds concealed or encroached and in whose occupation be they and how long have the same been concealed or enclosed The mansion house demean lands 3. Item you shall enquire of the chiefe Scyte and Capitall Mansion house of this Mannor with the perticular Members and buildings and what demeane Lands Meadowes Pastures Arable Grounds Woods Underwoods hereditaments whatsoever are belonging to the same what be their severall names and where and in what parts of the Mannor doe the same lie and how be they butted and bounded and who be now the occupiers thereof and under what Estates Rents Herriots or services to your knowledge 4. Item what free-hold Lands Freehold Tenements or hereditaments be holden of this Mannor who be they that be seised thereof and what Rents reliefes workes customes or other duties do they pay or ought to pay for the same and by what tenure to your knowledge doe they and every of them hold and how are they butted and bounded and what quantity and number of Acres do the same containe and what is the true yearly value thereof 5. Item Copy-hold lands what Lands or Tenements be holden by Copy of Court-Roll within this Mannor who they be that are seised thereof and what Rents Herriots works customes or other duties do they pay or ought to pay for the same and what quantity and number of Acres do the Tenants severally hold and the quality therof and what is the true yearly value of the same 6. Item Tenants at will Tenants by Indenture Who be they that be tenants at will or tenants by Indenture what lands or tenements doe they hold or what rents or duties do they pay or ought to pay for the same and what is the quantity or yearly value therof 7. Item Decay of houses whether there be within this mannor any ancient houses decaied or fallen downe or any houses or buildings out of reparations and where and how long have the same been ruinous decayed or out of reparations and in whose default and to what charge or value would the new erecting or repairing of them or any of them amount unto 8. Item you shall enquire of all the falling down Wast Woods destruction and wasts of any Woods Underwoods or Trees in and upon the said Mannor or any part or parcell thereof made or done by any person or persons and by whom where and when and to what value Names of commons c. 9. Item what be the names of the Lords VVasts Heaths or Commons of what name or kind soever belonging to this Mannor which of them are free for the Lord of this Mannor to use in severalty and who be they that doe enter-common
according to the exception of the Statute but not a Lease for life or lives as hath been said But this concurrent Lease hath been resolved to be good as well upon the exception of 1 Eliz. in the case of Bishops as upon 13 Eliz. which extend to Spirituall and Ecclesiasticall Corporations aggregate of many as Deanes and Chapiters c. which 32 H. 8. for the Leases for years to be made according to the exceptions of the Statute of 1. and 13 Eliz. must begin from the making and not from the day of the making but by force of 32 H. 8. from the day of the making And though the Statutes of 1. and 13 Eliz. do not appoint the Lease to be made by writing yet must it therein and in the other 8. properties or qualities before mentioned and required by 32 H. 8. follow the patterne thereof the concurrent Lease onely excepted And though the exception in 1. and 13 Eliz. concerning the accustomed rent is more generall then that of 32 H. 8. and there is not any provision made for Leases made dispunishable of waste c. yet must the patterne of 32 H. 8. be followed for Leases made without impeachment of waste by such Spirituall and Ecclesiasticall persons are unreasonable and are causes of disputations And albeit it be proved by the said Acts that all Grants c. Leases c. other then Leases for three lives or one and twenty yeares according to these Acts should be utterly void and of none effect to all intents Yet Grants or Leases c. nor warranted by these Acts are not void but good against the Lessor if it be a sole Corporation or so long as the Deane or other head of the Corporation remaine if it be a Corporation aggregate of many for the Statute was made in benefit of the Successor 3. pars Coke fol. 50. 60. pars 39. Eliz. inter Hunt Singleton How to make a perfect Joynture within the Statute of 27 H. 8. wherein six things are to be well observed Joynture to bar Dower FIrst her Joynture by the first Limitation is to take effect for her life in possessions or profit presently after the death of her Husband Secondly that it be made for the terme of her owne life Thirdly it must be made to her selfe and none other for her Fourthly it must be made in satisfaction of her whole Dower and not in part of her Dower Fifthly it must either be expressed or averred to be in satisfaction of her Dower Sixthly it may be made either before or after marriage Concerning the first if a man make a Feoffment in fee of Lands or Tenements either before or after marriage to the use of the husband for life and after to the use of A. for life and then to the use of the wife for life in satisfaction of her Dower this is no Joynture within the Statute because by the first limitation it was not to take effect in possessions or profit presently after the death of her husband and although in that case A. should dye living the husband and after the death of the husband the wife entreth yet this is no Bar of Dower but she shal have her Dower also because it is not within the said Statute and by the Common Law it was no Bar of Dower Secondly it must be either in Fee-taile or for terme of her owne life for an Estate for life or lives of one or many others or to her for a hundred yeares if she live so long or without such limitation is no Bar of Dower albeit it be made expresly in satisfaction of her Dower Thirdly if an Estate be made to others in Fee-simple or for life upon trust so as the Estate remaine in them albeit it be for her benefit and by her assent and by expresse words to be in full satisfaction of her Dower yet is this no Bar of her Dower The fourth is so plaine as it needeth not any example Fifthly a Devise by will cannot be averred to be in satisfaction of her Dower unlesse it be so expressed in the Will Sixthly if the Joynture be made before marriage the wife cannot waive it and claime her Dower at the Common Law but if it be made after marriage then she may waive the same and claime her Dower Vernons case 4. pars Co. fol 4. If a Joynture be made to the wife of Lands before the Coverture and after the Baron and Feme alien by Fine those lands so conveyed for her Joynture she shall not be endowed of any other of her husbands lands But if the Joynture had been made after marriage notwithstanding the alienation by the husband and wife thereof by Fine yet seeing her Estate was originally waivable and the time of her election came not till after the death of her husband she may claim her Dower in the residue of his lands Note that by force of the Statute of 1 Ed. 6. cap. 2. 5 Ed 6. cap. 11. a wife shall not lease any Title of Dower which to her was accrued by the Attainder of her husband for any manner of Murther or other Felony whatsoever But if the husband be attainted of high Treason or petite Treason she shall be barred of her Dower at this day Feoffment to the use of a mans last Will and Testament When a Feoffment is made to a future use as to the performance of his last Will the Feoffees shall be seised to the use of the Feoffor and his Heires in the mean time 35 H. 6. 22. 15 H. 7. 12. H. 36. 11. H. 4. 521. 7 H. 4. 2. 2. 1 Mariae III. Dyer vide fol. 25. a. Surrenders Surrender in Law A Surrender in Law is in some cases of greater force then a Surrender in Deed as if a man make a Lease for yeares to begin at Michaelmas next this future interest cannot be surrendred because there is no reversion wherein it may be drown But by a Surrender in Law it may be drowned As if the Lessee before Michaelmas take a new Lease for yeares either to begin presently or at a day to come this is a Surrender in Law of the former Lease Lessee for yeares grants a Rent-charge and surrenders yet the Rent shall be paid during the yeares So if he in Reversion grant a Rent-charge during the terme and then the Lessee doth surrender unto him he shall pay the Rent during the terme for a stranger that is a Grantee of the Rent shall say for his benefit that the terme continueth and that it is not determined If a man make a Lease for forty yeares Surrender by acceptance of a new Lease By Surrender one of Court the Copy-hold estate passeth to the Lord under a secret condition that it be presented at the next court according to the custome of the Mannor And therefore if after such a Surrender and before the next court he that made the Surrender dieth yet the Surrender standeth good
M. and of his heires for ever And as for and concerning the said Mannor of c. Vses raised for payment of debts and performance of his last Will. to the use of F. M. for life and then to daughters for portions in such manner as is next before limited And from and after such time as the said severall summes of c. shall or may be had levyed or taken then to the use and behoofe of the Executors and Administrators of the said F. M. for and during the terme of ten yeares then next following for and towards the payment of the debts of the said F. M. the father and for and towards the performance of his last Will Testament and from and after the end of the said terme of 10. yeares then to the use and behoofe of the said E. M. for his life without c. and so on with an intaile et supra Reddendo reservando A rent must be reserved out of Lands or tenements whereunto the Lessor may have resort or recourse to distrain therfore a rent cannot be reserved by a common person out of any incorporeall inheritance as advowsons commons Offices corody multure of a Mill. Reservations of Rent with all incidents belonging thereunto and how tenant in taile must reserve the rent upon his Lease A Man makes a Lease the first of October for ten yeares from the feast of St. Michael then last past yeilding to him and his heires 20. pounds at Michaelmas or within one month after in this case if the lesser die between the feast of St. Mic. and the end of the month the heir shall have the rent as incident to the reversion and not the executors as rent behind because it was not due till the end of the Month. And so if the Lessor betweene the said two daies had granted the reversion over and the Tenant attorne the Grantee shall have the rent as incident to the reversion Tithes Faires Markets Liberties Priviledges Franchises and the like But if the lease be made of them for years by deed it may be good by way of contract to have an action of debts but distrain the lessors cannot neither shall it passe with the grant of the reversion for that it is no rent incident to the reversion but if any grant be reserved in such case upon a lease for life it is utterly void because in that case no action of debt lieth But if a man deviseth the vesture or herbage of his land he may reserve a rent for that the thing is maynorable and the lessor may distraine the cattle upon the land a reversion or remainder of Lands or Tenants may he granted reserving a rent for the apparent possibility that it may come in possession they are tenements within the words of Litleton Vide fo 44. A man makes a Lease for yeares yeilding a yearly rent at the feast of Pasch or a month after with condition of re-entry and the Lessee tenders the rent at the last instant of the day of the feast of Pasch The Lessor in the case may not re-enter upon demand made the last instant of the month because the Lessee hath liberty to pay it then and the diversity was taken between the disjunctive reservation and when the reservation is at a certain feast and a condition is added that if it bee behind by the space of a month after the feast that then the Lessor shall re-enter there the lessee for the salvation of his Lease may not tender it at the last instant of the Feast day because he hath not such liberty and election as in the other case and it was resolved by all the Justices that in the said case of the disjunctive reservation if the lessor dy between the said two daies the heire shall have the rent and not the Executor A man leased certain lands for years yeilding yearly a rent of thirty pounds at Michaelmas and the Anuntiation or within 12. daies after every of the said feasts payable at the Fontstone in the Temple Church London upon condition that if the said rent of 30 l. or any part thereof be behind and unpaid by the aforesaid space of twelve daies next after any of the aforesaid Feasts or daies of payment thereof as is aforesaid therof as is aforeraid that then the said Lease shall be voide and it was adjudged that the lessee in safegard of his Lease shall have 12. daies after the 12. daies to pay the rent for when the rent is not paid at the first day it is as much as if it had been reserved upon the twelfth day after And where it is said per perdictum spacium 12 dierum post c. by good construction all the words ought to take effect viz. post aliquod festorum praedict seu dierum solutionis inde and dies solutionis is the 12. day after the feast and therefore the Lessee shall have 12. daies after the twelfth day which is dies solutionis post festum c. and that for the most a vaile of the Lessee for whose benefit over time was given and those words praedictum spatium 12. dierum standeth well in good sence viz. post praedictum spacium 12. dierum post praedictos 12. dies for that is praedictum spacium though it hath not the same commencement a the other hath And so the quere in 3. and 4. P. M. fo 142. well resolved Dier A Parson of a rectory made a lease for yeares rendant rent at Michaelmas or within a month after The Lessor died ten daies after Michaelmas and was barred by judgement of the Court because the lessor died before the rent was due Dame Eliz. Pawlet seised of the Mannor of Wade for her life by Deed indented demised the Mannor to William Pawlet for 99. yeares if she the said Dame Eliz did so long live yeilding the rent of 100. pounds at Michaelmas and Pasch or within 40. daies after either of the said feasts W. Pawlet made Dulcibel his wife Executrix and died Dulcibel took to husband Iohn More Esq Dame El. Pawlet made Edward Walgrove her Executor died the thirteenth day after Michaelmas her Executor brought an Action of Debt for the halfe yeares rent ended at the Feast before the death of the said Eliz. tota Cuâ—ia contra quaerentem Yeilding and paying therefore yearly during the said terme unto the said c. the yearely rent or sum of a 100. pounds Rent reserved to be paid of the thing demised and without any demand of the rents so note that by speciall consent of the parties a reentry may be for default of payment of rent without demand thereof Nomine penae forfeited for non-payment of rent without any demande made at two tearmes or Feasts in the yeare most usuall by equall portions the first payment therof to begin at the Feast c. next ensuing the date hereof the same payments to be made yearely at or in
adjudged the demand ought to be made upon the Land Coke 4. part fo 72. When Qu. Eliz. made a Lease for yeares rendant rent which condition ut supra the Qu. shall take advantage of the condition without any demand but when she grants the reversion over her grantee shall not take advantage of the condition without demand If the King make a Lease for yeares rendant rent without limiting any place or to whose hands it shall be paid the Lessee may by the law pay it either at the receit of the Exchequer or to the hands of the Kings Bayliffs or Recevors Excellent matter touching demands and where the demand ought to be made If a man by Deed indented enfeoff another in fee-simple rererving to him and his heires a certaine rent payable at one Feast or divers Feasts upon condition that if the rent be behind then a re-entry in this case though the rent be behind and not paid yet if the Feoffor doth not demand the same c. he shall never re-enter because the land is the principall debitor for the rent issueth out of the Land The demand must be made upon the land because the Land is the Debitor and that is the place of demand appointed by the law Coke Liber 4. fo 72. 73. Borowes Case If the rent be reserved to be paid at any place from the Land yet it is in Law a rent and the Feoffor must demand it at the place appointed by the parties observing that which shall be said hereafter concerning the most notorious place Coke liber 4. 73. Plowden fo 70. If there be a house upon the Land he must demand the rent at the house and he may not demand it at the back-doore of the house but at the fore-doore because the demande must ever be made at the most notorious place and it is not materiall whether any person be there or no albeit the Feoffee be in the hall or other part of the house yet the Feoffor need not but to come to the fore-doore for that is the place appointed by the Law though the doore be open 15 Eliz. Dier fo 329. If the Feoffment were made of a wood onely the demand must be made at the gate of the Wood or at such high-way leading through the Wood or other most notorious place and if one place be as notorious as another the Feoffor hath election to demand it at which he will and although the Feoffee be in some other place of the Wood ready to pay the rent yet that shall not availe him 15. Eliz. Dier fo 329 And if the Feoffor demand it on the ground at a place which is not most notorious as at the back-doore of a house c. in pleading the Feoffor alleadge a demand of the rent generally at the house the Feoffee may verse the demand and upon the Evidence it shall be found for him for that is a void demand And all this is to be understood when the Feoffee is absent for if the Feoffee commeth to the Feoffor at any place upon any part of the ground at the day of payment and offer his Rent albeit they be not at the most notorious place nor at the last instant of the day the Feoffor is bound to receive it or else hee shall not take any advantage of any demand of the Rent for that day Therefore the place of demand being now knowne it is further to be known what time the Law hath appointed for the same this partly appeareth by that which hath been last said for albeit the last time of demand of the rent is such a convenient time before sun setting of the last day of payment as the money may be numbred and received notwithstanding if the tender be made to him that is to receive it upon any part of the Land at any time of the last day of payment and he refuseth the condition is saved for that time for by the expresse reservation the mony is to be paid on the day indefinitely and convenient time before the last instant is the uttermost time appointed by the law to the intent that then both parties should meet together the one to demand and receive and the other to pay it so as the one should not prevent the other but if the parties meet upon any part of the Land whatsoever on the same day the tender shall save the condition for ever for that time And if the reservation of the Rent be at certaine Feasts with condition that if it happen the Rent to be behind by the space of a week after any day of payment c. In this case the Feoffor needeth not demand it on the Feast day but the uttermost time for the demand is a convenient time before the last day of the week unlesse before that the Feoffee meet the Feoffor upon the Land and tender the rent as is aforesaid Plowden fo 167. 172. 20 H. 6. 30. 31 6 H. 7. 3. If a rent be granted payable at a certain day if it be behind and demanded that the grantor shall distraine for it in this case the Grantor need not demand it at the day but if he demand it at any time after he shall distraine for it for the Grantor hath election in this case to demand it when he will How tender and payment of money upon a bond must be made Rent payable at a day the party hath all the day till night to pay it but if it be a great sum and as a 1000 l. he must be ready as long before sun set as the mony may be told for the other is not bound to tell it in the night L. Mariae 172. b. Finch fo 38. vide fo 63. plus de hoc to enable him to distraine Coke Littleton fo 201. 202. 203 Cokes report li. 7. fo 28. Maundes case If a man make a Lease for yeares reserving a rent with condition that if the rent be behind that the Lessor shall re-enter and take the profits untill thereof he be satisfied there the profits shall be accounted as parcell of the satisfaction and during the time that he so taketh the profits he shall not have an action of debt for the rent for the satisfaction whereof he taketh the profits but if the condition be that hee shall take the profits untill the Feoffor be satisfied and paid of the rent without saying thereof or to the like effect there the profits shall be accounted no part of the satisfaction but to hasten the Lessee to pay it Cokes Littleton fo 203. 3 E. 3. 7. 27 H. 8. 4. 43 E. 3. 21. Although that the last time of payment of money by force of the condition is convenient time in which the money may be numbred before sun setting yet if tender be made to him that ought to receive it at the place specified in the condition at any time of the day and he refuse it the condition is saved for ever and
by the bargaine and sale And the bargaine of a reversion shall never take advantage of a condition before notice given Edward Fox for the consideration of 5 pound demysed and granted certaine Tenements to have from the day of the date of the Indenture for ninety nine years A Lease of the Premisses formerly made being then in being It was adjudged that this Demise and Grant upon consideration of fifty pounds did amount to a Bargaine and Sale for the said years whereupon there needeth no Attornment In this case of a Lease for term of years which is a Chattell there needeth no Inrolement for being but a term of years and no Estate of Frank-tenement there needeth no Attornment because it is Executed by the Statute of 27 H. 8 S. Coke 8. pars fol. 94. Livery and Seisin in toto vide fol. 35. Note An actuall delivery of a writing sealed to the party without any words is a good delivery And therefore if A. make a writing to B. and sealeth and delivereth it to B. as a Scrow to take effect as his Deed when certaine conditions are performed that is his Deed forthwith for the Law respecteth the delivery to the party himself and rejecteth the words which shall make the expresse delivery to the party upon the matter no delivery So that the Deed is effectuall though the conditions he never performed And there is a diversity when it is delivered to the pary himselfe and when to a stranger If a Writing be sealed and then it lieth in a Window or on a Table and the Obligor saith to the Obligee See there the writing take it as my Deed and he take it accordingly this is a good delivery in Law Coke 9. pars fol. 137. A Livery in Deed may be done two manner of waies by a solemne Act and words as by delivery of the Ring or Hasp of the Doore by a branch or twig of a Tree or by a Turff of the Land And with these or the like words the Feoffor and the Feoffee both holding the Deed of Feoffment and the Ring of the doore Hasp Branch Twig or Turff and the Feoffor saying Here I deliver you seisin and possession of this house in the name of all the Lands and Tenements contained in this Deed according to the forme and effect of this Deed. Or by words without any Ceremony or Act As the Feoffor being at the house doore or within the house saith Here I deliver you seisin and possession of this house in the name of seisin and possession of all the Lands and Tenements contained in this Deed Or enter into the house or land and God give you joy Or I am content you shall enjoy this Land according to the Deed. But if a man deliver the Deed of Feoffment upon the Land this amounts to no livery of the Land for it hath another operation to take effect as a Deed But if he deliver the Deed upon the Land in name of seisin of all the Lands contained in the Deed this is a good Livery If divers parcels be contained in a Deed and the Feoffor delivers seisure of one parcell according to the Deed all the parcels do passe albeit he saith not in name of all because the Deed containeth all And if there be divers Feoffees and he maketh livery to one according to the Deed the Land passeth to all the Feoffees And yet the plainer way is to say in the name of the whole or all the Feoffees If a man make a Charter in Fee and deliver Seisin for life secundum formam Charte the whole Fee-simple shall passe for it shall be taken most strong against the Feoffor If a man make a Lease for years by Deed and deliver seisin according to the forme and effect of the Deed yet he hath but an Estate for years and the Livery is void A man makes a Lease for years But if Lessee for years make a Lease for a certaine terme of any parcell and so divide the possession of that from the residue if of such parcell so severed Livery he made the possession in the residue by the first Lessee is not any impediment to the Livery for this parcell Coke 2. pars Betsworths case and after makes a Deed of Feoffment and delivers seisin the Lessee being in possession and not assenting to the Feoffment this Livery is void for albeit the Feoffor hath the Free-hold and the Inheritance in him yet that is not sufficient for a Livery must be given of the possession also But if the Lessee be absent and hath neither Wife nor Servants though he hath Cattell upon the ground the Livery and Seisin shall be good If a man be seised of a house and of divers severall Closes in one County in Fee and makes a Lease therof for years and afterwards makes a Feoffment in Fee of the same and makes Livery and Seisin in the Closes the Lessee or his Wife or Servants then being in the house the Livery is void for the whole The delivery of a peice of Gold or any other thing upon the land in name of seisin is sufficient Thorowgoods case Coke 9. pars fol. 136 for the Lessee cannot be upon every parcell of the Land to him demised for the preservation and continuance of his possession therein And therefore his being in the house or upon any parcell of the Land to him demised is sufficient to preserve and continue his possession in the whole from being outed or dispossessed New Littleton fol. 4. 8. a. b. A man makes a Lease to A. the remainder to B. in fee and makes Livery to A. within the view this Livery is void for no man can take by force of a Livery within the view but he that taketh the Freehold himselfe If Lessee for life make a Deed of Feoffment and a Letter of Attorney to the Lessor to make Livery and he makes Livery accordingly notwithstanding he shall enter for the forfeiture But if the Lessee for years make a Feoffment in fee and a Letter of Attorney to the Lessor to make Livery and he makes Livery accordingly this Livery shal bind the Lessor and shal not be avoided by him for the Lessor cannot make Livery as Attorney to the Lessee because he had no Freehold whereof to make Livery but the Freehold was in the Lessor If the Lessor make a Deed of Feoffment and a Letter of Attorney to the Lessee for years to make Livery and he doth it accordingly this shall not drown or extinguish his term because he did it as a Minister to another and in anothers right and is accounted in Judgment of Law the act of the other and the Feoffee claimeth nothing by him Trin. 7 Eliz. in com Banco If Tenant for life or years the reversion or remainder being in the King make a Feoffment in fee Forfeiture Tenant for life the remainder to the King for life the remainder to another in fee if the first Tenant for
covenanteth and granteth to be seised to his use in Fee although no consideration be expresly showne because the Indenture is an Estopell to say it was not a good consideration and it seemeth the Court may not examine the consideration and there is a diversity where the Grant is by Indenture and where by word only Nota. If a man hath power to make Leases for three lives he may not make a Lease for 99. yeares determinable upon three lives But if a man hath power by proviso to make any lease or Grant provided that such lease or Grant exceed not the number of three lives or 21. yeares there he may make a lease for ninety nine yeares if three lives so long live for that doth not exceed the number of three lives but that in truth is lesser for every tearme for yeares which is but a Chattle is lesser in estimation of the law then estate for life which is Frank-tenement If A. be Tenant for life the remainder in taile and A. hath power to make leases for twenty one yeares rendant the ancient rent he may not make a lease by Warrant of Attorney by force of his power because he hath but particular power which is personall unto him Lands may be conveyed 6. manner of wayes First by Feoffment executed from one man to another man and his heires by solemn livery and Seisin By Feoffement By Fine By recovereys Bargain and Sale By use By Covenant By Will if a lesser Estate be given then Fee-simple is it not calâ—ed a Feoffement unless the Fee-simple be conveighed A man in consideration of 100. l and of marriage covenanteth from thenceforth to bee seised of certaine land to the use of himselfe for life and afterwards to the use of his son in taile and the deed is not inrolled according to 27 H. 8. the use and profits is charged because the statute speaketh of bargain and sale only and the use is not because of Bargain and sale only but also for marriage Ploudens case Manxell fo 4. A Fine is a reall agreement made upon record in the Kings Court of Common Pleas at Westminster upon Fines What a Fine is and how lands may be converred therby Tenant for life the remainder to A. in taile the remainder to B. in tail c. with diverse remainders over and tenant for life suffers a common recovery wherein he voucheth A. and he the common vouchee that shall binde all the otheir remainders for no Covin or collusion may be supposed when the next in remainder in taile which hath the immediate inheritance is vouched Coke 10 pars fo 48. a rent may be reserved but no condition or Covenant this fine is a record of great credit and upon this Fine are made foure proclamations made openly in the common Pleas in every Terme and for foure termes together and if any man having right to the same make not his claime within 5. yeares after the proclamations ended hee looseth his right for ever an Infant a Feme covert a Madman or one beyond the Seas only excepted whose rights are saved so that he claime within 5 yeares after full age death of her husband recovery of the Wits or returne beyond the Seas it barreth the heires in taile presently whether the heire doth claime within 5. yeares or not if he claime by him that levied the fine A recovery barreth entailes and all remainders and reversions that should take place after the entailes saving where the King is giver of the entaile and keepeth the reversion to himselfe then neither the heire nor reversion is barred by the recovery And now by use recoveries are become common assurances against entailes remainders and reversions and the greatest security purchasers have for their money for a Fine will barr the heire in taile but not the remainders nor reversions Why recoveries doe barr remainders and reversions but a common recovery will bar them all and the reason why the heires remainders and reversions are thus barred is because in strict law the recompence adjudged against the cryor that was vouchee is to goe in succession of estate as the Land should have done and then it was not reason to allow the heire the liberty to keep the land it selfe and also to have recompence and therefore he loseth the Land and is to trust to the recompence Vpon Feoffements and recoveries the estate doth settle Vpon Fines Feoffements and recoveries the estate doth settle according to the intent of the parties as the use and intent of the parties is declared by word or writing before the act was done as for example if they make a writing that any of them shall levie a Fine make a Feoffement or suffer a common recovery to the other but the use and intent is that one shall have it for his life and after his decease a stranger to have it in taile and then a third in Fee-simple in this case the Law setteth an estate according to the use and intent declared And that by reason of the statute of 27 H. 8. of uses concerning the land in possession to him that hath interest in the use or intent of the fine Feoffement or recovery according to the use and intent of the parties The Statute of 27 H. 8. doth not passe land upon the payment of money without a Deed indented and inrolled Vpon this Statute is likewise grounded the fourth and the fifth of the sixt conveyances viz. Bargaines and Sales and Covenants to stand seised to uses for this statute wheresoever it findeth an use conjoyneth the possession to it and turneth it into like quality of state condition rent and the like as the use hath But the Parliament that made the statute did foresee that it would be mischievous that mens lands should suddenly upon the payment of a little money be taken from them peradventure in an Alehouse or a Tavern upon straineable advantages did therefore gravely provide another Act in the same Parliament that the Land upon payment of this money should not pass away unlesse there were a writing indented made between the said 2. parties and the said wrighting also within six months inrolled at some of the Courts of Westminster or in the Sessions Rolls in the Sheir where the land lieth The first conveyance by covenant is a conveyance to stand seised to uses it is in this sort A Covenant to stand seised to a use needeth no Inrolement as a Bargaine and Sale to an use doth so as it be to the use of Wife Child or Cousin or one he meaneth to marry a man that hath a wife and children brethen and kinsfolke may by writing under his hand and Seale agree that for him they or any of their heirs he wil stand seised of his lands to their uses either for life in taile or in Fee so as he shal see cause upon which agreement in writing there ariseth an equity or honesty that the land should
good of such Leases by the said Statute there are nine things necessary to be observed belonging to them all and some other to some of them in particular 1. The Lease must be made by Deed indented 2. He must be made to begin from the day of the making or from the making thereof 3. If there be an old Lease in being it must be surrendred or expired or ended within a year of the making of the Lease and the surrender must be absolute and not conditionall 4. There must not be a double Lease in being at one time As if a Lease for years be made according to the Statute he in the Reversion cannot expulse the Lessee and make a Lease for life or lives according to the Statute nor e converso for the words of the Statute be to make a Lease for three lives or one and twenty yeares so as the one or the other may be made and not both 5. It must not exceed three lives or one and twenty yeares from the making of it but it may be for a Lesser terme or fewer lives 6. It must be of Lands Tenements or Hereditaments maynorable or corporeall which are necessary to be letten and whereunto a Rent by Law may be reserved and not of things that lye in Grant as Advowsons Faires Markets Franchises and the like out whereof a Rent cannot be reserved 7. It must be of Lands or Tenements which have been most commonly letten by the space of twenty years next before the Lease made so as if it be letten for eleven yeares at one or severall times within those twenty yeares it is sufficient A Grant by Copy of Court Roll in fee for life or yeares is a good letting to farme within this Statute for he is but Tenant at will Secund. Cons Manerii And so it is of a Lease at will by the Common Law But those lettings to Farme must be made by some seised of an Estate of inheritance and not by a Guardian in Chivalry Tenant by Gurtesie Tenant in Dower or the like 8. That upon every such Lease there be reserved yearely during the said Lease due and payable to the Lessors their Heirs and Successors c. so much yearly Farme or Rent as hath been most accustomably yeilded and paid for the Land within twenty yeares before such Lease made Hereby first it appeareth that nothing can be demised by authority of this Act but that whereon a Rent may be lawfully reserved Secondly that where not only a yearly Rent was formerly reserved but things not annuall as Herriots or any Fine or other profit at or upon the death of the farmor yet if the yearly rent be reserved upon a Lease made by force of this Statute it sufficeth by the expresse words of the Act And if twenty acres of land have been accustomably letten and a Lease is made of these twenty and one acre which was not accustomably letten reserving the customably yearely rent and so much more as exceeds the value of the other acre this Lease is not warrantably letten and the rent issueth out of the whole If Tenant in taile let part of the land accustomably letten and reserve a rent pro rat or more this is good for that is in substance the accustomable Rent If two Coparceners be Tenant in taile of 20. acres every one of equall value and usually letten and they make partition so as each have ten acres they may make Leases of their severall parts each of them reserving the halfe of the accustomable rent If the usuall Rent had been payable at foure dayes or Feasts of the yeare yet if it be reserved yearly payable at one Feast it is sufficient for the words of the Statute be reserved yearely Ninthly nor to any Lease to be made without impeachment of Waste therefore if a Lease be made for life the Remainder for life c. this is not Warranted by the Statute because it is dispunishable for VVaste but if a Lease be made to one during three lives this is good for the Occupant if any happen shall be punished for VVaste the words of the Statute be seised in the right of his Church yet if a Bishop that is seised in jure Episcopatus A Deane of his sole possessions in jure Decanatus An Arch-deacon in jure Archidiaconatus A Prebendary and the life are within the Statute for every of them is generally seised in jure Ecclesiae All Grants Feoffments Leases and other Conveyances or Estates to any Master or Fellowes of a Colledge Deane and Chapiter Master or Guardian of an Hospitall Parson Vicar c. other then for one and twenty yeares or three lives from the time of such Lease or Grant reserving the accustomable yearely rent yearly payable shall be meerly void 18 Eliz cap. 11. All Leases made by such persons as 13 Eliz. cap. 10. before where another Lease for yeares is in being not to be expired surrendred or ended within three years next after the making of such new Lease shall be void All Bonds and Covenants for renewing or making of any Lease contrary hereunto or to 13 Eliz. cap. 10. before shall be void But a Parson and Vicar are excepted out of the Statute of 32 H. 8. and therefore if either of them make a Lease for three lives c. of lands usually letten reserving the usuall rent it must be also confirmed by the Patron and Ordinary because it is excepted out of 32 H. 8. and not restrained by the Statute of 1. or 13 Eliz. and what hath been said concerning a Lease for three lives doth hold for a Lease of one and twenty yeares Now to speak somewhat of the disabling Statutes of 1. and 13 Eliz. the words of the exception out of the restraint and disability of 1 Eliz. are Notes of things well and duty to be observed other then for the terme of one and twenty years or three lives from such time as any Grant or assurance shall be given whereupon the old and accustomed yearely rent or more shall be reserved And to that effect is the exception in the Statute of 13 Eliz. First it is to be understood that neither of these nor any other do in any sort alter or change the enabling Statute of 32 H. 8â— but leaveth it for a patterne in many things for Lease to be made for others Secondly it is to bee knowne that no lease made according to exceptation of 1 Eliz and 13. Eliz. and not warranted by the Statute of 32 H. 8. if it be made by a Bishop or any sole Corporation but it must be confirmed by the Deanes and Chapiters or others that have interest as hath been said in the case of the Parson and Vicar but examples do illustrate If a Bishop make a Lease for one and twenty yeares and all these yeares being spent saving three or more yet may the Bishop make a new Lease to another for one and twenty yeares to begin from the making
8. of Uses the terme of the Feoffee was saved Also in the same Court Anno 28 Eliz. in the case of Ized it was resolved that where the Lord enfeoffed the Copyholder to the use of others that the Copyhold Estate by the saving of the said Act was preserved Devises IT is a principle in Law A Lease to A. for life the remainder to the right heires of B. B. haveing a daughter dieth his wife privily with child of a Son in this case the daughter claimeth by purchase and therefore the son borne after shall never divest it Coke 1. pars fo 95. that in all gifts be they by devise or otherwise it behooveth to have a donee in esse which hath power and capacity to take the thing given at the very time when it ought to vest for if there be not any such in rerum natura when the thing ought to vest then the gift shall be void Plow fo 345. For if a man devise a Lease or goods to I. S. which dieth and then the devisor dieth the Executor of I. S. shall not have them And if a man seised of lands in Fee devisable make his will and thereby devise his lands to I. S. and his heires and then I. S. dieth and afterwards the devisor dieth I. S. and his heires nor any of them shall take nothing by this devise and here the thing ought not to vest in the devisee untill the death of the devisor at which time the devisee was dead and so was not in rerum natura And as to that heires are named in the gift that is to say it is given to the devisee and to his heires for which cause they shall be contemned and concluded in the intent that is not so for heires are not there taken to be immediately takers but onely to expresse the quantity of the estate that the devisee should have for without expressing heires the Devisor might not properly make an estate in Feesimple in the devisee and none other But if a man devise Lands to one and his heires and the devisor dieth in the life of the devisee and then the devisee dieth now the heire shall take by the devise Coke prima pars fo 95 If a man lease lands to a man for life Contingent remainder and if the Lessor die without heire of his body that then the Lessee shall have the land to him and his heires in this case if the Lessee for life dieth and then the lessor dieth without heires of his body the heire of the lessee shall not have the land and so clearely holden Plowden com fo 483. Quere de hoc It was agreed for good law that the occupation of a Chattel may be devised by way of remainder but if the thing it selfe were devised to use the remainder were void for the gift or devise of a Chattel for an howre is pro imperpetuum and the donee or devisee may give it sell it and dispose it and the remainder thereupon is void Brook devise fo 13. The occupation of a Chattel personall may be devised by way of remainder A Lease devised 20. yeares to one for the first ten yeares the remainder to another or devised to one for so many yeares as he shall live the remainder to another a delivery to the first devisee serveth for him in the remainder also So though it be but the occupation of a terme which is so devised for the occupation and profits of the Land is all one with land it selfe but if the occupation of a Booke glasse or other Chattel personall be devised to one for life and after his death to another in like sort there a delivery to the first is no delivery to the other for their occupations are severall and in such Chattles personall the occupation is distinct from the property 7 H. 6. 30. Plowden fo 522. A devise to one and his heires Males is an estate taile but a devise to I. S. in Fee upon condition that if he pay not I. D 10 l. then I. D. to have it in Fee is a void condition and remainder for it is contrary to the law 27 H. 8. 27. 29 H. 8. Dier 33. But a devise of the fee-simple to Alice S. and after her death to B. is onely an estate for life the remainder for life to B. the remainder to Alice in Fee so as the husband of Alice In a devise by what words Fee-simple passeth if she die in the life of B. cannot be Tenant by courtesie 19 Eliz. Dier 357. If a man devise lands to a man for ever or to give and to sell or in fee-simple or to him and his Assignes for ever Fee-simple passeth but if the devise bee to a man and his Assignes without saying for ever the Devisee hath but an estate for life if a man Devise lands to one sanguini suo that is Fee-simple but if it bee semini suo it is estate taile If a man Devise Lands upon condition A devise upon a condition repugnant is voide that the Devisee shall not Alien this condition is void and so it is of a Grant Release Confirmation or other conveyance whereby a Fee-simple doth passe And so it is if a man bee possest of a Lease for yeares or of a Horse or of any other Chattel reall or personall and give it or set it upon any such condition When a man deviseth that the Executors shall set the Land A devise that the Executors shall sell the Land there the Land descendeth in the meane time to the heire and untill the Sale be made the heir may enter and take the profits But when the land is devised to his Executor to be sold there the devise taketh away the discent A device of Land to the Executors to be by them sold and vesteth the state of the land in the Executors and they may enter and take the profits make sale according to the Devise and here it appeareth that when a man deviseth his Tenements to be sold by his Executors is all one as if he had devised his Tenements to his Executors to be sold And the reason is because he deviseth the Tenements whereby he makes the discent Although that the last Will shall avoid the former Will yet if a man be seised of lands in Fee No alteration of such a Will and therof enfeoffe a stranger and declare his Will upon the Livery of Seisin made to the stranger that is that the Feoffee shall bee seised to the use of the Feoffor for terme of his life the remainder to I. S. in Fee now he may not alter this Will by a latter Will in prejudice of ceste que use in remainder because the use is in him in remainder forthwith so that he may set it but if in the same case the remainder of the use had been to the right heires of the Feoffor then the Feoffor might alter
this use by his last Will and if the Feoffor had declared his Will upon the Livery of Seisin that the Feoffee should be seised to the use of I. F. for life the remainder to the use of the Feoffor or in taile the remainder to the use of a stranger in Fee in this case the Feoffor may not alter this Will by his last Will Perkins Testaments fo 93. and 92. Such a Wil may be altered If a man seised of Lands in Fee thereof enfeoffe a stranger to the intent to performe his Will and after the Feoffor maketh his Will and deviseth the same Land to a stranger in Fee in this case the Devisor may alter this Will by a latter Will because in this case the Devisee shall not have this Land but by force of the Testatment and that may not take effect till after the death of the Devisor And the same law it is of Lands Tenements Rents or Common c. devisable by the custome used in any place c. And also the same law is it of all Chattels reall and personall devised Perkins Testaments fo 93. A Feoffment to performe a Will When a Feoffement is made to a future use as to the performance of his last Will the Feoffees shall bee seised to the use of the Feoffor and his heires in the meane time 35 H. 6. 22. 15 H. 7. 12. 37 H 6. 36. 11. H. 4. 52. 7 H. 4. 22. 1 Mariae 111. Dier Of such Will there is no alteration A Feoffment made to the use of ones Will if his Will be declared before or at the time of his Feoffment it cannot bee altered because it is executed otherwise it is if his Will be declared afterwards 20 â— 7. 11. If a man devise his land to W. N. solvendum 10 l. to his Executors and die A man deviseth lands to his wife so long as she should continue sole and if she marry the remainder in taile the remainder to his right heire so that the marriage is the limitation which determineth the estate and so the remainder beginneth upon the estate ended there Coke 10. pars fo 41. the Devisee hath Feesimple by reason of the payment without words to his heires for ever And that shall bee intended the intent of the Devisor so if a man sell land to W. N for 20 l. that shall be intended a Sale in Fee-simple without words heires for conscience c. Brook estates fo 78. Termor deviseth to his wife the Land for so many yeares as she should live and afterward the terme to his son and made his wife Executrix and died the wife prooved the Testament and entred and agreed to the devise and afterwards shee aliened the terme and died the son or his Administrator may enter A man deviseth his Land to I. S. that shall bee taken but for terme for life but if he saith paying 100 l. to W. N. that shall bee intended Fee-simple and if hee doth not pay it in his life time yet if his heire or Executor pay it it sufficeth Quaere of his Assignee Brooke Testament 18. A Devise to a man and his heires hee hath issue a daughter and dieth his wife privily with Child of a Son the daughter entreth she shall retaine the land for ever and yet the son is heire but not to toll the land before vested in the daughter If Lessee for yeares devise his terme or other his goods or Chattels by Testament to one for terme of his life the remainder over to another and dieth and the Devisee entreth and doth not Alien the terme nor give nor sell the Chattel and die there hee in remainder shall have it but if the first devisee had aliened given or sold it he in remainder had beene remedilesse Brook Chattel 23. And so B. thinketh it if it be forfeited in his life he in remainder is without remedie If a terme be devised to one his heirs males of his body his heire shall not have it but his executor for a terme which is but a Chattel may not be entailed and such Devisee may well Alien the terme to whom please him Coke 10. pars fo 22. If a man devise Lands to one to have to him and his heires after the death of the Devisors wife the wife although she were not named before the Habendum shall have an estate for life by this Devise The husband possest of a terme in jure uxoris suae maketh a Lease of parcell rendant rent the wife shall have the residue of the terme but not the rent 9. Eliz. Dier fo 246. If a man devise his land to his wife for her life upon condition that if she marry that then the land shall remaine to I. S. in taile this is a good remainder for the construction of this devise is to make the same condition to be a lymitation and not any condition and upon a lymitation or determination of a particular estate which is certaine and not uncertaine a remainder clearly may well depend A man possessed of a terme of yeares in the right of his wife cannot devise it to another by his Will for she hath an estate in it before and at the time of his death which preventeth the Devisee nor can he grant charge out of it for she surviving is remitted to the terme and therefore shall avoide the charge But by by an expresse Act he might in his life time have given it away but if a woman having Chattels personall take a husband the law devesteth the property out of her and vesteth it in her husband only What Deeds of Gifts shall be counted fraudulent Fraud IF a man make a generall Deed of Gift of all his goods this is suspicious to bee done upon fraud to deceive the Creditors And if a man which is in debt make a Deed of gift of all his goods to protract the taking of them in execution for his debt this deed of gift is void as against those to whom he stood indebted But as against himselfe his owne Executor or Administrator or any man to whom afterwards he shall sell them or convey them it is good What is sale bona fide and what not By sale any man may convey his own goods to another although he may feare Execution for debts he may sell them out-right for money at any time before the Execution served so that there be no reservation of trust between them that providing the money he shall have the goods againe for that trust in such case doth prove plainely a fraud to prevent the Creditors from taking the goods in execution A Deed of gift of goods to defraud Creditors is voide against them but is good against him his Executors or ministrators Where Sale in a Market Overt shall Bar the owner and where not IF a man steale my Goods or Cartel Market Overt or take them from me in jest or borrow them of mee and
because that by a Release of Demands all the meanes and remedies and the causes of them which any hath to Lands Tenements Goods Chattels c. are extinct and by consequence the right and interest to the thing it self But note although that a Release of all Demands be of so great extent yet that extendeth not to such Writs by which nothing is demanded neither in fact nor in Law by doing onely to releive the Plaintiff by way of discharge and not by way of demand A Release of all Demands is not a bar in a Writ of Error to reverse an Outlawry By a release of all demands Rent-seck all Actions mixt Warranty which is a Covenant reall and all other Covenants reall and personall Estovers all manner of Commons Profits apprender Conditions before they be broken or performed or afterwards Annuities Recognizances Statutes Obligations and Contracts c. are released and discharged If a man by Dead covenant to make a house or to make an Estate and before the Covenant broken the Covenantee release to him all Actions Suits and Quarrels that is no discharge of the Covenant because that at the time of the Release nothing was due nor was it any debt or duty or any cause of Action in esse but in this case of all Covenants is a good discharge of the Covenant before it be broken A Release of all duties extendeth to all things due which is certaine and therefore dischargeth Judgments in personall Actions and Executions also If the Plaintiff after Judgments release all Demands the execution is discharged By a Release of all Quarrels all Causes of Actions are released although no Action be then depending Coke 10. pars fol. 51. 38 H. 8 Release 6 H. 7. 15. 19 H 6. 3. 4. 40 E. 3. 22. 5 Eliz. Dyer 217. By a Release of all Suites the execution is released If a man be in Execution If a man make a Lease for ten years the remainder for twenty years he in remainder releaseth all his right to the Lessee he shall have an estate for thirty years for one Chattell cannot drown in another and yeares cannot be consumed in years Cokes Littleton 260. b. Co. 6. pars fo 47. a Release of all Debts or Duties he is to be discharged of the Execution because the Debt or Duty is discharged If Judgment be given in an Action of Debt and the body of the Defendant is taken in execution by Capias ad satisfaciendum and afterwards the Plaintiff releaseth the Judgment by that the body shall be discharged of the execution In an Action of Debt brought by Hoe in the Kings Bench If a rent be behind for twenty years and the Lord do make an Acquittance for the last that is due all the rest are presumed to be paid And the Law will admit no proof against this presumption Cokes Littleton fol. 373. Phelix Marshall was baile for the Defendant and afterwards before any Judgment given the Plaintiff released to Pehlix all Actions Duties and Demands and after Judgment was given against the Defendant and upon a default of the Defendant Scire facias went out against Phelix Marshall who pleaded the said generall Release upon which plea the Plaintiff demurred And it was adjudged that this Release shall not bar the Plaintiff for the words of the baile are conditionall viz. Si contigeret predictum defendentem debit dam. ill prefat quer minime solvere aut se prisonae Mareshalss ea occasione non reddere c. So that it may not be by the said Baile any certaine duty untill Judgment be given for before that none may know to what summ the Debt and Damages will amount to he which is baile for the Defendant is not bound in any certaine summ at the first but his Recognizance being generall shall be reduced to a certainty by the Judgment and not before The effect of a speciall bail given in the Kings Bench. The Condition c. That where the above named H. C. and one R. H. in their proper persons have undertaken so the above bounden C F. by a Recognizance or Mainprise taken and knowledged before the Justices of the Kings Bench at Westminster that if it happen the said C. F. to be condemned in any Action at the suit of T. B. Esquire that then the said R. H. and H. D. did grant all Costs and Damages and Executions which should be judged to the said T. B. in that behalf should be levied to the use of the said T. B. of the Lands and Chattels of the said R. H. and H. C. if so it be that the said C. F. do not pay the same Damages himself to the said T. B. or restore and yeild himself againe by meanes thereof to the Prison of the Marshall of the Marshalsey if the said C. F. his Heires c. and every of them at all times hereafter from time to time do well and truly acquit discharge or save harmlesse the said H. C. and R. H. their Heires c. and every of them against the said T. B. his c of and for the breach and forfeiture of the said Recognizance and Mainprise and of and for the execution of the said Action whereupon the same Recognizance and Mainprise was so taken and knowledged and also of for and upon all other Bonds Obligations and Recognizances wherein the said H. C. standeth bound to any other person or persons for and in the behalf of the said C. F. that then c. Cases in Law of divers and sundry manners and matters I. A. by Indenture bearing date the third of May Livery and seisin void but if in this case Livery be made by the Lessor himself at the day that this Lease in futuro is to commence then the Lease is good but if by Attorney then void vide plus de hoc fol. 50. fol. 51. leaseth a Messuage to B. to have to the said B. from the Feast of the Annunciation of our Lady then next coming for the terme of his life and Livery is executed the tenth of March following the Livery in this case is void because every Livery ought to vest the Freehold in him to whome the Livery is made at the time of the Livery and this Grant did not commence untill the Annunciation following so that the livery could not bring a possession before the terme was to begin and where there is no Estate present whereunto the livery may be annexed nor whereunto it may unite in the mean time then such livery is void Plowden fol. 156. An estate of Frank-tenement at the Common Law may not commence in futuro A Frank-tenement be it in possession reversion or remainder may not be limited to commence at a day to come but ought to take effect forthwith in possession reversion or remainder as if a man make a lease for life to begin at Mich. next that is void so if a man make a lease for life to have from the date
of the Indenture or from the day of the date or from the day of the making or from the day of the sealing and delivery such leases are meerly void for the date is excluded and the lessee may not enter untill the morrow for when a man makes a lease for life to commence at a day to come he may not make present livery to a future estate and therfore in such case nothing passeth and Livery or Attornment afterwards will never make a void Grant to be good Coke 5. pars fol. 94. 2. pars fol. 55. If a Lease be made for years or at Will by Deed and Livery and Seisin be made to the Lessee yet he is but Tenant for years or Tenant at Will according to the limitation of the Deed and not Tenant for life by force of the livery But if a lease be made for years the Remainder to a stranger for life and livery is made to the Lessee who enters this livery shall vest the Remainder in the stranger and if the Lessee enter by force of his lease before livery be made unto him then the Remainder is void Condition where an enâ—ry is reserved to a stranger vide casus tertium prox sequent A man enfeoffeth one upon condition that he shall pay ten pounds to B. and upon default that B. shall enter now if the rent be not paid the Feoffee may enter in Law and Conscience and not B. for he is a stranger to the Condition and B. hath no remedy in Conscience to have the land And when the Feoffment is made upon Condition although it doth not speak that for default of payment he may re-enter yet that is implied in the word Condition and as to the words that B. shall enter by default of payment they are void words Doctor Student fol. 93. Condition for non-payment of rent and then an Assise is brought or a Distress taken If a Condition be broken for non-payment of rent yet if the Feoffor bring an Assise for rent due at that time he shall never enter for the Condition broken because he affirmeth the rent to have continuance and whereby waiveth the condition and so it is if the rent had had a clause of Distresse annexed unto it if the Feoffor had distrained for the rent for non-payment whereof the condition was broken he should never enter for the condition broken but he may receive that rent and acquit the same and yet enter for the condition broken Acceptance of rent barreth a re-entry But if he accept a rent due at another day after he shall not enter for the condition broken because he thereby affirmeth the lease to have continuance Coke Lit. fol. 211. b. If a man enfeoff one by Indenture by which it is covenanted and agreed that the Feoffee shall pay to a stranger and his Heires ten pounds per annum at a certaine day and if he faile that the stranger and his Heires may enter in that case if the Feoffee doth not pay it the stranger shall have use of the land in conscience and not by the common law and shall have a Subpaena to constraine the Feoffee to make an estate unto him But in the said case if it had been upon condition that a stranger may enter for non-payment of the rent there the Feoffor himself shall enter and not the stranger for none may enter for a condition annexed to Fee but for lives and when the Feoffor hath entred he is not holden to convey the land to a stranger that ought to have the Rent Doctor Student 100. 101. In Mary Portingtons case Coke 10. pars fol. 39. Incidents to an estate taile It was observed and agreed for Law that to an Estate-taile there are three manner of incidents some by the common Law some by Act of Parliament and some by custome by the common law they are such which are not restrained by the Statute and may not be restrained by any condition 22 E. 3. 17. as Dower and Tenant by the curtesie after issue are incident to an Estate taile and may not be restrained by any condition An Estate taile cannot be restrained by any condition or limitation vide Coke 9. pars fol. 128. 6. pars Sir Anth. Mildmaies case Recovery fraudulent Also the Estate of him and Tenant in taile after possibility are dispunishable for Waste And collaterall Warranty is a bar to the Estate-taile and so is a common recovery also and none of these may be restrained by any condition or limitation by the Statute law as to make leases by the Statute of 32 H. 8. cap. 36. and to levie a Fine by the Statute 4 H. 7 cap. 24. and 33 H. 8. cap. 36. to bar Issues and none of those which are incidents to that Statute by act of Parliament may be restrained by condition for when a man maketh a Gift in taile he tacire doth give these incidents thereunto And therefore to restraine them by condition or limitation shall be repugnant And as to the case upon the Statute of 11 H. 7. it was answered that when the husband for advancement of the wife with competent Joynture and preferment of their Heires of their two bodies engendred hath caused an estate to be made to himself and to his wife in tail and after the deaths of the husband the wives to disinherit the issues of their former husbands suffer recoveries and convey the land to strangers of the bloud of the husband such recovery was worthy by the Parliament to be noted with the marke to be suffered by Covin And the act of the wife either when she is sole or with her and her second husband is so odious that a recovery had upon a good title against them by Covin is made void by the said Act. Fraud So in the said Acts of 32. H 8. and 14. Eliz. when a common recovery was had against Tenant for life to the prejudice of those who had the inheritance that may be well termed covenous and by collusion and yet in the same case when tenant for life the remainder to A. in taile the remainder to B. in taile c. with divers remainders over and Tenant for life suffereth a common recovery wherin he voucheth A. and he the common vouchee that shall bind all the other remainders for no Covin or collusion may bee supposed when the next in remainder in taile which hath the immediate inheritance is vouchee as it was adjudged in Jennings case Fraudulent conveyances to defraud purchasors Vide plus de hoc fo 18. 27 E. cap. 4. every Conveyance Grant Charge Lease Estate incumbrance and limitation of use of Lands Tenements or Hereditaments made since the beginning of her Majesties Raigne or hereafter to be made for the defrauding of Purchasors of the Land it selfe or any part or profit out of it shall be void against the person so purchasing for money or other good consideration and against all
during his life If a rent be granted to one for life by deed and willeth that the Grantee and his heires distraine in the Lands charged for the same rent the grantee hath in this case fee-simple in the rent and not estate for life for the distresse is the creation of the rent-charge and therefore the limitation and creation of the rent-charge shall enure according to the effect and limitation of the distresse for therein he retaineth it for a terme which is as long as he hath in the Land and therefore hath not any certainty that terme will ever commence and therefore the grant void And where Lessee for yeares without any habendum granteth to another all his tearme which shall be to come at the time of his death shall be all void A Termor reciting by Indenture his terme and lease granted all his terme estate and interest to another habendum sibi assign suis immediate post mortem ipsius the Grantor and the case was ruled and adjudged that the habendum was void and the premises of the grant good to make the whole terme to passe forthwith Dier fo 272. If I have a rent in Fee if I grant it to another and stay there this is a grant for life but if I goe further and say habendum after the death of I. S. there all shall be void vide fo 2. If tenant for yeares of land grant out of that a rent-charge to another for the life of the Grantee the grantee shall not have a state of Frank-tenement because he cannot have a stare of Frank-tenement derived out of a Chattel reall but he shall have the rent during all the yeares if the Grantee so long shall live Plowden fo 525. If I have a rent in fee and grant it to another post mortem I. S. this grant is void for the nature of a grant is that the thing ought to passe forthwith If a man make a lease for yeares and afterwards the lessor grants a rent charge out of the Land that grant shall charge the reversion And this proveth that the Land and the reversion are nor two distinct things but that in the reversion the Land is contained Plowden fo 173. The Abbot leased land for life and afterward leased the reversion to have the Land from Michaelmas next after the first Lease ended by death surrender or forfeiture for 21. yeares this is a good Lease Plowden fo 146. A grant of a reversion Habendum the said reversion after the end and expiration of the Tenant for life Attornement needdes for sixty yeares this is a good grant without Attornement If I make a Lease to one for life and afterwards I grant the reversion to another habendum from the Feast of St. Michael next ensuing to him and his heires this grant is void because that no franke-tenement be it in possession reversion or remainder may be limited to commence at a day to come If I have a rent in Fee I may not grant it to commence in futuro or at a day to come but if I have land I may grant a new rent out of it to commence at a day to come for there I shall not have any particular estate in the meane for it was not in esse before but doth commence of new and therefore I may appoint it to commence when I will Pertinentiis A man makes a Feoffement of a house cum pertinent nothing passeth by these words cum pertinentiis but the Garden Curtilage and close adjoyning to the house and whereupon the house is built and no other Land though other Lands have been occupied with the house A man leased a house cum pertin no land passeth by these word but otherwise it is where a man leaseth a house cum omnibus terris eidem partin there the lands therewithall used doe passe If a man makes a Feoffement of a house ac omnes terras tenementa heriditamenta eidem messuagio pertin aut cum eodem occupata locata aut dimissa existent hereby the land used with the house doth pass Tenant in taile and the Lessee shall acknowledge the Tenements to be the right of one A stranger Lease by fine to bind Tenant in Taile and his issue and that A. shall grant and render by the same fine to the Lessee for 60. yeares the remainder to the Lessor and his heires and it was with proclamations which shall bind the taile after proclamation made If Tenant in taile make a Feoffement and a common recovery is had against the Feoffee Recovery the best to barr estates taile and remainders who voucheth tenant for taile who voucheth over c. there the tail shall be barred because that he when he commeth in as vouchee shall bee in the degree of tenent in taile and the recompence in value which he hath or may have shall goe in taile and therefore such manner of recovery is best and the surest way to barr the taile and all the remainders and the reversion also If A. be tenant in taile the remainder to B. in taile the remainder to C. in taile the remainder to B. in Fee A makes a Feoffement the Feoffees suffer a common recovery wherein B. is vouched he over the common vouchee In this case A. is not bound but B. and all the remainders over are barred For although that by the Feoffment of A. all the remainders were discontinued and the estates that B.C.D. had converted into meere rights and though the remainders may never be remitted before the estate taile in possession be recontinued yet in case of a common recovery which is the common assurance of the Land he that commeth in as vouchee shall bee in judgement of Law in privity of estate which he over had though the precedent estate wherupon the state of the vouchee dependeth be devested or discontinued Coke 3 pars fo 60. Tenement is a large word Tenement and Hereditament to passe not onely lands and other inheritances which are holden but also Officers Rents Commons Profits apprender our of lands and the like wherein a man hath any Frankenement and whereof he is seised ut de libero tenemento but an Hereditament is the largest word of all in that kind for whatsoever may be inherited is an hereditant be it corporeall or incorporeall reall or personall or mixt Vesturam terrae If a man hath twenty Acres of Lands and by Deed granteth to another and his heires Vesturam terrae and maketh Livery secundum formam chartae the Land it selfe shall not passe because he hath a particular right in the land for thereby he shall not have the houses timber trees and other reall things parcell of the inheritance but he shall have the vesture of the Land that is the Corne Grasse and Vnder-wood Sweepage and the like and shall have trespasse quare clausam fregit Herbagium terrae If a man grant herbagium terrae he hath a
like particular right in the Land and shall have quare clausuam fregit but by grant thereof and Livery made the soile shall not passe as is abovesaid Herbagium Boscorum If a man let to B. the Herbage of his Woods and after grant all his lands in tenure possession or occupation of B. the Woods shall passe for B. hath a particular possession and occupation which is sufficient in this case and so it was resolved Seperal Pischar So if a man seised of a River and by Deed doe grant Seperal pischar in the same and maketh Livery and Seisin secundum for chartae neither the soile nor water doth passe for the grantor may take water there and if the River become dry hee may take the benefit of the soile for there passeth to the Grantee but a particular right and the Livery being made secundum formam chartae cannot enlarge the grant Aquam suaem If a man grant aquam suam the soile passeth not but the fishing within the water passeth Profits of Land But if a man seised of Lands in fee by his deed granteth to another the profits of his Lands Habendum to him and his heires and maketh Livery secundum form chartae the whole land it selfe doth passe for what is the Land but the profits thereof for thereby Vesture Herbage Trees Mines and all whatsoever parcell of that land doth passe If the Lessor by his Deed license the Lessee for life or years which is restrained by Condition not to alien without license to alien License to alien may not be countermanded and the Lessor dieth before the Lessee doth alien yet is his death no Countermand of the license but that he may alien for the License exempteth the Lessee out of the penalty of the Condition and it was executed on the part of the Lessor as much as might he And so it was resolved Mich. 3 Jacobi in Communi Banco Q If a man make a Lease to another for two and twenty years if the Lessee so long live and the Lessor and Lessee joyne in Grant by Deed of the terme to another and after the Lessee dieth within the terme the Grantee shall enjoy the land during the residue of the terme absolutely A man leased a house by Indenture for years Covenants the Lessee for him and his Executors did covenant and grant with the Lessor to repair the house at all times necessary The Lessee assigned it over to Hide who suffered it to decay the Lessor brought an Action of Covenant against the Assignee and it was adjudged by all the Court that the Action of Covenant lieth although the Lessor hath not covenanted for his Assignes for such covenant that extendeth to the supportation of the thing demised is Quodam modo appurtenant thereunto And in respect that the Lessee hath taken upon him to bear the charges of reparations the yearly rent was the lesser which trencheth to the Assignee Et qui sentit commodum sentire debet onus if the Lessee covenant to discharge the Lessor De omnibus onerious ordinariis extraordinariis and to repair the houses an Action lieth against the Assignee Coke 5. pars fol. 27. S. did covenant for him his Executors and Administrators with the Lessor that he his Executors Administrators or Assignes would build a Brick-wall upon parcell of the land demised S. assigned over his Terme to I. and for the not making of the Brick-wall the Lessor brought an Action of Covenant against the Assignee And thus it was agreed per totam Curiam 1. When the Covenant extendeth to a thing in esse parcell of the Demise the thing to be done by force of the Covenant is quodammodo annexed and appendant to the thing demised and shall remain with the Land and shall bind the Assignee although he be not bound by express words But when the Covenant extendeth to a thing which hath no essence at the time of the Demise made that may not be appurtenant nor annexed to the thing which hath not essence As if Lessee covenant to repaire the houses to him demised during the terme that is parcell of the Contract and extendeth to the supportation of the thing demised and therefore is quodammodo annexed and appurtenant to the house and shall bind the Assignee although he be not bound expresly by the Covenant But in the case at the Bar the Covenant concerned a thing which was not in esse at the time of the Demise made but to be newly made afterward and therefore shall bind the Covenantor his Executors or Administrators and not the Assignee for the Law will not annex the Covenant to a thing which hath not essence 2. It was resolved that in this case that if the Lessee had covenanted for him and his Assignes that they should make a new Wall upon any part of the thing demised that that shall bind the Assignee for although the Covenant extend to a thing to be newly made yet that is to be done upon the thing demised and the Assignee is to take the benefit thereof and therefore shall bind the Assignee by express words But although the Covenant be for him and his assignes yet if the thing to be made or done be meerly collaterall to the land and doth not touch or concern the thing demised in any sort the assignee shall not be charged as if the Lessee covenant for him and his assignes to build a house upon the land of the Lessor which is not any parcell of the Demise or to pay any collaterall summe to the Lessor or to a stranger that shall not bind the assignee because it is meer collaterall and no manner toucheth or concerneth the thing which was demised or which is assigned over and therefore in such case the assignee of the thing demised may not be charged with that more then any stranger 3. It was resolved that if a man demise Sheep or ther stock of Cattell or any other Goods personall for any time and the Lessee covenant for him and his Assignes at the end of the time to deliver such Cattell or Goods as good as the things demised were or such price for them And the Lessee assigne the Sheep over this Covenant shall not bind the Assignee for that is not but a personall contract and wanteth such privity as is between the Lessor and the Lessee and his Assignes of the Land in respect of the reversion But in case of a Lease of Goods personall there is not any privity nor any reversion but meerly a thing in action in the personalty which may not bind any but the Covenantor his Executors or Administrators which represent him the same Law if a man devise a Mease and Land for years with a stock or summe of money rendant rent and the Lessee doth covenant for him his Executors Administrators and Assignes to deliver the stock or summe of money at the end of the terme yet the Assignee shall not
may not be apportioned nor divided B. extinguishment 49. conditions 193. Suspension If a Lease be made for yeares rendantrent upon condition of non payment by such entry of the lessor into parcell of the land leased the condition is suspended in all And if the Lessor after such entry make an alienation of this parcell to a stranger the condition is thereby destroyed and extinct in all for the condition which is a thing entire may not be apportioned by the act of him which is to take a vaile thereof But by the act of the Law or by the Act of him which is charged with the condition the condition may in some speciall cases be apportioned An Obligation is made solvendum numquam this solvendum is void and the thing presently due 21 E. 4. 36. Obligation A. is bound to B. solvendum eidem A. this is a good obligation and the solvendum is void for the plaintiff may declare upon a solvendum to himselfe 4 E 4. 29. An annuity granted pro concilio impendendo or a Feoffment ad erudiendum filium or ad solvendum ten shillings is a condition without words conditionall Condition otherwise the party hath no remedy If the Lessor enter upon his Lessee for terme of yeares and make a Feoffment in Fee with Livery the rent is suspended for ever Suspention of rent Re-entry upon such as faile to pay their Rent at the day although the Lessee re-enter for it is a tortious entry And if it happen c. That then and from thenceforth this present Demise and grant onely in respect and having regard to the state and interest demised or granted or hereby mentioned or intended to be demised or granted to the said A.B. C. and D. and every of them which shall make default of payment of the said yearely rent in such manner and forme as is aforesaid aforesaid to be utterly void and of none effect and that then and from thenceforth at all times then after it shall and may bee lawfull to and for the said Lessor his heires and Assignes into the said Messuages or tenement Lands Tenements Hereditaments and Premises with their and every of their appertenances onely in respect and having regard to the estate and interest demised and granted or hereby mencioned c. to such of the said A. B. C. D. as shall make default of payment of the said rent aforesaid in manner and forme aforesaid wholly to re-enter and the same to have againe and repossesse as in his or their former estate and every such of the said A. B. C. D. as shall make default of payment of the yearely rent aforesaid in manner and forme aforesaid utterly to expell a move and put out any thing in these present Indentures to the contrary therof contained in any wise notwithstanding Tithes To the Parson belongeth of common right the tenths of all manner of yearely encrease which we call Dismes or Tithes and therefore by a Lease of Rectoria the Lessee shall have the Dismes and Offerings of the same Church for they are incident unto it 15 H. 7. 8 Fitz. Na. Br. 175. And if a Parson demise his Gleeb to any man hee shall pay tithe because they are of common right Heire This word Heires in the plurall number is worthy observation for if a man give Lands to one and to his heire in the singular number he hath but an estate for life for his heir cannot take a Fee-simple by discent because he is but one and therefore in that case his heire shall take nothing and observeable is this conjunctive Et. for if a man give lands to one to have to him or his heires he hath but an estate for life for the incertainty ses suis If a man give Lands to two to have and to hold to them heredibus omitting suis they have but an estate for life for the incertainty But it is said if land be given to a man heredibus omitting suis a Fee-simple passeth But follow Littleton Cokes Litt. fo 8. b. Such unity which is within the Branch of the said Act ought to have four qualities Tythes What vnity is sufficient within the Statute of 31 H. 8. to discharge the Land of Tythe first the unity ought to Iusta and rightfull and not by wrong secondly it ought to be equall that is in Fee one with the other for if the Abbots Priors c. have holden by Lease time out of memory that is no unity within the statute thirdly it ought to be perpetuall time out of memory c. and fourthly it ought to be free from payment of any tithes for if their Farmours at will for yeares c. have paid tithes unto them the unity perpetuall shall not serve Coke 11. pars fol. 9. Pruddy and Nappars Case An Abbot is Parson imparsonee and hath Lands within the same Pasonage and all commeth to the King by suppression and the King grants the personage to one and the land to another this was argued upon demurrer in the Kings Bench and the opinion of the Justices there was that Tithes should not be paid more now then the Abbey paid before the suppression The King shall not pay Tithes for Lands which are in his hands although the Leviticall Law saith that every one shall pay Tithes ut dicitur No Tithes shall be paid for Sea-coles which a man findes and diggeth in his Land for it is not yearely profit ut accidit in W. C. and Master Leech Fitz. Na. Br. 53. and Register 54. Note that by the Statute of 27. Eliz. cap. 1. it is ordayned vacua Henry the second granted unto the Abbot of York the tenth of all his Venison in York shire by his Charter By this it appeareth that for Wild Beasts there was no Tythe due for then might not the King have granted another mans Tythe c. Itner Pickering fo 170. b. The Prior of Lancaster did claime the Tythe of Venison and the Tythe of pawnage viz. decimam bestiam in carne corio per manus ministrorum de sorresta and the tenth penny of the pawnage when the pawnage of the Forrest was collected and he made his by vertue of a grant made by the Lord of the Forrest unto one of his Predecessors and his claime was allowed of for good Itin. Lanc. anno 10. Ed. 3. fo 64. b. c. No prohibition lieth where a Parson demandeth Tithes of Horne-beam Sallows Hasells Maples and such like although they be of the Age of 40. yeares for they will not serve to build otherwise it is of Oakes Ashes Elmes and such like and also of their bowes which are above the age of twenty yeares Coment Plowden fo 470. It was never seen that any Tythes should be paid of great trees because they are parcell of the inheritance and this is proved by the Statute of 45. E 3. Cap. 3. in that such case a prohibition lieth If Timber Trees have
next jure propinquitatis that is by right of representation and by right of propinquity And Littleton meaneth of the right of representation for legally in course of discent he is next of blood inheritable And the issue of C. doth represent the person of C. and if C. had lived he had been legally next of blood And whensoever the Father if he had lived should have inherited his lineall heire by right of representation shall inherit before any other though a Mother be jure propinquitatiâ—… neerer of blood But if there be Father and Son and the Father hath a brother that is Uncle to the Son and the Son purchase lands in fee and die without issue living the Father the Uncle shall have the lands as heire to the Son and not the Father yet the Father is neerer of blood because it is a Maxime in Law that inheritance may lineally descend but not ascend yet if the Son in this case die without issue and the Uncle enter into the land as heire to the Son and after the Uncle dieth without issue living the Father the Father shall have the land as heire to the Uncle and not as heire to his Son for that he cometh to the land by collaterall discent and not by lineall ascent and his Uncle enter into the land for if the Uncle in this case doth not enter into the land then cannot the Father inherit the land for there is another Maxime in Law herein implied That a man that claimeth as heir in Fee-simple to any man by discent must make himself heire to him that was last seised of the actual Freehold and inheritance And if the Uncle in this case doth not enter then had he but a Freehold in Law and no actuall Freehold but the last that was seised of the actuall Freehold was the Son to whom the Father cannot make himself heire And therefore Littleton saith And his Uncle enter into the land as he ought by the Law to make the Father to inherit as heire to the Uncle Note that true it is that the Uncle in this case is heire but not absolutely heire for if after the discent to him the Father hath issue a Son or a Daughter that issue shall enter upon the Uncle And so it is if a man hath issue a Son and a Daughter the Son purchaseth land in fee and dieth without issue the Daughter shall inherit the land but if the Father hath afterward issue a Son this Son shall enter into the land as heire to his brother and if he hath issue a Daughter and no Son she shall be Co-partner with her Sister As he ought by the Law These words as a Key do open the secrets of the Law for hereupon it is concluded that where the Uncle cannot get an actuall possession by entry or otherwise there the Father in this case cannot inherit And therefore if an Advowson be granted to the Son and his Heires and the Son die and this discend to the Uncle and he die before he doth or can present to the Church the Father shall not inherit because he should make himself heire to the Son which he cannot do And so of a rent and the like But if the Uncle had presented to the Church or had Seisin of the rent there the Father should have inherited For Littleton putteth his case of an entry into land But for an example if the Son make a Lease for life and die without issue and the Reversion discend to the Uncle and he die the Reversion shall not discend to the Father because in that case he must make himself heire to the Son If the Father make a Lease for years and the Lessee entreth and the Father dieth the eldest Son dieth before entry or receipt of the rent the younger Son of the half blood shall not inherit but the Sister because the possession of the Lessee for years is the possession of the eldest Son so as he is actually seised of the Frank-tenement and the Inheritance and consequently the Sister of the whole blood is to be heire And so if lands be holden by Knights service and the eldest Son is within age and the Guardian entreth into the lands An so likewise if Guardian in Socage enters But in the case aforesaid if the Father make a lease for life or a gift in tail and dieth and the eldest Son dieth in the life of Tenant for life c. the younger brother of the half blood shall inherit because the Tenant for life or Tenant in tail is seised of the Freehold and the eldest Son had nothing but a Reversion expectant upon the Freehold and therefore the youngest Son shall inherit the land as Heire to his Father who was last seised of the actuall Freehold And albeit a rent had been reserved on the estate for life and the eldest Son had received the rent and died yet it is holden by that the younger brother shall inherit because the seisin of the rent is no actuall seisin of the Freehold of the land but Liber Ass part 2. seemeth to the contrary Ideo quaere He that claimeth Lands Tenements Maxime upon collaterall discent or Hereditaments as collaterall heire to any one must claim from such an one that had an actuall possessession and died actually seised of the Frank-tenement and the inheritance in Fee-simple of those lands which he so claimeth by discent and not from such a one who had but a possession in Law or a reversion in Fees expectant on a Frank-tenement discendible unto him But to the lineall heire it sufficeth that the Ancestor should have been heire if he had lived But if such a collaterall heire claime from a collaterall Ancestor that had a possession in Law by his own purchase or reversion in Fee-simple expectant on a Frank-tenement by his own purchase it is sufficient Actuall possession Note that an actuall possession must be gained either by a mans own act or by the actuall possession of another but if neither by his own act nor by the possession of another he doth gain no more then discendeth unto him then the brother of the half blood shall inherit Possessio quid And this word Possessio is no other but pedis positio and extendeth onely to things whereof a man by his entry or other act may gain an actuall possession for when the eldest Son hath not an actuall possession or if it be such inheritance whereof any possession may not be gained per pedis positionem or by any other act then the inheritance by the Law shall discend to the brother of the half blood As for example The King by his Letters Patents createth a Baron and giveth the Dignity to him and his Heires and he hath issue a Son and a Daughter by one venter and a Son by another venture and dieth the eldest Son dieth without issue To whom shall the dignity discend To the younger Son for it may not be said that the
tenants of the Frank-tenement but such limitation after the Statute is void for then the Frank-tenement shall be in suspence for nothing may remaine in the Feoffees But hee said that those remainders in futuro were divested and destroyed by the Feoffment of Tenant for life and although the remainders are in custody of the Law yet they ought to be subject to the rules of the law for the law will never preserve any thing against the rule of the Law and because that the rule of the law is that he in remainder ought to take the Land when the particular estate determineth or otherwise the remainder shall be void and in this case forsomuch as by the feoffment of tenant for life their estate was determined and title of entry given for the forfeiture then those in the future remainder were not in esse to take it for this cause these remainders in futuro by this matter ex post facto were all utterly destroyed made void And no diversity when the estate of tenant for life determineth by the death of tenant of life and when it determineth in right by his forfeiture for in both cases entry is given to him in the next remainder and then if he may not take the Land when the particular estate determineth the remainders void A gift in taile was made to A. C. the remainder to the right heirs of A. S. the Donee made a Feoffment to B. in fee and after A. S. dieth his right heire shall never have the remainder nor any Charter that concerneth it for the estate of the Land was by the feoffment of S. in taile divested and discontinued and all estates vested in the Feoffee and there was not any particular estate either in esse nor in right to support the remainder when that shall fall for by the Feoffment of S. in taile his right heire was utterly gone But if tenant in taile were deceased and dieth that shall not toll the remainder for there is a right of particular estate to support the right of the remainder but when tenant in taile made a feoffment no right remained in him and so note that there ought to be a person in esse of both parties viz. that shall be seised to use and that shall take the use so that there needeth not onely to have a use limited but a person capable of the use when this Statute transferreth the possession thereunto and therefore if a person wanteth it is impossible to have the possession executed by this Statute to one which is not in rerum natura for the Statute saith c. If by a Feoffment to uses the estate shall be utterly out of the Feoffees and all vest in them which have the present uses then the future use shall never rise for it is impossible that it should be raised out of the possession of ceste que use for a use may not be raised out of a use for if A. enfeoffe B. in fee to the use of C and his heires with proviso that if D. pay to C. 100 l. that C. and his heires shall stand seised to the use of D. and his heires that is utterly void for the future use ought to be raised out of the estate of the Feoffee and not out of the estate of ceste que use And it was holden that the Feoffees after the Statute had possibility to serve the future use when it cometh in esse and that in the mean time all the uses in esse shall be vested and when the future use commeth in esse then the Feoffees if the possession be not disturbed by disseisin or other meanes shall have sufficient estate and seisin to serve the future use when that shall come in esse to be executed by force of the Statute and that seisin and execution ought to concurr and meet together at one selfe same time and in such case when the future use commeth in esse the Feoffees shall have by force of the act a qualified estate sufficient to serve the future use All the Justices and Barons of the Chequer but Periam Walmsley Gawdy concluded c. that forasmuch as the Statute of 27. H. 8. doth not extend but to uses in esse and to persons in esse and not to any uses that depend in possibility onely for this cause these contingent uses in the case at barr remaine so long as they depend in possibility onely at the common Law and by consequence they may be destroyed or discontinued before they come in esse and by all such meanes as Uses might have beene discontinued or destroyed by the common law And all the Justices and Barons of the Chequer agreed with the chiefe Baron and VValmsley in this point that these remainders limited in use in the case at the barr shall follow the rule and reason of estates executed in possession by the common law and therefore they al only agreed that if the estate for life in the case at the barr had been determined by the death of the Feoffees before the birth of the eldest son that the said remainders in futuro were void and never shall take effect although that the son were borne afterwards for a remainder in use ought to vest either during the particular estate or eo instante when the particular estate endeth as well as estates in possession All these cases last before touching contingent uses see Coke prima pars fo 120. Chudleis case unto the end of the said case If a future use come not in esse during the particular estate then it shall never take effect because it is in nature of a remainder which ought to take effect and vest during the particular estate and no use shall be executed by 27 H. 8. which are limited against the rule of the common law A use is in nature of a remainder and therefore in the raising of uses the order and rule of the common law touching remainders in all things must be observed but upon and by the limitation of a devise or limitation of a use a remainder may commence upon a condition which goeth to the destruction of the particular estate and one fee-simple may depend upon another If a man at this day make a feoffement in Fee to the use of A. for yeares and after to the use of the wife of B. which shall be this limitation to the right heirs to the wife is void because if it had been void it had been limited in possession So in the same case if the use be limited to A. for life and after to the use of the right heires of B. or to the wife of B. which shall be if A. dieth and then B. dieth or taketh a wife this remainder limited to the right heires or to the wife of B. is void for it were void if it had been limited in possession And 72 H. 8. intended to restore the good and the ancient common law and not to give more priviledge
to some of the neighbours of the towne where the goods were by them safely to be kept and by the opinion of M. Brook tit forfeiture 44. this order ought to be observed concerning the goods of every one which committeth felony untill he be attainted but yet the felon must have reasonable maintenance out of them for himselfe and his family in the meane time Plowden 68. Sur Statute Merchant of the body Lands and Goods Statute Staple of the body Lands and Goods Recognizance Elegit Of the moietie of the Lands and al the goods Executions Of the moiety of the Lands and of all the Goods of the Debitor Capias ad satisfact Of the body only Fieri facias Of the goods only Levare Facias Of the profits of the Lands and Goods Statute Merchant AN execution finall is when the Defendants lands are extended or his goods sold and delivered to the Plantiff who accepting this in satisfaction ends the suit Execution finall quousque An execution with a quousque and not finall is in the case of a Capias ad satisfaciendum where the body is taken to the intent to satisfie the Plantiffe but is no satisfaction but a pledge for the debt Note that the statute Merchant is a bond or obligation of record acknowledged before the Major of London York Bristoll or of other City or before the Bayliffe of any Burrough or Towne or before other persons there to that purpose appointed and it is sealed with the seale of the Debitor and of the King the forme wherof see Wests pre 106. If a Statute Merchant be not sealed by the party non valet 6 R. 2. Fitz. Execution 131. If a man be bound in a Statute Merchant and doe not pay the debt at the day execution shall be done thereof in this manner How the Statute Merchant shall be executed the money being unpaid at the day First the Connusee may come to the Major or other Officer before whom the Statute was acknowledged and pray him to certifie the same into the Chancery under his seale c. and if he will not certifie it then a Writ of Certiorare must be sued forth of the Chancery directed to the said Officer of the place where the Statute was knowledged to certifie the acknowledgement of the same Statute into the petty-bag Office in the Chancery Executions shall be of body and upon the certification a Writ of Execution ss a capias shall goe out against the body only of the Cognisor si laicus sit to take his body and command the Sheriff to keepe him safely in Prison untill he hath agreed for or fully satisfied the debt But the debitor after he is taken hath liberty given him within a quarter of a yeare to sell his lands and goods to discharge his debts and if he do not agree for his said debt within the next quarter Lands and Goods then all his lands and goods shall be delivered by the Sheriff to the Creditors upon a reasonable extent to hold untill the debt be paid and yet neverthelesse the body of the debitor shall remain in Prison untill the debt be paid And this Writ may be returnable into the Court of Common Pleas or into the Kings Bench. But upon the returne by the Sheriff of that Shire to whom the capias was directed quod laicus est non est inventus in Bal. sua then shall go out an extent against all the Connusors lands and goods and against his body see the Register 247. And upon such an extent come to the Sheriffs hands the Sheriff shall or may presently cause the moveable goods of the debitor to be prized and sold as far as the debt doth amount and the debt without delay to be paid Stat. Acton Burnell 13 E. 1. Note that if the Sheriff can finde no buyer he shall cause the same goods to be delivered to the Creditor at a reasonable price as much as doth amoūt to the debt and if the Prizers of the goods doe set an over high price to the damage of the Creditor then shall the things so prized be delivered to the prizors at the same price and they shall be forthwith answerable to the Creditor for his debt But the Sheriff must sell the goods to them which offer most for them And yet if the Sheriff shall sell them at an underprice it seemeth the Debitor hath no remedy Fitz. Extent 7. see the Statute of Acton Burnell If the Debitor have no moveables whereupon the debt may be levied then shall his body bee taken and kept in prison untill he hath made agreement 13 E. 1. If the Sheriff doe not returne the Capias or do return that the Writ came too late or that he directed it to the Bayliffe of some Franchise he shall be punished and yeild damages to the party grieved according to the Statute of Westminster 2. cap. 39. If the Sheriff returne that the Debitor is a Clark then shall there go out an extent against his lands and goods onely to be delivered upon a reasonable extent as aforesaid but his body shall not be taken If the Debitor found sureties which acknowledged themselves to be principall debitors after the day passed they shal be ordered in all things as the principall debitors scil for their bodies and delivery of lands and goods Stat de mercator But so long as the debt may be fully levied of the goods of the Debitor the sureties shall receive no losse Stat. de Acton Burnell And if any of these Debitors being in prison shall happen to escape the Sheriffe or Goaler must answer the body or the debt and therefore it behooveth the Sheriffe and Goler that the prisoners be safely kept Statute de mercator Note that when any Statute Merchant is certified into the Chancery and thereupon a Writ awarded to the Sheriff and returned into the Common place and the Statute there once shewed that howsoever the process after the same shewing be discontinued that at what time the party sueth to have the process recontinued and to have execution of the same Statute that the Justices of the Bench where the Statute was once shewed may upon the same Record make and award full Execution of the Statute Merchant aforesaid without having the sight thereof another time 5 H 4. cap. 12. And the Dier fo 180. Terminum Pasche anno 2. Eliz. where the Connusee of a Statute Merchant having the same certificate into the Chancery upon a certiorari directed to the Major thereupon sued a Capias against the Connusor returnable into the Bench at which day the Sheriffe returned non est inventus and the connusee there shewed the Statute as he ought and had another Capias before the returne whereof the Connusee died and it was doubted whether his Executors should have a scire facias against the Connusor or that they should begin of new ss to sue a new speciall Writ out of the Chancery
deliver his goods in pledge after shal be condemned in personall actions there such Sheep or goods shall not be taken and put in execution untill the lease be determined or the money paid for the pledge Br. distresse 75. So it seemeth of Goods which are distrained for just cause as for rent amercement damage feasant such like and are impounded they are now in custodialegis as long as they are so they may not be taken in execution Br. pledges 28. If the Connusor enfeoffe the King that land is discharged from execution Fitz. 266. so all other lands of the King are exempted from distresses and executions Plowden 242. b. If many men be severally seised of lands and they all severally joyne in one recognizance Satute Merchant or Statute staple in this case the connusee may not extend the land of any of the Connusors onely but all the Connusors ought equally to be charged the one of them alone shall not beare all the burthen because they are all in equall degree and in executions which concerne the realty and charge of the land the Sheriff may not doe execution of the Land of the one alone Co. 3. 13. a 14. When the Connusor hath aliened part of his land yet the Connusor himselfe at the Will of the Connusee may be solely charged because he himselfe is the person which was the debtor and which was bound and therefore he and his lands may be solely charged Co. 3. 14. Br. suite 10 12. And as to a purchasor of lands although their said Lands after the judgement recognisance or Statute be subject to the execution yet such purchasors have greater priviledges given to them by the law then the Connusor himselfe or his heires have So that if land of a purchasor be onely extended for the entire debt such purchasor shall have contribution against all the others of the purchasors and against the connusor or his heir but note that by this word contribution it is not to be understood that the others shall give or allow to him any thing by way of contribution but ought to be intended that the purchasor or party which hath his lands onely extended for all may by Audita querela or scire facias as the case requireth defeate the execution and therby shall be restored to all the meane profits and drive the Connusee to sue execution of all the land so that in this manner every one shall be contributory that is the land of every ter-tenant shall be equally extended co 3. 14. But if the Connusor enfeoffee the connuse of parcell of the land and a stranger of another parcell and reserve parcell in his hands now the connusee shall not have execution against the stranger or any other Feoffee for all shall be extinct against the Feoffees but yet against the connusor the connusee shall have execution of parcell which remaineth in his hands If connusor of Statute Merchant or statute Staple be taken and die in Execution yet the connusee shall have execution of his lands and goods co 5. 86. 87. Fitz. 246. b. If the connusor upon a Statute c. be taken in execution and escape yet his goods and lands upon the same statute may be extended for the escape and the action which the Plantiff had against the Sheriff for the escape is not satisfaction for the debts co 5. 86. By the statute of 3. Jacobi cap. 8. no execution shall be stayed or delayed by Writ of Error or superseded for reversing of any judgement in any action of Debt except the party which sued such Writ of error with two sufficient sureties be first bound to the party for whom such judgement is given to prosecute the said Writ of error with effect and to pay all the debt damages and costs c. if the judgement be affirmed and also costs and damages for such delay And therefore if a man be condemned in any court and his body put in execution and after he procures a Writ of corpus cum causa or certiorari to be directed to the Sheriff to remove his body there the Sheriff upon the said Writ ought to return the truth scil that his prisoner is condemned by judgement given against him upon which the Prisoner shall be forthwith remanded to prison there to remaine untill he hath satisfied the Plantiff 2 H. 5. cap. 2. Fitz. 151. e. If a statute be acknowledged to 2. and the one of them after purchase lands of the connusor then it seemeth that the said statute hath lost his force against both see the Register 147. If execution be sued of the body and of the land and after the connusor enfeoffeth the connusee of the Land or surrender parcell descended to him in all these cases the body shall be discharged for by discharge of part of the thing in Execution all is discharged Plow 72. b When the extent upon a Statute is satisfied and ran out by efluxion of time the Connusor may enter againe Co. 4. 67. But when the extent is satisfied by casuall profit the Connusor must have a Scire facias ibid. Defeasance to a Statue made after execution is good and defeateth aswell the Statute as the execution thereupon Co. 6. 13. But note where the Statute of Actor Burnell is that if the Prisors of the goods of the Connusor prize them too high in favour of the Debitor and to the dammage of the Creditor the things so prized shall be delivered to the Prisors by the same price and they to yield the Credtior his debt these Statutes are penall and extend not to any other Writs of execution but upon the Statute Merchant or Staple or recognizance and therefore upon a Writ of Elegit or other Writ of execution upon judgement if the extenders or prisors praise the lands or goods too high the Plantiff scil the Creditor hath no remedy Benl 4. P. and M. Note that when the lands or goods are delivered to the extenders they forthwith shall answer to the Creditor his debt by the words of the Statute and yet they shall not pay the money untill the daies assessed and limited in the extent Plow 205. b. If the Debitor complaine that his goods or lands were sold or delivered to the Connusee at too low a rate yet he hath no remedy Stat of Actor Bur. for in such cases the Debitor may pay the money and recover his lands and good 15 H. 7. 15. The creditor may well refuse to accept because the Sheriff will not deliver but parcell of the lands of the Connusor for if he accept it he shall be concluded to demand all afterward Fitz h. execution 84. 88. Execution upon a Recognizance REcognizance is an obligation of record acknowledged in any Court of Record or before any Judge or other Officer having authority to take it as before the Judges of the Kings Bench or of commons Pleas the Barons of the exchequer the masters of Chancery the Justices of Peace
may begin in futuro 93 Where a thing in Grant may commence in futuro 105 Estrey what properly an Estrey 84 Execution land at what time liable to execution what not 85 The severall sorts of them 153 Finall what 154 Quousque what 154 Statute Merchant and Staple 154 155 156 157 Exposition of words Tenement and hereditament 106 Vesturum terrae 106 Herbagium terrae 106 Herbagium bonorum 106 Seperalem Pischariam 106 Aquam suam 106 Profits of lands 108 Executors when chargeable 40 When they have a trust 76 And when an interest 76 What they have 86 What they may doe before probate 86 What they are to doe in proving the will 86 When they may refuse What they may retaine to their owne satisfaction 88 What they are to pay and what first Where one may release and doe an act without his companion and charge him 87 Who shall be executors and of an executor of an executor 88 F FEe what words raise a fee 59 Feoffment When a Conveyance is called a Feoffment 61 Fine what it is and what passes by it 61 What time to claime and who are bound by them 61 Vpon fines Feoffments and recoveries how the estate settles 62 What good to bind an estate taile with proclamation 105 Forfeitures upon what wrought 40 85 What estates of what persons wrought by it 40 Forged Deeds what Deedes are suspicious 116 Fraudulent Deeds what so accounted 84 68 What accounted made bona fide 82 Fresh suite upon what the party shall have his goods againe 84 G GRant where by the grant of one thing another passes 69 H HEires where bound by the Acts of their Ancestors 38 39 40 How to be charged 39 Who may be heires 40 41 Where they may take 77 What words in devises carry estates of inheritance 78 79 80 When Inheritances are lineall or collaterall and how shall inherit 124 125 Who is to be preferred 124 125 126 127 128 129 The heirs of what persons may inherit 129 Herriots what may be seised what not 131 I JVdgement upon what to be given 40 Joynture what a good Joynture and the manner of making it and its quallifications 70 71 Where it is a barre of dower where not 72 L. LIcence to Alien where may be countermanded where not 107 Limitation what is a limitation and what an interest 12 What words make it 95 Livery and Seisin how many sorts 35 How may be done 35 What Acts amount to it 36 37 What passes by it 36 Of what things to be given 37 Within the view and who to take by it 37 Who may do it 36 Where void 93 Where free hold passes without it 98 122 Legacy where to be taken without the consent of the executor 88 What to be paid first 89 VVhat to be sold to pay debts 89 Leases for how long to be made 60 Who may make leases for three Lives or twenty one years 66 And what quallification they must have 66 67 68 69 70 VVhen shall commence when not when inclusive and exclusive 131 132 Livery Severall and speciall and the difference 116 M. MAintenance what it is 134 Mise what it signifies 118 Misnosmer where a Party misnamed in a Deed shall take advantage of it 147 N. NOtice where requisite 33 O. OFfices where may be discharged without their Fee where not 101 Where may be forfeited 101 102 P. PArdon what operation it hath what not 41 42 Possession what it is 128 The several sorts of them 128 What actuall and what in Law ibid Purchase who may purchase 41 R. REleases of demands how far go 49 90 What they will extinct what not 55 Before Interest and where good 901. 91 VVhat words sufficient to work it 91 70 Reddendum the manner of it 13 24 Remainder what it is and its severall properties 2 3 4 5 10 Vpon what estate it may depend 7 VVhen it is contingent 89 VVhere good 48 How limited is void 89 99 Rent in what manner may be granted 5 VVhat persons shall have Rent and what time 22 24 VVithin what time to be payd and upon what to take advantage 22 23 VVhere the death of the Party shall discharge it 23 24 29 32 VVhere reserved shal go to the parties where not 27 VVhere the Profits shall be accounted as satisfaction 30 Remitter where wrought 16 Reversion what it is and why so called 101 Revocation where good 45 46 VVhere extinct 46 How construed 47 VVhere uses are revocable 55 VVhere may be done in part 5â—1 By what to be made ibid. VVhat Acts a good Revocation 57 58 VVhat to be observed in them 58 S. SAle in Market overt where it barres the right owner where not 83 Scire facias upon what Execution 156 157 Surrenders The force of Surrenders in Law 72 VVhat drowned by them 72 VVhere a Deed is surrendred 73 74 Who may surrender 74 What requisite in them 75 The severall sorts of them 75 76. What is surrendred by expresse words 76 Suspence What estates may be suspended by what 13 4. Where a Lease or other estate is suspended in the whole where but in part 118 119 Kings Silver what it is 118 T. Tail what are speciall and what generall estates Tail 16 Who may make gifts in Tail 77 What incident to it 95 Tender at what time to be made to save a condition 30 Where it is a Barre or the party may plead uncore past 111 112 Tithes to whom they belong 120 Who shall pay them 121 When Vnity of possession discharges them and what 121 For what things to be paid 121 122 When a Place is discharged by what act 134 135 Toll when to be payed 134 Treasure Trove VVhat said Treasure Trove 85 V USes the manner of their creation 16 17 18 19 20 How may be raised 47 To the uses of a mans last VVill and Testament 72 Vpon condition repugnant where void 79 VVho may take the force of it 81 Vsury what it is and when within the Statute 121 122 123 124 W. WArranty What words make a generall VVarranty 49 VVard where the heir is out of VVard 131 VVast the full definition of the word without impeachment of wast 99 50 VVho may punish it 50 51 The severall kinds of it 51 52 What the destruction 53 What recoverable ibid. VVhat processe in it 51 53 VVill and Testament what passes by it 64 VVhat sufficient to passe Lands 64 Of what things may be made 64 65 78 82 Where alterable where not 66 79 80 81 Wreck VVhat made VVreck 84 Y. YEare How many Parts it is divided into 118 FINIS