be given by Deed with all the Woods and within the Deep there is a Letter of Atturny to make Livery if Livery be not made yet his Executors shall have the Wood. But if Livery be made then the Wood shall go along with the Land If A. requires another orgives him authority without Deed to write seal and deliver a Grant of a Rent Charge out of the Land of the Grantor in the name of the Grantor which is done the Grant is good for if I make a Grant and command one to deliver it it will be good without Deed. So if I by Paroll deliver it him as an Escrowle to be delivered as my Deed upon Condition to be performed that is good But an Authority to make Livery must be by Deed. Neither shall a Woman aver the Assent of the Father for Dower Ex Assensu patris without Deed. Neither can the Lessor Authorize the Lessee to commit Wast without Deed. If an Infant delivers a Deed which bares date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date no more than a Fem Covert otherwise every Infant may be deluded Debt LEssee for forty years makes a Lease for ten years rendring a Rent the first Lessee surrenders the Lessor brings Debt against the second Lessee Quaere A man shall not have Debt for Releif or Escuage granted unto him for it is mixt in the Realty but his Executors shall but he must distrein So the Lord shall not have an Action of Debt for Ayd pur file marier or pur fair fits Chivalier But if he dies before it be levied the Tenant shall be discharged of it An Action of Debt shall not be brought against the Heir and his Brother in Borough English where the Eldest hath nothing by descent as it shall be against the Heirs in Gavel Kind for there he may have a joint judgement against all and not against the Eldest in the other case for he hath nothing upon which it may be levied Quod nota An Action of Debt brought by Executors shall be in the Detinet only although it be for Arrears of Rent incurred after the death of the Testator So it shall be against a man acccomptable to the Testator A Seignory is granted for years the Rent is Arrear and the Tenant dies the years expire if the Grantee shall have an an Action of Debt against the Heir because it was due in the time of his Father and also some was due in his own time or if he shall have an Action of Debt against the Executors for that which was due in the Testators life time or is without Remedy Some say that the Heir shall not be charged in Debt if the Father die not oblige himself and his Heirs expressely and the Executors shall not be charged for they were not chargeable by the death of the Testator for at that time the Grantee could not have an Action of Debt but his remedy was by distresse for then the years were not expired and so no remedy 9 H. 7. 17. a. Co. 4. 49. An Annuity is granted for the life of A. the Grantee releases all Actions of Annuity he shall not have an Action of Debt for the Arrerages although that A. dies afterwards Devastavit vide Executor Devise A Woman hath Issue a Son and by another Husband hath Issue another Son the second Husband devises Land to the Wife for life the Remainder to the next of the blood of the Wife The youngest Son shall take in Remainder although it be true that one is not nearer of blood to the Mother than the other and the Eldest is of the most worthy blood yet he is not neerest and so it is uncertain who should take according to the letter of the Will yet the Intent which is always to be considered in Wills shall be construed in Favour of the youngest because he was Issue of the Devisor Pasc 5. Eliz. A great Case was argued in the Exchequer There were three Brothers the second brother purchased Land and devised it to his Son in tail and if he died without Issue that then it should remain to the next of the Kindred of the Lineage of the Father the Eldest Son was then dead having a Son it was adjudged that the Son of the Eldest should have the Land for he is next of the Lineage For Lineage shall be taken in a Lineall descent which is the most worthy Line Dy. 333. pl. 29. A Devise to the next of Blood the Son of the Eldest Brother shall have it before the younger Brother If Land be devised upon Condition or rendring a Rent that is void for it cannot be good in either case except the Reservor might take advantage of it and the Heir cannot have that which his Ancestor could not And if a man devise Land with Warranty that is void because the Father was not bound But to some there seems a Diversity for in the last case there is a Charge to the Heir and in the first it is for his advantage If the Lord devises Land to his Villein this is an Infranchisment against the Heir and yet he was the Villein of the Heir when the Devise took Effect A man having three Daughters devises to themâ— hundred pound a piece for their marriage Portions and if any of them die before their Marriage then the other should have her Portion by Survivor one dies in the life of the Father the other shall have three hundred pound after the death of the Father and yet nothing survived for she had nothing in possession yet they shall take it by the intent of the Devisor for when he says that if any of them die before their Marriage that the other shall have her Portion this makes it in nature of a Remainder and then though the first Devisee does die in the life of the Testator yet he in Remainder shall take the Estate per Manwood Dy. 127. P. 59. As a Devise to a Monk the Remainder to another the Remainder is good A. Devises Land upon Condition and if the Condition be broke that his Executors shall sell the Land the Devise as to the Executors is void for the Heir must enter for the Condition broken and then he shall hold it discharged of all Conditions A. Devises twenty pound to B. when he arrives at the age of six and twenty years and if he dies before he Devises it to C. B. releases to the Executors of A. before he attain◠〈◊〉 age of six and twenty years if it shall be a Bar Quaere If A. Devises twenty pound yearly for twenty years the Devisee hath no Remedy for his not Isâ—uing out of any Land for he can not take it as a Legacy and an Anâ—â—â—â—y does not lie against Executors for the Testator was never charged A Jointure cannot be made by Devise for Land was not then Devisable and the Wife
was discovert when the Devise took effect If Land be Devised to an Alien and he is made a Denizen before the Devisor dies he shall take by the Devise for all takes effect after the death of the Devisor Disablement IF I grant an Annuity upon Condition that the Grantee shall promote me to a Benefice within seven years within which time I marry and my Wife dies within the Term yet the Grantee is discharged for I had once Disabled my self to accept of the Benefice and he had the Liberty to have tendered it at that time and I being then Disabled to receive it it countervails a Tâ—â—â—â—â—r and Refusall So if I am bound to marry a woman by such a day and she marries another and the Husband dies before the day yet I am discharged of my Obligation But if he who was to be promoted or married had been a Stranger to the Obligations it had been otherwise If I am bound to enfeoffe the Obligee before a day and before the day he takes a Lease for yeares of the same Land which expire before the day yet I am discharged but it had bin otherwise if there had been no day limited for there it is not to be done before request A Feoffment is made to Re-infeoffe the Feoffee grants a Rent Charge the Grantee brings a Writ of Annuity and recovers if this be a Disablement to Re-infeoffe Quaere Disagreement A Lease is made to Baron Fem for the life of the Baron the Remainder to the Right Heirs of the Husband the Husband dies the Wife cannot Disagree for the Estate is determined But if the Estare had been made to them by a Disseisor she might disagree to save herself from Damages If Land be given to Baron Fem in Fee and the Baron makes a Feoffment and an Ancestor collaterall of the Wife Releases with Warranty and dies the Husband dies the Wife cannot disagree and claim her Dower for her Estate was bound and her Right determined by the Warranty If the Husband be remitted to an Estate the Wife may disagree and claim her Dower An Atturnment is good although he that Atturned doth after disagree Vide Dower Baron Fem. Discharge IF the Disseisee enters upon the Heir of the Disseisor end grants a Rent Charge and dies the Issue shall hold it discharged for he is remitted to his ancient Right So if the Heir of the Disseisee enters upon the Disseisor and grants a Rent Charge and the Disseisee dies But if the Son disseises the Father and A. and the Father dies he shall hold it charged for he is not remitted If the Father disseiseth the Grandfather and grants a Rent Charge and dies the Son shall hold it discharged for he claims from the Grandfather Lord Mesne and Tenant the Tenant aliens in Mortmain the Lord enters and grants a Rent Charge and after his Title is come viz. the year is past and the Mesne hath not entred the Lord shall hold it discharged and his Issue also for he shall not be remitted for a Title as he shall be for a Right accrued If the Father disseises the Grandfather and dies and the Son enters and grants a Rent Charge and the Grandfather dies he shall hold it discharged although he was of full age at the time of the Grant As if Tenant in tail infeoffes his Issue within Age who grants a Rent Charge at full age and then the Tenant in tail dies the Issue shall hold it discharged If the Disseisor grants a Rent Charge to the Disseisee who grants it over and after enters he shall hold it discharged So if Tenant Pur auter vye grants a Rent Charge and the Reversion descends upon him and cesty que vye dies he shall hold it discharged If a Stranger disseises the Father and grants a Rent Charge and infeoffes the Son and the Father dies he shall hold it discharged Land is given to A. and B. for their lives the Remainder to the Right Heirs of him who survives B. grants a Rent Charge in Fee A. dies if the Heir of B. shall hold it discharged Quaere If it had been given to them Quam diu simul vixerint and to the Heirs of him who first dies the Heir shall not take the Land by descent but by purchase A. having a Wife makes a Feoffment upon Condition and dies the Wife is endowed by the Feoffee and then grants her Estate to the Feoffee reserving a Rent by Indenture the Heir enters for the Condition broken he shall hold it discharged of the Rent Note her Title to the Land was Paramount to the Condition but Puisne to the Rent If a Dean hath a Rent Charge in Fee and the Tenant aliens the Land to the Dean in Fee the Lord enters for the Alienation in Mortmaine he shall hold it discharged of the Rent for when he entred for the Alienation in Mortmain he did not avoid the Livery but affirm'd it by his Entry So if the Dean before the Entry had entred into a Statute the Lord should have holden it discharged of the Execution But if Tenant for life aliens in Fee to him that hath a Rent Charge issuing out of the Land and the Lessor enters for the forfeiture he shall not hold it discharged for the Lessor hath the same Feesimple he had before the making the Lease and has his own Estate and not the Estate which the Lessee gave to the Feoffee Many think the contrary in the first case for his Estate in the Land was always defeasable Vide Charge Rent Execution Discent A Disseisor infeoffes his Wives Father who dies so that the Land descends upon the Wife if the Disseisee may enter Quaere The Husband surrenders the Freehold of his Wife to him in Reversion who dies seised if the Wife may enter after the death of her Husband for there seems to be a discent If a Gift in tail or Lcase for life be made rendring a Rent with a Re-entry for default of payment the Lessor hath cause of Entry and the Estate in tail expire or Lessee for life dies after a Disseisin or Descent yet the Lessor c. may enter for the Land was recontinuable at all times And if Tenant for years with a Condition be outed after the term and a Discent cast the Lessor shall enter for the Condition broken Lessee for years the Remainder in tail he in Remainder grants in Fee the Lessee at turns the years expire the Grantee enters and dies seised Tenant in tail dies the Issue may enter for the Grant was but for the life of Tenant in tail and then he died not seised in Fee and if the dying seised had been after the death of Tenant in tail If it will take away the Entry Quaere But if the Issue of the Issue of the Grantee had entred and died seised the Entry had been taken away If Tenant in tail infeoffs his Donor who dies seised the discent will take away the Entry
for the Husband cannot take it immediately from his Companion therefore for him it is void and good for the Wife As if a Feofment be made to a stranger and the Wife of the Feoffor The Husband is bound in a Statute and after he and his Wife levy a Fine of the Wife's Land to A the Husband dies The Statute shall not be extended during the Wife's life for nothing passed from the Husband but the estate which he had in right of his Wife And A shall have the same Advantage which the Heir of the Wife should have had Tenant in tail enfeoffs one Daughter within age and dies she is remitted but the other Daughter shall not take Advantage of it Agreement IF I disseise one to the use of my self and A who after Agrees to the disseisin we are joint-tenants 21 Ass 49. If one sister in tail enters upon the Discontinuee of her Father claiming to her and her sister and the Discontinuee ousts her and she recovers in an Assise the other sister shall have the moyty by her Agreement But if I disseise one to the use of A. after twenty pounds received by me of the profits or to the use of my self for life and after to his use in fee there he shall have nothing by his Agreement for I cannot apportion the wrong If I disseise my Tenant for life to the use of A he shall have but a Free-hold by his Agreement If the Issue in tail within age by covin commands A to disseise the Discontinuee of his Father A disseises him to the use of B for life and after to the use of his own right Heirs B agrees A dies B dies the Heir of A enters and enfeoffs the Issue he is remitted because of his minority An Agreement cannot be to parcel of an Estate Aid IF Coparceners make partition and one has the Seignority and a Tenancy escheats and she is impleaded of that she shall not have Aid of the other Coparcener for Aid cannot be granted but of Land descended If one Acre is given to the eldest Daughter in Frank-marriage and another in fee descends to the youngest if she shall have Aid is the question Alien IF a Reversion be granted to an Alien and after he is made a Denizen and then the Tenant atturns he shall not take to his own use A Lease for years is made to an Alien upon condition to have Fee he is indenized and hath License to purchase and then performs the Condition The King shall not have the Fee for it hath not a Relation as to the devesting of the Fee further than the performance although that for Charges and Incumbrances it hath a larger Relation If an Alien Disseisor be made a Denizen the King shall not have the Land if the Disseisee doth after release unto him but if an Alien had been the Feoffee of a Disseisor it had altered the case for it is a new purchase in one case and but an extinguishment of a right in the other and it seems that the Issue of such an Alien born within the Realm shall be in ward for Land descended to him on the part of the Mother during the life of the Alien if he be not Heir apparent And a man born in England cannot make himself heir in special tail to a Baron Fem whereof one is an Alien neither shall he have an Appeal for the death of such a Father or Mother Alien If Land be devised to an Alien and he is made a Denizen and after the Devisor dies there he shall take by the Will for all takes effect by the death of the Divisor But in the case above if when the Office is found the Lease should be adjudged in the King from the beginning then it takes away the Condition and then he could not acquire a fee by his performance If a man seised in fee marries an Alien and makes a Feofment and she is made a Denizen and the Husband dies she shall not recover her Dower Annuity IF an Annuity be granted for the life of I and the Grantee releaseth all Actions of Annuity to the Grantor it seems he shall not have an Action of Debt for the arrerages after the release and after the death of I. for when they were due he had no remedy If a Rent charge is granted out of Land in Fee the Heir of the Grantee shall have his election to bring his Writ of Annuity and so shall the Executor of the Grantee if the Grant were for years And if the Wife brings Dower the Heir shall not say that he will take it as an Annuity for it must be determined by the bringing of his Action and if she be once endowed the Heir shall not have an Annuity of the other two parts for his Writ ought to be grounded upon the Deed and that for all or for none for there can be no apporcionment of an Annuity or personal thing Appendant IF an Advowson be Appendant to a Mannor and the Advowson is granted to one for life and then the Grantee is enfeoffed of the Mannor cum pertinentiis yet the Free-hold of the Advowson is not Appendant But if the Grantee had regranted it to the Grantor it had been Appendant But if A. makes a Lease of his Mannor for life saving the Advowson and after grants the reversion of the Mannor una cum Advocatione the Advowson shall never be Appendant to the Mannor again Husband and Wife make a Feoffment of the Mannor of the Wife to which an Advowson is Appendant the Feoffee makes a Feofment of one Acre with the Advowson the Husband dies the Wife recontinues the Mannor she shall present without any recontinuance of the Acre for it was not appendant to the Acre for if a man makes a Feofment of an Acre parcel of a Mannor cum pentinentiis nothing of the Advowson which is appendant to the Mannor passes If one hath a Mannor and makes a Lease for life of all the Mannor except one Acre now the Fee of the Acre is divided from the Mannor during the Lease for life but after the determination of the Lease it shall be appendant again Apporcionment TWo Joint-tenants by Twelve-pence the one grants what belongs to him upon condition the Lord grants the services of one and Atturnment is had the Condition is broken the Grantor enters he shall hold by Twelve-pence also for by the Grant no Apporcionment is made and then by the Grant Twelve-pence passed and Twelve-pence remain If tenant for years enfeoffs the Lord of one Acre the Seignory shall be Apporcioned A Rent is granted in Fee out of Land in Borough-English and at Common Law the Grantee dies leaving two Sons the eldest shall have all for the rent being entire cannot be Apporcioned and the eldest being Heir shall have all If a Rent charge be granted in Fee and the Grantee dies and his Wife recovers her Dower of the third part of the Rent the Heir cannot
is void as to the Wife and good to the Stranger though the Livery were made to the Stranger in the name of both Three Jointenants and one gives his part with his Daughter to his Companion in Franckmarriage and by the same Deed releases to them in Frankmarriage and makes Livery this is a good gift in Franckmarriage by some for notwithstanding one Jointenant cannot enfeoffe his Companion yet he may enfeoffe his Companion and another and the Livery made to the other shall vest the Land in both and that is for the advantage of a third person As in Gascoignes case 7 H. 6.3 It was not a surrender for the advantage of the third Neither in 21 H. 7. 41. for the advantage of the Husband So it shall not be void here for the advantage of the third person But others are of a contrary opinion and they say the Husband cannot take it immediately from his Companion and therefore it is void as to him and good as to the Wife the other part of the Deed viz. the Release will inure to the Husband And here both the things make the Frankmarriage good for the Livery and the Deed may be delivered both at one time If the Husband be Tenant for life and the Reversion be granted to him and his Wife the Fee remaines in them in Jointure for there be no Moities between them Land is let to Baron Fem Habendum the one Moity to the Husband the other to the Wife the Land is confirmed to them in speciall tail rendring a Hawk the Lessor shall have two for the Baron shall have one Moity of the Inheritance for his possession was severed from the possession of the Wife viz. in the one Moity So that of that Moity the Husband is seised in speciall tail and the Wife hath nothing Of the other whereof the Wife was Tenant in Common with the Husband the Baron was thereof seised in Right of his Wife then he had a sufficient Estate whereupon a Confirmation might inure jointly to them If Land be given to the Baron for life the remainder to the Wife for life and their Estates are confirmed in tail The Baron shall have one Moity in tail only he and his Wife the other Moity and yet the Tail is not executed for any part Quaere for this is a good case If Husband and Wife make a Lease of the Wives Land rendring a Rent the Husband distreins and Avowes and dies the Cattle are discharged for they do not belong to the Executor being they are but a Pledge and the Wife is to have the Duty and therefore the Executor cannot detain the Pledge and it is not like the case where the Husband recovers upon an Obligation made to him and his Wife 33 H. 6. 48. Although the Husband can give nothing to his Wife immediately yet if a Disseisoress makes a Lease for life the Remainder to her self in tail the Remainder to A. in Fee and after marries the Disseisee who Releases to the Tenant for life this shall inure to the Wife A Reversion is granted to Baron Fem and to a single man and woman in Fee the single persons marry and the Tenant atturns then the single Man and Woman are divorced the Baron Fem shall have but a third part If a man makes a Feoffment to A. and a Fem sole With a Letter of Atturny to deliver Seisin and before Livery they entermarry they shall take by moities Land is given to A. and B. his Wife and to another Baron Fem in Fee they are disseised and A. releases to the Disseisor and then A. and B. are divorced for cause which hath Relation B. and the Baron Fem bring an Assise leaving out A. and some think it is maintainable for when A. and B. are divorced yet the other Baron Fem shall hold the Moity to them for being the purchase took effect and vested by the Livery and at that time the Baron Fem not being divorced took a Moity that remaines still for to all Strangers A. and B. shall be said to continue Husband and Wife for if a Stranger had bought the Goods of the Wife and then they had been divorced yet he shall retain the Goods as it is held in 26 H. 8. And if the Husband had made a Feoffment the Wife could not have an Assise against the Feoffee but must bring her Cui ante Divortium A Reversion is granted to a man and a Fem sole and they marry and the Tenant atturns they take by Moities for the Atturnment does operate upon the Deed so if they marry before Livery is made If Baron Fem make a Lease for life and pray to be received and the Husband makes Default and upon his Default the Wife is received now she admits the Discontinuance yet if she be barred she shall have her Cui in vita for she had not Title then to have a Cui in vita for that accrues by the death of her Husband If a Feoffment with Warranty be made to a man and a Fem sole and they marry and are impleaded and Recover in Value the Husband dies they did not take by Moities If Land be Bargained and Sold to a man and a Fem sole and they marry and the Deed is inrolled there they take by Moities for it hath Relation But if Baron Fem Tenants for life before the Coverture recover in value by reason of the Reversion with the Rent they shall take the value by Moities But if a Lease be made to a Man and a Woman for life upon Condition to have Fee they marry and after performe the Condition they shall not have Moities in the Fee If a man be seised of Land in right of his Wife and Warranty is made to them and the Heirs of the Husband and they recover in value there shall be no Moities for the Recovery in value must be according to the nature of the Estate If a Fem being Tenant for life marries and the Husband atturns to the grant of the Reversion and then he is Divorced yet it will binde the Wife If a Woman hath a Lease for twenty years and the Lessor confirmes to the Husband for forty yeares who dies she shall have the Residue of the twenty years The Husband hath a Term in right of his Wife and grants so many years as shall be behind at the death of him and his Wife Quaere if this be a good Grant The Husband is bound in a Statute and after he and his Wife levy a Fine of the Land of the Wife to A. the Husband dies the Land shall not be extended in the hands of A. for nothing passed from the Husband but the Estate which he had during the Coverture and A. shall have the same Benefit the Heir of the Wife should have had But if the Husband had made a Lease for yeares or granted a Rent Charge before the fine levied there the Conisee should never have
avoided it because they had been executed at the time of the levying the Fine If Husband and Wife accept of a Fine sur conusans de dvoit come ceo c. from B. of the Wives Land and they render it to him in tail yet the Reversion is in the Wife onely and the Husband hath nothing but by reason of the Coverture 40 Ass p. 4. A Fem covert is infeoffed the Husband being beyond Sea who upon his return disagrees yet the Freehold shall not be devested without an Entry and if the Husband dies before his Entry the Wife is Remitted and the Title of Entry which the Feoffor had is taken away If a Fem tenant for life marries the Husband makes a Feoffment the Lessor enters the Husband dies she cannot avoid the Forfeiture If a Fem covert be infeoffed and disseised by a Stranger the Husband disagrees to the first Estate and dies the Wife may enter and retain against the first Feoffor for the Disagreement was frivolous the Wife having only a Right Quod not a. If a Fem Jointenant for years marries the survivor shall have all the Term. So if an Obligation be made to a Fem sole and another and she takes Husband and dies the survivor shall have all for 't is a Chose in action If a Fem hath a Term and marries and dies the Ordinary may commit Administration of it to a Stranger But the Law seems to contradict this for the marriage is a Gift in Law the Wife dying first If a Fem hath a Lease for years and marries the Villaine of the Lessor he may enter into the Land as a Perquisite The Husband is Tenant for life the Remainder to the Wife for life the Remainder to the Husband in tail how the Husband might discontinue the Estate in tail without barring of it was the Question The intention was this that the Husband and Wife should make a Lease to A. for the life of the Husband and Wife and the Survivor of them and that A. should grant his Estate to the Husband and then he should make a Feoffment and that would prove a Discontinuance Land is given to A. and a Fem sole and to the Heirs of the Body of the Woman begotten by A. They marry and have Issue the Husband aliens a Moity and dies the Issue dies without Issue If the Woman may enter into the Moity for the forfeiture being she could not enter at the time of the Alienation And also she is Tenant in tail after possibility c. in which case she hath but a Freehold in Remainder as she had before But otherwise if it had been an Estate in tail in remainder after the Estate vide 45 Ass 6. The Husband makes his Will and devises out of his Mannor of Dale a certain Rent to his Wife for her life in consideration that she should not have her Dower and dies The Wife recovers by Default in Dower the third part of the Land she shall have the whole Rent out of the two parts for the Recovery is upon a good Title And a Devise cannot be averr'd to be a Jointure within the Statute for at that time neither Land nor Rent were Devisable and therefore she was discovert when the Devise took effect and so both out of the words of the Act and also out of the Equity and then from that time the Title of the Land relates Paramount the Title to the whole Rent shall remain Vide Leases Atturnment Remitter Bastard IF the Bastard enters into the Mannor and recovers in a Cessavit being the Mulier dis-approves the Estate of the Bastard he shall not take benefit of the Recovery If the Bastard dies seis'd the Mulier within age some think the Right is gone no more than if the Mulier had been born after the Descent So if the Bastard enters and the Mulier dies his Wife enseint and before the birth the Bastard dies and his Issue enters the Mulier is not bound by that and others think the contrary If a Bastard dies seised of Land his Wife enseint and before the birth the Mulier enters the Issue of the Bastard when he is born shall be bound for by a dying seised onely without a discent to the Issue his right of Entry was not taken away For if a Disseisor dies without Heir the Disseisee may enter upon the Lord by Escheat because there was no Heir to make it a Descent So in this case If a Bastard Puisne enters into Land in Borough English and dies seised and his Issue enters the Mulier is bound But such a Bastard Puisne is intended where the first Wife by whom he had the Mulier dies and then he hath a Bastard and marries the same Woman For if a man marries the woman by whom he hath a Bastard and she dies and after he hath a Mulier by another Wife though they be not by the same Mother yet such a Bastard gaines the Inheritance to his Issue if he dies without Interruption By the same reason the Bastard Puisne If the Mulier ou ts the Bastard who recovers against him in an Assise where the Mulier pleads Ne unques seise c. and after dies that descent shall take away the Right of the Mulier for the possession which he had is defeated by the Recovery For he shall have an Assise of Mortdancester or Scire faâ—ias where such a Possession is removed But otherwise it had been if he had entered If a Bastard dies living the Father and leaves Issue his Issue shall be in the same case against the Mulier as the Father should have been if he dies seised without Interruption If the Heir of the Bastard be in by descent he shall gain the Land from the collaterall Heir or against the Lord by Escheat as well as against the Mulier Puisne If the Issue of the Bastard be the first that enters and dies seised his Issue shall retain against the Mulier If the Bastard dies and his Issue endowes the Wife of the Bastard Quaere if the Right of the Mulier be bound But if the Wife of a common Ancestor be endow'd the dissent of the Reversion shall be to the Mulier Quaere If a Remainder be directed to the Right Heirs of A. and he dies and the Remainder vests and after the right Heir is proved a Bastard or is made so by Act of Parliament yet he shall hold the Land for ever because he takes by purchase If there be Bastard eigne mulier puisne the Father makes a Lease for yeares and dies the yeares expire the Bastard enters and dies seised his Issue enters the Right of the Mulier is not bound for the possession of the Lessee for years was the possession of the Mulier and being that he was once seised so that he may have an Assise or Mortdancester his Right shall not be taken away If there be Bastard Eigne Mulier Puisne and the Father dies seised of a Mannor the Bastard
and in common and not jointly But if the Discontinuee enfeoffs the Issue in tail within age and another and makes Livery to the Infant in the name of both though the Infant be remitted for a moity yet the other moity vests in the other and they are Tenants in common for their Capacities are not several but they take severally by the operation of the Law Cessavit IF the Tenant ceases for twenty years a Cessavit cannot be maintained but for the two last years before the Writ And therefore if the Tenant ceases for two years and marries and the Lord recovers in a Cessavit and the Tenant dies the Wife shall be endowed against the Lord for the Cessavit cannot be maintained for the Cesser before the coverture and so the Title of Action shall not have Relation c. but is grounded upon the Cesser two yeares before the Writ purchased and part of it was during the Coverture and then the Cesser of the Husband during the Coverture shall not prejudice the Wife of her Dower But Quaere if the case be not â—alsly put for it should rather have been that the Baron ceases one year before the Coverture and another year after and then the Cessavit is brought Cessante Causa c. THe Seignoress seises the Body and Land of the Tenant and after marries the Villain ingross of the heir and they commit wast the Heir brings an Action of Wast 't is cleer that his body is out of Ward and being that the Land is in Ward because an Infant cannot perform Knight Service and so the cause is executory and in consideration that the Signory remains and now the Signory during the Coverture by the intermarriage with the Villain is determined in the Tenancy and so the Freehold and Inheritance of the Seignory is merged in the Tenancy by Act in Law notwithstanding that the possession of the Seignory is suspended by reason of the chattle in the Tenancy viz. the Wardship of the Land because that the Husband shall be Tenant by the Curtesy and may be granted over notwithstanding the suspension by reason of the Chattle in the Tenancy by the same reason it shall be a Release in Law to the Lord of the Villein by Act in Law and therefore the land shal be out of Ward for Cessante c. If the Lord of a Villain gives Land in ancient Demesne to the Villain and afterward the Lord reverses the Fine by disceit the Manumission is gone for the conveyance by the Fine which was the cause of the Manumission being vacated the Effect falls to the ground Common v. Apporcionment Condition A Having two Sons makes a Gift in tail to the Eldest the Remainder in see to the Youngest on condition that the Eldest shall not make a Feoffment with warranty to the intent to bar him in Remainder and if he does that then the yongest and his Heirs shall enter the Eldest makes a Feoffment with Warranty the Father dies and the Eldest dies without Issue the yongest may enter for the entry given to the youngest is void and then the Heirs of the Feoffor are to enter then the Father having cause to enter and he being dead the Condition is in suspence in the Eldest and revived by his death v. 41. E. 3. 21. and given to the youngest for the Condition was not extinguished by the Feoffment and the Warranty does not bind Titles of Entry But if the Feofment had been after the death of the Father then the Condition had been extinct If I am Lessee for the life of C. and grant my estate to D. upon Condition that if D. dies living C. that it shall be lawful for me to re-enter Quaere if this Condition be sufficient for me to enter upon an Occupant The Mesne grants the Mesnalty upon Condition that if the Grantee pays c by such a day that then he shall have Fee before the day the Grantor to whom the money was to be paid is attainted yet the Grantee may perform the Condition and enjoy the Fee A Lease for life is made upon Condition that if the Lessor grants the Reversion the Lessee shall have it in Fee The Lessor grants the Reversion by Fine to one for life the Grantee shall have it for life and the Lessee shall have it after the death of the Grantee and not before But if the Condition had been that if the Lessee pays twenty pounds c. there he shall devest the possession out of the Grantee Note the diversity If the Husband having a Lease for twenty yeares in right of his Wife grants two years upon Condition that the Grantee shall not grant over his term and if he does that he his Executors and Assigns may re-enter the Husband dies the Lessee grants over his term the Executors of the Husband cannot enter for it is a Condition annext to the Reversion and if they do enter they defeat the Wives Reversion The Eldest Son cannot enter where the Reversion descends to the youngest Son by Borough English or speciall tail Nor the Heir on the part of the Father where the Land goes to the Heir on the part of the Mother nor the Executor of one Jointenant where the Testator made a Lease upon such a Condition and died for then he should devest the Reversion out of the other which cannot be And in the principall case the Wife cannot enter for she is not privy to the Condition neither doth she claim under the Estate of the Husband As if one Jointenant grants his part for yeares upon such a Condition the Survivor cannot take advantage of it But if the Husband had granted over all the years upon such a Condition or the Father had made Feofment of the Land in Borough English he should enter for he claims by the Father Some think the Condition is extinct as if a man makes a Lease for years upon Condition ut supra and dies having a Son and a Daughter by one Venter and a Son by another the Eldest takes the Rent and dies now the Sister shall have the Reversion and the Condition is gone for she is not Heir And a Rent is incident to a Reversion and passes by the Grant of it but so doth not a Condition A Feoffment is made upon Condition to re-infeoffe the Feoffee charges the Land the Grantee brings a Writ of Annuity and Recovers the Feoffor enters 44 E. 3. 9. If A. be bound to pay ten pound to B. and he releases ten pound which he ought him yet this is no performance for there ought to be a payment in Fact And therefore if one be bound to Release a Rent Charge which he hath out of the Mannor of D. and he purchases an Acre now the Rent is extinct and yet the Condition is not performed But If I am bound to enfranchise my Villaine and I bring an Action against him the Condition is performed So if I am bound to discharge an Obligation
in which I am bound to A. if I purchase the Mannor to which A. is a Villein regardant the Condition is discharged for the word Discharge refers to all manner of Discharges If I am Infeoffed upon Condition that I shall not Alien to A. and I suffer him to recover it Feintly or if I cease so that he being my Lord recovers in a Cessavit or if I acknowledge my self to be his Villein or if I make a Feoffment with Warranty so that that Acre is recovered by him in Value yet the Condition is not broke for it extends only to Alienations in Fact If I make a Gift in tail upon Condition that the Donee shall not suffer a Feint Recovery if it be not to the benefit of his Issue and after in a Feint Writ he vouches and a Recovery is had against him and he recovers in Value and hath Execution and that is to the just value onely the Condition is not broke But if the Donor had been voucht it is cleer be should not have entred for he shall not say that the Recovery was Feint when he was voucht and made a party to the breach of the Condition and he cannot enter into Warranty saving the Condition which is not broke for it is but a possibility Land is given in tail to the Heires Males of the body of the Donee upon condition if he dies without Heirs Females of his body that the Donor shall re-enter the Condition is void for he cannot have Heirs Females so long as he hath Issue Male. A Lease for years is made upon condition that the Lessee shall not Alien without the consent of the Lessor he gives him leave to grant over his Estate upon Condition and so he does and enters for the Condition broke he may after grant it over without his consent for the Condition is performed 32 H. 6. 10. a. A Rent charge is granted upon Condition the Grantor makes a Feofment of the Land the Condition is broke the Rent is arrear if the condition be extinguisht by the Feofment being the Feoffor cannot have it in the same manner as he might when the Grant was made But if the Grant had been upon Condition which if not performed to cease the Feoffee shall have Benefit of it If a Feoffment be made upon Condition that the Feoffee shall make a gift in Frankmarriage with the Cosen of the Feoffor this seems to be a void Condition Quaere if he must not make an estate for life So if it had been to make such a Gift to a Religious person If a Feoffment be made upon Condition the Feoffee makes a Lease for life and dies and the Reversion dessends to the Feoffor Quaere if the Condition be extinct The Mortgagee enfeoffs the Heir of the Mortgagor in Mortgage also to be first paid after the first day the first Mortgager dies the Heir tenders the money to the first Mortgagee at the day and he refuses and he tenders the money to the Heir c. and he refuses Some think the Son may perform the Condition for it is not suspended being a Collateral Condition Vide 21 E. 4. the case of a Corody and the payment ought to be made to the Mortgagee though he hath made a Feoffment of the Land to the Executors and not to the Heir as it shall be and 17 E. 3. 2. is not Law And upon the first refusall the heir is not remitted for he shall not be remitted upon a Title If the Tenant atturns upon Condition which is broke by the Grantee yet the Reversion is not devested for the Assent cannot be conditional for he doth not claim the Reversion from him that atturns neither can it be made conditionall by the Act of a Stranger to the grant for if Tenant in tail makes a Lease for years rendring a Rent and dies and the Issue accepts the Rent upon Condition that it shall not prejudice his Entry to avoid the Lease yet he shall avoid the Lease for the Assent is a thing executed which wil not suffer any Condition performable But if the Condition be precedent to the Assent the Condition is good But a Release of Right may be upon Condition as a Release of the Seignory to the Tenant upon condition So of a Release upon condition from one Jointenant to his Companion for there the thing vested in his person is devested unto which a Condition may be annext But otherwise of an Assent And if the Patron assent to the charge of the person upon Condition that is good because the Assent is an Interest in Law If a Gift in tail be made upon Condition the Donee shall make a Feofment which is done accordingly yet the Issue shall have a Formedon for if the Condition be not performed the Donor could not have entered and when it is not performed yet the Estate of the Issue shall not be defeated If a Lease for life be made with such a Condition yet the Lessor may enter for the forfeiture if the Feofment be made So if the Lease had been made upon Condition that he make a Feoffment all is one If an Infant be infeoffed upon Condition to enfeoffe another which is done accordingly yet the Infant may enter for he hath performed the Condition If two are infeoffed upon Condition to infeoffe A. if one does infeoffe him of the one Moity and the other of the other Moity the Condition is performed for the Intent is fulfilled If a Lease for life be made with a Condition of Accruer if before the day the Lessor be attainted yet upon the performance of the Condition the estate enlargeth If a man hath Land by descent on the part of his mother and makes a Feoffment upon Condition to be performed on his part or the Heirs on the part of his Father and the Father dies so that the Land descends to him the Condition is extinct although he dies without Issue for notwithstanding he had the Land from his Mother yet the Condition goes to the Heirs on the part of his Father being a new thing As if a Feoffment be made upon Condition of Land in Borough English the eldest Son shall not enter for the Condition broken as the Heir male must do where a Condition is descended upon the Heir Female But on the other side if the Son makes a Feoffment to his Mother of Land descended to him from his Father and after the Mother dies and the Son dies without Issue the Heir on the part of his Father must perform the Condition and the Heir on the part of his Mother shall have the Land in the mean time and if the Condition had been broke in the life of the Mother it had been all one and the Heir on the part of the Father should have entred for the Son is not remitted by the Descent The case was after the entry the Son granted a Rent Charge and died without Issue if the Heir on the part of the Father
the other for life and A. grants both over viz. the one in Fee and the other for his own life If the second Feoffee shall have Election If A. had committed wast in both or had made a Feoffment of both the Lessor might have entred into which he had pleased If I give two Acres the one in Fee the other for life and the Donee dies without Heir Quaere if the Lord shall have Election If a Lease be made of two Acres the Remainder of one to A. and of the other to B. and makes no certain description of either He who first enters after the death of Tenant for life shall have the Election If a Lease be made of two Acres Habendum the one in Fee and the other for life reserving a Rent Quaere how the Lord shall avow But his Executor hath no Remedy by the statute of 31 H. 8. If A. grants to another one of his horses the Grantee dies before his Election his Executor shall choose but yet there was no property in the Grantee before Election If two Acres are granted the one in tail and the other in Fee the Heir of the Donee shall make his Election If twenty shillings or a Robe is yearly granted at the Feast of Easter at the day or before the day the Grantee hath Election If it had been by Obligation the Obligor shall have the Election after the day But if one grants to another twenty loads of wood or twenty Oaks yearly at the day or after the Election is in the Grantee for it lies in Prender so that there is a a Difference betwixt a thing in Payment and in Prender 13 E. 4. 4. If a Lease for life be made reserving a Rent or a Robe at the day it is in Election of the Lessee but after in the Lessors A Reversion is granted to one for life and before Atturnment it is granted to him in Fee the Grantee may choose his Estate If an Acre is given Habendum in Fee or in tail the Donee shall choose If one be bound or Covenants to infeoffe B. of the Mannor of D. or S. the Obligor c. hath the Election for he is the first Agent But if I give my black horse or white Horse there the Donee hath the Election for there he is the first Agent But otherwise if the words had been that I should deliver also If I infeoffe A. and B. and warrant the Land to the one or the other there is no Election given to either and therefore void But if one be bound to me to pay to A. or B. there the Obligor hath the Election for he is the first Agent but in the other case it ought first to be demanded A. gives two Acres Habend the one for life the other in Fee reserving a Rent or a Robe and does not distinguish which he shall have for life and which in Fee B. makes a Feoffment of both the Rent is behind A. distrains in one only and makes an Avowry for the Robe in that Acre Quere bien If a Rent be issuing out of two Acres the Tenant grants one to another the Grantee may choose in which he will distrain for all A. disseises B. of twenty Acres in C. B. brings a writ of Entry sur Disseisin in ten Acres and recovers and comes upon the Land and enters into one Acre in the name of all he recovered and thereof presently infeoffs D. who enters into the other nine Acres A. brings an Assize for those nine Acres and it is maintainable for by the entry of B. into one Acre in the name of all he recovered nothing vested in him but that Acre for it was a determination of his Election which nine Acres he would have for it was incertain and then nothing passed by the Feoffment but that one Acre for the Feoffee being a stranger shall not make Election which runs in Privity Emblements A Woman hath Title to have dower of three Acres and after the Heir sows one of the Acres and she hath that Acre assigned to her in dower Quaere if she shal have the Emblements for no folly can be imputed to the Heir for the possession was cast upon him by the Law and when he did sow the Land it was uncertain to him whether ever the wife would recover her dower neither could he guesse which Acre would be assigned her in dower and the Heir shall take advantage of this incertainty As if the Condition be performed by the Mortgagor yet the Mortgagee shall have the Emblements If a man devise that his Executors shall sell his Land and before the sale the Heir sows the Land and then the Executors sell it yet the Heir shall have the Emblements 36 H. 6. 36. If the Heir sows the Land and is disseised before severance and the Disseisor endows the wife of the Father Some think the Heir shall not have the Emblements for she is supposed to be in in the Post by the Disseisor Quaere Entry GRandfather Father and Son The Father disseiseth the Grandfather and dies the Son endows the Mother the Grandfather dies the Son may enter upon the Mother for he hath a new Right descended to him from the Grandfather for the Grandfather might have entred upon the Mother so shall his Heir But if there be Great Grandfather Grandfather Father and Son and the Grandfather disseises the Great Grandfather and the Father dies and the Son endows the wife of the Father and the Great Grandfather dies the Son shall not out the Tenant in Dower for the Great Grandfather could not enter by reason of the descent no more can his Heir If a disseisor makes a Lease for life the Remainder in Fee and the disseisee purchaseth the Remainder and grants it over he cannot enter upon the Lessee for life for then he should defear his own Grant A Feoffment is made upon Condition to re-infeoffe the Feoffee makes a Feoffment to his use If the Feoffor may enter without Request If A. makes a Feoffment reserving a Rent and if it be behind a Re-entry after he releaseth the Rent when he hath Title or Entry he cannot enter after or if he granted the Rent over after his Title of Entry The Eldest Son cannot enter where the Reversion is descended to the youngest by the Custom A Seignory is granted in tail the Tenant aliens in mortmain the Grantee dies within the year without Issue the donor shall enter as well as he in Remainder for there is a Privity of Estate If two Acres descend to A. and a stranger abates into one and A. enters into the other in the name of both that shall not gain the possession of the other But otherwise if he had entred into that Acre wherein the Abatement was in the name of both Tenant for life of a Seignory a Tenancy Escheats a stranger intrudes Tenant for life dies before Entry he in Reversion may enter as upon the Disseisor of his Tenant
if the Issue in tail recovers against the Discontinuee and after is attainted of Felony his Issue shall enter or sue Execution for he is privy in Estate Tenant in tail recovers in value by Voucher of the donor and is attainted of Felony his Issue shall not have Execution If the Son hath the Land of the Father and of another in Execution upon a Statute and the Land descend from the Father to the Son the whole Execution is discharged In Judgement for debt the party shall not have Execution but of that Land only which he had at the time of the Judgement and not at the time of the purchase of the Writ But in debt against the Heir if he aliens hanging the Writ it shall be liable to the Execution although the alienation was before the judgement for the Action was conceived against him in consideration of the land but in the first case it was in respect of the person The Conisor of a Statute is in Execution and his Land also the Conisee releases to him all debts the Execution is discharged by this Release for the debt was in being until it was levied of the profits but though the Execution be discharged by the party yet until it be discharged in fact if the Goaler had suffered him to go at large he could not have said but that he was in Execution Executors IF a Lease for years be made reserving a Rent upon Condition of Re-entry for not payment If the Executor breaks the Condition so that the Lessor re-enters it is a Devastavit in them otherwise if the Condition were performable on the part of the Lessor Br. Extinguishment 54. for every voluntary act of the Executor by which the Goods of the Testator are consumed without any benefit to the Testator is a Devastavit But if an Executor having such a term as Executor purchaseth the Reversion that is not a Devastavit for the Term as to Assetts is in being still If a man Mortgages his Term and dies and his Executors do not redeem it some think it is a Devastavit If they have Assetts in their hands wherewith to redeem it and the Term be better than the price of the Redemption so if an Executor sells a term under the value by which the Creditors lose their Debts this some think is a Devastavit But if a man be possest of a term and devises it to his Executors to be sold Meliori modo quo possunt for payment of his Debts they sell it under the value that is no Devastavit for it may be it was the best price they could get If Husband and Wife make a Lease of the Wives Land reserving a Rent the Husband distreins and avows and has a Return and dies the Cattle are discharged for the Executors cannot have them for they are but as a Pledge and being the Executors cannot pretend any Right to the duty they cannot detain the Pledge for the Wife is to have the Duty Vide 33 H. 6. 48. If a Rent Charge be granted in Fee the Grantee dies without Heir the Executors shall not have an Action of Debt for the Arrerages But if the Grantee had brought a writ of Annuity and Recovered then the Executors should have an Action of Debt for the arrerages for if the Inheritance of a Rent determins the Arrerages are extinct otherwise of an Annuity If a Grant be made of a Robe or twenty shillings and the Grantee dies before Election his Executors cannot demand the Arrears The Executors of a Grantee for years of a Rent Charge shall have Election either to have an Action of Debt or Annuity If a man be bound in twenty pound and his Executors have but ten pound an Action of Debt lies against the Heir for all 〈◊〉 if he chooseth the Executor he cannot sue the Heir for the Remnant If an Obligor in twenty pound hath Goods to the value of ten pounds only and makes the Obligee his Executor he shall retain that as parcell of the Duty and for the rest bring his Action against the Heir for it is by the act of the Law that the duty is apporcioned If A. by Deed gives the Mannor of D. with all the Woods to B. if Livery be not made the Executors shall have the Woods If there be two Wills and the Executor of the last refuseth before the Ordinary yet the first is revoked by the intent of the Testator If the Executor Releases a duty of the Testator this is so much an Administration so that he cannot after refuse but yet if he doth after avoid the Release he may refuse A Lease for life is made rendring a Rent at Mich and the Annunc the Land is sowen at Mich and the Lessee dies if the Executors shall have the Land untill the Corn be ripe if they ought to pay the Rent Some think the Lessor may have an Action upon the case for the Executors have the profits of the Land c. and no fault in the Lessor As if a gift in tail be made Reserving thirty Shillings and the Donee dies without Issue and the Wife is endowed she shall pay ten shilshillings and yet the Estate is determined but she claims under the Estate of the Husband A man makes a Lease for life reserving a Rent upon Condition that if the Rent be behind that the Lessor shall enter and retain untill he be satisfied of the Arrears he enters and dies his Executors shall not retain for the Arrears were not Chattles at the beginning and therefore they shall not â—etain the Land as a Gage as they shall do for the double value for that was a Chattle at the beginning But in the first case the Arrears are given to the Executors by the Statute of 32 H. 8. Yet being the Arrears were no Chattles at the first and so not due to them by their own nature therefore they shall not retain As in 15 E. 4. 10. In Rescous there it is said if the Defendant in a Replevin avows for a Rent due to him and his Wife and upon that he hath a Return and dies the Tenant shall have his Cattle back again without any Agreement because the Executors could not have the distresse being they could not have the Rent but the Wife was to have it If an Executor delivers a Legacy upon Condition it is no good delivery The Debtee and another are Executors to the Debtor the Debtee recovers against the other and after Administers with the other and then sues Execution by Scire facias If the other shall have an Audita Querela and in whose name it shall be sued or if the property shall be altered in the Recoveror or if Execution be discharged but some think that Execution cannot be stopt but the Recoveror shall have it to the use of the Testator Vide Condition Debt Extinguishment THe Tenant holds ten Acres by ten pence and makes a Feofment of one the Lord grants the Rent reserving the
granted to commence after the death of the Grantee the Heir shall take it by Descent A. makes a Feossment upon Condition and if it be broke that it shall be lawfull for him to reenter during his life he shall enter by expresse Reservation and after his death his Heir shall enter by the provision of the Law If an Encroachment of Services be made upon the Husband if the Wife be endowed she shall not be contributory but the Heir cannot avoid it A Seignory is granted for years the Rent being behind the Tenant dies the years expire if the Grantee shall have Debt against the Heir of the Tenant for the Rent due before and after the death of the Tenant Some say the Heir shall not be charged unless the Tenant had bound himself and his Heirs by express words and it shall not be esteemed the proper debt of the Heir If A. hath a Daughter who hath a Son a Remainder is limited to the right Heirs females of the body of A. the Son shall take the Remainder for he is a purchaser but he shall not have the land by descent which was given to A. and the Heirs females of his body 20 H. 6. 43. P. Newton Lessee for life the remainder to the right Heirs of A. who hath a Son who dies without issue the land shall descend to the Heirs on the part of the Father for the Son takes by purchase and as Heir to A. so that the Heir of A. must take it If land be given to a man and to his Heirs on the part of his Mother begotten and his Mother is dead and he dies without issue the Heir on the part of his Father shall take Quaere If a man makes a Gift in tail of Land on the part of his Mother reserving a Rent and dies without Issue the Heir on the part of the Mother shall have the Rent as incident to the Reversion If a man binds himself and his Heirs in twenty pounds and dies and his Executors have ten pounds onely an Action of Debt lies against the Heir for all for if the Creditor makes choice of the Executor he cannot have any remedy against the Heir for the rest If the Obligor makes the Obligee his Executor and leaves ten pound and the Debt was twenty he may detain that and bring an Action of Debt against the Heir for the rest for it is a apporcioned by the Act in Law If Land be given to one and the Heirs males of his body the Remainder to the Heirs Females of his body the Daughter of the Son shall not have the Land If Land be given to one and the Heirs males of his body and to the Heirs females of his body if he hath Issue male and female they shall take by Moities by descent severally If a Woman hath three Sons by severall Husbands and Land is given to her and to the Heirs of her body by the first and second Husband begotten the two Sons shall take severally by Moities and yet the Mother had an Estate A. having two Daughters one is attainted of Felony a Remainder is limited to the Heirs of A. the other shall take nothing If a Remainder be limited to the Heirs of B. who hath a Son who is attainted the Remainder is void and the Fee rests in Lessor Land is given to A. for life the Remainder to B. for life the Remainder to the Heirs of A. who dies B. enters and dies a Stranger abates the Heir of A. shall have a Writ of Right upon the possession of A. and if Land be given to C. and D. and to the Heirs of C. who dies and a Recovery is had against D. and he dies the Heir of C. shall have a Writ of Right of all the Land A. binds himself and his Heirs in twenty pounds and dies the Executors have Assetts the Obligee releaseth to the Heir all Actions of Debt the Executors pay the Assetts to other Creditors The Obligee may have an Action of Debt against the Heir for at the time of the Release he was not intitled to have an Action against him but if the Executors or the Heir had no Assetts at the time of the Release and after the Heir recovers Assetts the Release will bar him If A. makes a Feoffment of Land which he hath on the part of his Mother to the use of himself and his Heirs it shall be to the use of the Heirs on the part of his Father if he dies without Issue A Fem sole hath a Rent Seck and marries the Tenant of the Land grants to the Husband and his Heirs to distrain for the Rent the Husband and Wife die without Issue the distress is extinct for the Heirs of the Husband are onely privy to distrain A Condition does descend upon the Heir at Common Law Incertainty IF one inseoffs another of twenty Acres viz. of one to the use of A. and does not shew of which Acre A. takes nothing by the Feoffment for the possession cannot be executed for it was not certain which are passed to A. and A. cannot have Election for he is not privy If a Reversion be granted to one and after to another and the Tenant atturns to both neither of them shall take for the incertainty If Land be given to a Man and a Woman upon Condition that which of them first marries shall have in Fee and they intermarry neither of them shall have Fee If the Reversion be granted of black Acre or of white Acre if Atturnment be good Quaere for the incertainty A. gives two Acres to B. Habend the one for life the other in Fee without Deed rendring a Robe or a Rent and doth not shew which he shall have for life A. lets two Acres rendring a Rent on Condition to be performed by the Lessee that he shall have Fee in one Acre not shewing which and makes Livery of both Quaere Infant IF an Infant inseoffs two and at his full age releaseth to one it inures to both If an Infant be forejudged he is bound for ever but if he makes a Feoffment of a Mannor and the Feoffee is forejudged yet the Infant may enter into the Mannor and distrain for the Mesnalty the reason is because in the first case he was party to the Record and in the last case the Forejudger was against the Feoffee who had a deseasible Title A Recovery in Wast against an Infant will bind him but so it will not against his Grantee for he had a Title to defeat his Estate so in a Cessavit Conditions and Forfeitures that will bind a Fem Covert will bind an Infant If an Infant makes Livery within view he shall not have an Assize if the Feoffee enters for it is more than a Livery in Law If an Infant Disseisor makes a Feoffment and a Dissent is cast and the Disseisee releaseth to the Heir yet the Infant shall have a Dum fuit infra aetatem for he demands the
a Lease for life to the use of A. and his Heirs there A. bath a Fee determinable Land is given to a man and to two women Cousins of the Donor in Frank-marriage or to a man and to two women and to the Heirs of their bodies begotten or to two men to two women and to the Heirs of their bodies begotten in every of these cases each hath an Estate tail in one part and shall be Jointenants of the Freehold and in none of these cases there shall be a speciall tail So Land given to three one Moity to Baron Fem in Frankmarriage or in speciall tail and another Moity to the same man and another woman in speciall tail or when it is given to a man and to two women or two men and two women and the Heirs of their bodies this is as much as to say to the Heirs of all their bodies so that by the words the Heir that must inherit must be Heir of all their bodies which is impossible and being the words cannot be performed litterally the Law will make the best Construction and make them severall Estates tail in every of them and joint Freeholds Quod nota If Land be given to two to the one for life and to the other for years they are Tenants in Common But if a Gift be made to Baron Fem and to a third person that is to the third person for life to the Husband in tail and to the Wife for years if the third shall take the moity Quaere how the Husband and Wife shall take jointly or severally or how much severally If Tenant for life makes a Lease for life the Remainder to the Lessor and a Stranger some think the Stranger shall take all for he cannot give a Fee to him that had a Fee before as if one Jointenant infeoffs his Companion and a Stranger and if he had made a Lease Pur auter vye the Remainder ut supra there perhaps it would inure jointly but the limitation of the Fee here works by wrong and it is better for the Lessor that the Stranger takes all for then he may have his Action for all Livery Seisin IF a man makes livery of one Acre in the name of that and another which he hath for life in tail in right of his Wife or of his Parsonage or Bishoprick all pass But if it be in the name of an Acre which he hath for years or as Guardian or by reason of an Execution it is otherwise If a man makes a Feofment to A. and the Mayor and Commonalty of London and makes livery to one in the name of both none takes but him that took the livery If Tenant for life enfeoffs the Wife of the lessor and the lessor makes the livery yet it is a Forfeiture If a Feofment be made of a Mannor with an Advowson appendant if livery be not made the Advowson will not passe in grosse by the delivery of the Deed. A Disseisee cannot make a Letter of Atturney to deliver seisin for he hath not possession but if he delivers the letter of Atturney as an Escrowl to deliver seisin after his Entry it may be good If a man makes a lease for life and after makes a Feofment with a letter of Atturney c. and after Tenant for life dies if he may now make livery If a Feofment be made to A. and a Fem sole with a letter of Atturney to deliver seisin and before seisin they intermarry and then seisin is delivered they shall take by moities A. makes a Feofment of three Acres and after purchaseth another Acre and delivers seisin in that Acre in the name of the rest if the other shall passe Quaere If two Jointenants make a Feofment with a Letter of Atturny to deliver seisin and one makes a Feoffment and Livery in person it is a Countermand of the whole Livery for he that took the Livery hath no privity with the other as to that Livery made to the particular Tenant within view is not good to him in Remainder for it can benefit none but him that took it And if there be two particular Tenants with a Remainder over some that Livery made to one will not transfer the Remainder And if a Lease be made to A. and B. upon Condition that if A. doth such an Act that he shall have Fee and Livery is made to B. onely that will not enlarge the Estate of A. for he that took the Livery hath no privity with the other as to that Livery cannot enlarge an Estate if the determination of it be certain Market overt IF my Goods are stollen and I sell them in Market overt for a certain sum the Vendor hath no Remedy for his money for the Contract was void for if one buyes goods in Market overt knowing them to be stollen the property is not changed no more is it here for the Vendor knew they were stollen from himself If he which knows the Goods were stollen and another buys them in Market overt and the Stranger dies he shall have all the Goods and the property was not altered at the first but for a Moity If Goods be stolen and are sold in a Market overt and after he that sold them buys them again yet the first Owner cannot take them for the property was altered by the first sale Nusance IF one hath a Mill or House which falls down and in the mean time a Nusance is levied and then it is rebuilt he shall not have an Assizâ— of Nusance nor abate it for it was not made to the Nusance of his Frank Tenement for it was not then in being but the Nusance is elder than the Freehold Some think all is one if the Nusance had been levied in the time of the old house Obligation IF A. hath two Daughters and binds himself and his Heirs in an Obligation to the Eldest and dies seised of Lands and leaves Assetts to his Executors the Obligation is discharged for it cannot be apporcioned If two are bound jointly and one delivers the Deed at one time and the other at another yet it is a good joint Obligation If an Obligation be made to a Fem sole and another and the Fem marries and dies the other shall have the whole duty for a Chose in action does survive Occupant A Lease is made to one for the lives of A. and B. the Lessee makes a Lease for the life of A. only if the second Lessee dies living A. the Occupant shall have it If Land be given to two to one for the life of A. and to the other for the life of B. if one dies the other shall make himself a Title against an Occupant If a Lease be made upon Condition that if the Rent be behind the Lessor shall enter and retain and the Lessor enters and dies his Heir shall have it against an Occupant If I am Lessee for the life of C. and I grant my Estate to D.
have all as an Assize at Common Law is maintainable for a rent granted out of Ancient Demesue and other Lands 35 H. 6.4 p. Ashton If a rent be granted in Fee and the Grantee grants it for years the Grantee hath no remedy if it be denied for the Election to have an annuity is only given to the first Grantee and his Heirs and the Election runs in privity which fails in the second Grantee If a rent incident to a reversion be granted for years saving the reversion the Grantee hath no remedy for he shall not have an Action of debt though the Lease out of which the rent issued was for years for there wants privity If a Lease be made to two Habendum the one Acre in Fee and the other for life reserving a rent Quaere how the Lessor shall avow but his Executors are not aided by the Statute of 31 H. 8. If a Lease be made of two Acres reserving a rent for years and then the reversion of one Acre is granted the rent shall be apporcioned for as the contract is made in respect of the reversion so it shall be severed in respect of the reversion A rent charge is granted in tail to the Vse of A. and his Heirs the rent is behind the Donee dies without Issue A. brings an Action of Debt for the Arrerages If the Parson and Ordinary grant a rent charge out of the Glebe to the Patron the Successor shall avoid it for the assent of the Patron ought to be expresse and of the Ordinary also where the Successor must be bound and it is but implied here but the best way had been to have granted it to A. and he to have granted it to the Patron and in the first case if the Patron grants it over that is no full assent but the Successor shall avoid it If Tenant in tail grants a Rent Charge in Fee and makes a Lease for forty years and dies and the Issue accepts the Rent the Grantee shall have the Rent during the Lease and the life of the Issue although the Lessee Surrenders Quaere for the Reversion is discharged If Tenant in tail grants a Rent in Fee and dies and the Issue having a Wife dies before Entry his Wife is endowed she shall hold it discharged If the Father disseises the Son and grants a rent Charge and the Son endows his Wife Ex Assensu Patris in the same Land the Father dies the Son dies the Wife enters she shall hold it charged for she claims from the possession charged And if Tenant in tail grants a rent charge the Abator shall hold it charged If the Father disseises the Son and grants a rent charge in Fee and makes a Lease for years and the Son confirms the Lease and the Father dies the rent is gone So if a man grants a rent in Fee and makes a Lease for years and grants the reversion to the King or to the Grantee the rent is gone If a Lease be made of two Acres in one County rendring a rent and Livery is made in both severally yet it is but one rent though one Acre passed by the Livery before the other Lessee for twenty years makes a Lease over and makes a Lease of other Land in which he hath an Estate in Fee simple for twenty years reserving a Rent without Deed the whole Rent doth issue out of the Lands in which he hath an Estate in Fee for being he hath granted all his Right over in the other Land it cannot be a reservation out of that If a mangrants a Rent for life and after by another Deed grants that it shall be lawfull for the Grantee and his Heirs to distrain for the same Rent that shall be intended a Rent of the same value for that Rent is determined by the death of the Grantee As if the King grants to the Mayor and Commonalty of D. the same Liberties which the Mayor and Commonalty of London have that shall be construed Liberties of the same nature If a man grants to me that whereas he hath made a Lease for forty years to A. that I shall present to the Advowson which the Lessor hath during the same term If A. surrenders the Mannor yet I shall present for when my Grant was during the same term that is to be understood during the like time If the Patron and Ordinary give license to the Parson to grant a Rent in Fee if he does it that will bind the Successor according to the opinion of 7 H. 4. 18. But if a Confirmation had been made to the Grantee before the Grant that had been void and the Diversity is this for in the first case there was nothing requisite but an Assent which may be before the Act is done and therefore it is said that if a Bishop makes a Gift in tail by Deed and the Dean and Chapter confirm the Deed Et omnia quae in eo sunt according to the usuall Confirmation in those cases and after Livery is made that was holden by all the Justices to be a void Confirmation for the Assent was not but to the Deed but the Confirmation ought to be after the Estate made and so a Diversity If a Rent Seck be granted to A. for life and after it is granted that he and his Heirs shall distrain for it during the life of the Grantee it is still a Rent Seck though he may distrain for it but the Heir shall distrain for it and take it by descent A. makes a Lease for life reserving a Rent in Fee and then grants the Reversion with Atturnment and reserves the Rent in Fee and dies the Rent is gone for it is reserved out of an Estate for life only So if Tenant in tail of a Rent grants it in Fee that is no discontinuance for it is granted but during the life of the Grantor If A. makes a Lease for life reserving a Rent the remainder for life the Lessor grants the reversion to him in Remainder the first Tenant for life atturns he shall not have the Rent for the Fee simple drowns the remainder to some purposes but as to this it is in Esse A. grants a Rent Charge in tail and enfeoffs the Grantee of the Land who gives in tail reserving to him so many services as he pays over to the Lord Paramount and dies the Issue shall not have a Formedon of the Rent being he hath the Reversion for the Land is discharged at the time of the Gift in tail 31 E. 3. Scire fac Lessee for twenty years makes a Lease for ten years who purchaseth the Reversion with Atturnment of the Lessee the Executor of the Lessee for ten years shall not have the residue of the term but the Heir but he shall pay the first rent reserved to the Lessee for twenty years in nature of a Rent Charge granted by him for the Term is in Esse as to that purpose but it seems the first Lessee may distrain
shall have two Hawks Lord Mesne and Tenant the Tenant makes a Gift in tail the remainder in Fee the remainder Escheats upon whom the Lord shall avow and of whom the Donee shall hold is the question So if the Tenant makes a Gift in tail to the Mesne the remainder in Fee or makes a Gift in tail to a stranger the remainder in Fee to the Mesne how the Tenure shall be now is the Question But in the first case if the Mesne had released to him in remainder or to the Donee in tail it seems the Donee ought to avow upon the Donee in tail and that the Donee shall hold immediately of the Lord Paramount after the release Quaere if there be any difference The Tenant who holds by Homage and ten shillings Rent makes a Lease for life the remainder in tail not speaking of any reservation the Tenant for life although he doth not hold by Homage yet he shall hold by Fcalty and ten shillings Rent being both the Estates now are but one But a Gift had been made in tail the remainder for life after the Estate tail determined the Tenant for life shall not hold by the same services as the Donee held Causa patet If there be two Jointenants and to the Heirs of one of them who hold ut supra make a Gift in tail the Donee shall hold of them both by the like Services and yet the Freehold is no cause of the tenure Quaere for some say that he that hath the Fee shall have the whole Tenure for the Inheritance passeth only from him If Tenant for life and he in reversion make a Gift in tail Quaere how he shall hold If a Lease be made for life the remainder in Frankmarriage some think the Tenant for life shall hold by Fealty only untill the fourth degree be past If there be Lord and Tenant by Fealty and twenty shillings and the Tenant gives in Frankmarriage to hold of him and his Heirs by Fealty only until the fourth degree be past and after by twenty shillings and Chivalry in that case after the fourth degree be past he shall not have the twenty shillings nor the Chivalry for though he reserved but Fealty until the fourth degree be past yet it is an intire reservation presently and the services are in him although they be not to be performed untill the fourth degree be past and Seisin of the Fealty shall be a Seisin of the rest and therefore the reservation being entire that is the reason that it is void for all because all cannot be reserved upon the Gift in Frankmarriage Testament IF a man makes severall Wills of severall dates and dies and the Executor of the last Will refuseth before the Ordinary yet the first Will is clearly defeated and yet the refusal is peremptory but it is not so if there be two Executors and one refuseth before the Ordinary If a Fem sole makes her Will and then marries and he dies Quaere if the Will be revoked Villain IF the Lord deviseth Land to his Villain he shall be enfranchised against the Heir and yet he was a Villain to the Heir at the same time the devise took effect but being the Lord had a power to enfranchise him he shall be enfranchised As if one delivers an Escrowl of Enfranchisement to be delivered seven years after the Lord dies and then the Deed is delivered to the Villain it is a good enfranchisement If a man makes a Lease for life the remainder to the right Heirs of A. who hath Issue a Son who is a Villain by Confession to the Feoffor and the Feoffor dies and A. dies and the Tenant for life dies the Son of A. enters he shall be enfranchized and yet he was not enfranchized in the life of the Feoffor but now he shall be said in by him So if a man devise that his Executors shall sell his Land and they sell it to the Villain of the Testator he shall be enfranchised against the Heir for he comes in in the Per by the Testator If a Fem be endowed of a Villain in grosse and the Tenant in Dower and the Heir enter together into Land purchased by the Villain Quaere in whom the Freehold shall be So if he had been a Villain to an Abbe and a Secular man for his body is intire to every of them And if the Grantee for life of a Villain and he in reversion of a Villain enter together into Land of the Villain it seems that Tenant for life shall gain all but some think that he in reversion shall disable him in an Action If Executors have a Villain that the Testator had and enter into Land purchased by the Villain it shall be Assetts notwithstanding they have a Fee as Land in Fee descended to the Heir shall be assetts to a Chattle viz. a Debt to a Stranger And the reason why they shall have it to the use of the Testator is because they had it in auter droit and so it shall be a Perquisite unto the same right So if a Guardian in Socage of a Mannor to which a Villain is regardant enters into Land purchased by the Villain it shall be to the use of the Infant So if a Bishop enters into Land purchased by a Villain which he hath in right of his Church the Land shall be to the same use so is 42 E. 3. 24. But if one hath a Villain for years in his own right he shall have a Fee in the Land purchased by the Villain It was said if a man be intitled to be Tenant by the Curtesie of a Villain and enters into Land purchased by him he shall be seised of the Land to his own use and not in right of his Wife because he hath the Villain in his own right but Quaere if he were not intitled to be Tenant by Curtesie If the Lord of a Villain gives Land by Fine to the Villain which is Land of Ancient Demesne the Lord reverseth the Fine by Disceit some think the Manumission is destroyed for it doth not appear upon Record otherwise if he enfeoffs his Villain upon Condition and enters for the breach And if a Villain acknowledges an Action brought by Baron Fem that is no Enfranchisement against the Fem for it is but an Enfranchisement in Law upon which she is not examined The Tenant enfeoffs the Villain of the Lord and a Stranger upon Collusion the matter is how the Lord may obtain the Ward without Dammages For if he brings a Writ of Ward the Villain shall be manumitted and if he enters upon the Villain he avoids the Collusion for ever and shall retain the Land but then he shall be Tenant in Common with the other and so he can have no Writ of Ward for the other Moity If Tenant in tail of a Mannor to which a Villain is regardant makes a Lease for one and twenty years to the Villain rendring a Rent according to the statute and
of Land in Borough English which descended to the youngest Son and after the Tenancy escheats the Eldest being impleaded vouches himself to save the Intail but if the Land of the youngest shall be lyable is the question Lessee for life the remainder to the right Heirs of A. who is dead having a Daughter his Wife enseint with a Son the Lessor warrants the Land in forma praedicta the Son is born the Daughter cannot vouch by reason of the Warranty for the Warranty is a thing executory which cannot be deraigned but by the right Heirs of A. For if a Feoffment be made to the Son with Warranty and he dies without Issue and the Land comes from the Unkle to the Father he cannot take advantage of this Warranty as Heir to his Son so if Possessio Fratris makes the Sister Heir she shall not vouch 35 H. 6. 34. Danby but he shall be voucht as Heir for the possession so shall the Father so shall the youngest Son in Borough English but shall not vouch Vide Fitzh Voucher 94. 35 H. 6. 33. If Land be given to two brothers in Fee with Warranty to the eldest the eldest dies having Issue and the youngest dies without Issue the Issue of the Eldest being his Heir and he enters he shall not take advantage of this Warranty by Voucher or Rebutter for the Warranty was void having regard to the Survivor because his Title hath relation before the Warranty If the Eldest Son is voucht as Heir to the Warranty and the youngest as Heir in Borough English and the Eldest voucheth over if the Eldest or the youngest shall have the Recompence in value It would be unreasonable that the eldest should have it for he lost nothing for by the law the tenant cannot sue Execution against the Vouchee untill the demandant hath sued execution against him and in this Case execution was never sued against the Eldest for he hath no land and the youngest hath not the warranty by descent though he hath the land and so he cannot vouch and therefore it is hard he should be bard by it Wast LAnd is given to Baron Fem and to a third person the third person releaseth the Fem all his right and the Baron Fem makes a Lease of the whole for yeares and brings a writ of Wast against the Lessee The Lessee is not punishable in Wast if a house falls that was ruinous at the time of the demise and he may cut Trees to repair it so he may do if the Lessor covenants to repair it vid. 12 H. 8. 1. If a house with land is let upon which is a Wood without impeachment of wast for the house yet if the house becomes ruinous he may cut timber for the reparation and a Lessee may take timber for fier-boot if there be no other wood quod vid. 21. H. 6. 47. If a man makes a lease upon condition or that the Lessee is bound in an obligation not to do wast and that his estate shall cease If a Stranger commits Wast that is no forfeiture of the Lease for the condition extends only to the person of the Lessee vid. 3. H. 6. 17. But if a stranger commits Wast upon the Lessee for years or Guardian in Chivalry they shal render treble and shall lose the ward but Guardian in Socage shall not be punisht for wast of a stranger for the heir himself shall have an action If a Lease is made for life the Lessor dies having two Sons by divers venters the eldest grants to the Lessee that he shall be dispunisht of wast yet that shall not bind the youngest for he does not claim as heir to his brother but as an heir to his father who was last actually seised Fem tenant for life the remainder for years to I. S. who marries with the Fem and Commits wast quaere if the land be lost If tenant for life makes a lease for years and after enters upon the termor and commits wast and the Lessor recovers the Lessee shall lose his term A man shall not be punished for comming on the land to see if wast be committed The heir makes a Lease for years wast is committeed the wife recovers in Dower the heir shall have an action of wast in the tenuit A man makes a lease for twenty yeares without impeachment of Wast and the Lessor confirmes for forty years the Lessee shall be dispunisht for twenty years A man makes a lease rendring rent on condition that if the rent be behind that the Lessor shall reenter and retain until he be satisfied the rent out of the profits the Lessor doth enter and a stranger commits wast and then the Lessor is satisfied of the rent if the wast be punishable If one doth devise his lands which he hath for years and dies the Executors commits wast and then agree to the devise an action of wast lies against them notwithstanding the relation So if Lessee for years grants his term upon condition and the grantee commits wast and the Lessee for years enter for the condition broken yet wast lies against the grantee Where a man hath election to take two estates his committing of wast will be a determination of his election If there be Lessee for life the remainder for life and the Lessor grants the reversion to him in remainder quaere if he shall have an action of wast If Tenant for life makes a lease for years and enters and commits wast the tenant for yeares leases his term wast by the assignee of an infant or fem Covert shall take away the special right of Infancy Coverture or condition but otherwise if it had it been made by themselves Warranty GRandfather Father and Son the Grandfather makes a lease of an Acre for life and dies the Father being tenant in taile discontinues it in Fee with warranty and dies the tenant for life dies the Son enters into the Acre after his death and brings a Formedon the warranty of the Father with this Assets seemes no barr The discontinuee of a tenant in tail makes a Feofment on condition and a warranty collateral is made to the Feoffee of the discontinuee the discontinuee enters for the condition bro ken the issue hath no remedy against him If a Collaterall Warranty descends within a year upon him that hath Title to enter for Mortmain he cannot enter after for if he himself had re leased he could not have entred and the Warranty will bind him as well as his Release but Quaere if a collaterall Warranty extends to a Title of Entry If a man devises Land with Warranty that is void because the Father himself was not bound A Warranty made to a Disseisor is not destroyed by the Release of the Disseisee A Collateral Warranty shall not bar Execution of a Recovery in value for it is but a Title to which a Warranty does not exâ—end no more than to bar a Title of Entry for consent to a Ravisher or