to her it is commonly taken for the third part which she hath of her husbands lands c. After his decease lib. rub c. 70. Bract. l. 2. s 92. To the consummation of this dower three things are necessary viz. Marriage seisin and the death of her husband s 31. a. Secundum consuetudinem regni mulieres viduae c. Debent esse quietae de tallagiis c. doti ejus parcatur quia praemium pudoris est Ockam f. 40. Where lands or tenements descend to the husband before entry he hath but a seison in law and yet the wife shal be endowed for it lieth not in the power of the wife to bring to be an actuall seison as the husband may doe of his wifes land when he is Tenant by the Curtesie F. N. B. 149. Grandfather Father and Son the Grandfather and father die c. In this Case dos de dote peti non debit if lands descend to the Father otherwise is it in a purchase if the Grandfather infeoffe the Father c. Vide lib. 5. E 3. t. Douch 249. Paris c. Non debent mulieribus assignari in dotem castra quae fuerunt virorum suorum quae de guerra existunt vel etiam homagia servitia aliquorum de guerra existentia Fo. 31. b. Pat. 1. E. 1. Part. 1. m. 17. Tenant in Fee Taile generall maketh a feoffment in Fee and takes back an estate to him and to his wife and to the heirs of their two bodies and they have issue and the wife dieth the husband taketh another wife and dieth the wife shall not be endowed for during the Coverture he was seised of an estate Tail special and yet the issue which the second wife may have by possibility may inherit Vide lib. 41. E. 3 30. Dier 41. Albeit of many inheritances that be entire whereof no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet she shall be endowed thereof in a special and certain manner As of the third part of a piscary tertium piscem vel jactum retis tertium c. Fo. 32. a. 17. E. Dow. 104. A woman shall not be endowed of a common sans nomber en grosse nor of an annuity c. Nor of Rents c. If the freeholds of the Rents were suspended before the coverture But a woman shall be endowed of Tithes of the third part of profits of Courts Fines Heriots c. De nullo quod est sua natura indivisibile secationem sive divisionem non patitur nullam partem habebit sed satisfaciat ei ad viâ—lentiam Brac. 97. Brit. 146. If the heire improve the value of the Land by building c. And on the other side if the value be impaired in the time of the heire she shall be endowed according to the value at the time of the assignment and not according to the value as it was in the time of her Husband 30. E. 1. Vouch. 298. It is not necessary that seisin should continue during the coverture for albeit the husband alieneth the Lands c. or extinguisheth the Rents c. Yet the woman shall be endowed But it is necessary that the marriage continue for if that be dissolved the Dower ceaseth Vbi nullum matrimonium ibi nulla dos but this is to be understood when the husband and wife are divorced à vinculo matrimonii as in case of precontract consanguinity affinity c. And not à mensa thoro onely as for Adultery In case of elopement shee shall lose her Dower but shee is not barred of her appeal Sponte virum mulier fugiens adultera facta dote sua careat nisi sponso sponte retracta Fol 32. b. Mirr ca. 5. Sec. 5. li. Intract 224. If a man seised of Lands in Fee took a wife and infeoffed eight persons Writ of Dower was brought against these eight persons and two confesse the action and the other six plead in Barre and descend to issue the demandant shal have judgment to receive the third part of two parts of the land in eight parts to be divided and after the issue being found for the demandant against the six the demandant shal have judgement to recover against them the third part of six parts of the same land in eight parts to be divided and so in some cases where the husband was sole seised the wife shall not be endowed in severalty by metes and bounds M. 2. and 3. Eliz. Dier 187. b. Nota. The endowment by metes and bounds according to the common right is more beneficiall to the wife then to be endowed against common right for there shee shall hold the land charged in respect of a charge made after her title of Dower It is necessary for the wife after the decease of her husband as soon as she can to demand Dower before good testimony for otherwise she may by her own default lose the value after the decease of her husband and her dammages for detaining of her dower Vide lib. Et Dotes suas habere non possunt sine placito The mean values and dammages are to be recovered against the Tenant in a Writ of Dower M. 8. and 9. Eliz. Rot. 904. conj Banco Vid. c. If the wise be past the age of 9 years at time of the the death of her husband albeit he were but 4 years old she shall be endowed quia minor non potest dotem promereri neque virum sustinere nec obstabit mulieri petenti minor aetas viri So that albeit concensus non concubitus facit matrimonium and that a woman cannot consent before twelve nor a man before fourteen Yet this inchoate or imperfect marriage from the which either of the parties at the age of consent may disagree after the death of the husband shal give Dower to the wife Fo. 33. a. Est uxor de facto de jure Fol. 33. b. Vid. c. Onely she that is a wise de jure in favorem vitae shall have an Appeale c. But a wife de facto shall have Dower if divorce be not had c. 50. E. 3. 15 10. E. 3. 35. Sect. 37. Rationabilis dos est cujuslibet mulieris de quocunque tenemento tertia pars omnium tium c. quae vir suus tenuit in dominico suo ut de feodo c.. By the custome of Gavelkind the wife shall be endowed of the moity so long as she keep her self sole and without child which she cannot wave and take her thirds for her life for consuetudo tollit communem legem Stat. de consuet Canciae c. And as customs may inlarge so it may abridge and restrain it to a fourth part c. Senentia signifieth widowhood fo â—3 b. in fine marg Sect. 39. Affidare est fidem dare sponsalia dicuntur futurarum nuptiarum repromissio conventio But this Dower ad ostium ecclesiae is ever after marriage
solemnized for that before marriage the woman is not intituled to have dower certainty is the mother of quiet and repose Fol. 34. b. The Law hath provided quod vidua post mortem mariti sui non det aliquid pro dote sua maneat in Capitali messuagio mariti sui per 40. dies post obitum mariti sui infra quos dies assignetur ei dos sua nisi prius ei assignata fuerit c. habeat rationabile estoverium suum interim in Communi yet because there was no penalty c. inflicted the Tenant of the land may drive her to sue for her Dower Mag. Chart. ca. 7. If the heir c. put her out within the 40 days c. She may have her Writ de quarentina habenda A jointure made in satisfaction of Dower is now the furest way c. fol. 34. b. Wheresoever the Writ demands Land Rent c. In certain the demandant after judgement may enter or distrein before any seisin delivered to him by the Sheriff upon a Writ of habere facias seisinam But in Dower c. the demandant cannot enter c. until execution sued for the Writ demandeth nothing in certain Assignment of Dower must either must be by the Sheriff by the Kings writ or else by the heir or other Tenant of Land by consent and agreement between them If the husband make several feoffments of several parcels and dieth and one Feoffee assign Dower to the wife of parcel of Land in satisfaction c. The other Feoffees shall take no benefit of this assignment because they are strangers thereunto and cannot plead the same But in that case if the husband dieth seised of other lands in see simple c. And his heir endoweth the wife of certain of those lands in full satisfaction c. This assignment is good and the several Feoffees shall take advantage of it And therefore if the wife bring a writ of dower against any of them they may vouch the heir c. So as there is a privity in this respect between the heir and the feoffees and by this means the same assignment may be pleaded by the heir that made it 33 Ed. 3. tit Judgm 254 c. The assignment must be certain and absolute and by such as have a freehold or against whom a writ of dower doth lie c. fol. 35. a. Vide lib. There needeth neither livery of seisin nor writing to any assignment of dower becaus it is due of common right Assignment must be of some part of the land or of a rent c. issuing out of the same Dier 91. Sect. 40. Tenant for life of a carue of land the reversion to the father in fee the son and heir apparent endoweth his wife c. Ex assensu patris Tenant for life dieth the husband dieth this is no good endowment c. because the father at the time of the assent had but a reversion expectant upon a freehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet Fo. 35. a. If the heir apparent be within age yet the endowment ex assensu patris is good but otherwise it is of dower ad ostiū ecclesiae 2 H. 3. Dower 199. Fo. 35. b. Ten things are necessarily incident to a deed viz. First Writing 2. In Parchment or Paper 3. A person able to contract 4. By a sufficient name 5. A person able to be contracted with 6. By a sufficient name 7. A thing to be contracted for 8. Apt words required by Law 9. Sealing 10. Delivery Tradition of a deed only to the party to whom it is made is sufficient and then when words are contrary to the Act which is the delivery the words are of none effect non quod dictum est sed quod factum est inspicitur But it may be delivered to a stranger as an escrow c. Because the bare Act of delivery to him without words worketh nothing fol. 36. a. H. 12. R. in C.B. Dier 95. Cartarum alia regia alia privatorum regiarum alia privata alia communis alia universitatis Privatorum alia de puro Feoffamento simplici alia de Feoff conditionali sive conventionali alia de recognitione pura vel conditionali alia de quiete clamantia alia de confirmatione c. Verba intentioni non è contra debent inservire Carta non est nisi vestimentum donationis sive orationis Fleta l. 6. ca. 28. Nemo tenetur armare ad versarium suum contra se Scriptum est instrumentum ad instruendum quod mens vult Carta est legatus mentis Benignae sunt faciendae interpretationes cartarum propter simplicitatem laicorum ut res magis valeat quam pereat Bract. l. 2. fo 94 c. Nihil tam convenias est naturali aequitati quam voluntatem domini volentis rem suam in alium transferre ratam habere Plow Com. fo 161. b. Re verbis scripto consensu traditione Junctura vestes sumere pacta solent Pl. Co. 161. Verba cartarum fortius accipiuntur contra proferentem Generale dictum generaliter est intelligendum Verba debent intelligi secundum subictam materiam Carta de non ente non valet Sect. 41. A jointure was no bar of Dower at the Common Law For a right or title that one hath to a Freehold cannot be barred by acceptance of collateral satisfaction But now by the statute of 27 H. 8. If a jointure be made to the wife according to the purvieu of that statute it is a bar of her Dower Six things are required to a perfect Jointure 1. It is to take effect for her life in possession or profit presently after the decease of her husband 2. That it be for term of her own life or greater estate 3. It must be made to her self and to no other for her 4. It must be made in satisfaction of her whole dower and not of part c. 5. It must bee either expressed or averred to be in satisfaction c. 6. It may be made either before or after marriage If the jointure be made before marriage the wife cannot wave it and claim her dower at the Common Law but if it be made after marriage she may wave the same c. Fo. 36. b. Vide c. Dier 358. The wife shall not be barred of her jointure albeit her husband commit Treason or Felony as she shall be of her Dower ad ostium Eccle. c. By the Common Law But now at this day by the statute of the 1 Ed. 6. c. 2. and 5 Ed. 6. c. 11. The wife of a man attainted of Felony shall not lose her dower A jointure made to the wife under or above the age of nine years is good and so if Dower ad ostium ecclesiae c. being made by assent c.
of the Corn altereth not the case for the regresse is a continuation of the Freehold in him in judgment of law from the beginning If the husband and wife make a lease at will of the wifes land reserving a rent and the husband dye yet the lease continueth So if a lease be made by two to two others at will and the one of the lessors or of the lessees dye the lease at will is not determined c. l. 5. 10. Hensteads case Dier 269. b. * Quando lex aliquid alicui concedit concedere videtur id fine quo res ipsa esse non pâ—test 14. H. 8. 2. If the lessee at will be disturbed of his free entry egresse and regress to carry away his Corn c. he shall have his action upon his case and recover his damages for whensoever the law giveth any thing it giveth also a remedy for the same fo 56. a. Any Inhabitant of Southwark having by custom a watring place for Cattel which being stopped may have an action c. Sect. 69. and Sect. 70 71 72. Messuagium containeth Buildings Curtelage Orchards and Garden A Praecipe lieth not de Domo but de Messuagio Nothing that is contrary to reason is consonant to Law Si home fait un ft. de feoffment de terre c. a un auter deliver a luy le fait mes nemy livery de seisin en ceo case le feoffee enter tener a volunt c. The lessor hath no remedy at all against tenant at will for permissive Waste fo 57. a. If tenant at will grant over his estate and the grantee enter he is a desseisor and the lessor may have an action of trespasse against him though the grant is void for the will is determined A Trespass or Transgression passeth that which is right Transgressio est cum modus non servatur nec mensura debet enim quilibet in suo facto modum habere mensuram Nota in the lowest offences there are no Accessaries but all are Principals as in Riots Routs Forcible entries c. and so in the highest offence which is Crimen laesa Majestatis there be no Accessaries but in Felonies there be Accessaries both before and after Si le lessor sur tiel leas a volunt reserve a luy un annuall rent il poit distr per se rent arere ou aver de ceo un action de debt Note he may distrain c. and yet it is no rent service for no Fealty belongeth thereunto but a rent distrainable of common right fo 57. b. Tenant at will is always by right and tenant at sufferance entreth by a lawfull lease and holdeth over by wrong Sic vide diversitatem Note a diversity between particular estates made by the terretenant and particular estates created by act in law as if a Guardian after the full age of the heir continueth in possession he is not tenant at sufferance but an Abator against whom an Assize of Mortdanc doth lie c. F.N.B. 196. CHHP. IX Tenant by Copy Sect. 73. TEnantes per Copie de Court-Roll out use dauÌ„ terres c. a eux a lour heirs in fee fee taile ou a terme de vie c. a volunt le sur solonque le custome del Manor Eundum veteres aut ex scripto qui Bockland aut fine scripto qui Folkland dicebatur possidebant Curia Court is a place where Justice is judicially administred and is derived à cura quia in curiis publicis curas gerebant Court Baron so called of the Baron who is Lord of the Manor fo 58. a. or for that it hath relation to the Freeholders As there may be a Court Baron of Freeholders onely without Copiholders and then is the Steward the Register So there may be a customary Court of Copiholders only c. then is the Lord or his Steward the Judge And when the Court Baron is of this double nature the Court Roll containeth as well matters appertaining to the customary Court as to the Court Baron Manerium dicitur a manendo secundum excellentiam sedes magna fixa stabilis Et sciendum est quod Manerium poterit esse per se ex pluribus edificiis coadjuvatum five villis Hamletis adjacentibus Poterit etiam esse Manerium per se cum pluribus villis cum pluribus Hamletis adjacentibus quorum nullum dici poterit Manner perse sed villae suae Hamlettae poterit etiam esse per se Manerium Capitale plura continere sub se Maneria non Capitalia plures villas plures Hamlettas quasi sub uno Capite aut dominio suo Bract. l. 4. fo 212. Tenant for years Tenant by Statute Merch Staple Elegit Gardian in chivalry c. who are not properly seised but possessed are domini pro tempore not only to make admittance but to grant voluntary Copies of ancient Copihold Lands which come into their hands Fo. 58. b. And in some special Case an estate may be granted by Copy by one that is not dominus pro tempore c. As if the Lord of a Manor by his will in writing deviseth that his executor shall gâ—ant the Customary Tenements of the Mannor according to the custome of the Mannor for the payment of his debts and dieth the executor having nothing in the Mannor may make grants c. Consuetudo properly signifieth a custome as here c. But legally it signifieth also Tolles Murage Pontage c. Sect. 74. and 75. Et tiel Tenant ne poit alien sa terre per fait c. Fo. 59 a. But when a man hath but a right to a Copihold he may release it by Deed or by Copie to one that is admitted Tenant de facto l. 4. 24. b. Kite Queinton For is facere i.e. extra legem seu consuetudinem facere to do a thing against or without Law or Custome and that legally is called a forfeiture Si tiel tenant voit alien sa terre a un aut il covient c. de surrender les tenements en asc ' Court c. en le main le signior al use celuy que at avera le state Ils nont auter evidence concernant lour tenements forsque le Copies des Rolles de Court. Of Fines due to the Lord by the Copyholder some be by the change or alteration of the Lord and some by the change of the Tenant the change of the Lord ought to be by the Act of God otherwise no Fine can be due but by the change of the Tenant either by the act of God or by the Act of the party a Fine may be due Of Fines taken of Copyholders some be certain by custome and some be incertain but that Fine though it be incertus yet must it be rationabilis Fo. 59. b. Vide c. The Lord of a Manor is described by Fleta as he ought to be in these words Fleta lib. 2. ca.
Land and makes a feoffment in fee with warranty and dyeth this is no disccontinuance of the rent 3 H. 7. 12. 9 E. 4. 22. And where the thing doth ly in livere as Lands and Tenements yet if to the conveyance of the freehold or inheritance no livery of seisin is requisite it worketh no discontinuance As if Tenant in Taile exchange Lands c. or if the King being Tenant in Taile grant by his Letters Patents the Lands in fee there is no discontinuance wrought 38 H. 8. Pat. Br. 10. 1. Pl Com 233. l. 1. f. 26. Altwoods case Of a thing that lyeth in grant though it be granted by Fine yet it is no discontinuance and this is Regularly true 48 E. 3. 23. If Tenant in taile make a Lease for years of Lands and after levy a Fine this is a discontinuance for a Fine is Feoffment of Record and the freehold passeth 15 E. 4. discontinuance 30. But if Tenant in taile make a Lease for his owne life and after levy a Fine this is no discontinuance because the reversion expectant upon a Statute of freehold which lyeth only in grant passeth thereby 6 H. 8. 56 57. Sect. 620. Si Tenant in tail fait Lease a Terme de vie le lesee c. apres tenant in taile grant per son fait le reverson in fee a un auter le tenant a terme de vie attornment mor. vivant le Tenant in taile le grantee del reversion enter c. en la vie le Tenant in taile donque ceo est un discontinuance en fee. For when the revetsion in this case executed in the life of Tenant in taile it is equivalent in judgement of Law to a Feoffment in Fee for the state for life passed by livery 32 E. 3. discontinuance 2. 3 H. 4. 9. 34. Ass 6. p. 4. 38. Ass 6. p. 6. But if the Tenant in taile make a Lease for Terme of the life of the Lessee c. and grant over the reversion and dyeth and after the death of Tenant in taile the Lessee dye the entry of the issue is lawfull because by the death of the Lessee the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also If Tenant in taile make a Lease for life the remainder in fee this is an absolute discontinuance albeit the remainder be not executed in the life of Tenant in taile because all is one estate and passeth by livery and so note a diversity between a grant of a reversion and a limitation of a remainder 21 H. 6. 52 53. B. Tenant in Tail makes a gift in Tail to A. and after B. releases to A. and his heirs and after A. dyeth without issue the issue of the first Donee may enter upon the collateral heir because A. had not seisin and execucion upon the reversion of the land in the demesn as of fee. But if Tenant in Tail make a lease for the life of the lessee and after release to him and his heirs this is an absolute discontinuance because the fee simple is executed in the life of Tenant in Tail If Tenant in Tail of a Manor whereunto an Advowson is appendant make a feoffment in fee by Deed of one acre with the Advowson and the Church becommeth void and the feoffee present Tenant in Tayl dyeth the Church becometh void the issue shall not present untill he hath reconcontinued the acre But if the feoffee had not executed the same by Presentment then the issue in Tail should have presented And so was it at the Common Law of the husband seised in the right of his wife Mutatis mutandis 34 E. 1. Qu. imp 179. 22 E. 3. 6. 17 E. 3. 3. 33 E. 3. qu. imp 196. 23 Ass 8. If the husband and wife make a lease for life by Deed of the wives land reserving a rent the husband dyeth this was a Discontinuance at the Common Law for life and yet the reversion was not discontinued but remained in the wife otherwise it is as if the husband had made the lease alone 38 E. 3. 32. 18. Ass 2. 18 E. 3. 54. 22 H. 6. 24. If Tenant in Tail make a lease for life of the lessee and after grant the reversion with Warranty and dyeth before execution this is no discontinuance because the discontinuance was but for life and the Warranty cannot enlarge the same Bro. Discontinuance 3. 21 H. 7. 11. l. 1. fo 85. l. 10. fo 96 97. If Tenant in Tail make a Lease for life and grant the reversion in fee and the lessee attorn and that grantee grant it over and the lessee attorn and then the lessee for life dyeth so as the reversion is executed in the life of Tenant in Tail yet this is no Discontinuance because he is not in of the grant of the Tenant in Tail but of his grantee 15 E. 4. Discont 30. Vide Sect. 642. fol. 333 b. If Tenant in Tail make a lease for life and after disseiseth the lessee for life and maketh a feoffment in fee the lessee dyeth and then Tenant in Tail dyeth albeit the fee be executed yet for that the fee was not executed by lawful means it is no Discontinuance Sect. 625. Fol. 335. a. Littleton here putteth his case of a reversion immediately expectant upon the gift in Tail Also it is to be intended of a feoffment made to the donor solely or only for if the donee infeoff the donor and a stranger this is a Discontinuance of the whole land 41 Ass 2. 41 E. 3. 2. 28 H 8. Dyer 12. lib. 1. fo 140. in Chudleys case 9 E. 4. 24. b. But if Tenant for life make a lease for his own life to the lessor the remainder to the lessor and estranger in fee in this case forasmuch as the limitation of the fee should work the wrong it enureth to the lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger Nul poit discont ' lestate en taile si non que il discont ' le reversion c. ou le remainder c. 40 Ass 36. 61 Ass 36. 18 E. 3. 45. F N B. 142 a. Pl. Com. 555. And therefore if the reversion or remainder be in the King the Tenant in Tail cannot discontinue the estate Tail But Tenant in Tail the reversion in the King might have barred the estate Tail by a Common recovery untill the Stature of 33 H. 18. cap. 20. which restraineth such a Tenant in Tail but that Common Recovery never barred nor discontinued the Kings reversion 33 H 8. Tail Br. 41. If a feme covert be Tenant for life and the husband make a Feoffment in fee and the lessor enter for the forfeiture here is the reversion revested and yet the Discontinuance remained at the Common Law 27 Ass p. 60. 29 Ass 43. 11 Ass 11. 16. Ass 11 18 E. 3. 45. Sect. 632. Fol. 336. b. Si
which issue is found for the Demandant whereupon he recovereth the Tenant albeit Assets do after descend shall never have a scire fac upon the said Judgement for that by his false plea he hath lost the benefit of the said Statute fol. 366. a. Touching the third sufficient hath been spoken before For the last Nota That if the husband be seized of lands in right of his wife and maketh a Feoffment in fee with Warranty the wife dyeth and the husband dyeth this Warranty shall not binde the heir of the wife without Assets albeit the husband be not Tenant by the Curtesie 8 E. 2. gar 81. 18. E. 3. 51. A Warranty may not onely be annexed to Freeholds or Inheritance corporeal which pass by Livery as houses and lands but also to Freeholds or Inheritances incorporeal which lie in grant as Advowsons and to Rents Common Estovers c. which issue out of Lands or Tenements and not onely to Inheritances in esse but also to Rents Commons c. newly created As a man some say may grant a Rent c. out of land for life in Tail or in fee with Warranty for although there can be no Title precedent to the Rent yet there may be a Title precedent to the land out of which it issueth before the grant of the Rent which rent may be avoided by the recovery of the land in which case the grantee may help himself by a Warrantia Cartae upon the especial matter and so a Warranty in Law may extend to a rent c. newly created and therefore if a rent newly created be granted in exchange for an acre of land this exchange is good and every exchange implyeth a Warranty in Law and so a Rent newly created may be granted for owelty of partition 2 H. 4. 13. 30 H 8. Dyer 42. Temps E. 1. Admeasurement 16. 32 E. 1. Vouch 294. 30 E. 1. Exch. 16. 9 E. 4. 15. 15 E. 4. 9. 29 Ass 13. A man seised of a rent seck issuing out of the Manor of D. taketh a wife the husband releaseth to the Terre-tenant and Warranteth Tenementa praedicta and dieth the wife bringeth a Writ of Dower of the rent the Terre-tenant shall vouch for that albeit the release enured by way of Extinguishment yet the Warranty extended to it and by Warranty of the land all rents c. issuing out of the land that are suspended or discharged at the time of the Waranty created are waranted also Vide Sect. 741. 45 E. 3. Vouch. 72. 9 E. 3. 78. 18 E. 3. 55. 30 E. 3. 30. 21 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 10 E. 4. 9. b. 21 E. 4. 26. 14 H. 8. 6. 30 H. 8. Dyer 42. Sect. 698. Fo. 366. b. A Warranty that commenceth by disseisin is so called because Regularily the Conveyance whereunto the warranty is annexed doth work a disseisin The Example that Littleton putteth of this kinde of Warranty have four qulities 1. That the disseisin is done immediately to the heir that is to be bound l. 5. fo 79. Fitzh c. and yet if one brother make a gift in Tail to another and the Uncle disseise the Donee and infeoff another with Warranty the Uncle dyeth and the Warranty descend upon the Donee and then the Donee dyeth without issue albeit the disseisin was done to the Donee and not to the Donor yet the Warranty shall not binde him 31 E. 3. garr 28. The Father the Son and a third person are joyntenants in fee the Father maketh a Feoffment in fee of the whole with Warranty and dyeth the Son dyeth the third person shall not * avoid the feoffment * onely for his own part but also for the part of the Son and he shall take advantage that the Warranty commenced by disseisin though the disseisin was done to another fol. 367. a. 2. That the Warranty and disseisin are simul and semel and yet if a man commit a disseisin of intent to make the feoffment in fee with Warranty albeit he make the feoffment many years after the disseisin yet the Law shall adjudge upon the whole matter and by the intent couple the disseisin and the Warranty together 19 H. 8. 12. l. 5. fo 79. b. 3. That the Warranty c if it should binde should binde as a collateral Warranty and therefore commencing by disseisin shall not binde at all A lessee for years may make a feoffment and a fee simple shall passe so as albeit as to the lessor it worketh by disseisin yet between the parties the Waranty annexed to such estate standeth good upon which the feoffee may vouch the feoffor or his heirs as by force of a lineal Warranty Note there is a feoffment de jure and a * feoffment de facto If the Lord be Gardein of the Land or if the Tenant make a lease to the Lord for years or if the Lord be Tenant by statute Merchant or Staple or by Elegit of the Tenancy and make a feoffment in fee he hereby doth extinguish his Seignory although having regard to the lessor it is a disseisin Vide Sect. 611. Brit. ca. Disseisin 50 E. 3. 12. b. 8 H. 7. 5. 19 E. 2. Ass 400. 3 E. 4. 17. 12 E. 4. 12. 10 E. 4. 18. F.N.B. 201. l. 3. f. 78. Fermors case * Temps E. 1. Counterplea de Vouch. 126. 50 E. 3. ibid. 124. The 4. quality is a disseisin but that is put for an example For if the Tenant dyeth and an Ancestor of the Lord enter before the entry of the Lord and make a feoffment in fee with Warranty and dyeth this Warranty shall not binde the Lord because it commenceth by wrong being in nature of an Abatement sic de similibus Sect. 700. Fol. 367. b. If the purchase were to the Father and the Son and the heirs of the Son and the Father maketh a feoffment in fee with Warranty if the Son enter in the life of the Father and the feoffee re-enter the Father dyeth the Son shall have an Assize of the whole 13 Ass 8. 13 E. 3. gar 24. 25. 37. 22 H. 6. 51. 8 H. 7. 6. But if the Son had not entred in the life of the Father then for the Fathers moity it had been a barre to the Son for that therein he had an estate for life and therefore the Warranty as to that moity had been collateral to the Son and by disseisin for the Sons moity and so a Warranty defeated in part and stand good in part If a man of full age and an Infant make a feoffment in fee with Warranty it is good for the whole against the man of full age and void against the Infant For albeit the feoffment of an Infant passing by Livery of seisin be voidable yet his Warranty which taketh effect onely by Deed is meerly void Temps E. 1. Voucher 207. 39. E. 3. 26. John Londons Case 14. H. 6. Sect. 701. Fo 368. a. b. Duo non possunt in solido rem
the Successor but the Executor and the Ward shall be Assets in his hands So it is of Heriots Relief c. 40 E. 3. 14. But if a Church become void in the life of a Bishop and so remain untill after his decease the King shall present thereunto and not the Executor or Administrator for nothing can be taken for a prefentment and therefore it is no Assets 9 H. 6. 58. 11 H. 4. 7. Sect. 741. fol. 388. a. Here the collaterall warranty doth descend upon the issue in tail before any right doth descend unto him wherein this diversity is to be observed vide Sect. 707. where the right is in esse in any of the Ancestors of the heir at the time of the discent of the collaterall warranty there albeit the warranty descend first and after the right doth descend the collaterall warranty shall bind as appeareth in this case of our Author But where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warranty there it shall not bind As if Lord and Tenant be and the Tenant make a feoffment in fee with warranty and after the feoffee purchase Seigniory and after the Tenant cesse the Lord shall have a Cessavit for a warranty doth extend to rights precedent and never to any right that commenceth after the warranty 7 E. 3. 48. 30 Hen. 8. 42. Also a warranty shall never barre any estate that is in possession reversion or remainder that is not devested displaced or turned to a right before or at the time of the fall of the warranty If a Lease for life be made to the Father the remainder to his next heir the Father is disseised and released with warranty and dyeth this shall barre the heir although the warranty doth fall and the remainder cometh in esse at one time lib. 1. fol. 67. Archers Case If there be Father and Sonne and the Sonne hath a rent service suit to a Mill rent charge rent seck common of pasture or other profit appreâ—eâ—â—â—â— out of the Land of the Father and the Father maketh a feoffment in fee with warranty and dyeth this shall not barre the Sonne of the rent common c. quia in tali casu transit terra cum onere and he that is in seisin or possession need not to make any entry or claim and albeit the Sonne after the feoffment with warranty and before the death of the Father had been disseised and so being out of possession the warranty descended upon him that it should not binde him because at the time of Warranty made the Son was in possession Temps E. 1. vouch 296. 31 Ass 13. 22 Ass 36. 41 Ass 6. 33 E. 3. 3. gar 24. .. 10. f. 97. E. Seymors Case So if my collateral Ancestor releaseth to my Tenant for life this shall not binde my reversion or remainder because the reversion c. continued in mee 45 E. 3. 31. 21 H. 7. 11. But if he that hath a Rent Common or any profit out of the land in Tail disseise the Tenant of the land and maketh a feoffment to the land and warranteth the land to the feoffee and his heirs regularly the Warranty doth extend to all things issuing out of the land i.e. to warrant the land in such plight and manner as it was at in the hand of the feoffor at the time of the feoffment with Warranty and the feoffee shall vouch as of lands discharged of the rent c. at the time of the feoffment made Vide S. 698. 21 E. 4. 26. 28 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 30 H. 8. Dyer 42. 30 E. 3. 30. 9 E. 3. 28. 45 E. 3. vouch 72. F.N.B. 145. 14 H. 8. 6. A woman that hath a rent charge in fee intermarries with the Tenant of the land an estranger releasâ—th to the Tenant of the land with Warranty he shall not take advantage of this Warranty either by Voucher or Warrantia Cartae for the wife if the husband die or the heire of the wife living the husband cannot have an action for the rent upon a Title before the Warranty made for if the heir of the wife bring an Assize of Mordanc this action is grounded after the Warranty whereunto the Warranty shall not extend So it is if the grantee of the rent grant it to the Tenant of the land upon condition which maketh a feoffment of the land with Warranty this Warranty cannot extend to the rent albeit the feoffment was made of the land discharged of the rent for if the condition be broken and the grantor be intituled to an action this must of necessity be grounded after the Warranty made But in the case aforesaid when the woman grantee of the rent marrieth with the Tenant and the Tenant maketh a feoffment in fee with warranty and dieth in a Cui in vita brought by the wife as by Law shee may the feoffee shall vouch as of lands discharged at the time of the warranty made for that her Title is Paramount So if Tenant in Tail of a rent charge purchase the land and make a feoffment with warranty if the issue bring a Formedon of the rent the Tenant shall vouch causa qua supra 7 H. 4. â—7 But some do hold that a man shall not vouch c. as of land discharged of a rent service 10 E. 4. 2. b. 28 E. 3. 55. 44 E. 3. 29. Also no warranty doth extend unto meer and naked Titles as by force of a condition with clause of Re-entry Exchange Mortmain consent to the Ravisher c. because that for these an action doth lie and if no action can bee brought there can be neither Voucher Writ of Warrantia Cartae nor Rebutter and they continue in such plight and essence as they were by their originall creation and by no act can be displaced or devested out of their originall essence and therefore cannot by any warranty l. 10. fo 97. 41 Ass p. 46. And albeit a woman may have a Writ of Dower c. yet because her title of Dower cannot be devested out of the originall essence a collaterall warranty of the Ancestor of the woman shall not barre her So it is of a feoffment causa matrim praelocuti 34 E. 3. Droit 72. 21 E. 4. 82. A warranty doth not extend to any lease for years or to any estates of Tenants by Statute Staple Merchant or Elegit or any other Chattell but onely to Freehold or Inheritance And this is the reason that in all actions which lessee for years may have a warranty cannot be pleaded in barre as in an action of Trespasse or upon the Statute of 5 R. 2 c. 21 E. 4. 18. 82. 1 H. 7. 12. 22. 11 H. 7. 15 16. 20 H. 7. 2. b. 14 H. 7. 22. 43 E. 3. 15. per Finchden in Qu. imp 15 H. 7. 9. But in such actions which none but a Tenant of the Freehold can have as
vide c. The Custome that enableth the Lord of a Manor to grant a greater estate enableth him to grant a lesser Omne majus continet in se minus H. 36. El. R. 492. Barnes B. R. A letter of Attorney may be contained in a Deed of feoffment beginning Omnibus Christ fidel c. for one continent may contain divers Deeds to severall persons but if it be by Indenture c. it is otherwise Though the Attorneys warrant be generall to deliver seisin yet hee cannot deliver seisin within the view for his warrant is intendable or implyed in law of an actuall and expresse livery and not of a livery in law P. 3. El. in C.B. in Yachams case Oportet quod donationem sequatur rei traditio etiam in vita donatoris donatorii Bract. l. 2. fo 16. Therefore a letter of Attorney to deliver livery of seisin after the decease of the Feoffor is voyd But this is to be understood of sole persons c. and not of a Congregation aggregate of many persons capable 18. H. 8. 3. 11. H. 7. 19. Sect. 67. There be two kinds of Wasts viz. Voluntary and Actuall or Permissive Waste may be done in houses by pulling them down or by suffering the same to be uncovered If the Tenant do or suffer Waste to be done in houses yet if he repair them before any action brought there lieth no action of Waste against him but he cannot plead quod non fecit vastum but the speciall matter If the tenant build a new house it is waste and if he suffer it to be wasted it is a new waste 42. E. 3. 21. If the tenant suffer the houses to be wasted and then fell down Timber to repair the same this is a double waste 44. E. 3. 44. F. N. B. 59. B. Note there is a waste Destruction and Exile Waste properly is in houses gardens and in timber-trees either in cutting of them down or topping of them or doing any act whereby the timber decaies The cutting of dead wood that is ubi arbores sunt aridae mortuae cavae non existentes marhemiuÌ„ nec portantes fructus nec folia in aestate is no Waste Dier 332. If the tenant cut down underwood as he may by law yet if he suffer the young germins to be destroyed this is destruction 20 E. 3. Waste 32. 10 H. 7. 2. Exile or destruction of Villains or tenants at will or making them poor where they were rich when the tenant came in whereby they depart from their tenures is Waste fol. 53. a. b. vide libr. If the estate of the reversion continueth not but is altered the action of Waste for Waste done before which consists in privity is gone An action of waste doth lie against the Assignees of tenant by the Curtesie and of tenant in Dower and against the Assignee of the Guardian in Chivalry in all other cases the action of waste shall be brought against him that did the waste fo 54 a. vide c. An Infant a Baron and Feme shall be punished for waste done by a stranger and so shall the wife that hath the estate by survivor for waste done by the husband in his life time if she agree to the estate F.N.B. 36. b. If a lease be made to A. for life the remainder to B. for life the remainder to C. in fee After the death or surrender of B. in the mean remainder an Action of waste doth lie But if a lease for life be made the remainder for years the remainder in fee an Action doth lie presently during the term in remainder But if a man make a lease for life or years and after grant the reversion for years the lessor shall have no Action of waste during the years for he himself hath granted away the reversion in respect whereof hee is to maintain his Action Otherwise it is if hee had made a lease in reversion which had been but a future interest c. Vide c. 4. E. 3. 18. F. tit Waste No Action of waste lieth against a Guardian in Soccage but an action of trespasse Nor against Tenant by Statute Staple c. or Elegit Stat. Marlebridge cap. 17. F. N. B. 59. E. See in the Register five severall writs of waste Two at the Common law for waste done by Tenant in Dower or the Guardian and three by speciall or statute Law for waste done by Tenant for life for years and Tenant by the courtesie Qui haeret in littera haeret in cortice Vide c. As tenant for half a yeer is within the remedy of Stat. Gloc. ca. 5. which giveth waste against a lessee for life or yeers Lessee for life the remainder to him for 21 yeers he hath both estates in him so distinctly as he may grant away either of them For a greater estate may uphold a lesser but not è converso fol. 54. b. If a man make a lease for life to one the remainder to his Executors for twenty one years the term for yeers shall vest in him For even as an Ancestor and an Heir are correlativa as to inheritance as if an estate for life be made to A. the remainder to B. in taile the remainder to the right heires of A. the fee vesteth in A. as if it had been limited to him and his heires even so are the Tâ—stators and Executors Correlativa as to any Chattel CHAP. VIII Of Tenant at will Sect. 68. EVery lease at will must be in law at the will of both parties Possessio precaria nuda pro voluntate domini potest revocari fol. 55. a. Fleta l. 3. Tenant at will shall reap the crop which he sowed in peace albeit the lessor doth determine his will before it bee ripe for that the estate of the lessee is uncertain and it is good for the Commonwealth that the ground be sown And this is not onely proper to a lessee at will but to every particular tenant that hath an estate incertain And therefore if tenant for life soweth the ground and dyeth his executors shall have the Corn. And the same law is for lessee for yeares of tenant for life So if a man be seised of land in the right of his wife c. his executor shall have the Corn. But if husband and wife bee joynt-tenants of the land and the husband soweth the ground and the land surviveth to the wife it is said that she shall have the Corn Dier 316. But where the estate of the lessee being incertain is defeasible by a right Paramount or if the lease determine by the act of the lessee as by Forfeiture Condition c There he that hath the right Paramount or that entreth for any forfeiture c. shall have the Corn. fol. 55. b. l. 5 106 If a disseissor sow the ground and sever the Corn and the disseissee re-enter he shall have the Corn because he entreth by a former title and severance or removing
grantee shall not use one of them and leave the party to the other But where the grantee hath but one remedy that remedy cannot be barred by any proviso for such a proviso should be repugnant to the grant 28 H. 8. Dyer 9. b. And if a man by his Deed grant a rent Charge out of land provid that it shall not charge the Land albeit the grantee hath a double remedy yet the proviso is repugnant because the Land is expresly charged with the rent but the Writ of annuity is but implyed in the grant and therefore that may be restrained without any repugnant and sufficient remedy left for the grantee for which cause Littl. putteth his case of the restraint of bringing a writ of annuity Also our Author putteth his case of a rent charge continuing and of a rent charge issuing truly out of Land 9 H. 11. 53. 11. H. 8. c. mala grammatica non vitiat cartā For the Law that principally respecteth substance doth judge sometimes a double negative to be a negative according to the intent of the parties and not according to grammaticall construction Sect. 221. A. grants that B. shall distrein for such a yearly summe of money in his mannor of D. in judgemeet of Law the Mannor is charged with the rent but the person of the grantor cannot be charged because he expresly granteth no rent * for that would charge his person but that the grantee should distreine c. which onely chargeth the land Fo. 146. b. If a rent be granted out of the Manor of D. and the grantor grant over That if the rent be behind the grantee shall distrein c. in the Manor of S. this is but a penalty in the Manor of S. But both Manors are charged the one with the rent the other with the distresse for the rent the one issuing out of the land and the other to be taken upon the land lib. 7. fo 23 c. in Buts Case Quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba expressa fienda est And if in this case this shall amount to the grant of a rent out of the Manor of S. then the grantor shall be twice charged and so the Law by construction against the words and the intention of the parties shall doe injury to the grantor c. fo 147. a. And there is no diversity in this case when the Manor of S. lyeth in the same county and when it lyeth in another county for the words in both cases are all one and there is no reason to say that he shall fail of a Recovery by Assize lib. 7. f. 3. Bulwars Case 1. Ass p. 10. Vide c. If a man grant a rent out of three acres and grant over that if the rent be behind that he shall destrain c. in one of the acres this rent is entire and cannot be a rent seck out of two acres and a rent charge out of the third acre and therefore it is a rent seck for the whole and yet he shall distrain for this in the third acre vide qu. A. doth bargain and sell land to B. by Indenture and before Inrolment they both grant a rent charge by Deed to C. and after the Indenture is inrolled by the operation of the Statute it shall be the grant of B. and the confimation of A. But if the Deed had not been inrolled it had been the grant of A. and the confirmation of B. and so quancunque via data the Grant is good Home seise de 20 acr grant rent 20 s hors de chesc acre c. le grantee aūa 20 l. 22. H. 6. 10. b. Sect. 222 c. Si home ad un rent charge a luy a ses heires issunt hors de cert ' terre sil purchase asc ' parcel de cel a luy a ses heires tout le rent charge est extinct l'annuity auxi pur ceo que rent charge ne port estr per tiel Manor apportion mes si tiel parcel discend c. S. 224. a le fits auterment est Auxi per purchase de parcel c. rent service point estre apportion A rent charge by the act of the party may in some case be apportioned As if a man hath a rent charge of 20 s. he may release to the tenant of the land 10 s. and reserve part for the grantee dealeth not with the land as in case of purchase Hill 14. Eliz. in Communi Banco F. N. B. 152. d. e. If tenant pur auter vie by his Deed grant a rent charge to one for 21 years Cesty que vie dyeth the rent charge is determined and yet the grantee may have during the years a Writ of annuity for the arrerages incurr after the death of Cesty que vie because the rent charge did determine by the act of God and by the course of Law Actus leg is nulli facit injuriam Wards cited in lib. 2. In Heywards case fo 36. There be divers kinds of rent services which are not within the Statute of Quia empt terrae and yet such rent services are apportionable by the common Law As if the lessor recover part of the land c. in an action of waste or enter for a forfeiture in part c. Lib. 6. f. 1. c. Bruerton c. Lib. 8. f. 105. c. Talbots case So likewise if the lessor grant part of the reversion to a stranger the rent shall be apportioned for the rent is incident to the reversion Lib. 8. fo 79. Wildes case A rent service may be extinct for part and apportioned for the rest but a rent service cannot be suspended in part by act of the party and in esse for other part For if the lessor desseise the lessee the rent is suspended for the whole and cannot be apportioned for any part But otherwise it is where the lessor enters lawfully as upon a surrender forfeiture c. Where the rent is lawfully extinct in part 21. E. 4. 29. And yet by act in Law a rent service may be suspended in part and in esse for part As if the tenant give a part of the tenancy to the Father of the Lord in taile the Father dieth and this discends to the Lord in this case by act in Law the Seigniory is suspended in part and in esse for part and the same Law is of a rent charge 30. Ass p. 12. And when the Guardian in chivalry entreth into the Land of his ward within age now is the Seigniory suspended but if the wife of the tenant be endowed c. Now shall she pay to the Lord the third part of the rent 33. E. 3. Dower 138 this case I should have put first Tho. More Item a Seigniory may be suspended in part by the act of a stranger as if two jointenants or corperceneis be of a Seigniory and one of them disseise the Tenant of the Land the other
joyntenant or copercener shall distreine for his or her moity 27. E. 3. 88. Concerning the apportionment of rents there is a difference between a grant of a rent and a reservation of rent 22 H. 4. 17. A man against his own grant shall not take advantage of the weakness of his own estate in part vide lib c. Fo. 148. 6. And note a diversity between a rent in grosse and a rent incident to a reversion If a man grant a rent charge out of two acres and after the grantee recovereth one of the acres against the grantor by a Title Paramount the whole rent shall issue out of the other acre But if the Recovery be by a feint Title by Covine then the rent is extinct in the whole because he claimeth under the grantor Doct. Stud. l. 2 c. 17. And yet in some cases a rent charge shall not be wholly extinct where the grantee claimeth from and under the grantor As if B. make a lease of one acre for life to A. and A. is seised of another acre in fee A granteth a rent-charge to B. out of both acres and doth waste in the acre which he holdeth for life B. recovers in waste the whole rent is not extinct but shall be apportioned c. for that Nullus Commodum capere potest de injuria sua propria If the King give two acres of land of equall value to * another in fee fee tail for life or for years reserving a rent of Two shillings and the one acre is evicted by a Title Paramount the rent shall be proportioned F. N. B. 234. b. If an entire service be pro bono publico as Knights service Castlegard c. though the Lord purchase part the service remains but when entire services are for the private benefit of the Lord it is otherwise lib. 6. fo 1 2. Bruertons Case Sed vide lib. c. fo 149. a. Sect. 223. and 224. Reg. it holdeth That quae in partes dividi nequeunt solida à singulis praestantur Vide los reports Bruertons Case lib. 6. Talbots Case l. 8. f. 104. It there be Lord and Tenant by Fealty and Herriot service and the Lord purchase part of the land the Herriot service is extinct and yet it is not annual because it is entire and valuable But otherwise it is of Herriot Custome fo 149. b. If the tenant giveth to the father of the grantee of a rent charge part of the rent in tail and this descend to the grantee the rent charge shalll be apportioned and so by act in law a rent charge may be suspended for one part and in esse for another 30. Ass p. 12 fol. 149. b. And so it is if the father be grantee of a rent and the son purchase part of the land charged the father dyeth and the rent descends to the son the rent shall be apportioned and so it is if the grantee grant the rent to the tenant of the land and to a stranger the rent is extinct but for a moity 34. H. 6. 41. b. If a man hath Issue two daughters and grant a rent Charge to one of them out of his land and dyeth the rent shall be apportioned and if the grantee in this case infeoffeth another of her part of the land yet the moity of the rent temaineth issuing out of her Sisters part because the part of the grantee in the land by the descent was discharged of the rent But in all these Cases where the rent charge is apportioned by act in law yet the Writ or Annuity faileth for if the grantee should bring a Writ of Annuity he must ground it upon the grant by Deed and then must he bring it for the whole 9 Ass 22. 5. R. 2. Annuity 21. Annua nec debitum judex non separat ipsum Also in respect of the reality the rent is apportioned but the personality is indivisible c. If Execution be sued c. upon a Statute Merchant or Staple and after the inheritance of part of those lands descend to the Conusee all the Execution is avoyded for the duty is Personall and cannot be divided by act in Law Pl. Com. 72. 15. E. 4 5. If the father within age purchase part of the land charged and alieneth within age and dyeth the Son recovereth in a Writ Dum fuit infra aetat or entreth in this case the act of the Law is mixt with the act of the party and yet the rent shall be apportioned for after the recovery or entry the Son hath the land by descent fo 150. vide c. A relation or fiction of Law shall never work a wrong or charge to a third person but in fictione juris semper est aequitas lib. 3. fo 29. Butler and Bakers Case â—s if the Feoffee grant a rent charge al feoffer son seme al heires del Baron ' feme recover Dower le rent charge ferra apportion ' el distreinam c. Sect. 225. If there be Lord and Tenant by Fealty and Rent and the Lord by his Deed reciting the Tenure release all his Right in the Land saving the said rent the seigniory remains and he shall have the rent as a rent service and the fealty incident to it c. 12 E. 4. 11. 9 E. 3. 1. If the Donee hold of the Donor by fealty and certain rent and the Donor grant the services to another and the tenant attorn the rent shall passe as rent seck fol. 150. b. If there be Lord and Tenant by fealty and certain rent and the Lord grant the rent in tail or for life saving the fealty and further grant That the grantee may distrain for it albeit the reversion of the rent be a rent service yet the Donee or Grantee shall have it but as a rent seck and shall not distrain for it 7 E. 3. 2 3. adjudg Whereas in an Assize for a rent service all the tenants of the land need not be named but such as did the disseisin yet in Assize for the rent seck which sometimes was a rent service all the tenants must be named as in case of a rent charge albeit he was disseised but by one sole tenant 4 E. 2. Ass 449. 26 H. 8. Dyer 31. But if the Lord of a Manor release the Fealty to his Tenant saving the rent or that a Mesnalty become a rent by Surplusage those that are now seck and sometimes were service are part of the Manor but a rent charge cannot be part of a Manor 31 Ass 23. 22 Ass 53. Sect. 226 c. If there be Lord and Tenant by Fealty and Rent the annual rent which is a profitable service is of higher and more respect in Law than the fealty and therefore by the grant of the rent the Fealty shall pass as incident c. but it is an incident separable and therefore may be by a saving as Littleton hath said separated by it And so when the Tenure is by Fealty
Lord will distreine averia Carurae where there is a sufficient c. to be raken beside 5. If the Lord coming to distreine had no view of the Cattell within his Fee though the Tenant drive them off purposely or if the Cattell of themselves after the view goe out of the Fee or if the Tenant after the view remove them for any other cause than to prevent the Lord of his distresse In all these cases if the Lord distreine the Tenant may make rescous Vide les autorities en ceux cases 1. 6. E. 4. 11. b. F. N. B. 102. E. Lib. 4. f. 11. Bevills c. 8. H. 4. 1. 2 17 E. 3. 43. Rescous 14. If a man come to distreine for dammage feasant and see the beasts in his soile and the owner chase them one of purpose before the distresse taken if the owner of the Soile disterine them the owner of the cattell may tescue them for the beasts must be damage fesant at the time of the distresse 16. E. 4. 10. Lib. 9. fo 22. in case de avowrie There is a diversity between a Warrant of Record and a warr or an Authority in Law for if a Capias be awarded to the Sheriff to arrest a man for felony albeit the party be innocent yet cannot he make rescous But if a Sheriffe will by authority which the Law giveth him arest any man for Felony which is not guilty he may rescue himself 14. H. 7. 20. tit Just de peace 9. To counterplead the Plantiff in an Ass by which he is delayed maketh him that pleadeth it a disseisor Otherwise it is if he had pleaded nul tort c. 24. Ass 3. 29. Ass 52. Brit. Fo. 108. If any man be disturbed to enter and manure his Land this is a disscisin of the Land it self for qui adimit medium dirimit finem qui obstrnit aditum destruit commodum 26. Ass 17. 3 E. 4. 2. par Littleton Sont 4. causes de disseisin de rent charge sc Rescous replevin enclosure denier and you may adde a Fifth oiz. reststance to distreine counterpleading and vouching a Record and failer thereof Deniall is a desseisin of a rent charge as well as of a rent seck albeit he may distreine for the rent charge as well as for rent service Nota. that when Bookes say that detainer of a rent charge or seck is a disseisin it must be intended upon a demand made 14. E. 4. 4. Et Sont 2. causes de disseisin de rent seck viz. denier inclosure Sect. 240. Maxime paci sunt contraria vis injuria Omnes illos dicimus armatos qui habent cum quo nocere possunt c. Bract. Lib. 4. f. 162. Armorum appellatione non solum scuta gladii galeae continentur sed fustes lapides as the Poet. Jamque faces saxa volant furor arma miniâ—â—rat Virgillius 1. Aeneid Sed vim vi repellere licet modo fiat moderamine inculpatae tutelae non ad sumendam vindictam sed ad propulsandam injuriam Vide Sect. 589. Where a disseisin shall be by way of admittance of the owner of the rent Since Littletons time a right profitable Statute 32. H. 8. ca. 37. hath beene made for the recovery of arrerages of rents in certaine cases c. First When Littleton wrote the Heirs Executors or Administrators of a man seised of a rent service rent charge rent seck or fee fame in fee simple or fee taile had no remedy for arrerages incurred in the life of the owner of such rents But now a double remedy is given to the Executor or Administrator for payment of debts c. viz. either to destrain or to have an action of Debt 2. The preamble of the Statute concerning Executors or Administrators of Tenant for life is to be intended of Tenant pur auter vie so long as Cesty que vie liveth who are also so holâ—en by the said double Remedy but after the estate for life determined his Executors or Administrators might have had an action of Debr by the Common Law but they could not have distrained which now they may c. l. 4. 49. Ognels Case Dyer 375. 3. If a man make a lease for life or lives or a gift in taile reserving rent this is a rent service within the Statute 4. The action of debt must be brought against them that tooke the profits when the rents became arrere or against their Executors or Administrators but the distresse may bee taken upon the land be it in the Tenants hands or of any other that claimes by or from him i. e. from or under him by purchase gift or descent and not above him as the Lord by Escheat claimeth c. by reason of his Seigniory which is a Title Paramount l. 7. 39. Lillingtons Case 11. H. 4. 94. 5. Lord and Tenant rent is arrere the Lord grants his Seigniory and dyeth The Executor shall have no remedy for these arrerages because the grantor himselfe had no remedy for them when he dyed in respect of his grant and the act is accordingly 6. If the Tenant make a lease for life remainder for life remainder in set Tenant for life payes not the rent due to the Lord the Lord dyeth Tenant for life dyes the Executor cannot distrain upon him in remainder for he claimes not by descent by or from Tenant for life And so it is of a Reversion But if a man grant a rent charge to A. for the life of B. and letteth the lands to C. for life the remainder to D. in fee the rent is arrear for divers yeares B. dyeth C dyeth A. may destraine D. in remainder for all the arrerages by the latter branch of the Statute 22. H. 8. l. 5. 118. Edridges Case 7. For the arrerage of a Nom. Paenae and for reliefe or for Aid pur faire fits Chivaler c. This Statute giveth no remedy For arrerages of the Nom. Paenae the grantee or his Executor c. may have an action of Debt for Relief the Lord must distrain but his Executor by the Common Law shall have action of Debt W. 1. c 36. F. N B. 122. Note all manner of arrerages of rents issuing out of a Freehold or inheritance whether they be in Money or Corne Cattle c. within the Statute but worke dayes or any corporall service c. are not 8. If a Feme sole seised of a rent in fee taketh husband and dyeth the husband by the Common Law should not have the arrerages due before marriage but now the Statute giveth him remedy for the same L. 4. Ognels Case Liber Tertius CAP. I. Of Parceners Sect. 241. OUr Author having treated in his two former Books 1. Of Estates of Lands and Tenements and in his second Book of Tenures whereby the same have been holden Now in his third Book doth teach us divers things concerning both of them as 1. the Qualities of their Estates 2. In what cases the
be divers other limitations c. As if a rent charge be granted to A. and B. habendum to them two viz. to A. untill he be married and to B. untill he be advanced to a Benefice they be joynt-tenants in the meane time c. And if A. dye before marriage the rent shall survive but if A. had married the rent should have ceased for a moity sic è converso on the other side If an alien and a subject purchase lands in fee they are joynt-tenants and the survivorship shall hold place Et nullum tempus occurrit regi upon an office found 7 E. 4. 29. 11. H. 4. 26. Sect. 278. Omnis rati-habitio retrotrahitur mandato aequiparatur Nota That seeing Coadjutors Counsellors Commanders c. are all disseisors albeit the disseisor which is tenant dyeth yet the Assize lieth against the Coadjutor c. and tenant of the land though he be no desseisor The Demandant and others in a praecipe did disseise the tenant to the use of the others and the Writ did not abate for the Demandant was a disseisor but gained no tenancy in the land for that he was but a Coadjutor 50. E. 3. 2. A man disseised tenant for life to the use of him in the reversion and after he in the reversion agreeth c. he is a disseisor in fee for by the disseisin the reversion was divested which some say cannot be revested by the agreement of him in the reversion for that it maketh him a wrong doer and therefore no relation of an estate by wrong can help him Sect. 27. 9 Disseisin est properment lou un home enter eu asc ' terres c lou son entre nem pas congeable ousta celuy que ad franktenement c. This description c. is understood onely of such lands c. whereinto an entry may be made and not of Rents Commons c. Every entry is no disseisin unless there be an ouster also of the free hold as an Entry and a Claimer or taking of Profits c. 3 E. 4. 2. 34 Ass 11. 12. Pl. Com. 89. Parson de Honey-lane Now as there be joynt-tenants by Disseisin so are there joynt-tenants by Abatement Intrusion and Vsurpation Sect. 280. Nota que le nature de joyntenancy est que le survivor aūa solement lentier tenancy solunque tiel estate que il ad si le jointure soit continue c. mes auterment est de parceners Although survivorship be proper to joynt-tenants yet it is not proper quarto modo for if a man letteth lands to A. and B during the life of A. if B. dyeth A. shall have all by the survivor but if A. dyeth B. shall have nothing Two or more may have trust or authority committed to them joyntly and yet it shall not survive But with a diversity between a naked Trust c. and a Trust joyned to an estate or interest 2. There is a diversity between Authorities created by the party for private causes and Authority created by Law for execution of Justice Ex gr As if a man devise that his two Executors shall sell his land if one of them dye the survivor shall not sell it but if he had devised his lands to his Executors to be sold there the survivor shall sell it 39. Ass p. 17. 30 H. 8. tit Devise B. 31 Dyer 3 El. 190. Br. tit Cond 190. If a man make a Letter of Atturney to two to doe any act the survivor shall not doe it but if a Venire fac be awarded to four Coroners to impannel and return a Jury and one of them dye yet the other shall execute and return the same If a Charter of Feoffment be made and a Letter of Atturney to four or three joyntly or severally to deliver seisin two of them cannot make livery because it is neither by them four or three joyntly nor any of them severally 38 H. 8. Dyer 62 27 H 8. f. 6. But if the Sheriff upon a Capias directed to him make a Warrant to four or three joyntly or severally to arrest the Defendant two of them may arrest him because it is for the execution of Justice which is pro bono publico Pasch 45 Eliz. in Banco Reg. inter King Hobbes Not of that kind of the infidel of Malmsbury Sect. 281 282. Survivor holdeth place regularly as well between joynt-tenants of goods and chattels in possession or in right as of Inheritance or Free hold fo 182. a. Si un obligation soit f◠a plusors pur un debt celuy que survequist avera tout le debt ou duty issent est daverts Covenants Contracts c. Mes Jus accrescendi inter mercatores pro beneficio commercii locum non habet F.N.B. 117. E. 38. E. 3 7. Sect. 283. Terres sont dones a 2. homes a les heires de lour 2. corps engendres en cen case les donees ont joint estre pur lour 2. vies encore ils ont several inheritances entant que ils ne poient aver per nul possibility un heire enter eux engendre sicome home feme point aver c. Note albeit they have severall inheritances in taile and a particular estate for their lives yet the inheritance doth not execute and so break the joynt-tenancy but they are joynt-tenants for life and tenants in common of the inheritance in tail Here a diversity is implyed when the state of inheritance is limited by one Conveyance as in this case it is there are no severall estates to drowne one in another but when the states are divided into severall Conveyances their particular estates are distinct c. and the one drownes the other As if a lease be made to two men for terme of their lives and after the lessor granteth the reversion to them two and to the heirs of their two bodies the juynture is severed and they are tenants in common in possession and it is further implyed that in this Case of Littletons there is no division between the estates for lives and the severall inheritances because they cannot convey away the inheritance after their decease for it is divided onely in supposition of law and to some purposes the inheritance is said to be executed 12 E. 4. 2. b. If a man make a lease for life and after granteth the reversion to the tenant for life and to a stranger and to their heires they are not joynt-tenants of the reversion but the reversion by act of law is executed for the one moity in the tenant for life and for the other moity he holdeth it still for life the reversion of that moity to the grantee 39 H. 6. 2. b. And so it is if a man make a lease to two for their lives and after granteth the reversion to one of them in fee the joynture is severed and the reversion is executed for the one moity and for the other moity there is tenant for life
A. be bound to B. to pay 10. l. to C. A. tenders to C. and he refuseth the Bond is forfeit But if the act had been by the Condition to be made to the Obligee or to any other for his benefit a tender c. shall have the benefit because he himself is the cause that the Condition could not be performed 22 E. 4. 13. 10 H. 7. 14. b. 35 H. 8. Dyer 56. lib. 5. fo 23. Lambes Case * 8 E. 4. 14. 5. Between a Condition of an Obligation and a Condition upon a Feoffment where the act that is local is to be done to a stranger and where to the Obligee or Feoffor himselfe for the stranger shall be infeoffed as soon as conveniently may be otherwise it is of the Feoffor c. for the privity of the Condition c. Lib. 6. fo 31. Boothies Case l. 2. fo 79. b. Seignieur Cromwels Case 21 E. 4. 41. 2 E. 4. 3 4. 4 E. 4. 4. b. 26 H. 8. 9. b. 6. When the Obligor or Feoffor is to infeoff a stranger as hath been said and when a stranger is to infeoff the Feoffee or Obligee As if A. infeoff of black acre upon Condition that if C. infeoff B. of white acre A. shall re-enter C. hath time during his life if B. doth not hasten it c. and so of an Obligation fo 108. b. 7. But in some cases albeit the Condition be collateral and is to be performed to the Obligee and no time limited yet in respect of the nature of the thing the Obligor shall not have time during his life to performe it As if the Condition of an Obligation be To grant an Annuity to the Obligee during his life payable at Easter this Annuity must be granted before Easter c. Dyer 14 Eliz. 311. 8. When the Obligor Feoffor or Feoffee or a stranger c. is to do a sole act as to go to Rome c. they have time during life c. The Executor c. may when a man is limited pay the money vide S. 334. l. 5. fo 96 97. Goodales Case If I infeoff one in fee upon Condition to make a gift in tail to I.S. and he refuseth it and a tender and refusal is made there the Feoffor shall not re-enter for it was intended that the Feoffee should have an estate in the land And so it is if the Condition be That the Feoffee shall grant a rent charge to a stranger 2 E. 4. Enter Congeable 25. But otherwise it is if the Condition be to infeoff I. S. and his heirs and a tender and refusal is made c. 19 H. 6. 34. When the Executors make a tender and the Feoffee refuseth albeit the heir who hath a Title of Entry be a third person yet is he no stranger but he and the Executors also an◠privies in Law Concerning goods and chattels either in possession or in action the Executor doth more actually represent the person of the Testator then the heir doth the person of the Ancestor For if a man bindeth himself his Executors are bound though they be not named but so it is not of the heir Sect. 338 339. En touts cases de Condition de payment de certain fum en gross touchant terres c. si loial tender soit unsoits refuse celuy que doit le tender mony ē de ceo assouth discharge pur touts temps apres i. e. for ever to make any other tender but if it were a duty before though the feoffor enter by force of the Condition yet the debt or duty remaineth As if A. borrow 100 l. of B. and after mortgage lands to B. and he refuse it A. may enter c. and the land is freed for ever of the Condition but yet the debt may be recovered by action c. But if A. without any loan debt or duty preceding infeoff B. of land upon Condition for the payment of 100 l. to B. in nature of a gratuity or gift in that case if tender be made and he refuse B. hath no remedy therefore fol. 209. b. Vide Libr. c. The Agreement precedent doth guide the payment subsequent and the payment ought to be real and not in shew or appearance 18 E. 4. 18. 19 H. 6. 54. 20 E. 3. Account pag. 70. If the Condition upon Mortgage be To pay to the Mortgagee or his heirs the money c. and before the day of payment the Mortgagee dyeth the Feoffee cannot pay the money to the Executors c. for In hoc casu designatio unius personae est exclusio alterius expressum facit cessare tacitum Lib. 5. c. Dyer 2 Eliz. 181. 44 E. 3. 1. b. fo If a man make a Feoffment in fee upon Condition That if the Feoffor pay to the Feoffee his heirs or assignes 20 l. before such a Feast and before the Feast the Feoffee maketh his Executors and dyeth the Feoffor ought to pay the money to the heir and not to the Executors for the Executors in this case are no Assignees in Law And the Feoffee hath an estate in the land which he may assign over and where there may be Assignees in Deed the Law shall never seek out or appoint any assigns in Law 27 H. 8. 2. 4 Mar. 140. a. M. 23 24. El. in Curia Wardorum inter Randall Browne 2 El. Dyer 181. Pl. Com. Chapmans Case 186. 188. 17 Ass Pl. 2. Sect. 240. Comment ascun ont dit que le feoffor ē tenus de tender c. sur la terre tenus in Mortgage pur ceo que le condition ē dependant sur le terre uncore ceo ne prove que le feasans de le condition deste performe covient erre fait sur la terre c. lestate de la terre ē dependant sur la condition c. The money is a sum in grosse and collateral to the Title of the land and the Feoffor must tender the money to the person of the Feoffee and it is not sufficient for him ro tender it upon the land 8 E. 4. 4. 14. 11 H. 4. 62. 17 Ass p. 2. 21 H. 7. Kelway 74. 16 Eliz. Dyer 327. l. 4. f. 73. Boroughs Case 21 E. 4. 6. Otherwise it is of a rent that issueth out of the land 8 E. 4. 2. But a corporal service is issuing out of land as Homage c. must be done to the person of the Lord 21 Ass 3. 7 E. 4. 4. 21 E. 4. 17. 19 Eliz. Dyer 354. lib. 8. fo 92. Frances Case If A. be bound to B. with condition that C. shall infeoff D. on such a day C. must give notice to D. thereof and request him to be on the land at the day to receive the Feoffment and he is bound to seek D. and to give him notice 2 E. 4. 3. 4. Sect. 341 342. Est diversity quant al tender de le rent que ē issuant horse de la terre
donques il est le fait d'ambideux c. The feoffee is no way made party to make it being made in the first person but onely by the clause of putting his Seal thereunto Vide Lib. c. Sect. 374. If A. by Deed indented between him and B. let lands to B. for life the remainder to C. in fee reserving a rent Tenant for life dyeth he in remainder entreth into the lands he shall be bound to pay the rent because he agreeth to have the lands by force of the Indenture 50 E. 22. 3 H. 6. 26. b. fo 231. a. An Indenture of lease is ingrossed between A. of the one part and D. and R. of the other part which purport a demise for years by A. to D. and R. A. sealeth and delivereth the Indenture to D. and D. seal the Counterpane to A. but R. did not seal and deliver it And by the same Indenture it is mentioned that D. and R. did grant to be bound to the Plaintiff in 20 l. in case that certain conditions comprised in the Indenture were not performed And for this 20 l. A. brought an action against D. onely and sued forth the Indenture The Defendant pleaded That it is proved by the Indenture that the demise by Indenture was made to D. and R. which R. is in full life and not named in the Writ Judgement of the Writ The Plaintiff replied That R. did never seal and deliver the Indenture and so his Writ was good against D. sole And there the Counsel of the Plaintiff took a diversity between a rent reserved which is parcel of the lease and the land charged therewith and a sum in gross as here the 20 l. is for as to the rent they agreed That by the agreement of R. to the lease he was bound to pay it but for the 20 l. that is a sum in gross and collateral to the lease and not annext to the land and groweth due onely by the Deed and therefore R. said he was not chargeable therewith for that he had not sealed and delivered the Deed. But in as much as he had agreed to the lease which was made by Indenture for the same sum in gross and for that R. was not named in the Writ it was adjudged that the Writ did abate 38 E. 3. 8. a. vide 44 E. 3. 11 12. Qui sentit commodum sentire debet onus transit terra cum enere Sect. 375. Le feoffer poit pledere condition en fait Poll pur ceó que il est privy al fait c. Felix qui potuit rerum cognoscere causas Et ratio melior semper praevalet Fol. 231. b. If the Deed remain in one Court it may be pleaded in another Court without shewing forth Quia lex non cogit ad impossibilia 40 Ass 34. l. 5. 75. b. Wymarks 12 H. 4. 8. F. N. B. 243. Sect. 376. When divers do a Trespass the same is joynt or several at the will of him to whom the wrong is done yet if he release to one of them all are discharged because his own Deed shall be taken most strong against himself but other wise it is in case of Appeal of Death c. As if two women be joyntly and severally bound in an Obligation if the Obligee release to one of them both are discharged and seeing the Trespassers are parties and privies in wrong the one shall not plead a Release to the other without shewing of it forth albeit the Deed appertain to the other 27 E. 3. 83. 13 E. 4. 2. 15 E. 4. 26. 21 E. 4. 72. 22 E. 4. 7. 13 H. 8. 10. 34 H. 8. estrange al fait 21. Sect. 377. Semper quaere de dubiis quia per rationes pervenitur ad legitimam rationem c. Ratio est radius divini luminis If a man hath an Obligation though he cannot grant the thing in action yet he may give or grant the Deed viz. the Parchment and Wax to another who may cancel and use the same at his pleasure Omnia praesumuntur legitimè facta donec probetur in contrarium Injuria non praesumitur fo 232. b. There be three kindes of unhappy men 1. Qui scit non docet Infelix cujus nulli sapientia prodest 2. Qui docet non vivit Infelix qui recta docet cum vivit inique 3. Qui nescit non interrogat Infelix qui pauca sapit spernitque doceri Inter cuncta leges percunctabere doctos Sect. 378. Estates que homes ont sur condition en ley sont tiels estates que ont un condition per la ley a eux annex comment que ne sont specifie en escript sicome home grant person fait a un auter le office del Parkership pur terme de son vie le estate que il ad en le office sur condition en ley sc que le Parker bien loialment gardian le Park c. issint est de offic ' de Seneschalship c. auterment bien lirroit al grantor a ses heires de luy ouste c. Quia in eo quo quis delinquit in eo de jure est puniendus 15 E. 4. 3. l. 5 E. 4. 26. 28 H. 8. Bendloes c. Lib. 6. fo 50. 95. 96 99. Mich. 33 E. 1. Coram Rege in Thesaur ' levesque de Durhams Case Forresta est tuta ferar'mansio non quarumlibet sed silvestrium non quibuslibet in locis sed certis ad hoc ideonis unde Foresta E. mutata in O. quasi feresta hoc est ferarum statio Ockam vide Bract. fo 231. 316. Non-user of it self without some special damage is no forfeiture of private Offices but Non-user of publike Officers which concern the administration of Justice or the Commonwealth is of it self a cause of forfeiture Pl. 379 380. 2 H. 7. 11. 30 H. 6. 32 c. There is a diversity between Officers that have no other profit but a collateral certain fee for there the grantor may discharge him of his service as to be a Baily Receiver Surveyor Auditor c. the exercise whereof is but labour and charge to him but he must have his Fee for the main Rule of Law is That no man can frustrate or derogate from his own grant to the prejudice of the grantee 18 E. 4. 8. 31 H. 8. Grants Br. 134. 34 H. 8. ibid. 93. 11 El. Dyer 285. But in all cases where the Officer relinquisheth his Office and refuseth to attend he loseth his office fee profit and all There is another diversity where the grantee besides his certain fee hath profits and avails by reason of his Office as the Office of Stewardship of Courts there the grantor cannot discharge him of his service or attendance for that should be to the prejudice of the grantee 22 H. 6. 10. 3. 6 E. 6. Dyer 72. Conditions in Law be of two natures i.e. by the Common Law and by Statute and those
the land was devised to A. for that purpose otherwise B. should be remediless Et interest Reipublicae suprema hominum testamenta rata haberi and the lessee of B. upon an actual ejectment recovered the moity of the land against A M. 31. and 32 El. Ban. R. Crickmers case Dyer 6 E. 6. fo 74. 7 E. 6. 70. Judicium pro veritate accipitur Fo. 236. b. Sect. 384. Defaire i.e. to defeat or undo infectum reddere quod factum est There is a diversity between inheritances executed and inheritances executory as lands executed by livery c. cannot by Indenture of defeasance be defeated afterwards and so if a disseisee release a disseisor it cannot be defeated afterwards c. but at the time of the release c. the same may be defeated c. for Quae incontinenti fiunt inesse videntur Bract. l. 2. f. 16. 17 Ass p. 2. 30 Ass p. 1. 11. But rents annuities conditions warranty c. that be inheritances executory may be defeated by defeasances made either at that time or at any time after and so the Law is of Statute Recognizance Obligation and other things executory 20 Ass p. 7. 7 E. 4. 29. Brown and Bestons case Pl. 131. 28 H. 8. Dy. 6. 27 H. 8. 15. If a man seised of lands in fee and having issue divers sons by Deed indented covenanteth in consideration of fatherly love c. to stand seised of three acres of land to the use of himself for life and after to the use of Thomas his eldest Son in Tail and for default of such issue to the use of his second Son in Tail with divers like remainders over with a Proviso that it shall be lawful for the Covenantor at any time during his life to revoke any of the said uses c. This Proviso being coupled with an Use is allowed to be good but in case of a Feoffment or any other Conveyance whereby the feoffee or grantee c. is in by the Common Law such a Proviso were meerly repugnant and void 27 H. 8. cap. 10. And first in the case aforesaid if the Covenantor who had an estate for life do revoke the uses according to his power he is seised again in fee simple without entry or claim 2. He may revoke part at one time and part at another 3. If he make a Feoffment in fee or levy a Fine c. of any part this doth extinguish his power but for that part whereas in that case the whole condition is extinct but if it be made of the whole all the power is extinguished So as to some purposes it is of the nature of a condition and to other purposes in nature of a limitation Lib. 1. fo 173 174. Digges case l. 1. f. 107. Albainers case l 10. f. 143. Screops case Lib. 7. fo 12 13. Sir Francis Englefields case 4. If he that hath such a power of revocation hath no present interest in the land nor by the Leasor of the estate shall have nothing then his Feoffment or Fine c. of the Land is no extinguishment of his power because it is meer collaterall to the Land 5. By the same conveyances that the old uses be revoked may new be created and limited where the former cease ipso facto by the revocation without either entry or claim 6. That these revocations are favourably interpreted because many mens inheritances depend upon the same Ex paucis dictis intendere plurima possis CAP. VI. Discent que tollent entries Sect. 385. DEscendere i.e. ex loco superiore in inferiorem movere Brit. fo 115 215. Vide S. 5. The Civilians call him haeredem qui ex testamento succedit in universum jus testatoris But by the Common Law he is onely heir which succeedeth by right of bloud Haeres dicitur ab haerendo quia qui haeres eÌ„ haeret hoc est proximus est sanguine illi cujus est haeres So as he that is hares sanguinis est haeres heâ—us haereditatis Nota in ancient time if the disseisor had been in long possession the disseisee could not have entred upon him Brit. Fo. 115. Likewise the disseisee could not have entred upon the Feoffee of the disseisor if he had continued a year and a day in quiet possession But the law is changed in both these cases onely the dying seised being an act in Law doth hold at this day 1 Ass 13. 9. Ass 15. Lamb. explic fo 120. 70. Porro autem quam maritus sine lite controversia sedem incoluerit eam conjux proles sine controversia possidento siqua in illum lis fuerit illata viventem eam haeredes ad se perinde atque is vivus accipiunto And one of the reasons of this ancient Law may be that the heir cannot suddenly by intendment of Law know the true state of his title Vide lib. fo 237. b. To a discent that taketh away an entry a dying seised is necessary but a man to other purposes may have lands by discent though his Ancestour died not seised 11 H. 7. 12. 40 E. 3. 24. Discents of inheritance incorporeall which lies in grant as Advowsons Rents Commons in grosse c. doe not put him that right hath to an action otherwise it is of houses and lands 6 H. 4 4. 15 E. 4. 14. F.N.B. 143. 9. 7. H. 4. 12. 5. 2. Ass p. 9. A recovery is had against Tenant for life where the remainder is over in fee Tenant for life dieth he in remainder enters before execution and dieth seised the entry of the recoveror is lawfull because he is privy in estate otherwise it is if the discent had been after execution 3 E. 4. 6. 12 E. 4. 19. 3 H. 7. 3. 6 E. 4. 11. 7 H. 7. 15. 5 H. 7. 31. 10 H. 7. 5. b. 5 H. 7. 2. A. recovereth an Advowson against B. in a Writ of Right and hath judgement finall the incumbent dieth B. by usurpation presents to the Church and his clark is admitted and instituted B. dieth A. is out of possession and the heir of B. is not so bound by the judgement either in bloud or estate but that he shall present 45 E. 3. qu. imp 139. B. levies a fine to A. of an advowson to him and his heirs after the Church becomes void B. presents by usurpation and his Clark is admitted and instituted this shall put A. the Conusee out of possession 8 E. 2. Qu. imp 166. Albeit the usurpation were in both the said cases before execution yet it put the rightfull Patron out of possession So note a diversity between a recovery of Land and of an Advowson Now by the Statute made since Littleton wrote it is enacted that except the disseisor hath been in the peaceable possession of such Manors Lands c. whereof he shall dye seised by the space of five years next after such disseisin c. without entry or continual claim c. that there such dying seised
if the disseisee disseise the heir of the disseisor albeit the heir recover the land against the disseisee yet shall he leave the preceding right in the disseisee So if a woman that hath right of Dower disseisâ— the heir and he recover the land against her yet shal he leave the right of Dower in her 5 Ass 1 10 Ass 16. 50 E 3 7 30 Ass â— E 3. â—ntry 56. Another diversity is to be noted when the meer right is subsequent and translated by act in Law there albeit the possession be recontinued yet that shall not draw the naked right with it as if the heir of the disseisor be disseised and the disseisor infeof the heir apparent of the disseisee being of full age and then the disseisee dyeth and the naked right descends to him and the heir of the disseisor recover the land against him yet doth he leave the naked right in the heir of the disseisee So if the discontinuee of Tenant in Tail infeoff the issue in Tail of full age and then the discontinuee recover c. yet he leaveth the naked right in the issue 12 Ass 41. 27 E 3 84 488. 23 H 8. Restore al action Br 5. vide S 473 475 478 487 But if the heir of the disseisor be disseised and the disseisee release to the disseisor upon Condition If the Condition be broken it shall revest the naked right And so if the disseisâ—e had entred upon the heir of the disseisor and made a Feofment in fee upon Condition if he enter for the Condition broken and the heir of the disseisor enter upon him the naked right should be left in the disseisee But if the heir of the disseisor had entred before the Condition broken then the right of the disseisee had been gone for ever 38 E 3 16 9 H 7 24 Sect 448 Naturall seisin is the freehold in deed and the civill the freehold in Law Bract l 4 f 206 236 Brit f 83 b Vide S 680 If a man levy a fine to a man Sur Com c Com ceo c. or a fine SuÌ„ conusee de droit tantum these be feoffments of record and the Conusee hath a freehold in Law in him before hee entreth 42 E 2 20 10 H 6 14 17 E 3 7 8 2 E 3 31. Vpon an exchange the parties have neither freehold in Deed nor in Law before they enter so upon a Petition the freehold is not removed untill an entry 11 H 4 61 21 H 7 12 If Tenant for life by the agreement of him in the reversion surrender unto him he in reversion hath a freehold in Law in him before he enter 32 E. 3 Bar. 262 4â— Ass â— 13 H 4 Surr. 10 Vpon a livery within view no freehold is vested before an entry 31 E 3 12 Fo 266 b If a man do bargaine and sell land by Deed indenture and intollenâ—â—â—â— the freehold in Law doth passe presently and so when use are raised by covenant upon good consideration If a Tenant in a praecipe being seised of Lands in fee confess himselfe to be a villaine to a stranger and to hold the land in villenage of him the stranger by this acknowledgement is actually seised of the freehold and inheritance without any entry 17 E 3 77 18 E 4 25 Sect 449 450 451 Fo. 267 a A release of all the right may be good to him in revoâ—sion or to him in remainder in deed â— E 3 5â— albeit he hath nothing in the freehold because he hath an estate in hiâ— â— E 4 13 14 H 4 32 b 41 E 3 17 49 E 3 28 case ult For he to whom a release is made of a bare right in lands and tenements must have either a freehold in deed or in Law in possession or a state in remainder or reversion in fee or fee taile or for life But note that the state which maketh a man Tenant to the precipe is said to be the freehold 3 E 2 enter 7. F. N.B. 20. E. Sect. 452. Fo. 267. b. Note that as a release made of a right to him in reversion or remainder shall aid and benefit him that hath the particular estate for years life or estate taile So a release of a right made to a particular Tenant for life or in taile shall aid and benefit him or them in remainder Sils ceo peient monstre The one cannot plead the Release made to the other without shewing of it for that they are privy in estate There is a diversity between severall estates in severall Lands and severall estates in one land for if two Tenants in Common of Lands grant a rent charge of forty shillings out of the same to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of Law was severall But if one be Tenant for life of lands the reversion in fee over to another if they two joyne in grant of a rent out of the lands if the grantee release either to him in the reversion or to Tenant for life the whole rent is extinguished for it is but one rent and issueth out of both estates Sect. 454. Fo. 68. a. Note two diversities 1 Between a Seigniory or rent service and a rent charge for a Seigniory or rent service may be released and extinguisht to him that hath but a bare right in the land in respect of the privity betwenn the Lord and the Tenant in right for he is not only as Tennanr to the avowry but if he die his heire within age he shall be in ward and if of full age he shall pay reliefe and if he die without heire the land shall escheat But there is no such privity in case of a rent charge for there the charge lieth upon the Land The second diversity is betweene a Seigniory and a bare right to land for a release of a bare right to land to one that hath but a bare right is void But a release of a Seigniory to him that hath but a right is good to extinguish the Seigniory Nota Seigniory rent or right either in praesenti or in future may be released five manner of wayes and the first three without any privity 1. To the Tenant of the freehold in deed or in Law 2. To him in remainder 3. To him in reversion The other two in respect of privity as 1. Where the Lord releaseth his Seigniory to the Tenant being disseised having but a right and no estate at all 2. In respect of the privity without any estate or right as by the demandant to the vouchee or donor to the donee after the donee hath discontinued in fee. vid. S. 455. l. 10. fo 48. Lampets case If the Lord hath accepted services of the disseisor then the disseiser cannot enforce the Lord to avow upon him though his beasts be taken c 20 H. 6. 9. b. 2 E 4. 6. a. But some do hold that if
of entry and Feoffment as to the land but not having regard to the Seigniory and for that the possession was never actually removed or revested from the disseisor who claimeth under the Lord the Seignory is not revived But if the Lord and the stranger disteise the Tenant and the disseisee release to the stranger there the Seigniory by operation of Law is revived for the whole is vested in the stranger which never claimed under the Lord and in that case if the Lord had died and the land had survived the Seigniory had been revived Sect. 478. Fo. â—79 a. Note that where the Law in one case doth give a man severall remedies and of severall kinds there is a great art and knowledge for him to chuse his aptest remedy 28. E. 3. 98. 9. E. 4 46. 21. E. 4. 55. 41. E. 3. 10. 2. H. 4. 12. 41. E. 3. A man makes a gift in tail the remainder in fee Tenant in tail dieth without issue an estranger intrudes and he in remainder brings a Formedon and recovered by default and makes a Feoffment in fee the intrudor reverse the recovery in a writ of desceit and entry he shall detain the Land for ever and the Feoffee shall not have a writ of right And so likewise if a disseisor die seised and a stranger abate and the disseisee release to him the heir of the disseisor shall enter and detain the land for ever 9. H 7. 24. Dormit aliquando jus moritur nunquam Right may be troden down but never troden out for where it hath been said that a release of right doth somewaies enure by way of extinguishment it is so to be understood either as Littleton doth here in respect of him that makes the release or in respect that in construction of Law it enureth not alone to him to whom it is made but to others also who be estranger to the release which as hath been said is a qulaity of an inheritance extinguished As when the heir of the disseisor is disseised and the disseisor make a Lease for life the remainder in fee if the first disseisee release to the Tenant for life this is said to enure by way of extinguishment for that it shall enure to him in remainder who is a stranger to the release and yet in truth the right is not extinct but doth follow the possession viz. The Tenant for life hath it during his time and he in remainder to him and his heirs and the right of inheritance is in him in the remainder 14 H. 8. 6. b. Sect. 479. and 480. Here Littleton putteth a diversity between releases which enure by way of extinguishment against all persons and whereof all persons may take advantage and release which in respect of some persons enure by way of extinguishment and of other persons by way of mitter le droit Or between releases which indeed enure by extinguishment for that he to whom the release is made cannot have the thing released and releases which having some quality of such release are said to enure by way of extinguishment but in troth do not for that he to whom the release is made may take the thing released 11. H. 7. 25. 37. H. 6. barr 39. 38. E. 3. 10. And here Littleton putteth cases where releases do absolutely enure by extinguishment as 1. Of the Lord and Tenant for the Tenant cannot have service to be taken of himself nor one man can be both Lord and Tenant 2. A man cannot have land and a rent issuing out of the same land 3. A man cannot have land and a common of pasture issuing out of the same land Fo. 280. a. The mesne being a feme enter-marry with the Tenant peravaile if the Lord release to the feme the Seigniory only is extinct but if the release to the husband both Seigniory and mesnalty are extinct and in this case if the Lord release to the husband and wife it is a question how the release shall enure but it is no question but that a release may be made to a measualty or a Seigniory suspended in part of the estate 19. H. 6. 19. The Lord may release his Seigniory to the tenant of the land for life or in tail sic de coeteris But so cannot one release a right or an action c. 13. E. 3. Extinguishment Br. 45. and voucher F. 120. Note that by the release of all his right in the Seigniory or the Land the whole Seigniory is extinct without any words of inheritance 12. H. 4. Release 21. 18. E. 2. ibid. 5. 26. H. 8. 57. 41. Ass 6. If there be Lord and Tenant by fealty and rent the Lord granteth the Seigniory for years and the Tenant atturn the Lord release his Seigniory to the Tenant for years and to the Tenant of the land generally the whole Seigniory is extinct and the state of the lessee also But if the release had been to them and their heirs then the lessee had had the inheritance of the one moity and the other moity had been extinct Vide lib. c. Sect. 481 482. Here it appeareth by Littleton That if a man make a lease for life the remainder in fee and Tenant for life suffer a recovery by default that he in remainder should not have a Formedon by the common Law for Littleton saith that he had not any remedy before the Statute Neither is there any such Writ in that case in the Register albeit in some books mention is made of such a writ W. 2. ca. 5. 34. E. 3. Formedon 31. 11. E. 3. ibi 31. 8. E. 3. 59. F. N. B. 117. b. 7. H. 7. 13. Mes si celuy en le remainder ust entry sur le Tenant pur vie luy disseisist apres tenant entry sur luy apres tenant pur terme de vie per tiel recovery perde per default mor. ore celuy en remainder bien poit aver breve de droit envers celuy que recovera pur ceo que le mise Seigniory joine solement sur le meer droit c. Here a disseisin gotten by wrong and defeated by the entry of him that right hath is sufficient to maintain a writ of right against the recoverer in this case for albeit the seisin is defeated between the lessee for life and him in the remainder yet having regard to the recoveror who is a meer stranges and hath no title it is sufficient against him But otherwise it is against the party himself that defeateth the seisin and the law is propense to give remedy to him that right hath 7. E. 3. 62. 38. E. 3. 37. Jur. utr 1. Lands are letten to A. for life the remainder to B. for life the remainder to the right heirs of the heirs of A. A. dieth B. enters and dieth a stranger intrudeth the heir of A. shall have a writ of right of the seisin which A. had as Tenant for life Fo. 281. a. If Lands be given
Carta autem de confirmatione est illa quae alterius factum consolidat confirmat nihil novi attribuit quandoque tamen confirmat addit Flet. l. 3. ca. 14. En asc ' case un fait de confirmation est bon available lou en tiel case un fait de release nes pas bon c. Car release ne pas available mes lou est un privity c. And note that where a confirmation shall enlarge an estate there privity is required as well as in the case of the Release 9 H. 6. 22. Release 44. Littleton in this Chapter putteth eight diversities betweene a confirmation and release And in this Chapter is also to be observed eight cases wherein a release and confirmation have the like opperation in Law Vid. Sect. 516 c. fo 296. a. If the disseisor make a Lease for years to begin at Michaelmos and the disseisee confirme his estate this is void because hee hath but interesse termini and no estate in him whereupon a confirmation may enure 4 H. 7. 10. by read 22. E. 4. 39. Sect. 519. c. Fo. 296. b. Si le desseisee confirme lestate le disseisor a aver tentant a luy pur terme de sa vie enc'le disseisor ad fee simple c. pur ceo que quant son estate fuit confime donque il avoit fee tiel fait ne pâ—it change son estate sans enter fait sur luy c. alia ratio quia confirmare idem est quod firmum facere 19 H. 6. 22. 6 E. 3. confirmation 4. Sect. 520. Fo. 297. a. Nota a diversity betweene a bare assent without any right or interest and an assent coupled with a right or interest and therefore an attonement cannot be made for a time nor upon condition but if the person make a Lease for a 100 years the Patron and ordinary may confirme 50 of the yeares for they have an interest and may charge in time of vacation Lib. 5. fo 81. Fordes case If tenant for life make a lease for a 100 yeares the lessor may confirme either for part of the terme or for part of the land But an estate of freehold cannot be confirmed for part of the estate for that the estate is intire and not severall as years be Sect. 521. Fo. 207. b. If the disseisor make a gift in taile the remainder for life the remainder to the right heires of tenant in taile this extendeth only to the estate taile c. If the disseisor infeoffe A and B and the heires of B if the disseisee confirme the estate of B for his life this shall not onely extend to his companion but to his whole fee simple because to many purposes he had the whole fee simple in him and the confirmation shall be taken most strong against him that made it If a feme disseiseresse make a feoffment in fee to the use of A for life and after to the use of her selfe in taile and the remainder to the use of B in fee and then taketh husband the disseisee and he release to A. all his right this shall enure to B. and to his own wife also for by the rule of Littleton it must enure to all in the remainder But A. lets Land to B. for life and B. maketh a Lease to C. for his life the remainder to A. in fee if A. release to C. all his right this is good to perfect the estate of C. for his life But when C. dyeth A. shall be in of his old estate c. and note that in these two cases the fee is devested and vested all at one instant c. Vide fo 297. b. Pur ceo que le remainder est dependant c. by this some have gathered that if a disseisor make a Lease for life reserving the reversion to himselfe and the disseisee confirme the estate of the disseisor that he may enter upon the lessee because the estate of him in the reversion dependeth not upon the estate for life as the remainder but all is one for by the confirmation made to him in the reversion all the right of him that confirmeth is gone as well as when he maketh it to him in remainder and he cannot by his entry avoid the estate of the lessee for life but he must avoid the estate of the lessor which against his own confirmation he cannot doe and it hath been adjudged that if a disseisor make a Lease for life and after levy a fine of the reversion with proclamations and the five years passe so as the disseisee is for the reversion barred he shall not enter upon the Lessee for life Reported by Sir Jo. Popham chief Justice Where the particular estate and the remainder depend upon one title there the defeating of the particular estate is a defeating of the remainder But where the particular estate is defeasible and the remainder by good title there though the particular estate be defeated the remainder is good As if the lessor disseise A. lessee for life and make a Lease to B. for the life of A. the remainder to C. in fee albeit A. reenter and defeate the estate for life yet the remainder to C. being once vested by good title shall not be avoided for it were against reason that the lessor should have the remainder againe against his own livery So it is if a lease be made to an Infant for life the remainder in fee the Infant at his ful age disagree to the estate for life yet the remainder is good Pl. Com. Colthirsts Case fo 298. a. If a lease be made to A. for the life of B. the remainder to C. in fee A. dyeth before an Occupant enter here is a remainder without a particular estate and yet the remainder continueth 17 E. 3. 48. A rent is granted to the Tenant of the land for life the remainder in fee this is a good remainder albeit the particular estate continued not for coinstante that he tooke the particular estate eo instante the remainder vested and the suspension in Judgement of Law grew after the taking of the particular estate 3 E. 3. Abb. Ass If a man grant a rent to B. for the life of Alice the remainder to the heirs of the body of Alice this is a good remainder and yet it must vest upon an instant 7. H. 4. 6. Sect. 522 523 524. Fol. 298. 2. A Release is more forcible in Law then a Confirmation if the disseisee and a stranger disseise the heir of the disseisor and the disseisee confirm the estate of his companion this shall not extinguish his right that was suspended So as if the heir of the disseisor re-enter the right of the disseisee is revived And so it is if the grantee of a rent charge and a stranger disseise the Tenant of the Land and the grantee confirm the estate of his companion the Tenant of the land re-enter the rent is received for
wife notwithstanding the alienation of her husband Dyer 4 5. P. M. 146. 3 El. Dyer 191. l. 8. f. 71 72. Greveleys Case If the husband levy a Fine with Proclamations and dye the wife must enter or avoid the estate of the Conusee within five years or else she is barred for ever by the Statute of 4 H 7. for the Statute of 32 H 8. doth help the Discontinuancy but not the barre and the Statute speaketh of a Fine and not of a Fine with Proclamations 6 E 6. Dyer 72. b. 4 H 7. c. 24. Feme Tenant in Tail taketh husband the husband maketh a feoffment in fee the wife before entry dyeth without issue he in the reversion or remainder may enter For 1. The reversion or remainder cannot be discontinued in this case because the estate Tail is not discontinued 2. The words of the Statute be Shall not be prejudiciall c. to the wife or her heirs or such as shall have Right Title or Interrest by the death of such wife but the same wife and her heirs c. shall or lawfully may enter c. By which words the entry of him in the reversion or remainder in that case is preserved The husband is Tenant in Tail the remainder to the wife in Tail the husband make a feoffment in fee by this the husband by the Common Law did only discontinue his own Estate taile but his wifes remainder but at this day after the death of the husband without issue the wife may enter by the said action of 32 H. 8. If the husband hath issue and maketh a feoffment of his wifes land and the wife dyeth the heire of the wife shall not enter during the husbands life neither by the Common law nor by the Statute 8 E. 2 tit cui in vita 26 34. E. 1. ibid. 30. 10 E. 3. 12. Dy. 21. Eliz. 363. Sect. 565. Fo. 326. b. By the Statute of 11 H. 7. ca. 20. If the woman hath any Estate in tail joyntly with her husband or only to her self or to her use in any lands or haereditaments of the inheritance or purchase of her husband or given to the husband and wife in taile by any of the Ancestors of the husband or by any other person seised to the use of the husband or his Ancestors and shall hereafter being sole or with any other after taken husband discontinue c. the same every such discontinuance shall be void and that it shall be lawfull for every person to whom the interest title or inheritance after the decease of the said woman should appertaine to enter c. So as if such a feme Tenant in taile do make any discontinuance in fee in taile or for life although it be with warranty yet this doth not take away the entry after her death either of the issue or of him in reversion or remainder Vide Sect. 697. l. 3. fo 50 51. Sir George Brownes case and l. 3. f. 60 c. Lin. Coll. case P. 1. f. 176. Mildmayes case Dy. 3. 4. P.M. 146. 8 El. Dy. 448 15 El. 340. 19 El. 354. 20 El. 362. 27 H. 8. 23. l. 5. f. 79. Fitz. case and Grevelys case l. 8. fo 71 c. If Lands were intailed to a man and his wife and to the heirs of their two bodies and the husband had made a feoffment in fee and dyed and then the wife dyed this had been a discontinuance at the Common Law for the title of the issue is as heir of both their bodies and not as heir to any one of them and his entry must ensue his title or action But this is remedied by the Statute of 32 H. 8. Tenant in taile shall have a quod permittat 4 E. 3. 38. 43 E. 3. 25. 4 E. 4. 25. F. N.B. 124. And he shall have a writ of Customes and services le debet solet but shall not have it in the debt only 2 E. 2. droit 28. So he shall have a Secta ad molendum in le debet solet but not in the debet tantum F.N.B. 123. Tenant in taile shall have a writ of entry in consimili casu an Admesurement a nativo habendo cessavit escheat waste c. 21 E. 3. 11. 5 E. 3. 23. 11 H. 4. 49. But tenant in taile shall not have a writ of right sur disclaimer nor a quo jure nor a ne injuste vexes nor a nuper obiit or Rationabile parte nor a Mordanc nor a sur cui in vita for these and the like none but Tenant in fee shall have and the highest writ that a Tenant in taile can have is a Formedon 2 E. 3. droit 28. 13 H. 7. 24. 5 E. 4. 2. 20 E. 3. Avowry 13â— F.N.B. 10. 46 E. 3. cui in vita 33. Sect. 596 597. Fo. 327. b. It is provided by the Statues of W. 2. c. 1 De donis cond quod non habeant illi quibus tenementum sic fuerit datum potestatem alienandi c. So as these words non habent potestatem alien do work these effects viz. as to lands that a feoffment barreth not the issue of his action but worketh a discontinuance to barre him of his entry as to rents or any thing in esse that lye in grant that the said words do his power â—o make any discontinuance as to rents c. newly created that they take away his power to make them to continue longer than during his life 18 E. 3. 12. 24 E. 3. 28. 36 Ass 8. 5 E. 4. 3. 4 H. 7. 17. Pl. Com. Smith and Stapletons case But there is a diversity between alienation working a discontinuance of an estate which taketh away an entry and an alienation working divesting or displacing of estates which take away no entry As if there be Tenant for life the remainder to A. in taile the remainder to B. in fee if Tenant for life doth alien in fee this doth divest and displace the remainders but worketh no discontinuance and so note that to every discontinuance there is necessary a divesting or displacing the estate and turning the same to a right for if it be not turned to a right they that have the Estate cannot be driven to an action therefore such inheritances as lye in grant cannot by grant be discontinued because such a grant divests no Estate but passeth only that which he may lawfully grant and so the Estate it self doth descend revert or remaine as shall be said hereafter A. maketh a gift in tail to B. who maketh a gift in tail to C. C. maketh a feoffment in fee and dyeth without issue B. hath issue and dyeth the issue of B. shall enter for albeit the feoffment of C. did discontinue in reversion of the fee simple which B had gained upon the estate tail made to C. yet it could not discontinue the right of entaile which B. had which was discontinued before and therefore when C. died without issue
then did the discontinuance of the Estate taile of B. which passed by his livery cease and consequently the entry of the issue of B. lawfull * Also nate that a discontinuance made by the husband did take away the entry only of the wife and her heirs by the common Law and not of any other which claimed by title paramount above the discontinuance As if lands had beene given the husband and wife and to a third person and to their heires and the husband had made a feoffment in fee this had been a discontinuance of the one moity and a disseisin of the other moity if the husband had dyed the survivor should have entred in the whole for he claimed not under the discontinuance but by title paramount from the first feoffor and seeing the right by law doth survive the Law doth give him a remedy to take advantage thereof by entry for other remedy for that moity he could not have Sect. 600. Fo. 328 a. It is a Rule in Law that the disseisee or any other that hath a right onely by his release or confirmation cannot make any discontinuance because nothing can passe thereby but that which may lawfully passe 9 E. 4. 18. 12 E. 4. 11. 5 H. 4. 8. 21 H. 6. 58. By a feoffment the freehold doth passe by open livery to the feoffee and by a Release a bare right Sic nota diversit Sect. 601 602 603. fo 328. b. 329. a. A warranty being added to a release or confirmation and descending upon him that right hath to the lands maketh a discontinuance otherwise it is out of the reason of the Law and worketh no discontinuance if the warranty discend upon another If Tenant in taile release to his disseisor and bind him and his heires to warranty this is a discontinuance For if the issue in taile should enter in this case the warranty which is so much favoured in Law should be destroyed and therefore to the end that if Assets in fee simple do descend he to whom the release is made may plead the same and barre the demandant by which meanes all rights and advantages are saved Sect. 604. When a Bishop c. make an Estate Lease grant or rent-charge warranty or any other act which may tend to the diminution of the revenues of the Bishoprick c. which should maintaine the successor there the privation or translation of the Bishop c. is all one with his death But Where the Bishop is patron and ordinary and confirmeth a Lease made by the parson without the Deane and Chapter and after the Parson dyeth and the Bishop collateth another and then is translated yet his confirmation remaineth good for the revenues that are to maintaine the successor are not thereby diminished and so it is in case of resignation 29 E. 3. 16. ibid. garr 99. cl contr Vide Sect. 608 609 610 611 612 613 Fo. 330 331. a. Tiels choses queux passunt en asc ' cases de tenant en le taile tantsolement per voy de grant ou per confirmation ou per releaserien poit passe pur faire estate a celuy a que tiel grant ou confirmation ou release est fait forsque ceo que le tenant en taile poit droitulerment faire ceo ne forsque pur terme de la vie c. Hereby it appeareth that a feoffment in fee albeit it be by parol is of greater operation and estimation in Law then a grant of a reversion by Deed though it be inrolled and Attornment of the lessee for yeares of a release or a confirmation by Deed. Also having regatd to the issue in taile and to them in reversion or remainder Tenant in taile cannot lawfully make a greater Estate than for terme of his life But in regard of himselfe a release or grant made by him leaveth no reversion in him but put the same in Abeiance so as after such release or grant made he shall not have any action of wast and he shall not enter for a forfeiture c. 13 H. 10. a. Br. Release 95. Sect. 614. Fo. 331. b. The Feoffee of Tenant in taile hath no rightfull Estate having respect to two persons the one is the donor whose reversion is divested and displaced and the other is to the issue in taile who is driven to his action to recover his right Deforciare signifieth to withold Lands or Tenements from the right owner in which case either the entry of the right owner is taken away or the deforceor holdeth it so fast as the right owner is driven to his reall praecipe wherein it is said unde A. eum juste deforceat or the deforceor so disturbeth the right owner as he cannot injoy his owne Brac. l. 4. fo 238. Fleta l. 5. ca. 11. There is a writ called a Quod ei deform and lyeth where Tenant in taile or tenant for life loseth by default by the Staute he shall have a Quod ei deforc against the recoveror and yet he cometh in by course of Law Westm 2. ca. 4. Sect. 615 616 617 618. Fo. 332. a.b. An Advowson is a thing that lyeth in grant and passeth not by livery of seisin 5 E. 3. 58. 21 E. 3 37 38. 43 E. 3. 1. b. 11 H. 6. 4. 5 H. 7. 37. 18 H. 8. 16. El. Dy. 323. b. If a remainder or a rent service or a rent charge or an Advowson or a common or any other inheritance that lyeth in grant be granted by Tenant in taile it is no discontinuance Brac. l. 2. f. 3. f. 266. 318. Brit. fo 187. Mir. ca. 2. S. 17. Fle. l. 3. c. 15. For that it is a maxim in Law That a grant by Deed of such things as do ly in grant and not in livery of seisin do worke no discontinuance But the particulars reason is for that of such things the grant or Tenant in taile worketh no wrong either to the issue in taile or to him in reversion or remaindet for nothing doth passe but onely during the life of Tenant in taile which is lawfull and every discontinuance worketh a wrong 6 E. 3. 56. 4 H. 7. 17. 21 H. 7. 42. 21 H 6. 52. 53. 5 E 4. 3. 21 E. 4. 5. â—2 R. 2. discontinuance 35. Br. 19 E. 3. Br. 468. Pl. Com 435. 18 Ass p. 2. If Tenant in taile of a rent service c. or of a reversion or remainder in taile c. grant the same in fee with warranty and leaveth assets in fee simple and dyeth this is neither bar nor discontinuance to the issue in taile but he may distreine for the rent or service or enter into the Land after the decease of Tenant for life But if the issue bringeth a Formedon in the discending and admitting himself out of possession then he shall be barred by the warranty and Assets 33. E. 3. from 47. 13 H. 7. 10. 36. Ass 8. 4 H. 7. 17. Tenant in taile of a rent disseises the Tenant of the
in Abeyance there said to be in suspense 19 H. 6. 60. 29 Ass P. Com. 562. 563. Walsinghams Case Tenant for life the remainder in Tail the remainder to the right heirs of Tenant for life Tenant for life grant to 〈◊〉 Stat. suum to a man and his heirs both estates do passe 44 Ass 28. 44 E. 3. 10. Jâ—â— sive rectum signifieth properly and specially in Writs and pleadings when an estate is turned to a right as by discent disseisin c. where it shall be said Quid jus descendit non terra 20 H. 6. 9. But right doth also include the estate in esse in Conveyances and therefore if Tenant in fee simple make a lease for years and release all his right in the land to the lessee and his heirs the whole estate in fee simple passeth Vide Sect. 465. Pl. Com. 484. lib. 8. fol. 153. Althams Case 39. H. 6. 38. And so commonly in Fines the right of the land includeth and passeth the state of the land as A. cognovit teneâ—enta praedicta esse jus ipsius B. c. and the Statute saith Jus suum defendere which is statum suum W. 2. cap. 3. Pl. Com. 484. 487. b. And note That there is jus recuperandi jus inenandi jus habendi jus retinendi jus percipiendi jus possidendi fo 345. b. Title properly is when a man hath a lawful cause of entry into lands whereof another is seised for the which he can have no action as Title of Condition Title of Mortmain c. Vide S. 429 659 c Every right is a Title but every Title is not such a right for which an action lyeth and therefore Titulus est justa causa possidendi quod nostrum est As by a release of a right a Title is released so by release of a Title a right is released also Interest ex vi termini extendeth to Estates Rights and Titles that a man hath of in to or out of Lands and by the grant of totum interesse suum in such lands as well reversions as possessions in fee simple shall passe Pl. Com. 374. Seignior Zouches Case 487 488. Nichol. Nichols Case 23 H. 8. Tail Br. 32. 16 El. Dyer 325. b. If Tenant for life be the remainder in Tail and he in the remainder in Tail release to the Tenant for life all his right and state in the land Hereby it is said in in our Books That the estate of the lessee is not enlarged but the release serveth to this purpose to put the state Tail into Abeyance so as after that he in the remainder cannot have an action of Waste 43 Ass p. 13. 41 E. 3. Waste 83. 11 H. 4. 67. 14 H. 7. 10. Pl. com 482. per Dyer 27 H. 8. 20. Yet in that case saving reformation the lessee for life hath an estate for the life of Tenat in in Tail expectant upon his own life 42 E. 3. 23. But if Tenant in fee release to his Tenant for life all his right yet he shall have an action of Waste and if Tenant in Tail make a lease for his own life he shall have an action of Waste F N B 60. H 42 E. 3. 18. 41 E. 3. Waste 83. Sect. 658. Fol. 347. b. Here Littleton doth adde a Limitation to that which in this Chapter he had generally said viz. That an estate Tail cannot be discontinued but where he that maketh the discontinuance was once seised by force of the Tail which is to be understood when he is seised of the Freehold and Inheritance of the estate in Tail and not where he is seised of a remainder or a reversion expectant upon a Feeehold which Freehold is ever much respected in Law Vide 637 592 596 597 601 640 641. CHAP. XII Of Remitter Sect. 659. Fo. 348. a. LOu home ad 2 Titles a terres ou tenements Et adonques est adjudge eins per force de son eigne title ceo est a luy die un Remitter pur ceo que ley luy mitter destr eins en la terre c. per le pluis eigne sure title Quod prius est verius est quod prius est tempore potius est jure A Remitter is an operation in Law upon the meeting of an ancient right remediable and a latter state in one person where there is no folly in him whereby the ancient right is restored and set up again and the new defeasible estate ceased and vanished away 25 Ass p. 4. 11 H. 4. 50. a. Here in this case Titles includeth Rights for being properly taken as in case of a Condition Mortmain Assent to a Ravisher c. there is no Remitter wrought unto them because these are but bare Titles of Entry for the which no action is given but a Remitter must be to a precedent right And Littleton in this Chapter putteth all his cases only of Remitters to rights remediable 429. 650. Sect. c. 34 H. 8 Remit Br. 50. 44 E. 3. Attaint 22. 38 Ass p. 7. Note two things 1. That this Remitter is wrought in this case by operation of Law upon the Freehold in Law descended without any entry 2. That the Law so favoureth a Remitter that if the discontinuee be an Infant or feme Covert and Tenant in Tail after a discontinuance djsseise them and dye seised the issue shall be remitted without any respect of the privilege of Infancy or Coverture 11 E. 4. 1. In this case and many other the Law that abhorreth Suits of vexation doth avoid circuity of action for the Rule is Circuitas est evitandus 11 E. 3. 3. Ass 85. 4 E. g. 35. 14 H. 6. 27. 10 H. 7. 11. F N B Mesne and Waste Sect. 660. Fo. 348. b. Since Littleton wrote and after the Statute of 2â— H. 8. c. 10. If Tenant in Tail make a Feoffment in fee to the use of his issue being within age and his heirs and dieth and the right of the estate Tail descend to the issue being within age yet he is not remitted because the Statâ— executeth the possession in such plight manner and form as the use was limited sic de similibus 35 H. 8. Dyer 54. b. 6 E. 6. ib. 77. 1 2 P.M. 116. 1 2 P. M. 129. 191. 28 H. 8. 23. b. Pl. Com. Amy Townsends Case 34 H. 8. Remit Br. 49. But if the issue in Tail in that case wave the possession and bring a Formedon in the Discend and recover against the feoffees he shall thereby be remitted to the estate Tail otherwise the lands may be so incumbred as the issue in Tail should be at a great inconvenience but if no Formedon be btought if that issue dyeth his issue shall be remitted because a state in fee simple at the Common Law descendeth unto him Pl. Com. supra Nota in this case that the State of the land out of which the rent issued being defeated the rent is defeated also Fo. 349. a. But
43. 43 E. 3. 5. Sect. 671. Note a diversity between a Remitter and a Discent For if a woman be disseised and being of full age taketh husband and then the disseisor dyeth seised this discent shall binde the wife albeit she was covert when the discent was cast because she was of full age when she took husband But albeit the wife that hath an ancient Right and being of full age taketh a husband and the Discontinue letteth the land to the husband and wife for their lives this is a Remitter to the wife for Remitters to ancient Rights are favoured in Law Sect. 672. Fo. 354. a Here it appeareth That the husband against his own alienation if he had taken the estate to him alone could not have been remitted But when the estate is made to the husband and wife albeit they be but one person in Law and no moities between them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that Remitters are favored c. therefore in this case in Judgement of Law both husband and wife are remitted which is worthy of great Observation Sect. 673. Fol. 354. b. Littleton having spoken of Remitters to the issue in Tail who is privy in blood and to the wife who is privy in person now he speaketh of Remitters to them in reversion or remainder expectant upon an estate Tail who are privy in estate and this case proveth That the wife is remitted presently for the equity of the Law requireth that as the discontinuance continuance of the estate in Tail is a discontinuance of the reversion or remainder so that the Remitter to the estate Tail should be a Remitter in the reversion or remainder 42 E. 3. 17 41 Ass 1. 36 Ass p. 4. Tenant for life the remainder to A. in Tail the remainder to B. in fee Tenant for life is disseised a collateral Ancestor of A. releaseth with Warranty and dieth whereby the estate Tail is barred the Tenant for life re-enters the disseisor hath an estate in fee simple determinable upon the estate Tail and the remainder of B. is revested in him And so note in this case the estate for life and the remainder in fee are revested and remitted and an estate of inheritance left in the disseisor 44 Ass p. 15. 44. E. 3. 30. If a Fine be levied sur grant rend to one for life or in taile the remainder in Fee if Tenant for life or in taile execute the estate for life or in taile this is an execution of the Remainder 20. E. 3. Aid 29. A gift in tail is made to B. the remainder to C. in Fee B. discontinueth and taketh back an estate in tail the remainder in Fee to the King by Deed inrolled Tenant in taile dyeth his issue is remitted and consequently the remainder as Littleton here saith and the diversity is between an Act in Law for that may devest an estate out of the King and a tortious Act or entry or a false and a fained recovery against Tenant for life or in taile which shall never devest any Estate remainder or reversion out of the King Pl. Com. 489. Nichols case and 553. Walsinghams case 17. El. Dy. 344. 25. E. 3. 48. Resceit 18. 49 E. 3. 16. Surre Staffords case l. 8. fo 76 b. But a Recovery by good Title against Tenant for life or in taile where the remainder is to the King by defeasable Title shall devest the remainder out of the King and restore and remit the right owners Cholmleyes case l. 2. 53. 7 R. 2. Aid le roy 61. 22. E. 3. 7. Sect. 674. 675 Fo. 355. Quod ei deforceat is a writ that is given by the statute of W. 2. ca. 4. to any Tenant for life or in Taile upon a Recovery by default against them in a Precipe and lyeth against the Recoveror and his heirs in which case the particular Tenant was without remedy at the common Law because he could not have a writ of right There hath been a question in our Books upon these words by default c. And some do hold contrary to three Objections made c. and as to the first they say That albeit that in the writ of waste judgement is not only given upon the default yet the default is the principal and the cause of awarding of the writ to enquire of the waste is an incident thereunto and the Law alwayes hath respect to the first and principal cause and therefore upon such a Recovery a writ of deceit lieth and that writ lyeth not but where the recovery is by default 17 E 3. 58. 29 E 3. 42. F. N. B. 98. b. 12 H. 4. 4. 19 E. 2 disceit 56. w. 2 ca. 3. 3 H. 4. 1. So in an acton of waste against the Husband and wife upon the default of the Husband the wife shall be teceived and yet the Statute there speaketh also per defaultam So upon such a recovery in waste against the Baron and feme by default the wife shall have a cui in vita by the Statute and it speaketh where the recovery is per defaul 9 E. 4. 16. and albeit the defendent may give in evidence if he knoweth it yet when he makes default the Law presumeth he knoweth not of it and it may be that he in truth knew not of it and therefore it is reason that seeing the statute that is a beneficial Statute hath given it him that he be admitted to his quod ei deforceat in which writ the truth and right shall be tried and so it is of a Recovery by default in an Ass albeit the Recognitor of the Ass give a verdict a Quod ei deforceat lyeth and all this was resolved by the whole Court of Common Pleas and so the doubt in 41 E 3. 8. well resolved 2 H. 4. 2. 21 H. 6. 56. 44 E. 3. 42. Br. quod ei deforceat 4 P. 33 Eliz Rot. 1125. inter Ed Elmer and William Thacker in quod ei deforceat Nota If Tenant for life make default after defaltation and he in Reversion is received and pleading to issue and it found by verdict for the demandant the default and the verdict are causes of the judgement and yet the Tenant shall have a quod ei deforceat As to the 2. Ob. That the defendant may have an attaint 1. It was utterly denyed that an Attaint did lie in this case for though it be taken by the oath of 12 men yet it is but an Enquest of Office where upon no Attaint did lye on either party us upon an enquiry of Collusion although it be by one Jury nor upon a verdict in a quale jus 2. Admitting that an Attaint did lye in that case yet it followeth ex conseq that a quod ei deforceat did not lye 33 E 3. quod ei deforceat pl. ult F.N.B. 156. Fleta l 5 ca. 11. 48. E. 3. 19. 40. Ass 23. 33 H. 6. 25. 39 H.
5 E. 3. enter cong 42. 15 E. 3. Age 95. 41 E. 3. 18. pe Finchden 22 E. 3. 2 b lib. 1. 15. Sir William Pelhams case Since our Author wrote the statute of 14. El. cap. 8. hath been made concerning this matter Vide l. 3. 60. Lib. 1. fo 15. And Nota That although the discontinuâ—â— groweth by matter of Record yet the Remitter may be brought by matter in paiis Sect. 676. Autor al. Contr. 44 E. 3. 17. 44 Ass 2. 43 Ass 3. Vide Sest 6â—6 Sect. 677. Fo 356. b. In this case the estate is in the feme covert presently by the livery before any agreement by the husband 15. 4. 1. b. 7 H. 6. 17. 1 H. 7. 12. b. 39 E. 3. 30. 57 H. 8. 24. If the wife survive her husband she cannot claim in by the purchase made during the coverture but the law adjudgeth her in her better right 41 E. 3. 18. But if both estates be waivable there albeit the wife prima facie is remitted yet after the decease of her husband she may elect which of the Estates she will As if lands be given to the husband and wife and their heirs the husband make a feoffment in Fee * the Feoffee giveth the husband and wife and the heirs of their two bodies the husband dieth 18 El. Dy. 351. * the Feoffee giveth land to the husband and wife c. If Lands be given to a man and the heirs females of his body and he maketh a feoffment in fee and take back an estate to him and his heirs and dyeth having issue a daughter leaving his wife grossement enseint with a Son and dieth the daughter is remitted and albeit the son be afterward borne he shall not devest the Remitter Sect. 678. Fol. 357. Covin and consent in many cases to do a wrong do choak a meer right and the ill manner doth make a good matter unlawfull 18 E. 4. 2. b. Covina is a secret assent determined in the hearts of two or more to the defrauding and prejudice of another Pl. Com. 546. Wimb If a Disseisor Intrudor or Abator do endow a woman that hath lawful Title of Dower this is good and shall binde him that right hath if there were no covin or consent before the disseisin c. 44 E. 3. 46. 11 H. 4. 60. 44 Aff. 29. 19 H. 8. 12. 18 H. 8. 5. 11 E. 4. 2. 7 H. 7. 11. In all cases where a man hath a rightfull and just cause of action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the covin doth suffocate the right so as the recovery though it be upon a good Title shall not binde or restore the Demandant to his right 41 Ass p. 28. 25 Ass p. 1. 27 Ass 74. 15 E. 4. 4. a. 12. Ass p. 10. If Tenant in Tail and his issue disseise the discontinuee to the use of the Father and the Father dieth and the land descend to the issue he is not remitted against the discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraign the first Warranty 11 E. 4. 2. 15 E. 4. 23. 14 H. 8. 12. 33 H. 6. 5. 12 E. 4. 21. b. A. and B. joyntenants be intituled to a real action against the heir of the disseisor A. cause the heir to be disseised against whom A. and B. recover and sue execution B is remitted for that he was not party to the covin and shall hold in common with A. but A. is not remitted fo 357. b. Nota it is regularly true That a feme covert cannot be a disseisoress by her commandment or procurement precedent nor by her assent or agreement subsequent but by her actual entry or proper act she may be a disseisoress And therefore some do hold that Littleton must be intended that the husband and wife were present when the disseisin was done and others do hold that Littleton is good Law albeit she were absent for if that her procurement or agreement be to do a wrong to cause a Remitter unto her in this special case she shall fail of her end and remitted she shall not be but in this special case she shall be holden as a disseisoress by her covin and consent quatenus to hinder a Remitter F.N.B. 179. g. 12. E. 4. 9. 35 Ass 5. 44. E. 3. 9. 23. 13 Ass 1. Temps E. 1. Waste 128. 16. Ass p. 7. 21. E. 4. 53. 21. H 7. 35. 3. H. 4. 17. Sect. 679. Vide Pl. Com. Amy Townsends Case 12. R. 2. Remit 12. Sect. 680 681. fol. 358. Here note five things 1. That a remainder expectant upon an estate for life worketh no Remitter but when it falls in possession for before his time he can have no action and no Freehold in him 18. H. 8. 3. 2. Though the woman might wave the remainder yet because she is presently by the death of the husband Tenant to the praecipe it is within the rule of Remitter and her power of waiver is not material 3. That a Freehold in Law being cast upon the woman by act of Law without any thing done or assented to by her doth Remitter her albeit she be then sole and of full age vide S. 447. 4. That a Praecipe lieth against one that hath but a Freehold in Law 5. That a woman shall be endowed where the husband hath the inheritance and but a Freehold in Law Brit. 83. b. Sect. 682 683 684 685. Fo. 359. Vide 12. E. 4. Compare these four Sections well together A man absent can neither take Livery nor make Livery without Deed Temps H. 8. Feoffments Br. 72. 40 E. 3. 41 .10 E. 4. 1. a. 15 E. 4. 18. 18 E. 4. 12. 22 H. 6. 12. Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur Et le fits nient conusant de ceo ne agrea a le feoffment c. Here it appeareth That if the Son be Conusant and agreeth to the Feoffment c. This is no remitter to him Vide Sect. 682. If A. be seised in Tail and have issue two Sons and by Deed indented between him of the one part and the Sons of the other part maketh a lease to the eldest for life the remainder to the second in fee and dieth and the eldest Son dieth without issue the second Son is not remitted because he agreed to the remainder in the life of the Father or if the like estate had been made by paroll if in the life of the Father the Tenant for life had been impleaded and made default and he in the remainder had been received and thereby agreed to the remainder after the death of the Father and the eldest Son without issue the second Son should not be remitted because he agreed to the remainder in the life of the Father Sect. 685. Fol. 360. a. Acts of Parliament are to be so construed
shall recover by a Writ of Cosinage Aiel and Besail and lastly that the heire of the wife after the death of the Father and Mother shall not be barred of his action to demand the heritage of his Mother by Writ of Entry which his Father aliened in the time of his Mother whereof no Fine was levied in the Kings Court Fo. 365. b. Concerning the 1. There be two points in Law to be observed 1 Albeit the Statute in this Article name a Writ of Mordanc and after writs of Cosinage c. yet a writ of Right a Formedon a writ of Entry ad Com. legem and all other like actions are within the purview of this Statute * 2 Where it is said in the said Act if the Tenant by the Curtesie alien yet his release with warranty to a disseisor c. is within the purview of the Statute for that it is in equall mischief 11 E. 2. gar 83. 4 E. 3. gar 63. Pl. Cam. 110. * 27 E. 3. 80. 14 E. 4. gar 5. and 4. M. Dy. 148. a. If Tenant by the Curtesie be of a Seigniory and the Tenancy escheat unto him and after he alien with warranty this shall not binde the issue unlesse assets descend for it is in equal mischief 22. Ass 9. 37. temps i.e. gar 86. Note a diversity between a warranty on the part of the Mother and an estoppel for an estoppel c. shall not binde the heir when he claimeth from the Father As if Lands be given to the husband and wife and to the heires of the husband the husband make a gift in Tail and dieth the wife recover in a Cui in vita against the donee supposing that she had fee simple and make a feoffment and dieth the donee dyeth without issue the issue of the husband and wife bring a Formedon in the Reverter against the Feoffee and notwithstanding he was heir to the Estoppel and the Mother was Estopped yet for that he claimed the Land as heir to his father he was not Estopped 18 E 3. 9. If a feme heire of a disseisor infeoffe me with warranty and marrieth with the disseisee if after the disseisee bring a Praecipe against me I shall rebut him in respect of the warranty of his wife and yet he demandeth the Land in another right and so if the husband and wife demand the right of the wife a warranty of the Collateral Ancestor of the husband shall barre 21. R. 2. judgement 263. By the Statute of 11 〈◊〉 7. c. 20. where the woman hath any estate for life of the inheritance or purchase of her husband or given to her by any of the Ancestors of the husband or by any other person seised to the use of her husband or of any of his Ancestors there her alienation release or confirmation with warranty shall not binde the heir l. 1. f. 176. l. 3. 50 51. 59. 60. 61. 62. Dy. 146. 362 D. St. 55 Pl. Com. 56. I will only adde two cases the one was A man seised of Lands in fee levyed a fine to the use of himself for life and after to the use of his wife and of the heirs males of her body by him begotten for her joynture and had issue male and after he and his wife levied a fine and suffered a Common recovery the husband and wife die and the issue male enter by force of the said Statute of 11 H. 7. and it was holden by the justices of Ass that the entry c. was lawful and yet this case is out of the letter of the Statute for she neither levied the Fine c. Being sole or with any other after taken husband but is by her self with her husband that made the joynture Sed qui haeret in littera haeret in Cortice this case being in the same mischief is therefore within the remedy of the Statute by the intendment of the makers of the same to avoid the disherison of heirs who were provided by the said joynture and especially by the husband himself that made the joynture M. 13. Jac. inter Harley and West in eject fir in Com. B. Linc. The other was A man is seised of Lands in the right of his wife and they two levy a Fine and the Conusee grant and render the Land to the husband and wife in especial taile the remainder to the right heirs of the wife they have issue the husband dyeth the wife taketh another husband and they two levy a Fine in Fee and the issue enter this is directly within the Letter of the Statute and yet is out of the meaning because the State of the Land moved from the wife so as it was the purchase of the Husband in Letter and not in meaning P. 17. El. in Com. B Lattons Case But where the woman is Tenant for life by the gift or conveyance of any other her alienation with warranty shall binde the heir at this day So if a man be Tenant for life otherwise than as Tenant per Curtesie and alien in fee with warranty and dyeth this shall at this day binde the heir that hath the reversion or remainder by the Common Law not holpen by any Statute But all this is to be understood unlesse the heir that hath the reversion or remainder doth avoid the estate so aliened in the life of the Ancestor for then the estate being avoided the warranty being annexed unto the estate is avoided also Sect. 725. As to the second clause of the Statute of Glocestor there are two points of Law to be observed 1. That by the expresse purview of the Statute if Assets do after descend from the Father then the Tenant shall have recovery or restitution of the lands of the Mother But in a Formedon if at the time of the warranty pleaded no Assets be descended whereby the Demandant recovereth if after the Assets descend there the Tenant shall have a Sc. fac for the Assets and not for the land intailed because that if in this case the Tenant should be restored to the land intailed then if the issue in Tail alienated the Assets his issue should recover in a Formedon Pl. Com. 110. a. l. 8. f. 53. Sims Case 2. Note That after Assets descended the recovery shall be by writ of Judgement viz. by Sc. fac which shall issue out of the Roll of the Justices c. to resummon him that ought to warrant c. Also if the Tenant will have benefit of the Statute he must plead the Warranty and acknowledge the Title of the Demandant and pray that the advantage of the Statute may be saved unto him and then if after Assets descend the Tenant upon this Record shall have a sc fac and if Assets descend but for part he shall have a scire fac for so much l. 8. fo 134. Mary Shipleys Case But if the Tenant plead the Warranty and Assets descended c. and the Demandant taketh issue that Assets not c.
unam possidere 19. H 6. 28. b. per Newton If a man hath issue two daughters Bastard eign and Mulier puisne and dye seised and they both enter generally the sole possession shall not be adjudged onely in the Mulier because they both claim by one and the same Title 17. E. 3. 59. 11. Ass p. 23. Barretor is a common mover and exciter or maintainer of suits quarrels or parts either in Courts or elsewhere in the Countrey l. 8. f 36. b. Case de Barretry fo 368. b. Extortion in his proper sense is a great misprision by wresting or unlawfully taking by any Officer by colour of his Office any money or thing valuable of or from any man qd non est debitum vel quod est ultra debit ' vel ante tempus quod est debitum Pl. Com. 64. l. 10. 10. 1. Beausages Case W 1. c. 26. c. W. 1. c. 10. 42 E. 3. 5. 27. Ass 14. Pl. Com. 68. Robbery is apparant and hath the face of a Crime but Extortion puts on the visure of Vertue for expedition of Justice c. and it is ever a companied with that grievous sin of Perjury Pl. Com. Dive and Mannings Case But largely Extortion is taken for any Oppression by extort power or by colour or pretence of Right and so Littleton taketh it in this place 7 E. 4. 21. Manutenentia signifies a taking in hand bearing up or upholding of quarrels and sides to the disturbance or hinderance of Common Right 1 E. 3. c. 14 20 E. 3. c. 4 5. By the Statute of 1 R. 2 c. 9. it is enacted That feoffments made for maintenance shall 〈◊〉 be holden for none and of no value so as Littleton putteth his case at the Common Law for he seemeth to allow the feoffment where he saith tiel feoffment fuit le cause c. But some have said That the feoffment is not void between the feoffer and the feoffee but to him that right hath Now since Littleton wrote there is a notable Statute 32 H. 8. c. 9. made in suppression of the causes of unlawfull maintenance The effect of which Statute is 1. That no person shall bargain buy sell or obtain any pretenced Rights or Titles 2. Or take promise grant or Covenant to have any Right or Title of any person in or to any lands c. but if such person which so shall bargain c. their Ancestors or they by whom he or they claim the same have been in possession of the same or of the reversion or remainder thereof or taken the * rents or profits thereof by the space of one whole year c. upon pain to forfeit the whole value of the lands c. and the buyer or taker c. knowing the same to forfeit also the value * Those words are but explanatory and put for example c. 3. Provided that it shall be lawfull for any person being in lawfull possession c. to obtain or get the pretenced Right or Title c. Nota That Title or Right may be pretenced two manner of wayes 1. When it is meerly in pretence or supposition and nothing in verity 2. When it is a good Right or Title in verity and made pretenced by the act of the party and both these are within the said Statute For example If A. be lawfull owner of land and is in possession B. that hath no right thereunto grant to A or contracteth for the land with another the grantor and the grantee albeit the grant be meerly void are within the danger of the Statute for B. hath no right at all but onely in pretence If A. be disseised in this case A. hath a good lawfull right yet if A. being out of possession grant to or contracteth for the land with another he hath made now his good right of Entry pretenced within the Statute and both the grantor and the grantee within the danger thereof A fortiori of a right of Action quod nota Pl. Com. 80 c. Partridges Case It is further to be known That a Right or Title may be considered three manner of wayes 1. As it is naked and without possession 2. When the absolute Right cometh by release or otherwise to a wrongfull possession and no third person hath either jus proprietatis or jus possessionis 3. When he hath a good right and a wrongfull possession As to the first somewhat hath been said As to the second taking the former example If A. be disseised and the disseisee release unto him he may presently sell grant or contract for the land and need not tarry a yeer for it is a rule upon this Statute that whosoever hath the absolute ownership of any Land tenements or haereditaments as in this case the disseisor hath there such owner may at his pleasure bargaine grant or contract for the land for no person can thereby be prejudiced or grieved 6 E. 6. Br. Maintenance 38. And so if a man Morgage his Land and after redeem the same or if a man recover land upon a former title or be remitted to an ancient right he may at any time bargaine c. As to the third if in the case aforesaid the disseisor dyeth seised and A. the disseisee enter and disseise the heir of the disseisor albeit he hath an ancient right yet seeing the possession is unlawfull if he bargaine or contract for the land before he hath been in possession by the space of a yeer he is within the danger of the Statute because the heir of the disseisor hath right to the possession and he is thereby grieved sic de similibus A Lease for yeers is within the Statute for the Statute saith not the right but any right and the offendor shall forfeit the whole value of the Land 23. Eliz Dy. 374. Pl. Com. Fo. 87. But yet if a man make a Lease for yeers to another to the intent to try the Title in an Eject fir that is out of the statute because it is in a kind of course of Law but if it be made to a great man or any other to sway or countenance the cause that is within this statute M. 30. and 31. El. 28. 11. inter Finch and Cocham in Com. Banc. Fo. 369. b. A Customary right or a pretence thereof to lands holden by Copie is within this statute l. 4. fo 26. Copihold case If there be Tenant for life the remainder in fee by lawfull and just title he in the remainder may obtain and get the pretenced right or title of any stranger not onely for that the particular estate and the remainder are all one but for that it is a mean to extinguish the seeds of troubles and suits and cannot be to the prejudice of any 34 H. 8. Dy. 52. And where the Statute saith being in lawfull possession by taking the yeerly rent c. those words are but explanatory and put for example for howsoever he be lawfully seised in possession
in this case of Littleton when one Coparcener entreth into the whole and maketh a Feoffment of the whole this devesteth the Freehold in Law out of the other Coparcener Item when the one sister enters into the whole the possession being void and maketh a feoffment in fee this act subsequent doth so explain the entry precedent into the whole that now by construction of Law she was onely seised of the whole and this feoffment can be no disseisin because the other sister was never seised nor any abatement because they both made but one heir to the Ancestor and one Freehold and inheritance descended to them so as in judgement of Law the Warranty doth not commence by disseisin or by abatement and without question her entry was no intrusion Pl. Com. 543. fo 374. a. Tenant in Tail hath issue two daughters and discontinue in fee the yongest disseiseth the discontinuee to the use of her self and her sister the discontinuee ousteth her against whom she recovereth in an Assize the eldest agreeth to the disseisin as she may against her sister and become joynt-tenant with her And thus is the book in the 21 Ass p. 19. to be intended the case being no other in effect But A. disseiseth one to the use of himself and B. B. agreeth by this he is joyntenant with A. Fol. 374. b. Nota in these two last Sections four several Conclusions 1. That a lineal Warranty doth binde the right of a fee simple 2. That a lineal warranty doth not binde the right of an estate Tail for that is restrained by the Statute of donis Cond 3. That a lineal Warranty and Assets is a bar of the right in Tail and is not restrained by the said Act. 4. That a collateral Warranty made by a collateral Ancestor of the donee doth binde the right of an estate Tail albeit there be no Assets and the reason thereof is upon the Statute of Donis Cond for that it is not made by the Tenant in tail c. as the lineal Warranty is 3 E. 3. 22. 4 E. 3. 28. 50. M. 38 E. 3. Cor. Rege Ab. de Colchest case 45 Ass 6. Pl. Com. 554. 19 E. 4. 10. Vide S 703 747. To this may be added That the Warranty of the Donee in Tail which is collateral to the Donor or to him in remainder being heir to him doth binde them without any Assets For though the alienation of the Donee after issue doth not bar the Donor which was the mischief provided for by the Act yet the Warranty being collateral doth bar both of them for the Act restraineth not that Warranty but it remaineth at the Common Law as Littleton after saith And in like manner the Warranty of the Donee doth barre him in remainder Note Assets requisite to make lineal Warranty a barre must have six qualities 1. It must be Assets i e. of equal value or more at the time of the discent 2. It must be of discent and not by purchase or gift 3. It must be Assets in fee simple and not in fee Tail or for another mans life 4. It must descend to him as heir to the same Ancestor that made the Warranty Brit. 185. 4. E. 3. garr 63. 16. E. 3. Ass 4. 43. E. 3. 9. 7. H. 6. 3. 11. H. 4. 20. 5. It must be of Lands or Tenements or Rents or Services valuable or other profits issuing out of Lands Tenements and not personall Inheritances as Annuities c. 6. It must be in state or interest and not in use or right of actions or right of entry for they are no Assets until they be brought into possession 24. E. 3. 47. But if a rent in fee simple issuing out of the Land of the heir descend unto him whereby it is extinct yet this is Assets and to this purpose hath in Judgement of Law a Continuance 31 E. 3. Ass 5. 13. E. 3. Recovery in value 17. l. 3. f. 31. Butler and Bakers Case A Seigniory in franck-Almoign is no Assets because it is not valuable and therefore not to be extended and so it seemeth of a Seigniory of Homage and Fealty 14. E. 3. Mesne 7. Regist 293. But an Advowson is Assets whereof Fleta l. 2. c. 65. saith Item de ecclesiis quae ad donationem Domini pertinent quot sunt quae ubi quantum valeat quaelibet Ecclesia per annum secundum veram ipsius aestimationem pro Marca solidus extendatur ut si ecclesia 100. Marcas valeat per annum ad 100. solidos extendatur advocatio per annum Brit. 185. 5. H. 7. 37. 32. H. 6. 21. 33. E. 3. garr 102. Sect. 714. Fol. 375. a. Nota that albeit in this case the issue in Tail must claim as heir of both their bodies yet the Warranty of either of them is lineal to the issue 35 E. 3. garr 73. If Lands be given to a man and a woman unmarried and the heirs of their two bodies and they intermarry and are disseised and the husband releaseth with Warranty the wife dieth the husband dyeth albeit the Donees did take by moities yet the Warranty is lineal for the whole because as our Author here saith the issue must in a Formedon convey to him the right as heir to the Father and his Mother of their two bodies ingendred and therefore it is collateral for no part Sect. 715 716 717. Nunquam nimis dicitur quod nunquam satis dicitur And here it appeareth That it is not adjudged in Law a collateral Warranty in respect of the bloud for the Warranty may be collateral albeit the bloud be lineal and the Warranty may be lineal albeit the bloud be collateral But it is in Law deemed a collateral Warranty in respect that he that maketh the Warranty is collateral to the Title of him upon whom the Warranty doth fall 8 R. 2. gar 101. vide Sect. 704. Sect. 718. Fo. 376. a. Every Warranty doth descend upon him that is heire to him that made the Warranty at the Common Law Vide Sect. 3. 603 735 736 737. Hereupon many things worthy to be known are to be understood 1. That if a man infeoff another of an acre of ground with Warranty and hath issue two Sons and dyeth seised of another acre of land of the nature of Borough English the feoffee is impleaded albeit the Warranty descendeth onely upon the eldest yet may he vouch them both the one as heir to the Warranty and the other as heir to the Land 40 E. 3. 14. So it is of heirs in Gavelkinde c. 22 E. 4. 10. And in like sort the heir at the Common Law and the heir of the part of the Mother shall be vouched 49 Ass 4. 38. E. 3. 22. But the heir at the Common Law may be vouched alone in both these cases at the election of the Tenant sic de similibus Also if a man dye seised of certain lands in fee having issue a Son and a daughter by one
by Littleton himselfe is to the contrary and that both the party and as some doe hold his Assignee shall vouch but he that is vouched in that case must be present in Court and ready to enter into the warranty and to answer and the Tenant must shew forth the Deed of Release or Confirmation with warranty to the intent the Demandant may have an answer thereunto and either deny the Deed or avoid it for that at the time of the Confirmation made he to whom it was made had nothing in the land c. for otherwise the Demandant may counter-plead the Voucher by the Statute of W. 1 cap. 40. viz. that neither Vouchee nor any of his Ancestors had any seisin whereof he might make a feoffment And this is grounded upon the said Statute of W. 1. Sil neit son gar en present que lun voile gar de son gree maintenant enter en respons otherwise the Tenant must be driven to Warrantia Cartae 11 H. 4. 22. 10 E. 3. 52. 21 E. 3. 37. Vide Sect. 706. 738. 745. Vide 20 E. 1. Stat. ad vocat ad Warr. But a warranty of it selfe cannot enlarge an estate as if the lessor by Deed release to his lessee for life and warrant the land to the lessee and his heirs yet doth not this enlarge the estate 22 Hen. 6. 15. 2 Hen. 4. 13. 43 Ed. 3. 17. 43 Ass 42. 12 Ass 17. 12 Ed. 3. Tail 3. 22 Ed. 4. 16. b. 44 Ed. 3. 10. 44 Ass Bassingborns Ass If a man make a feoffment in fee with Warranty to him his heirs and assigns by Deed as it must be and the feoffee infeoff another by paroll the second feoffee shall vouch or have a Warrantia Cartae as Assignee albeit he hath no Deed of the Assignment l. 3. 63. If a man infeoff two their heirs and assigns and one of them make a feoffment in fee that feoffee shall not vouch as Assignee 29 Edw. 3. 70. 17 Edw. 2. Joynd in action 1. 11 Edw. 4. 8. If a man make a feoffment in fee to A. his heirs and assigns A. infeoffeth B. in fee who re-infeoffâ—th A. He or his assigns shall never vouch for A. cannot be his own Assignee But if B. had infeoffed the heir of A. he may vouch as Assignee for the heir of A. may be Assignee to A. in as much as he claimeth not as heir Sect. 734. fol. 386. a. The Heir shall never be bound by any expresse warranty but where the Ancestor was bound by the same warranty 31 Ed. 1. gar 83. Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita regis tantum A fortiori in case of Warranty which is in the realty Fleta lib. 2. cap. 55. Brit. fol. 65. b. 11 Hen. 6. 48. But a Warranty in Law may binde the Heir although it never bound the Ancestor and may be created by a last Will and Testament As if a man devise lands to A. for life or in Tail reserving a rent the devisee for life or in Tail shall take advantage of this warranty in Law albeit the Ancestor was not bound and shall binde his heirs also to Warranty although they be not named Also an expresse Warranty cannot be created without Deed and a Will in writing is no Deed and therefore an expresse Warranty cannot be created by Will 18 Ed. 3. 8. Sect. 736. fol. 386. b. Note a diversity the lien reall as the Warranty doth ever descend to the heir at the Common Law but the lien personall doth binde the speciall heirs as all the heirs in Gavelkinde and the heir on the part of the Mother vide Sect. 603 718 737. 11 E. 3. 7. 11 Hen. 7. 12. If two men make a feoffment in fee with warranty and the one dyeth the feoffee cannot vouch the survivor onely but the heir of him that is dead also but otherwise if two joyntly binde themselves in an Obligation and the one die the survivor only shall be charged 17 E. 3. Joynt 41. 16 H. 7. 13. 29 E. 3. 46. 12 H. 7. 3. 22 E. 3. 1. 17 E. 3. 8. 30 E. 3. 43. 19 H. 6. 55. l. 3. f. 14. Mat. Herberts Case Two brothers by demy venters the eldest releaseth with warranty to the disseisor of the Uncle and dyeth without issue the Uncle dyeth the warranty is removed and the younger brother may enter into the Land Sect. 737. Sect. 738. fol. 387. A warranty may be limited and a man may warrant lands as well for term of life or in Tail as in fee 38 Ed. 3. 14. 16 E. 3. Vouch. 87. If Tenant in fee simple that hath a warranty for life either by an expresse Warranty or by Dedi be impleaded and vouch he shall recover a fee simple in value albeit his warranty were but for term for life because the warranty extended in that case to the whole estate of the feoffee in fee simple but in the case that Littleton here putteth the Tenant for life shall recover in value but an estate for life because the warranty doth extend to that estate onely vide Sect. 733. 706. And here in this Section is implyed that a collaterall Warranty giveth no right but shall barre onely for life and after the party is restored to his action Also note that a Warranty may descend to the heirs of him that made it during the life of another Sect. 739. Si un home lessa ses terres a un aut aver tenant a luy a ses heires pur terme dauter vie le lessee mor. vivant oâ—luy a que vie c. un estranger enter en la terre l'heire le lessee luy poit ouster c. The heir of the lessee shall have the Land to prevent an occupant and so it is in case of an annuity or of any other thing that lieth in grant whereof there can be no occupant 77 E. 3. 48. 18 E. 3. 12. 11 H. 4. 42. 7 H. 4. 46. 8 H. 4 15. Dyer 8 Eliz. 253. 18 H. 8. 3. 27 H. 8. 21 H. 8. Estat Br. 10. 19 E. 3. Account 56. 33 Ass p. 17. 22 H. 6. 33. 39 E. 3. 37. vide Sect. 387. Sect. 740. Chattels as well reall as personall shall goe to the Executor or Administrator 11 E. 3. tit Ass 88. 11. Ass 21. 10 Eliz. Dyer 276. But if the Kings Tenant by Knights service in Capite be seised of a Manour whereunto an Advowson is appendant and the Church become void the Tenant dyeth and his heir within age the King shall present to the Church and not the Executor or Administrator but if the Land be holden of a common person in that case the Executor shall present and not the Guardian 24 E. 3. 26. F.N.B. 33. b. 34. a. If a Bishop hath a Ward fallen and dyeth the King shall not have the Ward nor
person attainted of misprision of Treason Murther or Felony is dowable since our Author wrote by the Statute of 1 E. 6. cap. 13. 5 E. 6. cap. 11. 5 El. ca. 1. 11. 18 El. cap. 1. 12 H. 4. 3. Vide Sect. 55. So if a Seigniory be granted with warranty and the Tenancy escheat the Seigniory whereunto the warranty was annexed is extinct and consequently the warranty defeated and it shall not extend to the land sic in similibus 6 H. 4. 8. 45 E. 3. vouch 72. Pl. Com. 292. 16 E. 3. Age 46. 28 H. 3. vouch 281. 23 E. 3. garr 77. Vide Sect. 200. If a collaterall Auncestrel release with warranty and enter into Religion now the warranty doth binde but if after hee be deraigned now it is defeated Sect. 748. Fol. 393. Per release de touts manners de garr ou de touts covenants reall ou de touts demandes le garr est extinct Et mults auters cases matters y sont per queux home poit defeate garr c. As by a defeasance as other things executory may Also a warranty may lose his force by taking benefit of the same 43 E. 3. 17. Pl. Com. Brownings case In a Precipe the tenant voucheth and at the sequatur sub suo periculo the tenant and the vouchee make default whereupon the demandant hath judgement against the tenant and afterwards the demandant brings a Scire facias against the tenant to have execution In this case the Tenant may have a War Cartae And if in that case a stranger had brought a praecipe against the Tenant hee might have vouched again for by the judgement given against the Tenant the warranty lost not his force but if the Tenant had judgement to recover in value against the vouchee he should never vouch again by reason of that warranty because he had taken advantage of the warranty and it is to be observed that upon the processe of Summon ad warr if the Sheriffe return the vouchee summoned and he make default the Tenant shall have a Capias ad val but if he return that the vouchee had nothing then after the Sicut alias plures a seq sub suo periculo shall issue and there if the vouchee make default the Tenant shall not have judgement to recover in value for he was never summoned and it appeareth of Record that he hath nothing but in the Cap. ad Val. it appeareth that he had Assets and he had been summoned before But in some speciall cases there shall be two recoveries in value upon one warranty As if a disseisor give lands to the husband and wife and to the heirs of the husband the husband alieneth in fee with warranty and dieth the wife bringeth a Cui in vita the Tenant vouch and recover in value if after the death of the wife the disseisee bring a praecipe against the Alienee he shall vouch and recover in value again So it is where the wife bringing a Writ of Dower against the Alienee he shall recover in value and after her death hee shall recover in value again upon the same warranty 45 E. 3. vouch 72. In the same manner it is if a man be seised of a rent by a defeasible title and release to the Tenant of the Land all his right in the Land and warrant the Land to him and his heirs if he be impleaded for the rent he shall vouch and recover in value for the rent and if after he be impleaded for the Land he shall vouch c. again for the Land But in these and the like cases the reason is in respect of the severall Estates recovered but for one and the same estate he shall never recover but once in value and though the Land recovered in value be evicted yet he shall never take benefit of that warranty after and as warranty may be defeated in the whole so they may be defeated as to the party of the benefit that may be taken of the same As he that maketh a warranty may make a defeasance not to take any benefit by way of voucher In the like manner that he shall take no advantage by way of Warrantia Cartae or by way of Rebutter 7 H. 6. 43. 13 Ass 8. 13 E. 3. gar 24 25. 3. 7. 22 H. 6. 51. 8 H. 7. 6. Sect. 749. If Tenant in Tail alien with warranty and leave Assets to discend if the issue in Tail doth alien the Assets and die the issue of that issue shall recover the Land because the lineall warranty descends onely to him without Assets for neither the pleading of the warranty without Assets nor Assets without warranty is any barre in the Formedon in the descender But if the issue to whom the warranty and Assets descended had brought a Formedon and by judgement had been barred by reason of the warranty and Assets In that case albeit he alieneth the Assets yet the estate Tail is barred for ever for a barre in a Formedon in the descender which is a Writ of the highest nature that an issue in Tail can have is a good barre in any other Formedon in the descender brought afterwards upon the same gift Temps E. 1. gar 89. 34 E. 1. ib. 88. 11 E. 2. ib. 3. 4 E. 3. 24. 5 E. 3. 14. 40 E. 3. 9. 14 H. 4. 39. 24 H. 8. a. Br. 33. 4. M. Dy. 139. l. 10 37 38. Mary Portingtons case Epilogus Nulla virtus nulla scientia locum suum dignitatem conservare potest sine modestia Ratio est anima legis If by study and industry we make not the reason of the Law our own it is not possible for us to retain it in our memories And we must couple arguments and reasons together Quia Argumenta ignota obscura ad lucem rationis proferiaâ—â— reddunt splendida Sir Richard Hankford 11 H. 4. 37. Home ne scavera de quel mettal un campane est sine soit bien bate ne le ley bien conus sans disputation Jeo aye disputir cest matter pur la apprender la ley 41 E. 3. 22. Kirton Vide Sect. 377. Lex plus laudatur quando ratione probatur Lex est sanctio sancta jubens honesta prohibens contraria Vide cest definitio Lib. 1. fo 131. Chudleighs Case Al unique Dieu gloire FINIS An Alphabetical Table A ALien may purchase what and how p. 2 Attainder how it corrupteth the blood 7 Arguments legal 11 Arguments from Statutes ib. Advocatio what 15 123 Advocatio medietatis ib. Armories how descendable 20 Authority with interest or without the difference 63 Attorney to deliver seisin ib. Accessaries where 67 Ages their several purposes in the Law 95 Agreement and Disagreement the time for the confirming Matrimony the equal Obligation 96 Agriculture its commendation 98 Actus Legis 100 Aetas Legitima 101 Alienatio restricta 106 Acquittal quotuplex 107 Appendant and Appurtenant their differences 125 126 Alienee plead where
PRVDENS QVI PATIENS Juris prudentium eloquentissimus et Eloquentium Juris prudentissimus AN ABRIDGEMENT OF The Lord COKE'S COMMENTARY on LITTLETON Collected by an unknown Author yet by a late Edition pretended to be Sir Humphrey Davenports Kt. AND In this Second Impression purged from very many gross ERRORS committed in the said former Edition With a TABLE of the most remarkable things therein LONDON Printed for W. Lee D. Pakeman and G. Bedell 1651. To the READER Courteous Reader THis little Book was lately sent abroad with many grosse Errours as an Abridgement of the Lord Cokes Comment on Littleton under the Name of Sr Humphrey Davenport Kt long since deceased though indeed many very materiall things in the Lord Cokes Comment is not in the late Edition or Abridgement at all hinted or mentioned If thou art curious to understand the Law bee pleased to consult the large Volume which is an exact learned Work and curiously corrected and approved by all learned in the Common Laws but if thy leasure for the present will not permit thee to read that learned Work at large know that thou mayest for Twelve-pence have this Compendium and be welcome to the carefull Publishers hereof who desire thy benefit and the publike good W. Lee. D. Pakeman G. Bedell From our Shops in Fleetstreet Nov. 24. 1651. Munday The true portraiture of Iudg Littleton the famous English Lawyer CAP. I. De Feodo Simplici FEodum simplex idem est quod haereditas legitima vel pura Tenant in fee simp 1. He hath the estate in the land 2. He holdeth the land of some superior Lord. 3. He is to perform the services due and 4. Hee is thereunto bounden 5. By Doom and judgement Praedium domini regis est directum dominium cujus nullus Author est nisi Deus Subjectus habet utile dominium Bract. l. 1. c. 8 Fee ex feif i praedium beneficiarum Fee divided into 3 parts viz. simple or absolute conditional qualified or base Bract. 263. 207. Pl. Com. Walsing c. Di. 252 253. Fee signifies that the land belongs to us and our heirs and in this sense the King is said to be seised in fee. It is also taken as it is holden of another by service and that only belongeth to the subject Brit. 205. 207. Item dicitur feodum alio modo ejus qui alium feoffat quod quis tenet ab alio ut sit qui dicat talis tenet de me tot feoda per servitium militare and Fleta saith poterit unus tenere in feodo quoad servitia sicut dominus Capitalis non in dominico alius in feodo dominico non in servitio sicut libere tenens alicujus and therefore if a stranger claim a Seigniory and distrain and a vow for the service the Tenant may plead that the Tenancy is extra feodum c. Of him that is out of the surrendry or not holden of him that claimeth it but he cannot plead hors de son fee unlesse he take the Tenancy that is the State of the land upon him 2 Ass p. 4. 12 Ass 38. 12 E. 3. tit hors de son fee 28. i. b. ignoratis terminis ignoratur ars Si un annuitie soit grant al home à ses heirs ceo est fee simple personal Simplex idem est quod purum purum dicitur quod est merum solum sine additione Simplex donatio pura est ubi nulla addita est conditio sive modus simplex enim datur quod nullo additamento datur every fee is not legitimate for a disseisor abator intruder usurper c. hath a fee but not a lawful fee fo 2. a. Si un alien purchase treÌ„s c. Le roy sur office trove eux aura home attaint de felony and capacity de purchaser sinon pur le benefit del roy Dier 283. An Alien Merchant whose King is in league with ours may take a lease for years of a hous for habitation as incident to commercery and as necessary to his trade and tratfique but not for the benefit of his Executors or Administrators for if he die possessed of the lease or relinquish the Realm the King shall have it 5 Mar Br. tit-denizen 22. If a man commit felony and after purchase lands and is attaint the Lord of the fee shall have the Escheat 49 Ass p 2. 49 E. 3. 11. If any sole corporation or aggregate of many religiosus vel alius ecclesiastical or temporal purchase Lands in fee without licence they cannot retain for if the mesn Lords make default and do not enter c. the King shall have the Lands c. 7 E. 1. De Relig. per alienation in Mortmain les Seignors perdont lour escheats and in effect the service de chivaler per defence del royalm ward marriage relief c. Et pur ceo fut dit mortmain quod rend nul service Stat. delig 7 E. 1. per quod quae servitia ex hujusmodi feodis debentur quae ad defensionem regni ob initio provisa fuerunt indebite subtrahuntur capitales domini eschaet suas ammittunt M. Ch. c. 36. Praelatus ecclesiae suae conditionem meliorare potest deteriorare nequit Est enim eccle ejusdem conditionis quae fungitur vice minoris Sed nullum simile quatuor pedibus currit 2. b. Brac. l. 2. f. 12. 32 Si feme covert purchase Lands c. Le baron poit disagreer devest tout lestate but albeit her husband agreed thereunto after his death she may wave the same and so may her heires also if she her selfe agreed not c. After the decease of her husband The Queen is an exempt person by the common law from the King and may purchase and grant c. Vxor is a good name of purchase without a Christen name and so it is if a Christen name be added and mistaken Vâ—ile enim per inutile non vitidtur 1. H. 5. 8. Purchases are good in many cases by a known name or by a certain description of the person without either surname or name of Baptisme as uxor I S or primogenite filio I.S. or rect hered I. S. But regularly in writs the demandant or plaintiff is to be named by his Christen name surname unlesse it be the case of some corporations or bodis politique 3. a. 8. E 3. 437. qui ex damnato coitu nascuntur inter liberos non computentur Bastardus est quasi nullius filius A man makes a Lease for life to B. the remainder to the eldest issue male to be begotten of the body of Jane S. whether the same issue be legitimate or illegitimate B. hath issue a bastard on the body of I. S. this Son or issue shall not take the remainder because in Law he is not his issue M. 38. 39. el. in bre de err A Bastard may purchase by his reputed name to him and his heires
although he can have no heire but of his body 39. E. 3. 11. 24. 17. E. 3. 42. 35. As 13. 41. E. 3. 19 An office which concernes the benefit or safety of the commonwealth c. granted to a man which is unexpert and hath no skill or science to exercise or execute the same the grant is merely void and the party disabled by law to take the same pro commodo regis populi Dier 150. An infant or minor is not capable of an office of Stewardship of the Court of a Mannor either in possession or reversion No man though neven so skilful c. Is capable of a judiciall office in reversion but must expect untill it fall in Possession l. 11. 2. Sect. 378. The King is capable of an office not to use but to grant A purchase is c. when one cometh to lands by conveiance or title and not by tort as by disseisin c. Note that purchasers of lands tenants leases and hereditaments for good and valuable consideration shall avoid all former fraudulent and convin conveiance estates grants charges and limit of uses of or out of the same Stat. 27 El. cap. 4. 3. b. 13 El c. 5. l. 3. 80. Twines c. States of inheritances of lands are either certain or unmoveable whereof Littl. here speaketh or incertain and moveable as if partition be made between two Co-partners of one and the self same land that the one shall have it the first year and the other the second year alternis vicibus c. 4. 2. l. 1. 87. F. N. B. 62. Between pastura pascuum the legal difference is this that pastura in one signification containeth the ground it selfe called pasture and by that name is to be demanded Pascuum is wheresoever cattel are fed of what nature soever the ground is and cannot be demanded in a praecipe by that name 4. b. many things may pass by a name that by the same name cannot be demanded by a praecipe for that doth require a more perscript form but whatsoever may be demanded by a praecipe may pass by the same name by way of grant Ibid. 5. b. If the feoffor be bound to warranty and so to render in value then is the defence of the title at his peril and therefore the Feoffee in that case shall have no deeds that comprehend warranty whereof the Feoffor may take advantage Also he shall have such charters as may serve him to deraign the warranty paramount but other evidences which concern the possession and not the title of the land the Feoffee shall have them 6. a. l. 1. 1. 2. There have been eight formal or orderly parts of a deed of feoffment viz. 1. The premises 2. Habendum 3. Tenendum 4. Reddend 5. The clause of warrant 6. The in cujus rei testimonium sigillum c. 7. The date 8. The clause of his testibus The office of the premise of the deed is twofold 1. Rightly to name the feoffor and the feoffee and 2. to comprehend the certainty of the lands to be conveied c. Either by express words or which may by reference be reduced to a certainty for certum est quod cert reddi potest c. Vide libr. The Seal is of the essential part of the deed The date many times antiquity omitted for that the limitation of prescript or time of memory did often in processe of time change and the law was then holden that a deed bearing date before the limited time of prescript was not pleadable and therefore they made their deeds without date to the end they might alledge them within the time of prescription The date was commonly added in the Reign of Ed. 2. 3. 6. a. quae sunt minoris culpae sunt majoris infamiae Reg. he that loseth liberam legem becometh infamous and can be no witness As if a Champion in a writ of right become recreant or coward But oftentimes a man may be challenged to be of a Jury that cannot be challenged to be a witness and therefore though the witness be of the nearest alliance or kinred or of counsel or tenant or servant to either party or any other exception that maketh him not infamous or to want understanding or discretion or a party in interest though it be proved true shall not exclude the witness to be sworn 22 Ass 12. 41. If a witnesse be outlawed in a personal act hee cannot be joyned to the Jury but yet that is no exception against him to exclude him to be sworn as a witnesse to the Jury for that he with others should join in verdict with the Jury in affirmance of the deed the party should be barred of his attaint because there is more then twelve that affirm the verdict But note there must be more then one witnesse that shall be joyned to the enquest Inst 6. b. Max. Witnesses cannot testifie a negative but an affirmative when a trial is by witnesses the affirmative ought to be proved by two or three witnesses as to prove a summons of the Tenant or the challenge of a Juror c. But when the trial is by verdict of 12 men there judgement is not given upon witnesses c. but upon the verdict c. Probatio duplex viva sc per testes mortua par chartas c. presumptio triplex 1. Violenta 2. Probabilis 3. Levis seu temeraria Many time Juries together with other matters are much induced by presumptions In case of a Charter of feoffment if all the witnesses be dead c. Then violent presumption which stands for a proof is continual and quiet possession for ex diuturnitate temporis omnia praesumuntur solenniter esse acta Also the deed may receive credit per collationem sigillorum scripturae c. Glan l. 10. c. 12. A wife cannot be produced either against or for her husband quia sunt duae animae in carne una In some cases women are by law wholly excluded to bear testimony as to prove a man to be a Villain Mulieres ad probationem Status hominis admitti non debent Fleta l. 2. c. 44. In an information upon the statute of usury the party to the usurious contract shall not be admitted to bee a witnesse against the usurper for in effect he should be testis in propria causa and should avoid his own bonds c. Smiths case T. 8. J. in C.B. Brit. 134. He that challengeth a right in the thing in demand cannot be a witness for that he is a party in interest Britton fol. 134. 6. b. Tenementum is a large word not only to passe lands and other inheritances which are holden but also offices rents commons profits apprehender out of lands c. wherein a man hath any franktenement and whereof he is seised ut de libero tenemento But haereditamentum is the largest word of all in that kind for whatsoever may be inherited is an haereditamentum be it corporeal or
him and his heirs 1. By Feoffment 2 By Grant 3. By Fine which is a Feoffment of Record 4. By common recovery in nature of a Feoffment of recovery 5. By Exchange 6. By Release to a particular Tenant 7. By confirmation c. which are in nature of Grants c. 9. By bargain and sale by Deed c. Ordained by Statute 10. By devise by custome of some particular place and by Will in Writing generally by authority of Parliament 27 H. 8. ca. 16. 32 H. 8. ca. 2. 34 H. 8. cap. 5. If a disseisin abatement or intrusion be made to the use of another if cesty que use agreeth thereunto in pays by this bare agreement he gaineth a Fee Simple without any livery of seisin c. Sect. 2. Linea recta semper praefertur transversali Proximus excludit propinquum propinquus remotū remotus remotiorem fol. 10. b. Proximum Sumitur duplici sc Jure propinquitatis and he that is thus next c. is mediately inheritable Jure representationis and so one is immediately inheritable and accounted in Law next of bloud A Lease for life is made to A. the remainder to his next of bloud in this case he that is next of bloud and capable by purchase shall have the remainder though he be not legally next to take as heir by discent note the diversity Sect. 3. Maxime so called quia maxima est ejus dignitas certissima autoritas atque quod maximè omnibus probetur Pl. com 27 Lineal ascent is prohibited by the law but not Collateral c. fo 11. a. Littletons proofs and arguments drawn from the common law are first from the maxims rules intendment and reason of the common law 2. Ab autoritate pronūciatis 3. A rescriptis valet argumentum 4. From the form of good pleading 5. From the right entry of judgments 6. A praecedentibus approbatis usu 7. A non usu 8. Ab artificialibus argumentis consequentibus conclusionibus 9. A communi opinione jurisprudentium 10. Ab inconvenienti 11. A divisione vel ab enumeratione partium 12. A Majore ad minus à minore ad majus à simili à pari 13. Ab impossibili 14. A fine 15. Ab utili vel inutili 16. Ex absurdo 17. A natura ordine naturae 18. Ab ordine religionis 19. A communi praesumptione 20. A lectionibus jurisprudentium From Statutes his Arguments and proofs are drawn 1. From the rehearsal or preamble of the Statute 2. By the body of the law diversly interpreted sometimes by other parts of the same statute which is benedicta expositio ex visceribus causae Sometime by reason of the common Law But ever the general words are to be intended of a lawful act and such interpretation must ever be made of all statutes that the innocent may not be damnified c. fol. 11. b. There be divers laws in England As first lex Coronae 2. Lex consuetudo Parliamenti 3. Lex naturae 4. Lex communis Angliae 5. Statute Law 6. Consuetudines 7. Jus belli in republica maximè conservanda sunt jura belli 8. Ecclesiastical or Canon Law in Courts in certain cases 9. Civil Law in certain cases only in Courts Ecclesiastical but in the Courts of the Constable and Marshal and of the Admiralty 10. Lex Forestae 11. The Law of Marque or Reprisal 12. Lex Mercatoria 13. The Laws and Customs of the Isles of Jersey Gernsey and Man 14. The Law and priviledge of the Stannery 15. The Laws of the East West and middle Marches which are now abrogated A man that claimeth as heir in fee simple to any man by discent must make himself heir to him that was last seised of the actual freehold and inheritance where the unckle cannot get an actual possession by entry or otherwise there the Father cannot inherit c. Warranties shall descend to him that is heir at the common law Fol. 12. a. And a warranty shall not go with Tenements whereunto it is annexed to any special heir but to the heir at the common law Sect. 4. None shall inherit any lands as heir but only the bloud of the first purchaser Plow 447. refert à quo fiat perquisitum Fleta l. 6. c. 1. 2. Bract. l. 2. fo 65. 67. Multa transeunt cū versitate quae par se non transeunt vid. libr. fo 12. b. 5 E. 2. Avowry 207. Whensoever lands do descend from the part of the Mother the heirs of the part of the Father shall never inherit è converso 39 E. 3. 29. fol. 13. a. Escheat i.e. cadere excidere vel accidere quod accidit duobus modis aut perfectū sanguinis aut per delictū tenentis atque illud est Per judicium 〈◊〉 modis aut quia suspensus per collū aut quia abjuravit regnū aut quia utlegatus In an appeal of death c. hanging the Process the defendant conveyeth away the land after is outlawed the conveiance is good shall defeat the Lord of his escheat but otherwise is it if a man be indicted of felony c. for in the case of Appeal the Writ containeth no time when the felony was done and therefore an escheat can relate but to the outlawry pronounced but the indictment containeth the Time when the Felony was committed and therefore the escheat upon the outlawry shall relate to that time If lands holden of I. S. be given to a Dean and Chapter Major and Commonalty and to Their successors c. And after such body politick or incorporat is dissolved the donor shall have again the Land for that the cause of the gift or grant faileth and not the Lord by Escheat But no such condition is annexed to the estate in see simple vested in any man in his natural capacity but in case where the donor or feoffor reserveth to him a tenure and then the law doth imply a condition in law by way of escheat fol. 13. b. Sect. 5. Descent is a means whereby one doth derive him title to certain lands as heir to some of his Ancestors Quod prius est dignius est qui prior est tempore potior est jure Sect. 6. Nul aūa trē de fee simp per discent come heir c. Si non que il soit heir dentier sanke The half bloud is no bloud inheritable by descent being not compleat and perfect Fol. 14. a. Sect. 8. Lands c. shall descend to him that can make himself heir to him that was last actually seised of the Freehold of the land c. Fol. 15. a. Whether the seisin of a rent reserv'd upon a seise for life be such an actual seisin of the land in the eldest son as the sister in a writ of right may make her self heir of this land to her brother admitting there be son and daughter by one venter and a son by another venter Vid. lib. Qu. 7 H.
17. Four things be incident to a frank-marriage 1. That it be given for consideration of mariage c. 2. that the woman or man that is the cause of the gift be of the bloud of the donor 3. If the gift be made of a thing which lyeth in tenure as of Lands c. A rent Common c. That the donees hold of the donor at the time of the Estate in frankmarriage made 4. That the donees shall hold freely of the donor till the fourth degree be past fo 21 b. * These words in liberum maritagium did create an estate in fee simple at the common law And these are such words of art so necessarily required as they cannot be expressed by words aequipollent c. Sect. 18. * Feodum talliatum i.e. haereditas in quandam certitudinem limitata viz. Quel issue inheritra per force de tiels dones come longement lenheritance endurera A gift made to a man haeredi masculo de corpore suo Reg. Judic fol. 6. Haeredi unide corpore c. An exception from the rule that all estates Tail were fee simple at the common law 39 Ass pl. 20. Sect. 19. * Whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasors fol. 22. b. Vide Libr. Non est haeres viventis And no diversity when the law creates the estate for life and when the party A man seised of lands in fee by Indenture makes a Lease for life the remainder to the heires male of his own body this is a void remainder So it is of a gift intaile the remainder to his own right heires for the reversion is in the Ancestor who during his life beareth in his body all his heires And the donor cannot make his own right heire a purchaser of an estate taile without departing of the whole Fee simple out of him Vide Libr. Dier 156. If a man make a Feoffment in Fee to the use of himselfe in tail and after to the use of the Feoffe in Fee the Feoffee hath no reversion but in nature of a remainder albeit the Feoffor have the Estate taile executed in him by the Statute and the Feoffee is in by the common law Dier 362. b. Whosoever is seised of Land hath not only the estate of the land in him but the right to take profits which is in nature of the use therefore when he makes a Feoffment in Fee without valuable consideration to divers particular uses so much of the use as he disposeth not is in him as his ancient use in point of reverter Fol. 23. a. Vide Libr. Dier 12. Fealty is incident to every tenure exc frankalm and cannot be separated from it Sect. 20. Certain Rules touching degrees c The first is That a person added to a person in the line of consanguinity maketh a degree 2. So as how many persons there be take away one and you have the number of degrees 3. It is to be noted that in every line the person must be reckoned from whom the computation is made Vide Libr. gradus dicitur à gradiendo quia gradiendo ascenditur descenditur Fol. 24. a. Vide c. Sect. 21. Exempla illustrant non restringunt legem Aequitas est convenientia rerum quae cuncta coaequiparat quae in paribus rationibus paria jura judicia desiderat jus respicit aequitatem Aequitas enim est perfecta quaedam ratio quae jus scriptum interpretatur emendat Bract. lib. 4. Fo. 186. Sect. 22 23. De dones fait en le tail la volunt del donor seÌ„r observe And these words queux doient inheriter imply a diversity between a discent and a purchase Fol. 24. b. Vide libr. Br. t. done 42. t. nosme 1. 40. A gift is made to a man and to the heirs female of his body the donee is capable by purchase and the heir female by discent Fo. 25. a. Sect. 24. Quaecunque que ser inheriter per force d'un done en le tail fait as heirs males covient conveier son title tout per les heir males Fol. 25. a. Vide 28 H. 6. t. devise c. 18. 1. * A devise may create an inheritance by other words then a gift can yet cannot a devise direct an inheritance to descend against the rule of law Vide lib. In an Estate Tail c. The male must make his conveiance by males and the female by females If A hath issue a son and a daughter and dieth and the son hath issue a daughter and dieth and a Lease for life is made the remainder to the heirs females of the body of A. In this Case the daughter of A shall not take becaus she is not heir But albeit the daughter of the son maketh her conveiance by a male male she shall take an Estate Tail by purchase for she is heir and a female Fol. 25. b. 11 H. 6. 13. 9 H. 6. 25. Sect. 25. No cross remainder or other possibility shall be allowed by Law where an Estate is once setled c. and taketh effect As if Lands be given to two husbands and their wives and to the heirs of their bodies begotten they have a joint estate for life and several inheritances 24 E. 3. 29. a. Sect. 29. 30. 20 H. 6. 36. Vide lib. * 5 H. 4. 3. a. Fol. 26. b. A man by Deed gave lands to Em. late wife of I.M. habend c. praedict E. haered I. M de corpore ejusdem E. procreat In this case the son and heir of I.M. begotten on the body of Em took no Estate with Em. in the lands because he was named after the habendum A man seised of two acres of land in fee simple hath issue two daughters and dieth and the one coparcenor giveth her part to her sister and to the heirs of the body of her father In this case the donee hath an estate tail in the moity of the donors part for the donâ—â— is not entire heir but the donor is heir with the donee and she cannot give to the heirs of her own body and the donâ—â— hath the other moity of her sisters part for life Les heirs ses heirs differ For if lands be given to the son and to his heirs of the body of his father the son hath a fee simple But if the land be given to the son and to the heirs of the body of c. eÌ„ est ta f. 27. a. Sect. 31. Every estate tail within the statute of Westm 2. must be limited either by expresse words or words aequipollent of what body the heir inheritable shall issue The grant of a subject shall be taken most strongly against himself * Fo. 27. b. Vide libr. 18 Ass p. 5. Armories are descendible to the heirs males lineal or collateral CAP. III. Sect. 32. TEnant in Tail after possibility of issue extinct hath certain
priviledges in respect of the privity of his estate of the inheritance that was once in him which Tenant in Tail himself hath and which Lessee for life hath not As 1. He is dispunishable for wast 2. He shall not be compelled to atturn 3. He shall not have aid of him in the reversion 4. UpoÌ„ his alienatioÌ„ no writ of entry in consimili casu lieth 5. After his death no writ of intrusion doth lie 6. He may joyn the mise in a writ of Right in a special manner 7. In a praecipe brought by him he shall not name himself Tenant for life 8. In a Praecipe brought against him he shall not be named barely Tenant for life fo 27. b. And yet he hath four other qualities agreeable to a bare Lessee for life and not to an Estate in Tail 1. If he make a Feoffment in fee this is a forfeiture of his estate 2. If an estate in fee or in fee tail in reversion or remainder descend or come to this Tenant his estate is drowned and the fee or fee tail executed 3. He in the reversion or remainder shall be received upon his default 4. An exchange between a bare Tenant for life and him is good for their estates in respect of their quantity are equal so as the difference stands onely in the quality The state of this Tenant must be created altered c. by the act of God and not by the limitation of the party ex dispositione legis non ex provisione hominis Vide Sect. 33. fol. 28. a. l. 11. Lewes Bowles CAP. IV. Curtesie D'engleterre Sect. 35. A Man seised of an advowson or rent in fee hath issue a daughter who is married and hath issue and dieth seised the wife before the rent became due or the Church void dieth she had but a seisin in law and yet he shall be Tenant by the curtesie because he could by no industry attain to any other seisin Et impotentia excusat legem But if the wife in this case dye before her entry into lands c. it is otherwise Vide lib. fo 29. a. Dier 55. 3 H. 7. 5. A man shal not be tenant by the curtesie of a bare right title use or of a reversion or remainder exâ—ectant upon any Estate of Freehold unless the particular Estate be determined during the coverture * If an estate of freehold in Seigniories Rents Commons c. be suspended a man shall not be Tenant by the curtesie As if a Tenant make a Lease for life of the Tenancy to the Seignioress who taketh a husband hath issue the wife dieth he shal not be tenant c. But if the suspension be for years he shall be Tenant by the curtesie fo 29. b. Vide li. 1 E. 3. 6. If a woman maketh a gift in Tail and reserve a rent to her and her heirs and the donor taketh husband and hath issue and the donee dieth without issue and the wife dieth the husband shal not be tenant by the curtesie of the rent for that the rent newly reserved is by the act of God determined no Estate thereof remaineth But if a man be seised in fee of a rent and maketh a gift in Tail general to a woman she taketh husband and hath issue the issue dieth the wife dieth without issue he shall be Tenant by the Curtesie of the rent because the rent remaineth fol. 30. a. Four things do belong to an Estate of Tenancy by the Curtesie viz. Marriage seisin of the wife issue and death of the wife But it is not requisite that these should concur c. at one time and therefore if a man taketh a woman seised of lands in fee and is disseised and then hath issue and the wife die he shall enter and hold by the curtesie So if he hath issue which dieth before the discent c. Vide lib. By the custom of Gavelkind a man may be Tenant by the curtesie without having any issue 9 E. 3. 38. If after issue c. in this case the husband maketh a feoffment in fee and the wife dieth the feoffee shall hold it during the life of the husband the heir of the wife shall not during his life in sur cui in vita for it could not be a forfeiture for that the estate at the time of the feoffment was an Estate of Tenancy by the Curtesie initiate and not consummate Vod l. Dier 363. 34 E. 3. Cui in vita 13. In divers Cases a man shall by having of issue be Tenant by the Curtesie where a woman shall not be endowed c. 7 E. 3. 6. 17 Ed. 3. 51. A man shall be Tenant by the Courtesie of a Common Sans nomber but a woman shall not be endowed thereof A man entitled to be Tenant by the Courtesie maketh a feofment in Fee upon condition and entreth for the condition broken and then his wife dieth he shall not be Tenant c. for his title c. was inclusively absolutely extinct by the Feoffment * Vide librum fo 30. b. Trs sona done al Beron feme a les heireo que le baron ingenera de corps sa feme en ceo case ambideux ont estate en la T I le pur ceo que ceÌ„ parol heires nest limit a lun plius que a lautre Lect. 28. Nul poit eÌ„re Tenant in taile appears possibility d'issue extinct forsque un des donees ou le donee en special taile ne un ques serra punie de wast pur lenheritance que fuit lun foits en luy Mes cesty en le reversion poit enter sil alien en fee. Sect. 36 Baron prist feme enheritrix Sil ad issue per luy ne vife il scera Tenant per le Curtesie I trust me was even now so full of my Courtesie that I had almost forgotten my craft in the taile wot you what I mean why the two last precedent Sections * If any before stay behind I le bring them after with a witnesse Thomas More Thomas de la More Antecessor meus miles creatus fuit in Parliamento cum Edwardus Princeps ille niger dux cornubiae creatus fuerit Anno Regni Reg. Edwardi tertii vndecimo Anno Dom. 1337. CAP. IV. Dower Sect. 36. LA feme serra endowe de la 3. part des treÌ„s c. que sueront a sa baron durant le coverture issint que el passe l' ago de 9. ans al temps del mort sa baron lib. 2. fol. 93. Binghams Case Dower in the common Law is taken for that portion c. which the wife hath for term of her life of the lands or tenements of her husbands c. Propter onus matrimonii ad sustentationem suiipsius educationem liberorum cum fuerint procreati si vir praemoriatur Dos ex donatione est quasi donarium because the law it self doth without any gift of the husband himself give it
Consensus tollit errorem fol. 37. a. Sect. 43. Lou le certainty appiert queux terres c. Feme avera per la Dower la le feme entra apres la mort sa baron sans assignment de nulluy Sect. 45. The wife shall not be endowed of lands c. which her husband holdeth jointly with another at the time of c. Of his death for the jointenant which surviveth claimeth the land by the feoffment and by the survivorship which is above the Title of Dower c. But Tenants in common have several freeholds and inheritances and their moities shall descend to their several heirs and therefore their wives shall be endowed fol. 37. b. Sect. 46. Lissue en le Tail poit enter sur la possession la feme endowe ad ost eccles apres la mort sa baron The husband is seised c. being within age he cannot by a voluntary Act bind himselfe but otherwise is it where he doth an act whereunto he is compelled by Law Fo. 38. a. And so an Infant cannot endow his wife aed osti eccl but he may endow her ex Ass patris because the Father is sole seised c. And the Son hath nothing c. Sect. 48. Guardian in chivalry c. Is not possessed of the Land untill he doth enter because it is permanent of the wardship of the body he is possessed before seisure because it is transitory After the guardian hath entred c. A Writ of Dower lieth against him and not against the heire who is Tenant of the Freehold because the Law hath trusted him to plead for the heire within age that is in his custody and also for his own particular interest c. Fo. 38. b. Vide quaere 44. E. 3. 13. 4. H. 6. 11. If the heire before the gardein enter endow the wife of more than she ought and the gardein assigne over his Estate his Assignee shall have no Writ of Admesurement because it was a thing in action But the gardein himselfe shall have a Writ c. Stat. West 2. ca. 7. And so shall the heire have a Writ c. At full age and some have said that in that case he may have it within age Fo. 39. a Vide c. F.N.B. 149. Judicium quasi juris dictum the very voyce of Law and right and therefore judicium semper pro veritate accipitur In every judgement there ought to be three persons actor reus judex Fo. 39. a. The common Law giveth this priviledge to the Land holden by Knights service viz. That it shall not be dismembred but the whole Dower taken of the Lands holden in Socage for that the Knights service is for the defence of the Realm which is pro bono publico and therefore to be favoured Sect. 49. Sect. 50. Lou le judgment est fait en Court le roy ou en aut Court c. le feme poit perender ses vicines en lour presence endow luy inper metes bounds de la pluis beale c. que el ad come gardein en socage cei eÌ„ solvaÌ„on del Gardein en Chivelry durant le nonage lenfant Lect. 52. If a man taketh a wife seised of Lands c. In Fee hath issue and after the wife is attainted of Felony so as the issâ—â— cannot inherit to her yet he shall be Tenant by the Curtesie in respect of the issue which he had before the Felony and which by possibility might then have inherited But if the wife had been attainted of Felony before the issue albeit he hath issue afterwards he shall not be Tenant c. Fo. 40. a. Except the wife be actually seised the heire shall not make himselfe heire to the wife and this is the reason that a man shall not be Tenant by the Curtesie of a seisin in Law Lib. 8 fo 34. in Paines Case Sect. 53. Si Teniments sont dones a un home a les heires quae il engendera de corps sa feme en tiel case la feme nad riens c. Vnc'si le baron devie sans issue me la feme ser endowe per ceo que lissue que el per possibility puissoit auÌ„ per. me le baron puit enheriter A man seised of land in generall Taile taketh wife and after is attainted of Felony before the Statute of 1. E. 6. The issue should have inherited and yet the wife should not have bin endowed For the Statute of West 2. ca. 1. relieveth the issue in taile but not the wife in that case But at this day if the husband be attaint of Felony the wife shall be endowed and yet the issue shall not inherit the lands which the Father had in Fee simple If the wife elope from her husband c. she shall be barred of her dower and yet the issue shall inherit Sect. 55. The Law hath inflicted five punishments upon him that is attainted of Treason or Felony 1. He shall lose his life by an infamous death of hanging c. 2. His wife shall lose her Dower 3. His bloud is corrupted his children made ignoble if c. And cannot be heirs to him 4. He shall forfeit all his Lands and Tenements 5. All his goods and Chattels But the wife of a man attaint of Felony shall be endowed by force of the statute in that case provided If the heir be vouched by the Tenant in the Writ of Dower in the gard of the gardein The gardein shall plead it as well when he comes in as vouchee as when he is Tenant Also if the Lands holden in socage be not equall to the lands holden in chivalry some say that the defendant in the Writ of dower must have assets in her hands to the value of her Dower so as he shall not be partly indower against the gardein and partly retain in her own hands 18. E. 3. 4. But by 25. E. 3. 52. b. auterment est que est melior opinion c. CHAP. VI. Tenant a Terme de vie Sect. 56. IF Tenant per terme dauter vie dyeth living cesty que vie he that first entreth shall hold the land during that other mans life and he is in Law called an Occupant because his title is by his first occupation And so if Tenant for his own life grant over his Estate to another if the grantee dyeth there shall be an Occupant so it is if Tenant by the Curtesie or Tenant in Dower grant over his Estate or hers c. Fo. 41. a. l. 6. 37. nullum tempus occurrit regi in this case There can be no occupant of any thing that lyeth in grant and that cannot passe without deed because every Occupant must claime by a que estate averr the life of Ce ' que vie It were good to prevent the incertainty of the estate of the Occup to add these words to have and to hold to him and to his heirs during the life of Ce ' que
three natures some be voidable by entry and some void without entry Vide c. 32. H. 8. c. 28. l. 3. 59. 60. 33. H. 8. Dy. Entry Terminus in Law doth not only signifie the limits and limitation of time but also the estate and interest that passeth for that time As if a man make a Lease for 21. years and after make a Lease to begin à Fine expiratione praedicti termini c. and after the Lease first made is surrendred the second Lease shall begin presently but if it had been to begin post finem expirationem praedict 21 ann c. the second Lease should not begin till after the first Terme c. be ended by effluxion of time Fol. 45. l. 1. 154. l. 8. 145. Pl. c. 198. Terminus annorum certus esse debet determinatus Id certum est quod certum reddi potest 14. H 8. 14. The years must be certain when the Lease is to take effect in interest or possession l. 1. 155. 156. l. 6. 34. 35. If the Parson of D. make a Lease of his glebe for three yeares and so from three years to three years so long as he shall be Parson this is a good Lease for six years if he continue Parson so long first for three years and after that for three years and for the rest uncertain Terminus vitae est incertus c. And therefore if a man maketh a Lease for 21 years if I.S. live so long this is a good Lease and yet certain in incertainty 1. Pl. c. 273. Any estate for life being an estate of Freehold against whom a Praec quod redd doth lye is an higher and greater estate then a Lease for yeares Fo. 45. b. Albeit a Lease for years must have a certain beginning and a certaine end yet the continuance thereof may be incertain for the same may cease and revive again in many Cases Vide c. Fo. 46. a. 6. E. 6. Dy. 72. accord If a feme covert leavie a fine alone If the husband enter and avoyd the fine and die the whole estate is so avoyded as it shall not bind the wife after his death If a woman be endowed of an Advowson which is appropriated and shee present and her Incumbent is admitted instituted and inducted albeit the Incumbent die yet is the appropriation wholly dissolved because the Incumbent which came in by presentation had the whole state in him 2. E. 3. 8. per Scroop A release made to Tenant for years is not good to him to increase his estate before entry but he may release the rent reserved before entry in respect of the privity Neither can the Lessor grant away the reversion by the name of the reversion before entry But the Lessee before entry hath an interest interesse termini grantable to another Fo. 46. b. Vide c. D. 454. 567. If a lease be made to a baron and feme for term of their lives the remainder to the executors of the survivor of them the husband grant away this terme and dieth this shall not bar the wife for that the wife had but a possibility and no interest H. 17. El. B. R. If a lease be made by Indenture bearing date 26. Maii c. To have and to hold from the making hereof or from henceforth it shall begin on the day in which it is delivered c. But if it be à die confectionis then it shall begin the next day after the delivery l. 2. 5. Pl. Com. 148. l. 5. Fo. 1. Dy. 286. 307. l. 5. f. 1. A rent must be reserved out of lands or tenements whereunto the Lessor may have recourse to distreine and therefore a rent cannot be reserved by any common person out of any incorporeall Inheritance as Advowson Common Offices Corrodie Malcture of a Mill Tythes Fairs Markets Liberties Priviledges Franchises c. But if the Lease be made of them by Deed for years it may be good by way of contract to have an Action of Debt but distraine the Lessor cannot Neither shall it passe with the grant of the reversion for that it is no rent incident to the reversion But if any rent be reserved in such case upon a Lease for life it is voyd for that no action of debt doth lie Fo. 47. a. l. 7. 23. l. 10. 59. 30. Ass p. 5. Note a diversity betweene an exception which is ever part of the thing granted and of a thing in esse and a reservation which is alwayes of a thing not in esse but newly created or reserved out of the Land or Tenement demised Ex verbo generali aliquid accipitur Vide c. Valuable things shall not be distrained for rent for benefit and maintenance of Trades which by consequent are for the Common-wealth as cloth in a Taylors shop c. 7. H. 7. 1. b. Nothing shall be distresse for rent that cannot be rendred againe in as good plight c. but for damage feasant it is otherwise Vide c. 11. H. 7. 14. a. 21. H. 7. 39. b. 2. H. 4. 15. For rent due the last day of the Term the lessor cannot distrain because the Term is ended Fo. 47. b. Note a diversity between a rent reserved upon a Lease for yeares reserving a yearly rent the lessor may have severall actions of debt for every yeares rent But upon a bond or contract for payment of severall summes no action of debt lyeth till the last day be past In every contract there must be quid pro quo for contractus est quasi actus contra actum Vide c. l. 2. 15. a. If the Lease be made by Deed Poll the Lessee is not estopped to say that the lessor had nothing at the time of the Lease made but if it be by Deed indented then are both parties concluded c. 20. E. 4. 10. 2. E. 2. 253. Si hom pt Lease de son tr dem per fet indent lestop ne continue apres le terme expire M. 31. 32. El. in 8. Fo. 4◠a. Sect. 59. Il ne besoigne asc ' livery de seisin desire ft. allessee per ans mes il poit enter quant il voit per force de m. le Leas mes lou franktenement passa auterment est A livery in Deed may be done either by a solemne act and words as by delivery of the ring or haspe of the door c. 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 form and effect of this Deed. Or by words without any ceremony or act as the Feoffor being at the house door or within the house saying here I deliver you seisin c. in the name of seisin possession of all the Lands c. contained in this Deed. For if words may amount to a livery within the view much more it shall upon the land Fo. 48. a. 4. 41. E.
3. 17. b. 41. As p. 10. l. 6. 26. These words secundum formam cartae are understood according to the quantity and quality of the effectuall estate contained in the Deed. 7. E. 4. 25. 29. Ass 40. If A. by Deed give land to B. to have and to hold after the death of A. to B. and his heires this is a void Deed because he cannot reserve to himself a particular estate and construction must be made upon the whole Deed c. Fo. 48. b. Vide c. M. 33. 34. El. B. R. Hog Xs. A livery in Law is when the Feoffor saith to the Feoffee being in view of the house or land I give you yonder Land to you and your heires and go enter c. and take possession thereof accordingly and the Feoffee doth accordingly in the life of the Feoffor enter this is a good Feoffment for signatio pro traditione habetur And livery within the view is good where there is no Deed of Feoffment 9. E. 4. 39. 38. E. 3. 11. And note a livery in law shall be perfected and executed by an entry in law 38. Ass p. 23. If a man be disseised and make a writing of a Lease for years and deliver the Deed and after deliver it upon the ground the second delivery is void for the first delivery made it a Deed and for that the Lease for years must take effect by the delivery of the Deed therefore the Deed delivered when he was out of possession was void But so it is not of a Charter of Feoffment for that takes effect by the livery and seisin But if the Lessor had delivered it as an escrowe to be delivered as his Deed upon the ground this had been good Vide libr. l. 3. 35. Jennings Brag. Of Freehold and inheritances some be corporeall as lands c. these are to passe by livery of seisin by Deed or without Deed some be incorporeall as Advowsons Rents Commons c. These cannot passe without Deed but without any livery Et est traditio de re corporali de una persona in personam de manu c. quia non possunt res incorporales possideri sed quasi ideo traditionem non patiuntur c. Bract. lib. 2. c. 18. In some cases a Freehold shall passe by the common law without livery of seisin as if a house or Land belong to an office by the grant of the office by Deed the house c. passeth as belonging thereunto Vide c. So if the house belong to a Corodie by the grant of the Cor. the house passeth 31. H. 6. 16. 8. H. 7. 4. Sect. 60. Lease est fait per ans le remainder ouster a un auter per vie en cest case livery de seisin est requisite ou auterment riens passa a celluy en remainder But livery cannot be made to the next in remainder because the possession belongs to the Lessee for years and for that the particular terme and all the remainders in law make but one estate and take effect at one time therefore the livery is to be made to the Lessee Remanere is a residue of an estate depending upon a particular estate and created together with the same A man being absent cannot take a Freehold by a livery but by his Attorney being lawfully authorized to receive livery by Deed unlesse the Feoffment be made by Deed and then livery to one Jointenant in name of both is good Fo. 49. b. If a man deliver a Deed without saying any thing it is a good delivery but to a livery of seisin of land words are necessary Vide c. A man makes a Lease for years 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 view but he that taketh the freehold himselfe By the entry of the Lessee he is in actuall possession and then the livery cannot be made to him that is in possession for quod semel meum est amplius meum esse non potest Vide c. Affectio tua nomen imponit operi tuo Bract. lib. 1. But the dissoÌ„r infeoff the dissee and others albeit the disseisee came to take livery he is remitted to the whole Sect. 62. c. An exchange of Lands c. is good without livery of seisin And in case of a fine which is a Feoffment of Record of a devisor by a last will of a surrender of a Release or confirmation to a Lessee for years or at will In all these cases and some other a Freehold c. may passe without livery Fo. 50. a. In exchanges many things are to be observed First that the things exchanged need not to be in esse at the time of the exchange made I grant a rent newly created out of my Lands in exchange for the Mannor of D. this is a good exchange 2. There needeth no transmutation of possession and therefore a Release of a rent or estovers or right to Land in exchange for land is good 3. The things exchanged need not to be of one nature so they concerne Lands or Tenements As Land for rent or Common c. Vide c. Fo. 50. b. But annuities c. which charge the person onely cannot be exchanged c. Sect. 64 and 65. There be five things necessary to the perfection of an exchange 1. That the Estates given be equall viz. that there be equality of the quantity of the estate as if the one hath a Fee-simple c. the other shall have a like Estate c. But equality in value of Lands in an exchange is not requisite neither equality in the quality or manner of the estate 2. That this word excambium exchange be used which is so individually requisite as it cannot be supplied by any other word or described by any circumloquution 3. That there be an execution by entry or claime in the life of the parties 4. That if it be of things that lye in grant it must be by Deed. 5. If the Lâ—nds be in severall Counties there ought to be a Deed indented or if the thing lie in grant as an Advowson c. albeit they be in one County fol. 51. a. b. The agreement of the parties cannot make that good which the law maketh void Sect. 66. The interest of the terme doth passe and vest in the Lessee for yeers before entry and therefore the death of the Lessor cannot devest that which was vested before Infants Feme coverts persons attainted outlawed excommunicated villains aliens c. may be private Attorneys to deliver seisin fo 52. a. vide quaere The authority of an Attorney is twofold expressed in his Warrant and implyed in law both which he must pursue and if he do lesse it is voyd 12. Ass p 24. There is a diversitie between an Authority coupled with an interest and a bare Authority fo 52. b.
E. 4. 1. b. 4 E. 4. 10. 3. For matters within the Realm 5 E. 4. 30. the Custom of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder 4. By Certificate of the Sheriff upon a Writ to him directed 10 H 10. in case of Priviledge if one be a Citizen or a Forreiner 5. Tryal of Records by Certificate of the Judges in whose custody they are by Law All these be in Temporal causes 6. In causes Ecclesiastical as loyalty in Marriage general Bastardy Excommengment Profession c. which are to be tried by the Certificate of the Ordinary Also if a Subject of the King be killed by another of his Subjects out of England in any Forreign Country the wife or he that is heir of the dead may have an Appeal for this Murther or Homicide before the Constable and the Marshal whose sentence is upon the Testimony of Witnesses or Combate fo 74. a. vide lib. Stat. 1 H. 4. cap. 14. 13 H. 4. fol. 5. c. Anno 25 El c. CHAP. IV. Knights service Sect. 103. TEnure per homage fealty escuage est a tener per service de Chivaler trait a luy gard mariage reliefe Si haereditas teneatur per servitium militare tunc per leges infans ipse haereditas ejus c. per dominum feodi illius custodientur c. Fortesc ca. 44. Audacter quilibet facit quod se scire non diffidit Amongst the Lawes of St Edward the Confessor it is thus provided Debent enim universi liberi homines c. secundum foedum suum sciendum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum domini Regis explendum peragendum Lambert fo 135. a. And William the Conqueror confirmed that Law c. And therefore if after the Lord hath the Wardship of the body and land the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the Infant he shall be out of Ward c. for he was in Ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct cessante causa cessat causatum fol. 76. a. Regularly there be six incidents to Knights service viz. Two of Honor and Submission as Homage and Fealty and four of Profit as Escuage Ward Marriage and Relief Also these be other incidents to Knights service besides these as aid per faire fitz Chivalrer and aid per file marier c. Relevium is derived from Relevare Quia haereditas quae jacens fuit per antecessoris decessum relevatur in manus haeredum propter factam relevationem facienda erit ab haerede quaedam praestatio quae dicitur relevium Bract. lib. 2. ca. 36. fo 84. By custome the heires of him that holdeth in Socage may be in a word * By the common Law the heir shall not be in ward unlesse he claime as heire by discent Vide Libr. In many Cases the heire shall be in ward albeit the Tenant died not seised c nor in the Homage of the Lord. But if one levy a fine executory as fur grant and render to a man and his heires and he to whom the Land is granted and rendred before execution dieth his heire being within age entreth he shall not be in ward for his ancestor was never * tenant to the Lord. Vide c. If the disseisie die his heire being within age the Lord shall have the wardship of the heir of the body of the disseisee and if the disseisor dieth seised and his heire within age the Lord may seise the wardship of his heire also and of the Land also c. Vide c. For the ease of the heire and for avoiding of danger c. The heire for the most part after his full age sueth out a speciall livery which containeth a beneficiall pardon c. Fo. 77. a. Vide quaere A common person shall have nothing in ward but that which is holden of him But the King by his Prerogative shall not only have such Lands c. which the heire of his Tenant by Knights service in Capite holdeth of others but such inheritances also as are not holden at all of any as rent-charges rent-seck Fayres Markets Warrens Annuities c. Fo. 78. a. Stamf. pr. Fo. 8. * The Law is changed since Littleton wrote in many Cases both for the marriage of the body and for the wardship of the Lands and a farre greater benefit given to the Lords then the common Law gave them and some advantage given to the heires which before they had not As if the Father had made an estate for life or a gift in taile of Lands holden by Knights service to his eldest Son or other heir apparant within age the remainder in Fee to any other and dyed the heir should not have been in ward for this was out of the Stat. Merlebridg But at this day the heir shall be in that case in ward for his body and a third part of his land So if the Father had infeoffed his eldest Son within age and a stranger and the heirs of the son and died the son should have been out of ward but at this day he shall be in ward for his body and for a third part of his moity Fo. 78. a Vide c. The benefits that grew to the subject by acts of Parliament were that Tenants in Fee simple might devise their lands in such manner and form c. Also that the Father might infeoffe his eldest Sonne or other heir lineal or collaterall holden by Knights service and two parts of the Land shall be out of ward Lib. 8. fo 83. fo 163. And both the Statute of 32 and 34 H. 8. Concerning Wills and Wardships are many waies prejudiciall to the heirs as if Tenant by Knights service make a Feoffment in Fee to the use of his wife and heir heirs or to the use of a younger Sonne and his heirs or wholly for the payment of his debts In these cases although nothing at all of the Lands so holden descend to the heir but he is disherited of the same yet his body shall be in ward In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt presumenda vera tamen honesta possibilia Lex semper intendit quod rationi convenit By intendment of Law the heir is not able to do Knights service before his full age of 21. years and therefore hath a gardian c. A woman hath seven ages for several purposes appointed to her by Law as seven years for the Lord to have aid pur file Marr. Nine years to deserve Dower 12. years to consent to marriage
Ante fol. 83. 69. Sect. 138. and 139. Nihil quod est inconveniens est licitum fol. 97. b. It is better saith the Law to suffer a mischief that is peculiar to one then an inconvenience that may prejudice many 42 Ed. 3. 5. 28 E. 3. 395. 20 H. 6. 28. There is no Land that is not holden of some Lord or other by some service Spiritual or Temporal Nihil quod est contra rationem est licitum For Reason is the life of the Law nay the Common Law it self is nothing else but Reason which is to be understood of an artificial perfection of Reason gotten by long study observation and experience and not of every mans natural Reason for Nemo nascitur artifex Neminem oportet esse sapientiorem legibus Si un Abbot c. alien his lands holden in Frankalmoigne to a secular man in fee simple In this case albeit the Alienor held not by fealty nor any other terrene service but only by Spiritual services and those incertain yet the Alience shall hold by the certain service of fealty fol. 98. a. Sect. 140. Il est ordeigne per lestatut Quia empt terrum fait 18 Ed. 1. que nul poit alien ne grant terres c. en fee simple a ten de luy mesme Alienatio licet prohibeatur consensu tamen omnium in quorum favorem prohibita est potest fieri quilibet potest renunciare juri pro se introducto Praesumitur rex habere omnia jura in scrinio pectoris sui Dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensata vide libr. quaere fo 99. a. By Prescription the successor of an Abbot may pay relief Sect. 141. Nul poit tenure terres c. en frankalm forsprise del grantor on de ses heires Here or hath the sense of and c. For the heir cannot take any thing in the life of the ancestor neither can the heire take any thing by discent when the ancestor himself is secluded Vide c. As a man cannot grant lands in Taile and reserve a rent to his heirs 15. E. 4. The tenure in frankalmoigne is an incident to the inheritable bloud of the grantor and cannot be transferred or forfeited to any other But it is not an incident inseparable c. For the Lord may release to the Tenant in frankalmoigne and then the tenure is extinct and he shall hold of the Lord Paramount by Fealty As in Littl. S. 139. And if the Seigniory be transferred by act in Law to a stranger thereby the privity is altered and the tenure changed Fo. 99. b. And a Bishop with assent of his Chapter c. may give Lands in Frankalmoigne to hold of them and their successors by licence c. Alwaies the Seigniory neerer to the Land drowns the Seigniory that is more remote c. Sect. 142. Lâ—mesne est tenus de acquiter son Tenant en frankal de Chesc ' manner de service que asc ' Seignior Paramount de luy void demand He is also to aquitt him of improvement of services as if he be distrained for relief aid per file mar c. Also for suit service to a hundred but for suit reall in respect of resiance within any hundred c. it is otherwise There be three kindes of Acquitals 1. An acquitall by Deed. 2. An acquitall by prescription 3. An acquitall by tenure and that is four manner of waies 1. By owelty of service for service acquites service 2. Tenure in Frankalm 3. Tenure in Frankmar 4. Tenure by reason of Dower F. N. B. 135. c. There be six Writs in Law maintainable before any molestation c. As 1. A man may have his Writ of Mesne before he be distreined 2. A Warr. Cartae before he be impleaded 3. A Monstraver before any distresse or vexation 4. An Aud. quer before any execution sued 5. A Curia claudend before any default of inclosure 6. A ne injuste vexes before any distresse or molestation and these be called brevia anticipantia Nota the Plaintiff in a Writ of Mesne may chuse either processe at the common Law or upon the Statute of West 2. And upon processe given by the said Statute viz. Summons Attachment and grand distresse if the Mesne cometh not he shall be fore-judged and the judgement is quod T. le mesne amittat servitia de A le Tenant de tenemtis praedictis quod omisso praedicto T. praefat R. le Seignior Paramount modo sit attendens respond per eadem servit per quae T. tenuit Also if the Tenant be not acquitted after he hath recovered in a Writ of Mesne he shall have a Writ of Distringas ad acquietand Fo. 100. Vide c. F.N.B. 138. If two joyntenants bring a Writ of Mesne and the one is summon'd and severed the other cannot fore-judge the Mesne for he ought to be attendant to the Lord Paramount as the Mesne was and that cannot he be alone And so if there be two joyntenants Mesnes and in a Writ of Mesne brought against them one maketh default and the other appears there can be no fore-judger Vide Libr. quaere If the Daughter the Son being in venter sa mere before judged it shall binde the Son that is born afterwards for he had no right at the time of fore-judgement CHAP. VII Homage Auncestrel Sect. 143. c. HOm. Aunc est lou un tenant tient sa terre de SoÌ„ Seigper Homage m. le tenant ses Ancestors que heire il est ont tenus m. la terre del dit Seignior de ses ancestors c. de temps dont memorie ne court per homage on t st a eux homage Tiel Seignior doit garrant son tenant queunt il eÌ„ implede de la terre c. Auxiâ—il doit acquiter le tenant envers touts Seigniors Paramount luy de chesi manner de service Mes si le Seignior navoit recieve pas homage del tenant c. Nede asc ' de ses ancestors il poit disclaimer en le tenancy quaÌ„nt il est vouch issint oust le tenant de son garrantie Sect. 145. Est tanta talis connexio per homagium inter dominum tenentem quod tantum debet dominus tenenti quantum tenens domino praeter solam reverentiam Bract. Fo. 78. Glan li. 9. ca. 4. Brit. Fo. 170. a. Ancient continued inheritance on both parties hath more priviledge and account in Law then inheritances lately or within memorie acquired Fol. 101. a. Warrantus vouchee is either to defend the right against the demandant or to yeeld him other Land c. in value and extendeth to Lands c. of an estate of Freehold or inheritance and not to any Chattell real personall or mixt saving only in case of a wardship granted with warrant for in the other cases concerning Chattels c. The voucher shall have his action of Covenant if
for an use is but a trust and confidence which by such a meane might be limited by the husband to the wife Omnia quae sunt uxoris sunt ipsius viri non habet uxor potestatem sui sed vir Bract. lib. 2. ca. 15. Vir uxor sunt quasi unica persona quia caro una sanguis unus res licet sit propria uxoris vir tamen ejus custos cum sit caput mulieris Bract. 5. tract 5. ca. 25. al. 2. Baron 10 H. 720. Extrix delcē que use poit vend terres devisi In contractibus benigna in testamentis benignior in restitutionibus benignissima interpretatio facienda est voluntas testatoris est ambulatoria usque ad mortem The first grant and the last will is of greatest force Cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est If a feme covert be seised of Lands in Fee she cannot devise the same to her husband because she is sub potestate viri c. Sect. 169. of 113. Item per tiel custome home poit deviser per sen testamentum que les executors point aliewr les tenements in Fee c. pur cert sum de mony a distribut pur son alme issint poies veir icy un case ou home poit faire loial estate encore il navoit riens en les tenements al temps del estate ft. quia consuetudo ex certa causa rationabili usitata privat communem legem Here it appeareth that the Executors having but a power as Littl. putteth the Case to sell they must all join in the sale Fo. 112. b. Vide c. Dyer 177. But if a man deviseth Lands to his executors to be sold and maketh two Executors and the one dieth yet the survivor may sell the Land because as the state so the Trust shall survive and so note a diversity between a bare trust and a trust coupled with an interest 39. Ass p. 17. Dyer 210. and 371. By the Statute of 21 H. 8. it is provided that where Lands are willed to be sold by Executors that though part of them refuse yet the residue may sell Lib. 1. 173. Mine advise to them that make such devise by will is to make it as certaine as they can as that the sale be made by his Executors or the survivors or survivor of them if his meaning be so or by such or so many of them as take upon them the probate of his will c. And it is better to give them an authority then an estate unlesse his meaning be they should take the profits of his Lands in the mean time and then it is necessary that he deviseth that the mean profits till the sale shall be assets in their hands for otherwise they shall not be so Vide lib. fo 113. Stat. 32. H. 8. c. 2. 34. H. 8. cap. 5. Consuetudo prescripta legitima vincet legem But no Custome or prescription can take away the force of an Act of Parliament Praescriptio est titulus ex usu tempore substantiam capiens ab autoritate legis A title taking his substance of use and time allowed by the Law 12 E. 4. 1. 2 M. Br. pr. 100. 6 E. 6. Dy. 31. 45. Ass 8. Sect. 170. I. S. Seised of the Manor of D. in Fee prescribeth thus that I.S. his ancestors and all those whose estate he hath in the said Manor have time out of mind of man had and used to have common of pasture c. in such a place c. Being the Land of some other c. as pertaining to the said Manor A Custome is in this manner A. Copyholder of the Manor of D. doth plead c. that all the Copyholders c. have had and used to have common of pasture c. in such a wast of the Lord parcell of the said Manor But both to customes and prescriptions these two things are incident inseparable viz. possession or usage and time Possession must have 3 qualities it must be long continuall and peaceable S. 170. Note 1. To what things a man may make a title by prescription without Charter and 2. How it may be lost by interruption For the first as to Franchises and liberties as cannot be seised as forfeited before the cause of forfeiture appear of Record no man can make a title by prescription c. as to the goods and Chattels of Felons c. to make a Coroner c. l. 5. 109. l. 9. 29. But to treasure trove waifes estraies c. to hold Pleas c. A man may make a title by usage onely c. Without any matter of Record Fo. 114. 6. 9 H. 7. 11. 20. And for the second it is to be known that the title being once gained by prescription or custome cannot be lost by the interruption of the possession for 10 or 20 yeares but by interruption in the right as if a man have had a rent or common by prescription unity of possession of as high and perdurable estate is an interruption in the right Vide c. Fo. 114. b. A Modus decimandi was alledged Mich. 42. and 44 Eliz. in banco Reg. by prescription time out of minde for tythes of Lambes and thereupon issue joined and the Jury found that before 20 years then last past there was such a prescription and that for this 20 years he had paid the Lambes in specie and it was objected first that the issue was found against the plaintiff for the prescription was generall for all the time of prescription and 20 years fail thereof 2. That the party by paiment of tythes in specie had waived the praescription or custome But it was adjudged for the plaintiffe in the prohibition for albeit the modus decim had not been paid by the space of 20 years yet the prescription being found the substance of the issue is found for the plaintiffe Vide Lib. c. M. 43. and 44 Eliz. B.R. Nowell and Hicks Note all the prescriptions that were limited from a certaine time were by Act of Parliament as from the time of H. 1. After that from the time of H. 2. By the Statute of Merton and from the time of R. 2. By the Statute of Westm 1. But the prescription of time out of memory of man was at the Common Law and limited no time Memory or knowledge is twofold First by knowledge by proof as by Record or sufficient matter of writing 2. by his own proper knowledge 28. Ass 25. 11 H. 7. 21. Dy. 273. There is a diversity between an Act of Parliament in the Negative and in the Affirmative for an Affirmative Act doth not take away a custome as the Statute of Wills of 32. and 34 H. 8. Do not take away a custom to devise Lands c. Also there is a diversity between Statutes that be in the Negative for if a Statute in the Negative be declarative of the Ancient Law that is in
infranchised Kellaway 134. But if the Lord sue his vill by appeal of Felony where he was indicted of the same before this shall not enfranchise the villain and although he be acquited upon the appeal for he shall recover no damages against his Lord. W. 2. c. 12. 22. Ass p. 39. 14 H. 7. 2. Sect. 204. and 210. c. None ought to pay fines for the marriage of their daughters without licence of the Lord c. but villains of blood or freemen holding in Villenage 43 E. 3. 5. Additio probat minoritatem Haereditas inter masculos jure civili est dividendae Fort. c. 40. Haud facile emergunt quorum virtutibus obstat Res angusta domi Horace By the Statute of 31 H. 8. a great part of Kent is made descendable to the eldest son 18 H. 6. c. 1. For In plures quoties rivos deducitur amnis Fit minor aec unda deficiente perit Sect. 211. and 212. There is a speciall kind of Borough of Engl. as it shall descend to the younger son if he be not of the half blood and if he be then to the eldest son 32 E. 3. tit age 81. within the mannor of B. in Comit. Berks there is such a custome that if a man hath divers daughters and no son and dieth the eldest daughter shall onely inherit and if he have no daughter but sisters the eldest sister by the custome shall inherit and sometime the youngest M. 10. Ja. Eliots c. Brit. 187. b. Hor. Imberbis juvenis tandem Custode remoto Gaudet equis Canibusque aprici gramine Campi Cereus in vitium flecti monitoribus asper Vtilium tardus provisor prodigus aeris Sublimis cupidusque amata relinquere pernix Nil homine insirmum tellus animalia nutrit Inter Cuncta magis Home Aliquis non debet esse judex in propria causa 10 E. 3. 23. 2 H. 3. 4. H. 4 H. 4. Salop. Coram Rege Praescription que est encounter reason ne doit est allow quia malus usus abolendus est In consuetudmibus non diuturnicas temporis sed soliditas rationis consideranda est Fo. 141. a. Rex c. pro coÌ„i utilitate terrae Hiberniae pro unitate terrarum provisum est quod omnes leges c. quae in Reg. Angl. tenentur in Hybernia teneantur c Sicut Johannes Rex cum illic esset statuit firmiter mandavit c. Rot. pat 30 H. 3. Vid. lib. 141. b. By an Act of Parliament tent 10 H 7. est enact que touts stat ft. in England devant cela temps ferront in force in Royalme de Ireland CHAP. XII Of Rents Sect. 213. REnt service est lou le tenant tient la terre de son Seignior per service and certain â—ent le Seignior poit distr pur ceo de common right Rent is reserved out of the profits of the Land and is not due till the Tenant or Lessee take the profits for reddere nihil aliud est quam acceptum aut aliquam partem ejusdem restituere seu reddere est quasi retro dare Lib. 10 148. Cluns Case Pl. Com. 138 139 c. Browning c. A rent service cannot be reserved out of any inheritance but such as is manurable whereinto the Lord may enter and take a distresse as in Lands c. Reversions Remainders and as some have said out of the herbage of Lands and reg not out of any inheritance incorporeall or that lie in grant Lib. 5. fo 4. Seignior Mountjoyes c. l. 7. f. 23. Buts c. Pl. com 139. By Act of Law one rent or service may issue out of another 3 H. 6. 21. And though it be out of Lands c. Yet it must be out of an estate that passeth by the conveyance and nor out of a right 10 E. 4 3. b. As if the disseisee release to the disseisor of the Land reserving a rent the reserve is good Fo. 144. a. Non debet esse reservatio de proficuis ipsis quia ea conceduntur sed de redditu novo extra preficua 38 H. 6. 38. a Fol. 142. a. The common Law is the best and most common birth-right that the subject hath for the safeguard of his lands c. 2 H. 4. c. 1. Justice is the daughter of the Law for the Law bringeth her forth A rent service may be reserved without Deed 35 H. 6. 34. Sect. 215 c. Ou home sur un done en Taile ou lease c. voile reserv a lu rent service il covient que le reversion c. Soit en le donor ou lessor c. This is not to be understood only of a reversion immediately expectant upon the gift or Lease for if a man make a gift in taile the remainder in taile reserving a rent and keep the reversion in himselfe this is a rent service Fo. 142. b. Reserver sometimes hath the force of saving or except so as sometimes it serveth to reserve a new thing viz. a Rent 8 E. 4. 48. Sometime to except part of the thing in esse that is granted 35 H 6. 34. In the grant of a reversion the rent may be excepted but not the services If a man make a gift in tail without any reservation the donee shall hold of the donor by the same services that he held over The Law regardeth equity and equality without any provision or reservation on the party B. f. 100. Ipsae etenim leges cupiunt ut jure regaâ—tur But if the Lessor for life or years reserveth nothing he shall have fealty only which is an incident inseparable to the reversion 38 E. 3. 7. Littl. fo 4. Sect 217. and 218. Rent must be reserved to him from whom the state of the Land moveth and not to a stranger 18 E. 2. Ass 381. But some do hold that otherwise it is in the case of the King 35 H. 6. 36 * Note that upon a reservation of a rent upon a feoffment in Fee by Deed Indenture the feoffor shall not have a Writ of annuity because the words of reservation as Reddendo c. are the words of the Feoffor and not of the Feoffee albeit the Feoffee by acceptance of the State is bound thereby 33 E. 3. Annuity 52. 1 H. 4. 5. And it is holden that a reservation upon a Feoffment in Fee made by Deed Poll is good 8 E 4. 8. Auxi si un home SeÌ„i de cert terre grant per unft Poll ou per Indentare un annual rent issuant hors de m. la terre a un auter in Fee ou in fee taile ou per terme de vie c. ovesque clause de distresse c. donques ceo est rent charge si le grant soit sans clause de distresse donques il est r. seck i. e. redditus siccus Also a man may have a rent by prescription 19 E. 3. Title 34. Sect. 219. If a man grant by his Deed a rent charge to another and
the rent is behind the grantee hath election to bring a Writ of annuity * and charging the person only c. or to dâ—straine upon the Land and to make it reall * and charging the person onely to make it personall Put case that A. be seised of Lands in fee and he and B grant a rent charge to one in fee this prima facte is the grant of A and the confirming of B. but yet the grantee may have a VVrit of Annuity against both Two men grant an annuity of 20 l. per an to another although the persons be severall yet he shall have but one annuity But if the grant be Obligam nos utrumque nostr The grantee may have a VVrit of Annuity against B either of them but he shall have but one satisfaction 16 E. 2. tit annuity 47. If a rent charge be granted to a man and his heires he shall not have a Writ of annuity against the heire of the grantor albeit he hath Assets unlesse the grant be for him and his heires 2 H. 4. 13. Dyer 17 Eliz. 344. b. Vide c. Fo. 144. b. But Littl. is to be understood with some limitation for of a rent granted for owelty of partition a writ of annuity doth not ly because it is of the nature of the Land descended Also of such a rent as may be granted without Deed a Writ of annuity doth not lye though it be granted by Deed. 29 Ass p. 23. Note as to elections these diversities following 1 When nothing passeth to the Feoffee or Grantee before election c. There the election ought to be made in the life of the parties c. But when an estate or interest passes immediately to the Feoffee Donee or Gaantee there the Election may be made by them or by their heirs or executors Lib. 2. fo 36. c. Sir Row Haywards c. 2 When one and the same thing passeth c. and the Donee or grantee hath election in what manner or degree he will take this there the interest passeth immediately and the party his heires or executors may make election when they will 3 When election is given to severall persons there the first election made by any of the persons shall stand 4 In case an election be given of two severall things alwaies he which is the first agent and ought to doe the first Act shall have the. election 2 H. 7. 23. a. 5 When the granted is of things annuall and are to have continuance there the election remaineth to the grantor in case where the Law giveth to him election as well after the day as before otherwise it is when the things are to be performed unica vice 9 E. 4. 36. and â—3 E. 4. Grantee for life c. ought to bring his Writ of annuity in the disjunctive else the judgment c. shall determine his election for ever herein Fitzh is mistaken 6 The Feoffee by his act and wrong may lose his election and give the same to the Feoffer as if one infeoffe another of two acres to have and to hold the one for life and the other in tail and he before election make a Feoffment of both in this case the Feoffer shall have election to enter into which of them he will c. Note that this determination of the election of the grantee must be by action or sure in Court of Record If the grantee doth bring a Writ of annuity and at the returne thereof appear and account this is a determination of his election in Court or Record albeit he never proceedeth any further F.N.B. 152. a. 5 H. 7. 33. b So if the grantee bring an Ass for the rent and make his plaint he shall never after bring a Writ of annuity 10 E 4. 17. For an Anvowry in Court of Record which is in nature of an action is a determination of his election before any judgment given F. 145. b. It is a generall rule that the plaintiffe must have the property of the goods in him at the time of the taking 3 E. 3. 74. 6 H. 4. 2. But yet if the goods of a villain be distreined the Lord of the villain shall have a Replevy because the bringing of a Replevy amounts to a claim in Law and vests the property in â—he plaintiff But in that case if the goods of a villain be taken by a trns. the Lord shall have no Replevy because the villain had but a right 33 E. 3. Repl. 43. F.N. B. 69 F. Property ought to be tryed by Writ 30 E. 3. 22. A man cannot claim property by his Bayliffe or servant for that if the claim fall out to be false he shall be fined for his contempt which the Lord cannot be unlesse he maketh claim himself for nemo punitur pro alieno delicto 5 E. 3 38. 11 H. 4. 4. fo 145. b. In a speciall case a man may have a Replevy of goods not distreined as if the Mesner put in his catrell in lieu of the cattel of the tenant peravaile that he is bound to acquite he shall have a Replevy c. 34 H. 6. 47. It is against the nature of a distresse taken c to be irreplevisable 31 E. 3. Gage DeliuÌ„ 5. And Bract. Lib 4. fo 233. a. and b. Saith Eâ—dem modo de via obstructa per breve quod justiciet propter coÌ„em utilitatem ne transeuntes ire diu impediantur quia hoc esset commune damnum in hoc vicecomes Justiciarii faciant sicut super detensionem averior contra vadium plegii propter commune utilit ne animalia diu inclusa pereant If the beasts of divers severall men be taken they cannot joyn in a Repleg but every one must have a severall Repl. and so in a Repleg it is a good plea to say that the property is to the plaintiff and to a stranger and where there be two plaintiffes that the property is to one of them 28 E. 3. 92. 2 E. 4. 23. Electio semel facta placitum cestatum oÌ„ patitur regressum Quod semel in electionibus placuit amplius displicere noÌ„ potest Note a diversity between the case * fo 65. a. aforesaid of the grant of the rent where he may take it either reall or personall and when a man may have election to have several remedies for a thing that is meerly personall or meerly reall from the beginning As if a man may have an action of account or an action of debt at his pleasure and he bringeth an action of account and appear to it and after it Nonsuit yet may he have an action of debt afterwards because both actions charge the person So it is of an Ass and of a Writ of entry in the nature of an Ass c. 28 E. 3. 98. b. 27 E. 3. 89. b. Fo. 146. a. Sect. 220. By this Section it appeareth that when in a general grant the Law doth give two remedies that the grantor may provide that the
and rent and the rent be recovered the Fealty shall includedly be recovered 44 E. 3. 19. 26 Ass 38. 8 E. 4. 28. So long as Homage continues the Fealty cannot be divided from it vide lib. c. 151. a. Note a diversity between these corporeal services of Homage Fealty and Escuage which cannot become seck or dry but make Tenure whereunto Distresses Escheats and other Profits be incident and other corporeal services ast â—o Plough Repair Attend c. And all Rents whatsoever for they may become seek and make no Tenure Rent and Fealty are incident to the Reversion viz. Rent separably and Fealty inseparably 12 E. 4. 3. Doct. Stud. lib. 2. c. 9. The incident shall pass by the grant of the Principal but not è converso Accessorium non ducit sed sequitur suum principale fo 152. a. If the Tenant infeoff the Lord Paramount and his wife and their heires in this case the Mesnalty is but suspended for if the wife survive both Mesnalty and Seignory are revived 7 Ass 2. 7 E. 3. 20. It is said that if there be Lord Mesne and Tenant each of them by Fealty and 6 d. the Lord confirm the state of the Tenant to hold of him by Fealty and 3 d. that the Mesnalty is extinct So it is if â—he Lord release to the Tenant for whether the Lord purchase the Tenancy or the Tenant the Seigniory the Mesnalty is extinct 8 H. 6. 24. fo 152. b. So if there be Lord and Tenant and the Tenant make a gift in tail the remainder to the King the Seigniory it extinct 4 5 P. M. Dyer 154. Lex citius tolerare vult privatum damnum quam publicum malum 13 H. 4. 3. 40. Ass p. 27. No man can hold one and the same land immediately of two severall Lords And one man cannot of the same land be both Lord and Tenant It is Reg. true Res inter alios acta alteri nocere non debet Et factum unius alteri nocere non debet which are true with this Exception unless an inconvenience should follow c. Quando lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest And therefore if a man maketh a lease for life reserving a rent and binde himself in a Statute and the Cognisee hath the rent extended and delivered to him he shall distrain for the rent because he commeth to it by course of Law 13 H 4 Avowry 237. La ley voet plus toft suffer un mischiefe que un inconvenience pur ceo si Mesne tient per 12 d. tenant per 5 s. le seignieur purchase le tenancy le seigniory del Mesnalty eÌ„ extinct Et le mesne auÌ„a 4 s. come rent seck de le seignieur Sect. 233. Si home que ad rent seck est un foits sei d'asc ' parcel de le rent apurs le tenant ne voile payer le rent aver il auÌ„a ass de novel diss A rent seck or rent charge may be demanded after it is behinde at any time c. for Remedies for Rights are ever favourably expounded M. 41. E. 4 adjudged If the demand be made upon the land and the rent is not paid whether the tenant be present or absent yet this is a denyall in Law c. Disseisina is a putting out of a man out of seisin and ever implyeth a wrong But dispossessing or ejectment is a putting out of possession and may be right or by wrong Bract. l. 4 f. 161. Mirr c. 2. s Disseisin est un personal trespass de tortius ouster del seisin Where the Statute of Merton 20 H. 3. saith Disseisitus de libero tenemento Littleton expounds it to extend to a rent seck or rent charge albeit they be against common rights yet a man hath a Freehold in them 40. Ass 23. ac And he that granteth omnia tenementa sua a rent charge or a rent seck doth pass 14 E. 4. 4. 11 H. 6. 22. Recuperare i. ad rem per injuriam extort ' sive detentam per sententiam Judicis restitui Execution is the obtaining of actuall possession of any thing acquired by Judgement of Law or by a Fine executory levied whether it be by Sheriff or by the entry of the party vide Sect. 504. If the Recovery in Assize c. be had against one and hee and another redisseise the Plaintiff he shall not have a Redisseisin for heâ—e is alius and hee cannot have a Redisseisin against the former disseisor alone because he is joynt-tenant with another For joynt tenancy in a Writ of Redisseisin is a good plea and a stranger shall not be subject to double imprisonment and double damages 33 E. 3 Redisseâ—st 17. 9 H. 4. 5. F.N.B. 118. e. A Redisseisin doth lye against the disseisor which doth redisseise and his Feoffee after the second disseisin for otherwise the redisseisor might prevent the Plaintiff of his redisseisin If the Mesne recovereth a rent when it is a rent service and after the rent becommeth a rent seck by surplusage and doth redisseise him of the rent hee shall have a redisseisin for the substance of the rent remains though the quality be altered Sect. 234. He that is of a Jury must be liber legalis homo 9. E 4. 16. First hee ought to be dwelling most neare to the place where the question is moved 2. He ought to be most sufficient both for understanding and competency of estate 3. To bee least suspitious that is to be indifferent as he stands unsworn Vide S. 102. 193. Ad questionem facti non respondent Indices Ad quaestio juris non respondent luâ—atores Calumniare to challenge i. e. to except against them in Court that are returned to be Iurors Fo. 155. b. It is most necessary that Iurors be omni exceptione majores forasmuch as mens lives c. are to be tried by them Nota that there is a principall cause of challenge to the array and a challenge to the favour Fol. 156. a. Vide nota The challenge to the array is in respect to the cause of unindifferency or default in the Sheriff or other officer that made the returne and not in respect of the persons returned where there is no default in the Sheriff c. for if the challenge to the array be found against the party that takes it yet he shall have his particular challenge to the Polls that is to the particular persons and these be of four kinds i.e. peremptory principall which induce favour and for default of hundredors fo 156. b. A man may challenge peremptorily without shewing any cause and this only is in case of Felony c. In favorem vitae Vide c. Principall challenges to the Poll may be reduced to foure heads 1. Propter honoris respectum as no Peer of the realme is to be sworn on Juries l. 6. 52. 2. Propter
entry of him that Right hath may be taken away 3. The Remedies and in what Cases the same may be prevented or avoided 4. How a man may be barted of his Right for ever and in what Cases the same may be prevented or avoided vide lib. Nota fol. 163. 2 ouâ— 3 parceners sont forsque un heire a lour Auncest ' for albeit where there be two parceners they have moities in the lands descended to them yet are they both but one heire vid. S. 8. vers fin Nota diversitat ' between a Descent which is an act of the Law and a Purchase which is an act of the party For if a man hath two daughters c. and one of them is attaint of Felony the father dye hâ— the one moity shall descend to the one daughter and the other shall escheat But if a man make a lease for life the remainder to the right heirs of A. being dead who hath issue two daughters and one is attainted c. the remainder is void for the whole for that both the daughters should have been but one heir Fleta l. 5. c 9. l. 6 c. 47. fo 164. a. vide qu. Sunt autem plures participes quasi unum corpus in eo quod unum jus habent oportet quod corpus sit integrum quod in nulla parte sit defectum If lands be given to a man and to the heires females of his body and he hath issue a Son and a Daughter and dyeth the Daughter shall have the land by descent but if a remainder be limited to the heirs females of the body of I. S. c. the daughter shall never take it by Purchase for that shee is not heir female of the body of I. S. because he hath a Son And when the right heir doth claim by purchase he must be a compleat heir in judgement of Law And as they be but one heir and yet severall persons so have they one Free-hold in the land so long as it remains undivided in respect of any strangers Praecipe But between themselves to many purposes they have in Judgment of Law severall Free-holds for the one of them may infeoff another of her part and make livery 10 E 4. 17. E. 3. 46. fol. 164. a. vide qu. Note a diversity inter descensum in capita in stirpes If a man hath issue two daughters and dyeth this descent is in capita viz. that every shall inherit alike But if a man hath issue two daughters and the eldest daughter hath issue three daughters and the yongest one daughter all these four shall inherit but the daughter of the yongest shall have as much as the three daughters of the eldest ratione stirpium and not ratione capitum for every daughter hath a severall root c. Men descending of daughters may bee Coparceners as well as women and shall joyntly implead and be impleaded Item est alia actio mixta quae dicitur actio Familiae hirciscundae locum habet inter eos qui communem habent haeredit ' c. Et locum habet ut videtur inter cohaeredes ubi agitur de proparte sororum vel inter alios ubi res inter partes cohaeredes dividi debeat sicut sunt plures forores quae sunt quasi unus haeres vel inter plures fratres qui sunt quasi unus haeres ratione rei quae divisibilis est inter plures masculos c. Bract. l. 2. fol. 66. 71 c. l. 5. fol 443. b. vide qu. Sunt aliae res haereditariae quae veniunt in partitionem quae â—um dividi non possunt conceduntur uni ita quod aliae cohaeheredes alibi de communi haereditate habeant ad valorem sicut sunt vivaria Piscariae parci vel saltem quod partem habeant pro defectu sicut secundum piscem tertium vel quartum vel secundum actâ—m tertium vel quartum retis Item in parcis secundam tertiam aut quartam damam Bract. l. 2. 76. fo 165. a. Regnum non est divisibile Praterea sceptrum Ilione quod gesserat olim Maxima natarum Priami Virg. 1. Aeneid If there be two Coparceners of certain lands with Warrant and they make partition c. the Warranty shal remain because they are compellable to make partition Tho. de Eberston in Foresta de Pickering had kept time our of minde a Woodward for keeping of the Woods parcel of that Manor and had the bark of all the Trees felled c. as belonging to his Manor and this was adjudged a good prescription Itin. Pickr 8 E. 3. Rot. 34. Sect. 243 244 245. If Coparceners make partition at full age and unmarried and of sanae memoriae of lands in fee simple it is good and firm for ever albeit the the values be unequall but if it be of lands intailed c. it shall binde the parties themselves but not their issues unless it be equall Or if any be Covert it shall binde the husband but not the wife or her heires It shall not binde the Infant c. Modus conventio vincunt legem Pacto aliquid licitum est quod sine pacto non admittitur Quilibet potest renunciare juri pro se introduct ' Conventio autem privatorum non potest publico juri derogare Aeiâ—neâ—ia semper est perfren da propter privilegium aetatis sed esto quod filia primogenita relicto nepote vel nepte in vita patris vel matris decesserit praeferenda erit soror antenata tali nepoti vel nepti quantuÌ„ ad Ecisnetiam quia mortem parentum expectant If there be divers Coparceners of an Advowson and they cannot agree to present the Law doth give the first presentment to the eldest and this privilege shall descend to her issue nay her Assigns shall have it and so shall her husband that is tenant by the Courtesie c. But it is otherwise of a partition in Deed by the act of the party Sic vide diversit ' fol. 166. b. Cujus est divisio alterius est electio Dedi vobis possessionem quam dividetis sorte Numb c. 26. Sect. 247. If one Coparcener maketh a lease pur ans yet a Writ of Partition doth lie but otherwise is it if one or both make a lease for life because non in simul pro indiviso tenent and the writ of Partition must be against the Tenant of the Freehold 11 H. 4. 3. F.N.B. 62. g. And if one Coparcener disseise another a Writ of Partition doth not lie c. for that non pro indiviso tenent c. 4 H. 7. 9. 11 Ass 23. If two Coparcerners have two Manors by descent and they make partition that the one shall have one Manor for one year and the other the other Manor for this year and so alternis vicibus to them and their heirs this is a good partition Temps E. 1. partit 21. F.N.B. 62. 1. Of
partitions in Law some be by act in Law without Judgement and some be by Judgement and not in a Writ de Partit fac If there be Lord three Coparceners Mesnes and Tenant and one Coparcener purchase the Tenancy this is not onely a partition of the Mesnalty being extinct for a third part but a division of the Seigniory Paramount for now he must make severall Avowries 26 H. 6. 7. If one Coparcener make a Feoffment in fee of her part this is a severance of the Coparcenary and severall Writs of Praecipe shall lie against the other Coparcener and the Feoffee 37 H. 6. 8. So it is if two Coparceners have issue and dye 17 E. 3. 15 16. Et si asc ' des parceners sont enget ou disturbe de sa seisin per ses auters parceners ou plusor al disseisee viendranâ— ass per several pleint sur les parceners recovera mes nemy a tener en severalty mes en common solonque ceo que avant le fist c. Britton fol. 112. a. And this seemeth reasonable for he must have Judgment according to his pleint and that was of a moity and not of any thing in severalty and the Sheriff cannot have any warrant to make any partition in severalty or by Metes and Bounds Lib. 6. fol. 12 12. Morrices Case Sect. 248. Si parceners ne voilont agere a partition dest fr. enter eux donque lun poit aver breve partition fac envers les auters c. le vic en son propter persona alera a les terres c. per le serement de 12 loial homes de son bail c. ilserra partit enter les parties c. There is a book in the Exchequer called Dooms-day dies judicii Sententia ejusdem libri inficiari non potest vel impune declinari ob hoc nos eundem librum judiciarum nominamus Sheriffe is the Reve of the Shire Praefectus Satrapiae Provinciae or Comitatus habet triplicem custodiam 1 Vitae Legis 2. Vitae Reipublicae Vicecomes dicitur quod vicem Comitis suppleat Marculphus saith This Office is Judiciaria Dignitas Lampridius That it is Officium Dignitatis Forter saith Quod Vicecomes est nobilis Officiarius Fortesc c. 24. R. 2. cap. Verum quod modo vocatur Comitatus olim apud Britones temporibus Romanorum in Regno isto Bâ—tan vocabatur consulatus qui modo vocantur Vicecomites tunc temporis vice-consules vocabantur ille verò dicebatur vice-consul qui consule absente ipsius vice supplebat in jure in foro Lambert fol. 129. 12. Bayliff is an Officer concerning the administration of Justice of a certain Province Flet. l. 2. c. 67. Sect. 249 250. Et de la partition que l' vicount ad issint ft. il fer notice la Justices south son seale les seales de chesâ— ' de les 12. c. this c. doth imply That the principal Judgment upon the partition so returned is Ideo consideratum est per Cur ' quod partitio firma stabilis in perpetuum teneatur Lib. 11. fol. 40. Metcalfs Case Partition per agreement per curer parceners poit estre auxibien per parol sans fait come per fait But a partition between joint-tenants is not good without Deed albeit it be of lands and that they be compellable to make partition by the Statute of 31 H. 8. c. 10. and 32 H. 8. c. 32. because they must pursue that act by Writ de Partit fac And a partition between joynt-tenants without Writ remains at the Common Law which could not be done by Parol And where books say That joynt-tenants made partition without Deed it must be intended of Tenants en Common and executed by livery S. 290. 3 H. 4. 1. lib. 6. 12 13. 2 Eliz. Dyer 179. 28 H. 8. Dyer 29. 1 Mar. Dyer 98. Nota between joynt-tenants there is a two fold privity viz. in estate and in possession between tenants in common there is a privity onely in possession but parceners have a threefold privity viz. in estate in person and in possession Sect. 251 c. A rent may be granted for owelty of partition without Deed. So it is of Common of Estovers or a Corody or a Common of Pasture c. albeit they lie in grant c. But if rent be granted out of other lands then descended to the Coparceners then there must be a Deed 1 Mar. Dyer 18. Sect. 253 c. Mes tiel rent eÌ„ rent charge de common droit eroe reserve pur egality de partit Et nota that Reservation here is taken for a Grant I. S. seised of lands in fee hath issue two daughters R and A. Bastard eigne and Mulier puisne and dyeth R. and A. enter and make partition A. and her daughter are concluded for ever 21 E. 3. 34 35. 11 Ass 23. Sect. 256 257 358. 2 parceners prent Barons si parit fait perenter eux * soit egall c. donque il ne poit estre apurs defeater c. Judicicis officium est us res ita tempera rerum Quaerere quaesito tempore tutus eris An unequall partition in the Chancery shall not bind an Infant F.N.B. 256 259 260 c. But it may be avoyded either by Scire sac in the Chancery or by a Writ de partit fac at the Common Law 21 E. 3. 31. A partition made by the Kings Writ de partit fac by the Sheriff by the Oath of 12 men and Judgement thereupon given shall binde the Imfant though his part be unequal causa qua supra so 171. Sect. 259. Si asc ' fait feoffment grant release confirmation obligation ou auter escript ' soit fait per asc ' devant son plein age sc 21 ans ou si asc ' deins tiel age soit Bayliff ou receivor a a sc ' home tout sera pur nient c. Auxi home devant le dit age ne sera my jute en Enquest c. Fait is an instrument consisting on three things viz. Writing Sealing and Delivery comprehending a Bargain or Contract between party and party man or woman Obligation is commonly taken in the Common Law for a Bond containing a penalty with condition for payment of Mony or to do or suffer some act or thing c. And a Bill is most commonly taken for a single Bond without condition f. 172. a. An Infant may binde himself to pay for his necessary Meat Drink Apparel necessary Physick c. and likewise for his good teaâ—â—ing and instruction whereby he may profit himself afterâ—ards But if he binde himself in an Obligation or other Writing with a penalty for the payment of any of these that Obligation shall not binde him 18 E 4. 2. lib. 9. fol. 87. Pinchons case Also other things of necessity shall binde him as a presentation to a Benefice for otherwise the laps shall incur against him And it an Infant be Executor upon paiment
of any debt due to the Testator he may make an Acquittance but in thaâ— case a Release without payment is voyd and generally what soever an Infant is bound to doe by Law the same shall binde him albeit he doth it without sute of Law 2 M. Dyer 104. An action of account doth lie against a Bayliff that hath administration and charge of lands goods c. for the profits which he hath raised or made or might by his industry or care have reasonably raised or made his reasonable charges and expences deducted Brit. fol. 62. 70. 41 E. 3. 39. An Account against a Receiver is when one receiveth money to the use of another to render an account but upon his account he shall not be allowed his expences and charges Except in some cases As if two joynt Merchants occupy their Stock c. in common one of them naming himself a Merchant shall have an account against the other naming him a Merchant and shall charge him as Recep ot denariorum ipsius B. ex quacunque causa contractu ad comm unem utilitatem ipsorum A. B. provenient sicut per legem mercatoriam rationabiliter monstrare potuit 43 E. 3. 31. 30 E. 1. Account 127. 10 H. 7. 16. lib. Intrat 17 18 19. F.N.B. 118. So as there be but three kindes of Writs of Account viz. 1. Against one as Guardian 2. Against one as Bayliff And 3. as Receiver F. N. B. 219. d. And to maintain an action of account there must be either a privity in deed by the consent of the party 2 Mar B. Account 89. F. N. B. 117. Pl. Com. 542. 2 H. 4. 12. 4 H. 7. 6 c. or a privity in law ex provisione legis as against a Guardian c. Minor surare no potest Bract. l. 5. f. 340. b. For an infant cannot make his Law of Non-Summons 13 E. 3. Ley 50. and therfore the default shall not prejudice him 2. Mar. Dyer 104. 105. But an infant of the age of 12 yeares shall take the oath of allegiance Vide Sect. 85. 91. An infant cannot upon his oath make his Law in an actioâ— of debt 1. H 7. 25. 15. E. 4. 2. and the husband and wife of full age for the debt of the wife before the converture shall make their Law 9. E. 4. 24. 15 E. 4. 2. Grant is a conveyance of a thing which cannot pass without Deed as advowsons rents c. Lib. 3 f. 63. Lincol. Coll. c. Sect. 260 261. The reversion expectant upon an estate taile is of no account in Law for that it may be cut off by the Tenant in Taile Tres. in fee S. and fee Taile discend al 2. files c. If the youngest daughter alien part of the Lands in Fee simple and dyeth so as a full recompence for the lands entailed descends not to her issue she may waive the taking of any profits thereof and enter into the Land entailed for the issue in taile shall never be barred without a full recompence though there be a warr in Deed or in Law descended Fo 173. a. If a man be seised of three Manors of equall value in Fee and taketh wife and chargeth one of the Manors with a reâ—â— charge and dyeth she may by the provision of the Law take a third part of all the Manor and hold them discharged bâ— if she will accept the entire Manor charged it is holden that she shall hold it so 26. E. 3. Dower 133. 18. H. 6. 17. A partition of lands intailed between perceners if it be equall at the time of the partition shall bind the issues in taile for ever albeit the one doe alien her part Dyer 1. Mar. 98. Sect. 262. When the privity of the estate is destroyed by the Feoff of one parcener upon eviction of a moity by force of an entaile against the other she shall not enter upon the alienee But in the case that Littleton putteth of disseisin of an Infant c. when the privity of the estate remaineth and the part of one is evicted she shall enter and hold in Coparcenary with her other copercener and so it is in the case of an exâ—hange 15. E. 4. 3. a. per. Littleton Lib. 4. 221 c. Bastards c. If the whole estate in part of the pâ—â—pâ—â—ty be evicted that shall avoid the partition in the whole be it of a Manor that is entire or of acres of ground c. that be severall for the partition in that case implyeth for this purpose both a warr and a condition in Law and either of them is entire and giveth an entry in this case into the whole 13. E. 4. 3. 42. Ass 22. Lib. 4. ante c. Also if any estate of freehold be evicted from the Coparcener in all or part of her pâ—â—pâ—â—ty it shall be avoided in the whole vide libr. nota Fo. 170. a ex grat If but part c. be evicted as an estate in taile or for life leaving a reversion in the Copercener Where one Copercener taketh benefit of the condition in Law she defeateth the partition in the whole But when she vouched by force of the warr in Law for prrt the partition shall not be defeated in the whole but she shall recompence for that part Sic nota diversit 5 E. 3. Tit. Voucher 249. Also there is another diversity between a recovery in value by force of the warranty upon the exchange upon the partition for upon the exchange he shall recover a full recompence for all that he loseth but upon the pahtition she shall recouer but the moity or halfe of that which is lost to the end that the losse may be equall There are more and greater privities in case of partition in persons bloud and estates than there is in exchanges 19. H. 6. 26. 18. E. 2. t. aid 171. When the whole Privity between Coparceners is destroyed there ceaseth any recompence to be expected either upon the condition in Law or warranty in Law by force of the partition Fo. 174. a. If one coparcener maketh a Feoffment in Fee and after her Feoffee is impleaded and voucheth the Feoffer she may have aid of her coparcener to deraign a Warrant Paramount but never to recover pro rata against her by force of the warrant in law upon the partition for by her alienation she hath dismissed her self to have any part of the land as Parcener And as parcener she must recover pro rata c. 31. E. 3. 24. 11. H. 4. 22 23. And yet in some case the Feoffee of one coparcener shall have aid c. and therefore if there be two coparceners and they make partition and the one of them infeoffs her Son and Heir apparent and dyeth the Son is impleaded he shall pray in aid c. for that the warranty between the Mother and the Son is by Law adnulled and therefore the Law giveth the Son albeit he be in by Feoffment to pray in aid
of the other parcener to deraign the Warrant Parramount wherein note the great Equity of the Common Law 43. E. 3. 23. Pl. Com. 32. E. 1. tit Aid 178. But if a man be seised of lands in fee and hath issue two daughters and make a gift in tail to one of them and dye seised of the Reversion in fee which descends to both Sisters and the Donee of her issue is impleaded she shall not pray in aid c. either to recover pro rata or to deraign the Warrant c. for that the other Sister is a stranger to the State tail whereof the eldest was sole tenant and never partition was or could be thereof made 2 H. 6. 16. Albeit it is in the power of the Tenant tail to cut off the Reversion yet if the Infant enter before it be cut off the Law hath such Consideration of this Reversion that she that loseth it shall enter into her Sisters part and hold with her in Coparcenery for that the privity between them was not wholly destroyed Sect. 263 264. Si le part dn parcener soit defeat per loial entre c. el poit enter occupier ouesque les auter parceners c. eux compeller de faire novell partition c. Breve de partit fac gift pur parceners tantsolement Et ciel breve gift envers tenant per le curt ' encore il men ne poit auÌ„ tiel breve Albeit that the Tenant by the Curtesie be an estranger in blood yet the Writ de partit fac clearly lies against the Tenant per Curtesie because he continueth the state of Coparcenery 3. E. 3. 47. Also if two Coparceners be and one doth alien in fee they are Tenants in Common and severall Writs of Praecipe must be brought against them and yet the parcener shall have a Writ of partition against the alienee at the Common law 28 E. 3. 5. If there be three Coparceners and the eldest taketh husband and the husband purchase the part of the yongest he and his wife shall have a Writ of Partition against the middle Sister at the Common Law because he is seised of one part in the right of his wife who is a parcener Dyer 1 Mar. 98. F. N. B. 52 Regist Since Littleton wrote by the Statute 31 H. 8. c. 1. 32 H. 8. cap. 32. vide Sect. 290. one joynt-tenant or tenant in common may have a Writ of Partition against the other and therefore the alienee of one parcener may have a Writ of Partition against the other parcener because they are Tenants in common So Tenant per Curtesie shall have a Writ c. upon the Statute for albeit he is neither joynt-tenant nor tenant in common for that a Praecipe lyeth against the parcener and tenant per Curtesie yer he is in equall mischief as another tenant for life Br. tit Partit 141. Dyer 3 M. 128. A. 7 Eliz. 243. CHAP. II. Parceners by Custome Sect. 265 c. PArcenery per le Custome est lou terres discend a les fits en Gavelkind c. in Wallia haereditas partibilis est inter haeredes masculos Sect. 212. Stat. Walliae 12 E. 1. Sons are parceners in respect of the Costom of the fee or inheritance and not in respect of their person as Daughters and Sisters c. be Bracton l. 5. fo 428. Hotchpot est de mitt les terres leigne soer en frankmarriage les terres del auter soer en fee simple ensemble donques partit serre fert c. Vide Sect. 6. 266. c. There must be a Custom alleaged in some County c. to inable the wife or children to the Writ de rationabile parte bonorum Regist 142. 34 E. 1. Detin 56. 7 E. 4. 21. But such as be reasonably advanced by the Father c. shall have no further part of the goods for the words of the Writ be Nec in vita patris promoti fuerunt 3 E. 3. Detin 156. 40 E. 3. 18. fo 176. b. vide nota Sect. 268. and 269. After this putting into Hotchpot and partition made the lands given in Frankmarriage are become as the other lands which are descended from the common Ancestor and of these lands if she be impleaded she shall have aid c. So if he Coparcener that hath a rent granted to her for owelty of artition hath the rent as it had descended to her c. Brit. cap. 72. 10 E. 3. 37. 29 Ass 23. Et tout foits sur tiel partit ' les terres dones en frankmarriage demurgent a les Donees a lour heires solonque le forme de le done Car lauter parcenter navoit riens de ceo c. vide lib. so 177. b. Quod est inconveniens aut contra rationem non est permissum in lege Sect. 271 272 273. Dones en frankmarriage fueront per la common ley deuâ—â—â— lest west 2. tout temps puis ad este continue c. The gifts doe continue but not the estates 12 H. 4. 11. Item tiel mitter en Hotchpot c. est lou les auters terres ou tenements que ne fuer ' Dones en frankmarriage descend de les Donors en frankmarriage tousolement c. Si les terres dones in frankmarriage sont de tant egall va pur le an que le remnant sont ou de pluis valtie en vaine tiels tres c. ser mis en Hotchpot c Lex non praecipit inutilia inutilis labor stultus The Law shall adjudge of the value as it was at the time of the partition fo 179. a. vide nota unless the land be improved or decaid by the proper act or default of the parties Sect. 174 c. Nota que terres ne ser mis c forsque ou ils discend en fee simple car de terres discendus en fee taile partit serra fait sicome nul tiel done en frankmarriage ad este fait for the issue claimeth per formam doni voluntas donatoris c. observetur If the Ancestor infeoff one of his daughters of part of his land or purchase lands to him and her and their heires or giveth her part of his lands in taile yet she shall have a full part of the remnant of the lands in fee simple for the benefit of putting c. into Hotchpot is only appropriate to a gift in frank-marriage quia maritagium cadit in partem which shall be accounted as parcell of her advancement 13 E. 2. tit Tail Bract. l. 2. fo 77. Sect. 276. Nota that modus convent uicunt legem consensus tollit errorem But if partition be by the Kings Writ then every parcener must have his part 24 H. 3. tit partit 19. CHAP. III. Of Joynt-tenants Sect. 277. THere be joynt-tenants by other Conveyances than Lîttleton here mentioneth as by Fine Recovery Bargain and Sale Release Confirmation c. So there
the reversion to the grantee Vide Westcotes Case lib. 2. fo 60 61. If lessee for life granteth his estate to him in the reversion and to a stranger the joynture is severed and the reversion executed for the one moity by the act of the Law 7 H. 6. If a man make a lease for life and grant the reversion to two in fee the lessee granteth his estate to one of them they are not joynt-tenants of the reversion for there is an execution of the estate for the one moity and an estate for life the reversion to the other of the other moity Si home voet lesser terre a un auter par fait ou sans fait nient fesant mention que estate il avoit fert livery c. en ceo cas le lesse ad estate pur tinere de sa vie Quaelibet concessio fortissimè contra donatorem interpretanda est Legis autem constructio non facit injuriam Pl. Com. in Throgmortons case If a lease be made to two habendum to the one for life the remainder to the other for life this doth alter the generall intendment of the premises Et semper expressam facit cessare tacitum 30 H. 8. tit Joyntenans Br. 53. Dyer fo 361. Pl. Com. 100. Nota where the grant is impossible to take effect according to the letter there the Law shall make such a construction as the gift by possibility may take effect Benignae faciendae sunt interpretationes cartar propter simplicitatem laicorum ut res magis valeat quam pereat fo 183. b. Cognitio legis est copulata complicata Tunc unumquodque scire dicimur cum primam causam scire putamus scire autem propriè est rem ratione per causam cognoscere Arist 1 Metap Virg. 1. Georg. Felix qui potuit rerum cognoscere causas If a gift be made to two men and the heirs of their two bodies begotten the remainder to them two and their heirs they are joynt-tenants for life tenants in common of the estate taile and joynt-tenants of the fee simple in remainder for they are joynt purchasers of the fee simple and the remainder in fee is a new created estate but the reversion remaining in the Donor or his heirs is a part of his ancient fee simple Dyer 14 Eli. 309. Sect. 284. Lou terre eÌ„ done a. 2. females a les heires de lour 2. corps ingendres It hath been said that the husband c. should be Tenant pur le Curt ' living the other sister 17 E. 3. 51. 78. and that the issue of the one should recover the moity in a Formedon living the other sister 44 E. 3. Taile 13. 7. H. 4. 16. Corbets c. l. 1. fo 8. 84. 6. 4. Mar. Dyer 145. But Littleton hath resolved this doubt Vid. fo 183. a. If a man give lands to two men and one woman and the heires of their three bodies begotten they have severall inheritances For the Law will never intend a possibility upon a possibility Fo. 184. a. Sect. 285. If a fine be levied to two and to the heirs of one of them by force whereof he is seised he that hath Fee dyeth and after the joint-tenant for life dieth and an estranger abates in this case the heir may either suppose the Fee simple executed and have an Ass of Mordanc ou briefe de droit or he may have a scire fac to execute the fine or maintain a Writ of intrusion by which the heir supposeth that the Fee was not executed 11 H. 4. 55. F.N.B. 196. and 219. and he shall term it a remainder and yet when Land is given to two and to the heirs of one of them he in the remainder cannot grant away his Fee simple Sect. 286. 2 Jointenants de terre c. celuy que survesquist claima ad la terre per le survivor nemy ad ne poit de ceo claimer rien per discent de son compagnon c. Mes auterment est de parceners c. and the diversity is for that the Survivor doth claime above the grant c. and the heir by discent under c. If two joyntenants be of a terme and the one of them grant to I.S. that if he pay to him 10. l. deut Mich. that then he shall have his terme the grantor dyeth before the day I.S. payes the summe to his executor at the day yet he shall not have the terme but the survivor shall hold place for it was but in nature of a communication but if he had made a Lease for years to begin at Mich. it should have bound the Survivor 14 Pl. 8. 22. Pl. Com. 263. b. Hales case Ius accrescendi praefertur oneribus alienatio rei praefertur juri accrescendi If one joyntenant in Fee simple be indebted to the King and dieth no extent shall be made upon the land in the hands of the Survivor 40 Ass 36. F. N. B. 149. Pl. Com. 321. If a recovery be had against one joyntenant who dyeth before execution the Survivor shall not avoid this recovery because that the right of the moity is bound by it If one joynt-tenant in Fee take a Lease for years of a stranger per ft. indent and dyeth the Survivor shall not be bound by the conclusion because he claims above it c. If two joynt-tenants be in Fee and the one make a Lease for years reserving a rent and dyeth the surviving Feoffee shall have the reversion by survivor but not the rent because he claimeth in from the first Feoffer which is paramount the rent Dyer M. 2. 3. El. 187. Lib. 1. f. 96. and Lib. 6. fo 78 79. If one joynt-tenant granteth a rent charge out of his part and after release to his joint companion and dieth he shall hold the land charged because he claimeth not by the survivor in as much as the rel ' prevent the same 33 H. 6. 3 a. 9 El. Dyer 263. fo 185. a. But all men agree that if A. B. and C. be joynt-tenants in Fee and A. charge his part and then release to B. and his heires and dye that the charge is good for ever for B. cannot be in from the first Feoffer because he hath a joynt companion at the time of the release made and severall Writs of praec must be brought against them 37 H. 8. tit alienation Br. 31. 10 E. 4. 3. b. Sect. 287 Jus accrescendi prefertur ultimae voluntati Although an inâ—ant est unum indivisible tempore quod non eÌ„ tempus nec pars temporis ad quod tamen partes temp connectuntur and that instans est finis unius temporis principium alterius yet in consideration of Law there is a priority of time in an instant as here the survivor is preferred before the devise which Littleton distinguisheth by these words post mortem per mortem Pl. Com Fulmerstons case Two femes ioynt-tenants of a Lease for years one of
them taketh husband and dyeth yet the terme shall survive for though all chattels realls are given to the husband if he survive yet the survivor between the joynt-tenants is the elder Title and after the marriage the feme continued sole possessed for if the husband dyeth she shall have it and not the executors of the husband but otherwise it is of personall goods fol. 185. b. vide c. Inprimis autem debet quilibet qui testaverit dominum suum de meliore re quam habuerit recognoscere postea ecclesiam de alia meliore c. Fleta lib. 2. cap. 50. Sect. 288. Chesc ' joint est sei del terre que il tient joint per my per tout sic totum tenet nihil tenet sc totum conjunctim nihil per se separatim and albeit they are so seised yet to divers purposes each of them hath but a right to a moity as to enfeoffe give or demise or to forfeit or lose by default in a Praec 40. Ass 79. Brit. cap. 35. A communi observantia non est recedendum If two joyntenants be and both they make a feoffment in Fee upon condition and that for breach thereof one of them shall enter into the whole yet he shall enter but into a moity because no more in judgment of Law passed from him and so it is of a gift in taile or a Lease for life c. Pl. com Brownings c. If two joyntenants make a feoffment in fee and one of the feoffors die the feoffee cannot plead a feoffment from the survivor of the whole because each of them gave but his part but otherwise it is on the part of the feoffees 14 E. 4. 5. fol. 186. a. Two joyntenants de terres c. And one of them by Deed indentâ—â— bargain and sell the Lands and the other joyntenant dyeth and then the Deed is inrolled there shall passe but a moity 6 E. 6. Tit. Faits inroll 9. Br. Sect. 289. En grant de rent charge per joint c. les tenements demurg touts foits come ils fuer adevat sans ceo que asc ' ad asc ' drt. dauÌ„ asc ' parcel de les tenem fo rs eux me les tenem sont en tiel plite come ils fueront devant le charge c. mes ou leas eÌ„ ft. per un joint a un aut per terme de ans c. maint per force de lease le lessee ad drt. en m. la terre se de tout ceo que a son lessor affiert dauÌ„ ceo per force de lease durant son Feme Fo. 186. b. If two joyntenants be of an Advowson and the one present c. and his Clark is admitted and instituted this in respect of the privity shall not put the other out of possession but if that joyntenant that presenteth dyeth it shall serve for a tittle in a Qu. Imp. brought by the survivor 11 H. 4. 54. 10 E. 4. 94. 1 H. 7. 1. b. 9 El. Dyer 259. 6 E. 4. 10. b. Doct. St. 116. F. N. B. 34. u. But yet if one jointenant or tenant in common present or if they present severally the ordinary may either admit or refuse c. such a presentee unlesse they joyne in a presentation and after the six moneths he may present by lapse But if two coperceners be c. and they cannot agree to present the eldest shall present and if her sister doth disturbe her she shall have a qu. imp and so shall the issue and the Assignee of the eldest and yet he is tenant in common with the youngest and so tenant per Curtesie of the eldest shall present 38 H. 6. 9. 5 H. 5. 10. F.N.B. 34. Sect. 290. Jointenants fils violont faire partition c. But this partition must be by Deed. Vide Sect. 249. 318. But jointenants for years may make partition without Deed 18 Eliz. 350. b. Dyer Since Littleton wrote joyntenants and tenants in common are compellable to make partition by writ Stat. 31 H. 8. c. 1. 32 H. 8. c. 32. Sect. 264. 247. 259. F.N.B. 9. b. 62. b. lib. 6. Fo. 12 13. Morrices c. If one joyntenant or tenant in common disseise another and the disseisee bring his Ass for the moity though the plaintiffe prayeth it yet no judgment shall be given to hold in severaltie for then at the common Law there might have been by compulsion of Law a partition bteween Joyntenants and tenants in common and by rule of Law the plaintiffe must have judgement according to his plaint or demand 187. a. Sect. 291. c. Baron feme sont forsq un person en ley vir axor sunt quasi unica persona quia caro una sanguis unus Lib. 4. fo 68. Tokers c. Pl. com 483. Nicholls ca. If an estate be made to a man and a woman and their heirs before marriage and after they marry the husband and wife have moities between them If a Feoffment be made to a man and a woman and their heires with warranty and they entermarry and after are impleaded and vouch and recover in valew moities shall not be between them for though they were sole when the warranty was made notwithstanding at the time when they recovered and had execution they were husband and wife in which time they cannot take by moities Fo. 187. b. Vide c. A right of Action and a right of entry may stand in jointure Vide Sect. 302. F.N.B. 193. k. A right of action or a bare right of entry cannot stand in joynture with a freehold or inheritance in possession and therefore if the husband make a Feoffment of the moity this was a discontinu of that moity and the other joyntenant remained in possession of the freehold and inheritance of the other moity which for the time was a severance of the joynture Statute of 32 H. 8. ca. 1. If two joyntenants be of a rent and one of them disseise the tenant of the Land this is a severance of the joynture for a time for the moity of the rent is suspended by unity of possession and therefore cannot stand in joynture with the other moity in possession Pl. com 419. Nihil de re accrescit ei qui in re quando jus accresceret habet A State of Freehold cannot stand in joynture with a terme for years nor a reversion upon a Freehold with a Freehold and inheritance in possession Neither can a seisin in the right of a politick capacity stand in joynture with seisin in a naturall capacity 37 H. 8. 8. 3 E. 4. 10. Fo. 188. a. Vide c. In all cases where the joyntenants pursue one joynt remedy and the one is summoned and severed and the other recover he that is summoned c. shall enter with him but where their remedies be severall there the one shall not enter with the other till both have recovered Littleton cap. Remitt the last
one that hath a former Right F. N. B. 35. Right and wrong cannot consist together 194. a. Sect. 307. Et en asc ' case un release vera per voy dextinguisment aydera le joyntenant a que le release ne fuit fert c. sicome un home soit disseisee le disseisor fort feoffment a 2. homes in fee si le disseisee release per son fâ—rt a un des feoffees cel release vera a ambideux c. pur ceo que les feoffees ont estate per la ley scil per feoffment nemy per tort fert a nulluy c. The reason of the diversity between the desseisors and their feoffees is for that the feoffees coming in by Title and Purchase are intended in Law to have a Warranty which is much esteemed in Law and therefore lest the Warranty should be avoided the Release shall inure to both the feoffees in favour of purchasors and so the right and benefit of every one saved And therefore in ancient time if the feoffee of a disseisor had continued in seisin quietly a year and a day the entry of the disseisee had not been lawfull upon him 20 H. 3. Ass 432. Sect. 311. Note that in reall actions and in actions also that are mixt with the personalty Tenants in common shall sever because they have severall Freeholds c. Come si 2 tenants in common sont disseisees ils doient aver 2. Ass pur ceo que ils fueront seisees per several titles c. Vide lib. fol. 195. b. Auterment est de joyntenants Sect. 313. Quant a suer des actions que touchant le realty y sont diversities perenter parceners que sont eins per divers discents tenants in common Vide Sect. 241. Sect. 314. If two Tenants in common be and they grant a rent of 20. s. per annum out of their land the Grantee shall have two rents of 20. s. Pl. Com. Hill and Granges Case 171. vide Sect. 219. But if they two make a gift in taile a lease for life c. reserving 20. s. rent to them and their heirs they shall have but one 20. s. for they shall have no more then themselves reserved And albeit the reservation of rents severable be in joynt words yet in respect of the severall reversions the law makes thereof a severance fol. 197. a Lex spectat naturae ordinem vide Sect. 129. lex neminem cogit ad vana seu inutilia lib. 5. fol. 21. The law wils that in every case where a man is wronged and endamaged that he shall have remedy Aliquid conceditur ne injuria remaneret impunita quod alias non concederetur 31 E. 3. 35. 3 E. 3. 19. a. Tenants in common shall joyn in a Qu. imp because the Presentation to the Advowson is entire 5 H. 7. 8. 33 H. 6. 11. 6 E. 4. 10. Also Tenants in common of a Seigniory shall joyn in a Writ of Right of Ward and Ravishment of Ward for the body because it is intire 6 H. 4. 6 7. If two Tenants in common be of the Wardship of the body and one doth ravish the Ward and the one Tenant in common releases to the Ravisher this shall goe in benefit of the other Tenant in common and he shall recover the whole and the release shall not be any barre to him And so it is if two Tenants in common be of an Advowson and they bring a Qu. imp and the one doth release yet the other shall sue forth and recover the whole Presentment Two Tenants in common shall joyn in a Detinue of Charters and if one be Nonsuit the other shall recover It is said that Tenants in common shall joyn in a Warr. Chartae but sever in Voucher 18 E. 3. 56. Sect. 315. Item Tenants in common averont un action joynt-tenement recoveront joynt-tenement lour damages quant l' action est en le personalty nemy en le realty c. Note a diversity between a Chatel in possession and a personall chose in action belonging unto them As if two Tenants in common be of land and one doth a trespasse therein of this action they are joyntenants and the survivor shall hold place 22 H. 6. 12. S. 319 320. But if two Tenants in common be of goods as of an horse c. there if one dye his Executors shall be Tenant in common with the survivor fol. 198. a. If two Tenants in common be of an Advowson and a stranger usurp so as the right is turned to an action and they bring a Writ of Qu. imp which concerns the realty the six months passe and the one dyeth the Writ shall not abate but the survivor shall recover otherwise there should be no remedy to redresse this wrong And so it is of Coparceners and this is one exception out of our Authors rule 14 H. 4. 12. 38 E. 3. 5. 37 H. 6. 9. b. 10 El. Dyer 279. F.N.B. 35. Pl. Com. Seignieur Barkleys Case But if three Coparceners recover land and damages in an Assize of Mordane ' albeit the judgment be joynt that they shall recover the land and the damages yet the damages being accessory though they be personall doe in judgment of Law depend upon the Freehold being the Principall which is severall And though the words of the judgment be joynt yet shall it be taken for distributive And therefore if two of them die the entire damages doe not survive but the third shall have Execution according to her portion and this is another Exception 14 E. 3. Execution 75. 45 E. 3. 3. b. But if all three had sued Execution by force of an Elegit and two of them had dyed the third should have had the whole by survivor till the whole damages be paid Sect. 317 318. En avowry pur rent tenants en common covient sever car ceo eÌ„ en le realty come le Ass eÌ„ supra Tenants en common poient bien faire partition enter eux sils voilont c. Sect. 321. Lou divers persons ont chateux reals ou personals en common pur divers Titles si lun de eux mor ' ses executors tienderant occupier ceo ovesque eux que survesquont c. Sect. 322 323. Albeit one Tenant in common take the whole profits the other have no remedy in Law against him for the taking of the whole profits is no Ejectment but if he drive out of the land any of the Cattel of the other Tenant in common or not suffer him to enter and occupy the land this is an Ejectment c. Whereupon he may have an Eject firmae for the one moity and recover damages for the entry but not for the mean profits fo 199. b. Note a diversity between actions which concern Right and Interest as of Eject ' firmae Eject ' de gard quare ejecit infr Term. of a Chattel reall upon an expulsion or Ejectment and actions concerning the bare taking of
the profits rising out of the land or doing of Trespasse upon the land as here by the Examâ—naâ—â—â—â—s do appear for the right is several and the taking of the profits in common 21 E. 4. 11. 22. 22 H. 6. 50. 58. 10 H. 7. 16. F.N.B. 117. a. The second diversity is between Chattels reals that are apportionable or severable as leases for years Wardship of Lands Interest of Tenements by Elegit Statute Merchant Staple c. of Lands and Tenements and Chattels reals entire as Wardship of the body and a Villain for years c. for if one Tenant in common take away the Ward or Villain c. the other hath no remedy by action but he may take them again Another diversity is between chattels reals and chattels personals for if one Tenant in common take all the chattels personals the other hath no remedy by action but he may take them again And herein the like Law is concerning chattels reals entire and chattels personals for this purpose But of chattels entire as of a Ship Horse or any other entire chattel real or personal no survivor shall be between them that hold them in common 10 H. 4. Trespasse 178. 11 H. 4. 3. And Tenants in common shall not joyn in an Eject ' firme c. for that such actions concern the Right of Lands which are several 21 E. 4. 11. 12. fo 200. a. If two Tenants in common be of a Dove-house and the one destroy the old Doves whereby the flight is wholly lost the other Tenant in common shall have an action of Trespass and he cannot plead in barre Tenancy in common 47 E. 3. 22. b. And so it is if one Tenant in common c. destroy all the Deer in a Park c. 4 E. 2. Trespasse 233. And so it is if one Tenant in common carry away the meer stones c. 1 H. 5. 1. 2 H. 5. 3. And if two Tenants in common be of a folding and the one of them disturb the other to erect Hurdles c. 13 E. 3. Trespass 212. 18 H. 6. 5. If two several owners of houses have a River in common c. if one of them corrupt the Water River the other shall have an action upon his Case 13 H. 7. 26. If two Tenants in common or joyntenants be of an house or Mill and it fall in decay and the one is willing to repair the same and the other will not he that is willing shall have a Writ de reparatione fac pro bono publico F. N. B. 127. All those Books which affirm that an action of Account lieth by one Tenant in common or joyntenant against another must be intended when the one maketh the other his Bayliff for otherwise never his Bayliff to render an Account is a good plea F.N.B. 118. 1. 10 H. 7. 16. 2 E. 4. 25. Westm 2. cap. 23. If there be two Tenants in common of a Wood Turbary Piscary c. and one of them doth waste against the will of his companion his companion shall have an action of Waste vide lib. fo 200. b. Nota. Some do hold that an action of Waste doth not lie upon the Statute W.C. 23. against Tenant in common c. for destroying the whole flight of Doves 47 E. 3. 22. 50 E. 3. 3. Note that one Tenant in common may infeoff his companion but not release because the Freehold is several Joyntenants may release but not infeoff because the Freehold is joynt but Coparceners may both infeoff and release because their seisin to some intents is joynt and to some several Sect. 324. Quant un home voile merrer un feoffment fait a luy ou un done en taile ou lease pur vie d'ascun terres c. la il dirra par force de quel feoffment c. il fuit seisee c. Mes lou un voile plead un lease ou grant fait a luy de chattel real ou personal la il dirra per force de quel il fuit possesse c. When a man pleads a lease for life c. which passeth by livery he is not to plead an entry for he is in actuall seisin by the livery it self Otherwise it is of a lease for years CHAP. V. Of Estates sur Condition Sect. 325. COnditio dicitur cum quod in casum incert ' qui potest tendere ad esse aut non esse confertur Condic ' est 2 ex 1. Facti i. e. upon a condition expressed by the party in legal terms of Law 2. Juris i. e. Tacitè created by law without any words used by the party Littleton subdivideth Condition in Deed into Condition precedent of which it is said Condic ' adimpleri debet priusquam sequatur effectus and Condition subsequent Again of Condition in Deed some be Affirmative and some Negative and some in the Affirmative which imply a Negative Some make the estate whereunto they are annexed voidable by Entry or Claim and some make the estate void ipso facto without entry c. Also of Condition in Deed some be annexed to the rent reserved out of the land and some to collateral acts c. some be single some in the conjunctive some in the disjunctive Mirror cap. 2. 8. 15. 17. fol. 101. b. Sur Condic ' en fait eÌ„ sicome un home per fait indent infeoffa un auter in fee render certain rent c. Here Littleton putteth one Example of six several kindes of Condition 1. Of a * Condition * single in Deed. 2. Of a Condition subsequent to the estate 3. Of a Condition annexed to the rent And 4. a Condition that defeateth the estate 5. A Condition that defeateth not the estate before entry And 6. a Condition in the Affirmative which implyeth a Negative as behind or unpaid implyeth a Negative viz. not paid Bendloes en Trespass 5 Mar. Et en cest case si le rent ne soit pay c. The Land is the principall debtor for the rent issueth out of the Land and that is the place of demand appointed by Law and the demand must ever be made at the most notorious place and the last time of demand of the rent is such a convenient time before the Sun-setting of the last day of payment as the mony may be numbred and received 40 Ass 11. 49. Ass 5. 15. Eliz. Dy. 329. lib. 4. Burroughes c. f. 72. c. Pl. Com. 70. and 172. Hill and Granges c. Lib. 5. f. 114. Wades c. If a rent be granted payable at a certain day and if it be behind and demanded that the grantee shall distrein for it in this case the grantee need not demand it at the day but if he demand it at any time after he shall distrein for it Lib. 7. f. 28. Maundes c. Mich. 40 41. El. Stanly c. Regularly it is true that he that entreth for a condition broken shall be seised in his first estate or of that estate which he had
at the time of the estate made c. 8 H. 7. 7. b. 1. Limitation in respect of impossibility 4 H. 6. 2. Lib. 8. Fo. 43. c. Whittinghams c. 5. H. 7. a. 2. Limitation in respect of necessity Fo. 202. a. Vide c. 3. In some cases the Feoffor by his reentry shall be in his former estate but not in respect of some collaterall qualities as if a Copihold escheat and the Lord make a Feoffment in Fee upon condition and enter for the condition broken for that the custome or prescription for the time is interrupted Lord and Tenant by Fealty and rent the Lord is seised of his rent and granteth his Seigniory to another in Fee upon condition the Tenant attorn and payeth his rent to the grantee the condition is broken the Lord distreins for his rent and rescous is made he shall be in his former estate and yet the former seisin shall not enable to have an Ass without a new seisin 15. Ass 12. Tenant in taile It. Feoffment in Fee Sur. condition 8 H. 7. 7. If tenant for life ft. Feoffment c. and ent pur condition broken the state is reduced but the forfeiture is not purged 43. Ass 47. 13. E. 4. 4. Sect. 327. When the Feoffor is satisfied either by perception of the profits or by payment or tender and refusall or partly by the one and partly by the other Fo. 203. The Feoffor by his reentry gaineth no estate of freehold but an interest by the agreement of the parties to take the profits in nature of a distresse If a man make a Lease for life with a reservation of a rent and such a condition if he enter for the condition broken and take the profits of the land Quousq c. he shall not have an action of debt for the rent arere for that the freehold of the Lessee doth continue and therefore the book to the contrary 30. E. 3. f. 7. is false Printed and the true case was of a lease for years Note a diversity viz. If a man make Aleas pur ans reserve a rent with a condition that if the rent be behind that the lessor shall reenter and take the profits untill thereof he bee satisfied there the profits shall be counted 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 But if the condition be that he shall take the profits untill the Feoffor be satisfied c. without saying thereof c. There the profits shall be taken to be no part of the satisfaction but to hasten the lessee to pay it 27 H. 8. 4. And as Littleton here saith that untill he be satisfied he shall take the profits in the meane time to his own use 31 Ass pl. 26. Vide lestatute de Morton c. 6. and c. 7. without this word inde Sect. 329. If a man by Indenture letteth Lands for years provided always and it is counted and agreed between the said parties that the lessee should not alien it was adjudged that this was a condition by force of the proviso and a Covenant by force of the other words Vide Sect. 220. Dyer 28 H. 8. fo 13. 27 H. 8. fo 14. 15. Seignior Cromwells c. Lib. 2. fo 71. Lib. 8. 89. Frances c. Vn Feoffment in Fee ē fait rendition rent c. Sur. condition c. en cest case lestate del Feoffee ē defeasible si le condition ne soit performe c. vide Sect. 325. Sect. 330. Inesse potest donationis modus conditio sive causa Scito quòd ut modus est si condi quia causa 4. Mar. Dyer 138. b. If a man grant an annuity pro una acra terre this word pro sheweth the cause of the grant and therefore amounts to a condition for if the acre of land be evicted by an elder title the annuity shall cease for cessante causa cessat effectus 24 E. 3. 34. 9 E. 4. 20. 14 E. 4. 4. 15 E. 4 2. But if A. pro consilio impenso make a Feoffment or a Lease for life of an acre or pro una acra terrae c. Albeit he denieth counsell or that the acre be evicted yet A. shall not reenter for in this case there ought to be legall words of condition or qualification for the cause or consideration shall not avoid the state of the Feoffee and the reason of this diversity for that the state of the land is executed and the annuity is executory fol. 204. a. vide c. If a man make a Feoffment in Fee ad faciend or faciendo or ea intentione or ad effectum or ad proposit that the Feoffee shall doe or not doe such an act none of these words make the state in the land conditionall Hill 18 Eliz. in Com. Ban. Dyer 138. Pl. Com. 142. d. st lib. 2. c. 34. It was adjudged H. 40 Eliz. Rot. 161. Browne c. That a Lease for years was but a contract which may begin by word and by word may be dissolved Pl. Com. 142. Sometime in case of lands c. casa shall make a condition as if a woman give lands to a man and his heirs causa matrimonii prolocuti and if she marry the man or the man refuse to marry her she shall have the land again to her and to her heirs But otherwise it is if a man give land to a woman c. For the man may and ought to ask advise of learned counsell 34 Ass 1. 5 H. 4. 1. Quod non licebit to the lessee dare vendere c. Sub poena forisfacturae amounts to make the Lease for years defeasible 3 E. 6. Dyer 65 66. 4 Mar. 138. Sect. 331 332. Quae dubitationis causa tollendae inseruntur communem legem non laedunt expressio eorum quae c. Mortgage i.e. mortuum vadium Vivum vadium is As if a man borrow 100. l. of another and maketh an estate of lands unto him untill he hath received the said summe of the issues and the profits of the land so as in this case neither money nor land dyeth or is lost Vivum autem dicitur vadium quia nunquam moritur ex aliqua parte quod ex suis proventibus acquiratur Sect. 334. Feoffment ē fait en mortgage le feoffor mor ' devant le jour de payment des deiners c. Si l'heir del feoffor tender le mony al mes le jour c. le feoffee ceo refuse c. donques poit le heire enter en le terre pur ceo que il ad interest de droit en le Condition c. Et le feoffee en ceo case nad asc ' remedy daver le mony per le Commonley Sect. 335. The Condition descends unto the heir and therefore the Law that giveth him an interest in the Condition giveth him an ability to perform it and hereby the intent of the
del tender davert sum en grosse que nem pas issuant c. If the Condition be broken for non-payment of the rent yet if the Feoffor bringeth an Assize for rent due at that time he shall never enter c. because he affirmeth the rent to have a continuance and thereby waveth the Condition And so it is if the rent had a clause of distresse c. and 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 c. But if he accept a rent due at a day after he shall not enter c. because he thereby affirmeth the lease to have a continuance 14 Ass 11. 45 Ass 5. 6 H. 7. 3. Pl. Com. 133. 22 H. 6. 57. It will be a good and sure thing to set down in Conveyances every thing in certainty and particularity and not to trust onely to a President without advice of learned and well experienced men For as the rule is concerning the state of a mans body Nullum medicamentum est idem omnibus so in the state and assurance of a mans lands Nullum exemplum est idem omnibus fo 212. a. Sect. 343 344. Lou le lieu de payment est limit le feoffee nem oblig de receiver le payment en nul auter lieu c. Mes encore si il receivst c. ceo est assets bone c. The place is but a circumstance c. Nota diversit 1. When the Condition is for payment of money there if the Feoffee or Obligee accept an horse c. in satisfaction this is good but if the Condition were for the delivery of a horse c. albeit the Obligee c. accept money c. for the horse c. it is no performance of the Condition The like Law is if the Condition be to acknowledge a Recognizance of 20 l. if the Obligee or Feoffee accept twenty pound in satisfaction of the condition it is not sufficient in Law c. And so it is of all other collateral conditions 3 H. 7. 4. b. 11 H. 7. 20. 21. 19 E. 4. 1. b. 22 E. 4. 24. l. 9. f. 78. 12 H. 4. 23. 2. When the money is to be paid to a stranger there if the stranger accept an horse or any collaterall thing in satisfaction of the money it is no performance of the condition because the condition is strictly to be performed in that case But if the condition be that a stranger shall pay to the obligee c. a summe of mony there the obligee being party c. may receive a horse c. in satisfaction l. 5. f. 17. Primels case * Vide 4. H. 7. 4. Dyer 35 H. 8. 56. 27 H. 8. 1. If the obligor or lessor pay a lesse summe either before the day or at another place then is limited by the condition and the obligee * or Feoffee * lessee receiveth it this is a good satisfaction Vide lib. fo 212 b. Sect. 345. Vn annuall rent reserve al estranger ē sum engrosse This reservation is meerly void l. 8. f. 70. 71. words in a condition shall be taken out of their proper sense ut res magis valeat quam pereat 6. E. 2. entr Cong 55. recipere 8 Ass 34. Revertere But if A. be seised of certain Lands and A. and B. joyn in a Feoffment in fee reserving a rent to them both and their heirs and the Feoffee grant that it shall be lawfull for them and their heires to distraine for the rent this is a good grant of a rent to them both because he is party to the Deed and the clause of distresse is a grant of the rent to A. and B. But if B. had been a stranger to the Deed then B. had taken nothing and upon this diversity are all the Books which prima facie seem to vary reconciled 18 E. Ass 381. 26 H. 8. 2. 31 Ass p. 31. Arg. a divisione est fortissimum in lege Sect. 381. Sect. 346. c. Nota 2. choses 1. nul rent que properment ē dit rent poit estr reserve sur asc ' Feoffment done ou lease forsque tantsolement al Feoffor donor c. ou a lour heires 2. Null entre ou reenter que ē tout un poit estre reserve ne done a asc ' person forsque c. al Feoffor c. Littletons meaning is that either the Feoffor c. may reserve the rent to himselfe onely or to himselfe and his heires Fo. 213. b. If a man make a Feoffment in Fee reserve a rent to him or his heirs it is good to him for terme of his life and void to his heire l. 5. fo 111. Mallories case If two joyntenants without a Deed indenture make a lease for life reserving a rent to one of them it shall enure to them both in respect of the joynt reversion and so it is of a surrender c. 5 E. 4. 4. a. 27 H. 8. 16. S. 58. But if Tenant for life and he in the reversion joyne in a Lease for life or a gift in taile by Deed reserving a rent this shall enure to the Tenant for life only during his life and after to him in the reversion for every one grants that which he may lawfully grant M. 36. and 37. Eliz. in Banco R. Sect. 347. Nothing in action entry or reentry can be granted over for avoiding of maintenance suppression of right and stirring up of suits No stranger shall take advantage of a condition that requireth a reentry But of limitations it is otherwise As if a man make a lease Quousq i. e. untill I. S. come from Rome the lessor grant the reversion over to a stranger I. S. comes from Rome the grantee shall enter because the estate by the expresse limitation was determined Pl. Com. 27. F. N. B. 201. l. 10. fo 36. Mary Portingtons case 2. Another diversity is between a condition annexed to a freehold and a condition annexed to a Lease for yeares for a Lease for years may begin or end without ceremony but an estate of Freehold cannot c. And of a void thing an estranger may take benefit but not of a voidable estate by entry 10 Ass pl. 24. Pl. Com. 36. 11 H. 7. 17. 3. Diversity between a reservation of a rent and a re-entry for a rent cannot be reserved to the heire of the Feoffor but the heir may take advantage of a condition which the Feoffor could never doe as if I. infeoffe another of an acre of ground upon condition that if mine heire pay to the Feoffee c. twenty shillings that he and his heirs shall re-enter this condition is good c. for he is privy in bloud and shall injoy the Land as heire to me Pl. 313. Scho. 15. E. 4. 14. a. And if a man have a Lease for years and demise or grant the same
man will take advantage of a Condition if he may enter he must enter and when he cannot enter he must make a claim because a Freehold and Inheritance shall not cease without entry or claim and also the Feoffor or Grantor may wave the condition Pl. 133. b. Browning If a man bargain and sell land by Deed indented and inrolled with a proviso That if the Bargainor pay c. that then the state shall cease and be void he payeth the money the state is not revested in the Bargainor before a re-entry And so it is if a bargain and sale be made of a reversion remainder advowson rent common c. l. 2. f. 50. Sir Hugh Cholmleys Case fo 218. vide nota But the said Rule hath divers Exceptions 1. In this present case of Littleton for that he can make no entry he shall not be driven to make any claim to the reversion for seeing by construction the Freehold and Inheritance passeth maintenant out of the lessor by the like construction the Freehold and Inheritance by the default of the lessee shall be revested in the lessor without entry or claim l. 1. f. 174. Digs Case 20 E. 4. 19. 20 H. 7. 4. b. 2. If I grant a rent charge in fee out of my land upon condition if the condition be broken the rent shall be extinct c. 3. If a man make a feoffment unto me in fee upon condition that I shall pay unto him 20 l. at such a day c. before the day I let unto him the land for years reserving a rent and after fail of payment the feoffee shall retain the land c. and the rent is extinct c. for that the feoffor could not enter c. for he himself was in possession and the condition being collateral is not suspended by the lease otherwise it is of rent reserved If a man make a lease for 40 years and the lessor grant the reversion to the lessee upon condition and after the condition is broken the term was absolutely surrendred And the diversity is when the lessor grants the reversion to the lessee upon condition and when the lessee grants or surrenders his estate to the lessor for a condition annexed to a surrender may revest the particular estate because the surrender is conditional But when the lessor grants the reversion to the lessee upon condition there the condition is annexed to the reversion and the surrender absolute 7 E. 4. 29. 14 E. 4. 6. 45 E. 3. 8 E. 2. Ass 395. A Guardian in Chivalry took a Feoffment of the Infant c. 50 E. 3. 27. Vide lib. fo 218. b. Ou le feffor poit loialment enter pur le condition enfreint c. la il nad franktenement devant son entry c. S. 351. Sect. 352. It is necessary when a day is limited to adde to the condition that the Feoffee or his heirs do perform the condition but when no time is limited then the Feoffee at his peril must perform the condition during his life although there be no request made or else the Feoffor or his heirs may re-enter And when the Feoffee is to give the land to the Feoffor and his wife in Tail before Michaelmas c. and if the Feoffee dye before the day the state of the heir of the Feoffee shall be absolute 15 H. 7. 13. 33 H. 6. 26 27. 9 Eliz. Dyer 262. Pl. 456. lib. 2. f. 79. Seignior Cromwels Case If a man make a Feoffment in see upon condition that the Feoffee shall make a gift in Tail to the Feoffor the remainder to a stranger in fee there the Feoffee hath time during his life because the Feoffor who is party and privy to the condition is to â—ake the first estate But if the condition were to make a gift in Tail to a stranger the remainder to the Feoffor in fee there the Feoffee ought to do it in convenient time for that the stranger is not privy to the condition and he ought to have the profits presently A condition that is to create an estate is to be performed by construction of Law as near the condition as may be and according to the intent of the condition albeit the letter c. cannot be performed But otherwise it is of a condition that destroyeth an estate for that is to be taken strictly unless it be in certain special Cases c. As if a man mortgage his land to W. upon condition that if the Mortgagor and I.S. pay 20 s. at such a day to the Mortgagee that then he shall re-enter the Mortgagor dyeth before the day I.S. pay the money to the Mortgagee this is a good performance of the condition But if a man make a lease to two for years with a proviso if the lessees dye during the term the lessor shall re-enter one lessee alien his part and dye the lessor cannot re-enter but the Assignee shall enjoy the term so long as the survivor liveth because the lease by the proviso is not to cease till both be dead 30 H. 8. Condition Br. 190. 33 H. 8. Joyntenants Br. 62. Note a diversity when the feoffee dyeth for then the condition is broken and when the feoffor dyeth for then the estate is to be made as near the intent of the condition as may be 2 H. 4. 5. fo 219. b. Note That after the decease of the husband the state is not to be made to the wife and the heirs of her body by her late husband ingendred and so to have an estate of Inheritance as she should have had by survivor if the estate had been made according to the condition but onely an estate for life without impeachment of Waste c. Sans impeachment per action de Waste extends but to the action c. Lib. 11. fo 83. l. 9. f. 9. l. 2. 23. Sect. 353 354. Note That the feoffee hath time during his life to make the estate unless he be reasonably required by them that are to take the estate This is to be intended of parties or privies and not of meer strangers for there the state must be made in convenient time fo 220. a. Si feoffment soit fait sur condition que le feoffee re-enfeoffor plusors homes a av tener a eux a lour heires c. touts ceux que devient av estate mor ' devant afc ' estate fait a eux donque doit le feoffee faire estate al heire celuy que survesquist de eux a aver tener a luy les heires celuy que survesquist 220. b. The reason wherefore the Habendum is thus limited c. is for that if it were made to the heirs of the heir then some by possibility should be inheritable to the land which should not have inherited if the estate had been made to the survivor and his heirs and consequently the condition broken Sect. 355 356. Of Disabilities some be by act of the party and some
by act in Law and some by act in praesenti and some in futuro The feoffee is disabled when he cannot convey the land over according to the condition in the same plight quality and freedom as the land was conveyed to him 13 H. 7. 23. b. 32 E. 2. Barre 264. 21 Ass 28. 38 Ass pl. 7. Sect. 357. Si le Feoffee sur condition d'enfeoffer un auter c. fait lease pur ans a commencer al jour a vener this is a present disability and cause of entry for that the land is not in that freedome c. as it was conveyed to the Feoffee and after the State made over according to the condition the land shall be charged therewith l. 2. f. 59 60. Julius Winningtons case Plight signifieth not onely the estate but the habit and quality of the land and extendeth to rent charges and to a possibility of Dower Vide S. 289. fo 221. b. If the feoffee were married at the time of the feoffment then the dower can be no disability because the land shall remain c. as it was at the time of the feoffment made unto him The Feoffee being disabled at any time though the same continue not yet the Feoffor may re-enter And note a diversity between a disability for a time on the part of the Feoffee and on the part of the Feoffor For if a man make a Feoffment in fee upon condition that the Feoffee before such a day shall re-enfeoffe the Feoffor the Feoffee taketh wife and the wife dieth before the day yet may the Feoffor re-enter for that maintenant by the disability of the Feoffee the condition is broken But so it is not by the disability of the Feoffor or his heirs for if they perform the condition within the time it is sufficient 21 E. 4. 55. Trin. 18 El. in C. Ban. Sir Th. Wiats case Sect. 358. If the Feoffee be disseised and after binde himself in Statute Staple c. or take wife this is no disability in him for that during the disseisin the land is not charged therewith c. Fo. 222. a. Note there are other disabilities implied 18 Ass pl. ultimo 19 E. 3. 39. Lib. 2. fo 80. b. Snr. Cromwels case If a man grant an advowson upon condition that the grantee shall regrant the same to the grantor in tail In this case if the Church become void before any regrant or before any request made by the grantor he may take advantage of the condition because the Advowson is not in the same plight c. P. 14. El. in Com. ban If the Feoffee suffer a recovery by default upon a fained title before execution sued the Feoffer may reenter for this disability 44 E. 3. 9. Sect. 359 360. If an agreement be made between two that the one shall infeoffe the other upon condition in surety of the paiment of certain mony and after the livery is made to him and his heirs generally the State is holden by some to be upon condition in as much as the intent of the parties was not changed at any time but continued at the time of the livery 34 Ass pl. 1. 13 E. 3. Estopp 177. Vn Feoffment sur condition que le Feoffee ne alienam a nulluy cest condition est void So it is of a devise grant release confirmation c. whereby a fee simple doth passe 33 Ass 11. Doct. St. 39. 124. 13 H. 7. 23. 21 H. 6. 34. a. 8 H. 7. 10. b. Arg. ex absurdo Vide S. 7 22. fo 213. a. Vide c. Iniquum est ingenuis hominibus non esse liberam rerum suarum alienationem rerum suarum quilibet est moderator Arbiter Reg. Non valet pactum de re mea non alienanda But these are to be understood of conditions annexed to the grant or sale it self in respect of the repugnancy and not to any other collaterall thing Some have said that a man may grant a rent charge newly created out of Lands to a man and his heirs upon condition that he shall not alien that that is good because the rent is of his owne creation but it is against the reason of Littleton c. Before the Statute of Quia empt ter the Lord might have restrained the alienation of his Tenant by condition because the Lord had a possibility of Reverter and so it is in the Kings case at this day because he may reserve a tenure to himselfe 14 H. 4. 13 H. 7. 23. 21 H. 7. 8. l. 5. 56. Knights case If A. be seised of bl acre in fee and B infeoffe him of wh acre upon condition that A. shall not alien B. acre the condition is good for it is annexed to other land and ouster not the Feoffee of his power to alien the land whereof the Feoffement was made and so no repugnancy c. And so it is of gifts or sales of Chattels reals or personals Sect. 361. If a Feoffment in fee be made upon condition that the Feoffee shall not infeoffe F.S. or any of his heirs or issues c. this is good Pl. Com. 77. a. 8 H. 7. 10. b. 21 E. 4. 47. a. If the feoffee in this case infeoffe I. N. of intent that hee shall infeoffe I.S. this is a breach of the condition for quando aliquid prohibetur fieri ex directo prohibetur per obliquum Fo. 223. b. 10 H. 7. 11. D. St. 124. 13 H. 7. 23. In ancient Deeds c. there was commonly a clause Quod licitum sit donatoriâ— rem datam dare vel vendere cui voluerit except viris Religiosis et Judais Brac. l. 1. fo 13. a. Sect. 362. A double Neg. in legall construction shall not hinder the Neg. 33 Ass 11. 21 H. 7. 11. Vide S. 220. If a man make a Lease for years or for life upon condition that they shall not grant over their estate or let the Land to others this is good and yet the grant or Lease should be lawfull 21 H. 6. 33. 31 H. 8. Dy. 45. 27 H. 8. 17 19. Quilibet potest renunciare juri pro se introducto Dy. 33 H. 8. fo 48 49. lib. 6. 40 41. Sir Ant. Mildmayes case Note that to estate tail c. there be divers incidents 1. To be dispunished of waste 2. That the wife of the donee in tail shall be endowed 3. The Husband c. shall be Tenant by the Curtesie 4. That Tenant in tail may suffer a common recovery and therefore if a man make a gift in tail upon condition to restrein him of any of these incidents the condition is repugnant and void in Law 22 E. 3 19. 17 El. 343. Dy. And note that a collaterall warranty or a lineall with Assets in respect of the recompence is not restrained by the Statute of Donis Cond no more is the Common recovery in respect of the intended recompence 13 H. 7. 24. b. If a man make a feoffment to a Baron and feme
in fee upon condition that they shall not alien to some intent this is good and to some intent it is void for to restrain an alienation by Feoffment or alienation by Deed it is good because such an alienation is tortious and voidable but to restrein their alienation by fine is repugnant and void because it is lawfull and unavoidable Whatsoever is prohibited by the intent of any Act of Parliament may be prohibited by condition Sect. 363. A man makes a gift in tail to A. the remainder to him and to his heirs upon condition that he shall not alien some are of opinion that this is a good condition and shall defeat the alienation for the estate tail onely and leave the fee simple in the alienee for that the condition in Law extends onely to the estate tail 11 H. 7. 6. c. fo 224. a. But a gift in tail may be made upon condition that tenant in tail c. may alien for the profit of his Issues Sect. 364. * Nota. Home poit doner terres en taile sur condition que si le tennant en le taile ou ses heires alienont en fee ou en taile ou pur terme daut vie c. auxy que si touts issues veignants del Tenant in taile soient morts sans issue que donques bien lirroit al donor a ses heires d' enter c. partiel voy le droit del taile poit ereÌ„ solve apres discontent in al issue en le taile si ass ' y soit issint que per voy dentre del donor ou de ses heirs le taile ne serra my defeat per tiel condition Littleton to make the condition good addeth an alienation which amounted to a wrong and he restraineth not the alienation onely but added and die without issue to the end that the right of the estate in tail might be preserved and not defeated by the condition but might be recovered again by the issue in tail in a Formedon Si plures conditiones ascriptae fuerunt donationi conjunctim omnibus eÌ„ parendum ad veritatem copulative requiritur quod utraque pars sit vera Brac. l. 2. fo 19. Pl. 76. Wimbesh case and 107. Fulmerstons case But si divisim cuilibet vel alteri eorum satis eÌ„ obtemperare in disjunct sufficit alteram partem esse veram If a man make a Lease to the husband and wife for 21. yeares if the husband and wife or any child between them so long shall live and then the wife die without issue the Lease shall continue for the disjunctive referreth to the whole Pl. 30 El. Com. ban Baldwin and Cock Trupennies case and so it is if any use be limited to certain persons untill A. shall come from beyond Sea and attain unto his full age or die if he doth beyond Sea come from or attain to his full age the use doth cease H. 35 El. Trans per sur Mordant ban R. Sect. 365. Il eÌ„ common erudit que home per plee ne defeatera asc ' estate de franktenement per force dasc ' tiel condition Sin que il merâ—â—â— le propoâ—e de condition en escript c. Si non en speciall cases c. Mes de chattels reals sicome de Lease pur ans auterment est issint eÌ„ de dones grants de chattels personals and contracts personals c. Be the action reall personall or mixt if a condition be to defeat a freehold it is Reg. true that a Deed must be shewed forth in Court. Because every Deed ought to approve it self that it be sufficient in Law and that the Court shall adjudge and secondly be proved by others and this concerns matters of Fact as sealing and delivery and belongs to the jurors 9 E. 4. 25 26. 14 H. 8. 22. b. 28 Ass pl. 1. l. 10. fo 92. Dr Layfields case 11 H. 7. 22. b. Upon a gift in tail or a Lease for life a rent may be reserved without deed but a condition with re-entry cannot be reserved without deed in this case 45 E. 3. 21. a. By the Statute of 3 and 4 E. 6. ca. 4. and 13 El. ca. 6. the exemplification or constat under the great Seal of the inrolment of any Letters Patents made since the 4 of Feb. 27 H. 8. or after to be made shall be sufficient to be pleaded and shewed forth in Court as well against the King as any other person by the Patentees themselves c. Dyer 1 El. 167. 12 H. 7. 12. b. A constat Inspeximus c. ought to be had onely of the inrolment of Record and no deed c. can be inrolled unlesse it be duly and lawfully acknowledged Lib. 8. fo 8. The Princes case l. 5. fo 52 53. Pages case If Gardian in Chivalry in right of the heir enter for a condition broken he shall plead the state upon condition without shewing of any Deed because his interest is created by the Law and so it is of a Tenant by State Merch. c. and of Tenant in Dower c. 20 H. 7. 5. 35 H. 6. Manors des faits 11. b. But the Lord by escheat albeit his estate be created by law shall not plead condition to defeat a freehold without shewing of it because the Deed doth belong unto him A Tenant by the Curtesie shall not plead a condition made by his wife c. without shewing the Deed. But lessees for years and all others that claim by any conveiance from the party of justifie as servant by commandment c. must shew the Deed 14 H. 8. 8. Pl. 149. R. brought an ejection firme against E. of the Manor of D. which he had for years of the demise of C. c. E. maintained his entry c. and shewed no deed and the plea was good because the thing was executed Vide le case fo 226. a. 44 E. 3. 22. Nota the defendant being issue in tail was remitted to the estate tail If land be morgaged upon condition and the morgagee letteth the lands for years reserving a rent the condition is performed the morgagor reenters in an act of debt brought for the rent the lessee shall plead the condition and reentry without shewing forth the Deed. 45 E. 3. 68. Finch 10 H. 4. 9. b. If a woman give land to a man and his heirs by deed or without generally she may in pleading averre the same to bee causa matrim prolocuti albeit she hath nothing in writing to prove the same 9 E. 4. 25 26. 14 H. 8. 22. b. 11 H. 7. 22. b. F.N.B. 205. b. Sect. 366. Item Comt que home ne poit en asc ' act ' pleaded un condition que concerne le franktenement sans manurer escript de ceo encore poit home estre aid sur tiel condition per verdict de 12. homes prise â—large en Ass de no. diss c. Vide S. c. Judicium est quasi juris
c. shall not take away the entry c. 17 H. 6. 1. Lestat 32 H 8. c. 33. Sect. 422 426. Pl. 47. Wimbishes case Fo. 231. a. vid. c. Ad ea que frequentius accidunt jura adaptantur The Feoffee of a disseisor is out of the said Statute and remains as at the Common Law M. 4. 5 El. Dyer 219. But if a man make a lease for life and the lessee for life is disseised and the disseisor dye seised within 5 years the lessee for life may enter but if he dye before he doth enter it is said that the entry of him in the reversion is not lawfull because his entry was not lawful at the time of the discent Sect. 386. If a disseisor make a gift in Tail and the donee discontinueth in fee and disseise the discontinuee and dyeth seised this discent shall not take away the entry of the disseisee for the discent of the fee simple is vanished and gone by the Remitter and albeit the issue be in by force of the estate Tail yet the donee dyed not seised of that estate Fol. 238. b. If a disseisor make a gift in Tail and the donee hath issue and dyeth seised now is the entry of the disseisee taken away but if the issue dye without issue the entry of the disseisee is revived and he may enter upon him in the reversion and remainder 9 H. 7. 24. So if there be Grandfather Father and Son and the Son disseise one and infeoff the Grandfather who dyeth seised c. the entry is taken away but if the Father dyeth seised and the land descend to the Son now is the entry of the disseisee revived and he may enter upon the Son who shall take no advantage of the discent because he did wrong unto the disseisee 13 H. 4. 8 9. 33 H. 6. 5. b. per Moyl 34 H. 6. 11. a. per Cur. S. 393 395. 13 E. 3. Br. Ent. cong 127. vide qu. If a disseisor make a lease to an Infant for life and he is disseised and a discent cast the Infant enters the entry of the disseisee is lawfull upon him Of Writs of Entry sur disseisin there be four kindes The 1. is a Writ of Entry in the nature of an Assize 19 H. 6. 56. 9 H. 5. 9. 2. A Writ of Entry sur disseisin in le per Brit. fo 264 c. 〈◊〉 E. 3. 216. 3. A Writ c. en le per cui as where A. being the feoffee of D. the disseisor maketh a feoffment over to B. there the disseisee shall have a Writ of Entry sur disseisin of lands c. in which B. had no entry but by A. to whom D. demised the same who unjustly and without Judgement disseised the Demandant These are called gradus degrees which are to be observed or else the Writ is abateable for sicut natura non facit saltum ita nec lex 22 E. 3. 1. b. F.N.B. 192. 4. A Writ of Entry sur disseisin en le post which lieth when after a disseisin the land is removed from hand to hand above the degrees 14 H. 4. 40. vide c. No estate gained by wrong doth make a degree and therefore neither abatement intrusion or disseisin upon disseisin doth make a degree Neither doth every change by lawful Title work a degree as if a Bishop or an Abbot c. disseise one and dye where his successor is in by lawful Title for though the person be altered yet the Right remains where it was viz. in the Church and both of them seised in the same Right c. An faciunt gradum de Abbate in Abbatem sicut de haerede in haeredem Et videtur quod non magis quam in computatione descensus quia etsi alternetur persona non propter hoc alternatur dignitas sed semper manet Br. l. 4. f. 321. If a disseisor by Deed inrolled convey the land to the King and the King by his Charter granteth it over the disseisee cannot have a Writ of enter en le per cui but in le post for the Kings Charter is so high a matter of Record as it maketh no degree 22 E. 3. 7. F.N.B. 191. k. Also an estate of a Tenant by the Curtesie or of the Lord by Escheat or of an execution of an Use by the Statute of 27 H. 8. or by Judgement or Recovery or of any others that come in in the post work no degree 5 E. 2. Entry 66. 7 E. 3. 360. But a Tenancy in Dower by assignment of the heir doth work a degree because she is in by her husband but assignment of Dower by a disseisor worketh no degree but is in the post 36 H. 6. Dower 30. When the degrees are past so as a Writ of Entry in le post doth lie yet by event it may be brought within the degrees again as if the disseisor infeoffe A. who infeoffs B. who infeoffs C. or if the disseisor die seised and the land descend to A. and from him to C. now are the degrees past and yet if C. infeoffe A. or B. now it is brought within the degrees again 44 E. 3 4 5. 5 H. 7. 6. If the disseisor make * a lease for life the remainder in * fee Tenant for life dieth he in the remainder is in the per because he now claimeth immediately from the disseisor and both these estates make but one degree 50 E. 3. 27. Note there be divers other Writs of Entry besides this of entry sur disseisin as a Writ of Entry ad Terme qui praeter ' in casu proviso in confirm ' casu ad com legem sine assensu capituli dum fuit infra aetat ' dum non fuit compos mentis cui in vita sur cui in vita Intrusion cessavit c. and that which hath been said of one may be applied to all Sect. 387. If a disseisor make a lease to a man and his heirs during the life of I. S. and the lessee dieth living I. S. this shall not take away the entry of the disseisee because he that died seised had but a Freehold onely and heirs were added to prevent an Occupant for the heir in that case shall not have his age Pl. 16 El. Com. Banco Lambs Case Dyer 8 El. 253. 7 H. 4. 46. 8 H. 4. 15. 11 H. 4. 42. 17 E. 3. 48. But if the Kings Tenant for life be disseised and the disseisor die seised this descent shall not take away the entry of the lessee for life because the disseisor had but a bare estate of Freehold during the life of the lessee * If the heir of the disseisor die before he enter the entry of the disseisee is taken away and yet in pleading the second heir shall make himself heir to the disseisor c. 24 E. 3. 47. An infant is disseised and after cometh to full age Sect. 388 c. En discents que tollent
entry il covient que celuy que mor ' seisee ad fee franktenement al temps de son morant on fee tail franktenement al temps c. fo 239. b. Note the law doth ever give great respect to the estate of Freehold though it be but for term of life A descent in the collaterall line doth take away an entry as well as in the lineall Sect. 390. A dying seised and a descent and not a dying seised and an Escheat doth take away the entry for the discent is the worthier Title But if the disseisor die seised and the heir of the disseisor die without heir the disseisee cannot enter upon the Lord by Escheat So as there is a diversity as touching the discent when after a discent cast the issue in tail dieth without issue and when after a discent cast the heir in feesimple dieth without heir for he in the reversion or remainder upon a state Tail claimeth in above the state Tail but the Lord by Escheat claimeth in under the heir in fee simple 37 H. 6. 1. 9 H. 7. 24. b. Sect. 391 392. Note a diversity between a Right for which the Law giveth a remedy by action and a Title for which the Law giveth no remedy by action but by entry onely For example The feoffor upon * this case in Condition hath a Right to the land * and therefore his entry may be taken away because he may recover his right by action but the Feoffor or Donor that hath but a condition his Title of Entry cannot be taken away by any discent because he hath no remedy by action to recover the land And therefore if a discent should take away his entry it should barre him for ever 3. 3 Ass 11. 24. 21. H. 6. 17. Also he that hath a Title to enter upon a Mortmain shall not be barred by a discent Br. Mortmain 6. 47 E. 3. 11. And so it is where a woman hath a Title to enter Causa matr praelocuti 40 Ass 13. And so it is where the Freehold in Law is cast upon the Devisee and the heir before any entry made by the Devisee enter and dyeth seised And so it is of him that entreth for consent to a Ravishment P. 32 El. Com. Ban. Martin Trotte of London 41 E. 3. 14. per Finchden P. 1 Ja. Com. Ban. To this may be added as a like case the Kings Patentee before he enter c. Another reason wherefore a discent shall not take away the entry of him that hath a Title to enter by force of a Condition c. is for that the Condition remains in the same essence that it was in at the time of the creation of it and cannot be devested or put out of possession as Lands and Tenements may Sect. 393. 8 E. 2. Enter 75. 24 E. 3. 40. 38 Ass p. 26. 11 H. 4. 11. 7 H. 5. 3. 36 H. 6. Dower 30. fo 241. a. le heire endow la feme de le disseisor c. If there be Lord Mesne and Tenant the Mesne doth grant to the Tenant to acquit him against the Lord and his heirs the Lord dyes his wife hath the Seigniory assigned to her for her Dower and distraineth the Tenant albeit the grant was to acquit him against the Lord and his heirs onely yet because she continued the estate of her husband and the reversion remained in the heir this grant of Acquittal did extend to the wife 31 E. 1. Mesne 55. Nota c. If after the dying seised of the disseisor the disseisee abate against whom the wife of the disseisor recover by confession in a Writ of Dower in that case though the discent be avoided yet the disseisee shall not enter upon the Tenant in Dower because the recovery was against himself but if he had assigned Dower to her in paiis some say he should enter upon her Donor in Tail reserves 20 s. rent and dyes the Donee takes wife and dyes without issue the heir of the Donor enters and endows the wife she is so in of the estate of her husband that albeit the estate Tail be spent and the rent reserved thereupon determined yet after she be endowed she shall be attendant to the heir in respect of the said rent And so it is of Lord and Tenant the wife that is endowed shall be attendant for the due services but if any services be incroached albeit that incroachment shall binde the heir yet the wife shall be Contributory but for the services of right due 10 E. 3. 26. Nota albeit the disseisor after a discent taketh to him but an estate for life yet when the disseisee doth enter upon him he shall thereby devest the reversion for a Freehold is that whereupon a Praecipe doth lie and therefore the entry of the disseisee is as available in Law as if he had recovered it in a Praecipe And so it is if a disseisor make a lease for life and grant the reversion to the King c. 25 E. 3. 48. Pl. C. 553. Vide S. 302 388. Sect. 394. Si un feme seisie de terra en fee dont jeo aye droit title dent prent baron ont issue enter eux puis la feme devie seisie apres le baron devie lissue enter c. en cē case jeo poy enter sur le poss lissue pur ceo que lissue ne vient a les tenements immediate par discent apres la mort sa mere c. eins per le mort del pier 9 H. 7. 24. 37 H. 6. 1. An immediate discent may take away an entry for a time and immediately may be avoided by matter ex post facto But if a dying seised take not away the entry of him that right hath at the time of the discent it shall not by any matter ex post facto take away his entry If a disseisor make a gift in Tail the remainder in fee and the donee dyeth without issue leaving his wife privement enceint with a Son and be in the remainder enters and after the Son is born who entred into the land this discent shall not take away the entry of the disseisee because the issue cometh not to the lands immediately by discent c. Sect. 395. Disseisor enfeoff son quier en fee le pier mor. seisie c. cēne tolla entry c. Reg. it is true that albeit a discent be cast and the entry of the disseisee taken away yet if the disseisor commeth to the land again either by discent or purchase of any estate of freehold which is implyed in the c. the disseisee may enter upon him or have his Assize against him as if no discent or mean Conveyance had been quia particeps criminis 15 E. 4. 23. a. 11 E. 4. 2. 18 E. 4. 25. a. 33 H. 6. 5. b. 34 H. 6. 11. 12 H. 8. 9. 24 H. 8. 3. 9. 18 H. 8. 5. 5 H. 7. 29. Ass
use of the infant for the State is voidable But where an infant or a man of full age is disseised an entry by a stranger of his own head is good and vesteth presently the estare in the Infant or other disseisee So it is if Tenant for life make a Feoffment in fee an estranger may enter for a forfeiture in the name of him in the reversion and thereby the estate shall be vested in him P 39. El. Com Banco per Cur. 10. H 1. 16 7. E 3. 69 6. E 3. 6â— peâ— Thorp If the Mulier enter upon the Bastard and the Bastard recover the land in an Ass against the Mulier now is the interruption avoided and if the bastard die seised this shall barre the Mulier The possession of the King when he hath no cause of seisure shall be adjudged the possession of him for whose cause he seised 2. Ass 9. fo 245. b. Vide c. And note that the bastard must enter in vacuam poss and continue during his life without interruption made by the Mulier Acts without words may make an entry but not words without an act viz. an entry c. Pl. 91. Parson de Honiâ—awes case 35. H 6. 24. 1 E 3. 21 E 4. 3 21. E 4. 5. 5. E 60 21. H. 6. 9. Sect. 402. Null laches ser adjudge en un Infant lou discent è eschue durant son nonage 33. E 3. qu. imp 46. But in some other cases Laches shall prejudice an infant as if he present not to a Church within six moneths for the Law respecteth more the priviledge of the Church that the cure be served than the priviledge of Infancy and so the publike repose of the Realm concerning mens Freeholds and inheritance shall be preferred before the priviledge c. in case of a Fine where the time begins in the time of the Ancestor Pl. 372. So non-claime of a villeine of an infant by a year and a day who hath fled into Ancient demesne shall take away the seisure of the infant and if an infant bring not an appeal of the death of his Ancestors within a year and a day he is barred of his appeal for ever for the law respects more liberty and life than the priviledge of infancy and note that Littleton putteth his case that an Infant shall enter upon a discent when a stranger dyeth seised but he put it not so before in the case of the Bastardeigne B. Tenant in taile infeoffes A. in fee A. hath issue within age and dyeth B. abateth and dieth seised the issue of A. being still being within age this discent shall bind the infant for the issue in taile is remitted and the Law doth more respect ancient right in this case than the priviledge of an infant that had but a defeasible estate 11. E. 4. 1. 2. F.N.B. 35. 35 m And it is said if the Kâ—ng dieseised of lands and the land discend to his successor that this shall bind an Infant for that the priviledge of an infant in this case hold not against the King 35. H. 6. 60. Fo. 246. a. Sect. 403. Si bar feme come en droit sa feme ont title droit denter c. Tenant delterre mor. seisie c. These words are generall but are particularly to be understood viz. when the wrong was donâ— to the wife during the Coverture for if a feme sole be seised of lands in fee and is disseised and then taketh husband in this case the husband and wife as in the right of the wife have right to enter yet the dying seised of the disseisor in that case shall take away the entry of the wife after the death of her husband and the reason is as wel for that she her self when she was sâ—â—e might have entred recontinued the pâ—ssession as also it shall be accâ—unted her folly that she would take such a husband which would not enter before the discent 9 H 7. 24. a. 2 E 4 25. 7 E. 4. 7. b. 15. E. 4 Discent 30. Negligentia semper habet infortunium comitem Laches le baron ne turnara la feme c. al prejudice Note a diversity albeit reg No Laches shall be accounted in infants or feme Coverts as is aforesaid for not entry or claime to avoid discents yet Laches shall be accounted in them for no performance of a condition anexed to an estate of land For if a feme be infeoffed either before or after marriage reserving a rent and for default of payment a re-entry Iâ— that case the Laches of the baron shall disherit the wife forever 20. H. 6. 28. b. And so it is of an Infant his Laches for not performing of a condition anexed to a State either made to his Ancestor or himselfe shall bar him of the right of the Land for ever 31. Ass p. 17. 42. E. 31. Pl Com. 55. 10. H. 7. 13. H. 7. 35. H. 6. 41. Pl. 136. b. Pleta lib. 2. ca. 50. If a man make a Feoffment in fee to another reserving a rent and if he pay not the rent within a month that he shal double the rent and the Feofee dyeth his heire within age the Infant payeth not the rent he shall not by this Laches forfeit any thing But otherwise it is of a feme covert and the reason of this diversity is for that the Infant is provided for by the Statute Non current usurae contra aliquem infra aetatem existen c. Stat. Mert. ca 5 But that Statute doth not extend to a condition of a re-entry which the Infant ought to performe c. Sect 405 If an ideot make a Feoffment in fee he shall in pleading never avoid it c. But upon an office found for the King the King shall avoid the Feoffment for the benefit of the Ideot whose custody the Law giveth to the King 3â— H 42 b Abb 5 E 3. â—0 Brit. c 28 fo â—6 25 Ass p 4 35. Ass p 10 32. E 3 scire fac 1â—0 Stanf. pr â—4 Vpon all which books there have been four severall opinions concerning the alienation or other act of a man that is non compos mentis â—c 1. That he may avoid his own act by entry or plea. 2. That he may avoid it by writ and not by plea. 3. That he may avoid it either by plea or by writ and of this opâ—nion is Fitzh in his N B 202. And 4. Littleton here is of opinion that neither by plea not by writ nor otherwise he himselfe shall avoid it but â—is heire in respect his Anc. was non comp c shall avoid it by entry plea or writ for it is a maxime of the Common Lawes that the party shall not disable himselfe Lib. â— fo 126 127. Beverlâ—es case But this holdeth onely in civill causes for in criminal causes as felony c. the act of wrong of a mad man shall not be imputed to him for that in those causes actus non
facit reruÌ„ nisi mens sit rea et furiosus solo furore punâ—tur And so it is of an Infant untill he be of the age of 14. Fo 247. b Also if the Father disseise the Grandfather and make a Feoffment in fee c without warranty the Grandfather dyeth albeit the right descend to the Father yet he cannot enter against his own Feoffment but if he die his Son shall enter and avoid the State of the Feoffee 16 Ass 27 21 H 7 31 Stanf. â—6 b 8 E 3 2 Coron 413 414 351 22 E 3 ibid 12 4 2 H. 7 2 3 E 3. enter Cong Statham 12 E 4 8. 39. H â— 4 Abbr ass 89. 39. H. 6. 43. 15. E. Discent 30. If Lands â—e given to two and to the heirs of one of them he that haâ—h the fees shall not have an action of waste upon the Satut of Gloc. against the joynt tenant for life but his heire shall maintaine an action of waste against him Sect. 406 407 408. A Dum fuit infra aetat ' lyeth as well for the Ancestor himselfe after his full age as for his heir And note where an Infant disseisor aliens the lands in fee that if the discent be cast the Infant being within age he may enter at any time either within age â—or after his full age And so it is if an Infant make a feoffment c. he may enter c and so in both cases may his heir 43 E 3 Enter cong vet N B 126 b F N B 192. 45 E 3 21. Sect 40â— fol 2â—8 a. Tenant in Capite makes a Feoffment in fee to the use of the feoffee and his heirs until the feoffor pay 100 l. to him or his heirs the feoffee dyeth his heir within age now hath the King the Wardship of the body and is intituled to the guard of the land But if the feoffor pay the 10â— l. according to the limitation the Wardship is devested both for the body and the land and so it is in case of a Condition for the discent which is the cause of Wardship is utterly defeated and Cessante causa cessat causatum Dyer 13 Eliz fo 298 299 So as there is no difference where the discent is disaffirmed by a Right Paramount as where the estate was never lawful as in the case of an Infant and where the discent is affirmed for a time the estate being lawfull and being after defeated by matter ex post facto by a Title of re-entry Sect. 410. Disseisor ad issue enter en Relâ—gion c. This discent shall not barre the entry of the disseisee for that the discent cometh by the Deed of the Father And the Law respects the original â—ct and that is his entry inâ—o Religion which is his own act whereupon the profession followed whereby the discent happened for Cuiusque rei potissima pars principium est And Origo rei inspici deâ—et Pl. Dame Hales Cases 6 E. 3. 4â— c. But it is said in the case of a bastardeigne and Mulier puisnâ— sâ—ch a discent shall binâ—e the Mulier and such an heiâ— by discent shall have his age to E 3. 55 fo 248. b. Nota if a man be Tenant or Defendant in a real or personall â—ction and hanging the suit the Tenant or Defendant enter into Religion by this the Writ is not abated because it is by his own act And so it is of a Resignation but otherwise it is of a Deposition or Deprivation because he is expelled by Iudgement and yet his offence c was the cause thereof Sed in praesumptione legis judicium redditur in invitum â—8 E. 4. 19. 9 E. â— 25. 52. 7 E. 4. 15. Bract. lib. 4. fol. 189. Sect. 411. No discent or dying seised can be of a Chattel A man seised of an Advowsâ—n in â—eâ— grants three Avoidances one after another and after the Church becomes void and the Grantor presents and his Clerk is admitted and instituted and after the Church becomes void again the Grantee may present to the second Avoidance for that he was not put out of possession thereof for as the lessor having the Freehold and Inheritance cannot disseise his lessee for yeâ—rs having but a Chattel that any discent may be cast to take away his entry so in the said case the Grantor hath the Franktenement and the Fee of the Advowson rightfully so as he cannot make any usurpation to gain any estate c. Also in respect of the privity c. the usurpation of the Grantor not put the Grantee out of possession for the two latter Avoidances Hill 18 El. Com. Banco Claim daver terres pur terme d'ans nest pas expulsment de le franktenement del heire que est eins per discent Sect. 412 413. Time of Peace is the time of Law and Right and time of War is the time of Violent Oppression which cannot be resisted by the equal Course of Law Cum silent leges inter arma fo 249. b. Successioâ— of Bodies Politique or Corporate is in the post and the heir of the natural man is in the per 7. E 3. 25 a. 5 E. 3. 13. 3â— A Body Politique is so called because it is to take in Succession framed as to that capacity by Policy and it is also called a Corporation or a body incorporate because the persons are made into a Body and are of capacity to take and grant c. And this body Politique or Incorporate may commence and be established three manner of ways viz. by Prescription by Letters Patents or by Act of Parliament Every Body Politique or Corporate is either Ecclesiastical or Lay Ecclesiastical either Regular as Abbots Priors c. or Secular as Bishops Deans Archdeacons Parsons Vicars c. Lay as May or and Commonalty Bayliffs and Burgesses c. Also every Body Politique or Corporate is either Elective Presentative Collative or Donative and again it is either sole or aggregate of many And this Politique c. Body aggregate of many is by the Civilians called Collegium or Vniversitas Lib. 3. fo 73. Dean and Chapter of Norwich CHAP. VII Continual Claim Sect. 414 c. SI disseisee fait Continual Claim a les tenemenes in la vie le disseisor comment que le disseisor de vie seisee en fee la terre discendist a son heire encore pâ—it le disseisee enter sur la possession le â—erre c. Nul poâ—t faire continnal Claime mes quant il ad title dâ—vant c. S 416. And yet in some cases a Continuall Claim may be made by him that hath Right and cannot enter If Tenant for years Tenant by Statute Staple Merchant or Elegit be ousted and he in the reversion disseised the lessor or he in reversion may enter to the intent to make his Claim and yet his entry as to take any Profits is not lawfull during the Term And the lessor or he in the reversion in that case may enter
to avoid a collateâ—al Warranty or the lessor in that case may recover in an Assize and so as some have holden may the lessor enter in case of a lease for life to this intent to avoid a disâ—ent or a Warranty Dyer 19 El. Pl. Com. 374. 15 H 7 3 4. Iacobius Case 28. H 6 28. S 442. 45 E 3 21. If the disseisee make continual Claim and the disseisor dye seised within the year his heir within age and by Office the King is entitled to the Wardship albeit the entry of the disseisee be not lawful yet may he make continual Claim to avoid a discent and so in the like 7 H 6. 40. Con. Claim 1 Dounclers Case 5 E 4 4. No continual Claim can avoid a discent unless it be made by him that hath Title to enter and in whose life the dying seised was 22 H 6 37. 9 H. 4. 5. a. 15. E 4 22. a. Sect. 415. fol. 251. a. A continual Claim may be made as well where the lands are in the hands of a feoffee c. by Title as in the bands of a Disseisor Abater or Intruder by wrong Sect. 416. Note that a Forfeiture may be made by the alienation of a particular Tenant either in paiis or by matter of Record 1. In paiis of lands and tenements which lie in Livery where a greater estate is by liverâ— then the particular Tenant may lawfully make wherâ—by the reversion or remainder is divested vide S 581 609 610. 611 17 El. Dyer 339. 16. El. Dyer â—2â— A particular estate of any thing that lies in grant cannot be forfeited by any grant in fee by Deed for that nothing passes thereby but that which lawfully may pass 3â— E 3. Devise 21 15 E 4 9. vide S 608. But if Tenant for life or years of land the reversion or remainder being in the King make a feoffment in fee this is a forfeiture and yet no reversion or remainder is diâ—ested out of the King and the reason is in respect of the solemnity of the feoffment by livery tending to the Kings disherison 35 H 6 62. Tr. 32 El. in Informat ' de intrusion vers Rebinson Exchequers 2. By matter of Record and that by three manner of wayes 1. By Alienation 2. By Claiming a greater estate then he ought 3. By affirming the reversion or remainder to be in a stranger 1. By Alienation and that either divesting as by levying of a Fine or suffering a Common Recovery of Lands whereby the reversion or remainder is divested or not divesting as by levying of a fine in fee of an Advowson Rent Common or any other thing that lyeth in the grant And of this Opinion is Littleton in our Books and so note two diversities 1. Between a grant by Fine which is of Record and a grant by Deed in paiis and yet in this they both agree That the reversion or remainder in neither case is divested 2. Between a matter of Record as a Fine c. and a Deed recorded or a Deed inrolled for that worketh no forfeiture because the Deed is the Original 15 E. 4. 9. 2. By Claim and that may be in two sorts either Express as if Tenant for life will in Court of Record claim fee or if lessee for years be ousted and he will bring an Assize ut de libero tenemente or Implyed as if in a Writ of Right brought against him he will take upon him to joyn the Misce upon the meer Right which none but Tenant in fee simple ought to do So if lessee for years do loose in a Praecipe and will bring a Writ of Error for Error in Process this is a Forfeiture 15 E. 4. 29. 36. H. 6. 29. 2 H. 6. 9. 4. El. Dyer 9. H. 5. 14. 22 Ass 31. 18 E. 3. 28. 16. Ass 16. 3. By affirming the reversion or remainder to be in a stranger and that either actively or passively Actively by five manner of ways as 1. Tenant for life pray in aid of a stranger whereby he affirms the reversion to be in him 2. If he Attorn to the grant of a stranger and there note also a diversity between an Attornment of Record to a stranger and an Attornment in paiis for an Attornment in paiis worketh no Forfeiture 3. If a stranger bring a Writ of entry in casu proviso and suppose the reversion to be in him if the Tenant for life confess the action this is a forfeiture 4 If Tenant for life plead covinously to the disherison of him in the reversion this is a forfeiture 5. If a stranger bring an action of Waste against lessee for life and he plead Nul waste fait this is a forfeiture or the like 21 E. 3. â—4 a. 5 E. 4. 2. 24 H. 8. Forf br 87. lib. 2. fo 55 56. Bucklers Case 24. E. 3. 68. 1 H. 7. 15 Ass 3. Passively as if Tenant for life accept a Fine of a stranger Sur conusans de droit come ceo c. for hereby he affirmeth of Record the reversion to be in a stranger 3 M. Dyer 148. Note that the Right of a particular estate may be forfeited also and that he that hath but a Right of remainder or reversion shall take benefit of the forfeiture as if Tenant forlife be disseised and he levy a Fine to the disseisor c. fo 152. a. 13 E. 4 4. If Tenant for life make ale sâ— for life or a gift in Tail or a Feoffment in fee upon Condition and enter for the Condition broken yet the Forfeiture remaineth So it is of Tenant in Taâ—l apres possi ilitâ— c. tenant per le Curtesie c. Tenant for years Tenaâ—â—â—y staâ—ute Merchant c 39 Ass 15. 43 E. 3 Enter coâ—g 3 â—2 H 5. 7 39 E. 3. 16. 45 E 3. 25. If Tenaâ—â—â—or life in remaâ—â—der make continuall Claim and the Aliene â—f the first Tenant for life dye seised then may he in the remainder for life enter and the right of entry which he gained by his entry shall go to him in the remainder in fee in respect of the privity of the estate And so it is of him in the reversion in fee in like case for he is also privy in estate If Tenant iâ— Tail the remainder in fee with garr have Iudgement to recover in value and dye before execution without issue he in remainder shall sue Execution for hee hath right thereunto and is privie in estate So if a Seigniory be graâ—teâ—â—o one by Fine the grantee for life dyeth he in remainder shall have a per que servit for he hath right to the remainder and is privy in estate Sect 417 It is not sufficient to tell one generally what he should do but to direct him how and in what manner he shall do it Note that the entry of a man to recontinue his Inheritance or Freehold must ensue his action for recovery of the same Mich. 14 â—5 El. Rot. 1458. in the Earl of Arundels
year and a day but this Statute extends onely to Fines and not to Non-claim upon a judgement in a Writ of Right and therefore the Statute of â—â— E 3 16 which ousteth Non-claim onely to Fines levied extendeth not to a judgement in a Writ of Right to this day and therefore the Common Law in that case remaineth c. viz that claim must be made within a year and a day after judgement Also if a Fine be levied without Proclamations or without so many as the Law requireth then the Statute of Non-claim doth extend to such a Fine l 3 fo 44 c. Case del fines l 1. fo 96 Shelleys Case l 2 f 93 Binghams Case l 8 f 100 Lechfords Case l 91 f 139 c. Beaumands Case l 10. f â—9 b Lampots Case 99 a l 9 f 105 Margaret Podgers Case l 5. f 124 Saffins Case l 1â— 96 Seymors Case l 8 f 72. Greysleys Case l 11 â—65 7â— 78. Pl. Com. Smith and Stapl. Case Stows Case and Howels Case Bract. 435 Brit. 216 fo 262 a Finis finem litibus imponit A feme covert also they in reversion or remainder expectant upon any estate of Freehold are holpen by the Statute of 4 H 7 vide lib. fo â—62 b Sect. 442. In a Writ of entry sur disseisin against one supposing that he had not entry but by I. S. who disseised him the Tenant said that I.S. dyed seised and the land descended to him and prayed his age the Plaintiff counterpleaded his age for that he arraigned an Assize against S. who dyed hanging the Assize and he was ousted of his age for that the bringing of the Assize amounted to a Claim 24 E 3. 25. 9 E 2. Age 1â—1 If Tenant in Dower alien in fee with Warranty and the heir in the reversion bring a Writ of entry in Casu proviso c and hanging the plea the Tenant dyeth the heir shall not be rebutted or barred by this Warranty for that the Praecipe did amount to a continuall Claim 3 E 3. Garr 62. Fleta l. 6 c. 52 Bract. l. 5 fo 436 Fo. 263 a. Nota c. If the goods of Villain before any seisure c. be distrained the Lord may have a Replevin and the very bringing of the Writ doth amount to a Claim of the goods and vesteth the property in the Lord 33 E 3 Repl. 43 â—2 E 3 18. b 9 H â— 25. Nemo debet rem suam sine facto aut defectu suo emittere Sect. 443. If an usurpation be had to a Church in time of vacation this shall not prejudice the Successor to put him out of possession but that at the next avoidance he shall present F. N. B. 34 M.W. 2 c 5. imp excus c. When there is no Dean or Mayor the Chapter or Commonalty in that case cannot make claim because they have neither ability nor capacity to take or to sue any action But during the vacation of the Abathy of D. if a lease for life or a gift in Tail be made the remainder to the Abbot of D. and his Successors this remainder is good if there be aâ— Abbot made during the particular estate 2 H 7 13. 40 As 26. 34 E â— Garr 29. Qu. de dubiis c. Inter cuncta leges percunctabere doctos Hor. As Collatio peperit artes so Collatio perficit artes Crescente scientia cresunt simul dubitationes Autortias Philosophorum Medicorum Poetarum sunt in causis allegandae tenendae fo 264. a. CHAP. VIII Of Releases Sect. 444 REleases are of two sorts viz. a Release of all the right which a man hath either in lands and tenements or in goods and chattels Or there is a Release of actions real of or in lands or tenements or personal of or in goods or chattels or mixt partly in the realty partly in the personalty vide S 4â—2 Remis Relax quiet clamasse are proper words of Releases and be much of one effect besides there is Renunciare Acquietare and there be many other words of Release as if the lessor grants to the lessee for life that he shall be discharged of the rent vide S 532. Express Releases must of necessity be by Deed. Releases in Law are sometime by Deed and sometime without Deed. As if the Lord dissease the Tenant and make a Feoffment in fee by Deed or without Deed this is a Release of the Seigniory And so it is if the disseisee disseise the heir of the disseisor and make a Feoffment c this is a Release in Law of the right And the same Law is of a right in action 27 H 8. 29. Vse 34 H 6. 44. Attaint 3 E 3. 38. 21 E 4. 21. Pl. Com. de la mere If the Obligee make the Obligor his executor this is a release in law of the action but the duty remains for the which the executor may retain so much goods c. 8 E 4. 3. 21 E 4. 2. If the feme Obligee take the Obligor to husband this is a Release in Law So it is if there be two femes Obligees and the one take the debtor to husband 11 H 7. 4 â—0 H 7. 29 8 E 4. 3. If an Infant make the debtor his executor this is a good Release in Law of the action But if a feme execuâ—rix take the Debtor to husband this is no Release in Law for that should be a wrong to the dead and in Law work a Devastavit which an act of Law shall never work M. 30 31 Eâ— adjudged Note a diversity between a Release in Deed and a Release in Law â— for if the heir of the disseisor make a lease for life his right is gone for ever But if the disseisee doth disseise the heir of the disseisor and make a lease for life by this Release in Law the right is released but during the life of the lessee for a Release in Law shall be expounded more favorably according to the intent of the parties then a Release in Deed which is the act of the party and shall be taken most strongly against himself 30 E 3. 24 32 E 3. sc fac 102. Ius includeth not onely a right but also any Title or Claim either by force of a Condition Mortmain c. for the which no action is given by Law but onely an entry Sect. 446 fol. 265. a. Null droit passa per un release forsque le droit que le relesior ad al temps del release fait Note a man may have a present right though it take effect in possession but in futuro As he that hath a right to a reversion or remainder and such a right he that hath it may presently release Brit. fo 101. The Baron makes a lease for life and dieth the Release made by the wife of her Dower to him in reversion is good albeit she hath no cause of action against him in present 16 E 3. Bar. 245. Hoes Case 5.
part fo 70. 71. If there be Grandfather Father and Son and the 〈◊〉 disseise the Grandfather and make a Feoffment in fee the Grandfather dyeth the Father against his own Feoffment shall not enter but if he dye his Son shall enter And so note a diversity between a Release a Feoffment and a Warrant A release in that case is void a Feoffment is good against the Feoffor but not against his heir a Warrant is good both against himself and his heirs 39. H 6. 43 21. E 4. 81. 9 H 7. 1. b 2 E 3. 38 1â— H 4. 33. Note three diversities 1. Between a Power and an Authority 〈◊〉 a Right 2. Between Powers and Authorities themselves 3. Between a Right and a possibility 43 E 3. 17. 42 E 3. 24. per Finchden 17 E 3. 67. As to the 1. If a man by his will deviseth that his executors shall sell his land and dieth if the executors release all their right and title to the heir this is voidâ— for they have but onely a bare Authority And so it is if cestuâ— que use had devised that his Feoffees should have sold the land albeit they had made a Feoffment over yet might they sell the Vse for their Authority in that case it not given away by the liverâ— 1 H 7. 11. As to the second there is a diversity between such Powers and Authorities as are onely 〈◊〉 the use of a stranger and nothing for the benefit or him that made the Release as in the case before and a Power or Authority which respecteth the benefit of the Releasor as in these usual powers of revocation when the Feoffor c. hath a power to alter change determine or revoke the uses being intended for his benefit he may release and where the estates before were defeasible he may by his release make them absolute and seclude himself from any alteration or revocation l. 1. Albanâ—â—s case 10. H 6. 4. As to the third before Iudgement the Plaintiff in an action of debt releaseth to the Bail in the Kings Bench all Demands and after Iudgement is given this shall not baâ— the Plaintiff to have execution against the Bail because at the time of the release be had but a meer possibility and neither Ius in re nor Ius ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute c. release to the Conusor all his right in the land yet afterwards he may sue execution for he hath no right in the land till Execution but onely a possibility 25 Ass p. 7. 27 E 3. Execut. 130. P. 38. El. Rot. 521. Borough and Grey Sect. 447. En Releases de tout le droit que home ad en cert ' terres c. il covient a celuy a que le release est fait en asc ' case que il ad le franktenement en les terres en fait ou en ley al temps de release sait c. This must be intended of a bare right and not of a release of right whereby any estate passeth as to a lessee for years 49 E 3. 2â— Also it must be intended of a right of Freehold at the least and not to a right to any term for years or Chattels real as if lessee for years be ousted and he in the reversion disseised and the disseisor maketh a lease for years the first lessee may release unto him all which is implyed in the first c. Also in some case a Release of a right made to one that hath neither Freehold in deed nor in Law is good as the Demandant may release to the Vouchee and yet the Vouchee hath nothing in the Land for that when the Vouchee enters into the Warranty he becomes Tenant to the Demandant and may render the land to him in respect of the privity but an estranger cannot release to the Vouchee because in rei veritate he is not Tenant of the Land 7 E 4. 13. 20 H 6. 29. 5 H 7. 41. 18 E 3. 12. 8 H 4. 5. vide Sect. 490 491. And so it is if the Tenant alien hanging the Praecipe the Release of the Demandant to the Tenant to the Praecipe is good and yet he hath nothing in the land 20 E 4. 14. 12. Ass p. 41. In time of vacation an Annuity that the parson ought to pay may be released to the Patron in respect of the privity but a release to the Ordinary onely seemeth not good because the Annuity is Temporal 8 E 3 81. 46 E 3 6. b 21 H 7 41. If a disseisor make a lease for life the disseisee may release to him for to such a release of a bare right there needs no privity But if the disseisor make a lease for years the disseisee cannot releaâ— to him because he hath no estate of free hold And yet in some case a right of Freehold shall drown in a Chattle as if a feme hath a right oâ— Dower shee may release to the Guardian in Chivalry and her right of Freehold shall drown because the Writ of Dower doth lie against him and the heir shall take advantage by it And note That by a Maxime a right of entry or a chose in action cannot be granted or transferred to a stranger Mirr cap. 2 S 17. If a man be disseised of an acre of land the disseisee hath jus proprietatis the disseisor hath jus possessionis and if the disseisee release to the disseisor he hath jus proprietatis possessionis Reg. When a naked right to land is released to one that hath jus possessionis and the other by a mean title recovers the land from him the right of possession shall draw the naked right with it For example if the heir of the disseisor being in by discent A. doth disseise him the disseisee release to A. now hath A. the meer right to the land but if the heir of the disseisor enter into the land and regain the possession that shall draw with it the meer right c. Br. l 2. f. 32. Brittfâ— 8â— 121. But if the Donee in Tail discontinue in fee now is the reversion of the Donor turned to a naked right if the Donor release to the discontinuee and dye and the issue in Tail recover the land c. he shall leave the reversion in the discontinuee for the issue in Tail can recover but the estate Tail onely and the Donor cannot have it against his release but if the disseisee enter upon the heir of the disseisor and infeoff A in fee the heir of the disseisor recover the whole estate that shall draw with it the meet right and leave nothing in the Feoffee Another diversity is observable when the naked right is precedent before the accquisition of the defeasible estate for there the re-continuance of the defeasible estate shall not draw with it the preceding right As
there be Lord and Tenant and the Tenant be disseised and the disseisee die without heir the Lord accepts rent by the hands of the disseisâ—r this is no bar to him contrary it is if he avow for the rent in Court of Record or if he take a corporall service as homage or fealty for the disseisor is in by wrong but if the Lord accept the rent by the hands of the heir of the disseisor or of his Feoffee because they be in by title this shall bar him of his escheate which is to be understood of a discent or a Feoffment after the title of escheat accrued for if the disseisor make a Feoffment in Fee or die seised and after the disseisee die without heir then there is no escheat at all because the Lord hatâ— a Tenant in by title 7 E 6. escheat Br. 18. F.N. B. 1440. 7. H 4. 17 2 H 4. 8. 6 H 7. 9. vid. S. 556. Vpon the Statute 21 H 8. ca. 19. These four points are to be observed 1. That the Lord hath still election either to avow according to the Common Law by force of the Statute by reason of this word May. 2. Albeit the purview of the act be general yet all necessary incidents are to be supplied and the scope and end of the act to be taken and therefore though he need not to make his avowry upon any person certain yet he must alledge seisin by the hands of some Tenant in certain within 40. years 3. That if the avowry be made according to the Statute every plaintiffe in the replevin or second deliverance be he Termor or other may have every answer to the avowry that is sufficient and also have aid and every other advantage in Law disclaymer only excepted for disclaim he cannot because in that case the avowry is made upon no certain person 4. Where the words of the Statute be if the Lord distreine upon the Lands and Tenements holden yet if the Lord come to distraine and the Tenant enchase the beasts which were within the view out of the land holden â— there the Lord distreine c. in judgement of Law the distresse is lawfull and as taken within his fee and Seigniory and the Statute being made to suppresse fraud is to be taken by equity L 9. so 136. Ascoughs case 27 H 8. fo 4. 32 H 8. ca. 2. l. 9. f. 36 â—acknaâ—â— case 34 H 8. Avow Br. 113. l. 9. f. 22 case davow 11 H. 7. 4. 34 H 6. 18. 16 E 4. 10. 21 H 7. 40. Sect. 445. Fo. 269. Note a diversity between a release of a rent service out of Land and a release of right to land As if a Lease be made to F. one for life reserving to the lessor and his heirs a certaine rent If the lessee be disseised and after the lessor release to the lessee and his heirs all the right which he hath in the Land and after the lessee enter albeit in this case the rent is extinct yet nothing of the right of reversion shall passe But admit that the Donee in taile in such case make Feoffment in fee and the donor release unto him and hiâ— heirs all the right in the Land this shall extinguish the to â—t because the Lord must avow upon him and yet the Tenant in Tail after the Feoffment hath no right in the Land but the reason is in respect of the privity and that the donor is by necessity compellable to avow upon him only c. 1 H. 5. garr 43. 14. H. 4. 38. l. 3. fo 29. l. 6. 58 10. E. 3. 26. 48. E. 3 8. b. 31. E. 3. gard 116. 5. E. 4. 3 7. E. 4. 27. 15. E. 4. 13. Trin. 18. Eliz Sir Tho. Waits case in Com. Banco Nota c. Sect. 457 458. Si veray Tenant que est disseisin reign del fiâ—gn per service de chivalry mor. son heire eant deius age le siegn avera seisam le gard del heire mes si tiel tenant fist Feoffment in fee c. auterment est 12 H. 4 13. 36 E. 3. gard 10. 6. H 7. 9. 37 H. 6. 1. 32. H. 6. 27. 7. E. 6. gard Br. There be four manner of avowries for rents and services c. viz. 1. Super verum tenentem as in the case here put 2. Supra verum tenentem in forma praedicta as where a Lease for life or a gift in tail be made the remainder in fee. 3. Upon one as upon his Tenant of the Mannor omitting very and this is when the Lord hath a particular estate in the Seigniory and so shall the donor upon the donee or lessor upon the lessee 4. Sur la matter en la terre as within his fee and Seigniory As where the Tenant by knights service maketh a Lease for life reserving a rent and die his heir within age the gardein shall avow upon the lessee 2 H. 4. 24. 12. E. 4. 42. 26. H. 6. avowry 17. 9 El. Dyer 257. 5. H 7. 11. 7. E. 4. 24. 20. E. 3. avow 131. 47. E. 3. fo ult 38. H. 6. 23. Now by the Statute 21. H. 8. ca. 19. The very Lord may avow as in Lands within his fee and Seigniory without avowing upon person in certainty Note a diversity if Tenant in Tail make a Feoffment in fee yet the right of the Tenant in tail remains and shall descend to the issue in tail But when the Tenant in fee simple make a Feoffment in fee no right at all remains of his estate but when the whole is transferred to the Feoffee Also the Lord is not compellable in that case to avow upon the Feoffor but if he will as Littleton here saith he may avow on the Feoffee but so it is not in case of tenant in tail Fol. 269. b. Note a diversity between actions and acts which concern the right and actions and acts which concern the possession only for a writ of customs and services lyeth not against the Feoffor nor a release to him shall extinguish the Seigniory So if a rescous be made an Ass shall not lie against the Feoffor and him that made the Rescous because the Feoffee is Tenant and in Ass the surplusage incroached shall be avoided for these actions and acts concern the right but of a seisin and avowry which concern the possession it is otherwise and if the Lord release to the Feoffor this is good between them as to the possession and discharge of the arerages but the Feoffee shall not take benefit of it for that it extended but to the right But the Feoffor shall plead a release to the Feoffee for thereby the Seigniory is extinct as if the lessee for life doth wast and grant over his estate and the lesser release to the grantee in an action of wast against the lessee he shall plead the release and yet he hath nothing in the land and so in wast shall Tenant in Dower or by the curtesie in the like case and
the vouchee and the Tenant in praecipe after a Feoffment made and so in a contra formam collationis Nota c. If there be Lord and Tenant and the rent is behind for divers years and the Tenant make a Feoffment in fee if the Lord accept the service or rent of the Feoffee due in his time he shall lose the arrerages due in the time of the Feoffor for after such acceptance he shall not avow upon the Feoffor nor upon the Feoffee for the arrerages due c. But in that case if the Feoffor dieth albeit the Lord accept the rent or service by the hand of the Feoffee due in his time he shal not lose the arrerages for now the Law compelleth him to avow upon the Feoffee and that which the Law compelleth him unto shall not prejudice him 4 E. 3. 22. 7. E. 3. 8. 7. E. 4. 27. 29. H. 8. avow Br. 111. l. 3. fo 65. 66. Pennants case 7. H. 4. 14. 2. E. 4. 6 3. 4. H. 6. 46. 47. E. 3. 4. Vide lib. c. Sect. 459. If a man make a lease for years the Remainder for years and the first lessee doth enter a release to him in remainder for years is good to inlarge his estate 22. E. 4. Surr. 6. But if a lease be made to begin at Michaelmas reserving a rent and before the day the lesser release all the right that he hath in the land this cannot enure to inlarge the estate but to extinguish the rent in respect of the privity M. 39. 40 El in Scacc. Sir H. Woodhouse and Sir Will. Paston A man grants the next avoidance of an advowson to two the one of them before the Ch. become void for after it becoms void it is but a thing in action may release to the other for although the grantor cannot release to them to incâ—ease their estate because their interest is future and not in possession yet one of them to extinguish his interest may release to the other in respect of the privity P. 38. El. Qu. imp per Bonnet vers levesque Norwich in Com. Ban. Note that seeing lessee for years hath interesse termini before euery he may grant it over albeit for want of an actuall possession he is not capable of a release to inlarge his estate Pl. Com. 423. But if a man make a release for life the remainder for life and the first lessee dieth a release to him in remainder and his heirs is good before he doth enter to inlarge his estate for that he hath an estate of a freehold in Law in him Sect. 460. and 461. A release to a Tenant at will is good because between them there is a possession with privity but a release to a Tenant at sufferance is void because he hath a possession without privity 21. H 6. 37. 2 E. 4. 6. b. 7. E. 4. 27. 8. 4. 16. 29. H. 6. Rel. 6. Fo. 270. b. But if a man enter into Land of his own wrong and take the profits his words to hold it at the will of the owner cannot qualifie his wrong but he is a disseisor and then the release to him is good or if the owner consent thereunto then he is a Tenant at will and that way also the release is good Temps H 8 Tenant a. vol. l. 5. 2. E. 4. 38. 13. E. 3. Ass 86. But there is a diversity when one cometh to a particular estate in land by the act of the party and when by act in law for if the Gardein hold over he is an Abator because his interest came by acts in Law 10. E. 4. 9. 10. Privity is fourfold First Privies in estate as between the donor and donee lessor and lessee which privity is ever immediate 2. Privies in bloud as the heir to his Ancestor or between Coparcerners c. 3. Privies in representation as executors c. to the Testator 4. Privity in tenure as the Lord and Tenant c. which may be reduced to generall heads Privies in Deed and Privies in Law Old N.B. 117. 137. l. 4. fo 23. Walkers case l. 4. f. 123. c. Vide S. 454. Sect. 462. and 463. VVhen a Feoffment is made to a future use as to the performance of his last Will the Feoffees shall de seised to the use of the Feoffor and of his heirs in the mean time And reason would That seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in praesenti the use of the inheritance shall be to the Feoffor and his heirs as a thing not disposed of 35. H. 6. Subpoena 22. 15. H. 7. 12. b. 37. H. 6. 36. 11. H. 4. 52. 7. H. 4. 22. 1. M. 1 11. Dyer And note a diversity between a Feoffment at lands at this day upon confidence or to the intent to perform his last Will and a Feoffment to the use of such person and persons and of such estate and estates as he shall appoint by his last Will for in the first case the land passeth by the Will and not by the Feoffment for after the Feoffment the feoffor was seised in fee simple as he was before but in latter case the Will pursuing his power is but a direction of the uses of the feoffment and the estates pass by execution of the uses which were raised upon the feoffment but in both cases the feoffees are seised to the use of the feoffor and his heirs in the mean time l. 6. fo 17 18. Sir Edw. Cleres Case fo 271. b. Note uses are raised either by transmutation of the state as by Fine Feoffment Common Recovery c. or out of the state of the owner of the land by bargain and sale c. or by Covenant upon lawfull cosideration Dillon and Frayns case l. 1. c. fo 113. There cannot be two uses in esse of one and the same land But if A. disseise one to the use of B. and doth bargain and sell the land for money to C.C. hath an use and here be two uses of one land but of severall natures the one viz. upon the bargain and sale to be executed by the Statute and the other not But since Littleton wrote all uses are transferred by Act of Parliament into possession 27. H. 8. cap. 10. Sect. 464. Fol. 272. a. By the Statute of 2. H. 5. cap. 3. Stat. 2. it is enacted that in three cases he that passeth in an Enquest ought to have lands tenements to the value of 40. s. viz. 1. Upon Triall of the death of a man 2. In Plea reall between party and party And 3. In Plea personall where the debt or or and the damages in the Declaration amount unto forty Marks 28. H. 8. Dyer fol. 9. 9. H. 5. fol.
the Feoffee this release shall take away the entry of the disseisor for the alienation which was made to his disinheritance he having the inheritance by disseisin so as he could have no warranty annexed to it and Tenant for life forfeited his estate But if the entry of the disseisee were not lawfull it is otherwise as the Book of 9. H. 7. 25. is of an estate Tail mutatis mutandis Vide l. fo 277. a. Sect. 475. Abate Vide N.B. 115. Brit. cap. 51. Bract. l. 4. cap. 2. Abatamentum is an entry by interposition A Disseisin is a wrongfull putting out of him that is actually seised of a Freehold and Abatement is when a man died seised of an estate of Inheritance and between the death and entry of the heir an estranger doth interpose himself and abate Intrusion 1. properly is when the Ancestor died seised of any estate of inheritance expectant upon an estate for life and then Tenant for life dieth c. and an estranger doth interpose himself and intrude 2. He that enters upon any of the Kings demesns and taketh the profits is said to intrude upon the Kings Possessions F.N.B. 203. Fleta l. 4. cap. 30. Pl. Com. case de Mynes 3. When the heir in ward enters at his full age without satisfaction for his marriage the writ saith quod intrusit F.N. B. 141. F. Deforciamentum comprehendeth not only these aforenamed but any man that holdeth Land whereunto another man hath right be it by discent or purchase is said to be a deforcer Usurpation hath two significations in the common Law one when an estranger that no right hath presenteth to a Church and his Clark is admitted and instituted 2. When any subject doth use without lawful warrant Royall franchises he is good to usurp c. Purprestura est c. generaliter quories aliquid sit ad nocumentum regii tenementi vel regiae viae vel aliquarum publicar vel civitatis c. Glanv l. 9. ca. 11. Brit. fo 28. 29. And because it is properly when there is a house builded or an inclosure made of any part of the Kings demesne or of an high way or a common street or publike water or such publike things it is derived of the French word Pourpris which signifieth an inclosure but specially applyed as is aforesaid by the common Law Sic nota differentiam inter disseisinam Abatamentum Intrusionem deforciamentum usurpationem purpresturam Sect. 476. Fo. â—77 b. But if the Feoffee upon condition make a Feoffment in fee over without any condition and the disseisee release to the second Feoffee the condition is destroyed by the release before the condition broken or after for the state of the second Feoffee was not upon any express condition as Littleton here putteth his case and he may have advantage of the release because it is not against his own proper acceptance as Littleton speaketh in the next Section L. 1. fo 147. Mayowes case But if it be a wrongfull title such a title is taken away by a release As if A. disseised B. to the use of C.B. release to A. this shall take away the agreement of C. to the disseisin because it should make him a wrong doer as if the disseisor be disseised the disseisee release to the second disseisee this taketh away the right of the first disseisor had against the second and a relation of an estate gained by wrong shall never defeat an estate subsequent gained by right against a single opinion not affirmed by any other in our books 14. H. 8. 11. per Portm Si disseisee release al Feoffee sur condition ceo namendre lestate le Feoffee c. Sect. 477. Fo. 478. a. Home navera advantage per un release que serre enconter son proper acceptance encounter son grant dem compt que asc ' ont dit que lou enier de hâ—me est congeable sur un tenant sil release a mes le tenant que ceo availoit a le tenant sicom il ust enter sur le tenant puis luy infeoffa c. ceo neâ— pas voier en chesc ' cas Car si le disseisee ust enter sur le Feoffee sur condition puis luy infeoffa donques est le condition tout defeat mes il ne pas void per asc ' tiel release sant entry fait c. If A. and B. be joynt disseisors and B. grant a rent charge and the disseisee release to A. all his right A. shall avoid the rent charge because it was not granted by him and so not within the reason of our authour If two disseisors be and they infeoffee another and take back an estate for life or in fee albeit they remain disseisors to the disseisee as to have an Ass against them yet if he release to one of them he shall not hold our his companion because their state in the land is in by Feoffment If there be two disseisors and they be disseised and they release to their disseisor and after disseise him and then the disseisee release to one or both of them yet the second disseisor shall reenter for they shall not hold the land against their own release If a disseisee release to one of the disseisors to some purpose this shall enure by way of entry and Feoffment viz. as to hold out his companion But as to a rent Charge granted by him it shall not enure by way of entry and Feoffment for if the disseisee had entred and enfeoffed him the rent charge had been avoided But it is a certain rule that when the entry of a man is congeable and he release to one that is in by title as here to the Feoffee upon condition is it shall never enure by way of entry and Feoffment either to avoid a condition with which he accepted the land charged or his own grant or to hold out his companion And where it appeareth by our authour that acts done by the disseisor shall not be avoided by the release of the disseisee It is to be noted that acts made to the disseisor himself shall not be avoided by the alteration of his estate by the release of the disseisee as if the Lord before the release had confirmed the estate of the disseisor to hold by lesser services the disseisor shall take advantage of it and so of estovers to be burnt in the house and the like Law is of a warrantty made unto him If an alien be a disseisor and obtain letters of denization and then the disseisee release unto him the King shall not have the land for the release hath altered the estate and it is as it were a new purchase otherwise it is if the alien had been the Feoffee of a disseisor Fo. 278. b. If the Lord disseise the Tenant and is disseised the disseisee release to the second disseisor yet the Seignory is not revived for between the parties the release enures by way
was se defendendo c. 2. That in any action upon the case Trespasse Battery or of false imprisonment against any Justice of Peace Mayor or Bayliff of City c. in any his Majesties Courts in Westminster or elswhere concerning any thing by any of them done by reason of any of their Officers aforesaid and all other in their aid or assistance or by their Commandement c. they may plead the generall issue and give the speciall matter for their excuse or justification in evidence 7. Ja. c. 5. 23. H. 8. c. 5. Probationes debent esse evidentes i.e. perspicuae faciles intelligi If the Trespass were done the 4. of May and the Plaintiff alleageth the same to be done the 5. of May or the 1. of May when no trespass was done yet if upon the evidence it falleth out that the trespass was done before the action brought it sufficeth 19. H. 6. 47. 5. E. 4. 5. 21. E. 4. 66. And Littleton saith That the Jury may find the Defendant guilty at another day then the Plaintiff supposeth Note That the Law of England respecteth the effect and substance of the matter and not every nicety of form or circumstance Qui haeret in litera haeret in Cortice apices juris non sunt jura Sect. 487. Fo. 283. b. Note a diversity when the possession is first and then a right cometh thereunto the entry of him that hath right to the possession shall gain also the right 50. E. 3. 78. Vide S. 447. But when the right is first and then the possession cometh to the right albeit the possession be defeated as here in Littletons case it is by the heir of the disseisor yet the right of the disseisee remaineth A dyeth seised and the Land descendeth to B. his Son before he enter an estranger abate and dieth seised B. enter against whom the heir of the Abator recovers in an Assize B. may have a Writ of Mortdan and recover the land against him And if the disseisin had been done to A. c. then after the recovery in the Assize B. should have had a Writ of entry in the per because the heir that is in by discent is in the per. Sect. 490. 491. En praecipe quod red If the Tenant alien the land hanging the Writ puis le Demandant release a luy tout son droit c. cel release est bone pur ceo que il est suppose terre tenant per le suit del Demandant uncore il nad riens en la terre al temps de release fait Item si en praecipe c. le tenant vouch le vouchee entry en garr ' si apres le demandant release c. al vouchee co est assets bone pur ceo que apres le vouchee avoit entry en le garr ' il est tenant en ley al demandant c. But if after the vouchee hath entred into Warranty and become Tenant in Law an Ancestor collaterall release to the vouchee with Warranty he shall not plead this against the Demandant for that the release by the estranger is void 10. E. 4. 13. 12. Ass 41. 7. E. 3. 6. 8. H. 7. 5. Dyer 17. El. 341. Sect. 447. Sect. 492. Fol. 285. a. Nota there be two kinds of actions viz. concerning 1. Placita Coronae or Placita Criminalia 2. Placita Communia seu Civilia Of actions concerning Common Pleas quaedam sunt ad rem quaedam in personam quaedam mixtae Vide S. 444. Actio nihil aliud est quà m jus prosequendi in judicio quod sibi debetur Or Action nest auter chose que loial demand de son droit And by the release of all actions causes of action be released but within a submission of all actions to Arbitrement causes of action are not contained lib. 8. 153. Althams Case 35. H. 8. Dyer 57. 5. Mar. 217. 36. H. 6. 8. vide 42. E. 3. 22 23. Note a diversity A man by his own cannot alter the nature of his action and therefore if the lessee for life or years do waste now is an action of Waste given to the lessor wherein he shall recover two things viz. the place wasted and treble damages But by act in Law the nature of the action may be changed as if a man make a lease pur terme daughter vie and the lessee doth waste and then Cesty que vie dieth an action of VVaste shall lie for damages only because the other is determined by act in Law 14. H. 8. 14. 23. H. 8. Br. Waste And again hereupon is another diversity to be observed that in case when an action is well begun and part of the action determined by act in Law and yet the like action for the residue is given there the VVrit shall not abate but proceed But where by the determination of part the like action for the residue remaineth not there the action well commenced shall abate 9. E. 4. 50. But if Tenant pur auter vie bring an Assize and Cesty que vie dieth hanging the VVrit albeit the VVrit were well commenced yet the VVrit shall abate because no Assize can be maintained for damages only Also an action of VVaste must be ad exbaereditatem 2. H. 4. 22. 6. E. 2. breve 807. vide c. If a VVrit of Annuity be brought and the Annuity determineth hanging the VVrit the VVrit faileth for ever because no like action can be maintained for the arrerages onely but for the annuity and arrerages 34. H. 6. 10. 9. E. 4. 39. 14. H. 7. 31. But where damages onely are to be recovered there albeit by act in Law the like action lieth not afterwards yet the action well commenced shall proceed as if a Conspiracy be brought against two and one of them die hanging the VVrit it shall proceed 22. R. 2. breve 888. 18. E. 4. 1. And in an Assize of No. Diss a VVrit of Annuity Qu. Imp. and other mixt actions a release of actions reals is a good plea and so it is of a release of actions personalls 2. H. 4. 13. 9. H. 6. 57. But if three joyntenants be disseised and they arraign an Assize and one of them release to the disseisor all actions personalls this shall bar him but it shall not bar the other Plaintiffs for having regard to them realty shall be preferred omne majus trahit ad se minus dignum 30. H. 6. Barre 59. 45. E. 3. fo 6. So it is in a Writ of Ward brought by two c. Nota diversit In reall actions where damages are not to be recovered by the Common Law as in an Assize c. but are given by the Statute there a release of all actions personalls is no bar as in the Writ of Dower Entry sur disseisin in le per c. Mordane Aiel c. Mert. cap. 1. Dower Gloc. cap. 1. Sect. 493 494. fol. 258. b. A Release of actions personalls is
in Curia nostra rite acta sunt debitae executioni demandari debent parum est latam esse sententiam nisi mandetur executioni Executio juris non habet injuriam Executio est fructus finis legis Juris effectus in executione coufistit Prosecutio legis est gravis vexatio executio legis coronat opus Boni judicis est judicium fine dilatione mendare executioni Favorabiliores sunt executiones aliis processibus quibuscunque When Littleton wrote by force of certain Acts of Parliament execution mtght be had of lands besides by force of the Elegit upon Statute Merchant Statute Staple and Recognizances taken in some Court of Record and since he wrote upon a Recognizance or Bond taken by force of the Statute 23. H. 8. before one of the Chief Justices or the Mayor of the Staple and Recorder of London out of Term which hath the effect of a Statute Staple 11. E. 1. Stat. de Acton Burnel 13. E. 1. de Mercat 27. E. 3. c. 22. 23. H. 8. cap. 6. 25. E. 3. 53. vide 32. H. 8. c. 5. a profitable Statute concerning executions of Lands Tenements c. Sed opus est interprete Vide fo 289. lib. 4. fo 66. Fulwoods Case If a man have a Judgement given against him for debt or damage or be bound in a Recognizance and dyeth his heir within age or having two daughters and the one within age no execution shall be sued of the Lands by Elegit during the minority albeit the heir is not specially bound but charged as Terre-tenant 15. E. 3. Age 95. 24. E. 3. 28. 29 Ass 37. 29. E. 3. 50. 47. Ass 4. 47. E. 3. 7. lib 3. f. 13. Brook Age 33. And so against an heir within age no execution shall be sued upon a Statute Merchant or Staple nor upon the obligation or recognizance upon the Statute 23. H. 8. for it is excepted in the processe against the heir Neither if the heir within age endow his mother shall execution be sued against her during his minority Temps E. 1. 402. 417. fo 290. a. Vide le statute 13. Eliz. cap. 5. made against fraudulent Feoffments gifts grants c. Judgements and Executions as well of lands and tenements as of goods and chattells to delay hinder or defraud Creditors and others of their just and lawfull Actions Suits Debts Damages Penalties Forfeitures Heriots Mortuaries and Releases Sed opus est c. Lib. 3. fo 80. c. Troyns Case l. 5. f 67. Gooches Case l. 6. f. 18. Pakemans Case l. 10. f. 56. the Chancellor of Oxfords Case See the Statute of 3. H. 7. c. 4. 50. E. 3. c. 6. M. 12. 13. Eliz Dyer 295. 18. Eliz. 451. Dyer Elegit is a judicial Writ and is given by the Statute either upon a recovery for debt or damages or upon a Recognizance in any Court The words of the writ be Elegit sibi liberari c. By this Writ the Sheriff shall deliver to the Plaintiff Omnia catalla debitoris exceptis bobus afris Carucae medietatem terrae And this must be done by an Enquest to be taken by the Sheriff W. 2. c. 18. W. 2. c. 18. Fieri fac is a Writ mentioned in the said Statute but is a Writ of Execution at the Common Law and is called a Fieri fac because the words of the Writ directed to the Sheriff be quod fieri fac de bonis catallis c. But note that a Capias ad satisfac is not mentioned in the said Statute because no Capias ad satisfac did lie at the Common Law upon a Judgement for debt c. or damages but only when the originall action was Qu. vi armis c. but later Statutes have given a Capias ad satisfac where debt c. or damages are recovered Lib. 3. fo 11. Sir William Herberts Case And note that these three Writs of Execution ought to be sued out within the year and the day after Judgment but if the Plaintiff sueth out any of them within the year he may continue the same after the year untill he hath execution And to none of these Writs of executions the Defendant can plead but if he hath any matter since the Judgment to discharge him of execution as a release of all executions c. he may have an Audita querela and relieve himself that way Sect. 505. Fol. 290. b. Scire fac is a judiciall Writ and properly lieth after the year and day after Judgment given But because the Defendant may thereupon plead this Scire fac is accounted in Law to be in nature of an action and therefore a release of all actions is a good bar of the same and so is a release of executions c. 19. H. 6. 3. 4. 18. E. 4. 7. This Writ was given in this case by the Statute of W. 2. c. 45. for at the Common Law if the Plaintiff had surceased to sue execution by fieri fac or levari fac a year and a day he had been driven to his new Originall 8. E. 3. 297 298. 18 E. 3. 33. l. 3. 12. Note that every Writ whereunto the Defendant may plead be it Originall or Judiciall is in Law an action Sect. 507. Fol. 291. a. Note a diversity between a release of all actions and a release of all suits If a man release all suits all execution is gone for no man can have execution without prayer and suit but the King only 26. H. 6. Exec. 4 l. 8. f. 153. Ed. Althams case Brook tit Rel. 87. So if the body of a man be taken in execution and the Plaintiff release all actions yet shall he remain in execution but if he release all debts or duties it is otherwise 26. H. 6. Exec. 7. If A. be accountable to B. and B. release him all his duties this is no bar in an action of account for what shall fall out upon the account is incertain but duties do extend to all things due that is certain and therefore dischargeth Judgments in personall actions and executions also 20. H. 6. per Paston Sect. 508 509 510 511. Fol. 291. b. 292. a. There be two kinds of Demands or Claims Pl. Com. Stiles Case 359 c. 1. Express or in deed as in all reall actions 2. Implyed or in Law as 1. In all actions personall 2. In actions of Appeals 3. Of execution 4. Of Title or right of Entry either by force of a condition or by any former Right 5. Of a rent service rent charge common of pasture c. verte fol. All which Littleton here and in the two next Sections following putteth but for example for by the release of all Demands other things also be released as rents seck all mixt actions a Warranty which is a Covenant reall and all other Covenants reall and personall Estovers all manner of Commons and profit appender Conditions before they be broken or performed or after Annuities
the Confirmation extendeth not to the rent suspended otherwise it is of a release in both cases Est bone sure chose en chesc ' confirmation d'aver ceux parolls a aver tener les tenements c. en fee ou en fee tail ou pur terme de vie ou pur terme dans solonque eo que le case est c. Note the diversity between a Confirmation of the estate for life in the land to have and to hold the said state in the land to him and his heirs this cannot enlarge his estate for his estate being but for life cannot be extended to his heirs But in that case if he confirme the state for life in the land in the premises of the Deed and the habendum is to have and to hold the land to him and his heirs this shall create in him a fee simple 18 E. 3. 40. Sect. 525. If a man letteth land to the husband and wife to have and to hold the one moity to the husband for terme of his life and the other moity to the wife for her life and the lessor confirm the estate of them both in the land to have and to hold to them and to their heirs by this Confirmation as to the moity of the husband it enureth only to the husband and his heirs for the wife had nothing in that moity but as to the moity of the wife they are joyntenants for the husband hath such an estate in his wifes moity in her right as is capable of a Confirmation But if such a lease for life be made to two men by several moities and the lessor confirm their estates in the land to have and to hold to them and to their heirs they are Tenants in Common of the Inheritance for reg the Confirmation shall enure according to the quality and nature of the estate which it doth enlarge and encrease 18 Ass p. 3. 18 E. 3. Confirmation 17. fol. 299. b. If a lease for life be made to A. the remainder to B. for life and the lessor confirm c. A. taketh one moity to him and his heirs and therefore of the one moity he is seised for life the remainder to B. for life and then to him and his heirs of the other moity A. â—is seised for life the immediate inheritance to B. and his heirs because as to the moity which B. takes the same is executed 39 H. 6. 9 If lands be given to two men and to the heirs of their two bodies begotten and the Donor confirm their two estates in the land to have and to hold the land to them two and to their heirs in this case some are of opinion that they shall be joyntenants of the fee simple because the Donees were jointenants for life and the Confirmation must enure according to the estate which they have in possession and that was joynt But others hold the contrary For 1. They say that the Donees have to some purposes severall inheritances executed though between the Donees survivor shall hold for their lives 2. They say that when the whole estate which comprehended severall inheritances is confirmed the Confirmation must enure according to the severall inheritances which is the greater and most perdurable estate and therefore that the Donees shall be Tenants in Common of the inheritance in this case Albeit in this case of Littleton the husband by the Confirmation gaineth an estate for life in remainder yet if the husband doth waste an action of Waste shall lie against him and his wife notwithstanding the mean remainder because the husband himself committeth the wast and doth the wrong 17 E. 3. 68. b. Sir Edward Caries Case lib. 5. fo 76. b. Sect. 526 527. Fol. 300. a. Note a diversity between a lease for life and a lease for years made to a feme covert for her estate of Freehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Chattels reals as leases for years Wardships c. are not given to the husband absolutely as all Chattels personals are by the intermarriage but conditionally if the husband happen to survive her and he hath power to alien them at his pleasure but in the mean time the husband is possessed of the Chattels reall in her right 5 E 3. 17. b. Pl. Com. 418. b. 24. H. 4. 12. Pl. Com. Dame Hales Case 50 Ass p. 15. 4 H. 6. 5. 7 H. 6. 1. 21 H. 7. 29. 21 E. 4. 40. 26 H. 8. 7. Such a thing as I may defeat by my Entry I may make good by my Confirmation 11 H 7. 28. 3 H 4. 10. If the feoffee upon condition grant a rent charge en fee and the feoffor confirm it and after the Condition is broken and the feoffor enter he shall not avoid the rent charge And so it is if the heir of the diffeisor grant a rent charge and the disseisee confirmeth it and after recover the Land he shall not avoid the rent And yet in neither of these cases his entry was congeable at the time of the Confirmation Lib. 1. fo 147. c. Anne Mayowes case Sect. 528. Fol. 300. b. Persona is said to be seised in jure Ecclesiae and the Law had an excellent end herein viz. that in his person the Church might sue for and defend her right and also be sued by any that had an elder and better right and when the Church is full it is said to be plena consulta of such a one person thereof that may vicem seu personam gerere ejusdem Ecclesiae Brit. fol. 234. b. F.N. 48. A. Parson of D. is Patron of the Church of S. as belonging to his Church and presents B. who by consent of A. and of the Ordinary grant a rent charge out of the Gleab this is not good to make the rent charge perpetuall without the assent of the Patron of A. no more then the assent of the Bishop who is Patron without the Dean or Chapter or no more then the assent of the Patron being Tenant in Tail or for life as Littleton saith And Littleton here saith that the Patron that confirms must have a fee simple meaning to make the charge perpetuall And Littleton after saith that in the case of the Parson the fee is in abeiance and seeing the consent of the Patron is in respect of his interest as heir it appeareth by Littleton he may consent upon Condition otherwise it is of an attornment because it is a bare assent Also if the state of the Patron be conditionall and he confirmeth and after the Condition is broken his Confirmation is void Lib. 2. 39 24 l. 1. 153 l. 4 23 24. l. 5. 31. 81. l. 10. 6. l. 11. 19. l. 6. 34. Note a diversity between a sole Corporation as Parson Prebend Vicar c. that have not the absolute fee in them for to their grants
of a grant of a rent service the attornment of the disseisee sufficeth 21 H. 6. 9. b. It was holden by Dyer and Mounson in the Argument of Brace bridges case that if he that hath a rent charge granteth it over for life and the Tenant of the Land attorn thereunto and after he grant the reversion of the rent charge that the grantee for life may attorne alone and that these words of Littleton are to be understood when a rent charge or rent seck is granted in possession and a quid juris clamat in that case did lye against the grantee for life 46 E. 3. 27. 2 H. 6. 9. Vide Littleton Sect 549. and 553. A man maketh a Lease for life and after grants to A. a rent charge out of the reversion A. grants the rent over he in the reversion must Attorne and not the Tenant of the freehold for that the freehold is not charged with the rent for a release made to him by the grantee doth not extinguish the rent and Littleton is to be understood that the Tenant of the freehold must attorne when the freehold is charged Vide fo 312. a. Littleton speaketh of five kindes of inheritances whereto an Attornement is requisite 1. Of a Seignory rent service c. 2. Of a rent charge 3. Of rent seck 4. Of a reversion 5. Of a remainder of Lands For the Tenant shall never need to Attorne but when there is tenure attendance remainder or payment of a rent And therefore if an annuity common of pasture common of estovers be granted for life or years c. the reversion may be granted without any Attornment 21 H. 7. 1. 1 H. 5. 1. 37. Ass 14. 36. Ass p. 3. 31 H. 8. Attorn Br. 59. Sect. 557. Fol. 312. b. In this case of Littleton by this escheat of the remainder the Seigniory is extinct for the fee simple of the Seigniory being extinct there cannot remain a particular estate for life thereof in respect of the tenure and attendance over 3. 3 H. 6. 1. old tenures 107. 15 E. 4. 15. a. per Littleton But otherwise it is of a rent charge in fee for if that be granted for life and after he in the reversion purchase the Land so as the reversion of the rent charge is extinct yet the grantee for life shall enjoy the rent during his life for there is no tenure or attendance in this case Sect. 558 559. Fo. 313. a. Littleton now commeth to speak of Atornments in Law or implyed 3 E. 3. 42. 15 E 3. Attorne 11. If the Lord grant his Signiory to the Tenant of the land and to a stranger and the Tenant accept the Deed this acceptance is a good Attornment to extinguish the one moity and to vest the other moity in the grantee Suspense is when a Seigniory Rent profit apprehend c. by reason of unity of possession of the Rent Seigniory c. of the Land out of which they issue are not in esse for a time and they are said to be extinguished when they are gone for ever and can never be revived that is when one man hath as high and perdurable estate in the one as in the other Sect. 560. 561. Fol. 313. a. b. Note that albeit a grant may enure by way of release and a release to the Tenant for life doth work an absulute extinguishment whereof he in the remainder shall take benefit yet the Law shall never make any construction against the purport of the grant to the prejudice of any or against the meaning of the parties c. Vide lib. c. Sect. 562. Fo. 314. a. Note a diversity when the whole estate in the Seigniory is suspended and when but part of the estate in the Seigniory is suspended but for terme of life and therefore as to all things concerning the right it hath its being but as the possession during the particular estate the grantee shall take no benefit therefore during that time he shall have no rent service Wardship Relief Heriot c. because these belong to the possession but if the Tenant dyeth without heir the Tenancy shall escheat unto the grantee for that it is in the right and yet when the Seigniory is revived by the death of the Tenant there shall be wardship as if the Tenant marry with the Seignioresse and dyeth his heire within age they shall have the wardship of the heire Also in the case that Littleton here putteth albeit the Seigniory be suspended but for life yet some hold that he cannot grant it over because the grantee took it suspended and it was never in esse in him but if the Tenant make a Lease for years or for life to the Lord there the Lord may grant it over because the Seigniory was in esse in him and the fee simple of the Seigniory is not suspended but if the Lord disseise the Tenant or the Tenant infeoffe the Lord upon condition there the whole estate in the Seigniory is suspended and therefore he cannot during the suspension take benefit of any escheat or grant over his Seigniory 34. Ass p. 15. 16 E. 3. vouch 83. 5 E. 3. Twongs case Sect. 563. 564. Fo. 314. Attornment for part cannot be void for that and good it cannot be unlesse it be for the whole 4 E. 3. 55. Malmans case 5 E. 4. 2. 7 H. 4. 10. 35 H. 6. 8. per prisot And payment of any parcell of the services is an agreement in Law to the grant 40 E. 3. 34. Intentio inservire debet legibus non leges intentioni 20 H. 6. Judgement in scire facias pur parcell de le services est bone attorn en ley commit que il est presume quod judicium redditur in invitum 48 E. 3. 24. 37 H. 6 14. per Moyle 17 E. 3. 29. Note that in case of Deed nothing passeth before attornment In the case of the fine the thing granted passeth as to the State but not to distraine c. without Attornment In the case of the King the thing granted doth passe both in estate and in privity to distreine c. without Attornment unlesse it be of Lands or Tenements that are parcell of the Dutchy of Lancaster and lye out of the County Palatine Sect. 565. Fo. 315. b. Note a diversity between money given by way of Attornment and where it is given as parcell of the Rent by way of seisin of the Rent And therefore a payment in name of seisin is more beneficiall for the grantee because this is both an actuall seisin and an Attornment in Law and yet being given before the day in which the Rent is due it shall not be abated out of the Rent 39 H. 6. 3. 26. 5 E. 4. 2. Vide S. 235. 7 H. 4. 2. Attorny Br. 97. Sect. 566. As of an Attornment so a seisin of a rent by the hands of one joynt-tenant is good for al and a seisin of part of the rent is a good seisin
H. 6. 33. 48 E. 3. 23. But now the Statute of 4 H. 7. 32 H. 8. having given a further strength to Fines to barre the issue in Taile the reason of the Common Law being taken away tâ—e Tenant in this case shall be compelled to attorn Windams Case ubi suprà Sect. 576. 577. fol. 319. a. Where a lease is made for life saving the reversion to the lessor if the lessor disseise the lessee and make a feoffment in fee if the Tenant for life enter and make Wast the feoffee shall have a Writt of Wast without any other Attornment for the lessee shall not be misconusant of the Feoffments that were made of and upon the same land And the reason of the Attornment is because the whole fee simple pass by the feoffment and the lessee by his Regress leaveth the reversion in the feoffee which is a good attornment The same Law it is of a Tenant by statute merchant or Staple or Elegit and so it is of a lease for yeares 46 E. 3. 30. b. 2 H. 5. 4. 5 H. 5. 12. Brasbritches case P. 15 Eliz. Some doe hold that in that case if the lessee for life doe recover in assize this is no Attornment because he comes to it by course of Law and not by his voluntary act And yet in that case as in the case of the Fine the state of the reversion is in the feoffee But others doe hold it all one in case of a recovery and a regres 18 E. 3. 48. b. lib. 6. fol. 60. b. Sir Moyle Fiuches Case If the lessor disseise Tenant for life or ouste Tenant for years and make a feoffment in fee by this the rent reserved upon the lease for life or years is not extinguished but by the regress of the lessee the rent is revived because it is incident to the reversion But if a man be seised of a rent in fee and disseise the Tenant of the land and make a feoffment in fee the Tenant re-enter the rent is not revived And so note a diversity between a rent incident to a reversion and a rent not incident to a reversion 9 H. 6. 16. Dean of Pauls Case 20 Eliz. If a man make a lease for life and then grant the reversion for life and the lessee attorn and after the lessor disseise the lessee for life and make a feoffment in fee and the lessee re-enter this shall leave a reversion in the grantee for life and another reversion in the feoffee and yet this is no Attornment in Law of the grantee for life because he doth no act nor assent to any which might amount to an Attonement in Law Et res inter alios acta alteri nocere non debet Neither hath the grantee for life the land in possession So as he may well be misconusant of the feoffment made upon the land and so out of the reason of Littleton But yet the reversion in fee doth pass to the feoffee Sect. 578 579. fo 319. b. 320. a. Where the Ancestor taketh an estate of Freehold and after a remainder is limited to his right heires the fee simple vesteth in himselfe as well as if it had been limited to him and his heirs for his right heirs are in this case words of limitation of estate and not a Purchase Otherwise it is where the Ancestor taketh but an estate for yeares As if a lease for years be made to A. the remainder to B. in Tail the remainder to the right heirs of A. there the remainder vesteth not in A. but the right heirs shall take by purchase if A. dye during the estate Tail for as the Ancestor and the heir are Correlativa of Inheritances so are the Testator and Executor and the Intestate and Administrator of Chattels Quod vanum inutile est lex non requirit Vide Sect. 194. 273. fo 320. a. The Conusee of a Fine before Attornment cannot distrain because an Avowry is in lieu of an action and thereunto privity is requisite So likewise and for the same cause he can have no action of Waste nor Writ of Entry ad Com. legem or in consimili casu or in casu proviso Writ of Customs and Services nor Writ of Ward c. 8 E 3. 44. 34 H. 6. 7. 12 E. 4. 4. 40 E. 3. 7. 5 H. 5. 12. 3 E. 2. Droit 33. But if a man make a lease for years and grant the reversion by Fine if the lessee be ousted and the Conuse disseised the Conusee without Attornment shall maintain an Assize for this Writ is maintained against a stranger where there needeth no privity and such things as the Lord may seise or enter into without suing any action there the Conusee before any Attornment may take benefit thereof as to seise a Ward or Heriot or to enter into the Lands or Tenements of a Ward or escheated to him or to enter for an alienation of Tenant for life or years or of Tenant by Statute Merchant Staple or Elegit to his disherison Sect. 580 581 582. Fo. 320. a.b. It is said in our Books that if Tenant for life have a priviledge not to be impeachable of Waste or any other priviledge if he doth attorn without saving his priviledge that he hath lost it which is to be understood where he attorneth in a Quid juris clamat brought by the Conusee of a Fine for that the Writ supposeth him to be but a bare Tenant for life and by his generall Attornment according to the Writ he is barred for ever to claim any priviledge but a bare estate for life But if upon a grant of the reversion by Deed the Tenant for life doth attorn he loseth no priviledge for there can be no conclusion or barre by the Attornment in palis and so it is of an Attornment in Law As if the lessor disseise the lessee for life and make a Feoffment in fee and the lessee re enter c. 43 E. 3. 5. 45 E. 3. 6. 39 H. 6. 25. F.N. B. 136. b. But in the Quid juris clamat if the Plantiff be within age so as he cannot acknowledge the priviledge the Tenant shall not be compelled to attorn untill his full age when he may acknowledge it 43 E. 3. 5. But otherwise it is as some hold if a Quid juris clamat be brought by Baron and feme the priviledge shall be entered into the Roll notwithstanding she is a feme covert 45 E. 3. 11. a. Vet. N. B. in per que servitia 39 H. 6. 25. 18 E. 4. 7. And in a per que servitia brought by the Conusee of the Mesne the Tenant may shew that he held by Homage Auncestrel and saving to him his Warrant and Acquitall he is ready to attorn So if the Tenant hath any other Acquittall and the Mesne levy a Fine to one for life the remainder to another in fee the Tenant for life bringeth a per que servit and the Tenant is ready to
le Baron soit seisee de cert terre en droit sa feme fait feoffement in fee sur Condition devy c. When the heir in this case hath entred for the Condition broken and hath avoided the feoffment the estate of the heir vanisheth away and presently the estate vesteth in the feme or her heirs without any Entry or Claim by her or them for the heir enters in respect of the Condition upon the reall Contract and not of any right and if the husband himselfe had re-entred the state had vested in his Wife And therefore where Littleton and our Books say That the wife shall enter upon the heir the meaning is That after the re-entry of the heir she may enter 4 H. 6. 2. 9 H 7. 24. b. l. 8. f. 43 44. Whittinghams Case Sect. 633. Fo 337. b. If the husband within age take a wife feme Tenant in Tail generall and the husband make a gift in Tail and dyeth within age in this case the wife may enter as Littleton here holdeth or the heir of the husband in respect of the new reversion descended unto him may enter But if the heir enter presently thereupon his estate vanisheth If husband and wife be both within age and they by deed indented joyn in a Feoffment reserving a rent the husband dyeth the wife may enter or have a Dum fuit infra aetat But if she were of full age she shall not have a Dum fuit infra aetat for the Non-age of her husband albeit they be but one person in Law 14 E. 3. Breve 282. 14 E. 3. Dum fuit c. 6. F. N B. 892. Sect. 634. 2. Joyntenants estant deins age fontun feoffment in fee lun de les infants devy celuy que survesquist poit enter en bentierly c. For that they may joyn in a Writ of Right and therefore the Right shall survive But they cannot joyn in a Dum fuit infra aetat because the Nonage of the one is not the Nonage of the other 21 E 3. 50. 18 E. 2. Breve 831. 6 E. 3. 4. 9 H. 6. 6. 19 H. 6. 6. 39 H. 6. 42. 34 H 6. 31. In this case if one joyntenant had made a Feoffment in fee and dyed the right should not have survived for the joynture was severed for a time If two joyntenants be and the one is of full age and the other within age and both they make a Feoffment in fee and he of full age dyeth The Infant shall enter or have a Dum fuit c. but for the moity Sect. 635. Fol. 337. b. Serroit encounter reason que un feoffment fait per celuy que ne fuit able de faire tiel feoffment greevara ou ledare auter de toller eux de lour entre c. Meliorem facere potest minor condic ' deteriorem nequaquam Bract. fo 14. Brit. f. 88. a. Nota a speciall heir shall take advantage of the infancy of the Ancestor As if Tenant in Tail of an acre of the Custome of Borough English make a Feoffment in fee within age and dyeth the yongest Son shall avoid it for he is privy in blood and claimeth by Discent from the Infant And so note that a cause to enter by reason of infancy is not like to Conditions Warranty and Estoppels which ever descend to the heir at the Common Law Sect. 636. Fol. 338. a. Note there be 3 kinds of Surrender viz. a Surrender properly taken at the Common Law which is a yielding up of an estate for life or years to him that hath an immediate estate in reversion or remainder wherein the estate for life or years may drown by mutuall agreement between them 2. A Surrender by Custom of Lands holden by Coppy or of Customary estate vide Sect. 74. homo com gen ** And 3. A Surrender improperly taken vide S. 550. of a Deed. And so of a Surrender of a Patent and of a rent newly created and of a fee simple to the King 2 El. Dyer 176. 14 H. 7. 3. 27 Ass 37. 49 E. 3. 2. 11 H. 4. 2. 12 H. 4. 21. 13 H. 4. 13. And a Surrendr properly taken is of two sorts viz. 1 A Surrender in Deed by expresse words whereof Littleton here putteth an Example and he putteth his case of a Surrender of an estate in possession for a right cannot be sureendered 2. A surrender in Law which in some cases is of greater force then a Surrender in Deed. As if a man make a lease for years to begin at Michaelmas next this future interest cannot be surrendred because there is no reversion wherein it may drown but by a surrender in Law it may be drowned As if the Lessee before Michaelmas take a new lease for years either to begin presently or at Michaelmas this is a surrender in Law of the former lease Fortior et aequior est dispositio legis quam hominis 14 H. 8. 15. 50 E. 3. 6. 44 Ass 3. 35 H. 8. Dyer 37. 8 Ass 20. 4 M. Dyer 141. 11 El. Dyer 280. 21 H. 7. 6. 14 H 7. 4. li. 6. fo 69. Sir Moyl Finches Case Also there is a Surrender without Deed whereof Littleon putteth here an Example of an estate for life of lands And also there is a Surrender by Deed and that is of things that lie in grant 16 H. 6. 33. 27 Ass 46. 14 H. 7. 4. 1 H. 6. 1 Pl. Com. 541. And albeit a particular estate be made of lands by Deed yet may it be surrendred without Deed in respect of the nature and quality of the thing demised because the particular might have beene made without Deed. and so on the other side If a man be * Tenant by the Curtesie or Tenant in Dower of an Advowson Rent or other thing that lies in grant albeit the estate begin without Deed yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendred without Deed. And so if a lease for life be made of lands the remainder for life albeit the remainder for life began without Deed yet because remainder and reversions though they be of lands are things that lie in grant they cannot be surrendred without Deed. Qu. fi le fits la feme poit enter c. It is holden of some That after the surrender the issue in Tail during the life of Tenant for life may enter for that having regard to the issue the state for life is drowned and consequently the inheritance gained by the lease is by the acceptance of the surrender vanished and gone as if Tenant in Tail make a lease for life whereby he gaineth a new reversion if Tenant for life surrender to the Tenant in Tail the estate for life being drowned the reversion gained by wrong is vanished c. and he is Tenant in Tail again against the opinion Obiter of Portington 21 H. 6. 53. vide lib. fo 338. b. Mes il nost rien a
faire pur ceo que tout le matter est icy transcribe verbatim But herein are two diversities Notable The first is that having regard to the parties to the surrender the estate is absolutely drowned as in this case between the lessee and the second Baron But having regard to strangers who were not parties or privies thereunto lest by a voluntary surrender they may receive prejudice touching any right or interest they had before the surrender the estate surrendred hath in consideration of Law a Continuance As if a reversion be granted with Warranty and Tenant for life surrender the grantee shall not have execution in value against the grantor who is a stranger during the life of Tenant for life for this surrender shall work no prejudice to the grantee who is a stranger 45 E. 3. 13. 5 H. 5. 9. 9 E. 4. 18. So if Tenant for life surrender to him in reversion being within age he shall not have his age for that should be a prejudice to a stranger who is become Demandant in a real action 40 E. 3. 13. 1 H. 6. 1. 24 E. 3. 77. If Tenant for life grant a rent charge and after surrender yet the rent remaineth for to that purpose he cometh in under the Charge 5 H. 5. 8. 26 Ass 38. 7 H. 6. 1. b. If a Bishop be seised of a rent charge in fee the Tenant of the land infeoff the Bishop and his successors the Lord enter for the Mortmain he shall hold it discharged of the rent for the entry for the Mortmain affirmeth the alienation in Mortmain and the Lord claimeth under his estate but if Tenant for life grant a rent in fee and after infeoff the grantee and the lessor enter for the forfeiture the rent is revived for the lessor doth claim above the Feoffment But if I grant the reversion of my Tenant for life to another for term of his life and Tenant for life attorn now is the waste of Tenant for life dishpunishable 48 E. 3. 16. Afterwards I release to the grantee for life and his heirs or grant the reversion to him and his heirs now albeit the Tenant for life be a stranger to it yet because he attorneth to the grantee for life the estate for life which the grantee had shall have no continuance in the eye of Law as to him but he shall be punished for Waste done afterwards The second diversity is That for the benefit of an estranger the estate for life is absolutely determined As if he in the reversion make a lease for years or grant a rent charge c. and then the lessee for life surrender the lease or rent shall commence maintenance So in the case of Littleton first between the lessee and the second husband the state for life is determined And 2. for the benefit of the issue it shall be so adjudged in Law Here note a diversity when it is to the prejudice of a stranger and when it is for his benefit If a man make a lease to A. for life reserving a rent of 40. s. to him and his heirs the remainder to B. for life the lessor grant the reversion in fee to B. A. attorneth B. shall not have the rent for that although the fee simple do drown the remainder for life between them yet as to a stranger it is in esse and therefore B. shall not have the rent but his heir shall have it A Master of an Hospital being a sole Corporation by the consent of his Brethren makes a lease for years of part of the possession of the Hospital afterwards the lessee for years is made Master the term is drowned for a man cannot have a term for years in his own right and a Freehold en auter droit to consist together as if a man lessee for years take a feme lessor to wife But a man may have a Freehold in his own right and a term in auter droit and therefore if a man lessor take the feme lessee to wife the term is not drawned but he is possessed of the term in her right during the Coverture 6 H. 4. 7. Pl. Com. 419. So if the lessee make the lessor his executor the term is not drowned 32 H. 8. Br. Surr. 5. 2. But if it had been a Corporation aggregate of many the making of the lessee Master had not extinguished the term no more then if the lessee had been made one of the Brethren of the Hospital Sect. 637. Fo. 339. a. Nota que un estate tail ne poit este discont mes la ou cestuy que fait discont fuit un foitâ— seisee quia omnis privatio praesuppoâ—it habitum perforce de la tail sinon que foit per reason de garrantie c. for in many cases a Warranty added to a Conveyance is said to make a Discontinuance ab effectu because it taketh away the entry of him that right hath as a Discontinuance doth As if Tenant in Tail be disseised and dyeth the issue in Tail releaseth to the disseisor with Warranty c. 9 E. 4. 19. 12 E. 4. 11. 21 E. 4. 97. Vide Sect. 592 596 597 601 640 658. Sect. 642. Fo. 340. b. Albeit the reversion in this case be executed in the Lord by the Escheat in the life of Tenant in Tail yet because he is not in by the Tenant in Tail but by Escheat it worketh no discontinuance But if it had been executed in the life of Tenant in Tail in the grantee which was in by Tenant in Tail then the Lord by Escheat should have taken advantage by it Vide Sect. 620. lib. 1. fo 136. lib. 2. fo 62 63. Sect. 643 644 645. In whom the fee simple of the Gleab c. is is a question in our Books Some hold that it is in the Patron 8 H. 6. 24 12 H. 8. 8. But that cannot bt for two Reasons 1. For that in the beginning the Land was given ro the Parson and his successors and the Patron is no successor 2. The words of the Writ of Juris utrum be Si sit libera Eleemosyna ecclesiae de D. and not of the Patron Reg. 307. a. 45 E. 3. Eschang 12 H. 8 9. Some others do hold That the fee simple is in the Parson and Ordinary F N B 19. I. But this cannot be for the causes abovesaid and therefore of necessity the fee simple is in abeiance as Littleton saith Upon consideration of all our Books I observe this diversity That a Parson or Vicar for the benefit of the Church and of his successor if in some cases esteemed in Law to have a fee simple qualified but to do any thing to the prejudice ofs successors in many cases the Law adjudgeth him to have in effect but an estate for life Causae Ecclesiae publicis causis aequiparantur summa ratio est quae pro religione facit Bract. lib. 3 f. 226. Et Ecclesia fungisur vice minoris meliorem facere potest
which inheritances put in Abeyance are by some called Haereditates jacentes Bract. l. 1. c. 2. and some say Que le fee est en baiaunce Brit. fo 249. Sect. 641. Fol 343. b. Principium est quasi primum caput from which many cases have their original or beginning which is so strong as it suffereth no contradiction Contra negantem principia non est disputandum 11 H. 4. 9. Note a diversity when the right of fee simple is perpetually by Judgement of Law in Abeyance without any expectation to come in esse there he hath the qualified fee Concurrent ' his quae in jure requiruntur may charge or alien it as in the case of Parson Vicar Prebend c. But where the fee simple is in Abeyance and by possibility may every hour come in esse As if a lease for life be made the remainder to the right heirs of I.S. the fee simple cannot be charged till I.S. be dead Lands intailed may be charged in fee for the estate Tail may be cut off by Fine or Recovery Also the estate Tail may continue and yet Tenant in tail may lawfully charge the Land and binde the issue in Tail 44 E. 3. 21 22. As if a disseisor make a gift in Tail and the Donee in consideration of a Release by the disseisee of all his right to the Donee grant a rent charge to the disseisee and his heirs proportionable to the value of his right this shall binde the issue in Tail Vide Sect. 1. Bridgewaters Case 59. fol. 48. b. Which Lands by the Rule of Littleton may be charged and therefore if the owner of those 13 acres grant a rent charge out of those 13 acres generally lying in the Meadow of eighty without mentioning where they lie particularly there as the state in the land removes the charge removes also If the Parson dye and in time of Vacation the Patron of the assent of the Ordinary and the Patron and Ordinary grant an Annuity or rent charge out of the Gleab this shall binde the succeeding Parsons for ever A Church Parochial may be Donative and exempt from all Ordinary Jurisdicton and the Incumbent may resign to the Patron and not to the Ordinary neither can the Ordinary visit but the Patron by Commissioners to be appointed by him And by Littletons Rule The Patron and Incumbent may charge the Gleab and albeit it be Donative by a Lay-man yet merè Laicus is not capable of it but an able Clerk infra sacros ordines is for albeit he come in by Lay Donation and not by admission or institution yet his function is spiritual Vide 133 530. 11 E. 3. Jur. utr 3. 8. Ass 29. 31. 13 Ass 2. As the King may create Donatives exempt from the visitation of the Ordinary so he may by his Charter license any subject to found such a Church or Chappel and to ordain that it shall be Donative and not Presentable and to be visited by the Founder and not by the Ordinary And thus began Donatives in England whereof common persons were Patrons F.N.B. 35 E. 4. 2. A.B. Dyer 10. El. f. 273. 14 El. cap. 5. 2 H. 5. cap. 1. Ordinarius is he that hath ordinary Jurisdiction in causes Ecclesiastical immediate to the King and his Courts of Common Law for the better execution of Justice as the Bishop c. Regularly according to the Ecclesiastical Laws allowed by the Laws of this Realm viz. which are not against the Common Law whereof the Kings Prerogative is a principal part nor against the Statute and Customs of the Realm The Ordinary and other Ecclesiastical Judges do proceed in Causes within their Conusance and this Jurisdiction was so bounded by the ancient Common Laws of the Realm and so declared by Act of Parliament 25 H. 8. c. 19. 33 H. 6. 34. 32 H. 6. 28. Note that institution is a good plenarty against a Common person but not against the King unless he be inducted and that is the cause that Regularly plenarty shall be tryed by the Bishop because the Church is full by institution which is a spiritual act but void or not void shall be tryed by the Common Law 22 H. 6. 27. 38 E. 3. 4. At the Common Law if an usurpation had been had upon an Infant or feme Covert having an Advowson by discent or upon Tenant for life c. the Infant feme Covert and he in the reversion were driven to their Writ of Right of Advowson for at the Common Law if the Church were once full the Incumbent could not be removed and plenarty was a good plea in a Qu. imp or Assize of dar Presentment and the reason of this was to the intent that the Incumbent might quickly intend and apply himself to his spiritual charge And secondly the Law intended That the Bishop that had Cure of Soules within his Diocesse would admit and institute an able man c. 6 E. 3. 28. 39. 52. If the King do present to a Church and his Clerk is admitted and instituted yet before induction the King may repeal and revoke his Presentation But Regularly no man can be put out of possession of his Advowson but by admission and institution upon an usurpation by a Presentation to the Church Cum aliquis jus praesentandi non habens praesentaverit c. and not by collation of the Bishop 45 E. 3. 35. 38 E. 3 4. 13 El. Dyer 292. 18 El. Dyer 348. 14. E. 4. 2. 7 H. 4. 32. fol. 344. b. Nota that an usurpation upon a presentation shall not only put out of possession him that hath right of presentation but right of Collation also Therefore at this day the Incumbent shall be removed by a Qu. imp or Assize of dar ' presentment if there be not a plenarry by six moneths before the Teste of the Writ but then the Incumbent must be named in the Writ or else he shall never be removed 9 H. 6. 32. 56. 19 H. 6. 68. At the Common Law if hanging the Qu. imp against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Qu. imp against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another in this if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop and remove the Incumbent that came in pendente lite by usurpation for pendentelite nihil innovetur and therefore at the common Law it was good policy to bring the Qu. imp against the Bishop as speedily as might be So it is good policy at this day to name the Bishop in the Qu. imp for then he shall not present by lapse 30 E. 3. Qu. imp Statham 5 E. 4. 115. 9 E. 4. 30. Sect. 649 650. fol. 345. a. If Tenant in Tail of lands holden of the King be attainted of Felony and the King after Office seiseth the same the estate Tail is
non-tenure or disclaime there the demandant may averre him to be Tenant of the Land as his Writ supposes for the benefit of his damage which otherwise he should lose or pray judgement and entry 13 H. 7. 28. 22 H 6. 44. But where no damages are recoverd as in a Formedon in discent c. there he cannot aver him Tenant but pray his judgement and enter for thereby he hath the effect of his suit frustra fit per plura quod c. 8 E. 3. 434. 24 E 3. 9. 11 H. 4. 16. and 7 H. 6. 17. A general averment is the conclusion of every plea to the Writ or in barre of replication and other pleadings for Counts or Avowries in nature of Counts need not be averred containing matter affirmed ought to be averred hoc paratus est verificare c. Particular averments are as when the life of Tenant for life or Tenant in Tail are averred and there though this word verificare be not vsed but the matter avouched and affirmed it is upon the matter an averment and an averment containeth as well the matter as the forme thereof Sect. 692 Fol. 363. a. Albeit in this case and in the case before the entry of the demandant is his own act and the demandant hath no expresse judgement to recover yet he shall be remitted causa â—â—a supra 36 H. 6 Fo. 29. Sect. 693. Fo. 363. b. Here note a diversity If a man of full age having but a right of action taketh an estate to him he is not remitted But where he hath a right of entry and taketh an estate he by his entry is remitted because his entry is lawful and if the disseisor infeoffe the disseisee and others the disseisee is remitted to the whole for his entry is lawful otherwise it is if his entry were taken away 29. Ass p. 26. 43. Ass 3. 11 H. 7. â—0 3 H. 6. 19. 40 E. 3. 43. If Tenant in Tail be of a manor where unto an advowson is appendant the Tenant in Tail discontinue in Fee discontinuee grant away the Advowson in Fee and dyeth the â—â—e in tail recontinueth the Manor by Recovery he is thereby remitted to the Advowson and he that right hath shall present when the Church becometh void 8 R. 2. Qu. imp 199. 26. H. 8. 4. F.N.B. 36. 35. b. The Patron of a benefice is outlawed and the Church become void an estranger usurpeth and six moneths passe the King doth recover in a qu. imp and remove the incumbent c. Advowson is recontinued to the rightful patron 22. Ass p. 33. Theobald Grinvile and so note a diversity a remitter cannot be properly unlesse there be two Titles but a recontinuance may be where there is but one If the disseisor by Deed Indented make a Lease forlife or a gift in Taile c. yet the Deed Indented shall not suffer the livery made according to the form and effect of the Indenture to work any Remitter to the disseisee but shall estop the disseisee to claim his former estate and if the disseisor upon the feoffment doth reserve any Rent or condition c. the rent or condition is good 13 H. 4. 5. 3 H. 4. 17. 8 H. 4. 8. 12 H. 4. 19. 35. Ass 8. 17. Ass 3. 43. E. 3. 17. Parkers Case 21 H. 6. 2. per Paston Sect. 695. Fol. 364. a. Note a diversity A claime in paiis shall not hinder Remitter otherwise it is a claime of Record because that doth work a conclusion Sect. 696. Fol. 344. b. Here note a notable diversity If two joyntenants or coparceners joyn in a reall action where their entry is not lawful and the one is summoned and severed and the other pursueth and recovereth the moity the other Joyntenant or Coparceners shall enter and take the profits with her because their remedie was one and the same But where two Coparceners and they are disseised and a discent is cast and they have issue and dye if the issue of the one recover her moity the other shall not enter with her because their remedies were severall and yet when both have recovered they are coparceners again 10. H. 6. 10. 19 H. 6. 45. 31 H. 6. Ent. Cong 54. So here in this case that Littleton putteth then two joyntenants have not equall remedy for the Infant hath a right of Entry and the other a right of action and therefore the Infant being remitted to moity the other shall not enter and take the profits with her If A and B. joyntenants in fee be disseised by the Father of A. who dyeth seised his Sonne and heir enter he is remitted to the whole and his companion shall take Advantage thereof Otherwise here in the case of Littleton for that the Adventure is given to the Infant more in in respect of his person than of his right whereof his companion shall take no advantage But if the Grandfather had disseised the Joyntenants and the land had discended to the Father and from him to A. and then A. had dyed the entry of the other should be taken away by the first descent and therefore he should not enter with the heire of A. But here in the case of Littleton if after the discent the other Joyntenant had dyed and the infant survived some say that he should have entred into the whole because he is now in Judgement of of Law solely in by first feoffment and he claimeth not under the discent Vide 35 Ass p. ultimo ** CHAP. XIII Of Warranty Sect. 697. A Communi observantia non est recedendum minime mutanda sunt quae certam habuerunt interpretationem A warranty is a convenant reall annexed to Lands or Tenements whereby a man and his heires are bound to warrant the same and either upon voucher or by judgement in a writ of Warrant Cartae to yeeld other Lands and Tenements to the value of those that shall be evicted by a former title or else may be used by way of Rebutter i.e. to repel or barre Bract. l. 2. fo 37. and l. 5. fo 380. c. Glan l. 3. ca. 1. 2. 3. 38. E. 321. 45 E 3. 18. Fol. 365. a. Garronter en un sense signifie a defender son tenant en sa seisin en auter sence signifie que si il ne defendant que le garrant luy soit tenue a eschanges de faire son gree a la vaillaunce Brit. Fo. 197. b. By the Statute of Glocestor foure things are enacted 1. That if a Tenant by the Curtesie alien with warranty and dyeth that this should be no barre to the heir in a Writ of Mordanc without Assets in fee simple and if Lands or Tenements descend to the heir from the Father he shall be barred having regard to the value thereof 2 That if the heir for want of Assets c. doth recover the Lands of his mother by force of this Act and afterwards Assets discend c. 3. That the issue of the Sonne
reversion or remainder it sufficeth though he never took profit But the matter observable upon this proviso is that if a desseisor make a Lease for lives or yeers the remainder for life in taile or in fee he in remainder cannot take a promise or Covenant that when the disseisee hath entered upon the Land or recovered the same that then he should convey the Land to any of them in remainder thereby to avoid the particular estate or the interest or estate of any other for the words of the proviso be buy obtain get or have by any reasonable way or mean and that is not by promise or Covenant to convey the Land after entry or recovery for that is neither lawfull being against the expresse purview of the body of the act and not reasonable because it is to the prejudice of a third person But the reasonable way or meane intended by the statute is by release or confirmation or such conveyances as amount to as much Sect. 703. Fo. 370. a. A Warranty lineall is a Covenant reall annexed to the Land by him which either was owner or might have inherited the Land and from whom his heire lineall or collaterall might by possibility have claimed the Land as heire from him that made the warranty In a Jur. utr brought by a Parson of a Church the Collaterall Warranty of his Ancestor is no barre for that he demands the Land in the right of his Church in his politick capacity and the Warranty descendeth on him in his naturall capacity 27 H. 6. garr 48. But some have holden that if a Parson bring an Ass that a Collaterall warranty of his Ancestor shall bind him for that the Ass is brought of his possession and seisin and he shall recover the meane profits to his own use 34 E. 3. garr 71. But seeing he is seised of the freehold whereof the Ass is brought in jure Ecclesiae which is in another right then the warranty it seemeth that it should not be any barre in the Ass The like Law is of a Bishop Archdeacon Dean Master of an Hospital and the like of their sole possessions and of the Prebend Vicar c. King H. 3. gave a Manor to Edmond Earl of Cornwall and to the heires of his body saving the possibility of Reverter and dyed The Earl before the Statute of W. 2. c. 1. de donis Cond by Deed gave the said Manor to another in fee with Warranty in exchange for another Manor and after the said Statute Anno 28 E. 1. dyeth without issue leaving Assets in fee simple which is Warranty and Assets descended upon King E. 1. as Cousin German c. And it was adjudged that the King as heire to the said Earl Edmond was by the said Warranty and Assets barred of the possibility of Reverter which he had expectant upon the said gift albeit the Warranty and Assets descended upon the natural body of King E. 1. as heir to a Subject and E. 1. claimed the said Manor as in his Reverter in jure Coronae in the capacity of his Body Politick in which right he was seised before the gift 45 Ass 6. 6 E. 3. 56. Pl. Com. 234. 553 554. Vide 27 H. 6. garr 40. 34 E. 3. garr 71. In this case how by the death of the said Earl Edmond without issue the Kings Title by Reverter and the Warranty and Assets came together and that the Warranty was collateral yet the King shall not be barred without Assets as a Subject shall be and many other things are to be observed in this case which the learned Reader will observe Vide Sect. 711. 712. Sect. 704 705. Fo. 371. a. Littleton doth agree with the Authority of our Books 46 E. 3. 6. 5 E. 3. 14. 19 H. 8. 12. so as the diversities do stand thus 1. Where the disseisin and feoffment are uno tempore and where at several times 2. Where the disseisin is with intent to alien with Warranty and where the disseisin is made without such intent and the alienation with Warranty afterwards made Sect. 706. ibid. Upon every Conveyance of lands c. as upon Fines Feoffments Gifts c. Releases and Confirmations made to the Tenant of the land a Warranty may be made albeit he that makes the Release or Confirmation hath no right to the land c. But some do hold that by Releases or Confirmations where there is no estate created or transmutation of possession a Warranty cannot be made to the Assignee 14 E. 3. Voucher 108. 16 E. 3. ibid. 87. 18 E. 3. 6. 12 H. 7. 1. Vide S. 733 738 745. Sect. 707. Fol. 371. b. The opinion of Littleton in this case is holden for Law against the opinions in 35 E. 3. garr 73. 11 H. 4. 33. Sect. 708. Fol. 372. a. Hereby it appeareth that a Warranty that is collateral in respect of some persons may afterwards become lineal in respect of others 8 R. 2. garr 101. Whereupon it followeth That a collateral Warranty doth not give a right but bindeth onely a right so long as the same continueth but if the collateral Warranty be determined removed or defeated the right is revived 43 Ass 44. 24 H. 8. tit Tail Br. 7. H. 5. 6. tit Ass 350. 34 E. 3. Droit 29. 19. H. 6. 59. 21. H. 7. 40. 5 H. 7. 29. 3 H. 7. 9. b. And yet in an Assize the Plaintiff hath made his Title by a collateral warranty 16 Ass p. 16. 27 Ass 74. 29 Ass 50. 43 Ass 8. 14 H. 4. 13. 19 H. 6. 66. Barre signifieth legally a destruction for ever or taking away for a time of the action of him that right hath Nota That in some cases an estate Tail may be barred by some Acts of Parliament made since Littleton wrote and in some cases an estate Tail cannot be barred which might when Littleton wrote have been barred For Example if Tenant in Tail levy a Fine with Proclamation according to the Statute this is a barre to the estate Tail but not to him in reversion or remainder if he maketh his claim or pursue his action within five yeers after the estate Tail spent 4 H. 7. c. 24. ct 32 H. 8. c. 36. If a gift be made to the eldest Son and to the heirs of his body the remainder to the Father and to the heires of his body the Father dyeth the eldest Son levieth a Fine with Proclamation and dieth without issue this barreth the second Son for the remainder descended to the eldest Dalisons 2 El. 7 El. lib. 3. f. 84. If Tenant in Tail be disseised or have a right of action and the Tenant of the land levy a Fine with proclamation and five years pass the right of the estate Tail is barred If Tenant in Tail in possession or that hath a right of entry be attainted of High Treason the estate Tail is barred and the land is forfeited to the King and none of these were bars when Littleton
venter and a Son by another the eldest Son enters and dieth the land descends to the sister in this case the warranty descendeth on the Son and he may be vouched as heir and the sister as heir of the land In which case and in the other case of Borough English the Son and heir by the Common Law having nothing by discent the whole loss of the recovery in value lieth upon the heires of the land albeit they be no heires to the warranty 32 E. 3. vouch 94. 35 H. 6. 3. Then put the case that there is a warranty paramount who shall deraign that warranty and to whom shall the recompence in value go some have said that as they are vouched together so shall they avouch over and that the recompence in value shall enure according to the losse and that the effect must pursue the cause as a recovery in value by a warranty of the part of the Mother shall go to the heire of the part of the Mother c. Pl. Come 515. Some others hold that it is against the maxime of the Law that they that are not heirs to the warranty should joyn in a voucher or to take benefit of the waranty which descends not to them but that the heir at the common Law to whom the warranty descended shall deraign the warranty and recove in value and that this doth stand with the rule of the common Law Others hold the contrary and that this should be both against the rule of Law and against reason also for by the rule of Law the vouchee shall never sue to have execution in value untill execution be sued against him But in this case excution can never be sued against the heir at the common Law therefore he cannot sue to have execution over in value Secondly it should be against reason that the heire at the common law should have totum lucrum and the especial heirs totum damnum 17 E. 2. Recover in value 33. 18 E. 3. 51. l. 1. 96. Shelleyes case I find in our Books this reason is yielded that the special heires should not be vouched only for say they then could not they deraigne the warranty which should be mischievous that they should lose the benefit of the warranty if they should be vouched onely 32 E. 3. vouch 94. per Greene. But if the heire at the Common Law were vouched with them as by the Law he ought all might be saved and therefore study well this point how it may be done If Tenant in general Tail be and a common recovery is had against him and his wife where his wife hath nothing and they vouch and have judgement to recover in value Tenant in Tail dyeth and the wife surviveth for that the issue in Tail had the whole losse the recompence shall enure wholly to him and the wife albeit she was party to the judgment shall have nothing in the recompence for that she loseth nothing Pl. Com. Fo. 514. If the Bastard eigne enter and take the profits he shall be vouched onely and not the Bastard and the Mulier because the Bastard is in apparance heire and shall not disable himself 17 E. 3. 59. 20 E. 3. vouch 129. 5 H. 7. 2. If a man be seised of Lands in Gavelkind and hath issue three Sonnes and by Obligation bind himself and his heires and dieth an action of debt shall be maintenable against all the three Sonnes for the heire is not chargeable unlesse he hath lands by discent 11 H. 7. 12. 11 E 3. Det. 7. Dy. 5. El. 238. So if a man be seised of Land on the part of his Mother and bind himself and his heirs by Obligation and dyeth an action of debt shall lye against the heire on the part of the Mother without naming the heire at the Common Law and so note a diversity between a personal lyen of a bond and a reall lyen of a warranty Sect. 719. Fol. 377. a. Here it appeareth that whensoever the Ancestor taketh any estate of freehold a limitation after in the same conveyance to any of his heires are words of limitation and not of purchase albeit in words it be limitted by way of remainder and therefore here the remainder to the heires females vesteth in the Tenant in tail himself 24 E. 3. 36 27 E. 3. Age 108. 38 E 3. 26. 40. E. 3. 5. 37 H. 8 Br. nosme 1. 40. tit done Rem 61. The issues inheritable must make their claim either only by Males or only by Females so as the Females of the Males or Males of the Females are wholly excluded c. 1 H. 6. 4. Pl. Com. 414. Vide Sect. 24. But where the first limitation is to the heires males let the limitation be for default of such issue to the heires of the body of the donee and then all the issues be they Females of Males or Males of Females are inheritable If a man give Lands to a man to have and to hold to him and the heires Males of his body and to him and to the Heires Females of his body the estate to the heires Females is in remainder and the daughter shall not inherit any part so long as there is issue Male. Sect. 720. Nihil simul inventum esi perfectum saepe viatorem nova non vetus orhita fallit and therefore new inventions in assurances are dangerous 22 H. 6. 33. l. 6. f. 42. b. Sir Anthony Mildmayes case Non prosunt dominis quae prosunt omnibus artes quoniam In suo quisque negotio hebetior est quam in alieno 2 H. 4. fo 11. Action sur le case Sect. 721. Fol. 378. a. Every remainder which commeth by deed ought to vest in him to whom it is limited when livery of seisin is made to him that hath the particular estate 1. Littleton saith by Deed because if Lands be granted and rendred by Fine for life the remainder in Taile the remainder in Fee none of these remainders are in them in the remainder until the particular estate be executed 7 R. 2. scire facias 2. That the remainder be in him c. at the time of the livery This is regularly true but yet it hath divers exceptions As where the remainder is to commence upon limitation of time viz. upon the possibility of the death of one man before another which is a common possibility Pl. Com. Colthirsts case fo 65. 29. 32 H. 6. tit feoffments c. 99. 27. E. 3. 87. 12 E. 4. 2. 21 H. 7. 11. 7 H. 4. 23. 11 H. 4. 74. 18 H. 8. 3. 27. H. 8. 42. 38 E. 3. 26. 30. Ass 47. 6 R. 2 qu Iur. Dam. 20. A man letteth lands for life upon condition to have Fee and warranted the land in forma predicta afterward the lessee performeth the conditions whereby the lessee hath fee the warranty shall extend and increase according to the State And so it is in that case if the lessor had dyed before the
performing of the condition c. and yet the lessor himself was never bound to the warranty but it hath relation from the first livery and by this it appeareth that a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may work in the beginning But otherwise it is if a man grant a Seigniory for yeares upon condition to have fee with warranty in forma praedicta c. And so it is if a man make a Lease for yeares the remainder in fee and warrant the Land in forma predicta he in the remainder cannot take benefit of the Warranty because he is not party to the Deed and immediately he cannot take she were party to the Deed because he is named after the â—abendum and the estate for yeares is not capable of a warranty And so it is if Land be given to A. and B. so long as they â—oyntly together live the remainder to the right heires of â—â—m that dieth first and warrant the land in forma predicta A. dyeth his heir shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heir of A. have the Land by discent Sest 722. Fol. 378. b. Si le 1. fits alienast c. By the Alienation of the Donee two things are wrought 1. The Franktenement and Fee is in the Alienee 2. The reversion is devested out of the donor and therefore by the alienation that transferreth the freehold and fee simple to the Alienee there can no remainder be raised and vested in the second sonne 27 H. 8. 24. 6. R. 2. quod jur clam 23. Also an estate of an inheritance in Lands and Tenements cannot cease or be void before the state be defeated by entry then if this remainder should be good then must it give an entry upon the Alienee to him that had no right before which should be against the expresse rule of Law viz. That an estate cannot be given to a stranger to avoid a voidable Act. One Alienation cannot vest an estate of one and the same Land to two severall persons at one time If a man seised of an Advowson in fee by his deed grant the next presentation to A. and before the Church become void by another Deed grant the next presentation of the same Church to B. the second grant is void for A. had the same granted to him before and the grantee shall not have the second avoidance by construction to have the next avoidance which the grantor might lawfully grant for the grant of the next avoidance doth not import the second presentation But if a man seised of an Advowson in fee take wife now by Act in Law is the wife intitled to the third presentation if the husband dye before The husband grants the third presentation to another the husband dye the heire shall present twice the wife shall have the third presentation and the grantee the fourth for in this case it shall be taken the third Presentation which he might lawfully grant and so note a diversity between a Title by act in Law and by act of the party for the act in Law shall work no prejudice to the grantee Periculosum est res novas inusit at as inducere Eventus varios res nova semper habet vide §. 87 c. Sect. 723. fol. 379. a. Here by the Opinion of Littleton the Donor may re-enter for the condition broken for Vtile per inutile non vitiatur which being in case of a condition for the defeating of an estate is worthy of Observation And it is to be noted That after the death of the Donor the condition descendeth to the eldest Sonne and consequently his alienation doth extinguish the same for ever wherein the weaknesse of this invention appeareth and therefore Littleton here saith That it seemeth that the Donor may re-enter and speaketh nothing of his heirs A man hath issue two Sons and maketh a gift in Tail to the eldest the remainder in fee to the puisne upon condition that the eldest shall not make any discontinuance with warranty to barre him in the remainder and if he doth that then the puisne Son and his heirs shall re-enter the eldest maketh a feoffment in fee with warranty the Father dyeth the eldest Son dyeth without issue the puisne may enter But if the discontinuance had been after the death of the Father the puisne could not have entred In this case four points are to be observed 1. As Littleton here saith the entry for the breach of the Condition is given to the Father and not to the puisne Sonne 2. That by the death of the Father the condition descends to the elder Sonne and is but suspended and is revived by the death of the eldest Son without issue and descendeth to the yongest Son 41 E. 3. vide Sect. 446. 3. That the feoffment made in the life of the Father cannot give away a condition that is collaterall as it may doe a right 4. That a Warranty cannot binde a Title of entry for a condition broken but if the discontinuance had been made after the death of the Father it had extinguisht the condition which case is put to open the reason of our Authors opinion The ancient Judges and Sages of the Law have ever as it appeareth in our Books suppressed innovations and novelties in the beginning as soon as they have offered to creep up lest the quiet of the Common-wealth might be disturbed 31 Ed. 3. Gager delivery 5. 22 Ass 12. 38 Ed. 3. 1. 2 H. 4. 18 c. And so have Acts of Parliament done the like 1 Ed. 3. cap. 15. Stat. 3. 18 Ed. 3. cap. 1. 6. 4 Hen 4. cap. 2. 11 Hen. 6. cap. 23. 12 Ed. 4. cap. 8 c. Sect. 726. fol. 380. a. Here note this diversity If the heir be within age at the time of the discent of the Warranty he may enter and avoid the estate either within age or at any time after his full age 18 Ed. 4. 13. 35 Hen. 6. 63. 28 Ass 28. 32 Ed. 3. garr 30. and Littleton saith well That the Infant in this case may enter upon the Alienee for if he bring his action against him he shall be barred by this Warranty so long as the state whereunto the Warranty is annexed continues and be not defeated by entry of the heir but if he be within age at the time of the alienation with Warranty and become of full age before the discent of the Warranty the Warranty shall barre him for ever Our Author putteth his cases where the entry of the Infant is lawfull for where it is not lawfull when the Warranty descendeth the Warranty doth binde the Infant as well as a man of full age and the reason is because the state whereunto the Warranty was annexed continueth and cannot be avoided but by action in which action
years c. in this case if he be ousted by a stranger without being impleaded the Obligation is forfeit But if he be bound to warrant the land c. the bond is not forfeit unlesse the Obligee is impleaded and then the Obligor must be ready to warrant c. 2 E. 4. 15. tit Det. 71. Qui benè distinguit benè docet fol 384. a. A Warranty in Deed is created onely by this word Warrantizo but Warranties in Law are created by many other words they are therefore called Warranties in Law because in Judgement of Law they amount to a Warranty without this Verb Warrantizo As Dedi is a Warranty in Law to the feoffee and his heirs during the life of the feoffor but Concessi in a Feoffment or Fine implieth no Warranty But before the Statute of Quia Emp. ter if a man had given lands by this word Dedi to have and to hold to him and his heires of the Donor and his heirs by certain Services then not onely the Donor but his heirs also had been bound to warrant But if before the Statute a man had given lands by this word Dedi to a man and his heirs for ever to hold of the chief Lord there the feoffor had not been bound to Warranty but during his life as at this day he is Lestat de Bigamis c. 6. 2 H. 7. 7. 6 H. 7. 2. 48 E. 3. 2. 31 E. 1. vouch 290. F. N.B 134. b. 6 E. 2. vouch 258. Dedi doth import a warranty in Law albeit there be an expresse warranty in the Deed. For if a man make a feoffment by Dedi and in the Deed doth warrant the land against I. S. and his heirs yet Dedi is a generall warranty during the life of the feoffor and so was the Statute expounded in both points H. 14. El. in Com. Banc. And if a man make a lease for life reserving a rent and adde an expresse warranty here the expresse warranty doth not take away the warranty in Law for he hath election to vouch by force of either of them and in Nokes Case note a diversity between a warranty that is a Covenant and a warranty concerning a Chattell l. 4. fo 80. 8 E. 3. 69. 3 E. 3. Formedon 44. Also this word axcambium doth imply a warranty Also a Petition implyeth a warranty in Law and homage Aunc ' doth draw to it selfe warranty 4 E. 2. vouch 245. 22 E. 3. 3. 14 H. 6 2. 20 H. 6. 14. l. 4. 122. l. 1. 96. l. 5. fo 17. l. 8. 75. Seignior Staf. case And note that the warranty wrought by this word dedi is a speciall warranty and extends to the heirs of the Feoffee during the life of the donor only But upon the exchange Homage Aunc ' the warrant extending reciprocally to the heires and against the heires of both parties and in none of these cases the Assignee shall vouch by force of any of these warranties but in the case of the exchange and dedi the Assignee shall rebutt but not in the case of Homage Auncestrel And so no man shall have a writ of contra formam collationis but onely of the feoffee and his heirs which be privy to the Deed but an Assignee may rebutt by force of the Deed. 28 Ass 33. 14 H. 4. 5. 11 E. 3. Avowr 100. 30 H. 6. 7. 33 H. 8. Dy. 51. 10 H. 7. 11 b. F. N. B. 163. a. If a man make a gift in Taile or a Lease for life of land by deed or without deed reserving a rent or of a rent service by deed this is a warranty in Law and the donee or lessee being impleaded shall vouch and recover in value and this warranty extendeth not onely against the donor or lessor and his heires but also against his Assignees of the reversion and so likewise the Assignee of lessee for life shall take benefit of this warranty in Law 6 E. 2. vouch 105. 5 E. 3. 67. 3 H. 7. 13. 6 H. 7. 2. 7 E. 3. 6. F.N.B. 134. g. When dower is assigned there is a warranty in Law included that the Tenant in Dower being impleaded shall vouch and recover in value a third part of two parts whereof she is Dowable 4 E. 3. 36. 43. Ass 32. 50 E. 3. 7. F.N.B. 149. m. A warranty in Law and Assets is in some cases a good barre In a Formedon in the discender the Tenant may plead that the Ancestor of the demandant exchanged the Land with the Tenant for other Lands taken in exchange which descended to the demandant whereunto he hath entred and agreed or if he hath not entered and agreed unto the Lands taken in exchange then the Tenant may plead the warranty in Law and other Assets descended 14 H. 6. 2. 15 E. 3. Bar. 255. If Tenant in Taile of Lands make a gift in Taile or a Lease for life render a rent and dyeth and the issue bring a Formedon in the discending the Reversion and rent shall not barre the demandant because by his Formedon he is to defeat the reversion and rent Et non potest adduci exceptio ejusdem rei cujus petitur dissolutio 38 E. 3. 22. 23. 24. 13 E. 3. gar 35. But if other Assets in fee simple doe discend then this waâ—ranty in Law and Assets is a good barre in the Formedon 16 E. 3. Age 45. 31 E. 3. gar 29. Here four things are to be observed 1. That no warranty in Law doth barre any collaterall title but is in nature of a lineall warranty wherein note the equity of the Law Fo. 384. b. 2. That an expresse warranty shall never binde the heirs of him that made the warranty unlesse they be named but in case of warranty in Law in many cases the heires shall be bound to warranty albeit they be not named 3. That in some cases warranties in Law do extend to execution in value of speciall Lands and not generally of Lands descended in fee simple lib. 4. fol. 121. Bustards Case 4. That warranty in Law may be in some cases created without Deed as upon gifts in Taile Leases for life eschanges and the life 45 E. 3. 20. b. Also it is necessary to shew who shall take advantage of a warranty as Assignee by way of voucher to have recompence in value If a man infeoffee A. and B. to have and to hold to them and their heires and Assignes with a clause of warranty praedictis A. and B. eorum haered Assignatis in this case if A. dyeth and B. surviveth and dyeth and the heire of B. infeoffeth C. he shall vouch as Assignee and yet he is but the Assignee of the heir of one of them for in judgment of Law the Assignee of the heire is the Assignee of the Ancestor and so the Assigne of the Assignee shall vouch in infinitum within these words his Assignes 14 E. 3. gar 33. 13 E. 1. gar 83. lib. 5. fol. 17. b. Spencers case 38 E. 3. 21.
If a man infeoff A. to have and to hold to him his Heires and Assignes A. infeoffeth B. and his heirs B. dyeth the heire of B. shall vouch as Assignee to A. so as heires of Assignees and Assignees of Assignes and Assignes of Heirs are within this word Assignes which seemed to be a Qu. in Bractons time and the Assignee shall not onely vouch but have a Warrantia Cartae 12. E. 2. vouch 263. 19 E. 2. gar 85. 13 E. 1. ib. 93. 36 E. 3. gar 1. 4 H. 8. Dyer 1. F. N. B. 135. If a man doth warrant Land to another without this word Heires his heirs shall not vouch and regularly if he warrant land to a man and his heirs without naming Assignes his Assignee shall not vouch But if the Father be infeoffed with Warranty to him and his heires the Father infeoffeth his eldest Son with Warranty and dyeth the Law giveth to the Son advantage of the Warranty made to his Father because by act in Law the Warranty between the Father and the Son is extinct 43 E. 3. 23. 24 E. 3. 3. 11 H. 4. 94. 5 E. 3. Age 19. Pl. Com. 418. But note a diversity between a Warranty that is a Covenant real which bindeth the party to yield Lands or Tenements in recompence and a Covenant annexed to the Land which is to yield but damage for that a Covenant in many cases extendeth further then the Warranty As for Example It hath been adjudged that where two Coparceners made partition of Land and the one made a Covenant with the other to acquit her and her heirs of a Suit that issued out of the Land the Covenantee aliened in that case the Assignee shall have an action of Covenant and yet he was a stranger to the Covenant because the acquitall did run with the land 42 E. 3. b. per Finchden fol. 385. a. A. seised of the Manor of D. whereof a Chappel was parcel a Prior with the assent of his Covent Covenants by Deed indented with A. and his heirs to celebrate divine Service in his Chappel weekly for the Lord of the Manor and his Servants c. In this case the assignees shall have an action of Covenant albeit they were not named for that remedy by covenant doth run with the Land to give damages to the party grieved and was in manner appurtenant to the Manor 42 E. 3. 3. a. Laurence Pakenhams case 6 H. 4. 1. Ralph Brabsons case But if the Covenant had been made with a stranger to celebrate divine Service in the Chappell of A. and his heirs there the Assignee shall not have an action of Covenant for the Covenant cannot be annexed to the Manor because the Covenantee was not seised of the Manor Vide lib. 5. fol. 17 18. Spencers case 2 H. 4. 6. H. Hornes case And note that an Assignee of part of the Land shal vouch as Assignee As if a man make a feoffment in fee of two acres to one with Warranty to him his Heirs Assignes if he make a feoffment of one acre that feoffee shall vouch as Assignee for there is a diversity between the whole estate in part and part of the estate in the whole or of any part As if a man hath a Warranty to him his Heires and Assignes and he make a lease for life or a gift in Tail the lessee or donee shall not vouch as Assignee because the whole estate is out of the lessor or donor and by this means he shall take advantage of the Warranty But if a lease for life or a gift in Tail be made the remainder over in fee such a lessee or donee shall vouch as Assignee because the whole estate is out of the lessor and the particular estate and the remainder do in Judgment of Law to this purpose make but one estate 18 E. 4. 52. 10 E. 3. 58. 5 E. 3. 40. Accord H. 14. 1. in Com. Banc. If a man infeoff three with Warranty to them and their heirs and one of them release to the other two they shall vouch but if he had released to one of the other the warranty had been extinct for that part for he is an Assignee 40 E. 3. 14. 40 Ass 5. 33 H. 6. 4. 37 H. 8. Alienation c. 31. 8 H. 4. 8. If a man doth warrant land to two men and their heirs and the one make a feoffment in fee yet the other shall vouch for his moity 11 R. 2. Detin 46. 7 E. 3. 35. 46 E. 3 4. If a man at this day be infeoffed with warranty to him his heirs and assignes and he make a gift in Tail the remainder in fee the donee make a feoffment in fee that feoffee shall not vouch as Assignee but * he that cometh in in privity of estate If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or Tenant of the Land may rebutte and albeit no man shall vouch or have a Warrantia Cartae either as party heir or Assignee but in privity of estate yet any that is of another estate be it by Disseisin Abatement Intrusion Usurpation or otherwise shall rebut by force of the warranty as a thing annexed to the Land which sometimes was doubted in our Books 38 E. 3. 21. 26 E. 3. 56. l. 10. fo 96. b. Seymors Case 10 Ass 5. 35 Ass 9. 22 Ass 3. 988. 31 Ass 13. But herein note a diversity when he that rebutteth claimeth under the warranty and when he claimeth above the warranty for there he shall not rebut And therefore if Lands be given to two Brethren in fee simple with a warranty to the eldest and his heirs the eldest dyeth without issue the survivor albeit he be heir to him yet shall he neither vouch nor rebut nor have a Warrantia Cartae because his Title to the Land is by relation above the fall of the warranty and he cometh not under the estate of him to whom the warranty is made as the disseisor c. doth If a man make a gift in Tail at this day and warrant the land to him his heirs and assignes and after the donee make a feoffment and dyeth without issue the warranty is expired as to any Voucher or Rebutter for that the estate Taile whereunto it was knit is spent Otherwise it is if the gift and feoffment had been made before the Statute of Donis Cond for then both the donee and feoffee had a fee simple and so are our Books to be intended in this and the like cases Lib. 3. fo 63. Linc. Coll. case If A. be seised of Lands in fee and B. release unto him or confirmeth his estate in fee with warranty to him his heires and assignes All men agree this warranty to be good but some have holden That no warranty can be raised upon a bare Release or Confirmation without passing some estate or transmutation of possession 14 E. 3. garr 108. 12 H. 7. 1. But the Law as it appeareth
not good 735 Auter droit 133 Alien his issue before denization 134 Actio quid quotuplex 313 Alien what actions 134 Annuity where it lyeth and where not 150 151 Ambiguitatis expositio 154 Assise of Rent 164 Arrerages of Rents how recoverable by the Statute 32 H. 8. cap. 37. which could not be obtained by the Common Law 168 169 Aenitia pars quid 173 Account against a Bayliff 177 Against a Receiver ib. Account ratione objecti quotuplex 78 Privity requisite ib. Agreement qualifies c. 112 Annus Dies 272 Authority to be pursued 274 275 It differeth from Right 283 Avowries four kindes 291 Acts concerning possession differ 292 Abatement quid 302 Actions transitory place not traversible sans special matter 310 Assise for damages onely not many tenable 314 Action well begun not abateable per mort c. where 314 Appellum quid quotuplex 317 Annuity not meerly in Action 323 Attaint Judgement in it ib. Assent with interest and without it differ 326 Attornament quid propter quod 339 quotuplex 340 Attornnent not necessary where and why 339 340 345 Attornment countermanded 341 Void for uncertainty 342 Attornament long after c. good ab initio where ib. Attornment presumed ib. Attornment by whom 344 348 349 350 Attornment requisite to what Grants 345 To pass the estate and where requisite to give privity 347 Attornment need not to a Devise 355 Abeyance where 377 Acts of Parliament how to be construed 403 Averment general and special 407 Acts of Parliament for buying of Titles extendeth not to an Ejec Form 419 Assets to barre on Estate Tail how qualified 428 B Bastard who his reputed name its effect p. 3 Belliyuâ— undâ— who 82 Bishop hath a Barony 88 Breve quid quotuplex respectu materiae formae efficientis finis objecti adjuncti c. 90 91 Brevia anticipantia 107 Burgh quid 108 Brief abated 131 Borough English 147 Bayliff who 175 Billa quid 177 Barre to issue in tail what 178 Baron and feme one person 193 Beadle his duty and oath 245 Brief d'entry quotuplex 251 Bastardus quis unde dicitur 258 Its divisions 258 Et under creationem habet Barrettor quis 417 C Conveyances fraudulent avoided by whom p. 4 Challenge of a Juror or Witness do differ 5 Curtesie Angleterre to whom 't is extendible and of what things 21 22 Common sans number 23 Curtesie where no Dower 22 Consent at what age it is binding 26 Capacities for taking estates 55 Contract quid pro quo 59 Copyhold Court who is judge 79 Copyhold who may grant ib. Copyholders Fines 89 Copyhold intailed 80 Cornagium or Castleguard 87 Certificatio quotuplex ratione efficientis subjecti de quo 91 Capitulum quid 104 Cognuzance Spiritual 105 Capite Tenure quid cui 113 Corporal service to the person of the Lord ib. City quid propter quid concilium Regis uotuplex 115 Consuetudo quibus constituitur ib. ubi alleganda ejus Energia ib. 116 Courts Record not Record 122 Church when said full 123 Church void multifariam ib. Claim in law of bill goods 152 Coyn bude 209 Calumniaque 163 quotuplex ib. Propter quid ib. of 164 Counterplea its effect 167 Chattels go not in succession 195 Conditio quid quotuplex ex quibus constat qualis quanta 203 206 Condition broken entry 234 Condition possible becomes impossible of what effect 207 208 Condition unlawful how it enures distinctè 208 Conditions in Obligation Feoffment differ 210 211 Condition considered ratione objecti ratione subjecti 211 Condition in Law who shall take advantage of it 217 Condition and power of revocation different 219 Claim where it must be 224 Conditions of mortgage 225 Condition to be performed according to intent where 226 Condition disabled 227 Condition not to alien where good 221 Condition may prohibit what 's prohibited by Law 230 Condition to defeat a freehold must be shewn by deed 231 Condition in Law 237 238 By Common Law and by Statute Law 243 244 They are as strong as Conditions in Deed ib. and 245 Condition in a will what 246 Continual Claim who may make it ib. Continual Claim by a Recluse 275 Capias where it lyeth and where not 316 318 Confirmatio quid quotuplex 315 Confirmation and Release differ 325 Confirmation what word necessary 328 329 Chattels Reals not given to the husband absolutely c. 330 Confirmation by implication 333 Certitudo legalis quotuplex 334 Cognizee what he may do before Attornment 353 Corentare Capitulum 357 358 Conditions Warranty Estoppels do ever descend to the heir at the Common Law not Spiritual 369 Casu Consilii 374 Common Law bounded 379 Chattels of a Feme how disposed by Marriage 387 388 Covin doth many times choak a right 401. Covina quid est ib. D Deed of Feoffments its parts 4 176 Deed its dâ—â—e 5 Deed when good 7 Deed its incidents 28 29 Denization of what feme 7 Devise of lands effected by other words then feoffee 9 Descent what how 13 Demesne unde 14 Degrees of Kindred 18 Dower at what age it is to be deserved 23 Dower what 24 Dower what necessary causes to effect it ib. Dos non de Castro ib. Divorce à vinculo matrimonii à mensa thoro differenced 25 Dowm by metes bounds 26 Dower per Custom 27 Dower ad ostium Ecclesiae ib. Dower assigned by whom 27 28 of what not 30 Dower ex assensu patris 28 Distress of what of what not 59 Disparagement quotuplex 96 Decanus unde 104 Dispensatio quid 106 Deforciamentum quid 303 Disclaimer quotuplex 110 Devise of Lands where and how by Custom by Statute ib. Disability to bring action 135 how many wayes 132 133 Distress where and to what it is an incident inseparable 160 Disseisina quid 161 185 Denial of rent a disseisin 167 Discensus in Capita in stirpes 171 Disseisor who 184 Disseisin quid 302 Demand of Rent where and when 204 Descent what 248 Descent of Corporal inheritances put him that right hath to an action aliter of incoporal 249 Descent taketh not away Entry unless disseisor hath been in quiet possession five years 250 Descent doth not call Entry where 256 257 Dum fuit infra aetatem here it lyeth 263 Derogation of a mans own act disallowed in Law 264 Discent of Chattels none ib. Disseisor dying seised within five years entry is not call'd by Stat. 32 H. 8. 33. 272 Defalta quid 276 Saved ib. Denization may be on condition 298 Demand two kindes 321 Dedi Concessi their power in Law 333 how pleadable ib. Demise its power ib. Departure in pleading what 335 Distress not for Cognuzee of a Fine without Attornment 353 Disseisin cannot be of Rent c. 356 Discontinuance quid 357 by what ways it was done and whom it prejudiced ib. Discontinuance none of such things as lie in grant 361 unless Warranty c 362 Defortiare