c. And B. by the same Concord doe grant and render the land back again to A. for life without impeachment of wast the remainder to C. the wife of A. for her life the remainder to A. and his heires this is a good Concord and by this devise a Jointure may be and is oftentimes made to a woman And if a â—nture man would have a lease for life or yeers made of land by fine the Lease lessâ—e must by the concord acknowledge the lands to be the right of the lessor who is seised of the land as that c. And then the lessor must grant and render the same land back again to the lessee the conusor in the fine for life life or for a certain number of yeers as the agreement is reserving a rent with clause of distresse and this is a good fine and a common devise for this purpose But if the lessor be tenant in taile it seems this fine will not bind the issue in taile And yet if A. tenant in taile and N. doe by fine acknowledge the land to be the right of a stranger as that c. and then the stranger that is cognisee doth grant and render the land again to N. for life or yeers with clause of distresse c. and then grant and render the reversion to the tenant in taile this is a good fine and will barre the issue in taile also and will likewise passe the rent and the reversion to the tenant in taile So if a Stranger that hath nothing in the land levy a fine Sur cognisance de droit come ceo que il ad c. To him in remainder in taile depending upon an estate for life and the cognisee by the same fine render to the cognisor for tenne yeers to begin at Michaelmas following and dieth and all the proclamations are made after his death and the tenant for life dyeth after the time the lease is to begin this is a good fine and so a good lease to barre the issue in taile If A. B. and C. levy a fine to D. and D. render the land back again West Sym. ubi supra Co. 7. 38. to A. for life the remainder to B. in taile the remainder to C. in taile and the remainder to a stranger in fee this or any such like concord as this is good And if A and B joyne in a fine of a mesuage to C and D and to the heires of C who do grant and render a charg of 30l out of the land to A for his life to begin after the death B to be paid at the feasts of c. Proviso semper quod pred concessio pred annualis reddit ' 30l non aliqualit ' se extendat ad on erand personas dict' C D sed tantummodo ad oner and dict' mesuag ' tota vita ipsius A. and then they grant and render the mesuage to A during the life of H. the remainder to be in taile the remainder to the right heires of B this is a good fine But in such a fine sur grant render these things must be heeded 1. None may take the first estate 1 24. Ed. 3. 27. Bro. Fines 108. by the Concord but the Cognisors or one of them And therefore if A knowledge a fine to B and B render and grant the land to A. Habendum sibi E. uxori ejus and the heires of their bodies So if the husband levie a fine of his wives land and the Cognisee grant and render the land to the husband and wife this is not a good Concord 2. The render of the Rent must be to one of the 2 Co. 2. in the Lord Cromwels case 3 24 Ed. 3. 26. 14 H. 4. 31. Dyer 69. 33 34. parties to the fine and not to astranger 3. A man cannot reserve a lesse estate to himselfe then fee And therefore if A knowledge a fine to B and B render to A in taile the remainder to himself for life this remainder is void So if A by fine knowledge lands to B and B grant and render the land to the Conusor in taile the remainde to B in taile the remainder to B in fee the limitation of this estate in taile to B is void and he can never have execution of it So if A knowledge the lands to B and B doth grant and render to A 4 Co. 6. 33. for life 4. The agreement must bee possible and sensible for if there be three Conusors in a fine and the Conusee render to one of them for life or yeares a rent and grant the reversion to another of them for life or yeares rendring a rent and grant the reversion in fee or in taile to the third this is not a good Concord 5. There 5 44. Ed. 3. 22. 27 H. 8. 24. can be no condition or clause of re-entrie for not payment of rent inserted into the Concord and yet some hold a fine levied to one in taile upon a condition with a remainder over is good * Co. 3. 5. super Lit. 353. 5. 38. And such Concords as these of the last sort before ought not to be received and if they be received the fine in most cases may be avoyded for these â—aults but if a fine bee received with a condition inserted into the Concord this is a good fine and not avoidable by writ of Error or otherwise No single fine can be with a remainder over to any other person contained in it but it must be to the Conusee and his heirs only Plow 248. 2. No rent can bee reserved upon a fine that is Sur Conusance de 2 50. E. 3. 9 3 Co. 5. 38. droit come ceo c. but upon a fine sur grant render or sur concessit only for if one levie a fine sur conusance c. rendring rent this reservation is void 3. No single or double fine shall be received with any covenants or other agreements then are before mentioned but in all these cases also when the fine is received and levied it seemes it is good and unavoidable and that only the remainder in the first case the rent in the second and the Covenants in the last are void and the fine good for the residue A particular tenant as for life c. cannot surrender his terme 44 Ed. 3. 36. to him in reversion or remainder by fine but he may grant and release it to him by fine One may grant his tenements which H doth hold for life and 44 Ed. 3. 45. which after the death of H. ought to remaine to him to H. for life rendring rent with clause of distresse saving the reversion and a fine of this forme is good The manors and tenements contained in the writ may bee divided 44 Ed. 3. 11 45 Ed. 3. 12. as if a fine be levyed betweene A and B of two Manors and B doth acknowledge all his right
with Proclamations and he in the remainder suffer the 5. yeares to passe in this case he is barred of his entrie upon the alienation for the forfeiture but it hath been held that if the tenant for life die that he shall have another 5. years time to bring his Formedon in the remainder So if the husband make a feoffement of his wives Plow 357. 368. 372. land to another upon condition which is broken and he levieth a fine of this land and the husband hath issue by his wife and dieth and the first 5. yeares passe and then his wife dieth hereby he is barred of the title by the condition but he shall have 5. yeares more to make his claime as heire to his mother But if lands be given to H for the life of A the remainder to B for life the remainder to H in fee and H is disseised and after the disseisor levie a fine and 5. years passe in this case H is barred both of his present and future estate and shall have no further time to make his claime c. and yet if Cestuy que vie and he in the meane remainder die H shall have another 5. years to make his claim to preserve his remainder In like manner it is if land be given to H for the life of A the remainder to him for the life of B the remainder to him for the life of C and he is disseised and the disseisor levieth a fine with Proclamations in this case some say H for his present right shall have 5. years by the first saving of the Statute and 5. years after the death of A by the second saving of the Statute If one disseise a feme sole and after mary her and have issue by her and the husband is disseised before mariage or after and then a fine is levied with Proclamations and the husband dieth first and afterwards the wife dieth within the 5. years the issue being of full age the 5. years passe hereby he is bound as heire to his father but he shall have 5. years more after the death of his mother to make his claime 8 c. Quando duo jura in una persona concurrunt aequum est ac si essent in diversis Where there is a precedent agreement amongst the parties as a Co. 10. 96. 2. In the Lord Cromwels case â—â— How a fine shall enure and work feoffement or the like there the fine shall not passe any thing nor work by way of Estoppell but only by way of corroboration and shall be guided by the precedent agreement And therefore if a feoffement be made to two and their heires and after a fine is levied to them two and the heires of one of them this shall enure as a release and shall not alter the estate but if there be no precedent agreement it shall work as it may Dyer 157. Fitz. Estoppell 211. Co. 2. in Cromwels case If A enfeoffe B of certaine land in fee rendring rent with condition of re-entrie for not payment of rent and by indenture at the same time covenant to levie a fine of the same land to the feoffee to the uses and conditions in the deed of feoffment and after a fine is levied sur conusance de droit come ceo c. accordingly in this case this fine shall enure as a fine sur release because the Conusee hath the fee before and it shall not enure by way of Estoppell albeit it bee a fine sur conusance de droit come ceo c. And Estoppell Extinguishment therefore the rent and condition shall remaine in this case and not be extinct A fine may be avoided for many causes as by the death of the parties See before at Numb 6. part 2. F. N. B. 20. f. Stat. 23. El. ch 3. after the conusance before the recording of it or by covin in the 12. Where a fine may be avoided or not And how 1. By a writ of error procuring of it Also it may be avoided for other causes as for some error in the proceeding in the suing out of the fine and this is done by writ of error but this error then that shall not make a fine voidable must be notorious because the thing is done by consent and it is a rule in Law Consensus tollit errorem And by this means if the husband Co. 2. 77. 2. 76. and wife levie a fine and both of them be within age whiles either of them be within age they may avoid the fine as against them both But if there be tenant for life and he in remainder in taile being an Infant and they two levie a fine and he in the remainder reverse it for infancy this shall not avoid the fine as to the tenant for life also A fine also is and may be sometimes avoided or at Plow 358. 359. Co. 9. 106. least lose much of his force by the claim entry or action of him that hath right to the land for if the estate contained in a fine be 2. By a claime entrie c. And by whom a claim c. may be made once within 5. years after Proclamations lawfully defeated the party hath thereby left his whole estate both against him which did reverse the same and against all others which had right or title paramount and made no claime within the 5. years albeit he which doth bring the action have no judgment and execution within 7. years after the Proclamations In like manner if there be tenant for life the remainder for life the remainder in fee and the first tenant for life alien and the alienee levie a fine with Proclamations and the second tenant for life claim or enter c. this doth make void the fine both against him and against him in remainder also for it is a rule That any one that hath any estate in possession or reversion which will be barred by the fine when it is levied may make a claime or entrie to prevent the bar of the fine As tenant for his own or for anothers life tenant for years he in reversion or remainder after an estate for life or years a Copyholder or the Lord a Gardian in nature or nurture may avoyd a fine And this they may do for themselves and others for others without authority precedent or assent subsequent and the claim of one of them in this case shall availe the other And by authority also any other man may make a claim entry c. in this case for him that hath right and so he may doe also without any authority precedent if the party for whom he doth it doe afterwards agree and assent unto it But a stranger of his owne head unlesse perhaps it bee for an Infant cannot make such a claime or entry to prevent the barre of a fine except hee that hath the right doe give him authority before it be done so to doe or doe agree
hath an estate taile If lands be granted to I S to have and to hold to him and the 12 N. 4. heires he shall happen to have of his wife by this he hath but an estate taile and no feesimple and his wife hath no estate at all If lands be granted to I S and the heires that the said I S shall Co. super Lit. 20. lawfully beget of his first wife and he hath no wife at the time of the grant by this he hath an estate taile If A have issue by B his wife C a sonne D a daughter and A Co. super Lit. 26. die and lands are granted to B to have and to hold to her and to the heires of A her late husband on her body begotten in this case and by this deed C hath an estate taile the woman hath only an estate for life and if C die without issue D his Sister shall have the land per formam doni But if one grant lands to A late wife of I S to have and to hold to the said A and the heires of I S on the body of the said A begotten in this case the son and heire shall take no estate by the grant And the same construction shall be upon the same words in his Will Will. If lands be granted to the husband and wife to have and to hold Co. super Lit. 26. to them and the heires of the body of the surviver of them by this the survivor shall have an estate taile after the death of the other If lands be granted to I S to have and to hold to him heredibus Co. super Lit. 20. de carne sua or heredibus de se or heredibus quos sibicontigerit in all these cases I S hath an estate taile and no more If lands be granted to husband and wife to have and to hold to Co. super Lit. 28. him and the heires of the body of the husband the remainder to the husband and wife and the heires of their two bodies begotten this remainder is void and therefore by this the husband hath an estate in taile and the wife a joint estate for life with her husband and no more If lands bee granted to I S and his heires of the body of Co. 1. 140. Jane a Noke begotten by this I S hath an estate taile and no more If lands be granted to I S heredibus de corpore procreatis by this the heires that shall be begotten afterwards shall take And Co. super Lit. 20. if lands begranted to I S heredibus de corpore procreandis by this the heires of his body before begotten shall take per formam doni as well as those that shall be begotten afterwards If one grant to I S that if he and the heires of his body bee not Co. super Lit. 146. yearely paid 40. that hee or they shall distraine in the lands of the grantor by this the grantee hath an estate in taile in the rent as if he grant to I S that if he and his heires be not paid c. that he or they shall c. he hath a feesimple in the rent For life If one give or grant land to another to have and to hold to him Lit. Sect. 283. 285. Co. 8. 85. 96. 2. 24. Finches Law 60. Co. super Lit. 9. Dyer 307. Co. 7. 23. or to him and his assignes and say not how long nor for what time and the grantor make livery of seisin according to the deed by this the grantee hath an estate for his owne life But no livery of seisin be made no estate at all but an estate at will doth passe by this deed And if he that doth grant the land be but a lessee for years of the land and he make no livery of seisin upon the grant by this his terme of years and that estate which he hath is granted But if he make livery of seisin upon the grant then an estate for the life of the grantee will passe and it is a forfeiture of the estate of the lessee for Forfeiture 17 Ass Pl. 17. years of which he in reversion may take present advantage And if one grant to another Common in his land when he doth put in his owne beasts or Estovers in his Manor when he commeth there and say no more by this it seemes the grantee hath an estate for life If one grant land to I S to have and to hold to him or his heirs Co. 5. 112. super Lit. 8. in the disjunctive this is but an estate for life and no more So if one grant lands to I S to have and to hold to him and his heire in the singular number by this I S hath only an estate for life and no feesimple If one bargaine and sell land to another for money and limit no Co. 1. 87. 130. Plow 539. time and expresse no estate by this the bargaine shall have only an estate for life But otherwise it was before the Statute of Uses for then it had been a fee simple If lands be granted to I S for life and after to the next heire Co. 1. 66. male of I S and the heires males of the body of such next heire male by this I S hath but an estate for life But if it be to the next heires males of I S it is an intaile If one grant land to I S to have and to hold to him in fee 20 H. 6. 33. simple or in fee taile without saying to him and his heirs or to him and his heires males or the like this is but an estate for life and no more So if one grant land to I S to have and to hold to him and his feed or to him and his issues generally without more Co. super Lit. 8. 20. words by this is made only an estate for life But in the construction of a Will the law is otherwise in most of these cases Will. If lands be granted to two heredibus without this word Suis 20 H. 6. 35 by this they have an estate for their lives and no longer If one grant lands to I S to have and to hold to him and his Co. 5. 112. 1. 140. heires for his owne life or for the life of I D by this I S hath an estate for life and no more If one grant lands to A and B Habendum sibi suis omitting Co. 4. 29. super Lit. 1. 8. all other words or to have and to hold to them and their assignes by this they have an estate for life only So if lands be granted to any naturall person to have and to hold to him and his Successors by this he hath only an estate for his life If one grant his lands to I S to pay his debts to have and to Co. 8. 96. hold to him generally without limiting
the heires of his body begotten on the wife he shall first mary or To have and to hold to him and his wife he shall first mary and the heirs of their bodies begotten in these cases the husbands have the whole estate and the wives nothing at all But Use otherwise it is it seemes when the estate is limited by way of use to a man and his wife that he shall afterwards mary for by this it seemes the wife shall take also If lands be granted to A a maried man and to S a maried wife 15 H. 7. 10. and to the heirs of their bodies engendred by this they have each of them an estate taile presently executed and whiles the wife of the husband and the husband of the wife live they shall hold it for their lives and if they happen to die and these to intermary and have issues their issues shall have it according to the intaile If lands be granted to A and B To have and to hold to A for Dier 126. 56. When the Habendum shall be said to be repugnant and void And when not but shall controll divide or expound the premisses life the remainder to B in fee by this A shall have the whole for his life and B the feesimple afterwards As touching this matter these differences are to be taken Co. 2. 23. 8. 56. Perk. Sect. 181. 14 H 8. 14. Co. super Lit. 183. Between things that are granted and between the estates When the things that are granted are such as lye in grant and take effect by the delivery of the deed only without any ceremony or take effect by the same ceremonie and when not but another ceremony is required to the perfection of the grant and estate And when there is an expresse estate made by the deed in the Premisses thereof and when but an implied estate only as for examples If one grant land rent common or any such like thing to one and his heires by the Premisses of the deed To have and to hold to him for life or To have and to hold to him and to his assignes without more words in this case the Habendum is repugnant and void and by this the grantee shall have an estate in feesimple if livery of seisin and atturnment as the case doth require be duly made for otherwise no estate at all but at will will passe So if a man grant a rent or any such like thing that lieth in grant to one and his heires To have and to hold to him for years this is a void Habendum and the grantee shall have the feesimple But if a man grant land to another and his heires To have and to hold to him for a certaine number of years in this case whether he make livery of seisin or not it is a good Habendum and by this the grantee shall have an estate for so many years and no more So if one grant land rent common or any such like thing to one in the Premisses of the deed without limitation of estate which in judgement of law is an implied estate for life To have and to hold to him for a certain number of years or at will this Habendum is good and shall stand with the Premisses and qualifie it and by this the grantee shall have but a lease for years or at will as the Habendum is And if one grant land by the Premisses Co. 8. 154. 21 H. 6. 7. Co. super Lit. 20. Dier 126. per curiam in Thurmans case Pasc 16 Jac. B. R. 21 H. 6. 7. of a deed to one and his heires of his body To have and to hold to him and his heires this Habendum shall stand and this shall be taken an estate taile and a feesimple expectant So vice versa If land be granted to one and his heires To have and to hold to him and his heirs of his body this shall be construed an estate taile and a feesimple expectant and so both shall stand together If lands be given to B and his heirs To have and to hold to B and his heires and if he die without heires of his body that it shall Co. super Lit. 21. revert to the donor it seemes this is a feetaile only and no feesimple expectant Voluntas donatoris in carta doni sui manifeste expressa observanda est If a lease for years be made of land and then the lessor by the premisses of the deed granteth the land to another To have and to Co. 10. 107. 108. hold the reversion of the land to him c. for life this Habendum shall stand So if by the Premisses of the deed the reversion be granted To have and to hold the land it selfe this is good and both shall stand together but nothing is granted in either case but the reversion If the next Advowson of a Church be granted to three To have Dier 304. Co. 5. 19. to hold to them and either of them jointly and severally this is joint and the Habendum is void * Co. 2. 55. And yet if one grant land to two by the Premisses of the deed To have and to hold to one of them for Super Lit. 183. Dier 106. life the remainder to the other for life this is not repugnant but shall stand together and make the estates severall and in remainder one after another So if a lease be made to two To have and to hold the one moity to the one and the other moity to the other by this they have severall estates Expressum facit semper cessare tacitum If a man have a lease for years of land and he reciting this by Dier 272. Plow 520. the Premisses of the deed doth grant all his estate in the land To have and to hold the land or the terme after his death or for part of the time only in this case the Habendum is void and the whole estate doth passe immediatly by the premisses If a tenant for life surrender a moity of his land and the lessor Dier 256. grant it all to a stranger To have and to hold the one moity for life and the other moity for 40. years after the death of the tenant for life this Habendum shall stand and enure according to the grant If a man seised of land in fee make a lease for life of it to one Curia pas 7 Jac. Co. B. and after grant the reversion of it to another To have and to hold the reversion and the tenements aforesaid cum post mortem forisfact ' c. vacare acciderit in this case the Habendum and premisses may stand together It is usuall in the Habendum of a deed to set down to what use the party to whom the deed is made shal have the thing granted But touching this and the matters that doe concern uses see Vse infra at large And see also more for the Exposition of Deeds
otherwise and yet his power may remain for the residue as in the case of a limitation but in the case of a condition he cannot doe so 8. Such grantees as shall have advantage by this Statute must be compleat grantees Co. 5. 113 114. Co. 8. 92. And therefore grantees of reversions by fine or deed must have atturnment ere they can take advantage of the condition And yet if a reversion be granted by fine to one that hath no atturnment and he grant it to another that hath an atturnment in this case the second grantee shall take advantage of the condition albeit the first grantee shall not And the lessee must have notice of the grant of the reversion ere he in reversion can take any advantage of a condition And therefore it is that if the lessor bargain and sell the land by deed indented and inrolled in which case there needs no atturnment or if the lessor make a feoffment of the land and so out the lessee and the lessee reenter which is an atturnment in law the grantee or feoffee in these cases cannot take advantage of any condition before he hath given notice to the lessee of this grant of the reversion 9. Such as come in meerly by act of law or paramount as the Lord of a Villain the Lord by Co. super Litt. 214. Pasche 7 Jac. Co. B. per 2 Justices escheat the Lord that doth enter for Mortmain or the like cannot take advantage of a condition within this Statute And hence it seems it is that if lessee for forty yeares make a lease for thirty seven years on condition and after surrender his estate to his lessor * Co. super Litt. 215. Dier 309. Curia in Leeks case Pasche 7 Jac. Co. B. Albeit the words of the Statute be generall yet grantees and assignces shall not take benefit of every forfeiture by force of a condition nor yet of all conditions but onely of such as are inherent i. such as are either incident to the reversion as for payment of rent or for the benefit of the State as for restraining of wast for causing of reparations making of fences skowring of ditches preserving of woods and the like And of conditions that are collaterall such grantees shall not take benefit And therefore if the condition be for payment of a sum of mony in grosse to restraine alienation for the delivery of corn wood or the like the grantee of the reversion of the land shall not have advantage of it by this Statute for these remain as they were before the Statute at the Common law 11. Such conditions as are on the part of the lessor it seems are not within this Statute And therefore if one Per Justice Bridgman make a lease for years on condition that if the lessor his heirs or assigns pay ten pound to the lessee at our Lady day the lease to bee void the lessor doth grant the reversion to a stranger before the day it seems the grantee shall not take advantage of this but the condition is gone If one make a lease for years rendring rent to him and his heirs Doct. St. 35. 13 H. 4. 17. on condition that if it be not paid within fourteen days that hee and his heirs shall reenter and the rent is behinde and the lessor doth demand it and then die in this case the heir may enter But if he die before demand the heire cannot make a demand and so take advantage of that breach of the condition which was in the time of his Ancestor If a man be possessed of land for twenty years in the right of his Perk. Sect. 834. wife and he make a lease of it for ten years rendring rent with condition of reentry for default of payment and after the husband die in this case the wife shall have the rent but it seems she shall not take advantage of the condition If a lease be made to I S on condition that if such a thing be Co. 1. 85. super Litt. 379. Dier 127. 117. or be not done that the land shall remain to I D or that I D shall enter in this case I D shall never take advantage of this condition either by the Common law or by this Statute Regularly where a man will take advantage of a condition if he 13. Where entry or claim is needfull to avoid an estate on condition And where a man may take advantage of a condition without entry or claim And where not Co. super Litt. 218. 237. may enter he must enter and when he cannot enter he must make a claim for an estate of freehold or inheritance will not cease without entry or claim And he that is to have advantage by the condition may wave his advantage if he will And untill such entrie or claim made the party that should enter can make no good estate of the thing to any other But herein a difference is to be observed in the penning of a condition and between a lease for yeares and a lease for life or a greater estate for if a lease for years be made on condition that upon such a contingent the estate shall cease or the lease shall be void in this case when the thing doth happen the lease is ipso facto void without entry or claim But otherwise it is of a lease for life albeit there be the same words in the condition And if one make a lease for years on condition that if such a thing be done the lessor shall reenter in this case an entry is needfull to avoid the estate If one make a feoffment in fee gift in taile or lease for life on condition that upon such a contingent the estate shall be void in this case there must be an entry made after the condition is broken to avoid the estate So if one bargain and sell his land by deed indented and inrolled with proviso that if the bargainor pay c. then the estate shall cease and be void he doth pay the mony in this case the estate is not revested in the bargainor before an actuall reentry is made And so it is also if lands be devised to a man and his heirs on condition that if the devisee doe not pay twenty pound at a day his estate shall cease and be void in this case the estate is not void untill an actuall reentry be made And so also it is if a reversion remainder advowson rent common or the like be devised on such a condition in these cases there must be a claime before the estate will be determined And therefore if a man grant such a thing to another and his heirs on condition that if the grantor pay twenty pound on such a day the state of the grantee shall cease or be void and the grantor doth pay the mony according to the condition in this case the state is not revested in the grantor before a claim made at
then the donee dieth without issue this warranty doth begin by disseisin So if the father and son and a third person be jointenants in fee and the father maketh a feoffment in fee of the whole with warranty and dieth and then the sonne doeth in this case as to the part of the third person and to the part of the sonne the warranty shall be said to beginne by disseisin But releases at this day by a tenant for life to a disseisor or any other without covin albeit it bee to the intent to barre him in reversion shall barre him for intent without covin and disseisin shall not avoid a warranty And examples of warranties that doe begin by disseisin have these qualities 1. That for the most part the disseisin is done immediately to the heire that is bound by the warranty 2. The warranty and disseisin are simul and semel And yet if a man disseise another with intent to make a feoffment with warranty albeit the feoffement be made twenty years after the disseisin yet it shall be said to bee a warranty that doth beginne by disseisin But in all these cases of warranties that doe beginne by disseisin this is the rule That they are altogether void and without force as to all others but to the parties themselves that doe make them and therefore they do not barre or binde any others at all of their right that have any And the same Law is of a warranty that doth begin by abatement or intrusion that is when an abatement or intrusion is made of purpose to make a feoffement in fee with warranty And so also it is where the tenant dieth without heir and an Auncestor of the Lord doth enter before the entry of the Lord and make a feoffement in fee with warranty in this case this shall not binde the Lord because it doth begin by wrong All warranties in generall are favourably taken in Law because 11. How a warranty shall be taken they are part of mens assurances Every warranty in Law is taken for and hath the effect of a lineall warranty The warrnaty that is made by Dedi Concessi or Dedi only in a Co. 4. 81. 5. 17. feoffement is and shall be taken for a generall warranty against all persons to the feoffee and his heires during the life of the feoffor onely albeit there be no service reserved by the deed nor heir named but it shall not extend to the assignee of the feoffee And if there be any service reserved on the deed then it shall extend against the heir also The warranty in Law that is made upon a gift in tail or lease for Co. 4. 81. super Litt. 384. life rendring rent is a speciall warranty against the donor and lessor and his heirs and assignes so that the donee or lessee may vouch the grantor after the grant of the reversion or the grantee of the reversion after the atturnment of the tenant at his election The warranty in Law that is made upon an Exchange is special in Co. 4. 121. super Litt. 384. divers respects for it extendeth reciprocally to and against the heires of both parties and it doth extend only to the same land that is given in exchange and none other and no use can be made of it but by voucher for no Warrantia Cartae doth lie upon it So also the warranty that is made in dower is taken to extend only to the other two parts of the land The warranty in Law that is made upon the tenure of Homage Co. super Litt. 384. Auncestrel extendeth reciprocally to the heires and against the heires of both parties If a feoffement be made of land to three jointly and the feoffors Co. 5. 59. doe warrant the land to the feoffees and every of them this warranty shall be joint and not severall But if the estate be severall as if one grant white acre to A and blacke acre to B and grant to warrant the land to them and either of them in this case the warranty shall be severall If a man of full age and an infant join in a feoffement with warranty Co. super Litt. 367. this shall be taken for a good warranty as to the whole for him that is of full age and void for the infant and not void in part and good in part Co. super Litt. 386. If a man make a feoffment in fee bind his heirs but not himself to warranty in this case and by this his heirs shall not be bound and Co. super Litt. 47. 385. Dier 42. Kelw. 108. Co. 6. 69. a man binde himselfe to warrant and not his heirs by the feoffement in this case the feoffor himselfe is bound to the warranty but not his heirs for it is a maxime of Law That the heir shall never be bound to any expresse warranty but where the Auncestour was bound by the same warranty If one make a feoffment to B and his heirs and thereby doth grant to warrant the land and doth not say to B and his heirs yet this warranty shall be taken to extend to them But if the feoffor doth grant to warrant the land to B and doth not say to his heires this shall not extend to his heirs And if in this case the warranty be to B and his assignes it shall not extend to his heirs neither shall the assignees take advantage of it after the death of B. And if the warranty be to B and his heirs and not to his assignes also this shall not extend to his assignes If one make a feoffment to A habendum to him and his heirs and binde himselfe and his heirs to warrant the land in forma praedicta in this case the warranty shall extend to the feoffee his heirs If one grant to warrant land to another and his heirs and doth Co. 1. 1. not say against what persons this shall be taken for a generall warranty against all men If one make an estate and grant to warrant the land but doth not say how long this shall bee taken for as long as the estate to which the warranty is knit doth last If a warranty be made against any speciall persons it shall extend Dier 328. to them and no further and it shall extend in all cases for and to all titles and entries upon title and it shall not in any such cases extend to tortious and unlawfull entries If a man bee seised of a rent-seck issuing out of the Manor of Co. super Litt. 366. Dale and hee take a wife and the husband doth release to the terre-tenant and warranteth tenementa praedicta and dieth this warranty shall extend to the rent as well as to the land and therefore if the wife sue for her thirds of the rent the terre-tenant may vouch the heire And regularly the warranty doth extend to all Co. super Litt. 388 389. things issuing out of the land viz. to
howsoever the lease bee made it will not binde him that comes in of a remainder over nor him that is the donor And therefore if a tenant in tail make a lease warranted by the statute and after die without issue so that the land doth remain over to another or revert to the donor in these cases neither he in the remainder nor the donor shall be bound by this lease for as to them the lease is void And yet by a common recovery the tenant in tail may make leases of or lay charges upon the land to binde the donor and him in remainder also But otherwise it is of a fine for if tenant in tail make a lease for years by fine this will not barre the donor not the remainder in any case where it is in a stranger And yet if the remainder be in the tenant in tail himself and he make a lease for years by deed according to the Statute or by fine this lease is good and shall bind his own remainder The husband may at this day without fine or recovery make leases 6. What leases or other acts may be made or done by the husband with the lands he hath in fee simple or fee tail in the right of his wife or joyntly with her And what leases made by him of such lands are good Or not And how Stat. 32. H. 8. cap. 28. Co. super Litt. 44. of the lands tenements or hereditaments whereof he hath any estate of inheritance in fee simple or fee tail in the right of his wife or jointly with his wife made before or after the coverture so as there be in such leases observed the eleven conditions or limitations before required in the leases made by tenant in tail and so that the wise doe joyn in the same deed and be made party thereunto and doe seal and deliver the same deed her self in person For if a man and his wife make a letter of Atturney to another to Pasch 7 Jac. B. R. deliver the lease upon the land this lease is not a good lease from the wife warranted by the statute And yet then as in other like cases of leases not warranted by this statute it is a good lease against the husband And when the lease is such a lease as is warranted by the statute it doth bind the husband and wife both and the heirs of the wife but if it be an estate tail it doth not bind the donor nor him in remainder If the husband and wife at the Common Law had joyned in a 26 H. 8. 2. lease of her land without rendring of rent this lease had been void as against the wife and so is the law still If the husband at the Common Law had been seised of land in 26 H. 82. Co. 2. 77. the right of his wife and hee had made a lease for yeares rendring rent and died this lease had been void and so is the law still If the husband and wife at the Common law had made a lease Dier 92. by word rendring rent this lease had been void as against the wife and so is the law still The husband and wife together may by fine or recovery make Stat. 32 H. 8. ch 28. See the womans lawyer 163. what leases they will of her land or charge it for what time they will and such leases and charges will be good against the husband and wife both and their heires also But if the husband alone doe levie any fine of his wives land and thereby make any estate whatsoever this will not bind the wife after her husbands death but she may avoid it And if the husband and wife make a lease of her land rendring rent to them and the heires of the wife as in such leases it ought to be in this case the husband cannot by fine or otherwise grant or discharge this rent longer then during coverture unlesse the wife join in the fine but the rent shall descend remaine or revert in such sort and manner as the land should have done Bishops with the confirmation of the Deane and Chapter Parsons Co. super Lit. 44. Co. 5. 14. 11. 66. or Vicars with the consent of their Patrons and Ordinaries 7. What leases or other acts Bishops or other spirituall or ecclesiasticall persons may make or doe with the lands they have in the right of their churches or houses And what leases made by such persons will bind their successours and others Or not Archdeacons Prebends and such as are in the nature of Prebends as Precentors Chaunters Treasurers Chancellors and such like also Masters and governours and Fellowes of any Colledges or houses by what name soever called Deanes and Chapters Masters or Gardians of any Hospitall and their brethren or any other body politique spirituall and ecclesiasticall Concurrentibus hiis quae in jure requiruntur might by the ancient common law have made leases for lives or yeares or any other estates of their spirituall or ecclesiasticall living for any time without stint or limitation And at this day the Bishops and the rest of the said Spirituall Stat. 32 H. 8. ch 28. 13 El. ch 10 1 Jac. chap. 3. 1 El. ch 19. 14 El ch 11. 18 El. ch 10. 20. persons except Parsons and Vicars may make leases of their spirituall livings for three lives or twenty one years and such leases will be good both against themselves and their successors But such persons may not make leases or estates for any longer time then for three lives or twenty one years and if they doe albeit it be by fine or recovery or it be confirmed by the Dean and Chapter c. yet it is void as against the successor Neither will the leases made by such persons for three lives or twenty one years be good unlesse they have certain conditions and properties required in them These things therefore are necessarily required to be observed in the making of such leases 1. That they have the effect of all the qualities or properties before mentioned and required by the Statute of 32 H. 8. Co. super Litt. 44. Co. 11. 66. 5. 3. 15. in the lease made by the tenant in tail and be made after that pattern viz. That they be by deed indented 2. That they do begin from the time of the making of them 3. 4. That the old lease be surrendred and there be not a concurrent lease save in case of a Bishop And therfore if any such person make a lease for 21 years to one then make a lease for three lives to another this second lease is void And yet if a Bishop make a lease for 21 years to one man then within a year after make another lease to another for 21 years to begin from the making of it this so as it be confirmed by Dean Chapter is resolved to be a good lease 5. That they doe not exceed three lives or twenty one yeares
feoffment is good And if one assign a woman her dower in exchange for land this shall not take effect as an exchange but it shall enure to be a good assignment of dower If two doe exchange land by deed and limit no estates this shall 19 H. 6. 27. Perk. Sect. 275. 5. How an Exchange shall be construed and taken be taken for estates for life and the exchange is good but if an expresse estate be limited to one and no expresse estate to the other it is said this is not good and that construction of law wil not help it If an exchange be made between two men of two acres of land Perk. Sect. 251. by deed and in the Habendum it is set down that each of them shal have the acres given in exchange with divers other acres not expressed in the premisses this addition shall be taken as surplusage and the exchange shall be good for the two acres See more in Exposition of Deeds If after an exchange is made before or after the parties enter all Perk. Sect. 286. Co. 4. 122. Perk. Sect. 299. Bro. Exchange 12. 6. Where an Exchange shall be determined or the nature of it changed by matter ex post facto And how And where not or part of the land given to either party be recovered from him upon an elder title as by an entry upon a condition broken alienation in Mortmain or upon a disseisin in these cases if that party enter again upon his own land which he gave in exchange as hee may hereby the whole exchange is determined But if after the exchange is perfect one of the parties doe enter upon the land he doth give in exchange this doth not make void the exchange neither may the other party hereupon enter upon the land he doth give in exchange but he may have an assise or an action of Trespasse against the other And yet if an exchange of a common for a way Perk. Sect. 299. or a rent or the like if the one party deny the common it hath been said the other party may deny the way or the rent Sed quaere If an exchange be made of fee between two of a Manor whereof Bro. Exchange 8. Perk. Sect. 297. the one half is in tail and the other half is in fee simple and the tenant in tail that made the exchange die and his issue disagree to it so that the exchange of the tailed land is become void this doth determine the whole exchange for when an exchange becometh void in part it becometh void in all and untill it be avoided it is good for all As if one be seised of white acre and he exchange white acre and black acre which is none of his with another for two other acres this shall continue for a good exchange and not be avoided untill he that hath right to black acre doth evict him that hath it in exchange If an exchange be made by tenant in tail and his issue after his Co. 4. 122. Perk. Sect. 296. 294. 290. 298. death waive the possession of all or part of the land taken in exchange and disagree to the exchange hereby the whole exchange is determined So if the wife after the husbands death the infant at his full age or the heir of him that is de non sane memorie disagree to the exchange of the husband the infant or him that is de non sane memorie hereby the whole exchange is determined and no subsequent agreement can make it good again If two doe make an exchange by word of mouth and after before 15 E. 4. 3. either of them enter they make Indentures of the lands exchanged and grant the same from one to another it seems hereby the nature of the exchange is changed and the exchange determined The parties themselves and all privies and strangers for the most Perk. Sect. 285. Co. 1. 105. Dier 285. Perk. Sect. 290. 294. 298. Co. 1. 98. part may take advantage of such exchanges as are void for the defects 7. Who may take advantage of a void or voidable Exchange Or not And when Infant before named But when the exchange is only voidable contrà And therefore when an exchange is made by an infant the infant himself at his full age or his heir and none other may avoid it And when an exchange is made by a tenant in tail the issue in tail after the death of his auncestor and none other may Tenant in tail avoid it And when an exchange is made by the husband or husband and wife of the wives land the wife after the husbands death Husband and wife Home de non sane memorie or heir of the wife after her death and none other may avoid it And when an exchange is made by a man of nonsane memorie his heir after his death and none other may avoid it But in all these cases of infant tenant in tail woman covert and a man de nonsane memorie and where lands are recovered by an elder title the other party may not enter and avoid the exchange untill the infant issue in tail woman or heir of him that is de nonsane memorie or him that doth lose the land by an elder title doth first enter If an infant exchange lands and after at his full age occupy the 8. Where an Exchange voidable at first doth become good by matter ex post facto Or not lands taken in exchange for his own lands hereby the exchange is Co. super Lit. 51. 12 H. 4. 11. Perk. Sect. 290. 294. Fitz Eschange 13. Perk. Sect. 291. 279. 293. 298. made good So if tenant in tail exchange his intailed lands with another and after his death the issue occupy the lands taken in exchange by his auncestor hereby the exchange is made good for the life of the issue in tail So if the husband and wife exchange the lands of the wife for other land and she after her husbands death Tenant in tail Husband and wife agree to it and enter into and agree to the lands taken in exchange hereby the exchange is made good but if the husband alone make an exchange of his wives land and she after his death agree to this and enter into the land it seems this will not make the exchange good And if a man seised of land in right of his wife in fee thereof infeoff a stranger and take an estate back again to him and his wife and a third person in fee and they three join in exchange of the same land in fee for other lands to a stranger in fee and the exchange is executed and the husband dieth and she doth occupy the land taken in exchange with the other third person hereby the exchange is made good If a man de nonsane memorie make an exchange and his heir after his death enter into the land taken by his auncestor in exchange and agree to
be that I S shall serve me in all my honest and Perk. Sect. 772. 6 â—d 4. 2. To serve lawfull commands or that I S shall be a good and honest servant to me one yeare in the first case if I command him nothing the condition is not broken albeit he never tender his service but in the last case it seemes he is to tender his service to me or otherwise the condition will be broken But if I refuse his service when it is tendred or hee die within the time the obligation is discharged And yet if hee depaâ—t away within the time the condition is broken If the condition be that A shall marry B by a day and before 4 〈◊〉 7. 〈◊〉 Perk. 7â—â— To marry a woman the day the obligor himselfe doth marry her in this case the condition is broken But if the obligee marry her before the day the obligation is discharged If the condition be to performe the covenantâ— and paiments of a Deed and the deed doth containe a feoffment and this is on condition Briscoes case â—â—in 〈◊〉 Ia. c B. 〈◊〉 To performe covenants that if the feoffor pay such a summe of money he shall re-enter and he doth not pay it in this case this non-paiment is no breach of the condition But if A let land by Indenture to B for yeares rendring rent and B doth bind himselfe in an obligation Adâ—udged Griffin Scots case 5. Iac. B. R with condition to performe all the covenants contained in the Indenture and the rent is unpaid this is a breach of the condition and cause of forfeiture of the obligation If the condition be for the saâ—e keeping of prisoners and one Curia Trin 37. Eliz. To keep Prisoneâ—â— doth escape that is in execution and in prison under colour of an execution or the like but in truth and in judgement of law is no prisoner this escape is no breach of the condition See more in â—ondition at Numb 10. If the condition of an obligation consist of two parts in the disjunctive or be to do one of two things before or at a day certain 11. By whaâ— meanes and when an Obligation good in his original creation doth or may become void bee discharged or gone by matter ex post facto Or not â—oo super Lâ—â—t 207. and both the things are possible at the time of the making of the obligation and before the time of performance one of the things is become impossible to be done by the act of God or by the act of the obligee himself in this case the obligation is discharged for ever And therefore if the condition be That if the obligor shall sell away his wives land if then he shall either in his Coo. 5. 12. 25 H. 7. 2. life time purchase to his wife and her heires and assignes land of as good right and value as the money by him received or had by or upon the said sale shall amount unto or else do and shall leave unto her the said I as Executrix by legacy or otherwise as much money as shall bee by him received upon such sale That then c. and the obligor doth sell his wives land and then his wife doth die before him so that he cannot leave her the money in this case the obligation is discharged and the husband is not bound to purchase land to her and her heires So if the condition be that if I S do not prove the suggestion of a Bill depending in the Court of requests before the utas of Hillary that then he shall pay 20l Dyer 262. 15 H 7. 4. 4 H. 7. 4. Agree 9. Iac. 〈◊〉 Bathurst case c. and I S die before the utas hereby the obligation is discharged for ever and he is not bound to pay the 20l. So if the condition be that if the obligor appeare in the Kings Bench in Eastern Terme or pay 20l. to the obligee at Michaelmas and the obligor die before Easter Terme hereby the obligation is discharged but if he do not appeare in Easter Terme and out-live the Term and die after then it seems the 20l. must be paid at Michaelmas or the obligation is forfeit So if the condition be that the obligor shall marry A before Easter or pay 20l. to the obligee at Michaelmas and A die or become madd before Easter or the obligee marry A himselfe and the marriage doth continue between them untill Easter be past in all these cases the obligation is discharged for ever But when the thing is become impossible by the act or laches of the obligor the law is otherwise And therefore if the condition be that A shall marry with B before Easter or that the obligor shall pay unto the obligee 20l. at Michaelmas and the obligor himselfe marry with B and the marriage doth continue untill after Easter hereby the obligation is not discharged So if the condition be to deliver up an obligation before Easter or give a release at Michaelmas and the obligor doth loose the oblgation or the obligation is burnt hereby the obligation is not discharged for if he doth not make the release at Michaelmas hee doth forfeit the obligation If the condition of an obligation consist of one part only or be 8 Ed. 4. 22. Coo. 5. 22. Perk Sect. 7â—9 767. â—4 H. 74. 22 Ed. 〈◊〉 to do one thing at a time certain and that thing at the time of the obligation maâ—e is possible to be done but afterwards and before the â—ime when it is to be perâ—ormed it doth become impossible by the act of God or the act of the obligee in this case also the obligation is gone and discharged for ever And therefore if the condition be to appear in person such a day in such a Court and before the day the obligor die or at the day the water doth arise so high that he cannot travaile to the place without perill of life in these cases the obligation is discharged So if the condition be that A shall marry B before Easter and before the time A or B die or become madd or the obligee marry B and the marriage doth continue untill after the day in all these cases the obligation is discharged But if the thing become impossible by the act of the obligor contra And therefore if the condition be that the obligor shall appeare such a day and before and at the day hee is imprisoned through some default of his own so that he cannot appeare this will not excuse him * So held in the Exchequer 3. Cur. no more then in case where hee is so sick that he cannot appeare without perill of his life So if the condition be that B shall marry C before Easter and the obligor himselfe marry her and the marriage doth continue untill after the time in this case the obligation is forfeit * 〈◊〉 Co. B Hâ—â—
bee devised to a man and his wife and to one heire of their body and the heire of the body of that heire by this Devise Coo. super Litt. 22. Deed. an estate Taile is made in a Will as well as in a Deed. If a man devise his land thus I give White acre to A my sonne M. 18. Iac. B R. Gilberts case and his heires Black acre to B my sonne and his heires and Green acre to C my sonne and his heires provided that if all my said sons die without issue of their bodies that then all my said lands shall goe to M my wife and her heires by this Devise they have all of them estates in Taile of their land and as it seems crosse remainders to either of them of the land of each other If one devise his land thus I give my land in Dale to I S and if Coâ— 9. 128. he die without issue male of his body then that it shall remain over to I D by this Devise I S hath an estate Taile If a man hath issue three sonnes and devise his land thus viz. one part to two of his sonnes in Taile and another part to his third Litt. Broo. Sect. 4â—â— Broo. Devise 38. Done 44. sonne in Taile and that neither of them shall sell his part but that either of them shall be heire to other in this case and by this Devise either of them hath an estate Taile and if one of them dye without issue his part shall not revert to the eldest but shall remain to the other sonne for it is an implied remainder If there be husband and wife and they have issue a sonne and a Coo. super Litt. 26. daughter and the husband die and land is devised to the wife and the heires of her late husband on her body begotten in this case and by this Devise the wife hath only an estate for life the sonne an estate in Taile and so also the daughter in case he die without issue If one devise to I S that if he and his heires of his body be not For life Coo. supâ—r Litt. 147. 8. 85. paid 20l. rent yearely he and they shall distraine c. by this Devise I S hath an estate taile of this rent But if the Devise be that if I S be not paid 20l. yearly he shall distrain c. by this Devise I S hath only an estate for life So if one devise a rent of 10 l. out of his land to be paid quarterly and say not how long the rent shall continue this is but an estate for life If one devise his land thus I give my land in Dale to I S for his life or to I S without any more words or to I S and his Fitz. Devise 16. Coo. 6. 16. Perk. Sect. 577. heire in the singular number or I S and his children and I S hath children at the time of the Devise or to I S and his successors I S being a naturall person by all these and such like Devises I S hath only an estate for life in the thing devised * Mich. 13. Ia. B. R. Dyer sect 307. But if the Testator have only a Terme of yeares in the land whereof the Devise is made and devise this land to I S and doth not say for what time it seemes that by this Devise the whole Terme is devised unlesse the intent doth appeare to be otherwise And if one devise land whereof a man is seised in Fee to I S paying 10l to I D by this Devise albeit there be no estate expressed yet I S hath the Fee-simple of the land in respect of the paiment of See before Litt. Broo. Sect. 406. 125. the money But if the intent of the Testator appeare to be that I S shall have the land but for his life contra for there the consideraration will not alter the estate expressed upon the gift If land be devised thus I give my land in Dale to I S and his Deed assignes without more words by this Devise is held to be given Coo. super Litt. 9. 4. 29. no more but an estate for life by construction upon a Will as it is upon a Deed. And yet in the New Termes of the Law tit Devise the contraray is affirmed Ideo quâ—re If one devise thus I will that I S shall have and occupy my land Pasche 9. Iac Newmans case in Dale and say not how long by this Devise I S shall have the land for his life * Dyer 342. But if I devise that I S shall enter into my land and say no more by this Devise I S hath no estate at all but power to enter into the land only If a man have a sonne and a daughter and dieth and lands are Coo. super Litt. 2â— devised to the daughter and the heires females of the body of the Father by this Devise the daughter hath only an estate for her life for there is no such person for she is not heire If one devise his land thus I give my land in Dale to I S for Coo. 1. 6â— his life and after to the next right heire of I S in the singular number and to his right heires for ever by this devise I S hath only an estate for life So if one devise land to I S for life and after to the next heire male of I S and to the heires males of the body of such next heire male by this devise I S hath an estate for life only but if it be thus I give my land in Dale to I S for his life and after to the heires or to the right heires of I S by these devises I S hath the Fee-simple of the land And if it be to I S for life and after to the heires males of I S by this I S hath an estate Taile If one devise land to I S and E his wife and after their decease or the remainder to their children by this devise whether they Coo. 6. 16â— have or have not children at the time I S and E his wife have estates for their lives only If one devise a Moity of his land to his wife for life and the other Curiaâ— Ia. Co. B. Moity to his second sonne and after by another clause doth devise it all to his sonne after the death of his wife by this Devise the sonne hath only an estate for life after the wives death and no more If one devise his land to I S in Fee after the death of I B being Broo. Devise 48. 52. Litt. Broo. 107. 13 H. 7. 13. New termes of the Law tit Devise Plow 158. 414. 521. By Implication his sonne and heire apparant by this Devise I B hath an estate for ife by implication and untill the Devise take effect the law gives it to him by discent And so also it seemes the law is where
remaine to I D and his hâ—iâ—â—s in this case if the Devisee doe not pay the money I D shall not take advantage of it nor have the land according to the Devise but the heir of the Devisor shall enter and have the land and put out the Devisee And if one devise his land to I S for life on condition to pay 20 l. to I D and after to I D in Taile in this caâ— if I S doe not pay the 20l. it seemes the heire shall enter and hold the land during the life of I S and that I D shall not have it till then And in cases of Devises of goods or chattels other words will Swinb 136 make a Devise conditionall in divers cases as when as I give to to I S 10 l. when he shall be married and whiles as I give to I S â—0 〈◊〉 whiles he shall abide with my children which is as much as if he abide with my children and which as I give him 〈◊〉 which shall marry my daughter and the ablative Case absolute as my sonne being dead I give to I S 20 l. And of all these conditions regularly the Executor and no other shall take advantage But if the condition bee such for the matter and substance of it as is impossible unlawfull or the like there perhaps these words may not make a condition nor the thing devised conditionall but rather make the whole sentence void Whereof read Swinb part 4. Sect. 5. at large If one devise his land to his daughter and heir apparant in Fee-simple 11. Where a Devise void or voidable in his exception may become good by matter ex post facto or not â—itz tit Asâ—â—se 27. this Devise is void yet if in this case the wife of the Devisor be privily with child of a sonne which is born after his death now is the Devise become good for now shee is not heir to her father If a woman that hath a husband devise her land by Will during Plow 344. the Coverture and after her husbands death when she is sole she do publish and approve it in this case and by this meanes the Devise is become good but if she make and publish it during the Coverture and after her husband die and she become sole this accident without any more will not make the devise good the same Law is of the Devise of good and chattels If an Infant within age devise his lands or goods and publish his Plow 344. Will and after he comes to bee of full age he doth publish and approve it againe in this case and by this meanes the Devise is become good but if the Infant live to be of full age and doe not publish and approve it contrâ— If a Legacy of goods or chattels be given on condition to a man Swinb 340. uncapable and before the condition is extant he doth become capable in this case and by this meanes the Devise is become good See before at Numb 6. more of this matter A Devise that hath a good beginning is sometimes avoided and 12. Where 〈◊〉 Devise good in his inception shall or may become void by matter ex post facto or not Liâ—â— 16â— Coo super 〈◊〉 112. Plow 540. 541. Coo. 8. 〈◊〉 33. overthrown by subsequent matter in the same Will and sometimes by subsequent matter in another Will and sometimes by some other accident ex post facto For if a man make a subsequent or latter Devise either in the same or in another Will so contrary and repugnant to the former that both cannot stand together this doth overthrow tâ—e former And therefore if a man doe give White Acre to I S in Fee or his white horse to I S and after by the same or another Will doth give White Acre to I D in Fee or his white By a subsequent repugnant Will horse to I D these latter Devises doâ— overthrow the former cum duo inâ—â—r se pugnantia reperiuntur in testamento ultimum ratum est And as a latter Will doth overthrow the foâ—mer so the latter part of a Will doth overthrow the former part of the same Will But if the Devisees be such as they may stand both together and are not directly repugnant nor doâ— fight one against another there the latter shall not overthrow the former but both shall be received And therefore if one devise his land to I S and his heires and See before after by the same Will devise a Rent out of the same land to I D and his heires or è contra So if one devise White acre to A for life and afterwards give the same acre to B in Fee in this case the one may have it for his life and the other may have the Fee-simple afterwards If one devise his land to his sonne and heire in Fee-simple or Plow 〈◊〉 Perk. Sect. 569. Litt. Bâ—â—â— 453. Kitchin 127. Dyer 317. 350. devise it to a stranger for yeares the remainder to his sonne and heire By a waiving of the estate devised in Fee-simple and the heire after the death of the Devisor doth as he may waive the estate given him by the Devise and claime the the land by discent in this case and by this meanes the Devise is become void But if the Devise be to the sonne and heire in Taile the remainder to a stranger there he cannot waive the Devise and take it in any other manner And so if a man have only two daughters who are his heire and he devise his land to them or have Gavelkind land and dâ—vise it to all his sonnes they may not waive these Devises and take by discent for by Devise they shall take as â—ointenants who otherwise by discent shall take as Parciners If one devise his land to another in Fee simple Fee taile for life Litt. 〈◊〉 Sect. 482. Perk. Sect. 569. Dyeâ— 6â— Coo. 9 140. Ploâ— 543. â—4â— â—r yeares and the Devisee after the death of the Testator doth refuse and waive the estate devised to him in this case and by this meanes the Devise is become void And it seemes a verball waiver is sufficient in this case So if one give goods or chattels to another and the Devisee refuse it by this meanes the Devise is become void and any waiver or refusall will suffice in this case for a man shall not bee compelled Nolens volens to take a thing devised to him If a woman sole devise her lands or goods by Will and after take Plow 34â— a husband and die during the Coverture by this meanes the Devise is become void And yet if she survive her husband and die unmarried now is the Devise become good againe If one devise his land to I S and his heires and afterwards I S Plow 60 34â— 34â— 34â— die living the Testator by this meanes the Devise is become voyd And in this case no verball declaration of
Estoppell Estoppell And therefore if a lessee for yeers or a disseisee or one that hath right onely to a remainder or reversion levie a fine to a stranger that hath nothing in the land this fine is void or at least voidable as to and by any stranger thereunto and he that hath cause may shew that the freehold estate and seisin of the land was in another before and at the time of the fine levyed and that Partes finis nihil habuerunt tempore levationis finis And by this avoid it And yet a vouchee after he hath entred into the warranty may levy a fine unto the demandant but not to a stranger And a disseifor may levy a fine to a stranger that hath nothing in the land and this is a good fine for he hath the fee simple by wrong in him Also the issue in taile may be barred by way of Estoppell by a fine levyed by Ancester being tenant in taile albeit neither conusor nor conusee have any estate of freehold in the land a a 26 H. 8. 9. Dyer 334. 69. Plow 375. 338. E. 4. 13. 11 E. 4. 68. A Joint-tenant tenant in Common or Coparcenour may levy a fine of his part to a stranger and this will be a good fine And so also as it seemes may one Goparcenour or tenant in common to another One single member of a corporation aggregate of many cannot levy a fine of the lands of the corporation as the Maior or Master of a College cannot levy a fine without the communalty or his fellows c. But such persons may levy fines of the lands they are solely seised in their own right as other men may die Such as have estates of freehold in in Ecclesiasticall lands in the right Co. 11. 78. of their Churches houses c. as Bishops Deanes and Chapters Prebends Parsons and the like may not levy a fine of such lands for if they doe it will not bind the successor He that hath an estate of fee simple in lands in the right of his wife ought not to levy a fine thereof without her and if he doe shee Stat. 32 H. 8. chap. 28. 12 E. 4. 12. Co. 6. 55. Broo. Fines 121. Stat. 32 H. 8. ch 36. Co. 5. 3. 4. Stat. 1 H 7. chap. 20. and her heires may avoid it after his death Also he that hath an estate of lands given in taile by the King or by the provision of the King ought not to levy a fine of this land for it is void as against the issue in taile and the King Also he that hath an estate of lands that are prohibited to be sold by Act of Parliament ought not to levy a fine of such land Also she that hath an estate of lands of her husband or of any of his ancestors assured to her for her Jointure Dower or in taile by the meanes of her husband or any of his ancestors may not levy a fine of this land for if she grant a greater estate then for her own life this worketh a present forfeiture In the concords of Fines some things are to be regarded in the 5. In respect of the Concord and matters touching it And what concord or agreement may bee made by Fine or not West Symb. ubi supra Sect. 30. Co. 5 38. manner and forme and some things in the matter and substance First when a fine is levyed to divers Cognisees the right shall be limited to one of them As if a fine be levyed by A. to B. and C. it shall say Quod praedict ' A. recognoverit tenementa praedict ' esse jus ipsius B. ut ill'quae iidem B. et C. habent c. But the Kings tenant may acknowledge the right to be in divers Secondly the state shall be limited to his heires onely to whom the right is limited and not to the heires of all the cognisees as thus Quod praedict ' A. cognoverit tent ' praed c. esse jus ipsius B. ut ill quaeiidem B. C. habent de dono praedict ' A. ill'remisit quiete clam ' de se haered suis praefat ' B. et C. et haered ipsius B. c. The release and warrantie must be from the heirs of one of the Cognisors where there be more then one for in a fine from divers the fee is supposed to be in one onely And therefore it must be thus Quod praedict ' A. B. cogn ' ill'remisit c. de se et haered ipsius A. Et eidem A. et B. concesserunt pro sâ— et haered ipsius A. quod ipsi war ' tenementa c. si contra se et haereredes ipsius A. imperpetuum But if the fine be of lands in Gavel kind contra Fourthly the Concord need not to rehearse all the speciall names of the things contained in the writ but it is sufficient to say Tenementa praedicta as quod praedict ' recognoverit tenementa praedicta c. Fifthly as a Concord cannot be without an originall writ so it must pursue the originall writ and cannot be of any forain thing 1. such a thing as is not contained in the writ except it be consequent thereunto as when the writ is of land there may be in the concord of a rent out of this land but there may be more things in the Precipe then are named in the Concord And a Concord may be with an exception of some part but this exception must alwaies be of such things whereof the writ will lie and are mentioned therein must be certainly named must succeed the things out of which they be excepted as Precipe A. B. quod teneat C. D. convenâ— c. de manerio de D. cum pertineâ— in C. except uno messuagio duabus acris terrae et advocatione Ecclesiae de C. c. Et est concordia c. quod praed A. cogn ' tenementa praedict ' cum pertinen ' except praeexcept And in all these and such like cases as before where the concord is not formall the Judges ought not to receive the fine nor suffer it to passe but if they doe and the fine be finished it cannot afterwards be avoided by writ or error or otherwise for these faults The Concord and agreement may be made of an estate in fee simple See in West Symb. divers examples Perk. Sect. 629. Broo. Fines 108. fee taile for life or for yeeres it may be also of divers remainders and that to them that are no parties but strangers to the fine It may be also single or double with a render back again of some estate in the same land or some rent out of it so as a Concord may have in it a reservation of rent a clause of distresse or Nomine penae and a warrantie b Broo. Fines 106 118. Co. 6. 33. Plow 435. Dyer 279. Co. 1 76. And therefore if A. levy a fine to B. Sur cognisance de droit come ceo
right of the wife is saved so as she makes her claime c. within five years after her husbands death d Dier 354 So if husband and wife tenants in speciall taile have issue and the wife die and the husband marry another wife and have issue and levy a fine Sur cognisance de droit come ceo c. and take backe by the same fine an estate in speciall taile the remainder over c. and die the issue by the first wife is barred e Co. 3. 90. So if tenant in taile be disseised or make a feoffment in fee and after levie a fine with proclamations to the disseisor or to a stranger the issues in taile are hereby barred for ever the continuance of the possession in a nother notwithstanding f Co. super Lit. 372. So if a gift be made to the eldest sonne and the heires of his body the remainder to the father the heires of his body and the father dyeth and the eldest sonne levy a fine with proclamations and dyeth without issue this shall barre the second sonne for ever for the remainder descended to the eldest g Cûria trin 21 Jac. Co. E So if lands be given to an eldest sonne and the heires of the body of his father the father being then dead and he levy a fine of this land this will barre the younger brother h Dier 3. But if the issue in taile doe not make his title by him that did levy the fine there the fine will not barre and therefore if my father be tenant in taile and his brother disseise him and levy a fine and he and my father dye this fine shall not barre me as issue in taile because I doe not make my title to the land by him but if I suffer five years to passe and doe not make my claime c. by this meanes I may be barred by the fine i Plow 435. And if the fine be levied of another thing then the thing it selfe entailed As if the tenant in taile grant by fine a Rent Common or the like out of the land intailed this fine will not barre the issue So if a Rent be entailed and the tenant in taile of the Rent disseise the terre-tenant of the land out of which the rent doth issue and then levy a fine of the land this is no barre to the issue of the Rent 2. Albeit the fine be a double fine 2 Co. 76. 3. 85. super Lit. 353. Bio fines 118. Dier 279. with a grant and render yet it is within these Statutes and will barre the issue in taile as well as a single fine so as the grant and render be of the land it selfe and not of any profit apprender out of it And therefore if husband and wife be tenants in speciall taile and they levy a fine with proclamations and the Conusee grant and render the land to them and their heires this fine will barre the issue in taile And if tenant in taile joyne with I. S. and levy a fine to a stranger and the stranger doth grant and render the land againe to I. S. for years and to the tenant in taile in fee afterwards the issue in taile is barred by this fine So if there be tenant for life the Remainder in taile and he in remainder in taile accept of a fine from a stranger and grant and render to the stranger againe for years with a remainder over hereby the issue in taile is bound k Plow 435. If tenant in taile accept of a fine of the land entailed from a stranger and then grant and render a Rent out of the land to the stranger by the same fine this will not bind the issue in taile to pay the same Rent l Dier 117. If tenant in taile make a feoffement on Condition and die having two sisters inheritable to the taile and one of them levy a fine with proclamations sur Release to the feoffee of the whole in this case it is doubted whether the other sister be barred of her halfe or not 3. Albeit the tenant in 3 Co. 3. 86. 87. 1 in Shelleys Case taile die before all the proclamations be finished yet when they be finished as they may be after his death the issue in taile are bound by the fine for howsoever by the death of the tenant in taile the right of the estate taile doth descend to the issue yet when the proclamations are passed this right that doth descend is bound by the Statutes and the issue cannot by any claime c. save the right of the estate taile that doth descend unto him 4. Albeit the 4 Co. 3. 84. 91. issue in taile be within age out of the Realme under Coverture non compos mentis or in prison at the time of the fine levied and the proclamations passed yet the estate taile is barred by the fine And therefore if A. be tenant for life of land the remainder to B. in taile the reversion to B. and his heires expectant and B. levy a fine to C. and his heires and hath issue and die before all the proclamations are passed the issue in taile being then out of the Realme the proclamations are made and after the issue in taile cometh into the Realme and claimeth the remainder in taile upon the land in this case the estate taile is barred for ever 5. These Statutes doe extend to fines levied by tenant in taile by 5 Co. 3. 90. Dier 279. Plow 435. Conclusion and the issue shall be bound by the fine of their Ancestor unto whom they are privy in estate and bloud albeit partes finis nihil habuerunt tempore finis And therefore if the issue in taile in the life of his Ancestor when he hath onely a possibility As if there be grandfather father and sonne and the grandfather be tenant in taile and the father levy a fine of the land before the grandfathers death and then the grandfather dye before the father and after the father dye in this case the issue is barred by this fine †Curia Trin 21. Jac. Com. B. Godfry Wades case Dier 48. so also if the grandfather survive the father But in case of a collaterall descent if the collaterall Ancestor die in the life time of his father without issue this fine is no barre but if he survive his father contra So if lands be given to the grandfather and his wife in speciall taile and the grandfather dieth and the father doth disseise the grandmother and doth levy a fine with proclamations the grandmother dieth and then the father dieth in this case the sonne is barred m Co. 3. 50 51. 9. 140. So if lands be conveyed in taile to a woman for her Jointure within the Statute of 11 H. 7. cap. 20. and whiles shee liveth the issue in taile doth levy a fine of the land by this the issues inheritable to the estate taile are barred for ever
not intended within but excepted out of the Statute of 32 H. 8. but the King himselfe being tenant in taile of the gift of some of his Ancestors being subjects may levie a fine of it to barre his issues in taile And in all cases where a recovery will not barre the issues in taile there a fine will not barre them Albeit the fine of the husband and wife together of the wives Dyer 72. Plow 373. 2 Wife barred by the fine of her husband or some other land or of the land of the husband and wife together be a perpetuall barre to her and her heires for ever yet if the husband alone levie a fine with Proclamations of such land and then he die in this case shee is not barred of her right but if she doe not make her claime c. within five yeares after her husbands death she is barred of her right for ever notwithstanding the Statute of 32 H. 8. a M. 18. Jac. Co. B. in Anne Twists case And if one seised of land in fee mary a wife and after make a lease of this land to A. for life the remainder to B. in fee and B levie a fine with Proclamations and the husband die and the wife doe not make her claime c. within five years after the death of her husband hereby she is barred of her dower for ever notwithstanding the estate for life in A. but if the remainder of B. had been put to a right at the time of the fine levied she might have avoided the fine by Plea Quod partes finis nihil habuerunt c. b Dyer 224. Co. 2. 93. And if the husband levy a fine of his owne land and die and his widow having no impediment doth not make her claime within five yeares after his death hereby she is barred of her dower for ever c Dyer 358. If a jointure be made to a woman after the coverture and her husband and she levie a fine of it hereby without question she is barred of her jointure in this land but it is thought that this is no barre of her dower in the residue of the land of the husband and especially then when the fine is Sur conusance de droit come ceo c. d Dyer 351. If lands be given to a man and his wife in taile the remainder to the right heires of the husband and the husband alone levie a fine of this this will not barre the wife except she suffer five years to passe after his death without making claime c. and therefore if the fine be to the use of the husband and his heirs in fee he may dispose it as a fee simple and his issue hath no remedy If a man disseise me of the land I have in fee simple or fee taile 3. Disseisee and the like barred by the fine of the disseisor c. Co. 9. 105. 3. 87. super Lit. 298. and after levie a fine of this land with Proclamations and I doe not make my claime c. within five years after the Proclamations had hereby I and my heires are barred for ever of this land And if I being such a tenant in fee make a lease for years or be the Lord of any Copyhold estate and my lessee for yeares or Copyholder in fee or for life be ousted and I thereby disseised and the disseisor levie a fine and neither I nor my lessee for yeares or Copyholder doe make any claime c. within the five years after the fine levied hereby we are all barred for ever And if one disseise me of land and after make a lease for life of it and then levie a fine with Proclamations and I suffer five yeares to passe hereby I am barred both of the reversion and of the estate for life also If tenant for life make a feoffment in fee and the feoffee levie Plow in Stowels case a fine with Proclamations and he in reversion or remainder doe not make his claime c. within five years hereby he is barred for ever If I pretend right or title to land and enter upon it and put him Co. 3. 79. out that is in possession and then I levie a fine with Proclamations with an intent to barre him and he doth not make his claime c. within five years hereby he is barred for ever albeit he had the true right and I no right at all If I purchase land of H. and after perceiving my title defeasible and that a stranger hath the right of the land I doe levie a fine Co. 3. 79. Doct. St. 83. 155. to or take a fine from another with Proclamations with intent and of purpose to barre him that hath right and he suffer five yeares to passe and doth not make his claime c. hereby hee is barred of his right for ever And in these and such like cases there is no reliefe Equitie to be had in equity See more in Numb 11. infra If there be tenant in taile the remainder in taile and the tenant 9. Where a Fine shall be a barre as to one person and not to another or as to one part of the land and not to another Co. 10. 95. 9. 106. in taile bargaine and sell the land by deed indented and inrolled and after levie a fine with Proclamations to the bargainee Sur Conusance de droit come ceo c. in this case as to the tenant in taile and his issue this is a barre but as to all others it is no barre albeit they never make any claime c. So if tenant in taile levie a fine of his intailed land this is a barre as to him and his issues but as to all others it is no barre at all and therefore he in remainder or reversion in their times may enter notwithstanding e Co. 9. 140. 142. So if lands be entailed to the husband and wife and the heires of their two bodies and the husband alone levie a fine of this land this as to the husband tenant in taile and his issues is a barre but not as to the wife for she shall be tenant in taile still and yet it seems she may not suffer Recoverie a recovery of this land afterward So if a man attainted of felony or treason levie a fine of his land this as to the King and Lord of whom the land is held is void and is no barre to their advantage and title of forfeiture but as to all others it is a good barre f 7 H. 4. 44. F. N. B. 98. Plow So if one levie a fine of Lands in Ancient demesne and of other lands together this as to the lands in Ancient demesne is not good nor any barre at all but as to the other lands it is a good barre By the ancient common law he that had right was bound to Co. super Lit. 254. 262 make claime c.
the husband alone doth discontinue the whole land by fine feoffement or bargaine and sale by deed indented and inrolled and the writ of entrie is brought against the discontinuee and he doth vouch the husband alone without the wife and the husband doth vouch the common vouchee and so a recovery is had this is a good recovery for the whole land and a barre to all the estates in tail and remainder and reversion but not to the estate of the wife for her life after the husbands death But if lands be given to the husband and wife and the heires of their two bodies with remainders over to strangers and the husband alone discontinue and the recovery is suffered as in the last case it seemes this is no barre to the estates in taile or remainder or reversion for any part of the land And yet if lands be given to I S and I D in taile and I S discontinue the whole and the writ of entry is brought against the discontinuee and he vouch I S alone this is a good recovery for the one halfe of the land and a barre to all the estates And if lands be given Husband and wife as before to husband and wife and the heires of their two bodies and the writ of entry is brought against them both and they vouch the common vouchee or the husband alone doth discontinue and the writ is brought against the discontinuee and he vouch the husband and wife both and they enter into the warranty and vouch the common vouchee and so the recoverie is had these are good recoveries for the whole and a barre to all the estates in taile and to the estate of the woman and to all other estates And where Lit. Bro. 37. lands are given to a man and his wife and the heires of the body of the wife or to the wife and the heires of her body and the writ of entry is brought against the husband and wife and they vouch the common vouchee these are good recoveries and will barre the husbands and wives and the estates in taile remainder and reversion And where a man hath land in which his wife hath a Jointure Plow 514. or to which shee will have title of dower after his death if the writ of entry in this case be brought against them both they vouch the common vouchee and so a recovery is had this recovery will barre them both But the husband alone without her cannot barre her of any such estate by a recovery for she may falsifie and avoid it after his death And if lands be given to husband and wife and the Co. 3. 5. 1. 12 Ed. 4. 14. heires of the body of the husband and the writ of entry is brought against the husband alone and he vouch the common vouchee and so a recovery is had with a single voucher this is no good recovery for any part of the land nor barre to any of the estates albeit the husband doe survive the wife And yet if lands be given to two Co. 3. 6. others and the heires of the body of one of them the remainder over to to a stranger and the writ of entry is brought against one of them and he vouch the common vouchee and so a recovery is had this is a good recovery and a barre to all the estates for the one halfe of the land If lands be given to A in taile the remainder to B in taile the remainder to C in taile the remainder to D in fee and A doth make a feoffement in fee and the writ of entry is brought against the feoffee and he doth vouch B being him in the second remainder in taile to warranty and he doth vouch the common vouchee this is a good recovery and a barre to the second estate taile and all the remainders and reversion depending thereupon And yet it is no barre of the first estate taile which A Curâ—a Mich. 18 Jac. B. R. So was it held by most of the Judges in the case betweene Pell Browne hath If the writ of entry be brought against a Mortgagee and he doth vouch the common vouchee and so a recovery is had this is no good recovery to barre or bind the Mortgagor but that he may enter upon the condition broken So if one give lands to B and his heires so long as C shall have heires of his body and B doth suffer a common recovery and vouch the common vouchee this is no good recovery to barre the donor of the possibility for in both these cases he that is to be barred hath no remainder or reversion but an interest or possibility which cannot receive a recompence in value But if in these cases the mortgagee vouch to warranty the mortgagor or B the donee vouch the donor and so they vouch over the common vouchee and so the recovery is had these will be good recoveries to barre both them and their heirs for ever And if one have an estate in fee simple determinable on a Limitation or a Condition as if lands be given to A and his heires untill B pay to him 100 l. and then that it shall remaine to B and his heires and A in this case doth suffer a common recovery and vouch the common vouchee it seemes this is no barre to B and his heires but that upon payment of the 100 l. he shall have the land So if one by his will devise his land thus I give unto A my sonne and his heires for ever my land in W paying 20 l. to B when A shall come to 21 years of age and then that A and his heirs shall have it for ever and if A shall dye without heires of his body C being then living that then C shall have it to him and his heires for ever and A pay the 20 l. to B at his full age and then suffer a recovery of the land this is no barre to C of his estate But here it muâ—t be Co. 3. 5. noted that in the cases before where it is said that a recovery is void it is meant as to the heires and them in reversion and remainder for as to the parties themselves that doe suffer the recovery the same is for the most part good and doth bind them by way of Estoppell and conclusion And it must be noted also that a stranger that hath right to the land at the time of the recovery suffered is not barred at all by the recovery or by his lachess of non-claime c. as in the case of a fine The recoverors in common recoveries their heirs and assignes Stat. 7 H. 8. cap. 4. Dier 31. Co. super Lit. 104. 6. The remedy of Recoverors against the Lessees for Rents and services and upon wast done shall have the like remedy against lessees for lives and years of the land recovered their Executors or Assignes by distresse avowry or action of debt for the rents and
then the 500l the interest and the 200l is cast together and so we agree upon an Annuity of 80l per annum for fourteene years which is assured by Conveyances unto me in this case the contract is usurious and all the assurances made to perfect it are void And yet regularly where the principall mony is lost Curia Hil. 14. Ja. B. R. Sanders case the contract is not usurious If a man desire to borrow of me 100l for a yeare and I am content to let him have it for the use of 8l but withall I compell him to take a lease of me of a house at 60l rent which in truth is worth but 30l this contract is usurious and therefore the assurances thereupon made void Et sic de similibus But if a man the 17th of July 1579. grant me a rent of 20l. per Co. 5. 69. annum for the loane of 100l to be paid every halfe yeare and the first payment at Christmasse 1580. and it is agreed between us that if he pay the 100l the 17th of Iuly 1580. that then the rent shall cease this contract is not usurious and therefore the assurances thereupon made are not void but good But if in this case there be a private or collaterall agreement between us that he shall not pay the 100l and redeem the rent and that clause be put in only to evade the Statute then is the contract usurious notwithstanding and the deeds and assurances thereof void Et sic de similibus If one borrow 100l after the rate of 8l per centum and Hill 7. Jac. B. R. Curia the borrower do afterwards pay part of the principall and all the use within the yeare and the lender doth receive it or the lender doth sue for his mony within the yeare these subsequent acts do not make the contract or deeds or assurances thereof void for it is a rule that if the originall contract be not usurious no matter ex post facto can make it so If one borrow of me 10l and bind himselfe Bro. Obligation 79. to pay me by a day and moreover bind himselfe that if he pay it not by the day that he shall pay me 20l. for it this contract and the deed for perfection of it are good for this is not usurious for all Obligations with conditions for payment of mony lent are of this nature And yet if one borrow 100l of me and for this mortgage land to me of a greater value then 8l per annum on condition that if he pay the mony at any time before the years end then the assurance to be void this should seem to be an usurious contract for in this case I am sure to have by the agreement more then after the rate of 8l per centum and so it is not in the last case before If one borrow 100l for a yeare and give the Broker 20l. Per. â—ust Brigman Hil. 7. Car. to procure it this will not make the contract usurious nor the assurances void but for this the Broker may be punished Also all Obligations made to a Sheriffe contrary to the Statute Obligations made to a Sherriffe contrary to the statute Collusion in â—raudulent convâ—yances 1. To deceive purchasors of 23 H. 6. ch 10. are void or at least voidable by pleading But of this see in Obligations infra A deed also made containing Stat. 27 El. ch 4. Co. super Lit. 3. stat 39 El. â—h 18. the Grant of any thing with intent and of purpose to deceive and defraud one that shall afterwards buy the same thing is void For it is to this purpose provided by a Statute Law That all fraudulent conveyances of land or any rent or proâ—it out of land made by whomsoever with intent to deceive or defeate any that shall purchase the land or any rent or profit out of it for mony or other good consideration of the fruit and effect of their purchase shal be void against such purchasors for so much as they buy and against all others that come in by or under them But all such conveyances as are made bonâ fide and upon good consideration are not to be accounted fraudulent For the better understanding of which Statute and the Law in these cases observe That conveyances bonâ fide are opposed to such as are upon and with any trust expresse or implied And good considerations are set down in the Statute to distinguish from such as are not valuable as nature bloud and the like If one convey land with a present or future power of revocation or alteration at his will that doth convey it this shall be said a fraudulent conveyance as against him that shall afterwards purchase this land So that if one convey his land to the use of himselfe for life and after to the use of divers of his bloud with a future power as after the death of H or after such a day to revoke it and before the Co. 3. 82. 83. day he sell this land to a stranger for a valuable consideration in this case the first deed shall be said to be fraudulent and void as to him that shall purchase the land to doe him any hurt And if one convey land with such a power of revocation and after with an intent to defraud a purchasor make a feoffment to a stranger to extinct the power and after sell the land for valuable considerations to a stranger in this case both the first and the second deed as to the purchasor shall be said to be fraudulent and therefore void And if there be grandfather father and son and the grandfather makes Co. 6. 72. a lease for 100. years to the father and the father to prevent the drowning of the lease by the descent of the reversion to him doth assigne over the lease to certaine friends of his to the use of his son an infant under pretence to pay debts the grandfather dieth the father doth continue the occupation of the land and maketh estates and doth all acts as owner of the land the sonne payeth no debts and the assignement albeit divers persons of quality were named assignes was delivered to one of the assignes of meane estate in private and after the father doth sell the land for valuable consideration in this case this assignment shall be taken to be fraudulent and void as to the purchasor And if the father make a fraudulent conveyance and after continue the occupation of the land and it descend to the sonne after the fathers death and he sell it for valuable consideration in this case the purchasor may avoid the conveyance made by the father as well as if it had been made by the sonne himselfe and that whether the sonne be privie to the conveyance made by his father or not And if the fraudulent conveyance bee made to the King yet it is void as to a purchasor as if it were made to a common person And
body or the or his heires females of his body by this the grantee hath an estate taile So if ands be given to a man to have and to hold to him and the heires males or to him and the heires females of his body begotten in both these cases it is an estate tail If lands be given to a man his his wife to have and to hold to them Lit. idem Co. 1. 140. Co. super Lit. 20. Co. 7. 41. and the heires males or to them and the heires females of their two bodies begotten by this they both have an estate taile And if lands be given to them the heires males or heires females of the body of the husband begotten on the wife by this he hath an estate taile his wife an estate for life only And if lands be given to A to have and to hold to him and his heires on the body of B begotten by this A hath an estate taile and B hath nothing So if lands be given to a man and his wife to have and to hold unto them and the heires he shall beget on her body by this they have an estate taile in them both If lands be given to a man and his wife and the heirs of the body of the husband by this the husband hath an estate in generall taile and the wife but an estate for life If lands be given to him to have and to hold to him and his heires he shall beget on the body of his wife by this he hath an estate taile and she no estate at all If one give his land to his daughter or Cousin in Frankmariage Lit. Sect. 17. by this they have each of them an estate taile without any word of heires or heires of body c. If one give lands to B and his heires to have and to hold to B Co. super Lit. 21. Co. 7. 41. 5 H. 5 6. and his heires if B have heires of his body and if he die without heires of his body that it shall revert to the donor by this B hath an estate taile So if one give lands to B and his heires if he have issue of his body by this he hath an estate taile So if lands be given to B to have and to hold to him and his heires provided that if he die without heire of his body that the land shall revert So if lands be given to A B uxori ejus hered eorum aliis hered ipsius A si dict'hered de dict' A B exeunt ' obierunt sine herede de se c. by this they have an estate taile And so in all such like cases where after a limitation of a feesimple these or such like words are added viz. that if he die without heires of his body the land shall revert for in all these cases the habendum is construed to be a limitation or declaration what heires are meant before If lands be given to A and B a young man and maid unmaried to have and to hold to them and the heires of their two bodies Co. super Lit. 26. Plow 135. by this each of them hath an estate taile and if they mary their heires may inherite it If lands bee given to the sonne to have and to hold to him and Co. super Lit. 7. Co. 8. 87. Ass Pl. 47. 5 Ass 14. his heires of the body of his Father by this the sonne hath a fee-simple But if the words bee to have and to hold to him and the heires of the body of the Father engendred by this it is an estate taile in a deed as it is in a Will And if the Father be dead the Law Will. is so also but it seems the sonne shall have by this only an estate for life except he be issue in taile to his father per formam doni So if there bee grandfather father and sonne and the father dieth and lands be given to the son to have and to hold to him and the heires of the body of the grandfather this is an estate taile in the sonne but neither the father nor the grandfather have either of them any estate in these cases If lands be given to I S and the heires of the 12 H. 4. 1. body of his wife being dead begotten by this I S hath an estate taile If one grant lands to I S to have and to hold to him and the Co. super Lit. 385. heires of his body issuing the remainder to I D and his heires in forma predicta by this I S and I D after him have each of them an estate taile If one grant lands to A to have and to hold to him for life the Co. 2. 91 super Lit. 22. 39. Ass Plow 20. remainder to the first sonne of A and the heires males of the body of that first sonne by this the first sonne hath an estate in taile and A his father but an estate for life only But if lands be granted to A for life the remainder to the heires of the body of A by this A hath an estate taile in him And if lands be given to a man and his wife to have and to hold to them and one heire of their bodies lawfully begotten and to one heire of the body of that heire by this there is an estate taile made yet so as it shall last only during the lives of those two heires If one grant lands to another to have and to hold to him and to Co. super Lit. 26. his heires of the body of such a woman lawfully begotten by this he shall have an estate taile for begotten shall be intended by the donee on that woman If there be husband and wife and they have issue a sonne and Co. super Lit. 26. daughter and lands are given to the wife to have and to hold to her and the heires of her late husband on her body begotten by this the wife hath an estate for life and the son an estate in taile and if he die without issue it shall goe to his daughter per formam doni If lands be granted to the husband of A and wife of B to have Co. super Lit. 20. and to hold to them and the heires of their two bodies by this they have each of them an estate in taile in them for there is a possibility that one husband and wife may dye and then the other husband and wife may intermary If there be father and sonne and lands are given to the father 12 H. 4. 3. Dyer 247. to have and to hold to him and the heires of the body of his son by this the sonne hath an estate taile but the father as it seemes but an estate for life If lands be given to the mother for life the remainder to her son Lit. Sect. 352. and the heires of the body of his father on her begotten the father being dead by this the son
any estate in this case I S hath an estate for life only If lands be granted to A and B to have and to hold to them Dier 186. for their lives to the use of C for his life by this C hath an estate for his life if A and B live so long If a tenant in taile grant totum statum suum by this the grantee Lit. Sect. 613. Co. 1. 53. super Lit. 345. Plow 562. 162. Co. super Lit. 24. hath an estate for the life of the grantor and no longer And if a lessee for life grant all his estate hereby his estate for life doth passe for this is as much as he can lawfully grant If a man have a sonne and a daughter and die and lands be granted to the daughter and the heires females of the body of the father it seemes by this she hath only an estate for life If one grant land to another to have and to hold to her whiles Co. super Lit. 42. 234 235. she shall live sole or during her widowhood or so long as she shall behave her selfe well or so long as he shall dwell in such a house or so long as she pay 10 l. yearly or so long as the coverture between her and her husband shall continue or one grant lands to a man to have and to hold unto him untill he shall be promoted to a Benefice or the like in all these cases if livery of seisin be made according to the deed or if the grant be of such a thing whereof no livery is requisite the grantee hath an estate for his life and no more and that determinable also If one grant lands to I S. to have and to hold to him for life Co. super Lit. 183. 42. Plow 161. F. N. B. 168. and doth not say for whose life this regularly shall be taken for the life of I S the lessee and not for the life of the lessor But if the lessor himselfe have but an estate for life in the lands granted then the lease shall be construed to be and endure during that life only by which the lessor did hold to prevent a forfeiture And if he that doth make the lease be tenant in taile of the land this shall be taken to be a lease for the life of the lessor And if a tenant for life of land make a lease for years of it and then grant his reversion by the name of a reversion to another To have and to hold to him and his heires by this he hath only an estate for the life of the grantor and no more So if tenant in taile of land grant it to one for years and after grant his reversion to another To have and to hold to him and his heires this shall be construed to be an estate for the life of the tenant in taile and no longer and the atturnement of the tenants in these cases will not alter the cases And so it is in case of a Release also as if tenant in taile doth release to B being lessee for years of the land all his right to the land this shall be taken to enure but for the life of the tenant in taile and no longer as if a man retaine a servant and say not how long this shall be taken for a year Constructio legis non facit injuriam If one grant to I S that if he be not paid yearly for his life Co. super Lit. 147. Co. 8. 85. 40 s. that he shall distraine in the land of the grantor for it by this I S hath an estate for life in the rent And if a man by his deed grant a rent of 10 l. issuing out of all his land quarterly at the usuall feasts this is an estate for life of the grantee If one grant lands to I S and I D. To have and to hold to them Co. 5. 9. 11. 3. during their lives omitting these words and the longest liver of them by this notwithstanding they shall hold it during the life of the longest liver of them And if lands be granted to A To have and to hold to him during the lives of B C and D without any more words by this A hath an estate during all their lives and during the life of the longest liver of them * 38 Eliz. B. R. in the case of Ros Adwick And if lands be granted to A To have and to hold to him during his life and during the lives of B and C by this he hath a lease for his owne life and the lives of B and C and the longest liver of them But if a lease be made to I S of land to have and to hold to him during the time that A and B shall be Justices of Peace or during the time that A and B shall be of the Inner Temple or the like in these cases the â—ailer of one doth determine the estate †Adjudged B. R. 8 Eliz. Hobaâ—t Wisemores case And if a lease be made to B only To have and to hold to him and C for their lives by this B hath an estate for his owne life only and no more and C hath nothing at all And here by the way let it be observed in these and such like cases where lands are granted to one man to Co. super Lit. 41. 239. 388. Plow 556. 28. Dier 328. 321. 264. Co. 10. 98. Occupant have and to hold to him or to him and his assignes or to him his executors administrators and assignes during the life or during the lives of others and in most cases where a man is tenant pur auter vie i. for the life or lives of another or others if the tenant pur auter vie in possession die his estate shall not goe to his heires executors or administrators unlesse they can first get into possession after his death but he that can first get into the possession of the land after the death of the tenant pur auter vie shall have it for his life and after his death then he that can first get into the possession againe c. And therefore if the land were let by the tenant pur auter vie at the time of his death to any under tenant for years or for one year or at will and this undertenant be in possession at the time of the death of the tenant pur auter vie this undertenant shall have it for his life if the life or lives by which it is held so long live for the rule in this case is occupanti conceditur Et capiat qui capere potest And this estate is called an occupancy and he that hath it an occupant To prevent which mischiefe the lessee must take care when he takes his lease to have it made to him and his heires during the life or lives of him or them by whom it is held for in this case after his death his heire and none other shall
rent out of the land generally without any limitation this shall be construed to enure for a grant of the rent so long as the estate of the grantor doth continue But if he grant a rent by expresse words for the life of the grantee by this the grantee shall have it for all the terme if he live so long If one grant lands to I S To have and to hold to him for life Co. super Lit. 218. reserving the first seven years a rose and if he will hold the land over that he shall pay a rent in money and no livery of seisin is made by this it seemes in certaine is made a lease for seven years untill the Condition be performed and then also it seemes it is a lease for no longer time And so perhaps it will be if livery of seisin be made If one grant a rent of 5 l. per annum unto I S To have and to Co. super Lit. 42. Plow 273. hold to him c. untill he shall receive 20 l. in this case he shall have a lease for foure years of this rent But if lands be granted to I S To have and to hold c. untill he shall receive 20 l. out of the profits of it in this case if livery of seisin be made the grantee hath an estate determinable upon the levying of the money and if no livery be made he hath no estate at all but at will If one make a lease for life and say that if the lessee within one Co. super Lit. 218. yeare pay not 20 s. that he shall have but a term for 2. years by this if he doth not pay the money he hath only a lease for 2. years albeit livery of seisin be made upon it If one make a lease to I S To have and to hold to him his executors Co. 9. 63. 60. c. for 10. years if I D shall live so long and I D is dead at the time when the lease is made in this case I S hath an absolute lease for 10. years If one grant lands to I S To have and to hold to him his executors Plow 273. Co. super Lit. 45. Dier 24. c. for 3. years and so from 3. years to 3. years during the life of I S or from 3. years to 3. years during the life of the lessee by this it seemes I S hath a lease for 6. years and no more And if one grant lands to I S To hold for 3. years and after the end of those 3. years for 3. other years and after the end of those 3. years for 3. other years during the life of the lessor by this it seemes I S hath a lease for 9. years and no more And yet if in these and such like cases where a lease is made from so many years to so many for the life of any person livery of seisin be made upon this deed secundum formam chartae this perhaps may be an estate for life If lands be granted To have and to hold from our Lady day pro termino unius Anni sic de uno Anno in unum Annum quamdiu 14 H. 8. 10. Co. 6. 35. 10. 106. ambabus partibus placuerit by this the grantee hath a lease for 3. years only in certain and afterwards a lease at will And if lands be granted to have and to hold from the Nativity of Christ next pro termino unius Anni et si in fine dict' unius Anni ambae partes placerent quod eadem presens dimissio foret renovata tunc habend premissa to the lessee c. ab post dictum festum Nativitatis Domini usque terminum trium Annorum extunc prox ' sequen ' by this the grantee hath a lease in certaine but for one year only and if the parties agree againe a lease for 3. years If one make a lease to I S To have and to hold to him for years Co. 6. 35. 21. H. 7. 38. and say not how many years by this the lessee hath a lease for 2. years and no more If one grant his land to I S To have and to hold to him untill Co. 3. 19. I D shall come to 21. years of age in this case if I D die before that time the lease is ended If a man possessed of a terme of years of land doth grant the land to another and his heirs this by construction will amoumt Co. 1. 44. 7 H. 4. 42. to a good grant of his interest If lands be granted to husband and wife and to I S To have Limitation of estates to divers persons Dier 263. and to hold to them and to the heires of the husband and I S by this the wife hath only an estate for life in a moity w th her husband and the husband and I S have the feesimple in Jointenancy to them and their heires Co. 8. 87. 10. 50. super Lit. â—5 Dier 145. If lands be granted to two brothers or two Sisters or to a brother or sister or to a father and sonne or any others To have and to hold to them and the heires of their bodies begotten by this they have joint estates for their lives so that the survivor of them will have the whole for his life and severall inheritances i. estates in generall taile by moities in common one with another And if lands be granted to two men and their wives and the heires of their bodies begotten in this case they have joint estates for life and afterwards the one husband and wife shall have the one moity and the other the other moity in common And and if lands be granted to a man and two women To have and to hold to them and the heires of their bodies by this they have each of them an estate taile in common with the other If lands be granted to husband and wife To have and to hold Lit. Sect. 27 28 29. Co. super Lit. 26. Dier 340. Co. 1. 100. to them and their heirs of their bodies issuing or in any such like manner by this the wife hath an estate taile as farre forth as the husband But if it be granted to them To have and to hold to them and the heires of the body of the husband or to the husband and wife and the heires of the husband which he shall have by his wife or in any such like manner by this the wife hath only an estate for life and the whole estate taile is in the husband So via versa if lands be granted to husband and wife and the heires of the wife upon her body begotten by the husband by this he hath an estate for his life only and his wife the whole estate taile And if lands be granted to the husband To have and to hold to him and the heires of his body on the body of his wife begotten or To have and to hold to him and
in Testaments Numb 8. Grant Numb 4. Leases cap. 14. Numb 4. And here note that parol-agreements and conveyances Note have the same construction for the most part made upon them as are made before upon deeds And therefore if a man by word of mouth without any writing grant all his lands in Dale to I S To have and to hold to him for life but doth not say for whose life this shall have the same construction as such a grant made in writing hath This is alwaies taken most in advantage of the feoffee grantee Co. 5. 111. 10. 106. 8. 71 Co. super Lit. 47. 213 214. lessee c. and against the feoffor grantor lessor c. and yet so as In the reservation of rent And how that shall be taken the rent be paid during the time And therefore if the reservation be only to the feoffor grantor c. and the deed doe not say also to his heires executors c. this reservation shall continue only for the life time of the grantor and shall determine with his death And so also it is where the reservation is to the feoffor or his heires in the disjunctive for in this case the rent shall continue only during the life of the grantor And yet if one make a lease for years rendring yearly during the said terme to the lessor or his heirs or executors this is a good reservation during all the terme by reason of these words during the terme So if the feoffor or lessor be seised in fee and make a feoffement in fee or lease for life or years rendring rent to the feoffor or lessor or his executors or assignes in Plow 171. 21 H. 7. 25. 27 H. 8. 19. Dier 45. this case the rent shall continue only for the life of the lessor But if the reservation be to the feoffor or lessor his heires and assignes in the copulative or in the disjunctive to him or his heires or to him and his successors if it be the lease of a Corporation during the terme then all the assignees of the reversion shall enjoy it And if the reservation be thus yeelding and paying so much rent without any more words this shall be taken for all the time of the estate and shall goe to him in reversion accordingly And if the reservation be rendring so much rent during the said terme and doth not say to whom in this case it shall be construed to be to him that hath the reversion and accordingly it shall be paid and shall continue during the term * So held in the case of Bland M. 8 Car. B. R. But if A be seised of land in fee and make a lease for years of it rendring rent to A without saying To his heires c. during the said terme this rent shall continue only during the life of A and no longer And yet if A be possessed of a terme only and make an under-lease or assignement with such a reservation Quere If the reservation be thus Yeelding and paying 20 s. during the said 27 H. 8. 19. terme omiting the word yearly this shall be taken to be not once only but yearly during the terme and accordingly it must be paid f Pas 21 Jac. Hudson Brent B. R. And if a lease be made for years rendring in every middle of the yeare quolibet medio Anni 20l. this shall be paid during the term If one by deed indented grant lands to A To have and to hold Co. 10. 107. to him for life the remainder to B and the heires of his body and for default of such issue to remaine to D in taile or for life yeelding therefore yearly c. in this case the reservation shall extend to all the estates If a lease be made the 10th day of August rendring rent at our Dier 130. Co. 5. 111. super Lit. 217. Lady day and Michaelmas in this case albeit our Lady day be first named yet the first payment shall be at Michaelmas next after the making of the deed If the reservation be at Michaelmas or within 20 daies after in Per Williams Yelverton Iust Ch. Iust contra 9 Jac. B. R. this case the 20th day shall be taken exclusive But if the rent be to paid at Michaelmas or by the space of 20. daies after in this case the 20th day shall be taken inclusive If a lease be made in December from the Nativity of Christ next for one yeare with this addition Et si in fine dicti Anni ambae partes Co. 10. 106. agrearent quod eadem dimissio foret renovata tunc habend tenend premissa dicto I S the lessee ab post dictum festum tunc proxim sequend usque finem trium Annorum Reddendo inde Annuatim durante dicto termino dict W S. c. in this case the reservation shall relate to both the terms and the rent shall be paid the first yeare although they doe not agree to renew the lease If two Jointenants by deed poll or by word make a lease for Co. super Lit. 214. life reserving a rent to one of them this shall goe to them both So if one of them be tenant for life and the other in fee and they joine in a lease for life or gift in taile reserving a rent the rent shall enure to them both But if tenant for life and he in reversion joine in a lease for life or gift in taile by deed reserving a rent the rent shall enure to the tenant for life only during his life and after to him in reversion If two tenants in common make a lease of their land rendring Plow 171. 289. Co. 10. 106. 20 s. rent this shall be but one 20 s. and not two 20 s. So if the lease be rendring a Hawke or a Horse by this they shall have but one Hawke and one Horse and not two Hawkes or two Horses as it shall be in cases where they doe joine in the grant of such things out of their land If one make a gift in taile of two acres of land the one at the Co. 10. 106. cōmon law the other in Burrow English rendring an oxe to him and his heires and the donee having two sonnes die and the eldest sonne doth inherite the one acre and the youngest sonne doth inherite the other in this case the donor and his heires shall have but one oxe c. If one make a lease of land for years if the lessee live so long Co. 10. 107 108. and after the lessor by his deed indented doth grant the land to another To have and to hold the reversion to the grantee for his life cum post mortem c. aut aliter acciderit vacare reddend inde Annuatim to the grantor and his heires cum reversio predicta acciderit 9 s. 4 d. per Annum in this case this reservation of rent shall not begin before the reversion
use of B and his heires on condition that B shall pay to the feoffor twenty pound such a day this is a good condition So if one covenant to stand seised of lands to the use of B and his heirs on condition that if he pay him tenne pound the use shall be void or the like Also a condition may be Dier 1â—6 348. annexed to an estate created by Will as if one devise land to I S for his life Provided that he pay ten pound yearly to I D this is a good condition Whereof see in Testament A rent or any such like thing may be granted on condition that Co. 8. 17. 24 â—d 3. 29. if such a thing bee or bee not done the rent shall cease for a time and then revive again and this condition is good But in case of land it is otherwise for that cannot bee granted after this manner Also a condition to make an estate void for a part of the time is not good And therefore if a feoffment bee on condition that upon Co. 1. 86. Perk. Sect. 718. Co. 4. 121. Dier 6 such a contingent the feoffor shall enter and have the land for a time or the estate shall be void for a part of the time or make a lease for ten years provided that upon such a contingent it shall be void for five years these conditions are not good And yet if a feoffment bee made of two acres provided that upon such a contingent the estate shall bee void as to one acre onely this is a good condition A condition that a stranger or the heir of the feoffor shall doe Co. super Litt. 214. Doct. Stud. 94. 159. 100. Co. super Litt. 379. Co. 1. 84. Dier 33. 21 H. 7. 11. Dier 4. Co. 8. 95. an act is good as if a feoffment be made to I S on condition that I D shall pay to the feoffor ten pound at Easter next or if a feoffment be made on condition that if the heir of the feoffor pay twenty shillings to the feoffee that the feoffor and his heirs shall reenter But a condition to give a stranger a reentry is void so farre forth And therefore if an estate bee made upon condition that upon such a contingent a stranger shall enter or the estate shall cease and another shall have it howsoever this may be so drawne as it may be a good condition to give him his heirs c. that doth make the estate an entry yet it cannot be good to give the estate or the entry to the stranger So if a feoffment be made on condition that upon such a contingent the feoffor and a stranger shall enter this is not good to give an entry to the stranger but it is good to give the feoffor a reentry And yet by will a man may devise a terme after this manner If a man enfeoffe another upon condition that he and his heires Co. super Litt. 213. shall render to a stranger and his heires a yearely rent of twenty shillings c. and if hee faile of payment thereof that the feoffor shall reenter albeit this as a reservation of rent is meerely void and the condition that doth call it a rent is meerly mistaken yet the condition is good and ut res valeat the words shall be taken contrary to their proper sense If I enfeoffe I S of land on condition that if I D give to him ten Perk. Sect. 798. pound or goe to Rome before such a day c. that then the feoffee shall pay to me ten pound c. this is a good condition If a feoffment be made to one and his heirs on condition that if Co. super Litt. 207. the feoffee pay to the feoffor ten pound hee shall have the fee of land this is not a good condition But if he say further And if he fail to pay that the feoffor shall reenter this is good If a gift in tail be made to a man and the heirs of his body and Co. super Litt. 224. if he die without heirs of his body that then the donor and his heirs shall reenter this is a void condition for when the issues fail the estate is at an end Conditions that are so penned as they are insensible and altogether Muddy Gardners case Adjudge pasche 14. Jac. B. R. Co. 6. 41. incertain are void as if one make a lease on condition that if the rent be behinde to restrain and if there bee not sufficient the ground to enter into the premisses this condition is void for insensibility and the estate is absolute Et sic de similibus A condition to enlarge or encrease an estate may be good as if Co. 8. 75. Plow 477. 481. Litt. Sect. 350. Perk. Sect. 710. Plow 135. 10 Ass pl. 15. Perk. Sect. 745. 707. Plow 25. Litt. Sect. 707. 350. Plow 272 482 483. 4 H. 7. 4. See more in the Lord Staffords case Co. 8. 73. To enlarge an estate a gift be made in tail or a lease be made for life or years on condition that if such an act be done or not done the lessee shall have the land to him and his heirs as if one make a lease for life to one and if the lessor die without heir of his body then he doth grant the land to the lessee and his heirs for ever Or if land be granted to a man for 5 years on condition that if the grantee pay to the grantor within the two first years ten pound then that he shall have the â—eesimple otherwise that he shall have the land but for five years and livery of seisin be made according to the deed this is a good condition and by this upon the performance of the condition the feesimple will passe So if one grant land for five years rendring rent and that if the lessee will hold it over to him and his heirs that he shall pay twenty pound rent this is a good condition and if be pay the rent he shall have the feesimple So if a man make a lease for years and at the same time for the surety of the terme to the lessee makes a feoffment to him upon condition that if he be disturbed in his term he shall have the feesimple of the land and deliver both these deeds at one time and give livery of seisin accordingly this is a good condition So if a lease for life be made upon condition that if the lessor or his heirs pay to B or his heirs ten pound at a certain day that then the lessor may reenter and if he doe not pay it at that time and the lessee pay to the lessor or his heirs ten pound at a certain day after the former day that then the lessee shall have the land to him and his heirs for ever this is a good condition But in all cases where these kind of conditions are good to make the increased estate good there
must be these things in the case 1. There must be a precedent particular estate as an estate in tail for life or years for a foundation to erect the subsequent estate upon and that first estate also must be certain and irrevocable not upon contingency or with power of revocation 2. The privity must remain untill the time of the performance of the condition for if the donee or lessee doe grant away the first estate the condition cannot afterwards be performed to effect and produce the encreasing estate 3. The subsequent estate must vest â—o instanti when the contingency upon which the condition dependeâ—h shall happen or never 4. The first and second estate must take effect by one and the same deed or else by two deeds delivered at the same time for quae incontinenti fiunt iâ—esse videntur 5. The condition upon which the increase is must be possible and lawfull for upon an impossible condition it cannot and upon an unlawfull condition it shall not increase If one make a lease for life provided that if the lessee die within Co. 1. 155. Dier 150. sixty years that his executors shall have the land for so many of the sixty years as shall be to come at the time of his death this is no good condition to make the estate to increase but it may be a Covenant And if a lease for years be made on condition that Covenant Co. 1. 84. if the lessor sell the reversion of the same land the lessee shall have the fee of it this is no good condition to increase the estate And a possibility cannot decrease upon a possibility as a lease for years Co. 8. 75. to a lease for life by one contingent the lease for life to a feesimple by another And if a lease be made to a man and a woman for Co. super Litt. 218. their lives on condition that which of them two shall first mary that one shall have the fee and they intermary in this case neither of them shall have the fee for incertainty If a man make a lease for life and adde this condition that if To â—bridge an estate Co. super Litt. 218. 50 Ed. 3. 27. the lessee within one year doe not pay twenty shillings that he shall have but a term of two years and he doe not pay the 20 s. by this his lease for life is gone and he hath now but a lease for two years If a lease be made on condition that if a stranger dislike it or be 2. For the matter substance of it 1 H. 8. 13. discontented with it that the lease shall be void this is a good condition If a lease be made on condition that if the lessee be outlawed the Hil. 6. Jac. B. R. Curia lease shall be void it seems this is a good condition If a feoffment be made on condition that if the feoffee commit Preâ—ogâ—ive Trin. 3 E. 6. per Curiam treason that the feoffor shall reenter in this case the condition is vain for if the feoffor enter his entry is not lawfull for the King is intitled and his title shall be preferred No condition or limitation be it by act executed limitation of a Testament Co. 1. 83. 6. 43. Co. 9. 128. use or by devise or last Will that doth contain in it matter repugnant and tending to the utter subversion of the estate or matter Use that is against law or matter that is impossible to be done is good And therefore in all such cases if the condition be subsequent the estate is absolute and the condition void And if the condition bee to goe before the estate the estate and the condition both are void If a feoffment or other conveyance be made of land or a grant of Repugnant conditions To restrain Alienation Co. super Litt. 223. rent c. in feesimple by deed or will upon condition that the feoffee or grantee shall not alien to certain persons as to I S or to I S and W S this is a good condition So if one make a feoffment in fee of land on condition that the feoffee shall not alien it in Mortmain this is a good condition So if A be seised in fee of black acre and B doth infeoffe A of white acre in fee on condition that he shall not alien black acre this is a good condition But if the condition be that the feoffee or grantee shall not alien the thing granted to any person whatsoever or that if he doe alien to any person that he shall pay a fine to the feoffor these conditions are void in the case of a common person as repugnant to the estate But in case of the King such conditions are good And in the cases of a common Pâ—erogative person also the alienation is good until it be avoided by the feoffor And in Pasc 19 Jac. B. R. it was held by Just Dodridge and Chamberlain that if a feoffment be on condition that if the feoffee alien he Bragge and Tanners case shall pay 10 l. to the feoffor that this is a good condition but Ch. Just and Just Haughton held the contrary for then this shal be a circumvention of the law If a gift had been made to an Abbot his successors on conditioÌ„ not to alien this had been a good condition Doct. St. 124. If one make a feoffment of land to an infant on condition hee shall not alien to any person this is a good condition during the Co. super Litt. 224. 10 H. 7. 11. 13 H. 7. 23. Co. 10. 30. Perk. Sect. 739. 21 H. 6. 33. minority of the infant but not afterwards In like manner as if one make a feoffment to a husband and wife on condition they shall not alien this condition to some intent is good i. to restrain alienation by feoffment or deed and to some intent repugnant and void i. to restrain alienation by fine for that is lawfull So if a gift be made in tail on condition that the tenant in tail may alien for the profit of his issues this is a good condition And so if land be given in tail upon condition that the tenant in tail or his heirs shall not alien in feesimple feetail nor for the term of any others life but for their own lives this condition is good But if lands be given in tail on condition that the tenant in tail or his heirs in tail shall not suffer a common recovery levy a fine with Proclamations according to the Statutes of 4 H. 7. and 32 H. 8. to bar the issues or on condition that he shall not make copyhold estates of copyhold land according to the custome of the place or make leases according to the Statute of 32 H. 8. ca. 28. these conditions are held to be repugnant and for that cause void And yet see for the last of these cases the opinion in
Co. super Litt. 223. to be contrary and that a condition to restrain the making of such leases is good for this power is not incident Dier 48. Co. 6. 43. to the estate but given to him collaterally by the Statute and Quilibet potest renunciare juri pro seintroducto But tota curia in Mary Portingtons case is against him If a man make a gift in tail to A the remainder to him and his heirs on condition that he shall not Co. super Litt. idem Dier 227. alien this condition as to the estate tail is good and void as to the other And therefore if an alienation be he shall defeat it onely as to the estate tail And if a man make a gift in tail on condition that Co. 6. 43. the donee or his heirs shall not alien this is a good condition to some intents and void to other and therefore if he make a feoffment in fee or any other estate by which the reversion is discontinued tortiously the donor shall enter otherwise if he suffer a common recovery And a gift in tail on condition that the tenant in tail shall not make a lease for his own life is not a good condition by Co. 6. 43. against Co. super Litt. 223. If one seised in fee of land and Co. 6. 43. 4. 84. super Litt. 223. make a lease of it for years or life on condition that the lessee shall not alien the land leased or any part thereof during the term or on condition that he shall not alien it or any part of it during the term without licence of the lessor these are good conditions So if one be seised in fee of a Manor and he make a lease of years of it to I S on condition that he shall not make voluntary estates by copy this is a good condition But in a feoffment in fee such a condition is repugnant and void And if one be possessed of a lease for years or of a house or of any other chattel reall or personall and he give or sell all his interest therein upon condition that the donee or vendee shall not alien the same this condition is void for repugnancy and the gift or sale is absolute If one make a feoffment of land in fee on condition that the feoffor Co. 2. 72. Dier 318. shall retain the land for twenty years without interruption it seems this is a good condition and not repugnant If I grant land to another for life if it shall please me so long to Dier 94. suffer him it seems this condition is repugnant and void If a feoffment be made of land in fee on condition that the feoffee Co. 10. 39. super Litt. 206. Plow 77. 133. 21 H. 7. 8. 8 H. 7. 10. Perk. Sect. 731. shall not enjoy the land or shall not take the profits of the land or on condition that the heire of the feoffee shall not inherit the land or condition that the feoffee shall not doe wast or condition that his wife shall not be endowed in all these and the like cases the condition is void as repugnant to the estate If a gift in tail be made on condition that the donee or his issues Co. 6. 41. 1. 84. super Litt. 224. shall not take the profits of the land or on condition that if the donee die his estate shall go unto another or on condition that their wives shall not be endowed or on condition that they shall not do wast or on condition that warranty and assets or a collaterall warranty shall not bar the issues in tail all these conditions are repugnant and void If lands be given or granted to two and their heirs on condition Co. 1. 84. that the survivor shal have the whole notwithstanding partition or on condition that the survivor shall not have the whole albeit there be no severance these conditions are repugnant and void If one make a lease for life on condition that the lessee shall not Perk. â—ol 141. doe fealty this condition is not good If lands be given to one and the heirs males of his body provided Co. super Litt. 204. that if he die without heirs females of his body that the donor shall reenter this condition is repugnant and void If one have land in possession or reversion and he grant a rent Co. super Litt. 146. 10 H. 7. 8. Co. 6. 41. 5 H. 7. 7. 7 H. 6. 44. Perk. Sect. 732. out of it on condition that the grant shall not charge the person of the grantor this is a good condition and not repugnant But if a man grant a bare annuity or grant a rent charge out of another mans land with such a condition or if one grant a rent charge on condition that the grantee shall not distrain nor charge the person of the grantor or if one grant a rent out of land on condition that the land shall not be charged with it all these conditions are repugnant and void So if two grant a rent charge out of land provided that it shall not extend to one of them this condition is repugnant and void If a man seised in fee of land make a lease for years rendring rent Perk. Sect. 733. and after the lessee makes a lease to the lessor of other land on condition that he shall not distrain for his rent in the former lease made to this lessee this is a good condition and not repugnant If one make a feoffment in fee or lease for life with warranty on Perk. Sect. 734. Dier 47. condition that the feoffee or lessee shall not vouch to warrant nor recover in value or if the lease be made without impeachment of wast on condition that if the lessee doe wast the lessor shall reenter these are good conditions and not repugnant All conditions annexed to estates being compulsory to compell a Co. super Litt. 223 224. 207. Perk. Sect. 722 723. Conditions against Law man to doe any thing that is in its nature good or indifferent or being restrictive to restrain or forbid the doing of any thing which in its nature is malum in se as to kill a man or the like or malum prohibitum being a thing forbidden by any Statute or the like all such conditions are good and may stand with the estates But if the matter of the condition tend to provoke or further the doing of some unlawful act or to restrain or forbid a man the doing of his duty the condition for the most part is void And therefore if lands be given or granted to a man upon condition that he shal kil a man or upon condition that he shal burn his neighbours house or upon condition that he shall forswear himself or upon condition that he shall save and keep harmlesse the grantor whatsoever he shall doe or that if hee doe not these things the grant shall bee void this condition is void
that the feoffee shall purchase Perk. Sect. 807 808. 21 H. 6. 28. Dier 15. lands or tenements to the value of twenty pound per Annum To purchase lands and he purchase a rent common or any such like thing to that value this is a good performance of the condition But if in this case the feoffee and another purchase so much land together jointly this is no good performance of the condition So if the feoffee alone purchase lands to the value of twenty pound per Annum and there is a rent issuing of it which must be deducted this is no good performance And yet in these cases if the stranger Jointenant release to the feoffee all his right in the land or the grantee of the rent release to him the rent before the time of the performing of the condition the condition is well performed in both cases Tantum valet terra quantum vendi potest And if one make a feoffement Perk. Sect. 812. in fee on condition that if the feoffee purchase land to the value of twenty shillings the feoffement shall be void and after the feoffee disseise another man of land to that value it is said that by this the condition is performed Sed quere And that if he recover so much land in value in an action that this is no performance of the condition Sed quere For this seemes to me a better performance Payment of the condition then the former To pay mony Tender If lands be granted on condition to pay money and the money Dier 181. Lit. Sect. 334 335. 338. Co. super Lit. 209. is tendred according to the condition but either no body is ready to receive it or it is refused this is a good performance of the condition And after a man hath once refused the money so tendred to him according to the condition he hath no remedy in law â—o recover it except it be money lent upon a mortgage a Termes of the law tit coine And if the payment be made part of it with counterfeit Coine and the party accept it and put it up this is a good payment and consequently a good performance of the condition b Co. super Lit. 212. Fitz. Barre 343. And if at the day of payment the parties doe account together and he to whom the money is to be paid being indebted to the other that debt by agreement Acceptance is allowed and the residue is paid and accepted this is a good performance of the condition c Co. super Lit. 212. So if the party that is to receive it accept and take new security by bond or statute for the money this is a good performance of the condition d Dier 45. Co. 5. 96. And so in most cases when by a condition a thing is to be done one way and to be done to the party to the condition himselfe and not to a stranger and he doth accept it another way this is a good performance of the condition VoleÌ„ti non fit injuria But if the thing to be done be to be to a stranger one that is no party to the condition and it be done in any other manner and he accept thereof this is no performance of the condition And so also if the time of doing the thing be past as if one make a feoffement to me on condition that if he pay me tenne pound such a day the feoffement shall be Perk. Sect. 392. void and he doth not pay me at the day but doth die and after by agreement between his heire and me me doth pay me the tenne pound and I receive and accept it and thereupon I suffer him to enter and hold the land in this case the condition is not performed but I may enter upon him and out him notwithstanding If the mortgagor pay the money according to the condition and Adjudge Mich. 40. 41 Eliz. B. R Powel versus Bartholomew after the mortgagee deliver it to the mortgagor as his own money the condition is performed and the mortgage discharged notwithstanding If a feoffement be made to I S on condition that if the feoffor pay to the executors or administrators of I S tenne pound the Co. 5. 96. super Lit. 209. feoffement shall be void and I S die and the tenne pound is paid to the executors of I S according to the condition but it is covinouâ—â—y done i. there is a private agreement that the feoffor shall have all or part of his money againe this payment in this case is no good performance of the condition but that payment that must be a performance of a condition in this case to fetch lands out of the hands of an heire must be reall full and effectuall If a lease be made on condition that the lessee shall get the To get the good will of I S. 14 H. 8. 17. good will of I S and the lessor doth come to I S first and aske his good will and he denie it him and after when the lessee doth aske it he doth grant it him in this case the condition is performed So if the condition be that he shall get his good will by such a day and at the first being desired he denieth it but afterwards and before the day he doth grant it And yet if no day be set and he desire his good will and I S denieth it and afterwards he doth get his good will it seemes this is no performance of the condition If there be two things in the copulative to be done by the condition Perk. Sect. 746 See before both must be done otherwise the condition will not be performed If a feoffement be made on condition that if the feoffor and I S Co. super Lit. 219. pay tenne pound at Michaelmas the feoffement shall be void 2. When the act is to be done by a stranger to pay money 3. When the act is to be done to a stranger To make an estate and before the day the feoffor die and I S pay the money this is a good performance of the condition But if the feoffor be living contra If a feoffement be made on condition to make an estate to a Plow 133. Co. 3. 64. stranger by a day and before the day he die in this case if an estate be made as neere the condition as may be it is sufficient * Tender If a feoffement be made to I S on condition that he shall infeoffe Co. super Lit. 209. 19 H. 6. 67. Perk. Sect. 815 816. 2 E. 4. 2. 19 H. 6. 67. I D and his heires and I S doth tender the feoffement to I D and he doth refuse to take it this is no performance of the condition in this case But if it be to be done to the feoffor himselfe contra And so also it is if the condition be to make an estate taile or any lesser estate to a
for life years in present or future or for one yeare or by taking a wife whereby shee may be intitled to dower or by suffering a recovery of the land or by granting of any rent Common or the like or by entring into any Statute c. or by suffering any Judgement to be had against him or by doing any other such like act whereby he cannot convey the land according to the condition in the same plight quality and freedome it was at the time of the conveyance made in either of these cases the condition is ipso facto broken And albeit the land be afterward discharged and the party againe enabled before the day to performe the condition yet this will not salve the breach And so also it is of a limitation But when the condition is to be performed of the part of the feoffor or grantor there disability before the time will not hurt so as he be againe enabled at the time And so also it is when the condition is to be performed of the part of the feoffee and there is no certaine day set for the performance of the thing for in this case albeit he be once disabled yet if he be afterwards againe enabled and doe it within the time that the law doth give him to do it in this case the condition is not broken And so also it is if the feoffee be disseised and during the disseisin he doe any such act as before in this case before his entry this is no breach of the condition for till then the charge doth not binde the land And so likewise it is when the disability doth proceed from another cause as where one doth make a feoffement on condition that the feoffee shall reinfeoffe before such a day and before the day the feoffor disseise the feoffee and keepe him out till the day be past or one doth make a feoffement on condition the feoffee shall marry B before such a day and before the day the feoffor himselfe doth marry her so that the feoffee cannot performe the condition in these cases the condition is not broken If one make an estate of lands held in Capite on condition Trin. 13 Jac. Slade versus Tompson B. R. To imploy the profits to charitable uses that he to whom it is made shall imploy the profits thereof to divers charitable uses and he die his heire within age by reason whereof the King hath the land during the minority of the heire so that the profits cannot be employed this is no breach of the condition If one make a feoffement of land on condition to reinfeoffe To reinfeoffe Co. 1. in Porters case in convenient time and the feoffee doth not so but doth make a lease to another this is a double breach of the condition And the same Law is of a Devise by will in this manner If a feoffement be made upon condition that the feoffee shall To make an estate Perk. Sect. 796. Co. 8. 90 See the parable Mat. 21. 28. make some estate to the feoffor or some other by a day and the feoffee before the day say to him to whom the estate is to be made that he will never make the estate notwithstanding he doth make the estate before the day according to the condition in this case it is said the condition is broken Sed quere of this for it seemes if he really deny it before and actually performe it at the day that this is a good performance of the condition As if a lease be made of a house on condition that the lessee shall not disturbe the lessor in the taking a way of his goods out of the house and To suffer one to take his goods when the party doth come or send to fetch them the lessee doth only forbid them this in this case is no breach of the condition and it was agreed in this case that words without some deeds as shutting the dore against them forcible resistance or laying of hands upon them or the like are no breach of such a condition And if a lease be made on condition that the lessor shall be 3 H. 4. 8. foure times a yeare in the house demised without being ousted by the lessee and the lessee seeing him comming doth shut the dores To suffer one to come into a house or windowes against him this hath been thought to be no breach of this condition If a lease be made on condition that the lessee shall pay yearly Dier 33. To pay a yearly rent or sum to the lessor during the terme tenne pound in this case if he faile of payment once the condition is broken and estate forfeit So if one make a feoffement in fee of land on condition to pay tenne pound yearly to I S if he faile once the condition is broken If a lease be made of a Manor in which are divers Copyholders Not to molest Copiholders Penner versus Glover 37 38 El. Mich. B. R. per curiam on condition that the lessee shall not molest vex or put out any Copiholder paying his duties and services in this case if the lessee enter upon and put out any one Copiholder this is a breach of the condition But if he enter vi armis upon a Copiholders tenements and there beate him only or the like this is no breach of the condition If there be a condition to pay rent and the lessee let part of To pay rent Crompt Jur. 64 65. the land to other undertenants or let all the land to another for part of the time and he undertake the rent still and faile of payment in this case the condition is broken and estate forfeit But if there be any covin and practise in the case between the first lessor and the lessee the undertenants may perhaps have relief in equity Equity If one make a lease for years of land and then also make a feoffement Co. 8. 90. in fee of the lands on condition that if the lessee be disturbed Not to disturb bed in his terme that he shall have the fee simple and he is disturbed by the feoffor or by his meanes in this case the condition is broken and the lessee shall have the fee simple But if the disturbance be by a stranger and not by the feoffor or by his meanes or consent this is no breach of the condition If a lease be made on condition that the lessee shall not be out-lawed Not to be outlawed Per 2. Justices H. 7 Jac. B. R. and he is outlawed without proclamation it seemes this is no breach of the condition because the outlawry is not good If a condition possible at the time of creation become after impossible Lit. Sect. 352. Co. 2. 59. in part by the act of God and the party doe not performe that which is possible the condition is broken If a man make a lease for years
part of the mother shall enter upon him and enjoy the land And if a man be seised of land in the right of his wife and he make a feoffement in fee of it upon condition and die the heire of the husband shall enter for the condition broken but the wife shall have the land And so also is the law as touching Privies in right and representation for Executors and Administrators shall take advantage of a condition now as heretofore And so also shall the Successors of a Deane and Chapter Bishop Arch-deacon Parson Prebend or any body Politique or corporate Ecclesiasticall or Temporall these shall take advantage of conditions as heretofore they did So also the law is the same as touching Privies in law for they shall no more take advantage of a condition now then heretofore But as touching grantees of reversions and Privies in estate there is some alteration made of the Law for by a new law it is provided That all persons which Sat. 32 H. 8. cap. 34. shall have any grant of the King of any reversion c. of any lands c. which pertained to Monasteries c. as also all other persons being grantees or assignees c. to or by any other person or persons and their heires executors successors and assignes shall have like advantage against the feoffees c. by entry for not payment of rent or for doing wast or for other forfeiture c. as the said lessors or grantors themselves ought or might have had And for the true understanding of the sense of this Statute Co. super Lit. 214. Plow 27. and the ancient Common law further touching this point 1. These diversities must be observed to be taken before the Statute which take place still 1. Between a condition that doth require a reentry and a limitation Co. 10. 36. F. N. B. 201. that doth ipso facto determine the estate without entry for albeit a stranger might not take advantage of the first yet he might take advantage of the last by the Common law And therefore if a man at this day make a lease to another quousque or untill I S come from Rome or if a man make a lease to a woman quamdiu casta vixerit or if a man make a lease to a widow si tamdiu in pura viduitate viveret or if a man make a lease to another for one hundred years if he live so long and then the lessor doth grant the reversion to a stranger in all these and such like cases the grantee of the reversion may take advantage of the limitation for after the estate is ended by the limitation he may enter 2. Between a condition annexed to a freehold and a condition Co. 3. 64 65. Co. super Lit. 214. 11 H. 7. 17. Plow 136. annexed to a lease for years for if before the Statute a man had made a gift in taile or lease for life on condition that if the donee or lessee did not pay tenne pound by such a day the gift or lease should be void or cease in this case the grantee of the reversion could not by the common law have taken advantage of the condition for it could not be void or cease but by entry which could not be transferred to another But if a lease for years had been made on such a condition a grantee of the reversion might by the common law have taken advantage of this condition for the estate in this case was by the breach of the condition ipso facto void without entrie But now the grantee of the reversion shall have advantage of the condition in both these cases 3. Between a condition in deed and a condition in law for by Co. super Lit. 214. the very common law not only the grantee of the reversion but also the Lord by Escheat may either of them have advantage of a condition in law for any breach in his owne time 2. These Resolutions and Judgements upon the Statute must be marked 1. That the Statute is generall and the grantee of the revesion Co. super Lit. 214. Co. 5. 13. of every coÌ„mon person as well as the King may take advantage of conditions 2. That the Statute doth extend to grants made to the successor of the King aswell as to the King albeit he only be named in the Statute 3. That he that comes to the reversion by fine feoffement grant limitation of use common recovery or bargaine and sale is such a grantee as is within the intendment of the Statute 4. That where the Statute doth speake of feoffees c. that it doth not extend to gifts in taile and therefore if a gift in taile be upon condition and after the donor doth grant the reversion this grantee shall never have any benefit of this condition 5. That where the Statute doth speake of grantees and assignees of the reversion that hereby an assignee of part of the state of the reversion may take advantage of the condition as if lessee for life be and the reversion is granted for life c. or if lessee for years be c. and the reversion is granted for years c. in these cases the grantees of the reversion shall have advantage of the conditions * Davy and Mathews case per. 2 Justiâ—es Trin. 1â— 1 Jac. B. R. So if a lessee for one hundred years make a lease for tenne years rendring rent with condition of reentry and the first lessee doth afterward grant his terme and estate to I S in this case I S is such a grantee and assignee of the reversion as shall take advantage of the condition 6. That as well mediate as immediate grantees i. the grantees of grantees in infinitum are intended within Co. 5. 112 113. Co. super Litt. 214. this Statute 7. That a grantee of part of the reversion cannot take advantage of a condition by this Statute And therefore is a lease be made of three acres reserving rent upon condition and the reversion is granted of two of the three acres in this case the Prerogative rent shall be apportioned but the condition is destroyed except it be in the Kings case And yet a condition may be apportioned ApportionmeÌ„t by the act of law or by the wrong of the lessee As if a lease be made of two acres the one of the nature of Burrough English and the other at the Common law upon condition and the lessor having issue two sonnes dieth in this case each of them shall enter for the condition broken And if the lessee upon condition make a feoffment of part of the land this doth not destroy the condition There is therefore herein a difference between a condition Power of revocation that is compulsory and a power of revocation that is voluntary for he that hath such a power may by his own act extinguish it in part by levying a fine of part of the land or
they shall bee decayed this is a good covenant And so also it is where these or the like words be inserted amongst other covenants And that the lessee shall pay ten shillings a year rent or that the lessee shall not alien these shall bee said to bee covenants unlesse it bee in such cases where there is some other meanes to inforce the doing of the thing As if in case of the rent there bee a clause of distresse Bro. Covenant 21. 26. Co. Dier ubi supra reentry or nomine penae And in all cases regularly where words that doe beginne the sentence be conditionall and have the effect of a condition and doe give another remedy there they shall not be construed to make a covenant as in the cases of condition before And yet if words of condition and words of covenant be coupled together in the same sentence as Provided alwayes and it is covenanted or the like in such cases the words may be construed to make a covenant and a condition both If a man make a lease for life by Indenture and therein are inserted Dier 150. Co. 1. 155. these words It is provided that if the lessee die within sixty Lease years that then his executors and assignes shall have the land untill the sixty years be ended to bee accounted from the date of the Indēture this albeit it be not a good lease yet it is a good covenant If a man make a lease for years and warrant it to the lessee his Bro. covenant 38. descent 50. 21 H. 7. 32. heirs and assignes during the term or he that hath right to the land confirme the estate of the lessee for years with warranty in these cases howbeit this be not a warranty nor in the nature of a warranty yet it shall be construed a good covenant in law for the quiet enjoying of the thing If the Lord grant to his tenant that he will not distrain him in Perk. Sect. 69. such a part of his land for his rent this shall be taken to be a good covenant by this word grant A covenant to do anything that for the substance matter of it is 2. In respect of the matter or substance of it See West Symb. in his first part toto infra Plow 308. 302. 27 H. 8. 16. Dier 13. 324 253. 251. Fitz. Covenant 1. lawfull or not to doe any thing that for the matter of it is unlawfull is good as if the grantor covenant that he is seised or possessed of a good estate of and in the thing he doth grant and hath power to grant it That the grantee shall quietly enjoy it That it is and shall be free from incumbrances That he will make further assurance if need be That if the grantee be evicted he shall pay no rent That the grantee shall pay rent That he shall discharge all dues and save and keep harmlesse the grantor That he shall not alien the thing granted or if he doe that the grantor shall have the first refusall thereof That he shall not doe wast That he shall have houseboot hayboot That the grantor or grantee shall repaire the old housing or build new That he shall pay and discharge all rents and payments issuing out of the land That he shall not fell trees or if he doe that he shall pay to the grantor so much in money for every tree That if he fell any underwood he shall fence it That he shall make an estate of land That he shall be quit of any suit service or payment That he shall give sufficient security to I S for an hundred pound he doth owe him and all these and the like covenants are good And generally where a condition for the matter See Condition Num. 7. of it is good a covenant comprehending the same matter is good also But if the matter required to be or not to be done by Against Law See Conditions against Law Numb 7. Dier 6. the covenant be for the substance thereof unlawfull then is the covenant void and doth not bind and therefore if one covenant to kil or rob a man or the like this covenant is void So if one covenant that he will maintain another in his suits or that he will not appear in Inquests or that he will break the peace or that hee will forestall corn or the like these covenants are void So if one be tenant in feesimple of land and he covenant that he will not alien it this covenant is void So if a man be a tradesman and he covenant 18 Jac. B. R. Jolliffe versus Broad Pas 19 Jac. B. R. Tanner versus Brag. that he will not use or exercise his trade this restraint if it be absolute and continuall it is void but if it be sub modo only as that he shall not use his trade at one time or in one City or Town onely this covenant may be good So if a man be by covenant restrained to sow the land which hath been used to be sowed and this be either absolutely or sub modo i. that if hee sow it hee shall pay thus much an acre for it these covenants have been held to be void Sed quaere how the law is now for it seems the Statute of 39 Eliz. ch 2. is discontinued If A owe mony to B and B owe mony to C and Hil. 20 Jac. Co. B. Maire versus Stapleton B doth make a letter of Atturney to C to sue A at his own charge B doth covenant with C that he wil not release the debt to A in this case albeit this be maintenance in C to sue at his own charge yet this is a good covenant and not against law So also if a Deane Trin. 14 Jac. Co. B. Tailors case and Chapter or the like covenant to renue a lease contrary to the meaning of the Statute of 18 Eliz. ch 11. it seems this is a good covenant And if the thing to be done by a covenant be in the nature Impossible 27 H. 8. 27. 4 H. 7. 4. of it impossible the covenant is void And therefore it is that if a man covenant to goe to Rome in three dayes or the like the covenant is void So if a man covenant to make a feoffment to his wife this covenant is void But if a man covenant to make a good estate of land to her in feesimple or otherwise or to find her maintenance or to give her so much by the year these are good covenants And generally there where the matter being in a condition will make See Condition Num. 7. the condition void because it is against Law there it being in a covenant will make the covenant void If a lessor covenant with his lessee that he shall and may have Dier 19. 115 houseboot hayboot plowboot c. by the assignment of the Bailiffe of the lessor this is a good covenant and
lessee and he doth not clense the ditch by the time by this the covenant is broken but if in this case the lessor doe by force keepe the lessee out of the ditch or place it selfe contra If A and B be Jointenants of a shop and A covenant with Hil. 16 Jac. B. R. Siliard versus Loc. To have liberty to goe in and out of a shop B that he and his assignes shall have free ingresse and egresse in and out of the shop and A doth appoint C his servant to enter as servant to him and to occupy in common with A and this servant doth expell the servant of B in this case this is a breach of the covenant If A covenant with B that B shall come foure times a year 3 H. 4. 8. into the house of A without being outsted by A and A when he To come into a house doth see B comming doth shut the doores and windowes and doth not suffer B to come in by this the covenant is not broken * To mary another Make a feoffment c. Tender and refusall If A covenant with B to mary the daughter of B make a feoffement 33 H. 6. 18. Bro. Covenant 3. Fitz. Barre 62. or doe any other act to C who is a stranger to the covenant and A doth tender it and offer to doe as much as doth lie in his power but the stranger doth refuse it and thereby it is not done yet this doth not excuse but the covenant is broken But if the covenant be to doe any such act to the covenantee himselfe and the covenantor tender it and the covenantee refuse it by this the covenant is performed See more in the last question and in Obligation Numb 7 8 9. and Mich. 7 Jac. Co. B. in Condition Numb 9 10. Any one that is party to the deed to whom the covenant is made 8. Who shall or may have advantage of a covenant in deed or law and bring a writ of covenant upon the breach of it Or not may take advantage of the covenant but not a stranger for if A covenant with B to doe an act to C who is no party to the deed and he doth it not B and not C must sue him upon this breach If a lease be made of land to a husband and wife for years and Co. 5. 17. Dier 257. 47 E. 3. 12. the lessor doth enter upon the land and put them both out or the one of them after the death of the other in this case both of them whiles they both live and the survivor after the death of one of them may have this action of covenant upon the covenant in law So if a wardship be granted to a woman by deed and shee take a husband and die the husband shall have advantage of this covenant in law made by the word grant if he be disturbed So if one by the words demise or grant lease land to a woman sole for years who taketh a husband and dieth in this case if the husband be disturbed he shall take advantage of this covenant in law If a feoffement be made in fee and the feoffor doth covenant Heire Dier 338. to warrant the land or otherwise to the feoffee and his heires in this case the heire of the feoffee shall take advantage of this As if A covenant with B and his heires to infeoffe B and his heires of land and B die before it be done in this case his heires shall take advantage thereof And if A B and C have lands in coparcenery and they purchase other lands in fee and they covenant each to other his heires and assignes to make such conveyance to the heire of him that shall die first of a third part as he shall devise in this case the heire not the executor shall take advanntage of the covenant Executors and Administrators shall take advantage of inherent Executors administrators Co. 5. 17. F. N. B. 145. H. Dier 112. 271. covenants albeit they be not named And therefore if A covenant to doe a thing to B and doe not name his executors or administrators and it be not done it seemes the executors or administrators of B may have an action of covenant for the not doing of it As if one covenant with I S to pay him money at Michaelmas and doe not say to his executors c. and he die before the time in this case his executor or administrator shall take advantage of this covenant and may recover the money * S e Condition Numb 12. Co. 5. 18. 9 Jac. B. R. Wilborne Bestwichs case accord Grantees of reversions shall have the like advantage against Assignees oâ— Grantees Fermors by action only for any covenant or agreement contained in their lease as the lessors their heires or successors might And so also shall lessees against grantees of reversions recoveries in value except by the statute of 32 H. 8. cap. 34 And herein as in the cases of a condition before a difference is taken between covenants that are inherent and covenants that are collaterall For the covenants whereof grantees by this statute shall take advantage are inherent covenants i. such covenants as doe concerne the thing granted and tend to the supportation of it As where a lessee for life or years doth covenant with his lessor and his heires to keep the houses demised in good reparations or the like and after the lessor doth grant away the reversion of all * Mich. 8 Jac. Pimes case or part of the houses to I S in this case I S shall take advantage for any breach of the covenant in his time but not for any breach before the time the reversion was granted But if the lessee doth covenant with his lessor and his heires to pay him a summe of money or make him a feoffement or the like and then the lessor doth grant the reversion to I S in this case I S shall not take advantage of this covenant And yet the executors or administrators of the lessor shall take advantage of this covenant Regularly every assignee of the land or thing demised shall take Co. 5. 17. advantage of inherent covenants as if a covenant be to have Estovers to burne in the house demised or to have timber to repaire or if the covenant be that the lessor or lessee shall repaire or the like And therefore of these assignees in deed and in law assignees of assignees in infinitum shall take advantage and assignees of executors or administrators Tenants by Statute or Elegit or after a sale upon a Fieri facias a husband in the right of his wife any one of these and any other that shall come lawfully to a terme unto which such a conveant is incident albeit he be not named yet may he take advantage of it If a lease for years be made to I S by the words Demise or Co. 4.
a man by his last Will and Testament devise lands to antoher man for life or in tail rendring rent to this estate there is a warranty in Law annexed The words Dedi concessi or Dedi onely in a feoffment make a Co. super Litt. 384. F. N. B. 134. Co. 4. 80. good warranty in Law But the word Concessi onely in fine or feoffment doth not make a warranty in law And albeit there be an expresse warranty in the deed yet this doth not take away the implied warranty of the Law And this warranty in Law by Dedi Concessi or by Dedi onely is a generall warranty during the life of the feoffor Every partition and exchange implieth in it and hath annexed Partition Exchange Co. super Litt. 102. 384. to it a speciall warranty in Law and how it shall bar and be extended see in Exchange Every tenure by homage Auncestrel i. where a tenant and his Co. 4. 80. Auncestors have held land of a Lord and his Auncestors time out of mind by homage hath a warranty in Law annexed to it by which the Lord is bound to warrant it to the tenant and his heirs If one make a gift in tail or lease for life of land by deed or without Co. super Litt. 334. deed reserving a rent or of a rent-service by deed in these cases there is annexed an implied warranty against the donor or lessor his heirs and assignes When dower is assigned to a woman there is a warranty in Law included which is that the tenant in dower being impleaded shall Co. super Litt. 384. vouch and recover in value a third part of the two parts whereof she is dowable And this warranty in Law is of the nature of a lineall warranty Co. super Lit. 384. and shall bind as a lineall warranty onely for it doth never barre any collaterall title And hence it is that this warranty and assets in some cases is a good bar as if tenant in tail exchange for other lands which are descended to the issue and he hath accepted of them or if not that other lands are descended to him But if tenant in tail of lands make a gift in tail or lease for life rendring rent and die in this case this is no bar And yet if other assets in fee simple descend this warranty in Law and assets is a good bar To every good warranty in deed that must barre and binde these Co. super Litt. 367. 7. What shall bee said a good warranty in deed Or not And how it shall bar and bind Infant things are requisite 1. That the person that doth warrant bee a person able for if an infant make a feoffment in fee of land and thereby doth binde him and his heirs to warrant the land in this case albeit the feoffement bee onely voidable yet the warranty is void 2. That the warranty be made by deed in writing for if a Litt. Sect. 703. Co. super Litt. 386. man make a feoffement by word and by word binde him and his heirs to warrant the land this is not a good warranty So if a man give lands to another by his last Will and thereby binde him and his heires to warrant it this warranty albeit the Will bee in writing is void 3. That there be some estate to which the warranty Co. 10. 96. Super Litt. 384. is annexed that may support it for if one covenant to warrant land to another and make him no estate or make him an estate that is not good and covenant to warrant the thing granted in these cases the warranty is void 4. That the estate to Co. super Litt. 378. 26 H. 8. 9. which the warranty is annexed bee such an estate as is able to support it and therefore that it be a lease for life at the least for if one make a lease for years of land and bind himselfe and his heires to warrant the land this is no good warranty neither will it have the effect of a warranty but this may amount to a covenant on which an action of covenant may be brought 5. That the wartanty Co. super Litt. 12. Litt. fol. 161 Sect. 735. 〈◊〉 descend upon him that is heir of the whole bloud by the common Law to him that made the warranty and not upon another for if tenant in tail in Burrough English where by custome the youngest son is to inherit discontinue the tail and have issue two sons and the Vncle release to the discontinuee with warranty and dieth this is no good warranty to binde the sonne So if in this case tenant in taile discontinue the taile with warranty c. having two sonnes and die seised of other lands in the same Burrough in fee simple to the value of the lands in taile the younger sonne is not barred by this warranty So if one give his land Litt. â—o 161. to the eldest sonne and the heires males of his body the remainder to the second sonne c. and the eldest sonne doth alien with warranty having issue a daughter and die this is no good warranty to barre the second sonne So if tenant in taile have issue two daughters by divers venters and die and they enter and a Litt. Sect. 737. stranger doth disseise them and one of them doth release all her right and binde her and her heires to warrant it in this case the warranty is not good to barre the sister but if they had beene by one venter contra So if two brothers be by demy venters and Co. super Litt. 387. Litt. Sect. 718. the eldest doth release with warranty to the disseisor of the uncle and dieth without issue and the younger dieth this is no good warranty to barre the younger brother for a warranty must evermore descend upon him that is heire at the Common Law to him that made it 6. That he that is heir doe continue to be so and Litt. Sect. 745. 746. that neither the descent of the title nor the warranty be interrupted for if one binde him and his heires to warrant and after is attainted of treason or â—elony and die this warranty doth not binde his heire So if tenant in taile be disseised and after release to the disseisor with warranty and after the tenant in taile is attainted of felony and hath issue and die this warranty will not bind the issue 7. That the estate of freehold that is to bee Co. 10. 96. 97. super Litt. 388. 21 H. 7. barred be put to a right before or at the time of the warranty made and that he to whom the warranty doth descend have then but a right to the land for a warranty will not barre any estate of freehold or inheritance in esse in possession reversion or remainder that is not displaced and put to a right before or at the time of the warranty made though after at the time
of the descent of the warranty the estate of freehold or inheritance be displaced and devested And therefore if there be father and son and the sonne â—â—th a rent-service suit to a mill rent-charge rent-seck common of pasture or other profit apprender out of land of the father and the father maketh a feoffment in fee with warranty and dieth this shall not barre the sonne of the rent common c. And albeit the sonne after the feoffement with warranty and before the death of the father had been disseised and so being out of possession the warranty had descended upon him yet this warranty should not binde him So if my collaterall Auncestor release to my tenant for life with warranty and die and this warranty descend upon me this shall not binde my reversion or remainder But if in the case before the sonne be disseised of the rent c. and affirme himselfe to be disseised by the bringing of an Assise for otherwise he shall not be said to be out of possession of a rent or the like and after the father doth release with warranty and die in this case the collaterall warranty shall binde and barre the son of his rent c. And if in the last case my tenant for life be disseised and my Auncestor doth release to the disseisor with warranty and die this is a good warranty to barre and bind me 8. That Litt. Sect. 734. the warranty doe take effect in the life time of the Auncestor and thâ—t he be bound by it for the heire shall never be bound by an expresse warranty but where the Auncestor was bound by the same warranty and therefore a warranty made by Will is void 9. That the heire claim in the same right that the Auncestor doth Co. super Litt. 370. for if one bee a successor onely in case of a corporation hee shall not be bound by the warranty of a naturall Auncestor 10. That Litt. Sect. 726. Co. 1. 67. 140. super Litt. 380. the heire that is to be barred by the warranty be of full age at the time of the fall of the warranty for if my Auncestor make a feoffment or a release with warranty and at this time I am within age and after he die and the warranty descend upon mee within age this warranty shall not bind me but if I become of age after the warranty of my Auncestor and before his death in this case the warranty may barre mee And in the first case it will barre me also whiles it is in â—orce but I may by my entry avoid it And the same Law is of a woman covert And yet if the entry of an infant or a woman covert be not lawful when the warrantie doth descend in this case the warrantie shall binde them as well as any other for such a warrantie cannot be avoided but by entrie and avoiding the estate And where the husband is within age at the time of the descent of a warranty to his wife and the entrie of the wife is taken away there the warranty shall bind the wife If lands be given to A for life and after to the next heir male Co. 1. 66. 44 Ed. 3. 30. 44 Ass pl. 35 of A and the heires males of the body of that heire male and A having issue B makes a feoffment of the land with warrantie to I S this is a good warrantie and a barre to the issue for a man may be barred of his right by a warrantie which hee could never avoid as where lessee for life is disseised and a collaterall Auncestor of the lessor doth release to the disseisor with warrantie and die and this doth descend upon the lessor by this he is barred A warrantie made for life or in taile is good and shall binde Litt. Sect. 738 Co. super Litt. 387. for so long onely as if tenant in taile of land let it for life the remainder to another in fee and a collaterall Auncestor doth confirme the estate of the tenant for life and die and the tenant in taile hath issue this is a barre to the issue during the life of the tenant for life And in this case upon a voucher the recovery in value shall be put for life onely If one make a gift in taile and grant to warrant the land given Co. 10. 96. according to the gift this warrantie is good no longer then the estate doth last And no warrantie that a donor can make in this case can bar him of the land if the donee die without issue and the estate determine And where a warranty doth bar it is entire and doth extend to Co. 8. 52. super Litt. 373. all the land and to all persons upon whom it doth descend and is a barre of all the right that every one of them hath in the land so that if they have all right jointly or severally or one onely hath all the right and the rest none he that hath the right is barred And therefore if lands be given to A and the heirs of his body and for want of such issue to E his sister and the heirs of her body and A doth make a feoffment with warrantie and die without issue having two sisters E and S this is a bar to E for the whole albeit the warranty descend on her and another If there be tenant for life the remainder to his sonne and heire Co. 5. 79. apparant in taile and the father doth a feoffement in fee with warrantie and dieth in this case this is a good warrantie and will bar the son albeit it be made of purpose to bar him But if by agreement and covin between him and A and B he make a lease to A who makes a feoffment in fee to B to whom the father doth release with warrantie thinking by a collaterall warrantie to bar his son this is no bar for this warrantie began by disseisin And if in the first case the son doth enter in the life time of the father upon the land he doth avoid the warrantie If the father bee tenant for life the remainder to the next heire Co. 1. 66. male of the father and to the heires males of the body of such next heire male and the father makes a feoffment to I S with warrantie and dieth it seems this warrantie is a good bar to the heir and in this case the heir cannot enter in the life time of his father for he cannot be heire male unto his father untill his fathers death If tenant for life make a feoffement with warrantie or be disseised Co. super Litt. 366. 365. Co. 1. 67. Stat. Glouâ— ch 〈◊〉 6. Litt. Sect. 724 725. and release with warrantie and he in reversion being heir to the tenant for life doth not enter but suffer the lessee for life to die and thereby the warrantie to fall and descend upon him in this case this warrantie generally is a bar without any
assets But if hee that doth so alien c. bee tenant by the courtesie this is no barre to the heire without assets in fee simple from the tenant by the curtesie and then it is a barre for so much And if the heire for want of this assets at the time doth recover the land from his mother and after assets doth descend from the father in this case the tenant shall recover the same land of the mother againe And if she that doth so alien c. to be tenant for Stat. 11 H. 7. chap. 20. Litt. Sect. 727. Co. super Litt. 365. life of the inheritance or purchase of her deceased husband or given unto her by any of the Auncestors of her husband or by any other person seised to the use of her husband or of any of his Auncestors in this case her alienation release or confirmation with warrantie shall not binde the heire whether hee have assets or not But if a man convey lands to the use of himselfe Co. 3. 58. B his wife and the heirs of his body and they have issue C and the father dieth and C disseiseth his mother or getteth a feoffement from a disseisor and then suffereth a recovery with a single voucher and after the wife doth release to the recoverer with warrantie in this case the warrantie is a barre to the issue and not void by the Statute of 11 H. 7. If the husband that is seised of lands in the right of his wife levy Co. super Litt. 366. 381. Stat. Glouc. ch 6. Litt. Sect. 332. a fine or maketh a feoffment in fee with warranty and the wife dieth and then the husband dieth this warranty shall not binde the heire of the wife without assets of other land in fee simple from the father albeit he be not tenant by the courtesie but it is before her death that he doth make the estate and the warranty But a Fine levied by the husband and wife in this case is a good bar to the heir If tenant in taile that is in of another estate i. either by disseisin Co. 3. 62. 22 Ass pl. 37. 29 Ass pl. 34. Fine or by the feoffment of a disseisor doth suffer a common recovery and a collaterall Auncestor of the tenant in taile doth release with warrantie to the recoverer and after the recoverer doth make a feoffment to uses executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case albeit the estate of the land be transferred in the post before the descent of the warrantie yet it shall binde So if hee to whom the warrantie is made suffer a common recovery and after the Auncestor dieth But if tenant in dower enfeoffe a villain with warranty and the Lord of the villain enter into the land before the descent of the warrantie and after the woman dieth this warrantie shall not binde the right of the heir So if a collaterall warrantie be made to a bastard and his heirs and living the Auncestor the Bastard dieth without issue and the Lord by escheat doth enter and after the Auncestor dieth this warrantie shall not binde A collaterall warrantie may descend upon an issue in taile before the right descend and yet be good with this difference that Litt. Sect. 7 H. Co. super Litt. 388 the right be in esse in some of the Auncestors of the heir at the time of the descent of the warranty as if tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile releaseth all his right c. to the disseisor with warrantie and dieth without issue and the tenant in taile hath issue and dieth in this case the issue is barred But otherwise it is where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warrantie as if Lord and tenant be and the renant make a feoffment in fee with warrantie and after the feoffee doth purchase the Seigniory and after the tenant doth cease in this case the Lord shall have a Cessavit for a warrantie doth never bar any right that doth commence after the warrantie If the case be so that if no such warranty had beene made by Litt. Sect. 703. 711. 8. What shall be said a lineall warranty And how such a warranty shall barre the father or other Auncestor the right of the lands or tenements so warranted had or might have descended or come from the same Auncestor and that from and by him that made the same warranty such a warrantie is a lineall warrantie As if a man bee seised in fee of land and make a feoffment of it to another and binde him and his heires to warrant the land and hath issue and die and the warrantie doth descend upon the issue this is a lineall warrantie for that if none such had been Co. super Litt. 371. the right of the land had descended to him as heire to his father and he must have made his descent by him And if there be grandfather father and son and the grandfather be disseised and the father release to the disseisor being in possession with warranty c. and dieth and after the grandfather dieth this is a lineall warrantie to the son and albeit in this case the warrantie descend before the right yet it is a good bar And if there be two brothers Litt. Sect. 707. and the father is disseised and the eldest brother doth release with warranty and die without issue and after the father dieth and the warrantie doth descend to the younger sonne this is a lineall warrantie to him And if lands be given to A for life Co. 1. 66 67. the remainder to his right heires and hee doth make a feoffment with warrantie and die this is but a lineall warrantie And if two parcenours be and the eldest enter into all the land to her owne use and then doth make a feoffment with warrantie and dieth without issue this as to her owne part is a lineall warrantie but as to her sisters part is a collaterall warrantie And in every Co. 8. 52. New Terms of the Law tit Warrantie case where one doth demand an estate taile if any Auncestor of the issue in taile whether he had possession of the land or not hath made a warrantie and if the issue that were to bring a writ of Formedon may or might have by possibility by some matter that might have been done conveyed to himself a title by â—orce of the gift by him that made the warrantie this is a lineall warrantie As if a man be seised of land of an estate taile to him and the heirs of his body begotten and make a feoffment of it and bind him and his heirs to warrant it and hath issue and dieth this warrantie descending upon the issue is a lineall warrantie And if lands Litt.
Sect. 719. be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the donee doth make a feoffment with warrantie and hath issue a sonne and a daughter and dieth this warrantie is lineall to the sonne and if the sonne die without issue male it is a lineall warrantie from the father to the daughter But if the brother in his life time release to the discontinuee c. with warrantie c. and after dieth without issue this is a collaterall warranty to the daughter Litt. Sect. 714. If lands bee given to the husband and wife and the heires of their two bodies engendred and they have issue and the husband discontinue and die and after the wife doth release with warrantie and die this is a lineall warrantie And if lands be given to a Co. super Litt. 375. man and a woman unmaried and the heirs of their two bodies and they intermary and are disseised and the husband doth release with warrantie and dieth and after the wife dieth this is a lineall warrantie to the issue for all the land And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue and the middle brother doth release with warrantie and die without issue and after the father dieth and after the elder brother dieth without issue and after the father dieth and after the elder brother dieth without issue so that the warrantie doth descend to the younger brother this is a â—neall warrantie to him And if a father give land to his eldest son and the heirs males of his body c. the remainder to the second sonne c. if the eldest son alien in fee with warrantie c. and hath issue female and dieth without issue male this is a lineall warrantie to the second sonne And in all these cases of a lineall warrantie if Litt. Sect. 711 712. Doct. St. 152 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple it is a barre without any assets for the rule is That as to him that demandeth fee simple by any of his Auncestors he shall bee barred and bound by a lineall warrantie that doth descend upon him unlesse hee bee restrained by some Statute But it doth not binde the right of an estate in fee taile without assets for in that case the rule is That as to him that demandeth fee taile by writ of Formedon in the Descendor he shal not bee barred by a lineall warrantie unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie and then it is a barre for so much onely as doth descend to him no more And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die in this case the issue of that issue is not barred by this warrantie and assets But if the issue to whom the warrantie doth descend bring his writ of Formedon and is barred by judgement by reason of the warrantie and assets in this case albeit he alien the assets afterwards yet the estate taile is barred for ever If tenant for life do alien in fee with warrantie or be disseised Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty And how such a warranty shall bar release to the disseisor with warrantie and die and the warrantie descend on him in reversion or remainder this is a collaterall warrantie So if the lessee for life be disseised and a collaterall Auncestor of him in reversion release with warrantie and die and the warrantie descend on him in reversion this is a collaterall warrantie for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. St. 152. land And if a man seised of lands in fee have issue two sonnes and the father dieth and the younger sonne doth enter and doth alien the land with warrantie and die without issue this is now a collaterall warrantie that is descended on the elder brother And if a sonne bee disseised of his own land and bring an 21 H. 7. 10. Assise and after the father doth release to the disseâ—sor with warranty and dieth this warrantie that doth descend to the sonne is a collaterall warrantie And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne and after he doth make a feoffment wich warrantie and die before the entrie of his sonne so that the warrantie doth descend this is a collaterall warrantie If there bee Litt. Sect. 707. father and two sonnes and the father is disseised and the younger sonne doth release wiâ—h warrantie to the disseisor and die without issue and then the father dieth in this case the warrantie now descended is a collaterall warrantie If a lease be made Co. super Litt. 388. for life to the father the remainder to his next heir and the father is disseised and doth release with warrantie and dieth this is a collaterall warrantie to the heire And if the husband discontinue the right of his wife and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die and after the husband dieth this is a collaterall warranty and a bar to her And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow 234. Kelw. 78. writ of Formedon if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty this is a collaterall warranty as if tenant in taile discontinue the taile and die having issue and the uncle of the issue doth release with warranty to the discontinuee and die without issue so that the warranty doth descend on the issue in taile this is a collaterall warranty So if such a discontinuee make a feoffment in fee or be disseised and the uncle release with warranty to the disseisor or feoffee and die without issue and the warranty doth descend on the issue this is a collaterall warranty If a tenant in taile have Litt. Sect. 708. three sons and discontinue the tail in fee and the middle brother doth release to the discontinuee with warranty and after the tenant in taile dieth this is a collaterall warranty to the elder brother If one have issue three sonnes and giveth land to the eldest Litt. Sect. 716. and the heirs of his body and for want of such issue to the middle and the heirs of his body the remainder to the third and the heires of his body and the eldest doth discontinue the
taile in fee with warranty and die without issue this is collaterall to the middle sonne In the same manner it is in case where the middle sonne hath the same land by force of the same remainder because his elder brother made no discontuance but died without issue of his body and after the middle brother doth make a discontinuance with warranty c. and dieth without issue this is a collaterall warranty to the youngest sonne And in this case if any of the sonnes be disseised and the father that made the gift c. releaseth to the disseisor all his right with warranty this is a collaterall warranty to the son upon whom the warranty doth descend If lands be given to A and the heirs of his body and Co. 8. 52. Litt. Sect. 713. for want of such issue to E his sister and the heires of her body and A doth make a feoffement with warranty and die without issue having two sisters E and S this is a collaterall warranty to E. If lands be given to a man and the heires of his body begotten Litt. Sect. 741. who taketh a wife and hath issue a son by her and the husband doth discontinue the taile in fee and dieth and after the wife doth release to the discontinuee with warranty and dieth and the warranty doth descend to the sonne this is collaterall to him If tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile doth release to the disseisor with warranty in fee and dieth without ifsue and the tenant in taile hath issue and dieth this is collaterall as to the issue If tenant in tail have issue two daughters and die and the elder enter into all to her own use thereof make a feoffment in fee with warranty and die without issue this warranty as to the other sisters part is collaterall but not as to her own If Co. super Litt. 373. the husband and wife tenants in speciall tail have issue a daughter and the wife die and the husband by a second wife have issue another daughter and discontinueth in fee and dieth and a collaterall Auncestor of the daughters release to the discontinuee with warranty and dieth and the warranty descend upon both the daughters this is a collaterall warranty to them If lands be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the father die and the brother release with warranty and die without issue this is collaterall to the daughter If tenant in taile make a lease for life the Litt. Sect. 738. remainder to another in fee and a collaterall Auncestor doth confirm the estate of tenant for life with warranty and die and after the tenant in taile die having issue this is a good binding collaterall warranty during the estate for life And in all these and Litt. Sect. 712. Co. super Lit. 374. Co. 10. 96. Stat. of Glouâ— ch 3. Co. super Litt. 365. Stat. 11 H. 7 chap. 20. such like cases of a collaterall warranty whether the right bee the right of an estate taile or the right of an estate in fee simple that is to be barred it is a bar without any assets for in this case the rule is That a collaterall warranty is a barre to him that demandeth fee simple and also to him that demandeth fee taile without any other descent of lands in fee simple so that the heir on whom the same warranty is descend can never have the land so warranted whiles the warranty doth continue in force but is bound thereby except it be in some speciall cases restrained by Act of Parliament as where the husband alone during his wives life or after her death being tenant by the curtesie make a feoffement by fine or deed of his wives land which shee hath by descent or purchase with warranty this will not barre her heire without assets of other lands in fee simple descended from the same Auncestor that made the warranty Or where a wife after her husbands death shall alone or with her succeeding husband alien release confirm or discontinue with warranty the land she holdeth in dower or in taile of the gift of her former husband or any of his Auncestors this warranty is voidable and will not binde with assets If the son purchase land c. and after let it to his father or any Litt. Sect. 699 700 701 702. Finch 82. Co. super Litt. 〈◊〉 10. What shall be said a warranty that doth begin by Dissâ—â—sin And wâ—at such a warranty doth work other Auncestor for years or at will and he by his deed doth infeoffe a stranger and that with warranty and after dieth whereby the warranty doth descend upon the heire this warranty doth commence by disseisin So if tenant by Elegit Statute Merchant Guardian in Chivalry or Soccage or because of Nurture make a feoffement with warranty and this warranty doth descend on his heir this warranty doth commence by disseisin So if one that hath no right at all enter into my land and make a feoffement to another with warranty So if one Coparcenor enter into the whole land and make a feoffement in fee with warranty this warranty as to the one moity doth begin â—y disseisin So if father and sonne purchase lands to them jointly c. and the father alien the whole to another with warranty c. and after the father dieth this warranty as to the one moity doth beginne by disseisin But if the purchase bee to them two and the heires of the sonne it is otherwise for if the sonne enter in the life time of the father the warranty is avoided for all but if hee doe not enter then as to the fathers moity it is a collaterall warranty And if the purchase be to the father and son and the heirs of the father and the father alien with warranty c. in this case the warranty is good for the whole If the father be tenant for life the remainder to his son and heir Co. 5. 80. super Litt. 366. 367. in fee and the father by covin and consent of purpose to bar the heir by a collaterall warranty maketh a lease for years to the end that the lessee should make a feoffment in fee that the father may release to the feoffee with warranty and all this is done accordingly and the father dieth and the warranty doth descend to the sonne in this case the warranty shall be said to beginne by disseisin But if the father in this case make a feoffement in fee with warranty and die this is a good warranty to binde the sonne albeit it be done of purpose to bar him So if one brother make a gift in taile to another and the uncle doth disseise the donee and infeoffeth another with warranty the uncle dieth and the warranty descendeth on the donor and
warrant it in the same manner and plight as it was in the hands of the feoffor and hee shall vouch as of lands discharged And therefore if grantee of a rent grant it to the tenant of the land on condition and the tenant doth make a feoffment of the land with warranty in this case the warranty shall not extend to the rent albeit the feoffment be made of the land discharged of the rent And if a woman have a rent-charge in fee and she doth intermary with the tenant of the land and a stranger doth release to the tenant of the land with warranty this warranty shall not extend to barre any action to be brought after the death of the wife for the rent But if in this case the tenant make a feoffment in fee with warranty and dieth the feoffee in a cui in vita brought by the wife shall vouch as of lands discharged at the time of the warranty made So if tenant in taile of a rent-charge purchase the land and make a feoffment with warranty and the issue bring a Formedon of the rent the tenant shall not vouch c. All those that are parties to the warranty i. such as are named Co. super Litt. 365. 5. 17. 12. Who may take advantage of a warranty And how And against whom it may bee taken Assignes in the deed regularly shall take advantage of the warranty as if one doth warrant land to another his heires and assignes in this case both the heirs the assigns may take advantage of it and they both may vouch or â—ebut or have a warrantia cartae so as they come in in privity of estate for otherwise the heire or assignes cannot vouch or have a Warrantia Cartae and yet he may rebut notwithstanding in divers cases But those that are are not named for the most part shall not take advantage of the warranty and therefore if land be warranted to I S and not to him and his heirs or to him and his assigns or to him his heires and assigns in these cases neither the heire nor the assignee may vouch or have a Warrantia Cartae and yet in some cases where it is so the assignee or tenant of the land may rebut The warranty annexed to an Exchange a Partition by Dedi Co. super Litt. 384. and by homage Auncestrell doth alwayes goe in Privity and therefore an assignee in these cases can take no advantage of it And yet in the cases of Exchange and Dedi an assignee may rebut But the assignee of a lessee for life may take advantage of the warranty in Law annexed to his estate If one grant to warrant land to another his heirs and assigns in Co. 5. 17. super Litt. 384 385. this case the heirs or assignes heire of the assignee or assignee of the heirs of the feoffee or assignees of assignees in infinitum shall take advantage of the warranty And therefore if one infeoffe I S to have and to hold to him his heires and assignes and warrant the land to him his heires and assignes and A doth infeoffe B and his heires and B dieth in this case the heire of B shall vouch as assignee to A. And if one infeoffe A and B Habendum to them and their heires and warrant the land to them their heirs and assignes and A die and B doth survive and die and his heire infeoffe C in this case C shall take advantage of this warranty as assignee If one infeoffe A with warranty to him his heirs and assignes and A doth infeoffe B and B doth reinfeoffe A in this case neither A or his assignes shall ever take any advantage of this warranty And yet if B infeoffe the heire of A he may take advantage of the warranty If one make a feoffment by deed with warranty to the feoffee his heirs and assignes and the feoffee doth make a feoffment over to another by word without deed in this case the second feoffee shall have all the advantage of this warranty for an assignee by word shall have the same advantage that an assignee by deed shall have If a feoffment be made with warranty to a man and his heirs and assignes and he make a gift in tail the remainder in fee and the donee make a feoffement in fee this feoffee shall not vouch as assignee but he must vouch his donor upon the warranty in Law and yet he may rebut If lands be given to two brethren in fee simple with warranty to the eldest and his heirs and the eldest die without issue in this case albeit the other brother be his heire yet he shall have no advantage at all by the warranty because he comes in above the warranty But generally all that claime under the warranty shall take advantage thereof by way of rebutter albeit they can take no other advantage by it If one make a feoffment to two their heirs and assigns and one of them doth make a feoffment in fee this feoffee in this case shall not take advantage as assignee An assignee of part of the land shall take advantage of a warranty Co. super Litt. 385. as if a man make a feoffment of two acres with warranty to him his heirs and assigns and the feoffee doth make a feoffment of one acre of it to another in this case the second feoffee shall take advantage of the warranty as assignee And therefore herein there is a difference between the whole estate in part and part of the estate in the whole or in any part for if a man have a warranty to him his heirs and assigns and he make a lease for life or gift in tail in these cases the lessee or donee shall not take advantage of the warranty as assignes but they may vouch the lessor or donor upon the warranty in Law But if a lease for life bee made the remainder Co. super Litt. 384. in fee such a lessee may vouch as assignee upon the first warranty If the father have a feoffment made to him and his heirs with warranty and he make a feoffment to his son and heire with warranty in this case the son may take advantage of the first warranty after his fathers death If a man infeoffe a woman with warranty Co. super Litt. 390. and they intermary and are impleaded and upon the default of the husband the wife is received in this case she may vouch her husband Et sic è converso If a woman infeoffe a man with warranty and they intermary and are impleaded the husband in this case shall vouch himself and the wife He that comes into the land meerly by act of Law in the post as 26 H. 8. 3. 22 Ass pl. 37. 29 Ass 34. Co. 3. 62 63. the Lord by Escheat or the like shall never take advantage of a warranty and therefore if tenant in dower infeoffe a villain with warranty and the Lord of the villaine enter or
wooll of his sheep for seven years Perk Sect. 90. Wooll this is a good grant If one being a Parson give to another all the wooll he shall have Fitz. Grant 40. for tithe the next year this is a good grant If one grant to another his horse or his cow in the disjunctive Bro. Done 19. Incertainty this is a good grant not withstanding this incertainty and the donee shall have election and by that make the grant good Any estate that a man hath in fee simple fee taile for life or years 2. Inrespect of the estate property possession of the grantor in any lands c. or any rent or profit apprender out of the same is grantable from man to man in infinitum And he that hath any such estate of any lands may charge it with any rent or profit to be taken out of it as long as the estate of the land doth last But an estate at will is not grantable over And if an estate be made to a man and his heires without the word Assignes yet he may assigne it at his pleasure for Assignes is included within Heires An Interesse termini i. a lease for years to commence in futuro is 22 E. 4. 37. Perk. Sect. 91. grantable before the terme doth begin whether it be a lease of the land it selfe or any rent or other profit out of it The interest or estate that a man hath by extent is assignable Co. 4. 64. from man to man at pleasure The reversion upon an estate taile is grantable And yet the tenant Co. 6. S. Geo. Cursons case Co. 1. Altonwoods case in taile in possession by the suffering of a common recovery may barre him in reversion of any fruit of it If an estate be made of land upon condition as if A make a feoffment Co. 1. 147. 10. 48 49. Lit. chap. Confirmation to B on condition that if A pay twenty pound he shall have the land againe in this case A and B together may at any time before the performance of the condition joine together and grant this land or charge it with any rent c. and this will be good for it is a maxime in law Fee simple land may be charged one way or other And in this case B may grant over his estate alone but it will be subject to the condition And if B grant a rent out of the land to a stranger and after the condition is performed and the feoffor enter in this case he shall avoid the rent But in this case A cannot grant Co. 1. 147. for he hath nothing but a possibility If one enfeoffe divers to the use of his sonne and heire upon condition and before the time of performance of the condition the father and sonne joine to grant or charge the land this is a good grant or charge If the tenant in taile and he that is next in remainder in fee joine Co. super Lit. 45. Co. 10. 48 49 in the grant of a rent charge in fee and after the tenant in taile doth die without issue in this case this is a good grant and charge against him in remainder And if A doth bargaine and sell land to B by indenture and before inrolment they doe joine to grant a rent charge to C by deed in this case this is a good charge and grant whether there be any inrolment or not And so if donor and donee in taile grant a rent charge out of the land then the donee die without issue in this case the grant is good to bind the donor If land be granted to two men and to the heires of their two bodies Co. super Lit. 182. begotten in this case albeit they have severall inheritances after their death yet neither of them can grant away his estate after his life for they are divided only in supposition of law One coparcener of a seigniory may grant his part to a stranger Perk. Sect. 73. Perk. Sect. 103. If two Jointenants be of a plow land and one of them doth grant to a stranger common of pasture for beasts without number to be taken in the same land this is void If two Jointenants be of a reversion one of them grant the whol Iointenants Perk. Sect. 80. Perk. Sect. 65. Dier 12. 33. this is void for a moity If a man grant or charge that which is none of his and that wherein he hath no property it being in the grantee or a stranger the grant is void And therefore if a man grant a rent charge out of the Manor of Dale or grant a reversion of land and in truth the grantor hath nothing in the Manor of Dale or in the land in this case the grant is void And albeit the granter doe afterward purchase the Manor or the land yet this will not make the grant good But if the grant be by fine or by indenture there in some cases it shall be good by way of estoppell And in this case Estoppell albeit the party recite that it is his owne yet this will not mend the cases And therefore if a man recite that he hath a rent of tenne pound a yeare and then grant five pound a year parcell of it in this case if he have no such rent the grant is void A Shepherd Bailif or Parker cannot give or grant away the Servant Bro. Done 56. 4. goods of his master without authority And yet it seemes the servant of a Taverner or Mercer may give or grant his masters Wine or Wares And if a wife give or grant the goods of her husband Husband and Wife this is a good gift or grant untill the husband disagree to it and by his agreement it is made good for ever If a man have a lease for yeares of land and make a lease for life Plow 524. 525. of it or charge it for longer time then the lease for yeares doth last in this the grant is good for so long as the lease for yeares doth last and no longer But if he make a lease for life and give livery of seisin he doth forfeit his estate Regularly a man cannot grant or charge that which is not in Co. super Lit. 214. Perk. Sect. 65. 86. his owne possession albe it he have a right to it And therefore if a man be disseised of his land and before he hath entred into or recovered the land he doth grant or give the land or his right to the land to a stranger or grant a rent charge out of the land to a stranger in these cases the grants are not good And yet such grants by fine may be good by way of estopell And by a release also the right may be extinct But if one that hath a reversion upon an stoppell estate for life and he grant a rent issuing out of this land in this Perk. Sect. 92. 98.
Co. super Lit. 46. case the grant is good and the charge shall fasten upon the land after the estate of the tenant for life is ended And if a man grant common or rent notwithstanding that a stranger take the rent or use the common at the time of the grant yet this grant is good for a man cannot be out of possession of these things but at his pleasure †Hil. 18 Jac. B. R. per. 2 Justices And if a lease for years be made to me I may grant away my estate before my entry And if the lease be to begin at a day to come I may assigne over my interest before the day come for in this case the interest is in me from the time of making of the lease * Perk. Sect. 92 93. Fitz. Done 3. Bro. Done 13. Dier 90. 30. Co. 4. 62 63. Dier 305. 20 H. 6. 22. Perk. Sect. 59. Co. 11. 50. Also I may give or sell my goods that I have not in possession and therefore if a man take my goods out of mine or another mans possession I may afterward give or grant these goods to him or another man and this grant or gift is good A lessor cannot give or grant the trees growing on the ground Tenant for life Trees of his lessee for life or yeares without the licence of the lessee except they be first cut downe by the lessee or some other for then he may And if there be lessee for life and the lessor give the trees growing on the ground and after the lessee for life dieth in this case the donee cannot take them for that at the time of the gift a property of them was in the lessee But if a tenant in fee simple give or grant the houses standing or trees growing on the ground he hath in his possession in this case the grantee or donee may take them after the death of the grantor and that albeit they be not cut or taken downe before his death And yet if the tenant in taile give or grant the trees growing upon his intailed land and Tenant in taile the donor die before the trees be cut in this case the donee or grantee cannot cut them afterwards Howbeit if such a tenant in taile give or grant his emblements of corne growing on the Emblements ground the donee may cut and take them after the death of the tenant in taile And if the tenant in taile give or grant his trees and die before they be cut and afterwards before the issue in taile enter into the land the donee or grantee cut them and take them away in this case the issue in taile can bring no action of trespasse against the donee or grantee for the trees But perhaps if the trees be not removed off the ground he may take them If two coparceners be of an advowson and the one doth present Presentation Dier 35. 15 H. 7. and then he doth grant the next presentation this is a good grant but by this grant doth passe the next he hath to grant for his companion must have the next So if one be seised in fee of an advowson and he hath a wife and he grant the third presentation this is a good grant but it shall be taken for the third he may grant which is the fourth for the wife is to have the third for her dower If a man have granted a thing once he cannot afterwards grant 3. In respect of a former grant of the same thing it again And therfore if a man give or grant me a horse first by word Perk. Sect. Dier 35. 350. Lit. Bro. Sect. 298. Perk. Sect. 102. of mouth and after grant him to me by deed this second grant is void and therefore if there be any fault in this grant in writing it is not materiall And if a man grant to me common of pasture without number in his ground and after make the like grant to another this second grant is void as to me albeit it be good against the grantor And if one grant the next presentation to a Church after the death of the present Incumbent and after grant the same to another or make a lease of land to one for tenne years and after make a lease of the same land to another for the same tenne years or give a horse to one and after give the same horse to another in all these cases the second grant is void But if the first grant or gift be only of part of the thing granted afterwards or of part of the time only the second grant will be good for the overplus And therefore if one be seised of a Manor and demise ten acres of the demesne to tenne years and after demise the whole Manor to another for twenty years this is a good grant for the overplus of the Manor besides the tenne acres presently and for the whole Manor for the last tenne years So if the second grant be to beginne after the first is determined it is good And if the second be such as may be satisfied and not impeach the former both shall stand good And therefore if one that hath an Advowson grant the next Presentation to one and after he doth grant the next Presentation to another and doth not say after the death of the Incumbent in this case the second grant is good and the grantee thereby shall have the second avoidance after the death of the present Incumbent By the grant of an acre of land or of any other thing by the 4. In respect of naming or description of the thing granted Milnaming or Misrecitall Co. 4. 122. Perk. Sect. 114. 116. Co. 10. 106. 107. 11. 47. a Plo. 190. b Co. super Lit. 46. See also Co. 2. in Lanes case which doth seeme to warrant this opinion also Dier the grant is good in a common persons case Bro. Grant name whereby it is called the reversion of that thing if the grantor have no more but a reversion will passe and this mistake will not hurt But it is not so è converso a And yet some have said if one grant a thing in possession by the name of the reversion of the thing this is good to passe the possession Quod non est lex b For if one make a lease for years and before the lessee enter the lessor grant the land by the name of the reversion or the land this grant is void If If one make a lease for life of the demesnes of a Manor rendring rent and after he doth grant the Manor by the name of the Manor this is a good grant for the reversion of the demesnes as well as for the residue of the Manor But if one grant common by the name of the reversion of the common it seemes this is not good And yet if one have common and grant it for life and during that estate he doth grant the common by the name
the common law If a lease be made to one for life the remainder to another in Lit. Sect. 578. taile the remainder over to the right heires of the tenant for life and the tenant for life doth grant his remainder in fee in this case there needs no atturnment of the tenant in taile but the remainder will passe by the deed presently without any atturnment at all If one lease for life the remainder for life and after the lessor Lit. Sect. 575. release all his right in the land to him in remainder for life in this case there needs no atturnment of the lessee for life to perfect this release If two Jointenants or more make a lease for life rendring rent Lit. Sect. 574. and one of them doth release the rent to the other in this case there needs no atturnment to make the rent to passe In all cases where the grant is in the personalty there Agreed in Curnocks case M. 3 Jac. Co. B. needs no atturnment And therefore in grants of annuities which doe charge the person of the grantor only and not his land there needs no atturnment And in all cases where there is an atturnment in law there needs no atturnment in deed If there be Lord mesne and tenant and the Lord grant the fee Lit. Sect. 555. of the Seigniory in this case the mesne and not the tenant must 3. By whom anatturnment may must be made Or not atturne If one make a lease for life and then grant the reversion for life Co. super Lit. 319. and the lessee atturne and after the Lord grant the seigniory in this case it seemes the grantee and not the first lessee for life must atturne If there be Lord and tenant and the tenant make a gift in taile Lit. Sect. 554. 556. Co. super Lit. 311. or lease for life of the land and after the Lord grant the services to a stranger in this case the tenant for himselfe and not the tenant in taile or for life must atturn For it is a maxime in law That no man shall atturne to any grant of any seigniory rent service reversion or remainder but he that is immediately privy to the grantor But to the grant of a rent seck or rent charge issuing out of such land as before the under-tenant in taile or for life and not immediate tenant himselfe must atturne If there be tenant for life the remainder in fee and the Lord Lit. Sect. 556. grant the services to a stranger in this case the tenant for life and not him in remainder must atturne If there be tenant for life the remainder in taile and he in the Idem reversion after their estates doth grant his reversion to a stranger in this case if either of them need to atturne it must bee the tenant for life If a woman that hath a husband be to atturne the husband Co. super Lit. 312. Lit. Sect. 558. may and must doe it for her and the atturnment of the husband Husband and wife for the wife whether it be expressed or implied will binde the wife If one make a lease for yeares of land the remainder for life Lit. Sect. 571. Co. super Lit. 316. 317. and after the lessor doth grant the reversion in this case the tenant for life or yeares either of them may atturne If a rent charge be issuing out of land and the tenant be disseised of the land in this case the disseisor must atturne But in case of Co. super Lit. 312. the grant of a rent service the disseisee may atturne if he will for the privity is betweene the Lord and the disseisee only If a man make a lease for life to I S of land and after grant Co. super Lit. 312. a rent charge out of it to I D and after he grant over this rent to another in this case the lessor and not I S must atturne The tenant in dower after shee hath assigned over her estate and Co. super Lit. 316. 8 E. 4. 10. not the assignee must atturne to the grant of the reversion And yet some hold that the assignee also may atturne The same law is also of the tenant by the courtesie but it is not so in other cases for if the reversion of lessee for life be granted and lessee for life assigne over his estate the assignee and not the lessee must atturne If lessee for life assigne over his estate upon condition and then Co. super Lit. 316. the reversion is granted in this case the assignee and not the lessee for life must atturne If a tenant in fee simple that ought to atturne to a grant of a Co. super Lit. 315. Perk. Sect. 231. Seigniory or rent die before he make an atturnment his heire must atturne and an atturnment made by him is good So if he grant away his land before he make his atturnment his grantee may atturne and an atturnment made by him will be good enough If a Lord of a Manor make a lease of his Manor for life or years Co. super Lit. 311. and the freeholders and others doe atturne to the lessee and after he grant away the reversion of the Manor to a stranger in this case the lessee for life or yeares must atturne and this will bind all the freeholders If there be Lord and tenant by homage fealty and rent and Co. super Lit. 311. the tenant is disseised and then the Lord granteth the rent to another in this case the disseisor and not the disseisee must atturn but if he grant the whole Seigniory the disseisee may atturne A voluntary Atturnment where it is needfull may be made by Infant Co. super Lit. 315. an infant or one that is deafe and dumbe who may doe it by signes But one that is non compos mentis cannot make an Atturnment Non compos mentis The Atturnment must always be made to the grantee of the reversion 6. To whom an atturnment may must be made Or not Co. super Lit. 310. 312. 20 H. 6. 7. rent c. according to the grant whether the Atturnment be expresse or implied But if divers doe take by the grant the atturnment may be made to one of them and this shall avail the rest as if a reversion or a rent be granted to two or more and the tenant atturn to one of them this is good to vest and settle the thing granted in them all according to the grant And if a lease bee made by deed of a reversion to A for life the remainder in fee to B and the tenant atturn to A this is a good atturnment to settle the remainder in B. But if the tenant atturn to B during the life of A this is not good for A howbeit if the tenant for life die before the atturnment be made in this case the atturnment
1. 44. Plow 524. lands or tenements may by deed or writing in the country or without writing by word of mouth make a lease of it for what lives or years he will And hee that is seised of an estate in tail of any lands or tenements may make any lease out of it for his owne life but not longer unlesse it be by fine or recovery or it be such a lease as is warranted by the Statute of 32. H. 8. whereof see more infra And he that is seised of lands or tenements of any estate for his own or anothers life may make what lease for years he will of it and it will be good as long as the lease for life doth last And hee that is possessed of lands or tenements for years may make a lease of it for all or part of the years and these are good leases The tenant for life or years may also assigne over all their estates if they please And if such tenants make leases for longer time as if lessee for years make a lease for life it seemes by this the land will passe for life if the term of years last so long But if he give livery of seisin upon it as he must to make the lease for life good this is a forfeiture of the estate for years Forfeiture Infant If an infant be seised of land in see simple and he make a lease 9 H. 7. 24. 18 Ed. 4. 2. Plow 545. for years of it rendring no rent this lease is void But if there be a rent reserved upon the lease then the lease is but voidable and may by the acceptante of the rent by the infant after his full age bee Acceptance made good Jointenants tenants in common and parcenours may make leases Litt. cap. tenant in common F. N. B. 62. G. Iointenants Tenants in common for life or years of their own parts and purparties at their pleasures and these leases will binde their companions And one coparcenour or tenant in common may make a lease of his part to his companion if he will If a feoffment be made upon condition and before the time of performance of the condition the feoffor and feoffee doe joyne to make a lease for life or years of the land this is a good lease A man that hath an estate in land to him and his wife and his Bro. Leases 58. heirs may make what lease he will of the land and this will be good against all men but his wife onely and that for her time If there be lessor in fee and lessee for ten years in this case they Co. 10. 49. two may joyn together and make a lease for lives or for any terme of years and this is good A disseisee cannot make a lease of that land whereof he is disseised Plow 133. untill he make his entry or recover the possession of the land again So neither can a woman that hath recovered the third part Bro. Scire facias 36. of her husbands land in a writ of dower make any lease of it before she be in possession by execution And yet if a lease be made Co. super Lit. 46. to me for years I may make a lease of part or an assignement of all the term before I have made my entry into the land demised So if the father die and the son make a lease to a stranger of the land Plow 137. 142. descended to him before his entry this is a good lease but if a stranger had entred and abated into the land and then the sonne had made the lease contra In some cases also such persons as are not seised in see simple c. Co. 5. 5. Dier 357. Co. 62. 8. 70. 1. 175. See in Leases made by tenant in tail infra nor able to derive such estates for life or years out of their owne estates By speciall power or proviso to make leases may lawfully notwithstanding make such leases for life c. And this is sometimes by some speciall Act of Parliament enabling them so to doe And hence it is also that a tenant in tail may make leases for three lives or twenty one years And sometimes it is by some speciall power or authority that is given or reserved by and to the party himself that had the see simple in him or given to some other to doe it in his name and leases thus made may bee good And therefore if any Act of Parliament enable a tenant in tail or a tenant for life to make leases for three lives or twenty one years leases that are so made in pursuit of that authority are good And if a man be seised of land in fee and convey it to the use of himself for life or in tail with divers remainders over with a proviso that it shall be lawfull for him or any such tenant in tail to make leases for twenty one years in this case he or they may make such leases and they will be good But in both these cases care must be had to pursue the authority strictly i. that the leases made be according to the power and direction given by the statute or proviso for if it differ and vary ever so little from the sense and meaning of the same the lease will not be good And therefore in the case before of a power to make leases for twenty one years if the party make more leases for twenty one yeares at one time then one they are all void but the first because it is against the intent of the parties though it be not against the words And so if the power be to make leases for three lives he cannot by this make a lease for ninety nine yeares if three lives so long live But if the power be thus Provided c. that he may make any lease in possession or reversion so as it doe not exceed the number of three lives or twenty one years in this case a lease may be made for ninety nine years if three lives live so long But where uses are raised by way of covenant and in the deed there is a proviso that the covenant or for divers good considerations may make leases for years in this case this power is void and therefore no lease can bee made hereupon neither will any averment help in this case And if a man have a Averment letter of Atturney or other authority to make leases for another and doe make them accordingly such leases are good But herein also caution must be had of three things 1. That the authority be Co. 9. 76. good 2. That he that is the Deputy or Atturney doe pursue the authority strictly 3. That he doe it in the name of his master and not in his own name A lease made for a thousand days moneths or weeks is as good Co. 6. 72. 14 H. 8. 13. 2. In respect of the manner of the agreement
Plow 421. 422. Co. 1. 155. is taken between leases made by matter of record and by writing and leases that are made by word of mouth for if the second lease be made by fine deed indented or poll albeit it be but for the same or for a lesser time and albeit it be a lease of the land it self and not of the reversion yet it will passe the rent reserved upon the first lease if the first lessee atturn and so also it will do without atturnment where atturnment is not needfull But if the second lease be made by word of mouth it is otherwise for a reversion and a rent in this case will not passe without deed and therefore a grant by word doth not passe them And if the second lease be by fine or deed indented then also it will Estoppel work by way of Estoppel both against the lessor and against the lessee so that if the first lease happen by any means as by surrender or otherwise to determine before it be run out then the second lessee shall have it and if there bee any rent reserved upon the second lease the lessee must pay it from the time of the making of the lease And therefore if one make a lease of Dier 112. Plow 432. land to A for ten years and after make a lease to B of the same land from Michaelmas next for ten years and before Michaelmas the first lessee doth purchase the fee simple so that now by this means his term is drowned in this case the second lease shall begin at Michaelmas So if one make a lease to A for twenty years and A make a lease of the land to B for two years rendring Co. 4. 53. rent and after A makes a lease for the rest of his time to C by deed this lease if the lessee for two years doe atturn is a good lease of the rent and reversion and so it is also without Atturnment if there be any consideration given for it for then it is also a good lease for all the rest of the term after the two years So if one make a lease to A for twenty years if he Co. 1. 155. Plow 432. 434. Hil. 6 Jac. Adjudge Finch versus Vaughan live so long rendring rent and after he doth make a lease to B by Indenture for eighty years to begin presently or grant the reversion to beginne at a day past or the like in all these cases if the first lessee atturne the rent will passe but if not it will be a good lease for the land for so many of the yeares as shall bee to come after the first lease ended But if the second lease bee by paroll without a deed the reversion as a reversion will not passe and the grant will bee void if there bee nothing else to help it And in cases where the second Dier 112. lease is void albeit the first lessee surrender his estate or his estate end by a condition yet the second lease is not hereby made good But if the second lease for yeares after another Co. 2. 35 36. lease for life or years be made for mony so as it may be said to passe by way of bargain and sale this may help the matter for in this case albeit it be by word onely it may passe the reversion and the rent also but in most cases it is good for the remainder of the term after the first lease ended And if the second lease be to begin after the end of the former lease in this case the former lease is no impediment at all to the validity of the latter lease but the latter lease is good notwithstanding Any person whatsoever of full age that hath any estate of inheritance Stat. 32 H. 8. cap. 28. Co. super Lit. 44. in fee taile in his owne right of any lands tenements or 5. What Leases or other acts may be made or done by a tenant in tail And what leases made by such a tenant shall be good to binde the issue or him in remainder or others after the death of the tenant in tail And how they shall bind hereditaments may at this day without fine or recovery make leases of such lands for lives or years and such leases shall be good so as these conditions and incidents following be therein observed and kept 1. Such leases must be by deed indented and not by deed poll or by paroll 2. They must be made to begin from the day of the making thereof Co. 5 6. Dier 246. or from the making therof And therfore a lease made to begin from Michaelmas which shall be three years after for twenty one years or a lease made to begin after the death of the tenant in tail for twenty one years is not good But if a lease be made for twenty years to begin at Michaelmas next it seems this is a good lease 3. If there be an old lease in beeing of the land the same must Co. 5. 2. be surrendred or expired and ended within a year of the time of the making of the new lease and this surrender must be absolute and not conditionall also it must be reall and not illusory or in shew onely For factum non dicitur quod non perseverat 4. There must not be a double or concurrent lease in being at Co. 5. ◠one time as if a lease for years bee made according to the statute he in the reversion cannot afterwards expulse the lessee and make a lease for life or lives or another lease for years according to the Statute nor è converso But if a lease for years be made to one and Sparks case Trin. 4 Jac. B. R. afterwards a lease for life is made to another and a letter of Atturney is made to give livery of seisin upon the lease for life and before the livery made the first lease is surrendred in this case the second lease is good 5. These leases must not exceed three lives or twenty one years Co. 5 6. Dier 246. from the time of the making of them And therefore if tenant in tail make a lease for twenty two or for forty years or for four lives this lease is void and that not only for the overplus of time more then three lives or twenty one yeares but for that time of three lives or twenty one years also And it hath been resolved that if tenant in tail make a lease for ninety nine years determinable upon three lives that this is not a good lease But if a lease be made Co. 1. by a tenant in tail for a lesser time as for two lives or for twenty years this is a good lease And if a lease be made for four lives and it happen that one of the lives die before the tenant in tail die yet this accident will not make the lease good but it remains voidable notwithstanding 6. These leases must be of
surrender the terme to C who hath the inheritance and the Church become void before the end of the terme in this case the grant is good to B and he shall have the next avoidance for a man cannot derogate from his owne grant So if A be lessee for years and he grant a rent charge to a stranger and after surrender his terme to the lessor in this case albeit the terme be extinct yet the rent doth continue and the stranger shall have it duing the terme So if A have a rent charge out of the land of B and acknowledge a Statute to C and then release the rent to B in this case albeit the rent be gone as to A and B yet it is in esse as to the conusee and he may extend it If a man be seised of a great wood and grant to I S six hundred Co. 5. 24. coards of wood out of the same wood to be taken by the assignement of A in this case if A will not upon request assigne where the wood shall be taken yet the deed will not lose his effect but I S may take it without assignment If A be lessee for life on condition to have see and he make a Co. 7. 14. lease to B for yeares and after he performe the condition and so his estate for life is turned into a fee simple in this case the lease for years is good still notwithstanding but otherwise it is in case of the King If A tenant in taile enfeoffe B on condition to the use of A in Co. 1. 147. 148. 11 H. 7. 21. fee and A had granted a rent charge or acknowledged a Statute which by the Statute of 1 R. 3. cap. 5. was extended and after A had performed the condition in this case albeit the estate had been changed yet the interest of the grantee or conusee had continued If A be tenant for life the remainder to B in taile the remainder 5 E. 4. 2. Pethouse Cranes case Mic. 36. 37 El. Co. B. to A in fee and A doth grant a rent charge or acknowledge a Statute and die in this case and hereby the grant is not become void but if B die without issue the heire of A shall be charged If a corody be granted for a service to be done the omission of Davis Rep. 1. the service doth determine the corody If one grant lands with his daughter in frank mariage or goods 20 E. 4. ult Dier 13. 126. with his daughter in mariage and after the mariage is dissolved and they are divorced in this case the grant is now become of no force Cessante causa cessat effectus If one man grant to another an office of charge only to which there is no benefit or fee incident in this case he may avoid and 2. Where a man may avoid his own grant Or not And when Bro. Grant 103. determine his owne grant at his pleasure without any cause given But if there be any fee or profit incident to the office then he may not avoid the grant of it or put out the officer without some cause of forfeiture and if he doe the grantee may have an assise And yet in this case also he may put him out of the office albeit he may not deprive him of the fee or profit incident thereunto If one grant a Ward to another to mary or for his service it Bro. Grant seemes he may not afterwards avoid this grant But if one grant him to another for instruction or education contra If one make a lease for years of his land rendring rent and after grant the rent to I S and the termor atturne and after the lessor Bro. Grant 128. accept of a surrender of the estate of the termor yet this doth not avoid the grant of the rent but the same shall continue still If a disseisor grant a rent common or other profit apprender out of the land and after the disseisee doth enter and enfeoffe him Lit. Sect. 477. of the land in this case the rent is avoided and the common is gone But if the disseisee release to the disseisor in this case he shall not avoid his owne grant An Infant and other disabled may impeach and avoid their own grants in divers cases which see before in Grant A deed of feoffment c. in some cases is holpen and a fault 3. Where and by what meanes a feoffment gift grant or lease or the estate thereby made being void or voidable at the first may become good by matter ex post facto Or not therein cured by the making of livery of seisin For which see Feoffment and Lease But an atturnment will not help the grant of a reversion c. for it is a maxime in law That atturnment cannot make a void grant good If a tenant in taile make a lease for life or years of land and this lease is voidable and after the tenant in taile doth suffer a common Co. 1. Capels case Dier 373. Co. 1. 48. 76. recovery of the land to whomsoever it be by this the lease is affirmed made good during the terme as wel against the issues heirs by the entaile as against him in reversion or remainder And so it is of a charge of a rent upon the land And if tenant in taile make a lease of the land or charge it and after levy a fine of the land to a stranger by this the lease or charge is become good against the issue in taile also If a tenant in taile make a lease for forty yeares rendring rent So held in the Exchequer Hil. 16. Jae and die and his issue doth lease to another by indenture for twenty one yeares rendring rent to begin after the expiration forfeiture or surrender of the first lease it is said this doth affirme the first lease Sod quere Acceptance of rent reserved on a lease for life or yeares which is voidable only and not void may make the lease good A feoffment gift c. that is made by duresse or manasse and Bro. Defeasance 17. therefore voidable may by another deed of defeasance afterwards made between the same parties become good Also grants leases and the estates thereby made that are not good may be made good and perfected by release or confirmation For which see Release and Confirmation A feoffment may be good against some persons and void against Co. super Lit. 46. 7. 8 others but cannot cease and revive and be good and void at severall 4. Where when a feoffment gift grant or lease may begood for one time and void for another and good against one person but void against another and good in part and void in part Or not times as a lease for years or a grant of rent c. may in many cases for a grant may be suspended and a lease for yeares may cease and revive againe as if
is not a good exchange And by the same reason it should seeme if lessee for twenty yeares of his land exchange with another for other land for forty yeares that this should not be a good exchange o Perk. Sect. 276. But if lessee for life be of an acre of land and he give another acre of land to his lessor in fee taile in exchange for a release of all his right in the acre that he holdeth for terme of his life To hold to him and the heires of his body engendred this is a good exchange p Co. 11. 80. Or if tenant for his owne life exchange with him that is tenant in taile after possibility of issue extinct this exchange is good q Perk. Sect. 275. 19 H. 6. 27. And yet if an estate for life be expressed to the one party upon the exchange and no estate is expressed to the other party it is said that this exchange is not good and yet where no estate is expressed the party shall have an estate for his owne life But in these cases it is not necessary that the parties to the Co. super Lit. 51. Perk. Sect. 289. Lit. Sect. 65. Perk. Sect. 280 281. Husband and wife Tenant in tail exchange be seised of an equall estate at the time of the exchange made for if tenant in taile or husband in right of his wife exchange their land in fee simple with another for lands he hath in fee simple this is a good exchange untill it be avoided by the issue or the wife r Idem Neither is it necessary that both estates be in possession for one may grant an acre in possession in exchange for an acre in reversion and this exchange is good s Idem Neither is it necessary that there be an equality in the value or quantity of the lands exchanged for if the land of one of the parties be worth one hundred pound and the land of the other but tenne pound or the land of one of the parties be one hundred acres and the land of the other but tenne acres if the estates given be equall the exchange is good t Idem Neither is equality in the quality or manner of the estates requisite For if two Jointenants be in fee of an acre of land and they grant that acre to another in exchange for other lands To have and to hold a moity to one of them and his heires and a moity to the other and his heires which is an estate in common or two men give lands in exchange to A and his heires for lands from A to them two and their heires albeit the one party hath a joynt estate and the other a sole estate yet the exchange is good The like law is if the land of one of the parties be of a defeasible title and the land of the other of an undefeasible title this exchange is good till it be avoided The fifth and last thing required in a good exchange is that there Co. super Lit. 50 51. Co. 1. 98. 105. Perk. Sect. 284. 286. 292. 289. be an execution and perfection of the exchange by entry or claime 5. In respect of the execution of it in the life time of the parties viz. That both the parties to the same exchange do enter into the things taken in exchange if they be such things as they may enter into for untill the exchange be executed by entry or the like the parties thereunto have no freehold in deed or in law in the things exchanged albeit the same things do lie in one County And if either of the parties die before he enter into the lands by him taken in exchange hereby the whole exchange is become void if his heir will but if one of the parties enter he shall not first begin to avoid the exchange But if the parties enter at any time during their lives it is sufficient unlesse the possession be before devested by an elder title as by entry for a condition broken entry by a disseisee or his heir or the like and not revested again before the entry As if an exchange be had betweene two of land and before their entry by force of the exchange they are or one of them is disseised of the land exchanged and the disseisor die seised thereof and then they enter according to the exchange and put out the heir of the disseisor this shall not be said to be an execution of the exchange but if the disseisee have recovered the same land against the heir of the disseisor by writ of entry and have execution then he may execute the exchange by entry And in case where a reversion rent or seigniory is granted in exchange it must be perfected and executed by the atturnment of the tenant in the life time of the parties otherwise the exchange is not good but in this case after atturnment is made it seems the exchange is perfect without any entry or claim If two Parsons exchange their Churches and resigne them into Perk. Sect. 257. the Bishops hands this is not a perfect exchange untill they be inducted and therefore if either of them die before they be both inducted the exchange is void Where a deed shall take effect as an exchange there must be all Perk. Sect. 255 256. Fitz. Exchange 14. Perk. Sect. 272. the conditions before mentioned in the case And yet note that 4. When a deed shall take effect as an exchange Or not where one thing is granted for another in the nature of an exchange and for some of the causes aforesaid the things cannot passe by way of exchange there they may passe notwithstanding by way of grant and the deed may take effect to other purposes albeit it may not enure and take effect as an exchange And therefore if two be seised of severall acres of land and the one of them by deed doth give his acre to the other and the other his acre to him without any word of exchange and each of them doth make livery of seisin to the other in this case albeit the acres will not passe by way of exchange yet will they passe by way of grant And in this case if no livery of seisin be made either of them shall hold the lands granted at will only And in like manner it is if two agree to exchange land and after each of them levy a fine or make a feoffment of the land to other by this the land will passe each to other but not by way of exchange So if A and B his wife and C and D his wife agree to exchange lands and A and B enter into the land they are to have in exchange and then they doe make a feoffment of their own land unto C and his father and not to C and D his wife this shall not enure as an exchange and therefore C and D may enter upon their own land again but the
Co. super Lit. 338 Per sect 600 Bro. sur 4. surrender A lessee for life or years may surrender to him that is next in remainder in fee simple or fee tail or to him in reversion in fee and this is a good surrender and a surrender as it seems may be made to the grantee of the reversion before atturnment so as atturnment be afterwards made And in case of the surrender of Dier 251. 358. 280. an estate for life there needs no livery of seisin as in case of the grant Livery of seisin of an estate for life A lessee for years of a term to begin at a day Perk. Sect. 601 602. 4 H. 7. 10. Co. 6. 69. to come cannot surrender it by an actuall surrender before the day the term begin as he may by a surrender in law a Perk. Sect. 600 601 602 603. If lessee for life be disseised or lessee for years be ousted and before his entry or the getting of the possession again he surrender his estate to him in reversion this surrender is void So if a woman that hath title of dower surrender it to him in reversion before she hath recovered it this surrender is void And yet if lessee for years after his term is begun before his entry when no body doth keep from him the profits doe surrender his estate it seems this is a good surrender but if another enter before him and keep him out it seems otherwise If there be lessee for years the remainder for life the remainder or reversion in fee the lessee for years be outsted he that Perk. Sect. 605. Dier 251. outsted him die seised then the lessee for years enter and then the tenant for life surrender to him in remainder or reversion in fee this is not a good surrender for there is in this case but a bare right of remainder for life and in fee but if the lessee for years had not been ousted it had been a good surrender If there be lessee for years the remainder for life the remainder in fee the lessee for years may surrender to the lessee for life and so may the tenant for life to him in remainder or reversion in fee but if there be tenant for life the remainder for life the remainder in fee in this case the second tenant for life cannot surrender to him in remainder in fee. If a lease Perk. Sect. 588. bee made for life or years to A the remainder for life to B the remainder in fee tail to C and the first tenant for life or years doth surrender to C or to the lessor B being the next in remainder for life being then living this is not a good surrender neither can it take effect as a surrender in respect of the intervenient estate And so some say the law is if the middle remainder be but for years only as if a lease be made for years the remainder for years and the first termor surrender his interest to the lessor this is no good surrender Sed quere For it should seem that a future iuterest will Dier 112. Plow 190. Dier 93. Plow 432 433. no more hinder an actuall surrender of the first lessee then a surrender in law And so also it seems the law is for a concurrent lease which for the latter part of it is in the nature of a future interest But if in this case it fall out the middle remainder be void as where a lease is made to A for life or years the remainder to a monk who is a person uncapable for life or years the remainder to I S in fee in this case A the first tenant may surrender to him in remainder in fee and the surrender is good If lessee for 20 years make a Perk. Sect. 604. 14 H. 7. 3. Plow 541. Bro. Sur. 16. lease for 5 years and the lessee for 5 years enter and after the lessee for 20 years surrender to him in reversion or remainder this is a good surrender So also if the two lessees join in the surrender So also if the first lessee surrender first and the lessee for 5 years surrender after But if the lessee for five years surrender to him in the reversion or the remainder before the surrender of the lessee for 20 years this cannot take effect as a surrender for two causes 1. Because there is a remnant of the term as an intervenient estate to hinder the drowning of the terme 2. Because there wants a privity between the lessee for five years and him in reversion If tenant Bro. sur 9. Fitz. sur 10. in fee simple surrender to the Lord Paramount of whom the land is held this can never take effect as a surrender unlesse it be in a speciall case where the Lord hath cause to have a Cessavit So if tenant in tail surrender to him in remainder or reversion in Perk. Sect. 590. Perk. Sect. 589. Co. super Lit. 42. 3. 61. Perk. Sect. 590. fee simple this cannot take effect as a surrender So if lessee for life surrender to him in remainder for years or tenant for the life of B surrender to him that hath an estate for the life of C these are void surrenders for the estates of them to whom they are made are not capable of such surrenders for they are not greater then the estates of the surrendrors and therefore not able to drown the estates surrendred And yet if lessee for the life of another or for his own life surrender his estate to him in remainder that is tenant for his own life this is a good surrender for an estate for a mans own life is greater in judgement of law then an estate for another mans life And hence it is that if a lease bee made to two for their lives the remainder to a third person for his own life and one of the first tenants for life surrender his estate unto him in remainder for life this is a good surrender for a moity If lessee Co. 2. 66. for life or yeares surrender to him in remainder or reversion that hath no good estate in the remainder or reversion as where the remainder or reversion is granted by word only or being granted by deed there is no atturnment of the tenant to the grant or the the like this surrender is not good And yet if tenant in taile Co. super Lit. 338. make a lease for life whereby he gaineth a new reversion but defeasible and the tenant for life doth surrender to the tenant in tail this shall be a good surrender So if a woman inheritrix have a husband and they have issue a sonne and the husband dieth and she take another husband and he letteth the land for life and the wife dieth and the tenant for life doth surrender his estate to the second husband this is a good surrender to most purposes If a feme sole be seised of land in fee
and she make a lease thereof Perk. Sect. 622. to a stranger for life and then take a husband and the lessee surrender to the husband this is no good surrender neither can it enure so because he to whom it is made hath not the reversion in his own but in his wives right It is further also required in every good surrender that if it be Bro. sur 2. 8. Fitz. Partition 5. Perk. Sect. 583. 2. In respect of the place where it is made And where the surrender of lands in one County may be good for the lands that doe lie in another County Or not 3. In respect of the matter or thing And of what things a surrender may be made Or not made by word and without deed that then it be made in the same County where the land to be surrendred doth lie but by writing a man may make a surrender of lands that doe lie in any other County and in what place soever it doth lie And a surrender may be by word or writing of lands lying within the same County in any place out of the land And therefore if tenant for life surrender to him in reversion in any place out of the land within the same County and the surrendree agree to it the freehold is in him presently 3. That it be made of such things of which a surrender Bro. surrend in toto Per. chap. Sur. in toto Co. 5. 11. super Lit. 338. may be made For surrenders may not be made of estates in fee simple or fee taile nor yet of rights or titles onely of estates for life or years nor yet of part of an estate for life or years as if a man have a lease for ten years he cannot surrender the last seven years and keep to himself the three years But otherwise one may surrender any kinde of estate for life as by dower by the curtesie or as tenant in tail after possibility of issue extinct or for years or years determinable upon lives and that of any mesuages houses lands commons rents or the like that are grantable from one to another and such surrenders are good 4. That there be Perk. Sect. 607 608 609. Dier 251. Bro. sur 1. 35. 37. 17. 21 H. 7. 7. 4. In respect of the manner And how and by what words a surrender may be made And where it may be made without deed and upon condition Or not words or words and deeds sufficient to make the mind of the surrendror to appear that he is willing and desirous to part with and yeeld up the thing surrendred into the hands of the surrendree And herein it is to be known that albeit the words Surrender Give or Yeeld up be the most significant proper words whereby to make a surrender yet any other words especially if it be in the surrender of a lease for years that do testifie and declare the will and assent of him that is the particular tenant that he in the remainder or reversion shall have the estate of the tenant be sufficient to passe the estate by way of surrender And therefore if lessee for life or years doe by word or writing say That he will hold the land no longer and wish him in reversion or remainder therefore to enter Or that it is his desire that he shall enter into the land and have it and his estate therein Or that he is content that he shall have his estate or have his lease such or any such like declaration as this made to him in reversion or remainder will be a good surrender So if Hil. 37 El. B. R. Sleigh Batemans case lessee for years deliver his Indenture to a stranger to deliver it and all his estate up to him in reversion and doe appoint the stranger to deliver and surrender it to him in reversion and he doe so and he in reversion accept thereof this is a good surrender but otherwise it is of an estate for life So if the particular tenant doe by the words Give Grant or Confirm passe his estate to him in reversion and he doe enter and agree to it this is a good surrender And by all these surrenders the estates wil passe by way of surrender except it be in some speciall cases where the intent of the parties doth plainly appear to bee that the estate shall not passe by way of surrender But if a lessee for life or years doe onely goe from the house or land and carry away his goods and cattell and so waive the possession for a time either because the lessor shall not distrain them for rent behind or the like and thereupon the lessor doth enter and enjoy it this is no surrender neither is this a good yeelding up of his estate And in such a manner and by such words as before any thing that may be Perk. Sect. 581 582. 583. Fitz. sur 1. Co. super Lit. 338. granted by word without writing may bee surrendred by word without writing so as it be made within the same County where the thing surrendred doth lie And this holdeth true albeit the estate to bee surrendred were created by deed But such things as commons rents advowsons reversions remainders and the like that cannot bee granted without deed cannot bee surrendred without deed And therefore if a lease be made for life the remainder for life by word of mouth without any writing he in the remainder for life cannot surrender his remainder for life without deed So where one hath a rent advowson or the like as tenant in dower or by the courtesie this cannot bee surrendred Dier 251. Bro. Sur. 16. without deed And in case where there is any speciall matter to be contained in the surrender as reservation of rent condition or the like there for the most part it must be by deed or it will not be good And therefore if tenant for life declare himself by word of mouth to be contented and agreed that he in the reversion shall have the land and his estate therein rendring ten shillings a years rent or paying such a summe of money or upon condition that if he survive the lessor he shall have it again Perk. Sect. 624. 623. Co. super 218. c. this is no good surrender And a surrender may be made also upon a condition precedent or subsequent as if it be with reservation of rent that if it be not paid it shall be void but if it be an estate for life that is so surrendred it seems it must be made by writing indented and so likewise it should seem the law is of the surrender of a lease for years upon a condition or however it is most safe so to doe 5. That the surrendree doe agree to and Perk. Sect. 608. Lit. Bro. 163. accept of it for untill then the surrender is not perfect but if the 5. In respect of the agreement of him to whom the
Perk. sect 619. to him in the reversion and two others that hereby they have a joint estate and the survivor shall have the whole If lessee for Co. super Lit. 335. life make a lease for his own life to the lessor the remainder to the lessor and a stranger in fee this shall enure as a surrender of the one moity and a forfeiture of the other moity If tenant for life Forfeiture Perk. sect 622. Bro. Sur. 20. 34. 23. surrender to the husband of a woman tenant in tail or in fee this shall enure as a grant not as a surrender And so also it seems is the law when the surrender is to the husband and wife And if B Bro. sur 46. be tenant for life the remainder to C in tail the remainder to D in tail and B infeoff C and S his wife in fee this shall not enure as a surrender but it is a forfeiture so that if C die without issue D may enter If there be lessee for life the reversion to two coparcenours Perk. Sect. 623. 21. H. 7. 40. and one of them take a husband and the lessee doth grant his estate to her and her husband this shall not enure as a surrender but as a grant And yet if tenant for life doe grant his Bro. sur 34. estate to the husband and wife she having the reversion if she be an infant and within age at this time it seems this shall enure as a surrender not as a grant If tenant for life or years and he in Plow 140. Dier 358. 3. When it is done with him in reversion or remainder reversion or remainder by word without deed join in a feoffment it shall be said the surrender of the estate for life or years to him in the reversion and the feoffment of him in reversion But if he in reversion infeoff the tenant for life without any deed this shall enure first as a surrender of the lease for life and then as a feoffment See more in Deed Numb If I have a rent in fee for life or years issuing out of another mans 14 H. 7. 2. Perk. Sect. 591. 585. 606. 590. 596. 598. 8. Where a deed or rent may be surrendred And how such a surrender shall enure or be taken Manor or other lands I may surrender it for if I deliver the deed of the grant of the rent to be cancelled unto any one that hath any estate of the Manor or land in fee simple for life or yeares in possession or remainder either solely by himself or jointly with others this is a good surrender and hereby the rent is extinct and gone But one that is tenant in tail of a rent cannot surrender it neither wil the delivering up of the deed in this case determine the rent And if one be seised of land out of which a rent is issuing in fee and Perk. Sect. 594. is disseised and during the disseisin the grantee of the rent surrender his rent and give up his deed it seems this doth not extinguish the rent yet hath the grantee no remedy for his rent when he hath delivered up his deed And yet if one be seised of land in fee out of Perk. Sect. 595. which a rent is issuing in fee and he die without heir so that the land escheat and before the Lord enter upon his escheat he that hath the rent doth surrender the deed of the rent to the Lord it seems this is a good surrender to extinguish the rent And if the Perk. Sect. 597. grantee of a rent-charge in fee grant the same to him in fee that is seised of the land in fee this shall enure to extinguish the rent but if he grant it to one that hath only an estate for life contrà And now by this time it is high time we come to Confirmations and Releases which serve to enlarge and amend the estate and interest that a man hath in a thing already CHAP. XVIII Of a Confirmation A Confirmation is the conveyance of an estate or right that one 1. Confirmation Quid. Terms of the law Co. super Lit. 295. hath into lands or tenements to another that hath the possession thereof or some estate therein whereby avoidable estate is made sure and unavoidable or whereby a particular estate is increased and enlarged And this albeit it may be made by other words as by Dedi or Concessi which are generall words and serve to make a grant feoffment lease release c. yet it is most commonly and properly made by these words Confirmasse Ratificasse approbasse which doe signifie ratum firmum facere supplere omnem defectum And he that makes the confirmation is sometimes Confirmor Confirmee 2. Quotuplex called the confirmor and he to whom it is made the confirmee There are two kinds of confirmations viz. a confirmation implied Co. super Lit. 295. Plow 140. Lit. Sect. 515. Co. 9. 142. or in law which is when the law by construction makes a confirmation of a deed made to another purpose and a confirmation expresse or in deed which is when the act done or deed made is intended for a confirmation And both these are always in writing The latter is properly called a deed or instrument of confirmation and is made after this manner Noveritis universi c. me A de B ratificasse approbasse confirmasse C de D statum possessionem quos habeo de in uno Mesuagio c. cum pertinen in F c. A confirmation is also distinguished by his effects for sometimes it doth tend and serve to confirm and make good a wrongfull and defeasible estate or to make a conditionall estate absolute And then it is said to be confirmatio perficiens And sometimes it doth tend and serve to increase and enlarge a rightfull estate and so to passe an interest And then it is called confirmatio crescens And sometimes it doth tend and serve to diminish and abridge the services whereby the tenant doth hold And then it is called confirmatio diminuens The nature and work of this where it doth find a foundation to 3. The nature and operation of it in generall Co. 146 147 Dier 109. 7 H. 6. 7. Lit. Sect. 539. Co. 9. 142. work upon is either to increase and enlarge the estate of him to whom it is made from a lesser to a greater and to give him some new interest he had not before or to corroborate and perfect the estate that was imperfect before or to change the quality of it from an estate upon condition to an absolute estate or otherwise for this a confirmation will doe In some cases also it will extinguish rights and titles of entry But it will not make an estate good that is meerly void nor add nor take from an estate a descendible quality and make a man capable of it that is
as the lessors feoffors and disseisees in the cases before have otherwise the confirmation is void And therefore if the heir of the disseisee during the life of the disseisee 29 H. 6. 62. confirm to the disseisor this is no good confirmation to perfect his estate albeit the disseisee die the right of the land descend to his heir afterwards So if lands be given to A B his wife the Co. 9. 138. heirs of their bodies issuing the remainder in fee to A A levy a fine with Proclamations and die and she within five yeares doth enter and claime and after the conusee doth confirme the estate made by the first gift to the wife To have and to hold according to the same this confirmation is to no purpose So if lessee for life make a lease for thirty yeares and after he in reversion and the Co. super Lit. 296. lessee for life lease for sixty yeares in this case he cannot confirme the lease for thirty yeares because he hath granted it before for sixty yeares And hence it is also that the confirmation by one Jointenant Jointenants Fitz Confirmation 15. Lit. Sect. 523. Dier 263. of the estate of his companion worketh nothing for their estates are equall and each hath interest in the whole land And yet if one Jointenant confirme the whole land to his companion To have and to hold the land to him and his heires this shall amount to a Grant and so will be good to passe his moity And hence Lit. Sect. 543. Co. super Lit. 308. it is also that if a man grant a rent charge out of his land to another for life and then confirme his estate without any clause of distresse for by a clause of distresse a grant of a new rent may be made To have and to hold to him in fee simple or fee taile that this is void for the confirmor hath no reversion of the rent in him 4. The precedent estate must continue untill the confirmation come as in all the cases of voidable estates made the confirmation must be before the estates be made void by entry c. or otherwise the confirmation will be void And therefore if lessee for life or yeares surrender or the disseisee enter upon the disseisor and after the lessor or the disseisee confirme the estate of the lessee or disseisor this confirmation comes too late 5. The estate precedent and Co. 5. 15. Lit. Sect. 607. that which is to be confirmed must be lawfull and not prohibited by any act of Parliament And therefore if a spirituall person as Prebend or the like make a lease not warranted by the Statutes the confirmation of the Deane and Chapter will not help nor amend it And if tenant in taile make avoidable lease and after confirâ— it himselfe this is voidable still 6. There must be apt words of confirmation in the deed or Instrument And herein note Lit. Sect. 531. 532. 10 E. 4. 3. Co. super Lit. 295. Dier 116. Co. 1. 147. 5. 15. that albeit the words Confirmavi ratificasse approbasse be the most significant and proper words to make this conveyance yet such as are made by other generall words may make a good confirmation And therefore it is agreed that a deed made by the words Dedi Concessi or Demisi may make a good confirmation And therefore that if the disteisee coparcener or lessor make a deed of the land by the word Dedi or Concessi to the disseisor other coparcener or lessee for life and deliver the deed this is a good confirmation without livery of seisin Also if a feoffment be made to A Livery of seism to the use of B and his heires upon condition and before the condition broken the feoffor and B doe joine in the grant of a rent charge and after the condition is broken in this case the law doth interpret this a good grant from B and a good confirmation of the feoffor without any words of confirmation So if tenant for life doe grant a rent to him in reversion and he by deed doth grant it to another and his heires in fee in this case the law doth construe this a good grant and a confirmation also And in these cases Lit. Sect. 519. Co. super Lit. 296. of confirmations of estates if it be by the disseisee to the disseisor it is good without any words of heires as if the disseisee confirme the estate of the disseisor or confirme the land unto him and say not To him and his heires this is an effectuall confirmation to him and his heires for ever And if a lessee for life or a disseisor make a lease for life or yeares c. and he in the reversion or the disseisee confirme their estates and not the land and without any Habendum or limitation of estate this is good for so long as the estates do continue But it is most safe alwayes to expresse the estate i. to say Co. 1. 147. To have and to hold the land to him and his heires or for life c. as the agreement is If lessee for life grant a rent to one and his heires out of the land and the lessor doth confirme the estate or this rent charge this doth make the estate of the rent sure And so also if he doe confirme the rent and say To have and to hold to him and his heires this is a good confirmation But if he confirm the rent To have and to hold to him in fee without naming his heires hereby his estate is not bettered If the lessor confirme the estate of his lessee for life with this Co. 9. 139. F. N. B. 136. Co. 8. 76. Dier 10. clause To hold without impeachment of wast this is a good confirmation to change the quality of the estate so farre as to make it dispunishable of wast So if the Lord paramount confirm the estate of 2. To enlarge the estate of him to whom it is made the mesne with clause of acquitall And so if lessee for yeares or for anothers life be without impeachment of wast and the lessor confirme to him for his own life and omit that clause hereby this priviledge is gone and the estate is become punishable for the wast This kind of confirmation Crescens must have all the qualities of the former and there must be also in this case a privity between Co. 9. 142. super Lit. 305. Dier 145. 290. Co. 6. 15. Lit. Sect. 533. 532. 523. Dier 263. the confirmor and the confirmee And then it may enlarge the estate of him to whom it is made as from the estate at will to an estate for yeares or to a greater estate from an estate for yeares to an estate for life or to a greater estate from an estate for life to an estate in taile or in fee and from an estate taile to an estate in fee and
Lit. 276. them this shall enure to both But if the Kings tenant bee disseised by two and he release to one of them this shall not enure to the other So if two jointenants make a lease for life and then disseise the tenant for life and he release to one of them in this case his companion shall have no benefit by it If tenant in fee simple be disseised by two or two doe abate or Lit. Sect. 472. 522. intrude and he doth release to one of them the other shall have no benefit by this But if tenant for life doe after a disseisin done to him release to one of the disseisors this shall enure to both And if two disseisors be and they make a lease for life or Co. super Lit. 276. years and after the disseisee doth release to one of the disseisors this shall enure to them both and to the benefit of the lessee for life also And if lessee for years be ousted and he in reversion disseised and the lessee release to the disseisor the term of years is hereby extinct and the disseisee may take advantage of it and enter presently But if two jointenants in fee be disseised by two disseisors one of the disseisees release to one of the disseisors all his right this shall enure to the other for this extendeth but to a moity If a release be made by a woman of her dower to the guardian Co. super Lit. 266. in Chivalry this shall enure to the heir and he may take advantage of it If tenant for life be disseised by two and he in the reversion and the tenant for life join in a release to one of the disseisors Co. super Lit. 276. this shall not enure to the other But if they doe severally release their severall rights their severall releases shall enure to both the disseisors If mortgagee upon condition after the condition broken be Co. idem disseised by two and the mortgagor that hath the title of entry doth release to the one disseisor this shall enure to both And like law is for an entry for mortmain or a consent to ravishment c. If there be Lord and two jointenants and the Lord release to Co. super Lit. 269. one of them this shall avail his companion If tenant in fee simple make a feoffment in fee and after the Lord release to the feoffor this shall not enure to the feoffee to extinguish the seigniory But if he release to the feoffee this shall enure to the feoffor to extinguish the seigniory If there be Lord and tenant and the tenant make a lease for Co. super Lit. 279. life the remainder in fee and the Lord release to the tenant for life the rent is hereby wholly extinguished and he in remainder shall take advantage of it as when the heir of a disseisor is disseised and the disseisor makes a lease for life the remainder in fee and the first disseisee doth release to the tenant for life this shall enure by way of extinguishment to him in remainder viz. to the lessee for life first and after to him in remainder If two tenants in common of land grant a rent of forty shillings Co. super Lit. 267. out of it and the grantee release to one of them this shall not enure to the other But if one bee tenant for life of lands the reversion in fee to another and they join in the grant of a rent out of the lands and the grantee release either to the tenant for life or to him in reversion this shall enure to the other and extinct the whole rent If two men gain an advowson by usurpation and the right Co. super Lit. 276. Patron release to one of them this release shall enure to them both If two be bound jointly and severally in any obligation or Co. 5. 59. super Lit. 232. Lit. Sect. 376. other especialty and the obligee c. release to one of them this shall enure to discharge the other also if it be a good release as to him that makes it But otherwise it is in case of a release made by the King And if two do a trespasse to another together and he to whom Prerogative it is made doth release it to one of them this shall enure to discharge the other If husband and wife and I S purchase to them and the heirs To husband and wife Dier 319. Co. super Lit. 273. 276. 14 H. 8. 6. of the husband and after I S release all his right in the land to the husband the wife shall have no benefit by this but it shall enure to the husband alone And if there be two women joint disseiseresses the one take a husband and the disseisee release to the other in this case the husband wife shall take no benefit by this And if the disseisee release to the husband this shall enure to him and his wife and the other woman And if one that hath a rent out of my wives land release it to me and my heirs this shall enure by way of extinguishment and my wife will have advantage of it And yet if the words be grant and release the rent to the husband and his heirs in this case the husband may take as a grant if he will But here note in all these cases of releases when one man Co. super Lit. 232. Note will take advantage of a release made to another he must have the release to shew and plead If I bee disseised and I release to the disseisor all actions I Co. 10. 51. 22 H. 6. 1. have or may have against him this is but personall and shall not be expounded to bar my heir after my death of his remedy neither will it bar me of my remedy against his heir after his death So if I deliver goods to another and afterwards I release to him all actions and then he die by this I am not barred so but I may sue his executors See more in Confirmation chap. 18. Numb 7. A release of all actions without any more words is better Co. 8. 153. 5. 28. 70. Kelw. 113 Co. super Lit. 286. 290. 292. 289. Lit. sect 492. 505 506. 512 513. Bro. stat 39. 2. In respect of the thing released Of all actions then a release of all actions reall onely or a release of all actions personall onely for by a release of actions or a release of all manner of actions without more words are released and discharged all reall personall and mixt actions then depending and all causes of suit for any reall or personall thing as Appeals for the death of an ancestor conspiracies suits by Scire facias to have execution of a Judgement detinue for charters And if two conspire to indite me and I release to them all actions and after they goe on with their conspiracy by this release I am barred to
after to make his Will by And yet if it can bee proved that the Testator did declare himselfe that this should be his Will this will be a good Testament and a good proofe of it 3. If it bee proved the Testator said his Testament was in such a Schedule in the hands of I S and I S produce a writing deposing 〈◊〉 to be the same it seemes this is a sufficient proofe but if he say withall it is written with his own hand then it seemes some other proofe as by comparing hands or the like that it is his hand wherein it is written will be expected 4. If the Witnesses will prove the writing produced to be the last Will of the Testator or that hee said it was or it should be his last Will or that it is the same writing that was shewed unto them and whereunto they are Witnesses albeit they never heard it read or set their hands to it it is a sufficient proofe 5. All persons male and female rich and poore Witnesse competent to 〈◊〉 a Testament are esteemed competent Witnesses to prove a Will save only such Swinb paâ—t 4. Sect 21. as are infamous as perâ—uâ—ed persons and the like and such as want understanding and judgement as children infants and the like and such as are presumed to beare affection as kindred tenants servants and the like A Legaâ—ee is reputed a competent Witnesse to prove any other part of the Will but his own Legacy or to prove any thing against himselfe touching his own Legacy but not otherwise And therefore where there be but two Witnesses of a Will wherein either of them hath somewhat bequeathed unto himselfe this Will cannot be sufficiently proved for those Legacies but for the rest of the Will it may be sufficiently proved 6. Where there is no question nor oppoâ—â—tion moved or had about or against a Testament there the Oath of the Executor alone is esteemed a sufficient proofe of it and in that case regularly no other proof is required And where more proofe is necessary as in the cases before it is in the discretion oâ— the Ordinary what proofe to admit and allow And those Witnesses for number nature and quality or that other proofe that he â—oth deeme and accept for sufficient is sufficient and the Testament so proved by such Witnesses or other proofe is sufficiently proved And of this question see more infâ—a at Numb 7. A Testament sufficient and good in his câ—â—aâ—ion and beginning 〈◊〉 Where 〈◊〉 how a Testament good in his â—eginning may become void by 〈…〉 oâ— not Coo. 4. 61. 〈◊〉 Sect. 〈◊〉 Plow â—â—4 〈◊〉 Swinb 〈◊〉 7. Sect. 14 〈◊〉 Perk. Sect. 4â—â— Coo. 〈◊〉 〈◊〉 〈◊〉 8â— 8â— may â—â—terwards become void by divers meanes as 1. By Countermaund or Revocation and this is sometimes by the party himselfe that made it and sometimes it is by another And sometimes it is expresse and sometimes it is implyed for it is a rule That any Act or thing done or words spoken by the Testator after the Testament made that doth aâ—ter or crosse all or part of his Testamenâ— made before is a Revocation of it or of that part thereof that is so crossed and altered And therefore if a Feme Covert make a Testament and after take a husband by this the Testament is revoked And if a man make a Testament of land and after make a Feoffment of the same land which Feoffment is not good for some defect in the Livery of Seisin or otherwise so that the Feoffor dyeth seised of the land notwithstanding hereby the Testament as to this land is revoked So if a man make a latter Testament and therein by expresse words doth revoke the former Testament or if a man by any writing or by word of mouth * Dâ—eâ— 31â— 34. Eliz. B. R. Buttons case for one may by word of mouth revoke a Will in writing albeit it be of land doe expresly revoke a former Testament that he hath made and make no new Testament for so a man may do and die intestate if he will or if a man make a latter Testament make no mention of the former Testament all these are Countermaunds of the former Testament And the latter Testament doth alwayes revoke the former and that albeit the Executor of the latter doe refuse the Executorship or die during the life of the Testator or after his death and albeit the King be made Executor of the former and albeit the former be a written and the latter but a Nuncupative Testament and this holdeth true in a Testament of lands as well as in a Testament of goods and chattels but otherwise it is è converso for however a man may by word avoid a Will made in writing that is good yet a man cannot by word make good and affirm a Will made in writing that is void And therefore if a man devise his land in writing to I S and his heirs and I S die before the Devisor and after the Devisor say by word That the heires of I S shall have the land as I S should have had it if he had lived this verball declaration will not affirm the disposition Also the latter Testament doth infringe the former albeit there be no mention made in the latter of revoking of the former and albeit there bee twenty Witnesses of the former and but two or none of the latter and albeit in the former the Executor be appointed simply and without condition and in the latter he be appointed conditionally and the same condition be also broken so that the condition be of something then to come at the time when the condition was made but if the Executor of the latter Testament bee made upon some condition then present or past the condition not existing the former Testament is not revoked and albeit the former Testament be made irrevocable i. e. That the Testator say I make this my last Will and Testament irrevocable and albeit the Testator hath sworn not to revoke the former the Oath being also revoked together with the Testament and albeit the Testator enter into an Obligation with condition not to revoke it but then in this â—ase he doth forfeit his Obligation But the latter Testament doth not revoke the former Condition in these cases following i. e. when the latter is imperfect in respect of Will i. e. when the Testator dyeth whiles he is making of it and before he can finish it or when it is veâ—emently suspected that the Testator was compelled to make the latter by feare or violence or induced to make it by fraud and deceit or when the former was made by the Testator whiles he was in his good and perfect minde and memory and the latter is made by him when he is inops mentis or when the latter is made by the perswasion and for the benefit of certaine persons when the Testator is in extremity of sicknesse unlesse it
Schedule in the custody of such a man and in truth there is no such Schedule in the custody of such a man to be found or if there be no name written therein it seemes these Legacies are void for incertainty So if a man give a Legacy to a man incertaine and no such man is to be found and the meaning of the Testator cannot be known this Devise is void And yet if a man by his Will say thus I devise to him that shall marry my daughter this is a good Devise and he that doth marry my daughter in my life time or after my death shall have it And if a man devise any thing ad pias causas as to the Church or to the Poore not expressing what Church or Poore this perhaps may be a a good Devise So if a man give 20l. to his kindred it is said this is a good Devise and that a reasonable exposition shall be made of it as neer the intent of the Testator as may be viz. that those in the next degree shall have it first and then those in the next degree to that shall have it afterwards and if it be a Devise to the kindred of another man that they shall have it equally Sed quaere of this Devise for it seemes altogether uncertaine So if a man give to I S or I D 20l. this is held Swinb part 7. sect 9. to be a good Devise albeit it be somewhat incertaine and the disjunctiue shall be taken for a copulative and so I S and I D shall take both by this Devise but if in this case one of them be nearer of kin then the other then it is said he shall have it for his life anâ— the other afterwards And if one devise 20l. to A or B which of them I S will appoint this is a good Devise and hee that I S shall appoint shall have it And if one devise to I S and his children this is a good Devise and certaine enough and hereby he and Plow 345. Coo. 1. 105. 155. Perk. sect 508. his children shall take the thing devised together 3. And as the person to whom the Devise is made must be capable and certainly described and named so must he be capable by that name by which the Devise is made to him or otherwise the Devise is void And therefore if a Devise be to the heires of I S I S being living this Devise is void And yet if â—ands or goods be devised to the Executors of I S and I S die before the Testator and make Executors this is a good Devise to the Executors And if a man devise his land to I S for life the remainder to the next of kin Fitz. Devise 27. Plo. 523. Perk. sect 509. 510. â—â—oo Corporation 55. or next of blood of I S this is a good Devise of the remainder And iâ— a man devise goods to the Pariâ—â—ioners of the Parish of S to the use of the Church this is a good Devise and the Church-wardens may recover it And if a man devise Eccleâ—â—â— sanctâ— Andreâ— dreâ— de Holborne it seems this is a good Devise to the Person of that Church And if a man devise to the City of London University of Oxford or to Queens Colledge in Oxford these are good Devises But if one devise to the Cominalty of a Guyld that is not incoâ—porate as to two of the middle men of the Guyld of the â—raternity of whiteacres in London or the like this devise is void 4. And if the person be capable wel-named and capable by that name if his name be truly set downe yet if his name be not so Dyer 4. Perk. sect 50â— Swinb 289. 290. 〈◊〉 but mistaken the Devise is void And therefore if one intending to give 20l. to I S devise to I N 20l. this devise is void both to I S and I N except the person be certainly denoted and described by some other circumstance as to I N the sonne of I S my Lanlord or the like So if one devise to the Abbot of S. Peter when the foundation is the Abbot of S. Paul this Devise is void And if one devise to a Corporation and there be none of that name at the time of the Devise nor during the life of the Testator this Devise is void and so also it seemes the Law is if there be a Colledge made after of that name But if one devise a thing to Plow 344. the wife of I S and before the Devisor die I S dye and she take another husband and is called by another name yet this Devise is good So if one give a Legacy to I S Deane of Pauls and the Chapter there and their Successors and after before the death of the Devisor I S dye and another is made Deane yet this Devise is good notwithstanding this mistake For the third and fourth thing required in a good Devise see before at Numb 4. Part. 2. 3. And for the fifth thing it is to be knowne 1. Coo. supeâ— Litt. â—11 Plow 345. Swinb parâ— 1. sect 12 That lands and tenements devisable by custome may be devised by Fifthly in reâ—pâ—ct of matter tâ—uâ—hing the manner and forme of the Devise And how a Devise may be made a Nuncupative Will without any writing for any time whatsoever as Uses at the Common-Law that are now within the Statute might have been Also those Uses that remaine at the Common-Law and are not within the Statute may be devised by word without any writing But no estate can be made of lands by Devise upon the Statute except the Devise be in writing and so a man may devise his land albeit he make no Executor for an Executor hath nothing to do with the Free-hold of land Also goods and Plow 345. Swinb part 1. Sect. 1â— Dyer 140. chattels leases for yeares of Lands Wards Villaines and the like may be devised by word without any writing at all And yet it seemes questionable whether a Lease for yeares of a Rent Common or such like thing be devisable by word without writing 2. Swinb part 4. sect 4. Plow 23. Littl. Broo. sect 316. Dyeâ— 23. The forme of words in a Devise is not at all regarded and therefore if one say I give institute desire appoint or will that I S shall have my land or that I S shall have 20l. or let I S have my land or 20l. all these Devises are as good as if he say I devise to I S my land or 20l. And therefore if one at this day since the Statute of Uses devise that his Feoffees of the land shall bee seised of the land to the use of I S and his heires or to the use of I S and the heires of his body or if such a man devise that his Feoâ—fees shall make an estate of the land to I S and his heires or to him and the heires of his body this is a
good Devise of the land in Fee-simple or Fee-taile * 〈◊〉 c. 9. â—ac New mans case And if a man make a Feoffment of his land to the use of his last Will and then devise that his Feoffees shall be seised to the use of I S this is a good Devise of the land per intentionem * Plow 54â— Coo. 4. 66. 8. 95. And if I devise that I S shall have hold and occupy my land for his life this is a good Devise of the land for his life * Dye◠〈◊〉 33. 128. Coo. 1. 83. 6. 42. Dyer 4. 33. If a man have a Lease for yeares of land and he devise his Lease or his Terme or his Ferme or the profits or occupation of the land by either of these Devises his whole lease and all his interest in the land is given as well as by any other forme of words 3. A man may devise lands tenements or hereditaments in possession in Fee for life or yeares or he may devise it in reversion viz. to one for life the remainder to another in Fee or in taile or in any other sort as a man may grant it by his Deed and such Devises are good But if the Fee-simple of land be devised to one the remainder cannot be devised to another albeit the first Devise be but conditionall And therefore if land be devised to I S and his heires and if he dye without heires that it shall remaine to I N and his heires this is a void remainder to I N. So if a man devise his land to I S in Fee ita quod solvat I N 20l. and if he faile that it shall remaine to I N and his heires this remainder to I N is void for if I S faile of payment I N shall not enter and have the land but the heire of the Devisor And yet perhaps a rent may be devised after this manner Howbeit if another man have a Rent-charge of 20l. a yeare issuing out of my land for Dyer â—39 â—4 20. yeares and he devise this unto me untill I have levied 100l by way of retainer the remainder to I S this remainder is not good 4. A Devise may be of lands goods or chattels simply and absolutely or conditionally the simple Devise also may be in praesenti Condition Pâ—â—w 〈◊〉 Peâ—k Sect. â—63 See 〈◊〉 〈◊〉 8. 95 or in futuro And therefore as a Devise to one and his heires in praesenti is good so a Devise to one and his heires after the death of I S is good If I devise land to I S and his heires on condition as so as or ita quod he pay 10l to W S or paying to W S 10l or ad solvendum 10l to I S the Devise in all these cases is a good conditionall Devise and if the condition be not performed or broken the estate is ended and the heire may take advantage of it And therefore if lands be so given to the heire the condition is idle because none can enter but him And if I devise that if I S pay my Executors 20l. that hee shall have White acre to him and his heires for ever or for life c. this is a good Devise and after the contingent shall take effect accordingly and in this case and such like the heire of the Devisor must keep the land untill the contingent doe happen In like manner as if it bee a chattell the Executor shall keep the thing untill the condition bee performed and after a condition broken hâ— shall take advantage of it 5. A Devise may be also with a limitation as in the cases before Limitation and as where one gives land to another and his heires so long as I S shall have heires of his body or where one doth devise his land to A his sonne and his heirs for ever paying to B his brother 20 l. when he shall come of age and then that he shall enter and have it to him and his heirs and if he die without heirs of his body the said B then living then that B and his heirs shall have it in the same manner And these and such like Devises are good 6. A man that is seised of land in Fee may devise that his Executors Coo. super Lit. 112. 11â— 236. shall sell it or may devise it to his Exâ—cutors to sell or Devise it to his Executors and that they shall sell it and these Devises are good 7. A Devise may be of a rent or of land reserving Dyer 348. 100. 8. 84. 85. Clause of Distresse a rent with clause of Distresse As if a man Devise land to I S paying 10 l. by the yeare to his wife and if it be unpaid â—arrantiae that she shall distraine for it this is a good Devise But a Warranty cannot be made by a Wilâ— And yet if a man devise land to Coo. super Litt. 38â— another for life or in Taile reserving a rent in this case the heires of the Devisor shall be bound to the Warranty in Law and the Devisee shall take advantage of it 8. A man may devise his land Plow 523. 540. Dyeâ— 357. Coo. 8. 94. 83 to one and devise a rent out of the same land to another and these Devises are good So a man may devise his land to one in Fee and after devise the same land to another for life or years and these are good Devises and may stand together So also if a man in the fore-part of his Will by generall words devise all his lands to one in Fee and in the latter part of his Will devise some speciall part of it to another in Fee these Devises are good and shall stand together as for example if one have a Farm and in the first part of his Will give this Farm to one and in the latter part of his Will give one Close a part of this Farm to another or a man devise all his land in B which is in the County of Glouâ— to A his daughter and the latter part of his Will deviseth all his land in the County of Glouâ— in the possession of I S to his sonne and part of the land in B. is in the possession of I S and in Gloucestershire these are good Devises and shall stand together * 38 Bliz. Co. B. Agreed divers times But otherwise it is when the generall clause doth come last as where one doth give his land to A his daughter and in the latter part of his Will doth give all his land in Hartfordshire in the possession of I S to W and the land given to A is in Hartfordshire and in the possession of I S in this case the Devises will not stand together for the first Devise is void and so also it is where both the Devises are particular as where first in a mans Will he doth give White Acre to A and his heirs and after in
his Will he doth give White Acre to B and his heirs in this case the first Devise to A is void * Dyer in his Lecture 1. per Inst Dodr. And yet in this last case some have held the Devises shall be good and that A and B shall be Joint-tenants Ideo Quaere * Trin. 9. Ia. B R. If one devise all his land to I S and his heirs excepting 20 l. for seven years which he willeth shall be imployed for his children this is a good Devise of this summe of 20 l. a yeare 9. And a man may devise his land for so many yeares as I S shall name and after appoint that his Plow â—23 546. sonne shall have it during the minority of his sonne and both these Devises may stand together And therefore if A be possessed of the Mannor of D for yeares and he deviseth all his Term to his eldest sonne if he live so long and if he die before he have any issue of his body then to his younger sonne in the same manner but withall he doth appoint that his wife shall have the occupation of the land untill his eldest sonne be 21 years of age these Devises shall stand together and the wife shall enjoy the Mannor for that time by this Devise 10. A man may devise a term of years by way of remainder as for example a man that is possessed of a term of Coo. 8. 95. Plow 519. 546. 516. 539. Dyer 277. years of land may devise it to I S for life the remainder to I D or to I S for life and that it shall after remaine to I D or to I S for so many years as he shall live and after to I D or in any such like manner these are good Devises both to the first and to him in remainder also by way of Executory Devise though not by way of remainder and in this case the first Devisee cannot hinder the second Devisee of the remnant of the terme But a man cannot by Deed Grant in his life time grant his term in this manner * Coo. 10. 8â— â—7 pasâ—â— 17. â—ac B. R. child versâ—s Baily Nor if a man be possessed of a term can he entaile it by his Will And therefore if a man possessed of his terme of years of land Devise his term or his land to I S and his heires or to I S and the heirs of his body or to I S and his issues the remainder to I D this remainder is void and it is a good devise of the whole terme to I S and his Executors * 37 〈◊〉 6. 30. 〈◊〉 Broo. Sect. 388. 3â—4 209. Also a chattell personall may as it seemes be devised to one for life and afterwards to another but yet so as the one must have the property only and the first but the occupation only as if one devise that I D shall have the occupation of his plate for his life and after that it shall remaine to I S this is a good Devise of the plate to I S. But if the thing it selfe be devised to the first of them then the Devise to the second is void for the gift of a chattell personall for one houre is the gift of it for ever And so it did seeme in the Lady Daves case Hill 9. Car. B. R. 11. A Legacy of goods or chattels may be given Swinb part 4. Sect. â—7 to or untill a certaine time or from or after a time certaine or incertaine as for five years or from or untill the marriage of A or the like and these Dispositions are good 12. A man may Plow 524. devise his land for so many yeares as I S shall name and if I S doe name a certaine number of yeares in the life time of the Devisor this will bee a good Devise But if one devise his land for so many yeares as his Executor shall name it seemes this Devise is not good 6. As touching the sixth thing required in a good Devise these things are to be known 1. That Lands Tenements Dyer 371. Coo. 8. 83. 6. 16. super Litt. 111. Perk. Sect. 496. 500. 497. 538. Lit. Sect. 167. Dyer 155. old N. 〈◊〉 Sixthly in respect of matteâ— touching the thing devised and what may be devised and by what name and Heriditaments for the nature and quality of them are devisable as well as other things And therefore by the custome of some places lands in possession reversion or remainder are devisable in Fee for life or yeares and a man that hath a Lease for yeares of land may devise the land at his pleasure during his term But by the ancient Common-Law in favour to heires the lands that a man had in Fee simple were not devisable by Testament except only in Devise of lands and teâ—â—ements some speciall places by the custome of the place as Gavelkind-lands in Kent and lands within certaine Borrow-Townes as London Oxford c. and by the custome of those places such lands are devisable And in some places the custome is that they may devise their purchased lands only and in other places that they may devise their lands discended also And in some places the custome is that they may devise for life only and in other places that they may devise in Fee-simple and Fee-taile also And in all these places where such customes are they may devise their lands now as they might have done before the Statute for the Statute hath not destroyed their custome And therefore at this day they that have such lands in such places have their election eitheir to devise according to the power the custome doth give them or according to the power the Statute doth give them and in the first case the Devise is good against the heire for the whole and in the last case it is good against him for two parts in three only Also by the Perk. Sect. 496. 528. 538. Common-Law the Uses of lands were devisable as goods and chattels were as the pleasure of him that had them But otherwise and in other cases lands and tenements might not be devised and disposed by Will untill 32 H. 8. at which time the owners of lands tenements rents c. were by Act of Parliament enabled to devise and Stat. 32. H. 8 c 1. 34 H. 8. c. 5. dispose their lands as followeth He that hath any land in possession reversion or remainder by Socage Tenure and hath no land held in Capite or by Knights Service may devise all his land or any rent Common or other profit apprender out of it to any person in Fee-simple Fee-taile for life or years at his pleasure Hee that hath any such land held of the King in Capite by Knights Service or by Knights Service and not in Chiefe or held of any common person by Knights Service may devise two parts thereof in three to be devided or any rent c. out of
those two parts at his pleasure and no more for the third part must discend to the heir and come to satisfie the Lord his duties and therefore the Devise of the whole land in this case is void for the third part He that hath any such land held by Knights Service in Capite and other lands held by Socage Tenure may devise two parts of the whole and no more or any rent c. out of it at his pleasure He that doth hold land of the King by Knights Service only and not in Capite or if a meane Lord by Knights Service and hath also other lands held by Socage Tenuâ—e may devise two parts in three of all the land held by Knights Service or any rent c. out of it and all his Socage land at his pleasure So that now by these Statutes a man that hath lands in Fee-simple may devise them in Fee-simple Fee-taile for life or yeares absolutely or conditionall at his pleasure And therefore if one devise his land to one for life the remainder in Fee or Fee-taile to another or devise his land to B the remainder to the next heir male of B and the heires males of the body of such heire male or the like these are good Devises But for the more full understanding of these things it it to be known in the next place 2. That this Statute doth not enable men to devise land that are See the Statute Coo. super Litt. 111. Perk. Sect. 544. Lut. Sect. 287. Dveâ— 210. old N B 89. Perk Sect. 500 539 540. 496 497 498. disabled by Law in respect of their persons or minds as Infants women Covert men de non sane memory or the like nor such as are disabled in respect either of the nature of their land as Copi-holders for Copi-hold-land is not devisable or of the estate they have in the land as Tenants in Taile or pur autervie or Ioynt-tenants for these can no more devise the land they doe so hold then they could before the Statute But such as are seised of land in Common or Coparcenery may devise their land as well as those that are sole sâ—ised And if two be Ioint-tenants for life the Fee-simple to one of them he that hath the Fee-simple may devise his Fee-simple after the death of his companion Neither doth this Statute enable those that are seised of lands in Fee in the right of their houses and Churches to devise the same lands And therefore Bishops Deanes Pâ—rsons Vicars Masters of Hospitals or the like can no more devise the lands belonging to their Bishopricks c. then they could before the Statute but the lands they are seised of in their own right they may devise like other men 3. Heridiments that are not of any yearly value are some of them devisable 〈◊〉 10. 81. 〈◊〉 32. super 〈◊〉 111. and some not for if the King grant to one and his heirs bona catalla felonum fugitivorum vel ut lagatorum Fines and Amercements within such a Manner or Village in this case the owner can neither devise these things to another as part of the two parts nor leave them to discend for a third part And yet if one have a Mannor unto which a Leet Waife Estrayâ— or the like is appendant or appurtenant there by the Devise of the Mannor with the appurtenances these things may passe as incident to the Mannor But if a man have a Hundred with the goods of Felons Out-lawes Fines Amercements Retornabrevium and other such casuall Heriditaments within the same Hundred and these have been usually let to Farm for a rent in this case these things may be devised or left to discend for a third part 4. Such incertaine Franchises as before that are Heriditaments of no yearly value albeit Coo. 10. 8â— 82. super Litt. 111. Coo. 3. 35. 30. 34. they are not devisable yet may restâ—aine the devise of a mans lands and tenements and make it void for a third part if they be held in Capitâ— for if it is not requisite that the thing held by the Tenurâ— in Capite be deviseable and such things as may not bee left to discend to the Lord for a third part and to satisfie him his duties may notwithstanding be devisable or restraine the Devise of other lands and tenements and make it void for a third part And therefore a Reversion upon an estate taâ—le which is dry and fruitlesse if it be holden of the King by Knights Service in Capitâ— will hinder the Devise of the third part of a mans lands and tenements Also an estate taile of lands held in Capite may restraine the Devise of a third part of other lands And therefore if such lands be conveyed to one and the heirs of his body the remainder to another and he have other lands in Socage if he have any issue he can devise but two parts of his Socage land And where the Statute speaks of a remainder it is to be intended of such a remainder only as may draw Ward and marriage by the Common-Law and this is that remainder only that doth hinder a Devise And therefore if A be seised of lands in Socage Tenure and B be seised of lands in Fee held in Capite by Knights Service and B make a Lease for life or gift in Taile to C the remainder to A in Taile or in Fee in this case A during the estate for life or in Taile may devise all his Socage land notwithstanding this remainder But if a man make a Lease for life or yeares and after grant the reversion for life or in Taile the remainder in Fee and after the Grantee for life dyeth or Donee in Taile dyeth without issue in this case this remainder which now is in point of reversion will restraine the Devise of other lands and make it void for a third part 5. In all Coo. 10 81. 11 24. 3. â—0 34 35. supeâ— Lâ—â—t â—â—1 Dyer 158. cases where a man is restrained to devise any part of his lands held in Socage hâ— must have lands held in Capite at the same time and therefore the time of having of lands to devise and holding of other lands in Capite and disposing of the lands to be devised must concurre And therefore if a man be seised of an Acre of land in Fee held of the King in Chiefe by Knights Service and of other two Acres in Fee held in Socage and enfeoffee his younger sonne of the Acre held in Capite and of one of the other Acres or convey it to the use of his wife or for the paiment of his debts c. and after purchase land held in Socage in this case he may devise all the new purchased land held in Socage without restraint So if a man bee seised of lands held by Knights Service in Capite in possession reversion or remainder and of lands held in Socage and by his Will in writing doth devise all
the said lands and after the land held in Capite is recovered from him or aliened by him bonâ â—ide in these cases the Devise is good for all the land held in Socage And hence it is That if the King grant land to one in Fee Farm to hold in Socage at a rent and after grant this rent to another and his heires to hold in Capite and the Grantee of the rent doth grant it to him that hath the land in this case because the rent is extinct and he cannot be said to hold lands in Capite this shall not restraine the Devise of any of his lands And yet if a man hold some lands by Knights Service in Capite and other lands in Socage and bee disseised of the lands held in Capite he cannot devise all his Socage land but the Devise will be void for a third part for he is said to have that land still whereof hee hath the right And albeit the Statute say that he that hath lands held of the King in Capite and other lands in Socage may give two parts for the advancement of his wife paiment of his debts preferment of his children whereby he is restrained to devise any more And therefore if by act executed in his life time he convey two parts to any such uses or intents he cannot devise any more by his Will but the residue must discend yet this also is to be intended of the land he hath at the same time For if a man be seised of land held in Socage of the yearly value of 20l. per annum and he hath not any land held in Capite by Knights Service and he make his Will in writing and by it devise his Socage land to one in Fee and then purchase land of the value of 20 s. per annum held in Capite and die this will make the Devise void for a part of the land that is held in Socage But if a man seised of land in Fee of Socage Tenure assure it to the use of his wife for her â—ointure and after purchase lands held in Capite by Knights Service he may devise two parts in three of all this Capite land and the King shall not have any thing out of or for the Socage land If a man seised of lands part of which are Coo. 3. â—4 〈◊〉 â—4 held in Capite and part in Socage make a Feoffment of the lands held in Capite being two parts in three of the whole to the use of him and his wife for life with divers remainders over in this case he may not devise any of the Socage land And if a man have no Socage land but Capite land and convey it away iâ— Fee-simple keeping no Reversion to any such use and after purchase Socage land he may devise all the Socage land newly purchased 6. As Coo. 3. 32. the Testator enabled to devise by this Statute without restraint is and must be one that hath the land he doth devise at the time of the Devise made and no other land then to be an impediment to his Devise so he must have a sole estate as well in the land he doth leave to discend to the heir as in the land he doth Devise And therefore if lands held in Capite be conveyed to a man and his wife and the heirs of their two bodies and this man hath other lands whereof he is sole seised held of the King in Capite by Knights Service in this case he may not devise two parts of the whole supposing this may suffice for the Kings third part for he may devise but two parts of the residue i. e. of that whereof he is sole seised either at the time of making of the Will or at the least at the time of the death of the Testator 7. The estate of the land that is held must continue after Coo. 10. 8â— the death of the Tenant otherwise it will be no restraint And therefore if Tenant in Taile be to him and the heirs males of his body the remainder in Fee to another of Lands held by Knights Service in Capite and he is seised of other lands in Socage in Fee and by his Will in writing devise all the Socage land and die without issue male in this case the Devise is good for all the Socage land And so also it is where the estate the Ancestor had of the land held is defeated by condition 8. That which a man cannot dispose by any act in his life time shall not be taken for any such Mannors c. Coo. 〈◊〉 32. whereof a man may devise two parts by authority of this Statute at his death And therefore in the case of an indevided estate of lands between husband and wife where the husband can make no disposition for longer time then during the Coverture these lands are not to bee esteemed such as are to be accounted amongst the lands whereof two parts in three are devisable 9. The Tenure by Coo. 10. 84. 3. 34. Knights Service must continue after the death of the Devisor otherwise the land so held will be no restraint And therefore if the King grant land to one and his heires to hold during his life by Knights Service in Capite and after in Socage or to hold during his life in Socage and after by Knights Service in these cases the Grantee may devise all his land notwithstanding the Tenure of this land 10. The King or other Lord must have a full and clear Coo. 3. 32. 31. super L. 〈◊〉 111. 10. 8â— yearly value of the third part left to discend to him and the value is to be esteemed as it is and doth happen to be at the time of the death of the Testator for the King or other Lord must have the like and equall benefit for his third part as the Devisee hath for the two parts without diminution or substraction when therefore a man will have his Devise good for the residâ—â— he must take care that the third part be so left for if the third part be not valuable or be charged with any rent c. or be upon any incertainty as if it be upon a possibillity only as where a man and his wife be seised of a joint estate Taile made during the Coverture and he Devise other lands to her on condition that she shall wave her estate made during the Coverture and so intend that that part of his land shall be left for the Kings part this Devise will not be good for the residue and albeiâ— the wife doe wave the estate after the husbands death yet this will not help the matter or make the Devise good for that part for which it was void before But it is not materiall by what Tenure the third part discending be held For it is holden by the better opiâ—ion That if a man be seised of 20 l. land held of the King in Capite and 10 l. land held
generally but doth alwaies breed the children of the Testator in thiâ— case it seems that this education of the children shall be taken for an assent against her to vest the estate in the eldest sonne And if a man possessed of a term of years give it to his wife if she Plow 516. Perk Sect. 57â— live so long and after her decease the remainder of years to I S and make his wife Executrix and she enter claiming to have it only for her life the remainder to I S according to the Devise in this case this is a good assent for the execution of the remnant of the term in I S. And if a term be devised to A for life the remainder to B and the Executor assent to the Devise of A in this case Coo. 8. 95. 4 â—6 10. 47 Perk. Sect. 574. this is a good assent to the devise of B and shall execute the sâ—me also whether the Executor have assets or not So if a man possessed of a term of 20 yeares devise it one for 10 yeares and after to another for the remnant of the term or if the Devise be to one for so many years of the term as he shall live and after to another for the rest of the time in all these cases an assent to the first Devisee is an assent to the second also And so also it seems is the Law of a chattell personall when the occupaâ—ion thereof is first devised to one 37 H. 6. 30. and then the thing to another And if one that hath a term of years give it to his wife for her life the remainder to his sonne and make Plow 519. 54â— Coo. 3. 96. 10. 47. her Executrix and she enter claiming by force of the Devise and not as Executrix in this case this is a good assent to execute the Devise to him in remainder If one be possessed of a term of years of land and he devise it to Perk. Sect. 574. 75. 〈◊〉 Devise 6. one of hiâ— Executors alone for part of the time and the remainder of the time aâ—ter to a stranger and that â—xecutor alone albeit â—e enter generally doth occupy the land himself and the other Executors do not intermeddle therewith in this case it seemes this is a good assent to execute the Legacy to him in remainder for the rest of the terme And yet if one give goods to one of his Executors for life and after to a stranger for life and this Executor alone get the goods into his own hands and occupy them alone all his life time it seems this occupation without some assent will not execute the gift in the second Legatee If one possessed of a Lease for yeares devise it to his Executors and devise a rent out of it to I S and the Executors pay the rent Plow 540. 544. Coo. 8. 96. Plow 541. 542. 5â—â— this is a good assent to the whole Legacy But if he devise a rent or Common out of it for certaine years to I S and after devise the term to I D and the Executor doth agree that I S shall put in his cattell or doth pay the rent to I S which is a good assent to the Legacy of I S this is no assent nor execution of the Legacy of I D And yet perhaps if he devise a rent at first to I D for part of the term and another rent to I S for the residue of the terme afterwards in this case it seems that an assent to the first is not sufficient to perfect the Devise of the second Legatee And yet if a Termoâ— devise the occuaption or profits of his land to I S for 10 yeares of his â—erme and after devise the land it self to I D for the rest of the term in this case if the Executor assent to the Legacy of I S this will be a good assent to and execution of the Legacy of I D. If one possessed of a term devise it to I S for life the remainder to Coo. 10. 52 I W and make I S his Executor and I S take a release from I W of all his right to the land this is an implicite assent to the Legacy of I W. If a man devise the occupation of a book or any other chattell personall to I S or that I S shall have the occupation of any such like Old N. B. 80. 37 H. 6 30. thing during his life and that after his decease it shall goe to I D for ever and the Executor deliver the thing to I S it seemes this is a good execution of the Legacy to the second Devisee I D and therefore after the death of I S he may seise the goods and hold them according to the Devise If lands or any rent or other profit to be taken out of lands be Perk. Sect. 576. 597. â—7â— 579. Coo. super Liâ—◠〈◊〉 devised to a man in Fee-simple Fee tail for life or years in these â—7 How a Devisee may attaine the thing devised And what remedy he shall have to recoverit or damages for it cases the Devisee may enter into and have and take the thing devised without the leave or agreement of the Executor or Administrator and so he may whether there be any Executor made or not and whether the Will be proved or not for the Ordinary and the Executor have nothing to doe with these things And if the Devisee in any such case be disturbed in the having or taking of such things he may have the same remedy as men have in other cases And where the land is devised by custome if the heire enter before the Devisee the Devisee may be relieved by a Writ called Ex gravi Querela but if the Devisee enter first and then the heire enter upon him the Devisee may have his remedy at the Common-law If lands are given thus I will that my executors shall sell my Trin. 9. 〈◊〉 Loveâ—s caâ—â— Dyer 151. 152. land and with the mony made thereof shall pay 10l to my daughter A and 10l to my daughter B in this case and for this gift A and B may either sue the executors in a Court of equity or have an action of Accompt against them in a Court of Common law If Lessee for years devise his term to executors for life the remainder Dyer 27â— over to I S for the rest of the term and the executor entreth and doth assent to the Legacy and dye and the executor of the executor doth take the profits of the land and keep out the second Legatee in this case it seemes he may have an Accompt against the executor of the executor for the profits of the land But Tâ—in 9 â—a Lovers case if one devise his land to his sonne and his heires except 20l. a yeare for seven yeares to be imployed as followeth and doth appoint his sonne being his executor also to pay that money to his daughters
And the executor or administrator of the Lord shall have Fines assessed upon the Tenants upon their admittances in the Lords time c Stat. 32. H. 8. cap. 37. Coo. 4. 48. Dyeâ— 575. And if I make a Fcoffment in Fee gift in tail or lease for life rendring Rent and the rent is behind and then I dye in this case the arâ—erages of Rent due to me in my life time shall go to my executor or administrator in the nature of a chattell So if a Rent be granted out of land to me in Fee-simple Fee-tail for life or years and it be not paid to me in my life time these arrerages shall go to my executor or administrator and not to any other d â— N. B. 120. L. And so also if a Parson have an annuity in Fee in the right of his Church and it be behind and the Parson dye in this case the executor or administrator not the successor of the Parson shall have the arrerages e Dyer 275. And if I be seised of land and possessed of a stock of cattell and let it to another for years and he covenant by the Lease to pay me and my wife our heirs and assignes 100l by the year during the term in this case after my death and my wives surviving me her executor or administrator and not my heir shall have this payment f Coo. 4. 63. And if one seised of land in Fee make a Feoffment of it to me excepting the trees and after grant me the trees for years or if he make me a Lease of the land first for years and after doth grant me the trees for a number of years to begin after the end of the term of the land in both these cases I have the trees in the nature of a chattell and if I dye my executor or administrator shall have them g Dyer 283. 34 H. 6. 27. And if a man grant to me the next Presentation to the Church of D in this case if I dye my executor or administrator shall have it as a chattell h See supra at Numb 7. And my wife shall have so much of her wearing apparell as is necessary and convenient for one in her estate and condition and therefore that shall not go to my executor But so much of her wearing apparell as she hath superfluous and more then necessary for her shall go to my executor or administrator after my death And the charters and evidences that do concern any of my chattels which my Broo. chatâ—els 12. executor or administrator is to have shall go with the same chattels So also any Charters whatsoever if they be pledged to me for money shall go to my executor or administrator untill the money be paid But otherwise those deeds and evidences that do belong to the heir as incident to the Inheritance shall not go to my executor or administrator after my death But matters of trust and such things as are personall as offices of trust wardships by reason of a Tenure in Socage or Jure naturâ— or the like shall not go to the executor or administrator after the death oâ— him that hath them So an Plow 29â— Coo. 3. 39. 9. 99. executor or administrator shall not have the grasse and trees growing on the ground no more then the soile or ground it selfe whereon they grow So an executor or administrator shall not have the Incidents of a house as glasse doores wainscot and the like no Kelw. 118. See before at Numb 7. more then the house it selfe nor pales wals stauks fish in Ponds Deere or Conies in Parkes Pigeons in Pigeon houses or the like If a Lease for yeares of land be granted to me and my heires Secondly iâ— respect of the case or to me and my successors and I dye my executor or administrator Coo. 10. â—7 Litt. Sect. â—40 Fitz. Accompt 56 F. N. B. â—20 and not my heire shall have this terme The same law is if a wardship or the next advowson of a Church be granted unto me and my heires or if a Covenant or an Obligation be made to me and my heires for in all these cases this is still a chattell in me that shall go to my executor or administrator and hee onely shall take advantage by it And if my heire or successor happen to get the Deed the executor or administrator may recover it from him And if a Lease be made to me for 20 years without naming my executors or administrators or assignes in the Lease in this case if I dye my executor or administrator notwithstanding shall have it during the terme h Coo. super Litt. 46. And if a Lease for years be made New termes of the Law tit assignes to a Bishop and his successors and he dye his executor or admistrator not his successor shall have it And if a man be possessed of a terme of yeares of land and grant it by deed or give it by Will to me and my heires or to me and my heires males or devise Coo. 895. 10. 87. Plow 524. it by Will to A for life the remainder to me and my heires in these cases I shall have these terms of years as chattels and after my death my executor or administrator shall have them h Litt. Sect. 740. And if a man grant a rent out of his land to me and my heires for 20 yeares and I dye my executor or administrator not my heire shall have this rent i M. 7. Ia. Co. B. Wats case Litt. Sect. 739. And if a rent bee granted to me my heires and executors during the life of I S and for one halfe yeare after and I dye in this case the half yeares rent shall goe to my executor or administrator and not to my heire And if I be seised Dyer 5. of land in Fee and make a Lease for years of it rendring rent and then devise this rent to a stranger and the devisee dye in this case his executor or administrator shall have it And if Lessee for life make a Lease for yeares absolutely this in Law is a Lease for so Coo. 7. 12. many yeares if the life so long live and shall go to the executor or administrator after his death If I have a box chest or trunk wherein my writings that doe Broo. Executors 145. 9â— Fitz. Executors 111. concern my inheritance do lie and the same is open and not sealed or locked in this case my Executor shall have it but if it be locked or sealed contra for then it shall goe to him that is to have the writings as incident thereunto And yet if there be any money plate or any other such like thing in the chest also my Executor shall have that thing The Incidents of a house as glasse-windowes annexed with Coo 4. 63. 21 H. 9. 26â— nailes or otherwise to the windowes the wainscot fixed by nailes skrewes or irons put
through the posts or walls tables dormant furnaces of lead and brasse and fats in a brew and die house standing and fastned to the walls or standing in or fastned to the ground in the middle of the house though fastned to no wall a copper or lead fixed to the house the doores within and without that are hanging and serving to any part of the house shall not goe to the Executor or Administrator to be divided and sold from the house albeit the Executor or Administrator have a Lease for yeeres of the house and by that meanes hath the house also But if the glasse be from the windowes or there be wainscot loose or doores more then are used that are not hanging or the like these things shall go to the Executor or Administrator If I make a feoffment to I S of land on condition that if he Co 3. 5. 96. Fitz. Executor 8. pay me my heires or assignes or my heires executors or administrators a 100l such a day that the Feoffment shall be void and I dye before the time of paiment in this case if this money be paid at the day my Executor or Administrator and not my heire shall have it If one be seised in Fee of lands whereon there are trees growing and he make a Feoffment of the land to me excepting the trees Coo. 4. 63. 11. 48. and afterwards he doth sell me the trees for ever and after I dye in this case my Executor or Administrator shall not have these trees as they shall in case where the Feoffor doth grant them to me for yeares And if I be seised of land in Fee and I make a Lease for life or yeares of it excepting the trees and afterwards I dye in this case my Executor or Administrator shall not have these trees but they shall goe in both cases with the land If a Lease be made for life or yeares of land whereon a house is standing or timber is growing and the house is prostrate or the Coo. 4. 63. 11. 81. 84. timber is cut or fallen down by whomsoever or what means soever it be the materials of this house and this timber is now become a chattell and therefore if the Lease be without impeachment of waste it shall goe to the Lessee and after his death to his Executor or Administrator but if the Lease be otherwise it shall goe to the Lessor and after his death to his Executor or Administrator But if the timber be cut for reparations only or the Lessee will imploy the materials of the house to build it againe and the Lease do continue it may be so imployed and then the Executor or Administrator of the Lessor may not take it If one be seised in Fee-simple of ground whereon trees do grow and he sell me these trees for money and afterwards I dye before Coo. 11. 50. Perk. Sect. 58. they be cut in this case my Executor or Administrator shall have and may cut them If the Kings teâ—ant by Knights service in Capite be seised of a Mannor whereunto an Advowâ—on is appendant and the Church become Coo. super Litt. 388. void and the tenant dyeth his heire within age in this case the King and not the Executor or Administrator of the tenant shall have the Presentation And yet if in this case the land be held of a common person the executor or administrator and not the Gardian shall have it In all cases regularly where a man doth sowe land whereof and wherein he hath such an estate as may perhaps continue untill the Dyer 31â— Doct. St. 35. Perk. Sect. 59. corne be ripe if he that doth sowe it die before it be cut and severed his executor or administrator shall have it as if the husband sowe the land whereof he hath an estate in Fee-simple Fee-taile for life or for a certain number of years in the right of his wife and dye ere it be ripe in this case the Executor or Administrator of the husband and not the wife shall have it And if one that holdeth land fot the life of I S sowe the land and I S die ere it be ripe and cut the Executor or Administrator of the tenant shall have this corn And if tenant in Tail or in Dower sowe the land they do so hold and dye ere it be cut the Executor or Administrator not the issue in tail nor the heir or him in reversion shall have it So if the husband make a Feossment in Fee to the use of himself for life and after of his wife c. and he sowe the land and after die his Executor or Administrator not his wife shall have the corn But if a Feoffment be made to the use of the husband and wife together in Fee or for life and the husband sowe the land in this case the wife not the Executor or Administrator of the husband shall have the corn So if Lessee for years certain sow the land a little before the end of his term and the term end before it be cut in this case he that is to have the land not the Executor or Administrator of the Lessee for years shall have the corn If there be Tenant for life the remainder in Fee of a Tenancy Coo. 2. 93. and the Lord grant his Seigniory for life and after he in remainder in Fee of the Tenancy dye his heir within age and after the Lord die and after the Tenant for life die in this case the heir and not the Executor or Administrator of the Lord shall have the Wardship If one be seised of land in Fee and make a Lease for years rendring Hill 7. Iac. B. R. per Câ—riam Rent at Michaelmas or within 10 daies after and the Lessor happen to die during the term after Michaelmas and before the 10 daies expired in this case the heire of the Lessor and not his Executor or Administrator shall have the last half years Rent due at Michaelmas If one grant a Rent in Fee and grant withall that if the Rent F. N. B. 120. â—itz Covenant 17. Dâ—er 24. be behind the Grantor shall forfeit 205. nomine poenae to the Grantee and his heirs and the Rent is behind and the Grantee die in this case his Executor or Administrator not his heir shall have this money that is forfeit already So if one make a Feoffment in Fee of land and the Feoffee doth covenant to do divers things to the Feoffor Et quoties defectus fuerit c. that he shall forfeit to him and his heirs 5l and the Feoffee doth fail and breake his covenant divers wayes and the Feoffor dieth in this case his Executor or Administrator not his heir shall have and recover all the forfeitures that are past If a Bishop Parson Vicar Master of Hospitall or any body politique be possessed of any goods or chattels in their owne right Coo. 4. 63. Perk. Sect. 58. Coo. super Litâ— 46.
executor or administrator of a Gardian in Chivalry that E N B. â—6 doth commit waste in the Wards lands shall be charged and may be sued for the heire for it If a man possessed of a term of years devise it to another and Coo. 5. 12. Coo. 8. 94. the executor or administrator of the Devisor before the assent to the Legacy doth commit Waste in the land in Lease in this case he shall be charged with and may be sued for this Waste by him in reveâ—sion But if the executor die his executor shall not bee charged with it for it is a personall wrong that dyeth with the person If a Bishop grant an annuity out of his lands to I S for life and Dyer 370. die in this case it seemes the executor or administrator of the Bishop shall bee charged with the Arrerages due in the Bishops time If a Lease for yeares be made rendring rent and the rent is behind Broo. Executor 127. Coo. 3. 24. 22. and the Lessee die in this case the executor or administrator of the Leassee shall be charged for this rent So also if Leassee for yeares assigne over his Interest and die his executor or administrator shall be charged with the Arrerages before the assignment but not with any of the Arrerages due after the assignment The executor or administrator of a Customer or Controller shall Broo. Exeâ—oâ— 157. be charged upon a Taile of the Exchequer showed to the Testator The executor or administrator shall bee charged for a Ravishment West◠〈◊〉 c. 35. or â—jectment of Ward by the deceased The Executor or Administrator may be charged in the Spirituall Trin. 7. Ia. B. R. 〈◊〉 N B. 51. all Court for Tythes due from the deceased buâ— he may not as it seemes be sued in any Temporall Court for them The executor or administrator of a man that recovereth a debt Curia 21. Ia. B. R. upon a judgement had by the deceased shall be chargable with restitution if the judgement be reversed for error An executor or administrator shall not be charged for any personall Coo. 9. 87. F N B. 117. Dyer 322. 〈◊〉 H. 4. 46. Doct. St. 76. Coo. 8. 94. 133. wrong done by the deceased and therefore no action may be brought against him for any such cause as because the deceased did burne the Deed of the lantiffe suffer a Prisoner at his suite to escape cut down his trees cat up his grasse beate or wound the body of the Plantiffe defame him in his name or the like for all these are said to be personall actions that dye with the person neither is there any remedy to be had against the executor or administrator in equity in these cases neither shall he be charged in any action of accompt for any receit or occupation by the deceased And yet perhaps an action of the case may lie in this case neither will an action of debt lie against him upon the simple contract of the deceased but an action of the case only r Adiudge Hill 40. â—liz B. R. Bowyeâ—â— case Neither will an action lie against an executor or administrator upon an arbitrement made in the life time of the deceased albeit it be made in writing s Hâ—â—l 7. Ia. BR â—per 3 Iustices Neither will any action lie against any Executor or administrator for costs given in the â—tar chamber or Chancery against the deceased in a Suite there but when the party dieth the same is lost and Coo 9. â—9â— 40 Broo. Executor 78. 136. 136. Fitz. Briefe 34â— where a man doth sue an executor or administrator in a Suite hee must charge him as he is v. z. if he be an Executor he must sue him by that name if an administrator then by that name And where there be many Executors and have all accepted they must be all sued but if some of them have refused perhaps the Suite may bee good enough against the rest But otherwise one Executor cannot be charged without his companions except it be in the case of Summons and Severance and in some speciall case where one alone doth the wrong and the like as where one Executor alone doth detain the deeds from the heir for in this case he alone may be charged See more infra at Numb 39. 21 Ed. 4. 25. 4 H. 7. 4. 16. H. 7. 4. Broo. Executors 66. 30. 65. 9. Ed. 4. 12. Fitz. Executors 10. All the Executors where there be more then one be they never 30. What act one Executor or Administrator alone may do And where the act or laches of one may prejudice or barr his companion and where not so many in the eye of the Law are but as one man in which respect the Law doth esteeme most acts done by or to any one of them as acts done by or to all of them And therefore the possession of one of them of the goods and chattels of the deceased is esteemed the possession of them all paiment of debts by or to one of them is esteemed a payment by or to them all the sale or gift of one of them of the goods and chattels of the dâ—ceased the sale and gift of them all a Release made by or to one of them is a Release made by or to them all and the assent of one of them to a Legacy the assent of them all * Adiudge M. 39. 40. Eliz. B. R. And therefore if there be two Executors and one of them deliver up the Obligation to the Debtor whereby he is bound the other Executor shall not recover him in a Detinue So if two Executors have lands or goods in execution and one of them release all his interest this is a totall discharge of the execution * Crompt Iac. 45. 4â—â— 7. 4. And yet if in this case there be any practise between the executor and the Creditor in this matter and there be not Assets besides to pay all the Debts and Legacies here perhaps the other Executor may have remedy in equity against his Co-executor and the Creditor But how the Law is of Administrators quaere for some think that one of them also may sell-goods release debts plead to actions or the like without the other If one Executor atturn to the Grant of a reversion or a rent Dyer 210. Coo. 4. 31. Additioâ— to â—ust Doâ—â—dge 4â— this is as good as if they did all atturn and bind all the rest as in case of assent to a Legacy for in this case the assent will bind all the rest albeit there be not enough to pay the debts besides the Legacy given away by assent but his assent shall not hurr his Co-executors in a Devastavit If one Executor appear to an action sued against them all or Coo. 9. 38. Dyerâ— 10. plead a Plea to it this for the most part shall be said to be the appearance and plea of them all and shall bind the rest
it and cannot If one covenant to make a Lease for yeares to the deceased his executors or administrators and after his death the Lease is made to the executor or administrator accordingly in this Coo. 5. 34. case this Lease shall be said to be assets in his hands and he shall be chargable for so much to any Creditor And whatsoever the executor or administrator must be forced to sue for by the name of executor or administrator being recovered shall be esteemed assets in his hands 6. Albeit the thing be extinct and gone as Coo. 1. 87. Broo. Leases 63. to the executor and administrator himselfe yet it may have his being and be accounted assets as to the Creditors and Legatees And therefore if an executor or administrator have a Lease for yeares of land in the right of the deceased and afterwards he doth purchase the Fee-simple of the land whereby the Lease is drowned yet in this case this Lease shall continue to be assets as to the Creditors and Legatees still c Trin. 7. Ia. B. R. Simmons case Coo. 8. 130. And if the Debtee make the Debtor his Executor or the Debtee dye intestate and the administration is committed to the Debtor in these cases this debt shall be said to continue and shall be esteemed assets for so much as to other Creditors And if a woman Executrix have goods worth 20l. and she marry with one of the Creditors to whom 20l. is owing in this case it seems the husband may not retain the goods to pay himselfe but they shall be assets to other Creditors And yet if the Debtor make the Debtee his executor he may retaine so much as to satisfie his own debt and that he doth so retain shall not be said to be assets in his hands as to any other Creditor And if I S Bâ—rnets case Hill 8. Iac. Plow 184. have goods to the value of 20l. and he is bound to B and C in 20l. a piece and he dyeth intestate and after D doth administer and then B dyeth and maketh D his executor in this case D may retain this to satisfie his own debt and it shall not be said to be assets in his hands as to any other 7. The goods and chattels of other men in the hands of the executor or administrator Kelw. 63. Coo. 6. 5â— Dyer 362. that were in the possession of the deceased if he had no right to them or if he had and they do not belong to the executor will not make the execuâ—â—r or adminisâ—â—ator chargable for these shall not bee esteemed assets in his hands And therefore if the goods of another man be amongst the goods of the deceased and these come all together into the hands of the executor or administrator these goods that are the goods of another shall not be said to bee assets in the hands of the executor or administrator And if the executor doth receive a rent that doth belong to the heir this rent shall not be said to be assets in his hands and hence it is that if Doct. St. lib. 2. cap. 3. the deceased were outlawed at the time of his death that his goods and chattels are not no be accounted assets for they are none of his 8. * Coo. â— 30. Dyer â— If an executor of his own wrong to whom 20l. is owing doth enter upon so much of the goods of the deceased as is worth 20l. intending to pay himself this shall be esteemed assets in his hands to make him chargable for so much to any Creditor or Legatee 9. * 27 H. 3. 6. It the deceased have goods worth 20l. and owe 20l. to A and 10l to B and he compound with A for 10l in this case he shall be said to have assets and be charged to pay the debt of B also 10. If a man have a Lease for years worth 20l. per annum at the rent of 5l and he die in this case not the Coo â—5 31 10 H. 7. 5. whole value of the land but so much as is above the rent shall bee said to bee assets in the hands of the executor or administrator The Probate of a Testament is the producting and insinuating Swinb 251 264. 40. Probate Quid. Quotuplex of it before the Ecclesiasticall Iudge Ordinary of the place where the party dyeth or other that hath power to take the same And this is done in two sorts either in common Form i. e. upon the oath of the executor or party exhibiting it upon his credulity that the Will exhibited is the last Will and Testament of the party deceased which is the ordinary course and this the Ordinary may accept if he will Or per testes i. e. which is when over and besides his oath he doth also produce witnesses or maketh other proof to confirm the same and that in the presence of such as may pretend any interest in the goods of the deceased or at the least in their absence after they have been lawfully summoned to see such Will proved if they think good And this course is used only where there is a suspition of the Will and the Caveat is entred or where there is a feare of contention and strife between the kinred and friends of the party deceased about his goods for a Will proved in common form may be called into question at any time thirty yeares after and when the Will is thus exhibited into the Bishops Court the same is to be kept by his officers and the Copy thereof in parchment under the Bishops Seale of his office to be certified and delivered which parchment so sealed is called the Will proved The Probate of the Will as having respect to the 41. Where the Probate of a Will is necessary and where not And by and before whom And in what time it must be proved goods and chattels is in some respect necessary for howsoever Coo. super Litâ— 292 Perk. Sect. 481. as touching any Frâ—e hold of lands devised it is not all materiall and howsoever the Executor before Probate may receive and release debts and do most other acts as Executor yet he cannot sue for any debt due to the Testator And if the Executor delay the Probate the Ordinary may be Processe compell him to come in and accept or reâ—use of the Executorship And when it is proved it must be proved by the Executors or one Perk. Sect. 49. 〈◊〉 2. 486. Coo. 9. 36. â—â— Testament â—â— 5. Plow 280. â—tat 23 H. P. cap. 9. 2â— H. 8. c. 5. See before at â—an 21. of them at least and if all the goods of the deceased be within the same Diocesse wherein he lived and dyed the Executor must prove it before the Ordinary of the Diocesse or before his lawfull Commissary or Deputy or before the Archdeacon or his Deputy or Commissary as their composition is or if the goods be in a Peculiar then before him that
to English so let us also turne some of the Law touching these Deeds out of French into English Bonum quo communius eo melius And I see no more reason why in Law more then in Physick the discovery of the Art should make the Art or Artist the lesse regarded But under correction I should rather think that it will rather make them both the more esteemed as a jewell whose properties are known and that it will make them the more and other men we have before spoken of the lesse to be used and employed in their affairs for the more men know the lesse they think they know and the more they doubt and nothing moves men to be so bold and confident in these matters as their ignorance according to the Proverb Who so bold as blind Bayard And for further answer to this I wish men to see the Preface to the Lord Coke upon Littleton And if any man have any thing else to object and except for some there are that will neither put forth their own strength to doe good nor bear with others that doe so I wish them to undertake the same subject and to perfect and supply my defects And so committing thee to God and this work to thy favourable censure I am Thy true friend W. S. THE CHIEFE CONTENTS of this Book OF Common Assurances in generall Ch. 1. Fol. 1 Of a Fine ch 2. 2 Of a Common Recovery ch 3. 37 Of a Deed ch 4. 50 Exposition of Deeds ch 5. 75 Of a Condition ch 6. 117 Of a Covenant ch 7. 160 Of a Warranty ch 8. 181 Of a Feoffment ch 9. 203 Of a Bargain and Sale ch 10. 221 Of a Gift ch 11. 227 Of a Grant ch 12. 228 Of an Atturnment ch 13. 253 Of a Lease ch 14. 266 Of a Feoffment Gift Grant and Lease ch 15. 284 Of an Exchange ch 16. 289 Of a Surrender ch 17. 300 Of a Confirmation ch 18. 311 Of a Release ch 19. 320 Of a Statute ch 20. 353 Of an Obligation ch 21. 367 Of a Defeasance ch 22. 396 Of a Testament ch 23. 399 Of an Vse ch 24. 501 THE TOVCH-STONE OF Common Assurances CHAP. I. Of Common Assurances in generall THe Common or Generall Assurances or Conveyances of the Kingdome being that by which commonly the property of things is made or changed are of two sorts or are made two manner of waies viz either by matter of Record or by matter of Deed. Those that are made by matter of Record also are made either by matter of Record of a more high nature and extraordinary way or by matter of Record of a more low nature and ordinary way Those Assurances that are made by matter of Record of a more high nature are such as are made by Act of Parliament of which we intend not to treat at all neither doe we intend to meddle with those Assurances that are made by the King unto his Subjects as being matters more transcendent and intricate but those we intend to treat of are onely the common Assurances or Conveyances that are made between Subject and Subject and are of ordinary and daily use for the transferring of the property of lands tenements and hereditaments from one man to another And of these there are observed to bee tenne kinds two whereof are made by matter of Record as a Fine which is said to be a feoffment of Record and a common recovery which is in the nature also of a feoffement of Record and the rest are by matter of Deed as First by feoffement Secondly by Grant Thirdly by Bargain and Sale by deed indented and inrolled Fourthyly by Lease Fiftly by Exchange Sixthly by Surrender Seventhly by Release or Confirmation both which are in nature of Grants Eightly by Devise or by last Will and Testament And some of these also serve to transferre the property of other things as well as of lands and some of them also have other operations and uses as well as to change and alter property and passe things from one man to another as will appear in their proper places And the first thing we shall beginne upon shall be the learning of a Fine and Common Recovery and first of a Fine CHAP. II. Of a Fine THis word is ambiguously taken in our Law for sometimes it is Termes of 〈◊〉 the law tit Fine Co. upon Lit. 126 127. 120 Plow 357. West Symb. part 2. chap. 1. Fine quid taken for a summe of money or mulct imposed or laid upon an offender for some offence done and then also it is called a ransome And sometimes it is taken for an Income or a summe of money paid at the entrance of a tenant into his land And sometimes it is taken for a finall agreement or conveyance upon Record for the setling and securing of lands and tenements And in this sense it is taken here and so it is defined by some to be An acknowledgement in the Kings Court of the land or other thing to bee his right that doth complain And by others A Covenant made between parties recorded by the Justices And by others A friendly reall and finall agreement amongst parties concerning any land or rent or other thing whereof any suit or writ is hanging bteween them in any Court. And by others more fully An instrument of Record of an agreement concerning lands tenements or hereditaments duly made by the Kings license and knowledged by the parties to the same upon a writ of covenant writ of right or such like before the Justices of the Common Pleas or others thereunto authorised and ingrossed of Record in the same Court to end all controversies thereof both between themselves which be parties and privies to the same and al strangers not suing or claiming in due time And in every Fine there is a suit supposed wherein the party that is to have the thing is called the Plaintiffe sometimes also in another respect the conusee Gonusee or Recognisee Conusor or Recognisor Deforceant or Recognisee the other that doth depart with the thing is called the Deforceant sometimes in another respect the Conusor or Recognisor And it is therefore said to be Finalis câ—cordia quia â—inem ponit negotio adeó ut neutra pars litigantium ab eo de caetero possit recedere And it was anciently the end of a suit indeed for after there had been some contention about the thing by suit the parties became agreed who should have it and so a fine was levyed of it and there was an end of the matter and hence it is said to be fructus or effectus legis because it gives a man the fruit or effect of his suit And to this day therefore a writ doth alwaies goe forth before a fine can be levyed and this is now one of the common Assurances of the Kingdome There are five essentiall parts of a Fine First the originall writ The parts of it Co. 5. 38.
fine as doth contain a grant and render back again either of the land it selfe or of some rent common or other thing out of it to the Cognisor for some estate limiting thereby many times remainders to strangers which be not named in the writ of covenant which also is sometimes with reservation of rent clause of distresse and grant of the same over The manner and order of suing out or levying of a fine is thus Experientia Stat. de modo levandi Fines 18 E. 1 West Simb ut supra 1 H. 7. 9. Broo. Fine 116. First there is an originall writ sued out and this may be a writ of 4. The manner order of levying of a Fine Mesne Warrantia cartae de consuetudinibus et servitiis or any writ of right for upon these or any other writ whereby land is demanded or may be recovered a fine may bee levyed but the most usuall writ whereupon a fine is levyed is a writ of covenant And whiles this writ is depending for howsoever it be the common practise to take out a Dedimus potestatem and have the conusance of a fine before any originall writ be sued forth yet the originall writ is alwaies supposed in law to precede the Dedimus potestatem and therefore doth and must evermore beare Teste before it or else it is erroneous After the originall writ sued forth thre is a Precipe which is the tituling of the writ whereupon the fine is levyed and the concord and agreement of the parties both which are fairly written and that most commonly in parchment after this the partie or parties that is or are to knowledge and levy the fine is or are to come in person before him or them that have power to take the same conusance who are to take notice of the persons that if there be any woman that hath a husband amongst the conusors in the fine they doe examine her whether she be willing and doe it freely without compulsion of her husband After this all the parties that are to levy the fine are to declare themselves before the Judges or Commissioners having power to take the same conusance to be willing to passe their right in the lands according to the agreement and to subscribe their names or markes to the concord and if it be taken by a speciall Dedimus potestatem it is to be returned and certifyed under the hands and Seales of the Commissioners into the Court of Common Pleas that it may be there recorded and finished And there the party Conusee is first to compound with the King for his license for which he is to pay the Kings silver and thereof he is to have an entry on the back of his writ of Covenant and then he is to have it inrolled by the Custos brevium and upon this roll the Proclamations are to be indorsed after this it is to be brought to the Chirographers who is first to make that Note thereof that is called the Note of the fine and hereupon if it be a Remainder Reversion Rent or Seigniorie whereof the fine is levyed the writ of Quid juris clamat Per quae servitia Quem redditum reddit as the case requireth must be sued forth And after this the Chirographer is to enter the fine of record to ingrosse it and to make and to deliver the Indentures thereof unto the Conusee and if it be a fine with Proclamations it is to be proclaimed openly in the Court of Common Pleas once every one of the four termes next after the ingrossing of it and it was to be proclaimed within the County where the land did lye at every assises and sessions the next yeere after the ingrossing of it but this it seemes is not necessary now and the next terme after the ingrossing of it the contents thereof are to be recorded in a Table made for that purpose to be set up in the court of Common Pleas at Westminster in an open place all the terme time and so also at every assises the fine may also be inrolled and exemplifyed A Fine is a Record as of great antiquity so of a high nature great Statute of Fines 18 E. 1. Co. 1. 3. Plow 358. 265. 5. The nature use and fruit of a Fine force and much credit and esteem and it is now become and serves for a formall conveyance of land and one of the common assurances of the kingdome for by this meanes a man may convey his land to another in fee simple fee taile for life or yeers with reservation of rent also It is therefore called a Feoffement of record for it doth countervaile a feoffement with livery of sesin in the country and it includeth all that the feoffement doth and worketh further of his own nature and it is indeed for many purposes the best and most excellent assurance of all others for by the ancient common law it was so high a barre and of so great force and of so strong a nature in it selfe that it did conclude and barre not onely such as were parties and privies thereto and their heirs but all others of full age out of prison of good memory and within the four Seas the day of the fine levyed if they did not make their claim within a yeer and a day And it is still of that force albeit it be somewhat enfeebled by some Statutes that either it passeth all the right and interest of the Conusor to the conusee or else it worketh by way of extinguishment and estoppell and doth perpetually barre the Conusor and his heires of all present and future right and possibility of right or other collaterall benefit to the thing whereof the fine is levyed And if it be a fine with Proclamations it doth in time become a perpetuall barre to all others also that have right except they doe take care to prevent the barre by their claime action or entry within five yeers after the proclamations ended And it barreth Intailes peremptorily whether the heire do claim within five yeeres or not if he make his claime by him that levyed the fine Any person male or female body sole or corporate that hath capacity 6. What shall be said a good Fine or not and how 1. In respect of the persons thereunto and their capacity And by or to whō a Fine may be levied who West Symb. in his Tract of Fines 17 E. 3. 52. 17 Ass pl. 17 Litt. Sect 731. Perk. Sect 24. Fitz. Fines 120. See in grant infra chap 12. Numb 4. to grant or is able to be a grant or by a deed may levy a fine and be a conusor therein but there are certain persons prohibited by law which the Judges or Commissioners that take the conusance of fines ought not to admit or receive and yet if they doe admit them and a fine be levyed by such persons the fine is good and unavoidable Fieri non debet sed factum valet and of
of the Common Pleas may in open Court take knowledge of fines and record them by virtue of their office h Dyer 224. Cromp. Jur. Or the Chiefe Justice of that Court may by the Prerogative of his place take cognisance of fines in any place out of the Court and certify the same without any writ of Dedimus Potestatem i Stat. 15. E. B. Broo. Fines 20. and so also as it seemes may two of the Justices of that Court with the consent of the rest or one of them with a Knight but this is not usual at this day k Dyer 224. Broo. Fines 120. Also Justices of assise by the generall words of their Patents may take certify cognisances of fines without any special Dedimus Potestatem but at this day they doe not use to certify them without a speciall writ of Dedimus potestatem And fines have been levyed before Justices Errants Also cognisances of fines are taken by a speciall writ issuing out of Dedimus potestatem quid Cromp. Iur. 92. F. N B. 147. a. b. 146. F. G. the Chancery called a Dedimus Potestatem whereby commission is given in divers Cases to a private man for the speeding of some Act appertaining to a Judge upon a surmise that the parties that are to doe the same are not able to travaile and by this writ upon such a surmise power may be given to any Serjant at law alone or to any Knight and Gentleman together to take the conusance of such persons and they may by virtue thereof take the same l Curia 39. 40 E. l. 17. either of all or some of the parties m Dyer 220. and that as it seems in any place accordingly n 8 H. 6. 21. But a Justice or other person being cognisee in a fine may not take the cognisance thereof himself And all these that have power to take the conusances of fines are to take great heed of whom they doe take the same and whom they doe admit to make such conusances before them o 34 H. 6. 19 Broo. Fines 11. Cromp. Iur. 32. 92. And therefore they are to see that they know the parties that are to be Cognisors that they suffer not one man to make a conusance in another mans name and that they doe not take any conusance from any person prohibited by law for misdemeanors by such persons herein are punishable in the Star-Chamber p 42 E. 3. 7. 3 H. 6. 42 Perk. Sect. 613. Doct. et St. 155. Cromp. Iur. 55. And if there be any woman that hath a husband that doth joyn with her husband in the conusance the Iudges or Commissioners must take care they doe examine her whether she be willing and doe part with her right in the land willingly or by compulsion of her husband for albeit she be made to doe it by compulsion of her husband yet hath she no way to relieve her selfe when it is done q Stat. 23 El. chap. 3. Dyer 320. And after the Commissioners have taken the same cognisances by Dedimus Potestatem they are to certify the same truly and the day and yeare when it was taken r Dyer 220. Cromp. Iur. 92. and not another time for this may be a misdemeanor punishable in Starre-Chamber and to return the commission into the Court of Common Pleas under their hands and seales within a yeere after the taking of the same conusance at the farthest f Regist or 68. F. N. B. 147. b. And if they refuse to return or certify it the party grieved may by a writ called Cognitionibus admittendis or a Certiorare compell that Commissioner that hath it in his custody or his executor or administrator if he be dead to certify it t Dyer 246. But if any of the cognisors happen to die before it be certifyed then it cannot be certifyed at all for it cannot now be made a good fine u 〈◊〉 1 H. 7. 9. Broo. Fines 124. And so also as some hold if the King die * Dyer 220. Stat. 15. F. 2. 44. 44 E. 3. 38. But if the Kings silver be entred Cognitionibus admittendis quid in paper or upon the back of the writ of covenant as the use is and the party die after this in this case the fine may goe on and will be a good fine notwithstanding the death of the party And Judges for the recording of fines be the Justices of the comÌ„on Pleas onely and therefore all cognisances of fines must be certifyed thither for in that Court onely and not in any other of the Courts of Record at Westminster or in other inferiour Court or ancient demesne are fines to be levyed * 50 Ass pl. 9. But by speciall grant a fine may be levied in a base Court y Stat. 2. H. 6. chap. 28. 37 H. 8. c. 19 5 Eliz. c. 27. And by certaine Acts of Parliament fines may be and are levyed in the county Palatine of Chester county Palatine of Lancaster and county Palatine of Duresme of lands lying within those places And if any persons doe take conusance of fines other then such as before that have power or any other persons or Judges shall record fines or they shall be levyed in any other Court or place then as before such fines are void A Fine may be levyed of all things whereof a Precipe quod reddat Stat. 32. H. 8. c. 7. West Symb. in his Tract of Fines Sect. 25. 50. see in exposition of deeds inâ—ra Numb 3. In respect of the thing whereof the Fine is levied of what things a Fine may be levyed or not and by what names lyeth and of all things which are inheritable and in esse at the time of the fine levyed whether the thing be Ecclesiasticall and made temporall or temporall As of an Honor Manor Island Barony Castle Messuage Cottage Mill Toft Curtilage Dove-house Garden Orchard Land Meadow Pasture Wood Underwood Chappell River Chauntry Corrody Office Fishing Warren Fair Rectory Mines a view of Franke pledge Waife Estray Felons goods Deodands Hospitall Furzes Heath Moore Rent Common Advowson Hundred Way Ferry Franchise Seigniorie Reversion Toll Tallage Pickage Pontage Aquitaile Services Portion of tithes Oblations or the like And therefore fines De honore de S. or De Manerio de S. or De Castro or De Castello de S. cum pertinen ' are good So fines De uno mesuagio uno cottagio uno molendino without Aquatico or Granatico annexed are good So fines De uno T of to uno Curtilag uno Columbario uno gardino uno pomario decem acris terrae decem acris prati decem acris pasturae decem acris bosci decem acris subbosci de Balliva sive officio Ballivat ' de D. de Custod sive officio custod de B. de custod parci forrestae de D. de officio senescalciae de S. cum pertinen ' decem acris bruerae
possession but now this Law is changed and this kind of fine will barre none but such as are parties and privies thereunto But a fine by the Statute or a fine with Proclamations is now much of the same virtue and force as a fine at the common law was for by the Statute of 4 H. 7. it is provided That every fine after the ingrossing thereof shall be proclaimed in the Court the same Tearme and the three next following Tearmes foure severall daies in every Tearme which Proclamations so made the fine shall conclude all parties privies and strangers except women covert persons within 21. yeares of age in prison out of the Realme or of non sane memorie being no parties to the fine so as they or their heires take their action or lawfull entrie within five yeares after these imperfections removed Saving to all persons and their heires other then parties the right claime and interest which they have at the time of the fine so as they pursue it by action or entrie within five yeares after the Proclamations And saving to all other persons such right title claime and interest as first shall grow or come to them after the Proclamations by force of any matter before the fine so as they make their claime or entrie within five yeares after the same grow due or if at that time there be any impediment as aforesaid within five yeares after the impediment removed And by the Statute of 32 H. 8. which is an exposition of this Statute it is provided That all fines with Proclamations levied according to 4 H. 7. by any person of 21. yeares of age of any land c. before the fine levied entailed to him that doth levie the fine or any of his Ancestors in possession reversion remainder or use immediately after Proclamations had shall be a barre against him and his heires claiming only by force of any such entaile and against all others claiming only to the use of him or any heire of his body By which Statute it doth appeare that all the parties to the fine Conusors and Conusees whether they be femes Covert men de non sane memorie or others Infants only excepted who during minority may avoyd it and whether they have a naturall or civill capacity privies viz. privies in bloud as heires whether they be lineall or collaterall or privies in representation as executors and administrators and all strangers also viz. all others besides parties privies that have or pretend any present right or title except women covert and the rest that have impediment that doe make their entrie or claime or bring their action within 5. years after Proclamations had and those persons excepted also if they make not their claime c. within five yeares after the impediment removed all these are concluded i. so shut and closed up together for their right is so extinct hereby as they can never open their mouthes or lift up a finger against it Saving to all others i. such as have no present right at the time of the fine levied and were excepted before such right title claim or interest as shal accrew to them after the Proclamations upon any trust gift in taile or other cause before the fine levyed so as they make their claime c. within five years after their right first accrewed if they have then no impediment or if they have within five yeares after the impediment removed For a more full understanding of which Statutes and this matter these things in generall must first be observed 1. That the persons to be barred by a fine are 1 Parties 2 Privies 3 Estrangers The parties if they be of the age of 21. years are bound for ever by the fine and shall have no time to claim to preserve their right The privies also being heires and executors to the parties and voyd of impediment at the time of the fine levied or not if they claim by the same title that their Ancestor had that levied the fine are barred for ever by the fine and shall have no time to claime to preserve their right †Dyer 3. pasche 7. Jac. B. R. And therefore if my father disseise my Grandfather of land and then levie a fine of the land and then my Grandfather die and after my Father die by this fine I am barred of the land for ever And here note * Trin. 21 Jac. Com. B. Curia in in Will Godfreys case that he that is a privie within the intent of 4 H. 7. is an heire within the Statute of 32 H. 8. Et sic è converso And that privies or heires in estate and bloud as he that is heire to whom the land doth or should descend are within these Statutes and shall be barred by the fine of their Ancestor of that land And so also shall privies in estate that are not privies in bloud as where one hath land in burrow English and levie a fine of it hereby the youngest sonne is barred So if one bee tenant in taile to him and the heires females of his body and he levie a fine having a sonne and daughter hereby the issue female is barred and yet she is not the heire of his bloud But he that is privie in bloud only and not in estate also is not within these Statutes neither shall he be barred by the fine and therefore if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the son levie a fine and die without issue this is no barre to the daughter for howsoever she be heire of his bloud yet she is not heire to the estate nor shall need to make her conveyance to it by him The strangers that are to be concluded by the fine are either 1. Such as have present right and no impediment and these are barred within five yeares if they make not their claime within five yeares after the Proclamations 2. Such as have present right but have impediment of infancy c. and these are barred if they doe not make their claime within five yeares after the impediment removed 3. Such as have no present but future right upon cause precedent and they are either without impediment and then they are barred if they claime not within five yeares after their right doth acrew or they have impediments and then they are barred if they claime not within five yeares after the impediment removed 4. Such as have neither present nor future right at the time of the levying of the fine by reason of any matter before the fine but whose right groweth either entirely after or partly before and partly after the fine and these are not barred at all by the fine but they may make their claime c. when they will And parties privies and strangers to Plow 538. 337 375 378. fines that are barred thereby are such as have naturall capacities or civill for both these are barred And
therefore it is held if such a Corporation as hath an absolute estate and authority of his possessions so as he may maintaine a writ of right thereof as Major and Communalty Deane and Chapter c. levie a fine of their lands they and their successors are barred presently but if a Bishop Deane or Prebend without assent of the Deane and Chapter or a Parson and Vicar without assent of the Patron and Ordinary had levied a fine this would not have barred the successor neither will it barre now with their assent for they are restrained by divers Statutes So also such persons are barred by the fines that are levied by others if they make not their claime in time as if one disseise a Corporation aggregate of land belonging to their Corporation and after levie a fine of it with Proclamations and they doe not make their claime c. within five years hereby they are barred 2. Where the Ancestor is barred by the fine there for Co. 9. 105. the most part the heire is barred also And therefore if tenant in taile be disseised and the disseisor levie a fine with Proclamations and the tenant in taile suffer five yeares to passe without claime c. hereby he and his issues are barred for ever so that the heire doth suffer for the laches of his Ancestor 3. The estates that shall be Co. 9. 104 5 124. barred by the fine are estates by the common Law or by Copihold in fee-simple fee-taile or for life or for yeares the estates also of â—enant by Statute Elegit and of Gardeins in Chivalrie and of Executors that have land untill debts and Legacies be paid And therfore if one enter upon and put out a Copiholder of land and levie a fine thereof and the Copiholder suffer five yeares to passe and make no claime c. the Copiholder and his Lord both are hereby barred for ever And if a lease be made for yeares and the lessor or another before entrie of the lessee levie a fine with Proclamations and the lessee doth not not make his claime c. within five yeares hereby the lessee is barred of his interest forever 4. The Plow 378. Bro. Fines 123. Co. 5. 124. things whereunto these Statutes doe extend are lands and tenements and not a Rent or other profit apprender out of the land and therefore if I have a rent common or Estovers out of land or a way over land or power to sell the land and a fine is levied of the land it selfe and I doe not make my claime of my rent c. within five yeares yet I am not hereby barred of my rent c. And for this cause it is that if a tenant in ancient demesne levie a fine of his land and five yeares passe the Lord is not hereby barred to avoid it foâ— herein he claimeth not the land but his ancient Seigniorie 5. The time in which they must make their claim or bring Plow Lord Zouches case 370. their action that have present right and no impediment is within five yeares after Proclamation had and the time for them which have impediments is within five yeares after the impediments removed 6. The time within which they must make their claime Dyer 3. Co. 3. 86 91. Plow 373. or bring their action whose right doth happen afterwards if they have no impediment is within five yeares after the time that their right doth accrew and if there be any impediment within five years after the impediment removed 7. The persons whose right is saved and preserved are mentioned in the first and second Saving of the Statute of 4 H. 7. and they are strangers and not parties nor privies 8. They that have benefit by the first Saving of the Statute shall have none by the second Saving for he that will be within the second Saving to have benefit by it must be 1 Another person 2 The right must come and acrew to him first 3 It must come to him after the fine and Proclamations 4 His right must be upon some cause or matter before the fine 9. No fine shall Co. 5. 124. 9. 106. barre any estate in possession reversion or remainder which is not devested and put to a right at the time of the fine levied And therefore if one levie a fine of my land whiles I am in possession of it this fine will not hurt me So if the tenant of the land out of which I have a Rent or Common c. levie a fine of the land this shall not barre me of my Rent or Common for I am still in possession of this in the judgement of the Law So if there be tenant for life the remainder for life or tenant in taile the remainder in taile and the first tenant in taile or for life doe bargaine and fell the land by deed indented and inrolled and after levie a fine to the bargainee in this case the remainders are not barred albeit five yeares passe without claime for the Law in these cases doth adjudge them alwayes in possession So if I make a Lease for yeares of land rendring a rent and a stranger levie a fine of the land and the lessee for yeares payeth his rent to me duly in this case I am said to be alwayes in possession and therefore am not barred by this fine of my reversion So if there be a tenant by Copy or lease for life the remainder for life and the first tenant for life accept of a fine of the land with proclamations and 5 years passe without claime c. hereby he that is in remainder is not barred So if one have a lease for years of land to beginne in futuro and a fine is levyed of the land and five years passe after the terme beginne it seemes this is no barre because this estate is not put to a right And for the further illustration of all these things see the examples following c Stat. 4 H. 7. 32 H. 8. Co. super lit 372. 1 Co. 9. 138. 140. Dier 3. If tenant in taile levy a fine of the land intailed with proclamations 2. Issue in taile barred by the fine of his Ancestor or some other according to the statutes this is a barre to the estate taile wherein these things are to be known 1. That wheresoever the issue doth claime by the same title and must make his Conveyance to the lands by him that levied the fine there the fine will barre him and therefore if lands be given to the husband and wife in speciall taile viz. to them and to the heires of their two bodies issuing or the like or if the gift be to them and the heires males or females of their two bodies or to them and the heires of their bodies with the remainder to the right heires of the husband in fee and the husband alone levieth a fine with proclamations by this the issue in taile is barred And yet so as the
n Plow 434 435. So if tenant in taile make a feoffement or be disseised and after levy a fine with proclamations for a stranger hereby his issues are barred for ever o Curia 21. Iac. Co. B. So if tenant in taile die and his issue before his entry having a freehold in law only doth levy a fine with proclamations this shall be a barre to his issues and to his collaterall heires and brothers of the halfe bloud p Idem So if a tenant in taile have foure daughters and one of them levy a fine in the life of the father this will be a barre to her issue for the fourth part of the land q Co. 3. 50 51. 9. 140. But in these cases before and such like where the issue in taile doth levy a fine in the life time of the tenant in taile the tenant in taile himselfe may after levy a fine of the land and thereby barre his issue and the Conusee also to whom his issue hath levied a fine and therefore in all these cases it is supposed that the tenant in taile doth dye and suffer the right to descend to his issue t Co. 10. 50. 9. 141. 3. 50 51. If lands be given by will to one when he shall come to his age of twenty four years to hold to him and the heires of his body and he after his age of twenty one years levy a fine of this land with proclamations this is a barre to the issue in taile If a disseisor make a gift in taile the donee make a feoffment to A. and after levy a fine with proclamations to B. that hath nothing in the land this fine will barre the issues in taile and they shall not avoid it by pleading that partes finis nihil habuerunt c. but it is no barre to the disseisee for he may avoid it by this plea when he will s Co. 3. 84. And à fortiori therefore if a fine be levied by the tenant in taile that hath only an estate of freehold in remainder or reversion is good as if A. be tenant for life the remainder to B. in taile and B. levy a fine albeit this be no discontinuance yet it is a barre to the estate Discontinuance taile t Trin. 21 Iac. Co B. Will. Godfrey versus Wades case But if tenant in taile have issue a sonne and a daughter and the sonne living the tenant in taile levy a fine and dye without issue and then the tenant in taile dieth by this the daughter and the estate taile is not barred So if the younger sonne levy a fine in the life of the father and then the tenant in taile dye this is no barre to the elder sonne So if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the sonne doth levy a fine of the land this is no barre to the daughter So if tenant in taile have a daughter his wife being with childe of a sonne and the daughter levy a fine and after the sonne is borne this fine shall not barre the sonne for these howbeit they be privies and heires to the bloud yet are not privies and heires to the estate 6. Albeit the estate passed by the fine be afterwards 〈◊〉 J Co. 3. 91. before all the proclamations had avoided yet the issue in taile is barred by it And therefore if tenant in taile discontinue in fee and after disseise the discontinuee and levy a fine with proclamations to a stranger and take an estate backe by Render in the same fine and the discontinuee before all the proclamations passe enter and claime and so avoid the fine yet hereby the estate taile is barred a Per Popham et Fenner Iust M. 39. 40. Eliz. B. R. And if tenant in taile infeoffe the issue in taile and after disseise him and levy a fine the issue enter and after the proclamations passe and after the issue in taile doth infeoffe the tenant in taile which levied the fine and dyeth it seemes this fine shall barre the issues in taile 7. This is a barre to the estate taile 7 Co. 1. 76. super Lit. 372. and to the issues onely and is no barre to him in remainder or reversion and therefore when the estate taile is spent this barre is at an end And therefore if an estate be limited to A. and B. his wife and the heires males of the body of A. the remainder to C. and A. and B. have issue and A. dye and B. and her issue or her issue alone levy a fine this will barre the issues of the issues whiles there be any but they faile it will not barre C. in remainder except he suffer five years to passe and so be barred by his non claime So if tenant for life and he that is next in the remainder in taile joyne in a fine this is a good barre to the issues in taile for ever as long as that estate taile shall continue but not to him that is next in remainder nor to any other that shall come in of any remainder in taile or in fee nor to him in reversion x Co. 10. 96. 9 Iac. B. R. If lands be given to A. and the heires males of his body the remainder to B. and the heires males of his body the remainder to the right heires of A. and A. doth bargain and sell this land by deed indented and inrolled to I. S. and his heires and after levy a fine of it sur Conusance de droit come ceo c. to him and his heires by this the remainder to B. is Discontinuance not discontinued but it is a barre to the estate taile by the Statutes and causeth the estate of the bargainee to last so long as the tenant in taile hath issues of his body but if the fine had been before the bargaine and sale it had been a discontinuance of the remainder but in neither case a barre to him in remainder unlesse he suffer himselfe to be barred by his non-claime within five yeares after his remainder happen to come in possession 8. If there be 8 Co. super Lit. 372 tenant in taile the remainder to him in taile and the tenant in taile levie a fine of this land hereby both his estates are barred Et sic de similibus y y Bro. Fines 121. Co. 6. 55. Dyer 4. Co. super Lit. 372. Co. 8. 17. 78. But all this notwithstanding If lands be conveyed to a woman in taile for her joynture within the Statute of 11 H. 7. chap. 20. and she levie a fine of this land this will not barre the issues in taile Or if lands be given in taile to any subject by the Kings own gift or provision and the tenant in taile levie a fine this fine shall not bind the issues in taile nor the King but others it will barre for these fines are
once after the proclamations made wholly removed and after they fall into the like againe and dye in this case their heires shall not have a new five years but the first five years begun in their Ancestors time immediately after the first impediments so removed shall proceed and non-claime of their heires during all the residue of the said five years bindeth them as their said Ancestors should have been bound thereby if they had remained void of such impediments during all the said five years Estrangers to fines that have no present but a future right and 4. That are without impediment having future right upon cause precedent that such as groweth wholly before the proclamations if they be Plow 373. Dier 224. void of impediment shall have five yeares time after their right title claime or interest first groweth remaineth descendeth or cometh to them after the proclamations And therefore if a Mortgagee be disseised and the disseisor doth levy a fine with proclamations and the five years passe and after the Mortgagor payeth or tendreth the money in this case he shall have time for five years after the tender or payment of the money to make his claime c. So if a man levy a fine of his land whereof his wife is dowable shee shall have five years after her husbands death to make her claime c. and not be bound by the five years after the fine l Plow 374. So if tenant in taile levie a fine with proclamations and after the five yeares dyeth without issue the donor shall have five years after his death without issue to bring his Formedon m Co. 78. Plow 373. 374. So if lessee for life levy a fine or make a feoffement in fee and the feoffee doth levy a fine in this case he in reversion or remainder shall not be bound by the next five years after the fine levied but he shall five years next after the death of the tenant for life and if he dye within the five years his heires shall have only so much time as to make up the time before his death five yeares n Plow 374. Co. 9. 105. So also is the law if lessee for life be disseised and the disseisor or a stranger levy a fine in this case he in reversion or his heires shall have five years after the death of the tenant for life and shall not be bound to the next five years after the time of the fine levied o Plow 374. 19 H. 8. 7. Co. 3. 87. 84. Dier 3. So if tenant in taile in possession levy a fine and dye without issue in this case he in the remainder shall have time for five years after the death of the tenant in taile without issue and if he make not his claime c. in that time he and his issues are barred for ever The same law is for him in reversion or the donor if there be no remainder p Co. 3. 87. And if tenant in taile discontinue in fee and the discontinuee levieth a fine with proclamations and five years doe passe and the tenant in taile dieth in this case his issue shall have five years after the Descender to bring his Formedon q 30 El. But if tenant in taile discontinue rendring rent and dye and the issue accept the Rent which doth barre him for his time and then the discontinuee levieth a fine and dyeth in this case the issue of the issue shall not be barred by the five yeares after the fine but shall have five yeares after the death of the issue r Plow 374. And if one de non sane memorie make a feoffement and the feoffee levie a fine and then the feoffer die in this case the heire shall have 5. yeares after the death of his Ancestor and not be bound by the 5. yeares next after the fine levied Estrangers to fines that have future right upon any cause precedent See the Statutes Plow 366 367. Dyer 3. Plow 358. being affected with such impediments when the right first accreweth 5. That have future right and impediment shall have 5. years after the impediment removed to make their claime c. And therefore infants that are borne or in their mothers wombe when such right doth happen to them women Covert mad men Lunaticks prisoners beyond the Seas shall have this time As if a man have issue a son and a daughter and the son doth purchase lands and die and the daughter entreth as his heire and is disseised by A who levieth a fine and 5. yeares claime without claime and tenne yeares after the father hath another sonne who is heire to his brother he shall have in this case a new full 5. yeares after he come to his full age for he is the first unto whom the right descended after the Proclamations But if a stranger to a fine to whom a remainder or other title first accreweth after the fine doe not pursue his right within 5. years hereby he and his issues are barred for ever And in like manner if the first issue in taile to whom the title of the taile first accreweth neglect to make his claime c. within the first 5. years after his title accrewed hereby he is bound for ever and the whole estate taile also And if one abate after the death of a tenant in fee-simple and make a feoffement upon condition and the feoffee levie a fine and 5. yeares passe without any claime made by his heire hereby the heire is barred for the present but if afterwards the condition bee broken and the Abator enter then the heire may have an assise of Mortdancester against the Abator or enter when he will Estrangers to fines that have neither present nor future right at 6. That have no right for any cause before the â—ine the time of the levying of the same fines by reason of any matter Plow in Stowels case before the fines levied whose right groweth entirely before the Proclamations or partly before and partly after may make their claime c. when they please As if a father die seised of land his elder sonne being professed and the younger sonne entreth and is disseised and a fine with Proclamations is levied and then the elder sonne is dearaigned in this case it seemes he is bound to no time So if a tenant cease one yeare and then a fine with Proclamations is levied and after the tenant ceaseth another yeare the Lord may have his Cessavit 20. years after the Proclamations And estrangers to fines that have severall future rights by divers 7. That have future rights by divers titles titles growing at severall times it seemeth shall have severall five Plow 537. 367. 372. years to make their claims c. commencing from the severall times that their titles do first accrew unto them As if tenant for life the remainder in fee make a feoffement in fee and the feoffee levie a fine
same Court A recovery being matter of Record is much of the nature of a Co. 5. 41. 10. 37. 39. 3. 5. 6. 41 42. Doct. et Stud. 41. 49 50. stat 13 Eliz. cap. 5. 23. cap. 3. 7 11. 8. cap. 4. 4. The use nature and operation of it fine and such a thing as whereof the law taketh notice for it is now become a formall and orderly manner of Assurance of lands and one of the Common Assurances of the Kingdome or a common way and meanes to passe land from one to another And therefore if a tenant for life suffer such a recovery of his land it is a forfeiture of his estate an use may be averred upon it as well as upon Forfeiture Averment Covin a fine and it may be avoyded for covin as well as any other kind of conveyance But it is of speciall use and hath a speciall virtue to barre and binde estates in taile and all the remainders and reversions thereupon And because many of the Inheritances of the kingdome doe depend upon this Assurance and it is oft times the greatest security purchasors have for their money therefore it hath much favour from the law at this day And therefore the law will not endure it shall be disputed against for Communis error facit jus And hence it is that it shall not be avoyded for small errors for it is another rule of law Consensus tollit errorem And if a recovery be suffered by a tenant in taile hereby he hath not only discontinued barred and destroyed the estate taile and so defeated himselfe and his issues the former owner of the land and all the remainders and reversions thereupon that should take place after the estate taile whether they be in esse or contingent only but also all former estates leases and charges made by him in remainder or reversion Co. 1. 62. 25. Doct Stud. 49. 44 Ed. 3. 22â— for as when the estate taile in possession is not barred by a recovery the estates in reversion or remainder are not barred for Quod non in magis propinquo non in magis romoto valebit So it is è converso where the estate taile in possession is barred by the recovery all the remainders and the reversions Conditions charges incumbrances and estates dependent upon it are barred also except it be in some speciall cases where the remainder or reversion is in the King And therefore if A be tenant in taile the remainder to B in taile the remainder to C in fee and B or C doth make a lease for years of the land or grant a rent charge out of the land or enter into a Statute or the like or grant the remainder or reversion upon condition and after A doth suffer a common recovery of the land and after dieth without issue in this case the recoveror shall hold the land discharged of all these estates and charges in remainder But otherwise it is if A himselfe make a lease or enter into a Statute and then suffer a common recovery of the land in this case this recovery doth not avoyd but affirme the lease or charge for whereas it was before voydable by the issue in taile or him in remainder or reversion now it is good against them all and the recoveror also shall hold it charged and subject to the lease and charge of the tenant in taile This kind of Assurance therefore is in some respects better then a fine for a fine will barre the heire in taile but not him that is in the remainder or reversion but a recovery will barre them all In every good and binding common Recovery these things are 5. What shall be said a good Common Recovery And who shall be barred and bound thereby or not West Sym. ubi supra Co. super Lit. 372. requisite 1. That there be a demandant a tenant and a vouchee as the efficient causes thereof for if either of these be wanting it is not a compleat recovery And therefore if a common recovery be had against a tenant in taile without a voucher this is voyd And for this it is to be knowne that such persons and by such names may be demandants tenants and vouchees in recoveries as may be cognisors and cognisees in fines a Benets case Hobarts Rep. 275. Pasc Pasc 9 Jac. Earle of Newports case adjudged And therefore a recovery suffered by an Infant appearing by his Guardian is good and will Infant Woman covert bind him and all others b Co. 10. 43. Plow 515. 2 Doct. stud 52. Co. 5. 40 41. West ubi supra So also a recovery had against a woman that hath a husband being joyned with her husband will bind her and all others 2. That there be land demanded as the matter and that the thing be demandable And for this it is to be known that of such things and by such names as a writ of Covenant for the levying of a fine may be had a writ of entry for the suffering of a recovery may be had save only it may not be de fossato stagno piscaria un ' Carucat ' terre estoveriis homag fidelitat ' de servitiis â—aciendis de bovata marisci de selion ' terre de gardino cottagio crofto virgata terre fodina minerae mercatu nec de superiori camera And yet of some of these also it may be by other names Also a recovery may be had of a rent common advouson franchises and the like but not of an annuity 3. That it be had and Co. 3. 3. stat 23 Eliz. cap. 3. suffered in that order and forme as law requireth viz. that there be a writ of entry brought an appearance of the tenant in fait a voucher and an appearance of the tenant in Law the vouchee Judgement and Execution in manner as aforesaid for if there be any substantiall defect in these things the recovery may be thereby avoided by writ of error but if it be only in forme it will not hurt 4 That there be a lawfull tenant to the Precipe i. that the writ Dier 252. Co. super Lit. 46. 3. 6. of entry be brought against one that at the time of the writ brought is tenant of the â—reehold either by right i. that hath an estate for life at least in the land or by wrong i. that is a disseifor of the land demanded and whereof the recovery is had And therefore Co. 3. 6. super Lit. 46. Lit. Bro. Sect. 519. Plow 514 Doct. Stud. 49. See infra in this case the course is where the land to be recovered is in possession and a fine and a recovery is had of it together the fine is sued out first for this doth make the Conusee tenant of the free-hold of the land and then the recovery is had against him And when the recovery is to be had of a reversion and that there is an estate for life in being
Bipartite i. of two parts when there are two parties and two parts of the deed And then commonly the feoffor grantor or lessor hath the one part and the feoffee grantee or lessee the other part And sometimes it is Tripartite i. when there are three partâ—es and three parts and then commonly each party hath a part of the Indenture And sometimes it is Quadripartite c. And according to the parts they doe seale interchangeably one to another And amongst these parts the part sealed by the feoffor grantor or lessor is said to be the principall or originall and the rest are called but Accessary Counterparts or Copies and yet all of them Counterpart in law doe make up but one entire deed These deeds also are sometimes Lit. Sect. 371. 372. times in the first person as Noveritis c. me A B c. dedi concessi c. And albeit it be an indenture so made yet is it good enough And sometimes they are made in the third person as Haec Indentura testatur c. quodidem A B c. dedit concessiâ— c. * Bro. Oblig 51. Co. super Lit. 35. 36. West Symb. â—ib 1. part 1. Sect. 46. The deed Poll is usually made in the first person but if it be made in the third person it is good enough There are divers other distinctions of deeds for some are Publique that doe concerne Countries some of the Prince And some are Private between particular persons and those private persons or Subjects And these only are intended here And of these some are Absolute and some Conditionall some are inrolled and some not inrolled some concern the realty and some the personalty And some are mixt And some of these also containe matter of Grant or Gift amongst which feoffements gifts bargaines and sale grants and leases are the chiefe And some of them containe matter of discharge as releases acquitances and defeasances and such like And some of them containe other matter as confirmations and such like Or as other distinguish some of them are Constitutive and making and some are remissory or liberatory And the first â—ort are some of them creating i. such whereby any estate property or obligation not having essence before is newly raised and created as the first grant of a rent Common way c. estate taile for life years c. And some of them are conveying i. such by which estates properties and the like being already created are conveyed to others as feoffements bargaines and sales grants over or assignements surrenders and the like Those that are of the last sort are such as doe describe and testifie some precedent contract for a duty or fact to be paid performed or done released or discharged of which sort are all acquitances releases and other such like matters of discharge But hereby the way two things are to be observed 1. That Note See West Sym. 〈◊〉 part there may be and are divers other kinde of deeds besides those which are named before for every agreement put in writing sealed and delivered becommeth a deed And Atturnements Exchanges Surrenders Partitioners Authorities Commissions Licences Revocations and the like are usually made given done and granted by deed And there are divers other Instruments concerning Merchants and other affaires if therefore any of these be done by deed such a deed is for the most part subject to the rules of deeds herein laid downe 2 Albeit that feoffements gifts bargaines leases Atturnements Exchanges Surrenders and such like things may in divers cases be as well made and done without as with a deed yet if a man will make his claime to any thing given or granted by such feoffement gift c. by deed the deed must be such a deed as is a good and perfect deed by the rules hereâ—â— after laid down In every deed or writing there are two parts considerable Co. super Lit. 6. 229. 2. 3. 3. The parts of a deed 1. The externall or materiall part i. The parchment or paper waxe and writing 2. The internall or intellectuall part i. the sense force virtue and operation of the words and matter therein contained And in the writing context or matter contained in divers deeds as feoffements grants leases and the like there are certaine formall or orderly parts which make up the whole of which the law doth take speciall notice as 1. The Premisses the office whereof is rightly to set downe the name of the feoffor grantor lessor c. feoffee grantee lessee c. and to comprehend the certainty of the thing granted or leased And herein in some deeds there is also a recitall of some things and in some deeds an Exception of some part of the thing granted before by the deed 2. The Habendum the office whereof is to name againe the feoffee lessee c. and to set forth what estate he shall have and for what time he shall hold the thing given or granted 3. There is set downe and expressed upon what termes and conditions the estate of the thing granted shall be held and therefore there is sometimes contained therein a Tenendum to set forth by what Tenure the grantee shall hold the land granted 2. A Reservation or Reddendum to set forth by what Rent he shall hold the land 3. A Condition 4. A Warranty 5. Covenants 6. The Conclusion after this manner In cujus rei testimonium c. wherein is set forth the date of the deed containing the day moneth and yeare and the stile of the King or yeare of our Lord. And all these are sometimes contained under the Premisses and the Habendum All the parts of a deed indented in Judgement of Law doe Plow 134. 38 H. 6. 24 25. Lit. Sect. 370. 9 H. 6. 35. 35 H. 6. 34. make up but one deed and every part is of as great force as all 4. The nature of â—â—deed indented and a deed poll with the difference that is between them the parts together and they are esteemed the mutuall deeds of either party and either party may be bound by either part of the same And the words of the Indenture are the words of either party And albeit they be spoken as the words of the one party only yet they are not his words alone but may be applyed to the other party if they doe more properly belong to him for every word that is doubtfull shall be applied and expounded to be spoken by him to whom they will best agree according to the intent of the parties and they shall not be taken more strongly against one or beneficially for the other as the words of a deed Poll shall * 11 H. 7. 22. per Brian If therefore A by indenture enfeoffe B upon condition and then doth enter for the condition broken in this case it hath been held that A in his pleading may shew forth the deed that he himselfe sealed and that this is
sufficient And therefore also it is thought that an Indenture made in the first Person is as good in Law as an Indenture made in the third Person when both parties Lit. Sect. 373. have to this put to their Seales for if in an Indenture made in the third Person or in the first person mention be made that the grantor only hath put to his Seale and not the grantee then is the indenture only the deed of the grantor but when mention is made that the grantee also hath put his Seale to the indenture it shall be said to be the deed of them both And although both parts of the indenture are but as one part yet the deed of the grantor is as the Principall and the other is Finches Law 109. not but a Counter-part And therefore if the lessor only seale and not the lessee yet it is as good as if both had sealed and if there be any difference between the Parts the Counter-parts shall be made to agree with the principall and it shall be deemed the misprision of the Clarke This deed is the strongest kind of deed of the two for this Estoppell Plow 434. 421. worketh an Estoppell i. doth barre and conclude either party to say or except any thing against any thing contained in it for if a lease be by indenture both parties are concluded to say that the lessor had nothing in the land at the time of the lease made so that if the lessor hap to have the land after by purchase or descent the lessee may enter upon him by way of conclusion and the lessee by Estopell shall be forced to pay his rent But it is otherwise of a deed poll for this is commonly but of one part which is sealed by the feoffor lessor c. only And this shall be expounded to be the sole deed of the feoffor lessor c. and the words therein contained shall be said to be his words and shall bind him only and be expounded altogether in advantage of the feoffee lessee c. and against the feoffor lessor c. and this doth not worke any Estoppell against either party But if a deed be indented or poll and there be therein reciprocall Covenants between Trin. 38 El. Co. B. per Curiam Co. super Lit. 143. them from one to another albeit there be but one part yet if each of them seale it and deliver it the one to the other this is good for both parties and each of them that can get the deed into his hand to shew or plead may take advantage thereof against the other And in this case the deed is usually kept by one indifferent between them both Note here first of all that some deeds are void from the beginning See Grant infra 5. When and where a deed shall be said to be good and sufficient And when and where not but void or voiâ—â— ab iniâ—is and doe never take effect and amongst these some are absolutely void and void against all persons and some are void only to some purposes and against some persons Some also that are not void from the beginning are notwithstanding voidable and that sometimes by the party himselfe that made them or any others and sometimes by others and not by himselfe And some deeds are good in their first creation and well made at the fâ—st but become void by some matter ex post facto And this may be either by an extrajudiciall act as rasure or the like or by a judiciall act i. when by the sentence of a Court a deed is damned and made void which is called a Vacat of the deed A vacat of a deed To the making of every good Deed containing any agreement Co. super Lit. 225. 35. 36. Co. 2. 4. 5. these things are requisite 1. Writing i. That it be written in Things requisite to make a deed good parchment or paper and that the agreement be legally and formally set downe and be sufficient in Law for the composition and frame of the words And this is called the legall part the Judgement whereof belongeth to the Judges of the Law 2. That there Perk. Sect. 149. 137. be a person able to contract and to be contracted with and a thing to be contracted for and that all these be set down by sufficient names 3. Reading i. That if it be an illiterate man that See infra is to seale the deed and he desire to heare it read that it be truly read or the contents thereof truly declared to him 4. Sealing i. See infra That the deed so written be sealed by the party or some other by his appointment for a further testimony of his consent thereunto 5. Delivery i. That the deed so written and sealed be delivered Perk. Sect. 137. c. by the party or some other by his appointment as his deed And these last things being matters of fact are to be tryed by Jurors 6. That the ground foundation end and purpose of making the See infra deed be good and not against the Law Otherwise in most of these cases the deed is voyd ab initio Also in some cases to perfect the contract and make the conveyance of the thing intended to be passed thereby good some other ceremonies or complements are requisite as Inrollment Livery of Seisin Atturnement otherwise the deed in part at least becommeth fruitlesse and vaine For a deed may be void either for that the writting is not in parchment or paper or being so is not legally and formally drawn or being so there doth want a person able to give or make or capable to have or take or a thing to be contracted for or if so for that it is not duely sealed and delivered or if so for that it is not truly read at the time of the sealing and delivery or if so for that it is made void by some speciall law as being made upon an usurious Contract by duresse or the like Or it may at least in part lose his force afterwards by neglect of inrollment Livery of Seisin or Atturnement in cases where these things are requisite Every deed well made must be written i. The agreement Perk. Sect. 118. Co. super Lit. 171. must be all written before the sealing and delivery of it for if a 1. In respect of the writing of it man seale and deliver an empty peece of paper or parchment albeit he doe therewithall give commandement that an obligation or other matter shall be written in it and this be done accordingly yet this is no good deed 2. This writing must be in paper or 2 Co. super Lit. 229. F. N. B. 122. Lit. 27 H. 6. 9. parchment for if an agreement be written on a peece of wood linnen the barke of a tree a stone or the like and this be sealed and delivered this is no good deed b Co. 2. 3. But
that it 6. In respect of the ground and end of it have a good foundation and be to a good end for albeit a deed have all the qualities of a good deed before required viz. that it be well made read sealed and delivered yet it may be void or at least voidable for others causes as when it is either unjustly gotten and obtained or corruptly in pursuit and execution of some dâ—shonest agreement or to a dishonest end or purpose made A deed therefore Co. 2 9. Perk. Sect. 16. 〈◊〉 14â— 45 E. 3. 6. whether it be a feoffment gift grant lease release confirmation Manaâ—â—e or Duâ—â—sse Quid. or obligation that is made or obtained by manasse or duresse i. when one doth threaten another to kill or maime him if he will not make him such a deed or doth imprison another untill he make him such a deed and thereupon he make the deed a deed thus obtained by force and through feare to avoid danger is void and will not bind him that made it nor availe him to whom it is made In which matter these things must be observed 1. That there must be some threatning of life or member or imprisonment or some imprisonment Bro. Duresse in toto 9 H. 7. 24. 21 E. 〈◊〉 13. or beating it selfe for if it be only a threatning to take away goods or to burn a house or the taking and keeping of a mans goods or the like this will not make the deed made upon that occasion to be per duresse 2. It must be a threatning beating or imprisonment of the party himselfe that doth make the deed or of his wife for if it be a threatning beating or imprisonment of any other besides the party himself that doth make the deed or his wife this will not make the deed to be by duresse 3. The threatning beating or imprisonment must bee to this end and hereupon the deed must be made for otherwise the deed shall not be said to be by duresse As for examples If foure do threaten one to imprison him if he will not seale a deed to one of them 4. and he do so this deed shall be said to be gotten by duresse and therefore void And if one threaten a man to kill him unlesse he will seale a deed to him and three others and he doe so this is void as to all the foure For if one threaten another to kill or maime him if he will not seale a deed to a stranger and thereupon he do so this is void as if it were to the party himselfe If one threaten to kill wound or imprison me to make me swear or promise to seale him such a deed or imprison me untill I do so and afterwards at another time and in another place and when I am at liberty I do it accordingly this shall be said to be made by duresse and void If I be in prison at one mans suit and then another man doth cause me to be used more severely in prison to compell me to make him some deed which I do thereupon make to him this deed shall be said to be gotten by duresse and therefore void But if I be imprisoned at one mans suit be the cause just or not and being in prison I make an Obligation or any other deed to a third man this shall not be said to be by duresse but is a good deed So if one threaten me to take away my goods burn or break my house enter upon my land kill or wound my father or mother brother or sister or friend or doe imprison any of them and thereupon I seale a deed this is good and shall bind me So if one distraine my beasts to compell me to seale a deed and will not deliver them unlesse I do so and threaten me that if I take the beasts again and not seale the deed he will kill me and thereupon I seale the deed this is a good deed and shall bind me If I be arrested upon good cause and being in prison or under arrâ—st I make an Obligation feoffment or any other deed to him at whose suit I am arrested for my enlargement and to make him satisfaction this shall not be said to be by duresse but is good and shall bind me And therefore if Auditors in an account do commit an accomptant to prison and then he make an obligation to his master for the Arrearages this is good And if one in prison for felony grant a reversion of land to another to help him out of his trouble this is a good grant If A and B enter into an obligation upon the threatning of B only this is a good obligation by A that was not threatned And if one make an Obligation by duresse and after being at Bro. Defesance 17. Estoppell large take a defesance upon it this makes the Obligation good again and the obligee is concluded to say it was by duresse A deed also made upon or in pursuite and execution of an usurious contract i. such a contract as whereupon the lender is sure to have in mony or monies worth for the loane of the thing above the principall Terms of the Law Co. 5. 70. 37 H. 8. ch 9. 39 El. c. 18. 21 Jac. ch 17. 13 El. ch 8. more then after the rate of 8l for the 100l by the yeare Usury Quid. also is void In whiâ—h matter these cases are to be observed If one 6. Decembris borrow 30l untill the second day of June next following to be paid then for it 33l for the principall loane if the sonne of the obligâ—e be then alive and if he die before that time that then he shall pay but 27l which is lesse then the principall in this case this contract is usurious and corrupt and therefore the deed that doth containe it is void If one borrow 100l and for this mortgage land above the value Coâ—â—â—ets case Pasch 7. Jac. B. R. of 8l by the yeare on condition that if the Mortgagor pay the mony at the years end that the estate shall cease this is an usurious contract and therefore the deed whether it be a deed of feoffment grant or lease containing it is void So if I lend another man 10l for a yeare and take security by Statute or Obligation that the borrower pay me the lender 20l. for it this contract is usurious and therefore the Statute and Obligation void But if the agreement and Statute or Obligation be that if the borrower pay not the 10l within the yeare that then he shall pay 20l. for it this is no usury and therefore in this case the deed is good If one come to me to borrow 500l of me and tell me he is unable to pay it together and therefore hee desires hee may pay it in twelve or thirteene years and doth offer therefore to give me for my kindnesse 200l over and above besides the use to let him have it so and
therefore if there bee tenant in taile the remainder in taile or in fee and he in the remainder perceiving the tenant in taile doth intend to sell the land and barre him by a common recovery doth sell his remainder by deed inrolled to the King and after the tenant in taile doth sell the land by common recovery for good consideration in this case the purchasor shall avoid this deed to the King whereby also appeareth that a fraudulent conveyance within this statute may be by way of bargaine and sale And so was it ruled by the Lord Chiefe Justice Hide in evidence to a Jury at Guildhall 3. Car. And if there be a lease for years and the lessor make a fraudulent conveyance in fee M. 4. Jaâ— Cowell Bart. case and then for good consideration maketh another lease to begin at the end of the former lease this conveyance shall be void as to the second lessee And if A make a lease to B for years upon good considerations Per. 2 Iust Hil. 18 Jac. B. R. and after he makes another lease to C of the same thing for the same term to begin at the same time upon good valuable consideration and B doth not discover this but drives this bargaine with C and is witnesse to this second lease and the first lease is not excepted in the second lease it seems in this case the first lease shall be void as to C. And in all these and such like cases albeit the purchasor before he make his bargaine have notice of the fraudulent Co. 5. 60. Co. 3. 83. conveyance yet shall he avoid it as if he were ignorant of it But such conveyances and deeds made as before shall never be said to be fraudulent and void as against him that shall have the thing afterwards if he do not give a valuable consideration for it And therefore if one make a lease that would be fraudulent void as to such a purchasor to A and after make another lease bonâ fide to B but without any rent or fine given for it in this case the first lease shall not be said to be fraudulent as against the second lessee and therfore not void So if one covenant for the advancement of his heirs males c. to levie a fine of land by a day to the use of himself for life and after of his issue male and before the day he make a lease that is fraudulent for many years of purpose and after he doth levie a fine accordingly in this case this lease is good and shall not be said to be fraudulent and void by this Statute as against the issue in taile So if a man that is somwhat foolish and given to wast be perswaded to settle his lands upon some of his friends of purpose to maintaine himself with it and after some of his lewd companions inveigle him and get him for a small sum of mony to conveigh it to them in this case the conveyance first made shall not be said to be fraâ—dulent as against these purchasors and therefore it is good against them And if one that hath a terme for 60. years if he live so long make it away Co. super Lit. 3. and then hee doth forge a lease for 90. yeares absolutely and after by indenture reciting this forged lease for valuable and good consideration doth bargaine and sell this forged lease and all his interest in the land to I S in this case it seems that the first lease is not void and that the purchasor shall have nothing but the forged lease A deed also made of any thing with intent and purpose to deceive Stat. 3 H. 7. 4. 2 R. 2. ch 3. 1â— El. ch 5. Co. 3. 82. 2 To deceive creditors and others of debts and such like duties and defeate Creditors of their just debts and duties is void also as against such persons For it is provided to this purpose by other Statutes That all feoffments gifts grants alienations bargaines and conveyances of lands tenements hereditaments goods and chattells or any rent profit or commodity out of land made by fraud or collusion of trust to him that made the same or otherwise with intent to hinder and delay or put off or put by Creditors or others of their just and lawfull actions suites debts accompts damages penalties forfeitures hariots mortuaries or reliefes shall be void as against them to whom such thing shall belong and hee may recover the thing notwithstanding but all such as are made bonâ fide and upon good consideration are not to be accounted fraudulent by this Statute For the better understanding whereof these cases following are to be heeded If a man a little before his Co. 5. 60. 3. 82. Dyer 295. death make a conveyance of his land to his children or friends of his bloud with a proviso to make it void at his pleasure and he take the profits of it as his own or make a conveyance of it to friends to the intent they shall not be subject to the payment of his debts having bound himselfe and his heires by any especialty or to the intent that a warranty and assets shall not bind his sonne for other land or the like in this case this conveyance shall be void as to them that should have reliefe upon this land by the dissent and especially when the conveyance is made after suites begun and more especially when any judgment is had upon the suits against him that doth make the deed And so also is the law for goods And therefore if one be indebted to A 20l. and to B 40l Co. 3. 80. 83. Bro. Done 20. Plow 54. and be possessed of goods to the value of 20l. and A doth sue the debtor for his 20l. and hanging this suite the debtor secretly makes a generall deed of gift of all his chattels reall and personall to B in satisfaction of his debt and yet doth afterwards continue the occupation and use the goods as his own and after A getteth judgment and execution in this case the deed of gift to B shall be said to be fraudulent and therefore void as against A. So if in this case he give all his goods to B in satisfaction of his debt and before any suite begun by A with any expresse or implicite trust as to the intent that B shall be favourable to the debtor or that if the debtor provide the mony that he shall have the goods again or that he shall suffer the debtor to enjoy and use the goods and pay him as hee can in these and the like cases the deeds shall bee said to bee fraudulent and void for howsoever it bee made upon good consideration yet it is not made bonâ— fide So if one in consideration of naturall affection or for no consideration give all his goods to his child or cousin bonâ fide this shall be a void deed as to the Creditors Et sic de similibus
So if one give all his goods and chattels to his executor in his life time by deed of gift this shall be said to be fraudulent and shall be void as to Creditors And albeit those to whom the deed of fraud is made know nothing of the fraudy yet is the deed fraudulent in that case also as well as where they are privie to it If after a Commission of Bankrupts be sued out the debtor Co. 2. 25. make a deed of gift of all his goods to one of his Creditors in satisfaction of his debt in this case this deed shall be void as against the rest of the Creditors and as to the Commissioners and they may order it with the rest of the estate notwithstanding But if A bonâ fide and for valuable consideration mortgage his land By the two Judges of Assise Aug. 5. Car. in Com. South Lady Lamberts case whereof he hath a term of years to B upon condition that if he repay the mony to B a yeare after that he shall reenter and B doth covenant with A that he shall take the profits of it untill that time c. A doth not pay the money and B hoping that he will pay it in time doth suffer him to continue in possession and take the profits of it two or three years after and in the interim judgment is had against A upon a bond and execution awarded in this case execution shall not be made of this lease for this deed of mortgage shal not be said to be fraudulent as to the Creditor for when a conveyance is not fraudulent at the time of the making of it it shall never be said to be fraudulent for any matter ex post facto If A be seised of the fifth part of the Manor of B and B of the Mich. 19 Jac. Co. B. Miller Potscase 6th part and M cometh to A to buy his part and after M saith to A my Counsell tells me I cannot safely buy of you unlesse B joyn and after B doth grant a rent charge of 15l per annum out of this Manor to C her sonne and the heires of his body in consideration of naturall affection and this was about 1o. Jac. C being then but about three years old with proviso that if D whom B did then intend to mary grant to the said C the like rent of 15l and for the like estate out of 20l. land by the yeare of the land of B then the said grant to be void and after the said A bought the 6th part of the said Manor of B and D her husband being intermaried and after A B and D her husband joyne in the grant to M and in this case it was ruled that this grant to C was not fraudulent and void If one doth hold his land to pay a hariot Co. 10. 56 57. at the death of every one that dyeth tenant in fee simple and he infeoffe his sonne and heire in consideration of naturall affection and mariage to be had between the sonne and I and the son to prevent the Dower of his intended wife during his fathers life makes a lease for forty yeares unto his father if his father live so long and afterwards the mariage is had the father payeth the rent the sonne doth suit of Court for the land and after the father dieth in this case this lease shall not be said to be fraudulent as to the Lord to deceive him of his hariot because it was made to another Stat. 52 H. 3. c. 9. 34 H. 8. ch 5. Co. 6. 76. Lit. Bro. Sect. 59. Plow 49. Co. 8. 164. 9. 129. end A deed also made to defeate the King or other Lord of his 3. To deceive Lords of their wardships c wardship shall be void as to a third part of the thing conveyed And therefore if any tenant that holdeth of the King or any other Lord make a feoffment or other conveyance of his land to defeate and defraud the King or Lord of his wardship primer seisin or any other benefit appointed and preserved for the Lord by the Statutes of 32 and 34 H. 8. shall be void as to a third part thereof against the King or other Lord who shall notwithstanding have their wardship and other benefits as if none such were made As if such a tenant by deed enfeoffe his lineall or collaterall heire within age or make a lease for life the remainder to his heire or make a gift in taile the remainder in fee to his heire or make a feoffment on condition that he shall reinfeoffe his heire at his full age or make a feoffment for the paiment of his debts preferment of his wife and children or infeoffe another to the intent that he shall take the profits till he have an heire male and then to reinfeoffe him all these are fraudulent and void as to a third part of the land and as against the King or other Lord in respect of the benefit they are to have of and by the land But no conveyance in these cases shall be said to be fraudulent and so void for two parts of the land And if one make a feoffment of land to two whereof his heire is one and their heires for mony or other valuable consideration this shall not be said to be a fraudulent conveyance of any part So if such a joyntenant make a feoffment of his moity to a stranger * Dyer 9. Co. 2. 94. And in cases where the feoffment is fraudulent for a third part as before if the feoffee dye or make a feoffment over bonâ fide before the death of the Ancestor in these cases the deed is become good again and the collusion gone If a Dyer 268. Co. 10. 57. man for feare of debts convey his lands to friends with condition that upon payment of 10l they shall convey it to those whom he shall appoint in this case the conveyance shall not be said to be fraudulent as to the King or other Lord for it was done to another end and therefore it is a good conveyance against all men but the Creditors Where deeds shall be void in part or in all for want of inrollment atturnement livery of seisin or the like see afterwards If a deed that is well and sufficiently made in his Creation shall Co. 11. 27. 5. 119. Dyer 59. 261. Perk. Sect. 123. 135. Kelw. 162. Fitz. Release 27. 14 H. 8. 25. Bro. Fait 9. 6 Where a deed good in his creation may become void by matter ex post facto And what will make such a deed void or not 1. By Rasure be afterwards altered by rasure interlining addition drawing a line through the words though they be still legible or by writing new letters upon the old in any materiall place or part of it as if it be in a deed of grant in the name of the grantor grantee or in the thing granted or in the limitation of
hurt and for some cause make void the deed as in some cases it may there it shall not relate But if relation may helpe it as in case where a feme sole deliver an Escrow and before the second delivery she is married or dieth in this case if there were not a relation the deed would be void and therefore in this case it shall relate So if one disseise me of two acres of land in D and I release to him all my right in my lands in D and deliver it to an estranger as an Escrow c. untill a time and before that time he disseise me of another acre there in this case this release shall not by relation extend to this other acre to barre me of that also But as to collaterall acts there shall be no relation at all in this case And therefore if the obligee release before the second delivery the release is void and will not barre the party obligee of the fruit of his obligation If a man that is party or privy in estate or interest or one that doth justifie in the right of one that is such a party or privy shall 9. When and where a deed must be shewed in Court And how long it shall abide there And who may take advantage of it Co. 10. 92. super Lit. 267. 317. 225. 231. 5. 74 Lit. Sect. 375. plead a deed in any Court although he claime but parcell of the originall estate yet in this case he must shew the originall deed to the Court and the reason of this is to the end that the legall part of the deed the triall whereof belongeth to the Judges may approve it selfe i. that it may be seen whether the composition of words be sufficient in Law or not and then that it may appeare whether the estate be with Condition Limitation or with power of revocation c. to the end that if there be any such thing in it and there be no other part of it the other party may take advantage of it and then that it may appeare to be without resure or interlining and the like and also that it may appeare to be well sealed and delivered the triall whereof doth now belong to the Country But strangers to estates that are neither parties nor privies shall not be compelled to shew the deed though they make use of him And when a deed is thus shewed in Court it must remaine in that Court all the Terme wherein it is shewed in the custody of the Custos brevium and at the end of the Terme if the deed be not denied the Law doth adjudge the possession of the deed in him to whom it doth belong But if the deed be denied then it is to be kept there untill it be determined Also when a deed is shewed in Court the adverse party may take any advantage by it that it will afford him as if a feoffement be made by deed poll on condition and the feoffee doth breake the condition and the feoffor doth enter and the feoffee doth sue him and makes his title by that deed the feoffee may take advantage of the Condition Any man that that occasion to use or plead a deed may set forth 10. Where one may say his deed was delivered at another time or in another place the delivery thereof to be at any time after the date of the deed Dier 315. 12 H. 6. 1. Co. 2. 4 5. and in some cases he must doe so if he will have any advantage by it As if he plead a release to an obligation and it beareth date before the obligation in this case he must averre that it was delivered after or it will not availe him But a man may not in pleading set forth the delivery of a deed to be before the date of the deed And yet if it be so that a deed be dated after the time of the delivery of it the deed is good and therefore if he that doth use such a deed doe plead and set it forth as a deed made before the time of the delivery and the party that made it plead non est factum to the deed a Jury upon the triall may finde the truth of Estoppell the case but if hâ— by his pleading set forth the deed to be delivered before the time of the date then the Jury is concluded aswell as the party himselfe for a Jury is estopped to finde any thing contrary to that which is apparently admitted in the record In 12 H. 6. 1. debt brought by an executor the defendant pleaded the release of the Testator which did beare date after the death of the testator but he did averre the delivery of it in the life time of the testator and the Court did not allow of this plea. Sometimes Antiquity added a place where the deeds were made Co. super Lit. 6. as Datum apud B and this was in disadvantage of him to whom the deed was made for if the deed be in generall and without this addition he may alleage the deed to be made where he will An Co. super Lit. 261. obligation made beyond the Seas may be sued here in England in what place the obligee will and if it beare date at the Burdeux in France it may be alleaged to be made in quodam loco vocat Burdeux in France in Islington in the County of Middlesex and there it shall be tried for whether there be such a place in Islington or not it is not traversable in that case Non est factum is an answer to a declaration whereby a man 11. Non est factum Quid. And where this may be pleaded to a deed or not denieth that to be his deed whereupon he is impleaded If any deed or writing be used against a man in any Court and it want writing sealing or delivery or it be not sealed written and delivered as before is set forth the party that is sued upon it or against whom it is pleaded may plead this plea to it So also if a deed by any Alteration of rasure c. become void in this case the party may plead this plea to avoid it So also where a deed doth become void or lose his virtue by the not reading or not true reading of it to an illiterate man or by refusall or disagreement as in the cases before the party may plead this plea to avoid it But in all cases where the deed is voidable and so remaineth at the time of the pleading as if an Infant or man of full age by duresse seale and deliver a deed or if an obligation be well sealed and delivered by two and the deed be joynt and the obligee sue one of them in these and such like cases the party bound by the deed may not plead Non est factum for in the first and such like cases he must avoid it by speciall pleading with conclusion of Judgment si Action c.
and he by writing recite that the defendant hath a terme of years and doth suppose it to begin 1o. Maii 2 Jac. when in truth it doth begin the 20th of August and then sell the same terme in this case this sale is void But if he adde withall these words in the deed And all the interest that the defendant had in the land or if he make sale of it for a certain number of years only this grant may be good notwithstanding the misrecitall If one recite a former lease to be made such a day to I S and Dier 93. 160. then make a new lease to begin after the end of the former lease and mistake the date of the old lease in this case the deed is good notwithstanding this mistake If one grant a reversion and in reciting the lease in possession 8 H. 7. 3. Fitz. Grant mistake the date of it only and recite all the rest truly this will not hurt the grant No more then where a man doth recite that such land came to him by forfeiture and then doth grant it by name for in this case albeit it did not come to him by forfeiture but by surrender yet this mistake will not hurt And yet in case of the King such a misrecitall may make the grant void If I grant to I S all the lands in Dale which I purchased from Dier 50. 87. 376. I D or which came unto me by descent from I D or I give all my goods to I S which I have as executor to I D and in truth I have no such lands or goods but I had them by some other meanes or of some other in these cases and by this mistake the deed is void But if I grant to I S all my lands in Dale by name as white acre which I purchased of I D and in truth I did purchase them of another in this case this mistake will not hurt the deed So if I grant 20. load of wood in Dale in the great wood which I had of the grant of my father and in truth I had not of the grant of my father but of the grant of another in this case the grant is good But of this matter see more in Grant Numb 4. part 5. An Exception is a clause of a deed whereby the feoffor donor 6. Exception Quid. Plow 361. 195. Dier 59. Perk. Sect. 615. Co. super Lit. 47. 3 H. 6. 45. grantor lessor c. doth except somewhat out of that which he had granted before by the deed And this doth most commonly and properly succeed the setting downe of the things granted and is made by one of these words Except ' Preter Salvo Si non or such like And hereby the thing excepted is exempted and doth not passe by the grant neither is it parcell of the thing granted as if a manor be granted excepting one acre thereof hereby in Judgement of Law that acre is severed from the manor But this may be in any part of the deed and so hath it been resolved Hil. 17. Car. B R. Fregunnels case Perk. Sect. 42 c. In every good Exception these things must alwaies concurre 7. What shall be said a good exception or not 1. This Exception must be by apt words 2. It must be of part of the thing granted and not of some other thing 3. It must be of part of the thing only and not of all the greater part or the Plow 19. Co. super Lit. 47. effect of the thing granted 4. It must be of such a thing as is severable from the thing which is granted and not of an inseparable incident 5. It must be of such a thing as he that doth except may have and doth properly belong to him 6. It must be of a particular thing out of a generall and not of a particular thing out of a particular thing or of a part of a certainty 7. It must be certaintly described and set downe As for examples a Plow 195. Perk. Sect. 641. If a man grant al his lands in Essex saving besides or except his lands in dale or all his lands in Dale excepting one house or one acre in certain or one house excepting one chamber in certain these and such like Exceptions are good b Dier 103. Plow 104. 361. 67. Co. 8. 63. 11. 47. 5. 11. Perk. Sect. 642. 3 H. 6. 35. And if one grant a manor excepting one Tenement parcell of the manor or excepting the Services of I S who doth hold of the manor or excepting one Close or excepting one acre or excepting the Advowson appendant or excepting the woods or excepting twenty acres of wood or excepting all the grosse trees these are good exceptions c 14 H. 8. 1. And if one grant a mesuage and houses thereunto belonging excepting the barne or excepting the dovâ—house it seemes this is a good exception for they may passe by the grant of a mesuage c. d Co. 8. 63. 5. 23. And if one grant land excepting the Timber trees thereupon or excepting the trees thereupon or if a man sell a wood excepting 20. of the best oakes and shew which in certain these are good exceptions e In the case of Haward Fulcher. Hil. 3. Car. B. R. So if one have a manor wherein is a wood called the great wood and he grant his manor excepting all the woods and underwoods that grow in the great wood and all the trees that grow elsewhere this is a good exception f Co. 11. 64. And if one grant a mesuage and all the lands and tenements thereunto belonging excepting one cottage this is a good exception g Perk Sect. 113. 644. Dier 157. And if one grant a reversion excepting the rent this is a good exception of the rent and doth keep it from passing by the grant So if a man have a a rent charge out of land and he release his right in the land except the rent So if the Lord release to his Tenant Salvo dominio suo c. these are good exceptions h Plow 361. And if one grant all his horses except his white horse this is a good exception of the white horse i 3 H. 6. 45. Perk. Sect. 643. And if a man be seised of a manor and lease it by deed indented for life exceptis reservatis quod bene liceat to the lessor succidere dare vendere omnes grossas arbores in dicto manerio crescentes c. it seemes this is a good exception of the trees But if the exception be of another thing then the thing granted k Perk. Sect. 639. Dier 59. Plow 361. 67. 370. As if one grant a manor or land excepting 12 d. or excepting the Tithes or excepting one acre of ground which is no parcell of the manor or of the land before granted or if one grant the land descended to him of the part of his
father excepting the land descended to him of the part of his mother these exceptions are void l Dier 97. 264. Co. super Lit. 47. Plow 153. 103 104. 14 H. 8. 1. Doct. Stud. 98. Or if the exception be such as it is repugnant to the grant and doth utterly subvert it and take away the fruit of it as if one grant a manor or land to another excepting the profits thereof or make a feoffement of a close of meadow or pasture reserving or excepting the grasse of it or grant a manor excepting the services these are void exceptions m Dier 59. 263. So if one grant his house chambers cellars and shops excepting his shops it is said this is no good exception And by the like reason if one grant his meadow and pasture grounds except his meadow grounds this exception is not good no more then if one grant two manors or two acres excepting one of them And of this opinion was the Chiefe Justice in B. R. Hil. 3. Car. in the case of Haward and Fulcher. n Plow 524. Dier 264. Br. grant 60 38 H. 6. 38. And yet if a man make a lease for yeares of a Mill excepting the profits thereof during the life of the lessor it is said this hath been adjudged a good exception But I doubt of this case for the exception of the profits of a thing is the exception of the thing it selfe And a man cannot grant an estate and reserve a part of the estate as make a feoffement in fee and reserve a lease for life or grant an Advowson and reserve the Presentation for his life o Co. super Lit. 150. Or if the exception be of an inseparable incident and a thing that cannot be granted by it selfe and from another as if a manor be granted excepting the Court Baron or land be granted excepting the common appendant thereunto belonging these exceptions are void But exceptions of severable incidents are good p Co. 5. 12. Hiâ— 9 Jac. B. R. per Curiam Or if the exception be of such a thing as the grantor cannot have nor doth belong to him by law as if a lessee for years assigne over all his terme in the land excepting the Timber trees earth or clay this exception is not good But if lessee for life make a lease for years or lessee for 21. years make a lease for This difference hath been agreed 20. years or tenant by the courtesie or in dower grant over their estate excepting the Timber trees these are good exceptions And if a lessee for life or years open a Cole-mine and then assigne over his estate excepting the mines or the profits thereof these are void exceptions q Co. super Lit. 47. Plow 53. Or if the exception be of a particular thing out of a particular thing as if one grant white acre and black acre excepting white acre or grant 20. acres of land by particular names excepting one acre of them these exceptions are void r Perk. Sect. 643. 641. Or if the exception be set downe incertainly as if one grant a house excepting one chamber or grant a manor excepting one acre but doth not set forth which châ—mber or which acre it shall be these exceptions are void A Tenendum is a clause of the deed whereby the tenure was heretoforce created And this doth most commonly and properly 8. Tenendum Quid. Co. super Lit. 6. Co. 9. 130. succeed the Habendum and was made by this word Tenendum per servicium c. But sithence the Statute of Quia emptores terrarum when the fee simple doth passe the tenure is alwaies of the chiefe Lord and is thus set forth Tenendum de capitalibus dominis c. And this clause at this day is for the most part omitted altogether A Reservation is a clause of a deed whereby the feoffor donor Co. 10. 107. Plow 132. Co. super Lit. 47. Perk. Sect. 625. lessor grantor c. doth reserve some new thing to himselfe out 9. Reservation or Reddendum Quid. of that which he granted before And this doth most commonly and properly succeed the Tenendum and is made by one or more of these words Reddend ' reservand ' solvend ' faciend ' inveniend ' or such like This doth differ from an exception which is ever of part of the thing granted and of a thing in esse at the time but this is of a thing newly created or reserved out of a thing demised that was not in esse before so that this doth alwaies reserve that which was not before or abridge the tenure of that which was before In every good reservation these things must alwaies concurre 1. 10. What shall be said a good reservation And what not a Plow 132. Perk. Sect. 626. Co. 8. 71. It must be by apt words 2. It must be of some other thing issuing or comming out of the thing granted and not a part of the thing it selfe nor of some thing issuing out of another thing 3. It must be of such a thing whereunto the grantor may have resort to distraine 4 It must be made to one of the grantors and not to a stranger to the deed As for examples b Plow 132. If a man grant land yeelding and paying money or some such like thing yearly this is a good reservation But if the grantee covenant to pay such a summe of money or to doe such a thing yearly this is no good reservation but a covenant to pay a summe of money in Covenant grosse and not as a rent c Co. 5. 111. 8. 71. super Lit. 214. 213. 99. If a lease be made for years rendering a rent to the lessor or his heires in the disjunctive or rendering a rent to the lessor without saying and his heirs c. or rendering a rent during the said terme and doth not say to whom or rendering 10 l. to the lessor and â—5 l. to his heires all these reservations are good But if a lease be made rendering rent to the heires of the lessor this reservation is void because the rent is not reserved to himselfe first d Co. super Lit. 142. If one grant land yeelding for rent money corne a horse spurres a rose or any such like thing this is a good reservation but if the reservation be of the grasse or of the vesture of the land or of a Common or other profit to be taken out of the land these reservations are void e Co. super Lit. 47. Co. 5. 3. Perk. Sect. 626. If one grant a manor mesuage land meadow or pasture or the vesture or herbage of of land meadow or pasture rendring a rent this is a good reservation But if one grant Tithes rents commons advowsons offices a corody mulcture of a Mill a Faire market priviledge or liberty reserving a rent this reservation is void And yet such a reservation also in case of the King
is good And in case of a Subject also if Prerogative a lease be made by deed in writing of any such thing for a terme of years reserving a rent this may be good by way of contract to produce an action of debt though not as a rent to be distrained Debt for And thus by apt words an apt rent out of manors and such like memorable things or divers rents may be reserved upon one grant As if one grant the Manors of A B and C rendring for Co. 5. 55. Dier 308. Co. super Lit. 47. 164. 213. A 20 s. for B 20 s. and for C 20 s. these are good Rents and severall So if one grant the manors of A B and C rendering 3 l. viz. for A 20 s. for B 20 s. and for C 20 s. this is a good reservation but in this case the rent is intire Also one may reserve one rent one yeare and another rent another yeare as 10 s. one yeare and 20 s. another yeare or one may reserve a rent to be paid every second or third yeare and no rent the other yeares or one may reserve one kinde of rent one yeare and another kinde of rent another year and these reservations are good And these Co. super Lit. 225. 8 H. 7. 9. Bro. Fine 36. Reservation 4. reservations may be by fine aswell as by deed or it may be in case where the lessor hath a reversion of the land or upon a partition to make an equality without any deed at all But if it be upon an exchange to make an equality it is not good except it be by deed f Co. super Lit. 214. 143. 47. Dier 222. If two Joint tenants joine in the grant of their land by deed indented and the rent is reserved to one of them this is a good reservation and shall goe to him alone But if it be by word or by deed Poll that the lease is made the rent shall goe to them both g Adjudge Mich. 8. Car. in Blands case And if a man possâ—ssed of a Terme joine his wife with him and they both assigne over this Terme by indenture rendering a rent to them two and the survivor of them and shee doth not seale the deed in this case the reservation as to the wife is void And if the reservation be of the rent to a stranger that is no party to the deed and to him only this reservation is void And therefore if the father and his sonne and heire apparant by indenture lease Hobarts Rep. 274. Oates Fith Co. 3. his land for years to beginne after the fathers death rendering rent to the sonne it is void A Condition is a clause of restraint in a deed or a bridle annexed and joined to an estate staying and suspending the same and making 10. Condition Quid. it incertaine whether it shall take effect or no. A Warranty is a clause or covenant made in a deed by the one 11. Warranty Quid. party unto the other whereby the feoffor donor or lessor doth for him and his heires grant to warrant and secure land granted to the feoffee donee or lessee and his heires during the estate A Covenant is a Clause of agreement contained in a deed whereby 12. Covenant Quid. either party is bound to doe performe or give something to the other And of all these see at large afterwards In the Construction of deeds it must be considered 1. How a Co. super Lit 302. Perk. Sect. 66. deed in the grosse shal be taken and enure 2. How it shall be taken 13. How and to what purpose a deed of grant in grosse shall enâ—â—re and be constrâ—ed and taken and expounded in the severall parts and peeces of it And for the first these Rules are to be known 1. If divers joine in a deed and some are able to make such a deed and some are not this shall be said to be his deed alone that is able as if divers joine in the grant of a thing by deed one alone hath all the estate and the rest have nothing in the thing granted it shal be said to be his grant alone that hath the estate And so è converso If a deed be made to one that is uncapable and to others that are capable in this case it shall enure only to him that is capable 2. A deed that is intended and made Dier 251. Co. 2. 35. super Lit. 49. to one purpose may enure to another for if it will not take effect that way it is intended it may take effect another way And therefore a deed made and intended for a release may amount to a grant of a Reversion an Atturnement or a Surrender or è converso And if a man have two waies to passe lands by the common law and he intendeth to passe them one way and they will not passe that way in this case ut res valeat it may passe the other way As if a man beseised of two acres of land in fee and letteth one of them for years and after intending to passe them both by feoffement maketh a Charter of feoffement and maketh livery in the acre in possession in the name of both the acres in this case the acre in possession only doth passe but if the lessee of the other acre Atturne then the reveâ—sion of that acre will passe also But where a man may passe lands by the Common law or by raising of a use and setling it by the Statute there in many cases it is otherwise As if the father make a Charter of feoffment to his sonne and a letter of Atturney to make livery and no livery is made in this case no use shall arise to the sonne So if a man in consideration of marriage make a feoffement with a letter of Atturney to give livery and no livery is made in this case no use will arise And so was it held by Ch. Justice Popham B. R. for the inteÌ„tion of the parties doth work much in the raising and direction of uses And therefore it is said that when a man doth intend to passe land one way it shall never passe another way contrary to Dier 96. his intent as if one covenant for good considerations to levy a fine of land to the use of I S and his heires if no fine be levied no use shall arise upon the covenant If one by words of Bargain sell give 19 Eliz. Thorold Gordens case and grant make a feoffement of his house for money and intending to passe it by way of bargaine and sale and Inrolment the deed being made there being a Master of the Chancery in the house whereof the feoffement is made he doth acknowledge and deliver the deed before him in this case if the deed be not inrolled the conveyance is void and that delivery shall not amount to a livery of seisin And yet when the intent is apparent to
passe it one way or another Experientia there it may be good either way as where one doth make a feoffement in fee with a letter of Atturney to make livery and in the same deed doth covenant in case livery of seisin be not had to perfect the deed to stand seised to the uses of the feoffement in this case albeit no livery of seisin be made or atturnement had to perfect the feoffement or grant yet if it be in such a case where there is a consideration sufficient to raise the uses by the covenant the uses will arise by the covenant 3. When a deed may enure to divers purposes he to whom the deed is made shall have election which Co. super Lit. 301. Dier 251. way to take it and he may take it that way as shall be most for his advantage As if a deed of grant be made by the words Dedi concessi this in law may amount to a grant feoffement gift lease release confirmation or surrender and it is in the choise of the grantee to plead or use it the one way or the other So if a lease for Co. 2. 36. Dier 30. 302. years be made to me of land for mony by the words demise grant bargain and sell I may take and use this by way of bargain and â—ale or by way of demise at my pleasure So if one have a rent out Dier 109. 319. of land whereof I and my wife are jointly seised and he doth by his deed release give and grant this rent to me in this case I may use this as a release to extinguish the rent or as a grant of the rent as it may make most for my advantage Et sic de similibus But where any inconvenience may grow by such an election there the grantee shall not have an election but it shal enure as it may as where a man may passe land by the common law or by raising of use and setling Co. 2. 35 36. it by the Statute there sometimes it is so And therefore if in the same case before a father make a Charter of feoffement to his sonne and a letter of atturney to make livery and no livery is made hereby no use will arise to the sonne as it will in case of a covenant And if a lease for years be made of a Manor by the words bargaine sell demise and grant and this is to begin at a day to come in this case it must passe entirely as a demise at the common law or entirely as a bargaine and sale and the lessee hath not election to take or use it otherwise or to use it for part one way and for part another way 4. It shall enure as much as may be according to the apparent intent Finches law 58. of the parties And therefore it is that if a feoffement be made of a Manor with an advowson appendant or a bargaine and sale of land in possession and land in reversion together be made and the feoffement is not well executed for want of livery of Seisin or Atturnement or the deed of bargaine and sale is not inrolled in these cases albeit the advowson may passe without livery or atturnement and the reversion without inrolment yet because the intent doth appeare to be that all shall passe together therefore neither the advowson nor the reversion will passe by this deed 5. When a deed is made it shall enure as it may and so as it may have and take Plow 140. 59. Co. super Lit. 30â— the most and best effect that may be according to reason as if tenant for life or years and he in remainder or reversion in fee joine in a feoffement by deed this shall enure in the first case as the lease of the tenant for life and the confirmation of him in the remainder or reversion and in the last case as the feoffement of him in the reversion c. and the surrender of the lessee for years to the feoffee and and no forfeiture of the estate in the lessee for life But if in this case the feoffement be by word it seemes it shall enure first as a surrender of the estate of the tenant for life and then the feoffement of him in reversion ut res valeat And if A be tenant for life the remainder to B for life the remainder to D in taile the remainder to the right heirs of B and A and B joine in a feoffement by deed in this case this is the feoffement of A and confirmation of B but a forfeiture of both their estates whereof the tenant in taile may take present advantage If tenant for life grant a rent charge to him in Co. 5 15. Forfeiture reversion in â—ee and he by his deed doth grant this rent over to another and his heires this is a good grant and confirmation also to make the rent passe to the second grantee in fee simple So if a disseisor make a lease for life the remainder to the disseisee and the dissee doth grant the remainder over this is a good grant and confirmation also If A doe bargaine and sell his land to B by indenture Co. super Lit 147. and before inrolment they doe both grant a rent charge to C by deed and after the indenture is inrolled in this case after the inrolment this shall be said to be the grant of B and the confirmation of A and if the deed be not inrolled it shall be said to be the grant of A and confirmation of B. If one make a Charter of feoffement Co. super Lit. 21. of one acre of land to A and his heires and another deed of the same acre to A and the heires of his body and deliver seisin according to the forme and effect of both deeds it seemes this shall enure by moities viz. he shall have an estate taile in the one moity with the fee simple expectant and a fee simple in the other moity If Co. super Lit. 45. two severall tenants of severall lands joine in a lease for years by deed indented these be severall leases and severall confirmations from each of them from whom no interest passeth and doth not worke by way of Estoppell If B tenant for life of C and he in remainder Estoppell or reversion in fee of the same land joine in a lease for life or years by deed indented this shall enure during the life of C as the lease of B and the confirmation of him in reversion or remainder and after the death of C as the lease of him in reversion or remainder and the confirmation of B without any Estoppell If tenant in taile and he in reversion grant a rent charge in fee it shall bee taken the grant of the tenant in taile and the confirmation of him in reversion but when the tenant in taile diâ—th without issue it shall be taken the sole grant of him
the grant shall be taken strictly 6. When a man doth grant all his lands or all his goods by this grant doth passe not only what he is sole seised or possessed of but also what he is joyntly seised or possessed of with another And so è converso If two men joyn together and grant all their lands or all their goods hereby doe passe not only all they have joyntly and together Co. super Lit. 301. Lit. Sect. 543 544. but all those they have sole and a part 7. Some words in deeds are large and have a generall extent and some have a proper and particular application the former sort may containe the latter as Dedi or Concessi may amount to a grant a feoffment a gift a lease a release a conâ—irmation a surrender and it is in the election of the party to whom the deed is made to use it to which of these purposes he will And hence it is that if a Lord by the words of dedi concessi grant to his tenant that doth hold of him his rent or one that hath a rent charge out of land doth grant it to the tenant of the land that in these cases the rent is extinguished albeit it be by way of grant But a release surrender confirmation c. cannot amount to a grant c. nor a surrender to a confirmation or a release c. because these be proper and peculiar manner of conveyances and are destinated to a speciall end Co. super Lit. 5. 6. Co. 4. 88. Amongst words whereby things doe passe some are collective The terms whereby things are granted expounded compound or generall comprehending many things as hereditaments lands tenements honors Isles villages and the like including lands of severall sorts and qualities And some words are simple or particular as Meadow Pasture Wood Moore and the like The word Hereditament is of as large extent as any word for Hereditament Co. super Lit. 6. 16. Perk. Sect. 114 115. 11 H. 6. 22. whatsoever may be inherited be it corporeall or incorporeall reall personall or mixt is an hereditament By the grant therefore of all hereditaments doe passe Honors Isles Castles Seigniories Manors Mesuages Lands Meadowes Pastures Woods Moores Marishes Furses Heaths Reversions Commons Rents Vicarages Advowsons in grosse and the like things which the grantor hath in feesimple at the time of the grant whether he hath it by purchase or descent And the word Tenement is of large extent also and it seemes Tenement doth comprehend as much as the former And therefore by the Bro Grant 143 Co. super Lit. 6. Perk. Sect. 114. grant of all Tenements will passe as much as by the grant of all Hereditaments The word Land strictly doth signiâ—ie nothing but errable land Land Co. super Lit. 4. Co. 4. 891. Perk. Sect. 114. but in a larger sense it doth comprehend any ground soile or earth whatsoever And therefore by the grant of all Lands doth passe errable lands meadowes pastures woods moores waters marishes furses heath and such like and the castles houses and buildings thereupon but not rents advowsons and such like things Also by grant of any land in possession the reversion thereof will Co. 11. 47. 50. 10. 107. passe And yet by the grant of a reversion of land the land in possession will not passe But here it must be observed that in cases of grants and gifts of Note Edw. case Mich. 9. Jac. curia 9 H. 7. 25. Bro. Grant 87. 11 H. 6. 22. all hereditaments tenements or lands consideration is had of the estate of the grantor for if a man be seised of some lands in fee and have other lands for life or years only and all these are lying within one parish and he grant all his lands tenements or hereditaments in this parish to another in fee simple fee taile or for life Forfeiture and give livery of seisin in the lands whereof he is seised in fee in the name of all the rest by this doth passe no more but his lands whereof he is seised in fee for otherwise it would be a forfeiture for those lands But if the livery of seisin be made in any part of the lands he hath for life or yeares then that part wherein the livery is made will passe and no more And if the conveyance be by bargain and sale and deed inrolled then the lands whereof he is seised in fee simple and for life shall passe and not the land he hath for a terme of years And yet if in this case the grant be for years then all the lands will passe for then there will be no forfeiture in the case Howbeit it is said in Bro. Done 41. pro lege That if a man give or Forfeiture grant all his lands and tenemâ—nts in B that by this leases for years doe not passe and that these words doe intend franktenements at the least These words Honor Isle and Commote are compound words Co. super Lit. 5. Honor. Isle Commote Castle and of large extent And therefore by the grant of them may passe one or more seigniories manors and divers other lands Also a Castle may containe one or more manors And therefore by the grant of a Castle may passe one or more manors And so sometimes è converso a Castle may passe by the grant of a manor But by a Castle most commonly is signified no more but the house or building Plow 169. and the parcell of ground inclosed wherein it doth stand This word Village or Towne is of large extent also And by Co. super Lit. 5. Plo. 168. Town or Village the grant of it a manor land meadow and pasture and divers such like things may passe This word Manor is a word of large extent and may comprehend Manor Co. super Lit 5. 58. Perk. Sect. 116. Co. 5. 11. Plow 168. Dyer 233. 14 H. 8. 1. 9. Iac. B. R. Dyer 30. 8 H. 7. 4. many things And therefore by the grant of a manor without the words of Cum pertinentiis doe passe demesnesse rents and services lands meadowes pastures woods commons advowsons appendant villaines regardant Courts Baron and perquisites thereof that are in truth at the time of the grant parcell of the manor a Baintons case M. 9. But nothing that in truth is not parcell of the manor albeit it bee so reputed will passe by the grant of the manor and therefore if one have a manor and after purchase the lawday or a warren to it and then he grant away the manor hereby the lawday or warren will not passe And yet if by union time out of mind they have gotten a reputation of appendancy perhaps by the grant of the manor cum pertinentiis these things may passe b Co. super Lit. 5. 26. Ass Plo. 54. 2 E. 3. 36. By the grant of a manor also divers Towns may passe An Honour
and he grant this Forest Park Chase Vivarie or Warren Forest Park Chase Warren hereby not only the priviledge but the land it selfe doth passe But if the ground be anothers or if it be his owne and the grant be onely of the game c. in these cases the land or soil it selfe will not passe If a man be seised of a river and by his deed doth grant seperalem Fishing Co. super Litt. 4. piscariam or aquam suam in the same and maketh Livery secundum formam cartae by this grant doth passe onely a liberty to fish within the water and not the soile nor the water it selfe and therefore the grantor may take water still and if it be drie he may take the soile also And if one grant all his fish in his pond by this is granted a power to come and fish for them but the grantee Fitz. Barre 237. may not hereby dig a trench and let out the water to take the fish albeit they may not be otherwise taken If one bee seised of 20 acres of land and hee grant to another Vesture or Herbage of land Co. super Litt. 4. Dier 285. Trin. 5. Jac. B. R. accord and his heires the vesture or the herbage of it and maketh livery of seisin in it secundum formam cartae by this grant doth passe the corn grasse underwood sweepage and the like and for these things the grantee may have an action of trespasse for any wrong done to him But hereby the land it self the houses Profits of lands and great trees thereupon and mines therein doe not passe And if one grant the herbage or vesture of a wood hereby is granted the grasse and underwood onely and not the timber or great trees But if a man so seised of 20 acres of land grant to another the profits of this land To have and to hold to him and his heirs and maketh livery secundum formam cartae hereby the vesture herbage trees mines and all whatsoever parcell of that land doth passe If one grant to another all his deeds or all his muniments hereby 35 H. 6. 37. Deeds will passe all his charters feoffments leases releases confirmations letters of Atturney and the like If one give or grant to another Omnia bona or all his goods by Goods Co. super Litt. 118. 39 H. 6. 35. Dier 59. Perk. Sect. 115. 12 H. 8. 4. Bro. Grant 96. 51. Done 39. 47. Dier 5. Co. 8. 33. this doth passe all his moveable and immoveable personall and reall goods as horses and other beasts plate jewels and houshold stuffe bowes weapons and such like and his money and his corn growing on the ground also all the obligations and bils that are made to him and in his own name doe passe by this but not the debts due by such obligations and bils And some say that leases and terms of years of houses lands rents commons c. rents charge for years wardships of tenants in Capite and by Knights service and the interests that a man hath by Statute Staple Statute Merchant or Elegit doe passe by this grant but of this others doubt And if a man give or grant to another omnia catalla Chattels sua or all his chattels hereby doth passe as much as by the grant of all his goods and by this without question leases for years c. doe passe But by neither of the grants doe passe those goods or chattels which the grantor hath by delivery in keeping for another or the like Neither doth any estate of inheritance or freehold or the charters concerning any freehold passe under these words a Perch Just B. R. 21 Jac. Neither doth any thing in action as debts or the like nor hawkes hounds poppinjays or the like passe by this grant b Adjudged 3 Jac. Kelw. 64. 10. Col. 4. 1. Per Flemming Just 7 Jac. B. R. And yet if an Executor grant omnia bona catalla sua hereby the goods and chattels he hath as Executor as well as his other goods and chattels will passe And if one grant all his leases for years which he hath by any conveyances hereby the leases for years which he hath as Executor as well as other leases for years will passe If one grant to another all his Utensils hereby will passe all Dier 59. Utensils his houshold stuffe but not his plate jewels or any such like thing If a man be seised of land in feesimple or for life and have an estate Grant of all a mans estate right c. Co. super Litt. 345. Litt. Sect. 613. Plow 161. Co. 1. 153. in it for years by Statute Merchant Staple Elegit or the like and he grant all his estate or all his right or all his title or all his interest of and in the land by this grant all his estate and as much as he is able to grant doth passe And if tenant for life of land the remainder to the stranger in taile the remainder to the right heires of the tenant for life doe grant by these words hereby both his estates do passe And if a tenant in tail grant all his estate in the land hereby there doth passe as much as he can grant And all these words also doe cary and passe reversions as well as possessions And if a man have a tearm of years of land and he grant his tearm hereby doth passe the tearm of yeares and all his estate and interest of the land And note that by all these names these things may be granted Note and that for such things as are grantable without deed when Pitz Brief 581. they passe by a verball grant in any of these words the words shall have the same exposition as they have in deeds If one grant all his goods in such a place si quae fuerint by this H. 6. grant nothing doth passe but the goods that are in such a place at the time of the grant and not any other goods that shall bee there afterwards If two men have goods in common and have other goods severally Bro. Done 12. and they give me all their goods by this grant is given all their goods they have in common and likewise all the goods they have in severalty If â—wo tenants in common or others severally seised of land Plow 171. 140. Co. 10 106. join in the grant of a rent of twenty shillings or a horse out of the land whereof they are so seised by this grant the grantee shall have two twenty shillings or two horses If a man grant a rent of ten pound to me To have and to hold Bro. Grant 64. during my life and my wives life and after the death of my wife a rent of three pound to me for my life in this case if my wife die I shall have both the rents But if there bee any words of restraint or determination of
how long this shall be taken to be an exception during the estate The Habendum as all other parts of a deed for the most part shall be taken most strongly against the grantor and most in advantage of the grantee yet so as withall it shall be construed as neer the intent of the parties as may be as in al the cases following doth appear In the Habendum or limitation of the estate and how that shall be taken If land be given or granted to one habendum or to have and to hold to him and his heirs so long as he pay 20 yearly to I S and Plow 557. his heires or so long as such a tree doth stand or the like this is a kind of seesimple but it is limited and qualified and determinable upon this contingent And yet this may become a pure feesimple Feesimple for if land be granted to one and his heirs untill I S pay 100l and I S die before he pay it in this case the estate is become a pure fee-simple If lands be given or granted to a man to have and to hold to him and his heires this is a feesimple pure absolute and perpetuall Co. super Lit. 8 9. Lit. 1. 27 H. 8. 5. Perk. Sect. 239. 240 241. 39 H. 6. 38. Plow 28. Bro. Estates 4. 11 H. 7. 12. Co. super Lit. 15. and this is made by these words his heires for it is a generall rule that these words his heires only make an estate in fee-simple in all feoffments and grants But this rule hath many exceptions for if feoffment of land be made to I S heredibus without the word Suis this is a feesimple And yet if the grant be to I S and I D heredibus without this word Suis contrà for this is only an estate for their lives And if lands be given to a Bishop Parson or the like To have and to hold to him and his successors this is a feesimple And lands be given to a Maior and Communalty or other Corporation aggregate generally without the word Successors or any other word or if lands be given to such a Corporation for their lives this is a feesimple But if land be given to a Parson or the like To have and to hold to him without saying how long or to have and to hold to him for life by this he hath no more but an estate for life a Co. 6. 27. super Lit. 9. And if lands be given to the King generally without any other words this is a feesimple b 15 Ed. 4. 13. 9 H. 7. 11 12 H. 8 9. H. 4. 84. 33 H. 6. 20. Co. super Lit. 9. Ass Pl. 12. Plow 130. 14 H. 4. 13. So if one grant deo ecclesiae de D it is said this is a feesimple in the Parson of D. So also of a grant Ecclesiae de D. per Thirne Iust So if a grant had beene to the Monkes of such a house it had beene a fee-simple in the house And in like manner it is in other cases c As if one recite that B hath enfeoffed him of white acre To have and to hold to him and his heires and then he saith further that as fully as B hath given white acre to him and his heirs he doth grant the same to C by this C the grantee hath the feesimple of this acre And if one grant 2. acres to A and B To have and to hold the one to A his heires the other to B in forma predicta by this B hath a feesimple in this other acre for an estate in fee simple fee taile or for life may be made by such words of reference Also if a rent be granted betweene Parceners for to make an equalitie of partition and it bee granted generally and without any words of heires yet this is a feesimple So where lands are given in Frankalmoigne And so also it is in the cases of a release of right a fine and a recovery If one give or grant land to another To have and to hold to him 27 H. 8. 27. Lit. Sect. 31. Co. 11. 46. and his heires males or to him and his heires females in both these cases there is a feesimple made but otherwise it is when these words are in a Will for then it is but an estate in taile only If one grant land to one To have and to hold to him his right 33 H. 6. 5. heires by this he hath a feesimple And so it shall be taken if it be by fine So if one grant land to I S for life the remainder to Co. super Lit. 22. Co. 1. 95. 66. the heires or to the right heires of I S this is a feesimple so if one make a feoffment in fee to the use of himselfe for life and after his death to the use of his heires this is a feesimple If one grant land to I S. To have and to hold to him and the heires of I S this is a feesimple and all one with a grant to I S and his heires If one grant land to another to have and to hold to him for 20. 20 H. 6. 35. Co. super Lit. 217. yeares and that after the 20. years the grantee shall have it to him and his heires by 10l rent and give livery of seisin by this the grantee shall have the feesimple If one grant land to the Wife of I S to have and to hold to her Co. 2. 91. Dyer 156. Co. super Lit. 22. for life and after to I S in taile and after to the right heires of I S by this I S hath a feesimple And if one grant land to A for life the remainder to B for life the remainder to the right heirs of A by this A hath a feesimple If land be granted to a man and his wife to have and to hold Bro. Estates 86. to them and the heires issuing of them it seemes this is a feesimple and not a feetaile If land bee granted to one and his heires by the premisses of a Co. 2. 21. 24. super Lit. 21. 21 H. 6 7. deed to have and to hold to him for life by this he hath a feesimple So if by the premisses of a deed land bee granted to one and the heires of his body to have and to hold to him and his heires by this he hath an estate taile and a fee simple expectant And so via versa If by the premisses of the deed the grant be to him and his heires to have and to hold to him and the heires of his body by this also he hath an estate taile and a feesimple expectant If lands be given or granted to a man to have and to hold to him Termes of Law tit tail Lit. tit Fee toto in Co. super Lit. 26. â—ee taile and to the or his heires of his body or the or his heires males of his
happen in possession If rent be reserved to be paid at two termes and it is not said by 13 H. 4. Avowry 240. Co. 8. 95. 10. 47. Bro. Done 57. Fitz. Done 2. equall portions yet it shall be so taken and it must be so paid If one be possessed of a terme of years of land and grant it by In other respects deed to I S for his life and after his death to I D in this case the whole terme is granted to I S and his executors administrators and assignes shall have it and not I D. But if a terme were so devised Dâ—vise by Will contra And if one give or grant to another his horse or his bookes for his life and that after his death they shall remaine Remainder to another the remainder is void and the first shall have it for ever for the gift or grant of such a thing for an houre is a gift of it for ever See more in Vse Numb 7. And it is now time that we come to the other parts of a Deed and first to a Condition CHAP. VI. Of a Condition A Condition is a kind of Law or bridle annexed to ones act 1. Condition Quid. Termes of the Law Co. super Lit. 201. staying or suspending the same and making it uncertaine whether it shall take effect or no. Or as others define it It is modus an Equality annexed by him that estate interest or right to the land c. whereby an estate c. may either be created defeated or enlarged upon an incertaine event And this doth differ from a Limitation which is the bounds or compasse of an estate or the time Limitation Quid. how long an estate shall continue And this sometimes is contained 27 H. 8. 16. Co. 2. 70. in a Testament or Will and sometimes in a deed And when it is in a deed it hath no proper place assigned it but it may be in any part of the deed howbeit for the most part it is placed next after the Habendum or next after the Reservation of the rent It is also sometimes annexed to and depending upon estates and sometimes annexed to and depending upon Recognizances Statutes Obligations contracts and other things Conditions are also contained in Acts of Parliament and Records But of these we speake not here in the ensuing matters which are especially to be applied to such Conditions as are usually contained in deeds and annexed to the realty i. to estates in feesimple feetaile for life or years And of these Conditions there are divers kinds For some 2. Quotuplex Co. super Lit. 201. Plow Colthirsts case Co. 8. 43. are in deed or Expresse i. when the condition is expressed by the party in legall terms and by expresse words in writing or without writing knit to the estate as if I enfeoffe a man of land rendring rent at a day on condition that if it be not paid it shall be lawfull for me to reenter And some are in law or Implied i. when the condition is tacitè created by the law without any words used by the party The first sort of conditions also are some of them precedent or executed i. when the condition must be fulfilled â—re the estate can take effect as where an agreement is between me and I S that if he pay me 10 l. at Michaelmas he shall have such a ground of mine for 10. years or I make a lease of land to I S for 10. years provided that if he pay me 10 l. at Michaelmas he shall have the land to him and his heires and in these cases by the performance of the condition the estate is acquired And some of them are Subsequent and Executory i. when the estate is executed but the continuance thereof dependeth upon the breach or performance of the condition as where a lease is made for years on condition that the lessee shall pay 10 l. to the lessor at Michaelmas or else his lease shall be void and in this case by the performance of the condition the estate is held and kept These conditions also are some of them in the affirmative i. that doe consist of doing as providing that the lessee shall pay the rent or pay 10 l. to the lessor c. And some in the Negative i. that consist of not doing as provided that the lessee shall not alien c. And some of them are in the Affirmative which imply a Negative as provided that if the rent be unpaid that the lessor shall reenter which implieth a Negative viz. not paid Conditions also are some of them collaterall i. when the act to be done is a collaterall act as that the party shall pay 10 l. goe to Rome or the like And some are inherent i. such as are annexed to the rent reserved out of the land whereof the estate is made And some of them also are Restrictive contain a restraint as that the lessee shall not alien or do wast or the like And some are compulsory as that the lessee shall pay â—o the lessor 10 l. such a day or his lease shall be void And some of them be single i. to doe one thing only And some copulative i. to doe divers things And some disjunctive i. when one thing of divers is required to be done And some conditions Co. super Lit. 201. make the estate whereunto they are annexed voidable only by entry or claime And some of them make the estate void ipso facto without entry or claime And sometimes they tend to destroy estates sometimes to make or to enlarge estates and sometimes neither to make nor destroy but only to clogge estates as where a lease is made rendring rent on a day on condition if it be not Lit. Sect. 327. paid that the lessor shall enter on the land and keep it till the rent be paid And all these waies conditions may be lawfully made Ineâ—â—e potest donationi modus conditio sive Causa The conditions in law or implied are either by Common law Co. 8. 44. 3. 65. Lit. 325. 378. F. N. B. 205. or by Statute law The first sort are some of them founded on skill as where an office is granted there is a condition tacite implied that if the grantee doth not execute it faithfully according to the trust the grantor may put him out And some are without skill as where an estate is made for life or years of land there is this condition implied that if the lessee doe wast he shall forfeit the place wasted or if the lessee make a feoffement of the land he shall forfeit his estate and the lessor shall enter And where an estate â—s made in fee of land this condition is implied that the feoffee shall not alien it in Mortmaine And these conditions doe somtimes give a recovery and no entry as in the case of wast And sometimes Co. 4. 121. they give an entry and no
recovery as in the case of Alienation in Mortmaine In the case of exchange also there is a condition in law for which see Exchange It is a generall rule That when a man hath a thing he may condition 21 H. 7. 24. Perk. Sect. 707 708. c. 3. What things may be made and done upon Condition And to what things a Condition may be annâ—xed Or not And how it may be made and annexed thereunto with it as he will Conditions in deed therefore may be annexed to things inheritable to frank tenements or to chattells reall and personall as for example If a feoffement in fee gift in taile or lease for life be made of lands or tenements or a grant be of a rent Common or the like thing in feesimple feetaile or for life these things may be done upon condition So a lease for years of land or a grant of a rent c. for years may be made upon condition And a lease may be made for five years on condition that if the lessee pay to the lessor within the first two years 10. markes that then he shall have the fee otherwise but for five years Also a Gardian in â—hivalry may grant the wardship of the body and land or either of them on condition A tenant by statute Marchant Perk. Sect. 281. Co. super Lit. 274. Perk. Sect. 724. Co. 8. 98. Dier 242. Staple or Elegit may grant their estates upon condition The Lord may grant his Seigniory to his tenant on condition The tenant for life may grant his estate to his lessor or him in reversion upon condition The King may make letters Patents of denization to an alien or a â—harter of pardon to a man for his life upon condition Also releases and confirmations may be made upon condition And a submission to an award may be upon a condition But an Institution to a Benefice or an induction may not be Co. 2. 74. on a condition An atturnement or an expresse Manumission of Co. super Lit. 274. a villaine cannot be upon a condition subsequent as it may be upon a condition precedent And a condition cannot be released upon a condition as some hold But the contrary is held by others cleerly and that there is no difference between this and a release of a right Ideo quere An award cannot be made on a condition as was held in Sherers case 35 Eliz. A contract or sale of a Chattell Perk. Sect. 712 713. personall as an oxe or the like may be upon condition as if A sell his horse to B that if A doe such an act then that B shall pay 5 l. at the day agreed upon otherwise but 4 li. So if I agree with a Physitian that if he cure such a disease he shall have so much and in this case he cannot have the money untill he have done the cure As where I promise a man 10 l. when he hath built such a house in this case he cannot have the money untill the house be built Also retaining of servants delivery of Charters and divers other things may be done upon condition And if an Executor assent Co. 4. 28. to a legacy upon a condition the assent is good but the condition is void And conditions annexed to estates in all the cases before Lit. Sect. 365. Co. super Lit. 161. 216. howsoever they are most frequently and safely made by deed in writing yet it seemes such conditions may be made and annexed to any estate of a thing grantable without deed without any writing Doct. Stâ— 16. Perk. Sect. 715. at all howsoever in some cases it cannot be well pleaded nor used without a deed for it is a rule That if a condition be pleaded in any action to deâ—eat a freehold the deed wherein the condition is contained must bee shewed But of chattels reall as leases for years and the like or grants of chattels personall a man may plead that such leases and grants were made upon condition without shewing the deed And in the first case also of a condition to avoid a freehold it may be given in evidence to a Jury and they may finde the matter at large as it is and so the party may have advantage of the condition without shewing any deed of it Also the Co. 5. 40. pleading of a feoffment in fee on condition without deed and re-entry is good if the party confesse the condition A condition may Co. 8. 90. be annexed to a limitation of uses and thereby the same may be made void See Vse The nature of an expresse condition annexed to an estate in generall Co. super Litt. 186. Perk. Sect. 818. Litt. Sect. 358. Dier 6. is this That it cannot be made by nor reserved to a stranger 4. The nature of a condition in deed and of a limitation but it must be made by and reserved to him that doth make the estate And it cannot bee granted over to another except it be to and with the land or thing unto which it is annexed and incident And so it is not grantable in all cases for the estates of both the parties are so suspended by the condition that neither of them alone can well make any estate or charge of or upon the land for the party that doth depart with the estate and hath nothing but a possibility to have the thing again upon the performance or breach of the condition cannot grant or charge the thing at all And Dier 298. Co. 8. 44. Perk. Sect. 818 819. if he that hath the estate grant or charge it it will be subject to the condition still for the condition doth always attend and waite upon the estate or thing whereunto it is annexed so that although the same doe passe through the hands of an hundred men yet is it subject to the condition still And albeit some of them be persons priviledged in divers cases as the King infants and women covert yet they also are bound by the condition And a man that comes to the thing by wrong as a disseisor of land whereof there is an estate upon condition in beeing shall hold the same subject to the condition also And when the condition is broken or performed Dier 117. Co. 10. in Mary Portingtons caâ—e Super Litt. 230. Litt. Sect. 374. Perk. Sect. 564. so 108. Litt. â—o 224. Dier 127. Co. super Litt. 224. c. the whole estate shall be deâ—eated So that if there be a lease for life made by deed and not by will the remainder over in fee on condition that the lessee for life shall pay ten pound to the lessor if the lessee pay not this ten pound the estate in remainder is avoided also Et sic è converso unlesse by speciall limitation it be otherwise provided as if A grant by â—ndenture land to B for life the remainder to C in fee rendring rent to A and his heires with condition that
the like it must be done at the time agreed upon and set down in the condition And in cases where it is to be done before a time certain it must be done before that time or else the condition is broken But in all cases where no time is set for the doing of the thing contained in the condition be it to pay money make an estate or the like if the act to be done bee to be done to the party that doth make the estate or be to be done to him and a stranger and be such a thing as is for the benefit of him that doth make the estate and for his benefit only there regularly the party that is to doe the thing shall have time to doe it during his life unlesse the party feoffor c. that doth make the first estate whereunto the condition is annexed doth hasten the doing thereof by request for if he request the doing thereof and set no time it must be done within a convenient time after that request and if he request and prefixe a time convenient when he doth desire to have it done it must be done at that time and in these cases the condition cannot be broken without a request so long as he to whom the estate upon condition is made be living And therefore To pay mony Testament in this case it is not like to a condition made by a Wil for if one devise his land to I S so as he pay the twenty pound to I D the Testator doth owe him and no time is set for the payment thereof in this case he must pay it as soon as it is demanded or he doth forfeit the land and the heir may enter But if the thing to be done be to be done to a stranger and be for the profit and benefit of a stranger only as if a feoffment be made on condition that the feoffee shall To mary I S. mary the daughter of the feoffor or on condition that the feoffee shall infeoffe a stranger and no time is set for the doing hereof in To infeoffe these cases the feoffee shall not have time during his life to doe it but he must do it in a reasonable time and that without any request at all or else he doth break the condition And in some speciall cases when the act to be done is to be done to the party himself the party shall not have time to doe it during his life as if one grant land To grant an Advowson or a rent to I S on condition that he shall grant an Advowson to the grantor for his life or on condition that he shall grant a rent charge to the grantor during his life to be paid at Michaelmas and our Lady day in these cases the grant of the Advowson must be before the Advowson fall and the grant of the rent must be before either of the days of payment come and that without request else the condition is broken And if the condition be that if I S do such an Perk. Sect. 9. 798. act that then the feoffee shall pay ten pound to the feoffor else To pay mony that the feoffor shall reenter and no time is set when the feoffee must pay this ten pound in this case it seems the payment must be as soon as the same act is done and that without any request at all And in case where the feoffee c. or a stranger be to doe an Co. super Litt. 209. act and he alone is to doe it and it doth nothing concern the feoffor c. as to goe to Rome or the like there the feoffee c. or stranger shall have time during his life to doe the thing and it cannot be hastned by request If lands be granted on condition that the grantee shall make a To make a lease Co. super Litt. 220 222. lease for life of other lands to the grantor the remainder to a stranger in this case the feoffee shall have all the time of his life to doe it if hee be not hastned by request But if the condition be to make a gift in taile to a stranger the remainder to the feoffor in this case it must be done in time convenient without request If the King licence his tenant to infeoffe A and B so as they give the land again to the feoffor and the heirs males of his body and he make a feoffment accordingly in this case it must bee reconveyed before the death of the feoffor or else the condition is broken If A infeoffe B of black acre on condition that if C infeoffe B Co. super Litt. 208. of white acre A shall reenter in this case C shall have time to do To infeoffe this during his life if B doe not hasten it by request If a lessee grant his estate to a stranger on condition that the To geâ— the good will of I S. Perk. Sect. 795. grantee doe get the good will of the lessor and no time is set when he shall get his good will it seems in this case he shall have time to get his good will during the terme and that although he deny it at the first yet if he grant it afterwards that this is sufficient When a time is set in certain for the payment of mony or the doing of any other thing generally neither agent nor patient are Litt. Sect. 342. Co. super Litt. 213. bound to aâ—â—end any other time And if the thing be to be done on a day certaine but no houre of the day is set down wherein the same shall be done in this case they must attend such a distance of time before the Sun set as may be convenient to doe that worke in And if the condition be to pay money at a place certain at any To pay money time during life in this case the money may not be tendred at any time in the place in the absence of him that should receive it but he that is to pay it must give notice to the other party before hand what time he will tender it that the other may be ready to receive it Or if at any time the parties hap to meet at the place a payment or tender then at that place is sufficient And the same law is for Obligation the most part in conditions of obligations In cases where a place is set down for the doing of the thing contained 3. In respect of place Co. super Litt. 210 211. 213. Litt. Sect. 343. 345. Bio Condition â—0 in the condition there it must always be done at that place unlesse by some agreement made between the parties afterwards another place be appointed otherwise the condition is not performed and the parties are not bound to attend in any other place But in cases where there is no place set down for the doing of the thing contained in the condition if the thing to
be done be a corporall service as to pay money or any such like thing the party that is to doe it must at his perill seek out the person to whom it is to be done if he be infra regnum Angliae but if he be not within the kingdome he is not bound to seek him and yet the condition is not broken And if the thing to be done be either locall i. such a thing as must be done in or at a place certain as the making of a feoffment of land payment of rent or the like in this case the To pay mony thing must be done at that very place and a tender of doing it in that place is a sufficient performance of the condition as for examples If a feoffment be made on condition that the feoffee shall pay to the feoffor twenty pound on Easter day at Dale and the feoffee tender the twenty pound the same day at Sale And albeit the feoffor be at Sale and he tender the twenty pound to his person there the same day yet this is no performance of the condition And if a feoffment be made in mortgage on condition for the payment of money at a day and no place is set for the payment thereof in this case the mortgagor must seek the mortgagee and tender it to his person at his perill and tender of the money upon the land mortgaged is not a sufficient performance of the condition And if a feoffment be made on condition that the feoffee shall infeoffe To infeoffe the feoffor of white acre in Dale in this case the feoffment or the tender of it must be in Dale and cannot be elsewhere and a tender of it there is sufficient to perform the condition So if the condition To acknowledge satisfaction be that the feoffee shall in Easter Terme next acknowledge satisfaction upon a Judgement in the Kings Bench this must be done there and cannot be done elsewhere So if a feoffment in fee bee made of white acre rendring rent to the feoffor and his heirs on condition that if the rent be not paid the feoffment to be void and no place is set for the payment of it in this case the feoffee is not To pay rent bound to tender his rent any where for the saving of the condition but upon the land and a tender there is sufficient And if a man make a feoffment in fee without any reservation of rent precedent in the deed on condition that the feoffee and his heirs shall render a yearly rent of twenty shillings a year to the feoffor and his heirs and if they fail that the feoffor shall reenter in this case also it seems the payment or tender must be upon the land But if the condition be that he shall â—ender twenty shillings a year to a stranger and his heirs this is no rent nor in the nature of a rent and therefore in this case the feoffee must tender it to the person of the stranger where he can find him at the day or else hee doth break the condition and tender upon the ground is not sufficient But in these cases if the nature of the thing to be done be such as will not admit of such a cariage from place to place to seek out the person of the feoffor c. there albeit the thing to be done be corporall or transient and not a locall thing yet that is to doe it shall not be bound to seek out the person of the other as for example If an estate be made on condition that the grantee shall To deliver wood or corn deliver twenty quarters of wheat or twenty load of wood to the grantor at such a time and no place is set for the doing thereof in this case the grantee is not bound to cary the same about to seek the feoffor or grantor as he is bound to cary money but before the day the grantee is to know of the grantor where he will appoint to receive it and there it must be tendred And the like law is for the most part in conditions of obligations It is best therefore in all these cases and herein he that is to be Obligation A Caveat the agent is to take care to have certainty of time and place set down in the condition for the doing of the thing that is to bee done and the more certain it is the better it is for him If a lease be made on condition that the lessee shall pay to the Per Just Bridgeman lessor all such sums of money as the lessor shall lay out in such a 4. In respect of other matters To pay mony businesse in this case the lessor must first tender to the lessee a note of the charges before the lessee is bound to pay and untill this be done the condition cannot bee broken And after a note is given also he shall have some reasonable time to provide the money And if he tender him a note of more then in truth he doth lay out the lessee if he know it may pay so much as is laid out and he may refuse to pay any more If lands be granted upon condition that A shall make an estate To make an estate Co. 5. 22. of lands at the charges of B in this case A must doe the first act viz. notifie to B what assurance he will make before B is bound to tender the charges If a feoffment be made on condition that the feoffee shall give so To deliver houshold stuffe or pay money Pasche 17. Jac. B. R. much houshold stuffe to the feoffor or so much mony for it as it shal be rated at by two indifferent persons to this end to be chosen it seems in this case the election of the two men must be by the feoffee but if the words be by two persons to be indifferently chosen then the election shall be by both parties for in the first case the word Indifferent doth goe to the praising not to the persons If a feoffement be made of a ground on condition that the feoffee To clense ditches 27 H. 8. 1. Plow Colthirsts case 21. shall â—ake the ditchâ—s in this case if the feoffee doe it once it is a sufficient performance of the condition And yet if a man grant a house for life on condition that the lessee shall dwell and be resident in the house during the said terme in this case it is not sufficient To dwell in the house that he dwell in it once during the terme but must doe so all the terme or else the condition is broken If an annuity be granted of tenne markes per Annum to a man on Perk. Sect. 804. condition or till he be promoted to a benefice by the grantor and it is not said of what value the benefice shall be in this case it shall be taken for a benefice of as great value and of as good an
stranger and he tender it and the stranger refuse it this is no good performance of the condition And if a feoffement be made on condition to reinfeoffe the feoffor and his wife in taile the remainder to W in fee and he tender it to the wife only and not to him in remainder this is no good performance of the condition And the same law for the most part is in conditions of obligations See more in Obligations at Numb 9. If a feoffement be made on condition that the feoffee shall not Co. super Lit. 222 Dier 45 46. 10. What act shall be a breach of a Condition in deed And when a condition in deed shall be said to be broken Or not infeoffe I S of the land and the feoffee doth make a feoffment to I S and I D this is a breach of the condition And so also it is if the feoffee make a feoffement to I D to the intent that he shall alien to I S. Quando aliquid prohibetur fieri directo prohibetur per obliquum And yet if the feoffee in the case before alien to I D and after he doth alien to I S this is no breach of the condition And if the condition be that the feoffee shall not infeoffe I S and he die Not to alien and his heire enfeoffe I S this is no breach of the condition If a lease for years be made on condition that the lessee shall not Dier 45. 65. assigne or alien the term or the land during his life without the licence of the lessor and the lessee doth give it by his will without licence this is a breach of the condition and forfeiture of the estate But if he make an executor of his will only this is no breach And if the condition be that the lessee shall not alien and he die and his executor alien this is no breach of the condition And if the condition Per 3. Justices B. R. 3 Jac. be that the lessee shall not alien but to his children and the lessee by will devise it to his executors it seemes this is a breach of the condition So if he devise that A his sonne shall have his term after his wife and doth make A his sonne his executor it seemes this is a breach of the condition But if he doe not make A his executor contra And in cases of devise albeit the executors doe not assent yet the condition is broken as in case where a reversion is granted on condition that the grantee shall not alien it and he doth alien it but no atturnement is to this grant yet it seemes this is a breach of the condition And if a lease for years be made on Dier 6. condition that the lessee or his assignes shall not alien and the lessee doth make his wife his Executrix and shee doth take another husband and he doth alien it it seemes this is a breach of the condition and a forfeiture of the estate But if a lease be made on condition that the lessee shall not alien without the licence of the lessor and after the lessor die and the lessee assigne or the lessee die and his executors or administrators assigne this is no breach of the condition in either of these cases So if a lease be made on condition that the lessee shall not alien the terme during his life and he makes an executor but doth not devise it to him this is no breach of the condition And if a lease be Dier 152. Co. 4. 120. made on condition that the lessee his executors or assignes shall not alien the terme to any persons without the licence of the lessor but to the wife or one of the children of the lessee and the lessee die and his executors alien to one of the children of the lessee and he alien to a stranger without licence this is no breach of the condition And if one make a lease of a house and Hil. 38. El. Marsh versus Curtis land on condition that the lessee shall not parcell out the land or any part of it from the house and the lessee doth grant all his terme in the house and part of the land and doth keepe the rest and after doth lease that part also this is a breach of the condition If a lease be made of a house on condition that the lessee shall Not to suffer a woman with child in the house Co. 8. 92. not suffer any woman great with child to harbour or lodge in the house six daies after notice given by the lessor and the lessee doe suffer any such person after notice given albeit the lessor consent to it yet the condition is broken But if the lessor doe nolens volens keep such a woman there against the mind of the lessee this is no breach of the condition If a lease be made on condition that if any wast be done Not to doe wast 12 H. 4 5. Bro. Condition 40. the lessor shall reenter in this case if the house fall by a tempest this is no breach of the condition for this is not wast but if it be uncovered by tempest and the tenant hath a convenient time to repair it and doth not but doth suffer the timber to perish for want of covering this is a breach of the condition and the lessor may enter and put out the lessee * Per. Dier and Walsh Justices Dier 281. And if a lease be made on condition that that lessee shall not doe wast and he suffer wast to be made in decay of the houses c. it seemes the condition is broken Sed quere If a lease be made on condition that if the lessee be minded Not to sell till the lessor refuse it to any other Dier 13. to sell his estate the lessor shall have the first offer thereof giving as much as another will give in this case if the lessee doth not give notice when he is minded to sell it he doth breake the condition but if when he is minded to sell he doth tell the lessor of his purpose and what he is offered for it and the lessor doth either say he will not have it or that he will not give so much for it or doth not accept it but doth delay c. and then the lessee doth sell it to another this is no breach of the condition neither is he bound to waite upon him in this case If a feoffement be made on condition that the feoffee shall Co. super Lit. 221 222. Co. 2. 58. Perk. Sect. 80. 803. Lit. Sect. 355. Co. super Lit. 206. make a feoffement in fee gift in taile lease for life or years To make an estate of the land to the feoffor or to a stranger by a day and before the day the feoffee doth disable himselfe to doe it either by making some estate of the same thing to some other person in taile
the Church in case of an Advowson and in the other cases upon the land But in case where a man cannot make an entry or claim there the law will not compell him to it And therefore if one grant land to another for five years on condition that if he pay to the grantor within the two first years forty marks that then he shall have the fee otherwise but for tearm of five years and livery of seisin is made accordingly and the grantee doth not pay this mony in this case after the two years are past the freehold shall be in the grantor without entry or claim for as this case is he cannot enter but he must out the lessee of his term So if I grant a rent charge out of my land upon condition when the condition is broken the rent is extinct and here needs no claim So if a man make a feossment of land to me in fee on condition that I shall pay him twenty pound such a day c. and before the day I let the land to him for yeares †Rent rendring rent and after the condition is broken in this case he may retain the land without entry or claime and the rent is extinct So if one covenant to stand seised to the use of himself for life or otherwise and then after to the use of others with a proviso of revocation c. and after he doth revoke it in this case all the estates are revested in him without entry or claim * 14. When a condition broken shal make the estate c. vold ab initio And when not And to what intents the lessor feoffor c. shall be adjudged by his reentry to be in of his first estate And to what intents not It is generally true that he that doth enter for a condition brâ—ken Co. 4. 120. Peâ—k Sect. 840. Plow 186. 482. 14 H. 8. 17. doth make the estate void ab initio that hee shall be in of his first estate in the same course and manner as it was when he departed with the possession and at the time of the making of the condition And hence it is that if there be any charge or incumbrance on the land as if lessee of land upon condition grant a rent charge out of the land or enter into a Statute or Recognisance and the conusee have the land in execution and this charge is after the condition is made in this case when the condition is broken and the party doth reenter hee shall by relation avoid the rent statute and recognisances and hold the land freed from them all And if an estate be to passe by way of increase upon condition or a lease is to be made upon a condition precedent when the condition is performed the party shall hold his estate free from all after charges and clogs And if a man enter for breach of a condition in Co. super Litt. 234. Perk. Sect. 843 844. Co. super Litt. 233. law hee shall avoid all charges and acts done after that thing is done which doth produce the forfeiture but he shall not avoid any thing done before that time for he must take the thing as hee findes it as if a house or land belong to an officer in respect of his office and he grant a rent out of it for his life and then he doth forfeit it in this case the rent shall continue And if lessee for life of land grant a rent out of it and then make a feoffment in fee of the land in this case the rent shall continue and the lessor cannot avoid But if lessee for life of land make a feoffment in fee of it and then grant a rent out of the land in this case the lessor shall avoid it And if a lessee grant a rent out of his land and then doe wast and the lessor recover the land he cannot avoid this rent but shall hold the land charged with it But if the lessee doe wast first and then he grant a rent charge to a stranger out of the land and after the lessor recover the place wasted in this case he shal hold the land discharged And if lessee for life make a lease for years and after enter upon the lessee for years and make a feoffment in fee this shall not avoid the lease for years And if a man make a lease for Câ—â—mpt Jur. 64 65. yeares rendring rent with clause of entry for non payment and the lessee doth make underleases of part of this land and after the rent is unpaid and the lessor doth enter in this case he shall have all the land and avoid all the under leases But if there be any covinous practise in the case the undertenants may have remedy Equity in Equity And if a lease be made for life the remainder in Co. 10. 41. taile on condition in this case if the condition be broken both the estates be avoided Et sic de similibus But this generall rule Co. super Litt. 202. Perk. Sect. 242. 842 843. doth faile in divers particulars as if a man bee seised of land in the right of his wife and he maketh a feoffment in fee by deed indented upon condition that the feoffee shall devise the land to the feoffor for life c. and the husband dieth and then the condition is broken in this case the heir of the husband shall enter and yet he shall not have the estate of the feoffor for this doth presently after his entry vanish away So if a tenant in speciall tail hath issue and his wife dieth and tenant in taile maketh a feoffment in fee upon condition the issue dieth the condition is broken and then the feoffor doth reenter in this case he shall have but an estate for life as tenant in tail after possibility of issue extinct So if a lessee for life or years make a feoffment in fee on condition and after doth enter for the condition broken in this case he shall not be in in the same course for now his estate is subject to entry for forfeiture though he be tenant for life still So if a disseisor be of certain land and he die seised thereof and his heir is in by descent and the disseisee enter upon the heir and infeoffe a stranger upon condition and the heir of the disseisor doth enter upon the feoffee and the disseisor doth sue a writ of entry sur disseisin against the heir of the disseisor and doth recover and hath execution and the feoffee on condition doth reenter and after the condition is broken in this case the feoffor is not in in the same case for now the disseisor cannot enter upon him as he might before And in some cases the feoffor by his reentry shall be in in his former estate but not in respect of some collaterall qualities as if tenant by homage Ancestrell make a feoffment of the land he doth so hold in fee
on condition and entreth for the condition broken in this case it shall never be held in homage Ancestrel again And so if a copyhold escheat be and the Lord make a feoffment in fee upon condition and entreth for the condition broken in this case the custome annexed to that land is gone So if there be Lord and tenant by fealty and rent and the Lord is in seisin of the rent and granteth his Seigniory to another and his heirs on condition and the tenant doth atturn and payeth his rent to the grantee the condition is broken the Lord distraineth for his rent and rescous is made in this case the former seisin shall not enable him to have an assise without new seisin If there be Lord and tenant and the Lord disseise the tenant of the tenancy and thereof doth enfeoffe a stranger on condition and after the condition is broken and the Lord enter and the tenant doth enter upon him in this case the Seigniory is not revived If tenant in tail make a feoffment in fee on condition and dieth and the issue in tail within age doth enter for the condition broken in this case he shall be in first as tenant in feesimple and heir to his father and then shall be presently remitted but if he be of full age he shall not be remitted If one make a feoffment of white acre and black acre on condition c. and that he shall enter into black acre onely in this case Co. super Litt. 202 203. upon breach of the condition he shall enter into that part onely If the words of a condition be That if such a thing be not done the feoffor or lessor shall enter into the land and take the profits thereof untill the thing be done or to the like effect in this case if the feoffor or lessor enter upon the breach of the condition hee doth not avoid the estate or get any thing by his entry but the possession onely in the nature of a pledge or a distresse untill the thing be done And if the condition be for the payment of the rent he shall hold the land untill he be paid the rent And if the words be That the feoffor c. shall enter and take the profits untill thereof he be satisfied or untill he be satisfied or paid the rent in the first case as soon as he is paid either by the receiving of the profits or payment of the rent behind or both together and in the last case as soon as he is paid the rent by the feoffee or lessee the feoffee or lessee may enter again into the land If a condition be possible in his creation and after become impossible Co. super Lit. 207. 219. 15 H. 7. 13. Dier 262. 15. When and by what meanes a condition shall be discharged and extinguished for ever or suspended for a time Or not 1. By the act of God Conditions impossible by the act of God the condition is discharged and gone for ever and the estate is absolute As if a feoffment be made to me on condition that I shall reinfeoffe the feoffor before a day or on condition that I shall appear at Westminster in the Kings Bench such a day or on condition that I shall goe to Paris about the affairs of the feoffor before such a day and before the day appointed it doth happen that I die in all these cases the condition is discharged So if the condition of a feoffment be that if the feoffor or his heirs pay ten pound to the feoffee such a day and before the day the feoffor dieth without heire in this case the condition is gone And if the condition become impossible in part onely then it is discharged for so much onely If there be Lord and tenant and the tenant doth enfeoffe a Perk. Sect. 819. stranger on condition and the feoffee die without heir so that the tenancy escheat in this case the condition doth continue and the Lord must hold it subject to the condition Albeit a condition cannot be divided by the act of the parties Co. super Litt. 215. Co. 4. 120. but it will be destroyed yet it may be divided by the act of law 2. By the Act of Law and therefore if a lease for years be made of two acres of land the one of the nature of Burrough English and the other at the Common Law on condition and the lessor having issue two sons dieth in this case albeit the condition be divided yet it is not gone but doth continue still and each of them may enter for the condition broken But if one that hath a condition knit unto his reversion grant part of his reversion to a stranger the condition is destroyed in all for it cannot be apportioned by the act of the parties as it may by the act of the law or the wrong of the lessee A condition may be destroyed in the very creation of it as if 3. By the Act of the parties Co. 2. 59. the Lord Cromwels case Dier 309. Co. super Litt. 265. 379. Co. 10. 41. one devise lands for life with expresse words of a condition and not words of limitation or words that may be so taken the remainder over to a stranger in this case the stranger cannot enter neither is the remainder good nor the condition effectuall Or it may be discharged by matter ex post facto as in the examples following If one make a feoffment in fee of land upon condition and after and before the condition broken he doth make an absolute feoffment or levy a fine of all or part of the land to the feoffee or any other by this the condition is gone and discharged for ever And yet if one grant a rent out of his land upon condition and after make a feoffment of this land this doth not extinguish the condition And if a fine in this case be levied in pursuance of a former agreement as if one by Indenture bargain and sell his land to another and in the Indenture there is a covenant that all other assurances shall be to the use of the bargainee according to the first agreement and the bargaine and sale hath a condition annexed that the bargainee shall make a feoffment of part of the land to the bargainor after the bargainor doth levy a fine to the bargainee in corroboration of the first bargain in this case the condition is not extinct but saved by the original agreement And if one make a feoffment in fee of land upon condition after before the condition broken he doth make a lease for years onely of the land or part of it to the feoffee or any other by this the condition is suspended for that time And if the feoffor after a feoffment made of land upon Co. 2. 59. Perk. Sect. 819 820. 163. Litt. Bro. Sect. 212. Co. super Litt. 219. condition enter upon all or part of the land
and be impleaded and lose it by this the condition is gone for ever And if he enter and hold the possession onely by this the condition is suspended during his possession and if he hold the possession so long that the feoffee cannot perform the condition the condition is discharged for ever And if one make a feoffment of land upon condition and after and before the condition broken the feoffee doth Co. 7. 14. 4. 52. Litt. Bro. Sect. 212. 85 Co. super Litt. 218. make a feoffment of all or part of the land to the feoffor by this the condition is gone for ever And if the feoffee make a lease for life or yeares onely of part of the land by this the condition is suspended for that time But if the feoffee make a feoffment in fee lease for life or years to a stranger this is no extinguishment nor suspension of the condition And if the condition be to pay mony or doe any such collaterall thing if in this case the feoffee make a lease to the feoffor this doth not suspend the condition If the feoffor or lessor release to the feoffee or lessee all conditions Release Perk. Sect. 823. Co. 1. 147. See Release and confirmatiō or all demands in the land or confirm the estate of the feoffee without condition c. by either of these means the condition is destroyed and gone for ever If one make a lease for life or years of land on condition and after grant the reversion of part of this land hereby the condition Co. 2. 59. Perk. Sect. 163. Co. 4. 119. is destroyed for ever And if he make a lease of part of it onely by this the condition is suspended A condition may be extinct or suspended by the intermariage Perk. Sect. 763. 765. 764. of the parties to the condition as if a feoffment bee made by a woman on condition to pay ten pound or on condition to infeoffe her by a day certain and before the day they two do intermary and the mariage doth continue untill after the day in this case the condition is gone And if the condition be to reenter for not payment of rent the condition shall be suspended and no rent be paid during the coverture If a lease be made for years on condition that the lessee or his Co. 4. 119. 5. 34. 2. 59. 714. Dier 309. assignes shall not alien without the licence of the lessor and the lessor licence the lessee alone to alien or licence him to alien a part of the land or licence him to alien all the land for a time or if the lease be to three on such a condition and the lessor licence one of them to alien in al these cases the condition is gone for ever If one had enfeoffed me on condition that I should pay him Perk. Sect. 766. tenne pound at Easter and before the time he had entred into Religion and made me his executor and had not been deraigned in this case the condition had been gone for ever If I be seised of land in fee and take a wife and during the mariage Perk. Sect. 822. enfeoffe a stranger on condition and die and the feoffee endow my wife of her third part in this case the condition is not destroied and yet the third part is freed from the condition but the reversion of that third part is not freed from the condition And if shee grant her estate againe to the feoffee the condition is revived So if there be Lord and tenant and the tenant make a feoffement in fee upon condition and the feoffee is attainted of felony c. so that the tenancy doth escheate in this case the condition is not gone but the tenancy is charged with it If a feoffement or lease be made rendring rent on condition Co. 3. 64. super Lit. 211. for not payment a reentry and the feoffor or lessor after the breach of the condition doth distraine or bring an assise for the Rent or doth accept the rent at another day hereby the condition is not destroied but it is discharged for that time so that the feoffor or lessor cannot take any advantage of that breach and if the act to be done by the condition be a collaterall act as not to alien or the like and the condition is broken and the feoffor not having notice thereof doth accept the rent in this case also and by this meanes the condition is not discharged If one disseise the feoffee or the heir of the disseisor or any other that hath lands by a just title and thereof enfeoffee a stranger on 4. by the Act of a stranger Lit. Sect. 476 477. Co. super Lit. 277. condition and the land is lawfully recovered from him by him that hath the title hereby the condition is destroied for ever And if a dis seisor make a feoffement in fee on condition and after the disseisee doth enter upon the feoffee on condition this doth extinguish the condition But if the disseisee release to the feoffee on condition this Release release doth not discharge the condition But if a disseisor make a lease for life the lessee for life make a feoffment in fee on condition the disseisee release to the feoffee of the tenant for life by this the condition in law is destroied And if the feoffee upon condition Perk. Sect. 823. 821. make a feoffement over without condition the disseisee release to the second feoffee by this the condition is destroied be the release before the condition broken or after And if feoffee on condition make a lease for life and the feoffor release to the feoffee on condition or lessee for life all conditions or all demands to the land by this the condition is discharged And if the feoffee on condition make a feoffement to another on condition and after the first feoffor doth enter for breach of the condition hereby the second feoffement and the condition also is gone for ever If a man seised of land in fee let it to a stranger for years and Perk. Sect. 820. one that hath no right doth out the lessee and thereof die seised and his heire is in by descent and he doth make a feoffement to a stranger upon condition upon whom the lessee for years doth enter within the terme claiming his terme in this case the lessee shall hold the land discharged of the condition And now we passe to a Covenant being another part of a Deed. CHAP. VII Of a Covenant A Covenant is the agreement or consent of two or more by Termes of the law Plow 308. 1. Covenant Quid. Deed in writing sealed and delivered whereby either or one of the parties doth promise to other that something is done already or shall be done afterwards And he that makes the covenant is called the covenantor and he to whom it is made the covenantee Covenantor Covenantee
2. Quotuplex And this is either expresse or in deed i. when the covenant is Termes of the law tit Covenant Co. 4. 80. 5. 17. F. N. B. 145. 146. Dier 338. 257. expressed in the deed As when A by deed doth covenant with B to serve him for a year and B doth covenant with A to pay him tenne pound for this service Or it is implied or in law i. when the deed doth not expresse it but the law doth make and supply it As when one doth make a lease for years by the words demise or grant without any expresse covenant for quiet enjoying in this case the law doth intend and make such a covenant on the part of the lessor which is that the lessee shall quietly hold and enjoy the thing demised against all persons at least having title under the lessor and at least during the lessors life and as some thinke during the whole terme And hereupon an action of covenant may be brought against him in the reversion so that if the heire that is in by descent put out the termor of his father the termor may have this action against him A covenant is also either reall i. that whereby a man doth bind himself to passe a reall thing as lands or tenements as a covenant to levy a fine of land in which case the land it self is to be recovered or when it doth run in the realty so with the land that he that hath the one hath or is subject to the other and so a warranty is called a reall covenant Or it is personall i. when it doth runne in the personalty and not with the land but some person in particular shall have benefit by it or be charged with it as when a man doth covenant to doe any personall thing as build or repair a house serve him or the like And these also are some of them said to be inherent i. such as are conversant about the land as that the thing demised shall be quietly enjoyed shall be kept in reparations shall not be aliened or if it be to be sold that the lessor shall have the first refusall to pay rent not to cut downe timber trees or doe wast to fence the copices when they be new cut to make further assurance or the like And some of them are said to be collaterall i. that are conversant about some collateral thing that doth nothing at all or not so immediatly concern the thing granted as to pay a summe of money in grosse to build a house in another mans ground to make a feoffment or lease of other land to give other security to perform the covenants or to pay the rent or that the lessor shall distrain for the rent in some other land then that which is demised or the like these are collaterall covenants There is also a covenant to stand seised of land to uses which is now become a kind of conveyance of land for which read Vses at large The most frequent use of a covenant is to binde a man to doe 3. The use and operation of it Co. 1. 154. Litt. Bro. Sect. 309. 17 H. 8. 16. Plow 308. F. N. B. 145. something in futuro and therefore it is for the most part executory and if the covenantor doe not perform it the covenantee may have thereupon for his relief an action or writ of covenant against the covenantor so often as there is any breach of the covenant And this writ of covenant is therefore defined to bee a A writ or action of covenant Quid. writ lying where a man is bound by a covenant in a deed and hath broken it And in this case commonly the party damnified shall recover damages only for the breach and if hee have a Judgement in an action brought for one breach and after the covenantor doth breake the covenant again in this case hee may bring a new action and so for every breach But a covenant doth somtimes Use also make a transmutation of a property and possession of things as in case of a covenant to stand seised of land to uses for which see Vse And in case where one doth covenant that another shall Lease have a peece of land for five years this is a good lease for five years for which see Lease And in case where one doth covenant with another that if he pay him ten pound such a day he shall have all his cattle in Dale or his lease for years hee hath of the Manor of Contract Dale in this case it seems if he pay the mony at the time hee shall have the property of the goods and of the lease for years It is said therefore that in some cases upon the writ of covenant the party shall recover the land it self out of which he hath been ejected A covenant may be in the affirmative or in the negative And it Plow 330. 27 H. 8. 16. 4. What shall bee said a good covenant in deed upon which an Action of covenant may be had And what not 1. In respect of the manner of making it may be executed i. that a thing is done already or executory i. that a thing shall be done hereafter and these are all good But if it be of a thing present as if I covenant that my horse is yours this is void a F. N. B. 145 G. Co. 3. 63. Ewers case 8 Jac. And these covenants being made by a deed poll are as good and effectuall as when they are made by a deed indented so as the party have the deed to shew for otherwise a common person cannot have an action of covenant for it doth not lie upon a verball agreement neither can it be grounded without a writing except it be by a speciall custome as in London b Litt. Bro. Sect. 450. Co. 2. Lord Cromwels case Dier 57. 150. 21 H. 7. 37. 40 E. 3. 5. And there needs not in this case formall and orderly words as Covenant Promise and the like to make a covenant on which to ground an action of covenant for a covenant may be had by any other words upon any part of an agreement in writing in what words soever it be set down for any thing to be or not to be done the party to or with whom the promise or agreement is made may have this action upon the breach of the agreement And therefore if these words be inserted in a deed amongst other covenants That the lessee shall repair provided always that the lessor shall allow timber Or that the lessor shall skowre ditches provided always that the lessor doe cary away the earth these are good covenants on both sides c Adjudge pasch 14 Jac. B. R. Sir Thomas Bret versus Cumberlands case And if a lease be made of houses by Patent to I S for twenty one years and therein is inserted this clause And that the said I S and his assignes shall repaire the houses when
yet it seems it doth not restrain the power that the lessee hath by the law to take these things without assignement But if the lessee doe covenant that he will not cut any timber or fuell without the leave or without the assignement of the lessor this is a good covenant and doth restrain him for in this and such like cases the rules is Modus conventio vincunt legem If an obligee covenant with the obligor that he will not sue him Mich. 36 37 Eliz. Co. B. Adjudge Deaux versus Jefferies 21 H. 7. 23. Release upon the obligation untill Easter following this is a good covenant but no release or suspension of the debt * Perk. Sect. 69. If there be Lord and tenant of three acres of land white acre and two others and the Lord grant to the tenant by deed that he will not distrain in white acre for his rent or services this is a good covenant but doth not determine the Seigniory If one man grant a mill within his Manor covenant for him Fitz. Covenant 5. his heirs that there shall be no other mill set up within the Manor it seems this is a good covenant If one make a lease wherein are divers covenants to bee performed Fitz. Covenant 3. on the part of the lessee and after the lessee doth covenant that if any of the covenants be broken that the lessor shall enter upon the land demised and hold it untill the lessee make him amends for the damage done by the breach of the covenant it seems this is a good covenant and that the lessor may take advantage thereof accordingly If a man seised of land in fee covenant to stand seised of it to uses Plow 307 308. 21 H. 7. 18. 27 H. 8. 16. Finchesley 49. and no estate doth rise by the covenant yet this may bee good by way of covenant and give remedy to the covenantee in an action of covenant But with this difference If the covenant be future as where one doth covenant with another that in consideration of a mariage his lands shall descend remain or revert to his sonne and heire apparent and to the heires of his body on the body of his wife in this case the covenantee may have a writ of Covenant upon the covenant For if a covenant be present as that a man and his heirs shall from henceforth stand and bee seised to such and such uses and the uses will not arise by the Law in the case in this case no action of covenant will lie upon this covenant for this action will never lie upon any covenant but upon such a covenant as is either to doe a thing hereafter or that a thing is or hath heretofore beene done and not when it is for a thing present as when A doth covenant with B that his blacke horse shall be for ever after the horse of B this is no good covenant to give the horse to B or to give him an action of covenant for him but A may keep him still notwithstanding If one mortgage upon condition to reenter upon payment of an Agree 8. Car. hundred pound at a day and the mortgagee doth covenant that he will not take the profits of the land untill default of payment this is a good covenant and the mortgagee therefore may not meddle with the profits untill the day of payment come If one make a lease for years of land by the words Demise or 5. What shall be said a good covenant in Law upon which an action of covenant may be had And what not Co. 4. 80. 5. 17. Trin. 3 Jac. B. R. Stiles case Pas 7 Jac. B. R. Winsecombes case Grant and there is not contained in the lease any expresse covenant for the quiet enjoying of the land in this case the Law doth supply a covenant for the quiet enjoying of it against the lessor and all that come in under him by title during the Term and upon this the lessee his executors administrators or assignes may have an action of covenant if he be disturbed But where there is an expresse covenant in the deed for the quiet enjoying of the land there the Law will not make this implied covenant Expressum facit cessare tacitum And therefore herein this is not like to the case Warranty where a man doth make a lease for life by the words of Dedi concessi or make a lease for life by other words reserving rent in which cases the law doth create a warranty against all men during the life of the lessor for if in these cases there be an expresse warranty in the deed yet this doth not take away nor qualifie the implied warranty but the Lessee may make use of which of them hee will if he bee ousted or evicted by one that hath an elder title A covenat in particular being one part of a deed is subject Plow 287. See in Exposition of Deeds before in toto 6. How a covenant in deed or law shall be taken and expounded And how it shall be performed to the generall rules of exposition of all parts of deeds in generall as to bee alwayes taken most strongly against the covenantor and most in advantage of the covenantee 2. To be taken according to the intent of the parties 3. Vt res magis valeat c. 4. When no time is limited for the doing of the thing it shall bee done in reasonable time and the like In cases where the covenantees have or are to have several interests Ioint and severall or estates there when the covenant is made to and with the Co. 5. 19. Dier 338. Bro. Covenant 49. covenantees cum quolibet eorum aut alterâ— eorum in this case these words make the covenant severall as if one by Indenture demise black acre to A and white acre to B and green acre to C and covenant with them and either of them or covenant with them and every of them that he is lawfull owner of all these acres in this case the covenant is severall but if he demise to them the three acres together and covenant in this manner the covenant is joint and not severall And if A and B doe covenant jointly and severally in this case the covenant may bee joint or severall and the covenantors may be sued either the one way or the other at the election of the covenantee If one make a lease of land to another and covenant that hee F. N. B. 145. 1. Dier 328. 26 H. 8. 3. For quiet enjoying shall quietly enjoy it without the let of any person whatsoever or without the let of any person whatsoever claiming by or under the lessor in both these cases the covenant shall be taken to extend Mich. 7 Jac. B. R. accord in Gambles case to such persons as have title or claime some estate under the lessor for if in the first case any person
that hath no title and in the second case any person that shall claim under another and hath title or that shall claim under the lessor claim or enter or otherwise disturbe the lessee this is held to bee no breach of the covenant Sed quere of the first case for herein some conceive a difference Co. 4. 80. Dier 328. Per Furner at Lent Assise Glouc. 23 Car. betweene a covenant in deed and a covenant in law and that howsoever the covenant in law is extended only to evictions by title yet that the covenant in deed shall be extended further And therefore that if A make a lease for years to B and doth covenant that B shall quietly enjoy it during the term without the interruption of any person or persons that if a stranger in this case that hath no right doth interrupt B that he may have an action of covenant as when such a promise is by word an action of the case will lie upon it And if the lessor covenant with his lessee that he hath not done Curia Jervis versus Peade Mich. 40. 41 El. B. R. Action of the case any act to prejudice the lease but that the lessee shall enjoy it against all persons in this case these words against all persons shall refer to the first and be limited and restrained to any acts done by him and no breach shall be allowed but in such an act Co. 5. 17. 22 H. 6. 52. Co. 4. 80. Dier 257. The covenant in law upon the words Demise or Grant also for the quiet enjoying of the thing demised is generall against all persons that have title during the Terme and extendeth to the heir after the death of the lessor as against himself onely and shall charge the Executors or Administrators for any disturbance in the Executors life of the covenantor but not for any disturbance afterwards he that doth sue therefore upon this covenant must shew that he was molested or evicted by one that had an elder title If one doth covenant to enter into bond for the quiet enjoying of Co. 5. 78. land and doth not say what bond in this case it shall be taken to be a bond of so much as the land to be enjoyed is worth A warranty in a lease for years shall be taken for a covenant for Fitz. Covenant 21. â—ee before 7 E. 4. 6. Bro. Grant 164. quiet enjoying If one covenant with another to acquit him of all charges issuing out of the land and after by Parliament the tenth part of the To free from incumbrances and charges value not of the issues of all lands are given to the King in this case it seems the covenant shall not extend to this But if the Parliament had given the tenth part exituuÌ„ terre the covenant would have extended to this as well as to rents commons and such like things wherewith the land is charged If A covenant with B to make such assurance or such further assurance Co. 5. 19. of land as the Counsel learned in the law of B shall advise To make assurances of land in this case albeit B be learned in the law himself yet he may not devise this assurance but some other learned in the law must advise otherwise A is not bound to make it And if A covenant with B to make such assurance of land by Co. 5. 19 20. Dier 361. per Just Bridgeman a day as B or his heirs shall devise in this case B or his heires must first devise the assurance before A is bound to doe any thing And therefore if one sell land for money and the vendee doth covenant to make back to the vendor and his heirs such assurance of the land as the Counsell of the vendor shall devise within one yeare provided that if the vendee make default in the assurance then if he doe not pay twenty pound to the vendor that then the vendee shall stand seised to the use of him and his heires and the vendor tender no assurance the twenty pound is not paid in this case the land is in the vendee freed from the covenant And therefore in these and such like cases where a man is to make such assurance as A or his heirs or their Counsel shall devise A or his heirs must take care that in time they have an assurance reasonably drawn and ready to be sealed and to tender it to him that is to seale it for untill then there can be no breach of covenant But if A bee bound to make a feoffement lease or other assurance of land to B by a day in this case B need not to demand it or tender the assurance for A at his perill must doe it otherwise he doth breake his covenant a Trin. 20 Jac. B. R. Steed versus Spike And yet if in this case B doe get the assurance drawn and tender it to A it seemes A is bound to seale it or otherwise hee doth breake his covenant * Co. 5. 20. 22. And if the case bee so that A is bound to make such assurance to B by a day at the costs of B in this case A must doe the first act viz. notifie to B what manner of assurance he will make that he may know what money to tender and when the money is tendred A must see that hee doe make the assurance accordingly at his perill and if he fail in either of these the covenant is broken If A be bound to make such assurance to B as by the Counsell Co. 5. 20. learned of B upon request made shall be devised in this case it is sufficient if the advise be given to B and that he do make it known to A and it is not needfull it be given to A immediately And if Dier 338. Co. 2. 3. A covenant with B to make such assurance to B as I S shall devise and I S doth devise a reasonable deed of bargain and sale and hee tender it to A to seal in this case A is bound to seal it presently and he shall not have time to advise with his Counsell upon the deed but if he be illiterate and cannot read the deed he may refuse and delay to seal it untill he can get some body to reade it which he must doe as soon as he can And if one bee bound by Experientia covenant to make an assurance upon request the covenantee must request and tender an assurance also and he must tender such a one also as is reasonable otherwise the covenant will not bee broken by the refusull or neglect to doe it as if one be bound to make a feoffment to A upon request in this case A must get a naked deed of feoffment drawn without warranty or covenants and tender it And if the covenant be to make such a lease as the former in this case the second lease must not differ from the former
bargaine and sell land by deed indented to B and before the That the covenant or is seised of a good estate c. deed is inrolled I grant the same land to C and covenant that I am seised of a good estate of it in fee and after the deed is inrolled in this case the covenant is broken If A let land to B and covenant that he shall quietly enjoy it Mich. 8 Jac. Lams case Dier 328. F. N. B. 145. 26 H. 8. 3. Hil. 39 Eliz. B. R. Cornes case Fitz. Covenant 26. Bro. Covenant 40. without the let of any person whatsoever and A himselfe or any For quiet enjoying other person that hath any title to the land by or under him as if he make a lease of it or granta rent out of it to another or any other person that hath any title to the land albeit it be not by or under A as if A were a disseisor and the disseisee doe enter or disturbe B in all these cases the covenant is broken And so also is the law deemed to be by some in case of covenant in deed for quiet enjoying where a stranger or one that hath no title to the land doth enter or disturbe B. But otherwise it is in case of covenant in law for quiet enjoying for in this case if a stranger that hath no title to the land doth enter or disturbe the lessee this is no breach of the covenant in law And in all cases where any person hath title the covenant is not broken untill some entry or other actuall disturbance be made by him upon his title If a man make a lease of land and after make a feoffement of 20 Jac. Bro. Covenant 7. the same land and the feoffee doth disturbe the lessee in this case it hath been said this is a breach of the covenant for quiet enjoying Sed quere If a man purchase land to him and his wife and his heires in fee Hil. 20 Jac. adjudg B. R. Butler versus Lady Swinerton and then make a lease for years of it to I S and covenant for him his executors and assignes that the lessee his executors and assignes shall quietly hold and enjoy the premisses without the let of the lessor his heires or assignes or any other person by or through his or their meanes title or procurement and after the lessor doth die and his wife doth enter and disturbe in this case and by this meanes the covenant is broken And so it is also if A purchase Swans case M. 7 8 El. land of B. To have and to hold to A for life the remainder to C the sonne of A in taile and after A doth make a lease of this land to D for years and doth covenant for the quiet enjoying as in the last case and then he dieth and then C doth out the lessee in this case this was held to be no breach of the covenant So likewise if A be seised of white acre in fee and take to wife B and Dier 42. 26 H. 8. 3. Fitz. Covenant 6. 26. then make a lease of it to C with such a covenant as before for the quiet enjoying and then A doth die and after B doth recover dower by this the covenant is broken and yet if the mother of A recover dower and out the lessee contra So also if a tenant in taile doth make a lease with such a covenant and his issue doth disturbe the lessee this is no breach of the covenant And yet if the lessor be the cause of the gift in taile or procure the disturbance this may be a breach of the covenant And so also it is where a man is seised of land in fee and he doth make a lease with such a covenant and afterwards he doth die and then his heire is in ward by reason of a tenure and hereby the lessee is disturbed it seemes this is no breach of this covenant If one covenant that the wife he is about to mary shall quietly Curia B. R. pase 6. Car. Crowles case enjoy all her goods and that the covenantee shall take it into his possession and the husband doth only take the goods and keepe them in his possession this is no breach of the covenant If a covenant be for the quiet enjoying against all persons but Adjudge Hil. 38 El. Woodroffe versus Greenwood Adjudge Mich 2. Car. B. R. SaÌ„ders case Dier 240. the King and his successors and the Patentee of the King doe disturbe this is a breach of this covenant If two make a lease and covenant that the lessee shall enjoy the land without the let of them or any other and one of them alone doth disturbe the lessee this is a breach of the covenant If a lessee grant and assigne all the land contained in his lease to A and doth covenant with him that he hath not done any act or thing by which the grant or assignment might be impaired but that the assignee his executors c. may enjoy it against all persons and before this time the wife of the lessor had recovered and had execution of a third part of this land for her dower in this case this is no breach of the covenant for the words but that c. doe referre to the former and are not absolute If A grant the Bailiwicke of W to B for life and B assigne it Adjudge Rich versus Row pasch â—3 Jac. Co. B. to C for three years and after to D and C doth covenant with D that he will not doe or suffer to be done any act during the said three years by which the grant made by A may be forfeit but that after the three years ended he may enjoy it in as ample manner as C did or might have done without any act by C and after the three years ended C doth execute a Proces there and thereby incroch upon the office this is no breach of the covenant If A grant land to B and his heires rendring tenne pound rent Curia Hil. 20 Jac. Co. B. Greenway Truckfalds case To free from charges and incumbrances and B doth sell the land to C and his heires and doth covenant with C that from such a day he shall enjoy it discharged of all incumbrances and before that day a Common Recovery is had against C in which A is vouched and this is to the use of C and his heires supposing hereby the rent had been gone which is not so in this case the covenant is broken for this rent is an incumbrance If a lease be made of land for years the lessee devise it to his Co. 10. 52. wife durante viduitate and after to his sonne and he in reversion doth sell the fee to the woman during the widowhood and doth covenant that the land is discharged of all former sales rights titles charges in this case the covenant is broken at the first by
reason of the possibility of the sonne If A grant white acre to B and covenant that B shall enjoy it 9 Eliz. Co. B. against all incumbrances and C doth disturbe him in the taking of common there and this is a common which is against common right and which he hath by prescription in this case it seemes this is a breach of the covenant But if it be of a common that is of common right contra If A covenant with B before Easter to make him a good sure Dier 139. To make estates and assurances estate of land discharged of all former bargaines leases and incumbrances whatsoever leases or grants for life or years reserving the ancient rent during the terme only excepted and A after this and before the estate made doth make a grant of all or part of the land reserving the old rent it seemes this is no breach of the covenant If one make a lease to I S for years and covenant with him that Co. 5. 21. upon the Surrender of that lease he will make him a new lease and the lessor before I S can make any Surrender doth sell away the reversion or make a lease to another of the land and so disable himselfe this is ipso facto a breach of the covenant without any Surrender made by the lessee which in this case is not needfull For Lex neminem cogit ad vana in utilia peragenda So if one be seised of land in fee and covenant to make a feoffement of it to I S by a day upon request and the Covenantor before the day doth make a feoffement of it to another and then doth die before any request made to him in this case the covenant is broken If A covenant with B to make such assurance as B or as the Counsell learned of B shall devise and B tender such an assurance to Dier 338. Co. 2. 3. A to seale and A doth refuse or delay to seale it this is a breach of the covenant If A doth covenant with B C D and E to make them a feoffement Bro. Covenant 3. such a day and they come to the land at the time to take it and A doth not make the feoffement by this the covenant is broken And so also if B and C only or one of them doth come to the land for it may be made to any of them in the name of the rest But if none of them come to the land albeit the feoffor never come there it seemes the covenant is not broken If A covenant with B before Easter next to assure his house Curia B. R. to him and K his wife during the life of I S and A surrender his house to the use of B and such as K shall name at the request of B in this case the covenant is broken for this is no performance of it If one covenant to repaire sustaine and amend a house and the To repaire Dier 324. house is burnt by the negligence of the covenantor and not repaired againe this is a breach of this covenant And if the lessee covenant for him and his executors to repaire at his owne costs the principall timber not hurt or in decay for lacke of reparations or otherwise in default of the lessee or his executors only except and he die and afterwards the house is burnt in default of the executors in this case the covenant is broken and the executors may be charged If one covenant to leave a wood in the same plight he findes it Fitz. Covenant 29. Co. 5. 15. F. N. B. 145. Co. 1. 98. Perk. Sect. 738. Dier 33. Plow 29. 40 E. 3. 5. and he cut downe trees in this case the covenant is broken presently for it is now become impossible to be performed by his owne act But if in this case some of the trees be blowed downe with the wind or the like by this the covenant is not broken for it is now become impossible to be done by the act of God and in this case the covenantor is not bound to supply it And so likewise of a covenant to repaire houses or if one covenant to sustaine houses or Sea banks or covenant to leave them in as good case as one doth find them and the houses be burnt or throwne down by tempest or the like or the banks be overthrown by a suddaine sâ—ood or the like accident in this case the covenant is not broken by this accident only but if the covenantor doe not repaire and make up these things again in time convenient the covenant will be broken And if houses be let to me for years and I covenant to leave them in as good plight as I finde them and I throw down the houses this is no breach of the covenant for I may reedifie them and therefore no action will lie upon this covenant untill the end of the terme If one covenant to repaire a house before a day and it happen Hil. 8 Jac. Curia the plague is in the honse before and untill the day and thereby it is not done in this case the covenant is not broken for this will excuse but then it must be done in convenient time afterwards for otherwise the covenant will be broken If a lessee covenant to doe all the reparations of a house demised Dier 198. at his own costs and charges he cut trees upon some of the ground demised to amend the house it seemes this is a breach of his covenant If one covenant to pay money at five severall daies and he faile Co. super Lit. 292. To pay money of payment the first day by this the covenant is broken If one take land sowed or a stocke of cattell in lease for years 40 E. 3. 5. To leave a stock c. and the lessee covenant to leave it in as good plight as he doth take it in this case he must leave it sowed againe and if any of the cattell die he must make up the number otherwise he doth breake his covenant If a Corporation doe covenant not to take Toll and their Common Not to take toll officer appointed for that purpose doth take it this is a 43 E. 3. 17. breach of the covenant If A covenant with B to build a house by a day and B doth 18 E. 4. 8. Kelw. 34. Trin. 36 El. B. R. Carrell versus Reade To build a house forbid him and thereupon he doth forbeare to doe it and doth it not in this case the covenant is broken for this will not excuse him But if he doe by any actuall impediment hinder him or be the cause why the thing is not done then the not doing of it is no breach of the covenant And therefore if a lessee covenant to clense one of the ditches in the land demised and the lessor enter upon To clenâ—e a ditch the land it selfe and keepe out the
80. Dier 257. Fitz. covenant 30. Grant and the lessee assigne this over to I D in this case I D may take advantage of the covenant in law and bring an action against the lessor if he be disturbed If a lease for years be made of land the lessor doth covenant Co. 3. 63. F. N. B. 145. with the lessee and his assignes to doe or not to doe something in this case an assignee by word or an assignee by deed may take advantage of this covenant If two coparcenours make Partition of land and the one of them Co. super Lit. 385. Co. 5. 23. 18. doth covenant with the other to acquite her and her heires of a suit that issued out of the land and the covenantee doth alien her part to a stranger in this case the alienee shall have the same advantage for acquitall of the land as the covenantee had So if A be seised of the Manor of B whereof a chappell is parcell and a Prior with the consent of his covent had covenanted with A and his heires Lords of the Manor to celebrate divine service in the chappell and after A had sold the Manor in this case the vendee or assignee of the Manor should have had the same advantage of the covenant the vendor had But if the Lord had sold the chappell the assignee of the chappell should not taken advantage of the covenant And if a covenant be to say divine service in the chappell of a stranger in this case the assignee of the Manor in which the chappell is shall not take advantage of the covenant Regularly all those that doe seale and deliver the deed and are 9. Who shall be bound and charged by a covenant And against whom a writ of covenant doth lie And where Or not Co. 5. 16. 17 18. named and bound by the expresse words of the covenant whether the covenant be collaterall or inherent are bound by the covenant contained in the deed And therefore if heires executors administrators or assignes be named in the covenant for the most part they are bound by the covenant And in all cases of inherent covenants also where a man doth covenant for himselfe only and doth not name his executors and administrators or either of them they are bound and may be charged by the covenant notwithstanding Executors Administrators And in some cases the law is so also for collaterall covenants And in most cases of inherent covenants that tend to the support of the thing granted in respect of which it is presumed the lessor tooke the lesse for the land such as have the land albeit they be neither executors nor administrators or either of them but assignees c. shall be charged by the covenant though they be not named for these covenants are said to run with the land If a feoffement or lease be made to two or to a man and his Co. super Lit. 231. Dier 13. Bro. covenant 6. Det. 80. wife and there are divers covenants in the deed to be performed on the part of the feoffees or lesses and one of them doth not seale or the wife doth or doth not seale during the coverture and he or she that doth not seale doth notwithstanding accept of the estate and occupy the lands conveyed or demised in these cases as touching all inherent covenants as for payment of rent and the accessaries thereof as clauses of distresse of reentry of nomine poene reparations and the like they are bound by these covenants as much as if they doe seale the deed So if a lease be made to A for years or life the remainder to I S in fee and there is a rent reserved or there be divers covenants on the part of the grantees and I S doth never seale the deed or counter part yet if in this case he accept the estate after the death of A he must pay the rent and performe all the covenants that are inherent So also if there be covenants in the Kings Patent to be performed on the part of the Patentee As Experientia Pasc 14. Jac. B. R. Bret Cumberlands case if there be this clause in the Patent and that I S the Patentee shall repaire the house when it is decayed in this case the Patentee is bound by this covenant and all such like covenants But Quere of collaterall covenants in the first cases for therein it seemes the feoffee or lessee is not bound And yet it is said that if an indenture Co. super Lit. 231. be made between A of the one part and B and C of the other part and therein there is a lease made by A to B and C on certain conditions and B and C are bound to A by the indenture in twenty pound to performe the conditions and B only doth seale the deed and not C yet in this case if C accept of the estate he is bound by the covenants and one of them cannot be sued without the other whiles they are both living Qui sentit commodum sentire debet et onus Et transit terra cum onere If a man covenant for him and his heires to doe any thing whatsoever Co. 5. 17. Bro. covenant 38. 32 H. 6. 32. Dier 257. Fit◠covenant 31. hereby his heires are bound But otherwise except the Heire heires be bound by the deed by expresse name an heir shall scarcely be bound or charged in any case by a deed And therefore it is that if the lessee for years be ousted by any other but the heire himselfe no action of covenant will lie against the heire unlesse there be an expresse covenant wherein and whereby the lessor and his heirs are bound But if he be ousted by the heire himselfe it seemes an action of covenant will lie against him And yet if he be ousted by an elder title from the lessor cōtra for in this case the heir shal not be charged If a man doe covenant for himselfe only to pay money build a 10 H. 7. 10. Dier 19. 14 Bro. covenant 50 Dier 114. Executors Administrators house for quiet enjoying or the like and he doth not say in the covenant his executors Descent administrators c. yet hereby his executors administrators are bound shal be charged And yet if a lessee for years covenant for himselfe to repair the houses demised omitting other words it seemes in this case he is bound to repaire only during his life and the executors or administrators are not bound So if a lessor covenant for himselfe only to discharge the lessee of all quit rents out of the land it seemes this covenant is only personall and shall bind the covenantor only during his life But if in these cases these words during the terme be added in the covenant as if a lessee covenant for himselfe to repaire the houses during the terme or the lessor covenant for himselfe to discharge the lessee of all quit
for quiet enjoying Co. 4. 80. the implyed covenant is gone Expressum facit cessare tacitum By a release of all covenants from the covenantee the covenant 18 E. 4. 8. Release is discharged so as the release be by deed for a covenant by deed cannot be discharged by word And therefore if A by deed covenant with B to build a house by a day and B doth wish him to let it alone this is no discharge of the covenant If the lessor accept the rent of the lessee or his assignee after Pasc 6. Car. B. R. Adjudg Bachelors case a covenant broken this doth not discharge the breach of the covenant but the lessor may sue for it notwithstanding And so we come to a Warranty being a speciall kind of covenant and therefore next in order to be spoken to CHAP. VIII Of a Warranty A Warranty is a covenant reall annexed to lands or tenements Finch ley 39. Co. super Lit. 365. 1. Warranty Quid. whereby a man and his heires are bound to warrant the same Or it is where a man is bound to warrant the land or hereditament that another hath And he that doth make this warranty is called the warrantor and he to whom it is made Warrantor Warrantee the warrantee There are two kind of warranties 1. A warranty in deed 2. Quotuplex Co. 1. 2. super Lit. 365. 4. 81. or an expresse warranty which is when the same is expressed i. when a fine or feoffement by deed is levied or made in fee or a lease for life is made by deed comprehending warranty or which hath an expresse clause of warranty contained in it as when a conusor feoffor or lessor doth covenant to warrant the land to the conusee feoffee or lessee whch is in these words Ego I S heredes mei warrantizabimus imperpetuum defendemus W S heredibus suis tenementa predicta contra omnes homines imperpetuum And by the Statute of Bigamis Dedi is made an expresse warranty during the life of feoffor 2. A warranty in law or an implied warranty which is when it is not expressed by the party but tacite made and implied by the law whereof see divers Examples infra The warranty in deed also is either lineall which Co. super 383 384. 370. 365. is thus described 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 Or else it is collaterall which is thus described A warranty made by him that had no right or possibility of right to the land and is collaterall to the title of the land Also there is a warranty which doth commence by disseisin or wrong of all which â—ee divers examples afterwards And note that all these things here are to be applied to warranties of lands and concerning freeholds and inheritances for there is a warranty of goods and cattells in contracts of which we treat not here The fruit and effect of this warranty in deed is that it doth alwaies Co. super Lit. 265. 372. 365. 384. Co. 4. 121. 10. 97. conclude and barre the warrantor himselfe of the land so 3. The fruit and effect of it and what use may be made of it warranted for ever so that all his present and future rights that he hath or may have therein are hereby extinct And therefore if the father be dissâ—ised and the sonne in his life time release all his right to the land to the disseisor and make a warranty of the land in the deed and then the father dieth and the right of the land descendeth to the sonne in this case albeit the release doth not barre the sonne yet the warranty doth barre him And for the most part also it doth conclude and barre the heires of him that made the warranty to whom the same warranty doth descend to demand the same land against the warranty for if it be a lineall warranty it is a barre of an estate in fee simple without any Assets i. without any other land descended to him in fee simple from the same Ancestor that made the warranty And with assets it is a barre of an estate in taile And if it be a collaterall warranty it is with or without assets a barre of an estate in fee simple or â—ee taile and all possibility of right thereunto and yet so as it doth not passe any estate or right but only bind the right so long as the warranty is in force for if the warranty be avoided the right may be revived But neither the lineall or collaterall warranty can enlarge an estate And therefore if a lessor by deed release to his lessee for Co. super Lit. 389. c. life and warrant the land to him and his heires this doth not make his estate greater neither will it barre titles of entry or action in cases of Mortmaine consent to a Ravishor mortgage or dower And therefore if an Ancestor of the Lord hath title to enter upon an Alienation in Mortmaine and he release or make a feoffement with warranty this warranty will neither barre him nor his heire So if a collaterall Ancestor will make a warranty which doth after descend upon one that hath title of entry upon a condition broken this will not barre his entry c. neither will it barre any right that shall commence after the warranty made And the warranty that doth commence by disseisin doth not bind or barre any estate with or without Assets And in cases where the lineall or collaterall warranty is a barre Co. super Lit. 265. Co. 10. 98 99. Dier 42. Co. super Lit. 101. there if the party be impleaded by him or his heires that made the warranty the party impleaded that is tenant of the land may plead and shew forth this warranty against him and de mand Judgement whether he contrary to his owne warranty shall be suffered or received to demand the thing warranted and this in pleading is called a Rebutter And if he be impleaded or â—ued by another for Rebutâ—er Quid. the land then he to whom the warranty is made or his heires may vouch i. call in the warrantor or his heires to warrant the land Voucher Quid. And this is an interpleader in the nature of an action brought by the warrantor against the warrantee wherein he that doth vouch called the voucher is demandant and he that is vouched called Voucher Vouchee the vouchee is made tenant or defendant to the action and the vouchor is as it were out of the suite And this second tenant the vouchee is called the tenant by the warranty And hereupon shall Tenant by the warranty Quid. Summons ad warrantizandum Quid. issue forth to the Sheriffe a writ to summon the vouchee to appeare called a
Summons ad warrantizandum And if the vouchee appeare he must plead to the vouchor and if he shew cause why he should not warrant that must be tried and this shewing of cause is called a Counterplea to the voucher but if he plead in a voidance of the warranty it is called a Counterplea to the warranty And Counterplea to the voucher Quid. Connterplea to the warranty Quid. if he cannot gainesay the warranty the stranger shall recover the land demanded against the vouchor and he shall recover as much other land against the vouchee of the lands he hath or had at the time of the voucher And this recovery of other land is called a recovery in value And if the vouchee hath at the time of the voucher and recovery no lands descended to him to answer the warranty Recovery in value Quid. but hath afterwards land happening to him by descent from that Ancestor then he may have a resummons and recover the land that doth after happen But if the Sheriffe returne upon the summons that vouchee is summoned he doth make default then he shall have a Magnum cape ad valentiam when if he make default againe the Judgement shall be given against the vouchor and he shall recover over in value against the vouchee and if the vouchee appeare and then make default the vouchor shall have a parvum cape ad valentiam and then if he make default Judgement shall be given as before But if the Sheriffe returne upon the summons he hath nothing whereby he may be summoned then may the vouchor have a writ called Sequatur sub suo periculo whereupon shall goe an Alias and Pluries and if the like returne be made the Sequatur sub suâ— periculo Quid. demandant shall have Judgement against the first tenant but he cannot recover in value against the vouchee And if the case be so the vouchee had a warranty from some other for the land he may dearaigne i. maintaine the warranty over and shall recover Dearaignment del Garranty Quid. in value over also against his vouchor in the same manner as before Or the warrantee to whom the warranty is made or his heires may at any time before they be impleaded for the land if they will F. N. B. 134. Co super Lit. 102. bring a Warantia Chartae upon the warranty in the deed against â—arrantia â—hartae Quid. the warrantor or his heires and hereby all the land the heire of the warrantor hath by descent from the Ancestor that made the warranty at the time of this writ brought shall be bound and charged with the warranty into whose hands soever it goe afterwards so that if the land warranted be after recovered from the warrantee he shall recover so much land over againe of the other land of the heire of the warrantor or of the warrantor himselfe if he be living And albeit the warrantee or his heires doe recover in this writ yet he may after upon occasion vouch the warrantor or his heires notwithstanding And herein observe it is good policy if a man suspect any thing to bring this writ of Warrantia Chartae betimes because it binds all the land of the warrantor from the time of the writ brought and not any of his other lands he had before that time that are now aliened The words Dedi concessi or Dedi only in a feossement doe Co super Lit. 383 384. Co. 4. 81. 4. What words and clauses in a deed will make a warranty Or not make a warranty when an estate of franketenement or inheritance doth passe by the deed But the word Concessi only or Demisi concessi doe not make such a warranty And by force of the Statute of Bigamis chap. 6. Dedi is made an expresse warranty during the life of the feoffor The word Warrantizo or warrant is the only apt and effectuall Lit. Sect. 733. Co. 5. 17 18. word to make an expresse warranty or a warranty in deed and therefore this word only is used in fines And the words Defendo or Acquieto albeit they be commonly used in deeds yet of themselves without the other will not make a warranty If a man by deed doth grant to warrant land to I S and his Dier 42. Co. super Lit. 383. heires and the warrantor doth not bind his heires to the warranty or doth not warrant to I S and his heires but to I S only or doth warrant to I S and his assignes and not to I S and his heires or doth bind himselfe and his heires to warrant the land but doth not say how long nor against whom these are good warranties but how they shall be taken see afterwards A warranty in deed may be annexed to estates of inheritance Co. super Lit. 366. 389. or freehold and that not only of corporeall things which passe 5. To what things a warranty may be annexed and extended And to what not And how by livery as houses lands and the like but also of incorporeall things which lie in grant as Advowsons Rents Commons Estovers and the like which issue out of lands or tenements and that not only to inheritances in esse but also to such as are newly created as a man some say may grant a rent c. de novo out of land for life in taile or in fee with warranty So a warranty in law may extend to a rent newly created and therefore if such a rent be granted in exchange for an acre of land this Exchange and warranty thereunto annexed is good But a warranty may not be annexed to an estate or lease for years albeit it be a lease of one thousand years nor to any other chattell and therefore in all actions the which lessâ—e for years may have as trespasse c. a warranty cannot be pleaded in barre A warranty may be made upon any kind of conveyance as upon Co. super Litt. 372. 385. Litt. Sect. 738. 745 706. fines feoffements gifts c. also a warranty may be made by and upon releases and confirmations made to the tenant of the land albeit he that makes the release or confirmation hath no right to the land c. And yet some say that by a release or confirmation where there is no estate created or transmutation of the possession a warranty cannot be made to the assignee But if A be seised of land in fee and B doth release to him or doth confirm his estate in fee with warranty to him his heirs and assignes in this case all men agree this warranty to be good and so also it seems it is in the case last before and that both the party himself and the assignee may vouch A warranty in Law may be good in his creation albeit it be made 6. What shall be a good warranty in Law And how it shall barre and bind Co. super Litt. 384. 386. without deed for if
a feoffment bee to a bastard with warranty and hee die without issue and the Lord enter by Escheat in these cases the Lord shall never take advantage of these warranties But otherwise it is where a man comes to the land by limitation of use or a common recovery which is by the act of the party for if tenant in taile being in of another estate i. by disseisin or feoffement of a disseisor suffer a common recovery and a collaterall Auncestor of the tenant in taile doth realease with warranty to the recoveror and after the recoveror doth make a feoffment to uses which are executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case the terre-tenants may take advantage of the warranty by way of rebutter albeit the estate be transferred in the post So if hee to whom the warranty is made suffer a common recovery and after the Auncestor dieth the recoveror may take advantage of this warranty by way of rebutter for any man that hath the possession of land albeit he have no deed to shew how he came by the possession of it or how he is assignee may rebut the demandant and so barre him and defend his owne possession And therefore the tenant by the curtesie donee in taile that is in of another estate an assignee by force of a warranty made to a man and his heirs feoffee of a donee in taile may rebut and bar the demandant by the warranty If one infeoffe another of an acre of ground with warranty Co. super Litt. 376. 1 Ed. 3. 13. 5 H. 7. 2. and hath issue two sons and dieth seised of another acre of land of the nature of Burrough English in this case albeit the warranty descend upon the eldest sonne onely yet both the sonnes may be vouched And so also it is of heires in Gavelkind the eldest shall be vouched as heire to the warranty and the rest in respect of the inheritance And in like sort the heire at the Common law and the heire of the part of the mother shall bee vouched or the heire at the Common law may bee vouched alone at the election of the tenant And in like sort the heire at the Common law shall be vouched with the heire in Burrough English And so also a bastard shall be vouched with a mulier And if a man die seised of certain lands in â—ee having issue a sonne and a daughter by one venter and a sonne by another and the eldest sonne entreth and dieth and the land doth descend to the sister in this case the warranty doth descend on the son and he may be vouched as heir and the sister also may be vouched as heir to the land If two make a feoffment with warranty and the one die the survivor shall not be charged alone with the warranty but the heir Co. 3. 14. â—uper Lit. 386. 16 H. 7. 13. 48 Ed. 3. 5. of him that is dead shall be charged also And if two be bound to warrant land and both of them die the heires of both of them ought to be vouched and shall be equally charged And if the heir be vouched in the ward of three severall persons the one of them onely shall not be charged but they shall be charged equally If a woman an heir of the disseisor infeoff me with warranty afâ—er she is maried to the disseisee in this case I may take advantage of Co. super Litt. 365. this warranty against the disseisee and rebut him upon it if he sue me for the land So if the husband and wife sue me for the land of his wife and I have a warranty of a collaterall Auncestor of the husbands descended to him in this case I may make use of this to barre the husband and wife A warranty lineall or collaterall may be defeated determined or 13. When a warranty shall be said to be defeated determined or avoided And how Or not Co. super Lit. 392. 393. avoided in all or in part And this is sometimes by matter in law and sometimes by matter in deed If the estate to which the warranty is annexed be gone the warranty annexed thereunto is gone also And therefore if an estate Co. 10. 96. 1 2 3. 62 Lit. Sect. 741. Co. super Lit. 392. tail towhich a waranty is annexed be spent the warranty is determined And if a man make a gift in taile with warranty and after the donee doth make a feoffment and die without issue the warranty is gone So if tenant in taile discontinue the taile and the discontinuee be disseised or make a feoffment on condition and a collateral auncestor of the issue release to the disseisor or feoffee on condition with warranty and after the discontinuee doth enter upon the disseisor or on the feoffee for the condition broken in these cases the warranty made by the collaterall auncestor is gone So if a Seigniory be granted with warranty and the tenanâ—y escheat so that the Seigniory is extinct hereby also the warranty is defeated So if a collaterall Auncestor heretofore had released with warranty and then had entred into Religion this warranty had bound but if after he had been dearaigned the warranty had been defeated If the father make a feoffment to his sonne and heire apparant Co. super Lit. 384. Bro. Garranty 27. with warranty and die so that the warranty doth descend upon the sonne hereby the warranty is gone And yet if a feoffment be made to a man and his heires and he dieth leaving issue daughters in this case the warranty shall be divided and is not determined If tenant in taile doth make a feoffment to his Uncle and after Lit. Sect. 743. Co. super Lit. 390. Lit. Sect. 744. the Uncle doth make a feoffment in fee with warranty c. to another and after the feoffee of the Uncle doth reinfeoffe againe the Uncle and after the Uncle doth infeoffe a stranger in fee without warranty and dieth without issue and the tenant in taile dieth hereby the warranty made to the first feoffee is defeated So if the Uncle make the warranty to the feoffee his heires and assignes and take backe an estate in â—ee and after doth infeoffe another But if one make a feoffment with warranty to the feoffee his heires and assignes and the feoffee doth reinfeoffe the feoffor and his wife or the feoffor and a stranger in these cases the warranty is not defeated but doth continue still So if two doe make a feoffment with warranty to one his heires and assignes and the feoffee doth reinfeoffe one of the feoffors in this case the warranty is not gone And â—f in the first case the feoffee make an estate to his Uncle in tail or for life saving the reversion or a lease for life the remainder over c. in this case the warranty is only suspended If one make a feoffment or release with warranty and after is
Co. super Lit. 391. attained of treason or felony hereby the warranty is gone and albeit he doe afterwards obtaine his Pardon yet the warranty is not revived If a feoffment with warranty be made to two or more and they Co. 6. 12. being Jointenants doe after by deed make Partition by this the warranty is determined So if two Jointenants be and one of them disseise the other and he that is disseised doth recover in an assise and hath Judgement to hold in severally hereby the warranty is determined * Adjudge Hil. 22 Jac. B. R. Eustace Sholes case So if A and B be Jointenants of white acre for life and A by fine doth grant to B totum quicquid habet in tenemeutis hereby the warranty is gone But if a Partition be made by Judgement upon a writ by force of the Statute of 13 H. 8. this doth not defeat the warranty fallen to them but it shall be divided between them and they shall all of them take advantage of it If one enfeoffe three with warranty to them and their heires Co. super Lit. 385. and one of them release to one of the other two hereby the warranty is gone for that part But if one of them release to the other two in this case the warranty is not gone but doth continue and they may vouch upon it If one enfeoffe two men and their heires and one of them doth Co. super Lit. 385. make a feoffment in fee hereby the warranty is not determined but the other may take advantage of it notwithstanding If the party that hath the warranty or the estate to which the Co. super Lit. 393. 392. Lit. Sect. 748. Release warranty is annexed release to him that is bound to warrant all warranties or all covenants reall or all demands by either of these releases the warranty is gone So also if by a defeasance made Deseasance between the parties it be agreed the warranty shall be void by this defeasance the warranty may be avoided also Or if it be so agreed that the warrantee or his heires c. shall not vouch or have a Warrantia cartae by this the warranty is avoided in part If tenant in taile doth enfeoffe his Uncle which doth enfeoffe another Co. super Lit. 391. in â—ee with warranty if in this case the feoffee release the warranty to his Uncle hereby the warranty is extinct But if a gift in taile be made with warranty in this case a release made by the tenant in taile of this warranty will not extinguish it If the parties between whom the warranty is intermary hereby Co. super Lit. 390. the warranty is suspended during the coverture in some cases If tenant in taile doth make a feoffment in fee with warranty Co. super Lit. 330. and disseiseth the discontinuee and dieth seised this doth suspend the warranty If two make a feoffment in fee and warrant the land to the Co. super Lit. 393. feoffee and his heires and the feoffee doth release the warranty to one of the feoffors this doth not determine the warranty of the other as to the moity So if one doth infeoffe two with warranty and the one of them doth release the warranty this doth not extinguish the warranty for the other moity but it doth continue still A warranty also may lose his force by taking benefit or making use thereof for after a man hath once taken advantage thereof in some cases he can make no further use of it of which read Co. super Lit. 393. And now having done with Deeds in generall and some of the parts thereof in speciall we are in order to come to some speciall kinds of deeds wherein we will first begin with a deed of Feoffment CHAP. IX Of a Feoffment FEoffamentum i. Donatio feodi strictly and properly is the gift 1. Feoffment Quid. New termes of the law Co. super Lit. 9. Lit. Sect. 57. or grant of any honors castles manors messuages lands houses or other corporall immovable things of like nature which be hereditable to another in fee simple i. to him and his heirs for ever by the delivery of seisin and possession of the things given And from hence comes the word Infeoffe for by this word and the Infeoffe words Give and Grant as the most apt words for that purpose is this kind of conveyance most commonly made Hence also it is that he that makes this feoffment is called the feoffor and he to whom it is made the feoffee Also it is sometimes but improperly Feoffor Feoffee called a feoffment when an estate of freehold only doth passe This kind of conveyance albeit it may be made in most cases by 2. Quotuplex See West Sym. 1. part Sect. 235. Co. super Lit. 6. word without any writing â—et it is most commonly done by writing and this writing is then called a Deed or Charter of feoffment but hence is the division of a feoffment by word or a feoffment by writing The ancient formes and examples of these deeds are very briefe and and yet they had these parts contained in them 1. The Premisses 2. The Habendum 3. The Tenendum 4. The Reddendum 5. The Clause of warranty 6 The In cujus rei testimonium 7. The Date 8. The clause of Hiis testibus Haec fuit candida illius aetatis â—ides simplicitas quae paâ—câ—lis lineis omnia fidei firmament a posueruut * Co. super Lit. 49. 9. Co. 1. 111 112. Plow 554. 9 H. 7. 24. 39 H. 6. 43. Co super Lit. 237. Perk. Sâ—ct 210. 24 E. 3. 70. Co. 1. 121. Co. 6. 70. Bro. scire facias 88. Plow 423 424. And this manner of conveyance as it is the most ancient kind 3. The nature and operation of it of conveyance so is it the best and most excellent of all others and in some respects doth excell the conveyance by â—ine or recovery for it is of that nature and efficacy by reason also of the livery of Seisin evermore inseparably incident to it that it cleereth all disseisins abatements intrusions and other wrongfull and defeasible titles and reduceth the estate cleerly to the feoffee when the entry of the feoffor is lawfull which neither fine recovery nor bargaine and sale by deed indented and inrolled will doe when the feoffor is out of possession And it passeth the present estate of the feoffor and not only so but barreth and excludeth him of all present and future right and possibility of right to the thing which is so conveyed insomuch that if one have divers estates all of them passe by his feoffment and if he have any interest rent common or the like into or out of the land it is extinguished and gone by the feoffment And further it barreth the feoffor of all collaterall benefits touching the land as condition power of revocation writs of error attaint and the like
feoffees donees or lessees then one in such cases albeit all of them die but one the livery of seisin may be made to that one that doth survive and it will be good to him to execute the estate in all the land And so it is if there be a warrant of atturney made by a Corporation aggregate as a Mayor and Communalty Deane and Chapter or the like to give livery of seisin in this case the death of the Mayor c. will not determine the authority and therefore in that case the livery of seisin may be made after his death 2. If it be a lease for years with a remainder over in fee the livery must be made to the lessee for yeares before his entry or at the time Co super Lit. 49. 216. Perk. Sect. 205. when he doth enter for that purpose for afterwards it cannot be made Quod semel meum est amplius meum esse non potest Quere also whether the law be not so in all other cases and let men take A caveat heed they doe not as commonly they doe enter into the land before they have livery of seisin made thereof unto them And yet it seemes the livery of seisin is good when it is made afterwards by Co. 2. 55. 3. It must not be made before the estate begin for Co. super Lit. 217. if a lease be made for years to begin at Michaelmas with a remainder over and the livery of seisin is made before Michaelmas this livery of seisin is void for if a livery worke at all it must worke presently and so it cannot in this case because it is before the estate doth begin If an estate be made of divers peeces of land in divers villages in Co. super Lit. 48. Perk. Sect. 227. 228. Doct. Stud. 3. Lit. Sect. 61. 418. Perk. Sect. 226. Fitz. feoffments Faits 111. the same county in this case the making of livery of seisin of and 3. In respect of the place or thing wherein it is made in any part thereof in the name of all the rest or of one parcell according to the deed albeit he doth not say in the name of c. sufficeth for all if all the peeces be in the grantors possession and out of lease But if the peeces of land lie in divers counties or in the same county and they be in lease or out of the possession of the feoffor contra for in that case the making of livery in one part in the name of all the rest is not sufficient for the rest for in this case it is requisite that livery of seisin be made upon and in some of the lands in both counties and upon every parcell of land that is out of possession or at least in some parcell of the land in the occupation of every severall tenant And yet if one part of a Manor be in one county and theother part in another county in view of that part in this case it seemes livery of seisin in the one part in the one county in view of the other part in the other county is good sufficeth for all So if the seite of a Manor lie in one county and the rest of the Manor in another county in this case the making of livery in the scite of the Manor is sufficient for the whole Manor If a feoffment be made of the Manor of Dale in Sale the which Manor Perk. Sect. 228. doth extend in Dale and Sale and livery of seisin is made accordingly in Dale only and not in Sale also by this feoffment there doth passe no more of the Manor but that which is in Dale only If I 9 H. 7. 25. per Frowick be seised of one acre in fee and of another acre for life and I make a feoffment of both acres and make livery of seisin in that acre whereof I am seised in fee in the name of both acres in this case it seemes this sufficeth to passe both the acres But if I be seised of one acre in fee and possessed of another acre for years and I make a feoffment of both acres and livery of seisin in that acre only whereof I am seised in fee in the name of both the acres contra for this is as If I make a feoffment of land whereof I am seised and of other land whereof I am not seised c. If I be seised of two acres Fitz. Faits Feoffments 2. of land and let one of them for years and then make an estate of both of them to another and make livery of seisin in that I have in possession in the name of both the acres this will not serve to passe the other acre but livery must be made in that acre also And accordingly it was agreed in a case in the Kings Bench Hil. 38 Eliz. which was that a man was seised in fee of a Manor and Mountague versus Jefferies other lands called Groves and he made a feoffment of it Groves being then in lease for years and a letter of atturny to give livery and the atturny made livery of the Manor in the name of the rest the lessee being still in possession of Groves in this case it was agreed that this was no good feoffment for Groves When a feoffment is made of a house and land the livery of See infra seisin is most aptly to be made of and in the house in the name of the rest and at the doore of the house c. And when a feoffment is made of a Rectory or Parsonage the livery of seisin may be made in the Parsonage house or if there be no house it may be made upon the Glebe or if there be neither it may be made at the ring of the Church doore In the making of every livery of seisin it is requisite that all persons 4. In respect of the presence or possession of others See before Numb 4. that have any lawfull estate and possession in the thing whereof livery is to be made as lessees for life years and such like joine in the making thereof or be removed thence for every livery ought to bring an immediate possession to the feoffee donee c. If lessee for years make a feoffment and a warrant of atturny to Dier 362. give livery of seisin and the atturny make livery of seisin the lessor being present upon the land and not contradicting it it seemes this is a good livery of seisin The presence of the feoffor donor c. upon the land after he Bro feoffments 24. hath delivered seisin to the feoffee donee c. albeit he stay upon the land a while and doe not depart and leave the feoffee c. in possession will not hurt the livery See more supra Numb 4. Livery of seisin may be made of any corporall thing as Manors Co. super Lit. 49. 5. In respect of the matter whereof
it is to be made houses lands meadowes pastures woods chambers or the like And these things therefore are said to lie in livery But of incorporall things as rents advowsons commons estovers and such like things livery cannot be made And these things therefore are said to lie in grant and not in livery And therefore when a livery is made of these nil operatur See more above Numb 4. To every good livery of seisin is requisite either such an act as the Co 9. 137. super Lit. 49. 6. In respect of the manner order of making it And how livery of seisin is to be made law doth adjudge to be a livery or apt words that doe amount unto it for a livery may be good by words without any act or deed at all But it cannot be good by an act or deed without any words at all howbeit that livery that hath an act or ceremony in it is the best because it taketh the deepest impression in the witnesses The most usuall formall and orderly manner of making of livery West Symb. 1. part Sect. 251. Perk. Sect. 209. 210. Co. super Lit. 48. of seisin is thus that the feoffor donor c. and the feoffee donee c. if they be present or in their absence their atturneys or servants that have authority doe come to the doore backside or garden if it be a house if not then to some part of the land where seisin is to be delivered and there in the presence of many good witnesses doe show the cause of their meeting openly and plainly doe read the deed or declare the contents thereof and of the letter of atturny if there be any And then the feoffor c. or his atturny if it be a house doe take the ring latch or haspe of the doore all the people men women and children being out of the house or if it be of a peece of ground doe take a clod of the ground or a bough or twig of a tree or bush growing thereupon and all the people being out of the ground the same ring c. clod bough c. with the deed doe deliver to the feoffee donee c. or to his atturny and in the delivery hereof doe use these or some such like words viz. I deliver these to you in the name of seisin of all the lands and tenements contained in this deed To have and to hold according to the forme and effect of the same deed Or I deliver you seisin and possession of this house or ground in the name of all the lands contained in the deed according to the forme and effect of the deed And then if it be a house the feoffee c. doth enter in first alone and shut to the doore and then he doth open it and let in others And if the feoffment gift or lease be made without deed then they doe and must withall expresse the very estate it selfe which the feoffee donee or lessee is to have as for example the feoffor donor or lessor must come to the house or land which is to be granted and where livery of seisin is to be made and there must by apt words grant the house or land to him that is to have it in fee simple or in taile or for life as the agreement is and in seisin thereof must deliver him the ring of the doore or a turfe or twig of the land And if the feoffment c. be made by writing then it is wisdome to indorse and set downe on the back of the same how when and where the same is made and the names of the witnesses thereunto But a livery of seisin that is not so exactly made may be good notwithstanding And therefore if the feoffor donor c. or his atturny Co. 9. 137. Fitz. feoffments faits 111. take any thing else that comes from off the land as a stone or the like and therewithall doth make the livery of seisin or if he take a turfe or twig from off another mans ground and not from the same whereof possession is to be given and deliver that upon the ground in the name of seisin Or if he take a peece of silver or gold or a rod stick or the like and deliver this upon the land in the name of seisin all these are good deliveries of seisin and possession So Co. 6. 26. 41 E. 3. 17. if the feoffor c. be at the doore of the house or by the land or in the house or upon the land and after he hath delivered the deed he say to the feoffee donee c. Here I deliver you seisin and possession of this house or land in the name of seisin and possession of all the lands and tenements contained in the deed Or have and enjoy this house or land according to the deed Or enter into this land or house and God give you joy of it Or I am content you shall enjoy this land in all these cases there is a good livery of seisin Et sic de similibus If I being seised of a house in fee make a feoffment of it and of Bro. feoffment 28. divers lands to a man then present with me in the same house and there deliver him the deed in the name of seisin of all the lands contained in the deed in this case this is a good delivery of the deed and a good livery of seisin also albeit I continue in possession of the house still and goe not out of it And if I be Lord of a Manor and Perk. Sect. 211 212. lying sicke within some part of the Mannor I make a feoffment of the Manor and deliver the deed to the feoffee saying to him I will that you take seisin presently and thereupon command all my tenants of the manner to atturne to him and they doe so this is a good livery of seisin So if I make a deed and after I have read it Perk. Sect. 215. Co 6. 26. being upon the land I deliver it to the feoffee donee c. and say Here I deliver you this charter as my deed in the name of seisin of all the lands therein contained or the like this is a good delivery of the deed and of seisin But if I doe only seale and deliver the deed upon or in view of the land without saying or doing any more this will not amount to a livery of seisin * Cromwals case Adjudged in the exchequer 15 Eliz. And therefore if a man make a feoffment with a letter of atturny to give livery of seisin and then he deliver the deed upon the land this is no good making of livery of seisin And so also if there be no letter of atturny If I be seised of a house in fee and being in the house say to Co. 6. 26. I S Here I S. I demise you this house for terme of my life this will not amount to a livery of
of the tenant yet the bargainee shal have benefit of a condition as an assignee within the Statute of 32 H. S. And it seems he may vouch by force of a warranty annexed to the estate of the land because he is in partly in the per and partly in the post All things for the most part that are grantable by any other way See West Symb. tit Bargain and Sale 4. Of what things a bargain and sale may be Or not from one man to another are grantable and may be transferred by way of bargain and sale from one to another And therefore lands rents advowsons commons tithes profits of Courts and the like may be granted by way of bargain and sale in fee simple fee tail for life or years And all manner of goods and chattels as leases for years wardships cattell corn housholdstuffe wood trees merchandises and the like are grantable by way of bargain and sale But it seems Estovers and such like things de novo and that 6 Jac. B. R. Adjudged 21 H. 6. 43. per Yelverton have not essence before are not grantable by way of bargain and sale as they are by way of grant or lease and therefore that a bargain and sale of such things is void If any estate of freehold or inheritance be made of land by way 5. What shall bee said a good bargain sale And what things are requisite to make such a bargain and sale Or not Of lands of bargain and sale the same must be made by a writing or deed Stat. 27 H. 8. ch 16. indented and cannot be made by word of mouth onely as a lease for years whether it be created de novo or be in esse before may be But lands in London by a speciall Proviso within the Statute may be bargained and sold by word of mouth without any writing 2. The very words Bargain and Sell are not necessary to a good bargain sale for words equivalent will suffice to make land Co. 8. 94. 7. 40. 2. 36. passe by way of bargain sale And therefore if a man seised of land in fee do by deed indented and by the words alien or grant sell them to another or if such a man covenant to stand seised of his land to the use of another and these deeds are made in consideration of money and the deeds be after inrolled these will amount to good bargains and sales And if a man by a deed indented and inrolled in consideration of ten pound paid to him by the words demise and grant passe his lands to another for twenty years this is a good bargain and sale 3. There must be some good consideration Co. 1. 176. given or at least said to be given for the land And therefore if A for divers good considerations a Ward versus Lambert Pasche 37 Eliz. or in consideration that the bargainee is bound for the bargainor and for divers other good causes b 41 El. Adjudged or for divers great and valuable considerations bargaine and sell his land by deed indented and inrolled to B and his heirs nihil operatur But if in these cases in truth there be money or other good consideration given albeit it be not expressed upon the deed Dier 169. the bargainee may aver it and being proved the bargain will bee Averment good And if the deed make mention of money paid as in consideration of an hundred pound or the like and in truth no money is paid yet the bargain and sale is good And no averment will lie against this which is expresly affirmed by the deed And if the deed Dier 90. mention and say for a certain sum of money or for a certaine competent sum of money these are good considerations 4. There needs no livery of seisin or atturnment in this case And therefore Co. 7. 40. 8. 94. if one bargain and sell a reversion by deed indented and inrolled for good consideration the reversion will passe without any atturnment of the tenant And if it be onely a lease for years of a reversion that is granted there needs no atturnment nor inrolment And in case of a bargaine and sale the bargainee is in actuall possession before any entry so that the lessee may atturn to the grant of the reversion as hath been ruled in Mittons case Mich. 18 Jac. in Cur'Ward by the two Chief Justices and the whole Court And yet I think he hath not such a possession as to bring any possessory action for trespasse or the like untill an actuall entry for where the Statute of 27 H. 8. of uses provides that the actuall possession shall be adjudged according to the use yet it ought to have a circumstance Co 5. 112. which is requisite by the common law viz. an actuall entry in deed But there must be an inrolment of the deed in case Stat. 27 H. 8. ch 16. Pl. 307. where any freehold doth passe for it is provided That no lands Inrolment Where necessary And how it must be done except in some Corporations only shall passe from one to another by any deed whereby any estate of inheritance or freehold shall be made or take effect in any person or persons to be made by reason only of any bargain and sale thereof except the same be made and done by writing indented sealed and inrolled in one of the four Courts the Chancery Kings Bench Common Pleas or Exchequer or else within the same County or Counties where the lands so bargained and sold doe lie before the Custos Rotulorum and two Justices of the Peace and the Clerk of the Peace of the same County or Counties or two of them at the least whereof the Clerk of the Peace to be one And the same inrolment to be within six moneths next after the same writing or deed is dated And this Statute was made in the same Parliament wherein the law of transferring of uses into possession was made to the end that mens lands might not suddenly and privately passe upon payment of a little money in an alehouse or the like And herein these things must be observed 1. The inrolment upon such a deed as to make this estate to passe must be in parchment for an inrolment in paper is not good 2. The deed inrolled must be indented for if it be but poll the estate will not passe 3. It must be inrolled within six moneths of the purchase or sale * Co. 5. 1. And this account must be 1. From the date and not from the time of the delivery of the deed 2. After twenty eight days to the moneth 2 Dier 218. Adjudge Franklin Garters case Mich. 37 38 Eliz. 4 Dier 218. and no more 3. The day of the date to be taken exclusive and for none of the days of the six moneths And yet if a deed be inrolled the same day it bears date it is good 4.
If it be inrolled any part of the last day of the six moneths it is sufficient And thus the deed may be inrolled within the sixe moneths albeit either of the parties die within the time And if the deed be not thus inrolled Ruled in the Court of Wards Co. 11. 48. it is of no force at all So that if one bargain and sell his land to mee and the trees upon it in this case albeit the trees might have been sold alone by deed without inrolment yet now being not inrolled because the sale is not good for the land it shall not be good for the trees also And no subsequent act will help in this case for if one by words of bargain and sell onely without any other words in the deed grant a reversion and the deed be not inrolled and after the tenant doth atturn hereby nothing doth passe neither shall it enure as a confirmation But yet this must be noted that in some cases where a deed will not enure by way of bargain and sale for some of the causes aforesaid it may enure to some other purposes A bargain and sale may be made of goods Experientia Of goods and cattels and cattels without any such solemnity as before for it may bee by word as well as by writing with or without any words of bargain and sell as well as by those words by a deed poll as well as by a deed indented and that without any inrolment at all and without any delivery of any part of the things sold or of any peece of money as the manner is in the name of seisin But in this case also Plow 308. some respect is to be had unto the cause and consideration of the bargain as well as in the case of the bargain and sale of lands For howsoever perhaps in the case of a grant or bargain and sale of goods or cattels by deed in writing the consideration is not materiall And that if a man doe by his deed under his hand and seal bargain and sell timber trees or any other thing without any consideration at all the same may passe well enough yet if the contract Dier 29 30. 14 H. 8. 19. 9 H. 7. 21. 21 H. 7. 6. 10 H. 7. 6. Plow 432. be by word or by writing sealed and not delivered if there be no consideration or no good consideration of it it is of no effect at al. And therefore if a man by word of mouth sel to me his horse or any other thing and I give him or promise him nothing for it this is void and will not alter the property of the thing sold But if one sell me a horse or any other thing for money or any other valuable consideration and the same thing is to be delivered to me at a day certain and by our agreement a day is set for the payment of the money or all or part of the money is paid in hand or I give earnest money albeit it be but a penny to the seller or I take the thing bought by agreement into my possession where no money is paid earnest given or day set for the payment in all these cases there is a good bargain and sale of the thing to alter the propertie thereof and in the first case I may have an action for the thing and the seller for his money in the second case I may sue for and recover the thing bought in the third I may sue for the thing bought and the seller for the residue of the money in the fourth case where earnest is given we may have reciprocall remedies one against another in the last case the seller may sue for his money If A sell cloth to B for ten shillings and B takes away the cloth against the will of A in this case A shall have an action of trespasse against B. And if A sell cloth to B for ten shillings in his election to make it a bargain or not and if he will he may keep his cloth untill the other pay him and if A say nothing but doth suffer B to take it away he may make it a bargain if he will and bring an action of debt for his money If I offer money for a thing in a Market or Faire and the seller agree to take my offer and whiles I am telling the money as fast as I can hee doth sell the thing to another Or when I have bought it we agree that he shall keep it untill I can goe home to my house to fetch the money in both these cases especially in the first the bargains are good so as the seller may not sell them afterwards to another and upon the payment and tender and refusall of the money agreed upon I may take or recover the things If one doe bargain and sell his land to me for money To have 6. How a bargain and sale shall be taken Co. 1. 87. super Litt. 10. Dier 169. and to hold to me generally and doth not say to me and my heirs by this I have but an estate for life and no more If one in consideration of ten pound paid by me doth bargaine Of lands Dier 155. and sell his land to me and my heirs To have and to hold to me to the use of the bargainor for life the remainder in tail to me the remainder to the right heirs of the bargainor this Habendum in this case is void and I and my heirs shall have the land for ever If one in consideration of ten pound sell me land for the term Co. 6. 33. of twenty years and doth not say when this term shall begin in this case it shall begin presently See more in Exposition of Deeds chap. 5. in toto If one sell me any thing by the tod pound bushel yard or ell Kelw. 87. Plow 140. 41. it shall be accounted me assured and reckoned according to the Of goods custome of the country and place and not according to the statutes or the measures of other countries If one sell me twenty barrels of ale or ten pottles or cups of Plow 86. 27 H. 8. 27. Brob Contract 4. wine by these bargains I shall not have the barrels pottles or cups with the ale or the wine But if one sell me a hogshead or a firkin of wine it seems by this bargain I shall have the hogshead and firkin with the wine If one sell me all his trees in such a wood and that I shall not 27 Ass 29. cut them untill Michaelmas and in the interim hawks doe breed in the trees it seems in this case that the vendor shall have them and that I may not meddle with them And yet see Co. 11. 58. which seems to be to the contrary The inrolment of a deed of bargain and sale when it is done within 7. How and to what purposes a deed of bargain and sale of lands and the
inrolment thereupon shall relate And how and to what purposes not Co. 4. 71. Bro. fait Inrol 9. the sixe moneths shall to most purposes relate to the time of the delivery or of the date of the deed And it is given as a rule That it shall have relation to the time of the delivery of the deed viz. to avoid all meane estates and charges made to a stranger by the bargainor after the delivery of the deed before the inrolment but not to devest any estate lawfully settled in the interim in the bargainee himself And therefore if one bargain and sell his land by deed indented to one and after before the deed is inrolled he enter into a statute or grant a rent-charge out of this land or make a lease of the land to another and then the deed is inrolled within the time in this case the relation shall avoid all the mean charges and estates And if A bargain and sell his land by deed indented to B and afterwards doth sell the same land by deed indented to C and the deed made to C is first inrolled and then the deed made to B is inrolled also within the six months in this case B shall have the land and the relation of his inrolment shall make the inrolment of the other deed void So if A levy a fine Dier 218. of the land to C yet B shall have the land But if the first deed Curia M. 3 Jac. B. R. made to B be not inrolled within the six moneths and the deed to C be inrolled within the six moneths contra If A bargain and sell land to B and after levy a fine to B of the Co. 4. 71. same land and after within the sixe moneths the deed is inrolled in this case B shall take by the fine and not by the bargain and sale If one jointenant alien all his lands in Dale to A and before the Bro. fait Inroll 9. inrolment the other jointenant die and after the deed is inrolled in this case but a moity and not the whole land doth passe If A bargaine and sell his land to B and after this A doth become So held 4. Car. B. R. Bankrupt and the Commissioners sell the land to C and 〈◊〉 after the deed is inrolled within six months in this case B and not C the purchasor shall have the land If A bargain and sel his land held in capite to B in fee B dieth Pasche 15. Jac. Ward before inrolment and then the deed is inrolled in this case the heir of B shall be inward And so was it held by all the Justices in Sir Walter Earls case Pasch 15 Iac. Curia Ward And yet in this case the wife of the bargainee shall not have dower as was held Contrarium tent per Iust Berkley Hil. 11 Cat. Dower by Anderson Chief Justice and Justice Walmsley 3 Iac. Co. B. and again in Sir Robert Barkers case 6 Iac. And if one bargain and sell 〈◊〉 his land to I S and after this the rent incur and then the deed is inrolled the bargainee and not the bargainor shall have the rent Per Curiam B. R. Hil. 11 Car. If A bargain and sell his land to B in fee and then mary C and 22 Eliz. die and C is endowed and after the deed is inrolled in this case the dower of the woman shall be taken away by relation as was held in Baron Frevils case 22 Eliz. Co. B. If A bargain and sell land to B and C in fee and B release to C Release 3 Jac. Co. B. before the inrolment this release is void If A disseisor bargain and sell the land disseised to B in fee and So held in Mockets case 10 El. the disseisee doth release to the bargainor and after the deed is inrolled in this case this release shall avail B. If A bargain and sell his land to B and B before inrolment doth bargain and sell the land to C the first deed is inrolled and then the second deed is inrolled in this case the last bargain and sale is void and shall not be made good by relation as was held by the Court 6 Jac. in Sir Robert Barkers case If a lease be made rendring rent on condition to reenter for not So was it held in Sir Christopher Hattons case payment and the lessor bargain and sell the reversion by deed indented and after the deed made the rent is arere and then the deed is inrolled in this case it shall not relate to give a reentry for the condition broken If A bargain and sell land to B in tail and B before inrolment of So hath it been adjudged the deed doth make a lease according to the Statute of 32 H. 8. and after the deed is inrolled this is a good lease And now we come to a Gift CHAP. XI Of a Gift THis word importing no more then the transferring of the property of a thing from one to another is of larger extent then Gift Quid. a feoffement which is always applied to an immoveable thing for this is often applied to moveable things also as trees cattell houshold-stuffe c. the property whereof is and may be altered as well by gift as by sale or grant And in this sense a gift is sometimes by the act of the party as when one man doth give a thing to another And this is or may be either by word or by writing And sometimes it is by act of Law as when a woman is maried to a husband or one is made Executor to another in these cases by the mariage onely and taking of the Executorship the Law gives all the goods of the woman to the husband and of the Testator to his Executor So where one doth take my goods as a trespasser and I recover damages for them upon a suit in Law in this case the Law doth give him the property of the goods because hee hath paid for them But this word Gift is sometimes taken more strictly and applied to a conveyance or passing of an estate of lands or tenements to another in tail wherein this word Dedi is most commonly used And then hee which doth so give the land is called the donor and hee to whom it is given the donee And this for the most part is by deed though it may be otherwise Donor Donee And for these deeds of gift of immoveable or moveable things see Deed and Grant in toto wherein all the learning touching this matter is involved And so we passe to a Grant CHAP. XII Of a Grant THis word taken largely is where any thing is granted or passed Grant Quid. from one to another And in this sense it doth comprehend Co. super Litt. 172. 9. Finchesley 29. feoffements bargaines and sales gifts leases charges and the like for he that doth give or sell doth grant also And
thus it is sometimes in writing or by deed and sometimes it is by word without But the word being taken more strictly and properly it is the grant conveyance or gift by writing of such an incorporeall thing as lieth in grant and not in livery and cannot be given or granted by word onely without deed Or it is the grant of such persons as cannot passe any thing from them but by deed as the King bodies corporate c. And this albeit it may be made by other words yet it is most commonly made by this word grant as being most proper to this purpose Know therefore that amongst Co. super Litt. 49. hereditaments some are such as are said to lie in livery i. such as whereof livery of seisin may be made as Manors houses lands c. And some are such as doe not lie in livery i. whereof no livery of seisin can nor need to be made but they passe by the delivery of the deed without any more and of this sort are rents reversions services advowsons in grosse and the like which things cannot passe from man to man without deed or matter of record which is of a higher nature then a deed And hee that makes this grant is called the grantor and hee to whom it Grantor Grantee is made is called the grantee It is taken here in the largest sense as that which doth comprehend 2. Quotuplex both And so some grants are of the land or soile it selfe and some are of some profit to be taken out of or from the soile as rent common c. And some are of goods and chattels and some are of other things as authorities elections c. And they are made sometimes by matter of record sometimes by deed or writing in the country and sometimes by word without either Some grants also tend to charge the grantor with something he was not charged with before and some to passe something out of him to the grantee and some tend to discharge the grantee of something wherewith he was charged or chargeable before and whereof he is now hereby discharged Regularly these things are requisite in every good grant or 3. Things necessarily requisite to every good grant Co. 11. 73. Plow 555. gift 1. That there be a grantor donor c. and that he be a person able to grant and not disabled by any legall or naturall impediment 2. That there be a grantee donee c. and that he bee a Perk. Sect. 1. person capable of the thing granted and not disabled to receive it 3. That there be a thing granted and that the thing be such a thing as is grantable 4. That it be granted in that order and manner that Law requireth as where the thing is not grantable without deed that it be done by deed And if it be by deed that the deed have apt words to describe and set forth the person of the grantor and grantee and thing granted c. and that all necessary circumstances as sealing and delivery and livery of seisin and atturnment where it is needfull bee observed 5. That there bee an agreement to and acceptance of the grant or thing granted by him to whom it is made and for default in either of these particulars a grant may be void In acquirendo rerum dominio scilicet quod donationes non valent licet sint inceptae nisi sint perfectae But if grants Bro. Grant 89. be very ancient and the things granted have been enjoyed according to the grant ever since the making of it in this case the grant may be good notwithstanding some legall defect in some of these particulars Corporations as Dean and Chapter Maior and Communalty and 4. What shall bee said a good and sufficient grant gift or sale Or not 1. For the manner of it And what may bee granted without deed Or not And how Rents Services c. Perk. Sect. 64. 4 H. 7. 17. Plow 150. 16 H. 7. 3. Litt. Sect. 60. such like regularly can neither grant lands goods or chattels but it must be by deed But the grantees of such persons and all other common persons may grant or give any thing which doth lie in livery as manors houses lands and such like things in fee simple fee tail for life for years or at will by word without deed And if a lease be made of any such thing for life or years with a remainder over in fee simple fee taile or for life it is good albeit the same be done by word without any deed in writing Such things as are said to lie in grant and not in livery generally Co. super Litt. 49. Dier 139. Perk. Sect. 61. 60. 63. Bro. Grant 59. cannot be granted or given had or taken without deed unlesse it be in some speciall cases And therefore rents and services and such like things which are in grosse and not incident to some other thing may not be granted without a deed And therefore if a rent-charge be granted unto me for years I may not grant this rent over without deed And if there be Lord and tenant of errable land by fealty and the service of yeelding the tenth sheaf of corn before it be sowed the Lord cannot grant this service for years without deed But if a rent or any service be parcell of or incident to a manor or any other thing which is grantable without deed in this case by the grant of the principall by word this thing may passe as belonging thereunto without any deed Also rents or services may be granted upon a partition by one coparcenor to another without deed A reversion cannot be granted in fee simple fee tail for life or Perk. Sect. 61. Dier 174 Plow 433. Bro. Grant 104. years without deed unlesse it be in casewhere it is parcell of a manor Reversion or Remainder But a reversion may be granted upon a partition by one coparcenor to another without any deed And the same law is of a remainder And therefore if one make a lease for life or years to one the remainder in fee simple fee taile or for life to another without deed howsoever this be a good remainder in the first creation without deed yet this remainder cannot be granted over without deed A Parsonage or Rectory albeit it consist of nothing but Tithes 15 H. 7. 8. 16 H. 7. 3. 19 H. 8. 12. 21 H. 6. 43. Advowson Tithes c. and the like besides the Church and Church-yard and it hath no house nor glebe belonging to it yet may be granted without deed in fee simple for life or years and then the tithes and offerings will passe as incident But the tithes alone or a portion of tithes oblations mortuaries or obventions are not grantable by themselves without deed And therefore a lease paroll of tithes albeit All this was agreed 36 El. B. R. it be but for years is not
good And if the Parson agree with one of his Parishioners that he shall have his own tithes this is not a good grant of the tithes neither may it be pleaded or used so but perhaps by way of agreement a Parishioner may retain his tithes And if a lessee for years of tithes will grant it over to another at will only it cannot be done without deed as was held by Baron Denham 2 Car. at Sarum Assises And yet it is held that a Parson Mich. 8 Jac. Dr. Longworths case may grant his tithes from year to year to him that is to pay them without any deed but this is by way of retainer But this grant or agreement must be made to and with the party himself that is to pay the tithe and not with another neither can this interest bee assigned or a stranger take advantage of it as hath been agreed in the case of Hawkes and Brafield Pasch 3 Jac. B. R. An Advowson in grosse cannot be granted without deed yea 21 Ed. 3. 38. 11 H. 4. 3. Dier 29. 10. Co. 1. 1. the grantee of the grantee of an Advowson is to shew both the deeds But an Advowson is grantable upon a partition between coparcenors without deed And an Advowson incident to a manor or peece of land is grantable with the manor or land without any deed The next avoidance to a Church is not grantable without Plow 150. 9 Ed. 4. 47. deed Common of Pasture of estovers turbary fishing c. cannot be Perk. Sect. 61. granted in fee simple fee tail for life or years unlesse it be in case Common of pasture c. of partition or of appendancy as incident to some corporall thing without deed And therefore if a man grant by word of mouth to me Common for twenty beasts in his manor this is not good Neither if it be granted to me by deed may I grant this over to another without deed But if a man have Common of pasture appendant or appurtenant to his land in this case he may grant his land with the Common appendant by word only without any deed Franchises as Fairs Markets Courts Warrens and the like Franchises and such like things 15 H. 7. 8. or the profits thereof are not grantable without deed But it seems a Hundred is grantable without deed for that is liberum tenementum The profits of a Mill County Ferry Corody or the like are not grantable without deed Things in action as a right or title of action that doth only depend 6 H. 7. 9. Dier 91. 126. Doct. St. 16. in action and things of that nature as rights and titles of Things in action and such like things entrie to any reall or personall thing are not grantable at all but by way of release to the tenant of the land c. by which means it may be extinguished but this may not be neither without deed And therefore if a man take my goods as a trespassor or I deliver him my goods to keep and after I will give these goods to him I cannot doe this without deed An election condition covenant assent licence or liberty Dier 281. cannot be created and annexed to an estate of inheritance or free-hold without deed A priviledge to hold land for life without impeachment of wast Offices Co. 9. 9. is not grantable without deed Offices for the most part are not grantable without deed And yet some inferiour offices as Stewardships Bailiwicks and the like are for such officers a Lord of a Manor may retain by word without deed Most chattels reall and personall may be given and granted without Perk. Sect. 57. 60. Bro. Done i. Dier 370. 5 H. 7. 35 36. Plow 150. deed And therefore if a man by word of mouth grant give or Chattels sell me his lease for years the wardship of body and land or the wardship of land that he hath by reason of a tenure by Knights service or by grant from the King or grant or sell mee the trees standing upon his ground the corn growing upon his land his horse sword plate or other houshold stuffe this is a good grant or gift But the wardship of the body of an heir only cannot be granted without deed So a next presentation cannot be granted without deed If one grant his reversion of land to one and by the same deed What by the same deed Plow 540. granteth a rent out of the same land to another and delivereth the deed to both of them at one time this is good and shall enure first as a grant of the rent to one and then as a grant of the reversion to the other If one convey land to another and the grantee by the same Dier 6. deed doth grant a rent or common to the grantor out of the same land conveyed this is as good as if it were by another deed Dedi Concessi be the most apt words for all kind of grants yet Co. super Litt. By what words of grant it may be by other words and the grant as good as by those words The best way in grants is to grant by words of present time in 35 H. 6. 11. the present tense as well as in the preterperfect tense But a grant by words of the preterperfect tense only as by Dedi concessi only without words of the present tense is good Touching this part two things are requisite 1. That the grantor 2. In respect of the person of the grantor c. and the naming of him And who may be a grantor And how See Feoffement ca. 9. Numb 4. be a person able 2. That if the grant be by deed that he be sufficiently described and set forth either by his proper names or else by some other matter of distinction Note therefore that whosoever Perk. Sect. 3. may be a feoffor may be a grantor And any natural politique or corporate body not prohibited by law as Monke Frier woman covert infant and such like may be a grantor donor c. And the grants of such persons will be good An alien may and is able to grant or give any thing that he is Alien capable of to have or take by grant or gift A person attainted of treason or felony may give or grant his land Perk. Sect. 26. See ch 2. Numb 6. Person attaint or outlawed and this is good against all others besides the King and the Lord of whom his land is held And he may grant or give his goods to relieve himself in prison and this will be good against all others and the King and Lord also A person outlawed in a personall action may give or grant his goods or chattels and the gift or grant will be good against all others but the King The Queen may without the agreement of the King make grants Co. super Litt. 3. Per. Sect. 8.
the like are grantable over in fee simple for life or years and therefore rents or services reserved upon any estate and rents granted out of lands are grantable over in infinitum And if a man have a rent reserved on a particular estate he may grant over parcell of it But a rent or Service suspended cannot be granted Neither can a man grant a rent issuing out of a rent If a rent be granted to me I may grant it over to a stranger before I be seised of it and this grant is void But an Annuity it seemes is not grantable over after the first creation of it And yet if an Annuity be granted to I S and his assignes pro consilio it seemes this Annuity is grantable over Advowsons are grantable in fee simple for life Stat. 32. H. 8 cap. 7. Perk. Sect. 90. Advowsons c. or years from man to man in infinitum Also the presentation to a Church before the Church is void is grantable but when the Church is void that Turne is not grantable for it is then in the nature of a thing in action Also Rectories and tithes and portions of tithes and pensions are grantable from man to man in infinitum Reversions and Remainders are grantable from man to man in fee Perk. Sect. 73. 88. 87. simple fee tail for life or years And if I have a tenant for life of three Reversions and Remainders houses I may grant the reversion of two of them And if I have the reversion of three houses four acres of land I may grant the reversion of two houses of two acres of land And if tenant in taile be of an acre of land the remainder to his right heires he may grant over this remainder by it selfe and yet it is such a thing as the tenant in taile himselfe may barre by a common recovery But if a grant be of land to I S for years the remainder to the right heires I D I D is living this remainder is not grantable so long as I D doth live Commons of pasture of turbary of fishing of estovers are grantable Perk. Sect. 103. Common in fee for life or years from man to man in infinitum * Per 2. Judges against one Hil. 16 Jac. B. R. And yet if a common in grosse and without number be granted to a man and his heires it seemes this is not grantable over to another man But if common for a certaine number of beasts be so granted it seemes the law is otherwise and that this is grantable over in case where the first grant is to the grantee only and not the grantee and his assignes Offices are grantable at first but the great Judiciall offices of Offices Perk. Sect. 101. the kingdome as the offices of the Lord Keeper Chiefe Justices or Chiefe Baron or of other of the Justices or Barons and such like are not grantable over to others neither may they be executed by deputies But the Sheriffes office albeit it be not grantable over yet may it be executed by deputy * Per Lord Keeper 2. Chiefe Just M. 5 Car. in cancellaria The reversion of an office is Prerogative not grantable by a Subject as it is by the King yet a Subject may grant an office Habendum after the death of the present officer and this is good †Co. super Lit. 233. Perk. Sect. 101. The inferior offices also that are offices of trust especially if they concern the person of the grantor howsoever they are grantable at first yet are they not grantable over by the officer to any other unlesse they be granted to them and their assignes and of this sort are the offices of Steward Bailife Receiver Sewer Chamberlaine Carver and the like neither may these be executed by deputy but where the grant is so Licences and authorities are grantable at first for the lives of the Licences Authorities c. 12 E. 7. 25. 13 H 7. 13. parties or for years But the grantees of them cannot assigne them over And therefore if power be given to me to make an award or livery of seisin I may not grant over this power to another And if licence be granted me to walke in another mans garden or to goe through another mans ground I may not give or grant this to another A bare possibility of an interest which is incertaine is not grantable Co. 4. 66. 5. 24. Dier 244. Co 10. 51. And therefore if one have a terme of years in land and by Possibilities his will devise it to I S for his life and afterwards to me for the residue of the yeares or devise it to I S if he live so long as the terme shall last and if he die before the terme end the remainder to me in these cases so long as I S doth live I cannot grant over this possibility So if a lease be made to me and my wife for life the remainder to the survivour of us I may not grant this remainder over to another man But such a possibility being coupled with some present interest is grantable over And therefore if A have foure houses in execution upon a Statute and by course of time it will endure thirteene years and after two of the houses are evicted by Elegit for fifteen years in this case he that hath this execution upon the Statute may assigne over his interest in these two houses for after the execution by the Elegit is satisfied A shall have the two houses againe untill he be satisfied The Lord cannot grant the Perk. Sect. 90. wardship of the heire of his tenant whiles the tenant is living Those things that are inseparably incident to others are not 1 E. 4. 10 grantable without the thing to which they are so incident and belonging Incidents And therefore a Court Baron which is evermore incident Perk. Sect. 104. 5 H. 7. 7. to a Manor is not grantable without the Manor it selfe common appendant to land is not grantable without the land it self to which it doth belong and common of estovers appendant to a house is not grantable without the house it selfe to which it doth belong A rent service or other thing whiles it is wholly in suspense is Suspended things not grantable And therefore if the Lord disseise the tenant or 16 H. 7. 4. Co. super Lit. 314. Bro. Grant 173. Perk. Sect. 88 89. the tenant enfeoffe the Lord upon condition the Lord cannot grant over the Seigniory during this suspension But if one have a rent in fee out of my land and he purchase the same land for life or years in this case it seemes the rent is grantable even whiles the estate of the land doth continue So if the tenant make a lease for yeares or life of the tenancy to the Lord in this case the Lord may grant the Seigniory notwithstanding And yet
if the tenant make a lease to another man for life and the Lord grant the Seigniory to this tenant for life in fee in this case it seemes the grantee of the seigniory cannot grant it over because it was never in esse Franchises as views of Frank pledge Perquisites of Courts Leets Conusance of Pleas Faires Markets goods of felons waifes estrayes Franchises Hundreds Ferries or Passages Warrens and the like are grantable over from man to man in fee for life or years in infinitum Things in action and things of that nature as causes of suit Co. 5. 24. 10. 48. Co. super Lit. 214. Dier 244. Perk. Sect. 86 87. 85 Bro. Done 27. 24. 48. Co. 6 50. Things in action rights and titles of entry are not grantable over to strangers but in speciall cases And therefore if a man have disseised me of my land or taken away my goods I may not grant over this land or these goods untill I have seisin of them againe Neither can I grant the Suit which the law doth give to me for my reliefe in the cases to another man So if I make a feoffment to another man on condition that if I doe such a thing I shall have the land againe in this case I may not before or after the time of performance of the condition grant over the condition to another But all these things I may release to the parties themselves for it is a maxime in law that every right title or interest in presenti or in futuro by the joint act of all them that may claime any such right title or interest may be barred or extinguished And in some cases a grantee of a reversion may take advantage of a condition annexed to an estate for See condition Co. super 232. Perk. Sect. 86. life or years If a man owe me money on an obligation or the like I cannot grant this debt to another but I may grant a letter of atturney to another man to sue for it and receive it or I may grant the writing it selfe to another and he may cancell it or give it to the obligor * Dier 283. A presentation to a Church after the Church is become void is not grantable for it is in the nature of a thing in action †Perk. Sect. 92. Fitz. Done 3. 7. And if a man take my goods from me or from another man in whose hands they are or I buy goods of another man and suffer them in his possession and a stranger taketh them from him it seemes in these cases I may give the goods to the trespassor because the property of them is still in me Trusts and confidences which are personall things for the most Personall things part are not grantable over to others And hence it is also that offices Perk. Sect. 99. Plow 379. of trust confidence are not grantable over but in some speciall cases where they are granted to a man and his assignes or where they are granted to a man and his heires And hence it is also that a Wardship by reason of a terme in socage which by the law is Plow 293. given to the next of kin is not grantable over to any other person by the Gardian in Socage Some things are so entire that they cannot be severed by grant Entire things Fitz. Grant 19. 76. And therefore if a man hold three acres of land of me by twelve pence rent and I grant the services of the third acre this is void and he shall have all or none for I cannot sever the tenure But if a man hold land of me by homage fealty escuage and a certain rent in this case I may grant the rent and keep the Seigniory A villaine is grantable for life or years and if the villaine during the estate of the grantee purchase land in fee the grantee shall have Villaines Perk. Sect. 94. it for ever as a Perquisite albeit he have but an estate for life in the villaine it selfe All chattells reall and personall regularly are grantable from man Chattells reall and personall to man in infinitum as leases for years be they present or future Dier 58. Plow 142. 147. Perk. Sect. 91. Dier 305. Perk. Sect. 90. wardships of tenants in Capite or by Knights service trees oxen horses plate housholdstuffe and the like Also trees grasse and corne growing and standing upon the ground fruit upon the trees wooll upon the sheeps backe is grantable If a man sell me ten load of wood in his wood to be taken by his Distresse assignment or sell me three acres of wood towards the north side of Co. 5. 24. the wood by this grant in these words I have such an interest as is grantable over If I make a lease by deed of a house to another and Fitz. Barre 280. therein it is agreed between us that if the rent be not paid me by such a time I shall enter into the house and take and sell the goods there as mine own to pay the rent it seems this is a good grant of the goods and that I may doe according to the agreement And if one that doth hold land of me grant to me by deed indented that I shal distraine for my service in all his land this is a good grant Fitz. Grant 6. A man may give or grant mony as if I deliver one mony on condition Money that if he assure me of such land he shall have it otherwise that Fitz. Done 11. he shall redeliver it to me again in this case if he make the assurance he shall have the mony if not I may have an accompt for it Such things as are ferae naturae as Conies Hares Deere and such Ferae natur◠Bro. Done 34. like are not grantable at all A Parson of a Church may grant his tithes for years and yet they Tithes Perk. Sect. 90. are not in him A man may give or grant his deeds i. the parchment paper wax Deeds to another at his pleasure and the grantee may keep or cancell them Co. super Lit. 232. Trin. 38 El. B. R. 25 H. 8. 5. 1 H. 7. Doves case And therefore if a man have an obligation he may give or grant it away and so sever the debt and it So tenant in fee simple may give or grant away the deeds of his land and the executor in the first case and the heire in the last case hath no remedy But a tenant in tail of land cannot give or grant any of the deeds belonging to the land intailed no more then the land it selfe One may give or grant Apparell apparell and it is said if one make apparell for another and put it 1 H. 4. 31. Fitz. Barre 179. upon him to use weare this is a gift or grant of the apparel it self If one grant to another all the
of totam illam Communiam suam c. some doe hold this grant to be good Any thing may be granted by the name whereby it is and hath Co. 6. 65. 45 E. 3. 6. Bro. grant 7. Perk. Sect. 116. been usually called of latter times within nine or tenne years or thereabouts albeit it be an improper name and not the ancient name of the thing but a name newly gotten And so a Manor may passe by the name of a mesuage or farme or a farme or Manor by the name of a mesuage if it be so usually called and reputed So the great houses in London called Exceter and Dorset houses may be granted by those names And if a man grant that which in deed is a pasture ground by the name of a wood Or granr that which in 14 H. 8. 1. 27 H. 6. 2. deed is a wood by the name of a pasture ground and the things are called by those names these are good grants of those things And if one grant by the name of a great field that which in deed is but a little close but it is usually called by the name of a great field this is a good grant of this thing So if one grant by the name of a plow land that which in truth is but an acre of land or grant by the name of a Manor that which is but a plow land these grants are good And so as it seemes it is è converso But if a man grant a house or a mesuage by this grant an acre of land will not passe By the grant of services a rent reserved upon an estate taile Co. super Lit. 150. Mic. 7 Jac. Curia B. R. will passe If a man make a lease of one house to another for years and the lessee divide it and make two houses of it and after the lessor doth grant the reversion of it by the name of one house this is a good grant to passe it And if one lease three houses to three severall men at severall times and they divide them into twenty nine tenements and housholds in them all and the first lessor doth grant them by the name of three mesuages this is a good grant to passe them all But if he grant by the name of fifteene mesuages or tenements only it seemes this is good for no more but for fifteene of the subdivided tenements If one recite that he hath a rent charge issuing out of blacke acre Perk. Sect. 72. and white acre and then grant the same rent and in truth it doth issue out of blacke acre only or if he doe recite that it doth issue out of one acre when in truth it doth issue out of both in both these cases the grant is good notwithstanding these mistakes If one be Patron of the Church of S. Peter and Paul in D and Bro. Grant 12. he grant the next Presentation of the Church of S. Peter or of the Church of S. Paul these are void grants to passe the Presentation * Perk. Sect. 79. Per Ch. Justice Hutton Yelverton Co. B. Mic. 3. Car. in the case of Edward Crew If one grant a rent out of white acre by the name of a rent out of blacke acre this grant is void as to charge white acre If one have a Manor called Steeple Lavington and he grant it by the name of west Lavington alias Steeple Lavington by the alias especially if the grant say lying in Lavington and the Manor of Steeple Lavington doth lie in that parish and the grantor hath no other land there If one grant all his lands which he hath in D in this manner All my lands in D which I had of the grant of I S this is a Mic. 2 Jac. in Brownes case agreed good grant of all his lands in D albeit he had them not of the grant of I S but of the grant of another But if the words be all my lands which I had by the grant of I S in D in this case the grant is not good to cary any other lands in D but such as he had of the grant of I S. So if one grant in this manner all my Manor Plow 169. 395. And so was the opinion of Ch. Justice Popham 2 Jac. B. R. of Sale in Dale which I had by descent and in truth he had it not by descent but by purchase this is a good grant of the Manor So if one grant all his lands in Dale and say no more this is a good grant to passe all his lands there But if one grant in this manner all my lands in Dale which I had by descent from my father and in truth I had them not by descent but by purchase this grant is void and will not passe those lands So if I grant in this manner Dier 87. all my lands that I had by the attainder of I S and in truth I had no land by that meanes this grant is void And if I grant after this manner all my lands in B in the tenure of D which I had of the gift of I S and in truth it doth lie in B and is in the Mic. 2 Jac. Adjudge Brownes case tenure of D but it was not purchased of I S this is a good grant to passe the land If a parish lie in two Counties viz. Berk. and Wilts and one Dier 299. Co. 3. 10. grant in this manner all his close called Callis in the parish of Hurst in the county of Berk. and in truth the close doth lie in the county of Wilts this is a good grant to passe the close But if one grant in this manner All his houses in the parish of S. Buttolphes extra Algate late in the tenure of R where in truth he hath no houses there but he hath some houses in S. Buttolphes extra Aldersgate this is a void grant And yet if the grant be in this manner All that my house in the occupation of I S in S. Andrews parish whereas in truth it is in the parish of K. but in the occupation of I S it seemes this grant is good to passe the house But if it be thus All that my house in S. Andrews parish in Holborne in the occupation of I S and in truth it is in another parish but in his occupation this grant is not good to passe the house If one grant in this manner my Manor of Dale which appeareth by office found to be of the value of tenne pound per Annum and Hil. 2 Jac. B. R. per Tanfield in truth in the office it is found at twenty pound per Annum this grant is good notwithstanding this misprision If one grant in this manner all my Manor of W late parcell of Pase 7 Jac. B. R. Co. 2. 32. the possession of the Abbot of S and late in the possession of K and in truth it was never in the possession of K this grant
with the Fitz. Grant 68. Perk. Sect. 68. reversion of all his tenants or by the name of the reversion of all his tenants bond and free which hold for life or years and doe not name them by their particular names these grants are good in these cases and certaine enough If one grant land and say not in what parish or county or village Bro. Grant 53. Co. 9. 47. it doth lie yet if there be any other matter to describe it it seems the grant is good enough and it may be averred where it lieth But if there be no circumstantiall matter in the grant to denote and decipher out where it doth lie it seemes the grant is void for incertainty And therefore if one grant his Manor of Dale or his lands in the occupation of I S or his lands that descended to I S or his lands that did belong to the priory of S or the like these are good grants and certaine enough Id certum est quod certum reddi potest If there be tenant for life of three houses and foure acres of land Perk. Sect. 73. and he in reversion grant the reversion of two houses and of two acres of this land this is a good grant and hath sufficient certainty in it If a grant be incertain altogether and have not sufficient certainty Perk. Sect. 67. in it cannot be made certain by some mater ex post facto it is void And therefore if there be Lord and tenant of three acres of land by fealty and twelve pence rent and the Lord grant the services of the third acre to a stranger this grant is meerly void So if Perk. Sect. 68 69. husband and wife hold an acre of land jointly of I S for their lives and I S grant the reversion of the acre of land which the husband alone doth hold for his life this grant is void So if there be Lord and three Jointenants and the Lord grant the services of one of them to a stranger this grant is void So if one have twenty tenants 9 H. 6. 12. that doe pay him twelve pence a peece rent and he grant five shillings yearly out of these rents and doth not say of which tenants this grant is void for incertainty So if conusance of pleas 44 E. 3. 17. Bro. Grant 52. be granted and it is not said before whom this is utterly void So if one have two tenants and doth grant the reversion of one of them and doth not say which this is void for incertainty So if Dier 91. one grant estovers to another and say not what nor how this is void So if one grant me so many of his trees or of his horses as may be reasonably spared this grant is void And yet if one grant me so many of his trees as I S shall thinke fit it seemes this grant is good And if one grant me one hundred load of wood to be taken Co. 5. 24. by the assignement of the grantor or to be taken by the assignment of I S these are good grants So if one grant me three acres of wood toward the North side of the wood this is a good grant and certaine enough If one grant to one of the children of I S and I S hath more Bro. Done 31. then one and he doth not describe which he doth intend this grant is void for incertainty If one grant to me a rent or a robe twenty shillings or forty shillings or common of pasture or rent in the disjunctive which 9 E. 4. 36. Perk. Sect. 74. is at first very incertaine yet this grant may become good for if I make my election or he pay the rent or performe the grant in either part the grant is now become good So if one be seised of Perk. Sect. 76. two acres of land and he doth lease them for life the remainder of one of them and doth not say of which to I S in this case if I S make his election which acre he will have the grant of the remainder to him will be good So it is when a man hath six horses in his stable and he doth grant me one of his horses but doth not say which of them in this case I may choose which I will have and in these cases when I have made my election and not before the grant is good And if in these cases the grantee doe not make his election during his life it seemes the grant will never be good If one be seised Bro. Grant 77. of land and lease it for yeares rendring tenne shillings rent and after he doth grant a rent of tenne shillings out of this land to a stranger in this case albeit there be some incetainty in the grant yet this is a good grant of a rent of tenne shillings but it shall be taken a grant of a new and not of the old rent and therefore shall not take effect untill the particular estate be ended See more to this point in Deeds and their Exposition chap. 5. Numb 15. and Fine chap. 2. Numb 7. In some cases albeit there be in a Grant a good grantor and a 5. In respect of matter in some other parts of the Grant 1. In the commencement of the estate good grantee and a thing granted and all these are duly and certainly described yet the grant may be void for some fault in some other thing touching the grant as 1. In the commencement of the estate For if a man be possessed of a terme of yeares albeit it Bro. Grant 154. Co. 1. 155. Plow 520. be one hundred yeares or upwards and grant to another all the residue of this terme of years that shall be to come at the time of his death this grant is void for incertainty And yet if a man possessed of such a terme in land grant the land to another To have and to hold to him after the death of the grantor for fifty yeares or for two hundred years these are good grants and in the first case the grantee shall have fifty yeares if there be so many to come of the terme of one hundred years at the death of the grantor and in the last case the grantee shall have the land for the whole one hundred years or so many of them as are to come at the death of the grantor So if one grant any thing that doth lie in livery or in grant and that is in esse at the time of the grant in fee simple fee taile or for Dier 58. Co. 5. 1. life and the estate is to begin at a day to come this for the most is void howbeit in some cases the livery of seisin will helpe it But Incertainty Pase 7 Jac. Deâ—â—s case a lease for years to begin in futuro is good enough And if a lease be made to one for yeares or for yeares determinable upon lives and after a lease
is made to another of the same thing To have to hold from the end of the former lease this is a good lease the commencement certaine enough So if a lease be made of land to one for life and after the reversion thereof is granted to another for life cum post mortem vel alio modo vacare contigerit this is good So if a lease be made to one for twenty years if he live so long and Craddocks case Pasc 7 Jac. Co. B. after a lease is made to another Habendum after the end of the term granted to the lessee for twenty yeares to be accompted from the date of the deed last made this is a good grant for 20. years after the first lease ended and the words to be accompted c. shall be rejected And if one grant a rent to me Habendum from the time of Co. 9. my full age for my life and I am of full age at the time of the grant this grant is good for my life If a woman sole have a lease for years Plow 192. Co. 6. 36. and take a husband and then he in reversion grant the land to another Habendum after the terme granted to the husband c. where in truth it was never granted to the husband but by an act of law viz. the mariage yet this is a good lease 2. In the limitation 2. In the limitation of the estate Or in the Habendum of the Grant 22 H. 6. 15. Plow 28. of the estate For if a grant be to two heredibus without Suis this is void for incertainty And yet a grant to one heredibus is good And if a man grant two acres To have and to Perk. Sect. 75. 77. Plow 152. hold the one in fee simple the other in fee taile or the one in fee simple and the other for life and doth not set downe which in fee simple c. in certaine yet this grant is good and the grantee hath the election And yet if one grant two acres to two men Habendum Incertainty the one to the one and the other to the other and say not which either of them shall have this is void for incertainty And if one have a reversion of land after a lease for yeares and grant the land Co. 10. 107. Plow 147. Habendum the reversion or grant the reversion Habendum the land this is good In some cases a grant or gift may be void at least to some persons and purposes when there are none of the defects aforesaid in it as 6. In respect of the end or ground of the Grant when it is made upon a corrupt contract or to the end to defraud creditors of their debts or purchasors of their lands bought or the like whereof see before in Deed chap. 4. Numb 5. And in some cases albeit there be no other fault in the grant yet 21 H. 7. 5. Co. super Lit. 7. In respect of omission of some ceremony c. it may become void for want of some other matter that ought to be done as inrolment livery of seisin atturnement c. for where these things are requisite the grant is not good untill it be had neither for that thing which will not passe without that ceremony nor yet for that which otherwise would passe by the deed And therefore if a feoffment be made of a Manor to which an Advowson is appendant and no livery is made so that the Manor doth not passe the Advowson will not passe neither Where a grant may be void by the refusall or waiver of the grantee See before in Deed Num. 6. chap. 4. If one make a feoffement with warranty and after the feoffee 7H 6. 43. 21 H. 7. 23. Perk. Sect. 69. Bro. Grant 175. Kelw. 88. doth grant to the feoffor that neither he nor his heires shall vouch 5. What shall bee said a good grant in the nature of a release or discharge Or not the warrantor or his heirs upon the warranty this is a good discharge of the benefit of voucher and doth bar the feoffee of it And yet he may bring a Warrantia Cartae still So if one grant to mee a rent-charge and afterwards I grant to him that he shall not be sued for this rent this is a good grant to bar me of bringing an annuity for the rent And yet I may distrain for the rent still And so è converso if I grant to the grantor he shall not be distrained for the rent by this I am barred of a distresse but not of bringing an annuity for the rent So if the Lord doth grant to his tenant holding by knights service that his heirs shall not be in ward c. or a man doth grant to his debtor that he will not sue him for the debt at all or until such a time or one grant to his lessee for life or years that he shall not be impeached for wast all these are good discharges and may be pleaded by way of bar to avoid circuity of action And now because Atturnment as hath been shewed is necessary in some cases to the perfection of some conveyances grants of things lie in grant and not in livery we must therefore here ere wee can goe further as a necessary appendix to Grant adde the learning of Atturnment which followeth next in order CHAP. XIII An Atturnment AN Atturnment is the agreement of the tenant to the grant of Co. super Litt. 309. Terms of the Law Plow 25. Litt. Sect. 551. the Seigniory or of a rent or the agreement of the donee 1. Quid. in tail or tenant for life or years to a grant of a reversion or of a remainder made to another As where the Lord or one that hath a rent out of land doth grant over his Seigniory or his rent to another or one that hath a reversion or a remainder after an estate for life or years doth sell or give the same away to another in these cases the tenant of the land must have notice of this sale or gift and of the alteration of the party to whom he must attend in his services and he must give his consent to the same gift or grant or else generally the same is not good And this yeelding of consent is called an Atturnment And it is either actuall or verball or actuall and verball both 2. Quotuplex That which is actuall is either implied and in Law or expressed and in Fait Of all which there are divers examples hereafter following The end effector fruit of this agreement is to perfect a grant and Lit. Sect. 551. Co. super Lit. 302. Lit. Bro. Sect. 267. 129. 379 39 H 6. 24. Co. super Lit. 323. 315. Lit. Sect. 608. 3. The effect of it to make a good conveyance of an estate for where this is needfull no rent nor reversion will passe without it neither can
the grantee of the Seigniory rent or reversion bring any action of wast for wast done in the land nor distraine for any rent or service upon the land before this is done But this is but a bare assent and therefore it shall not nor will enure or worke to passe any interest to make a bad grant good to enfranchise a villaine nor to give a man a tenancy by disseisin intrusion or abatement neither shall it worke by way of estoppell And therefore if a man gaine a rent issuing out of land by cohersion of distresse or otherwise and the tenant of the land atturne to him this will not amend his estate But otherwise a grant and the atturnement of the tenant doe as effectually passe the freehold and inheritance of the reversion of land as a feoffment and livery of seisin of land doth passe the possession of land In most cases where the grantee hath meanes to compell the tenant to atturne there the atturnement of the tenant is at least to Lit. Sect. 579 580 581. Co. 6. 68. Co. super Lit. 309. 314. 320. 4. Where and in what cases the atturnment of the tenant is necessary Or not And how And to what intents some purposes needfull for howsoever it be true that if a seigniory rent services reversion or remainder be granted by fine in this case the rent seigniory c. doth passe so as the grantee may enter for a forfeiture upon the alienation of the tenant being tenant for life years by statute or elegit or upon an escheate of the tenant or seise a ward or heriot if it happen before any atturnment be made And if the reversion of a lease for years be granted by fine and the lessee be ousted and the lessor disseised the conusee may have an assise and therefore as to all these purposes the atturnment of the tenant is not needfull But the grantee his heire or assignee cannot distraine the tenant for rent or bring any action that doth lie in privity between him and the tenant as wast upon a wast done by the tenant writ of entry ad communem legem or in casu proviso or in consimili casu upon the alienation of the tenant escheate upon the dying of the tenant without heirs or ward upon the death of the tenant his heire within age or writ of customes and services untill he have the atturnement of the tenant and therefore as to all these purposes the atturnement of the tenant is necessary And hence it is that the conusee of a fine hath meanes appointed him by the law to compell the tenant to atturne for in case where the Lord doth grant his seigniory to another and the tenant will not atturn the conusee before the fine be ingrossed may have a writ called a Per que servitla and thereby compell him to atturne And in case Old N. B. 170. Co. super Lit. 252. where a man doth grant a rent to another and the tenant of the Per que servitia land out of which the rent doth issue will not atturne the conusee of the rent may have a writ called a Quem redditum reddit and thereby compell him to atturne And in case where a man doth I dem Quem redditum reddit grant a reversion or a remainder of his tenant for life to another and the tenant will not atturne the conusee of the reversion or remainder may have a writ called a Quid Juris clamat and thereby Idem Co. super Lit. 310. compell the tenant for life to atturne * Co. super Lit. 321. And if the conusee of the Quid Iuris clamat fine die in these cases before he have the atturnment of the tenant his heire albeit he come to the thing descended by act of law yet shall be in no better case then his auncestor was And if the conusee Co. 6. 68. Lit. Sect. 584. 583. of a fine by which he hath a reversion granted to him before he hath gotten the atturnment of the tenant bargaine and sell the reversion by deed indented and inrolled the bargainee shall be in no better case then the bargainor was And if a reversion be granted by fine and the conusee before atturnement enter and make a feoffment and the lessee reenter in this case the feoffee cannot distraine for the rent And yet if there be Lord mesne and tenant and the mesne grant the services of his tenant by fine to another in fee and after the grantee die without heire and by this meanes the services of the mesne escheate in this case the Lord may distraine for them without any atturnement of the tenant In these following cases atturnement in law or in deed is absolutely and to all intents necessary viz. a a Co. 2. 66. Lit. Sect. 551. 567. 571. Co. super Lit. 316. Where one doth make a lease for life or years to one and after doth grant the reversion or remainder after the same lease ended to another by deed in fee simple fee taile for life or years in this case the lessee for life or yeares must atturne b Lit. Sect. 551. Co. super Lit. 315. Perk. Sect. 636. So where the Lord doth grant his seigniory or the services of his tenant by deed in fee simple or otherwise in fee taile for life or years to a stranger in this case the tenant must atturne c Co. 6 68. Doct. Stud. 35. Lit. Sect. 553. So where the Lord of a Manor doth make a feoffment of his Manor in this case the services of the tenants will not passe without their atturnement d Co super Lit. 312. Lit. Sect. 572. So if another man have a rent service rent charge or rent seck issuing out of my land and he doth grant this rent to a stranger in this case I must atturn to this grant to the stranger And if in these cases the tenant doe not atturn the grant of the reversion c. is meerly void If a reversion bee granted after an estate of a tenant by Statute Co. super Lit. 315. Merchant Staple or Elegit or after an estate that any one hath untill debts be paid or the like in these cases these tenants must atturn or this grant will not be good If one make a lease for years of land rendring rent and after hee Co. 2. 35. Lit. Bro. Sect. 298. Dier 307. Co. super Lit. 312. Lit. Bro. Sect. 151. 379. Bro. Attur 59. Dier 26. Lit. Bro. 349. doth grant the reversion to another for years to begin after the death of the grantor in this case it is needfull that the lessee for years in possession doe atturn to make this grant good But if one make a lease of his land to one for tenne years and after make a lease of it to another To have and to hold from the end of the said terme of tenne years for the terme
of twenty years in this case it seemes it is not needfull that the first lessee doe atturne but that the grant is good enough without it If one make a lease to another for twenty years and he make a lease over to a third for ten years rendring a rent and then doth grant the reversion to a stranger in this case it is needfull that the lessee for tenne years doe atturne but if the lease for tenne years be made without any reservation of rent contra For it is a rule That where there is no tenure attendancy remainder rent or service to be paid or done there atturnment is not necessary And hence it is that where one doth grant common of pasture appendant or appurtenant or estovers out of land that there needes no atturnment of the tenant to make this grant good And if a rent or common be granted to one for life and after the reversion of it be granted to another that in this case there need no atturnment to make this second grant good * And so it was agreed in M. 37. 38 Eliz. B. R. And if one make a lease to one for tenne years and then make a lease to another for twenty years in this case the second lease is good for the ten years to come after the first ten years ended without any atturnment of the first lessee If a Lord exchange the services of his tenant with another for Perk. Sect. 249. 259. land in this case the atturnment of the tenant by whom the service is to be done is necessary to perfect this Exchange If there be Lord and tenant in fee simple and the tenant doth Lit. Sect. 562. make a lease to another man of the tenancy for life and the Lord doth grant the Seigniory to the tenant for life in fee in this case the tenant in reversion must atturne to the tenant for life upon this grant of the reversion or the grant is not good If I be seised of a reversion after an estate for years and I grant Hil. 8 Jac. it to the use of my selfe for life and after to the use of another and his heirs in fee and after I grant my reversion for life to another in this case it is needfull that the tenant for yeares atturn to this grant If a lease be made to I S for his life and afterwards another Dier 118. lease is made of the same land to I D for his life in this case it seems that I S must atturn to this second grant or that the grant will not be good An estate of a Seigniory cannot be gained by a disseisin abatement Lit. Sect. 587. or intrusion without an atturnment And therefore if one disseise another of a Manor which is part in demesne and part in services the services are not gained untill the tenants atturn In all cases for the most part where there is no means provided Co. 6. 68. Lit. Sect. 580. 583. 586. Co. super Lit. 321. 314. by law to compell the tenant to atturn there their atturnment in law or in deed is not necessary unlesse there be some speciall default in the grantee Quod remedio destituitur ipsa re valet si culpa absit And therefore an atturnment is not necessary in these cases following viz. c F. N. B. 121. M. Where one doth grant a rent reversion remainder service or seigniory to another by way of devise by a last will and testament or by Letters Patents from the King or where such things are granted by matter of record from a subject to the King f Co 6. 68. super Lit. 321. 2. 35. So when the thing granted doth passe by way of use and doth vest by force of the statute of uses As if one that is seised of land in fee doth make a lease of it for life or yeares to I S and after levieth a fine or doth covenant to stand seised of the reversion of this land or of the land it selfe which is all one to the use of another or doth bargaine and sell the reversion in fee or for yeares in these cases the tenant need not to atturne †Agreed in the Court of Wards Hil. 18 Jac. But if A grant a reversion to B to the use of C and the deed is not inrolled or the use arise not upon consideration of bloud c. in this case if the tenant doe not atturne the reversion will not passe g Calvins case Pasch 7 Jac. B. R. If one by a common recovery suffered grant a reversion to the use of himselfe his wife or children in this case there needsno atturnment of the tenant by the Statute of 7 H. 8. chap. 4. h Lit. Sect. 583. 5 H. 7. 18 19 Co. super Lit. 321. So where one doth come to any such thing by title or seigniory paramount as by escheate surrender or forfeiture or by descent in all these cases and the rest before the atturnment of the tenant is to no purpose neither to passe the thing as to the estate nor to make a privity to distraine or bring action of debt And therefore if there be Lord mesne and tenant and the mesne grant the services of his tenant by fine to another in fee and after the grantee dieth without heire in this case the services of the mesnalty shall come to the Lord paramount and he may distraine for them or bring any action that lieth in privity for them without any atturnment So if lessee for life of a Manor surrender his estate to the lessor there needes no atturnment of the tenants of the Manor to make this estate to passe So if the reversion of a tenant for life be granted to another in fee and the grantee die without heire so that the reversion escheate in this case the Lord may distraine or bring any action of wast c. without any atturnment So if a reversion descend to an heire from his auncestor in this case it will vest in the heire without atturnment and atturnment in this case is not necessary So if the conusee Co. super Lit. 321. of a Statute Merchant extend a seigniory or rent for debt the seigniory or rent shall be vested in him without any atturnment of the tenant If a Copiholder in fee make a lease for yeares by licence of the Lord rendring rent and after surrender the reversion to the Per 3 Justi Trin. 4 Jac. B. R. use of I S in this case it seemes an atturnment of the tenant is not needfull but I S shall have the rent without any atturnment If one grant the reversion of Copihold lands for life or yeares Curia M. 37 38 Eliz. B. R. Co. 2. 35. super Lit. 311. or grant the seigniory of Copihold lands of inheritance in these cases there needs no atturnment of the tenants to make the grants good And so also is the law for an estate at will by
may bee made and this shall be sufficient to perfect the grant of the remainder to B. If I grant a reversion to one man and before the atturnment of Co 6. 68. 11 H. 7. 12. the tenant had to perfect the grant he doth sell this reversion to a third man in this case the tenant may atturn to the second grantee and this will make the grant good to him But if the atturnment be made to both the grantees it is void for incertainty An atturnment may as well be made to cestuy que use of a reversion as to the grantee of the reversion himself And it seemes it Co. super Lit. 310. must be made to him and not to the grantee of the reversion For Hardings case it was agreed in the Court of Wards Hil. 18 Iac. That if a reversion be granted to B to the use of C that the atturnemnt must bee made to C and not to B who is but an instrument In all cases regularly where atturnment is necessary it must Co. 1. 151. super Lit. 310. Lit. Sect. 551. Perk. Sect. 263. 231. Co. super Lit. 315. 2. 35. 7. When and at what time the atturnment must be made be made in the life time of the parties Grantor and Grantee or Exchangor or Exchangee for if either of them die before the atturnment be made the grant or exchange is void And therefore if a Manor be granted and livery of seisin be given upon the demesnes thereof and one of the tenants die before atturnment be made by him his tenement will not passe and the grant as to that part will be void for in this case all the tenants but tenants at will must atturne And albeit the grant of the reversion be to begin at a day to come and after the death of either of the parties yet must the atturnment be made in the life time of the parties or otherwise the grant will not be good And yet an atturnment may be made after the death of the tenant by his heire and after the Conveyance of the tenant by his assignee If a lease be made of a reversion to beginne at a day to come Co. 2. 35. in this case the atturnment may be made before or after the day so it be made in the life time of the parties If one grant his reversion of white acre or black acre and Co. super Lit. 310. the tenant atturne to the grant before the grantee have made his election which acre he will have this is a good atturnment If a man grant his reversion by deed to one and after and before the tenant doe atturne he levy a fine or make a feoffment Co. super Lit. 309. 310. 8. 82. 4. 61. Kelw. 163. of the land to another in this case it seemes the atturnment after comes too late but if the fine or feoffement be but of part of the land granted before in reversion in this case the first grant after atturnment shall bee good for the residue And if a woman sole grant a reversion and after the before atturnemnt shee mary with a stranger and after the tenant atturne in this case the atturnment comes too late for the mariage is a countermand of it And if a reversion of an estate for life or yeares be granted and the grantor before atturnment doth confirme the estate of the tenant for life or yeares and so change the estate and after the tenant atturne in this case the atturnment comes too late To the making of a good atturnment where it is needfull divers 8. The manner of making an atturnment And what shall be said a good atturnment Or not Co. super Lit. 309 310. 315. Lit. Sect. 551. Plow 344. things are required 1. It must be made by the person that ought to make it 2. It must be made to the person that ought to take it 3. It must be made in time convenient 4. If it be an expresse atturnment the tenant must first have notice of the grant of the reversion rent c. to which he must atturne but otherwise it is of an atturnment in law for there notice in all cases is not necessary 5. And it must be done in that manner the law doth prescribe Notice And for this it is to be knowne that it may be made by words or by deeds and without any writing or by deed or writing and this is the safest way to doe it And any words written or spoken by the tenant that doe import an assent and agreement to the grant of the reversion rent c. in such manner as the same is made after notice given to him of the grant whether it be in the presence or the absence of the grantee of the reversion rent c. will make a good atturnment in deed And therefore if the tenant after knowledge of the grant use these words following or any others to the like effect to the grantee viz. I doe atturne or turne tenant to you according to the grant or I become your tenant or I agree to the grant or I am well content with the grant or God send you joy of it these are good expresse atturnments And if the tenant Lit. Sect. 563. 551. 513. Co. super Lit. 315. 49 E. 3. 15. after knowledge of the grant pay doe or deliver all or any part of the rent or service before or at the time when the same is due to the grantee or give a penny or farthing an oxe or a knife or any such like thing or any other valuable thing in the name of atturnment or in the name of seisin of the rent this is a good expresse atturnment and that atturnment which is made by words and deed or signe both is the best for that doth leave a more deep impression in the minde of the witnesses But if one have a rent charge issuing out of my land and he grant it to a stranger and I give him an oxe to put him in possession of the rent it seemes this is no good atturnment If a man grant his reversion of my living to I S and his Baylife M. 2 Car. in the Court of Wards Co. super Lit. 310. that doth use to gather his rents saith to me that I S hath bought it and I must hereafter pay my rent to him and I tell him I am glad of it this is a good atturnment And that albeit it be in the absence of I S. * Curia B. R. Hil. 11 Car. B. R. Hiltons case And it is not materiall whether the stranger know of the grant or not so the tenant know of it And an atturnment made to the Lords Steward in the Court in the absence of the Lord is a good atturnment For it is sufficient if the tenant have notice that he atturne to the grant in the presence of any whomsoever Tenant for life was the remainder in tail he in the remainder
granted his remainder the tenant for life having notice of the grant saith to a stranger in his absence That is the party I am well pleased that the grant is made to him it was adjudged to be good If a reversion be granted to one for life and after the same reversion Co. super Lit. 310. 11 H. 7. 12. be granted to him for yeares and the tenant atturne to both the grants at once this atturnement is void for incertainty So if one grant his seigniory to I S Bishop of London and his heires by one deed and grant the same to I S Bishop of London and his successors by another deed the tenant atturn to both grants at once this atturnment is void for incertainty So if a reversion be granted to two severall persons by severall deeds and the tenant atturne to both the grants at one time this atturnment is void for incertainty and neither of the grants are perfected by the atturnment in these cases The implied atturnment which also doth amount to an expresse atturnment is made divers manner of wayes For if the tenant after notice of the grant of the reversion pay his rent to the 14 H. 8. 15. 34 H. 6. 41. grantee or surrender his estate to the grantee or pray in aid of the grantee or accept a grant of the reversion or remainder from him that hath it this is a good atturnment in law But if the tenant Co. super Lit. 312. after the grant of the reversion not having notice of the grant pay his rent to the grantee as a receiver Bailife c. this is no good atturnment †Calvins case Adjudged Pase 7 Jac. B. R. Co. super Lit. 309. Co. 2. 67. Dier 302. And therefore if the Bailife of a Manor shall purchase the Manor or the reversion of one of the tenements and the tenant not knowing of this purchase pay his rent to him as he was wont to doe this is no good atturnment in law So if a man seised of a seigniory levie a fine of it and then taketh backe an estate in fee and the tenant having no notice of all this doth pay his rent to the conusor as he was wont to doe this is no good atturnment in law to perfect either of these grants If there be Lord and tenant and the tenant let the land to a woman Lit. Sect. 558. 560. c. for life the remainder in fee and the woman doth take a husband after the Lord doth grant the services to the husband in fee in this case this acceptance of the deed by him that ought to aturn is a good atturnment in law So if in this case the tenant lease to a man for life the remainder over and the Lord grant the services to the tenant for life and he accept thereof this is a good atturnemnt in law If the Lord by deed grant his seigniory to the tenant of the land Co. super Lit. 313. and to a stranger and the tenant doth accept of this deed this is a good atturnment in law to extinguish a moity and to vest the other moity in the other grantee So if one make a lease to I S for life and after confirme his estate the remainder over to I D and Co. super Lit. 313. Lit. Sect. 573. the lessee for life doth accept of the deed of this confirmation and grant this is a good atturnment in law and doth vest the remainder in I D. If there be Lord and tenant and the tenant take a wife and after the Lord doth grant the services to the wife and her heires and the Lit. Sect. 559. husband doth accept of the deed of this grant this is a good atturnment in law If the conusee of a fine of services sue a Scire facias to have execution Lit. Sect. 564. of the services and hath Judgment to recover this is a good atturnment in law If a woman grant a reversion to a man in fee and after mary Co. super Lit. 310. with the grantee this is a good atturnment in law to perfect this grant made to the husband If a Lord grant his seigniory there be twenty manner of services Lit. Sect. 563. and the tenant with what intent soever it be pay or performe in deed any parcell of the services to the grantee this is a good atturnment in law for all the services If I be seised of land in fee and make a lease for life or yeares of it or it be extended by a Statute or Elegit and then I make a feoffment Lit. Sect. 576 577. Co. super Lit. 319. Dier 212. Co. 6. 68. 5 113. of this land and give livery of seisin upon it and so put out the tenant and after the tenant or one of the tenants if there be many reenter this is a good atturnment in law And so also it seemes is the law if the lessee for life recover in an assise But if a man make a lease for life and then the lessor grant the reversion for life and the lessee atturne and after the lessor enter and make a feoffment in fee and so disseise the lessee for life and then the lessee reenter this is no good atturnment in law by the grantee for life And if the conusee of a reversion by fine disseise the lessee for life and make a feoffment in fee and the lessee reenter this is no good atturnment in law to the feoffee to enable him to distraine c. If one grant the reversion of a lease of a terme of yeares and before Hil. 8 Jac. any atturnment made the lessee for years doth grant his terme to the grantee of the reversion in this case this is no good atturnment in law to make the reversion to passe If one have land and a rent issuing out of other land both in one county and he grant both by deed and give livery of seisin of the Perk. Sect. 231. land in the name both of the land and of the rent this is no good atturnment in law to make the grant of the rent good If lessee for life or yeares subscribe his name as a witnesse to the So was it held in Bro. kenbury Martials case 5 Eliz. sealing and delivery of the grant of the reversion made by the lessor to a stranger this is no good atturnment in law for he may doe this and not have notice But if he have notice of the grant and then put his hand to it this is an atturnment Curia B. R. H. 11. Car. If a reversion be granted of two acres or for forty years or if Co. 2. 68. super Litt. 297. 314. 309. Lit. sect 564. Atturnement to part of the grant good for the whole services be granted and the tenant doth atturn for one acre or for part of the forty yeares or for part of the services this shall extend to all and is a
and the words whereby the same is set down And what words will make an estate for life or years for so long as it endureth as a lease for an hundred or a thousand years So a lease for half a year or a whole year is good So if Plow 422. a lease be made from day to day or from weeke to weeke for four years this is a good lease for four years Et sic de similibus So if Plow 272. Bro. Leases 49. one make a lease for ten years so from ten years to ten years during an hundred years or untill an hundred years are incurred this is a good lease for an hundred yeares So if one make a lease from Dier 24. three years to three years during the life of I S in this case if livery of seisin be not given this is a good lease for sixe years but if livery Livery of seisin be given it is a good lease for the life of I S. And if a lease be made from my death untill Anno Domini 1650 this is a good lease If I say to I S being in my house Here I S I demise to you my Co. 6. 26. Livery of seisin house and land so long as I live this is a good lease for life to him if livery of seisin be made Et sic de similibus If one make me a lease of land until an hundred pound be paid me 21 Ass pl. Livery of seisin make livery of seisin upon it this is a good lease for life determinable upon the payment of the hundred pound But if no livery be made it is no good lease If one make a lease to me for my life and for four ten or twenty Bro Leases 27. 51. Executors yeares after this is a good lease for life first if livery of seisin bee made and then a good lease for years for so many years as are agreed upon afterwards which my executors shall have And if no livery of seisin be made yet it seems it is a good lease for so many years after my death If an Indenture of lease be made between A of the one part and Co. 1. 153. Dier 253. B C and D of the other part and therein A doth demise land to B To have and to hold to him for eighty years if B shall live so long and if he die or alien the premisses within the term then that his estate shall cease and then the lessor doth grant the land to C for so many years of the said term as shall be then to come after the death or alienation of B if he live so long in this case this is a good lease to B for so many years as he shall live of the eighty years but the lease to C after is not good for the terme is ended by the death of B but if the words of the second demise be To have and to hold during the residue of the eighty years and not during the residue of the term in this case the second demise is good to C also If one make me a lease for sixty years if I live so long provided Co. 1. 155. Dier 150. 253. that if I die within the term that my executors shall have it during the residue of the sixty years in this case this is a good lease for the sixty years determinable upon my death but not a good lease for the residue of the sixty years after my death And yet it may amount to a good covenant for that time If A covenant to levy a fine to B and his heirs provided that if he Evans case Trin. 5. Jac. B. R. pay B and his heirs ten pound at the end of thirteen years that then Covenant the fine shall be to the use of A and his heirs and A doth covenant with B by the same deed that B his heirs executors and assignes shall quietly hold the premisses from Michaelmas next for thirteen years and yearly from thenceforth for every if the ten pound bee not paid according to the intent in this case this covenant doth not make a good lease for the thirteen years and it is but a covenant Covenant If one make a lease for a certain number of years and it is further Plow 272. Lit. Sect. agreed that upon some contingent the lessee shall have the see simple and livery of seisin is given hereupon in this case the lease for years doth continue good for the time agreed upon A lease for years cannot by the agreement of the parties be made Co. 2. 24. 10. 87. to the heirs of the lessee nor intailed to the heirs of his body And therefore if a lease be made to I S and his heires or to I S and the heirs male of his body yet the executors of I S and not his heirs Executors shall have it and the executors may sell the term If two agree by word that one of them shall have such a peece of Per Justice Jones at the Assises at Glouc. land for twenty years this is a good and perfect lease that is made by this agreement albeit they doe agree to have a writing made of it afterwards for in this case the writing is but the confirmation of it But if the agreement be that such a writing shall be made or that a lease shall be made of such a thing between them and put in writing so that the agreement hath reference to the writing and implieth an intent not to perfect the agreement till the writing be made in this case the lease is not a perfect lease untill the writing be made Albeit the most usuall and proper making of a Lease is by the Co. super Lit. 5. F. N. B. 270. e. Br. Leases 71 words Demise grant and to ferme let and with an Habendum for life or yeares yet a Lease may be made by other words for whatsoever word will amount to a Grant will amount to a Lease And therefore a Lease may be made by the word Give Betake or the like The word Locavit also is a good word And the use in the Exchequer is to make Leases by the word Committimus which is a good word to make a lease d Bro. Leases 60. And if A doe but grant and covenant with B that B shall enjoy such a peece of land for 20. yeares this is a good lease for twenty yeares e Mic. 9 Ja. B. R. Curia So if A promise to B to suffer him to enjoy such a peece of land for twenty years this is a good lease for twenty yeares f 5 H. 7. 1. So if A license B to enjoy such a peece of land for twenty yeares this is a good lease for twenty yeares And therefore it is the common course if a man make a feoffment in fee or other estate upon condition that if such Agreed by all the
Judges Mic. 20 Jac. et per Just Bridgman And 8 Car. B. R. a thing be or be not done at such a time that the feoffor c. shall reenter to the end that in this case the feoffor c. may have the land and continue in possession untill that time to make a Covenant that he shall hold and take the profits of the land untill that time and this Covenant in this case will make a good lease for that time if the incertainty of the time whereunto care must be had doe not make it void And therefore if A bargaine and sell his land to B on condition to reenter if he pay him an hundred pound and B doth covenant with A that he will not take the profits untill default of payment or that A shall take the profits untill Covenanâ— default of payment in this case howbeit this may be a good Covenant yet it is no good Lease And if the Mortgagee covenant with the Mortgagor that he will not take the profits of the land untill the day of payment of the money in this case albeit the time be certaine yet this is no good Lease but a Covenant onely If one give a Bond for the quiet holding of a Close for three yeares it seemes this is no lease in Law See the opinion of the Parliament for Bonds and Covenants both Stat. 14 Eliz. cap. 11. A Lease for yeares may begin at a day to come as at Michaelmas Co. 5. 1. sup Lit. 48. Plow 156. 197. 3. In respect of the Commencement continuance end of the term or estate Incertaintie next or three or ten yeares after or after the death of the lessor or of I S and it is as good as where it doth begin presently But a lease for life of any thing whatsoever whether it lye in Livery or in Grant if it be in esse before cannot begin at a day to come And therefore if a lease be made Habendum from Michaelmas next or from the day of the making of it or after the death of the lessor or after the death of I S to the lessee for life this lease is not good but in case of a lease of land made thus it is sometimes holpen by the Livery of seisin For which see Livery of Seisin chap. 9. Num. 11. But all leases for yeares whether they begin in presenti or in futuro Co. sup Lit. 45. Co. 1. 155 must be certaine that is they must have a certain beginning and certain ending and so the continuance of the term must be certain otherwise they are not good And yet if the years be certain when the lease is to take effect in interest or possession it is sufficient for untill that time it may depend upon an incertainty viz. upon a possible contingent precedent before it begin in possession or interest or upon a limitation or condition subsequent but in case when it is to be reduced to a certainty upon a contingent precedent the contingent must happen in the lives of the parties And albeit there appear no certainty of years in the lease yet if by reference to a certainty it may bee made certaine it is sufficient Id certum est quod certum reddi potest As for examples if A seised of lands in fee grant to B that when B shall pay to A twenty Co. super Lit. 45. Plow 83. 524. Co. 6. 35. 1. 155. shillings that from thenceforth he shall hold the land for twenty one years and after B doth pay the twenty shillings in this case B shall have a good lease for twenty one years from thenceforth And if A grant to B that if his tenant for life shall die that B shall have the land for ten years this is a good lease And if one make a lease for years after the death of C if C die within ten years this is a good lease if C die within the ten years otherwise not But if A be seised of land in fee and lease it to B for ten years and it is Plow 270. agreed between them that B shall pay to A an hundred pound at the end of the said ten years and that if he doe so and shall pay the said hundred pound and an hundred pound at the end of every ten years that then the said B shall have a perpetuall demise and grant of the premisses from ten years to ten years continually following extra memoriam hominum c. in this case this albeit it be a good lease for the first ten years yet it is void for all the rest for incertainty And if a lease be made to begin from the Nativity of Hil. 16 Jac. in the Ex. chequer Christ and he doth not say which Nativity as next c. it is void for incertainty And yet if a lease for years be made of land in lease Plow 192. 523. for life To have and to hold from the death of the tenant for life this is a good lease So if it be To have and to hold from Michaelmas next after the death of the tenant for life or from Michaelmas next after the determination of the estate of the tenant for life these are good leases So if there be a former lease in being for life Co. 6. 36. or years and another lease for years is made of the land To have and to hold from the end of the former estate by surrender forfeiture or otherwise for twenty years or to have and to hold from the surrender forfeiture or other determination of the former lease if there be any and if there be none for twenty years these and such like leases are good and this commencement is certain enough And if one make a lease to begin after the death of I S and to continue Plow 523. 17 Jac. B. R. Agree untill Michaelmas which shall be in Anno Domini 1650. this is a good lease If a man have a lease of land for an hundred years and he make a Lit. Bro. Sect. 437. Bro. Grant 154. Co. 1. â— 155. Plow 520 521. See Exposition of Deeds lease of this land to another To have to hold to him for 40 years to begin after his death this is a good lease for the whole forty years if there shall be so many of the hundred years to come at the time of the death of the lessor But if the lessor grant the land to another To have and to hold to him for during all the residue of the term of an hundred years that shall be to come at the time of the death of the grantor this is void for incertainty And yet if in this case he grant withall all his estate or all his term or all his interest in the premisses of the deed and then say To have and to hold the land c. to the grantee for all the residue of the terme of an hundred years that shall be
to come at the time of his death by this the whole estate and interest of the grantor into the land doth passe presently by these words in the premisses of the deed And if in this case the lessee for an hundred years make a lease of the land to have and to hold after his death for an hundred years this will bee a good lease for as many of the first hundred years as shall be to come at the time of his death If A make a lease to B for ninety years to begin after the death Per Justice Bridgeman of A on condition to be avoided upon the doing of divers acts by others and afterwards makes another lease of the land Habendum after the determination or redemption of the former lease it seems this is a good lease and certain enough But if a lease be made to A Co. 4. 153. Dier 253. for eighty years if he live so long and if he die within the said term or alien the premisses that then his estate shall cease and then he doth further by the same deed grant and let the premisses for so many years as shall then remain unexpired after the death of A or alienation to B for the residue of the said term of eighty years if he shall live so long in this case the lease to B is void for after the death of A the term is at end but if he say for the residue of the eighty years it is otherwise If A doth make a lease of land to B for so many years as B hath Plow 273. 523. 522. F. N. B. 6. N. 14 H. 8. 11. Co. 6. 35. in the Manor of Dale and B hath then a lease for ten years of the Manor of Dale in this case this is a good lease for ten years But if A make a lease of land to B for so many years as the land B hath in execution shal be in execution this lease is void for incertainty And if a lease be made during the minority of I S or untill I S shall come to the age of twenty one years these are good leases and if I S die before he come to his full age the lease is ended But if a lease be made to another until a child that is now in its mothers belly shal come to the age of twenty one years this lease is not good And if a lease be made for so many years as I S shall name in this case if I S do name a certain number of years in the life time of the party lessor this is a good lease But if a lease be made for so many years as the executor of the lessor or of the lessee shall name this lease is void If a man make a lease for twenty one years if I S live so long or Co. super Liâ— 45. Plow 27. if the coveroure between I S and D S shall so long continue or if I S shall continue to be Parson of Dale so long these and such like leases are good But if A make a lease to B for so many yeares as A and B or either of them shall live not naming any certain number of years this cannot be a good lease for years So if the Parson of Dale make a lease of his glebe for so many years as he shall be Parson there this is not certain neither can it be made so by any means And yet if a Parson shall make a lease from three years to three years so long as he shall be Parson this is a good lease for six years if he continue Parson so long and for the residue void for incertainty So if I make another a lease of land untill he be promoted to a Benefice this is no good lease for years but void for incertainty If I have a rent-charge of twenty pound per annum and let it to Co. 6. 35. 14 H. 8. 10. Plow 274. another untill he have levied an hundred pound this is a good lease for five years But if I have a peece of land of the value of twenty pound per annum and I make a lease of it to another untill he shall levy out of the profits thereof an hundred pound this is no good lease for years but void for incertainty But here note in all these cases of incertain leases made with such Note limitations as aforesaid as untill such a thing be done or so long Plow 27. Co. 6. 35. as such a thing continue c. that if livery of seisin be made upon them they may be good leases for life determinable on these contingents albeit they be no good leases for years And in some speciall cases a lease may be good notwithstanding Co. super Lit. 46. 10 Ed. 3. 26. some incertainty in the continuance of it for a lease may cease for a time and revive again as if tenant in tail make a lease for years reserving twenty shillings and after take a wife and die without issue in this case as to him in reversion the lease is meerly void but if he indow the wife of the tenant in tail of the land as to the wife it is revived again So if tenant in taile make a lease for yeares rendring rent and die without issue his wife enceint with a sonne and he in reversion enter in this case as against him the lease is void but after the sonne is born the lease is good again if it be within the Statute So if tenant in fee simple take a wife and then make a lease for years and dieth the wife is indowed in this case she shall avoid the lease but after her decease the lease shall be in force again If a lease be made for life or years to A and after the lessor doth 4 In respect of another lease then in being of the same thing Plow 433. â— 421. 273. Co. 1. 155. Bro. Leases 73. 10. Plow 521. Co. 4. 58. make a lease for years by word or in writing to B regularly this concurrent lease to B is a good lease at least for so many yeares of the second lease as shall be to come after the first lease is determined according to the agreement as if the first lease to A be for twenty years and the second lease to B be for thirty yeares and both begin at one time in this case the second lease is good for the last ten years And yet the reversion will not passe without the atturnment of the tenant and therefore if any rent be reserved on the first lease the second lessee shall not have it untill the first lessee doth atturn But if the second lease be for the same or for a lesse time as if the first lease be for twenty years and the second lease be for twenty or for ten years to begin at the same time these second leases are for the most part void And yet herein a difference Dier 58. 356
lands tenements or hereditaments manurable Co. 5. 3. or corporall which are necessary to be letten and whereout a rent by law may be issuing and reserved And therefore if a tenant in tail make a lease of such a thing as doth lie in grant as an Advowson Fair Market Franchise or the like out of which a rent cannot bee reserved especially if it be a lease for life this lease is Tallentines case Pasch 3 Jac. B. R. Co. 11. 60. void and that albeit the thing have been anciently and accustomably letten And a grant of a rent-charge therefore out of such lands is void * Trin. 2 Ja. B. R. Adjudg Doddingtons case And if tenant in tail make a lease for three lives of a portion of tithes rendring rent this lease is unquestionably void And so also it seems it is if it be a lease for twenty one years 7. They must be of such lands or tenements which have been most commonly letten to farm or occupied by the Farmors therof by the Co. 6. 37. Dier 271. space of twenty years next before the lease made so as if it have been letten for eleven years at one or severall times within twenty years before the new lease made it is sufficient And albeit the letting have been by copy of Court roll only yet such a letting in fee. for life or years is a sufficient letting and so also is a letting at will by the Common Law But these lettings to farm must be made by such as are seised of an estate of inheritance for if it have been only by Guardian in Chivalry tenant by the curtesie in dower or the like this will not serve to be a letting within the intent of the statute 8. There must be reserved upon such leases yearely during the Co. 5. 8. 6. 6. 37. same leases due and payable to the lessor and his heirs to whom the reversion shall appertain so much yearly farm or rent or more as hath beene most accustomably yeelded or paid for the lands c. within twenty years next before such lease made And therefore if the rent be reserved but for part of the time of the new lease this lease is void And if the tenant in taile have twenty acres of land that have been accustomably letten and hee make a lease of these twenty acres and of one acre more which hath not been accustomably letten reserving the usuall yearly rent and so much more as to exceed the value of the other acre this is not a good lease by the Statute So if the tenant in tail of two farms the one at twenty pound rent the other at ten pound rent and he make a lease of both these farms together at thirty pound rent this is not a good lease within the Statute But if besides the Co. 6. 37 38. Trin. 3 Jac. B. R. Adjudg annuall rent there have beene formerly reserved things not annuall as hariots fines or other profit upon the death of the Farmors or profit out of anothers soil as pasturage for a colt c. Adjudg Tr. 18 Jac. B. R. if upon the new lease the yearly rent be reserved albeit these collaterall reservations be omitted yet these leases are good And so Co. 5. 6. also if there be more rent reserved upon the new lease then the rent that hath been anciently paid the lease is good notwithstanding And yet if tenant in tail of land let a part of it that hath been accustomably letten and reserve the rent pro rata or more then after the rate this is not a good lease And yet if two coparcenours Co. 5. 5. And yet Co. super Lit. 44. b. is contra have twenty acres of land of equall value between them in tail and these have been usually letten and they make partition of these land so as each of them hath ten acres in this case they may make leases of their severall parts reserving the half of the accustomable rent And if upon the old lease the rent were payable at foure Trin. 3. Jac. B. R. Coâ—â—wals case Co. 5. 5. days in the year and by the new lease it is reserved to be paid at one day this is not a good lease But if the rent upon the old lease be payable in gold and the new rent be payable in silver it seems the lease is not good And if a tenant in tail be of a Manor Co. 5. 6. that hath been usually demised for ten pound rent and after a tenancy escheat and then he doth make a lease of the Manor rendring ten pound rent by the year in this case this is a good lease but if the lessor purchase a tenancy then it seems otherwise 9. Such leases must not be without impeachment of wast And therefore if tenant in tail make a lease of his land intailed without impeachment of wast this lease is void And if a lease be Wast Co. 6. 37. Meers case Adjudge made for life the remainder for life c. this is not a good lease for in this case during the remainders the tenant for life cannot be punished for wast done But if such a tenant of land make a lease of it to I S for the lives of three others this is a good lease albeit it may afterwards become an occupancy 10. Such leases must not be against any speciall Act of Parliament Stat. 11 H. 7. 20. Co. 3. 51. And therefore if a woman that is tenant in tail of the gift of her deceased husband or any of his Auncestors whiles she is sole or after with another husband make any such lease warranted by this Statute yet this lease is not good 11. They must have all due ceremonies and circumstances for the perfection of them as other such like leases have as livery of seism and the like where they are needfull And then only when Co. 7. 7. 8. 34. Dier 7. 8. The twomans Lawyer â—73 Plow 435. leases have these conditions and are made according to these provisions are they said to be within this statute of 32 H. 8. and such only as doe binde the tenant in tail himself and the issâ—e in tail for otherwise if it be not warranted by this statute albeit it will bind the tenant in tail himselfe that made it yet it will not binde his issue but as to him it will be void or voidable at the leastâ— for if tenant in tail of land make a lease of it for an hundred yeares without any rent reserved thereupon this lease as to the issue in tail is void but if he make a lease of his land for an hundred years Plow 436 rendring rent and have issue and die in this case the lease is onely Acceptance voidable by the issue at his pleasure and therefore if the issue accept the rent after the death of the tenant in tail by this means the lease is affirmed and become good But
but they may be for a lesse time 6. That they be of lands or tenements manurable or corporall 7. That they be made of lands that have been commonly let to farm by the space of 20 years before 8. That there be reserved upon them the ancient and accustomed rent payable to the lessor and his successors during the time 9. That they be not made without impeachment of wast 10. That there be livery of seisin upon them c. where it is requisite 11. If the lease be made according Co. 11. 66. 5. 3. to the exception of the Statute of 1 Eliz. and 13 Eliz. and not warrated by the Statute of 32 H. 8. as in the case of a concurrent lease and it be made by a Bishop or any sole Corporation it must be confirmed by the Deanes and Chapters or others that have interest And if a Parson or Vicar make a lease it is not good but during the Parson or Vicars residence according to the Statute of 13 Eliz. chap. 20. and in this case there needs no confirmation at all 12. Some of the leases that are made by the Colledges and houses of the University c. must have some rent corne reserved Stat. 18 El. cap. 20. upon them * Co. 5. 15. 11 66. 10. 58. Dier 370. And most of these points were agreed by Justice Jones and Just Whitlock at Lent Assises at Gloc. 6 Car. But Bishops Deanes Parsons and such like spirituall persons cannot grant the next advowsons of Churches neither can they grant rents out of their spirituall livings but the same charges will be void after their death And if a Bishop suffer an annuity to be recovered against him by a pretence of title of prescription on a Judgment after a verdict or confession or a Parson in such a case pray in aide of the Patron and so suffer an annuity to be recovered this will not bind the successor And yet a Bishop or any such spirituall person may grant ancient offices of trust of necessity or conveniency as the offices of Chancellor Register Steward Bailife or the like with the ancient fees incident thereunto for the life or lives of the grantees and such grants are good albeit they be made by the Bishops of the new erected Bishopricks and that there be not in them the conditions and properties required in the leases before mentioned so as they be confirmed by the Deane and Chapter But they may not grant any new office nor yet adde any new fee to the old offices And therefore if a Bishop grant an annuity pro consilio impenso impendendo where none was before this will not bind the successor And yet if there be an old fee and there is a new fee added to it in this case it seems it is good for the old fee albeit it be void for the new fee. Neither may they grant their offices otherwise then they have been granted And therefore where the ancient grants of the office have been to one it cannot be now granted to two And where the ancient grants have been to two jointly they may not be now granted in remainder one after another Neither may the grants of these offices be longer then for the life or lives of the grantees And in case where the grant is void the confirmation of the Deane and Chapter will not make it good But here note that albeit in all these cases of leases and grants Co. super Lit. 45. 329. 3. 59. 10. 59. 11 73. 78. 5. 5. not warranted by the Statutes aforesaid the Statutes say the leases Note shall be void yet this is to be understood as against the successors and not against the lessors themselves for the leases are good so long as the lessors live or at least so long as they continue in the place And therefore if such a lease be made by a Deane and Chapter or other Corporation aggregate it is good as against the Deane or other head of the Corporation so long as he doth continue in his place And if a Bishop make any lease or other grant not warranted by the Statute of 1 Eliz. or a Deane and Chapter Master and Fellowes of a Colledge or the like make leases not warranted by the Statute of 13 Eliz. cap. 10. these leases are good against themselves albeit they are void against their successors So as if a private Act of Parliament doth entaile land upon a man and appoint him what estates he shall make and that if he make any other estates they shall be void in this case they shall not be void as to the tenant in taile himselfe that doth make them Leases of Benefices with cure are no longer good then the Parson Stat. 13 El. cap. 20. is resident Leases made by Colledges must have reserved upon them the third part of the rent in Corn. See the Statute of 18 Eliz. cap. 20. If one make a lease to another during the will and pleasure of 8. What shall be said a good lease at will Or not Co. super Lit. 55. 56. 270. 14 H. 8. 12. him that letteth or him that taketh or both for so in effect is every lease at will this is a good lease at will So if one make a feoffment in fee or lease for life c. and doe not make livery of seisin and so perfect the estate the feoffee or lessee hath only an estate at will But if a bargaine and sale be made of land and the same is void or a Corporation grant land and the grant is void by this there is no lease at will made Leases for lives or yeares are of three natures some be good in 9. Where a lease for life or years shall be void ipso facto by the death of the lessor or by other meanes Or not but voidable by entry c. And how Co. super Lit. 45. 3. 59. 65. 7 8. law some be voidable by entry and some void without entry And of such as be good in law some be good at the common law as leases made by tenant in fee simple notwithstanding they be for longer time then three lives or twenty one yeares some by act of Parliament as leases made by tenant in taile leases made by a Bishop seised in fee in the right of his Church alone without the Chapter leases made by a man seised in fee simple or fee taile of land in the right of his wife together with his wife for twenty one yeares or three lives according to the Statutes And of such leases as be void also some are void at the common law and that sometimes in presenti as in the cases before of leases for yeares that have no certainty in them or leases for lives made without livery of seisin and the like And some are void in futuro as if a tenant in taile make a lease for yeares warranted or not warranted by the Statute and after die without issue
if he be put out of or lose by action the land he taketh in exchange hath a double remedy against the other and yet this remedy doth goe only in the privity and shall not goe to an assignee As if Assignee A exchange land with B and B be put out of all or part of the land upon a title paramount by a recovery in a reall action or otherwise in this case B may either enter upon his owne land againe which he gave in exchange or else if it be in an action brought he may vouch A upon the warranty in law and shall recover as much in value against him of the land he gave as he hath lost of the land he tooke in exchange But if B alien his land taken in exchange to C and C be put out of all or part of the land upon a title paramount C in this case can neither enter upon the land given to A in exchange upon the condition in law nor vouch A to warranty and recover over in value upon the warranty in law And yet A in this case shall have the like remedy against C the alienee upon the condition and warranty both as he had against B. But if A himselfe implead C for the land he gave to B in exchange C may make use of this warranty in law by way of Rebutter against A. And in all these cases where one of the parties is put out of all or part of the Rebutter land or out of part of the estate by entry and the other party enter upon the others land upon the condition in law he may enter upon the whole land and avoid the whole exchange but if he be impleaded for a part only or for the whole and a part only be recovered from him in this case he shall recover so much in value of the other land only as he hath lost and no more As if an exchange be of three acres for three acres and after one of the parties is put out of one of the acres by the entry of a stranger in this case he may enter upon the whole three acres he had given in exchange and so avoid the whole exchange if he will And if A and B be Jointenants for life and the fee simple to the heires of A and A exchange this land with C in fee and then die and B enter and avoid the exchange for his life as he may in this case C may avoid the whole exchange and enter upon his owne three acres againe So if he in reversion disseise his tenant for life and then exchange the land and after the tenant for life enter in this case the other party may defeate the whole exchange But in this case of an exchange of three acres for three acres if one of the acres were gained by disseisin and the disseisee bring an action and doth recover it against the disseisor in this case if he vouch over the other party to the exchange he shall recover so much in value only of the three acres he gave in exchange as the acre he hath lost and no more To the perfection of an exchange and to make things to passe 3. How an exchange must be made And what shall be said a good exchaâ—ge Or not See Grant Numb 4. by this kind of conveyance these things are requisite 1. That the persons or parties thereunto be able to give and take and not disabled by any speciall impediment And for this it must be known that such persons as may be grantors and grantees may make exchanges and such persons as are disabled to grant are disabled to 1. In respect of the parties therunto and their estates make exchanges An exchange made between the King and a subject is good albeit Co. super Lit. 51. the King hold his land in one capacity and the subject in another An exchange made between an Infant and another is not void Infant Idem but voidable only for the Infant at his full age may affirme or avoid it at his election An exchange made between a tenant in taile and another is not Tenant in tail Bro. Eschange 9. Perk. Sect. 279. void but voidable for it is good against himselfe during his life and his issue at his full age may affirme or avoid it at his election An exchange made between a man de non sane memorie and another Bro. Eschange 9. De non sane memorie is not void but voidable for it is good against him but his heir may avoid or affirme it at his election A man that doth hold land in fee simple fee taile or for life in Bro. idem Perk. Sect. 279. the right of his wife may exchange this land and the exchange will Husband in right of his wife be good as long as he and his wife doth live And he with his wife may exchange it for longer time and the exchange is good against him but his wife after his death may affirme or avoid it if she will One Parson or Vicar may exchange his Church or Benefice with Parson Perk. Sect. 288. another and this exchange is good The disseisor and disseisee may joine together and exchange the Perk. Sect. 280. 273. land whereof the disseisin was made with a stranger for other land but if it be made out of the land and before the entry of the disseisee it shall not bind the disseisee for he may avoid it And a disseisor cannot exchange the land he hath gotten by disseisin with the disseisee for other land for this exchange is void unlesse it be by Indenture or fine that it may work by way of estoppell The lessor and lessee may joine together and exchange the land Surrender Perk. Sect. 279. leased for other land and this is good for it shall be said to be the surrender of the lessee to the lessor and the exchange of the lessor and therefore the lessee as it seemes shall have nothing to doe with the land taken in exchange Sed quere of that Jointenants for life the fee to one of them may exchange their Iointenants Terants in common land with a stranger for other land to hold in the same nature and Perk. Sect. 277. 281. the exchange is good But Jointenants tenants in common and coparceners cannot exchange the lands they doe so hold one with another before they have made partition If A and B be Jointenants for life the fee to A and A exchange Perk. Sect. 277. the whole land with another for other land this is good only for his moity as some have said But it seems notwithstanding it is good for the whole untill it be avoided by the other Jointenant The second thing required in a good exchange is that the things Perk. Sect. 263. 261 262. 266. 258. Lit. Sect. 62. Co. super Lit. 51 52. 2. In respect of the
matter whereof it is made or the nature of the thing exchanged And of what things and estates an exchange may be made exchanged be such as whereof an exchange may be made And for this it must be known that an exchange may be made of things of the same nature as of a temporall thing for a temporall thing a spirituall thing for a spirituall as a house for a house land for land a Manor for a Manor a Church for a Church rent for rent common for common a horse for a horse one peece of plate for another or the like or it may be made of things of a divers nature as of a temporall thing for a spirituall as of a house for land or rent a chamber in a house for common or for a reversion seigniory or advowson of land or rent for a right of land or release of right of an advowson for land of a rent for a way of a horse for a peece of plate of a gowne for a horse or the like And exchanges made of these things albeit the things exchanged doe lie in divers counties are good Also a seigniory by homage and fealty or the like which is not valuable Perk. Sect. 259 260. 258. may be exchanged for land rent or any other such like thing So may a seigniory by divine service But a seigniory in frankalmoigne cannot be exchanged with any but the tenant of the land that doth hold by the tenure And houses manors lands rents commons seigniories reversions and the like may be exchanged in fee simple fee tail for life or years So that an exchange may be of an Inheritance for an Inheritance of a franktenement for a franktenemant and of chattells reall for chattells reall If one grant white acre in exchange for black acre lying within Perk. Sect. 244. Idem 263 3 E. 4. 10. 9 E. 4. 21. 9 E. 4. 21. Perk. Sect. 262. the same or in two counties this is a good exchange So if I grant a rent charge issuing out of my land in exchange to I S for an acre of his land c. this is a good exchange So if I have a rent issuing out of the land of I S and I grant this to I K in exchange for land or other rent this exchange is good when the tenant hath atturned to the grant of the rent So if one have a rent out of my land in fee I have the land in fee I grant the land in exchange for the rent it seems this is a good exchange But if one grant me a Manor or land I in exchange for the same Manor or land grant unto him a rent de novo issuing out the same land or Mannor this cannot take effect as an Exchange So if one release his Estovers that hee hath in Perk. Sect. 266. Fitz. Eschange 16. such a Wood and deliver the Release in Exchange for land given to him in exchange for the same release this is a good exchange d Perk. Sect. 271. If there be a disseisor and disseisee and the disseisee release his right to the disseisor in exchange for other land this is a good exchange e Idem 282. So if the disseisor of an acre of land enfeoffe a stranger of the same acre of land and the feoffee give to the disseisee an acre of land in fee in exchange for a release of all his right in the acre of land of which he was disseised this is a good exchange f Idem Sect. 271. But if the disseisee grant his right to a stranger that hath nothing in the land in exchange for an acre of land this exchange is not good neither shall the stranger take any thing by this grant g Perk. Sect. 260. If there be Lord and tenant by fealty and 12 d. rent and the Lord exchange the seigniory with the tenant for the tenancy or è converso by deed indented this is held by some to be a good exchange h Perk. Sect. 267. If I have a rent issuing out of the land of I S I grant or release the same rent to I S in exchange for other land this is a good exchange So if I release the same rent unto him in exchange for a way over his ground this is a good exchange Perk. Sect. 268 269. If I be seised of lands to which I S hath a right of action and I give to him other land for a release of his right this is a good exchange And the same law is of an exchange of land and an advowson by deed indented for a release of right in another advowson to an usurper when his Incumbent hath been in possession of the Church six moneths k Perk. Sect. 257. If two Parsons of a Church make an exchange of their benefices by words of exchange and each of them resigne his benefice into the hands of the Bishop to the same intent and the Patrons present accordingly and the Presentations are per viam permutationis this is a good exchange l Perk. Sect. 264 265. If three acres of land with an advowson appendant be given in exchange by T K to I S for a chamber to be assigned by the said I S at the election of T K and he assigne two chambers and T K choose and enter upon one and I S enter upon the land this exchange is good notwithstanding the incertainty So if I S give his Manor of A to T K in exchange for his Manor of B or for his Manor of C he enter upon one of these Manors and T K enter upon the Manor of A this exchange is good Out of all which these things by the way may be observed 1. That the things exchanged need not to be in esse at the time of Co. super Lit. 50. Perk. Sect. 265. exchange made for a man may grant a rent de novo out of his land in exchange for a Manor And yet if I grant to another the Manor of A for the Manor of B which he is to have after his fathers death by descent it seems this exchange is void 2. There needs no transmutation of possession for a release of rent estovers or right of land for land is good 3. The things exchanged need not to be of one nature so as they concerne lands or tenements for land may be exchanged for rent common or any other inheritance which doth concerne lands or tenements or spirituall for temporall things as tithes a tenure by divine service for land or a temporall seigniory But annuities and such like things which charge the person only and doe not concerne lands or tenements or goods and chattels cannot be exchanged for land The third thing required in a good exchange is that it be made Perk. Sect. 244. Co. super Lit. 51 52. Lit. Sect. 62. Co. 9. 14. Perk Sect. 247 248 249 250. 246. in that manner and order that law doth
require wherein these 3. In respect of the manner of the making of the exchange And where it shall be good without deed or â—ot things are to be known 1. That if all or part of the things whereof the exchange is made doe lie in severall counties or if all or part of the things whereof the exchange is be such as lie in grant and not in livery albeit it be in the same county in these cases the exchange must be made by deed indented in writing But where the exchange is of lands and of lands lying in the same county albeit it be of any estate of inheritance or free hold yet it may be by word of mouth without writing And so also may it be when the things exchanged doe lie in divers counties when the exchange is made only for a terme of years And therefore if an exchange be made between I S and T K of lands lying in one and the same county in fee or for life it may be by word of mouth but if all or part of the lands of I S lie in one county and all or part of the lands of T K doe lie in another county the exchange must be made by deed indented If an exchange be made of rent for land and the land out of which the rent is issuing and the land given in exchange for it doe both lie in one county this exchange cannot be good without deed So if an exchange be made of the reversion of an acre of land for three shillings of rent issuing out of another acre of land and both acres are in one county this exchange must be made by deed indented or it will not be good So if an exchange be made of an acre of land and a rent out of another acre for another acre of land and common for three beasts and all is in one and the same county this exchange must be by deed indented or it will not be good But if I be seised of a Manor to which I have common appendant or appurtenant and T K is seised of another Manor to which he hath a villaine regardant and both the Manors are in one county an exchange may be made of these Manors by word of mouth without writing and the common and villaine will passe as incidents well enough And yet if I S hath an office whereunto land doth belong and T K hath rent issuing out of the land of a stranger and all the land is in one county and the office is to be used and occupied in the same county if these things be exchanged it must be by deed indented 2. The word Eschange or Exchange Co. super Lit. 50 51 Perk. Sect. 252 253. 9 E. 4. 21. Fitz. Exchange 13. must be had and used between the parties in the making of the exchange As I grant to you white acre To have and to hold to you and your heires in exchange for blacke acre And in consideration hereof you grant to me and my heires blacke acre in exchange for white acre for this word is so individually requisite as it cannot be supplied by any other word neither will any averment that it was in exchange helpe in this case And therefore if A by deed indented give to B an acre of land in fee simple or for life and by the same deed B doth give to A another acre of land in the same manner this cannot enure as an exchange And therefore if no livery of seisin so as it may take effect by way of Grant it is utterly void Livery of seisin But by this meanes lands may be granted from one to another for there needs no livery of seisin So if an exchange be made by words betweene two of lands in one county and before their entry Indentures are made betweene them of the same lands without words of exchange and no livery of seisin is made this shall not passe by way of exchange And yet it hath been held by some that Permutatio or some other word of like effect may supply this word exchange 3. That if any rent reversion seigniory or the like Perk. Sect. 259. 263. 289. 276. be granted by either party that then the tenant doe atturne to the grant for that atturnment is requisite in this case And yet in Atturnment the case of the grant of land in possession in exchange no livery of seisin is needfull Neither is it needfull that either party to the exchange come to the thing given to him in exchange by the same Livery of seisin meane and manner of assurance for if lessee for life of one acre give another acre to his lessor in taile in exchange for a release from him of that acre To have and to hold in taile in like manner this is a good exchange An exchange may be made to take effect in futuro as well as in Perk. Sect. 265. presenti for if an exchange be made betweene me and T K that after the Feast of Easter T K shall have my Manor of Dale in exchange for his Manor of Sale this is a good exchange If an exchange be made in writing of land and it doth limit and expresse no estate that either party shall have in the thing exchanged 19 H. 6. 27. Perk. Sect. 275. yet this is a good exchange But if an estate for life be limited expressely to one and no expresse estate is limited to the other this is not a good exchange as shall be shewed in the next place The fourth thing required in a good exchange is equality of Fitz. Exchange 15. Lit. Sect. 64 65. Co. super Lit. 50 51. Perk. Sect. 276. estate viz. that either party have the like kind of estate of the 4 In respect of the quality or equality of the estates or interests exchanged thing exchanged so that if one have an estate in fee simple the other have so likewise and so for other estates For if the one grant that the other shall have his land in fee simple for the land which he hath of the other in fee taile or that the one shall have in the one land fee taile and the other in the other land but for terme of life or that the one shall have in the one land fee taile generall and the other in the other land fee taile speciall or that the one shall have in the one land for life and the other in the other land but for yeares these exchanges are void and cannot take effect as exchanges m Perk. Sect. 283. And therefore if the Lord release to his tenant his services in taile in exchange for other lands given to the Lord in exchange in taile also this exchange is void for by this release made by the Lord the services are gone for ever n Perk. Sect. 275. Finches ley 27. So if tenant for his owne life exchange with him that is tenant for life of another this
the exchange hereby the exchange is made good And in all these cases when the exchange is once by agreement made good it can never by any subsequent disagreement be afterwards made void And now from hence we come to a Surrender a speciall way or means for the giving or transferring of something to another that hath already some interest into the same thing CHAP. XVII Of a Surrender A Surrender properly taken is the yeelding or delivering up of Co. super Lit. 337. 1. Surrender Quid. lands or tenements and the estate a man hath therein unto another that hath a higher and greater estate in the same lands or tenements But it is sometimes improperly applied to other things He that doth surrender is called the surrendror and he to whom it Surrendror Surrendree is made is called the surrendree And there be three kinds of surrender viz. A surrender properly 2. Quotuplex Co. super Lit. 337 338 Co. 6. 69. Plow 106 107. West Symb. 1. part lib. 2. chap. 460. taken at the Common law 2. A surrender by custome of lands holden by custome or of customary estates whereof we speak not here 3. A surrender improperly taken as of a deed or grant of a rent-charge of a patent and of lands in fee simple to the King The surrender properly taken is of two sorts 1. Expresse or in deed which is when it is done by apt words and the expresse agreement of the parties 2. In law or implied which is when it is wrought by consequent and operation of law or when the law doth interpret or enure something done to another intent to make a surrender of it And in the first case it is sometimes by word only and sometimes by writing And when it is by writing it is said to be an instrument testifying by apt words that the particular tenant of the lands or tenements for life or years doth consent and agree that he which hath the next and immediate remainder or reversion thereof shall also have the particular estate of the same in possession and that he yeeldeth the same unto him The fruit and effect of a surrender is that it doth passe the estate Co. super Lit. 338. Co. 1. 96. Bro. surrender 47. Perk Sect. 591. 3. The effect of i◠of the surrendror to the surrendree and that hereupon the estate of the surrendror is drowned and extinct in the estate of the surrendree And yet not so but that to some purposes it shall bee said to have continuance still And therefore if tenant for life grant a rent-charge and after doth surrender his land in this case the rent-charge shall continue notwithstanding the surrender So if lessee for life make a lease for years rendring rent and the lessee for life surrender his estate in this case albeit the primitive estate Extinguishment for life be yeelded up yet the derivative estate for years shall continue notwithstanding but the surrendree shall not have the rent reserved upon the lease for years So if lessee for life or years break a covenant with his lessor and after surrender his estate to him his Covenant breach of covenant is not hereby salved for the lessor may have an action of covenant still notwithstanding the surrender And if one seised of land grant a rent out of it in fee and this rent is extended Co. 8. 145. 2. 39. Bro. Sur. 42. on a statute or granted for lesse time to another and then the grantee doth surrender the deed of the grant of the rent to the tenant of the land in this case the rent shall continue as to him that hath execution and the grantee And if one make a lease for years rendring rent and the lessee surrender his estate to the lessor hereby the rent is extinct but if the lessor grant the rent to a stranger before the surrender contrà And if one lease for years and the lessee let parcel of his term to his lessor rendring rent and after the lessee surrender his whole estate in this case it seems the rent is determined If lessee for life or years take a new lease of him in reversion of 14 H. 8. 15. Plow 194. Dier 28. Co. 10. 67. the same thing in particular contained in the former lease for life 4. What shall be said a surrender in law of lands And by what means an estate shall be surrendred in law Or not By acceptance and taking of a new estate or years this is a surrender in law of the first lease As if lessee for his own or anothers life in possession or reversion take a new lease for years Or a lessee for forty years take a new lease for fifty years the first lease in both these cases is surrendred And this rule holdeth albeit the second lease be for a lesse time thē the first as if lessee Perk. Sect. 617. Co. 5. 11. for life accept a lease for years or lessee for twenty years accept a lease for two years And albeit the second lease be voidable as being Fitz. Surrender 3. Co. super Lit. 218. 37 H. 6. 17. made upon condition as if lessee for twenty years take a new lease for twenty years upon condition that if such a thing happen the second lease shall be void and the thing doe after happen in this case both these leases are become void As where the lessor doth grant the reversion to the lessee upon condition and after the condition is broken Or if the second lease be made by tenant in tail Dier 140 141. or the like as if a man make a lease for years of land and then make a feoffment to another of the land and then take back an estate to him and his wife of the land and then make a new lease to the lessee for ten years this is a surrender in law of the first lease But if the second lease be meerly void then it is otherwise And therefore if the lessor doe by words of covenant only promise to Dier 272. his lessee that he shall have a new lease and doe never actually make him this is no surrender in law a Dier 178. 177. Co 5. 54. 55. Kelw. 70. And this rule as it seems holdeth also albeit the second lease be to the lessee and a stranger or to the lessee and his wife and albeit the second lease be by Dier 140. 141. 1. word only and the first lease be by deed if so be that the thing granted by the lease be such a thing as may passe by word without writing and albeit the second lease be in another right as if the Dier 178. husband have a lease for yeares in the right of his wife and then take a new lease to himself in his own name and albeit the first Pasc 40 El. Co. super Lit. 338. Co. 6. 69. 10. 53. 67. 5. 11. Dier 280. lease be to begin presently and
the second be to begin at a day to come or è converso * Dier 93. 112. and albeit there be a mean estate between as if land be let to A for years and after let to B for years to begin after the first term and the assignee of A doth take a new lease So if one demise land for ten years to one and after demise it for ten years to another to begin at Michaelmas and after the first lessee accept a new lease For in all these cases there is a surrender in law of the first leases And if there be two lesses for life or Dier 46. Co. 2. 60. years and one of them take a new lease for years this is a surrender of his moity whereby it doth appear that a surrender in law Co. 6. 69. 10. 67. may be made of some estates which cannot be surrendred by a surrender in fait for fortior est dispositio legis quam hominis And hence it is that a corporation aggregate may make a surrender in law without deed although it cannot make an expresse surrender without deed But if the lessee doe only licence the lessor to make a feoffment and to give livery of seisin or doe give livery of seisin for Perk. Sect. 608. Bro. Surrender 48. Trin. 5 Jac. him as his Atturney or doe licence him to enter into the land and no more neither of these things shall be said to be a surrender in law So if the second lease be made of another and not of the same thing whereof the first lease is made as where the first lease is of the land and the second is made of a rent or other profit to be Co. 6. 69. taken out of the land or the first is of a Manor and the second of Adjudged the Bayliwick or Stewardship of the Manor or the first is of a Park and the second is of the Keepership of the Park in these cases there is no surrender of the first lease Also if the second lease be not a good lease perhaps it shall not be construed a surrender See Co. 2. Lanes case 17. But if the first lease be of the land it self and the second lease is Trin. 5. Jac. Sir Jo. Chamberlain case See Dier 200. of the vesture of the same land this is held to be a surrender of the first lease * Co. 5. 11. So if the second lease be not to begin untill the first lease end the taking of this second lease is no surrender of the first lease So it hath been said if one make a lease of black acre in Dale and the lessee accept a second lease of all the lands of the lessor in Dale in generall words and the lessor that doth make the lease have divers other lands there besides this acre that this is no surrender of the first lease Sed quere of this for others do much doubt Per Curiam B. R. 9. Jac. it So if one enter into land make a lease for the triall of the title only and after the lessor he and the lessee being both out of possession make another lease of the same thing to the lessee it seems this is no surrender of the first lease but if the lessor enter before he make the lease contra To make a good surrender in deed of See Perk. in his chap. of Surrender in toto Bro. Surrender in toto Fitz. Surrender in toto Co. super Lit. 338. lands and to make them to passe by such a surrender these things 5. What shall be said a surrender in deed of lands And when they shall be said to passe by such a surrender Or not 1. In respect of the person between whom it is made and their estate and possession are first of all required 1. That the surrendror be a person able to grant and make and the surrendree a person capable and able to take and receive a surrender and that they both have such estates as are capable of a surrender And for this purpose 1. That the surrendror have an estate in possession of the thing surrendred at the time of the surrender made and not a bare right thereunto only 2. That the surrender be to him that hath the next immediate estate in remainder or reversion and that there be no intervenient estate coming between 3. That there be a privity of estate between the surrendror and the surrendree 4. That the surrendree have a higher and greater estate in the thing surrendred then the surrendror hath so that the estate of the surrendror may be drowned therein 5. That he have the estate in his own right and not in the right of his wife c. 6. And that he be sole seised of this estate in remainder or reversion and not in jointenancy As for examples infants women covert mad and lunatick men and all such like persons as are disabled to grant are disabled to make a surrender and none but such as may grant their land may surrender their land A Corporation aggregate of many cannot make an expresse surrender without a deed but it may make such a surrender Co. 10. 67. by deed And such persons as are disabled to take by a grant are disabled to take by a surrender and such as may bee grantees may be surrendrees and therefore a surrender made to an infant is good If the husband have a lease or estate for years in the right Husband and wife of his wife he alone or he and his wife together may surrender Perk. Sect. 613. 612. Bro. surrender 44. this but if the husband have an estate for life in the right of his wife being tenant in dower or otherwise and he alone or hee and shee together surrender this this surrender is good onely during the life of the husband except it bee made by fine One 21 H. 7. 25. execut or may surrender an estate or lease for years which the executors Executors Tenant in common have in the right of their testator If there be two tenants in common and one of them have the particular estate and the other Perk. sect 586 587. Fitz. sur 2. the fee simple as where an estate is limited to two and the heirs of one of them and he that hath the estate for life doth alien his part to a stranger in this case the alienee may surrender to the other jointenant So if there be three jointenants for life and the fee simple is limited to the heirs of one of them and one of the jointenants for life doth release to the other and he to whom this Iointenant release is made doth surrender to him that hath the fee simple this is a good surrender of a third part But otherwise one jointenant cannot surrender to another jointenant albeit he be tenant for life which doth make and he tenant in fee simple that doth take the Perk. Sect. 584.
uncapable in himself or è contra In some cases also it wil lessen and diminish rents or services But it cannot ne will change the nature of the service into some other kind of service nor increase it into a greater service If a Bishop Dean Archdeacon Prebend or the like make any Co. super Lit. 300 301. Co. 10. 62. 5. 3. Dier 145. 273. 349. 338. 339. 61. 4. Where the confirmation of some persons is needfull to perfect the grant of others Or not And how it may iâ— done lease of the land they have in the right of their Bishoprick Deanery Archdeanery or Prebendship not warranted by the Statute of 32 H. 8. and within the other Statutes it seems this lease must be confirmed by the Dean and Chapter by their common seal and if there be two Chapters it must be confirmed by them both or otherwise it is not good But if the lease bee such a lease as is warranted by the Statutes the Bishop may make it without the confirmation of the King the Patron and Founder of Bishopricks or the Dean and Chapter And so also it seems of the rest And a Corporation aggregate as Dean and Chapter Master and Fellows and the like may grant without any confirmation of the Founder and this grant will be good If a Bishop c. grant an ancient office belonging Co. 10. 62. to his Bishoprick albeit it be but for the life of the grantee yet it must be confirmed by the Dean and Chapter otherwise it is not good If a Parson or Vicar had made any lease for longer time Dier 52. stat 13 El. ch 2â— then his own life it must have been confirmed by the Patron Ordinary But at this day albeit it be confirmed by the Patron and Ordinary yet the lease is good for no longer then during the Parsons ordinary residencie except it be impropried If tenant for life grant a rent-charge to I S and his heirs in this Co. 1. 147. case he in reversion must confirm it otherwise the grant of the rent will be good for no longer then the life of the tenant for life Where a man hath an interest in any lands tenements rents commons Co. 8. 167. Dier 277. felons goods or the like by grant of any of the Kings of the Realm he need not have the confirmation of any or of every succeeding King Also it seems grants of Fairs Markets Warrens Dier 327. Lit. Bro. 203. Kelw. â—45 188. and the like made by one King will be good in law against his successors without any confirmation But all such as have any judiciall or ministeriall offices commissions and authorities derived from the King must have the confirmation of every succeeding King otherwise they may lose them * 5. What confirmations may be made And what shall be said a good expresse or implied confirmation Or not And by what words it may be made 1. To confirm or alter the quality of the estate of him â—o whom it is made In every good confirmation tending to confirm an estate or alter the quality of it these things must concur 1. There must be a good confirmor and a good confirmee and a thing to be confirmed as in other grants and the deed must bee well sealed c. 2. There must be a precedent rightfull or wrongfull estate in him to whom the confirmation is made in his own or in anothers right or at least he must have the possession of the thing whereof the confirmation is to be made that may be as a foundation for the confirmation to work upon As if feoffee on condition make a feoffment Co. 1. 146. 9. 142. 7 H. 6. 7. over and the feoffor confirm his estate to him to whom the second feoffment is made and his heirs this is a good confirmation to make his estate absolute And if lessee for life make a feoffment in fee or Lit. sect 516. lease for years and the first lessor confirm this second estate it seems this is a good confirmation And if one disseise me of land Co. 9. 142. 6. 15. Perk. sect 86. Lit. sect 518. 521. 11 H. 7. 29. 28. I may after confirm the estate of the disseisor or of his heir if he be dead or of his feoffee if he have aliened it and this will make his estate good for ever And if the disseisor make a lease for life or years of it I may confirm the estate of the lessee and this will make it good for the time * Co. 1. 144. Lit. sect 527. 529. 11 H. 7. 28. Co. super Lit. 300. Lit. sect 547. 11 H. 7. 28. And if one make a lease for life absolute or a feoffment in fee or lease for life on condition or be disseised of land and the lessee for life feoffee or disseisor doth grant a rent out of the land in fee and the lessor feoffor or disseisee doth confirm the estate of the grantee this doth make good the grant for ever And so also if the heire of a disseisor that is in by descent grant a rent-charge and the disseisee confirmeth it this is a good confirmation And if an Infant make a lease for 20 years and the lessee doth make a lease to another for all or part of the time and Infant the infant at his full age doth confirm this second lease this is a good confirmation and doth perfect the lease for it is a rule That which I may defeat by my entry I may confirm by my deed But if there Co. super Lit. 295. 301 Dier 263. be no precedent estate on which the confirmation may work or the estate be such an estate as is meerly void then is the confirmation void and cannot take effect as a confirmation as for example If a man assign dower to a woman that hath nothing to do with it or a Court that hath not power doth make leases by commission or an estate that was upon condition is avoided by entry or a lessee surrender or a disseisee enter upon a disseisor and afterwards he that hath the rightfull estate confirm their estates so defeated and gone these confirmations are void Debile fundamentum fallit opus And a confirmation to him that hath nothing in the land is void And hence it is that if one confirm all his estate that he hath granted to another when in truth he hath granted none at all this is void And so also it is if there be an estate and no possession as if a disseisor make a lease for years to begin at Michaelmas and before 4 H. 7. 10. the day the disseisee doth confirme the estate of the lessee for years it is said this is not a good confirmation sed quaere 3. The Dier 109. confirmor must have such an estate and property in the thing wherof the confirmation is made as he may be thereby enabled to confirm the estate of the confirmee
these confirmations are good But in all these kind of confirmations care must be had of the manner of penning them and that in every such deed there be a limitation of the estate i. That these words be inserted To have and to hold the tenements c. to him and his heires or to him and the heires of his body or to him for terme of life or yeares as the agreement is for if lessee for life make a lease for yeares and then lessee for life and he in reversion confirme the land To have and to hold to him for life or to him and his heires these words will make the estate to increase But if the confirmation be made to the lessee for life or for yeares of Lit. Sect. 524. 545. Plow 540. his terme or estate and not of the land As when he doth confirme his estate To have and to hold his estate to him and his heires this doth not increase the estate And yet if he confirme the land To have and to hold the land to him and his heires this will increase the estate Et sic de similibus If the husband have an estate of land for life or yeares in the Co. super Lit. 299. plow 160. Lit. Sect. 525. Fitz. Confirmation 7. 17. right of his wife or to them both for life and a confirmation to him alone of his estate or of the land To have and to hold the land to him and his heires this is a good conveyance of the fee simple to him after the death of his wife And if I let land to a woman sole for the terme of her life who taketh a husband and after I doe confirme the estate of the husband and wife To have and to hold for terme of their two lives this is good but it shall enure only to enlarge his estate for terme of his life it he survive his wife But if one lease to another for life and after confirme the estate of the lessee to him and his wife for terme of their two lives this is void as to the wife If one grant a rent-charge out of his land for life and after the Lit. Sect. 548 549. grantor confirme the estate of the grantee in the rent without any clause of distresse To have and to hold to him in fee simple or fee taile this confirmation is not effectuall to enlarge the estate But if a man be seised of an old rent-charge or rent-service and grant the same first for life and after confirme the estate of the grantee in fee simple or fee taile this is good and will enlarge the estate accordingly If tenant for life grant a rent out of the land to one and his heirs Co. 1. 147. during the life of the lessee for life and after the lessor confirme the rent to the grantee and his heires it seems the estate is not hereby enlarged but when the tenant for life doth die the rent shall cease This kind of confirmation may be made by the same words as Co. super Lit. 301. Fitz. Confirmotion 23. the former viz. by the words Give Grant or Demise But neither of these may be made by the words Surrender Release Exchange or the like for these are peculiar words destined to a speciall end being proper and peculiar manner of conveyances And yet if I that am a lessor do say to my lessee for yeares by my deed I will that you shall hold the land for your life this is a good confirmation to increase the estate by this word volo only So if I grant to my lessee for yeares that he shall hold the land for terme of his life this without any other words is a good confirmation By a confirmation the Lord may confirme the estate of his tenant Co. 9. 142. Lit. Sect. 538. which holdeth by Knights service to hold in Socage or to hold for 3. To diminish or a bridge the services c. a lesse rent or to hold at common law where before he did hold in ancient demesne and such a confirmation is good But such a confirmation as is to hold by new services as a rose for money or the like is not good for that purpose And in this case there must be also a privity And therefore if there be Lord mesne and tenant and the Lord confirme the estate of the tenant to hold by lesse services this is void And if the Lord confirme to his tenant after he is disseised before his entry to hold by lesse services this is void A confirmation may be by apt words in case of a lease for yeares for part of the time but in case of a free hold it cannot be so And 6. Where a confirmation may be good for part of the estate or for part of the thing Or not Co. 5. 81 82. Lit. Sect. 5 19. Co. super Lit. â—97 Lit. Sect. 520. so also it may extend to part of the thing before in estate And therefore if a disseisor tenant in taile husband of the land he hath in the right of his wife or lessee for life make a lease for yeares and the disseisee issue in taile wife or less or make a confirmation of all the land for part of the time or of part of the land for all the time this confirmation is good But if any such person make a lease for life gift in taile c. the disseisee cannot confirme part of the estate but he must confirme all And therefore if he confirme his estate for one houre it is a confirmation of the whole estate And so also if he confirme the land to the disseisor himselfe but one houre one week one yeare or for his life c. this is a good confirmation of the estate for ever And if it be a lease for yeares that is confirmed care must be had to the manner of the confirmation for if the confirmation be of the estate or the terme for one houre this is a good confirmation for the whole time and therefore the confirmation must be had of the land To have and to hold for part of the terme and being so made it may be good for that time only and no longer If I make a feoffment on condition and before the condition broken 11 H. 7. 29. Co. 1. 146. 9. 142. 7. The force and virtue of it And how it shall enure and be construed and taken I confirme the estate of the feoffee absolutely this will not extinguish the condition And yet if the condition be broken first so as my entry is lawfull in this case the confirmation will extinguish the condition And if the feoffee make a feoffment over absolutely to another and I confirme the estate of the second feoffee whether it be before or after the condition broken by this the condition is discharged If the Lord confirme the estate of his tenant in the tenements or one that hath a rent common
or profit out of land confirme to Lit. Sect. 535. 536. 537. the terretenant his estate in these cases notwithstanding this confirmation the signiory rent common c. doe continue and this shall not enure to extinguish it If the disseisee and a stranger disseise the heire of the disseisor Co. super Lit. 298. and the disseisee confirme the estate of his companion this shall not enure to extinguish the suspended right of the disseisee but when the heire of the disseisor shall reenter it shall be revived And if the grantee of a rent charge and a stranger disseise the tenant of the land and the grantee confirme the estate of his companionâ— this shall not enure to the rent suspended to extinguish it but after the reentry of the tenant the rent shall be revived If a man hold his land of me by Knights service rent suit of court Co. super Lit. 305. c. and I confirme his estate to hold of me by Knights service only for all manner of services and demands in this case albeit this doe abridge the service yet it shall not be construed to take away wardship reliefe aid to mary my daughter and make my sonne Knight and the like If I have an estate in land for my life and he in the reversion doth See before confirme the estate to me and my wife for the terme of our lives this shall enure only as a confirmation of my estate and not so as to give any estate to my wife But if I have a lease for life or yeares in right of my wife and he in the reversion doe confirme the estate to me and my wife To have and to hold to us for our lives this shall enure not only to confirme the estate but also to create an estate to me after my wives death And in the case of a lease for yeares it maketh our estate joint but in the case of a lease for life I shall take by way of enlargement of estate for my life after my wives death And if in this case the confirmation be to me and my wife To have and to hold the land to us two and our heires this shall enure to us in fee simple as Jointenants If land be let to husband Co. super Lit. 299. and wife To have and to hold the one moity to the husband for his life and the other moity to the wife for her life and the lessor confirme to them both their estate in the land To have and to hold to them and their heires in this case as to the one moity it doth enure only to the husband and his heires but as to the other moity they shall be Jointenants And yet if such a lease for life be made to two men by severall moities and the lessor confirme their estates in the land To have and to hold to them and their heires by this they are tenants in common of the inheritance If the disseisee confirme the estate of the disseisor To have and to Lit. Sect. 419. hold to him and his heires of his body engendred or To have and to hold to him for terme of his life this shall enure to him as a fee simple and shall confirme his estate for ever If my disseisor make a lease for life the remainder over in fee and Co. super Lit. 298. 297. I confirme the estate of the tenant for life this shall not enure to nor availe him in remainder And if the disseisor make a gift in tail the remainder to the right heires of the tenant in taile and the disseisee confirme the estate of the tenant in taile this shall not extend to the fee simple no more then if the disseisor make a gift in taile the remainder for life the remainder to the right heires of the tenant in taile and the disseisee confirme the estate of the tenant in taile for this shall extend only to the estate taile and not to the remainder for life or in fee. But if the disseisee in the first case confirme the estate of him in the remainder this shall enure to and availe the tenant for life And so if a disseisor make a lease for life and keepe the reversion and after the disseisee doth confirme to the disseisor this shall enure to the tenant for life And so if a disseisor make a lease for life to A and B and the disseisee confirme the estate of A this shall enure to B and make his estate good also in the other moity And so if there be two disseisors and the disseisee confirme the estate of one of them without saying more this shall enure to them both But if the confirmation be of the land To have and to hold the land to one in this case it may enure to him alone So if a disseisor enfeoffe A and B and the heires of B and the disseisee confirme the estate of B albeit it be but for his life yet this shall enure to both and to the whole fee simple If a lease be made for life to A the remainder to B for life and the lessor confirme their estates in the land To have and to hold to Co. super Lit. 299. them and their heires this shall enure as to the one moity to A in fee after the death of B and as to the other moity in fee to B after the death of A. If lands be given to two men and the heires of their two bodies Co. Idem begotten and the donor doth confirme their estates in the land To have and to hold the land to them two and their heires it seems this shall enure to them as a joint estate for their lives and after for severall Inheritances If the lessee for life or the disseisor doth make an absolute lease Lit. Sect. 516. 521. 519 520. 541. Co. 579. for yeares and he in the reversion or the disseisee doth confirme the estate of the lessee for yeares this makes the lease good for all the time So if the disseisor makes a lease for life and the disseisee doth confirme the estate of the lessee for life this makes the estate good for the life And if he in reversion confirme the estate of the termor but one houre this doth make it good for all the terme And if an estate for life or in fee be confirmed but for one houre it is a good confirmation for all the estate And if the disseisee confirme the estate of the disseisor To have and to hold for one houre yeare or for life or in taile this is a good confirmation for ever and makes his estate unavoidable And yet if the disseisee confirme the land Habendum the land for life or in taile c. contra If a voidable lease be made for forty yeares and the lessor confirme â—ier 52. 339 Co. 5. 81. the terme for twenty yeares this is a good confirmation of the whole terme
enure as releases howbeit it may be if they have words of surrender in them they may enure as surrenders So if there be lessee for years the remainder in taile the remainder Adjudge Trin. 5 Jac. B. R. Butlers case Surrender in fee and the lessee for years being a woman doth mary with him in the remainder in fee and he in remainder in taile release to him in remainder in fee this is a void release So if tenant for life release to him in remainder in fee or in taile it seems this is void and cannot enure as a release So if there be tenant for life Lit. Sect. 598. Plow 556. Co. super Lit. 345. the remainder in taile the remainder in fee and he in remainder in fee release to the tenant for life this will not increase his estate And if the tenant in taile in this case release to the tenant for life his estate shall be no longer increased hereby then for the life of the tenant in taile 2. He to whom the release is made Co. super Lit. 270. 273. 265. 2. In respect of the estate of him to whom the release is made must have some estate in possession in deed or in law or in reversion in deed in his own or anothers right of the lands whereof the release is made to be as a foundation for the release to stand upon for a release which must enure to enlarge an estate cannot work without a possession joined with an estate And therefore the relessee must be lessee for life years or tenant by Statute merchant staple elegit or as gardian in chivalry that doth hold the land over for the value or at least he must be tenant at will And therefore if a man let his land to another for term of years Lit. Sect. 459. Plow 423. Dier 4. 15. H. 7. 14. to begin presently and after the lessor or his heir doth release to the lessee after his entry and being in possession all his right in the land this is good to enlarge the estate according to the time set down in the release but if the release be before the term begin or after the term begin and before the lessee have entred howsoever if any rent be reserved on the lease it may enure and be good to extinguish that rent yet it is not good to enlarge the estate And yet if a tenant for 20. years in possession make a lease to B for 10. years and B enter and he in the reversion release to the first lessee for years this is a good release to enlarge the estate So if a man make a lease for years the remainder for life or years and the first lessee doth enter in this case a release to him in remainder is good to enlarge the estate So if I grant the reversion of my tenant for life to another for life and after release to him and his heires this is a good release to enlarge the estate So if a man make a lease for life or yeares to a feme sole and Co. super Lit. 273. shee take a husband and he in the reversion release to the husband and his heires this is a good release to enlarge the estate according to the words of the release But if the case be so that a man had an estate in possession of land and he be now out of the possession of it and have but a right only to it or if he have a possession only and no estate or if he have neither estate nor possession in these cases a release made to such a one will not availe to enlarge his estate And therefore if a man make a lease for life the remainder for Co super Lit. 270. life and the first lessee dieth and the lessor release to him in remainder for life before his entry this is a good release to enlarge his estate for he hath an estate of free hold in law capable of enlargement by release before entry But if there be lessee for life the remainder Lit. Sect. 451. for life the remainder in tail the remainder in fee and the lessee for life is disseised during the possession of the disseisor he that hath right doth release to one of them in the remainder this is void So if lands be given in taile or leased for life and the donee Lit. Sect. 455 456. or lessee is disseised and during the possession of the disseisor the donor or lessor doth release all his right to the donee or lessee this is void and will not enlarge his estate howbeit if there be any rent reserved on the estate it will extinguish the rent So if the tenant Co. super Lit. 273. by the curtesie grant over his estate and after he in reversion doth release to the tenant by the curtesie in this case his release is void and will not enlarge his estate So if an Infant make a lease for life and the lessee granteth the estate over with warranty and the Infant at full age doth bring a Dum fuit infra aetatem and the tenant doth vouch the grantor who doth enter into the warranty and the demandant being the Infant doth release to him and his heires this will not enlarge his estate for in truth he had no estate before and that which is not cannot be enlarged And if lessee Dier 251. for life or yeares release to him in remainder or reversion this cannot be good as a release howbeit if there be apt words it may amount to a Surrender * Co. super Lit. 271. Lit. Sect. 461. And if a man have only an occupation of land as tenant at sufferance as when a lessee for yeares doth hold over his terme or the like no release to him can work any enlargement of estate for albeit he have a possession yet hath hee no estate and besides in this case there is no privity which is the third thing required in these releases For as in all Co. super Lit. 296. Lit. Sect. 461. these releases that enure by way of increase or passing an estate 3. In respect of privity there must be some estate in the relessor and the relessee so there must be some privity in estate between them at the time of the release made for an estate without privity is not sufficient And therefore it must be between donor and donee lessor and lessee and the like as in the cases before between him in reversion and the lessee for life or yeares tenant by Statute Merchant or Staple or by Elegit or Gardian in Chivalry that keepeth the land for the value And if tenant for life lease for yeares and he in the reversion and Plow 541. the tenant for life doe joine together and release to the lessee for yeares this is a good release to enlarge the estate So if he Co. super Lit. 273. in reversion release to the husband that hath an
estate in the right of his wife only for life or yeares this is a good release †Dier 4. Co. 3. 22. So if lessee for yeares make a lease of the land but for part of the terme the privity continueth still and therefore a release to him is good to enlarge the estate But if he assigne over all the terme then the privity is gone and therefore a release made to him afterwards is void And then a release made to the assignee of the terme is good to enlarge the estate And if a disseisor make a lease for life or Plow 540. 14 H. 7. 4. Lit. Sect. 518. yeares and after he and the disseisee joine together to make a release to the lessee for life or yeares this is a good release to enlarge the estate But if the disseisor in this case make a lease for life or yeares and the disseisee or he that hath right release to the tenant for life or yeares in this case the release is void for want of privity And if there be lessee for yeares the remainder for life and Co. super Lit. 273. he in reversion release to the lessee for yeares or him in remainder for life and his heires all his right this is a good release to work an enlargement of estate So if one make a lease for life and grant the reversion for life and then the lessor doth release to the grantee of the reversion and his heires this is a good release to enlarge the estate of the grantee and here is privity enough If A be Bro. Release 71. tenant for life the remainder to B in taile the remainder to C for life the remainder to A in fee and A die and his heire doth release all his right to B being in possession this is a good release and gives the fee simple But if A make a lease to B for life and the lessee maketh a lease Co. super Lit. 273. Lit. Sect. 516. for yeares and after A in the life time of the tenant for life maketh a release to the lessee for yeares this release is void and will not enlarge his estate for want of privity So if a man make a lease for twenty yeares and the lessee make a lease for tenne yeares and the first lessor doth release to the second lessee and his heires this release is void So also if the donee in taile make a lease for his own life and the donor release to the lessee and his heires this release is void So also if the donee in taile make a lease for his owne life and after the donor release to the donee and his heires it seems this is not a good release Also one Jointenant or coparcener may Bro. Release 77. Perk. Sect. 84. release to another and thereby transferre all his estate and give the whole interest unto his companion and this is a good release to passe all his or her part of the land And if there be three Jointenants in fee and they make a lease for life and after two of them release all their right in the land to the third this is a good release So if one make a lease for life to another and after the grant the reversion to seven and the tenant for life doth atturn and after four of the seven release all their right to the other three and after one of the three release to the other two these are good releases So if a lease for yeares be made to two to begin at a day to come a release by one of them to the other is good to give all the terme and all the land to the relessee But it seems one tenant in common 1â— E. 4. 3. cannot release to another tenant in common The fourth thing that is required in such a release is sufficient 4. In respect of the words â—â— whereby it is made 4â— Co. super Lit. 273. 264. 301. words in law not only to make a release which is required in all releases but also to raise and create a new estate For this therefore know that all releases of what kind soever are commonly made by these words Remisisse Relaxasse quietum clamasse as being the most ancient and significant words for this purpose And a mongst these the word Release is the most effectuall word as that which doth include the other two and as that which is the proper and peculiar word for this kind of conveyance But there are other 9 H. 6. 35. Dier 116. Lit. Sect. 544. Co. super Lit. 264. Dier 307. Co. 9. 52. words also by which a release may be made as Renunciare Acquietare c. And therefore it is held that if one have common in anothers land and he by deed release it to him thus Renuntio Communiam meam c. this is a good release And if the lessor doe but grant to his lessee for life that he shall be discharged of the rent this is a good release of the rent And it is a rule That by what words a debt or duty may be created by words of a contrary signification it may be released And therefore if one doe knowledge himselfe to be satisfied and discharged a debt this is a good release of the debt And for words to raise the estate it is usuall and most Co. super Lit. 273. Lit. Sect. 465. 468 469. safe to specifie in the deed what estate he to whom the release is made shall have and in most cases this is needfull for it is generally true That when a release doth enure by way of enlargment of estate no inheritance in fee simple or fee taile can passe without apt words of inheritance And therefore if I make a lease of land to another for his life and after I release to him all my right without more saying in the release hereby his estate is not enlarged But if I release to him and his heires by this he hath a fee simple And if I release to him and the heires of his body by this he hath an estate taile But where a release worketh by way of mitter le estate there in some cases there needs not any words of inheritance as in cases where releases are made between Jointenants or coparceners as where a joint estate is made to the husband and wife and a third person and their heires and the third person doth release all his right to the husband alone or to the wife alone So if there be three Jointenants and one of them doth release to one of the other two in all these and such like cases there needs not any limitation of the estate for the release is good without it In every good release in deed that doth tend and enure to give Lit. Sect. 466 Co. super Lit. 265. Co. 5. 70 71. 1. 112. 8. 132. 3. When it doth enure by way of passing and extinguishment of a right or title only 1. In
respect of the estate of the relessor discharge or extinguish any right or title of lands it is also further requisite 1. That he that doth make it hath at the time of the release made some right or title to release As where one doth disseise me of land and I release to him all my right in the land this is a good release So if one disseise my tenant for life and I being the next in remainder or reversion in fee do release to him that did make the disseisin this is a good release So if the husband make a lease for life and then take a wife and dieth and the wife release her dower to him in reversion this is a good release And so also if after the mariage a man make a lease for life the remainder in fee and shee release all her right to him in remainder in fee or to him in reversion this is a good release and will barre her for ever And therefore if the Relessor have only a possibility of a right Lit. Sect. 446. Co. 10. 47. 42. super Lit. 265. or a right happen to come to him after the release this is not sufficient to make the release good And therefore if the father be disseised and the son before his fathers death release all his right to the disseisor and after the father dieth so that the right doth descend this is no good release to bar the Relessor of his right So if there be grandfather father and son and the father disseise the grandfather and make a feoffement and the son release in the life time of his father and after the father and grandfather die this release in this case will not bar him So if a lease Co. 10. 57. be made for life the remainder to the right heirs of I S and the lessee is disseised and the eldest son of I S living his father doth release to the disseisor this release is void So if the conusee of a statute c. doe release to the conusor all his right in the land this is void Co. 5. 70. and he may sue execution after notwithstanding Or if the Relessor Co. super Lit. 265. have only a power this is not sufficient to make the release good And therefore if a man by his will devise that his executors shall sell his land and dieth and the executors release all their right and title in the land to the heirs this release is void 2. In all cases of a release of a bare right of a freehold in lands 2. In respect of the estate of him to whom the release is made or tenements he to whom the release is made must at the time of Co. super Lit. 267. the making thereof in any case have the freehold in deed or in law in possession or some state in remainder or reversion in deed and not in right only in fee simple fee tail or for life of the lands whereof the release is made for rights of entry and actions and the like are not to be transferred to strangers but are thus to be released and such releases are good As if the disseisee release to the disseisor himself who hath the freehold in deed or to the heir of the disseisor before his entry who hath the freehold in law or to the lessee for life of the disseisor these releases are good So if a disseisor make a lease to A and his heirs during the life of B and A die and the disseisee release to his heir before his entry this is a good release So if a fine sur conusance de droit come ceo c. or sur conusance de droit only which is a Co. super Lit. 266. 275. Lit. sect 448. 1 H 6. 4. Dier 302. feoffment on record be levied or if tenant for life by agreement of him in the reversion surrender to him in the reversion or if a man doe bargain and sell his land by deed indented and inrolled or uses are raised by covenant on good considerations in all these cases the conusee him in reversion bargainee and cestuy que use have a freehold in law in them before entry And therefore a release to them of the right of the land by him that hath it is good and will bar the Relessor But otherwise it is in cases of Exchange Partition or upon Livery within the view for in these cases no release is good untill an actuall entry made for till then they have neither freehold in right nor law So if a disseisor make a gift Lit. Sect. 449 in tail or lease for life or years of the land and keep the reversion and then the disseisee or his heir release to the disseisor all his right this is a good release to bar his right for ever So if Co. super Lit. 260. Lit. Sect. 455 456. the heir of the disseisor be disseised and the first disseisee doe after release to him all his right this is a good release to bar him So if a donee in tail discontinue in fee and the donor release to the discontinuee and die this is a good release against the donor So if the donee in tail be disseised and after the donor release to the donee all his right this is good but in this case nothing of Extinguishment the reversion will passe by the release for the donee had then nothing but a right But if any rent be reserved on the estate tail the rent is gone by the release So if a lease be made to one for life rendring rent and the lessee is disseised and the lessor release to the lessee and his heirs all his right in this case albeit the rent be extinct yet nothing of the right of the reversion doth passe And yet if a woman that hath right of dower release to the guardian in Chivalry this is a good release and her right or title of dower is gone But if a disseisor make a lease for years and the disseisee release to the lessee for years this release is void because he hath no freehold But if he make a lease for life and the disseisee release to the lessee for life this is a good release So also a release to the disseisor after the lease for years made is good And Co. super Lit. 265. if lessee for years be ousted and he in the reversion disseised and the disseisor make a lease for years and the first lessee release to him this is a good release Also in some cases a release made to Lit. Sect. 448 449 450 451. Co. 8. 151. one that hath neither freehold in deed nor freehold in law is good when he hath an estate in reversion or remainder as in the case before where a release is made by the disseisee to the disseisor after he hath made an estate for life So if the demandant in a reall action release to the tenant that comes in by
receipt upon a prayer of aid or voucher upon a warranty this is good And yet if it be before the receipt or entry into the warranty or it be by any other besides the demandant it is void So if the tenant in a reall action alien hanging the precipe quod reddat against him and after alienation the plaintiff release all his right in the land to him this is a good release So if a disseisor make a lease for life the remainder to another for life the remainder to a third in taile the remainder to a fourth in fee and the disseisee release to either of them in remainder this is a good release But if in this case tenant for life be disseised and after he that hath right the possession being in the disseisor doth release to either of them in remainder this is a void release But in all the cases of a release of a bare Co. super Lit. 275. Lit. Sect. 470 471. Co. 10. 48. 3. In respect of privity right to him that hath an estate of a freehold in deed or in law generally there needs no privity to make the release good as in the cases before of a release made to the tenant for life of the disseisor and them that follow For if tenant for life make a lease to another for life of the lessee the remainder over in fee and the first lessor release al his right to him to whom the tenant made the lease for life this is a good release and a perpetuall bar albeit the release be not to him and his heirs And so it is in case of a reversion If lessee for years be ousted and he in the reversion disseised and the disseisor make a lease for years and the lessee that is ousted doth release to the lessee of the disseisor this is a good release And yet if the disseisee doe release to the lessee for years of the disseisor this is void If lessee for a thousand years be ousted by the lessor and he make a lease for two years and the lessee for a thousand years release unto him this is a good release But if a lessor disseise his lessee for life and make a lease for a thousand years and the lessee for life release to this lessee of a thousand years this release is void If one be disseised and after another doth disseise him and the Co. super Lit. 277. Lit. Sect. 473. 470 471 478. disseisee release to the last disseisor this is a good release So if A disseise B who infeoffeth C with warranty who infeoffeth D with warranty and E disseiseth D to whom B the first disseisee releaseth this is a good release and doth defeat all the mean estates and warranties So if my disseisor lease for life and the lessee for life alien in fee and I release to the alienee all my right c. this is a good release and will bar me of my entry but if my entry be gone as if I lease for life and my lessee be disseised and that disseisor is disseised and I release to the second disseisor in this case the first disseisor may enter upon the second So if my disseisor in the case aforesaid make a lease for life and the lessee for life maketh a feoffment to two and I release to one of the feoffees this is a good release and will bar me and my disseisor also So if tenant for life let the land to another for the life of the lessee the remainder to another in fee and the lessor release to his tenant for life this is a good release If one that hath a son within age be disseised and die and the disseisor die seised and the land descend to his heir and a stranger abate to whom the son when he comes of age doth release this is a good release So if one be disseised by an infant which doth alien in fee and the alienee die seised and his heir entreth the disseisor being within age and the disseisee release to the heir of the alienee this is a good release But where an inheritance or 9 H. 6. 43. an estate for life is released to one that is but tenant for years the release is not good without privity And therefore if tenant for Co. 10. 48. life or in fee release to the lessee for years of his disseisor this is not good But the release of a term of years to the lessee for years of him that doth eject him is good enough without privity as in the case before But here note that in cases of a void release of a right to an inheritance Co. super Lit. 265. Warranty or freehold where there is a warranty contained in the deed the warranty may be good and be used by way of rebutter albeit the release be void As if the son of the disseisee release with warranty in the life time of his father or there be grandfather father and son and the father disseise the grandfather and make a lease with warranty and die in both these cases albeit the son be not barred by the release yet he is barred by the warranty 4. Such words as will make a good release in the cases of releases Co. super Lit. sect 467. 4. In respect of the words whereby it is made that enure by way of enlargement of estate will make a good release in these cases And note that this kinde of release is good without any limitation or specifying of the estate for by a release of all a mans right without saying To have and to hold to him and his heirs c. in all the cases before he that makes the release is barred of his right for ever for if I be seised of an estate in fee by wrong and he that hath right release to me all his right albeit it be but for one houre yet this is a good release for ever * 7. What Releases may be made of other things And what shall be said a good Release in Deed of such things Or not And by what words Of a seigniory rent-service common or the like If there be Lord and tenant and the Lord release to the tenant Lit. sect 480. Co. super Lit. 280. 305. Perk. sect 70. all his right that he hath in the seigniory or all his right that he hath in the land c this is a good release to extinguish the seigniory And in this case there needs no words of inheritance or limitation for by release of all the right in the seigniory the same is extinct for ever without saying to him and his heirs And yet in this case the Lord may by apt words release his seigniory to the tenant only in tail or for life and it shall be good so long But if a Lord grant to his tenant that he shall doe his suit to another Manor of the Lords or that the tenant shall give him yearly twelve
pence for his suit this grant will not extinguish and determine the services or tenure If there be Lord and tenant and the tenant be disseised and Lit. sect 457. Co. 10. 48. super Lit. 268. after the Lord release all his right c. to the tenant by this release the service or seigniory is extinct for albeit a right regularly cannot be released to him that hath but a bare right yet a seigniory may be released and extinct to him that hath but a bare right in the land But if the tenant make a feoffment in fee and then the Lord release all his right c. to the tenant this is not good to extinguish the seigniory or services but it will discharge all the arrearages If a rent-charge common of pasture or any other profit apprender Lit. sect 480. 536 537. Co. super Lit. 305. Lit. sect 455 456. Co. super Lit. 273. be issuing out of my land and he that hath it doth release it to me this is a good release and will extinguish it But if I be disseised of the land and have but a right at the time of the release made the release is not good as it is in the case of a rent-service and a seigniory But if lands be given to me in tail or for life rendring rent and I be disseised and after the donor release to me all his right in the land this is a good release and shall extinguish the rent So if in this case where I am tenant in tail and I make a feoffment in fee rendring rent and after I release to the feoffee this is a good release and hereby the rent is extinct And if two coparceners be of a rent and one of them take the terretenant to husband and after either of them release these releases will be good If one disseise me of land and then grant a rent-charge out of Lit. sect 527. Co. super Lit. 300. the land and I reciting the same grant release to the grantee this release it seems is good and will bar me so as after my reentry I shall not be able to avoid it If two have the grant of the next advowson or avoidance of a Co. super Lit. 270. Of an Advowson c. Church before it be void one of them may release to the other but afterwards they cannot If A make a feoffment in fee gift in tail lease for life or years to Co. 1. 112. Perk. sect 823. 764. Of a Condition B on condition that upon such a contingent it shall be void in this case A may before the condition broken release all his right in the land or release the condition to B and this will be good to make the estate absolute and to discharge the condition So if a feoffee on condition make a gift in tail or lease for life and after the feoffor release to the donee or lessee this is a good release to discharge the condition So if a copyholder surrender to the use of anothrr on condition and this is presented to be without condition and after the surrendror doth release to him to whose use the surrender was made all his right c. this is a good release and doth extinguish the condition But if a disseisor make a feoffment on condition and the disseisee release to the feoffee on condition howsoever this doth bar the right of the disseisee yet it doth not discharge the condition Where a power or authority is such that doth respect the benefit Co. 1. 112 113 173 174. Of a power of revocation of the relessor as in the usuall cases of power of revocation of uses when the feoffor c. hath power to alter change determine or revoke the uses being intended for his benefit and he release to any one that hath a freehold in possession reversion or remainder by the former limitation this is a good release and doth extinguish the power and make the estates that were before defeasible absolute and it doth seclude him from any power of alteration or revocation But if the power be collaterall or to the use of a stranger and nothing to the benefit of him that makes the release as if A make a feoffment to B to divers uses provided that B shall revoke the uses and B release to any one of them that hath a use this doth not extinguish the power as in case where the power is given to A and A doth release it If a feoffment be made with warranty and the feoffee release Of a warranty the warranty this doth extinct it And so it is of other warranties But if tenant in tail release the warranty annexed to his estate tail this doth not extinguish this warranty Any man may release any debt or duty due to himself Also Of debts and other duties personall Bro. Release 88. 21 H. 7. 29. Co. 5. 27. a man may discharge or release any thing due or any wrong done to his wife before or after the mariage And therefore if a trespasse were done or a promise were made to my wife before 1. In respect of the persons the mariage I may at any time during the mariage release this So if any wrong be done or obligation statute or promise Husband and wife made to her alone or to her and me together at any time during the mariage I alone may release and discharge this And if my wife be an executrix to any other man I may release any debt or duty due to the testator And if a legacy be given to a woman sole to be paid at Michaelmas Per ch Justice B. R. Mich. 17 Ja. next and I mary with her and I release the legacy before the day it seems by this the legacy is gone An infant executor may release a debt duly paid unto him of Infant Co. 5. 27. the testators debt But if he release that which he doth not receive it is a void release And regularly the release of an infant is void An executor before probate of the Will may release a debt or Co. 5. 27. 9. 39. 2. In respect of the time duty due to the testator and this release is good to bar him A future or contingent promise may be released and discharged Trin. 14 Ja. in Eltons case before the contingent happen A debt on an obligation or rent may also be released before the day of payment as well as after but not by the same words And therefore if one promise to I S that upon the surrender of I S he will pay him an hundred ten pound and after the promise and before the surrender he release this debt this doth discharge the debt But if the promise be that if the surrendree shall sell the land and shall have five hundred pound that then he shall pay to the surrendror an hundred pound more and the surrendror before sale release this
doe any thing against them By this release also of all actions a debt due to be paid upon a statute or an obligation at a day to come albeit the release be before the day is discharged and by this also the statute it self if it be at any time before execution is discharged And if one be to pay forty pound at four days and some of the days are past and some to come and the debtee make such a release by this the whole debt is discharged Also in a Scire facias upon a Fine or a Judgement this release is a good plea in bar But this release of all actions will not discharge Executions or bar a man of taking out of Executions except it be where it must bee done by Scire facias Neither will it discharge or bar a man of suits by Audita Querela or writ of Error to reverse an erroneous judgement neither will it discharge covenants before they be broken nor will it discharge any thing for which the relessor had no cause of action at the time of the release made as if a woman have title of dower and doe release all actions to him that hath the reversion of the land after an estate for life or a man is by an award to pay me ten pound at a day to come and before the time I make such a release or I make a lease rendring rent or an annuity is granted to me and before the rent-day I make the lessee or the grantor such a release in these cases and by a release in these words without more the dower debt rent or annuity is not discharged And if a man have two remedies or means to come by land Lit. sect 496 497. as action and entry or by goods as action and seisure or the like in this case by a release of all actions he doth not barre himself of the other remedy Et sic è converso And if a man doth covenant to build an house or make an estate and before the covenant broken the covenantee doth release unto him all actions by this the covenant it self is not discharged And yet after the covenant is broken this release will Co. super Lit. 292. discharge the action of covenant given upon that breach By a release of all a mans right into any lands or tenements Of all right Co. 8. 151. Plow 484. 6 H. 7. 8. Co. 3. 29. 6. 1. super Lit. 345. without more words is released and discharged all manner of rights of action and entry the relessor hath to in or against the land for there is jus recuperandi prosequendi intrandi habendi retinendi percipiendi possidendi and all these rights whether they accrue by fine feoffment descent or otherwise are extinct and discharged so that if the relessee have gotten into the land of the relessor by wrong by this release the wrong is discharged and the relessee is in the land by good title Also by this release are discharged and released all titles of dower and titles of entry upon a condition or alienation in mortmain And if a woman have title of dower after an estate for life and make such a release to him in reversion this doth barre her By such a release also from the Lord to the tenant the services are extinct But this release will not bar a man of a possibility of a right Co. 10. 47. super Lit. 289. that he hath at the time of the release or of a right that shall descend to him afterwards And therefore if the conusee of a statute before Execution release all his right into the land to the terretenant or the heir of the disseisee in the life-time of his father doe release to to the disseisor all his right these releases doe not bar them Nor will this release bar a man of an Audita Querela and such like things And yet if the tenant in a reall action after the demandant hath recovered the land release to him all his right in the land this doth bar him of a writ of Errour for any errour in the proceeding in that suit And if there be Lord and tenant by fealty and rent and the Co. super Lit. 150. Dier 157. Lord by his deed reciting the tenure doth release all his right in the land saving his said rent by this release the right of the seigniory save only of the seigniory of the rent and fealty is extinct And if the Lord release to his tenant all his right to the land and seigniory salvo sibi dominio suo c. hereby the services only not the tenure is extinct And if one have a rent-charge out of my land and make such Perk. Sect. 644. a release of all his right to the land to me that am the terretenant without exception of the rent hereby the rent is extinct and gone for ever By a release of all a mans title into lands or tenements without Kelw. 484. 6 7 8. Co. super Lit. 265. 345. more words is released and discharged as much as is released Of all title by the release of all a mans right and both these releases have the like operation for howsoever title strictly and properly is where a man hath lawfull cause of entry into lands whereof another is seised for which he can have no action yet it is commonly taken more largely and doth include a right also And Titulus est justa causa possidendi quod nostrum est By a release of all entries or rights of entry a man hath into Co. 8. 15â—â— Or entry or right of entry lands without more words a man is barred of all right or power of entry into those lands upon any right whatsoever And if a man have no other means to come by the land but by an entry and he hath released that by these words he is barred for ever But if one have a double remedy viz. a right of entry and an action to recover his right by and then release all entries by this he is not barred of his action By a release of all actions reall without more words are discharged Of actions reall Lit. sect 492 493. 495. Co. 8. 151. Lit. sect 115. 500. Co. super Lit. 288 289. all reall and mixt actions then depending and all causes of reall and mixt actions not depending And therefore all causes of suing of assises writs of Entry Quare Impedit actions of wast and the like which the party hath at the time of the release made are hereby discharged But this release will not bar him that doth make it of any causes of action that shall arise and accrue afterwards Neither will it bar him of an appeal of death or robbery writ of Error or any such like thing Nor of any thing which a release of all actions will not bar And yet when land is to be restored or recovered by judgement in a writ of Error this
discharge a rent before the day of paiment come By a release of all promises or Assumpsits without more Of promises Adjud Hil. 16 Jac. B. R. Briscoe vers Heires Co. 10. 51. words a man may barre himselfe of a contingent or future thing that by other words could not be released as if a man promise to me that if I S doe not pay me one hundred pound the tenth of March next that he will pay it me the twentieth of that moneth and before the time I release to him all actions and demands this will not discharge the promise But if I release to him all promises this will barre mee Et sic de similibus By a release of all Judgements without more words is he Lit. Sect. 507. Co 8. 151. super Lit. 290. that maketh it barred of the effect of any Judgement he hath Of Judgements Of Executions against the relessee for if execution be not taken out he is now barred of it And if the relessee or his land c. be in execution he and it shall be discharged thereof by Audita Querela And by a release of all executions without more words a man is barred of taking or having out of any execution upon any Judgement either before Scire facias or after But if after execution be made by Capias ad Stat. Elegit or fieri facias the Audita Querela plaintife release to the defendant all executions he cannot plead such a release but he must have an Audita Querela and that he may have to discharge him of execution By a release of all appeales are discharged all appeales of Co. super Lit. 287 288. felony of death of robbery of rape of burning of larceny Of Appeales depending and all causes not yet moved also By this release of all advantages it seems actions of debt upon Of Advantages account are discharged Co. 8. 150. By a release of all conspiracies all conspiracies past are discharged Kelw 113. Of Conspiracies and such also as are only begun and shall be prosecuted and perfected after the release are likewise hereby discharged By a release of all forgeries before publication the forgery is Of Forgeries Co. 10. 48. discharged but not the publication and therefore the relessor may take his remedy for that notwithstanding A release of all demands is the best release of all and this Of Demands or Clâ—imâ—s Co. super Lit. 291. Co. 8. 54. Lit. Sect. 501 509 510. word is the most effectuall word of all and doth in deed include and comprehend within it most of all the releases before By a release therefore of all demands without more words are released all rights and titles to land warranties conditions annexed to estates before they be broken or performed and after they be broken Also by this release are released and discharged all Statutes Obligations Contracts Recognisances Covenants Rents Commons and the like Also all manner of actions reall and personall Appeales Debts duties Also all manner of Judgements Executions Also all Annuities and Arrearages of Annuities and Rents And therefore if a man have a title of entry by force of a condition c. or a right of entry into any lands by such a release the right and title is gone And if a man have a rent-service rent-charge estovers or other profit to be taken out of the land by such a release to the tenant of the land it is discharged and extinct And therefore if a termor for yeares grant the land by indenture to A rendring rent and at the end of the first yeare Adjudg B. R. pasc 17 Jac. Wottons case he release to the grantee all demands the rent is hereby extinct during all the time And a release of all claimes it seems is much of the same nature But by a release of all demands or of all claimes is not released Co. 5. 70. any such thing as whereof a release cannot be made as a meere possibility or the like Neither will this release discharge a covenant or promise that Hil. 4 Jac. B. R. Hancocks case adjudge is future and contingent before it be in being Nor a covenant before it is broken and therefore if the lessee of a house covenant to leave it as well in the end of his terme as it was in the beginning of his terme and before the end of the terme the lessor release to the lessee all demands this is no barre to an action brought for a breach of the covenant afterwards And if a man in consideration of a summe of money given to Hil. 6 Jac. B. R. Belcher Hudsons case him by a woman sole assume to her that if shee mary one M that he will pay to her after the death of M one hundred pound by the yeare if shee survive him and shee mary him and the husband release all demands and then die this is no barre to the duty So if one promise a woman that if shee will mary him that he will leave her worth one hundred pound if shee doe survive him and before the mariage shee release to him all actions and demands this doth not discharge the promise And note that all these words are of the same force when they are joined with other words as when they are alone Note If two tenants in common of land grant a rent-charge of Co. super Lit. 267. forty shillings out of it 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 is severall If one have severall causes of action against two and make a joint release to them this shall be taken to be a release of all 19 H. 6. 4. joint and severall causes of action So if an executor have some cause of action for himselfe and Bro. Release 31. 29. some for his testator and he release all Actions indefinitly this release doth discharge both sorts of actions If the tenancy be given to the Lord and a stranger and to the heires of the stranger and the Lord release to his companion Co. super Lit. 280. all his right in the land this shall enure not only to passe his estate in the tenancy but also to extinguish his right in the Seigniory If there be Lord and tenant of two acres and the Lord release all his right in one of them to the tenant hereby the Perk. Sect. 71. Bro. Release 85. 9 E. 3. services are extinct for both So if one have a rent charge out of twenty acres and release all his right in one acre hereby all the rent is extinct And yet if A lease white acre to B for life rendring rent and afterwards doth release part of the rent this is good only for such part If I be seised of land in fee and I make a lease of it to one for life and after I
release all my right in the land for the life Bro. Release 65. of the tenant for life so as neither I nor my heires shal have claim or challenge any thing or right in that land for the life of the tenant for life by this release nothing is extinct or discharged but the causes of action of wast that were then and notany cause that shall happen afterwards Dier 307. If a Statute be entred into the twentyeth of Aprill and the conusee by a release dated the ninteeneth of Aprill meaning to except this Statute doth release all debts and demands till the making of the release by this release the Statute is discharged But if the words had been to the day of the date of Per Justice â—odridge Trin. 14 Jac. the release contra If a promise be of two parts and he to whom it is made doth release one part it seems this is a release of both â—o 9. 53. If A 1â— Ian. enter into an obligation of forty pound to B and B 13o. Iuly make a deed thus It is agreed between B on the one part and A on the other part that upon good considerations B doth acknowledge himselfe fully satisfied and discharged of all bonds debts or demands whatsoever from the beginning of the world to this day by the said A and that he the said B is to deliver all such bonds as he hath yet undelivered to A except one bond of forty pound yet unforfeit which is for the paiment of c. which was the obligation before in this case it was adjudged a good release and discharge of all Lit. Sect. 467. 470. Co. super Lit. 273. 264. 280. Kelw. 88. Co. super Lit. 9. the bonds excepting that one and that this exception shall goe to all the premisses A release of a right or an action cannot be for a time but 3. In respect of the time or estate it will be for ever And therefore if a release be made to any one that hath a fee simple by wrong by him that hath the right for one houre one yeare for life or yeares this is a good release for ever And if the disseisee release all his right in the land to the disseisor without naming his heires or setting down any time how long the relessee shall have the land or the right of the disseisee therein this is a good release for ever and doth make the estate of the disseisor good for ever and so doth make a good estate in fee simple without these words his heires c. And if the disseisor or his heire make a gift in taile or a lease for life and the disseisee release all his right to the donee or lessee for life To have and to hold for life only this is a good release of his right for ever But if the disseisee doe disseise the heire of the disseisor and make a lease for life which is a release in law by this the right is released during that time only So if one Jointenant or parcener release to the other all his right in the land without the words heires or any more word this release doth give to his companion his whole interest forever And when the Lord or grantee of a rent release to the tenant or terre-tenant generally by these releases a fee simple is transferred without any words of heires c. And yet the Lord may release his Seigniory to his tenant to hold to him in taile or for life and this shall be taken and enjoyed accordingly But if the Lord doth release the Seigniory to his tenant without any words of heires put in the deed the same is extinct Lit. Sect. 545 546. 465. Plow 556. Dier 263. And if I let land to a man for terme of yeares and after I release to him all my right which I have in the land without using any other words in the deed or release to him To have and to hold for his life in both these cases he hath an estate for his life only And if I lease land to a man for his owne life and after release to him To have and to hold for his owne life hereby he hath but an estate for his owne life But if I make a lease to him for anothers life and after release to him Habendum to him for his owne life by this he hath an estate for his owne life But if I be seised of land in fee simple and let it to another for life or yeares and then release all my right to him To have and to hold to him and his heires hereby he hath the fee simple And if I release all my right to him To have and to hold to him and the heires of his body hereby he hath an estate taile And if one be seised in fee of a rent service or charge and Lit. Sect. 549. grant it first for life and then release it to the grantee To hold to him and his heires or to him and the heires of his body this shall enure to an enlargement according to the agreement But if one grant a rent-charge out of his land de novo and after release to the grantee all his right in the rent To have and to hold to him in fee simple or fee taile this doth not enlarge the estate And if tenant in taile or for life make a lease for years Lit. Sect. 606. 610. 24 E. 3. 28. and after by deed doth release all his right to the lessee for yeares in possession to hold to him and his heires for ever this will not make the estate of the lessee good for longer time then the life of the relessor If one make a lease for tenne yeares the remainder for Co. super Lit. 273. twenty yeares to another and he in remainder release all his right to the lessee for tenne yeares in this case the relessee hath an estate for thirty yeares and no lesse for one lease for yeares cannot drowne in another If I let land to a woman sole for her life or for yeares Lit. Sect. 526. Co. super Lit. 299. 300. and shee take a husband and after I release to them two to hold for their lives this shall enure no further then the intent and in the first case he shall hold jointly with his wife but in her right whiles shee doth live and after for his owne life if he survive and in the last case they shall have the free-hold jointly If there be Lord and tenant by fealty and rent and the Co. super Lit. 280. Lord granteth the Seigniory for yeares and the tenant atturneth and the Lord releaseth his Seigniory to the tenant for yeares and to the tenant of the land generally by this the Seigniory is extinct for ever and the estate of the lessee also But if the release be to them and their heires then the lessee shall have the inheritance of the one moity and the
That the debt recovered against the defendant shall be levied of my goods and chattels c. And these also are much of the nature of the former kinde of Recognisances And all Prerogative Obligations made to the King are of the nature and have the force of a Recognisance Statutes and Recognisances are sometimes single without any Defeasance and sometimes they are double i. e. With a Defeasance or Condition upon the performance whereof the same are to be avoided The Debtor or he that doth enter into the Statute or Recognisance Conusor Co. â—â—e is called the Recognisor or Conusor and the Debree or hee to whom it is made is called the Recognisee or Conusee To make a good Statute or Obligation of Record the 3. What shall be said a good Statute or Recognisance and what not First in respect of the persons before whom it is acknowledged forme prescribed must bee pursued 1. In respect of the persons Dyer 35. Litt. Broo. Sect. 484 511 F. N. B. 267 a. before whom And therefore the Statute Merchant or Staple or the Recognisance founded upon the Statute of 23 H. 8. may not bee acknowledged before any others besides the persons appointed by the Statutes Neither may any other Recognisance bee acknowledged before any but such as either have power ex Officio and by their Offices to take them or have speciall Commission so to doe And therefore a Recognisance Dyer 220 taken by a Constable is void If a Recognisance bee made to the Lord Keeper and two others and it bee acknowledged before himselfe this is void as to him 2. In respect Secondly in respect of the manner of making it of the manner of making and acknowledging of it And therefore if the substantiall forme appointed by the Statutes be not observed it will be void If therefore a Statute Merchant be not Hollingworth versus Ascughe Pasche 35 El. Co. B. Adiudge sealed with the Seale of the Dâ—btor and there bee not a Seale of two peeces annexed to it this is no good Statute neither can it take effect as a Statute howbeit in this case if it be delivered by the party it may take effect as an Obligation But if Obligation the variance from the Statutes bee only in some circumstance this will not hurt a Statute or a Recognisance And therefore it is held That albeit there bee no time set for the payment of the money in the Statute yet the Statute is good for then it is due presently And albeit the Statute be written Perk. 3. Iustices Co. B. Trin. 22 Iac. with anothers hand and not with the hand of the Clerk of the Statutes or the like yet is the Statute good enough And if a Statute Staple bee not sealed with the Seale of the party that doth acknowledge it yet it seemes it is good enough for the Statute doth not require it but a Recognisance within the Statute of 23 H. 8. cannot bee good except the Seale of the party bee to it for so are the words of the Statute If a Recognisance or a Statute bee to pay money at severall Coo. 8. 153. dayes it is good enough and if the Conusor faile one day Execution may bee sued of the whole Statute Every Statute Staple or Merchant not brought to the Clerk of the Recognisances within foure Moneths next after Stat. 27 Eliz. cap. 4. the acknowledging to enter a true Copy thereof shall bee void against all persons their Heires Successors Executors Administrators and Assignes onely which for good consideration shall after the acknowledging of the same Statute purchase the Land or any part lyable thereunto or any Rent Lease or profit out of it The proceedings upon a Statute or Recognisance to have Fitz. Accompt 97. Execution in toto Broo. Statute in toto Stat. Actâ—â— Bartel de Mercatoribuâ—â—â—7 Ed. 3. c. 9. F. N. Br. 130 131 132 Dyer 1â—0 15 H. 7. 15. Coo. 4. 69. 7 H. 7. 12. Plow 61 62 82. Coo. super Lit. 290. Stat. 2 H. 8. c. 6. 5 H. 4. c. 12. 2 R. 3. 7. 14 Ed. 3. â— Lit. Broo. Sect. 194. 123. 226. Dyer 299. Coo. 5. 87. 4 82 59 66 Stat. 1 â—il 6. c. 10. â—iâ—ch 116. the fruit and effect thereof is not like to the proceedings in other 4. All the proceedings upon a Statute or Recognisance and the manner and order of Execution thereupon cases of Suits upon Obligations and the like to reduce them to judgement but as they are in their own nature much like to the nature of a judgement so is the proceeding and execution thereupon much like to the proceeding and execution upon a Iudgement And therefore the Conusee may if hee please bring an Action of debt upon a Statute and wave all other proceeding or otherwise if he like not this course he or if he be dead his Executor or Administrator and if his Executor be dead the Executor of his Executor may assoone as the same is forfeit have present Execution of it after this manner Hee must bring his Statute to the Mayor and Clerk or other Officer before whom it was acknowledged and there if they finde the Record of it and the day to be past for the payment of the money they are to apprehend and imprison the body of the Conusor if he be a lay-person and can be found within their jurisdiction and if he cannot be found there they are to certifie the Record into the Chancery which also if they refuse to doe they may be compelled unto by a Certiorare Certiorare And if that Certificate be faulty or execution be not done upon it by reason of the death of the Conusee or otherwise the Conusee or his Executor or Administrator may have another Certificate And thereupon in case of the Statute Merchant he shall have a Writ of Capias out of the Chancery directed to the Sheriffe of the County where the Conusor lives to apprehend and imprison him if he be not a Clergy man and this is to be returned in the Common-Pleas or Kings Bench. And when the Conusor is taken he shall have time for a quarter of a year to make his agreement with the Conusee and to sell his lands or goods to satisfie the Conusee And for that purpose he may sell his lands or goods albeit he be in prison and his faile is good and lawfull And if in that time he doe not satisfie the Conusee or if upon the Capias the Sheriffe returne Capias a non est inventus then by another Writ or by divers Writs if the lands or goods lie in divers Counties called an Extendi Facias And in the case of a Statute Staple presently after the Certificate into the Chancery the Conusee shall have a Writ to take his body and extend his lands and goods returnable in Chancery And this Extendi Facias Quid. Writ is a Commission directed to the Sheriff
of the County where the lands and goods lie for the valuing of the same whereby all the lands goods and chattels of the Conusor shall be apprised and valued at a reasonable rate by a Iury of sworn men charged by the Sheriff for that purpose which Inquisition so taken is to be returned by the Sheriff and thereupon the lands goods and chattels are to be taken into the Sheriffs hands and by him to be delivered to the Conusee which the Sheriff may doe if he will without any Writ to hold unto the Conusee untill he be satisfied his debt and damages And if the Sheriff refuse so to doe the Conusee shall have a Writ out of the Chancery called a Liberate to compell him to deliver to Literate Quid the Conusee the lands goods and chattels so found by Inquisition and taken into his hands upon the Extent which the Sheriff need not to return * Adiuge Butler verâ—iâ— Walli paâ— â—â— Eliz. B. R. Or the Conusee may enter upon the land himselfe and take the goods out of the Sheriffs hand and this act of the Sheriff and Iurie upon this Writ is called an Extent And if the Iurors of Appraiâ—ors upon the Extendi facias overvalve the lands or Extend Quâ— goods in favour to the Debtor the Conusee hath no remedy but by motion in that Court where the Writ is returnable at the return day or at least the same Terme wherein the Writ is returnable to desire that the Appraisors may take the lands or goods at the rate they have valued them in the same manner as the Conusee is to have them But if the Conusee accept of the lands and goods from the Sheriff or suffer the Term to passe wherein the Writ is returnable he is too late and hath no remedy at all And if the Appraisors do undervalue the lands or goods in favour to the Debree it seemes the Conusor hath no remedy at all for he may at any time pay all or the residue of the debt and damages unlevied and have his land againe if he please And in case where the Inquisition or Extent taken and made is insufficient as if part of the land only be extended in the name of all the lands or it is found the Conusor dyed seised of land and it is not said of what estate or the like the Conusee shall have a new Extent and this is called a Re-extent and this he may have Re-extend albeit the lands or goods be delivered to the Conusee by a Liberate if the Conusee have not entred upon and accepted it but if he once accept it he can never after have a Re-extent And when the Conusee is in possession of lands by such an Extent as before then is he Tenant by Statute and after the Conusee is once setled in peace in the lands extended he shall hold it untill he be satisfied his debt and Tenant by Statute his reasonable costs and damages for travell suit delay and expence But it seemes the time shall not run out nor bee said to begin untill the entrie of the Conusee into the land for if the land be extended and remaine seven yeares without a Liberate made yet he may have a Liberate at the end of the seven yeeres And assoon as the Conusee shall be satisfied his debt and dammage by the goods and chattels of the Conusor and by the ordinary and certaine or extraordinary and casuall profits of the land the Conusor shall have his land againe And for that purpose if the Conusee refuse to give him an account and to yield up his land to him the Conusor howbeit he may not enter yet may compell the Corusee thereunto Venire facias ad Conâ—â— dâ—â— Quid. by a Writ called a venire faecias ad computaâ—â—m in the nature of a Scire facias by which the Conusor shall call the Conusee his Executors of Aâ—minstrators to account and if upon the accompt it shall appear he is satisfied the Conusor shall have his land againe and if it appear he is oversatisfied he shall answer the over-plus to the Conusor But the Conusor may not enter upon the Conusee untill he hath brought this Writ and made it thereupon to appeare that the Conusee is satisfied And if in case the Conusee be dead his Executor or Administrator may have execution of the Statute without Executor any Scire Facias upon the shewing of the Statute and the Testament in Chancery And if the Sheriff return that the Conusor is dead the execution shall be made of his lands only in the hands of his Heir or the Purchasor but if the Heir be under age the Execution cannot be Age. done untill he be of full age And if the Conusor die in prison the Execution shall be of his lands goods and chattels And if the Gaoler Escape that hath him in prison suffer him to escape he must answer the debt And if it fall out that the Conusee his Executor or Administrator be ousted or disturbed of his Execution by the Conusor himselfe or any other during the time of the Extent he may relieve himselfe against the disturber by Assise or other Action as another in the like case may doe And if he be rightfully ousted or disturbed by one that hath better right as by one that hath a former Statute or the like or by the act of God as by fire water or the like in these cases the Conusee shall hold the land over after the time of his extent untill he be satisfied But when it is through his own neglect only that he is unsatisfied as where the lands are delivered to him by the Liberate and he after his entrie into them make a conditionall surrender of them as if lands of the value of 10 l. by the year be delivered to him in execution for 40l and he within foure yeares make a conditionall Surrender of them to the Conusor and after he enter for the condition broken in this case he shall not hold the land over the foure years for he must take the profits upon his Extent presently The proceeding in Execution of the Statute Staple and the Recognisance founded upon the Statute of 23 H. 8. is after the same manner throughout as the proceeding in Execution of the Statute Marchant is with these differences only That upon 15 H. 7. 16. F. N. B. 130. 131. the Execution of the Statute Merchant there doth issue forth a Capias against the body before any Execution be to be made of the lands or goods and chattels and the lands and goods cannot bee extended untill a quarter of a yeare be past after the body is taken or the Sheriffe have returned a non est inventus but upon the Execution of the Statute Staple and the Recognisance the body goods and lands may bee taken together at the first this therefore is a more speedy remedy then the
former Also upon a Statute Merchant one may have an Action of debt but otherwise upon a Statute Staple and the Capias upon the Statute Merchant may be returnable in the Kings Bench or Common-Place but the writ of Execution upon the other is to bee returned in the Chancery The proceeding upon the other sort of Recognisances are after another manner for upon Recognisances at the common Law if Dyer 36â— 315. Kelw. 100. West 2 chap. 18. Broo. execution 129. Coo. 3. 11. 15. H. 7. 16. Kitch 117. the money be not paid at the day the Conusee his Executor or Administrator is to bring a Scire facias against the Conusor or if hee be dead against his heires when they be of full age or if the lands the Conusor had at the time of entring into the Recognisance be sold against the purchasers of these lands which the Conusor had at any time after the Recognisance entred into to warne them to come into that Court whence the Scire facias cometh and to shew cause why execution should not bee done upon the said Recognisance and if the party or parties cannot be found to be warned or being warned do not appear at the time or appearing shew no cause why the debt should not be levied then the Conusee shall Elegit have execution of a Moity of his lands by Elegit or if the Conusor be living of all his goods by Levari or Fieri facias at his election Levari facias but he cannot have execution of his body unlesse he bring an Action of debt upon the Recognisance or it be by course of the Fieri facias Court as it is in the Kings-Bench upon a Baile in which case a Capias doth lie Capias The proceeding against the Sureties in Statutes shall be as the Sureties Stat de Mercatoribus proceeding against the Principall but in case where there are moveables of the Principall to satisfie the debt the Suretie as it seems shall not be charged When a man doth enter into a Statute or Recognisance the land 5. What things are subject and liable to execution upon a Statute or Recognisance And when and how And what not Plow 72. Coo. 10. â—0 51. Bro. St. Marchant of the Conusor is not the debtor but the body and the land is lyable only in respect that it was in the hands of the Conusor at the time of acknowledging of the Statute or after and the land is not charged with the debt but chargeably only at the election of the Conusee but the person is charged and the land is chargable in respect of the person and not the person in respect of the land And therefore albeit the Conusor alien his land to another yet he remaines debtor still and his body and his goods shall be taken in execution and yet when execution is sued upon the land the land is charged and become debtor also First in respect of the nature and quality of the things themselves The body of the Conusor himself but not the body of his heire 〈◊〉 de Meâ—catoribus Coo. 3. 12. Plow 72. Coo. 2. 59 Littl. Sect. 358. Dyer 205. Broo. Stat. Marchant 44. Dyer 7. Co. super Littl. 374. executor or administrator is lyable to execution and may be taken albeit there be lands goods and chattels to satisfie the debt and all the demesne and copyhold lands tenements and hereditaments corporeall and incorporeall of the Conusor that are grantable over as his Mannors Mesuages Lands Meadowes Pastures Woods Rents Commons Tithes Advowsons and the like also all his goods and chattels as leases for yeares wardships emblements cattell houshold-stuffe and the like are liable to execution upon a Statue * Dyer 373 And therefore if a man make a lease for life or yeares and after enter into a Statute or Recognisance this reversion cum acciderit shall be subject to execution and the Conâ—sor cannot as it seemes by any sale thereof prevent it And yet the contrary hath been held for law Litt. Broâ— Sect. 227 * Doct. Sr. 53. Bâ—o St. Marcha 41. Dyer 205. And if one make a feoffment in see or lease for life reserving a rent this rent is extendable and the Conusee may distraine for it So if the lessee for life make a lease for yeares rendring a rent and then the lessee for life enter into a Statute this rent is subject to execution 1 Harâ—ingtons case pasche â— lac B. R. and it seemes the Conusee may bring an Action of debt against the lessee for yeares for it a Coo. 7. 3â— And albeit the rent become extinct by the purchase of the Conusor or otherwise yet as to the Conusee it shall be said to be in esse and subject to execution still And therefore if a rent be granted unto me for my life after the death of my wise and after I do acknowledge a Statute and then my wise die and then I release the rent to the terre-tenant this rent shall be lyable to execution But Annuities Offices in Dyer 7. Co. super Littl. 374. Doct. St. 53. Coo. 2. 59. 1. 62. trust Seigniories in Franckalmoigne Homage Fealty Rights Things in action and such like things are not liable to execution upon Statutes or Recognisances Also a remainder in taile or in see after an estate taile in possession is not liable to execution in these cases except it happen to come into the possession of the Conusor The lands tenements and hereditaments that are Copihold albeit Stat. de Mercatoribus Dyer 299. Plow 82. Coo. 7. 39. 3 12. Broo. Recognisance 7. Co. 1. 62. 13 H. 7. 22. Broo Stat. Marâ—c the Conusor have the fee simple of them yet are subject to Second in respect of the estate property and possession of the conusor in the things execution only for the life of the Conusor but his demesne lands wherein he hath an estate in fee-simple are liable to execution for ever if need require The lands the Conusor hath in jointenancy with another are subject to execution during the life of the Conusor and no longer for after his death the surviving jointenant shall have all but if the Conusor survive his companion then all the land shall bee subject to execution and the lands the Conusor hath as tenant in taile are liable to execution only during the life of him being the tenant in taile for afterwards they shall go to his issue in taile And yet if the tenant in taile after he hath entred into a Statute suffer a recovery of the land intailed in this case the land shall be subject to execution as if it were fee-simple land And the lands the Conusor hath in the right of his wife shall be charged and subject to execution only during the lives of the husband and wife together and no longer If a feoffment be made in condition to make an estate to another
by a day of the same land and before the day the feoffee enter Littl. Sect. 3â—8 into a Statute or a recognisance this land shall be subject unto execution untill the feoffor reenter for the breach of the condition If one be disseised of land and then enter into a Statute this Coo. 2. â—9 land shall not be subject to execution and yet if the Conusor do after recover the land by entry or action it shall be lyable to execution The goods and chattels whereof the Conusor is solely possessed Stat. de Merâ—â—t r. bus Co. 3. 11. 12. â—lâ—â— 52â— Coo. c. â—â—1 5. 92. Dyer 6â— and possessed in his own right and the goods and chattels of which he is joyntly possessed with another and the goods and chattels he hath in the right of his wife are liable to execution But the goods or chattels that he or his wife hath as Executor or Executrix to another or as pledged only it seems are not subject to execution And if the Conusor deliver goods to another to deliver over to I S these goods before they be delivered over are liable to execution And if hee have leases for yeares in the right of his wife and die before execution be done it seemes these leases are liable to execution Sed quaere But if the Conusor have goods in his custody of another mans or have goods he hath distrained in the nature of a distresse these are not liable to execution All the lands tenements and hereditaments which the Conusor had at the time of the Statute or Recognisance entred into or at 3. In respect of the time Coo. 3. 12. Stat. de Mer catoribuâ— any time after into whose hands by what means soever the same are betide and come at the time of execution are subject and liable to the execution But the lands the Conusor had and did put away before the time of the Statute or Recognisance entred into are not liable to execution And all the goods and chattels the Conusor hath and are found in his hands at the time when the execution is to be made by the Extendi facias are liable to the execution But the goods and chattels he had and did Bonâfide do away before the time of execution done are not liable to the execution And of all these things before subject to execution the Conusee may take all or part at his pleasure And therefore if the Conusor 4. In respect of the quantity 〈◊〉 Stâ—â—â—â— 4. 2. 25. Pâ—â— 72. Sâ—◠〈◊〉 have sold his lands to divers persons or have sold some of his lands to divers persons or to one man and keep the rest in his hands or it descend to his heire the Conusee may sue execution upon the lands in either of their hands at his election so that if the Cognisee after the Statute entred into and before execution purchase part of the land of the cognisor he may notwithstanding have execution upon the residue in the hands of the Conusor or in the hands of his heire and yet so that in some of these cases his execution may be afterwards avoided and he he compelled to sue execution againe The Cognisee upon other Recognisances shall have the same Weston 2. chap. 13. Plow 72. Coo. 3. 12. Dyer 30â— Kelw. 100. things in execution as a man shall have after a judgement in a Suite in the Kings Bench or Common-Pleas by Fieri facias or Levari facias all his goods and chattels and by Elegit the Moity of his lands and all his chattels besides the Cattell of his plow and implements of husbandry But in these cases he cannot take the body of the Conusor in execution unlesse it be upon a new Suite or in case of baile in the Kings-Bench Howsoever by the Common-law after a full and perfect execution had by extent returned and of record there shall never be any Stat. 32. H 8. chap. 5 â— Where a man shal have a Reextent or â— new execution And where not reextent yet by a speciall Act of Parliament it is provided That if after lands c. be had in execution upon a just or lawfull title wherewith all the said lands c. were liable tied or bound at such time as they were delivered or taken in execution they shall be taken or recovered away from him before he hath received his full debt and damages in this case after a Scire facias had against the Conusor his heirs executors administrators or purchasors he or his executors or administrators if he be dead shall have a new execution to levie the residue of the debt and dammages then unsatisfied Wherein these things are to be observed 1. In case where the Coo. 4. 66. 82. Plow 61 15. H. 7. 15 Coo. super Litt. 99. Kitch 116. Conusee is unlawfully and wrongfully disturbed either by the Conusor or by a stranger in the taking of the profits of the land delivered to him in execution there hee may and must bring his action and recover damages and these damages shall goe toward his satisfaction for in this case and for this disturbance hee shall not hold the land a day the longer And where he is hindred by his own neglect or act in the taking of the profits of the land as where his debt is 40l and he hath 10l a yeare delivered to him by which be may satisfie himself in four yeares and within the time hee make a conditionall surrender to the Conusor and enter for the condition broken in this case hee shall not hold the land over neither shall he have any Reextent And where the let or disturbance is such as wherein the Conusee hath remedy given him by the Common-law to hold the land over after the disturbance removed in this case he shall have no new execution nor reextent within this Statute for where the Conusee hath remedy in praesenti for part or in futuro for all or part this Statute extendeth not to it And therefore where the Conusee is hindred in the taking of the profits of land by the act of God as by fire overflowing of water or the like or the act of the party Conusor or any by or under him as when one is bound to A in a Statute of 100l and after to B in a Statute of 200l and B extendeth the land first and then A extendeth the land and taketh it away from B or when the Gardian in Chivalry doth put out the Conusee by reason of the Wardship of the Heire of the Conusor or the wife of the Conusor doth claime her dower and put out the Conusee or one disseise his lessee for life or out his lessee for years and then acknowledge a Stature and after execution is sued against him and then the land is delivered to the Conusee and after the lessee for life or yeares doth enter in all these cases because by the Common law the Conusee may hold
over the land after the time given him by the extent and after the impediments removed untill he be satisfied his debt and damages therefore he shall have no ayd of this Statute by Reextent for he is then only to be relieved by this Statute when as he is evicted and disturbed and is wholly and clearely without any remedy at the Common-law 2. Where the Statute saith untill he c. or his assignes shall fully and wholy have levied the whole debt and damages if he hath assigned severall parcels to severall assignes yet all they shall have the land but untill the whole debt be paid 3. Where the words be for the which the said lands c. were delivered in execution If A disseisor convey the lands to the King who granteth the same over to A and his heires to hold by Fealty and 20l. rent and after granteth the Seigniory to B B acknowledgeth a Statute and execution is sued of the Seigniory A dieth without heire and the Conusee entreth and is evicted by the disseisee in this case he shall have the ayd of this Statute but the Perquisite of a Villain being evicted is out of the Statute 4. Where the words be delivered and taken in execution yet if after the Liberate the Conusee enter as he may so as the land is never delivered yet it is within the remedy of this Statute 5. Albeit the Statute speake only of the recoveror obligee c. and not of their executors administrators or assignes yet the Statute shall extend to them 6. Where the Statute speakes of a Scire facias out of the same Court c. if the record be removed into another Court and there affirmed he may have a Scire facias out of that Court. 7. Where the Statute gives a Scire facias against such person and persons c. that were parties to the first execution their heires executors or assigns c. this must not be taken so generally as the letter is for if the first execution were had against a purchasor c. so as nothing in his hands were liable but the land recovered if this land bee evicted from the tenant by execution no Scire facias shall goe against him his executors c. but if he hath other lands subject to execution then a Scire facias lieth against him or his assignes but not against his Executor neither in that case can he have a Scire 7. Where and by what means a Statute or Recognisance and the execution thereof shall be discharged â—nâ— ponded or avoided â—â—l or iâ— paâ—t and where not facias upon this Statute against the first debtor or recognisor but if there be severall assignes of severall parcels of lands subject to the execution one Scire facias will lie against all the assignes A Statute or recognisance and the execution thereupon may be discharged divers wayes as by defeasance release paiment of the mony Dyer 297. 315. Co. 6. 13 20. Ass Pl. 7. See Defeasance debt and damages or the residue thereof unlevied delivery up of the Statute purchase of part of the land by the cognisee or the like And therefore if there be a defeasance to the Statute or recognisance and it be to pay money at a day or to performe some other thing and the money be paid or the thing done accordingly this is is a discharge of the Statute And therefore if such a Statute or recognisance be afterwards sued against the Conuâ—or hee may bee By defeasance â—elieved by an Audita Querela And if A bind himselfe to B by a Statute of 20l. and B sue execution and the lands of A are delivered to him in execution untill he levy the money and after B doth make a defeasance to A by Indenture that if A pay 10l by a day certaine that then the Statute or Recognisance shall bee voyd if this be done accordingly the Statute and the execution thereupon is defeated and discharged And if the Cognisee before By Râ—lease Coo. 〈◊〉 Litt. 〈◊〉 47. 50. 51. super Lâ—â—l 265. Broo. St. Marchant 2â— See Releaâ—â— execution or after release to the Cognisor the Statute or Recognisance or the debt this is a perpetuall discharge of the Statute and the execution thereupon But if the Conusee before execution release to the Conusor all his right in or to the land this will not discharge the whole execution for if he may not sue execution of the land afterwards as it seemes he may this notwithstanding yâ—â—â—e may sue execution of his body and goods But such a release after execution made of the land will no doubt discharge the land â—nd yet if a Conusee release all his right in the land to the Feoffee of the cognisor of a parcell of the land it seemes this will discharge the land of execution albeit it be before the execution sued that this release is made And so it is said it was resolved Mich. 26. 27. Eliz. If the cognisee assigne the Statute or Barrow Graies case 38. Eliâ— Recognisance to the Cognisor or to the terre-tenant by way of discharge of the debt or land it seemes this is a good release and discharge of it in law And if the Cognisee purchase any part By purchase or surrender of the land of the land of the Cognisor after the Statute or Recognisance Plow ye â— N. 104. lit Broo. Sect. 293. 11. M. 7 4. Branditâ— Queâ—la 48 Seat Marchant 42. Coo. â—eyre â—itt 150. 25. Aâ—s Pl. 7. Broo. Stat. Marchant 25. Littl. 〈◊〉 〈◊〉 25. entred into this is no discharge of the Statute or the Recognisance but the Cognisee may have execution notwithstanding of the lands that are left in the hands of the Cognisor or of his body or goods or all But if the Cognisee purchase parcell of the lands and a stranger another parcell in this case the lands that are purchased by the stranger shall be discharged of execution And if the Cognisee after execution sued purchase any part of the and or the Fee-simple of all or part of it doth descâ—nd to him by this the whole execution is discharged And if the Cognisee purchase all the lands of the Cognisor by this the execution as to the land is suspended but this is no discharge as to the body and goods of the conusor for they are subject to execution still And if the conusee reinfeoffe the conusor againe the execution may be revived again against the lands of the conusor so that they will be subject to execution againe whether they do contiâ—â—e in his lands or bee sold away to others So also if the Conusee enfeoffe a stranger after hee doth purchase the land and the stranger doth enfeoffe the Conusor in this case also the Execution is revived and the lands shall now be subject thereunto as they were before If a Leassee for life make a Lease for yeares rendring a rent and Harringtone case â—asche
19. Iac. B. R. after enter into a Statute to I S and then enter into another Statute to I D and after hee doth grant his estate to I S by this the Execution of the Statute made to I S is suspended and therefore during the suspention it seemes I D albeit he be after in time may sue and have he Rent in execution If the Conusor after he hath entred into a Statute or Recognisance 8. Where the Conusor or his heir or an alience or purchaser shall have contribution upon a Statute or Recognisance or not doth convey away his land to divers persons and then the Conusee Plow 72. Coo. 3. 12 6 13. sue Execution of the Statute upon the lands of one or some of them and not of all in this case he or they whose lands is or are taken in Execution may by an Audita Querela or Scire Facias have contribution from the rest wherein these differences must bee observed That one Purchasor shall have Contribution from another And therefore if the Conusor sell some lands to I S and other lands to I D and the Conusee sue Execution only of the lands of I S I S shall have contribution against I D. And the Feoffee of the Purchasor the Feoffee of the Heir of the Conusor the Feoffee of the Feoffee and another Feoffee shall have contribution of the Heir of the Conusor But the Conusor himselfe shall not have contribution from a Purchasor and therefore if hee sell part of his lands and keep part in his hands and the Conusee sue Execution only of the lands in the hands of the Conusor or his Hâ—ires in this case neither he nor his Heirs shall have any contribution from the Purchasors and one Heire shall have contribution from another And therefore if one be seised of two Acres the one in Burâ—ow English the other of other Land and he enter into a Statute and die and he hath but two daughâ—â—s and the Execution is sued upon the land of one them she shall have contribution from the other So where some land doth discend to the Hâ—ire of the part of the Father and some to the Heire of the part of the Mother If one be seised of lands in Fee in the County of A and B and enter into a Statute or Recognisance and the Conusor die and then the Conusee die also and his Executor doth â—uâ— Execution of the lands in B only and hath Execution and after the Heir doth sell these lands in this case the Vendee shall have no contribution So also it seems the Law is if the Hâ—iâ—e sell the land to divers and one of the Purchasors appear to the Seire Facias and the Iudgement is given against him and he afterwards sell the land his Vendee shall have no contribution And in all these cases where it is said the one Purchasor shall have contribut on it is not intended that the rest shall give or allow him any thing by way of contribution but that the party whose lands are extended may by Audita Querela or Seire Facias as the case requireth defeat the Execution and thereby shall be restored to all the meane profits and force the Conusee to sue his Execution upon all the land that the land of every one of the Terre-tenants may be equally extended And so wee fall from an Obligation by matter of Record to an Obligation by matter of Fait which is no Record CAP. XXI Of an Obligation AN Obligation is a Deed in writing whereby one man doth bind 1. Obligation Quid. Obligor Obligee Finches ley 49. himselfe to another to pay a summe of money or doe some other thing And hee that makes this Deed is called the Obligor and he to whom it is made is called the Obligee And it is sometimes Simple or Single which is when it is to pay 2. Quotuplex Coo. super Litt. 172. a summe of money or doe some other thing and when it is without any Defesance or Condition in or annexed to it which also is sometimes with a penalty called a penall Bill and sometimes without a penalty And this is that which is most properly called an Obligation and sometimes also it is called a single Bill or single Bond. And sometimes it is double or Conditionall which is when it is attended upon and accompanied with a Condition And then it is said to be a Bond containing a penalty with condition to pay money or doe or suffer some act or thing c. And this Condition is some times called a Defeasance and then especially when it is as sometimes it is in another Deed or Instrument for most commonly it is inserted into the same Deed wherein the Obligation being the other part of it is contained And then also it is either subscribed under the Obligation or included within the body of it or indorsed upon the back of it And quacunque vià if the condition be performed the penalty is saved if not the penalty is forfeit a a Broo. Obligat 67. â—0 An Obligation may be made upon parchment or paper and in loose 3. What shall be said a good Obligation in his originall creation or not parchment or paper b Trin. 49. Eliz. B. R. or in a peece of paper or parchment sowed in a book and either way it is good But if it be made on a Tally peece of wood or any other thing but paper or parchment albeit it be sealed and delivered yet it is voyd c Coo. super Lit. 229. Fitz Obligat 9. And it may be made in the first or in the third person notwithstanding the Statute of 38. Ed. 3. c. 4. which First for the manner and form of it and what words are sufficient to make an Obligation doth intend only Obligations made beyond the Sea And therefore an Obligation so made as Memorandum quod A de B debet C de D 10l In ou us c. is good Albeit the best manner and form of an Obligation is that which is Dyer 21. 22. 23. Coo. 9. 53. 37 H. 6. 9. 22 Ed. 4. 22. â—elw 34. a â— Ed. 4. 39. â—3 H. 7. 6. most usuall as Noveritis me A de B teneri firmiter obligari C de D in 20l. legalis c. Solvend eidem C autsuo cert Atturnat executoribus aut administratoribus suis Ad quam quidem solutionem bene fideliter faciendum obligo me haeredes executores adminstratores meoâ— firmiter perprasentes c. yet any words in a writing sealed and deliverd whereby a man doth prove and declare himselfe to have another mans money or to be indebted to him will make a good Obligation And therefore if a man by Deed say but this Memorandum that I A of B doe owe to C of D 20l. to be paid at Easter next Or memorandum that I A of B have had of C of D 20l. of which there is 10l
be two daies of that name in the yeare in this case it seemes it must Dyer 77. be done that day that is furthest of from the time of the making of the obligation especially if that day be the more notorious of the two dayes If the condition be to pay 10l the eleventh of May next following Adiudg M. 20. Iac. B. R. Prescots case and the obligation is dated the 5th of May in this case the money must be paid the 11th day of the same Moneth of May and not of the next Moneth of May. If the condition be to stand to the award of I S and I S award 22 Ed. 4. 25. money to be paid but set no time for the payment of it this must be paid in convenient time else the obligation shall be forfeit If one be bound to me in an obligation with condition that if I enfeoffe Perk. Sect. 797 799. him of White acre he will pay me 10l but doth not say when this must be done assoon as I make him the feoffement So if one be bound to me that if the goods I have delivered to B shall be lost that C shall satisfie me for them and doth not say when this shall be presently after the loosing If the condition be to pay I S money when he shall come to M. 2. Iac. B. R. Crausdenet Morses case the age of 21 yeares in this case it must be paid the very day I S doth come to his full age and paiment after is not a sufficient performance of the condition If the condition be to come at a day to such a place to do a thing 39 Eli. B. R. Fitz. Barre 92. and the thing cannot be done without the concurrence of the other partie in this case the obligor must stay for the very last instant of the day for his comming and it seemes also he must stay at the place all the day long If the condition be to pay a rent at Mich. or within 20 dayes Adiudg pasâ— 39 Eli. after the obligation is not forfeit before the 20 dayes be past If one be to doe a thing on a day certaine he may doe it any part Eroo Condition 145. Dyer 17. 7. Ed. 4. 3. of the day whiles the light doth last And if the condition be to doe a thing by or before a day it may be done the last instant of the day before and it is sufficient If the condition of an obligation be to pay money or doe any Perk. Sect. 780 781. 7 Ed. 4. 4. 22 Ed. 4. 25. Lit. Sect. 340 341. like transitory act to the Obligee on a day certaine but no place is 3. In respect of the place where the thing is to be done set down where it shall be done in this case it must be done to the person of the Obligee wheresoever he be and for this purpose the Obligor must at his perill seek out the Obligee if he be intra quatuor maenia otherwise the obligation is forfeit but if the Obligee be not within the Kingdom at the time when the thing is to be done he is not bound to seek him so neither is the obligation forfeit for not doing of the thing So if one grant an Annuity to another and doth not set down where it shall be paid and gives a Bond with condition for the payment thereof in this case it must be done to the person of the Obligee where ever he be And the like Law is as it seemes where the thing to be done by the condition is to be done by or to a stranger But when the thing the party is bound by the condition to doe is locall he is not bound to goe any further or to any other place but to the place it selfe And therefore if the condition be to make a Feoffment of a piece of Land the party that is bound to doe it is not bound to goe to any other place but to the piece of land to doe it And if a man make a Feoffment in Fee or Lease for life or years of land rendring rent generally and gives an obligation with condition for the payment of the rent the Feoffee or Leassee is not bound to goe to any place from the land to seek the Feoffor or Leassor to pay him this rent If the condition be to deliver 20 quarters of corn such a day to Perk. Sect. 785. the Obligee and no place is set down where it shall be delivered in this case it is sufficient if the Obligor when the corn is ready doe give notice thereof to the Obligee and to wish him to appoint a place wherunto the Obligor may bring it and if he refuse to appoint a place it is at his own perill or the Obligor may bring the corn to the house of the Obligee and this is the safest way and if the Obligee refuse it the condition is performed and the obligation is discharged If the condition be to performe all the Covenants in an Indenture â—oo 4. 80. Dyer 257. 4. In respect of the thing it self to be done this shall bee taken as well for the Covenants in Law as for the Covenants in Deed. If a Lease be made of a Mannor excepting a Close and the Plow 67. Leassee make an obligation to the Leassor with condition that the To perform Covenants Leassee shall perform omnia singula in scripto praedicto contenta by this the Close shall be taken to be within the condition so that if the Leassee disturb the Leassor in the Close excepted this shall be a of breach the condition If the condition be to makea Feoffment to the Obligee of Land To make a Feoffment Lease c. See Covenant Num. 6 in this case the Feoffment may be made with or without writing and if it be made by writing it may be made without any warranty or Covenants and this will be a sufficient performance of the condition If the condition be That the Obligor shall make a Lease to the Coo. 6. 33. Obligee for 20 years and it is not set down when the Lease shall begin it shall begin presently If the condition be That the Obligor shall doe any act upon request Dyer 228. that the counsell of the Obligee shall think reasonable as To make a Release or other assurance for example shall doe any act c. for the releasing of an obligation wherein the Obligee is bound to the Obligor and the Obligee by advise of Counsell deviseth and requesteth a release of all demands to the Obligee and to I S in this case the Obligor may refuse to seale it albeit it â—e devised by the counsell of the Obligee because it is unreasonable for it must be a reasonable act that the Obligor by this condition is bound to doe If the condition be to pay 10l at Michaelmas next and 10l To pay money or rent
certaine 14 H. 8. time surrender such land of his for an Annuity of so much as they shall agree upon and they agree upon 10l per annum in this case the Obligor is not bound to make the surrender untill the Annuity be made and tendred unto him If the condition bee to deliver to the Obligee an obligation Hil. 37. Eli. Co. B. Greeinghams case adiudg wherein the Obligee is bound c. or to seale and deliver to the Obligee such a Release of it as shall be devised by the counsell of the Obligee before Michaelmas and the counsell doe not advise any Release before Michaelmas in this case the Obligor is discharged of the obligation for the Obligee is to doe the first act If A be bound to B in an obligation with condition that A and Trin. 4. Iac. B. R. his wife shall levie a fine of land to C and D and their heires and at their costs and charges this shall be construed to be at the costs of the Obligor and not at the costs of the Conusees but if the word and be omitted perhaps it may be of otherwise If the condition be thus That if the wife die before Michaelmas Dyer 17. without issue of her body then living that the obligation shall bee void in this case then living shall relate ad proximum antecedens and not to the death of the wise and therefore if she hath issue and die and after before Michaelmas the issue dyeth also the obligation is void If the condition be that if the Obligor shall waste the goods of the Obligee his master and this waste within three Moneths after Golds case M. 13. Iâ— due proofe of it either by confession or otherwise bee notified to the Obligor that the Obligor shall satisfie the Obligee for it and the Obligor doe confesse the waste under his hand and seale in this case it seemes this proofe though it be extrajudiciall is sufficient When the condition of an obligation is to doe two things by a Coo. 5 22 super Lit. 207. Dyer 262. 15 H. 2. 4. H. 7. 4. day and at the time of making of the obligation both of them are Conditions Impossible possible but after and before the time when the same is to be done one of the things is become impossible by the act of God or by the sole act and laches of the Obligee himselfe in this case the Obligor is not bound to doe the other thing that is possible but is discharged of the whole obligation But if at the time of the making of the obligation one of the things is and the other of the things is not possible to be done he must perform that which is possible And if in the first case one of the things become impossible afterwards by the act of the Obligor or a stranger the Obligor must see that he doe the other thing at his perill And when the condition of an obligation is to doe one single thing which afterwards before the time when it is to bee done doth become impossible to be done in all or in part the obligation is wholy discharged and yet if it bee possible to be done in any part it shall be performed as neare to the condition as may be If the condition be to doe one of two things as to make a feoffment to me or pay me 20l. in this case if the obligor doe either 21 Ed. 3. 29 of them it is sufficient But if the condition be in the copulative as to enfeoffe me and pay me 20l. in this case the doing of one of them will not suffice but he must doe both If the condition be to pay to A B and C 30 l. a pece within a week after they come to 18 years of age or within 40 dayes after Per. Iustice Dodridge M. 2. Car. B. R. their dayes of marriage after notice given thereof which shall first happen in this case this notice must goe to both the parties so that notice must be given when they are 18 years of age otherwise and untill notice given it seemes the obligor is not bound to pay the money See more in Condition Numb 8. and Covenant Numb 6. The matter of a condition of an obligation is sometimes affirmative 8. When the Condition of an Obligation shall be said to be performed and the Obligation saved or not and compulsory and doth consist of something to be done and sometimes it is negative and restrictive and doth consist of something not to be done the not doing in the first case and doing in the latter case causeth the obligation to bee forfeit and the doing in the first case and not doing in the latter saveth the obligation If one be bound in an obligation to me with condition to enfeoffe To make a feoffment Coo. super Lit. 207. plo â— 7â— 17 Ed. 4. 3. me of land and the obligoâ— doe first make a Lease to me of it and afterwards he doth make a Release of it to me and my heires this is a good performance of the condition If a condition be to make me a feoffment of land and he tender me a feoffment and I refuse it by this the condition is performed So Tender and Refusall Perk. Sect. 784. Fitz. Barre 82. Perk. Sect. 758. 15 Ed. 4. 5. if the condition be to make a feoffment to my use and when it is is made I refuse it this is a good performance of the condition But if a man bind himselfe in an obligation to me with condition to make feoffment to a stranger and hee tender the feoffment to the stranger and he doth refuse it this is no good performance of the condition but the obligation is forfeit If the condition be to enfeoffe me and my wife and he tender it to me and I refuse it it seemes this is a good performance If one bind himselfe in an obligation to me with condition to 3 H. 7. 4. 4 H. 7. 4. Perk. Sect. 757. make me a feoffment of the Mannor of Dale by a day and he before the day grant a rent-charge out of the same Mannor to a stranger and afterwards and before the day also he doth make me a feoffment of the land this is a good performance of the condition and the grant of the rent no breach thereof But if the obligor sell away part of the Mannor before or make a feoffment to me but of a moity or a third part of the Mannor this is no good performance of the condition And if in this case the obligor before the day take a wife and before the day make his feoffment according to the condition but the marriage doth continue untill after the day in this case it seemes the condition is broken If the condition be that the obligor shall enfeoffe me of the Mannor Acceptance Perk. Sect. 749. 759. Dyer 1. Perk. Sect. 751. 9.
H 7. 1â— 3 H 7. 4 27. H. 8. 1. 14. H. 8. 15. 10. H. 7. 14. of Dale and hee make a feoffment of the Mannor of Sale and I accept thereof it seemes this is no performance of the condition and that my acceptance in this case will not help So if the condition be to make me a feoffment of land and he give me mony a horse or the like in recompence of this and I accept thereof this is no good performance of the condition And the like Law is in all cases where the condition is to doe any collaterall thing as to account build a house enter into a Recognisance or the like and the obligor doth give and the obligee accept some other thing in liew thereof And so also it is where the condition is to make a feoffment to a stranger and the obligor give and the stranger take another thing in liew thereof But if the condition be to enfeoffe me of land such a day and he make and I take the feoffment before the day this is a good performance of the condition If the condition be to enfeoffe me or my heirs in the disjunctive 14 H. 8. 15. Coo. 5. 112. and the obligor enfeoffe me and my heires this is a good performance of the condition for it is impossible to enfeoffe my heirs whiles I live and when two things are to be done by a condition whereof the one is possible at the time of making the obligation and the other is not in this case it is sufficient if he doe the thing which is possible If the condition be to make me a feoffment or pay me 20 l. if the 21 Ed. 3. 9. obligor doe either of them it is sufficient But if the condition be to infeoffe me and pay me 20 l. in this case the obligor must do both or the condition will not be performed Et sic de similibus If the condition be that the obligor shall make me a sufficient Perk. Sect. â—â—6 Kelw. 9â— To make an Estate estate of land by the advise of W and S and they advise an insufficient estate and the obligor doe make the estate according to that advise this is a good performance of the condition But if the condition be that the obligor shall make a good and sure estate and he by advise of counsell make an estate that is not good and sure this is no good performance of the condition If the condition be that the obligor shall make me an estate of Fitz. Barre 55. land and make the estate to another by my appointment it seemes this is no performance of the condition If the condition be that the obligor or his feoffees in trust shall Trin. 17. â—a B. K. make an estate to the obligee such a day and the feoffees doe it without the consent of the obligor this is no performance of the condition If the condition be to make further assurance and the obligor Pasche 8. â—a Co. P. To make further assurance make further assurance upon condition without the agreement of the other party this is no good performance of the condition If the condition be to save me harmlesse from an Annuity wherewith To save harmlesse 37 H. 6. 18. Perk. Sect. 792. my land is charged and the obligor doth pay the same yearly and get me an Acquittance for the same from the party this is a good performance of the condition But if the condition bee to discharge me of such an Annuity in this case payment and procuring mee a Release is no good performance of the condition If the condition be that the Feoffees or Leassees of the Obligor To grant a rent or to procure a rent to be granted of such land which they have in trust shall grant me a rent-charge Peâ—â— Sect. 790. Fitz. Barre 7. or release their right to mee before such a day and there be three Feoffees or Leassees and two of them only doe grant this rent or make this Release this is no good performance of the condition If the condition be that the Obligor shall purchase and procure Dyer 15. to me and my heires a rent of 5 l. per annum and a stranger hath such a rent out of my land and he doth get him to release this to me this is a good performance of the condition And if one be bound Fitz. Barre 77. with condition to grant me the rent and farm of such a Mill before Michaelmasse to be had and perceived untill I be paid 10 l. and before that time he lease the Mill to me at a rent and then suffer me to detaine so much of the rent it seemes this is a good performance of the condition If the condition be to deliver me a horse and the Obligor tender To deliver a horse the horse unto me and I refuse him hereby the condition is performed Coo. super Lit. 207. and so in all such like cases where the Obligor is to doe Tender and Refusall any collaterall thing as stand to an award or the like if the Obligor offer to doe it and the Obligee refuse the condition is performed and the Obligation discharged forever If the condition be to pay money at a day certaine and the To pay mony Obligor pay a little before night time enough for the receiver to Dyer 17. super Lit. 202. Broo. Condition 145. see to number his money by day light this is a good performance of the condition And if the condition be to pay money by or before a day paiment the last instant of the day before is a sufficient performance of the condition If the condition be to pay me a summe of money at a day certaine Perk. Sect. 748. 34 H. 6. 17. 21 Ed. 3. 13 Coo. 5. 117. 9. 79. Broo. Oblig 64. Acceptance and the Obligor pay me lesse money before the day or all the money before or at the day or give me something else before or at the day of paiment in liew thereof or pay me all the money or a lesser summe at the day appointed but in another place and not the place mentioned in the condition and I accept thereof in all these cases the condition is well performed But if a stranger to the condition doe so and I accept thereof this is no good performance of the condition as hath been * Trin. 36 Eliz. adjudged And if the Obligor pay lesse then the whole money at the day of paiment and the Obligee accept thereof this is no good performance of the condition * Adiudge 17 Eli. And if the thing to be done be a collaterall thing as to account or the like and the Obligor give unto the Obligee money or a horse in liew thereof and the Obligee accept it this is no good performance of the condition And if the Obligor pay the money to the
advised upon it this is a breach of the condition but if they be illitterate and refuse to seale it untill they can get it read this is no breach of the condition If the condition bee that the Obligor shall save the Obligee harmlesse from such a debt for which the Obligee is surety for Dyer 186. 187. 18 Ed. 4. 27. 28. Coo. 5. 24. Old book of Entry 12. To save harmâ—esse the Obligor and the Obligee commeth at the time and to the place when and where the money for which he is engaged is to bee paid and finding no body ready to pay the money he doth pay it himselfe to save the forfeiture of the obligation hereby the condition to save harmlesse is broken and the obligation forfeit And therefore much more if the obligee be sued arrested out-lawed or taken in Execution for the debt of the principall So also if the Obligee bee put in feare of arrest for the debt of the Principall and therefore dare not goe about his businesse by this the condition is broken But if the Obligee be sued unjustly either because he is sued before the money is due or otherwise or if the Bond in which he is bound be against Law and void and he suffer himselfe to bee unjustly vexed thereupon and doth not take advantage of it it seemes this is no breach of the condition of the Bond to save harmlesse If a Bailiffe distrain beasts on a withernam and afterwards redeliver 2 H. 4. 9. them to the party of whom he had them and a take Bond from him with condition to save him harmelesse from him for whom the beasts were taken and after he doth bring a detinue against the Bailiffe for the beasts in this case the condition is not broken for this action will not lie in this case If the condition be to pay money to me at a day and place certaine Kelw. â—0 and the money is not tendred at the time and place albeit To pay mony there be no body ready to receive it if it be tendred yet the condition is broken If the condition be to pay money to meat a day and place and Broo. Oblig 9. the obligor in his going to the place is robbed of the money so as he cannot pay him in this case notwithstanding the condition is broken and the obligation forfeit and this will not excuse it If the condition be to pay money to me at a day and place and I seeing him going to the place to pay the money do wish him Kelw. 60. to forbeare and thereupon he doth so and doth not pay it in this case the obligation is forfeit and this will not excuse But if I doe violently and actually detaine and hinder him so that hee cannot pay it this will excuse him If the condition be to pay me the rent reserved on such a lease To pay Rent Hill 4. Iac. Molmenx case at the times limited by the lease and it be not accordingly hereby the condition is broken a beit I do never demand the rent If the condition be to pay me the rent reserved on such a lease Broo. Oblig and I enter upon all or part of the land demised so as the rent is suspended so long as I keep the possession in this case the non-payment of the rent during the time of the suspension of the rent is no breach of the condition If the condition be that I shall enjoy land without the interruption Dyer 30. For quiet â—â—joying of any person whatsoever and afterwards I doe forfeit it my selfe by non-paiment of rent or the like this is no breach of the condition If the condition be that the obligor shall suffer the obligee to Dyer 255. 17. Ed. 4. 3. enjoy lands c. and that without the let of him c. or any other person or persons c. and one that hath an elder title doth enter thâ—s is no breach of the condition But if he procure this entry and disturbance this is a breach of the condition If the condition be that B and others shall quietly enjoy land Kelw. 60. and A the obligor and B the obligee doth disturbe the others it seemes by this disturbance the condition is broken If the conditinn be that the obligor shall not disturbe me in the Coo. 9. 51. keeping of my Courts and he keep the Courts and take the Fees himself this is a breach of the condition If one make a feoffment of land and make me an obligation with Coo. super Lut. 3â—4 condition to desend the land for 12 yeares c. and I am entred by a stranger but never impleaded in this case the condition is broken If the condition be to stand to the award of I S and the obligor Coo. 4. 61. 8. 23. To stand to an Award doth afterward counter maund the submission made to I S this is a breach of the condition Factum non dicitur quod non perseverat If the condition be that I shall have licence to carry wood seven Coo. 8. 8. 83. 18. Ed. 4. 20. yeares and the obligor doth give me a licence for seven To give a licence yeares and then doth revoke it againe this is a breach of the condition If the condition be that I S shall give me licence to go over 1. â— Ed. 4. 23. his ground and I S doth so but another doth interrupt me this is no breach of the condition And yer if the condition be that I shall have licence to goover that ground there perhaps ssuch an interruption may be a breach of the condition If an obligation bee made to me with condition to appeare â—n Fitz. Barâ—â— 60. such a Court such a day and at the day hee is kept in prison at my To appeare suite so as he cannot appeare in this case his not appearance is no breach of the condition for his imprisonment shall excuse him But if his imprisonment be for Felony or any other such like cause of his own contra If the condition be to appeare in such a Court such a day and Dyer 25. before the day a Supersedeas doth come to the Sheriffe yet if the obligor do not appear the obligation is forfeit If the condition be that the obligor shall ride with I S to Dover Perk. Sect. such a day and I S doth not go thither that day in this case To ride to Dover it seemes the condition is broken and that he must procure I S to go thither and ride with him at his perill If I make a lease for yeares and the lessee doth enter into an Per Iust Nichol M. 13. â—a Not to alien obligation with condition that hee shall not alien the land demised without my licence and I die and then hee doth alien it it seemes this is a breach of the condition If the condition
7. Eâ—rz So if the condition give the obligor time all his life time to do the thing the obligation is not discharged by his death but in this case he must do it during his life time at his perill If the condition be that the obligor shall deliver to the obligee Adâ—â—â—â—â—â— 37. 〈◊〉 Co. B. 〈…〉 versus â—wie an obligation or such a release as the counsell oâ— the obligee shaâ—â— devise before Michaelmas and the counsell of the obligee devâ—â— no release before Michaelmas hereby the obligation is gone for ever If the obligation depend upon or be necessary to some other Bâ—oo Oblig 〈◊〉 88. 2â— 4. H. 7. 6. deed and that deed become void in this case the obligation is become void also as if the condition of the obligation be to perâ—orm the Covenants of an Indenture and afterwards the covenants be discharged or become void by this meanes the obligation is discharged and gone for ever And if one make a lease for yeares rendring rent and the lessee enter into an obligation with condition to pay the rent to the lessoâ— and after it â—all out so that the lessee is evicted out of the land by an elder title whereby the rent in law is gone in this case and by this meanes the obligation is discharged and gone also Buâ— if the eviction be but of a part of the land contra If an obligation bee made to me and delivered â—s I S to my Coo. 5. 119. use and when it is tendred to me I do refuse it and disagree to it hereby it is become void and cannot afterwards be made good againe So if an obligation bee made to my wife and I disagree to it hereby it is become void By a Release made from the Obligee to the Obligor or to one â—â—t Baâ—â— 37 of the Obligors if there be more then one the obligation may be discharged And therefore if an Obligation be made to me with condition to pay money and I by my Deed release it or acknowledge my selfe satisfied the debt albeit I receive none of it or that I receive but part of it in full satisfaction of the debt by this the obligation is discharged for ever If the Obligee make the Obligor or one of the Obligors or Bâ—oo Oblig 61. Coo. 8. 136. 8 Ed. 〈◊〉 3 21 Ed. 4. 2. 11 H. 7. 4. all the Obligors his Executor or his Executors hereby the obligation is discharged for ever But the granting of Letters of Administration to one or more of the Obligors is no discharge of the obligation And if the Obligor make the Obligee his Executor this is no discharge of the obligation If the Obligee be a woman and take the Obligor to husband Broo. Oblig 61. hereby the obligation is discharged If the condition be to enfeoffe K. S a woman before such a Fitz. Barre 133. time and before the day the Obligor doth marry the woman this doth not discharge the obligation If the condition be to serve me seven years and within the time Dyer 329. I licence him to depart it seemes that hereby the obligation is discharged And yet if the condition be to stand to an Award and it is awarded that one of the parties shall pay 5 l. a yeare for seven years towards the education of I S and I S die within the seven years the obligation is not discharged by his death but the money must be paid during the time notwithstanding If the condition bee to doe two things or stand upon divers Dyer 371. points and the Obligee supposing the breach of one of them doth sue the Obligor and the issue being joyned upon that point it is sound against the Plaintiffe and he is barred hereby the whole obligation is discharged and so long as that Iudgement is in force he can never sue the obligation upon any other point within the condition If the condition be to satisfie me for goods I have delivered to I S Pitâ— Barre 64. if they be lost and afterwards they be lost and I sue I S and have him in Execution for them by this the obligation is not discharged but perhaps when I have satisfaction of I S being in Execution for the goods the obligation may be gone And in all other Cases by which a Deed in generall may become void by matter ex post facto as by Rasure or the like an obligation may become void CAP. XXII Of a Defeasance THis in a large sence doth sometimes signifie a condition annexed Dâ—feasanâ—e Qâ—id to an estate and sometimes the condition of an obligation made with and annexed to the Obligation at the time of making thereof But it is more peculiarly and properly applyed to such conditionall instruments as are made in Defeasance and avoidance of Statutes and Reconisances at the time of enâ—ring into the same Statutes or Recognisances and to such conditionall Instruments as are made in Defeasance of Statutes Obligations and the like after the time of the same Statutes entred into and Obligations c. made And it is therefore thus defined A Deseasance is a condition relating to a Dâ—ed as to an Obligation Recognisance Statute or the like which being perâ—ormed by the Obligor or Recognisor the Act is disabled and made void as if it had never been done which differeth from a condition only in this that this is alwayes made at the same time and annexed to or inserted in the same Deed but that is alwayes made in a Deed by it self and for the most part made after the Deed whereunto it hath relation There is no Inheritance Executory as Rents Annuities Conditions 2. Where and in what cases a Deâ—easance may be and what things may be defeated and avoided thereby and where and what not Warranties Covenants and such like but may by a Defeasance made Coo. super â—itt 236 237 1. 111 113. Plow 137. 193. 21 11. 7. 23. Bâ—oo Deâ—easance in toto with the mutuall consent of all those which were parties to the creation thereof at the same or at any time after be annulled discharged and defeated And so is the Law of Statutes Recognisances Obligations and the like yet so as in all these cases regularly the Defeasance must be made codâ—m modo as the thing to be defeated was and is created viz. if the one be by Deed the other must be so also for it is a rule that in all cases when any Executory thing is created by a Deed that the same thing by the consent of all persons which were parties to the creation of it may be by their Deed defeated and annulled and therefore that Wanranties Recognisances Rents Charges Annuities Covenants Leases for years Uses at Common-Law and such like may by a Defeasance made with the mutuall consent of all those that were parties to the creation of it by Deed be discharged and avoided Nihil â—st tam conveniens naturali aquitati quà m
quod unumquodque dissolvâ—â—o ligamine quo ligatur And therefore by such a Defeasance not only the Covenant which doth create a power of Revocation but the power it selfe created may be utterly defeated and avoided But estates of Inheritance and other estates in Taile or for life executed by Livery c. cannot be avoided by Defeasance made after the time of their creation and first making And yet by anoother Deed of Defeasance made at the same time a Peoffment Release Lease for life or other executed thing may be avoided as well as if it were by condition within the same Deed as if a Dissesee release to the Disseisor this Release cannot be defeated by an Indenture of Defeasance made afterwards but it may be defeated by an Indenture of Defeasance made at the same time Quae in contìnenti fiunt in esse videntur To make a good Defeasance these things are requisite 1. That 3. What shalâ— be said a good Defeasance and what not Coo. 1. 113. the Defeasance bee made â—odem modo as the thing to be defeated is created for if the Obligee by word only discharge the Obligor or grant not to sue him this will not defeat the obligation it must be by Deed therefore as the former was a Broo. Deseas 12. Fitâ— Barre 95. But whether the For the manner of it Deed of Defeasance be indented or poll is not materiall 2. b Plow 393. That if it doe recite the Statute or the obligation as for the most part it doth that it bee done truly for if a Defeasance be made of a Statute or an obligation which is recited to be made the 10th day of May whereas in truth it beareth date the first day of May this Defeasance is void 3. c 14 H. 8. 10. Bro. Estrang al fait 10. That it be made between the same persons that were parties to the first Deed c. And therefore if A be bound in an obligation to B in 20 l. and B make a Defeasance to C that if C pay him 20 l. the obligation made by A shall be void this is no good Defeasance because it is not made between the same parties d Broo. tit Defeasance 3. And yet if a Statute be made to the husband and wife and the husband alone joyn in the making of a Defeasance this is a good Defeasance 4. e Broo. Deâ—â—â—sance 5. That it be made after the making of the Recognisance Obligation c and not before for if A grant to B that if B will be bound to him in 20 l. by obligation that the obligation shall bee void and after B doth bind himselfe to A in an obligation of 20 l. this Defeasance is not good because it is before the obligation f Dyer 315. And yet if the date of the Defeasance be before the date of the Recognisance c. and it be delivered after it is good enough 5. That it be For the matter of it made of a thing deseasible g Plow 137. Broo. Defeasance 1. for if a Disseisee release his right to the Terre-tenant and after there is a Defeasance made between them that if the Relessor shall pay 20 l. to the Relessee the Release shall be void this is a void Defeasance h Broo. Defeasance 6. 9 â—oo super Lâ—tt 236. And yet a Release may be avoided by a condition or Defeasance made at the time of making of a Release as well as a Feoffment If the Defensance of a Recognisance Obligation c. be that if See West Symb. â—â—oâ— Defeasance â—n toto the Cognisor or Obligor c. pay a summe of money or doe not disturb the execution of the Will of I S or do make a Lease for years to I S or the like these are good Defeasances As if the Grantee of a Rent-charge grant to his Grantor that if he shall pay him 20 l such a day the grant of the rent shall be void Albeit the condition of an obligation that is repugnant to the obligation it selfe is void â—o H. 7. 24. 21 H. 7. 32. Fitz Barre â—1 and the obligation â—ingle yet it is otherwise in case of a Defeasance made after the obligation for this is good notwithstanding it be repugnant And therefore if the Obligee after the obligation made grant by Deed to the Obligor that the obligation shall be void or that hee will not sue the obligation at all or that he will not sue the obligation untill such a time or that the obligation shall bee discharged these Defeasances are good to avoid the obligation If the Feoffee with warranty grant that neither he nor his Broo. Defea 4. 7. 〈◊〉 6. 43. 21 H. 7. 23. Perk. Sect. 69. heirs shall take benefit of the warranty of the Feoffor or his heires this is a good Defeasance of the warrantie And if he grant not to vouch this will discharge the voucher And if he grant not to bring a warrantia Cartae this will barre him of that remedy In like manner it is if the Grantee of a rent charge grant to the Grantor that he will not take any benefit by the Grant this is a totall discharge and if he grant he will not bring an Annuity this is a discharge of the person and if he grant that he will not distraine the land for the rent this is a discharge of the land If one make a Lease for life by Deed and after by another Deed Broo. Deâ—eas 11. Condition 120. doth grant to his Leassee that he shall not be impeached for waste this is a good discharge And if the Leassee afterwards grant by Deed to the Leassor that if he shall bring an Action of waste against the Leassee that he will not make use nor take advantage of the Deed of discharge this is a good discharge of the discharge So that hereby it seemes a Defeasance may bee of a Defeasance and one Defeasance after another and * Agree Pasche 8. Ia. Co. B. regularly the last shall stand And therefore if a Lease for years be made on condition to pay 20 l. at Easter and the Lease to be void and before Easter the Leassor and Leassee agree that if the Leassor pay it at Easter following the Per Inst Bridgman Lease shall be void and before that time they make the like agreement for another yeare it seemes these be good Defeasances and that the last shall stand If the Defeasance after Execution made upon a Statute be thus Broo. Defeas 7. that if the Conusor pay so much money the Statute shall be void it seemes by this the Statute and Execution thereupon is void howbeit it is best to adde these words in the Defeasance and the Execution thereupon And now being comming towards an end we come to the last Assurance of a mans life or that Assurance kind of that men doe commonly make when they are neer and towards the
chargable for so much as is committed to him as the testator or intestate himselfe for this cause the Executor is said to represent the person of the Testator for as to the estate committed to his trust he may charge others and be charged himself sue and be sued as the Testator himselfe might And the estate he hath by his Executorship is said to be in him to the use of the Testator and in his right and that he doth in the disposition of his estate is said to be in the right and to the use of the Testator also And the Administrator hath the same power and property over and in the goods and chattels the same remedy by Suit and so farr forth shall be charged as the Executor for they differ not in nature but in name only And yet the Administrator is but the Ordinaries deputy and he may revoke the Administration or call the Administrator to an account Swinb 12. Dâ—er 143. Coo. super Littl. 112. Litt. Sect. 168. Coo. 〈◊〉 â—1 A Testament is of that nature that it doth much differ from 3. The nature and effect of a Testament and of a Codicill other acts and deeds that men doe and execute in their life times for albeit it be made sealed and published in never so solemn a manner yet it hath no life nor vertue in it untill the testators death for it is a Maxime in law Omne Testamentum morte consummatunâ— est Et voluntas ambulatoria usque aâ— extremum vitae exitum it is therefore resembled untill death to the interlocutory sentence and after death to the definitive sentence of a Iudge And hence it is said Sed legum servandafides suprema voluntas Quod mandat fieriqu jubet parere necesse est a 〈◊〉 〈◊〉 〈◊〉 Sect. 30â— And for this cause a man may alter or make void his will at his pleasure and he may make as many new Wills and Testaments as he will and there is no meanes under the Sun to barre a man of this liberty b Lin. Sect. 168. Perk. Sect. â—7â— And the latter Testament doth alwaies revoke and overthrow the former but otherwise it is of a codicill c Swâ—â—b 13. 14. for a man may make as many of these as he will and make no Testament at all d Broo. Testament 20. or if he make a Testament he may afterwards make as many codiciâ—s as he will and one of them will not overthrow the other for in the first case they must be all annexed to the letters of administration and the Administrator must perform them and in the latter case they must be all annexed to the Testament and the Executor must take care to performe them e Plow 343 â—44 A Testament therefore is said to have three degrees 1. An Inception which is the making of it 2. A Progression which is the publication of it 3. A Consummation which is the death of the testator f Coo. super Litt. 112. In Grants therefore the first is of greatest force but in Testaments the last is of greatest force But when a Testament is perfect by the death of the party it doth as effectually give and transferre estates and alter the property of lands and goods as acts executed by deed in the life time of the parties 〈◊〉 for hereby discents of lands are prevented and a man may make estates in Fee-simple â—â—itt Sect. 1â—7 168. Fee-taile for life or yeares of lands tenements rents reversions or services as effectually as by deed and these estates also will be good without any Livery of Seisin or Attournement And hereby also rents and power to distraine for them may be reserved conditions created and annexed to eâ—â—ates or things devised 〈◊〉 And therefore they that take by devises of lands are said to take 〈◊〉 Perk. Secâ— 505. in the nature purchasors 〈◊〉 And if therefore a tenant in taile make a Feoffment to the use of himselfe in Fee and after devise the same 〈◊〉 Dyer 221. land to his wife in fee and die the sonne is not remitted though the Father die seised for the devise doth prevent the discent To the making of every good Testament these things are requisite Coo. 6. 23. 4. What shall â—e said a good and a sufficient Testament Or not 1. That the Testator be a person able to make a Testament and not disabled for any speciall cause either in respect of his person mind or condition or in respect of the thing whereof the Testament is to be made And for this it must be knowne k Sâ—â—t 32. 34 H. 8. c. 5. Coo 4. 51. Broo. Testament 13. That a woman that hath a husband cannot make a Testament of her land First in respect of the person that doth make it and the thing whereof it is made And what Persons may make a Testament And of what things or not And how or goods except it be in some speciall cases for of her lands shee can make no Testament with or without her husbands consent l 〈◊〉 H. 7. 14. Perk. Sect. â—0â— Fitz. Executor 〈◊〉 of the goods and chattels she hath as Executrix to any other she may make an Executor without her husbands consent for if she do not so the Administration of them must be granted to the next of kin to the deceased Testator and shall not goe to the husband m Plow 526. Fitz. Executor 109. but of them she can make no devise with or without her husbands leave for they are not devisable and if shee doe devise them the devise is void And of the things due to the wife whereof she was not possessed during the marriage as things in action and the like it seemes she may make her Testament at least she may make her husband Executor n 12 H. 〈◊〉 24. 18 Ed. 4. 11. Perk. sect 501. Fit Executor 5. 28. 109. Broo Testament 〈◊〉 of her Paraphonalia viz. A Fame Covert her necessary wearing apparell being that which is fit for one of her rank some say shee may make a Testament without her husbands leave others doubt of this howbeit all agree that shee and not his Executor shall have this after her husbands death and that the husband cannot give it away from her And of the goods and chattels her husband hath either by her or otherwise shee may not make a Testament without the licence and consent of her husband first had so to do But with his leave and consent she may make a Testament of his goods and make him her Executor if shee will And it is said also that if shee do make a Testament of his goods in truth without his leave and consent and he after her death suffer the Will to bee proved and deliver the goods accordingly in this case the Testament is good And yet if the husband give his wife leave to make a Testament of his goods and she do so he may
revoke the same at any time in her life time or after her death before the Will be proved But a woman after contract with any man may before the marriage make a Testament aswell as any other and is not at all disabled hereby An Infant untill he be of the age of 21 yeares can make no An Infant Testament of his lands by the Statutes of 32. 34. H. 8 But Sâ—ar 32. Ed. 34. H. 8. cap. 5. Perk. Sect. 503. â—04 Br. Custome â—0 Swâ—â— â—7 38. by speciall custome in some places where land is devisable by custome he may devise it sooner And of his goods and chattels if he bee a boy he may make a Testament at fourteene yeares of age and not before and if a maid at twelve yeares of age and not before and then they may do it without and against the consent of their Tutor Father or Guardian o Coo. super Litt. 89 And yet some say an Infant cannot make a Testament of his goods and chattels untill he he be eighteene yeares of age p Perk. Sect. 503. 504. 24. Swinb 37. 40. A madd or lunatick person during the time of his insanity of mind cannot make a Testament of A Lunaticke person lands or goods but such a one as hath his lucida intervaâ—la cleere or calme intermissions may during the time of such quietnesse and freedom of mind make his Testament and it will bee good So also an Idiote i. such a one as cannot number twenty or tell An Idiot what age he is or the like cannot make a Testament or dispose of his lands or goods and albeit he doe make a wise reasonable and Swinb 39. 40. sensible Testament yet is the Testament void But such a one as is of a meane understanding only that hath grossum caput and is of the middle sort between a wise man and a foole is not prohibited to make a Testament So also an old man that by reason of his great age is childish againe or so forgetfull that he doth forget An old man Swinb 42. his own name cannot make a Testament for a Testament made by such a one is void So also it seemes a drunken man that is so excessively drunk that he is deprived of the use of reason and understanding during that time may not make a Testament for it is requisite when the Testator doth make his will that he be of sound and perfect memory q Coo. 6. 23. Hill 3. Car. per the Lord keeper in the Chancery i. e. that he have a reasonable memory and understanding to dispose of his estate with reason r Swinb 53. A man that is both deafe and dumb and that is so by nature cannot make A deafe and dumb man a Testament But a man that is so by accident may by writing or signes make a Testament And so may a man that is deafe or dumb by nature or accident And so also may a man that is blind s 〈◊〉 B. R. 7. Iac. An alien borne cannot make a Testament of lands or goods An alien A man that is entred into Religion cannot make a Testament t Stat. 5. 6 Ed. 6. c. 11. Swinb 54. A Traitor attainted from the time of the Treason committed can make A Traitor no Testament of his lands or goods for they are all forfeit to the King but after the time he hath a pardon from the King for his offence he may make a Testament of his lands or goods as another man A man that is attainted or convict of Felony cannot make a Testament of his lands or goods for they are forfeit but if a man Preâ—â—gativa Regis Plow 258 259. A Felon be only indicted and die before Attainder his Testament is good for his lands and goods both And if hee be indicted and will not answer upon his arraignment but standeth mute c. in this case his lands are not forfeit and therefore it seemes hee may make a Testament of them And if a man kill himselfe his Testament as to his goods and chattels is void but as to his lands is good Plow 261. A â—elo de se A man that is outlawed in a personall action cannot make a Testament of his goods and chattels so long as the outlawry doth continne Fitz. Dec. 16. An outlawed person in force but of his lands he may make a Testament The head or any of the members of a corporation may not make a Testament Fitz. Testament 1. A Corporation of the lands or goods they have in â—ommon for they shall goe in succession A Villaine cannot make a Testament of his lands A Villaine or goods after the Lord hath seised them But here note that howsoever the Testaments of Traitors Aliens Felons Out-lawed persons and Villaines be void as to the King or Lord that hath right to the lands or goods by forfeiture or otherwise yet it seemes the Testament is good against the Testator himself and all others but such persons only And here note further also By the civill law Swinb 155 c. See the Stat. 32. 34 H. 8. Perk. Sect. 496. also the Testaments of divers others as Excommunicate persons Hereticks Usurers Incestuous persons Sodomites Libellers and the like are void But by our law the Testaments of such persons at least as to their lands are good by the Statutes that do enable men to devise their lands But all other persons whatsoever male or female old or young lay or spirituall rich or poore at any time before their death whiles they are able to speak so distinctly or write so plainly as another may understand them and understand that they understand themselves may make Testaments of their lands goods and chattels and that albeit they have sworne to the contrary and none are restrained of this liberty but such as are before named * See more infra at Numb 7. Swin 9. 131. 324. 325. See more infra to this matter The second thing required to the making of a good Testament is Secondly in respect of the mind of him that doth make â—t that he that doth make it have at the time of the making of it Animum testandi 〈◊〉 a mind to dispose a firme resolution and advised determination to make a Testament otherwise the Testament will be void for it is the mind not the words of the Testator that doth give life to the Testament for if a man rashly unadvisedly incidently jestingly or boastingly and not seriously write or say that such a one shall be his Executor or have all his goods or that he will give to such a one such a thing this is no Testament nor to bee regarded And the mind of the Testator herein is to bee discovered by circumstances for if at the time hee bee sick or set himselfe seriously to make his Testament or require witnesses to beare witnesse of
it it shall be deemed in earnest but if it bee by way of discourse only or of somewhat â—e would do hereafter or the like it shall be taken for nothing The third thing required in a good Testament is that the minde of the Testator in the making of it bee free and not moved by Thirdly in respect of the occasion or motive of it Swinb 283. 284. 285. 286. feare fraud or flattery for when a Testator is moved to make his Testament by feare or circuâ—vented by fraud or overcome by some immoderate flattery the samâ— is void or at least voidable by exception And therefore if a man by occasion of some present fear or violence or threatning of future evils do at the same time or afterwards by the same motive make a Testament this Testament is void not only as to him that put him so in feare but as to all others albeit the testator confirm it with an arch But if the cause of feare be some vaine matter or being weighty is removed and the testator doth afterwards when the â—eaâ—e is past confirm the Testament in this case perhaps the Testament may beâ— good And if a man by occasion of some fraud or deceit bee moved to make a Testament if the deceit be such as may move a prudent man or woman and if it be evill also the Testament is void or voidable at the least but if the deceit be light and small or if it be to a good end as where a man is about to give all his estate to some lewd person from his wife and children and they perswade the Testator that the lewd fellow is dead or the like and thereby procure him to give his estate to them this is a good Testament And one may by honest intercessions and modest perswasions procure another to make himselfe or a stranger Executor to him or the like and this will not hurt the Testament Also a man may use fair and flattering speeches to move the Testator to make his Testament and to give his estate unto himself or some friend of his exâ—â—pt it be in case where the â—latterer doth first beate or â—hreaten him or put him in fear or to his â—lattery joineth fraud and deceit or the Testator is a person of weak judgement or under the danger or government of the â—latterer as when the Physician shall perswade his Patient under his hands to make his Testament and give his estate to himself or the wife attending on her husband in his sicknesse shall neglect him and continually provoke him to give her all or where the perswader is importunate and wil have no denial or when there is another Testament made before for in all these cases the Testament wil be in danger to be avoided And if I be much priviâ— to another mans minde and he tell me often in his health how hee doth intend to settle his estate and he being sick I doe of mine own head draw a Will according to his minde before declared to me and bring it to him and ask him whether this shall be his Will or no and he doth consider of it and then deliver it back to me and say yea this is a good Testament But if otherwise some friends of a sick man of their own heads shall make a Will and bring it to a man in extremity of sicknesse and read it to him and ask him whether this shall be his Will and he say yea yea Or if a man be in great extremity and his friends presse him much and so wrest words from him especially if it be in advantage of them or some friends of theirs in these cases the Testaments are very suspiâ—ious But as touching these two last things Quâ—re how they shall avail in the Wills of land which are not regulated so much by the Civill Law The fourth thing required in the making of a good Testament is Swinb 112. Broo. Test 20. Fourthly in respect of the manner and form of the disposition that that form and order that the Law prescribeth be observed in the the disposition And therefore 1. that there be an Executor named in all Testaments of goods and chattels and that that Executor named be capable of the Executorship for this is said to be the head and foundation of the Testament for if there be never so many First naming of an Execuâ—or Legacies given and no Executor made this disposition is but a a Codicill and cannot properly bee called a Testament for in this case the party dead is said to die intestate and the Administration of his goods must be granted to the Widdow or next of kinne whereas on the other side if an Executor be appointed albeit there be no Legacy given yet this disposition is and is properly said to be a Testament 2. If the Testament be of lands or Tenements it must be Secondly if it be of lands it must be in writing in writing and it must be committed to writing at the time of the Stat. 32. 34 〈◊〉 8. Perk. Sect. 476 47â— Dyer 72. Plow 345. Coo. 4. 60. Dyer 53. making thereof And it is not sufficient that it bee put in writing after the death of the Testator being first made by word of mouth only for then it is but Nuncupative still But if the Testament bee first made by word of mouth and be afterwards written and then brought to the Testator and he approve it for his Testament Or if the Testator when he doth declare his minde doth appoint that the same shall be written and thereupon the same is written accordingly in the life time of the Testator these are good Testaments of land and as good as if they be written at the first If therefore one be very sick and another come to him and ask him whether his wife shall have his land and he say yea and a Clerk being present doth put this in writing without any precedent commandement or subsequent allowance of the sick man this is no good Testament of the land So if one declare his whole minde before Witnesses and send for a Notary to write it and die before he come and he write it after his death this is no good Testament for his lands but a good Nuncupative Will for his goods and chattels except he declare his minde to be that it shall not be his Will unlesse it bee put in writing for then perhaps it may not be a good Will for his goods and chattels So if â—he that doth write the Will cannot hear Adâ—udged Trin. 10. 〈◊〉 the party speak and another that stands by the sick man doth tell him what he doth say in this case if there be none others prâ—sent to prove that he reported the very words of the sick man this will be no good Testament of the Land But if a Notary take direction from the sick man for his Will and after goe away and write it and then doth
bring it againe and reade it to the Testator and he approve it Or if it be written from his mouth by the Notary according to his minde and his mind were to have it written albeit it be not shewed or read to him afterwards these are good Testaments So if the Notary doe only take certaine rude noâ—â—s or directions from the sick man which he doth agree unto and they bee afterwards written faire in his life time and not shewed to him againe or not written faire untill after his death these are good Testaments of lands If a sick man bid the Notary make a Testaâ—ant of his lands but doth not tell him how and the Notary make a devise of it after his own minde this is no good Testament and yet if it be after read unto and approved by the Testator it may be good And so if a Testament bee found written in the Testators house and not known by whom and it be read unto and approved by the Testator this is now a good Testament in writing for lands and Thirdly useâ— and lands by custome and chattels devisable without writing goods 3. Uses of lands before the Statute of uses might and lands and tenements devisable by Custome and goods and chattels may be disposed by word without writing and such Testaments of such things so made are good 4. It is not materiall in what matter Swinb paâ—t 4. Sect. 25. 26. or â—â—uffe whether in paper or parchment noâ— in what language whether Fourthly the matter or hand wherein and whereby it is written in Latin French or any other tongue nor in what hand or letters whether in Secretary hand Roman hand or Court hand or in any other hand a Testament be written so it be faire and legible that it may be read and understood Neither is it materiall whether the same be written at large or by notes or characters usuall or unusuall as xx s for twenty shillings or when the figure 2 is used in stead of the letter A if it be usuall in the Testators writing or the like for the Testament is good notwithstanding So also iâ— some words be omitted or sentences improper used when the intent and meaning is apparant as where a man saith I make my wiâ—e of my this my last Will and Testament leaving out the word Executrix yet the Testament is good and this shall be understood But if it be so done as it cannot be read or by reading the minde of the Testator cannot be known then is the Testament void and of no force In like manner as a Nuncupative Will is when the words spoken are so ambiguous obscure and uncertaine that thereby the meaning of the Testator cannot be known nor understood 5. Where Fifthly â—ealing and subscribing the Testators name noâ— needfull Perk. 476 477. writing is needfull as in the case of disposition of land it is there â—ealing of the Testament or subscribing of the Testators name is not necessary And therefore if a man by himselfe or another doe make a Testament of his land and doe not put his Seale or name to it if hee agree to it this is a sufficient Testament 6. If whiles the Testator is making his Will and whiles he intendeth Swinb 6. â—it Broo. Sect. 300. Swinb part 7. Sect. 10. Coo. 〈◊〉 â—1 Sixthly interruption in the making of the Will to proceed further at that time either by adding diminishing or altering he bee suddenly stricken with sicknesse or insanity of minde whereby he cannot proceed but gives it over in the middest and so he die it seemes in this case the whole Will is void And yet if a man begin his Will and make perfect Devises to one and then of himselfe give over untill another time or if a man make a perfect Devise to one and then die before he can make any Devise to any others it seemes these are good Testaments for as much as is done And therefore it is said if one command another to make his Will and by it to devise White Acre to I S and his heirs and Black Acre to I N and his heirs and he write the Devise to I S and his heiâ—s and the Testator die before he can write the Devise to I N and his heires this is a good Devise to I S but a void Devise to I N and his heires But if a man bid the Notary write a â—evise of his land to I S upon condition and the Notary write the Deviâ—e to I S but the Testator dyeth before he can write the condition in this case the whole Devise is void But a man may if he Swinb 13â— please make a Testament of part of his goods and die â—ntestate for the rest and that disposition he doth make is good for so much 7. The last thing required to the perfection of a Testament is that it bee Seventhly in respect of the proofe of it and what shall be said a sufficient proofe of a Testament or not proved for if it be never so well made and be in truth the Testament of the Testator yet if it cannot be by proofe made to appear so it is but a void Testament and of no force at all And therefore herein these things are to be known 1. That a Nuncupative Testament Swinb paâ—â— 7. Sect. 13. part 〈◊〉 〈◊〉 2â— must be proved by two Witnesses at the least and those must be such as are without exception 2. A written Testament when it is written with the Testators own hand doth prove and approve it selfe and therefore need not the help of Witnesses to prove it And for this cause if 〈◊〉 mans Testament be â—ound written faire and perfect with his own hand after his death albeit it be noâ— subscribed with his name sealed with his Seale or have any Witnesses to it if it be known or can be proved to be his hand it is held to be a good Testament and a sufficient proof of it selfe but if it be sealed with the Seale and subscribed with the name of the Testator and can be proved by Witnesses it is the more authentick And when it is found amongst the choise evidences of the Testator or fast locked up in a safe place it is the more esteemed for if it be written in another hand and the Testators hand and Seale or one of them noâ— to it albeit it be â—ound in such a place as before yet some proof will be expected of it further by Witnesses in that case And iâ— a writing be found under the Testators own hand yet if it be but a scribled writing written Copie-wise with a great distance between every line without any date in strange characters with many interlinings and lying amongst his void papers or the like this will not bee esteemed a sufficient testament nor a good proofe of it but it shall be accounted rather a draught or image of the Testators Will for a direction to him
of a Subject by Socage and he devise all the Capite land to a stranger that this is a good Devise for the whole and that the King shall be satisfied by the Socage land And if it be of the value of the third part albeit it be but of an estate Taile whereof the Ancestor was seised or it be new purchased land yet it is sufficient And therefore if some lands be given to a man and the heirs of his body of the value of 10 l. per annum and he be seised of other lands in Fee-simple to the value of 20 l. per annum and all or part of these are held in Capite by Knights Service in this case he may devise the lands in Fee-simple and leave the entailed land to discend for a third part And if a man be seised of such land and convey it to the uses within the Statute or any of them and after purchase new land and leave that to discend this is sufficient 11. The third part that is left to discend to satisfie the King or other Coo. 3. 34. Lord must discend immediately and he must not stay for it And therefore if a man be seised of three Acres of land held by Knights Service in Capite and make a Lease of one Acre for life and after devise the other two Acres this Devise is not good for the whole two Acres but for two parts in three thereof only and albeit the Tenant for life die afterwards yet this will not help the matter But if the Devisor leave a full third part immediately to discend in Fee-simple or in Fee-taile he may devise the other two parts at his pleasure And if he doe not leave a third part to the full it must be made up and supplyed out of the other two parts which in case of the King is done by Commission out of the Court of Wards and in case of a Subject by Commission out of the Chancery 12. As the Coo. super Litt. 111. 9. â—33 3. 32. 30. third part left to discend must bee of as good value as either of the other two parts is at the time of the death of the Testator or otherwise the Devise of all the residue will not be good so must it bee taken out of the lands of the Testator indifferently And therefore if a man be seised in Fee of land held in Chiefe by Knights Service and make a Feoffment of the one halfe of it to the use of himselfe for life and after to the use of one he doth intend to marry and after to the use of another in remainder or to any other such like uses within the Statute and after he doth marry the same woman and after he deviseth the other moity to his wife children or any other in this case albeit the wives estate have precedency yet the King shall have his third part out of both the moities equally So if one be seised of Gavelkind land held in Capite and his sonne being dead devise part of it to one of his grand-children and part of it to another and part to a third Taile in this case the Kings third part shall come out of all the three parts equally and accordingly the Devise will be void for so much to every one of them So if one hold three severall Mannors of three severall Lords he cannot devise two of these Mannors leaving a three to discend but he may devise two parts of every of the third Mannors and a third part of each Mannor must discend to each Lord for there must be an equallity in these things For further illustration of which things the examples following are to be heeded W B being seised of the Mannor of Thoby in Capite Coo. 3. â—ut ler Bakeâ—s câ—se and of lands in Fobbing held in Socage in Fee and he and his wife being seised of the Mannor of Hinton held in Capite to them and the heiâ—es of their two bodies begotten by an estate made to them during the Coverture for the joynture of the wise the reversion to W in Fee and Thoby doth amount to the value of two parts and Hinton and Fobbing to a third part and W B by his Will in writing doth devise Thoby to his wife for life upon condition that she shall not take her former Joynture with divers remainders over and die and shee refused her former Jointure in Hinton in this case it was adjudged that the Devise was not good for the whole Mannor of Thoby and that the Mannor of Hinton was not a sufficient third part to discend L L being seised of the Mannor of Affaland Coo. 10. 78. I â—onard Leoveis case Coo. 11. 24. Heaâ—ton Rillaton Pâ—ngelley Willesworthy and Trivesquite the last only held in Capite in Fee and having issue Thomas his eldest sonne William Humfry and Richard younger sonnes which Richard had issue Leonard makes a Feoffment of these Mannors to divers uses viz. of the Mannors of R P W and A to the use of the Feoffor for life and after to the use of such person as he should appoint by his last Will and after to the use of W his second sonne in Taile and after to his other sonnes in Taile and after to the use of the Feoffor and his wâ—fe in Taile and after to the use of the Feoffor and his heirs for for ever And of the Mannor of H to such like uses and of the Mannor of T also to such like uses and the same uses were with power of Revocation And after the Feoffor purchased eight Acres of other land held in Socage and after did revoke the uses of the Mannors of R P W and A and after devised some of the said Mannors excepting some peeces and the said eight Acres of land to his eldest sonne and the heirs males of his body for 500 yeares on certain conditions and if he die without issue that it shall goe to William c. and afterwards he dyed seised of the said eight Acres of land and the lands devised by the Will at the time of the death of the â—estator were of the yearly value of 24 l. 14 s. 10 d. per annum non ultra and the lands whereof the Feoffment was made and not revoked were at the time of the death of the Testator of the value of 55 l. 6 s. 8 d. in this caâ—e it was adjudged that the Devise of the eight Acres newly purchased was void at least for a third part and restrained by the reversion in Fee expectant upon the estate Taile made to the younger sonne of the Mannor held in Capite And it was resolved That if a man be seised of three Acres of equall yearly value one of them held of the King by Knights Service in Capite and have issue two sonnes and give the Acre so held and another of the Acres to his younger sonne whereby hee hath so executed his power by the Statute that hee
another this cannot be a good Devise of the land but perhaps the Devisee may in a Court of equity compell him that hath received the money to assure and settle the land according to the Devise And if Plow 344. Fitz. Devise 7. one devise another mans land this Devise is void but if he after the Devise made purchase this land now is the Devise good If a man bargaine and sell land to me on condition to reenter if he pay Adiudged Powâ—ly Blakemans case me 10l and I covenant that I will not take the profits untill default of paiment and he make a Lease of 6 yeares of it to another and after breake the condition in this case I may devise this land and the devise will be good 14. A Seigniory Rent or the like Perk. Sect. 538. Litt. Sect. 585. 586. Dyer 253. 140. 5. 52. F. N. B. 121. Coo. super Litt. 111. 8. 83. 3. 33. thing is devisable as land is and will passe without the Attu nement Devise of Rent Coâ—â—mon Seignâ—ory or the like of the Tenant The like Law is of a reversion also And a man may devise a Rent de novo issuing out of land or a Rent issuing out of land that is in â—sse before And therefore if a man make a Lease for life or yeares rendring Rent the Lessor may devise this Rent So if if a Rent be granted to one and his heires the Grantee may devise this rent So a man that is seised of land in Fee may devise any rent out of it at his pleasure And therefore if a man that holdeth his land by Knights service in Cheiâ—e by his Will devise any Rent Common or other profit out of it this devise is good and that albeit the Rent or Profit doth amount to the value of the whole land as if one have 3 Acres of land worth 3s by the yeare and he devise 3s Rent out of it this is a good devise of the whole Rent but in this case the Rent shall issue out of two parts of the land and a third part shall be free and not charged with it but he may charge 2 parts in 3 parts of such land at his pleasure And so also it is if a man have lands holden by Knights service and not in Capite and other lands in Socage he may charge two parts of the Knights service land and all his Socage land at his pleasure And if a man have lands held in Socage and no lands held in Capite or by Knights service he may devise what rent he will out of it But a man cannot devise a Rent Common or any such like thing out of another mans land that is none of his owne nor out of that he hath nor And therefore if one devise 10l out of his Mannor of Dale when in truth he hath no such Mannor this Devise is void If a rent be granted to me for the life of I S it Oyeâ— 253. seemes I may not devise this rent but that the Terre-tenant shall Occupant hold it as an Occupant 15. Where a man is seised of a house in Fee and may devise the house it selfe there it seemes he may devise Devise of houses dooâ—es glasse wainscot c. Coo. 4. 63. Perk. Sect. 512. 518. Coo. 11. Rich. Liâ—ords case â—â—lw 88. the doores windowes wainscot or the like Incidents of the house And where a man may devise the land it selfe it seemes hee may devise the trees or grasse growing upon the land Quando licet â—d quod majus videtur licere id quod minus But where the land it selfe is not devisable there such things incident or annexed to or growing or being upon it are not devisable And therefore the tenant in taile for life or yeares of land may not devise the houses or windowes doores or wainscot of houses or trees or grasse being or growing thereupon but this devise is void 16. Where a man Perk. Sect. 500. Dyer Devise of a Vse hath a Use that is not executed by the Statute of Uses but remains at the Common-law he may devise it as he may any other thing And therefore if one be possessed of a Terme of yeares and grant it over to another to the use of the Grantor he may dispose this use See Vses by his Will for it is in the nature of a Chattell But if a man have such a Use in jointenancy he cannot devise it 17. All manner of Swinb part 3. Sect. 5. Perk. Sect 511. 525 goods and chattels reall and personall may be devised by Testament Devise of goods and chattels And therefore Leases for years of lands Grants for yeares of Rent Common or the like Wardships of the bodies and lands of heirs of Tenants by tenure in Capite and by Knights Service Cattell as oxen sheepe horses c. gold silver money plate houshold-stuffe as beds pots panns platters c. corne wooll and implements of husbandry may be devised by Will and not only those a man hath at the time of the Devise but those a man is to have or may have afterwards And therefore it is held a man may give his corne that shall grow in such a ground the next yeare after his death or the wooll or lambs his flock of sheep shall yeild the next yeare after his death and that these Devises are good but if in this case there shall be no such corn growing in that ground or any lambs or wooll arising out of his â—lock that yeare the Legacy is fruitlesse And yet if the Testator devise to I S 20 quarters of corne or 20 lambs and both will that the same shall be paid out of his corne that shall grow or out of his â—lock the next yeare and there be not so much corne or not so many lambs or not any at all growing or arising yet this is a good Devise and the things must be paid In like manner if a man give to I S a horse or a yoke of oxen in this case albeit the Testator have neither horse nor yoke of oxen yet the Devise is good and must be performed 18. Things in action as debts and the like albeit they be not grantable by deed in the life time of the party yet are 〈◊〉 of debts and things in action possibilities and incertainties they devisable by Will And therefore if the Testator doth by his Will give any debt due to him on an obligation or on a contract or the like this Devise is good And the thing devised may bee had thus the Testator may if he will make the Legatury Executor as to that debt or if he do not the Legatary may sue the Executor in the Spirituall Court or in some Court of equity and thereby compell the Executor either to recover it himself and so to pay it to the Legatary or to give the Legatary power to sue for and recover it himselfe in the Executors
this doth not alter the custome but by this all the sonnes shall take If a man devise his land to his wife for life the remainder to â—â—tz 〈◊〉 2. his sonne and the heirs males of his body engendred and for default of such issue the remainder to his next heir male and the heires males of the body of that heire male and after his sonne die without issue living his wife and the Devisor hath issue a daughter who hath issue a sonne in this case and by this Devise it seemes the daughter and not her sonne shall have the land and that in Fee-simple If a man devise his land to his wife for life and after to his own Trin. 9. â—ac Aâ—â—â—dged Curteâ—s case right heirs males and he hath issue three daughters and after his death one of them hath a sonne in this case and by this Devise the next collaterall heire male of the Devisor and not the sonne of the daughter shall have the land If a man have issue two sonnes and a daughter and devise his Dâ—er 122. land to his wife for tenne yeares the remainder to his younger sonne and his heirs and if either of the said two sonnes die without issue of their bodies the remainder to the daughter and her heirs and the younger sonne die in the life time of the father and after the father die in this case and by this Devise the daughter hath a good remainder but it seemes the elder sonne hath first an estate Taile by the intent of the Devisor If a man devise some land to A his eldest daughter and her Dâ—eâ— 330. heires and if she die without issue to T his youngest daughter and her heirs and if she die within 16 years that A shall have her part to her and her heirs and if A marry such a one that T shall have her part to her and her heirs and if T die having no issue that all her part shall goe to M and E his Neâ—ces and if A die without issue that T shall have her part to her and her heires and T after the 16 years doth die without issue in this case the Neeces M and E and not A shall have her part that is dead If land be devised to A for life the remainder to a Monke for Perk. Sect. 5â—6 â—67 life the remainder to I S in Fee by this Devise he in the remainder in Fee shall take presently after the first estate for life ended and if the Devise be to a Monke for life the remainder to I S in Fee by this I S shall take presently If a man devise his land to a womâ—n and her brother and the Dyer 326. heirs of either of their two bodies and for default of issue of the said woman and her brother the remainder to the right heires of the Devisor and after the death oâ— the Devisor the brother dyeth without issue and the sister hath issue and dyeth in this case and by this Devise her issue shall have a moity and no more of the land If one devise two parts of his Land to his four younger sonnes Dyer 304. in Taile and that if the Infant in the wombe of his wife be a sonne that he shall have the fifth part as co-heire with the four and if his five sonnes die without issue that the two parts shall revert and then the Devisor dyeth and after a sonne is born and after he and three of the other sonnes die in this case and by this Devise the Infant shall not take any thing because he is uncapable and the two parts shall not revert to the heire untill the five sons be dead without issue If one devise the Mannor of Dale to the eldest sonne of I S in Adiudged Co. B. M. 36. 37 Eliz. Brownes case Fee and the Mannor of Sale to I D for life the remainder to such of the children of I S as shall be then living and shall have the Mannor of Dale and the eldest sonne of I S after the Testators death doth sell the Mannor of Dale and after I D dyeth in this case and by this Devise none of the children of I S shall have the Mannor of Dale but it shall goe to the heires of the Devisor If one devise his land to the children of I S by this devise the children that I S hath at the time of the Devise or at the most the children that I S hath at the time of the death of the Testator and not any of them that shall bee borne after his death shall take If one have two daughters by divers women and devise a moity of Dyer 34â— his land to his wife for seven yeares and that the elder daughter shall enter into the other moity at her day of marriage and if his wife be with child of a daughter that then she shall have an equall portion with the other sister and the Devisor dyeth and the wife doth enter and hath not a daughter and then the elder daughter doth take a husband and enters upon a moity the younger daughter dies without issue and the seven years expire in this case and by this devise the collaterall heir of the younger daughter shall have the moity of the whole and not the moity of a moity only and that by discent If a man have issue B C and D sonnes and he devise his land Curia B. R. Mich. 20. Iaâ— Next of blood to D his sonne the remainder proximo de sanguine or to the next of blood of the Testator in this case and by this Devise B shall take after the death of D as the next of blood In like manner if the Testator have four daughters and he devise his land to the youngest in Taile the remainder to the next of blood by this Devise the eldest daughter and not all the rest shall have the land And if the Testator have issue B his elder sonne and C his younger son and B have issue D his sonne and B is attainted and dyeth and the Testator deviseth his land to I S for life the remainder to the next of blood of the Testator by this Devise D and not C shall have the land If a man have issue B and C sonnes and D a daughter and devise Broo. Dâ—scent Piâ— 19. 8. Aâ—â— Pl. 4. his land to C for life and after that it shall remaine to the next of blood to his children to the next heirs of the blood of his children and C dyeth and B dyeth without issue and D hath issue a daughter in this case and by this Devise the heires of A shall not take but the next of blood to the children of A which is the daughter of D and his children themselves are excluded and if the sonnes have any issues living they shall take with her by this Devise If the Testator have issue by A his first wife three daughters â—â—â—â—dged Mâ—
20. Iâ—c periâ— versâ—s Peaâ—se B. R. Joane Elizabeth and Anne and by B his second wife â—lice and Elizabeth and by C his third wife William a sonne and three daughters Mary Katharine and Johan and he devise his land to Johan his youngest daughter for life paying 1â—s 4d to the sonne and after her death to the sonne and the heirs of his body and after his death without issue to Elizabeth the daughter of the second wife and Mary the daughter of the third wife for their lives the remainder in Latin to the next of the blood of the Devisor for ever and the elder Joan hath issue I P and dyeth the sonne dyeth without issue the younger Joan hath issue and dyeth Elizabeth of the first wife hath issue and dyeth Anne dyeth having issue Alice dyeth without issue Mary and Elizabeth born of the second wife die without issue Katherine dyeth without issue in this case and by this Devise the sonne and heir of the elder daughter after the death of the sonne without issue and of Elizabeth and Mary and not all or any of the children or their children shall have the land because proximo in Latin doth devote a person certain and there be expresse Devises to others But if in this case the remainder bee limited in generall to the next of blood without any other matter all the daughters perhaps may have it as Joint-tenants If a man have two sonnes and a daughter which hath two daughters â—â—â—z Devise 9. Perk. Sect. 508. and he devise his land to a stranger for life the remainder to his second sonne for life the remainder in Fee to the next of blood to his sonne in this case if the eldest sonne die without issue the daughter and her daughters shall have the land Whatsoever will passe by any words in a Deed will passe by Secondly in respect of the thing devised See in the Exposion of Deeds supra the same words in a Will and more also for a Will is alwayes more favourably interpreted then a Deed And therefore if a man devise the profits use or occupation of land by this Devise the land it Coo. 8. 94. Plow 525. selfe is devised If a man devise thus I give all my lands to I S or I give all my Mevils case Fitz. Deviâ—e 4. Bâ—oo Done 41. tenemeâ—ts to I S or I give all my lands and tenements to I S by this Devise is given and I S shall have not only all the lands whereof the Devisor is sole seised but also all the lands whereof he is seised in common or co-parcinery with another and not only the lands hee hath in possession but also the lands hee hath in reversion of any estate in Fee-simple but by this Devise regularly Leases for years of lands will passe If a man devise thus I give all my land in possession only by Plow 66. this Devise there is given the lands he hath in possession only and none of the lands he hath in reversion If a man be seised of land in Fee-simple in Dale and devise thus Plow 343. 544. old N. 〈◊〉 89. Fitz. Devise 17. I give all my lands in Dale to I S and after Will made and published he doth purchase other lands in Dale and dyeth in this case and by this devise I S shall not have the new purchased lands and in this case it hath beene held further That if the Testator doe by word of mouth after the purchase of the same lands declare himselfe to be minded that I S shall have the same new purchased lands also by this Devise that notwithstanding I S shall not have them by this Devise * Trin. 37 Eliz. B. R. Breckford versus Parincoâ—e And yet it hath been adjudged That if in this case one come to the Devisor to buy his new purchased land and he say nay but I S shall have it as the rest that this is a new publication of the Will and that I S by this devise shall have these new purchased lands for a new publication of the Will in these cases will make the land to passe But if a man devise the Mannor of Dale and at the time of the devise he hath it not or devise his lands in Dale and at the time of the devise he hath no lands there and afterwards he doth purchase the Mannor of Dale or lands in Dale by this devise and in this case the Mannor and the new purchased lands will passe for in this case it shall be intended he meant to purchase it And yet the Statute enabling a man to devise lands saith Any person See before having c. Coo. 3. 30. If one have an ancient Tenement and lands belonging to it and Loftis versus Baker Hill 20. Ia. B. R. then purchase more lands and occupy them altogether with the Tenement many years and being all thus in his occupation he doth make a devise after this manner I give my Tenement in Dale and all my lands belonging to it now in my occupation to I S. by this devise I S shall have the ancient land onely and none of the new purchased land but if there be no ancient land belonging to the Tenement but new purchased land onely there perhaps it may be otherwise for in this case the words cannot else be satisfied As in case where a man hath some lands in Fee-simple and other lands for yeares onely in Dale and he devise all his lands and Tenements in Dale by this devise the lands he hath for years doth not passe but if he have no other lands in Dale but these lands in this case perhaps this land will passe If one have a moity of lands in Essex and a moity of lands in In Mevils case Kent and he devise thus I give my moities and all my other lands in Kent to I S it seems by this devise the moities in both Counties do passe and that I S shall have both the moities If a man be seised in Fee in possession of the moity of a Farm called Plich 20. 12â— Adiudged Scatergoods case the Farm of C. and of the reversion in Fee of the other moity expectant on a lease made to A and B for their lives and he make his Will thus I will that my wife shall have all my living which I now occupy untill my son come to 21. years of age and then I will have her have the thirds of all my living and that my sonne shall have all my Farm of C to him and his heirs by this devise if A and B dye before the heire be 21. yeares of age the wife shall have the thirds of the whole Farm and not of the moity in possession onely If a man be seised of land in a Village and in two Hamlets of the Dyer â—65 same Village and he devise all his lands in that Village and in one of the Hamlets by this
devise none of his land in the other Hamlet doth passe If a man make his Will the first day of May and thereby give the Plow 34â— Mannor of Dale to one in Fee and the tenth of May one of the Tenancies escheat and the 20. of May the Devisor dyeth in this case and by this devise it seems the Devisee shall have the Tenancie that doth escheat If one devise his land thus I give my land in Dale to I S and 3. In respect of the estate and time that is devised Fee-simple his heires or to I S in Fee or to I S in Fee-simple or to I S for Litt. Broo. Sect. â—â—3 Perk. Sect. 1. 6. Litt. Sect. 586. â—elw 4â— Coo. super Litt. 19. 20 H. 6. 35. Litt. B100 Sect. 432. 19. H 8. 10. ever or to I S Habendum sibi suis or to I S and his Assignes for ever or thus I give my land to I S to give sell or do therewith at his pleasure by all these and such like devises a Fee-simple estate is made of the thing devised and I S shall have the same to him and his heirs for ever But if land be granted by Deed after this manner I S by this grant in all these cases except onely in the Deed. first case hath onely an estate for life * Fitz Devise 111. And if a man devise his land to I S and say not how long nor for what time by this devise I S hath an estate for life only in the land If a man devise his land to I S and his Assignes without saying Coo. super Litt. 9. Perk. Sect. 57. 239 New Terms of the law tit Devise for ever it is said by some that by this devise I S hath onely an estate for life * Tâ—â—n 2. C. B. R. reply Daniels case Coo. 6. 16. Dyer 126. But the contrary is affirmed elsewhere and that it is a Fee-simple If one devise his land to his wife to dispose thereof at her will and pleasure and to give it to one of her sonnes in this case and by this devise she hath a Fee-simple but it is qualified for she must convey it to one of her children and cannot convey it to another If one devise his land to I S paying 10. l. and use no other words by this devise the Devisee hath the Fee-simple of the land albeit the 10. l. be not the hundredth part of the worth of the land * Adiudge Hill 36. Eliz Co. B. And yet if one devise his land to I S for his life paying 10. l. by this devise I S shall have an estate for life only If one devise land of the value of 50. l. per annum to J S for life the remainder to I D paying 40. l. to W. by this devise J D shall have the Fee simple of the remainder upon condition If one have two sonnes and he devise his land first to his wife and Hill 17. Iac. B. R. adiudged Spiceâ—s case then he saith thus In like manner I will that my sonne A. shall have it after my wives death and if my wife dye before my sonne B then that my sonne A shall pay to B 3. l. by the year during the life of B and also 20. l. to W S. by this devise A shall have the Fee-simple of this land â—f one devise his land thus I will my land to my sonne W for his life and after his death to my sonne T and if my sonne W purchase Câ—â—ia M 18. â—ac B. R. Green ver 〈◊〉 â—us Dewell land as good as that land for my sonne T then that my sonne W shall sell the land devised to my sonne T as his own and I will that my sonne W shall pay to his Sisters â—0 l. by 20. s. a year in this case and by this devise W hath a Fee-simple for power to sell giveth by implication an estate in Fee-simple and it is paying also c. If one devise land to his wife and her heires and if the heire put her out that she shall have other land by this devise she hath the Fee-simple Pasch 14. Iac. B. R. Curia of the first land and is not abridged by the latter words If one devise his land thus I give White Acre to my eldest sonne and his heires for his part Item Black Acre to my youngest sonne Trin. 30. Eliz. for his part by this devise the younger sonne shall have the Fee-simple of Black Acre So if I give White Acre to I S Item Black Acre to I S and his heires by this devise I S shall have the Fee-simple of White Acre also If one give land to his wife for life the remainder to his sonne and Perk. Sect. 566. the heires males of his body and for want of such issue the remainder to the next heire male of the Donor and the heires males of his body it seems by this devise that the next heire male of the sonne hath a Fee-simple If one devise his land thus I give my land in Dale to I S and to his or to the heires males or heires females of his body or of his Coo. super Lit. 21. 26. â—ee-taile body begotten or to I S and his issues male or his issues female or to I S and the heires males of his body begotten on M or to I S and E his wife and the heires males or heires females of their two bodies begotten or to I S and his heires if he shall have any heires of his body else that the land shall revert or to I S and his heires if he have any issue of his body or to I S and the right heires males of his body or to I S and his heires provided that if he dye without heires of his body that the land shall revert by all these and such like devises an estate taile is made of the thing devised and I S the Devisee shall have the same accordingly If one devise his land thus I give my land in Dale to I S et somini Coo. super Litt. 9. Broâ— tit taile 21. Coo. super Lit. 20. 6. 1â— suo by this devise I S hath an estate taile But if he say I give my Deed. land in Dale to I S et sanguini suo it is said by this devise I S hath the Fee-simple of the land If one devise his land to I S â—t exitibus vel prolâ—bus de corpore suo by this devise if I S have no children at the time it seems he hath an estate taile but by such a limitation by deed is made onely an estate for life If one devise his land thus I give my land in Dale to I S for life the remainder to I D and E his wife and their children or to I D and E his wife and their men children or to I D and E his wife and their issues by these
devises if the husband and wife have no children at the time of the devise is created an estate taile and if they have any children at the time of the devise then hereby is created an estate for all their lives onely in joyntenancie And if land be devised to A for life the remainder to B and the heires of his body the remainder to I S and his wife and after to their children by this devise I S and his wife have estates for their lives onely and their children after them estates for their lives joyntly And albeit they have no children at the time yet every child they shall have after may take by way of remainder And so also it seems is the law upon such a limitation by Deed Deed. If lands be devised to I S and his heires males or his heires females without saying of his body by this devise I S hath Deed Litt. Sect. 31. 9. H. 6. 25. 27. H. 8. 27. an estate taile But if such a limitation be by deed it is a Fee-simple If one have two sonnes and devise White Acre to his eldest sonne and his heires and Black acre to his youngest sonne and his heires Hill 22. Iac. B. R. Daniels case and if either of them dye without issue then that the other shall be his heire by this devise either of them hath an estate taile and no Fee-simple If one have land in Kent in W S and T and have one male child Adiudge M. 9. Iac. Wallops â—ase and a daughter and his brother hath three children B C and D and he devise his land thus Item I give my land in Kent to my male childe and his heires and if he dye without heires of his body that that the land in W shall go to B and his heires Item I will my land in S to C and his heires and my land in T to D and his heires in this case and by this devise the male child of the Devisor hath an estate taile in all the lands and after his death without heires it shall remaine according to the Will So that if one devise his land to his eldest sonne and his heires and if he dye without heires of his body that it shall remain to his youngest sonne and his heires by this devise the eldest sonne hath an estate taile and the youngest sonne the Fee-simple If one devise his land to his sonne W and if he marry and have any issue male begotten of the body of his wife then that issue to Coo. 9. 127 have it and if he have no issue male then to others in remainder by this devise it seems W hath an estate taile to him and the issues male begotten on the body of his wife If one devise White Acre to I S and the heirs of his body and then after saith thus and I will that I D shall have Black Acre in the same Perk. Sect. 561. 20. H. 6. 36. manner that I S hath White Acre by this devise I D hath an estate tail in Black Acre as I S hath in White Acre Et sic de similibus * Tr. 30. Eli. And if one devise White Acre to I S and then say Item Black Acre to I S and the heires of his body by this devise he hath an estate taile in both Acres If one devise his land to his wife for yeares the remainder to his younger sonne and his heires and if either of his two sonnes dye Dyer 122. without issue c. that it shall remaine to his daughter and her heires and the younger sonne dye in the life time of the Father and after the Father dyeth it seemeth by this devise the elder son shall have the land in taile If one devise his land to his wife for life and after to his sonne Adiudge Tri. 7. Iac. Co. B. Robinsons case and if his sonne dye without issue having no sonne or having no male then that it shall goe to another by this devise the sonne hath an Estate taile to him and the heires males of his body If lands be given to a man and woman unmarried and the heires of their two bodies or to the husband of A and wife of B and the Coo. super Litt. 20. 26. Plow 35. heires of their two bodies by these Devises are made estates in Taile If a man devise White acre to his three brothers and Black acre to C his brother so as he pay 10l to I S and otherwise that it shall remain Dyer 333. to the house provided that the same lands be not sold but go unto the next of name and blood that are males if it may be it seemes that by this devise C hath an estate tail in black acre and that if he die without issue it shall go to the three other brothers and their heires males in taile one after another and that white acre also is so entailed in every of their parts For the words shall remaine to the house shall be construed to the most worthy of the Family and the words that are males shall be construed in the future tense If land be devised to I S and the heires of his body and that if he die that it shall remain to I D by this Devise I S hath an estate Adiudg 14. Eliz. Coo. B. Trin. 9. Iac. B. R. Taile and the latter words do not qualify the former but I D must attend his death without heires of his body before he shall have the land If land be devised to I S and the heirs males of his body and if it Dyer 171. happen that he dye without heire of his body that it shall go to H and his heires by this Devise I S hath an estate to him and the heires males of his body and the subsequent words do not alter nor enlarge the estate If land be devised to I S and E his wife and to the heires of Coo. super Litt. 26. the body of the Survivor of them by this Devise the Survivor shall have a generall estate Taile If land be devised to I S and the heires he shall have by A his wife by this Devise I S hath a Fee Taile and not a Fee simple as Coo. super Litt. 26. Deed. he hath in case of such a limitation by deed If land be devised to I S and to the heires of the body of such a woman by this Devise I S hath an estate Taile and begotten Coo. super Litt. 26. shall be intended begotten by him If one devise land to his sonne and his heires and that if his sonne die within the age of 21 yeares or without issue that the land shall Adiudg M. 37. 38 Eliz. Sale versus Geâ—rard remain over and the son dieth within age having issue in this case and by this Devise the sonne hath an estate Taile and or in this place shall be taken for and If land
one doth devise his land to I S after the death of his wife that by this Devise the wife hath an estate for life by implication And therefore if a man devise thus I give my goods to my wife and that after her decease my sâ—nne and heire shall have the house where the goods are it is held by this Devise that the wife hath an estate for life in the house by implication for a man is bound to provide for his own wife But if a man devise his land to I S after the death of I W a stranger to the Devisor it seemes that by this Devise I W hath no estate at all by implication and that this doth but set forth when the estate of I S shall begin and that the intent of the Testator is that his heire shall have it untill that time If one devise land thus I give my land in Dale to I S to the intent Coo. 6. 16. 3. 20. Bâ—oo Estates 78. that with the profits thereof he shall bring up a child or to the intent that with the profits thereof he shall pay to A 10l or to the intent that he shall out of the profits thereof pay yearly 10l by these Devises I S hath only an estate for life albeit the payments to be made be greater then the rent of the land And therefore it is not like to the case before where a summe of money is to be paid presently If one devise his land thus I give my land to Alice my Cosin in Dyer 357. Fee-simple after her decease to W her sonne who is her heir apparant by this Devise she hath an estate for life first the remainder to her sonne for his life the remainder to the heirs of A in Fee-simple And so also is the Law when the Devise is to any other after that manner If my father be tenant for life of land the remainder to me in Fee Dver 371. and I devise this land to my wife rendring for her naturall life 40â— to the right heir of my father by this Devise my wife hath an estate for life after the death of my father If one devise his land unto his Executors untill his sonne shall Fâ—r 〈◊〉 come unto 21 yeares of age the profits to be imployed towards the â—oo 3. 20. performance of his Will and when he shall come to that age then that his sonne and his heires shall have it by this Devise the Executors shall have it untill he be 21 yeares of age and if he die before that time untill the time he should have been 21 yeares of age if he had lived so long and shall in this case shall be taken for should If one devise his land to his Executors for the paiment of his debts and untill his debts be paid by this Devise the Executors have Coo. super â—â—tt 42. but a chattell and an incertaine interest and they and their Executors shall hold it untill the debts â—e paid and no longer If one devise his land to I S and the heires males of his body Coo. 10. in Leonard â—oveis case 87. 46. for the term of fifty yeares it seemes that by this Devise I S hath but a Lease for so many yeares if the heires males of his body shall so long continue and that for want of issue male the terme of yeares shall end And in this case the Executor or Administrator 〈◊〉 not the heirs males of I S shall have it after his death If one devise his land thus I give to I S and I D and their Adiudged Loweâ— versus Câ—xe Mich. 37. 38. â—liz Co. B. Dyer 25. Lit. Bâ—o Seâ—â— 133. Lâ—tt 2â—3 Perk. Sect. 170. Dyer 350. heirs my land in Dale equally or my land in Dale to be equally Fourthly in respect of other 〈◊〉 divided by these Devises I S and I D shall have and hold the land not as â—ointenants but as Tenants in common so that the heire and not the servivor shall have his part that first dyeth And yet in case of such a limitation by Deed it is otherwise And if one devise his land to I S and I D and their heires without more words it seemes that by this Devise they shall take and hold as Joint-tenants * Dyer 326. And yet if one devise land to I S and I D and the heires of either of their bodies lawfully engâ—â—dred it seemes that by this Devise I S and I D shall take and hold aâ— Tenants in common and not as Ioint-tenants * Paâ—che 9. Ia. New mans case And if one devise his land to I S and I D thus I will that I S and I D shall have my lands in Dale and occupy them indifferently to them and their heires If one be possessed of a terme of yeares of land and devise the Hill â—3 Ia. B. R. Adiudged Blandfords case Devise of gâ—ods and chattels same to his wife during all the years and if she die within the years then to A and B his two sonnes if they have no issue male but if they or either of them have issue male then that it shall goe to First in respect of the person that shall take by the Dâ—vise the use of those issues male and she die and the two sonnes die without issue born one of their wives being privily with child of a sonne which after his death is borne in this case and by this devise this issue male shall have it assoone as he is borne If one be possessed of a terme of yeares and he dâ—vise it to another Coo. 10. 4â— Lampets case Perk Sect. 558. 559. and his heires or his heirs males by this Devise the Executors Executors or Administrators not the heirs of the Legatee shall have it And Hâ—ire therefore if Lessee for years of land devise all his interest therein to his wife if she live so long and after her death if any part of the term be to come devise the same to I S his sonne and the heirs of his body in this case and by this Devise the Executors and Administrators of I S not his heires shall have it at least so long as he hath any heires of his body And yet if one possessed of a term of years devise it to I S and after his death that the heir of I S shall have it in this case I S shall have so many years of the term as he shall live and the heir of I S and the Executor of that heir shall have the residue of the term If one give 10 l. to the children of I S and at the time of the Swinb 316. Devise I S hath foure children and after before the death of the Testator he happen to have two more in this case and by this Devise the two children he hath afterwards shall have no part of the 10 l. but those foure he had before shall have
it when they will if they be not hastned therunto by order of Court and when they doe sell they must all joyne in the sale by the Common-Law or otherwise the sale had not been good and therefore if one or more of them had dyed before the sale they that had survived or their Executos could never have sold it by this authority so likewise if any of the Executors had refused the charge of the Will the land could not have been sold by the rest unlesse the words of the Will had been that his Executors or some of them should sell it for in that case some of them even by the Common-Law it selfe might have sold and now also by the Statute of 21 H. 8. cap 4. some of them may sell it without the rest as if one give his land to A for life and that after his decease it shall be sold by his Executors and make foure Executors and one of them die during the life of A and then A dyeth in this case the other three Executors may sell So if one give his land in Taile and that if the Donee die without issue that the lands shall be sold by his sonnes-in-law and he have then five sonnes-in-law and one of them die in the life time of the Donee and after the Donee die without issue in this case the other foure may sell the land and the sale made thereof is good 〈◊〉 And yet if the words of the Will be That it shall be sold by A B and C his Executors or his sonnes-in-law in this case if one of them die it cannot be sold by the rest but in the last case before where the Devise is I give my land to my Executors to be sold c. the Executors have an interest in the land and an authority about the land also and therefore in this case the discent is prevented and the Executors shall keep it â—â—â—l the sale neither will any diâ—â—eisin fine recovery or Feoffment by the heir prejudice their interest but that they may sell it when they will but they must sell in time convenient or otherwise the heir may enter and put them out by a condition in Law that is annexed to the interest or perhaps the heir may tender to them the worth of the land and if they refuse to accept it he may enter upon them and out them and it seemes in this case the meane profits untill the sale is no Assets but Assâ—â—â— the money made upon the sale shall be Assets in their hand and in this case albeit one or more of the Executors die or refuse yet the rest may sell it even by the Common-Law it selfe and so also by construction upon the same Statute for the estate surviveth But it seemes they not may sell to him that doth refuse neither may they in either case transferre their power to sell to any other nor keep the land themselves and pay so much of their own money as the land is worth If one deviseth by his Will that his land shall be sold to pay his debts and say not by whom in this case it shall be sold by his Peâ—k Sect. 5â—7 Dâ—er 〈◊〉 2â—â— Executors and if one devise all his land except one Acre which he doth appoint to pay his debts by this Devise his Executors or the survivor of them may sell it but if one say by his Will that I S shall have â—am gubernationem puerorum meorum quam the disposing letting and setting of my lands by this Devise I S hath not power given to him to sell the land If one devise that his land shall be sold after the death of his wife by his Executors with the assent of I S and make his wife and Dyer 219. a stranger his Executors and die and after I S die in this case the land cannot be sold for the authority is determined If one devise that his Executors shall sell the land and with Dyer 15â—â— 152. the money comming or made of it shall pay such and such Legacies or sums of mâ—ney in particular to such and such persons by name this is not a Legacie for which a Suit lyeth in a Court Christian but for this every one that is to have portion may have accompt against the Executors after the sale If one give lands to another to give them againe to the children of the Testator or to dispose them at the Will of the Devisees to Trin. 2. Car. B. R. some of the children of the Devisor in these cases the Devisees must dispose it accordingly and cannot give it to any other And if Coo. 6. 16. one give lands to others to the intent that with the profits thereof they shall educate children or pay such sums of money or the c. in this case the Devisees must doe accordingly or they may bee compelled thereunto And in all cases of Devises of lands to Executors to sell it is Coo. super Lit. 112. 113. wisdome to make it certaine i. e. that the Executors or the survivor of them or such or so many of them as take upon them the probate of the Will if his meaning be so shall sell it And it is better to give an Authority then an estate unlesse his meaning be that they shall take the profits of the land untill the sale and if he doe so then it is necessary that he appoint that the meane profits untill the sale shall be Assets in their hands for otherwise it shall not be so The same words that in a Deed will make a condition and Dâ—er 33. 3â— 126. Coo. super Litâ— 236. S. 〈◊〉 condition 〈◊〉 Devise upon condition and what words in a Wil shall be construed in the sense of a condition and what not the thing granted thereby to be conditionall will make a condition in a Will anâ— the thing given thereby to be conditionall And therefore these words Provided on condition So that If and the like will make a condition in a Will So that if one devise land to I S on condition or So that or If or provided that he doe bring up his eldest sonne or pay his wife 20 l. a yeare for her life or the like by these Devises the estate is made conditionall Also other words that being used in a Deed will not make a condition yet being used in a Will make a condition and the estate made by the Devise to be conditionall And therefore if a man devise his land to his Executors to be sold or devise his land to them or others to pay 20 l. to I S or paying 20 l. to I S in these cases and by these Devises the estates are made conditionall and of these conditions Dyer 33. 34â— 126 128. regularly the heire and not a stranger shall take advantage So as if one devise land to another and his heirs provided that â—e pay 10l to I S otherwise that the land shall
the Testator that the heires of I S shall have it will help for albeit a Devise of land in writing may be revoked by a verball subsequent declaration or by any act crossing or controlling that Devise yet a Devise becomming vold by that meanes cannot be made good by any such verball decâ—aratioâ— subsequent to the same Countermaund So if one give any goods or chattels to I S and he die before the Testator in this case and Se◠〈◊〉 Numb 14. by this meanes the Devise is become void and the Executor of I 〈◊〉 shall not have it And yet if a Devise be of land to A for life the remainder to B in Taile and A die before the Testator it seems Perk. Sect. 567. 568. the Devise of the remainder doth continue good notwithstanding And if one devise land or goods to the wife of 〈◊〉 S. and afterwards her husband dieâ—n and she marry with another man and then Plow 3â—â— the Devisor dieth this is a good devise notwithstanding and not avoided by either of these Accidents If one devise a Terme that he hath to A for life the remainder to such persons as shall be occupiers of White Acre at the death of A Per Iustice Iones M. 9. Iac Co. B. this Devise albeit in his beginning it be good yet if the Devisor die before A it seemes now to become void for he that will take by way of Executory devise must take as an immediate purchasor and be capable and knowne at the time of the death of the Testator If I give to I S 20l if he marry my daughter and she dye before he marry her in this case and by this meanes the Legacy is become Swinb 356. void If I give a debt owing to me to I S and afterwards I receive Perk. Sect. or release the debt hereby the devise is become void If a man make a Will and give Legacies and appoint one or more Litt. Broo. Sect. 300. his Executor or Executors and he or they after his death all refuse to take upon them the Administration yet in this case the Legacies remaine good and are not become void And in this case the course is to grant the Administration of the goods to him to whom it doth belong and to annex the Will to the Administration and then the Administrator is to performe the Will as the Executor ought to do It is held also that a Legacy of goods or chattels may become void by the injurious dealing of the Legatee against the Testator after the Legacy given whereof read Swinb part 7. Sect. 22. And when the thing devised is dead or spoiled howsoever by Swinb 357. this meaneâ— the Devise is not become void yet it looseth his effect and is as if it were void See more supra at Numb 5. In all these cases when the disposition of the Legacy is pure and 〈◊〉 Where a Legacy shall goe to the Executor when the Legateâ— dâ—th die before he dâ—th receive it And where 〈◊〉 no time is set for the performing of it or there is a set time for Swinb 350. â—55 35â— the doing of it and the Legatee die before the time and where the disposition of the Legacy is conditionall and a time set for the doing of it if the Legatee live till that time or the condition be performed in all these cases the Executor or Administrator of the Legatee shall have the Legacy and the same remedy to recover it that the Legatee himselfe had But if the Legatee die before the condition be performed contra And yet if in that case the Testators mind shall appeare to be that the Executor or Administrator of the Legatee shall have it or the condition be to be performed by another and there be no default in the Legatee or if the disposition be modall or the Legacy that was at first upon condition be afterwards repeated without condition or it be referred to a condition to be afterwards set downe and none is set downe in these cases the Legacy is not lost by the death of the Legatee but shall go to his Executor or Administrator as for Example If one devise 20l. to W S to be paid within 4 yeares after the death of the Testator and Broo. Devise 27. 45. Swinb 350. 355. Dyer 59. Swinb 358. 356. â—low 345. the Legatee die before the 4 yeares expired in this case the Executor or Administrator after the 4 yeares expired shall recover the Legacy If one give to W S 20l. when he cometh to 21 yeares of age and he die before he come to the age of 21 yeares in this case his Executor shall not have the Legacy But if the Devise be thus I give to W S 20l. and I will that it shall be paid him at his age of 21 yeares and he die before he come to the age of 21 yeares in this case his Executor shall recover the Legacy So iâ— one give to I S 20l. when he shall be married and he die before marriage in this case his Executor shall not have it But if one devise thus I give to W S 20l. towards his marriage and he dye unmarried in this case the Executor shall have and recover the Legacy So if one do give to W S 20l. when the Executor of the Testator shall dye in this case if W S die before the Executor the Executor or Administrator of W S shall not have the Legacy If one devise goods or chattels to I S and I â— die before the Testator the Executor or Administrator of I S shall not have this Legacy When any chattell reall or personall is given to an Executor by a Plow 519. 520. 543. Coo. 10. 47. 2. 37. 8. 96. Dyer 277. 367. Perk. Sect. 574. 573. 575. Will the Executor hath an election given him by the Law to have 14. Where an Executor upon a Deâ—iâ—e to him hath an Election to have the thing devised as Executor or as Legaâ—ee And when he shall have it in the one righâ— or iâ— the other and what act shall make a declaration of his Election and take it in the one right or in the other viz. as Executor or as Legatee and by his speciall entry or seising of the thing or some speciall declaration his election is to be made And if the Executor doe enter generally as most doe and never make any declaration which way or by which right he will have it as most Executors use to do he shall be said to have it and the Law shall Adjudge it in him as Executor and not as Legatee But if by any subsequent words or deeds he shall declare his mind to be otherwiâ—e he shall be in as a Legatee ab initio And yet if once he doe any such act as is proper to an Executor this is a disagreement to the Legacy ab initio and after that it seems he cannot take as Legatee but must take as
for portions in this case the daughters may not have an Accompt at the Common-law but they they may sue the executors in the Spirituall Court or in a Court of equity and if the executor be dead they may sue his executor If one devise a rent out of his land and do charge the land with Dyer 34â— a distresse the Devisee may make use of that remedy and distrain or the rent but unlesse power be given him by the Will to distrain he may not distrain for it If one be possessed of a term of years of land and devise it to his wife Plow 545. to the end that she with the profits thereof shal breed up his children in this case this is no Legacy to them and therefore it seemes they have no remedy but in Chancery or some other Court of equity against her if she refuse to do it Fitz. Devise 6. Plow 540. Perk. Sect. 57â— 483. 20. Ed. 4. 〈◊〉 Swinb 13â— And in cases of Devises of goods and chattels as Leases for years rents out of such Leases and the like the Legatee cannot take the thing devised before he have the Assent of the Executor or Administrator thereunto And therefore if in these cases the Executor or Administrator refuse to agree to performe and deliver the Legacy the Legatee may sue him in the Spirituall Court or in some Court of Equity to compell him thereunto But a Legatee may not sue for a Legacy in any of the Courts of Common-Law neither may hee sue the Executor or Administrator in the Spirituall Court for the Legacy untill the Will be proved but he may by Suit there compell him to prove the Will or to refuse the Administration And in these Courts and by thâ—se meanes the Devisee may recover his Legacy against an Executor or Administrator if he have Assets to pay the debts of the Testator for otherwise a Legacy is not recoverable at all but in case where the Executor or Administrator hath once agreed to the Legacy so as it is executed it is then so vested in the Legatee and he hath such a property therein that he may enter into or seise and take the thing devised as his own and if any man keep or take it from him he may have reliefe as in other cases If another doth claime by Deed of gift the goods a Legatee â—7 H. 6. 9. doth sue for this may bee tryed in the Ecclesiasticall Court If a debt obligation or any such like thing in action be devised Perk. Sect. 527. Swinb to another the Devisee hath no meanes to recover it but by a Suit in the Spirituall Court or in some Court of Equity to compell the Executor to sue for it himselfe or to make the Legatee a Letter of Atturney to sue for it in the Executors name for the Legatee cannot sue for it in his own name unlesse he be made Executor as to that debt c. which is the best course in these cases and yet if the Legatee have the Bond or Especialty in his hands he may deliver it up or cancell it If a man devise a term of years of land to I S and make another Plow 543. 5â—5 And of this opinion were Sâ—◠〈◊〉 â—â—tor and Sâ—r 〈◊〉 Bridge 〈◊〉 upon deliberate advise his Executor and the Executor having enough besides to pay the debts doth sell this term in this case albeit the sale be good and I S have no remedy nor meanes to recover the term yet he may sue the Executor for it and recover the worth of it in damages in a Court of Equity And now having done with the first part of a Testament viz. a Devise we come to that which doth concern the second parâ— viz. an Executor See before at Nuâ— 4. paâ—t 1. Any person that may make a Testament and devise his goods 18. what person may make oâ— appoint an Executor and what not and how and chattels may make an Executor a Fitz. Executor 28 husband as to the goods and chattels shee hath as Execuâ—rix to another and as to her own goods and things in action viz. debts due unto her upon Obligations and Especialties made to her alone befoâ—â— or afâ—er her marriage may make an Executor b Swâ—â—b â—87 Dveâ— 4. Broo. Executoâ— 155. 1 H. 〈◊〉 〈◊〉 Litt. Broo. Sect. 180. 3 H. 6. 7. Swinb 200. 19â— And he that 〈◊〉 make an Executor may make either one two three or more his Executors at his pleasure And he may if he will make one man his Executor for one yeare another man his Executor for another yeare or one man his Executor untill such a time and then another his Executor As one may make A and B his Executors and that B shall not meddle during the life of A. And a man may make one man Executor for one part of his estate and another man his Executor for the other part of his estate or one may make one man Executor as to part of his estate and die intestate as to the residue of his estate Also a man may appoint one to be his Executor if he will accept it and if he refuse that another shall be his Executor And lastly a man may make another his Executor upon condition viz. so as he give Bond to such and such men to performe his Will or the like And all these nominations and appointments of Executor are good Any person that may be a Legatee and take by the Devise of â—9 What person may bee made or appointed an Executor and what not and by what name goods and chattels may be an Executor And therefore it is said See at Num. 4. paâ—t 2. Numb 7. Swinb 222. Fitz. Executors 47. â—7 Devise 3. That any person or persons male or female of the Clergy or Laity children or strangers friends or enemies marryed or unmarryed creditor or debtor bond or free may be an Executor c Pitz. Executor 〈◊〉 88. Non-ability 18. Broo. Non-ability 38. And that a Bastard an Excommunicate or an Out-lawed person may be as able and as absosule an Executor as any other d Coo. 6. 67. And an Infant or child in utero matris may be an Executor but he cannot meddle with the Administration of the goods untill he bee of the age of 17 years and therefore the Ordinary must grant the Administration unto some other untill that time in trust and for the benefit of the Infant e Fitz. Executor 24. And a woman that hath a husband may be an Executrix Husband and wife to any other person f Fitz. Executor 24. Broo. Consultation 5. Also a woman may bee Executrix to her own husband and the husband may be Executor to his own wife and by this meanes hee may recover all the debts due to her upon Obligations Recognisances and the like made to her before or after the marriage all which the husband shall not have but by Executorship or an
cannot afterwards accept it or intermeddle with it But herein this difference must be observed That where there bee many Executors named and made and they being cited soâ—e of them only do appear and refuse to accept it â—he rest of the Executors being then living and after some or one of the rest of the Executors prove the Will or take upon him the Executorship in â—â—is case and notwithstanning this refusall they that doe refuse may afterwards at any time at least during the life time of their Co-executors that did accept it accept thereof and intermeddle therewith as far forth as either of the rest And therefore in this case howsoever the Executors refusing shall not be charged in any suite against all the Executors for any thing due from the Testator but they may by â—heir plea avoid it yet the Executors accepting cannot sue for any thing due to the Testator nor be sued for any thing due from the Testator but they must sue and be sued in the names of themselves and their Co executors that do refuse also And if there be 3 Executors and two of them prove the Will and the third refuse yet this third Executor alone may release any debt due to the Testator But if there be but one Executor made and â—e alone or if there be many made and they do all together refuse before the Ordinary to take upon him or them the administration in this case the Testator is so farre forth said to be dead intestate and thereupon therefore the Ordinary may grant the administration of the goods of the deceased and then the Executor or Executors can never after accept thereof or intermeddle therewith And if one or more of the Executors refuse and the rest accept if he or they which accept die before he or they that refused accept it seemes in this case they can never afterwards accept it but the Administration must bee granted If one be sued as Executor or Administrator and he plead to the Suit ne unques Executor i. e. he was never Executor or Administrator See the cases before if he have not in truth intermedled before this Plea is a refusall of the Executorship or administration and therefore he can never afterwards accept or intermeddle with the Executorship or Administration Every intermedling with the goods of the deceased or with the office and work of an executor shall not be said to be such an administration Coo. 9. 37. 〈◊〉 34. Dâ—er 105. â—eâ—w 63. Bâ—oo as to amount unto an acceptance of the executorship or administration and so to make a man chargable as executor or administrator And therefore if a man that is an executor or administrator do only lay up and preserve the goods of the deceased or command Administrator 35. 36. Fitz. Administrator 7. 〈◊〉 Execâ—tor 165. 〈◊〉 H. 6. 6. Dyer 13â— another to take away the goods of the deceased from one that hath them in his keeping or see the deceased buried in a decent manner and for that purpose use and if need be sell some of his goods to do it or make an â—nventâ—ry of the goods and chattels of the deceased or prove the Testators Will with his owne money or take his own goods lying amongst the goods of the deceased or take and use some of the goods of the deceased only by mistake or as a trespastâ—r or by the delivery of another or take and dispose any of the goods of the deceased when the executor or administrator doth challenge them as his owne and in his own right or if he redeeme any of the goods of the deceased with his own money when they are pledged to the full value and the day of redemption is past as neither of these acts will make a stranger an executor of his own wrong Exâ—â—tor of his own wrong so nâ—ither will they amount to an acceptance of the executorship and make the executor or administrator chargable as executor or administrator But if a man that is an executor or administrator shall sue by that name for any debt due to the deceased or being sued by that name for any debt or duty due from the deceased shall imparle to the Suite or plead any other plea besides ne unques Executor or shall take into his hands the goods of the deceased and convert them to his owne use and alte the property by sale gift or otherwise and all this as the goods of the deceased and so it shall be intended against him if he do not declare the contrary that he doth take and use them as his own c. or if he deliver the goods of the deceased to Creditors or Legataries in satisfaction of their debts or Legacies or receive any debt due to the deceased and give a release for the same or release any debt due to him before it be paid or pay any'debt due from the deceased except it be with his own money any or either of these acts will amount unto an acceptance of the Executorship and therefore after an Executor or Administrator hath done any such act he can never after refuse the Executorship or Administration If a woman sole be made an Executrix to another and she marry â—â—oo Executor 14â— a husband before she intermeddle with the estate and then her husband doth administer this is such an acceptance as will bind her and she can never afterwards refuse it The Executor or Administrator shall have by vertue of his Executorship 25. What things an Executor or Administrator shall have by vertue of his Executorship or Adminstration And what not First in respect of the nature of the thing or Administration all the chattels reall and personall of the Coo. super Litt 209. 38â— Perk. Sect. 60. â—loâ— 293. Doct. St. 39. 76. Perk. Sect. 8â—3 Coo. 4. 65. 63. 7. â—7 Keâ—â— 118. Testator as well those that are in possession as Leases for years of Land Rent Common or the like Grants of next Advowsons and Presentations Wardships of heirs by reason of tenures in Capite or Knights Service corn growing and cut trees and grasse cut and severed cattell money plate houshold stuffe and the like as also those that are in action as right and interest of executions upon Judgements Statutes Obligations Causes of action and the like He shall have also all other things that are of the nature of chattels b Coo. supeâ— Litt. â—9 Dyâ—t â—â—0 283. Dyer 24. Broo. Executor 143. And therefore the executor or administrator shall have the two years of the heir female that is in Ward a relief or an advowson that is fallen and yet if a Bishop have title to present by the vacation of a Church and then he dye in this case the King and not the executor or administrator of the Bishop shall present And if the Lord have a greater estate in the Seigniory then for life or years it is said the executor or administrator shall not have the relief
and dye these shall go to the Executor or Administrator not the successor of such a person And albeit such things be granted to them and their successors yet their executors and administrators and not their successors shall have it But if a Corporation aggregate as Dean and Chapter Mayor or Cominalty and the like have any goods or chattels in right of their Corporation and any of the Heads or Members thereof dye the Executors or Administrators of such person shall not have them but they shall continue in succession with the Corporation An Executor or Administrator shall have the benefit of a pardon Coo. 6. 80. Dyer 201. granted to the deceased and shall have advantage of any error in any outlawry against the deceased and have restitution of the goods forfeir thereupon The Executor or Administrator of a woman that hath a husband shall have by right of his Executorship or administration all Actions Husband and Wife Coo. super Litt. 351. Plow 294. 192. Rights and Titles to any chattels and possibilities and things of that nature which the wife had before the marriage and which sell to her during the marriage for these things the husband shall not have by the intermarriage after his wives death as he shall have all the rest of her goods and chattels execept he have them as executor or administrator to her as he may be And if such a woman have any goods or chattels as Executrix to another her executor or administrator not her husband shall have these also for she hath these goods in anothers and not in her own right If I have any goods or chattels in Iointenancy with another as if a lease be made of lands to me and another for years or a horse or other 〈◊〉 Sect. 281. Perk. Sect. 525. 526. Litt. Sect. 320 321. chattell personall be given or granted to me and another in these cases if I die my executor or administrator shall not have any part of these goods or chattels but the other surviving Iointenant shall have them all But otherwise it is of the goods and chattels that I and another have in Common And therefore if I and another have goods and chattels in that nature as before and he or I grant that which doth belong unto us thereof unto a stranger in this case the stranger and him of us two that hath kept his part are tenants in Common of the things and therefore if either of us die the part of him that dieth in the goods and chattels shall goe to his executor or administrator and not to the other Tenant in Common If I have a Judgement for land in a reall or mixt action and for damages recovered in the same Suit and I dye in this case my executor 〈◊〉 Executor 53. 84. â—17 or administrator not my heire shall sue execution for and recover the damages but not for the land So if I recover damages against another for the detaining of my Charters and dye my executor or administrator shall recover the damages but the heire shall have the Charters and the heire must sue his Scire facias for the Charters ere the executor can sue for the damages Also if I recover any debt or damage in any personall action my executor or administrator shall recover and have this See more infra at Numb 39. The power and interest which the Executor hath is wholly by Coo. 6. 18. 9. 38. 5. 27. Plow 280. 9. Ed. 4. 47. 36 H. 6. 7. Fitz. Administrator 2. 6. the Will And hence it is that an Executor whether he be absolute 26. What an Executor may doe by vertue of his Executorship And the power of an Executor Administrator oâ— Ordinary or conditionall whiles he is Executor may do any thing as Executor except only sue for debts and duties due to the Testator aswell before the Probate of the Will as he may do after for before the Probate he may enter into and seize the goods and chattels whatsoever they be or give power to another so to do and if any of them be taken or kept from him he may have an action of trespasse or a replevin to recover them he may give or sell any of the goods or chattels he may pay any of the debts due from and receive or release any debts due to the deceased But it is otherwise in the case of an Administration for in as much as his power and interest is given to him wholly by the Administration therefore he can do nothing untill the Administration be granted And yet in this case as to the goods taken away before the Administration the Administration shall have such a relation as to give the Administrator an action for them But otherwise after the Administration is granted the interest and power of the Administrator is equall to and with the power and interest of the Executor And yet it is otherwise of the power and interest of the Ordinary For howsoever it seemes by the ancient Common Law he might seize Coo. 8. 135. 9 39. Dyer 255. Westm 2. cap. 20. 31 Ed. 3. c. 11. preserve give grant and dispose the goods of the intestate to pious uses yet might he not sue for the goods or debts due to the intestate no more then he might be sued for any debt due from the intestate and at this day he may only keep and preserve the goods of the deceased until administration be granted and sue him in the Court of the Ordinary that doth detaine the goods from him and perhaps may sue him that shall take the goods out of his possession for he may not sell or give the goods of the deceased nor receive or release any debts for in case where there is an Executor made that is capable c. he is not to meddle at all with the estate untill the Executor refuse and where there is no Executor that the party is dead intestate the Ordinary is presently to commit the Administration to the nearest of the kinred which when he hath done his power is at a end for it is doubted of some whether he may repeale an Administration without cause or not but it hath been clearly held by all that he may not dispose of the estate afterwards and that he hath not power to enforce the Administrator to give portions to children out of the estate and that if he do goe about it either before or after the granting of the Letters of Administration the Administrator may have a Prohibition * Hill 13. Ia. Co. B. Henslowes case Trin. 3. tac Co. B. Davis case Hill 2. Car. Co. 9. Fotherlies case And accordingly divers have been granted And yet notwithstanding it seemes this course is usuall and Prohibitions not often granted at this day * Litt. Sect. 69. Plow 281. Broo. Executor 129. An Executor or Administrator may after the death of the deceased enter into the house where the deceased lived and where he
hath assets in his hands to pay all men and besides untill this be done he cannot deduct to satisfie his own debt first and barr other men by Plea But of the other side when he hath made and exhibited a true and perfect Inventary of all the goods and chattels it shall be presumed against him that he hath so much as is contained in the Inventary and no more unlesse more can be proved by Witnesses 3. The third thing whereof the Executor or Thirdly in Probate of the Will See Probate infra at Numb Administrator is to take care is to prove the will if there be any And this the Ordinary will compell him to do but otherwise he may do any thing as Executor save only sue actions as well before Probate as after 4. The fourth thing whereof the Executor or Administrator must take care is to sell and make money of the goods Fourthly in payment of Debts and Legacies and the order of payment of Debts and Legacies Coo. 9. 88. Plow 184. 545. Dyer 80. Doct. St 75. 76. 77. 78. 132. Stat. 33. H. 8. cap. 39. Coo. 5. 28. 4. 54. 59. 60. 8. 132. Dyer 232. 32 21 Ed. 4â— â—21 Bâ—oo Executors 88. 172. Coo. 8 132. Dyer 32. Plow 279. 280. Broo. Executâ—rs 103. Kelw. 74. and chattels and to receive the debts due to the deceased and then to pay the Debts and Legacies due to the Creditors and Legataries wherein the Executor or â—dministrator must be very cautious and wary And for this purpose let him observe That all the debts must be paid before any Legacies be paid or delivered and if there be not enough besides to pay the debts any thing given by way of Legacy may be sold to make money to pay the debts and the Legataries must loose their Legacies for Lâ—gatarii contendunt de lucro captando Crediteres autem de damno vitando And in payment of debts this decorum must be observed 1. Amongst persons that are Creditors the executor or administrator himselfe shall be preferred so that if any debt be due to him he may deduct to satisfie himselfe first albeit others loose their whole debt thereby and especially then when his debt is in equall degree with others debts 2. After the executor or administrator is served and satisfied his debt then the King is to be preferred so that if there be any debt due to him and he begin his Suit for it before any other man can get a Judgement for his debt against the executor or administrator his debt shall be paid before any others 3. After the King is served and satisfied his debt then the debts of common persons must be paid And these also must be paid in this order or manner 1. The debts due by Record by any judgement had against the deceased in any judiciall proceeding in any Court of Record 2. The debts due by Statutes or Recognisances ented into by the deceased for the debts due upon judgements must be satisifed before these sit judâ—cium prius velposterius 3. The debts due by Obligations and penall and single Bils for these are in equall degree and these are to bee paid after Statutes and Recognisances And yet if the Statute or Recognisance be only for performance of Covenants and no Covenant is broken an Obligation for the payment of present money shall be discharged before it 4 The debts due for rent upon Leases of Land or grants of rents but some say that debts due for rent in the Testators life time be the rent reserved upon Leases made by or without deed for years or at will are in equality of degree with debts due upon Especialties 5. The debts due for servants wages and workmen 6. The debts due upon shop-books and verball Contracts and yet it is said Addition to Iust Dodridge 92. by some That Legacies are to be paid before debts due by shop-books bills unsealed or contracts by word Quod non credo And amongst debts also that are in equality of degree those that are due are to be paid before those that are not due and those whose day of payment is already come before those whose day of payment is not yet come And yet if the Creditor whose day of payment is already come doe not sue for his debt untill his debt whose day of payment is at a day to come become due the Executor or Administrator may satisfie which of them he will first And amongst debts that are due and already to be paid those that are first sued for are to be first paid Or if the Creditors begin their Suites together the Executor or Administrator may pay which he will of them first and to pay debts in any other order is dangerous And therefore for the purpose if the deceased are two severall debts of 10l a piece to two severall Creditors by severall Obligations and the Executor or Administrator hath enough only to pay one of them he that can first get Iudgment and Execution shall first be satisfied and if the Executor or Administrator doe afterwards pay the other his debt he must satisfie the first out of his own estate If one that hath a debt due to him from the deceased upon a simple Contract or the like sue the Executor or Administrator for it and there bee debts due to others upon bonds and bills unsatisfied in this case the Executor or Administrator may not pay this debt nor may hee suffer the Plaintiffe to recover in his Action for if he doe and he have not Assets besides to satisfie the debts due upon Bills and Bonds he must satisfie so much out of his own estate as hee hath so paid or suffered to bee recovered from him for in the case of an Action brought he is to plead and to set forth these debts upon Especialties and to say that he hath no more but what is sufficient to satisfie them c. and thereby he shall barre the Plaintiffe in his Action In like manner it is if one that hath a debt due to him from the deceased upon an Obligation sue the Executor or Administrator thereupon and there be debts due to others upon Iudgements Statutes or Recognisances and the Executor or Administrator suffer the Plaintiffe to recover the debt due upon the Obligation for want of pleading the Iudgements c. or doth voluntarily pay that debt and he hath noâ— Assets besides to pay the debts due upon Iudgements c. in this case he must pay so much out of his own estate towards the satisfaction of the said debts due upon Iudgements c. as he hath paid of the debt due upon the Obligation But here it must be noted that no Iudgement or Statute that is discharged or is left and suffered to lie by agrement to barre others of their debts shall be any barre to others that sue for their due debts upon Obligations c. and Covin therefore if any Executor or Administrator shall
to pay them See more of this question in Numb 29. infra An Executor or Administrator regularly shall charge others for 28. Where and how an Executor or Administrator shall charge others in respect of the estate of the deceased and what actions remedy he may have against others and what not and how any debt or duty due to the deceased as the deceased himself might have done and the same actions the deceased might have had the same actions for the most part the Executor or administrator may have also And therefore he may have an a West 2. c. 22. action of account b F N B. 117. an action of Trespasse de bonis asportatis in vita testatoris c Dyer 322. an action of debt against a Gaoler upon the escape of a prisoner d Coo. 11. 41. a Writ of error upon the Statute of 27 Eliz. e Coo. 6. 80. an attaint upon the Statute of 23 H. 8. a Writ of restitution upon the Statute of 21 H. 8. f Coo. 9. 86. an action upon the case upon the assumpsit of the Testator g Stat 9. 11. 6. c. 4. an Indempnitate nominis when the deceaseds goods are taken upon an Out-lawry against another man of his name h Broo. Excutor 161. an action of Covenant for breach of a Covenant made to the deceased i Coo. 5. 27. an action upon the Case upon the Trover and Conversion of the goods of the Testator k 7 H. 4. 6. an Ejectione firme for an ejectment of the Testator out of a Terme l Coo. 4. 50. an action of debt for the rent behind in the life time of the deceased m Broo. Executor 169. an action of debt for the arrearages of an annuity due to the Testator in his life time n Broo. Executor 122. and a Ravishment or Ejectment of guard for a wrong due to the â—eceased o Coo. 9. 8â— But an Executor or administrator shall not charge another or have any action against him for a personall wrong done to the Testator when the wrong done to his person or that which is his is of that nature as for which dammages only are to bee recovered And therefore an Executor or Administrator cannot sue another for the beating or wounding of the deceased or for a Trespasse done to him in his cattle grasse or corn or for a waste done by his Tenant in his lands for these are said to be personall actions which die with the person according to the rule Actio personalis moritur cum persona If the Testament be kept from the Executor he may have remedy 36 H. 6. 7. Coo. 8. 135. to recover it in the Spirituall Court So if the goods of the deceased be kept from him he may sue there for them if he will or he may sue in any Court of Common-Law And if there bee a Will and an Executor made or two Administrations granted together hee that is rightfull Executor or administrator may sue the wrongfull administrator for the goods in his custody If one grant a rent out of his land for life provided that it Coo. super Litt. 146. shall not charge his person and the rent is behind and the Grantee dyeth in this case the executor or administrator of the Grantee may have an action of debt for these Arrearages If any rent or arrerages of rent be due to me upon a grant of rent Coo. 4. 50. Stat. 32. H. 〈◊〉 cap. 37. out of any land to me or reservation of rent upon any estate made by me of land in these cases my executor or administrator may have an action of debt for this rent or hee may distraine for it so long as the land chargeable with the rent and out of which it doth issue is in his possession that ought to pay it or in the possession of any one that doth claime by or under him If any of my houshold servants doe convey away and eloine or See Stat. 〈◊〉 H. 6. c. 〈◊〉 destroy any of my goods any executor or administrator may have a speciall Commission out of the Chancery to enquire of and to punish it And in case where a man doth sue as executor or administrator Coo. 5. 33. Broo. Treâ— passe 346. Fitz. Executor 1â— he must in his action name himselfe as he is i. e. if he bee an Executor he must name himselfe so and if an administrator he most name himselfe so And if there bee many Executors and some accept and some refuse if they bring any action they must be all named in the Writ And yet if one executor have goods in his possession and hee alone sell them perhaps for this contract he may bring an action for the money in his own name so also if the goods be taken out of his possession alone it is said he alone may sue for them but the safest way in these cases is to sue in the names of all the Executors for the possession of one of them is said to be the possession of all of them An executor or administrator regularly shall be charged by Coo. supeâ— Litt 209. 5. 17. Dyer 14. 23. 212. Doct. St. Broo. Discent 53. 29. Where and how an Executor or Administrator shall be charged by others and what Actions and remedy may be had against him or 〈◊〉 others for any debt or duty due from the deceased as the deceased himselfe might have beene charged in his life time so farre forth as he hath any of the estate of the deceased to discharge the same And therefore if a man bind himselfe by Obligation or Covenant to pay money or doe any such like thing and doe not bind his executors or administrators by name in this case the executor or administrator may be sued and may be charged as farre forth as if they were named And yet where the Covenant is but personall as where one doth make a Lease for yeares and the Leassor doth Covenant to pay the quit rents but he doth not say during the terme by this it seemes the executor or administrator of the Leassor shall not be charged o Coo. 9. â—6 Plow 18â— An action of the case lyeth against him upon an assumpsit or the simple contract of the Testator especiall where the ground of the Assumpsit is a true debt p F N B. 121 a rationabili parte bonorum lyeth against him q 3 H. 6. 35. 11 H. 4. 45. a Detinue lyeth against him for the goods delivered to the deceased if the executor or administrator doe still continue the possession of them Also an action of debt lyeth against him for Arreatages of account found upon the deceased before Auditors The executor or administrator of the father that hath levied Stat. 25. Ed. 1. c. 11. Aid of his Tenant for the marriage of his daughter shall bee charged with it and the daughter may sue for it The
purchase for these rights and duties were given by the Law from him that was owner of the land and none other which at this time was the Feoffee of trust and so the Feoffor the old owner of the land should take the profits and leave the power to dispose of the land at his discretion to the Feoffee and yet the Feoffee was not such a Tenant of the land as his wife might have Dower or the land bee extended for his debt or that he might forfeit it for Felony or Treason or that his heire should be in Ward for it or any duty of Tenure fall to the Lord by his death or that he could make any estates of it also lands were many times conveyed by last Wills by words only and sometimes by tokens only in time of great extremity of weaknesse and many perjuries for tryall of secret uses were daily committed All which having been espied have been laboured to be cured and holpen by divers particular Acts of Parliament in all succeeding ages Stat. 1. R. 2. c. 9. 4. H. 4. c 7. 11 H. 6. c. 3. 1. R. 3. c. 1. 4. H. 7. c. 17. 1 H. 7. c. 1. 19 H. 7. c. 15. 27 H. 8 c. 10. Vses and possessions united but the makers of these Lawes finding the continuances of these uses so mischievous that they did over-reach the policy of all Lawes for a generall remedy and a perfect cure of all the said mischiefes and abuses have at last provided That where any are or shall be seised of any lands to the use or trust of any other by reason of any bargain sale feoffment fine recovery contract agreement or otherwise by any meanes whatsoever cesty que use or trust that hath any such use in Fee-simple for terme of life or yeares or otherwise or any use in reversion or remainder c. shall have the possession of the land in such quallity manner and condition as hee had the use or trust And where any one is seised of lands to the use or intent that another shall have a yearly rent out of the same lands cestry que use of the rent shall bee deemed in possession thereof of like estate as he had the use By which Statute the use and possession of land is now at this day coupled conjoyned and marryed with an indissoluble knot so as they cannot now stand apart and devided but he that hath the one must have the other and the one doth ensue the other as the shaddow doth the body and therefore now upon Fines Recoveries and Feoffments the estate doth settle as the use and intent of the parties is declared by word or writing before the act done as for example If a writing bee made between two or more that one of them shall levie a fine make a Feoffment or suffer a Recovery to the other to the use and intent that one of them or another man shall have it for life and after another in Taile and after a third in Fee-simple in this case the Law setleth the estate aâ—cording to the use and intent declared so that now what estate a man hath in the use the same he hath in the possession But herein for the more full understanding of this Statute and the Law at this day it must bee To what uses the Statute of 27 H. 8. doth extend and to what not observed That this Statute doth not extend to all manner of uses neither are all uses executed and united to the possession hereby for to every execution of a use within this Statute foure things are requisite 1. That there be a person seised 2. That there be a cesty que use in esse 3. That there be a use in esse in possession reversion or remainder 4. That the estate out of which the uses doe arise be vested in cesty que use so that when these foure viz. Seisin in the Coo. 1. 126. 136. Plow 3â—â— Feoffees cestuy que use in rerum natura use in esse and that the estate of the Feoffees doth vest in cestuy que use then there is an execution of the use within this Statute but if any of these faile there is no execution of the use within this Statute And therefore it is agreed that this Statute doth not execute any use but only uses in esse so that the right of a present and a future or contingent use are excluded untill they come in esse and then the Statute doth execute them also if no alteration be of the estate of the land before And if cestuy que use in Taile with divers uses in remainder had made a Feoffment and dyed before the Statute no execution Coo. 1. 126. Dyer 58. 88. 33â— should have been of this right of a use untill entry by the Feoffees So if cestuy que use in possession had made a Feoffment before the Statute no right of the use in possession or remainder shall be executed by the Statute untill the regresse by the Feoffees So if a Feoffment had been made before the Statute to the use of the Feoffee for life and after to the uses of others in remainder and the Feoffee had made a Feoffment in Fee to another this use shall not be recontinued or the repossession of the land executed unto it by this Statute so that the right of uses in esse and uses in contingency untill they happen to be in esse remaine at the Common-Law as they were before the Statute and therefore if the estate of the Feoffees be in such cases devested by disseisin or the King or a Corporation or an Alien or a person attaint c. be enfeoffed of the land before the use come in â—sse or if the land be aliened bonà fide upon consideration to one that hath not notice of the use this use can never be executed untill these possessions be removed by lawfull entrie or action of the Feoffees and if their entrie and action be barred the use is gone for ever and the party grieved thereby hath no remedy but in Chancery And therefore if cesty que use in Taile the remainder in Taile restrained with a clause of perpetuity be disseised no use in contingency can bee executed by this Statute And if before the Statute a feoffment had been made in Fee to the use of I S for life and after to the use of the right heires of I N and the Feoffees had been disseised and then the Statute had been made and after I N die and after his death I S die this use shall never be executed in the right heire of I N. And so also if a disseisin be after Coo. 1. 138. the Statute and before the death of I N no possession shall bee executed in the right heir of I N Also uses that need no Execution by the Statute as when a man doth convey land to I S and his heires to the use of I S and his heires this doth not
Seventhly in respect of the manner and â—rame of the words used in the raising of uses and what manner of uses may be made or not making and raising of uses wherein there is much regard to the minde and intention of parties For if one covenant in consideration Coo. 3. 91. of 20 l. paid him by I S to stand seised of land to the use of I S and his heires or if one covenant that I S and his heires shall have his land if this Deed be inrolled this is a good bargain and sale to raise the use and will doe it as well as when it is made by the words bargaine and sell So if one for good consideration by words Coo. 2. in Sir Rowland Hay wards case Wards versus Lambert Co. B. Pasche 37 Eliz. of Demise and Grant make a Lease of his land for a term of years hereby the use will rise to the Leassee as well as if the Lease were made by the words bargaine and sell Et sio de similibus And yet if one by words of bargaine and sell convey his land to his son Inrolment no use will arise by this except there be money paid and the Deed be inrolled And if one in consideration of money grant his land to his sonne or any other by the word enfeoffe no use will rise by this unlesse Livery of Seisin be made thereupon because the intent of the parties in these cases doth appeare to be to passe it in another manner And if in the last case Livery of Seisin bee made Resolved in Stiles case 3â— Eliz. then the use shall be guyded by Law that is if nothing be given it shall be to the use of the Feoffor and not amount to a limitation of use to the sonne * 21 H. â— 18. Plow 308 301. Broo. Feost mental use 16. If one covenant with his sonne that his land shall remaine or that his land shall discend to him this is a good covenant to raise the use according to the limitation And yet if one covenant with his sonne upon his marriage that his land shall remaine revert or discend to his sonne in Fee or in Fee-Taile by this no use will be raised because it is so incertaine but perhaps this may amount to a covenant whereupon the sonne may have an Action of Covenant If I covenant for me and my heires that Covenant I and my heires and all others that are seised shall bee thereof seised to the use of c. this is a good covenant to raise the use albeit it be in words of the future tense If I covenant with my Dyer 374. eldest sonne and strangers to convey my land to the same strangers to the use of my selfe for life and after of my sonne in Taile c. and I grant by the Deed that the said persons seised of the said land shall be from thence seised to the said uses and none other use and no other conveyance is made it seemes this is sufficient to raise the use And yet if I be seised of land in Fee and Covenant with I S that A B and C D and their heires shall stand and be seised of this land to the use of c. it seemes this is not a good covenant to raise the uses If a Feoffment or other conveyance Coo. 1. 120. be made to the use of the Feoffor and the heires of his body on the body of M the wife of S T and for default of such issue to the use of him and the heirs of his body of S the now wife of W K and for default of such issue then to the use and performance of his last Will for 10 yeares immediatly after his death and after the term ended to the use of the Feoffees and their heirs during the life of W eldest sonne of the Feoffor and after his death to the use of the first issue male of the body of the Feoffor lawfully begotten and the heires of the body of such first issue male and for default of such first issue male to the second issue male c. in the same manner these are good limitations of uses So if a use be limited to I S for life without impeachment of waste and after to the use of Coo. 1. 90. B and C their Executors and Administrators for the term of twenty years and after to the use of C and the heires males of his body c. these are good uses So if a use be limited after this manner Coo. 6. 18. Lit. Sect. 462. 403. viz. to the use of a mans last Will and Testament or to the use of such person and persons and of such estate and estates as he shall limit and appoint by his last Will and Testament or to the use of such person and persons or to such uses and purposes as he shall by any writing under his hand and seale declare and appoint these are good limitations If I covenant with another in consideration of Coo. 1. 176. blood c. that I will stand seised of my land to the use of such of my sonnes or such of my cousins as the Covenantee shall name in this case after a nomination made the use will rise well enough But if I for and in consideration of 10l or the like good consideration Incertainâ—y covenant to stand seised of land to the use of such persons as the Covenantee shall name in this case albeit the Covenantee doe nominate some of my cousins or blood yet no use will rise by this for the incertainty of it If a Feoffment or other conveyance be to the use of I S and his heires provided that if the Foeffer pay 10l at such a day that then it shall be to the use of the Feoffer and his heirs this is a good limitation and the use will rise accordingly A use may be limitted to a woman durante viduitate sua and this Coo. 4. 3. is good If a man bee seised of two Manners and covenant to stand Coo. 11. 23. seised of the same to the uses following viz. of the one to the use of the Covenantor for his life and after to the use of his wife for life and after to the use of his eldest sonne in Taile c. And for the other Mannor to the use of his second son in Taile c. these are good limitations and the uses will rise accordingly If a man seised of land in Fee agree with another that a Fine Coo. 2. 69. 70. shall be levied of it and that the same shall be to the uses following viz. that I S the Conusor shall have one yearly â—ent of 50 l. during his life to be issuing out of the same land and as touching the land charged with the rent c. to the use of I D the Conusee untill default of payment of the said yearly rent and then to the use of I
20â— in such a place in this case tender of this 20s in that place at any time is not good unlesse he happen to meet with A B at the place for then tender at any time is good but otherwise the Covenantor must give notice to A B what time he will tender the 20s in that place otherwise the revocation is not good If one be to marry his daughter to the sonne of another man and they do mutually covenant to stand Trin. 18. Ia. B. R. Savill sterlings case seised of their lands to the use of their sonne and daughter with Proviso to revoke the uses with the conâ—ent of the mothers if they or either of them be then living and one of them dye in this case a revocation by the consent of the surviving mother is sufficient 3. When the covenantor doth make void such uses by vertue of such a revocation he is seised again of the land in Fee-simple Coo. i. 111. 112. 113. super Litt. 237. as he was at first without any entry or claim 4. This power of revocation whether it be present as those before and most are or future as when they are upon contingent as if the Covenantor over-live I S or the like when it is reserved to the party himself that made the uses may by his â—ine or Feoffment be utterly extinguished As if he make a Feoffment or levy a Fine of the land whereunto the uses and proviso are annexed by this the Proviso is extinct And yet so as if he make a Feoffment or levy a Fine of part of the land only this shall extinguish his power but to that part only But if the power be reserved to a stranger it seems the Fine or Feoffment of him that made it will not extinguish it This power also when it is present may be extinguished by a Release made by him that hath the Release power to any one that hath any estate of Franktenement in the Deâ—eaâ—ance land in possession reversion or remainder or it may be avoided by Defeasance whether it be present oâ— future If one convey his lands to certain friends in trust to the intent 10. Other Trusts and Confidences or lands and of chattels â—â—all and personall The naâ—ture of such Trusts the duty of them that are trusted and the remedy to beâ— had against them for breach of their truâ—â— that they shall convey it to such persons as he shall set down in Cromp. Iur. 48. 59. 58. 54. Dyer 160. Fitz. Accompt 122 his last Will and Testament or if a man deliver money to a friend in trust to purchase land for him and his heirs to the end that he may have the profits thereof for his life and to the end it may be conveyed to them afterwards or if a man deliver money to his friend to buy land for him that doth deliver the money in his own name or if a man enfeoffe his friend and his heirs of land to the intent that he shall alien the land to whom I S shall appoint or if land be conveyed to me in Mortgage and I pay all the money but I to prevent the joynture of my wife or for some such like cause name a friend joynt purchasor with me and so the conveyance is made to us both if in any of these cases or in any other such like case the friend trusted prove false and do not perform the trust but turn the profits of the land to their own use or refuse to settle it according to the trust or the like the party grieved must have his remedy in Chancery for these are not Trusts or Uses within the Statute nor such for which there is any remedy at the Common-Law And in that case where the land is setled to the intent that the friends trusted shall settle it where I S shall appoint if I S do not appoint how it shall be setled it seems the Feoffees shall have it to their own use And if a man give or grant his goods or chattels as Leases for yeares or the like to friends in trust to the use of himself for life Cromp. Iur. 65. Dyer 369. Broo. Feofment al use 60. Câ—omp â—â—ur 62. 45 11 Ed 4. 2. 7 Edâ—â— 29. and after to perform his Will or the like these are such uses and trusts as are not within the Statute of uses and for the breach of which there is no remedy at the Common-Law but in Chancery only So if an Obligation or Statute be made to A B to the use of C D this is a trust of the same nature and if A B release the Obligation without the consent of C D or get the money into his own hands C D shall have reliefe in Chancery And in all these cases and such like cases the generall rules by which uses were governed at the Common-Law are still in force and to take place as those by which uses and trusts are now for the most part governed As 1. If there be any cause to sue for or about the lands or goods wherewith the parties are trusted as if they deny 7 Ed. 4. 29. or delay to perform the trust they must be compelled thereunto by suite in Chancery 2. The Cestui que use or party for Cromp. Iur. 62. 63. 65. 11 Ed. 4. 24. Ed. 4. 37. whom the trust is cannot of himselfe dispose of the lands or goods for the property and interest in Law is in the Trustees and if it be an Obligation or Statute that is made to the use of another Cestuy que use cannot release it but the Trustee must release it 3. If the parry trusted so with lands goods or chattels give grant or sell the same lands goods or chattels to one that hath knowledge of the same uses or trusts as it is alwayes preâ—umed he hath where the trusts are expressed upon the same Deed by which the lands goods or chattels are given or granted or if the things so given or granted be granted upon the same trusts or to the same uses or without any consideration at all in these cases he to whom the thing whereabout the trust is shall have the same thing upon the same trust and to the same use as he that did give or grant the same had it But in case where no trust or use is expressed upon the Deed the purchasor or buyer hath no notice or knowledge of the use or trust and hee gives a valuable consideration for the thing there for the most part the sale is good and the party grieved thereby hath no remedy but against the party first trusted in Chancery and the purchasor shall have and enjoy the thing so bought to his owne use for ever but he that is the party trusted will bee forced in Chancery to make the party grieved an amends in damages for this breach of trust And if there be any practise packing or combination betweene the buyer and the seller
have it or if this be neglected then he must take care to grant over his estate by act executed for by his last will he may not devise it to some friend and his heires in trust for him or he may grant it over to another and take a regrant of it to himselfe and his heires or he may make a lease for years of the lands to some friends in trust and by this meanes he may have the fruit of it during the terme When no time is set downe for the beginning of an estate then Co. super Lit. 46. Co. 5. 1. 2. 5. Die◠286. 307. it shall begin presently otherwise it shall begin at the time expressed For years When such a lease shall begin and how long it shall continue if it may stand with law If a lease for years be made bearing date the 26th day of May To have and to hold for 21. years from the date or from the day of the date in these cases the lease shall begin on the 27th day of May. But if the words be To have and to hold from henceforth or from the making hereof in these cases the lease shall begin on the day in which it is delivered And if it be to begin à die confectionis then it shall begin the next day after the delivery And if it be To have and to hold for 21. years without mentioning when it shall begin it shall begin from the delivery if there be no former lease in being and if there be then it shall begin from the time of the ending of that lease If the deed have a date which is void or impossible as the 30 of February or 40. of March and the terme be limited to begin from the date then it shall begin from the delivery So if a man by his deed recite a lease which is not or which is void or misrecite a lease that is in esse in point materiall and then say To have and to hold from the end of the former lease this lease shall begin in course of time at the time of the delivery of the deed If one make a lease of land to A for 20. years and then grant Co. 1. 154. Plow 198. it to B To have and to hold to him from the end of the first terme c. in this case this second lease shall begin assoone as the first lease by what meanes soever shall end But if the words of the second lease be To have and to hold to him from the end of the 20. years in this case the second lease shall not begin untill the 20. years be expired And if one make a lease of white acre to A for 10. years and of blacke acre to B for 20. years and then reciting both the leases doth make a lease to C to begin after the former leases this shall be taken respective and shall begin for white acre after the end of the 10. years and for black acre after the end of 20. years And if one make a lease to two for 60. years provided that Co. 6. 36. if the lessees shall die within the term that then presently after the decease of the last of them longest living the lessor shall reenter and one of them die and after the lessor doth make a lease to another Habendum c. cum post sive per mortem sursum redd vel forisfacturam of the first surviving lessees acciderit vacare for 40. years in this case this second lease shall begin after the death of the lessee surviving reentry of the lessor or the effluxion of time of the first lease which of them shall first happen and the lessee cannot at his election make it to begin at any other time If a man make a lease for 30. years and 4. years after make another lease to another man in these words Noveritis c. me A de Dier 261. B predictis 30. Annis finitis dedisse concessisse B de C c. Habendum à die confectionis presentium termino predicto finito usque finem 31. Annorum by this the second terme shall begin at the end of the 30. years And if one make a lease to A for 20. years and after make a lease to B to have and to hold to him from the Craddocks case pasc 7. Jac. Co. B. end of the first terme for 20. years to be accompted from the date of the last deed in this case the second lease shall begin at the end of the first lease these words to be accompted c. shal be rejected If one make a lease of land to A for 10. years and after by Dier 112. indenture grant it to B to have and to hold to him from Michaelmas next for 10. years and after the first lessee doth purchase the reversion by which his terme is drowned in this case the second lease shall begin presently when Michaelmas is come If two Jointenants be and one of them grant the land to I S to Mich. 13 Jac. B. R. have and to hold to him for 20. years if the lessor and his companion so long live by this the lease shall continue no longer then they both live together and when either of them is dead the lease is determined * Co. 5. 9. And if one grant his land to I S to have and to hold to him his executors c. for the terme of 100. years if A B and C live so long and leave out these words or either of them in this case if either of them die the lease is determined But if the words be To have and to hold for 100. years if A B or C omitting or either of them shall live so long contra †Pasch 30. Eliz. Co. B. If a lease be made of land to the husband and wife to have and to hold to them for 21. years if the husband and wife or any child between them shall so long live this is a good lease and shall continue for all their lives and for the life of the longest liver of them albeit the first words be in the copulative If one possessed of land for a terme of years grant the same to another Dier 307. 69. Plow 520. 524 525. 423 424. Co. 7. 23. To have and to hold to him his executors and administrators or to him and his assignes or to him without any more words or if a man that is possessed of a terme grant his lease to another and doth not say for what time it seemes in these cases the whole terme is granted albeit no livery of seisin be made And in the first case if livery of seisin be made then it seemes there doth passe an estate for the life of the grantee and therefore that this is a forfeiture of the estate of the lessee for years whereof he in the reversion may take advantage presently And if a lessee for years of land grant a
if the rent be behind to reâ—nter and retain the land during the life of B and no more and A doth enter in the life time of B for non payment this doth not destroy the remainder And if tenant for life and he in remainder join in a feoffment on condition that if c that then the tenant for life shall reenter this is good without defeating the entire estate for regularly a condition cannot avoid a part of an estate onely and leave another part entire neither can the estate be void as to one person and good as to another except it be in case of a condition annexed to an estate limited by way of use as in Frances case Co. 8. 90. And yet if A make a gift in tail to B the remainder to B in fee upon condition not to alien and B doth alien this doth defeat the estate taile onely and not the remainder Also the whole estate of the whole Co. 4. 121. Dier 127. and not of some part only shall be avoided except by agreement the condition be specially restrained to some part and the reentry given in that part only as where a feoffment is made of two acres on condition that if such a thing happen the feoffor shall enter into one of them And further when he that hath right doth â—eenter Perk. Sect. 840. by force of such condition hee shall avoid all charges and incumbrances put upon the land after the condition made for hee that doth enter into land by force of such a condition must have it again in the same plight as it was when he parted with it And See infra finally a condition for the most part will not determine the estate without entrie or claim So that howsoever a limitation hath much affinity and agreement with a condition a Litt. Sect. 3â—0 and therefore it is sometimes called a condition in law b Co. 9. 128. 8. 17. 6. 41. Plow 413. both of them doe determine an estate in being before and a limitation cannot make an estate to be void as to one person and good as to another as if a gift bee made in taile to one and his heires males untill he doe such a thing Co. 10. 40. Dier 300. Litt. Sect. 90 and then his estate to cease and goe to another yet herein they differ 1. A stranger may take advantage of an estate determined by limitation and so he cannot upon a condition 2. A limitation doth always determine the estate without entrie or claime and so doth not a condition Conditions anneâ—ed to estates are sometimes so placed and confounded Co. 2. Lord Cromwels case 10 Mary Portingtons case Co. super Litt. 204. â—7 H. 8. 16. Litt. Sect. 328 329 â—30 331. amongst covenants sometimes so ambiguously drawn and 5. When an estate shall be conditionall And what words will make a condition And what not And how a condition may bee knowne from a covenant or limitation at all times have in their drawing so much affinity with limitations that it is hard to discern and distinguish them Know therefore that for the most part conditions have conditionall words in their frontispice and doe begin therewith and that amongst these words there are three words that are most proper which in and of their own nature and eâ—â—icacy without any addition of other words of reentry in the conclusion of the condition that doe make the estate conditionall as Proviso Ita quod and Sub conditione And therefore if A grant lands to B To have and to hold to him and his Proviso Ita quoâ— Sub conditione heires Provided that or so as or under this condition that B doe pay to A ten pound at Easter next this is a good condition and the estate is conditionall without any more words But there are Si. Si contingat other words as Si si contingat and the like that will make an estate conditionall alâ—o but then they must have other words joined with them and added to them in the close of the condition as that then the grantor shall reenter or that then the estate shall be void or the like And therefore if A grant lands to B To have and to hold to him and his heirs and if or but if it happen the said B doe not pay to A ten pound at Easter without more words this is no good condition but if these or such like words be added that then it shall be lawfull for A to reenter then it will be a good condition But here note that these words Proviso Ita quod and sub conditione Co. super Litt. 146. Co. 2. 70. Dier 152. 311. Litt. Bro. 256. Dier 6. 222. Plow 136. 5 H. 7. 7. Perk. Sect. 732. albeit they bee the most proper words to make conditions yet doe they not always make the estate by the deed to bee conditionall but sometimes doe serve for other purposes for the word Proviso hath divers operations besides for sometimes it doth serve for and work a qualification or limitation and sometimes it doth serve to make and work a covenant onely And then only being inserted amongst the covenants of the deed it doth make the estate conditionall when there are these things in the case 1. When the clause wherein it is hath no dependence upon any other sentence in the deed nor doth participate with it but stands originally by and of it selfe 2. When it is compulsory to the feoffee donee c. 3. When it comes on the part and by the words of the feoffor donor lessor c. 4. When it is applied to the estate and not to some other matter as if one grant a Manor with an Advowson appendant and after the Habendum and reservation of rent amongst the covenants there is this clause inserted Provided that the grantee shall regrant the Advowson for the life of the grantor this is a good condition And thus it may be also a condition and a covenant as if the words run thus Provided always and the feoffee c. doth covenant c. that neither he nor his heires shall doe such an act this is both a condition and a covenant But if the clause have dependence on another clause of the deed or bee the words of the feoffee c. to compell the feoffor to doe something then is it not a condition but a covenant onely as if there be in the deed a covenant that the lessee shall skowre the ditches and Covenant then these words follow Provided that the lessor shall cary away the earth Or there is a covenant that the lessee shall repaire the houses and then these words follow Provided that the lessor doe provide timber So if this clause bee applied to some other thing and not to the thing granted then is it no condition as if a lease of land be made rendring rent at B provided that if such a thing happen it shall be paid at
on condition and the lessee doth Co. 8. 92. not know of it and after the lessor doth by will give the land to the lessee without condition and the lessee doth such an act as is a breach of the condition in this case the condition is not broken for the lessee must have notice of the condition ere he can breake him If a lease be made rendering rent on condition that if the rent Doct. Stud. 35. 13 H. 4. 17. To pay rent be not paid within twenty daies the lessor shall reenter and the rent is not paid in this case the condition is broken but the lessor cannot enter untill he hath made a legall demand and if he die before he doe it his heire shall never take advantage of that breach but it is discharged for ever When an act is to be done in time convenient or otherwise and the party doe it not by the time appointed by law the condition is Li. Sect. 353. Plow 30. broken If one grant an annuity pro consilio impenso impendendo and the To give advise grantor require advise and the grantee refuse or neglect to give it 21 E. 3. 7. 8 H. 6. 24. Dier 369. this is a breach of the condition and a forfeiture of the estate And if the deed be that he shall goe to such a place to give counsell and he require him to goe thither and he refuse it this is a forfeiture of the estate But if he refuse to goe with him to another place or give counsell to his adversary being not required to give counsel to him this is no breach of the condition nor forfeiture of his annuity And if one had heretofore devised his land to be sold by his executors Lit. Sect. 383. to have been distributed for his soule the executors had not sold it in time convenient or had taken the profits to their own use this had been a breach of the condition See more in the last foregoing division and in Obligation Numb 10. Covenant Numb 7. The same law is for the most part of conditions of obligations See Obligation Numb 10. Every particular estate hath a condition in law annexed to it and Co. 2. 15. 8. 44. super Lit. 233. 11. When a condition in law shall be said to be broken Or not therefore if tenant for life in dower by the courtesie or after possibility of issue extinct lessee for years tenant by statute merchant elegit or the like make any absolute or conditional estate of the lands they hold in fee simple fee tail or for life give livery of seisin thereupon Forfeiture or levy a fine Sur conusance de droit or suffer a recovery of the land or the like this is a breach of the condition in law and a forfeiture of their estate Also if any such tenant except tenant in taile after possibility of issue extinct doe wast in the lands they doe so hold this is a breach of the condition in law and a forfeiture of their estate in so much as the wast is committed But if an Infant Infant Womencovert or feme covert that hath such an estate shall make any such estate c. this is no breach of the condition in law And yet if such a person doe wast this is a breach of the condition in law And so also if any such person be an officer and doe any thing which is a cause of forfeiture in another this will be a forfeiture in him or her also If any keeper of a Parke without warrant kill any Deere fell Co. super Lit. 223. or cut any wood and convert it to his owne use pull downe the lodge or any house within the Parke used for hay for the Deere or the like this is a breach of the condition in law So also if a keeper shall not looke to the game but the Deere be killed by his default and damage come to the Lord by this also the condition is broken But the not attending upon such an office for two or three dayes if the Lord have no speciall losse thereby is no cause of forfeiture Offices that are for the Administration of Justice or of clark ship in any Court of Record or concerning the Kings treasure revenue Co. super Lit. 234. account alnage auditorship c. have also conditions in law annexed to them and therefore if such officers shall sell their offices or misdemeane themselves in their offices by this the condition in law may be broken and they may forfeit them As no man may create or annex a condition to an estate but he 12. Who may enter for a condition broken And what persons shall take advantage of a condition or a limitation And what not Lit. Sect. 347. Plow 175. Co. 3. 62. 347. 5. 56. Dier 131. Co. super Lit. 214 215. Doct. Stud. 93. Perk. Sect. 830 831. 833 835. Plow 488 489. that doth create the estate it selfe so neither can a man give or reserve the power title or benefit of reentry and avoidance of an estate upon the breach of a condition to any other but to him or them or at least to one of them that doth make the estate his or their heirs executors and administrators c. for it is a rule of the common law That none may take advantage of a condition but parties and privies in right and representation as heires executors c. of naturall persons and the successors of politique persons and that neither Privies nor Assignees in law as Lords by Escheate nor in deed as grantees of reversions nor Privies in estate as he to whom a remainder is limited shall take benefit of entry or reentry by force of a condition And therefore if a man had made a lease for life reserving rent on condition that if the rent be behind the lessor his heires and assignes shall reenter and after had granted the reversion to a stranger this grantee should not by the common law have had benefit by this condition But if the lessor had died his heire or the Gardian in Chivalry or Socage of such an heire if he had been an Infant and inward might have taken advantage by the condition And if one had been possessed of a lease for years and had granted his terme upon condition and had died his executors or administrators might have had advantage of this condition And at this day the law is still the same as touching Privies in Co. super Lit. 202. 12. blood for an heire shall take advantage of a condition though no estate descend to him from the Ancestor And therefore if one be seised of land of the part of his mother and he make a feoffement in fee of it on condition and die and the condition is broken in this case the heire of the part of the father shall enter but as soone as he hath entred the heire of the