owne Child Attainders which give Escheat Attainder by Verdict Confession Outlawry Abjuration but upon either of them judgment must be given Forfeiture of Goods and Chattels Going beyond the Sea without license Exigent awarded in Felony though he yeild his body thereupon Clergy in Felony standing mute in Felony Felo de se Flying for Felony though he returne and be tryed and found not guilty These bring a forfeiture of all a mans Goods and Chattels as well reall as personall Attainder to what time it shal relate for the forfeiture of Lands and Goods Forfeiture He that is attainted of Felony by Verdict Confession or Outlawry doth forfeit all the Lands he had at the time of the offence committed so that he can do no Act afterward to encumber the Land If Tenant in taile be attainted of high Treason he shall forfeit for no longer time then for his owne life If a man have an Estate for life of himselfe or of another do commit Treason or Felony the whole Estate is forfeited to the King but no escheat to the Lord. But a Copyhold of Fees as for life is forfeited to the Lord and not to the Crowne and if it be entailed Forfeiture by a Copy-holder the Lord is to have it during the life of the Offender and then his Heire is to have it A man attainted may purchase Pardon Corruption of blood but it shall be to the Kings use untill the party be pardoned yet the pardon giveth not back their Lands or Goods without a speciall Patent of Restitution which cannot restore the blood without an Act of Parliament So if a man hath a Son and then is attainted of Felony and pardoned and then purchaseth Land and then hath issue another Son and dieth the Son he had before the pardon though he be his eldest Son and the Patent have words of restitution to his Lands yet he shall not inherit them but the second Son shall inherit them because the blood is corrupted by the Attainder and cannot be restored by Patent alone but by Act of Parliament And if a man hath two Sonnes Where a man shall be said to dye without Heire although he have one and the eldest is attainted in the life of his Father and dieth without issue living the Father the second Son shall inherite the Fathers Lands but if the eldest Son have any Issue though he dye in the life of his Father then neither the second Son nor the Issue of the eldest shall inherit the Fathers Land but the Father shall be there accounted to dye without Heire and the Land shall escheat whether the eldest Son hath issue or not though he be pardoned after the death of his Father Note that the Heires procreate after the Attainder shall not inherite the Lands of his Father nor of his Mother But the Heires begotten before the Attainder shall inherit the Lands of that Father and of that Mother which was not attainted but the Lands of his Father attainted or of his Mother which is attainted he shall not inherit although the King hath pardoned the Attainder The operation and effect of a pardon For a pardon doth but onely cleare the corruption of the bloud of these children which be borne after the pardon and so to make them capeable to inherit such lands which their Ancestor shall purchase at the time of the pardon or any time after but not to inherit such lands as the Ancestor was seised of before nor to purge the bloud of those children begotten before the pardon as to make them inheritable to any Ancestor Alien and Denizen A man seised of lands in Fee hath issue an Alien borne out of the Kings Leigeance he cannot be heire Propter defectum subjectionis though he be born within lawfull marriage if made Denizen by the Kings Letters patents yet cannot he inherit to his father or any other but otherwise it is if he be naturalized by act of Parliament for then he is not accounted in law Alienigena but Indigena but after one is made Denizen the issue that hee hath afterwards shall be heire to him but no issue that he had before If an Alien come into England and hath issue two sons these two sons Indigenae subjects borne because borne within the Realme and yet if one of them purchase land in Fee and dieth without issue his brother shall not be his heire for there was never any inheritable bloud between the Father and them and where the sons by no possibility can be heire to the Father the one of them shall not be heire to the other An Alien that is naturalized by Act of Parliament is to all intents and purposes as a naturall born subject differs much from denization by Letters patents for if he had issue in England before his denization that issue is not inheritable to his father but if his father be naturalized by Parliament such issue shall inherit so if an issue of an English man be born beyond Sea if the issue be naturalized by act of Parliament he shall inherit his fathers land but if he be made denizen by Letters Patents he shall not and many other differences there are between them An Alien borne out of the Kings leigeance his ancestors not being of the faith and leigeance of England is neither heire to inherit nor to purchase within this realme yet the Lord shall not have the escheate because he died without heire but the King which is the supreame head and the supreame person shall have this Land by the common Law But an Alien borne out of the Realme and within the Legiance of the King his Father and Mother being then and all their live of the legiance of the King shall inherit by the common Law Infants borne out of the Kings legiance the father and mother at the time of the birth being leigemen of England shall inherit by the Statute of 25 E. 3. so that the mothers of the children pass the Sea with the husbands leave and consent this statute extendeth all to children whose fathers and mothers were dwelling in England If an Alien marry here an english woman and hath issue this issue shall inherit to the wife the same law where the husband an English-man marry a woman that is an Alien and hath issue he shall inherit his father All which said trusts every one of them the said A. B. C. D. for himselfe severally and respectively Covenant severall no joynt covenant and for his severall and respective heire Executors and Administrators for as much as shall concerne him or them and his or their said heires Executors or Administrators c. doth covenant c. And the said A. B. C. D. do severally and respectively that is to say either of them for himselfe and by himselfe his severall heires Executor When Covenants are severall they are as severall Deeds written in one Parchment Coke 5. part fo 23.
to the Major to make Certificate notwithstanding the first Certificate and to have out of the Chancery a new Capias or no or whether at the suite of the Executors the Justices of the Bench might have awarded an alias Capias or a Writ of extent upon the first proceeding or not But it was agreed by the Court that no Scire facias did lie in this case but upon oath made by the Executors in the Chancery that the debt is not satisfied they shall have a new Certiorari to the Major c. to make a new Certificate of the Statute and so to begin all anew again Dier 180. Satute Staple THe Statute Staple is of two sorts or in two manners the one by force of the Statute 27 E. 3. cap. 9. the other by force of the Statute 23 H. 8. cap. 6. The first is an obligation of Record acknowledged before the Major of the Staple in presence of one of the Constables of the same Staple and is sealed with the seale of the Staple and Seale of the party but such Statute Staple shall not be taken but onely amongst Merchants of the same Staple and for Marchandizes of the same Staple 23 H. 8. ca. 6. The other is an obligation also of Record and of the same nature and force as the first is as to the execution thereof But it is acknowledged before the one of the chief Justices and in their absence out of Terme before the Major of the Staple at Westminster and the Recorder of London and is sealed with their Seales viz. with the Seale of the Connusor of the King and of one of the said Justices or of the Major and Recorder 23 H. 8. cap. 6. The formes of these Statutes Staple vide West 108. 109. Note that all Statutes Merchant and Staple shall be brought to the Clarke of the Recognizances within 4 Months and inrolled within six months or else such Statute shall be void against Purchasors c. 27. Eliz. cap. 4. A Statute Staple must be certified into the Chancery in the like manner as a Statute Merchant and upon that Certificate a Writ of execution shall go presently forth both against the body si laicus sit and against the lands and goods of the Connusor returneable in the Chancery in the petty-bagg Office there and not into the Court of common Pleas or Kings Bench as the Writs of Execution upon a Statute Merchant shall and upon the Writ of execution the Sheriff shall take the body of the Connusor and shall also per sacramentum proborum legalium hominum juxta verum valorem Fitz. 131 d. presently extend and price and shall seise into the Kings hands his Lands his Goods and Chattels and that extent and prizement or valuation of the Lands and goods shall returne and certifie into the Chancery as aforeraid and therupon the Reconusee shall have another Writ called a liberate to the Sheriff out of the Chancery to deliver to the Conusee those lands and goods to the value of his debt and upon that liberate delivered to the Sheriff then such lands and goods as are taken in execution shall be delivered to the Connusee by the Sheriff and not before And this execution shall be made in manner as is before declared upon a Statute Merchant 27 E 3. cap. 9. Plow 62. b. And so note that upon a statute Merchant the connusor shall bee imprisoned for halfe a yeare and if hee doth not sell his lands within the same time for to pay his debts then his lands shall be delivered to the obligee until his debt be satisfied And upon statute staple the Debitor or connusor after that hee is taken shall not have liberty to sell his lands and goods within the halfe yeare as he shall have upon Statute Merchant But by force of this statute Staple if the money be not paid at the day forthwith after certificate therof in the chancery the creditor may have Execution of the body Lands and goods of the Debitor ss the connusor shall be imprisoned and all his lands and goods shall be extended instantly 27 E. 3 cap. 9 Also note that upon Statute staple the extent shall be first made and returned and aftet a Writ of liberate shall be awarded but delivery shall not be made at the beginning untill the thing appeareth certainly by the return of the Sheriff Plow 62. b. All obligations and specialties made to the King or to his use for any cause shall bee of the same force as Statute Staple is 33 H. 8. cap 59. and so for obligations made by parsons for their first fruits 26 H. 8. cap. 39. The lands of many Accomptants to the King shal be liable and put in execution as if they had been bound in Statute Staple 13. Eliz. Cap. 4. The heir that claimeth by the gift of his Ancestor shall be bound to pay the Kings debt 33 H. 8. cap. 39. The heir in taile by the same Statute shall be liable to pay the Kings debt due by his Ancestor Plow 240. b. 249 b. 554. b. Fitz. 217. c. But if tenant in taile become in debt to the King by receipt of the Kings moneyes or otherwise unlesse that it be by judgement recognisance obligation or other specialty and dieth the land in the seisin of the issue in taile by force of the said act of 33 H. 8. shall not be extended for such debt of the King For the Statute of 33 H. 8. extendeth only to the said 4. cases and all other debts of the King remain at the common law Execution upon Statute IF Tenant in Taile become in debt to the King by one of the said 4. wayes scil by judgment recognisance obligation or other specialty and dieth and before any prosces or extent the issue in taile bona fide alien or Lease the Land intailed now this Land shall not be extended by force of the said Act of 33 H. 8. C. 7. 22. So where debt was originally due to a subject and after comes or accrues to the King by reason of attainder Out-lawry Forfeiture gift of the partie or by any other way or meane such debt is not within the said Statute of 33 H. 8. to charge lands intailed in the possession of the heir in taile Co. 7. 22. But lands in fee-simple were extendable at the common law for debt of the King into whose hands soever they should come and therefore as to them the said Statute of 33 H. 8. was not but a declaration of the ancient law Co. 7. 21. Two Joyntenants in fee the one of them being a debtor of the King dieth the other shall hold discharged Fitz. Execut. 113. The heire shall bee chargeable to pay debt of the King although he bee not named or that this word Heir be not comprised within the recognizance obligation or specialty 33 H. 8. cap 39. The King shall be preferred in his suit and execution before common persons by the Statute 9 H. 3.
M. and of his heires for ever And as for and concerning the said Mannor of c. Vses raised for payment of debts and performance of his last Will. to the use of F. M. for life and then to daughters for portions in such manner as is next before limited And from and after such time as the said severall summes of c. shall or may be had levyed or taken then to the use and behoofe of the Executors and Administrators of the said F. M. for and during the terme of ten yeares then next following for and towards the payment of the debts of the said F. M. the father and for and towards the performance of his last Will Testament and from and after the end of the said terme of 10. yeares then to the use and behoofe of the said E. M. for his life without c. and so on with an intaile et supra Reddendo reservando A rent must be reserved out of Lands or tenements whereunto the Lessor may have resort or recourse to distrain therfore a rent cannot be reserved by a common person out of any incorporeall inheritance as advowsons commons Offices corody multure of a Mill. Reservations of Rent with all incidents belonging thereunto and how tenant in taile must reserve the rent upon his Lease A Man makes a Lease the first of October for ten yeares from the feast of St. Michael then last past yeilding to him and his heires 20. pounds at Michaelmas or within one month after in this case if the lesser die between the feast of St. Mic. and the end of the month the heir shall have the rent as incident to the reversion and not the executors as rent behind because it was not due till the end of the Month. And so if the Lessor betweene the said two daies had granted the reversion over and the Tenant attorne the Grantee shall have the rent as incident to the reversion Tithes Faires Markets Liberties Priviledges Franchises and the like But if the lease be made of them for years by deed it may be good by way of contract to have an action of debts but distrain the lessors cannot neither shall it passe with the grant of the reversion for that it is no rent incident to the reversion but if any grant be reserved in such case upon a lease for life it is utterly void because in that case no action of debt lieth But if a man deviseth the vesture or herbage of his land he may reserve a rent for that the thing is maynorable and the lessor may distraine the cattle upon the land a reversion or remainder of Lands or Tenants may he granted reserving a rent for the apparent possibility that it may come in possession they are tenements within the words of Litleton Vide fo 44. A man makes a Lease for yeares yeilding a yearly rent at the feast of Pasch or a month after with condition of re-entry and the Lessee tenders the rent at the last instant of the day of the feast of Pasch The Lessor in the case may not re-enter upon demand made the last instant of the month because the Lessee hath liberty to pay it then and the diversity was taken between the disjunctive reservation and when the reservation is at a certain feast and a condition is added that if it bee behind by the space of a month after the feast that then the Lessor shall re-enter there the lessee for the salvation of his Lease may not tender it at the last instant of the Feast day because he hath not such liberty and election as in the other case and it was resolved by all the Justices that in the said case of the disjunctive reservation if the lessor dy between the said two daies the heire shall have the rent and not the Executor A man leased certain lands for years yeilding yearly a rent of thirty pounds at Michaelmas and the Anuntiation or within 12. daies after every of the said feasts payable at the Fontstone in the Temple Church London upon condition that if the said rent of 30 l. or any part thereof be behind and unpaid by the aforesaid space of twelve daies next after any of the aforesaid Feasts or daies of payment thereof as is aforesaid therof as is aforeraid that then the said Lease shall be voide and it was adjudged that the lessee in safegard of his Lease shall have 12. daies after the 12. daies to pay the rent for when the rent is not paid at the first day it is as much as if it had been reserved upon the twelfth day after And where it is said per perdictum spacium 12 dierum post c. by good construction all the words ought to take effect viz. post aliquod festorum praedict seu dierum solutionis inde and dies solutionis is the 12. day after the feast and therefore the Lessee shall have 12. daies after the twelfth day which is dies solutionis post festum c. and that for the most a vaile of the Lessee for whose benefit over time was given and those words praedictum spatium 12. dierum standeth well in good sence viz. post praedictum spacium 12. dierum post praedictos 12. dies for that is praedictum spacium though it hath not the same commencement a the other hath And so the quere in 3. and 4. P. M. fo 142. well resolved Dier A Parson of a rectory made a lease for yeares rendant rent at Michaelmas or within a month after The Lessor died ten daies after Michaelmas and was barred by judgement of the Court because the lessor died before the rent was due Dame Eliz. Pawlet seised of the Mannor of Wade for her life by Deed indented demised the Mannor to William Pawlet for 99. yeares if she the said Dame Eliz did so long live yeilding the rent of 100. pounds at Michaelmas and Pasch or within 40. daies after either of the said feasts W. Pawlet made Dulcibel his wife Executrix and died Dulcibel took to husband Iohn More Esq Dame El. Pawlet made Edward Walgrove her Executor died the thirteenth day after Michaelmas her Executor brought an Action of Debt for the halfe yeares rent ended at the Feast before the death of the said Eliz. tota Cuâ—ia contra quaerentem Yeilding and paying therefore yearly during the said terme unto the said c. the yearely rent or sum of a 100. pounds Rent reserved to be paid of the thing demised and without any demand of the rents so note that by speciall consent of the parties a reentry may be for default of payment of rent without demand thereof Nomine penae forfeited for non-payment of rent without any demande made at two tearmes or Feasts in the yeare most usuall by equall portions the first payment therof to begin at the Feast c. next ensuing the date hereof the same payments to be made yearely at or in
life make a Feoffment that is a forfeiture and yet nothing passeth but his own estate But making a Livery in fee it is a forfeiture though none of the remainders be divested Coke 2. pars fol. 76. b. Bredons case vide plus fol. 50. this is a forfeiture and yet no reversion or remainder is divested out of the King A particular Estate of any thing that lyeth in Grant cannot be forfeited by any grant in Fee by Deed As if Tenant for life or years of an Advowson Rent Common or of a reversion or remainder of Land by Deed grant the same in fee this is no forfeiture But if such a Tenant levy a Fine c then it is a forfeiture Note The diversiâ—y between Livery and Seâ—sin of Land and the delivery of a deed and what is a good delivery of a deed in Law there is a diversity between Livery and Seisin of Land and the delivery of a Deed for if a man deliver a Deed without saying of any thing it is a good delivery but to a Livery of Seisin of Lands words are necessary as taking in his hands the Deed and the ring of the doore if it be of a house or a turff or twig if it be of Land and using the words aforesaid And a Deed may be delivered to the party without words without any act of delivery As if the Writing sealed lyeth upon the Table and the Feoffor or Obligor saith to the Feoffee or Obligee Go and take up the said Writing it is sufficient for you or it will serve the turne or take it as my Deed or the like words it is a sufficient delivery Cokes Littleton title Dower fol. 36. a. 29 H. 8. Dyer fol. 95 43 Eliz. inter Hawsly Lacker in Banco Rs. Hillary 12 Jac. Rs. in Com. Banco The Grant of a Seignory Rent-charge Rent-seck Attornment in toto withall incidents therunto as also the Remainder or reversion of any of these or the remainder or reversion of the Land it self is nothing worth without Attornment viz. the agreement of the Tenant that must be presently charged As Lord Mesne and Tenant the Lord grants his Seignory the Mesne must attorne and not the Tenant prevaile for the Mesne is Tenant to the Lord Lord and Tenant the Tenant letteth the Land for life or giveth in taile saving the reversion to himself Now if the Lord grant his Seignory he in the reversion must attorne to the Grantee and not the Tenant for life or Tenant in taile for he in the reversion is Tenant to the Lord and not the other But if the Tenant had let his Land to one for life the remainder in fee thereupon a grant of the Seignory the Tenant for life must attorne for he is Tenant to the Lord so is not he in the remainder so long as Tenant for life liveth If Lands be let for years or given in taile saving the reversion upon a Grant of the reversion the Tenant of the Land must attorne And an Attornment may either be by word as to say I agree or am content with the Grant Or I attorne to you and become your Tenant by force of the Grant or else by the delivery of a penny and to the Grantee c. in name of Attornment or by any other matter implying an agreement as by a surrender to the Grantee of the reversion praying in aide of him c. and if such an Attornment be not to the Grantee in the life of the Grantor then the Grant is void In the Grant of a Reversion depending on a Freehold the attornment of the Freeholder is sufficient though he be not the Tenant that must presently be charged As if Lands be let to a man for years the remainder to another for life and hee in reversion grant the reversion to another the attornment of him in the remainder is sufficient 1 Littleton fol. 1â—… 〈◊〉 the 〈…〉 nly and where not If a man bind himself and his Heires in an Obligation or 〈◊〉 covenant by writing for him and his 〈…〉 or 〈◊〉 grant an Annuity for him and his â—…res in all these cases the Law chargeth the Heire after the death of the Ancestor with this Obligation Covenant Annuity Warranty yet with these three cautions that the party must by speciall name bind himself and his Heires for if the party in the bond Covenant Annuity or Warranty doth not bind himself as well as his Heires in such case the Heire shall never be bound 2. Some Action must be brought against the Heire whilest the Land or other Inheritance resteth in him unalienated away For if the Ancestor dye and the Heire before an Action be brought against him upon those Bonds Covenants or Warranties do alien away the Land then the Heire is cleaned discharged of the burthen 3. No Heire is further to be charged then the value of the Land descendeth to him from that Ancestor that made the charge and that not to be sold outright but to be kept in extent and at a yearly value untill the Debt or damage be run out Neverthelesse if an Heire that is sued upon such a Debt of his Ancestor doth not deale clearly with the Court when he is sued that is if he come not immediatly by way of confession and set down the true quantity of his Inheritance discended and so submit himself as the Law requireth then that Heire shall be charged of his owne other Lands Goods and money for this Deed of his Ancestor As if a man bind himself and his Heirs in an Obligation of a hundred pounds and dieth leaving but ten acres of Lands to his Heire if his Heire be sued upon the Bond and cometh in and denieth that he hath any by discent and it is found against him by verdict that he hath ten acres this Heire shall be now charged by his false plea of his owne Lands Goods and body to pay the hundred pounds though the Land be not worth ten pounds All words which do prove by specialty Words onely which do shew a man to be a Debtor to another is a good Obligation without binding the Executor that the maker of the Writing is a Debtor to another that is a sufficient Obligation and though the Executor or Administrator are not expressed yet the Law will charge them because they represent the Estate of the Testator but the Heire shall never be charged without expresse mention of the Heire Dyer fol 2 3. Acquittance for one Rent is a discharge of all former Rents Those cannot be heirs If a Rent be behind for twenty years and the Lord make an Acquittance for the last that is due all the rest are presumed to be paid and the Law will admit no proofe against this presumption Cokes Littleton fol. 373. A Bastard can be no Heire nor have any unlesse it be his owne Child A man attainted of Treason or Felony can be no Heire nor have an Heir though it be his
go according to those agreements nature and reason allowing those provisions which equity and honesty is the use and the use being created in this sort the statute of 27 H. 8. containeth the estates of the Land as the use is appointed and so this covenant to stand seised to uses is at this day a conveyance of land and with this difference from a bargaine and sale in that this needs no inrolement nor needeth not to be a writing indented as a bargain and sale must and if the party to whose use he agreeth to stand seised of the land be not wife or Child Cosin or one that hee meaneth to marry then will no use arise and so no conveyance Vpon a fine Feoffement or recovery a man may limit the use to whom he will without consideration of bloud or money otherwise in a bargaine and sale or Covenant for although the law alloweth such weighty considerations of marriage and bloud to raise uses yet doth it not admit so trifling considerations as of acquaintance Schooling service or the like but where a man maketh an estate of his land to others by Fine Feoffment or Recovery he may then appoint the use to whom he listeth without respect of marriage kindred money or other thing it is not so when he maketh an Estate but agreeth to stand seised nor when he hath taken any thing as in the cases of Bargaine and Sale and Covenant to stand seised to Uses The last of the six conveyances is a Will in writing which course of conveyance was first ordained by the statute of 32 H. 8. before which statute no man might give land by will except it were in a Burrowgh-Towne where there was a speciall custome that men might give their lands by Will as in Lond. and many other places In what manner the statute of 32. H. 8. giveth power to dispose of lands by Wil. By the Statute of 32 H 8. a man may give lands by will in this sort first it must be by Will in writing Secondly he must be seised of an estate in Fee-simple for tenant for another mans life or tenant in taile cannot give lands by Will by that statute If a man be seised of Capite Lands and Socage he cannot devise but two parts of the whole Thirdly he must be solely seised and not jointly with another and then being thus seised for all the Land he holdeth in socage being tenure he may give it by the Will except he holdeth any peece of Land in capite by Knights service of the King and laying all his lands together he can give but two parts by will for the third part of the whole aswell in socage as in capite must discend to the heire to answer Wardship Livery and Primmer seisin to the Crowne And so if he hold Lands by Knights service of a subject he can devise but two parts of his Lands and the Lord by Wardship and the heire by discent is to hold A conveyance by devise of Capite Lands to the wife for her Joyner or to his Children for their good or to pay debt is void for a third part by 32 H. 8. And if a man that hath three Acres of Land holden in capite by Knights service do make a Jointure to his wise of one and convey another to any of his children or to friends to take the profits to pay his debts or Legacies or daughters portions then the third Acre or any part therof he cannot give by Will but must suffer it to descend to the heir and that must satisfie Wardship Yet a man having three acres as before may convey all to his wife and children by conveyance in his life time as by Feoffment Fine Recovery Bargaine and Sale or Covenant to stand seised to Uses and to disinherit the Heire but if the Heire be within age when the Father dieth the King or other Lord shal have that Heire in VVard and shall have one of the three acres during the VVardship to sue Livery and primer Seisin But at full age the Heire shall have no part of it but it shall go according to the conveyance made by the Father It hath been debated how the Thirds shall be set forth for it is the use The King nor Lord can intermeddle if a full third part be left to descend to the heir Entailed lands part of the Thirds that all lands which the Father leaveth to descend to the Heire being Fee-simples or in taile must be part of the Thirds and if it be a full Third then the King nor Heire nor Land can intermeddle with the rest if it be not a full Third yet they must take it so much as it is and have a supply out of the rest This supply is thus to be taken if it be the Kings VVard then by a Commission out of the Court of VVards whereupon a Jury upon Oath may set downe so much as shall make up the Thirds except the Officers of the Court of VVards can otherwise agree with the parties if there be no VVardship due to the King then the other Lord is to have a supply by a Commission out of the Chancery and a Jury thereupon But in all the Cases these Statutes do give power to him that maketh the VVill The Statute giveth power to the Testator to set out the Thirds himselfe and if it be not a third part yet the King or Lord must take that in part and have a supply out of the rest to set forth and appoint of himselfe which lands shall go for the Thirds and neither King nor Lord can refuse it and if it be not enough yet they must take that in part and onely have a supply in manner as before is mentioned out of the rest A Feoffment made to the use of ones VVill if his VVill be declared before or at the time of his Feoffment it cannot be altered because it is executed otherwise it is if his Will be declared afterwards 20 H. 7. 11. vide fol. 27. b. What persons may make Leases at this day There be three kinds of persons at this day which may make Leases for three lives c. in such sort as hereafter is expressed which could not so do when Littleton wrote Any person seised of an Estate in Fee-simple in the right of his Church and any person seised of an Estate in Fee-taile in his owne right Any Husband and VVife seised of any Estate of Inheritance in Fee or in Fee-taile in the right of his wife or joyntly with his wife before the Coverture or after viz. The Tenant in taile by Deed to bind his Issues in taile but not the Reversion or Remainder The Bishop by Deed without the Deane and Chapiter to bind his Successors the husband and wife by Deed to bind the wife and her and their Heires and these are made good by the Statute of 32 H. 8. which enableth them thereunto but to the making
8. of Uses the terme of the Feoffee was saved Also in the same Court Anno 28 Eliz. in the case of Ized it was resolved that where the Lord enfeoffed the Copyholder to the use of others that the Copyhold Estate by the saving of the said Act was preserved Devises IT is a principle in Law A Lease to A. for life the remainder to the right heires of B. B. haveing a daughter dieth his wife privily with child of a Son in this case the daughter claimeth by purchase and therefore the son borne after shall never divest it Coke 1. pars fo 95. that in all gifts be they by devise or otherwise it behooveth to have a donee in esse which hath power and capacity to take the thing given at the very time when it ought to vest for if there be not any such in rerum natura when the thing ought to vest then the gift shall be void Plow fo 345. For if a man devise a Lease or goods to I. S. which dieth and then the devisor dieth the Executor of I. S. shall not have them And if a man seised of lands in Fee devisable make his will and thereby devise his lands to I. S. and his heires and then I. S. dieth and afterwards the devisor dieth I. S. and his heires nor any of them shall take nothing by this devise and here the thing ought not to vest in the devisee untill the death of the devisor at which time the devisee was dead and so was not in rerum natura And as to that heires are named in the gift that is to say it is given to the devisee and to his heires for which cause they shall be contemned and concluded in the intent that is not so for heires are not there taken to be immediately takers but onely to expresse the quantity of the estate that the devisee should have for without expressing heires the Devisor might not properly make an estate in Feesimple in the devisee and none other But if a man devise Lands to one and his heires and the devisor dieth in the life of the devisee and then the devisee dieth now the heire shall take by the devise Coke prima pars fo 95 If a man lease lands to a man for life Contingent remainder and if the Lessor die without heire of his body that then the Lessee shall have the land to him and his heires in this case if the Lessee for life dieth and then the lessor dieth without heires of his body the heire of the lessee shall not have the land and so clearely holden Plowden com fo 483. Quere de hoc It was agreed for good law that the occupation of a Chattel may be devised by way of remainder but if the thing it selfe were devised to use the remainder were void for the gift or devise of a Chattel for an howre is pro imperpetuum and the donee or devisee may give it sell it and dispose it and the remainder thereupon is void Brook devise fo 13. The occupation of a Chattel personall may be devised by way of remainder A Lease devised 20. yeares to one for the first ten yeares the remainder to another or devised to one for so many yeares as he shall live the remainder to another a delivery to the first devisee serveth for him in the remainder also So though it be but the occupation of a terme which is so devised for the occupation and profits of the Land is all one with land it selfe but if the occupation of a Booke glasse or other Chattel personall be devised to one for life and after his death to another in like sort there a delivery to the first is no delivery to the other for their occupations are severall and in such Chattles personall the occupation is distinct from the property 7 H. 6. 30. Plowden fo 522. A devise to one and his heires Males is an estate taile but a devise to I. S. in Fee upon condition that if he pay not I. D 10 l. then I. D. to have it in Fee is a void condition and remainder for it is contrary to the law 27 H. 8. 27. 29 H. 8. Dier 33. But a devise of the fee-simple to Alice S. and after her death to B. is onely an estate for life the remainder for life to B. the remainder to Alice in Fee so as the husband of Alice In a devise by what words Fee-simple passeth if she die in the life of B. cannot be Tenant by courtesie 19 Eliz. Dier 357. If a man devise lands to a man for ever or to give and to sell or in fee-simple or to him and his Assignes for ever Fee-simple passeth but if the devise bee to a man and his Assignes without saying for ever the Devisee hath but an estate for life if a man Devise lands to one sanguini suo that is Fee-simple but if it bee semini suo it is estate taile If a man Devise Lands upon condition A devise upon a condition repugnant is voide that the Devisee shall not Alien this condition is void and so it is of a Grant Release Confirmation or other conveyance whereby a Fee-simple doth passe And so it is if a man bee possest of a Lease for yeares or of a Horse or of any other Chattel reall or personall and give it or set it upon any such condition When a man deviseth that the Executors shall set the Land A devise that the Executors shall sell the Land there the Land descendeth in the meane time to the heire and untill the Sale be made the heir may enter and take the profits But when the land is devised to his Executor to be sold there the devise taketh away the discent A device of Land to the Executors to be by them sold and vesteth the state of the land in the Executors and they may enter and take the profits make sale according to the Devise and here it appeareth that when a man deviseth his Tenements to be sold by his Executors is all one as if he had devised his Tenements to his Executors to be sold And the reason is because he deviseth the Tenements whereby he makes the discent Although that the last Will shall avoid the former Will yet if a man be seised of lands in Fee No alteration of such a Will and therof enfeoffe a stranger and declare his Will upon the Livery of Seisin made to the stranger that is that the Feoffee shall bee seised to the use of the Feoffor for terme of his life the remainder to I. S. in Fee now he may not alter this Will by a latter Will in prejudice of ceste que use in remainder because the use is in him in remainder forthwith so that he may set it but if in the same case the remainder of the use had been to the right heires of the Feoffor then the Feoffor might alter
this use by his last Will and if the Feoffor had declared his Will upon the Livery of Seisin that the Feoffee should be seised to the use of I. F. for life the remainder to the use of the Feoffor or in taile the remainder to the use of a stranger in Fee in this case the Feoffor may not alter this Will by his last Will Perkins Testaments fo 93. and 92. Such a Wil may be altered If a man seised of Lands in Fee thereof enfeoffe a stranger to the intent to performe his Will and after the Feoffor maketh his Will and deviseth the same Land to a stranger in Fee in this case the Devisor may alter this Will by a latter Will because in this case the Devisee shall not have this Land but by force of the Testatment and that may not take effect till after the death of the Devisor And the same law it is of Lands Tenements Rents or Common c. devisable by the custome used in any place c. And also the same law is it of all Chattels reall and personall devised Perkins Testaments fo 93. A Feoffment to performe a Will When a Feoffement is made to a future use as to the performance of his last Will the Feoffees shall bee seised to the use of the Feoffor and his heires in the meane time 35 H. 6. 22. 15 H. 7. 12. 37 H 6. 36. 11. H. 4. 52. 7 H. 4. 22. 1 Mariae 111. Dier Of such Will there is no alteration A Feoffment made to the use of ones Will if his Will be declared before or at the time of his Feoffment it cannot bee altered because it is executed otherwise it is if his Will be declared afterwards 20 â— 7. 11. If a man devise his land to W. N. solvendum 10 l. to his Executors and die A man deviseth lands to his wife so long as she should continue sole and if she marry the remainder in taile the remainder to his right heire so that the marriage is the limitation which determineth the estate and so the remainder beginneth upon the estate ended there Coke 10. pars fo 41. the Devisee hath Feesimple by reason of the payment without words to his heires for ever And that shall bee intended the intent of the Devisor so if a man sell land to W. N for 20 l. that shall be intended a Sale in Fee-simple without words heires for conscience c. Brook estates fo 78. Termor deviseth to his wife the Land for so many yeares as she should live and afterward the terme to his son and made his wife Executrix and died the wife prooved the Testament and entred and agreed to the devise and afterwards shee aliened the terme and died the son or his Administrator may enter A man deviseth his Land to I. S. that shall bee taken but for terme for life but if he saith paying 100 l. to W. N. that shall bee intended Fee-simple and if hee doth not pay it in his life time yet if his heire or Executor pay it it sufficeth Quaere of his Assignee Brooke Testament 18. A Devise to a man and his heires hee hath issue a daughter and dieth his wife privily with Child of a Son the daughter entreth she shall retaine the land for ever and yet the son is heire but not to toll the land before vested in the daughter If Lessee for yeares devise his terme or other his goods or Chattels by Testament to one for terme of his life the remainder over to another and dieth and the Devisee entreth and doth not Alien the terme nor give nor sell the Chattel and die there hee in remainder shall have it but if the first devisee had aliened given or sold it he in remainder had beene remedilesse Brook Chattel 23. And so B. thinketh it if it be forfeited in his life he in remainder is without remedie If a terme be devised to one his heirs males of his body his heire shall not have it but his executor for a terme which is but a Chattel may not be entailed and such Devisee may well Alien the terme to whom please him Coke 10. pars fo 22. If a man devise Lands to one to have to him and his heires after the death of the Devisors wife the wife although she were not named before the Habendum shall have an estate for life by this Devise The husband possest of a terme in jure uxoris suae maketh a Lease of parcell rendant rent the wife shall have the residue of the terme but not the rent 9. Eliz. Dier fo 246. If a man devise his land to his wife for her life upon condition that if she marry that then the land shall remaine to I. S. in taile this is a good remainder for the construction of this devise is to make the same condition to be a lymitation and not any condition and upon a lymitation or determination of a particular estate which is certaine and not uncertaine a remainder clearly may well depend A man possessed of a terme of yeares in the right of his wife cannot devise it to another by his Will for she hath an estate in it before and at the time of his death which preventeth the Devisee nor can he grant charge out of it for she surviving is remitted to the terme and therefore shall avoide the charge But by by an expresse Act he might in his life time have given it away but if a woman having Chattels personall take a husband the law devesteth the property out of her and vesteth it in her husband only What Deeds of Gifts shall be counted fraudulent Fraud IF a man make a generall Deed of Gift of all his goods this is suspicious to bee done upon fraud to deceive the Creditors And if a man which is in debt make a Deed of gift of all his goods to protract the taking of them in execution for his debt this deed of gift is void as against those to whom he stood indebted But as against himselfe his owne Executor or Administrator or any man to whom afterwards he shall sell them or convey them it is good What is sale bona fide and what not By sale any man may convey his own goods to another although he may feare Execution for debts he may sell them out-right for money at any time before the Execution served so that there be no reservation of trust between them that providing the money he shall have the goods againe for that trust in such case doth prove plainely a fraud to prevent the Creditors from taking the goods in execution A Deed of gift of goods to defraud Creditors is voide against them but is good against him his Executors or ministrators Where Sale in a Market Overt shall Bar the owner and where not IF a man steale my Goods or Cartel Market Overt or take them from me in jest or borrow them of mee and
claiming under him with penalty in the Statute of 27. Eliz. Cap. 1. This doth not extend to the avoyding of any grant c. upon good consideration and bona fide if any such conveiance be made with clause of revocation or alteration at his pleasure by writing and after he shall bargaine demise sell grant convey or charge the same Lands c. for money or other good consideration the conveyance not revoked or altered then the conveyance c. shall be void against the Barganees c. and all claiming under them lawfull Mortages only excepted A Lease was made of a Messuage and Lands for yeares A grant of land Habendum the reversion if the Lessee so long should live and afterwards the Lessor by his Deed indented granted the Messuage and Land to another to have and to hold the reversion to the grantee for life cum per mortem sursum redditionem vel forisfacturam of the Lessee aut aliter acciderit reddendo inde annuitie to the Grantor and his heires when the said reversion shall happen nine shillings and foure pence per Annum The Lessee dieth the Grantor of the reversion distraineth for the arrearages of the rent aswell before the death of the Lessee as afterwards whereupon four points were clearely resolved upon by the Court. That by the Demise of a Messuage and Land for life the reversion thereof doth passe but by the Grant of a reversion land in possession doth not passe Lofields case 10. pars fo 107. Plowden 197. A grant of the reversion Habendum the land By the Grant of a Messuage and Land Habendum revertionem c. or life after the death of the Lessee c. that the Habendum is good for in judgement of law nothing but the reversion is granted by the Premises and as in Throchmertons case Plowden Coment fo 147. when the reversion is granted habendum the land the habendum is adjudged good so when the land is granted habendum the reversion and after the death of the Lessee c. is in consideration as much to say as to take effect in possession after the death c. Also the habendum had been good although no mention had been made either of the Land or of the reversion in the habendum for the Office of the habendum is to limit the estate of the land contayned in the Premises It was resolved that by the said reservation the rent shall not commence before the reversion fall in possession and these words cum revertio predict acciderit shall be expounded according to the intention of the parties which was not that the Grantee for life should pay the rent before that he may take the profits to make the rent of them That the distresse was well taken for the Arrerages after the death of the Lessee and not for the arearages incurred before Statute released by matter in Law A statute was acknowledged the 26. of May the Cognusee by his release Dated the 25. May before released to the Cognusor all demands from the beginning of the world untill the making therof and sealed and delivered the release as his Deed the 27. May following the statute is freely discharged for the day of the delivery is dies confectionis but if the words had been untill the date or day of the Date of these presents then otherwise it had been See Dier fo 307. Defeasance of a statute mis-recited the statute becometh single If a Defeasance be made of a statute which is recited to bee made the tenth day of May where indeed it beareth Date the first day of May the Defeasance is void for the Mis-prision of time for the Law saith that in so much as it may be that there were two statutes the one dated the first day and the other the tenth day the time of the date is materiall Plowden fo 393. Attornement needlesse A reversion granted for yeares for consideration of money doth passe without Attornement Coke 8 pars fo 941. for let the case be that there is Lessee for terme of yeares or life rendant-rent Afterwards the lessor by Indenture for the consideration of 50 l. demiseth and granteth the Premises to another for 90. yeares rendant 40 pounds per annum although the first Lessee doth never Attorne yet the second demise shall be good and shall passe as a Bargaine executed by the statute of 27 H. 8. whereunto there needeth no Attornemnt or Inrolement of the Deed because it is not but a terme for yeares and no Frank-tenement And note that if a man for money do enffeoffe Alien and grant Land to one and his heires or in taile or for life by deed indented and inrolled that doth amount to a bargaine and sale and the land shall pass without livery and Seisin Attornement needlesse A grant of a reversion of Land habendum the land from the end and expiration of a former Lease in being is a good lease and needeth no attornement A demise of the reversion of Land Attornement needles habendum the reversion of the land from the end and determination of a former lease in being is a good Lease and needeth no attornement If a man make a gift in taile or a Lease for life Remainder voide the remainder to his owne right heires this remainder is void and he hath the reversion in him for the Ancestor during his life beareth in his body in the judgment of the law all his heires and this appeareth in a common case that if Land be given to a man and his heires all his heires are so totall in him that he may give the land to whom he will So it is if a man be seised of Lands in Fee by Indenture make a Lease for life Remainder voide the remainder to the heirs males of his owne body this is a void remainder for the donor cannot make his owne right heire a purchasor of an estate taile without departing of the whole fee-simple out of him as if a man make a Feoffement in Fee to the use of himselfe for life and then to the use of the heires males of his body this is a good estate taile executed in himselfe and the limitation is good by way of use because it is raised out of the estate of the Feoffees which the Feoffor departed with for a limitation of a use to himselfe had been good without question Cokes Littleton fo 22. b. The King may make a Lease for yeares rendant rent to a stranger and that is a good reservation Conditions Entries and re-entries may not be given or reserved to strangers and the stranger may distraine for it or have an Action of Debt after the lease determined and that is by reason of his prerogative which he hath above all persons for he is not bound so strictly by the lawes as others are but in the case of a common person otherwise it is because that no rent which is properly
next jure propinquitatis that is by right of representation and by right of propinquity And Littleton meaneth of the right of representation for legally in course of discent he is next of blood inheritable And the issue of C. doth represent the person of C. and if C. had lived he had been legally next of blood And whensoever the Father if he had lived should have inherited his lineall heire by right of representation shall inherit before any other though a Mother be jure propinquitatiâ—… neerer of blood But if there be Father and Son and the Father hath a brother that is Uncle to the Son and the Son purchase lands in fee and die without issue living the Father the Uncle shall have the lands as heire to the Son and not the Father yet the Father is neerer of blood because it is a Maxime in Law that inheritance may lineally descend but not ascend yet if the Son in this case die without issue and the Uncle enter into the land as heire to the Son and after the Uncle dieth without issue living the Father the Father shall have the land as heire to the Uncle and not as heire to his Son for that he cometh to the land by collaterall discent and not by lineall ascent and his Uncle enter into the land for if the Uncle in this case doth not enter into the land then cannot the Father inherit the land for there is another Maxime in Law herein implied That a man that claimeth as heir in Fee-simple to any man by discent must make himself heire to him that was last seised of the actual Freehold and inheritance And if the Uncle in this case doth not enter then had he but a Freehold in Law and no actuall Freehold but the last that was seised of the actuall Freehold was the Son to whom the Father cannot make himself heire And therefore Littleton saith And his Uncle enter into the land as he ought by the Law to make the Father to inherit as heire to the Uncle Note that true it is that the Uncle in this case is heire but not absolutely heire for if after the discent to him the Father hath issue a Son or a Daughter that issue shall enter upon the Uncle And so it is if a man hath issue a Son and a Daughter the Son purchaseth land in fee and dieth without issue the Daughter shall inherit the land but if the Father hath afterward issue a Son this Son shall enter into the land as heire to his brother and if he hath issue a Daughter and no Son she shall be Co-partner with her Sister As he ought by the Law These words as a Key do open the secrets of the Law for hereupon it is concluded that where the Uncle cannot get an actuall possession by entry or otherwise there the Father in this case cannot inherit And therefore if an Advowson be granted to the Son and his Heires and the Son die and this discend to the Uncle and he die before he doth or can present to the Church the Father shall not inherit because he should make himself heire to the Son which he cannot do And so of a rent and the like But if the Uncle had presented to the Church or had Seisin of the rent there the Father should have inherited For Littleton putteth his case of an entry into land But for an example if the Son make a Lease for life and die without issue and the Reversion discend to the Uncle and he die the Reversion shall not discend to the Father because in that case he must make himself heire to the Son If the Father make a Lease for years and the Lessee entreth and the Father dieth the eldest Son dieth before entry or receipt of the rent the younger Son of the half blood shall not inherit but the Sister because the possession of the Lessee for years is the possession of the eldest Son so as he is actually seised of the Frank-tenement and the Inheritance and consequently the Sister of the whole blood is to be heire And so if lands be holden by Knights service and the eldest Son is within age and the Guardian entreth into the lands An so likewise if Guardian in Socage enters But in the case aforesaid if the Father make a lease for life or a gift in tail and dieth and the eldest Son dieth in the life of Tenant for life c. the younger brother of the half blood shall inherit because the Tenant for life or Tenant in tail is seised of the Freehold and the eldest Son had nothing but a Reversion expectant upon the Freehold and therefore the youngest Son shall inherit the land as Heire to his Father who was last seised of the actuall Freehold And albeit a rent had been reserved on the estate for life and the eldest Son had received the rent and died yet it is holden by that the younger brother shall inherit because the seisin of the rent is no actuall seisin of the Freehold of the land but Liber Ass part 2. seemeth to the contrary Ideo quaere He that claimeth Lands Tenements Maxime upon collaterall discent or Hereditaments as collaterall heire to any one must claim from such an one that had an actuall possessession and died actually seised of the Frank-tenement and the inheritance in Fee-simple of those lands which he so claimeth by discent and not from such a one who had but a possession in Law or a reversion in Fees expectant on a Frank-tenement discendible unto him But to the lineall heire it sufficeth that the Ancestor should have been heire if he had lived But if such a collaterall heire claime from a collaterall Ancestor that had a possession in Law by his own purchase or reversion in Fee-simple expectant on a Frank-tenement by his own purchase it is sufficient Actuall possession Note that an actuall possession must be gained either by a mans own act or by the actuall possession of another but if neither by his own act nor by the possession of another he doth gain no more then discendeth unto him then the brother of the half blood shall inherit Possessio quid And this word Possessio is no other but pedis positio and extendeth onely to things whereof a man by his entry or other act may gain an actuall possession for when the eldest Son hath not an actuall possession or if it be such inheritance whereof any possession may not be gained per pedis positionem or by any other act then the inheritance by the Law shall discend to the brother of the half blood As for example The King by his Letters Patents createth a Baron and giveth the Dignity to him and his Heires and he hath issue a Son and a Daughter by one venter and a Son by another venture and dieth the eldest Son dieth without issue To whom shall the dignity discend To the younger Son for it may not be said that the
tenants of the Frank-tenement but such limitation after the Statute is void for then the Frank-tenement shall be in suspence for nothing may remaine in the Feoffees But hee said that those remainders in futuro were divested and destroyed by the Feoffment of Tenant for life and although the remainders are in custody of the Law yet they ought to be subject to the rules of the law for the law will never preserve any thing against the rule of the Law and because that the rule of the law is that he in remainder ought to take the Land when the particular estate determineth or otherwise the remainder shall be void and in this case forsomuch as by the feoffment of tenant for life their estate was determined and title of entry given for the forfeiture then those in the future remainder were not in esse to take it for this cause these remainders in futuro by this matter ex post facto were all utterly destroyed made void And no diversity when the estate of tenant for life determineth by the death of tenant of life and when it determineth in right by his forfeiture for in both cases entry is given to him in the next remainder and then if he may not take the Land when the particular estate determineth the remainders void A gift in taile was made to A. C. the remainder to the right heirs of A. S. the Donee made a Feoffment to B. in fee and after A. S. dieth his right heire shall never have the remainder nor any Charter that concerneth it for the estate of the Land was by the feoffment of S. in taile divested and discontinued and all estates vested in the Feoffee and there was not any particular estate either in esse nor in right to support the remainder when that shall fall for by the Feoffment of S. in taile his right heire was utterly gone But if tenant in taile were deceased and dieth that shall not toll the remainder for there is a right of particular estate to support the right of the remainder but when tenant in taile made a feoffment no right remained in him and so note that there ought to be a person in esse of both parties viz. that shall be seised to use and that shall take the use so that there needeth not onely to have a use limited but a person capable of the use when this Statute transferreth the possession thereunto and therefore if a person wanteth it is impossible to have the possession executed by this Statute to one which is not in rerum natura for the Statute saith c. If by a Feoffment to uses the estate shall be utterly out of the Feoffees and all vest in them which have the present uses then the future use shall never rise for it is impossible that it should be raised out of the possession of ceste que use for a use may not be raised out of a use for if A. enfeoffe B. in fee to the use of C and his heires with proviso that if D. pay to C. 100 l. that C. and his heires shall stand seised to the use of D. and his heires that is utterly void for the future use ought to be raised out of the estate of the Feoffee and not out of the estate of ceste que use And it was holden that the Feoffees after the Statute had possibility to serve the future use when it cometh in esse and that in the mean time all the uses in esse shall be vested and when the future use commeth in esse then the Feoffees if the possession be not disturbed by disseisin or other meanes shall have sufficient estate and seisin to serve the future use when that shall come in esse to be executed by force of the Statute and that seisin and execution ought to concurr and meet together at one selfe same time and in such case when the future use commeth in esse the Feoffees shall have by force of the act a qualified estate sufficient to serve the future use All the Justices and Barons of the Chequer but Periam Walmsley Gawdy concluded c. that forasmuch as the Statute of 27. H. 8. doth not extend but to uses in esse and to persons in esse and not to any uses that depend in possibility onely for this cause these contingent uses in the case at barr remaine so long as they depend in possibility onely at the common Law and by consequence they may be destroyed or discontinued before they come in esse and by all such meanes as Uses might have beene discontinued or destroyed by the common law And all the Justices and Barons of the Chequer agreed with the chiefe Baron and VValmsley in this point that these remainders limited in use in the case at the barr shall follow the rule and reason of estates executed in possession by the common law and therefore they al only agreed that if the estate for life in the case at the barr had been determined by the death of the Feoffees before the birth of the eldest son that the said remainders in futuro were void and never shall take effect although that the son were borne afterwards for a remainder in use ought to vest either during the particular estate or eo instante when the particular estate endeth as well as estates in possession All these cases last before touching contingent uses see Coke prima pars fo 120. Chudleis case unto the end of the said case If a future use come not in esse during the particular estate then it shall never take effect because it is in nature of a remainder which ought to take effect and vest during the particular estate and no use shall be executed by 27 H. 8. which are limited against the rule of the common law A use is in nature of a remainder and therefore in the raising of uses the order and rule of the common law touching remainders in all things must be observed but upon and by the limitation of a devise or limitation of a use a remainder may commence upon a condition which goeth to the destruction of the particular estate and one fee-simple may depend upon another If a man at this day make a feoffement in Fee to the use of A. for yeares and after to the use of the wife of B. which shall be this limitation to the right heirs to the wife is void because if it had been void it had been limited in possession So in the same case if the use be limited to A. for life and after to the use of the right heires of B. or to the wife of B. which shall be if A. dieth and then B. dieth or taketh a wife this remainder limited to the right heires or to the wife of B. is void for it were void if it had been limited in possession And 72 H. 8. intended to restore the good and the ancient common law and not to give more priviledge
cap. 18. and 33. H. 8. cap. 39. Debitor of the King possessed of a Lease selleth it bona fide This bindeth the King for it is but a Chattel Co. 8. 172. Note that the King shall levie the summe for which any is chargeable unto him not only against the party himselfe scil of his body his lands and goods in his own hands but in the hands of his Heires Assignes Executors or Administrators and if he hath no Executors or Administrators then in the hands of the possessors of the goods of the dead What Lands and goods shall be extended or taken by the Sheriff in Execution upon Statute c. in case of a common person NOte that upon Statute Merchant or Staple all the Fee-simple Lands which the said Connusor had at the time of the said Statute acknowledged or at any time after shall be liable to the said Statute into whose hands they shal ever come afterwards by alienation Feoffement or otherwise Stat. de mercator 13 E. 1. 27 E. 3. cap. 9. 23 H. 8. Co. 3. 12. But if the Debitor die the body of his heire shall not be taken but his Fee simple lands which descendeth to him from the Connusor shall be taken in form aforesaid if he be of full age or when he commeth to full age untill the debt be levied Statut. de mercator And so was the common Law before that in debt against the heir the Plaintiff shall have all the Land which discendeth to the heir in execution and yet he shall not have then execution of any part of the land against the father himselfe Note that it hath been holden that the heir shall not be charged where the Executors have assets Fitz. Executors 25. Br. Debt 237. 17 E. 4. 13. Plow 439. 440. But at this day the law seemeth otherwise scil that it is at the election of the Creditor to sue the heir or Executors when both have assets 4 E. 4. 25. 22 H. 6. 4. 10 H. 7. 8. Doct. Stud. 153. Dier 204. Plowden 439. 440. Also it seemeth that if the heire doth not confesse the action and shew the certainty of the assets which he hath by discent but plead nothing by discent or is condemned by default that there the Plaintiff shall have execution of his other lands or of his goods or of his body by cap. ad satisfac Plow 440. Note that Fee-simple lands of the heire which he hath by discent the day of the Writ purchased or after shall be liable but otherwise if he hath aliened before the Writ purchased unlesse it be by covin Co. 5. 60. Possession in law discendeth upon the heir shall charge him So where he enters upon a condition Br. assetts 8. Reversion upon an estate for life discends upon the heire that shall charge him Br. Assets 12. 19. A reversion shall be put in execution and the judgment shall be cum acciderit and in the meane time of the rent Di. 373. Fitz. Assetts 237. Note in debt a man shall have execution of no land but of that which the Defendant hath the day of the judgement given 2. H. 4. Fitz. Executors 24. If a man sue a Statute Merchant of parcell of the Lands in name of all the Lands he shall not have other execution afterwards Fitz. Execution 13. 4. If I have but one Acre by discent I shall be charged with 1000 l. by obligation made by my father by Belk 40 E. 15. Fitz. Execution 32 vide quaere For it seemeth that the heire may confesse what he hath by dscent and demand judgement whether of more then of the value therof he ought to be charged Lands intailed are liable but during the life of the Connusor as if tenant in taile be bound in a Satute or Recognizance the land taile shall be bound during his life but it is not bound against the issue in taile Br. Recog 7. yet if the issue in taile enfeoffe a stranger now execution shall be against the Feoffee 19 E. 3. Fitz receipt 112. But if Tenant in taile acknowledge a Statute or Recognizance and after alien the lands in the hands of the Feoffee or alienee shall be subvert to this Statute or Recognizance Co. 1. 62. and 2. 52. 8 H. 7. 89. Copy hold Lands are not liable nor shall bee extended upon a Statute or Recognizance Lease or Terme for life shall be extended Lease for tearme of yeares and all other goods and Chattels of the Connusor or Debitor are liable and shall be extended ss such which the Connusor c. hath in his owne possession and to his own use at the time of the execution sued or awarded But sale of Chattels bona-fide after judgement and before execution awarded is good but not after execution awarded as appeareth in 2 H. 4. fo 14. per curiam Yet by Babington 7 H. 6. Br. execution 116. if a man be condemned in debt or bound in a Statute the goods which he hath the day of the judgment or knowledge of the Recognisance shall be bound to the execution in whose hands soever they shall come quod non fuit negatum Co. 7. 39. a every execution in judgement of law hath relation and retrospect to the judgment But a fraudulent conveyance or gift of Lands or goods shall not advoid any execution vide le statutes 50 E. 3. ca. 6. 1 R. 2. ca. 9. 2 R. 2. Stat. 2. ca. 3. 3 H. 7. ca. 4. 13 Eliz. ca. 5. 7 les liures 43 E. 3. fol. 3. Dier 295. Co. 3. 81. 82. 83. Lands in ancient demesne are liable to the Statute vide Fitz. Execution 118. and retorne 109. contra Lands or goods holden joyntly by the Connusor with a stranger and the connusor is condemned in damages and dieth before execution those lands or goods comming to the stranger by survivor are not extendable Br. execution 126. 148. 13 H. 7. 22. a. Lands of a wife are extendable during the coverture by debt of the husband 15 H. 7. fo 14. Rent may be delivered in execution Fitz. avowry 237 Exec. 63. Rent extent by release of the party may be extended Co. 7. â—8 39. As if a man hath judgement to recover debt or damages by that the rent which he hath of any estate of Frank-tenement is liable to it and therefore although that after judgment that be released yet that may be extended But a man shall never have a thing extended upon an execution except that he may grant and assigne the same thing by Shelly 28 H. 8. fo 7. So the profits of an Office or other thing which may not be granted or assigned over shall not be extended Dier fo 7. Goods demised pawned or pledged may not be taken in execution for his debt that demised or pawned them during or terme that they are sâ— demised or pawned 22 E. 4. fo 10. 34 H. 8 Br. pledges 28. As as if a man bona fide lease his Sheep or Oxen for years or if he
the perticular Tenant If a man hath issue a Son of nine yeares and makes a Lease till his son shall come to his full age then the remainder to another in Fee nothing vesteth forthwith to him in remainder and the remainder is utterly void and yet it may take effect because the remainder ought to passe out of the lessor forthwith executed or executory either to him in remainder or to be in abeyance or custodie of the Law and a franktenement in such case cannot be an abeyance and therefore the remainder void Lease for yeares the remainder over in Fee if the tenant enter before livery his terme is good but the remainder is void because the remainder was not out of the lessor at the time of the possession taken by the particular tenant but if I appoint the Lease to commence at Michaelmas next the remainder over in Fee there although the lessor make Livery to the Lessee yet the Livery and Seisin and the remainder shall be void because there was no estate present whereunto the Livery may be annexed and whereunto it might unite in the meane time HEE to whom the remainder is appointed must at that very time be a person able and of capacity to take the remainder or else the remainder shall be void and it is a principle in Law that in all gifts be they by devise or otherwise it behooveth to have a Donee in esse which hath power and capacity to take the thing given at the very time when it ought to vest for if there be not any such in rerum natura when the thing ought to vest There is a diversity between a remainder limited by a particular name for a remainder limited by a general name may be good though the person be not in esse at the time of the remainder limited as in this case next following This remainder to I S may be good yet he hath no heir at the time of the remainder limited so of a remainder limited Primogenito filio But a remainder limited in particular by name of Baptisme and Sirname is not good if the partie be not in esse Coke 2. part Fo. 51. Sir Hugh Cholmleis case the gift shall be void Plowden Fol. 345. And therefore if a Lease be made to one for life the remainder to the Mayor and Commonalty of Cirencester which then have not capacity to purchase Lands and after they have gained a capacity to purchase and then the tenant for life dyeth the Mayor and commonalty shall not take the remainder because he was not a person able at the time of the remainder appointed to take it so if the remainder were appointed to him whom tenant for life shall name If a Lease be made to one for life the remainder to I. S. in Fee who is a monke professed and afterwards is derained and then the Tenant for life dyeth I. S. shall not have the remainder because he was not a person able to take it at the time of the remainder appointed But if Land be given to one Et filio suo primogenito and he hath no issue at the time of the gift and afterwards he hath a son that Son shall have the Land by way of remainder and yet the remainder was not out of the lessor neither did it vest at the time of the Livery but the law shall conster the Livery and limitation most strong against the lessor Plowden 296. Lessee for yeares the remainder to the right heires of I. S. this remainder is utterly voide and the Livery thereupon is voide because there is no person capable to take the Franke tenement at the time and Livery Seisin may not be in suspence where the frank-tenement may not be in obeysance but Affees may where the franck-Tenement is well disposed and where there is a Tenant thereof to the Precipe THe thing whereof a Remainder shall be created must be in esse before and at the time of the appointment and creation thereof or else the remainder is voide For if I grant a rent out of my Land Vide fo 38. the remainder in Fee this remainder is void because the rent was not in esse before But at the beginning of a grant a man may grant a rent in such manner as pleaseth him And a man may grant a rent newly created to begin after the death of I. S. But when a rent is in esse or a reversion remainder or other thing a man may not make it to be in esse for a time and to cease for another time as to grant it to one after the death of another or from a day to come reserving to him an estate in the meane time NO remainder may commence upon any repugnancie or impossibility precedent nor upon any condition that goeth to the destruction of the perticular estate for conditions alwaies inure in a privity so that none shall take advantage of conditions but those which are privies for none shall enter for a condition broken but onely the Feoffor donor and Lessor and their heires And as none shall avoide an estate formerly made by the breach of a condition but onely the privies see none shall take a new estate by the performance of a condition but onely the privies If a Lease be made to two the remainder over in Fee after the death of the first of them this remainder is voide because the Servivor shall hold place after the death of the first and therefore repugnant and void If a Lease be made for life the remainder for life and if the first tenant for life dy then the remainder over to a stranger over in Fee this remainder dependeth on a repugnancy precedent and therefore voide If a Lease be made for yeares rendant rent and upon condition of none payment the remainder to a stranger and Livery is made accordingly that is a void remainder which doth commence upon a repugnancy precedent and which dependeth upon a condition which goeth to the destruction of the perticular estate and especially where such a remainder is created by livery and sesin But by a limitation of a devise or by limitation of use such remainder is good as a Feoffment to the use of I. S. for years and upon payment by him of twenty pounds the remainder to I. D. for life this is a good remainder So it is where the remainder is created by the limitation of a last will as if a man devise his Lands to his wife c. If a man make a Lease for life rendant rent and upon condition that if the rent be behind then the remainder to a stranger in Fee after the first estate ended that remainder is void because conditions inure alwaies in a privity c Lessee for life upon condition that if I.S. pay the lessor twenty pounds that then the lessor shall enter upon Tenant for life and then the remainder over to another that remainder is void because by the
entry the first livery is made void and there is no perticular estate continuing whereof a remainer may depend If a man devise his Lands to his wife for her life upon condition that if she marrie that then the Land shall remaine to F. M. in taile this is a good remainder for the construction of this demise is to make the same condition to be a limitation and not a condition and upon a limitation or determination of a perticular estate which is taken and not uncertaine a remainder clearely may well depend As if a Lease be made for life upon condition that if the Lessee die the remainder to a stranger that is a good remainder because it commenceth upon the determination of an estate which is certaine and not uncertaine for every man must die and every terme must end and therefore it is no condition but a limitation or appointment when the terme shall commence If I make a Lease for life upon condition that if the Lessee doth such an act he shall have fee and he doth it accordingly there he shall have Fee because he is privie to the condition and therefore shall take the benefit thereof A Lease made for yeares if the Lessee shall so long live which is a word conditionall and doth precede the remainder therefore the remainder which doth commence upon a condition is voide Plowden fo 25. But if I make a Lease for life upon condition that if the Lessee doth such an act that then hee shall have Fee and he doth it accordingly there he shall have fee because he is privie to the condition Lessee for five yeares upon condition that if he pay me twenty pounds within two yeares he shall have fee the Fee passeth forth of the lessor forthwith Lessee for yeares upon condition that if I. S. marry my daughter during the estate for life that then it shall remaine unto him this is a good remainder and yet it doth commence upon condition for there is an estate whereupon a remainder may be founded and the condition doth not trâ—nch to the destruction of the particular estate If I make a lease for yeares the remainder for life upon condition that if he in remainder doth not such an act that the remainder shall be void Now before the condition is broken the remainder is good and in him to whom it is appointed but if the condition be broken then the remainder is out of him and in the person of lessor again Lessee for life the remainder to A his wife for her life if she live so long sole and unmarried the remainder to D. their Son for his life the remainder to D. is good though it commence upon a condition because the particular estate continueth and the condition goeth not to the destruction of the particular estate and the first remainder doth vest during the particular estate which maketh the latter to be good though it commence upon the condition But quaere whether the 2. remainder shall begin upon her marriage or death WHen a particular estate which doth support a remainder may determine before the remainder may commence there the remainder doth not vest forthwith but dependeth in contingency Contingent Remainders Vid. fol. 29. As if one make a Lease to I S. for life and after the death of I D. the remainder to another in Fee this remainder dependeth in contingency for if I S die before I D. the particular estate is determined before the remainder can commence So if a Lease be made to A for life and if B die before A that then it shall remaine to C for life this is a good remainder upon contingent if A survive B A Lease is made to one for life the remainder to the right heires of I S. this remainder is good upon contingent that is if lessee for life survive I. S. or else not A lease to A. for life the remainder to B for life if B. dy before A. the remainder to C for life this is a good remainder on contigent if A survive B Plowden Colethirst and Beiushin H. leased to I. for the life of I. after the death of H. to I and his heires this is a good remainder upon contingent for if H. die living I. then the remainder is good but if H. survive I. then the remainder is voide WHen a remainder is limited to take effect by doing of an act which act shall be the determination of the particular estate yet if the act depend upon a casualty and meere incertainty whether it shall happen or not there the remainder vesteth not forthwith but dependeth in contingency Vide fo 51. a good note if a man make a Feoffment to the use of B until C. shal come from Rome into England after from such coming to remain over in fee this remainder dependeth in contingency for it is uncertain whether I. will ever come into England or not and a remainder ought to commence in possession when the particular estate endeth as well in Wils as in grants for there may not be a mean time between them And every remainder contingent ought to vest either during the particular estate or eo instante Contingent remainder that it determineth for if the particular estate be ended or determined in deed or in Law before the contingency happen then the remainder is void As for example Fr. Archarde was seised of lands in fee holden in Socage and by his will in writing devised the Land to Ro. Archarde the father for his life and after to the next heire male of Robert and to the heires males of the body of such next heir male Ro. hath issue Jo. Fr. dieth Ro. enffeoffeth Ren. with warranty upon whom J. entreth and Ren reenters and then Ro. dyeth the right heir male of Robort may not enter for the forfeiture in the life of Robert for hee may not be heire as long as Robert liveth Note that By the Feoffment of tenent for life the remainder is destroyed for by the Feofment of Ro. his estate for life was determined by condition in law therunto annexed and that may not be revived afterwards by any possibility therfore the contingent remainder destroyed So if Tenant for life the remainder to the right heirs of I S be disseised and the disseisor levies a fine at the common Law the right heir of I S shall be bound But in the former case if the tenant for life had been disseised and died yet the remainder is good for the particular estate remaineth in right and might have been revested but not in this case Archers case prima pars Lo. Coke Remanere definitio Remanere dicitur quasi terra remanens A remainder is that which passeth forth of the Lessor at the time of the perticular estate made Reversionis definitio A reversion is that which is left in him that made the perticular estate reversion is derived of this word revertor so
that reversio terrae is the returning of the Land which is as much in sence as my Lord Dyer defineth it as the Land returning so that reversio terrae is terra revertens which is the Land in a certain degree that is to say when it is discharged of the perticular estate and possession thereof is come thither where the revertion was Plowden 160 196. Creation of Estates The Creation of all manner of Estates by the Habendum of the Deed. TO have and to hold to the said William Hum her his Executors Administrators and Assignes from the ensealing and delivery of these presents unto the end and terme Habendum and for and during the whole time and terme of a hundred years from henceforth then next and immediately ensuing and fully to be compleated and ended if the said William Humber so long shall live and if it shall happen the said William to decease before the end and determination of that said Terme living the said Margaret then to have and to hold the same messuage c. from and immediately after the decease of the said William unto the said Margaret for and during the whole Terme of 100. yeares from thenceforth then next and immediately ensuing and fully to be compleated and ended if the said Margaret so long shall live and keep her selfe sole and unmarried and if it shall happen the said Margaret to decease before the end and determination of the said tearme or not to keep her selfe sole and unmarried during the said tearme then to have and to hold the said Premises unto Henry Humber Habendum To have and to hold to the said Edmund Clark and his Assignes immediately from and after the death and decease of the said Maud Symmes unto the end and tearme and for and during the whole time and tearme of 100 yeares from thenceforth next and immediately following fully to be compleated and ended if the said E C. so long live and to have and to hold the said Messuage c. to the said Jane C. and her Assignes immediately from and after the decease of them tâ—e said M. S. and E. C. unto the end and tearme of 100 years from thenceforth c Note that in such a Lease all those that shall take in remainder Note must be made parties to the Lease To have and to hold to the said R. I. and his Assignes from the feast of St. John Baptist last past before the date hereof c from hence forth from the ensealing and delivery of these presents unto the end and terme and for during the whole terme of his naturall life and from and immediatly after the death of him the said R. I. the said Messuage or Tenement and all other the Premises with all and singular their and every of their appurtenances to remaine and be unto the said I. I. and her assignes for and during the tearme of her naturall life And after the death of the said R. and I. c. To have and to hold unto the said R. I. his Executors and Assignes for the time and terme of 99 yeares from henceforth next ensuing fully to be compleated and ended if G.I. R. I. and M. I. the sons and daughters of the said R. I. partie to these presents by Joane his now wife or if any of them the said G. R. and M. children of him the said R. I. partie to these presents as aforesaid shall so long live To have and to hold to the Lessee and his heires during the lives of A. B. C. and the longest liver of them To prevent an Occupant this limitation shall prevent the occupant and yet the Lessee may assigne it to whom he will or if he hath already an estate for another mans life it were good to assigne his estate to diverse men and their heires during the life of ceste que vie For If A. hath Land conveighed to him for the life of B and A. dieth without making any estate of it whosoever first entreth into the Lands after the death of A shall have the Land during the life of B. For to the heire of A. it cannot goe because it is no inheritance nor to his Executors because it is not a testimentary estate that should goe to the Executors as goods and Chattels Limitations which do determine an estate without entrie or claime vide plus fo 17. To have and to hold to the Lessee quousque viz. untill I. S. come from Rome A Lessee to a woman quam diu casta vixerit or to a Widdow for her life si tam diu in pura viduitate vixerit or to another dummodo solverit talem redditum or quamdiu as the Lessee shall be dwelling on the Mannor or quamdiu the Lessee se benegesserit donee us quead quousque tam diu to have to the Lessee for 100. yeares if the Lessee so long live all these are limitations which do determine the estate without any entry or claime A Lease is made to A. and his assignes habendum to A. during his and the lives of B. and C. this is a good Lease for these three lives and the longest liver of them Lo. Coke 5. part fo 13. A Lease to A. and B. for their lives A. dieth B. shall have it during his life it is an interest But if a Lease be made to I. S. during the life of A. and B. there if one of them die the estate is utterly determined for that is a limitation Habendum reddendum To have and to hold unto the said I. W. his Executors and Administrators from and immediately after the time that the estate tearme and interest which the said I G now hath of in or to the Premises shall happen to be ended by the death forfeiture surrender or other expiration of the estate and terme of the said I G. formerly granted by coppy of Court-Roll by Sir S. P. Knight deceased to the said I G. and I W. and to one Do. White deceased for the tearme of their lives and the longest liver of them successively at the will of the Lord according to the custome of the Mannor of R. aforesaid which said Copy of Court-roll beareth Date the fifth day of Aprill in the ninth yeare of the raigne of our Lady Q. E. for and during the tearme of 99. years from henceforth then next and immediately ensuing and fully to bee compleated and ended Reddendum if the said I. W. A. W. and B. W. or either of them so long shall live yeilding and paying therefore yearely unto the said H. P. his Heires and Assignes during the said respective tearme hereby limited at the Mannor house of the said Sir H. P. at Saparton aforesaid the sum of thirteen shillings four pence of currant english money at the feasts of St. Michaell the Arch-angell and the Anuntiation of the blessed Virgin Mary by equall portions the first payment thereof to begin and to be made
his wife and to the heires of A. of her body by I. to be begotten * Tail generall in the husband the wife for life only Habendum to I. and A. his wife and to the heires which I. shall beget upon the body of A. his wife both have estate taile because these words heires is not limited more to one then to the other * The wife hath taile generall the husband frank tenement Both have estate taile Taile speciall in both Habendum to I. and A. his wife and to the heires of their two bodies this is taile speciall as well in the husband as in the wife But if I. give Lands to I. A to his heires which he shall beget of A. his wife here A. hath but estate for life and I. hath estate in taile speciall but in this case if he had said to the heires and not to his heires then either of them should have had an estate in taile speciall because these words heirs is referred as well to the one as to the other If Tenant in taile speciall hath issue and die the issue is forthwith remitted to the taile generall and such issue and all his issue shall stand so seised for evermore Vses 27. H. 8. cap. 10. Creation of estates taile raised by way of limitation of uses The expression of divers and sundry uses TO have to the said Feoffees their heirs and assignes for ever by the severall uses intents and purposes and under and upon the conditions provisoes and limitations hereafter in and by these presents limited and declared and to no other use intent or purpose that is to say the aforesaid Mannors of Compton c. withall and singular their and every of their rights members and appurtenances whatsoever to the use and behoofe of the said H. P. for the terme of his life without impeachment of c. For sale of Lands to pay debts and Legacies and after his decease to the use and behoof of the abovenamed Feoffees and their heirs in trust and confidence and to the intent purpose that they the said Feoffees and the survivors or Survivor of them shall and will by sale of such parts and parcels of the Premises as they or the survivors or survivor of them or their heirs shall think fit to bee sold and by the issues and profits of the residue pay and discharge all the Debts Legacies and Funeral expences of the said Sr. H. P. and after payment and discharge of the same debts Legacies and expences shall and will conveigh and assure all the residue of the Premises limited to their use For intailing of Lands to the tenth generation and remaining unsold unto the said H. P. Esq sonne of the said Sir H P. and the heires of his body issuing and for default of such heires to the use of the said La. F. P. La. S. and I. F. and the heires of their severall bodies issuing and for default of such issue to the use of the right heires of the said Sir H. Poole for ever To the use of the first son of the body of the said K. P. lawfully to be begotten and of the heires males of the body of such first son issuing Entaile first to the issue male and then to the issue female when they shall come to the age of 〈◊〉 And the said Mannors of S. P. C. c. and all other the Premises whereof and wherein there is not any use in and by these presents already specially lymited and declared to the use and behoofe of the said Sir H. P. Knight for the terme of his life without impeachment c. And from and after his decease to the use and behoofe of the said H P. son of the said Sir H P. for the tearme of the life of the said H P. the son without impeachment c and from and after his decease to the use of the first son to be begotten of the said H. P. son of the said Sir H. P. and of the heires males of the body of the said first son issuing and so on to the tenth son and for default of such heires to the use of every other the sons to be begotten by the said H. son of the said Sir H P. as they shall be in seniority or age and of the heirs males of the severall bodies issuing that is to say as for and concerning the Mannors of c. with their and every of their severall rights members and appurtenances to the use of him the said H. P. for and during the tearme of his naturall life without c. and from and after his decease to the use of the first son of the body of the said H P lawfully to be begotten A Fine was levied to the A. uses of and the heries males of his body untill hee or the heirs males of his body have done such an act and after such a thing or act done to the use of another in taile died without issue without anything done and it was adjudged that the remainder was in contingency shall never fall Coke 10. a part fo 85. Uses Jointer for the Wife Taile speciall and of the heires males of the body of such first son issuing and so to the tenth son And for default of such issue then to the use of every other the sons c. and for default of such issue to the use of B P. the now first begotten daughter of him the said H P. from and after such time as the shall accomplish the age of sixteen yeares for and during the terme of her life and after her decease to the use of the first Son of her body which shall be begotten by such her husband which shall be of the sirname and blood of the Pooles and of the heires males of the body of such her first son issuing and so to the tenth son Then entaile the lands in forme aforesaid to the first 2. 3. 4. 5. and tenth daughter and this limitation following and to the use of the Executors of him the said H P. for and untill such time as the severall daughters which shall take any benefit by vertue of these presents shall accomplish their severall ages of 16. yeares respectively and after the death of the said H P. without issue male or female qualified as aforesaid Then to the use of Dame F P wife of one Sir N P Knight sister of the said H P for and during the terme of her naturall life and after her decease to the use of H P. Esq the first son of the said sir N. P. and Dame F and of the heires males of the body of the said H issuing and so to the tenth son And for default of such issue then to the use of the right heires of the said H P party to these presents for ever And as for and concerning the Mannors of C and S to the use of the said H P for
and Administrator and for so much onely as concerneth or may concerne his owne act and not one for anothers act doth severally and respectively and not joyntly covenant promise and agree to and with the said E. F. c. And the said A. B. C. D. do severally covenant c. to and with the said E. this is a severall covenant without further words Coke 5 part fo 2. 3. And the said A. B. C. D. each of them severally for himself his severall heirs Executors and Administrators doth severally and not jointly covenant c. Proviso conditions the apt words to make them Vide. plus fo 186. 19. a Vid. Coke 2. pars fo 71. 72. 73. good matter touching Provisoes and conditions No condition may be made to be properly said a condition but by him which departeth with the estate and by his owne words and the words conditionall must be restraining and must compell the person to do or not to do a thing upon paine of forfeiture of the thing given and no words make a condition unlesse it be uncertaine and may be broken or kept and every condition must either go to the inlarging of the estate or utter destruction thereof and these are the apt words to make a condition Illa quod if the Lessee doth such an act Si contingat proviso semper sub conditione for these are words conditional pro in case of a grant executory maketh a condition as a grant of Annuity Pro concilio impendendo but those words ad effectum ea intentione ad solvendum or such like make no conditions If a man by Deed make a Lease for yeares wherein is this clause and the said Lessee shall continually dwell upon the Lands leased upon pain of forfeiture of the said terme the words amount to a condition Quod non licebit to the Lessee to give grant or Alien his estate upon paine of forfeiiure this will make the Lease defesible and this reason was given by the Court in the common Pleas tempore Reginae Elizabethae that a Lease for yeares was but a contract which may begin by word and by word may be dissolved But such words in a Lease for life make no condition in that a Franke-tenement cannot be avoided by word without conditional words that will give an entry tamen quere The apt words of lymitation are quam diu dum Words of limitation which determine an estate without entry or claime Vide plus fo 5. When this word proviso shall make an estate or interest conditionall three things are to be observed viz. that the proviso dot not depend upon another sentence nor participate thereof that the proviso be the word of the Bargenor Feoffor Donor Lessor c. That it be compulsary to enforce the Barginee Feoffee c. to do an act Coke 2. pars fo 71. 72 73. quousque durante as a grant out of the Mannour of Dale quam diu the Grantee shall dwell there a Lease of Land dummodo the Lesse shall pay 20. pounds a lease to a Feme dum sola vixerit a Feoffment in Fee tanque the Feoffor hath paid him certaine tanque hee be promoted to a benefice tanque the Lessee hath levied a 100 pounds If a man make a Lease quousque I. S. come from Rome a Lease for life to a Widdow si tam diu in pura viduitate viveret A Lease for a hundred yeares if the Lessee live so long dummodo solvat to the Grantor for his life 10 pounds all these are words of lymitation which determine the estate without entry or claime and if no livery bee made then those Lessees have estate but at will A man seised of Lands in Fee having issue divers sons by deed indented covenanted in consideration of fatherly love and for the advancement of his bloud or any other good considerations to stand seised of three Acrees of land to the use of himselfe for life and after to the use of Thomas his eldest son in taile and for default of such issue to the issue of the second son in taile with divers remainders over with proviso that it shall be lawfull for the covenantor at any time during his life to revoke any of the said uses c. This proviso being coupled with a use is allowed to be good and not repugnant to the former states but in case of a Feoffement or other conveyance whereby the Feoffee or Grantee c. is in by the common Law such a proviso were meerely repugnant and void If a man hath power of revocation and after to the intent to defraud a purchasor doth Levy a fine or make a Feoffment or other conveyance to a stranger whereby he extinguisheth his power and after bargaines and sells the land to another for valuable consideration the bargainee shall enjoy the Land for as to him the Fine Feoffement or other conveiance whereby the condition was extinct was void by the statute of 13. Eliz cap. 5. and so the first clause whereby all fraudulent and covenous conveyances are made void as to the purchasor extend to the last clause of the act viz. when he that makes the bargaine and sale had power of revocations and it was said that the Statute of 27. Eliz. hath made voluntary estates made with power of revocation as to purchasors with equall degree with conveiances made by fraud and covin to defraud purchasors and such volunteary conveyances which are originally subject to power of revocation be it in presenti or in futuro shall not stand against a purchasor bona fide for valuable consideration 3. part Lo. Co. fo 80. Twines case vide Twines case 3. part fo 83. And first in the case aforesaid if the covenant or who had an estate for life doth revoke the uses according to his power he is seised againe in Fee without entry or claime Secondly he may revoke part at one time and part at another Thirdly if he make a Feoffement in Fee or levy a fine c. of any part this doth extinguish his power but for that part whereas in that case the whole condition is extinct but if it be made of the whole all the power is extinguished so as to some purpose it is of the nature of a condition and to another in nature of a limitation Fourthly if he that hath such power of revocation hath no private interest in the Land nor by the Cessor of the estate shall have nothing then his Feoffement or fine c. of the land is no extinguishment of his power because it is meere collaterall to the land Fiftly by the same conveiance that the old uses be revoked by the same may new be created or limited if the revocation doth so mention Sixtly that these revocations are favourably interpreted because many mens inheritances depend on the same Note That every use ought to be raised either by covenant out of the estate of the covenantor or by Feoffment Fine
Recovery c. by transmutation of the possession out of the estate of the Feoffees conusees c. Coke 6. part fo 27. Twines case fo 83. Lo. Coke 3 pars IF a man make an estate for life Conditions Vide plus fo 17. 6. fo 35. the remainder in taile the remainder over in Fee upon condition that any of them in remainder shall doe a certaine act then if hee doth not do it the Feoffer and his heires may enter without any words of re-entry in the proviso and thereby shall defeate the estate in possession and all the remainders for he that entreth for a condition broken and a condition in Deed is in of such estate he had before the condition made but otherwise it is where an entry is made upon a condition in law Coke 8. pars Whittinghams case Vide. fo 50. b. For if Lessee for life or yeares grant a Rent charge out of the lands or make a Lease of some part of the terme or doth acknowledge a Statute or Recognizance and then afterwards doth make a Feoffment in Fee or commit any acts which are forfeitures in Law or doth surrender his estate to his Lessor yet the Lessor shall hold the Land charged And note that a condition in law which by force of a Statute giveth a recovery is stronger then a condition in Law which giveth an entry without a recovery For if Lessee for life make a Lease for yeares and then entreth into the land and doth Waste and the Lessor recover in an action of Waste against the Lessee for life he shal avoid the Lease made before the Waste committed But if the Lesse for life make a Lease for yeares and then entreth and makes a Feoffement in Fee the Lessor shall not avoide the Lease for yeares So if the Tenant make a Lease for yeares and then is attained of Felony or dieth without heire although the Lord recover by Writ or escheat yet he shall not avoide the tearme 8. pars fo 44. Whittinghams case Remainder If I make a lease for life upon condition that if the Lessee doth such an Act hee shall have Fee and he doth it accordingly there he shall have Fee because he is privy to the condition and therefore shall take the benefit therof Remainder Lessee for 5 yeares upon condition that if he pay me 20 pound within two yeares that then he shall have Fee the Fee passeth out of the lessor forthwith Remainedr So where a Lease is made for life upon condition that if I. S. marry my daughter during the Estate for life that then it shall remaine unto him this is a good remainder and yet it doth commence upon condition for there is an estate whereupon a remainder may bee founded and the condition goeth not to the destruction of the particular estate If I make a Lease for yeares the remainder for life upon condition that if he in remainder doth such an act that the remainder shall be void now before the condition broken the remainder is good and in him to whom it is appointed But if the condition be broken then the remainder is out of him and in the person of the Lessor againe Lessee for life the remainder to A. his wife for her life if she live so long sole and unmarried the remainder to D. their son for his life the remainder to D. is good though it commence upon a conditon because the particular estate continueth and the condition goeth not to the destruction of the particular estate and the first remainder doth vest during the perticular estate which maketh the latter to be good though it doth commence upon the condition but quaere whether the second remainder shall begin either upon her marriage or her death If a man for him and his Heires warrant lands to one and his Heires that is a generall Warranty Warranty and what words make a generall Warranty for that it is not restrained against any person in certaine Coke 1. pars fol. 2. This word give in a Feoffment importeth a generall VVarranty against all men during the life of the Feoffor And this word Grant in a Chattel-real doth import a VVarranty in it selfe alone without any clause of VVarranty so as there be in the Deed no speciall matter to qualifie the VVarranty by some speciall Covenant But this word Concessi or Demisi in case of Frank-tenement or Inheritance doth import not VVarranty Coke 5. pars fol 18. The clause of without impeachment of waste Waste in toto and the full definition of the word without impeachment of Waste and what is Waste giveth power to the lessee which shall produce an interest unto him if he doth execute his power during the privity of his Estate and therefore to examine it in reason these words Absque impetitione vasti are in effect as without demand for waste for Impetitio is derived of In and peto and petere is to demand and petio is a demand and sine impetitione is without any manner of demand or impeachment Then this word Demand is of a large extent for if a man disseise me of my land or take my Goods if I release unto him all Actions yet I may enter into the land or seise my goods for by the release of the Action the right or interest is not released but if in such case I release all Demands that shall exclude me not onely of my Action but also of my entry and sciser and of the right of my land and property in my Chattels But if the words had been Absque impetitione vasti per aliquod breve de vasto then the Action onely shall be discharged and not the property in the Trees but the Lessor after the cutting of them may seise them and the diversity appeareth in 30 E. 3. 44. in Walter Idles case where a Lease was made without being impeached or impleaded for waste whereupon it was gathered that these words Without being impeached for waste were not sufficient to barr the Lessor of his property And that if the Lessor had granted that the Lessee might do waste he by that hath power not onely to do waste but also to convert it to his owne use And the opinion of Wray chiefe Justice and Manhood cited in Herlakendens case was not judiciall but prima facie upon Arbitrement without any argument Coke 11. pars fol. 82. When Tenant in fees granteth all his estate to another the Grantee shall have no Fee-simple for want of these words Heires but estate for life but his estate in such case shall be without impeachment of waste as the estate of the Grantee of Tenant in taile shall be and the Feesimple shall be in Nubibus there as well as it shall be of an estate taile and there if he doth commit Treason and dieth the Fee-simple shall escheat to the Common Lord of whom the land is holden for that the blood is corrupt between him and his
Uses are raised by way of Covenant that Covenantor may not make leases by any Proviso But he may make voide the Indenture of Covenant and all the Uses in the same Indenture if he hath such a Proviso Nicholas Scroope seised in Fee of divers Mannors Vses and powers in Contingency and possibility may be by mutuall assent of the parties revoked and determined for as they may be raised by Indenture so by Proviso or Limitation annexed to them in the same Indentures they may be extinguished and destroyed either before or after their essence Co. 10. pars fol. 68. A Fine shall be paid to the King for the execution of an Vse upon a Covenant though no Fine be levied by force of the Proviso in the Statute of 27 H. 8. which otherwise should not have been 6. pars Coke fol. 28. having issue Anne his Daughter by Indenture dated 26. Junii 23 Eliz. for the preferment of Wynifride his Wife and Anne their Daughter covenanted with divers to stand seised of the said Mannors to the use of the said Nicholas Wynifride and Anne for their lives and after to the said Anne and of the Heires of her body with other Remainders over with a Proviso that if the said Nicholas during his life and after the debts paid mentioned in the Schedule annexed to the Indenture should be disposed or determined to disanull change alter enlarge diminish or make void the Uses or Estates or any of them of the Premisses that then it shall be lawfull to and for the said Nicholas at all times at his will and pleasure by his writing indented under his hand and Seale subscribed in the presence of thirteen Witnesses to determine disanull c. And also by the same writing at his will and pleasure or any other writing whatsoever signed and subscribed as aforesaid to limit declare and appoint the Uses of the same to the persons abovesaid or to any other person or persons c. Wynifride dieth and then Nicholas espouseth Elizabeth Morris and by Indenture ultimo Novemb. 33 Eliz. subscribed in the presence of three witnesses in consideration of a Joynture to be made to the said Elizabeth covenanted with W. and W. to stand seised of the said Manors to the use of the said Nich. and Eliz. for their lives and then to the use of the right Heires of the said Nicholas for ever The Covenant in this case to stand seised to the use of himselfe and of his wife Elizabeth and after to his right Heires is a good revocation in Law of the former Uses and the last Vses are well raised though he never made any expresse signification to determine or disanull the same But it was resolved that all incident circumstances prescribed by the Proviso viz. As to the subscription witnesses and other circumstances ought to be observed in the second Indenture Note that in the case of Cheny in Cur. Wardor 27 Eliz it was resolved that where he in reversion enfeoffed his Lessee for yeares to the use of others that although the Lease should be surrendred and extinguished by the Common Law yet by the saving of the Statute of 27 H. 8. of Uses the terme of the Feoffee was saved Also in the same Court 28 Eliz. in the case of one Ised it was resolved that where the Lord enfeoffed the Copyholder to the use of others that the Copy-hold estate by the saving of the said Act was preserved Where any be seised to the use of a Trustee of another Ceste que use or Trustee shal have the possession in such quality manner and condition as he had the Use or Trust So when any be seised to the use or intent that another shall have a yearly rent out of the said lands Ceste que use of the rent shall be deemed in the possession thereof of like estate as he had that use 27 H. 8. cap 10. Vses created by Bargaine and Sale and by way of Covenant Bargaine and Sale and Covenants vide fol. 7. A Deed was made Habendum eis heredibus eorum imperpet ad propriū opus usū of the Feoffees imperpetuum and not heredum suorum cum clausula warranti heredibus assign suis in forma praedicta whereby it was doubted that the Feoffees had not fee because it was to them without Heires but if those words had failed it had been cleare that the consideration of seven hundred pounds had given fee for the Law intends sufficient consideration by reason of the said summe but when the Use is otherwise expressed by the party himselfe otherwise it is Dier 169. If a man sel his land by Deed indented and inrolled to I. S. and his Assignes the Barginee hath but estate for life for the word Assignes conteyned in the Deed interrupt the operation and construction of the Law and maketh exposition that it was not the intent of the parties to have a Fee-simple transferred A man selleth land to another and executeth an estate to the Vendee Habendum sibi imperpetuum without the words heires where the intent of the Barginor is to sell the Feesimple and the vendor upon request refuseth to make other assurance the vendee shall have a subpoena liber fundment legum Angl. A man in consideration of 100 pounds and of marriage covenanteth from thenceforth to be seised of certaine land to the use of himselfe for life and after to the use of his son in taile and the Deed is not inrolled according to the statute of 27 H. 8 yet the use and possession is charged because the said statute speaketh of Bargaine and sale only and the use is not because of bargaine and sale onely but also for marriage Plowden fo 4. Manxils case A consideration not expressed in the Indenture may be averred though that otherwise is contained in the said Indenture besides that which is averrable as for marriage and mony of marriage nothing is spoken It seemeth that any consideration which is good and reasonable and where there is a quid pro quo Bargaines and Sales to raise an use of inheritance or freehold must be by Deed indented and inrolled within six months in a court of Record at Westminster or in the county where the Land lyeth 27 H 8. cap. 10. is sufficient to alter an use at this day and the statute transferreth the possession to the use except only in case of Bargaine and sale which is excepted by the statute of uses Plowden fo 301. A consideration expressed in the Indenture is not examinable be it true or false Dier fo 169. A man by Indenture doth covenant in consideration that it shall raigne before Easter next and grant to bee seised to the use of another in Fee this altereth the use although the cosideration doth not availe for the consideration is not examinable where it is by Indenture and much more an use altereth where an Indenture is made for diverse good causes and considerations that he
covenanteth and granteth to be seised to his use in Fee although no consideration be expresly showne because the Indenture is an Estopell to say it was not a good consideration and it seemeth the Court may not examine the consideration and there is a diversity where the Grant is by Indenture and where by word only Nota. If a man hath power to make Leases for three lives he may not make a Lease for 99. yeares determinable upon three lives But if a man hath power by proviso to make any lease or Grant provided that such lease or Grant exceed not the number of three lives or 21. yeares there he may make a lease for ninety nine yeares if three lives so long live for that doth not exceed the number of three lives but that in truth is lesser for every tearme for yeares which is but a Chattle is lesser in estimation of the law then estate for life which is Frank-tenement If A. be Tenant for life the remainder in taile and A. hath power to make leases for twenty one yeares rendant the ancient rent he may not make a lease by Warrant of Attorney by force of his power because he hath but particular power which is personall unto him Lands may be conveyed 6. manner of wayes First by Feoffment executed from one man to another man and his heires by solemn livery and Seisin By Feoffement By Fine By recovereys Bargain and Sale By use By Covenant By Will if a lesser Estate be given then Fee-simple is it not calâ—ed a Feoffement unless the Fee-simple be conveighed A man in consideration of 100. l and of marriage covenanteth from thenceforth to bee seised of certaine land to the use of himselfe for life and afterwards to the use of his son in taile and the deed is not inrolled according to 27 H. 8. the use and profits is charged because the statute speaketh of bargain and sale only and the use is not because of Bargain and sale only but also for marriage Ploudens case Manxell fo 4. A Fine is a reall agreement made upon record in the Kings Court of Common Pleas at Westminster upon Fines What a Fine is and how lands may be converred therby Tenant for life the remainder to A. in taile the remainder to B. in tail c. with diverse remainders over and tenant for life suffers a common recovery wherein he voucheth A. and he the common vouchee that shall binde all the otheir remainders for no Covin or collusion may be supposed when the next in remainder in taile which hath the immediate inheritance is vouched Coke 10 pars fo 48. a rent may be reserved but no condition or Covenant this fine is a record of great credit and upon this Fine are made foure proclamations made openly in the common Pleas in every Terme and for foure termes together and if any man having right to the same make not his claime within 5. yeares after the proclamations ended hee looseth his right for ever an Infant a Feme covert a Madman or one beyond the Seas only excepted whose rights are saved so that he claime within 5 yeares after full age death of her husband recovery of the Wits or returne beyond the Seas it barreth the heires in taile presently whether the heire doth claime within 5. yeares or not if he claime by him that levied the fine A recovery barreth entailes and all remainders and reversions that should take place after the entailes saving where the King is giver of the entaile and keepeth the reversion to himselfe then neither the heire nor reversion is barred by the recovery And now by use recoveries are become common assurances against entailes remainders and reversions and the greatest security purchasers have for their money for a Fine will barr the heire in taile but not the remainders nor reversions Why recoveries doe barr remainders and reversions but a common recovery will bar them all and the reason why the heires remainders and reversions are thus barred is because in strict law the recompence adjudged against the cryor that was vouchee is to goe in succession of estate as the Land should have done and then it was not reason to allow the heire the liberty to keep the land it selfe and also to have recompence and therefore he loseth the Land and is to trust to the recompence Vpon Feoffements and recoveries the estate doth settle Vpon Fines Feoffements and recoveries the estate doth settle according to the intent of the parties as the use and intent of the parties is declared by word or writing before the act was done as for example if they make a writing that any of them shall levie a Fine make a Feoffement or suffer a common recovery to the other but the use and intent is that one shall have it for his life and after his decease a stranger to have it in taile and then a third in Fee-simple in this case the Law setteth an estate according to the use and intent declared And that by reason of the statute of 27 H. 8. of uses concerning the land in possession to him that hath interest in the use or intent of the fine Feoffement or recovery according to the use and intent of the parties The Statute of 27 H. 8. doth not passe land upon the payment of money without a Deed indented and inrolled Vpon this Statute is likewise grounded the fourth and the fifth of the sixt conveyances viz. Bargaines and Sales and Covenants to stand seised to uses for this statute wheresoever it findeth an use conjoyneth the possession to it and turneth it into like quality of state condition rent and the like as the use hath But the Parliament that made the statute did foresee that it would be mischievous that mens lands should suddenly upon the payment of a little money be taken from them peradventure in an Alehouse or a Tavern upon straineable advantages did therefore gravely provide another Act in the same Parliament that the Land upon payment of this money should not pass away unlesse there were a writing indented made between the said 2. parties and the said wrighting also within six months inrolled at some of the Courts of Westminster or in the Sessions Rolls in the Sheir where the land lieth The first conveyance by covenant is a conveyance to stand seised to uses it is in this sort A Covenant to stand seised to a use needeth no Inrolement as a Bargaine and Sale to an use doth so as it be to the use of Wife Child or Cousin or one he meaneth to marry a man that hath a wife and children brethen and kinsfolke may by writing under his hand and Seale agree that for him they or any of their heirs he wil stand seised of his lands to their uses either for life in taile or in Fee so as he shal see cause upon which agreement in writing there ariseth an equity or honesty that the land should
good of such Leases by the said Statute there are nine things necessary to be observed belonging to them all and some other to some of them in particular 1. The Lease must be made by Deed indented 2. He must be made to begin from the day of the making or from the making thereof 3. If there be an old Lease in being it must be surrendred or expired or ended within a year of the making of the Lease and the surrender must be absolute and not conditionall 4. There must not be a double Lease in being at one time As if a Lease for years be made according to the Statute he in the Reversion cannot expulse the Lessee and make a Lease for life or lives according to the Statute nor e converso for the words of the Statute be to make a Lease for three lives or one and twenty yeares so as the one or the other may be made and not both 5. It must not exceed three lives or one and twenty yeares from the making of it but it may be for a Lesser terme or fewer lives 6. It must be of Lands Tenements or Hereditaments maynorable or corporeall which are necessary to be letten and whereunto a Rent by Law may be reserved and not of things that lye in Grant as Advowsons Faires Markets Franchises and the like out whereof a Rent cannot be reserved 7. It must be of Lands or Tenements which have been most commonly letten by the space of twenty years next before the Lease made so as if it be letten for eleven yeares at one or severall times within those twenty yeares it is sufficient A Grant by Copy of Court Roll in fee for life or yeares is a good letting to farme within this Statute for he is but Tenant at will Secund. Cons Manerii And so it is of a Lease at will by the Common Law But those lettings to Farme must be made by some seised of an Estate of inheritance and not by a Guardian in Chivalry Tenant by Gurtesie Tenant in Dower or the like 8. That upon every such Lease there be reserved yearely during the said Lease due and payable to the Lessors their Heirs and Successors c. so much yearly Farme or Rent as hath been most accustomably yeilded and paid for the Land within twenty yeares before such Lease made Hereby first it appeareth that nothing can be demised by authority of this Act but that whereon a Rent may be lawfully reserved Secondly that where not only a yearly Rent was formerly reserved but things not annuall as Herriots or any Fine or other profit at or upon the death of the farmor yet if the yearly rent be reserved upon a Lease made by force of this Statute it sufficeth by the expresse words of the Act And if twenty acres of land have been accustomably letten and a Lease is made of these twenty and one acre which was not accustomably letten reserving the customably yearely rent and so much more as exceeds the value of the other acre this Lease is not warrantably letten and the rent issueth out of the whole If Tenant in taile let part of the land accustomably letten and reserve a rent pro rat or more this is good for that is in substance the accustomable Rent If two Coparceners be Tenant in taile of 20. acres every one of equall value and usually letten and they make partition so as each have ten acres they may make Leases of their severall parts each of them reserving the halfe of the accustomable rent If the usuall Rent had been payable at foure dayes or Feasts of the yeare yet if it be reserved yearly payable at one Feast it is sufficient for the words of the Statute be reserved yearely Ninthly nor to any Lease to be made without impeachment of Waste therefore if a Lease be made for life the Remainder for life c. this is not Warranted by the Statute because it is dispunishable for VVaste but if a Lease be made to one during three lives this is good for the Occupant if any happen shall be punished for VVaste the words of the Statute be seised in the right of his Church yet if a Bishop that is seised in jure Episcopatus A Deane of his sole possessions in jure Decanatus An Arch-deacon in jure Archidiaconatus A Prebendary and the life are within the Statute for every of them is generally seised in jure Ecclesiae All Grants Feoffments Leases and other Conveyances or Estates to any Master or Fellowes of a Colledge Deane and Chapiter Master or Guardian of an Hospitall Parson Vicar c. other then for one and twenty yeares or three lives from the time of such Lease or Grant reserving the accustomable yearely rent yearly payable shall be meerly void 18 Eliz cap. 11. All Leases made by such persons as 13 Eliz. cap. 10. before where another Lease for yeares is in being not to be expired surrendred or ended within three years next after the making of such new Lease shall be void All Bonds and Covenants for renewing or making of any Lease contrary hereunto or to 13 Eliz. cap. 10. before shall be void But a Parson and Vicar are excepted out of the Statute of 32 H. 8. and therefore if either of them make a Lease for three lives c. of lands usually letten reserving the usuall rent it must be also confirmed by the Patron and Ordinary because it is excepted out of 32 H. 8. and not restrained by the Statute of 1. or 13 Eliz. and what hath been said concerning a Lease for three lives doth hold for a Lease of one and twenty yeares Now to speak somewhat of the disabling Statutes of 1. and 13 Eliz. the words of the exception out of the restraint and disability of 1 Eliz. are Notes of things well and duty to be observed other then for the terme of one and twenty years or three lives from such time as any Grant or assurance shall be given whereupon the old and accustomed yearely rent or more shall be reserved And to that effect is the exception in the Statute of 13 Eliz. First it is to be understood that neither of these nor any other do in any sort alter or change the enabling Statute of 32 H. 8â— but leaveth it for a patterne in many things for Lease to be made for others Secondly it is to bee knowne that no lease made according to exceptation of 1 Eliz and 13. Eliz. and not warranted by the Statute of 32 H. 8. if it be made by a Bishop or any sole Corporation but it must be confirmed by the Deanes and Chapiters or others that have interest as hath been said in the case of the Parson and Vicar but examples do illustrate If a Bishop make a Lease for one and twenty yeares and all these yeares being spent saving three or more yet may the Bishop make a new Lease to another for one and twenty yeares to begin from the making
and if it be presented at the next court Ceaque use shall be admitted thereunto But if it be not presented at the next court according to the custome then the surrender becometh void and so it was clearly holden Pasch 14 Eliz. in the court of common Pleas. the Lessee afterwards taketh a Lease for twenty years upon condition that if he doth such an act then the Lease for twenty yeares shall be void and after the Lessee breakes the Condition by force whereof the second Lease is void yet the Lease for forty yeares is surrendred for the Condition was annexed to the Lease for twenty yeares but the Surrender was absolute So if a man make a Lease for forty years and the Lessor grants the Reversion to the Lessee upon Condition and after the Condition is broken the terme was absolutely surrendred And the diversity is when the Lessor grants the Reversion and when the Lessee grants or surrenders his Estates to the Lessor for a Condition to a Surrender may revest the particular Estate because the Surrender is conditionall But when the Lessor grants the Reversion to the Lessee upon Condition there the Condition is annexed to the Reversion and the Surrender absolute If Lessee for yeares accept a new Lease of his Lessor to begin presently or at a day to come that is a present surrender of the first Lease And if Lessee for forty yeares take a new Lease to him and his Son by Deed indented for twenty yeares by which Deed the Lessor covenanteth that if the Son dye within the terme that then the first Lease shall stand in his force the same Lease or any other thing notwithstanding although the Son dye within the said twenty yeares yet this Covenant shall not revive the first Lease And if a Lease be made for twenty yeares to begin at Michaelmas and after before Michaelmas the Lessee excepteth a new Lease of his Lessor of the same land by Deed indented for sixteen yeares the Lessee upon his entry at Michaelmas is but Termor for sixteen yeares and that is by reason of the Deed indented and the agreement which amounteth to a Grant of the first Lease c. for an interest of a terme may not be surrendred before that it be in possession nor the Lessee shall not have Ejectione firmae nor Action of Trespasse before he be in possession But he may forfeit or grant such interest of a terme yet some hold that such interest may by acceptance of a new Lease be surrendred very well And they take a diversity where the second Lease may determine before the beginning of the first then the acceptance of that is no Surrender otherwise it is if it containe a day after the beginning of the other then they say that it is a Surrender But it is a Principle that it behoveth that he that surrendreth be seised or possessed of the Estate and of the thing surrendred at the time of the surrender made for a surrender made by Tenant for life disseised is void for that he hath but a right at the time of the surrender the same Law of a surrender made by a Fome which hath title to Dower is void Also a man may not surrender a right to a terme and a man may not surrender that which he hath not as a terme which is to begin at a day to come nor a terme before that the Lessor which surrenders hath entred lawfully by force of his Lease for a Release made to such Lessee by the Lessor before the beginning and before the possession had of his Lease is void Also the Lessor remaineth possessed of the Demesne and hath not any reversion before that And in every surrender these foure things are to be considered and observed viz. Foure things to be observed in every surrender 1. It behoveth him that surrendreth to have in him the thing surrendred at the time 2. The surrender ought to be made of the thing leased for this word Surrender is of such effect to give againe and nothing may be given againe but that which was created before 3. It behoveth alwaies that there be a privity between him that surrendreth and him to whom the surrender is made which privity is defeated and destroyed by granting over of their Estates 4. And it behoveth also that he to whom the Surrender is made hath in him and in his right the immediate Reversion or Remainder of the thing at the time of the Surrender made and of such Estate so that the thing surrendred may draw therein for surrender made to him which hath but a right of Reversion as to the Disseisee or to Tenant in Law as to the Heire or to the Lord by Escheat before that they have entred or have seisin or possession in Deed or to the Discontinuee of Tenant in taile c. is a void surrender And note that there is a Surrender in Deed and a Surrender in Law of a terme for yeares Surrender in deed and Surrender in Law and therfore if Tenant for yeares and the Lessor make a Feoffment or Lease for life that shall be taken the Livery of the Lessor and the surrender of the Lessee for the terme thereby is extinct and yet there is not any word of surrender but it shall be so taken by the Judgment of Law which alwaies incline the words of the parties to the minds of the parties But if Tenant for life and his Lessor make a Feoffment in fee by Deed that is the Feoffment of Tenant for life and the Confirmation of the Lessor although there be not any word of Confirmation in the Deed and that shall not be taken to be a Surrender in Law But if Tenant for life speaketh that he agreeth or sheweth his contentment to enable him in the Reversion onely to make a Feoffment and Livery and Seisin to a stranger that is a Surrender in fait But if he surrender by word in another County that is not a Surrender untill he to whom it is made hath entred And it is to be thought that if Tenant for life take a new Estate of his Lessor for twenty yeares that this is a surrender in Law of the Lease for life for otherwise the second Lease was made to him when he was seised or possessed of the first Lease Surrender by expresse words Note that a Surrender by expresse words is where the Lessee saith to the Lessor that his will is that he shall have againe the land or that he will no longer occupy the same if the Lessor thereunto agree and enter that is a Surrender and else not But if Tenant for life waive the possession and the Lessor enter that is no Surrender In Chenies case it was resolved in Curia Hardorum 27 Eliz. that where he in Reversion enfeoffed his Lessee for yeares to the use of others that although the Lease be surrendred and extinguished by the Common Law yet by the saving of the Statute of 27 H.
Administration of the goods at this day to the Wife if she require it or children or next of kin if they refuse it as often they doe because the debts are greater then the estate will beare then some Creditors or some other will take it as the Bishops Officers shall think meet It groweth often in question what Bishop shall have the right of proving Wills and granting Administration of Goods In which Controversie the rule is thus That if the party dead had at the time of his death Bona notabilia in divers Diocesses of some reasonable value the Arch-bishop of the Province where he died is to have the approbation of his Will and grant the Administration of his Goods as the case falleth out otherwise the Bishop of the Diocesse is to do it If there be but one Executor made yet he may refuse the Executorship coming before the Bishop so that he hath not intermeddled with any of the Goods before or with receiving Debts or paying Legacies And if there be more Executors then one so many as list may refuse and if any one take it upon him the rest that did once refuse may when they will take it upon them no executor shal be further charged with Debts or legacies then the value of the goods come to his hands So that he foresee that he pay Debts upon Record Debts to the King Then upon Judgments Statutes Recognizances then Debts by Bond and Bill sealed Rent unpaid Servants Wages payment to head-workmen and lastly Shop-books and Contracts by word for if an Executor or Administrator pay Debts to others before to the King or Debts due by Bond before those due by Record or Debts by Shop-book and Contracts before those by Bond Arrearages of rent and Servants Wages he shall pay the same over againe to these others in the said degrees But yet the law giveth them choice that where divers have debts due in equall degree of record or specialty he may pay which of them he will before any Suit be brought against him but if Suit be brought he must first pay them that get Judgment against him Any one Executor may convey the Goods or release Debts without his Companion and any one by himselfe may do as much as all together But one mans releasing of Debts or selling of Goods shall not charge the other to pay so much of the Goods if there be not enough to pay debts but it shall charge the party himself that did so release or convey But it is not so with Administrators for they have but one Authority given them by the Bishop over the Goods which Authority being given to many is to be executed by all of them joyned together And if an Executor dye making an Executor the second Executor is Executor to the first Testator But if an Administrator die intestate then his Administrator shall not be Executor to the first But in that case the Bishop whom we call the Ordinarie is to commit the Administration of the first Testators Goods to his Wife or next of kin as if he had died intestate Alwaies provided that that which the Executor did in his life time is to be allowed for good And so if an Administrator die and make his Executor the Executor of the Administrator shall not be Executor to the first Intestate but the Ordinarie must new commit the Administration of the Goods of the first Intestate Again if the Exetutor or Administrator pay Debts or Funeralls or Legacies of his owne money he may retaine so much of the Goods in kind of the Testator or Intestate and shall have property of it in kind Legacy PRoperty by legacie is where a man maketh a Will and Executors and giveth legacies he or they to whom the Legacies are given must have the assent of the Executors or of one of them to have his Legacy and the property of that Lease or other Goods bequeathed unto him is said to be in him but he may not enter nor take his legacy without the assent of the Executors or of one of them because the Executors are charged to pay debts before legacies And if one of them assent to pay legacies he shall pay the value thereof of his own purse But this is to be understood by debts of Record to the King or by Bill and Bond sealed or Arrearages of Rent or Servants or Work-mens Wages and not debts of Shop-books or Bills unsealed or Contract by word for before them legacies are to be paid And if the Executors doubt that they shall not have enough to pay every legacy they may pay which they please first but they may not sell any speciall legacie which they will to pay debts or a lease of goods to pay a money legacy But they may sell any legacie which they will to pay debts if they have not enough besides If a man make a Will and make no Executor or if the Executors refuse the Ordinary is to commit Administration cum Testamento annexo and take Bonds of the Administrators to performe the Will and he is to do it in such sort as the Executor should have done if he had been named A Lease was made to one William Cecill for the terme of one and forty yeares if he so long live and if he dye within the terme aforesaid Remainder void fol. 56. then E. the wife of the said W. should have and hold all the said Premisses for the residue of the said terme if she so long live and if she die within the same terme then W. Cecill Son of the said W. Cecill should have and hold all the Premisses for the residue of the terme aforesaid unexpired By Catelin and Dier the Remainders are all void because that the terme is determinable on the life of W. Cecill so the residue of the said terme may not remaine Dyer fol. 253. Releases AS a Release of Suits is more large and beneficiall then a Release of Querela's or of Actions so a Release of demands is more large and beneficial then any of them for thereby is released all that which are released by the others and more By a release of all Demands all Free-holds and Inheritances Executory are released as Rents and the like by a Release of all Demands all Executions are released by a Release of all Demands to the Disseisor the right of entry to the land and all which is contained within it is released So it is resolved in Chamies case 34 H. 8 titulo Release that he which releaseth all Demands excludeth himself of all Actions Entries and Seisures Littleton holdeth cap. Garranties 80. 170. That if Tenant in taile enfeoff his Uncle who enfeoffs another in fee with Warranty if after the Feoffee by his Deed release to his Uncle all manner of Warranties or all manner of Covenants reall or all manner of Demands by such Release the Warranty which is a Covenant reall and executory is extinct And the reason of all that was
of the Indenture or from the day of the date or from the day of the making or from the day of the sealing and delivery such leases are meerly void for the date is excluded and the lessee may not enter untill the morrow for when a man makes a lease for life to commence at a day to come he may not make present livery to a future estate and therfore in such case nothing passeth and Livery or Attornment afterwards will never make a void Grant to be good Coke 5. pars fol. 94. 2. pars fol. 55. If a Lease be made for years or at Will by Deed and Livery and Seisin be made to the Lessee yet he is but Tenant for years or Tenant at Will according to the limitation of the Deed and not Tenant for life by force of the livery But if a lease be made for years the Remainder to a stranger for life and livery is made to the Lessee who enters this livery shall vest the Remainder in the stranger and if the Lessee enter by force of his lease before livery be made unto him then the Remainder is void Condition where an enâ—ry is reserved to a stranger vide casus tertium prox sequent A man enfeoffeth one upon condition that he shall pay ten pounds to B. and upon default that B. shall enter now if the rent be not paid the Feoffee may enter in Law and Conscience and not B. for he is a stranger to the Condition and B. hath no remedy in Conscience to have the land And when the Feoffment is made upon Condition although it doth not speak that for default of payment he may re-enter yet that is implied in the word Condition and as to the words that B. shall enter by default of payment they are void words Doctor Student fol. 93. Condition for non-payment of rent and then an Assise is brought or a Distress taken If a Condition be broken for non-payment of rent yet if the Feoffor bring an Assise for rent due at that time he shall never enter for the Condition broken because he affirmeth the rent to have continuance and whereby waiveth the condition and so it is if the rent had had a clause of Distresse annexed unto it if the Feoffor had distrained for the rent for non-payment whereof the condition was broken he should never enter for the condition broken but he may receive that rent and acquit the same and yet enter for the condition broken Acceptance of rent barreth a re-entry But if he accept a rent due at another day after he shall not enter for the condition broken because he thereby affirmeth the lease to have continuance Coke Lit. fol. 211. b. If a man enfeoff one by Indenture by which it is covenanted and agreed that the Feoffee shall pay to a stranger and his Heires ten pounds per annum at a certaine day and if he faile that the stranger and his Heires may enter in that case if the Feoffee doth not pay it the stranger shall have use of the land in conscience and not by the common law and shall have a Subpaena to constraine the Feoffee to make an estate unto him But in the said case if it had been upon condition that a stranger may enter for non-payment of the rent there the Feoffor himself shall enter and not the stranger for none may enter for a condition annexed to Fee but for lives and when the Feoffor hath entred he is not holden to convey the land to a stranger that ought to have the Rent Doctor Student 100. 101. In Mary Portingtons case Coke 10. pars fol. 39. Incidents to an estate taile It was observed and agreed for Law that to an Estate-taile there are three manner of incidents some by the common Law some by Act of Parliament and some by custome by the common law they are such which are not restrained by the Statute and may not be restrained by any condition 22 E. 3. 17. as Dower and Tenant by the curtesie after issue are incident to an Estate taile and may not be restrained by any condition An Estate taile cannot be restrained by any condition or limitation vide Coke 9. pars fol. 128. 6. pars Sir Anth. Mildmaies case Recovery fraudulent Also the Estate of him and Tenant in taile after possibility are dispunishable for Waste And collaterall Warranty is a bar to the Estate-taile and so is a common recovery also and none of these may be restrained by any condition or limitation by the Statute law as to make leases by the Statute of 32 H. 8. cap. 36. and to levie a Fine by the Statute 4 H. 7 cap. 24. and 33 H. 8. cap. 36. to bar Issues and none of those which are incidents to that Statute by act of Parliament may be restrained by condition for when a man maketh a Gift in taile he tacire doth give these incidents thereunto And therefore to restraine them by condition or limitation shall be repugnant And as to the case upon the Statute of 11 H. 7. it was answered that when the husband for advancement of the wife with competent Joynture and preferment of their Heires of their two bodies engendred hath caused an estate to be made to himself and to his wife in tail and after the deaths of the husband the wives to disinherit the issues of their former husbands suffer recoveries and convey the land to strangers of the bloud of the husband such recovery was worthy by the Parliament to be noted with the marke to be suffered by Covin And the act of the wife either when she is sole or with her and her second husband is so odious that a recovery had upon a good title against them by Covin is made void by the said Act. Fraud So in the said Acts of 32. H 8. and 14. Eliz. when a common recovery was had against Tenant for life to the prejudice of those who had the inheritance that may be well termed covenous and by collusion and yet in the same case when tenant for life the remainder to A. in taile the remainder to B. in taile c. with divers remainders over and Tenant for life suffereth a common recovery wherin he voucheth A. and he the common vouchee that shall bind all the other remainders for no Covin or collusion may bee supposed when the next in remainder in taile which hath the immediate inheritance is vouchee as it was adjudged in Jennings case Fraudulent conveyances to defraud purchasors Vide plus de hoc fo 18. 27 E. cap. 4. every Conveyance Grant Charge Lease Estate incumbrance and limitation of use of Lands Tenements or Hereditaments made since the beginning of her Majesties Raigne or hereafter to be made for the defrauding of Purchasors of the Land it selfe or any part or profit out of it shall be void against the person so purchasing for money or other good consideration and against all
said to be a rent may in any wise be reserved to a stranger which is not privie to the Lease or Deed. Also nothing which goeth in privity as conditions entries or re-entries for conditions or such like which are given by the law to privies onely may not be limited or granted to others which are strangers by the common Law and therefore if a Lease bee made for yeares rendant rent and upon condition of non payment that it shall remaine to a stranger and livery and seisin is made accordingly that is a void a remainder which commenceth upon a repugnancy precedent and which dependeth upon a condition which goeth in destruction of the perticular estate and especially where such a remainder is created by lease or grant Vpon and by the limitation of a devise or limitation of an use a remainder may commence upon a condition that goeth to the destruction of the perticular estate But by limitation of a devise or limitation of use such a remainder is good as a Feoffement made to the use of I. S. for yeares and upon non payment by him of such a summe that it shall remaine to I. D. for life c. this is a good remainder so it is where the remainder is created by the limitation of a last Will. As if a man devise his land to his wife for her life upon condition that if she marry that the Land shall remaine to F. M. in taile that is a good remainder for the construction of this devise is to make the same condition to be a limitation and not any condition And upon a limitation or determination of a perticular estate which is certaine or not uncertaine a remainder clearely may well depend As if a Lease be made for life upon condition that if the Lessee die it shall remaine to a stranger that is a good remainder A remainâ— by a limitation of an use may commence or depend upon any condition and one feesimple may depend upon another by way of use Where one hath an Office of charge as to be Steward Officers Stewards Bayliffs c. Bayliffe Parker c. the grantor may out them and pay their Fee if the Fee bee only certaine but not where they have profits of Court 34 H. 8. titulo 243 Kitchin fo 143 a. Stewardship Parker It was agreed that the Owner of Parke may dispark the Park notwithstanding a grant of the said Office the Office of Steward was granted to one for life with a Fee of forty shillings for the execution thereof if the Lord discharge him yet hee shall have the Fee But if the grant be to him to be taken out of the issues and profits of the Court the Lord may not discharge him 1 S. E. 4. 8. And if a Parker for life which hath a Fee for the exercising of the Office is discharged of his Office yet he shall have the Fee for it is but an Office of charge but if the Parker hath the Office for life and hath Windfalls Deer-skins and such like he may not be expulsed from his Office and of such Office hee may have an Affize Brook 134. 38 H. 8. whereby I conceive that where the Steward hath a cetaine Fee for execution of his Office yet if he hath other profit incident to his Office as Fees for entries of Plaints making of grants by Copie taking of surrenders and admittances of Copy tenants and such like the Lord cannot remove the Steward Officers that have no other profits but a Collaterall certaine fee there the grantor may discharge him As to be a Bayliffe Receivor Surveior Auditor or the like the exercise whereof is but labour and charge to him but hee must have his Fee for the maine rule of the Law is that no man can frustrate or derogate from his owne grant to the prejuice of the Grantee And where albeit the Grantee hath no other profit but his Fee yet that fee is to be taken out of the profits appertaining to the Lord within his Office for there the grantor cannot discharge him of his service or attendance for that may turne to the prejudice of the grantee if the Grantor will not grant the Office at all but in all cases where the Officer relinquisheth his Office and refuseth to attend he loseth his Office Fee profits and all There are three causes of the forfeiture of an Office as the Office of a Steward Parker Wood-ward and such like viz. Abuser non-user and refuser vide Coke 8 pars the County of Rutlands Case fo 55. 9 pars County of Salops Case fo 49. for in all cases when an Officer upon request doth refuse to execute his Office that is a forfeiture as if the Steward of a Mannor upon the Lords request to hold a Court refuse to do it this is a forfeiture There is another diversity where the Grantee besides his certaine Fee hath profits and availes besides his Office there the Grantor cannot discharge him of his service or attendance as if a man doth grant to another the Office of the steward-ship of his Court or of his Mannors with a certaine fee the Grantor cannot discharge him of his Office service or attendance because he hath other profits and fees belonging to his Office Parker If a Parker kill any deere without warrant or cut any Trees Woods or Vnder-woods and convert them to his owne use it is a forfeitute of his Office Parker for life may not assigne his Office to another because it is an Office of trust but otherwise it is if hee bee Parker in Fee Plow fo 379. and so for a Steward as I conceive without words in the Patent to make a deputy There is a condition in Law annexed to every Office of trust as to the Office of Steward or Parker and such like viz. that the Parker shall keep well the game and shall do all things pertaining to the Office of Parker and so for steward c. A parker kept not his Parke such a day by reason whereof the Deere were killed by unknowne persons this is a forfeiture of his Office A Parker is not holden to keep his Parke in Festivall dayes for he ought to be at divine service nor in the night nor to keep the Parke with 6 or 8. men vide 2 H. 7. 8. that in Assize of Office it was said by the reporter and not denied that if the Office of Parker be granted if he doth not keep the Parke or if he destroy the Deer that is a forfeiture of his Office if a Forrester or Parker cut or fall Woods unlesse it be for necessary bruse for the Deere this is a forfeiture of their Offices for the destruction of vert is the destruction of venison If a man hath a lease for yeares Grants in toto and grants to another all his tearme that shall bee to come at the time of his death that grant is void because he would retaine the terme
during his life If a rent be granted to one for life by deed and willeth that the Grantee and his heires distraine in the Lands charged for the same rent the grantee hath in this case fee-simple in the rent and not estate for life for the distresse is the creation of the rent-charge and therefore the limitation and creation of the rent-charge shall enure according to the effect and limitation of the distresse for therein he retaineth it for a terme which is as long as he hath in the Land and therefore hath not any certainty that terme will ever commence and therefore the grant void And where Lessee for yeares without any habendum granteth to another all his tearme which shall be to come at the time of his death shall be all void A Termor reciting by Indenture his terme and lease granted all his terme estate and interest to another habendum sibi assign suis immediate post mortem ipsius the Grantor and the case was ruled and adjudged that the habendum was void and the premises of the grant good to make the whole terme to passe forthwith Dier fo 272. If I have a rent in Fee if I grant it to another and stay there this is a grant for life but if I goe further and say habendum after the death of I. S. there all shall be void vide fo 2. If tenant for yeares of land grant out of that a rent-charge to another for the life of the Grantee the grantee shall not have a state of Frank-tenement because he cannot have a stare of Frank-tenement derived out of a Chattel reall but he shall have the rent during all the yeares if the Grantee so long shall live Plowden fo 525. If I have a rent in fee and grant it to another post mortem I. S. this grant is void for the nature of a grant is that the thing ought to passe forthwith If a man make a lease for yeares and afterwards the lessor grants a rent charge out of the Land that grant shall charge the reversion And this proveth that the Land and the reversion are nor two distinct things but that in the reversion the Land is contained Plowden fo 173. The Abbot leased land for life and afterward leased the reversion to have the Land from Michaelmas next after the first Lease ended by death surrender or forfeiture for 21. yeares this is a good Lease Plowden fo 146. A grant of a reversion Habendum the said reversion after the end and expiration of the Tenant for life Attornement needdes for sixty yeares this is a good grant without Attornement If I make a Lease to one for life and afterwards I grant the reversion to another habendum from the Feast of St. Michael next ensuing to him and his heires this grant is void because that no franke-tenement be it in possession reversion or remainder may be limited to commence at a day to come If I have a rent in Fee I may not grant it to commence in futuro or at a day to come but if I have land I may grant a new rent out of it to commence at a day to come for there I shall not have any particular estate in the meane for it was not in esse before but doth commence of new and therefore I may appoint it to commence when I will Pertinentiis A man makes a Feoffement of a house cum pertinent nothing passeth by these words cum pertinentiis but the Garden Curtilage and close adjoyning to the house and whereupon the house is built and no other Land though other Lands have been occupied with the house A man leased a house cum pertin no land passeth by these word but otherwise it is where a man leaseth a house cum omnibus terris eidem partin there the lands therewithall used doe passe If a man makes a Feoffement of a house ac omnes terras tenementa heriditamenta eidem messuagio pertin aut cum eodem occupata locata aut dimissa existent hereby the land used with the house doth pass Tenant in taile and the Lessee shall acknowledge the Tenements to be the right of one A stranger Lease by fine to bind Tenant in Taile and his issue and that A. shall grant and render by the same fine to the Lessee for 60. yeares the remainder to the Lessor and his heires and it was with proclamations which shall bind the taile after proclamation made If Tenant in taile make a Feoffement and a common recovery is had against the Feoffee Recovery the best to barr estates taile and remainders who voucheth tenant for taile who voucheth over c. there the tail shall be barred because that he when he commeth in as vouchee shall bee in the degree of tenent in taile and the recompence in value which he hath or may have shall goe in taile and therefore such manner of recovery is best and the surest way to barr the taile and all the remainders and the reversion also If A. be tenant in taile the remainder to B. in taile the remainder to C. in taile the remainder to B. in Fee A makes a Feoffement the Feoffees suffer a common recovery wherein B. is vouched he over the common vouchee In this case A. is not bound but B. and all the remainders over are barred For although that by the Feoffment of A. all the remainders were discontinued and the estates that B.C.D. had converted into meere rights and though the remainders may never be remitted before the estate taile in possession be recontinued yet in case of a common recovery which is the common assurance of the Land he that commeth in as vouchee shall bee in judgement of Law in privity of estate which he over had though the precedent estate wherupon the state of the vouchee dependeth be devested or discontinued Coke 3 pars fo 60. Tenement is a large word Tenement and Hereditament to passe not onely lands and other inheritances which are holden but also Officers Rents Commons Profits apprender our of lands and the like wherein a man hath any Frankenement and whereof he is seised ut de libero tenemento but an Hereditament is the largest word of all in that kind for whatsoever may be inherited is an hereditant be it corporeall or incorporeall reall or personall or mixt Vesturam terrae If a man hath twenty Acres of Lands and by Deed granteth to another and his heires Vesturam terrae and maketh Livery secundum formam chartae the Land it selfe shall not passe because he hath a particular right in the land for thereby he shall not have the houses timber trees and other reall things parcell of the inheritance but he shall have the vesture of the Land that is the Corne Grasse and Vnder-wood Sweepage and the like and shall have trespasse quare clausam fregit Herbagium terrae If a man grant herbagium terrae he hath a
like particular right in the Land and shall have quare clausuam fregit but by grant thereof and Livery made the soile shall not passe as is abovesaid Herbagium Boscorum If a man let to B. the Herbage of his Woods and after grant all his lands in tenure possession or occupation of B. the Woods shall passe for B. hath a particular possession and occupation which is sufficient in this case and so it was resolved Seperal Pischar So if a man seised of a River and by Deed doe grant Seperal pischar in the same and maketh Livery and Seisin secundum for chartae neither the soile nor water doth passe for the grantor may take water there and if the River become dry hee may take the benefit of the soile for there passeth to the Grantee but a particular right and the Livery being made secundum formam chartae cannot enlarge the grant Aquam suaem If a man grant aquam suam the soile passeth not but the fishing within the water passeth Profits of Land But if a man seised of Lands in fee by his deed granteth to another the profits of his Lands Habendum to him and his heires and maketh Livery secundum form chartae the whole land it selfe doth passe for what is the Land but the profits thereof for thereby Vesture Herbage Trees Mines and all whatsoever parcell of that land doth passe If the Lessor by his Deed license the Lessee for life or years which is restrained by Condition not to alien without license to alien License to alien may not be countermanded and the Lessor dieth before the Lessee doth alien yet is his death no Countermand of the license but that he may alien for the License exempteth the Lessee out of the penalty of the Condition and it was executed on the part of the Lessor as much as might he And so it was resolved Mich. 3 Jacobi in Communi Banco Q If a man make a Lease to another for two and twenty years if the Lessee so long live and the Lessor and Lessee joyne in Grant by Deed of the terme to another and after the Lessee dieth within the terme the Grantee shall enjoy the land during the residue of the terme absolutely A man leased a house by Indenture for years Covenants the Lessee for him and his Executors did covenant and grant with the Lessor to repair the house at all times necessary The Lessee assigned it over to Hide who suffered it to decay the Lessor brought an Action of Covenant against the Assignee and it was adjudged by all the Court that the Action of Covenant lieth although the Lessor hath not covenanted for his Assignes for such covenant that extendeth to the supportation of the thing demised is Quodam modo appurtenant thereunto And in respect that the Lessee hath taken upon him to bear the charges of reparations the yearly rent was the lesser which trencheth to the Assignee Et qui sentit commodum sentire debet onus if the Lessee covenant to discharge the Lessor De omnibus onerious ordinariis extraordinariis and to repair the houses an Action lieth against the Assignee Coke 5. pars fol. 27. S. did covenant for him his Executors and Administrators with the Lessor that he his Executors Administrators or Assignes would build a Brick-wall upon parcell of the land demised S. assigned over his Terme to I. and for the not making of the Brick-wall the Lessor brought an Action of Covenant against the Assignee And thus it was agreed per totam Curiam 1. When the Covenant extendeth to a thing in esse parcell of the Demise the thing to be done by force of the Covenant is quodammodo annexed and appendant to the thing demised and shall remain with the Land and shall bind the Assignee although he be not bound by express words But when the Covenant extendeth to a thing which hath no essence at the time of the Demise made that may not be appurtenant nor annexed to the thing which hath not essence As if Lessee covenant to repaire the houses to him demised during the terme that is parcell of the Contract and extendeth to the supportation of the thing demised and therefore is quodammodo annexed and appurtenant to the house and shall bind the Assignee although he be not bound expresly by the Covenant But in the case at the Bar the Covenant concerned a thing which was not in esse at the time of the Demise made but to be newly made afterward and therefore shall bind the Covenantor his Executors or Administrators and not the Assignee for the Law will not annex the Covenant to a thing which hath not essence 2. It was resolved that in this case that if the Lessee had covenanted for him and his Assignes that they should make a new Wall upon any part of the thing demised that that shall bind the Assignee for although the Covenant extend to a thing to be newly made yet that is to be done upon the thing demised and the Assignee is to take the benefit thereof and therefore shall bind the Assignee by express words But although the Covenant be for him and his assignes yet if the thing to be made or done be meerly collaterall to the land and doth not touch or concern the thing demised in any sort the assignee shall not be charged as if the Lessee covenant for him and his assignes to build a house upon the land of the Lessor which is not any parcell of the Demise or to pay any collaterall summe to the Lessor or to a stranger that shall not bind the assignee because it is meer collaterall and no manner toucheth or concerneth the thing which was demised or which is assigned over and therefore in such case the assignee of the thing demised may not be charged with that more then any stranger 3. It was resolved that if a man demise Sheep or ther stock of Cattell or any other Goods personall for any time and the Lessee covenant for him and his Assignes at the end of the time to deliver such Cattell or Goods as good as the things demised were or such price for them And the Lessee assigne the Sheep over this Covenant shall not bind the Assignee for that is not but a personall contract and wanteth such privity as is between the Lessor and the Lessee and his Assignes of the Land in respect of the reversion But in case of a Lease of Goods personall there is not any privity nor any reversion but meerly a thing in action in the personalty which may not bind any but the Covenantor his Executors or Administrators which represent him the same Law if a man devise a Mease and Land for years with a stock or summe of money rendant rent and the Lessee doth covenant for him his Executors Administrators and Assignes to deliver the stock or summe of money at the end of the terme yet the Assignee shall not
it is if a man make a Feoffment in Fee upon condition that the Feoffee shall not take the profits of the Lands this condition is repugnant and against law and the estate is absolute But a Bond with condition that the Feoffee shall not take the profits is good If a man bee bound with a condition to enfeoffe his wife the condition is repugnant void and against law because it is against a Maxime in Law and yet the Bond is good Deeds suspitions to be forged Yet before anno 13 H. 8. the Deed do stile the King Defender of the Faith or Supream head before the 20. H. 8. such a Deed is a forged Deed. King H. 8. used not the stile of Supreame head in his Charters till 22. of his Raigne nor King of Ireland before 33. of his Raigne New Littleton fo 7. Age to bind man or woman 21. yeares is the full age for man or woman to make good any act they doe 14. their age of discretion and therefore that is the competent age to bind a man in matter of marriage 12. to bind a woman and 9. to deserve her Dower Remainder No remainder may commence upon any repugnancy or impossibility precedent nor upon any condition that goeth to the destruction of the particular estate for conditions alway enure in a privity so that none shall take advantage of conditions but those which are privies for none shall enter for a condition broken but onely the Feoffor Donor Lessor or their heires and as none shall avoid an estate formerly made by the Breach of a condition but onely the privies so none shall take a new estate by performance of a condition but onely the privies Generall Livery and speciall Livery the difference A generall Livery hath two properties first it is full of charge to the heire for he must find an Office in every County where he hath Land or else he cannot sue a generall Livery and he must sue out his Writ of aetate probanda The second property is it is full of danger first it concludeth the heir for ever after to deny any tenure found in the Office Secondly if Livery be not sued of all and of every parcell which the King ought to have whether it be found in the Office or not found the Livery is void and the King may reseise the Land and be answered of the meane profits so it is if the Office be insufficient or the process wherof the Livery was made be insufficient or the like the King shall re-seise Therefore for the ease of the heire and for avoiding such danger the heire for the most part sueth out a speciall Livery which containeth a beneficiall pardon and saveth the said charges and preventeth the said conclusion and other dangers which being of grace and not of right as the generall Livery is the King may justly take more for a speciall Livery then for a generall but ever with such moderation as the heire may ever goe cheerefully through with it 23 Eliz. 77.28 H. 8. One Mr. Shotbolt was bound in an obligation to one Hickman and in the Obligation he was named John Shotbolt which was mistaken but Mr. Shotbolt well perceiving his misnaming sealed and delivered the Obligation as his Deed and in Debt brought upon this Obligation against him by the name of William Shotbolt alias dictus Johannes Shotbolt he pleaded non est factum and this speciall matter was found by verdict at Guild-hall London and whether he should be charged by this Obligation and plea that was the doubt and the Postea was speciall ut supra and by the opinion of the Justices of the Bench the plantiff shall not recover upon this Verdict but it had been better for him to have brought the Action by the name of John Shotbolt as he is named in the Obligation and then if he appeared therunto and pleaded ut supra non est sactum he should have been concluded by the Obligation vâ—… 3 H. 6. 34 H. 6. 5 E. 4. this matter well debated similis casus inter Turpin Jaxon viz Ann for Agraes and she sued by her right name nuper dicta Anna. Hillar 18. Rotulo 738. Dier fo 279. An obligation made beyond the Seas may be sued here in England in what place the party will what if it beare date Bourdeaux in France where shall it be sued and answer was made that it may be alleadged in quodam loco vocat Bourdiaux in France in â—slington in the County of Midd. and there it shall be tryed for whether there be such a place in Islington in the County of Midd. or not is not traversable in that case and so the varieties of opinions in our Bookes well reconciled New Littleton 361. b. 6. pars fo 47. Dondales case 32 H. 6. 25. 48. E. 3. 3. 11 H. 6. 16. Mise Mise is a word of Act appropriated onely to a Writ of right so called because both parties have put themselves upon the meere right to be tried by grand Assize or by Battel so as that which in all other actions are called an issue in a Writ of right in that Case is called a Mise A yeare how into how many parts it is divided A quarter of a yeare is 91 daies halfe a yeare is 182 daies a yeare is 365 daies and to the 6. houres the Law hath no regard Diers Abridgement fo 89. this is according to the computation in the Kalender And when a Patron is to present hee hath six months to present according to the computation of the Kalender which is 182. daies before any Lapse shall accrue But a Month according to the computation of the Law for reservation of rents and re-entries for non payment of Rent c. doth account 28. daies to the Month and no more Kings-Silver Note that the fine pro licencia concordandi is that which is called the Kings-Silver or post fine And if the Fine in the Hamper which is commonly endorsed upon the writ of Covenant be 26. shillings 8. pence then alwayes the Kings-Silver or post-fine is halfe as much more as the Fine in the Hamper Suspension If a Lease be made of 10. Acres of Land for yeares reserving rent and after the Lessor enters in 2. Acres the entire rent is thereby suspended for a contract which is entire may not be apportioned but being suspended in part it is suspended in all being destroyed in part is destroyed in the whole and especially as to the Act of the Lessor which doth suspend or extinguish it Suspension A man gives Land in taile or leaseth it for life or yeares rendant rent with condition for default of payment to re-enter there if the Lessee lease part of the Land to the Donor or Lessor or if the Donor or Lessor enter in part of the land he may not re-enter for rent behind after for the condition is suspended in all and a condition
been usually lopt Tythes shall not be paid for them for as the Law priviledgeth the body of the Tree being parcell of the inheritance so doth it priviledge the Branches also so if a man cut his timber trees Tythes shall not be paid for the boughs or sprouts which are going out of the roots or stowles in respect that the root is parcell of the inheritance so if a timber tree become arda sicca non portans folia nec fructus in aestate nec existens macorin and the owner cut him no Tythes shall be paid therof in respect of the inheritance which was once in him so for the barke of Oakes being timber no tythes shall be paid but for Acornes tythe shall be paid because that groweth yearely Inheritance doth passe without livery and seisin by a grant If I grant all my Trees within the Mannor of G. to one and his heires the Grantee shall have inheritance in them without any Livery and Seisin Coke Barringtons case S. pars fo 137. And so if I grant to you my Trees in my Wood you may come with Waines or Carts over my Land to carry them Coke 11. pars fo 53. Vsery Clayton requested Reynolds to lend him 30. l. and upon communication between them Reynolds lent Claton 30. pound the sixth day of December 34 Eliz. unto the second of June next following to pay unto him for the principall and Lone thereof 33 l. upon the said second of June if the sonne of Reynolds were then alive and if he died before the day that then he should pay unto him twenty seven pounds which was 3 l. under the principals this is by the resolution of the whole Court was usery within the letter of the Statute Coke 5. pars fo 70. It was agreed between T. W. and A. G that A. Boortons case Coke 5. pars fo 69. should lend to T. W. 100 l. and that the said T. W. should grant to the said A. and his heires a rent which was in esse of 20 l. upon a condition that the said A. should lend to the said T. W. 100 l. as aforesaid And that the said T. should grant to the said A. and his heires the rent of 20 l. upon this condition that if the said T. should pay to the said A. 100 l s. the 17. of July 1580. which was a full yeare before the contract made that then the rent should cease and hereupon the money was received and the rent granted accordingly This was not within the statute of usury because nothing was to be paid by T. W. the Grantor within a yeare and a quarter after the Grant made for within the 17. day of Iuly 1579. and Christmas 1580. at which time a distres was taken for the rent no rent was limitted to be paid and if the Grantor had paid the 100 l. the 17. of July 1580. the rent had ceased without paying any thing for the same 100 l. So the whole Court adjudged that it was a plaine bargaine and conditionall purchase of such a rent and no usery But it was resolved by the Court that if it had been agreed between the Grantor and the Grantee that notwithstanding such power of redemption that the 100 pounds should not have been paid at the day and that the clause of redemption was inserted to make an evasion out of the Statute then it had been an usurious bargaine and contract within the Statute Coke 3. pars fo 69. Where a man for 100 l. selleth his land upon condition that if the Vendor or his heire repay the sum citra festum Pasch or such like then next comming that then he may re-enter that is not usury for he may repay it the morrow after or at any time before Pascâ—… And therefore he hath not any gaine certaine to receive any profit of the land And likewise where any Defeasance or Statute is made for the repayment citra tale festum But it is otherwise if the condition be that if the said Vendor repay such a day such a yeare or two yeares after this is usury for he is sure to have the Land and the rents land or profits that yeare or these two yeares And so when a Defeasance or Statute is made for the repayment at such a feast which is a yeare or two years after B. Usury 1. If a man morgage his Land upon Defeasance of repayment to re-enter by which Indenture the Vendee leaseth the same land to the Vendor for yeares rendant rent there if there bee a condition in the Lease that if the Vendor repay the same before such a day that then the lease shall be void that is not usury But otherwise it is if he be to pay it such a day certaine or such a yeare or more after B. usury 2. 32 H. 8. Inheritances lineall and collaterall Lands purchased may goe to the heires both of the part of the father and mother of the Purchasor unlesse it be once attached in the heire of the part of the Father for the heir of the part of the Mother shall never have it because they are not of blood to him that was last seised But Lands discended goeth onely to the heire of that part from whence it discends as if from the Father who did purchase it then it may goe to the heirs of the part of the mother of the same father but not to the heirs of the part of the sons mother for though they be of blood to the sonne that was last seised yet they are not of blood to the father which was the first purchasor And if a man Purchase Lands in Fee-simple and die without issue he which is next Cousin collaterall of the whole bloud how far soever he be from him in degree may inherit and have the Land as heire to him These words do intend that where a man doth purchase lands and dieth without issue and having neither brother nor sister then his next Cosin collaterall shall inherit So as there is implied a division of Heires viz lineall who shall ever first inherit and collaterall who are to inherit in default of lineal for in discent it is a Maxime in Law Quod linea recta semper praefertur transversali Lineall discent is conveyed downward in a right line as from the Grandfather to the Father from the Father to the Son and so downward collaterall discent is derived from the side of the lineall as Granfathers Brother Fathers Brother c. Vpon this word Next I put this case One hath issue two Sons A. and B. and dieth B. hath two Sons C. and D. and dieth C. the eldest Son hath issue and dieth A. purchaseth lands in Fee-simple and dieth without issue D. is his next Cosin and yet shall not inherit but the issue of C. for he that is inheritable is accounted in Law next of blood And therefore here is understood a division of next viz. next jure representationis and
elder son was in possession of the dignity no more then of his blood for the dignity is inherent to his blood and neither by his own act nor by the act of another hath he gained more actuall possession then by the Law descended to him Coke 3. pars fol. 42. Actuall possession quid Possession in Law quid Here 's jure proprietatis heres jure representationis An actuall possession is when a man entreth in Deed into lands to him discended A possession in Law is when lands be discended to a man and he hath not yet really entred into them nor hath seisin of the rents reserved upon any estate made for life by him from whom he claimeth Every one that is heire unto another is as the eldest Son shall inherit onely before all his brothers Aut heres jure representationis as where the eldest Son dieth in the life of his Father his issue shall inherit before the youngest Son for although the youngest Son be magis propinquus yet jure representationis the issue of the eldest Son shall inherit for he doth represent the person of his Father And even as none may be procreate but of one Father and one Mother and ought to have in him two bloods viz. the blood of his Father and the blood of his Mother those two bloods commix in him by lawfull marriage doth constitute and make him heire So none may be heire to any one unless he hath in him both the bloods of him to whom he shall make himself heire And therefore the heire of the half blood shall not inherit because he wanteth one of the bloods that should make him inheritable for as in this case the blood of the Father and the blood of the Mother make but one blood inheritable and both are necessary to the procreation of an heire therefore desiciente uno non potest esse haeres And this is the reason of the Maxime of Possessio fratris de feodi simplex facis sororem esse haeredem Co. 3. pars Ratcliffs case fo 37. If a man be attainted of felony by judgment the heires begotten after the attainder are foreclosed from all manner of hereditary Succession as well on the part of the Mother as on the part of the Father And Britton gave this reason because the Son procreate after the judgment had not two bloods inheritable in him for at the time of his birth the blood of his Father was corrupt for ex leproso parente leprosus generatur filius And when the Father is attainted of felony the blood in respect of what it shall be inheritable being corrupt the Son as like to it hath not but half blood viz. the blood of the Mother in him without corruption And therefore he holdeth that such a Son shall not inherit his Mother And with him Bracton accordeth for saith he Non valebit felonis generatio nec ad hereditatem paternam vel maternam si autem ante feloniam generationem fecerit talis generatio succedit in hereditatem patris a quo non fuit felonia perpetrata Because that at the time of his birth he had two lawfull bloods commixt in him which may not be corrupt by attainder subsequent but onely as to that Father or that Mother by whom the Felony was done and committed Assise To arraigne an Assise is to cause the Demandant to be called to make the plaint and to set the cause in such order as the Tenant may be inforced to answer thereunto and is derived of the French word Arrayner to order or set in right place and the Assise is Arrained in French and entred in Latine Executed and things executory a difference There is a diversity between Inheritances executed and Inheritances executory As Lands executed by Livery c. cannot by Indentures of Defeasance be defeated afterwards And so if a Disseisee release to a Disseisor it cannot be defeated by Indenturs of Defeasance made afterward but at the time of the Release or Feoffment c. the same may be defeated by Indentures of Defeasance for it is a Maxime in Law Quae in continenti fiunt in esse videntur But Rents Annuities Conditions Warranties and such like that be inheritances executory may be defeated by Defeasance made either at that time or at any time after And so the Law is of Statutes Recognizances Obligations and other things executory Distress for a mercement He that distraineth for an Amercement and such like must be sure to distraine the Goods and Chattels of him that is amerced because he may not distraine another mans beasts for this amercement But for rent or services it is otherwise for the party may distraine the beasts found in the land that are levant and couchant there N. B. fol. 100. B. Distress Damage-feasant And if a man take beasts for Damage-feasant and the other offer sufficient amends he refuse c. Now if he sue a Replevin c. for the beasts he shall recover Damages onely for the Detinue of them and not for the taking for that was lawfull F.N.B. 69. The Lord may seise a Herriot service aswell as a Herriot custome Herriot service Herriot custome may be seised Warde and so it was then adjudged by the whole Court Plow fo 96. Replevin Woodland versus Mantle It was resolved that when the King maketh an heir apparent which in age of a Tenent by Knights service a Kt in the life of his ancestor after the ancestor dieth the said heir within age in this case he shall be out of ward and shall pay no value of his marriage nor the Lord shall have the custody of the Land for in such ease by the making of him Knight in the life of his Ancestor he is made as of full age so that when his Ancestor dieth no interest either in the body or in the land ever vesteth in the Lord. It was also resolved that when the heir within age is made Knight after tender made to him although that he within age marry else where yet he shall not pay the forfeiture of marriage Cok. 6. pars fo 73. Sir Drue Druries case If an infant in the life of his father be made Knight and his Father die he shall be in Ward but otherwise it is where an infant in Ward is made Knight there he shall be out of Ward 2. E 6. tit Garde 42. Magna Char. Cap. 3. Touching the time of the beginnning of a Lease for yeares it is to be observed Commencement of a lease Inclusive exclusive that if a Lease be made by indenture bearing Date the 26. of May c. to have and to hold for 21. yeares from the Date or from the day of the Date it shall begin the 27. day of May. If a Lease beare Date the 26. of May. c. to have and to hold from the making hereof or from henceforth or from the sealing and delivery hereof
Emblements who shall have them sowe Hemp or Flax or any other annuall profit if after the same be planted the Lessor out the Lessee or if the Lessee dieth yet he or his executors shall have the yeares Crop and this rule holdeth to every particular tenant that hath an estate in certaine for if tenant for life soweth the ground and dieth his executors shall have the corne sowne for that his estate was uncertaine and determined by the act of God And the same law is of Lessee for yeares of tenant for life if a man be seised of land in the right of his wife and sewe the ground he dieth his executors shall have the corne for that his estate was uncertaine and if his wife die before him he shall have the corne If a man seised of lands in Fee hath issue a daughter and dieth his wife with child of a son the daughter soweth the ground the son is borne yet the daughter shall have the corne because her estate was lawfull and defeated by the Act of God and it is good for the Common-wealth that the ground be sowen But if the Lessee at will sow ground with corne c. and after he himselfe determineth his will and refuseth to occupie the ground in that case the Lessor shall have the corne because he loseth his rent and if a woman that holdeth land durante viduitate soweth the ground and taketh a husband the lessor shall have the Emblements because the determination of her owne estate grew by her own act But where the estate of the Lessee being incertain is defeasible by a right Paramoūt or if the Lease determine by the act of the lessee as by forfeiture condition c. there he that hath the right Paramount or that entereth for any forfeiture c. shal have the corn New Lit. fo 55. titulo tenant at wil. Olands case 5. pars Coke fo 116. vel 126 If a feme seised of land durante viduitate make a Lease for yeares and the Lessee sow the lands and after the wife that made the lease take a husband the Lessee shal not have the Emblements for though his estate determin by the act of a strāger yet he shal not be as to the first lessor in better estate then his lessor was Uses Uses Note That it is not good to make such a limitation generally without any restraint because it maketh all estates with the remainders over to be in contingency To the use of Leonard Lovey for life and after his decease to the use of such farmors or tenants to whom he shall demise any part of the premises for or during life or lives and for any terme of yeares as in any such demise or demises shall be limitted and appointed and then to the use and performance of the last Will and Testament of the said L. Lovey and to the use of such person and persons severally to whom the said L. Lovey by his last Will shall devise any estate or estates of or in the said Mannors lastly mentioned or of any part of them according to the true intent and meaning of his said last Will. And after the performance of his said last Will to the use of c. and for some other Mannors he devised them to Tho. Lovey his son and to the heires males of his body lawfully begotten from and after the decease of the said L. Lovey the father for 500. years then next ensuing fully to be compleated and ended upon condition that his said sonne shall allow of all such estates grants and conveyances thereof already made or at any time to be made by the said L. Lovey of and in the said Mannors Messuages c. and other the premises by him by that his last Will given granted and bequeathed according to the purport true meaning and effect of the said Lease Leases so made or to be made with power of revocation It was resolued that all the remainders were in possibility contingency but yet that the uses and powers in contingency may by mutuall assent of the parties be revoked and determined for as they may be raised by Indenturer so by Proviso or limitation annexed to them in the same Indenture they may be destroyed either before or after their essence And where it is incertaine and doubtfull whether the use or estate limited in futuro shall ever vest in estate or interest or not If a man give lands to a man such a woman as shall bee his wife the man taketh the entire But if a man make a Feoffment in Fee to the use of himselfe and his wife which shall he and he after takes a Wife his wife shall take joyntly with him Coke 1. pars fo 101. there the use or estate is in contingency But yet these contingent estates where power of revocation is may be revoked 10. pars fo 78 Leonard Loveyes case If a man at this day make a Feoffment in fee to the use of A. for yeares and after to the use of the right heires of B. or to the use of the wife of B. which shall be this limitation to the right heires of B. or to the wife of B. which shall be is void because it had beene void if it had been limited in possession Francis Earle of Bedford made a feoffment in Fee of diverse Mannors to the use of himselfe for yeares and then to the use of Jo. L. Russell his son and heire and to the heires Males of his body engendered and for default of such issue to the use of the right heires of the said Earle and after the said Jo. L. Russell died without issue male in the life of the said Earle and it was resolved that the use and estate limited by way of remainder to the right heires of the Earle were void for it had been void if it had been limitted by estate executed at the common law for the remainder ought to vest during the particular estate prima pars fo 130. Chudleis case A Fine was levied to the use of A. and the heires males of his body untill he or the heires males of his body hath done such a thing and after such a thing done to the use of another in taile and dieth without issue without any thing done and it was adjudged the remainder was in contingency ne unques eschie Note that every use in esse that is to say in possession reversion or remainder is executed by the Statute and that no contingent use or right of a use shall be executed within this Statute of 27 H. 8. untill they come in esse 1. a pars fo 126. Chudleis case Disjunctive and copulative A Lease for yeares yeilding yearly to the Lessor or his heires forty shillings this reservation in the disjunctive is good See the book at large the reason Mallories Case 5. pars fo And there If a feoffment be made to A. to have to him or his heirs
there he hath but an estate for life for there want words precedent to direct the words in the disjunctive these words Heires are of the essence of the estate and without them no estate of inheritance shall pass And so by the same reason if a reversion upon a Feoffement in Fee be made to one or his heires such reservation is good no longer but during the life of the Feoffor A. covenants to make a lease to B. and his assignes for 21. yeares the sence of these words shall be taken that he shall make the Lease to B. or his Assignes for 21. yeares Plow Com. fo 289. The defendant bound himselfe by Indenture to pay to the Plantiff a certaine sum if so be that the Defendant did not enfeoffee the plantiffe nor his heires of certain Land when he came to his aunt and the Plantiffe declared that the Defendant came to his aunt and the Plantiffe required him to enfeoffee him and he did not enfeoffee him per quod actio accrevit and exception was taken to this declaration because the condition was in a disjunctive that is to say that the Plantiff should have the sum if the Defendant did not enfeoffee him nor his heires and he hath said that he did not enfeoffe him not speaking of the Feoffment to his heires and if he had performed any of the parts ' of the disjunctive the Plantiffe might not have the debt but the Count was holden very good notwithstanding that exception for the plantiff might not have an heir during his life so that although the condition in words be disjunctive yet forasmuch as the Plantiffe was alive in sence it was not disjunctive for he might not have an heir being alive and the sence of the words are to be taken to enfeoffee the Plantiffe if he be alive if he were dead then to enfeoffee his heires and as the Plantiffe may not have an heire during his life so heere in the case above B. may not have an executor during his life and as the condition there in the disjunctive to enfeoffee at a time to come him or his heirs was taken to enfeoffe him at the time limitted if hee were alive and if he were dead at the time then to his heirs so here the Covenant to make a lease at a time to come to him and his assignes copulatively shall be taken disjunctively in sence that is to say to him if he be alive and to his assignes if he be dead Plow com fo 289. Of uses in esse in futuro A. makes a Feoffment in Fee to the use of D. for life and after to the use of him which shall be his first son in taile and for default of such issue to the use of B. in taile and for default of such issue to the use of C. in fee. In this case forthwith by the Feoffment D. hath estate for life the remainder to B. in taile the remainder to C. in Fee and no estate is put in abeyance or left in the Feoffees but if after A. hath issue a son then the possibility which the Feoffee had becomes to an estate in Law and forthwith the statute of 27. H 8. cap. 10. executeth the possession according to the limitation of the use But if Tenant for life be disseised before the birth of the son and after he hath issue a son now nothing vesteth in the son because there ought to be a use in esse before that the Statute can execute the possession But who shall enter to remoove the impediment and to restore the privity of the estates Surely if the tenant for life shall re-enter hee shall revive all the former estates which the statute of 27 H. 8. hath executed to the former uses in taile and for that also the statute transferreth the estate of the Land to the son in taile for that is the privity which the Statute requireth scil privity of estates which the same statute hath executed upon the lymitation of the uses in the same conveyance before and after the death of tenant for life the Feoffees may enter and revive the use and as lessee for yeares or for life upon condition to have fee may not have increase and inlargement of his estate but upon the privity of the estate of the Lessee so no remainder of a future use may be transferred in estate by force of the Act before the particular estates executed by the statue upon lymitation of uses in the same conveyances be recontinued but if Tenant for life make a Feoffment in fee or dy before the birth of the son his remainder is destroyed as if a Lease be made for life the remainder to the right heires of I. S if lessee for life make a Feoffement or die during the life of I. S. the remainder to the right heires is destroyed and that is the best construction of the statute of 27 H. 8. The chief Baron said that Scintilla juris which is mentioned in 17 Eliz. is like to Sir Tho. Mores Eutopia and they said that after this Statute no trust or confidence was reposed in the Feoffees for now as Walinslow said the Feoffees non possunt agere aut permittere aliquid in prejudice of ceste quâ—… use before the Statute the office of the Feoffe was to execute the estate according to the use but now the statute hath taken all Walinslow said even as a fountain giveth to every one that commeth in their time unto it their just measure of water so likewise the first estate and seisin in fee given by the first Feoffment to the feoffees is sufficient to all persons to whom any use present or future is limitted a competent measure of estate in their time proportionable to their estate which they shall have in the use so that the first seisin by force of the Feoffment whereby the fee-simple is given to the Feoffees shall bee sufficient to serve all their particular uses as well future as present in their severall times and nothing shall remaine in the Feoffees but Walinslow said that all the estate shall be first vested in those which are in rerum natura and the possession shall bee vested in him which hath the future use when that commeth in esse by force of the first livery and shall divide the estates which were conjoyned before If a feoffment in fee be made to the use of one for life and after to the use of the right heires of I. S. the fee simple of the land shall be in abeyance and before the Statute if a man had made a feoffment to the use of one for yeares and after to the use of the right heires of I. S. the Fee-simple of the land shall be in abeyance And before the Statute if a man had made a Feoffement to the use of one for yeares and after to the use of the right heires of I. S. this limitation had been good for the Feoffees shall remaine
deliver his goods in pledge after shal be condemned in personall actions there such Sheep or goods shall not be taken and put in execution untill the lease be determined or the money paid for the pledge Br. distresse 75. So it seemeth of Goods which are distrained for just cause as for rent amercement damage feasant such like and are impounded they are now in custodialegis as long as they are so they may not be taken in execution Br. pledges 28. If the Connusor enfeoffe the King that land is discharged from execution Fitz. 266. so all other lands of the King are exempted from distresses and executions Plowden 242. b. If many men be severally seised of lands and they all severally joyne in one recognizance Satute Merchant or Statute staple in this case the connusee may not extend the land of any of the Connusors onely but all the Connusors ought equally to be charged the one of them alone shall not beare all the burthen because they are all in equall degree and in executions which concerne the realty and charge of the land the Sheriff may not doe execution of the Land of the one alone Co. 3. 13. a 14. When the Connusor hath aliened part of his land yet the Connusor himselfe at the Will of the Connusee may be solely charged because he himselfe is the person which was the debtor and which was bound and therefore he and his lands may be solely charged Co. 3. 14. Br. suite 10 12. And as to a purchasor of lands although their said Lands after the judgement recognisance or Statute be subject to the execution yet such purchasors have greater priviledges given to them by the law then the Connusor himselfe or his heires have So that if land of a purchasor be onely extended for the entire debt such purchasor shall have contribution against all the others of the purchasors and against the connusor or his heir but note that by this word contribution it is not to be understood that the others shall give or allow to him any thing by way of contribution but ought to be intended that the purchasor or party which hath his lands onely extended for all may by Audita querela or scire facias as the case requireth defeate the execution and therby shall be restored to all the meane profits and drive the Connusee to sue execution of all the land so that in this manner every one shall be contributory that is the land of every ter-tenant shall be equally extended co 3. 14. But if the Connusor enfeoffee the connuse of parcell of the land and a stranger of another parcell and reserve parcell in his hands now the connusee shall not have execution against the stranger or any other Feoffee for all shall be extinct against the Feoffees but yet against the connusor the connusee shall have execution of parcell which remaineth in his hands If connusor of Statute Merchant or statute Staple be taken and die in Execution yet the connusee shall have execution of his lands and goods co 5. 86. 87. Fitz. 246. b. If the connusor upon a Statute c. be taken in execution and escape yet his goods and lands upon the same statute may be extended for the escape and the action which the Plantiff had against the Sheriff for the escape is not satisfaction for the debts co 5. 86. By the statute of 3. Jacobi cap. 8. no execution shall be stayed or delayed by Writ of Error or superseded for reversing of any judgement in any action of Debt except the party which sued such Writ of error with two sufficient sureties be first bound to the party for whom such judgement is given to prosecute the said Writ of error with effect and to pay all the debt damages and costs c. if the judgement be affirmed and also costs and damages for such delay And therefore if a man be condemned in any court and his body put in execution and after he procures a Writ of corpus cum causa or certiorari to be directed to the Sheriff to remove his body there the Sheriff upon the said Writ ought to return the truth scil that his prisoner is condemned by judgement given against him upon which the Prisoner shall be forthwith remanded to prison there to remaine untill he hath satisfied the Plantiff 2 H. 5. cap. 2. Fitz. 151. e. If a statute be acknowledged to 2. and the one of them after purchase lands of the connusor then it seemeth that the said statute hath lost his force against both see the Register 147. If execution be sued of the body and of the land and after the connusor enfeoffeth the connusee of the Land or surrender parcell descended to him in all these cases the body shall be discharged for by discharge of part of the thing in Execution all is discharged Plow 72. b When the extent upon a Statute is satisfied and ran out by efluxion of time the Connusor may enter againe Co. 4. 67. But when the extent is satisfied by casuall profit the Connusor must have a Scire facias ibid. Defeasance to a Statue made after execution is good and defeateth aswell the Statute as the execution thereupon Co. 6. 13. But note where the Statute of Actor Burnell is that if the Prisors of the goods of the Connusor prize them too high in favour of the Debitor and to the dammage of the Creditor the things so prized shall be delivered to the Prisors by the same price and they to yield the Credtior his debt these Statutes are penall and extend not to any other Writs of execution but upon the Statute Merchant or Staple or recognizance and therefore upon a Writ of Elegit or other Writ of execution upon judgement if the extenders or prisors praise the lands or goods too high the Plantiff scil the Creditor hath no remedy Benl 4. P. and M. Note that when the lands or goods are delivered to the extenders they forthwith shall answer to the Creditor his debt by the words of the Statute and yet they shall not pay the money untill the daies assessed and limited in the extent Plow 205. b. If the Debitor complaine that his goods or lands were sold or delivered to the Connusee at too low a rate yet he hath no remedy Stat of Actor Bur. for in such cases the Debitor may pay the money and recover his lands and good 15 H. 7. 15. The creditor may well refuse to accept because the Sheriff will not deliver but parcell of the lands of the Connusor for if he accept it he shall be concluded to demand all afterward Fitz h. execution 84. 88. Execution upon a Recognizance REcognizance is an obligation of record acknowledged in any Court of Record or before any Judge or other Officer having authority to take it as before the Judges of the Kings Bench or of commons Pleas the Barons of the exchequer the masters of Chancery the Justices of Peace
such lease or terme yet false recitall notwithstanding if the Sheriff sell also all the interest that the Debitor hath in the said land that sale is good Also the Sherriff need not to mention any certainty of a terme in his returne of Fieri facias but generally quod fieri fecit de bon catall c. Note that it is at the election of the Sheriff to extend or to sell a lease or terme as long as it remaineth in the hands of the Debitor scil the Sheriff at his election may sell that quite or he may extend and deliver it to the Connusee at a certaine yearely value as of Frank-tenement and there the Connusee to whom the terme is delivered hath a property which is uncertain and the Lessee or connusor himselfe hath another propetty so that upon the payment of the debt or upon the debt received of the revenew of that by the connusee the connusor shall have his terme Plow 5. 24 Co. 8. 171. Note there a diversitie between the sale by the Sheriff of a terme and an extent of a terme and that upon sale of a terme by the Sheriff the partie hath no remedie to have his terme againe if any remain after the debt satisfied as it seemeth Execution upon Capias ad satisfaciendum NOte upon a Capias ad satisfaciendum although the Defendant be not found the Plantiff may not have another execution 20. E. 2. and this capias ad satisfaciendum is onely against the body which the Sheriff must be sure to keep safe or else perhaps pay the debt himselfe and therefore if the Sheriff shall take a upon a Capias ad satisfaciendum to him directed or shall have any prisoner to him committed for debt upon any execution and he after shall let the Prisoner goe at liberty before the debt be satisfied the Creditor may either have his action of debt against the Sheriff and shall recover his debt or the Creditor may have his action of the case against the Sheriff 22 H. 7. 23 Fitz. 93. a. c. And if the Prisoner doe escape of his owne wrong against the Will of the Officer although he escape and get out of sight or into another County where the Sheriff or Officer hath no authority yet if fresh suite be made and he be taken again upon the fresh suite he shall be said to be still in execution Co. 3. 52. And if the Prisoner do escape against the will and without the consent of the Sheriff or his Officer may then the Sheriff or his Officer take him again where or whensoever hee can find him by vertue of the same Writ before the returne thereof yea though it be in another County And if that the prisoner which so escaped be followed with fresh suite and taken again before an action be brought by the Plantiff against the Sherriff for the escape it shall be adjudged no escape Co 3. 44. 52. And if the Plantiff hath brought his action against the Sheriff for the escape before he hath taken the prisoner againe Or if upon the escape the Sherriff or his Officers did not make fresh suit after the Prisoner yet in both these cases if the escape were against the will of the Officer the Sheriff may take such prisoner again and keep his body in custody untill the prisoner hath made his agreement with the Sheriff or otherwise the Sheriff may have his action upon the case against such prisoner for such his wrongfull escape if the prisoner that so escaped be able to make him satisfaction And the prisoner in these cases shall not be relieved because the escape was of his owne wrong and without the consent of the Sheriff or Officer co 3. 52. If the connusor of a Statute Merchant or Staple is taken and dies in execution yet the connusee shall have the execution of his goods and lands Co. 5. 87. Connusor upon a Statute is taken and escape yet his goods and lands upon the same statute may be extended For although by the law unica tantum fiat executio yet that is to be understood of an execution with satisfaction Where 2. men are condemned in debt and the one is taken and dieth in execution yet the other may lawfully be taken in execution co 5 86. So if two be bound joyntly and severally in one Obligation and the one is sued condemned and taken in execution yet the other also may be sued and taken in execution untill the Plantiff be satisfied in deed of his intire debt co 5. 86. If a man hath judgement in an action of debt and after the judgement outlawes the Defendant there if the Defendant be taken by Capias utlegat at the suite of the King he shall be in execution for the Plantiff if he will co 5 88. Also in all cases when the Plantiff may have a cap. ad satisfaciendum and the defendant is taken by cap. pro fine there the Defendant is in execution forthwith if the Plantiff will without any prayer of the partie co ibidem And in such cases if the Sheriff suffer such prisoner to goe at large it seemeth to be an escape and that thereby the Sheriff is subject to pay the Plantiff his debt Fitz. 121. p. By the law those which are in execution ought not to goe at liberty within the prison much lesse abroad though with their keeper but such prisoner ought to be keept in arcta salva custodia yea the Sheriff may keep such as are in execution in Gives and Fetters to the intent that they may the sooner pay and satisfie their creditors 13 E. 1. cap. 11. 2 R. 2. cap. 12. co 3. 44 Plow 360. a Where the Sheriff hath one in execution for debt an Habeas Corpus commeth to him to have the body in the Kings Bench at a certain day and he carrieth his prisoner to London to an Inne c. and the Prisoner of his owne head goeth at large and after commeth againe to the Sheriff so as the Sheriff at the day of the returne of the Habeas corpus doth deliver the body in court this was adjudged to be no escape for that the commandement of the Writ is performed scil to have the body in court at such a day and in such case the Sheriff may go and take what way or place he shall think to be most sure and safe for himselfe and to carry his prisoner co 3. 44. It was adjudged if one being in execution no commandement although of the K. himselfe without Writ is sufficient Warrant to discharge the Keeper c. and so by the same reason shall not discharge the Sheriff But note that inasmuch as escapes are so penall to Sheriffs Bayliffs of Liberties and Goalers the Judges of the Law have alwaies made a favourable construction as much as the law will permit in favour of the Sheriffs Bayliffs of Liberties and Goalers who are Officers and Ministers of Justice co 3. 44. Note if