Of general Statutes the Judges will take notice if they be not pleaded but not of special or particular All Acts of Parliaments as well private as general shall be taken by reasonable construction be collected out of the words of the Act only according to the true intention and meaning of the maker Foure lessons to be observed where contrary Laws come in question 1. The inferiour Law must give place to the superiour 2. The law General must yeild to the Law special 3. Mans laws to Gods Laws 4. An old law to a new law And oftentimes all these laws must be joyned together to help a man to his right as if a man disseized and the disseizor made a Feoffment to defrand the plaintiff in this case it appears that the said unlawfull entrie is prohibited by the law of Reason But the Plaintiff shall recover double dammage and that is by the Statute of 8 Hen. 6. And that the dammage shall be sessed by 12. men that is by the custome of the Realm and so in some case these three laws do maintain the Plaintiff's right And these laws concern either mens possessions or the punishment of offences And so much shall be sufficient to be said touching common Law Customes and Statutes CONCERNING POSSESSIONS The difference between Possession and Seizin is Lease for years is possessed and yet the Lessor is still seized and therefore the termes of the Law are that of Chattels a man is possessed whereas in Feoffments gifts in tayle and Leases for life he is called seized CHAP. III. Of possession of Frank-Tenement TEnant in Fee-simple is he which hath Lands or Tenements to hold to him and his heires for ever It is the best Inheritance a man may have He may sell or grant or make his Will of those Lands And if a man die they do discend to his heire of the whole blood CHAP. IV. FEE-TAYLE Fee-Tayle is of what body he shall come that shall inherit Tenant in Tayle is said to be in two manners Tenant in Tayle General and Tenant in Tayle Special GEneral Tayle is where Lands or Tenements be given to a man and his wife and to the Heires of their two bodies or to his heires males or to his heires females Tenant in Tayle is not punishable for waste Tenant in Tayle cannot Will his Lands nor bargain sell or grant but for terme of his life without a Fine or Recovery If a man will purchase lands in Fee it behoveth him to have these words Heires in his purchase If a man would grant Lands in Tayle it behoveth him to appoint what body they shall come of Yet a devise of lands to a man and his heires males is a good Intayle and of lands to a man for ever a good Free-Simple How Lands shall discend Inheritance is an estate which doth discend it may not lineally ascend from the son which purchaseth in Fee and dyeth to his Father but discendeth to his Uncle or Brother and to his heires which is the next of the whole blood for the half blood shall not inherit But the most worthy of Blood as of the blood of the Father before the Mother of the elder Brother before the other and borne within espousall A discent shall be intended to the heire of him which was last actually seized That the Sister of the whole blood where the elder Brother did enter after the death of his Father and not his Brother of the halfe blood nor any other collaterall Cosen shall inherit yet notwithstanding such a one is heire to a common Ancester in which Rule every word is to be observed and so in every Maxim if the Land Rent Advowson or such like do discend to the elder Son and he die before any entry or receit of the rent or presentment to the Church the younger son shall have and inherit and the reason is because that in all inheritances in possession he which claimeth title there unto as heire ought to make himself heire to him that was last actually seized Here the possession of the Lessee for years or of the Guardian shall invest the actual possession and Frank-Tenement in the elder brother But he dying seized of a Reversion or a Remainder or an estate for life or in tayle There he which claimeth the Reversion or Remainder as heire ought to make himself heire to him that had the Gift or made the purchase Feodo excludeth an estate tayle where the second son shall inherit before the daughter And if the Lands be once settled in the blood of the father the heire of the mother shall never have them because they are not of the blood of him that was last seized And to the heire of the blood of the first Purchaser As if the Father purchase Lands and it discendeth to the son who entreth and dieth without heires of the Fathers part then the Lands shall discend to the heires of the mother or father of the father and not to the heires of the mother of the son although they are more neer of blood to him that was last seized yet they are not of the blood of the first Purchaser If the heires be females in equal distance as Daughters Sisters Aunts and so forth they shall inherit together and are but one heire and are called Parceners Gavill-kinde Doth discend to all the sons and if no sons to all the daughters And may be given by Will by the Custome CHAP. V. PARCENERS Parceners are of two sorts Women and their heires by the Common law Men by the Custom THey may have a Writ of Partition and the Sheriff may go to the Lands and by the oath of 12 men make Partition between them and the eldest shall have the Capitall Messuage by the Common Law and the youngest by the Custome Where the parties will not shew to the Jewry the certaintie there they shall be discharged in conscience if they make Partition of so much as is presumed and known by presumptions and likelyhoods Parceners may by agreement make partition by Deed or by Word and the eldest first choose unless their agreement be to the contrary Every part at the time of the partition must be of an even yearly value without incumbrance Rent may be reserved for equality or Partition and may be distrained for without a Deed. Parceners by divers discents before partition being disseized shall have one assize A Parcener before partition may charge or demised her part The entrie or Act of one Copartner or joynt-Tenant shall be the Act of both when it is for their good If a Parcener after Partition be entred she may enter upon her Sisters part and hold it with her in Parcenary and have a new Partition if she hold none of her part before she was outed viz. in exchange CHAP. VI. JOYNT-TENANTS IOynt-Tenants be such as have joynt estates in goods or lands where he that surviveth shal have all without incumbrance if the Tenements abide in the same plight as they
were granted Joynt-Tenants may have several estates A Joynt-Tenant cannot grant a Rent-charge but for terme of his own life A Joynt-Tenant may make a Lease for life or for years of his part or Release and the Lessee for years may enter although the Lessor die before the Lease begin and his heire shall have the Rent but the Survivor the Reversion A Joynt-Tenant may have a Writ of Partition by the Statute of the 31. of H. 8. cap. 32. A Partition made by Joynt-Tenants or Tenants in Common of Estates of Inheritance must be by Indenture by Word 't is void CHAP. VII TENANTS in COMMON Tenants in Common are those that hold Lands and Tenements by several titles They may joyne in action personal but they must have several actions Real They may have a Writ of Partition by the Stat. of 31. H. 8. cap. 32. IF one Parcener Joynt-Tenant or Tenant in Common take all the other have no Remedie but by Ejectione firme or such like or Waste Gavil-kinde-Lands Tenant by the curtesie of Kent whether he have Issue or no untill he marry and so forth he may not commit Waste CHAP. VIII TENANT in DOWER A Woman shall be indowed of all sorts of inheritance of her husband where the Issue that she had by him may inherit as heire to his father by meetes and bounds of a third part She shall have house-roome and meat and drink in common for forty dayes But she may not kill a Bullock within those 40. days after the death of her husband in which time her Dower ought to be assigned her The Assignement by him that had the Frank-Tenement is good but by him that is Guardian in Soccage or Tenant by Elegit verte Elegit or Statutes or Lessee for years is not She is to demand her Dower on the Land She shall recover dammages when her husband dyed seized from the death of her husband if the heire be not ready at the first day to assigne her Dower She shall have all her Chattels real againe execept her husband sell them he may not charge them or give them by his Will and likewise her bonds if the money were due in the life of her husband and all convenient apparel but if she have more then is fit for her degree it will be assets A woman shall be barred of her Dower so long as she detaineth the bodie of the heire being Ward or the Writing of the sons Land A woman shall not be endowed of any lands that her husband joyntly holdeth with another at the time of his death Dower of Gavil-kind Lands If the woman shall be endowed of one half so long as she is unmarried and chaste and it may be held with the heire in Common It is of Lands and Tenements and not of a Faire or such like where the Heire loseth not his inheritance there she loseth not her Dower Joynture IF a woman have a Joynture be fore marriage she may claim no Dower 27. Hen. 8. If it be made during marriage she may enter into her Joynture presently If she enter or accept of it she shall not be endowed If she shall be expulsed of any part of her Joynture she shall be endowed of the residue of her husbands Lands CHAP IX Tenant for terme of Life TEnant for terme of life is he that hath Lands or Tenements for terme of his life or another mans life and none of lesser estate may have a Free-hold If a Tenant for life sowe the Lands and die before the corn be reaped his Executor shall have it but not the Grasse nor other fruit If a Tenant for life be impannelled upon an Inquest and forfeit Issues and die they shall be levied upon him in the Reversion and so likewise if the Husband on the Lands of the Wife CHAP. X. Tenant for Terme of yeares Tenant for terme of years is where a man letteth lands or tenements to another for certain yeares HE may enter when he will the death of the Lessor is no let and may grant away his terme before it begin but before he enter he cannot Surrender nor have any action of trespasse nor take a release He is bound to repaire the Tenements The Lessor may enter to see what Reparations or Waste there is and he may distraine for his rent or have an action of debt If Tenant for life or years granteth a greater estate then he hath himselfe he doth forfeit his terme CHAP. XI Tenant at Will Tenant at Will is hee that holdeth lands or tenements at the Will of another THe Lessor may reserve a yearely rent and may distraine for it or have an Action of debt the Lessee is not bound to repaire the Tenements The Will is determined by the death of the Lessor or of a woman Lessee by her marriage or when the Lessee will take upon him to doe that which none but the Lessor may doe lawfully it determineth the Will and Possession and the Lessor may have an action of Trespasse for it The Lessee shall have reasonable time to have away his goods and his corne But he shall lose his Fallow and his dung carried forth CHAP. XII REMAINDER A Remainder is the residue of an estate at the same time appointed over and must be grounded upon some particular estate given before granted for years or for like and so forth And ought to begin in possession when the particular estate endeth there may bee no mean time between either by Grant or Will No remainder can be of a Chattel personal a Remainder cannot depend on a matter ex post facto as upon Estate tayle upon condition That if the Tenant in Tayle sell then the Land to remain to another is a void Remainder CHAP. XIII REVERSION A Reversion is the residue of an estate that is left after some particular estate granted out in the Grantor as if a man grant Lands for life without further granting the Reversion of the Fee-simple is in the Lessor CHAP. XIV WASTE WASTE lieth against a Tenant by the curtesie for life for years or in Dower and they shall lose the place wasted and treble dammages Waste lieth not against a Tenant by Elegit Statute-Merchant or Staple but account after the debt or dammage levied Waste or account will lie against a Tenant in Mortgage because he had Fee conditionall Waste is not given to the heire for Waste in the life of his Father Waste is given against the Assigne of the Tenant for life or of anothers life but not against the Assignee of a Tenant in Dower or of the curtesie it is to be brought against themselves It is Waste to pull up the formes benches doors windowes walls Filbert-Trees or Willows planted CHAP. XV. DISCONTINUANCE DIscontinuance is where a man that hath the present possession by makeing a larger estate then he may divesteth the inheritance of the Lands or Tenements out of another and dieth and the other hath right to have them but he may not enter
not fixed with Screwes Tenant in tayle may make a lease for such lands or inheritance as have been commonly letten to farm if the old lease be expired surrendered or ended within one year after the making of the new But not without impeachment of Waste nor above 21 years or three lives from the day of the making reserving the old Rent or more 32. H. 8. By Indenture of Lease by Tenant in tayle for 21 years made according to the forme of the Statute rendring the ancient or more Rent If the Tenant in tayle die it is a good lease against â—his Issue But if a Tenant in tayle die without Issue the Doner may avoid this Lease by entrie 32. H. 8. 28. And if he in the Remainder do accept the Rent it shall not tie him for that the Tayle is determined the Lease is determined and void Ed. â— 19. The Husband may make such a Lease of his wifes lands by Indenture in the name of the husband and wife and she to seale thereunto and the rent must be reserved to the husband and his wife and to the heires of the wife according to her estate of Inheritance A Lease made by the husband alone of the Lands of his wife is void after his death But the Lessee shall have his Corne. By the husband and wife voidable if it be not made as aforesaid If a man do let Lands for years or for life reserving a Rent and do enter into any part thereof and take the profit thereof the whole Rent is extinguished and shall be suspended during his holding thereof The aceptation of a re-demise to begin presently is suspension of the Rent before any entrie otherwise of a re-demise to begin in suturo Reservations and Exceptions THere are divers words by which a man may reserve a Rent and such like which he had not before or to keep that which he had as Tenendum reservandum solvendum saciendum it must be out of a Messuage and where a distresse may be taken and not out of a Rent and it must be comprehended within the purport of the same Word Exceptions of part ought always to be oâ— such things which the Grantor had in possesion at the time of the Grant The heire shall not have that which is reserved if it be not reserved to him by special words If a man make a Feoffment of Lands and reserve any part of the profits thereof as the grass or the Wood that reservation is void because it is repugnant to the feoffment A man by a Feoffment Release Confirmation or Fine may grant all his right in the Land saving unto him his Rent-charge c. Things that are given only by taking and useing As pasture for four Bullocks or two loads of Wood cannot be reserved but by way of Indenture and then they shall take effect by way of Grant of the Grantor during his life and no longer without speciall Words Exceptions of things as Wood Myne Quarrie Marle or such like if they be used it is implied by the Law that they shall be used and the things without which they cannot be had is implied to be excepted although no c. But otherwise if they be not used then the way and such like must be excepted An Assignee may be made of Lands given in Fee or for life or for years or of a Rent-charge although no mention be made of the Assignee in the Grant But otherwise it is of a promise Covenant or Grant or Warranty If a Lessee do assigne over his terme the Lessor may charge the Lessee or assigne at is pleasure But if the Lessor accept of the Rent of the Assignee knowing of the assignement he hath determined his acception and shall not have an action of debt against the Lessee for Rent due after the assignement If after the assignement of the Lessee the Lessor do grant away his Reversion the Grantee may not have an action of debt against the Lessee If a Lessee do assigne over his interest and die his Executor shall not be charged for rent due after his death If the Executor of a Lessee do assigne over his interest an action of debt doth not lie against him for rent due after the assignement If the Lessor enter for a condition broken or the Lessee do surrender or the terme end the Lessor may have an action of debt for the arrearages A Lease for years vending rent with a condition that if the Lessee assigneth his terme the Lessor may re-enter The Lessee assigneth the Lessor receiveth the Rent of the hands of the assignee not knowing of the assignement it shall not exclude the Lessor of his entrie A thing in a Condition may be assigned over for good cause as just debt as whereas a man is indebted unto me 20. pounds and another do owe him 20. pounds he may assigne over his Obligation unto me in satisfaction of my debt and I may justifie the suing for the same in the name of the other at my own proper costs and charges Also where one hath brought an action of debt against I. N. which promiseth me that if I will aide him against I. N. I shal be paid out of the sum in demand I may aid him An assignee of Lands if he be not named in the condition yet he may pay the money to save his Land But he shall receive none if he be not named the tender shall be to the Executor of the Feoffees Assignee shall alwayes be intended he that hath the whole estate of the assignor that is assignable a Condition is not assignable and not of an Executor or Administrator if there be such an assignee the law will not allow an assignee in the law if there be an assignee indeed so long as any part of the estate remaineth to the assignor the tender ought to be made to him or his heires it serveth yet a colourable payment to the heire shall not veste the estate out of the assignee as a true payment will viz. Covenant CHAP. XXXVI SURRENDERS A Surrender is an Instrument testifying with apt words that the particular Tenant of Lands or Tenements for life or years doth sufficiently consent that he which hath the next immediate Remainder or Reversion thereof shall also have the particular estate of the same in possession and that he yeildeth or giveth the same to him for ever Surrender ought forthwith to give a present possession of the thing Surrendred unto him which hath such an estate where it may be drowned A Joynt-Tenant cannot surrender to his fellow Estating of things that may not be granted without a Deed may be determined by the Surrender of the Deed to the Tenant of the Land Lease for years cannot surrender before his Term begin he may grant he cannot surrender part of his Lease Surrenders are in two manners In Deed. In Law A Surrender in Law is when the Lessee for years doth take a new Lease for more years A Surrender
in Deed must have sufficient words to prove the assent and will of the Surrenderer to Surrender and that the other do also thereunto agree The husband may Surrender his Wifes Dower for his life and her Lease for ever By Deed Indented a man may Surrender upon condition CHAP. XXXVII RELEASES A Release is the giving or discharging of a Right or Action which a man hath or claimeth against another or out of or in his lands A Release or Confirmation made by him that at the time of the making thereof had no right is void if a right come to him afterwards unless it be with warranty and then it shall barr him of all right that shall come to him after the warranty made Release or confirmation made to him that at the time of the Release or Confirmation made had nothing in the Lands is void it behoveth him to have a Free-hold or a possession and privitie A Release made to a Lessee for years before his entrie is void A man may not release upon a Condition nor for a time nor for part But either the Condition is void and the time is void and the Release shall enure to the partie to whom it is made for ever for the whole by way of extinguishment But a man may deliver a Release to another as an Escrowe to deliver to I. S. as his Act and Deed if I. S. do perform such a thing or Release upon a condition by Deed indented may be good A Joynt-tenant or a Rent-charge may release yet all the Rent is not extinct nor yet if he purchase the lands his fellow shall have the Rent still If the grantee release parcell of a Rent-charge to the Grantor yet all the Rent is not extinct A Release to charge an estate ought to have these words Heires or words to shew what estate he shall have A release made to him that hath a Reversion or a remainder in Deed shall serve and help him that hath the Frank-tenement So shall a Release made to a Tenane for life or a Tenant in Tayle inure to him in the Reversion or Remainder if they may shew it and so to Trespassors and Feoffees but not to Disseisors A Release of all manner of Actions doth not take away an entrie nor the taking of ones Goods againe nor is any Plea against an Executor A Release of all demands extinguisheth all Actions Reall and Personall appeales Executions Rent-charge Common of Pasture Rent-Service and all right and Seizure and all right in Lands and propertie in Chattels But not a possibility or future duty as a Rent payable after my death and such like CHAP. XXXVIII CONFIRMATION Confirmation is when one ratifieth the possession as by Deed to make his passession perfect or to discharge his estate that may be defeated by another entrie AS if a Tenant for life will grant a Rent-charge in Fee then he in the Reversion may confirme the same Grant Whereas a man by his entrie may defeat an estate there by his Deed of Confirmation he may make the estate good A Confirmation cannot charge an estate that is determined by express Condition or limitation To confirm an estate for an houre if it be for Tenant for life it is good for life if to Tenant in Fee for ever A lease for years may be confirmed for a time or upon condition or for a piece of the Land But if a Frank-tenement be it shall enure to the whole absolutely A Confirmation to charge an estate must have words to shew what Estate he shall have To confirm the Estate of Tenant for life to his heires cannot be but by Habendum the Land to him and his heires And therefore it is good to have such a Habendum in all confirmations In a Confirmation new service may not be reserved old may be abridged A Confirmation made to one Disseizor shall be voidable to the other so shal not a Release CHAP. XXXIX CONDITION There are two manner of Conditions one expressed by Words another implyed by the Law the one called a Condition in deed the other a Condition in Law ESTATE made and the condition against the law the Estate 's good the Condition's void If the Estate beginneth by the Condition then both are void Bonds with Conditions expresly against the Law are void Conditions repugnant the estate good the Condition void Conditions impossible are void the Estate good it shall not enlarge any estate By pleading a man may not defeat an Estate of Frank-Tenement by force of a condition in Deed without he shew the Condition of Record or in writing sealed yet the Jurie may help a man where the Judges will take their Verdict at large of Chatttels he may Promise doth make a Condition but when it doth depend upon another sentence or hath reference to another part of the deed it maketh no condition but a qualification or limitation of the sentence or of that part of the Deed as provided that the person of the Grantee shall not be charged He which hath interest in a Condition may fulfill the same for safeguard of himself Between the parties it is not requisite the Condition be performed in every thing if the other do agree but to a stranger it must If the Obligee be partie to any Act. by which the Condition cannot be performed then the Obligor shall be discharged So he shall be by the Act of the Condition Where the first Act in the Condition is to be performed by the Obligee and he will not do it there the Obligation is not forfeited Where no time is set if the Condition be for the good of a stranger or of the Obligee then it is to be performed within convenient time if for the good of the Obligor at any time during their lives Immediately shall not have such a strict construction but that it shall suffice if it be done in convenient time If a man be bound to pay money or farm Rent he must seek the parties But if he be bound to perform all payments if he render his farm on the land it sufficeth If the Feoffee or Feoffor die before the day of payment the tender shall be to the Executor although the heire of the Feoffee do enter if the heire be not named vide Assignee in assignement The money must be tendred so long before Sun-set that the receiver may see to tell it To pay part of a Sum at the day cannot be satisfaction for the whole sum as a horse or a robe is But before the day or at another place at the day of the request and acceptance of the Obligee is full satisfaction An Acquittance is a good barr if nothing be paid In all cases of Conditions a payment of a certain sum in gross touching Lands or Tenements if lawfull tender be once refused he which made the tender is discharged forever And the manner of the tender and payment shall be directed by him that made it and not by him that
to their intent and not in so precise a form as Grants or pleadings but as verdicts yet the substance of the matter ought to appear either by express words or by words equivalent or by those that do amount thereunto But it were good that Awards were drawn up by some that is skilful for the avoiding of Controversies which otherwise may arise about the same Agreement AN agreement is made between the parties themselvs there must be a satisfaction made to either party presently or remedy for the recompence or else it is but an indeavour to agree Tender of money without payment or agreement to pay money at a day to come is not any satisfaction before the day be come and the money be paid it cannot be pleaded in Bar in an action of Trespass For that as the other partie hath no meanes to compell the other to pay the money So he may refuse it at the day if he will otherwise in an Arbitrament but money paid at a day before the Action brought is a good plea. FINIS A TREATISE OF PARTICULAR ESTATES Written By Sir JOHN DODDRIDGE KNIGHT LONDON Printed Anno. Dom. 1651. A TREATISE OF PARTICULAR ESTATES Particular ESTATES A Particular Estate is such as is derived from a general Estate by separation of one from the other As if a man seised in Fee simple of Lands or Tenements doth thereof cheat by gift or grant an â—state Tayle or by demise a Lease for life or â—…y estate for years these are in the Donee or â—easee Particular Estates in possession derived â—nd separated from the Fee simple in the Deâ—…nor or Leasor in Reversion Also if Lands be demised to A. for life the remainder to B. and the Heires of his body the remainder to C. and his heires the Estate for life limited to A. the Estate Tayle limited to B. are particular Estates derived ut supra and separated in Interest from the Fee simple the remainder given to C. albeit the same remainder doth depend upon those Particular Estates And of Particular Estates some are created by agreement between the Parties and the particular Estates before specified And some by act of Law as the state in Tayle apres possibility de issue extinct Estates by the courtesie of England Dower and Wardship for albeit an estate in Dower be not compleat untill it be assigned which oftentime is done by assent and agreement between parties yet because the partie that so assigneth the same is compellable so to do by coursâ— of Law that Estate is also said to be create by Law also an Estate at will is a kinde of particular Estate but yet not such as maketâ— any Division of the Estate of the Lessor is seised for notwithstanding such an Estate the Lessor is seized of the Land in this Demeâ—…sure as for Fee in possession and not in Reversion Also an Estate at will is not such particular Estate whereupon a Remainder may depend But of all the Estates before mentioned many fruitfull rules and observations are both generally and particularly so lively set forth by the said Mr. Littleton in the 1 2 3 4 5 6 7 and 8. Chapters of his first Book which is extant as wel in English as in French whereunto I referr you Possession IT is further to be observed that all Estates that have their being are in Possession Reversion Remainder or in Right but of all these Possession is the Principall there are two degrees of the first and chiefest possession in fait poss in Law or Deed is such as is before spoken of And that is most proper to an Estate which is present and immediate but yet such possession of the immediate Estate if it be not greater then a tearm doth operate and enure to make the like possession of the Free-hold or Reversion when a man is said to have a Tearm it is to be intended for years when it is said a man to have the Fee of Lands it is also to be intended a Fee simple Possession is that possession which the Law it self casteth upon a man before any Entry or Pernancy of the profits As if there be Father and Son and the Father dieth seised of Lands in Fee and the same do descend to the Sonne as his next Heire in this case before any entry the same hath a possession in Law so it is also of a Reversion exportant or a Remainder dependant upon particular Estate or life in which case if Tenant for life die he in Reversion or Remainder before his Entry hath only possession in Law All manner of possessions that are not possessions in fait are only possessions in Law and it is to be observed then if a man have a greater Estate in Lands then for years the proper phrase of speech is that he is thereof seised but if it be for years only then he is thereof possessed But yet nevertheless the Substantive possession is proper as well to the one as to the other Reversion A Reversion is properly an Estate which the Law reserveth to the Donor Grantor or Lessor or such like which he doth dispose parcel of his Estate when he doth dispose less Estate in Law then that whereof he was seised at the time of such disposition as if a man seised of Lands in Fee doth give the same to another and the Heires of his body or if he doth dismiss the same for life or years in these cases the same reserveth the reversion thereof in Fee to the Donor or Lessor and his Heires because he departed not with his whole Estate but onely with a particular Estate which is less then his Estate in Fee and such Reversion is said to be expectance upon the particular Estate Also if he that is but Tenant for life for Land and doth by Deed or paroll give the same S. in Tayle or for tearm of his life which is a greater Estate then he may lawfully dispose In this case the Law reserveth a Reversion in Fee in such Donor though he were formerly but Tenant for life and the reason thereof is for that by such unlawfull disposition which by deed or word cannot be without livery and seisin he doth by wrong pluck out the rightfull state in Fee from him that was thereof formerly seised in Reversion or Remainder and thereof by a priority of time gained in an instance he was seised of a Fee simple at the time of the executon thereof But if a man seised of Lands in Fee simple giveth the same to A. and his heirs until B. do die without heire of his body in this case the Law reserveth no Reversion in the Donor because the state is disposed to A. is a Fee simple determinable is in nature so great as the state which the Donor had at the time of such gift and consequently he departed thereby with al his state and therby an apparent difference is between a gift made to A. and the heires of his own body and a gift made
Habend presently The Habendum or Condition must not be Repugnant to the Premises if it be it is void and the Deed will take effect by the Premises A Warrant is good although it extend not unto all the Lands nor to all the Feoffees or made by one of the Feoffors If it be rased or interlined in the Date or in any materiall place it is very suspitious Of Sealing A Writing cannot be said to be a Deed if it be not sealed although it be written and delivered it is but an Escrowe And if it were sufficiently fealed yet if the Print of the seale be utterly defaced the Deed is unsufficient it is not my Deed. It may not be pleaded but it may be given in Evidence Of Delivery A Deed taketh effect by the delivery and if the first take any effect the second is void A Jurie shall be charged to enquire of the delivery but not of the date yet every Deed shall be intended to be made when it doth beare date Diversitie in delivering of a WRITING As a Deed. As Escrow THis Delivery ought to be done by the partie himself or by his sufficient Attourney and so it shall binde him whosoever wrote or sealed the same If one be bound to make assurance he need not to deliver it unless there be one to read it to him before And if any writing be read in any other forme to a man unlearned It shall not be his Deed although he Seale and deliver it There are two sorts of Deeds A Deed Poll which is the Deed of the Grantor a Deed indented which is the mutuall Deed of either parties but in Law one is the Deed of the Grantor and the other the counter-partie and if any variance be in them it shall be taken as it is in the Deed of the Grantor and if the Grantor Seale only it is good CHPP. XXX BARGAINS and SALES NO mannor-Mannor-lands Tenements or other hereditaments can pass alter or change from one man to another whereby an estate of Inheritance or Free-hold is made or taketh effect in any person or persons or any use thereof is made by reason only of any Bargain and Sale therefore except the same be made by writing indented sealed and inrolled in one of the Courts of Record at Westminster or within the same Court or Countie where the Tenements so bargained do lie before the Custos Rotulorum and two Justices of Peace and the Clerk of the Peace or two of them where of the Clerk of the Peace to be one and that within six months after the date of such writing indented 27 H. 8. The inrollment shall be indented the first day of the Terme and shall have relation to the delivery of the Deed against all strangers CHAP. XXXI FEOFFMENTS A Feoffment is an estate made by delivery of Possession and seizin by the party or his sufficient Attorney A man cannot make livery of seizin before he have the Possession A Joynt-Tenant cannot enfeoffe his Companion A Co-partner make a Feoffment of his part or release A man cannot enfeoffe his Wife A Disseizor cannot enfeoffe the Dsseizee for his entrie is lawfull upon the disseizor Such persons as have possession in lands for yeers or for life c. cannot take by livery and seizin of the same Lands IF a Feoffment be made and the Lessee for years give leave to the Lessor to make Livery and seizin of the Premisses saving to himself his Lease c. and he doth the terme is not surrendred for the Lessee had an Interest which could not be surrendred without his consent to surrender here his intent to surrender doth not appear wherefore he may enter have his term the rent is renewed but it is otherwise with a Lessee for life and the rent is extinct The Lessor cannot make Livery and seizin against the Will of the Lessee being on the Land But he may grant the Reversion and if the Lessee do Attorn the Free-hold will pass without Livery of seizin Livery of Seizin LIvery of seizin is a Ceremonie used in Conveyance of Lands that the Common people might know of the passing or alteration of the estate it is requisite in all Feoffments gifts in the tayle and Leases for life made by deed or without deed No Free-hold will pass without Liverie of seizin except by way of surrender Partition or exchange or by matter of Record or by Testament Livery of seizin must be made in the life-time of him that made the estate Dona clandestina sant semper suspitiosa BY Livery of seizin in one County the Lands in another County will not pass Livery within view is good if the Feoffee do enter in the life-time of the Feoffor Livery may not be made of an estate to begin in Future for no estate in Frank-Tenement may be given in Futuro but shall take effect presently by Livery and Seizin Of Vses THe Statute of 27. H. 8. hath advanced uses and hath established suretie for him that hath the Use against his Feoffees for before the Statute the Feoffees were owners of the Land but now it is destroyed and the cestyaque Use is owner of the same before the possession ruled the Use but since the Use governeth the possession Indentures subsequent be sufficient to direct the Uses of a Fine or Recovery precedent when no other certain and full declaration was made before Attorney AN Attorney ought to do every thing in the name and as the act of him which gave him the authority as Leases in name of the Lessor but he must say by vertue of his Letter of Attorney I do deliver you possession and seizin of c. for c. An Attorney must first take possession before he can make Livery of Seizin If an Attorney do make Livery of Seizin otherwise then he hath warrant then it is a diseizin to the Feoffor An Attorney must be made by writing sealed and not by word CHAP. XXXII EXCHANGE In Exchange both the estates must be equall there must be two Grants in every grant mention must be made of this word exchange It may be done without Livery of Seizin if it be in one Shire or else it must be done by Indenture and by this word Exchange or else nothing passeth without livery EXCHANGE importeth in the Law a Condition of Re-entry and a Warranty voucher and recompence of the other land that was given in Exchange an Assignee cannot re-enter nor vouch but Rebate Exchanger may re-enter upon an Assignee And the same condition defeated in part is defeated in the whole and the same law is in partition CHAP. XXXIII GRANTS GRants must be certain A Grant to I. S. or I. N. is void for the incertaintie although it be delivered to I. S. The delivery of the Deed will not make a void Grant good or to take effect The Lord cannot Grant the Wardship of his living Tenant because of the uncertainty who shall be his heire unless he name some
for years and if he die within the term that it shall remain to M. A. and it is good for the first hath but the occupation and the other after him shall have the property But if a chattell be given to one for life the remainder to another the remainder is voyd For a Grant or Devise of a Chattel for an houre is good for ever and the Devisee may dispose of it but if he do not the other shall have it A man may Devise his Lands he holdeth in Lease but not his Lease under this condition Provided that if the Devisee die within the term then he shall have it If a man Will his goods to his wife and that after her decease his Son and Heir shall have the House wherein they are she shall have the house for term of her life yet it is not devised unto her by express words But it doth appear that his intent was so by the words If a man willeth his Lands to his wife til his Son commeth to the age of 21 yeers and the woman taketh another husband and dyeth the husband shall have the Interest By a Devise a man may have the Fee-simple without express words of Heirs as if Lands be willed to a man for ever or to have and to hold to him and to his assignes c. By Will Lands may be intailed without the word Body as if Lands be given to a man and to his heirs male it doth make an estate tail If a man Will that his Executors shall sell his Lands the inheritance doth descend to the Heir yet the Executors may enter and enfeoffe the Vendee But if Lands be given to the Executor to sell and they receive the profits thereof to their own use and do not sell the same in reasonable time the Heir may enter An Executor may sell if the other will not If Lands be recover'd against Tenant for life or for years by an action of Waste or former title he may not give his Corn. If the Cognizee have sown the Lands and the Cognizor bring a scire he may give the Corn sown If a man Devise omnia bona Cattalla Hawks nor Hounds do not pass nor the Deer in the Park nor the Fish in the Ponds CHAP. XLVII EXECUTORS AN Executor is he that is named and appointed by the Testator to be his successor in his stead to enter and to have his goods and chattels to use Actions against his Debtors and Legacies so far as his goods and chattels will extend Where two Executors are made and one doth prove the Will and the other doth refuse notwithstanding he that refuseth may administer at his pleasure and the other must name him in every action for every duty due to the Testator and his release shall be a good barr If he do survive he may administer and not the Executor of him that died but otherwise if all had refused If one prove the Will in the name of both he that doth not administer shall not be charged If the Executor do once any action that is proper to an Executor as to receive the Testators debts or to give acquittance for the same c. he may not refuse But other acts of charity or humanity he may do as to dispose of the Testators goods about the Funerall to feed his cattell least they perish or to keep his goods least they be stoln these things may every one do without danger When Executors do bring an action it shal be in all their names aswell of them that do refuse as of other But an action must be brought against him that doth administer only and he which first cometh shall first answer An Executor of an Executor is Executor to the first Testator And shall have an action of debt accompt c. or trespass as of the goods of the first Testator carried away and execution of Statutes and Recognizances c. St. 25. Ed. 5. The title and interest of an Executor is by the Testament and not by the Probate but without shewing it they may release the Probate The Justices wil not allow them tosue actions The Executor shall have the wardship of the Body and Lands of the Ward in Knights service but not in Soccage and Leases for years and rent charges for years Statutes Recognizances Bonds Lands in Executions Corn upon the ground Gold Silver Plate Jewels Money Debts Cattell and all other goods and Chattells of the Testator if they be not devised and may devise them But if he do will omnia bona Cattallasua the goods of the Testator pass not neither shall they be forfeited by the Executor An Executor is chargeable for all duties of the Testator that are certain but not for Trespass nor for receipt of rents nor for occupation of Lands as Bailiffe or Guardian in Soccage c. For this is not any duty certain so farr as he shall have Assets If the Executor do waste the goods of the Testator he shall pay them of his own An Executor shall not be charged but with such goods as come to his hands but if a stranger take them out of his possession they are assets in his hands If an Executor take goods of another mans amongst the goods of the Testator he shall be excused of the taking in Trespass Duties by matter of record shal be satisfied before duties by specialty and duties by specialty before charges and Legacies before other duties An Executor may pay a debt or credit of some kind depending the writ before notice of the action but not after notice or issue joyned An Executor may pay debts with his own money and retain so much of the Testators goods but not Lands appointed to be sold Any of these words debere solvere recipere borrowed or any word that will prove a man a debtor or to have the money If it be by Bill will charge the Executor or Administrator but not the Heir if he be not named CHAP. XLVIII ADNINISTRATORS AN Administrator is he to whom the Ordinary of the place where the intestate dwelt committeth the Testators goods Chattel credits and rights For wheresoever a man dieth intestate either for that he was so negligent he made no Testament or made such an Executor as refused to prove it or otherwise is of no force the Ordinary may commit the administration of his goods to the Widow or next of kin or to both which he pleaseth making request and revoke it again at his pleasure The Ordinary may assigne also a Tutor to the intestates children to his sonnes untill twelve year But so that it be not a prejudice to him that is the Guardian and after those years he or she may respectively choose their own Curators and the Guardian may confirm them if there be not good order taken by their fathers Will. As if such a Tutor die the Infant cannot have an Action of account against his Executor The power and charge of an Administrator
is equall in every point to the power and charge of an Executor a man may have an action of the case against the Executor or Administrator upon the assumption of the Testator upon good consideration or debt for Labourers wages by the Statute And if a man make an Infant his Executor the Ordinary may commit the Execution of the will to the Tutor of the Child to the Childs behoof until he be of the age of 17. years and if he be granted for longer time it is void An Administrator dur ante minoritate may do nothing to the prejudice of the Infant he may not sell any of the goods of the deceased unless it be upon necessity as for the payment of debts or that they would perish nor let a Lease for a longer time then whilst he is Executor An infant upon the true payment of a debt due to the Testator may make an acquittance and it shall be good For a Child may better his estate but not make it worse CHAP. XLIX HEIR IF a man die seised of any Lands and do not dispose of them by his Will they do descend to his Heir as aforesaid And he shall have not onely the Glass and Wainscot but any other of such like things affixed to the Free-hold or ground as Tables Dormant Furnances Fat 's in the Brew-house or Dye-house and the Box or Chest wherein the Evidences are the Hawks and the Hounds the Doves in the Dove-house the Fish in the Pond and the Deer in the Parke and such like He shall be charged by specialty for the debts of his Ancestour so long as he hath assets if the Executor or Administrator have not sufficient No Law nor Statute doth charge the Heir for the wrong or trespass of his Father but by express words Widow THe Widow shall have all her apparell her bed her copher her chains borders and Jewels by the honorable Custome of the Realm except her Husband unkindly give any of them away or be in debt that it cannot be paid without her Bed c. yet she shal have her necessary apparell What things are Arbitrable and what not THings and Actions personall incertaine are Arbitrable as Trespasse taking away of a Ward c. But things certain are not arbitrable but when the submission is by specialty if they be not joyned with others incertain as debt with trespass c. Matters concerning the common-wealth some are not arbitrable as criminall offences felonies and such like concerning the crime In the submission three things are to be regarded First that it be made in writing with the parties Covenants or bonds subsequent and sufficient to binde them their heires Executors and Assignes to performe the Award which shal be thereupon made that both the Arbitrators may know their power and the parties revoke not their power For all is void that is not contained in the Submission or necessarily depending thereupon And the Arbitrators labour lost if they want means to compell the same to be executed Secondly that there be power given to them sufficient to do all things necessary for the ordering of the controversies as to appoint times and places for their meetings to examine and decide the matters committed and to bring their parties with their proofs evidences and witnesses thither together before them and to punish the place defective and to expound and correct such doubtfull sentences and questions as may arise upon their Award afterwards inconvenient to either parties contrary to equity and the Arbitrators good meaning which inconveniencies not before by them seene at the making of the Award Tempor is filia veritas Thirdly convenient time and place are to be limitted for the yeelding up their Award to the parties or to their assignes Six things to be regarded in an Arbitrement 1. THat it be made according to the very submission touching the things committed and every other circumstance 2 That it be a finall end of all controversies committed 3 That it appoint either partie to give or doe unto the other something beneficiall in appearance at least 4 That the performance be honest and possible 5 That there be a mean how either part by the Law may attain unto that which is thereby awarded unto him 6 That every partie have a part of the Award delivered unto him For if it faile in any of these points then is the whole Arbitrament voyde and of none effect Examples there of 1 AN Award that the parties shall obey the Arbitrament of A. M. is void for power may not be assigned 2 An Award that any of the parties shall be bound or do any other Act by the advice of the Arbitrator is not good except it be in the submission so but that the parties shall be bound or make assurance by the advise of Counsel is good 2 An Award that the parties shall be non-suited is not good because it is no final end for the party may begin again that the party do withdraw his sute is good If the submission be of divers things and the Award onely of some of them yet is the Award good for that part as if the Submission be of all Actions real and personal onely or if it be onely de possessione 3 If to submit themselves to the Arbitrament of all trespasses and it is awarded that the one shall make amends to the other and nothing is awarded for the others benefit this Award is void So it were if one of them should go quite against the other if the Submission were not by bond for an Award must be final obligatory and satisfactory to both parties An Award that either party shall release to the other all actions and that because the one hath trespassed more then the other he shall pay to the other first is good In debt or trespass of goods taken that the Defendant shall retain part and the Plaintiffe to have the rest is not good 4 An Award that one of the parties shall do an act to any Stranger the act is void if the parties be not bound Or if it be that he shall cause a Stranger to enfeoffe or be bound to the other partie because he hath no means to compel the stranger 5 An Award is void if it be neither executed nor any means by law for the execution thereof as if it should be awarded that one should pay the other 10 pounds this is good for he may recover the same by an action of debt But if it were awarded the one should deliver to the other an acre of Land or do such like act Executory it were void if it be not delivered straight-way or provision made by bond or otherwise to compel the payment thereof according to the Award if the submission be not by specialty 6 Indentures of Arbitrament must be made of so many parts that every person may have a part Arbitramentum aequum tribuit cuique suum AN Award is commonly made by Lay-men and shall be taken according
to him and his heires until B. die without heire of his body for in the one case the Donor hath but an Estate Tayle and in the other a Fee simple determinable hath a possibility of Revertor for if B. die without heire of his body then whether A. be living or dead shall revert to the Donor but such possibility of Reversion for he that hath but such a possibility hath no Estate nor hath he power to give his possibility but in the other case the Donor hath Estate in Fee and therefore he hath power to dispose thereof at his pleasure Remainder A Remainder is a remnant of an estate disposed to another at the time of creation of such particular Estates whereupon it doth depend as if S. seised of lands in Fee demiseth the same to B. for life the remainder to C. and the heirs of his body the remainder to D. and his heirs In this case I. S. hath a particular Estate of the Lessor is then also disposed to C. and D. ut supra whereby B. hath an Estate for life C. a Remainder in Tail and D. a Remainder in Fee depending in order upon the particular Estate in possession and in every Remainder five things are requisite First That it depend upon some particular Estate Secondly That it pass out of the Grantor Donor or Lessor at the time of the creation of the particular Estate whereon it must depend Thirdly That it veste during the particular Estate or at the instant time of the determination thereof Fourthly That when the particular Estate is created there be a Remnant of an Estate left to the Donor to be given by way of Remainder Fifthly That the person or body to whom the Remainder is limitted be either capable at the time of limitation thereof or else in potentia propinqua to be thereof capable during the particular Estate If Lands be given to I. S. and his Heirs the Remainder for default of such Heir to I. D. and his Heirs that Remainder is void because it doth not depend upon any particular Estate But if Lands be given to I. D. the life of I. D. the Remainder to I. B. his Remainder is good for it is not limited to depend upon a Fee-simple but upon a particular Estate which is onely called an Estate for life of I. B. descendable if Lands be given to B. for 11. years if C. do so long live the Remainder after the death of C. to D. in Fee this Remainder is void for in this case it cannot pass out of the Lessor at the time of the creation of the particular Estate for years but if a Lease be made to B. for life the Remainder to the Heires of C. who is then living this Remainder is good upon a contingency that if C. dye in the life of B. for that Remainder may well pass out of the Leassor presently without be yaunce without any inconveniency because onely the inheritance separated from the Free-hold is in abeyance if Lands be given for life with a Remainder to the right Heirs of I. S. and the Tenant for life dyeth in the life of I. S. this Remainder is void because it died not vest or settled either during the particular Estate or at the time of the determination thereof for until I. S. die no person is thereof capable by the name of the Heir But if Lands be given to I. S. for terme of his life the Remainder to his right Heir in the singular number and the Heirs of his body and after I. S. hath issue a Son and dyeth that is a good Remainder and the Son hath thereby an Estate Tail for although it were unpossible that such Remainder should vest during the particular Estate because during his life none could be his Heir yet it might be and did vest at the instant of his death which was at the time of his determination of the particular Estate Concerning the fourth thing if a man seised of Lands in Fee granteth out of the same a Rent or Common to Pasture or such like things which before the grant had no being to I. S. for terme of life the Remainder to I. D. in Fee this Remainder is void because of this thing Granted there was no Remnant in the grant to dispose And because some heretofore have been of opinion that albeit the same cannot take no effect as another Grant of a new Rent or Common Vtres magis valeat quam operat This is a rule in Law that a thing enjoyed in a superior degree shall not pass under the name of a thing in any inferior degree and therefore if Lands be given unto two persons and unto the Heirs of one of them unto the Husband and Wife and Heir of the Husband and he that hath the Estate of Inheritance granteth the Version of the same Land to another in Fee such Grant is void because the Grantor was thereof seised in a superiour degree viz. in Possession and not in Reversion as appeareth 22. Ed. 4. fol. 2 13. Ed. 3. Brook title of Grants 137. And concerning the first and last thing if a Lease be made of Land for term of life the Remainder to the Major and Commonalty of D. whereas there is no such Corporation therein being this Remainder is meerly void albeit the Kings Majesty by his Letters Pattents do create such Corporations during the particular Estate for at the time of such grant the Remainder was void because then there was no such body corporate thereof capable or potentia propinqua to be created and made capable thereof during the particular Estate but the possibility thereof was then forraign and probably intended The like law is if a remainder be limited to I. the Son of T. S. who had then no Son and afterwards during the particular Estate a Son is born who is named John yet this Remainder is void for at the time of such a Grant as was not to be probably in tender that T. S. should have any Son of that name Also before the dissolution of Abbies if a Lease of Land were made to I. S. for life the Remainder to one that then was a Monk such Remainder was void for the cause before alledged albeit we were deraigned during the particular Estate But if such Remainder had been limited to the first begotten Son of I. S. it had been good and should accordingly have vested in such a Son afterwards born during the particular Estate Rights A Right in Land is either cloathed or naked a Right cloathed is when it is wrapped in a possession Reversion or Remainder a naked Right which is also most commonly called a Right is when the same is separated from the possession or Remainder by dissessin discontinuance or the devesting and separating of the possession as for example if a Lease of Land be made for life to I. S. the Remainder to I. D. in Fee in this case I. S. hath a Right cloathed with a Remainder
But if a Stranger that hath no Right or Title doth in the same case enter into the Land by wrong and put I. S. out of possession such entry by wrong is called a disseisin and therefore the possession is moved from the Right by reason thereof the Disseisor is seised of the Land and I. D. hath also the like naked cloathing to the Remainder by such dissessin is likewise devested and plucked out of him cannot be revested in him during the Right of such particular Estate unless the possession of the particular Tenement but therewith revested which must be by this entry or recovery by action and by such entry of the particular Tenement or by his Recovery with execution the Remainder shal be invested as well as the particular Estate and so there is a Right in goods and chattels as well as Lands Tenements and Hereditaments which is also cloathed with a possession so long as the Rightful proprietor hath the same but if another doth take them from him by wrong he now hath onely a naked Right to the same which cannot be by him granted for the cause before alledged but yet he may release his Right there unto him that is thereof possessed for the same reason that is before alledged if a release of Right happen to be forfeited to the King his Highness may grant the same by his Prerogative FINIS CERTAIN OBSERVATIONS CONCERNING A DEED OF FEOFFAMENT By T. H. Gent. Cujus posse est velle LONDON Printed Anno Dom. 1651. CERTAIN OBSERVATIONS CONCERNING A DEED OF FEOFFAMENT The Premisses YOU may finde in the Premisses First The direct nomination as well of the Feoffor as of the Feoffee together with their places of residence habitation or dwelling and their qualities estates additions or conditions Secondly The certain expressement and setting down of the Lands conveyed In Com. Norff. Comitatus dicitur a comitando of accompanying together for generally at Assises and Sessions those of that County where such Assises or Sessions are kept use to be impannelled upon Juries c. for trial of issue taken upon the fact betwixt party and party and not those in another County and it is a common presumption that al persons within their Counties take notice of such things as are there publickly don hereupon it hapneth that where Lands c. lie in divers Counties if they be conveyed by Feoffament c. livery of seisin must be made in every County where any parcel of the lands c. do lie Otherwise it is of two parcels of land in one and the same County The name County is in understanding al one with Shire which is so called from dividing and either of them contain a certain portion of the Realme which is parted into Counties or Shires for the better government thereof and the more easie administration of Justice hence it cometh to pass that there is no parcel of this Kingdome which lieth not within the circuit or precinct of some County or Shire There are reckoned in England 41 Counties or shires and in Wales 12. The County of Northfolke lying Northward is so called in opposition to Suffolke which lyeth towards the South each one in respect of other gaineth his name The addition given to the Feoffor you may perceive to be Yeoman the Etymology wherof Mr. Verstegan fetcheth from Gemen a word anciently used amongst the Teutonicks which as my Authour saith signifyeth vulgar or common and so the letter G. by corruption being turned into the letter Y. instead of Gemen we say and read Yemen or Yeomen Others how probably I dare not affirm derive it by contraction from these two words viz. Young Men. Famous Master Cambden in his Britannia after he hath reckoned up sundry degrees both of Nobility and Gentry ranketh Yeomen in order next Gentlemen naming them Ingenuous in which sence I apprehend Yeomen to be mentioned in a certain Statute made 16 R. 2. and in divers other Statutes And although the derivations of words be conveniently required in the Law in every liberal Science for ignoratis termiignoratur ars yet to use the expression of a learned Divine though spoken in another case Melius est dubitare de occultis quam litigare de incertis So I must leave you to your own conceit concerning the originall of the word Yeoman having onely set you down one or two opinions about it however I must not forget what Sir Thomas Smith saith in his Repub. Anglorum who very truely and properly calleth him a Yeoman whom the Laws of England call legalem hominem that is to say a free man born and M. Lambert in his Eirenarcha will excellently inform you who are and who are not probi legales homines There is no speciall but only a generall consideration expressed in the Feoffament neither of which as I conceive is in such case absolutely materiall though I may say formall in regard of the notoriety of deeds of Feoffament c. for livery and seisin as shall be said afterwards is essentially required to make them perfect which cannot be without the knowledge of others besides the parties themselves and a Feoffament doth thereby always import a free and willing consent otherwise peradventure it might have happened in a Bargain and sale before 27. H. 8. cap. 16. for the better illustration whereof take this example You and another man agree together theat you shall give him a certaine summe of money for a parcell of Land and that he shall make you an assurance of it you pay him the money but he maketh you no assurance in this case although the state of the Land be still in him nevertheless the equity in conscientia boni viri is with you which equity is called the use for which until the 27. H. 8. cap. 10. there was no remedy as saith Sir Francis Bacon and that very truly except in the Court of Chancery but the same Statute conjoyneth and annexeth the Land and the use together so you by this means for the consideration have the Land it self without any further Conveyance which is called a bargain and sale But those grave Senators and worthy States men who made the said Act of the 2â— H. 8. cap. 10. for the transferring of uses into possession wisely fore-seeing that it would be very inconvenient and prejudicious nay mischevous that mens possessions should upon such a sodain by the payment of a little money be transported from them and perhaps in a Tavern or Ale-house and upon straynable advantages did discreetly provide in the same Parliament the said Act of 27. H. 8. cap. 16. that Lands c. upon the payment of money as aforesaid should not pass without a Deed indented and inrolled as by the purport of the same Act may appear Now seeing that before the said Act of 27 H. 8. c. 16. Lands might pass by bargain and sale upon consideration without deed indented and inrolled and might not pass without consideration in such
manner therefore I have heard Lawyers say that consideration is still required in a bargain and sale though it be by deed indented and inrolled according to the same Statute Sure I am that regularly in a deed of Feoffament it is not so as formerly is declared and for the reason before expressed Dedisse The word dedi by force of an act of Parliament made 4. Ed. 1. c. 4. commonly called the Statute de Bigamis implyeth a warranty to the Feoffee and his Heires during the life of the Feoffor whereupon Fitz Herbert in his Natura brevium fo 134. h. puts a case to this effect viz. If a man give Lands to one in Fee by Deed by the words dedi concessi c. hereby he shal be bound to warrant the Lands of the Feoffee by vertue of those words and if the Feoffee be impleaded he shall have his writ of Warrant ' Chart. against the Feoffor by reason of the words Dedi concessi c. but not against his Heire for the Heire shal not be bound to Warranty except the Father binde himself and his Heires to Warranty c. by express words in the deed I know some alledg that because as well the Statute as Fitzh mention not onely dedi but concessi also therefore the one without the other implyeth no warranty to whom it may be answered that the Statute it self doth plainly prove against them for the conclusion thereof hath these words ipse tamen feoffator invita sua ratione proprii doni sui tenetur warrantizare and also the Testimony of Sir Edward Coke may be produced herein who affirmeth that the Statute of Bigamis anno 14. Eliz. in the Court of Common Pleas was expounded as above is mentioned namely that dedi did imply the Warranty and Mr. Perkins cap. 2. saith that dedi in a deed of Feoffament comprehendeth in it a Warranty against the Feoffor and so doth not the word Concessi Concessisse I conceive the word concessi in Feoffaments and Grants the implyed warranty excepted which dedi creates to be of the same effect with dedi also with confirmavi especially in some cases to which purpose hear what Littleton speaketh in his Chapter of Discontinuance Also saith he in some case this verbe dedi or this verbe concessi hath the same effect in substance and shal enure to the same intent as the verbe confirmavi as if I be disseised of a carve of Land and I make such a deed Sciant presentes c. quod dedi to the disseisor c. or quod concessi to the said disseisor the said carve c. and I deliver onely the deed to him without any livery of seisin of the Land this is a good confirmation and as strong in Law as if there had been in the Deed this verb confirmavi c. Liberasse The word Liberavi I take to be of the same nature with Tradidi which I have often seen in Feoffaments whereof it is remarkable that Hephron the Hittite when he assured the field of Machpelah to Abraham Gen. 32. 11. used the word trado agrum trado tibi that is to Abraham as Hieromes Translation reads it Feoffasse This word cometh from feudum or feodum which signifieth Fee and is alwayes or for the most part used in Feoffaments as participating of the same nature Confirmasse Concerning the word confirmo somewhat may be gathered from what hath been spoken about the Verb concessisse yet I cannot forget how Hierome renders the expresment of the said assurance of the said field of Machpelah to Abraham for a possession in these words co firmatus est ager c. Gen. 23. 17. And now I come to the second thing considerable in the premisses namely the Feoffee whose addition is generoso Generoso Generosus in English we read Gentleman which some derive from the two French words Gentil-houme denoting such a one as is made known by his birth stock and race Sir Tho. Smith calleth all those Gentlemen that are above the degree of Yeomen whence it may be concluded that every Noble-man may be rightly termed a Gentleman sed non vid versd Master Cowel conceiveth the reason of the appellation to grow because they observe Gentilitatem suam the propagation of their blood by giving or bearing of armes wherby they are differenced from others and shew from what Family they are descended Haeredi assignatis suis Some will have an Heir so called quia haeret in haereditate or quia haeret in se haereditas but to let such conceits of witty invention pass it is certain that an Heir is so called from the Latin word Haeres Littleton in his Chap. of Fee-simple saith that these words his Heirs onely make the estate of inheritance in all Feoffaments and Grants c. Sure then it is necessary for him that purchaseth Lands c. in Fee simple to have the Feoffament run to himself haeredibus suis for if it run onely to himself assignatis suis although livery and seisin be made accordingly and agreeable to the deed yet thereby onely an estate for life shall pass because there wanteth words of Inheritance and without livery and seisin in the case aforesaid onely an Estate at Will shall pass And the reason why the Law is so strict in this thing as in many others for to prescribe and appoint such certain words to create and make an estate of inheritance is as Master Plowden saith in his Commentaries for the eschewing and avoiding of incertainty the very Fountain and spring from whence floweth all manner of confusion and disorder which the Law utterly contemneth and abhorreth what herein hath been said is to be apprehended and understood of persons in and according to their natural capacities Yet perhaps an estate of inheritance may sometime pass in a Deed of Feoffament by words which may have reference and will relate to a certainty for Certum-est quod certum reddi potest as for example You Enfeoffe me and my Heirs of a certain piece of Land to hold to me my Heirs c. and I re-enfeoffe you in as large ample and beneficiall manner as you enfeoffed me in this case they say you have a Fee simple for the reason above expressed So I come next to see what observations the Deed of Feoffament further affordeth Totam ill pec tre cont Very necessary and convenient it is in deeds of Feoffament c. to have the Lands c. thereby intended to be conveyed certainely and expressely to be set downe aswell how much by estimation in quantity they doe containe as the quality of the same whether Meadow Pasture c. being the species of Land which is the genus and the place where and manner how they exist and lye the better to shunne and avoid doubt and ambiguity which oftentimes stirre up occasions of unkind suites and contentions betwixt party and party I know that Grammarians reading the word peciam will be ready
hereupon it will not be much devious or out of the way to make some mention of those fashions which in the manner of sealing and subscribing of deeds have been anciently used by our Ancestors Some report that the Saxons in their time before the Conquest used to subscribe their names to their Deeds adding the signe of the crosse and setting down in the end the names of certain witnesses without any kinde of sealing at all But when the Normans came in as men loving their owne Country guises they per petit petit changed that custome as also many others which they found here and Ingulphus who was made Abbot of Croyland in an dom 1075. seemeth to confirme this opinion in these words Normanni cheirographorum confectionem cum crucibus aureis aliis signaculis sacris in Anglia firmari solitam in cera impressa mutant Yet I have read of a sealed Charter in England before the Conquest namely that of St. Ed. made to the Abby of Westminster yet surely this doth not altogether repugne that which hath been formerly said for I have seen in Master Fabians Chronicle and elsewhere that Saint Ed. was educated in Normandy and t is not unlikely but he might in some things incline to their fashions The French-men have a proverbe Rome n'a este bastie tout en un jour and we in England use the same namely Rome was not built in one day So it cannot be conceived that the Normans in an Instnat did alter the Saxon custome wholly in this particular but that it did change by degrees and perhaps at the first the King and some nigh unto and about him did use the impression of a Seale which I am somewhat perswaded to beleeve from a certain story which I have heard concerning Richard de Lucy chief Justice of England who in the time of H. 2. is said to have chidden an ordinary man because he had sealed a Deed with a private Seal Quant ceopertaine al Roy Nobility solement In the dayes of Edward the third sealing and Seales were very usuall amongst all men for proofe whereof I need not produce any other testimony but the Deeds themselves whereof almost every man hath some But I must remember that Sir Ed. Coke in the first part of his Institutes fo 7. a. seemeth to overthrow the former opinions about the first using of Seales in England The sealing of Charters and Deeds saith he is much more ancient then some have imagined for the Charter of King Edwin brother of King Edgar bearing date an dom 956. made of the Land called Jecklea in the Isle of Ely was not onely sealed with his owne seale which appeareth by these words Ego Edwinus gratia Dei totius Britannicae telluris Rex meum donum proprio figillo confirmavi but also the Bishop of Winchester put to his seal Ego Aelfwinus Winton ' Ecclesiae divinus speculator proprium sigillum impressi And the Charter of King Offa whereby he gave the Peter-pence doth yet remain under Seal The either of which two Charters are much more ancient then that of Saint Edw. before mentioned yet happily there may be some reason probably affirmed why as well King Edwin and the Bishop of Winchester as Offa who was King of Mereia about the yeare 788. did annex their Seales to their Charters which no King of England or Nobleman did before or after them except Saint Ed. untill the comming in of the Conquerour that ever I could learne heare or read of in any Authour Neverthelesse I must of necessity leave the search of such reason to others better studyed in the Commentations and alterations of persons times and customes then I my selfe however I never heard any one deny but that the frequent use of sealing Deeds did commence in the time of Ed. 3. and was not ordinarily used amongst private men untill then as hath been formerly touched Of the Date Dat' IN this clause the Stile of the King at large the yeare of his Reigne and the yeare of our Lord God according to the computation and account of the Church of England together with the day of the moneth are expressed In former times Deeds were often made without date and that of purpose that they might be alledged within the time of prescription as Sir Ed. Coke in his said Booke of Institutes fo 6. very worthily observes and moreover that the date of Deeds was commonly added in the Reigne of Ed. 2 and Ed. 3. and so ever since to whom I refer you who in the place last quoted hath very excellent matter and observations thereabouts And thus to perform what I promised I will speak a word or two concerning Livery of Seisin and so conclude Livery of Seisin LIvery of Seisin is a ceremony in Law used in the conveyance of an Estate of Freehold at the least in Lands and other things corporeal but in a Lease for years at Will c. Livery of Seisin is not required it being onely a Chattel and no Free-hold By Livery of Seisin the Feoffor doth declare his willingness to part with that whereof he makes the Livery and the Feoffees acceptance thereof is thereby made known and manifest The Author of the new Termes of the Law saith that it was invented as an open and notorious thing by means whereof the Common people might have knowledge of the passing or alteration of Estates from man to man that thereby they might be the better able to try in whom the right and possession of Land's and Tenements were if they should be impanelled on Juries or otherwise have to do concerning the same The usual and common manner in these daies of delivering of Seisin I know to be so frequent that of purpose I will omit it But I pray you note with me before I make an end that Livery of Sesin is of 2 sorts viz. Livery of Seisin in Deed and Livery of Seisin in Law which is sometimes termed livery of Seisin within the veiw Livery of Seisin within the veiw cannot be good or effectual except the Feoffee doth enter into the Lands c. whereof the Livery of Seisin was made unto him in the life time of the Feoffor it is not to be passed over in silence that a Livery in Law may sometimes be perfected by an entry in Law as if a man maketh a deed of Feoffament and delivers Seisin within the view the Feoffee dares not enter for fear of death but claimes the same this shall vest the Freehold and inheritance in him to which effect you may see the opinion of certain Justices 38. Assis Pl. 23. upon a verdict of Assise in the County of Dorc. And I conceive that this vesting of a new Estate in the said case in the Feoffee making his claim were he dares not enter stands upon the same reason for contrariorum eadem est ratio that the revesting of an ancient Estate and Right in the disseisee doth by such claim whereof you may read plentifully in Littleton his Chapter of Continual Claim It is worth the observation that no man can constitute another to receive Livery for him within the view nor yet to deliver as I have heard my Master say for none can take by force or vertue of a Livery in Law but he that taketh the Free-hold himself è contra Otherwise it is to take and give Livery of Seisin in Deed for there aswel the Feoffee in the one case may ordain and make his Attorney or Attorneys in his name and stead to take Livery as the Feoffor in the other case to give Livery Concurrentibus iis quae in jure requiruntur And now let Delivery of the Deed to be added to the sealing thereof and the state executing of the Lands thereby conveyed and then I presume none will refuse to allow that every thing hath been named which is essentially required to the perfection of a bare Deed of Feoffament and although I have mentioned the delivery of the Deed in the last place yet it is not the least thing or of the least consequence or moment for after a Deed is sealed if it be not delivered est anul purpose it is to no purpose and the delivery must be by the party himself or his sufficient warrant So it may be gathered from what hath been said that sealing of Deeds without Delivery is nothing and that Delivery without Sealing will make no Deed but that both Sealing and Delivery must concur and meet together to make perfect Deeds I hope such as are present at the Sealing and Delivering of Deeds of Feoffament and the State executing thereupon will not forget to subscribe their names or markes as witnesses thereof whereby they may the better be inabled to remember what therein hath been done if peradventure there shall be occasion to make use of them And it is not amiss here before I end to observe that although upon Deeds of Feoffament c. it was not usual before the latter end of Hen. 8. or thereabouts to endorse or make mention upon such Deeds of the Sealing and Delivering of the Deeds or state executing of the Lands c. intended thereby to be conveyed for I my self have many Deeds of Feoffament which do testifie as much yet it is to be credibly supposed and not without some manifest probability that such persons whose names are inserted after a certain clause in such Deeds beginning with hiis testibus were eye-witnesses of all Thus desiring you to take notice that I have called the said six parts of the Feoffament formal because they are not absolutely of the essence of Deeds c. manebo in hoc gyro I will here conclude requesting all those to whom any sight hereof shall or may happen to come friendly to admonish me of my failings herein Whereby they shall ever engage me thankfully FINIS
without a Deed is void if the Reversion be not in the reserâ—or if a Rent be granted from the Reversion it is a Rent-seck He which is not seized of a Rent-seck is without remedie for the same The gift of a peny by the Tenant in name of seizin of a Rent-seck is a good possession and seizin No Rent may be reserved upon any Feoffment Gift or Lease but only to the Donor and his heires not to any stranger A Rent-charge is extinct by the Grantees purchase of parcell of the Land but by the purchase of any of his Ancesters it shall not it shall be apportioned like Rent-service according to the value of the land but if the whole Land discend of the same inheritance the rent is extinguished By the grant of the Reversion the rents and Services pass If Rent be granted to a man without more saying he shall have it for terme of his life If the Lord accept of Rent or service of the Feoffment he excludeth himself of the Arrerages of the time of the Feoffment For a Rent-charge behind one may have an Action of annuity or distrain Distress For what when and where a man may distrain A man may distrain for a Rent-Charge Rent-Service Herriot service and all manner of Service as Homage Escuage Fealtie Suite of Court And Relief c. HErriot custome must be seized and for Amerciaments in a Leete upon whose ground soever it be in the liberty a man may not distrain for rent after the Lease is ended nor have debt upon a Lease for life before the estate of Frank-Tenement be determined A man may not distrain in the night but for dammage Feasant A man may not distrain upon the possessions of the King but the King may distrain of any Lands of his Grantee or Patentee A man may not distrain the beasts of a stranger that come by escape untill they have been Levant and Couchant on the ground but for dammage Feasans A man may not distrain the Oxen of the Plough nor a Mil-stone nor such like that is for the good of the Common-wealth nor a Cloke in a Taylors shop nor victuals nor corne in sheafes but if it be in a Cart for dammage Feasans A distress must be always of such things as the Sheriff may make a Replevin A man may not sever horses joyned together or to a cart If a man put cattell into a pasture for a week and afterwards I. N. doth give him notice that he will keep them no longer and the owner will not fetch them away I. N. may distrain them dammage Feasans If a man take beasts dammage Feasans and driving them by the high way to a pound the beasts enter into the house of the owner and the taker prayeth the delivery of them and the owner will not deliver them a Writ of Rescous lyeth If a man distrain goods he may put them where he will But if they perish he shall answer for them If cattell they ought to be put in a common pound or else in an open place where the owner may lawfully come and feed them and notice given to him thereof and then if they die it is in default of the owner Cattell taken dammage Fesans may be impounded in the same land but goods or Cattell taken for others things may not Sheep may not be destreined if there be a sufficient distress besides No man shall drive a distress out of the County wherein it was taken No distress shall be driven forth of the hundred but to a pound Overt within three miles A distress may not be impounded in several places upon pain of five pounds and treble dammage Fees for impounding one whole Distress Four pence The executor or administrator of him which had Rent or Fee-Farme in Fee in Fee-tayle or for life may have debt against the Tenant that should pay it or distrain and this is by the Statute 32 H. 8. So may the husband after the death of his Wife his Executor or Administrator So may he which hath Rent for another mans life distrain for the arrerages after his death or have an action of Debt 32. H. 8. But if the Landlord will distrain the goods or cattell of his Tenant and do sell them or worke them or convert them to his own use he shall be executor of his own wrong CHAP. XXIII Diseizin of Rents Three causes of Diseizin of Rents-Service Rescous Replevin Inclosure Foure of Rent-Charge Denyer Inclosure Forestalling is a Diseizin of all FOrestalling is when the Tenant doth with force and armes way-lay or threaten in such manner that the Lord dareth nor distrain or demand the Rent Denyall is if there be no distress on the Land or if there be none ready to pay the Rent c. And of such diseizins a man may have an action of Novell diseizin against the Tenant and recover his Rent and arrerages and his dammage and costs and if the Rent be behind another time he shall have a Redisseizin and recover double dammage Rescous and Pound-breach IF the Lord distrain when there is no rent nor service behind the Tenant may not rescue otherwise if another distreine wrongfully but no man may break the Pound although he did tender amends before the cattell were impounded If the Lord come to distrain and see the beasts and the servant drive them out of his fee the Lord may not have Rescous because he had not the Possession but he may follow them and distrain but not dammage feasans CHAP. XXIV COMMON COMMON is the right that a man hath to put his beasts to pasture or to use and occupy ground that is another mans There be divers Commons viz. Common in gross Common appendant Common appertinant Common because of neighbourhood viz. the termes of Law The Lords of Wastes Woods and pasture may approve against their Tenants and neighbours with common appertenant leaving them sufficient Common and pasture to their Tenants As if one Tenant surcharge the Common the other Tenants may have against him a Writ de admensuratione pasturae But not against him that hath Common for beasts without number neither may the Lord enclose from such Tenants if he do the Tenant may bring an assize against him and recover Treble dammage but the Lord may have a quo jure and make the Tenant shew by what title he claimeth CHAP. XXV WAYES The Kings high-way is that which leadeth from village to village A common high-way is that which leadeth from a village into the fields A private way is that which leadeth from one certain place unto another 3. Ed. 3. IN the Kings high-way the King hath onely passage for himself and his people and the Frank-Tenement and all the profits are in the Lord of the soyle as they be presented at the Leete Of a Common high-way the Frank-Tenement and profits are to him that hath the land next thereto adjoyning and if it be stopped and I be damnified by it I have no remedy
rather beat him then suffer him to take or carry them away CHAP. XLIV How far other mens Contracts and misdemeanours do binde us A MAN shall be bound by many Trespasses of his wife but not to sustain corporal punishment for it For Murder Fellony Battery Trespass borrowing or receiving of money in his Masters name by a Servant the Master shall not be charged unless it be done by his command or came to his use by his assent If I command one to do a Trespass I shall be a Trespassor or otherwise if I do but consent There is no accessary in Trespass We shall be charged if any of our family lay or cast any thing into the high way to the noisance of his Majesties Liege People Every man is bound to make recompence for such hurt as his beasts shall doe in the corne or grass of his neighbour though he knew not that they were there and for his Dogs Beares c. if they hurt the goods or Chattell of any other for that he is to govern them A man shall not be charged by the contract of his wife or his servant if the thing come to his use having no notice of it But if he command them to buy he shal be charged though they come not to his use or had notice therof If a Wife or Servant use to buy or sell if he sell his Masters Horse and exchange his Oxe for wheat that cometh to his Masters use his Master may not have an action of Trespass for it but he shall be charged for the corn and the other need not to shew that he had warrant to buy for him If a man-servant that keepeth his shop or that useth to sell for him shall give away his goods he shall have Trespass against the Donee But if I deliver my Goods to another to keep to my use and he do give them away I shall not for the Donee had notice whose goods they were as in the case of the servant If a man make another his general receiver which receiveth money and maketh an acquittance and payeth not his Master yet that payment dischargeth the debtor If a servant keep his Masters fire negligently an action lieth against the Master Otherwise if he bear it negligently in the street If I command my servant to distrain and he doth ride on the distress he shall be punished not I. If a man command his servant to sell a thing that is defective generally to whom he can sell it deceit lieth not against him Otherwise if he bid him sell it to such a man it doth A Contract or a promise made to the wife is good when the husband doth agree so it is to a servant and it shall be said to be made to the husband and Master himself If a man taketh a wife that is in debt he shall be charged with her debts during her life if she die he shall be discharged CHAP. XLV Wills and Testaments Having hitherto treated of such contracts as de take effect in the life time of the parties with their differences it is now to deale with Instruments which take effect after their Deaths that those things which they have preserved with care and gotten with paines in their life might be left to their posterity in peace and quietnesse after their Death of which sort are last Wils and Testaments There are two sorts of Wils Written and Nuncupative ANuncupative Testament is when the Testator doth by Word onely without writing declare his Will before a sufficient number of Witnesses of his Chattels onely for Lands passe not but by writing It may for the better continuance after the making be put in writing and proved But it is still a Testament Nuncupative A written Testament is that which at the very time of the making thereof is put in writing by which kind of Testament in writing only Lands and Testaments pass and not by word of mouth only Two things are required to the perfection of a Will by which Lands pass viz. First writing which is the beginning Secondly the death of the Devisor which is the finishing In a Will of Goods there must be an Executor named otherwise of Lands A man may make one Executor or more simply or conditionally for a time or for parcel of his Chattels If no Executor be named then it still retaineth the name of last a Will and shall be annexed to the Letters of Administration in regard of the Gift Gavil kinde Lands may be devised by custome Lands bolden In Socage tenure all is devisable Knights Service 2 parts 3 in writing FEAR fraud and flattery three unfit accidents to be at the making of a Will A woman may make a Will of the goods of her husband by his consent and license by Word is sufficient and of the goods she hath as Executor without his consent but she cannot give them unto him A boy after his age of fourteen and a Maid after her age of twelve may make a Will of their goods and Chattels by the Civil Law The will of the Donor shall be alwayes observed if it be not impossible or greatly contrary to the Law A Devisor is intended Inops consilii and the Law shall be his Counsell and according to his intent appearing in his Will shall supply the defect of his words A Prerogative Will is five pound in another Diocess A man may not traverse the Probate of a Testament or Letters of Administration directly but he may say against the Testament that the Testator never made the party his Executor CHAP. XLVI DEVISES A Devise ought to be good and effectual at the time of the death of the Devisor The Devisee may not enter into the terme or take a Chattell but by the delivery of the Executor But he may sue for it in Court Christian Into Frank-tenement or inheritance he may enter Devisees are Purchasees as if a Lease for years be Willed to a man and his Heires the Heire shall have it for Heire is a name of purchase here A Reversion of Lands or Tenements will pass by the name of Lands and Tenements in a Devise If a man devise all his Lands and Tenements a Lease for years doth not pass where he hath Lands in Fee and also a Lease there otherwise it will If a man devise all his goods a Rent-charge which he had for years will pass and all other his personall Chattells And if a man give all his moveables to one he shall have all his Horses Cattell pans and personall chattells and all his immoveables to another he shall have all his Corn growing and fruit on his Trees and the chattells reall A man may devise Lands or goods to an Infant in the mothers belly or goods to the Church-wardens of D. There is great diversity where the property is devised and when the occupation is devised A man may devise that a man shall have the occupation of his Plate or other chattells during his life or