17. Four things be incident to a frank-marriage 1. That it be given for consideration of mariage c. 2. that the woman or man that is the cause of the gift be of the bloud of the donor 3. If the gift be made of a thing which lyeth in tenure as of Lands c. A rent Common c. That the donees hold of the donor at the time of the Estate in frankmarriage made 4. That the donees shall hold freely of the donor till the fourth degree be past fo 21 b. * These words in liberum maritagium did create an estate in fee simple at the common law And these are such words of art so necessarily required as they cannot be expressed by words aequipollent c. Sect. 18. * Feodum talliatum i.e. haereditas in quandam certitudinem limitata viz. Quel issue inheritra per force de tiels dones come longement lenheritance endurera A gift made to a man haeredi masculo de corpore suo Reg. Judic fol. 6. Haeredi unide corpore c. An exception from the rule that all estates Tail were fee simple at the common law 39 Ass pl. 20. Sect. 19. * Whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasors fol. 22. b. Vide Libr. Non est haeres viventis And no diversity when the law creates the estate for life and when the party A man seised of lands in fee by Indenture makes a Lease for life the remainder to the heires male of his own body this is a void remainder So it is of a gift intaile the remainder to his own right heires for the reversion is in the Ancestor who during his life beareth in his body all his heires And the donor cannot make his own right heire a purchaser of an estate taile without departing of the whole Fee simple out of him Vide Libr. Dier 156. If a man make a Feoffment in Fee to the use of himselfe in tail and after to the use of the Feoffe in Fee the Feoffee hath no reversion but in nature of a remainder albeit the Feoffor have the Estate taile executed in him by the Statute and the Feoffee is in by the common law Dier 362. b. Whosoever is seised of Land hath not only the estate of the land in him but the right to take profits which is in nature of the use therefore when he makes a Feoffment in Fee without valuable consideration to divers particular uses so much of the use as he disposeth not is in him as his ancient use in point of reverter Fol. 23. a. Vide Libr. Dier 12. Fealty is incident to every tenure exc frankalm and cannot be separated from it Sect. 20. Certain Rules touching degrees c The first is That a person added to a person in the line of consanguinity maketh a degree 2. So as how many persons there be take away one and you have the number of degrees 3. It is to be noted that in every line the person must be reckoned from whom the computation is made Vide Libr. gradus dicitur à gradiendo quia gradiendo ascenditur descenditur Fol. 24. a. Vide c. Sect. 21. Exempla illustrant non restringunt legem Aequitas est convenientia rerum quae cuncta coaequiparat quae in paribus rationibus paria jura judicia desiderat jus respicit aequitatem Aequitas enim est perfecta quaedam ratio quae jus scriptum interpretatur emendat Bract. lib. 4. Fo. 186. Sect. 22 23. De dones fait en le tail la volunt del donor seÌ„r observe And these words queux doient inheriter imply a diversity between a discent and a purchase Fol. 24. b. Vide libr. Br. t. done 42. t. nosme 1. 40. A gift is made to a man and to the heirs female of his body the donee is capable by purchase and the heir female by discent Fo. 25. a. Sect. 24. Quaecunque que ser inheriter per force d'un done en le tail fait as heirs males covient conveier son title tout per les heir males Fol. 25. a. Vide 28 H. 6. t. devise c. 18. 1. * A devise may create an inheritance by other words then a gift can yet cannot a devise direct an inheritance to descend against the rule of law Vide lib. In an Estate Tail c. The male must make his conveiance by males and the female by females If A hath issue a son and a daughter and dieth and the son hath issue a daughter and dieth and a Lease for life is made the remainder to the heirs females of the body of A. In this Case the daughter of A shall not take becaus she is not heir But albeit the daughter of the son maketh her conveiance by a male male she shall take an Estate Tail by purchase for she is heir and a female Fol. 25. b. 11 H. 6. 13. 9 H. 6. 25. Sect. 25. No cross remainder or other possibility shall be allowed by Law where an Estate is once setled c. and taketh effect As if Lands be given to two husbands and their wives and to the heirs of their bodies begotten they have a joint estate for life and several inheritances 24 E. 3. 29. a. Sect. 29. 30. 20 H. 6. 36. Vide lib. * 5 H. 4. 3. a. Fol. 26. b. A man by Deed gave lands to Em. late wife of I.M. habend c. praedict E. haered I. M de corpore ejusdem E. procreat In this case the son and heir of I.M. begotten on the body of Em took no Estate with Em. in the lands because he was named after the habendum A man seised of two acres of land in fee simple hath issue two daughters and dieth and the one coparcenor giveth her part to her sister and to the heirs of the body of her father In this case the donee hath an estate tail in the moity of the donors part for the donâ—â— is not entire heir but the donor is heir with the donee and she cannot give to the heirs of her own body and the donâ—â— hath the other moity of her sisters part for life Les heirs ses heirs differ For if lands be given to the son and to his heirs of the body of his father the son hath a fee simple But if the land be given to the son and to the heirs of the body of c. eÌ„ est ta f. 27. a. Sect. 31. Every estate tail within the statute of Westm 2. must be limited either by expresse words or words aequipollent of what body the heir inheritable shall issue The grant of a subject shall be taken most strongly against himself * Fo. 27. b. Vide libr. 18 Ass p. 5. Armories are descendible to the heirs males lineal or collateral CAP. III. Sect. 32. TEnant in Tail after possibility of issue extinct hath certain
be divers other limitations c. As if a rent charge be granted to A. and B. habendum to them two viz. to A. untill he be married and to B. untill he be advanced to a Benefice they be joynt-tenants in the meane time c. And if A. dye before marriage the rent shall survive but if A. had married the rent should have ceased for a moity sic è converso on the other side If an alien and a subject purchase lands in fee they are joynt-tenants and the survivorship shall hold place Et nullum tempus occurrit regi upon an office found 7 E. 4. 29. 11. H. 4. 26. Sect. 278. Omnis rati-habitio retrotrahitur mandato aequiparatur Nota That seeing Coadjutors Counsellors Commanders c. are all disseisors albeit the disseisor which is tenant dyeth yet the Assize lieth against the Coadjutor c. and tenant of the land though he be no desseisor The Demandant and others in a praecipe did disseise the tenant to the use of the others and the Writ did not abate for the Demandant was a disseisor but gained no tenancy in the land for that he was but a Coadjutor 50. E. 3. 2. A man disseised tenant for life to the use of him in the reversion and after he in the reversion agreeth c. he is a disseisor in fee for by the disseisin the reversion was divested which some say cannot be revested by the agreement of him in the reversion for that it maketh him a wrong doer and therefore no relation of an estate by wrong can help him Sect. 27. 9 Disseisin est properment lou un home enter eu asc ' terres c lou son entre nem pas congeable ousta celuy que ad franktenement c. This description c. is understood onely of such lands c. whereinto an entry may be made and not of Rents Commons c. Every entry is no disseisin unless there be an ouster also of the free hold as an Entry and a Claimer or taking of Profits c. 3 E. 4. 2. 34 Ass 11. 12. Pl. Com. 89. Parson de Honey-lane Now as there be joynt-tenants by Disseisin so are there joynt-tenants by Abatement Intrusion and Vsurpation Sect. 280. Nota que le nature de joyntenancy est que le survivor aūa solement lentier tenancy solunque tiel estate que il ad si le jointure soit continue c. mes auterment est de parceners Although survivorship be proper to joynt-tenants yet it is not proper quarto modo for if a man letteth lands to A. and B during the life of A. if B. dyeth A. shall have all by the survivor but if A. dyeth B. shall have nothing Two or more may have trust or authority committed to them joyntly and yet it shall not survive But with a diversity between a naked Trust c. and a Trust joyned to an estate or interest 2. There is a diversity between Authorities created by the party for private causes and Authority created by Law for execution of Justice Ex gr As if a man devise that his two Executors shall sell his land if one of them dye the survivor shall not sell it but if he had devised his lands to his Executors to be sold there the survivor shall sell it 39. Ass p. 17. 30 H. 8. tit Devise B. 31 Dyer 3 El. 190. Br. tit Cond 190. If a man make a Letter of Atturney to two to doe any act the survivor shall not doe it but if a Venire fac be awarded to four Coroners to impannel and return a Jury and one of them dye yet the other shall execute and return the same If a Charter of Feoffment be made and a Letter of Atturney to four or three joyntly or severally to deliver seisin two of them cannot make livery because it is neither by them four or three joyntly nor any of them severally 38 H. 8. Dyer 62 27 H 8. f. 6. But if the Sheriff upon a Capias directed to him make a Warrant to four or three joyntly or severally to arrest the Defendant two of them may arrest him because it is for the execution of Justice which is pro bono publico Pasch 45 Eliz. in Banco Reg. inter King Hobbes Not of that kind of the infidel of Malmsbury Sect. 281 282. Survivor holdeth place regularly as well between joynt-tenants of goods and chattels in possession or in right as of Inheritance or Free hold fo 182. a. Si un obligation soit f◠a plusors pur un debt celuy que survequist avera tout le debt ou duty issent est daverts Covenants Contracts c. Mes Jus accrescendi inter mercatores pro beneficio commercii locum non habet F.N.B. 117. E. 38. E. 3 7. Sect. 283. Terres sont dones a 2. homes a les heires de lour 2. corps engendres en cen case les donees ont joint estre pur lour 2. vies encore ils ont several inheritances entant que ils ne poient aver per nul possibility un heire enter eux engendre sicome home feme point aver c. Note albeit they have severall inheritances in taile and a particular estate for their lives yet the inheritance doth not execute and so break the joynt-tenancy but they are joynt-tenants for life and tenants in common of the inheritance in tail Here a diversity is implyed when the state of inheritance is limited by one Conveyance as in this case it is there are no severall estates to drowne one in another but when the states are divided into severall Conveyances their particular estates are distinct c. and the one drownes the other As if a lease be made to two men for terme of their lives and after the lessor granteth the reversion to them two and to the heirs of their two bodies the juynture is severed and they are tenants in common in possession and it is further implyed that in this Case of Littletons there is no division between the estates for lives and the severall inheritances because they cannot convey away the inheritance after their decease for it is divided onely in supposition of law and to some purposes the inheritance is said to be executed 12 E. 4. 2. b. If a man make a lease for life and after granteth the reversion to the tenant for life and to a stranger and to their heires they are not joynt-tenants of the reversion but the reversion by act of law is executed for the one moity in the tenant for life and for the other moity he holdeth it still for life the reversion of that moity to the grantee 39 H. 6. 2. b. And so it is if a man make a lease to two for their lives and after granteth the reversion to one of them in fee the joynture is severed and the reversion is executed for the one moity and for the other moity there is tenant for life
to avoid a collateâ—al Warranty or the lessor in that case may recover in an Assize and so as some have holden may the lessor enter in case of a lease for life to this intent to avoid a disâ—ent or a Warranty Dyer 19 El. Pl. Com. 374. 15 H 7 3 4. Iacobius Case 28. H 6 28. S 442. 45 E 3 21. If the disseisee make continual Claim and the disseisor dye seised within the year his heir within age and by Office the King is entitled to the Wardship albeit the entry of the disseisee be not lawful yet may he make continual Claim to avoid a discent and so in the like 7 H 6. 40. Con. Claim 1 Dounclers Case 5 E 4 4. No continual Claim can avoid a discent unless it be made by him that hath Title to enter and in whose life the dying seised was 22 H 6 37. 9 H. 4. 5. a. 15. E 4 22. a. Sect. 415. fol. 251. a. A continual Claim may be made as well where the lands are in the hands of a feoffee c. by Title as in the bands of a Disseisor Abater or Intruder by wrong Sect. 416. Note that a Forfeiture may be made by the alienation of a particular Tenant either in paiis or by matter of Record 1. In paiis of lands and tenements which lie in Livery where a greater estate is by liverâ— then the particular Tenant may lawfully make wherâ—by the reversion or remainder is divested vide S 581 609 610. 611 17 El. Dyer 339. 16. El. Dyer â—2â— A particular estate of any thing that lies in grant cannot be forfeited by any grant in fee by Deed for that nothing passes thereby but that which lawfully may pass 3â— E 3. Devise 21 15 E 4 9. vide S 608. But if Tenant for life or years of land the reversion or remainder being in the King make a feoffment in fee this is a forfeiture and yet no reversion or remainder is diâ—ested out of the King and the reason is in respect of the solemnity of the feoffment by livery tending to the Kings disherison 35 H 6 62. Tr. 32 El. in Informat ' de intrusion vers Rebinson Exchequers 2. By matter of Record and that by three manner of wayes 1. By Alienation 2. By Claiming a greater estate then he ought 3. By affirming the reversion or remainder to be in a stranger 1. By Alienation and that either divesting as by levying of a Fine or suffering a Common Recovery of Lands whereby the reversion or remainder is divested or not divesting as by levying of a fine in fee of an Advowson Rent Common or any other thing that lyeth in the grant And of this Opinion is Littleton in our Books and so note two diversities 1. Between a grant by Fine which is of Record and a grant by Deed in paiis and yet in this they both agree That the reversion or remainder in neither case is divested 2. Between a matter of Record as a Fine c. and a Deed recorded or a Deed inrolled for that worketh no forfeiture because the Deed is the Original 15 E. 4. 9. 2. By Claim and that may be in two sorts either Express as if Tenant for life will in Court of Record claim fee or if lessee for years be ousted and he will bring an Assize ut de libero tenemente or Implyed as if in a Writ of Right brought against him he will take upon him to joyn the Misce upon the meer Right which none but Tenant in fee simple ought to do So if lessee for years do loose in a Praecipe and will bring a Writ of Error for Error in Process this is a Forfeiture 15 E. 4. 29. 36. H. 6. 29. 2 H. 6. 9. 4. El. Dyer 9. H. 5. 14. 22 Ass 31. 18 E. 3. 28. 16. Ass 16. 3. By affirming the reversion or remainder to be in a stranger and that either actively or passively Actively by five manner of ways as 1. Tenant for life pray in aid of a stranger whereby he affirms the reversion to be in him 2. If he Attorn to the grant of a stranger and there note also a diversity between an Attornment of Record to a stranger and an Attornment in paiis for an Attornment in paiis worketh no Forfeiture 3. If a stranger bring a Writ of entry in casu proviso and suppose the reversion to be in him if the Tenant for life confess the action this is a forfeiture 4 If Tenant for life plead covinously to the disherison of him in the reversion this is a forfeiture 5. If a stranger bring an action of Waste against lessee for life and he plead Nul waste fait this is a forfeiture or the like 21 E. 3. â—4 a. 5 E. 4. 2. 24 H. 8. Forf br 87. lib. 2. fo 55 56. Bucklers Case 24. E. 3. 68. 1 H. 7. 15 Ass 3. Passively as if Tenant for life accept a Fine of a stranger Sur conusans de droit come ceo c. for hereby he affirmeth of Record the reversion to be in a stranger 3 M. Dyer 148. Note that the Right of a particular estate may be forfeited also and that he that hath but a Right of remainder or reversion shall take benefit of the forfeiture as if Tenant forlife be disseised and he levy a Fine to the disseisor c. fo 152. a. 13 E. 4 4. If Tenant for life make ale sâ— for life or a gift in Tail or a Feoffment in fee upon Condition and enter for the Condition broken yet the Forfeiture remaineth So it is of Tenant in Taâ—l apres possi ilitâ— c. tenant per le Curtesie c. Tenant for years Tenaâ—â—â—y staâ—ute Merchant c 39 Ass 15. 43 E. 3 Enter coâ—g 3 â—2 H 5. 7 39 E. 3. 16. 45 E 3. 25. If Tenaâ—â—â—or life in remaâ—â—der make continuall Claim and the Aliene â—f the first Tenant for life dye seised then may he in the remainder for life enter and the right of entry which he gained by his entry shall go to him in the remainder in fee in respect of the privity of the estate And so it is of him in the reversion in fee in like case for he is also privy in estate If Tenant iâ— Tail the remainder in fee with garr have Iudgement to recover in value and dye before execution without issue he in remainder shall sue Execution for hee hath right thereunto and is privie in estate So if a Seigniory be graâ—teâ—â—o one by Fine the grantee for life dyeth he in remainder shall have a per que servit for he hath right to the remainder and is privy in estate Sect 417 It is not sufficient to tell one generally what he should do but to direct him how and in what manner he shall do it Note that the entry of a man to recontinue his Inheritance or Freehold must ensue his action for recovery of the same Mich. 14 â—5 El. Rot. 1458. in the Earl of Arundels
if the disseisee disseise the heir of the disseisor albeit the heir recover the land against the disseisee yet shall he leave the preceding right in the disseisee So if a woman that hath right of Dower disseisâ— the heir and he recover the land against her yet shal he leave the right of Dower in her 5 Ass 1 10 Ass 16. 50 E 3 7 30 Ass â— E 3. â—ntry 56. Another diversity is to be noted when the meer right is subsequent and translated by act in Law there albeit the possession be recontinued yet that shall not draw the naked right with it as if the heir of the disseisor be disseised and the disseisor infeof the heir apparent of the disseisee being of full age and then the disseisee dyeth and the naked right descends to him and the heir of the disseisor recover the land against him yet doth he leave the naked right in the heir of the disseisee So if the discontinuee of Tenant in Tail infeoff the issue in Tail of full age and then the discontinuee recover c. yet he leaveth the naked right in the issue 12 Ass 41. 27 E 3 84 488. 23 H 8. Restore al action Br 5. vide S 473 475 478 487 But if the heir of the disseisor be disseised and the disseisee release to the disseisor upon Condition If the Condition be broken it shall revest the naked right And so if the disseisâ—e had entred upon the heir of the disseisor and made a Feofment in fee upon Condition if he enter for the Condition broken and the heir of the disseisor enter upon him the naked right should be left in the disseisee But if the heir of the disseisor had entred before the Condition broken then the right of the disseisee had been gone for ever 38 E 3 16 9 H 7 24 Sect 448 Naturall seisin is the freehold in deed and the civill the freehold in Law Bract l 4 f 206 236 Brit f 83 b Vide S 680 If a man levy a fine to a man Sur Com c Com ceo c. or a fine SuÌ„ conusee de droit tantum these be feoffments of record and the Conusee hath a freehold in Law in him before hee entreth 42 E 2 20 10 H 6 14 17 E 3 7 8 2 E 3 31. Vpon an exchange the parties have neither freehold in Deed nor in Law before they enter so upon a Petition the freehold is not removed untill an entry 11 H 4 61 21 H 7 12 If Tenant for life by the agreement of him in the reversion surrender unto him he in reversion hath a freehold in Law in him before he enter 32 E. 3 Bar. 262 4â— Ass â— 13 H 4 Surr. 10 Vpon a livery within view no freehold is vested before an entry 31 E 3 12 Fo 266 b If a man do bargaine and sell land by Deed indenture and intollenâ—â—â—â— the freehold in Law doth passe presently and so when use are raised by covenant upon good consideration If a Tenant in a praecipe being seised of Lands in fee confess himselfe to be a villaine to a stranger and to hold the land in villenage of him the stranger by this acknowledgement is actually seised of the freehold and inheritance without any entry 17 E 3 77 18 E 4 25 Sect 449 450 451 Fo. 267 a A release of all the right may be good to him in revoâ—sion or to him in remainder in deed â— E 3 5â— albeit he hath nothing in the freehold because he hath an estate in hiâ— â— E 4 13 14 H 4 32 b 41 E 3 17 49 E 3 28 case ult For he to whom a release is made of a bare right in lands and tenements must have either a freehold in deed or in Law in possession or a state in remainder or reversion in fee or fee taile or for life But note that the state which maketh a man Tenant to the precipe is said to be the freehold 3 E 2 enter 7. F. N.B. 20. E. Sect. 452. Fo. 267. b. Note that as a release made of a right to him in reversion or remainder shall aid and benefit him that hath the particular estate for years life or estate taile So a release of a right made to a particular Tenant for life or in taile shall aid and benefit him or them in remainder Sils ceo peient monstre The one cannot plead the Release made to the other without shewing of it for that they are privy in estate There is a diversity between severall estates in severall Lands and severall estates in one land for if two Tenants in Common of Lands grant a rent charge of forty shillings out of the same to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of Law was severall But if one be Tenant for life of lands the reversion in fee over to another if they two joyne in grant of a rent out of the lands if the grantee release either to him in the reversion or to Tenant for life the whole rent is extinguished for it is but one rent and issueth out of both estates Sect. 454. Fo. 68. a. Note two diversities 1 Between a Seigniory or rent service and a rent charge for a Seigniory or rent service may be released and extinguisht to him that hath but a bare right in the land in respect of the privity betwenn the Lord and the Tenant in right for he is not only as Tennanr to the avowry but if he die his heire within age he shall be in ward and if of full age he shall pay reliefe and if he die without heire the land shall escheat But there is no such privity in case of a rent charge for there the charge lieth upon the Land The second diversity is betweene a Seigniory and a bare right to land for a release of a bare right to land to one that hath but a bare right is void But a release of a Seigniory to him that hath but a right is good to extinguish the Seigniory Nota Seigniory rent or right either in praesenti or in future may be released five manner of wayes and the first three without any privity 1. To the Tenant of the freehold in deed or in Law 2. To him in remainder 3. To him in reversion The other two in respect of privity as 1. Where the Lord releaseth his Seigniory to the Tenant being disseised having but a right and no estate at all 2. In respect of the privity without any estate or right as by the demandant to the vouchee or donor to the donee after the donee hath discontinued in fee. vid. S. 455. l. 10. fo 48. Lampets case If the Lord hath accepted services of the disseisor then the disseiser cannot enforce the Lord to avow upon him though his beasts be taken c 20 H. 6. 9. b. 2 E 4. 6. a. But some do hold that if
there be Lord and Tenant and the Tenant be disseised and the disseisee die without heir the Lord accepts rent by the hands of the disseisâ—r this is no bar to him contrary it is if he avow for the rent in Court of Record or if he take a corporall service as homage or fealty for the disseisor is in by wrong but if the Lord accept the rent by the hands of the heir of the disseisor or of his Feoffee because they be in by title this shall bar him of his escheate which is to be understood of a discent or a Feoffment after the title of escheat accrued for if the disseisor make a Feoffment in Fee or die seised and after the disseisee die without heir then there is no escheat at all because the Lord hatâ— a Tenant in by title 7 E 6. escheat Br. 18. F.N. B. 1440. 7. H 4. 17 2 H 4. 8. 6 H 7. 9. vid. S. 556. Vpon the Statute 21 H 8. ca. 19. These four points are to be observed 1. That the Lord hath still election either to avow according to the Common Law by force of the Statute by reason of this word May. 2. Albeit the purview of the act be general yet all necessary incidents are to be supplied and the scope and end of the act to be taken and therefore though he need not to make his avowry upon any person certain yet he must alledge seisin by the hands of some Tenant in certain within 40. years 3. That if the avowry be made according to the Statute every plaintiffe in the replevin or second deliverance be he Termor or other may have every answer to the avowry that is sufficient and also have aid and every other advantage in Law disclaymer only excepted for disclaim he cannot because in that case the avowry is made upon no certain person 4. Where the words of the Statute be if the Lord distreine upon the Lands and Tenements holden yet if the Lord come to distraine and the Tenant enchase the beasts which were within the view out of the land holden â— there the Lord distreine c. in judgement of Law the distresse is lawfull and as taken within his fee and Seigniory and the Statute being made to suppresse fraud is to be taken by equity L 9. so 136. Ascoughs case 27 H 8. fo 4. 32 H 8. ca. 2. l. 9. f. 36 â—acknaâ—â— case 34 H 8. Avow Br. 113. l. 9. f. 22 case davow 11 H. 7. 4. 34 H 6. 18. 16 E 4. 10. 21 H 7. 40. Sect. 445. Fo. 269. Note a diversity between a release of a rent service out of Land and a release of right to land As if a Lease be made to F. one for life reserving to the lessor and his heirs a certaine rent If the lessee be disseised and after the lessor release to the lessee and his heirs all the right which he hath in the Land and after the lessee enter albeit in this case the rent is extinct yet nothing of the right of reversion shall passe But admit that the Donee in taile in such case make Feoffment in fee and the donor release unto him and hiâ— heirs all the right in the Land this shall extinguish the to â—t because the Lord must avow upon him and yet the Tenant in Tail after the Feoffment hath no right in the Land but the reason is in respect of the privity and that the donor is by necessity compellable to avow upon him only c. 1 H. 5. garr 43. 14. H. 4. 38. l. 3. fo 29. l. 6. 58 10. E. 3. 26. 48. E. 3 8. b. 31. E. 3. gard 116. 5. E. 4. 3 7. E. 4. 27. 15. E. 4. 13. Trin. 18. Eliz Sir Tho. Waits case in Com. Banco Nota c. Sect. 457 458. Si veray Tenant que est disseisin reign del fiâ—gn per service de chivalry mor. son heire eant deius age le siegn avera seisam le gard del heire mes si tiel tenant fist Feoffment in fee c. auterment est 12 H. 4 13. 36 E. 3. gard 10. 6. H 7. 9. 37 H. 6. 1. 32. H. 6. 27. 7. E. 6. gard Br. There be four manner of avowries for rents and services c. viz. 1. Super verum tenentem as in the case here put 2. Supra verum tenentem in forma praedicta as where a Lease for life or a gift in tail be made the remainder in fee. 3. Upon one as upon his Tenant of the Mannor omitting very and this is when the Lord hath a particular estate in the Seigniory and so shall the donor upon the donee or lessor upon the lessee 4. Sur la matter en la terre as within his fee and Seigniory As where the Tenant by knights service maketh a Lease for life reserving a rent and die his heir within age the gardein shall avow upon the lessee 2 H. 4. 24. 12. E. 4. 42. 26. H. 6. avowry 17. 9 El. Dyer 257. 5. H 7. 11. 7. E. 4. 24. 20. E. 3. avow 131. 47. E. 3. fo ult 38. H. 6. 23. Now by the Statute 21. H. 8. ca. 19. The very Lord may avow as in Lands within his fee and Seigniory without avowing upon person in certainty Note a diversity if Tenant in Tail make a Feoffment in fee yet the right of the Tenant in tail remains and shall descend to the issue in tail But when the Tenant in fee simple make a Feoffment in fee no right at all remains of his estate but when the whole is transferred to the Feoffee Also the Lord is not compellable in that case to avow upon the Feoffor but if he will as Littleton here saith he may avow on the Feoffee but so it is not in case of tenant in tail Fol. 269. b. Note a diversity between actions and acts which concern the right and actions and acts which concern the possession only for a writ of customs and services lyeth not against the Feoffor nor a release to him shall extinguish the Seigniory So if a rescous be made an Ass shall not lie against the Feoffor and him that made the Rescous because the Feoffee is Tenant and in Ass the surplusage incroached shall be avoided for these actions and acts concern the right but of a seisin and avowry which concern the possession it is otherwise and if the Lord release to the Feoffor this is good between them as to the possession and discharge of the arerages but the Feoffee shall not take benefit of it for that it extended but to the right But the Feoffor shall plead a release to the Feoffee for thereby the Seigniory is extinct as if the lessee for life doth wast and grant over his estate and the lesser release to the grantee in an action of wast against the lessee he shall plead the release and yet he hath nothing in the land and so in wast shall Tenant in Dower or by the curtesie in the like case and
the Patron must give his consent But if there be a Corporation aggregate of many as Dean and Chapter Mr. fellowes and Schollars of a Colledge Abbot or prior and Covent c. or any sole corporation that hath the absolute fee as a Bishop with consent of the Deane and Chapter they may by the Common Law make any grant of or out of their possessions without their founder or patron albeit the Abbot or prior c. were presentable and so it is of a Bishop because the whole estate and right of the Land was in them and they may respectively maintaine a writ of right 12 H. 4. 11. 19 E 3. 7. 7. Eliz. Dy. 238. 9. E. 4. 6. 2 H 4. 11. And note a diversity betweene a confirmation of an estate a confirmation of a deed for if the disseisor make a charter feoffment to A. with a Letter of Attorney and before livery the disseisee confirm the estate of A. or the Deed made to A. this is cleerly void though livery be made after But if a Bishop had made a Charter c. and the Deane and Chapter before livery confirm the Deed this is a good confirmation and livery made afterwards is good The like Law is of confirmation of a Deed of grant of a reversion before Attornement Grants made by Parsons Prebends Deane and Chapter c. are restrained by divers acts of Parliament 13. El ca. 10. 1. Eliz. ca. 18. 18. El. ca. 11. 1. Ja. ca. 3. Section 593 and 648. l. 2. fo 46. l. 4. 76. 120. l. 5. 9. 6. 14. li. 6. 17. li. 7. 8. lib. 11. 6. 7. defessus sum c. Sect. 529. and Sect. 531. Fol. 301. a b. Note a diversity where the determination of the rent is expressed in the Deed and when it is implyed in Law For when Tenant for life grant a rent in fee this by Law is determined by his death and yet a confirmation of the grant by him in reversion makes that grant good for ever without words of inlargement or clause of distreâ—â—e which would amount to a new grant and yet if the Tenant for life had granted a rent to another and his heires by expresse words during the life of the grantor and the lessor had confirmed that grant it should determine by the death of Tenant for life 26. Ass p. 38. 45. Ass p. 13. 14. Ass p. 14. Dedi or concessi may amount to a grant a feoffment a gift a Lease a release a confirmation a surrender c. and it is in the Election of the party to use which of these purposes he will Brit. li. 2. f. 59. b. Brook tit confir 20. 14 H. 7. 2 37. H. 6. 17. Dy. 8. Eliz. 4 H. 7. 10. 22 E. 4. 36. 40 E. 341. But a release confirmation or surrender c. cannot amount to a grant c. nor a surrender to a confirmation or to a release c. because these be proper and peculiar manner of conveyances c. Dimifi and this verbe volo will amount to a confirmation 7 E. 3. 9. In ancient statutes and in originall writs as in the writ of entry in casu proviso in consimili casu ad com legem c. this word dimifi is not applyed onely in a Lease for life but to a gift in taile and to a state in fee. 32 E. 3. breve 29. 1. Stat. Gloc. ca. 4. Benignae enim faciendae sunt intepraetationes cartarum propter simplicitatem laicorum ut res magis valcat quam pereat and he to whom such a Deed comprehending dedi c. is made may plead it as a grant as a release or as a confirmation at his Election 14 H. 4. 36. li. 5. fo 15. in Newcomens case If a disseisor make a Lease for life or a gift in taile the remainder to the disseisee in fee the disseisee by his Deed granteth over the remainder the particular tenant attorneth the disseisee shall not enter upon the Tenant for life or in taile for then he should avoid his grant demesne which amounted to a grant of the estate and a confirmation also Sect. 543. Fol. 302. b. If cesty que use and his feoffees after the Statute 1 R 3. and before the Statute 27 H. 18 ca. 10. had joyned in a fâ—offment it shall be the feoffment of the feoffees because the State of the Land was in him 21 H. 7. 34. b. Pl. Com. 59. a. Wimbishes case So it is if the Tenant for life and he in the remainder or reversion in fee joyne in a feoffment by Deed the livery of the freehold shall move from the leffee and the inheritance from him in the reversion or remainder from each of them according to his estate Pl. Com. 140. Brownings case 2 H 5. 7. 13 H. 7. 14. 13 E. 4. 4. a. 27 H. 8. 13. M. 16. and 17 El. 339. But if he in the reversion in fee and Tenant for life joyn in a feoffment per paroll this shall be as some hold first a surrender of the estate of Tenant for life and then the Feoffment of him in the reversion for otherwise if the whole should passe from the lessee then he in the reversion might enter for the forfeiture and every mans act ut res magis valeat shall be construed most strongly against himself If the disseisor and disseisee joyn in a Charter of feoffment and enter into the Land and make livery it shall be accounted the feoffment of the disseisee and the confirmation of the disseisor Placitum à placendo quia omnibus placet Fo. 303. a. Ordine placitandi servato servatur jus c. 1. In good order of pleading a man must plead to the jurisdiction of the Court. 2. To the person of the plaintiffe and to the defendant 3. To the Count. 4. To the Writ 5. To the action c. Bract. li. 5. fo 400. Britton fo 41. a. and 122. 40. E. 3. 9. b. The count must be agreable and conform to the writ the barre to the count c. and the judgement to the count Certa debet esse intentio narratio certum fundamentum et certa res quae deducitur in judicium Note three kind of certainties 1. To a Common intent and that is sufficient in a barre which is to defend the party and to excuse him 2. A certaine intent in generall as in Counts replications and other pleadings of the plaintiffe that is to convince the defendant and so in indictments c. 3. A certaine intent in every particular as in Estoppells Bract. l. 2. fo 140. lib. 5. 120 c. Lobs case Where a matter of Record is the foundation or ground of the suit of the plaintiffe or of the substance of the plea there it ought to be certainly and truly alleadged otherwise it is where it is but a conveiance Pl. Com. 65. a 6. 100. 376. and 410. 8. Ass 29. 5 E. 4. 70 E. 4. 1. Ambiguum placitum interpretari
of a grant of a rent service the attornment of the disseisee sufficeth 21 H. 6. 9. b. It was holden by Dyer and Mounson in the Argument of Brace bridges case that if he that hath a rent charge granteth it over for life and the Tenant of the Land attorn thereunto and after he grant the reversion of the rent charge that the grantee for life may attorne alone and that these words of Littleton are to be understood when a rent charge or rent seck is granted in possession and a quid juris clamat in that case did lye against the grantee for life 46 E. 3. 27. 2 H. 6. 9. Vide Littleton Sect 549. and 553. A man maketh a Lease for life and after grants to A. a rent charge out of the reversion A. grants the rent over he in the reversion must Attorne and not the Tenant of the freehold for that the freehold is not charged with the rent for a release made to him by the grantee doth not extinguish the rent and Littleton is to be understood that the Tenant of the freehold must attorne when the freehold is charged Vide fo 312. a. Littleton speaketh of five kindes of inheritances whereto an Attornement is requisite 1. Of a Seignory rent service c. 2. Of a rent charge 3. Of rent seck 4. Of a reversion 5. Of a remainder of Lands For the Tenant shall never need to Attorne but when there is tenure attendance remainder or payment of a rent And therefore if an annuity common of pasture common of estovers be granted for life or years c. the reversion may be granted without any Attornment 21 H. 7. 1. 1 H. 5. 1. 37. Ass 14. 36. Ass p. 3. 31 H. 8. Attorn Br. 59. Sect. 557. Fol. 312. b. In this case of Littleton by this escheat of the remainder the Seigniory is extinct for the fee simple of the Seigniory being extinct there cannot remain a particular estate for life thereof in respect of the tenure and attendance over 3. 3 H. 6. 1. old tenures 107. 15 E. 4. 15. a. per Littleton But otherwise it is of a rent charge in fee for if that be granted for life and after he in the reversion purchase the Land so as the reversion of the rent charge is extinct yet the grantee for life shall enjoy the rent during his life for there is no tenure or attendance in this case Sect. 558 559. Fo. 313. a. Littleton now commeth to speak of Atornments in Law or implyed 3 E. 3. 42. 15 E 3. Attorne 11. If the Lord grant his Signiory to the Tenant of the land and to a stranger and the Tenant accept the Deed this acceptance is a good Attornment to extinguish the one moity and to vest the other moity in the grantee Suspense is when a Seigniory Rent profit apprehend c. by reason of unity of possession of the Rent Seigniory c. of the Land out of which they issue are not in esse for a time and they are said to be extinguished when they are gone for ever and can never be revived that is when one man hath as high and perdurable estate in the one as in the other Sect. 560. 561. Fol. 313. a. b. Note that albeit a grant may enure by way of release and a release to the Tenant for life doth work an absulute extinguishment whereof he in the remainder shall take benefit yet the Law shall never make any construction against the purport of the grant to the prejudice of any or against the meaning of the parties c. Vide lib. c. Sect. 562. Fo. 314. a. Note a diversity when the whole estate in the Seigniory is suspended and when but part of the estate in the Seigniory is suspended but for terme of life and therefore as to all things concerning the right it hath its being but as the possession during the particular estate the grantee shall take no benefit therefore during that time he shall have no rent service Wardship Relief Heriot c. because these belong to the possession but if the Tenant dyeth without heir the Tenancy shall escheat unto the grantee for that it is in the right and yet when the Seigniory is revived by the death of the Tenant there shall be wardship as if the Tenant marry with the Seignioresse and dyeth his heire within age they shall have the wardship of the heire Also in the case that Littleton here putteth albeit the Seigniory be suspended but for life yet some hold that he cannot grant it over because the grantee took it suspended and it was never in esse in him but if the Tenant make a Lease for years or for life to the Lord there the Lord may grant it over because the Seigniory was in esse in him and the fee simple of the Seigniory is not suspended but if the Lord disseise the Tenant or the Tenant infeoffe the Lord upon condition there the whole estate in the Seigniory is suspended and therefore he cannot during the suspension take benefit of any escheat or grant over his Seigniory 34. Ass p. 15. 16 E. 3. vouch 83. 5 E. 3. Twongs case Sect. 563. 564. Fo. 314. Attornment for part cannot be void for that and good it cannot be unlesse it be for the whole 4 E. 3. 55. Malmans case 5 E. 4. 2. 7 H. 4. 10. 35 H. 6. 8. per prisot And payment of any parcell of the services is an agreement in Law to the grant 40 E. 3. 34. Intentio inservire debet legibus non leges intentioni 20 H. 6. Judgement in scire facias pur parcell de le services est bone attorn en ley commit que il est presume quod judicium redditur in invitum 48 E. 3. 24. 37 H. 6 14. per Moyle 17 E. 3. 29. Note that in case of Deed nothing passeth before attornment In the case of the fine the thing granted passeth as to the State but not to distraine c. without Attornment In the case of the King the thing granted doth passe both in estate and in privity to distreine c. without Attornment unlesse it be of Lands or Tenements that are parcell of the Dutchy of Lancaster and lye out of the County Palatine Sect. 565. Fo. 315. b. Note a diversity between money given by way of Attornment and where it is given as parcell of the Rent by way of seisin of the Rent And therefore a payment in name of seisin is more beneficiall for the grantee because this is both an actuall seisin and an Attornment in Law and yet being given before the day in which the Rent is due it shall not be abated out of the Rent 39 H. 6. 3. 26. 5 E. 4. 2. Vide S. 235. 7 H. 4. 2. Attorny Br. 97. Sect. 566. As of an Attornment so a seisin of a rent by the hands of one joynt-tenant is good for al and a seisin of part of the rent is a good seisin
of the whole Lib. 2. fo 67. Bookers case If either the grantor or grantee dye the Attornment is countermanded but if the Tenant dye he that hath his Estate may Attorn at any time If the Tenant grant over his estate his Assignee may attorn Lib. 4. fo 8. l. 6. fo 57. l. 9. fo 34. 4 H. 6. 29. 18 E. 4. 10. If an Infant hath Lands by purchase or by discent he shall be compelled to Attorn in a per que servitia 42 E 3. Age 33. 18 H. 6. 2. l. 9. fo 84. 85. Coyns case 4. M. Dy. 137. 7 E. 2. Age 140. If an infant be lessee he shall be compelled to Attorn in a quid Juris clamat the Attornment of an Infant to a grant by Deed is good and shall bind him because it is lawfull albeit he be not upon that grant by Deed compellable to Attorne Sect. 567. Fol. 315. b. The grant of the reversion by Deed with the attornment of lessee for years do countervaile in Law a feoffment by livery as to the passing of the freehold and inheritance And Tenant by statute Merchant or Staple or by Elegit must also attorn for the grantee may have a venire facias ad computat or tender the mony c. and discharge the Land and if the reversion be granted by Fine they shall be compelled to attorn in a Quid juris clamat 6 E. 3. 53. 25 E. 3. 53. Br. Attor 48. 32 E 3. scire facias 101. Dy. 1. a. And so the Executors that have the Land untill the debts be paid must attorn upon the grant of the reversion although they have not any certain terme for years Sect. 568. Fo. 316. a. If Tenant in Dower or by the curtesie grant over his or her estate and the heire grant over the reversion the Tenant in Dower or by the Curtesie may attorn because at the time of the grant made they were attendant to the heire in reversion and the grantee cannot be Tenant in Dower or by the Curtesie and if the reversion be granted by Fine the Fine must suppose that the Tenant in Dower or by the Curtesie did hold the land albeit they had formerly granted over their estate and albeit the reversion doth passe by the Fine yet the Quid juris clamat must be brought against him that was Tenant at the time of the note levied and the grantee of the reversion must bring an action of waste against the Assignee of Tenant in Dower or by the Curtesie for they themselves cannot hold of any but of the heire and therefore in respect of the privity they shall attorn and be subject to an action of waste as long as the reversion remaineth in the heire albeit they have granted over their whole estate and note that if the grantee of the reversion doth bring an Action of wast against the Assignee of Tenant by the Curtesie the plaintiffe must rehearse the Statute which proveth that no prohibition of waste in that case lay at the common Law as it did if the heir had brought it against the Tenant by the Curtesie himselfe and therefore some doe hold that if the heir do grant over the reversion that the Attornement of the Assignee of the Tenant by Curtesie or of Tenant in Dower is sufficient because they afterward must be attendant and subject to the Action of waste 10. H. 4 Attornment 16. 11 H. 4. 18. F.N.B. 55 E. Reg. fo 72. 4 E. 3. 26. If the reversion of lessee for life be granted and lessee for life Assigne over his estate the lessee cannot attorne but the attornment of the Assignee is good because it behoveth that the Tenant of the land doe attorne and after the Assignment there is no tenure or attendance c. between the lessee and him in reversion 18 E. 4. 10. b. 26 E. 3. 62. 5 H. 5. 10. Sect. 569 570 571 552 573. Fo. 316. b. No Quid juris clamat lyeth against Tenant in taile but if a man make a gift in taile the remainder in fee and the Seigniory or rent charge issuing out of the land be granted by Fine the Conusee shall maintaine a per que servitia or a Quem redditum and compell him to Attorne for herein his estate of inheritance is no priviledge to him for that a Tenant in fee simple as his Estate was at the Common Law is also compellable in these cases to attorne Lou le reversion est dependant sur lestate del franktenement suffist que le tenant del franktenement attorn sur grant del reversion c. Si lease pur terme dans c. ou done en le taile soit fait reserve un rent per le grant del reversion en tiel case le rent passara pur ceo que tiel rent est incident al reversion nemy è converso If a man let land to another for his life and after he confirme by his Deed the estate of the Tenant for life the remainder to another in fee and the Tenant for life accept the Deed c. Albeit he in remainder in this case hath no remedy to come to the Deed during the life of Tenant for life yet because he is privy in Estate he shall not maintaine an action of waste without shewing the Deed but when the remainder is once executed he shall not need to shew the Deed Vide Pl. Com. Colthirsts case D St. Ch. 20. fol. 93 94. Pl. Com. 149. Throckmortons case 45 E. 3. 14. 15. 11 H. 4. 39. 14 H 4. 31. As in Physick nullum medicamentum est idem omnibus so in Law one forme or president of conveyance will not fit all Cases Sect. 574. Fo. 318. a. If one joyntenant make a Lease for years reserving a rent and dye the survivor shall not have the rent therefore Littleton here addeth materially for the privity that was betwen the Tenant for life and them in the reversion 2 Eliz. Dyer 176. Tenant for life shall not be compelled to attorn in a Quid juris clamat upon the grant of a reversion by Fine holden of the King himselfe without licence For it is a generall rule that when the grant by fine is defeasible there the Tenant shall be compelled to attorne 45 E. 3. 6. b. 13 Eliz. Dy. 188. Lib. 3. fo 86. Justice Windhams case 36 H. 6. 24. As if an Infant levy a Fine this is defeasible by Writ of Errour during his minority and therefore the Tenant shall not be compelled to attorn So if the land be holden in ancient Demesn and he in the reversion levy a Fine of the reversion at the Common Law this is reversible in a Writ of Deceit c. 5 E. 3. 25. 3 E. 3. Ancient Demesn 16. So if an Alienation be in Mortmain the Lord Paramount may defeat it c. 17 E. 3. 7. 22 E 3. 18. So if a Tenant in Tail had levied a Fine it was defeasible by the issue in Tail 24 E 3. 25. b. 37
le Baron soit seisee de cert terre en droit sa feme fait feoffement in fee sur Condition devy c. When the heir in this case hath entred for the Condition broken and hath avoided the feoffment the estate of the heir vanisheth away and presently the estate vesteth in the feme or her heirs without any Entry or Claim by her or them for the heir enters in respect of the Condition upon the reall Contract and not of any right and if the husband himselfe had re-entred the state had vested in his Wife And therefore where Littleton and our Books say That the wife shall enter upon the heir the meaning is That after the re-entry of the heir she may enter 4 H. 6. 2. 9 H 7. 24. b. l. 8. f. 43 44. Whittinghams Case Sect. 633. Fo 337. b. If the husband within age take a wife feme Tenant in Tail generall and the husband make a gift in Tail and dyeth within age in this case the wife may enter as Littleton here holdeth or the heir of the husband in respect of the new reversion descended unto him may enter But if the heir enter presently thereupon his estate vanisheth If husband and wife be both within age and they by deed indented joyn in a Feoffment reserving a rent the husband dyeth the wife may enter or have a Dum fuit infra aetat But if she were of full age she shall not have a Dum fuit infra aetat for the Non-age of her husband albeit they be but one person in Law 14 E. 3. Breve 282. 14 E. 3. Dum fuit c. 6. F. N B. 892. Sect. 634. 2. Joyntenants estant deins age fontun feoffment in fee lun de les infants devy celuy que survesquist poit enter en bentierly c. For that they may joyn in a Writ of Right and therefore the Right shall survive But they cannot joyn in a Dum fuit infra aetat because the Nonage of the one is not the Nonage of the other 21 E 3. 50. 18 E. 2. Breve 831. 6 E. 3. 4. 9 H. 6. 6. 19 H. 6. 6. 39 H. 6. 42. 34 H 6. 31. In this case if one joyntenant had made a Feoffment in fee and dyed the right should not have survived for the joynture was severed for a time If two joyntenants be and the one is of full age and the other within age and both they make a Feoffment in fee and he of full age dyeth The Infant shall enter or have a Dum fuit c. but for the moity Sect. 635. Fol. 337. b. Serroit encounter reason que un feoffment fait per celuy que ne fuit able de faire tiel feoffment greevara ou ledare auter de toller eux de lour entre c. Meliorem facere potest minor condic ' deteriorem nequaquam Bract. fo 14. Brit. f. 88. a. Nota a speciall heir shall take advantage of the infancy of the Ancestor As if Tenant in Tail of an acre of the Custome of Borough English make a Feoffment in fee within age and dyeth the yongest Son shall avoid it for he is privy in blood and claimeth by Discent from the Infant And so note that a cause to enter by reason of infancy is not like to Conditions Warranty and Estoppels which ever descend to the heir at the Common Law Sect. 636. Fol. 338. a. Note there be 3 kinds of Surrender viz. a Surrender properly taken at the Common Law which is a yielding up of an estate for life or years to him that hath an immediate estate in reversion or remainder wherein the estate for life or years may drown by mutuall agreement between them 2. A Surrender by Custom of Lands holden by Coppy or of Customary estate vide Sect. 74. homo com gen ** And 3. A Surrender improperly taken vide S. 550. of a Deed. And so of a Surrender of a Patent and of a rent newly created and of a fee simple to the King 2 El. Dyer 176. 14 H. 7. 3. 27 Ass 37. 49 E. 3. 2. 11 H. 4. 2. 12 H. 4. 21. 13 H. 4. 13. And a Surrendr properly taken is of two sorts viz. 1 A Surrender in Deed by expresse words whereof Littleton here putteth an Example and he putteth his case of a Surrender of an estate in possession for a right cannot be sureendered 2. A surrender in Law which in some cases is of greater force then a Surrender in Deed. As if a man make a lease for years to begin at Michaelmas next this future interest cannot be surrendred because there is no reversion wherein it may drown but by a surrender in Law it may be drowned As if the Lessee before Michaelmas take a new lease for years either to begin presently or at Michaelmas this is a surrender in Law of the former lease Fortior et aequior est dispositio legis quam hominis 14 H. 8. 15. 50 E. 3. 6. 44 Ass 3. 35 H. 8. Dyer 37. 8 Ass 20. 4 M. Dyer 141. 11 El. Dyer 280. 21 H. 7. 6. 14 H 7. 4. li. 6. fo 69. Sir Moyl Finches Case Also there is a Surrender without Deed whereof Littleon putteth here an Example of an estate for life of lands And also there is a Surrender by Deed and that is of things that lie in grant 16 H. 6. 33. 27 Ass 46. 14 H. 7. 4. 1 H. 6. 1 Pl. Com. 541. And albeit a particular estate be made of lands by Deed yet may it be surrendred without Deed in respect of the nature and quality of the thing demised because the particular might have beene made without Deed. and so on the other side If a man be * Tenant by the Curtesie or Tenant in Dower of an Advowson Rent or other thing that lies in grant albeit the estate begin without Deed yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendred without Deed. And so if a lease for life be made of lands the remainder for life albeit the remainder for life began without Deed yet because remainder and reversions though they be of lands are things that lie in grant they cannot be surrendred without Deed. Qu. fi le fits la feme poit enter c. It is holden of some That after the surrender the issue in Tail during the life of Tenant for life may enter for that having regard to the issue the state for life is drowned and consequently the inheritance gained by the lease is by the acceptance of the surrender vanished and gone as if Tenant in Tail make a lease for life whereby he gaineth a new reversion if Tenant for life surrender to the Tenant in Tail the estate for life being drowned the reversion gained by wrong is vanished c. and he is Tenant in Tail again against the opinion Obiter of Portington 21 H. 6. 53. vide lib. fo 338. b. Mes il nost rien a
in Abeyance there said to be in suspense 19 H. 6. 60. 29 Ass P. Com. 562. 563. Walsinghams Case Tenant for life the remainder in Tail the remainder to the right heirs of Tenant for life Tenant for life grant to 〈◊〉 Stat. suum to a man and his heirs both estates do passe 44 Ass 28. 44 E. 3. 10. Jâ—â— sive rectum signifieth properly and specially in Writs and pleadings when an estate is turned to a right as by discent disseisin c. where it shall be said Quid jus descendit non terra 20 H. 6. 9. But right doth also include the estate in esse in Conveyances and therefore if Tenant in fee simple make a lease for years and release all his right in the land to the lessee and his heirs the whole estate in fee simple passeth Vide Sect. 465. Pl. Com. 484. lib. 8. fol. 153. Althams Case 39. H. 6. 38. And so commonly in Fines the right of the land includeth and passeth the state of the land as A. cognovit teneâ—enta praedicta esse jus ipsius B. c. and the Statute saith Jus suum defendere which is statum suum W. 2. cap. 3. Pl. Com. 484. 487. b. And note That there is jus recuperandi jus inenandi jus habendi jus retinendi jus percipiendi jus possidendi fo 345. b. Title properly is when a man hath a lawful cause of entry into lands whereof another is seised for the which he can have no action as Title of Condition Title of Mortmain c. Vide S. 429 659 c Every right is a Title but every Title is not such a right for which an action lyeth and therefore Titulus est justa causa possidendi quod nostrum est As by a release of a right a Title is released so by release of a Title a right is released also Interest ex vi termini extendeth to Estates Rights and Titles that a man hath of in to or out of Lands and by the grant of totum interesse suum in such lands as well reversions as possessions in fee simple shall passe Pl. Com. 374. Seignior Zouches Case 487 488. Nichol. Nichols Case 23 H. 8. Tail Br. 32. 16 El. Dyer 325. b. If Tenant for life be the remainder in Tail and he in the remainder in Tail release to the Tenant for life all his right and state in the land Hereby it is said in in our Books That the estate of the lessee is not enlarged but the release serveth to this purpose to put the state Tail into Abeyance so as after that he in the remainder cannot have an action of Waste 43 Ass p. 13. 41 E. 3. Waste 83. 11 H. 4. 67. 14 H. 7. 10. Pl. com 482. per Dyer 27 H. 8. 20. Yet in that case saving reformation the lessee for life hath an estate for the life of Tenat in in Tail expectant upon his own life 42 E. 3. 23. But if Tenant in fee release to his Tenant for life all his right yet he shall have an action of Waste and if Tenant in Tail make a lease for his own life he shall have an action of Waste F N B 60. H 42 E. 3. 18. 41 E. 3. Waste 83. Sect. 658. Fol. 347. b. Here Littleton doth adde a Limitation to that which in this Chapter he had generally said viz. That an estate Tail cannot be discontinued but where he that maketh the discontinuance was once seised by force of the Tail which is to be understood when he is seised of the Freehold and Inheritance of the estate in Tail and not where he is seised of a remainder or a reversion expectant upon a Feeehold which Freehold is ever much respected in Law Vide 637 592 596 597 601 640 641. CHAP. XII Of Remitter Sect. 659. Fo. 348. a. LOu home ad 2 Titles a terres ou tenements Et adonques est adjudge eins per force de son eigne title ceo est a luy die un Remitter pur ceo que ley luy mitter destr eins en la terre c. per le pluis eigne sure title Quod prius est verius est quod prius est tempore potius est jure A Remitter is an operation in Law upon the meeting of an ancient right remediable and a latter state in one person where there is no folly in him whereby the ancient right is restored and set up again and the new defeasible estate ceased and vanished away 25 Ass p. 4. 11 H. 4. 50. a. Here in this case Titles includeth Rights for being properly taken as in case of a Condition Mortmain Assent to a Ravisher c. there is no Remitter wrought unto them because these are but bare Titles of Entry for the which no action is given but a Remitter must be to a precedent right And Littleton in this Chapter putteth all his cases only of Remitters to rights remediable 429. 650. Sect. c. 34 H. 8 Remit Br. 50. 44 E. 3. Attaint 22. 38 Ass p. 7. Note two things 1. That this Remitter is wrought in this case by operation of Law upon the Freehold in Law descended without any entry 2. That the Law so favoureth a Remitter that if the discontinuee be an Infant or feme Covert and Tenant in Tail after a discontinuance djsseise them and dye seised the issue shall be remitted without any respect of the privilege of Infancy or Coverture 11 E. 4. 1. In this case and many other the Law that abhorreth Suits of vexation doth avoid circuity of action for the Rule is Circuitas est evitandus 11 E. 3. 3. Ass 85. 4 E. g. 35. 14 H. 6. 27. 10 H. 7. 11. F N B Mesne and Waste Sect. 660. Fo. 348. b. Since Littleton wrote and after the Statute of 2â— H. 8. c. 10. If Tenant in Tail make a Feoffment in fee to the use of his issue being within age and his heirs and dieth and the right of the estate Tail descend to the issue being within age yet he is not remitted because the Statâ— executeth the possession in such plight manner and form as the use was limited sic de similibus 35 H. 8. Dyer 54. b. 6 E. 6. ib. 77. 1 2 P.M. 116. 1 2 P. M. 129. 191. 28 H. 8. 23. b. Pl. Com. Amy Townsends Case 34 H. 8. Remit Br. 49. But if the issue in Tail in that case wave the possession and bring a Formedon in the Discend and recover against the feoffees he shall thereby be remitted to the estate Tail otherwise the lands may be so incumbred as the issue in Tail should be at a great inconvenience but if no Formedon be btought if that issue dyeth his issue shall be remitted because a state in fee simple at the Common Law descendeth unto him Pl. Com. supra Nota in this case that the State of the land out of which the rent issued being defeated the rent is defeated also Fo. 349. a. But
5. 34. per Hals Lodington * 35 Ass p. 2. When an entry shall vest or devest an estate there must be several entries into several parcels of land c. but wher the possession is in no man but the freehold in law is in the heir that entreth there the general entry into one part reduceth all into his actual possession Fol. 15. b. Possessio fratris de feodo simplici facit sororem esse haeredem 11 H. 4. 11. l. 3. Ratcliffs case All the lands and possessions whereof the King is seised in Jure Coronae shall secundum jus Coronae attend upon and follow the Crown The quality of the person doth alter the discent Sect. 9. Inheritance is not only intended where a man hath Lands c. By descent of inheritage but also by purchase Fol. 16. a. 7. H. 4. 5. * 6. E. 3. 30. A man may have inheritance in title of Nobility by creation by descent and by praescription By Creation by Writ and by Letters Patents If he be called by Writ to the Parliament he hath a Fee simple in the dignity c. Without any words of inheritance but if he be created by Letters Patents the state of inheritance must be limited by apt words or else the grant is void The creation by Writ is the ancienter by Letters Pattents the surer for he may be sufficiently created by Letters Pattents and made noble albeit he never sit in Parliament Simulier nobilis nupserit ignobili de sinit esse nobilis that is if she gain her Nobility by marriage But if a woman be noble by discent c. It is otherwise Fol. 16. b. l. 4. 118. Actons Case Littleton citeth no Authority but when the Case is rare or may seem doubtfull Prespecua vera non sunt probanda Vide Librū c. Sect. 10. Placitum á placendo quia bene placitare super omnes placet Fol. 17. a. Seised is properly applyed to Freehold possessed to Goods and Chattells Bract. lih 4. f 263. Demain of the hand i.e. manured by the hand or received by the hand Seisitus c. in dominico suo ut de feodo sc de tres c. D◠qūx home poit aver un manuel occupation c. Seisitius ut d◠feodo sc de Advowson c. Vt de feodo is to be understood positively where ut denotat ipsam veritatem non similitudinem rei Idonea persona for the discharge of the Cure should be presented freely c. By the Patron Guardian in Socage shall not present to an Advowson because by the Law he can meddle with nothing that he cannot account for Fol. 17. b. Advocatio is an advowing or taking into protection est jus patronatus 7 E. 3 4. 45 E. 3. 5. Two coparceners one of them shall have a writ of right of Advowson de medietate advocationis for in truth she hath but a right to a moity but where there be two Patrons and two Incumbents in one Church each of them shall have a Writ of Advowson de advocatione medietatis Two fee simples absolute cannot be of one and the self-same land fo 18. a. Sect. 11. And yet the several persons by Act in law a reversion may be in fee simple in one and a fee simple determinable in another by matter ex post facto as if a gift in tail bee made to a Villain and the Lord enter the Lord hath a fee simple qualified and the donor a reversion in fee but if the Lord infeoff the donor now both fee simple are united and he hath but one fee simple in him but one fee simple cannot depend upon another by the grant of the party as if lands be given to A so long as B hath heirs of his body the remainder over in fee the remainder is void Sect. 12 A purchase is always intended by title and most properly by some kind of conveiance for money or some other consideration or freely of gift An heir-loom is called principalium or haereditarium Si un monument soit deface in lesglise le heir del Ancestor poit aver son action c. 9 E. 4. 24. CAP. II. De Fee Tail Sect. 13. TAllium derived of tailler scindere Modus conventio vincont legem Fol. 19. a. Before the statute of West 2. De donis conditionalibus the heir in Tail had no Fee simple absolute at the common law though there were divers discents Annuities and such like inheritances as cannot be intailed within the said Stature remain at the common law If the King before the statute c. had made a gift in tail c. in this case if the Donee had no issue and before the statute had aliened with warranty and died and the warranty had descended upon the King this should no◠have bound the King of his reversion without assets b◠otherwise it was in the case of a common person fol. 19. b. 6 E. 3. 56. 45 Ass p. 6. The King can do no wrong Pl. c. 246. Sect. 14 15. Not only all corporate inheritances which are or may b◠holden but also all inheritances issuing out of any of those inheritances or concerning or annexed to or exercisible within the same though they lie not in tenure may be intailed As Rents Estovers Commons c. Or Uses Offices Dignities which concern lands or certain places c. But if the grant be of an inheritance meer personal or to be exercised about chattels and is not issuing out of land c As the grant of an annuity of the office to be faulconer master of horse c. Such inheritances cannot be intailed because they savor nothing of the reality Fol. 20. a. 7 E. 3. 363. In these cases the grants c. hath a fee conditional and by his grant or release he may bar his heir as he might have done at the common law viz. In grant de personal inheritances Pl. C. Manxels c. Idem semper proximo antecedenti refertur fol. 20 b. These words de son corps are not so strictly required but that they may be expressed by words that amount to as much 5 H. 5. 6. Voluntas donatoris in Charta doni sui manifestè expressa observetur Quer. c. If a man make a charter of feoffment of an acre of land to A. and his heirs and another Deed of the same acre to A and the heirs of his body and deliver seisin according t◠the form and effect of both deeds it shall enure by moities i.e. to have an Estate Tail in the one moity with the Fee Simple expectant and a Fee Simple in the other moity c. Fol. 21. a. 2 H. 6. 25. 45 E. 3. 20. Sect. 17. Robert gave the reversion of lands which Agnes his wife did hold for life to Stephan de la More Habendum post mortem dictae Agnetis in liberum Maritagium cum Johanna filia ejusdem Roberti and it is adjudged that is a good Estate Tail 5 E. 3.
priviledges in respect of the privity of his estate of the inheritance that was once in him which Tenant in Tail himself hath and which Lessee for life hath not As 1. He is dispunishable for wast 2. He shall not be compelled to atturn 3. He shall not have aid of him in the reversion 4. UpoÌ„ his alienatioÌ„ no writ of entry in consimili casu lieth 5. After his death no writ of intrusion doth lie 6. He may joyn the mise in a writ of Right in a special manner 7. In a praecipe brought by him he shall not name himself Tenant for life 8. In a Praecipe brought against him he shall not be named barely Tenant for life fo 27. b. And yet he hath four other qualities agreeable to a bare Lessee for life and not to an Estate in Tail 1. If he make a Feoffment in fee this is a forfeiture of his estate 2. If an estate in fee or in fee tail in reversion or remainder descend or come to this Tenant his estate is drowned and the fee or fee tail executed 3. He in the reversion or remainder shall be received upon his default 4. An exchange between a bare Tenant for life and him is good for their estates in respect of their quantity are equal so as the difference stands onely in the quality The state of this Tenant must be created altered c. by the act of God and not by the limitation of the party ex dispositione legis non ex provisione hominis Vide Sect. 33. fol. 28. a. l. 11. Lewes Bowles CAP. IV. Curtesie D'engleterre Sect. 35. A Man seised of an advowson or rent in fee hath issue a daughter who is married and hath issue and dieth seised the wife before the rent became due or the Church void dieth she had but a seisin in law and yet he shall be Tenant by the curtesie because he could by no industry attain to any other seisin Et impotentia excusat legem But if the wife in this case dye before her entry into lands c. it is otherwise Vide lib. fo 29. a. Dier 55. 3 H. 7. 5. A man shal not be tenant by the curtesie of a bare right title use or of a reversion or remainder exâ—ectant upon any Estate of Freehold unless the particular Estate be determined during the coverture * If an estate of freehold in Seigniories Rents Commons c. be suspended a man shall not be Tenant by the curtesie As if a Tenant make a Lease for life of the Tenancy to the Seignioress who taketh a husband hath issue the wife dieth he shal not be tenant c. But if the suspension be for years he shall be Tenant by the curtesie fo 29. b. Vide li. 1 E. 3. 6. If a woman maketh a gift in Tail and reserve a rent to her and her heirs and the donor taketh husband and hath issue and the donee dieth without issue and the wife dieth the husband shal not be tenant by the curtesie of the rent for that the rent newly reserved is by the act of God determined no Estate thereof remaineth But if a man be seised in fee of a rent and maketh a gift in Tail general to a woman she taketh husband and hath issue the issue dieth the wife dieth without issue he shall be Tenant by the Curtesie of the rent because the rent remaineth fol. 30. a. Four things do belong to an Estate of Tenancy by the Curtesie viz. Marriage seisin of the wife issue and death of the wife But it is not requisite that these should concur c. at one time and therefore if a man taketh a woman seised of lands in fee and is disseised and then hath issue and the wife die he shall enter and hold by the curtesie So if he hath issue which dieth before the discent c. Vide lib. By the custom of Gavelkind a man may be Tenant by the curtesie without having any issue 9 E. 3. 38. If after issue c. in this case the husband maketh a feoffment in fee and the wife dieth the feoffee shall hold it during the life of the husband the heir of the wife shall not during his life in sur cui in vita for it could not be a forfeiture for that the estate at the time of the feoffment was an Estate of Tenancy by the Curtesie initiate and not consummate Vod l. Dier 363. 34 E. 3. Cui in vita 13. In divers Cases a man shall by having of issue be Tenant by the Curtesie where a woman shall not be endowed c. 7 E. 3. 6. 17 Ed. 3. 51. A man shall be Tenant by the Courtesie of a Common Sans nomber but a woman shall not be endowed thereof A man entitled to be Tenant by the Courtesie maketh a feofment in Fee upon condition and entreth for the condition broken and then his wife dieth he shall not be Tenant c. for his title c. was inclusively absolutely extinct by the Feoffment * Vide librum fo 30. b. Trs sona done al Beron feme a les heireo que le baron ingenera de corps sa feme en ceo case ambideux ont estate en la T I le pur ceo que ceÌ„ parol heires nest limit a lun plius que a lautre Lect. 28. Nul poit eÌ„re Tenant in taile appears possibility d'issue extinct forsque un des donees ou le donee en special taile ne un ques serra punie de wast pur lenheritance que fuit lun foits en luy Mes cesty en le reversion poit enter sil alien en fee. Sect. 36 Baron prist feme enheritrix Sil ad issue per luy ne vife il scera Tenant per le Curtesie I trust me was even now so full of my Courtesie that I had almost forgotten my craft in the taile wot you what I mean why the two last precedent Sections * If any before stay behind I le bring them after with a witnesse Thomas More Thomas de la More Antecessor meus miles creatus fuit in Parliamento cum Edwardus Princeps ille niger dux cornubiae creatus fuerit Anno Regni Reg. Edwardi tertii vndecimo Anno Dom. 1337. CAP. IV. Dower Sect. 36. LA feme serra endowe de la 3. part des treÌ„s c. que sueront a sa baron durant le coverture issint que el passe l' ago de 9. ans al temps del mort sa baron lib. 2. fol. 93. Binghams Case Dower in the common Law is taken for that portion c. which the wife hath for term of her life of the lands or tenements of her husbands c. Propter onus matrimonii ad sustentationem suiipsius educationem liberorum cum fuerint procreati si vir praemoriatur Dos ex donatione est quasi donarium because the law it self doth without any gift of the husband himself give it
solemnized for that before marriage the woman is not intituled to have dower certainty is the mother of quiet and repose Fol. 34. b. The Law hath provided quod vidua post mortem mariti sui non det aliquid pro dote sua maneat in Capitali messuagio mariti sui per 40. dies post obitum mariti sui infra quos dies assignetur ei dos sua nisi prius ei assignata fuerit c. habeat rationabile estoverium suum interim in Communi yet because there was no penalty c. inflicted the Tenant of the land may drive her to sue for her Dower Mag. Chart. ca. 7. If the heir c. put her out within the 40 days c. She may have her Writ de quarentina habenda A jointure made in satisfaction of Dower is now the furest way c. fol. 34. b. Wheresoever the Writ demands Land Rent c. In certain the demandant after judgement may enter or distrein before any seisin delivered to him by the Sheriff upon a Writ of habere facias seisinam But in Dower c. the demandant cannot enter c. until execution sued for the Writ demandeth nothing in certain Assignment of Dower must either must be by the Sheriff by the Kings writ or else by the heir or other Tenant of Land by consent and agreement between them If the husband make several feoffments of several parcels and dieth and one Feoffee assign Dower to the wife of parcel of Land in satisfaction c. The other Feoffees shall take no benefit of this assignment because they are strangers thereunto and cannot plead the same But in that case if the husband dieth seised of other lands in see simple c. And his heir endoweth the wife of certain of those lands in full satisfaction c. This assignment is good and the several Feoffees shall take advantage of it And therefore if the wife bring a writ of dower against any of them they may vouch the heir c. So as there is a privity in this respect between the heir and the feoffees and by this means the same assignment may be pleaded by the heir that made it 33 Ed. 3. tit Judgm 254 c. The assignment must be certain and absolute and by such as have a freehold or against whom a writ of dower doth lie c. fol. 35. a. Vide lib. There needeth neither livery of seisin nor writing to any assignment of dower becaus it is due of common right Assignment must be of some part of the land or of a rent c. issuing out of the same Dier 91. Sect. 40. Tenant for life of a carue of land the reversion to the father in fee the son and heir apparent endoweth his wife c. Ex assensu patris Tenant for life dieth the husband dieth this is no good endowment c. because the father at the time of the assent had but a reversion expectant upon a freehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet Fo. 35. a. If the heir apparent be within age yet the endowment ex assensu patris is good but otherwise it is of dower ad ostiū ecclesiae 2 H. 3. Dower 199. Fo. 35. b. Ten things are necessarily incident to a deed viz. First Writing 2. In Parchment or Paper 3. A person able to contract 4. By a sufficient name 5. A person able to be contracted with 6. By a sufficient name 7. A thing to be contracted for 8. Apt words required by Law 9. Sealing 10. Delivery Tradition of a deed only to the party to whom it is made is sufficient and then when words are contrary to the Act which is the delivery the words are of none effect non quod dictum est sed quod factum est inspicitur But it may be delivered to a stranger as an escrow c. Because the bare Act of delivery to him without words worketh nothing fol. 36. a. H. 12. R. in C.B. Dier 95. Cartarum alia regia alia privatorum regiarum alia privata alia communis alia universitatis Privatorum alia de puro Feoffamento simplici alia de Feoff conditionali sive conventionali alia de recognitione pura vel conditionali alia de quiete clamantia alia de confirmatione c. Verba intentioni non è contra debent inservire Carta non est nisi vestimentum donationis sive orationis Fleta l. 6. ca. 28. Nemo tenetur armare ad versarium suum contra se Scriptum est instrumentum ad instruendum quod mens vult Carta est legatus mentis Benignae sunt faciendae interpretationes cartarum propter simplicitatem laicorum ut res magis valeat quam pereat Bract. l. 2. fo 94 c. Nihil tam convenias est naturali aequitati quam voluntatem domini volentis rem suam in alium transferre ratam habere Plow Com. fo 161. b. Re verbis scripto consensu traditione Junctura vestes sumere pacta solent Pl. Co. 161. Verba cartarum fortius accipiuntur contra proferentem Generale dictum generaliter est intelligendum Verba debent intelligi secundum subictam materiam Carta de non ente non valet Sect. 41. A jointure was no bar of Dower at the Common Law For a right or title that one hath to a Freehold cannot be barred by acceptance of collateral satisfaction But now by the statute of 27 H. 8. If a jointure be made to the wife according to the purvieu of that statute it is a bar of her Dower Six things are required to a perfect Jointure 1. It is to take effect for her life in possession or profit presently after the decease of her husband 2. That it be for term of her own life or greater estate 3. It must be made to her self and to no other for her 4. It must be made in satisfaction of her whole dower and not of part c. 5. It must bee either expressed or averred to be in satisfaction c. 6. It may be made either before or after marriage If the jointure be made before marriage the wife cannot wave it and claim her dower at the Common Law but if it be made after marriage she may wave the same c. Fo. 36. b. Vide c. Dier 358. The wife shall not be barred of her jointure albeit her husband commit Treason or Felony as she shall be of her Dower ad ostium Eccle. c. By the Common Law But now at this day by the statute of the 1 Ed. 6. c. 2. and 5 Ed. 6. c. 11. The wife of a man attainted of Felony shall not lose her dower A jointure made to the wife under or above the age of nine years is good and so if Dower ad ostium ecclesiae c. being made by assent c.
vie and yet the Lessee may assigne it to whom he will or if he hath already an Estate for another mans life without these words then it were good for him to assign his Estate to divers men and their heirs during the life of Ce ' que vie Lit. 167. Dier 253. If a Lease be made to A c. For terme of his owne life and the lives of B. and C the lessee hath but one freehold which hath this limitation during his own life and the lives of two others and here note a diversity between several estates in severall degrees and one Estate with several limitations for in the first an Estate for a mans owne life is higher then for another mans life but in the second it is not l. 5. Rosses case If Tenant for life infeoffe him in the remainder for life this is a surrender and no forfeiture and albeit an Estate for term of a mans own life be but one Freehold yet may severall Freeholds in certain Cases be derived out of the same Vide libr. A. and B. joyntenants A. for life and B. in Fee joyne in a Lease for life A. hath a reversion and shall joyn in an action of Waste Tenant for life and he in the reversion joyne in a Lease for life it is said that they shall joyn in an action of wast and that the lessee for life shall recover the place wasted and he in reversion dammages Fo. 42. a F.N.B. 59. F. 13. H. 7. 15. If a man make a Lease of a Mannor worth 20. l. per annum to another until 100 l. be paid in this case because the annuall profits of the Mannor are incertain he hath an estate for life if livery be made determinable upon the levying of a 100 l. Fol. 42. a. And yet in some Cases a man shall have an incertaine interest in Lands c. and yet neither an Estate for life for years or at will As if a man by his will in writing devise his lands to his executors for payment of debts and untill his debts be paid in this Case the executors have but a chattell and an incertain interest in the land untill his debts be paid for if they should have it for their lives then by their death their estate should cease and the debts unpaid but being a Chattell it shall go to the executors of executors c. And so note a diversity between a devise and a conveiance at the common Law in his life time l. 8. Mannings The Law which abhorreth injury and wrong will never so construe any Act c. as it shall work a wrong whensoever the words of a Deed or of the parties without Deed may have a double intendment and the one standeth with Law and Right and the other is wrongfull and against Law the intendment that standeth with Law shall be taken Fo. 42. b. The Law more respecteth a lesser estate by right than a larger estate by wrong Tenant in taile made a Lease to another for terme of life generally and after released to the Lessâ—e and his heires albeit between the Tenant in Taile and him a Fee simple passed yet after the death of the Lessor the entry of the issue in Tail was lawfull which could not be if it had been a Lease for the life of the Lessee foâ— then by the release it had been a discontinuance executed Sect. 57. Tenant per vie ad franktenement null auter de meind Estate Many that have capacity to take have no ability to infeoffe c. As Aliens borne Tratiors Felons c. Ideots madmen a feme covert an infant a man by dures c. For the feoffement c. of these may be avoided Brit. fo 88. In judgment of Law the King as King cannot be said to be a minor for when the Royall body politique of the King doth meet with the naturall capacity in one person the whole body shall have the quality of the Royall politique c. omne majus trabit ad se quod est minus A Licence for alienation grew by the Statute of the 20. H. 3. 20. Ass pl. 17. by Skipwith vide lib. By the Statute 1 E. 3. ca. 12. 34. Ed. 3. cap. 15. Although the Kings Tenant in chiefe c. do alien all or any part without Licence yet is there not any forfeiture of the same but a reasonable fine therefore to be paid The Statute of 18. E. 1. De quia Emptor c. hath in effect as to the common persons taken away the Statute of Mag. Charta cap. 32. for thereby it is provided Quod liceat unicuique libero homini trans suas c. Seu partem inde ad voluntatem suam vendere ita quod Feoffatus teneat c. de capitali domino Note first that this word liceat proveth that the Tenant could not or at least was in danger to alien parcell of his Tenancy c. upon the said Act of Mag. Charta 2. That upon the Feoffment of the whole the Tenant shall hold of the chief Lord. 3. That the Tenant might enfeoffe one part to hold pro particula of the chief Lord. But this Act the King being not named doth not take away the Kings Fine due to him by the Statute of Mag. Charta Tenant by Statute Merch. Statute Staple or Elegit are said to hold land ut liberum Tenementum untill their debt be paid and yet they have no Freehold but a Chattel c. But ut is similitudinary because they shall by the Statutes have an Ass as the Tenant of the Freehold shall have and yet nullum simile est idem 28. Ass p. 7. w. 2. c. 18. St. Merc. 13. E. 1. 27. E. 3. c. 9. 23. H. 8. c. 6. F.N.B. 178. CHAP. VII Tenant for Term of yeers Sect. 58. THere be three kinds of persons who at this day may make leases for three lives or XXI yeers c. which could not so doe when Littleton wrote viz. 1. Any person seised of an estate tail in his own right 2. Any person seised of an estate in Fee simple in the right of his Church 3. Any husband and wife seised of any estate of inheritance in Fee simple or Fee taile in the right of his wife or joyntly with his wife before the coverture or after And these are made good by the Statute of 32. H. 8. But the Statute of 1. Eliz. 13. El. 18. El. and 1. Reg. Jac. are disabling Vide libr. c. l. 5. fo 6. If two severall Tenants of severall Lands joyne in a lease for years by Deed indenture these be severall leases and severall confirmations of each of them from whom no interest passeth and work not by way of conclusion in any sort because severall interests passe from them Fol. 45. a. Vide quaere Whensoever any interest passeth from the party there can be no estoppell against him H. 44. El. R. 1459. ca. 8. Leases for lives or years are of
vide c. The Custome that enableth the Lord of a Manor to grant a greater estate enableth him to grant a lesser Omne majus continet in se minus H. 36. El. R. 492. Barnes B. R. A letter of Attorney may be contained in a Deed of feoffment beginning Omnibus Christ fidel c. for one continent may contain divers Deeds to severall persons but if it be by Indenture c. it is otherwise Though the Attorneys warrant be generall to deliver seisin yet hee cannot deliver seisin within the view for his warrant is intendable or implyed in law of an actuall and expresse livery and not of a livery in law P. 3. El. in C.B. in Yachams case Oportet quod donationem sequatur rei traditio etiam in vita donatoris donatorii Bract. l. 2. fo 16. Therefore a letter of Attorney to deliver livery of seisin after the decease of the Feoffor is voyd But this is to be understood of sole persons c. and not of a Congregation aggregate of many persons capable 18. H. 8. 3. 11. H. 7. 19. Sect. 67. There be two kinds of Wasts viz. Voluntary and Actuall or Permissive Waste may be done in houses by pulling them down or by suffering the same to be uncovered If the Tenant do or suffer Waste to be done in houses yet if he repair them before any action brought there lieth no action of Waste against him but he cannot plead quod non fecit vastum but the speciall matter If the tenant build a new house it is waste and if he suffer it to be wasted it is a new waste 42. E. 3. 21. If the tenant suffer the houses to be wasted and then fell down Timber to repair the same this is a double waste 44. E. 3. 44. F. N. B. 59. B. Note there is a waste Destruction and Exile Waste properly is in houses gardens and in timber-trees either in cutting of them down or topping of them or doing any act whereby the timber decaies The cutting of dead wood that is ubi arbores sunt aridae mortuae cavae non existentes marhemiuÌ„ nec portantes fructus nec folia in aestate is no Waste Dier 332. If the tenant cut down underwood as he may by law yet if he suffer the young germins to be destroyed this is destruction 20 E. 3. Waste 32. 10 H. 7. 2. Exile or destruction of Villains or tenants at will or making them poor where they were rich when the tenant came in whereby they depart from their tenures is Waste fol. 53. a. b. vide libr. If the estate of the reversion continueth not but is altered the action of Waste for Waste done before which consists in privity is gone An action of waste doth lie against the Assignees of tenant by the Curtesie and of tenant in Dower and against the Assignee of the Guardian in Chivalry in all other cases the action of waste shall be brought against him that did the waste fo 54 a. vide c. An Infant a Baron and Feme shall be punished for waste done by a stranger and so shall the wife that hath the estate by survivor for waste done by the husband in his life time if she agree to the estate F.N.B. 36. b. If a lease be made to A. for life the remainder to B. for life the remainder to C. in fee After the death or surrender of B. in the mean remainder an Action of waste doth lie But if a lease for life be made the remainder for years the remainder in fee an Action doth lie presently during the term in remainder But if a man make a lease for life or years and after grant the reversion for years the lessor shall have no Action of waste during the years for he himself hath granted away the reversion in respect whereof hee is to maintain his Action Otherwise it is if hee had made a lease in reversion which had been but a future interest c. Vide c. 4. E. 3. 18. F. tit Waste No Action of waste lieth against a Guardian in Soccage but an action of trespasse Nor against Tenant by Statute Staple c. or Elegit Stat. Marlebridge cap. 17. F. N. B. 59. E. See in the Register five severall writs of waste Two at the Common law for waste done by Tenant in Dower or the Guardian and three by speciall or statute Law for waste done by Tenant for life for years and Tenant by the courtesie Qui haeret in littera haeret in cortice Vide c. As tenant for half a yeer is within the remedy of Stat. Gloc. ca. 5. which giveth waste against a lessee for life or yeers Lessee for life the remainder to him for 21 yeers he hath both estates in him so distinctly as he may grant away either of them For a greater estate may uphold a lesser but not è converso fol. 54. b. If a man make a lease for life to one the remainder to his Executors for twenty one years the term for yeers shall vest in him For even as an Ancestor and an Heir are correlativa as to inheritance as if an estate for life be made to A. the remainder to B. in taile the remainder to the right heires of A. the fee vesteth in A. as if it had been limited to him and his heires even so are the Tâ—stators and Executors Correlativa as to any Chattel CHAP. VIII Of Tenant at will Sect. 68. EVery lease at will must be in law at the will of both parties Possessio precaria nuda pro voluntate domini potest revocari fol. 55. a. Fleta l. 3. Tenant at will shall reap the crop which he sowed in peace albeit the lessor doth determine his will before it bee ripe for that the estate of the lessee is uncertain and it is good for the Commonwealth that the ground be sown And this is not onely proper to a lessee at will but to every particular tenant that hath an estate incertain And therefore if tenant for life soweth the ground and dyeth his executors shall have the Corn. And the same law is for lessee for yeares of tenant for life So if a man be seised of land in the right of his wife c. his executor shall have the Corn. But if husband and wife bee joynt-tenants of the land and the husband soweth the ground and the land surviveth to the wife it is said that she shall have the Corn Dier 316. But where the estate of the lessee being incertain is defeasible by a right Paramount or if the lease determine by the act of the lessee as by Forfeiture Condition c There he that hath the right Paramount or that entreth for any forfeiture c. shall have the Corn. fol. 55. b. l. 5 106 If a disseissor sow the ground and sever the Corn and the disseissee re-enter he shall have the Corn because he entreth by a former title and severance or removing
E. 4. 1. b. 4 E. 4. 10. 3. For matters within the Realm 5 E. 4. 30. the Custom of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder 4. By Certificate of the Sheriff upon a Writ to him directed 10 H 10. in case of Priviledge if one be a Citizen or a Forreiner 5. Tryal of Records by Certificate of the Judges in whose custody they are by Law All these be in Temporal causes 6. In causes Ecclesiastical as loyalty in Marriage general Bastardy Excommengment Profession c. which are to be tried by the Certificate of the Ordinary Also if a Subject of the King be killed by another of his Subjects out of England in any Forreign Country the wife or he that is heir of the dead may have an Appeal for this Murther or Homicide before the Constable and the Marshal whose sentence is upon the Testimony of Witnesses or Combate fo 74. a. vide lib. Stat. 1 H. 4. cap. 14. 13 H. 4. fol. 5. c. Anno 25 El c. CHAP. IV. Knights service Sect. 103. TEnure per homage fealty escuage est a tener per service de Chivaler trait a luy gard mariage reliefe Si haereditas teneatur per servitium militare tunc per leges infans ipse haereditas ejus c. per dominum feodi illius custodientur c. Fortesc ca. 44. Audacter quilibet facit quod se scire non diffidit Amongst the Lawes of St Edward the Confessor it is thus provided Debent enim universi liberi homines c. secundum foedum suum sciendum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum domini Regis explendum peragendum Lambert fo 135. a. And William the Conqueror confirmed that Law c. And therefore if after the Lord hath the Wardship of the body and land the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the Infant he shall be out of Ward c. for he was in Ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct cessante causa cessat causatum fol. 76. a. Regularly there be six incidents to Knights service viz. Two of Honor and Submission as Homage and Fealty and four of Profit as Escuage Ward Marriage and Relief Also these be other incidents to Knights service besides these as aid per faire fitz Chivalrer and aid per file marier c. Relevium is derived from Relevare Quia haereditas quae jacens fuit per antecessoris decessum relevatur in manus haeredum propter factam relevationem facienda erit ab haerede quaedam praestatio quae dicitur relevium Bract. lib. 2. ca. 36. fo 84. By custome the heires of him that holdeth in Socage may be in a word * By the common Law the heir shall not be in ward unlesse he claime as heire by discent Vide Libr. In many Cases the heire shall be in ward albeit the Tenant died not seised c nor in the Homage of the Lord. But if one levy a fine executory as fur grant and render to a man and his heires and he to whom the Land is granted and rendred before execution dieth his heire being within age entreth he shall not be in ward for his ancestor was never * tenant to the Lord. Vide c. If the disseisie die his heire being within age the Lord shall have the wardship of the heir of the body of the disseisee and if the disseisor dieth seised and his heire within age the Lord may seise the wardship of his heire also and of the Land also c. Vide c. For the ease of the heire and for avoiding of danger c. The heire for the most part after his full age sueth out a speciall livery which containeth a beneficiall pardon c. Fo. 77. a. Vide quaere A common person shall have nothing in ward but that which is holden of him But the King by his Prerogative shall not only have such Lands c. which the heire of his Tenant by Knights service in Capite holdeth of others but such inheritances also as are not holden at all of any as rent-charges rent-seck Fayres Markets Warrens Annuities c. Fo. 78. a. Stamf. pr. Fo. 8. * The Law is changed since Littleton wrote in many Cases both for the marriage of the body and for the wardship of the Lands and a farre greater benefit given to the Lords then the common Law gave them and some advantage given to the heires which before they had not As if the Father had made an estate for life or a gift in taile of Lands holden by Knights service to his eldest Son or other heir apparant within age the remainder in Fee to any other and dyed the heir should not have been in ward for this was out of the Stat. Merlebridg But at this day the heir shall be in that case in ward for his body and a third part of his land So if the Father had infeoffed his eldest Son within age and a stranger and the heirs of the son and died the son should have been out of ward but at this day he shall be in ward for his body and for a third part of his moity Fo. 78. a Vide c. The benefits that grew to the subject by acts of Parliament were that Tenants in Fee simple might devise their lands in such manner and form c. Also that the Father might infeoffe his eldest Sonne or other heir lineal or collaterall holden by Knights service and two parts of the Land shall be out of ward Lib. 8. fo 83. fo 163. And both the Statute of 32 and 34 H. 8. Concerning Wills and Wardships are many waies prejudiciall to the heirs as if Tenant by Knights service make a Feoffment in Fee to the use of his wife and heir heirs or to the use of a younger Sonne and his heirs or wholly for the payment of his debts In these cases although nothing at all of the Lands so holden descend to the heir but he is disherited of the same yet his body shall be in ward In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt presumenda vera tamen honesta possibilia Lex semper intendit quod rationi convenit By intendment of Law the heir is not able to do Knights service before his full age of 21. years and therefore hath a gardian c. A woman hath seven ages for several purposes appointed to her by Law as seven years for the Lord to have aid pur file Marr. Nine years to deserve Dower 12. years to consent to marriage
of Weyland being abjured the Realm for Felony in the year before Margery de Mose his wife and Richard son of the said Tho. exhibited their Petition of Right into the Parliament Anno 19. E. 1. for the Manor of Sobbir wherein her husband had but an Estate for life joyntly with her and the inheritance in Richard the son by fine The Earl of Glocester Lord of the fee who claiming the land by Escheat had taken the possession thereof alleged Quod non fuit jure consonum quod aliqua foemina intraret in aliquas terras vivente marito suo c. Tamen Coram Consilio Domini R. vocat ' Thesaurar ' Baron Justiciariis de utroque Banco concordat ' est quod praedicta Margeria rehabeat talem seiseinam c. secundum perportum finis praedict ' c. Vide lib. fo 33. a. If the husband had aliened the land of his wife and after had been abjured the Realm for Felony the wife shall have a Cui in vita in his life time 31 E. 1. Cui in vita 31. The wife of the King of England is of ability and capacity to grant and to take to sue and to be sued as a feme sole by the Common Law And such a Queen hath many Prerogatives as she shall find no pledges for such is her dignity as she shall not be amerced 18 E. 3. 1 2. The Queen shall pay no Toll N. B. 235. The Writ of Right shall not be directed to the Queen no more than to the King but to her Bayliff F.N.B. 1. F. But a Protection shall be allowed against the Queen but not against the King neither shall the Queen be sued by Petition but by a Praecipe 21 E. 3. 13. 11 H. 4. 76. b. If A. be bound to the Abbot of D.A. is professed a Monk in the same Abbey and after is made Abbot thereof he shall have an action of Debt against his own Executors 4 E. 4. 25. 6 E. 4. 4. 22 H. 6. 5. 45 E. 3. 10. a. 5 H. 7. 25. b. Sect. 201. Excommunicato interdicitur omnis actus legitimus ita quod agere non potest nec aliquem convenire licet ipse ab aliis possit conveniri Excommunicatio nihil aliud est quam Censura à Canone vel judice ecclesiastico prolata inflicta privans legitima Communione Sacramentorum quandoque hominum Bract. lib. 5. fo 415. 426 c. F.N.B. 64. F. None can certifie Excommengment but onely the Bishop or one that hath Ordinary Jurisdiction and is immediate Officer to the Kings Courts As the Archdeacon of R. or the Dean and Chapter in time of vacation The Common Law disallows all acts done in disability of any Subject of this Realm by any forren power as things not authentique wherof the Judges should give allowance 16 E. 3. Sxcom 4. N.B. 64. For the manner of Election of Bishops vide le statute of 25 H. 8. None but the Kings Courts of Record as the Kings Bench c. Justices of Gaol-delivery c. can write to the Bishop to certifie Bastardy Mulierty loyalty of Matrimony c. for it is a rule in Law That none but the King can write to the Bishop to certifie Nullus alius praeter Regem potest Episcopo demandare inquisitionem faciendam Bract. l. 3. 106. Jour is the day of appearance of the parties or continuance of the plea. And in all Summons upon the Original there be 15 daies after the Summons before the appearance But if the Original be returned tarde and Sommons alias goeth forth there be nine Returns between the Teste and the Return 8 H. 6. 20. 8 Eliz. Dyer 251. And before the Statute of Articuli super Chart. cap. 15. 28 E. 1. in all Summons and Attachments in plea of Lund there shall be contained the term of 15 daies But by consent other than common dayes may be taken 11 H. 6. 23 The use of the Kings Bench at this day is That if the offence be committed in another county than where the Bench sits and the Indictment be removed by Certiorari there must be 15 daies between every Process and the Return thereof c. Lib. 9. 118 Zanchers Case fo 134. b. vide c. There is dies specialis as in an Assize in the Kings Bench or Common Pleas the Attachment need not be 15 daies before the appearance F. N.B 177. cap. The day of Nisi prius and the day in bank is all one day as to pleading but not to other purposes 21 H. 6. 10. 20. vide qu. fo 135. a. Resummons or Reattachments are Writs that the Demandant or Plaintiff after he hath obtained the Letters of his Absolution may sue out to bring the Tenant or Defendant again into Court to have day to answer unto him and these Writs do lie in all cases when the plea is discontinued or put without day either in this case or in case where the Demandant or Tenant hath his age or for the non venue of the Justices or in case of a protection or Essoign de service le Roy c. Bracton lib. 5. 425. Brit. cap. 74. l. 7. 29 30. Note That in the case of Excommengement the Writ shall not abate but the plea to be put without day untill the plaintiff purchase his Letters of Absolution c. but in the other five cases sc of a Villain c. ante fo 55. a. the Writ shall abate fo 135. b. But in the case of Outlawry the writ shall abate if he obtain not his pardon 44 E. 3. 27. At this day Ideots Madmen c. may sue for the Sutes must be in their name but it shall be followed by others An Ideot shall not appear by Guardian or Prochein amy or Atturney but hee must be ever in person 33 H. 6. 18. F. N. B. 27. G. But an Infant or a minor shall sue by Prochein amy and defend by Guardian 27 H. 8. 11. 20 E. 4. 2. F. N. B. 27. H. Sect. 202 203 204. Si lenfant al age de 14 ans enter en religion est professe le gaodein nad auer remedie quant al gard le corps forsque breve de ravishment de gard enveâ—s le soveraigne del meason l'entry d'asc ' estaut de pleine age que eÌ„ heire lenfant eÌ„ congeable legardein en tiel case nad asc ' remedie pur le terre c. Manumittere idem est quod extra manum vel extra potestatem alterius ponere Every Manumission is an infranchisement but every infranchisement is not a Manumission Mirr cap. 2. Sect. 18. There be two kindes of Manumissions 1. Express when the Villain by deed in express words is manumissed and made free 2. Implyed by doing some act that maketh in judgement of Law the Villain free c. Libertinum ingratum leges civiles in pristinam redigunt servitutem sed leges Angliae semel manumissum semper liberum judicant
infranchised Kellaway 134. But if the Lord sue his vill by appeal of Felony where he was indicted of the same before this shall not enfranchise the villain and although he be acquited upon the appeal for he shall recover no damages against his Lord. W. 2. c. 12. 22. Ass p. 39. 14 H. 7. 2. Sect. 204. and 210. c. None ought to pay fines for the marriage of their daughters without licence of the Lord c. but villains of blood or freemen holding in Villenage 43 E. 3. 5. Additio probat minoritatem Haereditas inter masculos jure civili est dividendae Fort. c. 40. Haud facile emergunt quorum virtutibus obstat Res angusta domi Horace By the Statute of 31 H. 8. a great part of Kent is made descendable to the eldest son 18 H. 6. c. 1. For In plures quoties rivos deducitur amnis Fit minor aec unda deficiente perit Sect. 211. and 212. There is a speciall kind of Borough of Engl. as it shall descend to the younger son if he be not of the half blood and if he be then to the eldest son 32 E. 3. tit age 81. within the mannor of B. in Comit. Berks there is such a custome that if a man hath divers daughters and no son and dieth the eldest daughter shall onely inherit and if he have no daughter but sisters the eldest sister by the custome shall inherit and sometime the youngest M. 10. Ja. Eliots c. Brit. 187. b. Hor. Imberbis juvenis tandem Custode remoto Gaudet equis Canibusque aprici gramine Campi Cereus in vitium flecti monitoribus asper Vtilium tardus provisor prodigus aeris Sublimis cupidusque amata relinquere pernix Nil homine insirmum tellus animalia nutrit Inter Cuncta magis Home Aliquis non debet esse judex in propria causa 10 E. 3. 23. 2 H. 3. 4. H. 4 H. 4. Salop. Coram Rege Praescription que est encounter reason ne doit est allow quia malus usus abolendus est In consuetudmibus non diuturnicas temporis sed soliditas rationis consideranda est Fo. 141. a. Rex c. pro coÌ„i utilitate terrae Hiberniae pro unitate terrarum provisum est quod omnes leges c. quae in Reg. Angl. tenentur in Hybernia teneantur c Sicut Johannes Rex cum illic esset statuit firmiter mandavit c. Rot. pat 30 H. 3. Vid. lib. 141. b. By an Act of Parliament tent 10 H 7. est enact que touts stat ft. in England devant cela temps ferront in force in Royalme de Ireland CHAP. XII Of Rents Sect. 213. REnt service est lou le tenant tient la terre de son Seignior per service and certain â—ent le Seignior poit distr pur ceo de common right Rent is reserved out of the profits of the Land and is not due till the Tenant or Lessee take the profits for reddere nihil aliud est quam acceptum aut aliquam partem ejusdem restituere seu reddere est quasi retro dare Lib. 10 148. Cluns Case Pl. Com. 138 139 c. Browning c. A rent service cannot be reserved out of any inheritance but such as is manurable whereinto the Lord may enter and take a distresse as in Lands c. Reversions Remainders and as some have said out of the herbage of Lands and reg not out of any inheritance incorporeall or that lie in grant Lib. 5. fo 4. Seignior Mountjoyes c. l. 7. f. 23. Buts c. Pl. com 139. By Act of Law one rent or service may issue out of another 3 H. 6. 21. And though it be out of Lands c. Yet it must be out of an estate that passeth by the conveyance and nor out of a right 10 E. 4 3. b. As if the disseisee release to the disseisor of the Land reserving a rent the reserve is good Fo. 144. a. Non debet esse reservatio de proficuis ipsis quia ea conceduntur sed de redditu novo extra preficua 38 H. 6. 38. a Fol. 142. a. The common Law is the best and most common birth-right that the subject hath for the safeguard of his lands c. 2 H. 4. c. 1. Justice is the daughter of the Law for the Law bringeth her forth A rent service may be reserved without Deed 35 H. 6. 34. Sect. 215 c. Ou home sur un done en Taile ou lease c. voile reserv a lu rent service il covient que le reversion c. Soit en le donor ou lessor c. This is not to be understood only of a reversion immediately expectant upon the gift or Lease for if a man make a gift in taile the remainder in taile reserving a rent and keep the reversion in himselfe this is a rent service Fo. 142. b. Reserver sometimes hath the force of saving or except so as sometimes it serveth to reserve a new thing viz. a Rent 8 E. 4. 48. Sometime to except part of the thing in esse that is granted 35 H 6. 34. In the grant of a reversion the rent may be excepted but not the services If a man make a gift in tail without any reservation the donee shall hold of the donor by the same services that he held over The Law regardeth equity and equality without any provision or reservation on the party B. f. 100. Ipsae etenim leges cupiunt ut jure regaâ—tur But if the Lessor for life or years reserveth nothing he shall have fealty only which is an incident inseparable to the reversion 38 E. 3. 7. Littl. fo 4. Sect 217. and 218. Rent must be reserved to him from whom the state of the Land moveth and not to a stranger 18 E. 2. Ass 381. But some do hold that otherwise it is in the case of the King 35 H. 6. 36 * Note that upon a reservation of a rent upon a feoffment in Fee by Deed Indenture the feoffor shall not have a Writ of annuity because the words of reservation as Reddendo c. are the words of the Feoffor and not of the Feoffee albeit the Feoffee by acceptance of the State is bound thereby 33 E. 3. Annuity 52. 1 H. 4. 5. And it is holden that a reservation upon a Feoffment in Fee made by Deed Poll is good 8 E 4. 8. Auxi si un home SeÌ„i de cert terre grant per unft Poll ou per Indentare un annual rent issuant hors de m. la terre a un auter in Fee ou in fee taile ou per terme de vie c. ovesque clause de distresse c. donques ceo est rent charge si le grant soit sans clause de distresse donques il est r. seck i. e. redditus siccus Also a man may have a rent by prescription 19 E. 3. Title 34. Sect. 219. If a man grant by his Deed a rent charge to another and
at the time of the estate made c. 8 H. 7. 7. b. 1. Limitation in respect of impossibility 4 H. 6. 2. Lib. 8. Fo. 43. c. Whittinghams c. 5. H. 7. a. 2. Limitation in respect of necessity Fo. 202. a. Vide c. 3. In some cases the Feoffor by his reentry shall be in his former estate but not in respect of some collaterall qualities as if a Copihold escheat and the Lord make a Feoffment in Fee upon condition and enter for the condition broken for that the custome or prescription for the time is interrupted Lord and Tenant by Fealty and rent the Lord is seised of his rent and granteth his Seigniory to another in Fee upon condition the Tenant attorn and payeth his rent to the grantee the condition is broken the Lord distreins for his rent and rescous is made he shall be in his former estate and yet the former seisin shall not enable to have an Ass without a new seisin 15. Ass 12. Tenant in taile It. Feoffment in Fee Sur. condition 8 H. 7. 7. If tenant for life ft. Feoffment c. and ent pur condition broken the state is reduced but the forfeiture is not purged 43. Ass 47. 13. E. 4. 4. Sect. 327. When the Feoffor is satisfied either by perception of the profits or by payment or tender and refusall or partly by the one and partly by the other Fo. 203. The Feoffor by his reentry gaineth no estate of freehold but an interest by the agreement of the parties to take the profits in nature of a distresse If a man make a Lease for life with a reservation of a rent and such a condition if he enter for the condition broken and take the profits of the land Quousq c. he shall not have an action of debt for the rent arere for that the freehold of the Lessee doth continue and therefore the book to the contrary 30. E. 3. f. 7. is false Printed and the true case was of a lease for years Note a diversity viz. If a man make Aleas pur ans reserve a rent with a condition that if the rent be behind that the lessor shall reenter and take the profits untill thereof he bee satisfied there the profits shall be counted as parcell of the satisfaction and during the time that he so taketh the profits he shall not have an action of debt for the rent But if the condition be that he shall take the profits untill the Feoffor be satisfied c. without saying thereof c. There the profits shall be taken to be no part of the satisfaction but to hasten the lessee to pay it 27 H. 8. 4. And as Littleton here saith that untill he be satisfied he shall take the profits in the meane time to his own use 31 Ass pl. 26. Vide lestatute de Morton c. 6. and c. 7. without this word inde Sect. 329. If a man by Indenture letteth Lands for years provided always and it is counted and agreed between the said parties that the lessee should not alien it was adjudged that this was a condition by force of the proviso and a Covenant by force of the other words Vide Sect. 220. Dyer 28 H. 8. fo 13. 27 H. 8. fo 14. 15. Seignior Cromwells c. Lib. 2. fo 71. Lib. 8. 89. Frances c. Vn Feoffment in Fee ē fait rendition rent c. Sur. condition c. en cest case lestate del Feoffee ē defeasible si le condition ne soit performe c. vide Sect. 325. Sect. 330. Inesse potest donationis modus conditio sive causa Scito quòd ut modus est si condi quia causa 4. Mar. Dyer 138. b. If a man grant an annuity pro una acra terre this word pro sheweth the cause of the grant and therefore amounts to a condition for if the acre of land be evicted by an elder title the annuity shall cease for cessante causa cessat effectus 24 E. 3. 34. 9 E. 4. 20. 14 E. 4. 4. 15 E. 4 2. But if A. pro consilio impenso make a Feoffment or a Lease for life of an acre or pro una acra terrae c. Albeit he denieth counsell or that the acre be evicted yet A. shall not reenter for in this case there ought to be legall words of condition or qualification for the cause or consideration shall not avoid the state of the Feoffee and the reason of this diversity for that the state of the land is executed and the annuity is executory fol. 204. a. vide c. If a man make a Feoffment in Fee ad faciend or faciendo or ea intentione or ad effectum or ad proposit that the Feoffee shall doe or not doe such an act none of these words make the state in the land conditionall Hill 18 Eliz. in Com. Ban. Dyer 138. Pl. Com. 142. d. st lib. 2. c. 34. It was adjudged H. 40 Eliz. Rot. 161. Browne c. That a Lease for years was but a contract which may begin by word and by word may be dissolved Pl. Com. 142. Sometime in case of lands c. casa shall make a condition as if a woman give lands to a man and his heirs causa matrimonii prolocuti and if she marry the man or the man refuse to marry her she shall have the land again to her and to her heirs But otherwise it is if a man give land to a woman c. For the man may and ought to ask advise of learned counsell 34 Ass 1. 5 H. 4. 1. Quod non licebit to the lessee dare vendere c. Sub poena forisfacturae amounts to make the Lease for years defeasible 3 E. 6. Dyer 65 66. 4 Mar. 138. Sect. 331 332. Quae dubitationis causa tollendae inseruntur communem legem non laedunt expressio eorum quae c. Mortgage i.e. mortuum vadium Vivum vadium is As if a man borrow 100. l. of another and maketh an estate of lands unto him untill he hath received the said summe of the issues and the profits of the land so as in this case neither money nor land dyeth or is lost Vivum autem dicitur vadium quia nunquam moritur ex aliqua parte quod ex suis proventibus acquiratur Sect. 334. Feoffment ē fait en mortgage le feoffor mor ' devant le jour de payment des deiners c. Si l'heir del feoffor tender le mony al mes le jour c. le feoffee ceo refuse c. donques poit le heire enter en le terre pur ceo que il ad interest de droit en le Condition c. Et le feoffee en ceo case nad asc ' remedy daver le mony per le Commonley Sect. 335. The Condition descends unto the heir and therefore the Law that giveth him an interest in the Condition giveth him an ability to perform it and hereby the intent of the
by act in Law and some by act in praesenti and some in futuro The feoffee is disabled when he cannot convey the land over according to the condition in the same plight quality and freedom as the land was conveyed to him 13 H. 7. 23. b. 32 E. 2. Barre 264. 21 Ass 28. 38 Ass pl. 7. Sect. 357. Si le Feoffee sur condition d'enfeoffer un auter c. fait lease pur ans a commencer al jour a vener this is a present disability and cause of entry for that the land is not in that freedome c. as it was conveyed to the Feoffee and after the State made over according to the condition the land shall be charged therewith l. 2. f. 59 60. Julius Winningtons case Plight signifieth not onely the estate but the habit and quality of the land and extendeth to rent charges and to a possibility of Dower Vide S. 289. fo 221. b. If the feoffee were married at the time of the feoffment then the dower can be no disability because the land shall remain c. as it was at the time of the feoffment made unto him The Feoffee being disabled at any time though the same continue not yet the Feoffor may re-enter And note a diversity between a disability for a time on the part of the Feoffee and on the part of the Feoffor For if a man make a Feoffment in fee upon condition that the Feoffee before such a day shall re-enfeoffe the Feoffor the Feoffee taketh wife and the wife dieth before the day yet may the Feoffor re-enter for that maintenant by the disability of the Feoffee the condition is broken But so it is not by the disability of the Feoffor or his heirs for if they perform the condition within the time it is sufficient 21 E. 4. 55. Trin. 18 El. in C. Ban. Sir Th. Wiats case Sect. 358. If the Feoffee be disseised and after binde himself in Statute Staple c. or take wife this is no disability in him for that during the disseisin the land is not charged therewith c. Fo. 222. a. Note there are other disabilities implied 18 Ass pl. ultimo 19 E. 3. 39. Lib. 2. fo 80. b. Snr. Cromwels case If a man grant an advowson upon condition that the grantee shall regrant the same to the grantor in tail In this case if the Church become void before any regrant or before any request made by the grantor he may take advantage of the condition because the Advowson is not in the same plight c. P. 14. El. in Com. ban If the Feoffee suffer a recovery by default upon a fained title before execution sued the Feoffer may reenter for this disability 44 E. 3. 9. Sect. 359 360. If an agreement be made between two that the one shall infeoffe the other upon condition in surety of the paiment of certain mony and after the livery is made to him and his heirs generally the State is holden by some to be upon condition in as much as the intent of the parties was not changed at any time but continued at the time of the livery 34 Ass pl. 1. 13 E. 3. Estopp 177. Vn Feoffment sur condition que le Feoffee ne alienam a nulluy cest condition est void So it is of a devise grant release confirmation c. whereby a fee simple doth passe 33 Ass 11. Doct. St. 39. 124. 13 H. 7. 23. 21 H. 6. 34. a. 8 H. 7. 10. b. Arg. ex absurdo Vide S. 7 22. fo 213. a. Vide c. Iniquum est ingenuis hominibus non esse liberam rerum suarum alienationem rerum suarum quilibet est moderator Arbiter Reg. Non valet pactum de re mea non alienanda But these are to be understood of conditions annexed to the grant or sale it self in respect of the repugnancy and not to any other collaterall thing Some have said that a man may grant a rent charge newly created out of Lands to a man and his heirs upon condition that he shall not alien that that is good because the rent is of his owne creation but it is against the reason of Littleton c. Before the Statute of Quia empt ter the Lord might have restrained the alienation of his Tenant by condition because the Lord had a possibility of Reverter and so it is in the Kings case at this day because he may reserve a tenure to himselfe 14 H. 4. 13 H. 7. 23. 21 H. 7. 8. l. 5. 56. Knights case If A. be seised of bl acre in fee and B infeoffe him of wh acre upon condition that A. shall not alien B. acre the condition is good for it is annexed to other land and ouster not the Feoffee of his power to alien the land whereof the Feoffement was made and so no repugnancy c. And so it is of gifts or sales of Chattels reals or personals Sect. 361. If a Feoffment in fee be made upon condition that the Feoffee shall not infeoffe F.S. or any of his heirs or issues c. this is good Pl. Com. 77. a. 8 H. 7. 10. b. 21 E. 4. 47. a. If the feoffee in this case infeoffe I. N. of intent that hee shall infeoffe I.S. this is a breach of the condition for quando aliquid prohibetur fieri ex directo prohibetur per obliquum Fo. 223. b. 10 H. 7. 11. D. St. 124. 13 H. 7. 23. In ancient Deeds c. there was commonly a clause Quod licitum sit donatoriâ— rem datam dare vel vendere cui voluerit except viris Religiosis et Judais Brac. l. 1. fo 13. a. Sect. 362. A double Neg. in legall construction shall not hinder the Neg. 33 Ass 11. 21 H. 7. 11. Vide S. 220. If a man make a Lease for years or for life upon condition that they shall not grant over their estate or let the Land to others this is good and yet the grant or Lease should be lawfull 21 H. 6. 33. 31 H. 8. Dy. 45. 27 H. 8. 17 19. Quilibet potest renunciare juri pro se introducto Dy. 33 H. 8. fo 48 49. lib. 6. 40 41. Sir Ant. Mildmayes case Note that to estate tail c. there be divers incidents 1. To be dispunished of waste 2. That the wife of the donee in tail shall be endowed 3. The Husband c. shall be Tenant by the Curtesie 4. That Tenant in tail may suffer a common recovery and therefore if a man make a gift in tail upon condition to restrein him of any of these incidents the condition is repugnant and void in Law 22 E. 3 19. 17 El. 343. Dy. And note that a collaterall warranty or a lineall with Assets in respect of the recompence is not restrained by the Statute of Donis Cond no more is the Common recovery in respect of the intended recompence 13 H. 7. 24. b. If a man make a feoffment to a Baron and feme
part fo 70. 71. If there be Grandfather Father and Son and the 〈◊〉 disseise the Grandfather and make a Feoffment in fee the Grandfather dyeth the Father against his own Feoffment shall not enter but if he dye his Son shall enter And so note a diversity between a Release a Feoffment and a Warrant A release in that case is void a Feoffment is good against the Feoffor but not against his heir a Warrant is good both against himself and his heirs 39. H 6. 43 21. E 4. 81. 9 H 7. 1. b 2 E 3. 38 1â— H 4. 33. Note three diversities 1. Between a Power and an Authority 〈◊〉 a Right 2. Between Powers and Authorities themselves 3. Between a Right and a possibility 43 E 3. 17. 42 E 3. 24. per Finchden 17 E 3. 67. As to the 1. If a man by his will deviseth that his executors shall sell his land and dieth if the executors release all their right and title to the heir this is voidâ— for they have but onely a bare Authority And so it is if cestuâ— que use had devised that his Feoffees should have sold the land albeit they had made a Feoffment over yet might they sell the Vse for their Authority in that case it not given away by the liverâ— 1 H 7. 11. As to the second there is a diversity between such Powers and Authorities as are onely 〈◊〉 the use of a stranger and nothing for the benefit or him that made the Release as in the case before and a Power or Authority which respecteth the benefit of the Releasor as in these usual powers of revocation when the Feoffor c. hath a power to alter change determine or revoke the uses being intended for his benefit he may release and where the estates before were defeasible he may by his release make them absolute and seclude himself from any alteration or revocation l. 1. Albanâ—â—s case 10. H 6. 4. As to the third before Iudgement the Plaintiff in an action of debt releaseth to the Bail in the Kings Bench all Demands and after Iudgement is given this shall not baâ— the Plaintiff to have execution against the Bail because at the time of the release be had but a meer possibility and neither Ius in re nor Ius ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute c. release to the Conusor all his right in the land yet afterwards he may sue execution for he hath no right in the land till Execution but onely a possibility 25 Ass p. 7. 27 E 3. Execut. 130. P. 38. El. Rot. 521. Borough and Grey Sect. 447. En Releases de tout le droit que home ad en cert ' terres c. il covient a celuy a que le release est fait en asc ' case que il ad le franktenement en les terres en fait ou en ley al temps de release sait c. This must be intended of a bare right and not of a release of right whereby any estate passeth as to a lessee for years 49 E 3. 2â— Also it must be intended of a right of Freehold at the least and not to a right to any term for years or Chattels real as if lessee for years be ousted and he in the reversion disseised and the disseisor maketh a lease for years the first lessee may release unto him all which is implyed in the first c. Also in some case a Release of a right made to one that hath neither Freehold in deed nor in Law is good as the Demandant may release to the Vouchee and yet the Vouchee hath nothing in the Land for that when the Vouchee enters into the Warranty he becomes Tenant to the Demandant and may render the land to him in respect of the privity but an estranger cannot release to the Vouchee because in rei veritate he is not Tenant of the Land 7 E 4. 13. 20 H 6. 29. 5 H 7. 41. 18 E 3. 12. 8 H 4. 5. vide Sect. 490 491. And so it is if the Tenant alien hanging the Praecipe the Release of the Demandant to the Tenant to the Praecipe is good and yet he hath nothing in the land 20 E 4. 14. 12. Ass p. 41. In time of vacation an Annuity that the parson ought to pay may be released to the Patron in respect of the privity but a release to the Ordinary onely seemeth not good because the Annuity is Temporal 8 E 3 81. 46 E 3 6. b 21 H 7 41. If a disseisor make a lease for life the disseisee may release to him for to such a release of a bare right there needs no privity But if the disseisor make a lease for years the disseisee cannot releaâ— to him because he hath no estate of free hold And yet in some case a right of Freehold shall drown in a Chattle as if a feme hath a right oâ— Dower shee may release to the Guardian in Chivalry and her right of Freehold shall drown because the Writ of Dower doth lie against him and the heir shall take advantage by it And note That by a Maxime a right of entry or a chose in action cannot be granted or transferred to a stranger Mirr cap. 2 S 17. If a man be disseised of an acre of land the disseisee hath jus proprietatis the disseisor hath jus possessionis and if the disseisee release to the disseisor he hath jus proprietatis possessionis Reg. When a naked right to land is released to one that hath jus possessionis and the other by a mean title recovers the land from him the right of possession shall draw the naked right with it For example if the heir of the disseisor being in by discent A. doth disseise him the disseisee release to A. now hath A. the meer right to the land but if the heir of the disseisor enter into the land and regain the possession that shall draw with it the meer right c. Br. l 2. f. 32. Brittfâ— 8â— 121. But if the Donee in Tail discontinue in fee now is the reversion of the Donor turned to a naked right if the Donor release to the discontinuee and dye and the issue in Tail recover the land c. he shall leave the reversion in the discontinuee for the issue in Tail can recover but the estate Tail onely and the Donor cannot have it against his release but if the disseisee enter upon the heir of the disseisor and infeoff A in fee the heir of the disseisor recover the whole estate that shall draw with it the meet right and leave nothing in the Feoffee Another diversity is observable when the naked right is precedent before the accquisition of the defeasible estate for there the re-continuance of the defeasible estate shall not draw with it the preceding right As
5. 15. H. 7. 13. b. 5. E. 4. 7. a. The surest construction of a Statute is by the rule and reason of the Common Law Uses were at the Common Law When the Law gives to any man any estate or possession the Law giveth also a privity and other necessaries to the same Since Littleton wrote the said Statute of 2. H. 5 is altered for where that Statute limited 40. s. now a later Statute hath raised it to 4. l. and so it ought to be contained in the Ven. fac 27. El. cap. 6. Nota. An use is a trust or confidence reposed in some other which is not issuing out of the land but as a thing collaterall annexed in privity to the estate of the land and to the person touching the land viz. that Cesty que Use shall take the profit and that the Terre-tenant shall make an estate according to his direction So as Cesty que Use had neither jus in re nor jus ad rem but onely a confidence and trust for which he had no remedy by the Common Law but for breach of trust his remedy was only by Subpoena in Chancery Fortescue cap. 25 26 c. Pl. Com. 352. b. in Dalameres case 349. b. l. 1. fo 121 122 127 140. â—hudleys case l. 2. fo 58 78 l. 6 fo 64. l. 7. fo 13 34. Vide Fortescue ut ante c. How Jurors shall be returned c. Sect. 65. Fol. 273. a. It is a certain rule That when a Release doth enure by way of inlarging of an estate that there must be privity of estate as between lessor and lessee donor and donee Fleta l. 5. cap. 34. 15. H. 7. 14. 22. E. 4 4. But a Release to him that in rei veritate albeit there be privity in Law and a tenancy in supposition of Law hath no estate cannot enure to him by way of inlargement for how can his estate be inlarged that hath not any Vide Libr. If a Tenant by the Curtesie grant over his estate yet he is Tenant as to an action of Wâ—ste Attornment c. and yet a Release to him and his heirs cannot enure to inlarge his estate that hath no estate at all If I grant the reversion of my Tenant for life to another for life now shall not he have an action of Waste But if I release to the grantee for life and his heirs now he hath the Fee simple and shall punish the Waste done after 48. E. 3. 16. a. per Persay and Finchden 41. E. 3. 17. a. 7 E. 4. 17. It is further to be observed that to a release which enureth by way of inlargement of the estate there is not only required privity and an estate but sufficient words also in Law to raise or create a new estate If a man make a lease to A. for term of the life of B. and after release to A. all this right in the Land by this A. hath an estate for term of his own life for a lease for term of his life is higher in Judgement of Law then an estate for term of another mans life vide 16. H. 6. Release 45. 22. E. 2. Rel. Statham Nota when a Release doth enure by way of enlargement of an estate no inheritance either in fee simple or fee tail can passe without apt words of inheritance But there is a diversity between a Release that enureth by way of Mitter lestate and by way of enlargement of the state 9. El. Dyer 263. If there be three joyntenants and one release to one of the other all his right this enureth by way of Mitter lestate and passeth the whole fee simple without these words Heirs But if there be two joyntenants the one release of them all his right to the other this doth not to all purposes enure by way of Mitter lestate for it maketh no degree and he to whom the release is made shall for many purposes be adjudged in from the first Feoffor and this release shall vest all in the other joyntenant without these words Heirs 40. E. 3. 41. 46 E. 3. 19 H 6. 33 H. 6. 5. 10 E. 4. 3. But if there be two Coparcerners and the one release all his right to the other this shall enure by way of Mitter testate and shall make a degree and without these words Heirs shall pass the whole fee simple And note that to a release that enures by way of Mitter lestate there must be privity of estate at the time of the Release 37 H. 8. Alienat Br. 31. 8 H. 4. 8. 40 Ass 5. 19. If two Coparcerners be of a rent and the one of them take the Terre tenant to husband the other may release to her notwithstanding the rent be in suspence and it shall enure by way of Mitter lestate and she may release also to the Terre-tenant and that shall enure by way of extinguishment But if she release to her sister and to her husband it is good to be seen how it shall enure * Nota some releases do enure by way of enlargement of estate some by way of Mitter lestate some by way of Mitter le droit by way of Entry and Feoffment and some by Extinguishment vide Littl. fo 68 69. Sect. 467. Fol 274. a. Reg. he that hath a fee simple at the time of the Release made of a right c. needeth not speak of his heirs for a release of a right for a day is sufficient c. But if a man be disseised of two acres he may release his right in one of them and yet enter into the other vide 6 E. 3. 17. alias 6. E. 3. 17. 12. E. 3. discent F. 29. So note a diversity between a release of part of the estate of a right and a release of a right in part of the Land Again note two diversities 1. Between the quantity of the estate in a right and the quality thereof for albeit the disseisee cannot release part of the estate yet may he release his right upon condition 4. E. 2. Release 50. 43. Ass 12. 17. Ass 2. 31. Ass Ass 13 21. H. 24. 2. Diversity is between a right which is favoured in Law and a condition created by the party which is odious in Law for that it desceateth estates and therefore if a condition be released upon condition the release is good and the condition void fo 274. b. An express Manumission of a Villain cannot be upon condition for once free in that case and over free Also an Attornment to a grantee upon condition the condition is void because the grant is once setled But this is to be understood of a condition subsequent and not of a condition precedent for in both cases the condition precedent is good But Letters Patents of Denization made to an alien may be either upon condition subsequent or precedent and so may the King make a Charter of Pardon to a man of his life upon condition as is abovesaid
Rot. Parliament 18. H. 6. 11. 29. Ap Guilliams case 10. E. 3. c. 2. 3. H. 7. f. 6. Sect. 469. Lou home ad forsque droit a la terre nad riens in le reversion ne in le remainder in fait si tiel home release tout son droit a un que est tenant de le franktenement tout son droit ale comment que nul mention soit fait de les heires celuy a que le release est fait To a release of a right made to any that hath an estate of Freehold in Deed or in Law no privity at all is requisite Lessee for life letteth the same land over to another for term of the life of his lessee the remainder to another in fee A release in this case by the first lessor to the lessee doth not enure by way of Mitter le droit for then should he have the whole right but as it were by way of extinguishment in respect of him that made the release and that it shall enure to him in the remainder which is a quality of an inheritance extinguished but yet the right is not extinct in deed Sect. 471. Fol. 275. b. If a disseisor make a lease for life the remainder in fee albeit they to some purposes are as one Tenant in Law yet if the disseisee release all actions to the Tenant for life he in the remainder shall not take benefit of this release for it extendeth only to Tenant for life l. 8 fo 148. Edw. Althams Case Also if the disseisor make a lease for life and the disseisee release all actions to the lessee this enureth not to him in the reversion And so our Author is to be understood of a release of Rights and not of a release of actions to the Tenant for life as to or for the benefit of him in the remainder or reversion Sect. 472. Fol. 276. a. If Tenant for life be disseised by two and he release to one of them this shall enure to them both for he to whom the release is made hath a longer estate then he that releaseth and therefore cannot enure to him alone to hold out his Companion for then should the release enure by way of Entry and grant of his estate and consequently the disseisor to whom the release is made should become Tenant for life and the reversion revested in the lessor which strange transmutation of estates in this case the Law will not suffer 13. E. 4. Discent F. 29. But if lessee for years be ousted and he in the reversion disseised and the lessee release to the disseisor the disseisee may enter for the term of years is extinct and determined And so it is if Donee in Tail be disseised by two c. But if the Kings Tenant for life be disseised by two and he release to one of them he shall hold out his companion for the disseisor gained but the estate for life So if two joynt-tenants make a lease for life and after to disseise the Tenant for life and he release to one of them he shall hold out his companion for the disseisin was but of an estate for life If Tenant for life be disseised by two and he in the reversion and Tenant for life joyn in a release to one of the disseisors he shall hold out his companion and yet it cannot enure by way of entry and Feoffment But if they severally release their severall Rights it shall enure to both the disseisors But here in Littletons Case where Tenant in fee simple is disseised by two and release to one of them this for many purposes enures by way of entry and Feoffment and therefore he to whom the release is made shall hold out his companion and be made sole Tenant of the fee simple Mes fi un disseisor infeffa 2 c. auterment est For that the Feoffees are in by Title and are presumed to have a Warranty which is much favoured in Law and the disseisors are meerly in by wrong 21 H. 6. 41. If two men do gain an Advowson by usurpation and the right Patron release to one of them it shall enure to them both for seeing their Clerk come in by admission and institution which are judiciall acts they are not meerly in by wrong for an usurpation shall cause a Remitter F. N. B. 31. M. But if a lease for life be made the remainder for life the remainder in fee and he in remainder for life disseise the Tenant for life and then the Tenant for life dieth the disseisin is purged and he in remainder for life hath but an estate for life And so note a diversity where the particular estate for life is precedent and when subsequent 19. H 6. 21. 38. H. 6. 28. Case de Occup Where our Author putteth his case of one disseised put the case that two joyntenants in fee be disseised by two and one of the disseisees release to one of the disseisors all his right he shall not hold out his companion because the release is but of the moity without any certainty If a man be disseised by two women and one of them take husband and the disseisee release to the husband this shall enure to the advantage of both the disseisors because the husband was no wrong doer but in a manner by Title If two disseisors be and they make a Lease for life and the disseisee release to one of them this shall enure to them both and to the benefit of the lessee for life also for he cannot by the release have the sole possession and estate for part of the estate is in another And so it is if the disseisors make a lease for years c. But the mortgage upon condition having broken the condition is disseised by two the mortgager having Title of entry for the condition broken releases to the one disseisor albeit they be in by wrong yet the release shall enure to them for two causes 1. For that they are not wrong doers to the Mortgager but to the Mortgagee and by Littletons case it appeareth that wrong is done to him that made the Release 2. That he that makes the Release hath but a Title by force of a condition and Littletons case is of a right Like Law is of an entry for Mortmain or a consent to Ravishment c. Sect. 473. Note that a release by one whose entry is lawfull to him that is in by wrong shall purge and take away all mean estates and titles If A. disseise B. who infeoff C. with warranty who infeoff D. with warranty and E. disseise D. to whom B. releases this doth defeat all the mean estates and warranty causa qua suprae 11. H. 4. 33. 9. H. 7. 25. 2. E. 4. 16. 21. E. 4. 78. 12. Ass 22. vide 3. H. 6. 38. Sect. 474. Fol. 276. b. If the disseisor make a lease for life and the lessee make a feoffment in fee and the disseisee release to
the Feoffee this release shall take away the entry of the disseisor for the alienation which was made to his disinheritance he having the inheritance by disseisin so as he could have no warranty annexed to it and Tenant for life forfeited his estate But if the entry of the disseisee were not lawfull it is otherwise as the Book of 9. H. 7. 25. is of an estate Tail mutatis mutandis Vide l. fo 277. a. Sect. 475. Abate Vide N.B. 115. Brit. cap. 51. Bract. l. 4. cap. 2. Abatamentum is an entry by interposition A Disseisin is a wrongfull putting out of him that is actually seised of a Freehold and Abatement is when a man died seised of an estate of Inheritance and between the death and entry of the heir an estranger doth interpose himself and abate Intrusion 1. properly is when the Ancestor died seised of any estate of inheritance expectant upon an estate for life and then Tenant for life dieth c. and an estranger doth interpose himself and intrude 2. He that enters upon any of the Kings demesns and taketh the profits is said to intrude upon the Kings Possessions F.N.B. 203. Fleta l. 4. cap. 30. Pl. Com. case de Mynes 3. When the heir in ward enters at his full age without satisfaction for his marriage the writ saith quod intrusit F.N. B. 141. F. Deforciamentum comprehendeth not only these aforenamed but any man that holdeth Land whereunto another man hath right be it by discent or purchase is said to be a deforcer Usurpation hath two significations in the common Law one when an estranger that no right hath presenteth to a Church and his Clark is admitted and instituted 2. When any subject doth use without lawful warrant Royall franchises he is good to usurp c. Purprestura est c. generaliter quories aliquid sit ad nocumentum regii tenementi vel regiae viae vel aliquarum publicar vel civitatis c. Glanv l. 9. ca. 11. Brit. fo 28. 29. And because it is properly when there is a house builded or an inclosure made of any part of the Kings demesne or of an high way or a common street or publike water or such publike things it is derived of the French word Pourpris which signifieth an inclosure but specially applyed as is aforesaid by the common Law Sic nota differentiam inter disseisinam Abatamentum Intrusionem deforciamentum usurpationem purpresturam Sect. 476. Fo. â—77 b. But if the Feoffee upon condition make a Feoffment in fee over without any condition and the disseisee release to the second Feoffee the condition is destroyed by the release before the condition broken or after for the state of the second Feoffee was not upon any express condition as Littleton here putteth his case and he may have advantage of the release because it is not against his own proper acceptance as Littleton speaketh in the next Section L. 1. fo 147. Mayowes case But if it be a wrongfull title such a title is taken away by a release As if A. disseised B. to the use of C.B. release to A. this shall take away the agreement of C. to the disseisin because it should make him a wrong doer as if the disseisor be disseised the disseisee release to the second disseisee this taketh away the right of the first disseisor had against the second and a relation of an estate gained by wrong shall never defeat an estate subsequent gained by right against a single opinion not affirmed by any other in our books 14. H. 8. 11. per Portm Si disseisee release al Feoffee sur condition ceo namendre lestate le Feoffee c. Sect. 477. Fo. 478. a. Home navera advantage per un release que serre enconter son proper acceptance encounter son grant dem compt que asc ' ont dit que lou enier de hâ—me est congeable sur un tenant sil release a mes le tenant que ceo availoit a le tenant sicom il ust enter sur le tenant puis luy infeoffa c. ceo neâ— pas voier en chesc ' cas Car si le disseisee ust enter sur le Feoffee sur condition puis luy infeoffa donques est le condition tout defeat mes il ne pas void per asc ' tiel release sant entry fait c. If A. and B. be joynt disseisors and B. grant a rent charge and the disseisee release to A. all his right A. shall avoid the rent charge because it was not granted by him and so not within the reason of our authour If two disseisors be and they infeoffee another and take back an estate for life or in fee albeit they remain disseisors to the disseisee as to have an Ass against them yet if he release to one of them he shall not hold our his companion because their state in the land is in by Feoffment If there be two disseisors and they be disseised and they release to their disseisor and after disseise him and then the disseisee release to one or both of them yet the second disseisor shall reenter for they shall not hold the land against their own release If a disseisee release to one of the disseisors to some purpose this shall enure by way of entry and Feoffment viz. as to hold out his companion But as to a rent Charge granted by him it shall not enure by way of entry and Feoffment for if the disseisee had entred and enfeoffed him the rent charge had been avoided But it is a certain rule that when the entry of a man is congeable and he release to one that is in by title as here to the Feoffee upon condition is it shall never enure by way of entry and Feoffment either to avoid a condition with which he accepted the land charged or his own grant or to hold out his companion And where it appeareth by our authour that acts done by the disseisor shall not be avoided by the release of the disseisee It is to be noted that acts made to the disseisor himself shall not be avoided by the alteration of his estate by the release of the disseisee as if the Lord before the release had confirmed the estate of the disseisor to hold by lesser services the disseisor shall take advantage of it and so of estovers to be burnt in the house and the like Law is of a warrantty made unto him If an alien be a disseisor and obtain letters of denization and then the disseisee release unto him the King shall not have the land for the release hath altered the estate and it is as it were a new purchase otherwise it is if the alien had been the Feoffee of a disseisor Fo. 278. b. If the Lord disseise the Tenant and is disseised the disseisee release to the second disseisor yet the Seignory is not revived for between the parties the release enures by way
Carta autem de confirmatione est illa quae alterius factum consolidat confirmat nihil novi attribuit quandoque tamen confirmat addit Flet. l. 3. ca. 14. En asc ' case un fait de confirmation est bon available lou en tiel case un fait de release nes pas bon c. Car release ne pas available mes lou est un privity c. And note that where a confirmation shall enlarge an estate there privity is required as well as in the case of the Release 9 H. 6. 22. Release 44. Littleton in this Chapter putteth eight diversities betweene a confirmation and release And in this Chapter is also to be observed eight cases wherein a release and confirmation have the like opperation in Law Vid. Sect. 516 c. fo 296. a. If the disseisor make a Lease for years to begin at Michaelmos and the disseisee confirme his estate this is void because hee hath but interesse termini and no estate in him whereupon a confirmation may enure 4 H. 7. 10. by read 22. E. 4. 39. Sect. 519. c. Fo. 296. b. Si le desseisee confirme lestate le disseisor a aver tentant a luy pur terme de sa vie enc'le disseisor ad fee simple c. pur ceo que quant son estate fuit confime donque il avoit fee tiel fait ne pâ—it change son estate sans enter fait sur luy c. alia ratio quia confirmare idem est quod firmum facere 19 H. 6. 22. 6 E. 3. confirmation 4. Sect. 520. Fo. 297. a. Nota a diversity betweene a bare assent without any right or interest and an assent coupled with a right or interest and therefore an attonement cannot be made for a time nor upon condition but if the person make a Lease for a 100 years the Patron and ordinary may confirme 50 of the yeares for they have an interest and may charge in time of vacation Lib. 5. fo 81. Fordes case If tenant for life make a lease for a 100 yeares the lessor may confirme either for part of the terme or for part of the land But an estate of freehold cannot be confirmed for part of the estate for that the estate is intire and not severall as years be Sect. 521. Fo. 207. b. If the disseisor make a gift in taile the remainder for life the remainder to the right heires of tenant in taile this extendeth only to the estate taile c. If the disseisor infeoffe A and B and the heires of B if the disseisee confirme the estate of B for his life this shall not onely extend to his companion but to his whole fee simple because to many purposes he had the whole fee simple in him and the confirmation shall be taken most strong against him that made it If a feme disseiseresse make a feoffment in fee to the use of A for life and after to the use of her selfe in taile and the remainder to the use of B in fee and then taketh husband the disseisee and he release to A. all his right this shall enure to B. and to his own wife also for by the rule of Littleton it must enure to all in the remainder But A. lets Land to B. for life and B. maketh a Lease to C. for his life the remainder to A. in fee if A. release to C. all his right this is good to perfect the estate of C. for his life But when C. dyeth A. shall be in of his old estate c. and note that in these two cases the fee is devested and vested all at one instant c. Vide fo 297. b. Pur ceo que le remainder est dependant c. by this some have gathered that if a disseisor make a Lease for life reserving the reversion to himselfe and the disseisee confirme the estate of the disseisor that he may enter upon the lessee because the estate of him in the reversion dependeth not upon the estate for life as the remainder but all is one for by the confirmation made to him in the reversion all the right of him that confirmeth is gone as well as when he maketh it to him in remainder and he cannot by his entry avoid the estate of the lessee for life but he must avoid the estate of the lessor which against his own confirmation he cannot doe and it hath been adjudged that if a disseisor make a Lease for life and after levy a fine of the reversion with proclamations and the five years passe so as the disseisee is for the reversion barred he shall not enter upon the Lessee for life Reported by Sir Jo. Popham chief Justice Where the particular estate and the remainder depend upon one title there the defeating of the particular estate is a defeating of the remainder But where the particular estate is defeasible and the remainder by good title there though the particular estate be defeated the remainder is good As if the lessor disseise A. lessee for life and make a Lease to B. for the life of A. the remainder to C. in fee albeit A. reenter and defeate the estate for life yet the remainder to C. being once vested by good title shall not be avoided for it were against reason that the lessor should have the remainder againe against his own livery So it is if a lease be made to an Infant for life the remainder in fee the Infant at his ful age disagree to the estate for life yet the remainder is good Pl. Com. Colthirsts Case fo 298. a. If a lease be made to A. for the life of B. the remainder to C. in fee A. dyeth before an Occupant enter here is a remainder without a particular estate and yet the remainder continueth 17 E. 3. 48. A rent is granted to the Tenant of the land for life the remainder in fee this is a good remainder albeit the particular estate continued not for coinstante that he tooke the particular estate eo instante the remainder vested and the suspension in Judgement of Law grew after the taking of the particular estate 3 E. 3. Abb. Ass If a man grant a rent to B. for the life of Alice the remainder to the heirs of the body of Alice this is a good remainder and yet it must vest upon an instant 7. H. 4. 6. Sect. 522 523 524. Fol. 298. 2. A Release is more forcible in Law then a Confirmation if the disseisee and a stranger disseise the heir of the disseisor and the disseisee confirm the estate of his companion this shall not extinguish his right that was suspended So as if the heir of the disseisor re-enter the right of the disseisee is revived And so it is if the grantee of a rent charge and a stranger disseise the Tenant of the Land and the grantee confirm the estate of his companion the Tenant of the land re-enter the rent is received for
the Confirmation extendeth not to the rent suspended otherwise it is of a release in both cases Est bone sure chose en chesc ' confirmation d'aver ceux parolls a aver tener les tenements c. en fee ou en fee tail ou pur terme de vie ou pur terme dans solonque eo que le case est c. Note the diversity between a Confirmation of the estate for life in the land to have and to hold the said state in the land to him and his heirs this cannot enlarge his estate for his estate being but for life cannot be extended to his heirs But in that case if he confirme the state for life in the land in the premises of the Deed and the habendum is to have and to hold the land to him and his heirs this shall create in him a fee simple 18 E. 3. 40. Sect. 525. If a man letteth land to the husband and wife to have and to hold the one moity to the husband for terme of his life and the other moity to the wife for her life and the lessor confirm the estate of them both in the land to have and to hold to them and to their heirs by this Confirmation as to the moity of the husband it enureth only to the husband and his heirs for the wife had nothing in that moity but as to the moity of the wife they are joyntenants for the husband hath such an estate in his wifes moity in her right as is capable of a Confirmation But if such a lease for life be made to two men by several moities and the lessor confirm their estates in the land to have and to hold to them and to their heirs they are Tenants in Common of the Inheritance for reg the Confirmation shall enure according to the quality and nature of the estate which it doth enlarge and encrease 18 Ass p. 3. 18 E. 3. Confirmation 17. fol. 299. b. If a lease for life be made to A. the remainder to B. for life and the lessor confirm c. A. taketh one moity to him and his heirs and therefore of the one moity he is seised for life the remainder to B. for life and then to him and his heirs of the other moity A. â—is seised for life the immediate inheritance to B. and his heirs because as to the moity which B. takes the same is executed 39 H. 6. 9 If lands be given to two men and to the heirs of their two bodies begotten and the Donor confirm their two estates in the land to have and to hold the land to them two and to their heirs in this case some are of opinion that they shall be joyntenants of the fee simple because the Donees were jointenants for life and the Confirmation must enure according to the estate which they have in possession and that was joynt But others hold the contrary For 1. They say that the Donees have to some purposes severall inheritances executed though between the Donees survivor shall hold for their lives 2. They say that when the whole estate which comprehended severall inheritances is confirmed the Confirmation must enure according to the severall inheritances which is the greater and most perdurable estate and therefore that the Donees shall be Tenants in Common of the inheritance in this case Albeit in this case of Littleton the husband by the Confirmation gaineth an estate for life in remainder yet if the husband doth waste an action of Waste shall lie against him and his wife notwithstanding the mean remainder because the husband himself committeth the wast and doth the wrong 17 E. 3. 68. b. Sir Edward Caries Case lib. 5. fo 76. b. Sect. 526 527. Fol. 300. a. Note a diversity between a lease for life and a lease for years made to a feme covert for her estate of Freehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Chattels reals as leases for years Wardships c. are not given to the husband absolutely as all Chattels personals are by the intermarriage but conditionally if the husband happen to survive her and he hath power to alien them at his pleasure but in the mean time the husband is possessed of the Chattels reall in her right 5 E 3. 17. b. Pl. Com. 418. b. 24. H. 4. 12. Pl. Com. Dame Hales Case 50 Ass p. 15. 4 H. 6. 5. 7 H. 6. 1. 21 H. 7. 29. 21 E. 4. 40. 26 H. 8. 7. Such a thing as I may defeat by my Entry I may make good by my Confirmation 11 H 7. 28. 3 H 4. 10. If the feoffee upon condition grant a rent charge en fee and the feoffor confirm it and after the Condition is broken and the feoffor enter he shall not avoid the rent charge And so it is if the heir of the diffeisor grant a rent charge and the disseisee confirmeth it and after recover the Land he shall not avoid the rent And yet in neither of these cases his entry was congeable at the time of the Confirmation Lib. 1. fo 147. c. Anne Mayowes case Sect. 528. Fol. 300. b. Persona is said to be seised in jure Ecclesiae and the Law had an excellent end herein viz. that in his person the Church might sue for and defend her right and also be sued by any that had an elder and better right and when the Church is full it is said to be plena consulta of such a one person thereof that may vicem seu personam gerere ejusdem Ecclesiae Brit. fol. 234. b. F.N. 48. A. Parson of D. is Patron of the Church of S. as belonging to his Church and presents B. who by consent of A. and of the Ordinary grant a rent charge out of the Gleab this is not good to make the rent charge perpetuall without the assent of the Patron of A. no more then the assent of the Bishop who is Patron without the Dean or Chapter or no more then the assent of the Patron being Tenant in Tail or for life as Littleton saith And Littleton here saith that the Patron that confirms must have a fee simple meaning to make the charge perpetuall And Littleton after saith that in the case of the Parson the fee is in abeiance and seeing the consent of the Patron is in respect of his interest as heir it appeareth by Littleton he may consent upon Condition otherwise it is of an attornment because it is a bare assent Also if the state of the Patron be conditionall and he confirmeth and after the Condition is broken his Confirmation is void Lib. 2. 39 24 l. 1. 153 l. 4 23 24. l. 5. 31. 81. l. 10. 6. l. 11. 19. l. 6. 34. Note a diversity between a sole Corporation as Parson Prebend Vicar c. that have not the absolute fee in them for to their grants
attorn saving his Acquitall and the Plaintiffe acknowledge it and thereupon Tenant attorn Tenant for life dyeth in this case albeit Reg. the Attornment to the Tenant for life is an Attornment to him in remainder yet in this case he in the remainder shall not distrain till he hath acknowledged the Acquitall which must be in a per que servit brought by him against the Tenant vide S. 557. Sect. 583. Fol. 321. a. Note a diversity between an act in Law that giveth one inheritance in lieu of another and an act in Law that conveyeth the estate of the Conusee only Of the former Littleton here putteth an Example of the escheat of the Mesnaâ—ty which drowneth the Seigniory Paramount and therefore reason would that the Lord by this act in Law should have as much benefit of the Mesnalty escheated as he had of the Seigniory that was drowned and he hath no remedy to compell the Tenant to Attornment Also the Lord cometh to the Mesnalty by a Seigniory Paramount and therefore needeth no Attornment As if lessee for life be of a Manor and he surrender his estate to the lessor there needs no Attornment of the Tenants because the lessor is in by a Title Paramount Temps E. 2. Attor 18. 39. H. 38. per Prifot lib. 6. f. 68. Sir M. Finches Case 5 H. 7. 18. per Cur. But if the Conusee dye and the Law casteth his Seigniory upon his heir by Discent he shall not be in any better estate then his ancestor was because he claimeth as heir meerly by the Conusee Sect. 584. Fol. 321. b. vide c. If a man make a lease for life or years and after levy a Fine to A. to the use of B. and his heirs B shall distrain and have an action of Waste albeit the Conusee never had any Attornment because the reversion is vested in him by force of the Statute and hath no remedy to compell the lessee to attorn 27 H. 8. c. 10. Sect. 585. 586. Fol. 322. a.b. Here doth Littleton put a case where a man may have a Seignory rent reversion or remainder meerly by the act of the party and may distrain and have any action without any Attornment and that is by devise of Lands deviseable by Custom when Littleton wrote by the last Will aad Testament of the owner 34 H. 6. 6. 5 H. 7. 18 F N B. 121. n. Omne Testamentum morte consummatum ultima voluntas testatoris est perimplenda secundum veraÌ„ intentionem suam reipublicae interest suprema hominum testamenta rata haberi The Will of the Devisor expressed by his Testament shall be performed according to the intent of the Devisor and it shall not lie in the power of the Tenant or lessee to frustrate the Will of the Devisor by denying his Attornment vide S. 167. Brit. fol. 78. 212. b. Sect. 587 588 589. Fol. 323. a b The disseisor cannot disseise the Lord of the Rents or Services without the Attornment of the Tenants to the disseisor for seeing an Attornment is requisite to a feoffment and other lawfull Conveyances A fortiori a disseisor or other wrong doer shall not gain them without Attornment The like Law is of an Abator and an Intrudor But albeit the disseisor hath once gotten the Attornment of the Tenants and payment of their rents yet may they refuse afterwards for the avoiding of their charge And here the Attornment of the Tenant of a Manor to a disseisor of the Demesns shall dispossess the Lord of the rents and services parcell of the Manor because Demesns Rents Services make but one intire Manor and the Demesns are the principall but otherwise it is of rents and services in gross 6 H. 7. 14. 11 H. 7. 28. 11 H. 4. 14. a.b. For a man cannot be disseised of a rent service in gross rent charge or rent seck by Attornment or payment of the rent to a stranger but at his election for the Rule of Law is Nemo redditum alterius invito Domino percipere aut possidere potest vide S. 237 238 239 240. What be disseisins of rent services rent charge and rent secks and payment to a stranger is none of them but at the Lords election 24 E. 3. 4. 1 E 5. 5. A discent of a rent in gross bindeth not the right owner but that he may distrain albeit he admitted himself out of possession and determined his election as by bringing of an Assize c. 5 E. 4. 1. 23 H. 30. Ass 439. 16 Ass p. 15. *** CHAP. XI Of Discontinuance Sect. 592. Fol. 325. a. DIscontinuare nihil aliud significat quà m intermittere desuescere interrumpere 8 H. 4. 8. b. 11 H. 4. 85. b. A discontinuance of estates in Lands or Tenements is properly in legall understanding an alienation made or suffered by Tenant in Taile or by any that is seised in auter debit whereby the issue in Tail or the heir or successor or those in reversion or remainder are driven to their action and cannot enter I have added properly by good warrant of our Author himself for Sect. 470. he useth Discontinuance for a devesting or displacing of a reversion though the entry be not taken away Also vide the Stature of 1 E. 6. c. 7. 31. Eliz. c. 2. lib. 7. fo 30 31. le case de Discontin de processe When Littleton wrote the estate in Lands and Tenemens might have been discontinued five maner of ways viz. By Feoffment by Fine by Release with Warranty Confirmation with Warranty and by suffering of a Recovery of a Praecipe quod red and this was to the prejudice of five maner of persons viz. of Wives of Heirs of Successors of those in Reversion and of those in Remainder But for Wives and their Heirs and for Successors the Law is altered by Acts of Parliament since Littleton wrote Sect. 593. Fol. 325. b. Nota that in Law the Covent albeit they be Regular and dead persons in Law yet are they said in Law to be Capitulum to the Abbot as well as the Dean and Chapter that be Secular to the Bishop But it is to be observed That a sole Body Politick that hath the absolute right in them as an Abbot Bishop c. may make a discontinuance but a Corporation aggregate of many as Dean and Chapter Warden and Chaplains c. cannot make any discent for if any joyn the grant is good and if the Dean Warden c. make it alone where the Body is aggregate of many it is void and worketh a disseisin 21 E. 4. 86. vide Sect. 528 648. By the Statute of 1 Eliz. c. 10. 1 Iac. c. 3. Bishops and all other Ecclesiasticall persons are disabled to alien or discontinue any of their Ecclesiasticall Livings Sect. 594. Fo. 326. a. By the pur vieu of the Statute of 32 H. 8. c. 28. the wife and her heirs after the decease of her husband may enter into the Lands and Tenements of the
Land and makes a feoffment in fee with warranty and dyeth this is no disccontinuance of the rent 3 H. 7. 12. 9 E. 4. 22. And where the thing doth ly in livere as Lands and Tenements yet if to the conveyance of the freehold or inheritance no livery of seisin is requisite it worketh no discontinuance As if Tenant in Taile exchange Lands c. or if the King being Tenant in Taile grant by his Letters Patents the Lands in fee there is no discontinuance wrought 38 H. 8. Pat. Br. 10. 1. Pl Com 233. l. 1. f. 26. Altwoods case Of a thing that lyeth in grant though it be granted by Fine yet it is no discontinuance and this is Regularly true 48 E. 3. 23. If Tenant in taile make a Lease for years of Lands and after levy a Fine this is a discontinuance for a Fine is Feoffment of Record and the freehold passeth 15 E. 4. discontinuance 30. But if Tenant in taile make a Lease for his owne life and after levy a Fine this is no discontinuance because the reversion expectant upon a Statute of freehold which lyeth only in grant passeth thereby 6 H. 8. 56 57. Sect. 620. Si Tenant in tail fait Lease a Terme de vie le lesee c. apres tenant in taile grant per son fait le reverson in fee a un auter le tenant a terme de vie attornment mor. vivant le Tenant in taile le grantee del reversion enter c. en la vie le Tenant in taile donque ceo est un discontinuance en fee. For when the revetsion in this case executed in the life of Tenant in taile it is equivalent in judgement of Law to a Feoffment in Fee for the state for life passed by livery 32 E. 3. discontinuance 2. 3 H. 4. 9. 34. Ass 6. p. 4. 38. Ass 6. p. 6. But if the Tenant in taile make a Lease for Terme of the life of the Lessee c. and grant over the reversion and dyeth and after the death of Tenant in taile the Lessee dye the entry of the issue is lawfull because by the death of the Lessee the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also If Tenant in taile make a Lease for life the remainder in fee this is an absolute discontinuance albeit the remainder be not executed in the life of Tenant in taile because all is one estate and passeth by livery and so note a diversity between a grant of a reversion and a limitation of a remainder 21 H. 6. 52 53. B. Tenant in Tail makes a gift in Tail to A. and after B. releases to A. and his heirs and after A. dyeth without issue the issue of the first Donee may enter upon the collateral heir because A. had not seisin and execucion upon the reversion of the land in the demesn as of fee. But if Tenant in Tail make a lease for the life of the lessee and after release to him and his heirs this is an absolute discontinuance because the fee simple is executed in the life of Tenant in Tail If Tenant in Tail of a Manor whereunto an Advowson is appendant make a feoffment in fee by Deed of one acre with the Advowson and the Church becommeth void and the feoffee present Tenant in Tayl dyeth the Church becometh void the issue shall not present untill he hath reconcontinued the acre But if the feoffee had not executed the same by Presentment then the issue in Tail should have presented And so was it at the Common Law of the husband seised in the right of his wife Mutatis mutandis 34 E. 1. Qu. imp 179. 22 E. 3. 6. 17 E. 3. 3. 33 E. 3. qu. imp 196. 23 Ass 8. If the husband and wife make a lease for life by Deed of the wives land reserving a rent the husband dyeth this was a Discontinuance at the Common Law for life and yet the reversion was not discontinued but remained in the wife otherwise it is as if the husband had made the lease alone 38 E. 3. 32. 18. Ass 2. 18 E. 3. 54. 22 H. 6. 24. If Tenant in Tail make a lease for life of the lessee and after grant the reversion with Warranty and dyeth before execution this is no discontinuance because the discontinuance was but for life and the Warranty cannot enlarge the same Bro. Discontinuance 3. 21 H. 7. 11. l. 1. fo 85. l. 10. fo 96 97. If Tenant in Tail make a Lease for life and grant the reversion in fee and the lessee attorn and that grantee grant it over and the lessee attorn and then the lessee for life dyeth so as the reversion is executed in the life of Tenant in Tail yet this is no Discontinuance because he is not in of the grant of the Tenant in Tail but of his grantee 15 E. 4. Discont 30. Vide Sect. 642. fol. 333 b. If Tenant in Tail make a lease for life and after disseiseth the lessee for life and maketh a feoffment in fee the lessee dyeth and then Tenant in Tail dyeth albeit the fee be executed yet for that the fee was not executed by lawful means it is no Discontinuance Sect. 625. Fol. 335. a. Littleton here putteth his case of a reversion immediately expectant upon the gift in Tail Also it is to be intended of a feoffment made to the donor solely or only for if the donee infeoff the donor and a stranger this is a Discontinuance of the whole land 41 Ass 2. 41 E. 3. 2. 28 H 8. Dyer 12. lib. 1. fo 140. in Chudleys case 9 E. 4. 24. b. But if Tenant for life make a lease for his own life to the lessor the remainder to the lessor and estranger in fee in this case forasmuch as the limitation of the fee should work the wrong it enureth to the lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger Nul poit discont ' lestate en taile si non que il discont ' le reversion c. ou le remainder c. 40 Ass 36. 61 Ass 36. 18 E. 3. 45. F N B. 142 a. Pl. Com. 555. And therefore if the reversion or remainder be in the King the Tenant in Tail cannot discontinue the estate Tail But Tenant in Tail the reversion in the King might have barred the estate Tail by a Common recovery untill the Stature of 33 H. 18. cap. 20. which restraineth such a Tenant in Tail but that Common Recovery never barred nor discontinued the Kings reversion 33 H 8. Tail Br. 41. If a feme covert be Tenant for life and the husband make a Feoffment in fee and the lessor enter for the forfeiture here is the reversion revested and yet the Discontinuance remained at the Common Law 27 Ass p. 60. 29 Ass 43. 11 Ass 11. 16. Ass 11 18 E. 3. 45. Sect. 632. Fol. 336. b. Si
performing of the condition c. and yet the lessor himself was never bound to the warranty but it hath relation from the first livery and by this it appeareth that a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may work in the beginning But otherwise it is if a man grant a Seigniory for yeares upon condition to have fee with warranty in forma praedicta c. And so it is if a man make a Lease for yeares the remainder in fee and warrant the Land in forma predicta he in the remainder cannot take benefit of the Warranty because he is not party to the Deed and immediately he cannot take she were party to the Deed because he is named after the â—abendum and the estate for yeares is not capable of a warranty And so it is if Land be given to A. and B. so long as they â—oyntly together live the remainder to the right heires of â—â—m that dieth first and warrant the land in forma predicta A. dyeth his heir shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heir of A. have the Land by discent Sest 722. Fol. 378. b. Si le 1. fits alienast c. By the Alienation of the Donee two things are wrought 1. The Franktenement and Fee is in the Alienee 2. The reversion is devested out of the donor and therefore by the alienation that transferreth the freehold and fee simple to the Alienee there can no remainder be raised and vested in the second sonne 27 H. 8. 24. 6. R. 2. quod jur clam 23. Also an estate of an inheritance in Lands and Tenements cannot cease or be void before the state be defeated by entry then if this remainder should be good then must it give an entry upon the Alienee to him that had no right before which should be against the expresse rule of Law viz. That an estate cannot be given to a stranger to avoid a voidable Act. One Alienation cannot vest an estate of one and the same Land to two severall persons at one time If a man seised of an Advowson in fee by his deed grant the next presentation to A. and before the Church become void by another Deed grant the next presentation of the same Church to B. the second grant is void for A. had the same granted to him before and the grantee shall not have the second avoidance by construction to have the next avoidance which the grantor might lawfully grant for the grant of the next avoidance doth not import the second presentation But if a man seised of an Advowson in fee take wife now by Act in Law is the wife intitled to the third presentation if the husband dye before The husband grants the third presentation to another the husband dye the heire shall present twice the wife shall have the third presentation and the grantee the fourth for in this case it shall be taken the third Presentation which he might lawfully grant and so note a diversity between a Title by act in Law and by act of the party for the act in Law shall work no prejudice to the grantee Periculosum est res novas inusit at as inducere Eventus varios res nova semper habet vide §. 87 c. Sect. 723. fol. 379. a. Here by the Opinion of Littleton the Donor may re-enter for the condition broken for Vtile per inutile non vitiatur which being in case of a condition for the defeating of an estate is worthy of Observation And it is to be noted That after the death of the Donor the condition descendeth to the eldest Sonne and consequently his alienation doth extinguish the same for ever wherein the weaknesse of this invention appeareth and therefore Littleton here saith That it seemeth that the Donor may re-enter and speaketh nothing of his heirs A man hath issue two Sons and maketh a gift in Tail to the eldest the remainder in fee to the puisne upon condition that the eldest shall not make any discontinuance with warranty to barre him in the remainder and if he doth that then the puisne Son and his heirs shall re-enter the eldest maketh a feoffment in fee with warranty the Father dyeth the eldest Son dyeth without issue the puisne may enter But if the discontinuance had been after the death of the Father the puisne could not have entred In this case four points are to be observed 1. As Littleton here saith the entry for the breach of the Condition is given to the Father and not to the puisne Sonne 2. That by the death of the Father the condition descends to the elder Sonne and is but suspended and is revived by the death of the eldest Son without issue and descendeth to the yongest Son 41 E. 3. vide Sect. 446. 3. That the feoffment made in the life of the Father cannot give away a condition that is collaterall as it may doe a right 4. That a Warranty cannot binde a Title of entry for a condition broken but if the discontinuance had been made after the death of the Father it had extinguisht the condition which case is put to open the reason of our Authors opinion The ancient Judges and Sages of the Law have ever as it appeareth in our Books suppressed innovations and novelties in the beginning as soon as they have offered to creep up lest the quiet of the Common-wealth might be disturbed 31 Ed. 3. Gager delivery 5. 22 Ass 12. 38 Ed. 3. 1. 2 H. 4. 18 c. And so have Acts of Parliament done the like 1 Ed. 3. cap. 15. Stat. 3. 18 Ed. 3. cap. 1. 6. 4 Hen 4. cap. 2. 11 Hen. 6. cap. 23. 12 Ed. 4. cap. 8 c. Sect. 726. fol. 380. a. Here note this diversity If the heir be within age at the time of the discent of the Warranty he may enter and avoid the estate either within age or at any time after his full age 18 Ed. 4. 13. 35 Hen. 6. 63. 28 Ass 28. 32 Ed. 3. garr 30. and Littleton saith well That the Infant in this case may enter upon the Alienee for if he bring his action against him he shall be barred by this Warranty so long as the state whereunto the Warranty is annexed continues and be not defeated by entry of the heir but if he be within age at the time of the alienation with Warranty and become of full age before the discent of the Warranty the Warranty shall barre him for ever Our Author putteth his cases where the entry of the Infant is lawfull for where it is not lawfull when the Warranty descendeth the Warranty doth binde the Infant as well as a man of full age and the reason is because the state whereunto the Warranty was annexed continueth and cannot be avoided but by action in which action
years c. in this case if he be ousted by a stranger without being impleaded the Obligation is forfeit But if he be bound to warrant the land c. the bond is not forfeit unlesse the Obligee is impleaded and then the Obligor must be ready to warrant c. 2 E. 4. 15. tit Det. 71. Qui benè distinguit benè docet fol 384. a. A Warranty in Deed is created onely by this word Warrantizo but Warranties in Law are created by many other words they are therefore called Warranties in Law because in Judgement of Law they amount to a Warranty without this Verb Warrantizo As Dedi is a Warranty in Law to the feoffee and his heirs during the life of the feoffor but Concessi in a Feoffment or Fine implieth no Warranty But before the Statute of Quia Emp. ter if a man had given lands by this word Dedi to have and to hold to him and his heires of the Donor and his heirs by certain Services then not onely the Donor but his heirs also had been bound to warrant But if before the Statute a man had given lands by this word Dedi to a man and his heirs for ever to hold of the chief Lord there the feoffor had not been bound to Warranty but during his life as at this day he is Lestat de Bigamis c. 6. 2 H. 7. 7. 6 H. 7. 2. 48 E. 3. 2. 31 E. 1. vouch 290. F. N.B 134. b. 6 E. 2. vouch 258. Dedi doth import a warranty in Law albeit there be an expresse warranty in the Deed. For if a man make a feoffment by Dedi and in the Deed doth warrant the land against I. S. and his heirs yet Dedi is a generall warranty during the life of the feoffor and so was the Statute expounded in both points H. 14. El. in Com. Banc. And if a man make a lease for life reserving a rent and adde an expresse warranty here the expresse warranty doth not take away the warranty in Law for he hath election to vouch by force of either of them and in Nokes Case note a diversity between a warranty that is a Covenant and a warranty concerning a Chattell l. 4. fo 80. 8 E. 3. 69. 3 E. 3. Formedon 44. Also this word axcambium doth imply a warranty Also a Petition implyeth a warranty in Law and homage Aunc ' doth draw to it selfe warranty 4 E. 2. vouch 245. 22 E. 3. 3. 14 H. 6 2. 20 H. 6. 14. l. 4. 122. l. 1. 96. l. 5. fo 17. l. 8. 75. Seignior Staf. case And note that the warranty wrought by this word dedi is a speciall warranty and extends to the heirs of the Feoffee during the life of the donor only But upon the exchange Homage Aunc ' the warrant extending reciprocally to the heires and against the heires of both parties and in none of these cases the Assignee shall vouch by force of any of these warranties but in the case of the exchange and dedi the Assignee shall rebutt but not in the case of Homage Auncestrel And so no man shall have a writ of contra formam collationis but onely of the feoffee and his heirs which be privy to the Deed but an Assignee may rebutt by force of the Deed. 28 Ass 33. 14 H. 4. 5. 11 E. 3. Avowr 100. 30 H. 6. 7. 33 H. 8. Dy. 51. 10 H. 7. 11 b. F. N. B. 163. a. If a man make a gift in Taile or a Lease for life of land by deed or without deed reserving a rent or of a rent service by deed this is a warranty in Law and the donee or lessee being impleaded shall vouch and recover in value and this warranty extendeth not onely against the donor or lessor and his heires but also against his Assignees of the reversion and so likewise the Assignee of lessee for life shall take benefit of this warranty in Law 6 E. 2. vouch 105. 5 E. 3. 67. 3 H. 7. 13. 6 H. 7. 2. 7 E. 3. 6. F.N.B. 134. g. When dower is assigned there is a warranty in Law included that the Tenant in Dower being impleaded shall vouch and recover in value a third part of two parts whereof she is Dowable 4 E. 3. 36. 43. Ass 32. 50 E. 3. 7. F.N.B. 149. m. A warranty in Law and Assets is in some cases a good barre In a Formedon in the discender the Tenant may plead that the Ancestor of the demandant exchanged the Land with the Tenant for other Lands taken in exchange which descended to the demandant whereunto he hath entred and agreed or if he hath not entered and agreed unto the Lands taken in exchange then the Tenant may plead the warranty in Law and other Assets descended 14 H. 6. 2. 15 E. 3. Bar. 255. If Tenant in Taile of Lands make a gift in Taile or a Lease for life render a rent and dyeth and the issue bring a Formedon in the discending the Reversion and rent shall not barre the demandant because by his Formedon he is to defeat the reversion and rent Et non potest adduci exceptio ejusdem rei cujus petitur dissolutio 38 E. 3. 22. 23. 24. 13 E. 3. gar 35. But if other Assets in fee simple doe discend then this waâ—ranty in Law and Assets is a good barre in the Formedon 16 E. 3. Age 45. 31 E. 3. gar 29. Here four things are to be observed 1. That no warranty in Law doth barre any collaterall title but is in nature of a lineall warranty wherein note the equity of the Law Fo. 384. b. 2. That an expresse warranty shall never binde the heirs of him that made the warranty unlesse they be named but in case of warranty in Law in many cases the heires shall be bound to warranty albeit they be not named 3. That in some cases warranties in Law do extend to execution in value of speciall Lands and not generally of Lands descended in fee simple lib. 4. fol. 121. Bustards Case 4. That warranty in Law may be in some cases created without Deed as upon gifts in Taile Leases for life eschanges and the life 45 E. 3. 20. b. Also it is necessary to shew who shall take advantage of a warranty as Assignee by way of voucher to have recompence in value If a man infeoffee A. and B. to have and to hold to them and their heires and Assignes with a clause of warranty praedictis A. and B. eorum haered Assignatis in this case if A. dyeth and B. surviveth and dyeth and the heire of B. infeoffeth C. he shall vouch as Assignee and yet he is but the Assignee of the heir of one of them for in judgment of Law the Assignee of the heire is the Assignee of the Ancestor and so the Assigne of the Assignee shall vouch in infinitum within these words his Assignes 14 E. 3. gar 33. 13 E. 1. gar 83. lib. 5. fol. 17. b. Spencers case 38 E. 3. 21.
by Littleton himselfe is to the contrary and that both the party and as some doe hold his Assignee shall vouch but he that is vouched in that case must be present in Court and ready to enter into the warranty and to answer and the Tenant must shew forth the Deed of Release or Confirmation with warranty to the intent the Demandant may have an answer thereunto and either deny the Deed or avoid it for that at the time of the Confirmation made he to whom it was made had nothing in the land c. for otherwise the Demandant may counter-plead the Voucher by the Statute of W. 1 cap. 40. viz. that neither Vouchee nor any of his Ancestors had any seisin whereof he might make a feoffment And this is grounded upon the said Statute of W. 1. Sil neit son gar en present que lun voile gar de son gree maintenant enter en respons otherwise the Tenant must be driven to Warrantia Cartae 11 H. 4. 22. 10 E. 3. 52. 21 E. 3. 37. Vide Sect. 706. 738. 745. Vide 20 E. 1. Stat. ad vocat ad Warr. But a warranty of it selfe cannot enlarge an estate as if the lessor by Deed release to his lessee for life and warrant the land to the lessee and his heirs yet doth not this enlarge the estate 22 Hen. 6. 15. 2 Hen. 4. 13. 43 Ed. 3. 17. 43 Ass 42. 12 Ass 17. 12 Ed. 3. Tail 3. 22 Ed. 4. 16. b. 44 Ed. 3. 10. 44 Ass Bassingborns Ass If a man make a feoffment in fee with Warranty to him his heirs and assigns by Deed as it must be and the feoffee infeoff another by paroll the second feoffee shall vouch or have a Warrantia Cartae as Assignee albeit he hath no Deed of the Assignment l. 3. 63. If a man infeoff two their heirs and assigns and one of them make a feoffment in fee that feoffee shall not vouch as Assignee 29 Edw. 3. 70. 17 Edw. 2. Joynd in action 1. 11 Edw. 4. 8. If a man make a feoffment in fee to A. his heirs and assigns A. infeoffeth B. in fee who re-infeoffâ—th A. He or his assigns shall never vouch for A. cannot be his own Assignee But if B. had infeoffed the heir of A. he may vouch as Assignee for the heir of A. may be Assignee to A. in as much as he claimeth not as heir Sect. 734. fol. 386. a. The Heir shall never be bound by any expresse warranty but where the Ancestor was bound by the same warranty 31 Ed. 1. gar 83. Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita regis tantum A fortiori in case of Warranty which is in the realty Fleta lib. 2. cap. 55. Brit. fol. 65. b. 11 Hen. 6. 48. But a Warranty in Law may binde the Heir although it never bound the Ancestor and may be created by a last Will and Testament As if a man devise lands to A. for life or in Tail reserving a rent the devisee for life or in Tail shall take advantage of this warranty in Law albeit the Ancestor was not bound and shall binde his heirs also to Warranty although they be not named Also an expresse Warranty cannot be created without Deed and a Will in writing is no Deed and therefore an expresse Warranty cannot be created by Will 18 Ed. 3. 8. Sect. 736. fol. 386. b. Note a diversity the lien reall as the Warranty doth ever descend to the heir at the Common Law but the lien personall doth binde the speciall heirs as all the heirs in Gavelkinde and the heir on the part of the Mother vide Sect. 603 718 737. 11 E. 3. 7. 11 Hen. 7. 12. If two men make a feoffment in fee with warranty and the one dyeth the feoffee cannot vouch the survivor onely but the heir of him that is dead also but otherwise if two joyntly binde themselves in an Obligation and the one die the survivor only shall be charged 17 E. 3. Joynt 41. 16 H. 7. 13. 29 E. 3. 46. 12 H. 7. 3. 22 E. 3. 1. 17 E. 3. 8. 30 E. 3. 43. 19 H. 6. 55. l. 3. f. 14. Mat. Herberts Case Two brothers by demy venters the eldest releaseth with warranty to the disseisor of the Uncle and dyeth without issue the Uncle dyeth the warranty is removed and the younger brother may enter into the Land Sect. 737. Sect. 738. fol. 387. A warranty may be limited and a man may warrant lands as well for term of life or in Tail as in fee 38 Ed. 3. 14. 16 E. 3. Vouch. 87. If Tenant in fee simple that hath a warranty for life either by an expresse Warranty or by Dedi be impleaded and vouch he shall recover a fee simple in value albeit his warranty were but for term for life because the warranty extended in that case to the whole estate of the feoffee in fee simple but in the case that Littleton here putteth the Tenant for life shall recover in value but an estate for life because the warranty doth extend to that estate onely vide Sect. 733. 706. And here in this Section is implyed that a collaterall Warranty giveth no right but shall barre onely for life and after the party is restored to his action Also note that a Warranty may descend to the heirs of him that made it during the life of another Sect. 739. Si un home lessa ses terres a un aut aver tenant a luy a ses heires pur terme dauter vie le lessee mor. vivant oâ—luy a que vie c. un estranger enter en la terre l'heire le lessee luy poit ouster c. The heir of the lessee shall have the Land to prevent an occupant and so it is in case of an annuity or of any other thing that lieth in grant whereof there can be no occupant 77 E. 3. 48. 18 E. 3. 12. 11 H. 4. 42. 7 H. 4. 46. 8 H. 4 15. Dyer 8 Eliz. 253. 18 H. 8. 3. 27 H. 8. 21 H. 8. Estat Br. 10. 19 E. 3. Account 56. 33 Ass p. 17. 22 H. 6. 33. 39 E. 3. 37. vide Sect. 387. Sect. 740. Chattels as well reall as personall shall goe to the Executor or Administrator 11 E. 3. tit Ass 88. 11. Ass 21. 10 Eliz. Dyer 276. But if the Kings Tenant by Knights service in Capite be seised of a Manour whereunto an Advowson is appendant and the Church become void the Tenant dyeth and his heir within age the King shall present to the Church and not the Executor or Administrator but if the Land be holden of a common person in that case the Executor shall present and not the Guardian 24 E. 3. 26. F.N.B. 33. b. 34. a. If a Bishop hath a Ward fallen and dyeth the King shall not have the Ward nor
PRVDENS QVI PATIENS Juris prudentium eloquentissimus et Eloquentium Juris prudentissimus AN ABRIDGEMENT OF The Lord COKE'S COMMENTARY on LITTLETON Collected by an unknown Author yet by a late Edition pretended to be Sir Humphrey Davenports Kt. AND In this Second Impression purged from very many gross ERRORS committed in the said former Edition With a TABLE of the most remarkable things therein LONDON Printed for W. Lee D. Pakeman and G. Bedell 1651. To the READER Courteous Reader THis little Book was lately sent abroad with many grosse Errours as an Abridgement of the Lord Cokes Comment on Littleton under the Name of Sr Humphrey Davenport Kt long since deceased though indeed many very materiall things in the Lord Cokes Comment is not in the late Edition or Abridgement at all hinted or mentioned If thou art curious to understand the Law bee pleased to consult the large Volume which is an exact learned Work and curiously corrected and approved by all learned in the Common Laws but if thy leasure for the present will not permit thee to read that learned Work at large know that thou mayest for Twelve-pence have this Compendium and be welcome to the carefull Publishers hereof who desire thy benefit and the publike good W. Lee. D. Pakeman G. Bedell From our Shops in Fleetstreet Nov. 24. 1651. Munday The true portraiture of Iudg Littleton the famous English Lawyer CAP. I. De Feodo Simplici FEodum simplex idem est quod haereditas legitima vel pura Tenant in fee simp 1. He hath the estate in the land 2. He holdeth the land of some superior Lord. 3. He is to perform the services due and 4. Hee is thereunto bounden 5. By Doom and judgement Praedium domini regis est directum dominium cujus nullus Author est nisi Deus Subjectus habet utile dominium Bract. l. 1. c. 8 Fee ex feif i praedium beneficiarum Fee divided into 3 parts viz. simple or absolute conditional qualified or base Bract. 263. 207. Pl. Com. Walsing c. Di. 252 253. Fee signifies that the land belongs to us and our heirs and in this sense the King is said to be seised in fee. It is also taken as it is holden of another by service and that only belongeth to the subject Brit. 205. 207. Item dicitur feodum alio modo ejus qui alium feoffat quod quis tenet ab alio ut sit qui dicat talis tenet de me tot feoda per servitium militare and Fleta saith poterit unus tenere in feodo quoad servitia sicut dominus Capitalis non in dominico alius in feodo dominico non in servitio sicut libere tenens alicujus and therefore if a stranger claim a Seigniory and distrain and a vow for the service the Tenant may plead that the Tenancy is extra feodum c. Of him that is out of the surrendry or not holden of him that claimeth it but he cannot plead hors de son fee unlesse he take the Tenancy that is the State of the land upon him 2 Ass p. 4. 12 Ass 38. 12 E. 3. tit hors de son fee 28. i. b. ignoratis terminis ignoratur ars Si un annuitie soit grant al home à ses heirs ceo est fee simple personal Simplex idem est quod purum purum dicitur quod est merum solum sine additione Simplex donatio pura est ubi nulla addita est conditio sive modus simplex enim datur quod nullo additamento datur every fee is not legitimate for a disseisor abator intruder usurper c. hath a fee but not a lawful fee fo 2. a. Si un alien purchase treÌ„s c. Le roy sur office trove eux aura home attaint de felony and capacity de purchaser sinon pur le benefit del roy Dier 283. An Alien Merchant whose King is in league with ours may take a lease for years of a hous for habitation as incident to commercery and as necessary to his trade and tratfique but not for the benefit of his Executors or Administrators for if he die possessed of the lease or relinquish the Realm the King shall have it 5 Mar Br. tit-denizen 22. If a man commit felony and after purchase lands and is attaint the Lord of the fee shall have the Escheat 49 Ass p 2. 49 E. 3. 11. If any sole corporation or aggregate of many religiosus vel alius ecclesiastical or temporal purchase Lands in fee without licence they cannot retain for if the mesn Lords make default and do not enter c. the King shall have the Lands c. 7 E. 1. De Relig. per alienation in Mortmain les Seignors perdont lour escheats and in effect the service de chivaler per defence del royalm ward marriage relief c. Et pur ceo fut dit mortmain quod rend nul service Stat. delig 7 E. 1. per quod quae servitia ex hujusmodi feodis debentur quae ad defensionem regni ob initio provisa fuerunt indebite subtrahuntur capitales domini eschaet suas ammittunt M. Ch. c. 36. Praelatus ecclesiae suae conditionem meliorare potest deteriorare nequit Est enim eccle ejusdem conditionis quae fungitur vice minoris Sed nullum simile quatuor pedibus currit 2. b. Brac. l. 2. f. 12. 32 Si feme covert purchase Lands c. Le baron poit disagreer devest tout lestate but albeit her husband agreed thereunto after his death she may wave the same and so may her heires also if she her selfe agreed not c. After the decease of her husband The Queen is an exempt person by the common law from the King and may purchase and grant c. Vxor is a good name of purchase without a Christen name and so it is if a Christen name be added and mistaken Vâ—ile enim per inutile non vitidtur 1. H. 5. 8. Purchases are good in many cases by a known name or by a certain description of the person without either surname or name of Baptisme as uxor I S or primogenite filio I.S. or rect hered I. S. But regularly in writs the demandant or plaintiff is to be named by his Christen name surname unlesse it be the case of some corporations or bodis politique 3. a. 8. E 3. 437. qui ex damnato coitu nascuntur inter liberos non computentur Bastardus est quasi nullius filius A man makes a Lease for life to B. the remainder to the eldest issue male to be begotten of the body of Jane S. whether the same issue be legitimate or illegitimate B. hath issue a bastard on the body of I. S. this Son or issue shall not take the remainder because in Law he is not his issue M. 38. 39. el. in bre de err A Bastard may purchase by his reputed name to him and his heires
although he can have no heire but of his body 39. E. 3. 11. 24. 17. E. 3. 42. 35. As 13. 41. E. 3. 19 An office which concernes the benefit or safety of the commonwealth c. granted to a man which is unexpert and hath no skill or science to exercise or execute the same the grant is merely void and the party disabled by law to take the same pro commodo regis populi Dier 150. An infant or minor is not capable of an office of Stewardship of the Court of a Mannor either in possession or reversion No man though neven so skilful c. Is capable of a judiciall office in reversion but must expect untill it fall in Possession l. 11. 2. Sect. 378. The King is capable of an office not to use but to grant A purchase is c. when one cometh to lands by conveiance or title and not by tort as by disseisin c. Note that purchasers of lands tenants leases and hereditaments for good and valuable consideration shall avoid all former fraudulent and convin conveiance estates grants charges and limit of uses of or out of the same Stat. 27 El. cap. 4. 3. b. 13 El c. 5. l. 3. 80. Twines c. States of inheritances of lands are either certain or unmoveable whereof Littl. here speaketh or incertain and moveable as if partition be made between two Co-partners of one and the self same land that the one shall have it the first year and the other the second year alternis vicibus c. 4. 2. l. 1. 87. F. N. B. 62. Between pastura pascuum the legal difference is this that pastura in one signification containeth the ground it selfe called pasture and by that name is to be demanded Pascuum is wheresoever cattel are fed of what nature soever the ground is and cannot be demanded in a praecipe by that name 4. b. many things may pass by a name that by the same name cannot be demanded by a praecipe for that doth require a more perscript form but whatsoever may be demanded by a praecipe may pass by the same name by way of grant Ibid. 5. b. If the feoffor be bound to warranty and so to render in value then is the defence of the title at his peril and therefore the Feoffee in that case shall have no deeds that comprehend warranty whereof the Feoffor may take advantage Also he shall have such charters as may serve him to deraign the warranty paramount but other evidences which concern the possession and not the title of the land the Feoffee shall have them 6. a. l. 1. 1. 2. There have been eight formal or orderly parts of a deed of feoffment viz. 1. The premises 2. Habendum 3. Tenendum 4. Reddend 5. The clause of warrant 6. The in cujus rei testimonium sigillum c. 7. The date 8. The clause of his testibus The office of the premise of the deed is twofold 1. Rightly to name the feoffor and the feoffee and 2. to comprehend the certainty of the lands to be conveied c. Either by express words or which may by reference be reduced to a certainty for certum est quod cert reddi potest c. Vide libr. The Seal is of the essential part of the deed The date many times antiquity omitted for that the limitation of prescript or time of memory did often in processe of time change and the law was then holden that a deed bearing date before the limited time of prescript was not pleadable and therefore they made their deeds without date to the end they might alledge them within the time of prescription The date was commonly added in the Reign of Ed. 2. 3. 6. a. quae sunt minoris culpae sunt majoris infamiae Reg. he that loseth liberam legem becometh infamous and can be no witness As if a Champion in a writ of right become recreant or coward But oftentimes a man may be challenged to be of a Jury that cannot be challenged to be a witness and therefore though the witness be of the nearest alliance or kinred or of counsel or tenant or servant to either party or any other exception that maketh him not infamous or to want understanding or discretion or a party in interest though it be proved true shall not exclude the witness to be sworn 22 Ass 12. 41. If a witnesse be outlawed in a personal act hee cannot be joyned to the Jury but yet that is no exception against him to exclude him to be sworn as a witnesse to the Jury for that he with others should join in verdict with the Jury in affirmance of the deed the party should be barred of his attaint because there is more then twelve that affirm the verdict But note there must be more then one witnesse that shall be joyned to the enquest Inst 6. b. Max. Witnesses cannot testifie a negative but an affirmative when a trial is by witnesses the affirmative ought to be proved by two or three witnesses as to prove a summons of the Tenant or the challenge of a Juror c. But when the trial is by verdict of 12 men there judgement is not given upon witnesses c. but upon the verdict c. Probatio duplex viva sc per testes mortua par chartas c. presumptio triplex 1. Violenta 2. Probabilis 3. Levis seu temeraria Many time Juries together with other matters are much induced by presumptions In case of a Charter of feoffment if all the witnesses be dead c. Then violent presumption which stands for a proof is continual and quiet possession for ex diuturnitate temporis omnia praesumuntur solenniter esse acta Also the deed may receive credit per collationem sigillorum scripturae c. Glan l. 10. c. 12. A wife cannot be produced either against or for her husband quia sunt duae animae in carne una In some cases women are by law wholly excluded to bear testimony as to prove a man to be a Villain Mulieres ad probationem Status hominis admitti non debent Fleta l. 2. c. 44. In an information upon the statute of usury the party to the usurious contract shall not be admitted to bee a witnesse against the usurper for in effect he should be testis in propria causa and should avoid his own bonds c. Smiths case T. 8. J. in C.B. Brit. 134. He that challengeth a right in the thing in demand cannot be a witness for that he is a party in interest Britton fol. 134. 6. b. Tenementum is a large word not only to passe lands and other inheritances which are holden but also offices rents commons profits apprehender out of lands c. wherein a man hath any franktenement and whereof he is seised ut de libero tenemento But haereditamentum is the largest word of all in that kind for whatsoever may be inherited is an haereditamentum be it corporeal or
incorporeal real or personal or mixt 6. a. If a man by deed give lands to another and to his heirs without more saying this is good ut res magis valeat quam pereat if he put his seal to the deed deliver it and make livery accordingly So it is if A give lands to have and to hold to B and his heirs this is good by construction of the Law but when form and substance concur then is the deed fair and absolutely good fol. 7. a. In ancient charters c. there was never mention made of the delivery of the deed or any livery of seisin indorsed for the witnesses named in the deed were witnesses of both ib. Witnesses are very necessary for the better strengthning of deeds fol. 7. b. Haeres legitimus est quem nuptiae demonstrant and is he to whom Lands Tenemenrs and Hereditaments by the act of God right of bloud do descend of som estate of enheritance for Solus Deus facere potest haeredem non homo haeres ab haerendo nam qui haeres est haeret vel dicitur ab haerendo quia haereditas sibi haeret c. Vide libr. Partus cui natura aliquantulum ampliaverit vel diminuerit non tamen superabundanter bene debet inter liberos connumerari Si inutilia nostra reddidit ut si membra tortuosa habuerit non tamen is partus monstrosus Bract. l. 5. f. 437. A denizen by the Kings Letters Patents cannot be heir c. But otherwise is it if he be naturaliz'd by Act of Parliament and if one be made denizen the issue that he hath afterwards shall be heir to him An alien cannot he heir c. Propter de sectum subjectionis Fol. 8. a. Where the Sons by no possibility can be heir to the Father the one of them shall not be heir to the other as if an alien cometh into England and hath issue c. l. 7. Calvins Case A man attainted of Treason or Felony can be heir to no man nor any man heir to him propter delictum A man hath issue two sons and after is attaint c. And one of the sons purchase Lands and dieth without issue the other brother shall be his heir for the attainder c. corrupteth the lineal bloud only not the collateral bloud between the brethren which was vested in them before the attainder But if a man after he be attainted have issue c. Autrement est In case where filiatio non potest probari the child may choose his Father A man by the common law cannot be heir to Goods or Chattels for haeres dicitur ab haereditate Haeres astrarius so called ab astre i. e. an harth of an house cum Antecessor restituat haeredi in vita sua haereditatem c. fol. 8. b. Si uxor dicit se esse praegnantem de ipso defuncto cum non sit habeat haeres brevium de ventre inspic nemo est haeres viventis apparens dicitur If a man give land unto two haeredibus omitting suis they have but an estate for life for the uncertainty 10 H. 6. 7. Pl. Com. 28. b. Ceux parolx ses heirs tantsolement font lestate denheritance en touts Feoffments and grants Here Littleton treateth of purchases by natural persons and not of bodies politique or corporate As the heir doth inherit to the ancestor so the successor doth succeed to the predecessor and the executor to the Testat An ancient grant must be expounded as the law was taken at the time of the grant 17 E. 3. 25. b. Sub vocabulis haeredibus suis omnes haeredes propinqui comprehenduntur remoti nati nascituri fo 9 a. Fleta l. 3 c. 8. The law is precise in prescribing certain words to create an estate of inheritance for avoiding of uncertainty the mother of contention and confusion Pl. Com. 163. There bee many words so appropriated as that they cannot be legally expressed by any other words c. Some to estates of lands some to tenures some to persons some to offences some to forms of Originall Writs some to warrant c. Satus dicitur à stando An estate of inheritance granted by the great Seal c. is descendible according to the cours of the common law Hereditas est duplex Corporata viz. Of Lands and Tenements which may pass by Livery by Deed or without Deed. Incorporata as Advowsons Commons c. which cannot pass by livery but by Deed. The Deed of incorporaet inheritances doth equal the livery of corporeate al I. S. habend sibi succes sive haered suis ē fee s. Si. soit per Letters Patents A conveiance by feoffment cleareth all disseisins abatements intrusions and other wrongful or defeasible estates where the entry of the feoffor is lawful which neither fine recovery nor bargain and sale by deed indented and inrolled doth Sometime when an estate of freehold only doth pass improperly it is called a feoffment Done est nosme general plus que nest feoffment car done est general à touts choses moebles nient moebles Feoffment est riens forsque del soil If a man devise lands to a man in perpepetuum or to give and to sell c. A fee simple doth pass by the intent of the devisor Fol. 9. b. A man deviseth land to one sanguini suo that is a fee simple but if it be semini suo it is an estate tail Br. tit tail 21. So that ceux parolx ses heirs tantsolement c. Extend not 1. To last Wills and Testaments 2. Not to a fine sur conusans de droit come ceo c. 3. Nor to certain releases 4. Nor to a recovery 5. Nor to a creation of Nobility by Writ But out of This rule of our Author the Law doth make divers exceptions as 1 If the Son infeoff the Father as fully as the Father infeoffed him 2. In respect of the consideration as if lands be given in frankmarriage generally 3. If a feoffment or grant be made to any corporation aggregate of many persons capable 4. In case of a sole corporation as if a feoffment in fee be made to a Bishop habendum c. In libera elemosina 5. In grants sometimes as if one coparcenor for owelty of partition grant a rent to the other generally c. Ipsae etenim leges cupiunt ut jure regantur 6. By the Forrest Law if an Assart be granted by the King to another habendū tenend sibi in perpetuū he hath a fee simple without this word heirs fol. 10. a. And this rule c. extendeth to the passing of estates of inheritances in exchanges releases or confirmations that enure by way of enlargement of estates warranty bargains and sales by Deed indented and inrolled c. In which this word heirs is also necessary for they do taptamount to a Feoffment or grant ubi eadem ratio ibi idem jus A man may purchase lands to
3. 17. b. 41. As p. 10. l. 6. 26. These words secundum formam cartae are understood according to the quantity and quality of the effectuall estate contained in the Deed. 7. E. 4. 25. 29. Ass 40. If A. by Deed give land to B. to have and to hold after the death of A. to B. and his heires this is a void Deed because he cannot reserve to himself a particular estate and construction must be made upon the whole Deed c. Fo. 48. b. Vide c. M. 33. 34. El. B. R. Hog Xs. A livery in Law is when the Feoffor saith to the Feoffee being in view of the house or land I give you yonder Land to you and your heires and go enter c. and take possession thereof accordingly and the Feoffee doth accordingly in the life of the Feoffor enter this is a good Feoffment for signatio pro traditione habetur And livery within the view is good where there is no Deed of Feoffment 9. E. 4. 39. 38. E. 3. 11. And note a livery in law shall be perfected and executed by an entry in law 38. Ass p. 23. If a man be disseised and make a writing of a Lease for years and deliver the Deed and after deliver it upon the ground the second delivery is void for the first delivery made it a Deed and for that the Lease for years must take effect by the delivery of the Deed therefore the Deed delivered when he was out of possession was void But so it is not of a Charter of Feoffment for that takes effect by the livery and seisin But if the Lessor had delivered it as an escrowe to be delivered as his Deed upon the ground this had been good Vide libr. l. 3. 35. Jennings Brag. Of Freehold and inheritances some be corporeall as lands c. these are to passe by livery of seisin by Deed or without Deed some be incorporeall as Advowsons Rents Commons c. These cannot passe without Deed but without any livery Et est traditio de re corporali de una persona in personam de manu c. quia non possunt res incorporales possideri sed quasi ideo traditionem non patiuntur c. Bract. lib. 2. c. 18. In some cases a Freehold shall passe by the common law without livery of seisin as if a house or Land belong to an office by the grant of the office by Deed the house c. passeth as belonging thereunto Vide c. So if the house belong to a Corodie by the grant of the Cor. the house passeth 31. H. 6. 16. 8. H. 7. 4. Sect. 60. Lease est fait per ans le remainder ouster a un auter per vie en cest case livery de seisin est requisite ou auterment riens passa a celluy en remainder But livery cannot be made to the next in remainder because the possession belongs to the Lessee for years and for that the particular terme and all the remainders in law make but one estate and take effect at one time therefore the livery is to be made to the Lessee Remanere is a residue of an estate depending upon a particular estate and created together with the same A man being absent cannot take a Freehold by a livery but by his Attorney being lawfully authorized to receive livery by Deed unlesse the Feoffment be made by Deed and then livery to one Jointenant in name of both is good Fo. 49. b. If a man deliver a Deed without saying any thing it is a good delivery but to a livery of seisin of land words are necessary Vide c. A man makes a Lease for years to A. the remainder to B. in Fee and makes livery to A. within the view this livery is void for no man can take by force of a livery within view but he that taketh the freehold himselfe By the entry of the Lessee he is in actuall possession and then the livery cannot be made to him that is in possession for quod semel meum est amplius meum esse non potest Vide c. Affectio tua nomen imponit operi tuo Bract. lib. 1. But the dissoÌ„r infeoff the dissee and others albeit the disseisee came to take livery he is remitted to the whole Sect. 62. c. An exchange of Lands c. is good without livery of seisin And in case of a fine which is a Feoffment of Record of a devisor by a last will of a surrender of a Release or confirmation to a Lessee for years or at will In all these cases and some other a Freehold c. may passe without livery Fo. 50. a. In exchanges many things are to be observed First that the things exchanged need not to be in esse at the time of the exchange made I grant a rent newly created out of my Lands in exchange for the Mannor of D. this is a good exchange 2. There needeth no transmutation of possession and therefore a Release of a rent or estovers or right to Land in exchange for land is good 3. The things exchanged need not to be of one nature so they concerne Lands or Tenements As Land for rent or Common c. Vide c. Fo. 50. b. But annuities c. which charge the person onely cannot be exchanged c. Sect. 64 and 65. There be five things necessary to the perfection of an exchange 1. That the Estates given be equall viz. that there be equality of the quantity of the estate as if the one hath a Fee-simple c. the other shall have a like Estate c. But equality in value of Lands in an exchange is not requisite neither equality in the quality or manner of the estate 2. That this word excambium exchange be used which is so individually requisite as it cannot be supplied by any other word or described by any circumloquution 3. That there be an execution by entry or claime in the life of the parties 4. That if it be of things that lye in grant it must be by Deed. 5. If the Lâ—nds be in severall Counties there ought to be a Deed indented or if the thing lie in grant as an Advowson c. albeit they be in one County fol. 51. a. b. The agreement of the parties cannot make that good which the law maketh void Sect. 66. The interest of the terme doth passe and vest in the Lessee for yeers before entry and therefore the death of the Lessor cannot devest that which was vested before Infants Feme coverts persons attainted outlawed excommunicated villains aliens c. may be private Attorneys to deliver seisin fo 52. a. vide quaere The authority of an Attorney is twofold expressed in his Warrant and implyed in law both which he must pursue and if he do lesse it is voyd 12. Ass p 24. There is a diversitie between an Authority coupled with an interest and a bare Authority fo 52. b.
for an use is but a trust and confidence which by such a meane might be limited by the husband to the wife Omnia quae sunt uxoris sunt ipsius viri non habet uxor potestatem sui sed vir Bract. lib. 2. ca. 15. Vir uxor sunt quasi unica persona quia caro una sanguis unus res licet sit propria uxoris vir tamen ejus custos cum sit caput mulieris Bract. 5. tract 5. ca. 25. al. 2. Baron 10 H. 720. Extrix delcē que use poit vend terres devisi In contractibus benigna in testamentis benignior in restitutionibus benignissima interpretatio facienda est voluntas testatoris est ambulatoria usque ad mortem The first grant and the last will is of greatest force Cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est If a feme covert be seised of Lands in Fee she cannot devise the same to her husband because she is sub potestate viri c. Sect. 169. of 113. Item per tiel custome home poit deviser per sen testamentum que les executors point aliewr les tenements in Fee c. pur cert sum de mony a distribut pur son alme issint poies veir icy un case ou home poit faire loial estate encore il navoit riens en les tenements al temps del estate ft. quia consuetudo ex certa causa rationabili usitata privat communem legem Here it appeareth that the Executors having but a power as Littl. putteth the Case to sell they must all join in the sale Fo. 112. b. Vide c. Dyer 177. But if a man deviseth Lands to his executors to be sold and maketh two Executors and the one dieth yet the survivor may sell the Land because as the state so the Trust shall survive and so note a diversity between a bare trust and a trust coupled with an interest 39. Ass p. 17. Dyer 210. and 371. By the Statute of 21 H. 8. it is provided that where Lands are willed to be sold by Executors that though part of them refuse yet the residue may sell Lib. 1. 173. Mine advise to them that make such devise by will is to make it as certaine as they can as that the sale be made by his Executors or the survivors or survivor of them if his meaning be so or by such or so many of them as take upon them the probate of his will c. And it is better to give them an authority then an estate unlesse his meaning be they should take the profits of his Lands in the mean time and then it is necessary that he deviseth that the mean profits till the sale shall be assets in their hands for otherwise they shall not be so Vide lib. fo 113. Stat. 32. H. 8. c. 2. 34. H. 8. cap. 5. Consuetudo prescripta legitima vincet legem But no Custome or prescription can take away the force of an Act of Parliament Praescriptio est titulus ex usu tempore substantiam capiens ab autoritate legis A title taking his substance of use and time allowed by the Law 12 E. 4. 1. 2 M. Br. pr. 100. 6 E. 6. Dy. 31. 45. Ass 8. Sect. 170. I. S. Seised of the Manor of D. in Fee prescribeth thus that I.S. his ancestors and all those whose estate he hath in the said Manor have time out of mind of man had and used to have common of pasture c. in such a place c. Being the Land of some other c. as pertaining to the said Manor A Custome is in this manner A. Copyholder of the Manor of D. doth plead c. that all the Copyholders c. have had and used to have common of pasture c. in such a wast of the Lord parcell of the said Manor But both to customes and prescriptions these two things are incident inseparable viz. possession or usage and time Possession must have 3 qualities it must be long continuall and peaceable S. 170. Note 1. To what things a man may make a title by prescription without Charter and 2. How it may be lost by interruption For the first as to Franchises and liberties as cannot be seised as forfeited before the cause of forfeiture appear of Record no man can make a title by prescription c. as to the goods and Chattels of Felons c. to make a Coroner c. l. 5. 109. l. 9. 29. But to treasure trove waifes estraies c. to hold Pleas c. A man may make a title by usage onely c. Without any matter of Record Fo. 114. 6. 9 H. 7. 11. 20. And for the second it is to be known that the title being once gained by prescription or custome cannot be lost by the interruption of the possession for 10 or 20 yeares but by interruption in the right as if a man have had a rent or common by prescription unity of possession of as high and perdurable estate is an interruption in the right Vide c. Fo. 114. b. A Modus decimandi was alledged Mich. 42. and 44 Eliz. in banco Reg. by prescription time out of minde for tythes of Lambes and thereupon issue joined and the Jury found that before 20 years then last past there was such a prescription and that for this 20 years he had paid the Lambes in specie and it was objected first that the issue was found against the plaintiff for the prescription was generall for all the time of prescription and 20 years fail thereof 2. That the party by paiment of tythes in specie had waived the praescription or custome But it was adjudged for the plaintiffe in the prohibition for albeit the modus decim had not been paid by the space of 20 years yet the prescription being found the substance of the issue is found for the plaintiffe Vide Lib. c. M. 43. and 44 Eliz. B.R. Nowell and Hicks Note all the prescriptions that were limited from a certaine time were by Act of Parliament as from the time of H. 1. After that from the time of H. 2. By the Statute of Merton and from the time of R. 2. By the Statute of Westm 1. But the prescription of time out of memory of man was at the Common Law and limited no time Memory or knowledge is twofold First by knowledge by proof as by Record or sufficient matter of writing 2. by his own proper knowledge 28. Ass 25. 11 H. 7. 21. Dy. 273. There is a diversity between an Act of Parliament in the Negative and in the Affirmative for an Affirmative Act doth not take away a custome as the Statute of Wills of 32. and 34 H. 8. Do not take away a custom to devise Lands c. Also there is a diversity between Statutes that be in the Negative for if a Statute in the Negative be declarative of the Ancient Law that is in
gratum ingratum Fortescue cap. 46. fol. 137. b. There be some cases whâ—re the Villain shall be privileged from the seisure of the Lord c. 1. Ratione loci as if a Villain in the ancient Demesn of the King a year and a day without claim or seisure of the Lord the Lord cannot seise him c. so long as he remains and continues there 39 E. 3. 6. b. F.N. B. 79. a. 2. Ratione professionis as if he a Monk be c. Glaâ—v l. 5. cap. 5. 3. Ratione dignitatis if he be made a Knight c. Britt fo 79. 4. Ratione matrimonii as if a Neife marry a free-man she is priviledged during the marriage c. But if the Lord himself marry the Neife then she is infranchised for ever Mirr c. 3. sect 18. acc Doct. Sâ—u. 141. If a Niefe â—e regardant to a Manor and she taketh a free-man to husband by license of the Lord and the Lord make a feoffment in fee of the Manor the husband dyeth the feoffor shall have the Neife for that during the marriage she was severed from the Manor * and so is lib. 29. Ass which is falsely prinâ—ed to be understood If two Coparceners be of a Villain and one of them taketh him to husband she and her husband shall not have a Nuper obiit against her Coparcener but after the decease of her husband she shall 16 H. 3. Nuper ob 17. When the Lord enableth the Villain to have an action against him as for Debt or Annuity c. or if he sue against his Villain an Action of Debt or of Covenant c. or giveth to the Villain a certain and fixed estate in Lands c. as a lease for years by Deed or without Deed this is an infranchisement for ever But if the Lord atturn to his Villain c. or if he release all his right in black Acre and the Villain is not thereof seised this is no infranchiâ—ement because it is void and can give no cause of action fol. 138. a. 11 H. 7. 13. Sect. 208. The Tenant infeoffs the Villain of the Lord and a stranger * upon by Collusion in this case although the Lord may enter upon the Villain for the moity yet may he have a Writ of Ward against them both without infranchisement of the Villain for if the Lord should enter upon the Villain then should the seigniory be suspended and then could he not have a Writ of Ward against the other vide c. There is a Nonsure before appearance at the return of the Writ or after appearance at some day of continuance A Nonsute is ever upon a demand made when the Demandant or Plaintiff should appear and hee makes default A Retraxit is ever when the Demandant or Plaintiff is present in Court c. and this is either Privative as upon demand made that he depart in despight of the Court having made default c or Positive as when he saith that he will not prosecute his plea c. sed abinâ—e omnino se retraxit c. fol. 139. a. * Also a Retraxit is a bar of all other actions of like or inferior nature qui semel actionem renunciavit amplius repetere non potest But Reg. a Nonsute is not so but that he may commence an action of like nature c. again lib 8. fo 58. Bechers Case But yet for some speciall reasons Nonsute in some actions is peremptory as in a qu. imp if the Plaintiff be Nonsute after appearance the Defendant shall make a Title and have a Writ to the Bishop c. and the Incumbent that commeth in by that Writ shal never be removed 5 E. 3. 35. lib. 7. fo 27. b. Sir Hugh Portmans c. So it is in a Writ de Nativo habendo in favorem libertatis 6 E. 2. Vill. 26. F. N. B. 78. c. And in an appeal of Murther Rape Robbery c. in favorem vitae 9 H. 4. 1. Pl. Com. 148 a. 171. And in an appeal of Mayhem for the Writ saith Feloniâ—è Mayhemavit 43 Ass 39. And in Attaint and the reason is for the faith that the Law gives to the Verdict and for the fearfull Judgement that should be given against the first Jury if they should be convicted and therefore upon the Nonsute the Plaintiff shal be imprisoned and his pledges amerced but if the Process in an attaint be discontinued the Plaintiff may have another Writ of Attaint because upon the Nonsute there is a Judgement given but not upon the discontinuance F. N. B. 108. d. 32 Ass 13. Nonsuit before appearance is not peremtory in any case for that a stranger may purchase a Writ in the name of him that cause of action hath * In realor mixt actions the Nonsuit of one Demandant is not the Nonsuit of both but he that makes default shall be summoned and severed but Reg. in personal actions the Nonsuit of one is the Nonsuit of both unless it be in certain particular cases * F. N. B. 35. b. as in personall actions brought by Executors c. lib. * 6. fo 25. Ruddocks Case And in an Aud. quaer concerning the personalty * vide qu. lib. fo 139. a. In a quid Juris clamat the Nonsuit of the one is the Non-suit of both because the tenant cannot attorn according to the grant 20. E. 3. Severance 17. Some actions follow the nature of those actions whereupon they are grounded as the Writs of Error attaint Scire fac ' c. If a reall action be brought by severall Praecipes against two or more if the Demandant be Nonsuit against one he is a nosuit against all for as to the Demandant it is but one Writ under one Teste 47. E. 3. 6. b. Severance is twofold viz. by Summons ad sequend ' simul and that is when one of the Demandants or Plantiffs never apeared and by award of the Court of Nonsuit without any Summons and that is after appearance fo 149. b. At the Common Law upon every continuance or day given over the Plantiff might have been Nonsuit and therefore after Verdict given if the Court gave a day to be advised at that day the Plantiff was demandable and therefore might have been Nonsuit which is now remedied by the Statute of 2 H. 4. cap. 7. But after demurre in law joyned if the Court doth give a day over at that day the Demandant or Plantiff is Demand and may be Nonsuit for that is not holpen by any Statute 2 H. 5. 5. and after an award to account the Plantiff may be Nonsuit and so note a diversity between an interlocutory award of the Court and a finall Iudgement l. 11. fo 39. 41. Medcalfs Case Albeit the Lord be Nonsuit yet the infranchisment of the villain doth remain for that grew by the appearance to the Writ So it is if the Writ do abate Wheresoever the Lord giveth to the villain a just cause of action he is
Lord will distreine averia Carurae where there is a sufficient c. to be raken beside 5. If the Lord coming to distreine had no view of the Cattell within his Fee though the Tenant drive them off purposely or if the Cattell of themselves after the view goe out of the Fee or if the Tenant after the view remove them for any other cause than to prevent the Lord of his distresse In all these cases if the Lord distreine the Tenant may make rescous Vide les autorities en ceux cases 1. 6. E. 4. 11. b. F. N. B. 102. E. Lib. 4. f. 11. Bevills c. 8. H. 4. 1. 2 17 E. 3. 43. Rescous 14. If a man come to distreine for dammage feasant and see the beasts in his soile and the owner chase them one of purpose before the distresse taken if the owner of the Soile disterine them the owner of the cattell may tescue them for the beasts must be damage fesant at the time of the distresse 16. E. 4. 10. Lib. 9. fo 22. in case de avowrie There is a diversity between a Warrant of Record and a warr or an Authority in Law for if a Capias be awarded to the Sheriff to arrest a man for felony albeit the party be innocent yet cannot he make rescous But if a Sheriffe will by authority which the Law giveth him arest any man for Felony which is not guilty he may rescue himself 14. H. 7. 20. tit Just de peace 9. To counterplead the Plantiff in an Ass by which he is delayed maketh him that pleadeth it a disseisor Otherwise it is if he had pleaded nul tort c. 24. Ass 3. 29. Ass 52. Brit. Fo. 108. If any man be disturbed to enter and manure his Land this is a disscisin of the Land it self for qui adimit medium dirimit finem qui obstrnit aditum destruit commodum 26. Ass 17. 3 E. 4. 2. par Littleton Sont 4. causes de disseisin de rent charge sc Rescous replevin enclosure denier and you may adde a Fifth oiz. reststance to distreine counterpleading and vouching a Record and failer thereof Deniall is a desseisin of a rent charge as well as of a rent seck albeit he may distreine for the rent charge as well as for rent service Nota. that when Bookes say that detainer of a rent charge or seck is a disseisin it must be intended upon a demand made 14. E. 4. 4. Et Sont 2. causes de disseisin de rent seck viz. denier inclosure Sect. 240. Maxime paci sunt contraria vis injuria Omnes illos dicimus armatos qui habent cum quo nocere possunt c. Bract. Lib. 4. f. 162. Armorum appellatione non solum scuta gladii galeae continentur sed fustes lapides as the Poet. Jamque faces saxa volant furor arma miniâ—â—rat Virgillius 1. Aeneid Sed vim vi repellere licet modo fiat moderamine inculpatae tutelae non ad sumendam vindictam sed ad propulsandam injuriam Vide Sect. 589. Where a disseisin shall be by way of admittance of the owner of the rent Since Littletons time a right profitable Statute 32. H. 8. ca. 37. hath beene made for the recovery of arrerages of rents in certaine cases c. First When Littleton wrote the Heirs Executors or Administrators of a man seised of a rent service rent charge rent seck or fee fame in fee simple or fee taile had no remedy for arrerages incurred in the life of the owner of such rents But now a double remedy is given to the Executor or Administrator for payment of debts c. viz. either to destrain or to have an action of Debt 2. The preamble of the Statute concerning Executors or Administrators of Tenant for life is to be intended of Tenant pur auter vie so long as Cesty que vie liveth who are also so holâ—en by the said double Remedy but after the estate for life determined his Executors or Administrators might have had an action of Debr by the Common Law but they could not have distrained which now they may c. l. 4. 49. Ognels Case Dyer 375. 3. If a man make a lease for life or lives or a gift in taile reserving rent this is a rent service within the Statute 4. The action of debt must be brought against them that tooke the profits when the rents became arrere or against their Executors or Administrators but the distresse may bee taken upon the land be it in the Tenants hands or of any other that claimes by or from him i. e. from or under him by purchase gift or descent and not above him as the Lord by Escheat claimeth c. by reason of his Seigniory which is a Title Paramount l. 7. 39. Lillingtons Case 11. H. 4. 94. 5. Lord and Tenant rent is arrere the Lord grants his Seigniory and dyeth The Executor shall have no remedy for these arrerages because the grantor himselfe had no remedy for them when he dyed in respect of his grant and the act is accordingly 6. If the Tenant make a lease for life remainder for life remainder in set Tenant for life payes not the rent due to the Lord the Lord dyeth Tenant for life dyes the Executor cannot distrain upon him in remainder for he claimes not by descent by or from Tenant for life And so it is of a Reversion But if a man grant a rent charge to A. for the life of B. and letteth the lands to C. for life the remainder to D. in fee the rent is arrear for divers yeares B. dyeth C dyeth A. may destraine D. in remainder for all the arrerages by the latter branch of the Statute 22. H. 8. l. 5. 118. Edridges Case 7. For the arrerage of a Nom. Paenae and for reliefe or for Aid pur faire fits Chivaler c. This Statute giveth no remedy For arrerages of the Nom. Paenae the grantee or his Executor c. may have an action of Debt for Relief the Lord must distrain but his Executor by the Common Law shall have action of Debt W. 1. c 36. F. N B. 122. Note all manner of arrerages of rents issuing out of a Freehold or inheritance whether they be in Money or Corne Cattle c. within the Statute but worke dayes or any corporall service c. are not 8. If a Feme sole seised of a rent in fee taketh husband and dyeth the husband by the Common Law should not have the arrerages due before marriage but now the Statute giveth him remedy for the same L. 4. Ognels Case Liber Tertius CAP. I. Of Parceners Sect. 241. OUr Author having treated in his two former Books 1. Of Estates of Lands and Tenements and in his second Book of Tenures whereby the same have been holden Now in his third Book doth teach us divers things concerning both of them as 1. the Qualities of their Estates 2. In what cases the
of any debt due to the Testator he may make an Acquittance but in thaâ— case a Release without payment is voyd and generally what soever an Infant is bound to doe by Law the same shall binde him albeit he doth it without sute of Law 2 M. Dyer 104. An action of account doth lie against a Bayliff that hath administration and charge of lands goods c. for the profits which he hath raised or made or might by his industry or care have reasonably raised or made his reasonable charges and expences deducted Brit. fol. 62. 70. 41 E. 3. 39. An Account against a Receiver is when one receiveth money to the use of another to render an account but upon his account he shall not be allowed his expences and charges Except in some cases As if two joynt Merchants occupy their Stock c. in common one of them naming himself a Merchant shall have an account against the other naming him a Merchant and shall charge him as Recep ot denariorum ipsius B. ex quacunque causa contractu ad comm unem utilitatem ipsorum A. B. provenient sicut per legem mercatoriam rationabiliter monstrare potuit 43 E. 3. 31. 30 E. 1. Account 127. 10 H. 7. 16. lib. Intrat 17 18 19. F.N.B. 118. So as there be but three kindes of Writs of Account viz. 1. Against one as Guardian 2. Against one as Bayliff And 3. as Receiver F. N. B. 219. d. And to maintain an action of account there must be either a privity in deed by the consent of the party 2 Mar B. Account 89. F. N. B. 117. Pl. Com. 542. 2 H. 4. 12. 4 H. 7. 6 c. or a privity in law ex provisione legis as against a Guardian c. Minor surare no potest Bract. l. 5. f. 340. b. For an infant cannot make his Law of Non-Summons 13 E. 3. Ley 50. and therfore the default shall not prejudice him 2. Mar. Dyer 104. 105. But an infant of the age of 12 yeares shall take the oath of allegiance Vide Sect. 85. 91. An infant cannot upon his oath make his Law in an actioâ— of debt 1. H 7. 25. 15. E. 4. 2. and the husband and wife of full age for the debt of the wife before the converture shall make their Law 9. E. 4. 24. 15 E. 4. 2. Grant is a conveyance of a thing which cannot pass without Deed as advowsons rents c. Lib. 3 f. 63. Lincol. Coll. c. Sect. 260 261. The reversion expectant upon an estate taile is of no account in Law for that it may be cut off by the Tenant in Taile Tres. in fee S. and fee Taile discend al 2. files c. If the youngest daughter alien part of the Lands in Fee simple and dyeth so as a full recompence for the lands entailed descends not to her issue she may waive the taking of any profits thereof and enter into the Land entailed for the issue in taile shall never be barred without a full recompence though there be a warr in Deed or in Law descended Fo 173. a. If a man be seised of three Manors of equall value in Fee and taketh wife and chargeth one of the Manors with a reâ—â— charge and dyeth she may by the provision of the Law take a third part of all the Manor and hold them discharged bâ— if she will accept the entire Manor charged it is holden that she shall hold it so 26. E. 3. Dower 133. 18. H. 6. 17. A partition of lands intailed between perceners if it be equall at the time of the partition shall bind the issues in taile for ever albeit the one doe alien her part Dyer 1. Mar. 98. Sect. 262. When the privity of the estate is destroyed by the Feoff of one parcener upon eviction of a moity by force of an entaile against the other she shall not enter upon the alienee But in the case that Littleton putteth of disseisin of an Infant c. when the privity of the estate remaineth and the part of one is evicted she shall enter and hold in Coparcenary with her other copercener and so it is in the case of an exâ—hange 15. E. 4. 3. a. per. Littleton Lib. 4. 221 c. Bastards c. If the whole estate in part of the pâ—â—pâ—â—ty be evicted that shall avoid the partition in the whole be it of a Manor that is entire or of acres of ground c. that be severall for the partition in that case implyeth for this purpose both a warr and a condition in Law and either of them is entire and giveth an entry in this case into the whole 13. E. 4. 3. 42. Ass 22. Lib. 4. ante c. Also if any estate of freehold be evicted from the Coparcener in all or part of her pâ—â—pâ—â—ty it shall be avoided in the whole vide libr. nota Fo. 170. a ex grat If but part c. be evicted as an estate in taile or for life leaving a reversion in the Copercener Where one Copercener taketh benefit of the condition in Law she defeateth the partition in the whole But when she vouched by force of the warr in Law for prrt the partition shall not be defeated in the whole but she shall recompence for that part Sic nota diversit 5 E. 3. Tit. Voucher 249. Also there is another diversity between a recovery in value by force of the warranty upon the exchange upon the partition for upon the exchange he shall recover a full recompence for all that he loseth but upon the pahtition she shall recouer but the moity or halfe of that which is lost to the end that the losse may be equall There are more and greater privities in case of partition in persons bloud and estates than there is in exchanges 19. H. 6. 26. 18. E. 2. t. aid 171. When the whole Privity between Coparceners is destroyed there ceaseth any recompence to be expected either upon the condition in Law or warranty in Law by force of the partition Fo. 174. a. If one coparcener maketh a Feoffment in Fee and after her Feoffee is impleaded and voucheth the Feoffer she may have aid of her coparcener to deraign a Warrant Paramount but never to recover pro rata against her by force of the warrant in law upon the partition for by her alienation she hath dismissed her self to have any part of the land as Parcener And as parcener she must recover pro rata c. 31. E. 3. 24. 11. H. 4. 22 23. And yet in some case the Feoffee of one coparcener shall have aid c. and therefore if there be two coparceners and they make partition and the one of them infeoffs her Son and Heir apparent and dyeth the Son is impleaded he shall pray in aid c. for that the warranty between the Mother and the Son is by Law adnulled and therefore the Law giveth the Son albeit he be in by Feoffment to pray in aid
of the other parcener to deraign the Warrant Parramount wherein note the great Equity of the Common Law 43. E. 3. 23. Pl. Com. 32. E. 1. tit Aid 178. But if a man be seised of lands in fee and hath issue two daughters and make a gift in tail to one of them and dye seised of the Reversion in fee which descends to both Sisters and the Donee of her issue is impleaded she shall not pray in aid c. either to recover pro rata or to deraign the Warrant c. for that the other Sister is a stranger to the State tail whereof the eldest was sole tenant and never partition was or could be thereof made 2 H. 6. 16. Albeit it is in the power of the Tenant tail to cut off the Reversion yet if the Infant enter before it be cut off the Law hath such Consideration of this Reversion that she that loseth it shall enter into her Sisters part and hold with her in Coparcenery for that the privity between them was not wholly destroyed Sect. 263 264. Si le part dn parcener soit defeat per loial entre c. el poit enter occupier ouesque les auter parceners c. eux compeller de faire novell partition c. Breve de partit fac gift pur parceners tantsolement Et ciel breve gift envers tenant per le curt ' encore il men ne poit auÌ„ tiel breve Albeit that the Tenant by the Curtesie be an estranger in blood yet the Writ de partit fac clearly lies against the Tenant per Curtesie because he continueth the state of Coparcenery 3. E. 3. 47. Also if two Coparceners be and one doth alien in fee they are Tenants in Common and severall Writs of Praecipe must be brought against them and yet the parcener shall have a Writ of partition against the alienee at the Common law 28 E. 3. 5. If there be three Coparceners and the eldest taketh husband and the husband purchase the part of the yongest he and his wife shall have a Writ of Partition against the middle Sister at the Common Law because he is seised of one part in the right of his wife who is a parcener Dyer 1 Mar. 98. F. N. B. 52 Regist Since Littleton wrote by the Statute 31 H. 8. c. 1. 32 H. 8. cap. 32. vide Sect. 290. one joynt-tenant or tenant in common may have a Writ of Partition against the other and therefore the alienee of one parcener may have a Writ of Partition against the other parcener because they are Tenants in common So Tenant per Curtesie shall have a Writ c. upon the Statute for albeit he is neither joynt-tenant nor tenant in common for that a Praecipe lyeth against the parcener and tenant per Curtesie yer he is in equall mischief as another tenant for life Br. tit Partit 141. Dyer 3 M. 128. A. 7 Eliz. 243. CHAP. II. Parceners by Custome Sect. 265 c. PArcenery per le Custome est lou terres discend a les fits en Gavelkind c. in Wallia haereditas partibilis est inter haeredes masculos Sect. 212. Stat. Walliae 12 E. 1. Sons are parceners in respect of the Costom of the fee or inheritance and not in respect of their person as Daughters and Sisters c. be Bracton l. 5. fo 428. Hotchpot est de mitt les terres leigne soer en frankmarriage les terres del auter soer en fee simple ensemble donques partit serre fert c. Vide Sect. 6. 266. c. There must be a Custom alleaged in some County c. to inable the wife or children to the Writ de rationabile parte bonorum Regist 142. 34 E. 1. Detin 56. 7 E. 4. 21. But such as be reasonably advanced by the Father c. shall have no further part of the goods for the words of the Writ be Nec in vita patris promoti fuerunt 3 E. 3. Detin 156. 40 E. 3. 18. fo 176. b. vide nota Sect. 268. and 269. After this putting into Hotchpot and partition made the lands given in Frankmarriage are become as the other lands which are descended from the common Ancestor and of these lands if she be impleaded she shall have aid c. So if he Coparcener that hath a rent granted to her for owelty of artition hath the rent as it had descended to her c. Brit. cap. 72. 10 E. 3. 37. 29 Ass 23. Et tout foits sur tiel partit ' les terres dones en frankmarriage demurgent a les Donees a lour heires solonque le forme de le done Car lauter parcenter navoit riens de ceo c. vide lib. so 177. b. Quod est inconveniens aut contra rationem non est permissum in lege Sect. 271 272 273. Dones en frankmarriage fueront per la common ley deuâ—â—â— lest west 2. tout temps puis ad este continue c. The gifts doe continue but not the estates 12 H. 4. 11. Item tiel mitter en Hotchpot c. est lou les auters terres ou tenements que ne fuer ' Dones en frankmarriage descend de les Donors en frankmarriage tousolement c. Si les terres dones in frankmarriage sont de tant egall va pur le an que le remnant sont ou de pluis valtie en vaine tiels tres c. ser mis en Hotchpot c Lex non praecipit inutilia inutilis labor stultus The Law shall adjudge of the value as it was at the time of the partition fo 179. a. vide nota unless the land be improved or decaid by the proper act or default of the parties Sect. 174 c. Nota que terres ne ser mis c forsque ou ils discend en fee simple car de terres discendus en fee taile partit serra fait sicome nul tiel done en frankmarriage ad este fait for the issue claimeth per formam doni voluntas donatoris c. observetur If the Ancestor infeoff one of his daughters of part of his land or purchase lands to him and her and their heires or giveth her part of his lands in taile yet she shall have a full part of the remnant of the lands in fee simple for the benefit of putting c. into Hotchpot is only appropriate to a gift in frank-marriage quia maritagium cadit in partem which shall be accounted as parcell of her advancement 13 E. 2. tit Tail Bract. l. 2. fo 77. Sect. 276. Nota that modus convent uicunt legem consensus tollit errorem But if partition be by the Kings Writ then every parcener must have his part 24 H. 3. tit partit 19. CHAP. III. Of Joynt-tenants Sect. 277. THere be joynt-tenants by other Conveyances than Lîttleton here mentioneth as by Fine Recovery Bargain and Sale Release Confirmation c. So there
the profits rising out of the land or doing of Trespasse upon the land as here by the Examâ—naâ—â—â—â—s do appear for the right is several and the taking of the profits in common 21 E. 4. 11. 22. 22 H. 6. 50. 58. 10 H. 7. 16. F.N.B. 117. a. The second diversity is between Chattels reals that are apportionable or severable as leases for years Wardship of Lands Interest of Tenements by Elegit Statute Merchant Staple c. of Lands and Tenements and Chattels reals entire as Wardship of the body and a Villain for years c. for if one Tenant in common take away the Ward or Villain c. the other hath no remedy by action but he may take them again Another diversity is between chattels reals and chattels personals for if one Tenant in common take all the chattels personals the other hath no remedy by action but he may take them again And herein the like Law is concerning chattels reals entire and chattels personals for this purpose But of chattels entire as of a Ship Horse or any other entire chattel real or personal no survivor shall be between them that hold them in common 10 H. 4. Trespasse 178. 11 H. 4. 3. And Tenants in common shall not joyn in an Eject ' firme c. for that such actions concern the Right of Lands which are several 21 E. 4. 11. 12. fo 200. a. If two Tenants in common be of a Dove-house and the one destroy the old Doves whereby the flight is wholly lost the other Tenant in common shall have an action of Trespass and he cannot plead in barre Tenancy in common 47 E. 3. 22. b. And so it is if one Tenant in common c. destroy all the Deer in a Park c. 4 E. 2. Trespasse 233. And so it is if one Tenant in common carry away the meer stones c. 1 H. 5. 1. 2 H. 5. 3. And if two Tenants in common be of a folding and the one of them disturb the other to erect Hurdles c. 13 E. 3. Trespass 212. 18 H. 6. 5. If two several owners of houses have a River in common c. if one of them corrupt the Water River the other shall have an action upon his Case 13 H. 7. 26. If two Tenants in common or joyntenants be of an house or Mill and it fall in decay and the one is willing to repair the same and the other will not he that is willing shall have a Writ de reparatione fac pro bono publico F. N. B. 127. All those Books which affirm that an action of Account lieth by one Tenant in common or joyntenant against another must be intended when the one maketh the other his Bayliff for otherwise never his Bayliff to render an Account is a good plea F.N.B. 118. 1. 10 H. 7. 16. 2 E. 4. 25. Westm 2. cap. 23. If there be two Tenants in common of a Wood Turbary Piscary c. and one of them doth waste against the will of his companion his companion shall have an action of Waste vide lib. fo 200. b. Nota. Some do hold that an action of Waste doth not lie upon the Statute W.C. 23. against Tenant in common c. for destroying the whole flight of Doves 47 E. 3. 22. 50 E. 3. 3. Note that one Tenant in common may infeoff his companion but not release because the Freehold is several Joyntenants may release but not infeoff because the Freehold is joynt but Coparceners may both infeoff and release because their seisin to some intents is joynt and to some several Sect. 324. Quant un home voile merrer un feoffment fait a luy ou un done en taile ou lease pur vie d'ascun terres c. la il dirra par force de quel feoffment c. il fuit seisee c. Mes lou un voile plead un lease ou grant fait a luy de chattel real ou personal la il dirra per force de quel il fuit possesse c. When a man pleads a lease for life c. which passeth by livery he is not to plead an entry for he is in actuall seisin by the livery it self Otherwise it is of a lease for years CHAP. V. Of Estates sur Condition Sect. 325. COnditio dicitur cum quod in casum incert ' qui potest tendere ad esse aut non esse confertur Condic ' est 2 ex 1. Facti i. e. upon a condition expressed by the party in legal terms of Law 2. Juris i. e. Tacitè created by law without any words used by the party Littleton subdivideth Condition in Deed into Condition precedent of which it is said Condic ' adimpleri debet priusquam sequatur effectus and Condition subsequent Again of Condition in Deed some be Affirmative and some Negative and some in the Affirmative which imply a Negative Some make the estate whereunto they are annexed voidable by Entry or Claim and some make the estate void ipso facto without entry c. Also of Condition in Deed some be annexed to the rent reserved out of the land and some to collateral acts c. some be single some in the conjunctive some in the disjunctive Mirror cap. 2. 8. 15. 17. fol. 101. b. Sur Condic ' en fait eÌ„ sicome un home per fait indent infeoffa un auter in fee render certain rent c. Here Littleton putteth one Example of six several kindes of Condition 1. Of a * Condition * single in Deed. 2. Of a Condition subsequent to the estate 3. Of a Condition annexed to the rent And 4. a Condition that defeateth the estate 5. A Condition that defeateth not the estate before entry And 6. a Condition in the Affirmative which implyeth a Negative as behind or unpaid implyeth a Negative viz. not paid Bendloes en Trespass 5 Mar. Et en cest case si le rent ne soit pay c. The Land is the principall debtor for the rent issueth out of the Land and that is the place of demand appointed by Law and the demand must ever be made at the most notorious place and the last time of demand of the rent is such a convenient time before the Sun-setting of the last day of payment as the mony may be numbred and received 40 Ass 11. 49. Ass 5. 15. Eliz. Dy. 329. lib. 4. Burroughes c. f. 72. c. Pl. Com. 70. and 172. Hill and Granges c. Lib. 5. f. 114. Wades c. If a rent be granted payable at a certain day and if it be behind and demanded that the grantee shall distrein for it in this case the grantee need not demand it at the day but if he demand it at any time after he shall distrein for it Lib. 7. f. 28. Maundes c. Mich. 40 41. El. Stanly c. Regularly it is true that he that entreth for a condition broken shall be seised in his first estate or of that estate which he had
A. be bound to B. to pay 10. l. to C. A. tenders to C. and he refuseth the Bond is forfeit But if the act had been by the Condition to be made to the Obligee or to any other for his benefit a tender c. shall have the benefit because he himself is the cause that the Condition could not be performed 22 E. 4. 13. 10 H. 7. 14. b. 35 H. 8. Dyer 56. lib. 5. fo 23. Lambes Case * 8 E. 4. 14. 5. Between a Condition of an Obligation and a Condition upon a Feoffment where the act that is local is to be done to a stranger and where to the Obligee or Feoffor himselfe for the stranger shall be infeoffed as soon as conveniently may be otherwise it is of the Feoffor c. for the privity of the Condition c. Lib. 6. fo 31. Boothies Case l. 2. fo 79. b. Seignieur Cromwels Case 21 E. 4. 41. 2 E. 4. 3 4. 4 E. 4. 4. b. 26 H. 8. 9. b. 6. When the Obligor or Feoffor is to infeoff a stranger as hath been said and when a stranger is to infeoff the Feoffee or Obligee As if A. infeoff of black acre upon Condition that if C. infeoff B. of white acre A. shall re-enter C. hath time during his life if B. doth not hasten it c. and so of an Obligation fo 108. b. 7. But in some cases albeit the Condition be collateral and is to be performed to the Obligee and no time limited yet in respect of the nature of the thing the Obligor shall not have time during his life to performe it As if the Condition of an Obligation be To grant an Annuity to the Obligee during his life payable at Easter this Annuity must be granted before Easter c. Dyer 14 Eliz. 311. 8. When the Obligor Feoffor or Feoffee or a stranger c. is to do a sole act as to go to Rome c. they have time during life c. The Executor c. may when a man is limited pay the money vide S. 334. l. 5. fo 96 97. Goodales Case If I infeoff one in fee upon Condition to make a gift in tail to I.S. and he refuseth it and a tender and refusal is made there the Feoffor shall not re-enter for it was intended that the Feoffee should have an estate in the land And so it is if the Condition be That the Feoffee shall grant a rent charge to a stranger 2 E. 4. Enter Congeable 25. But otherwise it is if the Condition be to infeoff I. S. and his heirs and a tender and refusal is made c. 19 H. 6. 34. When the Executors make a tender and the Feoffee refuseth albeit the heir who hath a Title of Entry be a third person yet is he no stranger but he and the Executors also an◠privies in Law Concerning goods and chattels either in possession or in action the Executor doth more actually represent the person of the Testator then the heir doth the person of the Ancestor For if a man bindeth himself his Executors are bound though they be not named but so it is not of the heir Sect. 338 339. En touts cases de Condition de payment de certain fum en gross touchant terres c. si loial tender soit unsoits refuse celuy que doit le tender mony ē de ceo assouth discharge pur touts temps apres i. e. for ever to make any other tender but if it were a duty before though the feoffor enter by force of the Condition yet the debt or duty remaineth As if A. borrow 100 l. of B. and after mortgage lands to B. and he refuse it A. may enter c. and the land is freed for ever of the Condition but yet the debt may be recovered by action c. But if A. without any loan debt or duty preceding infeoff B. of land upon Condition for the payment of 100 l. to B. in nature of a gratuity or gift in that case if tender be made and he refuse B. hath no remedy therefore fol. 209. b. Vide Libr. c. The Agreement precedent doth guide the payment subsequent and the payment ought to be real and not in shew or appearance 18 E. 4. 18. 19 H. 6. 54. 20 E. 3. Account pag. 70. If the Condition upon Mortgage be To pay to the Mortgagee or his heirs the money c. and before the day of payment the Mortgagee dyeth the Feoffee cannot pay the money to the Executors c. for In hoc casu designatio unius personae est exclusio alterius expressum facit cessare tacitum Lib. 5. c. Dyer 2 Eliz. 181. 44 E. 3. 1. b. fo If a man make a Feoffment in fee upon Condition That if the Feoffor pay to the Feoffee his heirs or assignes 20 l. before such a Feast and before the Feast the Feoffee maketh his Executors and dyeth the Feoffor ought to pay the money to the heir and not to the Executors for the Executors in this case are no Assignees in Law And the Feoffee hath an estate in the land which he may assign over and where there may be Assignees in Deed the Law shall never seek out or appoint any assigns in Law 27 H. 8. 2. 4 Mar. 140. a. M. 23 24. El. in Curia Wardorum inter Randall Browne 2 El. Dyer 181. Pl. Com. Chapmans Case 186. 188. 17 Ass Pl. 2. Sect. 240. Comment ascun ont dit que le feoffor ē tenus de tender c. sur la terre tenus in Mortgage pur ceo que le condition ē dependant sur le terre uncore ceo ne prove que le feasans de le condition deste performe covient erre fait sur la terre c. lestate de la terre ē dependant sur la condition c. The money is a sum in grosse and collateral to the Title of the land and the Feoffor must tender the money to the person of the Feoffee and it is not sufficient for him ro tender it upon the land 8 E. 4. 4. 14. 11 H. 4. 62. 17 Ass p. 2. 21 H. 7. Kelway 74. 16 Eliz. Dyer 327. l. 4. f. 73. Boroughs Case 21 E. 4. 6. Otherwise it is of a rent that issueth out of the land 8 E. 4. 2. But a corporal service is issuing out of land as Homage c. must be done to the person of the Lord 21 Ass 3. 7 E. 4. 4. 21 E. 4. 17. 19 Eliz. Dyer 354. lib. 8. fo 92. Frances Case If A. be bound to B. with condition that C. shall infeoff D. on such a day C. must give notice to D. thereof and request him to be on the land at the day to receive the Feoffment and he is bound to seek D. and to give him notice 2 E. 4. 3. 4. Sect. 341 342. Est diversity quant al tender de le rent que ē issuant horse de la terre
man will take advantage of a Condition if he may enter he must enter and when he cannot enter he must make a claim because a Freehold and Inheritance shall not cease without entry or claim and also the Feoffor or Grantor may wave the condition Pl. 133. b. Browning If a man bargain and sell land by Deed indented and inrolled with a proviso That if the Bargainor pay c. that then the state shall cease and be void he payeth the money the state is not revested in the Bargainor before a re-entry And so it is if a bargain and sale be made of a reversion remainder advowson rent common c. l. 2. f. 50. Sir Hugh Cholmleys Case fo 218. vide nota But the said Rule hath divers Exceptions 1. In this present case of Littleton for that he can make no entry he shall not be driven to make any claim to the reversion for seeing by construction the Freehold and Inheritance passeth maintenant out of the lessor by the like construction the Freehold and Inheritance by the default of the lessee shall be revested in the lessor without entry or claim l. 1. f. 174. Digs Case 20 E. 4. 19. 20 H. 7. 4. b. 2. If I grant a rent charge in fee out of my land upon condition if the condition be broken the rent shall be extinct c. 3. If a man make a feoffment unto me in fee upon condition that I shall pay unto him 20 l. at such a day c. before the day I let unto him the land for years reserving a rent and after fail of payment the feoffee shall retain the land c. and the rent is extinct c. for that the feoffor could not enter c. for he himself was in possession and the condition being collateral is not suspended by the lease otherwise it is of rent reserved If a man make a lease for 40 years and the lessor grant the reversion to the lessee upon condition and after the condition is broken the term was absolutely surrendred And the diversity is when the lessor grants the reversion to the lessee upon condition and when the lessee grants or surrenders his estate to the lessor for a condition annexed to a surrender may revest the particular estate because the surrender is conditional But when the lessor grants the reversion to the lessee upon condition there the condition is annexed to the reversion and the surrender absolute 7 E. 4. 29. 14 E. 4. 6. 45 E. 3. 8 E. 2. Ass 395. A Guardian in Chivalry took a Feoffment of the Infant c. 50 E. 3. 27. Vide lib. fo 218. b. Ou le feffor poit loialment enter pur le condition enfreint c. la il nad franktenement devant son entry c. S. 351. Sect. 352. It is necessary when a day is limited to adde to the condition that the Feoffee or his heirs do perform the condition but when no time is limited then the Feoffee at his peril must perform the condition during his life although there be no request made or else the Feoffor or his heirs may re-enter And when the Feoffee is to give the land to the Feoffor and his wife in Tail before Michaelmas c. and if the Feoffee dye before the day the state of the heir of the Feoffee shall be absolute 15 H. 7. 13. 33 H. 6. 26 27. 9 Eliz. Dyer 262. Pl. 456. lib. 2. f. 79. Seignior Cromwels Case If a man make a Feoffment in see upon condition that the Feoffee shall make a gift in Tail to the Feoffor the remainder to a stranger in fee there the Feoffee hath time during his life because the Feoffor who is party and privy to the condition is to â—ake the first estate But if the condition were to make a gift in Tail to a stranger the remainder to the Feoffor in fee there the Feoffee ought to do it in convenient time for that the stranger is not privy to the condition and he ought to have the profits presently A condition that is to create an estate is to be performed by construction of Law as near the condition as may be and according to the intent of the condition albeit the letter c. cannot be performed But otherwise it is of a condition that destroyeth an estate for that is to be taken strictly unless it be in certain special Cases c. As if a man mortgage his land to W. upon condition that if the Mortgagor and I.S. pay 20 s. at such a day to the Mortgagee that then he shall re-enter the Mortgagor dyeth before the day I.S. pay the money to the Mortgagee this is a good performance of the condition But if a man make a lease to two for years with a proviso if the lessees dye during the term the lessor shall re-enter one lessee alien his part and dye the lessor cannot re-enter but the Assignee shall enjoy the term so long as the survivor liveth because the lease by the proviso is not to cease till both be dead 30 H. 8. Condition Br. 190. 33 H. 8. Joyntenants Br. 62. Note a diversity when the feoffee dyeth for then the condition is broken and when the feoffor dyeth for then the estate is to be made as near the intent of the condition as may be 2 H. 4. 5. fo 219. b. Note That after the decease of the husband the state is not to be made to the wife and the heirs of her body by her late husband ingendred and so to have an estate of Inheritance as she should have had by survivor if the estate had been made according to the condition but onely an estate for life without impeachment of Waste c. Sans impeachment per action de Waste extends but to the action c. Lib. 11. fo 83. l. 9. f. 9. l. 2. 23. Sect. 353 354. Note That the feoffee hath time during his life to make the estate unless he be reasonably required by them that are to take the estate This is to be intended of parties or privies and not of meer strangers for there the state must be made in convenient time fo 220. a. Si feoffment soit fait sur condition que le feoffee re-enfeoffor plusors homes a av tener a eux a lour heires c. touts ceux que devient av estate mor ' devant afc ' estate fait a eux donque doit le feoffee faire estate al heire celuy que survesquist de eux a aver tener a luy les heires celuy que survesquist 220. b. The reason wherefore the Habendum is thus limited c. is for that if it were made to the heirs of the heir then some by possibility should be inheritable to the land which should not have inherited if the estate had been made to the survivor and his heirs and consequently the condition broken Sect. 355 356. Of Disabilities some be by act of the party and some
in fee upon condition that they shall not alien to some intent this is good and to some intent it is void for to restrain an alienation by Feoffment or alienation by Deed it is good because such an alienation is tortious and voidable but to restrein their alienation by fine is repugnant and void because it is lawfull and unavoidable Whatsoever is prohibited by the intent of any Act of Parliament may be prohibited by condition Sect. 363. A man makes a gift in tail to A. the remainder to him and to his heirs upon condition that he shall not alien some are of opinion that this is a good condition and shall defeat the alienation for the estate tail onely and leave the fee simple in the alienee for that the condition in Law extends onely to the estate tail 11 H. 7. 6. c. fo 224. a. But a gift in tail may be made upon condition that tenant in tail c. may alien for the profit of his Issues Sect. 364. * Nota. Home poit doner terres en taile sur condition que si le tennant en le taile ou ses heires alienont en fee ou en taile ou pur terme daut vie c. auxy que si touts issues veignants del Tenant in taile soient morts sans issue que donques bien lirroit al donor a ses heires d' enter c. partiel voy le droit del taile poit ereÌ„ solve apres discontent in al issue en le taile si ass ' y soit issint que per voy dentre del donor ou de ses heirs le taile ne serra my defeat per tiel condition Littleton to make the condition good addeth an alienation which amounted to a wrong and he restraineth not the alienation onely but added and die without issue to the end that the right of the estate in tail might be preserved and not defeated by the condition but might be recovered again by the issue in tail in a Formedon Si plures conditiones ascriptae fuerunt donationi conjunctim omnibus eÌ„ parendum ad veritatem copulative requiritur quod utraque pars sit vera Brac. l. 2. fo 19. Pl. 76. Wimbesh case and 107. Fulmerstons case But si divisim cuilibet vel alteri eorum satis eÌ„ obtemperare in disjunct sufficit alteram partem esse veram If a man make a Lease to the husband and wife for 21. yeares if the husband and wife or any child between them so long shall live and then the wife die without issue the Lease shall continue for the disjunctive referreth to the whole Pl. 30 El. Com. ban Baldwin and Cock Trupennies case and so it is if any use be limited to certain persons untill A. shall come from beyond Sea and attain unto his full age or die if he doth beyond Sea come from or attain to his full age the use doth cease H. 35 El. Trans per sur Mordant ban R. Sect. 365. Il eÌ„ common erudit que home per plee ne defeatera asc ' estate de franktenement per force dasc ' tiel condition Sin que il merâ—â—â— le propoâ—e de condition en escript c. Si non en speciall cases c. Mes de chattels reals sicome de Lease pur ans auterment est issint eÌ„ de dones grants de chattels personals and contracts personals c. Be the action reall personall or mixt if a condition be to defeat a freehold it is Reg. true that a Deed must be shewed forth in Court. Because every Deed ought to approve it self that it be sufficient in Law and that the Court shall adjudge and secondly be proved by others and this concerns matters of Fact as sealing and delivery and belongs to the jurors 9 E. 4. 25 26. 14 H. 8. 22. b. 28 Ass pl. 1. l. 10. fo 92. Dr Layfields case 11 H. 7. 22. b. Upon a gift in tail or a Lease for life a rent may be reserved without deed but a condition with re-entry cannot be reserved without deed in this case 45 E. 3. 21. a. By the Statute of 3 and 4 E. 6. ca. 4. and 13 El. ca. 6. the exemplification or constat under the great Seal of the inrolment of any Letters Patents made since the 4 of Feb. 27 H. 8. or after to be made shall be sufficient to be pleaded and shewed forth in Court as well against the King as any other person by the Patentees themselves c. Dyer 1 El. 167. 12 H. 7. 12. b. A constat Inspeximus c. ought to be had onely of the inrolment of Record and no deed c. can be inrolled unlesse it be duly and lawfully acknowledged Lib. 8. fo 8. The Princes case l. 5. fo 52 53. Pages case If Gardian in Chivalry in right of the heir enter for a condition broken he shall plead the state upon condition without shewing of any Deed because his interest is created by the Law and so it is of a Tenant by State Merch. c. and of Tenant in Dower c. 20 H. 7. 5. 35 H. 6. Manors des faits 11. b. But the Lord by escheat albeit his estate be created by law shall not plead condition to defeat a freehold without shewing of it because the Deed doth belong unto him A Tenant by the Curtesie shall not plead a condition made by his wife c. without shewing the Deed. But lessees for years and all others that claim by any conveiance from the party of justifie as servant by commandment c. must shew the Deed 14 H. 8. 8. Pl. 149. R. brought an ejection firme against E. of the Manor of D. which he had for years of the demise of C. c. E. maintained his entry c. and shewed no deed and the plea was good because the thing was executed Vide le case fo 226. a. 44 E. 3. 22. Nota the defendant being issue in tail was remitted to the estate tail If land be morgaged upon condition and the morgagee letteth the lands for years reserving a rent the condition is performed the morgagor reenters in an act of debt brought for the rent the lessee shall plead the condition and reentry without shewing forth the Deed. 45 E. 3. 68. Finch 10 H. 4. 9. b. If a woman give land to a man and his heirs by deed or without generally she may in pleading averre the same to bee causa matrim prolocuti albeit she hath nothing in writing to prove the same 9 E. 4. 25 26. 14 H. 8. 22. b. 11 H. 7. 22. b. F.N.B. 205. b. Sect. 366. Item Comt que home ne poit en asc ' act ' pleaded un condition que concerne le franktenement sans manurer escript de ceo encore poit home estre aid sur tiel condition per verdict de 12. homes prise â—large en Ass de no. diss c. Vide S. c. Judicium est quasi juris
the land was devised to A. for that purpose otherwise B. should be remediless Et interest Reipublicae suprema hominum testamenta rata haberi and the lessee of B. upon an actual ejectment recovered the moity of the land against A M. 31. and 32 El. Ban. R. Crickmers case Dyer 6 E. 6. fo 74. 7 E. 6. 70. Judicium pro veritate accipitur Fo. 236. b. Sect. 384. Defaire i.e. to defeat or undo infectum reddere quod factum est There is a diversity between inheritances executed and inheritances executory as lands executed by livery c. cannot by Indenture of defeasance be defeated afterwards and so if a disseisee release a disseisor it cannot be defeated afterwards c. but at the time of the release c. the same may be defeated c. for Quae incontinenti fiunt inesse videntur Bract. l. 2. f. 16. 17 Ass p. 2. 30 Ass p. 1. 11. But rents annuities conditions warranty c. that be inheritances executory may be defeated by defeasances made either at that time or at any time after and so the Law is of Statute Recognizance Obligation and other things executory 20 Ass p. 7. 7 E. 4. 29. Brown and Bestons case Pl. 131. 28 H. 8. Dy. 6. 27 H. 8. 15. If a man seised of lands in fee and having issue divers sons by Deed indented covenanteth in consideration of fatherly love c. to stand seised of three acres of land to the use of himself for life and after to the use of Thomas his eldest Son in Tail and for default of such issue to the use of his second Son in Tail with divers like remainders over with a Proviso that it shall be lawful for the Covenantor at any time during his life to revoke any of the said uses c. This Proviso being coupled with an Use is allowed to be good but in case of a Feoffment or any other Conveyance whereby the feoffee or grantee c. is in by the Common Law such a Proviso were meerly repugnant and void 27 H. 8. cap. 10. And first in the case aforesaid if the Covenantor who had an estate for life do revoke the uses according to his power he is seised again in fee simple without entry or claim 2. He may revoke part at one time and part at another 3. If he make a Feoffment in fee or levy a Fine c. of any part this doth extinguish his power but for that part whereas in that case the whole condition is extinct but if it be made of the whole all the power is extinguished So as to some purposes it is of the nature of a condition and to other purposes in nature of a limitation Lib. 1. fo 173 174. Digges case l. 1. f. 107. Albainers case l 10. f. 143. Screops case Lib. 7. fo 12 13. Sir Francis Englefields case 4. If he that hath such a power of revocation hath no present interest in the land nor by the Leasor of the estate shall have nothing then his Feoffment or Fine c. of the Land is no extinguishment of his power because it is meer collaterall to the Land 5. By the same conveyances that the old uses be revoked may new be created and limited where the former cease ipso facto by the revocation without either entry or claim 6. That these revocations are favourably interpreted because many mens inheritances depend upon the same Ex paucis dictis intendere plurima possis CAP. VI. Discent que tollent entries Sect. 385. DEscendere i.e. ex loco superiore in inferiorem movere Brit. fo 115 215. Vide S. 5. The Civilians call him haeredem qui ex testamento succedit in universum jus testatoris But by the Common Law he is onely heir which succeedeth by right of bloud Haeres dicitur ab haerendo quia qui haeres eÌ„ haeret hoc est proximus est sanguine illi cujus est haeres So as he that is hares sanguinis est haeres heâ—us haereditatis Nota in ancient time if the disseisor had been in long possession the disseisee could not have entred upon him Brit. Fo. 115. Likewise the disseisee could not have entred upon the Feoffee of the disseisor if he had continued a year and a day in quiet possession But the law is changed in both these cases onely the dying seised being an act in Law doth hold at this day 1 Ass 13. 9. Ass 15. Lamb. explic fo 120. 70. Porro autem quam maritus sine lite controversia sedem incoluerit eam conjux proles sine controversia possidento siqua in illum lis fuerit illata viventem eam haeredes ad se perinde atque is vivus accipiunto And one of the reasons of this ancient Law may be that the heir cannot suddenly by intendment of Law know the true state of his title Vide lib. fo 237. b. To a discent that taketh away an entry a dying seised is necessary but a man to other purposes may have lands by discent though his Ancestour died not seised 11 H. 7. 12. 40 E. 3. 24. Discents of inheritance incorporeall which lies in grant as Advowsons Rents Commons in grosse c. doe not put him that right hath to an action otherwise it is of houses and lands 6 H. 4 4. 15 E. 4. 14. F.N.B. 143. 9. 7. H. 4. 12. 5. 2. Ass p. 9. A recovery is had against Tenant for life where the remainder is over in fee Tenant for life dieth he in remainder enters before execution and dieth seised the entry of the recoveror is lawfull because he is privy in estate otherwise it is if the discent had been after execution 3 E. 4. 6. 12 E. 4. 19. 3 H. 7. 3. 6 E. 4. 11. 7 H. 7. 15. 5 H. 7. 31. 10 H. 7. 5. b. 5 H. 7. 2. A. recovereth an Advowson against B. in a Writ of Right and hath judgement finall the incumbent dieth B. by usurpation presents to the Church and his clark is admitted and instituted B. dieth A. is out of possession and the heir of B. is not so bound by the judgement either in bloud or estate but that he shall present 45 E. 3. qu. imp 139. B. levies a fine to A. of an advowson to him and his heirs after the Church becomes void B. presents by usurpation and his Clark is admitted and instituted this shall put A. the Conusee out of possession 8 E. 2. Qu. imp 166. Albeit the usurpation were in both the said cases before execution yet it put the rightfull Patron out of possession So note a diversity between a recovery of Land and of an Advowson Now by the Statute made since Littleton wrote it is enacted that except the disseisor hath been in the peaceable possession of such Manors Lands c. whereof he shall dye seised by the space of five years next after such disseisin c. without entry or continual claim c. that there such dying seised
use of the infant for the State is voidable But where an infant or a man of full age is disseised an entry by a stranger of his own head is good and vesteth presently the estare in the Infant or other disseisee So it is if Tenant for life make a Feoffment in fee an estranger may enter for a forfeiture in the name of him in the reversion and thereby the estate shall be vested in him P 39. El. Com Banco per Cur. 10. H 1. 16 7. E 3. 69 6. E 3. 6â— peâ— Thorp If the Mulier enter upon the Bastard and the Bastard recover the land in an Ass against the Mulier now is the interruption avoided and if the bastard die seised this shall barre the Mulier The possession of the King when he hath no cause of seisure shall be adjudged the possession of him for whose cause he seised 2. Ass 9. fo 245. b. Vide c. And note that the bastard must enter in vacuam poss and continue during his life without interruption made by the Mulier Acts without words may make an entry but not words without an act viz. an entry c. Pl. 91. Parson de Honiâ—awes case 35. H 6. 24. 1 E 3. 21 E 4. 3 21. E 4. 5. 5. E 60 21. H. 6. 9. Sect. 402. Null laches ser adjudge en un Infant lou discent è eschue durant son nonage 33. E 3. qu. imp 46. But in some other cases Laches shall prejudice an infant as if he present not to a Church within six moneths for the Law respecteth more the priviledge of the Church that the cure be served than the priviledge of Infancy and so the publike repose of the Realm concerning mens Freeholds and inheritance shall be preferred before the priviledge c. in case of a Fine where the time begins in the time of the Ancestor Pl. 372. So non-claime of a villeine of an infant by a year and a day who hath fled into Ancient demesne shall take away the seisure of the infant and if an infant bring not an appeal of the death of his Ancestors within a year and a day he is barred of his appeal for ever for the law respects more liberty and life than the priviledge of infancy and note that Littleton putteth his case that an Infant shall enter upon a discent when a stranger dyeth seised but he put it not so before in the case of the Bastardeigne B. Tenant in taile infeoffes A. in fee A. hath issue within age and dyeth B. abateth and dieth seised the issue of A. being still being within age this discent shall bind the infant for the issue in taile is remitted and the Law doth more respect ancient right in this case than the priviledge of an infant that had but a defeasible estate 11. E. 4. 1. 2. F.N.B. 35. 35 m And it is said if the Kâ—ng dieseised of lands and the land discend to his successor that this shall bind an Infant for that the priviledge of an infant in this case hold not against the King 35. H. 6. 60. Fo. 246. a. Sect. 403. Si bar feme come en droit sa feme ont title droit denter c. Tenant delterre mor. seisie c. These words are generall but are particularly to be understood viz. when the wrong was donâ— to the wife during the Coverture for if a feme sole be seised of lands in fee and is disseised and then taketh husband in this case the husband and wife as in the right of the wife have right to enter yet the dying seised of the disseisor in that case shall take away the entry of the wife after the death of her husband and the reason is as wel for that she her self when she was sâ—â—e might have entred recontinued the pâ—ssession as also it shall be accâ—unted her folly that she would take such a husband which would not enter before the discent 9 H 7. 24. a. 2 E 4 25. 7 E. 4. 7. b. 15. E. 4 Discent 30. Negligentia semper habet infortunium comitem Laches le baron ne turnara la feme c. al prejudice Note a diversity albeit reg No Laches shall be accounted in infants or feme Coverts as is aforesaid for not entry or claime to avoid discents yet Laches shall be accounted in them for no performance of a condition anexed to an estate of land For if a feme be infeoffed either before or after marriage reserving a rent and for default of payment a re-entry Iâ— that case the Laches of the baron shall disherit the wife forever 20. H. 6. 28. b. And so it is of an Infant his Laches for not performing of a condition anexed to a State either made to his Ancestor or himselfe shall bar him of the right of the Land for ever 31. Ass p. 17. 42. E. 31. Pl Com. 55. 10. H. 7. 13. H. 7. 35. H. 6. 41. Pl. 136. b. Pleta lib. 2. ca. 50. If a man make a Feoffment in fee to another reserving a rent and if he pay not the rent within a month that he shal double the rent and the Feofee dyeth his heire within age the Infant payeth not the rent he shall not by this Laches forfeit any thing But otherwise it is of a feme covert and the reason of this diversity is for that the Infant is provided for by the Statute Non current usurae contra aliquem infra aetatem existen c. Stat. Mert. ca 5 But that Statute doth not extend to a condition of a re-entry which the Infant ought to performe c. Sect 405 If an ideot make a Feoffment in fee he shall in pleading never avoid it c. But upon an office found for the King the King shall avoid the Feoffment for the benefit of the Ideot whose custody the Law giveth to the King 3â— H 42 b Abb 5 E 3. â—0 Brit. c 28 fo â—6 25 Ass p 4 35. Ass p 10 32. E 3 scire fac 1â—0 Stanf. pr â—4 Vpon all which books there have been four severall opinions concerning the alienation or other act of a man that is non compos mentis â—c 1. That he may avoid his own act by entry or plea. 2. That he may avoid it by writ and not by plea. 3. That he may avoid it either by plea or by writ and of this opâ—nion is Fitzh in his N B 202. And 4. Littleton here is of opinion that neither by plea not by writ nor otherwise he himselfe shall avoid it but â—is heire in respect his Anc. was non comp c shall avoid it by entry plea or writ for it is a maxime of the Common Lawes that the party shall not disable himselfe Lib. â— fo 126 127. Beverlâ—es case But this holdeth onely in civill causes for in criminal causes as felony c. the act of wrong of a mad man shall not be imputed to him for that in those causes actus non
Case lib. fo 252 b. But if a disseiser had letten severally three acres to three persons for years there the entry upon of the the lessees in name of all the three acres shall recontinue and revest all the three acres in the disseisee for that the disseisee might have had one Assize against the disseisor because he remained Tenant of the Freehold for all the three acres 7 Ass 18. 12 E. 4. 10 36 H 6. 27. 32 Ass p 1 If I infeoffe one of one acre of ground upon Condition and at another time I infeâ—ffe the same man of another acre in the same county upon Condition also and both the Conditions are broken an entry into one acre in the name of both is not sufficient for that I have no right to the land nor action to recover the same but a bare Title But an entry into one part of the land in the name of all the land subject to one Condition is good although the parcels bee several and in severall Towns And so nâ—â—e a diversity between several rights of entry and several Titles of entry by force of a Condition 11 H. 7. 25. Dyer 16 El. 33â— Ennosme de tout c. dont il ad Title d'entry here in a large sence Title of entry is taken for a Right of entry If I bâ—iâ—g an Assize of two acres if I enter into one hanging the Writ albeit it shall revest that onely acre yet the Writ shall abate 5 H. 7 7. 4 E 4 19. 12 E 9 11. a Sect. 418 Nota A man may make a feoffment of lands in another County and make livery of seisin within the view albeit he might peacably enter and make actual livery and so may he shew the Recognitors in an Assize the view of lands in another County But a man cannot make an entry into lands within the view where he may enter without any fear for it is one thing to invest and another to devest 3â— E 3 11 38 Ass 3 fo 253 a If livery of seisin be made of parcel of the Tenements c. in one Town in the name of all c. All the said Tenements c. pass by force of the said livery c. Agr. à minore ad majus if it be so in a Feoffment passing a new right à multo fortiori it is for the restitution of an ancient right as the worthier and more respected in Law which holdeth Affirmative Vide S. 438. Sect. 419 Fear of imprisonment sufficeth to avoid a Bond or a deed for the Law hath a special regard to the safety and liberty of a man But note a diversity between a Claim or an Entry into Land and the Avoidance of an act or deed for fear of Battery 4 E 4 7. 11 H 4 6 8 Ass 25 vide S 434 10 2 cap 49. 13 H â— Dures 2â— If a man hath Title to enter into any Lands or Tenements if he dares not enter c. for doubt of maiming c. if hee goeth and approach as near to the Tenements as he dare for such doubt and by word claim the lands to be his this entry in Law is as forcible iâ— Law as an entry in Deed and upon such an entry in Law an Assiâ—e doth lie as well as upon an entry in Deed and such an entry in Law shall avoid a Warranty c. vide S 378. 11 H 6 5â— But note a diversity here between an entry in Law and an entry in Deed for that aâ—â—ontinual Claim of the disseisee being an entry in Law shall vest the possession and seisin in him for his advantage but not for his disadvantage And therefore if the dissâ—isee bring an Assize and hanging the Assize he make Continual Claim this shall not abate the Assize but he shall recover damages from the beginning but otherwise it is of an entry in Deed. Vide S 442. Pl. Com. 93. Parson of Hony lanes Case Arg. ab autor ' est fortissimum in lege 38 Ass p 13 Sect 421 422. Where a Continual Claim shall devest an estate in any other person in any lands or tenements there he that maketh the Claim ought to enter into the land or some part thereof But where the Claim is to briâ—g him that maketh it into actual possession there a Claim within the view sufficeth as upon a discent the heir having the Freehold in Law may claim land within the view to bring himselfe into actual possession and in that sense is the opinion of Hull and the Court to be intended 9 H 4 5 c. But yet the entry in to some parcel in the name of the residue is the surest way vide S. 177. 11 H 6. accord with Liâ—tleton 51. At the Common Law upon a fine or fâ—â—ll judgement given in a writ of right the party grieved had a yeare and a day to make his claime So the wife or heire hath a yeare and a day to bring an appeale of death c. After judgement given in a â—eaâ—â— action the plâ—iâ—tiffe within the yeare and day may have habere sac sâ—siâ—am and in an action of debt c. a Capias fieri fac or a Lâ—vari facias A protection shall be allowed but for a year and a day and no longer and in many other casâ— Vid. S. 385. 426. 14. H 4. 36. 7. E. 3. 37. Pl. 356. 357. 367 Brit. fo 45. b. Sect. 423 424. 426. Il covient a luy que fist claime c. de faire un cl ' deins chese ' an jour prochein apres chesc ' claime fait durant la vie son adversarie dâ—â—â—uâ—s a quecunque temps que son Adversary mor. Seisee son â—ntry ne ser toll per nul tiel dis cent Brit. fo 209. Dy. 17. Eli. 345. Si disseisor mor. Seiseâ— dein l'an jour c. per que les tenements discend a son heire â—n ceÌ„ case l'enter le disseisee eÌ„ toll car l'an le jour que aâ—droit le lessee en tiel case ne serre pris de temps de title dent a luy accrue mes tautsolment del temps de claime per luy fait en le maner avantd pur cest causeil serre boâ—e pur tiel disseisee pur faire son claâ—me en auxi breve temps queil puissoit apres le disseisin c. This in case of a disseisor is now holpen by the Statute of 37. H 8. ca. 33. For if the disseisor dye seised within five years after the disseisin though there be no cont claim made it â—â—all not take away the entry of the disseisee but after the five years there must be such continuall claime as was at the Common Law But that Statute extended not to any Feoffee or donee of the disseisor immediate or mediate but they â—maine still at the common Law Vi. S. 385. 422. Sect. 428 429. Item sicome eÌ„ dit en les cases mises lou home ad title dent pur caus dun
the vouchee and the Tenant in praecipe after a Feoffment made and so in a contra formam collationis Nota c. If there be Lord and Tenant and the rent is behind for divers years and the Tenant make a Feoffment in fee if the Lord accept the service or rent of the Feoffee due in his time he shall lose the arrerages due in the time of the Feoffor for after such acceptance he shall not avow upon the Feoffor nor upon the Feoffee for the arrerages due c. But in that case if the Feoffor dieth albeit the Lord accept the rent or service by the hand of the Feoffee due in his time he shal not lose the arrerages for now the Law compelleth him to avow upon the Feoffee and that which the Law compelleth him unto shall not prejudice him 4 E. 3. 22. 7. E. 3. 8. 7. E. 4. 27. 29. H. 8. avow Br. 111. l. 3. fo 65. 66. Pennants case 7. H. 4. 14. 2. E. 4. 6 3. 4. H. 6. 46. 47. E. 3. 4. Vide lib. c. Sect. 459. If a man make a lease for years the Remainder for years and the first lessee doth enter a release to him in remainder for years is good to inlarge his estate 22. E. 4. Surr. 6. But if a lease be made to begin at Michaelmas reserving a rent and before the day the lesser release all the right that he hath in the land this cannot enure to inlarge the estate but to extinguish the rent in respect of the privity M. 39. 40 El in Scacc. Sir H. Woodhouse and Sir Will. Paston A man grants the next avoidance of an advowson to two the one of them before the Ch. become void for after it becoms void it is but a thing in action may release to the other for although the grantor cannot release to them to incâ—ease their estate because their interest is future and not in possession yet one of them to extinguish his interest may release to the other in respect of the privity P. 38. El. Qu. imp per Bonnet vers levesque Norwich in Com. Ban. Note that seeing lessee for years hath interesse termini before euery he may grant it over albeit for want of an actuall possession he is not capable of a release to inlarge his estate Pl. Com. 423. But if a man make a release for life the remainder for life and the first lessee dieth a release to him in remainder and his heirs is good before he doth enter to inlarge his estate for that he hath an estate of a freehold in Law in him Sect. 460. and 461. A release to a Tenant at will is good because between them there is a possession with privity but a release to a Tenant at sufferance is void because he hath a possession without privity 21. H 6. 37. 2 E. 4. 6. b. 7. E. 4. 27. 8. 4. 16. 29. H. 6. Rel. 6. Fo. 270. b. But if a man enter into Land of his own wrong and take the profits his words to hold it at the will of the owner cannot qualifie his wrong but he is a disseisor and then the release to him is good or if the owner consent thereunto then he is a Tenant at will and that way also the release is good Temps H 8 Tenant a. vol. l. 5. 2. E. 4. 38. 13. E. 3. Ass 86. But there is a diversity when one cometh to a particular estate in land by the act of the party and when by act in law for if the Gardein hold over he is an Abator because his interest came by acts in Law 10. E. 4. 9. 10. Privity is fourfold First Privies in estate as between the donor and donee lessor and lessee which privity is ever immediate 2. Privies in bloud as the heir to his Ancestor or between Coparcerners c. 3. Privies in representation as executors c. to the Testator 4. Privity in tenure as the Lord and Tenant c. which may be reduced to generall heads Privies in Deed and Privies in Law Old N.B. 117. 137. l. 4. fo 23. Walkers case l. 4. f. 123. c. Vide S. 454. Sect. 462. and 463. VVhen a Feoffment is made to a future use as to the performance of his last Will the Feoffees shall de seised to the use of the Feoffor and of his heirs in the mean time And reason would That seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in praesenti the use of the inheritance shall be to the Feoffor and his heirs as a thing not disposed of 35. H. 6. Subpoena 22. 15. H. 7. 12. b. 37. H. 6. 36. 11. H. 4. 52. 7. H. 4. 22. 1. M. 1 11. Dyer And note a diversity between a Feoffment at lands at this day upon confidence or to the intent to perform his last Will and a Feoffment to the use of such person and persons and of such estate and estates as he shall appoint by his last Will for in the first case the land passeth by the Will and not by the Feoffment for after the Feoffment the feoffor was seised in fee simple as he was before but in latter case the Will pursuing his power is but a direction of the uses of the feoffment and the estates pass by execution of the uses which were raised upon the feoffment but in both cases the feoffees are seised to the use of the feoffor and his heirs in the mean time l. 6. fo 17 18. Sir Edw. Cleres Case fo 271. b. Note uses are raised either by transmutation of the state as by Fine Feoffment Common Recovery c. or out of the state of the owner of the land by bargain and sale c. or by Covenant upon lawfull cosideration Dillon and Frayns case l. 1. c. fo 113. There cannot be two uses in esse of one and the same land But if A. disseise one to the use of B. and doth bargain and sell the land for money to C.C. hath an use and here be two uses of one land but of severall natures the one viz. upon the bargain and sale to be executed by the Statute and the other not But since Littleton wrote all uses are transferred by Act of Parliament into possession 27. H. 8. cap. 10. Sect. 464. Fol. 272. a. By the Statute of 2. H. 5. cap. 3. Stat. 2. it is enacted that in three cases he that passeth in an Enquest ought to have lands tenements to the value of 40. s. viz. 1. Upon Triall of the death of a man 2. In Plea reall between party and party And 3. In Plea personall where the debt or or and the damages in the Declaration amount unto forty Marks 28. H. 8. Dyer fol. 9. 9. H. 5. fol.
of entry and Feoffment as to the land but not having regard to the Seigniory and for that the possession was never actually removed or revested from the disseisor who claimeth under the Lord the Seignory is not revived But if the Lord and the stranger disteise the Tenant and the disseisee release to the stranger there the Seigniory by operation of Law is revived for the whole is vested in the stranger which never claimed under the Lord and in that case if the Lord had died and the land had survived the Seigniory had been revived Sect. 478. Fo. â—79 a. Note that where the Law in one case doth give a man severall remedies and of severall kinds there is a great art and knowledge for him to chuse his aptest remedy 28. E. 3. 98. 9. E. 4 46. 21. E. 4. 55. 41. E. 3. 10. 2. H. 4. 12. 41. E. 3. A man makes a gift in tail the remainder in fee Tenant in tail dieth without issue an estranger intrudes and he in remainder brings a Formedon and recovered by default and makes a Feoffment in fee the intrudor reverse the recovery in a writ of desceit and entry he shall detain the Land for ever and the Feoffee shall not have a writ of right And so likewise if a disseisor die seised and a stranger abate and the disseisee release to him the heir of the disseisor shall enter and detain the land for ever 9. H 7. 24. Dormit aliquando jus moritur nunquam Right may be troden down but never troden out for where it hath been said that a release of right doth somewaies enure by way of extinguishment it is so to be understood either as Littleton doth here in respect of him that makes the release or in respect that in construction of Law it enureth not alone to him to whom it is made but to others also who be estranger to the release which as hath been said is a qulaity of an inheritance extinguished As when the heir of the disseisor is disseised and the disseisor make a Lease for life the remainder in fee if the first disseisee release to the Tenant for life this is said to enure by way of extinguishment for that it shall enure to him in remainder who is a stranger to the release and yet in truth the right is not extinct but doth follow the possession viz. The Tenant for life hath it during his time and he in remainder to him and his heirs and the right of inheritance is in him in the remainder 14 H. 8. 6. b. Sect. 479. and 480. Here Littleton putteth a diversity between releases which enure by way of extinguishment against all persons and whereof all persons may take advantage and release which in respect of some persons enure by way of extinguishment and of other persons by way of mitter le droit Or between releases which indeed enure by extinguishment for that he to whom the release is made cannot have the thing released and releases which having some quality of such release are said to enure by way of extinguishment but in troth do not for that he to whom the release is made may take the thing released 11. H. 7. 25. 37. H. 6. barr 39. 38. E. 3. 10. And here Littleton putteth cases where releases do absolutely enure by extinguishment as 1. Of the Lord and Tenant for the Tenant cannot have service to be taken of himself nor one man can be both Lord and Tenant 2. A man cannot have land and a rent issuing out of the same land 3. A man cannot have land and a common of pasture issuing out of the same land Fo. 280. a. The mesne being a feme enter-marry with the Tenant peravaile if the Lord release to the feme the Seigniory only is extinct but if the release to the husband both Seigniory and mesnalty are extinct and in this case if the Lord release to the husband and wife it is a question how the release shall enure but it is no question but that a release may be made to a measualty or a Seigniory suspended in part of the estate 19. H. 6. 19. The Lord may release his Seigniory to the tenant of the land for life or in tail sic de coeteris But so cannot one release a right or an action c. 13. E. 3. Extinguishment Br. 45. and voucher F. 120. Note that by the release of all his right in the Seigniory or the Land the whole Seigniory is extinct without any words of inheritance 12. H. 4. Release 21. 18. E. 2. ibid. 5. 26. H. 8. 57. 41. Ass 6. If there be Lord and Tenant by fealty and rent the Lord granteth the Seigniory for years and the Tenant atturn the Lord release his Seigniory to the Tenant for years and to the Tenant of the land generally the whole Seigniory is extinct and the state of the lessee also But if the release had been to them and their heirs then the lessee had had the inheritance of the one moity and the other moity had been extinct Vide lib. c. Sect. 481 482. Here it appeareth by Littleton That if a man make a lease for life the remainder in fee and Tenant for life suffer a recovery by default that he in remainder should not have a Formedon by the common Law for Littleton saith that he had not any remedy before the Statute Neither is there any such Writ in that case in the Register albeit in some books mention is made of such a writ W. 2. ca. 5. 34. E. 3. Formedon 31. 11. E. 3. ibi 31. 8. E. 3. 59. F. N. B. 117. b. 7. H. 7. 13. Mes si celuy en le remainder ust entry sur le Tenant pur vie luy disseisist apres tenant entry sur luy apres tenant pur terme de vie per tiel recovery perde per default mor. ore celuy en remainder bien poit aver breve de droit envers celuy que recovera pur ceo que le mise Seigniory joine solement sur le meer droit c. Here a disseisin gotten by wrong and defeated by the entry of him that right hath is sufficient to maintain a writ of right against the recoverer in this case for albeit the seisin is defeated between the lessee for life and him in the remainder yet having regard to the recoveror who is a meer stranges and hath no title it is sufficient against him But otherwise it is against the party himself that defeateth the seisin and the law is propense to give remedy to him that right hath 7. E. 3. 62. 38. E. 3. 37. Jur. utr 1. Lands are letten to A. for life the remainder to B. for life the remainder to the right heirs of the heirs of A. A. dieth B. enters and dieth a stranger intrudeth the heir of A. shall have a writ of right of the seisin which A. had as Tenant for life Fo. 281. a. If Lands be given
debet contra proferentem 3 H. 7. 3. 29 Ass 10. 14 H. 4. 4. b. lib. 3. fo 59. Linc. Coll. cafe Vide c. fo 303. b. Expedit Reipublicae ut fit finis litium 22 E. 4. 40. All necessary circumstances implyed by Law in the plea need not to be expressed as in the plea of a feoffment of a Mannor livery and attornement are implyed 40 E. 3. 40. 43. 46. 14 H. 4. 15. 12 E. 4. 1. 7 H. 7. 3. A man is bound to performe all the Covenants in an Indenture if all the Covenants be in the affirmative he may generally plead performance of all but if any in the negative to so many he must plead specially for a negative cannot be performed and to the rest generally 2 H. 7. 15. 4 H. 7. 12. 26 H. 8. 5. b. So if any be in the disjunctive he must shew which of them hath performed So if any are to be done of Record he must shew that specially and cannot involve that in generall pleading l. 8. 133. Turners case and 120. Benhams case l. 9. 25. 61. lib. 10. 100. The Count or declaration is an exposition of the Writ and addeth time place and other necessary circumstances that the same may be triable and any imperfection in the Count doth abate the Writ Vide bone matter concernant pleading Fo. 303. A departure in pleading is said to be when the second plea containeth matter not pursuant to his former and which fortifieth not the same As if in Ass the Tenant plead a discent from his Father and giveth a colour the demandant intituleth himselfe by a feoffment from the Tenant himselfe the plaintiffe cannot say that the feoffment was upon condition and to shew the condition broken for that should be a cleare departure from his barre because it containeth matter subsequent but in an Ass if the Tenant plead in barre that I.S. was seised and infeoffed him c. and the plaintiffe sheweth that he himselfe was seised in fee untill I.S. disseised who infeoffed the Tenant and he re-entred the defendant may plead a release of the plaintiffe to I. S. for this doth fortifie the barre Pl. Com. 105. 1 Mar. Dy. 95. 28. H. 8. ib. 31. 6. H. 7. 8. 3 H. 6. departure 2. Where the Tenant or defendant may plead a generall issue there upon the generall issue pleaded he may give in evidence as many distinct matters to barre the action or right of the demandant or plantiffe as he can A speciall verdict may continue double or treble matter and therefore in those cases the Tenant or defendant may either make choice of one matter and so plead it to barre the demandant or plantiffe or to plead the generall issue and to take advantage of all or he may plead to part one of the Pleas in barre and to another part another plea and his conclusion of his plea shall avoid doublenes and hereby neither the Court nor the Jury is so much inveigled as if one plea should contain divers distinct matters And if the Tenant make choice of one plea in barre and that be found against him yet he may resort to an action of an higher nature and take advantage of any other matter And the law in this point is by them that understand not the reason thereof misliked saying nemo prohibetur pluribus defensionibus uti 17 E. 3. 73. 39 H. 6. 27. Apiees juris non sunt jura and yet in law praestat cautela quam medela Sect. 535 536 537 538. Fo. 305. a.b. A Tenure may be abridged by a confirmation but not a rent charge or common But a man may release part of his rent charge or common c. The Lord by his confirmation may diminish and abridge the services but to reserve upon the confirmatiō new services he cannot so long as the former state in the Tenancy continueth and as where confirmation doth inlarge an estate in Land there ought to be privity so reg where a confirmation doth abridge services there ought to be privity 28 E. 3. 92 93. 26. Ass 37. 6. El. Dy. 230 b. 7 E. 4. 25. a. 21 E. 4. 62. per Brian 10 E. 3. avowry 100. Also there is required privity when the Lord by his release abridgeth the services of his Tenant And therefore the Lord paramount cannot release to the Tenant paravaile saving to him part of his services but the saving in that case is void 4 E. 3. 19. 9. E 3. 1. 12 E. 4. 11. 16. E. 3. Fines 4. If a man hold of me by Knights service rent suit c. and I release to him all my right in the Seigniory excepting the Tenure by Knights service or confirm his estate to hold of me by Knights service onely for all maner of Services Exactions and Demands yet shall the Lord have Ward Marriage Relief Ayd pur file marier pur faire fits Chivaler for these be incidents to the Tenure that remain But it is holden That if a man make a gift in Tail by Deed reserving 2. s. rent a luy ses heires pro omnibus omnimodis servitiis exactionibus secularibus cunctis demandis If the Donee dye his heire of full age the Donor shall have no reliefe because relief lieth in demand 13 R. 2. Avowry 29. Mota Fitzh Confirm Pl. 21. Sect. 541. Fol. 306. b. A man may be put out of possession of the custody of his Ward but not of his Villain in gross 45 E. 3. 10. 1 H. 6. c. 5. Reg. 102. Also of things that are in grant as Rents Commons c. it is at the election of the party whether he will be desseised of them or no Brook tit Property 28. Non valet confirmatio nisi ille qui confirmat fit in possessione rei vel juris unde fieri debet confirmatio eodem modo nisi ille cui confirmatio fit fit in possessione Bract. l. 2. 59. b. 9 E. 4. 38. Dyer 10 El. Growches Case But of a Villain Regardant to a Manor the Lord may be put out of possession for by putting him out of possession of the Manor which is the principal he may likewise be put out of possession of the Villain Regardant which is but accessory and by the recovery of the Manor the Villain is recovered But if another doth take away my Villain in gross or Regardant he gaineth no possession of him By the grant of the Manor without saying Cum pertinentiis the Villain Regardant Advowson appendant and the like do passe for if the desseisor shall gain them as incidents to the Manor whose estate is wrongful A multo fortiori the feoffee who commeth to his estate by lawful Conveyance shall have them as incidents But where the entry of the disseisee is lawful hee may seise the Villain Regardant or present to the Advowson c. before he enter into the Manor otherwise it is where his entry is not lawful 9 E. 4. 38. 3 H. 4. 15. 18 E. 3.
H. 6. 33. 48 E. 3. 23. But now the Statute of 4 H. 7. 32 H. 8. having given a further strength to Fines to barre the issue in Taile the reason of the Common Law being taken away tâ—e Tenant in this case shall be compelled to attorn Windams Case ubi suprà Sect. 576. 577. fol. 319. a. Where a lease is made for life saving the reversion to the lessor if the lessor disseise the lessee and make a feoffment in fee if the Tenant for life enter and make Wast the feoffee shall have a Writt of Wast without any other Attornment for the lessee shall not be misconusant of the Feoffments that were made of and upon the same land And the reason of the Attornment is because the whole fee simple pass by the feoffment and the lessee by his Regress leaveth the reversion in the feoffee which is a good attornment The same Law it is of a Tenant by statute merchant or Staple or Elegit and so it is of a lease for yeares 46 E. 3. 30. b. 2 H. 5. 4. 5 H. 5. 12. Brasbritches case P. 15 Eliz. Some doe hold that in that case if the lessee for life doe recover in assize this is no Attornment because he comes to it by course of Law and not by his voluntary act And yet in that case as in the case of the Fine the state of the reversion is in the feoffee But others doe hold it all one in case of a recovery and a regres 18 E. 3. 48. b. lib. 6. fol. 60. b. Sir Moyle Fiuches Case If the lessor disseise Tenant for life or ouste Tenant for years and make a feoffment in fee by this the rent reserved upon the lease for life or years is not extinguished but by the regress of the lessee the rent is revived because it is incident to the reversion But if a man be seised of a rent in fee and disseise the Tenant of the land and make a feoffment in fee the Tenant re-enter the rent is not revived And so note a diversity between a rent incident to a reversion and a rent not incident to a reversion 9 H. 6. 16. Dean of Pauls Case 20 Eliz. If a man make a lease for life and then grant the reversion for life and the lessee attorn and after the lessor disseise the lessee for life and make a feoffment in fee and the lessee re-enter this shall leave a reversion in the grantee for life and another reversion in the feoffee and yet this is no Attornment in Law of the grantee for life because he doth no act nor assent to any which might amount to an Attonement in Law Et res inter alios acta alteri nocere non debet Neither hath the grantee for life the land in possession So as he may well be misconusant of the feoffment made upon the land and so out of the reason of Littleton But yet the reversion in fee doth pass to the feoffee Sect. 578 579. fo 319. b. 320. a. Where the Ancestor taketh an estate of Freehold and after a remainder is limited to his right heires the fee simple vesteth in himselfe as well as if it had been limited to him and his heirs for his right heirs are in this case words of limitation of estate and not a Purchase Otherwise it is where the Ancestor taketh but an estate for yeares As if a lease for years be made to A. the remainder to B. in Tail the remainder to the right heirs of A. there the remainder vesteth not in A. but the right heirs shall take by purchase if A. dye during the estate Tail for as the Ancestor and the heir are Correlativa of Inheritances so are the Testator and Executor and the Intestate and Administrator of Chattels Quod vanum inutile est lex non requirit Vide Sect. 194. 273. fo 320. a. The Conusee of a Fine before Attornment cannot distrain because an Avowry is in lieu of an action and thereunto privity is requisite So likewise and for the same cause he can have no action of Waste nor Writ of Entry ad Com. legem or in consimili casu or in casu proviso Writ of Customs and Services nor Writ of Ward c. 8 E 3. 44. 34 H. 6. 7. 12 E. 4. 4. 40 E. 3. 7. 5 H. 5. 12. 3 E. 2. Droit 33. But if a man make a lease for years and grant the reversion by Fine if the lessee be ousted and the Conuse disseised the Conusee without Attornment shall maintain an Assize for this Writ is maintained against a stranger where there needeth no privity and such things as the Lord may seise or enter into without suing any action there the Conusee before any Attornment may take benefit thereof as to seise a Ward or Heriot or to enter into the Lands or Tenements of a Ward or escheated to him or to enter for an alienation of Tenant for life or years or of Tenant by Statute Merchant Staple or Elegit to his disherison Sect. 580 581 582. Fo. 320. a.b. It is said in our Books that if Tenant for life have a priviledge not to be impeachable of Waste or any other priviledge if he doth attorn without saving his priviledge that he hath lost it which is to be understood where he attorneth in a Quid juris clamat brought by the Conusee of a Fine for that the Writ supposeth him to be but a bare Tenant for life and by his generall Attornment according to the Writ he is barred for ever to claim any priviledge but a bare estate for life But if upon a grant of the reversion by Deed the Tenant for life doth attorn he loseth no priviledge for there can be no conclusion or barre by the Attornment in palis and so it is of an Attornment in Law As if the lessor disseise the lessee for life and make a Feoffment in fee and the lessee re enter c. 43 E. 3. 5. 45 E. 3. 6. 39 H. 6. 25. F.N. B. 136. b. But in the Quid juris clamat if the Plantiff be within age so as he cannot acknowledge the priviledge the Tenant shall not be compelled to attorn untill his full age when he may acknowledge it 43 E. 3. 5. But otherwise it is as some hold if a Quid juris clamat be brought by Baron and feme the priviledge shall be entered into the Roll notwithstanding she is a feme covert 45 E. 3. 11. a. Vet. N. B. in per que servitia 39 H. 6. 25. 18 E. 4. 7. And in a per que servitia brought by the Conusee of the Mesne the Tenant may shew that he held by Homage Auncestrel and saving to him his Warrant and Acquitall he is ready to attorn So if the Tenant hath any other Acquittall and the Mesne levy a Fine to one for life the remainder to another in fee the Tenant for life bringeth a per que servit and the Tenant is ready to
wife notwithstanding the alienation of her husband Dyer 4 5. P. M. 146. 3 El. Dyer 191. l. 8. f. 71 72. Greveleys Case If the husband levy a Fine with Proclamations and dye the wife must enter or avoid the estate of the Conusee within five years or else she is barred for ever by the Statute of 4 H 7. for the Statute of 32 H 8. doth help the Discontinuancy but not the barre and the Statute speaketh of a Fine and not of a Fine with Proclamations 6 E 6. Dyer 72. b. 4 H 7. c. 24. Feme Tenant in Tail taketh husband the husband maketh a feoffment in fee the wife before entry dyeth without issue he in the reversion or remainder may enter For 1. The reversion or remainder cannot be discontinued in this case because the estate Tail is not discontinued 2. The words of the Statute be Shall not be prejudiciall c. to the wife or her heirs or such as shall have Right Title or Interrest by the death of such wife but the same wife and her heirs c. shall or lawfully may enter c. By which words the entry of him in the reversion or remainder in that case is preserved The husband is Tenant in Tail the remainder to the wife in Tail the husband make a feoffment in fee by this the husband by the Common Law did only discontinue his own Estate taile but his wifes remainder but at this day after the death of the husband without issue the wife may enter by the said action of 32 H. 8. If the husband hath issue and maketh a feoffment of his wifes land and the wife dyeth the heire of the wife shall not enter during the husbands life neither by the Common law nor by the Statute 8 E. 2 tit cui in vita 26 34. E. 1. ibid. 30. 10 E. 3. 12. Dy. 21. Eliz. 363. Sect. 565. Fo. 326. b. By the Statute of 11 H. 7. ca. 20. If the woman hath any Estate in tail joyntly with her husband or only to her self or to her use in any lands or haereditaments of the inheritance or purchase of her husband or given to the husband and wife in taile by any of the Ancestors of the husband or by any other person seised to the use of the husband or his Ancestors and shall hereafter being sole or with any other after taken husband discontinue c. the same every such discontinuance shall be void and that it shall be lawfull for every person to whom the interest title or inheritance after the decease of the said woman should appertaine to enter c. So as if such a feme Tenant in taile do make any discontinuance in fee in taile or for life although it be with warranty yet this doth not take away the entry after her death either of the issue or of him in reversion or remainder Vide Sect. 697. l. 3. fo 50 51. Sir George Brownes case and l. 3. f. 60 c. Lin. Coll. case P. 1. f. 176. Mildmayes case Dy. 3. 4. P.M. 146. 8 El. Dy. 448 15 El. 340. 19 El. 354. 20 El. 362. 27 H. 8. 23. l. 5. f. 79. Fitz. case and Grevelys case l. 8. fo 71 c. If Lands were intailed to a man and his wife and to the heirs of their two bodies and the husband had made a feoffment in fee and dyed and then the wife dyed this had been a discontinuance at the Common Law for the title of the issue is as heir of both their bodies and not as heir to any one of them and his entry must ensue his title or action But this is remedied by the Statute of 32 H. 8. Tenant in taile shall have a quod permittat 4 E. 3. 38. 43 E. 3. 25. 4 E. 4. 25. F. N.B. 124. And he shall have a writ of Customes and services le debet solet but shall not have it in the debt only 2 E. 2. droit 28. So he shall have a Secta ad molendum in le debet solet but not in the debet tantum F.N.B. 123. Tenant in taile shall have a writ of entry in consimili casu an Admesurement a nativo habendo cessavit escheat waste c. 21 E. 3. 11. 5 E. 3. 23. 11 H. 4. 49. But tenant in taile shall not have a writ of right sur disclaimer nor a quo jure nor a ne injuste vexes nor a nuper obiit or Rationabile parte nor a Mordanc nor a sur cui in vita for these and the like none but Tenant in fee shall have and the highest writ that a Tenant in taile can have is a Formedon 2 E. 3. droit 28. 13 H. 7. 24. 5 E. 4. 2. 20 E. 3. Avowry 13â— F.N.B. 10. 46 E. 3. cui in vita 33. Sect. 596 597. Fo. 327. b. It is provided by the Statues of W. 2. c. 1 De donis cond quod non habeant illi quibus tenementum sic fuerit datum potestatem alienandi c. So as these words non habent potestatem alien do work these effects viz. as to lands that a feoffment barreth not the issue of his action but worketh a discontinuance to barre him of his entry as to rents or any thing in esse that lye in grant that the said words do his power â—o make any discontinuance as to rents c. newly created that they take away his power to make them to continue longer than during his life 18 E. 3. 12. 24 E. 3. 28. 36 Ass 8. 5 E. 4. 3. 4 H. 7. 17. Pl. Com. Smith and Stapletons case But there is a diversity between alienation working a discontinuance of an estate which taketh away an entry and an alienation working divesting or displacing of estates which take away no entry As if there be Tenant for life the remainder to A. in taile the remainder to B. in fee if Tenant for life doth alien in fee this doth divest and displace the remainders but worketh no discontinuance and so note that to every discontinuance there is necessary a divesting or displacing the estate and turning the same to a right for if it be not turned to a right they that have the Estate cannot be driven to an action therefore such inheritances as lye in grant cannot by grant be discontinued because such a grant divests no Estate but passeth only that which he may lawfully grant and so the Estate it self doth descend revert or remaine as shall be said hereafter A. maketh a gift in tail to B. who maketh a gift in tail to C. C. maketh a feoffment in fee and dyeth without issue B. hath issue and dyeth the issue of B. shall enter for albeit the feoffment of C. did discontinue in reversion of the fee simple which B had gained upon the estate tail made to C. yet it could not discontinue the right of entaile which B. had which was discontinued before and therefore when C. died without issue
then did the discontinuance of the Estate taile of B. which passed by his livery cease and consequently the entry of the issue of B. lawfull * Also nate that a discontinuance made by the husband did take away the entry only of the wife and her heirs by the common Law and not of any other which claimed by title paramount above the discontinuance As if lands had beene given the husband and wife and to a third person and to their heires and the husband had made a feoffment in fee this had been a discontinuance of the one moity and a disseisin of the other moity if the husband had dyed the survivor should have entred in the whole for he claimed not under the discontinuance but by title paramount from the first feoffor and seeing the right by law doth survive the Law doth give him a remedy to take advantage thereof by entry for other remedy for that moity he could not have Sect. 600. Fo. 328 a. It is a Rule in Law that the disseisee or any other that hath a right onely by his release or confirmation cannot make any discontinuance because nothing can passe thereby but that which may lawfully passe 9 E. 4. 18. 12 E. 4. 11. 5 H. 4. 8. 21 H. 6. 58. By a feoffment the freehold doth passe by open livery to the feoffee and by a Release a bare right Sic nota diversit Sect. 601 602 603. fo 328. b. 329. a. A warranty being added to a release or confirmation and descending upon him that right hath to the lands maketh a discontinuance otherwise it is out of the reason of the Law and worketh no discontinuance if the warranty discend upon another If Tenant in taile release to his disseisor and bind him and his heires to warranty this is a discontinuance For if the issue in taile should enter in this case the warranty which is so much favoured in Law should be destroyed and therefore to the end that if Assets in fee simple do descend he to whom the release is made may plead the same and barre the demandant by which meanes all rights and advantages are saved Sect. 604. When a Bishop c. make an Estate Lease grant or rent-charge warranty or any other act which may tend to the diminution of the revenues of the Bishoprick c. which should maintaine the successor there the privation or translation of the Bishop c. is all one with his death But Where the Bishop is patron and ordinary and confirmeth a Lease made by the parson without the Deane and Chapter and after the Parson dyeth and the Bishop collateth another and then is translated yet his confirmation remaineth good for the revenues that are to maintaine the successor are not thereby diminished and so it is in case of resignation 29 E. 3. 16. ibid. garr 99. cl contr Vide Sect. 608 609 610 611 612 613 Fo. 330 331. a. Tiels choses queux passunt en asc ' cases de tenant en le taile tantsolement per voy de grant ou per confirmation ou per releaserien poit passe pur faire estate a celuy a que tiel grant ou confirmation ou release est fait forsque ceo que le tenant en taile poit droitulerment faire ceo ne forsque pur terme de la vie c. Hereby it appeareth that a feoffment in fee albeit it be by parol is of greater operation and estimation in Law then a grant of a reversion by Deed though it be inrolled and Attornment of the lessee for yeares of a release or a confirmation by Deed. Also having regatd to the issue in taile and to them in reversion or remainder Tenant in taile cannot lawfully make a greater Estate than for terme of his life But in regard of himselfe a release or grant made by him leaveth no reversion in him but put the same in Abeiance so as after such release or grant made he shall not have any action of wast and he shall not enter for a forfeiture c. 13 H. 10. a. Br. Release 95. Sect. 614. Fo. 331. b. The Feoffee of Tenant in taile hath no rightfull Estate having respect to two persons the one is the donor whose reversion is divested and displaced and the other is to the issue in taile who is driven to his action to recover his right Deforciare signifieth to withold Lands or Tenements from the right owner in which case either the entry of the right owner is taken away or the deforceor holdeth it so fast as the right owner is driven to his reall praecipe wherein it is said unde A. eum juste deforceat or the deforceor so disturbeth the right owner as he cannot injoy his owne Brac. l. 4. fo 238. Fleta l. 5. ca. 11. There is a writ called a Quod ei deform and lyeth where Tenant in taile or tenant for life loseth by default by the Staute he shall have a Quod ei deforc against the recoveror and yet he cometh in by course of Law Westm 2. ca. 4. Sect. 615 616 617 618. Fo. 332. a.b. An Advowson is a thing that lyeth in grant and passeth not by livery of seisin 5 E. 3. 58. 21 E. 3 37 38. 43 E. 3. 1. b. 11 H. 6. 4. 5 H. 7. 37. 18 H. 8. 16. El. Dy. 323. b. If a remainder or a rent service or a rent charge or an Advowson or a common or any other inheritance that lyeth in grant be granted by Tenant in taile it is no discontinuance Brac. l. 2. f. 3. f. 266. 318. Brit. fo 187. Mir. ca. 2. S. 17. Fle. l. 3. c. 15. For that it is a maxim in Law That a grant by Deed of such things as do ly in grant and not in livery of seisin do worke no discontinuance But the particulars reason is for that of such things the grant or Tenant in taile worketh no wrong either to the issue in taile or to him in reversion or remaindet for nothing doth passe but onely during the life of Tenant in taile which is lawfull and every discontinuance worketh a wrong 6 E. 3. 56. 4 H. 7. 17. 21 H. 7. 42. 21 H 6. 52. 53. 5 E 4. 3. 21 E. 4. 5. â—2 R. 2. discontinuance 35. Br. 19 E. 3. Br. 468. Pl. Com 435. 18 Ass p. 2. If Tenant in taile of a rent service c. or of a reversion or remainder in taile c. grant the same in fee with warranty and leaveth assets in fee simple and dyeth this is neither bar nor discontinuance to the issue in taile but he may distreine for the rent or service or enter into the Land after the decease of Tenant for life But if the issue bringeth a Formedon in the discending and admitting himself out of possession then he shall be barred by the warranty and Assets 33. E. 3. from 47. 13 H. 7. 10. 36. Ass 8. 4 H. 7. 17. Tenant in taile of a rent disseises the Tenant of the
which inheritances put in Abeyance are by some called Haereditates jacentes Bract. l. 1. c. 2. and some say Que le fee est en baiaunce Brit. fo 249. Sect. 641. Fol 343. b. Principium est quasi primum caput from which many cases have their original or beginning which is so strong as it suffereth no contradiction Contra negantem principia non est disputandum 11 H. 4. 9. Note a diversity when the right of fee simple is perpetually by Judgement of Law in Abeyance without any expectation to come in esse there he hath the qualified fee Concurrent ' his quae in jure requiruntur may charge or alien it as in the case of Parson Vicar Prebend c. But where the fee simple is in Abeyance and by possibility may every hour come in esse As if a lease for life be made the remainder to the right heirs of I.S. the fee simple cannot be charged till I.S. be dead Lands intailed may be charged in fee for the estate Tail may be cut off by Fine or Recovery Also the estate Tail may continue and yet Tenant in tail may lawfully charge the Land and binde the issue in Tail 44 E. 3. 21 22. As if a disseisor make a gift in Tail and the Donee in consideration of a Release by the disseisee of all his right to the Donee grant a rent charge to the disseisee and his heirs proportionable to the value of his right this shall binde the issue in Tail Vide Sect. 1. Bridgewaters Case 59. fol. 48. b. Which Lands by the Rule of Littleton may be charged and therefore if the owner of those 13 acres grant a rent charge out of those 13 acres generally lying in the Meadow of eighty without mentioning where they lie particularly there as the state in the land removes the charge removes also If the Parson dye and in time of Vacation the Patron of the assent of the Ordinary and the Patron and Ordinary grant an Annuity or rent charge out of the Gleab this shall binde the succeeding Parsons for ever A Church Parochial may be Donative and exempt from all Ordinary Jurisdicton and the Incumbent may resign to the Patron and not to the Ordinary neither can the Ordinary visit but the Patron by Commissioners to be appointed by him And by Littletons Rule The Patron and Incumbent may charge the Gleab and albeit it be Donative by a Lay-man yet merè Laicus is not capable of it but an able Clerk infra sacros ordines is for albeit he come in by Lay Donation and not by admission or institution yet his function is spiritual Vide 133 530. 11 E. 3. Jur. utr 3. 8. Ass 29. 31. 13 Ass 2. As the King may create Donatives exempt from the visitation of the Ordinary so he may by his Charter license any subject to found such a Church or Chappel and to ordain that it shall be Donative and not Presentable and to be visited by the Founder and not by the Ordinary And thus began Donatives in England whereof common persons were Patrons F.N.B. 35 E. 4. 2. A.B. Dyer 10. El. f. 273. 14 El. cap. 5. 2 H. 5. cap. 1. Ordinarius is he that hath ordinary Jurisdiction in causes Ecclesiastical immediate to the King and his Courts of Common Law for the better execution of Justice as the Bishop c. Regularly according to the Ecclesiastical Laws allowed by the Laws of this Realm viz. which are not against the Common Law whereof the Kings Prerogative is a principal part nor against the Statute and Customs of the Realm The Ordinary and other Ecclesiastical Judges do proceed in Causes within their Conusance and this Jurisdiction was so bounded by the ancient Common Laws of the Realm and so declared by Act of Parliament 25 H. 8. c. 19. 33 H. 6. 34. 32 H. 6. 28. Note that institution is a good plenarty against a Common person but not against the King unless he be inducted and that is the cause that Regularly plenarty shall be tryed by the Bishop because the Church is full by institution which is a spiritual act but void or not void shall be tryed by the Common Law 22 H. 6. 27. 38 E. 3. 4. At the Common Law if an usurpation had been had upon an Infant or feme Covert having an Advowson by discent or upon Tenant for life c. the Infant feme Covert and he in the reversion were driven to their Writ of Right of Advowson for at the Common Law if the Church were once full the Incumbent could not be removed and plenarty was a good plea in a Qu. imp or Assize of dar Presentment and the reason of this was to the intent that the Incumbent might quickly intend and apply himself to his spiritual charge And secondly the Law intended That the Bishop that had Cure of Soules within his Diocesse would admit and institute an able man c. 6 E. 3. 28. 39. 52. If the King do present to a Church and his Clerk is admitted and instituted yet before induction the King may repeal and revoke his Presentation But Regularly no man can be put out of possession of his Advowson but by admission and institution upon an usurpation by a Presentation to the Church Cum aliquis jus praesentandi non habens praesentaverit c. and not by collation of the Bishop 45 E. 3. 35. 38 E. 3 4. 13 El. Dyer 292. 18 El. Dyer 348. 14. E. 4. 2. 7 H. 4. 32. fol. 344. b. Nota that an usurpation upon a presentation shall not only put out of possession him that hath right of presentation but right of Collation also Therefore at this day the Incumbent shall be removed by a Qu. imp or Assize of dar ' presentment if there be not a plenarry by six moneths before the Teste of the Writ but then the Incumbent must be named in the Writ or else he shall never be removed 9 H. 6. 32. 56. 19 H. 6. 68. At the Common Law if hanging the Qu. imp against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Qu. imp against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another in this if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop and remove the Incumbent that came in pendente lite by usurpation for pendentelite nihil innovetur and therefore at the common Law it was good policy to bring the Qu. imp against the Bishop as speedily as might be So it is good policy at this day to name the Bishop in the Qu. imp for then he shall not present by lapse 30 E. 3. Qu. imp Statham 5 E. 4. 115. 9 E. 4. 30. Sect. 649 650. fol. 345. a. If Tenant in Tail of lands holden of the King be attainted of Felony and the King after Office seiseth the same the estate Tail is
if Tenant in tail make a Lease for life whereby he gaineth a new reversion in fee so long as Tenant for life liveth and he granted a rent-charge out of the reversion and after Tenant for life dyeth whereby the grantor becometh Tenant in Tail again and the reversion in fee defeated yet because the grantor had a right of the intail in him cloathed with a defeasible fee simple the rent charge remaineth good against him but not against his issue which diversity is observable 11 H. 7. 21. Edriches case If the heir apparent of the disseisee disseise the disseisor and grant a rent charge and then the disseisee dieth the granter shall hold it discharged for there a new right of entry doth descend unto him and therefore he is remitted So if the Father disseise the grandfather a grant and rent charge and dyeth now is the entry of the grandfather taken away if after the grandfathet dyeth the Sonne is remitted So as where our authour putteth his example of a fee taile it holdeth also in case of fee simple and Littleton que la terre est discharge del rent c. But the whole grant is not thereby avoided for the grantee shall have notwithstanding a writ of annuity and charge the person of the grantor Lib. 2. fo 36. b. Wards case Also Littleton here puts his case of things granted out of the Land But if the issue at full age by Deed Indentâ—â—â— or Deed Poll make a Lease for years of the land and after by the death of tenant in tail he is remitted It is holden that he shall not avoid the Lease because it is made of the Land it self and the Land is become by the Lease in another then it is in the case of a grant of a rent charge 33 H. 8. Dy. 51. b. and vide Sect. 289. * Sect. 661. Fo. 349. b. Regularly a man shall not remitted to a right remediesse for the which he can have no action l. 3. f. 3. Marquesse of Winchesters case Neither an action without a right nor a right without an action can make a remittance As if Tenant in tail suffer a common recovery in which there is errour and after Tenant in tail disseise the recoveror and dyeth here the issue in tail hath an action viz. a writ of error but as long as the Recovery remaineth in force he hath no â—ight and therefore in that case there is no remittance If B. purchase an Advowson and suffer an usurpation and six â—oneths to passe and after the usurper grant the Advowson to B. and his heirs B. dieth his heir is not remitted because his right to the Advowson was remedilesse a right without an action Tenant in tail of a Manor whereunto an Advowson is appendant maketh a discontinuance the disconâ—â—ee grants the Advowson to Tenant in tail and his heirs Tenant in tayl dyeth the issue is not remitted to the Advowson because the issue had no action to recover the Advowson before he recovered the Manour whereunto the Advowson was Appendant 5 H. 7. 35. And so it is of all other inheritance regardant appendant or appurtenant a man shall be remitted to any of them before he recontinueth the Manor c. whereunto they are regardant appendant c. Car nul ne poit claimer droit en les appurtenances ne en les accessories que nul droit ad en le principall Brit. fo 126. But on the other side if a man be remitted to the principal he shall also be remitted to the appendant or accessory albeit it were severed by the discontinuee or other wrong doer and therefore if Tenant in tail be of a Manor whereunto an Advowson is appendant and infeoffeth A of the Manor with the appurtenances A. re-enfeoffeth the Tenant in tail saving to himself the Advowson Tenant in tail dieth his issue being remitted to the Manor is consequently remitted to the Advowson although at that time it was severed from the Manor So it is in the same case if Tenant in tail had been disseised and the disseisor suffer an usurpation if the disseisee enter into the Manor he is also remitted to the Advowson 8 R. 2. Qu. imp 199. 2 H. 4. 18. 14 H. 6. 15 16. FNB. 25. b. 36. f. 33 H. 8. Dy. 48. b. 24 E. 3. discontinuance 16. Sect. 663 664. Fo. 350. If the discontinuee after the death of Tenant in tail make a charter of feoffment to the issue in tail being within age who hath right and to a stranger in fee and make livery to the infant in name of both the issue is not remitted to the whole but to the half for first he taketh the fee-simple and after the remittance is wrought by operation of Law and therefore can remit him but to a moity Vide Sect. 288. Si Tenant in tale infeoffe sou heire apparent l'heire evant de plein age al temps de feoffment puis le Tenant en taile mor ceo nest remitter al heire pur ceo que il fuit sa folly que il evant de plein age voile prender tiel feoffment c. By this feoffment albeit the heir apparent hath some benefit in the life of his Ancestor yet if he thereby besides his own subject during his life to all charges and incumbrances made or suffered by his Ancestors 40. E. 3. 44. 18. E. 4. 25. Sect. 665. Fo. 351. a. Nota that the estate which doth in this case work the Remitter could not have continuance after the decease of the wife and so on the other side if the husband make a discontinuance and take back an estate to him and his wife during the life of the husband this is a Remitter to the wife presently albeit the estate is not by the limitation to have continued after the decease of the husband which case is proved by the reason of the case which our Author here putteth If a man take to wife a woman seised in fee he gaineth by the intermarriage an estate of freehold in her right which estate is sufficient to work a Remitter and yet the estate which the husband gaineth depending upon uncertainty and consisteth in privity 13. H. 4. 6. 18. E. 4. 5. 11. H. 7. 19. 10. H. 6. 11. 7. H. 6. 9. b. For if the wife be attainted of felony the Lord by escheat shall enter and put out the husband otherwise it is if the Felony be committed after issue had 4. Ass p. 4. 4. E. 3. Ass 166. vide S. 58. Also if the husband be attainted of felony the King gaineth no freehold but a pernancy of the profits during the Coverture and the freehold remaineth in the wife 2. If she were possessed of a terme for yeers yet he is possessed in her right but he hath power to dispose thereof by grant or demise and if he be outlawed or attainted they are gifts in Law Pl. Cam. 260. b. Dame Hales case 50. Ass 5. 21. E. 4. 35. 7. E. 4. 6.
331. 20 E. 3 Estop 187. 2. That every Estopple because it concludeth a man to alleage the truth must be sertain to every intent and not to be taken by argument or inference 21 E. 4. 4. 23. Ass 14. 17 H. 6. Estop 273. 18 E. 3 30. 7 H. 6. 7. 16. 3. Every Estoppel ought to be a precise Affirmation of that which maketh the Estoppel and not be spoken impersonally as if it be said Vt dicitur quia impersonalitas non concludit nec ligat 46. 3 E 33. 29 Asse 38. Pl. Com. 398. neither doth a recital conclude because it is no direct Affirmation 35. H. 6. 33. 46. 3 E 12 49 E. 3. 14. 8. Ass 3. 45. Ass 5. 3. El. Dyer 196. 11 El. Dyer 280. 9 H. 6. 60. 4. A matter alleaged that is neither traversable nor material shall not estop 5 E. 4. 7. 8 E. 4. 19. 10 E. 4. 12. 22 E. 4. 38. 32 Ass 9. 35 H. 6. 20. 5. Regularly a man shall not be concluded by acceptance or the llke before his Title accrued 33 H. 6. 16. 4 E. 3. 22. 6 H. 4. 7. 31 E. 1. Gard 155. F.N.B. 142. E. 6. Estoppel against Estoppel doth put the matter at large 12 H. 7. 4. 20 H. 6. 29. 3 H. 4. 9. 41 E. 3. 4 11 H. 4. 30. 7. Matters alleaged by way of supposal in Counts shall not conclude after Non-suit otherwise it is after Judgement given and after Non-sute albeit the supposal in the Count shall not conclude yet the Barre Tittle Replication or other pleading of either party which is precisely alleaged shall conclude after Non-suit and hereby are the Books reconciled 2 R. 3. 14. 2 R. 2. Estop 10. 40 E. 3. 21. 128..4 13. 18 E 3. 31. 35. 44 E. 3. 45. 17 Ass 27. 45 E. 3. 2. 21 H. 7. 14. 5 E. 4. 7. â— E. 4. 19. 3 E. 4. 11. 4 E 3. 54. 7 E. 6. Br. Fstop 162. 11. H. 4. 30. 30 E. 3. 21. 31 Ass 14. 8. Where the verity is apparent in the same Record the adverse party shall not be estopped to take advantage of the truth for he cannot be estopped to alleage the truth when the truth appeareth of Record If a Fine be levied without any Original it is voidable but not void but if an Original be brought and a Retraxit entred and after that a concord is made or a Fine levied this is void in respect the veriety appeareth of Record 37 Ass 17. 38 H 12. 3 El. Dyer 222. An Impropriation is made after the death of an Incumbent to a Bishop and his Successors the Bishop by Indenture demiseth the Personage for fourty yeers to begin after the death of the Incumbent the Dean and Chapter confirm it the Incumbent dyeth this demise shall not conclude for that it appeareth he had nothing in the Impropriation till after the death of the Incumbent 7 Eliz. Dyre 244. 9. Where the Record of the Estoppel doth run to the disability or illegittimation of the person there all strangers shall take benefit of the Record as Outlawry excommengement Profession Attainder of Praemunire of Felonies c. Bastardy Mulierty and shall conclude the party though they be strangers to the Record Vide Sect. 196. 197 e. But of a Record concerning the name of the person quality or addition no stranger shall take advantage because he shall not be bound by it But Nota Reader That in case of the Mulierty prima facie an estranger shall take benefit of it c. But yet because he may be a Mulier by the Ecclesiastical Law and a Bastard by the Common Law therefore against such a Certificate pleaded the adverse party may alleage the special matter and confesse the Certificate of the Bishop according to the Ecclesiastical Law and alleage further the special matter according to the Common Law whereunto the adverse party must answer and so are the Books reconciled Bract. fo 420. 26 Ass 64. 39 Ass 10. 11 H. 4. 84. 7 H. 6. 7. 33 Ass 5. 11 E. 3. Estop 2 29. 21 E. 3. 39. 19 R. 2. Estop 28. 2. 3 E. 23. 3. ib. 33 E. 3 Estop Statham Stat. 9 H. 6. c. 11. 30 H. 6. 2. D. St. 69. 34 H. 6 39. 18 E. 4. 2 b 10 E. 4. 16. Sect. 669. Fol. 353. a. When a feme covert is received she shall plead as if she were sole and this is regularly true yet holdeth not in all cases for if a feme covert be received in an Assize and plead a Record and fail therefore she shall not be adjudged a disseisor as she shoud be if she were sole c. 37 Ass 1. So if a feme covert onely levy a Fine executory and a Scire fac is brought against her and her husband if she be received upon the default of her husband she shall barre the Conusee which if she had been sole she could not do and in some other cases 17 Ass 17. 29 E. 3. 43. 5 E. 3. 138 Voucher Again If the husband levy a Fine of his wives land and the Conusee grant and render the land to the husband and wife although the wife be not party to the Original nor to the Conusans and therefore she ought not by the Law to take any present estate but by way of remainder onely yet here it is proved by Littleton That the grant and render de fecto to the wife in presenti is not void for then it could not work a Remitter but voidable by Writ of Error and that avoidable estate doth work a Remitter T. 27 El. inter Owen Morgan Rot. 276. in Com. B. l. 3. f. 5. Marg. of Winchesters Case 7 E. 3. 64. 13 E. 3. Vouch. 119. Vide Sect. Sect. 670. Fo. 353. b. Si Baron feme fesont un conusance de droit a un auter c. ou fesoyent un grant render a un auter ou release per fine a un auter c. lou le droit del feme passera del feme per forne de mas le fine en tout tiels cases le feme serre examin devant que le fine soit accept pur ceo que tiels fines concludont tiels femes coverte a touts jours c. mes lou riens est move en le fine forsque tantsolement que le Baron la feme pregnant estate per force de mes le fine ceo ne concludam la feme pur ceo que en tiel case el jameres ne serre my examine c. 15 E. 4. 28. 14 E. 3. 31. Therefore if the husband and wife be Tenants in speciall Tail and they levy a Fine at the Common Law and after the husband wife take back an estate to them and their heirs in this case the estate Tail is not barted and yet against a feme levied by her self she cannot be remitted because thereupon she was examined but in that case if the land descend to her issue he shall be remited â—9 E. 3.
5 E. 3. enter cong 42. 15 E. 3. Age 95. 41 E. 3. 18. pe Finchden 22 E. 3. 2 b lib. 1. 15. Sir William Pelhams case Since our Author wrote the statute of 14. El. cap. 8. hath been made concerning this matter Vide l. 3. 60. Lib. 1. fo 15. And Nota That although the discontinuâ—â— groweth by matter of Record yet the Remitter may be brought by matter in paiis Sect. 676. Autor al. Contr. 44 E. 3. 17. 44 Ass 2. 43 Ass 3. Vide Sest 6â—6 Sect. 677. Fo 356. b. In this case the estate is in the feme covert presently by the livery before any agreement by the husband 15. 4. 1. b. 7 H. 6. 17. 1 H. 7. 12. b. 39 E. 3. 30. 57 H. 8. 24. If the wife survive her husband she cannot claim in by the purchase made during the coverture but the law adjudgeth her in her better right 41 E. 3. 18. But if both estates be waivable there albeit the wife prima facie is remitted yet after the decease of her husband she may elect which of the Estates she will As if lands be given to the husband and wife and their heirs the husband make a feoffment in Fee * the Feoffee giveth the husband and wife and the heirs of their two bodies the husband dieth 18 El. Dy. 351. * the Feoffee giveth land to the husband and wife c. If Lands be given to a man and the heirs females of his body and he maketh a feoffment in fee and take back an estate to him and his heirs and dyeth having issue a daughter leaving his wife grossement enseint with a Son and dieth the daughter is remitted and albeit the son be afterward borne he shall not devest the Remitter Sect. 678. Fol. 357. Covin and consent in many cases to do a wrong do choak a meer right and the ill manner doth make a good matter unlawfull 18 E. 4. 2. b. Covina is a secret assent determined in the hearts of two or more to the defrauding and prejudice of another Pl. Com. 546. Wimb If a Disseisor Intrudor or Abator do endow a woman that hath lawful Title of Dower this is good and shall binde him that right hath if there were no covin or consent before the disseisin c. 44 E. 3. 46. 11 H. 4. 60. 44 Aff. 29. 19 H. 8. 12. 18 H. 8. 5. 11 E. 4. 2. 7 H. 7. 11. In all cases where a man hath a rightfull and just cause of action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the covin doth suffocate the right so as the recovery though it be upon a good Title shall not binde or restore the Demandant to his right 41 Ass p. 28. 25 Ass p. 1. 27 Ass 74. 15 E. 4. 4. a. 12. Ass p. 10. If Tenant in Tail and his issue disseise the discontinuee to the use of the Father and the Father dieth and the land descend to the issue he is not remitted against the discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraign the first Warranty 11 E. 4. 2. 15 E. 4. 23. 14 H. 8. 12. 33 H. 6. 5. 12 E. 4. 21. b. A. and B. joyntenants be intituled to a real action against the heir of the disseisor A. cause the heir to be disseised against whom A. and B. recover and sue execution B is remitted for that he was not party to the covin and shall hold in common with A. but A. is not remitted fo 357. b. Nota it is regularly true That a feme covert cannot be a disseisoress by her commandment or procurement precedent nor by her assent or agreement subsequent but by her actual entry or proper act she may be a disseisoress And therefore some do hold that Littleton must be intended that the husband and wife were present when the disseisin was done and others do hold that Littleton is good Law albeit she were absent for if that her procurement or agreement be to do a wrong to cause a Remitter unto her in this special case she shall fail of her end and remitted she shall not be but in this special case she shall be holden as a disseisoress by her covin and consent quatenus to hinder a Remitter F.N.B. 179. g. 12. E. 4. 9. 35 Ass 5. 44. E. 3. 9. 23. 13 Ass 1. Temps E. 1. Waste 128. 16. Ass p. 7. 21. E. 4. 53. 21. H 7. 35. 3. H. 4. 17. Sect. 679. Vide Pl. Com. Amy Townsends Case 12. R. 2. Remit 12. Sect. 680 681. fol. 358. Here note five things 1. That a remainder expectant upon an estate for life worketh no Remitter but when it falls in possession for before his time he can have no action and no Freehold in him 18. H. 8. 3. 2. Though the woman might wave the remainder yet because she is presently by the death of the husband Tenant to the praecipe it is within the rule of Remitter and her power of waiver is not material 3. That a Freehold in Law being cast upon the woman by act of Law without any thing done or assented to by her doth Remitter her albeit she be then sole and of full age vide S. 447. 4. That a Praecipe lieth against one that hath but a Freehold in Law 5. That a woman shall be endowed where the husband hath the inheritance and but a Freehold in Law Brit. 83. b. Sect. 682 683 684 685. Fo. 359. Vide 12. E. 4. Compare these four Sections well together A man absent can neither take Livery nor make Livery without Deed Temps H. 8. Feoffments Br. 72. 40 E. 3. 41 .10 E. 4. 1. a. 15 E. 4. 18. 18 E. 4. 12. 22 H. 6. 12. Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur Et le fits nient conusant de ceo ne agrea a le feoffment c. Here it appeareth That if the Son be Conusant and agreeth to the Feoffment c. This is no remitter to him Vide Sect. 682. If A. be seised in Tail and have issue two Sons and by Deed indented between him of the one part and the Sons of the other part maketh a lease to the eldest for life the remainder to the second in fee and dieth and the eldest Son dieth without issue the second Son is not remitted because he agreed to the remainder in the life of the Father or if the like estate had been made by paroll if in the life of the Father the Tenant for life had been impleaded and made default and he in the remainder had been received and thereby agreed to the remainder after the death of the Father and the eldest Son without issue the second Son should not be remitted because he agreed to the remainder in the life of the Father Sect. 685. Fol. 360. a. Acts of Parliament are to be so construed
which issue is found for the Demandant whereupon he recovereth the Tenant albeit Assets do after descend shall never have a scire fac upon the said Judgement for that by his false plea he hath lost the benefit of the said Statute fol. 366. a. Touching the third sufficient hath been spoken before For the last Nota That if the husband be seized of lands in right of his wife and maketh a Feoffment in fee with Warranty the wife dyeth and the husband dyeth this Warranty shall not binde the heir of the wife without Assets albeit the husband be not Tenant by the Curtesie 8 E. 2. gar 81. 18. E. 3. 51. A Warranty may not onely be annexed to Freeholds or Inheritance corporeal which pass by Livery as houses and lands but also to Freeholds or Inheritances incorporeal which lie in grant as Advowsons and to Rents Common Estovers c. which issue out of Lands or Tenements and not onely to Inheritances in esse but also to Rents Commons c. newly created As a man some say may grant a Rent c. out of land for life in Tail or in fee with Warranty for although there can be no Title precedent to the Rent yet there may be a Title precedent to the land out of which it issueth before the grant of the Rent which rent may be avoided by the recovery of the land in which case the grantee may help himself by a Warrantia Cartae upon the especial matter and so a Warranty in Law may extend to a rent c. newly created and therefore if a rent newly created be granted in exchange for an acre of land this exchange is good and every exchange implyeth a Warranty in Law and so a Rent newly created may be granted for owelty of partition 2 H. 4. 13. 30 H 8. Dyer 42. Temps E. 1. Admeasurement 16. 32 E. 1. Vouch 294. 30 E. 1. Exch. 16. 9 E. 4. 15. 15 E. 4. 9. 29 Ass 13. A man seised of a rent seck issuing out of the Manor of D. taketh a wife the husband releaseth to the Terre-tenant and Warranteth Tenementa praedicta and dieth the wife bringeth a Writ of Dower of the rent the Terre-tenant shall vouch for that albeit the release enured by way of Extinguishment yet the Warranty extended to it and by Warranty of the land all rents c. issuing out of the land that are suspended or discharged at the time of the Waranty created are waranted also Vide Sect. 741. 45 E. 3. Vouch. 72. 9 E. 3. 78. 18 E. 3. 55. 30 E. 3. 30. 21 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 10 E. 4. 9. b. 21 E. 4. 26. 14 H. 8. 6. 30 H. 8. Dyer 42. Sect. 698. Fo. 366. b. A Warranty that commenceth by disseisin is so called because Regularily the Conveyance whereunto the warranty is annexed doth work a disseisin The Example that Littleton putteth of this kinde of Warranty have four qulities 1. That the disseisin is done immediately to the heir that is to be bound l. 5. fo 79. Fitzh c. and yet if one brother make a gift in Tail to another and the Uncle disseise the Donee and infeoff another with Warranty the Uncle dyeth and the Warranty descend upon the Donee and then the Donee dyeth without issue albeit the disseisin was done to the Donee and not to the Donor yet the Warranty shall not binde him 31 E. 3. garr 28. The Father the Son and a third person are joyntenants in fee the Father maketh a Feoffment in fee of the whole with Warranty and dyeth the Son dyeth the third person shall not * avoid the feoffment * onely for his own part but also for the part of the Son and he shall take advantage that the Warranty commenced by disseisin though the disseisin was done to another fol. 367. a. 2. That the Warranty and disseisin are simul and semel and yet if a man commit a disseisin of intent to make the feoffment in fee with Warranty albeit he make the feoffment many years after the disseisin yet the Law shall adjudge upon the whole matter and by the intent couple the disseisin and the Warranty together 19 H. 8. 12. l. 5. fo 79. b. 3. That the Warranty c if it should binde should binde as a collateral Warranty and therefore commencing by disseisin shall not binde at all A lessee for years may make a feoffment and a fee simple shall passe so as albeit as to the lessor it worketh by disseisin yet between the parties the Waranty annexed to such estate standeth good upon which the feoffee may vouch the feoffor or his heirs as by force of a lineal Warranty Note there is a feoffment de jure and a * feoffment de facto If the Lord be Gardein of the Land or if the Tenant make a lease to the Lord for years or if the Lord be Tenant by statute Merchant or Staple or by Elegit of the Tenancy and make a feoffment in fee he hereby doth extinguish his Seignory although having regard to the lessor it is a disseisin Vide Sect. 611. Brit. ca. Disseisin 50 E. 3. 12. b. 8 H. 7. 5. 19 E. 2. Ass 400. 3 E. 4. 17. 12 E. 4. 12. 10 E. 4. 18. F.N.B. 201. l. 3. f. 78. Fermors case * Temps E. 1. Counterplea de Vouch. 126. 50 E. 3. ibid. 124. The 4. quality is a disseisin but that is put for an example For if the Tenant dyeth and an Ancestor of the Lord enter before the entry of the Lord and make a feoffment in fee with Warranty and dyeth this Warranty shall not binde the Lord because it commenceth by wrong being in nature of an Abatement sic de similibus Sect. 700. Fol. 367. b. If the purchase were to the Father and the Son and the heirs of the Son and the Father maketh a feoffment in fee with Warranty if the Son enter in the life of the Father and the feoffee re-enter the Father dyeth the Son shall have an Assize of the whole 13 Ass 8. 13 E. 3. gar 24. 25. 37. 22 H. 6. 51. 8 H. 7. 6. But if the Son had not entred in the life of the Father then for the Fathers moity it had been a barre to the Son for that therein he had an estate for life and therefore the Warranty as to that moity had been collateral to the Son and by disseisin for the Sons moity and so a Warranty defeated in part and stand good in part If a man of full age and an Infant make a feoffment in fee with Warranty it is good for the whole against the man of full age and void against the Infant For albeit the feoffment of an Infant passing by Livery of seisin be voidable yet his Warranty which taketh effect onely by Deed is meerly void Temps E. 1. Voucher 207. 39. E. 3. 26. John Londons Case 14. H. 6. Sect. 701. Fo 368. a. b. Duo non possunt in solido rem
unam possidere 19. H 6. 28. b. per Newton If a man hath issue two daughters Bastard eign and Mulier puisne and dye seised and they both enter generally the sole possession shall not be adjudged onely in the Mulier because they both claim by one and the same Title 17. E. 3. 59. 11. Ass p. 23. Barretor is a common mover and exciter or maintainer of suits quarrels or parts either in Courts or elsewhere in the Countrey l. 8. f 36. b. Case de Barretry fo 368. b. Extortion in his proper sense is a great misprision by wresting or unlawfully taking by any Officer by colour of his Office any money or thing valuable of or from any man qd non est debitum vel quod est ultra debit ' vel ante tempus quod est debitum Pl. Com. 64. l. 10. 10. 1. Beausages Case W 1. c. 26. c. W. 1. c. 10. 42 E. 3. 5. 27. Ass 14. Pl. Com. 68. Robbery is apparant and hath the face of a Crime but Extortion puts on the visure of Vertue for expedition of Justice c. and it is ever a companied with that grievous sin of Perjury Pl. Com. Dive and Mannings Case But largely Extortion is taken for any Oppression by extort power or by colour or pretence of Right and so Littleton taketh it in this place 7 E. 4. 21. Manutenentia signifies a taking in hand bearing up or upholding of quarrels and sides to the disturbance or hinderance of Common Right 1 E. 3. c. 14 20 E. 3. c. 4 5. By the Statute of 1 R. 2 c. 9. it is enacted That feoffments made for maintenance shall 〈◊〉 be holden for none and of no value so as Littleton putteth his case at the Common Law for he seemeth to allow the feoffment where he saith tiel feoffment fuit le cause c. But some have said That the feoffment is not void between the feoffer and the feoffee but to him that right hath Now since Littleton wrote there is a notable Statute 32 H. 8. c. 9. made in suppression of the causes of unlawfull maintenance The effect of which Statute is 1. That no person shall bargain buy sell or obtain any pretenced Rights or Titles 2. Or take promise grant or Covenant to have any Right or Title of any person in or to any lands c. but if such person which so shall bargain c. their Ancestors or they by whom he or they claim the same have been in possession of the same or of the reversion or remainder thereof or taken the * rents or profits thereof by the space of one whole year c. upon pain to forfeit the whole value of the lands c. and the buyer or taker c. knowing the same to forfeit also the value * Those words are but explanatory and put for example c. 3. Provided that it shall be lawfull for any person being in lawfull possession c. to obtain or get the pretenced Right or Title c. Nota That Title or Right may be pretenced two manner of wayes 1. When it is meerly in pretence or supposition and nothing in verity 2. When it is a good Right or Title in verity and made pretenced by the act of the party and both these are within the said Statute For example If A. be lawfull owner of land and is in possession B. that hath no right thereunto grant to A or contracteth for the land with another the grantor and the grantee albeit the grant be meerly void are within the danger of the Statute for B. hath no right at all but onely in pretence If A. be disseised in this case A. hath a good lawfull right yet if A. being out of possession grant to or contracteth for the land with another he hath made now his good right of Entry pretenced within the Statute and both the grantor and the grantee within the danger thereof A fortiori of a right of Action quod nota Pl. Com. 80 c. Partridges Case It is further to be known That a Right or Title may be considered three manner of wayes 1. As it is naked and without possession 2. When the absolute Right cometh by release or otherwise to a wrongfull possession and no third person hath either jus proprietatis or jus possessionis 3. When he hath a good right and a wrongfull possession As to the first somewhat hath been said As to the second taking the former example If A. be disseised and the disseisee release unto him he may presently sell grant or contract for the land and need not tarry a yeer for it is a rule upon this Statute that whosoever hath the absolute ownership of any Land tenements or haereditaments as in this case the disseisor hath there such owner may at his pleasure bargaine grant or contract for the land for no person can thereby be prejudiced or grieved 6 E. 6. Br. Maintenance 38. And so if a man Morgage his Land and after redeem the same or if a man recover land upon a former title or be remitted to an ancient right he may at any time bargaine c. As to the third if in the case aforesaid the disseisor dyeth seised and A. the disseisee enter and disseise the heir of the disseisor albeit he hath an ancient right yet seeing the possession is unlawfull if he bargaine or contract for the land before he hath been in possession by the space of a yeer he is within the danger of the Statute because the heir of the disseisor hath right to the possession and he is thereby grieved sic de similibus A Lease for yeers is within the Statute for the Statute saith not the right but any right and the offendor shall forfeit the whole value of the Land 23. Eliz Dy. 374. Pl. Com. Fo. 87. But yet if a man make a Lease for yeers to another to the intent to try the Title in an Eject fir that is out of the statute because it is in a kind of course of Law but if it be made to a great man or any other to sway or countenance the cause that is within this statute M. 30. and 31. El. 28. 11. inter Finch and Cocham in Com. Banc. Fo. 369. b. A Customary right or a pretence thereof to lands holden by Copie is within this statute l. 4. fo 26. Copihold case If there be Tenant for life the remainder in fee by lawfull and just title he in the remainder may obtain and get the pretenced right or title of any stranger not onely for that the particular estate and the remainder are all one but for that it is a mean to extinguish the seeds of troubles and suits and cannot be to the prejudice of any 34 H. 8. Dy. 52. And where the Statute saith being in lawfull possession by taking the yeerly rent c. those words are but explanatory and put for example for howsoever he be lawfully seised in possession
reversion or remainder it sufficeth though he never took profit But the matter observable upon this proviso is that if a desseisor make a Lease for lives or yeers the remainder for life in taile or in fee he in remainder cannot take a promise or Covenant that when the disseisee hath entered upon the Land or recovered the same that then he should convey the Land to any of them in remainder thereby to avoid the particular estate or the interest or estate of any other for the words of the proviso be buy obtain get or have by any reasonable way or mean and that is not by promise or Covenant to convey the Land after entry or recovery for that is neither lawfull being against the expresse purview of the body of the act and not reasonable because it is to the prejudice of a third person But the reasonable way or meane intended by the statute is by release or confirmation or such conveyances as amount to as much Sect. 703. Fo. 370. a. A Warranty lineall is a Covenant reall annexed to the Land by him which either was owner or might have inherited the Land and from whom his heire lineall or collaterall might by possibility have claimed the Land as heire from him that made the warranty In a Jur. utr brought by a Parson of a Church the Collaterall Warranty of his Ancestor is no barre for that he demands the Land in the right of his Church in his politick capacity and the Warranty descendeth on him in his naturall capacity 27 H. 6. garr 48. But some have holden that if a Parson bring an Ass that a Collaterall warranty of his Ancestor shall bind him for that the Ass is brought of his possession and seisin and he shall recover the meane profits to his own use 34 E. 3. garr 71. But seeing he is seised of the freehold whereof the Ass is brought in jure Ecclesiae which is in another right then the warranty it seemeth that it should not be any barre in the Ass The like Law is of a Bishop Archdeacon Dean Master of an Hospital and the like of their sole possessions and of the Prebend Vicar c. King H. 3. gave a Manor to Edmond Earl of Cornwall and to the heires of his body saving the possibility of Reverter and dyed The Earl before the Statute of W. 2. c. 1. de donis Cond by Deed gave the said Manor to another in fee with Warranty in exchange for another Manor and after the said Statute Anno 28 E. 1. dyeth without issue leaving Assets in fee simple which is Warranty and Assets descended upon King E. 1. as Cousin German c. And it was adjudged that the King as heire to the said Earl Edmond was by the said Warranty and Assets barred of the possibility of Reverter which he had expectant upon the said gift albeit the Warranty and Assets descended upon the natural body of King E. 1. as heir to a Subject and E. 1. claimed the said Manor as in his Reverter in jure Coronae in the capacity of his Body Politick in which right he was seised before the gift 45 Ass 6. 6 E. 3. 56. Pl. Com. 234. 553 554. Vide 27 H. 6. garr 40. 34 E. 3. garr 71. In this case how by the death of the said Earl Edmond without issue the Kings Title by Reverter and the Warranty and Assets came together and that the Warranty was collateral yet the King shall not be barred without Assets as a Subject shall be and many other things are to be observed in this case which the learned Reader will observe Vide Sect. 711. 712. Sect. 704 705. Fo. 371. a. Littleton doth agree with the Authority of our Books 46 E. 3. 6. 5 E. 3. 14. 19 H. 8. 12. so as the diversities do stand thus 1. Where the disseisin and feoffment are uno tempore and where at several times 2. Where the disseisin is with intent to alien with Warranty and where the disseisin is made without such intent and the alienation with Warranty afterwards made Sect. 706. ibid. Upon every Conveyance of lands c. as upon Fines Feoffments Gifts c. Releases and Confirmations made to the Tenant of the land a Warranty may be made albeit he that makes the Release or Confirmation hath no right to the land c. But some do hold that by Releases or Confirmations where there is no estate created or transmutation of possession a Warranty cannot be made to the Assignee 14 E. 3. Voucher 108. 16 E. 3. ibid. 87. 18 E. 3. 6. 12 H. 7. 1. Vide S. 733 738 745. Sect. 707. Fol. 371. b. The opinion of Littleton in this case is holden for Law against the opinions in 35 E. 3. garr 73. 11 H. 4. 33. Sect. 708. Fol. 372. a. Hereby it appeareth that a Warranty that is collateral in respect of some persons may afterwards become lineal in respect of others 8 R. 2. garr 101. Whereupon it followeth That a collateral Warranty doth not give a right but bindeth onely a right so long as the same continueth but if the collateral Warranty be determined removed or defeated the right is revived 43 Ass 44. 24 H. 8. tit Tail Br. 7. H. 5. 6. tit Ass 350. 34 E. 3. Droit 29. 19. H. 6. 59. 21. H. 7. 40. 5 H. 7. 29. 3 H. 7. 9. b. And yet in an Assize the Plaintiff hath made his Title by a collateral warranty 16 Ass p. 16. 27 Ass 74. 29 Ass 50. 43 Ass 8. 14 H. 4. 13. 19 H. 6. 66. Barre signifieth legally a destruction for ever or taking away for a time of the action of him that right hath Nota That in some cases an estate Tail may be barred by some Acts of Parliament made since Littleton wrote and in some cases an estate Tail cannot be barred which might when Littleton wrote have been barred For Example if Tenant in Tail levy a Fine with Proclamation according to the Statute this is a barre to the estate Tail but not to him in reversion or remainder if he maketh his claim or pursue his action within five yeers after the estate Tail spent 4 H. 7. c. 24. ct 32 H. 8. c. 36. If a gift be made to the eldest Son and to the heirs of his body the remainder to the Father and to the heires of his body the Father dyeth the eldest Son levieth a Fine with Proclamation and dieth without issue this barreth the second Son for the remainder descended to the eldest Dalisons 2 El. 7 El. lib. 3. f. 84. If Tenant in Tail be disseised or have a right of action and the Tenant of the land levy a Fine with proclamation and five years pass the right of the estate Tail is barred If Tenant in Tail in possession or that hath a right of entry be attainted of High Treason the estate Tail is barred and the land is forfeited to the King and none of these were bars when Littleton
venter and a Son by another the eldest Son enters and dieth the land descends to the sister in this case the warranty descendeth on the Son and he may be vouched as heir and the sister as heir of the land In which case and in the other case of Borough English the Son and heir by the Common Law having nothing by discent the whole loss of the recovery in value lieth upon the heires of the land albeit they be no heires to the warranty 32 E. 3. vouch 94. 35 H. 6. 3. Then put the case that there is a warranty paramount who shall deraign that warranty and to whom shall the recompence in value go some have said that as they are vouched together so shall they avouch over and that the recompence in value shall enure according to the losse and that the effect must pursue the cause as a recovery in value by a warranty of the part of the Mother shall go to the heire of the part of the Mother c. Pl. Come 515. Some others hold that it is against the maxime of the Law that they that are not heirs to the warranty should joyn in a voucher or to take benefit of the waranty which descends not to them but that the heir at the common Law to whom the warranty descended shall deraign the warranty and recove in value and that this doth stand with the rule of the common Law Others hold the contrary and that this should be both against the rule of Law and against reason also for by the rule of Law the vouchee shall never sue to have execution in value untill execution be sued against him But in this case excution can never be sued against the heir at the common Law therefore he cannot sue to have execution over in value Secondly it should be against reason that the heire at the common law should have totum lucrum and the especial heirs totum damnum 17 E. 2. Recover in value 33. 18 E. 3. 51. l. 1. 96. Shelleyes case I find in our Books this reason is yielded that the special heires should not be vouched only for say they then could not they deraigne the warranty which should be mischievous that they should lose the benefit of the warranty if they should be vouched onely 32 E. 3. vouch 94. per Greene. But if the heire at the Common Law were vouched with them as by the Law he ought all might be saved and therefore study well this point how it may be done If Tenant in general Tail be and a common recovery is had against him and his wife where his wife hath nothing and they vouch and have judgement to recover in value Tenant in Tail dyeth and the wife surviveth for that the issue in Tail had the whole losse the recompence shall enure wholly to him and the wife albeit she was party to the judgment shall have nothing in the recompence for that she loseth nothing Pl. Com. Fo. 514. If the Bastard eigne enter and take the profits he shall be vouched onely and not the Bastard and the Mulier because the Bastard is in apparance heire and shall not disable himself 17 E. 3. 59. 20 E. 3. vouch 129. 5 H. 7. 2. If a man be seised of Lands in Gavelkind and hath issue three Sonnes and by Obligation bind himself and his heires and dieth an action of debt shall be maintenable against all the three Sonnes for the heire is not chargeable unlesse he hath lands by discent 11 H. 7. 12. 11 E 3. Det. 7. Dy. 5. El. 238. So if a man be seised of Land on the part of his Mother and bind himself and his heirs by Obligation and dyeth an action of debt shall lye against the heire on the part of the Mother without naming the heire at the Common Law and so note a diversity between a personal lyen of a bond and a reall lyen of a warranty Sect. 719. Fol. 377. a. Here it appeareth that whensoever the Ancestor taketh any estate of freehold a limitation after in the same conveyance to any of his heires are words of limitation and not of purchase albeit in words it be limitted by way of remainder and therefore here the remainder to the heires females vesteth in the Tenant in tail himself 24 E. 3. 36 27 E. 3. Age 108. 38 E 3. 26. 40. E. 3. 5. 37 H. 8 Br. nosme 1. 40. tit done Rem 61. The issues inheritable must make their claim either only by Males or only by Females so as the Females of the Males or Males of the Females are wholly excluded c. 1 H. 6. 4. Pl. Com. 414. Vide Sect. 24. But where the first limitation is to the heires males let the limitation be for default of such issue to the heires of the body of the donee and then all the issues be they Females of Males or Males of Females are inheritable If a man give Lands to a man to have and to hold to him and the heires Males of his body and to him and to the Heires Females of his body the estate to the heires Females is in remainder and the daughter shall not inherit any part so long as there is issue Male. Sect. 720. Nihil simul inventum esi perfectum saepe viatorem nova non vetus orhita fallit and therefore new inventions in assurances are dangerous 22 H. 6. 33. l. 6. f. 42. b. Sir Anthony Mildmayes case Non prosunt dominis quae prosunt omnibus artes quoniam In suo quisque negotio hebetior est quam in alieno 2 H. 4. fo 11. Action sur le case Sect. 721. Fol. 378. a. Every remainder which commeth by deed ought to vest in him to whom it is limited when livery of seisin is made to him that hath the particular estate 1. Littleton saith by Deed because if Lands be granted and rendred by Fine for life the remainder in Taile the remainder in Fee none of these remainders are in them in the remainder until the particular estate be executed 7 R. 2. scire facias 2. That the remainder be in him c. at the time of the livery This is regularly true but yet it hath divers exceptions As where the remainder is to commence upon limitation of time viz. upon the possibility of the death of one man before another which is a common possibility Pl. Com. Colthirsts case fo 65. 29. 32 H. 6. tit feoffments c. 99. 27. E. 3. 87. 12 E. 4. 2. 21 H. 7. 11. 7 H. 4. 23. 11 H. 4. 74. 18 H. 8. 3. 27. H. 8. 42. 38 E. 3. 26. 30. Ass 47. 6 R. 2 qu Iur. Dam. 20. A man letteth lands for life upon condition to have Fee and warranted the land in forma predicta afterward the lessee performeth the conditions whereby the lessee hath fee the warranty shall extend and increase according to the State And so it is in that case if the lessor had dyed before the
If a man infeoff A. to have and to hold to him his Heires and Assignes A. infeoffeth B. and his heirs B. dyeth the heire of B. shall vouch as Assignee to A. so as heires of Assignees and Assignees of Assignes and Assignes of Heirs are within this word Assignes which seemed to be a Qu. in Bractons time and the Assignee shall not onely vouch but have a Warrantia Cartae 12. E. 2. vouch 263. 19 E. 2. gar 85. 13 E. 1. ib. 93. 36 E. 3. gar 1. 4 H. 8. Dyer 1. F. N. B. 135. If a man doth warrant Land to another without this word Heires his heirs shall not vouch and regularly if he warrant land to a man and his heirs without naming Assignes his Assignee shall not vouch But if the Father be infeoffed with Warranty to him and his heires the Father infeoffeth his eldest Son with Warranty and dyeth the Law giveth to the Son advantage of the Warranty made to his Father because by act in Law the Warranty between the Father and the Son is extinct 43 E. 3. 23. 24 E. 3. 3. 11 H. 4. 94. 5 E. 3. Age 19. Pl. Com. 418. But note a diversity between a Warranty that is a Covenant real which bindeth the party to yield Lands or Tenements in recompence and a Covenant annexed to the Land which is to yield but damage for that a Covenant in many cases extendeth further then the Warranty As for Example It hath been adjudged that where two Coparceners made partition of Land and the one made a Covenant with the other to acquit her and her heirs of a Suit that issued out of the Land the Covenantee aliened in that case the Assignee shall have an action of Covenant and yet he was a stranger to the Covenant because the acquitall did run with the land 42 E. 3. b. per Finchden fol. 385. a. A. seised of the Manor of D. whereof a Chappel was parcel a Prior with the assent of his Covent Covenants by Deed indented with A. and his heirs to celebrate divine Service in his Chappel weekly for the Lord of the Manor and his Servants c. In this case the assignees shall have an action of Covenant albeit they were not named for that remedy by covenant doth run with the Land to give damages to the party grieved and was in manner appurtenant to the Manor 42 E. 3. 3. a. Laurence Pakenhams case 6 H. 4. 1. Ralph Brabsons case But if the Covenant had been made with a stranger to celebrate divine Service in the Chappell of A. and his heirs there the Assignee shall not have an action of Covenant for the Covenant cannot be annexed to the Manor because the Covenantee was not seised of the Manor Vide lib. 5. fol. 17 18. Spencers case 2 H. 4. 6. H. Hornes case And note that an Assignee of part of the Land shal vouch as Assignee As if a man make a feoffment in fee of two acres to one with Warranty to him his Heirs Assignes if he make a feoffment of one acre that feoffee shall vouch as Assignee for there is a diversity between the whole estate in part and part of the estate in the whole or of any part As if a man hath a Warranty to him his Heires and Assignes and he make a lease for life or a gift in Tail the lessee or donee shall not vouch as Assignee because the whole estate is out of the lessor or donor and by this means he shall take advantage of the Warranty But if a lease for life or a gift in Tail be made the remainder over in fee such a lessee or donee shall vouch as Assignee because the whole estate is out of the lessor and the particular estate and the remainder do in Judgment of Law to this purpose make but one estate 18 E. 4. 52. 10 E. 3. 58. 5 E. 3. 40. Accord H. 14. 1. in Com. Banc. If a man infeoff three with Warranty to them and their heirs and one of them release to the other two they shall vouch but if he had released to one of the other the warranty had been extinct for that part for he is an Assignee 40 E. 3. 14. 40 Ass 5. 33 H. 6. 4. 37 H. 8. Alienation c. 31. 8 H. 4. 8. If a man doth warrant land to two men and their heirs and the one make a feoffment in fee yet the other shall vouch for his moity 11 R. 2. Detin 46. 7 E. 3. 35. 46 E. 3 4. If a man at this day be infeoffed with warranty to him his heirs and assignes and he make a gift in Tail the remainder in fee the donee make a feoffment in fee that feoffee shall not vouch as Assignee but * he that cometh in in privity of estate If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or Tenant of the Land may rebutte and albeit no man shall vouch or have a Warrantia Cartae either as party heir or Assignee but in privity of estate yet any that is of another estate be it by Disseisin Abatement Intrusion Usurpation or otherwise shall rebut by force of the warranty as a thing annexed to the Land which sometimes was doubted in our Books 38 E. 3. 21. 26 E. 3. 56. l. 10. fo 96. b. Seymors Case 10 Ass 5. 35 Ass 9. 22 Ass 3. 988. 31 Ass 13. But herein note a diversity when he that rebutteth claimeth under the warranty and when he claimeth above the warranty for there he shall not rebut And therefore if Lands be given to two Brethren in fee simple with a warranty to the eldest and his heirs the eldest dyeth without issue the survivor albeit he be heir to him yet shall he neither vouch nor rebut nor have a Warrantia Cartae because his Title to the Land is by relation above the fall of the warranty and he cometh not under the estate of him to whom the warranty is made as the disseisor c. doth If a man make a gift in Tail at this day and warrant the land to him his heirs and assignes and after the donee make a feoffment and dyeth without issue the warranty is expired as to any Voucher or Rebutter for that the estate Taile whereunto it was knit is spent Otherwise it is if the gift and feoffment had been made before the Statute of Donis Cond for then both the donee and feoffee had a fee simple and so are our Books to be intended in this and the like cases Lib. 3. fo 63. Linc. Coll. case If A. be seised of Lands in fee and B. release unto him or confirmeth his estate in fee with warranty to him his heires and assignes All men agree this warranty to be good but some have holden That no warranty can be raised upon a bare Release or Confirmation without passing some estate or transmutation of possession 14 E. 3. garr 108. 12 H. 7. 1. But the Law as it appeareth
upon the Statute of H. 6. Ass c. there a warranty may be pleaded in barre Although a collaterall warranty be descended yet if the estate whereunto the warranty was annexed be defeated albeit it be by a meer stranger as in this case that Littleton here put by the discontinuee the warranty is defeated and although the discontinuance remain and no Remitter wrought to the heir yet the warranty is defeated and barre removed so as the issue in Tall may have his Formedon and recover the land Sublato Principali tollitur Adjunctum 3 H. 7. 9. b. 16 E. 3. Continual Claim 10. 9 H. 4. 8. Pl. Com. 158. Sect. 743. Fol. 390. a. Si tenant in tail fait un feoffment a son uncle pui◠l' uncle fait un feoffment in fee ovesque gar c. a un auter c. When the uncle taketh back as large an estate as he had made the warranty is defeated because he cannot warrant land to himself And so it is if the uncle had made the warranty to the feoffee his heirs and assigns and taken back an estate in fee and after infeoffed another yet the warranty is defeated for that he cannot be assignee to himself 40 E. 3. 14. 16 E. 3. Vouch. 87. 19 E. 3. Vouch. 122. 17 E. 3. 73 74. 20 H. 6. 29. A man shall not regularly vouch himself as assignee of a fee simple And yet if the Father be infeoffed with warranty to him and his heirs the Father infeoffeth his heir apparent in fee and die he shall vouch himself and be heir in Borough English by reason the act in Law determined the warranty between the Father and the Son 41 E. 3. 25. a. But if a man make a feoffment in fee with warranty to the feoffee his heirs and assignes and the feoffee reinfeoffe the feoffor and his wife or the feoffor and any other stranger the warranty remaineth still 11 H. 4. 20 42. 17 E. 3. 47 49. 18 E. 3. 56. 29 E. 3. 46. 39 E. 3. 9. Sect. 744. ib. A man infeoffeth a woman with warranty they intermarry and are impleaded upon the default of the husband the wife is received she shall vouch her husband c. notwithstanding the warranty was put in suspence 6 E. 2. Vouch. 257. 3 E. 3. ib. 201. 5 E. 3. 16. 178. And so on the other side if a woman infeoffe a man with warranty and they intermarry and are impleaded the husband shall vouch himself and his wife by force of the said warranty 4 E. 2. Vouch. 245 246. An Infant en ventre sa mere may be vouched if God give him a birth and if not such a one heir to the warranty but he cannot be vouched alone without the heir at the Common Law for Processe shall be presently awarded against him Temps E. 1. gard 1. 3. 31 E. 1. Breve 873. 8 E. 2. Vouch. 237. 11 E. 3. ib. 13. 9 H. 6. 24. Pl. Com. Stowels Case per Saunders and Brown Tenant in Tail maketh a feoffment in fee with warranty and disseise the discontinuee and dieth seised leaving Assets to the issue some hold that in respect of this suspending warranty and Assets the issue in Tail shall not be remitted but that the discontinuee shall recover against the issue in Tail and he take advantage of his warranty if any he hath and after in a Formedon brought by the issue the discontinuee shall barre him in respect of the warranty and Assets and so every mans Right saved 21 E. 3. 36. a. b. 38 E. 3. 21. 44 E. 3. 26. 45 E. 3. Title 32. 44 E. 3. ib. 31. 33 E. 3. ib. 4. Sect. 745. Note a diversity In the case of an Appeal the Defendant shall forfeit no lands but such as he had at the time of the outlawry pronounced for that there is no time alledged in the Writ when the Felony was done But in case of Indictment such as he had at the time of the Felony committed for there is a certain time alledged And in the case of the Indictment there is also a diversity to be observed for it shall relate to the time alledged in the Indictment for avoiding of Estates Charges and Incumbrances made by the Felon after the Felony committed but for the mean Profits of the land it shall relate onely to the Judgement as well in this case of Outlawry as in other cases 33 E. 3. Forfeit 30. 38 E. 2. 31. 3 E. 4. 25. 19 E. 4. 2. Pl. Com. 488. b. Felony Ex vi termini significat quodlibet capitale crimen felleo animo perpetratum Glan If a Felon be convicted by Verdict Confession or Recreancy he doth forfeit his goods and chattels c. presently A man is said convict before he hath judgement For Felony by Chance-medley or se defendendo or petit larceny a man shall forfeit his goods and chattels and no lands of any estate of Freehold or Inheritance Stanf. prerog 45. b. 16 E. 3. Cor. 116. By the Law at this day under the word Felony in Commissions c. is included Petit Treason Murther Homicide Burning of houses Burglary Robbery Rape c. Chance-medley se defendendo and Petit larceny Sect. 746 747. It is a generall rule That having respect to all those whose blood was corrupted at the time of the Attainder the Pardon doth not remove the corrupting of blood neither upward nor downward Bract. l. 3. fo 132. c. Brit. fo 215 b. As if there be Grandfather and Son and the Grandfather and Father have divers other Sons if the Father be attainted of Felony and pardoned yet doth the blood remain corrupted not onely above him and about him but also to all his children born at the time of this Attainder But in the case of Littleton if Tenant in Tail at the time of his Attainder had no issue and after his pardon had issue that issue should have been bound by the warranty And if his Father had issue before the pardon and had issue also after and dieth nothing can descend to the youngest for that the eldest is living and disabled But if the eldest son had died in the life of the Father without issue then the youngest should inherit Nota That a judgement against a man for felony is that he be hanged by the neck untill he be dead but implicativè he is punished 1. In his wife That he shall lose her dower 2. In his children they shall become base and ignoble 3. He shall lose his posterity for his blood is stained and corrupted that they cannot inherit unto him or any other Auncestrel 4. He shall forfeit all his lands and tenements which he hath in fee and which he hath in tail for term of his life And 5. all his goods and chattels The wife of a man attainted of high Treason or pety Treason shall not be received to demand Dower unlesse it be in certain cases specially provided for Stan. Pl. Cor. 195. But the wife of a
person attainted of misprision of Treason Murther or Felony is dowable since our Author wrote by the Statute of 1 E. 6. cap. 13. 5 E. 6. cap. 11. 5 El. ca. 1. 11. 18 El. cap. 1. 12 H. 4. 3. Vide Sect. 55. So if a Seigniory be granted with warranty and the Tenancy escheat the Seigniory whereunto the warranty was annexed is extinct and consequently the warranty defeated and it shall not extend to the land sic in similibus 6 H. 4. 8. 45 E. 3. vouch 72. Pl. Com. 292. 16 E. 3. Age 46. 28 H. 3. vouch 281. 23 E. 3. garr 77. Vide Sect. 200. If a collaterall Auncestrel release with warranty and enter into Religion now the warranty doth binde but if after hee be deraigned now it is defeated Sect. 748. Fol. 393. Per release de touts manners de garr ou de touts covenants reall ou de touts demandes le garr est extinct Et mults auters cases matters y sont per queux home poit defeate garr c. As by a defeasance as other things executory may Also a warranty may lose his force by taking benefit of the same 43 E. 3. 17. Pl. Com. Brownings case In a Precipe the tenant voucheth and at the sequatur sub suo periculo the tenant and the vouchee make default whereupon the demandant hath judgement against the tenant and afterwards the demandant brings a Scire facias against the tenant to have execution In this case the Tenant may have a War Cartae And if in that case a stranger had brought a praecipe against the Tenant hee might have vouched again for by the judgement given against the Tenant the warranty lost not his force but if the Tenant had judgement to recover in value against the vouchee he should never vouch again by reason of that warranty because he had taken advantage of the warranty and it is to be observed that upon the processe of Summon ad warr if the Sheriffe return the vouchee summoned and he make default the Tenant shall have a Capias ad val but if he return that the vouchee had nothing then after the Sicut alias plures a seq sub suo periculo shall issue and there if the vouchee make default the Tenant shall not have judgement to recover in value for he was never summoned and it appeareth of Record that he hath nothing but in the Cap. ad Val. it appeareth that he had Assets and he had been summoned before But in some speciall cases there shall be two recoveries in value upon one warranty As if a disseisor give lands to the husband and wife and to the heirs of the husband the husband alieneth in fee with warranty and dieth the wife bringeth a Cui in vita the Tenant vouch and recover in value if after the death of the wife the disseisee bring a praecipe against the Alienee he shall vouch and recover in value again So it is where the wife bringing a Writ of Dower against the Alienee he shall recover in value and after her death hee shall recover in value again upon the same warranty 45 E. 3. vouch 72. In the same manner it is if a man be seised of a rent by a defeasible title and release to the Tenant of the Land all his right in the Land and warrant the Land to him and his heirs if he be impleaded for the rent he shall vouch and recover in value for the rent and if after he be impleaded for the Land he shall vouch c. again for the Land But in these and the like cases the reason is in respect of the severall Estates recovered but for one and the same estate he shall never recover but once in value and though the Land recovered in value be evicted yet he shall never take benefit of that warranty after and as warranty may be defeated in the whole so they may be defeated as to the party of the benefit that may be taken of the same As he that maketh a warranty may make a defeasance not to take any benefit by way of voucher In the like manner that he shall take no advantage by way of Warrantia Cartae or by way of Rebutter 7 H. 6. 43. 13 Ass 8. 13 E. 3. gar 24 25. 3. 7. 22 H. 6. 51. 8 H. 7. 6. Sect. 749. If Tenant in Tail alien with warranty and leave Assets to discend if the issue in Tail doth alien the Assets and die the issue of that issue shall recover the Land because the lineall warranty descends onely to him without Assets for neither the pleading of the warranty without Assets nor Assets without warranty is any barre in the Formedon in the descender But if the issue to whom the warranty and Assets descended had brought a Formedon and by judgement had been barred by reason of the warranty and Assets In that case albeit he alieneth the Assets yet the estate Tail is barred for ever for a barre in a Formedon in the descender which is a Writ of the highest nature that an issue in Tail can have is a good barre in any other Formedon in the descender brought afterwards upon the same gift Temps E. 1. gar 89. 34 E. 1. ib. 88. 11 E. 2. ib. 3. 4 E. 3. 24. 5 E. 3. 14. 40 E. 3. 9. 14 H. 4. 39. 24 H. 8. a. Br. 33. 4. M. Dy. 139. l. 10 37 38. Mary Portingtons case Epilogus Nulla virtus nulla scientia locum suum dignitatem conservare potest sine modestia Ratio est anima legis If by study and industry we make not the reason of the Law our own it is not possible for us to retain it in our memories And we must couple arguments and reasons together Quia Argumenta ignota obscura ad lucem rationis proferiaâ—â— reddunt splendida Sir Richard Hankford 11 H. 4. 37. Home ne scavera de quel mettal un campane est sine soit bien bate ne le ley bien conus sans disputation Jeo aye disputir cest matter pur la apprender la ley 41 E. 3. 22. Kirton Vide Sect. 377. Lex plus laudatur quando ratione probatur Lex est sanctio sancta jubens honesta prohibens contraria Vide cest definitio Lib. 1. fo 131. Chudleighs Case Al unique Dieu gloire FINIS An Alphabetical Table A ALien may purchase what and how p. 2 Attainder how it corrupteth the blood 7 Arguments legal 11 Arguments from Statutes ib. Advocatio what 15 123 Advocatio medietatis ib. Armories how descendable 20 Authority with interest or without the difference 63 Attorney to deliver seisin ib. Accessaries where 67 Ages their several purposes in the Law 95 Agreement and Disagreement the time for the confirming Matrimony the equal Obligation 96 Agriculture its commendation 98 Actus Legis 100 Aetas Legitima 101 Alienatio restricta 106 Acquittal quotuplex 107 Appendant and Appurtenant their differences 125 126 Alienee plead where
Leafes for three lives or 21 years who may now make them 66 Lease when it shall begin 58 Livery quotuplex quomodo 60 where not necessary in a thing corporeal 61 287 Livery to whom to be made ib. where not necessary 62 Legis Intentiones 94 Lex est Ratio Artificialis 106 Ligeantia quid quotuplex 134 Ley gager 178 Livery must pass in a present Freehold or not at all 221 222 Logick its use in Law 246 Laches of an infant what it effects 260 Of a Feme where binding where not 261 Livery deins view 270 Livery to one absent cannot be sans fait 403 Lyen personal differs from the Lyen real 448 M Mortmain what its effect 2 Maxime why so called 10 Messuagium what it doth involve in the Law 67 Manerium unde 79 Moratur in lege quid est propter quod quotuplex quomodo 89 Marriage tendred and refused the penalty what 95 Monasteriorum quot 105 Mesne 108 Mayhem quid 132 Manumissio quid quomodo efficitur 143 quotuplex ib. Mesualty revived 160 Mesualty extinct ib. Moyety who hath and who hath not how disposable 193 Mortgage duplici sensu 207 Mulieratus filius barred 206 Modo forma when in pleading they are material 309 Mise what 323 Mortmain an affirmation of the alienation where 372 Manutenentia unde 417 Statuto against it explained 418 N Name Christian and Surname when necessary 3 Nobility the inheritance in it how many ways 14 Nonsuit when 145 Nonsuit regularly no barre ib. where it is a barre ib. Nonsuit before appearance not peremptory why 146 Non Compos mentis who shall plead it 262 Nemo potest c. 339 Nobilities suppressed 436 Nonage tryed by inspection 437 O Office granted when void 3 Office who is capable of it ib. Occupant who against whom of what how prevented 53 54 Ordinarius unde ejus authoritas 105 Obligatio quid 177 Offices forfeited by Non-user where 243 where not ib. Office relinquished what it effects ib. Origo Rei c 274 Omnis Ratihabitio c. 275 where it disableth 317 Officium Ordinarii 379 Officium Judicis de fine levando 439 P Plea of Extra Feodum hors de son Fee the difference 1 Purchase who have capacity 2 for what purpose ib. Purchase by what name good 3 Praecipe of land by what name 4 Probatio quotuplex 6 Praesumptio quotuplex ib. Presumption when it moves a Jury ib. Possibility sur possibility not intended 179 Purchase by ten Conveyances what they are 10 Proximum duplici modo ib. Purchases first regarded 11 Professio fratris where 13 Placitum unde 14 Prerogative what 102 Parsons Ecclesiastical 103 Parliamenti jurisdictio membra alia incidentia 114 Praescriptio quid à quibus 118 ejus incidentia 118 de quibus praescribatur 119 Parliamenti Actor ' differ 120 Prescription how pleadable 124 Praemunire the judgment 135 Protectio quibus efficitur ib. Protectio quotuplex ib. observanda quae 136 137 quam diu durat 272 Professio quod consequentia 139 140 Protestatio quid 128 Pleas where tryable 129 Proprietas cui quotuplex 15◠Parceners who 170 many One Heir 171 they have but one Freehold in respect of a strangers Praecipe ib. Parcenary vel Arithmetica vel Geometrica proportione 172 Partition when good ib. 179 quotifariam 173 when by Writ how returned 175 who are bound 176 Privities differenced 175 Partitione fac by the Stat. 32 H. 8. against whom 181 Parceners by Custome who 182 Per quae servitia who may have it 269 Prisoner not bound where 275 276 how kept 277 Privity where requireable in a Release 293 Privity quadruplex 294 Purpraestura quid 303 Principles in Law not to be changed 310 Placitum unde quomodo 334 335 336 Placitum ambiguum 335 Possession not lost of things that lie in grant 337 Privation and Translation all one with death where 362 Parson his estate to several respects 374 Parson what actions he may have 374 what he cannot have 374 Parson cannot make discontinuance ib. Parson shall have ayd of whom ib. Parsons Ecclesiastical what estates they may make at this day 375 376 Parson may charge the Land how 378 Plenary what c. 379 Presentation revocable by the King 380 Praecipe lyeth against one that hath but a Freehold in Law 402 Praecipe where damages are to be recovered no Tenure no Pleas 406 Q Quarentina what to whom of what 27 Quia Emptores terrar ' its effect 56 Que estate where in what and how pleadable 125 Queen her Prerogative 141 Quaestio Juris per quos c. 128 Quaestio facti per quos c. ibid. Quis Juris clamat where it lieth and what is effected by it 354 Quod ei deforceat where what it is 395 Quare impedit where it lieth 380 R Rent out of what it may bee reserved and out of what not 58 Reservation differs from Exception how 59 Remanere its signification 61 Relief how much paid 87 97 what it is the remedy for it 97 Relief in Soccage quanti 101 de quibus praestationibus ibid. Ransom quid 132 Retraxit quid quotuplex 145 Retraxit a Barre ibid. Rem what quotuplex 148 out of what 149 Reservation of what and to whom 149 150 Void where 215 216 Rents and Annuity differ ib. Remedium duplex 153 Rents extinct and suspended where 156 157 improved ibid. incident to the reversion 350 Release of a Seigniory 159 160 Reversion its incidents 160 Remedies favoured in Law 161 Redisseisin joyntenancy is a generall plea 162 against whom it lieth ibid. Rents what are disseisins of them 166 167 168 Rent granted sans fait 175 Rescous when it may be made 166 167 Release its severall operations in Law 197 by what words it enureth 207 Rent accepted will not make good a void estate 217 Revocation of uses 247 348 Records what they are 276 Roll alterable ibid. Relaxatio quotuplex ratione subjecti objecti 281 Release in Law ib. what 282 284 290 Release to enlarge an estate requires privity 296 Right favored in Law 298 Release of Right and Action differ 299 300 Release to two disseisors who operateth c. 300 301 Right and Title diverse 301 Release to mesualty suspended 307 Release good to a Tenant in Law 313 Release of actions personals how far it extends or reals onely or both their several extents in barre 315 316 317 Robbery what 317 Remainder good though the particular estate be destroyed where 327 Remainder without a particular estate where 328 Right of Advowson at the Common Law 379 Remitter quid quomodo 383 Remitter to Privity is Remitter to Accessory 386 Remitter to Tenant in Tail 390 Remitters favored in Law 394 and differ from Descent ib. Remitter to them in Remainder 395 Remitter works no Remitter till it falls in possession 402 Recovery by a faint Action worketh a Remitter 404 Remitter and Recontinuance differ 408