discern by the Degree of Parentage in the Lord Coke upon Lit. fol. 15. Yet it may be here to the purpose in hand and expected that something more be said concerning the Descent of Lands Therefore take these Rules following borrowed from Mr. Noy that Learned Expositor of the Law Nota That Lands or an Estate of Inheritance which is to a Man and his Heirs for ever doth always descend for it may not lineally ascend from the Son which is seized in Fee and dieth to his Father but descendeth to his Uncle or Brother and to his Heirs which is the next of the whole Blood for the half Blood shall not Inherit but the most worthy of Blood as of the Blood of the Father before the Mother and of the elder Brother before the other if Born within Espousals See Noys Max. p. 22. But note That if Lands be once setled or entailed in the Blood of the Father the Heir of the Mother shall never have them because they are not of the Blood of him that was last seized Idem page 23. For a Descent shall be intended to the Heir of him that was last actually seized Idem p. 22. And if a Man disseiseth another and dieth seized and his Heir entreth or maketh a Feoffment to another in Fee or in Tail and he dieth and his Heir entreth these Descents put the disseised c. from an Entry Noys Max. p. 34. But a dying seized of a Term for Life or of a Remainder or Reversion doth not take away an Entry for he must die seized in Fee Idem pa. 34 35. The Sister of the whole Blood where her elder Brother did enter after the death of his Father shall inherit before his Brother of the half Blood or any other Collateral Cousin Ibid. Yet notwithstanding such a one may be Heir to a Common Ancestor as if the Land Rent Advowson or such like do descend to the elder Son and he die before any Entry or Receipt of the Rent or Presentment to the Church c. then the Heir of him that was last actually seized shall Inherit as the younger Son c. and the reason is because that in all Inheritances in Possession he which claimeth Title thereunto as Heir ought to make himself Heir to him that was last actually seized Idem p. 22 23. Note The Possession of a Lessee for Years or of a Guardian shall invest the actual Possession and Frank-tenement in the elder Brother Idem p. 23. But if he die seized of a Reversion or Remainder or an Estate for Life or in Tail there he which claimeth the Reversion or Remainder as Heir ought to make himself Heir to him that had the Gift Ibid. And so in case of a Purchase it shall descend to the Heir of the Blood of the first Purchasor As if the Father purchase Land and it descendeth to his Son who entreth and dieth without Heirs of the Fathers part then the Land shall descend to the Heirs of the Mother of the Father or of the Father of the Father as the Heirs may be and not to the Heirs of the Mother of the Son although they are more near of Blood to him that was last seized yet they are not of the Blood of the first Purchasor Ibid. If the Heirs be Females in equal degree as Daughters Sisters Aunts c. they shall Inherit together and are but one Heir and are called Parceners Idem p. 24. But note If a Man be seized of Lands or Tenements to hold to him and his Heirs for ever It is the best Inheritance a Man may have and he may Sell or Grant or make his Will of those Lands but if otherwise he die they do descend to his Heir of the whole Blood ut supra with respect to the several Cases c. See Idem pa. 20. Property by Escheat It where the Owner of Land dieth in possession without Child or other Heir then the Land for lack of Heir is said to escheat to the Lord of whom t is holden And it is to be understood That all Lands are said to be holden of the Crown either immediately or mediately and the Escheat pertaineth to the immediate Lord not to the mediate Lord See Camb. Brit. pag. 93. Cowels Interp. Tit. eod ' The lack of Heir happeneth principally in two Cases Magna Charta 31. Fitz. N. B. fol 143. T. c. the one where the Owner of the Land is a Bastard the other where the Owner is attainted of Treason or Felony for neither can a Bastard have an Heir unless he be his Child nor a Man attainted of Treason or Felony have any Heir though he be his own Child Property by Conveyance 4. Divers Estates by Conveyance Is distributed into divers Estates Viz. for 1. Years 2. Life Viz. in 3. Tail 4. Fee simple And these Estates are created either by Word Writing or Record 1. By Word or Parol By Parol as Leases for Years 2. By Writing By Writing as by Indenture Grant c. 3. By Record By Record as by Fine Bargain and Sale c. But note Nota. That Leases parol are void if they exceed three Years from the making and if they do not exceed yet two third parts of the improved value of the thing demised must be reserved to the Landlord See Stat. 29 Car. 2. Leases for Years 1. Of Leases for Years are mostly made by Indenture by words of Demise Grant and to Farm let with such Conditions and Covenants as the parties agree upon Co. Lit. fol. 45. Bro. Leases 60. 67. h. And such Leases be called Chattels Real They are called Chattels Real c. and are not inheritable by Heirs but go to the Executors or Administrators they be saleable for Debt in the Life of the Owner or in the Executors or Administrators hands by Writ of Execution They be forfeited to the Crown by Outlary Are saleable c. or by Attainder for Felony Treason or Praemunire c. 32 L. Ass pl. 6. See Wentworths Executor pa. 76. If a Lease be for 500 Years it is but a Chattel Extents for Debts are of the same Nature as Leases for Years and cannot be entailed Registr Practical p. 192. Of like nature are Interests gotten in other Mens Lands by Extents for Debt upon Judgment in any Court of Record upon Statute-Merchant or of the Staple or Recognizances and the Tenants thereby are called Tenants by Elegit All these also be called Chattels Real and do go to the Executors or Administrators and not to the Heir and are saleable and forfeitable as Leases for Years are Idem pa. ead See more hereafter Ch. 2. Leases for Lives Are called Freeholds 2. Leases for Lives are Freeholds Bract. lib. 2. c. 9. which are also made by Writing or Record And when by Writing there must be Livery and Seisin given at the making of the Lease the manner of which Livery and Seisin is set
down Ch. 4. This Lease for life is not saleable by the Sheriff for Debt but the Land is to be extended Not saleable but extendable at a yearly value Not forfeited except c. to satisfie the Debt neither is it forfeited by Outlary except in Felony nor by any of those means before mentioned to which Leases for years are liable and subject saving only Attainders for Treason Felony or Praemunire and then only to the Crown not to the Lord of the Escheat Vide 25 Ed. 3. Stat. 5. cap. 2. This Estate will go to the Heirs Will go to the Heir if the word Heirs be contained in the Grant if not contain'd Then to the Executor Or Executor in case of no special Occupancy as before Page 2 3. A Lease for life or for years How Leases for Life may be made may also be made by Fine of Record Bargain and Sale or by Covenants to stand seised to uses upon good consideration of Marriage or of Blood See Bro. Fines 106. Note If a Man have a Lease for never so many years determinable upon life or lives which some Persons call a Lease for lives it is but a Chattel Wentworths Executor page 28. Of Entails Entail signifies Fee entailed 3. Entail defined That is Fee scanted or limited and tied to certain Conditions See Cowels Int. Tit. eod These Entails may be created by a Gift with Livery and Seisin to a Man and the Heirs of his Body How created This word Body making the Tail may be restrained to Males or Females to the Heirs of the Bodies of the Husband and Wife to the Body of his Father or Grand-father in Tail special or general When they began Entails began by a Statute in Edward the Firsts time Westm ca. 2. de Donis Conditionalibus for before that Statute Feoffees after they had Issue had power to alien and disinherit the Issue contrary to the mind of the Donees By Statute West ca. 2. And by this Statute they were made so strong as that the Tenants in Tail could not put away the Land from the Heir by any Act of Conveyance or Attainder nor let it or any way charge or incumber it longer than for his own life see the Statute The inconveniencies by that Stature But the inconveniency thereof was very great for by this means the Lands were so surely tied upon the Heir as the Father could not put it from him It made the Son disobedient negligent and wastful Marrying often without the Fathers consent and to grow insolent in Vice knowing there could be no check of disinheritance to restrain him It made also the Owners of entailed Lands less fearful themselves to commit Felonies Murders Manslaughters and Treasons Committing Felonies Murders Manslaughters and Treasons for that they knew that none of their Acts could hurt their Heir in his Inheritance It hindred Men that had entailed Lands that they could not make the least Profit of their Lands by taking Fines or other Improvements Hindred Improvement of Lands For that none upon so uncertain an Estate of the Owners life would give him a Fine of any value nor lay any great Stock upon the Land that it might yield an improv'd Rent And lastly These entailed Lands defrauded the Crown and many Subjects of their Debts Defrauded the Crown and Subjects of their Debts for that the Land was not liable thereto longer than for his own life which made that the King could not safely commit any Office of account to such whose Lands were entailed Hindred the Owners to borrow Mony nor other Men to dare to lend them Mony These Inconveniencies were all remedied by later Statutes The Inconveniencies remedied by Fine c. as namely by the Statutes of 4 Hen. 7. and 32 Hen. 8.36 A Tenant in Tail may disinherit his Son by Fine and Proclamations And by that means also may make it subject to his Debts and Sales Grant by several Statutes And by a Statute made in 26 Hen. 8. cap. 13. Tenant in Tail doth forfeit hiâ— Land for Treason Which make Tenants in Tail forfeit for Treason and they may make Leases And by another Statute made in the 32 of H. 8 cap. 28. He may make Leases gooâ— against his Issue for twenty onâ— years or three lives so it be noâ— his chief Lands or Demeans noâ— a Lease in Reversion nor a lesseâ— Rent reserved than the Tenants for the most part of twenty years before have paid And so as such Lease have not any matter of discharge for doing Wasts or Spoils and by a Statute made the 33 H. 8. Tenants in tailed Lands are liable by Extent for the Kings Debt They are liable to the Kings Debt and are saleable but And by a Statute 13 Eliz. 4. they are saleable for his Arrearages upon his account for his Office not forfeited for Felony So that now it resteth that entailed Lands have these two Priviledges only viz. Not to be forfeited for Felonies nor extended Not extended for Debt after the Parties Death except the Tail be cut off Except the Tail be cut off by Fine or Recovery Note These entails are now usually created by settlements upon Marriage for the benefit of the Posterity and may be cut off as before is shewn And these settlements entailing such Land unto the Issue or Posterity describes the Uses Behoofs Intents Purposes Provisos Conditions Powers and Limitations of the Parties thereto and thereby meant and the Lands are usually made over to Trustees by Fine and Recovery to stand seised to such Uses c. The last and greatest Estate of Land is Fee-simple Fee-simple what which is an Estate absolute to one and his Heirs for ever To one and his Heirs for ever Therefore he that maketh a Lease for life to one or a Gift in Tail may appoint a Remainder after that Estate to another for life or in Tail and a third in Fee-simple but after a Fee-simple he can limit no further Estate And if a Man does not dispose of a Fee-simple by way of Remainder when he maketh the Gift in Tail or for life or for lives then the Fee-simple resteth in himself as a Reversion Co. on Lit. fol. 112 113. Brook Tit. Don. Remainder fol. 245 Glanv li. 7. cap. 1. And the difference between Remainder and Reversion Difference between Remainder and Reversion is this The Remainder is alway a succeeding Estate at the time when the precedent is appointed But the Reversion is the Estate left in the Giver after a particular Estate Note A particular Estate is such as is derived from a General Estate made by him for years life or in tail See hereafter Ch. 5. Bract. lib. 2. cap. 25. Where the Remainder is made with the particular Estate then it must be done by Deed in Writing with Livery and Seisin and if the Giver will after dispose of the
extendeth not by Bargain and Sale Fee-simple passeth tho' Heirs be omitted in the Deed The effect thereof and tho' there be no Livery and Seisin made by the Seller Note No Mannor Lands Tenements or other Hereditaments can pass alter or change from one Man to another whereby an Estate of Inheritance or Free-hold is made or taketh effect in any Person or Persons or any use thereof is made by reason only of any Bargain and Sale How Estates pass by Bargain and Sale therefore except the same be made by Writing indented sealed and inrolled in one of the Courts of Record at Westminster or within the same Court or County where the Tenements so bargained do lie Inrolment to be made how and when before the Custos Rotulorum and two Justices of Peace and the Clerk of the Peace or two of them whereof the Clerk of the Peace to be one and that within six Months after the date of such Writing indented See Stat. 27 H. 8. Noys Max. page 56 57. The Inrolment shall be intended the first day of the Term. When it shall be intended And shall have relation to the delivery of the Deed against all Strangers Noys Max. page 57. Hath relation to the delivery A Man by Deed Bargains and Sells his Land to one Two Bargains and Sales made of the same Lands to two several Persons who shall have it and before the Inrolment of the Deed sells it another and the last Deed is the first inroll'd and afterwards the first Deed is also inroll'd within the six Months the first Buyer shall have the Land 2 And. 161. Moor 40 41. 2 Inst 675. Hob. 165. Dy. 218. 4. Co. 71. If the Bargainee after the Bargain and before the Inrolment sell the Land to another and afterwards the Deed is duly inrolled the Sale by the Bargainee is good 2 Inst. 675. 2 Cr. 52. 1 Cro. 218.110 Rol. 424. 1 Inst 186. Nota The Buyer of a Reversion on Life or Lease for Years shall have the Rent upon the first Lease without Attornment or Inrolment 8 Co. 93. V. Plow 421. Jon. 206. 2 Inst 672. 6 Co. 68. 3 Cro. 166. Covenants to stand seized to Uses A Covenant to stand seized to uses Covenants to stand seized to uses how is in this sort A Man that hath a Wife and Children Brothers and Kinsfolks may by Writing under his Hand and Seal agree That for their or any of their Preferment he will stand seized of Land to their use either for Life in Tail or Fee-simple as he shall think fit or see cause Upon which Agreement in Writing there ariseth an Equity or Honesty that the Land shall go according to his Agreement Nature and Reason requiring and allowing these Provisions of which Equity and Honesty is the Use The Use how ariseth And the Use being created in this sort the Statute of 27 Hon. 8. before-mentioned conveyeth the Estate How the Estate setleth of the Land as the Use is appointed and so this Covenant to stand seized since the said Statute is a Conveyance of the Land But this differeth from a Bargain and Sale How Covenants to stand seized differ from Bargains and Sales in that this needeth no Inrolment as that doth neither is tied to be in Writing indented as the Bargain and Sale must And if the Party to whose use he agreeth to stand seized of the Land be not Wife Child Uncle or Cousin or one that he intendeth to marry then will no Use arise and so no Conveyance for although the Law allow these weighty Considerations of Marriage and Blood to raise Uses Considerations to raise Uses yet doth it not so of trifling Must not be trifling Considerations as of Old Acquaintance Schooling Service and the like 1 Co. 176. 2 Co. 15 76. Moor 504. con 3 Cro. 394. Moor 102. But where a Man maketh an Estate of his Land to others by Fine Feoffment or Recovery Upon a Fine Feoffment or Recovery a Man may limit the Use he may then appoint the Use to whom he listeth without respect of Kindred Marriage Mony or other Thing for in that case his own Will and Declaration guideth the Equity of the Estate Ibid. It is not so when he maketh no Estate but agreeth to stand seized nor in Bargain and Sale when he hath taken any thing Note The Statute 29 Car. 2. to prevent Frauds c. Enacts That all Declarations or Creations of Trusts of Lands or Hereditaments must be declared in Writing or by Will in Writing or else void except Trusts arising by Implication of Law which shall be of the same effect as if the Statute had not been Also all Grants and Assignments of Trusts must be in Writing signed by the Party granting or assigning by his last Will or Devise or else to be void If a Man Covenant Covenant to raise an Use with his Brother and two Strangers in consideration of the Love to his Wife and Children their Preferment and Living and to settle his Lands in his Name and Blood to stand seized of the Lands to the use of himself for Life and after his decease to the use of his Wife and after her decease to the use of the Covenantees and their Heirs upon Trust c. No Use ariseth to these other Covenantees but only to the Brother because they are Strangers to the Consideration No Use ariseth to them that are Strangers to the Consideration 1 Cro. 529. Jon. 418. Plow 307. Yelv. 51. In consideration that the Land shall remain in his Name c. And the Use is limited to the King No not to the King to preserve the Tail it will not raise an Use to the King 2 Co. 15. What this Use is and when first began and how united to the Possession you have read immediately before Gift or Grant The six Conveyances before treated are the Chief and of greatest moment and most largely to be treated the next Conveyance in order proposed is a Gift or Grant which differs from a Feoffment as is before explain'd A Grant A Grant what Concessio as Mr. West saith in his Symb. part 1. Lib. 2. § 290. signifieth permission sufferance leave licence yielding or giving over of a Thing but especially taken it signifieth a Gift in Writing of such Things as cannot aptly pass by Word only without Writing as Rents Reversions Services Advowsons in Gross Common in Gross Tithes c. or made by such Persons as cannot give but by Deed as the King and all Bodies Politick The generall signification as Mayors and Commonalities Deans Chapters c. which Differences be oftentimes neglected and then it is taken generally to signifie every Gift whatsoever made of any Thing by any Person whatsoever and he that granteth or giveth is term'd the Grantor or Donor and he to whom the Grant or Gift is made the Grantee or Donee An Instrument of Grant is a
Deed containing the Description of such a Gift or Grant Attornment necessary in Grants And note That Lands and Tenements and such things as naturally lie in Grant cannot be transferred from one to another by bare Grants of the Parties without the Attornment and Agreement of others the Nature and Effect whereof is after laid down Note A Grant must be certain Certainty Noys Max. p. 61. A Man cannot charge or grant that which he never had Ibid. p. 62. A Thing that cannot begin without a Deed may not be granted without a Deed Things beginning by Deed how they must be granted and every Thing that is not given by delivery of Hands must be passed by Deed Ibid. All Things that are incident Incident to others pass by the Grant of them that they are incident unto Ibid. A Man by his Grant cannot prejudice him that hath an elder Title No prejudice to an elder Title Ibid. 63. If no Estate be expressed in the Grant How the Estate shall be limited and though Livery and Seisin be made yet the Grantee hath but an Estate for Life Ibid. But if the words manifest the lawful Will of the Grantor the Estate shall be taken according to his intent Ibid. All Grants shall have a reasonable Construction The Construction of Grants and taken strongest against him that made them and most beneficial to him to whom they are made Ibid. There must be Attornment Attornment to Grants of Reversion or Rents otherwise nothing passeth except it be by matter of Record Ibid. Lease for Years The next of these Conveyances is a Lease for Years Lease for Years and he that letteth is called the Lessor and he that taketh by the Lease is termed Lessee Certainty thereof A Lease for Years must be for time certain and ought to express the Term and when it should begin and when it should end certainly And therefore a Lease for a Year and so from Year to Year during the Life of J. S. is for two Years Noys Max. p. 65. It may be made by Word or Writing as before Lease at will A Lease from Year to Year so long as both the Parties please after entry in any Year it is a Lease for that Year c. till warning be given to depart 14 H. 8. 16. Noy Ibid. A Lease beginning from henceforth How they shall commence shall be accounted from the day of the delivery Ibid. From the making From the making shall be taken inclusive from the day of the making or of the date exclusive Ibid. If the Habendum of a Lease be for Term of one and twenty Years without mentioning when it shall begin it shall then begin from the delivery From the delivery Co. Lit. fol. 46. Herns Law of Conveyances p. 15. 131. If Lands descend to the Heir before his Entry Lease made by Heir before Entry he may make a Lease thereof Noys Max. p. 65. Tenant for Term of Years may enter When the Tenant may enter when he will the death of the Lessor is no let and he may grant away his Term before it begin Noys Max. p. 30. But before he enter he cannot surrender When surrender nor have any Action of Trespass nor take a Release Ibid. He is bound to repair Repairs the Tenements And if Tenant for Life or Years Term forfeited granteth a greater Estate than he hath himself he doth forfeit his Term Ibid. View of Reparations and Distress Nota The Lessor may enter to see what Reparations or Wast there is and he may distrain for his Rent or have an Action of Debt Ibid. The nature of Leasts And note also That Leases for Life or Years are of three Natures some be good in Law some voidable by Entry and some void without some in futuro and some in praesenti of all which and oâ— the Dates Commencements Habendums continuance and determination of Leases you may find many Examples in a Treatise for that purposed collected called Landlords Law p. 137. c. See more of the before Ch. 1. Of a Release Release defined A Release is an Instrument whereby Estates Rights Titles Entries Actions and other Things be sometimes extinguished sometimes transferred sometimes abridged and sometimes inlarged West Symb. part 1. Lib. 2. § 466. A Release made after a Lease for Life or Years amounteth to a Feoffment It amounteth a Feoffment as if I let Land to a Man for Years or Life and after release to him all my Right in the Land Example to have and to hold to him and his Heirs hereby he hath a Fee-simple Co. Lit. f. 207. a. Finch L. 1. c. 5. pag. 67. Dyer 263. But if I Release to him all my Right which I have in the Land Words to be observed without using any Words in the Release then here he hath only an Estate for Life Ibid. And note That a Release is the giving or discharging a Right or Action which a Man hath or claimeth against another or out of or in his Lands Noys Max. pa. 74. And a Man may not release upon a Condition nor for time How a Release shall enure nor for part but either the Condition is void and the time is void and the Release shall enure to the Party to whom it is made for ever for the whole by way of Extinguishment Ibid. p. 57. But such Release by Deed indented is good Ibid. Words to be observed A Release to charge an Estate ought to have these words Heirs or words to shew what Estate he shall have Ibid. Void Release A Release made by him that at the time of the making thereof had no Right is void Ibid. page 74. Void Release And a Release made to him that at the time of the Release had nothing in the Lands is also void it behoveth him to have a Freehold or a Possession or Privity Ibid. p. 75. The common Course of passing Land by Lease and Release For which purpose it is now the course in passing Land by Lease and Release first to execute a Lease for a Year or the like Term to the intent and purpose that the Lâ—ssee may be in the actual possession of the Lands intended to be released and thereby and by force and vertue of the Statute 27 Hen. 8. for transferring Uses into Possession be enabled to take a Grant or Release of the Reversion and Inheritance of the said Land to the use of him and his Heirs A Release made to him that hath a Reversion Where it helpeth the Free-hold or a Remainder in Deed shall serve and help him that hath the Franktenement so shall a Release made to a Tenant for Life or a Tenant in Tail How it shall inure inure to him in the Reversion or Remainder if they shew it and so to Trespassors and Feoffors but not to the Disseisors Noys
after his death she may enter though she had joyn'd in the Surrender and notwithstanding that She is not bound he to whom the Surrender was made died seized of the Land in Fee and his Heir be in by descent Perkins sect 112. She shall be bound But if a Feme-sole who is Lessâ—… for Years of House or Land taketh a Husband who surrendreth anâ— dieth before the Years are out here she shall be bound by this Surrender Ibid. sect 113. Good Surrender And if Tenant in Dower iâ— Land granteth her Estate unto him in the Reversion this is a Surrender Ibid. 623. If one hold Lands for Life How surrender taketh effect the Remainder to a Stranger for Years and if the Lessee for Life surrendreth unto him in Remainder it shall not take effect because that an Estate for Life cannot drown in an Estate for Years Perkins sect 589. If a Copyholder for Life surrender to the use of another Estate detertermined who is â—dmitted by this the Copyholders Estate is clearly determined But if a Copyholder in Fee surâ—ender to the use of another for Life Revived after his Death he shall have â—t again 1 Cro. 148. A Joynt-Tenant Joynt-Tenant cannot surrenâ—er to his Fellow Noys Max. 73. Lessee for Years Lessee for Years cannot surrender â—efore his Term begin though he â—ay grant also he cannot surrenâ—er part of his Lease Ibid. The Husband may surrender the Wifes Dower for his Life Husbands surrender of his Wifes Estate as beâ—ore and her Lease he may surrenâ—er for ever Noy 74. Note How it effecteth That those things which â—annot take effect without Deed â—annot be surrendred without Deed â—xcept in some special Cases By Deed. And therefore if a Man seized of Rents Tithe Common c. granteth the same for Life or Years the Grantee cannot surrender them without Deed Perk. sect 581 582 584. But that those things that may not be granted without Deed may be determined by the surrender of the Deed Surrender of Deed. to the Tenant of the Land Noys Max. p. 73. Confirmation Defined Confirmation is a strengthening and making good of an Estate formerly had and yet voidable or defeasible though not presently void by him which hath a better or longer Estate in the thing granted than the Tenant thereof hath Lit. sect 522. West page 1. Lib. 2. sect 457. And it is made by the words have ratified approved and confirmed similia Defined Noy in his Max. saith Confirmation is when one ratifieth the Possession as by Deed to make his Possession perfect or to discharge his Estate that may be defeated by anothers Entry Noys Max. p. 76. Landlord and Tenant p. 106. saith A Confirmation is the Conveyance of an Estate or Right that one hath unto Lands or Tenements to another that hath the Possession thereof or some Estate therein Defined whereby a voidable Estate is made sure and unavoidable or whereby a particular Estate is increased and â—nlarged and though sometimes it may pass by the words dedi conâ—essi yet the most proper words â—re confirmavi ratificavi approâ—avi which do signifie ratum firâ—um facere supplere omne defectum â—nd he that makes the Confirmaâ—ion is called the Confirmer and â—e to whom 't is made the Conâ—rmee Co. Lit. 295. Bract. 1. Lib. 2. â—8 And there are two kinds of Conâ—â—rmation Two sorts of Confirmations Confirmation in Deed â—he other implied by Law Conâ—irmation by Deed is when the Act done or Deed made is inâ—ended for a Confirmation Conâ—irmation implied Implied is when the Law â—y construction makes a Confirmation of a Deed made to another purpose and both these are always in Writing Co. Rep. 9. fol. 142. Co. Lit. fol. 295. Shephards Touch-stone C. 18. p. 311. Where it effecteth If a Tenant for Life will granâ— a Rent-charge in Fee then hâ— in the Reversion may confirm the same Grant where a Man by his Entry may defeat an Estate there by his Deed of Confirmation he may make the Estate good Noyâ— Max. 77. The words A Confirmation to charge aâ— Estate must have words to shew what Estate he shall have Ibid. A Confirmation cannot chargâ— Cannot effect an Estate that is determined by express Condition or Limitation Ibid. Confirmation to Tenant for Life of his Estate only for an hour shall be good for Life For an hour good for Life and so 〈◊〉 made to a Tenant in Fee it shalâ— be good for ever Ibid. A Lease for Years may be confirmed for a Time or upon Condition Upon Condition or for a piece of the Land Ibid. But if a Franktenement be as afore it shall enure to the whole absolutely Noy Ibid. To confirm the Estate of Tenant for Life to his Heirs Word Heirs to be observed cannot be but by Habendum the Land to him and his Heirs and therefore it is good to have such an Habendum in all Confirmations Ibid. In a Confirmation new Service may not be reserved and old may be abridged Ibid. Confirmation hath relation to release and where he that as before hath a better Title in the Land than the Tenant releaseth to the Tenant this is a Confirmation West pa. 1. Lib. 2. sect 457. A Confirmation made by him that at the time of the making thereof had no Right is void Noys Max. p. 74. And so if a Right come to him afterwards unless it be with Warranty and then it shall bar him of all Right that shall come to him after the Warranty made Ibid. Where voidable But note A Confirmation made to one Disseisor shall be voidable to the other so shall not a Release Ibid. p. 77. Note That if the King for him and his Heirs grants Catalla felon ' fugitivorum or the like which is in grant and dies the Grantee needs no Confirmation of the new King Where necessary but if it be a Fair or Market or the like and it is abused or misused as it may be or if it be a judicial or ministerial Office or Power as to be a Justice oâ— Peace Escheator or the like there he ought to have a Confirmation of the new King See Brooks Tit. Confirmation 19 29. 1 R. 3.4 In a Confirmation it is not amiss in the Premisses of the Deed specially to recite the Estate Estate to be recited of the Tenant which must be confirmed and also the Estate of him that shall confirm and to expresâ— the Consideration thereof if any such be West Symb. part 1. Lib. 2 sect 457. Revocation and New Declaration This seems to be dependant upon some former Deed or Conveyance being a Reservation by Covenant to revoke a Precedent and by Declaration to create a new Estate of the Lands after which the Lands settle accordingly Will. The last of these Conveyances â—s a Will in Writing Wills in Writing which course
supra And note that Livery of Seisin is of two sorts Livery of Seisin is two-fold viz. in Law and in Deed Noys Max. p. 160. Livery of Seisin in Law is termed Livery of Seisin within the View which is when a Man maketh a Deed of Feoffment and delivers Seisin within the View the Feoffee being afraid to enter Ibid. 163. And note This Livery within View Livery within the View is good if the Feoffee do enter in the Life-time of the Feoffor Idem p. 59. And yet it is said that a Livery in View or Law may sometimes be perfected by an Entry in Law Perfected by Entry in Law which is when the Feoffee being afraid to enter as before maketh continual Claim of the same 38 Ass pl. 23. And it is said that no Man can constitute another to receive Livety for him within the View No Attorny in Livery in View nor yet to deliver for none can take by force or virtue of a Livery in Law but he that taketh the Freehold himself Et sic e contra Noys Max. p. 163. Livery and Seisin in Deed Livery in Deed. is actually done either personally or by Attornies as is before explained Attornment The end of Attornment is to perfect Grants Defined and therefore may not be made upon Condition or for a Time Noys Max. p. 64. but it shall enure to the whole absolutely Attornment is the Agreement of the Tenant to the Grant by Writing or by Word as to say I do agree to the Grant made to you or I am well contented with it or I do Attorn unto you or I do become your Tenant c. or delivering a Penny unto the Grantee by the Tenant by way of Seisin of a Rent and to pay or do but one Service only in the name of the whole it is good for all Ibid. p. 63 64. Where it effecteth Lands and Tenements and such things as naturally lie in Grant cannot be transferred from one to another by bare Grants of the Parties without the Attornment and Agreement of others as of the Tenant to the Grant of the Seigniory or of a Rent or the Agreement of the Donee in Tail or of the Tenant for Life or Years to a Grant of a Reversion or Remainder made by the Donor or Lessor to another as Where necessary Where he that hath an Estate in Reversion or Remainder after an Estate for Life or Years doth grant or give the same away here the Tenant of the Land must give his consent to such Grant or Gift or else generally the same is not good and this yielding of consent is called Attornment See Terms del Ley Co. Lit. fol. 309. pl. 25. Attornment is either Actual or in Law Twofold Actual Actual is an expressed consent to the Grant as before Lit. 551. Plow 25. a. 344. a. Attornment in Law In Law is where the Person that ought to attorn doth not expresly declare his consent but doth some other Act as in Law sufficiently implieth an Agreement as if a Lease be made for Life or Years and after he that hath the Reversion or Remainder granteth the same to his Lessee who accepteth the Deeds These and such like be Attornments in Law West Symb. Lib. 2. sect 383. To the making good of an Attornment Requisits to make a good Attornment where it is requisite divers Things are required 1. It must be made by the Person that ought to make it 2. It must be made to the Person that ought to take it 3. It must be made in due time 4. If it be an express Attornment the Tenant must have notice of the Grant of the Reversion c. to which he must Attorn but of Attornment in Law there notice in all Cases is not necessary 5. It must be done in such manner as the Law doth prescribe And observe as before that it may be made either by Words or Deeds By Word or Deed. without Writing or by Deed or Writing and this is the safest way By Word And any Word written or spoken by the Tenant after he hath knowledge of the Grant of the Reversion which do import an Assent or Agreement to it will make a good Attornment in Fact or in Deed as to say I do Attorn or turn Tenant to you according to the Grant or if he do pay all or any of the Rent or do any part of the Service as before this is a good express Attornment and is best of all when it is made by Words and Deed Best by Word and Deed both or Sign both for then the Witnesses will best remember it Co. Lit. fol. 309 310 315. Plow Com. 344. Land-lords Law p. 127. 128. When to be made Where Attornment is necessary it must be made in the Life-time of the Parties Grantor and Grantee for if either of them die before Attornment be made the Grant is void but if the Tenant die before he Attorn he that hath the Estate may Attorn and it is good or if the Tenant grant over his Estate his Assignee may Attorn Co. Lit. fol. 315. a. Perkins sect 231 263. Lit. Tenures 110. a. Co. Rep. f. 8. Noys Max. p. 64. It seems that Attornment is not necessary Where necessary but to have Avowry or an Action of Wast 2 E. 6. Brook 45. Note Where not That when no attendency nor payment is to be made by the Tenant there the thing passes without Attornment 31 H. 8. Brook 59. Where Attornment is necessary in Law or in Deed Note See Land-lords Law p. 129 130 131 132 133 134 135 136. This Attornment must be indorsed on the Deed or else declared by a Deed and may be done in this manner Indorsement for one Tenant Memorandum That the within named A. B. being Tenant for Term of Life c. or being present Tenant c. as the Case requires of the Lands Tenements and Hereditaments c. understanding the effect of the within written Grant thereof made unto the within named C. D. did the _____ day of _____ Anno _____ assent and agree unto the same Grant in every respect as the same is within written and did therefore Attorn and for proof thereof did give unto him the said C. D. in the name of Attornment the Sum of 6 d. in the presence of us whose Names are subscribed A. B. C. D. E. F. c. Or thus by divers Tenants themselves For divers Tenants We whose Names are hereunder subscribed being the present Tenants c. of c. understanding c. do assent c. and do therefore Attorn and in Testimony of such Attornment each and every of us did give c. and also have hereunto subscribed our Names the _____ day of _____ Anno Domini 1688. Witness A. B. C. D. E. F. Or thus Memorandum That the Persons whose Names are under written did the _____ day of _____ Anno Domini
in Tail sell theâ— the Land to remain to another is avoid Remainder Ibid. In every Remainder five Thing are requisite Five Things to be observed 1. That it depend upon somâ— particular Estate Ibid. page 123. 2. That it pass out of thâ— Grantor Donor or Lessor at thâ— time of the creation of the particular Estate whereon it must depend Ibid. 3. That it vest during the particular Estate or at the instant time of the determination thereof Ibid. 4. That when a particular Estate is created there be a Remnant of an Estate left to the Donor to be given by way of Remainder Ibid. 5. That the Person or Body to whom the Remainder be limited be either capable at the time of Limitation thereof or else to be thereof capable during the particular Estate See Noys Max. page 124 125 126 127. where a Remainder taketh effect and it is void Of Reversion A Reversion Defined is the residue of an Estate that is left after some particular Estate granted out in the Grantor Example As if a Man grant Lands for Life without further granting the Reversion of the Fee-simple is in the Lessor Noys Max. p. 32. Also it commenceth after a Remainder May commence after Remainder Example As when he in Fee-simple leaseth for Life to one or in Tail he may appoint a Remainder after that Estate and a third in Fee-simple for if he doth not dispose of the Fee-simple by way of Remainder when he maketh the Gift for Life or in Tail then the Fee-simple resteth in himself as a Reversion See antea fol. 5. Nota. Note That after a Fee-simple he can limit no further Estate Ibid. Of Fee Defined The division of Fee in divers respects are many but for our present purpose it is sufficient to divide it into two sorts First Fee-simple or absolute Secondly Fee-Tail or Fee-Conditional Fee-simple Fee-simple is that whereof we are seized to us and our Heirs for ever Fee Tail Fee Tail is that whereof we are seized to us and our Heirs with Limitation that is the Heirs of our Body See Lit. ca. 2. Lib. 1. And note Two-fold That a Fee tail is either General or Special General General is where Land is given to a Man and the Heirs of his Body not naming upon what Woman to be begotten Therefore if he marry one or more Wives and have no Issue by them and again marryeth another by whom he hath Issue this Issue shall Inherit the Land upon such Grant Special Special is when it is certainly set down of whom the Issue shall come as when Lands are given to a Man and the Heirs of their two Bodies Lit. ut supra and this special Estate is either expressed or implied Expressed Expressed where it specially limited what Issue shall inherit Implied Implied as in Frank-marriage as where upon Special Tail either of the Parties die and have no Issue between them the surviving Party is improperly called a Tenant in Tail after possibility of Issue extinct See West Symb. part 1. Lib. 1. sect 40. Thus I have made good to you the Subject Matter promised in the Frontispiece which might have been much enlarged by proper Precedents but would much have shadowed that Light which hereby is intended Whereto for the Affinity of the Subject is added a brief Dicourse shewing by what ways Property in Goods and Chattels is or may be gotten CHAP. VI. Shewing the several ways whereby a Man may get Property in Goods or Chattels Property in Goods and Chattels is gotten ten ways viz. 1. By Gift 2. By Sale 3. By Stealing 4. By Waiving 5. By Straying 6. By Wreck of the Sea 7. By Forfeiture 8. By Executorship 9. By Administration 10. By Legacy Property by Gift The Property of Goods may pass by Gift Property by Gift either by Word or Writing If there be a general Gift made of all his Goods This is suspicious to be done of Fraud to deceive Creditors Fraudulent Deed of Gift And if a Man make a Deed of Gift being in Debt to prevent the taking of his Goods in Execution for his Debts this Deed of Gift is void Void against the Creditors as against those to whom he stood indebted but as against himself his Executors or Administrators or any other to whom he afterwards shall sell or convey them this Gift is good by that Deed Good against the Debtor 50 E. 3.6 13 El. 5. 27 El. 4. Property by Sale Property by Sale Bona fide good By Sale any Man may convey his own Goods to another and although he fear Executions for Debt yet he may sell them for Mony at any time before the Execution served so there be no reservation of Trust between the Parties as that of paying the Mony he may have the Goods again for that Trust in such a Case doth prove plainly a Fraud to prevent the Creditors from taking the Goods into Execution Note The Goods are liable to an Execution so soon as it is delivered to the Sheriff by a late Act. Property by Stealing c. If a Man steal away Goods or take them from me in jest Goods stollen or taken in jest Sold in a Market c. bars the Owner or borrow them of me or take them as a Trespassor and not as a Felon and carry them to a Fair or Market and there selleth them this Sale doth bar me of the Property of my Goods saving that if it be of a Horse 2 3 P. M. 7. he must be ridden once over in the open Market or Fair between the Hours of Ten and Sun setting and to be tolled in the Toll-Book and the Seller must bring one that will a vouch his Sale who is known to the Toll-Book Keeper 31 Eliz. 12. or else this Sale bindeth me not And for any Goods where the Sale in Market or Fair shall bar the true Owners being not the Sellers of their Property Sale to bar the Owner must be a Market where usually such Things were sold it must be a Sale in a Market or Fair where usually Things of that nature are sold So that the Buyer know not of the former Property and do pay Toll and enter it Plate must be sold at the Goldsmiths Stall and not in his inner Shop Noy Max. p 90. Examples of Sale If a Man steal a Horse and sell him in Smith-field as before the true Owner is barred by the Sale But if he sell the Horse in Cheap-side or Newgate Market or Westminster Market the true Owner is not barred because those Markets are usually for Herbs Fishes and such like and not for Horses So whereas by the Custom of London every Shop is a Market all days of the Week except Sundays and Holy-days yet if a piece of Plate or Chain of Gold or Pearl that is stollen or borrowed be sold in a Drapers Shop or in a
THE ART OF CONVEYANCING ARS CLERICALIS THE ART OF Conveyancing EXPLAINED Being a Collection gathered with great Care and Industry out of the many Books of the Law Wherein the Nature and Effect of such Deeds and Instruments by which Lands are conveyed from one Man to another are clearly demonstrated Also the Forms and orderly Parts which ought to be observed in Deeds and Conveyances are laid open and explained By R. G. Gent. LONDON Printed by the Assigns of Richard and Edward Atkins Esquires For Thomas Basset at the George near St. Dustans Church in Fleet-street 1690. TO THE READER THE Law of England consists of several curious Parts or Branches some whereof have relation to the Theory others more immediately to the Practice Of the later not one hath given greater Reputation or contributed more to the enriching its Professors than the Art of Conveyancing which proceeds chiefly from the Necessity attending it in regard no Estate or Property can possibly be setled or secured without it There are several Books indeed in all Volumes already extant of Conveyanceing but many of them being desicient either in Matter or Form heap't together without Judgment and backt with no manner of Authority do instead of instructing the Tyro's of the Law lead them into manifest Errors neither is any of them express upon this Subject though most of them treat something thereof Therefore to demonstrate to the World by a small Essay what may be further performed in this Nature by more time and thought this little Tract hath ventured abroad â—eing a brief Collection out â—f those many Books where â—ou have a Prospect altogether and in Order not â—rowded with Precedents nor mixt with improper Matter but full and clear to the understanding of the whole Art and scarce a Paragraph in the whole but what is warranted by two or three Authorities It was chiefly intended for a help to Young Clerks though perhaps none of the old Ones will have occasion to repent the perusing it 'T is true there is no new Invention in it as to Matter neither indeed can it be expected in Books of this Nature which are or ought to be govern'd by Authorities and Precedents and as to the Form or Method 't is wholly new and perhaps more compact and orderly than any Book of this kind Vale fruere THE CONTENTS THIS Treatise is divided into six Chapters CHAP. I. Shews how Property in Lands is â—en and transferred from one to â—ther CHAP. II. Shews the Nature and Effect of such â—â—eds by which Lands usually pass â—nd are conveyed from one to anoâ—hâ—r CHAP. III. Shews the Forms and orderly Parts â—hich ought to be observed in Deeds â—nd Instruments CHAP. IV. Shews what Things are required tâ— the perfecting a good Deed or Instrument CHAP. V. Shews the Form and Effect oâ— Livery of Seisin and Attornment c. And what is a Reversion Remainder and particular Estate c. CHAP. VI. Shews the several Ways whereby Men get Property in Goods and Chattels Advertisement LEgis Series Or the Process of the Law in order with some Entries both in Kings Bench and Common Pleas useful for Young Clerks to direct them in their first â—teps to Clerkship per R. G. Gent. price 6 d. CHAP. I. Shewing how property in Lands is gotten and transferred from one to another Of Property in Lands THE intent of this Treatise being to lay down and explain the Art of Conveyancing whereby the property in Lands is transferred from one to another I shall first shew the several ways by which property in Lands is or may be gotten And note That property in Lands is gotten and transferred from one to another four ways Viz. 1. Entry 2. Descent 3. Escheat 4. Conveyance I. Property in Lands by Entry Property by Entry formally and strictly taken was where a Man found a piece of Land that no other possessed or had Title to and entred thereon This Entry gained him the property of it and this seemeth to be grounded upon the Text Terram dedit Filiis hominum c. In the Case of Occupancy Occupancy which ariseth by Conveyance as Where Lands are conveyed to A. for the Life of B. and A. dies without making any Estate or Assignment thereof here whosoever first entreth after the death of A. getteth property in that Land during the Life of B. for the Land cannot revert to him that leased to A. till B. die and to the Heir of A. it cannot go for it is not any Estate of Inheritance nor descendable to the Heir without special words And as for the Executors of A. they cannot have it for that it is not an Estate Testamentary to go to them as the Goods and Chattels do so as in truth no Man can entitle himself to the Land and therefore the Law preferreth him that first entreth and he is called Occupans and shall hold it during the Life of B. but yet such a one must pay the Rent perform the Conditions and do no wast or harm N. B. fol. 83. Co. Lit. 41. But this Estate of the Occupant may be prevented at the making of the Grant 1. Occupancy how prevented by adding these words To have and to hold to A. and his Heirs during the Life of B. for then t is descendable to the Heir It may also be prevented after â—he making of the Grant or Lease for Life though the word Heirs be â—mitted by assigning the Estate â—ver to some Friends and their Heirs 〈◊〉 trust during the Life of B. c. â—o Lit. fol. 41. Shepards Touchstone â—ag 108. And note that the Statute 29 Car. 〈◊〉 29 Car. 2. hath provided That the Lessee â—r Grantee may devise such Estate or anothers Life by his Will in â—resence of three or more Witâ—esses If he devise it not Ibid. and his Heir â—ecome Occupant it shall be chargeble in his hands as Assets by Deâ—ent as in case of Lands by Fee-â—mple Stat. eod ' And in case there be no special Occupant Ibid. then it shall go to the â—xecutors or Administrators of the party that had the Grant and shall be Assets Stat. eod See the Statute Property by Descent 2. Inheritance is Fee-simple to a Man and his Heirs for ever Property in Lands gotten by Descent is where a Man having Lands of Inheritance dieth not making any disposition thereof but leaveth it to go as the Law appointeth and the Law appointeth that it be cast upon the Heir that is called a Descent in Law and upon whom this Descent is to light is the question Now Descent is either Lineal Lineal Descent or Collateral Lineal Descent is conveyed downward in a right-line from the Grand-father to the Father and from the Father to the Son and from the Son to the Nephew c. Collateral Descent Collateral Descent is springing out of the side of the whole Blood as Grand-fathers Brother Fathers Brother c. as you may plainly
Render what Estates are to be created thereâ—y and of the Reservation of Rents â—omine poenae and Clause of Distress â—nd Services with the Clause of Warranty For which it is to be â—oted That when a Fine is levied to â—ivers Cognizees the Right shall be â—â—mited How the Right shall be limited 3 H. 6. 42. 24 E. 3. 64. to one of them only and â—he Estate limited to his Heirs onâ—y whose Right it is knowledged to â—e Ibid. As this Et est Concordia talis Example scilicet quod â—red ' A. Cogn ' Tenementa pred' cum perâ—in ' esse jus ipsius B. ut illa quae iidem B. C. habent de dono pred' A. Et â—ll ' remisit quiet ' claim ' de se Haeredibus suis prefat ' B. C. Haeredibus ipsius B. c. And likewise the Release Release how to be 21 Ed. 3. 33. and Warranty must be from the Heirs of one of the Cognizors for in a Fine from divers the Fee must be supposed to be in one of them only West Pres Tit. Fines § 30. Of what things it may be And a Concord cannot be of any other thing than is contained in the Writ of Covenant and not of a Foreign thing if it be not consequent Ibid. And if divers joyn in a Fine the Warranty The Warranty how to be made must be by them and the Heirs of one of them which is the Owner of the Land 44 E. 3. 1. And note That Warranties Divers sorts of Warranties be sometimes General That is against all Men some against all except certain Persons some against certain Persons only some against every Cognizor and his Heirs severally some against one of the Cognizors and his Heirs only some of all the Lands in the Fine some of all except part and some of part only certainly expressed West Tit. Fines § 147. He who acknowledgeth the Fine is called Cognizor and he to whom the Fine is levied is called the Cognizee and it is requisite that either the Cognizor or Cognizee be seized of the Lands in the Suit at the time of the levying The Partles must be seised at the time of levying thereof otherwise the Fine is void 41 Ed. 3. 14. 22 H. 6. 13. 3 H. 6. 27 H. 8. 4. 20. 37 H. 6. 34. 22 H. 6. 57. See West Exception Tit. eod unless it be by a Vouchee after he hath entred into the Warranty to the Demandant for he being Tenant in Law may confess the Action but a Fine by Vouchee levied to a Stranger is void 8 H. 4. 5 H. 7. 40. See West Ibid. All Persons Male and Female may be Cognizors Who may be Cognizors except Ideots Madmen Lunatiques Men having the Lethargy Blind Deaf or Dumb and these be hindred by nature Friers Nuns Monks who are dead in Law Exceptions of Persons dead in Law c. and Persons having Joynt-power as a Bishop without the Dean and Chapter a Dean without his Chapter a Parson Vicar Prebendary without their Ordinary a Mayor without his Commonalty Masters of Colledges without their Fellows and the single Members of every Corporation or Society and these be hindred by the Law West ibid. Cautions Of Husband without his Wife A Husband without his Wife ought not levy a Fine of her Lands for she and her Heirs may avoid it after his death 32 H. 8. cap. 28 12 E. 4. 12. 42 E. 3. 20. Care to be taken by Infants Infants i. e. all Persons under one and twenty Years ought to have a special care how they levy Fines for they must be reversed again during their Infancy otherwise they are good and the Court must see them at such reversal thereby to judge of their Age 50 E. 3. 5. 17 E. 3. 52. 78. Drunken and old Doters not capable It ought to be regarded that Drunken-men and old doting Persons be not Cognizors for their Fines are not reversable 17 E. 3. 5. 8. 17 Ass 17. Care to be taken by a Married Woman under Age. A Married Woman under Age ought to take heed that she levy not a Fine of her own Lands for she cannot reverse it during her Husbands Life neither after his Death if she be then at full Age 50 E. 3. 5. Ass pla 53. A married Woman of age Of Age. ought not to levy a Fine but with her right Husband 7 H. 4. 23. 42 E. 3. 20. And she must beware how she with her Husband With her Husband levy a Fine of her Joynture lest she thereby lose her Thirds if the Joynture were well setled before Marriage Dyer fol. 359. pla 49. If she without her Husband Without her Husband levy a Fine of her own Lands wherein she hath Fee-simple it will be a Bar against her and her Heirs unless her Husband avoid it by Entry or otherwise during her Life If he be Tenant by Curtesie Tenant by Courtesie he may reverse it after her Death 17 E. 3. 52. 78. 17 Ass 17. 7 H. 4. 23. If a Woman during her first Husbands Life marry a second Fine by Woman having two Husbands and with him and by his Name knowledge a Fine it shall not bind her 7 H. 4. 22 23. because she is misnamed With her right Husband And if she levy a Fine with her right Husband by a wrong Christian Name she is bound by Estoppel during her Life and the Tenant may plead that she by such a Name levied the Fine 1 Ass pla 11. Brook Fines 117. Of Cognizors Of the Estates of Cognizors who may levy Persons outlawed or waved in personal Actions may alien by Fine 9 H. 6. 20. 21 H. 7. 7. Persons attainted of Felony or Treason may levy by Fine but their Fines are void against the King and the Lord of whom the Lands be holden 9 H. 6. 20. 21 H. 7. 7. Tenants for Life may Tenant for Life may levy a Fine sur Graunt and Release of the Lands which he holdeth for Life to hold to the Cognizee for Life of the Tenant for Life 44 E. 3. 36. But if the Estate be larger it is a forfeiture of his Estate 4 H. 7. Noy 30. Forfeiture of Estates And so the Law is the same of such Fines by Tenant in Tail after possibility Tenant in Dower or by the Courtesie 39 E. 3. 16. But it seemeth to be no forfeiture of a Rent Rent no Forfeiture 2 H. 5. 7. Yet a particular Tenant Particular Tenant as in Dower by Courtesie or for Life cannot grant and surrender their Estate to the Owner of the Reversion or Remainder 17 E. 3. 62. Tenant in Common Tenant in Common or Joynt-Tenant may levy a Fine of his part 26 H. 8. 9. so a Copartner of his part Dyer 334. So may Tenant in Tail Tenant in Tail General or Special Also Tenant in Fee-simple
Tenant in Fee-simple in Remainder or Reversion Cognizors must be certainly named by their right Names of Baptism and Sirnames Cognizors how must be named and their Additions as Knight Esquire Gent. c. are commonly used in Fines West Tit. Fines § 14. Of Cognizees All such Persons as may be Grantees or take Contracts may be Cognizees Who may be Cognizees as Persons of full Age Infants Femes-Covert Mad-men Lunaticks Ideots Men imprisoned Men without the Realm and all Corporations and Civil Bodies Men attainted of Felony or Treason Men outlawed in personal Actions Bastards Clerks convict c. Exceptions of Persons dead in Law But Persons civilly dead as Monks Friers c. cannot be Cognizees because they want Civil Capacity West Pres Tit. Fines § 15. Cognizees how to be named Cognizees in Fines must be named by their proper Names and Sirnames For a Fine levied to A. and Sibel his Wife where her Christian Name was Isabel was holden void West Tit. Fines Sect. 15. 1 Ass pla 11. the rest in order as for the Cognizors mutat ' mutand ' All or two of the Justices of the Common Place may in open Court take knowledge of Fines Who may take knowledge of Fines in Court and Record them by vertue of their Offices And the Justices of the Common Place be the only Judges for the recording of Fines and all Cognizances thereof must be certified thither 15 E. 2. 36 H. 6. 34. 44 Ed. 3. 38. The Chief Justice of the Common Place by his Prerogative of his Office may take Cognizance of Fines in any place out of the Court Fines taken out of Court and certifie the same without a Dedimus Potestatem Dyer 224. pla 31. By the Statute 2 E. 6. cap. 28. Fines may be levied Where Fines may be levied in the County Palatine of Chester and by 37 H. 8. cap. 19. of Lands in the County Palatine of Lancaster And by 5 El. cap. 27. within the County Palatine of Duresme alias Durham Fines may be levied of all things being in esse tempore Finis Of what things a Fine may be levied and certainly expressed in the Writs 18 E. 4. 22. Fines may be levied of all things whereof a Praecipe quod reddat lieth West Tit. Fines § 25. Lands bought of divers Persons by several Purchasors may pass in one Fine Several Lands pass in one Fine and then the Writ of Covenant must be brought by all the Vendees against all the Vendors and every Vendor must Warrant against him and his Heirs only And these Joynt Fines are seasonable when the Purchases are of small Value The Conveniency and the Charges would exceed the Value Fines may not be levied of things incertain as de Tenemento 3 Ed. 4. 19. Of what things Fines may not be levied Lands restrained Nor of Lands restrained from sale by Act of Parliament 32 H. 8. cap. 36. Lands assured for Joynture Nor of Lands of the Husband or his Ancestors assured for Joynture Dower or in Tail to any Woman by means of her Husband or his Ancestors For if she grant a greater Estate than for her Life her Estate is presently forfeited Plow fol. 459. Lands in ancient Demesn Nor of Lands in ancient Demesn for it may be reversed by a Writ of Disceit brought by the Lord of Ancient Demesn 7 H. 4. 44. 8 H. 4. 23. Reg. fol. 13. b. Mixt Lands But if it be both of Ancient Demesn and of Lands at the Common Law it shall be good for the Lands at the Common Law 7 H 4. 44. What Persons be barred by Fines Privies in Blood as Heirs of the Cognizors claiming by the same Title that their Ancestors had that levied the Fine be barr'd presently thereby whether they be void of Impediments or no 1 R. 3. c. 7. 4 H. 7. c. 24. Br. Fines 109. Strangers excepted But Strangers to Fines that is such as be not Parties or Privies have years after Proclamation to enter and claim their Right Ibid. The like time have Infants Infants after they accomplish their full Age Plow 367. a. 359. b. 4 H. 7. cap. 24. The like liberty have Madmen Madmen c. and Lunaticks after they be cured of their Maladies Plow fol. 375. 366. Also Feme-Coverts Feme-Coverts or married Women being Strangers to the Fine after the Death of her Husband Nota If a single Woman having present Right take a Husband who suffereth the five years to incur Five years suffered to incur she is for ever barr'd Prisoners Prisoners Strangers to the Fine shall have five years after their inlargement Plow 360. a. 375. 366. a. But Civil Bodies Civil Bodies and Corporations having an absolute Estate so as to maintain a Writ of Right as Mayor and Commonalty Dean and Chapter c. are barr'd by five years Plow fol. 538. T. 20 Eliz. But Deans Bishops Exception Masters of Hospitals Parsons Vicars Prebendaries c. Which may not have a Writ of Right are not barr'd by five years Plow 538. a. But note also That such Persons who have such Impediments as aforesaid if after Proclamation the said Impediments be wholly removed Impediments removed after Proclamation and afterwads they fall into the like again and die their Heirs shall not have five years claim anew but the first years begun immediately after the first removal of the said Impediments shall run on to five years and shall bind the Heirs Plow fol. 375. a. Note There must be four Proclamations Four Proclamations in four Terms one in each Term. Thus much of Strangers to Fines having present Right at the Proclamation Yet such Strangers to Fines and void of such Impediments whose Right or Title cometh or descendeth to them after the Proclamation Title descending after Proclamation have five years after the coming of such Right 1 R. 3. cap. 7. 4 H. 7. cap. 24. Plow fol. 378. a. b. So he in Remainder or Reversion Limitation after a Reversion accrueth depending upon an Estate of Free-hold after the Remainder or Reversion accrueth hath five years to enter and if he die before Entry his Heir hath only five years to enter after the Death of the particular Tenant Plow fol. 374. a. b. And also such Strangers to Fines as are not void of such Impediments having future Right Fines after Impediments removed where there is future Right have five years after such Impediments removed 1 R. 3. c. 7. 4 H. 7. c. 24. Plow fol. 364. a. Such Strangers to Fines as have neither present nor future Right Neither present nor future Right at the levying thereof by reason of any matter had afore the Fine whose Right groweth either intirely after the Proclamation or partly before and partly after may enter or claim when they please within the time of the prescription As if the Father die seized
Example his eldest Son being possessed and the youngest Son entreth and is disseized and a Fine with Proclamation levied and after the eldest Son is deraign'd i. e. discharged of his Profession or Religion It seemeth he is bound to no time So if the Husband levy a Fine of his own Lands Dower whereof his Wife is Dowable and die and five years pass she is not barred of her Dower for before his Death she had only a Possibility and not any Title to Dower Plow fol. 373. a. And if Strangers have several future Rights by divers Titles growing at several times Several future Rights growing at several times they shall have several five years from the time that their several Titles first accru'd unto them Ibid. Strangers having neither present nor future Right And Strangers to Fines having neither present nor future Right to the Tenements in the Fine but unto some thing in or issuing out of the same as Rent Common Way Estovers or any such charge out of the Land seem not barrable at all For it seemeth that these Fines extend only to bind the Estate Title Right Claim Entry and Interest in and to the Land and no Profits to be taken out of the Lands nor to take power given to Executors or others to sell the Land Brook Tit. Fines 123. It is a good plea to a Fine Plea to a Fine that a Stranger was seized to say That J. S. was seized at the time of levying it and before without that That the Parties to the Fine had any thing therein at the time of the Fine levied 9 H. 4. 27. 3 H. 6.27 Or that the Parties to the Fine had nothing Plea that the Parties had nothing c. But that A. B. had whose Estate he hath 33 H. 6. 18. 26 H. 6. 9. 42 E. 3.20 4. H. 4.8 4 H. 7. cap. 24. If there be two of one name Two of one Name and the one levy a Fine of the Lands of the other the other may avoid it by pleading likewise the Owner of the Land may aviod the Fine levied by a Stranger in his name Fine how to be avoided because it is a matter of Record and there is no other remedy except an Action of Deceipt 34 H. 6. 19. But neither Parties to Fines Pleas not allowable nor their Heirs may plead that before at and since the levying the Fine the Plaintiff or their Heirs were always seized of the Lands in the Fine or of parcel thereof 27 E. 1. cap. 1. Tenant in Remainder in Fee Averment of him Remainder in Fee may aver the continuance of Possession against a Fine sur Cognizance de Droit come ceo c. levied by Tenant in Tail 12 E. 4. 12. because he is neither the Party nor his Heir The Reason and so may a Feme-Covert where her Husband sole levyeth the Fine Ibid. Issue in Tail may aver continuance of Possession Continuance of Possession against a Fine sur Cognizance de Droit tantum but not against a Fine sur Cognizance de Droit come ceo que il ad de son done because that Fine is executed and the other only Executory 12 E. 4. 15. 19. 11 H. 4. 85. And lastly Note that if the use of a Fine be not declared before nor after the Fine levied it shall be intended to the use of the Cognizor Use of a Fine not declared remains to the Cognizor and his Heirs See West Symb. Tit. Fines Of Recoveries Recoveries are either feigned That is Common or True that is actual by Judgment The end and effect of a Common Recovery is to discontinue and destroy Estates Remainders and Reversions and to bar the former Owners thereof West part 2. Symb. § 1. And it is used for assurances of Land where the Parties do agree that one shall bring an Action Real against the other that hath the Free-hold of those Lands as though he had good Right to the Lands and the other shall not make defence against it The form of it but shall alledge that he bought these Lands of A. B. who hath warranted them to him and prays that A. B. may be called to defend the Title and A. B. shall vouch to warranty H. H. who is called the common Vouchee Common Voucher unless it be in special Cases where some others are to be and must be vouched thereby to cut off Remainders which Vouchee shall appear as though he defended and pray that day for defence and after a day being given him by the Court maketh default and thereupon the Court is to give Judgment Judgment against him which Judgment cannot be for him to lose the Land because he hath it not but the Party to whom he sold it who called him to warrant it Therefore first the Demandant against whom there is no defence must have Judgment to have the Land against him that he sued who is called the Tenant and the Tenant is to have Judgment against the first Vouchee c. And by this Devise grounded upon the strict Principles of Law the first Tenant loseth the Land Tenant loseth his Land by Agreement and hath nothing for it but it is by his own Agreement and for the Assurance of him that buys the Land The Effects of Recovery The Recovery bars Intails and all Remainders and Reversions that should take place after Intails saving where the King is the Giver of the Estate Tail and keepeth the Reversion in himself It prevaileth not where the King has the Reversion and then the Heir in Tail nor the Remainder or Reversion is barr'd by such Recovery 23 H. 8. b. The Reason why the Heir c. is barred by such Recoveries The Reason why the Heirs of the Remainders and Reversions be thus barr'd is because in strict Law the Recompence adjudged against the Vouchee is to go in succession of Estate as the Land lost should have done and then it were not reason to allow the Heir liberty to keep the Land and also to have a Recompence in value therefore he loseth the Land 23 H. 8. and is to trust to the Recompence This sleight was first invented Recoveries when first invented when Intails fell out to be inconvenient as is before declared so that Men made no Conscience to cut them off if they could find Law for it and now by use these Recoveries are become common Assurances against Intails and against Remainders and Reversions and are the greatest Assurances that the Purchasors have for their Mony Are the greatest Assurances for Purchasors for a Fine will bar the Heirs in Tail but not the Remainders or Reversions but a common Recovery bars them all And this common Recovery is used The use when a Man is desirous to cut off an Estate Tail in Lands or Tenements to the end to sell give or bequeath it as himself seeth good There is also a
true Recovery True Recovery what which is an actual or real Recovery of any Thing or the value thereof by Judgment for example If a Man buy Land of another with a Warranty which Land a third Person afterward recovereth against him the Buyer hath remedy against the Seller to recoveâ— it in value That is to recover so much in Mony as the Land is worth Fitz. N. B. fol. 134. Note That these common Recoveries are sued out with single double and treble Vouchers Vouchers What a Recovery with single Voucher is And yet in that called a single Recovery you will find two Recoveries included the first by the Demandant against the Tenant and the second by the Tenant against the common Vouchee The intent of a common Recovery with single Voucher What is intended by a Recovery with single Voucher is to bar the Tenant and his Heirs of such only Estate Tail which then is in him to destroy the Estates which others have of any Reversion Expectant or Remainder Dependant upon the same and of all Leases and Incumbrances derived out of such Reversions or Remainders In a double Voucher there are â—lso three Recoveries mentioned What a Recovery with double Voucher is â—ne for the Demandant against â—he Tenant another for the Teâ—ant against the Voucher the last â—or the first Voucher against the â—ommon Vouchee And by this Recovery with â—ouble Voucher What is intended by double Voucher it is intended to â—ar the first Voucher and his Heirs â—f every such Estate as at any â—ime was in the same Voucher or â—ny of his Ancestor whose Heir he â—s of such Estate and all other Persons of such Right to a Reverâ—on or Remainder And of all Leases Charges and Incumbrances derived out of any such Reversion or Remainder and will be alâ—o a perpetual Bar of such Estate whereof the Tenant was then â—eized in Reversion or Remainder Expectant or Dependant upon the â—ame In a Recovery with treble Voucher What a Recovery with treble Voucher is are included four Recoâ—eries the first by the Demandant â—gainst the Tenant the second â—y the Tenant against the first Vouchee the third by the first â—gainst the second and the fourth â—y the second against the common Vouchee The intent thereof The scope and intent of this treble Voucher is to make a perpetual Bar of the Estates of the Tenant and of every such Estate of Inheritance as at any time had been in the first or second Vouchee or any of them or either of their Ancestors whose Heirs he or they are of such Estate and as well of every Reversion thereupon dependant as also of all Leases Estates Charges and Incumbrances derived out of any such Reversion oâ— Remainder And the uses both of Fines and Recoveries are mostly expressed and led by Indentures between the Parties designed before or afteâ— for that purpose which be called Indentures to lead the uses of Fineâ— and Recoveries Indentures to lead the uses of Fines and Recoveries And as these Fines and Recoveries are a Bar and dock thâ— Estates afore-mentioned so by thesâ— Indentures to lead the uses thereof new Estates and Intails are limited and created subject to further Fines and Recoveries Et sic ad infinitum Upon Feoffment Fines and Recoveries the Estate of the Lands doth settle as the use and intents of the Parties is declared by Writing before or after the Act was done as for example If they make Writing that one of them shall levy a Fine or make a Feoffment or suffer a Recovery to the other yet the use and intent may be is that one shall hold it for his Life and after his death a Stranger to have it in Tail and then a third in Fee-simple The Use guides the Estate In this case the Land setleth in Estate according to the use and intent declared and that by reason of the Statute of 27 H. 8. cap. 10. 27 H. 8. cap. 10. Which conveyeth the Land â—n possession to every one that hath interest in Use or the intent of the Fine Feoffment or Recovery according to the use or intent of the Parties But before that Statute the Feoffees were Owners of the Land The conveniency and force of that Statute but now the Cestuy que Use he to whose use they were enfeoffed is the Owner of the same before the Possession ruled the Use but since the Use governeth the Possession Noy Max. 60. Upon this Statute of 27 H. 8. is also grounded the fourth and fifth of these Conveyances viz. Bargains and Sales and Covenants to stand seized to Uses For this Statute wheresoever it findeth conveyeth the Possession to the Use Use what The Use is but the Equity and Honesty to hold the Land in Conscience of a good Man as for example If I and You by Deed agree and Covenant that I shall give you Mony for your Land and that you shall make me Assurance of it I pay you your Mony and you have made me no Assurance of the Land Here although the Estate of the Land be still in you yet the Equity and Honesty to have the Land is still with me Use quid and this Equity is called the Use upon which I had no remedy but in Chancery until the Statute of 27 H. 8. Advantage by the Statute 27 H. 8. And now this Statute conjoyning and conveying the Land to him that hath the Use I for my Mony paid have the Land it self without any other Conveyances from you and this is called a Bargain and Sale 'T is true Uses first began When Uses first began and were invented upon the Statute called West 3. or Quia emptores terrarum before the which Statute no Uses were known Perkins Devices 528. And because Mens Wills had in time devised many Deceits by the setling of the Possession in one Man and the Use in another the afore-mentioned Statute of H. 8. was made whereby it was enacted That the Use and Possession Uses and Possessions united of Lands and Possessions should always stand united But the same Parliament that made that Statute did foresee Bargains and Sales that it would be mischievous that Mens Lands should be so suddenly conveyed upon the payment of some â—ittle Sum of Mony from them and that peradventure in an Ale-house or Tavern upon strained Advantages and so gravely provided another Act 27 H. 8. 16. at the same Parliament That the Land upon this Payment of Mony should not pass away Bargain and Sale must be in Writing indented sealed and inrolled within six Months except there were a Writing indented made between the Parties and the same Writing also within six Months after to be inrolled in some of the Courts at Westminster or in the Sessions Rolls of the Shire where the Land lieth unless it be within Cities and Towns Coporate where they did use to inrol Deeds and there the Statute
☞ The Case was A. le ts to B. for twenty one Years and after the Reddendum is a Covenant Provided always c. That the Lessee shall not let or assign over his Term without the consent of the Lessor first had in Writing B. cannot assign over to D. lest A. enter upon him and oust him because 't is a Condition And although the words are That he shall not let c. Yet if there be any other Covenants between the Reddendum and this Proviso then 't is but a Covenant And if B. do let to D. A. cannot turn him out but have an Action of Covenant against B. but if otherwise A. may turn him out Therefore observe whether it doth follow the Reddendum or no. Nota. Edmund Saunders And note These Conditions precedent or subsequent to the Estate are or may be Affirmative Negative Collateral Inherent Restrictive Compulsory Single Copulative and Disjunctive and make the Estate whereto they are annexed void without or voidable by Entry or Claim or tend to make and enlarge or destroy or clog Estates Seventhly The Conclusion Conclusion what In cujus rei Testimonium In Witness whereof c. This Clause is added as a Preparatory Direction to the sealing of the Deed for sealing is essentially required to the perfection thereof because it doth plainly shew the Feoffors or Parties consent to and approbation of what is therein contained Noy p. 155 156. Nota. And note That the date of the Deed which is the Description of the Time in which the Deed was made either by the Year of the Lord or the Year of the Princes Reign may be placed in the Conclusion and is so most usually in all Deeds Poll but otherwise in Deeds indented most commonly and properly in the beginning of the Premisses as before is touched in several Examples Words to be used in Instruments And here take notice that such words are to be used in the making of Instruments as the nature of the Contract doth require as in Feoffments In Feoffments Feoffavi Dedi or Concessi have enfeoffed given granted c. In Bargain and Sale In Bargain and Sale have bargained and sold c. In a Gift or Grant In Gift or Grant have given granted and confirmed In a Lease In a Lease for Years have demised granted and to farm let In a Release In a Release have remised released and for ever quit claimed In Assignments In Assignments have given granted assigned and set over In Exchange In Exchange have given granted and confirmed and by these Presents c. unto A. B. and to his Heirs and Assigns for ever in Exchange c. In a Surrender In Surrender hath surrendred granted and confirmed In a Confirmation In Confirmation have ratified approved and confirmed c. CHAP. IV. Shewing what Things are required to the making of a good Deed or Instrument AND thus I have laid you down the formal and orderly Parts which ought to be observed in the making of Deeds and Instruments Requisites but it is requisite to let you further know That to the making of a good Deed are required First Legible and formal Writing Legible Writing in Paper or Parchment before sealing and delivery Secondly Capable Persons Capable Persons not disabled by Law but Donors and Donees that are Monks Friers c. are disabled Also Persons attainted of Treason Felony or Praemunire And Infants Madmen Idiots Femes Covert Aliens Deaf Blind Dumb from Nativity Are disabled Defects hindring except in several special Cases and Things For all which by Nature can consent cannot also consent by Law But Age hindreth some and some the Defects of the Body and some the Defects of the Mind so that they cannot consent West Symb. part 1. Lib. 1. sect 4. Age Age. hindreth those that be within the Age of twenty one Years Defects of the Mind those that be of full Age Ibid. Infants which understand not what is done Infancy can therefore neither make Obligation nor Covenant which may take beginning at their Persons Exception except such as be at the Age of Discretion That is Males at the Age of fourteen Years and Females of twelve Years which in some Cases may covenant and be bound as for necessary Food Rayment Schooling Instruction c. or as Executor to another c. Ibid. Lands properly named 3. It must be a Thing to be granted and passed 4. It must be by proper and sufficient Names and Descriptions both of the Grantor Grantee and Thing granted Which must be grantable Grantable in its own Nature and by him that grants it and is either corporeal and immoveable or incorporeal or Chattels Corporeal and immoveable as Houses Lands Woods c. which are grantable in Fee Tail for Life for Years c. and assignable from Man to Man Incorporeal as Rents Services Advowsons Presentations Reversions Remainders Offices Licences Franchises Commons c. Whereof some are grantable at their first Creation but not assignable after As Great Offices of Trust Judicial Offices Licences Authorities c. Some are 1. Assignable always 2. Intirely but not in part 3. Intirely or in part 4. To any Body 5. But to special Persons 6. Some Things incident to others and not grantable without the Things to which they are incident Or Chattels which are either real as Leases for Years present Chattels real or to come Extent c. Or personal Personal as Horses Oxen Plate c. Fifthly Reading the Deed. The true reading or dedeclaring to a blind or illiterate Person Sixthly Sealing and Delivery Sealing and delivery By the Maker or his Attorny absolutely and positively to or to the use of the Party Or conditionally and as an Escrow to another Seventhly To an Honest end To honest Ends. and not by unlawful Contract or made by Force or Fraud Eighthly Due Ceremony as Attornment Livery of Seisin Inrolment c. Deeds executed not alterable A Deed when made read sealed and delivered may be altered or amended in nothing West Symb. part 1. Lib. 1. sect 56. A Writing cannot be said to be a Deed if it be not sealed although it be written and delivered it is but an Escrow Escrow Noys Max p. 55. Insufficient Deed. And if it were sufficiently sealed yet if the print of the Seal be utterly defaced the Deed is insufficient it is not my Deed and though it may not be so pleaded yet it may be given in Evidence Ibid. A Deed taketh effect How it taketh effect by the delivery and if the first take any effect the second is void Ibid. And a Jury shall be charged to enquire of the delivery Delivery and Date but not of the date yet every Deed shall be intended to be made when it doth bear date So if a Lease be made How Deeds shall commence dated the
third of May 1688. to have and to hold for three Years from henceforth or from the making and it is delivered the 20 day of June after in this case the day of the delivery shall be the first day of the Term and must be taken inclusive and the Lease shall end the 19 day of June in the third Year Co. Lit. fol. 46. Co. Rep. 5. fol. 1. 93. Noys Max. p. 55. Herns Law of Conveyances p. 14 15. The delivery ought to be done by the Party himself Delivery how to be made or by his sufficient Attorny and so it shall bind him whosoever wrote or sealed the same Noys Max. p. 55. If one be bound to make Assurance Reading the Deed. he need not deliver it unless there be one to read it to him before Ibid. p. 56. False reading And if any Writing be read in any other form to a Man unlearned it shall not be his Deed Ibid. Deeds how voidable And yet a Deed when well made read sealed and delivered may be void or voidable when got By Force Fraud Corrupt Agreement Or may be marred by Rasure Interlining Addition Breaking the Seal Defacing Judgment of Court c. Voidable Deeds All Feoffments Gifts Grants and Leases made by duress of Imprisonment are voidable and thaâ— not only by the Parties themselves but by their Heirs and those who have their Estates Perkins sect 16 Plow 18. a. Co. Lit. fol. 253. CHAP. V. Shewing the Form and Effect of Livery of Seisin and Attornment c. And what is a Reversion Remainder and particular Estate Livery and Seisin LIvery and Seisin Defined is a Ceremony used in the Conveyance of Lands that the Common People might know the passing or alteration of the Estate that they might surely know in whom the Right thereof remained for their own peace and quietness Perk. 209 210. Bract. Lib. 2. cap. 18. sect 12. Noys Max. p. 58. West Symb. p. 1. Lib. 2. Sect. 251. The usual manner of Delivery of Seisin of Houses Lands Tenements c. is thus The Feoffor and Feoffee How to be executed if they be present or in their absence their Attornies sufficiently authorised in Writing do come to the House or Place whereof such Seisin is to be delivered and there in the presence of sundry good Witnesses declare the cause of their meeting there and then openly read or cause to be read the Deed of Feoffment and Letter of Attorny if by Attorny or to declare the very effect thereof before them in English which being so done the Feoffor or his Attorny taketh a Clot of Earth or a Bough or a Twig of a Tree thereupon growing the Ring or the Hasp of the Door of an House and delivers the same with the said Deed unto the Feoffee or his Attorny saying I deliver these unto you in the name of Possession and Seisin of all the Lands Tenements c. contained in this Deed To have and to hold according to the form and effect of the same Deed Ibid. The Effect By Livery of Seisin the Feoffor transferreth unto the Feoffee all that he hath in things whereof Livery is made according to the State thereupon limited West sect 251. p. 1. Lib. 2. And the date and manner of this Seisin must be endorsed thus Memorandum Indorsement of Seisin That the _____ day of _____ peaceable and quiet Possession and Seisin of the Lands and Hereditaments within mentioned to be granted was had and taken by the within named A. B. and by him was delivered to the within named C. D. in their proper Persons according to the Tenor Form and Effect of the within written Deed in the presence of us A. B. C. D. E. F. Note If by an Attorny By an Attorny to an Attorny or by Attorny to the Lessee himself or by the Lessor to an Attorny then you say By or to A. B. Attorny of the within named C. D. and so of the like mutatis mutandis West Ibid. Note A Man cannot make Livery of Seisin before he hath the Possession Possession necessary Noys Max. 57. Livery of Seisin is requisite Where it is requisite in all Feoffments Gifts in Tail and Leases for Life made by Deed or without Deed Ibid. 59. No Freehold Freehold will pass without Livery of Seisin except by way of Surrender Partition or Exchange or by matter of Record or by Testament Ibid. Time Livery of Seisin must be made in the Life-time of him that made the Estate Ibid. There needs no Livery of Seisin to be given on a Lease for Years Lease for Years but the Lessee may enter when he will Co. Lit. 48. a. And if Livery be given he shall have but an Estate for Years There needeth neither Livery of Seisin nor Writing to an Assignment of Dower Assignment of Dower because it is due of Common Right Idem fol. 35. Dyer 91. Note If there be a Lease for Years They in Possession cannot take it and a Remainder granted over in Tail or in Fee or for Life then there must be Livery given to the Lessee for Years or otherwise nothing passes to him in the Remainder And if the Lessee enter into the Land before Livery and enjoy then the Lessor after his Entry cannot make Livery to him for he is then in Possession and such Persons as have Possession in Lands for Years or for Life c. cannot take by Livery and Seisin of the same Lands for Livery must be given of and ought to bring an immediate Possession For it ought to bring an immediate Possession Lit. Tenures fol. 13. a. Co. Lit. fol. 49. b. Herns Law of Convey p. 25. Co. Rep. 2. fol. 31. The Lessor cannot make Livery and Seisin against the Will of the Lessee Cannot be against the Lessees Will being on the Land but he may grant the Reversion and if the Lessee do attorn the Freehold will pass without Livery of Seisin Noys Max. p. 58. If two several Deeds How it passeth where two Deeds of one thing be made to two several Persons of one self thing it passeth unto him unto whom Seisin is first delivered West Symb. sect 251. part 1. Lib. 2. By Livery of Seisin in one County County the Lands in another County will not pass Noys Max. p. 59. And therefore if they lie in several Counties Several Counties it is convenient that he enter into every parcel thereof and so make Livery in every several parcel for he can give no Possession unto his Feoffee if he have it not in himself at that very instant West ubi supra Livery may not be made of an Estate to be given in futuro Estate in futuro for no Estate of Freehold or Franktenement may be given in futuro but shall take effect presently by Livery and Seisin Noys Max. p. 59. See the Case of a Lease for Years with Remainder ut
1688. Attorn and become Tenants unto the above named A. B. according to the purport of the Lease within mentioned Notice of the Grant having notice of the said Grant and for proof thereof every one of them did give unto the said A. B. one Peny in the Name of Attornment Witness hereto G. H. I. K. L. M. Here let the Tenants set their Names A. B. C. D. E. F. It may be indorsed together with the Livery of Seisin Indorsed with Livery of Seisin to an Attorny thus Memorandum That Possession and Seisin of the Lands and Tenements within mentioned was taken by c. and afterwards delivered to the within written S. P. 10. die Junij Anno Domini 1688. to the use within written And also the same day the within named J. V. Tenant of the Premisses for the Term of his Life Quere if the Tenant that attorns be named in the Deed otherwise that Clause to be left out did attorn Tenant to the said S. P. according to the Tenor of this present Deed and the said J. V. did give unto the said S. P. one Peny in the name of Attornment in the presence of It may be declared by Deed Poll thus Attornment declared by Deed Poll. To all People c. I A. B. of c. send greeting Whereas I the said A. B. have and hold for the Term of my Life one Tenement with the Appurtenances lying and being in c. the Reversion of which said Tenement should belong to one C. D. and being at present satisfied that the said C. D. hath by his Deed bearing date c. granted bargained sold and confirmed unto E. F. of c. the Reversion of the said Tenement as by the said Deed may appear Know ye that I the said A. B. Tenant of the said Tenement of my free will have attorned unto the said E. F. by payment unto him of one Peny in the name thereof and do by these Presents as much as in me lies ratifie and confirm unto the said E. F. the Reversion aforesaid In witness c. See West Symb. part 1. Lib. 2. sect 383 384 385 c. Note A voluntary Attornment where it is needful may be made by an Infant Voluntary Attornment by an Infant or one that is Deaf and Dumb may do it by signs but one that is not Compos mentis cannot make an Attornment Co. Lit. fol. 315. Co. Rep. fol. 84. Note It must be certain Certainty Co. Lit. 310. In all Cases for the most part where there is no means provided by Law to compel the Tenant to attorn in such Cases Attornment Deed or in Law is not necessary Where it needs not as in the grant of a Seigniory c. by Letters Patents from the King or where such things are granted by matter of Record from a Subject to the King but a Seigniory a Rent-charge a Remainder or a Reversion will not pass without Attornment but by matter of Record Co. Lit. 314 321. Co. 6. Rep. 68. Noys Max. p. 64. Attornment necessary upon a Devise Devise Noys Max. p. 65. In all Cases where tho Grant is in the personalty there needs no Attornment Needless as in Annuities which do charge the Person only and not the Land And in all Cases where there is an Attornment in Law there needs none in Deed M. 3. Jac. in C. B. agreed in Curnocks Case Noy saith in his Maxims p. 65. That if the Tenant have true notice of all the Grant then such Attornment is void Void Attornment But quere Common of Pasture for a certain number or Common of Estovers certain will pass by Granâ— without Attornment Needless for where there is no Tenure Attendance Remainder Rent or Service to be paid or done Attornment is not necessary 31 H. 8. 59. Kitchin 103. a. Note Attornment is a solemn Act and ought to be done Time when it must be done so that notice may be taken of it and therefore Attornment after Sun-set is not good for it shall not be presumed that notice can be taken in the Night M. 23 Car. 1. in B. R. Registr practicale p. 30. Concerning Possessions The difference between Possession and Seisin Difference of Possession and Seisin is A Lessee for Years is possessed Possession what and yet the Lessor is still seized and therefore the Terms of the Law are That of Chattels Seisin what a Man is possessed whereas in Feoffments Gifts in Tail and Leases for Life he is called seized Noys Max. page 20. Of Estates And note that all Estates that have their being are in Possession Reversion Remainder or in Right but of all these Possession is the principal Idem page 119. There are two Degrees of Possession in Law and Deed. In Deed is the actual Possession Possession in Deed. In Law In Law is that Possession which the Law it self casteth upon a Man before any entry or pernancy of the Profits Example As where the Father dieth seized of Lands in Fee and the same is to descend to the Son as his next Heir in this Case before any Entry the Son hath a Possession in Law Ibid. p. 120. And so of a Reversion expectant Reversion Expectant c. or a Remainder dependent upon a particular Estate for Life Example As if Tenant for Life die he in Reversion or Remainder before his Entry hath only a Possession in Law And note That all manner of Possessions that are not Possessions in Fait or Deed are only Possessions in Law Noys Max. p. 120. Of a Particular Estate A Particular Estate is such as is derived from a General Estate Defined by seperation of one from the other Noys Max. p. 117. As an Estate Tail for Life or for Years created by Gift or Grant out of a Fee-simple is in the Donee or Lessee a particular Estate in Possession derived and separated from the Fee-simple Ibid. similia And of particular Estates Twofold some are created by Agreement between the Parties and some by Act of Law By Agreement By Agreement as those before specified By Law By Law as Estates in Tail after possibility of Issue Extinct Estates by the Courtesie of England Dower c. for in Dower the Party is compellable by Law to compleat the Estate Ibid. Of a Remainder Defined A Remainder is the Residue of an Estate at the same time appointed over and must be grounded upon some particular Estate given before granted for Years or Life and so forth Noys Max. p. 31. When it begins And ought to begin in Possession when the particular Estate endeth there may be no mean time between either by Grant or Will Ibid. Where cannot be No Remainder can be made oâ— a Chattel Personal A Remaindeâ— cannot depend on a Matter ex posâ— facto to be done in futuro as upon Estate Tail upon Condition thaâ— if the Tenant
Reversion that remaineth in himself he is also to do it by Writing and the Tenant is to have notice of it and to attorn to it which is to give his assent as to say I do agree to the Grant made to you or I am well contented with it or I do attorn unto you or I do become your Tenant or deliver to the Grantee a peny by way of Seisin of Rent in the name of the whole Note It must be done in the life-time of the Grantor See Attornment it is good for all Noy Max. Pa. 63. The manner of Indorsement thereof is hereafter set down Ch. 2. And except the Tenant will thus â—ttorn the party to whom the Reversion is granted cannot have the Reversion Reversion passes not without Attornment neither can he compel him by any Law to attorn unless â—he Grant of the Reversion be by Fine Unless the Grant be by Fine and then he may by Writ called Quid Juris clamat directed â—o the Tenant to shew his Estate This Writ issues out of the Record of the Fine which remaineth with â—he Custos Brevium of the Common Pleas before the Fine be ingrossed Then there is a Writ to compel If the Writ be not sued for afterward it cannot be had West Symb. Part 2. Tit. Fines § 159. And if he do not purchase that Writ yet by the Fine the Reversion shall pass But the Tenant shall pay no Rent nor be punished for â—ny Wast in the Houses or Woods before Attornment or unless the Reversion be granted by Bargain and Sale by Indenture and that â—nrolled within six Months The Reversion may pass but Tenant not punishable for Wast unless granted by Indenture inrolled within six Months 39 H. 6. 24. The end of Attornment is to perfect Grants and therefore may be made upon a Condition or for a time neither can the Tenant attorn for part of a thing granted but it shall â—enure for the whole absolutely Noy Max. pag. 64. If the Tenant have true notice of all the Grant then such Attornment is void Voidance Ibid. pa. 65. See Chap. 5. What perils Fee-simple Estates are liable to These Fee-simple Estates lie open to all perils of Forfeiture Extents and many the like Inconveniencies CHAP. II. Shewing the nature and effect of such Deeds by which Lands usually pass and are conveyed from one to another LAnds are conveyed several ways and by several Deeds or Instruments Ordinary Deeds by which Lands usually pass are Feoffment Fine Recovery Indentures to lead the uses of Fines and Recoveries Bargain and Sale Covenants to stand seised to Uses Gift or Grant Lease Lease and Release Assignment Exchange Surrender Confirmation Revocation and new Declaration Wills in Writing Of which in their Order And first of Feoffment A Feoffment Feoffment what is where by Deed Lands are given and Livery and Seisin made It is not called a Feoffment unless the Fee-simple It maketh Fee-simple be conveyed but otherwise it is called a Lease for Life or Gift in Tail as is above-mentioned M. West part 1. Symb. Lib. 2. § 235. saith It signifieth in our Common Law any Gift or Grant of any Honours Castles Mannors Messuages Lands or other corporal and immoveable Things of like nature unto another in Fee-simple that is to him and his Heirs for ever by delivery of Seisin and Possession of the thing given whether the Gift be made * Nota as before must be in Writing by Word or Writing and when it is in Writing it is called a Deed of Feoffment and in every Feoffment the Giver is called the Feoffor and he that receiveth by vertue thereof the Feoffee And Lit. Lib. 1. cap. 6. saith That the proper difference between a Feoffor and a Donor Difference betwixt Feoffor and Donor is That the Feoffor giveth in Fee-simple the Donor in Fee-tail And note That a Joynt-Tenant cannot enfeoff his Companion Noy Max. p. 57. A Man cannot enfeoff his Wife Ibid. A Disseisor cannot enfeoff the Disseisee for his Entry is lawful upon the Disseisor Ibid. 56. But note That a Copartner may make a Feoffment of his part or â—e may Release Ibid. 57. A Fine Fine what is a Ceremonious Conâ—eyance of Lands or Tenements â—r of any thing inheritable having 〈◊〉 Being at the time of such Fine â—o the end to cut off all Controverâ—es West part 2. Symb. § 1. saith They are Covenants made before â—ustices and entred of Record it â—egins thus Haec est Finalis Concorâ—ia c. This is the Final Agreement c. And this must be done â—efore the Kings Judges in the Court of Common Pleas concernâ—ng Land Where to be made that one Man shall have â—om another to him and his Heirs â—r to him and to the Heirs of his â—ody or to him for life or for â—ears whereupon also a Rent Rent may be reserved may â—e reserved but no Conditions or Covenants This Fine is a Record â—f great Credit and upon this â—ine four Proclamations Four Proclamations are made â—n the Common Pleas every Term â—or the four next Terms together 3 El. 2. And if any Man having right to â—hose Lands make not his claim within five years If the Heir claim not within five years next after these Proclamations are ended he loseth his Right for ever unless he be an Infant a Woman Covert one beyond the Seas or one Mad He loseth his his Right unless it be an Infant Woman Convert beyond Seas or Mad. and then his Right is saved so that he claim within five Years after hiâ— first coming to full Age after thâ— death of her Husband after theiâ— return from beyond the Seas anâ— after the Recovery of his Wits aâ— the Case falleth out Exampleâ— follow This Fine is called a Feoffmenâ— of Record Fine is called Feoffment on Record because it includeth alâ— that a Feoffment doth and worketh farther of his own nature anâ— barreth Entails peremptorily whether the Heir claim within fivâ— years or not Barreth Entails claim or not claim if he claim by him that levied the Fine A Fine begins Fine how begins by Praecipe and Concord The Praecipe Praecipe what is a Commandmenâ— or Charge supposed to be given to the Cognizees to hold Covenanâ— with the Cognizors of such anâ— such Lands c. The Concord Concord what is the very Covenant or Agreement betwixt thâ— Parties Cognizors and Cognizees In the form whereof many â—hings are to be regarded Things to be observed in the form thereof as if it be single whether it be sur Cogniâ—ance de Droit come ceo que il ad de â—on Done or sur Grant Done Release â—r Confirmation such and the like be â—alled single Fines Single Fine nothing being â—endred back by any of the Cogâ—izees to any of the Cognizors â—ee West Tit. Fines A double Fine Double Fine what is with a
Max. p. 76. quod bene nota Nota Mr. Noy here by Franktenement means him that hath Fee-simple yet a Man is said to have Free-hold if he holdeth either in Fee Fee-Tail or for Term of Life Bract. Lib. 2. cap. 9. The new Law Terms Tit. eod Brit. cap. 32. saith Franktenement is a Possession of the Soil or Services issuing out of the Soil which a Free-Man holdeth in Fee to him and his Heirs or at the least for the Term of his Life See Cow Interp. Tit. Freehold Assignment Defined Assignment is the appointing or setting over a Right unto another And there is an Assignee in Deed and an Assignee in Law Assignee in Deed and Law he in Deed In Deed. is such a one as to whom a Lease Estate or Interest is assigned He in Law In Law is he whom the Law so maketh without any appointment as an Executor is an Assignee in Law Vide Dyer fol. 6. nu 5. The difference betwixt an Assignee and Deputee Assignee and Deputee the difference is said to be for that the Assignee occupieth in his own Right the Deputee in the Right of another Vide Perkins in Grants If the Lessee for Years assign over his Term and die his Executors shall not be charged Executors not charged for Rent due after his death Noyâ— Max. 71. And if the Executors or Administrators of a Lessee for Years assign over their Interest an Action of Debt doth not lie against them for Rent yet it seemeth that the Lessor must have notice of the Assignment Notice of Assignment and consent to it Noy 71. See Moor Rep. Marrow and Turpins Case and 3 Co. Walkers Case If a Lessee for Years assign over his Term the Lessor may charge which of them he will but if he accept the Rent Acceptance of Rent from the Assignee knowing of the Assignment he hath determined his Election Barreth and cannot afterward bring an Action of Debt against the Lessee for Rent due after the Assignment Co. 3. Rep. â—ol 24. Bulstr 2 part 151. Herns Law â—f Convey p. 110. If the Lessor grant away the Reversion after the Assignment of â—he Lessee in this case the Grantee â—annot have an Action against the â—essee for the Rent because there 〈◊〉 no privity between them Privity between the Parties but â—e is left to his remedy against the Assignee Poph. Rep. 55. Brownlows 〈◊〉 part p. 56. An Assignee of Lands Assignee may pay Mony to save the Land if he be â—ot named in the Condition yet â—e may pay the Mony to save his â—and Noys Max. p. 72. But he shall receive He shall not receive none if he be not named and the Tender shall be to the Executor of the Feoffees Ibid. Assignee shall always be intended Who shall be intended an Assignee he that hath the whole Estate of the Assignor that is assignable and if there be an Assignee in Deed an Assignee in Law will not be allowed Noy Ibid. In Assignments it is necessary to have Covenants of the Assignors part to save harmless of former Rents Grants and Charges and for the delivery of former Deeds that he is Owner in Possession and hath power to grant and assign c. That the Assignee may quietly enjoy c. and to make further assurance c. And on the Assignees part to pay the Rents and perform the Covenants c. West part 1. Lib. 3 § 453. But this may be done by Bond. Exchange Exchange Exchange what permutatio Mr. West in his Symb. part 1. Lib. 1. sect 33. saith Permutation or Exchange is a nameless Contract consisting in the thing and consent by which one certain thing is given and exchanged for another and albeit it counterfeits Buying and Selling very near yet because it cannot be discerned thereby whether is the Buyer and whether the Seller it cannot usurp that Title In Exchange both the Estates must be equal Estates must be equal there must be two Grants and in every Grant mention must be made of this word Exchange Noys Max. p. 60. It may be done without Livery of Seisin Without Livery of Seisin if it be in one Shire or else it must be done by Indenture and by this word Exchange or else nothing passeth without Livery Ibid. p. 61. Exchange importeth in the Law Condition of Re-entry Importeth Re-entry and a Warranty Voucher and Recompence of the other Land that was given in Exchange An Exchangeâ— may re-enter upon an Assignee Ibid. Surrender Defined Surrender is an Instrument testifying with apt words that the particular Tenant i. e. Tenant foâ— Life or Years of Lands or Tenements doth sufficiently consent That he which hath the next mediate Remainder or Reversion thereof shall also have the particular Estate of the same in Possession and that he yieldeth or giveth the same to him For every Surrendeâ— ought forthwith to give a presenâ— possession of the thing surrendred unto him which hath such an Estate where it may be drown'd West Symb. part 1. Lib. 2. sect 460. Noys Max. p. 73. Two sorts And there are two manners of Surrenders viz. A Surrender in Deed and a Surrender in Law Now a Surrender in Deed In Deed. is that which is really performed as by Writing and also when the words of the Lessee to the Lessor prove a sufficient assent that he shall have again the thing which he holdeth of his Lessor if the Lesâ—or do agree to it it amounts to 〈◊〉 Surrender in Deed Perkins sect 606 607 608. 6 E. 3. 7. A Surrender in Law In Law is in inâ—endment of Law by way of consequent and not actual as if 〈◊〉 Man have a Lease of a Farm â—nd during the Term he accept â—f a new Lease this Act is a Surâ—ender in Law of the former Lease Perk. ibid. 6 Co. fol. 11. b. And note Agreement or disagreement The Lessee cannot â—urrender to his Lessor against his will but if he to whom the Surâ—ender is made once agree to it he cannot afterwards disagree thereunto Perk. ibid. As if the Lessee for Life or Years of Land say that his will is Example that his Lessor shall enter into the Land which he holdeth of him and shall have the same again if the Lessor agreeth thereunto and by force thereof entreth this is a good Surrender Ibid. A good Surrender And if the Lessee cometh and saith unto his Lessor That he will occupy the Lands no longer Note a Surrender in Deed must have sufficient words to prove assent and agreement and the Lessor by force thereof doth enter this is a good Surrender for the Agreement and Entry hath confirm'd it and so of the like Perk. 109 Herns Law of Con. p. 76. Husband surrendreth Wives Dower If a Woman being Tenant in Dower taketh a Husband who surrendreth the Land which he holdeth for her life and in her Right
of Conveyance was first ordained by a Statute made the 23 of H. 8.1 When first of force before which Statute no Man might give Land by Will except it lay â—n some Burrough-Town where â—here was a special Custom That Men might give their Lands by Will as it is in London and many other Places The not giving of Lands by Will The Reason was thought to be a defect by the Common Law that Men in the Wars or suddenly falling Sick had not power to dispose of their Land except they would make a Feoffment levy a Fine or suffer a Recovery which lack of time would not permit And for Men to do it by those means so as they could not undo it again was thought hard besides even to the last hour of Life Mens Minds might alter upon further proof of their Children or Kindred or by encrease of Children or for Debt or for defect of Servants or Friends For lack of Wills Men used the following Device For which cause it was thought reason that the Law should permit him to reserve to the last instant the disposition of his Land and yet then also to give him a means to dispose of it how he pleased which seeing it did not Men used this Device following The Device They conveyed the full Estate in their Lands in their good Health to Friends in Trust A Feoffment in trust to Friends called properly Feoffees in Trust and then they declared by their Wills how these Friends should dispose of their Lands and if those Friends would not perform it Who were compelled to Perform it the Court of Chancery was to compel them by reason of the Trust and this Trust was called the use of the Land so as the Feoffees had the Land and the Party himself had the Use which Use was an Equity to take the Profits himself and that the Feoffees should make such Estates as he should appoint them and if he appointed none then the Use was to go to the Heir as the Estate it self of the Land should have done for the Use was to the Estate like to the Shadow following the Body But observe that by this course of putting Lands in Use there were many inconveniencies for this Use that first grew of a reasonable Cause Many Inconveniencies grew thereby as a Man knew not against whom to bring his Action The Wife defrauded Husband defrauded Lord defrauded Creditor defrauded Tenant defrauded to give Men liberty to dispose their own was turn'd to defraud many other just and reasonable Rights as namely A Man that had cause to sue for his Land knew not against whom to bring his Action nor who was Owner of it the Wife was defrauded of her Dower the Husband of being Tenant by the Courtesie the Lord of his Wardship Heriot and Escheat the Creditor of his extent for his Debt the poor Tenant of his Lease for the Rights and Duties were given from him that was Owner of the Land and another who was not the old Owner And Cestuy que use took the Profits whose Estate was not liable to Dower Debts or Forfeiture for Treason whom we call the Feoffor but Cestuy que Use he to whose use the Feoffment was made should take the Profits and have power to dispose the Land by his direction to the Feoffees and yet he was not such a Tenant nor so seized of the Land as that his Wife could have Dower or the Land be extended for his Debts or that he could forfeit it for Treason or that his Heir could be in Ward for it Cestuy que Use could not be in Ward or make Leases or any Tenure of Duty fall to the Lord by his Death or that he could make any Lease of it The Frauds partly remedied by 1 R. 3. 4 H. 7. 16 H. 8. Action against him that took the Profits Which Frauds as by Degrees of times they increased were remedied by many Statutes as namely by the Statute of 1 H. 7. 1. it was appointed that the Action might be brought against him that took the Profits Frauds yet increased which was the Cestuy que Use he to whose use the Feoffment was made which Frauds nevertheless daily multiplying in the end the Parliament of 27 H. 8. purposing to take away all the Uses Another remedy and to reduce the Laws to the ancient form of conveying Lands by publick Livery and Seisin Fine or Recovery To carry the Estate from the Friends in Trust presently to Cestuy que Use and so this device ended did ordain that when Lands were put in Trust or Use there the Possession and Estate should be presently carried out of the Friend in Trust and setled and vested in him that had the Use for such term and time as he had the Use See the Statute And by this Statute of 27 H. 8. The Remedy worse than the disease and therefore the power of disposing Lands by Will was clean taken away amongst these Friends and so this Statute did as it were dispendere justum cum impio take away what might seem reasonable by a means less reasonable Whereupon in the 32 of H. 8. 1. Wills in Writing began Another Statute was made to give Men power to give Land by Will which took away many Inconveniencies But this Statute was limited Were limited by many particulars as to be seized in Fee-simple to be wholly seized and not joyntly with restraint to Lands held in Capite by Knight-Service of the King that a third of the whole should descend to the Heir to answer Wardship Livery and Primer Seisin to the Crown Were remedied But by Statute 12. Car. 2. Capâ— 4. All Wardships Tenures in Capite Livery and Primer Seisins and other Dependences were taken away and the Act 32 H. 8. cap. 6. 33 H. 8. cap. 22. repealed How the Will must be signed and subscribed And by the Statute 29 Car. 2. For prevention of Frauds declares that all devises of Lands or Tenements deviseable either by the Statute of Wills or by force of the Custom of Kent or of the Custom of any Burrough or any other particular Custom shall be in Writing signed by the Devisor or some in his presence by express directions and subscribed in his presence by three or four credible Witnesses or else to be utterly void See the Statute Devise in Writing revocable by Writing only This Clause does not say the Witnesses shall subscribe And further That no Devise in Writing shall be revocable but by some other Will or Writing declaring the same or by burning cancelling tearing or obliterating the same by the Testator himself or by his directions and consent in his presence the Writing to be signed in the presence of three or four Witnesses declaring the same See the Statute That if any Cestuy que Trust The Heir of Cestuy que Trust chargeable for Assets die leaving a Trust in
viz. Know all Men by these Presents Or thus To all Christian People c. and may be made in the first Person or third Know all Men by these Presents First Person That I A. B. of c. Gent. To all Christian People to whom these Presents shall come A.B. of Third Person c. sendeth greeting Whereas c. Be it known to all People c. This present Writing witnesseth c. cum multis aliis any of which Forms may be in the first or third Person And each of these Deeds may consist of Grants or Discharges Grants which are constitutive Grants constitutive and creating what was not before as the first Grant of a Way of a Rent or of an Estate in Tail for Life or for Years with Warranty or without and are either absolute or conditional or conveying whereby Estates already or formerly made are conveyed to others Of Discharges Discharges which are remissory or liberatory releasing or discharging something in being as Releases Defeazances Acquittances c. And most of such Deeds and Instruments by which Lands pass as afore described have formal and orderly Parts viz. The parts of Deeds The Premisses 1. The Habendum 2. The Reddendum 3. The Warranty 4. The Covenants 5. The Conditions 6. The Conclusion 7. First the Premisses The Premisses what unto the Habendum wherein is included 1. Grantor 2. Grantee 3. Thing granted By apt and proper Names and Descriptions which are certain in themselves or which by Reference may be reduced to a certainty 4. Exceptions Words of Exceptions by these or the like words Excepted Excepting Besides Saving Save only c. which must be first of some particular out of a general secondly part of what is granted and not all thirdly that which may be severed from the thing granted and not an inseparable incident thereunto 5. A Recital of something antecedent Nota In many Deeds in the Premisses there may be no occasion of Exception or Recital some may require either and some both as in the making of a new Lease reciting the surrender of a former Lease and excepting the Bodies of Oak Trees or a Room out of a House or of Woods c. as the Case requires Nota Exceptions of part ought always to be of such things which the Grantor had in Possession at the time of the Grant Noy page 69. Wests Symb. Lib. 1. sect 48. To which may be properly added the date and consideration as Monies Goods Natural Affection similia The Premisses saith he is commonly all that precedeth the Habendum or Limitation of the Estate wherein are to be considered first the Person contracting next the Thing Matter or Fact whereof the Contract is to be made and then the Words with which the said Contract is to be described for the Persons are the very efficient as the Considerations are the motive Causes for which and by whose consent the Instruments are agreed upon and made Noys Max. page 133. In the Premisses are first the direct nomination as well of the Feoffor as of the Feoffee together with their Places of Residence Habitation or Dwelling and their Qualities Estates Additions or Conditions Secondly the certain expressment and setting down of the Lands conveyed Secondly the Habendum or consequence of Deeds whose Office is to set down 1. Grantee 2. Certainty of the Thing Estate and Life granted and to what use Wests Symb. Lib. 1. sect 52. The later part of Instruments and Consequence thereof is all that necessarily followeth the Premisses and that is the Habendum In which is limited and expressed what Estate and Property the Party passive shall have The Habendum what as Fee Tail c. and that is twofold namely the Limitation of the Estate and of the Use reciting withal the Thing granted by some sufficient general Name as Habendum Tenendum the said Mannor Messuage or Tenement aforesaid with the Appurtenances as the case requireth and as it is granted in the Premisses unto the said J. S. his Heirs and Assigns for ever to the use and behoof of the said J. S. his Heirs and Assigns for ever Noy 150. The Office of the Habendum is to name again the Feoffee and to limit the certainty of the Estate and it may and doth sometime qualifie the general Implication of the Estate which by construction and intendment of Law passeth in the Premisses and the Premisses may be inlarged by the Habendum but not abridged it is also required of the Habendum to include the Premisses Noy page 54. The Habendum Habendum void must not be repugnant to the Premisses if it be it is void and the Deed will take effect by the Premisses Ibid. That is the precedent Estate given by the Premisses shall stand and the Estate by the Habendum shall be void As where a Feoffment is made to one and his Heirs by the Premisses of the Deed Habendum to him and his Heirs during the Life of I. S. or if a Feoffment be made to one and his Heirs by the Premisses of the Deed Habendum to the Lessee for the Term of his Life Now these words of Limitation during the Life of I. S. or during the Lessees Life as aforesaid are void words because the Habendum is repugnant to the Premisses Landlord and Tenant page 139. 2 Co. Buckleys Case The Habendum sometimes doth qualifie and control the general Implication c. as for example A Lease to two Habendum to one for Life the Remainder to the other for Life this Limitation doth alter the general Implication of the Joynt-tenancy which would have been without the Habendum and the Habendum is not contrary to the Premisses for in the Premisses no certain Estate is passed See Buckleys Case in the second Book of Sir Edward Cooks Reports But Landlord and Tenant Landlord and Tenant fol. 140. citing this very Case to shew that the Habendum doth control and qualifie the general Implication saith And therefore the Habendum is void in that the Premisses do make them Joynt-tenants and the Habendum would sever the Joynture and make the one to have all during his Life and the other the whole after him and directs to Plow fol. 133. and Herns Law of Convey p. 2. But Quere Quaere of this And what hath been aforesaid may be sufficient to shew the Office of the Habendum To which also let us joyn the Tenendum Tenendum what which before the Statute of Quia emptores terrarum 18 Ed. 1. was usually in Feoffments expressed from the Feoffors and their Heirs and not of the Chief Lords of the Fee c. whereby there happened divers Inconveniencies to the Lords as the losing of their Escheats and Forfeitures c. Whereupon it was granted provided and enacted That every Free-Man for the future might sell his Lands or Tenements or part thereof at his Will so that the Feoffee should hold