wooll of his sheep for seven years Perk Sect. 90. Wooll this is a good grant If one being a Parson give to another all the wooll he shall have Fitz. Grant 40. for tithe the next year this is a good grant If one grant to another his horse or his cow in the disjunctive Bro. Done 19. Incertainty this is a good grant not withstanding this incertainty and the donee shall have election and by that make the grant good Any estate that a man hath in fee simple fee taile for life or years 2. Inrespect of the estate property possession of the grantor in any lands c. or any rent or profit apprender out of the same is grantable from man to man in infinitum And he that hath any such estate of any lands may charge it with any rent or profit to be taken out of it as long as the estate of the land doth last But an estate at will is not grantable over And if an estate be made to a man and his heires without the word Assignes yet he may assigne it at his pleasure for Assignes is included within Heires An Interesse termini i. a lease for years to commence in futuro is 22 E. 4. 37. Perk. Sect. 91. grantable before the terme doth begin whether it be a lease of the land it selfe or any rent or other profit out of it The interest or estate that a man hath by extent is assignable Co. 4. 64. from man to man at pleasure The reversion upon an estate taile is grantable And yet the tenant Co. 6. S. Geo. Cursons case Co. 1. Altonwoods case in taile in possession by the suffering of a common recovery may barre him in reversion of any fruit of it If an estate be made of land upon condition as if A make a feoffment Co. 1. 147. 10. 48 49. Lit. chap. Confirmation to B on condition that if A pay twenty pound he shall have the land againe in this case A and B together may at any time before the performance of the condition joine together and grant this land or charge it with any rent c. and this will be good for it is a maxime in law Fee simple land may be charged one way or other And in this case B may grant over his estate alone but it will be subject to the condition And if B grant a rent out of the land to a stranger and after the condition is performed and the feoffor enter in this case he shall avoid the rent But in this case A cannot grant Co. 1. 147. for he hath nothing but a possibility If one enfeoffe divers to the use of his sonne and heire upon condition and before the time of performance of the condition the father and sonne joine to grant or charge the land this is a good grant or charge If the tenant in taile and he that is next in remainder in fee joine Co. super Lit. 45. Co. 10. 48 49 in the grant of a rent charge in fee and after the tenant in taile doth die without issue in this case this is a good grant and charge against him in remainder And if A doth bargaine and sell land to B by indenture and before inrolment they doe joine to grant a rent charge to C by deed in this case this is a good charge and grant whether there be any inrolment or not And so if donor and donee in taile grant a rent charge out of the land then the donee die without issue in this case the grant is good to bind the donor If land be granted to two men and to the heires of their two bodies Co. super Lit. 182. begotten in this case albeit they have severall inheritances after their death yet neither of them can grant away his estate after his life for they are divided only in supposition of law One coparcener of a seigniory may grant his part to a stranger Perk. Sect. 73. Perk. Sect. 103. If two Jointenants be of a plow land and one of them doth grant to a stranger common of pasture for beasts without number to be taken in the same land this is void If two Jointenants be of a reversion one of them grant the whol Iointenants Perk. Sect. 80. Perk. Sect. 65. Dier 12. 33. this is void for a moity If a man grant or charge that which is none of his and that wherein he hath no property it being in the grantee or a stranger the grant is void And therefore if a man grant a rent charge out of the Manor of Dale or grant a reversion of land and in truth the grantor hath nothing in the Manor of Dale or in the land in this case the grant is void And albeit the granter doe afterward purchase the Manor or the land yet this will not make the grant good But if the grant be by fine or by indenture there in some cases it shall be good by way of estoppell And in this case Estoppell albeit the party recite that it is his owne yet this will not mend the cases And therefore if a man recite that he hath a rent of tenne pound a yeare and then grant five pound a year parcell of it in this case if he have no such rent the grant is void A Shepherd Bailif or Parker cannot give or grant away the Servant Bro. Done 56. 4. goods of his master without authority And yet it seemes the servant of a Taverner or Mercer may give or grant his masters Wine or Wares And if a wife give or grant the goods of her husband Husband and Wife this is a good gift or grant untill the husband disagree to it and by his agreement it is made good for ever If a man have a lease for yeares of land and make a lease for life Plow 524. 525. of it or charge it for longer time then the lease for yeares doth last in this the grant is good for so long as the lease for yeares doth last and no longer But if he make a lease for life and give livery of seisin he doth forfeit his estate Regularly a man cannot grant or charge that which is not in Co. super Lit. 214. Perk. Sect. 65. 86. his owne possession albe it he have a right to it And therefore if a man be disseised of his land and before he hath entred into or recovered the land he doth grant or give the land or his right to the land to a stranger or grant a rent charge out of the land to a stranger in these cases the grants are not good And yet such grants by fine may be good by way of estopell And by a release also the right may be extinct But if one that hath a reversion upon an stoppell estate for life and he grant a rent issuing out of this land in this Perk. Sect. 92. 98.
right of the wife is saved so as she makes her claime c. within five years after her husbands death d Dier 354 So if husband and wife tenants in speciall taile have issue and the wife die and the husband marry another wife and have issue and levy a fine Sur cognisance de droit come ceo c. and take backe by the same fine an estate in speciall taile the remainder over c. and die the issue by the first wife is barred e Co. 3. 90. So if tenant in taile be disseised or make a feoffment in fee and after levie a fine with proclamations to the disseisor or to a stranger the issues in taile are hereby barred for ever the continuance of the possession in a nother notwithstanding f Co. super Lit. 372. So if a gift be made to the eldest sonne and the heires of his body the remainder to the father the heires of his body and the father dyeth and the eldest sonne levy a fine with proclamations and dyeth without issue this shall barre the second sonne for ever for the remainder descended to the eldest g Cûria trin 21 Jac. Co. E So if lands be given to an eldest sonne and the heires of the body of his father the father being then dead and he levy a fine of this land this will barre the younger brother h Dier 3. But if the issue in taile doe not make his title by him that did levy the fine there the fine will not barre and therefore if my father be tenant in taile and his brother disseise him and levy a fine and he and my father dye this fine shall not barre me as issue in taile because I doe not make my title to the land by him but if I suffer five years to passe and doe not make my claime c. by this meanes I may be barred by the fine i Plow 435. And if the fine be levied of another thing then the thing it selfe entailed As if the tenant in taile grant by fine a Rent Common or the like out of the land intailed this fine will not barre the issue So if a Rent be entailed and the tenant in taile of the Rent disseise the terre-tenant of the land out of which the rent doth issue and then levy a fine of the land this is no barre to the issue of the Rent 2. Albeit the fine be a double fine 2 Co. 76. 3. 85. super Lit. 353. Bio fines 118. Dier 279. with a grant and render yet it is within these Statutes and will barre the issue in taile as well as a single fine so as the grant and render be of the land it selfe and not of any profit apprender out of it And therefore if husband and wife be tenants in speciall taile and they levy a fine with proclamations and the Conusee grant and render the land to them and their heires this fine will barre the issue in taile And if tenant in taile joyne with I. S. and levy a fine to a stranger and the stranger doth grant and render the land againe to I. S. for years and to the tenant in taile in fee afterwards the issue in taile is barred by this fine So if there be tenant for life the Remainder in taile and he in remainder in taile accept of a fine from a stranger and grant and render to the stranger againe for years with a remainder over hereby the issue in taile is bound k Plow 435. If tenant in taile accept of a fine of the land entailed from a stranger and then grant and render a Rent out of the land to the stranger by the same fine this will not bind the issue in taile to pay the same Rent l Dier 117. If tenant in taile make a feoffement on Condition and die having two sisters inheritable to the taile and one of them levy a fine with proclamations sur Release to the feoffee of the whole in this case it is doubted whether the other sister be barred of her halfe or not 3. Albeit the tenant in 3 Co. 3. 86. 87. 1 in Shelleys Case taile die before all the proclamations be finished yet when they be finished as they may be after his death the issue in taile are bound by the fine for howsoever by the death of the tenant in taile the right of the estate taile doth descend to the issue yet when the proclamations are passed this right that doth descend is bound by the Statutes and the issue cannot by any claime c. save the right of the estate taile that doth descend unto him 4. Albeit the 4 Co. 3. 84. 91. issue in taile be within age out of the Realme under Coverture non compos mentis or in prison at the time of the fine levied and the proclamations passed yet the estate taile is barred by the fine And therefore if A. be tenant for life of land the remainder to B. in taile the reversion to B. and his heires expectant and B. levy a fine to C. and his heires and hath issue and die before all the proclamations are passed the issue in taile being then out of the Realme the proclamations are made and after the issue in taile cometh into the Realme and claimeth the remainder in taile upon the land in this case the estate taile is barred for ever 5. These Statutes doe extend to fines levied by tenant in taile by 5 Co. 3. 90. Dier 279. Plow 435. Conclusion and the issue shall be bound by the fine of their Ancestor unto whom they are privy in estate and bloud albeit partes finis nihil habuerunt tempore finis And therefore if the issue in taile in the life of his Ancestor when he hath onely a possibility As if there be grandfather father and sonne and the grandfather be tenant in taile and the father levy a fine of the land before the grandfathers death and then the grandfather dye before the father and after the father dye in this case the issue is barred by this fine †Curia Trin 21. Jac. Com. B. Godfry Wades case Dier 48. so also if the grandfather survive the father But in case of a collaterall descent if the collaterall Ancestor die in the life time of his father without issue this fine is no barre but if he survive his father contra So if lands be given to the grandfather and his wife in speciall taile and the grandfather dieth and the father doth disseise the grandmother and doth levy a fine with proclamations the grandmother dieth and then the father dieth in this case the sonne is barred m Co. 3. 50 51. 9. 140. So if lands be conveyed in taile to a woman for her Jointure within the Statute of 11 H. 7. cap. 20. and whiles shee liveth the issue in taile doth levy a fine of the land by this the issues inheritable to the estate taile are barred for ever
n Plow 434 435. So if tenant in taile make a feoffement or be disseised and after levy a fine with proclamations for a stranger hereby his issues are barred for ever o Curia 21. Iac. Co. B. So if tenant in taile die and his issue before his entry having a freehold in law only doth levy a fine with proclamations this shall be a barre to his issues and to his collaterall heires and brothers of the halfe bloud p Idem So if a tenant in taile have foure daughters and one of them levy a fine in the life of the father this will be a barre to her issue for the fourth part of the land q Co. 3. 50 51. 9. 140. But in these cases before and such like where the issue in taile doth levy a fine in the life time of the tenant in taile the tenant in taile himselfe may after levy a fine of the land and thereby barre his issue and the Conusee also to whom his issue hath levied a fine and therefore in all these cases it is supposed that the tenant in taile doth dye and suffer the right to descend to his issue t Co. 10. 50. 9. 141. 3. 50 51. If lands be given by will to one when he shall come to his age of twenty four years to hold to him and the heires of his body and he after his age of twenty one years levy a fine of this land with proclamations this is a barre to the issue in taile If a disseisor make a gift in taile the donee make a feoffment to A. and after levy a fine with proclamations to B. that hath nothing in the land this fine will barre the issues in taile and they shall not avoid it by pleading that partes finis nihil habuerunt c. but it is no barre to the disseisee for he may avoid it by this plea when he will s Co. 3. 84. And à fortiori therefore if a fine be levied by the tenant in taile that hath only an estate of freehold in remainder or reversion is good as if A. be tenant for life the remainder to B. in taile and B. levy a fine albeit this be no discontinuance yet it is a barre to the estate Discontinuance taile t Trin. 21 Iac. Co B. Will. Godfrey versus Wades case But if tenant in taile have issue a sonne and a daughter and the sonne living the tenant in taile levy a fine and dye without issue and then the tenant in taile dieth by this the daughter and the estate taile is not barred So if the younger sonne levy a fine in the life of the father and then the tenant in taile dye this is no barre to the elder sonne So if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the sonne doth levy a fine of the land this is no barre to the daughter So if tenant in taile have a daughter his wife being with childe of a sonne and the daughter levy a fine and after the sonne is borne this fine shall not barre the sonne for these howbeit they be privies and heires to the bloud yet are not privies and heires to the estate 6. Albeit the estate passed by the fine be afterwards 〈◊〉 J Co. 3. 91. before all the proclamations had avoided yet the issue in taile is barred by it And therefore if tenant in taile discontinue in fee and after disseise the discontinuee and levy a fine with proclamations to a stranger and take an estate backe by Render in the same fine and the discontinuee before all the proclamations passe enter and claime and so avoid the fine yet hereby the estate taile is barred a Per Popham et Fenner Iust M. 39. 40. Eliz. B. R. And if tenant in taile infeoffe the issue in taile and after disseise him and levy a fine the issue enter and after the proclamations passe and after the issue in taile doth infeoffe the tenant in taile which levied the fine and dyeth it seemes this fine shall barre the issues in taile 7. This is a barre to the estate taile 7 Co. 1. 76. super Lit. 372. and to the issues onely and is no barre to him in remainder or reversion and therefore when the estate taile is spent this barre is at an end And therefore if an estate be limited to A. and B. his wife and the heires males of the body of A. the remainder to C. and A. and B. have issue and A. dye and B. and her issue or her issue alone levy a fine this will barre the issues of the issues whiles there be any but they faile it will not barre C. in remainder except he suffer five years to passe and so be barred by his non claime So if tenant for life and he that is next in the remainder in taile joyne in a fine this is a good barre to the issues in taile for ever as long as that estate taile shall continue but not to him that is next in remainder nor to any other that shall come in of any remainder in taile or in fee nor to him in reversion x Co. 10. 96. 9 Iac. B. R. If lands be given to A. and the heires males of his body the remainder to B. and the heires males of his body the remainder to the right heires of A. and A. doth bargain and sell this land by deed indented and inrolled to I. S. and his heires and after levy a fine of it sur Conusance de droit come ceo c. to him and his heires by this the remainder to B. is Discontinuance not discontinued but it is a barre to the estate taile by the Statutes and causeth the estate of the bargainee to last so long as the tenant in taile hath issues of his body but if the fine had been before the bargaine and sale it had been a discontinuance of the remainder but in neither case a barre to him in remainder unlesse he suffer himselfe to be barred by his non-claime within five yeares after his remainder happen to come in possession 8. If there be 8 Co. super Lit. 372 tenant in taile the remainder to him in taile and the tenant in taile levie a fine of this land hereby both his estates are barred Et sic de similibus y y Bro. Fines 121. Co. 6. 55. Dyer 4. Co. super Lit. 372. Co. 8. 17. 78. But all this notwithstanding If lands be conveyed to a woman in taile for her joynture within the Statute of 11 H. 7. chap. 20. and she levie a fine of this land this will not barre the issues in taile Or if lands be given in taile to any subject by the Kings own gift or provision and the tenant in taile levie a fine this fine shall not bind the issues in taile nor the King but others it will barre for these fines are
then the 500l the interest and the 200l is cast together and so we agree upon an Annuity of 80l per annum for fourteene years which is assured by Conveyances unto me in this case the contract is usurious and all the assurances made to perfect it are void And yet regularly where the principall mony is lost Curia Hil. 14. Ja. B. R. Sanders case the contract is not usurious If a man desire to borrow of me 100l for a yeare and I am content to let him have it for the use of 8l but withall I compell him to take a lease of me of a house at 60l rent which in truth is worth but 30l this contract is usurious and therefore the assurances thereupon made void Et sic de similibus But if a man the 17th of July 1579. grant me a rent of 20l. per Co. 5. 69. annum for the loane of 100l to be paid every halfe yeare and the first payment at Christmasse 1580. and it is agreed between us that if he pay the 100l the 17th of Iuly 1580. that then the rent shall cease this contract is not usurious and therefore the assurances thereupon made are not void but good But if in this case there be a private or collaterall agreement between us that he shall not pay the 100l and redeem the rent and that clause be put in only to evade the Statute then is the contract usurious notwithstanding and the deeds and assurances thereof void Et sic de similibus If one borrow 100l after the rate of 8l per centum and Hill 7. Jac. B. R. Curia the borrower do afterwards pay part of the principall and all the use within the yeare and the lender doth receive it or the lender doth sue for his mony within the yeare these subsequent acts do not make the contract or deeds or assurances thereof void for it is a rule that if the originall contract be not usurious no matter ex post facto can make it so If one borrow of me 10l and bind himselfe Bro. Obligation 79. to pay me by a day and moreover bind himselfe that if he pay it not by the day that he shall pay me 20l. for it this contract and the deed for perfection of it are good for this is not usurious for all Obligations with conditions for payment of mony lent are of this nature And yet if one borrow 100l of me and for this mortgage land to me of a greater value then 8l per annum on condition that if he pay the mony at any time before the years end then the assurance to be void this should seem to be an usurious contract for in this case I am sure to have by the agreement more then after the rate of 8l per centum and so it is not in the last case before If one borrow 100l for a yeare and give the Broker 20l. Per. â—ust Brigman Hil. 7. Car. to procure it this will not make the contract usurious nor the assurances void but for this the Broker may be punished Also all Obligations made to a Sheriffe contrary to the Statute Obligations made to a Sherriffe contrary to the statute Collusion in â—raudulent convâ—yances 1. To deceive purchasors of 23 H. 6. ch 10. are void or at least voidable by pleading But of this see in Obligations infra A deed also made containing Stat. 27 El. ch 4. Co. super Lit. 3. stat 39 El. â—h 18. the Grant of any thing with intent and of purpose to deceive and defraud one that shall afterwards buy the same thing is void For it is to this purpose provided by a Statute Law That all fraudulent conveyances of land or any rent or proâ—it out of land made by whomsoever with intent to deceive or defeate any that shall purchase the land or any rent or profit out of it for mony or other good consideration of the fruit and effect of their purchase shal be void against such purchasors for so much as they buy and against all others that come in by or under them But all such conveyances as are made bonâ fide and upon good consideration are not to be accounted fraudulent For the better understanding of which Statute and the Law in these cases observe That conveyances bonâ fide are opposed to such as are upon and with any trust expresse or implied And good considerations are set down in the Statute to distinguish from such as are not valuable as nature bloud and the like If one convey land with a present or future power of revocation or alteration at his will that doth convey it this shall be said a fraudulent conveyance as against him that shall afterwards purchase this land So that if one convey his land to the use of himselfe for life and after to the use of divers of his bloud with a future power as after the death of H or after such a day to revoke it and before the Co. 3. 82. 83. day he sell this land to a stranger for a valuable consideration in this case the first deed shall be said to be fraudulent and void as to him that shall purchase the land to doe him any hurt And if one convey land with such a power of revocation and after with an intent to defraud a purchasor make a feoffment to a stranger to extinct the power and after sell the land for valuable considerations to a stranger in this case both the first and the second deed as to the purchasor shall be said to be fraudulent and therefore void And if there be grandfather father and son and the grandfather makes Co. 6. 72. a lease for 100. years to the father and the father to prevent the drowning of the lease by the descent of the reversion to him doth assigne over the lease to certaine friends of his to the use of his son an infant under pretence to pay debts the grandfather dieth the father doth continue the occupation of the land and maketh estates and doth all acts as owner of the land the sonne payeth no debts and the assignement albeit divers persons of quality were named assignes was delivered to one of the assignes of meane estate in private and after the father doth sell the land for valuable consideration in this case this assignment shall be taken to be fraudulent and void as to the purchasor And if the father make a fraudulent conveyance and after continue the occupation of the land and it descend to the sonne after the fathers death and he sell it for valuable consideration in this case the purchasor may avoid the conveyance made by the father as well as if it had been made by the sonne himselfe and that whether the sonne be privie to the conveyance made by his father or not And if the fraudulent conveyance bee made to the King yet it is void as to a purchasor as if it were made to a common person And
is good And in case of a Subject also if Prerogative a lease be made by deed in writing of any such thing for a terme of years reserving a rent this may be good by way of contract to produce an action of debt though not as a rent to be distrained Debt for And thus by apt words an apt rent out of manors and such like memorable things or divers rents may be reserved upon one grant As if one grant the Manors of A B and C rendring for Co. 5. 55. Dier 308. Co. super Lit. 47. 164. 213. A 20 s. for B 20 s. and for C 20 s. these are good Rents and severall So if one grant the manors of A B and C rendering 3 l. viz. for A 20 s. for B 20 s. and for C 20 s. this is a good reservation but in this case the rent is intire Also one may reserve one rent one yeare and another rent another yeare as 10 s. one yeare and 20 s. another yeare or one may reserve a rent to be paid every second or third yeare and no rent the other yeares or one may reserve one kinde of rent one yeare and another kinde of rent another year and these reservations are good And these Co. super Lit. 225. 8 H. 7. 9. Bro. Fine 36. Reservation 4. reservations may be by fine aswell as by deed or it may be in case where the lessor hath a reversion of the land or upon a partition to make an equality without any deed at all But if it be upon an exchange to make an equality it is not good except it be by deed f Co. super Lit. 214. 143. 47. Dier 222. If two Joint tenants joine in the grant of their land by deed indented and the rent is reserved to one of them this is a good reservation and shall goe to him alone But if it be by word or by deed Poll that the lease is made the rent shall goe to them both g Adjudge Mich. 8. Car. in Blands case And if a man possâ—ssed of a Terme joine his wife with him and they both assigne over this Terme by indenture rendering a rent to them two and the survivor of them and shee doth not seale the deed in this case the reservation as to the wife is void And if the reservation be of the rent to a stranger that is no party to the deed and to him only this reservation is void And therefore if the father and his sonne and heire apparant by indenture lease Hobarts Rep. 274. Oates Fith Co. 3. his land for years to beginne after the fathers death rendering rent to the sonne it is void A Condition is a clause of restraint in a deed or a bridle annexed and joined to an estate staying and suspending the same and making 10. Condition Quid. it incertaine whether it shall take effect or no. A Warranty is a clause or covenant made in a deed by the one 11. Warranty Quid. party unto the other whereby the feoffor donor or lessor doth for him and his heires grant to warrant and secure land granted to the feoffee donee or lessee and his heires during the estate A Covenant is a Clause of agreement contained in a deed whereby 12. Covenant Quid. either party is bound to doe performe or give something to the other And of all these see at large afterwards In the Construction of deeds it must be considered 1. How a Co. super Lit 302. Perk. Sect. 66. deed in the grosse shal be taken and enure 2. How it shall be taken 13. How and to what purpose a deed of grant in grosse shall enâ—â—re and be constrâ—ed and taken and expounded in the severall parts and peeces of it And for the first these Rules are to be known 1. If divers joine in a deed and some are able to make such a deed and some are not this shall be said to be his deed alone that is able as if divers joine in the grant of a thing by deed one alone hath all the estate and the rest have nothing in the thing granted it shal be said to be his grant alone that hath the estate And so è converso If a deed be made to one that is uncapable and to others that are capable in this case it shall enure only to him that is capable 2. A deed that is intended and made Dier 251. Co. 2. 35. super Lit. 49. to one purpose may enure to another for if it will not take effect that way it is intended it may take effect another way And therefore a deed made and intended for a release may amount to a grant of a Reversion an Atturnement or a Surrender or è converso And if a man have two waies to passe lands by the common law and he intendeth to passe them one way and they will not passe that way in this case ut res valeat it may passe the other way As if a man beseised of two acres of land in fee and letteth one of them for years and after intending to passe them both by feoffement maketh a Charter of feoffement and maketh livery in the acre in possession in the name of both the acres in this case the acre in possession only doth passe but if the lessee of the other acre Atturne then the reveâ—sion of that acre will passe also But where a man may passe lands by the Common law or by raising of a use and setling it by the Statute there in many cases it is otherwise As if the father make a Charter of feoffment to his sonne and a letter of Atturney to make livery and no livery is made in this case no use shall arise to the sonne So if a man in consideration of marriage make a feoffement with a letter of Atturney to give livery and no livery is made in this case no use will arise And so was it held by Ch. Justice Popham B. R. for the inteÌ„tion of the parties doth work much in the raising and direction of uses And therefore it is said that when a man doth intend to passe land one way it shall never passe another way contrary to Dier 96. his intent as if one covenant for good considerations to levy a fine of land to the use of I S and his heires if no fine be levied no use shall arise upon the covenant If one by words of Bargain sell give 19 Eliz. Thorold Gordens case and grant make a feoffement of his house for money and intending to passe it by way of bargaine and sale and Inrolment the deed being made there being a Master of the Chancery in the house whereof the feoffement is made he doth acknowledge and deliver the deed before him in this case if the deed be not inrolled the conveyance is void and that delivery shall not amount to a livery of seisin And yet when the intent is apparent to
body or the or his heires females of his body by this the grantee hath an estate taile So if ands be given to a man to have and to hold to him and the heires males or to him and the heires females of his body begotten in both these cases it is an estate tail If lands be given to a man his his wife to have and to hold to them Lit. idem Co. 1. 140. Co. super Lit. 20. Co. 7. 41. and the heires males or to them and the heires females of their two bodies begotten by this they both have an estate taile And if lands be given to them the heires males or heires females of the body of the husband begotten on the wife by this he hath an estate taile his wife an estate for life only And if lands be given to A to have and to hold to him and his heires on the body of B begotten by this A hath an estate taile and B hath nothing So if lands be given to a man and his wife to have and to hold unto them and the heires he shall beget on her body by this they have an estate taile in them both If lands be given to a man and his wife and the heirs of the body of the husband by this the husband hath an estate in generall taile and the wife but an estate for life If lands be given to him to have and to hold to him and his heires he shall beget on the body of his wife by this he hath an estate taile and she no estate at all If one give his land to his daughter or Cousin in Frankmariage Lit. Sect. 17. by this they have each of them an estate taile without any word of heires or heires of body c. If one give lands to B and his heires to have and to hold to B Co. super Lit. 21. Co. 7. 41. 5 H. 5 6. and his heires if B have heires of his body and if he die without heires of his body that it shall revert to the donor by this B hath an estate taile So if one give lands to B and his heires if he have issue of his body by this he hath an estate taile So if lands be given to B to have and to hold to him and his heires provided that if he die without heire of his body that the land shall revert So if lands be given to A B uxori ejus hered eorum aliis hered ipsius A si dict'hered de dict' A B exeunt ' obierunt sine herede de se c. by this they have an estate taile And so in all such like cases where after a limitation of a feesimple these or such like words are added viz. that if he die without heires of his body the land shall revert for in all these cases the habendum is construed to be a limitation or declaration what heires are meant before If lands be given to A and B a young man and maid unmaried to have and to hold to them and the heires of their two bodies Co. super Lit. 26. Plow 135. by this each of them hath an estate taile and if they mary their heires may inherite it If lands bee given to the sonne to have and to hold to him and Co. super Lit. 7. Co. 8. 87. Ass Pl. 47. 5 Ass 14. his heires of the body of his Father by this the sonne hath a fee-simple But if the words bee to have and to hold to him and the heires of the body of the Father engendred by this it is an estate taile in a deed as it is in a Will And if the Father be dead the Law Will. is so also but it seems the sonne shall have by this only an estate for life except he be issue in taile to his father per formam doni So if there bee grandfather father and sonne and the father dieth and lands be given to the son to have and to hold to him and the heires of the body of the grandfather this is an estate taile in the sonne but neither the father nor the grandfather have either of them any estate in these cases If lands be given to I S and the heires of the 12 H. 4. 1. body of his wife being dead begotten by this I S hath an estate taile If one grant lands to I S to have and to hold to him and the Co. super Lit. 385. heires of his body issuing the remainder to I D and his heires in forma predicta by this I S and I D after him have each of them an estate taile If one grant lands to A to have and to hold to him for life the Co. 2. 91 super Lit. 22. 39. Ass Plow 20. remainder to the first sonne of A and the heires males of the body of that first sonne by this the first sonne hath an estate in taile and A his father but an estate for life only But if lands be granted to A for life the remainder to the heires of the body of A by this A hath an estate taile in him And if lands be given to a man and his wife to have and to hold to them and one heire of their bodies lawfully begotten and to one heire of the body of that heire by this there is an estate taile made yet so as it shall last only during the lives of those two heires If one grant lands to another to have and to hold to him and to Co. super Lit. 26. his heires of the body of such a woman lawfully begotten by this he shall have an estate taile for begotten shall be intended by the donee on that woman If there be husband and wife and they have issue a sonne and Co. super Lit. 26. daughter and lands are given to the wife to have and to hold to her and the heires of her late husband on her body begotten by this the wife hath an estate for life and the son an estate in taile and if he die without issue it shall goe to his daughter per formam doni If lands be granted to the husband of A and wife of B to have Co. super Lit. 20. and to hold to them and the heires of their two bodies by this they have each of them an estate in taile in them for there is a possibility that one husband and wife may dye and then the other husband and wife may intermary If there be father and sonne and lands are given to the father 12 H. 4. 3. Dyer 247. to have and to hold to him and the heires of the body of his son by this the sonne hath an estate taile but the father as it seemes but an estate for life If lands be given to the mother for life the remainder to her son Lit. Sect. 352. and the heires of the body of his father on her begotten the father being dead by this the son
any estate in this case I S hath an estate for life only If lands be granted to A and B to have and to hold to them Dier 186. for their lives to the use of C for his life by this C hath an estate for his life if A and B live so long If a tenant in taile grant totum statum suum by this the grantee Lit. Sect. 613. Co. 1. 53. super Lit. 345. Plow 562. 162. Co. super Lit. 24. hath an estate for the life of the grantor and no longer And if a lessee for life grant all his estate hereby his estate for life doth passe for this is as much as he can lawfully grant If a man have a sonne and a daughter and die and lands be granted to the daughter and the heires females of the body of the father it seemes by this she hath only an estate for life If one grant land to another to have and to hold to her whiles Co. super Lit. 42. 234 235. she shall live sole or during her widowhood or so long as she shall behave her selfe well or so long as he shall dwell in such a house or so long as she pay 10 l. yearly or so long as the coverture between her and her husband shall continue or one grant lands to a man to have and to hold unto him untill he shall be promoted to a Benefice or the like in all these cases if livery of seisin be made according to the deed or if the grant be of such a thing whereof no livery is requisite the grantee hath an estate for his life and no more and that determinable also If one grant lands to I S. to have and to hold to him for life Co. super Lit. 183. 42. Plow 161. F. N. B. 168. and doth not say for whose life this regularly shall be taken for the life of I S the lessee and not for the life of the lessor But if the lessor himselfe have but an estate for life in the lands granted then the lease shall be construed to be and endure during that life only by which the lessor did hold to prevent a forfeiture And if he that doth make the lease be tenant in taile of the land this shall be taken to be a lease for the life of the lessor And if a tenant for life of land make a lease for years of it and then grant his reversion by the name of a reversion to another To have and to hold to him and his heires by this he hath only an estate for the life of the grantor and no more So if tenant in taile of land grant it to one for years and after grant his reversion to another To have and to hold to him and his heires this shall be construed to be an estate for the life of the tenant in taile and no longer and the atturnement of the tenants in these cases will not alter the cases And so it is in case of a Release also as if tenant in taile doth release to B being lessee for years of the land all his right to the land this shall be taken to enure but for the life of the tenant in taile and no longer as if a man retaine a servant and say not how long this shall be taken for a year Constructio legis non facit injuriam If one grant to I S that if he be not paid yearly for his life Co. super Lit. 147. Co. 8. 85. 40 s. that he shall distraine in the land of the grantor for it by this I S hath an estate for life in the rent And if a man by his deed grant a rent of 10 l. issuing out of all his land quarterly at the usuall feasts this is an estate for life of the grantee If one grant lands to I S and I D. To have and to hold to them Co. 5. 9. 11. 3. during their lives omitting these words and the longest liver of them by this notwithstanding they shall hold it during the life of the longest liver of them And if lands be granted to A To have and to hold to him during the lives of B C and D without any more words by this A hath an estate during all their lives and during the life of the longest liver of them * 38 Eliz. B. R. in the case of Ros Adwick And if lands be granted to A To have and to hold to him during his life and during the lives of B and C by this he hath a lease for his owne life and the lives of B and C and the longest liver of them But if a lease be made to I S of land to have and to hold to him during the time that A and B shall be Justices of Peace or during the time that A and B shall be of the Inner Temple or the like in these cases the â—ailer of one doth determine the estate †Adjudged B. R. 8 Eliz. Hobaâ—t Wisemores case And if a lease be made to B only To have and to hold to him and C for their lives by this B hath an estate for his owne life only and no more and C hath nothing at all And here by the way let it be observed in these and such like cases where lands are granted to one man to Co. super Lit. 41. 239. 388. Plow 556. 28. Dier 328. 321. 264. Co. 10. 98. Occupant have and to hold to him or to him and his assignes or to him his executors administrators and assignes during the life or during the lives of others and in most cases where a man is tenant pur auter vie i. for the life or lives of another or others if the tenant pur auter vie in possession die his estate shall not goe to his heires executors or administrators unlesse they can first get into possession after his death but he that can first get into the possession of the land after the death of the tenant pur auter vie shall have it for his life and after his death then he that can first get into the possession againe c. And therefore if the land were let by the tenant pur auter vie at the time of his death to any under tenant for years or for one year or at will and this undertenant be in possession at the time of the death of the tenant pur auter vie this undertenant shall have it for his life if the life or lives by which it is held so long live for the rule in this case is occupanti conceditur Et capiat qui capere potest And this estate is called an occupancy and he that hath it an occupant To prevent which mischiefe the lessee must take care when he takes his lease to have it made to him and his heires during the life or lives of him or them by whom it is held for in this case after his death his heire and none other shall
rent out of the land generally without any limitation this shall be construed to enure for a grant of the rent so long as the estate of the grantor doth continue But if he grant a rent by expresse words for the life of the grantee by this the grantee shall have it for all the terme if he live so long If one grant lands to I S To have and to hold to him for life Co. super Lit. 218. reserving the first seven years a rose and if he will hold the land over that he shall pay a rent in money and no livery of seisin is made by this it seemes in certaine is made a lease for seven years untill the Condition be performed and then also it seemes it is a lease for no longer time And so perhaps it will be if livery of seisin be made If one grant a rent of 5 l. per annum unto I S To have and to Co. super Lit. 42. Plow 273. hold to him c. untill he shall receive 20 l. in this case he shall have a lease for foure years of this rent But if lands be granted to I S To have and to hold c. untill he shall receive 20 l. out of the profits of it in this case if livery of seisin be made the grantee hath an estate determinable upon the levying of the money and if no livery be made he hath no estate at all but at will If one make a lease for life and say that if the lessee within one Co. super Lit. 218. yeare pay not 20 s. that he shall have but a term for 2. years by this if he doth not pay the money he hath only a lease for 2. years albeit livery of seisin be made upon it If one make a lease to I S To have and to hold to him his executors Co. 9. 63. 60. c. for 10. years if I D shall live so long and I D is dead at the time when the lease is made in this case I S hath an absolute lease for 10. years If one grant lands to I S To have and to hold to him his executors Plow 273. Co. super Lit. 45. Dier 24. c. for 3. years and so from 3. years to 3. years during the life of I S or from 3. years to 3. years during the life of the lessee by this it seemes I S hath a lease for 6. years and no more And if one grant lands to I S To hold for 3. years and after the end of those 3. years for 3. other years and after the end of those 3. years for 3. other years during the life of the lessor by this it seemes I S hath a lease for 9. years and no more And yet if in these and such like cases where a lease is made from so many years to so many for the life of any person livery of seisin be made upon this deed secundum formam chartae this perhaps may be an estate for life If lands be granted To have and to hold from our Lady day pro termino unius Anni sic de uno Anno in unum Annum quamdiu 14 H. 8. 10. Co. 6. 35. 10. 106. ambabus partibus placuerit by this the grantee hath a lease for 3. years only in certain and afterwards a lease at will And if lands be granted to have and to hold from the Nativity of Christ next pro termino unius Anni et si in fine dict' unius Anni ambae partes placerent quod eadem presens dimissio foret renovata tunc habend premissa to the lessee c. ab post dictum festum Nativitatis Domini usque terminum trium Annorum extunc prox ' sequen ' by this the grantee hath a lease in certaine but for one year only and if the parties agree againe a lease for 3. years If one make a lease to I S To have and to hold to him for years Co. 6. 35. 21. H. 7. 38. and say not how many years by this the lessee hath a lease for 2. years and no more If one grant his land to I S To have and to hold to him untill Co. 3. 19. I D shall come to 21. years of age in this case if I D die before that time the lease is ended If a man possessed of a terme of years of land doth grant the land to another and his heirs this by construction will amoumt Co. 1. 44. 7 H. 4. 42. to a good grant of his interest If lands be granted to husband and wife and to I S To have Limitation of estates to divers persons Dier 263. and to hold to them and to the heires of the husband and I S by this the wife hath only an estate for life in a moity w th her husband and the husband and I S have the feesimple in Jointenancy to them and their heires Co. 8. 87. 10. 50. super Lit. â—5 Dier 145. If lands be granted to two brothers or two Sisters or to a brother or sister or to a father and sonne or any others To have and to hold to them and the heires of their bodies begotten by this they have joint estates for their lives so that the survivor of them will have the whole for his life and severall inheritances i. estates in generall taile by moities in common one with another And if lands be granted to two men and their wives and the heires of their bodies begotten in this case they have joint estates for life and afterwards the one husband and wife shall have the one moity and the other the other moity in common And and if lands be granted to a man and two women To have and to hold to them and the heires of their bodies by this they have each of them an estate taile in common with the other If lands be granted to husband and wife To have and to hold Lit. Sect. 27 28 29. Co. super Lit. 26. Dier 340. Co. 1. 100. to them and their heirs of their bodies issuing or in any such like manner by this the wife hath an estate taile as farre forth as the husband But if it be granted to them To have and to hold to them and the heires of the body of the husband or to the husband and wife and the heires of the husband which he shall have by his wife or in any such like manner by this the wife hath only an estate for life and the whole estate taile is in the husband So via versa if lands be granted to husband and wife and the heires of the wife upon her body begotten by the husband by this he hath an estate for his life only and his wife the whole estate taile And if lands be granted to the husband To have and to hold to him and the heires of his body on the body of his wife begotten or To have and to hold to him and
2. Quotuplex And this is either expresse or in deed i. when the covenant is Termes of the law tit Covenant Co. 4. 80. 5. 17. F. N. B. 145. 146. Dier 338. 257. expressed in the deed As when A by deed doth covenant with B to serve him for a year and B doth covenant with A to pay him tenne pound for this service Or it is implied or in law i. when the deed doth not expresse it but the law doth make and supply it As when one doth make a lease for years by the words demise or grant without any expresse covenant for quiet enjoying in this case the law doth intend and make such a covenant on the part of the lessor which is that the lessee shall quietly hold and enjoy the thing demised against all persons at least having title under the lessor and at least during the lessors life and as some thinke during the whole terme And hereupon an action of covenant may be brought against him in the reversion so that if the heire that is in by descent put out the termor of his father the termor may have this action against him A covenant is also either reall i. that whereby a man doth bind himself to passe a reall thing as lands or tenements as a covenant to levy a fine of land in which case the land it self is to be recovered or when it doth run in the realty so with the land that he that hath the one hath or is subject to the other and so a warranty is called a reall covenant Or it is personall i. when it doth runne in the personalty and not with the land but some person in particular shall have benefit by it or be charged with it as when a man doth covenant to doe any personall thing as build or repair a house serve him or the like And these also are some of them said to be inherent i. such as are conversant about the land as that the thing demised shall be quietly enjoyed shall be kept in reparations shall not be aliened or if it be to be sold that the lessor shall have the first refusall to pay rent not to cut downe timber trees or doe wast to fence the copices when they be new cut to make further assurance or the like And some of them are said to be collaterall i. that are conversant about some collateral thing that doth nothing at all or not so immediatly concern the thing granted as to pay a summe of money in grosse to build a house in another mans ground to make a feoffment or lease of other land to give other security to perform the covenants or to pay the rent or that the lessor shall distrain for the rent in some other land then that which is demised or the like these are collaterall covenants There is also a covenant to stand seised of land to uses which is now become a kind of conveyance of land for which read Vses at large The most frequent use of a covenant is to binde a man to doe 3. The use and operation of it Co. 1. 154. Litt. Bro. Sect. 309. 17 H. 8. 16. Plow 308. F. N. B. 145. something in futuro and therefore it is for the most part executory and if the covenantor doe not perform it the covenantee may have thereupon for his relief an action or writ of covenant against the covenantor so often as there is any breach of the covenant And this writ of covenant is therefore defined to bee a A writ or action of covenant Quid. writ lying where a man is bound by a covenant in a deed and hath broken it And in this case commonly the party damnified shall recover damages only for the breach and if hee have a Judgement in an action brought for one breach and after the covenantor doth breake the covenant again in this case hee may bring a new action and so for every breach But a covenant doth somtimes Use also make a transmutation of a property and possession of things as in case of a covenant to stand seised of land to uses for which see Vse And in case where one doth covenant that another shall Lease have a peece of land for five years this is a good lease for five years for which see Lease And in case where one doth covenant with another that if he pay him ten pound such a day he shall have all his cattle in Dale or his lease for years hee hath of the Manor of Contract Dale in this case it seems if he pay the mony at the time hee shall have the property of the goods and of the lease for years It is said therefore that in some cases upon the writ of covenant the party shall recover the land it self out of which he hath been ejected A covenant may be in the affirmative or in the negative And it Plow 330. 27 H. 8. 16. 4. What shall bee said a good covenant in deed upon which an Action of covenant may be had And what not 1. In respect of the manner of making it may be executed i. that a thing is done already or executory i. that a thing shall be done hereafter and these are all good But if it be of a thing present as if I covenant that my horse is yours this is void a F. N. B. 145 G. Co. 3. 63. Ewers case 8 Jac. And these covenants being made by a deed poll are as good and effectuall as when they are made by a deed indented so as the party have the deed to shew for otherwise a common person cannot have an action of covenant for it doth not lie upon a verball agreement neither can it be grounded without a writing except it be by a speciall custome as in London b Litt. Bro. Sect. 450. Co. 2. Lord Cromwels case Dier 57. 150. 21 H. 7. 37. 40 E. 3. 5. And there needs not in this case formall and orderly words as Covenant Promise and the like to make a covenant on which to ground an action of covenant for a covenant may be had by any other words upon any part of an agreement in writing in what words soever it be set down for any thing to be or not to be done the party to or with whom the promise or agreement is made may have this action upon the breach of the agreement And therefore if these words be inserted in a deed amongst other covenants That the lessee shall repair provided always that the lessor shall allow timber Or that the lessor shall skowre ditches provided always that the lessor doe cary away the earth these are good covenants on both sides c Adjudge pasch 14 Jac. B. R. Sir Thomas Bret versus Cumberlands case And if a lease be made of houses by Patent to I S for twenty one years and therein is inserted this clause And that the said I S and his assignes shall repaire the houses when
bargaine and sell land by deed indented to B and before the That the covenant or is seised of a good estate c. deed is inrolled I grant the same land to C and covenant that I am seised of a good estate of it in fee and after the deed is inrolled in this case the covenant is broken If A let land to B and covenant that he shall quietly enjoy it Mich. 8 Jac. Lams case Dier 328. F. N. B. 145. 26 H. 8. 3. Hil. 39 Eliz. B. R. Cornes case Fitz. Covenant 26. Bro. Covenant 40. without the let of any person whatsoever and A himselfe or any For quiet enjoying other person that hath any title to the land by or under him as if he make a lease of it or granta rent out of it to another or any other person that hath any title to the land albeit it be not by or under A as if A were a disseisor and the disseisee doe enter or disturbe B in all these cases the covenant is broken And so also is the law deemed to be by some in case of covenant in deed for quiet enjoying where a stranger or one that hath no title to the land doth enter or disturbe B. But otherwise it is in case of covenant in law for quiet enjoying for in this case if a stranger that hath no title to the land doth enter or disturbe the lessee this is no breach of the covenant in law And in all cases where any person hath title the covenant is not broken untill some entry or other actuall disturbance be made by him upon his title If a man make a lease of land and after make a feoffement of 20 Jac. Bro. Covenant 7. the same land and the feoffee doth disturbe the lessee in this case it hath been said this is a breach of the covenant for quiet enjoying Sed quere If a man purchase land to him and his wife and his heires in fee Hil. 20 Jac. adjudg B. R. Butler versus Lady Swinerton and then make a lease for years of it to I S and covenant for him his executors and assignes that the lessee his executors and assignes shall quietly hold and enjoy the premisses without the let of the lessor his heires or assignes or any other person by or through his or their meanes title or procurement and after the lessor doth die and his wife doth enter and disturbe in this case and by this meanes the covenant is broken And so it is also if A purchase Swans case M. 7 8 El. land of B. To have and to hold to A for life the remainder to C the sonne of A in taile and after A doth make a lease of this land to D for years and doth covenant for the quiet enjoying as in the last case and then he dieth and then C doth out the lessee in this case this was held to be no breach of the covenant So likewise if A be seised of white acre in fee and take to wife B and Dier 42. 26 H. 8. 3. Fitz. Covenant 6. 26. then make a lease of it to C with such a covenant as before for the quiet enjoying and then A doth die and after B doth recover dower by this the covenant is broken and yet if the mother of A recover dower and out the lessee contra So also if a tenant in taile doth make a lease with such a covenant and his issue doth disturbe the lessee this is no breach of the covenant And yet if the lessor be the cause of the gift in taile or procure the disturbance this may be a breach of the covenant And so also it is where a man is seised of land in fee and he doth make a lease with such a covenant and afterwards he doth die and then his heire is in ward by reason of a tenure and hereby the lessee is disturbed it seemes this is no breach of this covenant If one covenant that the wife he is about to mary shall quietly Curia B. R. pase 6. Car. Crowles case enjoy all her goods and that the covenantee shall take it into his possession and the husband doth only take the goods and keepe them in his possession this is no breach of the covenant If a covenant be for the quiet enjoying against all persons but Adjudge Hil. 38 El. Woodroffe versus Greenwood Adjudge Mich 2. Car. B. R. SaÌ„ders case Dier 240. the King and his successors and the Patentee of the King doe disturbe this is a breach of this covenant If two make a lease and covenant that the lessee shall enjoy the land without the let of them or any other and one of them alone doth disturbe the lessee this is a breach of the covenant If a lessee grant and assigne all the land contained in his lease to A and doth covenant with him that he hath not done any act or thing by which the grant or assignment might be impaired but that the assignee his executors c. may enjoy it against all persons and before this time the wife of the lessor had recovered and had execution of a third part of this land for her dower in this case this is no breach of the covenant for the words but that c. doe referre to the former and are not absolute If A grant the Bailiwicke of W to B for life and B assigne it Adjudge Rich versus Row pasch â—3 Jac. Co. B. to C for three years and after to D and C doth covenant with D that he will not doe or suffer to be done any act during the said three years by which the grant made by A may be forfeit but that after the three years ended he may enjoy it in as ample manner as C did or might have done without any act by C and after the three years ended C doth execute a Proces there and thereby incroch upon the office this is no breach of the covenant If A grant land to B and his heires rendring tenne pound rent Curia Hil. 20 Jac. Co. B. Greenway Truckfalds case To free from charges and incumbrances and B doth sell the land to C and his heires and doth covenant with C that from such a day he shall enjoy it discharged of all incumbrances and before that day a Common Recovery is had against C in which A is vouched and this is to the use of C and his heires supposing hereby the rent had been gone which is not so in this case the covenant is broken for this rent is an incumbrance If a lease be made of land for years the lessee devise it to his Co. 10. 52. wife durante viduitate and after to his sonne and he in reversion doth sell the fee to the woman during the widowhood and doth covenant that the land is discharged of all former sales rights titles charges in this case the covenant is broken at the first by
lessee and he doth not clense the ditch by the time by this the covenant is broken but if in this case the lessor doe by force keepe the lessee out of the ditch or place it selfe contra If A and B be Jointenants of a shop and A covenant with Hil. 16 Jac. B. R. Siliard versus Loc. To have liberty to goe in and out of a shop B that he and his assignes shall have free ingresse and egresse in and out of the shop and A doth appoint C his servant to enter as servant to him and to occupy in common with A and this servant doth expell the servant of B in this case this is a breach of the covenant If A covenant with B that B shall come foure times a year 3 H. 4. 8. into the house of A without being outsted by A and A when he To come into a house doth see B comming doth shut the doores and windowes and doth not suffer B to come in by this the covenant is not broken * To mary another Make a feoffment c. Tender and refusall If A covenant with B to mary the daughter of B make a feoffement 33 H. 6. 18. Bro. Covenant 3. Fitz. Barre 62. or doe any other act to C who is a stranger to the covenant and A doth tender it and offer to doe as much as doth lie in his power but the stranger doth refuse it and thereby it is not done yet this doth not excuse but the covenant is broken But if the covenant be to doe any such act to the covenantee himselfe and the covenantor tender it and the covenantee refuse it by this the covenant is performed See more in the last question and in Obligation Numb 7 8 9. and Mich. 7 Jac. Co. B. in Condition Numb 9 10. Any one that is party to the deed to whom the covenant is made 8. Who shall or may have advantage of a covenant in deed or law and bring a writ of covenant upon the breach of it Or not may take advantage of the covenant but not a stranger for if A covenant with B to doe an act to C who is no party to the deed and he doth it not B and not C must sue him upon this breach If a lease be made of land to a husband and wife for years and Co. 5. 17. Dier 257. 47 E. 3. 12. the lessor doth enter upon the land and put them both out or the one of them after the death of the other in this case both of them whiles they both live and the survivor after the death of one of them may have this action of covenant upon the covenant in law So if a wardship be granted to a woman by deed and shee take a husband and die the husband shall have advantage of this covenant in law made by the word grant if he be disturbed So if one by the words demise or grant lease land to a woman sole for years who taketh a husband and dieth in this case if the husband be disturbed he shall take advantage of this covenant in law If a feoffement be made in fee and the feoffor doth covenant Heire Dier 338. to warrant the land or otherwise to the feoffee and his heires in this case the heire of the feoffee shall take advantage of this As if A covenant with B and his heires to infeoffe B and his heires of land and B die before it be done in this case his heires shall take advantage thereof And if A B and C have lands in coparcenery and they purchase other lands in fee and they covenant each to other his heires and assignes to make such conveyance to the heire of him that shall die first of a third part as he shall devise in this case the heire not the executor shall take advanntage of the covenant Executors and Administrators shall take advantage of inherent Executors administrators Co. 5. 17. F. N. B. 145. H. Dier 112. 271. covenants albeit they be not named And therefore if A covenant to doe a thing to B and doe not name his executors or administrators and it be not done it seemes the executors or administrators of B may have an action of covenant for the not doing of it As if one covenant with I S to pay him money at Michaelmas and doe not say to his executors c. and he die before the time in this case his executor or administrator shall take advantage of this covenant and may recover the money * S e Condition Numb 12. Co. 5. 18. 9 Jac. B. R. Wilborne Bestwichs case accord Grantees of reversions shall have the like advantage against Assignees oâ— Grantees Fermors by action only for any covenant or agreement contained in their lease as the lessors their heires or successors might And so also shall lessees against grantees of reversions recoveries in value except by the statute of 32 H. 8. cap. 34 And herein as in the cases of a condition before a difference is taken between covenants that are inherent and covenants that are collaterall For the covenants whereof grantees by this statute shall take advantage are inherent covenants i. such covenants as doe concerne the thing granted and tend to the supportation of it As where a lessee for life or years doth covenant with his lessor and his heires to keep the houses demised in good reparations or the like and after the lessor doth grant away the reversion of all * Mich. 8 Jac. Pimes case or part of the houses to I S in this case I S shall take advantage for any breach of the covenant in his time but not for any breach before the time the reversion was granted But if the lessee doth covenant with his lessor and his heires to pay him a summe of money or make him a feoffement or the like and then the lessor doth grant the reversion to I S in this case I S shall not take advantage of this covenant And yet the executors or administrators of the lessor shall take advantage of this covenant Regularly every assignee of the land or thing demised shall take Co. 5. 17. advantage of inherent covenants as if a covenant be to have Estovers to burne in the house demised or to have timber to repaire or if the covenant be that the lessor or lessee shall repaire or the like And therefore of these assignees in deed and in law assignees of assignees in infinitum shall take advantage and assignees of executors or administrators Tenants by Statute or Elegit or after a sale upon a Fieri facias a husband in the right of his wife any one of these and any other that shall come lawfully to a terme unto which such a conveant is incident albeit he be not named yet may he take advantage of it If a lease for years be made to I S by the words Demise or Co. 4.
assets But if hee that doth so alien c. bee tenant by the courtesie this is no barre to the heire without assets in fee simple from the tenant by the curtesie and then it is a barre for so much And if the heire for want of this assets at the time doth recover the land from his mother and after assets doth descend from the father in this case the tenant shall recover the same land of the mother againe And if she that doth so alien c. to be tenant for Stat. 11 H. 7. chap. 20. Litt. Sect. 727. Co. super Litt. 365. life of the inheritance or purchase of her deceased husband or given unto her by any of the Auncestors of her husband or by any other person seised to the use of her husband or of any of his Auncestors in this case her alienation release or confirmation with warrantie shall not binde the heire whether hee have assets or not But if a man convey lands to the use of himselfe Co. 3. 58. B his wife and the heirs of his body and they have issue C and the father dieth and C disseiseth his mother or getteth a feoffement from a disseisor and then suffereth a recovery with a single voucher and after the wife doth release to the recoverer with warrantie in this case the warrantie is a barre to the issue and not void by the Statute of 11 H. 7. If the husband that is seised of lands in the right of his wife levy Co. super Litt. 366. 381. Stat. Glouc. ch 6. Litt. Sect. 332. a fine or maketh a feoffment in fee with warranty and the wife dieth and then the husband dieth this warranty shall not binde the heire of the wife without assets of other land in fee simple from the father albeit he be not tenant by the courtesie but it is before her death that he doth make the estate and the warranty But a Fine levied by the husband and wife in this case is a good bar to the heir If tenant in taile that is in of another estate i. either by disseisin Co. 3. 62. 22 Ass pl. 37. 29 Ass pl. 34. Fine or by the feoffment of a disseisor doth suffer a common recovery and a collaterall Auncestor of the tenant in taile doth release with warrantie to the recoverer and after the recoverer doth make a feoffment to uses executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case albeit the estate of the land be transferred in the post before the descent of the warrantie yet it shall binde So if hee to whom the warrantie is made suffer a common recovery and after the Auncestor dieth But if tenant in dower enfeoffe a villain with warranty and the Lord of the villain enter into the land before the descent of the warrantie and after the woman dieth this warrantie shall not binde the right of the heir So if a collaterall warrantie be made to a bastard and his heirs and living the Auncestor the Bastard dieth without issue and the Lord by escheat doth enter and after the Auncestor dieth this warrantie shall not binde A collaterall warrantie may descend upon an issue in taile before the right descend and yet be good with this difference that Litt. Sect. 7 H. Co. super Litt. 388 the right be in esse in some of the Auncestors of the heir at the time of the descent of the warranty as if tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile releaseth all his right c. to the disseisor with warrantie and dieth without issue and the tenant in taile hath issue and dieth in this case the issue is barred But otherwise it is where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warrantie as if Lord and tenant be and the renant make a feoffment in fee with warrantie and after the feoffee doth purchase the Seigniory and after the tenant doth cease in this case the Lord shall have a Cessavit for a warrantie doth never bar any right that doth commence after the warrantie If the case be so that if no such warranty had beene made by Litt. Sect. 703. 711. 8. What shall be said a lineall warranty And how such a warranty shall barre the father or other Auncestor the right of the lands or tenements so warranted had or might have descended or come from the same Auncestor and that from and by him that made the same warranty such a warrantie is a lineall warrantie As if a man bee seised in fee of land and make a feoffment of it to another and binde him and his heires to warrant the land and hath issue and die and the warrantie doth descend upon the issue this is a lineall warrantie for that if none such had been Co. super Litt. 371. the right of the land had descended to him as heire to his father and he must have made his descent by him And if there be grandfather father and son and the grandfather be disseised and the father release to the disseisor being in possession with warranty c. and dieth and after the grandfather dieth this is a lineall warrantie to the son and albeit in this case the warrantie descend before the right yet it is a good bar And if there be two brothers Litt. Sect. 707. and the father is disseised and the eldest brother doth release with warranty and die without issue and after the father dieth and the warrantie doth descend to the younger sonne this is a lineall warrantie to him And if lands be given to A for life Co. 1. 66 67. the remainder to his right heires and hee doth make a feoffment with warrantie and die this is but a lineall warrantie And if two parcenours be and the eldest enter into all the land to her owne use and then doth make a feoffment with warrantie and dieth without issue this as to her owne part is a lineall warrantie but as to her sisters part is a collaterall warrantie And in every Co. 8. 52. New Terms of the Law tit Warrantie case where one doth demand an estate taile if any Auncestor of the issue in taile whether he had possession of the land or not hath made a warrantie and if the issue that were to bring a writ of Formedon may or might have by possibility by some matter that might have been done conveyed to himself a title by â—orce of the gift by him that made the warrantie this is a lineall warrantie As if a man be seised of land of an estate taile to him and the heirs of his body begotten and make a feoffment of it and bind him and his heirs to warrant it and hath issue and dieth this warrantie descending upon the issue is a lineall warrantie And if lands Litt.
taile in fee with warranty and die without issue this is collaterall to the middle sonne In the same manner it is in case where the middle sonne hath the same land by force of the same remainder because his elder brother made no discontuance but died without issue of his body and after the middle brother doth make a discontinuance with warranty c. and dieth without issue this is a collaterall warranty to the youngest sonne And in this case if any of the sonnes be disseised and the father that made the gift c. releaseth to the disseisor all his right with warranty this is a collaterall warranty to the son upon whom the warranty doth descend If lands be given to A and the heirs of his body and Co. 8. 52. Litt. Sect. 713. for want of such issue to E his sister and the heires of her body and A doth make a feoffement with warranty and die without issue having two sisters E and S this is a collaterall warranty to E. If lands be given to a man and the heires of his body begotten Litt. Sect. 741. who taketh a wife and hath issue a son by her and the husband doth discontinue the taile in fee and dieth and after the wife doth release to the discontinuee with warranty and dieth and the warranty doth descend to the sonne this is collaterall to him If tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile doth release to the disseisor with warranty in fee and dieth without ifsue and the tenant in taile hath issue and dieth this is collaterall as to the issue If tenant in tail have issue two daughters and die and the elder enter into all to her own use thereof make a feoffment in fee with warranty and die without issue this warranty as to the other sisters part is collaterall but not as to her own If Co. super Litt. 373. the husband and wife tenants in speciall tail have issue a daughter and the wife die and the husband by a second wife have issue another daughter and discontinueth in fee and dieth and a collaterall Auncestor of the daughters release to the discontinuee with warranty and dieth and the warranty descend upon both the daughters this is a collaterall warranty to them If lands be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the father die and the brother release with warranty and die without issue this is collaterall to the daughter If tenant in taile make a lease for life the Litt. Sect. 738. remainder to another in fee and a collaterall Auncestor doth confirm the estate of tenant for life with warranty and die and after the tenant in taile die having issue this is a good binding collaterall warranty during the estate for life And in all these and Litt. Sect. 712. Co. super Lit. 374. Co. 10. 96. Stat. of Glouâ— ch 3. Co. super Litt. 365. Stat. 11 H. 7 chap. 20. such like cases of a collaterall warranty whether the right bee the right of an estate taile or the right of an estate in fee simple that is to be barred it is a bar without any assets for in this case the rule is That a collaterall warranty is a barre to him that demandeth fee simple and also to him that demandeth fee taile without any other descent of lands in fee simple so that the heir on whom the same warranty is descend can never have the land so warranted whiles the warranty doth continue in force but is bound thereby except it be in some speciall cases restrained by Act of Parliament as where the husband alone during his wives life or after her death being tenant by the curtesie make a feoffement by fine or deed of his wives land which shee hath by descent or purchase with warranty this will not barre her heire without assets of other lands in fee simple descended from the same Auncestor that made the warranty Or where a wife after her husbands death shall alone or with her succeeding husband alien release confirm or discontinue with warranty the land she holdeth in dower or in taile of the gift of her former husband or any of his Auncestors this warranty is voidable and will not binde with assets If the son purchase land c. and after let it to his father or any Litt. Sect. 699 700 701 702. Finch 82. Co. super Litt. 〈◊〉 10. What shall be said a warranty that doth begin by Dissâ—â—sin And wâ—at such a warranty doth work other Auncestor for years or at will and he by his deed doth infeoffe a stranger and that with warranty and after dieth whereby the warranty doth descend upon the heire this warranty doth commence by disseisin So if tenant by Elegit Statute Merchant Guardian in Chivalry or Soccage or because of Nurture make a feoffement with warranty and this warranty doth descend on his heir this warranty doth commence by disseisin So if one that hath no right at all enter into my land and make a feoffement to another with warranty So if one Coparcenor enter into the whole land and make a feoffement in fee with warranty this warranty as to the one moity doth begin â—y disseisin So if father and sonne purchase lands to them jointly c. and the father alien the whole to another with warranty c. and after the father dieth this warranty as to the one moity doth beginne by disseisin But if the purchase bee to them two and the heires of the sonne it is otherwise for if the sonne enter in the life time of the father the warranty is avoided for all but if hee doe not enter then as to the fathers moity it is a collaterall warranty And if the purchase be to the father and son and the heirs of the father and the father alien with warranty c. in this case the warranty is good for the whole If the father be tenant for life the remainder to his son and heir Co. 5. 80. super Litt. 366. 367. in fee and the father by covin and consent of purpose to bar the heir by a collaterall warranty maketh a lease for years to the end that the lessee should make a feoffment in fee that the father may release to the feoffee with warranty and all this is done accordingly and the father dieth and the warranty doth descend to the sonne in this case the warranty shall be said to beginne by disseisin But if the father in this case make a feoffement in fee with warranty and die this is a good warranty to binde the sonne albeit it be done of purpose to bar him So if one brother make a gift in taile to another and the uncle doth disseise the donee and infeoffeth another with warranty the uncle dieth and the warranty descendeth on the donor and
of totam illam Communiam suam c. some doe hold this grant to be good Any thing may be granted by the name whereby it is and hath Co. 6. 65. 45 E. 3. 6. Bro. grant 7. Perk. Sect. 116. been usually called of latter times within nine or tenne years or thereabouts albeit it be an improper name and not the ancient name of the thing but a name newly gotten And so a Manor may passe by the name of a mesuage or farme or a farme or Manor by the name of a mesuage if it be so usually called and reputed So the great houses in London called Exceter and Dorset houses may be granted by those names And if a man grant that which in deed is a pasture ground by the name of a wood Or granr that which in 14 H. 8. 1. 27 H. 6. 2. deed is a wood by the name of a pasture ground and the things are called by those names these are good grants of those things And if one grant by the name of a great field that which in deed is but a little close but it is usually called by the name of a great field this is a good grant of this thing So if one grant by the name of a plow land that which in truth is but an acre of land or grant by the name of a Manor that which is but a plow land these grants are good And so as it seemes it is è converso But if a man grant a house or a mesuage by this grant an acre of land will not passe By the grant of services a rent reserved upon an estate taile Co. super Lit. 150. Mic. 7 Jac. Curia B. R. will passe If a man make a lease of one house to another for years and the lessee divide it and make two houses of it and after the lessor doth grant the reversion of it by the name of one house this is a good grant to passe it And if one lease three houses to three severall men at severall times and they divide them into twenty nine tenements and housholds in them all and the first lessor doth grant them by the name of three mesuages this is a good grant to passe them all But if he grant by the name of fifteene mesuages or tenements only it seemes this is good for no more but for fifteene of the subdivided tenements If one recite that he hath a rent charge issuing out of blacke acre Perk. Sect. 72. and white acre and then grant the same rent and in truth it doth issue out of blacke acre only or if he doe recite that it doth issue out of one acre when in truth it doth issue out of both in both these cases the grant is good notwithstanding these mistakes If one be Patron of the Church of S. Peter and Paul in D and Bro. Grant 12. he grant the next Presentation of the Church of S. Peter or of the Church of S. Paul these are void grants to passe the Presentation * Perk. Sect. 79. Per Ch. Justice Hutton Yelverton Co. B. Mic. 3. Car. in the case of Edward Crew If one grant a rent out of white acre by the name of a rent out of blacke acre this grant is void as to charge white acre If one have a Manor called Steeple Lavington and he grant it by the name of west Lavington alias Steeple Lavington by the alias especially if the grant say lying in Lavington and the Manor of Steeple Lavington doth lie in that parish and the grantor hath no other land there If one grant all his lands which he hath in D in this manner All my lands in D which I had of the grant of I S this is a Mic. 2 Jac. in Brownes case agreed good grant of all his lands in D albeit he had them not of the grant of I S but of the grant of another But if the words be all my lands which I had by the grant of I S in D in this case the grant is not good to cary any other lands in D but such as he had of the grant of I S. So if one grant in this manner all my Manor Plow 169. 395. And so was the opinion of Ch. Justice Popham 2 Jac. B. R. of Sale in Dale which I had by descent and in truth he had it not by descent but by purchase this is a good grant of the Manor So if one grant all his lands in Dale and say no more this is a good grant to passe all his lands there But if one grant in this manner all my lands in Dale which I had by descent from my father and in truth I had them not by descent but by purchase this grant is void and will not passe those lands So if I grant in this manner Dier 87. all my lands that I had by the attainder of I S and in truth I had no land by that meanes this grant is void And if I grant after this manner all my lands in B in the tenure of D which I had of the gift of I S and in truth it doth lie in B and is in the Mic. 2 Jac. Adjudge Brownes case tenure of D but it was not purchased of I S this is a good grant to passe the land If a parish lie in two Counties viz. Berk. and Wilts and one Dier 299. Co. 3. 10. grant in this manner all his close called Callis in the parish of Hurst in the county of Berk. and in truth the close doth lie in the county of Wilts this is a good grant to passe the close But if one grant in this manner All his houses in the parish of S. Buttolphes extra Algate late in the tenure of R where in truth he hath no houses there but he hath some houses in S. Buttolphes extra Aldersgate this is a void grant And yet if the grant be in this manner All that my house in the occupation of I S in S. Andrews parish whereas in truth it is in the parish of K. but in the occupation of I S it seemes this grant is good to passe the house But if it be thus All that my house in S. Andrews parish in Holborne in the occupation of I S and in truth it is in another parish but in his occupation this grant is not good to passe the house If one grant in this manner my Manor of Dale which appeareth by office found to be of the value of tenne pound per Annum and Hil. 2 Jac. B. R. per Tanfield in truth in the office it is found at twenty pound per Annum this grant is good notwithstanding this misprision If one grant in this manner all my Manor of W late parcell of Pase 7 Jac. B. R. Co. 2. 32. the possession of the Abbot of S and late in the possession of K and in truth it was never in the possession of K this grant
respect of the estate of the relessor discharge or extinguish any right or title of lands it is also further requisite 1. That he that doth make it hath at the time of the release made some right or title to release As where one doth disseise me of land and I release to him all my right in the land this is a good release So if one disseise my tenant for life and I being the next in remainder or reversion in fee do release to him that did make the disseisin this is a good release So if the husband make a lease for life and then take a wife and dieth and the wife release her dower to him in reversion this is a good release And so also if after the mariage a man make a lease for life the remainder in fee and shee release all her right to him in remainder in fee or to him in reversion this is a good release and will barre her for ever And therefore if the Relessor have only a possibility of a right Lit. Sect. 446. Co. 10. 47. 42. super Lit. 265. or a right happen to come to him after the release this is not sufficient to make the release good And therefore if the father be disseised and the son before his fathers death release all his right to the disseisor and after the father dieth so that the right doth descend this is no good release to bar the Relessor of his right So if there be grandfather father and son and the father disseise the grandfather and make a feoffement and the son release in the life time of his father and after the father and grandfather die this release in this case will not bar him So if a lease Co. 10. 57. be made for life the remainder to the right heirs of I S and the lessee is disseised and the eldest son of I S living his father doth release to the disseisor this release is void So if the conusee of a statute c. doe release to the conusor all his right in the land this is void Co. 5. 70. and he may sue execution after notwithstanding Or if the Relessor Co. super Lit. 265. have only a power this is not sufficient to make the release good And therefore if a man by his will devise that his executors shall sell his land and dieth and the executors release all their right and title in the land to the heirs this release is void 2. In all cases of a release of a bare right of a freehold in lands 2. In respect of the estate of him to whom the release is made or tenements he to whom the release is made must at the time of Co. super Lit. 267. the making thereof in any case have the freehold in deed or in law in possession or some state in remainder or reversion in deed and not in right only in fee simple fee tail or for life of the lands whereof the release is made for rights of entry and actions and the like are not to be transferred to strangers but are thus to be released and such releases are good As if the disseisee release to the disseisor himself who hath the freehold in deed or to the heir of the disseisor before his entry who hath the freehold in law or to the lessee for life of the disseisor these releases are good So if a disseisor make a lease to A and his heirs during the life of B and A die and the disseisee release to his heir before his entry this is a good release So if a fine sur conusance de droit come ceo c. or sur conusance de droit only which is a Co. super Lit. 266. 275. Lit. sect 448. 1 H 6. 4. Dier 302. feoffment on record be levied or if tenant for life by agreement of him in the reversion surrender to him in the reversion or if a man doe bargain and sell his land by deed indented and inrolled or uses are raised by covenant on good considerations in all these cases the conusee him in reversion bargainee and cestuy que use have a freehold in law in them before entry And therefore a release to them of the right of the land by him that hath it is good and will bar the Relessor But otherwise it is in cases of Exchange Partition or upon Livery within the view for in these cases no release is good untill an actuall entry made for till then they have neither freehold in right nor law So if a disseisor make a gift Lit. Sect. 449 in tail or lease for life or years of the land and keep the reversion and then the disseisee or his heir release to the disseisor all his right this is a good release to bar his right for ever So if Co. super Lit. 260. Lit. Sect. 455 456. the heir of the disseisor be disseised and the first disseisee doe after release to him all his right this is a good release to bar him So if a donee in tail discontinue in fee and the donor release to the discontinuee and die this is a good release against the donor So if the donee in tail be disseised and after the donor release to the donee all his right this is good but in this case nothing of Extinguishment the reversion will passe by the release for the donee had then nothing but a right But if any rent be reserved on the estate tail the rent is gone by the release So if a lease be made to one for life rendring rent and the lessee is disseised and the lessor release to the lessee and his heirs all his right in this case albeit the rent be extinct yet nothing of the right of the reversion doth passe And yet if a woman that hath right of dower release to the guardian in Chivalry this is a good release and her right or title of dower is gone But if a disseisor make a lease for years and the disseisee release to the lessee for years this release is void because he hath no freehold But if he make a lease for life and the disseisee release to the lessee for life this is a good release So also a release to the disseisor after the lease for years made is good And Co. super Lit. 265. if lessee for years be ousted and he in the reversion disseised and the disseisor make a lease for years and the first lessee release to him this is a good release Also in some cases a release made to Lit. Sect. 448 449 450 451. Co. 8. 151. one that hath neither freehold in deed nor freehold in law is good when he hath an estate in reversion or remainder as in the case before where a release is made by the disseisee to the disseisor after he hath made an estate for life So if the demandant in a reall action release to the tenant that comes in by
by a day of the same land and before the day the feoffee enter Littl. Sect. 3â—8 into a Statute or a recognisance this land shall be subject unto execution untill the feoffor reenter for the breach of the condition If one be disseised of land and then enter into a Statute this Coo. 2. â—9 land shall not be subject to execution and yet if the Conusor do after recover the land by entry or action it shall be lyable to execution The goods and chattels whereof the Conusor is solely possessed Stat. de Merâ—â—t r. bus Co. 3. 11. 12. â—lâ—â— 52â— Coo. c. â—â—1 5. 92. Dyer 6â— and possessed in his own right and the goods and chattels of which he is joyntly possessed with another and the goods and chattels he hath in the right of his wife are liable to execution But the goods or chattels that he or his wife hath as Executor or Executrix to another or as pledged only it seems are not subject to execution And if the Conusor deliver goods to another to deliver over to I S these goods before they be delivered over are liable to execution And if hee have leases for yeares in the right of his wife and die before execution be done it seemes these leases are liable to execution Sed quaere But if the Conusor have goods in his custody of another mans or have goods he hath distrained in the nature of a distresse these are not liable to execution All the lands tenements and hereditaments which the Conusor had at the time of the Statute or Recognisance entred into or at 3. In respect of the time Coo. 3. 12. Stat. de Mer catoribuâ— any time after into whose hands by what means soever the same are betide and come at the time of execution are subject and liable to the execution But the lands the Conusor had and did put away before the time of the Statute or Recognisance entred into are not liable to execution And all the goods and chattels the Conusor hath and are found in his hands at the time when the execution is to be made by the Extendi facias are liable to the execution But the goods and chattels he had and did Bonâfide do away before the time of execution done are not liable to the execution And of all these things before subject to execution the Conusee may take all or part at his pleasure And therefore if the Conusor 4. In respect of the quantity 〈◊〉 Stâ—â—â—â— 4. 2. 25. Pâ—â— 72. Sâ—◠〈◊〉 have sold his lands to divers persons or have sold some of his lands to divers persons or to one man and keep the rest in his hands or it descend to his heire the Conusee may sue execution upon the lands in either of their hands at his election so that if the Cognisee after the Statute entred into and before execution purchase part of the land of the cognisor he may notwithstanding have execution upon the residue in the hands of the Conusor or in the hands of his heire and yet so that in some of these cases his execution may be afterwards avoided and he he compelled to sue execution againe The Cognisee upon other Recognisances shall have the same Weston 2. chap. 13. Plow 72. Coo. 3. 12. Dyer 30â— Kelw. 100. things in execution as a man shall have after a judgement in a Suite in the Kings Bench or Common-Pleas by Fieri facias or Levari facias all his goods and chattels and by Elegit the Moity of his lands and all his chattels besides the Cattell of his plow and implements of husbandry But in these cases he cannot take the body of the Conusor in execution unlesse it be upon a new Suite or in case of baile in the Kings-Bench Howsoever by the Common-law after a full and perfect execution had by extent returned and of record there shall never be any Stat. 32. H 8. chap. 5 â— Where a man shal have a Reextent or â— new execution And where not reextent yet by a speciall Act of Parliament it is provided That if after lands c. be had in execution upon a just or lawfull title wherewith all the said lands c. were liable tied or bound at such time as they were delivered or taken in execution they shall be taken or recovered away from him before he hath received his full debt and damages in this case after a Scire facias had against the Conusor his heirs executors administrators or purchasors he or his executors or administrators if he be dead shall have a new execution to levie the residue of the debt and dammages then unsatisfied Wherein these things are to be observed 1. In case where the Coo. 4. 66. 82. Plow 61 15. H. 7. 15 Coo. super Litt. 99. Kitch 116. Conusee is unlawfully and wrongfully disturbed either by the Conusor or by a stranger in the taking of the profits of the land delivered to him in execution there hee may and must bring his action and recover damages and these damages shall goe toward his satisfaction for in this case and for this disturbance hee shall not hold the land a day the longer And where he is hindred by his own neglect or act in the taking of the profits of the land as where his debt is 40l and he hath 10l a yeare delivered to him by which be may satisfie himself in four yeares and within the time hee make a conditionall surrender to the Conusor and enter for the condition broken in this case hee shall not hold the land over neither shall he have any Reextent And where the let or disturbance is such as wherein the Conusee hath remedy given him by the Common-law to hold the land over after the disturbance removed in this case he shall have no new execution nor reextent within this Statute for where the Conusee hath remedy in praesenti for part or in futuro for all or part this Statute extendeth not to it And therefore where the Conusee is hindred in the taking of the profits of land by the act of God as by fire overflowing of water or the like or the act of the party Conusor or any by or under him as when one is bound to A in a Statute of 100l and after to B in a Statute of 200l and B extendeth the land first and then A extendeth the land and taketh it away from B or when the Gardian in Chivalry doth put out the Conusee by reason of the Wardship of the Heire of the Conusor or the wife of the Conusor doth claime her dower and put out the Conusee or one disseise his lessee for life or out his lessee for years and then acknowledge a Stature and after execution is sued against him and then the land is delivered to the Conusee and after the lessee for life or yeares doth enter in all these cases because by the Common law the Conusee may hold
19. Iac. B. R. after enter into a Statute to I S and then enter into another Statute to I D and after hee doth grant his estate to I S by this the Execution of the Statute made to I S is suspended and therefore during the suspention it seemes I D albeit he be after in time may sue and have he Rent in execution If the Conusor after he hath entred into a Statute or Recognisance 8. Where the Conusor or his heir or an alience or purchaser shall have contribution upon a Statute or Recognisance or not doth convey away his land to divers persons and then the Conusee Plow 72. Coo. 3. 12 6 13. sue Execution of the Statute upon the lands of one or some of them and not of all in this case he or they whose lands is or are taken in Execution may by an Audita Querela or Scire Facias have contribution from the rest wherein these differences must bee observed That one Purchasor shall have Contribution from another And therefore if the Conusor sell some lands to I S and other lands to I D and the Conusee sue Execution only of the lands of I S I S shall have contribution against I D. And the Feoffee of the Purchasor the Feoffee of the Heir of the Conusor the Feoffee of the Feoffee and another Feoffee shall have contribution of the Heir of the Conusor But the Conusor himselfe shall not have contribution from a Purchasor and therefore if hee sell part of his lands and keep part in his hands and the Conusee sue Execution only of the lands in the hands of the Conusor or his Hâ—ires in this case neither he nor his Heirs shall have any contribution from the Purchasors and one Heire shall have contribution from another And therefore if one be seised of two Acres the one in Burâ—ow English the other of other Land and he enter into a Statute and die and he hath but two daughâ—â—s and the Execution is sued upon the land of one them she shall have contribution from the other So where some land doth discend to the Hâ—ire of the part of the Father and some to the Heire of the part of the Mother If one be seised of lands in Fee in the County of A and B and enter into a Statute or Recognisance and the Conusor die and then the Conusee die also and his Executor doth â—uâ— Execution of the lands in B only and hath Execution and after the Heir doth sell these lands in this case the Vendee shall have no contribution So also it seems the Law is if the Hâ—iâ—e sell the land to divers and one of the Purchasors appear to the Seire Facias and the Iudgement is given against him and he afterwards sell the land his Vendee shall have no contribution And in all these cases where it is said the one Purchasor shall have contribut on it is not intended that the rest shall give or allow him any thing by way of contribution but that the party whose lands are extended may by Audita Querela or Seire Facias as the case requireth defeat the Execution and thereby shall be restored to all the meane profits and force the Conusee to sue his Execution upon all the land that the land of every one of the Terre-tenants may be equally extended And so wee fall from an Obligation by matter of Record to an Obligation by matter of Fait which is no Record CAP. XXI Of an Obligation AN Obligation is a Deed in writing whereby one man doth bind 1. Obligation Quid. Obligor Obligee Finches ley 49. himselfe to another to pay a summe of money or doe some other thing And hee that makes this Deed is called the Obligor and he to whom it is made is called the Obligee And it is sometimes Simple or Single which is when it is to pay 2. Quotuplex Coo. super Litt. 172. a summe of money or doe some other thing and when it is without any Defesance or Condition in or annexed to it which also is sometimes with a penalty called a penall Bill and sometimes without a penalty And this is that which is most properly called an Obligation and sometimes also it is called a single Bill or single Bond. And sometimes it is double or Conditionall which is when it is attended upon and accompanied with a Condition And then it is said to be a Bond containing a penalty with condition to pay money or doe or suffer some act or thing c. And this Condition is some times called a Defeasance and then especially when it is as sometimes it is in another Deed or Instrument for most commonly it is inserted into the same Deed wherein the Obligation being the other part of it is contained And then also it is either subscribed under the Obligation or included within the body of it or indorsed upon the back of it And quacunque vià if the condition be performed the penalty is saved if not the penalty is forfeit a a Broo. Obligat 67. â—0 An Obligation may be made upon parchment or paper and in loose 3. What shall be said a good Obligation in his originall creation or not parchment or paper b Trin. 49. Eliz. B. R. or in a peece of paper or parchment sowed in a book and either way it is good But if it be made on a Tally peece of wood or any other thing but paper or parchment albeit it be sealed and delivered yet it is voyd c Coo. super Lit. 229. Fitz Obligat 9. And it may be made in the first or in the third person notwithstanding the Statute of 38. Ed. 3. c. 4. which First for the manner and form of it and what words are sufficient to make an Obligation doth intend only Obligations made beyond the Sea And therefore an Obligation so made as Memorandum quod A de B debet C de D 10l In ou us c. is good Albeit the best manner and form of an Obligation is that which is Dyer 21. 22. 23. Coo. 9. 53. 37 H. 6. 9. 22 Ed. 4. 22. â—elw 34. a â— Ed. 4. 39. â—3 H. 7. 6. most usuall as Noveritis me A de B teneri firmiter obligari C de D in 20l. legalis c. Solvend eidem C autsuo cert Atturnat executoribus aut administratoribus suis Ad quam quidem solutionem bene fideliter faciendum obligo me haeredes executores adminstratores meoâ— firmiter perprasentes c. yet any words in a writing sealed and deliverd whereby a man doth prove and declare himselfe to have another mans money or to be indebted to him will make a good Obligation And therefore if a man by Deed say but this Memorandum that I A of B doe owe to C of D 20l. to be paid at Easter next Or memorandum that I A of B have had of C of D 20l. of which there is 10l
be that I S shall serve me in all my honest and Perk. Sect. 772. 6 â—d 4. 2. To serve lawfull commands or that I S shall be a good and honest servant to me one yeare in the first case if I command him nothing the condition is not broken albeit he never tender his service but in the last case it seemes he is to tender his service to me or otherwise the condition will be broken But if I refuse his service when it is tendred or hee die within the time the obligation is discharged And yet if hee depaâ—t away within the time the condition is broken If the condition be that A shall marry B by a day and before 4 〈◊〉 7. 〈◊〉 Perk. 7â—â— To marry a woman the day the obligor himselfe doth marry her in this case the condition is broken But if the obligee marry her before the day the obligation is discharged If the condition be to performe the covenantâ— and paiments of a Deed and the deed doth containe a feoffment and this is on condition Briscoes case â—â—in 〈◊〉 Ia. c B. 〈◊〉 To performe covenants that if the feoffor pay such a summe of money he shall re-enter and he doth not pay it in this case this non-paiment is no breach of the condition But if A let land by Indenture to B for yeares rendring rent and B doth bind himselfe in an obligation Adâ—udged Griffin Scots case 5. Iac. B. R with condition to performe all the covenants contained in the Indenture and the rent is unpaid this is a breach of the condition and cause of forfeiture of the obligation If the condition be for the saâ—e keeping of prisoners and one Curia Trin 37. Eliz. To keep Prisoneâ—â— doth escape that is in execution and in prison under colour of an execution or the like but in truth and in judgement of law is no prisoner this escape is no breach of the condition See more in â—ondition at Numb 10. If the condition of an obligation consist of two parts in the disjunctive or be to do one of two things before or at a day certain 11. By whaâ— meanes and when an Obligation good in his original creation doth or may become void bee discharged or gone by matter ex post facto Or not â—oo super Lâ—â—t 207. and both the things are possible at the time of the making of the obligation and before the time of performance one of the things is become impossible to be done by the act of God or by the act of the obligee himself in this case the obligation is discharged for ever And therefore if the condition be That if the obligor shall sell away his wives land if then he shall either in his Coo. 5. 12. 25 H. 7. 2. life time purchase to his wife and her heires and assignes land of as good right and value as the money by him received or had by or upon the said sale shall amount unto or else do and shall leave unto her the said I as Executrix by legacy or otherwise as much money as shall bee by him received upon such sale That then c. and the obligor doth sell his wives land and then his wife doth die before him so that he cannot leave her the money in this case the obligation is discharged and the husband is not bound to purchase land to her and her heires So if the condition be that if I S do not prove the suggestion of a Bill depending in the Court of requests before the utas of Hillary that then he shall pay 20l Dyer 262. 15 H 7. 4. 4 H. 7. 4. Agree 9. Iac. 〈◊〉 Bathurst case c. and I S die before the utas hereby the obligation is discharged for ever and he is not bound to pay the 20l. So if the condition be that if the obligor appeare in the Kings Bench in Eastern Terme or pay 20l. to the obligee at Michaelmas and the obligor die before Easter Terme hereby the obligation is discharged but if he do not appeare in Easter Terme and out-live the Term and die after then it seems the 20l. must be paid at Michaelmas or the obligation is forfeit So if the condition be that the obligor shall marry A before Easter or pay 20l. to the obligee at Michaelmas and A die or become madd before Easter or the obligee marry A himselfe and the marriage doth continue between them untill Easter be past in all these cases the obligation is discharged for ever But when the thing is become impossible by the act or laches of the obligor the law is otherwise And therefore if the condition be that A shall marry with B before Easter or that the obligor shall pay unto the obligee 20l. at Michaelmas and the obligor himselfe marry with B and the marriage doth continue untill after Easter hereby the obligation is not discharged So if the condition be to deliver up an obligation before Easter or give a release at Michaelmas and the obligor doth loose the oblgation or the obligation is burnt hereby the obligation is not discharged for if he doth not make the release at Michaelmas hee doth forfeit the obligation If the condition of an obligation consist of one part only or be 8 Ed. 4. 22. Coo. 5. 22. Perk Sect. 7â—9 767. â—4 H. 74. 22 Ed. 〈◊〉 to do one thing at a time certain and that thing at the time of the obligation maâ—e is possible to be done but afterwards and before the â—ime when it is to be perâ—ormed it doth become impossible by the act of God or the act of the obligee in this case also the obligation is gone and discharged for ever And therefore if the condition be to appear in person such a day in such a Court and before the day the obligor die or at the day the water doth arise so high that he cannot travaile to the place without perill of life in these cases the obligation is discharged So if the condition be that A shall marry B before Easter and before the time A or B die or become madd or the obligee marry B and the marriage doth continue untill after the day in all these cases the obligation is discharged But if the thing become impossible by the act of the obligor contra And therefore if the condition be that the obligor shall appeare such a day and before and at the day hee is imprisoned through some default of his own so that he cannot appeare this will not excuse him * So held in the Exchequer 3. Cur. no more then in case where hee is so sick that he cannot appeare without perill of his life So if the condition be that B shall marry C before Easter and the obligor himselfe marry her and the marriage doth continue untill after the time in this case the obligation is forfeit * 〈◊〉 Co. B Hâ—â—
of a Subject by Socage and he devise all the Capite land to a stranger that this is a good Devise for the whole and that the King shall be satisfied by the Socage land And if it be of the value of the third part albeit it be but of an estate Taile whereof the Ancestor was seised or it be new purchased land yet it is sufficient And therefore if some lands be given to a man and the heirs of his body of the value of 10 l. per annum and he be seised of other lands in Fee-simple to the value of 20 l. per annum and all or part of these are held in Capite by Knights Service in this case he may devise the lands in Fee-simple and leave the entailed land to discend for a third part And if a man be seised of such land and convey it to the uses within the Statute or any of them and after purchase new land and leave that to discend this is sufficient 11. The third part that is left to discend to satisfie the King or other Coo. 3. 34. Lord must discend immediately and he must not stay for it And therefore if a man be seised of three Acres of land held by Knights Service in Capite and make a Lease of one Acre for life and after devise the other two Acres this Devise is not good for the whole two Acres but for two parts in three thereof only and albeit the Tenant for life die afterwards yet this will not help the matter But if the Devisor leave a full third part immediately to discend in Fee-simple or in Fee-taile he may devise the other two parts at his pleasure And if he doe not leave a third part to the full it must be made up and supplyed out of the other two parts which in case of the King is done by Commission out of the Court of Wards and in case of a Subject by Commission out of the Chancery 12. As the Coo. super Litt. 111. 9. â—33 3. 32. 30. third part left to discend must bee of as good value as either of the other two parts is at the time of the death of the Testator or otherwise the Devise of all the residue will not be good so must it bee taken out of the lands of the Testator indifferently And therefore if a man be seised in Fee of land held in Chiefe by Knights Service and make a Feoffment of the one halfe of it to the use of himselfe for life and after to the use of one he doth intend to marry and after to the use of another in remainder or to any other such like uses within the Statute and after he doth marry the same woman and after he deviseth the other moity to his wife children or any other in this case albeit the wives estate have precedency yet the King shall have his third part out of both the moities equally So if one be seised of Gavelkind land held in Capite and his sonne being dead devise part of it to one of his grand-children and part of it to another and part to a third Taile in this case the Kings third part shall come out of all the three parts equally and accordingly the Devise will be void for so much to every one of them So if one hold three severall Mannors of three severall Lords he cannot devise two of these Mannors leaving a three to discend but he may devise two parts of every of the third Mannors and a third part of each Mannor must discend to each Lord for there must be an equallity in these things For further illustration of which things the examples following are to be heeded W B being seised of the Mannor of Thoby in Capite Coo. 3. â—ut ler Bakeâ—s câ—se and of lands in Fobbing held in Socage in Fee and he and his wife being seised of the Mannor of Hinton held in Capite to them and the heiâ—es of their two bodies begotten by an estate made to them during the Coverture for the joynture of the wise the reversion to W in Fee and Thoby doth amount to the value of two parts and Hinton and Fobbing to a third part and W B by his Will in writing doth devise Thoby to his wife for life upon condition that she shall not take her former Joynture with divers remainders over and die and shee refused her former Jointure in Hinton in this case it was adjudged that the Devise was not good for the whole Mannor of Thoby and that the Mannor of Hinton was not a sufficient third part to discend L L being seised of the Mannor of Affaland Coo. 10. 78. I â—onard Leoveis case Coo. 11. 24. Heaâ—ton Rillaton Pâ—ngelley Willesworthy and Trivesquite the last only held in Capite in Fee and having issue Thomas his eldest sonne William Humfry and Richard younger sonnes which Richard had issue Leonard makes a Feoffment of these Mannors to divers uses viz. of the Mannors of R P W and A to the use of the Feoffor for life and after to the use of such person as he should appoint by his last Will and after to the use of W his second sonne in Taile and after to his other sonnes in Taile and after to the use of the Feoffor and his wâ—fe in Taile and after to the use of the Feoffor and his heirs for for ever And of the Mannor of H to such like uses and of the Mannor of T also to such like uses and the same uses were with power of Revocation And after the Feoffor purchased eight Acres of other land held in Socage and after did revoke the uses of the Mannors of R P W and A and after devised some of the said Mannors excepting some peeces and the said eight Acres of land to his eldest sonne and the heirs males of his body for 500 yeares on certain conditions and if he die without issue that it shall goe to William c. and afterwards he dyed seised of the said eight Acres of land and the lands devised by the Will at the time of the death of the â—estator were of the yearly value of 24 l. 14 s. 10 d. per annum non ultra and the lands whereof the Feoffment was made and not revoked were at the time of the death of the Testator of the value of 55 l. 6 s. 8 d. in this caâ—e it was adjudged that the Devise of the eight Acres newly purchased was void at least for a third part and restrained by the reversion in Fee expectant upon the estate Taile made to the younger sonne of the Mannor held in Capite And it was resolved That if a man be seised of three Acres of equall yearly value one of them held of the King by Knights Service in Capite and have issue two sonnes and give the Acre so held and another of the Acres to his younger sonne whereby hee hath so executed his power by the Statute that hee
this doth not alter the custome but by this all the sonnes shall take If a man devise his land to his wife for life the remainder to â—â—tz 〈◊〉 2. his sonne and the heirs males of his body engendred and for default of such issue the remainder to his next heir male and the heires males of the body of that heire male and after his sonne die without issue living his wife and the Devisor hath issue a daughter who hath issue a sonne in this case and by this Devise it seemes the daughter and not her sonne shall have the land and that in Fee-simple If a man devise his land to his wife for life and after to his own Trin. 9. â—ac Aâ—â—â—dged Curteâ—s case right heirs males and he hath issue three daughters and after his death one of them hath a sonne in this case and by this Devise the next collaterall heire male of the Devisor and not the sonne of the daughter shall have the land If a man have issue two sonnes and a daughter and devise his Dâ—er 122. land to his wife for tenne yeares the remainder to his younger sonne and his heirs and if either of the said two sonnes die without issue of their bodies the remainder to the daughter and her heirs and the younger sonne die in the life time of the father and after the father die in this case and by this Devise the daughter hath a good remainder but it seemes the elder sonne hath first an estate Taile by the intent of the Devisor If a man devise some land to A his eldest daughter and her Dâ—eâ— 330. heires and if she die without issue to T his youngest daughter and her heirs and if she die within 16 years that A shall have her part to her and her heirs and if A marry such a one that T shall have her part to her and her heirs and if T die having no issue that all her part shall goe to M and E his Neâ—ces and if A die without issue that T shall have her part to her and her heires and T after the 16 years doth die without issue in this case the Neeces M and E and not A shall have her part that is dead If land be devised to A for life the remainder to a Monke for Perk. Sect. 5â—6 â—67 life the remainder to I S in Fee by this Devise he in the remainder in Fee shall take presently after the first estate for life ended and if the Devise be to a Monke for life the remainder to I S in Fee by this I S shall take presently If a man devise his land to a womâ—n and her brother and the Dyer 326. heirs of either of their two bodies and for default of issue of the said woman and her brother the remainder to the right heires of the Devisor and after the death oâ— the Devisor the brother dyeth without issue and the sister hath issue and dyeth in this case and by this Devise her issue shall have a moity and no more of the land If one devise two parts of his Land to his four younger sonnes Dyer 304. in Taile and that if the Infant in the wombe of his wife be a sonne that he shall have the fifth part as co-heire with the four and if his five sonnes die without issue that the two parts shall revert and then the Devisor dyeth and after a sonne is born and after he and three of the other sonnes die in this case and by this Devise the Infant shall not take any thing because he is uncapable and the two parts shall not revert to the heire untill the five sons be dead without issue If one devise the Mannor of Dale to the eldest sonne of I S in Adiudged Co. B. M. 36. 37 Eliz. Brownes case Fee and the Mannor of Sale to I D for life the remainder to such of the children of I S as shall be then living and shall have the Mannor of Dale and the eldest sonne of I S after the Testators death doth sell the Mannor of Dale and after I D dyeth in this case and by this Devise none of the children of I S shall have the Mannor of Dale but it shall goe to the heires of the Devisor If one devise his land to the children of I S by this devise the children that I S hath at the time of the Devise or at the most the children that I S hath at the time of the death of the Testator and not any of them that shall bee borne after his death shall take If one have two daughters by divers women and devise a moity of Dyer 34â— his land to his wife for seven yeares and that the elder daughter shall enter into the other moity at her day of marriage and if his wife be with child of a daughter that then she shall have an equall portion with the other sister and the Devisor dyeth and the wife doth enter and hath not a daughter and then the elder daughter doth take a husband and enters upon a moity the younger daughter dies without issue and the seven years expire in this case and by this devise the collaterall heir of the younger daughter shall have the moity of the whole and not the moity of a moity only and that by discent If a man have issue B C and D sonnes and he devise his land Curia B. R. Mich. 20. Iaâ— Next of blood to D his sonne the remainder proximo de sanguine or to the next of blood of the Testator in this case and by this Devise B shall take after the death of D as the next of blood In like manner if the Testator have four daughters and he devise his land to the youngest in Taile the remainder to the next of blood by this Devise the eldest daughter and not all the rest shall have the land And if the Testator have issue B his elder sonne and C his younger son and B have issue D his sonne and B is attainted and dyeth and the Testator deviseth his land to I S for life the remainder to the next of blood of the Testator by this Devise D and not C shall have the land If a man have issue B and C sonnes and D a daughter and devise Broo. Dâ—scent Piâ— 19. 8. Aâ—â— Pl. 4. his land to C for life and after that it shall remaine to the next of blood to his children to the next heirs of the blood of his children and C dyeth and B dyeth without issue and D hath issue a daughter in this case and by this Devise the heires of A shall not take but the next of blood to the children of A which is the daughter of D and his children themselves are excluded and if the sonnes have any issues living they shall take with her by this Devise If the Testator have issue by A his first wife three daughters â—â—â—â—dged Mâ—
devises if the husband and wife have no children at the time of the devise is created an estate taile and if they have any children at the time of the devise then hereby is created an estate for all their lives onely in joyntenancie And if land be devised to A for life the remainder to B and the heires of his body the remainder to I S and his wife and after to their children by this devise I S and his wife have estates for their lives onely and their children after them estates for their lives joyntly And albeit they have no children at the time yet every child they shall have after may take by way of remainder And so also it seems is the law upon such a limitation by Deed Deed. If lands be devised to I S and his heires males or his heires females without saying of his body by this devise I S hath Deed Litt. Sect. 31. 9. H. 6. 25. 27. H. 8. 27. an estate taile But if such a limitation be by deed it is a Fee-simple If one have two sonnes and devise White Acre to his eldest sonne and his heires and Black acre to his youngest sonne and his heires Hill 22. Iac. B. R. Daniels case and if either of them dye without issue then that the other shall be his heire by this devise either of them hath an estate taile and no Fee-simple If one have land in Kent in W S and T and have one male child Adiudge M. 9. Iac. Wallops â—ase and a daughter and his brother hath three children B C and D and he devise his land thus Item I give my land in Kent to my male childe and his heires and if he dye without heires of his body that that the land in W shall go to B and his heires Item I will my land in S to C and his heires and my land in T to D and his heires in this case and by this devise the male child of the Devisor hath an estate taile in all the lands and after his death without heires it shall remaine according to the Will So that if one devise his land to his eldest sonne and his heires and if he dye without heires of his body that it shall remain to his youngest sonne and his heires by this devise the eldest sonne hath an estate taile and the youngest sonne the Fee-simple If one devise his land to his sonne W and if he marry and have any issue male begotten of the body of his wife then that issue to Coo. 9. 127 have it and if he have no issue male then to others in remainder by this devise it seems W hath an estate taile to him and the issues male begotten on the body of his wife If one devise White Acre to I S and the heirs of his body and then after saith thus and I will that I D shall have Black Acre in the same Perk. Sect. 561. 20. H. 6. 36. manner that I S hath White Acre by this devise I D hath an estate tail in Black Acre as I S hath in White Acre Et sic de similibus * Tr. 30. Eli. And if one devise White Acre to I S and then say Item Black Acre to I S and the heires of his body by this devise he hath an estate taile in both Acres If one devise his land to his wife for yeares the remainder to his younger sonne and his heires and if either of his two sonnes dye Dyer 122. without issue c. that it shall remaine to his daughter and her heires and the younger sonne dye in the life time of the Father and after the Father dyeth it seemeth by this devise the elder son shall have the land in taile If one devise his land to his wife for life and after to his sonne Adiudge Tri. 7. Iac. Co. B. Robinsons case and if his sonne dye without issue having no sonne or having no male then that it shall goe to another by this devise the sonne hath an Estate taile to him and the heires males of his body If lands be given to a man and woman unmarried and the heires of their two bodies or to the husband of A and wife of B and the Coo. super Litt. 20. 26. Plow 35. heires of their two bodies by these Devises are made estates in Taile If a man devise White acre to his three brothers and Black acre to C his brother so as he pay 10l to I S and otherwise that it shall remain Dyer 333. to the house provided that the same lands be not sold but go unto the next of name and blood that are males if it may be it seemes that by this devise C hath an estate tail in black acre and that if he die without issue it shall go to the three other brothers and their heires males in taile one after another and that white acre also is so entailed in every of their parts For the words shall remaine to the house shall be construed to the most worthy of the Family and the words that are males shall be construed in the future tense If land be devised to I S and the heires of his body and that if he die that it shall remain to I D by this Devise I S hath an estate Adiudg 14. Eliz. Coo. B. Trin. 9. Iac. B. R. Taile and the latter words do not qualify the former but I D must attend his death without heires of his body before he shall have the land If land be devised to I S and the heirs males of his body and if it Dyer 171. happen that he dye without heire of his body that it shall go to H and his heires by this Devise I S hath an estate to him and the heires males of his body and the subsequent words do not alter nor enlarge the estate If land be devised to I S and E his wife and to the heires of Coo. super Litt. 26. the body of the Survivor of them by this Devise the Survivor shall have a generall estate Taile If land be devised to I S and the heires he shall have by A his wife by this Devise I S hath a Fee Taile and not a Fee simple as Coo. super Litt. 26. Deed. he hath in case of such a limitation by deed If land be devised to I S and to the heires of the body of such a woman by this Devise I S hath an estate Taile and begotten Coo. super Litt. 26. shall be intended begotten by him If one devise land to his sonne and his heires and that if his sonne die within the age of 21 yeares or without issue that the land shall Adiudg M. 37. 38 Eliz. Sale versus Geâ—rard remain over and the son dieth within age having issue in this case and by this Devise the sonne hath an estate Taile and or in this place shall be taken for and If land
bee devised to a man and his wife and to one heire of their body and the heire of the body of that heire by this Devise Coo. super Litt. 22. Deed. an estate Taile is made in a Will as well as in a Deed. If a man devise his land thus I give White acre to A my sonne M. 18. Iac. B R. Gilberts case and his heires Black acre to B my sonne and his heires and Green acre to C my sonne and his heires provided that if all my said sons die without issue of their bodies that then all my said lands shall goe to M my wife and her heires by this Devise they have all of them estates in Taile of their land and as it seems crosse remainders to either of them of the land of each other If one devise his land thus I give my land in Dale to I S and if Coâ— 9. 128. he die without issue male of his body then that it shall remain over to I D by this Devise I S hath an estate Taile If a man hath issue three sonnes and devise his land thus viz. one part to two of his sonnes in Taile and another part to his third Litt. Broo. Sect. 4â—â— Broo. Devise 38. Done 44. sonne in Taile and that neither of them shall sell his part but that either of them shall be heire to other in this case and by this Devise either of them hath an estate Taile and if one of them dye without issue his part shall not revert to the eldest but shall remain to the other sonne for it is an implied remainder If there be husband and wife and they have issue a sonne and a Coo. super Litt. 26. daughter and the husband die and land is devised to the wife and the heires of her late husband on her body begotten in this case and by this Devise the wife hath only an estate for life the sonne an estate in Taile and so also the daughter in case he die without issue If one devise to I S that if he and his heires of his body be not For life Coo. supâ—r Litt. 147. 8. 85. paid 20l. rent yearely he and they shall distraine c. by this Devise I S hath an estate taile of this rent But if the Devise be that if I S be not paid 20l. yearly he shall distrain c. by this Devise I S hath only an estate for life So if one devise a rent of 10 l. out of his land to be paid quarterly and say not how long the rent shall continue this is but an estate for life If one devise his land thus I give my land in Dale to I S for his life or to I S without any more words or to I S and his Fitz. Devise 16. Coo. 6. 16. Perk. Sect. 577. heire in the singular number or I S and his children and I S hath children at the time of the Devise or to I S and his successors I S being a naturall person by all these and such like Devises I S hath only an estate for life in the thing devised * Mich. 13. Ia. B. R. Dyer sect 307. But if the Testator have only a Terme of yeares in the land whereof the Devise is made and devise this land to I S and doth not say for what time it seemes that by this Devise the whole Terme is devised unlesse the intent doth appeare to be otherwise And if one devise land whereof a man is seised in Fee to I S paying 10l to I D by this Devise albeit there be no estate expressed yet I S hath the Fee-simple of the land in respect of the paiment of See before Litt. Broo. Sect. 406. 125. the money But if the intent of the Testator appeare to be that I S shall have the land but for his life contra for there the consideraration will not alter the estate expressed upon the gift If land be devised thus I give my land in Dale to I S and his Deed assignes without more words by this Devise is held to be given Coo. super Litt. 9. 4. 29. no more but an estate for life by construction upon a Will as it is upon a Deed. And yet in the New Termes of the Law tit Devise the contraray is affirmed Ideo quâ—re If one devise thus I will that I S shall have and occupy my land Pasche 9. Iac Newmans case in Dale and say not how long by this Devise I S shall have the land for his life * Dyer 342. But if I devise that I S shall enter into my land and say no more by this Devise I S hath no estate at all but power to enter into the land only If a man have a sonne and a daughter and dieth and lands are Coo. super Litt. 2â— devised to the daughter and the heires females of the body of the Father by this Devise the daughter hath only an estate for her life for there is no such person for she is not heire If one devise his land thus I give my land in Dale to I S for Coo. 1. 6â— his life and after to the next right heire of I S in the singular number and to his right heires for ever by this devise I S hath only an estate for life So if one devise land to I S for life and after to the next heire male of I S and to the heires males of the body of such next heire male by this devise I S hath an estate for life only but if it be thus I give my land in Dale to I S for his life and after to the heires or to the right heires of I S by these devises I S hath the Fee-simple of the land And if it be to I S for life and after to the heires males of I S by this I S hath an estate Taile If one devise land to I S and E his wife and after their decease or the remainder to their children by this devise whether they Coo. 6. 16â— have or have not children at the time I S and E his wife have estates for their lives only If one devise a Moity of his land to his wife for life and the other Curiaâ— Ia. Co. B. Moity to his second sonne and after by another clause doth devise it all to his sonne after the death of his wife by this Devise the sonne hath only an estate for life after the wives death and no more If one devise his land to I S in Fee after the death of I B being Broo. Devise 48. 52. Litt. Broo. 107. 13 H. 7. 13. New termes of the Law tit Devise Plow 158. 414. 521. By Implication his sonne and heire apparant by this Devise I B hath an estate for ife by implication and untill the Devise take effect the law gives it to him by discent And so also it seemes the law is where
one doth devise his land to I S after the death of his wife that by this Devise the wife hath an estate for life by implication And therefore if a man devise thus I give my goods to my wife and that after her decease my sâ—nne and heire shall have the house where the goods are it is held by this Devise that the wife hath an estate for life in the house by implication for a man is bound to provide for his own wife But if a man devise his land to I S after the death of I W a stranger to the Devisor it seemes that by this Devise I W hath no estate at all by implication and that this doth but set forth when the estate of I S shall begin and that the intent of the Testator is that his heire shall have it untill that time If one devise land thus I give my land in Dale to I S to the intent Coo. 6. 16. 3. 20. Bâ—oo Estates 78. that with the profits thereof he shall bring up a child or to the intent that with the profits thereof he shall pay to A 10l or to the intent that he shall out of the profits thereof pay yearly 10l by these Devises I S hath only an estate for life albeit the payments to be made be greater then the rent of the land And therefore it is not like to the case before where a summe of money is to be paid presently If one devise his land thus I give my land to Alice my Cosin in Dyer 357. Fee-simple after her decease to W her sonne who is her heir apparant by this Devise she hath an estate for life first the remainder to her sonne for his life the remainder to the heirs of A in Fee-simple And so also is the Law when the Devise is to any other after that manner If my father be tenant for life of land the remainder to me in Fee Dver 371. and I devise this land to my wife rendring for her naturall life 40â— to the right heir of my father by this Devise my wife hath an estate for life after the death of my father If one devise his land unto his Executors untill his sonne shall Fâ—r 〈◊〉 come unto 21 yeares of age the profits to be imployed towards the â—oo 3. 20. performance of his Will and when he shall come to that age then that his sonne and his heires shall have it by this Devise the Executors shall have it untill he be 21 yeares of age and if he die before that time untill the time he should have been 21 yeares of age if he had lived so long and shall in this case shall be taken for should If one devise his land to his Executors for the paiment of his debts and untill his debts be paid by this Devise the Executors have Coo. super â—â—tt 42. but a chattell and an incertaine interest and they and their Executors shall hold it untill the debts â—e paid and no longer If one devise his land to I S and the heires males of his body Coo. 10. in Leonard â—oveis case 87. 46. for the term of fifty yeares it seemes that by this Devise I S hath but a Lease for so many yeares if the heires males of his body shall so long continue and that for want of issue male the terme of yeares shall end And in this case the Executor or Administrator 〈◊〉 not the heirs males of I S shall have it after his death If one devise his land thus I give to I S and I D and their Adiudged Loweâ— versus Câ—xe Mich. 37. 38. â—liz Co. B. Dyer 25. Lit. Bâ—o Seâ—â— 133. Lâ—tt 2â—3 Perk. Sect. 170. Dyer 350. heirs my land in Dale equally or my land in Dale to be equally Fourthly in respect of other 〈◊〉 divided by these Devises I S and I D shall have and hold the land not as â—ointenants but as Tenants in common so that the heire and not the servivor shall have his part that first dyeth And yet in case of such a limitation by Deed it is otherwise And if one devise his land to I S and I D and their heires without more words it seemes that by this Devise they shall take and hold as Joint-tenants * Dyer 326. And yet if one devise land to I S and I D and the heires of either of their bodies lawfully engâ—â—dred it seemes that by this Devise I S and I D shall take and hold aâ— Tenants in common and not as Ioint-tenants * Paâ—che 9. Ia. New mans case And if one devise his land to I S and I D thus I will that I S and I D shall have my lands in Dale and occupy them indifferently to them and their heires If one be possessed of a terme of yeares of land and devise the Hill â—3 Ia. B. R. Adiudged Blandfords case Devise of gâ—ods and chattels same to his wife during all the years and if she die within the years then to A and B his two sonnes if they have no issue male but if they or either of them have issue male then that it shall goe to First in respect of the person that shall take by the Dâ—vise the use of those issues male and she die and the two sonnes die without issue born one of their wives being privily with child of a sonne which after his death is borne in this case and by this devise this issue male shall have it assoone as he is borne If one be possessed of a terme of yeares and he dâ—vise it to another Coo. 10. 4â— Lampets case Perk Sect. 558. 559. and his heires or his heirs males by this Devise the Executors Executors or Administrators not the heirs of the Legatee shall have it And Hâ—ire therefore if Lessee for years of land devise all his interest therein to his wife if she live so long and after her death if any part of the term be to come devise the same to I S his sonne and the heirs of his body in this case and by this Devise the Executors and Administrators of I S not his heires shall have it at least so long as he hath any heires of his body And yet if one possessed of a term of years devise it to I S and after his death that the heir of I S shall have it in this case I S shall have so many years of the term as he shall live and the heir of I S and the Executor of that heir shall have the residue of the term If one give 10 l. to the children of I S and at the time of the Swinb 316. Devise I S hath foure children and after before the death of the Testator he happen to have two more in this case and by this Devise the two children he hath afterwards shall have no part of the 10 l. but those foure he had before shall have
remaine to I D and his hâ—iâ—â—s in this case if the Devisee doe not pay the money I D shall not take advantage of it nor have the land according to the Devise but the heir of the Devisor shall enter and have the land and put out the Devisee And if one devise his land to I S for life on condition to pay 20 l. to I D and after to I D in Taile in this caâ— if I S doe not pay the 20l. it seemes the heire shall enter and hold the land during the life of I S and that I D shall not have it till then And in cases of Devises of goods or chattels other words will Swinb 136 make a Devise conditionall in divers cases as when as I give to to I S 10 l. when he shall be married and whiles as I give to I S â—0 〈◊〉 whiles he shall abide with my children which is as much as if he abide with my children and which as I give him 〈◊〉 which shall marry my daughter and the ablative Case absolute as my sonne being dead I give to I S 20 l. And of all these conditions regularly the Executor and no other shall take advantage But if the condition bee such for the matter and substance of it as is impossible unlawfull or the like there perhaps these words may not make a condition nor the thing devised conditionall but rather make the whole sentence void Whereof read Swinb part 4. Sect. 5. at large If one devise his land to his daughter and heir apparant in Fee-simple 11. Where a Devise void or voidable in his exception may become good by matter ex post facto or not â—itz tit Asâ—â—se 27. this Devise is void yet if in this case the wife of the Devisor be privily with child of a sonne which is born after his death now is the Devise become good for now shee is not heir to her father If a woman that hath a husband devise her land by Will during Plow 344. the Coverture and after her husbands death when she is sole she do publish and approve it in this case and by this meanes the Devise is become good but if she make and publish it during the Coverture and after her husband die and she become sole this accident without any more will not make the devise good the same Law is of the Devise of good and chattels If an Infant within age devise his lands or goods and publish his Plow 344. Will and after he comes to bee of full age he doth publish and approve it againe in this case and by this meanes the Devise is become good but if the Infant live to be of full age and doe not publish and approve it contrâ— If a Legacy of goods or chattels be given on condition to a man Swinb 340. uncapable and before the condition is extant he doth become capable in this case and by this meanes the Devise is become good See before at Numb 6. more of this matter A Devise that hath a good beginning is sometimes avoided and 12. Where 〈◊〉 Devise good in his inception shall or may become void by matter ex post facto or not Liâ—â— 16â— Coo super 〈◊〉 112. Plow 540. 541. Coo. 8. 〈◊〉 33. overthrown by subsequent matter in the same Will and sometimes by subsequent matter in another Will and sometimes by some other accident ex post facto For if a man make a subsequent or latter Devise either in the same or in another Will so contrary and repugnant to the former that both cannot stand together this doth overthrow tâ—e former And therefore if a man doe give White Acre to I S in Fee or his white horse to I S and after by the same or another Will doth give White Acre to I D in Fee or his white By a subsequent repugnant Will horse to I D these latter Devises doâ— overthrow the former cum duo inâ—â—r se pugnantia reperiuntur in testamento ultimum ratum est And as a latter Will doth overthrow the foâ—mer so the latter part of a Will doth overthrow the former part of the same Will But if the Devisees be such as they may stand both together and are not directly repugnant nor doâ— fight one against another there the latter shall not overthrow the former but both shall be received And therefore if one devise his land to I S and his heires and See before after by the same Will devise a Rent out of the same land to I D and his heires or è contra So if one devise White acre to A for life and afterwards give the same acre to B in Fee in this case the one may have it for his life and the other may have the Fee-simple afterwards If one devise his land to his sonne and heire in Fee-simple or Plow 〈◊〉 Perk. Sect. 569. Litt. Bâ—â—â— 453. Kitchin 127. Dyer 317. 350. devise it to a stranger for yeares the remainder to his sonne and heire By a waiving of the estate devised in Fee-simple and the heire after the death of the Devisor doth as he may waive the estate given him by the Devise and claime the the land by discent in this case and by this meanes the Devise is become void But if the Devise be to the sonne and heire in Taile the remainder to a stranger there he cannot waive the Devise and take it in any other manner And so if a man have only two daughters who are his heire and he devise his land to them or have Gavelkind land and dâ—vise it to all his sonnes they may not waive these Devises and take by discent for by Devise they shall take as â—ointenants who otherwise by discent shall take as Parciners If one devise his land to another in Fee simple Fee taile for life Litt. 〈◊〉 Sect. 482. Perk. Sect. 569. Dyeâ— 6â— Coo. 9 140. Ploâ— 543. â—4â— â—r yeares and the Devisee after the death of the Testator doth refuse and waive the estate devised to him in this case and by this meanes the Devise is become void And it seemes a verball waiver is sufficient in this case So if one give goods or chattels to another and the Devisee refuse it by this meanes the Devise is become void and any waiver or refusall will suffice in this case for a man shall not bee compelled Nolens volens to take a thing devised to him If a woman sole devise her lands or goods by Will and after take Plow 34â— a husband and die during the Coverture by this meanes the Devise is become void And yet if she survive her husband and die unmarried now is the Devise become good againe If one devise his land to I S and his heires and afterwards I S Plow 60 34â— 34â— 34â— die living the Testator by this meanes the Devise is become voyd And in this case no verball declaration of
possession but now this Law is changed and this kind of fine will barre none but such as are parties and privies thereunto But a fine by the Statute or a fine with Proclamations is now much of the same virtue and force as a fine at the common law was for by the Statute of 4 H. 7. it is provided That every fine after the ingrossing thereof shall be proclaimed in the Court the same Tearme and the three next following Tearmes foure severall daies in every Tearme which Proclamations so made the fine shall conclude all parties privies and strangers except women covert persons within 21. yeares of age in prison out of the Realme or of non sane memorie being no parties to the fine so as they or their heires take their action or lawfull entrie within five yeares after these imperfections removed Saving to all persons and their heires other then parties the right claime and interest which they have at the time of the fine so as they pursue it by action or entrie within five yeares after the Proclamations And saving to all other persons such right title claime and interest as first shall grow or come to them after the Proclamations by force of any matter before the fine so as they make their claime or entrie within five yeares after the same grow due or if at that time there be any impediment as aforesaid within five yeares after the impediment removed And by the Statute of 32 H. 8. which is an exposition of this Statute it is provided That all fines with Proclamations levied according to 4 H. 7. by any person of 21. yeares of age of any land c. before the fine levied entailed to him that doth levie the fine or any of his Ancestors in possession reversion remainder or use immediately after Proclamations had shall be a barre against him and his heires claiming only by force of any such entaile and against all others claiming only to the use of him or any heire of his body By which Statute it doth appeare that all the parties to the fine Conusors and Conusees whether they be femes Covert men de non sane memorie or others Infants only excepted who during minority may avoyd it and whether they have a naturall or civill capacity privies viz. privies in bloud as heires whether they be lineall or collaterall or privies in representation as executors and administrators and all strangers also viz. all others besides parties privies that have or pretend any present right or title except women covert and the rest that have impediment that doe make their entrie or claime or bring their action within 5. years after Proclamations had and those persons excepted also if they make not their claime c. within five yeares after the impediment removed all these are concluded i. so shut and closed up together for their right is so extinct hereby as they can never open their mouthes or lift up a finger against it Saving to all others i. such as have no present right at the time of the fine levied and were excepted before such right title claim or interest as shal accrew to them after the Proclamations upon any trust gift in taile or other cause before the fine levyed so as they make their claime c. within five years after their right first accrewed if they have then no impediment or if they have within five yeares after the impediment removed For a more full understanding of which Statutes and this matter these things in generall must first be observed 1. That the persons to be barred by a fine are 1 Parties 2 Privies 3 Estrangers The parties if they be of the age of 21. years are bound for ever by the fine and shall have no time to claim to preserve their right The privies also being heires and executors to the parties and voyd of impediment at the time of the fine levied or not if they claim by the same title that their Ancestor had that levied the fine are barred for ever by the fine and shall have no time to claime to preserve their right †Dyer 3. pasche 7. Jac. B. R. And therefore if my father disseise my Grandfather of land and then levie a fine of the land and then my Grandfather die and after my Father die by this fine I am barred of the land for ever And here note * Trin. 21 Jac. Com. B. Curia in in Will Godfreys case that he that is a privie within the intent of 4 H. 7. is an heire within the Statute of 32 H. 8. Et sic è converso And that privies or heires in estate and bloud as he that is heire to whom the land doth or should descend are within these Statutes and shall be barred by the fine of their Ancestor of that land And so also shall privies in estate that are not privies in bloud as where one hath land in burrow English and levie a fine of it hereby the youngest sonne is barred So if one bee tenant in taile to him and the heires females of his body and he levie a fine having a sonne and daughter hereby the issue female is barred and yet she is not the heire of his bloud But he that is privie in bloud only and not in estate also is not within these Statutes neither shall he be barred by the fine and therefore if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the son levie a fine and die without issue this is no barre to the daughter for howsoever she be heire of his bloud yet she is not heire to the estate nor shall need to make her conveyance to it by him The strangers that are to be concluded by the fine are either 1. Such as have present right and no impediment and these are barred within five yeares if they make not their claime within five yeares after the Proclamations 2. Such as have present right but have impediment of infancy c. and these are barred if they doe not make their claime within five yeares after the impediment removed 3. Such as have no present but future right upon cause precedent and they are either without impediment and then they are barred if they claime not within five yeares after their right doth acrew or they have impediments and then they are barred if they claime not within five yeares after the impediment removed 4. Such as have neither present nor future right at the time of the levying of the fine by reason of any matter before the fine but whose right groweth either entirely after or partly before and partly after the fine and these are not barred at all by the fine but they may make their claime c. when they will And parties privies and strangers to Plow 538. 337 375 378. fines that are barred thereby are such as have naturall capacities or civill for both these are barred And
once after the proclamations made wholly removed and after they fall into the like againe and dye in this case their heires shall not have a new five years but the first five years begun in their Ancestors time immediately after the first impediments so removed shall proceed and non-claime of their heires during all the residue of the said five years bindeth them as their said Ancestors should have been bound thereby if they had remained void of such impediments during all the said five years Estrangers to fines that have no present but a future right and 4. That are without impediment having future right upon cause precedent that such as groweth wholly before the proclamations if they be Plow 373. Dier 224. void of impediment shall have five yeares time after their right title claime or interest first groweth remaineth descendeth or cometh to them after the proclamations And therefore if a Mortgagee be disseised and the disseisor doth levy a fine with proclamations and the five years passe and after the Mortgagor payeth or tendreth the money in this case he shall have time for five years after the tender or payment of the money to make his claime c. So if a man levy a fine of his land whereof his wife is dowable shee shall have five years after her husbands death to make her claime c. and not be bound by the five years after the fine l Plow 374. So if tenant in taile levie a fine with proclamations and after the five yeares dyeth without issue the donor shall have five years after his death without issue to bring his Formedon m Co. 78. Plow 373. 374. So if lessee for life levy a fine or make a feoffement in fee and the feoffee doth levy a fine in this case he in reversion or remainder shall not be bound by the next five years after the fine levied but he shall five years next after the death of the tenant for life and if he dye within the five years his heires shall have only so much time as to make up the time before his death five yeares n Plow 374. Co. 9. 105. So also is the law if lessee for life be disseised and the disseisor or a stranger levy a fine in this case he in reversion or his heires shall have five years after the death of the tenant for life and shall not be bound to the next five years after the time of the fine levied o Plow 374. 19 H. 8. 7. Co. 3. 87. 84. Dier 3. So if tenant in taile in possession levy a fine and dye without issue in this case he in the remainder shall have time for five years after the death of the tenant in taile without issue and if he make not his claime c. in that time he and his issues are barred for ever The same law is for him in reversion or the donor if there be no remainder p Co. 3. 87. And if tenant in taile discontinue in fee and the discontinuee levieth a fine with proclamations and five years doe passe and the tenant in taile dieth in this case his issue shall have five years after the Descender to bring his Formedon q 30 El. But if tenant in taile discontinue rendring rent and dye and the issue accept the Rent which doth barre him for his time and then the discontinuee levieth a fine and dyeth in this case the issue of the issue shall not be barred by the five yeares after the fine but shall have five yeares after the death of the issue r Plow 374. And if one de non sane memorie make a feoffement and the feoffee levie a fine and then the feoffer die in this case the heire shall have 5. yeares after the death of his Ancestor and not be bound by the 5. yeares next after the fine levied Estrangers to fines that have future right upon any cause precedent See the Statutes Plow 366 367. Dyer 3. Plow 358. being affected with such impediments when the right first accreweth 5. That have future right and impediment shall have 5. years after the impediment removed to make their claime c. And therefore infants that are borne or in their mothers wombe when such right doth happen to them women Covert mad men Lunaticks prisoners beyond the Seas shall have this time As if a man have issue a son and a daughter and the son doth purchase lands and die and the daughter entreth as his heire and is disseised by A who levieth a fine and 5. yeares claime without claime and tenne yeares after the father hath another sonne who is heire to his brother he shall have in this case a new full 5. yeares after he come to his full age for he is the first unto whom the right descended after the Proclamations But if a stranger to a fine to whom a remainder or other title first accreweth after the fine doe not pursue his right within 5. years hereby he and his issues are barred for ever And in like manner if the first issue in taile to whom the title of the taile first accreweth neglect to make his claime c. within the first 5. years after his title accrewed hereby he is bound for ever and the whole estate taile also And if one abate after the death of a tenant in fee-simple and make a feoffement upon condition and the feoffee levie a fine and 5. yeares passe without any claime made by his heire hereby the heire is barred for the present but if afterwards the condition bee broken and the Abator enter then the heire may have an assise of Mortdancester against the Abator or enter when he will Estrangers to fines that have neither present nor future right at 6. That have no right for any cause before the â—ine the time of the levying of the same fines by reason of any matter Plow in Stowels case before the fines levied whose right groweth entirely before the Proclamations or partly before and partly after may make their claime c. when they please As if a father die seised of land his elder sonne being professed and the younger sonne entreth and is disseised and a fine with Proclamations is levied and then the elder sonne is dearaigned in this case it seemes he is bound to no time So if a tenant cease one yeare and then a fine with Proclamations is levied and after the tenant ceaseth another yeare the Lord may have his Cessavit 20. years after the Proclamations And estrangers to fines that have severall future rights by divers 7. That have future rights by divers titles titles growing at severall times it seemeth shall have severall five Plow 537. 367. 372. years to make their claims c. commencing from the severall times that their titles do first accrew unto them As if tenant for life the remainder in fee make a feoffement in fee and the feoffee levie a fine
So if one give all his goods and chattels to his executor in his life time by deed of gift this shall be said to be fraudulent and shall be void as to Creditors And albeit those to whom the deed of fraud is made know nothing of the fraudy yet is the deed fraudulent in that case also as well as where they are privie to it If after a Commission of Bankrupts be sued out the debtor Co. 2. 25. make a deed of gift of all his goods to one of his Creditors in satisfaction of his debt in this case this deed shall be void as against the rest of the Creditors and as to the Commissioners and they may order it with the rest of the estate notwithstanding But if A bonâ fide and for valuable consideration mortgage his land By the two Judges of Assise Aug. 5. Car. in Com. South Lady Lamberts case whereof he hath a term of years to B upon condition that if he repay the mony to B a yeare after that he shall reenter and B doth covenant with A that he shall take the profits of it untill that time c. A doth not pay the money and B hoping that he will pay it in time doth suffer him to continue in possession and take the profits of it two or three years after and in the interim judgment is had against A upon a bond and execution awarded in this case execution shall not be made of this lease for this deed of mortgage shal not be said to be fraudulent as to the Creditor for when a conveyance is not fraudulent at the time of the making of it it shall never be said to be fraudulent for any matter ex post facto If A be seised of the fifth part of the Manor of B and B of the Mich. 19 Jac. Co. B. Miller Potscase 6th part and M cometh to A to buy his part and after M saith to A my Counsell tells me I cannot safely buy of you unlesse B joyn and after B doth grant a rent charge of 15l per annum out of this Manor to C her sonne and the heires of his body in consideration of naturall affection and this was about 1o. Jac. C being then but about three years old with proviso that if D whom B did then intend to mary grant to the said C the like rent of 15l and for the like estate out of 20l. land by the yeare of the land of B then the said grant to be void and after the said A bought the 6th part of the said Manor of B and D her husband being intermaried and after A B and D her husband joyne in the grant to M and in this case it was ruled that this grant to C was not fraudulent and void If one doth hold his land to pay a hariot Co. 10. 56 57. at the death of every one that dyeth tenant in fee simple and he infeoffe his sonne and heire in consideration of naturall affection and mariage to be had between the sonne and I and the son to prevent the Dower of his intended wife during his fathers life makes a lease for forty yeares unto his father if his father live so long and afterwards the mariage is had the father payeth the rent the sonne doth suit of Court for the land and after the father dieth in this case this lease shall not be said to be fraudulent as to the Lord to deceive him of his hariot because it was made to another Stat. 52 H. 3. c. 9. 34 H. 8. ch 5. Co. 6. 76. Lit. Bro. Sect. 59. Plow 49. Co. 8. 164. 9. 129. end A deed also made to defeate the King or other Lord of his 3. To deceive Lords of their wardships c wardship shall be void as to a third part of the thing conveyed And therefore if any tenant that holdeth of the King or any other Lord make a feoffment or other conveyance of his land to defeate and defraud the King or Lord of his wardship primer seisin or any other benefit appointed and preserved for the Lord by the Statutes of 32 and 34 H. 8. shall be void as to a third part thereof against the King or other Lord who shall notwithstanding have their wardship and other benefits as if none such were made As if such a tenant by deed enfeoffe his lineall or collaterall heire within age or make a lease for life the remainder to his heire or make a gift in taile the remainder in fee to his heire or make a feoffment on condition that he shall reinfeoffe his heire at his full age or make a feoffment for the paiment of his debts preferment of his wife and children or infeoffe another to the intent that he shall take the profits till he have an heire male and then to reinfeoffe him all these are fraudulent and void as to a third part of the land and as against the King or other Lord in respect of the benefit they are to have of and by the land But no conveyance in these cases shall be said to be fraudulent and so void for two parts of the land And if one make a feoffment of land to two whereof his heire is one and their heires for mony or other valuable consideration this shall not be said to be a fraudulent conveyance of any part So if such a joyntenant make a feoffment of his moity to a stranger * Dyer 9. Co. 2. 94. And in cases where the feoffment is fraudulent for a third part as before if the feoffee dye or make a feoffment over bonâ fide before the death of the Ancestor in these cases the deed is become good again and the collusion gone If a Dyer 268. Co. 10. 57. man for feare of debts convey his lands to friends with condition that upon payment of 10l they shall convey it to those whom he shall appoint in this case the conveyance shall not be said to be fraudulent as to the King or other Lord for it was done to another end and therefore it is a good conveyance against all men but the Creditors Where deeds shall be void in part or in all for want of inrollment atturnement livery of seisin or the like see afterwards If a deed that is well and sufficiently made in his Creation shall Co. 11. 27. 5. 119. Dyer 59. 261. Perk. Sect. 123. 135. Kelw. 162. Fitz. Release 27. 14 H. 8. 25. Bro. Fait 9. 6 Where a deed good in his creation may become void by matter ex post facto And what will make such a deed void or not 1. By Rasure be afterwards altered by rasure interlining addition drawing a line through the words though they be still legible or by writing new letters upon the old in any materiall place or part of it as if it be in a deed of grant in the name of the grantor grantee or in the thing granted or in the limitation of
and he by writing recite that the defendant hath a terme of years and doth suppose it to begin 1o. Maii 2 Jac. when in truth it doth begin the 20th of August and then sell the same terme in this case this sale is void But if he adde withall these words in the deed And all the interest that the defendant had in the land or if he make sale of it for a certain number of years only this grant may be good notwithstanding the misrecitall If one recite a former lease to be made such a day to I S and Dier 93. 160. then make a new lease to begin after the end of the former lease and mistake the date of the old lease in this case the deed is good notwithstanding this mistake If one grant a reversion and in reciting the lease in possession 8 H. 7. 3. Fitz. Grant mistake the date of it only and recite all the rest truly this will not hurt the grant No more then where a man doth recite that such land came to him by forfeiture and then doth grant it by name for in this case albeit it did not come to him by forfeiture but by surrender yet this mistake will not hurt And yet in case of the King such a misrecitall may make the grant void If I grant to I S all the lands in Dale which I purchased from Dier 50. 87. 376. I D or which came unto me by descent from I D or I give all my goods to I S which I have as executor to I D and in truth I have no such lands or goods but I had them by some other meanes or of some other in these cases and by this mistake the deed is void But if I grant to I S all my lands in Dale by name as white acre which I purchased of I D and in truth I did purchase them of another in this case this mistake will not hurt the deed So if I grant 20. load of wood in Dale in the great wood which I had of the grant of my father and in truth I had not of the grant of my father but of the grant of another in this case the grant is good But of this matter see more in Grant Numb 4. part 5. An Exception is a clause of a deed whereby the feoffor donor 6. Exception Quid. Plow 361. 195. Dier 59. Perk. Sect. 615. Co. super Lit. 47. 3 H. 6. 45. grantor lessor c. doth except somewhat out of that which he had granted before by the deed And this doth most commonly and properly succeed the setting downe of the things granted and is made by one of these words Except ' Preter Salvo Si non or such like And hereby the thing excepted is exempted and doth not passe by the grant neither is it parcell of the thing granted as if a manor be granted excepting one acre thereof hereby in Judgement of Law that acre is severed from the manor But this may be in any part of the deed and so hath it been resolved Hil. 17. Car. B R. Fregunnels case Perk. Sect. 42 c. In every good Exception these things must alwaies concurre 7. What shall be said a good exception or not 1. This Exception must be by apt words 2. It must be of part of the thing granted and not of some other thing 3. It must be of part of the thing only and not of all the greater part or the Plow 19. Co. super Lit. 47. effect of the thing granted 4. It must be of such a thing as is severable from the thing which is granted and not of an inseparable incident 5. It must be of such a thing as he that doth except may have and doth properly belong to him 6. It must be of a particular thing out of a generall and not of a particular thing out of a particular thing or of a part of a certainty 7. It must be certaintly described and set downe As for examples a Plow 195. Perk. Sect. 641. If a man grant al his lands in Essex saving besides or except his lands in dale or all his lands in Dale excepting one house or one acre in certain or one house excepting one chamber in certain these and such like Exceptions are good b Dier 103. Plow 104. 361. 67. Co. 8. 63. 11. 47. 5. 11. Perk. Sect. 642. 3 H. 6. 35. And if one grant a manor excepting one Tenement parcell of the manor or excepting the Services of I S who doth hold of the manor or excepting one Close or excepting one acre or excepting the Advowson appendant or excepting the woods or excepting twenty acres of wood or excepting all the grosse trees these are good exceptions c 14 H. 8. 1. And if one grant a mesuage and houses thereunto belonging excepting the barne or excepting the dovâ—house it seemes this is a good exception for they may passe by the grant of a mesuage c. d Co. 8. 63. 5. 23. And if one grant land excepting the Timber trees thereupon or excepting the trees thereupon or if a man sell a wood excepting 20. of the best oakes and shew which in certain these are good exceptions e In the case of Haward Fulcher. Hil. 3. Car. B. R. So if one have a manor wherein is a wood called the great wood and he grant his manor excepting all the woods and underwoods that grow in the great wood and all the trees that grow elsewhere this is a good exception f Co. 11. 64. And if one grant a mesuage and all the lands and tenements thereunto belonging excepting one cottage this is a good exception g Perk Sect. 113. 644. Dier 157. And if one grant a reversion excepting the rent this is a good exception of the rent and doth keep it from passing by the grant So if a man have a a rent charge out of land and he release his right in the land except the rent So if the Lord release to his Tenant Salvo dominio suo c. these are good exceptions h Plow 361. And if one grant all his horses except his white horse this is a good exception of the white horse i 3 H. 6. 45. Perk. Sect. 643. And if a man be seised of a manor and lease it by deed indented for life exceptis reservatis quod bene liceat to the lessor succidere dare vendere omnes grossas arbores in dicto manerio crescentes c. it seemes this is a good exception of the trees But if the exception be of another thing then the thing granted k Perk. Sect. 639. Dier 59. Plow 361. 67. 370. As if one grant a manor or land excepting 12 d. or excepting the Tithes or excepting one acre of ground which is no parcell of the manor or of the land before granted or if one grant the land descended to him of the part of his
father excepting the land descended to him of the part of his mother these exceptions are void l Dier 97. 264. Co. super Lit. 47. Plow 153. 103 104. 14 H. 8. 1. Doct. Stud. 98. Or if the exception be such as it is repugnant to the grant and doth utterly subvert it and take away the fruit of it as if one grant a manor or land to another excepting the profits thereof or make a feoffement of a close of meadow or pasture reserving or excepting the grasse of it or grant a manor excepting the services these are void exceptions m Dier 59. 263. So if one grant his house chambers cellars and shops excepting his shops it is said this is no good exception And by the like reason if one grant his meadow and pasture grounds except his meadow grounds this exception is not good no more then if one grant two manors or two acres excepting one of them And of this opinion was the Chiefe Justice in B. R. Hil. 3. Car. in the case of Haward and Fulcher. n Plow 524. Dier 264. Br. grant 60 38 H. 6. 38. And yet if a man make a lease for yeares of a Mill excepting the profits thereof during the life of the lessor it is said this hath been adjudged a good exception But I doubt of this case for the exception of the profits of a thing is the exception of the thing it selfe And a man cannot grant an estate and reserve a part of the estate as make a feoffement in fee and reserve a lease for life or grant an Advowson and reserve the Presentation for his life o Co. super Lit. 150. Or if the exception be of an inseparable incident and a thing that cannot be granted by it selfe and from another as if a manor be granted excepting the Court Baron or land be granted excepting the common appendant thereunto belonging these exceptions are void But exceptions of severable incidents are good p Co. 5. 12. Hiâ— 9 Jac. B. R. per Curiam Or if the exception be of such a thing as the grantor cannot have nor doth belong to him by law as if a lessee for years assigne over all his terme in the land excepting the Timber trees earth or clay this exception is not good But if lessee for life make a lease for years or lessee for 21. years make a lease for This difference hath been agreed 20. years or tenant by the courtesie or in dower grant over their estate excepting the Timber trees these are good exceptions And if a lessee for life or years open a Cole-mine and then assigne over his estate excepting the mines or the profits thereof these are void exceptions q Co. super Lit. 47. Plow 53. Or if the exception be of a particular thing out of a particular thing as if one grant white acre and black acre excepting white acre or grant 20. acres of land by particular names excepting one acre of them these exceptions are void r Perk. Sect. 643. 641. Or if the exception be set downe incertainly as if one grant a house excepting one chamber or grant a manor excepting one acre but doth not set forth which châ—mber or which acre it shall be these exceptions are void A Tenendum is a clause of the deed whereby the tenure was heretoforce created And this doth most commonly and properly 8. Tenendum Quid. Co. super Lit. 6. Co. 9. 130. succeed the Habendum and was made by this word Tenendum per servicium c. But sithence the Statute of Quia emptores terrarum when the fee simple doth passe the tenure is alwaies of the chiefe Lord and is thus set forth Tenendum de capitalibus dominis c. And this clause at this day is for the most part omitted altogether A Reservation is a clause of a deed whereby the feoffor donor Co. 10. 107. Plow 132. Co. super Lit. 47. Perk. Sect. 625. lessor grantor c. doth reserve some new thing to himselfe out 9. Reservation or Reddendum Quid. of that which he granted before And this doth most commonly and properly succeed the Tenendum and is made by one or more of these words Reddend ' reservand ' solvend ' faciend ' inveniend ' or such like This doth differ from an exception which is ever of part of the thing granted and of a thing in esse at the time but this is of a thing newly created or reserved out of a thing demised that was not in esse before so that this doth alwaies reserve that which was not before or abridge the tenure of that which was before In every good reservation these things must alwaies concurre 1. 10. What shall be said a good reservation And what not a Plow 132. Perk. Sect. 626. Co. 8. 71. It must be by apt words 2. It must be of some other thing issuing or comming out of the thing granted and not a part of the thing it selfe nor of some thing issuing out of another thing 3. It must be of such a thing whereunto the grantor may have resort to distraine 4 It must be made to one of the grantors and not to a stranger to the deed As for examples b Plow 132. If a man grant land yeelding and paying money or some such like thing yearly this is a good reservation But if the grantee covenant to pay such a summe of money or to doe such a thing yearly this is no good reservation but a covenant to pay a summe of money in Covenant grosse and not as a rent c Co. 5. 111. 8. 71. super Lit. 214. 213. 99. If a lease be made for years rendering a rent to the lessor or his heires in the disjunctive or rendering a rent to the lessor without saying and his heirs c. or rendering a rent during the said terme and doth not say to whom or rendering 10 l. to the lessor and â—5 l. to his heires all these reservations are good But if a lease be made rendering rent to the heires of the lessor this reservation is void because the rent is not reserved to himselfe first d Co. super Lit. 142. If one grant land yeelding for rent money corne a horse spurres a rose or any such like thing this is a good reservation but if the reservation be of the grasse or of the vesture of the land or of a Common or other profit to be taken out of the land these reservations are void e Co. super Lit. 47. Co. 5. 3. Perk. Sect. 626. If one grant a manor mesuage land meadow or pasture or the vesture or herbage of of land meadow or pasture rendring a rent this is a good reservation But if one grant Tithes rents commons advowsons offices a corody mulcture of a Mill a Faire market priviledge or liberty reserving a rent this reservation is void And yet such a reservation also in case of the King
hath an estate taile If lands be granted to I S to have and to hold to him and the 12 N. 4. heires he shall happen to have of his wife by this he hath but an estate taile and no feesimple and his wife hath no estate at all If lands be granted to I S and the heires that the said I S shall Co. super Lit. 20. lawfully beget of his first wife and he hath no wife at the time of the grant by this he hath an estate taile If A have issue by B his wife C a sonne D a daughter and A Co. super Lit. 26. die and lands are granted to B to have and to hold to her and to the heires of A her late husband on her body begotten in this case and by this deed C hath an estate taile the woman hath only an estate for life and if C die without issue D his Sister shall have the land per formam doni But if one grant lands to A late wife of I S to have and to hold to the said A and the heires of I S on the body of the said A begotten in this case the son and heire shall take no estate by the grant And the same construction shall be upon the same words in his Will Will. If lands be granted to the husband and wife to have and to hold Co. super Lit. 26. to them and the heires of the body of the surviver of them by this the survivor shall have an estate taile after the death of the other If lands be granted to I S to have and to hold to him heredibus Co. super Lit. 20. de carne sua or heredibus de se or heredibus quos sibicontigerit in all these cases I S hath an estate taile and no more If lands be granted to husband and wife to have and to hold to Co. super Lit. 28. him and the heires of the body of the husband the remainder to the husband and wife and the heires of their two bodies begotten this remainder is void and therefore by this the husband hath an estate in taile and the wife a joint estate for life with her husband and no more If lands bee granted to I S and his heires of the body of Co. 1. 140. Jane a Noke begotten by this I S hath an estate taile and no more If lands be granted to I S heredibus de corpore procreatis by this the heires that shall be begotten afterwards shall take And Co. super Lit. 20. if lands begranted to I S heredibus de corpore procreandis by this the heires of his body before begotten shall take per formam doni as well as those that shall be begotten afterwards If one grant to I S that if he and the heires of his body bee not Co. super Lit. 146. yearely paid 40. that hee or they shall distraine in the lands of the grantor by this the grantee hath an estate in taile in the rent as if he grant to I S that if he and his heires be not paid c. that he or they shall c. he hath a feesimple in the rent For life If one give or grant land to another to have and to hold to him Lit. Sect. 283. 285. Co. 8. 85. 96. 2. 24. Finches Law 60. Co. super Lit. 9. Dyer 307. Co. 7. 23. or to him and his assignes and say not how long nor for what time and the grantor make livery of seisin according to the deed by this the grantee hath an estate for his owne life But no livery of seisin be made no estate at all but an estate at will doth passe by this deed And if he that doth grant the land be but a lessee for years of the land and he make no livery of seisin upon the grant by this his terme of years and that estate which he hath is granted But if he make livery of seisin upon the grant then an estate for the life of the grantee will passe and it is a forfeiture of the estate of the lessee for Forfeiture 17 Ass Pl. 17. years of which he in reversion may take present advantage And if one grant to another Common in his land when he doth put in his owne beasts or Estovers in his Manor when he commeth there and say no more by this it seemes the grantee hath an estate for life If one grant land to I S to have and to hold to him or his heirs Co. 5. 112. super Lit. 8. in the disjunctive this is but an estate for life and no more So if one grant lands to I S to have and to hold to him and his heire in the singular number by this I S hath only an estate for life and no feesimple If one bargaine and sell land to another for money and limit no Co. 1. 87. 130. Plow 539. time and expresse no estate by this the bargaine shall have only an estate for life But otherwise it was before the Statute of Uses for then it had been a fee simple If lands be granted to I S for life and after to the next heire Co. 1. 66. male of I S and the heires males of the body of such next heire male by this I S hath but an estate for life But if it be to the next heires males of I S it is an intaile If one grant land to I S to have and to hold to him in fee 20 H. 6. 33. simple or in fee taile without saying to him and his heirs or to him and his heires males or the like this is but an estate for life and no more So if one grant land to I S to have and to hold to him and his feed or to him and his issues generally without more Co. super Lit. 8. 20. words by this is made only an estate for life But in the construction of a Will the law is otherwise in most of these cases Will. If lands be granted to two heredibus without this word Suis 20 H. 6. 35 by this they have an estate for their lives and no longer If one grant lands to I S to have and to hold to him and his Co. 5. 112. 1. 140. heires for his owne life or for the life of I D by this I S hath an estate for life and no more If one grant lands to A and B Habendum sibi suis omitting Co. 4. 29. super Lit. 1. 8. all other words or to have and to hold to them and their assignes by this they have an estate for life only So if lands be granted to any naturall person to have and to hold to him and his Successors by this he hath only an estate for his life If one grant his lands to I S to pay his debts to have and to Co. 8. 96. hold to him generally without limiting
have it or if this be neglected then he must take care to grant over his estate by act executed for by his last will he may not devise it to some friend and his heires in trust for him or he may grant it over to another and take a regrant of it to himselfe and his heires or he may make a lease for years of the lands to some friends in trust and by this meanes he may have the fruit of it during the terme When no time is set downe for the beginning of an estate then Co. super Lit. 46. Co. 5. 1. 2. 5. Die◠286. 307. it shall begin presently otherwise it shall begin at the time expressed For years When such a lease shall begin and how long it shall continue if it may stand with law If a lease for years be made bearing date the 26th day of May To have and to hold for 21. years from the date or from the day of the date in these cases the lease shall begin on the 27th day of May. But if the words be To have and to hold from henceforth or from the making hereof in these cases the lease shall begin on the day in which it is delivered And if it be to begin à die confectionis then it shall begin the next day after the delivery And if it be To have and to hold for 21. years without mentioning when it shall begin it shall begin from the delivery if there be no former lease in being and if there be then it shall begin from the time of the ending of that lease If the deed have a date which is void or impossible as the 30 of February or 40. of March and the terme be limited to begin from the date then it shall begin from the delivery So if a man by his deed recite a lease which is not or which is void or misrecite a lease that is in esse in point materiall and then say To have and to hold from the end of the former lease this lease shall begin in course of time at the time of the delivery of the deed If one make a lease of land to A for 20. years and then grant Co. 1. 154. Plow 198. it to B To have and to hold to him from the end of the first terme c. in this case this second lease shall begin assoone as the first lease by what meanes soever shall end But if the words of the second lease be To have and to hold to him from the end of the 20. years in this case the second lease shall not begin untill the 20. years be expired And if one make a lease of white acre to A for 10. years and of blacke acre to B for 20. years and then reciting both the leases doth make a lease to C to begin after the former leases this shall be taken respective and shall begin for white acre after the end of the 10. years and for black acre after the end of 20. years And if one make a lease to two for 60. years provided that Co. 6. 36. if the lessees shall die within the term that then presently after the decease of the last of them longest living the lessor shall reenter and one of them die and after the lessor doth make a lease to another Habendum c. cum post sive per mortem sursum redd vel forisfacturam of the first surviving lessees acciderit vacare for 40. years in this case this second lease shall begin after the death of the lessee surviving reentry of the lessor or the effluxion of time of the first lease which of them shall first happen and the lessee cannot at his election make it to begin at any other time If a man make a lease for 30. years and 4. years after make another lease to another man in these words Noveritis c. me A de Dier 261. B predictis 30. Annis finitis dedisse concessisse B de C c. Habendum à die confectionis presentium termino predicto finito usque finem 31. Annorum by this the second terme shall begin at the end of the 30. years And if one make a lease to A for 20. years and after make a lease to B to have and to hold to him from the Craddocks case pasc 7. Jac. Co. B. end of the first terme for 20. years to be accompted from the date of the last deed in this case the second lease shall begin at the end of the first lease these words to be accompted c. shal be rejected If one make a lease of land to A for 10. years and after by Dier 112. indenture grant it to B to have and to hold to him from Michaelmas next for 10. years and after the first lessee doth purchase the reversion by which his terme is drowned in this case the second lease shall begin presently when Michaelmas is come If two Jointenants be and one of them grant the land to I S to Mich. 13 Jac. B. R. have and to hold to him for 20. years if the lessor and his companion so long live by this the lease shall continue no longer then they both live together and when either of them is dead the lease is determined * Co. 5. 9. And if one grant his land to I S to have and to hold to him his executors c. for the terme of 100. years if A B and C live so long and leave out these words or either of them in this case if either of them die the lease is determined But if the words be To have and to hold for 100. years if A B or C omitting or either of them shall live so long contra †Pasch 30. Eliz. Co. B. If a lease be made of land to the husband and wife to have and to hold to them for 21. years if the husband and wife or any child between them shall so long live this is a good lease and shall continue for all their lives and for the life of the longest liver of them albeit the first words be in the copulative If one possessed of land for a terme of years grant the same to another Dier 307. 69. Plow 520. 524 525. 423 424. Co. 7. 23. To have and to hold to him his executors and administrators or to him and his assignes or to him without any more words or if a man that is possessed of a terme grant his lease to another and doth not say for what time it seemes in these cases the whole terme is granted albeit no livery of seisin be made And in the first case if livery of seisin be made then it seemes there doth passe an estate for the life of the grantee and therefore that this is a forfeiture of the estate of the lessee for years whereof he in the reversion may take advantage presently And if a lessee for years of land grant a
that the feoffee shall purchase Perk. Sect. 807 808. 21 H. 6. 28. Dier 15. lands or tenements to the value of twenty pound per Annum To purchase lands and he purchase a rent common or any such like thing to that value this is a good performance of the condition But if in this case the feoffee and another purchase so much land together jointly this is no good performance of the condition So if the feoffee alone purchase lands to the value of twenty pound per Annum and there is a rent issuing of it which must be deducted this is no good performance And yet in these cases if the stranger Jointenant release to the feoffee all his right in the land or the grantee of the rent release to him the rent before the time of the performing of the condition the condition is well performed in both cases Tantum valet terra quantum vendi potest And if one make a feoffement Perk. Sect. 812. in fee on condition that if the feoffee purchase land to the value of twenty shillings the feoffement shall be void and after the feoffee disseise another man of land to that value it is said that by this the condition is performed Sed quere And that if he recover so much land in value in an action that this is no performance of the condition Sed quere For this seemes to me a better performance Payment of the condition then the former To pay mony Tender If lands be granted on condition to pay money and the money Dier 181. Lit. Sect. 334 335. 338. Co. super Lit. 209. is tendred according to the condition but either no body is ready to receive it or it is refused this is a good performance of the condition And after a man hath once refused the money so tendred to him according to the condition he hath no remedy in law â—o recover it except it be money lent upon a mortgage a Termes of the law tit coine And if the payment be made part of it with counterfeit Coine and the party accept it and put it up this is a good payment and consequently a good performance of the condition b Co. super Lit. 212. Fitz. Barre 343. And if at the day of payment the parties doe account together and he to whom the money is to be paid being indebted to the other that debt by agreement Acceptance is allowed and the residue is paid and accepted this is a good performance of the condition c Co. super Lit. 212. So if the party that is to receive it accept and take new security by bond or statute for the money this is a good performance of the condition d Dier 45. Co. 5. 96. And so in most cases when by a condition a thing is to be done one way and to be done to the party to the condition himselfe and not to a stranger and he doth accept it another way this is a good performance of the condition VoleÌ„ti non fit injuria But if the thing to be done be to be to a stranger one that is no party to the condition and it be done in any other manner and he accept thereof this is no performance of the condition And so also if the time of doing the thing be past as if one make a feoffement to me on condition that if he pay me tenne pound such a day the feoffement shall be Perk. Sect. 392. void and he doth not pay me at the day but doth die and after by agreement between his heire and me me doth pay me the tenne pound and I receive and accept it and thereupon I suffer him to enter and hold the land in this case the condition is not performed but I may enter upon him and out him notwithstanding If the mortgagor pay the money according to the condition and Adjudge Mich. 40. 41 Eliz. B. R Powel versus Bartholomew after the mortgagee deliver it to the mortgagor as his own money the condition is performed and the mortgage discharged notwithstanding If a feoffement be made to I S on condition that if the feoffor pay to the executors or administrators of I S tenne pound the Co. 5. 96. super Lit. 209. feoffement shall be void and I S die and the tenne pound is paid to the executors of I S according to the condition but it is covinouâ—â—y done i. there is a private agreement that the feoffor shall have all or part of his money againe this payment in this case is no good performance of the condition but that payment that must be a performance of a condition in this case to fetch lands out of the hands of an heire must be reall full and effectuall If a lease be made on condition that the lessee shall get the To get the good will of I S. 14 H. 8. 17. good will of I S and the lessor doth come to I S first and aske his good will and he denie it him and after when the lessee doth aske it he doth grant it him in this case the condition is performed So if the condition be that he shall get his good will by such a day and at the first being desired he denieth it but afterwards and before the day he doth grant it And yet if no day be set and he desire his good will and I S denieth it and afterwards he doth get his good will it seemes this is no performance of the condition If there be two things in the copulative to be done by the condition Perk. Sect. 746 See before both must be done otherwise the condition will not be performed If a feoffement be made on condition that if the feoffor and I S Co. super Lit. 219. pay tenne pound at Michaelmas the feoffement shall be void 2. When the act is to be done by a stranger to pay money 3. When the act is to be done to a stranger To make an estate and before the day the feoffor die and I S pay the money this is a good performance of the condition But if the feoffor be living contra If a feoffement be made on condition to make an estate to a Plow 133. Co. 3. 64. stranger by a day and before the day he die in this case if an estate be made as neere the condition as may be it is sufficient * Tender If a feoffement be made to I S on condition that he shall infeoffe Co. super Lit. 209. 19 H. 6. 67. Perk. Sect. 815 816. 2 E. 4. 2. 19 H. 6. 67. I D and his heires and I S doth tender the feoffement to I D and he doth refuse to take it this is no performance of the condition in this case But if it be to be done to the feoffor himselfe contra And so also it is if the condition be to make an estate taile or any lesser estate to a
on condition and the lessee doth Co. 8. 92. not know of it and after the lessor doth by will give the land to the lessee without condition and the lessee doth such an act as is a breach of the condition in this case the condition is not broken for the lessee must have notice of the condition ere he can breake him If a lease be made rendering rent on condition that if the rent Doct. Stud. 35. 13 H. 4. 17. To pay rent be not paid within twenty daies the lessor shall reenter and the rent is not paid in this case the condition is broken but the lessor cannot enter untill he hath made a legall demand and if he die before he doe it his heire shall never take advantage of that breach but it is discharged for ever When an act is to be done in time convenient or otherwise and the party doe it not by the time appointed by law the condition is Li. Sect. 353. Plow 30. broken If one grant an annuity pro consilio impenso impendendo and the To give advise grantor require advise and the grantee refuse or neglect to give it 21 E. 3. 7. 8 H. 6. 24. Dier 369. this is a breach of the condition and a forfeiture of the estate And if the deed be that he shall goe to such a place to give counsell and he require him to goe thither and he refuse it this is a forfeiture of the estate But if he refuse to goe with him to another place or give counsell to his adversary being not required to give counsel to him this is no breach of the condition nor forfeiture of his annuity And if one had heretofore devised his land to be sold by his executors Lit. Sect. 383. to have been distributed for his soule the executors had not sold it in time convenient or had taken the profits to their own use this had been a breach of the condition See more in the last foregoing division and in Obligation Numb 10. Covenant Numb 7. The same law is for the most part of conditions of obligations See Obligation Numb 10. Every particular estate hath a condition in law annexed to it and Co. 2. 15. 8. 44. super Lit. 233. 11. When a condition in law shall be said to be broken Or not therefore if tenant for life in dower by the courtesie or after possibility of issue extinct lessee for years tenant by statute merchant elegit or the like make any absolute or conditional estate of the lands they hold in fee simple fee tail or for life give livery of seisin thereupon Forfeiture or levy a fine Sur conusance de droit or suffer a recovery of the land or the like this is a breach of the condition in law and a forfeiture of their estate Also if any such tenant except tenant in taile after possibility of issue extinct doe wast in the lands they doe so hold this is a breach of the condition in law and a forfeiture of their estate in so much as the wast is committed But if an Infant Infant Womencovert or feme covert that hath such an estate shall make any such estate c. this is no breach of the condition in law And yet if such a person doe wast this is a breach of the condition in law And so also if any such person be an officer and doe any thing which is a cause of forfeiture in another this will be a forfeiture in him or her also If any keeper of a Parke without warrant kill any Deere fell Co. super Lit. 223. or cut any wood and convert it to his owne use pull downe the lodge or any house within the Parke used for hay for the Deere or the like this is a breach of the condition in law So also if a keeper shall not looke to the game but the Deere be killed by his default and damage come to the Lord by this also the condition is broken But the not attending upon such an office for two or three dayes if the Lord have no speciall losse thereby is no cause of forfeiture Offices that are for the Administration of Justice or of clark ship in any Court of Record or concerning the Kings treasure revenue Co. super Lit. 234. account alnage auditorship c. have also conditions in law annexed to them and therefore if such officers shall sell their offices or misdemeane themselves in their offices by this the condition in law may be broken and they may forfeit them As no man may create or annex a condition to an estate but he 12. Who may enter for a condition broken And what persons shall take advantage of a condition or a limitation And what not Lit. Sect. 347. Plow 175. Co. 3. 62. 347. 5. 56. Dier 131. Co. super Lit. 214 215. Doct. Stud. 93. Perk. Sect. 830 831. 833 835. Plow 488 489. that doth create the estate it selfe so neither can a man give or reserve the power title or benefit of reentry and avoidance of an estate upon the breach of a condition to any other but to him or them or at least to one of them that doth make the estate his or their heirs executors and administrators c. for it is a rule of the common law That none may take advantage of a condition but parties and privies in right and representation as heires executors c. of naturall persons and the successors of politique persons and that neither Privies nor Assignees in law as Lords by Escheate nor in deed as grantees of reversions nor Privies in estate as he to whom a remainder is limited shall take benefit of entry or reentry by force of a condition And therefore if a man had made a lease for life reserving rent on condition that if the rent be behind the lessor his heires and assignes shall reenter and after had granted the reversion to a stranger this grantee should not by the common law have had benefit by this condition But if the lessor had died his heire or the Gardian in Chivalry or Socage of such an heire if he had been an Infant and inward might have taken advantage by the condition And if one had been possessed of a lease for years and had granted his terme upon condition and had died his executors or administrators might have had advantage of this condition And at this day the law is still the same as touching Privies in Co. super Lit. 202. 12. blood for an heire shall take advantage of a condition though no estate descend to him from the Ancestor And therefore if one be seised of land of the part of his mother and he make a feoffement in fee of it on condition and die and the condition is broken in this case the heire of the part of the father shall enter but as soone as he hath entred the heire of the
part of the mother shall enter upon him and enjoy the land And if a man be seised of land in the right of his wife and he make a feoffement in fee of it upon condition and die the heire of the husband shall enter for the condition broken but the wife shall have the land And so also is the law as touching Privies in right and representation for Executors and Administrators shall take advantage of a condition now as heretofore And so also shall the Successors of a Deane and Chapter Bishop Arch-deacon Parson Prebend or any body Politique or corporate Ecclesiasticall or Temporall these shall take advantage of conditions as heretofore they did So also the law is the same as touching Privies in law for they shall no more take advantage of a condition now then heretofore But as touching grantees of reversions and Privies in estate there is some alteration made of the Law for by a new law it is provided That all persons which Sat. 32 H. 8. cap. 34. shall have any grant of the King of any reversion c. of any lands c. which pertained to Monasteries c. as also all other persons being grantees or assignees c. to or by any other person or persons and their heires executors successors and assignes shall have like advantage against the feoffees c. by entry for not payment of rent or for doing wast or for other forfeiture c. as the said lessors or grantors themselves ought or might have had And for the true understanding of the sense of this Statute Co. super Lit. 214. Plow 27. and the ancient Common law further touching this point 1. These diversities must be observed to be taken before the Statute which take place still 1. Between a condition that doth require a reentry and a limitation Co. 10. 36. F. N. B. 201. that doth ipso facto determine the estate without entry for albeit a stranger might not take advantage of the first yet he might take advantage of the last by the Common law And therefore if a man at this day make a lease to another quousque or untill I S come from Rome or if a man make a lease to a woman quamdiu casta vixerit or if a man make a lease to a widow si tamdiu in pura viduitate viveret or if a man make a lease to another for one hundred years if he live so long and then the lessor doth grant the reversion to a stranger in all these and such like cases the grantee of the reversion may take advantage of the limitation for after the estate is ended by the limitation he may enter 2. Between a condition annexed to a freehold and a condition Co. 3. 64 65. Co. super Lit. 214. 11 H. 7. 17. Plow 136. annexed to a lease for years for if before the Statute a man had made a gift in taile or lease for life on condition that if the donee or lessee did not pay tenne pound by such a day the gift or lease should be void or cease in this case the grantee of the reversion could not by the common law have taken advantage of the condition for it could not be void or cease but by entry which could not be transferred to another But if a lease for years had been made on such a condition a grantee of the reversion might by the common law have taken advantage of this condition for the estate in this case was by the breach of the condition ipso facto void without entrie But now the grantee of the reversion shall have advantage of the condition in both these cases 3. Between a condition in deed and a condition in law for by Co. super Lit. 214. the very common law not only the grantee of the reversion but also the Lord by Escheat may either of them have advantage of a condition in law for any breach in his owne time 2. These Resolutions and Judgements upon the Statute must be marked 1. That the Statute is generall and the grantee of the revesion Co. super Lit. 214. Co. 5. 13. of every coÌ„mon person as well as the King may take advantage of conditions 2. That the Statute doth extend to grants made to the successor of the King aswell as to the King albeit he only be named in the Statute 3. That he that comes to the reversion by fine feoffement grant limitation of use common recovery or bargaine and sale is such a grantee as is within the intendment of the Statute 4. That where the Statute doth speake of feoffees c. that it doth not extend to gifts in taile and therefore if a gift in taile be upon condition and after the donor doth grant the reversion this grantee shall never have any benefit of this condition 5. That where the Statute doth speake of grantees and assignees of the reversion that hereby an assignee of part of the state of the reversion may take advantage of the condition as if lessee for life be and the reversion is granted for life c. or if lessee for years be c. and the reversion is granted for years c. in these cases the grantees of the reversion shall have advantage of the conditions * Davy and Mathews case per. 2 Justiâ—es Trin. 1â— 1 Jac. B. R. So if a lessee for one hundred years make a lease for tenne years rendring rent with condition of reentry and the first lessee doth afterward grant his terme and estate to I S in this case I S is such a grantee and assignee of the reversion as shall take advantage of the condition 6. That as well mediate as immediate grantees i. the grantees of grantees in infinitum are intended within Co. 5. 112 113. Co. super Litt. 214. this Statute 7. That a grantee of part of the reversion cannot take advantage of a condition by this Statute And therefore is a lease be made of three acres reserving rent upon condition and the reversion is granted of two of the three acres in this case the Prerogative rent shall be apportioned but the condition is destroyed except it be in the Kings case And yet a condition may be apportioned ApportionmeÌ„t by the act of law or by the wrong of the lessee As if a lease be made of two acres the one of the nature of Burrough English and the other at the Common law upon condition and the lessor having issue two sonnes dieth in this case each of them shall enter for the condition broken And if the lessee upon condition make a feoffment of part of the land this doth not destroy the condition There is therefore herein a difference between a condition Power of revocation that is compulsory and a power of revocation that is voluntary for he that hath such a power may by his own act extinguish it in part by levying a fine of part of the land or
for quiet enjoying Co. 4. 80. the implyed covenant is gone Expressum facit cessare tacitum By a release of all covenants from the covenantee the covenant 18 E. 4. 8. Release is discharged so as the release be by deed for a covenant by deed cannot be discharged by word And therefore if A by deed covenant with B to build a house by a day and B doth wish him to let it alone this is no discharge of the covenant If the lessor accept the rent of the lessee or his assignee after Pasc 6. Car. B. R. Adjudg Bachelors case a covenant broken this doth not discharge the breach of the covenant but the lessor may sue for it notwithstanding And so we come to a Warranty being a speciall kind of covenant and therefore next in order to be spoken to CHAP. VIII Of a Warranty A Warranty is a covenant reall annexed to lands or tenements Finch ley 39. Co. super Lit. 365. 1. Warranty Quid. whereby a man and his heires are bound to warrant the same Or it is where a man is bound to warrant the land or hereditament that another hath And he that doth make this warranty is called the warrantor and he to whom it is made Warrantor Warrantee the warrantee There are two kind of warranties 1. A warranty in deed 2. Quotuplex Co. 1. 2. super Lit. 365. 4. 81. or an expresse warranty which is when the same is expressed i. when a fine or feoffement by deed is levied or made in fee or a lease for life is made by deed comprehending warranty or which hath an expresse clause of warranty contained in it as when a conusor feoffor or lessor doth covenant to warrant the land to the conusee feoffee or lessee whch is in these words Ego I S heredes mei warrantizabimus imperpetuum defendemus W S heredibus suis tenementa predicta contra omnes homines imperpetuum And by the Statute of Bigamis Dedi is made an expresse warranty during the life of feoffor 2. A warranty in law or an implied warranty which is when it is not expressed by the party but tacite made and implied by the law whereof see divers Examples infra The warranty in deed also is either lineall which Co. super 383 384. 370. 365. is thus described A covenant reall annexed to the land by him which either was owner or might have inherited the land and from whom his heire lineall or collaterall might by possibility have claimed the land as heire from him that made the warranty Or else it is collaterall which is thus described A warranty made by him that had no right or possibility of right to the land and is collaterall to the title of the land Also there is a warranty which doth commence by disseisin or wrong of all which â—ee divers examples afterwards And note that all these things here are to be applied to warranties of lands and concerning freeholds and inheritances for there is a warranty of goods and cattells in contracts of which we treat not here The fruit and effect of this warranty in deed is that it doth alwaies Co. super Lit. 265. 372. 365. 384. Co. 4. 121. 10. 97. conclude and barre the warrantor himselfe of the land so 3. The fruit and effect of it and what use may be made of it warranted for ever so that all his present and future rights that he hath or may have therein are hereby extinct And therefore if the father be dissâ—ised and the sonne in his life time release all his right to the land to the disseisor and make a warranty of the land in the deed and then the father dieth and the right of the land descendeth to the sonne in this case albeit the release doth not barre the sonne yet the warranty doth barre him And for the most part also it doth conclude and barre the heires of him that made the warranty to whom the same warranty doth descend to demand the same land against the warranty for if it be a lineall warranty it is a barre of an estate in fee simple without any Assets i. without any other land descended to him in fee simple from the same Ancestor that made the warranty And with assets it is a barre of an estate in taile And if it be a collaterall warranty it is with or without assets a barre of an estate in fee simple or â—ee taile and all possibility of right thereunto and yet so as it doth not passe any estate or right but only bind the right so long as the warranty is in force for if the warranty be avoided the right may be revived But neither the lineall or collaterall warranty can enlarge an estate And therefore if a lessor by deed release to his lessee for Co. super Lit. 389. c. life and warrant the land to him and his heires this doth not make his estate greater neither will it barre titles of entry or action in cases of Mortmaine consent to a Ravishor mortgage or dower And therefore if an Ancestor of the Lord hath title to enter upon an Alienation in Mortmaine and he release or make a feoffement with warranty this warranty will neither barre him nor his heire So if a collaterall Ancestor will make a warranty which doth after descend upon one that hath title of entry upon a condition broken this will not barre his entry c. neither will it barre any right that shall commence after the warranty made And the warranty that doth commence by disseisin doth not bind or barre any estate with or without Assets And in cases where the lineall or collaterall warranty is a barre Co. super Lit. 265. Co. 10. 98 99. Dier 42. Co. super Lit. 101. there if the party be impleaded by him or his heires that made the warranty the party impleaded that is tenant of the land may plead and shew forth this warranty against him and de mand Judgement whether he contrary to his owne warranty shall be suffered or received to demand the thing warranted and this in pleading is called a Rebutter And if he be impleaded or â—ued by another for Rebutâ—er Quid. the land then he to whom the warranty is made or his heires may vouch i. call in the warrantor or his heires to warrant the land Voucher Quid. And this is an interpleader in the nature of an action brought by the warrantor against the warrantee wherein he that doth vouch called the voucher is demandant and he that is vouched called Voucher Vouchee the vouchee is made tenant or defendant to the action and the vouchor is as it were out of the suite And this second tenant the vouchee is called the tenant by the warranty And hereupon shall Tenant by the warranty Quid. Summons ad warrantizandum Quid. issue forth to the Sheriffe a writ to summon the vouchee to appeare called a
of the descent of the warranty the estate of freehold or inheritance be displaced and devested And therefore if there be father and son and the sonne â—â—th a rent-service suit to a mill rent-charge rent-seck common of pasture or other profit apprender out of land of the father and the father maketh a feoffment in fee with warranty and dieth this shall not barre the sonne of the rent common c. And albeit the sonne after the feoffement with warranty and before the death of the father had been disseised and so being out of possession the warranty had descended upon him yet this warranty should not binde him So if my collaterall Auncestor release to my tenant for life with warranty and die and this warranty descend upon me this shall not binde my reversion or remainder But if in the case before the sonne be disseised of the rent c. and affirme himselfe to be disseised by the bringing of an Assise for otherwise he shall not be said to be out of possession of a rent or the like and after the father doth release with warranty and die in this case the collaterall warranty shall binde and barre the son of his rent c. And if in the last case my tenant for life be disseised and my Auncestor doth release to the disseisor with warranty and die this is a good warranty to barre and bind me 8. That Litt. Sect. 734. the warranty doe take effect in the life time of the Auncestor and thâ—t he be bound by it for the heire shall never be bound by an expresse warranty but where the Auncestor was bound by the same warranty and therefore a warranty made by Will is void 9. That the heire claim in the same right that the Auncestor doth Co. super Litt. 370. for if one bee a successor onely in case of a corporation hee shall not be bound by the warranty of a naturall Auncestor 10. That Litt. Sect. 726. Co. 1. 67. 140. super Litt. 380. the heire that is to be barred by the warranty be of full age at the time of the fall of the warranty for if my Auncestor make a feoffment or a release with warranty and at this time I am within age and after he die and the warranty descend upon mee within age this warranty shall not bind me but if I become of age after the warranty of my Auncestor and before his death in this case the warranty may barre mee And in the first case it will barre me also whiles it is in â—orce but I may by my entry avoid it And the same Law is of a woman covert And yet if the entry of an infant or a woman covert be not lawful when the warrantie doth descend in this case the warrantie shall binde them as well as any other for such a warrantie cannot be avoided but by entrie and avoiding the estate And where the husband is within age at the time of the descent of a warranty to his wife and the entrie of the wife is taken away there the warranty shall bind the wife If lands be given to A for life and after to the next heir male Co. 1. 66. 44 Ed. 3. 30. 44 Ass pl. 35 of A and the heires males of the body of that heire male and A having issue B makes a feoffment of the land with warrantie to I S this is a good warrantie and a barre to the issue for a man may be barred of his right by a warrantie which hee could never avoid as where lessee for life is disseised and a collaterall Auncestor of the lessor doth release to the disseisor with warrantie and die and this doth descend upon the lessor by this he is barred A warrantie made for life or in taile is good and shall binde Litt. Sect. 738 Co. super Litt. 387. for so long onely as if tenant in taile of land let it for life the remainder to another in fee and a collaterall Auncestor doth confirme the estate of the tenant for life and die and the tenant in taile hath issue this is a barre to the issue during the life of the tenant for life And in this case upon a voucher the recovery in value shall be put for life onely If one make a gift in taile and grant to warrant the land given Co. 10. 96. according to the gift this warrantie is good no longer then the estate doth last And no warrantie that a donor can make in this case can bar him of the land if the donee die without issue and the estate determine And where a warranty doth bar it is entire and doth extend to Co. 8. 52. super Litt. 373. all the land and to all persons upon whom it doth descend and is a barre of all the right that every one of them hath in the land so that if they have all right jointly or severally or one onely hath all the right and the rest none he that hath the right is barred And therefore if lands be given to A and the heirs of his body and for want of such issue to E his sister and the heirs of her body and A doth make a feoffment with warrantie and die without issue having two sisters E and S this is a bar to E for the whole albeit the warranty descend on her and another If there be tenant for life the remainder to his sonne and heire Co. 5. 79. apparant in taile and the father doth a feoffement in fee with warrantie and dieth in this case this is a good warrantie and will bar the son albeit it be made of purpose to bar him But if by agreement and covin between him and A and B he make a lease to A who makes a feoffment in fee to B to whom the father doth release with warrantie thinking by a collaterall warrantie to bar his son this is no bar for this warrantie began by disseisin And if in the first case the son doth enter in the life time of the father upon the land he doth avoid the warrantie If the father bee tenant for life the remainder to the next heire Co. 1. 66. male of the father and to the heires males of the body of such next heire male and the father makes a feoffment to I S with warrantie and dieth it seems this warrantie is a good bar to the heir and in this case the heir cannot enter in the life time of his father for he cannot be heire male unto his father untill his fathers death If tenant for life make a feoffement with warrantie or be disseised Co. super Litt. 366. 365. Co. 1. 67. Stat. Glouâ— ch 〈◊〉 6. Litt. Sect. 724 725. and release with warrantie and he in reversion being heir to the tenant for life doth not enter but suffer the lessee for life to die and thereby the warrantie to fall and descend upon him in this case this warrantie generally is a bar without any
Sect. 719. be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the donee doth make a feoffment with warrantie and hath issue a sonne and a daughter and dieth this warrantie is lineall to the sonne and if the sonne die without issue male it is a lineall warrantie from the father to the daughter But if the brother in his life time release to the discontinuee c. with warrantie c. and after dieth without issue this is a collaterall warranty to the daughter Litt. Sect. 714. If lands bee given to the husband and wife and the heires of their two bodies engendred and they have issue and the husband discontinue and die and after the wife doth release with warrantie and die this is a lineall warrantie And if lands be given to a Co. super Litt. 375. man and a woman unmaried and the heirs of their two bodies and they intermary and are disseised and the husband doth release with warrantie and dieth and after the wife dieth this is a lineall warrantie to the issue for all the land And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue and the middle brother doth release with warrantie and die without issue and after the father dieth and after the elder brother dieth without issue and after the father dieth and after the elder brother dieth without issue so that the warrantie doth descend to the younger brother this is a â—neall warrantie to him And if a father give land to his eldest son and the heirs males of his body c. the remainder to the second sonne c. if the eldest son alien in fee with warrantie c. and hath issue female and dieth without issue male this is a lineall warrantie to the second sonne And in all these cases of a lineall warrantie if Litt. Sect. 711 712. Doct. St. 152 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple it is a barre without any assets for the rule is That as to him that demandeth fee simple by any of his Auncestors he shall bee barred and bound by a lineall warrantie that doth descend upon him unlesse hee bee restrained by some Statute But it doth not binde the right of an estate in fee taile without assets for in that case the rule is That as to him that demandeth fee taile by writ of Formedon in the Descendor he shal not bee barred by a lineall warrantie unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie and then it is a barre for so much onely as doth descend to him no more And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die in this case the issue of that issue is not barred by this warrantie and assets But if the issue to whom the warrantie doth descend bring his writ of Formedon and is barred by judgement by reason of the warrantie and assets in this case albeit he alien the assets afterwards yet the estate taile is barred for ever If tenant for life do alien in fee with warrantie or be disseised Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty And how such a warranty shall bar release to the disseisor with warrantie and die and the warrantie descend on him in reversion or remainder this is a collaterall warrantie So if the lessee for life be disseised and a collaterall Auncestor of him in reversion release with warrantie and die and the warrantie descend on him in reversion this is a collaterall warrantie for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. St. 152. land And if a man seised of lands in fee have issue two sonnes and the father dieth and the younger sonne doth enter and doth alien the land with warrantie and die without issue this is now a collaterall warrantie that is descended on the elder brother And if a sonne bee disseised of his own land and bring an 21 H. 7. 10. Assise and after the father doth release to the disseâ—sor with warranty and dieth this warrantie that doth descend to the sonne is a collaterall warrantie And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne and after he doth make a feoffment wich warrantie and die before the entrie of his sonne so that the warrantie doth descend this is a collaterall warrantie If there bee Litt. Sect. 707. father and two sonnes and the father is disseised and the younger sonne doth release wiâ—h warrantie to the disseisor and die without issue and then the father dieth in this case the warrantie now descended is a collaterall warrantie If a lease be made Co. super Litt. 388. for life to the father the remainder to his next heir and the father is disseised and doth release with warrantie and dieth this is a collaterall warrantie to the heire And if the husband discontinue the right of his wife and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die and after the husband dieth this is a collaterall warranty and a bar to her And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow 234. Kelw. 78. writ of Formedon if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty this is a collaterall warranty as if tenant in taile discontinue the taile and die having issue and the uncle of the issue doth release with warranty to the discontinuee and die without issue so that the warranty doth descend on the issue in taile this is a collaterall warranty So if such a discontinuee make a feoffment in fee or be disseised and the uncle release with warranty to the disseisor or feoffee and die without issue and the warranty doth descend on the issue this is a collaterall warranty If a tenant in taile have Litt. Sect. 708. three sons and discontinue the tail in fee and the middle brother doth release to the discontinuee with warranty and after the tenant in taile dieth this is a collaterall warranty to the elder brother If one have issue three sonnes and giveth land to the eldest Litt. Sect. 716. and the heirs of his body and for want of such issue to the middle and the heirs of his body the remainder to the third and the heires of his body and the eldest doth discontinue the
warrant it in the same manner and plight as it was in the hands of the feoffor and hee shall vouch as of lands discharged And therefore if grantee of a rent grant it to the tenant of the land on condition and the tenant doth make a feoffment of the land with warranty in this case the warranty shall not extend to the rent albeit the feoffment be made of the land discharged of the rent And if a woman have a rent-charge in fee and she doth intermary with the tenant of the land and a stranger doth release to the tenant of the land with warranty this warranty shall not extend to barre any action to be brought after the death of the wife for the rent But if in this case the tenant make a feoffment in fee with warranty and dieth the feoffee in a cui in vita brought by the wife shall vouch as of lands discharged at the time of the warranty made So if tenant in taile of a rent-charge purchase the land and make a feoffment with warranty and the issue bring a Formedon of the rent the tenant shall not vouch c. All those that are parties to the warranty i. such as are named Co. super Litt. 365. 5. 17. 12. Who may take advantage of a warranty And how And against whom it may bee taken Assignes in the deed regularly shall take advantage of the warranty as if one doth warrant land to another his heires and assignes in this case both the heirs the assigns may take advantage of it and they both may vouch or â—ebut or have a warrantia cartae so as they come in in privity of estate for otherwise the heire or assignes cannot vouch or have a Warrantia Cartae and yet he may rebut notwithstanding in divers cases But those that are are not named for the most part shall not take advantage of the warranty and therefore if land be warranted to I S and not to him and his heirs or to him and his assigns or to him his heires and assigns in these cases neither the heire nor the assignee may vouch or have a Warrantia Cartae and yet in some cases where it is so the assignee or tenant of the land may rebut The warranty annexed to an Exchange a Partition by Dedi Co. super Litt. 384. and by homage Auncestrell doth alwayes goe in Privity and therefore an assignee in these cases can take no advantage of it And yet in the cases of Exchange and Dedi an assignee may rebut But the assignee of a lessee for life may take advantage of the warranty in Law annexed to his estate If one grant to warrant land to another his heirs and assigns in Co. 5. 17. super Litt. 384 385. this case the heirs or assignes heire of the assignee or assignee of the heirs of the feoffee or assignees of assignees in infinitum shall take advantage of the warranty And therefore if one infeoffe I S to have and to hold to him his heires and assignes and warrant the land to him his heires and assignes and A doth infeoffe B and his heires and B dieth in this case the heire of B shall vouch as assignee to A. And if one infeoffe A and B Habendum to them and their heires and warrant the land to them their heirs and assignes and A die and B doth survive and die and his heire infeoffe C in this case C shall take advantage of this warranty as assignee If one infeoffe A with warranty to him his heirs and assignes and A doth infeoffe B and B doth reinfeoffe A in this case neither A or his assignes shall ever take any advantage of this warranty And yet if B infeoffe the heire of A he may take advantage of the warranty If one make a feoffment by deed with warranty to the feoffee his heirs and assignes and the feoffee doth make a feoffment over to another by word without deed in this case the second feoffee shall have all the advantage of this warranty for an assignee by word shall have the same advantage that an assignee by deed shall have If a feoffment be made with warranty to a man and his heirs and assignes and he make a gift in tail the remainder in fee and the donee make a feoffement in fee this feoffee shall not vouch as assignee but he must vouch his donor upon the warranty in Law and yet he may rebut If lands be given to two brethren in fee simple with warranty to the eldest and his heirs and the eldest die without issue in this case albeit the other brother be his heire yet he shall have no advantage at all by the warranty because he comes in above the warranty But generally all that claime under the warranty shall take advantage thereof by way of rebutter albeit they can take no other advantage by it If one make a feoffment to two their heirs and assigns and one of them doth make a feoffment in fee this feoffee in this case shall not take advantage as assignee An assignee of part of the land shall take advantage of a warranty Co. super Litt. 385. as if a man make a feoffment of two acres with warranty to him his heirs and assigns and the feoffee doth make a feoffment of one acre of it to another in this case the second feoffee shall take advantage of the warranty as assignee And therefore herein there is a difference between the whole estate in part and part of the estate in the whole or in any part for if a man have a warranty to him his heirs and assigns and he make a lease for life or gift in tail in these cases the lessee or donee shall not take advantage of the warranty as assignes but they may vouch the lessor or donor upon the warranty in Law But if a lease for life bee made the remainder Co. super Litt. 384. in fee such a lessee may vouch as assignee upon the first warranty If the father have a feoffment made to him and his heirs with warranty and he make a feoffment to his son and heire with warranty in this case the son may take advantage of the first warranty after his fathers death If a man infeoffe a woman with warranty Co. super Litt. 390. and they intermary and are impleaded and upon the default of the husband the wife is received in this case she may vouch her husband Et sic è converso If a woman infeoffe a man with warranty and they intermary and are impleaded the husband in this case shall vouch himself and the wife He that comes into the land meerly by act of Law in the post as 26 H. 8. 3. 22 Ass pl. 37. 29 Ass 34. Co. 3. 62 63. the Lord by Escheat or the like shall never take advantage of a warranty and therefore if tenant in dower infeoffe a villain with warranty and the Lord of the villaine enter or
seisin and therefore it is no good lease untill livery of seisin be made but it is a good beginning of a lease If the father infeoffe his sonne of land and the sonne suffer Perk. Sect. 216. his father to enjoy it and after the sonne doth come to the Parish Church where the land doth lie and there in the audience of the parishioners useth these words to his father Father you have given me such and such lands and doth name them as freely as you gave them to me I give them to you againe this is no good livery of seisin neither doth any estate passe hereby So if one being upon his Hil. 37 Eliz. B. R. Callards case land say to I S I S stand forth I doe here reserving an estate to me for mine owne life give this land to thee and thy heires for ever this is no good livery of seisin neither doth any estate passe thereby So if one make a charter of feoffment to me and make no livery of seisin thereupon and after I make a feoffment of the land Fitz. Fait feoffments to I S and the feoffor hearing and having notice of it saith I doe willingly agree to it and am contented that I S shall have it or I doe agree to the feoffment or the like in this case this doth not make the feoffment that was made to me good If divers parcells of land be conveyed and livery of seisin is made Co. super Lit. 48. Fitz. Estoppell 177. in one or there be divers feoffees and livery of seisin is made to one of them according to the deed without using any more words this is good But the best forme and order of making of livery in this case is to adde these words in the name of all the rest c. If the feoffor donor c. deliver the deed in sight or view of Co. 9. 137. 6. 26. super Lit. 48. 253. the land and use these or any such like words I will that you Livery in law or within the view shall enter into the land and have it according to the deed Or take and enjoy the land according to the deed Or I deliver you this deed in the name of seisin Or enter you into the land and take seisin of it Or take the land and God give you joy of it Or if the estate be made without deed I give you yonder land to you and your heires and goe enter into the same and take possession thereof accordingly Or enter into the land and enjoy it in fee simple to you and your heires or for your life c. in all these cases the estate and the livery is good albeit the feoffor c. stand in one county and the land in view be in another county But in all these cases of livery within the view 1. It must 1 New terms of the Law Co. super Lit. 48. Dier 18. 2 18 H. 6. 16. be made by the person himselfe that doth make the estate for it cannot be made by his atturny 2. There must be a relation to to the land for if the feoflor doe deliver the deed only to the feoffee in sight of the land this is not a good livery within the view 3. The parties must stand within view of the land for if the feoffor c. being out of the sight of the land say to the feoffee 3 Co. super Lit. 48. c. Goe and enter and take seisin of the land and God send you joy of it this is no good livery of seisin 4. There must be some body capable of a freehold to take by the livery for if it be made to a lessee for years the remainder to the right heires of I S and I S is then living it is void 5. The feoffee c. must enter presently 5 Co. 1. 156. Perk. Sect. 214. Fitz. faits feoffments 47. for if either the feoffor donor c. or feoffee donee c. die before entry the livery cannot be made good And yet if the party dare not enter for feare in this case if he claime it only and doe not enter it is sufficient Livery of seisin in deed may be made or taken by the deputies or 10. Where livery of seisin made or taken by an atturny shall be good And where not And what warrant is sufficient Co. super Lit. 52. Celw 51. Co. 9. 76. terms of the law tit Livery atturnyes of the parties and this livery by them is as good as that livery of seisin which is made by the parties themselves and that also as it seemes albeit the parties themselves be upon the land at the time of the making thereof if they doe not contradict it But in the making of this livery care must be had 1. That there be a deed of feoffment for otherwise a letter of atturny to deliver possession availeth nothing 2. That there be a good authority in writing which may be either in the deed of feoffment it selfe * The opinion therefore in Co. super Lit. 52. 6. as to this point is held not to be law whether it be Poll or Indented and that albeit the atturny be not party to it or else by a single deed besides the feoffment c. 3. That the atturny doe pursue his authority at least in the substance and effect of it 4. That the atturny doe it in the name of the feoffor donor c. who doth give the authority 5. That it be done in the life time of the parties But a livery in law may not be made by an atturny And therefore if a letter of atturny be to deliver seisin generally and the atturny by virtue thereof deliver seisin in view this livery of seisin is void If an Infant or woman covert make a feoffment and letter of atturny Bro. Feoffments 25. Ass pl. 4. Perk. Sect. 23. Infant Woman covert to make livery and the atturny doe so this is void for they are not able to give such an authority And if a man whiles he is of sound memory make a feoffment with a letter of atturny to give livery and after he become paralytique and so dumbe but by signes he doth declare himselfe to be willing to have livery of seisin made and it is made this is a good livery of seisin But if a letter of atturny be made to deliver seisin of certain land by one that is de non De non sane memoris sane memorie and the deed of feoffment was made whiles he was of sound memory and afterwards he doth come to his memory again and then the livery is made upon the first warrant without any new assent c. in this case the livery is not good That for the most part which for the manner and order of making it is a good livery of seisin if it be made taken by the parties Dier 283. themselves is good
the like are grantable over in fee simple for life or years and therefore rents or services reserved upon any estate and rents granted out of lands are grantable over in infinitum And if a man have a rent reserved on a particular estate he may grant over parcell of it But a rent or Service suspended cannot be granted Neither can a man grant a rent issuing out of a rent If a rent be granted to me I may grant it over to a stranger before I be seised of it and this grant is void But an Annuity it seemes is not grantable over after the first creation of it And yet if an Annuity be granted to I S and his assignes pro consilio it seemes this Annuity is grantable over Advowsons are grantable in fee simple for life Stat. 32. H. 8 cap. 7. Perk. Sect. 90. Advowsons c. or years from man to man in infinitum Also the presentation to a Church before the Church is void is grantable but when the Church is void that Turne is not grantable for it is then in the nature of a thing in action Also Rectories and tithes and portions of tithes and pensions are grantable from man to man in infinitum Reversions and Remainders are grantable from man to man in fee Perk. Sect. 73. 88. 87. simple fee tail for life or years And if I have a tenant for life of three Reversions and Remainders houses I may grant the reversion of two of them And if I have the reversion of three houses four acres of land I may grant the reversion of two houses of two acres of land And if tenant in taile be of an acre of land the remainder to his right heires he may grant over this remainder by it selfe and yet it is such a thing as the tenant in taile himselfe may barre by a common recovery But if a grant be of land to I S for years the remainder to the right heires I D I D is living this remainder is not grantable so long as I D doth live Commons of pasture of turbary of fishing of estovers are grantable Perk. Sect. 103. Common in fee for life or years from man to man in infinitum * Per 2. Judges against one Hil. 16 Jac. B. R. And yet if a common in grosse and without number be granted to a man and his heires it seemes this is not grantable over to another man But if common for a certaine number of beasts be so granted it seemes the law is otherwise and that this is grantable over in case where the first grant is to the grantee only and not the grantee and his assignes Offices are grantable at first but the great Judiciall offices of Offices Perk. Sect. 101. the kingdome as the offices of the Lord Keeper Chiefe Justices or Chiefe Baron or of other of the Justices or Barons and such like are not grantable over to others neither may they be executed by deputies But the Sheriffes office albeit it be not grantable over yet may it be executed by deputy * Per Lord Keeper 2. Chiefe Just M. 5 Car. in cancellaria The reversion of an office is Prerogative not grantable by a Subject as it is by the King yet a Subject may grant an office Habendum after the death of the present officer and this is good †Co. super Lit. 233. Perk. Sect. 101. The inferior offices also that are offices of trust especially if they concern the person of the grantor howsoever they are grantable at first yet are they not grantable over by the officer to any other unlesse they be granted to them and their assignes and of this sort are the offices of Steward Bailife Receiver Sewer Chamberlaine Carver and the like neither may these be executed by deputy but where the grant is so Licences and authorities are grantable at first for the lives of the Licences Authorities c. 12 E. 7. 25. 13 H 7. 13. parties or for years But the grantees of them cannot assigne them over And therefore if power be given to me to make an award or livery of seisin I may not grant over this power to another And if licence be granted me to walke in another mans garden or to goe through another mans ground I may not give or grant this to another A bare possibility of an interest which is incertaine is not grantable Co. 4. 66. 5. 24. Dier 244. Co 10. 51. And therefore if one have a terme of years in land and by Possibilities his will devise it to I S for his life and afterwards to me for the residue of the yeares or devise it to I S if he live so long as the terme shall last and if he die before the terme end the remainder to me in these cases so long as I S doth live I cannot grant over this possibility So if a lease be made to me and my wife for life the remainder to the survivour of us I may not grant this remainder over to another man But such a possibility being coupled with some present interest is grantable over And therefore if A have foure houses in execution upon a Statute and by course of time it will endure thirteene years and after two of the houses are evicted by Elegit for fifteen years in this case he that hath this execution upon the Statute may assigne over his interest in these two houses for after the execution by the Elegit is satisfied A shall have the two houses againe untill he be satisfied The Lord cannot grant the Perk. Sect. 90. wardship of the heire of his tenant whiles the tenant is living Those things that are inseparably incident to others are not 1 E. 4. 10 grantable without the thing to which they are so incident and belonging Incidents And therefore a Court Baron which is evermore incident Perk. Sect. 104. 5 H. 7. 7. to a Manor is not grantable without the Manor it selfe common appendant to land is not grantable without the land it self to which it doth belong and common of estovers appendant to a house is not grantable without the house it selfe to which it doth belong A rent service or other thing whiles it is wholly in suspense is Suspended things not grantable And therefore if the Lord disseise the tenant or 16 H. 7. 4. Co. super Lit. 314. Bro. Grant 173. Perk. Sect. 88 89. the tenant enfeoffe the Lord upon condition the Lord cannot grant over the Seigniory during this suspension But if one have a rent in fee out of my land and he purchase the same land for life or years in this case it seemes the rent is grantable even whiles the estate of the land doth continue So if the tenant make a lease for yeares or life of the tenancy to the Lord in this case the Lord may grant the Seigniory notwithstanding And yet
if the tenant make a lease to another man for life and the Lord grant the Seigniory to this tenant for life in fee in this case it seemes the grantee of the seigniory cannot grant it over because it was never in esse Franchises as views of Frank pledge Perquisites of Courts Leets Conusance of Pleas Faires Markets goods of felons waifes estrayes Franchises Hundreds Ferries or Passages Warrens and the like are grantable over from man to man in fee for life or years in infinitum Things in action and things of that nature as causes of suit Co. 5. 24. 10. 48. Co. super Lit. 214. Dier 244. Perk. Sect. 86 87. 85 Bro. Done 27. 24. 48. Co. 6 50. Things in action rights and titles of entry are not grantable over to strangers but in speciall cases And therefore if a man have disseised me of my land or taken away my goods I may not grant over this land or these goods untill I have seisin of them againe Neither can I grant the Suit which the law doth give to me for my reliefe in the cases to another man So if I make a feoffment to another man on condition that if I doe such a thing I shall have the land againe in this case I may not before or after the time of performance of the condition grant over the condition to another But all these things I may release to the parties themselves for it is a maxime in law that every right title or interest in presenti or in futuro by the joint act of all them that may claime any such right title or interest may be barred or extinguished And in some cases a grantee of a reversion may take advantage of a condition annexed to an estate for See condition Co. super 232. Perk. Sect. 86. life or years If a man owe me money on an obligation or the like I cannot grant this debt to another but I may grant a letter of atturney to another man to sue for it and receive it or I may grant the writing it selfe to another and he may cancell it or give it to the obligor * Dier 283. A presentation to a Church after the Church is become void is not grantable for it is in the nature of a thing in action †Perk. Sect. 92. Fitz. Done 3. 7. And if a man take my goods from me or from another man in whose hands they are or I buy goods of another man and suffer them in his possession and a stranger taketh them from him it seemes in these cases I may give the goods to the trespassor because the property of them is still in me Trusts and confidences which are personall things for the most Personall things part are not grantable over to others And hence it is also that offices Perk. Sect. 99. Plow 379. of trust confidence are not grantable over but in some speciall cases where they are granted to a man and his assignes or where they are granted to a man and his heires And hence it is also that a Wardship by reason of a terme in socage which by the law is Plow 293. given to the next of kin is not grantable over to any other person by the Gardian in Socage Some things are so entire that they cannot be severed by grant Entire things Fitz. Grant 19. 76. And therefore if a man hold three acres of land of me by twelve pence rent and I grant the services of the third acre this is void and he shall have all or none for I cannot sever the tenure But if a man hold land of me by homage fealty escuage and a certain rent in this case I may grant the rent and keep the Seigniory A villaine is grantable for life or years and if the villaine during the estate of the grantee purchase land in fee the grantee shall have Villaines Perk. Sect. 94. it for ever as a Perquisite albeit he have but an estate for life in the villaine it selfe All chattells reall and personall regularly are grantable from man Chattells reall and personall to man in infinitum as leases for years be they present or future Dier 58. Plow 142. 147. Perk. Sect. 91. Dier 305. Perk. Sect. 90. wardships of tenants in Capite or by Knights service trees oxen horses plate housholdstuffe and the like Also trees grasse and corne growing and standing upon the ground fruit upon the trees wooll upon the sheeps backe is grantable If a man sell me ten load of wood in his wood to be taken by his Distresse assignment or sell me three acres of wood towards the north side of Co. 5. 24. the wood by this grant in these words I have such an interest as is grantable over If I make a lease by deed of a house to another and Fitz. Barre 280. therein it is agreed between us that if the rent be not paid me by such a time I shall enter into the house and take and sell the goods there as mine own to pay the rent it seems this is a good grant of the goods and that I may doe according to the agreement And if one that doth hold land of me grant to me by deed indented that I shal distraine for my service in all his land this is a good grant Fitz. Grant 6. A man may give or grant mony as if I deliver one mony on condition Money that if he assure me of such land he shall have it otherwise that Fitz. Done 11. he shall redeliver it to me again in this case if he make the assurance he shall have the mony if not I may have an accompt for it Such things as are ferae naturae as Conies Hares Deere and such Ferae natur◠Bro. Done 34. like are not grantable at all A Parson of a Church may grant his tithes for years and yet they Tithes Perk. Sect. 90. are not in him A man may give or grant his deeds i. the parchment paper wax Deeds to another at his pleasure and the grantee may keep or cancell them Co. super Lit. 232. Trin. 38 El. B. R. 25 H. 8. 5. 1 H. 7. Doves case And therefore if a man have an obligation he may give or grant it away and so sever the debt and it So tenant in fee simple may give or grant away the deeds of his land and the executor in the first case and the heire in the last case hath no remedy But a tenant in tail of land cannot give or grant any of the deeds belonging to the land intailed no more then the land it selfe One may give or grant Apparell apparell and it is said if one make apparell for another and put it 1 H. 4. 31. Fitz. Barre 179. upon him to use weare this is a gift or grant of the apparel it self If one grant to another all the
is good notwithstanding But if the grant be thus omnia illa terras c. in tenura I S jacen in W nuper prioratui de S spectan and in truth the land doth lie in S and not in W this is no good grant to passe the lands in S. And if the lands doe lie in W but are in the tenure of I D and not in the tenure of I S the grant is void to passe the lands in the occupation of I S. If one purchase land of I S in T and have no other land there Dier 376. Bro. Grant 92. and he grant his land in T late the land of R S or late the land of S and mistake or omit the christian name this grant is good notwithstanding this mistake And so also it is where there is a blanke left for the christian name And if in this case he grant all his land in T and say no more this is a good grant to passe the land And if one grant all his lands in D called N which were the lands of I S this is a good grant to passe the lands called N though they were never the lands of I S. But if the grant be of all his lands in D which were the lands of I S by this none but those lands that were the lands of I S will passe If one grant in this manner all my meadow in D containing Dier 80. tenne acres whereas in truth his meadow there doth containe twenty acres it seemes this is a good grant for the whole twenty acres So if one grant thus All those forty seven acres of land by the Sleight whereof fifteen lie in D twenty in E and twenty five in F and in truth all of them doe lie in F and none of them in D or E this is a good grant to cary the whole forty seven acres If one grant twenty load of wood and say in his grant of which Bro. Grant 69. twenty load of wood he had sixteene load by the grant of his father I S and in truth I S did not grant any wood to him at all or did not grant unto him sixteene load only this is a good grant of the twenty load of wood notwithstanding this false recitall If one grant his Manor of D and doth not say in what towne or Bro. Grant 53. 7 H. 4. 41. townes it doth lie this is a good grant But it is best to say in what townes the Manor doth lie for if it lie in divers places as it may and any of the places into which it goeth be omitted and the rest are set downe no part of the Manor lying in the towne that is not expressed will passe If one grant a Manor and that which in truth is but one Manor Co. 1. 46. by the name of the Manor of A and B this is a good grant of the Manor And so also it is if it be two Manors as if a man be seised of the Manors of Ryton and Condor in the county of Salop and he grant in this manner totum illud Manerium de Ryton Condor cum pertinen in Com. Salopiae this is a good grant of both the Manors Otherwise it is in case of the King Prerogative If one have a farme of land meadow c. by lease called Curia Co. B. Pasc 9 Jac. Inter Plat. Sleepe Bro. Grant 53. Hodges lying within the parishes of S. Stephen and S. Peter in S. Albons and he reciting the said lease grant to C his terme and interest in the house lands c. called Hodges in the parish of S. Peter and S. Albons this grant is good only for so much as doth lie in the parish of S. Peter and not for that which doth lie in S. Stephens But if he grant the farme and doth not say in what parish it doth lie this is a good grant of the whole farme As in the case before of a Manor that doth lie in divers parishes And if in the case here the farme lie within the parish of S. Peter only the grant is good for the whole farme If one recite that whereas he hath such lands by forfeiture or whereas such a one hath an estate of his land or whereas the grantee hath paid him tenne pound or done him such service or the like and these things are not true and afterwards he doth grant the land by apt words this mistake in these cases will not hurt the grant But otherwise it is in case of the King in some of these cases Prerogative If one have a Manor in which he hath Parkes and Fishponds and he grant the Manor for life except the game and fish and after Co. 11. 50. grant the reversion of the Manor this is a good grant of the game and fish also If a grant be of Centum libratas terrae or 50 libratas terrae or Co. super Lit. 5. of Centum solidat terre it seemes these are good grants and that hereby doth passe land of that value and so of more or lesse If a grant be of an acre of land covered with water this is a Co. super Lit. 4. good grant If a grant be of a certaine portion of land or tithes or of the Dier 84. 34 E. 3. fourth part of land or tithes and there be a sufficient certainty in the description of it this grant is good And therefore if the grant be of the fourth part of the tithes and of the offerings of the Church of S. Peter this is a good grant If one seised of an Advowson in fee grant to I S that as oft as Bro. Grant 101. 121. the Church is void he shall name the Clarke to the grantor and he shall present him to the Ordinary this is a good grant of the Advowson A reversion may be granted by the name of a remainder or a Dier 46. Plow in Hil. Granges case remainder by the name of a reversion and such a grant is good As if one grant land to I S the reversion to I D this is a good grant of the remainder If one make a lease of land to husband and wife for their lives Fitz. Grant 63. and after grant the reversion of this by the name of the reversion of the land which the wife doth hold for life this grant is void So if one grant to two for life and after grant the reversion of one of them this is void A Fulling or grist mill may be granted by the name of a mill only 21 Ass pl. 23 If one grant in this manner All that his mesuage c. And all Inceâ—ainty the lands meadowes and pastures thereunto belonging this is 27 H. 6. 2. Plow 164. Bro. Lease 55. a good grant and certaine enough to passe all the lands meadowes and pastures usually occupied therewith If the Lord grant his Manor by the name of his Manor
1. 44. Plow 524. lands or tenements may by deed or writing in the country or without writing by word of mouth make a lease of it for what lives or years he will And hee that is seised of an estate in tail of any lands or tenements may make any lease out of it for his owne life but not longer unlesse it be by fine or recovery or it be such a lease as is warranted by the Statute of 32. H. 8. whereof see more infra And he that is seised of lands or tenements of any estate for his own or anothers life may make what lease for years he will of it and it will be good as long as the lease for life doth last And hee that is possessed of lands or tenements for years may make a lease of it for all or part of the years and these are good leases The tenant for life or years may also assigne over all their estates if they please And if such tenants make leases for longer time as if lessee for years make a lease for life it seemes by this the land will passe for life if the term of years last so long But if he give livery of seisin upon it as he must to make the lease for life good this is a forfeiture of the estate for years Forfeiture Infant If an infant be seised of land in see simple and he make a lease 9 H. 7. 24. 18 Ed. 4. 2. Plow 545. for years of it rendring no rent this lease is void But if there be a rent reserved upon the lease then the lease is but voidable and may by the acceptante of the rent by the infant after his full age bee Acceptance made good Jointenants tenants in common and parcenours may make leases Litt. cap. tenant in common F. N. B. 62. G. Iointenants Tenants in common for life or years of their own parts and purparties at their pleasures and these leases will binde their companions And one coparcenour or tenant in common may make a lease of his part to his companion if he will If a feoffment be made upon condition and before the time of performance of the condition the feoffor and feoffee doe joyne to make a lease for life or years of the land this is a good lease A man that hath an estate in land to him and his wife and his Bro. Leases 58. heirs may make what lease he will of the land and this will be good against all men but his wife onely and that for her time If there be lessor in fee and lessee for ten years in this case they Co. 10. 49. two may joyn together and make a lease for lives or for any terme of years and this is good A disseisee cannot make a lease of that land whereof he is disseised Plow 133. untill he make his entry or recover the possession of the land again So neither can a woman that hath recovered the third part Bro. Scire facias 36. of her husbands land in a writ of dower make any lease of it before she be in possession by execution And yet if a lease be made Co. super Lit. 46. to me for years I may make a lease of part or an assignement of all the term before I have made my entry into the land demised So if the father die and the son make a lease to a stranger of the land Plow 137. 142. descended to him before his entry this is a good lease but if a stranger had entred and abated into the land and then the sonne had made the lease contra In some cases also such persons as are not seised in see simple c. Co. 5. 5. Dier 357. Co. 62. 8. 70. 1. 175. See in Leases made by tenant in tail infra nor able to derive such estates for life or years out of their owne estates By speciall power or proviso to make leases may lawfully notwithstanding make such leases for life c. And this is sometimes by some speciall Act of Parliament enabling them so to doe And hence it is also that a tenant in tail may make leases for three lives or twenty one years And sometimes it is by some speciall power or authority that is given or reserved by and to the party himself that had the see simple in him or given to some other to doe it in his name and leases thus made may bee good And therefore if any Act of Parliament enable a tenant in tail or a tenant for life to make leases for three lives or twenty one years leases that are so made in pursuit of that authority are good And if a man be seised of land in fee and convey it to the use of himself for life or in tail with divers remainders over with a proviso that it shall be lawfull for him or any such tenant in tail to make leases for twenty one years in this case he or they may make such leases and they will be good But in both these cases care must be had to pursue the authority strictly i. that the leases made be according to the power and direction given by the statute or proviso for if it differ and vary ever so little from the sense and meaning of the same the lease will not be good And therefore in the case before of a power to make leases for twenty one years if the party make more leases for twenty one yeares at one time then one they are all void but the first because it is against the intent of the parties though it be not against the words And so if the power be to make leases for three lives he cannot by this make a lease for ninety nine yeares if three lives so long live But if the power be thus Provided c. that he may make any lease in possession or reversion so as it doe not exceed the number of three lives or twenty one years in this case a lease may be made for ninety nine years if three lives live so long But where uses are raised by way of covenant and in the deed there is a proviso that the covenant or for divers good considerations may make leases for years in this case this power is void and therefore no lease can bee made hereupon neither will any averment help in this case And if a man have a Averment letter of Atturney or other authority to make leases for another and doe make them accordingly such leases are good But herein also caution must be had of three things 1. That the authority be Co. 9. 76. good 2. That he that is the Deputy or Atturney doe pursue the authority strictly 3. That he doe it in the name of his master and not in his own name A lease made for a thousand days moneths or weeks is as good Co. 6. 72. 14 H. 8. 13. 2. In respect of the manner of the agreement
Plow 421. 422. Co. 1. 155. is taken between leases made by matter of record and by writing and leases that are made by word of mouth for if the second lease be made by fine deed indented or poll albeit it be but for the same or for a lesser time and albeit it be a lease of the land it self and not of the reversion yet it will passe the rent reserved upon the first lease if the first lessee atturn and so also it will do without atturnment where atturnment is not needfull But if the second lease be made by word of mouth it is otherwise for a reversion and a rent in this case will not passe without deed and therefore a grant by word doth not passe them And if the second lease be by fine or deed indented then also it will Estoppel work by way of Estoppel both against the lessor and against the lessee so that if the first lease happen by any means as by surrender or otherwise to determine before it be run out then the second lessee shall have it and if there bee any rent reserved upon the second lease the lessee must pay it from the time of the making of the lease And therefore if one make a lease of Dier 112. Plow 432. land to A for ten years and after make a lease to B of the same land from Michaelmas next for ten years and before Michaelmas the first lessee doth purchase the fee simple so that now by this means his term is drowned in this case the second lease shall begin at Michaelmas So if one make a lease to A for twenty years and A make a lease of the land to B for two years rendring Co. 4. 53. rent and after A makes a lease for the rest of his time to C by deed this lease if the lessee for two years doe atturn is a good lease of the rent and reversion and so it is also without Atturnment if there be any consideration given for it for then it is also a good lease for all the rest of the term after the two years So if one make a lease to A for twenty years if he Co. 1. 155. Plow 432. 434. Hil. 6 Jac. Adjudge Finch versus Vaughan live so long rendring rent and after he doth make a lease to B by Indenture for eighty years to begin presently or grant the reversion to beginne at a day past or the like in all these cases if the first lessee atturne the rent will passe but if not it will be a good lease for the land for so many of the yeares as shall bee to come after the first lease ended But if the second lease bee by paroll without a deed the reversion as a reversion will not passe and the grant will bee void if there bee nothing else to help it And in cases where the second Dier 112. lease is void albeit the first lessee surrender his estate or his estate end by a condition yet the second lease is not hereby made good But if the second lease for yeares after another Co. 2. 35 36. lease for life or years be made for mony so as it may be said to passe by way of bargain and sale this may help the matter for in this case albeit it be by word onely it may passe the reversion and the rent also but in most cases it is good for the remainder of the term after the first lease ended And if the second lease be to begin after the end of the former lease in this case the former lease is no impediment at all to the validity of the latter lease but the latter lease is good notwithstanding Any person whatsoever of full age that hath any estate of inheritance Stat. 32 H. 8. cap. 28. Co. super Lit. 44. in fee taile in his owne right of any lands tenements or 5. What Leases or other acts may be made or done by a tenant in tail And what leases made by such a tenant shall be good to binde the issue or him in remainder or others after the death of the tenant in tail And how they shall bind hereditaments may at this day without fine or recovery make leases of such lands for lives or years and such leases shall be good so as these conditions and incidents following be therein observed and kept 1. Such leases must be by deed indented and not by deed poll or by paroll 2. They must be made to begin from the day of the making thereof Co. 5 6. Dier 246. or from the making therof And therfore a lease made to begin from Michaelmas which shall be three years after for twenty one years or a lease made to begin after the death of the tenant in tail for twenty one years is not good But if a lease be made for twenty years to begin at Michaelmas next it seems this is a good lease 3. If there be an old lease in beeing of the land the same must Co. 5. 2. be surrendred or expired and ended within a year of the time of the making of the new lease and this surrender must be absolute and not conditionall also it must be reall and not illusory or in shew onely For factum non dicitur quod non perseverat 4. There must not be a double or concurrent lease in being at Co. 5. ◠one time as if a lease for years bee made according to the statute he in the reversion cannot afterwards expulse the lessee and make a lease for life or lives or another lease for years according to the Statute nor è converso But if a lease for years be made to one and Sparks case Trin. 4 Jac. B. R. afterwards a lease for life is made to another and a letter of Atturney is made to give livery of seisin upon the lease for life and before the livery made the first lease is surrendred in this case the second lease is good 5. These leases must not exceed three lives or twenty one years Co. 5 6. Dier 246. from the time of the making of them And therefore if tenant in tail make a lease for twenty two or for forty years or for four lives this lease is void and that not only for the overplus of time more then three lives or twenty one yeares but for that time of three lives or twenty one years also And it hath been resolved that if tenant in tail make a lease for ninety nine years determinable upon three lives that this is not a good lease But if a lease be made Co. 1. by a tenant in tail for a lesser time as for two lives or for twenty years this is a good lease And if a lease be made for four lives and it happen that one of the lives die before the tenant in tail die yet this accident will not make the lease good but it remains voidable notwithstanding 6. These leases must be of
matter whereof it is made or the nature of the thing exchanged And of what things and estates an exchange may be made exchanged be such as whereof an exchange may be made And for this it must be known that an exchange may be made of things of the same nature as of a temporall thing for a temporall thing a spirituall thing for a spirituall as a house for a house land for land a Manor for a Manor a Church for a Church rent for rent common for common a horse for a horse one peece of plate for another or the like or it may be made of things of a divers nature as of a temporall thing for a spirituall as of a house for land or rent a chamber in a house for common or for a reversion seigniory or advowson of land or rent for a right of land or release of right of an advowson for land of a rent for a way of a horse for a peece of plate of a gowne for a horse or the like And exchanges made of these things albeit the things exchanged doe lie in divers counties are good Also a seigniory by homage and fealty or the like which is not valuable Perk. Sect. 259 260. 258. may be exchanged for land rent or any other such like thing So may a seigniory by divine service But a seigniory in frankalmoigne cannot be exchanged with any but the tenant of the land that doth hold by the tenure And houses manors lands rents commons seigniories reversions and the like may be exchanged in fee simple fee tail for life or years So that an exchange may be of an Inheritance for an Inheritance of a franktenement for a franktenemant and of chattells reall for chattells reall If one grant white acre in exchange for black acre lying within Perk. Sect. 244. Idem 263 3 E. 4. 10. 9 E. 4. 21. 9 E. 4. 21. Perk. Sect. 262. the same or in two counties this is a good exchange So if I grant a rent charge issuing out of my land in exchange to I S for an acre of his land c. this is a good exchange So if I have a rent issuing out of the land of I S and I grant this to I K in exchange for land or other rent this exchange is good when the tenant hath atturned to the grant of the rent So if one have a rent out of my land in fee I have the land in fee I grant the land in exchange for the rent it seems this is a good exchange But if one grant me a Manor or land I in exchange for the same Manor or land grant unto him a rent de novo issuing out the same land or Mannor this cannot take effect as an Exchange So if one release his Estovers that hee hath in Perk. Sect. 266. Fitz. Eschange 16. such a Wood and deliver the Release in Exchange for land given to him in exchange for the same release this is a good exchange d Perk. Sect. 271. If there be a disseisor and disseisee and the disseisee release his right to the disseisor in exchange for other land this is a good exchange e Idem 282. So if the disseisor of an acre of land enfeoffe a stranger of the same acre of land and the feoffee give to the disseisee an acre of land in fee in exchange for a release of all his right in the acre of land of which he was disseised this is a good exchange f Idem Sect. 271. But if the disseisee grant his right to a stranger that hath nothing in the land in exchange for an acre of land this exchange is not good neither shall the stranger take any thing by this grant g Perk. Sect. 260. If there be Lord and tenant by fealty and 12 d. rent and the Lord exchange the seigniory with the tenant for the tenancy or è converso by deed indented this is held by some to be a good exchange h Perk. Sect. 267. If I have a rent issuing out of the land of I S I grant or release the same rent to I S in exchange for other land this is a good exchange So if I release the same rent unto him in exchange for a way over his ground this is a good exchange Perk. Sect. 268 269. If I be seised of lands to which I S hath a right of action and I give to him other land for a release of his right this is a good exchange And the same law is of an exchange of land and an advowson by deed indented for a release of right in another advowson to an usurper when his Incumbent hath been in possession of the Church six moneths k Perk. Sect. 257. If two Parsons of a Church make an exchange of their benefices by words of exchange and each of them resigne his benefice into the hands of the Bishop to the same intent and the Patrons present accordingly and the Presentations are per viam permutationis this is a good exchange l Perk. Sect. 264 265. If three acres of land with an advowson appendant be given in exchange by T K to I S for a chamber to be assigned by the said I S at the election of T K and he assigne two chambers and T K choose and enter upon one and I S enter upon the land this exchange is good notwithstanding the incertainty So if I S give his Manor of A to T K in exchange for his Manor of B or for his Manor of C he enter upon one of these Manors and T K enter upon the Manor of A this exchange is good Out of all which these things by the way may be observed 1. That the things exchanged need not to be in esse at the time of Co. super Lit. 50. Perk. Sect. 265. exchange made for a man may grant a rent de novo out of his land in exchange for a Manor And yet if I grant to another the Manor of A for the Manor of B which he is to have after his fathers death by descent it seems this exchange is void 2. There needs no transmutation of possession for a release of rent estovers or right of land for land is good 3. The things exchanged need not to be of one nature so as they concerne lands or tenements for land may be exchanged for rent common or any other inheritance which doth concerne lands or tenements or spirituall for temporall things as tithes a tenure by divine service for land or a temporall seigniory But annuities and such like things which charge the person only and doe not concerne lands or tenements or goods and chattels cannot be exchanged for land The third thing required in a good exchange is that it be made Perk. Sect. 244. Co. super Lit. 51 52. Lit. Sect. 62. Co. 9. 14. Perk Sect. 247 248 249 250. 246. in that manner and order that law doth
is not a good exchange And by the same reason it should seeme if lessee for twenty yeares of his land exchange with another for other land for forty yeares that this should not be a good exchange o Perk. Sect. 276. But if lessee for life be of an acre of land and he give another acre of land to his lessor in fee taile in exchange for a release of all his right in the acre that he holdeth for terme of his life To hold to him and the heires of his body engendred this is a good exchange p Co. 11. 80. Or if tenant for his owne life exchange with him that is tenant in taile after possibility of issue extinct this exchange is good q Perk. Sect. 275. 19 H. 6. 27. And yet if an estate for life be expressed to the one party upon the exchange and no estate is expressed to the other party it is said that this exchange is not good and yet where no estate is expressed the party shall have an estate for his owne life But in these cases it is not necessary that the parties to the Co. super Lit. 51. Perk. Sect. 289. Lit. Sect. 65. Perk. Sect. 280 281. Husband and wife Tenant in tail exchange be seised of an equall estate at the time of the exchange made for if tenant in taile or husband in right of his wife exchange their land in fee simple with another for lands he hath in fee simple this is a good exchange untill it be avoided by the issue or the wife r Idem Neither is it necessary that both estates be in possession for one may grant an acre in possession in exchange for an acre in reversion and this exchange is good s Idem Neither is it necessary that there be an equality in the value or quantity of the lands exchanged for if the land of one of the parties be worth one hundred pound and the land of the other but tenne pound or the land of one of the parties be one hundred acres and the land of the other but tenne acres if the estates given be equall the exchange is good t Idem Neither is equality in the quality or manner of the estates requisite For if two Jointenants be in fee of an acre of land and they grant that acre to another in exchange for other lands To have and to hold a moity to one of them and his heires and a moity to the other and his heires which is an estate in common or two men give lands in exchange to A and his heires for lands from A to them two and their heires albeit the one party hath a joynt estate and the other a sole estate yet the exchange is good The like law is if the land of one of the parties be of a defeasible title and the land of the other of an undefeasible title this exchange is good till it be avoided The fifth and last thing required in a good exchange is that there Co. super Lit. 50 51. Co. 1. 98. 105. Perk. Sect. 284. 286. 292. 289. be an execution and perfection of the exchange by entry or claime 5. In respect of the execution of it in the life time of the parties viz. That both the parties to the same exchange do enter into the things taken in exchange if they be such things as they may enter into for untill the exchange be executed by entry or the like the parties thereunto have no freehold in deed or in law in the things exchanged albeit the same things do lie in one County And if either of the parties die before he enter into the lands by him taken in exchange hereby the whole exchange is become void if his heir will but if one of the parties enter he shall not first begin to avoid the exchange But if the parties enter at any time during their lives it is sufficient unlesse the possession be before devested by an elder title as by entry for a condition broken entry by a disseisee or his heir or the like and not revested again before the entry As if an exchange be had betweene two of land and before their entry by force of the exchange they are or one of them is disseised of the land exchanged and the disseisor die seised thereof and then they enter according to the exchange and put out the heir of the disseisor this shall not be said to be an execution of the exchange but if the disseisee have recovered the same land against the heir of the disseisor by writ of entry and have execution then he may execute the exchange by entry And in case where a reversion rent or seigniory is granted in exchange it must be perfected and executed by the atturnment of the tenant in the life time of the parties otherwise the exchange is not good but in this case after atturnment is made it seems the exchange is perfect without any entry or claim If two Parsons exchange their Churches and resigne them into Perk. Sect. 257. the Bishops hands this is not a perfect exchange untill they be inducted and therefore if either of them die before they be both inducted the exchange is void Where a deed shall take effect as an exchange there must be all Perk. Sect. 255 256. Fitz. Exchange 14. Perk. Sect. 272. the conditions before mentioned in the case And yet note that 4. When a deed shall take effect as an exchange Or not where one thing is granted for another in the nature of an exchange and for some of the causes aforesaid the things cannot passe by way of exchange there they may passe notwithstanding by way of grant and the deed may take effect to other purposes albeit it may not enure and take effect as an exchange And therefore if two be seised of severall acres of land and the one of them by deed doth give his acre to the other and the other his acre to him without any word of exchange and each of them doth make livery of seisin to the other in this case albeit the acres will not passe by way of exchange yet will they passe by way of grant And in this case if no livery of seisin be made either of them shall hold the lands granted at will only And in like manner it is if two agree to exchange land and after each of them levy a fine or make a feoffment of the land to other by this the land will passe each to other but not by way of exchange So if A and B his wife and C and D his wife agree to exchange lands and A and B enter into the land they are to have in exchange and then they doe make a feoffment of their own land unto C and his father and not to C and D his wife this shall not enure as an exchange and therefore C and D may enter upon their own land again but the
surrender is made And what agreement is necessary Agreement Trespasse surrendree doe once agree to it he cannot after disagree for his first agreement doth perfect the surrender But the actuall entry of the surrendree into the land is not necessary And therefore if tenant for life or years surrender to him in reversion out of the land and he agree to it he hath the land in him presently And yet he may not bring any action of Trespasse against any man for any Trespasse done upon the land untill he have made his entry But here note that in the cases before where things may not Perk. Sect. 588 589. passe by way of surrender either because of an intervenient estate or the like if there be sufficient words in the deed it may avail to other purposes and may enure and passe the thing by way of grant but then if it be an estate for life that is intended to bee surrendred there must be livery of seisin made upon the deed And wherefore if there bee lessee for yeares the remainder for life or years the remainder in fee and the lessee for years in possession doth surrender and grant all his estate to him in remainder in fee howsoever this deed cannot enure as a surrender yet it shall enure as a good grant of the estate of the lessee for years unto him in remainder in fee. A surrender in generall shall be taken most strongly against the Perk. Sect. 610 611. 6. How a surrender shall be construed and taken surrendror and most beneficially for the surrendree And therefore if I hold of the lease of A one acre for life and another acre for years and I surrender to A all my lands or all my lands I hold of his lease by this surrender both the acres are surrendred But if the surrender be of all the lands I have or hold for life or of all the lands I have or hold for years of the lease of A contra And if I hold one acre for life of the lease of the father of I S and I hold another acre for life or years of the lease of I S himself and I surrender to I S all the land I hold of his lease by this the land that I had by the lease of his father doth not passe A surrender to Perk. Sect. 615. Bro. Sur. 54. Co super Lit. 192. one jointenant shall be construed to enure to them all But if tenant for life or years grant his estate to one of the jointenants in reversion it seems this shall not enure as a surrender to them all but as a grant to him alone If the lessor make and the lessee take a new lease upon condition Co. super Lit. 218. this surrender in law is absolute and albeit the condition be broken yet the first lease is gone But if the lessee surrender or grant his estate to the lessor upon condition this condition if it be broken may revest the estate See more in the next question and in Exposition of Deeds If any kind of tenant for life of land infeoft him in remainder or Bro. sur 3. 5. Perk. sect 616. 620. 623. Co. super Lit. 42. Bro. Sur. 49. 7. Where a feoffment lease grant or other act made or doÌ„e by the tenaÌ„t for life or years shall be a surrender or not And how it shall enure or be coâ—strued and taken 1. When it is made to him in reversion or remainder reversion of the land or grant his estate to him in remainder or reversion this shall enure as a surrender And if lessee for years before his term doe begin make a feoffment to him in reversion or remainder or grant his estate to him this shall enure as a surrender And if lessee for life grant his estate to him in reversion the remainder in fee to another this shall enure as a surrender and this remainder is void But if such a tenant for life make a lease to him in remainder or reversion for the terme of the life of him in remainder or reversion this shall not enure as a surrender because it doth not give the whole estate but it shall enure by way of grant So if lessee for life make a lease to him in remainder in tail for term of the life of him in remainder this shall not enure as a surrender but as a grant and shall end with the life of the grantee If lessee for forty years make a lease for thirty seven Pasch 7 Jac. B. R. years on condition and after grant his estate to him in reversion and the second lessee atturn this shall enure as a surrender If there be tenant for life the remainder in tail to a stranger and Perk. sect 6â—â— the remainder in tail to another stranger the remainder in fee to the tenant for life and the tenant for life doth make a feoffment to the first tenant in tail this shall enure as a surrender of the estate for life and as a grant of the reversion in fee also If tenant Co. super Lit. 42. for life being a woman take a husband and then her husband and she by deed indented make a lease to him in reversion for the life of the husband this shall not enure as a surrender but as a grant If there be tenant for his own life the remainder to I S for his life Bro surrender 17. and the first tenant for life surrender to him in remainder for the life of him in remainder it seems this shall enure as a surrender and is no forfeiture but if he grant it to him for the life of a stranger and make livery of seisin this is a forfeiture If lessee for Forfeiture Perk. sect 615. life the reversion being in jointenants grant the land to one or all of the jointenants for twenty years this shall not enure as a surrender but as a grant for there remains an interest in the lessee still as a mean estate If lessee for years make him in reversion or Bro. surrender 52. remainder his executor this shall not enure as a surrender albeit it doe give him the whole estate If lands be given to the husband Bro. surr 36 and wife the remainder to I S and the husband discontinue in fee and take back an estate to him and his wife the remainder to W N and die and the wife claim in by the second estate and surrender to W N this shall not enure as a surrender but as a grant If lessee for life or years grant his estate to him in remainder or Bro. surr 11. Co. 2. 61. 3. 61. reversion and a stranger this shall enure as a surrender of the one 2. When it is done or made to him and a stranger half to him in reversion and as a grant of the other moity to the stranger And yet it is said that if lessee for life of land grant his estate
57. Co. 1. 113. 174. possibilities albeit they be not grantable over to another person yet may they be released to him that hath the present estate of the land And therefore if a man possessed of a terme devise it to A for life the remainder to B and his heires males during the terme in this case albeit B may not grant his interest over yet he may release it to A. And if A devise to B twenty pound when he comes to the age of twenty foure years and die in this case B after he is of the age of twenty one years may release this legacy So a covenant to doe a future act may be released before it be broken And it seems also the conusee of a Statute or recognisance may release to a feoffee of part of the land and so barre himselfe of execution of that land And if I grant to I S that if he doe such a thing he shall have an annuity of twenty pound for his life in this case it seems I S may release this before the condition be performed And if I make a feoffment to I S to divers uses with power to revoke it I may release this power to one that hath an estate of free hold in possession reversion or remainder in the land And yet if I make a feoffment to I S with proviso that if B revoke that the uses shall cease in this case B cannot release this power And a remote possibility that is altogether incertaine cannot be released And therefore if the sonne of the disseisee release to the disseisor in the life time of his father this release is void And so if the conusee of a Statute release his right to the land of the conusor before execution this release is void And so if a plaintife release to a Baile in the Kings Bench before Judgement given this release is void So if one promise to pay me tenne pound upon the surrender Adjudge Tr. 14. Jac. B. R. of my land to him and that if he shall sell it for above fifty pound that then he shall pay me tenne pound more and I release this to him before he doe sell it and before I do surrender im this case this doth not release the second promise because it is not releasable Also debts legacies and other duties may be released and See inâ—â— discharged thereby before or after they become due And therefore a rent or annuity may be released before the day of paiment And so also may a debt due by obligation Judgements Executions Recognisances and the like by apt words be discharged by release If the charge or duty grow by record the discharge and release 5. How and after what manner these things may be released thereof must be by record also And if it grow by writing the discharge and release must be by writing also Nihil est magis rationi consentaneum quam eodem modo quodque dissolvere quo constatum est And therefore a duty growing by a verball agreement may in some cases be released by word without writing But regularly lands and tenements cannot be given nor rights and titles to lands and actions be discharged by release without a deed in writing A release that doth enure by way of mitter le estate mitter le Condition Defeasance Co. super Lit. 274 Perk. Sect. 718. Lit. 467. Co. 1. 111. 21 H. 7. 24. droit or extinguishment may be made upon condition or with a defeasance so as the condition or defeasance be contained in the release or delivered at the same time with it for no defeasance made after can avoid the force of a release made before And yet a release may be delivered as an escrow and so the force of it may be suspended for a time But a release of a condition may not be made upon a condition Nor may a release of a chattell be upon a condition subsequent but it may be upon a condition precedent * Curia B. R. Hil. 9 Car. Barkley Perkes case Dier 307. 21 H. 7. 24. Co. super Lit. 274. Lit. Sect. 467. And therefore if a man release a debt to another upon condition that the relessor may have such a debt owing from a third person to the relessee this is a good coÌ„dition A release of all actions may be made untill a time past as untill the first of May last or untill the day of the date of the release and this will discharge all actions till then and none after But a release cannot be made of a right or action for a part of an estate or for a time only as for one year or untill Michaelmas next or the like for a release of such a thing for one day or for one hour is a release of it for ever And yet a man may release his right in a part of the land And therefore if a man be disseised of two acres he may release his right in one of them and enter into the other acre Also a release in the nature of an acquitance may Adjudged Barkley Perkes case Hil. 9 Car. B. R. be of part of a debt And therefore if one be bound in an obligation of foure hundred pound to pay two hundred pound at Michaelmas and at Christmas after the obligee by his deed releaseth three hundred ninty pound parcell of the said foure hundred pound this is a good release for so much and no more * 6. What releases may be made of lands or tenements And what shal be said a good release in deed Or not And by what words it may be made 1. When it doth enure by way of enlargement or passing of an estate 1. In respect of the estate of the relessor In every good release in deed howsoever it enure these things are requisite 1. That there be a good relessor and a good relessee and a thing to be released 2. That the deed be well sealed delivered c. And if it tend and enure by way of enlargement of estate then these things are further required to make the release good 1. He that doth make the release must have such an estate in himselfe as out of which such an estate may be Dier 251. derived and granted to the relessee as is intended by the release as if he have the reversion in fee of lands he may release to a tenant for years and thereby encrease his estate to an estate for life or in taile or he may passe his whole fee simple by the release But if there be lessee for years rendring rent and the reversion is Per Justice Jones 5 Car. Dier idem granted for life the remainder over in fee and the grantee of the reversion release all his right to him in remainder and then he in the remainder grant the reversion and the tenant for life release to the grantee also in this case it seems both these releases are void and cannot
doe any thing against them By this release also of all actions a debt due to be paid upon a statute or an obligation at a day to come albeit the release be before the day is discharged and by this also the statute it self if it be at any time before execution is discharged And if one be to pay forty pound at four days and some of the days are past and some to come and the debtee make such a release by this the whole debt is discharged Also in a Scire facias upon a Fine or a Judgement this release is a good plea in bar But this release of all actions will not discharge Executions or bar a man of taking out of Executions except it be where it must bee done by Scire facias Neither will it discharge or bar a man of suits by Audita Querela or writ of Error to reverse an erroneous judgement neither will it discharge covenants before they be broken nor will it discharge any thing for which the relessor had no cause of action at the time of the release made as if a woman have title of dower and doe release all actions to him that hath the reversion of the land after an estate for life or a man is by an award to pay me ten pound at a day to come and before the time I make such a release or I make a lease rendring rent or an annuity is granted to me and before the rent-day I make the lessee or the grantor such a release in these cases and by a release in these words without more the dower debt rent or annuity is not discharged And if a man have two remedies or means to come by land Lit. sect 496 497. as action and entry or by goods as action and seisure or the like in this case by a release of all actions he doth not barre himself of the other remedy Et sic è converso And if a man doth covenant to build an house or make an estate and before the covenant broken the covenantee doth release unto him all actions by this the covenant it self is not discharged And yet after the covenant is broken this release will Co. super Lit. 292. discharge the action of covenant given upon that breach By a release of all a mans right into any lands or tenements Of all right Co. 8. 151. Plow 484. 6 H. 7. 8. Co. 3. 29. 6. 1. super Lit. 345. without more words is released and discharged all manner of rights of action and entry the relessor hath to in or against the land for there is jus recuperandi prosequendi intrandi habendi retinendi percipiendi possidendi and all these rights whether they accrue by fine feoffment descent or otherwise are extinct and discharged so that if the relessee have gotten into the land of the relessor by wrong by this release the wrong is discharged and the relessee is in the land by good title Also by this release are discharged and released all titles of dower and titles of entry upon a condition or alienation in mortmain And if a woman have title of dower after an estate for life and make such a release to him in reversion this doth barre her By such a release also from the Lord to the tenant the services are extinct But this release will not bar a man of a possibility of a right Co. 10. 47. super Lit. 289. that he hath at the time of the release or of a right that shall descend to him afterwards And therefore if the conusee of a statute before Execution release all his right into the land to the terretenant or the heir of the disseisee in the life-time of his father doe release to to the disseisor all his right these releases doe not bar them Nor will this release bar a man of an Audita Querela and such like things And yet if the tenant in a reall action after the demandant hath recovered the land release to him all his right in the land this doth bar him of a writ of Errour for any errour in the proceeding in that suit And if there be Lord and tenant by fealty and rent and the Co. super Lit. 150. Dier 157. Lord by his deed reciting the tenure doth release all his right in the land saving his said rent by this release the right of the seigniory save only of the seigniory of the rent and fealty is extinct And if the Lord release to his tenant all his right to the land and seigniory salvo sibi dominio suo c. hereby the services only not the tenure is extinct And if one have a rent-charge out of my land and make such Perk. Sect. 644. a release of all his right to the land to me that am the terretenant without exception of the rent hereby the rent is extinct and gone for ever By a release of all a mans title into lands or tenements without Kelw. 484. 6 7 8. Co. super Lit. 265. 345. more words is released and discharged as much as is released Of all title by the release of all a mans right and both these releases have the like operation for howsoever title strictly and properly is where a man hath lawfull cause of entry into lands whereof another is seised for which he can have no action yet it is commonly taken more largely and doth include a right also And Titulus est justa causa possidendi quod nostrum est By a release of all entries or rights of entry a man hath into Co. 8. 15â—â— Or entry or right of entry lands without more words a man is barred of all right or power of entry into those lands upon any right whatsoever And if a man have no other means to come by the land but by an entry and he hath released that by these words he is barred for ever But if one have a double remedy viz. a right of entry and an action to recover his right by and then release all entries by this he is not barred of his action By a release of all actions reall without more words are discharged Of actions reall Lit. sect 492 493. 495. Co. 8. 151. Lit. sect 115. 500. Co. super Lit. 288 289. all reall and mixt actions then depending and all causes of reall and mixt actions not depending And therefore all causes of suing of assises writs of Entry Quare Impedit actions of wast and the like which the party hath at the time of the release made are hereby discharged But this release will not bar him that doth make it of any causes of action that shall arise and accrue afterwards Neither will it bar him of an appeal of death or robbery writ of Error or any such like thing Nor of any thing which a release of all actions will not bar And yet when land is to be restored or recovered by judgement in a writ of Error this
over the land after the time given him by the extent and after the impediments removed untill he be satisfied his debt and damages therefore he shall have no ayd of this Statute by Reextent for he is then only to be relieved by this Statute when as he is evicted and disturbed and is wholly and clearely without any remedy at the Common-law 2. Where the Statute saith untill he c. or his assignes shall fully and wholy have levied the whole debt and damages if he hath assigned severall parcels to severall assignes yet all they shall have the land but untill the whole debt be paid 3. Where the words be for the which the said lands c. were delivered in execution If A disseisor convey the lands to the King who granteth the same over to A and his heires to hold by Fealty and 20l. rent and after granteth the Seigniory to B B acknowledgeth a Statute and execution is sued of the Seigniory A dieth without heire and the Conusee entreth and is evicted by the disseisee in this case he shall have the ayd of this Statute but the Perquisite of a Villain being evicted is out of the Statute 4. Where the words be delivered and taken in execution yet if after the Liberate the Conusee enter as he may so as the land is never delivered yet it is within the remedy of this Statute 5. Albeit the Statute speake only of the recoveror obligee c. and not of their executors administrators or assignes yet the Statute shall extend to them 6. Where the Statute speakes of a Scire facias out of the same Court c. if the record be removed into another Court and there affirmed he may have a Scire facias out of that Court. 7. Where the Statute gives a Scire facias against such person and persons c. that were parties to the first execution their heires executors or assigns c. this must not be taken so generally as the letter is for if the first execution were had against a purchasor c. so as nothing in his hands were liable but the land recovered if this land bee evicted from the tenant by execution no Scire facias shall goe against him his executors c. but if he hath other lands subject to execution then a Scire facias lieth against him or his assignes but not against his Executor neither in that case can he have a Scire 7. Where and by what means a Statute or Recognisance and the execution thereof shall be discharged â—nâ— ponded or avoided â—â—l or iâ— paâ—t and where not facias upon this Statute against the first debtor or recognisor but if there be severall assignes of severall parcels of lands subject to the execution one Scire facias will lie against all the assignes A Statute or recognisance and the execution thereupon may be discharged divers wayes as by defeasance release paiment of the mony Dyer 297. 315. Co. 6. 13 20. Ass Pl. 7. See Defeasance debt and damages or the residue thereof unlevied delivery up of the Statute purchase of part of the land by the cognisee or the like And therefore if there be a defeasance to the Statute or recognisance and it be to pay money at a day or to performe some other thing and the money be paid or the thing done accordingly this is is a discharge of the Statute And therefore if such a Statute or recognisance be afterwards sued against the Conuâ—or hee may bee By defeasance â—elieved by an Audita Querela And if A bind himselfe to B by a Statute of 20l. and B sue execution and the lands of A are delivered to him in execution untill he levy the money and after B doth make a defeasance to A by Indenture that if A pay 10l by a day certaine that then the Statute or Recognisance shall bee voyd if this be done accordingly the Statute and the execution thereupon is defeated and discharged And if the Cognisee before By Râ—lease Coo. 〈◊〉 Litt. 〈◊〉 47. 50. 51. super Lâ—â—l 265. Broo. St. Marchant 2â— See Releaâ—â— execution or after release to the Cognisor the Statute or Recognisance or the debt this is a perpetuall discharge of the Statute and the execution thereupon But if the Conusee before execution release to the Conusor all his right in or to the land this will not discharge the whole execution for if he may not sue execution of the land afterwards as it seemes he may this notwithstanding yâ—â—â—e may sue execution of his body and goods But such a release after execution made of the land will no doubt discharge the land â—nd yet if a Conusee release all his right in the land to the Feoffee of the cognisor of a parcell of the land it seemes this will discharge the land of execution albeit it be before the execution sued that this release is made And so it is said it was resolved Mich. 26. 27. Eliz. If the cognisee assigne the Statute or Barrow Graies case 38. Eliâ— Recognisance to the Cognisor or to the terre-tenant by way of discharge of the debt or land it seemes this is a good release and discharge of it in law And if the Cognisee purchase any part By purchase or surrender of the land of the land of the Cognisor after the Statute or Recognisance Plow ye â— N. 104. lit Broo. Sect. 293. 11. M. 7 4. Branditâ— Queâ—la 48 Seat Marchant 42. Coo. â—eyre â—itt 150. 25. Aâ—s Pl. 7. Broo. Stat. Marchant 25. Littl. 〈◊〉 〈◊〉 25. entred into this is no discharge of the Statute or the Recognisance but the Cognisee may have execution notwithstanding of the lands that are left in the hands of the Cognisor or of his body or goods or all But if the Cognisee purchase parcell of the lands and a stranger another parcell in this case the lands that are purchased by the stranger shall be discharged of execution And if the Cognisee after execution sued purchase any part of the and or the Fee-simple of all or part of it doth descâ—nd to him by this the whole execution is discharged And if the Cognisee purchase all the lands of the Cognisor by this the execution as to the land is suspended but this is no discharge as to the body and goods of the conusor for they are subject to execution still And if the conusee reinfeoffe the conusor againe the execution may be revived again against the lands of the conusor so that they will be subject to execution againe whether they do contiâ—â—e in his lands or bee sold away to others So also if the Conusee enfeoffe a stranger after hee doth purchase the land and the stranger doth enfeoffe the Conusor in this case also the Execution is revived and the lands shall now be subject thereunto as they were before If a Leassee for life make a Lease for yeares rendring a rent and Harringtone case â—asche
Obligation be dated 23 die Aprilie in stead of Aprilis this is a good Obligation and this mistake will not hurt And if an Obligation have not date or a false and impossible date or have but halfe the date as the year of our Lord only or Coo. 2. 5. See at Fait Numb 5. if it want these words In cujus rei c. or the like if it be sealed and delivered it is a good Obligation A single Obligation may be to pay money or to doe any other Coo. 10. 110 See fait or Deed Num. 51. Secondly for the matter and substance of it thing that is lawfull and possible and such Obligations are good But if the Obligation be to bind a man to doe a thing unlawfull or impossible it is vâ—yd And therefore if one bind himselfe in an Obligation to kill a man burn a house maintaine a Suit or the like it is voyd So if the Obligation be made for maintenance or to that end or if it be made pursuant to and in execution of an usurious contract or the like it is voyd So if an Obligation be made against See more infra the Statute of 23. H. â— it is void So if one bind himselfe in an Obligation and the matter thereof is altogether uncertaine or insensible it is voyd but if there be any reasonable certainty in it it is good enough So if one bind himselfe to goe to Rome in three dayes under paine of â—ol this is void The condition of an Obligation may be either in the same or in Plow 141. 2â— H. 6. 51. Fitz Barre 157. 4. What shall be said a good condition of an Obligation or not First for the manner and frame of it another Deed and it may be indorsed of the back of the Obligation subscribed under it or contained within it but the best way to make it is the usuall way viz. The condition of this Obligation is such c. and yet if it be otherwise it may be good for if an Obligation be made from A to B and on the back of the same these words are indorsed That whereas the within bounden A is bound to B in 20 l. yet B. willeth and granteth that if A pay to B 10l at Easter that then the Obligation shall bee voyd it seemes this is a good condition So if in the close of an Obligation of 20 l. these words be added That if A the Obligor pay 10l to B the Obligee at Broo. Obli 89. Fitz. Barre 265. Easter that the Obligation shall be voyd this is a good condition So if an Obligation be made from A to B of 20l. and these words are subscribed Now therefore if the Obligor pay 5 l. quarterly for Pasche 8. Iac. B. Simpsons case 21 H. 6. 51. 26 H. 8. 9. foure years then it is agreed that the Obligation shall be voyd this is a good condition So if a single Obligation be made from A to B of 20l. and after the Obligation is made B doth by another Deed grant that if A pay him 10l at Easter the Obligation shall be voyd this is a good condition or Defeasance But if A do bind himselfe in an Obligation to B of 20 l. and after B doth bind himself in another Obligation to A to performe the Covenants of an Indenture and in this second Obligation there is a Proviso that B shall not sue upon the first Obligation till such a time this is not a good condition If A be bound to B in 20l. with condition that if B doe not bring 26 H. 8. 8. A a horse before Easter that the Obligation shall be voyd this a good condition and if the Obligee will have advantage of it hee must perform the thing Et sic de similibus So if A be bound in an Obligation to B in 20l. with condition that if B shall bring 20 load Bro. Count. 69. of wood to the house of A what A shall pay him the 20l. or that A shall pay him 20l. when B shall bring him 20 load of wood to his house these are good conditions and the thing must be done before the money is to be paid If the condition of an Obligation be That if A the Obligor doe not pay to B the Obligee 10 l. that the Obligation shall bee Broo. Oblig 42. voyd this is a good condition but it shall bee taken according to the words and therefore the Obligor is not to pay it And if he be sued he may plead performance of the condition in the not paying of it If these words be omitted in the close of the condition That Curia B. R. Pasche 90. Ia. Trâ—eman Parrams case then the Obligation to be void the condition is voyd but it doth not hurt the Obligation for that remaines single But if the next words viz. Or else shall stand in force be omitted the condition is never the worse for as the addition of them doth nothing adde to so the omission of them doth nothing detract from the strength of the Obligation The condition of an Obligation may be to doe any law full or possible thing as to pay money deliver goods or Cattell acknowledge a Secondly for matter and substance of it See in West Symb. Statute enter into an Obligation make a Release make an estate surrender an estate make reparations for quiet enjoying to save harmlesse to defend a title to performe Covenants to abide an Award to performe a Will to give so much land or money in legacy to purchase lands to appeare in a Court to marry another not to sue not to meddle with an Executorship not to revoke a Letter of Atturney not to be Surety not to play at cards or dice or any such like thing and such a condition is good So also it seemes a condition that a man shall not sell his goods is good But when the matter or thing to be done by the condition is unlawfull or impossible Pasche 8. Ia. Co. B. or the condition it selfe is repugnant insensible or incertaine the condition is voyd and in some cases the Obligation also And herein these differences are to be observed 1. When the thing enjoyned or restrained to be or not to be done by the condition is such a thing in his own nature as the comission Coo. 10. 101 11. 53. super Litt. 206. Dyer 304. Plow 64. Fitz. Obligation 13 See before in Condition and in Covenant or omission thereof is malum in se there not only the Condition but the whole Obligation also is voyd ab initio And therefore if one Against Law be bound in an Obligation with condition that he shall kill a man burn a house doe any other Felony commit any Trespasse maintain any Suit unlawfully or being an Officer that he shall take Fees by extortion or that hee being a Sheriffe c. shall let a Prisoner escape or that he
the said lands and after the land held in Capite is recovered from him or aliened by him bonâ â—ide in these cases the Devise is good for all the land held in Socage And hence it is That if the King grant land to one in Fee Farm to hold in Socage at a rent and after grant this rent to another and his heires to hold in Capite and the Grantee of the rent doth grant it to him that hath the land in this case because the rent is extinct and he cannot be said to hold lands in Capite this shall not restraine the Devise of any of his lands And yet if a man hold some lands by Knights Service in Capite and other lands in Socage and bee disseised of the lands held in Capite he cannot devise all his Socage land but the Devise will be void for a third part for he is said to have that land still whereof hee hath the right And albeit the Statute say that he that hath lands held of the King in Capite and other lands in Socage may give two parts for the advancement of his wife paiment of his debts preferment of his children whereby he is restrained to devise any more And therefore if by act executed in his life time he convey two parts to any such uses or intents he cannot devise any more by his Will but the residue must discend yet this also is to be intended of the land he hath at the same time For if a man be seised of land held in Socage of the yearly value of 20l. per annum and he hath not any land held in Capite by Knights Service and he make his Will in writing and by it devise his Socage land to one in Fee and then purchase land of the value of 20 s. per annum held in Capite and die this will make the Devise void for a part of the land that is held in Socage But if a man seised of land in Fee of Socage Tenure assure it to the use of his wife for her â—ointure and after purchase lands held in Capite by Knights Service he may devise two parts in three of all this Capite land and the King shall not have any thing out of or for the Socage land If a man seised of lands part of which are Coo. 3. â—4 〈◊〉 â—4 held in Capite and part in Socage make a Feoffment of the lands held in Capite being two parts in three of the whole to the use of him and his wife for life with divers remainders over in this case he may not devise any of the Socage land And if a man have no Socage land but Capite land and convey it away iâ— Fee-simple keeping no Reversion to any such use and after purchase Socage land he may devise all the Socage land newly purchased 6. As Coo. 3. 32. the Testator enabled to devise by this Statute without restraint is and must be one that hath the land he doth devise at the time of the Devise made and no other land then to be an impediment to his Devise so he must have a sole estate as well in the land he doth leave to discend to the heir as in the land he doth Devise And therefore if lands held in Capite be conveyed to a man and his wife and the heirs of their two bodies and this man hath other lands whereof he is sole seised held of the King in Capite by Knights Service in this case he may not devise two parts of the whole supposing this may suffice for the Kings third part for he may devise but two parts of the residue i. e. of that whereof he is sole seised either at the time of making of the Will or at the least at the time of the death of the Testator 7. The estate of the land that is held must continue after Coo. 10. 8â— the death of the Tenant otherwise it will be no restraint And therefore if Tenant in Taile be to him and the heirs males of his body the remainder in Fee to another of Lands held by Knights Service in Capite and he is seised of other lands in Socage in Fee and by his Will in writing devise all the Socage land and die without issue male in this case the Devise is good for all the Socage land And so also it is where the estate the Ancestor had of the land held is defeated by condition 8. That which a man cannot dispose by any act in his life time shall not be taken for any such Mannors c. Coo. 〈◊〉 32. whereof a man may devise two parts by authority of this Statute at his death And therefore in the case of an indevided estate of lands between husband and wife where the husband can make no disposition for longer time then during the Coverture these lands are not to bee esteemed such as are to be accounted amongst the lands whereof two parts in three are devisable 9. The Tenure by Coo. 10. 84. 3. 34. Knights Service must continue after the death of the Devisor otherwise the land so held will be no restraint And therefore if the King grant land to one and his heires to hold during his life by Knights Service in Capite and after in Socage or to hold during his life in Socage and after by Knights Service in these cases the Grantee may devise all his land notwithstanding the Tenure of this land 10. The King or other Lord must have a full and clear Coo. 3. 32. 31. super L. 〈◊〉 111. 10. 8â— yearly value of the third part left to discend to him and the value is to be esteemed as it is and doth happen to be at the time of the death of the Testator for the King or other Lord must have the like and equall benefit for his third part as the Devisee hath for the two parts without diminution or substraction when therefore a man will have his Devise good for the residâ—â— he must take care that the third part be so left for if the third part be not valuable or be charged with any rent c. or be upon any incertainty as if it be upon a possibillity only as where a man and his wife be seised of a joint estate Taile made during the Coverture and he Devise other lands to her on condition that she shall wave her estate made during the Coverture and so intend that that part of his land shall be left for the Kings part this Devise will not be good for the residue and albeiâ— the wife doe wave the estate after the husbands death yet this will not help the matter or make the Devise good for that part for which it was void before But it is not materiall by what Tenure the third part discending be held For it is holden by the better opiâ—ion That if a man be seised of 20 l. land held of the King in Capite and 10 l. land held
cannot devise by his Will any part of the third Acre and after he purchase three Acres of equall value held in Socage that in this case because he hath the reversion in Fee upon the estate Taile made to the younger sonne he can devise no more but two parts of the said land so newly purchased But if the reversion be gone before the purchase he may devise the whole Coo. 6. 16. super Litt. 111. but if a man be seised of lands in Fee part of which are held of the King in Capte by Knights Service and he convey two parts of it unto any of his sonnes or to the use of his wiâ—e for life or in Taile in this case albeit he may not devise any part of the residue yet he may by his Will devise the reversion of the two parts And in case where he hath not conveyed the full two parts he may devise so much as to make up that hee hath conveyed full two parts And it was further resolved in the same Leonard Loveâ—s case That whereas the Statute saith All persons c. having c. of any Mannors c. in possession reversion or remainder c. and the Feoffor L L in the case before had a remainder in Taile expectant upon the estates in Taile limited to the sonnes that this remainder was not within the Statute nor would have restrained the Devise but for the reversion in Fee afterwards A B being seised in Fee of the Mannor of Gracediu held in Capite and of the value 30 l. per annum and of the Mannor of Normanton held in Capite of the Coo. 11. 23. Henry Harpurs case value of 18 l. per annum in consideration of a marriage with M did covenant to stand seised of the Mannor of G to the use of himselfe and the heirs males of his body on the body of the said M and after to the use of W B his brother and the heires males of his body and after to the use of another brother in Taile and after to the use of his own right heires and of the Mannor of N to the use of himselfe and M he is to marry and the heires of his body and after the remainders as before of the other Mannor and after the marriage is had and A B doth purchase other lands held in Socage of the value of 3 l. per annum and then devised the same new purchased lands in this case it was adjudged that the Devise was void for a third part of the Socage land in respect of the reversion dependant upon the estate taile and yet that it was a good Devise for two parts of the new purchased land albeit he had executed his power and given more then two parts to the use of his wiâ—e And in these cases where a man hath land held in Capite and other land Coo. 10. 83. and he convey the land held in Capite to any of the Uses within the Statute as to his yoâ—â—ger children or the like or convey it with power of revocation only so that he hath power of the land still and after he purchase land held in Socage in this case it seemes hee may devise all the land newly purchased as if the land were conveyed without any such power of revocation A being seised of land in fee Coo. 6. 17. Sir Edwards case held of the King in Capite made a Feoffment of two parts of it to the use oâ— his wiâ—e for her life for her Jointure and after made a Feoffment of the third part to the use of such person and persons and of such estate and estates as he shall limit and appoint by his last Will and Testament in writing and afterwards he did by his last Will in writing devise this third part to one in Fee in this case it was resolved that the Devise was good for the whole third part And yet if a man make a Feoffment in Fee of land held in Capite to the use of his last will albeit the devise of the land be with reference to the Feoffment yet it is void for a third part E B being seised of 6 Mannors the one in Fee and the rest in Taile with the Coo. 10. 81. Tr. 34. Eliz. Bedinâ—ields case reversion expectant to him and his heires and hath issue T B divers of which Mannors are held of the King in Capite by Knights service and every of them of equall yearely value by his last Will in writing did devise all the said Mannors to divers persons and their heires for payment of his debts and advancement of his children and then died and the estate in taile that discended to his issue was more then a third part of all in this case it was resolved that the Devise was good for two parts of the reversions and for the entire Mannor in Possession and not void for a third part of the Mannor in Possession and for all the reversions in Fee A man being seised in Fee of Gavelkind land in Kent part whereof is held of Coo. Rep. Stamf. Per. 8. the King in Capite and part of Common persons in Socage hath issue A who hath issue B C and D and A deviseth some of these lands to B and some to C and some to D his Grand-children in taile in this case the Devise is void for a third part of the whole aswell for the land held in Socage as the land held in Capite And yet if in this case no Will be made the King shall have but a third part of that which doth discend to the eldest sonne the heire at the Common-law and not the third part of that which doth discend to the younger sonnes by custome And if lands devisable by custome come into the Kings hands and he grant them to hold of him in Capite and the Patentee devise them to the use of his wife children or for paiment of his debts c. in this case the Devise is void for a third part And here note that in all the cases before where a man is restrained to devise a third part of his land if he devise the whole the Devise is good notwithstanding for so much as he hath power to devise And as touching the thing devised is further to be known 13. That a man must have right to and possession of the land he deviseth or else the Devise is not good Plow 485. Devise of a right to Land or of Land that is another mans And therefore iâ— a Disseisor devise the land he hath gotten by Disseisin this Devise as to the Disseisee is void And if a man be disseised of his land so that he hath nothing but a right thereof left and then he devise this right or devise the land this Devise is void And if one contract for land aâ—d pay his money for it but Nevils case hath no assurance of the land and he devise this land to
another this cannot be a good Devise of the land but perhaps the Devisee may in a Court of equity compell him that hath received the money to assure and settle the land according to the Devise And if Plow 344. Fitz. Devise 7. one devise another mans land this Devise is void but if he after the Devise made purchase this land now is the Devise good If a man bargaine and sell land to me on condition to reenter if he pay Adiudged Powâ—ly Blakemans case me 10l and I covenant that I will not take the profits untill default of paiment and he make a Lease of 6 yeares of it to another and after breake the condition in this case I may devise this land and the devise will be good 14. A Seigniory Rent or the like Perk. Sect. 538. Litt. Sect. 585. 586. Dyer 253. 140. 5. 52. F. N. B. 121. Coo. super Litt. 111. 8. 83. 3. 33. thing is devisable as land is and will passe without the Attu nement Devise of Rent Coâ—â—mon Seignâ—ory or the like of the Tenant The like Law is of a reversion also And a man may devise a Rent de novo issuing out of land or a Rent issuing out of land that is in â—sse before And therefore if a man make a Lease for life or yeares rendring Rent the Lessor may devise this Rent So if if a Rent be granted to one and his heires the Grantee may devise this rent So a man that is seised of land in Fee may devise any rent out of it at his pleasure And therefore if a man that holdeth his land by Knights service in Cheiâ—e by his Will devise any Rent Common or other profit out of it this devise is good and that albeit the Rent or Profit doth amount to the value of the whole land as if one have 3 Acres of land worth 3s by the yeare and he devise 3s Rent out of it this is a good devise of the whole Rent but in this case the Rent shall issue out of two parts of the land and a third part shall be free and not charged with it but he may charge 2 parts in 3 parts of such land at his pleasure And so also it is if a man have lands holden by Knights service and not in Capite and other lands in Socage he may charge two parts of the Knights service land and all his Socage land at his pleasure And if a man have lands held in Socage and no lands held in Capite or by Knights service he may devise what rent he will out of it But a man cannot devise a Rent Common or any such like thing out of another mans land that is none of his owne nor out of that he hath nor And therefore if one devise 10l out of his Mannor of Dale when in truth he hath no such Mannor this Devise is void If a rent be granted to me for the life of I S it Oyeâ— 253. seemes I may not devise this rent but that the Terre-tenant shall Occupant hold it as an Occupant 15. Where a man is seised of a house in Fee and may devise the house it selfe there it seemes he may devise Devise of houses dooâ—es glasse wainscot c. Coo. 4. 63. Perk. Sect. 512. 518. Coo. 11. Rich. Liâ—ords case â—â—lw 88. the doores windowes wainscot or the like Incidents of the house And where a man may devise the land it selfe it seemes hee may devise the trees or grasse growing upon the land Quando licet â—d quod majus videtur licere id quod minus But where the land it selfe is not devisable there such things incident or annexed to or growing or being upon it are not devisable And therefore the tenant in taile for life or yeares of land may not devise the houses or windowes doores or wainscot of houses or trees or grasse being or growing thereupon but this devise is void 16. Where a man Perk. Sect. 500. Dyer Devise of a Vse hath a Use that is not executed by the Statute of Uses but remains at the Common-law he may devise it as he may any other thing And therefore if one be possessed of a Terme of yeares and grant it over to another to the use of the Grantor he may dispose this use See Vses by his Will for it is in the nature of a Chattell But if a man have such a Use in jointenancy he cannot devise it 17. All manner of Swinb part 3. Sect. 5. Perk. Sect 511. 525 goods and chattels reall and personall may be devised by Testament Devise of goods and chattels And therefore Leases for years of lands Grants for yeares of Rent Common or the like Wardships of the bodies and lands of heirs of Tenants by tenure in Capite and by Knights Service Cattell as oxen sheepe horses c. gold silver money plate houshold-stuffe as beds pots panns platters c. corne wooll and implements of husbandry may be devised by Will and not only those a man hath at the time of the Devise but those a man is to have or may have afterwards And therefore it is held a man may give his corne that shall grow in such a ground the next yeare after his death or the wooll or lambs his flock of sheep shall yeild the next yeare after his death and that these Devises are good but if in this case there shall be no such corn growing in that ground or any lambs or wooll arising out of his â—lock that yeare the Legacy is fruitlesse And yet if the Testator devise to I S 20 quarters of corne or 20 lambs and both will that the same shall be paid out of his corne that shall grow or out of his â—lock the next yeare and there be not so much corne or not so many lambs or not any at all growing or arising yet this is a good Devise and the things must be paid In like manner if a man give to I S a horse or a yoke of oxen in this case albeit the Testator have neither horse nor yoke of oxen yet the Devise is good and must be performed 18. Things in action as debts and the like albeit they be not grantable by deed in the life time of the party yet are 〈◊〉 of debts and things in action possibilities and incertainties they devisable by Will And therefore if the Testator doth by his Will give any debt due to him on an obligation or on a contract or the like this Devise is good And the thing devised may bee had thus the Testator may if he will make the Legatury Executor as to that debt or if he do not the Legatary may sue the Executor in the Spirituall Court or in some Court of equity and thereby compell the Executor either to recover it himself and so to pay it to the Legatary or to give the Legatary power to sue for and recover it himselfe in the Executors
20. Iâ—c periâ— versâ—s Peaâ—se B. R. Joane Elizabeth and Anne and by B his second wife â—lice and Elizabeth and by C his third wife William a sonne and three daughters Mary Katharine and Johan and he devise his land to Johan his youngest daughter for life paying 1â—s 4d to the sonne and after her death to the sonne and the heirs of his body and after his death without issue to Elizabeth the daughter of the second wife and Mary the daughter of the third wife for their lives the remainder in Latin to the next of the blood of the Devisor for ever and the elder Joan hath issue I P and dyeth the sonne dyeth without issue the younger Joan hath issue and dyeth Elizabeth of the first wife hath issue and dyeth Anne dyeth having issue Alice dyeth without issue Mary and Elizabeth born of the second wife die without issue Katherine dyeth without issue in this case and by this Devise the sonne and heir of the elder daughter after the death of the sonne without issue and of Elizabeth and Mary and not all or any of the children or their children shall have the land because proximo in Latin doth devote a person certain and there be expresse Devises to others But if in this case the remainder bee limited in generall to the next of blood without any other matter all the daughters perhaps may have it as Joint-tenants If a man have two sonnes and a daughter which hath two daughters â—â—â—z Devise 9. Perk. Sect. 508. and he devise his land to a stranger for life the remainder to his second sonne for life the remainder in Fee to the next of blood to his sonne in this case if the eldest sonne die without issue the daughter and her daughters shall have the land Whatsoever will passe by any words in a Deed will passe by Secondly in respect of the thing devised See in the Exposion of Deeds supra the same words in a Will and more also for a Will is alwayes more favourably interpreted then a Deed And therefore if a man devise the profits use or occupation of land by this Devise the land it Coo. 8. 94. Plow 525. selfe is devised If a man devise thus I give all my lands to I S or I give all my Mevils case Fitz. Deviâ—e 4. Bâ—oo Done 41. tenemeâ—ts to I S or I give all my lands and tenements to I S by this Devise is given and I S shall have not only all the lands whereof the Devisor is sole seised but also all the lands whereof he is seised in common or co-parcinery with another and not only the lands hee hath in possession but also the lands hee hath in reversion of any estate in Fee-simple but by this Devise regularly Leases for years of lands will passe If a man devise thus I give all my land in possession only by Plow 66. this Devise there is given the lands he hath in possession only and none of the lands he hath in reversion If a man be seised of land in Fee-simple in Dale and devise thus Plow 343. 544. old N. 〈◊〉 89. Fitz. Devise 17. I give all my lands in Dale to I S and after Will made and published he doth purchase other lands in Dale and dyeth in this case and by this devise I S shall not have the new purchased lands and in this case it hath beene held further That if the Testator doe by word of mouth after the purchase of the same lands declare himselfe to be minded that I S shall have the same new purchased lands also by this Devise that notwithstanding I S shall not have them by this Devise * Trin. 37 Eliz. B. R. Breckford versus Parincoâ—e And yet it hath been adjudged That if in this case one come to the Devisor to buy his new purchased land and he say nay but I S shall have it as the rest that this is a new publication of the Will and that I S by this devise shall have these new purchased lands for a new publication of the Will in these cases will make the land to passe But if a man devise the Mannor of Dale and at the time of the devise he hath it not or devise his lands in Dale and at the time of the devise he hath no lands there and afterwards he doth purchase the Mannor of Dale or lands in Dale by this devise and in this case the Mannor and the new purchased lands will passe for in this case it shall be intended he meant to purchase it And yet the Statute enabling a man to devise lands saith Any person See before having c. Coo. 3. 30. If one have an ancient Tenement and lands belonging to it and Loftis versus Baker Hill 20. Ia. B. R. then purchase more lands and occupy them altogether with the Tenement many years and being all thus in his occupation he doth make a devise after this manner I give my Tenement in Dale and all my lands belonging to it now in my occupation to I S. by this devise I S shall have the ancient land onely and none of the new purchased land but if there be no ancient land belonging to the Tenement but new purchased land onely there perhaps it may be otherwise for in this case the words cannot else be satisfied As in case where a man hath some lands in Fee-simple and other lands for yeares onely in Dale and he devise all his lands and Tenements in Dale by this devise the lands he hath for years doth not passe but if he have no other lands in Dale but these lands in this case perhaps this land will passe If one have a moity of lands in Essex and a moity of lands in In Mevils case Kent and he devise thus I give my moities and all my other lands in Kent to I S it seems by this devise the moities in both Counties do passe and that I S shall have both the moities If a man be seised in Fee in possession of the moity of a Farm called Plich 20. 12â— Adiudged Scatergoods case the Farm of C. and of the reversion in Fee of the other moity expectant on a lease made to A and B for their lives and he make his Will thus I will that my wife shall have all my living which I now occupy untill my son come to 21. years of age and then I will have her have the thirds of all my living and that my sonne shall have all my Farm of C to him and his heirs by this devise if A and B dye before the heire be 21. yeares of age the wife shall have the thirds of the whole Farm and not of the moity in possession onely If a man be seised of land in a Village and in two Hamlets of the Dyer â—65 same Village and he devise all his lands in that Village and in one of the Hamlets by this
it and cannot If one covenant to make a Lease for yeares to the deceased his executors or administrators and after his death the Lease is made to the executor or administrator accordingly in this Coo. 5. 34. case this Lease shall be said to be assets in his hands and he shall be chargable for so much to any Creditor And whatsoever the executor or administrator must be forced to sue for by the name of executor or administrator being recovered shall be esteemed assets in his hands 6. Albeit the thing be extinct and gone as Coo. 1. 87. Broo. Leases 63. to the executor and administrator himselfe yet it may have his being and be accounted assets as to the Creditors and Legatees And therefore if an executor or administrator have a Lease for yeares of land in the right of the deceased and afterwards he doth purchase the Fee-simple of the land whereby the Lease is drowned yet in this case this Lease shall continue to be assets as to the Creditors and Legatees still c Trin. 7. Ia. B. R. Simmons case Coo. 8. 130. And if the Debtee make the Debtor his Executor or the Debtee dye intestate and the administration is committed to the Debtor in these cases this debt shall be said to continue and shall be esteemed assets for so much as to other Creditors And if a woman Executrix have goods worth 20l. and she marry with one of the Creditors to whom 20l. is owing in this case it seems the husband may not retain the goods to pay himselfe but they shall be assets to other Creditors And yet if the Debtor make the Debtee his executor he may retaine so much as to satisfie his own debt and that he doth so retain shall not be said to be assets in his hands as to any other Creditor And if I S Bâ—rnets case Hill 8. Iac. Plow 184. have goods to the value of 20l. and he is bound to B and C in 20l. a piece and he dyeth intestate and after D doth administer and then B dyeth and maketh D his executor in this case D may retain this to satisfie his own debt and it shall not be said to be assets in his hands as to any other 7. The goods and chattels of other men in the hands of the executor or administrator Kelw. 63. Coo. 6. 5â— Dyer 362. that were in the possession of the deceased if he had no right to them or if he had and they do not belong to the executor will not make the execuâ—â—r or adminisâ—â—ator chargable for these shall not bee esteemed assets in his hands And therefore if the goods of another man be amongst the goods of the deceased and these come all together into the hands of the executor or administrator these goods that are the goods of another shall not be said to bee assets in the hands of the executor or administrator And if the executor doth receive a rent that doth belong to the heir this rent shall not be said to be assets in his hands and hence it is that if Doct. St. lib. 2. cap. 3. the deceased were outlawed at the time of his death that his goods and chattels are not no be accounted assets for they are none of his 8. * Coo. â— 30. Dyer â— If an executor of his own wrong to whom 20l. is owing doth enter upon so much of the goods of the deceased as is worth 20l. intending to pay himself this shall be esteemed assets in his hands to make him chargable for so much to any Creditor or Legatee 9. * 27 H. 3. 6. It the deceased have goods worth 20l. and owe 20l. to A and 10l to B and he compound with A for 10l in this case he shall be said to have assets and be charged to pay the debt of B also 10. If a man have a Lease for years worth 20l. per annum at the rent of 5l and he die in this case not the Coo â—5 31 10 H. 7. 5. whole value of the land but so much as is above the rent shall bee said to bee assets in the hands of the executor or administrator The Probate of a Testament is the producting and insinuating Swinb 251 264. 40. Probate Quid. Quotuplex of it before the Ecclesiasticall Iudge Ordinary of the place where the party dyeth or other that hath power to take the same And this is done in two sorts either in common Form i. e. upon the oath of the executor or party exhibiting it upon his credulity that the Will exhibited is the last Will and Testament of the party deceased which is the ordinary course and this the Ordinary may accept if he will Or per testes i. e. which is when over and besides his oath he doth also produce witnesses or maketh other proof to confirm the same and that in the presence of such as may pretend any interest in the goods of the deceased or at the least in their absence after they have been lawfully summoned to see such Will proved if they think good And this course is used only where there is a suspition of the Will and the Caveat is entred or where there is a feare of contention and strife between the kinred and friends of the party deceased about his goods for a Will proved in common form may be called into question at any time thirty yeares after and when the Will is thus exhibited into the Bishops Court the same is to be kept by his officers and the Copy thereof in parchment under the Bishops Seale of his office to be certified and delivered which parchment so sealed is called the Will proved The Probate of the Will as having respect to the 41. Where the Probate of a Will is necessary and where not And by and before whom And in what time it must be proved goods and chattels is in some respect necessary for howsoever Coo. super Litâ— 292 Perk. Sect. 481. as touching any Frâ—e hold of lands devised it is not all materiall and howsoever the Executor before Probate may receive and release debts and do most other acts as Executor yet he cannot sue for any debt due to the Testator And if the Executor delay the Probate the Ordinary may be Processe compell him to come in and accept or reâ—use of the Executorship And when it is proved it must be proved by the Executors or one Perk. Sect. 49. 〈◊〉 2. 486. Coo. 9. 36. â—â— Testament â—â— 5. Plow 280. â—tat 23 H. P. cap. 9. 2â— H. 8. c. 5. See before at â—an 21. of them at least and if all the goods of the deceased be within the same Diocesse wherein he lived and dyed the Executor must prove it before the Ordinary of the Diocesse or before his lawfull Commissary or Deputy or before the Archdeacon or his Deputy or Commissary as their composition is or if the goods be in a Peculiar then before him that