the perticular Tenant If a man hath issue a Son of nine yeares and makes a Lease till his son shall come to his full age then the remainder to another in Fee nothing vesteth forthwith to him in remainder and the remainder is utterly void and yet it may take effect because the remainder ought to passe out of the lessor forthwith executed or executory either to him in remainder or to be in abeyance or custodie of the Law and a franktenement in such case cannot be an abeyance and therefore the remainder void Lease for yeares the remainder over in Fee if the tenant enter before livery his terme is good but the remainder is void because the remainder was not out of the lessor at the time of the possession taken by the particular tenant but if I appoint the Lease to commence at Michaelmas next the remainder over in Fee there although the lessor make Livery to the Lessee yet the Livery and Seisin and the remainder shall be void because there was no estate present whereunto the Livery may be annexed and whereunto it might unite in the meane time HEE to whom the remainder is appointed must at that very time be a person able and of capacity to take the remainder or else the remainder shall be void and it is a principle in Law that in all gifts be they by devise or otherwise it behooveth to have a Donee in esse which hath power and capacity to take the thing given at the very time when it ought to vest for if there be not any such in rerum natura when the thing ought to vest There is a diversity between a remainder limited by a particular name for a remainder limited by a general name may be good though the person be not in esse at the time of the remainder limited as in this case next following This remainder to I S may be good yet he hath no heir at the time of the remainder limited so of a remainder limited Primogenito filio But a remainder limited in particular by name of Baptisme and Sirname is not good if the partie be not in esse Coke 2. part Fo. 51. Sir Hugh Cholmleis case the gift shall be void Plowden Fol. 345. And therefore if a Lease be made to one for life the remainder to the Mayor and Commonalty of Cirencester which then have not capacity to purchase Lands and after they have gained a capacity to purchase and then the tenant for life dyeth the Mayor and commonalty shall not take the remainder because he was not a person able at the time of the remainder appointed to take it so if the remainder were appointed to him whom tenant for life shall name If a Lease be made to one for life the remainder to I. S. in Fee who is a monke professed and afterwards is derained and then the Tenant for life dyeth I. S. shall not have the remainder because he was not a person able to take it at the time of the remainder appointed But if Land be given to one Et filio suo primogenito and he hath no issue at the time of the gift and afterwards he hath a son that Son shall have the Land by way of remainder and yet the remainder was not out of the lessor neither did it vest at the time of the Livery but the law shall conster the Livery and limitation most strong against the lessor Plowden 296. Lessee for yeares the remainder to the right heires of I. S. this remainder is utterly voide and the Livery thereupon is voide because there is no person capable to take the Franke tenement at the time and Livery Seisin may not be in suspence where the frank-tenement may not be in obeysance but Affees may where the franck-Tenement is well disposed and where there is a Tenant thereof to the Precipe THe thing whereof a Remainder shall be created must be in esse before and at the time of the appointment and creation thereof or else the remainder is voide For if I grant a rent out of my Land Vide fo 38. the remainder in Fee this remainder is void because the rent was not in esse before But at the beginning of a grant a man may grant a rent in such manner as pleaseth him And a man may grant a rent newly created to begin after the death of I. S. But when a rent is in esse or a reversion remainder or other thing a man may not make it to be in esse for a time and to cease for another time as to grant it to one after the death of another or from a day to come reserving to him an estate in the meane time NO remainder may commence upon any repugnancie or impossibility precedent nor upon any condition that goeth to the destruction of the perticular estate for conditions alwaies inure in a privity so that none shall take advantage of conditions but those which are privies for none shall enter for a condition broken but onely the Feoffor donor and Lessor and their heires And as none shall avoide an estate formerly made by the breach of a condition but onely the privies see none shall take a new estate by the performance of a condition but onely the privies If a Lease be made to two the remainder over in Fee after the death of the first of them this remainder is voide because the Servivor shall hold place after the death of the first and therefore repugnant and void If a Lease be made for life the remainder for life and if the first tenant for life dy then the remainder over to a stranger over in Fee this remainder dependeth on a repugnancy precedent and therefore voide If a Lease be made for yeares rendant rent and upon condition of none payment the remainder to a stranger and Livery is made accordingly that is a void remainder which doth commence upon a repugnancy precedent and which dependeth upon a condition which goeth to the destruction of the perticular estate and especially where such a remainder is created by livery and sesin But by a limitation of a devise or by limitation of use such remainder is good as a Feoffment to the use of I. S. for years and upon payment by him of twenty pounds the remainder to I. D. for life this is a good remainder So it is where the remainder is created by the limitation of a last will as if a man devise his Lands to his wife c. If a man make a Lease for life rendant rent and upon condition that if the rent be behind then the remainder to a stranger in Fee after the first estate ended that remainder is void because conditions inure alwaies in a privity c Lessee for life upon condition that if I.S. pay the lessor twenty pounds that then the lessor shall enter upon Tenant for life and then the remainder over to another that remainder is void because by the
M. and of his heires for ever And as for and concerning the said Mannor of c. Vses raised for payment of debts and performance of his last Will. to the use of F. M. for life and then to daughters for portions in such manner as is next before limited And from and after such time as the said severall summes of c. shall or may be had levyed or taken then to the use and behoofe of the Executors and Administrators of the said F. M. for and during the terme of ten yeares then next following for and towards the payment of the debts of the said F. M. the father and for and towards the performance of his last Will Testament and from and after the end of the said terme of 10. yeares then to the use and behoofe of the said E. M. for his life without c. and so on with an intaile et supra Reddendo reservando A rent must be reserved out of Lands or tenements whereunto the Lessor may have resort or recourse to distrain therfore a rent cannot be reserved by a common person out of any incorporeall inheritance as advowsons commons Offices corody multure of a Mill. Reservations of Rent with all incidents belonging thereunto and how tenant in taile must reserve the rent upon his Lease A Man makes a Lease the first of October for ten yeares from the feast of St. Michael then last past yeilding to him and his heires 20. pounds at Michaelmas or within one month after in this case if the lesser die between the feast of St. Mic. and the end of the month the heir shall have the rent as incident to the reversion and not the executors as rent behind because it was not due till the end of the Month. And so if the Lessor betweene the said two daies had granted the reversion over and the Tenant attorne the Grantee shall have the rent as incident to the reversion Tithes Faires Markets Liberties Priviledges Franchises and the like But if the lease be made of them for years by deed it may be good by way of contract to have an action of debts but distrain the lessors cannot neither shall it passe with the grant of the reversion for that it is no rent incident to the reversion but if any grant be reserved in such case upon a lease for life it is utterly void because in that case no action of debt lieth But if a man deviseth the vesture or herbage of his land he may reserve a rent for that the thing is maynorable and the lessor may distraine the cattle upon the land a reversion or remainder of Lands or Tenants may he granted reserving a rent for the apparent possibility that it may come in possession they are tenements within the words of Litleton Vide fo 44. A man makes a Lease for yeares yeilding a yearly rent at the feast of Pasch or a month after with condition of re-entry and the Lessee tenders the rent at the last instant of the day of the feast of Pasch The Lessor in the case may not re-enter upon demand made the last instant of the month because the Lessee hath liberty to pay it then and the diversity was taken between the disjunctive reservation and when the reservation is at a certain feast and a condition is added that if it bee behind by the space of a month after the feast that then the Lessor shall re-enter there the lessee for the salvation of his Lease may not tender it at the last instant of the Feast day because he hath not such liberty and election as in the other case and it was resolved by all the Justices that in the said case of the disjunctive reservation if the lessor dy between the said two daies the heire shall have the rent and not the Executor A man leased certain lands for years yeilding yearly a rent of thirty pounds at Michaelmas and the Anuntiation or within 12. daies after every of the said feasts payable at the Fontstone in the Temple Church London upon condition that if the said rent of 30 l. or any part thereof be behind and unpaid by the aforesaid space of twelve daies next after any of the aforesaid Feasts or daies of payment thereof as is aforesaid therof as is aforeraid that then the said Lease shall be voide and it was adjudged that the lessee in safegard of his Lease shall have 12. daies after the 12. daies to pay the rent for when the rent is not paid at the first day it is as much as if it had been reserved upon the twelfth day after And where it is said per perdictum spacium 12 dierum post c. by good construction all the words ought to take effect viz. post aliquod festorum praedict seu dierum solutionis inde and dies solutionis is the 12. day after the feast and therefore the Lessee shall have 12. daies after the twelfth day which is dies solutionis post festum c. and that for the most a vaile of the Lessee for whose benefit over time was given and those words praedictum spatium 12. dierum standeth well in good sence viz. post praedictum spacium 12. dierum post praedictos 12. dies for that is praedictum spacium though it hath not the same commencement a the other hath And so the quere in 3. and 4. P. M. fo 142. well resolved Dier A Parson of a rectory made a lease for yeares rendant rent at Michaelmas or within a month after The Lessor died ten daies after Michaelmas and was barred by judgement of the Court because the lessor died before the rent was due Dame Eliz. Pawlet seised of the Mannor of Wade for her life by Deed indented demised the Mannor to William Pawlet for 99. yeares if she the said Dame Eliz did so long live yeilding the rent of 100. pounds at Michaelmas and Pasch or within 40. daies after either of the said feasts W. Pawlet made Dulcibel his wife Executrix and died Dulcibel took to husband Iohn More Esq Dame El. Pawlet made Edward Walgrove her Executor died the thirteenth day after Michaelmas her Executor brought an Action of Debt for the halfe yeares rent ended at the Feast before the death of the said Eliz. tota Cuâ—ia contra quaerentem Yeilding and paying therefore yearly during the said terme unto the said c. the yearely rent or sum of a 100. pounds Rent reserved to be paid of the thing demised and without any demand of the rents so note that by speciall consent of the parties a reentry may be for default of payment of rent without demand thereof Nomine penae forfeited for non-payment of rent without any demande made at two tearmes or Feasts in the yeare most usuall by equall portions the first payment therof to begin at the Feast c. next ensuing the date hereof the same payments to be made yearely at or in
adjudged the demand ought to be made upon the Land Coke 4. part fo 72. When Qu. Eliz. made a Lease for yeares rendant rent which condition ut supra the Qu. shall take advantage of the condition without any demand but when she grants the reversion over her grantee shall not take advantage of the condition without demand If the King make a Lease for yeares rendant rent without limiting any place or to whose hands it shall be paid the Lessee may by the law pay it either at the receit of the Exchequer or to the hands of the Kings Bayliffs or Recevors Excellent matter touching demands and where the demand ought to be made If a man by Deed indented enfeoff another in fee-simple rererving to him and his heires a certaine rent payable at one Feast or divers Feasts upon condition that if the rent be behind then a re-entry in this case though the rent be behind and not paid yet if the Feoffor doth not demand the same c. he shall never re-enter because the land is the principall debitor for the rent issueth out of the Land The demand must be made upon the land because the Land is the Debitor and that is the place of demand appointed by the law Coke Liber 4. fo 72. 73. Borowes Case If the rent be reserved to be paid at any place from the Land yet it is in Law a rent and the Feoffor must demand it at the place appointed by the parties observing that which shall be said hereafter concerning the most notorious place Coke liber 4. 73. Plowden fo 70. If there be a house upon the Land he must demand the rent at the house and he may not demand it at the back-doore of the house but at the fore-doore because the demande must ever be made at the most notorious place and it is not materiall whether any person be there or no albeit the Feoffee be in the hall or other part of the house yet the Feoffor need not but to come to the fore-doore for that is the place appointed by the Law though the doore be open 15 Eliz. Dier fo 329. If the Feoffment were made of a wood onely the demand must be made at the gate of the Wood or at such high-way leading through the Wood or other most notorious place and if one place be as notorious as another the Feoffor hath election to demand it at which he will and although the Feoffee be in some other place of the Wood ready to pay the rent yet that shall not availe him 15. Eliz. Dier fo 329 And if the Feoffor demand it on the ground at a place which is not most notorious as at the back-doore of a house c. in pleading the Feoffor alleadge a demand of the rent generally at the house the Feoffee may verse the demand and upon the Evidence it shall be found for him for that is a void demand And all this is to be understood when the Feoffee is absent for if the Feoffee commeth to the Feoffor at any place upon any part of the ground at the day of payment and offer his Rent albeit they be not at the most notorious place nor at the last instant of the day the Feoffor is bound to receive it or else hee shall not take any advantage of any demand of the Rent for that day Therefore the place of demand being now knowne it is further to be known what time the Law hath appointed for the same this partly appeareth by that which hath been last said for albeit the last time of demand of the rent is such a convenient time before sun setting of the last day of payment as the money may be numbred and received notwithstanding if the tender be made to him that is to receive it upon any part of the Land at any time of the last day of payment and he refuseth the condition is saved for that time for by the expresse reservation the mony is to be paid on the day indefinitely and convenient time before the last instant is the uttermost time appointed by the law to the intent that then both parties should meet together the one to demand and receive and the other to pay it so as the one should not prevent the other but if the parties meet upon any part of the Land whatsoever on the same day the tender shall save the condition for ever for that time And if the reservation of the Rent be at certaine Feasts with condition that if it happen the Rent to be behind by the space of a week after any day of payment c. In this case the Feoffor needeth not demand it on the Feast day but the uttermost time for the demand is a convenient time before the last day of the week unlesse before that the Feoffee meet the Feoffor upon the Land and tender the rent as is aforesaid Plowden fo 167. 172. 20 H. 6. 30. 31 6 H. 7. 3. If a rent be granted payable at a certain day if it be behind and demanded that the grantor shall distraine for it in this case the Grantor need not demand it at the day but if he demand it at any time after he shall distraine for it for the Grantor hath election in this case to demand it when he will How tender and payment of money upon a bond must be made Rent payable at a day the party hath all the day till night to pay it but if it be a great sum and as a 1000 l. he must be ready as long before sun set as the mony may be told for the other is not bound to tell it in the night L. Mariae 172. b. Finch fo 38. vide fo 63. plus de hoc to enable him to distraine Coke Littleton fo 201. 202. 203 Cokes report li. 7. fo 28. Maundes case If a man make a Lease for yeares reserving a rent with condition that if the rent be behind that the Lessor shall re-enter and take the profits untill thereof he be satisfied there the profits shall be accounted as parcell of the satisfaction and during the time that he so taketh the profits he shall not have an action of debt for the rent for the satisfaction whereof he taketh the profits but if the condition be that hee shall take the profits untill the Feoffor be satisfied and paid of the rent without saying thereof or to the like effect there the profits shall be accounted no part of the satisfaction but to hasten the Lessee to pay it Cokes Littleton fo 203. 3 E. 3. 7. 27 H. 8. 4. 43 E. 3. 21. Although that the last time of payment of money by force of the condition is convenient time in which the money may be numbred before sun setting yet if tender be made to him that ought to receive it at the place specified in the condition at any time of the day and he refuse it the condition is saved for ever and
life make a Feoffment that is a forfeiture and yet nothing passeth but his own estate But making a Livery in fee it is a forfeiture though none of the remainders be divested Coke 2. pars fol. 76. b. Bredons case vide plus fol. 50. this is a forfeiture and yet no reversion or remainder is divested out of the King A particular Estate of any thing that lyeth in Grant cannot be forfeited by any grant in Fee by Deed As if Tenant for life or years of an Advowson Rent Common or of a reversion or remainder of Land by Deed grant the same in fee this is no forfeiture But if such a Tenant levy a Fine c then it is a forfeiture Note The diversiâ—y between Livery and Seâ—sin of Land and the delivery of a deed and what is a good delivery of a deed in Law there is a diversity between Livery and Seisin of Land and the delivery of a Deed for if a man deliver a Deed without saying of any thing it is a good delivery but to a Livery of Seisin of Lands words are necessary as taking in his hands the Deed and the ring of the doore if it be of a house or a turff or twig if it be of Land and using the words aforesaid And a Deed may be delivered to the party without words without any act of delivery As if the Writing sealed lyeth upon the Table and the Feoffor or Obligor saith to the Feoffee or Obligee Go and take up the said Writing it is sufficient for you or it will serve the turne or take it as my Deed or the like words it is a sufficient delivery Cokes Littleton title Dower fol. 36. a. 29 H. 8. Dyer fol. 95 43 Eliz. inter Hawsly Lacker in Banco Rs. Hillary 12 Jac. Rs. in Com. Banco The Grant of a Seignory Rent-charge Rent-seck Attornment in toto withall incidents therunto as also the Remainder or reversion of any of these or the remainder or reversion of the Land it self is nothing worth without Attornment viz. the agreement of the Tenant that must be presently charged As Lord Mesne and Tenant the Lord grants his Seignory the Mesne must attorne and not the Tenant prevaile for the Mesne is Tenant to the Lord Lord and Tenant the Tenant letteth the Land for life or giveth in taile saving the reversion to himself Now if the Lord grant his Seignory he in the reversion must attorne to the Grantee and not the Tenant for life or Tenant in taile for he in the reversion is Tenant to the Lord and not the other But if the Tenant had let his Land to one for life the remainder in fee thereupon a grant of the Seignory the Tenant for life must attorne for he is Tenant to the Lord so is not he in the remainder so long as Tenant for life liveth If Lands be let for years or given in taile saving the reversion upon a Grant of the reversion the Tenant of the Land must attorne And an Attornment may either be by word as to say I agree or am content with the Grant Or I attorne to you and become your Tenant by force of the Grant or else by the delivery of a penny and to the Grantee c. in name of Attornment or by any other matter implying an agreement as by a surrender to the Grantee of the reversion praying in aide of him c. and if such an Attornment be not to the Grantee in the life of the Grantor then the Grant is void In the Grant of a Reversion depending on a Freehold the attornment of the Freeholder is sufficient though he be not the Tenant that must presently be charged As if Lands be let to a man for years the remainder to another for life and hee in reversion grant the reversion to another the attornment of him in the remainder is sufficient 1 Littleton fol. 1â—… 〈◊〉 the 〈…〉 nly and where not If a man bind himself and his Heires in an Obligation or 〈◊〉 covenant by writing for him and his 〈…〉 or 〈◊〉 grant an Annuity for him and his â—…res in all these cases the Law chargeth the Heire after the death of the Ancestor with this Obligation Covenant Annuity Warranty yet with these three cautions that the party must by speciall name bind himself and his Heires for if the party in the bond Covenant Annuity or Warranty doth not bind himself as well as his Heires in such case the Heire shall never be bound 2. Some Action must be brought against the Heire whilest the Land or other Inheritance resteth in him unalienated away For if the Ancestor dye and the Heire before an Action be brought against him upon those Bonds Covenants or Warranties do alien away the Land then the Heire is cleaned discharged of the burthen 3. No Heire is further to be charged then the value of the Land descendeth to him from that Ancestor that made the charge and that not to be sold outright but to be kept in extent and at a yearly value untill the Debt or damage be run out Neverthelesse if an Heire that is sued upon such a Debt of his Ancestor doth not deale clearly with the Court when he is sued that is if he come not immediatly by way of confession and set down the true quantity of his Inheritance discended and so submit himself as the Law requireth then that Heire shall be charged of his owne other Lands Goods and money for this Deed of his Ancestor As if a man bind himself and his Heirs in an Obligation of a hundred pounds and dieth leaving but ten acres of Lands to his Heire if his Heire be sued upon the Bond and cometh in and denieth that he hath any by discent and it is found against him by verdict that he hath ten acres this Heire shall be now charged by his false plea of his owne Lands Goods and body to pay the hundred pounds though the Land be not worth ten pounds All words which do prove by specialty Words onely which do shew a man to be a Debtor to another is a good Obligation without binding the Executor that the maker of the Writing is a Debtor to another that is a sufficient Obligation and though the Executor or Administrator are not expressed yet the Law will charge them because they represent the Estate of the Testator but the Heire shall never be charged without expresse mention of the Heire Dyer fol 2 3. Acquittance for one Rent is a discharge of all former Rents Those cannot be heirs If a Rent be behind for twenty years and the Lord make an Acquittance for the last that is due all the rest are presumed to be paid and the Law will admit no proofe against this presumption Cokes Littleton fol. 373. A Bastard can be no Heire nor have any unlesse it be his owne Child A man attainted of Treason or Felony can be no Heire nor have an Heir though it be his
claiming under him with penalty in the Statute of 27. Eliz. Cap. 1. This doth not extend to the avoyding of any grant c. upon good consideration and bona fide if any such conveiance be made with clause of revocation or alteration at his pleasure by writing and after he shall bargaine demise sell grant convey or charge the same Lands c. for money or other good consideration the conveyance not revoked or altered then the conveyance c. shall be void against the Barganees c. and all claiming under them lawfull Mortages only excepted A Lease was made of a Messuage and Lands for yeares A grant of land Habendum the reversion if the Lessee so long should live and afterwards the Lessor by his Deed indented granted the Messuage and Land to another to have and to hold the reversion to the grantee for life cum per mortem sursum redditionem vel forisfacturam of the Lessee aut aliter acciderit reddendo inde annuitie to the Grantor and his heires when the said reversion shall happen nine shillings and foure pence per Annum The Lessee dieth the Grantor of the reversion distraineth for the arrearages of the rent aswell before the death of the Lessee as afterwards whereupon four points were clearely resolved upon by the Court. That by the Demise of a Messuage and Land for life the reversion thereof doth passe but by the Grant of a reversion land in possession doth not passe Lofields case 10. pars fo 107. Plowden 197. A grant of the reversion Habendum the land By the Grant of a Messuage and Land Habendum revertionem c. or life after the death of the Lessee c. that the Habendum is good for in judgement of law nothing but the reversion is granted by the Premises and as in Throchmertons case Plowden Coment fo 147. when the reversion is granted habendum the land the habendum is adjudged good so when the land is granted habendum the reversion and after the death of the Lessee c. is in consideration as much to say as to take effect in possession after the death c. Also the habendum had been good although no mention had been made either of the Land or of the reversion in the habendum for the Office of the habendum is to limit the estate of the land contayned in the Premises It was resolved that by the said reservation the rent shall not commence before the reversion fall in possession and these words cum revertio predict acciderit shall be expounded according to the intention of the parties which was not that the Grantee for life should pay the rent before that he may take the profits to make the rent of them That the distresse was well taken for the Arrerages after the death of the Lessee and not for the arearages incurred before Statute released by matter in Law A statute was acknowledged the 26. of May the Cognusee by his release Dated the 25. May before released to the Cognusor all demands from the beginning of the world untill the making therof and sealed and delivered the release as his Deed the 27. May following the statute is freely discharged for the day of the delivery is dies confectionis but if the words had been untill the date or day of the Date of these presents then otherwise it had been See Dier fo 307. Defeasance of a statute mis-recited the statute becometh single If a Defeasance be made of a statute which is recited to bee made the tenth day of May where indeed it beareth Date the first day of May the Defeasance is void for the Mis-prision of time for the Law saith that in so much as it may be that there were two statutes the one dated the first day and the other the tenth day the time of the date is materiall Plowden fo 393. Attornement needlesse A reversion granted for yeares for consideration of money doth passe without Attornement Coke 8 pars fo 941. for let the case be that there is Lessee for terme of yeares or life rendant-rent Afterwards the lessor by Indenture for the consideration of 50 l. demiseth and granteth the Premises to another for 90. yeares rendant 40 pounds per annum although the first Lessee doth never Attorne yet the second demise shall be good and shall passe as a Bargaine executed by the statute of 27 H. 8. whereunto there needeth no Attornemnt or Inrolement of the Deed because it is not but a terme for yeares and no Frank-tenement And note that if a man for money do enffeoffe Alien and grant Land to one and his heires or in taile or for life by deed indented and inrolled that doth amount to a bargaine and sale and the land shall pass without livery and Seisin Attornement needlesse A grant of a reversion of Land habendum the land from the end and expiration of a former Lease in being is a good lease and needeth no attornement A demise of the reversion of Land Attornement needles habendum the reversion of the land from the end and determination of a former lease in being is a good Lease and needeth no attornement If a man make a gift in taile or a Lease for life Remainder voide the remainder to his owne right heires this remainder is void and he hath the reversion in him for the Ancestor during his life beareth in his body in the judgment of the law all his heires and this appeareth in a common case that if Land be given to a man and his heires all his heires are so totall in him that he may give the land to whom he will So it is if a man be seised of Lands in Fee by Indenture make a Lease for life Remainder voide the remainder to the heirs males of his owne body this is a void remainder for the donor cannot make his owne right heire a purchasor of an estate taile without departing of the whole fee-simple out of him as if a man make a Feoffement in Fee to the use of himselfe for life and then to the use of the heires males of his body this is a good estate taile executed in himselfe and the limitation is good by way of use because it is raised out of the estate of the Feoffees which the Feoffor departed with for a limitation of a use to himselfe had been good without question Cokes Littleton fo 22. b. The King may make a Lease for yeares rendant rent to a stranger and that is a good reservation Conditions Entries and re-entries may not be given or reserved to strangers and the stranger may distraine for it or have an Action of Debt after the lease determined and that is by reason of his prerogative which he hath above all persons for he is not bound so strictly by the lawes as others are but in the case of a common person otherwise it is because that no rent which is properly
during his life If a rent be granted to one for life by deed and willeth that the Grantee and his heires distraine in the Lands charged for the same rent the grantee hath in this case fee-simple in the rent and not estate for life for the distresse is the creation of the rent-charge and therefore the limitation and creation of the rent-charge shall enure according to the effect and limitation of the distresse for therein he retaineth it for a terme which is as long as he hath in the Land and therefore hath not any certainty that terme will ever commence and therefore the grant void And where Lessee for yeares without any habendum granteth to another all his tearme which shall be to come at the time of his death shall be all void A Termor reciting by Indenture his terme and lease granted all his terme estate and interest to another habendum sibi assign suis immediate post mortem ipsius the Grantor and the case was ruled and adjudged that the habendum was void and the premises of the grant good to make the whole terme to passe forthwith Dier fo 272. If I have a rent in Fee if I grant it to another and stay there this is a grant for life but if I goe further and say habendum after the death of I. S. there all shall be void vide fo 2. If tenant for yeares of land grant out of that a rent-charge to another for the life of the Grantee the grantee shall not have a state of Frank-tenement because he cannot have a stare of Frank-tenement derived out of a Chattel reall but he shall have the rent during all the yeares if the Grantee so long shall live Plowden fo 525. If I have a rent in fee and grant it to another post mortem I. S. this grant is void for the nature of a grant is that the thing ought to passe forthwith If a man make a lease for yeares and afterwards the lessor grants a rent charge out of the Land that grant shall charge the reversion And this proveth that the Land and the reversion are nor two distinct things but that in the reversion the Land is contained Plowden fo 173. The Abbot leased land for life and afterward leased the reversion to have the Land from Michaelmas next after the first Lease ended by death surrender or forfeiture for 21. yeares this is a good Lease Plowden fo 146. A grant of a reversion Habendum the said reversion after the end and expiration of the Tenant for life Attornement needdes for sixty yeares this is a good grant without Attornement If I make a Lease to one for life and afterwards I grant the reversion to another habendum from the Feast of St. Michael next ensuing to him and his heires this grant is void because that no franke-tenement be it in possession reversion or remainder may be limited to commence at a day to come If I have a rent in Fee I may not grant it to commence in futuro or at a day to come but if I have land I may grant a new rent out of it to commence at a day to come for there I shall not have any particular estate in the meane for it was not in esse before but doth commence of new and therefore I may appoint it to commence when I will Pertinentiis A man makes a Feoffement of a house cum pertinent nothing passeth by these words cum pertinentiis but the Garden Curtilage and close adjoyning to the house and whereupon the house is built and no other Land though other Lands have been occupied with the house A man leased a house cum pertin no land passeth by these word but otherwise it is where a man leaseth a house cum omnibus terris eidem partin there the lands therewithall used doe passe If a man makes a Feoffement of a house ac omnes terras tenementa heriditamenta eidem messuagio pertin aut cum eodem occupata locata aut dimissa existent hereby the land used with the house doth pass Tenant in taile and the Lessee shall acknowledge the Tenements to be the right of one A stranger Lease by fine to bind Tenant in Taile and his issue and that A. shall grant and render by the same fine to the Lessee for 60. yeares the remainder to the Lessor and his heires and it was with proclamations which shall bind the taile after proclamation made If Tenant in taile make a Feoffement and a common recovery is had against the Feoffee Recovery the best to barr estates taile and remainders who voucheth tenant for taile who voucheth over c. there the tail shall be barred because that he when he commeth in as vouchee shall bee in the degree of tenent in taile and the recompence in value which he hath or may have shall goe in taile and therefore such manner of recovery is best and the surest way to barr the taile and all the remainders and the reversion also If A. be tenant in taile the remainder to B. in taile the remainder to C. in taile the remainder to B. in Fee A makes a Feoffement the Feoffees suffer a common recovery wherein B. is vouched he over the common vouchee In this case A. is not bound but B. and all the remainders over are barred For although that by the Feoffment of A. all the remainders were discontinued and the estates that B.C.D. had converted into meere rights and though the remainders may never be remitted before the estate taile in possession be recontinued yet in case of a common recovery which is the common assurance of the Land he that commeth in as vouchee shall bee in judgement of Law in privity of estate which he over had though the precedent estate wherupon the state of the vouchee dependeth be devested or discontinued Coke 3 pars fo 60. Tenement is a large word Tenement and Hereditament to passe not onely lands and other inheritances which are holden but also Officers Rents Commons Profits apprender our of lands and the like wherein a man hath any Frankenement and whereof he is seised ut de libero tenemento but an Hereditament is the largest word of all in that kind for whatsoever may be inherited is an hereditant be it corporeall or incorporeall reall or personall or mixt Vesturam terrae If a man hath twenty Acres of Lands and by Deed granteth to another and his heires Vesturam terrae and maketh Livery secundum formam chartae the Land it selfe shall not passe because he hath a particular right in the land for thereby he shall not have the houses timber trees and other reall things parcell of the inheritance but he shall have the vesture of the Land that is the Corne Grasse and Vnder-wood Sweepage and the like and shall have trespasse quare clausam fregit Herbagium terrae If a man grant herbagium terrae he hath a
the Mannor house c. And if it shall happen the said yearly rent of 100. pounds or any part or parcel therof to be behind unpaid in part or in all by the space of 40. dayes over or after any the said Feasts or dayes of payment thereof before mentioned at or on which the same ought to be paid as aforesaid that then and so often without any demand to be made at the said Mannors or either of them or other the Premises or to the person of the said H. P. his Executors and Assignes the said H. P. his Executors Administrators and Assignes shall forfeit loose and pay for and in the name of a paine or nomina paenae the summe of 5. pounds of c. and then and from thenceforth it shall and may be lawfull to and for the said A. B. C. D. their Executors Administrators and Assignes or any or either of them into the said Mannors Lands Hereditaments and Premises with the appurtenances to enter and distraine as well for the said rent of 100. pounds or any part or parcell thereof so behind and unpaid and the arrearages thereof if any bâ—… as also for the said sum of 5. pounds nomine paenae so to be lost as aforesaid and the distresse and distresses so there taken and had lawfully to lead drive take carry away imparke and impound and in pound to detaine and keep untill they shall be thereof lawfully satisfied and paid And if it shall happen the said yearely rent of c. A re-entry for non payment of rent though no demand be made of the rent vide plus fo 13. or any part or parcell thereof to be behind and unpaid in part or in all by the space of 40. dayes over or after any or either the said Feasts or daies of payments therof before mentioned at or which the same ought to be paid as aforesaid that then and so often and without any demand thereof as aforesaid it shall and may be lawfull to and for the said A. B. C. D. their or either of their Executors Administrators or Assignes into the said Mannors and Premises with the appurtenances to re-enter and the same to have againe retaine repossesse and enjoy as in their first and former estate any thing herein to the contrary contained in any wise notwithstanding Note when any summ nomine paenae shall be forfeited demande must be made precisely at the day a convenient time before sun setting In the one case in respect of the condition and in the other in respect of the penalty unlesse it be made without any demand as it is in this last case before Coke 7. part fo 28. Maundes case Demand of Rent and how it ought to be made to take benefit of a re-entry How to make a perfect demand to re-enter for non-payment of rent ANd if it happen the said rent to be behind and upaid by the space of ten daies after any the said Feasts c. The last instant of the last ten daies is only of effect aswell for the Lessee to be ready to pay it as for the lessor to demand it and to demand it the last instant of the tenth day is sufficient for him without any demande at the first day or Feast when it was first due Howbeit the Lessor must make demand the last instant of the tenth day before the sun setting or else he may not re-enter and if the lessor do not come upon the land the last instant of the last day for to demand the rent nor the Lessee is there to pay it the Lessor shall never enter because he ought to do the first act viz. to demand it and such demand shall not be untill the other be holden to pay it and that is not till the last instant of the last day which time is onely materiall for them both Plowden fo 173. If a man make a Lease for life or yeares rendant rent at such a Feast and if it be behind that he shall enter there the Lessor ought to come to the Land and demand the rent otherwise he shall never enter for there the rent is onely payable upon the land and the land is his Debtor and therefore though the Lessee be absent yet the lessor ought to demand the rent of the Land as of the principall Debtor and as that which may yeild a distresse if the rent be not ready thereupon for if he doth not make a demand he shall never enter for default of payment although the lessee be absent for the lessors being upon the land at the extreame time of payment of the rent and to testifie to the jury that he was there ad petendum redditum and not prove quod petebat redditum his being there before sun set and staying there after sun-set doth nothing availe Plowden Kedwelley vers Brande If a Lease be made rendant rent with re-entry for default of payment if the rent be behind and title of entry given and then the lessor distraineth for the rent he shall never enter afterwards for that rent then behind because that by the distresse he affirmeth the terme to have continuance Plowden fo 133. If the lessor made an acquittance to the Lessee for rent behind after the time in which the condition is supposed to be broken hee shall never re-enter afterward If one Lease two Acres for life rendant to him and his heires for the one 12. pence and rendant to him 12. pence for the other his heir shall not have the 12. pence last reserved because it was not reserved to him his heires and yet if he had reserved the rent without saying any more the law would have said that he and his heires should have had it but when hee saith reserving to him the law will not helpe any further then his owne words extend Plowden fo 171. Yeilding and paying to the Lessor How tenant in taile ought to reserve the rent reserved on his lease and to every person to whom the inheritance or the reversion of the Premises shall appertaine during the terme this is a good reservation for the law will distribute it to whom any limitation of use shall be made but it was agreed that the clearest and surest way was to reserve the rent yearly during the tearme and leave the law to make distribution without any expresse reservation to any person but it was resolved that all the said three severall wayes were good and effectuall Coke 8. part fo 69. Whitlocks case Queen Eliz. made a lease for yeares rendant rent Demand where it must be made payable at her receit of her Exchequer at Westminster or to the hands of her Bayliffe or Receavor c. with the usuall condition to bee voide for non for non payment of the rent afterwards the Q. granted over the reversion to another to his heires now where the patentee should demand the rent was the question And in this case it was
like particular right in the Land and shall have quare clausuam fregit but by grant thereof and Livery made the soile shall not passe as is abovesaid Herbagium Boscorum If a man let to B. the Herbage of his Woods and after grant all his lands in tenure possession or occupation of B. the Woods shall passe for B. hath a particular possession and occupation which is sufficient in this case and so it was resolved Seperal Pischar So if a man seised of a River and by Deed doe grant Seperal pischar in the same and maketh Livery and Seisin secundum for chartae neither the soile nor water doth passe for the grantor may take water there and if the River become dry hee may take the benefit of the soile for there passeth to the Grantee but a particular right and the Livery being made secundum formam chartae cannot enlarge the grant Aquam suaem If a man grant aquam suam the soile passeth not but the fishing within the water passeth Profits of Land But if a man seised of Lands in fee by his deed granteth to another the profits of his Lands Habendum to him and his heires and maketh Livery secundum form chartae the whole land it selfe doth passe for what is the Land but the profits thereof for thereby Vesture Herbage Trees Mines and all whatsoever parcell of that land doth passe If the Lessor by his Deed license the Lessee for life or years which is restrained by Condition not to alien without license to alien License to alien may not be countermanded and the Lessor dieth before the Lessee doth alien yet is his death no Countermand of the license but that he may alien for the License exempteth the Lessee out of the penalty of the Condition and it was executed on the part of the Lessor as much as might he And so it was resolved Mich. 3 Jacobi in Communi Banco Q If a man make a Lease to another for two and twenty years if the Lessee so long live and the Lessor and Lessee joyne in Grant by Deed of the terme to another and after the Lessee dieth within the terme the Grantee shall enjoy the land during the residue of the terme absolutely A man leased a house by Indenture for years Covenants the Lessee for him and his Executors did covenant and grant with the Lessor to repair the house at all times necessary The Lessee assigned it over to Hide who suffered it to decay the Lessor brought an Action of Covenant against the Assignee and it was adjudged by all the Court that the Action of Covenant lieth although the Lessor hath not covenanted for his Assignes for such covenant that extendeth to the supportation of the thing demised is Quodam modo appurtenant thereunto And in respect that the Lessee hath taken upon him to bear the charges of reparations the yearly rent was the lesser which trencheth to the Assignee Et qui sentit commodum sentire debet onus if the Lessee covenant to discharge the Lessor De omnibus onerious ordinariis extraordinariis and to repair the houses an Action lieth against the Assignee Coke 5. pars fol. 27. S. did covenant for him his Executors and Administrators with the Lessor that he his Executors Administrators or Assignes would build a Brick-wall upon parcell of the land demised S. assigned over his Terme to I. and for the not making of the Brick-wall the Lessor brought an Action of Covenant against the Assignee And thus it was agreed per totam Curiam 1. When the Covenant extendeth to a thing in esse parcell of the Demise the thing to be done by force of the Covenant is quodammodo annexed and appendant to the thing demised and shall remain with the Land and shall bind the Assignee although he be not bound by express words But when the Covenant extendeth to a thing which hath no essence at the time of the Demise made that may not be appurtenant nor annexed to the thing which hath not essence As if Lessee covenant to repaire the houses to him demised during the terme that is parcell of the Contract and extendeth to the supportation of the thing demised and therefore is quodammodo annexed and appurtenant to the house and shall bind the Assignee although he be not bound expresly by the Covenant But in the case at the Bar the Covenant concerned a thing which was not in esse at the time of the Demise made but to be newly made afterward and therefore shall bind the Covenantor his Executors or Administrators and not the Assignee for the Law will not annex the Covenant to a thing which hath not essence 2. It was resolved that in this case that if the Lessee had covenanted for him and his Assignes that they should make a new Wall upon any part of the thing demised that that shall bind the Assignee for although the Covenant extend to a thing to be newly made yet that is to be done upon the thing demised and the Assignee is to take the benefit thereof and therefore shall bind the Assignee by express words But although the Covenant be for him and his assignes yet if the thing to be made or done be meerly collaterall to the land and doth not touch or concern the thing demised in any sort the assignee shall not be charged as if the Lessee covenant for him and his assignes to build a house upon the land of the Lessor which is not any parcell of the Demise or to pay any collaterall summe to the Lessor or to a stranger that shall not bind the assignee because it is meer collaterall and no manner toucheth or concerneth the thing which was demised or which is assigned over and therefore in such case the assignee of the thing demised may not be charged with that more then any stranger 3. It was resolved that if a man demise Sheep or ther stock of Cattell or any other Goods personall for any time and the Lessee covenant for him and his Assignes at the end of the time to deliver such Cattell or Goods as good as the things demised were or such price for them And the Lessee assigne the Sheep over this Covenant shall not bind the Assignee for that is not but a personall contract and wanteth such privity as is between the Lessor and the Lessee and his Assignes of the Land in respect of the reversion But in case of a Lease of Goods personall there is not any privity nor any reversion but meerly a thing in action in the personalty which may not bind any but the Covenantor his Executors or Administrators which represent him the same Law if a man devise a Mease and Land for years with a stock or summe of money rendant rent and the Lessee doth covenant for him his Executors Administrators and Assignes to deliver the stock or summe of money at the end of the terme yet the Assignee shall not
THE LAW OF CONVEYANCES SHEWING The Natures Kinds and Effects of all manner of Assurances with the manner of their several executions and operations ALSO Directions to Sue out and Prosecute all manner of Writs of Extent Elegit and Judiciall Writs upon Statutes Recognizances Judgments c. A Warrant to Summon a Court of Survey And the Articles to be given in Charge and Inquired of in that Court With an Exposition of diverse obscure Words and Termes of Law used in Ancient Records c. AND ALSO Plaine Decimall Tables whereby may be found the true Values of Lands Leases and Estates in Possession or Reversion With a Concordance of Years c. By JOHN HERNE Gent. LONDON Printed by T. R. for Hen. Twyford and Tho. Dring and are to be sold at their Shops in Vine Court Middle Temple and at the George in Fleetstreet neer Cliffords Inne 1656. TO THE READER Courteous Reader THIS Tract for the drawing and right managing of all the Essentiall and Accidentall parts of the Laws touching Conveyances and Assurances which before lay diffusedly in the Books of Law in large Volumes are here now methodically handled being Composed by a very eminent Lawyer and Great Conveyancer in the City of London lately deceased which coming into my hands and being by men of good judgement held to be of excellent use I was perswaded to make the same publick for the Generall good which I have done accordingly And for the further advantage of those that desire knowledge in Records and in Buying and Selling Land c. I have added an Exposition of many obscure and abstruce words used in the Book of Doomsday and in other ancient Records Charters and Writings And likewise very exact Decimall Tables wherby the value of Lands sold or let in Possession or Reversion may easily be knowne And also a Concordance of years from King William the Conqueror to this present time in which the yeare of our Lord and the yeare of the Reigne of each King are plainly set down I doubt not but this peice will be of much use and little Charge which is the onely desire and end of J. H. THE LAW OF CONVEIANCES OR A perfect explanation of all the essentiall and accedentall parts of all sorts of instruments for the conveying of all things whether corporall or incorporall and what words actions and circumstances are required by Law thereunto THe Office of the Premises of the Deed is to expresse the Grantor Grantee Premises and the thing to be granted The Office of the Habendum is to limit the Estate and to explane the Premises Habendum And his Office is to give to enlarge and to be persuing to the Estate contained in the Premises of the Deed but his Office is not to be repugnant contrary lesser nor to exclude any of the interest before given in the Premisses for if it so doth the estate precedent given shall stand and the habendum shall be voide As if a Feoffment be made to one and his heires by the Premises of the deed Habendum to him and his heires during the life of I. S. Or if a Feoffment be made to one and his heires by the Premises of the Deed Habendum to the lessee for terme of his life those words of limitation during the life of I. S. or during the life of Tenant for life are void words for that the Habendum is repugnant to the Premises vide Lo. Cokes 2. Reports Baldwins Case Fol. twenty three touching repugnancy between the Premises and the habendum Sometimes the habendum doth controll and qualifie the generall implication of the estate which passeth by construction of Law by the Premises of the Deed as for example A Lease to two habendum to one for life the remainder to the other for life this limitation doth alter the generall implication of the joyntenancy which would have been without the habendum and therefore the habendum voide in that the Premises doth make them joynttenants the habendum would sever the joynter and make the one to have the whole during his life and the other the whole after him Plowden fo 133. vide Sir Ed. Coke 2. Par. fo 55. Buchlers case such a remainder is good And if two acres bee given to two habendum the one acre to one and the other to the other that is a voide habendum because it excludeth the interest of the one in the one acre and of the other in the other acre where the Premises of the deed hath made them joynt-tenants of every parcell Remainders Every remainder ought to have these severall properties and things following as Notes and Rules to discerne and know when remainders are good But note that where a remainder is once well raised by the Livery and Seisin though the perticular estate be afterwards avoided by condition in Law as by a recovery in wast or if a Feme Tenant for life disagree to the Livery after the death of her husband c. Yet he to whom the remainder is limited shall be Tenant in taile in remainder vi 1. part Shellies case fol. 101. good cases upon this An estate precedent made at the same time the remainder doth commence As if the lessor confirme the estate of his Lessee for yeares the remainder in Fee this remainder is void because the estate for yeares was made before the remainder and not at the time of the remainder If the lessor disseise his Tenant for life and then makes a new Lease to him for life the remainder in in Fee that remainder is void because the Tenant for life is remitted to the estate which was made long time before the remainder appointed so the estate precedent was not made at the same time of the remainder and therefore the remainder void So if the heire endow his mother the remainder in Fee this remainder is void though Livery and Sesin be made to the mother because the dowre hath relation to the death of her husband and so for that the estate precedent was not made when the remainder was appointed the remainder is voide The perticular estate must continue when the remainder shall vest and the remainder must commence in possession at the very time the perticular estate endeth as well in Wills as in the grants for there may not a meane time between them As if one make a Lease for life and that a day after the death of Tenant for life it shall remaine over this remainder is void because the first estate is determined before the appointment of the remainder So if one make a Leese for life upon condition that if he doth not such an Act that his estate shall cease and that then it remain over in Fee this remainder is void because it doth not vest during the estate precedent The remainder must be out of the lessor executed or executory at the time of the Livery and seasin made and at the time of the possession taken by
that reversio terrae is the returning of the Land which is as much in sence as my Lord Dyer defineth it as the Land returning so that reversio terrae is terra revertens which is the Land in a certain degree that is to say when it is discharged of the perticular estate and possession thereof is come thither where the revertion was Plowden 160 196. Creation of Estates The Creation of all manner of Estates by the Habendum of the Deed. TO have and to hold to the said William Hum her his Executors Administrators and Assignes from the ensealing and delivery of these presents unto the end and terme Habendum and for and during the whole time and terme of a hundred years from henceforth then next and immediately ensuing and fully to be compleated and ended if the said William Humber so long shall live and if it shall happen the said William to decease before the end and determination of that said Terme living the said Margaret then to have and to hold the same messuage c. from and immediately after the decease of the said William unto the said Margaret for and during the whole Terme of 100. yeares from thenceforth then next and immediately ensuing and fully to be compleated and ended if the said Margaret so long shall live and keep her selfe sole and unmarried and if it shall happen the said Margaret to decease before the end and determination of the said tearme or not to keep her selfe sole and unmarried during the said tearme then to have and to hold the said Premises unto Henry Humber Habendum To have and to hold to the said Edmund Clark and his Assignes immediately from and after the death and decease of the said Maud Symmes unto the end and tearme and for and during the whole time and tearme of 100 yeares from thenceforth next and immediately following fully to be compleated and ended if the said E C. so long live and to have and to hold the said Messuage c. to the said Jane C. and her Assignes immediately from and after the decease of them tâ—e said M. S. and E. C. unto the end and tearme of 100 years from thenceforth c Note that in such a Lease all those that shall take in remainder Note must be made parties to the Lease To have and to hold to the said R. I. and his Assignes from the feast of St. John Baptist last past before the date hereof c from hence forth from the ensealing and delivery of these presents unto the end and terme and for during the whole terme of his naturall life and from and immediatly after the death of him the said R. I. the said Messuage or Tenement and all other the Premises with all and singular their and every of their appurtenances to remaine and be unto the said I. I. and her assignes for and during the tearme of her naturall life And after the death of the said R. and I. c. To have and to hold unto the said R. I. his Executors and Assignes for the time and terme of 99 yeares from henceforth next ensuing fully to be compleated and ended if G.I. R. I. and M. I. the sons and daughters of the said R. I. partie to these presents by Joane his now wife or if any of them the said G. R. and M. children of him the said R. I. partie to these presents as aforesaid shall so long live To have and to hold to the Lessee and his heires during the lives of A. B. C. and the longest liver of them To prevent an Occupant this limitation shall prevent the occupant and yet the Lessee may assigne it to whom he will or if he hath already an estate for another mans life it were good to assigne his estate to diverse men and their heires during the life of ceste que vie For If A. hath Land conveighed to him for the life of B and A. dieth without making any estate of it whosoever first entreth into the Lands after the death of A shall have the Land during the life of B. For to the heire of A. it cannot goe because it is no inheritance nor to his Executors because it is not a testimentary estate that should goe to the Executors as goods and Chattels Limitations which do determine an estate without entrie or claime vide plus fo 17. To have and to hold to the Lessee quousque viz. untill I. S. come from Rome A Lessee to a woman quam diu casta vixerit or to a Widdow for her life si tam diu in pura viduitate vixerit or to another dummodo solverit talem redditum or quamdiu as the Lessee shall be dwelling on the Mannor or quamdiu the Lessee se benegesserit donee us quead quousque tam diu to have to the Lessee for 100. yeares if the Lessee so long live all these are limitations which do determine the estate without any entry or claime A Lease is made to A. and his assignes habendum to A. during his and the lives of B. and C. this is a good Lease for these three lives and the longest liver of them Lo. Coke 5. part fo 13. A Lease to A. and B. for their lives A. dieth B. shall have it during his life it is an interest But if a Lease be made to I. S. during the life of A. and B. there if one of them die the estate is utterly determined for that is a limitation Habendum reddendum To have and to hold unto the said I. W. his Executors and Administrators from and immediately after the time that the estate tearme and interest which the said I G now hath of in or to the Premises shall happen to be ended by the death forfeiture surrender or other expiration of the estate and terme of the said I G. formerly granted by coppy of Court-Roll by Sir S. P. Knight deceased to the said I G. and I W. and to one Do. White deceased for the tearme of their lives and the longest liver of them successively at the will of the Lord according to the custome of the Mannor of R. aforesaid which said Copy of Court-roll beareth Date the fifth day of Aprill in the ninth yeare of the raigne of our Lady Q. E. for and during the tearme of 99. years from henceforth then next and immediately ensuing and fully to bee compleated and ended Reddendum if the said I. W. A. W. and B. W. or either of them so long shall live yeilding and paying therefore yearely unto the said H. P. his Heires and Assignes during the said respective tearme hereby limited at the Mannor house of the said Sir H. P. at Saparton aforesaid the sum of thirteen shillings four pence of currant english money at the feasts of St. Michaell the Arch-angell and the Anuntiation of the blessed Virgin Mary by equall portions the first payment thereof to begin and to be made
the terme of his life without c. and from and after his decease to the use and behoofe of B. P. his wife for and during the terme of her life for her joynter And from and after the severall deceases of them the said H and B P. then to the use of the heires males of the body of the said H P lawfully to be begotten And for default of such issue then to the use of Dame F. P. for and during the terme of her life untill such time as she the said Dame F. or any other by her allowance shall by any publick act by him or them done or suffered to be done seek endeavour To the use limited for life untill she shall practise to do an act or put in practise for to avoide or question the joynter of the said B P either in part or in all or any other estate grant Lease or use whatsoever now made or at any time hereafter to be made and limited by the said H P of any part or parcell of the said Mannors Lands and other the Premises and immediately from and after such publike act as aforesaid or after the decease of the same Dame F then to the use of H P Esquire son of the said c. untill c. And for and concerning the inclosed ground and Park to the use and behoofe of the said H P for his life To the use of a woman for part of her Joynter Joynter by way of the lymitation of a yearely anuity and after his decease to the use of the said Dame G. for terme of her life for part of her Joynture And after her decease to the use intent and purpose that such other wife as the said H P. shall have at his decease other then the said Dame G shall and may receive and take out of the said Parke ground and other the last mentioned Premises one yearly rent of 200 pounds of lawfull money of England for the terme of the life of such wife for her joynter the said rent to be paid at the feast of St Michael the Arch-angell and the anuntiation of our Lady by equall portions And after c. to such uses intents and purposes Vses limited to ones last will and testament and for want of such will to any other uses c. vide plus 18. 2. 8 Vses first of all raised for divers mens lives as the said H P by his last will and Testament in writing or by any writing or by any writing to be made by him sealed and subscribed shall limit and declare and for default of such limitation or declaration to the use and behoofe of the said H P. and his heires for ever That is to say to the use and behoofe of the said F M and of his Assignes for and during the joynt lives of him the said F M. and the said E M his son without impeachment c. and from and after the decease of the said F in case the said F shall fortune to depart this present life during the life of the said E M. his son then as for and concerning the mannor and Lordship of T. with all his rights members appurtenances to the use and behoofe of the said A. now wife of the said F F.M. and of her assignes for and during the terme of her naturall life if the said E. M. the son shall happen so long to live and from and after the decease of the said E. M. Vses raised for satisfaction of Joynter dower then as for and concerning the Scite or chiefe Mansion house c. to the only use and behoofe of the said B. for terme of her naturall life for and in full satisfaction and recompence of all such Joynter and Dower as to the same B. shall or of right ought to belong or appertaine by from and after the decease of the said E. M her husband And as for and concerning the residue of the said Mannor of c. to the onely use and behoofe of the said A. and of her assignes absolutely for tearme of her life in full satisfaction of the Joynter of the said A. And then after the lives ended the use of the reversion expectant on those lives is setled And as for and concerning the reversion and reversions remainder or remainders of the said Mannors c. as the said uses estates and interest therof herein before lymited or expressed shall be fully ended and determined and for and concerning the said Mannor of c. as the estates and interests therof before limited or expressed in these present Indentures shall fully end and determine Then to the use and behoofe of the said F. M. for terme of his naturall life without c. and from and after his decease then to the use and behoofe of E. M. for terme of his life without c. and from and after his decease to the use and behoofe of the first son to be begotten by the body of the said E. M. and of the heires males of the same first son lawfully begotten To the use of every other the sons as they shall be in seniority or age Lands conveighed to uses for the raising of portions for daughters and so to the second son unto the tenth son And for default of such issue then to the use and behoofe of every other the sons to be begotten by the body of the said E. M. successively as they shall be in seniority or age and of the heires males of their severall bodies lawfully begotten And for default of such issue then to the use and behoofe of all and every the daughters which the said E. M. shall have begotten on the body of the said B. at the time of his decease being then unmarried and of their assignes from and after such time as each of them shall have accomplished their severall ages of 18 yeares or be married to and untill such time as every of the same daughters successively one after another as they shall be in seniority or age shall or may levy receive and take to every of their own propper uses and behoofes of the rents profits and issues of the Premises the severall summes of 300. pounds a peece of currant money of England or otherwise shall be fully satisfied contented or paid of the said severall summes by such person or persons to whom the next immediate reversion or remainder of the premises shal then by the intent and meaning of these presents of right belong and appertaine And from and after such time as the said severall sums of 300. pounds shall be fully levied received or paid as is aforesaid c. and for default of such daughters whichsoever of them shall first happen Then to the use of T. M. second son of the said F. M. for tearme of his life and so on with an intaile as before and for default of such issue then to the use and behoofe of the said E.
Recovery c. by transmutation of the possession out of the estate of the Feoffees conusees c. Coke 6. part fo 27. Twines case fo 83. Lo. Coke 3 pars IF a man make an estate for life Conditions Vide plus fo 17. 6. fo 35. the remainder in taile the remainder over in Fee upon condition that any of them in remainder shall doe a certaine act then if hee doth not do it the Feoffer and his heires may enter without any words of re-entry in the proviso and thereby shall defeate the estate in possession and all the remainders for he that entreth for a condition broken and a condition in Deed is in of such estate he had before the condition made but otherwise it is where an entry is made upon a condition in law Coke 8. pars Whittinghams case Vide. fo 50. b. For if Lessee for life or yeares grant a Rent charge out of the lands or make a Lease of some part of the terme or doth acknowledge a Statute or Recognizance and then afterwards doth make a Feoffment in Fee or commit any acts which are forfeitures in Law or doth surrender his estate to his Lessor yet the Lessor shall hold the Land charged And note that a condition in law which by force of a Statute giveth a recovery is stronger then a condition in Law which giveth an entry without a recovery For if Lessee for life make a Lease for yeares and then entreth into the land and doth Waste and the Lessor recover in an action of Waste against the Lessee for life he shal avoid the Lease made before the Waste committed But if the Lesse for life make a Lease for yeares and then entreth and makes a Feoffement in Fee the Lessor shall not avoide the Lease for yeares So if the Tenant make a Lease for yeares and then is attained of Felony or dieth without heire although the Lord recover by Writ or escheat yet he shall not avoide the tearme 8. pars fo 44. Whittinghams case Remainder If I make a lease for life upon condition that if the Lessee doth such an Act hee shall have Fee and he doth it accordingly there he shall have Fee because he is privy to the condition and therefore shall take the benefit therof Remainder Lessee for 5 yeares upon condition that if he pay me 20 pound within two yeares that then he shall have Fee the Fee passeth out of the lessor forthwith Remainedr So where a Lease is made for life upon condition that if I. S. marry my daughter during the Estate for life that then it shall remaine unto him this is a good remainder and yet it doth commence upon condition for there is an estate whereupon a remainder may bee founded and the condition goeth not to the destruction of the particular estate If I make a Lease for yeares the remainder for life upon condition that if he in remainder doth such an act that the remainder shall be void now before the condition broken the remainder is good and in him to whom it is appointed But if the condition be broken then the remainder is out of him and in the person of the Lessor againe Lessee for life the remainder to A. his wife for her life if she live so long sole and unmarried the remainder to D. their son for his life the remainder to D. is good though it commence upon a conditon because the particular estate continueth and the condition goeth not to the destruction of the particular estate and the first remainder doth vest during the perticular estate which maketh the latter to be good though it doth commence upon the condition but quaere whether the second remainder shall begin either upon her marriage or her death If a man for him and his Heires warrant lands to one and his Heires that is a generall Warranty Warranty and what words make a generall Warranty for that it is not restrained against any person in certaine Coke 1. pars fol. 2. This word give in a Feoffment importeth a generall VVarranty against all men during the life of the Feoffor And this word Grant in a Chattel-real doth import a VVarranty in it selfe alone without any clause of VVarranty so as there be in the Deed no speciall matter to qualifie the VVarranty by some speciall Covenant But this word Concessi or Demisi in case of Frank-tenement or Inheritance doth import not VVarranty Coke 5. pars fol 18. The clause of without impeachment of waste Waste in toto and the full definition of the word without impeachment of Waste and what is Waste giveth power to the lessee which shall produce an interest unto him if he doth execute his power during the privity of his Estate and therefore to examine it in reason these words Absque impetitione vasti are in effect as without demand for waste for Impetitio is derived of In and peto and petere is to demand and petio is a demand and sine impetitione is without any manner of demand or impeachment Then this word Demand is of a large extent for if a man disseise me of my land or take my Goods if I release unto him all Actions yet I may enter into the land or seise my goods for by the release of the Action the right or interest is not released but if in such case I release all Demands that shall exclude me not onely of my Action but also of my entry and sciser and of the right of my land and property in my Chattels But if the words had been Absque impetitione vasti per aliquod breve de vasto then the Action onely shall be discharged and not the property in the Trees but the Lessor after the cutting of them may seise them and the diversity appeareth in 30 E. 3. 44. in Walter Idles case where a Lease was made without being impeached or impleaded for waste whereupon it was gathered that these words Without being impeached for waste were not sufficient to barr the Lessor of his property And that if the Lessor had granted that the Lessee might do waste he by that hath power not onely to do waste but also to convert it to his owne use And the opinion of Wray chiefe Justice and Manhood cited in Herlakendens case was not judiciall but prima facie upon Arbitrement without any argument Coke 11. pars fol. 82. When Tenant in fees granteth all his estate to another the Grantee shall have no Fee-simple for want of these words Heires but estate for life but his estate in such case shall be without impeachment of waste as the estate of the Grantee of Tenant in taile shall be and the Feesimple shall be in Nubibus there as well as it shall be of an estate taile and there if he doth commit Treason and dieth the Fee-simple shall escheat to the Common Lord of whom the land is holden for that the blood is corrupt between him and his
made to A. for life the Remainder to B. for life the Remainder to C. in Fee in this case where it is said in the Register and in Fitz. R. B. that an Action of waste doth lye it is to be understood after the death or surrender of B. in the mean Remainder for during his life no action of waste doth lye But if a Lease for life be made the Remainder for years the remainder in fee an action doth lie presently during the term in Remainder for the mean terme for years is no impediment If waste be done Sparsim here and there in Woods the whole Woods shall be recovered or so much wherin the waste Sparsim is done And so in houses so many roomes shall be recovered wherein there is waste done But if waste be done Sparsim throughout all shall be recovered it hath been said that if the Hall be wasted the whole house shall be recovered because the whole house is denominated of the Hall but latter authority is to the contrary In many cases a Tenant for life or years may fell down timber to make reparations albeit he be not compellable thereunto and shall not be punished for the same in any action of waste As if a house be ruinous at the time of the Lease made if the Lessee suffer the house to fall down he is not punishable for he is not bound by the Law to repaire the house in that case and yet if he cut down Timber upon the ground so letten and repaire it he may well justifie it the reason is for that the Law doth favour the supportation and maintenance of houses of habitation for mankind If the Lessor by his Covenant undertake to repaire the houses yet the Lessee if the Lessor doth it not may with the timber growing upon the ground repaire it though he be not compellable thereunto A man hath Land wherein there is a Myne of Coals or the like and maketh a Lease of the Land without mentioning any Mynes for life or years the Lessee for such Mines as were open at the time of the Lease made may dig and take the profit thereof but he cannot dig any new Myne that was not open at the time of the Lease made for that should be adjudged waste And if there be open Mynes and the Owner make a Lease of the land with the Mines therein this shall extend to the open Mynes only and not to any hidden Myne but if there be not open Mynes and the Lease is made of the land together with all the Mynes therein there the Lessee may dig for Mynes and enjoy the benefit thereof otherwise these words should be void A. enfeoffeth B. to the use of A. himself for life Vses and remainders of Uses vide plus fo 18. Touching revocations see 6 pars fol. 32. 28. 63. 10. pars fo 78. 143. 1. pars fol. 111. 173. 175. 3. pars fol. 5. 82. 83. Plowden Com. fol. 102. 5. pars fol. 90. and then to the use of B. in taile and then to the use of C. in fee with Proviso and liberty to revoke the uses and to limit new Uses if A. survive B. and after A. makes a Feoffment and B. dieth whether A. may limit new Uses against his owne Feoffment is the question He cannot because a livery is of such force that it giveth and excludeth the Feoffor not only of all present Rights but of all future Rights and Titles Admit the Proviso had been onely that if A. survived B. that then he might revoke the first uses in this case it were very cleare that after the said Feoffment he might not revoke for then he should have the land againe against his owne Feoffment which were against reason In this case the Proviso goeth further viz. And that he may alter change c. admit then that he should have power to revoke the ancient uses and power to limit new Uses to a stranger how should this stranger have this new use why surely by force of the first First Feoffment made by A for out of that all the present and future uses do grow And the stranger should have this use in manner by the said A. against his last Feoffment and own livery which may not be So if a man covenant to do a collaterall act in this case before the breach thereof a release of all Actions Suits and Quarrels doth not availe for before the breach thereof there is not any duty or cause of Action but the breach ought to precede and so it was adjudged but in the same case a release of all Covenants shall be a bar to the Covenant But if the power of Revocation had been present as the usuall Provisoes of Revocations are then it may be extinct by a Release made by him which hath such power to any that hath estate of Frank-tenement in the land in possession remainder or reversion and therefore the estates which before were defeisible by the Proviso are by such release made absolute Albaines case 1. pars fol. 3. There is a diversity betweene a Condition that is compulsary and a power of revocation which is voluntary for a man that hath power of revocation may by his own act extinguish his power of revocation in part as by levying a Fine of a part or making of a Feoffment of a part and yet the power shall remain for the residue because it is in nature of a Limitation and nor of a Condition and so it was resolved in the Earle of Shrewsburies case in the Court of Wards Pasch 39 Eliz. Mich. 40. and 41 Eliz. but destroy a Condition in part and it is destroyed in the whole for a Condition cannot be apportioned He that hath power by Proviso to alter uses in land may revoke and alter part at one time and part at another and so to the residue till he hath revoked all But he may revoke but one self part at one time unless he hath new power of Revocation to the Uses newly limited Where a Revocation is to be made by Deed indented to be enrolled that is as much to say as by Deed indented and inrolled for no Revocation shall be in that case untill the Deed of Revocation be inrolled And therefore a Fine levied by him that hath such power of revocation before the Deed of Revocation be inrolled doth extinguish the power of Revocation But if a Feoffment be made by A. to divers uses with Proviso that if B. shall revoke that the Uses shall cease then B. may not release this power and a Fine levied and a Feoffment by him shall not extinguish it for the power of B. is meerly collaterall See many good causes more to this purpose fo 51. and the land doth move from him nor the party shall not be by him nor under him But a Fine Feoffment or Release by A. if the power had been reserved to him shall extinguish it 1. pars Diggs case fol. 173. Where
because that by a Release of Demands all the meanes and remedies and the causes of them which any hath to Lands Tenements Goods Chattels c. are extinct and by consequence the right and interest to the thing it self But note although that a Release of all Demands be of so great extent yet that extendeth not to such Writs by which nothing is demanded neither in fact nor in Law by doing onely to releive the Plaintiff by way of discharge and not by way of demand A Release of all Demands is not a bar in a Writ of Error to reverse an Outlawry By a release of all demands Rent-seck all Actions mixt Warranty which is a Covenant reall and all other Covenants reall and personall Estovers all manner of Commons Profits apprender Conditions before they be broken or performed or afterwards Annuities Recognizances Statutes Obligations and Contracts c. are released and discharged If a man by Dead covenant to make a house or to make an Estate and before the Covenant broken the Covenantee release to him all Actions Suits and Quarrels that is no discharge of the Covenant because that at the time of the Release nothing was due nor was it any debt or duty or any cause of Action in esse but in this case of all Covenants is a good discharge of the Covenant before it be broken A Release of all duties extendeth to all things due which is certaine and therefore dischargeth Judgments in personall Actions and Executions also If the Plaintiff after Judgments release all Demands the execution is discharged By a Release of all Quarrels all Causes of Actions are released although no Action be then depending Coke 10. pars fol. 51. 38 H. 8 Release 6 H. 7. 15. 19 H 6. 3. 4. 40 E. 3. 22. 5 Eliz. Dyer 217. By a Release of all Suites the execution is released If a man be in Execution If a man make a Lease for ten years the remainder for twenty years he in remainder releaseth all his right to the Lessee he shall have an estate for thirty years for one Chattell cannot drown in another and yeares cannot be consumed in years Cokes Littleton 260. b. Co. 6. pars fo 47. a Release of all Debts or Duties he is to be discharged of the Execution because the Debt or Duty is discharged If Judgment be given in an Action of Debt and the body of the Defendant is taken in execution by Capias ad satisfaciendum and afterwards the Plaintiff releaseth the Judgment by that the body shall be discharged of the execution In an Action of Debt brought by Hoe in the Kings Bench If a rent be behind for twenty years and the Lord do make an Acquittance for the last that is due all the rest are presumed to be paid And the Law will admit no proof against this presumption Cokes Littleton fol. 373. Phelix Marshall was baile for the Defendant and afterwards before any Judgment given the Plaintiff released to Pehlix all Actions Duties and Demands and after Judgment was given against the Defendant and upon a default of the Defendant Scire facias went out against Phelix Marshall who pleaded the said generall Release upon which plea the Plaintiff demurred And it was adjudged that this Release shall not bar the Plaintiff for the words of the baile are conditionall viz. Si contigeret predictum defendentem debit dam. ill prefat quer minime solvere aut se prisonae Mareshalss ea occasione non reddere c. So that it may not be by the said Baile any certaine duty untill Judgment be given for before that none may know to what summ the Debt and Damages will amount to he which is baile for the Defendant is not bound in any certaine summ at the first but his Recognizance being generall shall be reduced to a certainty by the Judgment and not before The effect of a speciall bail given in the Kings Bench. The Condition c. That where the above named H. C. and one R. H. in their proper persons have undertaken so the above bounden C F. by a Recognizance or Mainprise taken and knowledged before the Justices of the Kings Bench at Westminster that if it happen the said C. F. to be condemned in any Action at the suit of T. B. Esquire that then the said R. H. and H. D. did grant all Costs and Damages and Executions which should be judged to the said T. B. in that behalf should be levied to the use of the said T. B. of the Lands and Chattels of the said R. H. and H. C. if so it be that the said C. F. do not pay the same Damages himself to the said T. B. or restore and yeild himself againe by meanes thereof to the Prison of the Marshall of the Marshalsey if the said C. F. his Heires c. and every of them at all times hereafter from time to time do well and truly acquit discharge or save harmlesse the said H. C. and R. H. their Heires c. and every of them against the said T. B. his c of and for the breach and forfeiture of the said Recognizance and Mainprise and of and for the execution of the said Action whereupon the same Recognizance and Mainprise was so taken and knowledged and also of for and upon all other Bonds Obligations and Recognizances wherein the said H. C. standeth bound to any other person or persons for and in the behalf of the said C. F. that then c. Cases in Law of divers and sundry manners and matters I. A. by Indenture bearing date the third of May Livery and seisin void but if in this case Livery be made by the Lessor himself at the day that this Lease in futuro is to commence then the Lease is good but if by Attorney then void vide plus de hoc fol. 50. fol. 51. leaseth a Messuage to B. to have to the said B. from the Feast of the Annunciation of our Lady then next coming for the terme of his life and Livery is executed the tenth of March following the Livery in this case is void because every Livery ought to vest the Freehold in him to whome the Livery is made at the time of the Livery and this Grant did not commence untill the Annunciation following so that the livery could not bring a possession before the terme was to begin and where there is no Estate present whereunto the livery may be annexed nor whereunto it may unite in the mean time then such livery is void Plowden fol. 156. An estate of Frank-tenement at the Common Law may not commence in futuro A Frank-tenement be it in possession reversion or remainder may not be limited to commence at a day to come but ought to take effect forthwith in possession reversion or remainder as if a man make a lease for life to begin at Mich. next that is void so if a man make a lease for life to have from the date
of the Indenture or from the day of the date or from the day of the making or from the day of the sealing and delivery such leases are meerly void for the date is excluded and the lessee may not enter untill the morrow for when a man makes a lease for life to commence at a day to come he may not make present livery to a future estate and therfore in such case nothing passeth and Livery or Attornment afterwards will never make a void Grant to be good Coke 5. pars fol. 94. 2. pars fol. 55. If a Lease be made for years or at Will by Deed and Livery and Seisin be made to the Lessee yet he is but Tenant for years or Tenant at Will according to the limitation of the Deed and not Tenant for life by force of the livery But if a lease be made for years the Remainder to a stranger for life and livery is made to the Lessee who enters this livery shall vest the Remainder in the stranger and if the Lessee enter by force of his lease before livery be made unto him then the Remainder is void Condition where an enâ—ry is reserved to a stranger vide casus tertium prox sequent A man enfeoffeth one upon condition that he shall pay ten pounds to B. and upon default that B. shall enter now if the rent be not paid the Feoffee may enter in Law and Conscience and not B. for he is a stranger to the Condition and B. hath no remedy in Conscience to have the land And when the Feoffment is made upon Condition although it doth not speak that for default of payment he may re-enter yet that is implied in the word Condition and as to the words that B. shall enter by default of payment they are void words Doctor Student fol. 93. Condition for non-payment of rent and then an Assise is brought or a Distress taken If a Condition be broken for non-payment of rent yet if the Feoffor bring an Assise for rent due at that time he shall never enter for the Condition broken because he affirmeth the rent to have continuance and whereby waiveth the condition and so it is if the rent had had a clause of Distresse annexed unto it if the Feoffor had distrained for the rent for non-payment whereof the condition was broken he should never enter for the condition broken but he may receive that rent and acquit the same and yet enter for the condition broken Acceptance of rent barreth a re-entry But if he accept a rent due at another day after he shall not enter for the condition broken because he thereby affirmeth the lease to have continuance Coke Lit. fol. 211. b. If a man enfeoff one by Indenture by which it is covenanted and agreed that the Feoffee shall pay to a stranger and his Heires ten pounds per annum at a certaine day and if he faile that the stranger and his Heires may enter in that case if the Feoffee doth not pay it the stranger shall have use of the land in conscience and not by the common law and shall have a Subpaena to constraine the Feoffee to make an estate unto him But in the said case if it had been upon condition that a stranger may enter for non-payment of the rent there the Feoffor himself shall enter and not the stranger for none may enter for a condition annexed to Fee but for lives and when the Feoffor hath entred he is not holden to convey the land to a stranger that ought to have the Rent Doctor Student 100. 101. In Mary Portingtons case Coke 10. pars fol. 39. Incidents to an estate taile It was observed and agreed for Law that to an Estate-taile there are three manner of incidents some by the common Law some by Act of Parliament and some by custome by the common law they are such which are not restrained by the Statute and may not be restrained by any condition 22 E. 3. 17. as Dower and Tenant by the curtesie after issue are incident to an Estate taile and may not be restrained by any condition An Estate taile cannot be restrained by any condition or limitation vide Coke 9. pars fol. 128. 6. pars Sir Anth. Mildmaies case Recovery fraudulent Also the Estate of him and Tenant in taile after possibility are dispunishable for Waste And collaterall Warranty is a bar to the Estate-taile and so is a common recovery also and none of these may be restrained by any condition or limitation by the Statute law as to make leases by the Statute of 32 H. 8. cap. 36. and to levie a Fine by the Statute 4 H. 7 cap. 24. and 33 H. 8. cap. 36. to bar Issues and none of those which are incidents to that Statute by act of Parliament may be restrained by condition for when a man maketh a Gift in taile he tacire doth give these incidents thereunto And therefore to restraine them by condition or limitation shall be repugnant And as to the case upon the Statute of 11 H. 7. it was answered that when the husband for advancement of the wife with competent Joynture and preferment of their Heires of their two bodies engendred hath caused an estate to be made to himself and to his wife in tail and after the deaths of the husband the wives to disinherit the issues of their former husbands suffer recoveries and convey the land to strangers of the bloud of the husband such recovery was worthy by the Parliament to be noted with the marke to be suffered by Covin And the act of the wife either when she is sole or with her and her second husband is so odious that a recovery had upon a good title against them by Covin is made void by the said Act. Fraud So in the said Acts of 32. H 8. and 14. Eliz. when a common recovery was had against Tenant for life to the prejudice of those who had the inheritance that may be well termed covenous and by collusion and yet in the same case when tenant for life the remainder to A. in taile the remainder to B. in taile c. with divers remainders over and Tenant for life suffereth a common recovery wherin he voucheth A. and he the common vouchee that shall bind all the other remainders for no Covin or collusion may bee supposed when the next in remainder in taile which hath the immediate inheritance is vouchee as it was adjudged in Jennings case Fraudulent conveyances to defraud purchasors Vide plus de hoc fo 18. 27 E. cap. 4. every Conveyance Grant Charge Lease Estate incumbrance and limitation of use of Lands Tenements or Hereditaments made since the beginning of her Majesties Raigne or hereafter to be made for the defrauding of Purchasors of the Land it selfe or any part or profit out of it shall be void against the person so purchasing for money or other good consideration and against all
be charged with this Covenant for although the rent reserved was increased in respect of the stock or the summe yet the rent doth not issue out of the stock or summe but out of the land onely and therefore as to the stock or summe the Covenant is personall and shall bind the Covenantor his Executors and Administrators and not his Assignee for it may be wasted or otherwise consumed or perished by the Lessee and therefore the Law cannot determine at the time of the Lease made that such Covenant shall bind the Assignee If a man demise or grant land to a woman for years and the Lessor covenanteth with the Lessee to repaire the houses during the terme the wife taketh a husband and dieth the husband shall have an action of Covenant as well upon the Covenant in Law upon these words Demise or Grant as upon the expresse Covenant But it was resolved by Wray chief Justice and all the Court that this word Concessi or Demisi in case of Frank-tenement or inheritance doth not import any Warranty see the Statute of 32 H. 8. cap. 24. what act was resolved to extend to Covenants which touch or concern the thing demised and not to collaterall Covenants Demise Grant Dier Upon these words Demise grant in Leases for years or lives 9 Eliz. 257. the Lessee and his Assignes shall have a Writ of Covenant alwaies provided there be no speciall Covenant following after in such Leases for then this generall Covenant is qualified and the former word Demise Grant shall loose his operation Coke 4 pars Nokes case And if a man be bound in an Obligation to perform all Covenants Grants Articles and agreements c. in such Indenture now the Lessee or his Assignes upon eviction may bring an Action upon the Obligation by reason of the Covenant in Law which is broken viz. Demise Grant Co. 4. pars Assignment of Estate If Lessee assigne over his terme the Lessor may charge the Lessee or his Assignee at his election but if the Lessor accepteth rent of the Assignee he hath determined his election and shall not have an action against the Lessee afterward for rent due after the assignment no more then if the Lord once accept the rent of the Feoffee he shall not avow upon the Feoffor Co. 3. pars Walkers case Proviso that the Lessee or his Assignes shall not alien to any person without license of the Lessor afterward the Lessor gives license to alien or demise the land or any part thereof the Lessor doth alien accordingly this one license hath determined the Condition so that no alienation to be made afterwards can break the Proviso be it done by the Lessee himself or his Assignes so that a dispensation with one alienation is a dispensation of all other 4 pars â—ol 119. A Lease was made to three upon Condition that they or any of them should not alter without the assent of the Lessor after one aliened with his assent then the other two aliened without license the Condition being determined to one by license of the Lessor was determined in all and so adjudged And the case in Dyer fol. 334. was denied for Law 4. pars fol. 119. Note that a Condition may not be apportioned or divided by the acts of the parties 4 pars fol. 119. Recovery Recovery against Baron and Feme by Writ of entry in the Post where the wife is Tenant in taile and they vouch over and so the demandant recovereth against Baron and Feme and they over in value that shall bind the Taile and the Heire of the Wife This assurance was made by the advice of Brudnell and other Justices Quere de hoc Where a Writ of entry in the Post is brought against Tenant for life to bind the Feoffees he ought to pray aid of him in reversion and then they to vouch upon the joynder c. and such a recovery with voucher is used to dock the taile in ancient Demaine upon a Writ of Right and Voucher ever If an Obligation of 100 l. be made with condition for payment of 50 l. at a day Tender and at the day the Obligor tenders the money and the Obligee refuseth the same yet upon an action of debt upon the Obligation if the Defendant plead the tender and refusall he must also plead that he is yet ready to pay the money and tender the same in Court but if the Plaintiff will not then receive it but take issue upon the tender and the same be found against him he hath lost the money for ever If a man be bound in two hundred quarters for delivery of a hundred quarters if the Obligor tender at the day the hundred quarters he shall not plead Uncorprist because albeit it be parcell of the Condition yet they be bona peritura and it is a charge for the Obligor to keep them and the reason wherefore in the case of the Obligation the summe mentioned in the Condition is not lost by the tender and refusall is not onely for that it is a duty and parcell of the Obligation and therefore is not lost by the tender and refusall but also for that the Obligee hath remedy by Law for the same But if a man make a single Bond or knowledge a Statute or Recognizance and afterward make a Defeasance for the payment of a lesser summe at the day and the Obligee or Cognisee refuse it he shall never have any remedy by Law to recover it because it is not parcell of the summe contained in the Obligation Statute or Recognizance And in this case in pleading of the tender and refusall the party shall not be driven to plead uncorprist or to tender it in Court. Neither hath the Obligee or Cognusee any remedy by Law to recover the same summe contained in the Defeazance And so it is if a man make an Obligation of a hundred pounds with condition for delivery of Corne or Timber c. or for the performance of an Arbitrement or the doing of an act that is collaterall to the Obligation that is to say is not parcell of it and therefore a tender and refusall is a perpetuall Bar. Tender upon a Mortgage If the Condition upon a Mortgage be to pay to the Mortgagee or his Heirs the money c and before the day of payment the Mortgagee dye the Feoffor may not pay the money to the Executors of the Mortgagee for in this case the money ought to be paid to the Heire Et in hoc casu designatio unius personae est exclusio alterius expressum facit cessare tacitum And the Law will never seek out a person when the parties themselves have appointed one vide Coke 5. pars 96. Goodales case Dyeâ— 2 Eliz. fol. 181. But if the Condition be to pay the money to the Feoffor his Heires or Executors then the Feoffee hath election to pay it either to the Heire or Executors Payment on a
may not be apportioned nor divided B. extinguishment 49. conditions 193. Suspension If a Lease be made for yeares rendantrent upon condition of non payment by such entry of the lessor into parcell of the land leased the condition is suspended in all And if the Lessor after such entry make an alienation of this parcell to a stranger the condition is thereby destroyed and extinct in all for the condition which is a thing entire may not be apportioned by the act of him which is to take a vaile thereof But by the act of the Law or by the Act of him which is charged with the condition the condition may in some speciall cases be apportioned An Obligation is made solvendum numquam this solvendum is void and the thing presently due 21 E. 4. 36. Obligation A. is bound to B. solvendum eidem A. this is a good obligation and the solvendum is void for the plaintiff may declare upon a solvendum to himselfe 4 E 4. 29. An annuity granted pro concilio impendendo or a Feoffment ad erudiendum filium or ad solvendum ten shillings is a condition without words conditionall Condition otherwise the party hath no remedy If the Lessor enter upon his Lessee for terme of yeares and make a Feoffment in Fee with Livery the rent is suspended for ever Suspention of rent Re-entry upon such as faile to pay their Rent at the day although the Lessee re-enter for it is a tortious entry And if it happen c. That then and from thenceforth this present Demise and grant onely in respect and having regard to the state and interest demised or granted or hereby mentioned or intended to be demised or granted to the said A.B. C. and D. and every of them which shall make default of payment of the said yearely rent in such manner and forme as is aforesaid aforesaid to be utterly void and of none effect and that then and from thenceforth at all times then after it shall and may bee lawfull to and for the said Lessor his heires and Assignes into the said Messuages or tenement Lands Tenements Hereditaments and Premises with their and every of their appertenances onely in respect and having regard to the estate and interest demised and granted or hereby mencioned c. to such of the said A. B. C. D. as shall make default of payment of the said rent aforesaid in manner and forme aforesaid wholly to re-enter and the same to have againe and repossesse as in his or their former estate and every such of the said A. B. C. D. as shall make default of payment of the yearely rent aforesaid in manner and forme aforesaid utterly to expell a move and put out any thing in these present Indentures to the contrary therof contained in any wise notwithstanding Tithes To the Parson belongeth of common right the tenths of all manner of yearely encrease which we call Dismes or Tithes and therefore by a Lease of Rectoria the Lessee shall have the Dismes and Offerings of the same Church for they are incident unto it 15 H. 7. 8 Fitz. Na. Br. 175. And if a Parson demise his Gleeb to any man hee shall pay tithe because they are of common right Heire This word Heires in the plurall number is worthy observation for if a man give Lands to one and to his heire in the singular number he hath but an estate for life for his heir cannot take a Fee-simple by discent because he is but one and therefore in that case his heire shall take nothing and observeable is this conjunctive Et. for if a man give lands to one to have to him or his heires he hath but an estate for life for the incertainty ses suis If a man give Lands to two to have and to hold to them heredibus omitting suis they have but an estate for life for the incertainty But it is said if land be given to a man heredibus omitting suis a Fee-simple passeth But follow Littleton Cokes Litt. fo 8. b. Such unity which is within the Branch of the said Act ought to have four qualities Tythes What vnity is sufficient within the Statute of 31 H. 8. to discharge the Land of Tythe first the unity ought to Iusta and rightfull and not by wrong secondly it ought to be equall that is in Fee one with the other for if the Abbots Priors c. have holden by Lease time out of memory that is no unity within the statute thirdly it ought to be perpetuall time out of memory c. and fourthly it ought to be free from payment of any tithes for if their Farmours at will for yeares c. have paid tithes unto them the unity perpetuall shall not serve Coke 11. pars fol. 9. Pruddy and Nappars Case An Abbot is Parson imparsonee and hath Lands within the same Pasonage and all commeth to the King by suppression and the King grants the personage to one and the land to another this was argued upon demurrer in the Kings Bench and the opinion of the Justices there was that Tithes should not be paid more now then the Abbey paid before the suppression The King shall not pay Tithes for Lands which are in his hands although the Leviticall Law saith that every one shall pay Tithes ut dicitur No Tithes shall be paid for Sea-coles which a man findes and diggeth in his Land for it is not yearely profit ut accidit in W. C. and Master Leech Fitz. Na. Br. 53. and Register 54. Note that by the Statute of 27. Eliz. cap. 1. it is ordayned vacua Henry the second granted unto the Abbot of York the tenth of all his Venison in York shire by his Charter By this it appeareth that for Wild Beasts there was no Tythe due for then might not the King have granted another mans Tythe c. Itner Pickering fo 170. b. The Prior of Lancaster did claime the Tythe of Venison and the Tythe of pawnage viz. decimam bestiam in carne corio per manus ministrorum de sorresta and the tenth penny of the pawnage when the pawnage of the Forrest was collected and he made his by vertue of a grant made by the Lord of the Forrest unto one of his Predecessors and his claime was allowed of for good Itin. Lanc. anno 10. Ed. 3. fo 64. b. c. No prohibition lieth where a Parson demandeth Tithes of Horne-beam Sallows Hasells Maples and such like although they be of the Age of 40. yeares for they will not serve to build otherwise it is of Oakes Ashes Elmes and such like and also of their bowes which are above the age of twenty yeares Coment Plowden fo 470. It was never seen that any Tythes should be paid of great trees because they are parcell of the inheritance and this is proved by the Statute of 45. E 3. Cap. 3. in that such case a prohibition lieth If Timber Trees have
been usually lopt Tythes shall not be paid for them for as the Law priviledgeth the body of the Tree being parcell of the inheritance so doth it priviledge the Branches also so if a man cut his timber trees Tythes shall not be paid for the boughs or sprouts which are going out of the roots or stowles in respect that the root is parcell of the inheritance so if a timber tree become arda sicca non portans folia nec fructus in aestate nec existens macorin and the owner cut him no Tythes shall be paid therof in respect of the inheritance which was once in him so for the barke of Oakes being timber no tythes shall be paid but for Acornes tythe shall be paid because that groweth yearely Inheritance doth passe without livery and seisin by a grant If I grant all my Trees within the Mannor of G. to one and his heires the Grantee shall have inheritance in them without any Livery and Seisin Coke Barringtons case S. pars fo 137. And so if I grant to you my Trees in my Wood you may come with Waines or Carts over my Land to carry them Coke 11. pars fo 53. Vsery Clayton requested Reynolds to lend him 30. l. and upon communication between them Reynolds lent Claton 30. pound the sixth day of December 34 Eliz. unto the second of June next following to pay unto him for the principall and Lone thereof 33 l. upon the said second of June if the sonne of Reynolds were then alive and if he died before the day that then he should pay unto him twenty seven pounds which was 3 l. under the principals this is by the resolution of the whole Court was usery within the letter of the Statute Coke 5. pars fo 70. It was agreed between T. W. and A. G that A. Boortons case Coke 5. pars fo 69. should lend to T. W. 100 l. and that the said T. W. should grant to the said A. and his heires a rent which was in esse of 20 l. upon a condition that the said A. should lend to the said T. W. 100 l. as aforesaid And that the said T. should grant to the said A. and his heires the rent of 20 l. upon this condition that if the said T. should pay to the said A. 100 l s. the 17. of July 1580. which was a full yeare before the contract made that then the rent should cease and hereupon the money was received and the rent granted accordingly This was not within the statute of usury because nothing was to be paid by T. W. the Grantor within a yeare and a quarter after the Grant made for within the 17. day of Iuly 1579. and Christmas 1580. at which time a distres was taken for the rent no rent was limitted to be paid and if the Grantor had paid the 100 l. the 17. of July 1580. the rent had ceased without paying any thing for the same 100 l. So the whole Court adjudged that it was a plaine bargaine and conditionall purchase of such a rent and no usery But it was resolved by the Court that if it had been agreed between the Grantor and the Grantee that notwithstanding such power of redemption that the 100 pounds should not have been paid at the day and that the clause of redemption was inserted to make an evasion out of the Statute then it had been an usurious bargaine and contract within the Statute Coke 3. pars fo 69. Where a man for 100 l. selleth his land upon condition that if the Vendor or his heire repay the sum citra festum Pasch or such like then next comming that then he may re-enter that is not usury for he may repay it the morrow after or at any time before Pascâ—… And therefore he hath not any gaine certaine to receive any profit of the land And likewise where any Defeasance or Statute is made for the repayment citra tale festum But it is otherwise if the condition be that if the said Vendor repay such a day such a yeare or two yeares after this is usury for he is sure to have the Land and the rents land or profits that yeare or these two yeares And so when a Defeasance or Statute is made for the repayment at such a feast which is a yeare or two years after B. Usury 1. If a man morgage his Land upon Defeasance of repayment to re-enter by which Indenture the Vendee leaseth the same land to the Vendor for yeares rendant rent there if there bee a condition in the Lease that if the Vendor repay the same before such a day that then the lease shall be void that is not usury But otherwise it is if he be to pay it such a day certaine or such a yeare or more after B. usury 2. 32 H. 8. Inheritances lineall and collaterall Lands purchased may goe to the heires both of the part of the father and mother of the Purchasor unlesse it be once attached in the heire of the part of the Father for the heir of the part of the Mother shall never have it because they are not of blood to him that was last seised But Lands discended goeth onely to the heire of that part from whence it discends as if from the Father who did purchase it then it may goe to the heirs of the part of the mother of the same father but not to the heirs of the part of the sons mother for though they be of blood to the sonne that was last seised yet they are not of blood to the father which was the first purchasor And if a man Purchase Lands in Fee-simple and die without issue he which is next Cousin collaterall of the whole bloud how far soever he be from him in degree may inherit and have the Land as heire to him These words do intend that where a man doth purchase lands and dieth without issue and having neither brother nor sister then his next Cosin collaterall shall inherit So as there is implied a division of Heires viz lineall who shall ever first inherit and collaterall who are to inherit in default of lineal for in discent it is a Maxime in Law Quod linea recta semper praefertur transversali Lineall discent is conveyed downward in a right line as from the Grandfather to the Father from the Father to the Son and so downward collaterall discent is derived from the side of the lineall as Granfathers Brother Fathers Brother c. Vpon this word Next I put this case One hath issue two Sons A. and B. and dieth B. hath two Sons C. and D. and dieth C. the eldest Son hath issue and dieth A. purchaseth lands in Fee-simple and dieth without issue D. is his next Cosin and yet shall not inherit but the issue of C. for he that is inheritable is accounted in Law next of blood And therefore here is understood a division of next viz. next jure representationis and
next jure propinquitatis that is by right of representation and by right of propinquity And Littleton meaneth of the right of representation for legally in course of discent he is next of blood inheritable And the issue of C. doth represent the person of C. and if C. had lived he had been legally next of blood And whensoever the Father if he had lived should have inherited his lineall heire by right of representation shall inherit before any other though a Mother be jure propinquitatiâ—… neerer of blood But if there be Father and Son and the Father hath a brother that is Uncle to the Son and the Son purchase lands in fee and die without issue living the Father the Uncle shall have the lands as heire to the Son and not the Father yet the Father is neerer of blood because it is a Maxime in Law that inheritance may lineally descend but not ascend yet if the Son in this case die without issue and the Uncle enter into the land as heire to the Son and after the Uncle dieth without issue living the Father the Father shall have the land as heire to the Uncle and not as heire to his Son for that he cometh to the land by collaterall discent and not by lineall ascent and his Uncle enter into the land for if the Uncle in this case doth not enter into the land then cannot the Father inherit the land for there is another Maxime in Law herein implied That a man that claimeth as heir in Fee-simple to any man by discent must make himself heire to him that was last seised of the actual Freehold and inheritance And if the Uncle in this case doth not enter then had he but a Freehold in Law and no actuall Freehold but the last that was seised of the actuall Freehold was the Son to whom the Father cannot make himself heire And therefore Littleton saith And his Uncle enter into the land as he ought by the Law to make the Father to inherit as heire to the Uncle Note that true it is that the Uncle in this case is heire but not absolutely heire for if after the discent to him the Father hath issue a Son or a Daughter that issue shall enter upon the Uncle And so it is if a man hath issue a Son and a Daughter the Son purchaseth land in fee and dieth without issue the Daughter shall inherit the land but if the Father hath afterward issue a Son this Son shall enter into the land as heire to his brother and if he hath issue a Daughter and no Son she shall be Co-partner with her Sister As he ought by the Law These words as a Key do open the secrets of the Law for hereupon it is concluded that where the Uncle cannot get an actuall possession by entry or otherwise there the Father in this case cannot inherit And therefore if an Advowson be granted to the Son and his Heires and the Son die and this discend to the Uncle and he die before he doth or can present to the Church the Father shall not inherit because he should make himself heire to the Son which he cannot do And so of a rent and the like But if the Uncle had presented to the Church or had Seisin of the rent there the Father should have inherited For Littleton putteth his case of an entry into land But for an example if the Son make a Lease for life and die without issue and the Reversion discend to the Uncle and he die the Reversion shall not discend to the Father because in that case he must make himself heire to the Son If the Father make a Lease for years and the Lessee entreth and the Father dieth the eldest Son dieth before entry or receipt of the rent the younger Son of the half blood shall not inherit but the Sister because the possession of the Lessee for years is the possession of the eldest Son so as he is actually seised of the Frank-tenement and the Inheritance and consequently the Sister of the whole blood is to be heire And so if lands be holden by Knights service and the eldest Son is within age and the Guardian entreth into the lands An so likewise if Guardian in Socage enters But in the case aforesaid if the Father make a lease for life or a gift in tail and dieth and the eldest Son dieth in the life of Tenant for life c. the younger brother of the half blood shall inherit because the Tenant for life or Tenant in tail is seised of the Freehold and the eldest Son had nothing but a Reversion expectant upon the Freehold and therefore the youngest Son shall inherit the land as Heire to his Father who was last seised of the actuall Freehold And albeit a rent had been reserved on the estate for life and the eldest Son had received the rent and died yet it is holden by that the younger brother shall inherit because the seisin of the rent is no actuall seisin of the Freehold of the land but Liber Ass part 2. seemeth to the contrary Ideo quaere He that claimeth Lands Tenements Maxime upon collaterall discent or Hereditaments as collaterall heire to any one must claim from such an one that had an actuall possessession and died actually seised of the Frank-tenement and the inheritance in Fee-simple of those lands which he so claimeth by discent and not from such a one who had but a possession in Law or a reversion in Fees expectant on a Frank-tenement discendible unto him But to the lineall heire it sufficeth that the Ancestor should have been heire if he had lived But if such a collaterall heire claime from a collaterall Ancestor that had a possession in Law by his own purchase or reversion in Fee-simple expectant on a Frank-tenement by his own purchase it is sufficient Actuall possession Note that an actuall possession must be gained either by a mans own act or by the actuall possession of another but if neither by his own act nor by the possession of another he doth gain no more then discendeth unto him then the brother of the half blood shall inherit Possessio quid And this word Possessio is no other but pedis positio and extendeth onely to things whereof a man by his entry or other act may gain an actuall possession for when the eldest Son hath not an actuall possession or if it be such inheritance whereof any possession may not be gained per pedis positionem or by any other act then the inheritance by the Law shall discend to the brother of the half blood As for example The King by his Letters Patents createth a Baron and giveth the Dignity to him and his Heires and he hath issue a Son and a Daughter by one venter and a Son by another venture and dieth the eldest Son dieth without issue To whom shall the dignity discend To the younger Son for it may not be said that the
it shall begin on the day in which it is delivered for the words of the indenture are not of any effect till the delivery and thereby from the making or from henceforth take their effect But if it be a die confectionis or a die datus or a datu then it shall begin the next day after the delivery If the habendum bee for the terme of twenty one yeares without mentioning when it shall begin it shall begin from the delivery for there the words take effect as is aforesaid If an Indenture of Lease beare Date which is void or impossible as the 30. day of February or the 40. of March if in this case the terme be limited to begin from the date it shall begin from the delivery as if there had been no date at all And so it is if a man by his indenture of lease either recite a Lease which is not or is void or recite a Lease amisse in point materiall which is in esse to have from the ending of the former Lease this Lease shall begin in course of time from the delivery therof Coke 5. pars fo 1 12. Eliz. Dier fo 286. 14. El. Dier 307. 5. Eliz. Dier fo 218. Re-enter and take the profits untill c. If a man make a lease for yeares reserving a rent with condition that if the rent bee behind that the Lessor shall re-enter and take the profits untill therof he be satisfied there the profits thereof shall be accounted as parcell of the satisfaction and during the time that he so taketh the profits he shall not have an action of debt for the rent for the satisfaction whereof he taketh the profits but if the condition be that he shall take the profits untill the Feoffor be satisfied or paid off the rent without saying thereof or to the like effect there the profits shall not be accounted in part of the satisfaction but to hasten the Lessee to pay it New Littleton fo 203. 30 E. 3. 7. 27 H. 8. 4. 43 E. 3. 21. Livery Seisin Tantamount Of free hold and inheritances some be corporeall as Houses Lands c. these are to pass by Livery and Seisin by Deed or without Deed some bee incorporeall as Advowsons Rents Commons Estovers c. these cannot passe without Deed but yet without any Livery And the Law hath provided the Deed instead of a Livery and so it is if a man make a Lease and by Deed grant the reversion in Fee here the Free-hold with the Attornment of the Lessee by the Deed doth pass which is in lieu of the Livery To say that money is fallen Actions on the case that he hath gone about to get poison to kill the child that such a woman goeth with that a man did lie in wait to rob one or procured another or agreed with another to murder him or sought his life for his land to call a Marchant bankerupt but not to call a Gent. c. bankerupt is not actionable to call an Attorney Ambidexter or or to say that he dealeth corruptly But words of choller and heate as to call one cousiner crafty-knave common Extortioner Drunker Witch Rogue Pillory-Knave Villain unlesse he say Villaine to such a man or regardant to such a Mannor are not actionable But if the speaker be able to justifie the words for then it is not falsely As to call a man perjured by reason of a perjury comitted in the Star-chamber Murtherer Thiefe or such like upon a conviction too but to call one Theife or Murtherer upon an inditement or common fame is actionable If one having another mans goods convert them to his owne use if a Smith cloy my horse these are actionable but not if he take him to cure without warranting of him and doing all he can yet the Horse impaire If being committed to the Goale the Jaylor of malice put upon me two many Irons or otherwise use mee so hardly that I become lame thereby this is actionable Sir Hen. Finch fo 186. A grant by an Infant under the age of twenty one yeares A grant one out of his right mind whom wee call non sanae memoriae or non compos mentis or one compelled to doe an act either by duress of imprisonment or feare of some bodily hurt threatned to himselfe but not to his Father mother Brother c as losse of life and member or though it be but of imprisonment for imprisonment is a corporeall paine and one may be imprisoned that he die of it otherwise of menace to breake or burne downe ones house for that is but the losse of ones goods is avoidable and may be avoided at any time by entry action c. if they deliver it with their hand as in a grant of a rent advowson c or a Feoffment by letters of Attorney it is meerely void and nothing at all passeth So if a grant made by one which hath no understanding as if he be borne Dumbe Deafe and blind but one Dumb may make a good grant or borne dumb and deafe for diverse may have understanding by their sight only though dumb and deafe If an infant bargaine for his necessary meat drink and apparell c. it shall bind him Other Grants of his where himselfe hath likewise benefit we call it quid pro quo are onely voydable and not void as if he let lands for yeares reserving a rent Sir H. Finch fo 102. Pretended right None shall buy sell or get or take promise or grant to have any pretended rights or titles to lands c. except the seller or these by whom he claimeth were in possession or took the profits by the space of a yeare next before upon paine that the sellor c. shall forfeit the value of the land and likewise the buyer knowing the same provided he that is in lawfull possession by taking the yearly profits may buy c. anothers pretended right 32 H. 8. ca. 9. Tole in market The seller shall not pay Toll but the buyer neither shall a man pay Toll for the things he bringeth to the Faire but for the things he selleth but by the custome he may for every thing brought to the faire and for his standing also Finch fo 166. If the Parson of a Church purchase a Mannor within his Parrish now by this purchase and unity of possession the Mannor which was titheable before is now made non decimabilis because hee cannot pay tithes to himselfe but if the Parson make a Lease of his Parsonage and Rectory to a stranger now the Parson himselfe shal pay Tythes of his Mannor to the Lessee of the Rectory and if the parson make a Feoffment of the Mannor the Feoffee shall pay Tythes to the Feoffor Parson because that Tythes may not be extinct by any unity of possession as rent-charge may which is issuing out of Lands but tythes are due by the Law of God ex debito by the manurance and
with the tenants of this mannor in any part or parts thereof and with what Chattle and where and bywhat right custome or duty to your knowledge Enter commoners 10. Item VVhether may the Lords and Tenants of this Mannor enter-common in the VVasts Downes Heathes Moores or commons of any other Mannors or Lordship And if they may then with what kinde of Cattle and what be the names of the Mannors and commons and who is now seised thereof to your knowledge Exchange of Land 11. Item what exchanges have been made of any land within this Mannor by whom when and where were the same exchanges made and what lands and for what terme Lands forfeited or escheated 12. Item whether have any parts or members of this Mannor been forfeited or escheated or ought have been unto the Lord of this Mannor and not yet seised to his use by reason of any death Bastardy granting of Leases without license aliening of copy-hold land by feoffment Wast Demise or otherwise what and were be the same lands and who do occupy the same and how and in what manner were the same so forfeited or escheated 13. Item what Herriots reliefs or other duties Herriots reliefs c. are or ought to be due unto the Lord of the Mannors upon the decease of any tenant of what estate soever or upon any alienation or surrender and whether such as doe hold under divers rents ought to pay diverse Herriots And if they doe of what kind or kinds be the said Herriots or ought the same to be to your knowledge 14. Item what quit rents workes Quit-rents work customes c. customes or other duties are or have been of old time of right paid out of this manner and to what person or persons and upon what cause 15. Item you shall enquire if any evidences Court-Roles or writings belonging to this Mannor Writings or Court-Rolles concealed are with-holden or kept back from the Lord of this Mannor and by whom The interpretation explanation and meaning of divers words used in ancient Charters c. Fleta Sock A Power to seek after Thieves and to do justice upon them after such inquisition Also a Liberty to have Suitors to their Courts that have the same Also it is taken for a company of Tenants which live within such a Liberty and they are by the same exempted from the common services of the Prince and Country whereunto other Subjects are ordinarily bound Sochemans Are men to whom some special Liberties are given Ham Socha Is the dwelling of a Farmer Dr. Cowel Ham is a Town and from thence comes Hamlet Sack Signifieth Causa and from thence cometh this saying For whose sake scilicet For whose cause Skene de verb. signif Lam. f. 132. Sack Is called Placitum emenda de transgressione hominum in curia nostra It is the Amerciament paid by him which denieth the thing proved against him to be true or affirmeth the contrary to the truth Fleta Sack Significat acquietantiam de Secta ad Comitatum hundredum l. 1. c 47. Cassaneus in consuetudine Thol or Toll Tolvetum alias Theo onium hath two significations viz. 1. A Liberty to buy or sell within a certain precinct which importeth to a Fair or Market 2. And in the second it is a Liberty to take Toll as to be free from the payment thereof He that is infeoffed with Toll is Custome-free and payeth no custome Skene when it is written Hoc est quod vos homines vestri de toto homagio vestro fint quieti de omnibus mercanciis de tolveto de omnibus rebus emptis venditis Privy contracts were held unlawfull and therefore the Lord of the Fair or Market in testimony of the contract received toll Is a power to have slaves which are called Nativi Bondi Villani Teame alias Theme And all Baronies infeoffed with Theam hath the same power for unto them their Bond-men their Children Goods and Chattels properly belong It is a Royalty granted onely by the King himself A compound of three Saxon words Infangthef the Preposition In fang to take thef a Felon Infangthef est Justicia cognoscentis latroniâ— de homine suo si captus fuerit super terram suam Illi vero qui non habent has consuetudines coram Justicia regia rectum faciant in Hundredis Wapentagiis vel Shiris An out-taken-thief Vtfangthef Bracton l. 2. c. 24. diciturlatro extraneus veniens aliunde de terra aliena qui captus fuerit in terra ipsius qui tales habet libertates Significat acquietanciam misericordiae intrationis in domum alienam vi injuste Handsok Fleta l. 1. c 47. Grith a word of the old Angles signifying Peace Brich quasi Breach Grith brich Rastal expositione verborum Those amerciaments due for Bloudshed Blout in Saxon est Sanguis Wite est Culpa Blodwite D. Cowel A liberty to take amerciaments pro melletis Flitwite Bona utlegatorum Fredwite Significat quietanciam misericordiae de latrone suspenso absque consideratione Hengwite Fleta l. 1. c. 27. Cowel Cowel est muleta pro homine injuste suspenso Liâ—…wite Is a liberty to take amends of him that defiles your Bond-woman Flemene frith A liberty to challenge the Cattel or amerciaments of your man a Fugitive Forstall To be quit of amerciaments and cattle arrested within your lands and the amerciaments thereof coming Gidel Grest A kinde of purgation in old time whereof there was two sorts viz. per ignem aquam Henfare An amerciament for flight for murder Vetito namio is power to have Pleas of Withernam that is if any of his men or Tenants to whom such power is given be arrested in another Liberty the next man of that liberty that comes into his Fee shall be taken and deteined untill the other be freed In a Charter of King Edward the Third dated at Walton 25. Junii Anno Regni sui 12. reciting divers former Charters doth declare and grant That by the obscure and dubious and general words in the former Charters the Grantees should have all amerciaments as well of Free-men as of Villains and that they should receive all that the King ought to have for any fault or transgression to be amerced in the Court of the King before the Barons of the Exchequer before the Justices of the Bench or before his Justices Itinerant at Common Pleas or before his Justices assigned to take Assizes or to deliver Goals or to whatsoever Inquisitions to be made or amerced before any other Justices Sheriffs Inquisitors Reeves Bayliffs or other ministers as well of the Forrests as others to whatsoever Office they were deputed by the King And that they have the Goods and Chattels of Utlaws Condemned persons and Fugitives and of Felons as wâ—ll of themselves as of all other Felons
2. What is the present worth of an annuity or rent of 50. pound per annum payable yearely for 21. yeares accounting compound interest after the rate of 6. per cent per annum In the second columne of the 6. Table right against 21. yeares is 11.75407 which being multiplyed by 50. the product is 588.20350 from which cutting off 5. figures for the decimall parts of the number found in the table the answer is 588 l. and reducing the parts 4. shillings 3. farthings Question 3. What annity to begin presently and to continue 21 yeares payable at yearely payments will 588. pound 4. shillings 3. farthings purchase compound interest being reckoned at 6. per cent per annum In the second column of the 7. Table right against 21. yeares is 085. which being multiplied by 588. 203125. the Decimall of 588 l. 4. shillings 3. farthings the product is 49 998065325. from which if you cut 9. figures for the number of parts in both the termes given the yearly annuity is 49. pounds and the Decimall 99806 c. gives 19 s. 11. pence 2. farthings Question 4. What is an annuity of 25. pounds per An. for seven years payable yearly and to begin 3. years hence compound interest after the rate at 6. per cent worth iâ—… present First find by the second question of this Chapter what an anuity of 25. pounds per annum for 3. yeares at the rate propounded is worth in ready money and then what an annuity of 25. pounds per annum for 3. and 7. yeares that is for 10. yeares at the same rate is worth in ready money the difference of these two is the answer to the question propounded In the second columne of the 6. table right against 3. yeares is 2.67301 which being multiplyed by 25. the product is 66.82525 and the number answering to 10. years is 7.36008 which being also multiplyed by 25. the product is 184.002005 from which deduct 66.82520 there rests 117.17675 that is according to the former directions 117. pounds 3. shillings 6. pence farthing the present worth of the 7 yeares in reversion Question 5. If the Lease of a house or lands be worth 127 l. fine and 9 l. rent per annum payable yearly for 20. years and the Lessee be desirous to bring downe the fine to 40 l. and so to pay the more rent the question is what rent the tenant shall pay accounting compound interest at the rate of 6. per centum per annum Find the difference between the fines which is 87 l. then by the seventh table find what annuity or rent to continue 20. yeares is equivalent unto 87 pound ready so will you find 758466. that is being reduced 7 l. 11 s. 8. pence 1. farthing which being added to the old rent 9 l. gives 16 l. 11 s. 8. pence 1. farthing which the tenant must pay to the end that the fine may be diminished unto 40. pound Question 6. There is a lease af certaine Lands to be let for 20. yeares for 40. l. fine and 16. shillings 8. pence 1. farthing rent per annum payable yearly but the tenant is desirous to pay lesse rent viz. 9 l. per annum and to give a greater fine the question is what fine ought to be paid to bring down the rent to 9 l. per annum accounting compound interest at the rate of 6. per centum per an Find the difference between the rents which is 7 l. 11. shillings 8. pence 1. farthing then by the 6. Table see what an annuity or rent of 7 l. 11. shilling 8. pence 1. farthing per annum to continue twenty yearers is worth in ready money so shall you finde eighty six pound nineteen shillings ten pence proxime which being added to the first fine forty pound gives 126. pound 19. shillings 4. pence which the tenant must pay to the end that the rent may be brought downe to nine pound per annum Question 7. There is a lease of certaine lands worth 32 l per annum more then the rent paid to the Lord for it of which Land there is a Lease yet in being for 7. years and the lessee is desirous to take a Lease in reversion for 21 years to begin when his old Lease is expired the question is what sum of money is to be paid for this lease in reversion accounting compound interest at the rate of 6. per cent per an Find by the 6. Table what 32. pound rent is worth in ready money for 21. yeares as if it were to begin presently which will be found 376. 4.5024 l. then by the 5. table find what 376.45024 l. due at the end of 7. yeares to come is worth in ready money so will it be 250 l. 7. s. 2. d. proxime which is the answer to the question The first Table A Table turning Shillings Pence or Farthings into Decimall parts S. d. Decimals 1. 1 010417  020833  031250 0. 1 041667  052083  062500  072917 0. 2 083333  093750  104167  114583 0. 3 125000  135417  145833  156250 0. 4 166667  177083  187500  197917 0. 5 208333  218750  221967  239583 0. 6 250000  260417  270833  281250 0. 7 291667  302083  312500  322917 0. 8 333333  343750  354167  364583 0 9 375000  385417  395833  406250 0.10 416667  427083  437500  447917 0.11 458333  468750  479167  489583 1. 0 500000  510417  520833  531250 1. 1 541667  552083  562500  572917 1. 2 583333  593750  604167  614583 1. 3 625000  635417  645833  656250 1. 4 666667  677083  687500  697917 1. 5 708333  718750  729167  739583 1. 6 750000  760417  770833  781250 1. 7 791667  802083  812500  822917 1. 8 833333  843750  854167  864583 1. 9 875000  885417  895833  906250 1.10 916667  927083  937500  947917 1.11 958333  968750  979167  999583 2. 0 1.000000 The second Table A Table shewing the Simple Interest of one pound for the first 4. Months of the yeare at 6. per Cent. Daies  January  Febru  March  April day Parts day Parts day Parts day Parts 1 1 000164 32 005261 60 009863 91 014959 2 2 000329 33 005425 61 010027 92 015123 3 3 000493 34 005589 62 010192 93 015288 4 4 000657 35 005753 63 010356 94 015452 5 5 000822 36 005918 64 010520 95 015616 6 6 000986 37 006082 65 010685 96 015781 7 7 001151 38 006246 66 010849 97 015945 8 8 001315 39 006411 67 011014 98 016109 9 9 001479 40 006575 68 011178 99 016274 10 10 001645 41 006739 69 011342 100 016438 11 11 001802 42 006904 70 011507 101 016603 12 12 001973 43 007068 71 011671 102 016767
said to be a rent may in any wise be reserved to a stranger which is not privie to the Lease or Deed. Also nothing which goeth in privity as conditions entries or re-entries for conditions or such like which are given by the law to privies onely may not be limited or granted to others which are strangers by the common Law and therefore if a Lease bee made for yeares rendant rent and upon condition of non payment that it shall remaine to a stranger and livery and seisin is made accordingly that is a void a remainder which commenceth upon a repugnancy precedent and which dependeth upon a condition which goeth in destruction of the perticular estate and especially where such a remainder is created by lease or grant Vpon and by the limitation of a devise or limitation of an use a remainder may commence upon a condition that goeth to the destruction of the perticular estate But by limitation of a devise or limitation of use such a remainder is good as a Feoffement made to the use of I. S. for yeares and upon non payment by him of such a summe that it shall remaine to I. D. for life c. this is a good remainder so it is where the remainder is created by the limitation of a last Will. As if a man devise his land to his wife for her life upon condition that if she marry that the Land shall remaine to F. M. in taile that is a good remainder for the construction of this devise is to make the same condition to be a limitation and not any condition And upon a limitation or determination of a perticular estate which is certaine or not uncertaine a remainder clearely may well depend As if a Lease be made for life upon condition that if the Lessee die it shall remaine to a stranger that is a good remainder A remainâ— by a limitation of an use may commence or depend upon any condition and one feesimple may depend upon another by way of use Where one hath an Office of charge as to be Steward Officers Stewards Bayliffs c. Bayliffe Parker c. the grantor may out them and pay their Fee if the Fee bee only certaine but not where they have profits of Court 34 H. 8. titulo 243 Kitchin fo 143 a. Stewardship Parker It was agreed that the Owner of Parke may dispark the Park notwithstanding a grant of the said Office the Office of Steward was granted to one for life with a Fee of forty shillings for the execution thereof if the Lord discharge him yet hee shall have the Fee But if the grant be to him to be taken out of the issues and profits of the Court the Lord may not discharge him 1 S. E. 4. 8. And if a Parker for life which hath a Fee for the exercising of the Office is discharged of his Office yet he shall have the Fee for it is but an Office of charge but if the Parker hath the Office for life and hath Windfalls Deer-skins and such like he may not be expulsed from his Office and of such Office hee may have an Affize Brook 134. 38 H. 8. whereby I conceive that where the Steward hath a cetaine Fee for execution of his Office yet if he hath other profit incident to his Office as Fees for entries of Plaints making of grants by Copie taking of surrenders and admittances of Copy tenants and such like the Lord cannot remove the Steward Officers that have no other profits but a Collaterall certaine fee there the grantor may discharge him As to be a Bayliffe Receivor Surveior Auditor or the like the exercise whereof is but labour and charge to him but hee must have his Fee for the maine rule of the Law is that no man can frustrate or derogate from his owne grant to the prejuice of the Grantee And where albeit the Grantee hath no other profit but his Fee yet that fee is to be taken out of the profits appertaining to the Lord within his Office for there the grantor cannot discharge him of his service or attendance for that may turne to the prejudice of the grantee if the Grantor will not grant the Office at all but in all cases where the Officer relinquisheth his Office and refuseth to attend he loseth his Office Fee profits and all There are three causes of the forfeiture of an Office as the Office of a Steward Parker Wood-ward and such like viz. Abuser non-user and refuser vide Coke 8 pars the County of Rutlands Case fo 55. 9 pars County of Salops Case fo 49. for in all cases when an Officer upon request doth refuse to execute his Office that is a forfeiture as if the Steward of a Mannor upon the Lords request to hold a Court refuse to do it this is a forfeiture There is another diversity where the Grantee besides his certaine Fee hath profits and availes besides his Office there the Grantor cannot discharge him of his service or attendance as if a man doth grant to another the Office of the steward-ship of his Court or of his Mannors with a certaine fee the Grantor cannot discharge him of his Office service or attendance because he hath other profits and fees belonging to his Office Parker If a Parker kill any deere without warrant or cut any Trees Woods or Vnder-woods and convert them to his owne use it is a forfeitute of his Office Parker for life may not assigne his Office to another because it is an Office of trust but otherwise it is if hee bee Parker in Fee Plow fo 379. and so for a Steward as I conceive without words in the Patent to make a deputy There is a condition in Law annexed to every Office of trust as to the Office of Steward or Parker and such like viz. that the Parker shall keep well the game and shall do all things pertaining to the Office of Parker and so for steward c. A parker kept not his Parke such a day by reason whereof the Deere were killed by unknowne persons this is a forfeiture of his Office A Parker is not holden to keep his Parke in Festivall dayes for he ought to be at divine service nor in the night nor to keep the Parke with 6 or 8. men vide 2 H. 7. 8. that in Assize of Office it was said by the reporter and not denied that if the Office of Parker be granted if he doth not keep the Parke or if he destroy the Deer that is a forfeiture of his Office if a Forrester or Parker cut or fall Woods unlesse it be for necessary bruse for the Deere this is a forfeiture of their Offices for the destruction of vert is the destruction of venison If a man hath a lease for yeares Grants in toto and grants to another all his tearme that shall bee to come at the time of his death that grant is void because he would retaine the terme