privie in right and represent the person of the dead All Grantees of Reversions may enter upon Farmers for 32 H. 8. c. 34. Finch l. 2. c. 1. pa. 107. Herne's Law of Convey p. 31. any Forfeiture or Condition and have like advantages against them by Action onely for any other Covenants Conditions or Agreements contained in the Indentures of their Lease as the Lessors their Heirs or Assigns might and the like for the Lessees against the Grantees of the Reversions Recovery in value onely excepted If a man make a Lease for Lit. l. 3. c. 8. Co. 1 par Inst f. 292 b. 45 E. 3.8 17 H. 6.26 Cowel's Instit p. 193. Noye's Maximes p. 77. Years upon Condition that the Rent shall be paid at Michaelmas and in the mean time give a general Release to the Lessee of all Actions and Demands yet this doth not remit the Rent but the Lessor may sue for it and the Reason of this is because it was neither Debitum nor Solvendum at the time of the Release made and it is a thing not merely in Action because it may be granted over If two take a Lease joyntly for Years with Condition that Vid. 3 F. 6. Dyer 67. Farrington's Case Cowel's â—nstit 199. if the Lessees die before the term ended the Lease shall be void now the Lessees make division and one of them alienateth his part and dies in this case the Lessor cannot reassume the part of him that died but the Alienee shall have it during the life of him that surviveth If a Lease be made for Years Hil. 36 Eliz. Rot. 376. Cole and Taunton's Case Goldsb p. 184. pl. 122. Vid. the Case 31 H. 8.45 upon Condition that if the Lessee demise the premisses or any part thereof other then for a year to any person or persons then the Lessor and his Heirs may re-enter the Lessee after devises it to his Son by his Will this is a breach of the Condition If a man of his mere motion Dr. Stud. lib. 2. cap. 20. fo 93. a. enfeoffe H. by Indenture upon Condition that he shall yearly pay to I. S. out of the Lands a certain Rent and if he fail in payment that it shall then be lawful to the said I. S. to enter c. the Rent is behinde and unpaid in this case I. S. may not enter by Law for there is an ancient Maxime That no man shall take advantage of a Condition unless he be party or privy to it If the Grantee of a Rent-charge release parcel of the Dr Stud. lib. 2. c 16. 21 H. 7. 2. Co. 1 par Inst fo 147. b. 148. a. H. 14 Eliz. in C. B. Godbolt 139. Harding's Case M. 30 Eliz. in B. R. Rent to the Grantour or his Heirs the Remainder may be apportioned and the Land shall remain chargeable still for the residue but if he release in one Acre parcel of the Land charged then all the Rent is extinct and gone If the Lessor grant a Rent to a Stranger the Tenant cannot 49 E. 3.15 Finch lib. 1. c. 3. p. 36. Attorn nor put him in possession by the delivery of an Ox or such like thing because it is another thing but upon a Recovery of a Rent the Sheriff may deliver possession by such a thing If one that hath a Lease for Years grant his term to a Feme 14 Eliz. Pl. 418. â—inch l. 1. c. 3. p. 42. Covert and to another or if a Feme sole and another be Joint-tenants for years and she take a Husband yet the Estate of the Feme and Jointure doth continue so as the Survivor of the Wife or of the other shall have the whole Estate If a man grant an Estate to a Woman dum sola suit or durante 37 H. 6. 27.26 E. 3.69 14 H 8. 13. Bract. l. 4. f. 207. Fleta l. 3. c. 12. Co. 1 par Inst f. 42. a. Herne's Law of Conv. p. 45. viduitate or quamdiu se bene gesserit or to a man and a woman during the Coverture or as long as the Grantee dwells in such an house or so long as he pays 10 pound c. or until the Grantee be promoted to a Benefice or for any like incertain time in all these cases if it be of Lands or Tenements the Lessee hath in judgment of Law an Estate for Life determinable if Livery and Seisin be made And if it be of Rents Advousons or any other thing that Co. 1 par Inst f. 42. a. lies in Grant he hath a like Estate for Life by the delivery of the Deed. If a Lessee for another man's Life die living the other man Brit. f. 83. Fleta l. 3. c. 12. Brac. l. 4. f. 170. Co. 1 par Inst f. 41. b. he that doth first enter upon the Estate after his death shall be Tenant pur auter vie that is Tenant for the other man's Life and shall be liable to the payment of the Rent reserved and in Law is called an Occupant because his Title is by his first Occupation And so if a Tenant for his Co. ibid. 27 Ass p. 31. Pl. Com. fo 28. b. in Col hirst's Case â—â— Bâ—rr 303. own Life grant over his Estate to another if the Grantee die living Tenant for Life in this case he that first enters shall be an Occupant in like manner it is of an Estate created by Law for if Tenant by the Courtesie or Tenant in Dower grant over his or her Estate and the Grantee dieth during their Lives in this case also there shall be an Occupancy But there can be no Occupant Co. ibid. against the King for nullum tempus occurrit Regi It were good saith my Lord Cook to prevent the incertainty 11 H. 4.42 17 E. 3.48 Dyer 8 El. 253. Co. 1 par Institut f. 41. b. of an Estate of the Occupant by adding these words To have and to hold to him and his Heirs during the life of Cestui que vie and this shall prevent the Occupant And if a man hath an Estate Co. 1 par Inst ibid. already for another's Life without the words before named then it is good for him to assign his Estate to divers and their Heirs during the Life of Cestui que vie If a Lessee for 20 years of Lands and Tenements grant Perkins 693. the same Lands for parcel of the years to a Stranger reserving to himself 20 shill in this case he may distrain for the Rent reserved or have an Action of Debt at his pleasure because by common intendment he is to have the same Land after the years determined because he hath granted but parcel of the years so that the Remainder remains in him But if Cestui que use lease his Land in Use for term of Perkins 692. Years reserving Rent by word of mouth in this case he cannot distrain for the Rent reserved because no Reversion doth remain in him
except an Acre this Acre is no part of the Mannor as to the Lessor but as to him that hath right to demand the Mannor by an eigne Title it remains parcel and therefore he shall make no fore-prise in his Writ A Lease of a Mannor excepting the Services the Exception Finch ibid. p. 53. is void for it is parcel of the thing let If one make a Lease excepting a Close and Wood now 14 H. 8. â— the Law giveth him a way to come to it If the Lessor make a Feoffment Noye's Maximes p. 59. and the Lessee for years giveth leave to the Lessor to make Livery and Seisin of the premisses saving to himself his Lease and he doth so here the Term is not surrendred for the Lessee had an Interest which could not be surrendred without his consent to surrender and here no such intent doth appear wherefore he may enter and have his Term and the Rent is renewed but it is otherwise with a Lessee for Life for there the Rent is extinct If a Lessee for years do take a new Lease for more years this Perkins 117. Vide Watt Maidwell's Case Hil. 3 Car. â—â—â— 1302. B. R. Hutton's Rep. 104. is a Surrender in Law of the old Lease A Lessee for years cannot surrender before his Term begin Perkins 601. Noye's Maximes 74. neither can he surrender part of his Lease but he may grant part of it If two Joynt-tenants in Fee are of one Acre of Land and 5 E. 3.19 sâ—â— Perkins 80. lease the same Acre to a Stranger for Life and the Lessee granteth his Estate to one of the Lessors this is a Surrender for the whole Acre and not for a Moiety Tamen quaere If a Lessee for Life of an Acre of Land lease the same Acre to his Lessor for years the Remainder to a Stranger in Fee this is no Forfeiture though he do make Livery and Seisin to the Lessor If a Lessee for Life or Years Herne's Law of Convey p. 76. Perkins pl. 609. of Land say to his Lessor that he will occupy his Lands no longer which he holdeth of him for Life or Years and so wills him to enter in this case if the Lessor consent it is a good Surrender But if the Lessee for Life or 1 Ass p. 20. Tr. 8 E. 3.46 Perkins 117. Years of a House and Lands remove his goods out of the House and Land by reason of the greatness of the Rent or because he is behinde in his Rent or for any other cause and the Lessor do enter into the House and Lands this is no Surrender of the Tenant If a Lessee for Years assign 37 â—l B. R. Overton and Siddal's Case cited in Co. 3. l. in Walker's Case there over his Term and die his Executors shall not be charged for Rent due after his Death Noye's Maximes p. 72. If the Executors or Administrators Co. ibid. in Walker's Case ut suprá Noye's Maximes p. 72. of a Lessee for Years do assign over their Interest neither doth an Action of Debt lie against them for Rent due after the Assignment If a Lessee assign over his Marrow Turpin's Case P. 41 Eliz. Rot. 2485. Vide March Brace's Case M. 11 Jac. in B. R. Bulst 2 part 151. Hern's Law of Conv. p. 110. Term the Lessor may charge which of them he will but if he once accept of the Rent from the Assignee knowing of the Assignment he cannot then after bring an Action of Debt against the Lessee for Rent due after the Assignment If the Lessor grant away the 36 Eliz. Ungle Glover's Case Reversion after the Assignment Vid. Co. 3 l. in Walker's Case there and see Humble Oliver's Case M. 36. El. in B. R. Popham 55. of the Lessee in this case the Grantee cannot have an Action against the Lessee for the Rent because there is no privity between them If a Tenant for Life enfeoff 19 E. 3. Surr. 8. Co. 1 par Inst f. 42. a. him in Remainder for Life this is a Surrender and no Forfeiture If a Tenant for Life make a Co. ibid. 13 â— â— Dower 95. Lease by Deed or without Deed to him in Remainder or Reversion and after he in Remainder taketh wife and dieth in this case she shall not be endowed for the Tenant for Life shall injoy the Land again for it cannot be a Forfeiture because he in Remainder was a party and Surrender it cannot be for that his whole Estate was not given If a Tenant for Life take an Co. 1 par Inst f. 42. a. 29 Ass p. 64. Husband and by Deed indented they make a Lease to him in the Reversion for the Life of the Husband reserving a Rent this is neither Forfeiture nor absolute Surrender for the reasons in the last Case mentioned But if a Tenant for Life take Husband and they by Deed indented make a Lease to him in Reversion for the Life of the Wife reserving Rent this is a Surrender for their whole Estate is granted and the Reservation is void If a Lessee for 20 years take Co. 1 par inst â— 218. b. Pl. Com. in Fulmerston's Case 107. b. Vid. Poph. Rep f 9. V. Herne's Law of Conv. p. 73 74. Finch l. 1. c 4. p. 62. 1 2 P. M. 107. a Lease for 10 years to begin presently upon Condition if such a thing be not done to be void now the first Lease is surrendred in Law and though the second Lease be void upon the Condition broken yet the Surrender remaineth good If a Lease for years be made to a man without any Consideration Perkins 536. the Lessee shall be seised to his own use If a man make a Lease to another Dr. Stud. l. 1. c. 24. See the Clerk of Assize p. 63. and his Heirs for 20 years intending that his Heirs shall have it yet if the Lessee die notwithstanding the intent the Executors and not the Heir shall have it If a man let a House cum pertinent Pl. Com. f. 85. b. f. 270 273. 31 H. 8. tit Lease 55.23 H. 8. tit Feoffment 53. no Lands pass but if it be cum omnibus terris pertinent here the Lands used with the same do pass Herns L. of Con. p. 104. If a man take a Lease of his Br. Estoppel 221. M. 31 32 El. in C. â— in â—ondon's Case adjudged Co. 1 part Inst f. 47. b. Vide Terms of the Law verb. Estoppel own Land by Deed indented he is then concluded to say that the Lessor had nothing in the Land at the time of the making of the said Lease but after the Lease is out the Estoppel is removed If two Joynt-tenants are of a 24 Car. See Beverley's Case Clayton's Rep. p. 111. pl. 189. see Green's Case An. 1650. Idem p. 146. pl. 265. Lease for Years and one bid the other go out of the House
Office Attendance and such like as well as in paying of Mony If the Heir make a Lease for 7 H. 5.4 Co. on Lâ—â—t f. 42. a. Life reserving a Rent against whom the Mother recovers her Dower and dieth the Lessee shall have the Land again for his Life and the Rent is revived The Acceptance of the Rent 22 H. 8. Br. Acceptance 14. upon a void Lease will not make the Lease good again but Vide Browning's Case Pl. Co. 136. if it be onely voidable it wil. The Acceptance of a Redemise to begin presently is a Suspension Noye's Maximes p. 70. of the Rent before any Entry but otherwise if it be to begin in futuro Acceptance of a Rent which See Co. 3. l. in Pennant's Case there is not in Esse nor due to him that accepts it doth not affirm the Lease as where Lands are given to the Husband and Wife and the Heirs of the body of the Husband and he leases the same and dies and the Issue accepts the Rent of the Lessee in his Mother's life and after she dies now the Issue may avoid the Lease for when he accepted the Rent it was due to his Mother and not to him If the Successor of a Parson â—4 H. 8. Bâ— â—eases 19. â—â— H. 8. Br Dean â—0 Leases 52 See Co. 3. l. fo â—5 66. in Pennant's Case See Revel Haâ—â—'s Case Goldsb Rep. pa. 138. pl. 44. or Vicar accept the Rent of a Lease for Years made by his Predecessor yet it is worth nothing for the Lease is void by Death but it is otherwise of a Lease for Life But if the Successor of a Bishop Co. ibid. 2 F. 6 Br. â—eases 33. 32 H. 8. Dyer 46. Abbot or Prior accept the Rent upon a Lease for Years he shall never avoid it for it was but voidable onely and his acceptance hath now confirmed it If he that hath Rent-Service See Hopkins Moâ—â—on's Case vouched in Pennant's Câ— Co 3. l. Hern's Law of Conv. p. 40. Co. 1 par Inst f. 373. a. 11 H. 4. 55. 10 Eliz. Dyer 271. or Rent-Charge accepts the Rent due at the last day and gives an Acquittance for it all the Arrearages due before are thereby discharged If Tenant in Tail make a Lease for 40 years to commence Pl Co. f. 437. a. Co. 1 par Inst f. 46. b. 10 years after his Death rendring Rent and after he dies and the Issue enters and enfeoffs B the 10 years expires then the Lessee enters if B. accept the Rent the Lease is good If the Husband and Wife let the Land of the Wife for years Tamen quaere P. 5 Mar Dyer 160. and see 4 Maâ— Dyer 141. Gough's Case rendring Rent and after the Husband dies and she before any day of payment takes another who accepts the Rent and dies by this the Lease is affirmed If Tenant for Life lease Lands for years and dies the Lease is void and the Rent reserved upon the Lease is determined and Acceptance by him in Remainder will not make it good for when it is once void by Death no Acceptance after will make it good If the Husband and Wife let the Lands of the Wife for 3 H 6. f. 22 H. 6. f. ibid. 21 H. 6.24 Kitchin p 234. B. Terms of the Law verb. Acceptance years rendring Rent and the Husband dies if the Wife accept the Rent it is a good Lease If Tenant in Dower lease for years and die the Lease is void â—â— H. 8. Br. Tit. Auncest 14. and Acceptance of the Rent by the Heir will not make it good again If a man seised in Fee let for 1 F. 6. Br. 18 and see Finche's Law l. 1. c. 4. p. 68. 10 years and after selleth the Land and taketh back an Estate to him and his Wife and then the Husband and Wife let for 20 years reserving Rent and the Husband dieth the Wife accepts the Rent during the first 10 years in this case the second Lease is not affirmed for 21 Eliz. 563. Philips Prin. of Law p. 164. the Acceptance of the Rent before the Lease beginneth and so before any Rent be due is no Acceptance at all A Lease for Years may be Noye's Maximes p. 78. confirmed for a time or upon Condition or for a piece of the Land but if it be a Franktenement it shall enure to the whole absolutely There is a diversity between See in Pennant's case 38 â—liz Co. 3. l. f. a Lease for Life and for Years In case of a Lease for Life though the Conclusion of the Condition be that it shall be void yet acceptance of the Rent due after the breach doth affirm it and make it good again for the Free-hold being created by Livery cannot be determined before Entry If a Prebend lease for 70 years and Patron Dean and See â—ooâ—d'â— Ca. 37 â—l in C. B. Co. 5. l. f. 81. Chapter confirm the Demise aforesaid in form aforesaid made for 51 years and no farther this is a Confirmation of all the Term but if they had recited the Lease and confirmed the Land for 51 years this had been good But by whatsoever words they confirm a Lease for Life or Gift in Tail for part this shall confirm all because they are intire If the Tenant of the Land and a Stranger join in a Lease for Co. 1 pâ—râ—â—â—st 〈…〉 H. 4. 1. 27 〈◊〉 8.16 Years by Deed indented of the same Land this is the Lease of the Tenant onely and Confirmation of the Stranger and yet the Lease as to the Stranger works by Conclusion If two several Tenants of several Co. ibid. Lands join in a Lease for Years by Deed indented these be several Leases and several Confirmations of each of them and work not by way of Conclusion If B who is Tenant for Life Co. ibâ—â— Vid. Tâ—â—port's case M. â—7 El. in B. R. Co â— l. f. 15. Vide Ellis Chowne's case 44 â—l in C. B. Rot. 1459. of C and he in the Remainder or Reversion in Fee make a Lease by Deed indented in this case this is the Lease of B during the Life of C and the Confirmation of him in Remainder and after the Death of C it is then the Lease of him in Remainder and Confirmation of B and in this case there is no Conclusion If Tenant for Life and he in Remainder in Fee make a Lease Co. 1 par Inst f. 45. a. 2â— H. 8. 〈…〉 See Bredon's case 39 40 â—liz 〈◊〉 1. l. f. 76. 〈◊〉 Dyer 234. by Deed indented and the Lessee be ejected during the Term in the Life of Tenant for Life he must then declare in his Action of a Lease from Tenant for Life and if it be after his Death he then must declare of a Lease from him in Remainder If Cestui que use make a Mich. 35 H. 8. Dyer 58. Lease for 20 Years the first
Cholmley's case Goldsb Rep. p. 186. See Sir Jo. Spencer Sir John Poynes case Tr. 5 Jac. in B. R. Godbok's Rep. 154 Remmington Kingerbies case 18 Car in B. R. in Styles Rep. 4. Sir Rich. Grobham and Thornborough's case Hobart f. 82. to another with Condition that if the Rent be behind for ten daies after any Rent-day that the Lessee the Executors c. shall pay 3s 4d for every day untill the aforesaid Rent so behind shall be satisfied in this case the Rent must be demanded or otherwise the Nomine Poenae shall never be recovered Hobart fo 133. Howel's Case If a Lease be made upon Pennant's case 38 â—l Co. 3. l. 65. Vid. Green's case 18 â—l in B R. Leon. Rep. 262. March Curtie's case 40 El. C. B. roâ— 1302. vouched in Pennant's case Co. 1 par Instit f. 211. b. Pl. Com. fo 133. Hern's Law of Conv. p. 26 94 Condition of Non-payment to re-enter if the Lessor distrain he may not re-enter but he may accept of the Rent and yet re-enter but if he receive the next Rent again then he cannot for that establisheth the Lease Entry into an Acre in the name of all is good enough if the Land lie all in one County If a Lease for Years be rendring 38 â—l in Pennanâ—'s case Co. 3. l. f. 65. see 40 â—l in C. B. Rot. 1302 in March Curtie's case vouched there Hughes's gr Abr. 1 part p. 14. C. 10. Rent with Condition that if the Lessee assign his term the Lessor may re-enter the Lessee assigneth and the Lessor receiveth the Rent of the hands of the Assignee not knowing of the Assignment now notwithstanding the acceptance of the Rent yet the Lessor may re-enter if he please for the receiving the Rent baâ—s him not because he knew not of the Assignment In a Lease for Years if the 28 H 8 Dyer 7. Hughes's gr Ab. 1 par pa. 240. C. 1. Lessee covenant that if he his Executors or Assigns do aliene that then the Lessor shall re-enter and afterwards he makes his Wife Executrix and dies who takes Husband again and he alienes in this case the Lessor may re-enter for the Husband is Assignee in Law A Lease which is onely voidable 21 Car. B. R. Styles Regestum Practicale p. 196. Vide Hanson Norcliff's case Hil. 18 Jâ—c Amphurst Palmer's case P. 19 Jac. Hobart 331. and not absolutely void must be made void by the Lessor's entry but if it be absolutely void there needs no Entry If a man make a Lease for Years yielding to him and his Dr. Stud. l. 1. c 20 p. 35. a. See the Clerk of Assize p. 56. Heirs a Rent upon Condition that if it be behind by the space of 40 daies c. that then it shall be lawful to the Lessor and his Heirs to re-enter the Rent is behind 40 daies c. and is demanded by the Lessor as it ought by Law and is not paid and now the Lessor dieth in this case his Heir may enter for a Title of Entry descends But if the Lessor had died after Dr. Stud. l. 1. c. 20. p. 35. a. Cl. of Assize p. 57. the Feast-day and before the 40th day and the Heir there makes a Demand at the 40th day in this case he may not enter for non-payment ideo nota If a Lease be made to A and Tooker's case 43 El. Co. 2. l. f. 39. B for their Lives and after the Lessor grants the Reversion to C for his Life to which Grant A attorns and after by his Deed surrenders to C all his Interest and Estate and dies in this case C may enter and hold in common with B. If a Lease be made to A for Life and after the Death of B Vide M. 2â—â— 3. 87. Tr. 1 H. â— 31. Perkins 52. And see â—9 â—l in Boraston's case Co. 3 lib. f. 19. 32 H. 6. Tit. Feoffment Faits 99. Co. on â—â— f. 378. a. See the Clerk of Assize p. 60. Herne's Law of Conv. p. 8 Kitchin f. 155. a. the Remainder to another in Fee in this case if A die living B the Remainder is void and so if a Lease be made to R for Life the Remainder to the right Heirs of IS this is good if R outlive IS otherwise it is void If a Lease be made to A for 9 El. Dyer 254. see Pl. Com. 190. Trin. 8 Eliz. Cecil's case Dyer 253. 41 years if he live so long and if he die within the aforesaid Term that then the Wife of the aforesaid A shall have it for the residue of the said years this Limitation is void for if A die the Term ends and the Wife shall have nothing If a man have an House for 40 years and devise the House Pasch 14 El. Dyer 307. to IS without limiting any Estate the Devisee shall then have the intire Term for he may not have for Life nor at Will nor for lesser Term of years But if a man have a Term of 30 years and grants so many of Br. Leases 66. see the Rector of Cheddington's case 40 El. Co. 1. l. f. 153. them as shall be behind at his death this is void for the incertainty for he may live till all be out and then nothing remains If a man let all his Meadow See Dyer f. 80. in the questions there for the L. Willoughby in D containing 10 Acres in this case if there be 20 Acres all pass There needs no Livery and Litt. l. 1. c. 7. Vide Herne's Law of Conv. p. 35. Seisin upon a Lease for Years but the Lessee may enter when he will and if there be Livery and Seisin upon such a Lease to have according to the effect thereof this Livery is void and the Lessee shall but have an Estate for Years A man makes a Lease for Years and after makes a Deed Co. 1 part Inst f. 48. b. See Bettisworâ—h's case 33 â—l in C. B Co. â— l. f. 31. see Herne's Law of Conv. ubi suprá p. 3â— of Feoffment and delivers Seisin the Lessee being upon part of the premisses and not knowing nor assenting to it this Livery is void for though the Lessor hath the Free-hold and Inheritance in him yet the possession is in the Lessee and Livery must be given of the possession but if the Lessee be absent and hath neither Wife nor Servants though he have Cattel upon the ground then the Livery shall be good If a man let Lands or Tenements Lit. l. 1. c. 7. Vide Philipps â—r of Law p. 94. by Deed or without deed for Term of Years the Remainder over to another for Life in Tail or in Fee in this case Livery of Seisin must be given by the Lessor to the Lessee for Years otherwise nothing passeth to them in Remainder the Reasons you have before in this Chapter
shall joyn in an Action of Waste If the Estate-Tail determine Co. ubi suprá 2 H. 4.22 hanging the Action of Waste and the Plaintiff become Tenant in Tail after possibility of Issue extinct the Action of Waste is gone If the Tenant do Waste and 2 H. 4. Co. ubi suprá Noye's Max. p. 33. he in the Reversion dieth the Heir shall not have an Action of Waste for the Waste done in the life of the Ancestor Nor a Bishop Master of an Co. ubi suprá Hospital Parson c. in the time of the Predecessor If Lessee for Years commit Waste and die no Action of Idem ibidem 10 E. 4.1.49 E. 3. 25. 11 E. 2. Wa. 115. 2 Mar. 117. 8 E. 2. Waste 110. Waste lieth against his Executors or Administrators for Waste done before their time If two Coparceners be of a Idem ibid. Reversion and the one of them dies the Aunt and Niece shall join in an Action of Waste If Lands be given two and C. 1 par Inst f. 53. b. 200. b. 24 E. 3. 27. 50 E. 3.3.8 H. 6. 13. Co. 2 part Inst on Stat. Glou. ch 5. the heirs of one of them he that hath the Fee shall not have an Action of Waste upon the Statute of Glouc. for that they are Joynt-tenants but his Heir shall have an Action of Waste against Tenant for Life If Lessee for Life commit F. N. B. 36. b. 14 H 8. f. 11. Kitchin f. 244. a. b. Waste and after surrender his Estate and the Lessor accepts it now the Lessee is discharged of the Waste If a Stranger make Waste Kitchin ibid. 5 â— 4. f. 3. 3 H. 6. f. 1â— b. upon the Lands which one holdeth for Life or Years the Termor shall be punished for it and is left to take his Remedy over But if the Lessor himself Kitchin ubi suprá 5 H. 4. f. 3. make Waste the Tenant shall not suffer for that Waste If the Tenant make Waste Idem ibid. 48 E. 3. f. 15. 34 H. 6. f. 7. â— before his Attornment he shall not be liable to an Action for it If the Lessor covenant to deliver Timber out of the same 44 E. 3. f. 21. Kitchin ubi suprá Land to repair the House let and will not and for lack thereof the Lessee will not repair it but suffers the House to fall in this case he is punishable for such Waste But if the Timber Idem ibid. be to be taken out of other Lands and is not delivered then the Tenant is excusable if he suffer the House to fall and no Action of Waste lies against him Note After the Waste Co. 1 par Inst f. 53. b. done there is a special regard to be had to the continuance of the Reversion in the same estate that it was at the time of the Waste done for if after the Waste he grant it over though he take back the whole Estate again yet is the Waste dispunishable and so it is if he grant the Reversion to the use of himself and his Wife and of his Heirs yet the Waste is dispunishable and so of the like because the Estate of the Reversion continues not but is altered and consequently the Action of Waste for Waste done before which consisteth in privity is gone A Prohibition of Waste did lie against Tenant by the Courtesie Bract. l. 4. f. 315 316. Brit. f. 168. Dr. Stud. l. 2. ch 1. 12 H. 4.3 10 H. 3. Wast 142. 4 H. 3. Wast 140. Co. ubi suprá Tenant in Dower and Guardian in Chivalry by the Common Law but not against Tenant for Life or Years because they came in by the Lessor's own Act and he might have provided that no Waste should be done Tenant by the Courtesie or Noye's Max. p. 33. Co. ubi suprá F. N. B. 56. e. f. and see Co. 3. l. in Walker's ca. â— l. in Beaumont's ca. Regest 72. in Dower can hold of none but the Heir and his Heir by descent and therefore if they grant over their Estate and the Grantee doth Waste yet the Action must be brought against themselves for the Waste done and not against the Assigns or Grantees But if the Heir either before Co. ubi suprá the Assignment had granted or after the Assignment doth grant the Reversion over in both these cases the Grantee must bring the Action of Waste against the Assignee for now the privity is destroyed In all other Cases the Action of Waste must be brought Co. 1 par Inst f. 54. a. 27 E. 4.81 26 E. 5. Waste 10. against the parties that commit the Waste for it is in nature of a Trespass unless it be in case of a Ward for there if the Guardian doth Waste and assign over the Action lieth against the Assignee A Guardian shall not be punished Co. ubi suprá 12 H. 4.3 3 E. 3. Wast 146. Fleta l. 1. ch 11. for Waste done by a Stranger But Tenant by the Courtesie Idem ibid. F. N. B 59. a. 60. g. â— in Dower for Life Years c. shall be punished for VVaste done by a Stranger and are left to take their Remedy over against the Stranger as aforesaid If VVaste be made by F. N. B. 59. l. Kitchin f. 244. b. strange Enemies or sudden Tempest the Termor is dispunishable for such VVaste See before ch 11. p. 127. If Land be let to a Feme F. N. B. 36. b. 3 E. 3. Tâ—â— 20. Kitchin ubi suprá Co. ubi suprá sole and she take Husband who commits VVaste and dies she shall be punished for this VVaste But if the Lease were made Kitchin ibid. Finch l. 1. ch 3. p. 26. to the Husband and Wife and he commits VVaste and dies in this case she shall not be punished for such VVaste unless she agree to the Estate If there be two Joynt-tenants of a VVard and one of Co. 1 part Inst f. 54. a. 33 E. 3. Wast 6. them commit VVaste both shall answer for it An Infant and Baron and Feme shall be punished for Co. ibid. Vide 15 H. 3. Waste 1â— VVaste done by a Stranger If a Feme Tenant for Life Co. ibid. Vide â—lifâ—on's case 35 El. Co. 5. l. f. 73. 49 â— 3.25.46 â— 3. Waste Statham 10 H. 6.11 12. take Husband and the Husband doth VVaste and the VVife dieth in this case he is not punishable for such VVaste but if a Feme be possessed of a Term of years and take Husband who commits VVaste and the VVife dies here he shall be liable to an Action of VVaste for the VVaste by him committed because the Law giveth the Term to him If Tenant for Life grant over Co. ubi suprá 30 E. 3.10 his Estate upon Condition and the Grantee doth VVaste and the Grantor re-entereth for the Condition broken the Action of VVaste shall be brought against the
but it is said he may have an Action of Debt for it but some doubt of it If I lease Lands to another Perkins 91. Co. 1 part Inst f. 46. b. for Years the term to begin at the Feast of Easter next and before the Feast the Lessee grants his term to a Stranger this is a good Grant for he hath an Interest before Entry which may be granted over If Rent be granted to me I Perkins 91. may grant it away to a Stranger before I be seised thereof If a man grant to another Perkins 108. Common of Pasture for 10 Kine in Lands in such a Town though the Grant be general yet the Grantee shall not have Common but in Lands Commonable so as the Grant shall extend but to Pasture-grounds Tenant at Will cannot grant 27 H. 6. f. 3. b. Kitchin p. 237. a. over his Estate for he hath no Interest certain If a Lease be made to Baron Hil. 17 El. in B. R. Co. 1 part Inst f. 46. b. and Feme for term of their Lives the Remainder to the Executors of the Survivor of them if the Husband grant away the term and die yet this shall not bar the Wife If the Husband and Wife be ejected of a Term in the right Co. 1 part Inst f. 46. b. 37 Ass p. 11. Pl. Co. 418. b. of his Wife and the Husband bring an Ejectione firme in his own name and do recover die in this case his Executors shall have it and not the Wife son the Recovery in his own name did vest the Term in himself If a man be possest of a Term Co. ibid. Pl. Co. 2â—0 b. Dame Hale's Case Co. 1 part Inst f. 351. a. See Finch lâ—â— c. 5. p. 72. Dyer 264. b Herne's Law of Conv. p. 81 82. of 40 years in right of his Wife and make a Lease for 20 years reserving Rent and die here the Executors of the Husband shall have the Rent for that Term but the Wife shall have the Remainder of the Term when the 20 years is out but if he had granted the whole Term then she had got nothing A Release made to Tenant Co. 1 part Inst fo 270. a. 49 E. 3.28.32 H. 6.8 Co. ibid f. 46. b. Perkins 602. See the Clerk of Assize p. 50. for Years before his Entry to encrease his Estate is void but a Release of the Rent before Entry is good The Tenant may grant away his Interest to another before Entry and although the Lessor die before Entry yet the Lessee notwithstanding may enter into the Lands or if the Lessee die before Entry his Executors or Administrators may enter and if the Lease be made to two and one die before Entry yet his Interest survives The Lessor cannot grant away Co. 1 par Inst fo 46. b. the Reversion before the Lessee's Entry by the name of a Reversion If a man grant to a Lessee for 12 El. 381. Finch l. 1. c. 3. p. 15. Vid. Lutterell's case 43 El. in B. R. Co. 4 lib. f. 86. Co. 1 par Inst f. 41. a. Vide Co. 5 l. in Spencer's case years that he shall have so many Estovers as shall serve to repair his House or that he shall burn within his House or such like during the Term this is appurtenant to the Land and shall run with the same as a thing appurtenant in whose hands soever the same cometh If a Lessee for years grant a Rent-charge and surrendreth 1 El. 198. Finch lib. 1. cap. 3. p. 27. Noye's Maximes p. 7. the Rent shall be paid during the Term to the Stranger If 2 Tenants in common do Pl. Com. Hill Grange's Case 171. 2 3 P. M. 140. b. 161. b. Finch l. 1. c. 3 p 63. Co. 1 par Inst f. 197. a. grant a Rent of 10 shill this is several and they shall be charged with 20 shill Rent but if they make a Lease and reserve 10 shill Rent they shall have no more but onely 10 shill between them If a man make a Lease provided â— N. B. 223. Mich. 3 Jac. in C B. Co. 1 par Inst f. 52. b. 45 El. in B. R. Dumpor's Case Co. 4 l. f. â—19 Hern's Law of Conveyances 110. that the Lessee or his Assigns shall not aliene the premisses without special licence of the Lessor c. and after the Lessor giveth licence to aliene the same or any part in this case the Lessee may aliene and his Assigns ad infinitum without any more License for the Proviso is determined for ever and if the Lessor die before the Lessee aliene yet that does not countermand it If the words of a Lease be M. 3. E. 6. Dyer 65 66. Hughes's gr Abr. 1 part p. 417. that it shall not be lawful for the Lessee to aliene without the assent of the Lessor on pain of Forfeiture this Restraint continueth but during the Life of the Lessor and Lessee If a Lessee for years devise Dyer f. 75. Cowel's Inst p. 142 143. Bro. Chattels 23. Donâ— 57. Herne's Law of Conv. p. 81. his whole term to A provided if he die while I. S. is alive then the Residue shall remain to I. S A alienes and dies in this case I. S. is without remedy If a man make a Lease for 27 H. 8.19 Finch l. 1. c. 3. p. 65. years reserving Rent to him Mich. 5 Jac. inter Woâ—ton Edwin in B. R. Co. 1 part Inst f. 47. a. Goldsbor Rep. p. 148. pl. 68. Vid. Pacis Consultum p. 92. without naming his Heirs the Rent shall then determine upon his death if he die within the Term or if it be to him and his Assigns or Executors it is all one but if it be reserved generally without shewing to whom it shall go to his Heirs If a man lease Land to another See 17 El. in B. R. inter Pepal Hammington Poph. 117 118. by Deed indented except and alwaies reserved to the Lessor all great Trees growing upon the same Land by this Lease the great Trees shall not pass If two Copartners make a Finch l. 1. c. 3. p. 9. Lease reserving Rent they shall have this Rent in common as they have the Reversion but if afterwards they grant the Reversion excepting the Rent then they shall be Joint-tenants of the Rent If a man let Lands for years Dyer 56 82. Co. 1 par Inst f. 148. b. Hughes's gr Abr. p. 193. 1 par c. 6. reserving Rent and a Stranger doth recover part of the Land then the Rent shall be apportioned that is to say divided and the Lessee shall pay having respect to that which is recovered and to that which yet remaineth in his hands according to the value If a man make a Lease of a 1 2 P. M. 104. Finch l. 1. c. 3. p. 18. Perkins 643. 11 H. 4. 2. Philipps Pr. of Law p. 122. Mannor
Idem ibid. Brit. f. 168. b. 6. El. in Griffins ' case of the Sea to be in decay so as by the flowing and reflowing of the Sea the Meadow or Marsh is surrounded whereby the same becomes unprofitable but if it be suddenly by 6 El. ubi suprá ◠N. B. 59. n. the rage and violence of the Sea occasioned by some Tempest or the like without any default of the Tenant this is no Waste punishable If the Tenant repair not the Co. ubi suprá 29 H. 8. Dyer 33. 22 H. 6.4.10 H. 7. 5. a. Kitchin f. 241. b Banks or Walls of Rivers or other Waters whereby his Ground is surrounded and becomes rushy and unprofitable this is Waste To suffer Pasture-ground to Kitchin ibid. 20 H. 6. f. 1. be surrounded with water so that it becomes rushy and nothing worth or Arable-Land to be surrounded so that nothing remains but tough Clay this is Waste If the Tenant convert Arable-Land Co 1 part Inst f. 53. b. 29 H. 8. Dyer 37. Hobart Rep. f. 234. Vide Kitchin f. 241. b. 10 H. 7.5 a. 44 E. 3.44 Com. Att. p. 168. into Wood or è converso or Meadow into Arable it is Waste for it doth not onely change the course of his Husbandry but the proof of his Evidence To suffer Arable-Land to lie 2 H. 6. f. 11. F. N. B. 59. n. fresh so that it is full of Thorns is no Waste If a man lease his Lands in Co. 1 par Inst f. 54. b. 17 E. 3.7 9 H. 6.66 F. N. B. 149. c. 59. n. Vide Hil 15 Jac. in the Lord Darcy Askwith's case Hobart's Rep. f. 234. Herne's Law of Conv. p. 54 55. which are Mines of Coals or the like without mentioning the Mines in the Lease the Lessee for such Mines as are open at the time of the Lease made may dig lawfully and take the profits thereof but he may not dig for any new ones it is Waste If there be open Mines and Co. ubi suprá the Owner make a Lease of the Vide Saunders's case 41 El. in Co. B. Co. 5. l. f. 12. Herne's Law of Conv. p. 54 55. Land with the Mines therein this shall extend to the open Mines onely and not to any hidden Mines but if there be no open Mines and the Lease is made of the Land together with all Mines therein in this case the Tenant may dig for them and enjoy the benefit thereof otherwise the words should be void If a Lease be made to one of 17 E. 3. Tit. 101. Kitchin f. 248. a. Lands to occupy the same after the best way he can or to make his best profit of them yet this shall be intended onely to be after such manner as is according to Right and Law for in this case the Lessee may not plow up Meadow or pull down Houses c. for if he do he shall be punished in Waste If the Lessee make the Villanes Co. 1 part Inst f. 53. b. or Tenants at VVill poor where they were rich when he came in whereby they depart from their Farms this is Exile and punishable CHAP. XII Who are punishable in Waste and for what Waste c. WAste in Latine is called Co. 1 part Inst f. 52. b. Vastum à Vastando from wasting and depopulating There are two kinds of Idem f. 53. a. Waste that is to say Voluntary or Actual Waste and Permissive Waste An Action of Waste lieth Noye's Max. p. 33. Co. 1 part Inst f. 53. a. 2 part Inst f. 302. Pl. Com. f. 467. b. 68. a. Philipps Pr. of Law p. 32. Vid. Mag. Charta ch 4. Stat. Glouc. against Tenant by the Courtesie Tenant for Life for Years or half a year Tenant in Dower or Guardian in Chivalry by him that hath the Estate immediate ch 5. Rastal Wast 1.4.5 Wingate's Abr. Stat. p. 551 552. 4 H. 6. f. 11. Kitchin f. 338. a. of Inheritance for Waste or Destruction in Houses Gardens VVoods Trees Lands Meadows c. or in Exile of men to the disherison of him in the Reversion or Remainder and they shall lose the place wasted and treble Dammages It doth not lie against Guardian in Soccage but an Action Co. 1 part Inst f. 54. a. Ferrer's Mag. Charta f. 26. b. of Account or Trespass Waste lieth not against Tenant Noye's Max. p. 33. F. N. B. 59. c. 16 E. 3. Tit. Wast 100.2 E. 2. Wast 1. by Elegit Statute-Merchant or the Staple but an Action of Account after the Debt and Dammages levied Neither doth it lie against Tenant at Will but if such Co. 1 par Inst f. 57. a. 21 H. 6.38 48 E. 3. f. 25. 11 H. 6. f. 38. 12 E. 4. f. 8.22 E. 4.5.21 H. 6. f. 43. Kitchin f. 237. a. b. Walgrave Somerset's ca. Mich. 29 30 El. Goldsb Rep. p. 72. pl. 17. Tenant voluntarily pull down the Houses or cut down Timber-trees c. in this case the Lord may have an Action of Trespass against him Quare vi armis c. but for permissive Waste the Lord hath no Remedie against him Either Waste or Account will lie against Tenant in Mortgage Noye's Max. ubi suprá for he hath Fee Conditional There are 5 several Writs of Waste 2 at the Common Co. 1 part Inst f. 54. a. Law for Waste done by Tenant in Dower or the Guardian and 3 by the Statute-Law for Waste done by Tenant for Life for Years and Tenant by the Courtesie If two or more Joint-tenants Co. 1 part Inst f. 200. b. Reg. 163. f. N. B. 127. 1 part Inst f. 54. b. or Tenants in common be of a House of Habitation and the one of them will not repair the House the other in that case may have a Writ De reparatione facienda If the Lessor covenant to repair 12 H. 8. f. 1. Co. 1 par Inst f. 54. b. Vid. Herne's Law of Conv. p. 54. the House and doth not in this case the Lessee may cut Timber growing upon the ground and repair it though he be not compellable thereunto and shall not be punished in Waste for cutting the Wood. If a man make a Lease of an Co. ubi suprá House and Lands without impeachment of Waste for the House yet may the Lessee notwithstanding repair the House with the Timber growing upon the ground though he may utterly waste the House if he will No person shall have an Action Co. 1 part Inst f. 53. b. F. N. B. 59. f. 8 R. 2. Wast 47.27 H. 8.13 of Waste unless he hath the immediate state of Inheritance but sometime another shall joyn with him for Conformity as if a Reversion be granted to two and the Heirs of the one they two shall joyn in an Action of Waste And in like sort the surviving Idem ibid. Coparcener and the Tenant by the Courtesie