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
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
good of such Leases by the said Statute there are nine things necessary to be observed belonging to them all and some other to some of them in particular 1. The Lease must be made by Deed indented 2. He must be made to begin from the day of the making or from the making thereof 3. If there be an old Lease in being it must be surrendred or expired or ended within a year of the making of the Lease and the surrender must be absolute and not conditionall 4. There must not be a double Lease in being at one time As if a Lease for years be made according to the Statute he in the Reversion cannot expulse the Lessee and make a Lease for life or lives according to the Statute nor e converso for the words of the Statute be to make a Lease for three lives or one and twenty yeares so as the one or the other may be made and not both 5. It must not exceed three lives or one and twenty yeares from the making of it but it may be for a Lesser terme or fewer lives 6. It must be of Lands Tenements or Hereditaments maynorable or corporeall which are necessary to be letten and whereunto a Rent by Law may be reserved and not of things that lye in Grant as Advowsons Faires Markets Franchises and the like out whereof a Rent cannot be reserved 7. It must be of Lands or Tenements which have been most commonly letten by the space of twenty years next before the Lease made so as if it be letten for eleven yeares at one or severall times within those twenty yeares it is sufficient A Grant by Copy of Court Roll in fee for life or yeares is a good letting to farme within this Statute for he is but Tenant at will Secund. Cons Manerii And so it is of a Lease at will by the Common Law But those lettings to Farme must be made by some seised of an Estate of inheritance and not by a Guardian in Chivalry Tenant by Gurtesie Tenant in Dower or the like 8. That upon every such Lease there be reserved yearely during the said Lease due and payable to the Lessors their Heirs and Successors c. so much yearly Farme or Rent as hath been most accustomably yeilded and paid for the Land within twenty yeares before such Lease made Hereby first it appeareth that nothing can be demised by authority of this Act but that whereon a Rent may be lawfully reserved Secondly that where not only a yearly Rent was formerly reserved but things not annuall as Herriots or any Fine or other profit at or upon the death of the farmor yet if the yearly rent be reserved upon a Lease made by force of this Statute it sufficeth by the expresse words of the Act And if twenty acres of land have been accustomably letten and a Lease is made of these twenty and one acre which was not accustomably letten reserving the customably yearely rent and so much more as exceeds the value of the other acre this Lease is not warrantably letten and the rent issueth out of the whole If Tenant in taile let part of the land accustomably letten and reserve a rent pro rat or more this is good for that is in substance the accustomable Rent If two Coparceners be Tenant in taile of 20. acres every one of equall value and usually letten and they make partition so as each have ten acres they may make Leases of their severall parts each of them reserving the halfe of the accustomable rent If the usuall Rent had been payable at foure dayes or Feasts of the yeare yet if it be reserved yearly payable at one Feast it is sufficient for the words of the Statute be reserved yearely Ninthly nor to any Lease to be made without impeachment of Waste therefore if a Lease be made for life the Remainder for life c. this is not Warranted by the Statute because it is dispunishable for VVaste but if a Lease be made to one during three lives this is good for the Occupant if any happen shall be punished for VVaste the words of the Statute be seised in the right of his Church yet if a Bishop that is seised in jure Episcopatus A Deane of his sole possessions in jure Decanatus An Arch-deacon in jure Archidiaconatus A Prebendary and the life are within the Statute for every of them is generally seised in jure Ecclesiae All Grants Feoffments Leases and other Conveyances or Estates to any Master or Fellowes of a Colledge Deane and Chapiter Master or Guardian of an Hospitall Parson Vicar c. other then for one and twenty yeares or three lives from the time of such Lease or Grant reserving the accustomable yearely rent yearly payable shall be meerly void 18 Eliz cap. 11. All Leases made by such persons as 13 Eliz. cap. 10. before where another Lease for yeares is in being not to be expired surrendred or ended within three years next after the making of such new Lease shall be void All Bonds and Covenants for renewing or making of any Lease contrary hereunto or to 13 Eliz. cap. 10. before shall be void But a Parson and Vicar are excepted out of the Statute of 32 H. 8. and therefore if either of them make a Lease for three lives c. of lands usually letten reserving the usuall rent it must be also confirmed by the Patron and Ordinary because it is excepted out of 32 H. 8. and not restrained by the Statute of 1. or 13 Eliz. and what hath been said concerning a Lease for three lives doth hold for a Lease of one and twenty yeares Now to speak somewhat of the disabling Statutes of 1. and 13 Eliz. the words of the exception out of the restraint and disability of 1 Eliz. are Notes of things well and duty to be observed other then for the terme of one and twenty years or three lives from such time as any Grant or assurance shall be given whereupon the old and accustomed yearely rent or more shall be reserved And to that effect is the exception in the Statute of 13 Eliz. First it is to be understood that neither of these nor any other do in any sort alter or change the enabling Statute of 32 H. 8â— but leaveth it for a patterne in many things for Lease to be made for others Secondly it is to bee knowne that no lease made according to exceptation of 1 Eliz and 13. Eliz. and not warranted by the Statute of 32 H. 8. if it be made by a Bishop or any sole Corporation but it must be confirmed by the Deanes and Chapiters or others that have interest as hath been said in the case of the Parson and Vicar but examples do illustrate If a Bishop make a Lease for one and twenty yeares and all these yeares being spent saving three or more yet may the Bishop make a new Lease to another for one and twenty yeares to begin from the making
8. of Uses the terme of the Feoffee was saved Also in the same Court Anno 28 Eliz. in the case of Ized it was resolved that where the Lord enfeoffed the Copyholder to the use of others that the Copyhold Estate by the saving of the said Act was preserved Devises IT is a principle in Law A Lease to A. for life the remainder to the right heires of B. B. haveing a daughter dieth his wife privily with child of a Son in this case the daughter claimeth by purchase and therefore the son borne after shall never divest it Coke 1. pars fo 95. 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 then the gift shall be void Plow fo 345. For if a man devise a Lease or goods to I. S. which dieth and then the devisor dieth the Executor of I. S. shall not have them And if a man seised of lands in Fee devisable make his will and thereby devise his lands to I. S. and his heires and then I. S. dieth and afterwards the devisor dieth I. S. and his heires nor any of them shall take nothing by this devise and here the thing ought not to vest in the devisee untill the death of the devisor at which time the devisee was dead and so was not in rerum natura And as to that heires are named in the gift that is to say it is given to the devisee and to his heires for which cause they shall be contemned and concluded in the intent that is not so for heires are not there taken to be immediately takers but onely to expresse the quantity of the estate that the devisee should have for without expressing heires the Devisor might not properly make an estate in Feesimple in the devisee and none other But if a man devise Lands to one and his heires and the devisor dieth in the life of the devisee and then the devisee dieth now the heire shall take by the devise Coke prima pars fo 95 If a man lease lands to a man for life Contingent remainder and if the Lessor die without heire of his body that then the Lessee shall have the land to him and his heires in this case if the Lessee for life dieth and then the lessor dieth without heires of his body the heire of the lessee shall not have the land and so clearely holden Plowden com fo 483. Quere de hoc It was agreed for good law that the occupation of a Chattel may be devised by way of remainder but if the thing it selfe were devised to use the remainder were void for the gift or devise of a Chattel for an howre is pro imperpetuum and the donee or devisee may give it sell it and dispose it and the remainder thereupon is void Brook devise fo 13. The occupation of a Chattel personall may be devised by way of remainder A Lease devised 20. yeares to one for the first ten yeares the remainder to another or devised to one for so many yeares as he shall live the remainder to another a delivery to the first devisee serveth for him in the remainder also So though it be but the occupation of a terme which is so devised for the occupation and profits of the Land is all one with land it selfe but if the occupation of a Booke glasse or other Chattel personall be devised to one for life and after his death to another in like sort there a delivery to the first is no delivery to the other for their occupations are severall and in such Chattles personall the occupation is distinct from the property 7 H. 6. 30. Plowden fo 522. A devise to one and his heires Males is an estate taile but a devise to I. S. in Fee upon condition that if he pay not I. D 10 l. then I. D. to have it in Fee is a void condition and remainder for it is contrary to the law 27 H. 8. 27. 29 H. 8. Dier 33. But a devise of the fee-simple to Alice S. and after her death to B. is onely an estate for life the remainder for life to B. the remainder to Alice in Fee so as the husband of Alice In a devise by what words Fee-simple passeth if she die in the life of B. cannot be Tenant by courtesie 19 Eliz. Dier 357. If a man devise lands to a man for ever or to give and to sell or in fee-simple or to him and his Assignes for ever Fee-simple passeth but if the devise bee to a man and his Assignes without saying for ever the Devisee hath but an estate for life if a man Devise lands to one sanguini suo that is Fee-simple but if it bee semini suo it is estate taile If a man Devise Lands upon condition A devise upon a condition repugnant is voide that the Devisee shall not Alien this condition is void and so it is of a Grant Release Confirmation or other conveyance whereby a Fee-simple doth passe And so it is if a man bee possest of a Lease for yeares or of a Horse or of any other Chattel reall or personall and give it or set it upon any such condition When a man deviseth that the Executors shall set the Land A devise that the Executors shall sell the Land there the Land descendeth in the meane time to the heire and untill the Sale be made the heir may enter and take the profits But when the land is devised to his Executor to be sold there the devise taketh away the discent A device of Land to the Executors to be by them sold and vesteth the state of the land in the Executors and they may enter and take the profits make sale according to the Devise and here it appeareth that when a man deviseth his Tenements to be sold by his Executors is all one as if he had devised his Tenements to his Executors to be sold And the reason is because he deviseth the Tenements whereby he makes the discent Although that the last Will shall avoid the former Will yet if a man be seised of lands in Fee No alteration of such a Will and therof enfeoffe a stranger and declare his Will upon the Livery of Seisin made to the stranger that is that the Feoffee shall bee seised to the use of the Feoffor for terme of his life the remainder to I. S. in Fee now he may not alter this Will by a latter Will in prejudice of ceste que use in remainder because the use is in him in remainder forthwith so that he may set it but if in the same case the remainder of the use had been to the right heires of the Feoffor then the Feoffor might alter
this use by his last Will and if the Feoffor had declared his Will upon the Livery of Seisin that the Feoffee should be seised to the use of I. F. for life the remainder to the use of the Feoffor or in taile the remainder to the use of a stranger in Fee in this case the Feoffor may not alter this Will by his last Will Perkins Testaments fo 93. and 92. Such a Wil may be altered If a man seised of Lands in Fee thereof enfeoffe a stranger to the intent to performe his Will and after the Feoffor maketh his Will and deviseth the same Land to a stranger in Fee in this case the Devisor may alter this Will by a latter Will because in this case the Devisee shall not have this Land but by force of the Testatment and that may not take effect till after the death of the Devisor And the same law it is of Lands Tenements Rents or Common c. devisable by the custome used in any place c. And also the same law is it of all Chattels reall and personall devised Perkins Testaments fo 93. A Feoffment to performe a Will When a Feoffement is made to a future use as to the performance of his last Will the Feoffees shall bee seised to the use of the Feoffor and his heires in the meane time 35 H. 6. 22. 15 H. 7. 12. 37 H 6. 36. 11. H. 4. 52. 7 H. 4. 22. 1 Mariae 111. Dier Of such Will there is no alteration A Feoffment made to the use of ones Will if his Will be declared before or at the time of his Feoffment it cannot bee altered because it is executed otherwise it is if his Will be declared afterwards 20 â— 7. 11. If a man devise his land to W. N. solvendum 10 l. to his Executors and die A man deviseth lands to his wife so long as she should continue sole and if she marry the remainder in taile the remainder to his right heire so that the marriage is the limitation which determineth the estate and so the remainder beginneth upon the estate ended there Coke 10. pars fo 41. the Devisee hath Feesimple by reason of the payment without words to his heires for ever And that shall bee intended the intent of the Devisor so if a man sell land to W. N for 20 l. that shall be intended a Sale in Fee-simple without words heires for conscience c. Brook estates fo 78. Termor deviseth to his wife the Land for so many yeares as she should live and afterward the terme to his son and made his wife Executrix and died the wife prooved the Testament and entred and agreed to the devise and afterwards shee aliened the terme and died the son or his Administrator may enter A man deviseth his Land to I. S. that shall bee taken but for terme for life but if he saith paying 100 l. to W. N. that shall bee intended Fee-simple and if hee doth not pay it in his life time yet if his heire or Executor pay it it sufficeth Quaere of his Assignee Brooke Testament 18. A Devise to a man and his heires hee hath issue a daughter and dieth his wife privily with Child of a Son the daughter entreth she shall retaine the land for ever and yet the son is heire but not to toll the land before vested in the daughter If Lessee for yeares devise his terme or other his goods or Chattels by Testament to one for terme of his life the remainder over to another and dieth and the Devisee entreth and doth not Alien the terme nor give nor sell the Chattel and die there hee in remainder shall have it but if the first devisee had aliened given or sold it he in remainder had beene remedilesse Brook Chattel 23. And so B. thinketh it if it be forfeited in his life he in remainder is without remedie If a terme be devised to one his heirs males of his body his heire shall not have it but his executor for a terme which is but a Chattel may not be entailed and such Devisee may well Alien the terme to whom please him Coke 10. pars fo 22. If a man devise Lands to one to have to him and his heires after the death of the Devisors wife the wife although she were not named before the Habendum shall have an estate for life by this Devise The husband possest of a terme in jure uxoris suae maketh a Lease of parcell rendant rent the wife shall have the residue of the terme but not the rent 9. Eliz. Dier fo 246. If a man devise his land to his wife for her life upon condition that if she marry that then the land shall remaine to I. S. in taile this is a good remainder for the construction of this devise is to make the same condition to be a lymitation and not any condition and upon a lymitation or determination of a particular estate which is certaine and not uncertaine a remainder clearly may well depend A man possessed of a terme of yeares in the right of his wife cannot devise it to another by his Will for she hath an estate in it before and at the time of his death which preventeth the Devisee nor can he grant charge out of it for she surviving is remitted to the terme and therefore shall avoide the charge But by by an expresse Act he might in his life time have given it away but if a woman having Chattels personall take a husband the law devesteth the property out of her and vesteth it in her husband only What Deeds of Gifts shall be counted fraudulent Fraud IF a man make a generall Deed of Gift of all his goods this is suspicious to bee done upon fraud to deceive the Creditors And if a man which is in debt make a Deed of gift of all his goods to protract the taking of them in execution for his debt this deed of gift is void as against those to whom he stood indebted But as against himselfe his owne Executor or Administrator or any man to whom afterwards he shall sell them or convey them it is good What is sale bona fide and what not By sale any man may convey his own goods to another although he may feare Execution for debts he may sell them out-right for money at any time before the Execution served so that there be no reservation of trust between them that providing the money he shall have the goods againe for that trust in such case doth prove plainely a fraud to prevent the Creditors from taking the goods in execution A Deed of gift of goods to defraud Creditors is voide against them but is good against him his Executors or ministrators Where Sale in a Market Overt shall Bar the owner and where not IF a man steale my Goods or Cartel Market Overt or take them from me in jest or borrow them of mee and
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
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
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
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
his wife and to the heires of A. of her body by I. to be begotten * Tail generall in the husband the wife for life only Habendum to I. and A. his wife and to the heires which I. shall beget upon the body of A. his wife both have estate taile because these words heires is not limited more to one then to the other * The wife hath taile generall the husband frank tenement Both have estate taile Taile speciall in both Habendum to I. and A. his wife and to the heires of their two bodies this is taile speciall as well in the husband as in the wife But if I. give Lands to I. A to his heires which he shall beget of A. his wife here A. hath but estate for life and I. hath estate in taile speciall but in this case if he had said to the heires and not to his heires then either of them should have had an estate in taile speciall because these words heirs is referred as well to the one as to the other If Tenant in taile speciall hath issue and die the issue is forthwith remitted to the taile generall and such issue and all his issue shall stand so seised for evermore Vses 27. H. 8. cap. 10. Creation of estates taile raised by way of limitation of uses The expression of divers and sundry uses TO have to the said Feoffees their heirs and assignes for ever by the severall uses intents and purposes and under and upon the conditions provisoes and limitations hereafter in and by these presents limited and declared and to no other use intent or purpose that is to say the aforesaid Mannors of Compton c. withall and singular their and every of their rights members and appurtenances whatsoever to the use and behoofe of the said H. P. for the terme of his life without impeachment of c. For sale of Lands to pay debts and Legacies and after his decease to the use and behoof of the abovenamed Feoffees and their heirs in trust and confidence and to the intent purpose that they the said Feoffees and the survivors or Survivor of them shall and will by sale of such parts and parcels of the Premises as they or the survivors or survivor of them or their heirs shall think fit to bee sold and by the issues and profits of the residue pay and discharge all the Debts Legacies and Funeral expences of the said Sr. H. P. and after payment and discharge of the same debts Legacies and expences shall and will conveigh and assure all the residue of the Premises limited to their use For intailing of Lands to the tenth generation and remaining unsold unto the said H. P. Esq sonne of the said Sir H P. and the heires of his body issuing and for default of such heires to the use of the said La. F. P. La. S. and I. F. and the heires of their severall bodies issuing and for default of such issue to the use of the right heires of the said Sir H. Poole for ever To the use of the first son of the body of the said K. P. lawfully to be begotten and of the heires males of the body of such first son issuing Entaile first to the issue male and then to the issue female when they shall come to the age of 〈◊〉 And the said Mannors of S. P. C. c. and all other the Premises whereof and wherein there is not any use in and by these presents already specially lymited and declared to the use and behoofe of the said Sir H. P. Knight for the terme of his life without impeachment c. And from and after his decease to the use and behoofe of the said H P. son of the said Sir H P. for the tearme of the life of the said H P. the son without impeachment c and from and after his decease to the use of the first son to be begotten of the said H. P. son of the said Sir H. P. and of the heires males of the body of the said first son issuing and so on to the tenth son and for default of such heires to the use of every other the sons to be begotten by the said H. son of the said Sir H P. as they shall be in seniority or age and of the heirs males of the severall bodies issuing that is to say as for and concerning the Mannors of c. with their and every of their severall rights members and appurtenances to the use of him the said H. P. for and during the tearme of his naturall life without c. and from and after his decease to the use of the first son of the body of the said H P lawfully to be begotten A Fine was levied to the A. uses of and the heries males of his body untill hee or the heirs males of his body have done such an act and after such a thing or act done to the use of another in taile died without issue without anything done and it was adjudged that the remainder was in contingency shall never fall Coke 10. a part fo 85. Uses Jointer for the Wife Taile speciall and of the heires males of the body of such first son issuing and so to the tenth son And for default of such issue then to the use of every other the sons c. and for default of such issue to the use of B P. the now first begotten daughter of him the said H P. from and after such time as the shall accomplish the age of sixteen yeares for and during the terme of her life and after her decease to the use of the first Son of her body which shall be begotten by such her husband which shall be of the sirname and blood of the Pooles and of the heires males of the body of such her first son issuing and so to the tenth son Then entaile the lands in forme aforesaid to the first 2. 3. 4. 5. and tenth daughter and this limitation following and to the use of the Executors of him the said H P. for and untill such time as the severall daughters which shall take any benefit by vertue of these presents shall accomplish their severall ages of 16. yeares respectively and after the death of the said H P. without issue male or female qualified as aforesaid Then to the use of Dame F P wife of one Sir N P Knight sister of the said H P for and during the terme of her naturall life and after her decease to the use of H P. Esq the first son of the said sir N. P. and Dame F and of the heires males of the body of the said H issuing and so to the tenth son And for default of such issue then to the use of the right heires of the said H P party to these presents for ever And as for and concerning the Mannors of C and S to the use of the said H P for
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.
the mortgagor or obligor needeth not to tender it againe before the last instant for by the expresse letter of the condition the money is to be paid upon the day indefinitly and convenient time before the last instant is the extreame time appointed by the law to the end the one should not prevent the other the one being sometimes there and the other not and therefore the law appointeth the extream time in the day to the intent both parties may certainly meet together But if both parties meet at any time of the same day and the Mortgagor or Obligor make tender in the place to the Mortgagee or Obligee and he refuse the penalty is saved for ever and needs not make any other tender Wades case 5. part fo 1141. If a condition be broken for non payment of rent Condition broken Assise brought Distresse Acceptance Bar of entry yet if the Feoffer bring an Assise for the rent due at that time he shall never enter for the condition broken because he affirmeth the rent to have continuance and thereby waiveth the condition and so it is if the rent had had a clause of distresse annexed unto it if the Feoffer had distrained for the rent for non payment wherof the condition was broken but hee may receive that rent and acquit the same and yet enter for the condition broken but if hee accept a rent due at another day after he shall not enter for the conditon broken because he therby affirmeth the Lease to have continuance All grantees of reversions may enter upon Farmors If a lessor bargaine and sell the reversion by Deed Indented and inroled or or if the lessor make a Feoffment in fee and the Lessee re-enter the grantor or feoffe shall not take any advantage of any condition without making notice to the Lessee for any forfeiture or condition and have like advantages against them by action onely for any other covenants condition or agreement contained in the Indenture of their lease as the Lessors their heires or successors might and the like for the Lessees against the Grantees of the reversion recovery in value only excepted 32. H. 8. cap. 34. If a man make a gift in taile or a lease for life And albeit the whole words of the statute of 32. H. S. be for non-payment of the rent or for dooing of wast or other forfeiture yet the entry or claime must be made upon a condition broken upon condition that if the Denee or Lessee go not to Rome before such a day the Lease shall cease or be void the Grantee of the reversion shall never take advantage of this condition because the estate cannot cease before an entry but if the lease had beene for yeares there the Grantee should have taken advantage of the condition because the lease for yeares ipso facto by the breach of the condition without any entry was void for a lease for yeares may begin without ceremony and so may end without ceremony but an estate of free-hold cannot begin nor end without ceremony and therefore not to be avoided without an entry which entry descendeth to the heire and not to any stranger Grantees or Assignes shall not take benefit of every forfeiture by force of a condition but onely of such conditions as either are incident to the reversion or rent or the benefit of the estate as for not doing of waste for keeping the houses in reparations for making of Fences scowring of ditches for preserving of Wood and such like and not for payment of any sum in grosse delivery of Corne Wood or the like And therefore regularly when any man will take advantage of a condition if he may enter he must enter and when he cannot enter he must make a claime and the reason is for that a free-hold and an inheritance shall not cease without entry or claime and also the Feoffor or Grantor may waive the condition For if a man grant an Advowson to a man and his heires upon condition that if the Grantor c. pay 20. pounds on such a day c. the estate of the grantee shall cease or be utterly voide the Grantor payeth the money yet the estate is not revested in the Grantor before a claime and that claime must be made at the Church And so it is of a reversion or a remainder of a Rent common or the like there must be a claime before the estate bee revested in the Grantor by force of the condition and that claime must be made upon the Land If a man bargaine and sell Land by Deed indented and inrolled with a Proviso that if the bargenor pay c. that then the estate shall cease and be void hee payeth the money yet the estate is not revested in the Bargenor before re-entry and so it is if a bargaine and sale be made of a reversion remainder advowson rent common c. If a Lessor bargaine and sell the reversion by Deed Indented and Inroled or if the Lessor make a Feofment in Fee and the Lessee re-enter the Grantee or Feoffee shall not take advantage of any condition without making notice to the Lessee When a man by Deed indented If a man make a lease for life or yeares and after levie a fine to A. to the use of B. and his heires B. shall distraine and have an Action of Waste although the conusee had never any Attornment because the reversion is vested in him by force of the statute and hath no remedy to compell the Lessee to Attorn New Litttleton fo 32. doth bargaine and sell lands and before the inrolement levieth a fine thereof and after the deed is inrolled the conusee shal be in by the fine and not by the indenture inrolled and therefore the conusee in this case cannot take advantage of a condition before Attornment Where conusee by fine of a Revertion before Attornment doth bargaine and sell the revertion to another by Deed Indented and Inrolled But if conusee of a 〈◊〉 before any attornment by Deed indented and inrolled bargaineth and selleth the Seignory to another the bargainee shall not distraine because the bargenor could not distraine the Bargaine shall not distraine for the Rent reserved upon the Lease but if the conuse hath had express attornement then the Bargaine shall distraine without any Atornement If the Lessor bargaine and sell his revesion by Deed indented and inrolled But if a fine had been levied to a stranger to the use of a second party then the second person had been in by the statute and so Attornement needles quod nota the bargainee although he needs not any Attornement shall never take benefit of a condition upon a demand of rent without giving notice to the Lessee of the bargaine and sale and therefore notice in this case is requisite Note that a fine levied before the Inrolement of the bargain and sale maketh the conusee to be in by the fine and not
by the bargaine and sale And the bargaine of a reversion shall never take advantage of a condition before notice given Edward Fox for the consideration of 5 pound demysed and granted certaine Tenements to have from the day of the date of the Indenture for ninety nine years A Lease of the Premisses formerly made being then in being It was adjudged that this Demise and Grant upon consideration of fifty pounds did amount to a Bargaine and Sale for the said years whereupon there needeth no Attornment In this case of a Lease for term of years which is a Chattell there needeth no Inrolement for being but a term of years and no Estate of Frank-tenement there needeth no Attornment because it is Executed by the Statute of 27 H. 8 S. Coke 8. pars fol. 94. Livery and Seisin in toto vide fol. 35. Note An actuall delivery of a writing sealed to the party without any words is a good delivery And therefore if A. make a writing to B. and sealeth and delivereth it to B. as a Scrow to take effect as his Deed when certaine conditions are performed that is his Deed forthwith for the Law respecteth the delivery to the party himself and rejecteth the words which shall make the expresse delivery to the party upon the matter no delivery So that the Deed is effectuall though the conditions he never performed And there is a diversity when it is delivered to the pary himselfe and when to a stranger If a Writing be sealed and then it lieth in a Window or on a Table and the Obligor saith to the Obligee See there the writing take it as my Deed and he take it accordingly this is a good delivery in Law Coke 9. pars fol. 137. A Livery in Deed may be done two manner of waies by a solemne Act and words as by delivery of the Ring or Hasp of the Doore by a branch or twig of a Tree or by a Turff of the Land And with these or the like words the Feoffor and the Feoffee both holding the Deed of Feoffment and the Ring of the doore Hasp Branch Twig or Turff and the Feoffor saying Here I deliver you seisin and possession of this house in the name of all the Lands and Tenements contained in this Deed according to the forme and effect of this Deed. Or by words without any Ceremony or Act As the Feoffor being at the house doore or within the house saith Here I deliver you seisin and possession of this house in the name of seisin and possession of all the Lands and Tenements contained in this Deed Or enter into the house or land and God give you joy Or I am content you shall enjoy this Land according to the Deed. But if a man deliver the Deed of Feoffment upon the Land this amounts to no livery of the Land for it hath another operation to take effect as a Deed But if he deliver the Deed upon the Land in name of seisin of all the Lands contained in the Deed this is a good Livery If divers parcels be contained in a Deed and the Feoffor delivers seisure of one parcell according to the Deed all the parcels do passe albeit he saith not in name of all because the Deed containeth all And if there be divers Feoffees and he maketh livery to one according to the Deed the Land passeth to all the Feoffees And yet the plainer way is to say in the name of the whole or all the Feoffees If a man make a Charter in Fee and deliver Seisin for life secundum formam Charte the whole Fee-simple shall passe for it shall be taken most strong against the Feoffor If a man make a Lease for years by Deed and deliver seisin according to the forme and effect of the Deed yet he hath but an Estate for years and the Livery is void A man makes a Lease for years But if Lessee for years make a Lease for a certaine terme of any parcell and so divide the possession of that from the residue if of such parcell so severed Livery he made the possession in the residue by the first Lessee is not any impediment to the Livery for this parcell Coke 2. pars Betsworths case and after makes a Deed of Feoffment and delivers seisin the Lessee being in possession and not assenting to the Feoffment this Livery is void for albeit the Feoffor hath the Free-hold and the Inheritance in him yet that is not sufficient for a Livery must be given of the possession also But if the Lessee be absent and hath neither Wife nor Servants though he hath Cattell upon the ground the Livery and Seisin shall be good If a man be seised of a house and of divers severall Closes in one County in Fee and makes a Lease therof for years and afterwards makes a Feoffment in Fee of the same and makes Livery and Seisin in the Closes the Lessee or his Wife or Servants then being in the house the Livery is void for the whole The delivery of a peice of Gold or any other thing upon the land in name of seisin is sufficient Thorowgoods case Coke 9. pars fol. 136 for the Lessee cannot be upon every parcell of the Land to him demised for the preservation and continuance of his possession therein And therefore his being in the house or upon any parcell of the Land to him demised is sufficient to preserve and continue his possession in the whole from being outed or dispossessed New Littleton fol. 4. 8. a. b. A man makes a Lease to A. the remainder to B. in fee and makes Livery to A. within the view this Livery is void for no man can take by force of a Livery within the view but he that taketh the Freehold himselfe If Lessee for life make a Deed of Feoffment and a Letter of Attorney to the Lessor to make Livery and he makes Livery accordingly notwithstanding he shall enter for the forfeiture But if the Lessee for years make a Feoffment in fee and a Letter of Attorney to the Lessor to make Livery and he makes Livery accordingly this Livery shal bind the Lessor and shal not be avoided by him for the Lessor cannot make Livery as Attorney to the Lessee because he had no Freehold whereof to make Livery but the Freehold was in the Lessor If the Lessor make a Deed of Feoffment and a Letter of Attorney to the Lessee for years to make Livery and he doth it accordingly this shall not drown or extinguish his term because he did it as a Minister to another and in anothers right and is accounted in Judgment of Law the act of the other and the Feoffee claimeth nothing by him Trin. 7 Eliz. in com Banco If Tenant for life or years the reversion or remainder being in the King make a Feoffment in fee Forfeiture Tenant for life the remainder to the King for life the remainder to another in fee if the first Tenant for
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
owne Child Attainders which give Escheat Attainder by Verdict Confession Outlawry Abjuration but upon either of them judgment must be given Forfeiture of Goods and Chattels Going beyond the Sea without license Exigent awarded in Felony though he yeild his body thereupon Clergy in Felony standing mute in Felony Felo de se Flying for Felony though he returne and be tryed and found not guilty These bring a forfeiture of all a mans Goods and Chattels as well reall as personall Attainder to what time it shal relate for the forfeiture of Lands and Goods Forfeiture He that is attainted of Felony by Verdict Confession or Outlawry doth forfeit all the Lands he had at the time of the offence committed so that he can do no Act afterward to encumber the Land If Tenant in taile be attainted of high Treason he shall forfeit for no longer time then for his owne life If a man have an Estate for life of himselfe or of another do commit Treason or Felony the whole Estate is forfeited to the King but no escheat to the Lord. But a Copyhold of Fees as for life is forfeited to the Lord and not to the Crowne and if it be entailed Forfeiture by a Copy-holder the Lord is to have it during the life of the Offender and then his Heire is to have it A man attainted may purchase Pardon Corruption of blood but it shall be to the Kings use untill the party be pardoned yet the pardon giveth not back their Lands or Goods without a speciall Patent of Restitution which cannot restore the blood without an Act of Parliament So if a man hath a Son and then is attainted of Felony and pardoned and then purchaseth Land and then hath issue another Son and dieth the Son he had before the pardon though he be his eldest Son and the Patent have words of restitution to his Lands yet he shall not inherit them but the second Son shall inherit them because the blood is corrupted by the Attainder and cannot be restored by Patent alone but by Act of Parliament And if a man hath two Sonnes Where a man shall be said to dye without Heire although he have one and the eldest is attainted in the life of his Father and dieth without issue living the Father the second Son shall inherite the Fathers Lands but if the eldest Son have any Issue though he dye in the life of his Father then neither the second Son nor the Issue of the eldest shall inherit the Fathers Land but the Father shall be there accounted to dye without Heire and the Land shall escheat whether the eldest Son hath issue or not though he be pardoned after the death of his Father Note that the Heires procreate after the Attainder shall not inherite the Lands of his Father nor of his Mother But the Heires begotten before the Attainder shall inherit the Lands of that Father and of that Mother which was not attainted but the Lands of his Father attainted or of his Mother which is attainted he shall not inherit although the King hath pardoned the Attainder The operation and effect of a pardon For a pardon doth but onely cleare the corruption of the bloud of these children which be borne after the pardon and so to make them capeable to inherit such lands which their Ancestor shall purchase at the time of the pardon or any time after but not to inherit such lands as the Ancestor was seised of before nor to purge the bloud of those children begotten before the pardon as to make them inheritable to any Ancestor Alien and Denizen A man seised of lands in Fee hath issue an Alien borne out of the Kings Leigeance he cannot be heire Propter defectum subjectionis though he be born within lawfull marriage if made Denizen by the Kings Letters patents yet cannot he inherit to his father or any other but otherwise it is if he be naturalized by act of Parliament for then he is not accounted in law Alienigena but Indigena but after one is made Denizen the issue that hee hath afterwards shall be heire to him but no issue that he had before If an Alien come into England and hath issue two sons these two sons Indigenae subjects borne because borne within the Realme and yet if one of them purchase land in Fee and dieth without issue his brother shall not be his heire for there was never any inheritable bloud between the Father and them and where the sons by no possibility can be heire to the Father the one of them shall not be heire to the other An Alien that is naturalized by Act of Parliament is to all intents and purposes as a naturall born subject differs much from denization by Letters patents for if he had issue in England before his denization that issue is not inheritable to his father but if his father be naturalized by Parliament such issue shall inherit so if an issue of an English man be born beyond Sea if the issue be naturalized by act of Parliament he shall inherit his fathers land but if he be made denizen by Letters Patents he shall not and many other differences there are between them An Alien borne out of the Kings leigeance his ancestors not being of the faith and leigeance of England is neither heire to inherit nor to purchase within this realme yet the Lord shall not have the escheate because he died without heire but the King which is the supreame head and the supreame person shall have this Land by the common Law But an Alien borne out of the Realme and within the Legiance of the King his Father and Mother being then and all their live of the legiance of the King shall inherit by the common Law Infants borne out of the Kings legiance the father and mother at the time of the birth being leigemen of England shall inherit by the Statute of 25 E. 3. so that the mothers of the children pass the Sea with the husbands leave and consent this statute extendeth all to children whose fathers and mothers were dwelling in England If an Alien marry here an english woman and hath issue this issue shall inherit to the wife the same law where the husband an English-man marry a woman that is an Alien and hath issue he shall inherit his father All which said trusts every one of them the said A. B. C. D. for himselfe severally and respectively Covenant severall no joynt covenant and for his severall and respective heire Executors and Administrators for as much as shall concerne him or them and his or their said heires Executors or Administrators c. doth covenant c. And the said A. B. C. D. do severally and respectively that is to say either of them for himselfe and by himselfe his severall heires Executor When Covenants are severall they are as severall Deeds written in one Parchment Coke 5. part fo 23.
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
Heires so that his Heire may not have it by discent and the King shall not have it because he that did the Treason had not the Fee at the time of the Treason or afterward Plowden 562. 556. If a man do lease or assure his land to another and all the Mynes and Pits thein for life or yeares the lessee may open and dig the ground for Coale Morter Stone c. and take and carry away the same although there were not any Myne open at the time of the lease for by this assurance it appeareth that the lessor was contented that waste should be made in any part of the ground leased by myning or digging And in this case the lessee may sell and dispose the same Coale Stone Marle Morter c. at his pleasure for it is as much as if the lease had been made without impeachment of any manner of waste to be committed by Myne Pits or digging Lessee for life the Remainder for life the Remainder in Fee the first doth waste that is not punishable by him which hath the Fee by reason of the meane Remainder otherwise it is if the meane estate be for years If Lessee for life be the Remainder for life and the Lessee for life doth Waste this Waste is dispunishable at this time for the advantage of him in Remainder for life And where a Lease for life is granted and then the Reversion is granted for life and the Tenant attorneth an Action of Waste lyeth not yet vide the Register 75. that Waste lyeth where there is a mean estate for life in Remainder And though the Waste be unpunishable in the first case yet it seemeth the Chancery may enjoyne him upon complaint against the first Lessee that he shall not do Waste for that he ought not to do Waste by the Law although no Action lyeth The Process in Waste is Summons Attachment and Distresse and if he appeare not at the Distresse then a Writ to the Sheriff to enquire of the Waste by the Oath of twelve men There are two kinds of Waste viz. Voluntary or permissive Waste in houses Waste may be done in houses by pulling them downe or by suffering them to be uncovered whereby the Spars or Rafters Planchers or other Timber of the house are rotten But if the house be uncovered when the Tenant cometh in it is no Waste in the Tenant to suffer the same to fall downe But though the house be ruinous at the Tenants income yet if he pull it downe it is Waste unlesse he reedifie it againe if Glasse-Windowes though glazed by the Tenant himselfe be broken downe or carried away it is Waste for the Glasse is part of the house And so it is of Wainscot Benches Doores Windowes Furnaces and the like annexed or fixed to the house either by him in Reversion or the Tenant Though there be no Timber growing upon the ground yet the Tenant at his perill must keep the house from wasting If the Tenant do Waste or suffer Waste to be done in houses yet if he repaire them before an Action brought there lyeth no Action of Waste against him but he cannot plead Quod non fecit vastum but the speciall matter Waste in Gardens and Orchards If the Tenant cut downe or destroy any Fruit-trees growing in the Garden or Orchard it is Waste but if they grow upon any of the ground which the Tenant holdeth out of the Garden or Orchard it is no Waste Lopping of Trees by a Copyholder is not a forfeiture but a Copyholder may not lop and burne them in another house of the Land or Mannor nor sell the Lops unlesse by the Custome he may do waste Kitchin forfeiture 125. Waste in building of a new house If the Tenant build a new house it is Waste and if he suffer it to be wasted it is a new Wast if the house fall downe by tempest or be burned by the lightning or prostrated by enemies or the like without a default of the Tenant or was ruinous at his coming in and fall downe the Tenant may build the same againe with such matterials as remain and with other Timber which he may take growing on the ground for his habitation but he must not make the house larger then it was if the house be uncovered by tempest the Tenant must in convenient time repaire it Waste in Dove-houses Parks Ponds c. Waste in Timber-trees If the Tenant of a Dove-house Warren Parke Ponds or the like do take so many as such sufficient store be not left as he found when he came in this is Waste Waste properly is in houses Gardens Timber-trees viz. Oke Ash and Elme and these be Timber-trees in all places either by cutting them downe topping them or doing any act whereby the timber may decay Also in Countries where timber is scant and Beeches or the like are converted to building for the habitation of man or the like they are also accounted timber that is if the Tenant cut downe timber-trees or such as are accounted timber as is aforesaid this is Waste And if he suffer the young Gerignes to be destroyed Wast in cutting Beeches c. this is destruction Cutting down of Beech Willowes Birch Aspe Maple or the like standing in the defence and safeguard of the house is destruction if there be a Quick-set fence of Whit-thorne if the Tenant stub it up or suffer it to be destroyed this is destruction and for all these and the like destructions an Action of Waste lyeth turning of Trees to Coales for Fewell when there is sufficient dead Wood is waste If the Tenant suffer the houses to be wasted Waste digging for Gravell Cole c. and then fell downe timber to repaire the same this is a double waste digging for Gravell Lyme Clay Brick Earth Stone or the like or for Mynes of Mettall Coale or the like hid in the Earth and were not open when the Tenant came in is waste but the Tenant may dig for Gravell or Clay for reparations of the house as well as he may take convenient Timber-trees If the Tenant convert arrable land into Wood Wastin converting arrable into wood or Meadow into arrable or wood into arrable or Meadow into arrable it is waste The Tenant may take sufficient wood to repaire the Walls Pales Fences Hedges and Ditches as he found them but he can take no new and he may also take sufficient Plow-bote Fire-bote and other House-bote The Tenant cutteth downe Trees for reparations and selleth them and after buyeth them againe and imployes them about necessary reparations yet it is waste for the Sale he cannot sell Trees and with the money cover the house burning of the house by negligence or mischances waste An Occupant shall be punished for waste and so if an estate be made to A. and his Heires during the life of B. A. dieth the Heire of A. shall be punished in an action of waste If a Lease be
covenanteth and granteth to be seised to his use in Fee although no consideration be expresly showne because the Indenture is an Estopell to say it was not a good consideration and it seemeth the Court may not examine the consideration and there is a diversity where the Grant is by Indenture and where by word only Nota. If a man hath power to make Leases for three lives he may not make a Lease for 99. yeares determinable upon three lives But if a man hath power by proviso to make any lease or Grant provided that such lease or Grant exceed not the number of three lives or 21. yeares there he may make a lease for ninety nine yeares if three lives so long live for that doth not exceed the number of three lives but that in truth is lesser for every tearme for yeares which is but a Chattle is lesser in estimation of the law then estate for life which is Frank-tenement If A. be Tenant for life the remainder in taile and A. hath power to make leases for twenty one yeares rendant the ancient rent he may not make a lease by Warrant of Attorney by force of his power because he hath but particular power which is personall unto him Lands may be conveyed 6. manner of wayes First by Feoffment executed from one man to another man and his heires by solemn livery and Seisin By Feoffement By Fine By recovereys Bargain and Sale By use By Covenant By Will if a lesser Estate be given then Fee-simple is it not calâ—ed a Feoffement unless the Fee-simple be conveighed A man in consideration of 100. l and of marriage covenanteth from thenceforth to bee seised of certaine land to the use of himselfe for life and afterwards to the use of his son in taile and the deed is not inrolled according to 27 H. 8. the use and profits is charged because the statute speaketh of bargain and sale only and the use is not because of Bargain and sale only but also for marriage Ploudens case Manxell fo 4. A Fine is a reall agreement made upon record in the Kings Court of Common Pleas at Westminster upon Fines What a Fine is and how lands may be converred therby Tenant for life the remainder to A. in taile the remainder to B. in tail c. with diverse remainders over and tenant for life suffers a common recovery wherein he voucheth A. and he the common vouchee that shall binde all the otheir remainders for no Covin or collusion may be supposed when the next in remainder in taile which hath the immediate inheritance is vouched Coke 10 pars fo 48. a rent may be reserved but no condition or Covenant this fine is a record of great credit and upon this Fine are made foure proclamations made openly in the common Pleas in every Terme and for foure termes together and if any man having right to the same make not his claime within 5. yeares after the proclamations ended hee looseth his right for ever an Infant a Feme covert a Madman or one beyond the Seas only excepted whose rights are saved so that he claime within 5 yeares after full age death of her husband recovery of the Wits or returne beyond the Seas it barreth the heires in taile presently whether the heire doth claime within 5. yeares or not if he claime by him that levied the fine A recovery barreth entailes and all remainders and reversions that should take place after the entailes saving where the King is giver of the entaile and keepeth the reversion to himselfe then neither the heire nor reversion is barred by the recovery And now by use recoveries are become common assurances against entailes remainders and reversions and the greatest security purchasers have for their money for a Fine will barr the heire in taile but not the remainders nor reversions Why recoveries doe barr remainders and reversions but a common recovery will bar them all and the reason why the heires remainders and reversions are thus barred is because in strict law the recompence adjudged against the cryor that was vouchee is to goe in succession of estate as the Land should have done and then it was not reason to allow the heire the liberty to keep the land it selfe and also to have recompence and therefore he loseth the Land and is to trust to the recompence Vpon Feoffements and recoveries the estate doth settle Vpon Fines Feoffements and recoveries the estate doth settle according to the intent of the parties as the use and intent of the parties is declared by word or writing before the act was done as for example if they make a writing that any of them shall levie a Fine make a Feoffement or suffer a common recovery to the other but the use and intent is that one shall have it for his life and after his decease a stranger to have it in taile and then a third in Fee-simple in this case the Law setteth an estate according to the use and intent declared And that by reason of the statute of 27 H. 8. of uses concerning the land in possession to him that hath interest in the use or intent of the fine Feoffement or recovery according to the use and intent of the parties The Statute of 27 H. 8. doth not passe land upon the payment of money without a Deed indented and inrolled Vpon this Statute is likewise grounded the fourth and the fifth of the sixt conveyances viz. Bargaines and Sales and Covenants to stand seised to uses for this statute wheresoever it findeth an use conjoyneth the possession to it and turneth it into like quality of state condition rent and the like as the use hath But the Parliament that made the statute did foresee that it would be mischievous that mens lands should suddenly upon the payment of a little money be taken from them peradventure in an Alehouse or a Tavern upon straineable advantages did therefore gravely provide another Act in the same Parliament that the Land upon payment of this money should not pass away unlesse there were a writing indented made between the said 2. parties and the said wrighting also within six months inrolled at some of the Courts of Westminster or in the Sessions Rolls in the Sheir where the land lieth The first conveyance by covenant is a conveyance to stand seised to uses it is in this sort A Covenant to stand seised to a use needeth no Inrolement as a Bargaine and Sale to an use doth so as it be to the use of Wife Child or Cousin or one he meaneth to marry a man that hath a wife and children brethen and kinsfolke may by writing under his hand and Seale agree that for him they or any of their heirs he wil stand seised of his lands to their uses either for life in taile or in Fee so as he shal see cause upon which agreement in writing there ariseth an equity or honesty that the land should
go according to those agreements nature and reason allowing those provisions which equity and honesty is the use and the use being created in this sort the statute of 27 H. 8. containeth the estates of the Land as the use is appointed and so this covenant to stand seised to uses is at this day a conveyance of land and with this difference from a bargaine and sale in that this needs no inrolement nor needeth not to be a writing indented as a bargain and sale must and if the party to whose use he agreeth to stand seised of the land be not wife or Child Cosin or one that hee meaneth to marry then will no use arise and so no conveyance Vpon a fine Feoffement or recovery a man may limit the use to whom he will without consideration of bloud or money otherwise in a bargaine and sale or Covenant for although the law alloweth such weighty considerations of marriage and bloud to raise uses yet doth it not admit so trifling considerations as of acquaintance Schooling service or the like but where a man maketh an estate of his land to others by Fine Feoffment or Recovery he may then appoint the use to whom he listeth without respect of marriage kindred money or other thing it is not so when he maketh an Estate but agreeth to stand seised nor when he hath taken any thing as in the cases of Bargaine and Sale and Covenant to stand seised to Uses The last of the six conveyances is a Will in writing which course of conveyance was first ordained by the statute of 32 H. 8. before which statute no man might give land by will except it were in a Burrowgh-Towne where there was a speciall custome that men might give their lands by Will as in Lond. and many other places In what manner the statute of 32. H. 8. giveth power to dispose of lands by Wil. By the Statute of 32 H 8. a man may give lands by will in this sort first it must be by Will in writing Secondly he must be seised of an estate in Fee-simple for tenant for another mans life or tenant in taile cannot give lands by Will by that statute If a man be seised of Capite Lands and Socage he cannot devise but two parts of the whole Thirdly he must be solely seised and not jointly with another and then being thus seised for all the Land he holdeth in socage being tenure he may give it by the Will except he holdeth any peece of Land in capite by Knights service of the King and laying all his lands together he can give but two parts by will for the third part of the whole aswell in socage as in capite must discend to the heire to answer Wardship Livery and Primmer seisin to the Crowne And so if he hold Lands by Knights service of a subject he can devise but two parts of his Lands and the Lord by Wardship and the heire by discent is to hold A conveyance by devise of Capite Lands to the wife for her Joyner or to his Children for their good or to pay debt is void for a third part by 32 H. 8. And if a man that hath three Acres of Land holden in capite by Knights service do make a Jointure to his wise of one and convey another to any of his children or to friends to take the profits to pay his debts or Legacies or daughters portions then the third Acre or any part therof he cannot give by Will but must suffer it to descend to the heir and that must satisfie Wardship Yet a man having three acres as before may convey all to his wife and children by conveyance in his life time as by Feoffment Fine Recovery Bargaine and Sale or Covenant to stand seised to Uses and to disinherit the Heire but if the Heire be within age when the Father dieth the King or other Lord shal have that Heire in VVard and shall have one of the three acres during the VVardship to sue Livery and primer Seisin But at full age the Heire shall have no part of it but it shall go according to the conveyance made by the Father It hath been debated how the Thirds shall be set forth for it is the use The King nor Lord can intermeddle if a full third part be left to descend to the heir Entailed lands part of the Thirds that all lands which the Father leaveth to descend to the Heire being Fee-simples or in taile must be part of the Thirds and if it be a full Third then the King nor Heire nor Land can intermeddle with the rest if it be not a full Third yet they must take it so much as it is and have a supply out of the rest This supply is thus to be taken if it be the Kings VVard then by a Commission out of the Court of VVards whereupon a Jury upon Oath may set downe so much as shall make up the Thirds except the Officers of the Court of VVards can otherwise agree with the parties if there be no VVardship due to the King then the other Lord is to have a supply by a Commission out of the Chancery and a Jury thereupon But in all the Cases these Statutes do give power to him that maketh the VVill The Statute giveth power to the Testator to set out the Thirds himselfe and if it be not a third part yet the King or Lord must take that in part and have a supply out of the rest to set forth and appoint of himselfe which lands shall go for the Thirds and neither King nor Lord can refuse it and if it be not enough yet they must take that in part and onely have a supply in manner as before is mentioned out of the rest A Feoffment made to the use of ones VVill if his VVill be declared before or at the time of his Feoffment it cannot be altered because it is executed otherwise it is if his Will be declared afterwards 20 H. 7. 11. vide fol. 27. b. What persons may make Leases at this day There be three kinds of persons at this day which may make Leases for three lives c. in such sort as hereafter is expressed which could not so do when Littleton wrote Any person seised of an Estate in Fee-simple in the right of his Church and any person seised of an Estate in Fee-taile in his owne right Any Husband and VVife seised of any Estate of Inheritance in Fee or in Fee-taile in the right of his wife or joyntly with his wife before the Coverture or after viz. The Tenant in taile by Deed to bind his Issues in taile but not the Reversion or Remainder The Bishop by Deed without the Deane and Chapiter to bind his Successors the husband and wife by Deed to bind the wife and her and their Heires and these are made good by the Statute of 32 H. 8. which enableth them thereunto but to the making
according to the exception of the Statute but not a Lease for life or lives as hath been said But this concurrent Lease hath been resolved to be good as well upon the exception of 1 Eliz. in the case of Bishops as upon 13 Eliz. which extend to Spirituall and Ecclesiasticall Corporations aggregate of many as Deanes and Chapiters c. which 32 H. 8. for the Leases for years to be made according to the exceptions of the Statute of 1. and 13 Eliz. must begin from the making and not from the day of the making but by force of 32 H. 8. from the day of the making And though the Statutes of 1. and 13 Eliz. do not appoint the Lease to be made by writing yet must it therein and in the other 8. properties or qualities before mentioned and required by 32 H. 8. follow the patterne thereof the concurrent Lease onely excepted And though the exception in 1. and 13 Eliz. concerning the accustomed rent is more generall then that of 32 H. 8. and there is not any provision made for Leases made dispunishable of waste c. yet must the patterne of 32 H. 8. be followed for Leases made without impeachment of waste by such Spirituall and Ecclesiasticall persons are unreasonable and are causes of disputations And albeit it be proved by the said Acts that all Grants c. Leases c. other then Leases for three lives or one and twenty yeares according to these Acts should be utterly void and of none effect to all intents Yet Grants or Leases c. nor warranted by these Acts are not void but good against the Lessor if it be a sole Corporation or so long as the Deane or other head of the Corporation remaine if it be a Corporation aggregate of many for the Statute was made in benefit of the Successor 3. pars Coke fol. 50. 60. pars 39. Eliz. inter Hunt Singleton How to make a perfect Joynture within the Statute of 27 H. 8. wherein six things are to be well observed Joynture to bar Dower FIrst her Joynture by the first Limitation is to take effect for her life in possessions or profit presently after the death of her Husband Secondly that it be made for the terme of her owne life Thirdly it must be made to her selfe and none other for her Fourthly it must be made in satisfaction of her whole Dower and not in part of her Dower Fifthly it must either be expressed or averred to be in satisfaction of her Dower Sixthly it may be made either before or after marriage Concerning the first if a man make a Feoffment in fee of Lands or Tenements either before or after marriage to the use of the husband for life and after to the use of A. for life and then to the use of the wife for life in satisfaction of her Dower this is no Joynture within the Statute because by the first limitation it was not to take effect in possessions or profit presently after the death of her husband and although in that case A. should dye living the husband and after the death of the husband the wife entreth yet this is no Bar of Dower but she shal have her Dower also because it is not within the said Statute and by the Common Law it was no Bar of Dower Secondly it must be either in Fee-taile or for terme of her owne life for an Estate for life or lives of one or many others or to her for a hundred yeares if she live so long or without such limitation is no Bar of Dower albeit it be made expresly in satisfaction of her Dower Thirdly if an Estate be made to others in Fee-simple or for life upon trust so as the Estate remaine in them albeit it be for her benefit and by her assent and by expresse words to be in full satisfaction of her Dower yet is this no Bar of her Dower The fourth is so plaine as it needeth not any example Fifthly a Devise by will cannot be averred to be in satisfaction of her Dower unlesse it be so expressed in the Will Sixthly if the Joynture be made before marriage the wife cannot waive it and claime her Dower at the Common Law but if it be made after marriage then she may waive the same and claime her Dower Vernons case 4. pars Co. fol 4. If a Joynture be made to the wife of Lands before the Coverture and after the Baron and Feme alien by Fine those lands so conveyed for her Joynture she shall not be endowed of any other of her husbands lands But if the Joynture had been made after marriage notwithstanding the alienation by the husband and wife thereof by Fine yet seeing her Estate was originally waivable and the time of her election came not till after the death of her husband she may claim her Dower in the residue of his lands Note that by force of the Statute of 1 Ed. 6. cap. 2. 5 Ed 6. cap. 11. a wife shall not lease any Title of Dower which to her was accrued by the Attainder of her husband for any manner of Murther or other Felony whatsoever But if the husband be attainted of high Treason or petite Treason she shall be barred of her Dower at this day Feoffment to the use of a mans last Will and Testament When a Feoffment is made to a future use as to the performance of his last Will the Feoffees shall be seised to the use of the Feoffor and his Heires in the mean time 35 H. 6. 22. 15 H. 7. 12. H. 36. 11. H. 4. 521. 7 H. 4. 2. 2. 1 Mariae III. Dyer vide fol. 25. a. Surrenders Surrender in Law A Surrender in Law is in some cases of greater force then a Surrender in Deed as if a man make a Lease for yeares to begin at Michaelmas next this future interest cannot be surrendred because there is no reversion wherein it may be drown But by a Surrender in Law it may be drowned As if the Lessee before Michaelmas take a new Lease for yeares either to begin presently or at a day to come this is a Surrender in Law of the former Lease Lessee for yeares grants a Rent-charge and surrenders yet the Rent shall be paid during the yeares So if he in Reversion grant a Rent-charge during the terme and then the Lessee doth surrender unto him he shall pay the Rent during the terme for a stranger that is a Grantee of the Rent shall say for his benefit that the terme continueth and that it is not determined If a man make a Lease for forty yeares Surrender by acceptance of a new Lease By Surrender one of Court the Copy-hold estate passeth to the Lord under a secret condition that it be presented at the next court according to the custome of the Mannor And therefore if after such a Surrender and before the next court he that made the Surrender dieth yet the Surrender standeth good
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
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
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
it is if a man make a Feoffment in Fee upon condition that the Feoffee shall not take the profits of the Lands this condition is repugnant and against law and the estate is absolute But a Bond with condition that the Feoffee shall not take the profits is good If a man bee bound with a condition to enfeoffe his wife the condition is repugnant void and against law because it is against a Maxime in Law and yet the Bond is good Deeds suspitions to be forged Yet before anno 13 H. 8. the Deed do stile the King Defender of the Faith or Supream head before the 20. H. 8. such a Deed is a forged Deed. King H. 8. used not the stile of Supreame head in his Charters till 22. of his Raigne nor King of Ireland before 33. of his Raigne New Littleton fo 7. Age to bind man or woman 21. yeares is the full age for man or woman to make good any act they doe 14. their age of discretion and therefore that is the competent age to bind a man in matter of marriage 12. to bind a woman and 9. to deserve her Dower Remainder No remainder may commence upon any repugnancy or impossibility precedent nor upon any condition that goeth to the destruction of the particular estate for conditions alway enure 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 Lessor or their heires and as none shall avoid an estate formerly made by the Breach of a condition but onely the privies so none shall take a new estate by performance of a condition but onely the privies Generall Livery and speciall Livery the difference A generall Livery hath two properties first it is full of charge to the heire for he must find an Office in every County where he hath Land or else he cannot sue a generall Livery and he must sue out his Writ of aetate probanda The second property is it is full of danger first it concludeth the heir for ever after to deny any tenure found in the Office Secondly if Livery be not sued of all and of every parcell which the King ought to have whether it be found in the Office or not found the Livery is void and the King may reseise the Land and be answered of the meane profits so it is if the Office be insufficient or the process wherof the Livery was made be insufficient or the like the King shall re-seise Therefore for the ease of the heire and for avoiding such danger the heire for the most part sueth out a speciall Livery which containeth a beneficiall pardon and saveth the said charges and preventeth the said conclusion and other dangers which being of grace and not of right as the generall Livery is the King may justly take more for a speciall Livery then for a generall but ever with such moderation as the heire may ever goe cheerefully through with it 23 Eliz. 77.28 H. 8. One Mr. Shotbolt was bound in an obligation to one Hickman and in the Obligation he was named John Shotbolt which was mistaken but Mr. Shotbolt well perceiving his misnaming sealed and delivered the Obligation as his Deed and in Debt brought upon this Obligation against him by the name of William Shotbolt alias dictus Johannes Shotbolt he pleaded non est factum and this speciall matter was found by verdict at Guild-hall London and whether he should be charged by this Obligation and plea that was the doubt and the Postea was speciall ut supra and by the opinion of the Justices of the Bench the plantiff shall not recover upon this Verdict but it had been better for him to have brought the Action by the name of John Shotbolt as he is named in the Obligation and then if he appeared therunto and pleaded ut supra non est sactum he should have been concluded by the Obligation vâ—… 3 H. 6. 34 H. 6. 5 E. 4. this matter well debated similis casus inter Turpin Jaxon viz Ann for Agraes and she sued by her right name nuper dicta Anna. Hillar 18. Rotulo 738. Dier fo 279. An obligation made beyond the Seas may be sued here in England in what place the party will what if it beare date Bourdeaux in France where shall it be sued and answer was made that it may be alleadged in quodam loco vocat Bourdiaux in France in â—slington in the County of Midd. and there it shall be tryed for whether there be such a place in Islington in the County of Midd. or not is not traversable in that case and so the varieties of opinions in our Bookes well reconciled New Littleton 361. b. 6. pars fo 47. Dondales case 32 H. 6. 25. 48. E. 3. 3. 11 H. 6. 16. Mise Mise is a word of Act appropriated onely to a Writ of right so called because both parties have put themselves upon the meere right to be tried by grand Assize or by Battel so as that which in all other actions are called an issue in a Writ of right in that Case is called a Mise A yeare how into how many parts it is divided A quarter of a yeare is 91 daies halfe a yeare is 182 daies a yeare is 365 daies and to the 6. houres the Law hath no regard Diers Abridgement fo 89. this is according to the computation in the Kalender And when a Patron is to present hee hath six months to present according to the computation of the Kalender which is 182. daies before any Lapse shall accrue But a Month according to the computation of the Law for reservation of rents and re-entries for non payment of Rent c. doth account 28. daies to the Month and no more Kings-Silver Note that the fine pro licencia concordandi is that which is called the Kings-Silver or post fine And if the Fine in the Hamper which is commonly endorsed upon the writ of Covenant be 26. shillings 8. pence then alwayes the Kings-Silver or post-fine is halfe as much more as the Fine in the Hamper Suspension If a Lease be made of 10. Acres of Land for yeares reserving rent and after the Lessor enters in 2. Acres the entire rent is thereby suspended for a contract which is entire may not be apportioned but being suspended in part it is suspended in all being destroyed in part is destroyed in the whole and especially as to the Act of the Lessor which doth suspend or extinguish it Suspension A man gives Land in taile or leaseth it for life or yeares rendant rent with condition for default of payment to re-enter there if the Lessee lease part of the Land to the Donor or Lessor or if the Donor or Lessor enter in part of the land he may not re-enter for rent behind after for the condition is suspended in all and a condition
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
elder son was in possession of the dignity no more then of his blood for the dignity is inherent to his blood and neither by his own act nor by the act of another hath he gained more actuall possession then by the Law descended to him Coke 3. pars fol. 42. Actuall possession quid Possession in Law quid Here 's jure proprietatis heres jure representationis An actuall possession is when a man entreth in Deed into lands to him discended A possession in Law is when lands be discended to a man and he hath not yet really entred into them nor hath seisin of the rents reserved upon any estate made for life by him from whom he claimeth Every one that is heire unto another is as the eldest Son shall inherit onely before all his brothers Aut heres jure representationis as where the eldest Son dieth in the life of his Father his issue shall inherit before the youngest Son for although the youngest Son be magis propinquus yet jure representationis the issue of the eldest Son shall inherit for he doth represent the person of his Father And even as none may be procreate but of one Father and one Mother and ought to have in him two bloods viz. the blood of his Father and the blood of his Mother those two bloods commix in him by lawfull marriage doth constitute and make him heire So none may be heire to any one unless he hath in him both the bloods of him to whom he shall make himself heire And therefore the heire of the half blood shall not inherit because he wanteth one of the bloods that should make him inheritable for as in this case the blood of the Father and the blood of the Mother make but one blood inheritable and both are necessary to the procreation of an heire therefore desiciente uno non potest esse haeres And this is the reason of the Maxime of Possessio fratris de feodi simplex facis sororem esse haeredem Co. 3. pars Ratcliffs case fo 37. If a man be attainted of felony by judgment the heires begotten after the attainder are foreclosed from all manner of hereditary Succession as well on the part of the Mother as on the part of the Father And Britton gave this reason because the Son procreate after the judgment had not two bloods inheritable in him for at the time of his birth the blood of his Father was corrupt for ex leproso parente leprosus generatur filius And when the Father is attainted of felony the blood in respect of what it shall be inheritable being corrupt the Son as like to it hath not but half blood viz. the blood of the Mother in him without corruption And therefore he holdeth that such a Son shall not inherit his Mother And with him Bracton accordeth for saith he Non valebit felonis generatio nec ad hereditatem paternam vel maternam si autem ante feloniam generationem fecerit talis generatio succedit in hereditatem patris a quo non fuit felonia perpetrata Because that at the time of his birth he had two lawfull bloods commixt in him which may not be corrupt by attainder subsequent but onely as to that Father or that Mother by whom the Felony was done and committed Assise To arraigne an Assise is to cause the Demandant to be called to make the plaint and to set the cause in such order as the Tenant may be inforced to answer thereunto and is derived of the French word Arrayner to order or set in right place and the Assise is Arrained in French and entred in Latine Executed and things executory a difference There is a diversity between Inheritances executed and Inheritances executory As Lands executed by Livery c. cannot by Indentures of Defeasance be defeated afterwards And so if a Disseisee release to a Disseisor it cannot be defeated by Indenturs of Defeasance made afterward but at the time of the Release or Feoffment c. the same may be defeated by Indentures of Defeasance for it is a Maxime in Law Quae in continenti fiunt in esse videntur But Rents Annuities Conditions Warranties and such like that be inheritances executory may be defeated by Defeasance made either at that time or at any time after And so the Law is of Statutes Recognizances Obligations and other things executory Distress for a mercement He that distraineth for an Amercement and such like must be sure to distraine the Goods and Chattels of him that is amerced because he may not distraine another mans beasts for this amercement But for rent or services it is otherwise for the party may distraine the beasts found in the land that are levant and couchant there N. B. fol. 100. B. Distress Damage-feasant And if a man take beasts for Damage-feasant and the other offer sufficient amends he refuse c. Now if he sue a Replevin c. for the beasts he shall recover Damages onely for the Detinue of them and not for the taking for that was lawfull F.N.B. 69. The Lord may seise a Herriot service aswell as a Herriot custome Herriot service Herriot custome may be seised Warde and so it was then adjudged by the whole Court Plow fo 96. Replevin Woodland versus Mantle It was resolved that when the King maketh an heir apparent which in age of a Tenent by Knights service a Kt in the life of his ancestor after the ancestor dieth the said heir within age in this case he shall be out of ward and shall pay no value of his marriage nor the Lord shall have the custody of the Land for in such ease by the making of him Knight in the life of his Ancestor he is made as of full age so that when his Ancestor dieth no interest either in the body or in the land ever vesteth in the Lord. It was also resolved that when the heir within age is made Knight after tender made to him although that he within age marry else where yet he shall not pay the forfeiture of marriage Cok. 6. pars fo 73. Sir Drue Druries case If an infant in the life of his father be made Knight and his Father die he shall be in Ward but otherwise it is where an infant in Ward is made Knight there he shall be out of Ward 2. E 6. tit Garde 42. Magna Char. Cap. 3. Touching the time of the beginnning of a Lease for yeares it is to be observed Commencement of a lease Inclusive exclusive that if a Lease be made by indenture bearing Date the 26. of May c. to have and to hold for 21. yeares from the Date or from the day of the Date it shall begin the 27. day of May. If a Lease beare Date the 26. of May. c. to have and to hold from the making hereof or from henceforth or from the sealing and delivery hereof
there he hath but an estate for life for there want words precedent to direct the words in the disjunctive these words Heires are of the essence of the estate and without them no estate of inheritance shall pass And so by the same reason if a reversion upon a Feoffement in Fee be made to one or his heires such reservation is good no longer but during the life of the Feoffor A. covenants to make a lease to B. and his assignes for 21. yeares the sence of these words shall be taken that he shall make the Lease to B. or his Assignes for 21. yeares Plow Com. fo 289. The defendant bound himselfe by Indenture to pay to the Plantiff a certaine sum if so be that the Defendant did not enfeoffee the plantiffe nor his heires of certain Land when he came to his aunt and the Plantiffe declared that the Defendant came to his aunt and the Plantiffe required him to enfeoffee him and he did not enfeoffee him per quod actio accrevit and exception was taken to this declaration because the condition was in a disjunctive that is to say that the Plantiff should have the sum if the Defendant did not enfeoffee him nor his heires and he hath said that he did not enfeoffe him not speaking of the Feoffment to his heires and if he had performed any of the parts ' of the disjunctive the Plantiffe might not have the debt but the Count was holden very good notwithstanding that exception for the plantiff might not have an heir during his life so that although the condition in words be disjunctive yet forasmuch as the Plantiffe was alive in sence it was not disjunctive for he might not have an heir being alive and the sence of the words are to be taken to enfeoffee the Plantiffe if he be alive if he were dead then to enfeoffee his heires and as the Plantiffe may not have an heire during his life so heere in the case above B. may not have an executor during his life and as the condition there in the disjunctive to enfeoffee at a time to come him or his heirs was taken to enfeoffe him at the time limitted if hee were alive and if he were dead at the time then to his heirs so here the Covenant to make a lease at a time to come to him and his assignes copulatively shall be taken disjunctively in sence that is to say to him if he be alive and to his assignes if he be dead Plow com fo 289. Of uses in esse in futuro A. makes a Feoffment in Fee to the use of D. for life and after to the use of him which shall be his first son in taile and for default of such issue to the use of B. in taile and for default of such issue to the use of C. in fee. In this case forthwith by the Feoffment D. hath estate for life the remainder to B. in taile the remainder to C. in Fee and no estate is put in abeyance or left in the Feoffees but if after A. hath issue a son then the possibility which the Feoffee had becomes to an estate in Law and forthwith the statute of 27. H 8. cap. 10. executeth the possession according to the limitation of the use But if Tenant for life be disseised before the birth of the son and after he hath issue a son now nothing vesteth in the son because there ought to be a use in esse before that the Statute can execute the possession But who shall enter to remoove the impediment and to restore the privity of the estates Surely if the tenant for life shall re-enter hee shall revive all the former estates which the statute of 27 H. 8. hath executed to the former uses in taile and for that also the statute transferreth the estate of the Land to the son in taile for that is the privity which the Statute requireth scil privity of estates which the same statute hath executed upon the lymitation of the uses in the same conveyance before and after the death of tenant for life the Feoffees may enter and revive the use and as lessee for yeares or for life upon condition to have fee may not have increase and inlargement of his estate but upon the privity of the estate of the Lessee so no remainder of a future use may be transferred in estate by force of the Act before the particular estates executed by the statue upon lymitation of uses in the same conveyances be recontinued but if Tenant for life make a Feoffment in fee or dy before the birth of the son his remainder is destroyed as if a Lease be made for life the remainder to the right heires of I. S if lessee for life make a Feoffement or die during the life of I. S. the remainder to the right heires is destroyed and that is the best construction of the statute of 27 H. 8. The chief Baron said that Scintilla juris which is mentioned in 17 Eliz. is like to Sir Tho. Mores Eutopia and they said that after this Statute no trust or confidence was reposed in the Feoffees for now as Walinslow said the Feoffees non possunt agere aut permittere aliquid in prejudice of ceste quâ—… use before the Statute the office of the Feoffe was to execute the estate according to the use but now the statute hath taken all Walinslow said even as a fountain giveth to every one that commeth in their time unto it their just measure of water so likewise the first estate and seisin in fee given by the first Feoffment to the feoffees is sufficient to all persons to whom any use present or future is limitted a competent measure of estate in their time proportionable to their estate which they shall have in the use so that the first seisin by force of the Feoffment whereby the fee-simple is given to the Feoffees shall bee sufficient to serve all their particular uses as well future as present in their severall times and nothing shall remaine in the Feoffees but Walinslow said that all the estate shall be first vested in those which are in rerum natura and the possession shall bee vested in him which hath the future use when that commeth in esse by force of the first livery and shall divide the estates which were conjoyned before If a feoffment in fee be made to the use of one for life and after to the use of the right heires of I. S. the fee simple of the land shall be in abeyance and before the Statute if a man had made a feoffment to the use of one for yeares and after to the use of the right heires of I. S. the Fee-simple of the land shall be in abeyance And before the Statute if a man had made a Feoffement to the use of one for yeares and after to the use of the right heires of I. S. this limitation had been good for the Feoffees shall remaine
tenants of the Frank-tenement but such limitation after the Statute is void for then the Frank-tenement shall be in suspence for nothing may remaine in the Feoffees But hee said that those remainders in futuro were divested and destroyed by the Feoffment of Tenant for life and although the remainders are in custody of the Law yet they ought to be subject to the rules of the law for the law will never preserve any thing against the rule of the Law and because that the rule of the law is that he in remainder ought to take the Land when the particular estate determineth or otherwise the remainder shall be void and in this case forsomuch as by the feoffment of tenant for life their estate was determined and title of entry given for the forfeiture then those in the future remainder were not in esse to take it for this cause these remainders in futuro by this matter ex post facto were all utterly destroyed made void And no diversity when the estate of tenant for life determineth by the death of tenant of life and when it determineth in right by his forfeiture for in both cases entry is given to him in the next remainder and then if he may not take the Land when the particular estate determineth the remainders void A gift in taile was made to A. C. the remainder to the right heirs of A. S. the Donee made a Feoffment to B. in fee and after A. S. dieth his right heire shall never have the remainder nor any Charter that concerneth it for the estate of the Land was by the feoffment of S. in taile divested and discontinued and all estates vested in the Feoffee and there was not any particular estate either in esse nor in right to support the remainder when that shall fall for by the Feoffment of S. in taile his right heire was utterly gone But if tenant in taile were deceased and dieth that shall not toll the remainder for there is a right of particular estate to support the right of the remainder but when tenant in taile made a feoffment no right remained in him and so note that there ought to be a person in esse of both parties viz. that shall be seised to use and that shall take the use so that there needeth not onely to have a use limited but a person capable of the use when this Statute transferreth the possession thereunto and therefore if a person wanteth it is impossible to have the possession executed by this Statute to one which is not in rerum natura for the Statute saith c. If by a Feoffment to uses the estate shall be utterly out of the Feoffees and all vest in them which have the present uses then the future use shall never rise for it is impossible that it should be raised out of the possession of ceste que use for a use may not be raised out of a use for if A. enfeoffe B. in fee to the use of C and his heires with proviso that if D. pay to C. 100 l. that C. and his heires shall stand seised to the use of D. and his heires that is utterly void for the future use ought to be raised out of the estate of the Feoffee and not out of the estate of ceste que use And it was holden that the Feoffees after the Statute had possibility to serve the future use when it cometh in esse and that in the mean time all the uses in esse shall be vested and when the future use commeth in esse then the Feoffees if the possession be not disturbed by disseisin or other meanes shall have sufficient estate and seisin to serve the future use when that shall come in esse to be executed by force of the Statute and that seisin and execution ought to concurr and meet together at one selfe same time and in such case when the future use commeth in esse the Feoffees shall have by force of the act a qualified estate sufficient to serve the future use All the Justices and Barons of the Chequer but Periam Walmsley Gawdy concluded c. that forasmuch as the Statute of 27. H. 8. doth not extend but to uses in esse and to persons in esse and not to any uses that depend in possibility onely for this cause these contingent uses in the case at barr remaine so long as they depend in possibility onely at the common Law and by consequence they may be destroyed or discontinued before they come in esse and by all such meanes as Uses might have beene discontinued or destroyed by the common law And all the Justices and Barons of the Chequer agreed with the chiefe Baron and VValmsley in this point that these remainders limited in use in the case at the barr shall follow the rule and reason of estates executed in possession by the common law and therefore they al only agreed that if the estate for life in the case at the barr had been determined by the death of the Feoffees before the birth of the eldest son that the said remainders in futuro were void and never shall take effect although that the son were borne afterwards for a remainder in use ought to vest either during the particular estate or eo instante when the particular estate endeth as well as estates in possession All these cases last before touching contingent uses see Coke prima pars fo 120. Chudleis case unto the end of the said case If a future use come not in esse during the particular estate then it shall never take effect because it is in nature of a remainder which ought to take effect and vest during the particular estate and no use shall be executed by 27 H. 8. which are limited against the rule of the common law A use is in nature of a remainder and therefore in the raising of uses the order and rule of the common law touching remainders in all things must be observed but upon and by the limitation of a devise or limitation of a use a remainder may commence upon a condition which goeth to the destruction of the particular estate and one fee-simple may depend upon another If a man at this day make a feoffement in Fee to the use of A. for yeares and after to the use of the wife of B. which shall be this limitation to the right heirs to the wife is void because if it had been void it had been limited in possession So in the same case if the use be limited to A. for life and after to the use of the right heires of B. or to the wife of B. which shall be if A. dieth and then B. dieth or taketh a wife this remainder limited to the right heires or to the wife of B. is void for it were void if it had been limited in possession And 72 H. 8. intended to restore the good and the ancient common law and not to give more priviledge
to the Major to make Certificate notwithstanding the first Certificate and to have out of the Chancery a new Capias or no or whether at the suite of the Executors the Justices of the Bench might have awarded an alias Capias or a Writ of extent upon the first proceeding or not But it was agreed by the Court that no Scire facias did lie in this case but upon oath made by the Executors in the Chancery that the debt is not satisfied they shall have a new Certiorari to the Major c. to make a new Certificate of the Statute and so to begin all anew again Dier 180. Satute Staple THe Statute Staple is of two sorts or in two manners the one by force of the Statute 27 E. 3. cap. 9. the other by force of the Statute 23 H. 8. cap. 6. The first is an obligation of Record acknowledged before the Major of the Staple in presence of one of the Constables of the same Staple and is sealed with the seale of the Staple and Seale of the party but such Statute Staple shall not be taken but onely amongst Merchants of the same Staple and for Marchandizes of the same Staple 23 H. 8. ca. 6. The other is an obligation also of Record and of the same nature and force as the first is as to the execution thereof But it is acknowledged before the one of the chief Justices and in their absence out of Terme before the Major of the Staple at Westminster and the Recorder of London and is sealed with their Seales viz. with the Seale of the Connusor of the King and of one of the said Justices or of the Major and Recorder 23 H. 8. cap. 6. The formes of these Statutes Staple vide West 108. 109. Note that all Statutes Merchant and Staple shall be brought to the Clarke of the Recognizances within 4 Months and inrolled within six months or else such Statute shall be void against Purchasors c. 27. Eliz. cap. 4. A Statute Staple must be certified into the Chancery in the like manner as a Statute Merchant and upon that Certificate a Writ of execution shall go presently forth both against the body si laicus sit and against the lands and goods of the Connusor returneable in the Chancery in the petty-bagg Office there and not into the Court of common Pleas or Kings Bench as the Writs of Execution upon a Statute Merchant shall and upon the Writ of execution the Sheriff shall take the body of the Connusor and shall also per sacramentum proborum legalium hominum juxta verum valorem Fitz. 131 d. presently extend and price and shall seise into the Kings hands his Lands his Goods and Chattels and that extent and prizement or valuation of the Lands and goods shall returne and certifie into the Chancery as aforeraid and therupon the Reconusee shall have another Writ called a liberate to the Sheriff out of the Chancery to deliver to the Conusee those lands and goods to the value of his debt and upon that liberate delivered to the Sheriff then such lands and goods as are taken in execution shall be delivered to the Connusee by the Sheriff and not before And this execution shall be made in manner as is before declared upon a Statute Merchant 27 E 3. cap. 9. Plow 62. b. And so note that upon a statute Merchant the connusor shall bee imprisoned for halfe a yeare and if hee doth not sell his lands within the same time for to pay his debts then his lands shall be delivered to the obligee until his debt be satisfied And upon statute staple the Debitor or connusor after that hee is taken shall not have liberty to sell his lands and goods within the halfe yeare as he shall have upon Statute Merchant But by force of this statute Staple if the money be not paid at the day forthwith after certificate therof in the chancery the creditor may have Execution of the body Lands and goods of the Debitor ss the connusor shall be imprisoned and all his lands and goods shall be extended instantly 27 E. 3 cap. 9 Also note that upon Statute staple the extent shall be first made and returned and aftet a Writ of liberate shall be awarded but delivery shall not be made at the beginning untill the thing appeareth certainly by the return of the Sheriff Plow 62. b. All obligations and specialties made to the King or to his use for any cause shall bee of the same force as Statute Staple is 33 H. 8. cap 59. and so for obligations made by parsons for their first fruits 26 H. 8. cap. 39. The lands of many Accomptants to the King shal be liable and put in execution as if they had been bound in Statute Staple 13. Eliz. Cap. 4. The heir that claimeth by the gift of his Ancestor shall be bound to pay the Kings debt 33 H. 8. cap. 39. The heir in taile by the same Statute shall be liable to pay the Kings debt due by his Ancestor Plow 240. b. 249 b. 554. b. Fitz. 217. c. But if tenant in taile become in debt to the King by receipt of the Kings moneyes or otherwise unlesse that it be by judgement recognisance obligation or other specialty and dieth the land in the seisin of the issue in taile by force of the said act of 33 H. 8. shall not be extended for such debt of the King For the Statute of 33 H. 8. extendeth only to the said 4. cases and all other debts of the King remain at the common law Execution upon Statute IF Tenant in Taile become in debt to the King by one of the said 4. wayes scil by judgment recognisance obligation or other specialty and dieth and before any prosces or extent the issue in taile bona fide alien or Lease the Land intailed now this Land shall not be extended by force of the said Act of 33 H. 8. C. 7. 22. So where debt was originally due to a subject and after comes or accrues to the King by reason of attainder Out-lawry Forfeiture gift of the partie or by any other way or meane such debt is not within the said Statute of 33 H. 8. to charge lands intailed in the possession of the heir in taile Co. 7. 22. But lands in fee-simple were extendable at the common law for debt of the King into whose hands soever they should come and therefore as to them the said Statute of 33 H. 8. was not but a declaration of the ancient law Co. 7. 21. Two Joyntenants in fee the one of them being a debtor of the King dieth the other shall hold discharged Fitz. Execut. 113. The heire shall bee chargeable to pay debt of the King although he bee not named or that this word Heir be not comprised within the recognizance obligation or specialty 33 H. 8. cap 39. The King shall be preferred in his suit and execution before common persons by the Statute 9 H. 3.
cap. 18. and 33. H. 8. cap. 39. Debitor of the King possessed of a Lease selleth it bona fide This bindeth the King for it is but a Chattel Co. 8. 172. Note that the King shall levie the summe for which any is chargeable unto him not only against the party himselfe scil of his body his lands and goods in his own hands but in the hands of his Heires Assignes Executors or Administrators and if he hath no Executors or Administrators then in the hands of the possessors of the goods of the dead What Lands and goods shall be extended or taken by the Sheriff in Execution upon Statute c. in case of a common person NOte that upon Statute Merchant or Staple all the Fee-simple Lands which the said Connusor had at the time of the said Statute acknowledged or at any time after shall be liable to the said Statute into whose hands they shal ever come afterwards by alienation Feoffement or otherwise Stat. de mercator 13 E. 1. 27 E. 3. cap. 9. 23 H. 8. Co. 3. 12. But if the Debitor die the body of his heire shall not be taken but his Fee simple lands which descendeth to him from the Connusor shall be taken in form aforesaid if he be of full age or when he commeth to full age untill the debt be levied Statut. de mercator And so was the common Law before that in debt against the heir the Plaintiff shall have all the Land which discendeth to the heir in execution and yet he shall not have then execution of any part of the land against the father himselfe Note that it hath been holden that the heir shall not be charged where the Executors have assets Fitz. Executors 25. Br. Debt 237. 17 E. 4. 13. Plow 439. 440. But at this day the law seemeth otherwise scil that it is at the election of the Creditor to sue the heir or Executors when both have assets 4 E. 4. 25. 22 H. 6. 4. 10 H. 7. 8. Doct. Stud. 153. Dier 204. Plowden 439. 440. Also it seemeth that if the heire doth not confesse the action and shew the certainty of the assets which he hath by discent but plead nothing by discent or is condemned by default that there the Plaintiff shall have execution of his other lands or of his goods or of his body by cap. ad satisfac Plow 440. Note that Fee-simple lands of the heire which he hath by discent the day of the Writ purchased or after shall be liable but otherwise if he hath aliened before the Writ purchased unlesse it be by covin Co. 5. 60. Possession in law discendeth upon the heir shall charge him So where he enters upon a condition Br. assetts 8. Reversion upon an estate for life discends upon the heire that shall charge him Br. Assets 12. 19. A reversion shall be put in execution and the judgment shall be cum acciderit and in the meane time of the rent Di. 373. Fitz. Assetts 237. Note in debt a man shall have execution of no land but of that which the Defendant hath the day of the judgement given 2. H. 4. Fitz. Executors 24. If a man sue a Statute Merchant of parcell of the Lands in name of all the Lands he shall not have other execution afterwards Fitz. Execution 13. 4. If I have but one Acre by discent I shall be charged with 1000 l. by obligation made by my father by Belk 40 E. 15. Fitz. Execution 32 vide quaere For it seemeth that the heire may confesse what he hath by dscent and demand judgement whether of more then of the value therof he ought to be charged Lands intailed are liable but during the life of the Connusor as if tenant in taile be bound in a Satute or Recognizance the land taile shall be bound during his life but it is not bound against the issue in taile Br. Recog 7. yet if the issue in taile enfeoffe a stranger now execution shall be against the Feoffee 19 E. 3. Fitz receipt 112. But if Tenant in taile acknowledge a Statute or Recognizance and after alien the lands in the hands of the Feoffee or alienee shall be subvert to this Statute or Recognizance Co. 1. 62. and 2. 52. 8 H. 7. 89. Copy hold Lands are not liable nor shall bee extended upon a Statute or Recognizance Lease or Terme for life shall be extended Lease for tearme of yeares and all other goods and Chattels of the Connusor or Debitor are liable and shall be extended ss such which the Connusor c. hath in his owne possession and to his own use at the time of the execution sued or awarded But sale of Chattels bona-fide after judgement and before execution awarded is good but not after execution awarded as appeareth in 2 H. 4. fo 14. per curiam Yet by Babington 7 H. 6. Br. execution 116. if a man be condemned in debt or bound in a Statute the goods which he hath the day of the judgment or knowledge of the Recognisance shall be bound to the execution in whose hands soever they shall come quod non fuit negatum Co. 7. 39. a every execution in judgement of law hath relation and retrospect to the judgment But a fraudulent conveyance or gift of Lands or goods shall not advoid any execution vide le statutes 50 E. 3. ca. 6. 1 R. 2. ca. 9. 2 R. 2. Stat. 2. ca. 3. 3 H. 7. ca. 4. 13 Eliz. ca. 5. 7 les liures 43 E. 3. fol. 3. Dier 295. Co. 3. 81. 82. 83. Lands in ancient demesne are liable to the Statute vide Fitz. Execution 118. and retorne 109. contra Lands or goods holden joyntly by the Connusor with a stranger and the connusor is condemned in damages and dieth before execution those lands or goods comming to the stranger by survivor are not extendable Br. execution 126. 148. 13 H. 7. 22. a. Lands of a wife are extendable during the coverture by debt of the husband 15 H. 7. fo 14. Rent may be delivered in execution Fitz. avowry 237 Exec. 63. Rent extent by release of the party may be extended Co. 7. â—8 39. As if a man hath judgement to recover debt or damages by that the rent which he hath of any estate of Frank-tenement is liable to it and therefore although that after judgment that be released yet that may be extended But a man shall never have a thing extended upon an execution except that he may grant and assigne the same thing by Shelly 28 H. 8. fo 7. So the profits of an Office or other thing which may not be granted or assigned over shall not be extended Dier fo 7. Goods demised pawned or pledged may not be taken in execution for his debt that demised or pawned them during or terme that they are sâ— demised or pawned 22 E. 4. fo 10. 34 H. 8 Br. pledges 28. As as if a man bona fide lease his Sheep or Oxen for years or if he
deliver his goods in pledge after shal be condemned in personall actions there such Sheep or goods shall not be taken and put in execution untill the lease be determined or the money paid for the pledge Br. distresse 75. So it seemeth of Goods which are distrained for just cause as for rent amercement damage feasant such like and are impounded they are now in custodialegis as long as they are so they may not be taken in execution Br. pledges 28. If the Connusor enfeoffe the King that land is discharged from execution Fitz. 266. so all other lands of the King are exempted from distresses and executions Plowden 242. b. If many men be severally seised of lands and they all severally joyne in one recognizance Satute Merchant or Statute staple in this case the connusee may not extend the land of any of the Connusors onely but all the Connusors ought equally to be charged the one of them alone shall not beare all the burthen because they are all in equall degree and in executions which concerne the realty and charge of the land the Sheriff may not doe execution of the Land of the one alone Co. 3. 13. a 14. When the Connusor hath aliened part of his land yet the Connusor himselfe at the Will of the Connusee may be solely charged because he himselfe is the person which was the debtor and which was bound and therefore he and his lands may be solely charged Co. 3. 14. Br. suite 10 12. And as to a purchasor of lands although their said Lands after the judgement recognisance or Statute be subject to the execution yet such purchasors have greater priviledges given to them by the law then the Connusor himselfe or his heires have So that if land of a purchasor be onely extended for the entire debt such purchasor shall have contribution against all the others of the purchasors and against the connusor or his heir but note that by this word contribution it is not to be understood that the others shall give or allow to him any thing by way of contribution but ought to be intended that the purchasor or party which hath his lands onely extended for all may by Audita querela or scire facias as the case requireth defeate the execution and therby shall be restored to all the meane profits and drive the Connusee to sue execution of all the land so that in this manner every one shall be contributory that is the land of every ter-tenant shall be equally extended co 3. 14. But if the Connusor enfeoffee the connuse of parcell of the land and a stranger of another parcell and reserve parcell in his hands now the connusee shall not have execution against the stranger or any other Feoffee for all shall be extinct against the Feoffees but yet against the connusor the connusee shall have execution of parcell which remaineth in his hands If connusor of Statute Merchant or statute Staple be taken and die in Execution yet the connusee shall have execution of his lands and goods co 5. 86. 87. Fitz. 246. b. If the connusor upon a Statute c. be taken in execution and escape yet his goods and lands upon the same statute may be extended for the escape and the action which the Plantiff had against the Sheriff for the escape is not satisfaction for the debts co 5. 86. By the statute of 3. Jacobi cap. 8. no execution shall be stayed or delayed by Writ of Error or superseded for reversing of any judgement in any action of Debt except the party which sued such Writ of error with two sufficient sureties be first bound to the party for whom such judgement is given to prosecute the said Writ of error with effect and to pay all the debt damages and costs c. if the judgement be affirmed and also costs and damages for such delay And therefore if a man be condemned in any court and his body put in execution and after he procures a Writ of corpus cum causa or certiorari to be directed to the Sheriff to remove his body there the Sheriff upon the said Writ ought to return the truth scil that his prisoner is condemned by judgement given against him upon which the Prisoner shall be forthwith remanded to prison there to remaine untill he hath satisfied the Plantiff 2 H. 5. cap. 2. Fitz. 151. e. If a statute be acknowledged to 2. and the one of them after purchase lands of the connusor then it seemeth that the said statute hath lost his force against both see the Register 147. If execution be sued of the body and of the land and after the connusor enfeoffeth the connusee of the Land or surrender parcell descended to him in all these cases the body shall be discharged for by discharge of part of the thing in Execution all is discharged Plow 72. b When the extent upon a Statute is satisfied and ran out by efluxion of time the Connusor may enter againe Co. 4. 67. But when the extent is satisfied by casuall profit the Connusor must have a Scire facias ibid. Defeasance to a Statue made after execution is good and defeateth aswell the Statute as the execution thereupon Co. 6. 13. But note where the Statute of Actor Burnell is that if the Prisors of the goods of the Connusor prize them too high in favour of the Debitor and to the dammage of the Creditor the things so prized shall be delivered to the Prisors by the same price and they to yield the Credtior his debt these Statutes are penall and extend not to any other Writs of execution but upon the Statute Merchant or Staple or recognizance and therefore upon a Writ of Elegit or other Writ of execution upon judgement if the extenders or prisors praise the lands or goods too high the Plantiff scil the Creditor hath no remedy Benl 4. P. and M. Note that when the lands or goods are delivered to the extenders they forthwith shall answer to the Creditor his debt by the words of the Statute and yet they shall not pay the money untill the daies assessed and limited in the extent Plow 205. b. If the Debitor complaine that his goods or lands were sold or delivered to the Connusee at too low a rate yet he hath no remedy Stat of Actor Bur. for in such cases the Debitor may pay the money and recover his lands and good 15 H. 7. 15. The creditor may well refuse to accept because the Sheriff will not deliver but parcell of the lands of the Connusor for if he accept it he shall be concluded to demand all afterward Fitz h. execution 84. 88. Execution upon a Recognizance REcognizance is an obligation of record acknowledged in any Court of Record or before any Judge or other Officer having authority to take it as before the Judges of the Kings Bench or of commons Pleas the Barons of the exchequer the masters of Chancery the Justices of Peace
c. those which are meere Recognizances are not sealed but are inrolled And sometimes are sealed with the seale of the party and may be with condition annexed or may bee single and then to have indentures of defeasance Also the King may by his commission give authority to any man to receive connusance of another man and to returne it in Chancery and by vertue of such commission if the man knowledge it before a commission any debt to another to be paid to him at a certain day and that certifieth into the Chancery with the commission c. Now upon certificate made of this connusance if he doth not pay the debt at the day he shall have an elegit upon this recognizance so taken aswell as if it were taken in the Chancery Upon a Recognizance there shall not goe a Capias but a Scire facias returnable in Chancery and upon the returne thereof they use to award a Capias a fieri facicias or an Elegit at the election of the Connusee 48 E. 3. fo 14. Upon a Recognisance the connusee may not have an action of debt against the heire for the recognizance is quod tunc vult concedit quod dictae pecuniae summa de bonis catall terr tenementis c. levetur so that the charge is imposed upon his Goods and Lands so that debt lieth not therupon against the heire co 3. 15. Yet upon a recognizance acknowledged to the use of the King although the words of the recognizance are de bon catt terr tenemenntis c. levetur the King shal have liable to his execution as wel the body as the lands goods of his Debitor see co 3. 12. b 11 93. a. Execution by force of a Recognizance in case of a common person shall bee of all the Goods and Chattels of the Connusor except his Plowcattle and implements of husbandry and of the moietie of his lands west 103. Note that this word Recognizance extendeth oftentimes in our Books to Statute Merchant and Statute staple Execution by Elegit AN Elegit is a Writ judiciall and lieth for him that hath recovered debt or damages in the Kings Court and must be sued within the yeare Tearmes de ley By force of an Elegit the Sheriff may take in Execution and deliver unto the party scil unto the cerditor the one halfe of the lands of the Connusor and all his good and chattels praeter Boves affros de carvia sua saving onely his Oxen and beasts of his plow untill the debt be levied upon a reasonable price or extent And this is by force of the Statute of Westminster 2. cap. 18. which is the first statute that did subject land to be taken in execution or upon a recognizance which is in the nature of a judgement 13 E. 1 ca. 18. co 3. 12. This Statute of Westminster 2. which giveth the Elegit provideth quod Vicecomes liberet ei omnia cattalla c. medietatem terrae suae quousque debitum fuerit levat per rationabile praetium extentum which last word praetium is to be referred to Chattels extentum to be referred unto lands rationabile praetium extentum ought to be sound by inquisition and verdict scil the apprizing of the goods and the extent or valuation of the Lands ought to be per sacram 12. probor legalium hominum c. for the Sheriff himselfe cannot appraise the goods nor value nor extend the lands upon an elegit neither can the Sheriff upon an elegit deliver any goods in Execution or extend any lands but onely such as are appraised and valued by the Jurors of the inquisition Co. 4. 74. otherwise it seemeth of all other sorts of Executions The words of this Statute of Westminster 2 ca. 18. are thus liberent ei medietaeem terrae debiteris which by construction of Law is the moietie of all that he hath at the time of the judgment given or at any time after Co. 7. 19. and by the equity of that Statute the Sheriff may deliver to the Creditor or Connusee the moietie of the Rents Br. Parliament 10â— Plow 178. Also these words in the said statute quousque debitum fuerit levatum shall be intended be or might be levied for if the Conusee or tenant by elegit or tenant by statute Merchant or Staple neglect to take the profits yet when the connusee might have been satisfied of his debt according to the extent the connusor shall have againe his land but it seemeth he may not enter in such case but is put to his scire facias Co. 4. 82. If Tenant by elegit be outed by a stranger there the time shall on and he is put to his remedie against the trespasser ibm If the Connusee be outed by wrong by the connusor or by any other claiming under him for life or years c. the connusee shall hold over co 4 66. If the lands delivered in execution be lawfully recovered taken or evicted from the possession of the connusee before his debt be satisfied he shall have a scire facias and upon that a new writ of Execution Statute 32 H. 8. ca. 5. co 3. 87. This Statute of Westminster 2. cap 18. that giveth the elegit doth not extend to Copyhold Lands for it should be prejudiciall to the Lord and against the custome of the Mannor that a stranger should have interest in the land holden by copy where by the custome it may not be transferred to any without c. co 3. 9. Terme for yeares may not be extended by the Sheriff upon elegit without finding the beginning and certainty of the terme by inquisition for execution by elegit ought to be by inquisition and if it be found by the inquisition that the debitor was possessed of certain land per terminum quorandum annorum ad tunc ventur This inquisition is insufficient for they ought to find the certainty and the reason is because that after the debt satisfied the party is to have again his terme if any part thereof remaine which certainty of terme ought to appear upon the returne of the Sheriff as it seemeth Cok. 4. 74. But upon a Fieri facias the Sheriff may sell the lease or terme without reciting any certainty scil the Sheriff may recite that the Debitor hath a terme of such a thing pro terminis diversis annorum ad nunc ventur and that he sold that by force of a fieri facias to I. S. and that is good so if the Sheriff sell all the interest that the Debitor hath in the Land that is good notwithâ—standing misreticall for by the common intendment the Sheriff may not have precise connuzance of the certainty of the commencement and certainty of the end of the terme but if he take upon him to recite the terme and mistake it reciting it falsly and sell the same terme this sale is void because there is not any
cast up will shew you the yeare of our Lord in which the years shall end so that if your Lease commenced at Michaelmas it will end at Michaelmas in the same yeare Or if it begin the twenty fourth of March in that yeare which is but one day before the end and change of the yeare then it will end the twenty forth of March the said yeare As for example A Lease began Michaelmas Anno. 7. Eliz. 1564. to endure for the terme of ninetie yeares I demand how many yeares is to come of this Lease and when the same terme of yeares will be determined first I set downe the day of the Month and the yeare of our Lord in which the Lease tooke his commencement as at Michaelmas 1564. unto which summ I adde the number of yeares which was granted by the Lease being ninety yeares which being cast up maketh the summe to be one thousand six hundred fifty four in which yeare at Michaelmas the yeares will be expired and the Lease determined then to know how many yeares are to come of the same Lease I set downe the Lease will expire and then substract out of that summe the yeare of our Lord which then is as for example one thousand six hundred twenty eight whereby I find the substracted number to be twenty six and so many yeares there is yet to come from Michaelmas 1628. A Lease was made for eighty yeares to commence at Michaelmas 1567 80 1647. the Lease will end The yeare of our Lord 1628 substracted sheweth that 0019. there is 19. yeares to come at Michaelmas 1628. A Warrant to Summon a Court of Surveigh THese are to will and in his Highnesse name to require you to give notice warning to be given to all singular the Tenants aswell Freeholders as Copiholders and they that hold by Lease or at Will of or within his Highness Mannor of C. in the County of S. that they and every of them do make their personal appearance at his highnes Court of Surveigh there to be holden upon Wednesday next being the 16. of July 1655. by 8. of the Clock in the forenoone of the same day at the usuall place of keeping the Court of the same Mannor and that they and every of them do then and there bring and shew forth or cause to be brought and shewd forth all their Deeds Leases Copies of Court-Rolles and all other their evidences whereby they and every of them doe pretend or claime to hold any Lands and Tenements whatsoever of or belonging to the said Mannor And also that they and every of them doe then and there bring and shew forth all such Rentalls Court-rolls Surveighes Terrats Suit-rolls and all other Escripts Writings Minuments and Records which they or any of them have any way concerning the said Mannor or any part member or parcel of the same and to give such further attendance in and about his Highnesse said service of survey as shall be of them and every of them necessarily required wherof faile not as you tender his Highnesse service dated c. Your loving friend I. N. To the Bayliff of his Highnesse Mannor of C. or to his deputy or to every of the Tenants of or belonging to the said Mannor and the members thereof Cause this to be published in the Church at the time of divine service and cause the under Tenants to give notice to them whose undertenants they are that dwell remote ARTICLES to be enquired of at a Court of Survey and Court-Baron for the Mannor c. 1. IMprimis you shall declare the true circuit and generall Boundarie or Boundaries of this Mannor Butts and Bonds and how farr and into what place or places doth the same extend and upon what other Lords Lands doth the same bound and border aswell on the East West North and South sides and whether have any of the generall or utmost bounds Meers or Markes been altered and by whom and where Concealments 2. Item whether do any person or persons within the precinct of this Mannor or any other whatsoever covenously conceale and wrongfully occupy any part or parts of this Mannor and who the same persons be and where and in what place and what be the names of the grounds concealed or encroached and in whose occupation be they and how long have the same been concealed or enclosed The mansion house demean lands 3. Item you shall enquire of the chiefe Scyte and Capitall Mansion house of this Mannor with the perticular Members and buildings and what demeane Lands Meadowes Pastures Arable Grounds Woods Underwoods hereditaments whatsoever are belonging to the same what be their severall names and where and in what parts of the Mannor doe the same lie and how be they butted and bounded and who be now the occupiers thereof and under what Estates Rents Herriots or services to your knowledge 4. Item what free-hold Lands Freehold Tenements or hereditaments be holden of this Mannor who be they that be seised thereof and what Rents reliefes workes customes or other duties do they pay or ought to pay for the same and by what tenure to your knowledge doe they and every of them hold and how are they butted and bounded and what quantity and number of Acres do the same containe and what is the true yearly value thereof 5. Item Copy-hold lands what Lands or Tenements be holden by Copy of Court-Roll within this Mannor who they be that are seised thereof and what Rents Herriots works customes or other duties do they pay or ought to pay for the same and what quantity and number of Acres do the Tenants severally hold and the quality therof and what is the true yearly value of the same 6. Item Tenants at will Tenants by Indenture Who be they that be tenants at will or tenants by Indenture what lands or tenements doe they hold or what rents or duties do they pay or ought to pay for the same and what is the quantity or yearly value therof 7. Item Decay of houses whether there be within this mannor any ancient houses decaied or fallen downe or any houses or buildings out of reparations and where and how long have the same been ruinous decayed or out of reparations and in whose default and to what charge or value would the new erecting or repairing of them or any of them amount unto 8. Item you shall enquire of all the falling down Wast Woods destruction and wasts of any Woods Underwoods or Trees in and upon the said Mannor or any part or parcell thereof made or done by any person or persons and by whom where and when and to what value Names of commons c. 9. Item what be the names of the Lords VVasts Heaths or Commons of what name or kind soever belonging to this Mannor which of them are free for the Lord of this Mannor to use in severalty and who be they that doe enter-common
may begin in futuro 93 Where a thing in Grant may commence in futuro 105 Estrey what properly an Estrey 84 Execution land at what time liable to execution what not 85 The severall sorts of them 153 Finall what 154 Quousque what 154 Statute Merchant and Staple 154 155 156 157 Exposition of words Tenement and hereditament 106 Vesturum terrae 106 Herbagium terrae 106 Herbagium bonorum 106 Seperalem Pischariam 106 Aquam suam 106 Profits of lands 108 Executors when chargeable 40 When they have a trust 76 And when an interest 76 What they have 86 What they may doe before probate 86 What they are to doe in proving the will 86 When they may refuse What they may retaine to their owne satisfaction 88 What they are to pay and what first Where one may release and doe an act without his companion and charge him 87 Who shall be executors and of an executor of an executor 88 F FEe what words raise a fee 59 Feoffment When a Conveyance is called a Feoffment 61 Fine what it is and what passes by it 61 What time to claime and who are bound by them 61 Vpon fines Feoffments and recoveries how the estate settles 62 What good to bind an estate taile with proclamation 105 Forfeitures upon what wrought 40 85 What estates of what persons wrought by it 40 Forged Deeds what Deedes are suspicious 116 Fraudulent Deeds what so accounted 84 68 What accounted made bona fide 82 Fresh suite upon what the party shall have his goods againe 84 G GRant where by the grant of one thing another passes 69 H HEires where bound by the Acts of their Ancestors 38 39 40 How to be charged 39 Who may be heires 40 41 Where they may take 77 What words in devises carry estates of inheritance 78 79 80 When Inheritances are lineall or collaterall and how shall inherit 124 125 Who is to be preferred 124 125 126 127 128 129 The heirs of what persons may inherit 129 Herriots what may be seised what not 131 I JVdgement upon what to be given 40 Joynture what a good Joynture and the manner of making it and its quallifications 70 71 Where it is a barre of dower where not 72 L. LIcence to Alien where may be countermanded where not 107 Limitation what is a limitation and what an interest 12 What words make it 95 Livery and Seisin how many sorts 35 How may be done 35 What Acts amount to it 36 37 What passes by it 36 Of what things to be given 37 Within the view and who to take by it 37 Who may do it 36 Where void 93 Where free hold passes without it 98 122 Legacy where to be taken without the consent of the executor 88 What to be paid first 89 VVhat to be sold to pay debts 89 Leases for how long to be made 60 Who may make leases for three Lives or twenty one years 66 And what quallification they must have 66 67 68 69 70 VVhen shall commence when not when inclusive and exclusive 131 132 Livery Severall and speciall and the difference 116 M. MAintenance what it is 134 Mise what it signifies 118 Misnosmer where a Party misnamed in a Deed shall take advantage of it 147 N. NOtice where requisite 33 O. OFfices where may be discharged without their Fee where not 101 Where may be forfeited 101 102 P. PArdon what operation it hath what not 41 42 Possession what it is 128 The several sorts of them 128 What actuall and what in Law ibid Purchase who may purchase 41 R. REleases of demands how far go 49 90 What they will extinct what not 55 Before Interest and where good 901. 91 VVhat words sufficient to work it 91 70 Reddendum the manner of it 13 24 Remainder what it is and its severall properties 2 3 4 5 10 Vpon what estate it may depend 7 VVhen it is contingent 89 VVhere good 48 How limited is void 89 99 Rent in what manner may be granted 5 VVhat persons shall have Rent and what time 22 24 VVithin what time to be payd and upon what to take advantage 22 23 VVhere the death of the Party shall discharge it 23 24 29 32 VVhere reserved shal go to the parties where not 27 VVhere the Profits shall be accounted as satisfaction 30 Remitter where wrought 16 Reversion what it is and why so called 101 Revocation where good 45 46 VVhere extinct 46 How construed 47 VVhere uses are revocable 55 VVhere may be done in part 5â—1 By what to be made ibid. VVhat Acts a good Revocation 57 58 VVhat to be observed in them 58 S. SAle in Market overt where it barres the right owner where not 83 Scire facias upon what Execution 156 157 Surrenders The force of Surrenders in Law 72 VVhat drowned by them 72 VVhere a Deed is surrendred 73 74 Who may surrender 74 What requisite in them 75 The severall sorts of them 75 76. What is surrendred by expresse words 76 Suspence What estates may be suspended by what 13 4. Where a Lease or other estate is suspended in the whole where but in part 118 119 Kings Silver what it is 118 T. Tail what are speciall and what generall estates Tail 16 Who may make gifts in Tail 77 What incident to it 95 Tender at what time to be made to save a condition 30 Where it is a Barre or the party may plead uncore past 111 112 Tithes to whom they belong 120 Who shall pay them 121 When Vnity of possession discharges them and what 121 For what things to be paid 121 122 When a Place is discharged by what act 134 135 Toll when to be payed 134 Treasure Trove VVhat said Treasure Trove 85 V USes the manner of their creation 16 17 18 19 20 How may be raised 47 To the uses of a mans last VVill and Testament 72 Vpon condition repugnant where void 79 VVho may take the force of it 81 Vsury what it is and when within the Statute 121 122 123 124 W. WArranty What words make a generall VVarranty 49 VVard where the heir is out of VVard 131 VVast the full definition of the word without impeachment of wast 99 50 VVho may punish it 50 51 The severall kinds of it 51 52 What the destruction 53 What recoverable ibid. VVhat processe in it 51 53 VVill and Testament what passes by it 64 VVhat sufficient to passe Lands 64 Of what things may be made 64 65 78 82 Where alterable where not 66 79 80 81 Wreck VVhat made VVreck 84 Y. YEare How many Parts it is divided into 118 FINIS
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
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
Mortgage If a man make a Feoffment in Fee upon Condition that the Feoffee shall pay to the Feoffor his Heires or Assignes twenty pounds at such a day and before the day the Feoffor make his Executors and dieth the Feoffee may pay the same to the Heire or to the Executors for they are his Assignes in Law to this intent But if a man make a Feoffment in fee upon Condition that if the Feoffor pay to the Feoffee Morgage his Heires or Assignes twenty pounds before such a Feast and before the Feast the Feoffee make his Executors and dieth the Feoffor ought to pay the money to the Heire and not to the Executors for the Executors in this case are no Assignes in Law and the reason of this diversity is this for that in the first case the Law must of necessity find out Assignes because there cannot be any Assignes in Deed for the Feoffor hath but a bare Condition and no Estate in the land which he can assigne over But in the other case the Feoffee hath an estate in the land which he may assigne over and where there be Assignes in Deed the Law shall never seek out or appoint any Assignes in Law And albeit the Feoffee make no assignment of the state yet the Executors cannot be Assignes because Assignees were onely intended by the Condition to be Assignes of the Estate But if the Condition be to pay money to the Feoffee his Heires or Assignes Morgage Vide Lord Coke 2. pars fol. 79. 80. many excellent matters touching Conditions and the Feoffee make a Feoffment over it is in the election of the Feoffor to pay the money to the first Feoffee or to the second Feoffee and so if the first Feoffee dieth the Feoffor may either pay the money to the Heire of the first Feoffee or to the second Feoffee for the Law will not enforce the Feoffor to take notice of the second Feoffment nor of the validity thereof but at his pleasure and the first Feoffee and his Heires are expresly named in the Condition Plow Com. 186. 288. 2 Eliz. Dyer 181. Co. 5. parse fo 96 97. Goodales case If a man be bound in an Obligation with Condition Conditions impossible The Obligation or Feoffment good and the Condition void but estates shall not be enlarged by a Condition impossible that if the Obligor do go from the Church of Saint Peter in Westminster to the Church of Saint Peter in Rome in three houres that then the Obligation shall be void the Condition is void and impossible and the Obligation standeth good And so it is if a Feoffment be made upon such or the like condition the estate of the Feoffee is absolute and the condition impossible and void If a man make a Lease for life upon condition that if the Lessee goe to Rome as is aforesaid that then he shall have Fee the condition precedent is impossible and void and therefore no Feesimple can grow to the Lessee If a man make a Feoffment in Fee upon condition that the Feoffee shall reinfeoffe him before such a day and before the day the Feoffor desseise the Feoffee and hold him out by force untill the day be past the state of the Feoffee is absolute for the Feoffor is the cause whereof the condition is impossible to be performed and therefore shall never take advantage for non-performance thereof and so it is if A. be bound to B. that I. S. shall marry I. N. before such a day and before the day B. marrieth with Jane N. he shall never take advantage of the Bond for that he himselfe is the meane that the condition could not be performed and so thereby become impossible Paris A man makes a Feoffment in Fee upon condition that the Feoffor shall within one yeare go to Paris about the affaires of the Feoffee and presently after the Feoffee dieth so that the condition is become impossible by the act of God yet the estate of the Feoffee is become absolute for though the condition be subsequent to the estate yet there is a precedencie before the re-entry viz. the performance of the condition And so it is if the Feoffor shall appeare in such a Court the next Tearme and before the day the Feoffor dieth or Cognisor or Obligor dieth the Recognizance or Obligation is saved And if a condition of a Bond c. be impossible at the time of the making of the condition the Obligation is single And so it is in case of a Feoffment in Fee with condition subsequent which is impossible the state of the Feoffee is absolute but if the condition precedent be impossible no estate or interest shall grow thereupon Conditions against the Law But it is commonly holden that if the condition of a Bond c. be against the Law that the Bond it selfe is void But herein the Law distinguisheth between a condition against the Law for doing of any act that is malum in se and a condition against law that concerneth not any thing that that is malum in se but therefore is against law because it is either repugnant to the estate or against some maxime or rule in Law and therefore the common opinion is to be understood against Law for the doing of some Act that is malum in se and yet therein also the Law distinguisheth As if a man be bound upon condition that he shall kill I. S. the Bond is void but if a man make a feoffement upon condition that the Feoffee shall kill I. S. the estate is absolute and the condition void In conditions against the Law the estates be good and the conditions void unlesse the estate commence by the condition and then both are void nor shall estates be enlarged by any such condition and if an obligation bee endorsed expresly with a condition which is against the law then the obligation and condition are both void But if a man be bound upon condition wherein other conditions are tacite implied and not plainely expressed in the condition then the obligation is good and the condition void because such things are not expresly rehearsed in the condition and so it cannot be expresly said that the will of the Obligee was that the Obligor should keep him without dammages for such Acts to be done against the law As if a man be bound to keep the Obligee without dammages and sheweth not in what thing for he may have damage for treason or other Felony which is implied and not expressed and so the condition void If a man make a Feoffment in Fee upon condition Conditions repugnant the condition is void and the Bond or estate good that he shall not Alien this condition is repugnant and against law and the estate of the Feoffee is absolute but if the Feoffee bee bound in a Bond that the Feoffee or his heires shall not Alien this is good for he may Alien if he will forfeit his Bond. So