of Conveyance was first ordained by a Statute made the 23 of H. 8.1 When first of force before which Statute no Man might give Land by Will except it lay â—n some Burrough-Town where â—here was a special Custom That Men might give their Lands by Will as it is in London and many other Places The not giving of Lands by Will The Reason was thought to be a defect by the Common Law that Men in the Wars or suddenly falling Sick had not power to dispose of their Land except they would make a Feoffment levy a Fine or suffer a Recovery which lack of time would not permit And for Men to do it by those means so as they could not undo it again was thought hard besides even to the last hour of Life Mens Minds might alter upon further proof of their Children or Kindred or by encrease of Children or for Debt or for defect of Servants or Friends For lack of Wills Men used the following Device For which cause it was thought reason that the Law should permit him to reserve to the last instant the disposition of his Land and yet then also to give him a means to dispose of it how he pleased which seeing it did not Men used this Device following The Device They conveyed the full Estate in their Lands in their good Health to Friends in Trust A Feoffment in trust to Friends called properly Feoffees in Trust and then they declared by their Wills how these Friends should dispose of their Lands and if those Friends would not perform it Who were compelled to Perform it the Court of Chancery was to compel them by reason of the Trust and this Trust was called the use of the Land so as the Feoffees had the Land and the Party himself had the Use which Use was an Equity to take the Profits himself and that the Feoffees should make such Estates as he should appoint them and if he appointed none then the Use was to go to the Heir as the Estate it self of the Land should have done for the Use was to the Estate like to the Shadow following the Body But observe that by this course of putting Lands in Use there were many inconveniencies for this Use that first grew of a reasonable Cause Many Inconveniencies grew thereby as a Man knew not against whom to bring his Action The Wife defrauded Husband defrauded Lord defrauded Creditor defrauded Tenant defrauded to give Men liberty to dispose their own was turn'd to defraud many other just and reasonable Rights as namely A Man that had cause to sue for his Land knew not against whom to bring his Action nor who was Owner of it the Wife was defrauded of her Dower the Husband of being Tenant by the Courtesie the Lord of his Wardship Heriot and Escheat the Creditor of his extent for his Debt the poor Tenant of his Lease for the Rights and Duties were given from him that was Owner of the Land and another who was not the old Owner And Cestuy que use took the Profits whose Estate was not liable to Dower Debts or Forfeiture for Treason whom we call the Feoffor but Cestuy que Use he to whose use the Feoffment was made should take the Profits and have power to dispose the Land by his direction to the Feoffees and yet he was not such a Tenant nor so seized of the Land as that his Wife could have Dower or the Land be extended for his Debts or that he could forfeit it for Treason or that his Heir could be in Ward for it Cestuy que Use could not be in Ward or make Leases or any Tenure of Duty fall to the Lord by his Death or that he could make any Lease of it The Frauds partly remedied by 1 R. 3. 4 H. 7. 16 H. 8. Action against him that took the Profits Which Frauds as by Degrees of times they increased were remedied by many Statutes as namely by the Statute of 1 H. 7. 1. it was appointed that the Action might be brought against him that took the Profits Frauds yet increased which was the Cestuy que Use he to whose use the Feoffment was made which Frauds nevertheless daily multiplying in the end the Parliament of 27 H. 8. purposing to take away all the Uses Another remedy and to reduce the Laws to the ancient form of conveying Lands by publick Livery and Seisin Fine or Recovery To carry the Estate from the Friends in Trust presently to Cestuy que Use and so this device ended did ordain that when Lands were put in Trust or Use there the Possession and Estate should be presently carried out of the Friend in Trust and setled and vested in him that had the Use for such term and time as he had the Use See the Statute And by this Statute of 27 H. 8. The Remedy worse than the disease and therefore the power of disposing Lands by Will was clean taken away amongst these Friends and so this Statute did as it were dispendere justum cum impio take away what might seem reasonable by a means less reasonable Whereupon in the 32 of H. 8. 1. Wills in Writing began Another Statute was made to give Men power to give Land by Will which took away many Inconveniencies But this Statute was limited Were limited by many particulars as to be seized in Fee-simple to be wholly seized and not joyntly with restraint to Lands held in Capite by Knight-Service of the King that a third of the whole should descend to the Heir to answer Wardship Livery and Primer Seisin to the Crown Were remedied But by Statute 12. Car. 2. Capâ— 4. All Wardships Tenures in Capite Livery and Primer Seisins and other Dependences were taken away and the Act 32 H. 8. cap. 6. 33 H. 8. cap. 22. repealed How the Will must be signed and subscribed And by the Statute 29 Car. 2. For prevention of Frauds declares that all devises of Lands or Tenements deviseable either by the Statute of Wills or by force of the Custom of Kent or of the Custom of any Burrough or any other particular Custom shall be in Writing signed by the Devisor or some in his presence by express directions and subscribed in his presence by three or four credible Witnesses or else to be utterly void See the Statute Devise in Writing revocable by Writing only This Clause does not say the Witnesses shall subscribe And further That no Devise in Writing shall be revocable but by some other Will or Writing declaring the same or by burning cancelling tearing or obliterating the same by the Testator himself or by his directions and consent in his presence the Writing to be signed in the presence of three or four Witnesses declaring the same See the Statute That if any Cestuy que Trust The Heir of Cestuy que Trust chargeable for Assets die leaving a Trust in
after his death she may enter though she had joyn'd in the Surrender and notwithstanding that She is not bound he to whom the Surrender was made died seized of the Land in Fee and his Heir be in by descent Perkins sect 112. She shall be bound But if a Feme-sole who is Lessâ—… for Years of House or Land taketh a Husband who surrendreth anâ— dieth before the Years are out here she shall be bound by this Surrender Ibid. sect 113. Good Surrender And if Tenant in Dower iâ— Land granteth her Estate unto him in the Reversion this is a Surrender Ibid. 623. If one hold Lands for Life How surrender taketh effect the Remainder to a Stranger for Years and if the Lessee for Life surrendreth unto him in Remainder it shall not take effect because that an Estate for Life cannot drown in an Estate for Years Perkins sect 589. If a Copyholder for Life surrender to the use of another Estate detertermined who is â—dmitted by this the Copyholders Estate is clearly determined But if a Copyholder in Fee surâ—ender to the use of another for Life Revived after his Death he shall have â—t again 1 Cro. 148. A Joynt-Tenant Joynt-Tenant cannot surrenâ—er to his Fellow Noys Max. 73. Lessee for Years Lessee for Years cannot surrender â—efore his Term begin though he â—ay grant also he cannot surrenâ—er part of his Lease Ibid. The Husband may surrender the Wifes Dower for his Life Husbands surrender of his Wifes Estate as beâ—ore and her Lease he may surrenâ—er for ever Noy 74. Note How it effecteth That those things which â—annot take effect without Deed â—annot be surrendred without Deed â—xcept in some special Cases By Deed. And therefore if a Man seized of Rents Tithe Common c. granteth the same for Life or Years the Grantee cannot surrender them without Deed Perk. sect 581 582 584. But that those things that may not be granted without Deed may be determined by the surrender of the Deed Surrender of Deed. to the Tenant of the Land Noys Max. p. 73. Confirmation Defined Confirmation is a strengthening and making good of an Estate formerly had and yet voidable or defeasible though not presently void by him which hath a better or longer Estate in the thing granted than the Tenant thereof hath Lit. sect 522. West page 1. Lib. 2. sect 457. And it is made by the words have ratified approved and confirmed similia Defined Noy in his Max. saith Confirmation is when one ratifieth the Possession as by Deed to make his Possession perfect or to discharge his Estate that may be defeated by anothers Entry Noys Max. p. 76. Landlord and Tenant p. 106. saith A Confirmation is the Conveyance of an Estate or Right that one hath unto Lands or Tenements to another that hath the Possession thereof or some Estate therein Defined whereby a voidable Estate is made sure and unavoidable or whereby a particular Estate is increased and â—nlarged and though sometimes it may pass by the words dedi conâ—essi yet the most proper words â—re confirmavi ratificavi approâ—avi which do signifie ratum firâ—um facere supplere omne defectum â—nd he that makes the Confirmaâ—ion is called the Confirmer and â—e to whom 't is made the Conâ—rmee Co. Lit. 295. Bract. 1. Lib. 2. â—8 And there are two kinds of Conâ—â—rmation Two sorts of Confirmations Confirmation in Deed â—he other implied by Law Conâ—irmation by Deed is when the Act done or Deed made is inâ—ended for a Confirmation Conâ—irmation implied Implied is when the Law â—y construction makes a Confirmation of a Deed made to another purpose and both these are always in Writing Co. Rep. 9. fol. 142. Co. Lit. fol. 295. Shephards Touch-stone C. 18. p. 311. Where it effecteth If a Tenant for Life will granâ— a Rent-charge in Fee then hâ— in the Reversion may confirm the same Grant where a Man by his Entry may defeat an Estate there by his Deed of Confirmation he may make the Estate good Noyâ— Max. 77. The words A Confirmation to charge aâ— Estate must have words to shew what Estate he shall have Ibid. A Confirmation cannot chargâ— Cannot effect an Estate that is determined by express Condition or Limitation Ibid. Confirmation to Tenant for Life of his Estate only for an hour shall be good for Life For an hour good for Life and so 〈◊〉 made to a Tenant in Fee it shalâ— be good for ever Ibid. A Lease for Years may be confirmed for a Time or upon Condition Upon Condition or for a piece of the Land Ibid. But if a Franktenement be as afore it shall enure to the whole absolutely Noy Ibid. To confirm the Estate of Tenant for Life to his Heirs Word Heirs to be observed cannot be but by Habendum the Land to him and his Heirs and therefore it is good to have such an Habendum in all Confirmations Ibid. In a Confirmation new Service may not be reserved and old may be abridged Ibid. Confirmation hath relation to release and where he that as before hath a better Title in the Land than the Tenant releaseth to the Tenant this is a Confirmation West pa. 1. Lib. 2. sect 457. A Confirmation made by him that at the time of the making thereof had no Right is void Noys Max. p. 74. And so if a Right come to him afterwards unless it be with Warranty and then it shall bar him of all Right that shall come to him after the Warranty made Ibid. Where voidable But note A Confirmation made to one Disseisor shall be voidable to the other so shall not a Release Ibid. p. 77. Note That if the King for him and his Heirs grants Catalla felon ' fugitivorum or the like which is in grant and dies the Grantee needs no Confirmation of the new King Where necessary but if it be a Fair or Market or the like and it is abused or misused as it may be or if it be a judicial or ministerial Office or Power as to be a Justice oâ— Peace Escheator or the like there he ought to have a Confirmation of the new King See Brooks Tit. Confirmation 19 29. 1 R. 3.4 In a Confirmation it is not amiss in the Premisses of the Deed specially to recite the Estate Estate to be recited of the Tenant which must be confirmed and also the Estate of him that shall confirm and to expresâ— the Consideration thereof if any such be West Symb. part 1. Lib. 2 sect 457. Revocation and New Declaration This seems to be dependant upon some former Deed or Conveyance being a Reservation by Covenant to revoke a Precedent and by Declaration to create a new Estate of the Lands after which the Lands settle accordingly Will. The last of these Conveyances â—s a Will in Writing Wills in Writing which course
THE ART OF CONVEYANCING ARS CLERICALIS THE ART OF Conveyancing EXPLAINED Being a Collection gathered with great Care and Industry out of the many Books of the Law Wherein the Nature and Effect of such Deeds and Instruments by which Lands are conveyed from one Man to another are clearly demonstrated Also the Forms and orderly Parts which ought to be observed in Deeds and Conveyances are laid open and explained By R. G. Gent. LONDON Printed by the Assigns of Richard and Edward Atkins Esquires For Thomas Basset at the George near St. Dustans Church in Fleet-street 1690. TO THE READER THE Law of England consists of several curious Parts or Branches some whereof have relation to the Theory others more immediately to the Practice Of the later not one hath given greater Reputation or contributed more to the enriching its Professors than the Art of Conveyancing which proceeds chiefly from the Necessity attending it in regard no Estate or Property can possibly be setled or secured without it There are several Books indeed in all Volumes already extant of Conveyanceing but many of them being desicient either in Matter or Form heap't together without Judgment and backt with no manner of Authority do instead of instructing the Tyro's of the Law lead them into manifest Errors neither is any of them express upon this Subject though most of them treat something thereof Therefore to demonstrate to the World by a small Essay what may be further performed in this Nature by more time and thought this little Tract hath ventured abroad â—eing a brief Collection out â—f those many Books where â—ou have a Prospect altogether and in Order not â—rowded with Precedents nor mixt with improper Matter but full and clear to the understanding of the whole Art and scarce a Paragraph in the whole but what is warranted by two or three Authorities It was chiefly intended for a help to Young Clerks though perhaps none of the old Ones will have occasion to repent the perusing it 'T is true there is no new Invention in it as to Matter neither indeed can it be expected in Books of this Nature which are or ought to be govern'd by Authorities and Precedents and as to the Form or Method 't is wholly new and perhaps more compact and orderly than any Book of this kind Vale fruere THE CONTENTS THIS Treatise is divided into six Chapters CHAP. I. Shews how Property in Lands is â—en and transferred from one to â—ther CHAP. II. Shews the Nature and Effect of such â—â—eds by which Lands usually pass â—nd are conveyed from one to anoâ—hâ—r CHAP. III. Shews the Forms and orderly Parts â—hich ought to be observed in Deeds â—nd Instruments CHAP. IV. Shews what Things are required tâ— the perfecting a good Deed or Instrument CHAP. V. Shews the Form and Effect oâ— Livery of Seisin and Attornment c. And what is a Reversion Remainder and particular Estate c. CHAP. VI. Shews the several Ways whereby Men get Property in Goods and Chattels Advertisement LEgis Series Or the Process of the Law in order with some Entries both in Kings Bench and Common Pleas useful for Young Clerks to direct them in their first â—teps to Clerkship per R. G. Gent. price 6 d. CHAP. I. Shewing how property in Lands is gotten and transferred from one to another Of Property in Lands THE intent of this Treatise being to lay down and explain the Art of Conveyancing whereby the property in Lands is transferred from one to another I shall first shew the several ways by which property in Lands is or may be gotten And note That property in Lands is gotten and transferred from one to another four ways Viz. 1. Entry 2. Descent 3. Escheat 4. Conveyance I. Property in Lands by Entry Property by Entry formally and strictly taken was where a Man found a piece of Land that no other possessed or had Title to and entred thereon This Entry gained him the property of it and this seemeth to be grounded upon the Text Terram dedit Filiis hominum c. In the Case of Occupancy Occupancy which ariseth by Conveyance as Where Lands are conveyed to A. for the Life of B. and A. dies without making any Estate or Assignment thereof here whosoever first entreth after the death of A. getteth property in that Land during the Life of B. for the Land cannot revert to him that leased to A. till B. die and to the Heir of A. it cannot go for it is not any Estate of Inheritance nor descendable to the Heir without special words And as for the Executors of A. they cannot have it for that it is not an Estate Testamentary to go to them as the Goods and Chattels do so as in truth no Man can entitle himself to the Land and therefore the Law preferreth him that first entreth and he is called Occupans and shall hold it during the Life of B. but yet such a one must pay the Rent perform the Conditions and do no wast or harm N. B. fol. 83. Co. Lit. 41. But this Estate of the Occupant may be prevented at the making of the Grant 1. Occupancy how prevented by adding these words To have and to hold to A. and his Heirs during the Life of B. for then t is descendable to the Heir It may also be prevented after â—he making of the Grant or Lease for Life though the word Heirs be â—mitted by assigning the Estate â—ver to some Friends and their Heirs 〈◊〉 trust during the Life of B. c. â—o Lit. fol. 41. Shepards Touchstone â—ag 108. And note that the Statute 29 Car. 〈◊〉 29 Car. 2. hath provided That the Lessee â—r Grantee may devise such Estate or anothers Life by his Will in â—resence of three or more Witâ—esses If he devise it not Ibid. and his Heir â—ecome Occupant it shall be chargeble in his hands as Assets by Deâ—ent as in case of Lands by Fee-â—mple Stat. eod ' And in case there be no special Occupant Ibid. then it shall go to the â—xecutors or Administrators of the party that had the Grant and shall be Assets Stat. eod See the Statute Property by Descent 2. Inheritance is Fee-simple to a Man and his Heirs for ever Property in Lands gotten by Descent is where a Man having Lands of Inheritance dieth not making any disposition thereof but leaveth it to go as the Law appointeth and the Law appointeth that it be cast upon the Heir that is called a Descent in Law and upon whom this Descent is to light is the question Now Descent is either Lineal Lineal Descent or Collateral Lineal Descent is conveyed downward in a right-line from the Grand-father to the Father and from the Father to the Son and from the Son to the Nephew c. Collateral Descent Collateral Descent is springing out of the side of the whole Blood as Grand-fathers Brother Fathers Brother c. as you may plainly
discern by the Degree of Parentage in the Lord Coke upon Lit. fol. 15. Yet it may be here to the purpose in hand and expected that something more be said concerning the Descent of Lands Therefore take these Rules following borrowed from Mr. Noy that Learned Expositor of the Law Nota That Lands or an Estate of Inheritance which is to a Man and his Heirs for ever doth always descend for it may not lineally ascend from the Son which is seized in Fee and dieth to his Father but descendeth to his Uncle or Brother and to his Heirs which is the next of the whole Blood for the half Blood shall not Inherit but the most worthy of Blood as of the Blood of the Father before the Mother and of the elder Brother before the other if Born within Espousals See Noys Max. p. 22. But note That if Lands be once setled or entailed in the Blood of the Father the Heir of the Mother shall never have them because they are not of the Blood of him that was last seized Idem page 23. For a Descent shall be intended to the Heir of him that was last actually seized Idem p. 22. And if a Man disseiseth another and dieth seized and his Heir entreth or maketh a Feoffment to another in Fee or in Tail and he dieth and his Heir entreth these Descents put the disseised c. from an Entry Noys Max. p. 34. But a dying seized of a Term for Life or of a Remainder or Reversion doth not take away an Entry for he must die seized in Fee Idem pa. 34 35. The Sister of the whole Blood where her elder Brother did enter after the death of his Father shall inherit before his Brother of the half Blood or any other Collateral Cousin Ibid. Yet notwithstanding such a one may be Heir to a Common Ancestor as if the Land Rent Advowson or such like do descend to the elder Son and he die before any Entry or Receipt of the Rent or Presentment to the Church c. then the Heir of him that was last actually seized shall Inherit as the younger Son c. and the reason is because that in all Inheritances in Possession he which claimeth Title thereunto as Heir ought to make himself Heir to him that was last actually seized Idem p. 22 23. Note The Possession of a Lessee for Years or of a Guardian shall invest the actual Possession and Frank-tenement in the elder Brother Idem p. 23. But if he die seized of a Reversion or Remainder or an Estate for Life or in Tail there he which claimeth the Reversion or Remainder as Heir ought to make himself Heir to him that had the Gift Ibid. And so in case of a Purchase it shall descend to the Heir of the Blood of the first Purchasor As if the Father purchase Land and it descendeth to his Son who entreth and dieth without Heirs of the Fathers part then the Land shall descend to the Heirs of the Mother of the Father or of the Father of the Father as the Heirs may be and not to the Heirs of the Mother of the Son although they are more near of Blood to him that was last seized yet they are not of the Blood of the first Purchasor Ibid. If the Heirs be Females in equal degree as Daughters Sisters Aunts c. they shall Inherit together and are but one Heir and are called Parceners Idem p. 24. But note If a Man be seized of Lands or Tenements to hold to him and his Heirs for ever It is the best Inheritance a Man may have and he may Sell or Grant or make his Will of those Lands but if otherwise he die they do descend to his Heir of the whole Blood ut supra with respect to the several Cases c. See Idem pa. 20. Property by Escheat It where the Owner of Land dieth in possession without Child or other Heir then the Land for lack of Heir is said to escheat to the Lord of whom t is holden And it is to be understood That all Lands are said to be holden of the Crown either immediately or mediately and the Escheat pertaineth to the immediate Lord not to the mediate Lord See Camb. Brit. pag. 93. Cowels Interp. Tit. eod ' The lack of Heir happeneth principally in two Cases Magna Charta 31. Fitz. N. B. fol 143. T. c. the one where the Owner of the Land is a Bastard the other where the Owner is attainted of Treason or Felony for neither can a Bastard have an Heir unless he be his Child nor a Man attainted of Treason or Felony have any Heir though he be his own Child Property by Conveyance 4. Divers Estates by Conveyance Is distributed into divers Estates Viz. for 1. Years 2. Life Viz. in 3. Tail 4. Fee simple And these Estates are created either by Word Writing or Record 1. By Word or Parol By Parol as Leases for Years 2. By Writing By Writing as by Indenture Grant c. 3. By Record By Record as by Fine Bargain and Sale c. But note Nota. That Leases parol are void if they exceed three Years from the making and if they do not exceed yet two third parts of the improved value of the thing demised must be reserved to the Landlord See Stat. 29 Car. 2. Leases for Years 1. Of Leases for Years are mostly made by Indenture by words of Demise Grant and to Farm let with such Conditions and Covenants as the parties agree upon Co. Lit. fol. 45. Bro. Leases 60. 67. h. And such Leases be called Chattels Real They are called Chattels Real c. and are not inheritable by Heirs but go to the Executors or Administrators they be saleable for Debt in the Life of the Owner or in the Executors or Administrators hands by Writ of Execution They be forfeited to the Crown by Outlary Are saleable c. or by Attainder for Felony Treason or Praemunire c. 32 L. Ass pl. 6. See Wentworths Executor pa. 76. If a Lease be for 500 Years it is but a Chattel Extents for Debts are of the same Nature as Leases for Years and cannot be entailed Registr Practical p. 192. Of like nature are Interests gotten in other Mens Lands by Extents for Debt upon Judgment in any Court of Record upon Statute-Merchant or of the Staple or Recognizances and the Tenants thereby are called Tenants by Elegit All these also be called Chattels Real and do go to the Executors or Administrators and not to the Heir and are saleable and forfeitable as Leases for Years are Idem pa. ead See more hereafter Ch. 2. Leases for Lives Are called Freeholds 2. Leases for Lives are Freeholds Bract. lib. 2. c. 9. which are also made by Writing or Record And when by Writing there must be Livery and Seisin given at the making of the Lease the manner of which Livery and Seisin is set
down Ch. 4. This Lease for life is not saleable by the Sheriff for Debt but the Land is to be extended Not saleable but extendable at a yearly value Not forfeited except c. to satisfie the Debt neither is it forfeited by Outlary except in Felony nor by any of those means before mentioned to which Leases for years are liable and subject saving only Attainders for Treason Felony or Praemunire and then only to the Crown not to the Lord of the Escheat Vide 25 Ed. 3. Stat. 5. cap. 2. This Estate will go to the Heirs Will go to the Heir if the word Heirs be contained in the Grant if not contain'd Then to the Executor Or Executor in case of no special Occupancy as before Page 2 3. A Lease for life or for years How Leases for Life may be made may also be made by Fine of Record Bargain and Sale or by Covenants to stand seised to uses upon good consideration of Marriage or of Blood See Bro. Fines 106. Note If a Man have a Lease for never so many years determinable upon life or lives which some Persons call a Lease for lives it is but a Chattel Wentworths Executor page 28. Of Entails Entail signifies Fee entailed 3. Entail defined That is Fee scanted or limited and tied to certain Conditions See Cowels Int. Tit. eod These Entails may be created by a Gift with Livery and Seisin to a Man and the Heirs of his Body How created This word Body making the Tail may be restrained to Males or Females to the Heirs of the Bodies of the Husband and Wife to the Body of his Father or Grand-father in Tail special or general When they began Entails began by a Statute in Edward the Firsts time Westm ca. 2. de Donis Conditionalibus for before that Statute Feoffees after they had Issue had power to alien and disinherit the Issue contrary to the mind of the Donees By Statute West ca. 2. And by this Statute they were made so strong as that the Tenants in Tail could not put away the Land from the Heir by any Act of Conveyance or Attainder nor let it or any way charge or incumber it longer than for his own life see the Statute The inconveniencies by that Stature But the inconveniency thereof was very great for by this means the Lands were so surely tied upon the Heir as the Father could not put it from him It made the Son disobedient negligent and wastful Marrying often without the Fathers consent and to grow insolent in Vice knowing there could be no check of disinheritance to restrain him It made also the Owners of entailed Lands less fearful themselves to commit Felonies Murders Manslaughters and Treasons Committing Felonies Murders Manslaughters and Treasons for that they knew that none of their Acts could hurt their Heir in his Inheritance It hindred Men that had entailed Lands that they could not make the least Profit of their Lands by taking Fines or other Improvements Hindred Improvement of Lands For that none upon so uncertain an Estate of the Owners life would give him a Fine of any value nor lay any great Stock upon the Land that it might yield an improv'd Rent And lastly These entailed Lands defrauded the Crown and many Subjects of their Debts Defrauded the Crown and Subjects of their Debts for that the Land was not liable thereto longer than for his own life which made that the King could not safely commit any Office of account to such whose Lands were entailed Hindred the Owners to borrow Mony nor other Men to dare to lend them Mony These Inconveniencies were all remedied by later Statutes The Inconveniencies remedied by Fine c. as namely by the Statutes of 4 Hen. 7. and 32 Hen. 8.36 A Tenant in Tail may disinherit his Son by Fine and Proclamations And by that means also may make it subject to his Debts and Sales Grant by several Statutes And by a Statute made in 26 Hen. 8. cap. 13. Tenant in Tail doth forfeit hiâ— Land for Treason Which make Tenants in Tail forfeit for Treason and they may make Leases And by another Statute made in the 32 of H. 8 cap. 28. He may make Leases gooâ— against his Issue for twenty onâ— years or three lives so it be noâ— his chief Lands or Demeans noâ— a Lease in Reversion nor a lesseâ— Rent reserved than the Tenants for the most part of twenty years before have paid And so as such Lease have not any matter of discharge for doing Wasts or Spoils and by a Statute made the 33 H. 8. Tenants in tailed Lands are liable by Extent for the Kings Debt They are liable to the Kings Debt and are saleable but And by a Statute 13 Eliz. 4. they are saleable for his Arrearages upon his account for his Office not forfeited for Felony So that now it resteth that entailed Lands have these two Priviledges only viz. Not to be forfeited for Felonies nor extended Not extended for Debt after the Parties Death except the Tail be cut off Except the Tail be cut off by Fine or Recovery Note These entails are now usually created by settlements upon Marriage for the benefit of the Posterity and may be cut off as before is shewn And these settlements entailing such Land unto the Issue or Posterity describes the Uses Behoofs Intents Purposes Provisos Conditions Powers and Limitations of the Parties thereto and thereby meant and the Lands are usually made over to Trustees by Fine and Recovery to stand seised to such Uses c. The last and greatest Estate of Land is Fee-simple Fee-simple what which is an Estate absolute to one and his Heirs for ever To one and his Heirs for ever Therefore he that maketh a Lease for life to one or a Gift in Tail may appoint a Remainder after that Estate to another for life or in Tail and a third in Fee-simple but after a Fee-simple he can limit no further Estate And if a Man does not dispose of a Fee-simple by way of Remainder when he maketh the Gift in Tail or for life or for lives then the Fee-simple resteth in himself as a Reversion Co. on Lit. fol. 112 113. Brook Tit. Don. Remainder fol. 245 Glanv li. 7. cap. 1. And the difference between Remainder and Reversion Difference between Remainder and Reversion is this The Remainder is alway a succeeding Estate at the time when the precedent is appointed But the Reversion is the Estate left in the Giver after a particular Estate Note A particular Estate is such as is derived from a General Estate made by him for years life or in tail See hereafter Ch. 5. Bract. lib. 2. cap. 25. Where the Remainder is made with the particular Estate then it must be done by Deed in Writing with Livery and Seisin and if the Giver will after dispose of the
Render what Estates are to be created thereâ—y and of the Reservation of Rents â—omine poenae and Clause of Distress â—nd Services with the Clause of Warranty For which it is to be â—oted That when a Fine is levied to â—ivers Cognizees the Right shall be â—â—mited How the Right shall be limited 3 H. 6. 42. 24 E. 3. 64. to one of them only and â—he Estate limited to his Heirs onâ—y whose Right it is knowledged to â—e Ibid. As this Et est Concordia talis Example scilicet quod â—red ' A. Cogn ' Tenementa pred' cum perâ—in ' esse jus ipsius B. ut illa quae iidem B. C. habent de dono pred' A. Et â—ll ' remisit quiet ' claim ' de se Haeredibus suis prefat ' B. C. Haeredibus ipsius B. c. And likewise the Release Release how to be 21 Ed. 3. 33. and Warranty must be from the Heirs of one of the Cognizors for in a Fine from divers the Fee must be supposed to be in one of them only West Pres Tit. Fines § 30. Of what things it may be And a Concord cannot be of any other thing than is contained in the Writ of Covenant and not of a Foreign thing if it be not consequent Ibid. And if divers joyn in a Fine the Warranty The Warranty how to be made must be by them and the Heirs of one of them which is the Owner of the Land 44 E. 3. 1. And note That Warranties Divers sorts of Warranties be sometimes General That is against all Men some against all except certain Persons some against certain Persons only some against every Cognizor and his Heirs severally some against one of the Cognizors and his Heirs only some of all the Lands in the Fine some of all except part and some of part only certainly expressed West Tit. Fines § 147. He who acknowledgeth the Fine is called Cognizor and he to whom the Fine is levied is called the Cognizee and it is requisite that either the Cognizor or Cognizee be seized of the Lands in the Suit at the time of the levying The Partles must be seised at the time of levying thereof otherwise the Fine is void 41 Ed. 3. 14. 22 H. 6. 13. 3 H. 6. 27 H. 8. 4. 20. 37 H. 6. 34. 22 H. 6. 57. See West Exception Tit. eod unless it be by a Vouchee after he hath entred into the Warranty to the Demandant for he being Tenant in Law may confess the Action but a Fine by Vouchee levied to a Stranger is void 8 H. 4. 5 H. 7. 40. See West Ibid. All Persons Male and Female may be Cognizors Who may be Cognizors except Ideots Madmen Lunatiques Men having the Lethargy Blind Deaf or Dumb and these be hindred by nature Friers Nuns Monks who are dead in Law Exceptions of Persons dead in Law c. and Persons having Joynt-power as a Bishop without the Dean and Chapter a Dean without his Chapter a Parson Vicar Prebendary without their Ordinary a Mayor without his Commonalty Masters of Colledges without their Fellows and the single Members of every Corporation or Society and these be hindred by the Law West ibid. Cautions Of Husband without his Wife A Husband without his Wife ought not levy a Fine of her Lands for she and her Heirs may avoid it after his death 32 H. 8. cap. 28 12 E. 4. 12. 42 E. 3. 20. Care to be taken by Infants Infants i. e. all Persons under one and twenty Years ought to have a special care how they levy Fines for they must be reversed again during their Infancy otherwise they are good and the Court must see them at such reversal thereby to judge of their Age 50 E. 3. 5. 17 E. 3. 52. 78. Drunken and old Doters not capable It ought to be regarded that Drunken-men and old doting Persons be not Cognizors for their Fines are not reversable 17 E. 3. 5. 8. 17 Ass 17. Care to be taken by a Married Woman under Age. A Married Woman under Age ought to take heed that she levy not a Fine of her own Lands for she cannot reverse it during her Husbands Life neither after his Death if she be then at full Age 50 E. 3. 5. Ass pla 53. A married Woman of age Of Age. ought not to levy a Fine but with her right Husband 7 H. 4. 23. 42 E. 3. 20. And she must beware how she with her Husband With her Husband levy a Fine of her Joynture lest she thereby lose her Thirds if the Joynture were well setled before Marriage Dyer fol. 359. pla 49. If she without her Husband Without her Husband levy a Fine of her own Lands wherein she hath Fee-simple it will be a Bar against her and her Heirs unless her Husband avoid it by Entry or otherwise during her Life If he be Tenant by Curtesie Tenant by Courtesie he may reverse it after her Death 17 E. 3. 52. 78. 17 Ass 17. 7 H. 4. 23. If a Woman during her first Husbands Life marry a second Fine by Woman having two Husbands and with him and by his Name knowledge a Fine it shall not bind her 7 H. 4. 22 23. because she is misnamed With her right Husband And if she levy a Fine with her right Husband by a wrong Christian Name she is bound by Estoppel during her Life and the Tenant may plead that she by such a Name levied the Fine 1 Ass pla 11. Brook Fines 117. Of Cognizors Of the Estates of Cognizors who may levy Persons outlawed or waved in personal Actions may alien by Fine 9 H. 6. 20. 21 H. 7. 7. Persons attainted of Felony or Treason may levy by Fine but their Fines are void against the King and the Lord of whom the Lands be holden 9 H. 6. 20. 21 H. 7. 7. Tenants for Life may Tenant for Life may levy a Fine sur Graunt and Release of the Lands which he holdeth for Life to hold to the Cognizee for Life of the Tenant for Life 44 E. 3. 36. But if the Estate be larger it is a forfeiture of his Estate 4 H. 7. Noy 30. Forfeiture of Estates And so the Law is the same of such Fines by Tenant in Tail after possibility Tenant in Dower or by the Courtesie 39 E. 3. 16. But it seemeth to be no forfeiture of a Rent Rent no Forfeiture 2 H. 5. 7. Yet a particular Tenant Particular Tenant as in Dower by Courtesie or for Life cannot grant and surrender their Estate to the Owner of the Reversion or Remainder 17 E. 3. 62. Tenant in Common Tenant in Common or Joynt-Tenant may levy a Fine of his part 26 H. 8. 9. so a Copartner of his part Dyer 334. So may Tenant in Tail Tenant in Tail General or Special Also Tenant in Fee-simple
Example his eldest Son being possessed and the youngest Son entreth and is disseized and a Fine with Proclamation levied and after the eldest Son is deraign'd i. e. discharged of his Profession or Religion It seemeth he is bound to no time So if the Husband levy a Fine of his own Lands Dower whereof his Wife is Dowable and die and five years pass she is not barred of her Dower for before his Death she had only a Possibility and not any Title to Dower Plow fol. 373. a. And if Strangers have several future Rights by divers Titles growing at several times Several future Rights growing at several times they shall have several five years from the time that their several Titles first accru'd unto them Ibid. Strangers having neither present nor future Right And Strangers to Fines having neither present nor future Right to the Tenements in the Fine but unto some thing in or issuing out of the same as Rent Common Way Estovers or any such charge out of the Land seem not barrable at all For it seemeth that these Fines extend only to bind the Estate Title Right Claim Entry and Interest in and to the Land and no Profits to be taken out of the Lands nor to take power given to Executors or others to sell the Land Brook Tit. Fines 123. It is a good plea to a Fine Plea to a Fine that a Stranger was seized to say That J. S. was seized at the time of levying it and before without that That the Parties to the Fine had any thing therein at the time of the Fine levied 9 H. 4. 27. 3 H. 6.27 Or that the Parties to the Fine had nothing Plea that the Parties had nothing c. But that A. B. had whose Estate he hath 33 H. 6. 18. 26 H. 6. 9. 42 E. 3.20 4. H. 4.8 4 H. 7. cap. 24. If there be two of one name Two of one Name and the one levy a Fine of the Lands of the other the other may avoid it by pleading likewise the Owner of the Land may aviod the Fine levied by a Stranger in his name Fine how to be avoided because it is a matter of Record and there is no other remedy except an Action of Deceipt 34 H. 6. 19. But neither Parties to Fines Pleas not allowable nor their Heirs may plead that before at and since the levying the Fine the Plaintiff or their Heirs were always seized of the Lands in the Fine or of parcel thereof 27 E. 1. cap. 1. Tenant in Remainder in Fee Averment of him Remainder in Fee may aver the continuance of Possession against a Fine sur Cognizance de Droit come ceo c. levied by Tenant in Tail 12 E. 4. 12. because he is neither the Party nor his Heir The Reason and so may a Feme-Covert where her Husband sole levyeth the Fine Ibid. Issue in Tail may aver continuance of Possession Continuance of Possession against a Fine sur Cognizance de Droit tantum but not against a Fine sur Cognizance de Droit come ceo que il ad de son done because that Fine is executed and the other only Executory 12 E. 4. 15. 19. 11 H. 4. 85. And lastly Note that if the use of a Fine be not declared before nor after the Fine levied it shall be intended to the use of the Cognizor Use of a Fine not declared remains to the Cognizor and his Heirs See West Symb. Tit. Fines Of Recoveries Recoveries are either feigned That is Common or True that is actual by Judgment The end and effect of a Common Recovery is to discontinue and destroy Estates Remainders and Reversions and to bar the former Owners thereof West part 2. Symb. § 1. And it is used for assurances of Land where the Parties do agree that one shall bring an Action Real against the other that hath the Free-hold of those Lands as though he had good Right to the Lands and the other shall not make defence against it The form of it but shall alledge that he bought these Lands of A. B. who hath warranted them to him and prays that A. B. may be called to defend the Title and A. B. shall vouch to warranty H. H. who is called the common Vouchee Common Voucher unless it be in special Cases where some others are to be and must be vouched thereby to cut off Remainders which Vouchee shall appear as though he defended and pray that day for defence and after a day being given him by the Court maketh default and thereupon the Court is to give Judgment Judgment against him which Judgment cannot be for him to lose the Land because he hath it not but the Party to whom he sold it who called him to warrant it Therefore first the Demandant against whom there is no defence must have Judgment to have the Land against him that he sued who is called the Tenant and the Tenant is to have Judgment against the first Vouchee c. And by this Devise grounded upon the strict Principles of Law the first Tenant loseth the Land Tenant loseth his Land by Agreement and hath nothing for it but it is by his own Agreement and for the Assurance of him that buys the Land The Effects of Recovery The Recovery bars Intails and all Remainders and Reversions that should take place after Intails saving where the King is the Giver of the Estate Tail and keepeth the Reversion in himself It prevaileth not where the King has the Reversion and then the Heir in Tail nor the Remainder or Reversion is barr'd by such Recovery 23 H. 8. b. The Reason why the Heir c. is barred by such Recoveries The Reason why the Heirs of the Remainders and Reversions be thus barr'd is because in strict Law the Recompence adjudged against the Vouchee is to go in succession of Estate as the Land lost should have done and then it were not reason to allow the Heir liberty to keep the Land and also to have a Recompence in value therefore he loseth the Land 23 H. 8. and is to trust to the Recompence This sleight was first invented Recoveries when first invented when Intails fell out to be inconvenient as is before declared so that Men made no Conscience to cut them off if they could find Law for it and now by use these Recoveries are become common Assurances against Intails and against Remainders and Reversions and are the greatest Assurances that the Purchasors have for their Mony Are the greatest Assurances for Purchasors for a Fine will bar the Heirs in Tail but not the Remainders or Reversions but a common Recovery bars them all And this common Recovery is used The use when a Man is desirous to cut off an Estate Tail in Lands or Tenements to the end to sell give or bequeath it as himself seeth good There is also a
extendeth not by Bargain and Sale Fee-simple passeth tho' Heirs be omitted in the Deed The effect thereof and tho' there be no Livery and Seisin made by the Seller Note No Mannor Lands Tenements or other Hereditaments can pass alter or change from one Man to another whereby an Estate of Inheritance or Free-hold is made or taketh effect in any Person or Persons or any use thereof is made by reason only of any Bargain and Sale How Estates pass by Bargain and Sale therefore except the same be made by Writing indented sealed and inrolled in one of the Courts of Record at Westminster or within the same Court or County where the Tenements so bargained do lie Inrolment to be made how and when before the Custos Rotulorum and two Justices of Peace and the Clerk of the Peace or two of them whereof the Clerk of the Peace to be one and that within six Months after the date of such Writing indented See Stat. 27 H. 8. Noys Max. page 56 57. The Inrolment shall be intended the first day of the Term. When it shall be intended And shall have relation to the delivery of the Deed against all Strangers Noys Max. page 57. Hath relation to the delivery A Man by Deed Bargains and Sells his Land to one Two Bargains and Sales made of the same Lands to two several Persons who shall have it and before the Inrolment of the Deed sells it another and the last Deed is the first inroll'd and afterwards the first Deed is also inroll'd within the six Months the first Buyer shall have the Land 2 And. 161. Moor 40 41. 2 Inst 675. Hob. 165. Dy. 218. 4. Co. 71. If the Bargainee after the Bargain and before the Inrolment sell the Land to another and afterwards the Deed is duly inrolled the Sale by the Bargainee is good 2 Inst. 675. 2 Cr. 52. 1 Cro. 218.110 Rol. 424. 1 Inst 186. Nota The Buyer of a Reversion on Life or Lease for Years shall have the Rent upon the first Lease without Attornment or Inrolment 8 Co. 93. V. Plow 421. Jon. 206. 2 Inst 672. 6 Co. 68. 3 Cro. 166. Covenants to stand seized to Uses A Covenant to stand seized to uses Covenants to stand seized to uses how is in this sort A Man that hath a Wife and Children Brothers and Kinsfolks may by Writing under his Hand and Seal agree That for their or any of their Preferment he will stand seized of Land to their use either for Life in Tail or Fee-simple as he shall think fit or see cause Upon which Agreement in Writing there ariseth an Equity or Honesty that the Land shall go according to his Agreement Nature and Reason requiring and allowing these Provisions of which Equity and Honesty is the Use The Use how ariseth And the Use being created in this sort the Statute of 27 Hon. 8. before-mentioned conveyeth the Estate How the Estate setleth of the Land as the Use is appointed and so this Covenant to stand seized since the said Statute is a Conveyance of the Land But this differeth from a Bargain and Sale How Covenants to stand seized differ from Bargains and Sales in that this needeth no Inrolment as that doth neither is tied to be in Writing indented as the Bargain and Sale must And if the Party to whose use he agreeth to stand seized of the Land be not Wife Child Uncle or Cousin or one that he intendeth to marry then will no Use arise and so no Conveyance for although the Law allow these weighty Considerations of Marriage and Blood to raise Uses Considerations to raise Uses yet doth it not so of trifling Must not be trifling Considerations as of Old Acquaintance Schooling Service and the like 1 Co. 176. 2 Co. 15 76. Moor 504. con 3 Cro. 394. Moor 102. But where a Man maketh an Estate of his Land to others by Fine Feoffment or Recovery Upon a Fine Feoffment or Recovery a Man may limit the Use he may then appoint the Use to whom he listeth without respect of Kindred Marriage Mony or other Thing for in that case his own Will and Declaration guideth the Equity of the Estate Ibid. It is not so when he maketh no Estate but agreeth to stand seized nor in Bargain and Sale when he hath taken any thing Note The Statute 29 Car. 2. to prevent Frauds c. Enacts That all Declarations or Creations of Trusts of Lands or Hereditaments must be declared in Writing or by Will in Writing or else void except Trusts arising by Implication of Law which shall be of the same effect as if the Statute had not been Also all Grants and Assignments of Trusts must be in Writing signed by the Party granting or assigning by his last Will or Devise or else to be void If a Man Covenant Covenant to raise an Use with his Brother and two Strangers in consideration of the Love to his Wife and Children their Preferment and Living and to settle his Lands in his Name and Blood to stand seized of the Lands to the use of himself for Life and after his decease to the use of his Wife and after her decease to the use of the Covenantees and their Heirs upon Trust c. No Use ariseth to these other Covenantees but only to the Brother because they are Strangers to the Consideration No Use ariseth to them that are Strangers to the Consideration 1 Cro. 529. Jon. 418. Plow 307. Yelv. 51. In consideration that the Land shall remain in his Name c. And the Use is limited to the King No not to the King to preserve the Tail it will not raise an Use to the King 2 Co. 15. What this Use is and when first began and how united to the Possession you have read immediately before Gift or Grant The six Conveyances before treated are the Chief and of greatest moment and most largely to be treated the next Conveyance in order proposed is a Gift or Grant which differs from a Feoffment as is before explain'd A Grant A Grant what Concessio as Mr. West saith in his Symb. part 1. Lib. 2. § 290. signifieth permission sufferance leave licence yielding or giving over of a Thing but especially taken it signifieth a Gift in Writing of such Things as cannot aptly pass by Word only without Writing as Rents Reversions Services Advowsons in Gross Common in Gross Tithes c. or made by such Persons as cannot give but by Deed as the King and all Bodies Politick The generall signification as Mayors and Commonalities Deans Chapters c. which Differences be oftentimes neglected and then it is taken generally to signifie every Gift whatsoever made of any Thing by any Person whatsoever and he that granteth or giveth is term'd the Grantor or Donor and he to whom the Grant or Gift is made the Grantee or Donee An Instrument of Grant is a
Deed containing the Description of such a Gift or Grant Attornment necessary in Grants And note That Lands and Tenements and such things as naturally lie in Grant cannot be transferred from one to another by bare Grants of the Parties without the Attornment and Agreement of others the Nature and Effect whereof is after laid down Note A Grant must be certain Certainty Noys Max. p. 61. A Man cannot charge or grant that which he never had Ibid. p. 62. A Thing that cannot begin without a Deed may not be granted without a Deed Things beginning by Deed how they must be granted and every Thing that is not given by delivery of Hands must be passed by Deed Ibid. All Things that are incident Incident to others pass by the Grant of them that they are incident unto Ibid. A Man by his Grant cannot prejudice him that hath an elder Title No prejudice to an elder Title Ibid. 63. If no Estate be expressed in the Grant How the Estate shall be limited and though Livery and Seisin be made yet the Grantee hath but an Estate for Life Ibid. But if the words manifest the lawful Will of the Grantor the Estate shall be taken according to his intent Ibid. All Grants shall have a reasonable Construction The Construction of Grants and taken strongest against him that made them and most beneficial to him to whom they are made Ibid. There must be Attornment Attornment to Grants of Reversion or Rents otherwise nothing passeth except it be by matter of Record Ibid. Lease for Years The next of these Conveyances is a Lease for Years Lease for Years and he that letteth is called the Lessor and he that taketh by the Lease is termed Lessee Certainty thereof A Lease for Years must be for time certain and ought to express the Term and when it should begin and when it should end certainly And therefore a Lease for a Year and so from Year to Year during the Life of J. S. is for two Years Noys Max. p. 65. It may be made by Word or Writing as before Lease at will A Lease from Year to Year so long as both the Parties please after entry in any Year it is a Lease for that Year c. till warning be given to depart 14 H. 8. 16. Noy Ibid. A Lease beginning from henceforth How they shall commence shall be accounted from the day of the delivery Ibid. From the making From the making shall be taken inclusive from the day of the making or of the date exclusive Ibid. If the Habendum of a Lease be for Term of one and twenty Years without mentioning when it shall begin it shall then begin from the delivery From the delivery Co. Lit. fol. 46. Herns Law of Conveyances p. 15. 131. If Lands descend to the Heir before his Entry Lease made by Heir before Entry he may make a Lease thereof Noys Max. p. 65. Tenant for Term of Years may enter When the Tenant may enter when he will the death of the Lessor is no let and he may grant away his Term before it begin Noys Max. p. 30. But before he enter he cannot surrender When surrender nor have any Action of Trespass nor take a Release Ibid. He is bound to repair Repairs the Tenements And if Tenant for Life or Years Term forfeited granteth a greater Estate than he hath himself he doth forfeit his Term Ibid. View of Reparations and Distress Nota The Lessor may enter to see what Reparations or Wast there is and he may distrain for his Rent or have an Action of Debt Ibid. The nature of Leasts And note also That Leases for Life or Years are of three Natures some be good in Law some voidable by Entry and some void without some in futuro and some in praesenti of all which and oâ— the Dates Commencements Habendums continuance and determination of Leases you may find many Examples in a Treatise for that purposed collected called Landlords Law p. 137. c. See more of the before Ch. 1. Of a Release Release defined A Release is an Instrument whereby Estates Rights Titles Entries Actions and other Things be sometimes extinguished sometimes transferred sometimes abridged and sometimes inlarged West Symb. part 1. Lib. 2. § 466. A Release made after a Lease for Life or Years amounteth to a Feoffment It amounteth a Feoffment as if I let Land to a Man for Years or Life and after release to him all my Right in the Land Example to have and to hold to him and his Heirs hereby he hath a Fee-simple Co. Lit. f. 207. a. Finch L. 1. c. 5. pag. 67. Dyer 263. But if I Release to him all my Right which I have in the Land Words to be observed without using any Words in the Release then here he hath only an Estate for Life Ibid. And note That a Release is the giving or discharging a Right or Action which a Man hath or claimeth against another or out of or in his Lands Noys Max. pa. 74. And a Man may not release upon a Condition nor for time How a Release shall enure nor for part but either the Condition is void and the time is void and the Release shall enure to the Party to whom it is made for ever for the whole by way of Extinguishment Ibid. p. 57. But such Release by Deed indented is good Ibid. Words to be observed A Release to charge an Estate ought to have these words Heirs or words to shew what Estate he shall have Ibid. Void Release A Release made by him that at the time of the making thereof had no Right is void Ibid. page 74. Void Release And a Release made to him that at the time of the Release had nothing in the Lands is also void it behoveth him to have a Freehold or a Possession or Privity Ibid. p. 75. The common Course of passing Land by Lease and Release For which purpose it is now the course in passing Land by Lease and Release first to execute a Lease for a Year or the like Term to the intent and purpose that the Lâ—ssee may be in the actual possession of the Lands intended to be released and thereby and by force and vertue of the Statute 27 Hen. 8. for transferring Uses into Possession be enabled to take a Grant or Release of the Reversion and Inheritance of the said Land to the use of him and his Heirs A Release made to him that hath a Reversion Where it helpeth the Free-hold or a Remainder in Deed shall serve and help him that hath the Franktenement so shall a Release made to a Tenant for Life or a Tenant in Tail How it shall inure inure to him in the Reversion or Remainder if they shew it and so to Trespassors and Feoffors but not to the Disseisors Noys
viz. Know all Men by these Presents Or thus To all Christian People c. and may be made in the first Person or third Know all Men by these Presents First Person That I A. B. of c. Gent. To all Christian People to whom these Presents shall come A.B. of Third Person c. sendeth greeting Whereas c. Be it known to all People c. This present Writing witnesseth c. cum multis aliis any of which Forms may be in the first or third Person And each of these Deeds may consist of Grants or Discharges Grants which are constitutive Grants constitutive and creating what was not before as the first Grant of a Way of a Rent or of an Estate in Tail for Life or for Years with Warranty or without and are either absolute or conditional or conveying whereby Estates already or formerly made are conveyed to others Of Discharges Discharges which are remissory or liberatory releasing or discharging something in being as Releases Defeazances Acquittances c. And most of such Deeds and Instruments by which Lands pass as afore described have formal and orderly Parts viz. The parts of Deeds The Premisses 1. The Habendum 2. The Reddendum 3. The Warranty 4. The Covenants 5. The Conditions 6. The Conclusion 7. First the Premisses The Premisses what unto the Habendum wherein is included 1. Grantor 2. Grantee 3. Thing granted By apt and proper Names and Descriptions which are certain in themselves or which by Reference may be reduced to a certainty 4. Exceptions Words of Exceptions by these or the like words Excepted Excepting Besides Saving Save only c. which must be first of some particular out of a general secondly part of what is granted and not all thirdly that which may be severed from the thing granted and not an inseparable incident thereunto 5. A Recital of something antecedent Nota In many Deeds in the Premisses there may be no occasion of Exception or Recital some may require either and some both as in the making of a new Lease reciting the surrender of a former Lease and excepting the Bodies of Oak Trees or a Room out of a House or of Woods c. as the Case requires Nota Exceptions of part ought always to be of such things which the Grantor had in Possession at the time of the Grant Noy page 69. Wests Symb. Lib. 1. sect 48. To which may be properly added the date and consideration as Monies Goods Natural Affection similia The Premisses saith he is commonly all that precedeth the Habendum or Limitation of the Estate wherein are to be considered first the Person contracting next the Thing Matter or Fact whereof the Contract is to be made and then the Words with which the said Contract is to be described for the Persons are the very efficient as the Considerations are the motive Causes for which and by whose consent the Instruments are agreed upon and made Noys Max. page 133. In the Premisses are first the direct nomination as well of the Feoffor as of the Feoffee together with their Places of Residence Habitation or Dwelling and their Qualities Estates Additions or Conditions Secondly the certain expressment and setting down of the Lands conveyed Secondly the Habendum or consequence of Deeds whose Office is to set down 1. Grantee 2. Certainty of the Thing Estate and Life granted and to what use Wests Symb. Lib. 1. sect 52. The later part of Instruments and Consequence thereof is all that necessarily followeth the Premisses and that is the Habendum In which is limited and expressed what Estate and Property the Party passive shall have The Habendum what as Fee Tail c. and that is twofold namely the Limitation of the Estate and of the Use reciting withal the Thing granted by some sufficient general Name as Habendum Tenendum the said Mannor Messuage or Tenement aforesaid with the Appurtenances as the case requireth and as it is granted in the Premisses unto the said J. S. his Heirs and Assigns for ever to the use and behoof of the said J. S. his Heirs and Assigns for ever Noy 150. The Office of the Habendum is to name again the Feoffee and to limit the certainty of the Estate and it may and doth sometime qualifie the general Implication of the Estate which by construction and intendment of Law passeth in the Premisses and the Premisses may be inlarged by the Habendum but not abridged it is also required of the Habendum to include the Premisses Noy page 54. The Habendum Habendum void must not be repugnant to the Premisses if it be it is void and the Deed will take effect by the Premisses Ibid. That is the precedent Estate given by the Premisses shall stand and the Estate by the Habendum shall be void As where a Feoffment is made to one and his Heirs by the Premisses of the Deed Habendum to him and his Heirs during the Life of I. S. or if a Feoffment be made to one and his Heirs by the Premisses of the Deed Habendum to the Lessee for the Term of his Life Now these words of Limitation during the Life of I. S. or during the Lessees Life as aforesaid are void words because the Habendum is repugnant to the Premisses Landlord and Tenant page 139. 2 Co. Buckleys Case The Habendum sometimes doth qualifie and control the general Implication c. as for example A Lease to two Habendum to one for Life the Remainder to the other for Life this Limitation doth alter the general Implication of the Joynt-tenancy which would have been without the Habendum and the Habendum is not contrary to the Premisses for in the Premisses no certain Estate is passed See Buckleys Case in the second Book of Sir Edward Cooks Reports But Landlord and Tenant Landlord and Tenant fol. 140. citing this very Case to shew that the Habendum doth control and qualifie the general Implication saith And therefore the Habendum is void in that the Premisses do make them Joynt-tenants and the Habendum would sever the Joynture and make the one to have all during his Life and the other the whole after him and directs to Plow fol. 133. and Herns Law of Convey p. 2. But Quere Quaere of this And what hath been aforesaid may be sufficient to shew the Office of the Habendum To which also let us joyn the Tenendum Tenendum what which before the Statute of Quia emptores terrarum 18 Ed. 1. was usually in Feoffments expressed from the Feoffors and their Heirs and not of the Chief Lords of the Fee c. whereby there happened divers Inconveniencies to the Lords as the losing of their Escheats and Forfeitures c. Whereupon it was granted provided and enacted That every Free-Man for the future might sell his Lands or Tenements or part thereof at his Will so that the Feoffee should hold
such Lands or Tenements of the Chief Lord of the Fee by the same Services and Customs by which his Feoffor before held the same which Statute was made for the advantage of Lords And at this day where the Fee-simple passeth the Tenendum must be of the Chief Lords of the Fee c. for no Man since the said Statute could ever convey Lands in Fee to hold of himself except the King And note That where Lands c. are conveyed in Fee though there be no Tenendum at all mentioned yet the Feoffee shall hold the same in such manner as the Feoffor held before Quia fortis est Legis Operatio the Statute so determines Noy 151 152. Thirdly The Reddendum which reserves some new Thing to the Grantor c. and is usually made by the Words Yielding Paying Doing Reserving Finding c. And reserves what was not before Tenendum what or abridges the Tenure of what was before and it is term'd an adjunct proper to the Consequence of Instruments and is the Reserservation of a Rent Suit or Service if any be reserved Wests Symb. Lib. 1. sect 55. If a Rent be reserved it must be out of a Messuage and where a Distress may be taken and not out of a Rent Noy 69. And the Heir shall not have that which is reserved if it be not reserved to him by special words Noy 70. If a Man makes a Feoffment of Lands and reserves any part of the Profits thereof as the Grass or the Wood that Reservation is void Void Reservation because it is repugnant to the Feoffment Ibid. A Man by a Feoffment Release Confirmation or Fine may grant all his Right in the Land saving unto him his Rent-charge Ibid. Nota. Things that are given only by taking and using as Pasture for four Bullocks or two Loads of Wood cannot be reserved but by way of Indenture and then they shall take effect by way of Grant of the Grantor during his Life and no longer without special words Ibid. Fourthly Warranty Warranty what Warrantize it is a Verb used in the Law and as Littleton saith maketh the Warranty and is the cause of Warranty and no other Word in the Law But it may be understood only of an express Warranty in Deed and of a Warranty annexed to Lands for there are other Words which will extend and inure sufficiently to warrant Chattels c. and which will imply a Warranty Words implying Warranty in Law as Dedi c. Excambium c. Glanvil Lib. 3. c. 1. vel in Excambium or Escambium datione Lit. in his Chapter of Parceners teacheth that Partition implyeth a Warranty in Law The Feoffor by the Words of Dedi concessi shall be bound to Warranty during his own Life Noy 84. There are three manners of Warranties Viz. Warranty Lineal Warranty Collateral and Warranty which commences by Disseisin Vide Littleton Chap. Warranty The first is when one by Deed bindeth both himself and his Heirs to Warranty Lineal Warranty after his Death this Warranty descendeth to and upon his Heir The second is in a Transverse or overthwart Line so that the Party upon whom the Warranty descendeth Collateral Warranty cannot convey the Title which he hath in the Land from him that was the maker of the Warranty Warranty by Disseisin The third and last is where a Man unlawfully entreth upon the Free-hold of another thereof disseising him and conveyeth it with a Warranty Noy 3.83 Lineal Warranty barreth him that claimeth Fee and also Fee-tail with Assets in Fee Ibid. How it barreth Collateral Warranty is a Bar to both except in some Cases that be remedied by Statute as Warranty by the Tenant by the Courtesie except he hath enough by descent by the same Tenant Ibid. Warranty by Disseisin barreth not at all Warranty descendeth How Warranty descendeth always to the Heir at the Common Law viz. the eldest Son and followeth the Estate and if the Estate may be defeated the Warranty may also Noy 84. It barreth not the second Son in Gavelkind although all the Sons shall be vouched and not the eldest alone yet he alone shall be barred Ibid. Every Warranty which descends doth descend to him that is Heir to him which made the Warranty by the Common Law Noy 154. Cowels Interp. Title Warranty saith Nota. That under the word Haeredes are comprised all such as the first Warranters Lands come unto afterwards either by descent or otherwise ex causa lucrativa so that if a Man have twenty Children yet if he give his Land to a Stranger leaving his Children no Land that Stranger in this case is his Assignee and is contain'd under this word Heir so that if he commit Felony after such Warranty covenanted and forfeit his Lands to his Lord by Escheat the Lord is quasi haeres in this case and liable to the Warranty formerly passed To this may be joyned the word Defend Defendemus being used in Feoffments c. whereby as Bracton saith The Feoffor bindeth himself and his Heirs to defend c. Si quis velit servitutem ponere Rei datae contra formam donationis c. Fifthly The Covenants Covenants what containing the Terms of Granting and Holding being either real or personal and inherent or collateral must contain Things lawful and possible to be done A Covenant is the consent of two or more in one self thing to give or do somewhat West part 1. Lib. 1. sect 4. And there is a Covenant in Law and a Covenant in Deed or Covenant express and Covenant in Law Covenant in Law a Covenant in Law is covert or hid and to be implied as if the Lessor do demise c. to the Lessee for a certain Term the Law intendeth on the Lessees part that the Lessee shall during his whole Term quietly enjoy his Lease against all lawful Incumbrances Cowels Interp. Title Covenant Covenant in Deed. Covenant in Deed or Covenant express is manifest and that which is expresly agreed between the Parties and this is the Covenant we now intended which as aforesaid may be either real or personal Fitz. N.B. f. 145. A Covenant Real Covenant Real is whereby a Man tieth himself to pass a Thing real as Lands or Tenements as a Covenant to levy a Fine c. A Covenant meerly personal Covenant Personal is where a Man covenanteth by Deed with another to build him a House or any other thing or to serve him or to enfeoff him c. Cowels Interp. Tit. eod Covenant collateral Covenant Collateral is that which cometh in or is adhering of the side as Collateral Assurance is that which is made over and beside the Deed it self Note also Nota. A Bond for performance is termed a Collateral Assurance because it is external and without the essence of the Covenant Cowels Int. Tit. Covenant The words of Covenants are Words of Covenant
in Tail sell theâ— the Land to remain to another is avoid Remainder Ibid. In every Remainder five Thing are requisite Five Things to be observed 1. That it depend upon somâ— particular Estate Ibid. page 123. 2. That it pass out of thâ— Grantor Donor or Lessor at thâ— time of the creation of the particular Estate whereon it must depend Ibid. 3. That it vest during the particular Estate or at the instant time of the determination thereof Ibid. 4. That when a particular Estate is created there be a Remnant of an Estate left to the Donor to be given by way of Remainder Ibid. 5. That the Person or Body to whom the Remainder be limited be either capable at the time of Limitation thereof or else to be thereof capable during the particular Estate See Noys Max. page 124 125 126 127. where a Remainder taketh effect and it is void Of Reversion A Reversion Defined is the residue of an Estate that is left after some particular Estate granted out in the Grantor Example As if a Man grant Lands for Life without further granting the Reversion of the Fee-simple is in the Lessor Noys Max. p. 32. Also it commenceth after a Remainder May commence after Remainder Example As when he in Fee-simple leaseth for Life to one or in Tail he may appoint a Remainder after that Estate and a third in Fee-simple for if he doth not dispose of the Fee-simple by way of Remainder when he maketh the Gift for Life or in Tail then the Fee-simple resteth in himself as a Reversion See antea fol. 5. Nota. Note That after a Fee-simple he can limit no further Estate Ibid. Of Fee Defined The division of Fee in divers respects are many but for our present purpose it is sufficient to divide it into two sorts First Fee-simple or absolute Secondly Fee-Tail or Fee-Conditional Fee-simple Fee-simple is that whereof we are seized to us and our Heirs for ever Fee Tail Fee Tail is that whereof we are seized to us and our Heirs with Limitation that is the Heirs of our Body See Lit. ca. 2. Lib. 1. And note Two-fold That a Fee tail is either General or Special General General is where Land is given to a Man and the Heirs of his Body not naming upon what Woman to be begotten Therefore if he marry one or more Wives and have no Issue by them and again marryeth another by whom he hath Issue this Issue shall Inherit the Land upon such Grant Special Special is when it is certainly set down of whom the Issue shall come as when Lands are given to a Man and the Heirs of their two Bodies Lit. ut supra and this special Estate is either expressed or implied Expressed Expressed where it specially limited what Issue shall inherit Implied Implied as in Frank-marriage as where upon Special Tail either of the Parties die and have no Issue between them the surviving Party is improperly called a Tenant in Tail after possibility of Issue extinct See West Symb. part 1. Lib. 1. sect 40. Thus I have made good to you the Subject Matter promised in the Frontispiece which might have been much enlarged by proper Precedents but would much have shadowed that Light which hereby is intended Whereto for the Affinity of the Subject is added a brief Dicourse shewing by what ways Property in Goods and Chattels is or may be gotten CHAP. VI. Shewing the several ways whereby a Man may get Property in Goods or Chattels Property in Goods and Chattels is gotten ten ways viz. 1. By Gift 2. By Sale 3. By Stealing 4. By Waiving 5. By Straying 6. By Wreck of the Sea 7. By Forfeiture 8. By Executorship 9. By Administration 10. By Legacy Property by Gift The Property of Goods may pass by Gift Property by Gift either by Word or Writing If there be a general Gift made of all his Goods This is suspicious to be done of Fraud to deceive Creditors Fraudulent Deed of Gift And if a Man make a Deed of Gift being in Debt to prevent the taking of his Goods in Execution for his Debts this Deed of Gift is void Void against the Creditors as against those to whom he stood indebted but as against himself his Executors or Administrators or any other to whom he afterwards shall sell or convey them this Gift is good by that Deed Good against the Debtor 50 E. 3.6 13 El. 5. 27 El. 4. Property by Sale Property by Sale Bona fide good By Sale any Man may convey his own Goods to another and although he fear Executions for Debt yet he may sell them for Mony at any time before the Execution served so there be no reservation of Trust between the Parties as that of paying the Mony he may have the Goods again for that Trust in such a Case doth prove plainly a Fraud to prevent the Creditors from taking the Goods into Execution Note The Goods are liable to an Execution so soon as it is delivered to the Sheriff by a late Act. Property by Stealing c. If a Man steal away Goods or take them from me in jest Goods stollen or taken in jest Sold in a Market c. bars the Owner or borrow them of me or take them as a Trespassor and not as a Felon and carry them to a Fair or Market and there selleth them this Sale doth bar me of the Property of my Goods saving that if it be of a Horse 2 3 P. M. 7. he must be ridden once over in the open Market or Fair between the Hours of Ten and Sun setting and to be tolled in the Toll-Book and the Seller must bring one that will a vouch his Sale who is known to the Toll-Book Keeper 31 Eliz. 12. or else this Sale bindeth me not And for any Goods where the Sale in Market or Fair shall bar the true Owners being not the Sellers of their Property Sale to bar the Owner must be a Market where usually such Things were sold it must be a Sale in a Market or Fair where usually Things of that nature are sold So that the Buyer know not of the former Property and do pay Toll and enter it Plate must be sold at the Goldsmiths Stall and not in his inner Shop Noy Max. p 90. Examples of Sale If a Man steal a Horse and sell him in Smith-field as before the true Owner is barred by the Sale But if he sell the Horse in Cheap-side or Newgate Market or Westminster Market the true Owner is not barred because those Markets are usually for Herbs Fishes and such like and not for Horses So whereas by the Custom of London every Shop is a Market all days of the Week except Sundays and Holy-days yet if a piece of Plate or Chain of Gold or Pearl that is stollen or borrowed be sold in a Drapers Shop or in a
Scriveners or in any but a Goldsmiths as before this Sale bars not the true Owner and the like Yet by stealing of the Goods only the Thief getteth no such property but that the Owner may seize them Stealing gaineth no absolute Property But the Owner may seize c. again wheresoever he findeth them except they have been sold in a Market or Fair after they were stollen Outlary in an Action personal is a Forfeiture of Goods and Chattels See the Author of the Terms of the Law and that bona fide without Fraud But if the Thief be condemned of the Felony or outlawed therefore or outlawed in any personal Action or any way commit a Forfeiture to the Crown of his Goods then the true Owner is without remedy These Goods nevertheless if presently after they were stollen Fresh pursuit of the Felon Stanf. P l. Cor. Lib. 3. cap. 10 12. the true Owner maketh fresh pursuit after the Thief and Goods and take the Goods with the Thief he may take them again and if he make no fresh pursuit yet if he prosecute the Felon so far as Justice requireth that is Idem in his first Book cap. 27. saith that fresh Suit mâ—y continue for 7 years if he get him indicted and arraigned and found Guilty though he be not hanged or have Judgment of Death in all those Cases he shall have his Goods again by Writ of Restitution to the Party in whose custody they be 21 H. 8.11 Property by Waiving By waiving the property of Goods is thus gotten Property of Goods waived is in the King A Thief having stollen Goods and being pursued flying away and leaving the Goods in the flying this leaving is called Waiving and the property is in the King except the Lord of the Mannor by Custom or Charter have right to them but if that Felon be indicted or judged or sound Guilty or Outlawed at the Suit of the Owner of the Goods he shall have restitution of the Goods by Writ But if the Owner prosecute Restitution will be made as before Property by straying of Live Chattels Lord of the Mannor hath Estrays after a year and day By straying the property of stray Cattle is thus gotten when they come into other Mens Grounds straying away from the Owner Then the Parties or Lord in whose Grounds or Mannor they come causeth them to be seised and a With to be put about their Neck and to be cryed in three Markets adjoyning shewing the marks of the Cattle which done if the true Owner claim not within a Year and a Day then the property is in the Lord of the Mannor if he have Estrays by Custom or Charter or else in the King See Briton cap. 17. See Estrays in the Forest Anno 27 H. 8. cap. 7. Yet if a Man take Beasts as an Estray If the Lord keep the stray three quarters and then lose it he gains no Property 12 H. 8.10 Though another Stranger find them and keeps them three quarters of a Year and after that again stray from him and another happens on them the first Lord which kept them for three Quarters cannot take them again because that he had no property in them till he had kept them a Year and a Day and Proclamation passed for the possession of the second Seisor is good against him who hath no property 33 H. 8. b. Estrays 11. Property by Wreck By Wreck of the Sea the Property is thus gotten When a Ship laden is cast away on the Coast so as neither Man Dog or Cat escape alive out of the Ship to land Property by Wreck when a Ship sinketh and no living Creature escapeth then all those Goods be said to be wrecked Westm prim cap. 4. Anno 3 Ed. 1. and they belong to the Crown if they can be found except the Lord of the Soil adjoyning And the Wreck goes to the Crown unless the Lord of the Soil can prescribe can entitle himself by Custom which we call Prescription or by the Kings Charter But if any of these escape alive the Goods are the Owners still so he come within a Year and a Day to claim them If any Creature escape the Goods are the Owners by claiming duly Note Nota. That Fitzherbert in his Natura Brevium fol. 112. supposeth that if any of the Goods be cast upon the dry Land by any in the Ship it is no Wreck subject to the Prerogative for by this some of the Ship are presumed to come to land and still to have a Custody of the Goods Vide Sir Edward Coke Vol. 6. fol. 107. a. Property by Forfeiture By Forfeiture Goods and Chattels are thus gotten If the Owner be outlawed Goods forfeited to the Crown by Outlawry If he be indicted of Felony or Treason and be found Guilty of it or confess it or refuse to be tried by his Peers or by Jury or be attainted by Judgment or fly for Felony 34 H. 8. 4 H. 7. 11. 35 H. 8. 8. 5 E. 6. St. 185. 20 E. 4. 5. 40 E. 3. 42. c. although he be found not Guilty or suffer the Exigent to go forth against him although he be not outlawed or if he go beyond the Seas without Licence in such Cases all the Goods that he had at the time of the Judgment be forfeited to the Crown except some by Charter can claim them Unless claimed by Charter as is before in some measure treated of for in these Cases Prescription will not serve unless it be so ancient as it had allowance before Justices of Eyre in their Circuit or in the Kings Bench in ancient time Property by Executorship Property by Executorship where a Man makes a Will c. By Executorship Goods are gotten thus When a Man possessed of Goods makes his last Will and Testament in Writing or by Word and maketh one or more Executors thereof Note By a Devise of all Goods a Rent-Charge for Years will pass Note Moveables are Horses Cattle c. and Personal Chattels those Executors have by such Will and the Death of that Party all his Goods Chattels and Leases for Years Wardship of the Body and Lands of the Ward in Knight-Service but not in Soccage Leases for Years and Rent-Charges for Years Statutes Recognizances Bonds Lands in Execution Immoveables are Corn growing and Fruit on Trees and Chattels real Corn upon the Ground Gold Silver Plate Jewels Mony Debts Cattle and all other Goods and Chattels of the Testator if they be not otherwise devised before and the Executor may also give them away by Word or Deed but not by Will Personal which belong immediately to the Person of a Man as a Cow Horse c. Real not immediately to the Person or issuing out of some immoveable thing to a Person and if he do will omnia Bona Catalla sua all his own Goods and Chattels the Goods of the Testator pass