Issue and dies it seems this remainder shall not be Assets in the Heir in a Formedon or Debt for the remainder was never in the Mother for it commenced after her death But if a Rent Charge be granted to I. to commence after his death 't is otherwise for the Heir takes it by descent If Executors have a Villaine in right of their Testator and enter into Land purchased by him it shall be Assetts although they have a Fee as Land descended to the Heir shall be Assetts to a Chattle viz. to a Debt of a Stranger The Grantor of a Rent Charge in taile einfeoffes the Grantee of the Land who makes a gift in tail of the Land rendring so much of the Services as he pays over to the Lord Paramount it seems that these Services shall be Assetts in the Heir for they are particularly reserved for the Land Assignee IF a Feoffment be made with Warranty to the Feoffee his Heirs and Assigns if he makes a Feoffment over and the second Feoffee re-enfeoffes the first Feoffee he shall vouch for he may be Assignee of his Father being he does not claim as Heir And the Lord by Escheat or Mortmain or of a Villaine or who enters for a Consent to a Ravisher shall not be said Assignees and yet they shall Rebutt If Tenant in tail be with Warranty to him his Heirs and Assignes his Feoffee in Fee shall not be said Assignee for he hath no part of the Estate tail If Land be given to One and his Assignes for ever and it is ganted to him and his Assignes that they shall have twenty Load of Wood yearly for ever Tenant for life grants over his Estate and dies the Assignee shall not have the Wood because his Estate is now determined Attainder A. Dyes leaving two Daughters the one is attainted of Fellony a Lease is made the remainder to the right Heirs of A. the other shall not take the Daughter that was attainted being living for one is not Heir alone but if the Father dies seised of Land a moity shall escheat If the Mesne grants the Mesnalty upon condition that if the Grantee pays a certain sum of Money to the Grantor that he shall have Fee and before the Day the Grantor is attainted of Felony and executed yet the Grantee shall have Fee for the Condition is become impossible to be performed by the act of the Grantor But if a Jointenant makes a Lease for five yeares upon Condition that if the Lessee does such an Act he shall have it for twenty years and before the day the Lessor dies now the Condition is void by the Surviver If a man grants a Rent Charge to begin at a day to come and before the day the Grantor is attainted of Felony yet the charge is good If a Remainder be limited to the right Heirs of A. who hath a Daughter and dies who enters and after a Son is born and attainted yet the Remainder shall not be devested out of the Daughter The Son endowes his Wife Ex Assensu Patris the Son is attainted of Felony it seems that the Wife should not retain her Dower for 't is the Dower of the Son for she claimes it from the Son and if she brings a writ of Dower of it Ne unques accouple in loyall Matrimony is a good Plea and if there had been a disseisin of it a Collateral Warranty shall be no bar to the Wife for she pretends no Title to it but by the death of her Husband and then the Warranty descends before her Title for if it descends after her Title it shall be a good bar And if she after her Dower so assigned be attainted of Felony and after hath her Charter of pardon for her life and after the Husband dies she shall retain her Dower for her Interest in it commenced after her Pardon And yet by her Attainder she forfeited all her Inheritance Free hold and Chattles Real If an Attainted person be enfeoffed to the use of another the possession cannot vest in the other but must escheat but he which is Attainted may be an Atturny Grandfather Father and Son the Father is Attainted of Treason and dies and after the Grandfather dies seised of Land the Lord of whom the Land is holden shall have it by Escheat and not the King For the Father had it not at the time of Attainder And being that the Grandfather dyed without Heir the Land shall Escheat So it is if the Father be Attainted of Treason and the Grandfather dies leaving the Father The Issue in tail is Attainted of Felony and is pardoned and his Father dies and a Stranger having cause of Action against whom he shall bring his Action is the Question Some say that the Donor hath the Free-hold in Law as if Tenant in tail dies leaving his Wife Enseint Others say there is none against whom the Action may be brought as if Tenant for Life grants over his Estate to B. who dies now before Entry there is none against whom the Action may be brought Tenant in tail makes a Feoffment within Age and is Attainted of Felony his Issue shall not enter for he is disabled in blood to take advantage of the Infancy because the Infant had no Heir A. Covenants upon a Marriage to stand seised to the Vse of another and before the Marriage the Covenantee is Attainted of Felony yet upon the Marriage the Vse will rise as a Lease for life with a Condition of Accruer if the Lessor be Attainted yet the Estate shall enlarge Tenant is tail is disseised and releaseth to the Disseisor with Warranty and then is Attainted of Felony and hath a Pardon and dies this is a Discontinuance for if he had purchased Land after his Pardon it should descend to his Heir then the Warranty being in Esse at the time of his death there is no Impediment but that it should descend But if Tenant in tail who hath a Warranty annexed to his Estate be Attainted of Felony and Executed his Issue shall not Inherit the Voucher by reason of the Warranty although he hath the Land for the Warranty is out of the Statute de Donis c. which speaks of Lands and Tenements But some think that by the Equity of the Statute it is preserved as well as Charters 21 H. 6. 2. p. Markham 9 H. 6. 60. Cott. p. Charters Tenant in tail makes a Lease not warranted by the Statute and dies the Issue accepts the Rent and is Attainted of Treason if the King shall avoid it Quaere If the Grandfather be Tenant in tail and the Father is Attainted of Treason and Executed yet the Son shall Inherit as Heir to the Grandfather If A. commits Felony and the Lord grants his Seignory and after A. makes a Feoffment upon Condition and is Attainted and hath a Charter of Pardon and after re-enters for breach of the Condition and dies If an Occupant shall have the Land the Issue or
the Lord is the Question Atturnment TEnant in tail holds by Rent the Donor grants the services the Donee atturns nothing passes for the Rent cannot passe but as a Rent Service and the Atturnment shall not prejudice him for the Law will not have Land to be holden of two several persons Tenant for life grants a Rent in Fee and then he and the Reversioner join in a Feoffment by the delivery of the Deed the Tenant did Atturn If the Lord grants his Seignory by Fine and before Atturnment the Tenant makes a Feoffment of the Tenancy if the Feoffee Atturnes it is well enough and yet he is not compellable So if Tenant in tail Atturns 't is good and yet he was not compellable If a Lease be made for years and the Lessor makes a Lease to another for life to commence after the Term Atturnment will not make the second Lease good for the Freehold cannot passe out of any one who hath a greater Estate reserving to himself a Mesne Estate If a man makes a Lease of a Mannor which is ten pound in Demesnes and ten pounds in Service rendring twenty pound Rent if the Tenants do not Atturn he shall pay but ten pounds in Rent being he hath no remedy to compell them to Atturn Tenant for life of three Acres and the Reversion of them is granted and Tenant for life surrenders one Acre to the Grantee that countervails an Atturnment for that Acre only for it is but an Atturnment in Law but an Atturnment for one Acre by Parcell is good for all So if he had Atturned to one Grantee it had been good to both If one brings a Quid Juris clamat and pending his Writ he enters into one Acre he hath not abated his Writ for the Remnant If a Fem sole makes a Lease for life and then grants the Reversion to two one dies and she marries the other Tenant for life pays a penny to the Bayliffe of the Grantee in the name of Atturnment and dies the Husband enters and makes a Feoffment and dies she brings her Cui in Vita If a Seignory be assigned in Dower Ex assensu Patris there needs no Atturnment A Reversion is granted by Deed to a man and a Fem sole they marry the Tenant atturns the particular Estate life determines the Husband and Wife shall take it by moities for the Atturnment is grounded upon the Deed and reduces the Inheritance according to the course of Deed. If a Reversion be granted to on Infant and Atturnment is had at his full age yet when he is in possession he may disagree to the Estate being the grant was during his Infancy which is the Principal A Reversion is granted to one for life and before Atturnment it is granted to him in Fee the Tenant Atturns the Grantee may choose which Estate he will take But if a Reversion be granted to one and after to another and the Tenant comes to both and says I atturn unto you neither of them shall take for the incertainty If a Reversion be granted to one and his Heirs and after it is granted to him and his Successors and the Tenant Atturnes Quaere in what capacity he shall take If the Reversion of black Acre or white Acre be granted Quaere if Atturnment will make it good some think it is void for the incertainty A. makes a Lease for life and grants a Rent out of the Reversion if the Grantee Grants it over the Grantor ought to Atturn and not the Tenant for life for it hath no Relation to him for a Release made to him by the Grantee will not extinguish the Rent The Reversion of Tenant for life with the Rent is granted Tenant for life grants his Estate to another to hold of the Grantee this is an Atturnment for when he granted it to hold it of him the Tenant for life took notice of the Grant If an Atturnment be upon Condition which is broken yet the Reversion is not devested for he doth not claim the Reversion from him that atturned and an Atturnment cannot be upon Condition If the Reversion be granted to Tenant for life and another or a Signory be granted to the Tenant and another this Acceptance shall be a sufficient Atturnment But if there be two Tenants for years and the Reversion is granted to one of them Quaere if he takes but a moity without Atturnment of his Companion for the Jointure is severed by the Grant If a Fem Tenant for life takes Husband who atturns to the Grantee of the Reversion and after is devorced yet the Atturnment shall bind the wife and if a Feoffee upon condition atturns to the grant of a Seignory and the Feoffor enters for the condition broken yet the Atturnment stands good If a Mulier Atturn to the grant of a Signory though the Bastard dies seised so that the Mulier can never be Heir yet the Atturnment remaines good If the Reversion of Tenant in tail or for life the remainder for life is granted and the Issue in tail or he in Remainder Atturn having nothing but the possession in Law it is void But he that hath but a possession in Law may Atturn to the grant of a Seignory for none can Atturne but he that was Tenant at the time of the Grant The Lord grants the Seignory the Tenant is disseised and after Atturns that is good But if the Lord grants the Rent saving the Seignory and she is after disseised and Atturns that is void for it is now a Rent Seck in which there is no Attendency but a Charge of the Land If a man grants a Rent reserved upon a Lease for Life saving the Reversion that is a good Rent Seck if the Tenant Atturns Grandfather Father and Son Jointenants the Grandfather grants a Rent Charge in Fee to the Father upon condition who grants it to his Son and his Wife the Grandfather releases to the Father and Son the Son dies the Condition is broke the Grandfather claims the Rent the wife shal hold it discharg'd of the Condition if the possession of her Husband shall be an Atturnment in Law but it seems it is not for his Atturnment alone without the Atturnment of the Father who was a Jointenant is not sufficient for both ought to Atturn But if the Grandfather should have the Rent by the Condition then he shall be in of his own Grant and be both Grantor and Grantee But if the Father had died in the Life of the Son then that had been a good Atturnment in Law Avoid TEnant in tail makes a Lease for forty years and dies the Issue in tail marries and dies if she shall avoid the Lease by her Recovery in Dower Quaere If Tenant in tail makes a Lease for years to commence at Easter rendring a Rent and dies the Issue in tail enters and makes a Feoffment before Easter the Feoffee shall not Avoid the Lease for the Lease was not avoided by the Entry of
if she had taken an Estate for years or the Tenant had been her Ward and after she had married and died during that Estate he shall be Tenant by the Curtesie for the Freehold was not in suspence but the possession for years only Land is given to two Women Quam diu simul vixerint the remainder to the right Heirs of her who first dies one of them takes Husband hath Issue and dies the Husband shall not be Tenant by the Curtesie for she had not the sole possession Tenant by the Curtesie of a Seignory and a Tenancy Escheats and he makes a Feoffment with Warranty of it If that shall be a bar to the Issue without Assetts is the Question If one hath a Son which is a Bastard Eign and a Daughter Mulier Puisne and dies seised of a Rent the Daughter having a Husband and after the Bastard gets the Rent and thereof dies seised and that descends unto his Issue yet the Husband shall be Tenant by the Curtesie for the Rent was in Esse at the time of the Discent in the Daughter and she may choose whether or no she will admit her self out of possession Tenures IF there be Lord Mesne and Tenant the Tenant holds by four pence and the Mesne by twelve pence and the Tenant makes a Gift in tail saying nothing and the Reversion Escheats after that some think the Donee shall hold by twelve pence so if the Mesnalty descends to the Donor the Donee shall hold by twelve pence and if the Mesne had released to the Donor the Donee shall hold by twelve pence As if the Tenant had made a gift in tail the remainder in fee and the remainder had escheated the Donee shall hold by twelve pence for the first Services which he paid and the first Tenure is extinct by the unity of the remainder to the Seignory so it is cleer the Mesnalty is extinct viz. the four pence then the Donee shall hold by twelve pence and it is all one as if the Mesne had released to him in remainder and the reason in the principall case why the Tenure of the Donee shall be charged is because the Law makes the Tenure of the Donor in respect of the Mesnalty and when the Mesnalty is extinct the Tenure between the Donor and the Donee is extinct also and then by the same reason that the Donee shall take advantage if the Donor by release or Dissent had held by lesser Services he shall be prejudiced when he holds by greater Services And some think if the Wife of the Donee in tail of which the Law makes the Tenure be endowed and after the Estate is extinct she shall hold by Fealty only otherwise if the Tenure had been reserved by expresse words and if the Wife of the Tenant be endowed and after the reversion Escheats the Wife shall hold by Fealty only If the Tenant who holds by four pence makes a Gift in Frankmarriage and after the Donor dies without Heirs so that the reversion is held by twelve pence Quaere how the Donees shall hold whether by such services as the Donor held when the Gift was made or by such as the reversion is now held by If a Gift in Frankmarriage be made the Donees after the fourth degree shall hold as the Donor holds over If a Gift in tail be made rendring two pence during the life of the Father of the Donee during his life the Issue shall hold by the Reservation of the party and after his death by reservation of the Law If an Encroachment of Services be made upon the Husband the wife endow'd shall not be contributory and yet the Heir shall not avoid it A man hath issue two Daughters and holds Land of the Eldest by Suit and a Hawk and dies the Daughters assign a third part to the mother in Dower and after make Partition Tenant in Dower shall not be contributory for any part of the Services for the reversion remains in Parcenary between them for they cannot make partition thereof and then the whole Seignory is in suspence And yet if Land holden by a Hawk descend upon the Seignoresse and her sister and they make Partition the Seignoresse shall have the Hawk but there is no Suit for by the Statute of Marlebr cap. 9. the Eldest shall perform it and the other shall be contributory then if she be Seignoress she cannot do it her self But the reason in the principal case why the youngest shall not be charged is because the Seignory is in suspence it cannot be in Esse for another parcel The Tenancy being a Mannor is holden by twelve pence of another Mannor which is the Mesnalty and holden by six pence and the Mesne enfeoffs the Tenant of the Mannor which is the Mesnalty now he shall hold both the Mannors of the Lord by one Joint tenure of six pence and the Lord shall avow upon the Tenant because the two Mannors are holden of him by six pence so had it been if the Tenancy had escheated to the Mesnalty and the one Mannor is parcel of the other there the Tenancy hath not lost the name of a Mannor for the Land which was held of the Tenancy is not held of another Mannor which was the Mesnalty but as it was before 39 H. 6. 9. b. where one Mannor may be parcel of another If the Tenant who holds by one Hauk makes a Feofment of a Moity to a stranger or of the whole to a Mayor and Commonalty and A. now the Lord Paramount shall have two Hawks for they are severall Feofments for if livery had bin made to one in the name of both nothing passeth but to him who took the Livery and the Lord shall be compell'd to make several Avouries which proves that he shall have severall Hawks If the Tenant who holds by two severall Hawks makes a Gift in tail to two several persons reserving a Rent Habendum the one Moity to one and the other Moity to the other so that they have severall Estates in tail the Donor shall have two Hawks for the Law makes the Tenure and reservation but if the party had reserved it by special words As if a man makes a Lease Habendum one Moity to one the other Moity to the other reserving one Hawk or makes a Lease Pur auter vye to A. and to a Dean and Chapter reserving one Hawk and the Land goes two severall ways and he does reserve but one Hawk he shall not have more than he reserved If a Reversion at the beginning goes severall ways yet they shall not have more than is reserved if it were special reservation by the party Land is given to two and to the Heirs of their two bodies begotten the remainder to their right Heirs and the Land before was holden by one Hawk the Lord shall now have but one Hawk and yet they are not Jointenants of the Fee simple but there is no apporcionment by Moities but if a Lease be made
H. 6. 3. 21 H. 7. 41. But others think the contrary for the Husband cannot take it immediately from his Companion therefore for him it is void and good for the Wife As if a Feofment be made to a stranger and the Wife of the Feoffor The Husband is bound in a Statute and after he and his Wife levy a Fine of the Wife's Land to A the Husband dies The Statute shall not be extended during the Wife's life for nothing passed from the Husband but the estate which he had in right of his Wife And A shall have the same Advantage which the Heir of the Wife should have had Tenant in tail enfeoffs one Daughter within age and dies she is remitted but the other Daughter shall not take Advantage of it Agreement IF I disseise one to the use of my self and A who after Agrees to the disseisin we are joint-tenants 21 Ass 49. If one sister in tail enters upon the Discontinuee of her Father claiming to her and her sister and the Discontinuee ousts her and she recovers in an Assise the other sister shall have the moyty by her Agreement But if I disseise one to the use of A. after twenty pounds received by me of the profits or to the use of my self for life and after to his use in fee there he shall have nothing by his Agreement for I cannot apportion the wrong If I disseise my Tenant for life to the use of A he shall have but a Free-hold by his Agreement If the Issue in tail within age by covin commands A to disseise the Discontinuee of his Father A disseises him to the use of B for life and after to the use of his own right Heirs B agrees A dies B dies the Heir of A enters and enfeoffs the Issue he is remitted because of his minority An Agreement cannot be to parcel of an Estate Aid IF Coparceners make partition and one has the Seignority and a Tenancy escheats and she is impleaded of that she shall not have Aid of the other Coparcener for Aid cannot be granted but of Land descended If one Acre is given to the eldest Daughter in Frank-marriage and another in fee descends to the youngest if she shall have Aid is the question Alien IF a Reversion be granted to an Alien and after he is made a Denizen and then the Tenant atturns he shall not take to his own use A Lease for years is made to an Alien upon condition to have Fee he is indenized and hath License to purchase and then performs the Condition The King shall not have the Fee for it hath not a Relation as to the devesting of the Fee further than the performance although that for Charges and Incumbrances it hath a larger Relation If an Alien Disseisor be made a Denizen the King shall not have the Land if the Disseisee doth after release unto him but if an Alien had been the Feoffee of a Disseisor it had altered the case for it is a new purchase in one case and but an extinguishment of a right in the other and it seems that the Issue of such an Alien born within the Realm shall be in ward for Land descended to him on the part of the Mother during the life of the Alien if he be not Heir apparent And a man born in England cannot make himself heir in special tail to a Baron Fem whereof one is an Alien neither shall he have an Appeal for the death of such a Father or Mother Alien If Land be devised to an Alien and he is made a Denizen and after the Devisor dies there he shall take by the Will for all takes effect by the death of the Divisor But in the case above if when the Office is found the Lease should be adjudged in the King from the beginning then it takes away the Condition and then he could not acquire a fee by his performance If a man seised in fee marries an Alien and makes a Feofment and she is made a Denizen and the Husband dies she shall not recover her Dower Annuity IF an Annuity be granted for the life of I and the Grantee releaseth all Actions of Annuity to the Grantor it seems he shall not have an Action of Debt for the arrerages after the release and after the death of I. for when they were due he had no remedy If a Rent charge is granted out of Land in Fee the Heir of the Grantee shall have his election to bring his Writ of Annuity and so shall the Executor of the Grantee if the Grant were for years And if the Wife brings Dower the Heir shall not say that he will take it as an Annuity for it must be determined by the bringing of his Action and if she be once endowed the Heir shall not have an Annuity of the other two parts for his Writ ought to be grounded upon the Deed and that for all or for none for there can be no apporcionment of an Annuity or personal thing Appendant IF an Advowson be Appendant to a Mannor and the Advowson is granted to one for life and then the Grantee is enfeoffed of the Mannor cum pertinentiis yet the Free-hold of the Advowson is not Appendant But if the Grantee had regranted it to the Grantor it had been Appendant But if A. makes a Lease of his Mannor for life saving the Advowson and after grants the reversion of the Mannor una cum Advocatione the Advowson shall never be Appendant to the Mannor again Husband and Wife make a Feoffment of the Mannor of the Wife to which an Advowson is Appendant the Feoffee makes a Feofment of one Acre with the Advowson the Husband dies the Wife recontinues the Mannor she shall present without any recontinuance of the Acre for it was not appendant to the Acre for if a man makes a Feofment of an Acre parcel of a Mannor cum pentinentiis nothing of the Advowson which is appendant to the Mannor passes If one hath a Mannor and makes a Lease for life of all the Mannor except one Acre now the Fee of the Acre is divided from the Mannor during the Lease for life but after the determination of the Lease it shall be appendant again Apporcionment TWo Joint-tenants by Twelve-pence the one grants what belongs to him upon condition the Lord grants the services of one and Atturnment is had the Condition is broken the Grantor enters he shall hold by Twelve-pence also for by the Grant no Apporcionment is made and then by the Grant Twelve-pence passed and Twelve-pence remain If tenant for years enfeoffs the Lord of one Acre the Seignory shall be Apporcioned A Rent is granted in Fee out of Land in Borough-English and at Common Law the Grantee dies leaving two Sons the eldest shall have all for the rent being entire cannot be Apporcioned and the eldest being Heir shall have all If a Rent charge be granted in Fee and the Grantee dies and his Wife recovers
the Issue So if Baron Fem make a Lease to begin c. and before the time the Baron dies and the Fem makes a Feoffment the Feoffee shall not avoid it So if an Infant makes a Lease ut supra and before the time he being within age or at full age makes a Feoffment the Feoffee shall never avoid the Lease c. But many are of a contrary opinion for they say that an Infant or Issue in tail by their own or the Acts of their Ancestors shall never be prejudiced by any thing that is Executory for if he shall not avoid it by his possession before the commencement of the Term he hath no means to Avoid it c. before c. But it is cleer enough that if Tenant in tail dies after he hath discontinued and the Discontinue makes a Lease for yeares to begin ut supra and dies the Heir in tail being his Heir who enters and he enters and makes a Feoffment there the Lease is avoided because the Issue is remitted and hath another Estate than the Discontinuee had and not any privity of that Estate which is avoided If an Infant delivers a Writing as an Escrowle to be delivered as his Deed when he arrives at his full age and receives the Money of the Party to whose use the Deed was to be delivered yet he shall avoid the Deed. If Husband and Wife make a Lease or grant a Rent Charge in Fee out of the Wives Land and then they joyn in a Fine to A. he shall not avoid the Lease or Charge because they are executed but otherwise of things executory as a Statute c. before Execution Avowry LAnd is given to one Habendum a Moity to him and his Heirs and the other Moity to him and the Heirs of his body the Remainder to his Right Heirs the Land is holden by two pence the Donee dies without Issue and his brother enters severall Avowries must be made upon him one for one penny and another for the other But if Land be given the one Moity in tail the other in Fee there shall be but one Avowry for that inures as a joint Gift but in the first case it did inure severally at the Beginning If there be three Jointenants and one Releases to one of his Companions and he to whom the Release was made hath the part of the other by Survivor yet for a third part one Avowry shall be made upon him In the principal case the Fee simple was never severed if it had the Donee should hold each Moity by two pence a peice and the Avowry shall be made upon the collateral Heir for two pence in one Moity A. makes a Gift in tail of one Acre which he holds in Socage and of another which he holds in Chivalry saying nothing the Donor shall make severall Avowries although he hath but one Reversion for the Law makes the Avowry in respect of the tenure over and the severall Acres must severally escheat If a Disseisor makes a Lease for life and dies it seems the Lord is compellable to Avow upon the Heir of the Disseisor But if he had made a Gift in tail and the Donee dies and his Issue enters there he shall not Avow upon the Donor If one Parcener makes a Lease for life yet the Lord shall Avow upon them both but if one Jointenant makes a Lease for life the Lord must make severall Avowries upon them for the Jointure is severed If there be two Fem Parceners Mesnes and one marries the Tenant yet the Avowry of the Lord is not severed But if there had been two Jointenants it had been otherwise for by the Marriage the Moity of the Mesnalty is suspended and cannot be in Jointure with the other Moity which is not in Esse And if one holds a Mannor of another and makes a Feoffment of all except one Acre now the Fee of the Acre is disappendant from the Mannor and the Lord ought to make two severall Avowries Authority IF I devise that my Executors shall sel my Land and one sells one Moity and another the other this is not warranted by the Authority for it was to be jointly executed As a Letter of Atturny to two to make Livery it ought to be performed jointly But if the Land had been devised to them then such a Sale had been good for they had an Interest and the intent was performed If one makes two Atturnies Conjunctim or the King makes two Commissioners of Oyer Terminer if one dies the Authority of the other is determined 35 Ass p. 1. Two Jointenants make a Feoffment with a Letter of Atturny to deliver Seisin and the one delivers Seisin in person this is a Countermand of the whole Livery for the Authority was not severall for either of them but joint for both and therefore being countermanded for one it shall be void against the other Barr. IF the Plaintiffe be Barr'd in an Entry sur Disseisin yet he shall have a Cessavit if he had cause to have it at that time for it is another Title If the Heir brings a Formedon in Descender and is nonsuite Quaere if he shall enter because he had Title of Entry for a Condition broke If a Woman hath cause of Dower of one and the same Acre as Wife to A. and B. If she be barred of it as Wife to A. yet she shall have it as Wife to B. If Baron Fem make a Feoffment upon Condition if the Wife be barr'd in her Cui in vita yet she may enter for the Condition broken 27 E. 3. 55 56. p. 72. Bargaine Saile A. Bargains and Sells Land to B. and after they both grant a Rent Charge to C. and then the Deed is inrolled the Rent is gone for it is the grant of A. and the Inrolment hath relation to the Delivery which avoids the grant though it was the Confirmation of B. for he had nothing at that time The Issue in tail within age takes from the Discontinuee a Bargaine and Sale He shall not be remitted for he is in by reason of the Possession conveyed to the Vse and so he must have it in the same Degree as he had the Vse And so if he were within age at the time of the Bargain Sale and the other dies and after the Deed is Inrolled he shall not be Remitted If the Bishop makes a grant to the K. in fee confirm'd by the Dean and Chapter and the Deed of the Bishop is Inrolled and the other not it shall bind the Successor for it is but as an Assent and not a Confirmation Baron Fem. IF a Fem Lessee for life marries and she and her Husband make a Lease for life rendring a Rent and the Fem avowes for the Rent after the death of her Husband the Lessor may enter for by her Avowry she hath agreed by matter of Record and so it had been if she had entred for a Condition made by her
Charge before the fine levied there the Conisee should never have avoided it because they had been executed at the time of the levying the Fine If Husband and Wife accept of a Fine sur conusans de droit come ceo c. from B. of the Wives Land and they render it to him in tail yet the Reversion is in the Wife onely and the Husband hath nothing but by reason of the Coverture 40 Ass p. 4. A Fem covert is infeoffed the Husband being beyond Sea who upon his return disagrees yet the Freehold shall not be devested without an Entry and if the Husband dies before his Entry the Wife is Remitted and the Title of Entry which the Feoffor had is taken away If a Fem tenant for life marries the Husband makes a Feoffment the Lessor enters the Husband dies she cannot avoid the Forfeiture If a Fem covert be infeoffed and disseised by a Stranger the Husband disagrees to the first Estate and dies the Wife may enter and retain against the first Feoffor for the Disagreement was frivolous the Wife having only a Right Quod nota If a Fem Jointenant for years marries the survivor shall have all the Term. So if an Obligation be made to a Fem sole and another and she takes Husband and dies the survivor shall have all for 't is a Chose in action If a Fem hath a Term and marries and dies the Ordinary may commit Administration of it to a Stranger But the Law seems to contradict this for the marriage is a Gift in Law the Wife dying first If a Fem hath a Lease for years and marries the Villaine of the Lessor he may enter into the Land as a Perquisite The Husband is Tenant for life the Remainder to the Wife for life the Remainder to the Husband in tail how the Husband might discontinue the Estate in tail without barring of it was the Question The intention was this that the Husband and Wife should make a Lease to A. for the life of the Husband and Wife and the Survivor of them and that A. should grant his Estate to the Husband and then he should make a Feoffment and that would prove a Discontinuance Land is given to A. and a Fem sole and to the Heirs of the Body of the Woman begotten by A. They marry and have Issue the Husband aliens a Moity and dies the Issue dies without Issue If the Woman may enter into the Moity for the forfeiture being she could not enter at the time of the Alienation And also she is Tenant in tail after possibility c. in which case she hath but a Freehold in Remainder as she had before But otherwise if it had been an Estate in tail in remainder after the Estate vide 45 Ass 6. The Husband makes his Will and devises out of his Mannor of Dale a certain Rent to his Wife for her life in consideration that she should not have her Dower and dies The Wife recovers by Default in Dower the third part of the Land she shall have the whole Rent out of the two parts for the Recovery is upon a good Title And a Devise cannot be averr'd to be a Jointure within the Statute for at that time neither Land nor Rent were Devisable and therefore she was discovert when the Devise took effect and so both out of the words of the Act and also out of the Equity and then from that time the Title of the Land relates Paramount the Title to the whole Rent shall remain Vide Leases Atturnment Remitter Bastard IF the Bastard enters into the Mannor and recovers in a Cessavit being the Mulier dis-approves the Estate of the Bastard he shall not take benefit of the Recovery If the Bastard dies seis'd the Mulier within age some think the Right is gone no more than if the Mulier had been born after the Descent So if the Bastard enters and the Mulier dies his Wife enseint and before the birth the Bastard dies and his Issue enters the Mulier is not bound by that and others think the contrary If a Bastard dies seised of Land his Wife enseint and before the birth the Mulier enters the Issue of the Bastard when he is born shall be bound for by a dying seised onely without a discent to the Issue his right of Entry was not taken away For if a Disseisor dies without Heir the Disseisee may enter upon the Lord by Escheat because there was no Heir to make it a Descent So in this case If a Bastard Puisne enters into Land in Borough English and dies seised and his Issue enters the Mulier is bound But such a Bastard Puisne is intended where the first Wife by whom he had the Mulier dies and then he hath a Bastard and marries the same Woman For if a man marries the woman by whom he hath a Bastard and she dies and after he hath a Mulier by another Wife though they be not by the same Mother yet such a Bastard gaines the Inheritance to his Issue if he dies without Interruption By the same reason the Bastard Puisne If the Mulier ou ts the Bastard who recovers against him in an Assise where the Mulier pleads Ne unques seise c. and after dies that descent shall take away the Right of the Mulier for the possession which he had is defeated by the Recovery For he shall have an Assise of Mortdancester or Scire facias where such a Possession is removed But otherwise it had been if he had entered If a Bastard dies living the Father and leaves Issue his Issue shall be in the same case against the Mulier as the Father should have been if he dies seised without Interruption If the Heir of the Bastard be in by descent he shall gain the Land from the collaterall Heir or against the Lord by Escheat as well as against the Mulier Puisne If the Issue of the Bastard be the first that enters and dies seised his Issue shall retain against the Mulier If the Bastard dies and his Issue endowes the Wife of the Bastard Quaere if the Right of the Mulier be bound But if the Wife of a common Ancestor be endow'd the dissent of the Reversion shall be to the Mulier Quaere If a Remainder be directed to the Right Heirs of A. and he dies and the Remainder vests and after the right Heir is proved a Bastard or is made so by Act of Parliament yet he shall hold the Land for ever because he takes by purchase If there be Bastard eigne mulier puisne the Father makes a Lease for yeares and dies the yeares expire the Bastard enters and dies seised his Issue enters the Right of the Mulier is not bound for the possession of the Lessee for years was the possession of the Mulier and being that he was once seised so that he may have an Assise or Mortdancester his Right shall not be taken away If there be Bastard Eigne
Mulier Puisne and the Father dies seised of a Mannor the Bastard enters and gets the Services of all the Tenants and after one of the Tenants makes a Lease for life to the Bastard who dies seised and the Issue enters into the Mannor the Mulier may distrain the Tenant who made the Lease for life for all the Services due after the death of the Father for his Entry was not taken away as to the Services of that tenancy the Seignory of that tenancy being suspended in the estate for life and so no Descent but if there had been a Lease for yeares it had been otherwise Grandfather Father and Son the Father a Bastard the Grandfather seised in tail Quaere if the Son shall Inherit If there be Bastard Eigne Mulier Puisne and the Father is disseised and dies the Bastard enters upon the Disseisor and dies seised being there was no possession in Law descended from the Father but onely a naked right which vests in the Mulier therefore the Descent of the Bastard shall not take away the right of the Mulier But if the Father had died seised and a Stranger had abated upon whom the Bastard had entred and died seised there the Mulier shall be barr'd because the possession in Law descends Tamen Quaere for the entry of the Abater vests a right of Action in the Mulier which cannot be devested by the Entry of the Bastard If there be a Son Bastard Eigne and Daughter mulier Puisne the Father dies seised of a Rent the Daughter having a Husband the Bastard gets the Rent and thereof dies seised and that descends unto his Issue yet the Husband shall be Tenant by the Curtesy and the Mulier shall not be bound by it for the Rent was vested in the Daughter at the time of the Descent and being the Daughter may choose whether she wil admit her self out of possession or no therefore it is at her Election whether she will suffer any wrong to be done to her self or no. If a man dies seised having a Son a Bastard eigne and a Daughter a mulier puisne being married at that time the Bastard enters and dies seised his Issue enters and the Husband dies perhaps the Wife shall not be bound no more than an Infant in that case But if the Bastard had entered and after she had taken Husband c. it had been otherwise If a man hath a Daughter a Bastard eign and a Son a Mulier Puisne perhaps the Maxime does not hold for she had no colour by the Law If there be two Daughters Mulier and Bastard and they make Partition and the Bastard dies seised without Issue the Land shall not Escheat for if the Lord will say she was a Bastard and so it ought to Escheat the Mulier shall say that she her self is a Mulier and therefore it belongs intirely to her and if the Lord will say they made partition by which the Mulier had admitted her inheritable then the Mulier shall say by that I did admit her to be my Sister and so I am her Heir thus the Lord is estopped every way Lord Mesne and Tenant by equall Services the Tenant fore-judges the Mesne the Lord dies having a Bastard eigne Mulier puisne the Bastard hath Issue and dies seised after he had married with the Tenant the Wife dies the Mesne reverses the Fore-judger by error the question is if the Mulier shall have the Rent of the Seignory It seems the Maxime holds place as well of a Rent as of Land as it is holden in 14 E. 2. Bastard 26. And though the Rent was suspended by the Marriage yet the Maxime holds place as to the dying seised of a Rent without interruption for if a man hath a Rent in Fee and becomes Tenant by the curtesie of the Land and dies his Heir shall have a Mortdancester of the Rent which he could not have if his Ancestor did not die seised Vide Release Bona Felonum c. THe Goods of those who are attainted by Verdict or Outlawry or Confession are said Cattalla Felonum and if a man flies for Felony the Goods which he hath at that time are Bona waiviata and though he be Attainted after yet they are so still But if a man flies for Felony and after he is taken and acquitted there his Goods are forfeited as Catalla Fugitivorum but in all the cases the property must be in him that flees But by some Bona Waiviata are those which are stollen by a Felon and left v. 29. E. 3. 12 E. 4. 6. Borough English A Man dies without Issue seised of an Acre in Borough English having two Uncles the youngest who enters into the Acre by reason of the possession is voucht with the Eldest by reason of a Warranty entred into by the Nephew they lose the Tenant who voucht them having recovered dies leaving two Sons the eldest sues Execution and the youngest ou ts him vide 11 H. 7. 12. A. Charge GRandfather Father and Son the Father disseises the Grandfather and dies the Son grants a Rent Charge the Grandfather dies the Son shall not avoid his own Charge by the accession of this new Right If the Son disseises the Father and grants a Rent Charge and the Father grants a Rent Charge the Land shall be charged in Perpetuum but if the Son had been dead first it had been otherwise and his Son should have holden it discharged If a Stranger disseises the Father and grants a Rent Charge and infeoffs the Son and the Father dies the Son shall hold it discharged If the Father disseises the Grandfather and dies the Son enters and grants a Rent Charge the Grandfather dies he shall hold it discharged although he was of full age at the time of the Charge vide Sect. preced cont As if Tenant in tail infeoffs the Issue within age who grants a Rent Charge at full age after the death of Tenant in tail the Son shall hold it discharged for in both cases he is in of another estate If a Disseisor grants a Rent Charge and is disseised a Release is made to the second Disseisor the Charge remains If two Jointenants grant a Rent Charge Provided that it shall not charge the person of one of them some think he shall not charge the other Tenant in tail grants a Rent Charge in fee and makes a Lease for forty yeares rendring a Rent and dies the Issue accepts the Rent some think the Grantee shall have the Rent during the Lease and the life of the Issue though the Lessee surrenders Quaere for the Reversion is discharged The Father disseises the Son and grants a Rent Charge the Son endowes his Wife ex assensu patris in the same Land the Father and Son die the Wife enters as Tenant in Dower she shall hold it charged for she doth not claim from the possession in Law but from the possession charged If Tenant in tail grants a Rent Charge and
dies the Abator shall not hold it charged But by many the Rent in the first case is avoided for the freehold was discharged The Father disseises the Son and grantes a Rent Charge in fee and then makes a Lease for years the Son confirms the Lease the Father dies the Rent is extinct So if a man grants a Rent Charge in Fee and makes a Lease for years and grants a Reversion to the King or to the Grantee the Rent is gone If there be two Disseisors and the one grants a Rent Charge the Disseisee releaseth to the other and his heirs he shall hold it discharged for he claims meerly from the Disseisee But if one hath two Sons by divers venters and dies and before entry the Eldest grants a Rent Charge and dies without Issue the youngest hath the Land from his Father yet he shall hold it charged for the eldest hath such an estate as he might charge for if the eldest had died without Issue and the Land had gone to the Unkle and from the Unkle to the Father though the Father cannot be Heir to the Son yet being the Land was charged he shall hold it charged so in the other case Quaere for there is a Mesne descent Tenant for life the Remainder in Fee makes a gift in tail with a Remainder in Fee he in the first Remainder releases all his Right to the Donee in tail not saying to his Heirs and after he grants a Rent Charge to a Stranger out of the Remainder in Fee and dies the Donee dies without Issue the Heir of him in Remainder enters if he shall hold it charged For if he be remitted to his ancient Right then the Land is discharged against him And some think the Release could not give the Right in Fee which the Releasor had to the Releasee himself for then in a manner he might Release to himself and if the Release inures but as a Confirmation then without question the Heir shall be remitted and shall hold it discharged but if the Remainder had been appointed in tail to him who had it before in fee the Remainder over in fee then the Release ought to inure to the first Estate in tail and also to the Fee and then if the last fee be fortified the mesne Remainder is established and so the Release inures to himself The Son makes a Lease to the Father for life who makes a Lease for life to A. the Remainder in fee simple to the Son the Son grants a Rent Charge out of the Remainder and after Releases to A. and his Heirs all his Right in the Land the Father and A. die if his Issue shall hold it charged first it is cleer that the Right Fee is divested and a tortious Fee setled in the Son all at one Instant as if Tenant in tail makes a Lease for life the Inheritance of the estate in tail is devested and a fee simple vested all at one moment So if the Husband makes a Lease for life of the Wives Land the fee which the Husband had in right of his Wife is devested and a new fee in himself in his own right vested at the same time So in the first case then when it is granted out of the Reversion it is all one as if it had been granted out of the Remainder because a Reversion and Remainder agree in substance viz. Terra revertens then when the Son released unto A. and his Heirs all his Right that shall not inure as an Entry and Feoffment for A. was in by Title without Disseisin then it does not give to him the Remainder as if he had Released to him all his estate in the Land or as if he had released all his Right Habendum the Land in fee for there the fee passes but here he hath both the Right and the Estate and then a Release of the Right does not reach the Estate Others are of opinion that the Right in fee cannot drown in the Estate for life and in the Remainder it cannot merge for then in truth he releases to himself But if a Fem Disseisoress make a Lease for life and after marries with the Disseisee who Releases to the Tenant for life in Fee the Fee will Merge in auter droit for the benefit of the Estate in Fee in Reversion then if the Release do not perfect the Remainder if the Grant of the Rent which is an Assent to the Remainder does so inseperably unite the Remainder the Rent and the Right so that the Right shall be drowned in the Estate for the preservation of the Rent and some think it shall not for if a Disseisee takes an Estate in Fee from him who hath the Land by descent he agrees unto it and yet if he dies seised his Heir shall be remitted and so the Rent charge avoided But others think that in as much as by the grant of the Rent charge he hath agreed to the Remainder and so to the Livery he cannot now enter upon the Tenant for life and then the Release gives the Remainder and so the Land continues charged Claim IF a Reversion be granted upon Condition which is broke the Reversion shall be adjudged in the Lessor without Claim for the Grantee was privy to the Condition as if a Condition be annext to the Feofment that if the Feoffee doth not perform such an act that then he shall have it but for life if he does not perform it the Estate in Fee is presently vested in the Feoffor without Claim for he was privy to the Condition But the Lord shall not have a Reversion granted to his Villein or aliened in Mortmain or to his Mother who consents to a Ravisher without claim for there is no Privity But in these cases if the particulartenant hath an Action of Wast brought against him by the Lord or his Son perhaps the using of the Action will countervail a Claim And note that he ought to come upon the Land and make a Claim and he shall not be punish'd for it no more than the Lessor who comes upon the Land to see if Waste be committed for it is a Condition in Law annex'd to all the Cases The Heir makes a Feofment upon Condition the Mother recovers Dower the Condition is broke Quaere what course he must take to recover the Reversion for if the Mother recovers her Dower against an Abator the Heir shall not gain the Reversion by Claim And if Tenant for years be outed and the Disseisor dies seised and the Termor enters many are of opinion that the Disseisee shall not have the Fee by Claim If there be a Disseisor of twenty Acres and the Disseisee enters into one saying nothing he may have an Assise for the rest for the Possession shall not be devested by the construction of the Law without a particular Claim of the party Capacity LAnd is given by Deed to A. and a Dean his Successors and Livery is made to A. in the
cannot be made by Devise for Land was not then Devisable and the Wife was discovert when the Devise took effect If Land be Devised to an Alien and he is made a Denizen before the Devisor dies he shall take by the Devise for all takes effect after the death of the Devisor Disablement IF I grant an Annuity upon Condition that the Grantee shall promote me to a Benefice within seven years within which time I marry and my Wife dies within the Term yet the Grantee is discharged for I had once Disabled my self to accept of the Benefice and he had the Liberty to have tendered it at that time and I being then Disabled to receive it it countervails a Tender and Refusall So if I am bound to marry a woman by such a day and she marries another and the Husband dies before the day yet I am discharged of my Obligation But if he who was to be promoted or married had been a Stranger to the Obligations it had been otherwise If I am bound to enfeoffe the Obligee before a day and before the day he takes a Lease for yeares of the same Land which expire before the day yet I am discharged but it had bin otherwise if there had been no day limited for there it is not to be done before request A Feoffment is made to Re-infeoffe the Feoffee grants a Rent Charge the Grantee brings a Writ of Annuity and recovers if this be a Disablement to Re-infeoffe Quaere Disagreement A Lease is made to Baron Fem for the life of the Baron the Remainder to the Right Heirs of the Husband the Husband dies the Wife cannot Disagree for the Estate is determined But if the Estate had been made to them by a Disseisor she might disagree to save herself from Damages If Land be given to Baron Fem in Fee and the Baron makes a Feoffment and an Ancestor collaterall of the Wife Releases with Warranty and dies the Husband dies the Wife cannot disagree and claim her Dower for her Estate was bound and her Right determined by the Warranty If the Husband be remitted to an Estate the Wife may disagree and claim her Dower An Atturnment is good although he that Atturned doth after disagree Vide Dower Baron Fem. Discharge IF the Disseisee enters upon the Heir of the Disseisor end grants a Rent Charge and dies the Issue shall hold it discharged for he is remitted to his ancient Right So if the Heir of the Disseisee enters upon the Disseisor and grants a Rent Charge and the Disseisee dies But if the Son disseises the Father and A. and the Father dies he shall hold it charged for he is not remitted If the Father disseiseth the Grandfather and grants a Rent Charge and dies the Son shall hold it discharged for he claims from the Grandfather Lord Mesne and Tenant the Tenant aliens in Mortmain the Lord enters and grants a Rent Charge and after his Title is come viz. the year is past and the Mesne hath not entred the Lord shall hold it discharged and his Issue also for he shall not be remitted for a Title as he shall be for a Right accrued If the Father disseises the Grandfather and dies and the Son enters and grants a Rent Charge and the Grandfather dies he shall hold it discharged although he was of full age at the time of the Grant As if Tenant in tail infeoffes his Issue within Age who grants a Rent Charge at full age and then the Tenant in tail dies the Issue shall hold it discharged If the Disseisor grants a Rent Charge to the Disseisee who grants it over and after enters he shall hold it discharged So if Tenant Pur auter vye grants a Rent Charge and the Reversion descends upon him and cesty que vye dies he shall hold it discharged If a Stranger disseises the Father and grants a Rent Charge and infeoffes the Son and the Father dies he shall hold it discharged Land is given to A. and B. for their lives the Remainder to the Right Heirs of him who survives B. grants a Rent Charge in Fee A. dies if the Heir of B. shall hold it discharged Quaere If it had been given to them Quam diu simul vixerint and to the Heirs of him who first dies the Heir shall not take the Land by descent but by purchase A. having a Wife makes a Feoffment upon Condition and dies the Wife is endowed by the Feoffee and then grants her Estate to the Feoffee reserving a Rent by Indenture the Heir enters for the Condition broken he shall hold it discharged of the Rent Note her Title to the Land was Paramount to the Condition but Puisne to the Rent If a Dean hath a Rent Charge in Fee and the Tenant aliens the Land to the Dean in Fee the Lord enters for the Alienation in Mortmaine he shall hold it discharged of the Rent for when he entred for the Alienation in Mortmain he did not avoid the Livery but affirm'd it by his Entry So if the Dean before the Entry had entred into a Statute the Lord should have holden it discharged of the Execution But if Tenant for life aliens in Fee to him that hath a Rent Charge issuing out of the Land and the Lessor enters for the forfeiture he shall not hold it discharged for the Lessor hath the same Feesimple he had before the making the Lease and has his own Estate and not the Estate which the Lessee gave to the Feoffee Many think the contrary in the first case for his Estate in the Land was always defeasable Vide Charge Rent Execution Discent A Disseisor infeoffes his Wives Father who dies so that the Land descends upon the Wife if the Disseisee may enter Quaere The Husband surrenders the Freehold of his Wife to him in Reversion who dies seised if the Wife may enter after the death of her Husband for there seems to be a discent If a Gift in tail or Lease for life be made rendring a Rent with a Re-entry for default of payment the Lessor hath cause of Entry and the Estate in tail expire or Lessee for life dies after a Disseisin or Descent yet the Lessor c. may enter for the Land was recontinuable at all times And if Tenant for years with a Condition be outed after the term and a Discent cast the Lessor shall enter for the Condition broken Lessee for years the Remainder in tail he in Remainder grants in Fee the Lessee atturns the years expire the Grantee enters and dies seised Tenant in tail dies the Issue may enter for the Grant was but for the life of Tenant in tail and then he died not seised in Fee and if the dying seised had been after the death of Tenant in tail If it will take away the Entry Quaere But if the Issue of the Issue of the Grantee had entred and died seised the Entry had been taken away If Tenant in tail
disseise the Tenant and then the Disseisor Ceaseth and the Lord Recovers he shall retain against the Disseisee for the procurement does not make him a Disseisor 50 E. 3. 2. v. Lit. in Remit cont If the Issue in tail procure one to Disseise the Disseisor of his Father whose Heir is in by descent against whom the Heir recovers the Issue shall retain it If the Disseisor makes a Feoffment and marries with the Disseisee he may enter in his Wives Right After a Dissent if the possession comes to the Disseisor the Disseisee may enter for the Action remains to him after the descent If one Disseises Tenant for life to the use of him in Reversion and he agrees if he shall have the new Fee or the ancient for now he is a Disseisor ab initio If he had been a Disseisor immediately he had gained but a Freehold by Tort but now he Agrees to that which another hath and that is a Fee If one Jointenant makes a Lease for years of his part a Stranger enters claiming the Moity of the other who waives the possession that is a Disseisin to him though the Termer continues in possession for they were Tenants in Common Otherwise if the Termor had waived the possession and the other had continued in for the Reversioner cannot be out of possession when his joint companion held in Divorce A Reversion is granted to Baron Fem and to a single man and Woman in Fee the single persons marry and the Tenant Atturns then the single man and woman are divorced the Baron Fem shall have but a third part Land is given to I. and A. his Wife and to another Baron Fem in Fee they are disseised and I. releases to the Disseisor and then I. and A. are divorced for cause which hath relation A. and the Baron Fem bring an Assise leaving out I. Some think it is maintainable for when I. and A. are divorced yet the other Baron Fem shall hold the Moity to them for being the purchase took effect and vested by the Livery and at that time the Baron Fem not being divorced took a Moity which remains still A Lease for life is made to a Fem sole she marries the Lessor grants the Reversion the Husband atturns and after they are divorced yet the Wife cannot avoid the Atturnment A woman is divorced upon a surmise made by the Husband of a Precontract upon her part the Wife being seised of Land makes her Will and devises it away an Appeal then depending by the Husband to defeat the Divorce Quaere if the Appeal be not void being sued by the Baron for he is not the party grieved for he was the first Agent in the Divorce and therefore it ought to have ben sued by the Wife and so the Devise stands good 2 R. 2. Quare Impedit 143. Dy. 140. p. 46. 4 H. 7. Peckams case 10 H. 7. 12. 24 H. 8. Ravishment 11. 39. E. 3. 33. A man marries an Infidel the Wife commits Adultery and then becomes a Proselite to the Christian Religion Quaere if this Adultery committed before her Conversion be a sufficient cause whereupon the Husband may sue a Divorce Dower LAnd is given to Husband and Wife in speciall tail reserving a Rent the Wife of the Donor brings Dower against the Heir of the Husband for the third part of the Rent A. having a Daughter dies his Wife enseint with a Son the Daughter disclaims the Lord Recovers in right of the Disclaimer a Son is born the Lord dies and the Land descends to his Son the Wife of the Lord brings Dower against him A. grants a Rent Charge in Fee to commence after the death of the Grantee who dies the Wife of the Grantee shall not be endowed and yet the Son takes as Heir But it was not in the Father and it shall not be Assetts in the Heir But if the Rent had been granted upon Condition that if the Grantee or his Heirs die their Issue within age that the Rent should cease until the Issue comes of full age if the Grantee dies his Issue within age his Wife shall be endowed but the Execution shall cease until the heir be of full age As if the Tenant be in Ward to the Lord and the Lord marries and dies possest of the Ward his Wife shall be endowed of the Seignory which was in suspence for the Freehold was in the Husband so in the last case before 24 E. 3. the Wife of the Father brought a Writ of Dower against the Heir within age and Recovered but cessat Executio until c. If the Heir doth Improve the Land the Wife shall recover her Dower of it as it is But if it be by building or other collaterall Improvement 't is otherwise Quaere if the Heir suffers the Houses to decay upon the Land if the Wife shall be endowed according to the value it was in the possession of her Husband or as it is now and shall be allow'd in Damages The Son of the Disseisor endows his Wife Ex assensu patris the Disseisee releaseth to the Disseisor if the Dower shall be avoided The Tenant Ceases for two years and after marries the Lord Recovers in a Cessavit the Tenant dies his wife shall be endowed against the Lord. If a Rent be reserved upon a Lease for life the Wife shall not have dower for he hath not a Fee neither shall the Heir have an Assize of Mortdancestor If a Disseisor grants a Rent Charge and is disseised and a Release is made to the second Disseisor the Wife shall not be endowed for her Dower is Executory If a Woman hath cause to have Dower of one and the same Acre as Wife to A. and B. If she be barr'd as Wife to A. yet she shall have it as Wife to B. If a Lease be made to Baron Fem for the life of the Husband the Remainder to the Heirs of the Husband who dies the wife shall not have Dower for she cannot disagree to an Estate determined If Land be given to Baron Fem in Fee the Husband makes a Feoffment an Ancestor collateral of the Wife releases with Warranty and dies the Husband dies the Wife cannot disagree and claim her Dower where the Estate was bound and her Right determined by the Warranty If a Villaine purchase an Estate in tail the Lord enters and dies his Wife shall not have Dower for being the Law gave unto him his Entry the Law will not give more to him than the Villein might lawfully give which was an Estate for his own life If Tenant in tail the Reversion in the King be disseised the Disseisor dies his Wife shall not recover her Dower no more than if a Discontinuance takes away an Entry If there be two Tenants in Common and one hath a Wife and the Reversion is granted to both of them and he which hath the Wife dies the Wife shall be endowed of a third
pence and makes a Feofment of one the Lord grants the Rent reserving the Fealty the Tenant Atturns the Grantee releaseth all his Right in the Land to the Tenant yet he shall have one penny If the Tenant deviseth that the Lord shall make a Feoffment of the Tenancy which is done yet the Seignory is not extinct no more than the Rent Charge shall be where the Grantee makes Livery as Atturny to the Tenant of the Land because he doth it in auter droit A Rent Charge is granted upon Condition the Grantor makes a Feofment the Condition is broke the Rent is arrear if the Condition be extinct by the Feoffment for the Grantor cannot have it in the same manner c. But if the Condition had been that the Rent shall cease upon the Non performance there the Feoffee shall take advantage of it for the Rent doth ipso facto extinguish as a Lease for years upon Condition to be void The Lord having the Ward of the Mesne enters into the Tenancy for Mortmain the Seignory and Mesnalty are extinct If the Tenant infeoffes the Lord to the use of A. or if the Lord infeoffs the Tenant of the Mannor to the use of A. if the Seignory be extinct Note the case Vide Condition Release Estovers Arrerages Feoffment TEnant for life and he in the Reversion join in a Feoffment of all their Land and Tenements lying in the Town where the Land lies that is in Lease and make a Letter of Atturny to make Livery this is a Grant of the Estate for life and also of the Reversion But if they had made a Feoffment of the Land of the Lessee only then it will be the Feofment of Tenant for life and the Confirmation of him in Remainder If a man makes a Feoffment to a Stranger and to his own Wife and makes Livery to the Stranger in the name of both it will be good to the Stranger and void as to the Wife Tenant for life infeoffs the Wife of him in Reversion with a Letter of Atturny to the Lessor to deliver seisin who does it Quaere if he be seised in his own or his Wives Right For he is remitted by the Forfeiture If Tenant in tail infeoffs the Wife of the Donor that is a Discontinuance A Feoffment is made by one Deed in Fee and by another in tail to the same person and Livery made according to both Deeds it shall inure by Moities For otherwise the Livery cannot inure upon each deed For if he should have all the Land in tail the Remainder in Fee then the Livery shall have only operation upon the Estate tail and the other shall be but a Confirmation and then it shall not inure upon both the Deeds but upon one And if Livery had been made only upon the Deed in tail after the delivery of both deeds there should be Tenant in tail the remainder in fee. If one Jointenant enfeoffs his Companion and a stranger the stranger takes all If Tenant in tail enfeoffs the donor he doth not give him the Fee Vide Extinguishment Fem Covert A Man conveyes Land to a Fem sole upon Condition that she payes a sum of money by a day she marries and the money is not paid whereby her Estate is defeated this will binde her after her Husbands death But if the Fem be Tenant for life and the Husband makes a Feofment and the Lessor enters yet the Wife shall have the land after the death of her Husband for it is but a Condition in Law but if the Condition be by Statute as in a Cessavit or Wast where there is a Recovery there it will bind her after the death of her Husband But if the Condition be given by Statute and no Recovery as in Mortmain then the Wife shall not be bound Some Conditions in Law shall bind the Wife if the Husband breaks them as a Condition annext to the Grant of a Parke an Office or a Liberty If a Fem Covert delivers an Obligation bearing date two years after and at the end of the two years her Husband is dead she shall not be Estopt to shew that the Delivery was before the Date Fem Sole IF a Fem sole Tenant in a Praecipe marries pending the Writ all the rest of the pleadings and process shall be against the Wife only If a Fem sole at Mich makes a Writing dated at Christmas and before Christmas she marries and the Husband dies she may say that at the time of the date she was a Fem Covert and he shall not aver the delivery before Fine TEnant in tail levies a fine and takes back an Estate in Fee upon Condition and dies the Heir enters and is remitted the Proclamations passe if that shall take away the Remitter and if the Condition remain If the Wife levy a fine as a Fem sole and the Husband enters all the Inheritance is revoked Forfeiture LEssee for years is received by the Statute of Glocester a Stranger recovers against him in a Praecipe and confirms the Estate of the Lessee for life the Lessor avoids the Recovery by Error and Enters upon the Lessee some think he cannot A. makes a Lease for life and dies leaving his Wife enseint with a Son the Tenant makes a Feoffment the Son is born if he shall enter for the Forfeiture Quaere A Lease is made upon Condition that if the Lessee commits Wast that his Estate shall cease if a Stranger commits wast it is no Forfeiture of his Lease If Tenant for life infeoffs the Wife of the Lessor with a Letter of Atturney to the Lessor to deliver seisin which is done accordingly Quaere if this be a Forfeiture some think it is A Lease is made to E. and F. for their lives F. grants to a stranger for the life of E. that is a Forfeiture of his Estate for he had not an Estate for the life of E. but in respect of the Jointure and an Estate for the life of E. doth not passe from the Lessor in the Moity but upon Condition in Law that the Jointure remains and now he hath given it for the Life of E. absolutely But if both of them had made a Lease for the life of E. that had not been a Forfeiture Causa patet If a Lease for life be made upon Condition that the Lessee shall infeoffe A. which is done the Lessor may enter for breach of the Condition in Law scilicet the Forfeiture Tenant for life grants over his Estate upon Condition after Title of Entry the Grantee makes a Feoffment the Lessor enters for the Forfeiture some think the Lessor may enter upon him for the Title of Entry for the Forfeiture is by the Common Law which shall not destroy another Title comming in respect of the Estate Land is given to a man and a Fem sole and to the Woman in speciall tail they marry and have Issue the Husband aliens a moity and dies the Issue dies without Issue if the Wife
am Lessee for the life of C. and I grant my Estate to D. upon Condition that if D. dies living C. that it shall be lawfull for me to re-enter Quaere if this Condition be sufficient for me to enter upon an Occupant If a man commits Felony and the Lord grants his Seignory and after the man makes a Feofment upon Condition and is Attainted and obtains his pardon and after Re-enters for breach of the Condition and dies if the Occupant shall have the Land or the Lord or the Issue is the Question A. makes a Feoffment to B. Habendum to him so long as Pauls Steeple shall stand B. dies without Heir Quaere if the Lord may enter by Escheat or an Occupant shall have it Outlawrie IF a man grants to another one of his Horses until the Grantee hath made Election there is no property vested in him neither shall he forfeit it by Outlawry Parceners Partition A. seised of two Acres hath a Son and a Daughter by one venter and a Son by another grants a Rent out of one Acre to the Son who dies the Father dies the Daughters make Partition the Land charged is allotted to the youngest she shall hold it charged with all to the Eldest 34 Ass p. 15. A. hath Issue two Daughters and holds Land of the Eldest by Suite and an Hawke and dies the Daughters assign a third part to the Mother in Dower and then makes Partition Tenant in Dower shall not be contributory for any part of the Services for the Reversion remains in Parcenary between them two for they cannot make Partition thereof and then the whole Seignory is in suspence and also the youngest Daughter shall be discharged of the Tenure and yet if Land holden by an Hauke discend upon the Seignoresse and her Sister and they make Partition the Seignoresse shall have the Hauk but there no suite for by the Stat. of Marlbridge ca. 9. the Eldest ought to do it and the youngest is to be contributory but she being Seignoresse cannot do it to her self ergo c. But the Reason in the principall case why the youngest shall be discharged is because the Seignory is in suspence for parcel and it cannot be in esse for the rest But if a Tenant hath two Daughters and the Lord seises the youngest within age he shall distrain the other for the Moity of the Seignory and the Act of Law shall not prejudice him Quaere for the Seisure is his own Act. If one Sister be Seignoress to whom the Tenancy is descended she shall not have the Rent nor other Charge before Partition but if she had the tythes she should have had them after severance from the nine years before Partition for they lye in Prendre and she takes them as Parson Before Partition one Parcener makes a Lease of an Acre to I. S. for twenty years and they after make Partition so that that Acre is allotted to her it seems she shall out the Lessee for the Partition hath relation from the death of the Ancestor and yet at this time she had full power to make a Lease of the Moity of it So it seems she shall avoid a Rent Charge granted by her Sister If the Husband makes a Lease of an Acre which is after assigned to his Wife by a Recovery in Dower upon a Title which she had at that time she shall avoid the Lease c. for all Quaere in both cases If one Parcener recovers pro rata against her Companion she shall avoid the Charge made by her in the Land recovered as an Exchanger shall do Land recovered in value after Partition by one Parcener shall be rateable A. seised of two Acres hath two Daughters and grants a Rent Charge out of one Acre to the Eldest and dies they make Partition the Eldest hath the Land Charged and the other being impleaded Recovers against the Eldest pro rata she shall hold the Land Recovered in value pro rata with the portion of the Rent If Parceners make Partition and one aliens in Fee a Stranger by a Title Paramount enters upon the other she shall not occupy the Land with the Feoffee for the privity is dissolved for she cannot recover pro rata If A. be seised of one Acre in tail and of another in Fee hath two Daughters they make Partition the younger hath the Acre in tail the Lord of whom the Acre in Fee is holden shall take notice of this Partition it seems otherwise for a Donor of an Acre in tail for he shall not be bound by that Partition unduly made no more than the Issue in tail shall be but the parties that made the Partition being of full age are concluded but if one Acre in tail be allotted to one and the other Acre in tail to the other the Donor is concluded If Partition be of Land in tail and a Rent is granted for equality of Partition that Rent shall be in tail 2 H. 7. 5. But if there be Parceners of two Acres one in tail and the other in Fee and she which hath the Acre in Fee grants the Rent to the other for Equality that Rent shall be but in tail but if that Rent had been granted to her which had the Fee it shall be in Fee for if she dies without Issue her Heir shall have it so long as the other hath Issue of her body for til that ceases the Partition stands but if there be four Acres three in Fee and one in tail and she which hath the third Acre grants a Rent for equality that shall be a Fee Quia sequitur magis principale Three Parceners in tail make a Feoffment with Warranty the Eldest first and the youngest after dies without Issue the second hath Issue and dies the Issue brings a Formedon she shall recover a Moity of the part of the eldest and a moity of the part of the youngest and no more for the Warranty of the Eldest was collateral to the second for the part of the second for the other part she could not make her self Heir to her that made the Warranty but yet for the part of the Eldest the Warranty is Lineall to the second and youngest Daughter for they might Inherit as Heir to her and for the part of the youngest as to her self and her Heirs for their third part the Warranty of the Eldest is collateral for the youngest or her Heirs could not make themselves Heirs of that third part to the Eldest who made the Warranty so that the Warranty of the Eldest shall enure as aforesaid Then as to the youngest who died last her Warranty as to the second Sisters part is collaterall and to her Issue for they cannot make themselves Heirs to her who made the Warranty c. But as to a Moity of the Eldest 't is Lineall and as to the other Moity collateral for by possibility the youngest and the second might have had the part of the Eldest by
the Tenancy upon the Lord before Entry but if the Tenant is attainted of Felony he shall not have the possession in fact or in Law before Entry If one Jointenant leases his part for years a stranger enters claiming the moity of the other who waives the possession it seems it is a Disseisin to him though the Termor continues in for they are Tenants in common and though the possession of the Lessee be the possession of him in Reversion so his Companion but è contra if the Termor had waived the possession and the other continues in it seems that he in Reversion cannot be out of possession for his Joint Companion held it Two Jointenants in Fee of a Rent Charge a Stranger takes it to the use of I. one releaseth to the Pernor the other to the Tenant if by the last release he shall be said in possession ab initio then the first release to the Pernor is void for the possession of one is the possession of both Possessio fratris A. Makes a Lease for life and dies having a Son and a Daughter by one venter and a Son by another the Eldest Son grants the Reversion in tail the Tenant atturns and he dies the Grantee in tail dies without Issue Tenant for life dies it seems the Daughter shall have the Land not the youngest Son The Disseisee dies having a Son and a Daughter by one venter and a Son by another the Son after the descent enters upon the Heir of the Disseisor and dies without Issue the Daughter shall not have the Land for his possession was tortious if the Father dies seised and the Eldest Son makes a Lease for life the mother recovers Dower against the Lessee the Son dies the Daughter shall have the Reversion and not the Son But if Tenant for life dies after the death of the Son and during the life of the Tenant in Dower Quaere who shall have the Reversion the Son or Daughter If A. makes a Lease for life and dies his Eldest Son disseises Tenant for life and dies Tenant for life dies the Son shall have the Land from the Daughter which is put in the book of Ass and the principall case is the Eldest Son endows his Mother and dies if the youngest Son or the collaterall Heir of the Eldest shall have the Land The Father dies seised of two Acres the Son enters into one saying nothing if that shall be a sufficient possession of the other Acre to make the Sister to be Heir Quaere Some think it shall not If a Disseisor or Feoffor on Condition enter into one Acre saying nothing there no more shall be gained by that Entry but in the principall case if the Acres had descended one from the Father and another from the Mother then the Entry into one is an Entry but into that only So if it had been on a Title for several Conditions 9 H. 7. 25. So the Entry of the Bastard into one Acre shall devest no more than that for the Mulier had a possession in Law Quaere If a man makes a Lease for years and dies this possession in Law of the Reversion is sufficient to make the sister Heir Quare Impedit IN a Quare Impedit against the Patron and Incumbent it is no plea for the Incumbent to say that he hath been in six months upon the presentation of the Patron for none can plead Plenalty but he who by such plea may gain the Patronage and against whom a Writ of Right of Advowson is maintainable Quod vide in 16 E. 4. 11. But in a Quare Impedit against the Ordinary and Incumbent the Incumbent shall say that he hath been in six months upon the Collation of the Bishop by reason of Laps because no Patronage is gained by that so note the Diversity 2 R. 2. Encumbent 4. 18 E. 3. Quare Imp. 4 8. 13 H. 8. 14. 14 H. 8. 31. 39 E. 3. 30. Recognizance vide Statute Record IF a Record in the C. B. be pleaded in any other Court of the King where it is requisite to be produced it must be exemplified under the Great Seal of England and the Seal of the Court is not sufficient but if he pleads it in C. B. there if he shews the Exemplification under the Seal of the Court it sufficeth for in the one case it is Teste meipso and in the other Teste the Chief Justice Relation IF a Feoffment be made of a Mannor when Atturnment is had the services passe ab initio If a Lease be made for life the Remainder to the King and Livery is made and after the Deed is inrolled now the Remainder passes to the King as a Remainder ab initio If Land be given to Baron Fem in Fee he dies and the Wife waives the possession and recovers her Dower against the Heir she shall recover Damages for by her refusall the Husband shall be said to die seised Keylway 104. p. 14. If a man who hath a Villein delivers an Escrowl of Enfranchisement to be delivered to his Villein seven years after and before the end of the seven years he dies and the Deed is after delivered that will be a good Enfranchisement by relation Vide Barg Sale Release LOrd Mesne and Tenant the Tenant holds in Socage and the Mesne in Chivalry the Tenant makes a Gift in Frankmarriage the Mesne releaseth to the Donor the four degrees passe the Donor seiseth the Ward of the Issue and enters into the Land and he brings an Action of trespass some think it is maintainable If Lessee for years makes a Feoffment to two a Release to one shall inure to both If Tenant in tail makes a Lease for life the Remainder for life and releaseth to him in Remainder and his Heirs if the first Tenant for life dies in the life of Tenant in tail it is a Discontinuance The Tenant holds ten Acres by ten pence and makes a Feoffment of one the Lord grants the Rent reserving the Fealty the Tenant Atturns the Grantee releaseth all his Right in the Land to the Tenant yet he shall have one penny for the Feoffment severed the Seignory and by the Grant two Rents passed and but one is extinct by the Release viz. the Rent of Nine pence Two Disseisors make a Gift in tail to hold in Chivalry the Disseisee releaseth to one the Donee dies some think this Release will inure to both Two Women disseise another and make a Feofment to their Father who dies so that the Land discends to them the Disseisee Releaseth to one it shall inure to both for betwixt themselves they are in by Title If a Disseisor dies seised having two Daughters Bastards and the Disseisee releaseth to one of them that shall inure to both A. makes a Feoffment to two upon Condition which is broken the Feoffor releaseth to one it shall operate to both for they are not in by wrong and a Release where it countervails an Entry
Action for all the Land If Tenant for life commits Wast and grants over his Estate in Wast brought against him he may plead a Release in the Land and yet he hath nothing in the Land A Conusor of a Statute Merchant is in Execution and his Land also the Conusee releaseth to him all his debts afterwards the Goaler lets him have his Liberty it seems that the Execution is discharged by the Release for the Debt is in Esse until the profits satisfie it or else the Execution could not remain as the Heir is in Ward until he be capable to perform his Services but if the Seignory be released to the Tenant he is out of Ward for body and Land If he in Reversion of a Seignory releaseth to his Grantee for years and to the Tenant of the Land and to his Heirs Quaere how it shall inure but if it had been to them two generally then the Estate for years and all the Seignory had been extinct for though it inlarges his Estate for life and no more yet without those words His Heirs all the Reversion is extinct and consequently the Estate for yeares Quod non negatur 8 H. 6. 24. But if it had been of a Rent Charge and the Release had been to them the Grantee shall have it all for life and the other the Fee and so it shall inure to both Tenant for life and he in Reversion grant a Rent Charge the Grantee releaseth all his Right to the Reversion if the Rent be extinct Some think not for their Estates being severall so are their grants and then a Release to the Reversioner will not extinguish a Rent issuing out of the possession And if it shall be taken to be the Grant of Tenant for life and the Confirmation of him in reversion yet such a Release will not extinguish it for though he purchaseth the reversion yet he shall have the Rent during the life of Tenant for life and if it were severall grants a Release to Tenant for life will not extinguish a Rent issuing out of the reversion for to this Charge the Tenant need not atturn The surviving Parcener may release to the Husband of the other being Tenant by the Curtesie And if one Parcener hath twenty Daughters and dies the other may release her whole part to either of them But if Jointenants be of twenty Acres and one makes a Feoffment of all his part in eighteen perhaps the other can release his right but in two Acres But if Husband and Wife and a stranger are Jointenants the stranger may release all his right to the wife only Tenant for life the remainder in Fee makes a gift in tail the remainder in Fee he in the first remainder releaseth all his right to the Donee not saying and to his Heirs and then grants a Rent Charge to a stranger out of the Remainder in Fee and dies the Donee dies without Issue the Heir of him in remainder enters if he shall hold it charged Some think the release doth not give the right in Fee which the Releasor had to the Releasee for then in a manner he doth release to himself but if the remainder had been in tail to him that had the remainder in Fee then the release had inured to the first Estate in tail and to the Fee and then if the last Fee be fortified the Mesne remainder is established and so the release inures to himself But as to the other point which may be moved If the remainder be good to him that had the remainder before being it is out of him and in him at one and the same instant it is good enough If one be disseised to the use of A. the Disseisee releaseth to the Disseisor yet A. may agree to the Disseisin for a release doth not take away a Title any more than it doth a Condition or a Rent Charge granted by him or if he covenants to stand seised to an Vse Executory upon marriage such an use cannot be taken away by such a release But if there had been two Disseisors to the use of A. and the Disseisee had released to one of them that will take away all the Title Causa patet So if Tenant for life releaseth to his Disseisor that doth not restore the Reversion but if he had released to one of the Disseisors it had been otherwise Land is holden of the Mannor of Dale by Fealty and twenty shillings the Lord makes a Lease of the Mannor for years rendring forty shillings with Atturnment after the Lessor releaseth to the Tenant all his Right if the Rent of forty shillings shall be apporcioned by the Release the Tenant is discharged of twenty shillings as well against the Lessee as the Lessor for the Tenant holds it of the Lord Paramount so he does not hold it of the Lessee for he cannot hold the same Land of two severall Lords and the Rent of forty shillings is as well payable for the services as for the demesnes although he cannot distrain c. as in the case of Sheep 21 H. 7. 6. If Feoffee upon Condition makes a Lease for life a Release of the Condition to the Tenant for life will extend to the Feoffee as it will do of a Right or Rent If there be Feoffee upon Condition of two Acres and the Feoffor releaseth the Condition in one Acre if it be collaterall it remains in the other as of a Warranty annext to two Acres a Release in one yet it remains in the other for the Condition is severall as the Right is But if the Condition had been made to two or by two a Release to one or by one extinguisheth all as it shall do a Warranty Tenant for life of a Seignory purchaseth the Tenancy pur auter vye if the Lord releaseth to him and his Heirs all his Right in the Tenancy some think it shall inure by way of Extinguishment But if he releases to him and his Heirs all his Right in the Seignory that inures as an Enlargement of the Seignory So the Mesne being a Fem marries the Tenant the Lord releaseth to the Fem and her Heirs all his Right in the Seignory that inures to extinguish the Seignory only and not the Mesnalty But if he had released to the Husband all his Right in the Seignory or Tenancy the Seignory and Mesnalty are extinct But a Release to the wife of all his right in the Tenancy had been void But if the Lord had released all his Right in the Seignory to Husband and Wife Quaere but some think it inures to extinguish the Seignory and not the Tenancy Two Jointenants in Fee of a Rent Charge a Stranger receives it to the use of A. one releaseth to the Pernor and the other to the Tenant If by the last release he shall be said in possession ab initio the first Release to the Pernor was void for the possession of one is the possession of both If two Disseisors grant a Rent
him And if the Heir of the Disseisee enters upon the Disseisor and grants a Rent Charge and the Disseisee dies because a new Right is come to him he is remitted and the Grantor shall hold it discharged But if the Son disseises the Father and grants a Rent Charge and the Land descend to him the Son shall hold it charged for he is not remitted for the Right descended to him from the same person to whom he did the wrong and he shall be disabled to claim a right from him whom he disseised But in the other case he claims the Right from another If the Father disseiseth the Grandfather and dies after he hath granted a Rent Charge and the Grandfather dies the Son shall hold it discharged for he claims from the Grandfather Quaere for the Entry of the Grandfather was taken away and then when the Right of one who cannot enter descends the Tenant is remitted Quaere but if there be Lord Mesne and Tenant and the Tenant aliens in Mortmain the Lord Paramount enters and grants a Rent Charge and after his Title is come viz. the year past and the Mesne hath not entered the Lord shall hold it discharged and his Issue too as it seems for he shall not be remitted for a Title as he shall for a Right accrued but it seems he may bar him upon whom he enters if he brings an Assize and that by his Title Grandfather Father and Son the Father disseises the Grandfather and dies the Son endows the Wife of the Father the Grandfather dies the Son may enter upon the Tenant in Dower for he hath a new right descended from the Grandfather and the Entry of the Grandfather was Congeable upon the Tenant in Dower so shall the entry of his Heir But if the Son had granted a Rent charge and the Granfather had died he should hold it charged and should not be remitted for the entry was not lawfull upon him and when a right descends from the Grandfather he shall not be remitted If the Issue in tail procure one to disseise the Heir in by descent against whom the Heir recovers and dies the Issue shall retain but if he himself had recovered against the Disseisor upon a Title in Being to him he shall not be remitted Quaere If his Father disseisee dies and he recovers against the Heir or the Disseisor by a Formedon If he shall be remitted for the wrong was made to the Estate tail at that time And if one hath title to a Formedon and he procures one to out the Tenant to the intent that he may recover against him and the Stranger outs him and a Stranger recovers by a puisne title to the procurer and the other recovers against him by a Formedon he is remitted If two Jointenants have title of Action where their Entry is taken away and the one procures a Stranger ut supra against whom they two recover and he who was party dies the other is remitted to all but if he which did not procure had first died the other had not been remitted but to a moity Quaere If the issue in tail within age by Covin commands A. to disseise the Discontinuee of his Father A. disseises him to the use of B. for life and after to the use of his own right Heirs B. agrees A. dies B. dies the Heir of A. enters and enfeoffs the Issue he is remitted because he is now within age Tenant in tail levies a Fine and takes back an Estate in see upon condition and dies the Heir enters and is remitted and after the Proclamations pass if that takes away the Remitter and if the Condition remains Quaere If two Jointenants are disseised by the Father of one of them who dies seised and his Son enters he is remitted to all the land and his Companion may enter with him And it is not like where two are disseised and a descent cast during the non-age of of one and he enters and is remitted to a moity his Companion shall not enter for the advantage is given him more in respect of his person than of the land Neither is it like where Tenant in Tail enfeoffs one daughter and dies she being within age she is remitted and her Companion shall not have advantage of it for the right was not in them before Nor where they have a joint Title of Formedon by descent and the land descends to one only his Companion peradventure shall not take advantage of it for the Estate tale was taken away but here it was not But if the Grandfather had disseised c. and the land had descended to the Father and from the Father to him it will be otherwise for his Companion shall not have advantage for the Entry was taken away before If the Discontinuee makes a Lease to the Issue in tail and another with Livery to the other and after grants the Reversion to the Issue and the other dies so that the Freehold is cast upon the Issue without his folly yet he shall not be remitted for he assented to the Reversion upon the Lease for life A Disseisor dies without Heir his Wife enseint the Lord enters a Son is born the Disseisee enters upon the Lord If the Entry had been before the birth it had been lawfull and he had been remitted and the birth after would not have avoided the Remitter As if the Discontinuee makes a gift in tail to one the Remainder to the Issue in tail if the first Donee dies without Issue his Wife Priviment enseint now the Issue in the first intail is remitted and though the issue of the second Donee be after born the Remitter continues but here the Entry is not till after the birth of the Son for if a Stranger had abated the Disseisor having Issue or if after abatement a Son had been born the Disseisee could not enter A Disseisee releaseth all Actions to the Disseisor and dies and after the Disseisor dies and his Heir enters and dies and the Land discends to the Heir of the Disseisee if he be remitted Some say there can be no Remitter where there is a cause of Action so that without his folly he hath not any body against whom he may bring his Action but though he hath no Action here yet he hath not lost it by the Law but by his own Act and the Right remains which is the cause of his remitter and in many cases a Right shall remain without an Action as if there be Tenant for life of a Seignory and a Tenancy Escheats and a Stranger intrudes Tenant for life dies before Entry he in Reversion cannot have any Action but may enter as upon the Disseisor of his Tenant but if he dies and his Heir be in by descent there he cannot enter and yet he hath a Right and shall be remitted upon a Discent If a Fem Tenant in generall tail marries an Infant who aliens and dies and his Heir enters upon the
Feoffee the Wife re-enters she is not remitted Tenant for life the remainder in Fee makes a gift in tail the remainder in Fee he which had the first remainder releaseth all his Right to the Donee without saying to his Heirs and dies the Donee dies without Issue the Heir of him in Remainder enters if he be remitted If the Disseisee takes an Estate in Fee from him who had the Land by descent he agrees unto it and yet if he dies seised his Heir shall be remitted The Issue in tail within age having a Title to bring a Formedon accepts from the Discontinuee a Bargain and sale inrolled he shall not be remitted for he is in by the Statute Tenant in tail the Remainder to his right Heirs makes a Lease to the Issue within age upon Condition to have Fee at full age during the Term he performs the Condition he shall be remitted for the Contract was during his Minority As if an Infant delivers a Deed as an Escrowl to be delivered as his Deed when he comes of full Age and receives the money yet he shall avoid the Deed. Vide Release Condition Rent LEssee for life makes a Lease for forty years rendring a Rent the Lessor confirms the Estate of the second Lessee and then Tenant for life dies within the term the Lessor distrains and avows for the Rent some think it is not maintainable Lord and Tenant by Homage Fealty and Rent the Lord grants his Homage upon Condition reserving the Rent the Condition is broken he hath no Remedy for the Arrerages due before Tenant in tail discontinues in Fee and takes back an Estate in Fee and grants a Rent Charge in Fee and dies the Lord seiseth the Ward the Grantee distrains for the Rent and the Lord makes Rescous and the Grantee brings an Assize some think it is maintainable Lessee for life makes a Lease for ten years rendring a Rent the Lessee for years makes a Feofment he shall hold the Land discharged of the Rent though it binds the Lessee for life for the rent cannot indure longer than the reversion and though he had granted it to a Stranger yet had it been gone and so it differs from the other which is not in respect of the reversion And if a man makes a Lease for life reserving a rent to the use of A. and Tenant for life surrenders the rent is gone 1 Ass 10. If the Mesne grants the rent of the Tenant and the Tenancy Escheats the Rent is gone A. makes a Lease for life and grants a Rent Charge out of the reversion the Grantee purchaseth the Estate of Tenant for life who dies and the Lessor enters if the Grantee may distrain for all the Arrerages from the time of the Grant A Rent is granted to commence after the Death of the Grantee who dies if his Wife shall be endowed The Father dies seised of a remainder having two Sons by two venters the Eldest Son being Tenant in tail of the particular Estate grants a Rent Charge in Fee and dies without Issue the second Son enters and an Avowry is made upon him for the whole Charge If a man hath two Daughters by two venters or by one he dies and the Eldest grants a Rent Charge and dies before Entry into the Land some think the youngest shall hold all the Moity charged as if one Jointenant grants a Rent charge and dies the Survivor shall hold all discharged If Land be devised reserving a Rent that is a void reservation for the reservation of the Rent cannot be good but in respect the Reservor might take advantage of it by possibility and the Heir cannot have that which the Ancestor could not for if a Re-entry be reserved to the Heir it is void If Tenant in tail holds by Rent and the Donor grants the Services of the Donee nothing passeth though there be Atturnment for the Rent cannot passe but as a Rent Service For if there be Lord and Tenant by Rent and Fealty and the Lord grants the Services saving the Fealty nothing passeth for it must passe as a Rent Service for it is granted by the name of Services for a Rent seck or Rent Charge cannot passe by that word Quaere if the sueing be not void for the Repugnancies and as a Rent Service it cannot passe for then the Donee should pay one Fealty to the Grantee and another to the Donor for the reversion and so the Donor should charge him with two Fealties which cannot be no more than the Lord can grant the Moity Tenant for life grants a Rent Charge in Fee and after he and the Lessor make a Feoffment of all their Land in such a Town where the Land lieth and make a Letter of Atturny to make Livery yet the Rent indures but for the life of Tenant for life for it is but a Grant of the Estate of Tenant for life and also of him in Reversion But if they had made a Feoffment of that Land only then the Rent should endure for ever for it is the Feoffment of Tenant for life and the Confirmation of him in Reversion Quaere for the Deed is first delivered and after the Livery is made and the reversion passeth by the delivery of the Deed for it is an Atturnment of the Tenant for life by the delivery of the Deed. If a man reserve a Rent upon a Lease for life he hath not a Fee in it for his Wife shall not be endowed but if Lessee for life grants a Rent in Fee a Fee passeth for by possibility it may endure for ever that is if the Lessor confirms it But if Tenant for life grants a Rent in Fee to the Lessor who grants it over yet he shall avoid it after the death of Tenant for life for it cannot be a Confirmation though it were granted by Dedimus Concessimus for the Grantee had not possession of it before and one and the same word at the same time cannot amount to a Grant and a Confirmation also And therefore if a Disseisor grants a Rent Charge to the Disseisee and he grants it over and after re-enters he shall hold it discharged If Tenant pur auter vye grants a Rent Charge in Fee and after he hath the Reversion by descent or release Cesty que vye dies he shall hold it discharged but if after the Fee was vehe had made a Feoffment the Feoffee should not have avoided it after the death of Cesty que vye A Seignory is granted for years the Rent being arrear the Tenant dies the years expire the Heir shall not be charged as Heir in Debt if the Father did not bind himself and his Heirs by expresse words and the Executors shall not be charged for they were not chargeable with it at the death of the Testator for at that time the Grantee could not have had an Action of Debt for it but he must have Distrained and so the Lessee is without remedy If a Rent be
rent is intire and so not apporcionable then the Eldest being he is Heir at Common Law shall have all as an Assize at Common Law is maintainable for a rent granted out of Ancient Demesne and other Lands 35 H. 6. 4. p. Ashton If a rent be granted in Fee and the Grantee grants it for years the Grantee hath no remedy if it be denied for the Election to have an annuity is only given to the first Grantee and his Heirs and the Election runs in privity which fails in the second Grantee If a rent incident to a reversion be granted for years saving the reversion the Grantee hath no remedy for he shall not have an Action of debt though the Lease out of which the rent issued was for years for there wants privity If a Lease be made to two Habendum the one Acre in Fee and the other for life reserving a rent Quaere how the Lessor shall avow but his Executors are not aided by the Statute of 31 H. 8. If a Lease be made of two Acres reserving a rent for years and then the reversion of one Acre is granted the rent shall be apporcioned for as the contract is made in respect of the reversion so it shall be severed in respect of the reversion A rent charge is granted in tail to the Vse of A. and his Heirs the rent is behind the Donee dies without Issue A. brings an Action of Debt for the Arrerages If the Parson and Ordinary grant a rent charge out of the Glebe to the Patron the Successor shall avoid it for the assent of the Patron ought to be expresse and of the Ordinary also where the Successor must be bound and it is but implied here but the best way had been to have granted it to A. and he to have granted it to the Patron and in the first case if the Patron grants it over that is no full assent but the Successor shall avoid it If Tenant in tail grants a Rent Charge in Fee and makes a Lease for forty years and dies and the Issue accepts the Rent the Grantee shall have the Rent during the Lease and the life of the Issue although the Lessee Surrenders Quaere for the Reversion is discharged If Tenant in tail grants a Rent in Fee and dies and the Issue having a Wife dies before Entry his Wife is endowed she shall hold it discharged If the Father disseises the Son and grants a rent Charge and the Son endows his Wife Ex Assensu Patris in the same Land the Father dies the Son dies the Wife enters she shall hold it charged for she claims from the possession charged And if Tenant in tail grants a rent charge the Abator shall hold it charged If the Father disseises the Son and grants a rent charge in Fee and makes a Lease for years and the Son confirms the Lease and the Father dies the rent is gone So if a man grants a rent in Fee and makes a Lease for years and grants the reversion to the King or to the Grantee the rent is gone If a Lease be made of two Acres in one County rendring a rent and Livery is made in both severally yet it is but one rent though one Acre passed by the Livery before the other Lessee for twenty years makes a Lease over and makes a Lease of other Land in which he hath an Estate in Fee simple for twenty years reserving a Rent without Deed the whole Rent doth issue out of the Lands in which he hath an Estate in Fee for being he hath granted all his Right over in the other Land it cannot be a reservation out of that If a man grants a Rent for life and after by another Deed grants that it shall be lawfull for the Grantee and his Heirs to distrain for the same Rent that shall be intended a Rent of the same value for that Rent is determined by the death of the Grantee As if the King grants to the Mayor and Commonalty of D. the same Liberties which the Mayor and Commonalty of London have that shall be construed Liberties of the same nature If a man grants to me that whereas he hath made a Lease for forty years to A. that I shall present to the Advowson which the Lessor hath during the same term If A. surrenders the Mannor yet I shall present for when my Grant was during the same term that is to be understood during the like time If the Patron and Ordinary give license to the Parson to grant a Rent in Fee if he does it that will bind the Successor according to the opinion of 7 H. 4. 18. But if a Confirmation had been made to the Grantee before the Grant that had been void and the Diversity is this for in the first case there was nothing requisite but an Assent which may be before the Act is done and therefore it is said that if a Bishop makes a Gift in tail by Deed and the Dean and Chapter confirm the Deed Et omnia quae in eo sunt according to the usuall Confirmation in those cases and after Livery is made that was holden by all the Justices to be a void Confirmation for the Assent was not but to the Deed but the Confirmation ought to be after the Estate made and so a Diversity If a Rent Seck be granted to A. for life and after it is granted that he and his Heirs shall distrain for it during the life of the Grantee it is still a Rent Seck though he may distrain for it but the Heir shall distrain for it and take it by descent A. makes a Lease for life reserving a Rent in Fee and then grants the Reversion with Atturnment and reserves the Rent in Fee and dies the Rent is gone for it is reserved out of an Estate for life only So if Tenant in tail of a Rent grants it in Fee that is no discontinuance for it is granted but during the life of the Grantor If A. makes a Lease for life reserving a Rent the remainder for life the Lessor grants the reversion to him in Remainder the first Tenant for life atturns he shall not have the Rent for the Fee simple drowns the remainder to some purposes but as to this it is in Esse A. grants a Rent Charge in tail and enfeoffs the Grantee of the Land who gives in tail reserving to him so many services as he pays over to the Lord Paramount and dies the Issue shall not have a Formedon of the Rent being he hath the Reversion for the Land is discharged at the time of the Gift in tail 31 E. 3. Scire fac Lessee for twenty years makes a Lease for ten years who purchaseth the Reversion with Atturnment of the Lessee the Executor of the Lessee for ten years shall not have the residue of the term but the Heir but he shall pay the first rent reserved to the Lessee for twenty years in nature of a Rent Charge granted
by him for the Term is in Esse as to that purpose but it seems the first Lessee may distrain If two Parceners are seised in tail and one grants a Rent to the other for Equalty of Partition she shall have an Estate tail in the Rent 2 H. 7. 5. and note that the Estate in the Rent shall be of the same nature of the Estate received and not of the nature of the Estate out of which it issues As if there be two Parceners of one Acre in Fee and of the other in tail and upon Partition she which hath the Acre in Fee grants a Rent to the other that Rent shall be in tail and not in Fee but if she which hath the Acre in tail grants a Rent to the other that shall be in Fee for if she dies without issue her Heir shall have it as long as the other hath issue of ber body But if there be four Acres in Fee and one in tail and she which hath the four Acres in Fee grants a Rent to the other that shall be in Fee Quia sequitur magis principale If the Lord grants the Rent saving the Seignory and the Tenant is after disseised and atturns this is void for it is now a Rent Seck in which there is no Attendancy but a Charge to the Land If a man grants a Rent reserved upon a Lease for life saving the Reversion it is a good Rent Seck if the Tenant atturns But if there be Lessee for years rendring a Rent and the Rent is granted over saving the Reversion that is void for debt cannot lie by the Grantee and he cannot have any other action If the Feoffee upon Condition pays twenty shillings to the Lord whenas the Tenure was by Fine the Feoffor after his Entry for breach of the Condition is bound in a Replevin So if Lessee for life with Condition to have Fee and the Lessor pays more Rent to the Lord than he ought and after the Condition is performed the Lessee is bound in a Replevin So if a Seignory of twenty shillings is granted over by Fine and the Tenant aliens over and after pays forty shillings to the Lord the Feoffee is bound If a Lease be made for life rendring the first four years a Rose and after a yearly Rent of twenty shillings and the Lessor grants the Rent of twenty shillings to commence after the four years this Grant is void for the Rose and twenty shillings are all one Rent and if the Grant should be good the Grantor should have the Rose for four years whereas before he had the Freehold and then it is as if one had a Rent in Fee and grants it over after four years that Grant is void otherwise of a Rent created de novo If a man hath a Rent in Fee and becomes Tenant by the Curtesie of the Land and dies his Heir shall have a Mortdancester of the Rent which he could not have had if his Ancestor had not died seised So if an Assize be brought against the Pernor of a Rent and after the Plaintiffe is nonsuited the Disseisee of the Rent is chased to his Action for the Rent for the dying seised takes away his Entry viz. where the Pernor had an Estate for life in the Tenancy Lessee for twenty yeares makes a Lease for ten years reserving a rent and after makes a Lease to the same Lessee for ten years to begin after his first Estate ended It seems that the first Lessee shall have the rent during the first ten years as a rent service and distrain for it for the last ten years are not out of the first Lessee nor vested in the other neither shall they untill the beginning of the Term and in the mean time he hath but a right or Title to the Term. If Tenant for life and he in reversion grant a rent charge and the Grantee releaseth all his right to him in reversion if the rent be extinct Quaere If a Lease be made of two Acres rendring a rent upon Condition to be performed by the Lessee that he shall have Fee in one Acre not saying in which and Livery is made of both the Lessee performs the Condition what rent the Lessor ought to have Quaere or if it shall be apporcioned being part of the reversion to which the rent is appendant is in the Lessee and by an Act that had relation So that it may now be said that the rent was never reserved out of that Acre which seems to be of the same effect as if there had been a gift made of two Acres the one in Fee and the other for years rendring a rent in this case it shall be of one only Acre for he may distrain of common right and out of the other Acre no remedy until after Seisin Also in the said case if the Lessor will distrain in one Acre the Lessee shall take his Election viz. he shall say that he hath Fee in that Acre and so exclude the Lessor The Son makes a Lease to the Father for life who makes a Lease to A. for life the remainder in Fee to the Son the Son grants a rent charge out of the remainder and releaseth to A. in Fee the Father and A. die if his Issue shall hold it charged First it seems that the right Fee is devested and a tortious vested all in the same Instant As if Tenant in tail makes a Lease for life c. or the Husband makes a Lease for life of the Wives Land c. then in the first case the Rent being granted out of the Reversion it is the same as if it had been granted out of the Remainder for they differ not in substance And when the Son releaseth to A. and his Heirs all his Right that doth not inure as an Entry and Feoffment because A. was in by Title without Disseisin then that doth not give unto him the remainder as if he had released all his Estate in the Land or all his right Habendum the Land in Fee but here he had the right and the Estate and then a Release of right doth not inure to the Estate then if the release doth not perfect the remainder if the Grant of the rent which is an assent to the remainder doth so inseperably unite the remainder and the Rent that the right shall be drownd in the Estate for the preservation of the Rent and some think not for if the Disseisee takes an Estate in Fee from him who hath the Land by Descent he agrees to it and yet if he dies his Heir shall be remitted and so the rent charge avoided But others think that being by the Grant of the rent charge he hath agreed to the remainder and so to the Livery he cannot after enter upon the Tenant for life and then the release gives the remainder and so the Land is charged Where a Woman shall be endowed of a rent vide Dower If a rent seck be granted
regardant makes a Lease for one and twenty years to the Villain rendring a Rent according to the statute and dies within the term if the Issue being remitted to the Freehold of the Villain may enter into the Mannor and out the Villain Upon a plea in Bar of an Assize the parties are adjourned and after the Tenant pleads a Release made after the Darrein Continuance bearing date in a forreign County and after at the Venire fac return'd the Tenant pleads that after the Darrein Continuance he hath purchased the Mannor to which the Plaintiffe is a Villain he shall not have this plea for he shall not delay the Plaintiff by his plea but once where the matter of fact happens de puisne temps for he is at no mischeif if his plea be true But in shewing a Record after he shall plead it if it be in the same Court. And here the Villain shall not be enfranchized for the Plea was pleaded before which now he ought to maintain but if he answers his Villain de Novo that is an Enfranchisement Voucher THe youngest son of an Abator hath Land by descent by the custom of Borough English or by reason of an Estate tail made to his Father and a second Wife in a Mortdancester brought against him he shall vouch notwithstanding the Counterplea given by the Statute for the Statute extends but to Heirs at common Law and therefore if an Abator hath Issue two Daughters and makes a Feoffment and dies and one of them takes a Feofment and an Assize is brought against her she shall vouch for she is not sole Heir but if she had been sole Heir then cleerly she shall not vouch though she doth not come to it as Heir And if an Abator and a stranger being Tenants in a Mortdancester vouch they shall have the Voucher If Feoffee with Waranty to him his Heirs and Assigns makes a Lease for life the Tenant for life in a plea vouches the first Feoffor and recovers in value Land held of the Feoffee if the Feoffee shall have his Seignory For if the Reversion of the Land recovered be in the Feoffee then he shall not avow and if he shall not Quaere if Lessee for life shall vouch as Assignee being that he hath not all the Estate And it is cleer if the Feoffee had made a Lease for life the remainder in Fee the Lessee shall vouch as Assignee and if he recovers in value the remainder shall be in him in whom it was before 28 Ass p. 18. 11 Ass p. 3. If the younger brother and a Stranger abate and the Stranger dies now a Mortdancester doth not lie or if an Abator makes a Feoffment and retakes an Estate to himself and another and the other dies the Voucher does not lie for him and yet before an Assize of Mortdancester and Voucher did lie If a Feoffment be made with Warranty to one his Heirs and Assigns the Feoffee makes a Feoffment over the second Feoffee enfeoffs the Son of the first Feoffee he shall vouch for he may be Assignee of his Father being he does not come in as Heir Lord by Escheat Mortmain or of a Villain c. shall not be said Assignees Land is given to Husband and Wife and to the Heirs of the Husband he makes a Feoffment with Warranty and dies the Wife brings her Cui in vita the Feoffee vouches and recovers in value by reason of the Warranty after the death of the Wife he shall vouch again by reason of the Warranty aforesaid So if a Woman brings a Writ of Dower and the Feoffee vouches by reason of the Warranty he shall vouch again after the death of the Wife because the Voucher and Recovery in value was onely in respect of the Freehold but if he had once recovered in value of the Fee he should never vouch again by reason of the first Warranty for he hath the effect of it and also the Warranty is gone with the Estate But if Tenant in Frankmarriage recovers in value he shall vouch again but it is otherwise of Tenant for life If Tenant in tail to him and his Heirs Females the remainder to him in Fee makes a Feoffment with Warranty and dies the Heir Female recovers and the Feoffee recovers over in value he shall vouch again after the Estate tail is spent by reason of the first Warranty If the Tenant vouches and at the Sequat sub suo periculo the Tenant and the Vouchee make Default whereupon the Demandant hath Judgement to recover against the Tenant and after he brings a Seire fac against the Tenant to execute the Judgement if the Tenant shall have a Warrantia Chartae against the Vouchee But if a stranger brings a Praecipe quod reddat against the Tenant some think that he shall vouch for by the first Voucher and the Judgement given against the Tenant the Warranty was not defeated nor the possession of the Tenant but if the Tenant had judgement to recover in value against the Vouchee he shall never vouch again by reason of this warranty for the warranty hath lost its force being he had Judgment to recover in value by reason of it for if he should recover again he should have 2 Recoveries upon one warranty It was holden cleerly that if the tenant hath Judgment against the Vouchee he shall recover no land in value but that the Vouchee had at the time of the Judgment And note upon a Summoneas ad Warrantizand if the Sheriff returns the Vouchee warned and he makes default the Tenant shall have a Cap. ad val and recover in value but if he returns that he hath nothing then after the Sicut alias pluries a Sequatur sub suo periculo shall issue and there if the Vouchee makes default he shall not have Judgement to recover in value for the Warranty is not confessed and it is uncertain whether he had any thing but in the Cap. ad val it appears that he has Assetts A. seised of two Acres at Common Law and one in Borough English and makes a Gift in tail to a Stranger of one of the two Acres and dies the Donee is impleaded and vouches the eldest Son and recovers in value the other Acre out of his possession as he shall do in this case being he vouches him alone and not the youngest where the eldest hath assetts the question is if he be impleaded for that Acre he hath recovered if he shall vouch the eldest and the youngest If that Acre in Borough English shall be lyable by reason of the said Warranty in Law being it is not the Warranty which descends but the Warranty in Law commenceth first in the Eldest Son for the Recovery in value shall be said in lieu of the first Land given yet it is always to be intended having regard to the estate of the Reversion descended from the Father the Reversion left in the Eldest Son and then the Acre of the youngest is not lyable
with warranty as it is in 31 E. 3. in a Warrantia chartae there the warranty shall not extend to the rent because the rent was not in esse at the time but if upon a rescous she brings an Assize and after is nonsuited and after the Tenant makes a Feofment of the Land with warranty that warranty will extend to the Rent Quod nota A man dies seised of an Acre in Borough English in tail having three Sons the youngest enters and makes a lease to the second for years who makes a Feofment with warranty and dies without Issue the yongest dies without Issue the eldest brings a Formedon if he shall be barred by the warranty It seems though the warranty descends upon the eldest where it was a disseisin to the youngest yet when the right of the Land comes unto him he shall say that the warranty comences by disseisin because he is now privy to the warranty and to the estate for if the Father seis'd in fee makes a lease to the Grandfather for years who makes a Feofment in Fee with warranty and dies and the Father dies that warranty shall not be a bar to the son because it comenc'd by disseisin to him whose Heir he is And if a man hath Issue two Sons the youngest makes a Lease for years to the Father who makes a Feofment with warranty and dies and after the Eldest dies without Issue and the warranty descends upon the youngest that shall be no bar because it comences by disseisin and though the Land doth come immediately to him upon whom the warranty descends as it was in the principall case or although the warranty doth not descend upon the Tenant of the land immediately as heir to him that made the warranty yet all is one Warranty which ommences by disseisin and wrong is made to him in the interim upon whom the warranty descends after although that wrong was not a dissesin to him yet it is a warranty which commences by disseisin As if an Ancestor Collateral to the Donor desseise the Donee to the intent to make a feofment with warranty which is done accordingly and the warranty descends upon the donor and after tenant in tail dies without issue in a formedon in reverter the warranty shal be no bar because it commences by disseisin to the tenant in tail at which time wrong was made to him in reversion and therefore he shal say that the warranty commences by desseisin tamen vid. 30. E. 3. 12. But if a man makes a feofment with warranty and dies which is a disseisin to a stranger the heir of the Feoffor if he hath not the right of the land descended to him after shall be vouched for the warranty then in the principal case if the eldest cannot say that the warranty commences by disseisin yet it shall be lineal against him for by possibility he might have made himself heir to him that made the warranty for the land doth descend to the youngest heir as well as to the youngest Son and so to the youngest unkle for the reason is all one for the young'st brother shal be in as youngest Son to the common Ancester but some say there is not any reason in these two cases If tenant in tail is desseised and release to the disseisor with warranty and after is attained of felony and hath a Charter of pardon and dies it seems it is a discontinuance for if he had purchased land after his Charter it would descend to his heir which proves that the blood betwixt him and his heir is not corrupt as it is between him and his Ancesters then the warranty being in esse at the time of his death there is no impediment but that it may descend But if tenant in tail who hath a warranty annexed to his estate be attainted of felony and executed many think his issue shall not inherit the voucher for the warranty though he hath the land for the warranty is out of the statute de Donis Condit which speaks of lands and tenements which are given upon condition But Plowd thinks the contrary for by the equity of the statute it is preserved as well as Charters 21. H. 6. 20. per Markeham 9. H. 6. 60. b. Cott. for Charters Feoffee with warranty is disseised by the Feoffor who dies seised the Feoffee outs the issues who brings a writ of right the Mise is joyned upon the meere right and the demandant is barred for if the Feoffee being impleaded by a stranger shal arraine the warranty against the issue is the question FINIS
in a Formedon and dies the son born cannot enter or have Execution But if the Issue in tail recovers against the Discontinuee and after is attainted of Felony his Issue shall enter or sue Execution for he is privy in Estate Tenant in tail recovers in value by Voucher of the donor and is attainted of Felony his Issue shall not have Execution If the Son hath the Land of the Father and of another in Execution upon a Statute and the Land descend from the Father to the Son the whole Execution is discharged In Judgement for debt the party shall not have Execution but of that Land only which he had at the time of the Judgement and not at the time of the purchase of the Writ But in debt against the Heir if he aliens hanging the Writ it shall be liable to the Execution although the alienation was before the Judgement for the Action was conceived against him in consideration of the land but in the first case it was in respect of the person The Conisor of a Statute is in Execution and his Land also the Conisee releases to him all debts the Execution is discharged by this Release for the debt was in being until it was levied of the profits but though the Execution be discharged by the party yet until it be discharged in fact if the Goaler had suffered him to go at large he could not have said but that he was in Execution Executors IF a Lease for years be made reserving a Rent upon Condition of Re-entry for not payment If the Executor breaks the Condition so that the Lessor re-enters it is a Devastavit in them otherwise if the Condition were performable on the part of the Lessor Br. Extinguishment 54. for every voluntary act of the Executor by which the Goods of the Testator are consumed without any benefit to the Testator is a Devastavit But if an Executor having such a term as Executor purchaseth the Reversion that is not a Devastavit for the Term as to Assetts is in being still If a man Mortgages his Term and dies and his Executors do not redeem it some think it is a Devastavit If they have Assetts in their hands wherewith to redeem it and the Term be better than the price of the Redemption so if an Executor sells a term under the value by which the Creditors lose their Debts this some think is a Devastavit But if a man be possest of a term and devises it to his Executors to be sold Meliori modo quo possunt for payment of his Debts they sell it under the value that is no Devastavit for it may be it was the best price they could get If Husband and Wife make a Lease of the Wives Land reserving a Rent the Husband distreins and avows and has a Return and dies the Cattle are discharged for the Executors cannot have them for they are but as a Pledge and being the Executors cannot pretend any Right to the duty they cannot detain the Pledge for the Wife is to have the Duty Vide 33 H. 6. 48. If a Rent Charge be granted in Fee the Grantee dies without Heir the Executors shall not have an Action of Debt for the Arrerages But if the Grantee had brought a writ of Annuity and Recovered then the Executors should have an Action of Debt for the arrerages for if the Inheritance of a Rent determins the Arrerages are extinct otherwise of an Annuity If a Grant be made of a Robe or twenty shillings and the Grantee dies before Election his Executors cannot demand the Arrears The Executors of a Grantee for years of a Rent Charge shall have Election either to have an Action of Debt or Annuity If a man be bound in twenty pound and his Executors have but ten pound an Action of Debt lies against the Heir for all for if he chooseth the Executor he cannot sue the Heir for the Remnant If an Obligor in twenty pound hath Goods to the value of ten pounds only and makes the Obligee his Executor he shall retain that as parcell of the Duty and for the rest bring his Action against the Heir for it is by the act of the Law that the duty is apporcioned If A. by Deed gives the Mannor of D. with all the Woods to B. if Livery be not made the Executors shall have the Woods If there be two Wills and the Executor of the last refuseth before the Ordinary yet the first is revoked by the intent of the Testator If the Executor Releases a duty of the Testator this is so much an Administration so that he cannot after refuse but yet if he doth after avoid the Release he may refuse A Lease for life is made rendring a Rent at Mich and the Annunc the Land is sowen at Mich and the Lessee dies if the Executors shall have the Land untill the Corn be ripe if they ought to pay the Rent Some think the Lessor may have an Action upon the case for the Executors have the profits of the Land c. and no fault in the Lessor As if a gift in tail be made Reserving thirty Shillings and the Donee dies without Issue and the Wife is endowed she shall pay ten shilshillings and yet the Estate is determined but she claims under the Estate of the Husband A man makes a Lease for life reserving a Rent upon Condition that if the Rent be behind that the Lessor shall enter and retain untill he be satisfied of the Arrears he enters and dies his Executors shall not retain for the Arrears were not Chattles at the beginning and therefore they shall not retain the Land as a Gage as they shall do for the double value for that was a Chattle at the beginning But in the first case the Arrears are given to the Executors by the Statute of 32 H. 8. Yet being the Arrears were no Chattles at the first and so not due to them by their own nature therefore they shall not retain As in 15 E. 4. 10. In Rescous there it is said if the Defendant in a Replevin avows for a Rent due to him and his Wife and upon that he hath a Return and dies the Tenant shall have his Cattle back again without any Agreement because the Executors could not have the distresse being they could not have the Rent but the Wife was to have it If an Executor delivers a Legacy upon Condition it is no good delivery The Debtee and another are Executors to the Debtor the Debtee recovers against the other and after Administers with the other and then sues Execution by Scire facias If the other shall have an Audita Querela and in whose name it shall be sued or if the property shall be altered in the Recoveror or if Execution be discharged but some think that Execution cannot be stopt but the Recoveror shall have it to the use of the Testator Vide Condition Debt Extinguishment THe Tenant holds ten Acres by ten