and he grant this Forest Park Chase Vivarie or Warren Forest Park Chase Warren hereby not only the priviledge but the land it selfe doth passe But if the ground be anothers or if it be his owne and the grant be onely of the game c. in these cases the land or soil it selfe will not passe If a man be seised of a river and by his deed doth grant seperalem Fishing Co. super Litt. 4. piscariam or aquam suam in the same and maketh Livery secundum formam cartae by this grant doth passe onely a liberty to fish within the water and not the soile nor the water it selfe and therefore the grantor may take water still and if it be drie he may take the soile also And if one grant all his fish in his pond by this is granted a power to come and fish for them but the grantee Fitz. Barre 237. may not hereby dig a trench and let out the water to take the fish albeit they may not be otherwise taken If one bee seised of 20 acres of land and hee grant to another Vesture or Herbage of land Co. super Litt. 4. Dier 285. Trin. 5. Jac. B. R. accord and his heires the vesture or the herbage of it and maketh livery of seisin in it secundum formam cartae by this grant doth passe the corn grasse underwood sweepage and the like and for these things the grantee may have an action of trespasse for any wrong done to him But hereby the land it self the houses Profits of lands and great trees thereupon and mines therein doe not passe And if one grant the herbage or vesture of a wood hereby is granted the grasse and underwood onely and not the timber or great trees But if a man so seised of 20 acres of land grant to another the profits of this land To have and to hold to him and his heirs and maketh livery secundum formam cartae hereby the vesture herbage trees mines and all whatsoever parcell of that land doth passe If one grant to another all his deeds or all his muniments hereby 35 H. 6. 37. Deeds will passe all his charters feoffments leases releases confirmations letters of Atturney and the like If one give or grant to another Omnia bona or all his goods by Goods Co. super Litt. 118. 39 H. 6. 35. Dier 59. Perk. Sect. 115. 12 H. 8. 4. Bro. Grant 96. 51. Done 39. 47. Dier 5. Co. 8. 33. this doth passe all his moveable and immoveable personall and reall goods as horses and other beasts plate jewels and houshold stuffe bowes weapons and such like and his money and his corn growing on the ground also all the obligations and bils that are made to him and in his own name doe passe by this but not the debts due by such obligations and bils And some say that leases and terms of years of houses lands rents commons c. rents charge for years wardships of tenants in Capite and by Knights service and the interests that a man hath by Statute Staple Statute Merchant or Elegit doe passe by this grant but of this others doubt And if a man give or grant to another omnia catalla Chattels sua or all his chattels hereby doth passe as much as by the grant of all his goods and by this without question leases for years c. doe passe But by neither of the grants doe passe those goods or chattels which the grantor hath by delivery in keeping for another or the like Neither doth any estate of inheritance or freehold or the charters concerning any freehold passe under these words a Perch Just B. R. 21 Jac. Neither doth any thing in action as debts or the like nor hawkes hounds poppinjays or the like passe by this grant b Adjudged 3 Jac. Kelw. 64. 10. Col. 4. 1. Per Flemming Just 7 Jac. B. R. And yet if an Executor grant omnia bona catalla sua hereby the goods and chattels he hath as Executor as well as his other goods and chattels will passe And if one grant all his leases for years which he hath by any conveyances hereby the leases for years which he hath as Executor as well as other leases for years will passe If one grant to another all his Utensils hereby will passe all Dier 59. Utensils his houshold stuffe but not his plate jewels or any such like thing If a man be seised of land in feesimple or for life and have an estate Grant of all a mans estate right c. Co. super Litt. 345. Litt. Sect. 613. Plow 161. Co. 1. 153. in it for years by Statute Merchant Staple Elegit or the like and he grant all his estate or all his right or all his title or all his interest of and in the land by this grant all his estate and as much as he is able to grant doth passe And if tenant for life of land the remainder to the stranger in taile the remainder to the right heires of the tenant for life doe grant by these words hereby both his estates do passe And if a tenant in tail grant all his estate in the land hereby there doth passe as much as he can grant And all these words also doe cary and passe reversions as well as possessions And if a man have a tearm of years of land and he grant his tearm hereby doth passe the tearm of yeares and all his estate and interest of the land And note that by all these names these things may be granted Note and that for such things as are grantable without deed when Pitz Brief 581. they passe by a verball grant in any of these words the words shall have the same exposition as they have in deeds If one grant all his goods in such a place si quae fuerint by this H. 6. grant nothing doth passe but the goods that are in such a place at the time of the grant and not any other goods that shall bee there afterwards If two men have goods in common and have other goods severally Bro. Done 12. and they give me all their goods by this grant is given all their goods they have in common and likewise all the goods they have in severalty If â—wo tenants in common or others severally seised of land Plow 171. 140. Co. 10 106. join in the grant of a rent of twenty shillings or a horse out of the land whereof they are so seised by this grant the grantee shall have two twenty shillings or two horses If a man grant a rent of ten pound to me To have and to hold Bro. Grant 64. during my life and my wives life and after the death of my wife a rent of three pound to me for my life in this case if my wife die I shall have both the rents But if there bee any words of restraint or determination of
57. Co. 1. 113. 174. possibilities albeit they be not grantable over to another person yet may they be released to him that hath the present estate of the land And therefore if a man possessed of a terme devise it to A for life the remainder to B and his heires males during the terme in this case albeit B may not grant his interest over yet he may release it to A. And if A devise to B twenty pound when he comes to the age of twenty foure years and die in this case B after he is of the age of twenty one years may release this legacy So a covenant to doe a future act may be released before it be broken And it seems also the conusee of a Statute or recognisance may release to a feoffee of part of the land and so barre himselfe of execution of that land And if I grant to I S that if he doe such a thing he shall have an annuity of twenty pound for his life in this case it seems I S may release this before the condition be performed And if I make a feoffment to I S to divers uses with power to revoke it I may release this power to one that hath an estate of free hold in possession reversion or remainder in the land And yet if I make a feoffment to I S with proviso that if B revoke that the uses shall cease in this case B cannot release this power And a remote possibility that is altogether incertaine cannot be released And therefore if the sonne of the disseisee release to the disseisor in the life time of his father this release is void And so if the conusee of a Statute release his right to the land of the conusor before execution this release is void And so if a plaintife release to a Baile in the Kings Bench before Judgement given this release is void So if one promise to pay me tenne pound upon the surrender Adjudge Tr. 14. Jac. B. R. of my land to him and that if he shall sell it for above fifty pound that then he shall pay me tenne pound more and I release this to him before he doe sell it and before I do surrender im this case this doth not release the second promise because it is not releasable Also debts legacies and other duties may be released and See inâ—â— discharged thereby before or after they become due And therefore a rent or annuity may be released before the day of paiment And so also may a debt due by obligation Judgements Executions Recognisances and the like by apt words be discharged by release If the charge or duty grow by record the discharge and release 5. How and after what manner these things may be released thereof must be by record also And if it grow by writing the discharge and release must be by writing also Nihil est magis rationi consentaneum quam eodem modo quodque dissolvere quo constatum est And therefore a duty growing by a verball agreement may in some cases be released by word without writing But regularly lands and tenements cannot be given nor rights and titles to lands and actions be discharged by release without a deed in writing A release that doth enure by way of mitter le estate mitter le Condition Defeasance Co. super Lit. 274 Perk. Sect. 718. Lit. 467. Co. 1. 111. 21 H. 7. 24. droit or extinguishment may be made upon condition or with a defeasance so as the condition or defeasance be contained in the release or delivered at the same time with it for no defeasance made after can avoid the force of a release made before And yet a release may be delivered as an escrow and so the force of it may be suspended for a time But a release of a condition may not be made upon a condition Nor may a release of a chattell be upon a condition subsequent but it may be upon a condition precedent * Curia B. R. Hil. 9 Car. Barkley Perkes case Dier 307. 21 H. 7. 24. Co. super Lit. 274. Lit. Sect. 467. And therefore if a man release a debt to another upon condition that the relessor may have such a debt owing from a third person to the relessee this is a good coÌ„dition A release of all actions may be made untill a time past as untill the first of May last or untill the day of the date of the release and this will discharge all actions till then and none after But a release cannot be made of a right or action for a part of an estate or for a time only as for one year or untill Michaelmas next or the like for a release of such a thing for one day or for one hour is a release of it for ever And yet a man may release his right in a part of the land And therefore if a man be disseised of two acres he may release his right in one of them and enter into the other acre Also a release in the nature of an acquitance may Adjudged Barkley Perkes case Hil. 9 Car. B. R. be of part of a debt And therefore if one be bound in an obligation of foure hundred pound to pay two hundred pound at Michaelmas and at Christmas after the obligee by his deed releaseth three hundred ninty pound parcell of the said foure hundred pound this is a good release for so much and no more * 6. What releases may be made of lands or tenements And what shal be said a good release in deed Or not And by what words it may be made 1. When it doth enure by way of enlargement or passing of an estate 1. In respect of the estate of the relessor In every good release in deed howsoever it enure these things are requisite 1. That there be a good relessor and a good relessee and a thing to be released 2. That the deed be well sealed delivered c. And if it tend and enure by way of enlargement of estate then these things are further required to make the release good 1. He that doth make the release must have such an estate in himselfe as out of which such an estate may be Dier 251. derived and granted to the relessee as is intended by the release as if he have the reversion in fee of lands he may release to a tenant for years and thereby encrease his estate to an estate for life or in taile or he may passe his whole fee simple by the release But if there be lessee for years rendring rent and the reversion is Per Justice Jones 5 Car. Dier idem granted for life the remainder over in fee and the grantee of the reversion release all his right to him in remainder and then he in the remainder grant the reversion and the tenant for life release to the grantee also in this case it seems both these releases are void and cannot
to English so let us also turne some of the Law touching these Deeds out of French into English Bonum quo communius eo melius And I see no more reason why in Law more then in Physick the discovery of the Art should make the Art or Artist the lesse regarded But under correction I should rather think that it will rather make them both the more esteemed as a jewell whose properties are known and that it will make them the more and other men we have before spoken of the lesse to be used and employed in their affairs for the more men know the lesse they think they know and the more they doubt and nothing moves men to be so bold and confident in these matters as their ignorance according to the Proverb Who so bold as blind Bayard And for further answer to this I wish men to see the Preface to the Lord Coke upon Littleton And if any man have any thing else to object and except for some there are that will neither put forth their own strength to doe good nor bear with others that doe so I wish them to undertake the same subject and to perfect and supply my defects And so committing thee to God and this work to thy favourable censure I am Thy true friend W. S. THE CHIEFE CONTENTS of this Book OF Common Assurances in generall Ch. 1. Fol. 1 Of a Fine ch 2. 2 Of a Common Recovery ch 3. 37 Of a Deed ch 4. 50 Exposition of Deeds ch 5. 75 Of a Condition ch 6. 117 Of a Covenant ch 7. 160 Of a Warranty ch 8. 181 Of a Feoffment ch 9. 203 Of a Bargain and Sale ch 10. 221 Of a Gift ch 11. 227 Of a Grant ch 12. 228 Of an Atturnment ch 13. 253 Of a Lease ch 14. 266 Of a Feoffment Gift Grant and Lease ch 15. 284 Of an Exchange ch 16. 289 Of a Surrender ch 17. 300 Of a Confirmation ch 18. 311 Of a Release ch 19. 320 Of a Statute ch 20. 353 Of an Obligation ch 21. 367 Of a Defeasance ch 22. 396 Of a Testament ch 23. 399 Of an Vse ch 24. 501 THE TOVCH-STONE OF Common Assurances CHAP. I. Of Common Assurances in generall THe Common or Generall Assurances or Conveyances of the Kingdome being that by which commonly the property of things is made or changed are of two sorts or are made two manner of waies viz either by matter of Record or by matter of Deed. Those that are made by matter of Record also are made either by matter of Record of a more high nature and extraordinary way or by matter of Record of a more low nature and ordinary way Those Assurances that are made by matter of Record of a more high nature are such as are made by Act of Parliament of which we intend not to treat at all neither doe we intend to meddle with those Assurances that are made by the King unto his Subjects as being matters more transcendent and intricate but those we intend to treat of are onely the common Assurances or Conveyances that are made between Subject and Subject and are of ordinary and daily use for the transferring of the property of lands tenements and hereditaments from one man to another And of these there are observed to bee tenne kinds two whereof are made by matter of Record as a Fine which is said to be a feoffment of Record and a common recovery which is in the nature also of a feoffement of Record and the rest are by matter of Deed as First by feoffement Secondly by Grant Thirdly by Bargain and Sale by deed indented and inrolled Fourthyly by Lease Fiftly by Exchange Sixthly by Surrender Seventhly by Release or Confirmation both which are in nature of Grants Eightly by Devise or by last Will and Testament And some of these also serve to transferre the property of other things as well as of lands and some of them also have other operations and uses as well as to change and alter property and passe things from one man to another as will appear in their proper places And the first thing we shall beginne upon shall be the learning of a Fine and Common Recovery and first of a Fine CHAP. II. Of a Fine THis word is ambiguously taken in our Law for sometimes it is Termes of 〈◊〉 the law tit Fine Co. upon Lit. 126 127. 120 Plow 357. West Symb. part 2. chap. 1. Fine quid taken for a summe of money or mulct imposed or laid upon an offender for some offence done and then also it is called a ransome And sometimes it is taken for an Income or a summe of money paid at the entrance of a tenant into his land And sometimes it is taken for a finall agreement or conveyance upon Record for the setling and securing of lands and tenements And in this sense it is taken here and so it is defined by some to be An acknowledgement in the Kings Court of the land or other thing to bee his right that doth complain And by others A Covenant made between parties recorded by the Justices And by others A friendly reall and finall agreement amongst parties concerning any land or rent or other thing whereof any suit or writ is hanging bteween them in any Court. And by others more fully An instrument of Record of an agreement concerning lands tenements or hereditaments duly made by the Kings license and knowledged by the parties to the same upon a writ of covenant writ of right or such like before the Justices of the Common Pleas or others thereunto authorised and ingrossed of Record in the same Court to end all controversies thereof both between themselves which be parties and privies to the same and al strangers not suing or claiming in due time And in every Fine there is a suit supposed wherein the party that is to have the thing is called the Plaintiffe sometimes also in another respect the conusee Gonusee or Recognisee Conusor or Recognisor Deforceant or Recognisee the other that doth depart with the thing is called the Deforceant sometimes in another respect the Conusor or Recognisor And it is therefore said to be Finalis câ—cordia quia â—inem ponit negotio adeó ut neutra pars litigantium ab eo de caetero possit recedere And it was anciently the end of a suit indeed for after there had been some contention about the thing by suit the parties became agreed who should have it and so a fine was levyed of it and there was an end of the matter and hence it is said to be fructus or effectus legis because it gives a man the fruit or effect of his suit And to this day therefore a writ doth alwaies goe forth before a fine can be levyed and this is now one of the common Assurances of the Kingdome There are five essentiall parts of a Fine First the originall writ The parts of it Co. 5. 38.
this sort are mad men lunatikes villaines Ideots men that have the Lethargy doting old persons that want discretion drunken men and men that are forced to it by threatning imprisonment or the like also such as are born blind may be conusors or conusees And by what names deafe and dumbe but a man that becomes so accidentally may be received and ought not to be refused Also persons attainted of felony or treason ought not to bee received to levy a fine but such persons being admitted to levy a fine the fine will be good against all Persons attaint persons but the King and the Lord of whom their lands whereof the Non sanâ— memoriae fine is levyed are held for their times but persons waived or outlawed in personall actions onely ought not to be refused a 17 E. 3. 52. Cromp. Jur. 37. 10. E. 4. 13. Also Infants Infants ought not to be received to levy a fine and y et if an Infant be admitted to levy a fine and he doe not avoid it by writ of error during his minority as he may if it be not a fine Sur Grant Render in taile or for life the fine will be good for ever against him and all others b Perk. Sect. 19. Dyer 220. et per Just Bridgmans opinion in private And if he die during his nonage before he hath avoided it it seemes his heire can never avoid it and yet upon this point the Judges of the Common Please have been divided on a solemn argument and of this Just Dod. in 17 Iac. made a Quere c 17 E. 3. 52. 30 E. 3. 5. 27 Ass pl. 53. Perk. Sect. 19 20. Co. 7. 8. Also women that have Women covert husbands ought not to be admitted alone without their husbands to levy fines and yet if such a woman alone levy a fine of her own land she hath in fee simple and her husband doe not avoid it as he may if he will by writ of Ertor entry or otherwise during her life or after her death during his own life if he be tenant by the Curtesie this is now a good fine and will bind her and her heires for ever except she be an Infant at the time of the fine levyed and her husband happen to die during her minority for then in that Case if it be not a fine Sur Grant Render to her in taile or for life she may avoid it during her minority but if the coverture continue untill her full age in that Case she cannot avoid it except her husband joyn with her in it but the husband and wife ought to be received together to levy any fine of her land If such persons as are civilly dead as Fryars Corporations West Symb. part 2. Sect. 9. Plow 538. 575. Co. 11. 78. 1. in Magdalen College case Monkes and the like be admitted to levy a fine the fine is void But such civill bodies as have absolute estate in their possessions as Maior and Commonalty Dean and Chapter Colleges and other Societies corporate may levy fines of the lands they hold in common even by the Common Law and such fines are good but Ecclesiasticall persons as Biships Deanes Masters of Hospitals Parsons Vicars Prebends and such like are by divers Statutes restrained to levy fines of their spirituall inheritances Any person that hath capacity to take by grant or may be a grantee by deed may take by fine and be a conusee therein as any person 3 H. 6. 42. 41 E. 3. 7. 50 E. 3. 9. 24 E. 3. 62. male or female of full age or under age whether it be a Feme Covert madde person lunatike Ideot any person in prison or beyond the Sea also any person attainted of felony or treason or outlawed in any personall action a Bastard Clark convict or Alien may be conusee in a fine and a fine levyed to such persons is good d 5 H. 7. 25. 19 H. 6. 25. Dyer 188. Also Corporations spirituall and temporall may be conusees in fines and fines levyed to them are good but before the ingrossing of such fines there goeth alwaies a writ to the Justices of the Common Pleas Quod permittant â—inem illum levari But such persons as are civilly dead as Fryers Monkes and the like cannot be conusees in a fine and therefore a fine levyed to such persons is void The names of Cognisors and Cognisees in fines must bee West Simb in his Tract of Fines certainly set downe and they must for the most part bee deseribed by their right names of Baptism and Surname whether they be King Princes Dâ—kes Marquesses Earles Vicounts Barons Lords or Knights which be names of dignity but some of these are sometimes described without their Surname as Georg ' Comes Salop. Iohannes Dux Lancastr or whether they be Esquires or Gentlemen which be names of worship and honour But these additions of names of dignity and honour given to such persons or any others as Bishops and the like are used in fines rather of curtesie then of necessity for they are not needfull in fines But in case where there bee two of one name it is safe to make some addition by way of distinction as Senior and Junior and the like If a woman living her first husband take a second husband and 7 H. 4. 22. with him and by his name knowledge a fine it seemes this is void because of this mistake but if a woman with her right husband by a wrong Christian name levy a fine she is concluded by it and cannot avoid it during her life c 1 Ass pl. 11. And yet if a fine be levyed to a man and his wife by a wrong name as to A. and Sybill his wife when her name is Isabell this is holden to be void f F. N. B. 97. a Litt. Broo. Sect. 344. But if a fine be levyed by a woman by the name of Margery when her name is Margaret or by the name of Agnes when her name is Anne it seemes this fine is a good fine The Persons or Judges before whom a fine is to be levyed are of West Simb ubi supra 2. In respect of the persons before whom it is acknowledged and the persons place before whom and where it is recorded And what persons may take conusance of fines or record them And where And how the duty of such persons therein two sorts for some are Judges onely at the time of the Cognisance and Certifieate thereof and others are Judges to whom the Cognisance is to be certifyed and before whom it is to be recorded The first sort are such as have power to take such cognisance either ex officio and by virtue of their offices or by some commission generall or speciall granted unto them by the King out of Chancery g Stat. 15. E 2. Stat. de Carlil as all or any two of the Justices
Estoppell Estoppell And therefore if a lessee for yeers or a disseisee or one that hath right onely to a remainder or reversion levie a fine to a stranger that hath nothing in the land this fine is void or at least voidable as to and by any stranger thereunto and he that hath cause may shew that the freehold estate and seisin of the land was in another before and at the time of the fine levyed and that Partes finis nihil habuerunt tempore levationis finis And by this avoid it And yet a vouchee after he hath entred into the warranty may levy a fine unto the demandant but not to a stranger And a disseifor may levy a fine to a stranger that hath nothing in the land and this is a good fine for he hath the fee simple by wrong in him Also the issue in taile may be barred by way of Estoppell by a fine levyed by Ancester being tenant in taile albeit neither conusor nor conusee have any estate of freehold in the land a a 26 H. 8. 9. Dyer 334. 69. Plow 375. 338. E. 4. 13. 11 E. 4. 68. A Joint-tenant tenant in Common or Coparcenour may levy a fine of his part to a stranger and this will be a good fine And so also as it seemes may one Goparcenour or tenant in common to another One single member of a corporation aggregate of many cannot levy a fine of the lands of the corporation as the Maior or Master of a College cannot levy a fine without the communalty or his fellows c. But such persons may levy fines of the lands they are solely seised in their own right as other men may die Such as have estates of freehold in in Ecclesiasticall lands in the right Co. 11. 78. of their Churches houses c. as Bishops Deanes and Chapters Prebends Parsons and the like may not levy a fine of such lands for if they doe it will not bind the successor He that hath an estate of fee simple in lands in the right of his wife ought not to levy a fine thereof without her and if he doe shee Stat. 32 H. 8. chap. 28. 12 E. 4. 12. Co. 6. 55. Broo. Fines 121. Stat. 32 H. 8. ch 36. Co. 5. 3. 4. Stat. 1 H 7. chap. 20. and her heires may avoid it after his death Also he that hath an estate of lands given in taile by the King or by the provision of the King ought not to levy a fine of this land for it is void as against the issue in taile and the King Also he that hath an estate of lands that are prohibited to be sold by Act of Parliament ought not to levy a fine of such land Also she that hath an estate of lands of her husband or of any of his ancestors assured to her for her Jointure Dower or in taile by the meanes of her husband or any of his ancestors may not levy a fine of this land for if she grant a greater estate then for her own life this worketh a present forfeiture In the concords of Fines some things are to be regarded in the 5. In respect of the Concord and matters touching it And what concord or agreement may bee made by Fine or not West Symb. ubi supra Sect. 30. Co. 5 38. manner and forme and some things in the matter and substance First when a fine is levyed to divers Cognisees the right shall be limited to one of them As if a fine be levyed by A. to B. and C. it shall say Quod praedict ' A. recognoverit tenementa praedict ' esse jus ipsius B. ut ill'quae iidem B. et C. habent c. But the Kings tenant may acknowledge the right to be in divers Secondly the state shall be limited to his heires onely to whom the right is limited and not to the heires of all the cognisees as thus Quod praedict ' A. cognoverit tent ' praed c. esse jus ipsius B. ut ill quaeiidem B. C. habent de dono praedict ' A. ill'remisit quiete clam ' de se haered suis praefat ' B. et C. et haered ipsius B. c. The release and warrantie must be from the heirs of one of the Cognisors where there be more then one for in a fine from divers the fee is supposed to be in one onely And therefore it must be thus Quod praedict ' A. B. cogn ' ill'remisit c. de se et haered ipsius A. Et eidem A. et B. concesserunt pro sâ— et haered ipsius A. quod ipsi war ' tenementa c. si contra se et haereredes ipsius A. imperpetuum But if the fine be of lands in Gavel kind contra Fourthly the Concord need not to rehearse all the speciall names of the things contained in the writ but it is sufficient to say Tenementa praedicta as quod praedict ' recognoverit tenementa praedicta c. Fifthly as a Concord cannot be without an originall writ so it must pursue the originall writ and cannot be of any forain thing 1. such a thing as is not contained in the writ except it be consequent thereunto as when the writ is of land there may be in the concord of a rent out of this land but there may be more things in the Precipe then are named in the Concord And a Concord may be with an exception of some part but this exception must alwaies be of such things whereof the writ will lie and are mentioned therein must be certainly named must succeed the things out of which they be excepted as Precipe A. B. quod teneat C. D. convenâ— c. de manerio de D. cum pertineâ— in C. except uno messuagio duabus acris terrae et advocatione Ecclesiae de C. c. Et est concordia c. quod praed A. cogn ' tenementa praedict ' cum pertinen ' except praeexcept And in all these and such like cases as before where the concord is not formall the Judges ought not to receive the fine nor suffer it to passe but if they doe and the fine be finished it cannot afterwards be avoided by writ or error or otherwise for these faults The Concord and agreement may be made of an estate in fee simple See in West Symb. divers examples Perk. Sect. 629. Broo. Fines 108. fee taile for life or for yeeres it may be also of divers remainders and that to them that are no parties but strangers to the fine It may be also single or double with a render back again of some estate in the same land or some rent out of it so as a Concord may have in it a reservation of rent a clause of distresse or Nomine penae and a warrantie b Broo. Fines 106 118. Co. 6. 33. Plow 435. Dyer 279. Co. 1 76. And therefore if A. levy a fine to B. Sur cognisance de droit come ceo
not intended within but excepted out of the Statute of 32 H. 8. but the King himselfe being tenant in taile of the gift of some of his Ancestors being subjects may levie a fine of it to barre his issues in taile And in all cases where a recovery will not barre the issues in taile there a fine will not barre them Albeit the fine of the husband and wife together of the wives Dyer 72. Plow 373. 2 Wife barred by the fine of her husband or some other land or of the land of the husband and wife together be a perpetuall barre to her and her heires for ever yet if the husband alone levie a fine with Proclamations of such land and then he die in this case shee is not barred of her right but if she doe not make her claime c. within five yeares after her husbands death she is barred of her right for ever notwithstanding the Statute of 32 H. 8. a M. 18. Jac. Co. B. in Anne Twists case And if one seised of land in fee mary a wife and after make a lease of this land to A. for life the remainder to B. in fee and B levie a fine with Proclamations and the husband die and the wife doe not make her claime c. within five years after the death of her husband hereby she is barred of her dower for ever notwithstanding the estate for life in A. but if the remainder of B. had been put to a right at the time of the fine levied she might have avoided the fine by Plea Quod partes finis nihil habuerunt c. b Dyer 224. Co. 2. 93. And if the husband levy a fine of his owne land and die and his widow having no impediment doth not make her claime within five yeares after his death hereby she is barred of her dower for ever c Dyer 358. If a jointure be made to a woman after the coverture and her husband and she levie a fine of it hereby without question she is barred of her jointure in this land but it is thought that this is no barre of her dower in the residue of the land of the husband and especially then when the fine is Sur conusance de droit come ceo c. d Dyer 351. If lands be given to a man and his wife in taile the remainder to the right heires of the husband and the husband alone levie a fine of this this will not barre the wife except she suffer five years to passe after his death without making claime c. and therefore if the fine be to the use of the husband and his heirs in fee he may dispose it as a fee simple and his issue hath no remedy If a man disseise me of the land I have in fee simple or fee taile 3. Disseisee and the like barred by the fine of the disseisor c. Co. 9. 105. 3. 87. super Lit. 298. and after levie a fine of this land with Proclamations and I doe not make my claime c. within five years after the Proclamations had hereby I and my heires are barred for ever of this land And if I being such a tenant in fee make a lease for years or be the Lord of any Copyhold estate and my lessee for yeares or Copyholder in fee or for life be ousted and I thereby disseised and the disseisor levie a fine and neither I nor my lessee for yeares or Copyholder doe make any claime c. within the five years after the fine levied hereby we are all barred for ever And if one disseise me of land and after make a lease for life of it and then levie a fine with Proclamations and I suffer five yeares to passe hereby I am barred both of the reversion and of the estate for life also If tenant for life make a feoffment in fee and the feoffee levie Plow in Stowels case a fine with Proclamations and he in reversion or remainder doe not make his claime c. within five years hereby he is barred for ever If I pretend right or title to land and enter upon it and put him Co. 3. 79. out that is in possession and then I levie a fine with Proclamations with an intent to barre him and he doth not make his claime c. within five years hereby he is barred for ever albeit he had the true right and I no right at all If I purchase land of H. and after perceiving my title defeasible and that a stranger hath the right of the land I doe levie a fine Co. 3. 79. Doct. St. 83. 155. to or take a fine from another with Proclamations with intent and of purpose to barre him that hath right and he suffer five yeares to passe and doth not make his claime c. hereby hee is barred of his right for ever And in these and such like cases there is no reliefe Equitie to be had in equity See more in Numb 11. infra If there be tenant in taile the remainder in taile and the tenant 9. Where a Fine shall be a barre as to one person and not to another or as to one part of the land and not to another Co. 10. 95. 9. 106. in taile bargaine and sell the land by deed indented and inrolled and after levie a fine with Proclamations to the bargainee Sur Conusance de droit come ceo c. in this case as to the tenant in taile and his issue this is a barre but as to all others it is no barre albeit they never make any claime c. So if tenant in taile levie a fine of his intailed land this is a barre as to him and his issues but as to all others it is no barre at all and therefore he in remainder or reversion in their times may enter notwithstanding e Co. 9. 140. 142. So if lands be entailed to the husband and wife and the heires of their two bodies and the husband alone levie a fine of this land this as to the husband tenant in taile and his issues is a barre but not as to the wife for she shall be tenant in taile still and yet it seems she may not suffer Recoverie a recovery of this land afterward So if a man attainted of felony or treason levie a fine of his land this as to the King and Lord of whom the land is held is void and is no barre to their advantage and title of forfeiture but as to all others it is a good barre f 7 H. 4. 44. F. N. B. 98. Plow So if one levie a fine of Lands in Ancient demesne and of other lands together this as to the lands in Ancient demesne is not good nor any barre at all but as to the other lands it is a good barre By the ancient common law he that had right was bound to Co. super Lit. 254. 262 make claime c.
same Court A recovery being matter of Record is much of the nature of a Co. 5. 41. 10. 37. 39. 3. 5. 6. 41 42. Doct. et Stud. 41. 49 50. stat 13 Eliz. cap. 5. 23. cap. 3. 7 11. 8. cap. 4. 4. The use nature and operation of it fine and such a thing as whereof the law taketh notice for it is now become a formall and orderly manner of Assurance of lands and one of the Common Assurances of the Kingdome or a common way and meanes to passe land from one to another And therefore if a tenant for life suffer such a recovery of his land it is a forfeiture of his estate an use may be averred upon it as well as upon Forfeiture Averment Covin a fine and it may be avoyded for covin as well as any other kind of conveyance But it is of speciall use and hath a speciall virtue to barre and binde estates in taile and all the remainders and reversions thereupon And because many of the Inheritances of the kingdome doe depend upon this Assurance and it is oft times the greatest security purchasors have for their money therefore it hath much favour from the law at this day And therefore the law will not endure it shall be disputed against for Communis error facit jus And hence it is that it shall not be avoyded for small errors for it is another rule of law Consensus tollit errorem And if a recovery be suffered by a tenant in taile hereby he hath not only discontinued barred and destroyed the estate taile and so defeated himselfe and his issues the former owner of the land and all the remainders and reversions thereupon that should take place after the estate taile whether they be in esse or contingent only but also all former estates leases and charges made by him in remainder or reversion Co. 1. 62. 25. Doct Stud. 49. 44 Ed. 3. 22â— for as when the estate taile in possession is not barred by a recovery the estates in reversion or remainder are not barred for Quod non in magis propinquo non in magis romoto valebit So it is è converso where the estate taile in possession is barred by the recovery all the remainders and the reversions Conditions charges incumbrances and estates dependent upon it are barred also except it be in some speciall cases where the remainder or reversion is in the King And therefore if A be tenant in taile the remainder to B in taile the remainder to C in fee and B or C doth make a lease for years of the land or grant a rent charge out of the land or enter into a Statute or the like or grant the remainder or reversion upon condition and after A doth suffer a common recovery of the land and after dieth without issue in this case the recoveror shall hold the land discharged of all these estates and charges in remainder But otherwise it is if A himselfe make a lease or enter into a Statute and then suffer a common recovery of the land in this case this recovery doth not avoyd but affirme the lease or charge for whereas it was before voydable by the issue in taile or him in remainder or reversion now it is good against them all and the recoveror also shall hold it charged and subject to the lease and charge of the tenant in taile This kind of Assurance therefore is in some respects better then a fine for a fine will barre the heire in taile but not him that is in the remainder or reversion but a recovery will barre them all In every good and binding common Recovery these things are 5. What shall be said a good Common Recovery And who shall be barred and bound thereby or not West Sym. ubi supra Co. super Lit. 372. requisite 1. That there be a demandant a tenant and a vouchee as the efficient causes thereof for if either of these be wanting it is not a compleat recovery And therefore if a common recovery be had against a tenant in taile without a voucher this is voyd And for this it is to be knowne that such persons and by such names may be demandants tenants and vouchees in recoveries as may be cognisors and cognisees in fines a Benets case Hobarts Rep. 275. Pasc Pasc 9 Jac. Earle of Newports case adjudged And therefore a recovery suffered by an Infant appearing by his Guardian is good and will Infant Woman covert bind him and all others b Co. 10. 43. Plow 515. 2 Doct. stud 52. Co. 5. 40 41. West ubi supra So also a recovery had against a woman that hath a husband being joyned with her husband will bind her and all others 2. That there be land demanded as the matter and that the thing be demandable And for this it is to be known that of such things and by such names as a writ of Covenant for the levying of a fine may be had a writ of entry for the suffering of a recovery may be had save only it may not be de fossato stagno piscaria un ' Carucat ' terre estoveriis homag fidelitat ' de servitiis â—aciendis de bovata marisci de selion ' terre de gardino cottagio crofto virgata terre fodina minerae mercatu nec de superiori camera And yet of some of these also it may be by other names Also a recovery may be had of a rent common advouson franchises and the like but not of an annuity 3. That it be had and Co. 3. 3. stat 23 Eliz. cap. 3. suffered in that order and forme as law requireth viz. that there be a writ of entry brought an appearance of the tenant in fait a voucher and an appearance of the tenant in Law the vouchee Judgement and Execution in manner as aforesaid for if there be any substantiall defect in these things the recovery may be thereby avoided by writ of error but if it be only in forme it will not hurt 4 That there be a lawfull tenant to the Precipe i. that the writ Dier 252. Co. super Lit. 46. 3. 6. of entry be brought against one that at the time of the writ brought is tenant of the â—reehold either by right i. that hath an estate for life at least in the land or by wrong i. that is a disseifor of the land demanded and whereof the recovery is had And therefore Co. 3. 6. super Lit. 46. Lit. Bro. Sect. 519. Plow 514 Doct. Stud. 49. See infra in this case the course is where the land to be recovered is in possession and a fine and a recovery is had of it together the fine is sued out first for this doth make the Conusee tenant of the free-hold of the land and then the recovery is had against him And when the recovery is to be had of a reversion and that there is an estate for life in being
of the land whereof the recovery is to be had for an estate for years or any such like estate will not hinder the suffering of a recovery there the course is to get a Conditionall Surrender from the tenant for life of his estate to him in reversion or remainder to the end that he may be perfect tenant of the Inheritance and then the writ of entry may be brought and the recovery had against him for if a writ of entry be brought against a stranger and he vouch the tenant in taile in possession of the land and so a recovery is had or if there be tenant for life of land the remainder or reversion to another in taile or in fee and a stranger doth bring a writ of entry against him in the remainder or reversion or against a stranger who doth vouch him and so a recovery is had these recoveries are not good And yet if the writ be brought against the tenant of the land and a stranger that hath nothing in the land together and so a recovery be had this recovery is good enough And if a disseisor make a gift in taile of the land to another and the writ is brought against him and he vouch the disseisee and he vouch the common vouchee this is a good recovery 5. That it be in such a case as is not prohibited Stat. 34. H. 8. ca. 20. Co. super Lit. 37â— 2. 5. 16. Co. 8. 77 78. by some Statute law for if the King give any of his owne land Prerogative whereof he is seised or cause or procure another in consideration of money or other land to give the lands whereof he is seised in taile to any of his subjects or servants in recompence of their service or the like the remainder to the King in fee simple or fee taile such estates in taile cannot be barred by a common recovery And therefore if such a tenant in taile shall suffer a recovery of such land it is voyd and it will neither barre the issues in taile nor any of them in remainder nor the King But if the King make such a gift in taile keeping the reversion to himselfe and after doth grant the reversion to another in this case tenant in taile may suffer a recovery and bar the estate taile and the reversion also And where a subject by the Kings provision doth make such a gift in taile and then doth grant the remainder to the King for life or years only in this case the estate taile temainders and reversion also may be barred by a common recovery So in other cases where a subject doth make a gift in taile the remainder to the King in fee this estate taile may be barred by a common recovery And therefore if there be tenant in taile the remainder or reversion in fee to another and he in remainder or reversion by deed indented and inrolled doth bargaine and sell his remainder or reversion in fee to the King or if one covenant to stand seised to divers uses in taile the remainder to the King in fee in these cases the estates and the reversion and remainders depending thereupon may be barred by a recovery So if a man make a gift in taile the remainder in fee and he in the remainder doth grant his remainder to another for life the remainder to the King in fee on condition the estate shall be voyd upon the tender of 20 l. in this case the estate taile and the reversion also and condition thereupon may be barred So if the Duke of Lancaster had made a gift in taile and the reversion had descended to the King this estate taile might have been barred by a recovery So if Prince H. sonne of H. 7. had made a gift in tail the remainder to H. 7. in fee which remainder by the death of H. 7. had descended to H. 8. in this case the tenant in taile might have barred the estate taile by a recovery And yet if the King make a gift in taile the remainder in taile or grant the reversion in taile in these cases a common recovery may not be suffered to barre the entaile remainder or reversion And if the husband for the advancement of his wife in Jointure and the preferment Stat. 〈◊〉 H. 7. cap. 20. Co. 3. 58. 61. 59. of the heires of their two bodies make an estate in taile to him and his wife and the heires of their two bodies and the wife after her husbands death alone by her selfe or with any other husband suffer a common recovery of the land whereof this estate is made this recovery will not barre the estate taile But if in this case the recovery be suffered by the heire in taile or by the heire and his Mother together it is a good recovery And therefore if A be seised of land in fee and he make a feoffement in fee to the intent that the feoffee shall reconvey it to him and his wife and the heires males of his body and this is done accordingly and they have issue a sonne and she surrender or make a forfeiture and he enter and suffer a recovery this is a good recovery and barre to the esate taile or if the writ be brought against the mother and she vouch the heire in taile and so a recovery is had this recovery will barre the estate taile And howsoever at the Common Stat. 14 Eliz. cap. 8. Co. 1. 15. 62. â—0 43. 45. 3. 6. Law a recovery against a tenant for life with a voucher upon a lawfull warranty and a recovery in value was a barre to him in remainder or reversion and there was no remedy in this case yet at this day it is otherwise And therefore if tenant in taile after possibility of issue extinct tenant by the courtesie or any other tenant for life doe suffer their lands to be recovered from them by covin and agreement either as immediate tenants or as vouchees upon feigned titles without the assent and to the prejudice of him in remainder or reversion such recoveries are voyd and will not Forfeiture barre the remainders or reversions but are forfeitures of the estates of such tenants for life Insomuch that if tenant for life be made tenant in fait to the writ or tenant in law upon the voucher and so a recovery be had as if tenant for life make a lease for years and the lessee for years doth make a feoffement in fee and the feoffee doth suffer a common recovery in which the tenant for life is vouched and he vouch the common vouchee these recoveries will not bind the reversions or remainders But there is no provision made at this day to preserve the reversion or remainder expectant upon an estate taile nor to avoyd a recovery of the tenant for life where he in the next remainder is agreeing and assenting to it And therefore if there be tenant for life the remainder to A in taile the remainder to B in
therefore if there bee tenant in taile the remainder in taile or in fee and he in the remainder perceiving the tenant in taile doth intend to sell the land and barre him by a common recovery doth sell his remainder by deed inrolled to the King and after the tenant in taile doth sell the land by common recovery for good consideration in this case the purchasor shall avoid this deed to the King whereby also appeareth that a fraudulent conveyance within this statute may be by way of bargaine and sale And so was it ruled by the Lord Chiefe Justice Hide in evidence to a Jury at Guildhall 3. Car. And if there be a lease for years and the lessor make a fraudulent conveyance in fee M. 4. Jaâ— Cowell Bart. case and then for good consideration maketh another lease to begin at the end of the former lease this conveyance shall be void as to the second lessee And if A make a lease to B for years upon good considerations Per. 2 Iust Hil. 18 Jac. B. R. and after he makes another lease to C of the same thing for the same term to begin at the same time upon good valuable consideration and B doth not discover this but drives this bargaine with C and is witnesse to this second lease and the first lease is not excepted in the second lease it seems in this case the first lease shall be void as to C. And in all these and such like cases albeit the purchasor before he make his bargaine have notice of the fraudulent Co. 5. 60. Co. 3. 83. conveyance yet shall he avoid it as if he were ignorant of it But such conveyances and deeds made as before shall never be said to be fraudulent and void as against him that shall have the thing afterwards if he do not give a valuable consideration for it And therefore if one make a lease that would be fraudulent void as to such a purchasor to A and after make another lease bonâ fide to B but without any rent or fine given for it in this case the first lease shall not be said to be fraudulent as against the second lessee and therfore not void So if one covenant for the advancement of his heirs males c. to levie a fine of land by a day to the use of himself for life and after of his issue male and before the day he make a lease that is fraudulent for many years of purpose and after he doth levie a fine accordingly in this case this lease is good and shall not be said to be fraudulent and void by this Statute as against the issue in taile So if a man that is somwhat foolish and given to wast be perswaded to settle his lands upon some of his friends of purpose to maintaine himself with it and after some of his lewd companions inveigle him and get him for a small sum of mony to conveigh it to them in this case the conveyance first made shall not be said to be fraâ—dulent as against these purchasors and therefore it is good against them And if one that hath a terme for 60. years if he live so long make it away Co. super Lit. 3. and then hee doth forge a lease for 90. yeares absolutely and after by indenture reciting this forged lease for valuable and good consideration doth bargaine and sell this forged lease and all his interest in the land to I S in this case it seems that the first lease is not void and that the purchasor shall have nothing but the forged lease A deed also made of any thing with intent and purpose to deceive Stat. 3 H. 7. 4. 2 R. 2. ch 3. 1â— El. ch 5. Co. 3. 82. 2 To deceive creditors and others of debts and such like duties and defeate Creditors of their just debts and duties is void also as against such persons For it is provided to this purpose by other Statutes That all feoffments gifts grants alienations bargaines and conveyances of lands tenements hereditaments goods and chattells or any rent profit or commodity out of land made by fraud or collusion of trust to him that made the same or otherwise with intent to hinder and delay or put off or put by Creditors or others of their just and lawfull actions suites debts accompts damages penalties forfeitures hariots mortuaries or reliefes shall be void as against them to whom such thing shall belong and hee may recover the thing notwithstanding but all such as are made bonâ fide and upon good consideration are not to be accounted fraudulent by this Statute For the better understanding whereof these cases following are to be heeded If a man a little before his Co. 5. 60. 3. 82. Dyer 295. death make a conveyance of his land to his children or friends of his bloud with a proviso to make it void at his pleasure and he take the profits of it as his own or make a conveyance of it to friends to the intent they shall not be subject to the payment of his debts having bound himselfe and his heires by any especialty or to the intent that a warranty and assets shall not bind his sonne for other land or the like in this case this conveyance shall be void as to them that should have reliefe upon this land by the dissent and especially when the conveyance is made after suites begun and more especially when any judgment is had upon the suits against him that doth make the deed And so also is the law for goods And therefore if one be indebted to A 20l. and to B 40l Co. 3. 80. 83. Bro. Done 20. Plow 54. and be possessed of goods to the value of 20l. and A doth sue the debtor for his 20l. and hanging this suite the debtor secretly makes a generall deed of gift of all his chattels reall and personall to B in satisfaction of his debt and yet doth afterwards continue the occupation and use the goods as his own and after A getteth judgment and execution in this case the deed of gift to B shall be said to be fraudulent and therefore void as against A. So if in this case he give all his goods to B in satisfaction of his debt and before any suite begun by A with any expresse or implicite trust as to the intent that B shall be favourable to the debtor or that if the debtor provide the mony that he shall have the goods again or that he shall suffer the debtor to enjoy and use the goods and pay him as hee can in these and the like cases the deeds shall bee said to bee fraudulent and void for howsoever it bee made upon good consideration yet it is not made bonâ— fide So if one in consideration of naturall affection or for no consideration give all his goods to his child or cousin bonâ fide this shall be a void deed as to the Creditors Et sic de similibus
So if one give all his goods and chattels to his executor in his life time by deed of gift this shall be said to be fraudulent and shall be void as to Creditors And albeit those to whom the deed of fraud is made know nothing of the fraudy yet is the deed fraudulent in that case also as well as where they are privie to it If after a Commission of Bankrupts be sued out the debtor Co. 2. 25. make a deed of gift of all his goods to one of his Creditors in satisfaction of his debt in this case this deed shall be void as against the rest of the Creditors and as to the Commissioners and they may order it with the rest of the estate notwithstanding But if A bonâ fide and for valuable consideration mortgage his land By the two Judges of Assise Aug. 5. Car. in Com. South Lady Lamberts case whereof he hath a term of years to B upon condition that if he repay the mony to B a yeare after that he shall reenter and B doth covenant with A that he shall take the profits of it untill that time c. A doth not pay the money and B hoping that he will pay it in time doth suffer him to continue in possession and take the profits of it two or three years after and in the interim judgment is had against A upon a bond and execution awarded in this case execution shall not be made of this lease for this deed of mortgage shal not be said to be fraudulent as to the Creditor for when a conveyance is not fraudulent at the time of the making of it it shall never be said to be fraudulent for any matter ex post facto If A be seised of the fifth part of the Manor of B and B of the Mich. 19 Jac. Co. B. Miller Potscase 6th part and M cometh to A to buy his part and after M saith to A my Counsell tells me I cannot safely buy of you unlesse B joyn and after B doth grant a rent charge of 15l per annum out of this Manor to C her sonne and the heires of his body in consideration of naturall affection and this was about 1o. Jac. C being then but about three years old with proviso that if D whom B did then intend to mary grant to the said C the like rent of 15l and for the like estate out of 20l. land by the yeare of the land of B then the said grant to be void and after the said A bought the 6th part of the said Manor of B and D her husband being intermaried and after A B and D her husband joyne in the grant to M and in this case it was ruled that this grant to C was not fraudulent and void If one doth hold his land to pay a hariot Co. 10. 56 57. at the death of every one that dyeth tenant in fee simple and he infeoffe his sonne and heire in consideration of naturall affection and mariage to be had between the sonne and I and the son to prevent the Dower of his intended wife during his fathers life makes a lease for forty yeares unto his father if his father live so long and afterwards the mariage is had the father payeth the rent the sonne doth suit of Court for the land and after the father dieth in this case this lease shall not be said to be fraudulent as to the Lord to deceive him of his hariot because it was made to another Stat. 52 H. 3. c. 9. 34 H. 8. ch 5. Co. 6. 76. Lit. Bro. Sect. 59. Plow 49. Co. 8. 164. 9. 129. end A deed also made to defeate the King or other Lord of his 3. To deceive Lords of their wardships c wardship shall be void as to a third part of the thing conveyed And therefore if any tenant that holdeth of the King or any other Lord make a feoffment or other conveyance of his land to defeate and defraud the King or Lord of his wardship primer seisin or any other benefit appointed and preserved for the Lord by the Statutes of 32 and 34 H. 8. shall be void as to a third part thereof against the King or other Lord who shall notwithstanding have their wardship and other benefits as if none such were made As if such a tenant by deed enfeoffe his lineall or collaterall heire within age or make a lease for life the remainder to his heire or make a gift in taile the remainder in fee to his heire or make a feoffment on condition that he shall reinfeoffe his heire at his full age or make a feoffment for the paiment of his debts preferment of his wife and children or infeoffe another to the intent that he shall take the profits till he have an heire male and then to reinfeoffe him all these are fraudulent and void as to a third part of the land and as against the King or other Lord in respect of the benefit they are to have of and by the land But no conveyance in these cases shall be said to be fraudulent and so void for two parts of the land And if one make a feoffment of land to two whereof his heire is one and their heires for mony or other valuable consideration this shall not be said to be a fraudulent conveyance of any part So if such a joyntenant make a feoffment of his moity to a stranger * Dyer 9. Co. 2. 94. And in cases where the feoffment is fraudulent for a third part as before if the feoffee dye or make a feoffment over bonâ fide before the death of the Ancestor in these cases the deed is become good again and the collusion gone If a Dyer 268. Co. 10. 57. man for feare of debts convey his lands to friends with condition that upon payment of 10l they shall convey it to those whom he shall appoint in this case the conveyance shall not be said to be fraudulent as to the King or other Lord for it was done to another end and therefore it is a good conveyance against all men but the Creditors Where deeds shall be void in part or in all for want of inrollment atturnement livery of seisin or the like see afterwards If a deed that is well and sufficiently made in his Creation shall Co. 11. 27. 5. 119. Dyer 59. 261. Perk. Sect. 123. 135. Kelw. 162. Fitz. Release 27. 14 H. 8. 25. Bro. Fait 9. 6 Where a deed good in his creation may become void by matter ex post facto And what will make such a deed void or not 1. By Rasure be afterwards altered by rasure interlining addition drawing a line through the words though they be still legible or by writing new letters upon the old in any materiall place or part of it as if it be in a deed of grant in the name of the grantor grantee or in the thing granted or in the limitation of
and he by writing recite that the defendant hath a terme of years and doth suppose it to begin 1o. Maii 2 Jac. when in truth it doth begin the 20th of August and then sell the same terme in this case this sale is void But if he adde withall these words in the deed And all the interest that the defendant had in the land or if he make sale of it for a certain number of years only this grant may be good notwithstanding the misrecitall If one recite a former lease to be made such a day to I S and Dier 93. 160. then make a new lease to begin after the end of the former lease and mistake the date of the old lease in this case the deed is good notwithstanding this mistake If one grant a reversion and in reciting the lease in possession 8 H. 7. 3. Fitz. Grant mistake the date of it only and recite all the rest truly this will not hurt the grant No more then where a man doth recite that such land came to him by forfeiture and then doth grant it by name for in this case albeit it did not come to him by forfeiture but by surrender yet this mistake will not hurt And yet in case of the King such a misrecitall may make the grant void If I grant to I S all the lands in Dale which I purchased from Dier 50. 87. 376. I D or which came unto me by descent from I D or I give all my goods to I S which I have as executor to I D and in truth I have no such lands or goods but I had them by some other meanes or of some other in these cases and by this mistake the deed is void But if I grant to I S all my lands in Dale by name as white acre which I purchased of I D and in truth I did purchase them of another in this case this mistake will not hurt the deed So if I grant 20. load of wood in Dale in the great wood which I had of the grant of my father and in truth I had not of the grant of my father but of the grant of another in this case the grant is good But of this matter see more in Grant Numb 4. part 5. An Exception is a clause of a deed whereby the feoffor donor 6. Exception Quid. Plow 361. 195. Dier 59. Perk. Sect. 615. Co. super Lit. 47. 3 H. 6. 45. grantor lessor c. doth except somewhat out of that which he had granted before by the deed And this doth most commonly and properly succeed the setting downe of the things granted and is made by one of these words Except ' Preter Salvo Si non or such like And hereby the thing excepted is exempted and doth not passe by the grant neither is it parcell of the thing granted as if a manor be granted excepting one acre thereof hereby in Judgement of Law that acre is severed from the manor But this may be in any part of the deed and so hath it been resolved Hil. 17. Car. B R. Fregunnels case Perk. Sect. 42 c. In every good Exception these things must alwaies concurre 7. What shall be said a good exception or not 1. This Exception must be by apt words 2. It must be of part of the thing granted and not of some other thing 3. It must be of part of the thing only and not of all the greater part or the Plow 19. Co. super Lit. 47. effect of the thing granted 4. It must be of such a thing as is severable from the thing which is granted and not of an inseparable incident 5. It must be of such a thing as he that doth except may have and doth properly belong to him 6. It must be of a particular thing out of a generall and not of a particular thing out of a particular thing or of a part of a certainty 7. It must be certaintly described and set downe As for examples a Plow 195. Perk. Sect. 641. If a man grant al his lands in Essex saving besides or except his lands in dale or all his lands in Dale excepting one house or one acre in certain or one house excepting one chamber in certain these and such like Exceptions are good b Dier 103. Plow 104. 361. 67. Co. 8. 63. 11. 47. 5. 11. Perk. Sect. 642. 3 H. 6. 35. And if one grant a manor excepting one Tenement parcell of the manor or excepting the Services of I S who doth hold of the manor or excepting one Close or excepting one acre or excepting the Advowson appendant or excepting the woods or excepting twenty acres of wood or excepting all the grosse trees these are good exceptions c 14 H. 8. 1. And if one grant a mesuage and houses thereunto belonging excepting the barne or excepting the dovâ—house it seemes this is a good exception for they may passe by the grant of a mesuage c. d Co. 8. 63. 5. 23. And if one grant land excepting the Timber trees thereupon or excepting the trees thereupon or if a man sell a wood excepting 20. of the best oakes and shew which in certain these are good exceptions e In the case of Haward Fulcher. Hil. 3. Car. B. R. So if one have a manor wherein is a wood called the great wood and he grant his manor excepting all the woods and underwoods that grow in the great wood and all the trees that grow elsewhere this is a good exception f Co. 11. 64. And if one grant a mesuage and all the lands and tenements thereunto belonging excepting one cottage this is a good exception g Perk Sect. 113. 644. Dier 157. And if one grant a reversion excepting the rent this is a good exception of the rent and doth keep it from passing by the grant So if a man have a a rent charge out of land and he release his right in the land except the rent So if the Lord release to his Tenant Salvo dominio suo c. these are good exceptions h Plow 361. And if one grant all his horses except his white horse this is a good exception of the white horse i 3 H. 6. 45. Perk. Sect. 643. And if a man be seised of a manor and lease it by deed indented for life exceptis reservatis quod bene liceat to the lessor succidere dare vendere omnes grossas arbores in dicto manerio crescentes c. it seemes this is a good exception of the trees But if the exception be of another thing then the thing granted k Perk. Sect. 639. Dier 59. Plow 361. 67. 370. As if one grant a manor or land excepting 12 d. or excepting the Tithes or excepting one acre of ground which is no parcell of the manor or of the land before granted or if one grant the land descended to him of the part of his
recovery as in the case of Alienation in Mortmaine In the case of exchange also there is a condition in law for which see Exchange It is a generall rule That when a man hath a thing he may condition 21 H. 7. 24. Perk. Sect. 707 708. c. 3. What things may be made and done upon Condition And to what things a Condition may be annâ—xed Or not And how it may be made and annexed thereunto with it as he will Conditions in deed therefore may be annexed to things inheritable to frank tenements or to chattells reall and personall as for example If a feoffement in fee gift in taile or lease for life be made of lands or tenements or a grant be of a rent Common or the like thing in feesimple feetaile or for life these things may be done upon condition So a lease for years of land or a grant of a rent c. for years may be made upon condition And a lease may be made for five years on condition that if the lessee pay to the lessor within the first two years 10. markes that then he shall have the fee otherwise but for five years Also a Gardian in â—hivalry may grant the wardship of the body and land or either of them on condition A tenant by statute Marchant Perk. Sect. 281. Co. super Lit. 274. Perk. Sect. 724. Co. 8. 98. Dier 242. Staple or Elegit may grant their estates upon condition The Lord may grant his Seigniory to his tenant on condition The tenant for life may grant his estate to his lessor or him in reversion upon condition The King may make letters Patents of denization to an alien or a â—harter of pardon to a man for his life upon condition Also releases and confirmations may be made upon condition And a submission to an award may be upon a condition But an Institution to a Benefice or an induction may not be Co. 2. 74. on a condition An atturnement or an expresse Manumission of Co. super Lit. 274. a villaine cannot be upon a condition subsequent as it may be upon a condition precedent And a condition cannot be released upon a condition as some hold But the contrary is held by others cleerly and that there is no difference between this and a release of a right Ideo quere An award cannot be made on a condition as was held in Sherers case 35 Eliz. A contract or sale of a Chattell Perk. Sect. 712 713. personall as an oxe or the like may be upon condition as if A sell his horse to B that if A doe such an act then that B shall pay 5 l. at the day agreed upon otherwise but 4 li. So if I agree with a Physitian that if he cure such a disease he shall have so much and in this case he cannot have the money untill he have done the cure As where I promise a man 10 l. when he hath built such a house in this case he cannot have the money untill the house be built Also retaining of servants delivery of Charters and divers other things may be done upon condition And if an Executor assent Co. 4. 28. to a legacy upon a condition the assent is good but the condition is void And conditions annexed to estates in all the cases before Lit. Sect. 365. Co. super Lit. 161. 216. howsoever they are most frequently and safely made by deed in writing yet it seemes such conditions may be made and annexed to any estate of a thing grantable without deed without any writing Doct. Stâ— 16. Perk. Sect. 715. at all howsoever in some cases it cannot be well pleaded nor used without a deed for it is a rule That if a condition be pleaded in any action to deâ—eat a freehold the deed wherein the condition is contained must bee shewed But of chattels reall as leases for years and the like or grants of chattels personall a man may plead that such leases and grants were made upon condition without shewing the deed And in the first case also of a condition to avoid a freehold it may be given in evidence to a Jury and they may finde the matter at large as it is and so the party may have advantage of the condition without shewing any deed of it Also the Co. 5. 40. pleading of a feoffment in fee on condition without deed and re-entry is good if the party confesse the condition A condition may Co. 8. 90. be annexed to a limitation of uses and thereby the same may be made void See Vse The nature of an expresse condition annexed to an estate in generall Co. super Litt. 186. Perk. Sect. 818. Litt. Sect. 358. Dier 6. is this That it cannot be made by nor reserved to a stranger 4. The nature of a condition in deed and of a limitation but it must be made by and reserved to him that doth make the estate And it cannot bee granted over to another except it be to and with the land or thing unto which it is annexed and incident And so it is not grantable in all cases for the estates of both the parties are so suspended by the condition that neither of them alone can well make any estate or charge of or upon the land for the party that doth depart with the estate and hath nothing but a possibility to have the thing again upon the performance or breach of the condition cannot grant or charge the thing at all And Dier 298. Co. 8. 44. Perk. Sect. 818 819. if he that hath the estate grant or charge it it will be subject to the condition still for the condition doth always attend and waite upon the estate or thing whereunto it is annexed so that although the same doe passe through the hands of an hundred men yet is it subject to the condition still And albeit some of them be persons priviledged in divers cases as the King infants and women covert yet they also are bound by the condition And a man that comes to the thing by wrong as a disseisor of land whereof there is an estate upon condition in beeing shall hold the same subject to the condition also And when the condition is broken or performed Dier 117. Co. 10. in Mary Portingtons caâ—e Super Litt. 230. Litt. Sect. 374. Perk. Sect. 564. so 108. Litt. â—o 224. Dier 127. Co. super Litt. 224. c. the whole estate shall be deâ—eated So that if there be a lease for life made by deed and not by will the remainder over in fee on condition that the lessee for life shall pay ten pound to the lessor if the lessee pay not this ten pound the estate in remainder is avoided also Et sic è converso unlesse by speciall limitation it be otherwise provided as if A grant by â—ndenture land to B for life the remainder to C in fee rendring rent to A and his heires with condition that
the like it must be done at the time agreed upon and set down in the condition And in cases where it is to be done before a time certain it must be done before that time or else the condition is broken But in all cases where no time is set for the doing of the thing contained in the condition be it to pay money make an estate or the like if the act to be done bee to be done to the party that doth make the estate or be to be done to him and a stranger and be such a thing as is for the benefit of him that doth make the estate and for his benefit only there regularly the party that is to doe the thing shall have time to doe it during his life unlesse the party feoffor c. that doth make the first estate whereunto the condition is annexed doth hasten the doing thereof by request for if he request the doing thereof and set no time it must be done within a convenient time after that request and if he request and prefixe a time convenient when he doth desire to have it done it must be done at that time and in these cases the condition cannot be broken without a request so long as he to whom the estate upon condition is made be living And therefore To pay mony Testament in this case it is not like to a condition made by a Wil for if one devise his land to I S so as he pay the twenty pound to I D the Testator doth owe him and no time is set for the payment thereof in this case he must pay it as soon as it is demanded or he doth forfeit the land and the heir may enter But if the thing to be done be to be done to a stranger and be for the profit and benefit of a stranger only as if a feoffment be made on condition that the feoffee shall To mary I S. mary the daughter of the feoffor or on condition that the feoffee shall infeoffe a stranger and no time is set for the doing hereof in To infeoffe these cases the feoffee shall not have time during his life to doe it but he must do it in a reasonable time and that without any request at all or else he doth break the condition And in some speciall cases when the act to be done is to be done to the party himself the party shall not have time to doe it during his life as if one grant land To grant an Advowson or a rent to I S on condition that he shall grant an Advowson to the grantor for his life or on condition that he shall grant a rent charge to the grantor during his life to be paid at Michaelmas and our Lady day in these cases the grant of the Advowson must be before the Advowson fall and the grant of the rent must be before either of the days of payment come and that without request else the condition is broken And if the condition be that if I S do such an Perk. Sect. 9. 798. act that then the feoffee shall pay ten pound to the feoffor else To pay mony that the feoffor shall reenter and no time is set when the feoffee must pay this ten pound in this case it seems the payment must be as soon as the same act is done and that without any request at all And in case where the feoffee c. or a stranger be to doe an Co. super Litt. 209. act and he alone is to doe it and it doth nothing concern the feoffor c. as to goe to Rome or the like there the feoffee c. or stranger shall have time during his life to doe the thing and it cannot be hastned by request If lands be granted on condition that the grantee shall make a To make a lease Co. super Litt. 220 222. lease for life of other lands to the grantor the remainder to a stranger in this case the feoffee shall have all the time of his life to doe it if hee be not hastned by request But if the condition be to make a gift in taile to a stranger the remainder to the feoffor in this case it must be done in time convenient without request If the King licence his tenant to infeoffe A and B so as they give the land again to the feoffor and the heirs males of his body and he make a feoffment accordingly in this case it must bee reconveyed before the death of the feoffor or else the condition is broken If A infeoffe B of black acre on condition that if C infeoffe B Co. super Litt. 208. of white acre A shall reenter in this case C shall have time to do To infeoffe this during his life if B doe not hasten it by request If a lessee grant his estate to a stranger on condition that the To geâ— the good will of I S. Perk. Sect. 795. grantee doe get the good will of the lessor and no time is set when he shall get his good will it seems in this case he shall have time to get his good will during the terme and that although he deny it at the first yet if he grant it afterwards that this is sufficient When a time is set in certain for the payment of mony or the doing of any other thing generally neither agent nor patient are Litt. Sect. 342. Co. super Litt. 213. bound to aâ—â—end any other time And if the thing be to be done on a day certaine but no houre of the day is set down wherein the same shall be done in this case they must attend such a distance of time before the Sun set as may be convenient to doe that worke in And if the condition be to pay money at a place certain at any To pay money time during life in this case the money may not be tendred at any time in the place in the absence of him that should receive it but he that is to pay it must give notice to the other party before hand what time he will tender it that the other may be ready to receive it Or if at any time the parties hap to meet at the place a payment or tender then at that place is sufficient And the same law is for Obligation the most part in conditions of obligations In cases where a place is set down for the doing of the thing contained 3. In respect of place Co. super Litt. 210 211. 213. Litt. Sect. 343. 345. Bio Condition â—0 in the condition there it must always be done at that place unlesse by some agreement made between the parties afterwards another place be appointed otherwise the condition is not performed and the parties are not bound to attend in any other place But in cases where there is no place set down for the doing of the thing contained in the condition if the thing to
be done be a corporall service as to pay money or any such like thing the party that is to doe it must at his perill seek out the person to whom it is to be done if he be infra regnum Angliae but if he be not within the kingdome he is not bound to seek him and yet the condition is not broken And if the thing to be done be either locall i. such a thing as must be done in or at a place certain as the making of a feoffment of land payment of rent or the like in this case the To pay mony thing must be done at that very place and a tender of doing it in that place is a sufficient performance of the condition as for examples If a feoffment be made on condition that the feoffee shall pay to the feoffor twenty pound on Easter day at Dale and the feoffee tender the twenty pound the same day at Sale And albeit the feoffor be at Sale and he tender the twenty pound to his person there the same day yet this is no performance of the condition And if a feoffment be made in mortgage on condition for the payment of money at a day and no place is set for the payment thereof in this case the mortgagor must seek the mortgagee and tender it to his person at his perill and tender of the money upon the land mortgaged is not a sufficient performance of the condition And if a feoffment be made on condition that the feoffee shall infeoffe To infeoffe the feoffor of white acre in Dale in this case the feoffment or the tender of it must be in Dale and cannot be elsewhere and a tender of it there is sufficient to perform the condition So if the condition To acknowledge satisfaction be that the feoffee shall in Easter Terme next acknowledge satisfaction upon a Judgement in the Kings Bench this must be done there and cannot be done elsewhere So if a feoffment in fee bee made of white acre rendring rent to the feoffor and his heirs on condition that if the rent be not paid the feoffment to be void and no place is set for the payment of it in this case the feoffee is not To pay rent bound to tender his rent any where for the saving of the condition but upon the land and a tender there is sufficient And if a man make a feoffment in fee without any reservation of rent precedent in the deed on condition that the feoffee and his heirs shall render a yearly rent of twenty shillings a year to the feoffor and his heirs and if they fail that the feoffor shall reenter in this case also it seems the payment or tender must be upon the land But if the condition be that he shall â—ender twenty shillings a year to a stranger and his heirs this is no rent nor in the nature of a rent and therefore in this case the feoffee must tender it to the person of the stranger where he can find him at the day or else hee doth break the condition and tender upon the ground is not sufficient But in these cases if the nature of the thing to be done be such as will not admit of such a cariage from place to place to seek out the person of the feoffor c. there albeit the thing to be done be corporall or transient and not a locall thing yet that is to doe it shall not be bound to seek out the person of the other as for example If an estate be made on condition that the grantee shall To deliver wood or corn deliver twenty quarters of wheat or twenty load of wood to the grantor at such a time and no place is set for the doing thereof in this case the grantee is not bound to cary the same about to seek the feoffor or grantor as he is bound to cary money but before the day the grantee is to know of the grantor where he will appoint to receive it and there it must be tendred And the like law is for the most part in conditions of obligations It is best therefore in all these cases and herein he that is to be Obligation A Caveat the agent is to take care to have certainty of time and place set down in the condition for the doing of the thing that is to bee done and the more certain it is the better it is for him If a lease be made on condition that the lessee shall pay to the Per Just Bridgeman lessor all such sums of money as the lessor shall lay out in such a 4. In respect of other matters To pay mony businesse in this case the lessor must first tender to the lessee a note of the charges before the lessee is bound to pay and untill this be done the condition cannot bee broken And after a note is given also he shall have some reasonable time to provide the money And if he tender him a note of more then in truth he doth lay out the lessee if he know it may pay so much as is laid out and he may refuse to pay any more If lands be granted upon condition that A shall make an estate To make an estate Co. 5. 22. of lands at the charges of B in this case A must doe the first act viz. notifie to B what assurance he will make before B is bound to tender the charges If a feoffment be made on condition that the feoffee shall give so To deliver houshold stuffe or pay money Pasche 17. Jac. B. R. much houshold stuffe to the feoffor or so much mony for it as it shal be rated at by two indifferent persons to this end to be chosen it seems in this case the election of the two men must be by the feoffee but if the words be by two persons to be indifferently chosen then the election shall be by both parties for in the first case the word Indifferent doth goe to the praising not to the persons If a feoffement be made of a ground on condition that the feoffee To clense ditches 27 H. 8. 1. Plow Colthirsts case 21. shall â—ake the ditchâ—s in this case if the feoffee doe it once it is a sufficient performance of the condition And yet if a man grant a house for life on condition that the lessee shall dwell and be resident in the house during the said terme in this case it is not sufficient To dwell in the house that he dwell in it once during the terme but must doe so all the terme or else the condition is broken If an annuity be granted of tenne markes per Annum to a man on Perk. Sect. 804. condition or till he be promoted to a benefice by the grantor and it is not said of what value the benefice shall be in this case it shall be taken for a benefice of as great value and of as good an
that the feoffee shall purchase Perk. Sect. 807 808. 21 H. 6. 28. Dier 15. lands or tenements to the value of twenty pound per Annum To purchase lands and he purchase a rent common or any such like thing to that value this is a good performance of the condition But if in this case the feoffee and another purchase so much land together jointly this is no good performance of the condition So if the feoffee alone purchase lands to the value of twenty pound per Annum and there is a rent issuing of it which must be deducted this is no good performance And yet in these cases if the stranger Jointenant release to the feoffee all his right in the land or the grantee of the rent release to him the rent before the time of the performing of the condition the condition is well performed in both cases Tantum valet terra quantum vendi potest And if one make a feoffement Perk. Sect. 812. in fee on condition that if the feoffee purchase land to the value of twenty shillings the feoffement shall be void and after the feoffee disseise another man of land to that value it is said that by this the condition is performed Sed quere And that if he recover so much land in value in an action that this is no performance of the condition Sed quere For this seemes to me a better performance Payment of the condition then the former To pay mony Tender If lands be granted on condition to pay money and the money Dier 181. Lit. Sect. 334 335. 338. Co. super Lit. 209. is tendred according to the condition but either no body is ready to receive it or it is refused this is a good performance of the condition And after a man hath once refused the money so tendred to him according to the condition he hath no remedy in law â—o recover it except it be money lent upon a mortgage a Termes of the law tit coine And if the payment be made part of it with counterfeit Coine and the party accept it and put it up this is a good payment and consequently a good performance of the condition b Co. super Lit. 212. Fitz. Barre 343. And if at the day of payment the parties doe account together and he to whom the money is to be paid being indebted to the other that debt by agreement Acceptance is allowed and the residue is paid and accepted this is a good performance of the condition c Co. super Lit. 212. So if the party that is to receive it accept and take new security by bond or statute for the money this is a good performance of the condition d Dier 45. Co. 5. 96. And so in most cases when by a condition a thing is to be done one way and to be done to the party to the condition himselfe and not to a stranger and he doth accept it another way this is a good performance of the condition VoleÌ„ti non fit injuria But if the thing to be done be to be to a stranger one that is no party to the condition and it be done in any other manner and he accept thereof this is no performance of the condition And so also if the time of doing the thing be past as if one make a feoffement to me on condition that if he pay me tenne pound such a day the feoffement shall be Perk. Sect. 392. void and he doth not pay me at the day but doth die and after by agreement between his heire and me me doth pay me the tenne pound and I receive and accept it and thereupon I suffer him to enter and hold the land in this case the condition is not performed but I may enter upon him and out him notwithstanding If the mortgagor pay the money according to the condition and Adjudge Mich. 40. 41 Eliz. B. R Powel versus Bartholomew after the mortgagee deliver it to the mortgagor as his own money the condition is performed and the mortgage discharged notwithstanding If a feoffement be made to I S on condition that if the feoffor pay to the executors or administrators of I S tenne pound the Co. 5. 96. super Lit. 209. feoffement shall be void and I S die and the tenne pound is paid to the executors of I S according to the condition but it is covinouâ—â—y done i. there is a private agreement that the feoffor shall have all or part of his money againe this payment in this case is no good performance of the condition but that payment that must be a performance of a condition in this case to fetch lands out of the hands of an heire must be reall full and effectuall If a lease be made on condition that the lessee shall get the To get the good will of I S. 14 H. 8. 17. good will of I S and the lessor doth come to I S first and aske his good will and he denie it him and after when the lessee doth aske it he doth grant it him in this case the condition is performed So if the condition be that he shall get his good will by such a day and at the first being desired he denieth it but afterwards and before the day he doth grant it And yet if no day be set and he desire his good will and I S denieth it and afterwards he doth get his good will it seemes this is no performance of the condition If there be two things in the copulative to be done by the condition Perk. Sect. 746 See before both must be done otherwise the condition will not be performed If a feoffement be made on condition that if the feoffor and I S Co. super Lit. 219. pay tenne pound at Michaelmas the feoffement shall be void 2. When the act is to be done by a stranger to pay money 3. When the act is to be done to a stranger To make an estate and before the day the feoffor die and I S pay the money this is a good performance of the condition But if the feoffor be living contra If a feoffement be made on condition to make an estate to a Plow 133. Co. 3. 64. stranger by a day and before the day he die in this case if an estate be made as neere the condition as may be it is sufficient * Tender If a feoffement be made to I S on condition that he shall infeoffe Co. super Lit. 209. 19 H. 6. 67. Perk. Sect. 815 816. 2 E. 4. 2. 19 H. 6. 67. I D and his heires and I S doth tender the feoffement to I D and he doth refuse to take it this is no performance of the condition in this case But if it be to be done to the feoffor himselfe contra And so also it is if the condition be to make an estate taile or any lesser estate to a
for life years in present or future or for one yeare or by taking a wife whereby shee may be intitled to dower or by suffering a recovery of the land or by granting of any rent Common or the like or by entring into any Statute c. or by suffering any Judgement to be had against him or by doing any other such like act whereby he cannot convey the land according to the condition in the same plight quality and freedome it was at the time of the conveyance made in either of these cases the condition is ipso facto broken And albeit the land be afterward discharged and the party againe enabled before the day to performe the condition yet this will not salve the breach And so also it is of a limitation But when the condition is to be performed of the part of the feoffor or grantor there disability before the time will not hurt so as he be againe enabled at the time And so also it is when the condition is to be performed of the part of the feoffee and there is no certaine day set for the performance of the thing for in this case albeit he be once disabled yet if he be afterwards againe enabled and doe it within the time that the law doth give him to do it in this case the condition is not broken And so also it is if the feoffee be disseised and during the disseisin he doe any such act as before in this case before his entry this is no breach of the condition for till then the charge doth not binde the land And so likewise it is when the disability doth proceed from another cause as where one doth make a feoffement on condition that the feoffee shall reinfeoffe before such a day and before the day the feoffor disseise the feoffee and keepe him out till the day be past or one doth make a feoffement on condition the feoffee shall marry B before such a day and before the day the feoffor himselfe doth marry her so that the feoffee cannot performe the condition in these cases the condition is not broken If one make an estate of lands held in Capite on condition Trin. 13 Jac. Slade versus Tompson B. R. To imploy the profits to charitable uses that he to whom it is made shall imploy the profits thereof to divers charitable uses and he die his heire within age by reason whereof the King hath the land during the minority of the heire so that the profits cannot be employed this is no breach of the condition If one make a feoffement of land on condition to reinfeoffe To reinfeoffe Co. 1. in Porters case in convenient time and the feoffee doth not so but doth make a lease to another this is a double breach of the condition And the same Law is of a Devise by will in this manner If a feoffement be made upon condition that the feoffee shall To make an estate Perk. Sect. 796. Co. 8. 90 See the parable Mat. 21. 28. make some estate to the feoffor or some other by a day and the feoffee before the day say to him to whom the estate is to be made that he will never make the estate notwithstanding he doth make the estate before the day according to the condition in this case it is said the condition is broken Sed quere of this for it seemes if he really deny it before and actually performe it at the day that this is a good performance of the condition As if a lease be made of a house on condition that the lessee shall not disturbe the lessor in the taking a way of his goods out of the house and To suffer one to take his goods when the party doth come or send to fetch them the lessee doth only forbid them this in this case is no breach of the condition and it was agreed in this case that words without some deeds as shutting the dore against them forcible resistance or laying of hands upon them or the like are no breach of such a condition And if a lease be made on condition that the lessor shall be 3 H. 4. 8. foure times a yeare in the house demised without being ousted by the lessee and the lessee seeing him comming doth shut the dores To suffer one to come into a house or windowes against him this hath been thought to be no breach of this condition If a lease be made on condition that the lessee shall pay yearly Dier 33. To pay a yearly rent or sum to the lessor during the terme tenne pound in this case if he faile of payment once the condition is broken and estate forfeit So if one make a feoffement in fee of land on condition to pay tenne pound yearly to I S if he faile once the condition is broken If a lease be made of a Manor in which are divers Copyholders Not to molest Copiholders Penner versus Glover 37 38 El. Mich. B. R. per curiam on condition that the lessee shall not molest vex or put out any Copiholder paying his duties and services in this case if the lessee enter upon and put out any one Copiholder this is a breach of the condition But if he enter vi armis upon a Copiholders tenements and there beate him only or the like this is no breach of the condition If there be a condition to pay rent and the lessee let part of To pay rent Crompt Jur. 64 65. the land to other undertenants or let all the land to another for part of the time and he undertake the rent still and faile of payment in this case the condition is broken and estate forfeit But if there be any covin and practise in the case between the first lessor and the lessee the undertenants may perhaps have relief in equity Equity If one make a lease for years of land and then also make a feoffement Co. 8. 90. in fee of the lands on condition that if the lessee be disturbed Not to disturb bed in his terme that he shall have the fee simple and he is disturbed by the feoffor or by his meanes in this case the condition is broken and the lessee shall have the fee simple But if the disturbance be by a stranger and not by the feoffor or by his meanes or consent this is no breach of the condition If a lease be made on condition that the lessee shall not be out-lawed Not to be outlawed Per 2. Justices H. 7 Jac. B. R. and he is outlawed without proclamation it seemes this is no breach of the condition because the outlawry is not good If a condition possible at the time of creation become after impossible Lit. Sect. 352. Co. 2. 59. in part by the act of God and the party doe not performe that which is possible the condition is broken If a man make a lease for years
part of the mother shall enter upon him and enjoy the land And if a man be seised of land in the right of his wife and he make a feoffement in fee of it upon condition and die the heire of the husband shall enter for the condition broken but the wife shall have the land And so also is the law as touching Privies in right and representation for Executors and Administrators shall take advantage of a condition now as heretofore And so also shall the Successors of a Deane and Chapter Bishop Arch-deacon Parson Prebend or any body Politique or corporate Ecclesiasticall or Temporall these shall take advantage of conditions as heretofore they did So also the law is the same as touching Privies in law for they shall no more take advantage of a condition now then heretofore But as touching grantees of reversions and Privies in estate there is some alteration made of the Law for by a new law it is provided That all persons which Sat. 32 H. 8. cap. 34. shall have any grant of the King of any reversion c. of any lands c. which pertained to Monasteries c. as also all other persons being grantees or assignees c. to or by any other person or persons and their heires executors successors and assignes shall have like advantage against the feoffees c. by entry for not payment of rent or for doing wast or for other forfeiture c. as the said lessors or grantors themselves ought or might have had And for the true understanding of the sense of this Statute Co. super Lit. 214. Plow 27. and the ancient Common law further touching this point 1. These diversities must be observed to be taken before the Statute which take place still 1. Between a condition that doth require a reentry and a limitation Co. 10. 36. F. N. B. 201. that doth ipso facto determine the estate without entry for albeit a stranger might not take advantage of the first yet he might take advantage of the last by the Common law And therefore if a man at this day make a lease to another quousque or untill I S come from Rome or if a man make a lease to a woman quamdiu casta vixerit or if a man make a lease to a widow si tamdiu in pura viduitate viveret or if a man make a lease to another for one hundred years if he live so long and then the lessor doth grant the reversion to a stranger in all these and such like cases the grantee of the reversion may take advantage of the limitation for after the estate is ended by the limitation he may enter 2. Between a condition annexed to a freehold and a condition Co. 3. 64 65. Co. super Lit. 214. 11 H. 7. 17. Plow 136. annexed to a lease for years for if before the Statute a man had made a gift in taile or lease for life on condition that if the donee or lessee did not pay tenne pound by such a day the gift or lease should be void or cease in this case the grantee of the reversion could not by the common law have taken advantage of the condition for it could not be void or cease but by entry which could not be transferred to another But if a lease for years had been made on such a condition a grantee of the reversion might by the common law have taken advantage of this condition for the estate in this case was by the breach of the condition ipso facto void without entrie But now the grantee of the reversion shall have advantage of the condition in both these cases 3. Between a condition in deed and a condition in law for by Co. super Lit. 214. the very common law not only the grantee of the reversion but also the Lord by Escheat may either of them have advantage of a condition in law for any breach in his owne time 2. These Resolutions and Judgements upon the Statute must be marked 1. That the Statute is generall and the grantee of the revesion Co. super Lit. 214. Co. 5. 13. of every coÌ„mon person as well as the King may take advantage of conditions 2. That the Statute doth extend to grants made to the successor of the King aswell as to the King albeit he only be named in the Statute 3. That he that comes to the reversion by fine feoffement grant limitation of use common recovery or bargaine and sale is such a grantee as is within the intendment of the Statute 4. That where the Statute doth speake of feoffees c. that it doth not extend to gifts in taile and therefore if a gift in taile be upon condition and after the donor doth grant the reversion this grantee shall never have any benefit of this condition 5. That where the Statute doth speake of grantees and assignees of the reversion that hereby an assignee of part of the state of the reversion may take advantage of the condition as if lessee for life be and the reversion is granted for life c. or if lessee for years be c. and the reversion is granted for years c. in these cases the grantees of the reversion shall have advantage of the conditions * Davy and Mathews case per. 2 Justiâ—es Trin. 1â— 1 Jac. B. R. So if a lessee for one hundred years make a lease for tenne years rendring rent with condition of reentry and the first lessee doth afterward grant his terme and estate to I S in this case I S is such a grantee and assignee of the reversion as shall take advantage of the condition 6. That as well mediate as immediate grantees i. the grantees of grantees in infinitum are intended within Co. 5. 112 113. Co. super Litt. 214. this Statute 7. That a grantee of part of the reversion cannot take advantage of a condition by this Statute And therefore is a lease be made of three acres reserving rent upon condition and the reversion is granted of two of the three acres in this case the Prerogative rent shall be apportioned but the condition is destroyed except it be in the Kings case And yet a condition may be apportioned ApportionmeÌ„t by the act of law or by the wrong of the lessee As if a lease be made of two acres the one of the nature of Burrough English and the other at the Common law upon condition and the lessor having issue two sonnes dieth in this case each of them shall enter for the condition broken And if the lessee upon condition make a feoffment of part of the land this doth not destroy the condition There is therefore herein a difference between a condition Power of revocation that is compulsory and a power of revocation that is voluntary for he that hath such a power may by his own act extinguish it in part by levying a fine of part of the land or
that hath no title and in the second case any person that shall claim under another and hath title or that shall claim under the lessor claim or enter or otherwise disturbe the lessee this is held to bee no breach of the covenant Sed quere of the first case for herein some conceive a difference Co. 4. 80. Dier 328. Per Furner at Lent Assise Glouc. 23 Car. betweene a covenant in deed and a covenant in law and that howsoever the covenant in law is extended only to evictions by title yet that the covenant in deed shall be extended further And therefore that if A make a lease for years to B and doth covenant that B shall quietly enjoy it during the term without the interruption of any person or persons that if a stranger in this case that hath no right doth interrupt B that he may have an action of covenant as when such a promise is by word an action of the case will lie upon it And if the lessor covenant with his lessee that he hath not done Curia Jervis versus Peade Mich. 40. 41 El. B. R. Action of the case any act to prejudice the lease but that the lessee shall enjoy it against all persons in this case these words against all persons shall refer to the first and be limited and restrained to any acts done by him and no breach shall be allowed but in such an act Co. 5. 17. 22 H. 6. 52. Co. 4. 80. Dier 257. The covenant in law upon the words Demise or Grant also for the quiet enjoying of the thing demised is generall against all persons that have title during the Terme and extendeth to the heir after the death of the lessor as against himself onely and shall charge the Executors or Administrators for any disturbance in the Executors life of the covenantor but not for any disturbance afterwards he that doth sue therefore upon this covenant must shew that he was molested or evicted by one that had an elder title If one doth covenant to enter into bond for the quiet enjoying of Co. 5. 78. land and doth not say what bond in this case it shall be taken to be a bond of so much as the land to be enjoyed is worth A warranty in a lease for years shall be taken for a covenant for Fitz. Covenant 21. â—ee before 7 E. 4. 6. Bro. Grant 164. quiet enjoying If one covenant with another to acquit him of all charges issuing out of the land and after by Parliament the tenth part of the To free from incumbrances and charges value not of the issues of all lands are given to the King in this case it seems the covenant shall not extend to this But if the Parliament had given the tenth part exituuÌ„ terre the covenant would have extended to this as well as to rents commons and such like things wherewith the land is charged If A covenant with B to make such assurance or such further assurance Co. 5. 19. of land as the Counsel learned in the law of B shall advise To make assurances of land in this case albeit B be learned in the law himself yet he may not devise this assurance but some other learned in the law must advise otherwise A is not bound to make it And if A covenant with B to make such assurance of land by Co. 5. 19 20. Dier 361. per Just Bridgeman a day as B or his heirs shall devise in this case B or his heires must first devise the assurance before A is bound to doe any thing And therefore if one sell land for money and the vendee doth covenant to make back to the vendor and his heirs such assurance of the land as the Counsell of the vendor shall devise within one yeare provided that if the vendee make default in the assurance then if he doe not pay twenty pound to the vendor that then the vendee shall stand seised to the use of him and his heires and the vendor tender no assurance the twenty pound is not paid in this case the land is in the vendee freed from the covenant And therefore in these and such like cases where a man is to make such assurance as A or his heirs or their Counsel shall devise A or his heirs must take care that in time they have an assurance reasonably drawn and ready to be sealed and to tender it to him that is to seale it for untill then there can be no breach of covenant But if A bee bound to make a feoffement lease or other assurance of land to B by a day in this case B need not to demand it or tender the assurance for A at his perill must doe it otherwise he doth breake his covenant a Trin. 20 Jac. B. R. Steed versus Spike And yet if in this case B doe get the assurance drawn and tender it to A it seemes A is bound to seale it or otherwise hee doth breake his covenant * Co. 5. 20. 22. And if the case bee so that A is bound to make such assurance to B by a day at the costs of B in this case A must doe the first act viz. notifie to B what manner of assurance he will make that he may know what money to tender and when the money is tendred A must see that hee doe make the assurance accordingly at his perill and if he fail in either of these the covenant is broken If A be bound to make such assurance to B as by the Counsell Co. 5. 20. learned of B upon request made shall be devised in this case it is sufficient if the advise be given to B and that he do make it known to A and it is not needfull it be given to A immediately And if Dier 338. Co. 2. 3. A covenant with B to make such assurance to B as I S shall devise and I S doth devise a reasonable deed of bargain and sale and hee tender it to A to seal in this case A is bound to seal it presently and he shall not have time to advise with his Counsell upon the deed but if he be illiterate and cannot read the deed he may refuse and delay to seal it untill he can get some body to reade it which he must doe as soon as he can And if one bee bound by Experientia covenant to make an assurance upon request the covenantee must request and tender an assurance also and he must tender such a one also as is reasonable otherwise the covenant will not bee broken by the refusull or neglect to doe it as if one be bound to make a feoffment to A upon request in this case A must get a naked deed of feoffment drawn without warranty or covenants and tender it And if the covenant be to make such a lease as the former in this case the second lease must not differ from the former
bargaine and sell land by deed indented to B and before the That the covenant or is seised of a good estate c. deed is inrolled I grant the same land to C and covenant that I am seised of a good estate of it in fee and after the deed is inrolled in this case the covenant is broken If A let land to B and covenant that he shall quietly enjoy it Mich. 8 Jac. Lams case Dier 328. F. N. B. 145. 26 H. 8. 3. Hil. 39 Eliz. B. R. Cornes case Fitz. Covenant 26. Bro. Covenant 40. without the let of any person whatsoever and A himselfe or any For quiet enjoying other person that hath any title to the land by or under him as if he make a lease of it or granta rent out of it to another or any other person that hath any title to the land albeit it be not by or under A as if A were a disseisor and the disseisee doe enter or disturbe B in all these cases the covenant is broken And so also is the law deemed to be by some in case of covenant in deed for quiet enjoying where a stranger or one that hath no title to the land doth enter or disturbe B. But otherwise it is in case of covenant in law for quiet enjoying for in this case if a stranger that hath no title to the land doth enter or disturbe the lessee this is no breach of the covenant in law And in all cases where any person hath title the covenant is not broken untill some entry or other actuall disturbance be made by him upon his title If a man make a lease of land and after make a feoffement of 20 Jac. Bro. Covenant 7. the same land and the feoffee doth disturbe the lessee in this case it hath been said this is a breach of the covenant for quiet enjoying Sed quere If a man purchase land to him and his wife and his heires in fee Hil. 20 Jac. adjudg B. R. Butler versus Lady Swinerton and then make a lease for years of it to I S and covenant for him his executors and assignes that the lessee his executors and assignes shall quietly hold and enjoy the premisses without the let of the lessor his heires or assignes or any other person by or through his or their meanes title or procurement and after the lessor doth die and his wife doth enter and disturbe in this case and by this meanes the covenant is broken And so it is also if A purchase Swans case M. 7 8 El. land of B. To have and to hold to A for life the remainder to C the sonne of A in taile and after A doth make a lease of this land to D for years and doth covenant for the quiet enjoying as in the last case and then he dieth and then C doth out the lessee in this case this was held to be no breach of the covenant So likewise if A be seised of white acre in fee and take to wife B and Dier 42. 26 H. 8. 3. Fitz. Covenant 6. 26. then make a lease of it to C with such a covenant as before for the quiet enjoying and then A doth die and after B doth recover dower by this the covenant is broken and yet if the mother of A recover dower and out the lessee contra So also if a tenant in taile doth make a lease with such a covenant and his issue doth disturbe the lessee this is no breach of the covenant And yet if the lessor be the cause of the gift in taile or procure the disturbance this may be a breach of the covenant And so also it is where a man is seised of land in fee and he doth make a lease with such a covenant and afterwards he doth die and then his heire is in ward by reason of a tenure and hereby the lessee is disturbed it seemes this is no breach of this covenant If one covenant that the wife he is about to mary shall quietly Curia B. R. pase 6. Car. Crowles case enjoy all her goods and that the covenantee shall take it into his possession and the husband doth only take the goods and keepe them in his possession this is no breach of the covenant If a covenant be for the quiet enjoying against all persons but Adjudge Hil. 38 El. Woodroffe versus Greenwood Adjudge Mich 2. Car. B. R. SaÌ„ders case Dier 240. the King and his successors and the Patentee of the King doe disturbe this is a breach of this covenant If two make a lease and covenant that the lessee shall enjoy the land without the let of them or any other and one of them alone doth disturbe the lessee this is a breach of the covenant If a lessee grant and assigne all the land contained in his lease to A and doth covenant with him that he hath not done any act or thing by which the grant or assignment might be impaired but that the assignee his executors c. may enjoy it against all persons and before this time the wife of the lessor had recovered and had execution of a third part of this land for her dower in this case this is no breach of the covenant for the words but that c. doe referre to the former and are not absolute If A grant the Bailiwicke of W to B for life and B assigne it Adjudge Rich versus Row pasch â—3 Jac. Co. B. to C for three years and after to D and C doth covenant with D that he will not doe or suffer to be done any act during the said three years by which the grant made by A may be forfeit but that after the three years ended he may enjoy it in as ample manner as C did or might have done without any act by C and after the three years ended C doth execute a Proces there and thereby incroch upon the office this is no breach of the covenant If A grant land to B and his heires rendring tenne pound rent Curia Hil. 20 Jac. Co. B. Greenway Truckfalds case To free from charges and incumbrances and B doth sell the land to C and his heires and doth covenant with C that from such a day he shall enjoy it discharged of all incumbrances and before that day a Common Recovery is had against C in which A is vouched and this is to the use of C and his heires supposing hereby the rent had been gone which is not so in this case the covenant is broken for this rent is an incumbrance If a lease be made of land for years the lessee devise it to his Co. 10. 52. wife durante viduitate and after to his sonne and he in reversion doth sell the fee to the woman during the widowhood and doth covenant that the land is discharged of all former sales rights titles charges in this case the covenant is broken at the first by
rents during the terme in these cases it seemes the executors and administrators also will be charged after his death If a lessee be ousted by one that hath title it seemes an action Dier 257. of covenant will lie for this ouster against the executor or administrator upon the covenant in law if he were put out in the life time of the lessor and not otherwise for if there be tenant for life the remainder in fee to another and the tenant for life by the words demise or grant doth make a lease for years and dye and after he in the remainder doth enter and put out the lessee for years in this case he cannot upon this covenant in law charge the executors or administrators of the lessor But upon an expresse covenant for quiet enjoying he may Assignees or Grantees In some cases an assignee shall be charged though he be not named Co. 5. 16. and in some cases shall not be charged though he be named and in some cases he shall be charged when he is named as when the covenant doth extend to a thing in esse parcell of the demise there the thing to be done is appurtenant and quodammodo annexed to the thing and shall bind the assignee though he be not expresly named as a covenant to repaire c. But if the covenant be annexed to a thing not in esse before but de novo to be erected on the thing as to set up a new house or the like in this case it will not bind the assignees unlesse they be named in the covenant And if the covenant be to doe a thing meerly collaterall in that case it will not bind the assignees albeit they be named expresly Also when a contract is personall only and a man doth bind himselfe and his assignes his assignes shall not be bound hereby as if one demise sheep or other stock of cattell or any other personall goods for any time and the lessee doth covenant for him and his assignes at the end of the terme to deliver them in as good plight as they were at the â—ime of the demise or such a price for them and the lessee assigne them in this case this covenant will not bind the assignee but the executors and administrators of the first lessee are bound hereby So if one demise a house and land Executors with a stocke or summe of money for years rendring rent and the lessee doth covenant for him and his assignees to deliver the money at the end of the terme in this case an assignee shall not be bound by this covenant as the executors and administrators of the lessee shall If a lessee covenant to repaire the houses demised or to discharge Co. 5. 17. Dier 27. Bro. descent 50. the lessor de omnibus oneribus circa terram or the like in these cases and such like albeit assignees be not named in the covenant yet assignees and assignees of assignees in infinitum al others that shal come to the land by the act of law or by the act of the parties shall be bound and charged by this covenant If a lessee covenant for him and his assignes to build a new house upon the land demised within seven years and the lessee assigne it Co. 5. 17. over in this case the assignee is chargeable But if a man covenant for him and his assignes to make a feoffment obligation or the like in this case the assignee shall not be charged albeit he be named And if the lessee covenant for himselfe or for himselfe his executors and administrators only to build a new house upon the land demised and the lessee assigne over the land in this case the assignee is not bound by this covenant If a lease be made rendring rent and if it be arere that the lessee Thins case vers Cholms ley Trin. 36 Eliz. C. B. his executors and assignes shall forfeit three shillings four pence nomine poenae and the lessee assigne the terme in this case it seemes the assignee shall be charged with the nomine poenae And in all the cases before where a covenant is broken an action Bro. covenant 32. of covenant may be brought But herein note that howsoever in Note divers of the cases before assignees are chargeable upon a covenant yet the lessee himselfe is not hereby discharged but the lessor or grantee of the reversion hath election to charge which of them Election he will And therefore if a lessee covenant for him and his assignes to repaire and the lessee assigne in this case the lessor may have his action of covenant against either of them And if a lessee covenant Hil. 16 Jac. B. R. Curia Bret versus CumberlaÌ„d for him his executors administrators and assignes to repaire the houses demised and he in reversion doth grant away his reversion and the lessee assigâ—e his estate in this case albeit the grantee of the reversion have accepted the rent of the assignee of the terme yet he may still have an action of covenant against the executor of the lessee upon this covenant So if a Patentee covenant for him and his assignes to repaire and he assigne the King may have his action against either of them If A and B doe covenant for themselves jointly without more Co. 5. 23. words the covenant is joint and one of them cannot be charged without the other But if they covenant for themselves severally the covenant is severall and they may be sued apart And if they covenant jointly and severally then the covenant is joint and severall and they may be sued either way at the election of the covenantee Where the deed it selfe wherein the covenants are contained Dier 20. Co. 5. 23. 10. Wâ—â—â—n a covenant shall be said to be gone and discharged And when not And how or the estate on which the covenants as accessary to the principall doth depend is gone and determined there regularly the covenants are gone also And therefore if a lease for life or years be surrendred whereby the estate is gone or a deed become void by rasure or the like and there be covenants contained in the deed by these meanes the covenants are gone also But this surrender doth not discharge the breach of covenant which was before the 40 E. 3. 27. Bro. Surrender 47. Covenant 41. Hil. 4 Jac. B. R. Moile vers Austin surrender For if a Parson lease his glebe for years and after resigne whereby the lease for years doth become void in this case the covenants of the lease as to the time before the resignation shall be said to be in force still Where a covenant is become impossible to be done by the act of God as where one doth covenant to serve another seven Co. 1 98. Plow 286. years and he die before the seven yeares be expired by this the covenant is discharged Where there is an expresse covenant in a deed
insomuch that if a man make an estate of his land upon condition or with power to revoke it and after he make a feoffment of the land by this he is barred for ever of taking advantage of the condition or power of revocation It destroyeth contingent uses gives away a future use inclusively gives away a Seigniory inclusively and gives away a right of action for both the feoffment and livery of seisin incident thereunto are much favoured in law and shall be construed most strongly against the feoffor and in advantage of the feoffee And besides all this because it is so solemnly and publiquely made it is of all other conveyances most observed and therefore best remembred and proved If the feoffment be made by deed then must the deed be so made 4. Who may make or take a feoffment And what shall be said a good feoffment Or not And what things are requisite thereunto 1. In respect of the persons thereunto and the quality of their estate Men de non sane memorie written read sealed and delivered as all other deeds that are well made must be For which see Deed supra cap. 4. Numb 5. And in every good feoffement that is made there must be a See Grant Numb 4. Co. super Lit. 2. 42 43. Perk. Sect. 182 183. 185 Bro. Feoffments 2. 7. 8 9. 17. 39 H. 6. 43. 21 H. 7. 7. feoffor i. a person able to grant the thing passed by the feoffment a feoffee i. a person capable of it and able to take it and a thing grantable and it must be granted in that manner as law requireth And for this therefore observe that whosoever is disabled by the common law to take is disabled also to make a feoffment gift grant or lease and many also that have capacity to take by such conveyances have no ability to grant by them as men attainted of treason felony or in a Premunire aliens borne the Kings villaines Ideots mad men a man deafe blind and dumbe from his nativity a feme covert an infant and a man by duresse for the feoffments gifts c. of such persons may be avoided But such persons as have Feme covert Infant committed treason or felony if attainder doe not follow such as are attaint of heresie a leper removed by the Kings writ from the Attaint persons society of men bastards such as are deafe dumbe or blind that have understanding and sound memory albeit they cannot expresse their intentions otherwise then by signes those that are drunken the villaines of a common person before entry c. also excommunicate persons and outlawed persons albeit the King take the profits Outlawed persons of their lands all these may make feoffments gifts c. and all these have capacity to take by such conveyances A woman that hath a husband alone and by her selfe without Feme covert her husband cannot make a feoffment of her owne land and if she Perk. â—ect 185 186. doe so it is void albeit her husband agree to it Neither the head alone nor any one or more of the members of Corporation Fitz. faits feoffments 29. Perk. Sect. 205. 224 225. a Corporation aggregate of many alone may make a feoffment of any of the land belonging to their corporation But all of them together may make a feoffment and if any of them be seised of land in his owne right and in his naturall capacity he may make a a feoffment of this land as another man may doe yea he may make a feoffment of this land to the same corporation whereof he is a head or member and so give and take also in a divers capacity Ecclesiasticall persons cannot make feoffments gifts c. of their Ecclesiasticall persons ecclesiasticall lands for longer time then three lives or twenty one Co. super Lit. 43. years for all feoffments gifts grants and leases by Bishops albeit they be confirmed by Deane and Chapter or by any of the Colledges or halls in either of the Universities or elsewhere or by Deane or chapters masters or gardians of any hospitalls Parsons vicars or any other having spirituall or ecclesiasticall living are avoidable A man cannot make a feoffment to his owne wife after the mariage Husband and wife is consummate But after a contract made and carnall knowledge Perk. Sect. 194. had he may make a feoffment to her and such a feoffment will be good One Jointenant cannot make a feoffment of his part of the land Jointenants Tenanâ—s in common to his companion for a man cannot give a possession to him that Perk. Sect. 197. Fitz. faits feoffments 26. hath it before And hence it is also that the lessor cannot make a feoffment to his lessee for life years or at will And yet perhaps a feoffment in this case if it be in writing may worke as a confirmation But one tenant in common or one coparcenor may make a feoffment of his part of the land to his companion If a man make a feoffment of anothers land it is a disseisin but Disseisor and Disseisee a good feoffment against all men but the disseisee himselfe And if Bro. feoffment 4. Perk. Sect. 222. foure joine in a feoffment of land and three of them have nothing in the land and the fourth hath all the estate this is a good feoffment A disseisor cannot make a feoffment of the land to the disseisee but it will be void for the disseisee will be remitted But a disseisee Perk. Sect. 197. Co. super Lit. 48 49. may make a deed of feoffment and a letter of atturney to enter and give livery and if the atturny doe so this will be a good feoffment No feoffment or livery of seisin can be made to the King for he Fitz. faits feoffments 31. doth alwaies give and take by matter of record A feoffement may be made at this day of any thing which doth Prerogative lie in livery by whatsoever tenure it be held notwithstanding the 2. In respect of the matter whereof it is made Statute of Magna Carta cap. 32. But in some cases where a man Co. super Lit. 49. 21 H. 7. 7. See infra at Numb 9. Grant 5. doth alien his land held of the King he must have the Kings licence before hand to doe it or else he must pay a fine to the King afterwards for not having a licence But of such things whereof no livery of seisin can be made no feoffment can be made One may make a feoffment of a moity third fourth or fifth part Co. super Lit. 190. of his Manor or other land and that by the name of a moity third or fourth part A feoffment may be made of an upper chamber over another Co. super Lit. 48. mans house beneath If there be a meadow of one hundred acres which time out of Co. super Lit. 4. 48.
never out of the possession If the King have any possession of the land by wardship or otherwise Prerogative Perk. Sect. 219. Bro. Feoffment 3. 17. 21 H. 7. 7. 2 H. 6. 5. 1 H. 7. 5. Stamf. prer Regis 40. the owner of the land can make no feoffement of it And therefore if the King be entituled to land by wardship or primer seisin after office found after the death of an Auncestor of one of his tenants in this case it is said the feoffement of the heire is void and passeth nothing for the King is still in possession And if it be before office found it will be all one for the office shall relate to the death of the Auncestor And yet in these cases the feoffment is good against the heire himself and all others besides the King If the heir before office found enter and make a feoffment and then the King doth pardon the feoffee in this case the feoffement is good And yet such a feoffement after office with a pardon is void And the like law is if the entry bee before office and the pardon after the office for this is void also But if a man bee outlawed for debt or trespasse and thereupon the Outlawed persons King hath the profits of the lands in this case the owner may make a feoffment of this land notwithstanding Divers persons cannot make a feoffement but it must be by deed Fitz Faits Feoffements 32. See Grant Numb 4. 4. In respect of the manner of making of it as corporations and such like Also divers things cannot be granted by a feoffement but the feoffement must be made by deed for a feoffement cannot be made of a reversion of land but it must be by Reversion deed But a lease may be made of land to one for life the remainder to another in fee and this may be done without any writing by word only Also a feoffment may be made of the moity third or 4th Litt. Sect. 60. super Litt. 190. part of a manor or of a peece of land without deed And yet if one be seised of a manor whereunto an Advowson is appendant and he make a feoffment of three acres parcell of the manor together with the Advowson to two men Habendum the one moity with the Advowson to one of them and the other moity to the other in this case the feoffment cannot be well made unlesse it by deed If a lease be made for five years on condition that if the lessee pay Litt. Sect. 250. to the lessor within the two first years ten pound then that he shall have the land to him and his heires or otherwise but for five years in this case if livery of seisin be made to the lesse before his entry this is a good feoffment Et sic de similibus Every feoffment also whether it be made by deed or without Livery of seisia deed must be made with livery of seisin and this livery of seisin must Lit. Sect. 59. 66. Co. super Lit. 52. Doct. Stud. 13. be made according to the rules of livery and seisin herein after laid downe for this is of the essence of a feoffment and a feoffment is not accounted perfect untill livery of seisin be made for untill then the feoffee hath only an estate at will in the land and the feoffor may put him out when he will And if either of the parties die before the livery of seisin be made the feoffment is void and no warrant of atturny to make livery can be executed after the Equity death of the feoffor or feoffee neither is there any remedy in this case to get the assurance to be made perfect but in a Court of Equity But in case where there are many feoffees there the death of one or some of them will not hinder the livery but it may be made to him or them that doe survive we must see therefore in the next place what this livery of seisin is Livery of seisin or giving of possession is a solemnity or overt 5. Livery of seisin Quid. New terms of the law ceremony required by law and used for the passing of lands or tenements corporall as an evidence or testimoniall of the willing departing by him that makes the livery from the thing whereof livery is made and the willing acceptance thereof by the other party And West 2. part Symb. Sect. 251. Co. super Lit. 48. this is as ancient as a feoffment for no feoffment is made without livery of seisin albeit livery of seisin be sometimes made upon other conveyances And it was first invented as an open and notorious act to this end and that by this meanes the country might take notice how lands doe passe from man to man and who is owner thereof that such as have title thereunto may know against whom to bring their actions and that others may know that have cause of whom to take leases and of whom to require wardships c. And by this means if the title come in question the Jury can the better tell in whom the right is And of this livery of seisin there are two kinds 1. A livery in deed 2. A livery in law called a livery Co. super Lit. 48. 6. Quotuplex within view The livery in deed is when the feoffor donor c. by himselfe or another taketh the ring of the doore of the house or a turfe or twig of the land and delivereth the same upon the land unto the feoffee donee c. in the name of seisin of the house or seisin of the land And this is done sometimes by the parties themselves if they be present sometimes in their absence by their atturnyes or procurators The livery in law is where the feoffor saith to the feoffee being in view of the land I give you yonder house to you and your heires goe enter into the same and take possession thereof accordingly or the like Because this manner of conveyance by feoffment is so ancient Bio estates 4. Plow 28. 29. 7. The nature and operation of it therefore this ceremony being inseparably incident to a feoffment is much favoured in law And therefore it is expounded and taken strongly against him that doth make it and beneficially for him to whom it is made And for this cause it worketh not only to transmit the present estate but also to barre all present and future rights and possibilities If therefore one make a lease for life to I S the remainder to the right heires of I D which I D is then living and give livery of seisin according to the deed in this case albeit he in remainder be not capable of this remainder yet by the livery it shall passe out of the feoffor and shall be in Abeyance during the life of I S. So if a feoffment be made to one heredibus without the word Suis and
livery of seisin be made of the deed this livery perhaps may make the estate good Livery of seisin is needfull and must be had and made in all cases Co. 5. 92. Lit. Sect. 70. Co. 6. 26. Doct. Stud. 13. Co. super Lit. 49. 8. Where and in what cases it is requisite Or not where any estate of see simple fee taile or for a mans owne or another mans life is made or granted by writing or word in the country of any lands or tenements corporall And so also where one doth make a lease of land to another for years the remainder to a stranger in fee simple fee tail or for life in these cases livery of seisin must be had and made to the lessee for years or else nothing will passe to him in remainder and yet the lease for years will be good And so also where a lease for yeares is made upon condition Co. super Lit. 216. that if such a thing happen the lessee shall have the fee simple in this case the lessee must have livery of seisin before his entry otherwise the estate will not increase And so also if the King Plow 214. 2. 9. make a feoffment of the land he hath in the right of the Duchy of Lancaster that is not within the county Palatine in this case livery of seisin must be made as in the case of a Subject And in all these cases where livery of seisin is requisite and it is not made there doth passe no estate by the conveyance but an estate at will at the most But livery of seisin is not needfull or requisite to bee had and Co. 2. 23. Lit. Sect. 59. Co. super Lit. 49. made in cases where any estate of see simple fee taile or for life is made or granted of any lands by matter of record as by the Kings Letters Patents Fine Recovery Deed indented and inrolled and the like nor is it needfull where any such estate is created by way of covenant and raising of use by way of Exchange Indowment ad ostium Ecclesiae or ex Assensu patris nor is it needfull where any such estate is passed or granted by way of Surrender devise release or confirmation or by way of increase or executory grant as when the fee simple is granted to the lessee for life or yeares in possession neither is it requisite or can be made where any incorporeall hereditaments as reversions rents commons or the like are granted in fee simple fee taile or for life for in some of these cases there is an atturnement to be made that doth supply a livery Neither is it requisite in some cases where an estate of freehold is made of a corporall thing as if a house or land belong to an office and the office be granted by deed in this case the house or land doth passe as incident thereunto So if a house or chamber belong to a corody in this case by the grant of the corody the house or chamber passeth without any livery of seisin Neither is it requisite upon a lease for yeares for if a man make a lease for one thousand yeares this lease is perfect by the delivery of the deed without any livery of seisin Neither is it needfull where one doth grant to me and my heires all the trees growing Co. 8. 137 11. 49. on his ground for these will passe without any livery of seisin at all Livery of seisin may and must be made either by the party himselfe Perk. Sect. 184. Co. super Lit. 48 49. 52. that maketh the estate or if it be a livery in deed it may in his 9. How it may must be made And what shall be said a good livery of seisin Or not absence be made by his atturney sufficiently authorized by writing And he that may make an estate to the perfection whereof livery is requisite may himselfe and in his owne right make livery thereupon and in the right of another and as atturney to another so 1. In respect of the persons that make it to whom it is made and the quality of their estate Woman covert Infant divers that cannot make any estate may notwithstanding make livery of seisin And therefore the husband albeit he may not make a feoffment in fee or lease for life c. of land to his wife yet he may as an atturney make livery of seisin to her upon a conveyance made by another And so also may the wife upon a conveyance made to the husband or her And so also Monks Infants Aliens and such like persons disabled to make feoffments c. may notwithstanding make livery of seisin as atturneys upon conveyances made to others And so likewise may he in remainder in fee make livery to the lessee for years Et sic de similibus And this livery of Co. super Lit. 48. 49. seisin may and must be made to the party himselfe that taketh the estate or in his absence to his atturney or procurator sufficiently authorized and in this case any one may be an atturney to take that may be an atturney to give livery If a feoffment be made to Dier 35. Co. super Lit. 49. 359. Co. 5. 95. divers by deed and livery of seisin is made to one or some of them this is a good livery to execute the estate to them all But if a feoffment be made to divers without deed and livery of seisin is made to one or some of them in the name of all the rest in this case the feoffment is good to execute the estate in him or them to whom the livery is made and voidas to the rest If a lease for years be made Co. super Lit. 217. to A and B without deed the remainder to D in fee and livery of seisin is made to A or B in this case this is a good livery to make the remainder to passe to D. But if a lease be made for years to A the remainder to the right heires of I S in fee I S being then living and livery of seisin is given to A this remainder is void for nemo est heres vâ—veÌ„tis One Jointenant caÌ„not make livery of seisin Perk. 40. 10 E. 4. 3. to his companion as a tenant in common may And a lessor cannot make livery of seisin to his lessee for life or years See before Num. 4. In all cases where this ceremony is requisite whether it be done Co. super Lit. 52. 2. In respect of the time when it is made by the parties themselves in person or their deputies it must be done and made 1. in the life time of the feoffor donor or lessor and in the life time of the feoffee donee or lessee for if either of them die it cannot be done afterwards neither can a warrant of atturney be be made to deliver seisin after the death of the feoffor c. But if there be more
feoffees donees or lessees then one in such cases albeit all of them die but one the livery of seisin may be made to that one that doth survive and it will be good to him to execute the estate in all the land And so it is if there be a warrant of atturney made by a Corporation aggregate as a Mayor and Communalty Deane and Chapter or the like to give livery of seisin in this case the death of the Mayor c. will not determine the authority and therefore in that case the livery of seisin may be made after his death 2. If it be a lease for years with a remainder over in fee the livery must be made to the lessee for yeares before his entry or at the time Co super Lit. 49. 216. Perk. Sect. 205. when he doth enter for that purpose for afterwards it cannot be made Quod semel meum est amplius meum esse non potest Quere also whether the law be not so in all other cases and let men take A caveat heed they doe not as commonly they doe enter into the land before they have livery of seisin made thereof unto them And yet it seemes the livery of seisin is good when it is made afterwards by Co. 2. 55. 3. It must not be made before the estate begin for Co. super Lit. 217. if a lease be made for years to begin at Michaelmas with a remainder over and the livery of seisin is made before Michaelmas this livery of seisin is void for if a livery worke at all it must worke presently and so it cannot in this case because it is before the estate doth begin If an estate be made of divers peeces of land in divers villages in Co. super Lit. 48. Perk. Sect. 227. 228. Doct. Stud. 3. Lit. Sect. 61. 418. Perk. Sect. 226. Fitz. feoffments Faits 111. the same county in this case the making of livery of seisin of and 3. In respect of the place or thing wherein it is made in any part thereof in the name of all the rest or of one parcell according to the deed albeit he doth not say in the name of c. sufficeth for all if all the peeces be in the grantors possession and out of lease But if the peeces of land lie in divers counties or in the same county and they be in lease or out of the possession of the feoffor contra for in that case the making of livery in one part in the name of all the rest is not sufficient for the rest for in this case it is requisite that livery of seisin be made upon and in some of the lands in both counties and upon every parcell of land that is out of possession or at least in some parcell of the land in the occupation of every severall tenant And yet if one part of a Manor be in one county and theother part in another county in view of that part in this case it seemes livery of seisin in the one part in the one county in view of the other part in the other county is good sufficeth for all So if the seite of a Manor lie in one county and the rest of the Manor in another county in this case the making of livery in the scite of the Manor is sufficient for the whole Manor If a feoffment be made of the Manor of Dale in Sale the which Manor Perk. Sect. 228. doth extend in Dale and Sale and livery of seisin is made accordingly in Dale only and not in Sale also by this feoffment there doth passe no more of the Manor but that which is in Dale only If I 9 H. 7. 25. per Frowick be seised of one acre in fee and of another acre for life and I make a feoffment of both acres and make livery of seisin in that acre whereof I am seised in fee in the name of both acres in this case it seemes this sufficeth to passe both the acres But if I be seised of one acre in fee and possessed of another acre for years and I make a feoffment of both acres and livery of seisin in that acre only whereof I am seised in fee in the name of both the acres contra for this is as If I make a feoffment of land whereof I am seised and of other land whereof I am not seised c. If I be seised of two acres Fitz. Faits Feoffments 2. of land and let one of them for years and then make an estate of both of them to another and make livery of seisin in that I have in possession in the name of both the acres this will not serve to passe the other acre but livery must be made in that acre also And accordingly it was agreed in a case in the Kings Bench Hil. 38 Eliz. which was that a man was seised in fee of a Manor and Mountague versus Jefferies other lands called Groves and he made a feoffment of it Groves being then in lease for years and a letter of atturny to give livery and the atturny made livery of the Manor in the name of the rest the lessee being still in possession of Groves in this case it was agreed that this was no good feoffment for Groves When a feoffment is made of a house and land the livery of See infra seisin is most aptly to be made of and in the house in the name of the rest and at the doore of the house c. And when a feoffment is made of a Rectory or Parsonage the livery of seisin may be made in the Parsonage house or if there be no house it may be made upon the Glebe or if there be neither it may be made at the ring of the Church doore In the making of every livery of seisin it is requisite that all persons 4. In respect of the presence or possession of others See before Numb 4. that have any lawfull estate and possession in the thing whereof livery is to be made as lessees for life years and such like joine in the making thereof or be removed thence for every livery ought to bring an immediate possession to the feoffee donee c. If lessee for years make a feoffment and a warrant of atturny to Dier 362. give livery of seisin and the atturny make livery of seisin the lessor being present upon the land and not contradicting it it seemes this is a good livery of seisin The presence of the feoffor donor c. upon the land after he Bro feoffments 24. hath delivered seisin to the feoffee donee c. albeit he stay upon the land a while and doe not depart and leave the feoffee c. in possession will not hurt the livery See more supra Numb 4. Livery of seisin may be made of any corporall thing as Manors Co. super Lit. 49. 5. In respect of the matter whereof
of the tenant yet the bargainee shal have benefit of a condition as an assignee within the Statute of 32 H. S. And it seems he may vouch by force of a warranty annexed to the estate of the land because he is in partly in the per and partly in the post All things for the most part that are grantable by any other way See West Symb. tit Bargain and Sale 4. Of what things a bargain and sale may be Or not from one man to another are grantable and may be transferred by way of bargain and sale from one to another And therefore lands rents advowsons commons tithes profits of Courts and the like may be granted by way of bargain and sale in fee simple fee tail for life or years And all manner of goods and chattels as leases for years wardships cattell corn housholdstuffe wood trees merchandises and the like are grantable by way of bargain and sale But it seems Estovers and such like things de novo and that 6 Jac. B. R. Adjudged 21 H. 6. 43. per Yelverton have not essence before are not grantable by way of bargain and sale as they are by way of grant or lease and therefore that a bargain and sale of such things is void If any estate of freehold or inheritance be made of land by way 5. What shall bee said a good bargain sale And what things are requisite to make such a bargain and sale Or not Of lands of bargain and sale the same must be made by a writing or deed Stat. 27 H. 8. ch 16. indented and cannot be made by word of mouth onely as a lease for years whether it be created de novo or be in esse before may be But lands in London by a speciall Proviso within the Statute may be bargained and sold by word of mouth without any writing 2. The very words Bargain and Sell are not necessary to a good bargain sale for words equivalent will suffice to make land Co. 8. 94. 7. 40. 2. 36. passe by way of bargain sale And therefore if a man seised of land in fee do by deed indented and by the words alien or grant sell them to another or if such a man covenant to stand seised of his land to the use of another and these deeds are made in consideration of money and the deeds be after inrolled these will amount to good bargains and sales And if a man by a deed indented and inrolled in consideration of ten pound paid to him by the words demise and grant passe his lands to another for twenty years this is a good bargain and sale 3. There must be some good consideration Co. 1. 176. given or at least said to be given for the land And therefore if A for divers good considerations a Ward versus Lambert Pasche 37 Eliz. or in consideration that the bargainee is bound for the bargainor and for divers other good causes b 41 El. Adjudged or for divers great and valuable considerations bargaine and sell his land by deed indented and inrolled to B and his heirs nihil operatur But if in these cases in truth there be money or other good consideration given albeit it be not expressed upon the deed Dier 169. the bargainee may aver it and being proved the bargain will bee Averment good And if the deed make mention of money paid as in consideration of an hundred pound or the like and in truth no money is paid yet the bargain and sale is good And no averment will lie against this which is expresly affirmed by the deed And if the deed Dier 90. mention and say for a certain sum of money or for a certaine competent sum of money these are good considerations 4. There needs no livery of seisin or atturnment in this case And therefore Co. 7. 40. 8. 94. if one bargain and sell a reversion by deed indented and inrolled for good consideration the reversion will passe without any atturnment of the tenant And if it be onely a lease for years of a reversion that is granted there needs no atturnment nor inrolment And in case of a bargaine and sale the bargainee is in actuall possession before any entry so that the lessee may atturn to the grant of the reversion as hath been ruled in Mittons case Mich. 18 Jac. in Cur'Ward by the two Chief Justices and the whole Court And yet I think he hath not such a possession as to bring any possessory action for trespasse or the like untill an actuall entry for where the Statute of 27 H. 8. of uses provides that the actuall possession shall be adjudged according to the use yet it ought to have a circumstance Co 5. 112. which is requisite by the common law viz. an actuall entry in deed But there must be an inrolment of the deed in case Stat. 27 H. 8. ch 16. Pl. 307. where any freehold doth passe for it is provided That no lands Inrolment Where necessary And how it must be done except in some Corporations only shall passe from one to another by any deed whereby any estate of inheritance or freehold shall be made or take effect in any person or persons to be made by reason only of any bargain and sale thereof except the same be made and done by writing indented sealed and inrolled in one of the four Courts the Chancery Kings Bench Common Pleas or Exchequer or else within the same County or Counties where the lands so bargained and sold doe lie before the Custos Rotulorum and two Justices of the Peace and the Clerk of the Peace of the same County or Counties or two of them at the least whereof the Clerk of the Peace to be one And the same inrolment to be within six moneths next after the same writing or deed is dated And this Statute was made in the same Parliament wherein the law of transferring of uses into possession was made to the end that mens lands might not suddenly and privately passe upon payment of a little money in an alehouse or the like And herein these things must be observed 1. The inrolment upon such a deed as to make this estate to passe must be in parchment for an inrolment in paper is not good 2. The deed inrolled must be indented for if it be but poll the estate will not passe 3. It must be inrolled within six moneths of the purchase or sale * Co. 5. 1. And this account must be 1. From the date and not from the time of the delivery of the deed 2. After twenty eight days to the moneth 2 Dier 218. Adjudge Franklin Garters case Mich. 37 38 Eliz. 4 Dier 218. and no more 3. The day of the date to be taken exclusive and for none of the days of the six moneths And yet if a deed be inrolled the same day it bears date it is good 4.
good And if the Parson agree with one of his Parishioners that he shall have his own tithes this is not a good grant of the tithes neither may it be pleaded or used so but perhaps by way of agreement a Parishioner may retain his tithes And if a lessee for years of tithes will grant it over to another at will only it cannot be done without deed as was held by Baron Denham 2 Car. at Sarum Assises And yet it is held that a Parson Mich. 8 Jac. Dr. Longworths case may grant his tithes from year to year to him that is to pay them without any deed but this is by way of retainer But this grant or agreement must be made to and with the party himself that is to pay the tithe and not with another neither can this interest bee assigned or a stranger take advantage of it as hath been agreed in the case of Hawkes and Brafield Pasch 3 Jac. B. R. An Advowson in grosse cannot be granted without deed yea 21 Ed. 3. 38. 11 H. 4. 3. Dier 29. 10. Co. 1. 1. the grantee of the grantee of an Advowson is to shew both the deeds But an Advowson is grantable upon a partition between coparcenors without deed And an Advowson incident to a manor or peece of land is grantable with the manor or land without any deed The next avoidance to a Church is not grantable without Plow 150. 9 Ed. 4. 47. deed Common of Pasture of estovers turbary fishing c. cannot be Perk. Sect. 61. granted in fee simple fee tail for life or years unlesse it be in case Common of pasture c. of partition or of appendancy as incident to some corporall thing without deed And therefore if a man grant by word of mouth to me Common for twenty beasts in his manor this is not good Neither if it be granted to me by deed may I grant this over to another without deed But if a man have Common of pasture appendant or appurtenant to his land in this case he may grant his land with the Common appendant by word only without any deed Franchises as Fairs Markets Courts Warrens and the like Franchises and such like things 15 H. 7. 8. or the profits thereof are not grantable without deed But it seems a Hundred is grantable without deed for that is liberum tenementum The profits of a Mill County Ferry Corody or the like are not grantable without deed Things in action as a right or title of action that doth only depend 6 H. 7. 9. Dier 91. 126. Doct. St. 16. in action and things of that nature as rights and titles of Things in action and such like things entrie to any reall or personall thing are not grantable at all but by way of release to the tenant of the land c. by which means it may be extinguished but this may not be neither without deed And therefore if a man take my goods as a trespassor or I deliver him my goods to keep and after I will give these goods to him I cannot doe this without deed An election condition covenant assent licence or liberty Dier 281. cannot be created and annexed to an estate of inheritance or free-hold without deed A priviledge to hold land for life without impeachment of wast Offices Co. 9. 9. is not grantable without deed Offices for the most part are not grantable without deed And yet some inferiour offices as Stewardships Bailiwicks and the like are for such officers a Lord of a Manor may retain by word without deed Most chattels reall and personall may be given and granted without Perk. Sect. 57. 60. Bro. Done i. Dier 370. 5 H. 7. 35 36. Plow 150. deed And therefore if a man by word of mouth grant give or Chattels sell me his lease for years the wardship of body and land or the wardship of land that he hath by reason of a tenure by Knights service or by grant from the King or grant or sell mee the trees standing upon his ground the corn growing upon his land his horse sword plate or other houshold stuffe this is a good grant or gift But the wardship of the body of an heir only cannot be granted without deed So a next presentation cannot be granted without deed If one grant his reversion of land to one and by the same deed What by the same deed Plow 540. granteth a rent out of the same land to another and delivereth the deed to both of them at one time this is good and shall enure first as a grant of the rent to one and then as a grant of the reversion to the other If one convey land to another and the grantee by the same Dier 6. deed doth grant a rent or common to the grantor out of the same land conveyed this is as good as if it were by another deed Dedi Concessi be the most apt words for all kind of grants yet Co. super Litt. By what words of grant it may be by other words and the grant as good as by those words The best way in grants is to grant by words of present time in 35 H. 6. 11. the present tense as well as in the preterperfect tense But a grant by words of the preterperfect tense only as by Dedi concessi only without words of the present tense is good Touching this part two things are requisite 1. That the grantor 2. In respect of the person of the grantor c. and the naming of him And who may be a grantor And how See Feoffement ca. 9. Numb 4. be a person able 2. That if the grant be by deed that he be sufficiently described and set forth either by his proper names or else by some other matter of distinction Note therefore that whosoever Perk. Sect. 3. may be a feoffor may be a grantor And any natural politique or corporate body not prohibited by law as Monke Frier woman covert infant and such like may be a grantor donor c. And the grants of such persons will be good An alien may and is able to grant or give any thing that he is Alien capable of to have or take by grant or gift A person attainted of treason or felony may give or grant his land Perk. Sect. 26. See ch 2. Numb 6. Person attaint or outlawed and this is good against all others besides the King and the Lord of whom his land is held And he may grant or give his goods to relieve himself in prison and this will be good against all others and the King and Lord also A person outlawed in a personall action may give or grant his goods or chattels and the gift or grant will be good against all others but the King The Queen may without the agreement of the King make grants Co. super Litt. 3. Per. Sect. 8.
small matter so as it is literall and verball only the grant will not be hurt by it But if the mistake or omission be in the substance of the name the grant may be void by it And therefore if Decanus Capitulum ecclesiae cathed sanctae individ Trin. Caerlil grant by the name of Decanus ecclesiae cathed sanctae Trin. in Caerlil totum capitulum ecclesiae predict this is good Et sic de similibus for if the sense doth still remaine either expresly or by necessary implication and the description be such as doth import a sufficient and certaine demonstration of the true name of the Corporation according to the foundation thereof it sufficeth But if any of the substance or essence of the name be omitted contra And therefore if a Corporation incorporate by the name of Prepositi collegiiregalis coll beate Mariae de Eaton juxta Windsor grant by the name of Prep sociorum Colleg. regalis dc Eaton c. leaving out Collegium et beatae Mariae this grant is void * 3 In respect of the grantee and the naming of him And who may de a grantee c. And how Touching this part three things are requisite 1. That the Co. super Lit. 2. 3. Perk. Sect. 43. See in feoffment cap. 9. Numb 4. grantee be a person capable i. that he be a person in being at the time of the grant made and not disabled by any legall impediment to take by the grant 2. That if the grant be by deed the grantee be sufficiently named or at the least set forth and distinguished by some circumstantiall matter and that he be so named or described as that he may be capable by that name whereby he is set forth 3. That he himselfe and not a stranger doe take by the same grant Note therefore that all naturall and politique or corporate bodies that are not disabled by law may be grantees And all persons that may be grantors may be grantees And some others that cannot grant or give yet may take or receive And a grant made to one two three or twenty such persons is good A grant of land or rent in possession to the right heires of I S I S Co. 1. 101. Perk. Sect. 52. 54. Co. 2. 31. being then living is void for there is nor can be any such person in rerum natura for no man can be an heire to another that is living But such a grant to one in remainder is good if so be that I S die before the the particular estate end and before the remainder happen So if a grant be to him or her that shall be the first child of I S and he have no child at the time of the grant this is void So if a grant be made to the wife or child of I S when there is none such it is void As if a grant be to I S and to his first borne sonne or to I S and her that shall be his wife and he hath at the time of the grant neither wife nor sonne in these cases the grant is void as to the wife and sonne and I S shall have all by the grant An alien may be a grantee but if any thing be granted unto him Co. super Lit. 2. whereof he is uncapable as any estate of lands in fee simple for life Allen or years he cannot hold it but the King will have it from him Prerogative Persons attainâ— A person attainted of treason or felony before or after attainder Co. super Lit. 2. Perk. Sect. 48. may be a grantee but he cannot hold the thing granted for if the King or Lord will he may have it from him So also persons out-lawed in personall actions may be grantees of lands or goods but the King will have the profits of the lands property of the goods A woman covert may be a grantee but her husband may by Perk. Sect. 43. Co. super Lit. 2. his disagreement a void the grant And yet if he doe not avoid it Woman cover in his life time the grant will be good and he that will have the grant to be void must shew that the husband did disagree to it An Infant may be a grantee for this is presumed to be for his advantage Perk. Sect. 4 Co. super Lit. 2. Infant And yet at his full age he may agree to it and perfect it or disagree to it and avoid it without any cause shewed A man de non sane memorie may be a grantee as well as any other Men denon sane memori Co. Idem man and it seemes these grants cannot be afterwards avoided But such men may not be grantees of offices of trust and such like things A Bastard persons deformed having humane shape leapers and Co. Idem such like may be grantees of lands or goods c. as other men Bastard may be An Hermaphrodite may be a grantee according to the most prevailing Co. Idem Sex Herrmaphrodite A clerke convict and a man imprisoned may be a grantee as well Co. super Lit. 3. Perk. Sect. 48. 51. Clerk convict Villaine as any other And so also may a villaine of the King or of a common person but he cannot retaine the thing granted for the King or Lord may have it from him if he will But Monkes Friers and such like persons cannot be grantees for they are utterly disabled Regularly it is requisite that the grantee be named by his names Co. super Lit. 3. Misnaming or not naming of Baptisme and Sirname and so it is most safe and speciall heed must be taken to the name of Baptisme for that a man cannot have two or more names of Baptisme as he may of Sirnames And yet in some cases though the name be mistaken the grant is good a Bro. Nosme 9. As if a grant be to I S and Em his wife and her name is Emelin b Bro. Confirmation 30. or a grant is made to Afred Fitzjames by the name of Etheldred Fitzjames c Co. 6. 65. 27 E. 3. 85. or a grant be to Robert Earle of Penbrooke where his name is Henry or to George Bishop of Norwich where his name is Iohn d Co. supu Lit. 3. or a grant be to a Mayor and Communalty or a Deane and Chapter and Mayor or Deane is not named by his proper name e Dier 119 or a grant be to I S wife of W S where shee is sole all these and such like grants are good for in this case the rule doth hold utile per inutile non vitiatur f Co. super Lit. 3. And if one be baptized by one name and after confirmed by another yet a grant to him by his first is good And so also some thinke of a grant to him by his second name Sed Quere of this Also when a Bastard hath
is good notwithstanding But if the grant be thus omnia illa terras c. in tenura I S jacen in W nuper prioratui de S spectan and in truth the land doth lie in S and not in W this is no good grant to passe the lands in S. And if the lands doe lie in W but are in the tenure of I D and not in the tenure of I S the grant is void to passe the lands in the occupation of I S. If one purchase land of I S in T and have no other land there Dier 376. Bro. Grant 92. and he grant his land in T late the land of R S or late the land of S and mistake or omit the christian name this grant is good notwithstanding this mistake And so also it is where there is a blanke left for the christian name And if in this case he grant all his land in T and say no more this is a good grant to passe the land And if one grant all his lands in D called N which were the lands of I S this is a good grant to passe the lands called N though they were never the lands of I S. But if the grant be of all his lands in D which were the lands of I S by this none but those lands that were the lands of I S will passe If one grant in this manner all my meadow in D containing Dier 80. tenne acres whereas in truth his meadow there doth containe twenty acres it seemes this is a good grant for the whole twenty acres So if one grant thus All those forty seven acres of land by the Sleight whereof fifteen lie in D twenty in E and twenty five in F and in truth all of them doe lie in F and none of them in D or E this is a good grant to cary the whole forty seven acres If one grant twenty load of wood and say in his grant of which Bro. Grant 69. twenty load of wood he had sixteene load by the grant of his father I S and in truth I S did not grant any wood to him at all or did not grant unto him sixteene load only this is a good grant of the twenty load of wood notwithstanding this false recitall If one grant his Manor of D and doth not say in what towne or Bro. Grant 53. 7 H. 4. 41. townes it doth lie this is a good grant But it is best to say in what townes the Manor doth lie for if it lie in divers places as it may and any of the places into which it goeth be omitted and the rest are set downe no part of the Manor lying in the towne that is not expressed will passe If one grant a Manor and that which in truth is but one Manor Co. 1. 46. by the name of the Manor of A and B this is a good grant of the Manor And so also it is if it be two Manors as if a man be seised of the Manors of Ryton and Condor in the county of Salop and he grant in this manner totum illud Manerium de Ryton Condor cum pertinen in Com. Salopiae this is a good grant of both the Manors Otherwise it is in case of the King Prerogative If one have a farme of land meadow c. by lease called Curia Co. B. Pasc 9 Jac. Inter Plat. Sleepe Bro. Grant 53. Hodges lying within the parishes of S. Stephen and S. Peter in S. Albons and he reciting the said lease grant to C his terme and interest in the house lands c. called Hodges in the parish of S. Peter and S. Albons this grant is good only for so much as doth lie in the parish of S. Peter and not for that which doth lie in S. Stephens But if he grant the farme and doth not say in what parish it doth lie this is a good grant of the whole farme As in the case before of a Manor that doth lie in divers parishes And if in the case here the farme lie within the parish of S. Peter only the grant is good for the whole farme If one recite that whereas he hath such lands by forfeiture or whereas such a one hath an estate of his land or whereas the grantee hath paid him tenne pound or done him such service or the like and these things are not true and afterwards he doth grant the land by apt words this mistake in these cases will not hurt the grant But otherwise it is in case of the King in some of these cases Prerogative If one have a Manor in which he hath Parkes and Fishponds and he grant the Manor for life except the game and fish and after Co. 11. 50. grant the reversion of the Manor this is a good grant of the game and fish also If a grant be of Centum libratas terrae or 50 libratas terrae or Co. super Lit. 5. of Centum solidat terre it seemes these are good grants and that hereby doth passe land of that value and so of more or lesse If a grant be of an acre of land covered with water this is a Co. super Lit. 4. good grant If a grant be of a certaine portion of land or tithes or of the Dier 84. 34 E. 3. fourth part of land or tithes and there be a sufficient certainty in the description of it this grant is good And therefore if the grant be of the fourth part of the tithes and of the offerings of the Church of S. Peter this is a good grant If one seised of an Advowson in fee grant to I S that as oft as Bro. Grant 101. 121. the Church is void he shall name the Clarke to the grantor and he shall present him to the Ordinary this is a good grant of the Advowson A reversion may be granted by the name of a remainder or a Dier 46. Plow in Hil. Granges case remainder by the name of a reversion and such a grant is good As if one grant land to I S the reversion to I D this is a good grant of the remainder If one make a lease of land to husband and wife for their lives Fitz. Grant 63. and after grant the reversion of this by the name of the reversion of the land which the wife doth hold for life this grant is void So if one grant to two for life and after grant the reversion of one of them this is void A Fulling or grist mill may be granted by the name of a mill only 21 Ass pl. 23 If one grant in this manner All that his mesuage c. And all Inceâ—ainty the lands meadowes and pastures thereunto belonging this is 27 H. 6. 2. Plow 164. Bro. Lease 55. a good grant and certaine enough to passe all the lands meadowes and pastures usually occupied therewith If the Lord grant his Manor by the name of his Manor
with the Fitz. Grant 68. Perk. Sect. 68. reversion of all his tenants or by the name of the reversion of all his tenants bond and free which hold for life or years and doe not name them by their particular names these grants are good in these cases and certaine enough If one grant land and say not in what parish or county or village Bro. Grant 53. Co. 9. 47. it doth lie yet if there be any other matter to describe it it seems the grant is good enough and it may be averred where it lieth But if there be no circumstantiall matter in the grant to denote and decipher out where it doth lie it seemes the grant is void for incertainty And therefore if one grant his Manor of Dale or his lands in the occupation of I S or his lands that descended to I S or his lands that did belong to the priory of S or the like these are good grants and certaine enough Id certum est quod certum reddi potest If there be tenant for life of three houses and foure acres of land Perk. Sect. 73. and he in reversion grant the reversion of two houses and of two acres of this land this is a good grant and hath sufficient certainty in it If a grant be incertain altogether and have not sufficient certainty Perk. Sect. 67. in it cannot be made certain by some mater ex post facto it is void And therefore if there be Lord and tenant of three acres of land by fealty and twelve pence rent and the Lord grant the services of the third acre to a stranger this grant is meerly void So if Perk. Sect. 68 69. husband and wife hold an acre of land jointly of I S for their lives and I S grant the reversion of the acre of land which the husband alone doth hold for his life this grant is void So if there be Lord and three Jointenants and the Lord grant the services of one of them to a stranger this grant is void So if one have twenty tenants 9 H. 6. 12. that doe pay him twelve pence a peece rent and he grant five shillings yearly out of these rents and doth not say of which tenants this grant is void for incertainty So if conusance of pleas 44 E. 3. 17. Bro. Grant 52. be granted and it is not said before whom this is utterly void So if one have two tenants and doth grant the reversion of one of them and doth not say which this is void for incertainty So if Dier 91. one grant estovers to another and say not what nor how this is void So if one grant me so many of his trees or of his horses as may be reasonably spared this grant is void And yet if one grant me so many of his trees as I S shall thinke fit it seemes this grant is good And if one grant me one hundred load of wood to be taken Co. 5. 24. by the assignement of the grantor or to be taken by the assignment of I S these are good grants So if one grant me three acres of wood toward the North side of the wood this is a good grant and certaine enough If one grant to one of the children of I S and I S hath more Bro. Done 31. then one and he doth not describe which he doth intend this grant is void for incertainty If one grant to me a rent or a robe twenty shillings or forty shillings or common of pasture or rent in the disjunctive which 9 E. 4. 36. Perk. Sect. 74. is at first very incertaine yet this grant may become good for if I make my election or he pay the rent or performe the grant in either part the grant is now become good So if one be seised of Perk. Sect. 76. two acres of land and he doth lease them for life the remainder of one of them and doth not say of which to I S in this case if I S make his election which acre he will have the grant of the remainder to him will be good So it is when a man hath six horses in his stable and he doth grant me one of his horses but doth not say which of them in this case I may choose which I will have and in these cases when I have made my election and not before the grant is good And if in these cases the grantee doe not make his election during his life it seemes the grant will never be good If one be seised Bro. Grant 77. of land and lease it for yeares rendring tenne shillings rent and after he doth grant a rent of tenne shillings out of this land to a stranger in this case albeit there be some incetainty in the grant yet this is a good grant of a rent of tenne shillings but it shall be taken a grant of a new and not of the old rent and therefore shall not take effect untill the particular estate be ended See more to this point in Deeds and their Exposition chap. 5. Numb 15. and Fine chap. 2. Numb 7. In some cases albeit there be in a Grant a good grantor and a 5. In respect of matter in some other parts of the Grant 1. In the commencement of the estate good grantee and a thing granted and all these are duly and certainly described yet the grant may be void for some fault in some other thing touching the grant as 1. In the commencement of the estate For if a man be possessed of a terme of yeares albeit it Bro. Grant 154. Co. 1. 155. Plow 520. be one hundred yeares or upwards and grant to another all the residue of this terme of years that shall be to come at the time of his death this grant is void for incertainty And yet if a man possessed of such a terme in land grant the land to another To have and to hold to him after the death of the grantor for fifty yeares or for two hundred years these are good grants and in the first case the grantee shall have fifty yeares if there be so many to come of the terme of one hundred years at the death of the grantor and in the last case the grantee shall have the land for the whole one hundred years or so many of them as are to come at the death of the grantor So if one grant any thing that doth lie in livery or in grant and that is in esse at the time of the grant in fee simple fee taile or for Dier 58. Co. 5. 1. life and the estate is to begin at a day to come this for the most is void howbeit in some cases the livery of seisin will helpe it But Incertainty Pase 7 Jac. Deâ—â—s case a lease for years to begin in futuro is good enough And if a lease be made to one for yeares or for yeares determinable upon lives and after a lease
of twenty years in this case it seemes it is not needfull that the first lessee doe atturne but that the grant is good enough without it If one make a lease to another for twenty years and he make a lease over to a third for ten years rendring a rent and then doth grant the reversion to a stranger in this case it is needfull that the lessee for tenne years doe atturne but if the lease for tenne years be made without any reservation of rent contra For it is a rule That where there is no tenure attendancy remainder rent or service to be paid or done there atturnment is not necessary And hence it is that where one doth grant common of pasture appendant or appurtenant or estovers out of land that there needes no atturnment of the tenant to make this grant good And if a rent or common be granted to one for life and after the reversion of it be granted to another that in this case there need no atturnment to make this second grant good * And so it was agreed in M. 37. 38 Eliz. B. R. And if one make a lease to one for tenne years and then make a lease to another for twenty years in this case the second lease is good for the ten years to come after the first ten years ended without any atturnment of the first lessee If a Lord exchange the services of his tenant with another for Perk. Sect. 249. 259. land in this case the atturnment of the tenant by whom the service is to be done is necessary to perfect this Exchange If there be Lord and tenant in fee simple and the tenant doth Lit. Sect. 562. make a lease to another man of the tenancy for life and the Lord doth grant the Seigniory to the tenant for life in fee in this case the tenant in reversion must atturne to the tenant for life upon this grant of the reversion or the grant is not good If I be seised of a reversion after an estate for years and I grant Hil. 8 Jac. it to the use of my selfe for life and after to the use of another and his heirs in fee and after I grant my reversion for life to another in this case it is needfull that the tenant for yeares atturn to this grant If a lease be made to I S for his life and afterwards another Dier 118. lease is made of the same land to I D for his life in this case it seems that I S must atturn to this second grant or that the grant will not be good An estate of a Seigniory cannot be gained by a disseisin abatement Lit. Sect. 587. or intrusion without an atturnment And therefore if one disseise another of a Manor which is part in demesne and part in services the services are not gained untill the tenants atturn In all cases for the most part where there is no means provided Co. 6. 68. Lit. Sect. 580. 583. 586. Co. super Lit. 321. 314. by law to compell the tenant to atturn there their atturnment in law or in deed is not necessary unlesse there be some speciall default in the grantee Quod remedio destituitur ipsa re valet si culpa absit And therefore an atturnment is not necessary in these cases following viz. c F. N. B. 121. M. Where one doth grant a rent reversion remainder service or seigniory to another by way of devise by a last will and testament or by Letters Patents from the King or where such things are granted by matter of record from a subject to the King f Co 6. 68. super Lit. 321. 2. 35. So when the thing granted doth passe by way of use and doth vest by force of the statute of uses As if one that is seised of land in fee doth make a lease of it for life or yeares to I S and after levieth a fine or doth covenant to stand seised of the reversion of this land or of the land it selfe which is all one to the use of another or doth bargaine and sell the reversion in fee or for yeares in these cases the tenant need not to atturne †Agreed in the Court of Wards Hil. 18 Jac. But if A grant a reversion to B to the use of C and the deed is not inrolled or the use arise not upon consideration of bloud c. in this case if the tenant doe not atturne the reversion will not passe g Calvins case Pasch 7 Jac. B. R. If one by a common recovery suffered grant a reversion to the use of himselfe his wife or children in this case there needsno atturnment of the tenant by the Statute of 7 H. 8. chap. 4. h Lit. Sect. 583. 5 H. 7. 18 19 Co. super Lit. 321. So where one doth come to any such thing by title or seigniory paramount as by escheate surrender or forfeiture or by descent in all these cases and the rest before the atturnment of the tenant is to no purpose neither to passe the thing as to the estate nor to make a privity to distraine or bring action of debt And therefore if there be Lord mesne and tenant and the mesne grant the services of his tenant by fine to another in fee and after the grantee dieth without heire in this case the services of the mesnalty shall come to the Lord paramount and he may distraine for them or bring any action that lieth in privity for them without any atturnment So if lessee for life of a Manor surrender his estate to the lessor there needes no atturnment of the tenants of the Manor to make this estate to passe So if the reversion of a tenant for life be granted to another in fee and the grantee die without heire so that the reversion escheate in this case the Lord may distraine or bring any action of wast c. without any atturnment So if a reversion descend to an heire from his auncestor in this case it will vest in the heire without atturnment and atturnment in this case is not necessary So if the conusee Co. super Lit. 321. of a Statute Merchant extend a seigniory or rent for debt the seigniory or rent shall be vested in him without any atturnment of the tenant If a Copiholder in fee make a lease for yeares by licence of the Lord rendring rent and after surrender the reversion to the Per 3 Justi Trin. 4 Jac. B. R. use of I S in this case it seemes an atturnment of the tenant is not needfull but I S shall have the rent without any atturnment If one grant the reversion of Copihold lands for life or yeares Curia M. 37 38 Eliz. B. R. Co. 2. 35. super Lit. 311. or grant the seigniory of Copihold lands of inheritance in these cases there needs no atturnment of the tenants to make the grants good And so also is the law for an estate at will by
party grantor shall have relation to the Co. super Lit. 310. 11. How an atturnment shall relate time of the grant to make the thing to passe out of the grantor ab initio albeit it be made many years after the grant and therefore all acts done by him after the time of the grant and before the atturnment to the prejudice of his own grant as granting of rents entring into Statutes or the like are void as to the land to charge it and hence it is that if a reversion be granted to an alien and before the atturnment of the tenant he is made denizen in this case the King upon office found shall have the land and yet it shall not so relate as to make the tenants chargeable to the grantee for any mean arrearages or for any wast in the lands from the time of the grant to the time of the atturnment But in respect of a stanger it shall not relate at all And therefore if two deeds be of a reversion at severall times and hee whose deed was made last gets atturnment first the reversion doth passe to him and though the other get atturnment afterwards yet this will not help him by relation and albeit the former grant of the reversion be in fee and the latter for life onely yet the law will be allone in both case And now having done with this we come to a Lease CHAP. XIV Of a Lease A Lease doth properly signifie a demise or letting of lands rentcommon 1. Quid. Terms of the Law Co. super Lit. 43. 45. Justice Dodridge Treatise called The use of the Law Bro. Leases 60. 437. Plow 421. 432. Dier 125. or any hereditament unto another for a lesser time then he that doth let it hath in it For when a lessee for life or years doth grant over all his estate or time unto another this is more properly called an Assignment then a Lease And this albeit it may be made and done by other words yet it is most commonly Assignement and aptly made by the words Demise Grant and Let. And in this case he that letteth is called the Lessor and he to whom it is let Lessor Lessee the Lessee This word also is sometimes although improperly applied to the estate i. the title time or interest the lessee hath to the thing demised and then it is rather referred to the thing taken or had and the interest of the taker therein but in this place it is applied rather to the manner or means of attaining or coming to the thing letten And in this sense it is sometimes made and done by record as fine recovery c. and sometimes and most frequently 2. Quotuplex by writing called a Lease by Indenture albeit it may be made also by deed poll And sometimes also it is as it may bee of land or any such like thing grantable without deed for life or never so many years by word of mouth without any writing and then it is called a Lease-paroll And hence comes the division of a Lease-paroll and a Lease in writing And all these ways it may be made either for life i. for the life of the lessee or another or both or for years i. for a certain number of years as ten an hundred a thousand or ten thousand years moneths weeks or days as the lessor and lessee doe agree And then the estate is properly called a Term of years for Term of years this word Terme doth not onely signifie the limits and limitation of time but also the estate and interest that doth passe for that time These Leases also for years doe some of them commence in presenti and some in futuro at a day to come and the Lease that is to begin in futuro is called an interesse termini or future interest Interesse termini or Future interest Or at will i. when a Lease is made of land to be held at the will and pleasure of the lessor or at the will and pleasure of the lessor and lessee together and such a lease may be made by word of mouth as well as the former Regularly these things must concurre to the making of every See Grant Numb 4. Co. 6. 36. 34 35. 1. 154 155. Co. super Litt. 45 46. Plow 273. 523. good lease 1. As in other grants so in this there must be a lessor 3. Things necessarily required in every good lease and he must be a person able and not restrained to make that lease 2. There must be a lessee and he must be capable of the thing demised and not disabled to receive it 3. There must be a thing demised and such a thing as is demisable 4. If the thing demised be not grantable without a deed or the party demising not able to grant without deed the lease must be made by deed And if so then there must be a sufficient description and setting forth of the person of the lessor lessee and the thing leased and all necessary circumstances as sealing delivery c. required in other grants must be observed 5. If it be a lease for years it must have a certaine commencement at least then when it comes to take effect in interest or possession and a certain determination either by an expresse enumeration of yeares or by reference to a certainty that is exprest or by reducing it to a certainty upon some contingent precedent by matter ex post facto and then the contingent must happen before the death of the lessor or lessee 6. There must bee all needfull ceremonies as livery of seisin atturnment and the like in cases where they are requisite 7. There must be an acceptance of the thing demised and the estate by the lessee But whether any rent be reserved upon a lease for life years or at will or not is not materiall except only in the cases of leases made by tenant in tail husband and wife and Ecclesiasticall persons Of which see infra For the ability and capacity of the lessors and lessees and what 4. What shall bee said a good and a sufficient lease for life or years Or not shall bee said a good lease or not in respect of the ability of the lessor and the capacity of the lessee and the description of their persons the nature and description of the thing demised and what mis-recitall or misnosmer will hurt or not See Grant Num. 1. In respect of the persons of the lessor and the lessee the thing leased the estate property or poslession of the lessor therein 4. and infra Numb 5. 6 7. Leases for life or years or at will may be made of any thing corporall Bro. Leases 23. or incorporall that lieth in livery or grant Also leases for years may bee made of any goods or chattels See for this Grant Numb 4. A man seised of an estate in fee simple in his own right of any Co. 7. 11.
Judges Mic. 20 Jac. et per Just Bridgman And 8 Car. B. R. a thing be or be not done at such a time that the feoffor c. shall reenter to the end that in this case the feoffor c. may have the land and continue in possession untill that time to make a Covenant that he shall hold and take the profits of the land untill that time and this Covenant in this case will make a good lease for that time if the incertainty of the time whereunto care must be had doe not make it void And therefore if A bargaine and sell his land to B on condition to reenter if he pay him an hundred pound and B doth covenant with A that he will not take the profits untill default of payment or that A shall take the profits untill Covenanâ— default of payment in this case howbeit this may be a good Covenant yet it is no good Lease And if the Mortgagee covenant with the Mortgagor that he will not take the profits of the land untill the day of payment of the money in this case albeit the time be certaine yet this is no good Lease but a Covenant onely If one give a Bond for the quiet holding of a Close for three yeares it seemes this is no lease in Law See the opinion of the Parliament for Bonds and Covenants both Stat. 14 Eliz. cap. 11. A Lease for yeares may begin at a day to come as at Michaelmas Co. 5. 1. sup Lit. 48. Plow 156. 197. 3. In respect of the Commencement continuance end of the term or estate Incertaintie next or three or ten yeares after or after the death of the lessor or of I S and it is as good as where it doth begin presently But a lease for life of any thing whatsoever whether it lye in Livery or in Grant if it be in esse before cannot begin at a day to come And therefore if a lease be made Habendum from Michaelmas next or from the day of the making of it or after the death of the lessor or after the death of I S to the lessee for life this lease is not good but in case of a lease of land made thus it is sometimes holpen by the Livery of seisin For which see Livery of Seisin chap. 9. Num. 11. But all leases for yeares whether they begin in presenti or in futuro Co. sup Lit. 45. Co. 1. 155 must be certaine that is they must have a certain beginning and certain ending and so the continuance of the term must be certain otherwise they are not good And yet if the years be certain when the lease is to take effect in interest or possession it is sufficient for untill that time it may depend upon an incertainty viz. upon a possible contingent precedent before it begin in possession or interest or upon a limitation or condition subsequent but in case when it is to be reduced to a certainty upon a contingent precedent the contingent must happen in the lives of the parties And albeit there appear no certainty of years in the lease yet if by reference to a certainty it may bee made certaine it is sufficient Id certum est quod certum reddi potest As for examples if A seised of lands in fee grant to B that when B shall pay to A twenty Co. super Lit. 45. Plow 83. 524. Co. 6. 35. 1. 155. shillings that from thenceforth he shall hold the land for twenty one years and after B doth pay the twenty shillings in this case B shall have a good lease for twenty one years from thenceforth And if A grant to B that if his tenant for life shall die that B shall have the land for ten years this is a good lease And if one make a lease for years after the death of C if C die within ten years this is a good lease if C die within the ten years otherwise not But if A be seised of land in fee and lease it to B for ten years and it is Plow 270. agreed between them that B shall pay to A an hundred pound at the end of the said ten years and that if he doe so and shall pay the said hundred pound and an hundred pound at the end of every ten years that then the said B shall have a perpetuall demise and grant of the premisses from ten years to ten years continually following extra memoriam hominum c. in this case this albeit it be a good lease for the first ten years yet it is void for all the rest for incertainty And if a lease be made to begin from the Nativity of Hil. 16 Jac. in the Ex. chequer Christ and he doth not say which Nativity as next c. it is void for incertainty And yet if a lease for years be made of land in lease Plow 192. 523. for life To have and to hold from the death of the tenant for life this is a good lease So if it be To have and to hold from Michaelmas next after the death of the tenant for life or from Michaelmas next after the determination of the estate of the tenant for life these are good leases So if there be a former lease in being for life Co. 6. 36. or years and another lease for years is made of the land To have and to hold from the end of the former estate by surrender forfeiture or otherwise for twenty years or to have and to hold from the surrender forfeiture or other determination of the former lease if there be any and if there be none for twenty years these and such like leases are good and this commencement is certain enough And if one make a lease to begin after the death of I S and to continue Plow 523. 17 Jac. B. R. Agree untill Michaelmas which shall be in Anno Domini 1650. this is a good lease If a man have a lease of land for an hundred years and he make a Lit. Bro. Sect. 437. Bro. Grant 154. Co. 1. â— 155. Plow 520 521. See Exposition of Deeds lease of this land to another To have to hold to him for 40 years to begin after his death this is a good lease for the whole forty years if there shall be so many of the hundred years to come at the time of the death of the lessor But if the lessor grant the land to another To have and to hold to him for during all the residue of the term of an hundred years that shall be to come at the time of the death of the grantor this is void for incertainty And yet if in this case he grant withall all his estate or all his term or all his interest in the premisses of the deed and then say To have and to hold the land c. to the grantee for all the residue of the terme of an hundred years that shall be
if he be put out of or lose by action the land he taketh in exchange hath a double remedy against the other and yet this remedy doth goe only in the privity and shall not goe to an assignee As if Assignee A exchange land with B and B be put out of all or part of the land upon a title paramount by a recovery in a reall action or otherwise in this case B may either enter upon his owne land againe which he gave in exchange or else if it be in an action brought he may vouch A upon the warranty in law and shall recover as much in value against him of the land he gave as he hath lost of the land he tooke in exchange But if B alien his land taken in exchange to C and C be put out of all or part of the land upon a title paramount C in this case can neither enter upon the land given to A in exchange upon the condition in law nor vouch A to warranty and recover over in value upon the warranty in law And yet A in this case shall have the like remedy against C the alienee upon the condition and warranty both as he had against B. But if A himselfe implead C for the land he gave to B in exchange C may make use of this warranty in law by way of Rebutter against A. And in all these cases where one of the parties is put out of all or part of the Rebutter land or out of part of the estate by entry and the other party enter upon the others land upon the condition in law he may enter upon the whole land and avoid the whole exchange but if he be impleaded for a part only or for the whole and a part only be recovered from him in this case he shall recover so much in value of the other land only as he hath lost and no more As if an exchange be of three acres for three acres and after one of the parties is put out of one of the acres by the entry of a stranger in this case he may enter upon the whole three acres he had given in exchange and so avoid the whole exchange if he will And if A and B be Jointenants for life and the fee simple to the heires of A and A exchange this land with C in fee and then die and B enter and avoid the exchange for his life as he may in this case C may avoid the whole exchange and enter upon his owne three acres againe So if he in reversion disseise his tenant for life and then exchange the land and after the tenant for life enter in this case the other party may defeate the whole exchange But in this case of an exchange of three acres for three acres if one of the acres were gained by disseisin and the disseisee bring an action and doth recover it against the disseisor in this case if he vouch over the other party to the exchange he shall recover so much in value only of the three acres he gave in exchange as the acre he hath lost and no more To the perfection of an exchange and to make things to passe 3. How an exchange must be made And what shall be said a good exchaâ—ge Or not See Grant Numb 4. by this kind of conveyance these things are requisite 1. That the persons or parties thereunto be able to give and take and not disabled by any speciall impediment And for this it must be known that such persons as may be grantors and grantees may make exchanges and such persons as are disabled to grant are disabled to 1. In respect of the parties therunto and their estates make exchanges An exchange made between the King and a subject is good albeit Co. super Lit. 51. the King hold his land in one capacity and the subject in another An exchange made between an Infant and another is not void Infant Idem but voidable only for the Infant at his full age may affirme or avoid it at his election An exchange made between a tenant in taile and another is not Tenant in tail Bro. Eschange 9. Perk. Sect. 279. void but voidable for it is good against himselfe during his life and his issue at his full age may affirme or avoid it at his election An exchange made between a man de non sane memorie and another Bro. Eschange 9. De non sane memorie is not void but voidable for it is good against him but his heir may avoid or affirme it at his election A man that doth hold land in fee simple fee taile or for life in Bro. idem Perk. Sect. 279. the right of his wife may exchange this land and the exchange will Husband in right of his wife be good as long as he and his wife doth live And he with his wife may exchange it for longer time and the exchange is good against him but his wife after his death may affirme or avoid it if she will One Parson or Vicar may exchange his Church or Benefice with Parson Perk. Sect. 288. another and this exchange is good The disseisor and disseisee may joine together and exchange the Perk. Sect. 280. 273. land whereof the disseisin was made with a stranger for other land but if it be made out of the land and before the entry of the disseisee it shall not bind the disseisee for he may avoid it And a disseisor cannot exchange the land he hath gotten by disseisin with the disseisee for other land for this exchange is void unlesse it be by Indenture or fine that it may work by way of estoppell The lessor and lessee may joine together and exchange the land Surrender Perk. Sect. 279. leased for other land and this is good for it shall be said to be the surrender of the lessee to the lessor and the exchange of the lessor and therefore the lessee as it seemes shall have nothing to doe with the land taken in exchange Sed quere of that Jointenants for life the fee to one of them may exchange their Iointenants Terants in common land with a stranger for other land to hold in the same nature and Perk. Sect. 277. 281. the exchange is good But Jointenants tenants in common and coparceners cannot exchange the lands they doe so hold one with another before they have made partition If A and B be Jointenants for life the fee to A and A exchange Perk. Sect. 277. the whole land with another for other land this is good only for his moity as some have said But it seems notwithstanding it is good for the whole untill it be avoided by the other Jointenant The second thing required in a good exchange is that the things Perk. Sect. 263. 261 262. 266. 258. Lit. Sect. 62. Co. super Lit. 51 52. 2. In respect of the
require wherein these 3. In respect of the manner of the making of the exchange And where it shall be good without deed or â—ot things are to be known 1. That if all or part of the things whereof the exchange is made doe lie in severall counties or if all or part of the things whereof the exchange is be such as lie in grant and not in livery albeit it be in the same county in these cases the exchange must be made by deed indented in writing But where the exchange is of lands and of lands lying in the same county albeit it be of any estate of inheritance or free hold yet it may be by word of mouth without writing And so also may it be when the things exchanged doe lie in divers counties when the exchange is made only for a terme of years And therefore if an exchange be made between I S and T K of lands lying in one and the same county in fee or for life it may be by word of mouth but if all or part of the lands of I S lie in one county and all or part of the lands of T K doe lie in another county the exchange must be made by deed indented If an exchange be made of rent for land and the land out of which the rent is issuing and the land given in exchange for it doe both lie in one county this exchange cannot be good without deed So if an exchange be made of the reversion of an acre of land for three shillings of rent issuing out of another acre of land and both acres are in one county this exchange must be made by deed indented or it will not be good So if an exchange be made of an acre of land and a rent out of another acre for another acre of land and common for three beasts and all is in one and the same county this exchange must be by deed indented or it will not be good But if I be seised of a Manor to which I have common appendant or appurtenant and T K is seised of another Manor to which he hath a villaine regardant and both the Manors are in one county an exchange may be made of these Manors by word of mouth without writing and the common and villaine will passe as incidents well enough And yet if I S hath an office whereunto land doth belong and T K hath rent issuing out of the land of a stranger and all the land is in one county and the office is to be used and occupied in the same county if these things be exchanged it must be by deed indented 2. The word Eschange or Exchange Co. super Lit. 50 51 Perk. Sect. 252 253. 9 E. 4. 21. Fitz. Exchange 13. must be had and used between the parties in the making of the exchange As I grant to you white acre To have and to hold to you and your heires in exchange for blacke acre And in consideration hereof you grant to me and my heires blacke acre in exchange for white acre for this word is so individually requisite as it cannot be supplied by any other word neither will any averment that it was in exchange helpe in this case And therefore if A by deed indented give to B an acre of land in fee simple or for life and by the same deed B doth give to A another acre of land in the same manner this cannot enure as an exchange And therefore if no livery of seisin so as it may take effect by way of Grant it is utterly void Livery of seisin But by this meanes lands may be granted from one to another for there needs no livery of seisin So if an exchange be made by words betweene two of lands in one county and before their entry Indentures are made betweene them of the same lands without words of exchange and no livery of seisin is made this shall not passe by way of exchange And yet it hath been held by some that Permutatio or some other word of like effect may supply this word exchange 3. That if any rent reversion seigniory or the like Perk. Sect. 259. 263. 289. 276. be granted by either party that then the tenant doe atturne to the grant for that atturnment is requisite in this case And yet in Atturnment the case of the grant of land in possession in exchange no livery of seisin is needfull Neither is it needfull that either party to the exchange come to the thing given to him in exchange by the same Livery of seisin meane and manner of assurance for if lessee for life of one acre give another acre to his lessor in taile in exchange for a release from him of that acre To have and to hold in taile in like manner this is a good exchange An exchange may be made to take effect in futuro as well as in Perk. Sect. 265. presenti for if an exchange be made betweene me and T K that after the Feast of Easter T K shall have my Manor of Dale in exchange for his Manor of Sale this is a good exchange If an exchange be made in writing of land and it doth limit and expresse no estate that either party shall have in the thing exchanged 19 H. 6. 27. Perk. Sect. 275. yet this is a good exchange But if an estate for life be limited expressely to one and no expresse estate is limited to the other this is not a good exchange as shall be shewed in the next place The fourth thing required in a good exchange is equality of Fitz. Exchange 15. Lit. Sect. 64 65. Co. super Lit. 50 51. Perk. Sect. 276. estate viz. that either party have the like kind of estate of the 4 In respect of the quality or equality of the estates or interests exchanged thing exchanged so that if one have an estate in fee simple the other have so likewise and so for other estates For if the one grant that the other shall have his land in fee simple for the land which he hath of the other in fee taile or that the one shall have in the one land fee taile and the other in the other land but for terme of life or that the one shall have in the one land fee taile generall and the other in the other land fee taile speciall or that the one shall have in the one land for life and the other in the other land but for yeares these exchanges are void and cannot take effect as exchanges m Perk. Sect. 283. And therefore if the Lord release to his tenant his services in taile in exchange for other lands given to the Lord in exchange in taile also this exchange is void for by this release made by the Lord the services are gone for ever n Perk. Sect. 275. Finches ley 27. So if tenant for his owne life exchange with him that is tenant for life of another this
and she make a lease thereof Perk. Sect. 622. to a stranger for life and then take a husband and the lessee surrender to the husband this is no good surrender neither can it enure so because he to whom it is made hath not the reversion in his own but in his wives right It is further also required in every good surrender that if it be Bro. sur 2. 8. Fitz. Partition 5. Perk. Sect. 583. 2. In respect of the place where it is made And where the surrender of lands in one County may be good for the lands that doe lie in another County Or not 3. In respect of the matter or thing And of what things a surrender may be made Or not made by word and without deed that then it be made in the same County where the land to be surrendred doth lie but by writing a man may make a surrender of lands that doe lie in any other County and in what place soever it doth lie And a surrender may be by word or writing of lands lying within the same County in any place out of the land And therefore if tenant for life surrender to him in reversion in any place out of the land within the same County and the surrendree agree to it the freehold is in him presently 3. That it be made of such things of which a surrender Bro. surrend in toto Per. chap. Sur. in toto Co. 5. 11. super Lit. 338. may be made For surrenders may not be made of estates in fee simple or fee taile nor yet of rights or titles onely of estates for life or years nor yet of part of an estate for life or years as if a man have a lease for ten years he cannot surrender the last seven years and keep to himself the three years But otherwise one may surrender any kinde of estate for life as by dower by the curtesie or as tenant in tail after possibility of issue extinct or for years or years determinable upon lives and that of any mesuages houses lands commons rents or the like that are grantable from one to another and such surrenders are good 4. That there be Perk. Sect. 607 608 609. Dier 251. Bro. sur 1. 35. 37. 17. 21 H. 7. 7. 4. In respect of the manner And how and by what words a surrender may be made And where it may be made without deed and upon condition Or not words or words and deeds sufficient to make the mind of the surrendror to appear that he is willing and desirous to part with and yeeld up the thing surrendred into the hands of the surrendree And herein it is to be known that albeit the words Surrender Give or Yeeld up be the most significant proper words whereby to make a surrender yet any other words especially if it be in the surrender of a lease for years that do testifie and declare the will and assent of him that is the particular tenant that he in the remainder or reversion shall have the estate of the tenant be sufficient to passe the estate by way of surrender And therefore if lessee for life or years doe by word or writing say That he will hold the land no longer and wish him in reversion or remainder therefore to enter Or that it is his desire that he shall enter into the land and have it and his estate therein Or that he is content that he shall have his estate or have his lease such or any such like declaration as this made to him in reversion or remainder will be a good surrender So if Hil. 37 El. B. R. Sleigh Batemans case lessee for years deliver his Indenture to a stranger to deliver it and all his estate up to him in reversion and doe appoint the stranger to deliver and surrender it to him in reversion and he doe so and he in reversion accept thereof this is a good surrender but otherwise it is of an estate for life So if the particular tenant doe by the words Give Grant or Confirm passe his estate to him in reversion and he doe enter and agree to it this is a good surrender And by all these surrenders the estates wil passe by way of surrender except it be in some speciall cases where the intent of the parties doth plainly appear to bee that the estate shall not passe by way of surrender But if a lessee for life or years doe onely goe from the house or land and carry away his goods and cattell and so waive the possession for a time either because the lessor shall not distrain them for rent behind or the like and thereupon the lessor doth enter and enjoy it this is no surrender neither is this a good yeelding up of his estate And in such a manner and by such words as before any thing that may be Perk. Sect. 581 582. 583. Fitz. sur 1. Co. super Lit. 338. granted by word without writing may bee surrendred by word without writing so as it be made within the same County where the thing surrendred doth lie And this holdeth true albeit the estate to bee surrendred were created by deed But such things as commons rents advowsons reversions remainders and the like that cannot bee granted without deed cannot bee surrendred without deed And therefore if a lease be made for life the remainder for life by word of mouth without any writing he in the remainder for life cannot surrender his remainder for life without deed So where one hath a rent advowson or the like as tenant in dower or by the courtesie this cannot bee surrendred Dier 251. Bro. Sur. 16. without deed And in case where there is any speciall matter to be contained in the surrender as reservation of rent condition or the like there for the most part it must be by deed or it will not be good And therefore if tenant for life declare himself by word of mouth to be contented and agreed that he in the reversion shall have the land and his estate therein rendring ten shillings a years rent or paying such a summe of money or upon condition that if he survive the lessor he shall have it again Perk. Sect. 624. 623. Co. super 218. c. this is no good surrender And a surrender may be made also upon a condition precedent or subsequent as if it be with reservation of rent that if it be not paid it shall be void but if it be an estate for life that is so surrendred it seems it must be made by writing indented and so likewise it should seem the law is of the surrender of a lease for years upon a condition or however it is most safe so to doe 5. That the surrendree doe agree to and Perk. Sect. 608. Lit. Bro. 163. accept of it for untill then the surrender is not perfect but if the 5. In respect of the agreement of him to whom the
Lit. 276. them this shall enure to both But if the Kings tenant bee disseised by two and he release to one of them this shall not enure to the other So if two jointenants make a lease for life and then disseise the tenant for life and he release to one of them in this case his companion shall have no benefit by it If tenant in fee simple be disseised by two or two doe abate or Lit. Sect. 472. 522. intrude and he doth release to one of them the other shall have no benefit by this But if tenant for life doe after a disseisin done to him release to one of the disseisors this shall enure to both And if two disseisors be and they make a lease for life or Co. super Lit. 276. years and after the disseisee doth release to one of the disseisors this shall enure to them both and to the benefit of the lessee for life also And if lessee for years be ousted and he in reversion disseised and the lessee release to the disseisor the term of years is hereby extinct and the disseisee may take advantage of it and enter presently But if two jointenants in fee be disseised by two disseisors one of the disseisees release to one of the disseisors all his right this shall enure to the other for this extendeth but to a moity If a release be made by a woman of her dower to the guardian Co. super Lit. 266. in Chivalry this shall enure to the heir and he may take advantage of it If tenant for life be disseised by two and he in the reversion and the tenant for life join in a release to one of the disseisors Co. super Lit. 276. this shall not enure to the other But if they doe severally release their severall rights their severall releases shall enure to both the disseisors If mortgagee upon condition after the condition broken be Co. idem disseised by two and the mortgagor that hath the title of entry doth release to the one disseisor this shall enure to both And like law is for an entry for mortmain or a consent to ravishment c. If there be Lord and two jointenants and the Lord release to Co. super Lit. 269. one of them this shall avail his companion If tenant in fee simple make a feoffment in fee and after the Lord release to the feoffor this shall not enure to the feoffee to extinguish the seigniory But if he release to the feoffee this shall enure to the feoffor to extinguish the seigniory If there be Lord and tenant and the tenant make a lease for Co. super Lit. 279. life the remainder in fee and the Lord release to the tenant for life the rent is hereby wholly extinguished and he in remainder shall take advantage of it as when the heir of a disseisor is disseised and the disseisor makes a lease for life the remainder in fee and the first disseisee doth release to the tenant for life this shall enure by way of extinguishment to him in remainder viz. to the lessee for life first and after to him in remainder If two tenants in common of land grant a rent of forty shillings Co. super Lit. 267. out of it and the grantee release to one of them this shall not enure to the other But if one bee tenant for life of lands the reversion in fee to another and they join in the grant of a rent out of the lands and the grantee release either to the tenant for life or to him in reversion this shall enure to the other and extinct the whole rent If two men gain an advowson by usurpation and the right Co. super Lit. 276. Patron release to one of them this release shall enure to them both If two be bound jointly and severally in any obligation or Co. 5. 59. super Lit. 232. Lit. Sect. 376. other especialty and the obligee c. release to one of them this shall enure to discharge the other also if it be a good release as to him that makes it But otherwise it is in case of a release made by the King And if two do a trespasse to another together and he to whom Prerogative it is made doth release it to one of them this shall enure to discharge the other If husband and wife and I S purchase to them and the heirs To husband and wife Dier 319. Co. super Lit. 273. 276. 14 H. 8. 6. of the husband and after I S release all his right in the land to the husband the wife shall have no benefit by this but it shall enure to the husband alone And if there be two women joint disseiseresses the one take a husband and the disseisee release to the other in this case the husband wife shall take no benefit by this And if the disseisee release to the husband this shall enure to him and his wife and the other woman And if one that hath a rent out of my wives land release it to me and my heirs this shall enure by way of extinguishment and my wife will have advantage of it And yet if the words be grant and release the rent to the husband and his heirs in this case the husband may take as a grant if he will But here note in all these cases of releases when one man Co. super Lit. 232. Note will take advantage of a release made to another he must have the release to shew and plead If I bee disseised and I release to the disseisor all actions I Co. 10. 51. 22 H. 6. 1. have or may have against him this is but personall and shall not be expounded to bar my heir after my death of his remedy neither will it bar me of my remedy against his heir after his death So if I deliver goods to another and afterwards I release to him all actions and then he die by this I am not barred so but I may sue his executors See more in Confirmation chap. 18. Numb 7. A release of all actions without any more words is better Co. 8. 153. 5. 28. 70. Kelw. 113 Co. super Lit. 286. 290. 292. 289. Lit. sect 492. 505 506. 512 513. Bro. stat 39. 2. In respect of the thing released Of all actions then a release of all actions reall onely or a release of all actions personall onely for by a release of actions or a release of all manner of actions without more words are released and discharged all reall personall and mixt actions then depending and all causes of suit for any reall or personall thing as Appeals for the death of an ancestor conspiracies suits by Scire facias to have execution of a Judgement detinue for charters And if two conspire to indite me and I release to them all actions and after they goe on with their conspiracy by this release I am barred to
discharge a rent before the day of paiment come By a release of all promises or Assumpsits without more Of promises Adjud Hil. 16 Jac. B. R. Briscoe vers Heires Co. 10. 51. words a man may barre himselfe of a contingent or future thing that by other words could not be released as if a man promise to me that if I S doe not pay me one hundred pound the tenth of March next that he will pay it me the twentieth of that moneth and before the time I release to him all actions and demands this will not discharge the promise But if I release to him all promises this will barre mee Et sic de similibus By a release of all Judgements without more words is he Lit. Sect. 507. Co 8. 151. super Lit. 290. that maketh it barred of the effect of any Judgement he hath Of Judgements Of Executions against the relessee for if execution be not taken out he is now barred of it And if the relessee or his land c. be in execution he and it shall be discharged thereof by Audita Querela And by a release of all executions without more words a man is barred of taking or having out of any execution upon any Judgement either before Scire facias or after But if after execution be made by Capias ad Stat. Elegit or fieri facias the Audita Querela plaintife release to the defendant all executions he cannot plead such a release but he must have an Audita Querela and that he may have to discharge him of execution By a release of all appeales are discharged all appeales of Co. super Lit. 287 288. felony of death of robbery of rape of burning of larceny Of Appeales depending and all causes not yet moved also By this release of all advantages it seems actions of debt upon Of Advantages account are discharged Co. 8. 150. By a release of all conspiracies all conspiracies past are discharged Kelw 113. Of Conspiracies and such also as are only begun and shall be prosecuted and perfected after the release are likewise hereby discharged By a release of all forgeries before publication the forgery is Of Forgeries Co. 10. 48. discharged but not the publication and therefore the relessor may take his remedy for that notwithstanding A release of all demands is the best release of all and this Of Demands or Clâ—imâ—s Co. super Lit. 291. Co. 8. 54. Lit. Sect. 501 509 510. word is the most effectuall word of all and doth in deed include and comprehend within it most of all the releases before By a release therefore of all demands without more words are released all rights and titles to land warranties conditions annexed to estates before they be broken or performed and after they be broken Also by this release are released and discharged all Statutes Obligations Contracts Recognisances Covenants Rents Commons and the like Also all manner of actions reall and personall Appeales Debts duties Also all manner of Judgements Executions Also all Annuities and Arrearages of Annuities and Rents And therefore if a man have a title of entry by force of a condition c. or a right of entry into any lands by such a release the right and title is gone And if a man have a rent-service rent-charge estovers or other profit to be taken out of the land by such a release to the tenant of the land it is discharged and extinct And therefore if a termor for yeares grant the land by indenture to A rendring rent and at the end of the first yeare Adjudg B. R. pasc 17 Jac. Wottons case he release to the grantee all demands the rent is hereby extinct during all the time And a release of all claimes it seems is much of the same nature But by a release of all demands or of all claimes is not released Co. 5. 70. any such thing as whereof a release cannot be made as a meere possibility or the like Neither will this release discharge a covenant or promise that Hil. 4 Jac. B. R. Hancocks case adjudge is future and contingent before it be in being Nor a covenant before it is broken and therefore if the lessee of a house covenant to leave it as well in the end of his terme as it was in the beginning of his terme and before the end of the terme the lessor release to the lessee all demands this is no barre to an action brought for a breach of the covenant afterwards And if a man in consideration of a summe of money given to Hil. 6 Jac. B. R. Belcher Hudsons case him by a woman sole assume to her that if shee mary one M that he will pay to her after the death of M one hundred pound by the yeare if shee survive him and shee mary him and the husband release all demands and then die this is no barre to the duty So if one promise a woman that if shee will mary him that he will leave her worth one hundred pound if shee doe survive him and before the mariage shee release to him all actions and demands this doth not discharge the promise And note that all these words are of the same force when they are joined with other words as when they are alone Note If two tenants in common of land grant a rent-charge of Co. super Lit. 267. forty shillings out of it to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of law is severall If one have severall causes of action against two and make a joint release to them this shall be taken to be a release of all 19 H. 6. 4. joint and severall causes of action So if an executor have some cause of action for himselfe and Bro. Release 31. 29. some for his testator and he release all Actions indefinitly this release doth discharge both sorts of actions If the tenancy be given to the Lord and a stranger and to the heires of the stranger and the Lord release to his companion Co. super Lit. 280. all his right in the land this shall enure not only to passe his estate in the tenancy but also to extinguish his right in the Seigniory If there be Lord and tenant of two acres and the Lord release all his right in one of them to the tenant hereby the Perk. Sect. 71. Bro. Release 85. 9 E. 3. services are extinct for both So if one have a rent charge out of twenty acres and release all his right in one acre hereby all the rent is extinct And yet if A lease white acre to B for life rendring rent and afterwards doth release part of the rent this is good only for such part If I be seised of land in fee and I make a lease of it to one for life and after I
That the debt recovered against the defendant shall be levied of my goods and chattels c. And these also are much of the nature of the former kinde of Recognisances And all Prerogative Obligations made to the King are of the nature and have the force of a Recognisance Statutes and Recognisances are sometimes single without any Defeasance and sometimes they are double i. e. With a Defeasance or Condition upon the performance whereof the same are to be avoided The Debtor or he that doth enter into the Statute or Recognisance Conusor Co. â—â—e is called the Recognisor or Conusor and the Debree or hee to whom it is made is called the Recognisee or Conusee To make a good Statute or Obligation of Record the 3. What shall be said a good Statute or Recognisance and what not First in respect of the persons before whom it is acknowledged forme prescribed must bee pursued 1. In respect of the persons Dyer 35. Litt. Broo. Sect. 484 511 F. N. B. 267 a. before whom And therefore the Statute Merchant or Staple or the Recognisance founded upon the Statute of 23 H. 8. may not bee acknowledged before any others besides the persons appointed by the Statutes Neither may any other Recognisance bee acknowledged before any but such as either have power ex Officio and by their Offices to take them or have speciall Commission so to doe And therefore a Recognisance Dyer 220 taken by a Constable is void If a Recognisance bee made to the Lord Keeper and two others and it bee acknowledged before himselfe this is void as to him 2. In respect Secondly in respect of the manner of making it of the manner of making and acknowledging of it And therefore if the substantiall forme appointed by the Statutes be not observed it will be void If therefore a Statute Merchant be not Hollingworth versus Ascughe Pasche 35 El. Co. B. Adiudge sealed with the Seale of the Dâ—btor and there bee not a Seale of two peeces annexed to it this is no good Statute neither can it take effect as a Statute howbeit in this case if it be delivered by the party it may take effect as an Obligation But if Obligation the variance from the Statutes bee only in some circumstance this will not hurt a Statute or a Recognisance And therefore it is held That albeit there bee no time set for the payment of the money in the Statute yet the Statute is good for then it is due presently And albeit the Statute be written Perk. 3. Iustices Co. B. Trin. 22 Iac. with anothers hand and not with the hand of the Clerk of the Statutes or the like yet is the Statute good enough And if a Statute Staple bee not sealed with the Seale of the party that doth acknowledge it yet it seemes it is good enough for the Statute doth not require it but a Recognisance within the Statute of 23 H. 8. cannot bee good except the Seale of the party bee to it for so are the words of the Statute If a Recognisance or a Statute bee to pay money at severall Coo. 8. 153. dayes it is good enough and if the Conusor faile one day Execution may bee sued of the whole Statute Every Statute Staple or Merchant not brought to the Clerk of the Recognisances within foure Moneths next after Stat. 27 Eliz. cap. 4. the acknowledging to enter a true Copy thereof shall bee void against all persons their Heires Successors Executors Administrators and Assignes onely which for good consideration shall after the acknowledging of the same Statute purchase the Land or any part lyable thereunto or any Rent Lease or profit out of it The proceedings upon a Statute or Recognisance to have Fitz. Accompt 97. Execution in toto Broo. Statute in toto Stat. Actâ—â— Bartel de Mercatoribuâ—â—â—7 Ed. 3. c. 9. F. N. Br. 130 131 132 Dyer 1â—0 15 H. 7. 15. Coo. 4. 69. 7 H. 7. 12. Plow 61 62 82. Coo. super Lit. 290. Stat. 2 H. 8. c. 6. 5 H. 4. c. 12. 2 R. 3. 7. 14 Ed. 3. â— Lit. Broo. Sect. 194. 123. 226. Dyer 299. Coo. 5. 87. 4 82 59 66 Stat. 1 â—il 6. c. 10. â—iâ—ch 116. the fruit and effect thereof is not like to the proceedings in other 4. All the proceedings upon a Statute or Recognisance and the manner and order of Execution thereupon cases of Suits upon Obligations and the like to reduce them to judgement but as they are in their own nature much like to the nature of a judgement so is the proceeding and execution thereupon much like to the proceeding and execution upon a Iudgement And therefore the Conusee may if hee please bring an Action of debt upon a Statute and wave all other proceeding or otherwise if he like not this course he or if he be dead his Executor or Administrator and if his Executor be dead the Executor of his Executor may assoone as the same is forfeit have present Execution of it after this manner Hee must bring his Statute to the Mayor and Clerk or other Officer before whom it was acknowledged and there if they finde the Record of it and the day to be past for the payment of the money they are to apprehend and imprison the body of the Conusor if he be a lay-person and can be found within their jurisdiction and if he cannot be found there they are to certifie the Record into the Chancery which also if they refuse to doe they may be compelled unto by a Certiorare Certiorare And if that Certificate be faulty or execution be not done upon it by reason of the death of the Conusee or otherwise the Conusee or his Executor or Administrator may have another Certificate And thereupon in case of the Statute Merchant he shall have a Writ of Capias out of the Chancery directed to the Sheriffe of the County where the Conusor lives to apprehend and imprison him if he be not a Clergy man and this is to be returned in the Common-Pleas or Kings Bench. And when the Conusor is taken he shall have time for a quarter of a year to make his agreement with the Conusee and to sell his lands or goods to satisfie the Conusee And for that purpose he may sell his lands or goods albeit he be in prison and his faile is good and lawfull And if in that time he doe not satisfie the Conusee or if upon the Capias the Sheriffe returne Capias a non est inventus then by another Writ or by divers Writs if the lands or goods lie in divers Counties called an Extendi Facias And in the case of a Statute Staple presently after the Certificate into the Chancery the Conusee shall have a Writ to take his body and extend his lands and goods returnable in Chancery And this Extendi Facias Quid. Writ is a Commission directed to the Sheriff
by a day of the same land and before the day the feoffee enter Littl. Sect. 3â—8 into a Statute or a recognisance this land shall be subject unto execution untill the feoffor reenter for the breach of the condition If one be disseised of land and then enter into a Statute this Coo. 2. â—9 land shall not be subject to execution and yet if the Conusor do after recover the land by entry or action it shall be lyable to execution The goods and chattels whereof the Conusor is solely possessed Stat. de Merâ—â—t r. bus Co. 3. 11. 12. â—lâ—â— 52â— Coo. c. â—â—1 5. 92. Dyer 6â— and possessed in his own right and the goods and chattels of which he is joyntly possessed with another and the goods and chattels he hath in the right of his wife are liable to execution But the goods or chattels that he or his wife hath as Executor or Executrix to another or as pledged only it seems are not subject to execution And if the Conusor deliver goods to another to deliver over to I S these goods before they be delivered over are liable to execution And if hee have leases for yeares in the right of his wife and die before execution be done it seemes these leases are liable to execution Sed quaere But if the Conusor have goods in his custody of another mans or have goods he hath distrained in the nature of a distresse these are not liable to execution All the lands tenements and hereditaments which the Conusor had at the time of the Statute or Recognisance entred into or at 3. In respect of the time Coo. 3. 12. Stat. de Mer catoribuâ— any time after into whose hands by what means soever the same are betide and come at the time of execution are subject and liable to the execution But the lands the Conusor had and did put away before the time of the Statute or Recognisance entred into are not liable to execution And all the goods and chattels the Conusor hath and are found in his hands at the time when the execution is to be made by the Extendi facias are liable to the execution But the goods and chattels he had and did Bonâfide do away before the time of execution done are not liable to the execution And of all these things before subject to execution the Conusee may take all or part at his pleasure And therefore if the Conusor 4. In respect of the quantity 〈◊〉 Stâ—â—â—â— 4. 2. 25. Pâ—â— 72. Sâ—◠〈◊〉 have sold his lands to divers persons or have sold some of his lands to divers persons or to one man and keep the rest in his hands or it descend to his heire the Conusee may sue execution upon the lands in either of their hands at his election so that if the Cognisee after the Statute entred into and before execution purchase part of the land of the cognisor he may notwithstanding have execution upon the residue in the hands of the Conusor or in the hands of his heire and yet so that in some of these cases his execution may be afterwards avoided and he he compelled to sue execution againe The Cognisee upon other Recognisances shall have the same Weston 2. chap. 13. Plow 72. Coo. 3. 12. Dyer 30â— Kelw. 100. things in execution as a man shall have after a judgement in a Suite in the Kings Bench or Common-Pleas by Fieri facias or Levari facias all his goods and chattels and by Elegit the Moity of his lands and all his chattels besides the Cattell of his plow and implements of husbandry But in these cases he cannot take the body of the Conusor in execution unlesse it be upon a new Suite or in case of baile in the Kings-Bench Howsoever by the Common-law after a full and perfect execution had by extent returned and of record there shall never be any Stat. 32. H 8. chap. 5 â— Where a man shal have a Reextent or â— new execution And where not reextent yet by a speciall Act of Parliament it is provided That if after lands c. be had in execution upon a just or lawfull title wherewith all the said lands c. were liable tied or bound at such time as they were delivered or taken in execution they shall be taken or recovered away from him before he hath received his full debt and damages in this case after a Scire facias had against the Conusor his heirs executors administrators or purchasors he or his executors or administrators if he be dead shall have a new execution to levie the residue of the debt and dammages then unsatisfied Wherein these things are to be observed 1. In case where the Coo. 4. 66. 82. Plow 61 15. H. 7. 15 Coo. super Litt. 99. Kitch 116. Conusee is unlawfully and wrongfully disturbed either by the Conusor or by a stranger in the taking of the profits of the land delivered to him in execution there hee may and must bring his action and recover damages and these damages shall goe toward his satisfaction for in this case and for this disturbance hee shall not hold the land a day the longer And where he is hindred by his own neglect or act in the taking of the profits of the land as where his debt is 40l and he hath 10l a yeare delivered to him by which be may satisfie himself in four yeares and within the time hee make a conditionall surrender to the Conusor and enter for the condition broken in this case hee shall not hold the land over neither shall he have any Reextent And where the let or disturbance is such as wherein the Conusee hath remedy given him by the Common-law to hold the land over after the disturbance removed in this case he shall have no new execution nor reextent within this Statute for where the Conusee hath remedy in praesenti for part or in futuro for all or part this Statute extendeth not to it And therefore where the Conusee is hindred in the taking of the profits of land by the act of God as by fire overflowing of water or the like or the act of the party Conusor or any by or under him as when one is bound to A in a Statute of 100l and after to B in a Statute of 200l and B extendeth the land first and then A extendeth the land and taketh it away from B or when the Gardian in Chivalry doth put out the Conusee by reason of the Wardship of the Heire of the Conusor or the wife of the Conusor doth claime her dower and put out the Conusee or one disseise his lessee for life or out his lessee for years and then acknowledge a Stature and after execution is sued against him and then the land is delivered to the Conusee and after the lessee for life or yeares doth enter in all these cases because by the Common law the Conusee may hold
revoke the same at any time in her life time or after her death before the Will be proved But a woman after contract with any man may before the marriage make a Testament aswell as any other and is not at all disabled hereby An Infant untill he be of the age of 21 yeares can make no An Infant Testament of his lands by the Statutes of 32. 34. H. 8 But Sâ—ar 32. Ed. 34. H. 8. cap. 5. Perk. Sect. 503. â—04 Br. Custome â—0 Swâ—â— â—7 38. by speciall custome in some places where land is devisable by custome he may devise it sooner And of his goods and chattels if he bee a boy he may make a Testament at fourteene yeares of age and not before and if a maid at twelve yeares of age and not before and then they may do it without and against the consent of their Tutor Father or Guardian o Coo. super Litt. 89 And yet some say an Infant cannot make a Testament of his goods and chattels untill he he be eighteene yeares of age p Perk. Sect. 503. 504. 24. Swinb 37. 40. A madd or lunatick person during the time of his insanity of mind cannot make a Testament of A Lunaticke person lands or goods but such a one as hath his lucida intervaâ—la cleere or calme intermissions may during the time of such quietnesse and freedom of mind make his Testament and it will bee good So also an Idiote i. such a one as cannot number twenty or tell An Idiot what age he is or the like cannot make a Testament or dispose of his lands or goods and albeit he doe make a wise reasonable and Swinb 39. 40. sensible Testament yet is the Testament void But such a one as is of a meane understanding only that hath grossum caput and is of the middle sort between a wise man and a foole is not prohibited to make a Testament So also an old man that by reason of his great age is childish againe or so forgetfull that he doth forget An old man Swinb 42. his own name cannot make a Testament for a Testament made by such a one is void So also it seemes a drunken man that is so excessively drunk that he is deprived of the use of reason and understanding during that time may not make a Testament for it is requisite when the Testator doth make his will that he be of sound and perfect memory q Coo. 6. 23. Hill 3. Car. per the Lord keeper in the Chancery i. e. that he have a reasonable memory and understanding to dispose of his estate with reason r Swinb 53. A man that is both deafe and dumb and that is so by nature cannot make A deafe and dumb man a Testament But a man that is so by accident may by writing or signes make a Testament And so may a man that is deafe or dumb by nature or accident And so also may a man that is blind s 〈◊〉 B. R. 7. Iac. An alien borne cannot make a Testament of lands or goods An alien A man that is entred into Religion cannot make a Testament t Stat. 5. 6 Ed. 6. c. 11. Swinb 54. A Traitor attainted from the time of the Treason committed can make A Traitor no Testament of his lands or goods for they are all forfeit to the King but after the time he hath a pardon from the King for his offence he may make a Testament of his lands or goods as another man A man that is attainted or convict of Felony cannot make a Testament of his lands or goods for they are forfeit but if a man Preâ—â—gativa Regis Plow 258 259. A Felon be only indicted and die before Attainder his Testament is good for his lands and goods both And if hee be indicted and will not answer upon his arraignment but standeth mute c. in this case his lands are not forfeit and therefore it seemes hee may make a Testament of them And if a man kill himselfe his Testament as to his goods and chattels is void but as to his lands is good Plow 261. A â—elo de se A man that is outlawed in a personall action cannot make a Testament of his goods and chattels so long as the outlawry doth continne Fitz. Dec. 16. An outlawed person in force but of his lands he may make a Testament The head or any of the members of a corporation may not make a Testament Fitz. Testament 1. A Corporation of the lands or goods they have in â—ommon for they shall goe in succession A Villaine cannot make a Testament of his lands A Villaine or goods after the Lord hath seised them But here note that howsoever the Testaments of Traitors Aliens Felons Out-lawed persons and Villaines be void as to the King or Lord that hath right to the lands or goods by forfeiture or otherwise yet it seemes the Testament is good against the Testator himself and all others but such persons only And here note further also By the civill law Swinb 155 c. See the Stat. 32. 34 H. 8. Perk. Sect. 496. also the Testaments of divers others as Excommunicate persons Hereticks Usurers Incestuous persons Sodomites Libellers and the like are void But by our law the Testaments of such persons at least as to their lands are good by the Statutes that do enable men to devise their lands But all other persons whatsoever male or female old or young lay or spirituall rich or poore at any time before their death whiles they are able to speak so distinctly or write so plainly as another may understand them and understand that they understand themselves may make Testaments of their lands goods and chattels and that albeit they have sworne to the contrary and none are restrained of this liberty but such as are before named * See more infra at Numb 7. Swin 9. 131. 324. 325. See more infra to this matter The second thing required to the making of a good Testament is Secondly in respect of the mind of him that doth make â—t that he that doth make it have at the time of the making of it Animum testandi 〈◊〉 a mind to dispose a firme resolution and advised determination to make a Testament otherwise the Testament will be void for it is the mind not the words of the Testator that doth give life to the Testament for if a man rashly unadvisedly incidently jestingly or boastingly and not seriously write or say that such a one shall be his Executor or have all his goods or that he will give to such a one such a thing this is no Testament nor to bee regarded And the mind of the Testator herein is to bee discovered by circumstances for if at the time hee bee sick or set himselfe seriously to make his Testament or require witnesses to beare witnesse of
after to make his Will by And yet if it can bee proved that the Testator did declare himselfe that this should be his Will this will be a good Testament and a good proofe of it 3. If it bee proved the Testator said his Testament was in such a Schedule in the hands of I S and I S produce a writing deposing 〈◊〉 to be the same it seemes this is a sufficient proofe but if he say withall it is written with his own hand then it seemes some other proofe as by comparing hands or the like that it is his hand wherein it is written will be expected 4. If the Witnesses will prove the writing produced to be the last Will of the Testator or that hee said it was or it should be his last Will or that it is the same writing that was shewed unto them and whereunto they are Witnesses albeit they never heard it read or set their hands to it it is a sufficient proofe 5. All persons male and female rich and poore Witnesse competent to 〈◊〉 a Testament are esteemed competent Witnesses to prove a Will save only such Swinb paâ—t 4. Sect 21. as are infamous as perâ—uâ—ed persons and the like and such as want understanding and judgement as children infants and the like and such as are presumed to beare affection as kindred tenants servants and the like A Legaâ—ee is reputed a competent Witnesse to prove any other part of the Will but his own Legacy or to prove any thing against himselfe touching his own Legacy but not otherwise And therefore where there be but two Witnesses of a Will wherein either of them hath somewhat bequeathed unto himselfe this Will cannot be sufficiently proved for those Legacies but for the rest of the Will it may be sufficiently proved 6. Where there is no question nor oppoâ—â—tion moved or had about or against a Testament there the Oath of the Executor alone is esteemed a sufficient proofe of it and in that case regularly no other proof is required And where more proofe is necessary as in the cases before it is in the discretion oâ— the Ordinary what proofe to admit and allow And those Witnesses for number nature and quality or that other proofe that he â—oth deeme and accept for sufficient is sufficient and the Testament so proved by such Witnesses or other proofe is sufficiently proved And of this question see more infâ—a at Numb 7. A Testament sufficient and good in his câ—â—aâ—ion and beginning 〈◊〉 Where 〈◊〉 how a Testament good in his â—eginning may become void by 〈…〉 oâ— not Coo. 4. 61. 〈◊〉 Sect. 〈◊〉 Plow â—â—4 〈◊〉 Swinb 〈◊〉 7. Sect. 14 〈◊〉 Perk. Sect. 4â—â— Coo. 〈◊〉 〈◊〉 〈◊〉 8â— 8â— may â—â—terwards become void by divers meanes as 1. By Countermaund or Revocation and this is sometimes by the party himselfe that made it and sometimes it is by another And sometimes it is expresse and sometimes it is implyed for it is a rule That any Act or thing done or words spoken by the Testator after the Testament made that doth aâ—ter or crosse all or part of his Testamenâ— made before is a Revocation of it or of that part thereof that is so crossed and altered And therefore if a Feme Covert make a Testament and after take a husband by this the Testament is revoked And if a man make a Testament of land and after make a Feoffment of the same land which Feoffment is not good for some defect in the Livery of Seisin or otherwise so that the Feoffor dyeth seised of the land notwithstanding hereby the Testament as to this land is revoked So if a man make a latter Testament and therein by expresse words doth revoke the former Testament or if a man by any writing or by word of mouth * Dâ—eâ— 31â— 34. Eliz. B. R. Buttons case for one may by word of mouth revoke a Will in writing albeit it be of land doe expresly revoke a former Testament that he hath made and make no new Testament for so a man may do and die intestate if he will or if a man make a latter Testament make no mention of the former Testament all these are Countermaunds of the former Testament And the latter Testament doth alwayes revoke the former and that albeit the Executor of the latter doe refuse the Executorship or die during the life of the Testator or after his death and albeit the King be made Executor of the former and albeit the former be a written and the latter but a Nuncupative Testament and this holdeth true in a Testament of lands as well as in a Testament of goods and chattels but otherwise it is è converso for however a man may by word avoid a Will made in writing that is good yet a man cannot by word make good and affirm a Will made in writing that is void And therefore if a man devise his land in writing to I S and his heirs and I S die before the Devisor and after the Devisor say by word That the heires of I S shall have the land as I S should have had it if he had lived this verball declaration will not affirm the disposition Also the latter Testament doth infringe the former albeit there be no mention made in the latter of revoking of the former and albeit there bee twenty Witnesses of the former and but two or none of the latter and albeit in the former the Executor be appointed simply and without condition and in the latter he be appointed conditionally and the same condition be also broken so that the condition be of something then to come at the time when the condition was made but if the Executor of the latter Testament bee made upon some condition then present or past the condition not existing the former Testament is not revoked and albeit the former Testament be made irrevocable i. e. That the Testator say I make this my last Will and Testament irrevocable and albeit the Testator hath sworn not to revoke the former the Oath being also revoked together with the Testament and albeit the Testator enter into an Obligation with condition not to revoke it but then in this â—ase he doth forfeit his Obligation But the latter Testament doth not revoke the former Condition in these cases following i. e. when the latter is imperfect in respect of Will i. e. when the Testator dyeth whiles he is making of it and before he can finish it or when it is veâ—emently suspected that the Testator was compelled to make the latter by feare or violence or induced to make it by fraud and deceit or when the former was made by the Testator whiles he was in his good and perfect minde and memory and the latter is made by him when he is inops mentis or when the latter is made by the perswasion and for the benefit of certaine persons when the Testator is in extremity of sicknesse unlesse it
those two parts at his pleasure and no more for the third part must discend to the heir and come to satisfie the Lord his duties and therefore the Devise of the whole land in this case is void for the third part He that hath any such land held by Knights Service in Capite and other lands held by Socage Tenure may devise two parts of the whole and no more or any rent c. out of it at his pleasure He that doth hold land of the King by Knights Service only and not in Capite or if a meane Lord by Knights Service and hath also other lands held by Socage Tenuâ—e may devise two parts in three of all the land held by Knights Service or any rent c. out of it and all his Socage land at his pleasure So that now by these Statutes a man that hath lands in Fee-simple may devise them in Fee-simple Fee-taile for life or yeares absolutely or conditionall at his pleasure And therefore if one devise his land to one for life the remainder in Fee or Fee-taile to another or devise his land to B the remainder to the next heir male of B and the heires males of the body of such heire male or the like these are good Devises But for the more full understanding of these things it it to be known in the next place 2. That this Statute doth not enable men to devise land that are See the Statute Coo. super Litt. 111. Perk. Sect. 544. Lut. Sect. 287. Dveâ— 210. old N B 89. Perk Sect. 500 539 540. 496 497 498. disabled by Law in respect of their persons or minds as Infants women Covert men de non sane memory or the like nor such as are disabled in respect either of the nature of their land as Copi-holders for Copi-hold-land is not devisable or of the estate they have in the land as Tenants in Taile or pur autervie or Ioynt-tenants for these can no more devise the land they doe so hold then they could before the Statute But such as are seised of land in Common or Coparcenery may devise their land as well as those that are sole sâ—ised And if two be Ioint-tenants for life the Fee-simple to one of them he that hath the Fee-simple may devise his Fee-simple after the death of his companion Neither doth this Statute enable those that are seised of lands in Fee in the right of their houses and Churches to devise the same lands And therefore Bishops Deanes Pâ—rsons Vicars Masters of Hospitals or the like can no more devise the lands belonging to their Bishopricks c. then they could before the Statute but the lands they are seised of in their own right they may devise like other men 3. Heridiments that are not of any yearly value are some of them devisable 〈◊〉 10. 81. 〈◊〉 32. super 〈◊〉 111. and some not for if the King grant to one and his heirs bona catalla felonum fugitivorum vel ut lagatorum Fines and Amercements within such a Manner or Village in this case the owner can neither devise these things to another as part of the two parts nor leave them to discend for a third part And yet if one have a Mannor unto which a Leet Waife Estrayâ— or the like is appendant or appurtenant there by the Devise of the Mannor with the appurtenances these things may passe as incident to the Mannor But if a man have a Hundred with the goods of Felons Out-lawes Fines Amercements Retornabrevium and other such casuall Heriditaments within the same Hundred and these have been usually let to Farm for a rent in this case these things may be devised or left to discend for a third part 4. Such incertaine Franchises as before that are Heriditaments of no yearly value albeit Coo. 10. 8â— 82. super Litt. 111. Coo. 3. 35. 30. 34. they are not devisable yet may restâ—aine the devise of a mans lands and tenements and make it void for a third part if they be held in Capitâ— for if it is not requisite that the thing held by the Tenurâ— in Capite be deviseable and such things as may not bee left to discend to the Lord for a third part and to satisfie him his duties may notwithstanding be devisable or restraine the Devise of other lands and tenements and make it void for a third part And therefore a Reversion upon an estate taâ—le which is dry and fruitlesse if it be holden of the King by Knights Service in Capitâ— will hinder the Devise of the third part of a mans lands and tenements Also an estate taile of lands held in Capite may restraine the Devise of a third part of other lands And therefore if such lands be conveyed to one and the heirs of his body the remainder to another and he have other lands in Socage if he have any issue he can devise but two parts of his Socage land And where the Statute speaks of a remainder it is to be intended of such a remainder only as may draw Ward and marriage by the Common-Law and this is that remainder only that doth hinder a Devise And therefore if A be seised of lands in Socage Tenure and B be seised of lands in Fee held in Capite by Knights Service and B make a Lease for life or gift in Taile to C the remainder to A in Taile or in Fee in this case A during the estate for life or in Taile may devise all his Socage land notwithstanding this remainder But if a man make a Lease for life or yeares and after grant the reversion for life or in Taile the remainder in Fee and after the Grantee for life dyeth or Donee in Taile dyeth without issue in this case this remainder which now is in point of reversion will restraine the Devise of other lands and make it void for a third part 5. In all Coo. 10 81. 11 24. 3. â—0 34 35. supeâ— Lâ—â—t â—â—1 Dyer 158. cases where a man is restrained to devise any part of his lands held in Socage hâ— must have lands held in Capite at the same time and therefore the time of having of lands to devise and holding of other lands in Capite and disposing of the lands to be devised must concurre And therefore if a man be seised of an Acre of land in Fee held of the King in Chiefe by Knights Service and of other two Acres in Fee held in Socage and enfeoffee his younger sonne of the Acre held in Capite and of one of the other Acres or convey it to the use of his wife or for the paiment of his debts c. and after purchase land held in Socage in this case he may devise all the new purchased land held in Socage without restraint So if a man bee seised of lands held by Knights Service in Capite in possession reversion or remainder and of lands held in Socage and by his Will in writing doth devise all
the said lands and after the land held in Capite is recovered from him or aliened by him bonâ â—ide in these cases the Devise is good for all the land held in Socage And hence it is That if the King grant land to one in Fee Farm to hold in Socage at a rent and after grant this rent to another and his heires to hold in Capite and the Grantee of the rent doth grant it to him that hath the land in this case because the rent is extinct and he cannot be said to hold lands in Capite this shall not restraine the Devise of any of his lands And yet if a man hold some lands by Knights Service in Capite and other lands in Socage and bee disseised of the lands held in Capite he cannot devise all his Socage land but the Devise will be void for a third part for he is said to have that land still whereof hee hath the right And albeit the Statute say that he that hath lands held of the King in Capite and other lands in Socage may give two parts for the advancement of his wife paiment of his debts preferment of his children whereby he is restrained to devise any more And therefore if by act executed in his life time he convey two parts to any such uses or intents he cannot devise any more by his Will but the residue must discend yet this also is to be intended of the land he hath at the same time For if a man be seised of land held in Socage of the yearly value of 20l. per annum and he hath not any land held in Capite by Knights Service and he make his Will in writing and by it devise his Socage land to one in Fee and then purchase land of the value of 20 s. per annum held in Capite and die this will make the Devise void for a part of the land that is held in Socage But if a man seised of land in Fee of Socage Tenure assure it to the use of his wife for her â—ointure and after purchase lands held in Capite by Knights Service he may devise two parts in three of all this Capite land and the King shall not have any thing out of or for the Socage land If a man seised of lands part of which are Coo. 3. â—4 〈◊〉 â—4 held in Capite and part in Socage make a Feoffment of the lands held in Capite being two parts in three of the whole to the use of him and his wife for life with divers remainders over in this case he may not devise any of the Socage land And if a man have no Socage land but Capite land and convey it away iâ— Fee-simple keeping no Reversion to any such use and after purchase Socage land he may devise all the Socage land newly purchased 6. As Coo. 3. 32. the Testator enabled to devise by this Statute without restraint is and must be one that hath the land he doth devise at the time of the Devise made and no other land then to be an impediment to his Devise so he must have a sole estate as well in the land he doth leave to discend to the heir as in the land he doth Devise And therefore if lands held in Capite be conveyed to a man and his wife and the heirs of their two bodies and this man hath other lands whereof he is sole seised held of the King in Capite by Knights Service in this case he may not devise two parts of the whole supposing this may suffice for the Kings third part for he may devise but two parts of the residue i. e. of that whereof he is sole seised either at the time of making of the Will or at the least at the time of the death of the Testator 7. The estate of the land that is held must continue after Coo. 10. 8â— the death of the Tenant otherwise it will be no restraint And therefore if Tenant in Taile be to him and the heirs males of his body the remainder in Fee to another of Lands held by Knights Service in Capite and he is seised of other lands in Socage in Fee and by his Will in writing devise all the Socage land and die without issue male in this case the Devise is good for all the Socage land And so also it is where the estate the Ancestor had of the land held is defeated by condition 8. That which a man cannot dispose by any act in his life time shall not be taken for any such Mannors c. Coo. 〈◊〉 32. whereof a man may devise two parts by authority of this Statute at his death And therefore in the case of an indevided estate of lands between husband and wife where the husband can make no disposition for longer time then during the Coverture these lands are not to bee esteemed such as are to be accounted amongst the lands whereof two parts in three are devisable 9. The Tenure by Coo. 10. 84. 3. 34. Knights Service must continue after the death of the Devisor otherwise the land so held will be no restraint And therefore if the King grant land to one and his heires to hold during his life by Knights Service in Capite and after in Socage or to hold during his life in Socage and after by Knights Service in these cases the Grantee may devise all his land notwithstanding the Tenure of this land 10. The King or other Lord must have a full and clear Coo. 3. 32. 31. super L. 〈◊〉 111. 10. 8â— yearly value of the third part left to discend to him and the value is to be esteemed as it is and doth happen to be at the time of the death of the Testator for the King or other Lord must have the like and equall benefit for his third part as the Devisee hath for the two parts without diminution or substraction when therefore a man will have his Devise good for the residâ—â— he must take care that the third part be so left for if the third part be not valuable or be charged with any rent c. or be upon any incertainty as if it be upon a possibillity only as where a man and his wife be seised of a joint estate Taile made during the Coverture and he Devise other lands to her on condition that she shall wave her estate made during the Coverture and so intend that that part of his land shall be left for the Kings part this Devise will not be good for the residue and albeiâ— the wife doe wave the estate after the husbands death yet this will not help the matter or make the Devise good for that part for which it was void before But it is not materiall by what Tenure the third part discending be held For it is holden by the better opiâ—ion That if a man be seised of 20 l. land held of the King in Capite and 10 l. land held
of a Subject by Socage and he devise all the Capite land to a stranger that this is a good Devise for the whole and that the King shall be satisfied by the Socage land And if it be of the value of the third part albeit it be but of an estate Taile whereof the Ancestor was seised or it be new purchased land yet it is sufficient And therefore if some lands be given to a man and the heirs of his body of the value of 10 l. per annum and he be seised of other lands in Fee-simple to the value of 20 l. per annum and all or part of these are held in Capite by Knights Service in this case he may devise the lands in Fee-simple and leave the entailed land to discend for a third part And if a man be seised of such land and convey it to the uses within the Statute or any of them and after purchase new land and leave that to discend this is sufficient 11. The third part that is left to discend to satisfie the King or other Coo. 3. 34. Lord must discend immediately and he must not stay for it And therefore if a man be seised of three Acres of land held by Knights Service in Capite and make a Lease of one Acre for life and after devise the other two Acres this Devise is not good for the whole two Acres but for two parts in three thereof only and albeit the Tenant for life die afterwards yet this will not help the matter But if the Devisor leave a full third part immediately to discend in Fee-simple or in Fee-taile he may devise the other two parts at his pleasure And if he doe not leave a third part to the full it must be made up and supplyed out of the other two parts which in case of the King is done by Commission out of the Court of Wards and in case of a Subject by Commission out of the Chancery 12. As the Coo. super Litt. 111. 9. â—33 3. 32. 30. third part left to discend must bee of as good value as either of the other two parts is at the time of the death of the Testator or otherwise the Devise of all the residue will not be good so must it bee taken out of the lands of the Testator indifferently And therefore if a man be seised in Fee of land held in Chiefe by Knights Service and make a Feoffment of the one halfe of it to the use of himselfe for life and after to the use of one he doth intend to marry and after to the use of another in remainder or to any other such like uses within the Statute and after he doth marry the same woman and after he deviseth the other moity to his wife children or any other in this case albeit the wives estate have precedency yet the King shall have his third part out of both the moities equally So if one be seised of Gavelkind land held in Capite and his sonne being dead devise part of it to one of his grand-children and part of it to another and part to a third Taile in this case the Kings third part shall come out of all the three parts equally and accordingly the Devise will be void for so much to every one of them So if one hold three severall Mannors of three severall Lords he cannot devise two of these Mannors leaving a three to discend but he may devise two parts of every of the third Mannors and a third part of each Mannor must discend to each Lord for there must be an equallity in these things For further illustration of which things the examples following are to be heeded W B being seised of the Mannor of Thoby in Capite Coo. 3. â—ut ler Bakeâ—s câ—se and of lands in Fobbing held in Socage in Fee and he and his wife being seised of the Mannor of Hinton held in Capite to them and the heiâ—es of their two bodies begotten by an estate made to them during the Coverture for the joynture of the wise the reversion to W in Fee and Thoby doth amount to the value of two parts and Hinton and Fobbing to a third part and W B by his Will in writing doth devise Thoby to his wife for life upon condition that she shall not take her former Joynture with divers remainders over and die and shee refused her former Jointure in Hinton in this case it was adjudged that the Devise was not good for the whole Mannor of Thoby and that the Mannor of Hinton was not a sufficient third part to discend L L being seised of the Mannor of Affaland Coo. 10. 78. I â—onard Leoveis case Coo. 11. 24. Heaâ—ton Rillaton Pâ—ngelley Willesworthy and Trivesquite the last only held in Capite in Fee and having issue Thomas his eldest sonne William Humfry and Richard younger sonnes which Richard had issue Leonard makes a Feoffment of these Mannors to divers uses viz. of the Mannors of R P W and A to the use of the Feoffor for life and after to the use of such person as he should appoint by his last Will and after to the use of W his second sonne in Taile and after to his other sonnes in Taile and after to the use of the Feoffor and his wâ—fe in Taile and after to the use of the Feoffor and his heirs for for ever And of the Mannor of H to such like uses and of the Mannor of T also to such like uses and the same uses were with power of Revocation And after the Feoffor purchased eight Acres of other land held in Socage and after did revoke the uses of the Mannors of R P W and A and after devised some of the said Mannors excepting some peeces and the said eight Acres of land to his eldest sonne and the heirs males of his body for 500 yeares on certain conditions and if he die without issue that it shall goe to William c. and afterwards he dyed seised of the said eight Acres of land and the lands devised by the Will at the time of the death of the â—estator were of the yearly value of 24 l. 14 s. 10 d. per annum non ultra and the lands whereof the Feoffment was made and not revoked were at the time of the death of the Testator of the value of 55 l. 6 s. 8 d. in this caâ—e it was adjudged that the Devise of the eight Acres newly purchased was void at least for a third part and restrained by the reversion in Fee expectant upon the estate Taile made to the younger sonne of the Mannor held in Capite And it was resolved That if a man be seised of three Acres of equall yearly value one of them held of the King by Knights Service in Capite and have issue two sonnes and give the Acre so held and another of the Acres to his younger sonne whereby hee hath so executed his power by the Statute that hee
cannot devise by his Will any part of the third Acre and after he purchase three Acres of equall value held in Socage that in this case because he hath the reversion in Fee upon the estate Taile made to the younger sonne he can devise no more but two parts of the said land so newly purchased But if the reversion be gone before the purchase he may devise the whole Coo. 6. 16. super Litt. 111. but if a man be seised of lands in Fee part of which are held of the King in Capte by Knights Service and he convey two parts of it unto any of his sonnes or to the use of his wiâ—e for life or in Taile in this case albeit he may not devise any part of the residue yet he may by his Will devise the reversion of the two parts And in case where he hath not conveyed the full two parts he may devise so much as to make up that hee hath conveyed full two parts And it was further resolved in the same Leonard Loveâ—s case That whereas the Statute saith All persons c. having c. of any Mannors c. in possession reversion or remainder c. and the Feoffor L L in the case before had a remainder in Taile expectant upon the estates in Taile limited to the sonnes that this remainder was not within the Statute nor would have restrained the Devise but for the reversion in Fee afterwards A B being seised in Fee of the Mannor of Gracediu held in Capite and of the value 30 l. per annum and of the Mannor of Normanton held in Capite of the Coo. 11. 23. Henry Harpurs case value of 18 l. per annum in consideration of a marriage with M did covenant to stand seised of the Mannor of G to the use of himselfe and the heirs males of his body on the body of the said M and after to the use of W B his brother and the heires males of his body and after to the use of another brother in Taile and after to the use of his own right heires and of the Mannor of N to the use of himselfe and M he is to marry and the heires of his body and after the remainders as before of the other Mannor and after the marriage is had and A B doth purchase other lands held in Socage of the value of 3 l. per annum and then devised the same new purchased lands in this case it was adjudged that the Devise was void for a third part of the Socage land in respect of the reversion dependant upon the estate taile and yet that it was a good Devise for two parts of the new purchased land albeit he had executed his power and given more then two parts to the use of his wiâ—e And in these cases where a man hath land held in Capite and other land Coo. 10. 83. and he convey the land held in Capite to any of the Uses within the Statute as to his yoâ—â—ger children or the like or convey it with power of revocation only so that he hath power of the land still and after he purchase land held in Socage in this case it seemes hee may devise all the land newly purchased as if the land were conveyed without any such power of revocation A being seised of land in fee Coo. 6. 17. Sir Edwards case held of the King in Capite made a Feoffment of two parts of it to the use oâ— his wiâ—e for her life for her Jointure and after made a Feoffment of the third part to the use of such person and persons and of such estate and estates as he shall limit and appoint by his last Will and Testament in writing and afterwards he did by his last Will in writing devise this third part to one in Fee in this case it was resolved that the Devise was good for the whole third part And yet if a man make a Feoffment in Fee of land held in Capite to the use of his last will albeit the devise of the land be with reference to the Feoffment yet it is void for a third part E B being seised of 6 Mannors the one in Fee and the rest in Taile with the Coo. 10. 81. Tr. 34. Eliz. Bedinâ—ields case reversion expectant to him and his heires and hath issue T B divers of which Mannors are held of the King in Capite by Knights service and every of them of equall yearely value by his last Will in writing did devise all the said Mannors to divers persons and their heires for payment of his debts and advancement of his children and then died and the estate in taile that discended to his issue was more then a third part of all in this case it was resolved that the Devise was good for two parts of the reversions and for the entire Mannor in Possession and not void for a third part of the Mannor in Possession and for all the reversions in Fee A man being seised in Fee of Gavelkind land in Kent part whereof is held of Coo. Rep. Stamf. Per. 8. the King in Capite and part of Common persons in Socage hath issue A who hath issue B C and D and A deviseth some of these lands to B and some to C and some to D his Grand-children in taile in this case the Devise is void for a third part of the whole aswell for the land held in Socage as the land held in Capite And yet if in this case no Will be made the King shall have but a third part of that which doth discend to the eldest sonne the heire at the Common-law and not the third part of that which doth discend to the younger sonnes by custome And if lands devisable by custome come into the Kings hands and he grant them to hold of him in Capite and the Patentee devise them to the use of his wife children or for paiment of his debts c. in this case the Devise is void for a third part And here note that in all the cases before where a man is restrained to devise a third part of his land if he devise the whole the Devise is good notwithstanding for so much as he hath power to devise And as touching the thing devised is further to be known 13. That a man must have right to and possession of the land he deviseth or else the Devise is not good Plow 485. Devise of a right to Land or of Land that is another mans And therefore iâ— a Disseisor devise the land he hath gotten by Disseisin this Devise as to the Disseisee is void And if a man be disseised of his land so that he hath nothing but a right thereof left and then he devise this right or devise the land this Devise is void And if one contract for land aâ—d pay his money for it but Nevils case hath no assurance of the land and he devise this land to
through the posts or walls tables dormant furnaces of lead and brasse and fats in a brew and die house standing and fastned to the walls or standing in or fastned to the ground in the middle of the house though fastned to no wall a copper or lead fixed to the house the doores within and without that are hanging and serving to any part of the house shall not goe to the Executor or Administrator to be divided and sold from the house albeit the Executor or Administrator have a Lease for yeeres of the house and by that meanes hath the house also But if the glasse be from the windowes or there be wainscot loose or doores more then are used that are not hanging or the like these things shall go to the Executor or Administrator If I make a feoffment to I S of land on condition that if he Co 3. 5. 96. Fitz. Executor 8. pay me my heires or assignes or my heires executors or administrators a 100l such a day that the Feoffment shall be void and I dye before the time of paiment in this case if this money be paid at the day my Executor or Administrator and not my heire shall have it If one be seised in Fee of lands whereon there are trees growing and he make a Feoffment of the land to me excepting the trees Coo. 4. 63. 11. 48. and afterwards he doth sell me the trees for ever and after I dye in this case my Executor or Administrator shall not have these trees as they shall in case where the Feoffor doth grant them to me for yeares And if I be seised of land in Fee and I make a Lease for life or yeares of it excepting the trees and afterwards I dye in this case my Executor or Administrator shall not have these trees but they shall goe in both cases with the land If a Lease be made for life or yeares of land whereon a house is standing or timber is growing and the house is prostrate or the Coo. 4. 63. 11. 81. 84. timber is cut or fallen down by whomsoever or what means soever it be the materials of this house and this timber is now become a chattell and therefore if the Lease be without impeachment of waste it shall goe to the Lessee and after his death to his Executor or Administrator but if the Lease be otherwise it shall goe to the Lessor and after his death to his Executor or Administrator But if the timber be cut for reparations only or the Lessee will imploy the materials of the house to build it againe and the Lease do continue it may be so imployed and then the Executor or Administrator of the Lessor may not take it If one be seised in Fee-simple of ground whereon trees do grow and he sell me these trees for money and afterwards I dye before Coo. 11. 50. Perk. Sect. 58. they be cut in this case my Executor or Administrator shall have and may cut them If the Kings teâ—ant by Knights service in Capite be seised of a Mannor whereunto an Advowâ—on is appendant and the Church become Coo. super Litt. 388. void and the tenant dyeth his heire within age in this case the King and not the Executor or Administrator of the tenant shall have the Presentation And yet if in this case the land be held of a common person the executor or administrator and not the Gardian shall have it In all cases regularly where a man doth sowe land whereof and wherein he hath such an estate as may perhaps continue untill the Dyer 31â— Doct. St. 35. Perk. Sect. 59. corne be ripe if he that doth sowe it die before it be cut and severed his executor or administrator shall have it as if the husband sowe the land whereof he hath an estate in Fee-simple Fee-taile for life or for a certain number of years in the right of his wife and dye ere it be ripe in this case the Executor or Administrator of the husband and not the wife shall have it And if one that holdeth land fot the life of I S sowe the land and I S die ere it be ripe and cut the Executor or Administrator of the tenant shall have this corn And if tenant in Tail or in Dower sowe the land they do so hold and dye ere it be cut the Executor or Administrator not the issue in tail nor the heir or him in reversion shall have it So if the husband make a Feossment in Fee to the use of himself for life and after of his wife c. and he sowe the land and after die his Executor or Administrator not his wife shall have the corn But if a Feoffment be made to the use of the husband and wife together in Fee or for life and the husband sowe the land in this case the wife not the Executor or Administrator of the husband shall have the corn So if Lessee for years certain sow the land a little before the end of his term and the term end before it be cut in this case he that is to have the land not the Executor or Administrator of the Lessee for years shall have the corn If there be Tenant for life the remainder in Fee of a Tenancy Coo. 2. 93. and the Lord grant his Seigniory for life and after he in remainder in Fee of the Tenancy dye his heir within age and after the Lord die and after the Tenant for life die in this case the heir and not the Executor or Administrator of the Lord shall have the Wardship If one be seised of land in Fee and make a Lease for years rendring Hill 7. Iac. B. R. per Câ—riam Rent at Michaelmas or within 10 daies after and the Lessor happen to die during the term after Michaelmas and before the 10 daies expired in this case the heire of the Lessor and not his Executor or Administrator shall have the last half years Rent due at Michaelmas If one grant a Rent in Fee and grant withall that if the Rent F. N. B. 120. â—itz Covenant 17. Dâ—er 24. be behind the Grantor shall forfeit 205. nomine poenae to the Grantee and his heirs and the Rent is behind and the Grantee die in this case his Executor or Administrator not his heir shall have this money that is forfeit already So if one make a Feoffment in Fee of land and the Feoffee doth covenant to do divers things to the Feoffor Et quoties defectus fuerit c. that he shall forfeit to him and his heirs 5l and the Feoffee doth fail and breake his covenant divers wayes and the Feoffor dieth in this case his Executor or Administrator not his heir shall have and recover all the forfeitures that are past If a Bishop Parson Vicar Master of Hospitall or any body politique be possessed of any goods or chattels in their owne right Coo. 4. 63. Perk. Sect. 58. Coo. super Litâ— 46.
purchase for these rights and duties were given by the Law from him that was owner of the land and none other which at this time was the Feoffee of trust and so the Feoffor the old owner of the land should take the profits and leave the power to dispose of the land at his discretion to the Feoffee and yet the Feoffee was not such a Tenant of the land as his wife might have Dower or the land bee extended for his debt or that he might forfeit it for Felony or Treason or that his heire should be in Ward for it or any duty of Tenure fall to the Lord by his death or that he could make any estates of it also lands were many times conveyed by last Wills by words only and sometimes by tokens only in time of great extremity of weaknesse and many perjuries for tryall of secret uses were daily committed All which having been espied have been laboured to be cured and holpen by divers particular Acts of Parliament in all succeeding ages Stat. 1. R. 2. c. 9. 4. H. 4. c 7. 11 H. 6. c. 3. 1. R. 3. c. 1. 4. H. 7. c. 17. 1 H. 7. c. 1. 19 H. 7. c. 15. 27 H. 8 c. 10. Vses and possessions united but the makers of these Lawes finding the continuances of these uses so mischievous that they did over-reach the policy of all Lawes for a generall remedy and a perfect cure of all the said mischiefes and abuses have at last provided That where any are or shall be seised of any lands to the use or trust of any other by reason of any bargain sale feoffment fine recovery contract agreement or otherwise by any meanes whatsoever cesty que use or trust that hath any such use in Fee-simple for terme of life or yeares or otherwise or any use in reversion or remainder c. shall have the possession of the land in such quallity manner and condition as hee had the use or trust And where any one is seised of lands to the use or intent that another shall have a yearly rent out of the same lands cestry que use of the rent shall bee deemed in possession thereof of like estate as he had the use By which Statute the use and possession of land is now at this day coupled conjoyned and marryed with an indissoluble knot so as they cannot now stand apart and devided but he that hath the one must have the other and the one doth ensue the other as the shaddow doth the body and therefore now upon Fines Recoveries and Feoffments the estate doth settle as the use and intent of the parties is declared by word or writing before the act done as for example If a writing bee made between two or more that one of them shall levie a fine make a Feoffment or suffer a Recovery to the other to the use and intent that one of them or another man shall have it for life and after another in Taile and after a third in Fee-simple in this case the Law setleth the estate aâ—cording to the use and intent declared so that now what estate a man hath in the use the same he hath in the possession But herein for the more full understanding of this Statute and the Law at this day it must bee To what uses the Statute of 27 H. 8. doth extend and to what not observed That this Statute doth not extend to all manner of uses neither are all uses executed and united to the possession hereby for to every execution of a use within this Statute foure things are requisite 1. That there be a person seised 2. That there be a cesty que use in esse 3. That there be a use in esse in possession reversion or remainder 4. That the estate out of which the uses doe arise be vested in cesty que use so that when these foure viz. Seisin in the Coo. 1. 126. 136. Plow 3â—â— Feoffees cestuy que use in rerum natura use in esse and that the estate of the Feoffees doth vest in cestuy que use then there is an execution of the use within this Statute but if any of these faile there is no execution of the use within this Statute And therefore it is agreed that this Statute doth not execute any use but only uses in esse so that the right of a present and a future or contingent use are excluded untill they come in esse and then the Statute doth execute them also if no alteration be of the estate of the land before And if cestuy que use in Taile with divers uses in remainder had made a Feoffment and dyed before the Statute no execution Coo. 1. 126. Dyer 58. 88. 33â— should have been of this right of a use untill entry by the Feoffees So if cestuy que use in possession had made a Feoffment before the Statute no right of the use in possession or remainder shall be executed by the Statute untill the regresse by the Feoffees So if a Feoffment had been made before the Statute to the use of the Feoffee for life and after to the uses of others in remainder and the Feoffee had made a Feoffment in Fee to another this use shall not be recontinued or the repossession of the land executed unto it by this Statute so that the right of uses in esse and uses in contingency untill they happen to be in esse remaine at the Common-Law as they were before the Statute and therefore if the estate of the Feoffees be in such cases devested by disseisin or the King or a Corporation or an Alien or a person attaint c. be enfeoffed of the land before the use come in â—sse or if the land be aliened bonà fide upon consideration to one that hath not notice of the use this use can never be executed untill these possessions be removed by lawfull entrie or action of the Feoffees and if their entrie and action be barred the use is gone for ever and the party grieved thereby hath no remedy but in Chancery And therefore if cesty que use in Taile the remainder in Taile restrained with a clause of perpetuity be disseised no use in contingency can bee executed by this Statute And if before the Statute a feoffment had been made in Fee to the use of I S for life and after to the use of the right heires of I N and the Feoffees had been disseised and then the Statute had been made and after I N die and after his death I S die this use shall never be executed in the right heire of I N. And so also if a disseisin be after Coo. 1. 138. the Statute and before the death of I N no possession shall bee executed in the right heir of I N Also uses that need no Execution by the Statute as when a man doth convey land to I S and his heires to the use of I S and his heires this doth not
marriage And that where one doth by word without Deed grant to his sonne and to his wife in tail land in consideration of their marriage that it was agreed by all the Iudges that the use did rise upon this agreement Howsoever it is most safe in these cases to do it by Deed and in writing for Dyer 296. Plow 22 seems to oppugne this And if a man make a Feoffment levy a Fine or suffer a Recovery to the Litt. Sect. 462. 463. Coo. 6. 17. use of his last Will or to the intent to perform his last Will or to the use of such person and persons and of such estate and estates as he shall limit by his last Will and then afterwards by his last Will declare the uses these are good uses and this is a good way of raising of uses So if a man devise his land by Will to I S and his heirs to the use of I D and his heirs it seems that the use will See the Stat. 27 H. 8. of Vses Fitz. Devise 22. rise to I D and his heirs by this means And if a man by a verball agreement in consideration of money or the like sell his land to another or agree and promise that the bargainee shaâ—l have it Dyer 229. for any time howsoever that hereby no use nor estate will arise if it be a Free-hold that is sold within the Statute because it is not by Deed indented c. yet it seems a good use will arise at the Common Law and that the Bargainee shall have relief in equity for his purchase The second thing whereunto respect must Coo. 1. 122. 127. 115. Plow 2 8. Dyer 8. 263. be had is to the persons trusted or to him to whom the conveyance Conscience is made for to every good use there must be a person â—eised Secondly in respect of the persons trusted and what persâ—ns may not be seised to the use of another but to their own use to use and he must be a person capable of such a Seisin And for this it must be known that any sole person that may make an estate to himself may make an estate to other uses Alâ—o a man may be seised of his own land to other uses as in the case of a covenant to stand seised to uses But the King or any body corporate Reâ—olved in Doctor Atâ—â—s case 44. Q. Co. B. alien born or pâ—râ—on attaint cannot be seised to other uses no more by an originall Feoffment to use then when they come by the land in use at the second hand in which case as hath beene shewed neither such Persons nor disseisors abators or intrudors or Lords of villains or by Escheates shall be seised to other uses but in all these cases the uses are void and the parties shal hold the land to their own uses or to the uses of the feoffors c. not to the use of Cestuy que use And a bargainee of land for valuabâ—e consideration Dyer 155. Litt. Broo. Sect. 10. cannot be seised of the land to any other use but his own * Coo. 1. 136 The third thing to be respected is the Cestuy que us for to every good Thirdly in respect of the persons for whom the trust is or the Cestuy que use use as there must be a person seised to use so there must be a person to whose use he is seised and he must be capable also And for Broo. Mortmaiâ—e 37. this it must be observed that any man that is capable of an estate directly and immediately to himselfe is capable of the same estate by way of use but if the use be limited to a Corporation there must be a licence had otherwise it will be an alienation in Mortmaine And if future uses upon Contingences be limited to such See before persons as are not in being these uses howsoever they are good at the Common-Law yet they are not good within the Statute neither doth the Statute execute them at all untill they come in 12 H. 7. 27. â—0 Ed. 〈◊〉 possession And if a Feoffment be made to I S and his heires to the use of the Parishioners of Dale this use is voyd for they are incapable by this name and it shall be to the use of the Feoffor The fourth thing to be regarded is the estate of him that doth Fourthly in respect â—f the estâ—te and pâ—ssession of him that doth create the use raise the use in the land whereof the use is raised for howsoever the Tenant in Fee-simple of land may create what uses he will in Fee for life or yeares upon it and such uses are good and the Tenant in taile or for life may perhaps grant their land for their own lives to the use of a third person a Hill 38. Eliz. Co. B. Curia Coo. 2. 52. Pasche 13. Ia Co. B. Seignior Sarversus Smith Yet if a Tenant in taile for good considerations covenant to stand seised to the use of himself for life and after of his eldest sonne in taile no use will rise by this Covenant So if Tenant in taile of an Advowson in grosse grant it by Deed to one and his heires to the use of himself for life and after to the use of another in â—ee this grant is void by the death of the Tenant in taile b Coo. 10. 96 And if such a Tenant in tail bargain and sell his land by Deed indented and inrolled hereby the bargainee hath an estate discendible to his heirs but determinable upon the death of the Tenant in taile c â— Yelvertonâ— case 37. Q. B. R. And if one covenant by Indenture to stand seised to the use of B of White Acre which he hath not then but he doth afterwards purchase it by this no use will rise And if one that hath but a term of yeares grant it to I S to the use of himself for life c this is no good use within the Statute but a Chancery trust only The fifth thing to be respected is the estate of him that doth take Dyer 369. by the conveyance out of which the uses are derived for howsoever Fiâ—â—ly in respect of the est te and possession of him that doth â—ke by the conveyance where a man doth grant in Fee-simple to another and his Coo. 2. 78. heires he may limit what uses he will upon this estate and if a man make an estate for life to another he may limit an use Coo. super Litt. 1â— thereupon yet if a man make a gift in tail to another he can limit no use thereupon And therefore if one grant his land to I S and the heirs of his body to the use of I S and his heirs in Fee this limitatiom of use is void and I S hath hereby an estate in Taile c Trin. 14. Ia. B. R. Adiudged Couper Franklins case And if a Feoffment be made
then the 500l the interest and the 200l is cast together and so we agree upon an Annuity of 80l per annum for fourteene years which is assured by Conveyances unto me in this case the contract is usurious and all the assurances made to perfect it are void And yet regularly where the principall mony is lost Curia Hil. 14. Ja. B. R. Sanders case the contract is not usurious If a man desire to borrow of me 100l for a yeare and I am content to let him have it for the use of 8l but withall I compell him to take a lease of me of a house at 60l rent which in truth is worth but 30l this contract is usurious and therefore the assurances thereupon made void Et sic de similibus But if a man the 17th of July 1579. grant me a rent of 20l. per Co. 5. 69. annum for the loane of 100l to be paid every halfe yeare and the first payment at Christmasse 1580. and it is agreed between us that if he pay the 100l the 17th of Iuly 1580. that then the rent shall cease this contract is not usurious and therefore the assurances thereupon made are not void but good But if in this case there be a private or collaterall agreement between us that he shall not pay the 100l and redeem the rent and that clause be put in only to evade the Statute then is the contract usurious notwithstanding and the deeds and assurances thereof void Et sic de similibus If one borrow 100l after the rate of 8l per centum and Hill 7. Jac. B. R. Curia the borrower do afterwards pay part of the principall and all the use within the yeare and the lender doth receive it or the lender doth sue for his mony within the yeare these subsequent acts do not make the contract or deeds or assurances thereof void for it is a rule that if the originall contract be not usurious no matter ex post facto can make it so If one borrow of me 10l and bind himselfe Bro. Obligation 79. to pay me by a day and moreover bind himselfe that if he pay it not by the day that he shall pay me 20l. for it this contract and the deed for perfection of it are good for this is not usurious for all Obligations with conditions for payment of mony lent are of this nature And yet if one borrow 100l of me and for this mortgage land to me of a greater value then 8l per annum on condition that if he pay the mony at any time before the years end then the assurance to be void this should seem to be an usurious contract for in this case I am sure to have by the agreement more then after the rate of 8l per centum and so it is not in the last case before If one borrow 100l for a yeare and give the Broker 20l. Per. â—ust Brigman Hil. 7. Car. to procure it this will not make the contract usurious nor the assurances void but for this the Broker may be punished Also all Obligations made to a Sheriffe contrary to the Statute Obligations made to a Sherriffe contrary to the statute Collusion in â—raudulent convâ—yances 1. To deceive purchasors of 23 H. 6. ch 10. are void or at least voidable by pleading But of this see in Obligations infra A deed also made containing Stat. 27 El. ch 4. Co. super Lit. 3. stat 39 El. â—h 18. the Grant of any thing with intent and of purpose to deceive and defraud one that shall afterwards buy the same thing is void For it is to this purpose provided by a Statute Law That all fraudulent conveyances of land or any rent or proâ—it out of land made by whomsoever with intent to deceive or defeate any that shall purchase the land or any rent or profit out of it for mony or other good consideration of the fruit and effect of their purchase shal be void against such purchasors for so much as they buy and against all others that come in by or under them But all such conveyances as are made bonâ fide and upon good consideration are not to be accounted fraudulent For the better understanding of which Statute and the Law in these cases observe That conveyances bonâ fide are opposed to such as are upon and with any trust expresse or implied And good considerations are set down in the Statute to distinguish from such as are not valuable as nature bloud and the like If one convey land with a present or future power of revocation or alteration at his will that doth convey it this shall be said a fraudulent conveyance as against him that shall afterwards purchase this land So that if one convey his land to the use of himselfe for life and after to the use of divers of his bloud with a future power as after the death of H or after such a day to revoke it and before the Co. 3. 82. 83. day he sell this land to a stranger for a valuable consideration in this case the first deed shall be said to be fraudulent and void as to him that shall purchase the land to doe him any hurt And if one convey land with such a power of revocation and after with an intent to defraud a purchasor make a feoffment to a stranger to extinct the power and after sell the land for valuable considerations to a stranger in this case both the first and the second deed as to the purchasor shall be said to be fraudulent and therefore void And if there be grandfather father and son and the grandfather makes Co. 6. 72. a lease for 100. years to the father and the father to prevent the drowning of the lease by the descent of the reversion to him doth assigne over the lease to certaine friends of his to the use of his son an infant under pretence to pay debts the grandfather dieth the father doth continue the occupation of the land and maketh estates and doth all acts as owner of the land the sonne payeth no debts and the assignement albeit divers persons of quality were named assignes was delivered to one of the assignes of meane estate in private and after the father doth sell the land for valuable consideration in this case this assignment shall be taken to be fraudulent and void as to the purchasor And if the father make a fraudulent conveyance and after continue the occupation of the land and it descend to the sonne after the fathers death and he sell it for valuable consideration in this case the purchasor may avoid the conveyance made by the father as well as if it had been made by the sonne himselfe and that whether the sonne be privie to the conveyance made by his father or not And if the fraudulent conveyance bee made to the King yet it is void as to a purchasor as if it were made to a common person And
20. 41. See ch 2. Numb 6. Woman covert gifts c. of her lands or goods but another woman that hath a husbands cannot give or grant her lands or goods without her husbands consent unlesse it be in some speciall cases And albeit shee doe recite by the deed that she is sole and not covert yet this will not help And if the case be so that by agreement between her and her husband there be a certain portion of her husbands lands or goods allotted unto her to dispose of and manage at her pleasure yet she alone without her husband can make no good grant or gift of any part of these lands or goods But if she grant any thing by fine and the husband doe not avoid it during the coverture this grant will binde her after his death And if she make a gift or grant of her husbands goods it is thought this is not good untill her husband agree to it An infant cannot make any gift or grant c. that is good but in 9 H. 7. 24. 26 H. 8. 2. Perk. Sect. 12 13 14. 19. 7 H. 4. 5 See cha 2. Num. 6. speciall cases for if he maketh any grant or gift that taketh effect by the delivery of the deed onely as if he grant a rent-charge out of his land or make a feoffement with a letter of Atturney to give livery of seisin or give or sell his horse and the buyer or donee take him himselfe these are void ab initio And if the grant or gift take effect by the delivery of his own hand as if hee make a feoffment and give livery of seisin himselfe or sell a horse and deliver him with his owne hands this is voidable by the Infant himselfe or others that shall have his right c. But if an Infant grant any thing by fine this must be avoided during his minority or else it cannot be avoided at all All grants that are made by Duresse are voidable by the parties Perk. Sect. 16. themselves that make it or others that have their estates c. But Duresse if it be done by fine it is good and unavoidable All gifts grants c. made by deed in the country by those that Non sane memsrie Co. 123. 124. See cap. 2. Numb 6. are de non sane memorie are good against themselves but voidable by those that are their heires executors or have their estate But if it be by fine it is good and unavoidable A man that is borne dumbe or dumbe and deafe if he have understanding Perk. Sect. 25. may by delivery of the deed and making of signes make a good grant gift c. But a man that is borne deafe dumbe and blind cannot A Bastard may give or grant as well as any other man after he Bastord hath gotten a name by reputation Perk. Sect. 26. A Parson may grant any thing belonging to his Parsonage for Parson See Lease no longer time then for his owne life and therein likewise but during his residency albeit he have the consent of the Patron and ordinary Neither the head without the members of a Corporation nor the Corporation members without the head as Dean without the Chapter or Chapter Perk. Sect. 31 32 33. without the Deane may give or grant any of the lands belonging to their Corporation One executor or Administrator may give or sell any of the Executors goods of the deceased and this is good to bind all the rest See Execuors What Grants Ecclesiastaicall persons may make of their Ecclesiasticall lands husbands of the lands of their wives and tenants in taile of their lands intailed See in Lease The name of the persons in Grants is set downe only to distinguish Co. 6. 63. super Lit. 3. persons and to make the person intended certaine and therefore Misnaming howsoever it be best and most safe to describe the person by his true and proper name of Baptisme and also by his Sirname and if it be a Corporation by the true name whereby the Corporation is made yet mistakes in this case unlesse they be very grosse will not make void the grant Nihil facit error nominis cum de corpore constat And therefore if one that is a Bastard hath gotten a name by reputation in the place where he doth live or another man hath gotten another name by common esteeme then his owne right name or is usually called by another name then his true name in the place where he lives in these cases they may grant by this name and the grant is good And if a man be baptized by one name and after Perk. Sect. 41. Co. super Lit. 5. be confirmed by another some have said he may grant by either of these names Sed Quere And if John at Stile grant by the name Perk. Sect. 89. Co. super Lit. 3. of William at Stile this grant is good Et sic de similibus * Fitz. grant 67. Perk. Sect. 42. And these grants are good especially when there is some other addition to make it more certain as when a Duke Marquesse Earle or Bishop grant by their names of honour or dignity and grant without any name or with a false name of baptisme as when the Duke of Suffolke by the name of the Duke of Suffolke without any more words or by the name of William Duke of Suffolke when his name is John or the Bishop of Norwich grant so these are good grants because there is but one such Duke and one such Bishop within the kingdome So if a Deane and Chapter Mayor and Communalty grant by the name of their Corporation without any addition of Christian or Sirname it is good And especially then also are these Perk. Sect. 40. grants good when the true name doth appeare in some other part of the deed As when John at Stile reciteth by his deed that his name is John at Stile and by the same deed doth grant by the name of Thomas at Stile Or Alice at Stile reciting by her deed that she is a feme covert when in truth she is sole But if an ordinary man 3 H. 6 26. Perk. Sect. 38. 42. grant by his Sirname only without any name of baptisme or by his name of baptisme without any sirname at all in these and such like cases for the most part the grant will be void for incertainty unlesse there be some other matter in the deed to helpe it or some matter done ex post facto to supply it for in some cases where the thing granted doth lie in livery such a mistake or incertainty in the grant may be holpen by the livery of seisin upon the deed afterwards And so also it is in the names of Corporations for if the variance Co. 6. 65. 10. 122. 11. 19. Dier 150. Co. 10. 124. and mistake by omission or alteration be only in some