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
the grant shall be taken strictly 6. When a man doth grant all his lands or all his goods by this grant doth passe not only what he is sole seised or possessed of but also what he is joyntly seised or possessed of with another And so è converso If two men joyn together and grant all their lands or all their goods hereby doe passe not only all they have joyntly and together Co. super Lit. 301. Lit. Sect. 543 544. but all those they have sole and a part 7. Some words in deeds are large and have a generall extent and some have a proper and particular application the former sort may containe the latter as Dedi or Concessi may amount to a grant a feoffment a gift a lease a release a conâ—irmation a surrender and it is in the election of the party to whom the deed is made to use it to which of these purposes he will And hence it is that if a Lord by the words of dedi concessi grant to his tenant that doth hold of him his rent or one that hath a rent charge out of land doth grant it to the tenant of the land that in these cases the rent is extinguished albeit it be by way of grant But a release surrender confirmation c. cannot amount to a grant c. nor a surrender to a confirmation or a release c. because these be proper and peculiar manner of conveyances and are destinated to a speciall end Co. super Lit. 5. 6. Co. 4. 88. Amongst words whereby things doe passe some are collective The terms whereby things are granted expounded compound or generall comprehending many things as hereditaments lands tenements honors Isles villages and the like including lands of severall sorts and qualities And some words are simple or particular as Meadow Pasture Wood Moore and the like The word Hereditament is of as large extent as any word for Hereditament Co. super Lit. 6. 16. Perk. Sect. 114 115. 11 H. 6. 22. whatsoever may be inherited be it corporeall or incorporeall reall personall or mixt is an hereditament By the grant therefore of all hereditaments doe passe Honors Isles Castles Seigniories Manors Mesuages Lands Meadowes Pastures Woods Moores Marishes Furses Heaths Reversions Commons Rents Vicarages Advowsons in grosse and the like things which the grantor hath in feesimple at the time of the grant whether he hath it by purchase or descent And the word Tenement is of large extent also and it seemes Tenement doth comprehend as much as the former And therefore by the Bro Grant 143 Co. super Lit. 6. Perk. Sect. 114. grant of all Tenements will passe as much as by the grant of all Hereditaments The word Land strictly doth signiâ—ie nothing but errable land Land Co. super Lit. 4. Co. 4. 891. Perk. Sect. 114. but in a larger sense it doth comprehend any ground soile or earth whatsoever And therefore by the grant of all Lands doth passe errable lands meadowes pastures woods moores waters marishes furses heath and such like and the castles houses and buildings thereupon but not rents advowsons and such like things Also by grant of any land in possession the reversion thereof will Co. 11. 47. 50. 10. 107. passe And yet by the grant of a reversion of land the land in possession will not passe But here it must be observed that in cases of grants and gifts of Note Edw. case Mich. 9. Jac. curia 9 H. 7. 25. Bro. Grant 87. 11 H. 6. 22. all hereditaments tenements or lands consideration is had of the estate of the grantor for if a man be seised of some lands in fee and have other lands for life or years only and all these are lying within one parish and he grant all his lands tenements or hereditaments in this parish to another in fee simple fee taile or for life Forfeiture and give livery of seisin in the lands whereof he is seised in fee in the name of all the rest by this doth passe no more but his lands whereof he is seised in fee for otherwise it would be a forfeiture for those lands But if the livery of seisin be made in any part of the lands he hath for life or yeares then that part wherein the livery is made will passe and no more And if the conveyance be by bargain and sale and deed inrolled then the lands whereof he is seised in fee simple and for life shall passe and not the land he hath for a terme of years And yet if in this case the grant be for years then all the lands will passe for then there will be no forfeiture in the case Howbeit it is said in Bro. Done 41. pro lege That if a man give or Forfeiture grant all his lands and tenemâ—nts in B that by this leases for years doe not passe and that these words doe intend franktenements at the least These words Honor Isle and Commote are compound words Co. super Lit. 5. Honor. Isle Commote Castle and of large extent And therefore by the grant of them may passe one or more seigniories manors and divers other lands Also a Castle may containe one or more manors And therefore by the grant of a Castle may passe one or more manors And so sometimes è converso a Castle may passe by the grant of a manor But by a Castle most commonly is signified no more but the house or building Plow 169. and the parcell of ground inclosed wherein it doth stand This word Village or Towne is of large extent also And by Co. super Lit. 5. Plo. 168. Town or Village the grant of it a manor land meadow and pasture and divers such like things may passe This word Manor is a word of large extent and may comprehend Manor Co. super Lit 5. 58. Perk. Sect. 116. Co. 5. 11. Plow 168. Dyer 233. 14 H. 8. 1. 9. Iac. B. R. Dyer 30. 8 H. 7. 4. many things And therefore by the grant of a manor without the words of Cum pertinentiis doe passe demesnesse rents and services lands meadowes pastures woods commons advowsons appendant villaines regardant Courts Baron and perquisites thereof that are in truth at the time of the grant parcell of the manor a Baintons case M. 9. But nothing that in truth is not parcell of the manor albeit it bee so reputed will passe by the grant of the manor and therefore if one have a manor and after purchase the lawday or a warren to it and then he grant away the manor hereby the lawday or warren will not passe And yet if by union time out of mind they have gotten a reputation of appendancy perhaps by the grant of the manor cum pertinentiis these things may passe b Co. super Lit. 5. 26. Ass Plo. 54. 2 E. 3. 36. By the grant of a manor also divers Towns may passe An Honour
and in the last he must plead in abatement of the writ c. And if an obligation or any other deed be by any speciall act of Parliament made void the party that is bound by it cannot plead this plea of Non est factum to it but he must avoid it by speciall pleading of the matter and taking advantage of the Statute and so with conclusion of Judgement si Action c. And now we come to the Exposition of deeds CHAP. V. Exposition of Deeds IT is further to be observed that Deeds for the most part consist of these things viz. the Premisses Habendum Tenendum Reddendum or reservation Condition Warranty and Covenant And in the Premisses there is sometimes a Recitall and somtimes an Exception contained but all these are not essentiall parts of a deed for a deed may be good albeit it have not all these parts or it be not so formall and orderly drawn and made The Premisses of a deed is all the forepart of the deed before the Co. super Lit. 6. 7. Co. 11. 51. 2. 55. Plow â—96 Habendum And yet this word is sometimes taken for the thing 1. Premisses Quid. demised or granted by the deed And the office of this part of the deed is rightly to name the grantor and grantee and to comprehend the certainty of the thing granted either by expresse words or by that which by reference may be reduced to a certainty and the exception or thing to be excepted if there be any And in this part of the deed is the Recitall if there be any in the deed for the most part contained And herein also is sometimes though improperly set downe the estate The Habendum of a deed is that part of the deed which doth 2. Habendum Quid. begin with To have and to hold And this doth properly succeed Co. super Lit. 6. 7. 10. 107. the Premisses And the office hereof is to set downe againe the name of the grantee the estate that is to be made and limited or the time that the grantee shal have in the thing granted or demised and to what use And herein also is sometimes though needlesly set downe againe the thing granted But the deed that doth usually consist of all these parts may be good notwithstanding some of 3. Where a deed is good notwithstanding some seeming fault in the Premisses or Habendum them be omitted and it be not so formally made For an estate may be made by a deed without any Habendum at all As if one give or grant land to another and his heires without any more words in the deed or if one give or grant land to another and limit no estate without any Habendum in the deed and seale and deliver this deed and make Livery accordingly in both these cases the deed is good and in the first case an estate in fee simple is made and in the last case an estate for life is made And if the name of the grantee be not contained in the Premisses yet if it be in the Habendum it may be good enough As if one give or grant land Habendum to B and his heires and he is not named in the Premisses yet this is a good deed to make an estate in fee simple And yet if the thing granted be only in the Habendum and not in the Promisses of the deed the deed will not passe it And therefore if a man grant Plow 152 Dier 96. Perk. Sect. 251. blacke acre only in the Premisses of a deed Habendum blacke acre and white acre white acre will not passe by this deed But if the thing newly added be implied in the thing granted by the Premisses of the deed as being an incident thereunto or otherwise or it be the same thing and expressed in other words only in these cases the Premisses and the Habendum may stand together As if one grant a manor Habendum the manor with the Advowson appendant to the manor or if one grant a Reversion of land by the name of a reversion in the premisses Habendum the land it selfe in both these cases the deed is good and the advowson and reversion will passe So also if livery of Seisin be made of the thing newly added in this case perhaps it may passe by the Livery And if the thing granted be lefâ— out in all or in part in the Habendum yet the grant is good And thereof if one grant land to A Habendum to A his heires c. or if one grant white acre and blacke acre to A Habendum white acre to A and omit black acre yet these deeds are good and all that is contained in the premisses of the deed doth passe in both cases And if a feoffement be made to one Habendum Lit. 1. Co. super Lit. 46. Co. 6. 35. New Terms of the Law tit Assignes to him and his heires without the word Assignes this is a good feoffement and the estate thereby made is assignable as where a lease is made to one his executors and administrators without the word Assignes this is a good Lease and assignable So if one grant land to A Habendum to him for 100. years or Habendum to him and his assignes for 100. years these are as good leases as the lease that is made by these words Habendum to A his executors administrators and assignes for 100. years So if a lease of land be made to A Habendum the land to him and his heires for 100. years this is a good Habendum and the word heirs is void and it shall goe to his executors c. As also where land is granted to A Habendum to him and his Successors for 100. years this is a good lease and the word Successors void for it shall goe to executors c. And if a lease be made Habendum for years and say not how many years this is a good Habendum and a lease for two years A Recitall is the setting down or report of somthing done before 3. Recitall Quid. 4. Where it is needfull or not When a man is to take any new estate from the King of a thing Co. 1. 45. Dier 77. whereof there is any estate in being there the former estate if it be good and of record must be rehearsed and recited in the deed or else the second grant will not be good but in case of a common Person there needs no such recitall neither when a man is to derive an estate out of a former or assigne over a terme of years is it needfull there should be any recitall of the former estate in being 5. Where misrecitâ—lâ— will hurt a deed or not If one recite or rehearse an estate made foâ— terme of years and Co. 1 74. then after grant over that terme to another and mistake in the recitall this mistake may make all void As if a Fieri facias come to a Sheriffe to levy a debt
one grant tot ' ill'Maner ' de D. C if it be but one manor the words shall be taken for totum illud Manerium Fit Grant 41. Plo. 317. Co. 5. 12. 22. ass Pl. 61 Perk. Sect. 110. if two manors then it shall be taken for tota illa maneria And here note that most of all these rules run through all the cases Note of exposition he reafter following * The exposition of the severall parts of the deeds of grant And how the words and sentences therein shall be taken 1. In the premisses and what doth passe by the grant of a thing Touching things granted these rules are first to be known 1. When any thing is granted all the means to attaine it and all the fruits and effects of it are granted also and shall passe inclusive together with the thing by the grant of the thing it selfe without the words cum pertinentiis or any such like words Cuicunque aliquid conceditur conceditur etiam id sine quores ipsa non esse potuit As by the grant of Conusance of pleas is granted the Ordinary processe to bring causes to judgment By the grant of a ground is granted a way to it By the grant of Trees is granted with all power to cut them down and take them away by the grant of Mines is granted power to digge them and by the grant of fish in a mans pond is granted power to come upon the banks and fish for them Co. super Lit. 152. Lit. Sect. 572. 229. Co. 4. 86 87. 8 H. 7. 4. Bro. Grant 86. 144. 43 Ed 3. 22. Co. 10. 10. 64. super Co. Lit. 307. 2. The incident accessary appendant and regardant shall in most cases passe by the grant of the principall without the words cum pertinentiis but not è converso for the principall doth not passe by the grant of the incident c. Accessorium non ducit sed sequitur suum principale And therefore by the grant of a reversion without naming the rent the reversion after an estate taile for life or years and the rent reserved upon the estate will passe so as the tenant atturne to the grant but by the grant of the rent the reversion will not passe So by the grant of a manor the Court Baron therunto belonging wil passe by the grant of a house or ground the wayes thereunto belonging doe passe by the grant of errable land the common appendant thereunto will passe by the grant of Mills the waters flood gates and the like that are of necessary use to the Mills do passe by the grant of a house the estovers appendant thereunto will passe by the grant of a manor the advowsons appendant and villaines regardant thereunto passe by the grant of a Faire the Court of Pipowders will passe by the grant of homage or rent the fealty will passe and by the grant of Escuage homage and fealty will passe But divers things that by continuall enjoyment with other things are only appendant to others as warrens leetes waifes estraies and the like these will not passe by the grant of those other things and therefore if one have a Warren in his land and grant the land by this the warren doth not passe And yet if in these cases he grant the land cum pertinentiis or with all the profits priviledges c. thereunto belonging by this grant perhaps these things may passe And here know that a reversion may be parcell or appendant to a thing in possession and passe by the grant of it but a possession cannot be parcell or appendant â—8 H. 6. 38. Co. 11. 47. 50. Plow 103. Bro. Grant 60. 129. Co. 1. 7. 28. to a thing in reversion And therefore if one make a lease for life of a manor excepting 20. acres of it and after grant the reversion of the manor by this grant the 20. acres will not passe So if one be disseised of an acre parcell of a manor or of common appendant to the manor and before an entry or recontinuance of the acre or common he grant the manor to a stranger by this the acre of land or common will not passe But otherwise it is in case where a lease for years only is made of parcell of a manor And if a lease be made for life of 20. acres parcell of a manor and after the manor it selfe is granted by this the reversion of the 20. acres is granted and will passe also And if a man make a feoffment in fee of an acre of land parcell of a manor and after repurchase it and then grant the manor this acre will not passe by this grant for it is not united by the new purchase But it is otherwise of trees for if a man make a lease for life of a manor or other land excepting the trees and after grant the reversion of the manor or land to another hereby the trees doe passe And if a man make a feoffment in fee of a manor excepting the trees and after the feoffee buy the trees in this case the trees are united againe so that if the feoffee sell the manor the trees shall passe with it If I lease an acre of land to which an advowson is appendant for terme of life reserving the advowson and after doe grant the reversion of that acre with the appurtenances hereby the advowson doth not passe But if I grant the advowson for terme of life reserving the acre and after grant the acre with the advowson cum pertinentiis by this the advowson doth passe If land be appendant to an office there by grant of the office with the appurtenances the land will passe without livery of seisin And if an office be appendant to land there by the grant of the one the other will passe 3. That which is parcell or 14 H. 8. 25. Co. 11. 50. of the essence of a thing albeit at the time of the grant it be actually severed from it doth passe by the grant of the thing it selfe And therefore by the grant of a Mill the milstone doth passe albeit at the time of the grant it be actually severed from the Mill. So by the grant of a house the dores windows locks and keyes do passe as parcell of it albeit at the time of the grant they be actually severed from the house 4. By the grant of the land or ground 14 H. 8. 1. Co. super Lit. 4. it selfe all that is supra as houses trees and the like is granted for Cujus est solum ejus est usque ad coelum also all that is infra as Mines earth clay quarres and the like And by the grant of a 12 H. 7. 25. house the ground whereon it doth stand doth passe 5. When any matter of interest or profit is granted the grant shall be taken largely But when any matter of ease or pleasure only is granted Plow 289. 19 H. 6. 4. as a walk or the like
also may passe by this name And so also may a Castle or a hundred And one manor also that is parcell of another manor may passe by the grant of that manor whereof it is parcell The word Knights-fee is a compound word also and may Co. super Lit. 5. Plo. 168. 17 E. 3. comprehend many things And therefore by the grant of this may passe land meadow and pasture as parcell of it And sometimes by this doth passe so much land as to make a Knights fee. And some say it doth containe eight hides of land And it seems also that a manor may passe by this name if it be usually called so The word Grange is a compound word also and by the grant Grange Co. super Lit. 5. Plow 167. of a Grange will passe a house or edifice not only where corne is stored up like as in barns but necessary places for husbandry also as stables for hay and horses and stables and sties for other cattle and a curtilage and the Close wherein it standeth at the least And where land meadow and pasture c. belonging to such houses are called all together by the name of a Grange there perhaps by this word the whole may passe The word Farme or Ferme called in Latine â—irma is also a Faâ—me Co. super Li. 5. Plow 195. compound word and doth comprehend many things And therefore by the grant of a Ferme will passe a messuage and much land meadow paâ—â—ure wood c. thereunto belonging or therewith used for this word doth properly signifie a capitall or principall mesuage and a great quantity of demesnes thereunto appertaining Bro. Grants 155. Also by the grant of all Farmes or all Fermes it seems leases for years doe passe This word is a collective word also for by the grant of unam Oxgange of land Co. super Lit. 5. bovatam terre or of one or of an oxgange of Land may passe land meadow and pasture and it doth properly intend as much as an Oxe can till And Iugum terre or halfe a Plow land is as much as Halfe a Plow land two Oxen can till and by the grant of halfe a plow land may passe and meadow and pasture The words Plow land and a Hide of Land are Synomyna and A Plow land or a Hide of land are collective words also And therefore by the grant of Carucatam Co. super Lit. 5. Plo. 167. or Hidam terre or of a Plow land or of a hide of land may passe 100. acres of land meadow and pasture and the houses thereupon but it doth properly intend as much land as one plow can till in a yeare This word A yard-land is also collective and doth comprehend A yard of land Halfe a yard land many things but it is not certaine for in some Countries it Co. super Lit. 5. doth containe 20. acres and in some Countries 24. acres and in some Countries 30. acres by the grant therefore of virgatam terre or a yard land will passe that quantity of land meadow and pasture that is called by this name And so by the grant of halfe a yard or a quarter of a yard land Fold course The word Fold course is also compound for by the grant of a â—old course lands and tenements my passe Et sic de similibus And Co. super Lit. 6. finally by the grant of any such compound thing as before for the most part there doth passe thereby so much as in common reputation Plow 167. is accounted part of that thing and is usually called by that name By the grant of a Rectory or Parsonage will passe the house the Parsonage Rectorie Vicarage 8 H. 7. 1. Bro. Grant 86. glebe the tithes and offerings belonging to it And by the grant of a Vicarage will passe as much as doth belong unto it as the Vicarage house c. By the grant of a mesuage or a mesuage with the appurtenances Plow 85. 15. 171 178. 569. Lit. Bro. Sect. 31. 185. Co. super Lit. 5. Co. 10. 65. Kelw. 57. 27 H. 6. 2. Mesuage Curtilage House doth passe no more but the dwelling house barne dove-house and buildings adjoining orchard gardenâ— and curtilage i. a little garden yard field or peece of void ground lying neer and belonging to the mesuage and houses adjoyning to the dwelling house and the close upon which the dwelling house is built at the most And so much also may passe by the grant of a house So that the quantity of an acre of ground or thereabouts in Orchard Garden and out-let may passe by either of these names but more then this will not passe by the grant that is made in either of these words albeit more have been occupied with it and albeit more be intended to be passed by the grant And therefore if there be a mesuage or dwelling house and divers acres of land thereunto belonging called all together by the name of Hedges And a grant is made by these words of all that mesuage with the appurtenances commonly called by the name of Hedges by this grant nothing shall passe but the mesuage garden and curtilage a See before And yet if a manor or farme be commonly called by the name of a mesuage there by the grant of a mesuage the whole manor or ferme may passe b Lit. Bro. Sect. 185. 160. Bro. Leases 55. Plow 170. c 13 Ass Pl. 2. Co. super Lit. 4. And by the grant of a mesuage or house and all the lands thereunto appertaining will passe all the land usually occupied therewith Also by the name of a mesuage a Chappell or a Hospitall may be granted By the grant of a Cottage doth passe a little dwelling house that Cottage hath no land belonging to it By the grant of all a mans errable land there doth passe no more Errable land Meadow Pasture but that kinde of land And by the grant of all a mans meadow ground or all a mans meadows doth passe no more but that kind of ground And by the grant of all a mans pastures doth passe no more but the land or ground it selfe imployed to the feeding of beasts also such pastures and feedings as he hath in another mans soile If a man have divers acres or peeces of Wood and grant to another Wood. Trees 14 H. 8. 1. Perk. Sect. 116. Co. 5. 11. Br. Done 14. omnes boscos suos or all his woods or all his woods growing in such a place by this grant doth passe all the highwood and underwood and not only the wood growing upon the land or soile but the land or soile it selfe wherein it doth grow But in this case if the grantor have in the same place divers peeces of wood and divers closes wherein there are divers trees growing in the hedges it seems in this case these trees in the hedges shall not passe by
hath an estate taile If lands be granted to I S to have and to hold to him and the 12 N. 4. heires he shall happen to have of his wife by this he hath but an estate taile and no feesimple and his wife hath no estate at all If lands be granted to I S and the heires that the said I S shall Co. super Lit. 20. lawfully beget of his first wife and he hath no wife at the time of the grant by this he hath an estate taile If A have issue by B his wife C a sonne D a daughter and A Co. super Lit. 26. die and lands are granted to B to have and to hold to her and to the heires of A her late husband on her body begotten in this case and by this deed C hath an estate taile the woman hath only an estate for life and if C die without issue D his Sister shall have the land per formam doni But if one grant lands to A late wife of I S to have and to hold to the said A and the heires of I S on the body of the said A begotten in this case the son and heire shall take no estate by the grant And the same construction shall be upon the same words in his Will Will. If lands be granted to the husband and wife to have and to hold Co. super Lit. 26. to them and the heires of the body of the surviver of them by this the survivor shall have an estate taile after the death of the other If lands be granted to I S to have and to hold to him heredibus Co. super Lit. 20. de carne sua or heredibus de se or heredibus quos sibicontigerit in all these cases I S hath an estate taile and no more If lands be granted to husband and wife to have and to hold to Co. super Lit. 28. him and the heires of the body of the husband the remainder to the husband and wife and the heires of their two bodies begotten this remainder is void and therefore by this the husband hath an estate in taile and the wife a joint estate for life with her husband and no more If lands bee granted to I S and his heires of the body of Co. 1. 140. Jane a Noke begotten by this I S hath an estate taile and no more If lands be granted to I S heredibus de corpore procreatis by this the heires that shall be begotten afterwards shall take And Co. super Lit. 20. if lands begranted to I S heredibus de corpore procreandis by this the heires of his body before begotten shall take per formam doni as well as those that shall be begotten afterwards If one grant to I S that if he and the heires of his body bee not Co. super Lit. 146. yearely paid 40. that hee or they shall distraine in the lands of the grantor by this the grantee hath an estate in taile in the rent as if he grant to I S that if he and his heires be not paid c. that he or they shall c. he hath a feesimple in the rent For life If one give or grant land to another to have and to hold to him Lit. Sect. 283. 285. Co. 8. 85. 96. 2. 24. Finches Law 60. Co. super Lit. 9. Dyer 307. Co. 7. 23. or to him and his assignes and say not how long nor for what time and the grantor make livery of seisin according to the deed by this the grantee hath an estate for his owne life But no livery of seisin be made no estate at all but an estate at will doth passe by this deed And if he that doth grant the land be but a lessee for years of the land and he make no livery of seisin upon the grant by this his terme of years and that estate which he hath is granted But if he make livery of seisin upon the grant then an estate for the life of the grantee will passe and it is a forfeiture of the estate of the lessee for Forfeiture 17 Ass Pl. 17. years of which he in reversion may take present advantage And if one grant to another Common in his land when he doth put in his owne beasts or Estovers in his Manor when he commeth there and say no more by this it seemes the grantee hath an estate for life If one grant land to I S to have and to hold to him or his heirs Co. 5. 112. super Lit. 8. in the disjunctive this is but an estate for life and no more So if one grant lands to I S to have and to hold to him and his heire in the singular number by this I S hath only an estate for life and no feesimple If one bargaine and sell land to another for money and limit no Co. 1. 87. 130. Plow 539. time and expresse no estate by this the bargaine shall have only an estate for life But otherwise it was before the Statute of Uses for then it had been a fee simple If lands be granted to I S for life and after to the next heire Co. 1. 66. male of I S and the heires males of the body of such next heire male by this I S hath but an estate for life But if it be to the next heires males of I S it is an intaile If one grant land to I S to have and to hold to him in fee 20 H. 6. 33. simple or in fee taile without saying to him and his heirs or to him and his heires males or the like this is but an estate for life and no more So if one grant land to I S to have and to hold to him and his feed or to him and his issues generally without more Co. super Lit. 8. 20. words by this is made only an estate for life But in the construction of a Will the law is otherwise in most of these cases Will. If lands be granted to two heredibus without this word Suis 20 H. 6. 35 by this they have an estate for their lives and no longer If one grant lands to I S to have and to hold to him and his Co. 5. 112. 1. 140. heires for his owne life or for the life of I D by this I S hath an estate for life and no more If one grant lands to A and B Habendum sibi suis omitting Co. 4. 29. super Lit. 1. 8. all other words or to have and to hold to them and their assignes by this they have an estate for life only So if lands be granted to any naturall person to have and to hold to him and his Successors by this he hath only an estate for his life If one grant his lands to I S to pay his debts to have and to Co. 8. 96. hold to him generally without limiting
the heires of his body begotten on the wife he shall first mary or To have and to hold to him and his wife he shall first mary and the heirs of their bodies begotten in these cases the husbands have the whole estate and the wives nothing at all But Use otherwise it is it seemes when the estate is limited by way of use to a man and his wife that he shall afterwards mary for by this it seemes the wife shall take also If lands be granted to A a maried man and to S a maried wife 15 H. 7. 10. and to the heirs of their bodies engendred by this they have each of them an estate taile presently executed and whiles the wife of the husband and the husband of the wife live they shall hold it for their lives and if they happen to die and these to intermary and have issues their issues shall have it according to the intaile If lands be granted to A and B To have and to hold to A for Dier 126. 56. When the Habendum shall be said to be repugnant and void And when not but shall controll divide or expound the premisses life the remainder to B in fee by this A shall have the whole for his life and B the feesimple afterwards As touching this matter these differences are to be taken Co. 2. 23. 8. 56. Perk. Sect. 181. 14 H 8. 14. Co. super Lit. 183. Between things that are granted and between the estates When the things that are granted are such as lye in grant and take effect by the delivery of the deed only without any ceremony or take effect by the same ceremonie and when not but another ceremony is required to the perfection of the grant and estate And when there is an expresse estate made by the deed in the Premisses thereof and when but an implied estate only as for examples If one grant land rent common or any such like thing to one and his heires by the Premisses of the deed To have and to hold to him for life or To have and to hold to him and to his assignes without more words in this case the Habendum is repugnant and void and by this the grantee shall have an estate in feesimple if livery of seisin and atturnment as the case doth require be duly made for otherwise no estate at all but at will will passe So if a man grant a rent or any such like thing that lieth in grant to one and his heires To have and to hold to him for years this is a void Habendum and the grantee shall have the feesimple But if a man grant land to another and his heires To have and to hold to him for a certaine number of years in this case whether he make livery of seisin or not it is a good Habendum and by this the grantee shall have an estate for so many years and no more So if one grant land rent common or any such like thing to one in the Premisses of the deed without limitation of estate which in judgement of law is an implied estate for life To have and to hold to him for a certain number of years or at will this Habendum is good and shall stand with the Premisses and qualifie it and by this the grantee shall have but a lease for years or at will as the Habendum is And if one grant land by the Premisses Co. 8. 154. 21 H. 6. 7. Co. super Lit. 20. Dier 126. per curiam in Thurmans case Pasc 16 Jac. B. R. 21 H. 6. 7. of a deed to one and his heires of his body To have and to hold to him and his heires this Habendum shall stand and this shall be taken an estate taile and a feesimple expectant So vice versa If land be granted to one and his heires To have and to hold to him and his heirs of his body this shall be construed an estate taile and a feesimple expectant and so both shall stand together If lands be given to B and his heirs To have and to hold to B and his heires and if he die without heires of his body that it shall Co. super Lit. 21. revert to the donor it seemes this is a feetaile only and no feesimple expectant Voluntas donatoris in carta doni sui manifeste expressa observanda est If a lease for years be made of land and then the lessor by the premisses of the deed granteth the land to another To have and to Co. 10. 107. 108. hold the reversion of the land to him c. for life this Habendum shall stand So if by the Premisses of the deed the reversion be granted To have and to hold the land it selfe this is good and both shall stand together but nothing is granted in either case but the reversion If the next Advowson of a Church be granted to three To have Dier 304. Co. 5. 19. to hold to them and either of them jointly and severally this is joint and the Habendum is void * Co. 2. 55. And yet if one grant land to two by the Premisses of the deed To have and to hold to one of them for Super Lit. 183. Dier 106. life the remainder to the other for life this is not repugnant but shall stand together and make the estates severall and in remainder one after another So if a lease be made to two To have and to hold the one moity to the one and the other moity to the other by this they have severall estates Expressum facit semper cessare tacitum If a man have a lease for years of land and he reciting this by Dier 272. Plow 520. the Premisses of the deed doth grant all his estate in the land To have and to hold the land or the terme after his death or for part of the time only in this case the Habendum is void and the whole estate doth passe immediatly by the premisses If a tenant for life surrender a moity of his land and the lessor Dier 256. grant it all to a stranger To have and to hold the one moity for life and the other moity for 40. years after the death of the tenant for life this Habendum shall stand and enure according to the grant If a man seised of land in fee make a lease for life of it to one Curia pas 7 Jac. Co. B. and after grant the reversion of it to another To have and to hold the reversion and the tenements aforesaid cum post mortem forisfact ' c. vacare acciderit in this case the Habendum and premisses may stand together It is usuall in the Habendum of a deed to set down to what use the party to whom the deed is made shal have the thing granted But touching this and the matters that doe concern uses see Vse infra at large And see also more for the Exposition of Deeds
2. Quotuplex And this is either expresse or in deed i. when the covenant is Termes of the law tit Covenant Co. 4. 80. 5. 17. F. N. B. 145. 146. Dier 338. 257. expressed in the deed As when A by deed doth covenant with B to serve him for a year and B doth covenant with A to pay him tenne pound for this service Or it is implied or in law i. when the deed doth not expresse it but the law doth make and supply it As when one doth make a lease for years by the words demise or grant without any expresse covenant for quiet enjoying in this case the law doth intend and make such a covenant on the part of the lessor which is that the lessee shall quietly hold and enjoy the thing demised against all persons at least having title under the lessor and at least during the lessors life and as some thinke during the whole terme And hereupon an action of covenant may be brought against him in the reversion so that if the heire that is in by descent put out the termor of his father the termor may have this action against him A covenant is also either reall i. that whereby a man doth bind himself to passe a reall thing as lands or tenements as a covenant to levy a fine of land in which case the land it self is to be recovered or when it doth run in the realty so with the land that he that hath the one hath or is subject to the other and so a warranty is called a reall covenant Or it is personall i. when it doth runne in the personalty and not with the land but some person in particular shall have benefit by it or be charged with it as when a man doth covenant to doe any personall thing as build or repair a house serve him or the like And these also are some of them said to be inherent i. such as are conversant about the land as that the thing demised shall be quietly enjoyed shall be kept in reparations shall not be aliened or if it be to be sold that the lessor shall have the first refusall to pay rent not to cut downe timber trees or doe wast to fence the copices when they be new cut to make further assurance or the like And some of them are said to be collaterall i. that are conversant about some collateral thing that doth nothing at all or not so immediatly concern the thing granted as to pay a summe of money in grosse to build a house in another mans ground to make a feoffment or lease of other land to give other security to perform the covenants or to pay the rent or that the lessor shall distrain for the rent in some other land then that which is demised or the like these are collaterall covenants There is also a covenant to stand seised of land to uses which is now become a kind of conveyance of land for which read Vses at large The most frequent use of a covenant is to binde a man to doe 3. The use and operation of it Co. 1. 154. Litt. Bro. Sect. 309. 17 H. 8. 16. Plow 308. F. N. B. 145. something in futuro and therefore it is for the most part executory and if the covenantor doe not perform it the covenantee may have thereupon for his relief an action or writ of covenant against the covenantor so often as there is any breach of the covenant And this writ of covenant is therefore defined to bee a A writ or action of covenant Quid. writ lying where a man is bound by a covenant in a deed and hath broken it And in this case commonly the party damnified shall recover damages only for the breach and if hee have a Judgement in an action brought for one breach and after the covenantor doth breake the covenant again in this case hee may bring a new action and so for every breach But a covenant doth somtimes Use also make a transmutation of a property and possession of things as in case of a covenant to stand seised of land to uses for which see Vse And in case where one doth covenant that another shall Lease have a peece of land for five years this is a good lease for five years for which see Lease And in case where one doth covenant with another that if he pay him ten pound such a day he shall have all his cattle in Dale or his lease for years hee hath of the Manor of Contract Dale in this case it seems if he pay the mony at the time hee shall have the property of the goods and of the lease for years It is said therefore that in some cases upon the writ of covenant the party shall recover the land it self out of which he hath been ejected A covenant may be in the affirmative or in the negative And it Plow 330. 27 H. 8. 16. 4. What shall bee said a good covenant in deed upon which an Action of covenant may be had And what not 1. In respect of the manner of making it may be executed i. that a thing is done already or executory i. that a thing shall be done hereafter and these are all good But if it be of a thing present as if I covenant that my horse is yours this is void a F. N. B. 145 G. Co. 3. 63. Ewers case 8 Jac. And these covenants being made by a deed poll are as good and effectuall as when they are made by a deed indented so as the party have the deed to shew for otherwise a common person cannot have an action of covenant for it doth not lie upon a verball agreement neither can it be grounded without a writing except it be by a speciall custome as in London b Litt. Bro. Sect. 450. Co. 2. Lord Cromwels case Dier 57. 150. 21 H. 7. 37. 40 E. 3. 5. And there needs not in this case formall and orderly words as Covenant Promise and the like to make a covenant on which to ground an action of covenant for a covenant may be had by any other words upon any part of an agreement in writing in what words soever it be set down for any thing to be or not to be done the party to or with whom the promise or agreement is made may have this action upon the breach of the agreement And therefore if these words be inserted in a deed amongst other covenants That the lessee shall repair provided always that the lessor shall allow timber Or that the lessor shall skowre ditches provided always that the lessor doe cary away the earth these are good covenants on both sides c Adjudge pasch 14 Jac. B. R. Sir Thomas Bret versus Cumberlands case And if a lease be made of houses by Patent to I S for twenty one years and therein is inserted this clause And that the said I S and his assignes shall repaire the houses when
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
wooll of his sheep for seven years Perk Sect. 90. Wooll this is a good grant If one being a Parson give to another all the wooll he shall have Fitz. Grant 40. for tithe the next year this is a good grant If one grant to another his horse or his cow in the disjunctive Bro. Done 19. Incertainty this is a good grant not withstanding this incertainty and the donee shall have election and by that make the grant good Any estate that a man hath in fee simple fee taile for life or years 2. Inrespect of the estate property possession of the grantor in any lands c. or any rent or profit apprender out of the same is grantable from man to man in infinitum And he that hath any such estate of any lands may charge it with any rent or profit to be taken out of it as long as the estate of the land doth last But an estate at will is not grantable over And if an estate be made to a man and his heires without the word Assignes yet he may assigne it at his pleasure for Assignes is included within Heires An Interesse termini i. a lease for years to commence in futuro is 22 E. 4. 37. Perk. Sect. 91. grantable before the terme doth begin whether it be a lease of the land it selfe or any rent or other profit out of it The interest or estate that a man hath by extent is assignable Co. 4. 64. from man to man at pleasure The reversion upon an estate taile is grantable And yet the tenant Co. 6. S. Geo. Cursons case Co. 1. Altonwoods case in taile in possession by the suffering of a common recovery may barre him in reversion of any fruit of it If an estate be made of land upon condition as if A make a feoffment Co. 1. 147. 10. 48 49. Lit. chap. Confirmation to B on condition that if A pay twenty pound he shall have the land againe in this case A and B together may at any time before the performance of the condition joine together and grant this land or charge it with any rent c. and this will be good for it is a maxime in law Fee simple land may be charged one way or other And in this case B may grant over his estate alone but it will be subject to the condition And if B grant a rent out of the land to a stranger and after the condition is performed and the feoffor enter in this case he shall avoid the rent But in this case A cannot grant Co. 1. 147. for he hath nothing but a possibility If one enfeoffe divers to the use of his sonne and heire upon condition and before the time of performance of the condition the father and sonne joine to grant or charge the land this is a good grant or charge If the tenant in taile and he that is next in remainder in fee joine Co. super Lit. 45. Co. 10. 48 49 in the grant of a rent charge in fee and after the tenant in taile doth die without issue in this case this is a good grant and charge against him in remainder And if A doth bargaine and sell land to B by indenture and before inrolment they doe joine to grant a rent charge to C by deed in this case this is a good charge and grant whether there be any inrolment or not And so if donor and donee in taile grant a rent charge out of the land then the donee die without issue in this case the grant is good to bind the donor If land be granted to two men and to the heires of their two bodies Co. super Lit. 182. begotten in this case albeit they have severall inheritances after their death yet neither of them can grant away his estate after his life for they are divided only in supposition of law One coparcener of a seigniory may grant his part to a stranger Perk. Sect. 73. Perk. Sect. 103. If two Jointenants be of a plow land and one of them doth grant to a stranger common of pasture for beasts without number to be taken in the same land this is void If two Jointenants be of a reversion one of them grant the whol Iointenants Perk. Sect. 80. Perk. Sect. 65. Dier 12. 33. this is void for a moity If a man grant or charge that which is none of his and that wherein he hath no property it being in the grantee or a stranger the grant is void And therefore if a man grant a rent charge out of the Manor of Dale or grant a reversion of land and in truth the grantor hath nothing in the Manor of Dale or in the land in this case the grant is void And albeit the granter doe afterward purchase the Manor or the land yet this will not make the grant good But if the grant be by fine or by indenture there in some cases it shall be good by way of estoppell And in this case Estoppell albeit the party recite that it is his owne yet this will not mend the cases And therefore if a man recite that he hath a rent of tenne pound a yeare and then grant five pound a year parcell of it in this case if he have no such rent the grant is void A Shepherd Bailif or Parker cannot give or grant away the Servant Bro. Done 56. 4. goods of his master without authority And yet it seemes the servant of a Taverner or Mercer may give or grant his masters Wine or Wares And if a wife give or grant the goods of her husband Husband and Wife this is a good gift or grant untill the husband disagree to it and by his agreement it is made good for ever If a man have a lease for yeares of land and make a lease for life Plow 524. 525. of it or charge it for longer time then the lease for yeares doth last in this the grant is good for so long as the lease for yeares doth last and no longer But if he make a lease for life and give livery of seisin he doth forfeit his estate Regularly a man cannot grant or charge that which is not in Co. super Lit. 214. Perk. Sect. 65. 86. his owne possession albe it he have a right to it And therefore if a man be disseised of his land and before he hath entred into or recovered the land he doth grant or give the land or his right to the land to a stranger or grant a rent charge out of the land to a stranger in these cases the grants are not good And yet such grants by fine may be good by way of estopell And by a release also the right may be extinct But if one that hath a reversion upon an stoppell estate for life and he grant a rent issuing out of this land in this Perk. Sect. 92. 98.
lands tenements or hereditaments manurable Co. 5. 3. or corporall which are necessary to be letten and whereout a rent by law may be issuing and reserved And therefore if a tenant in tail make a lease of such a thing as doth lie in grant as an Advowson Fair Market Franchise or the like out of which a rent cannot bee reserved especially if it be a lease for life this lease is Tallentines case Pasch 3 Jac. B. R. Co. 11. 60. void and that albeit the thing have been anciently and accustomably letten And a grant of a rent-charge therefore out of such lands is void * Trin. 2 Ja. B. R. Adjudg Doddingtons case And if tenant in tail make a lease for three lives of a portion of tithes rendring rent this lease is unquestionably void And so also it seems it is if it be a lease for twenty one years 7. They must be of such lands or tenements which have been most commonly letten to farm or occupied by the Farmors therof by the Co. 6. 37. Dier 271. space of twenty years next before the lease made so as if it have been letten for eleven years at one or severall times within twenty years before the new lease made it is sufficient And albeit the letting have been by copy of Court roll only yet such a letting in fee. for life or years is a sufficient letting and so also is a letting at will by the Common Law But these lettings to farm must be made by such as are seised of an estate of inheritance for if it have been only by Guardian in Chivalry tenant by the curtesie in dower or the like this will not serve to be a letting within the intent of the statute 8. There must be reserved upon such leases yearely during the Co. 5. 8. 6. 6. 37. same leases due and payable to the lessor and his heirs to whom the reversion shall appertain so much yearly farm or rent or more as hath beene most accustomably yeelded or paid for the lands c. within twenty years next before such lease made And therefore if the rent be reserved but for part of the time of the new lease this lease is void And if the tenant in taile have twenty acres of land that have been accustomably letten and hee make a lease of these twenty acres and of one acre more which hath not been accustomably letten reserving the usuall yearly rent and so much more as to exceed the value of the other acre this is not a good lease by the Statute So if the tenant in tail of two farms the one at twenty pound rent the other at ten pound rent and he make a lease of both these farms together at thirty pound rent this is not a good lease within the Statute But if besides the Co. 6. 37 38. Trin. 3 Jac. B. R. Adjudg annuall rent there have beene formerly reserved things not annuall as hariots fines or other profit upon the death of the Farmors or profit out of anothers soil as pasturage for a colt c. Adjudg Tr. 18 Jac. B. R. if upon the new lease the yearly rent be reserved albeit these collaterall reservations be omitted yet these leases are good And so Co. 5. 6. also if there be more rent reserved upon the new lease then the rent that hath been anciently paid the lease is good notwithstanding And yet if tenant in tail of land let a part of it that hath been accustomably letten and reserve the rent pro rata or more then after the rate this is not a good lease And yet if two coparcenours Co. 5. 5. And yet Co. super Lit. 44. b. is contra have twenty acres of land of equall value between them in tail and these have been usually letten and they make partition of these land so as each of them hath ten acres in this case they may make leases of their severall parts reserving the half of the accustomable rent And if upon the old lease the rent were payable at foure Trin. 3. Jac. B. R. Coâ—â—wals case Co. 5. 5. days in the year and by the new lease it is reserved to be paid at one day this is not a good lease But if the rent upon the old lease be payable in gold and the new rent be payable in silver it seems the lease is not good And if a tenant in tail be of a Manor Co. 5. 6. that hath been usually demised for ten pound rent and after a tenancy escheat and then he doth make a lease of the Manor rendring ten pound rent by the year in this case this is a good lease but if the lessor purchase a tenancy then it seems otherwise 9. Such leases must not be without impeachment of wast And therefore if tenant in tail make a lease of his land intailed without impeachment of wast this lease is void And if a lease be Wast Co. 6. 37. Meers case Adjudge made for life the remainder for life c. this is not a good lease for in this case during the remainders the tenant for life cannot be punished for wast done But if such a tenant of land make a lease of it to I S for the lives of three others this is a good lease albeit it may afterwards become an occupancy 10. Such leases must not be against any speciall Act of Parliament Stat. 11 H. 7. 20. Co. 3. 51. And therefore if a woman that is tenant in tail of the gift of her deceased husband or any of his Auncestors whiles she is sole or after with another husband make any such lease warranted by this Statute yet this lease is not good 11. They must have all due ceremonies and circumstances for the perfection of them as other such like leases have as livery of seism and the like where they are needfull And then only when Co. 7. 7. 8. 34. Dier 7. 8. The twomans Lawyer â—73 Plow 435. leases have these conditions and are made according to these provisions are they said to be within this statute of 32 H. 8. and such only as doe binde the tenant in tail himself and the issâ—e in tail for otherwise if it be not warranted by this statute albeit it will bind the tenant in tail himselfe that made it yet it will not binde his issue but as to him it will be void or voidable at the leastâ— for if tenant in tail of land make a lease of it for an hundred yeares without any rent reserved thereupon this lease as to the issue in tail is void but if he make a lease of his land for an hundred years Plow 436 rendring rent and have issue and die in this case the lease is onely Acceptance voidable by the issue at his pleasure and therefore if the issue accept the rent after the death of the tenant in tail by this means the lease is affirmed and become good But
matter whereof it is made or the nature of the thing exchanged And of what things and estates an exchange may be made exchanged be such as whereof an exchange may be made And for this it must be known that an exchange may be made of things of the same nature as of a temporall thing for a temporall thing a spirituall thing for a spirituall as a house for a house land for land a Manor for a Manor a Church for a Church rent for rent common for common a horse for a horse one peece of plate for another or the like or it may be made of things of a divers nature as of a temporall thing for a spirituall as of a house for land or rent a chamber in a house for common or for a reversion seigniory or advowson of land or rent for a right of land or release of right of an advowson for land of a rent for a way of a horse for a peece of plate of a gowne for a horse or the like And exchanges made of these things albeit the things exchanged doe lie in divers counties are good Also a seigniory by homage and fealty or the like which is not valuable Perk. Sect. 259 260. 258. may be exchanged for land rent or any other such like thing So may a seigniory by divine service But a seigniory in frankalmoigne cannot be exchanged with any but the tenant of the land that doth hold by the tenure And houses manors lands rents commons seigniories reversions and the like may be exchanged in fee simple fee tail for life or years So that an exchange may be of an Inheritance for an Inheritance of a franktenement for a franktenemant and of chattells reall for chattells reall If one grant white acre in exchange for black acre lying within Perk. Sect. 244. Idem 263 3 E. 4. 10. 9 E. 4. 21. 9 E. 4. 21. Perk. Sect. 262. the same or in two counties this is a good exchange So if I grant a rent charge issuing out of my land in exchange to I S for an acre of his land c. this is a good exchange So if I have a rent issuing out of the land of I S and I grant this to I K in exchange for land or other rent this exchange is good when the tenant hath atturned to the grant of the rent So if one have a rent out of my land in fee I have the land in fee I grant the land in exchange for the rent it seems this is a good exchange But if one grant me a Manor or land I in exchange for the same Manor or land grant unto him a rent de novo issuing out the same land or Mannor this cannot take effect as an Exchange So if one release his Estovers that hee hath in Perk. Sect. 266. Fitz. Eschange 16. such a Wood and deliver the Release in Exchange for land given to him in exchange for the same release this is a good exchange d Perk. Sect. 271. If there be a disseisor and disseisee and the disseisee release his right to the disseisor in exchange for other land this is a good exchange e Idem 282. So if the disseisor of an acre of land enfeoffe a stranger of the same acre of land and the feoffee give to the disseisee an acre of land in fee in exchange for a release of all his right in the acre of land of which he was disseised this is a good exchange f Idem Sect. 271. But if the disseisee grant his right to a stranger that hath nothing in the land in exchange for an acre of land this exchange is not good neither shall the stranger take any thing by this grant g Perk. Sect. 260. If there be Lord and tenant by fealty and 12 d. rent and the Lord exchange the seigniory with the tenant for the tenancy or è converso by deed indented this is held by some to be a good exchange h Perk. Sect. 267. If I have a rent issuing out of the land of I S I grant or release the same rent to I S in exchange for other land this is a good exchange So if I release the same rent unto him in exchange for a way over his ground this is a good exchange Perk. Sect. 268 269. If I be seised of lands to which I S hath a right of action and I give to him other land for a release of his right this is a good exchange And the same law is of an exchange of land and an advowson by deed indented for a release of right in another advowson to an usurper when his Incumbent hath been in possession of the Church six moneths k Perk. Sect. 257. If two Parsons of a Church make an exchange of their benefices by words of exchange and each of them resigne his benefice into the hands of the Bishop to the same intent and the Patrons present accordingly and the Presentations are per viam permutationis this is a good exchange l Perk. Sect. 264 265. If three acres of land with an advowson appendant be given in exchange by T K to I S for a chamber to be assigned by the said I S at the election of T K and he assigne two chambers and T K choose and enter upon one and I S enter upon the land this exchange is good notwithstanding the incertainty So if I S give his Manor of A to T K in exchange for his Manor of B or for his Manor of C he enter upon one of these Manors and T K enter upon the Manor of A this exchange is good Out of all which these things by the way may be observed 1. That the things exchanged need not to be in esse at the time of Co. super Lit. 50. Perk. Sect. 265. exchange made for a man may grant a rent de novo out of his land in exchange for a Manor And yet if I grant to another the Manor of A for the Manor of B which he is to have after his fathers death by descent it seems this exchange is void 2. There needs no transmutation of possession for a release of rent estovers or right of land for land is good 3. The things exchanged need not to be of one nature so as they concerne lands or tenements for land may be exchanged for rent common or any other inheritance which doth concerne lands or tenements or spirituall for temporall things as tithes a tenure by divine service for land or a temporall seigniory But annuities and such like things which charge the person only and doe not concerne lands or tenements or goods and chattels cannot be exchanged for land The third thing required in a good exchange is that it be made Perk. Sect. 244. Co. super Lit. 51 52. Lit. Sect. 62. Co. 9. 14. Perk Sect. 247 248 249 250. 246. in that manner and order that law doth
the exchange hereby the exchange is made good And in all these cases when the exchange is once by agreement made good it can never by any subsequent disagreement be afterwards made void And now from hence we come to a Surrender a speciall way or means for the giving or transferring of something to another that hath already some interest into the same thing CHAP. XVII Of a Surrender A Surrender properly taken is the yeelding or delivering up of Co. super Lit. 337. 1. Surrender Quid. lands or tenements and the estate a man hath therein unto another that hath a higher and greater estate in the same lands or tenements But it is sometimes improperly applied to other things He that doth surrender is called the surrendror and he to whom it Surrendror Surrendree is made is called the surrendree And there be three kinds of surrender viz. A surrender properly 2. Quotuplex Co. super Lit. 337 338 Co. 6. 69. Plow 106 107. West Symb. 1. part lib. 2. chap. 460. taken at the Common law 2. A surrender by custome of lands holden by custome or of customary estates whereof we speak not here 3. A surrender improperly taken as of a deed or grant of a rent-charge of a patent and of lands in fee simple to the King The surrender properly taken is of two sorts 1. Expresse or in deed which is when it is done by apt words and the expresse agreement of the parties 2. In law or implied which is when it is wrought by consequent and operation of law or when the law doth interpret or enure something done to another intent to make a surrender of it And in the first case it is sometimes by word only and sometimes by writing And when it is by writing it is said to be an instrument testifying by apt words that the particular tenant of the lands or tenements for life or years doth consent and agree that he which hath the next and immediate remainder or reversion thereof shall also have the particular estate of the same in possession and that he yeeldeth the same unto him The fruit and effect of a surrender is that it doth passe the estate Co. super Lit. 338. Co. 1. 96. Bro. surrender 47. Perk Sect. 591. 3. The effect of i◠of the surrendror to the surrendree and that hereupon the estate of the surrendror is drowned and extinct in the estate of the surrendree And yet not so but that to some purposes it shall bee said to have continuance still And therefore if tenant for life grant a rent-charge and after doth surrender his land in this case the rent-charge shall continue notwithstanding the surrender So if lessee for life make a lease for years rendring rent and the lessee for life surrender his estate in this case albeit the primitive estate Extinguishment for life be yeelded up yet the derivative estate for years shall continue notwithstanding but the surrendree shall not have the rent reserved upon the lease for years So if lessee for life or years break a covenant with his lessor and after surrender his estate to him his Covenant breach of covenant is not hereby salved for the lessor may have an action of covenant still notwithstanding the surrender And if one seised of land grant a rent out of it in fee and this rent is extended Co. 8. 145. 2. 39. Bro. Sur. 42. on a statute or granted for lesse time to another and then the grantee doth surrender the deed of the grant of the rent to the tenant of the land in this case the rent shall continue as to him that hath execution and the grantee And if one make a lease for years rendring rent and the lessee surrender his estate to the lessor hereby the rent is extinct but if the lessor grant the rent to a stranger before the surrender contrà And if one lease for years and the lessee let parcel of his term to his lessor rendring rent and after the lessee surrender his whole estate in this case it seems the rent is determined If lessee for life or years take a new lease of him in reversion of 14 H. 8. 15. Plow 194. Dier 28. Co. 10. 67. the same thing in particular contained in the former lease for life 4. What shall be said a surrender in law of lands And by what means an estate shall be surrendred in law Or not By acceptance and taking of a new estate or years this is a surrender in law of the first lease As if lessee for his own or anothers life in possession or reversion take a new lease for years Or a lessee for forty years take a new lease for fifty years the first lease in both these cases is surrendred And this rule holdeth albeit the second lease be for a lesse time thē the first as if lessee Perk. Sect. 617. Co. 5. 11. for life accept a lease for years or lessee for twenty years accept a lease for two years And albeit the second lease be voidable as being Fitz. Surrender 3. Co. super Lit. 218. 37 H. 6. 17. made upon condition as if lessee for twenty years take a new lease for twenty years upon condition that if such a thing happen the second lease shall be void and the thing doe after happen in this case both these leases are become void As where the lessor doth grant the reversion to the lessee upon condition and after the condition is broken Or if the second lease be made by tenant in tail Dier 140 141. or the like as if a man make a lease for years of land and then make a feoffment to another of the land and then take back an estate to him and his wife of the land and then make a new lease to the lessee for ten years this is a surrender in law of the first lease But if the second lease be meerly void then it is otherwise And therefore if the lessor doe by words of covenant only promise to Dier 272. his lessee that he shall have a new lease and doe never actually make him this is no surrender in law a Dier 178. 177. Co 5. 54. 55. Kelw. 70. And this rule as it seems holdeth also albeit the second lease be to the lessee and a stranger or to the lessee and his wife and albeit the second lease be by Dier 140. 141. 1. word only and the first lease be by deed if so be that the thing granted by the lease be such a thing as may passe by word without writing and albeit the second lease be in another right as if the Dier 178. husband have a lease for yeares in the right of his wife and then take a new lease to himself in his own name and albeit the first Pasc 40 El. Co. super Lit. 338. Co. 6. 69. 10. 53. 67. 5. 11. Dier 280. lease be to begin presently and
Perk. sect 619. to him in the reversion and two others that hereby they have a joint estate and the survivor shall have the whole If lessee for Co. super Lit. 335. life make a lease for his own life to the lessor the remainder to the lessor and a stranger in fee this shall enure as a surrender of the one moity and a forfeiture of the other moity If tenant for life Forfeiture Perk. sect 622. Bro. Sur. 20. 34. 23. surrender to the husband of a woman tenant in tail or in fee this shall enure as a grant not as a surrender And so also it seems is the law when the surrender is to the husband and wife And if B Bro. sur 46. be tenant for life the remainder to C in tail the remainder to D in tail and B infeoff C and S his wife in fee this shall not enure as a surrender but it is a forfeiture so that if C die without issue D may enter If there be lessee for life the reversion to two coparcenours Perk. Sect. 623. 21. H. 7. 40. and one of them take a husband and the lessee doth grant his estate to her and her husband this shall not enure as a surrender but as a grant And yet if tenant for life doe grant his Bro. sur 34. estate to the husband and wife she having the reversion if she be an infant and within age at this time it seems this shall enure as a surrender not as a grant If tenant for life or years and he in Plow 140. Dier 358. 3. When it is done with him in reversion or remainder reversion or remainder by word without deed join in a feoffment it shall be said the surrender of the estate for life or years to him in the reversion and the feoffment of him in reversion But if he in reversion infeoff the tenant for life without any deed this shall enure first as a surrender of the lease for life and then as a feoffment See more in Deed Numb If I have a rent in fee for life or years issuing out of another mans 14 H. 7. 2. Perk. Sect. 591. 585. 606. 590. 596. 598. 8. Where a deed or rent may be surrendred And how such a surrender shall enure or be taken Manor or other lands I may surrender it for if I deliver the deed of the grant of the rent to be cancelled unto any one that hath any estate of the Manor or land in fee simple for life or yeares in possession or remainder either solely by himself or jointly with others this is a good surrender and hereby the rent is extinct and gone But one that is tenant in tail of a rent cannot surrender it neither wil the delivering up of the deed in this case determine the rent And if one be seised of land out of which a rent is issuing in fee and Perk. Sect. 594. is disseised and during the disseisin the grantee of the rent surrender his rent and give up his deed it seems this doth not extinguish the rent yet hath the grantee no remedy for his rent when he hath delivered up his deed And yet if one be seised of land in fee out of Perk. Sect. 595. which a rent is issuing in fee and he die without heir so that the land escheat and before the Lord enter upon his escheat he that hath the rent doth surrender the deed of the rent to the Lord it seems this is a good surrender to extinguish the rent And if the Perk. Sect. 597. grantee of a rent-charge in fee grant the same to him in fee that is seised of the land in fee this shall enure to extinguish the rent but if he grant it to one that hath only an estate for life contrà And now by this time it is high time we come to Confirmations and Releases which serve to enlarge and amend the estate and interest that a man hath in a thing already CHAP. XVIII Of a Confirmation A Confirmation is the conveyance of an estate or right that one 1. Confirmation Quid. Terms of the law Co. super Lit. 295. hath into lands or tenements to another that hath the possession thereof or some estate therein whereby avoidable estate is made sure and unavoidable or whereby a particular estate is increased and enlarged And this albeit it may be made by other words as by Dedi or Concessi which are generall words and serve to make a grant feoffment lease release c. yet it is most commonly and properly made by these words Confirmasse Ratificasse approbasse which doe signifie ratum firmum facere supplere omnem defectum And he that makes the confirmation is sometimes Confirmor Confirmee 2. Quotuplex called the confirmor and he to whom it is made the confirmee There are two kinds of confirmations viz. a confirmation implied Co. super Lit. 295. Plow 140. Lit. Sect. 515. Co. 9. 142. or in law which is when the law by construction makes a confirmation of a deed made to another purpose and a confirmation expresse or in deed which is when the act done or deed made is intended for a confirmation And both these are always in writing The latter is properly called a deed or instrument of confirmation and is made after this manner Noveritis universi c. me A de B ratificasse approbasse confirmasse C de D statum possessionem quos habeo de in uno Mesuagio c. cum pertinen in F c. A confirmation is also distinguished by his effects for sometimes it doth tend and serve to confirm and make good a wrongfull and defeasible estate or to make a conditionall estate absolute And then it is said to be confirmatio perficiens And sometimes it doth tend and serve to increase and enlarge a rightfull estate and so to passe an interest And then it is called confirmatio crescens And sometimes it doth tend and serve to diminish and abridge the services whereby the tenant doth hold And then it is called confirmatio diminuens The nature and work of this where it doth find a foundation to 3. The nature and operation of it in generall Co. 146 147 Dier 109. 7 H. 6. 7. Lit. Sect. 539. Co. 9. 142. work upon is either to increase and enlarge the estate of him to whom it is made from a lesser to a greater and to give him some new interest he had not before or to corroborate and perfect the estate that was imperfect before or to change the quality of it from an estate upon condition to an absolute estate or otherwise for this a confirmation will doe In some cases also it will extinguish rights and titles of entry But it will not make an estate good that is meerly void nor add nor take from an estate a descendible quality and make a man capable of it that is
former Also upon a Statute Merchant one may have an Action of debt but otherwise upon a Statute Staple and the Capias upon the Statute Merchant may be returnable in the Kings Bench or Common-Place but the writ of Execution upon the other is to bee returned in the Chancery The proceeding upon the other sort of Recognisances are after another manner for upon Recognisances at the common Law if Dyer 36â— 315. Kelw. 100. West 2 chap. 18. Broo. execution 129. Coo. 3. 11. 15. H. 7. 16. Kitch 117. the money be not paid at the day the Conusee his Executor or Administrator is to bring a Scire facias against the Conusor or if hee be dead against his heires when they be of full age or if the lands the Conusor had at the time of entring into the Recognisance be sold against the purchasers of these lands which the Conusor had at any time after the Recognisance entred into to warne them to come into that Court whence the Scire facias cometh and to shew cause why execution should not bee done upon the said Recognisance and if the party or parties cannot be found to be warned or being warned do not appear at the time or appearing shew no cause why the debt should not be levied then the Conusee shall Elegit have execution of a Moity of his lands by Elegit or if the Conusor be living of all his goods by Levari or Fieri facias at his election Levari facias but he cannot have execution of his body unlesse he bring an Action of debt upon the Recognisance or it be by course of the Fieri facias Court as it is in the Kings-Bench upon a Baile in which case a Capias doth lie Capias The proceeding against the Sureties in Statutes shall be as the Sureties Stat de Mercatoribus proceeding against the Principall but in case where there are moveables of the Principall to satisfie the debt the Suretie as it seems shall not be charged When a man doth enter into a Statute or Recognisance the land 5. What things are subject and liable to execution upon a Statute or Recognisance And when and how And what not Plow 72. Coo. 10. â—0 51. Bro. St. Marchant of the Conusor is not the debtor but the body and the land is lyable only in respect that it was in the hands of the Conusor at the time of acknowledging of the Statute or after and the land is not charged with the debt but chargeably only at the election of the Conusee but the person is charged and the land is chargable in respect of the person and not the person in respect of the land And therefore albeit the Conusor alien his land to another yet he remaines debtor still and his body and his goods shall be taken in execution and yet when execution is sued upon the land the land is charged and become debtor also First in respect of the nature and quality of the things themselves The body of the Conusor himself but not the body of his heire 〈◊〉 de Meâ—catoribus Coo. 3. 12. Plow 72. Coo. 2. 59 Littl. Sect. 358. Dyer 205. Broo. Stat. Marchant 44. Dyer 7. Co. super Littl. 374. executor or administrator is lyable to execution and may be taken albeit there be lands goods and chattels to satisfie the debt and all the demesne and copyhold lands tenements and hereditaments corporeall and incorporeall of the Conusor that are grantable over as his Mannors Mesuages Lands Meadowes Pastures Woods Rents Commons Tithes Advowsons and the like also all his goods and chattels as leases for yeares wardships emblements cattell houshold-stuffe and the like are liable to execution upon a Statue * Dyer 373 And therefore if a man make a lease for life or yeares and after enter into a Statute or Recognisance this reversion cum acciderit shall be subject to execution and the Conâ—sor cannot as it seemes by any sale thereof prevent it And yet the contrary hath been held for law Litt. Broâ— Sect. 227 * Doct. Sr. 53. Bâ—o St. Marcha 41. Dyer 205. And if one make a feoffment in see or lease for life reserving a rent this rent is extendable and the Conusee may distraine for it So if the lessee for life make a lease for yeares rendring a rent and then the lessee for life enter into a Statute this rent is subject to execution 1 Harâ—ingtons case pasche â— lac B. R. and it seemes the Conusee may bring an Action of debt against the lessee for yeares for it a Coo. 7. 3â— And albeit the rent become extinct by the purchase of the Conusor or otherwise yet as to the Conusee it shall be said to be in esse and subject to execution still And therefore if a rent be granted unto me for my life after the death of my wise and after I do acknowledge a Statute and then my wise die and then I release the rent to the terre-tenant this rent shall be lyable to execution But Annuities Offices in Dyer 7. Co. super Littl. 374. Doct. St. 53. Coo. 2. 59. 1. 62. trust Seigniories in Franckalmoigne Homage Fealty Rights Things in action and such like things are not liable to execution upon Statutes or Recognisances Also a remainder in taile or in see after an estate taile in possession is not liable to execution in these cases except it happen to come into the possession of the Conusor The lands tenements and hereditaments that are Copihold albeit Stat. de Mercatoribus Dyer 299. Plow 82. Coo. 7. 39. 3 12. Broo. Recognisance 7. Co. 1. 62. 13 H. 7. 22. Broo Stat. Marâ—c the Conusor have the fee simple of them yet are subject to Second in respect of the estate property and possession of the conusor in the things execution only for the life of the Conusor but his demesne lands wherein he hath an estate in fee-simple are liable to execution for ever if need require The lands the Conusor hath in jointenancy with another are subject to execution during the life of the Conusor and no longer for after his death the surviving jointenant shall have all but if the Conusor survive his companion then all the land shall bee subject to execution and the lands the Conusor hath as tenant in taile are liable to execution only during the life of him being the tenant in taile for afterwards they shall go to his issue in taile And yet if the tenant in taile after he hath entred into a Statute suffer a recovery of the land intailed in this case the land shall be subject to execution as if it were fee-simple land And the lands the Conusor hath in the right of his wife shall be charged and subject to execution only during the lives of the husband and wife together and no longer If a feoffment be made in condition to make an estate to another
chargable for so much as is committed to him as the testator or intestate himselfe for this cause the Executor is said to represent the person of the Testator for as to the estate committed to his trust he may charge others and be charged himself sue and be sued as the Testator himselfe might And the estate he hath by his Executorship is said to be in him to the use of the Testator and in his right and that he doth in the disposition of his estate is said to be in the right and to the use of the Testator also And the Administrator hath the same power and property over and in the goods and chattels the same remedy by Suit and so farr forth shall be charged as the Executor for they differ not in nature but in name only And yet the Administrator is but the Ordinaries deputy and he may revoke the Administration or call the Administrator to an account Swinb 12. Dâ—er 143. Coo. super Littl. 112. Litt. Sect. 168. Coo. 〈◊〉 â—1 A Testament is of that nature that it doth much differ from 3. The nature and effect of a Testament and of a Codicill other acts and deeds that men doe and execute in their life times for albeit it be made sealed and published in never so solemn a manner yet it hath no life nor vertue in it untill the testators death for it is a Maxime in law Omne Testamentum morte consummatunâ— est Et voluntas ambulatoria usque aâ— extremum vitae exitum it is therefore resembled untill death to the interlocutory sentence and after death to the definitive sentence of a Iudge And hence it is said Sed legum servandafides suprema voluntas Quod mandat fieriqu jubet parere necesse est a 〈◊〉 〈◊〉 〈◊〉 Sect. 30â— And for this cause a man may alter or make void his will at his pleasure and he may make as many new Wills and Testaments as he will and there is no meanes under the Sun to barre a man of this liberty b Lin. Sect. 168. Perk. Sect. â—7â— And the latter Testament doth alwaies revoke and overthrow the former but otherwise it is of a codicill c Swâ—â—b 13. 14. for a man may make as many of these as he will and make no Testament at all d Broo. Testament 20. or if he make a Testament he may afterwards make as many codiciâ—s as he will and one of them will not overthrow the other for in the first case they must be all annexed to the letters of administration and the Administrator must perform them and in the latter case they must be all annexed to the Testament and the Executor must take care to performe them e Plow 343 â—44 A Testament therefore is said to have three degrees 1. An Inception which is the making of it 2. A Progression which is the publication of it 3. A Consummation which is the death of the testator f Coo. super Litt. 112. In Grants therefore the first is of greatest force but in Testaments the last is of greatest force But when a Testament is perfect by the death of the party it doth as effectually give and transferre estates and alter the property of lands and goods as acts executed by deed in the life time of the parties 〈◊〉 for hereby discents of lands are prevented and a man may make estates in Fee-simple â—â—itt Sect. 1â—7 168. Fee-taile for life or yeares of lands tenements rents reversions or services as effectually as by deed and these estates also will be good without any Livery of Seisin or Attournement And hereby also rents and power to distraine for them may be reserved conditions created and annexed to eâ—â—ates or things devised 〈◊〉 And therefore they that take by devises of lands are said to take 〈◊〉 Perk. Secâ— 505. in the nature purchasors 〈◊〉 And if therefore a tenant in taile make a Feoffment to the use of himselfe in Fee and after devise the same 〈◊〉 Dyer 221. land to his wife in fee and die the sonne is not remitted though the Father die seised for the devise doth prevent the discent To the making of every good Testament these things are requisite Coo. 6. 23. 4. What shall â—e said a good and a sufficient Testament Or not 1. That the Testator be a person able to make a Testament and not disabled for any speciall cause either in respect of his person mind or condition or in respect of the thing whereof the Testament is to be made And for this it must be knowne k Sâ—â—t 32. 34 H. 8. c. 5. Coo 4. 51. Broo. Testament 13. That a woman that hath a husband cannot make a Testament of her land First in respect of the person that doth make it and the thing whereof it is made And what Persons may make a Testament And of what things or not And how or goods except it be in some speciall cases for of her lands shee can make no Testament with or without her husbands consent l 〈◊〉 H. 7. 14. Perk. Sect. â—0â— Fitz. Executor 〈◊〉 of the goods and chattels she hath as Executrix to any other she may make an Executor without her husbands consent for if she do not so the Administration of them must be granted to the next of kin to the deceased Testator and shall not goe to the husband m Plow 526. Fitz. Executor 109. but of them she can make no devise with or without her husbands leave for they are not devisable and if shee doe devise them the devise is void And of the things due to the wife whereof she was not possessed during the marriage as things in action and the like it seemes she may make her Testament at least she may make her husband Executor n 12 H. 〈◊〉 24. 18 Ed. 4. 11. Perk. sect 501. Fit Executor 5. 28. 109. Broo Testament 〈◊〉 of her Paraphonalia viz. A Fame Covert her necessary wearing apparell being that which is fit for one of her rank some say shee may make a Testament without her husbands leave others doubt of this howbeit all agree that shee and not his Executor shall have this after her husbands death and that the husband cannot give it away from her And of the goods and chattels her husband hath either by her or otherwise shee may not make a Testament without the licence and consent of her husband first had so to do But with his leave and consent she may make a Testament of his goods and make him her Executor if shee will And it is said also that if shee do make a Testament of his goods in truth without his leave and consent and he after her death suffer the Will to bee proved and deliver the goods accordingly in this case the Testament is good And yet if the husband give his wife leave to make a Testament of his goods and she do so he may
good Devise of the land in Fee-simple or Fee-taile * 〈◊〉 c. 9. â—ac New mans case And if a man make a Feoffment of his land to the use of his last Will and then devise that his Feoffees shall be seised to the use of I S this is a good Devise of the land per intentionem * Plow 54â— Coo. 4. 66. 8. 95. And if I devise that I S shall have hold and occupy my land for his life this is a good Devise of the land for his life * Dye◠〈◊〉 33. 128. Coo. 1. 83. 6. 42. Dyer 4. 33. If a man have a Lease for yeares of land and he devise his Lease or his Terme or his Ferme or the profits or occupation of the land by either of these Devises his whole lease and all his interest in the land is given as well as by any other forme of words 3. A man may devise lands tenements or hereditaments in possession in Fee for life or yeares or he may devise it in reversion viz. to one for life the remainder to another in Fee or in taile or in any other sort as a man may grant it by his Deed and such Devises are good But if the Fee-simple of land be devised to one the remainder cannot be devised to another albeit the first Devise be but conditionall And therefore if land be devised to I S and his heires and if he dye without heires that it shall remaine to I N and his heires this is a void remainder to I N. So if a man devise his land to I S in Fee ita quod solvat I N 20l. and if he faile that it shall remaine to I N and his heires this remainder to I N is void for if I S faile of payment I N shall not enter and have the land but the heire of the Devisor And yet perhaps a rent may be devised after this manner Howbeit if another man have a Rent-charge of 20l. a yeare issuing out of my land for Dyer â—39 â—4 20. yeares and he devise this unto me untill I have levied 100l by way of retainer the remainder to I S this remainder is not good 4. A Devise may be of lands goods or chattels simply and absolutely or conditionally the simple Devise also may be in praesenti Condition Pâ—â—w 〈◊〉 Peâ—k Sect. â—63 See 〈◊〉 〈◊〉 8. 95 or in futuro And therefore as a Devise to one and his heires in praesenti is good so a Devise to one and his heires after the death of I S is good If I devise land to I S and his heires on condition as so as or ita quod he pay 10l to W S or paying to W S 10l or ad solvendum 10l to I S the Devise in all these cases is a good conditionall Devise and if the condition be not performed or broken the estate is ended and the heire may take advantage of it And therefore if lands be so given to the heire the condition is idle because none can enter but him And if I devise that if I S pay my Executors 20l. that hee shall have White acre to him and his heires for ever or for life c. this is a good Devise and after the contingent shall take effect accordingly and in this case and such like the heire of the Devisor must keep the land untill the contingent doe happen In like manner as if it bee a chattell the Executor shall keep the thing untill the condition bee performed and after a condition broken hâ— shall take advantage of it 5. A Devise may be also with a limitation as in the cases before Limitation and as where one gives land to another and his heires so long as I S shall have heires of his body or where one doth devise his land to A his sonne and his heirs for ever paying to B his brother 20 l. when he shall come of age and then that he shall enter and have it to him and his heirs and if he die without heirs of his body the said B then living then that B and his heirs shall have it in the same manner And these and such like Devises are good 6. A man that is seised of land in Fee may devise that his Executors Coo. super Lit. 112. 11â— 236. shall sell it or may devise it to his Exâ—cutors to sell or Devise it to his Executors and that they shall sell it and these Devises are good 7. A Devise may be of a rent or of land reserving Dyer 348. 100. 8. 84. 85. Clause of Distresse a rent with clause of Distresse As if a man Devise land to I S paying 10 l. by the yeare to his wife and if it be unpaid â—arrantiae that she shall distraine for it this is a good Devise But a Warranty cannot be made by a Wilâ— And yet if a man devise land to Coo. super Litt. 38â— another for life or in Taile reserving a rent in this case the heires of the Devisor shall be bound to the Warranty in Law and the Devisee shall take advantage of it 8. A man may devise his land Plow 523. 540. Dyeâ— 357. Coo. 8. 94. 83 to one and devise a rent out of the same land to another and these Devises are good So a man may devise his land to one in Fee and after devise the same land to another for life or years and these are good Devises and may stand together So also if a man in the fore-part of his Will by generall words devise all his lands to one in Fee and in the latter part of his Will devise some speciall part of it to another in Fee these Devises are good and shall stand together as for example if one have a Farm and in the first part of his Will give this Farm to one and in the latter part of his Will give one Close a part of this Farm to another or a man devise all his land in B which is in the County of Glouâ— to A his daughter and the latter part of his Will deviseth all his land in the County of Glouâ— in the possession of I S to his sonne and part of the land in B. is in the possession of I S and in Gloucestershire these are good Devises and shall stand together * 38 Bliz. Co. B. Agreed divers times But otherwise it is when the generall clause doth come last as where one doth give his land to A his daughter and in the latter part of his Will doth give all his land in Hartfordshire in the possession of I S to W and the land given to A is in Hartfordshire and in the possession of I S in this case the Devises will not stand together for the first Devise is void and so also it is where both the Devises are particular as where first in a mans Will he doth give White Acre to A and his heirs and after in
his Will he doth give White Acre to B and his heirs in this case the first Devise to A is void * Dyer in his Lecture 1. per Inst Dodr. And yet in this last case some have held the Devises shall be good and that A and B shall be Joint-tenants Ideo Quaere * Trin. 9. Ia. B R. If one devise all his land to I S and his heirs excepting 20 l. for seven years which he willeth shall be imployed for his children this is a good Devise of this summe of 20 l. a yeare 9. And a man may devise his land for so many yeares as I S shall name and after appoint that his Plow â—23 546. sonne shall have it during the minority of his sonne and both these Devises may stand together And therefore if A be possessed of the Mannor of D for yeares and he deviseth all his Term to his eldest sonne if he live so long and if he die before he have any issue of his body then to his younger sonne in the same manner but withall he doth appoint that his wife shall have the occupation of the land untill his eldest sonne be 21 years of age these Devises shall stand together and the wife shall enjoy the Mannor for that time by this Devise 10. A man may devise a term of years by way of remainder as for example a man that is possessed of a term of Coo. 8. 95. Plow 519. 546. 516. 539. Dyer 277. years of land may devise it to I S for life the remainder to I D or to I S for life and that it shall after remaine to I D or to I S for so many years as he shall live and after to I D or in any such like manner these are good Devises both to the first and to him in remainder also by way of Executory Devise though not by way of remainder and in this case the first Devisee cannot hinder the second Devisee of the remnant of the terme But a man cannot by Deed Grant in his life time grant his term in this manner * Coo. 10. 8â— â—7 pasâ—â— 17. â—ac B. R. child versâ—s Baily Nor if a man be possessed of a term can he entaile it by his Will And therefore if a man possessed of his terme of years of land Devise his term or his land to I S and his heires or to I S and the heirs of his body or to I S and his issues the remainder to I D this remainder is void and it is a good devise of the whole terme to I S and his Executors * 37 〈◊〉 6. 30. 〈◊〉 Broo. Sect. 388. 3â—4 209. Also a chattell personall may as it seemes be devised to one for life and afterwards to another but yet so as the one must have the property only and the first but the occupation only as if one devise that I D shall have the occupation of his plate for his life and after that it shall remaine to I S this is a good Devise of the plate to I S. But if the thing it selfe be devised to the first of them then the Devise to the second is void for the gift of a chattell personall for one houre is the gift of it for ever And so it did seeme in the Lady Daves case Hill 9. Car. B. R. 11. A Legacy of goods or chattels may be given Swinb part 4. Sect. â—7 to or untill a certaine time or from or after a time certaine or incertaine as for five years or from or untill the marriage of A or the like and these Dispositions are good 12. A man may Plow 524. devise his land for so many yeares as I S shall name and if I S doe name a certaine number of yeares in the life time of the Devisor this will bee a good Devise But if one devise his land for so many yeares as his Executor shall name it seemes this Devise is not good 6. As touching the sixth thing required in a good Devise these things are to be known 1. That Lands Tenements Dyer 371. Coo. 8. 83. 6. 16. super Litt. 111. Perk. Sect. 496. 500. 497. 538. Lit. Sect. 167. Dyer 155. old N. 〈◊〉 Sixthly in respect of matteâ— touching the thing devised and what may be devised and by what name and Heriditaments for the nature and quality of them are devisable as well as other things And therefore by the custome of some places lands in possession reversion or remainder are devisable in Fee for life or yeares and a man that hath a Lease for yeares of land may devise the land at his pleasure during his term But by the ancient Common-Law in favour to heires the lands that a man had in Fee simple were not devisable by Testament except only in Devise of lands and teâ—â—ements some speciall places by the custome of the place as Gavelkind-lands in Kent and lands within certaine Borrow-Townes as London Oxford c. and by the custome of those places such lands are devisable And in some places the custome is that they may devise their purchased lands only and in other places that they may devise their lands discended also And in some places the custome is that they may devise for life only and in other places that they may devise in Fee-simple and Fee-taile also And in all these places where such customes are they may devise their lands now as they might have done before the Statute for the Statute hath not destroyed their custome And therefore at this day they that have such lands in such places have their election eitheir to devise according to the power the custome doth give them or according to the power the Statute doth give them and in the first case the Devise is good against the heire for the whole and in the last case it is good against him for two parts in three only Also by the Perk. Sect. 496. 528. 538. Common-Law the Uses of lands were devisable as goods and chattels were as the pleasure of him that had them But otherwise and in other cases lands and tenements might not be devised and disposed by Will untill 32 H. 8. at which time the owners of lands tenements rents c. were by Act of Parliament enabled to devise and Stat. 32. H. 8 c 1. 34 H. 8. c. 5. dispose their lands as followeth He that hath any land in possession reversion or remainder by Socage Tenure and hath no land held in Capite or by Knights Service may devise all his land or any rent Common or other profit apprender out of it to any person in Fee-simple Fee-taile for life or years at his pleasure Hee that hath any such land held of the King in Capite by Knights Service or by Knights Service and not in Chiefe or held of any common person by Knights Service may devise two parts thereof in three to be devided or any rent c. out of
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
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
20. Iâ—c periâ— versâ—s Peaâ—se B. R. Joane Elizabeth and Anne and by B his second wife â—lice and Elizabeth and by C his third wife William a sonne and three daughters Mary Katharine and Johan and he devise his land to Johan his youngest daughter for life paying 1â—s 4d to the sonne and after her death to the sonne and the heirs of his body and after his death without issue to Elizabeth the daughter of the second wife and Mary the daughter of the third wife for their lives the remainder in Latin to the next of the blood of the Devisor for ever and the elder Joan hath issue I P and dyeth the sonne dyeth without issue the younger Joan hath issue and dyeth Elizabeth of the first wife hath issue and dyeth Anne dyeth having issue Alice dyeth without issue Mary and Elizabeth born of the second wife die without issue Katherine dyeth without issue in this case and by this Devise the sonne and heir of the elder daughter after the death of the sonne without issue and of Elizabeth and Mary and not all or any of the children or their children shall have the land because proximo in Latin doth devote a person certain and there be expresse Devises to others But if in this case the remainder bee limited in generall to the next of blood without any other matter all the daughters perhaps may have it as Joint-tenants If a man have two sonnes and a daughter which hath two daughters â—â—â—z Devise 9. Perk. Sect. 508. and he devise his land to a stranger for life the remainder to his second sonne for life the remainder in Fee to the next of blood to his sonne in this case if the eldest sonne die without issue the daughter and her daughters shall have the land Whatsoever will passe by any words in a Deed will passe by Secondly in respect of the thing devised See in the Exposion of Deeds supra the same words in a Will and more also for a Will is alwayes more favourably interpreted then a Deed And therefore if a man devise the profits use or occupation of land by this Devise the land it Coo. 8. 94. Plow 525. selfe is devised If a man devise thus I give all my lands to I S or I give all my Mevils case Fitz. Deviâ—e 4. Bâ—oo Done 41. tenemeâ—ts to I S or I give all my lands and tenements to I S by this Devise is given and I S shall have not only all the lands whereof the Devisor is sole seised but also all the lands whereof he is seised in common or co-parcinery with another and not only the lands hee hath in possession but also the lands hee hath in reversion of any estate in Fee-simple but by this Devise regularly Leases for years of lands will passe If a man devise thus I give all my land in possession only by Plow 66. this Devise there is given the lands he hath in possession only and none of the lands he hath in reversion If a man be seised of land in Fee-simple in Dale and devise thus Plow 343. 544. old N. 〈◊〉 89. Fitz. Devise 17. I give all my lands in Dale to I S and after Will made and published he doth purchase other lands in Dale and dyeth in this case and by this devise I S shall not have the new purchased lands and in this case it hath beene held further That if the Testator doe by word of mouth after the purchase of the same lands declare himselfe to be minded that I S shall have the same new purchased lands also by this Devise that notwithstanding I S shall not have them by this Devise * Trin. 37 Eliz. B. R. Breckford versus Parincoâ—e And yet it hath been adjudged That if in this case one come to the Devisor to buy his new purchased land and he say nay but I S shall have it as the rest that this is a new publication of the Will and that I S by this devise shall have these new purchased lands for a new publication of the Will in these cases will make the land to passe But if a man devise the Mannor of Dale and at the time of the devise he hath it not or devise his lands in Dale and at the time of the devise he hath no lands there and afterwards he doth purchase the Mannor of Dale or lands in Dale by this devise and in this case the Mannor and the new purchased lands will passe for in this case it shall be intended he meant to purchase it And yet the Statute enabling a man to devise lands saith Any person See before having c. Coo. 3. 30. If one have an ancient Tenement and lands belonging to it and Loftis versus Baker Hill 20. Ia. B. R. then purchase more lands and occupy them altogether with the Tenement many years and being all thus in his occupation he doth make a devise after this manner I give my Tenement in Dale and all my lands belonging to it now in my occupation to I S. by this devise I S shall have the ancient land onely and none of the new purchased land but if there be no ancient land belonging to the Tenement but new purchased land onely there perhaps it may be otherwise for in this case the words cannot else be satisfied As in case where a man hath some lands in Fee-simple and other lands for yeares onely in Dale and he devise all his lands and Tenements in Dale by this devise the lands he hath for years doth not passe but if he have no other lands in Dale but these lands in this case perhaps this land will passe If one have a moity of lands in Essex and a moity of lands in In Mevils case Kent and he devise thus I give my moities and all my other lands in Kent to I S it seems by this devise the moities in both Counties do passe and that I S shall have both the moities If a man be seised in Fee in possession of the moity of a Farm called Plich 20. 12â— Adiudged Scatergoods case the Farm of C. and of the reversion in Fee of the other moity expectant on a lease made to A and B for their lives and he make his Will thus I will that my wife shall have all my living which I now occupy untill my son come to 21. years of age and then I will have her have the thirds of all my living and that my sonne shall have all my Farm of C to him and his heirs by this devise if A and B dye before the heire be 21. yeares of age the wife shall have the thirds of the whole Farm and not of the moity in possession onely If a man be seised of land in a Village and in two Hamlets of the Dyer â—65 same Village and he devise all his lands in that Village and in one of the Hamlets by this
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.
of the Common Pleas may in open Court take knowledge of fines and record them by virtue of their office h Dyer 224. Cromp. Jur. Or the Chiefe Justice of that Court may by the Prerogative of his place take cognisance of fines in any place out of the Court and certify the same without any writ of Dedimus Potestatem i Stat. 15. E. B. Broo. Fines 20. and so also as it seemes may two of the Justices of that Court with the consent of the rest or one of them with a Knight but this is not usual at this day k Dyer 224. Broo. Fines 120. Also Justices of assise by the generall words of their Patents may take certify cognisances of fines without any special Dedimus Potestatem but at this day they doe not use to certify them without a speciall writ of Dedimus potestatem And fines have been levyed before Justices Errants Also cognisances of fines are taken by a speciall writ issuing out of Dedimus potestatem quid Cromp. Iur. 92. F. N B. 147. a. b. 146. F. G. the Chancery called a Dedimus Potestatem whereby commission is given in divers Cases to a private man for the speeding of some Act appertaining to a Judge upon a surmise that the parties that are to doe the same are not able to travaile and by this writ upon such a surmise power may be given to any Serjant at law alone or to any Knight and Gentleman together to take the conusance of such persons and they may by virtue thereof take the same l Curia 39. 40 E. l. 17. either of all or some of the parties m Dyer 220. and that as it seems in any place accordingly n 8 H. 6. 21. But a Justice or other person being cognisee in a fine may not take the cognisance thereof himself And all these that have power to take the conusances of fines are to take great heed of whom they doe take the same and whom they doe admit to make such conusances before them o 34 H. 6. 19 Broo. Fines 11. Cromp. Iur. 32. 92. And therefore they are to see that they know the parties that are to be Cognisors that they suffer not one man to make a conusance in another mans name and that they doe not take any conusance from any person prohibited by law for misdemeanors by such persons herein are punishable in the Star-Chamber p 42 E. 3. 7. 3 H. 6. 42 Perk. Sect. 613. Doct. et St. 155. Cromp. Iur. 55. And if there be any woman that hath a husband that doth joyn with her husband in the conusance the Iudges or Commissioners must take care they doe examine her whether she be willing and doe part with her right in the land willingly or by compulsion of her husband for albeit she be made to doe it by compulsion of her husband yet hath she no way to relieve her selfe when it is done q Stat. 23 El. chap. 3. Dyer 320. And after the Commissioners have taken the same cognisances by Dedimus Potestatem they are to certify the same truly and the day and yeare when it was taken r Dyer 220. Cromp. Iur. 92. and not another time for this may be a misdemeanor punishable in Starre-Chamber and to return the commission into the Court of Common Pleas under their hands and seales within a yeere after the taking of the same conusance at the farthest f Regist or 68. F. N. B. 147. b. And if they refuse to return or certify it the party grieved may by a writ called Cognitionibus admittendis or a Certiorare compell that Commissioner that hath it in his custody or his executor or administrator if he be dead to certify it t Dyer 246. But if any of the cognisors happen to die before it be certifyed then it cannot be certifyed at all for it cannot now be made a good fine u 〈◊〉 1 H. 7. 9. Broo. Fines 124. And so also as some hold if the King die * Dyer 220. Stat. 15. F. 2. 44. 44 E. 3. 38. But if the Kings silver be entred Cognitionibus admittendis quid in paper or upon the back of the writ of covenant as the use is and the party die after this in this case the fine may goe on and will be a good fine notwithstanding the death of the party And Judges for the recording of fines be the Justices of the comÌ„on Pleas onely and therefore all cognisances of fines must be certifyed thither for in that Court onely and not in any other of the Courts of Record at Westminster or in other inferiour Court or ancient demesne are fines to be levyed * 50 Ass pl. 9. But by speciall grant a fine may be levied in a base Court y Stat. 2. H. 6. chap. 28. 37 H. 8. c. 19 5 Eliz. c. 27. And by certaine Acts of Parliament fines may be and are levyed in the county Palatine of Chester county Palatine of Lancaster and county Palatine of Duresme of lands lying within those places And if any persons doe take conusance of fines other then such as before that have power or any other persons or Judges shall record fines or they shall be levyed in any other Court or place then as before such fines are void A Fine may be levyed of all things whereof a Precipe quod reddat Stat. 32. H. 8. c. 7. West Symb. in his Tract of Fines Sect. 25. 50. see in exposition of deeds inâ—ra Numb 3. In respect of the thing whereof the Fine is levied of what things a Fine may be levyed or not and by what names lyeth and of all things which are inheritable and in esse at the time of the fine levyed whether the thing be Ecclesiasticall and made temporall or temporall As of an Honor Manor Island Barony Castle Messuage Cottage Mill Toft Curtilage Dove-house Garden Orchard Land Meadow Pasture Wood Underwood Chappell River Chauntry Corrody Office Fishing Warren Fair Rectory Mines a view of Franke pledge Waife Estray Felons goods Deodands Hospitall Furzes Heath Moore Rent Common Advowson Hundred Way Ferry Franchise Seigniorie Reversion Toll Tallage Pickage Pontage Aquitaile Services Portion of tithes Oblations or the like And therefore fines De honore de S. or De Manerio de S. or De Castro or De Castello de S. cum pertinen ' are good So fines De uno mesuagio uno cottagio uno molendino without Aquatico or Granatico annexed are good So fines De uno T of to uno Curtilag uno Columbario uno gardino uno pomario decem acris terrae decem acris prati decem acris pasturae decem acris bosci decem acris subbosci de Balliva sive officio Ballivat ' de D. de Custod sive officio custod de B. de custod parci forrestae de D. de officio senescalciae de S. cum pertinen ' decem acris bruerae
may passe by the name of wood as de 20. acris bosci c. Parsonages Rectories Advowsons Vicarages or Tithes impropriate West Symb. ubi supra passe not by the names de advocatione Ecclesiae but de Rectoria ecclesiae de S. cum pertinen ' But when the fine is but of a presentation to a Church onely it must be de advocatione ecclesiae de S. and not cum pertinen ' and of all Vicarages endowed the writ must be de advocatione vicariae ecclesiae de S. and not cum pertinen ' and where no vicarage is indowed it must passe under these words de advocatione ecclesiae de S. c. If part of an entire thing passe it must passe by these words de medietate tertia parte quarta parte c. as the Case is as de duabus partibus in tres partes dividend 8. acr terrae or de medietate omnium decimarum granorum et foeni de ter ' vocat ' le Blacklands cum pertinea in H. But if an entire thing as a Manor or Messuage be parted as if the Manor of S. be divided into two parts if the division be so made that the Manor of that part be not extinct and a fine be to be levied of a part of it it must passe by the name of the whole as de manerio de S. So if a Messuage and 23. acres be parted the part divided shall passe by the name of one Messuage and 10 acres of land and not by the name de medietate unius messuagii et viginti acr ' ter ' And if things be otherwise named then as before sometimes the fine will thereby lose his force in all and sometimes in part But if a thing be twice named in a writ of covenant as a Manor and a Hundred parcell of the same this will not hurt the fine The things that do passe by the fine must be named to lye in the Broo. Fines 44. 91. 9 E. 46. Shire Town Parish or Hamlet where it doth lie for a fine is good albeit it name the lands to lie in a Hamlet or in a town decayed but it is good to name the town wherein the Hamlet is and that with addition for distinction if there be divers towns of the same name in that county And if a Manor extend into divers Towns as into A. B. and C. it is good to expresse all or none as de Manerio de S. in A. B. and C. For if any of the towns be omitted none of the Manor in that town will passe but if the fine be of the Manor of S. cum pertinen ' and say not where it lieth this fine will cary the whole Manor And if there be divers Manors of one name as South S. North S. or the like it is safe to set down in the writ for the fine which Manor is intended to be passed howsoever the fine may be good of the Manor intended to be passed without the distinction The order of placing things in fines is First to set down the most 7 H. 6. 39. Plow 163. Regist 2. worthy things before things lesse worthy as a Manor before a Messuage a Castle before a Manor a House before land arable land before meddow meddow before pasture c. Secondly to set down things generall before things speciall as land being the Genus of meddow Pasture wood c. before them wood being the Genus to wood grounds as alnetum salicetum before them Thirdly to set down entire things before parts of things as de Manerio de S. medietate Manerii de B. Fourthly to set down particular things after this manner suagium tum lendinum umbare dinum ra tum tura cus ra Mes Tof Mol Col Gar Ter Pra Pas Bos Brue Mora ria cus tum caria ditus Iunea Maris alne rus red Sectare priora And yet if this order be not observed but the things be otherwise placed in the writ if it be suffered to passe the Fine will be good enough If either the Cognisor or Cognisee at the time of the Fine levied 4. In respect of the estate of the parties thereunto Stat. 27 E. 1. ch 1. 41 E. 3. 14. 44 E. 3. 36. 39 E. 3. 16. 17 E. 3. 62. 24 E. 3. 26. be seised of any estate of freehold in fee simple fee taile or for life n possession reversion or remainder whether the same be by right â—or wrong the fine will bee a good fine in this respect And therefore if one that is seised of land in fee simple or fee taile generall or speciall levy a fine of this land to a stranger this is a good fine So if a Strangere levy a fine to him of this land this is a good fine So also a fine levyed by or to a tenant for life of the land he doth so hold is good in this respect But hee must take heed of a forfeiture in this case for if tenant for life levy a fine Sur Cognisanc ' de droit Forfeiture come ceo c. to a stranger or levy a fine sur Grant Release to a stranger to hold to the cognisee for a longer time then for the life of the tenant for life howsoever in this case the fine be a good fine yet this is a forfeiture of the estate of the tenant for life whereof he in reversion or remainder may take present advantage And yet if such a tenant for life levy a fine sur Grant et Release to hold to the cognisee for the life of the tenant for life or grant his estate by such a fine to him in reversion or remainder or by fine or grant a rent out of the land for longer time then for his own life in these cases the fine is good 1 H. 7. 22. Co. 2. 56. 9. 106. there is no forfeiture of the state of the tenant for life So likewise if a fine be levyed to a tenant for life by a stranger who doth thereby acknowledg all his right to be in the tenant for life release and quite claim to him his heirs go no further this is a good fine no forfeiture of the estate of the tenant for life for his estate is not changed thereby and it may enure to him in reversion but if the stranger say further in the fine Come ceo que il ad de son done this is a forfeiture But if neither the cognisor nor cognisee be seised of any estate of freehold in possession or reversion of the lands whereof the fine is Co. 5. 123. 3. 88. 90. Super Lit. 251. 3 H. 7. 9. 5 H. 7. 41. 3. H. 6. 21. 27 H. 8. 4. levyed at the time of the levying of the same but have only a lease for yeares or not so much the fine is void and of no force as to any estranger howsoever it may be good between the parties by way of
of the said two Manors to be the right of the said A as that which c. for which A doth grant and render one Manor to B for life with two parts of the other Manor which N holdeth in dower to have the one Manor and two parts of the other Manor to B for life the remainder after his death to A in taile and that after the death of N the third part shall remaine to another So if a fine be levied of the Manor of G with 44. Ass Plo. 11. Bro. Fines 11â— the appurtenances by A unto C which A knowledgeth the right in C as that c. and C granteth and rendreth the same to A in taile the remainder of the fourth part of the Manor towards the West to the said A and her heires the remainder of another fourth part towards the East to I. in fee and so of the other two fourth parts Or incertainly by 3. third parts in remainder to A B and C in remainder severally and these are good Concords If T and E his wife levie a fine to R D and T C of divers Co. 5. 38. Manors and lands in A B and C and in the fine there are divers grants and renders and one grant and render is of the Manors of A and B and the lands therein to T and E and the heirs of T and in another render 100. acres parcell of one of the same Manors is granted to E in taile the remainder to the right heires of a stranger notwithstanding this repugnancy the Concord and consequently the whole fine is good The fine must bee levied and sued forth in that manner and order See before 〈◊〉 In respect of the manner and order of levying it and other matters as before is set forth for if it be not so but that there want an Originall writ or if there be one it doth beare Teste after the Dedimus Potestatem or the like it will be a defective fine and either ipso facto void or at least voidable by writ of Error If any one of the Conusors die before the Conusance be certified Dyer 220 254 Crom Jur. 92. Dyer 246 after it is acknowledged and taken the fine cannot now bee made a good fine and yet if the Commissioners shall certifie this Conusance with an antedate and so the fine be finished this may be a good fine at the common Law but perhaps may bee avoided by sentence in the Starre-Chamber But if the Conusance bee certified and the Kings silver paid to the King before the death of the Conusor the fine may be ingrossed and finished after his death well enough and it will bee a good fine And if a feme sole make a Conusance of a fine and before it be certified and ingrossed shee take a husband this will not let but the fine may be finished and albeit it be recorded and sued out in her name as sole whereas in truth she is covert and of another name yet is the fine a good fine however in this case it is not amisse to get a release of Errors from her husband Lands that are bought of divers persons may passe by one fine West Sym. ubi supâ—a and then the writ of covenant must be brought by all the vendees against all the vendors and they must every one of them warrant for himselfe and his heires and such a fine is good If lands lye in divers shires it may be contained in one Concord Dyer 227. 15 Ed. 4. 33. and good enough but there must be severall writs of Covenant in every County else the fine will not be good If a fine be levied of Covin by a lessee for yeares or life or a Copiholder Co. 3. 78. 8. 9. 105. of purpose and with an intent to barre him in reversion Covin Recovery or the Lord of his inheritance this is of no force and therefore non-claime within five years will not hurt in this case So that it seems Co. 3. 80. 16 H. 7. 5. See infra in Deed. Nu. a fine or recovery may be covinous and avoidable for Covin as well as a deed and therefore that a fine or recovery levied or suffered of fraud to deceive Purchasors or Creditors will be void as to them as well as any other conveyance So also a fine or recovery levied or Usury suffered in execution or pursuit of an usurious contract may bee void by the Statutes of usury as well as a feoffment or other conveyance by deed But a fine or recovery shall not be said to be levied Duresse or suffered per duresse and avoided for that cause The Conusance of a Fine and a Grant and Render therein shall 7. How the concord of a Fine shall be expounded and taken Co. 5. 38. See in exposition of Deeds infra be expounded and taken as a Charter or other conveyance between party and party because it is a conveyance upon Record and not as a writ or judgment upon Record And therefore if A and B by fine knowledge the Manors of S T and W to be the right of C and C doth render the Manors of S and T to A by one render and after by another render limit 100. Acres parcell of the Manor of S to B this shall be a good Concord and be expounded according to the intent of the parties viz. That B shall have the 100. acres and A all the residue of the Manor If a fine bee levied to two men heredibus without the word 37 H. 6. 5. Suis this is void for incertainty in a fine as it is in a deed Deed. If a fine believed come ceo que il ad de son done hereby a fee-simple Recovery Co. super Lit. 9. Frederick versus Wakefields case Trin. 36 Eliz. Co. B. will passe without any word of heires And so also it is in case of a common recovery If the lands be limited in the Concord of a fine to B for life and after to the children of C begotten and C hath at the time of the fine levied two daughters only in this case the sonnes and daughters that are borne after shall take nothing by this fine And no averment of intent will help in these cases And yet an averment Averment lieth upon a fine of the uses thereof and of no other matters as upon a deed A fine at the common Law or a fine without Proclamations was Stat. 18 Ed. 1. de â—inâ—bus Stat. 34 Ed. 3. 16. Plow 373. Stat. 4. H. 7. ch 24. 1 R. 3. ch 7. 32 H. 8. ch 36. 8. What persons shall be barred by a Fine or a Fine and Non-claime And in what time Or not And how once a perpetuall bar to all persons that had right and no impediment at the time of the fine levied and that did not claime within a yeare and a day after the execution of the fine by
therefore it is held if such a Corporation as hath an absolute estate and authority of his possessions so as he may maintaine a writ of right thereof as Major and Communalty Deane and Chapter c. levie a fine of their lands they and their successors are barred presently but if a Bishop Deane or Prebend without assent of the Deane and Chapter or a Parson and Vicar without assent of the Patron and Ordinary had levied a fine this would not have barred the successor neither will it barre now with their assent for they are restrained by divers Statutes So also such persons are barred by the fines that are levied by others if they make not their claime in time as if one disseise a Corporation aggregate of land belonging to their Corporation and after levie a fine of it with Proclamations and they doe not make their claime c. within five years hereby they are barred 2. Where the Ancestor is barred by the fine there for Co. 9. 105. the most part the heire is barred also And therefore if tenant in taile be disseised and the disseisor levie a fine with Proclamations and the tenant in taile suffer five yeares to passe without claime c. hereby he and his issues are barred for ever so that the heire doth suffer for the laches of his Ancestor 3. The estates that shall be Co. 9. 104 5 124. barred by the fine are estates by the common Law or by Copihold in fee-simple fee-taile or for life or for yeares the estates also of â—enant by Statute Elegit and of Gardeins in Chivalrie and of Executors that have land untill debts and Legacies be paid And therfore if one enter upon and put out a Copiholder of land and levie a fine thereof and the Copiholder suffer five yeares to passe and make no claime c. the Copiholder and his Lord both are hereby barred for ever And if a lease be made for yeares and the lessor or another before entrie of the lessee levie a fine with Proclamations and the lessee doth not not make his claime c. within five yeares hereby the lessee is barred of his interest forever 4. The Plow 378. Bro. Fines 123. Co. 5. 124. things whereunto these Statutes doe extend are lands and tenements and not a Rent or other profit apprender out of the land and therefore if I have a rent common or Estovers out of land or a way over land or power to sell the land and a fine is levied of the land it selfe and I doe not make my claime of my rent c. within five yeares yet I am not hereby barred of my rent c. And for this cause it is that if a tenant in ancient demesne levie a fine of his land and five yeares passe the Lord is not hereby barred to avoid it foâ— herein he claimeth not the land but his ancient Seigniorie 5. The time in which they must make their claim or bring Plow Lord Zouches case 370. their action that have present right and no impediment is within five yeares after Proclamation had and the time for them which have impediments is within five yeares after the impediments removed 6. The time within which they must make their claime Dyer 3. Co. 3. 86 91. Plow 373. or bring their action whose right doth happen afterwards if they have no impediment is within five yeares after the time that their right doth accrew and if there be any impediment within five years after the impediment removed 7. The persons whose right is saved and preserved are mentioned in the first and second Saving of the Statute of 4 H. 7. and they are strangers and not parties nor privies 8. They that have benefit by the first Saving of the Statute shall have none by the second Saving for he that will be within the second Saving to have benefit by it must be 1 Another person 2 The right must come and acrew to him first 3 It must come to him after the fine and Proclamations 4 His right must be upon some cause or matter before the fine 9. No fine shall Co. 5. 124. 9. 106. barre any estate in possession reversion or remainder which is not devested and put to a right at the time of the fine levied And therefore if one levie a fine of my land whiles I am in possession of it this fine will not hurt me So if the tenant of the land out of which I have a Rent or Common c. levie a fine of the land this shall not barre me of my Rent or Common for I am still in possession of this in the judgement of the Law So if there be tenant for life the remainder for life or tenant in taile the remainder in taile and the first tenant in taile or for life doe bargaine and fell the land by deed indented and inrolled and after levie a fine to the bargainee in this case the remainders are not barred albeit five yeares passe without claime for the Law in these cases doth adjudge them alwayes in possession So if I make a Lease for yeares of land rendring a rent and a stranger levie a fine of the land and the lessee for yeares payeth his rent to me duly in this case I am said to be alwayes in possession and therefore am not barred by this fine of my reversion So if there be a tenant by Copy or lease for life the remainder for life and the first tenant for life accept of a fine of the land with proclamations and 5 years passe without claime c. hereby he that is in remainder is not barred So if one have a lease for years of land to beginne in futuro and a fine is levyed of the land and five years passe after the terme beginne it seemes this is no barre because this estate is not put to a right And for the further illustration of all these things see the examples following c Stat. 4 H. 7. 32 H. 8. Co. super lit 372. 1 Co. 9. 138. 140. Dier 3. If tenant in taile levy a fine of the land intailed with proclamations 2. Issue in taile barred by the fine of his Ancestor or some other according to the statutes this is a barre to the estate taile wherein these things are to be known 1. That wheresoever the issue doth claime by the same title and must make his Conveyance to the lands by him that levied the fine there the fine will barre him and therefore if lands be given to the husband and wife in speciall taile viz. to them and to the heires of their two bodies issuing or the like or if the gift be to them and the heires males or females of their two bodies or to them and the heires of their bodies with the remainder to the right heires of the husband in fee and the husband alone levieth a fine with proclamations by this the issue in taile is barred And yet so as the
to it after it is done And therefore if a stranger of his owne head will make an entry or claime into land whereof a fine is levied whereunto I have right and he doe it to my use and I doe not agree to it within the 5. yeares this entrie or claime will not avoid the fine And yet it was held by Just Dodridge M. 2 Car. B. R. that if a stranger enter in my name and to my use that have the right that this doth vest the estate in me before agreement and I shall be said to agree untill I doe disagree A fine also is and sometimes may be avoided by plea As by Stat. 4 H. 7. c. 24. Co. 3. 141. 88. Dyer 334. 3. By a plea. Averment of the continuance of seisin of the Land in another at and before the time of the fine levied and that partes finis nihil habuerâ—nt tâ—mpore levationis finis and then he must shew in whom the estate was As if lessee for yeares or a disseisee levie a fine to a stranger that hath nothing in the land or A be disseised by B and B bee disseised by C and B levy a fine to D or one that hath a right of a remainder only or a disseisor make a gift in taile and the donee make a feoffement to A and after levie a fine to a stranger that hath nothing in the land But this plea it seems neither parties nor privies albeit they bee issues in taile may have at this day but strangers only and therefore in the last case the disseisor and not the issue in taile may avoyd this fine by this plea. But if a Collaterall Ancestor of whom the issue in taile doth not claim the land levie such a fine the issue may by this plea avoid it It seems also the issue in taile may have this plea to a fine Sur Release only Also there is a plea by which as it seems a fine hath been avoidable which in effect is nothing else but an averment of seisin still Co. 3. 84. Dyer 334. 290. Stat. 27 E. 1. c. 1. in the demandant or plaintiffe or his heires before at and after the time of the fine levied And this plea as it seems no man may have at this day but the issue in taile only to avoid a fine levied Sur grant Render by the Ancestor in taile and not to avoid a fine levied Sur Conusance de droit come ceo que il ad de son done c. And a feme Covert to avoid a fine levied by her husband alone If there be two of one name and one of them levie a fine of the land of the other or a stranger levie a fine in the name of him 34 H. 6. 19. 19 H. 6. 44. that is owner of the land in both these cases the fine may be avoyded by pleading the speciall matter And yet some hold that in this case the party hath no remedy but by action of disceit A fine also is and sometimes may be avoided by the sentence of 4. Pâ—a Vacat a Court when it appeareth to be gotten and obtained by some notorious fraud or practise And now it is high time we come to the second kind of common assurances made by matter of record viz. a Common Recovery CHAP. III. Of a Common Recovery A Recoverie in generall is the obtaining of any thing unjustly 1. Common Recovery Quid. Co. super Lit. 154. See the Preamble of the stat of 23 H. 8. cap. 10. 23 Eliz. cap. 3. Doct. Stud. 41. West Sym. tit Recovery taken or detained by judgment or triall of Law And it is either a common recoverie which is such a recovery as is used for a common assurance of land or other recovery which is not used as an assurance of land And the common recovery that is used for the assurance of land is nothing else but â—ictio juris or a certaine forme or course set downe by Law to be observed for the better assuring of lands and tenements to men And this is somewhat after the example of the recovery upon Title which is without consent and contrary to the will of him against whom the same is had for Recoveror Recoveree Vouchee there is in this a colourable suit wherein there is a demandant which is called the Recoverer and a tenant which is called the Recovere and one that is called to warrant upon a supposed warranty which is called the Vouchee The common recovery is somtimes with a single voucher which 2 Quotuplex is when the writ is brought against him that is to passe the land immediately and he doth vouch over the common vouchee And sometimes it is with a double voucher which is when the writ is brought against another to whom he that is to passe the land hath aliened it and he doth vouch him that is to make the assurance and he doth vouch over the common vouchee and this is the â—urest way and the saâ—est kind of recovery In this formality of a common 3 The manner and order of suffering a Common Recovery recovery the course is that by agreement of the parties a reall See the places before Co. 1. â—4 10. 43. 45. action is begun by a writ of entry brought by him that is to have the land assured against him that is to make the same assurance if it be with a single voucher or if it be with a double voucher against him to whom he that is to make the assurance hath aliened the land And in this suit the recoveror that doth bring the action doth â—urmise that the tenant against whom the writ is brought hath no right to the land but that the recoveror hath right thereunto and that the tenant came to it from such a stranger whom the demandant doth name And to this the tenant doth appeare in person or by Atturney and then doth enter into defence of the land but in pleading doth vouch to warrant i. doth alleage that he bought the land of I. S. a stranger who in the conveyance thereof bound himselfe and his heirs to warrant and make good the title to him or them to whom it is conveyed and thereupon he prayeth that I. S. may be called in to defend the title and then hee is allowed by the Court to call in I. S. to say what he can for the justifying of his right to the land before he so conveyed it And hereupon I. S. doth appeare and make shew as if he would defend the title but doth pray a further day may be assigned him to make his defence which being granted him by the Court at the day appointed he by agreement covin and assent of the parties doth not come in but make default And thereupon the land is to be recovered by him that brought the writ against the tenant and he is left for his remedy to I. S. upon his warranty and accordingly
services reserved upon their leases that shall be due after the same recoveries had And also like actions for wast done after the recovery had And like remedy upon a disturbance in a Presentation to an advowson and in like manner and forme as the lessor should or might have had if the same recoveries had never been had albeit the same lessees doe never Atturne to the same recoverors And if a man make a lease for years to begin at Michaelmas reserving rent and before Michaelmas he suffer a recovery in this case the recoveror shall distraine for this rent which the lessor before the recovery could not distraine for But if the recovery had not been had he might have distrained A recovery may be defeated frustrated and avoided which is called 7. Where a Recovery may be avoided Or not And by whom And how the falsifying of a recovery in part or in all for many causes as for Stat. 23 El. cap. 3. Co. 5. 40. 21 H. 8. cap. 15. 〈◊〉 super Lit. 46. 104. Co. 3. 78. Dier 249. Co. 3. 4. 1. 62 5. 39. Plow 515. that there is some grosse and substantiall Error in the manner of the proceeding But a recovery is not avoidable for false or incongruous Latine rasure enterlining misentring of any warrant of Atturney misreturning or not returning of the Sheriffe or other Fauxiâ—ier de Recovery want of forme in words and not in matter of substance because it is done by the consent of the parties Or it may be avoided for that he against whom the writ of entrie is brought is not tenant of the freehold by right or wrong at the time of the writ brought as when the writ is brought against a stranger that hath nothing in the land and he doth vouch the tenant in taile in possâ—ssion of the land Or a recovery may be avoided for that he that hath the estate and the right is neither party nor privy to the recovery as when the writ of entry is brought against a disseisor and he vouch a stranger that hath nothing in the land or a recovery is had against the husband alone of the land whereunto his wife hath title of dower Or a recovery may be avoided for that another hath some estate in the thing whereof the recovery is had at the time of the recovery suffered as when there is a recovery had of land whereof there is alease or estate for years by Statute Elegit or the like Or it may be avoided for that the recovery is had by covin as when it is suffered by tenant for life to diâ—â—â—herite him in reveâ—sion or when it is gotten by some undue practise and sinister dealing for in this case it is sometimes made void by a Vacat or sentence of a Court. And where a recovery is avoidable or reversable for any of these or such other like causes it must be avoided by him whom it doth concern that is barred and bound by the same recovery that should have had the land if the same recovery had not been and not by any other whom it doth not concerne As if an erroneous recovery be suffered by tenant in taile in this case his issues or if they faile the next in remainder or reversion shall defeat it So also if the land be recovered against a stranger the tenant in taile shall avoid it And if the land be recovered against a disseisor the disseisâ—e shall avoid it And if the land be recovered against him in reversion or remainder the tenant for years by Statute or Elegit shall avoid it but in these last cases they shall falsifie and avoid it during their particular estates only So also the wife shall falsifie the recovery suffered by her husband alone as to her title of dower only and no longer and further And he in the reversion or remainder shall falsifie and avoid the recovery suffered by the tenant for life either in the life time of the tenant or afterwards But neither he in reversion or remainder or any one by or under him or any other can falsifie a recovery suffered by the tenant in taile in possâ—ssion except it be for some such causes as before And the recoveror himselfe cannot falsifie a recovery So neither can a Gardian or a tenant of a Manor as if one hold land of a Manor and a stranger recover the Manor by a feigned title a tenant of the Manor cannot falsiâ—ie this recovery And in all these cases where a recovery is avoidable and a man hath power given him to falsifie he must doe the same sometimes by writ of Error as in the case of an erroneous proceeding and sometimes by pleading and the setting forth of the speciall matter as in the case where the tenant is not tenant of the free hold or when the recovery is had by covin against the tenant for life or the like and sometimes by the shewing and setting forth of the practise to the Court and a motion made that a Vacat may be made upon the Judgement for the causes alleaged And thus having done with the CoÌ„mon Assurances that are made by matter of record we come to the Common Assurances that are made by matter of Fait viz by Deeds and Instruments of writing in the Country wherein we must stay a while upon the learning of Deeds in generall and from thence we shall descend to the particular kinds of Deeds CHAP. IIII. Of a Deed. A Deed is a writing or Instrument written in paper or parchment 〈◊〉 A deed Quid. Termes of the Law Co. super Lit. 35. sealed and delivered to prove and testifie the agreement of the parties whose deed it is to the things contained in the deed All deeds are either Indented or Poll. The deed indented Termes of the Law Co. super Lit. 229. 143. 38 H. 6. 25. 〈◊〉 Quotuplâ—â— Indenture Deed â—oll which is that which is called an Indenture is when the paper or parchment is cut and indented And it is defined to be a writing containing a Conveyance bargaine contract covenants or matter of Agreement between two or more and is indented in the top or side answerable to another that likewise doth comprehend the selfe same matter And this is so called because it is so indented for albeit it be called an indenture and begin in these words Haec Indentura c. yet if it be not actually indented it is no Indenture And of the other side if it be not so called or these words be omitted yet if it be indented it is an Indenture And this was anciently called Charta cyrographata vel Communis because each party had his part The deed poll is that which is plaine without any indenting when the parchment or paper is polled or cut even And this was anciently called charta de una parte And this is single and but one which the feoffee grantee or lessee for the most part hath The deed indented is also sometimes
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
father excepting the land descended to him of the part of his mother these exceptions are void l Dier 97. 264. Co. super Lit. 47. Plow 153. 103 104. 14 H. 8. 1. Doct. Stud. 98. Or if the exception be such as it is repugnant to the grant and doth utterly subvert it and take away the fruit of it as if one grant a manor or land to another excepting the profits thereof or make a feoffement of a close of meadow or pasture reserving or excepting the grasse of it or grant a manor excepting the services these are void exceptions m Dier 59. 263. So if one grant his house chambers cellars and shops excepting his shops it is said this is no good exception And by the like reason if one grant his meadow and pasture grounds except his meadow grounds this exception is not good no more then if one grant two manors or two acres excepting one of them And of this opinion was the Chiefe Justice in B. R. Hil. 3. Car. in the case of Haward and Fulcher. n Plow 524. Dier 264. Br. grant 60 38 H. 6. 38. And yet if a man make a lease for yeares of a Mill excepting the profits thereof during the life of the lessor it is said this hath been adjudged a good exception But I doubt of this case for the exception of the profits of a thing is the exception of the thing it selfe And a man cannot grant an estate and reserve a part of the estate as make a feoffement in fee and reserve a lease for life or grant an Advowson and reserve the Presentation for his life o Co. super Lit. 150. Or if the exception be of an inseparable incident and a thing that cannot be granted by it selfe and from another as if a manor be granted excepting the Court Baron or land be granted excepting the common appendant thereunto belonging these exceptions are void But exceptions of severable incidents are good p Co. 5. 12. Hiâ— 9 Jac. B. R. per Curiam Or if the exception be of such a thing as the grantor cannot have nor doth belong to him by law as if a lessee for years assigne over all his terme in the land excepting the Timber trees earth or clay this exception is not good But if lessee for life make a lease for years or lessee for 21. years make a lease for This difference hath been agreed 20. years or tenant by the courtesie or in dower grant over their estate excepting the Timber trees these are good exceptions And if a lessee for life or years open a Cole-mine and then assigne over his estate excepting the mines or the profits thereof these are void exceptions q Co. super Lit. 47. Plow 53. Or if the exception be of a particular thing out of a particular thing as if one grant white acre and black acre excepting white acre or grant 20. acres of land by particular names excepting one acre of them these exceptions are void r Perk. Sect. 643. 641. Or if the exception be set downe incertainly as if one grant a house excepting one chamber or grant a manor excepting one acre but doth not set forth which châ—mber or which acre it shall be these exceptions are void A Tenendum is a clause of the deed whereby the tenure was heretoforce created And this doth most commonly and properly 8. Tenendum Quid. Co. super Lit. 6. Co. 9. 130. succeed the Habendum and was made by this word Tenendum per servicium c. But sithence the Statute of Quia emptores terrarum when the fee simple doth passe the tenure is alwaies of the chiefe Lord and is thus set forth Tenendum de capitalibus dominis c. And this clause at this day is for the most part omitted altogether A Reservation is a clause of a deed whereby the feoffor donor Co. 10. 107. Plow 132. Co. super Lit. 47. Perk. Sect. 625. lessor grantor c. doth reserve some new thing to himselfe out 9. Reservation or Reddendum Quid. of that which he granted before And this doth most commonly and properly succeed the Tenendum and is made by one or more of these words Reddend ' reservand ' solvend ' faciend ' inveniend ' or such like This doth differ from an exception which is ever of part of the thing granted and of a thing in esse at the time but this is of a thing newly created or reserved out of a thing demised that was not in esse before so that this doth alwaies reserve that which was not before or abridge the tenure of that which was before In every good reservation these things must alwaies concurre 1. 10. What shall be said a good reservation And what not a Plow 132. Perk. Sect. 626. Co. 8. 71. It must be by apt words 2. It must be of some other thing issuing or comming out of the thing granted and not a part of the thing it selfe nor of some thing issuing out of another thing 3. It must be of such a thing whereunto the grantor may have resort to distraine 4 It must be made to one of the grantors and not to a stranger to the deed As for examples b Plow 132. If a man grant land yeelding and paying money or some such like thing yearly this is a good reservation But if the grantee covenant to pay such a summe of money or to doe such a thing yearly this is no good reservation but a covenant to pay a summe of money in Covenant grosse and not as a rent c Co. 5. 111. 8. 71. super Lit. 214. 213. 99. If a lease be made for years rendering a rent to the lessor or his heires in the disjunctive or rendering a rent to the lessor without saying and his heirs c. or rendering a rent during the said terme and doth not say to whom or rendering 10 l. to the lessor and â—5 l. to his heires all these reservations are good But if a lease be made rendering rent to the heires of the lessor this reservation is void because the rent is not reserved to himselfe first d Co. super Lit. 142. If one grant land yeelding for rent money corne a horse spurres a rose or any such like thing this is a good reservation but if the reservation be of the grasse or of the vesture of the land or of a Common or other profit to be taken out of the land these reservations are void e Co. super Lit. 47. Co. 5. 3. Perk. Sect. 626. If one grant a manor mesuage land meadow or pasture or the vesture or herbage of of land meadow or pasture rendring a rent this is a good reservation But if one grant Tithes rents commons advowsons offices a corody mulcture of a Mill a Faire market priviledge or liberty reserving a rent this reservation is void And yet such a reservation also in case of the King
passe it one way or another Experientia there it may be good either way as where one doth make a feoffement in fee with a letter of Atturney to make livery and in the same deed doth covenant in case livery of seisin be not had to perfect the deed to stand seised to the uses of the feoffement in this case albeit no livery of seisin be made or atturnement had to perfect the feoffement or grant yet if it be in such a case where there is a consideration sufficient to raise the uses by the covenant the uses will arise by the covenant 3. When a deed may enure to divers purposes he to whom the deed is made shall have election which Co. super Lit. 301. Dier 251. way to take it and he may take it that way as shall be most for his advantage As if a deed of grant be made by the words Dedi concessi this in law may amount to a grant feoffement gift lease release confirmation or surrender and it is in the choise of the grantee to plead or use it the one way or the other So if a lease for Co. 2. 36. Dier 30. 302. years be made to me of land for mony by the words demise grant bargain and sell I may take and use this by way of bargain and â—ale or by way of demise at my pleasure So if one have a rent out Dier 109. 319. of land whereof I and my wife are jointly seised and he doth by his deed release give and grant this rent to me in this case I may use this as a release to extinguish the rent or as a grant of the rent as it may make most for my advantage Et sic de similibus But where any inconvenience may grow by such an election there the grantee shall not have an election but it shal enure as it may as where a man may passe land by the common law or by raising of use and setling Co. 2. 35 36. it by the Statute there sometimes it is so And therefore if in the same case before a father make a Charter of feoffement to his sonne and a letter of atturney to make livery and no livery is made hereby no use will arise to the sonne as it will in case of a covenant And if a lease for years be made of a Manor by the words bargaine sell demise and grant and this is to begin at a day to come in this case it must passe entirely as a demise at the common law or entirely as a bargaine and sale and the lessee hath not election to take or use it otherwise or to use it for part one way and for part another way 4. It shall enure as much as may be according to the apparent intent Finches law 58. of the parties And therefore it is that if a feoffement be made of a Manor with an advowson appendant or a bargaine and sale of land in possession and land in reversion together be made and the feoffement is not well executed for want of livery of Seisin or Atturnement or the deed of bargaine and sale is not inrolled in these cases albeit the advowson may passe without livery or atturnement and the reversion without inrolment yet because the intent doth appeare to be that all shall passe together therefore neither the advowson nor the reversion will passe by this deed 5. When a deed is made it shall enure as it may and so as it may have and take Plow 140. 59. Co. super Lit. 30â— the most and best effect that may be according to reason as if tenant for life or years and he in remainder or reversion in fee joine in a feoffement by deed this shall enure in the first case as the lease of the tenant for life and the confirmation of him in the remainder or reversion and in the last case as the feoffement of him in the reversion c. and the surrender of the lessee for years to the feoffee and and no forfeiture of the estate in the lessee for life But if in this case the feoffement be by word it seemes it shall enure first as a surrender of the estate of the tenant for life and then the feoffement of him in reversion ut res valeat And if A be tenant for life the remainder to B for life the remainder to D in taile the remainder to the right heirs of B and A and B joine in a feoffement by deed in this case this is the feoffement of A and confirmation of B but a forfeiture of both their estates whereof the tenant in taile may take present advantage If tenant for life grant a rent charge to him in Co. 5 15. Forfeiture reversion in â—ee and he by his deed doth grant this rent over to another and his heires this is a good grant and confirmation also to make the rent passe to the second grantee in fee simple So if a disseisor make a lease for life the remainder to the disseisee and the dissee doth grant the remainder over this is a good grant and confirmation also If A doe bargaine and sell his land to B by indenture Co. super Lit 147. and before inrolment they doe both grant a rent charge to C by deed and after the indenture is inrolled in this case after the inrolment this shall be said to be the grant of B and the confirmation of A and if the deed be not inrolled it shall be said to be the grant of A and confirmation of B. If one make a Charter of feoffement Co. super Lit. 21. of one acre of land to A and his heires and another deed of the same acre to A and the heires of his body and deliver seisin according to the forme and effect of both deeds it seemes this shall enure by moities viz. he shall have an estate taile in the one moity with the fee simple expectant and a fee simple in the other moity If Co. super Lit. 45. two severall tenants of severall lands joine in a lease for years by deed indented these be severall leases and severall confirmations from each of them from whom no interest passeth and doth not worke by way of Estoppell If B tenant for life of C and he in remainder Estoppell or reversion in fee of the same land joine in a lease for life or years by deed indented this shall enure during the life of C as the lease of B and the confirmation of him in reversion or remainder and after the death of C as the lease of him in reversion or remainder and the confirmation of B without any Estoppell If tenant in taile and he in reversion grant a rent charge in fee it shall bee taken the grant of the tenant in taile and the confirmation of him in reversion but when the tenant in taile diâ—th without issue it shall be taken the sole grant of him
construction be reasonable and according to an indifferent and equall understanding and therefore if I grant to another Common in all my Manor this shall be expounded to extend to commonable places only and not in my gardens orchards c. And if I grant to one Eâ—tovers out of my Manor he may not by this cut downe my fruit trees And if one grant me a Barrister a fee pro consilio this shall be taken for counsell in Law only And so in case of a Physitian And if one grant to me to digge in all his lands for Tinne I may not by this grant digge under his house And if one grant me Common for all my beasts this shall be taken for all my commonable beasts and not for goats and the like And if one grant me all his trees in his manor by this I shall not have his apple trees And if one lease to me his house and land to the end that I may make profit thereof in the best manner by this grant I may not prostrate the house or make wast 3. That too much regard be not had to the native and proper Plow 154. 170. 134. Dier 46. Co. super Lit. 223. 146. 217. Co. 9. 48. 10. 143. definition significations and acceptance of words and sentences to pervert the simple intentions of the parties for a manor may passe by the name of a mesuage or a Knights fee if it be used so to be called sic è converso a mesuage by the name of a manor a Remainder may be granted by the name of a Reverter a Reversion by the name of a Remainder for the law is not nice in grants and therefore it doth oftentimes transpose words contrary to their order to bring them to the intention of the parties and it is a rule of law Mala grammatica non vitâ—at cartam neither false Latine nor false English will make a deed void when the intent of the parties doth plainely appeare It is therefore held that two negatives doe not make an affirmative when the apparent intent is contrary And it is another rule of Law Falsa ortographia non vitiat Concessionem 4. That the construction be made upon the entire deed and that Plow 160. 161. one part of it doth help to expound another and that every word if it may be may take effect and none be rejected and that all the parts doe agree together and there be no discordance therein Ex antecedentibus consequentibus est optima interpretatio for Turpis est pars quae cum sâ—â—o toto non convenit Maledicta expositio quae corrumpit textum If a man make a feoffement of all his land in D with Common in omnibus terris suis this Common shall be intended in the lands granted in D only and not elsewhere for it must be understood secundum subjectam materiam 5. That the construction be such as the whole deed and every part of it may take effect and as much effect as may be to that purpose Lit. Sect. 283. Finches Ley 60. Plow 160. 154. for which it is made so as when the deed cannot take effect according to the letter it be construed so as it may take some effect or other Verba debent intelligi cum effectu Et benigne faciendae sunt interpretationes ut res magis valeat quam pereat And therefore if an Annuity be granted pro consilio impendendo or a feoffement made ad erudiendum â—ilium or ad solvendum 10 s. these shall be construed conditionall grants without any words of condition for otherwise the party will be without remedy 6. That all the words of the deed in construction be taken most Co. super Lit. 183. Finche of the Law 6. strongly against him that doth speake them and most in advantage of the other party Verba Cartarum fortius accipiuntur contra proferentem quelibet concessio fortissime contra donatorem interpretanda est And therefore if one seised of land in fee grant it to another and say not for what time this shall be taken an estate for life But this is to be understood with this limitation that no wrong be thereby done for it is a Maxime in Law Quod legis constructio non facit injuriam And therefore if tenant for life grant Forfeiture the land he doth hold for life to another and doth not say for what time this shall be taken an estate for his owne life and not the life of the grantee for then it would be a forfeiture So if one be seised of some lands in fee and possessed of other lands for years all in one parish and he grant all his lands in that parish without naming them in fee simple or for life by this grant shall passe no more but the lands he hath in fee simple So if a man have a house wherewith there hath been Copy hold land and other land usually occupied and he let this house and all his land thereunto belonging in this case and by this demise the Copy hold land doth not Co. super Lit. 112. passe for in both these cases then there would be a forfeiture But otherwise by these words all the lands in both cases would passe 7. That if there be two clauses or parts of the deed repugnant the one to the other the first part shall be received and the latter rejected except there be some speciall reason to the contrary and therefore herein a Deed doth differ from a Will for if there be two 4 El. the Bishop of Ely's câ—se repugnant clauses in a Will the first shall be rejected and the latter received 8. That that which is generally spoken be generally understood unlesse it be qualified by some speciall subsequent words as it may be for if one be seised of a manor wherein there is a Parke and Co. super 〈◊〉 42. he grant the manor with the custody of the Parke by this the Parke will not passe 9. That if the words may have a double intendment and the one standeth with law and the other is against law that it be taken in that sense which is agreeable to law and therefore if tenant in taile make a lease of land to B for term of life and doe not mention for whose life it shall be this shall be taken for the life of the lessor 9 Ed. 4. 4. and not for the life of the lessee as it shall be if such a lease be made by tenant in fee simple 10. That things doubtfully set down be applied to him to whom they doe properly belong As if I S make a feoffment to one of his own name and there is a covenant in the deed that I S shall deliver Co. 9. 48. 10. 143. the deeds this shal be taken of I S the feoffer and not I S the feoffee 11. That such a construction be made of abbreviations as the deed may not lose his force as if
this grant in these words especially if the case be so that the cutting of them will be a wast And yet if the grantor have no peeces or groves of wood in the place nor trees but what are growing in the hedges and grounds in this case it seemes all the trees except the apple trees doe passe but not his hedges and hedgrowes And in case where the trees only doe passe as where the grant is of all a Co. 5. 11. 11. 50. mans trees there shall passe no more of the soile but so much as shall serve for the nutriment of the trees and the owner of the soile shall have the grasse growing thereupon also If a man grant Curia Hill 16 Jac. B. R. Pinchcombs case to another all his salable underwoods within his manor which have been usually sold by the owners of the manor with free entrie egresse and regresse for felling making and carying the same away at all times convenient in this case it seems the soile doth not passe but the wood only And yet if those words with free entrie c. be omitted contra If one devise grant and to terme let a farme with all manner of Dyer 374. Co. 11. 48. timber wood underwood and hedgrowes except the great oakes in such a close to have and to hold the Farme for 21. years in this case albeit there be the word Grant and that the trees be not named againe in the Habendum yet the other trees doe not passe by this grant otherwise then in other leases and if the lessee cut any Timber to sell it is wast in him A Tofte is a place where a mesuage hath stood and by this name Toft in a grant such a thing will passe Bruera is a heath or heathy ground Frassetum is a wood or Bruera Frassetum Alnetum Salicetum Selda Filicetum Fraxinetum Lupulicetum Arundinetum Roncaria Iuncaria Ruscaria Mariscus Mora. Co. super Lit. 4. 5. peece of ground that is woody Alnetum is a word of Elders or place where Elders grow Salicetum a wood of willows or place where willow grow Selda a wood of sallowes willowes or withies or place where such things grow Filicetum is a brakie ground or place where such things grow Fraxinetum a wood of ashes or place where Ashes grow Lupulicetum a hopyard or place where hops doe grow Arundinetum a place where reeds grow Roncaria or Runcaria a place full of bryars or brambles Iuncaria or Ioncaria or Iampna which are all one a place where rushes doe grow Ruscaria a place where kneeholme or butchers pricks or broom doth grow Mariscus a â—enne or marish ground Mora a more barren and unprofitable ground then a marish And by grant of these and such like things or of 20. acres of such ground these particular kinds only or so many acres thereof doe passe Vacaria is a Dairie house Porcaria a Swinestie Bercaria a Tannehouse Vacaria Porcaria Stagnum Gurges and by these names these things will passe By the name of Stagnum Co. super Lit. 5. or Poole or Gurgâ—s a gulfe the water land and fish in the water will passe By the grant of Stadium Ferlingus or Quarentena terre doth Stadium Ferlingus Quarentena terre Selio terrâ— Acre of land Rood of land Co. â—dem passe a â—urlong or furrow long which anciently was the 8th part of a mile By the name of Selio or porcaterre doth passe a ridge of land which is sometimes longer and sometimes shorter By the grant of an acre of land doth passe so much as in an acre by measure in that Country by the Ordinary account and measure of the Country By the grant of a Rood of land doth passe 10. pearches the 4th part of an acre And by the grant of 6. foot in length and two foot in breadth so much only doth passe And by these and such like names land may be granted By the grant of Mineras or Fodinas plumbi c. or Mines of Co. super Lit. 6. Co. 5. 12. Mines Lead c. the land it selfe will passe if livery of seisin be made thereof but otherwise it seemes not and then the grantee hath by the grant a power to digge only granted unto him If one grant to me to digge a Trench in his ground from such a Perk. Sect. 111. Trench place to such a place to convey water by a lead pipe or otherwise hereby also inclusive is granted a liberty at any time after to digge to amend it as occasion shall be If one grant to me to dig turfes in his land or soile and to carry Co. super Lit. 4. Turses them away at my will and pleasure by this is not granted the land it selfe the houses or trees thereupon or mines therein If one grant to another Common for all his beasts in his land Co. super Lit. 4. Perk. Sect. 108 109. Common hereby is not granted Common for Goates Pigges and such like beasts and cattell that are not commonable But if the grant be of common for all manner of beasts contra And if one grant to another Common without number in his land the grantor is not hereby excluded to common there with the grantee And if one grant to me common of pasture for 10. Kine in his Lands in Dale by this grant I shall have common in his commonable grounds and lands only and not in any other lands And if a man grant common of pasture to me for my beasts ubicunque averia sua ierint and he occupie 100. acres of land with his beasts and after he keep no beasts yet by this grant I may keep my beasts in those 100. acres But if hee grant to mee common of pasture for my beasts wheresoever his cattell shall goe c. by this grant I shall have no common but when the grantor doth use his common with his Cattell c. By the grant of Estovers will passe houseboote hayboote and Perk. Sect. 116. plowboote But if a man grant to me Estovers out of his manor Estovers I may not by this grant cut downe any of the fruit trees within his manor If land be granted to me hereby also implicitly is a way thereunto 14 H. 8. 1. granted to me also a Clar. case Trin. 5 Jac. B. R. So that if one have 20. acres of land Way and grant me one acre in the middest of it hereby inclusive there is granted me a way to it b Per. Williams Yelverton Justices Mic. 3 Jac. And yet if a man have two Closes and he use to goe over one of them for his ease to the other Close by a new way and after he grant the further Close cum pertinentiis by this grant the new way doth not passe If a man have a Forest Park Chase Vivarie and Warren in his Co. super Lit. 5. Rice Wisemans case Mic. 9 Jac. owne ground
the first rent it may be otherwise If one be seised of a garden plot in the parish of Sale and grant Adjudg M. 20 Jac. B. R. Burton versus Brown it to B for ten years which being expired he doth grant his garden plot to C for twenty one years and C doth build a house upon part of it and leaveth the other part in a garden plot still and after the twenty one years ended the lessor doth grant to D totam illam peciam fundi sive gardin ' plott ' nuper in tenura de B nunc de C lying in the parish of Sale by this grant the house newly built and the plot of garden doth passe If one grant his Manor of Dale in Dale which in truth doth Bro. Grant 53. 88. Done 26. extend into Dale and Sale in this case no part of the Manor that doth lye in Sale shall passe So if one grant all his tenements in Dale hereby none of the tenements in Sale will passe So if the Manor lie within the parishes of A B and C and the grant is of the Manor of Dale lying within the parishes of A and B by this grant no part of the Manor lying in C will passe But if one seised of the Manors of A and B in the County of C grant thus totumillud Manerium de A B cum pertin ' in Com' C or Co. 1. 46. totum illud Manerium de A cum B in Com' C by these grants in case of a common person both the Manors will passe If one grant all his lands in Dale which hee had of the gift of Bro. Grant Plow I S by this grant nothing will passe but that which hee had of the gift of I S. But if one grant all his lands in Dale called Hodges which he had of the gift of I S by this grant all that which is called Hodges shall passe albeit the grantor had it not of the gift of I S. If one grant all his lands in the occupation of I S by this grant Dockraies case Pasch 12 Jac. doth passe not onely such lands as I S doth occupy by right but also such lands as hee doth occupy by wrong and not onely the lands whereof he hath some estate but also such lands as whereof he hath the pasturage onely If one grant all his lands in B and elsewhere in the County of 2 Jac. Br. S in the tenure of I S by this grant nothing doth passe but that which is the tenure of I S. If one grant his Manor of S nec non omnes mariscos suos de S ac Adjudge Seignior Wentworths case Co. 1. 46. omnia terra tenementa c. in S. alibi dict' Manerio spectan ' by this grant the marsh doth passe though it be no part of the Manor If one grant all his demesne lands of his Manor of Dale c. it seems by this the customary land parcell of the Manor held by copy doe passe If one be seised of tithes which did belong to an Abby part of which were gathered by the Almoner and part not and he grant Adjudge Hil. 2 Jac. B. R. Bakers case omnes omnimodas decimas granorum c. infra dominium praedict ' precinct ' ejusdem in dict' Comit ' Ac omnes alias decimas proficna commoditates c. infra dominium praedict ' dict' Monaster ' c. spectan ' et quae nuper per Eliemozinar ' ejusdem Monasterii collect ' fuer ' by this grant shall passe all the tithes as well those that were collected by the Almoner as those which were not and those words quae per Eliemozinar ' c. shall refer onely to the last and not to both sentences If one grant all his lands in D containing 10 acres whereas in truth his lands there doe contain 20 acres by this grant the whole Dier 80. 20 acres will passe If one grant the Scite of an Abbie omnia terras prat ' pasturas Dier 77. subscript ' cum pertinen ' dict' Monaster ' pertinen ' c. viz. such a thing and such a thing c. by this grant the grantee shall have all the lands belonging to the Monastery and viz. shall relate to Subscript ' onely and not to omnia See more in Grant infra at Num. 4. and in Testament at Numb 8. and in Fine at Numb The Exception is always taken most in favour of the feoffee lessee In the Exception And how that shall be taken 1. In the thing excepted Co. 10. 106. 14 H. 8. 1. 11 52. c. and against the feoffor lessor And yet it is a rule That what will passe by words in a grant will be excepted by the same words in an exception And it is another true rule That when any thing is excepted all things that are depending on it and necessary for the obtaining of it are excepted also as if a lessor except the trees he may bring his chapman to view them if hee desire to sell them and he or the Vendee may cut them and take them away And by such an exception the Lessor will have the boughs fruit hierons and hawks that breed in them c. If a man be seised of a fishing from such a place to such a place Perk. sect 646. Fitz. Assisi 316. and hath a mill upon the water and hee grant totam partem suam piscariae de D quam diu terrae suae se extendunt salvo tamen stagno molendini this exception doth not take away the fishing of the grantee in the mill pond but it shall have relation only to the pool to repair the mill If a man seised of a Manor make a lease of it excepting all Hil. 16 Jac. B. R. per 2. Judges the saleable underwoods now growing or which hereafter shall grow on the premisses which have been usually sold by the owners of the Manor with free entrie egresse and regresse for the felling making and carying away of the same at times convenient in this case the soil is not excepted by reason of the subsequent words If one be seised of a Manor and make a lease of it cum pertin ' una Dier 58. cum columbar ' ac reddit ' tenentium decimis garbarum finibus heriot ' perquisit ' Cur ' aliis omnibus proficuis Advocac ' Ecclesiae Wrece except ' in this the exception doth begin at Advocac ' Ecclesiae and doth except that which followeth and no more If one grant in fee excepting the trees or any other thing to the Dier 264. 2. In the time grantor without saying and to his heires by this exception the thing excepted is severed only for the life of the grantor and then it shall passe with the rest of the things granted But if the thing be excepted indefinitely without saying for the life of the grantor c. nor
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
C this doth not make the estate conditionall Or a lease is made for yeares without impeachment of waste proviso quod non prosternet domus voluntarie in this case howsoever this doth make the priviledge yet doth it not make the estate conditionall Or a lease is made for years rendring rent provided that the lessor shall not distrain for the rent in this case this is a good condition but not annexed to the estate So if in a deed of bargaine and sale of land after the Habendum there are these Dier 318. words viz upon these conditions following viz. that if the vendor pay the vendee twenty pound at Easter and enfeoffe him of a meadow called S before Whitsontide that the bargain shall bee void Provided neverthelesse that the bargainer shall hold the land fortwenty years without the let of the bargainee it seemes this Provided in this case doth not make a condition So if a lease be 27 H. 8. 15. Bâ—o Condition 7. made of a house amongst the covenants these words are inserted Provided also that if the lessor will dwell upon it or keep it in his hands then the lessee his executors and assigns doth covenant upon one yeares warning to remove and give place to the lessor this lease notwithstanding it seemes this is no condition but a covenant onely a Câ—â—ia pasche 14 Jac. Br. in the case of Muddy Co. super Litt. If a lease be made provided that if the rent bee behinde without any more words this is no good condition The word si also doth not always make a condition for sometimes it makes a limitation as when a lease is made for years if I S shall live so long There are other words also that in the Kings grant in last Wils Co. super Litt. 236 237. Doct. Stud. 122. Dier 138. Plow 142. 7 H. 4. 22. Co. super Litt. 204. Co. 10. 42. Dier 318. Doct. Stu. 34. and Testaments and other speciall cases doe make conditions as ea intentione ad effectum propositum intentionem paying and the like So that if one devise his land to I S ea intentione c. that he shall pay to W S tenne pound or paying or so as he pay to W S tenne pound or to sell c. these are good conditions But these words regularly doe not make a condition when they are used in deeds And therefore if one make a feoffment in fee ea intentione ad effectum c. that the feoffee shall doe or not doe such an act these words doe not make the estate conditionall but it is absolute notwithstanding And yet perhaps these words being conjoined with some others may make a condition as if lands be granted ea intentione quod si defecerit c. tunc quod reintrabit or the like Also conditions are sometimes made especially in estates and leases Doct. Stu. â—4 Dier 6. 91. 63. 92. for years without any of these formall words when the apparent intent of the lessor is to make the estate conditionall albeit the words be not used as the words of the lessor but as the words of the lessee or indefinitely of neither And therefore it hath been said That if an Indenture bee made between A and B thus It is agreed and covenanted between the parties aforesaid that B shall have the land for yeares and that hee shall not alien it that this estate is conditionall But it seems this is not law But if this clause be inserted amongst other covenants viz. If the lessee hinder the lessor to fell cut and cary away the trees upon the lands devised that the lessor may reenter and the lease shall be void this is a good condition and so it hath been adjudged in the case of Haward and Fulcher Hil. 3. Car ' B. R. And if a lessee for yeares doe covenant in his lease that if hee his executors or assignes shall alien that it shall be lawfull for the lessor to reenter it seems this is a good condition and not a covenant onely And if a lease for years be made and this clause is inserted in the deed It is agreed between the parties that if the lessee do not pay 10 pound to the lessor at Easter that from thenceforth the lease shall bee void this is a good condition And if a lease bee made with this clause inserted in the deed it is agreed that whosoever shall have the estate or interest that he or they shall find sureties within the year for the rent otherwise the estate shall cease it seems this is a good condition And if a lease for years be made with this clause inserted Dier 66. 65. Curia Mich. 37 38. Eliz. B. R. And that it shall not be lawfull for the lessee to alien without licence of the lessor under pain of forfeiture this is a good condition And if a lease for years be made of a house with this clause inserted in the deed And the lessee shall continually dwell upon Dier 79. 27. Co. super Litt. 204. the same house upon pain of forfeiture of the said terme this is a good condition And if in a lease for years the lessee covenant to Plow 132. pay so much rent and then these words are inserted And if it shall happen the said yearly rent c. then the lessee doth covenant and grant c. that the lease shall be void it seems this is a good condition and so hath it been ever taken as was said by Just Dodridge Hil. 3. Car ' And in all these cases the estate is conditionall But in cases of feoffments in fee gifts in taile and leases for Co. super Litt. 204. Doct. St. 94. Dier 65. 138. life it seemes words penned in this manner will not make conditions but that in these cases the precise and formall words of a condition are requisite And therefore that if a feoffment be made by deed and therein is inserted this clause That it is agreed or that the feoffee doth covenant that if the feoffor doe such an act that the feoffor shall reenter this is no condition nor the estate hereby made conditionall And yet see Perk. Sect. 744. If one make a lease for yeares on condition to pay rent at foure feasts and after there is a clause in the deed And if the rent shall Dier 348. be behinde c. that he shall distrain this clause doth not take away the condition but the same doth continue and the estate is conditionall still See more in the next question In the making of eâ—ates the cause is regarded And in case of Co. super Litt. 204. the grant of lands or tenements causa doth sometimes make a condition as if a woman give lands to a man and his heirs causa man imonii praelocuti in this case if she either mary the man or the man refuse to mary her shee shall have the land again to her and her heirs
if the feoffee shall Co. 5. 96. super Lit. 208. 207. pay to the feoffor tenne pound such a day that then he shall have By and to whom money shall be paid upon a condâ—tion the land to him and his heirs otherwise that the feoffor shall reenter or if it be made on condition that the feoffee shall pay tenne pound to the feoffor such a day and before the day the feoffee sell the land in this case the seller or the buyer either of them may tender the money at the day and this will be a good performance of the condition for he that hath interest in the land on the one side or in the condition as party or privy on the other side may tender and performe the condition to save the estate If lands be mortgaged or which is all one if a feoffement be Lit. Sect. 534. 537. 15 H. 7. 2. Co. super Lit. 206. made of lands on condition that if the mortgagor or feoffor pay tenne pound to the feoffee such a day that then the estate shall be void before the day the mortgagor or feoffor die in this case the heire or executor of the feoffor the Ordinary the Gardian in Chivalry or Socage of the heire of the feoffor or any other by either of their commandement precedent or assent subsequent may pay this money at the day and payment or tender of it by either of them at the day is a good performance of the condition * Lit. Bro. Sect. 12 5. And so also it seemes is the law upon a devise of land to I S paying to Testament I D twenty pound if I S die his heire or executor may pay the twenty pound and this is a good performance of the condition But in these cases if a stranger of his owne head without any such commandement or agreement pay the tenne pound this will be no good performance of the condition And yet perhaps if the party Lit. Sect. 337 that is to pay it be an Ideot the payment or tender by any one in his behalfe shall be a good performance of the condition And if a feoffement be made on condition that if the feoffor pay tenne pound to the feoffee that the estate shal be void no time is set for the payment of this mony the feoffor die before any payment or tender made in this case his heire cannot tender it and so perform the condition If a feoffement be made on condition that if the feoffor and Co. super Lit. 207. Bro. Condition 109. I S pay tenne pound such a day the feoffement to be void and the feoffor die before the day and I S alone pay it this is a good performance of the condition If a feoffement be made on condition that if the feoffor pay to the feoffee or his heires tenne pound such a day and before the day Co. super Lit. 210. 5. 96 Dier 181. 101. Co. 6. 69. Lit. Sect. 339. the feoffee doth grant the land away to another in this case the money may be paid to the feoffee himselfe or if he be dead to his heires and this payment is a good performance of the condition And if the words of the condition be That if he pay to the feoffee his heires or assignes c. in this case payment to either of them is a good performance of the condition so as if in this case the feoffee make a feoffement over it is in the election of the first feoffor to pay the money to the first or second feoffee and if the first feoffee die to pay it to his heire or the second feoffee But payment to an executor or administrator in this case is not a good performance And yet if the words of the condition be that if he pay to the feoffee without words heires executors c. tenne pound such a day in this case the payment may be made to the executor or adminstrator of the feoffee after his death and such a payment is a sufficient performance of the condition And if the words of the condition be that if the feoffor pay to the feoffee his heires executors or administrators c. in this case payment to either of them is a good performance of the condition But payment to an assignee in this case is not good And if the words be that if he pay to the feoffee and his heires c. in this case payment to his executors or to his assignes is not a good performance of the condition So that in all these cases it seemes for the person to whom payment is to be made the words of the condition are precisely to be pursued If a feoffement be made on condition that if the feoffor shall To tender money Pas 9 Jac. 5. Sir Richard Lees case tender twelve pence to the feoffee such a day the feoffement to be void and afterwards the feoffee is disseised of the land and after the feoffor doth tender the twelve pence to the feoffee at the day this is a good performance of the condition If a feoffement be made to two men on condition that they To reinfeoffe shall reinfeoffee the feoffor or make a lease to him by a day and before Dier 69. 41 E. 3. 25. the day one of them die and the survivor doth reinfeoffe or make the lease this is a good performance of the condition And so also it seemes the law is if both the feoffees be living for by his owne acceptance it seemes he hath dispensed with the condition and so cannot enter for the breach of it If a feoffement be made on condition that the feoffee shall infeoffe Plow 23. 3 H. 7. 4. 21 H. 6. 10 the feoffor of the Manor of Dale by such a time and before the time appointed the feoffee doth grant a rent charge out of the Manor to a stranger and then at the time appointed makes a feoffment of the Manor according to the condition in this case this is a good performance of the condition But if in this case the feoffee before the time appointed grant away to a stranger twenty acres parcell of the Manor and then doth make a feoffement of the Manor according to the condition this is no good performance of the condition And if a feoffement be made on condition that the feoffees or lessees in trust of such land shall grant an Annuity out of it and some of them only doe grant this Annuity this is no good performance of the condition If there be a feoffement made upon condition that the feoffee 44 E. 3. 22. To make a lease shall make a lease of land to the feoffor for life the remainder to I S in fee and the feoffee make a lease to the feoffor for life and after by another deed doth grant the reversion to I S this is a good performance of the condition If a feoffment be made upon condition
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
yet it seems it doth not restrain the power that the lessee hath by the law to take these things without assignement But if the lessee doe covenant that he will not cut any timber or fuell without the leave or without the assignement of the lessor this is a good covenant and doth restrain him for in this and such like cases the rules is Modus conventio vincunt legem If an obligee covenant with the obligor that he will not sue him Mich. 36 37 Eliz. Co. B. Adjudge Deaux versus Jefferies 21 H. 7. 23. Release upon the obligation untill Easter following this is a good covenant but no release or suspension of the debt * Perk. Sect. 69. If there be Lord and tenant of three acres of land white acre and two others and the Lord grant to the tenant by deed that he will not distrain in white acre for his rent or services this is a good covenant but doth not determine the Seigniory If one man grant a mill within his Manor covenant for him Fitz. Covenant 5. his heirs that there shall be no other mill set up within the Manor it seems this is a good covenant If one make a lease wherein are divers covenants to bee performed Fitz. Covenant 3. on the part of the lessee and after the lessee doth covenant that if any of the covenants be broken that the lessor shall enter upon the land demised and hold it untill the lessee make him amends for the damage done by the breach of the covenant it seems this is a good covenant and that the lessor may take advantage thereof accordingly If a man seised of land in fee covenant to stand seised of it to uses Plow 307 308. 21 H. 7. 18. 27 H. 8. 16. Finchesley 49. and no estate doth rise by the covenant yet this may bee good by way of covenant and give remedy to the covenantee in an action of covenant But with this difference If the covenant be future as where one doth covenant with another that in consideration of a mariage his lands shall descend remain or revert to his sonne and heire apparent and to the heires of his body on the body of his wife in this case the covenantee may have a writ of Covenant upon the covenant For if a covenant be present as that a man and his heirs shall from henceforth stand and bee seised to such and such uses and the uses will not arise by the Law in the case in this case no action of covenant will lie upon this covenant for this action will never lie upon any covenant but upon such a covenant as is either to doe a thing hereafter or that a thing is or hath heretofore beene done and not when it is for a thing present as when A doth covenant with B that his blacke horse shall be for ever after the horse of B this is no good covenant to give the horse to B or to give him an action of covenant for him but A may keep him still notwithstanding If one mortgage upon condition to reenter upon payment of an Agree 8. Car. hundred pound at a day and the mortgagee doth covenant that he will not take the profits of the land untill default of payment this is a good covenant and the mortgagee therefore may not meddle with the profits untill the day of payment come If one make a lease for years of land by the words Demise or 5. What shall be said a good covenant in Law upon which an action of covenant may be had And what not Co. 4. 80. 5. 17. Trin. 3 Jac. B. R. Stiles case Pas 7 Jac. B. R. Winsecombes case Grant and there is not contained in the lease any expresse covenant for the quiet enjoying of the land in this case the Law doth supply a covenant for the quiet enjoying of it against the lessor and all that come in under him by title during the Term and upon this the lessee his executors administrators or assignes may have an action of covenant if he be disturbed But where there is an expresse covenant in the deed for the quiet enjoying of the land there the Law will not make this implied covenant Expressum facit cessare tacitum And therefore herein this is not like to the case Warranty where a man doth make a lease for life by the words of Dedi concessi or make a lease for life by other words reserving rent in which cases the law doth create a warranty against all men during the life of the lessor for if in these cases there be an expresse warranty in the deed yet this doth not take away nor qualifie the implied warranty but the Lessee may make use of which of them hee will if he bee ousted or evicted by one that hath an elder title A covenat in particular being one part of a deed is subject Plow 287. See in Exposition of Deeds before in toto 6. How a covenant in deed or law shall be taken and expounded And how it shall be performed to the generall rules of exposition of all parts of deeds in generall as to bee alwayes taken most strongly against the covenantor and most in advantage of the covenantee 2. To be taken according to the intent of the parties 3. Vt res magis valeat c. 4. When no time is limited for the doing of the thing it shall bee done in reasonable time and the like In cases where the covenantees have or are to have several interests Ioint and severall or estates there when the covenant is made to and with the Co. 5. 19. Dier 338. Bro. Covenant 49. covenantees cum quolibet eorum aut alterâ— eorum in this case these words make the covenant severall as if one by Indenture demise black acre to A and white acre to B and green acre to C and covenant with them and either of them or covenant with them and every of them that he is lawfull owner of all these acres in this case the covenant is severall but if he demise to them the three acres together and covenant in this manner the covenant is joint and not severall And if A and B doe covenant jointly and severally in this case the covenant may bee joint or severall and the covenantors may be sued either the one way or the other at the election of the covenantee If one make a lease of land to another and covenant that hee F. N. B. 145. 1. Dier 328. 26 H. 8. 3. For quiet enjoying shall quietly enjoy it without the let of any person whatsoever or without the let of any person whatsoever claiming by or under the lessor in both these cases the covenant shall be taken to extend Mich. 7 Jac. B. R. accord in Gambles case to such persons as have title or claime some estate under the lessor for if in the first case any person
for quiet enjoying Co. 4. 80. the implyed covenant is gone Expressum facit cessare tacitum By a release of all covenants from the covenantee the covenant 18 E. 4. 8. Release is discharged so as the release be by deed for a covenant by deed cannot be discharged by word And therefore if A by deed covenant with B to build a house by a day and B doth wish him to let it alone this is no discharge of the covenant If the lessor accept the rent of the lessee or his assignee after Pasc 6. Car. B. R. Adjudg Bachelors case a covenant broken this doth not discharge the breach of the covenant but the lessor may sue for it notwithstanding And so we come to a Warranty being a speciall kind of covenant and therefore next in order to be spoken to CHAP. VIII Of a Warranty A Warranty is a covenant reall annexed to lands or tenements Finch ley 39. Co. super Lit. 365. 1. Warranty Quid. whereby a man and his heires are bound to warrant the same Or it is where a man is bound to warrant the land or hereditament that another hath And he that doth make this warranty is called the warrantor and he to whom it is made Warrantor Warrantee the warrantee There are two kind of warranties 1. A warranty in deed 2. Quotuplex Co. 1. 2. super Lit. 365. 4. 81. or an expresse warranty which is when the same is expressed i. when a fine or feoffement by deed is levied or made in fee or a lease for life is made by deed comprehending warranty or which hath an expresse clause of warranty contained in it as when a conusor feoffor or lessor doth covenant to warrant the land to the conusee feoffee or lessee whch is in these words Ego I S heredes mei warrantizabimus imperpetuum defendemus W S heredibus suis tenementa predicta contra omnes homines imperpetuum And by the Statute of Bigamis Dedi is made an expresse warranty during the life of feoffor 2. A warranty in law or an implied warranty which is when it is not expressed by the party but tacite made and implied by the law whereof see divers Examples infra The warranty in deed also is either lineall which Co. super 383 384. 370. 365. is thus described A covenant reall annexed to the land by him which either was owner or might have inherited the land and from whom his heire lineall or collaterall might by possibility have claimed the land as heire from him that made the warranty Or else it is collaterall which is thus described A warranty made by him that had no right or possibility of right to the land and is collaterall to the title of the land Also there is a warranty which doth commence by disseisin or wrong of all which â—ee divers examples afterwards And note that all these things here are to be applied to warranties of lands and concerning freeholds and inheritances for there is a warranty of goods and cattells in contracts of which we treat not here The fruit and effect of this warranty in deed is that it doth alwaies Co. super Lit. 265. 372. 365. 384. Co. 4. 121. 10. 97. conclude and barre the warrantor himselfe of the land so 3. The fruit and effect of it and what use may be made of it warranted for ever so that all his present and future rights that he hath or may have therein are hereby extinct And therefore if the father be dissâ—ised and the sonne in his life time release all his right to the land to the disseisor and make a warranty of the land in the deed and then the father dieth and the right of the land descendeth to the sonne in this case albeit the release doth not barre the sonne yet the warranty doth barre him And for the most part also it doth conclude and barre the heires of him that made the warranty to whom the same warranty doth descend to demand the same land against the warranty for if it be a lineall warranty it is a barre of an estate in fee simple without any Assets i. without any other land descended to him in fee simple from the same Ancestor that made the warranty And with assets it is a barre of an estate in taile And if it be a collaterall warranty it is with or without assets a barre of an estate in fee simple or â—ee taile and all possibility of right thereunto and yet so as it doth not passe any estate or right but only bind the right so long as the warranty is in force for if the warranty be avoided the right may be revived But neither the lineall or collaterall warranty can enlarge an estate And therefore if a lessor by deed release to his lessee for Co. super Lit. 389. c. life and warrant the land to him and his heires this doth not make his estate greater neither will it barre titles of entry or action in cases of Mortmaine consent to a Ravishor mortgage or dower And therefore if an Ancestor of the Lord hath title to enter upon an Alienation in Mortmaine and he release or make a feoffement with warranty this warranty will neither barre him nor his heire So if a collaterall Ancestor will make a warranty which doth after descend upon one that hath title of entry upon a condition broken this will not barre his entry c. neither will it barre any right that shall commence after the warranty made And the warranty that doth commence by disseisin doth not bind or barre any estate with or without Assets And in cases where the lineall or collaterall warranty is a barre Co. super Lit. 265. Co. 10. 98 99. Dier 42. Co. super Lit. 101. there if the party be impleaded by him or his heires that made the warranty the party impleaded that is tenant of the land may plead and shew forth this warranty against him and de mand Judgement whether he contrary to his owne warranty shall be suffered or received to demand the thing warranted and this in pleading is called a Rebutter And if he be impleaded or â—ued by another for Rebutâ—er Quid. the land then he to whom the warranty is made or his heires may vouch i. call in the warrantor or his heires to warrant the land Voucher Quid. And this is an interpleader in the nature of an action brought by the warrantor against the warrantee wherein he that doth vouch called the voucher is demandant and he that is vouched called Voucher Vouchee the vouchee is made tenant or defendant to the action and the vouchor is as it were out of the suite And this second tenant the vouchee is called the tenant by the warranty And hereupon shall Tenant by the warranty Quid. Summons ad warrantizandum Quid. issue forth to the Sheriffe a writ to summon the vouchee to appeare called a
Summons ad warrantizandum And if the vouchee appeare he must plead to the vouchor and if he shew cause why he should not warrant that must be tried and this shewing of cause is called a Counterplea to the voucher but if he plead in a voidance of the warranty it is called a Counterplea to the warranty And Counterplea to the voucher Quid. Connterplea to the warranty Quid. if he cannot gainesay the warranty the stranger shall recover the land demanded against the vouchor and he shall recover as much other land against the vouchee of the lands he hath or had at the time of the voucher And this recovery of other land is called a recovery in value And if the vouchee hath at the time of the voucher and recovery no lands descended to him to answer the warranty Recovery in value Quid. but hath afterwards land happening to him by descent from that Ancestor then he may have a resummons and recover the land that doth after happen But if the Sheriffe returne upon the summons that vouchee is summoned he doth make default then he shall have a Magnum cape ad valentiam when if he make default againe the Judgement shall be given against the vouchor and he shall recover over in value against the vouchee and if the vouchee appeare and then make default the vouchor shall have a parvum cape ad valentiam and then if he make default Judgement shall be given as before But if the Sheriffe returne upon the summons he hath nothing whereby he may be summoned then may the vouchor have a writ called Sequatur sub suo periculo whereupon shall goe an Alias and Pluries and if the like returne be made the Sequatur sub suâ— periculo Quid. demandant shall have Judgement against the first tenant but he cannot recover in value against the vouchee And if the case be so the vouchee had a warranty from some other for the land he may dearaigne i. maintaine the warranty over and shall recover Dearaignment del Garranty Quid. in value over also against his vouchor in the same manner as before Or the warrantee to whom the warranty is made or his heires may at any time before they be impleaded for the land if they will F. N. B. 134. Co super Lit. 102. bring a Warantia Chartae upon the warranty in the deed against â—arrantia â—hartae Quid. the warrantor or his heires and hereby all the land the heire of the warrantor hath by descent from the Ancestor that made the warranty at the time of this writ brought shall be bound and charged with the warranty into whose hands soever it goe afterwards so that if the land warranted be after recovered from the warrantee he shall recover so much land over againe of the other land of the heire of the warrantor or of the warrantor himselfe if he be living And albeit the warrantee or his heires doe recover in this writ yet he may after upon occasion vouch the warrantor or his heires notwithstanding And herein observe it is good policy if a man suspect any thing to bring this writ of Warrantia Chartae betimes because it binds all the land of the warrantor from the time of the writ brought and not any of his other lands he had before that time that are now aliened The words Dedi concessi or Dedi only in a feossement doe Co super Lit. 383 384. Co. 4. 81. 4. What words and clauses in a deed will make a warranty Or not make a warranty when an estate of franketenement or inheritance doth passe by the deed But the word Concessi only or Demisi concessi doe not make such a warranty And by force of the Statute of Bigamis chap. 6. Dedi is made an expresse warranty during the life of the feoffor The word Warrantizo or warrant is the only apt and effectuall Lit. Sect. 733. Co. 5. 17 18. word to make an expresse warranty or a warranty in deed and therefore this word only is used in fines And the words Defendo or Acquieto albeit they be commonly used in deeds yet of themselves without the other will not make a warranty If a man by deed doth grant to warrant land to I S and his Dier 42. Co. super Lit. 383. heires and the warrantor doth not bind his heires to the warranty or doth not warrant to I S and his heires but to I S only or doth warrant to I S and his assignes and not to I S and his heires or doth bind himselfe and his heires to warrant the land but doth not say how long nor against whom these are good warranties but how they shall be taken see afterwards A warranty in deed may be annexed to estates of inheritance Co. super Lit. 366. 389. or freehold and that not only of corporeall things which passe 5. To what things a warranty may be annexed and extended And to what not And how by livery as houses lands and the like but also of incorporeall things which lie in grant as Advowsons Rents Commons Estovers and the like which issue out of lands or tenements and that not only to inheritances in esse but also to such as are newly created as a man some say may grant a rent c. de novo out of land for life in taile or in fee with warranty So a warranty in law may extend to a rent newly created and therefore if such a rent be granted in exchange for an acre of land this Exchange and warranty thereunto annexed is good But a warranty may not be annexed to an estate or lease for years albeit it be a lease of one thousand years nor to any other chattell and therefore in all actions the which lessâ—e for years may have as trespasse c. a warranty cannot be pleaded in barre A warranty may be made upon any kind of conveyance as upon Co. super Litt. 372. 385. Litt. Sect. 738. 745 706. fines feoffements gifts c. also a warranty may be made by and upon releases and confirmations made to the tenant of the land albeit he that makes the release or confirmation hath no right to the land c. And yet some say that by a release or confirmation where there is no estate created or transmutation of the possession a warranty cannot be made to the assignee But if A be seised of land in fee and B doth release to him or doth confirm his estate in fee with warranty to him his heirs and assignes in this case all men agree this warranty to be good and so also it seems it is in the case last before and that both the party himself and the assignee may vouch A warranty in Law may be good in his creation albeit it be made 6. What shall be a good warranty in Law And how it shall barre and bind Co. super Litt. 384. 386. without deed for if
assets But if hee that doth so alien c. bee tenant by the courtesie this is no barre to the heire without assets in fee simple from the tenant by the curtesie and then it is a barre for so much And if the heire for want of this assets at the time doth recover the land from his mother and after assets doth descend from the father in this case the tenant shall recover the same land of the mother againe And if she that doth so alien c. to be tenant for Stat. 11 H. 7. chap. 20. Litt. Sect. 727. Co. super Litt. 365. life of the inheritance or purchase of her deceased husband or given unto her by any of the Auncestors of her husband or by any other person seised to the use of her husband or of any of his Auncestors in this case her alienation release or confirmation with warrantie shall not binde the heire whether hee have assets or not But if a man convey lands to the use of himselfe Co. 3. 58. B his wife and the heirs of his body and they have issue C and the father dieth and C disseiseth his mother or getteth a feoffement from a disseisor and then suffereth a recovery with a single voucher and after the wife doth release to the recoverer with warrantie in this case the warrantie is a barre to the issue and not void by the Statute of 11 H. 7. If the husband that is seised of lands in the right of his wife levy Co. super Litt. 366. 381. Stat. Glouc. ch 6. Litt. Sect. 332. a fine or maketh a feoffment in fee with warranty and the wife dieth and then the husband dieth this warranty shall not binde the heire of the wife without assets of other land in fee simple from the father albeit he be not tenant by the courtesie but it is before her death that he doth make the estate and the warranty But a Fine levied by the husband and wife in this case is a good bar to the heir If tenant in taile that is in of another estate i. either by disseisin Co. 3. 62. 22 Ass pl. 37. 29 Ass pl. 34. Fine or by the feoffment of a disseisor doth suffer a common recovery and a collaterall Auncestor of the tenant in taile doth release with warrantie to the recoverer and after the recoverer doth make a feoffment to uses executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case albeit the estate of the land be transferred in the post before the descent of the warrantie yet it shall binde So if hee to whom the warrantie is made suffer a common recovery and after the Auncestor dieth But if tenant in dower enfeoffe a villain with warranty and the Lord of the villain enter into the land before the descent of the warrantie and after the woman dieth this warrantie shall not binde the right of the heir So if a collaterall warrantie be made to a bastard and his heirs and living the Auncestor the Bastard dieth without issue and the Lord by escheat doth enter and after the Auncestor dieth this warrantie shall not binde A collaterall warrantie may descend upon an issue in taile before the right descend and yet be good with this difference that Litt. Sect. 7 H. Co. super Litt. 388 the right be in esse in some of the Auncestors of the heir at the time of the descent of the warranty as if tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile releaseth all his right c. to the disseisor with warrantie and dieth without issue and the tenant in taile hath issue and dieth in this case the issue is barred But otherwise it is where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warrantie as if Lord and tenant be and the renant make a feoffment in fee with warrantie and after the feoffee doth purchase the Seigniory and after the tenant doth cease in this case the Lord shall have a Cessavit for a warrantie doth never bar any right that doth commence after the warrantie If the case be so that if no such warranty had beene made by Litt. Sect. 703. 711. 8. What shall be said a lineall warranty And how such a warranty shall barre the father or other Auncestor the right of the lands or tenements so warranted had or might have descended or come from the same Auncestor and that from and by him that made the same warranty such a warrantie is a lineall warrantie As if a man bee seised in fee of land and make a feoffment of it to another and binde him and his heires to warrant the land and hath issue and die and the warrantie doth descend upon the issue this is a lineall warrantie for that if none such had been Co. super Litt. 371. the right of the land had descended to him as heire to his father and he must have made his descent by him And if there be grandfather father and son and the grandfather be disseised and the father release to the disseisor being in possession with warranty c. and dieth and after the grandfather dieth this is a lineall warrantie to the son and albeit in this case the warrantie descend before the right yet it is a good bar And if there be two brothers Litt. Sect. 707. and the father is disseised and the eldest brother doth release with warranty and die without issue and after the father dieth and the warrantie doth descend to the younger sonne this is a lineall warrantie to him And if lands be given to A for life Co. 1. 66 67. the remainder to his right heires and hee doth make a feoffment with warrantie and die this is but a lineall warrantie And if two parcenours be and the eldest enter into all the land to her owne use and then doth make a feoffment with warrantie and dieth without issue this as to her owne part is a lineall warrantie but as to her sisters part is a collaterall warrantie And in every Co. 8. 52. New Terms of the Law tit Warrantie case where one doth demand an estate taile if any Auncestor of the issue in taile whether he had possession of the land or not hath made a warrantie and if the issue that were to bring a writ of Formedon may or might have by possibility by some matter that might have been done conveyed to himself a title by â—orce of the gift by him that made the warrantie this is a lineall warrantie As if a man be seised of land of an estate taile to him and the heirs of his body begotten and make a feoffment of it and bind him and his heirs to warrant it and hath issue and dieth this warrantie descending upon the issue is a lineall warrantie And if lands Litt.
then the donee dieth without issue this warranty doth begin by disseisin So if the father and son and a third person be jointenants in fee and the father maketh a feoffment in fee of the whole with warranty and dieth and then the sonne doeth in this case as to the part of the third person and to the part of the sonne the warranty shall be said to beginne by disseisin But releases at this day by a tenant for life to a disseisor or any other without covin albeit it bee to the intent to barre him in reversion shall barre him for intent without covin and disseisin shall not avoid a warranty And examples of warranties that doe begin by disseisin have these qualities 1. That for the most part the disseisin is done immediately to the heire that is bound by the warranty 2. The warranty and disseisin are simul and semel And yet if a man disseise another with intent to make a feoffment with warranty albeit the feoffement be made twenty years after the disseisin yet it shall be said to bee a warranty that doth beginne by disseisin But in all these cases of warranties that doe beginne by disseisin this is the rule That they are altogether void and without force as to all others but to the parties themselves that doe make them and therefore they do not barre or binde any others at all of their right that have any And the same Law is of a warranty that doth begin by abatement or intrusion that is when an abatement or intrusion is made of purpose to make a feoffement in fee with warranty And so also it is where the tenant dieth without heir and an Auncestor of the Lord doth enter before the entry of the Lord and make a feoffement in fee with warranty in this case this shall not binde the Lord because it doth begin by wrong All warranties in generall are favourably taken in Law because 11. How a warranty shall be taken they are part of mens assurances Every warranty in Law is taken for and hath the effect of a lineall warranty The warrnaty that is made by Dedi Concessi or Dedi only in a Co. 4. 81. 5. 17. feoffement is and shall be taken for a generall warranty against all persons to the feoffee and his heires during the life of the feoffor onely albeit there be no service reserved by the deed nor heir named but it shall not extend to the assignee of the feoffee And if there be any service reserved on the deed then it shall extend against the heir also The warranty in Law that is made upon a gift in tail or lease for Co. 4. 81. super Litt. 384. life rendring rent is a speciall warranty against the donor and lessor and his heirs and assignes so that the donee or lessee may vouch the grantor after the grant of the reversion or the grantee of the reversion after the atturnment of the tenant at his election The warranty in Law that is made upon an Exchange is special in Co. 4. 121. super Litt. 384. divers respects for it extendeth reciprocally to and against the heires of both parties and it doth extend only to the same land that is given in exchange and none other and no use can be made of it but by voucher for no Warrantia Cartae doth lie upon it So also the warranty that is made in dower is taken to extend only to the other two parts of the land The warranty in Law that is made upon the tenure of Homage Co. super Litt. 384. Auncestrel extendeth reciprocally to the heires and against the heires of both parties If a feoffement be made of land to three jointly and the feoffors Co. 5. 59. doe warrant the land to the feoffees and every of them this warranty shall be joint and not severall But if the estate be severall as if one grant white acre to A and blacke acre to B and grant to warrant the land to them and either of them in this case the warranty shall be severall If a man of full age and an infant join in a feoffement with warranty Co. super Litt. 367. this shall be taken for a good warranty as to the whole for him that is of full age and void for the infant and not void in part and good in part Co. super Litt. 386. If a man make a feoffment in fee bind his heirs but not himself to warranty in this case and by this his heirs shall not be bound and Co. super Litt. 47. 385. Dier 42. Kelw. 108. Co. 6. 69. a man binde himselfe to warrant and not his heirs by the feoffement in this case the feoffor himselfe is bound to the warranty but not his heirs for it is a maxime of Law That the heir shall never be bound to any expresse warranty but where the Auncestour was bound by the same warranty If one make a feoffment to B and his heirs and thereby doth grant to warrant the land and doth not say to B and his heirs yet this warranty shall be taken to extend to them But if the feoffor doth grant to warrant the land to B and doth not say to his heires this shall not extend to his heirs And if in this case the warranty be to B and his assignes it shall not extend to his heirs neither shall the assignees take advantage of it after the death of B. And if the warranty be to B and his heirs and not to his assignes also this shall not extend to his assignes If one make a feoffment to A habendum to him and his heirs and binde himselfe and his heirs to warrant the land in forma praedicta in this case the warranty shall extend to the feoffee his heirs If one grant to warrant land to another and his heirs and doth Co. 1. 1. not say against what persons this shall be taken for a generall warranty against all men If one make an estate and grant to warrant the land but doth not say how long this shall bee taken for as long as the estate to which the warranty is knit doth last If a warranty be made against any speciall persons it shall extend Dier 328. to them and no further and it shall extend in all cases for and to all titles and entries upon title and it shall not in any such cases extend to tortious and unlawfull entries If a man bee seised of a rent-seck issuing out of the Manor of Co. super Litt. 366. Dale and hee take a wife and the husband doth release to the terre-tenant and warranteth tenementa praedicta and dieth this warranty shall extend to the rent as well as to the land and therefore if the wife sue for her thirds of the rent the terre-tenant may vouch the heire And regularly the warranty doth extend to all Co. super Litt. 388 389. things issuing out of the land viz. to
Co. super Lit. 391. attained of treason or felony hereby the warranty is gone and albeit he doe afterwards obtaine his Pardon yet the warranty is not revived If a feoffment with warranty be made to two or more and they Co. 6. 12. being Jointenants doe after by deed make Partition by this the warranty is determined So if two Jointenants be and one of them disseise the other and he that is disseised doth recover in an assise and hath Judgement to hold in severally hereby the warranty is determined * Adjudge Hil. 22 Jac. B. R. Eustace Sholes case So if A and B be Jointenants of white acre for life and A by fine doth grant to B totum quicquid habet in tenemeutis hereby the warranty is gone But if a Partition be made by Judgement upon a writ by force of the Statute of 13 H. 8. this doth not defeat the warranty fallen to them but it shall be divided between them and they shall all of them take advantage of it If one enfeoffe three with warranty to them and their heires Co. super Lit. 385. and one of them release to one of the other two hereby the warranty is gone for that part But if one of them release to the other two in this case the warranty is not gone but doth continue and they may vouch upon it If one enfeoffe two men and their heires and one of them doth Co. super Lit. 385. make a feoffment in fee hereby the warranty is not determined but the other may take advantage of it notwithstanding If the party that hath the warranty or the estate to which the Co. super Lit. 393. 392. Lit. Sect. 748. Release warranty is annexed release to him that is bound to warrant all warranties or all covenants reall or all demands by either of these releases the warranty is gone So also if by a defeasance made Deseasance between the parties it be agreed the warranty shall be void by this defeasance the warranty may be avoided also Or if it be so agreed that the warrantee or his heires c. shall not vouch or have a Warrantia cartae by this the warranty is avoided in part If tenant in taile doth enfeoffe his Uncle which doth enfeoffe another Co. super Lit. 391. in â—ee with warranty if in this case the feoffee release the warranty to his Uncle hereby the warranty is extinct But if a gift in taile be made with warranty in this case a release made by the tenant in taile of this warranty will not extinguish it If the parties between whom the warranty is intermary hereby Co. super Lit. 390. the warranty is suspended during the coverture in some cases If tenant in taile doth make a feoffment in fee with warranty Co. super Lit. 330. and disseiseth the discontinuee and dieth seised this doth suspend the warranty If two make a feoffment in fee and warrant the land to the Co. super Lit. 393. feoffee and his heires and the feoffee doth release the warranty to one of the feoffors this doth not determine the warranty of the other as to the moity So if one doth infeoffe two with warranty and the one of them doth release the warranty this doth not extinguish the warranty for the other moity but it doth continue still A warranty also may lose his force by taking benefit or making use thereof for after a man hath once taken advantage thereof in some cases he can make no further use of it of which read Co. super Lit. 393. And now having done with Deeds in generall and some of the parts thereof in speciall we are in order to come to some speciall kinds of deeds wherein we will first begin with a deed of Feoffment CHAP. IX Of a Feoffment FEoffamentum i. Donatio feodi strictly and properly is the gift 1. Feoffment Quid. New termes of the law Co. super Lit. 9. Lit. Sect. 57. or grant of any honors castles manors messuages lands houses or other corporall immovable things of like nature which be hereditable to another in fee simple i. to him and his heirs for ever by the delivery of seisin and possession of the things given And from hence comes the word Infeoffe for by this word and the Infeoffe words Give and Grant as the most apt words for that purpose is this kind of conveyance most commonly made Hence also it is that he that makes this feoffment is called the feoffor and he to whom it is made the feoffee Also it is sometimes but improperly Feoffor Feoffee called a feoffment when an estate of freehold only doth passe This kind of conveyance albeit it may be made in most cases by 2. Quotuplex See West Sym. 1. part Sect. 235. Co. super Lit. 6. word without any writing â—et it is most commonly done by writing and this writing is then called a Deed or Charter of feoffment but hence is the division of a feoffment by word or a feoffment by writing The ancient formes and examples of these deeds are very briefe and and yet they had these parts contained in them 1. The Premisses 2. The Habendum 3. The Tenendum 4. The Reddendum 5. The Clause of warranty 6 The In cujus rei testimonium 7. The Date 8. The clause of Hiis testibus Haec fuit candida illius aetatis â—ides simplicitas quae paâ—câ—lis lineis omnia fidei firmament a posueruut * Co. super Lit. 49. 9. Co. 1. 111 112. Plow 554. 9 H. 7. 24. 39 H. 6. 43. Co super Lit. 237. Perk. Sâ—ct 210. 24 E. 3. 70. Co. 1. 121. Co. 6. 70. Bro. scire facias 88. Plow 423 424. And this manner of conveyance as it is the most ancient kind 3. The nature and operation of it of conveyance so is it the best and most excellent of all others and in some respects doth excell the conveyance by â—ine or recovery for it is of that nature and efficacy by reason also of the livery of Seisin evermore inseparably incident to it that it cleereth all disseisins abatements intrusions and other wrongfull and defeasible titles and reduceth the estate cleerly to the feoffee when the entry of the feoffor is lawfull which neither fine recovery nor bargaine and sale by deed indented and inrolled will doe when the feoffor is out of possession And it passeth the present estate of the feoffor and not only so but barreth and excludeth him of all present and future right and possibility of right to the thing which is so conveyed insomuch that if one have divers estates all of them passe by his feoffment and if he have any interest rent common or the like into or out of the land it is extinguished and gone by the feoffment And further it barreth the feoffor of all collaterall benefits touching the land as condition power of revocation writs of error attaint and the like
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.
minde hath been divided amongst divers persons and each person hath a certaine number of acres but in no certaine place the custome being to allot each person his number one yeare in one place and another in another alternis vicibus in this case either of these persons may make a feoffment of his part by the name of so many acres lying in such a meadow without any bounding or describing of it If parceners have made partition of their land that the one Co. super Lit. 4. 48. shall have it from Easter to Lammas to her and her heires and the other shall have it from Lammas to Easter to her and her heires or that the one shall have it one yeare and the other the other yeare alternis vicibus Or if they have two Manors descended and they agree that the one shall have the one Manor one yeare and the other the other Manor the same year and the next year that he that had the one shall have the other alternis vicibus for ever in these cases the parceners may either of them make a feoffment of this land or Manor If there be any lease for life or years in being of that land or Co 2. 32. Dier 340. 18 Perk. Sect. 221. 21 H. 7. 7. Perk. Sect. 220. 46 E. 3. 2 5. Bro. Feoffments de terre 68. Co. super Lit. 48. 49. 52. thing whereof the feoffment is made and he that hath this lease for 3. In respect of the presence or possession of other persons on the land at the time of the feoffment made life or years or in his absence his bailife or servant keeping in the house or land whereof the feoffment is to be made doth give leave and agree that livery of seisin shall be given upon the house or land by the lessor himselfe or by his atturny and for this cause doth leave the possession of the house or land and thereupon livery of seisin is made this is a good feoffment and a good livery of seisin and yet it doth not prejudice the estate of the lessee And if the lessor make a feoffment of the land to a stranger by assent or licence of the lessee the lessee then being on the laÌ„d this is a good feoffment In like manner as it is where the lessor doth enfeoffe a stranger to which the termor doth agree saving his terme And if the lessor make such an entry upon the lessee for life or years as to put him out of possession of the house or land and then he doth make a feoffment and livery of seisin of it or if the lessor in the absence of the lessee his wife servants and children enter upon the thing in lease and make a feoffment and livery of seisin thereof in these cases there is a good feoffment to passe the reversion for in these cases when the lessee for life or years doth reenter the law doth adjudge this to be an atturnement in law But if a lessor will enter upon his lessee and against his will the lessee being still in possession of the land Atturnement make a feoffment of the land and give livery this is void and can never take effect as a feoffment And therefore if there be a conveyance made of a house and land thereunto belonging in lease and the feoffor come into part of the land without the leave of the lessee and there make livery of seisin of that part in the name of all the rest of the land the lessee himselfe his wife child or servant being then upon any other part of the land and especially if they be in the house this is no good feoffment for any part of the land but void for the whole * Veynors case Triâ— 7 Jac. B. R. And yet if the lessee for years make an under-lease of part of the land to another and the feoffor doth make a feoffment of this part and give livery of seisin upon this part in this case the possession of the first lessee in the residue will not hurt the feoffment or livery for this part but it is a good feoffment Also if the lessee give the lessor leave to make livery and depart and Co. super Lit. 48. leave a servant of the lessee upon the land in this case it seemes his presence upon the land whiles the livery is made will not hurt And so if the lessee leave the possâ—ssion and leave nothing upon the land but his cattell they will not keep his possession nor prejudice the livery of seisin If a lease be made of one acre to one and another acre to another 21 H. 7. 7. Dier 18. and the lessor make a feoffment of both these acres and make livery in one of them in the name of both acres this is no good feoffment for the other acre for by this livery he is not put out of possession of that acre So if one make a feoffment of two Manors the one in possession and the other in lease and give livery of seisin of the Manor in possession in the name of both the Manors this is no good feoffment for the other Manor neither will it passe by this feoffment So if one make a lease for years of a house and after make a feoffment in fee of the house and of a close adjoining and give livery of seisin of the house the termors wife and children being then in the house in this case this is no good livery neither to passe the house nor the close If lessee for life or years make a feoffment of the land the lessor Perk. Sect. 2â—2 Dier 362. being then upon the land and not contradicting it it seemes this Forâ—â—iâ—ure is a good feoffment and that the presence of the lessor upon the land especially if he doe not contradict it will not hinder the virtue of the feoffment as against the feoffor and all others but the lessor may enter afterwards for the forfeiture notwithstanding if hee please If the husband alone make a feoffment of the land he hath in the Perk. Sect. 223. Husband and wife right of his wife or that he hath jointly with his wife his wife being then upon the land and disagreeing to it in this case the feoffment is good against the feoffor and all others but the wife notwithstanding her presence and disagreement but the wife may after his death avoid it If one jointenant make a feoffement of the whole land his companion Perk. Sect. 220. Iointenant being then upon the land by this there doth passe no more but a moity and the feoffement is void as to the moity of his companion for the feoffment doth not give his moity If a man enter into my land by wrong and make a feoffement Perk. Sect. 219. of it to a stranger I being then upon the land this feoffement is void for in this case the Law doth adjudge me to be alwayes in 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
it is to be made houses lands meadowes pastures woods chambers or the like And these things therefore are said to lie in livery But of incorporall things as rents advowsons commons estovers and such like things livery cannot be made And these things therefore are said to lie in grant and not in livery And therefore when a livery is made of these nil operatur See more above Numb 4. To every good livery of seisin is requisite either such an act as the Co 9. 137. super Lit. 49. 6. In respect of the manner order of making it And how livery of seisin is to be made law doth adjudge to be a livery or apt words that doe amount unto it for a livery may be good by words without any act or deed at all But it cannot be good by an act or deed without any words at all howbeit that livery that hath an act or ceremony in it is the best because it taketh the deepest impression in the witnesses The most usuall formall and orderly manner of making of livery West Symb. 1. part Sect. 251. Perk. Sect. 209. 210. Co. super Lit. 48. of seisin is thus that the feoffor donor c. and the feoffee donee c. if they be present or in their absence their atturneys or servants that have authority doe come to the doore backside or garden if it be a house if not then to some part of the land where seisin is to be delivered and there in the presence of many good witnesses doe show the cause of their meeting openly and plainly doe read the deed or declare the contents thereof and of the letter of atturny if there be any And then the feoffor c. or his atturny if it be a house doe take the ring latch or haspe of the doore all the people men women and children being out of the house or if it be of a peece of ground doe take a clod of the ground or a bough or twig of a tree or bush growing thereupon and all the people being out of the ground the same ring c. clod bough c. with the deed doe deliver to the feoffee donee c. or to his atturny and in the delivery hereof doe use these or some such like words viz. I deliver these to you in the name of seisin of all the lands and tenements contained in this deed To have and to hold according to the forme and effect of the same deed Or I deliver you seisin and possession of this house or ground in the name of all the lands contained in the deed according to the forme and effect of the deed And then if it be a house the feoffee c. doth enter in first alone and shut to the doore and then he doth open it and let in others And if the feoffment gift or lease be made without deed then they doe and must withall expresse the very estate it selfe which the feoffee donee or lessee is to have as for example the feoffor donor or lessor must come to the house or land which is to be granted and where livery of seisin is to be made and there must by apt words grant the house or land to him that is to have it in fee simple or in taile or for life as the agreement is and in seisin thereof must deliver him the ring of the doore or a turfe or twig of the land And if the feoffment c. be made by writing then it is wisdome to indorse and set downe on the back of the same how when and where the same is made and the names of the witnesses thereunto But a livery of seisin that is not so exactly made may be good notwithstanding And therefore if the feoffor donor c. or his atturny Co. 9. 137. Fitz. feoffments faits 111. take any thing else that comes from off the land as a stone or the like and therewithall doth make the livery of seisin or if he take a turfe or twig from off another mans ground and not from the same whereof possession is to be given and deliver that upon the ground in the name of seisin Or if he take a peece of silver or gold or a rod stick or the like and deliver this upon the land in the name of seisin all these are good deliveries of seisin and possession So Co. 6. 26. 41 E. 3. 17. if the feoffor c. be at the doore of the house or by the land or in the house or upon the land and after he hath delivered the deed he say to the feoffee donee c. Here I deliver you seisin and possession of this house or land in the name of seisin and possession of all the lands and tenements contained in the deed Or have and enjoy this house or land according to the deed Or enter into this land or house and God give you joy of it Or I am content you shall enjoy this land in all these cases there is a good livery of seisin Et sic de similibus If I being seised of a house in fee make a feoffment of it and of Bro. feoffment 28. divers lands to a man then present with me in the same house and there deliver him the deed in the name of seisin of all the lands contained in the deed in this case this is a good delivery of the deed and a good livery of seisin also albeit I continue in possession of the house still and goe not out of it And if I be Lord of a Manor and Perk. Sect. 211 212. lying sicke within some part of the Mannor I make a feoffment of the Manor and deliver the deed to the feoffee saying to him I will that you take seisin presently and thereupon command all my tenants of the manner to atturne to him and they doe so this is a good livery of seisin So if I make a deed and after I have read it Perk. Sect. 215. Co 6. 26. being upon the land I deliver it to the feoffee donee c. and say Here I deliver you this charter as my deed in the name of seisin of all the lands therein contained or the like this is a good delivery of the deed and of seisin But if I doe only seale and deliver the deed upon or in view of the land without saying or doing any more this will not amount to a livery of seisin * Cromwals case Adjudged in the exchequer 15 Eliz. And therefore if a man make a feoffment with a letter of atturny to give livery of seisin and then he deliver the deed upon the land this is no good making of livery of seisin And so also if there be no letter of atturny If I be seised of a house in fee and being in the house say to Co. 6. 26. I S Here I S. I demise you this house for terme of my life this will not amount to a livery of
to begin in futuro and at or after the day come the lessor himself in person doth make livery of seisin secundum formam cartae in this case the lease perhaps may become good by this livery of seisin If an agreement be between two that the one shall enfeoff the other Co. super Litt. 222. upon condition for surety of money and afterwards livery of seisin is made generally without any such condition in this case it is said by some the estate shall be on condition still If there be a fault in the deed as by the mis-naming of the feoffor Perk. Sect. 42. c. feoffee c. or the like and afterwards the feoffor c. doth himselfe in person make livery of seisin upon this deed to the feoffee c. by this the fault of the deed may be holpen and cured If one make a feoffment to himself and another and give livery Perk. Sect. 204. 203. 7 H. 7. 9. of seisin to the other this is a good feoffment and shall enure to the other wholly and hee shall take the whole by the feoffment and the livery And so if the livery be made to one that is capable and to another that is not capable hee that is capable shall take the whole and the other shall have nothing So if a feoffment be made to two and one of them die before the livery is made and after the livery is made to the survivor in this case the livery shall enure to the survivor only he shall have all the estate thereby So if a feoffment be made without deed to a Corporation and to I S and livery is made to I S alone in this case I S shall have the whole and the Corporation nothing at all If a feoffment be made to four and livery of seisin is made to one Dier 35. 10 E. 4. 1. Co. 5. 95. two or three of them this shall enure to them all But if the feoffment be without deed it shall enure to him wholly to whom the livery is made And if one of them give warrant to the rest to take livery for him and they doe so this shall enure to them wholly and not to him at all for any part If the tenant make a feoffment to his Lord and another and give 10 E. 4. 12. livery of seisin to the other this shall enure wholly to the other untill the Lord agree to it and then to them both If one make a deed of feoffment of one acre of land to A and his Co. super Litt. 21. heirs and another deed of the same land to A and his heirs of his body and deliver seisin according to the form and effect of both deeds in this case it shall enure by moities i. he shall have an estate taile and the fee simple expectant in the moity and a fee simple in the other moity If two severall deeds of feoffment be made to two severall persons of one and the same thing he that can get the seisin first shall have it Rem domino vel non domino vendente duobus In jure est potior traditione prior If lessee for life make a feoffment and a letter of Atturney to the lessor to make livery he doth make livery accordingly in this case Co. super Litt. 52. this shall not enure to bar him of his entry upon the feoffee for the forfeiture of his lessee But if lessee for years make a feoffment in fee and such a letter of Atturney to the lessor and he doe deliver seisin accordingly this livery shall bind him for it shall be said as in his own right because the lessee had no freehold whereof to make livery If a lessor make a deed of feoffment and a letter of Atturney to Co. super Litt. 52. the lessee for years to give livery and he doth it accordingly this shall not be construed to extinguish or hurt his term See more in Exposition of Deeds supra ch 5. And so we come to another kinde of Deed of Common Assurance called a Bargain and Sale CHAP. X. Of a Bargain and Sale THis word doth signifie the transferring of the property of a Terms of the Law Plow 301. Co. 2. 35. thing from one to another upon valuable consideration And 1. Bargain and Sale Quid. herein only it doth differ from a Gift that this may bee without any consideration or cause at all and that hath always some meritorious cause moving it and cannot be without it This word also is sometimes applied to the assurance or conveyance whereby this is done and made which is called a deed of Bargaine and Sale for this may be done by writing or without writing And sometimes this is and may be of lands tenements and hereditaments Terms of the Law Plow 301. Co. 2. 35. 2. Quotuplex and to this the terme is most properly applied And then it is said to be where a recompence is given by both parties to the bargain As where one doth bargain and sell his land to another for mony in this case the land is a recompence to the one for the money and the money to the other for the land And this now also is become one of the common assurances of the kingdome * Per Ch. Just Hide 3 C. 1. Co. 2. 54. so that such an assurance may now bee averred to bee fraudulent within the Statute of 27 Eliz. as well as any other assurance a rent may be reserved upon it or a condition made by it as well as by any other kind of assurance And sometimes this is and may be of moveable things as trees corn grasse oxen kine houshold-stuffe and the like the property whereof is and may be altered by this kind of conveyance as well as by gift or grant And this kind of bargain and sale is that which is commonly called a Contract Terms of the Law Agreement which largely taken is an agreement between two or more concerning something to be done whereby both parties are bound each to other or one is bound to the other But strictly it is the buying and selling of some personall goods whereby the property is altered And in both these cases he that doth sell is called the bargainor and hee to whom the sale is made is called the bargainee Bargainor Bargainee The effect of this is to transfer the property and this it will as Co. 8. 94. 5. 113. 3. 62. effectually doe as any other kind of conveyance whatsoever And 3. The effect of it therefore the bargainee of a reversion howsoever he may not have benefit of a condition upon the demand of a rent without giving notice of the bargain and sale to the lessee And howsoever if A conusee by a fine of a reversion before atturnment of the tenant bargain and sell the reversion to B that B cannot distraine for this rent untill he can get an atturnment
inrolment thereupon shall relate And how and to what purposes not Co. 4. 71. Bro. fait Inrol 9. the sixe moneths shall to most purposes relate to the time of the delivery or of the date of the deed And it is given as a rule That it shall have relation to the time of the delivery of the deed viz. to avoid all meane estates and charges made to a stranger by the bargainor after the delivery of the deed before the inrolment but not to devest any estate lawfully settled in the interim in the bargainee himself And therefore if one bargain and sell his land by deed indented to one and after before the deed is inrolled he enter into a statute or grant a rent-charge out of this land or make a lease of the land to another and then the deed is inrolled within the time in this case the relation shall avoid all the mean charges and estates And if A bargain and sell his land by deed indented to B and afterwards doth sell the same land by deed indented to C and the deed made to C is first inrolled and then the deed made to B is inrolled also within the six months in this case B shall have the land and the relation of his inrolment shall make the inrolment of the other deed void So if A levy a fine Dier 218. of the land to C yet B shall have the land But if the first deed Curia M. 3 Jac. B. R. made to B be not inrolled within the six moneths and the deed to C be inrolled within the six moneths contra If A bargain and sell land to B and after levy a fine to B of the Co. 4. 71. same land and after within the sixe moneths the deed is inrolled in this case B shall take by the fine and not by the bargain and sale If one jointenant alien all his lands in Dale to A and before the Bro. fait Inroll 9. inrolment the other jointenant die and after the deed is inrolled in this case but a moity and not the whole land doth passe If A bargaine and sell his land to B and after this A doth become So held 4. Car. B. R. Bankrupt and the Commissioners sell the land to C and 〈◊〉 after the deed is inrolled within six months in this case B and not C the purchasor shall have the land If A bargain and sel his land held in capite to B in fee B dieth Pasche 15. Jac. Ward before inrolment and then the deed is inrolled in this case the heir of B shall be inward And so was it held by all the Justices in Sir Walter Earls case Pasch 15 Iac. Curia Ward And yet in this case the wife of the bargainee shall not have dower as was held Contrarium tent per Iust Berkley Hil. 11 Cat. Dower by Anderson Chief Justice and Justice Walmsley 3 Iac. Co. B. and again in Sir Robert Barkers case 6 Iac. And if one bargain and sell 〈◊〉 his land to I S and after this the rent incur and then the deed is inrolled the bargainee and not the bargainor shall have the rent Per Curiam B. R. Hil. 11 Car. If A bargain and sell his land to B in fee and then mary C and 22 Eliz. die and C is endowed and after the deed is inrolled in this case the dower of the woman shall be taken away by relation as was held in Baron Frevils case 22 Eliz. Co. B. If A bargain and sell land to B and C in fee and B release to C Release 3 Jac. Co. B. before the inrolment this release is void If A disseisor bargain and sell the land disseised to B in fee and So held in Mockets case 10 El. the disseisee doth release to the bargainor and after the deed is inrolled in this case this release shall avail B. If A bargain and sell his land to B and B before inrolment doth bargain and sell the land to C the first deed is inrolled and then the second deed is inrolled in this case the last bargain and sale is void and shall not be made good by relation as was held by the Court 6 Jac. in Sir Robert Barkers case If a lease be made rendring rent on condition to reenter for not So was it held in Sir Christopher Hattons case payment and the lessor bargain and sell the reversion by deed indented and after the deed made the rent is arere and then the deed is inrolled in this case it shall not relate to give a reentry for the condition broken If A bargain and sell land to B in tail and B before inrolment of So hath it been adjudged the deed doth make a lease according to the Statute of 32 H. 8. and after the deed is inrolled this is a good lease And now we come to a Gift CHAP. XI Of a Gift THis word importing no more then the transferring of the property of a thing from one to another is of larger extent then Gift Quid. a feoffement which is always applied to an immoveable thing for this is often applied to moveable things also as trees cattell houshold-stuffe c. the property whereof is and may be altered as well by gift as by sale or grant And in this sense a gift is sometimes by the act of the party as when one man doth give a thing to another And this is or may be either by word or by writing And sometimes it is by act of Law as when a woman is maried to a husband or one is made Executor to another in these cases by the mariage onely and taking of the Executorship the Law gives all the goods of the woman to the husband and of the Testator to his Executor So where one doth take my goods as a trespasser and I recover damages for them upon a suit in Law in this case the Law doth give him the property of the goods because hee hath paid for them But this word Gift is sometimes taken more strictly and applied to a conveyance or passing of an estate of lands or tenements to another in tail wherein this word Dedi is most commonly used And then hee which doth so give the land is called the donor and hee to whom it is given the donee And this for the most part is by deed though it may be otherwise Donor Donee And for these deeds of gift of immoveable or moveable things see Deed and Grant in toto wherein all the learning touching this matter is involved And so we passe to a Grant CHAP. XII Of a Grant THis word taken largely is where any thing is granted or passed Grant Quid. from one to another And in this sense it doth comprehend Co. super Litt. 172. 9. Finchesley 29. feoffements bargaines and sales gifts leases charges and the like for he that doth give or sell doth grant also And
thus it is sometimes in writing or by deed and sometimes it is by word without But the word being taken more strictly and properly it is the grant conveyance or gift by writing of such an incorporeall thing as lieth in grant and not in livery and cannot be given or granted by word onely without deed Or it is the grant of such persons as cannot passe any thing from them but by deed as the King bodies corporate c. And this albeit it may be made by other words yet it is most commonly made by this word grant as being most proper to this purpose Know therefore that amongst Co. super Litt. 49. hereditaments some are such as are said to lie in livery i. such as whereof livery of seisin may be made as Manors houses lands c. And some are such as doe not lie in livery i. whereof no livery of seisin can nor need to be made but they passe by the delivery of the deed without any more and of this sort are rents reversions services advowsons in grosse and the like which things cannot passe from man to man without deed or matter of record which is of a higher nature then a deed And hee that makes this grant is called the grantor and hee to whom it Grantor Grantee is made is called the grantee It is taken here in the largest sense as that which doth comprehend 2. Quotuplex both And so some grants are of the land or soile it selfe and some are of some profit to be taken out of or from the soile as rent common c. And some are of goods and chattels and some are of other things as authorities elections c. And they are made sometimes by matter of record sometimes by deed or writing in the country and sometimes by word without either Some grants also tend to charge the grantor with something he was not charged with before and some to passe something out of him to the grantee and some tend to discharge the grantee of something wherewith he was charged or chargeable before and whereof he is now hereby discharged Regularly these things are requisite in every good grant or 3. Things necessarily requisite to every good grant Co. 11. 73. Plow 555. gift 1. That there be a grantor donor c. and that he be a person able to grant and not disabled by any legall or naturall impediment 2. That there be a grantee donee c. and that he bee a Perk. Sect. 1. person capable of the thing granted and not disabled to receive it 3. That there be a thing granted and that the thing be such a thing as is grantable 4. That it be granted in that order and manner that Law requireth as where the thing is not grantable without deed that it be done by deed And if it be by deed that the deed have apt words to describe and set forth the person of the grantor and grantee and thing granted c. and that all necessary circumstances as sealing and delivery and livery of seisin and atturnment where it is needfull bee observed 5. That there bee an agreement to and acceptance of the grant or thing granted by him to whom it is made and for default in either of these particulars a grant may be void In acquirendo rerum dominio scilicet quod donationes non valent licet sint inceptae nisi sint perfectae But if grants Bro. Grant 89. be very ancient and the things granted have been enjoyed according to the grant ever since the making of it in this case the grant may be good notwithstanding some legall defect in some of these particulars Corporations as Dean and Chapter Maior and Communalty and 4. What shall bee said a good and sufficient grant gift or sale Or not 1. For the manner of it And what may bee granted without deed Or not And how Rents Services c. Perk. Sect. 64. 4 H. 7. 17. Plow 150. 16 H. 7. 3. Litt. Sect. 60. such like regularly can neither grant lands goods or chattels but it must be by deed But the grantees of such persons and all other common persons may grant or give any thing which doth lie in livery as manors houses lands and such like things in fee simple fee tail for life for years or at will by word without deed And if a lease be made of any such thing for life or years with a remainder over in fee simple fee taile or for life it is good albeit the same be done by word without any deed in writing Such things as are said to lie in grant and not in livery generally Co. super Litt. 49. Dier 139. Perk. Sect. 61. 60. 63. Bro. Grant 59. cannot be granted or given had or taken without deed unlesse it be in some speciall cases And therefore rents and services and such like things which are in grosse and not incident to some other thing may not be granted without a deed And therefore if a rent-charge be granted unto me for years I may not grant this rent over without deed And if there be Lord and tenant of errable land by fealty and the service of yeelding the tenth sheaf of corn before it be sowed the Lord cannot grant this service for years without deed But if a rent or any service be parcell of or incident to a manor or any other thing which is grantable without deed in this case by the grant of the principall by word this thing may passe as belonging thereunto without any deed Also rents or services may be granted upon a partition by one coparcenor to another without deed A reversion cannot be granted in fee simple fee tail for life or Perk. Sect. 61. Dier 174 Plow 433. Bro. Grant 104. years without deed unlesse it be in casewhere it is parcell of a manor Reversion or Remainder But a reversion may be granted upon a partition by one coparcenor to another without any deed And the same law is of a remainder And therefore if one make a lease for life or years to one the remainder in fee simple fee taile or for life to another without deed howsoever this be a good remainder in the first creation without deed yet this remainder cannot be granted over without deed A Parsonage or Rectory albeit it consist of nothing but Tithes 15 H. 7. 8. 16 H. 7. 3. 19 H. 8. 12. 21 H. 6. 43. Advowson Tithes c. and the like besides the Church and Church-yard and it hath no house nor glebe belonging to it yet may be granted without deed in fee simple for life or years and then the tithes and offerings will passe as incident But the tithes alone or a portion of tithes oblations mortuaries or obventions are not grantable by themselves without deed And therefore a lease paroll of tithes albeit All this was agreed 36 El. B. R. it be but for years is not
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.
gotten a name by reputation a grant may be made to him by that name and it is good If a grant be made to W. at Stile by the name of W. at Gappe 9 E. 4. 43. Fitz. Grant 23. this is a good grant notwithstanding this mistake But where a grant doth intend to describe the person of the Co. super Lit. 3. Perk. Sect. 54. Bro. Grant 65. Done 17. Dier 337. Perk. Sect. 55 56. Bro. Don. 31 Grant 172. Done 50. Fitz. Donet Perk. Sect. 55. 52. grantee by his proper name and doth omit or mistake his christian name or sirname in this case for the most part the grant is void unlesse there be some speciall matter to help it as in the cases before And yet if the grant doe not intend to describe the grantee by his known name but by some other matter there it may be good by a Incertainty certaine description of the person without either sirname or name of Baptisme And therefore a grant to the wife of I S or primogenito filio or to the second sonne or to the youngest sonne or Seniori puero or omnibus filiis or filiabus I S or omnibus liberis I S or omnibus exitibus I S or to the right heires of I S or to the next of bloud of I S in these cases grants made to these persons in these words are good for the person is certainly enough described And if a lease be made to I S for life the remainder to him that shall come first to Pauls such a day or to him that I S shall name in three daies if in these cases any one doe come to Pauls that day or be named by I S within three daies and the particular estate doth so long continue this is a good grant of the remainder Id certum est quod certum reddi potest But if a grant be made in these words viz. To foure of the parishoners of Dale or Deo ecclesiae de D or to two of the sonnes of I S and he hath many sonnes or to I S or W S in the disjunctive these and such like Grants as these are utterly void for incertainty And if a gift or grant of goods be to the parishioners of Dale in these words it seemes this is good but if a grant or gift of land be made to them by these words it seemes this is void And so also it is of a grant of goods to the Churchwardens of a parish this is held to be good but otherwise it is of a grant of land to them Abastard is capable by that name whereby he is usually called and therefore a grant to him by that name is good And a right heire or one that shall be the first issue of I S that hath no child is capable of a remainder by that name but of land in possession he is not capable by that name And a bastard as the reputed sonne of I S may take by a grant to I S and his issue A Bishop may take by the name of a Bishop without any other name But if a grant be made to the parishioners or inhabitants of Dale or probis hominibus de Dale or to the commoners of such a wast or to the Lord and his tenants bond and free these are not good grants for albeit these persons are capable yet are they not capable by these names If there be two grantees and one of them doe take by the deed it Doct. Stud. 94. Co. 1. 15. super Lit. 231. New terms of the law 251 252. 5 E. 3 17. Co. super Lit. 21. is sufficient but if the grant be to one that is no party to the deed and not to the grantee himselfe in this case albeit the grantee and he to whom the grant is made be capable and never so well described by their names yet is the grant void for no grant can be made but to him that is party to the deed except it be by way of remainder And therefore if a man make a lease for terme of life and after the lessor grant to a stranger that the tenant for life shall have the land to him and his heires this Grant is void Et sic de similibus And yet it seemes in some cases if one of the grantees be party to the deed that another Grantee that is no party to the deed may take with him And therefore the case was Robert gave the reversion of lands which Agnes his wife did hold for her life to Stephan de la Moore Habendum postmortem dictae Agnetis in liberum maritagium cum Johanna filia ejnsdem Roberti in this case it was adjudged that albeit Joane were not named before the Habendum yet that she should take in taile with her husband Touching this point these things are requisite 1. That the 4. In respect of matter touching the thing granted charged c. thing whereof the grant is made be grantable and that both in respect of the nature of the thing it selfe and also of his estate that doth grant it for in some cases albeit the thing for the quality of it be grantable yet in respect of the estate and property that the owner hath in it it is not grantable 2. That if it be by deed it be sufficiently distinguished and named Amongst things that are grantable some are grantable de novo and in their first creation but not transmissible nor assignable afterwards 1. In respect of the nature of the â—â—ing granted And what things are grantable over or chargeable Or not 1. In respect of the nature of the thing it selfe And some are grantable at first in their originall creation and assignable over afterwards from man to man in infinitum All things that may be granted by fine and whereof a fine may See Fine Numb 6. part 3. See in exposition of the termes of Grants supra cap. 5. Numb 15. Bro. Done 10. be levied may be granted over from man to man All the things that are before observed to be grantable by or without deed are grantable over from man to man And therefore all corporall and immovable things that lie in livery as Manors mesuages cottages lands meadowes pastures woods and the like are grantable in fee simple for life or years at first and assignable over againe at the pleasure of the grantee Also trees and emblements are grantable And a man may grant the vesture or herbage i. the grasse of his ground and not the ground it selfe And a man that is seised in fee of a house may give or sell the timber stone c. of the house and the donee or grantee may take it after the death of the donor Also all incorporeall things that lie in grant as rents Perk. Sect. 103. Bro. grant 3. 3 H. 6. 20. 9 H. 6. 12. Perk. Sect. 91. 87. 101. Fitz. grant 145. Co. super Lit. 144. Rents Services services and
the like are grantable over in fee simple for life or years and therefore rents or services reserved upon any estate and rents granted out of lands are grantable over in infinitum And if a man have a rent reserved on a particular estate he may grant over parcell of it But a rent or Service suspended cannot be granted Neither can a man grant a rent issuing out of a rent If a rent be granted to me I may grant it over to a stranger before I be seised of it and this grant is void But an Annuity it seemes is not grantable over after the first creation of it And yet if an Annuity be granted to I S and his assignes pro consilio it seemes this Annuity is grantable over Advowsons are grantable in fee simple for life Stat. 32. H. 8 cap. 7. Perk. Sect. 90. Advowsons c. or years from man to man in infinitum Also the presentation to a Church before the Church is void is grantable but when the Church is void that Turne is not grantable for it is then in the nature of a thing in action Also Rectories and tithes and portions of tithes and pensions are grantable from man to man in infinitum Reversions and Remainders are grantable from man to man in fee Perk. Sect. 73. 88. 87. simple fee tail for life or years And if I have a tenant for life of three Reversions and Remainders houses I may grant the reversion of two of them And if I have the reversion of three houses four acres of land I may grant the reversion of two houses of two acres of land And if tenant in taile be of an acre of land the remainder to his right heires he may grant over this remainder by it selfe and yet it is such a thing as the tenant in taile himselfe may barre by a common recovery But if a grant be of land to I S for years the remainder to the right heires I D I D is living this remainder is not grantable so long as I D doth live Commons of pasture of turbary of fishing of estovers are grantable Perk. Sect. 103. Common in fee for life or years from man to man in infinitum * Per 2. Judges against one Hil. 16 Jac. B. R. And yet if a common in grosse and without number be granted to a man and his heires it seemes this is not grantable over to another man But if common for a certaine number of beasts be so granted it seemes the law is otherwise and that this is grantable over in case where the first grant is to the grantee only and not the grantee and his assignes Offices are grantable at first but the great Judiciall offices of Offices Perk. Sect. 101. the kingdome as the offices of the Lord Keeper Chiefe Justices or Chiefe Baron or of other of the Justices or Barons and such like are not grantable over to others neither may they be executed by deputies But the Sheriffes office albeit it be not grantable over yet may it be executed by deputy * Per Lord Keeper 2. Chiefe Just M. 5 Car. in cancellaria The reversion of an office is Prerogative not grantable by a Subject as it is by the King yet a Subject may grant an office Habendum after the death of the present officer and this is good †Co. super Lit. 233. Perk. Sect. 101. The inferior offices also that are offices of trust especially if they concern the person of the grantor howsoever they are grantable at first yet are they not grantable over by the officer to any other unlesse they be granted to them and their assignes and of this sort are the offices of Steward Bailife Receiver Sewer Chamberlaine Carver and the like neither may these be executed by deputy but where the grant is so Licences and authorities are grantable at first for the lives of the Licences Authorities c. 12 E. 7. 25. 13 H 7. 13. parties or for years But the grantees of them cannot assigne them over And therefore if power be given to me to make an award or livery of seisin I may not grant over this power to another And if licence be granted me to walke in another mans garden or to goe through another mans ground I may not give or grant this to another A bare possibility of an interest which is incertaine is not grantable Co. 4. 66. 5. 24. Dier 244. Co 10. 51. And therefore if one have a terme of years in land and by Possibilities his will devise it to I S for his life and afterwards to me for the residue of the yeares or devise it to I S if he live so long as the terme shall last and if he die before the terme end the remainder to me in these cases so long as I S doth live I cannot grant over this possibility So if a lease be made to me and my wife for life the remainder to the survivour of us I may not grant this remainder over to another man But such a possibility being coupled with some present interest is grantable over And therefore if A have foure houses in execution upon a Statute and by course of time it will endure thirteene years and after two of the houses are evicted by Elegit for fifteen years in this case he that hath this execution upon the Statute may assigne over his interest in these two houses for after the execution by the Elegit is satisfied A shall have the two houses againe untill he be satisfied The Lord cannot grant the Perk. Sect. 90. wardship of the heire of his tenant whiles the tenant is living Those things that are inseparably incident to others are not 1 E. 4. 10 grantable without the thing to which they are so incident and belonging Incidents And therefore a Court Baron which is evermore incident Perk. Sect. 104. 5 H. 7. 7. to a Manor is not grantable without the Manor it selfe common appendant to land is not grantable without the land it self to which it doth belong and common of estovers appendant to a house is not grantable without the house it selfe to which it doth belong A rent service or other thing whiles it is wholly in suspense is Suspended things not grantable And therefore if the Lord disseise the tenant or 16 H. 7. 4. Co. super Lit. 314. Bro. Grant 173. Perk. Sect. 88 89. the tenant enfeoffe the Lord upon condition the Lord cannot grant over the Seigniory during this suspension But if one have a rent in fee out of my land and he purchase the same land for life or years in this case it seemes the rent is grantable even whiles the estate of the land doth continue So if the tenant make a lease for yeares or life of the tenancy to the Lord in this case the Lord may grant the Seigniory notwithstanding And yet
of totam illam Communiam suam c. some doe hold this grant to be good Any thing may be granted by the name whereby it is and hath Co. 6. 65. 45 E. 3. 6. Bro. grant 7. Perk. Sect. 116. been usually called of latter times within nine or tenne years or thereabouts albeit it be an improper name and not the ancient name of the thing but a name newly gotten And so a Manor may passe by the name of a mesuage or farme or a farme or Manor by the name of a mesuage if it be so usually called and reputed So the great houses in London called Exceter and Dorset houses may be granted by those names And if a man grant that which in deed is a pasture ground by the name of a wood Or granr that which in 14 H. 8. 1. 27 H. 6. 2. deed is a wood by the name of a pasture ground and the things are called by those names these are good grants of those things And if one grant by the name of a great field that which in deed is but a little close but it is usually called by the name of a great field this is a good grant of this thing So if one grant by the name of a plow land that which in truth is but an acre of land or grant by the name of a Manor that which is but a plow land these grants are good And so as it seemes it is è converso But if a man grant a house or a mesuage by this grant an acre of land will not passe By the grant of services a rent reserved upon an estate taile Co. super Lit. 150. Mic. 7 Jac. Curia B. R. will passe If a man make a lease of one house to another for years and the lessee divide it and make two houses of it and after the lessor doth grant the reversion of it by the name of one house this is a good grant to passe it And if one lease three houses to three severall men at severall times and they divide them into twenty nine tenements and housholds in them all and the first lessor doth grant them by the name of three mesuages this is a good grant to passe them all But if he grant by the name of fifteene mesuages or tenements only it seemes this is good for no more but for fifteene of the subdivided tenements If one recite that he hath a rent charge issuing out of blacke acre Perk. Sect. 72. and white acre and then grant the same rent and in truth it doth issue out of blacke acre only or if he doe recite that it doth issue out of one acre when in truth it doth issue out of both in both these cases the grant is good notwithstanding these mistakes If one be Patron of the Church of S. Peter and Paul in D and Bro. Grant 12. he grant the next Presentation of the Church of S. Peter or of the Church of S. Paul these are void grants to passe the Presentation * Perk. Sect. 79. Per Ch. Justice Hutton Yelverton Co. B. Mic. 3. Car. in the case of Edward Crew If one grant a rent out of white acre by the name of a rent out of blacke acre this grant is void as to charge white acre If one have a Manor called Steeple Lavington and he grant it by the name of west Lavington alias Steeple Lavington by the alias especially if the grant say lying in Lavington and the Manor of Steeple Lavington doth lie in that parish and the grantor hath no other land there If one grant all his lands which he hath in D in this manner All my lands in D which I had of the grant of I S this is a Mic. 2 Jac. in Brownes case agreed good grant of all his lands in D albeit he had them not of the grant of I S but of the grant of another But if the words be all my lands which I had by the grant of I S in D in this case the grant is not good to cary any other lands in D but such as he had of the grant of I S. So if one grant in this manner all my Manor Plow 169. 395. And so was the opinion of Ch. Justice Popham 2 Jac. B. R. of Sale in Dale which I had by descent and in truth he had it not by descent but by purchase this is a good grant of the Manor So if one grant all his lands in Dale and say no more this is a good grant to passe all his lands there But if one grant in this manner all my lands in Dale which I had by descent from my father and in truth I had them not by descent but by purchase this grant is void and will not passe those lands So if I grant in this manner Dier 87. all my lands that I had by the attainder of I S and in truth I had no land by that meanes this grant is void And if I grant after this manner all my lands in B in the tenure of D which I had of the gift of I S and in truth it doth lie in B and is in the Mic. 2 Jac. Adjudge Brownes case tenure of D but it was not purchased of I S this is a good grant to passe the land If a parish lie in two Counties viz. Berk. and Wilts and one Dier 299. Co. 3. 10. grant in this manner all his close called Callis in the parish of Hurst in the county of Berk. and in truth the close doth lie in the county of Wilts this is a good grant to passe the close But if one grant in this manner All his houses in the parish of S. Buttolphes extra Algate late in the tenure of R where in truth he hath no houses there but he hath some houses in S. Buttolphes extra Aldersgate this is a void grant And yet if the grant be in this manner All that my house in the occupation of I S in S. Andrews parish whereas in truth it is in the parish of K. but in the occupation of I S it seemes this grant is good to passe the house But if it be thus All that my house in S. Andrews parish in Holborne in the occupation of I S and in truth it is in another parish but in his occupation this grant is not good to passe the house If one grant in this manner my Manor of Dale which appeareth by office found to be of the value of tenne pound per Annum and Hil. 2 Jac. B. R. per Tanfield in truth in the office it is found at twenty pound per Annum this grant is good notwithstanding this misprision If one grant in this manner all my Manor of W late parcell of Pase 7 Jac. B. R. Co. 2. 32. the possession of the Abbot of S and late in the possession of K and in truth it was never in the possession of K this grant
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
the grantee of the Seigniory rent or reversion bring any action of wast for wast done in the land nor distraine for any rent or service upon the land before this is done But this is but a bare assent and therefore it shall not nor will enure or worke to passe any interest to make a bad grant good to enfranchise a villaine nor to give a man a tenancy by disseisin intrusion or abatement neither shall it worke by way of estoppell And therefore if a man gaine a rent issuing out of land by cohersion of distresse or otherwise and the tenant of the land atturne to him this will not amend his estate But otherwise a grant and the atturnement of the tenant doe as effectually passe the freehold and inheritance of the reversion of land as a feoffment and livery of seisin of land doth passe the possession of land In most cases where the grantee hath meanes to compell the tenant to atturne there the atturnement of the tenant is at least to Lit. Sect. 579 580 581. Co. 6. 68. Co. super Lit. 309. 314. 320. 4. Where and in what cases the atturnment of the tenant is necessary Or not And how And to what intents some purposes needfull for howsoever it be true that if a seigniory rent services reversion or remainder be granted by fine in this case the rent seigniory c. doth passe so as the grantee may enter for a forfeiture upon the alienation of the tenant being tenant for life years by statute or elegit or upon an escheate of the tenant or seise a ward or heriot if it happen before any atturnment be made And if the reversion of a lease for years be granted by fine and the lessee be ousted and the lessor disseised the conusee may have an assise and therefore as to all these purposes the atturnment of the tenant is not needfull But the grantee his heire or assignee cannot distraine the tenant for rent or bring any action that doth lie in privity between him and the tenant as wast upon a wast done by the tenant writ of entry ad communem legem or in casu proviso or in consimili casu upon the alienation of the tenant escheate upon the dying of the tenant without heirs or ward upon the death of the tenant his heire within age or writ of customes and services untill he have the atturnement of the tenant and therefore as to all these purposes the atturnement of the tenant is necessary And hence it is that the conusee of a fine hath meanes appointed him by the law to compell the tenant to atturne for in case where the Lord doth grant his seigniory to another and the tenant will not atturn the conusee before the fine be ingrossed may have a writ called a Per que servitla and thereby compell him to atturne And in case Old N. B. 170. Co. super Lit. 252. where a man doth grant a rent to another and the tenant of the Per que servitia land out of which the rent doth issue will not atturne the conusee of the rent may have a writ called a Quem redditum reddit and thereby compell him to atturne And in case where a man doth I dem Quem redditum reddit grant a reversion or a remainder of his tenant for life to another and the tenant will not atturne the conusee of the reversion or remainder may have a writ called a Quid Juris clamat and thereby Idem Co. super Lit. 310. compell the tenant for life to atturne * Co. super Lit. 321. And if the conusee of the Quid Iuris clamat fine die in these cases before he have the atturnment of the tenant his heire albeit he come to the thing descended by act of law yet shall be in no better case then his auncestor was And if the conusee Co. 6. 68. Lit. Sect. 584. 583. of a fine by which he hath a reversion granted to him before he hath gotten the atturnment of the tenant bargaine and sell the reversion by deed indented and inrolled the bargainee shall be in no better case then the bargainor was And if a reversion be granted by fine and the conusee before atturnement enter and make a feoffment and the lessee reenter in this case the feoffee cannot distraine for the rent And yet 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 die without heire and by this meanes the services of the mesne escheate in this case the Lord may distraine for them without any atturnement of the tenant In these following cases atturnement in law or in deed is absolutely and to all intents necessary viz. a a Co. 2. 66. Lit. Sect. 551. 567. 571. Co. super Lit. 316. Where one doth make a lease for life or years to one and after doth grant the reversion or remainder after the same lease ended to another by deed in fee simple fee taile for life or years in this case the lessee for life or yeares must atturne b Lit. Sect. 551. Co. super Lit. 315. Perk. Sect. 636. So where the Lord doth grant his seigniory or the services of his tenant by deed in fee simple or otherwise in fee taile for life or years to a stranger in this case the tenant must atturne c Co. 6 68. Doct. Stud. 35. Lit. Sect. 553. So where the Lord of a Manor doth make a feoffment of his Manor in this case the services of the tenants will not passe without their atturnement d Co super Lit. 312. Lit. Sect. 572. So if another man have a rent service rent charge or rent seck issuing out of my land and he doth grant this rent to a stranger in this case I must atturn to this grant to the stranger And if in these cases the tenant doe not atturn the grant of the reversion c. is meerly void If a reversion bee granted after an estate of a tenant by Statute Co. super Lit. 315. Merchant Staple or Elegit or after an estate that any one hath untill debts be paid or the like in these cases these tenants must atturn or this grant will not be good If one make a lease for years of land rendring rent and after hee Co. 2. 35. Lit. Bro. Sect. 298. Dier 307. Co. super Lit. 312. Lit. Bro. Sect. 151. 379. Bro. Attur 59. Dier 26. Lit. Bro. 349. doth grant the reversion to another for years to begin after the death of the grantor in this case it is needfull that the lessee for years in possession doe atturn to make this grant good But if one make a lease of his land to one for tenne years and after make a lease of it to another To have and to hold from the end of the said terme of tenne years for the terme
1. 44. Plow 524. lands or tenements may by deed or writing in the country or without writing by word of mouth make a lease of it for what lives or years he will And hee that is seised of an estate in tail of any lands or tenements may make any lease out of it for his owne life but not longer unlesse it be by fine or recovery or it be such a lease as is warranted by the Statute of 32. H. 8. whereof see more infra And he that is seised of lands or tenements of any estate for his own or anothers life may make what lease for years he will of it and it will be good as long as the lease for life doth last And hee that is possessed of lands or tenements for years may make a lease of it for all or part of the years and these are good leases The tenant for life or years may also assigne over all their estates if they please And if such tenants make leases for longer time as if lessee for years make a lease for life it seemes by this the land will passe for life if the term of years last so long But if he give livery of seisin upon it as he must to make the lease for life good this is a forfeiture of the estate for years Forfeiture Infant If an infant be seised of land in see simple and he make a lease 9 H. 7. 24. 18 Ed. 4. 2. Plow 545. for years of it rendring no rent this lease is void But if there be a rent reserved upon the lease then the lease is but voidable and may by the acceptante of the rent by the infant after his full age bee Acceptance made good Jointenants tenants in common and parcenours may make leases Litt. cap. tenant in common F. N. B. 62. G. Iointenants Tenants in common for life or years of their own parts and purparties at their pleasures and these leases will binde their companions And one coparcenour or tenant in common may make a lease of his part to his companion if he will If a feoffment be made upon condition and before the time of performance of the condition the feoffor and feoffee doe joyne to make a lease for life or years of the land this is a good lease A man that hath an estate in land to him and his wife and his Bro. Leases 58. heirs may make what lease he will of the land and this will be good against all men but his wife onely and that for her time If there be lessor in fee and lessee for ten years in this case they Co. 10. 49. two may joyn together and make a lease for lives or for any terme of years and this is good A disseisee cannot make a lease of that land whereof he is disseised Plow 133. untill he make his entry or recover the possession of the land again So neither can a woman that hath recovered the third part Bro. Scire facias 36. of her husbands land in a writ of dower make any lease of it before she be in possession by execution And yet if a lease be made Co. super Lit. 46. to me for years I may make a lease of part or an assignement of all the term before I have made my entry into the land demised So if the father die and the son make a lease to a stranger of the land Plow 137. 142. descended to him before his entry this is a good lease but if a stranger had entred and abated into the land and then the sonne had made the lease contra In some cases also such persons as are not seised in see simple c. Co. 5. 5. Dier 357. Co. 62. 8. 70. 1. 175. See in Leases made by tenant in tail infra nor able to derive such estates for life or years out of their owne estates By speciall power or proviso to make leases may lawfully notwithstanding make such leases for life c. And this is sometimes by some speciall Act of Parliament enabling them so to doe And hence it is also that a tenant in tail may make leases for three lives or twenty one years And sometimes it is by some speciall power or authority that is given or reserved by and to the party himself that had the see simple in him or given to some other to doe it in his name and leases thus made may bee good And therefore if any Act of Parliament enable a tenant in tail or a tenant for life to make leases for three lives or twenty one years leases that are so made in pursuit of that authority are good And if a man be seised of land in fee and convey it to the use of himself for life or in tail with divers remainders over with a proviso that it shall be lawfull for him or any such tenant in tail to make leases for twenty one years in this case he or they may make such leases and they will be good But in both these cases care must be had to pursue the authority strictly i. that the leases made be according to the power and direction given by the statute or proviso for if it differ and vary ever so little from the sense and meaning of the same the lease will not be good And therefore in the case before of a power to make leases for twenty one years if the party make more leases for twenty one yeares at one time then one they are all void but the first because it is against the intent of the parties though it be not against the words And so if the power be to make leases for three lives he cannot by this make a lease for ninety nine yeares if three lives so long live But if the power be thus Provided c. that he may make any lease in possession or reversion so as it doe not exceed the number of three lives or twenty one years in this case a lease may be made for ninety nine years if three lives live so long But where uses are raised by way of covenant and in the deed there is a proviso that the covenant or for divers good considerations may make leases for years in this case this power is void and therefore no lease can bee made hereupon neither will any averment help in this case And if a man have a Averment letter of Atturney or other authority to make leases for another and doe make them accordingly such leases are good But herein also caution must be had of three things 1. That the authority be Co. 9. 76. good 2. That he that is the Deputy or Atturney doe pursue the authority strictly 3. That he doe it in the name of his master and not in his own name A lease made for a thousand days moneths or weeks is as good Co. 6. 72. 14 H. 8. 13. 2. In respect of the manner of the agreement
to come at the time of his death by this the whole estate and interest of the grantor into the land doth passe presently by these words in the premisses of the deed And if in this case the lessee for an hundred years make a lease of the land to have and to hold after his death for an hundred years this will bee a good lease for as many of the first hundred years as shall be to come at the time of his death If A make a lease to B for ninety years to begin after the death Per Justice Bridgeman of A on condition to be avoided upon the doing of divers acts by others and afterwards makes another lease of the land Habendum after the determination or redemption of the former lease it seems this is a good lease and certain enough But if a lease be made to A Co. 4. 153. Dier 253. for eighty years if he live so long and if he die within the said term or alien the premisses that then his estate shall cease and then he doth further by the same deed grant and let the premisses for so many years as shall then remain unexpired after the death of A or alienation to B for the residue of the said term of eighty years if he shall live so long in this case the lease to B is void for after the death of A the term is at end but if he say for the residue of the eighty years it is otherwise If A doth make a lease of land to B for so many years as B hath Plow 273. 523. 522. F. N. B. 6. N. 14 H. 8. 11. Co. 6. 35. in the Manor of Dale and B hath then a lease for ten years of the Manor of Dale in this case this is a good lease for ten years But if A make a lease of land to B for so many years as the land B hath in execution shal be in execution this lease is void for incertainty And if a lease be made during the minority of I S or untill I S shall come to the age of twenty one years these are good leases and if I S die before he come to his full age the lease is ended But if a lease be made to another until a child that is now in its mothers belly shal come to the age of twenty one years this lease is not good And if a lease be made for so many years as I S shall name in this case if I S do name a certain number of years in the life time of the party lessor this is a good lease But if a lease be made for so many years as the executor of the lessor or of the lessee shall name this lease is void If a man make a lease for twenty one years if I S live so long or Co. super Liâ— 45. Plow 27. if the coveroure between I S and D S shall so long continue or if I S shall continue to be Parson of Dale so long these and such like leases are good But if A make a lease to B for so many yeares as A and B or either of them shall live not naming any certain number of years this cannot be a good lease for years So if the Parson of Dale make a lease of his glebe for so many years as he shall be Parson there this is not certain neither can it be made so by any means And yet if a Parson shall make a lease from three years to three years so long as he shall be Parson this is a good lease for six years if he continue Parson so long and for the residue void for incertainty So if I make another a lease of land untill he be promoted to a Benefice this is no good lease for years but void for incertainty If I have a rent-charge of twenty pound per annum and let it to Co. 6. 35. 14 H. 8. 10. Plow 274. another untill he have levied an hundred pound this is a good lease for five years But if I have a peece of land of the value of twenty pound per annum and I make a lease of it to another untill he shall levy out of the profits thereof an hundred pound this is no good lease for years but void for incertainty But here note in all these cases of incertain leases made with such Note limitations as aforesaid as untill such a thing be done or so long Plow 27. Co. 6. 35. as such a thing continue c. that if livery of seisin be made upon them they may be good leases for life determinable on these contingents albeit they be no good leases for years And in some speciall cases a lease may be good notwithstanding Co. super Lit. 46. 10 Ed. 3. 26. some incertainty in the continuance of it for a lease may cease for a time and revive again as if tenant in tail make a lease for years reserving twenty shillings and after take a wife and die without issue in this case as to him in reversion the lease is meerly void but if he indow the wife of the tenant in tail of the land as to the wife it is revived again So if tenant in taile make a lease for yeares rendring rent and die without issue his wife enceint with a sonne and he in reversion enter in this case as against him the lease is void but after the sonne is born the lease is good again if it be within the Statute So if tenant in fee simple take a wife and then make a lease for years and dieth the wife is indowed in this case she shall avoid the lease but after her decease the lease shall be in force again If a lease be made for life or years to A and after the lessor doth 4 In respect of another lease then in being of the same thing Plow 433. â— 421. 273. Co. 1. 155. Bro. Leases 73. 10. Plow 521. Co. 4. 58. make a lease for years by word or in writing to B regularly this concurrent lease to B is a good lease at least for so many yeares of the second lease as shall be to come after the first lease is determined according to the agreement as if the first lease to A be for twenty years and the second lease to B be for thirty yeares and both begin at one time in this case the second lease is good for the last ten years And yet the reversion will not passe without the atturnment of the tenant and therefore if any rent be reserved on the first lease the second lessee shall not have it untill the first lessee doth atturn But if the second lease be for the same or for a lesse time as if the first lease be for twenty years and the second lease be for twenty or for ten years to begin at the same time these second leases are for the most part void And yet herein a difference Dier 58. 356
Plow 421. 422. Co. 1. 155. is taken between leases made by matter of record and by writing and leases that are made by word of mouth for if the second lease be made by fine deed indented or poll albeit it be but for the same or for a lesser time and albeit it be a lease of the land it self and not of the reversion yet it will passe the rent reserved upon the first lease if the first lessee atturn and so also it will do without atturnment where atturnment is not needfull But if the second lease be made by word of mouth it is otherwise for a reversion and a rent in this case will not passe without deed and therefore a grant by word doth not passe them And if the second lease be by fine or deed indented then also it will Estoppel work by way of Estoppel both against the lessor and against the lessee so that if the first lease happen by any means as by surrender or otherwise to determine before it be run out then the second lessee shall have it and if there bee any rent reserved upon the second lease the lessee must pay it from the time of the making of the lease And therefore if one make a lease of Dier 112. Plow 432. land to A for ten years and after make a lease to B of the same land from Michaelmas next for ten years and before Michaelmas the first lessee doth purchase the fee simple so that now by this means his term is drowned in this case the second lease shall begin at Michaelmas So if one make a lease to A for twenty years and A make a lease of the land to B for two years rendring Co. 4. 53. rent and after A makes a lease for the rest of his time to C by deed this lease if the lessee for two years doe atturn is a good lease of the rent and reversion and so it is also without Atturnment if there be any consideration given for it for then it is also a good lease for all the rest of the term after the two years So if one make a lease to A for twenty years if he Co. 1. 155. Plow 432. 434. Hil. 6 Jac. Adjudge Finch versus Vaughan live so long rendring rent and after he doth make a lease to B by Indenture for eighty years to begin presently or grant the reversion to beginne at a day past or the like in all these cases if the first lessee atturne the rent will passe but if not it will be a good lease for the land for so many of the yeares as shall bee to come after the first lease ended But if the second lease bee by paroll without a deed the reversion as a reversion will not passe and the grant will bee void if there bee nothing else to help it And in cases where the second Dier 112. lease is void albeit the first lessee surrender his estate or his estate end by a condition yet the second lease is not hereby made good But if the second lease for yeares after another Co. 2. 35 36. lease for life or years be made for mony so as it may be said to passe by way of bargain and sale this may help the matter for in this case albeit it be by word onely it may passe the reversion and the rent also but in most cases it is good for the remainder of the term after the first lease ended And if the second lease be to begin after the end of the former lease in this case the former lease is no impediment at all to the validity of the latter lease but the latter lease is good notwithstanding Any person whatsoever of full age that hath any estate of inheritance Stat. 32 H. 8. cap. 28. Co. super Lit. 44. in fee taile in his owne right of any lands tenements or 5. What Leases or other acts may be made or done by a tenant in tail And what leases made by such a tenant shall be good to binde the issue or him in remainder or others after the death of the tenant in tail And how they shall bind hereditaments may at this day without fine or recovery make leases of such lands for lives or years and such leases shall be good so as these conditions and incidents following be therein observed and kept 1. Such leases must be by deed indented and not by deed poll or by paroll 2. They must be made to begin from the day of the making thereof Co. 5 6. Dier 246. or from the making therof And therfore a lease made to begin from Michaelmas which shall be three years after for twenty one years or a lease made to begin after the death of the tenant in tail for twenty one years is not good But if a lease be made for twenty years to begin at Michaelmas next it seems this is a good lease 3. If there be an old lease in beeing of the land the same must Co. 5. 2. be surrendred or expired and ended within a year of the time of the making of the new lease and this surrender must be absolute and not conditionall also it must be reall and not illusory or in shew onely For factum non dicitur quod non perseverat 4. There must not be a double or concurrent lease in being at Co. 5. ◠one time as if a lease for years bee made according to the statute he in the reversion cannot afterwards expulse the lessee and make a lease for life or lives or another lease for years according to the Statute nor è converso But if a lease for years be made to one and Sparks case Trin. 4 Jac. B. R. afterwards a lease for life is made to another and a letter of Atturney is made to give livery of seisin upon the lease for life and before the livery made the first lease is surrendred in this case the second lease is good 5. These leases must not exceed three lives or twenty one years Co. 5 6. Dier 246. from the time of the making of them And therefore if tenant in tail make a lease for twenty two or for forty years or for four lives this lease is void and that not only for the overplus of time more then three lives or twenty one yeares but for that time of three lives or twenty one years also And it hath been resolved that if tenant in tail make a lease for ninety nine years determinable upon three lives that this is not a good lease But if a lease be made Co. 1. by a tenant in tail for a lesser time as for two lives or for twenty years this is a good lease And if a lease be made for four lives and it happen that one of the lives die before the tenant in tail die yet this accident will not make the lease good but it remains voidable notwithstanding 6. These leases must be of
howsoever the lease bee made it will not binde him that comes in of a remainder over nor him that is the donor And therefore if a tenant in tail make a lease warranted by the statute and after die without issue so that the land doth remain over to another or revert to the donor in these cases neither he in the remainder nor the donor shall be bound by this lease for as to them the lease is void And yet by a common recovery the tenant in tail may make leases of or lay charges upon the land to binde the donor and him in remainder also But otherwise it is of a fine for if tenant in tail make a lease for years by fine this will not barre the donor not the remainder in any case where it is in a stranger And yet if the remainder be in the tenant in tail himself and he make a lease for years by deed according to the Statute or by fine this lease is good and shall bind his own remainder The husband may at this day without fine or recovery make leases 6. What leases or other acts may be made or done by the husband with the lands he hath in fee simple or fee tail in the right of his wife or joyntly with her And what leases made by him of such lands are good Or not And how Stat. 32. H. 8. cap. 28. Co. super Litt. 44. of the lands tenements or hereditaments whereof he hath any estate of inheritance in fee simple or fee tail in the right of his wife or jointly with his wife made before or after the coverture so as there be in such leases observed the eleven conditions or limitations before required in the leases made by tenant in tail and so that the wise doe joyn in the same deed and be made party thereunto and doe seal and deliver the same deed her self in person For if a man and his wife make a letter of Atturney to another to Pasch 7 Jac. B. R. deliver the lease upon the land this lease is not a good lease from the wife warranted by the statute And yet then as in other like cases of leases not warranted by this statute it is a good lease against the husband And when the lease is such a lease as is warranted by the statute it doth bind the husband and wife both and the heirs of the wife but if it be an estate tail it doth not bind the donor nor him in remainder If the husband and wife at the Common Law had joyned in a 26 H. 8. 2. lease of her land without rendring of rent this lease had been void as against the wife and so is the law still If the husband at the Common Law had been seised of land in 26 H. 82. Co. 2. 77. the right of his wife and hee had made a lease for yeares rendring rent and died this lease had been void and so is the law still If the husband and wife at the Common law had made a lease Dier 92. by word rendring rent this lease had been void as against the wife and so is the law still The husband and wife together may by fine or recovery make Stat. 32 H. 8. ch 28. See the womans lawyer 163. what leases they will of her land or charge it for what time they will and such leases and charges will be good against the husband and wife both and their heires also But if the husband alone doe levie any fine of his wives land and thereby make any estate whatsoever this will not bind the wife after her husbands death but she may avoid it And if the husband and wife make a lease of her land rendring rent to them and the heires of the wife as in such leases it ought to be in this case the husband cannot by fine or otherwise grant or discharge this rent longer then during coverture unlesse the wife join in the fine but the rent shall descend remaine or revert in such sort and manner as the land should have done Bishops with the confirmation of the Deane and Chapter Parsons Co. super Lit. 44. Co. 5. 14. 11. 66. or Vicars with the consent of their Patrons and Ordinaries 7. What leases or other acts Bishops or other spirituall or ecclesiasticall persons may make or doe with the lands they have in the right of their churches or houses And what leases made by such persons will bind their successours and others Or not Archdeacons Prebends and such as are in the nature of Prebends as Precentors Chaunters Treasurers Chancellors and such like also Masters and governours and Fellowes of any Colledges or houses by what name soever called Deanes and Chapters Masters or Gardians of any Hospitall and their brethren or any other body politique spirituall and ecclesiasticall Concurrentibus hiis quae in jure requiruntur might by the ancient common law have made leases for lives or yeares or any other estates of their spirituall or ecclesiasticall living for any time without stint or limitation And at this day the Bishops and the rest of the said Spirituall Stat. 32 H. 8. ch 28. 13 El. ch 10 1 Jac. chap. 3. 1 El. ch 19. 14 El ch 11. 18 El. ch 10. 20. persons except Parsons and Vicars may make leases of their spirituall livings for three lives or twenty one years and such leases will be good both against themselves and their successors But such persons may not make leases or estates for any longer time then for three lives or twenty one years and if they doe albeit it be by fine or recovery or it be confirmed by the Dean and Chapter c. yet it is void as against the successor Neither will the leases made by such persons for three lives or twenty one years be good unlesse they have certain conditions and properties required in them These things therefore are necessarily required to be observed in the making of such leases 1. That they have the effect of all the qualities or properties before mentioned and required by the Statute of 32 H. 8. Co. super Litt. 44. Co. 11. 66. 5. 3. 15. in the lease made by the tenant in tail and be made after that pattern viz. That they be by deed indented 2. That they do begin from the time of the making of them 3. 4. That the old lease be surrendred and there be not a concurrent lease save in case of a Bishop And therfore if any such person make a lease for 21 years to one then make a lease for three lives to another this second lease is void And yet if a Bishop make a lease for 21 years to one man then within a year after make another lease to another for 21 years to begin from the making of it this so as it be confirmed by Dean Chapter is resolved to be a good lease 5. That they doe not exceed three lives or twenty one yeares
but they may be for a lesse time 6. That they be of lands or tenements manurable or corporall 7. That they be made of lands that have been commonly let to farm by the space of 20 years before 8. That there be reserved upon them the ancient and accustomed rent payable to the lessor and his successors during the time 9. That they be not made without impeachment of wast 10. That there be livery of seisin upon them c. where it is requisite 11. If the lease be made according Co. 11. 66. 5. 3. to the exception of the Statute of 1 Eliz. and 13 Eliz. and not warrated by the Statute of 32 H. 8. as in the case of a concurrent lease and it be made by a Bishop or any sole Corporation it must be confirmed by the Deanes and Chapters or others that have interest And if a Parson or Vicar make a lease it is not good but during the Parson or Vicars residence according to the Statute of 13 Eliz. chap. 20. and in this case there needs no confirmation at all 12. Some of the leases that are made by the Colledges and houses of the University c. must have some rent corne reserved Stat. 18 El. cap. 20. upon them * Co. 5. 15. 11 66. 10. 58. Dier 370. And most of these points were agreed by Justice Jones and Just Whitlock at Lent Assises at Gloc. 6 Car. But Bishops Deanes Parsons and such like spirituall persons cannot grant the next advowsons of Churches neither can they grant rents out of their spirituall livings but the same charges will be void after their death And if a Bishop suffer an annuity to be recovered against him by a pretence of title of prescription on a Judgment after a verdict or confession or a Parson in such a case pray in aide of the Patron and so suffer an annuity to be recovered this will not bind the successor And yet a Bishop or any such spirituall person may grant ancient offices of trust of necessity or conveniency as the offices of Chancellor Register Steward Bailife or the like with the ancient fees incident thereunto for the life or lives of the grantees and such grants are good albeit they be made by the Bishops of the new erected Bishopricks and that there be not in them the conditions and properties required in the leases before mentioned so as they be confirmed by the Deane and Chapter But they may not grant any new office nor yet adde any new fee to the old offices And therefore if a Bishop grant an annuity pro consilio impenso impendendo where none was before this will not bind the successor And yet if there be an old fee and there is a new fee added to it in this case it seems it is good for the old fee albeit it be void for the new fee. Neither may they grant their offices otherwise then they have been granted And therefore where the ancient grants of the office have been to one it cannot be now granted to two And where the ancient grants have been to two jointly they may not be now granted in remainder one after another Neither may the grants of these offices be longer then for the life or lives of the grantees And in case where the grant is void the confirmation of the Deane and Chapter will not make it good But here note that albeit in all these cases of leases and grants Co. super Lit. 45. 329. 3. 59. 10. 59. 11 73. 78. 5. 5. not warranted by the Statutes aforesaid the Statutes say the leases Note shall be void yet this is to be understood as against the successors and not against the lessors themselves for the leases are good so long as the lessors live or at least so long as they continue in the place And therefore if such a lease be made by a Deane and Chapter or other Corporation aggregate it is good as against the Deane or other head of the Corporation so long as he doth continue in his place And if a Bishop make any lease or other grant not warranted by the Statute of 1 Eliz. or a Deane and Chapter Master and Fellowes of a Colledge or the like make leases not warranted by the Statute of 13 Eliz. cap. 10. these leases are good against themselves albeit they are void against their successors So as if a private Act of Parliament doth entaile land upon a man and appoint him what estates he shall make and that if he make any other estates they shall be void in this case they shall not be void as to the tenant in taile himselfe that doth make them Leases of Benefices with cure are no longer good then the Parson Stat. 13 El. cap. 20. is resident Leases made by Colledges must have reserved upon them the third part of the rent in Corn. See the Statute of 18 Eliz. cap. 20. If one make a lease to another during the will and pleasure of 8. What shall be said a good lease at will Or not Co. super Lit. 55. 56. 270. 14 H. 8. 12. him that letteth or him that taketh or both for so in effect is every lease at will this is a good lease at will So if one make a feoffment in fee or lease for life c. and doe not make livery of seisin and so perfect the estate the feoffee or lessee hath only an estate at will But if a bargaine and sale be made of land and the same is void or a Corporation grant land and the grant is void by this there is no lease at will made Leases for lives or yeares are of three natures some be good in 9. Where a lease for life or years shall be void ipso facto by the death of the lessor or by other meanes Or not but voidable by entry c. And how Co. super Lit. 45. 3. 59. 65. 7 8. law some be voidable by entry and some void without entry And of such as be good in law some be good at the common law as leases made by tenant in fee simple notwithstanding they be for longer time then three lives or twenty one yeares some by act of Parliament as leases made by tenant in taile leases made by a Bishop seised in fee in the right of his Church alone without the Chapter leases made by a man seised in fee simple or fee taile of land in the right of his wife together with his wife for twenty one yeares or three lives according to the Statutes And of such leases as be void also some are void at the common law and that sometimes in presenti as in the cases before of leases for yeares that have no certainty in them or leases for lives made without livery of seisin and the like And some are void in futuro as if a tenant in taile make a lease for yeares warranted or not warranted by the Statute and after die without issue
tenant in taile make a lease for yeares rendring twenty shillings rent and after taketh a wife and dieth without issue and he in reversion or remainder endoweth his wife as he may in this case the lease as against the woman is revived albeit it be void as to him in reversion or remainder So if tenant in taile make a lease for yeares and die without issue his wife enceint with a sonne and he in reversion enter and after the sonne being heire to the entaile is borne in this case the lease which was before avoided by him in reversion if it be such a lease as is warranted by the Statute is good against the issue in taile and therefore is revived againe So if the King make a gift in taile to W to hold by Knights service and W doth make a lease to A for thirty yeares reserving rent and then W dieth his sonne and heire of full age in this case as to the King this lease is void but after livery sued out the lessee may enter againe and if the issue accept the rent the lease is affirmed So if tenant in taile make a lease not warranted by the Statute and die and his heire is in ward in this case the Gardian in the behalfe of the heire may avoid the lease during the wardship but afterwards the heire may affirme it againe if he accept of the rent So if tenant in see simple take a wife and then make a lease for years and dieth and the wife is endowed she shall avoid the lease for her estate but after her death the lease will be in force againe But if the Patron grant the next avoidance and after the Parson Patron and Ordinary before the Statutes had made a lease of the Glebe for years and after the Parson had died and the grantee of the next avoidance had presented a Clerke to the Church who had been admitted instituted and inducted and had died within the terme and the Patron had presented a new Clerke to the Church who had been admitted instituted and inducted in this case the lease had not revived againe No more then if a feme covert levy a fine alone and the husband doth enter and avoid the fine the estate shall revive against the wife after his death for it is avoided as to her also as well as to the husband by his entry See more in Deed supra cap. 4. Numb 7. Where a feoffment gift grant or lease is voidable in some cases it may be avoided by the party himselfe that made it and not 5. Who may avoid a feoffment gift grant or lease that is voidable Or not And how Co. super Lit. 45. Co. 7. 8. Dier 337. 239. by others albeit they be privies as heires executors or administrators and in some cases it is voidable by others and not by the party himselfe and in some cases it is voidable by the party himselfe and by others And in some cases it is avoidable only at some times and in some cases it is avoidable at all times as for examples an Infant if he grant by fine must avoid it during his minority if he live to be of full age otherwise he himselfe or any other shall never Infant avoid it But if he grant by deed this may be avoided at any time by himselfe his heires executors or administrators or his Gardian in his right as the case is But a Lord by escheate cannot avoid a voidable estate made by his tenant being an Infant And if a woman Woman covert covert doe any such act by deed it may be avoided by her husband during the coverture or her selfe after the coverture or her heires c. that are privies after her death And if a man de non sane De nonsane memorie Co. super Lit. 7. 8. memorie doe any such act it may not be avoided by himselfe that is the party denying it but it may be avoided by his heires c. that are privies And if tenant in taile make a voidable lease not warranted by the Statute he may not avoid it himselfe but his issue Tenant in tail may And if he be in ward by reason of a tenure in Capite or Knight service the gardian of the issue during his time may avoid it And if a Corporation spirituall sole or aggregate make leases not warranted Corporations by the Statutes they may not avoid it themselves but their successors after their death translation or other remotion may avoid it or if a Bishop make such a voidable lease the King when the Bishoprick doth come into his hands may avoid it And now we passe to another sort of Assurances that are for some speciall purposes and in some speciall cases only wherein we shall first begin with an Exchange CHAP. XVI Of an Exchange AN Exchange is the mutuall grant of equall interests the one in 1. Exchange or Eschange Quid. exchange for the other Or it is where a man is seised or possessed Terms of the law tit Exchange Finches ley 27. of land in fee simple fee taile for life or yeares or is possessed of goods and another is seised or possessed of other lands or possessed of other goods in the like manner and they doe exchange their lands or goods the one for the other And in this there is a doble grant for each of them doth grant that which is his to the other This manner of conveyance which heretofore was very frequent is sometimes made by word without any writing and sometimes * Co. super Lit. 50. Perk. Sect. 253. it is made by deed or in writing and which way soever it be made it must be made by this word Exchange which is a word so appropriated to this thing as the word Frankmariage is to a gift in Frankmariage neither of which can be made or described by any circumlocution The fruit and effect of an exchange is that it doth give the interest Co. 4. 121. 15 E. 4. 3. 9 E. 4. 21. Bro. Eschange in toto Fitz. Eschange in toto and after the property of the things exchanged to either party 2. The effect and fruit of it according to the agreement And if the exchange be of lands or tenements of any estate of Inheritance or freehold whether it be by word or deed it hath a condition and a warranty in law incident and annexed to it as a thing made by the word Exchange and tacite implied in every grant of exchange A condition to give a reentry upon all the land given in exchange if he be put out of all or part Condition of the land taken in exchange and a warranty to enable him to vouch and to recover over in value so much of his own land againe Warranty given in exchange as shall be recovered from him of the land taken in exchange if he be sued for it So that upon every exchange either party
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
feoffment is good And if one assign a woman her dower in exchange for land this shall not take effect as an exchange but it shall enure to be a good assignment of dower If two doe exchange land by deed and limit no estates this shall 19 H. 6. 27. Perk. Sect. 275. 5. How an Exchange shall be construed and taken be taken for estates for life and the exchange is good but if an expresse estate be limited to one and no expresse estate to the other it is said this is not good and that construction of law wil not help it If an exchange be made between two men of two acres of land Perk. Sect. 251. by deed and in the Habendum it is set down that each of them shal have the acres given in exchange with divers other acres not expressed in the premisses this addition shall be taken as surplusage and the exchange shall be good for the two acres See more in Exposition of Deeds If after an exchange is made before or after the parties enter all Perk. Sect. 286. Co. 4. 122. Perk. Sect. 299. Bro. Exchange 12. 6. Where an Exchange shall be determined or the nature of it changed by matter ex post facto And how And where not or part of the land given to either party be recovered from him upon an elder title as by an entry upon a condition broken alienation in Mortmain or upon a disseisin in these cases if that party enter again upon his own land which he gave in exchange as hee may hereby the whole exchange is determined But if after the exchange is perfect one of the parties doe enter upon the land he doth give in exchange this doth not make void the exchange neither may the other party hereupon enter upon the land he doth give in exchange but he may have an assise or an action of Trespasse against the other And yet if an exchange of a common for a way Perk. Sect. 299. or a rent or the like if the one party deny the common it hath been said the other party may deny the way or the rent Sed quaere If an exchange be made of fee between two of a Manor whereof Bro. Exchange 8. Perk. Sect. 297. the one half is in tail and the other half is in fee simple and the tenant in tail that made the exchange die and his issue disagree to it so that the exchange of the tailed land is become void this doth determine the whole exchange for when an exchange becometh void in part it becometh void in all and untill it be avoided it is good for all As if one be seised of white acre and he exchange white acre and black acre which is none of his with another for two other acres this shall continue for a good exchange and not be avoided untill he that hath right to black acre doth evict him that hath it in exchange If an exchange be made by tenant in tail and his issue after his Co. 4. 122. Perk. Sect. 296. 294. 290. 298. death waive the possession of all or part of the land taken in exchange and disagree to the exchange hereby the whole exchange is determined So if the wife after the husbands death the infant at his full age or the heir of him that is de non sane memorie disagree to the exchange of the husband the infant or him that is de non sane memorie hereby the whole exchange is determined and no subsequent agreement can make it good again If two doe make an exchange by word of mouth and after before 15 E. 4. 3. either of them enter they make Indentures of the lands exchanged and grant the same from one to another it seems hereby the nature of the exchange is changed and the exchange determined The parties themselves and all privies and strangers for the most Perk. Sect. 285. Co. 1. 105. Dier 285. Perk. Sect. 290. 294. 298. Co. 1. 98. part may take advantage of such exchanges as are void for the defects 7. Who may take advantage of a void or voidable Exchange Or not And when Infant before named But when the exchange is only voidable contrà And therefore when an exchange is made by an infant the infant himself at his full age or his heir and none other may avoid it And when an exchange is made by a tenant in tail the issue in tail after the death of his auncestor and none other may Tenant in tail avoid it And when an exchange is made by the husband or husband and wife of the wives land the wife after the husbands death Husband and wife Home de non sane memorie or heir of the wife after her death and none other may avoid it And when an exchange is made by a man of nonsane memorie his heir after his death and none other may avoid it But in all these cases of infant tenant in tail woman covert and a man de nonsane memorie and where lands are recovered by an elder title the other party may not enter and avoid the exchange untill the infant issue in tail woman or heir of him that is de nonsane memorie or him that doth lose the land by an elder title doth first enter If an infant exchange lands and after at his full age occupy the 8. Where an Exchange voidable at first doth become good by matter ex post facto Or not lands taken in exchange for his own lands hereby the exchange is Co. super Lit. 51. 12 H. 4. 11. Perk. Sect. 290. 294. Fitz Eschange 13. Perk. Sect. 291. 279. 293. 298. made good So if tenant in tail exchange his intailed lands with another and after his death the issue occupy the lands taken in exchange by his auncestor hereby the exchange is made good for the life of the issue in tail So if the husband and wife exchange the lands of the wife for other land and she after her husbands death Tenant in tail Husband and wife agree to it and enter into and agree to the lands taken in exchange hereby the exchange is made good but if the husband alone make an exchange of his wives land and she after his death agree to this and enter into the land it seems this will not make the exchange good And if a man seised of land in right of his wife in fee thereof infeoff a stranger and take an estate back again to him and his wife and a third person in fee and they three join in exchange of the same land in fee for other lands to a stranger in fee and the exchange is executed and the husband dieth and she doth occupy the land taken in exchange with the other third person hereby the exchange is made good If a man de nonsane memorie make an exchange and his heir after his death enter into the land taken by his auncestor in exchange and agree to
uncapable in himself or è contra In some cases also it wil lessen and diminish rents or services But it cannot ne will change the nature of the service into some other kind of service nor increase it into a greater service If a Bishop Dean Archdeacon Prebend or the like make any Co. super Lit. 300 301. Co. 10. 62. 5. 3. Dier 145. 273. 349. 338. 339. 61. 4. Where the confirmation of some persons is needfull to perfect the grant of others Or not And how it may iâ— done lease of the land they have in the right of their Bishoprick Deanery Archdeanery or Prebendship not warranted by the Statute of 32 H. 8. and within the other Statutes it seems this lease must be confirmed by the Dean and Chapter by their common seal and if there be two Chapters it must be confirmed by them both or otherwise it is not good But if the lease bee such a lease as is warranted by the Statutes the Bishop may make it without the confirmation of the King the Patron and Founder of Bishopricks or the Dean and Chapter And so also it seems of the rest And a Corporation aggregate as Dean and Chapter Master and Fellows and the like may grant without any confirmation of the Founder and this grant will be good If a Bishop c. grant an ancient office belonging Co. 10. 62. to his Bishoprick albeit it be but for the life of the grantee yet it must be confirmed by the Dean and Chapter otherwise it is not good If a Parson or Vicar had made any lease for longer time Dier 52. stat 13 El. ch 2â— then his own life it must have been confirmed by the Patron Ordinary But at this day albeit it be confirmed by the Patron and Ordinary yet the lease is good for no longer then during the Parsons ordinary residencie except it be impropried If tenant for life grant a rent-charge to I S and his heirs in this Co. 1. 147. case he in reversion must confirm it otherwise the grant of the rent will be good for no longer then the life of the tenant for life Where a man hath an interest in any lands tenements rents commons Co. 8. 167. Dier 277. felons goods or the like by grant of any of the Kings of the Realm he need not have the confirmation of any or of every succeeding King Also it seems grants of Fairs Markets Warrens Dier 327. Lit. Bro. 203. Kelw. â—45 188. and the like made by one King will be good in law against his successors without any confirmation But all such as have any judiciall or ministeriall offices commissions and authorities derived from the King must have the confirmation of every succeeding King otherwise they may lose them * 5. What confirmations may be made And what shall be said a good expresse or implied confirmation Or not And by what words it may be made 1. To confirm or alter the quality of the estate of him â—o whom it is made In every good confirmation tending to confirm an estate or alter the quality of it these things must concur 1. There must be a good confirmor and a good confirmee and a thing to be confirmed as in other grants and the deed must bee well sealed c. 2. There must be a precedent rightfull or wrongfull estate in him to whom the confirmation is made in his own or in anothers right or at least he must have the possession of the thing whereof the confirmation is to be made that may be as a foundation for the confirmation to work upon As if feoffee on condition make a feoffment Co. 1. 146. 9. 142. 7 H. 6. 7. over and the feoffor confirm his estate to him to whom the second feoffment is made and his heirs this is a good confirmation to make his estate absolute And if lessee for life make a feoffment in fee or Lit. sect 516. lease for years and the first lessor confirm this second estate it seems this is a good confirmation And if one disseise me of land Co. 9. 142. 6. 15. Perk. sect 86. Lit. sect 518. 521. 11 H. 7. 29. 28. I may after confirm the estate of the disseisor or of his heir if he be dead or of his feoffee if he have aliened it and this will make his estate good for ever And if the disseisor make a lease for life or years of it I may confirm the estate of the lessee and this will make it good for the time * Co. 1. 144. Lit. sect 527. 529. 11 H. 7. 28. Co. super Lit. 300. Lit. sect 547. 11 H. 7. 28. And if one make a lease for life absolute or a feoffment in fee or lease for life on condition or be disseised of land and the lessee for life feoffee or disseisor doth grant a rent out of the land in fee and the lessor feoffor or disseisee doth confirm the estate of the grantee this doth make good the grant for ever And so also if the heire of a disseisor that is in by descent grant a rent-charge and the disseisee confirmeth it this is a good confirmation And if an Infant make a lease for 20 years and the lessee doth make a lease to another for all or part of the time and Infant the infant at his full age doth confirm this second lease this is a good confirmation and doth perfect the lease for it is a rule That which I may defeat by my entry I may confirm by my deed But if there Co. super Lit. 295. 301 Dier 263. be no precedent estate on which the confirmation may work or the estate be such an estate as is meerly void then is the confirmation void and cannot take effect as a confirmation as for example If a man assign dower to a woman that hath nothing to do with it or a Court that hath not power doth make leases by commission or an estate that was upon condition is avoided by entry or a lessee surrender or a disseisee enter upon a disseisor and afterwards he that hath the rightfull estate confirm their estates so defeated and gone these confirmations are void Debile fundamentum fallit opus And a confirmation to him that hath nothing in the land is void And hence it is that if one confirm all his estate that he hath granted to another when in truth he hath granted none at all this is void And so also it is if there be an estate and no possession as if a disseisor make a lease for years to begin at Michaelmas and before 4 H. 7. 10. the day the disseisee doth confirme the estate of the lessee for years it is said this is not a good confirmation sed quaere 3. The Dier 109. confirmor must have such an estate and property in the thing wherof the confirmation is made as he may be thereby enabled to confirm the estate of the confirmee
But if he confirme the land for twenty yeares it Noâ—e may be good for that tine only and no longer wherein as in divers other cases before observe that the very words whereby the confirmation is made are much to be heeded for Parols font plea. If tenant in taile or for life of land letteth it for yeares and after Lit. Sect. 606 607. 610. confirme the land to the lessee for yeares To have and to hold to the lessee and his heires for ever by this the lessee hath only an estate for terme of the life of the tenant in taile or for life and therein his lease for yeares is extinct If tenant for life doth grant a rent to another and his heires during Co. 1. 147. super Li. 301. the life of the tenant for life and the lessor confirme to the grantee and his heires this shall be construed to be an estate for life only and no enlargement of the estate But if tenant for life grant a rent-charge in fee and the lessor confirme it this shall be construed to be a confirmation of the fee simple See more in Exposition of Deeds cap. 5. in toto And more also in the chapter of Release whereunto we are now come in the next place CHAP. XIX Of a Release A Release is the giving or discharging of the right or action Terms of the law West Symb. lib. 2. Sect. 466. 1. Release Quid. which a man hath or may have or claime against another man or that which is his Or it is the conveyance of a mans interest or right which he hath unto a thing to another that hath the possession thereof or some estate therein And this albeit it may be made by other words as Dedi Concessi or Renunciasse or such like yet it is most commonly and properly made by these words Remisisse Relaxasse quietum clamasse all which are much to one purpose He that Relessor Relessee makes the release is sometimes called the relessor and hee to whom it is made the relessee There are two kindes of releases like unto those of confirmation Co. super Lit. 264. 265. 2. Quotuplex viz. a release expresse or in deed and that is a purposed release when the act done or deed made is intended a release And this is alwaies done by writing And then it is defined by some to be an Instrument whereby estates rights titles actions and other things be sometimes extinguished sometimes transferred sometimes abridged and sometimes enlarged which is after this manner Noverint c. me A de Bremisisse relaxasse omnino de me vel prome hered meis quietum clamasse C de D totum jus titulum clameum que habui habeo vel quovismodo in futuro habere potero de in unto mesuagio cum pertin in F c. And a release implied or in law and that is when the law by intendment and construction and by way of consequent doth make a release of an act done to another purpose And this is sometimes by writing and sometimes without writing These releases also are sometimes of a bare and naked right and sometimes of a right accompanied with some estate or interest And sometimes they are of actions reall or in lands or tenements and sometimes of actions personall of or in goods or chattells and sometimes of actions mixt partly in the realty and partly in the personalty A release is much of the nature of a confirmation for in most 3. The nature and operation of it in generall Co. super Lit. 193. 273. 277. Co. 1. 147. Lit. Sect. 606. 459. 465 466. 446. things they agree and produce the like effects This therefore is said sometimes to enure by way of mitter le estate i. by way of giving or transferring or enlargement of an estate or interest and so doth give some new interest or estate to him to whom it is made And sometimes it is said to enure by way of mitter le droit only i. by way of giving transferring and discharging of a right title or entry unto him to whom it is made And so it doth sometimes perfect an estate that was imperfect and defeasible before and enure by way of entry and feoffement And sometimes also it doth enure to make a conditionall estate absolute And sometimes also it doth worke and enure by way of extinguishment or discharge And then also sometimes it doth enure by way of discharge or extinguishment as against all persons and so as that whereof all persons may take advantage And sometimes it doth enure only as a discharge against some persons only and as to or against other persons by way of Mitter le droit And some of these in deed enure by way of extinguishment for that he to whom the release is made cannot have the thing released And some of them have some quality of such releases and are said to enure by way of extinguishment but in truth doe not for that he to whom the release is made may receive and take the thing released And in some cases also a release like a confirmation doth enure by way of abridgement But a man cannot barre himselfe hereby of a right that shall come to him hereafter And therefore it is held that these words used in releases quae quovismodo in futuro habere potero are to no purpose Lands tenements and hereditaments themselves may be given 4. What things may be released Or not And how and transferred by way of release and all rights and titles to Co. 10. 48. super Lit. 268. 269. 266. lands may be given barred and discharged by release and so also may rights and titles to goods and chatteâ—ls Also all actions reall personall and mixt may be given discharged or extinct by release for howsoever rights and titles of entry cannot be granted by act of the party nor any action may be granted from one man to another by act of the law or the party yet all these may be released to the terretenant And a right to a free hold or Inheritance seigniory or rent in presenti or futuro may be released five manner of waies and the first three waies without any privity at all 1. To the tenant of the free hold in deed or in law 2. To him in the remainder 3. To him in reversion The other two waies in respect of privity without any estate or right as by demandant to vouchee donor to dones after the donee hath discontinued Also conditions annexed to estates powers of revocation of Bro. Release in toto uses warranties covenants tenures services rents commons and other profits to be taken out of lands may be discharged extinguished determined by release to the tenant of the land c. Also possibilities of land c. if they be neere and common Co. 10. 47. 51 52 5. 7â— 71. super Lit. 265. Lit. Sect. 446. Co. 1. 111. 111. Dier
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
respect of the estate of the relessor discharge or extinguish any right or title of lands it is also further requisite 1. That he that doth make it hath at the time of the release made some right or title to release As where one doth disseise me of land and I release to him all my right in the land this is a good release So if one disseise my tenant for life and I being the next in remainder or reversion in fee do release to him that did make the disseisin this is a good release So if the husband make a lease for life and then take a wife and dieth and the wife release her dower to him in reversion this is a good release And so also if after the mariage a man make a lease for life the remainder in fee and shee release all her right to him in remainder in fee or to him in reversion this is a good release and will barre her for ever And therefore if the Relessor have only a possibility of a right Lit. Sect. 446. Co. 10. 47. 42. super Lit. 265. or a right happen to come to him after the release this is not sufficient to make the release good And therefore if the father be disseised and the son before his fathers death release all his right to the disseisor and after the father dieth so that the right doth descend this is no good release to bar the Relessor of his right So if there be grandfather father and son and the father disseise the grandfather and make a feoffement and the son release in the life time of his father and after the father and grandfather die this release in this case will not bar him So if a lease Co. 10. 57. be made for life the remainder to the right heirs of I S and the lessee is disseised and the eldest son of I S living his father doth release to the disseisor this release is void So if the conusee of a statute c. doe release to the conusor all his right in the land this is void Co. 5. 70. and he may sue execution after notwithstanding Or if the Relessor Co. super Lit. 265. have only a power this is not sufficient to make the release good And therefore if a man by his will devise that his executors shall sell his land and dieth and the executors release all their right and title in the land to the heirs this release is void 2. In all cases of a release of a bare right of a freehold in lands 2. In respect of the estate of him to whom the release is made or tenements he to whom the release is made must at the time of Co. super Lit. 267. the making thereof in any case have the freehold in deed or in law in possession or some state in remainder or reversion in deed and not in right only in fee simple fee tail or for life of the lands whereof the release is made for rights of entry and actions and the like are not to be transferred to strangers but are thus to be released and such releases are good As if the disseisee release to the disseisor himself who hath the freehold in deed or to the heir of the disseisor before his entry who hath the freehold in law or to the lessee for life of the disseisor these releases are good So if a disseisor make a lease to A and his heirs during the life of B and A die and the disseisee release to his heir before his entry this is a good release So if a fine sur conusance de droit come ceo c. or sur conusance de droit only which is a Co. super Lit. 266. 275. Lit. sect 448. 1 H 6. 4. Dier 302. feoffment on record be levied or if tenant for life by agreement of him in the reversion surrender to him in the reversion or if a man doe bargain and sell his land by deed indented and inrolled or uses are raised by covenant on good considerations in all these cases the conusee him in reversion bargainee and cestuy que use have a freehold in law in them before entry And therefore a release to them of the right of the land by him that hath it is good and will bar the Relessor But otherwise it is in cases of Exchange Partition or upon Livery within the view for in these cases no release is good untill an actuall entry made for till then they have neither freehold in right nor law So if a disseisor make a gift Lit. Sect. 449 in tail or lease for life or years of the land and keep the reversion and then the disseisee or his heir release to the disseisor all his right this is a good release to bar his right for ever So if Co. super Lit. 260. Lit. Sect. 455 456. the heir of the disseisor be disseised and the first disseisee doe after release to him all his right this is a good release to bar him So if a donee in tail discontinue in fee and the donor release to the discontinuee and die this is a good release against the donor So if the donee in tail be disseised and after the donor release to the donee all his right this is good but in this case nothing of Extinguishment the reversion will passe by the release for the donee had then nothing but a right But if any rent be reserved on the estate tail the rent is gone by the release So if a lease be made to one for life rendring rent and the lessee is disseised and the lessor release to the lessee and his heirs all his right in this case albeit the rent be extinct yet nothing of the right of the reversion doth passe And yet if a woman that hath right of dower release to the guardian in Chivalry this is a good release and her right or title of dower is gone But if a disseisor make a lease for years and the disseisee release to the lessee for years this release is void because he hath no freehold But if he make a lease for life and the disseisee release to the lessee for life this is a good release So also a release to the disseisor after the lease for years made is good And Co. super Lit. 265. if lessee for years be ousted and he in the reversion disseised and the disseisor make a lease for years and the first lessee release to him this is a good release Also in some cases a release made to Lit. Sect. 448 449 450 451. Co. 8. 151. one that hath neither freehold in deed nor freehold in law is good when he hath an estate in reversion or remainder as in the case before where a release is made by the disseisee to the disseisor after he hath made an estate for life So if the demandant in a reall action release to the tenant that comes in by
doe any thing against them By this release also of all actions a debt due to be paid upon a statute or an obligation at a day to come albeit the release be before the day is discharged and by this also the statute it self if it be at any time before execution is discharged And if one be to pay forty pound at four days and some of the days are past and some to come and the debtee make such a release by this the whole debt is discharged Also in a Scire facias upon a Fine or a Judgement this release is a good plea in bar But this release of all actions will not discharge Executions or bar a man of taking out of Executions except it be where it must bee done by Scire facias Neither will it discharge or bar a man of suits by Audita Querela or writ of Error to reverse an erroneous judgement neither will it discharge covenants before they be broken nor will it discharge any thing for which the relessor had no cause of action at the time of the release made as if a woman have title of dower and doe release all actions to him that hath the reversion of the land after an estate for life or a man is by an award to pay me ten pound at a day to come and before the time I make such a release or I make a lease rendring rent or an annuity is granted to me and before the rent-day I make the lessee or the grantor such a release in these cases and by a release in these words without more the dower debt rent or annuity is not discharged And if a man have two remedies or means to come by land Lit. sect 496 497. as action and entry or by goods as action and seisure or the like in this case by a release of all actions he doth not barre himself of the other remedy Et sic è converso And if a man doth covenant to build an house or make an estate and before the covenant broken the covenantee doth release unto him all actions by this the covenant it self is not discharged And yet after the covenant is broken this release will Co. super Lit. 292. discharge the action of covenant given upon that breach By a release of all a mans right into any lands or tenements Of all right Co. 8. 151. Plow 484. 6 H. 7. 8. Co. 3. 29. 6. 1. super Lit. 345. without more words is released and discharged all manner of rights of action and entry the relessor hath to in or against the land for there is jus recuperandi prosequendi intrandi habendi retinendi percipiendi possidendi and all these rights whether they accrue by fine feoffment descent or otherwise are extinct and discharged so that if the relessee have gotten into the land of the relessor by wrong by this release the wrong is discharged and the relessee is in the land by good title Also by this release are discharged and released all titles of dower and titles of entry upon a condition or alienation in mortmain And if a woman have title of dower after an estate for life and make such a release to him in reversion this doth barre her By such a release also from the Lord to the tenant the services are extinct But this release will not bar a man of a possibility of a right Co. 10. 47. super Lit. 289. that he hath at the time of the release or of a right that shall descend to him afterwards And therefore if the conusee of a statute before Execution release all his right into the land to the terretenant or the heir of the disseisee in the life-time of his father doe release to to the disseisor all his right these releases doe not bar them Nor will this release bar a man of an Audita Querela and such like things And yet if the tenant in a reall action after the demandant hath recovered the land release to him all his right in the land this doth bar him of a writ of Errour for any errour in the proceeding in that suit And if there be Lord and tenant by fealty and rent and the Co. super Lit. 150. Dier 157. Lord by his deed reciting the tenure doth release all his right in the land saving his said rent by this release the right of the seigniory save only of the seigniory of the rent and fealty is extinct And if the Lord release to his tenant all his right to the land and seigniory salvo sibi dominio suo c. hereby the services only not the tenure is extinct And if one have a rent-charge out of my land and make such Perk. Sect. 644. a release of all his right to the land to me that am the terretenant without exception of the rent hereby the rent is extinct and gone for ever By a release of all a mans title into lands or tenements without Kelw. 484. 6 7 8. Co. super Lit. 265. 345. more words is released and discharged as much as is released Of all title by the release of all a mans right and both these releases have the like operation for howsoever title strictly and properly is where a man hath lawfull cause of entry into lands whereof another is seised for which he can have no action yet it is commonly taken more largely and doth include a right also And Titulus est justa causa possidendi quod nostrum est By a release of all entries or rights of entry a man hath into Co. 8. 15â—â— Or entry or right of entry lands without more words a man is barred of all right or power of entry into those lands upon any right whatsoever And if a man have no other means to come by the land but by an entry and he hath released that by these words he is barred for ever But if one have a double remedy viz. a right of entry and an action to recover his right by and then release all entries by this he is not barred of his action By a release of all actions reall without more words are discharged Of actions reall Lit. sect 492 493. 495. Co. 8. 151. Lit. sect 115. 500. Co. super Lit. 288 289. all reall and mixt actions then depending and all causes of reall and mixt actions not depending And therefore all causes of suing of assises writs of Entry Quare Impedit actions of wast and the like which the party hath at the time of the release made are hereby discharged But this release will not bar him that doth make it of any causes of action that shall arise and accrue afterwards Neither will it bar him of an appeal of death or robbery writ of Error or any such like thing Nor of any thing which a release of all actions will not bar And yet when land is to be restored or recovered by judgement in a writ of Error this
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
Adiudg â—il 39 Eli. Co. B. yearly after untill I S he made Knight in this case albeit I S bee made Knight before Michaelmas yet the first 10l at Michaelmas must be paid If the condition bee thus That if the Obligor shall for ever Adiudge M. 18. Iac. B. R pay yearly to the Obligee c. 10l at the two usuall Feasts by equall portions or if his heires shall at any time hereafter pay 100l at Harbert versus Rochsey one payment to the Obligee that then the Obligation to be void in this case albeit the Obligor hath election which of these two things to doe yet because the intent is apparant that one of these things should be done if therefore the 100l be not paid before the first Feast the 10l must be paid yearly If the condition of an obligation from A to B be thus That Dyer 421 43. To warrant land and for quiet enjoying whereas A hath sold to B certaine Meadow in Dale that the said A shall warrant the same against Lord and King and all others if the said B shall peaceably enjoy it to him and his heires of the Lord of the Mannor of M by the services due after the custome c. in this case the substance of this being for quiet enjoying it shall be extended that way and albeit it be not said what he shall warrant yet it shall be taken the Land in question and the warranty shall be construed to last only for the life of B and not to extend to any new titles after the Covenant especially such as are by the act and default of the Obligee himselfe as if he commit a forfeiture and the Lord enter or the like If the condition be That the Obligor shall sufficiently prove Perk. Sect. 791. 10. Ed. 4 11. To prove a thing such a thing this shall be taken for proofe by enquest and accordingly it must be done But if the condition be that it shall be done by such a time or before such persons as when or where such Golds case in Harberts Rep. 127. proofe cannot be had then it is otherwise Where the word proofe is put generally it shall be understood of proofe by Iustice but when the parties agree upon another form of proofe that shall prevaile against that which is but instruction of Law If one be bound in an obligation with condition to suffer his wife Curia Trin. 7. Iac. Co. B. To suffer his wife to make a Will to give to her kinsfolks children or others portions of his goods to the value of 100l and that he will perform it and she give part to one and part to another in this case the husband must performe it accordingly But if the condition be to suffer her to give to A and B 100l and that he will perform it and she give 100l to A he is not bound to perform this If the condition be That hee shall perform his wives Will so it Adiudge Hil. 7. Iac. B. R doe not exceed 20l. and shee make a Will and devise 100l in this case hee is not bound to perform the Will for the 20. If the condition of an Obligation be That the Obligor shall infeoffe 5. In respect of the manner and order of of doing the thing and other matters Kelw. the Obligee and such others as he shall name by a day in this case the Obligee must doe the first act viz. name the others otherwise the Obligor doth not forfeit his obligation by the not doing of iâ— But if the condition be to infeoffe me or such others as I shall name before such a day in this case if I doe not name others it seemes he must enfeoffe me before the day at his perill If the condition be that the Obligor shall make such an estate Coo. 5. 25. 7 Ed. 4. 13 Perk. Sect. 775. of Land as I S shall advise I S must first advise and this must be made known unto the Obligor ere he is bound to doe any thing and if he never advise he is never bound to doe any thing for it is in this case as if one bee bound to stand to the award of I S and I S never make any or make a void award which is all one If the condition be to make such a discharge in such a Court Coo. 5. 23 as the Obligee or his counsell shall advise in this case the Obligee must doe the first act viz. advise and give notice of the advise to the Obligor before he is bound to doe the thing But if the condition be to make such a discharge in such a Court such a day as the Judge of that Court shall advise in this case the Obligor must at his perill procure the Iudge to advise a discharge and it must be done that very day or the obligation will be forfeit If the condition be to pay 20 l. to the Obligee when he doth Per. Iust Nichols M. 13 la Co. B. come to London in this case the Obligee must doe the first act viz. make known to the Obligor when he doth first come to London for otherwise it seemes the Obligor is not bound to pay the money If the condition be that the Obligor shall levie a fine to the Obligee Coo. 5. 127 Dyer 371. before such a day the Obligee must doe the first act viz. sue out the Writ of Covenant If the condition be that the Obligor shall deliver 20 Clothes â—1 Ed. 4. 52 to the Obligee such a day the Obligee paying for every cloth immediately after the delivery 20 l. in this case the clothes must beâ— delivered albeit the Obligee refuse to pay the money but if immediately after be left out it seems the Obligor is not bound to deliver the cloth unlesse the Obligee first pay the money If the condition be that the Obligor and his heires shall at any Coo. 2. 3 4 Dyer 337. time upon request made doe any act c. that the Obligee shall require c. and the Obligee tender a Release or other Deed to seale in this case if the Obligor or his heir that is to seale the Deed be an illiterate man he may refuse to seale it untill he can get some body to read it unto him but he may not refuse or delay to scaâ—e it untill he can have a Lawyers advise upon it but he will forfeit his Obliligation If the condition be to doe any thing upon request the Obligor Perk. Sect. 773. Coo. 5. 21. untill request made is not bound to doe any thing towards it neither can he forfeit his obligation till them And yet if in this case the Obligor disable himselfe to doe the thing he hath undertaken to doe upon request before the request made the obligation may bee so feit without any request made If the condition be that the Obligor shall within a
certaine 14 H. 8. time surrender such land of his for an Annuity of so much as they shall agree upon and they agree upon 10l per annum in this case the Obligor is not bound to make the surrender untill the Annuity be made and tendred unto him If the condition bee to deliver to the Obligee an obligation Hil. 37. Eli. Co. B. Greeinghams case adiudg wherein the Obligee is bound c. or to seale and deliver to the Obligee such a Release of it as shall be devised by the counsell of the Obligee before Michaelmas and the counsell doe not advise any Release before Michaelmas in this case the Obligor is discharged of the obligation for the Obligee is to doe the first act If A be bound to B in an obligation with condition that A and Trin. 4. Iac. B. R. his wife shall levie a fine of land to C and D and their heires and at their costs and charges this shall be construed to be at the costs of the Obligor and not at the costs of the Conusees but if the word and be omitted perhaps it may be of otherwise If the condition be thus That if the wife die before Michaelmas Dyer 17. without issue of her body then living that the obligation shall bee void in this case then living shall relate ad proximum antecedens and not to the death of the wise and therefore if she hath issue and die and after before Michaelmas the issue dyeth also the obligation is void If the condition be that if the Obligor shall waste the goods of the Obligee his master and this waste within three Moneths after Golds case M. 13. Iâ— due proofe of it either by confession or otherwise bee notified to the Obligor that the Obligor shall satisfie the Obligee for it and the Obligor doe confesse the waste under his hand and seale in this case it seemes this proofe though it be extrajudiciall is sufficient When the condition of an obligation is to doe two things by a Coo. 5 22 super Lit. 207. Dyer 262. 15 H. 2. 4. H. 7. 4. day and at the time of making of the obligation both of them are Conditions Impossible possible but after and before the time when the same is to be done one of the things is become impossible by the act of God or by the sole act and laches of the Obligee himselfe in this case the Obligor is not bound to doe the other thing that is possible but is discharged of the whole obligation But if at the time of the making of the obligation one of the things is and the other of the things is not possible to be done he must perform that which is possible And if in the first case one of the things become impossible afterwards by the act of the Obligor or a stranger the Obligor must see that he doe the other thing at his perill And when the condition of an obligation is to doe one single thing which afterwards before the time when it is to bee done doth become impossible to be done in all or in part the obligation is wholy discharged and yet if it bee possible to be done in any part it shall be performed as neare to the condition as may be If the condition be to doe one of two things as to make a feoffment to me or pay me 20l. in this case if the obligor doe either 21 Ed. 3. 29 of them it is sufficient But if the condition be in the copulative as to enfeoffe me and pay me 20l. in this case the doing of one of them will not suffice but he must doe both If the condition be to pay to A B and C 30 l. a pece within a week after they come to 18 years of age or within 40 dayes after Per. Iustice Dodridge M. 2. Car. B. R. their dayes of marriage after notice given thereof which shall first happen in this case this notice must goe to both the parties so that notice must be given when they are 18 years of age otherwise and untill notice given it seemes the obligor is not bound to pay the money See more in Condition Numb 8. and Covenant Numb 6. The matter of a condition of an obligation is sometimes affirmative 8. When the Condition of an Obligation shall be said to be performed and the Obligation saved or not and compulsory and doth consist of something to be done and sometimes it is negative and restrictive and doth consist of something not to be done the not doing in the first case and doing in the latter case causeth the obligation to bee forfeit and the doing in the first case and not doing in the latter saveth the obligation If one be bound in an obligation to me with condition to enfeoffe To make a feoffment Coo. super Lit. 207. plo â— 7â— 17 Ed. 4. 3. me of land and the obligoâ— doe first make a Lease to me of it and afterwards he doth make a Release of it to me and my heires this is a good performance of the condition If a condition be to make me a feoffment of land and he tender me a feoffment and I refuse it by this the condition is performed So Tender and Refusall Perk. Sect. 784. Fitz. Barre 82. Perk. Sect. 758. 15 Ed. 4. 5. if the condition be to make a feoffment to my use and when it is is made I refuse it this is a good performance of the condition But if a man bind himselfe in an obligation to me with condition to make feoffment to a stranger and hee tender the feoffment to the stranger and he doth refuse it this is no good performance of the condition but the obligation is forfeit If the condition be to enfeoffe me and my wife and he tender it to me and I refuse it it seemes this is a good performance If one bind himselfe in an obligation to me with condition to 3 H. 7. 4. 4 H. 7. 4. Perk. Sect. 757. make me a feoffment of the Mannor of Dale by a day and he before the day grant a rent-charge out of the same Mannor to a stranger and afterwards and before the day also he doth make me a feoffment of the land this is a good performance of the condition and the grant of the rent no breach thereof But if the obligor sell away part of the Mannor before or make a feoffment to me but of a moity or a third part of the Mannor this is no good performance of the condition And if in this case the obligor before the day take a wife and before the day make his feoffment according to the condition but the marriage doth continue untill after the day in this case it seemes the condition is broken If the condition be that the obligor shall enfeoffe me of the Mannor Acceptance Perk. Sect. 749. 759. Dyer 1. Perk. Sect. 751. 9.
H 7. 1â— 3 H 7. 4 27. H. 8. 1. 14. H. 8. 15. 10. H. 7. 14. of Dale and hee make a feoffment of the Mannor of Sale and I accept thereof it seemes this is no performance of the condition and that my acceptance in this case will not help So if the condition be to make me a feoffment of land and he give me mony a horse or the like in recompence of this and I accept thereof this is no good performance of the condition And the like Law is in all cases where the condition is to doe any collaterall thing as to account build a house enter into a Recognisance or the like and the obligor doth give and the obligee accept some other thing in liew thereof And so also it is where the condition is to make a feoffment to a stranger and the obligor give and the stranger take another thing in liew thereof But if the condition be to enfeoffe me of land such a day and he make and I take the feoffment before the day this is a good performance of the condition If the condition be to enfeoffe me or my heirs in the disjunctive 14 H. 8. 15. Coo. 5. 112. and the obligor enfeoffe me and my heires this is a good performance of the condition for it is impossible to enfeoffe my heirs whiles I live and when two things are to be done by a condition whereof the one is possible at the time of making the obligation and the other is not in this case it is sufficient if he doe the thing which is possible If the condition be to make me a feoffment or pay me 20 l. if the 21 Ed. 3. 9. obligor doe either of them it is sufficient But if the condition be to infeoffe me and pay me 20 l. in this case the obligor must do both or the condition will not be performed Et sic de similibus If the condition be that the obligor shall make me a sufficient Perk. Sect. â—â—6 Kelw. 9â— To make an Estate estate of land by the advise of W and S and they advise an insufficient estate and the obligor doe make the estate according to that advise this is a good performance of the condition But if the condition be that the obligor shall make a good and sure estate and he by advise of counsell make an estate that is not good and sure this is no good performance of the condition If the condition be that the obligor shall make me an estate of Fitz. Barre 55. land and make the estate to another by my appointment it seemes this is no performance of the condition If the condition be that the obligor or his feoffees in trust shall Trin. 17. â—a B. K. make an estate to the obligee such a day and the feoffees doe it without the consent of the obligor this is no performance of the condition If the condition be to make further assurance and the obligor Pasche 8. â—a Co. P. To make further assurance make further assurance upon condition without the agreement of the other party this is no good performance of the condition If the condition be to save me harmlesse from an Annuity wherewith To save harmlesse 37 H. 6. 18. Perk. Sect. 792. my land is charged and the obligor doth pay the same yearly and get me an Acquittance for the same from the party this is a good performance of the condition But if the condition bee to discharge me of such an Annuity in this case payment and procuring mee a Release is no good performance of the condition If the condition be that the Feoffees or Leassees of the Obligor To grant a rent or to procure a rent to be granted of such land which they have in trust shall grant me a rent-charge Peâ—â— Sect. 790. Fitz. Barre 7. or release their right to mee before such a day and there be three Feoffees or Leassees and two of them only doe grant this rent or make this Release this is no good performance of the condition If the condition be that the Obligor shall purchase and procure Dyer 15. to me and my heires a rent of 5 l. per annum and a stranger hath such a rent out of my land and he doth get him to release this to me this is a good performance of the condition And if one be bound Fitz. Barre 77. with condition to grant me the rent and farm of such a Mill before Michaelmasse to be had and perceived untill I be paid 10 l. and before that time he lease the Mill to me at a rent and then suffer me to detaine so much of the rent it seemes this is a good performance of the condition If the condition be to deliver me a horse and the Obligor tender To deliver a horse the horse unto me and I refuse him hereby the condition is performed Coo. super Lit. 207. and so in all such like cases where the Obligor is to doe Tender and Refusall any collaterall thing as stand to an award or the like if the Obligor offer to doe it and the Obligee refuse the condition is performed and the Obligation discharged forever If the condition be to pay money at a day certaine and the To pay mony Obligor pay a little before night time enough for the receiver to Dyer 17. super Lit. 202. Broo. Condition 145. see to number his money by day light this is a good performance of the condition And if the condition be to pay money by or before a day paiment the last instant of the day before is a sufficient performance of the condition If the condition be to pay me a summe of money at a day certaine Perk. Sect. 748. 34 H. 6. 17. 21 Ed. 3. 13 Coo. 5. 117. 9. 79. Broo. Oblig 64. Acceptance and the Obligor pay me lesse money before the day or all the money before or at the day or give me something else before or at the day of paiment in liew thereof or pay me all the money or a lesser summe at the day appointed but in another place and not the place mentioned in the condition and I accept thereof in all these cases the condition is well performed But if a stranger to the condition doe so and I accept thereof this is no good performance of the condition as hath been * Trin. 36 Eliz. adjudged And if the Obligor pay lesse then the whole money at the day of paiment and the Obligee accept thereof this is no good performance of the condition * Adiudge 17 Eli. And if the thing to be done be a collaterall thing as to account or the like and the Obligor give unto the Obligee money or a horse in liew thereof and the Obligee accept it this is no good performance of the condition And if the Obligor pay the money to the
end of their life viz. a Testament CAP. XXIII Of a Testament A Testament is the full and compleat declaration of a mans minde or last Will of that he would have to be done after his death 1. Testament Quid. Termes of the Law Lit. Broo. Sect. 300. Coo. super Lit. 111. Swinb of Wills 24. It is in Latin Testamentum i. Testatio mentis the witnesse of a mans minde and to devise by Testament is to speak by a mans Will what his minde is to have done after his death And this is sometimes called a Will or last Will for these words are Synonima and are as it seemes promiscuously used in our Law Howsoever by the Civill Law it is then only said to be a Testament when there is an Executor made and named in it and when there is none Codicâ—â— Quid. but a Codicill only for a Codicill is the same that a Testament is but that it is without an Executor and a man can make but one Testament that shall take effect but he may make as many Codicills as he Will. And by the Common-Law where Lands or Tenements are devised in writing albeit there be no Executor named yet there it is properly called a last Will and where it doth concerne Chattels only a Testament He that doth make the Testament Testator â—â—testate is called the Testator And when a man dyeth without Will he is said to die intestate Of Testaments there be two sorts namely a Testament in writing Quotuplâ—x Perk. Sect. 476. Coo. super Lit. â—11 or a written Testament which is where the minde of the Testator in his life time by himself or some other by his appointment is put in writing And a Testament by word or without writing which is where a man is sick and for feare least death or want of memory or speech should surprize him that he should be prevented if he stayed the writing of his Testament desireth his neighbours and friends to beare witnesse of his last Will and then declareth the same presently by words before them And this is called a Nuncupative or Nuncupatorie Testament And this being after his Nuncupative death proved by Witnesses and put in writing by the Ordinary is of a great force for any other thing but land as when at the first in the life of the Testator it is put in writing A Codicill also is in writing or by word as a Testament is The Civilians have other divisions of Wills and Testaments as solemn and unsolemn priviledged and unpriviledged whereof the Common Law maketh no mention The parts of every compleat Testament whereof it doth consist 〈◊〉 The 〈◊〉 of it Termes of the Law tit Devise Coo. super â—â—tt 211. Swinb lib. 1. c. 7. are two 1. The making of Devises or giving of Legacies 2. The making and Ordination of an Executor for a Testament can bee no more without then a Codocill can be with an Executor A Devise or Legacy is where a man in his Testament doth give Devise or Legacy Quid. any thing to another the first of these termes is properly applied to the gift of lands and the last to the gift of goods or chattels and therefore a Devise strictly is said to be where a man in his Testament doth give his lands to another after his decease and a Legacy is said to be where a man in his Testament doth give any chattell to another to have after the death of the Testator but the word is promiscuousâ—y applied to the one and to the other And hee that gives by such a Will is called the Devisor and he to whom the thing Devisor Devisee or Legatee is given the Devisee or Legatee And a devise is sometimes simple and without condition as Dyer 317. 7â— Coo. super Littl. 217. Swinb 132. 134. 136 where I give my land to another and his heires or I give 20l. to Quotuplex another without more words And sometimes it is with a condition which is when there is a quality added to the devise or legacy whereby the effect of it is suspended or hindred and it is thereby made to depend on some future event And this condition in this case may be made almost by any words as if I give to one Conditionall Devise my land if he pay 20l. to my daughter or so as he pay 20l. to my daughter or paying 20l. to my daughter or I give one 20l. if he marry my daughter or when he shall marry my daughter or I give my wife 20l. a yeare whiles she shall live unmarried or I give to him or to whomsoever shall marry my daughter 20l. or the like in all these cases the devise is conditionall The first kind of devise is called by the Civilians a simple assignation and the latter a conditionall assignation An Executor in a large sense s taken for any one that is appointed New Terms of the law Coo. 8. 135. Plow 288. Coo. super â—ittl 209. Coo. 9. 40. to have the disposition and ordering of the goods and chattels of a man that is dead And so there are three kinds of Executors Executor Quid. the first is à lege constitutus who is therefore called legitimus and such a one is the Ordinary of the Diocesse who hath ordinary Iurisdiction in matters Ecclesiasticall the second is à Testatore constitutus Ordinary who is therefore called Testamentarius and hee is strictly and properly called an Executor and is defined to be one appointed by a mans last Will and Testament to have the disposing and administration of all or part of a mans goods and chattels and to perform a mans last Will and Testament according to the contents thereof the third is ab Episcopo constitutus who is therefore said to be Dativus And such a one is an Administrator who is defined to be one that hath the goods and chattels of a man dying Administrator intestate committed to his charge by the Ordinary for want of an Executor And his power benefit and charge is in all things equall to the power benefit and charge of an Executor The Executor and Administrator also is sometimes universall or totall 〈◊〉 one that hath the power and disposition of the whole Dyer 4. Brâ— Executor 155. Coo. 6. 19. Quotuplex personall estate committed to him And sometimes he is particular or partiall i. one that hath the power and disposition of some part of the estate or of all the estate for a time only committed to him And sometimes he is absolute i. such a one that hath an absolute power of the estate as Executor or Administrator and sometimes he is conditionall i. one that hath a limited and conditionall Coo. super 〈◊〉 209. St. 81. E◠〈◊〉 c. 11. Coo 9. 40 8. 135. power of the estate only And in both cases he shall be Represent the person of the Testator charged and
it it shall be deemed in earnest but if it bee by way of discourse only or of somewhat â—e would do hereafter or the like it shall be taken for nothing The third thing required in a good Testament is that the minde of the Testator in the making of it bee free and not moved by Thirdly in respect of the occasion or motive of it Swinb 283. 284. 285. 286. feare fraud or flattery for when a Testator is moved to make his Testament by feare or circuâ—vented by fraud or overcome by some immoderate flattery the samâ— is void or at least voidable by exception And therefore if a man by occasion of some present fear or violence or threatning of future evils do at the same time or afterwards by the same motive make a Testament this Testament is void not only as to him that put him so in feare but as to all others albeit the testator confirm it with an arch But if the cause of feare be some vaine matter or being weighty is removed and the testator doth afterwards when the â—eaâ—e is past confirm the Testament in this case perhaps the Testament may beâ— good And if a man by occasion of some fraud or deceit bee moved to make a Testament if the deceit be such as may move a prudent man or woman and if it be evill also the Testament is void or voidable at the least but if the deceit be light and small or if it be to a good end as where a man is about to give all his estate to some lewd person from his wife and children and they perswade the Testator that the lewd fellow is dead or the like and thereby procure him to give his estate to them this is a good Testament And one may by honest intercessions and modest perswasions procure another to make himselfe or a stranger Executor to him or the like and this will not hurt the Testament Also a man may use fair and flattering speeches to move the Testator to make his Testament and to give his estate unto himself or some friend of his exâ—â—pt it be in case where the â—latterer doth first beate or â—hreaten him or put him in fear or to his â—lattery joineth fraud and deceit or the Testator is a person of weak judgement or under the danger or government of the â—latterer as when the Physician shall perswade his Patient under his hands to make his Testament and give his estate to himself or the wife attending on her husband in his sicknesse shall neglect him and continually provoke him to give her all or where the perswader is importunate and wil have no denial or when there is another Testament made before for in all these cases the Testament wil be in danger to be avoided And if I be much priviâ— to another mans minde and he tell me often in his health how hee doth intend to settle his estate and he being sick I doe of mine own head draw a Will according to his minde before declared to me and bring it to him and ask him whether this shall be his Will or no and he doth consider of it and then deliver it back to me and say yea this is a good Testament But if otherwise some friends of a sick man of their own heads shall make a Will and bring it to a man in extremity of sicknesse and read it to him and ask him whether this shall be his Will and he say yea yea Or if a man be in great extremity and his friends presse him much and so wrest words from him especially if it be in advantage of them or some friends of theirs in these cases the Testaments are very suspiâ—ious But as touching these two last things Quâ—re how they shall avail in the Wills of land which are not regulated so much by the Civill Law The fourth thing required in the making of a good Testament is Swinb 112. Broo. Test 20. Fourthly in respect of the manner and form of the disposition that that form and order that the Law prescribeth be observed in the the disposition And therefore 1. that there be an Executor named in all Testaments of goods and chattels and that that Executor named be capable of the Executorship for this is said to be the head and foundation of the Testament for if there be never so many First naming of an Execuâ—or Legacies given and no Executor made this disposition is but a a Codicill and cannot properly bee called a Testament for in this case the party dead is said to die intestate and the Administration of his goods must be granted to the Widdow or next of kinne whereas on the other side if an Executor be appointed albeit there be no Legacy given yet this disposition is and is properly said to be a Testament 2. If the Testament be of lands or Tenements it must be Secondly if it be of lands it must be in writing in writing and it must be committed to writing at the time of the Stat. 32. 34 〈◊〉 8. Perk. Sect. 476 47â— Dyer 72. Plow 345. Coo. 4. 60. Dyer 53. making thereof And it is not sufficient that it bee put in writing after the death of the Testator being first made by word of mouth only for then it is but Nuncupative still But if the Testament bee first made by word of mouth and be afterwards written and then brought to the Testator and he approve it for his Testament Or if the Testator when he doth declare his minde doth appoint that the same shall be written and thereupon the same is written accordingly in the life time of the Testator these are good Testaments of land and as good as if they be written at the first If therefore one be very sick and another come to him and ask him whether his wife shall have his land and he say yea and a Clerk being present doth put this in writing without any precedent commandement or subsequent allowance of the sick man this is no good Testament of the land So if one declare his whole minde before Witnesses and send for a Notary to write it and die before he come and he write it after his death this is no good Testament for his lands but a good Nuncupative Will for his goods and chattels except he declare his minde to be that it shall not be his Will unlesse it bee put in writing for then perhaps it may not be a good Will for his goods and chattels So if â—he that doth write the Will cannot hear Adâ—udged Trin. 10. 〈◊〉 the party speak and another that stands by the sick man doth tell him what he doth say in this case if there be none others prâ—sent to prove that he reported the very words of the sick man this will be no good Testament of the Land But if a Notary take direction from the sick man for his Will and after goe away and write it and then doth
bring it againe and reade it to the Testator and he approve it Or if it be written from his mouth by the Notary according to his minde and his mind were to have it written albeit it be not shewed or read to him afterwards these are good Testaments So if the Notary doe only take certaine rude noâ—â—s or directions from the sick man which he doth agree unto and they bee afterwards written faire in his life time and not shewed to him againe or not written faire untill after his death these are good Testaments of lands If a sick man bid the Notary make a Testaâ—ant of his lands but doth not tell him how and the Notary make a devise of it after his own minde this is no good Testament and yet if it be after read unto and approved by the Testator it may be good And so if a Testament bee found written in the Testators house and not known by whom and it be read unto and approved by the Testator this is now a good Testament in writing for lands and Thirdly useâ— and lands by custome and chattels devisable without writing goods 3. Uses of lands before the Statute of uses might and lands and tenements devisable by Custome and goods and chattels may be disposed by word without writing and such Testaments of such things so made are good 4. It is not materiall in what matter Swinb paâ—t 4. Sect. 25. 26. or â—â—uffe whether in paper or parchment noâ— in what language whether Fourthly the matter or hand wherein and whereby it is written in Latin French or any other tongue nor in what hand or letters whether in Secretary hand Roman hand or Court hand or in any other hand a Testament be written so it be faire and legible that it may be read and understood Neither is it materiall whether the same be written at large or by notes or characters usuall or unusuall as xx s for twenty shillings or when the figure 2 is used in stead of the letter A if it be usuall in the Testators writing or the like for the Testament is good notwithstanding So also iâ— some words be omitted or sentences improper used when the intent and meaning is apparant as where a man saith I make my wiâ—e of my this my last Will and Testament leaving out the word Executrix yet the Testament is good and this shall be understood But if it be so done as it cannot be read or by reading the minde of the Testator cannot be known then is the Testament void and of no force In like manner as a Nuncupative Will is when the words spoken are so ambiguous obscure and uncertaine that thereby the meaning of the Testator cannot be known nor understood 5. Where Fifthly â—ealing and subscribing the Testators name noâ— needfull Perk. 476 477. writing is needfull as in the case of disposition of land it is there â—ealing of the Testament or subscribing of the Testators name is not necessary And therefore if a man by himselfe or another doe make a Testament of his land and doe not put his Seale or name to it if hee agree to it this is a sufficient Testament 6. If whiles the Testator is making his Will and whiles he intendeth Swinb 6. â—it Broo. Sect. 300. Swinb part 7. Sect. 10. Coo. 〈◊〉 â—1 Sixthly interruption in the making of the Will to proceed further at that time either by adding diminishing or altering he bee suddenly stricken with sicknesse or insanity of minde whereby he cannot proceed but gives it over in the middest and so he die it seemes in this case the whole Will is void And yet if a man begin his Will and make perfect Devises to one and then of himselfe give over untill another time or if a man make a perfect Devise to one and then die before he can make any Devise to any others it seemes these are good Testaments for as much as is done And therefore it is said if one command another to make his Will and by it to devise White Acre to I S and his heirs and Black Acre to I N and his heirs and he write the Devise to I S and his heiâ—s and the Testator die before he can write the Devise to I N and his heires this is a good Devise to I S but a void Devise to I N and his heires But if a man bid the Notary write a â—evise of his land to I S upon condition and the Notary write the Deviâ—e to I S but the Testator dyeth before he can write the condition in this case the whole Devise is void But a man may if he Swinb 13â— please make a Testament of part of his goods and die â—ntestate for the rest and that disposition he doth make is good for so much 7. The last thing required to the perfection of a Testament is that it bee Seventhly in respect of the proofe of it and what shall be said a sufficient proofe of a Testament or not proved for if it be never so well made and be in truth the Testament of the Testator yet if it cannot be by proofe made to appear so it is but a void Testament and of no force at all And therefore herein these things are to be known 1. That a Nuncupative Testament Swinb paâ—â— 7. Sect. 13. part 〈◊〉 〈◊〉 2â— must be proved by two Witnesses at the least and those must be such as are without exception 2. A written Testament when it is written with the Testators own hand doth prove and approve it selfe and therefore need not the help of Witnesses to prove it And for this cause if 〈◊〉 mans Testament be â—ound written faire and perfect with his own hand after his death albeit it be noâ— subscribed with his name sealed with his Seale or have any Witnesses to it if it be known or can be proved to be his hand it is held to be a good Testament and a sufficient proof of it selfe but if it be sealed with the Seale and subscribed with the name of the Testator and can be proved by Witnesses it is the more authentick And when it is found amongst the choise evidences of the Testator or fast locked up in a safe place it is the more esteemed for if it be written in another hand and the Testators hand and Seale or one of them noâ— to it albeit it be â—ound in such a place as before yet some proof will be expected of it further by Witnesses in that case And iâ— a writing be found under the Testators own hand yet if it be but a scribled writing written Copie-wise with a great distance between every line without any date in strange characters with many interlinings and lying amongst his void papers or the like this will not bee esteemed a sufficient testament nor a good proofe of it but it shall be accounted rather a draught or image of the Testators Will for a direction to him
Schedule in the custody of such a man and in truth there is no such Schedule in the custody of such a man to be found or if there be no name written therein it seemes these Legacies are void for incertainty So if a man give a Legacy to a man incertaine and no such man is to be found and the meaning of the Testator cannot be known this Devise is void And yet if a man by his Will say thus I devise to him that shall marry my daughter this is a good Devise and he that doth marry my daughter in my life time or after my death shall have it And if a man devise any thing ad pias causas as to the Church or to the Poore not expressing what Church or Poore this perhaps may be a a good Devise So if a man give 20l. to his kindred it is said this is a good Devise and that a reasonable exposition shall be made of it as neer the intent of the Testator as may be viz. that those in the next degree shall have it first and then those in the next degree to that shall have it afterwards and if it be a Devise to the kindred of another man that they shall have it equally Sed quaere of this Devise for it seemes altogether uncertaine So if a man give to I S or I D 20l. this is held Swinb part 7. sect 9. to be a good Devise albeit it be somewhat incertaine and the disjunctiue shall be taken for a copulative and so I S and I D shall take both by this Devise but if in this case one of them be nearer of kin then the other then it is said he shall have it for his life anâ— the other afterwards And if one devise 20l. to A or B which of them I S will appoint this is a good Devise and hee that I S shall appoint shall have it And if one devise to I S and his children this is a good Devise and certaine enough and hereby he and Plow 345. Coo. 1. 105. 155. Perk. sect 508. his children shall take the thing devised together 3. And as the person to whom the Devise is made must be capable and certainly described and named so must he be capable by that name by which the Devise is made to him or otherwise the Devise is void And therefore if a Devise be to the heires of I S I S being living this Devise is void And yet if â—ands or goods be devised to the Executors of I S and I S die before the Testator and make Executors this is a good Devise to the Executors And if a man devise his land to I S for life the remainder to the next of kin Fitz. Devise 27. Plo. 523. Perk. sect 509. 510. â—â—oo Corporation 55. or next of blood of I S this is a good Devise of the remainder And iâ— a man devise goods to the Pariâ—â—ioners of the Parish of S to the use of the Church this is a good Devise and the Church-wardens may recover it And if a man devise Eccleâ—â—â— sanctâ— Andreâ— dreâ— de Holborne it seems this is a good Devise to the Person of that Church And if a man devise to the City of London University of Oxford or to Queens Colledge in Oxford these are good Devises But if one devise to the Cominalty of a Guyld that is not incoâ—porate as to two of the middle men of the Guyld of the â—raternity of whiteacres in London or the like this devise is void 4. And if the person be capable wel-named and capable by that name if his name be truly set downe yet if his name be not so Dyer 4. Perk. sect 50â— Swinb 289. 290. 〈◊〉 but mistaken the Devise is void And therefore if one intending to give 20l. to I S devise to I N 20l. this devise is void both to I S and I N except the person be certainly denoted and described by some other circumstance as to I N the sonne of I S my Lanlord or the like So if one devise to the Abbot of S. Peter when the foundation is the Abbot of S. Paul this Devise is void And if one devise to a Corporation and there be none of that name at the time of the Devise nor during the life of the Testator this Devise is void and so also it seemes the Law is if there be a Colledge made after of that name But if one devise a thing to Plow 344. the wife of I S and before the Devisor die I S dye and she take another husband and is called by another name yet this Devise is good So if one give a Legacy to I S Deane of Pauls and the Chapter there and their Successors and after before the death of the Devisor I S dye and another is made Deane yet this Devise is good notwithstanding this mistake For the third and fourth thing required in a good Devise see before at Numb 4. Part. 2. 3. And for the fifth thing it is to be knowne 1. Coo. supeâ— Litt. â—11 Plow 345. Swinb parâ— 1. sect 12 That lands and tenements devisable by custome may be devised by Fifthly in reâ—pâ—ct of matter tâ—uâ—hing the manner and forme of the Devise And how a Devise may be made a Nuncupative Will without any writing for any time whatsoever as Uses at the Common-Law that are now within the Statute might have been Also those Uses that remaine at the Common-Law and are not within the Statute may be devised by word without any writing But no estate can be made of lands by Devise upon the Statute except the Devise be in writing and so a man may devise his land albeit he make no Executor for an Executor hath nothing to do with the Free-hold of land Also goods and Plow 345. Swinb part 1. Sect. 1â— Dyer 140. chattels leases for yeares of Lands Wards Villaines and the like may be devised by word without any writing at all And yet it seemes questionable whether a Lease for yeares of a Rent Common or such like thing be devisable by word without writing 2. Swinb part 4. sect 4. Plow 23. Littl. Broo. sect 316. Dyeâ— 23. The forme of words in a Devise is not at all regarded and therefore if one say I give institute desire appoint or will that I S shall have my land or that I S shall have 20l. or let I S have my land or 20l. all these Devises are as good as if he say I devise to I S my land or 20l. And therefore if one at this day since the Statute of Uses devise that his Feoffees of the land shall bee seised of the land to the use of I S and his heires or to the use of I S and the heires of his body or if such a man devise that his Feoâ—fees shall make an estate of the land to I S and his heires or to him and the heires of his body this is a
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
this doth not alter the custome but by this all the sonnes shall take If a man devise his land to his wife for life the remainder to â—â—tz 〈◊〉 2. his sonne and the heirs males of his body engendred and for default of such issue the remainder to his next heir male and the heires males of the body of that heire male and after his sonne die without issue living his wife and the Devisor hath issue a daughter who hath issue a sonne in this case and by this Devise it seemes the daughter and not her sonne shall have the land and that in Fee-simple If a man devise his land to his wife for life and after to his own Trin. 9. â—ac Aâ—â—â—dged Curteâ—s case right heirs males and he hath issue three daughters and after his death one of them hath a sonne in this case and by this Devise the next collaterall heire male of the Devisor and not the sonne of the daughter shall have the land If a man have issue two sonnes and a daughter and devise his Dâ—er 122. land to his wife for tenne yeares the remainder to his younger sonne and his heirs and if either of the said two sonnes die without issue of their bodies the remainder to the daughter and her heirs and the younger sonne die in the life time of the father and after the father die in this case and by this Devise the daughter hath a good remainder but it seemes the elder sonne hath first an estate Taile by the intent of the Devisor If a man devise some land to A his eldest daughter and her Dâ—eâ— 330. heires and if she die without issue to T his youngest daughter and her heirs and if she die within 16 years that A shall have her part to her and her heirs and if A marry such a one that T shall have her part to her and her heirs and if T die having no issue that all her part shall goe to M and E his Neâ—ces and if A die without issue that T shall have her part to her and her heires and T after the 16 years doth die without issue in this case the Neeces M and E and not A shall have her part that is dead If land be devised to A for life the remainder to a Monke for Perk. Sect. 5â—6 â—67 life the remainder to I S in Fee by this Devise he in the remainder in Fee shall take presently after the first estate for life ended and if the Devise be to a Monke for life the remainder to I S in Fee by this I S shall take presently If a man devise his land to a womâ—n and her brother and the Dyer 326. heirs of either of their two bodies and for default of issue of the said woman and her brother the remainder to the right heires of the Devisor and after the death oâ— the Devisor the brother dyeth without issue and the sister hath issue and dyeth in this case and by this Devise her issue shall have a moity and no more of the land If one devise two parts of his Land to his four younger sonnes Dyer 304. in Taile and that if the Infant in the wombe of his wife be a sonne that he shall have the fifth part as co-heire with the four and if his five sonnes die without issue that the two parts shall revert and then the Devisor dyeth and after a sonne is born and after he and three of the other sonnes die in this case and by this Devise the Infant shall not take any thing because he is uncapable and the two parts shall not revert to the heire untill the five sons be dead without issue If one devise the Mannor of Dale to the eldest sonne of I S in Adiudged Co. B. M. 36. 37 Eliz. Brownes case Fee and the Mannor of Sale to I D for life the remainder to such of the children of I S as shall be then living and shall have the Mannor of Dale and the eldest sonne of I S after the Testators death doth sell the Mannor of Dale and after I D dyeth in this case and by this Devise none of the children of I S shall have the Mannor of Dale but it shall goe to the heires of the Devisor If one devise his land to the children of I S by this devise the children that I S hath at the time of the Devise or at the most the children that I S hath at the time of the death of the Testator and not any of them that shall bee borne after his death shall take If one have two daughters by divers women and devise a moity of Dyer 34â— his land to his wife for seven yeares and that the elder daughter shall enter into the other moity at her day of marriage and if his wife be with child of a daughter that then she shall have an equall portion with the other sister and the Devisor dyeth and the wife doth enter and hath not a daughter and then the elder daughter doth take a husband and enters upon a moity the younger daughter dies without issue and the seven years expire in this case and by this devise the collaterall heir of the younger daughter shall have the moity of the whole and not the moity of a moity only and that by discent If a man have issue B C and D sonnes and he devise his land Curia B. R. Mich. 20. Iaâ— Next of blood to D his sonne the remainder proximo de sanguine or to the next of blood of the Testator in this case and by this Devise B shall take after the death of D as the next of blood In like manner if the Testator have four daughters and he devise his land to the youngest in Taile the remainder to the next of blood by this Devise the eldest daughter and not all the rest shall have the land And if the Testator have issue B his elder sonne and C his younger son and B have issue D his sonne and B is attainted and dyeth and the Testator deviseth his land to I S for life the remainder to the next of blood of the Testator by this Devise D and not C shall have the land If a man have issue B and C sonnes and D a daughter and devise Broo. Dâ—scent Piâ— 19. 8. Aâ—â— Pl. 4. his land to C for life and after that it shall remaine to the next of blood to his children to the next heirs of the blood of his children and C dyeth and B dyeth without issue and D hath issue a daughter in this case and by this Devise the heires of A shall not take but the next of blood to the children of A which is the daughter of D and his children themselves are excluded and if the sonnes have any issues living they shall take with her by this Devise If the Testator have issue by A his first wife three daughters â—â—â—â—dged Mâ—
devise none of his land in the other Hamlet doth passe If a man make his Will the first day of May and thereby give the Plow 34â— Mannor of Dale to one in Fee and the tenth of May one of the Tenancies escheat and the 20. of May the Devisor dyeth in this case and by this devise it seems the Devisee shall have the Tenancie that doth escheat If one devise his land thus I give my land in Dale to I S and 3. In respect of the estate and time that is devised Fee-simple his heires or to I S in Fee or to I S in Fee-simple or to I S for Litt. Broo. Sect. â—â—3 Perk. Sect. 1. 6. Litt. Sect. 586. â—elw 4â— Coo. super Litt. 19. 20 H. 6. 35. Litt. B100 Sect. 432. 19. H 8. 10. ever or to I S Habendum sibi suis or to I S and his Assignes for ever or thus I give my land to I S to give sell or do therewith at his pleasure by all these and such like devises a Fee-simple estate is made of the thing devised and I S shall have the same to him and his heirs for ever But if land be granted by Deed after this manner I S by this grant in all these cases except onely in the Deed. first case hath onely an estate for life * Fitz Devise 111. And if a man devise his land to I S and say not how long nor for what time by this devise I S hath an estate for life only in the land If a man devise his land to I S and his Assignes without saying Coo. super Litt. 9. Perk. Sect. 57. 239 New Terms of the law tit Devise for ever it is said by some that by this devise I S hath onely an estate for life * Tâ—â—n 2. C. B. R. reply Daniels case Coo. 6. 16. Dyer 126. But the contrary is affirmed elsewhere and that it is a Fee-simple If one devise his land to his wife to dispose thereof at her will and pleasure and to give it to one of her sonnes in this case and by this devise she hath a Fee-simple but it is qualified for she must convey it to one of her children and cannot convey it to another If one devise his land to I S paying 10. l. and use no other words by this devise the Devisee hath the Fee-simple of the land albeit the 10. l. be not the hundredth part of the worth of the land * Adiudge Hill 36. Eliz Co. B. And yet if one devise his land to I S for his life paying 10. l. by this devise I S shall have an estate for life only If one devise land of the value of 50. l. per annum to J S for life the remainder to I D paying 40. l. to W. by this devise J D shall have the Fee simple of the remainder upon condition If one have two sonnes and he devise his land first to his wife and Hill 17. Iac. B. R. adiudged Spiceâ—s case then he saith thus In like manner I will that my sonne A. shall have it after my wives death and if my wife dye before my sonne B then that my sonne A shall pay to B 3. l. by the year during the life of B and also 20. l. to W S. by this devise A shall have the Fee-simple of this land â—f one devise his land thus I will my land to my sonne W for his life and after his death to my sonne T and if my sonne W purchase Câ—â—ia M 18. â—ac B. R. Green ver 〈◊〉 â—us Dewell land as good as that land for my sonne T then that my sonne W shall sell the land devised to my sonne T as his own and I will that my sonne W shall pay to his Sisters â—0 l. by 20. s. a year in this case and by this devise W hath a Fee-simple for power to sell giveth by implication an estate in Fee-simple and it is paying also c. If one devise land to his wife and her heires and if the heire put her out that she shall have other land by this devise she hath the Fee-simple Pasch 14. Iac. B. R. Curia of the first land and is not abridged by the latter words If one devise his land thus I give White Acre to my eldest sonne and his heires for his part Item Black Acre to my youngest sonne Trin. 30. Eliz. for his part by this devise the younger sonne shall have the Fee-simple of Black Acre So if I give White Acre to I S Item Black Acre to I S and his heires by this devise I S shall have the Fee-simple of White Acre also If one give land to his wife for life the remainder to his sonne and Perk. Sect. 566. the heires males of his body and for want of such issue the remainder to the next heire male of the Donor and the heires males of his body it seems by this devise that the next heire male of the sonne hath a Fee-simple If one devise his land thus I give my land in Dale to I S and to his or to the heires males or heires females of his body or of his Coo. super Lit. 21. 26. â—ee-taile body begotten or to I S and his issues male or his issues female or to I S and the heires males of his body begotten on M or to I S and E his wife and the heires males or heires females of their two bodies begotten or to I S and his heires if he shall have any heires of his body else that the land shall revert or to I S and his heires if he have any issue of his body or to I S and the right heires males of his body or to I S and his heires provided that if he dye without heires of his body that the land shall revert by all these and such like devises an estate taile is made of the thing devised and I S the Devisee shall have the same accordingly If one devise his land thus I give my land in Dale to I S et somini Coo. super Litt. 9. Broâ— tit taile 21. Coo. super Lit. 20. 6. 1â— suo by this devise I S hath an estate taile But if he say I give my Deed. land in Dale to I S et sanguini suo it is said by this devise I S hath the Fee-simple of the land If one devise his land to I S â—t exitibus vel prolâ—bus de corpore suo by this devise if I S have no children at the time it seems he hath an estate taile but by such a limitation by deed is made onely an estate for life If one devise his land thus I give my land in Dale to I S for life the remainder to I D and E his wife and their children or to I D and E his wife and their men children or to I D and E his wife and their issues by these
it all If one give 10 l. to his Parish Church and at the time of the Will Swinb 316. made hee live in one Parish and after he doth remove into another Parish and die there by this Devise the Parish where he lived before and not where hee dyed shall have this 10 l. If one devise a third part of all his goods and chattels by this Dâ—er â—9â— 164. Secondly in respect of the thing Devise some say doth passe and is given no more but a cleare third part after debts and Legacies paid but it seemes a third part of the whole is hereby devised out of which the debts must first be paid by Law If one devise to another all his goods and chattels or all his plate Plow 343. Swinb 31â— or all of any other thing in generall by this Devise doth passe and is given not only all the Testator hath of that thing at the time of the making of the Will but also all he hath at the time of his death and not only what he hath in possession but also what he hath not in possession But if one devise all his goods or all his plate c. in such a place or in the occupation of I S by this Devise none other will passe but what are in that place and in the occupation of I S. If one have a term of years of a portion of Tithes in Dalâ— and have By the opinion of divers Lawyers a term of years of land in Dale and he devise all his lands and tenements in Dale and all his estate therein to I S by this Devise the the portion of Tithes doth not passe for it is neither land nor tenement but by Devise of all his heriditaments perhaps it may passe Sed Quâ—re If one devise to I S all his goods and chattels by this devise doth Poâ—tman versus Willâ—s Pasche 36 Eliz. Co. B. Coo. super Litt. 118. Swinb part 7. c. 10. passe and is given all his estate active and passive except land of inheritance and free-hold estates and such things as depend thereupon as Leases for years Wardships by Tenure in Capite or by Knights Service gold silver plate houshold-stuffe cattell corn debts and the like and if one devise to I S all his goods or all his chattels by either of these is devised as much as by both of them If one devise to I S all his moveables by this Devise doth passe Swinb 305. 306. 307. all his personall goods both quick and dead which either move themselves as horses sheep and the like or may be moved by another as plate houshold-stuffe corn in the garners and barnes or in the sheafe c. * Agree Hâ—ll 9. Car. Co. B. also all Bonds and Especialties and by a Devise of Immovables doth passe Leases Rents grasse and the like but not any of those things that doe passe by the Devise of moveables but debts will not passe by either of these Devises If one devise to another all his houshold-stuffe hereby doth Swinb 313. part 7. c. 10. passe his plate coaches tables stooles formes beds vessels of wood brasâ—e pewter earth and the like but not his apparrell books weapons tooles for Artificers cattell victuals corn plow-geere and the like by a Devise of all utensils it is agreed that plate and jewels Dyer 59. doe not passe If a man devise to I S one of his horses or a horse by this â—evise Election Swinb 302. I S shall have the election if there be more then one which horse he will have but if the devise be thus I will that my Executor shall deliver to I S one of my horses in this case the Executor hath the election and he may deliver which of them he will If one devise thus I give to I S my corn growing in such a ground Swinb 94. this next year or the lambs of my â—lock this next year by these Devises the Legatee shall have no more but what doth grow that year But if he devise so many quarters of corn or so many lambs in these cases so much must be paid howsoever If one have a Lease for yeares of land and devise it to I S for life Thirdly 〈◊〉 Coo. 4. 66. Plow 520. Coo. 7. 23. by this Devise the whole terme is devised and I S the Devisee shall have the whole terme if he live so long and yet I S shall not have an estate for life by this Devise and so also it seemes the Law is upon a Grant by Deed after this manner And if a man possessed of a Dyer 307 terme of years of land devise his term or his Lease or the land it Dâ—â—d selfe by a Devise in either of these termes the whole terme doth passe If a man be possessed of two houses for yeares and devise them to his wife for her life if she live sole the remainder to I S and if shee Pasche 14. Iac. B. R. Gough Haywards case marry then that she shal have one of them during the rest of the term and then addeth these words and also I will that she shall have 20 l. a year out of my other lands in this case and by this Devise it seems the Annuity shall continue during the term Sed Quaere for the Judges were divided in this point If a Legacie be given and no time is set for the paiment or doing of it if it be simple it must be paid and done presently if it be Plow 540. Swinb 354. conditionall and upon a condition precedent it must be paid or done the time the condition is first extant and if there be a time set for the paiment or doing of it it must be paid or done at the time appointed See more in Exposition of Deeds Numb 15. Devise of Lands to Executors to sell to pay debts Legacies c. are Coo. super Litt. 236. 112 113. 15 H. 7. 12. Dyer 177. 219. Kelw. 107 108. Perk. Sect. 513. 542. Litt. Broo. Sect. 371. Kelw. 40. 45. some of them after one manner and some after another for sometimes 9. Devise of lands to Executors or others to sell or that Executors or others â—hâ—ll sell or other ewile dispose them how this shall bee taken and what sale and disposition shall be good or not the Devise is thus I will that my Executors or that A B and C my Executors shall sell my land and sometimes the Devise is thus I give my land to my Executors to be sold or to the end that they shall sell it in the first case the Executors have only an authority and no interest and therfore in that case the land doth discend in the interim to the heir of the Devisor and he shall have the profits of the land untill it be sold and if it be never sold he shall ever have the profits of it and in this case they may sell
is Iudge of that Peculiar or if the goods be within two Peculiars then before the Ordinary of the Diocesse wherein these two Peculiars lye But if there Sâ—inb part 6. Sect. 11. be bona notabilia in the case viz That the Testator have goods or chattels at the time of his death of the value of 5l or more lying in two or more â—ounties or have good debts upon Especialties as some say for otherwise they follow the person or have any Especialties as other â—ay lying in other Counties for debt so that there be of goods and chattels or good debts to the value of 5l in any other Diocesse then that wherein the Testator led his life and dyed then the Probate doth belong to the Archbishop of that Diocesse wherein it is unlesse the Ordinary of the same Diocesse have the Probate by composition between him and the Metropolitan for otherwise there must be severall Probates for the goods in every Diocesse as anciently was used in these cases But if a man die in his journey in another Diocesse and have more then 5 l. goods about him this shall not be said to be bona notabila but the Will may be proved before the Ordinary of the place where the deceased lived and his estate doth he And except Stat. 23 H. 8. cap. 9. it be in cases where men have bona notabilia the Officers of the Courts of the Metropolitans are not to cite men out of their own Diocesse and to discover this matter it is the duty of the Ordinary of the Diocesse when any man comes to prove a Will to give him an Oath and examine him whether he know of or doe believe there are any goods to the value of 5 l. lying in any other Diocesse at the time of the Testators death and if he hear of any to dismisse them to the Prerogative Court and to give them notice of it Also in some places the Lords of Mannors have the Probate of all the Wills within their Mannor by custome of the place Fitz. Testament 4. 5. and in those places it must be proved there and not elsewhere And when an Executor is bound to prove the Will before the Ordinary as before the Ordinary may give him what time to doe it hee doth think fit and when he doth prove it the Ordinary doth take an Oath of him to administer the goods faithfully and to take bond of him also if he please but this some doe omit And now because lands are oftentimes conveyed by the severall kinds of assurance aforesaid unto one man but to the use of another and to the intent that another shall take the profits of it we must of necessity hear somewhat of the learning of Uses and then wee shall have done CHAP. XXIIII Of a Vse A Use is the profit or benefit of Lands or Tenements or as 1. Vse Quid. Coo. 1. 125. 122. See the Addition to Iust Dodr. Treatise Coo. super Litt. 271. 272. others define it The equity and honesty to hold the land in conscientia boni viri Or as others define it more fully It is a trust or confidence reposed in some other which is not issuing out of the land but as a thing colatterall annexed in privity to the estate of the land and to the person touching the land so that he for whom he is trusted shall take the profit of the land and the Terre-Tenant shall dispose of it according to his direction As for an example If a Feoffment be made to I S and his heires to the use profit or behoofe of W S and his heires in this case heretofore I S had the estate and property of the land but W S had and was to have the profits in honesty and equity So if one agree with W S for a piece of land for 20 l. and pay him the money but hath no assurance of the land yet the equity and honesty to have this land is in him that hath contracted and paid his money for it and this trust was called the use of the land and hence came the course in conveyances to set down in the Habendum to whose use as Habendum to A and his heires to the use of A and his heires And he for whom this trust is and that ought to have the profit of the land by conveyance as aforesaid is called cestuy que use There is a use also of goods and chattels which is properly called a Trust or confidence Cestuy que use Trust or confidence Quid. for one may have such things to the use of another A Use is either expresse i. e. when the use or intent is openly declared and expressed between the parties upon the making of the 2. Quotupleâ— Doct. St. 95 Perk. Sect. 533. Coo. 2. 58. 9. 11. Dyer â—8 146. estate of land whereunto the use is annexed as when a Feoffment is made of land to I S and his heires to the use of W S and the heirs of or heires males of the body of the said W S or to the end and intent that W S and his heires or W S and the heires of his body shall take the profits of it or the like or when I covenant to stand seased of the land to the use of my wife for life and after of my eldest sonne and the heires of his body or the like Or it is implyed i. e. when the use is not declared upon the agreement between the parties but is left to the construction and made by the operation of Law as when a man seised of land makes a Feoffment in Fee or doth levie a fine or suffer a common Recovery of it to another without any consideration and it is not agreed nor declared to what use or intent it shall be this by construction of Law shall be to the use of the Feoffer Conusor or Recoveree But if there be any consideration of money or other thing paid or given or any rent or Tenure reserved then by construction of Law it shall be to the use of the Feoffee Conusee or Recoveror for otherwise the Law presumeth that the intent of him that did part with the land was so viz. that the other should have the property of the land to his use and that he himselfe should take the profits of it So when one doth bargaine and sell his land for money to another and no use is expressed in this case the Law doth say it shall be to the use of the Bargainee and his heires A use also is either in esse and that in Coo. 1. 121. possession reversion or remainder as when a Feoffment is made to I S to the use of I W and his heirs or to the use of I W and after to the use of I D and the heires males of his body and after to the use of S T and his heires for ever Or it is in posse or in contingency as when by possibillity
it may happen to be in possession reversion or remainder as where a use is limitted to me for life and after to him that shall be my first sonne in Taile this is only the possibility of a use for it may or may not be A Use at the Common-Law before the Statute hereafter spoken Coo. in Chudleighs care in toto Shelle â— case Kolwâ— 160. Dyer 12. Broo. Feoffâ—â— al uses in toto conscience 25. of was made was and where that Statute doth not take place is 3. The nature incidents and originall of it nothing but a meare confidence and trust colatterall to and distinct from the land annexed in privity of estate and to the person touching the land to this purpose that cestuy que use should take the profit of the land and the Feoffee or Terre-Tenant that was trusted should make estates and otherwise dispose of the land as the cesty que use in his life or at his death by his last Will and Testament should direct and appoint and if he made no disposition then that it should goe to his heir so that the Feoffee had the Free hold or sole property of the thing in him and cestuy que use had neither jus in re nor jus ad rem for if he against the Will of the Feoffee had entred into the land he had been a Trespassor but a bare confidence or trust for which the cestuy que use had no remedy but in Chancery upon breach of the trust and there to have the Feoffee imprisoned untill he perform the trust according to the order of the Court. And these uses to some purposes were reputed in Law as chattels and therefore were devisable by Will and to some purpose as hereditaments and a kind of Inheritance of which there was a possessio fratris c. and to some purposes neither chattels nor hereditaments for they were not esteemed Assets in the heire or Executor neither were they reputed as Commons Rents Conditions and such like Inheritances which are discontinued or taken away by the Alienation of the Terre tenant Escheat Disseisin c. but a use is not so And to every of these uses there were two inseperable Incidents Incidents of it confidence in the person and privity in the estate expressed by the parties or implyed by the Law and when either of these failed the use was either gone for ever or suspended for a time at the least And therefore if the Feoffee to use upon good consideration had enfeoffed another of the land that had not notice of the use the use had been gone for ever because howsoever here was a privity of estate yet here was no confidence in the person but if the Feoffment had been without consideration to such a one in this case the use had remained â—ill because the Law did imply a notice So also it Trin. 17. Ia. Cancellaria seemes the Law was when it was made in consideration of marriage only And if a Disseisor Abator or Intrudor had come to the possion of the land whereof the use was albeit he had notice of the use yet the use was suâ—pendâ— during their possession and they should not have been seised to use as the Feoffee was for they come not to the land â—n the per but in the post And if a Lord by Escheat Lord of a Villaiâ—e or one that had entred for Mortmaine or that had recovered in â— Cessavit c. had come to such land and had notice of the use the use had been â—ue for ever for these came to the land in thâ— post and above the usâ— And Tenanâ— in Dower and by the curtesy should not be seised to uses in being for all these wanted privity of estate And if there hâ—d been Tenant for life the remainder in Fee to the use of another and the Tenant for life had made a Feoffment in Fee to one that had notice of the uses this second Feoffee should not have stood seised to the first uses So if the husband had made a Feoffment in Fee of the land of his wife upon consideration and without any use expressed the wife should not have had a Subpoena because the Feoffee was not in privity of estate of the wiâ—â— And if cestuy que use for life or in Taile the remainder in Taile with divers remainders over in use had made a Feoffment to one that had notice he should not have been seised to the first uses causâ qua supra But otherwise it is of Commons Advowsons and such like appendants or appurtenants for if Tenant in Taile or husband in right of his wife make a Feoffment of a Mannor or of part of it with an Advowson appendant the Advowson at least after Presentment shall passe as appendant to the Mannor oâ— to part of the Mannor and not to the estate of the land which is discontinued by the Feoffment So if a Disseisor Abator Intrudor or the Lord by Escheat or the like shall have these things as annexed to the land or the possession of the land so that there is a difference between a use a warrantie and such like things that are annexed to the estate of the land in drivity and Commons Advowsons and other hereditaments that are annexed to the possession of the land And these Uses began first when the custome of property began and was brought in that one man knew his own from another The Originall of â—â— and why so much lands wâ—â—â—â—t in use Doct. Studâ— 9â— Coo. 1. 123. 12â— Stat. 17. H. 8. c. 10. in the preamble mans and then was to enjoy his own and not to be deprived of it without consent or order of Law for then he that had land had two things in him a possession of the land and power to take the profits of it and those being to be distinguished he might give the Free hold or Possession to another and take the profits himselfe and they were the rather allowed by the Law for a time as reasonable because they gave a man power to dispose of his land by Will which otherwise hee could not have done but in some speciall cases by custome of the place But in time this use was turned into an abuse and the greatest part of all the lands in the Kingdome especially in the time of the broyl between the houses of York and Lancaster were put in use partly of fraud and partly of feare which produced not a few inconveniences for thereby many were deceived of their just and reasonable rights as namely a man that had The mischief of uses cause to sue for his land knew not against whom to bring his Action or who was owner of it the wife was defrauded of her thirds the husband of being Tenant by the Curtesy the Lord of his Wardship Reliefe Harriot and Escheat the Creditor of his Extent for debt the poore Tenant of his Lease and other Purchasors of their
Seventhly in respect of the manner and â—rame of the words used in the raising of uses and what manner of uses may be made or not making and raising of uses wherein there is much regard to the minde and intention of parties For if one covenant in consideration Coo. 3. 91. of 20 l. paid him by I S to stand seised of land to the use of I S and his heires or if one covenant that I S and his heires shall have his land if this Deed be inrolled this is a good bargain and sale to raise the use and will doe it as well as when it is made by the words bargaine and sell So if one for good consideration by words Coo. 2. in Sir Rowland Hay wards case Wards versus Lambert Co. B. Pasche 37 Eliz. of Demise and Grant make a Lease of his land for a term of years hereby the use will rise to the Leassee as well as if the Lease were made by the words bargaine and sell Et sio de similibus And yet if one by words of bargaine and sell convey his land to his son Inrolment no use will arise by this except there be money paid and the Deed be inrolled And if one in consideration of money grant his land to his sonne or any other by the word enfeoffe no use will rise by this unlesse Livery of Seisin be made thereupon because the intent of the parties in these cases doth appeare to be to passe it in another manner And if in the last case Livery of Seisin bee made Resolved in Stiles case 3â— Eliz. then the use shall be guyded by Law that is if nothing be given it shall be to the use of the Feoffor and not amount to a limitation of use to the sonne * 21 H. â— 18. Plow 308 301. Broo. Feost mental use 16. If one covenant with his sonne that his land shall remaine or that his land shall discend to him this is a good covenant to raise the use according to the limitation And yet if one covenant with his sonne upon his marriage that his land shall remaine revert or discend to his sonne in Fee or in Fee-Taile by this no use will be raised because it is so incertaine but perhaps this may amount to a covenant whereupon the sonne may have an Action of Covenant If I covenant for me and my heires that Covenant I and my heires and all others that are seised shall bee thereof seised to the use of c. this is a good covenant to raise the use albeit it be in words of the future tense If I covenant with my Dyer 374. eldest sonne and strangers to convey my land to the same strangers to the use of my selfe for life and after of my sonne in Taile c. and I grant by the Deed that the said persons seised of the said land shall be from thence seised to the said uses and none other use and no other conveyance is made it seemes this is sufficient to raise the use And yet if I be seised of land in Fee and Covenant with I S that A B and C D and their heires shall stand and be seised of this land to the use of c. it seemes this is not a good covenant to raise the uses If a Feoffment or other conveyance Coo. 1. 120. be made to the use of the Feoffor and the heires of his body on the body of M the wife of S T and for default of such issue to the use of him and the heirs of his body of S the now wife of W K and for default of such issue then to the use and performance of his last Will for 10 yeares immediatly after his death and after the term ended to the use of the Feoffees and their heirs during the life of W eldest sonne of the Feoffor and after his death to the use of the first issue male of the body of the Feoffor lawfully begotten and the heires of the body of such first issue male and for default of such first issue male to the second issue male c. in the same manner these are good limitations of uses So if a use be limited to I S for life without impeachment of waste and after to the use of Coo. 1. 90. B and C their Executors and Administrators for the term of twenty years and after to the use of C and the heires males of his body c. these are good uses So if a use be limited after this manner Coo. 6. 18. Lit. Sect. 462. 403. viz. to the use of a mans last Will and Testament or 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 or to the use of such person and persons or to such uses and purposes as he shall by any writing under his hand and seale declare and appoint these are good limitations If I covenant with another in consideration of Coo. 1. 176. blood c. that I will stand seised of my land to the use of such of my sonnes or such of my cousins as the Covenantee shall name in this case after a nomination made the use will rise well enough But if I for and in consideration of 10l or the like good consideration Incertainâ—y covenant to stand seised of land to the use of such persons as the Covenantee shall name in this case albeit the Covenantee doe nominate some of my cousins or blood yet no use will rise by this for the incertainty of it If a Feoffment or other conveyance be to the use of I S and his heires provided that if the Foeffer pay 10l at such a day that then it shall be to the use of the Feoffer and his heirs this is a good limitation and the use will rise accordingly A use may be limitted to a woman durante viduitate sua and this Coo. 4. 3. is good If a man bee seised of two Manners and covenant to stand Coo. 11. 23. seised of the same to the uses following viz. of the one to the use of the Covenantor for his life and after to the use of his wife for life and after to the use of his eldest sonne in Taile c. And for the other Mannor to the use of his second son in Taile c. these are good limitations and the uses will rise accordingly If a man seised of land in Fee agree with another that a Fine Coo. 2. 69. 70. shall be levied of it and that the same shall be to the uses following viz. that I S the Conusor shall have one yearly â—ent of 50 l. during his life to be issuing out of the same land and as touching the land charged with the rent c. to the use of I D the Conusee untill default of payment of the said yearly rent and then to the use of I
S and his heirs for ever this is a good limitation and the use will rise accordingly Et sic de similibus If a Feoffment be made by I S to the uses in certaine Indentures Coo. 10. 78. Tripartite of the same date and therein is declared that it shall bee to the use of A for life without impeachment of Waste and after to the use of such Farmoâ— or Tenants to whom he shall demise any part of the premises for life or lives or for any terme of yeares as in any such demise shall be limited and appointed and after to the use of the performance of the last Will of the said L and to the use of such person or persons severally to whom the said L by his last Will and Testament shall appoint any estate and after to the use of c. these are good uses and the estates shall rise accordingly A use may be limited upon condition and the condition may Coo. 4. 14. be annexed to one of the uses and not unto another If lands be conveyed to I S and the heires of his body to the Coo. supâ— Lâ—â— 19. use of I S and his heirs or to the use of a stranger and his heires this use will not rise in this manner And yet if lands be conveyed to I S and his heirs to the use of him and the heirs males of his body and after to the use of a stranger and his heires it seemes this is a good limitation If one grant lands by Deed to husband and wife To have and to Hill 6. Car. B R. Aâ— iudge hold to the use of the husband and wife and of the heires of their two bodies this is a good estate Taile by this limitation albeit he doe not say Habendum to them and their heirs c. but Habendum to their uses but otherwise it were if the use were limited to a stranger in this manner If lands be conveyed by I S to I D to the use of I S or to the Dye◠〈◊〉 use of his wife for life or to the use of any other for life the remainder to another in Taile or for life the remainder to a third his Executors c. for six months and after the six months ended to the use of a fourth and his heires these are good limitations and the estates will rise accordingly If a use be limited to the Conusee of a Fine or a Recoveror in a Dyer 2â—â— Recoverie untill he make a Lease for fourty yeares and after to the use of the Recoverees or Conusors and their heirs this is a good limitation and the use will rise accordingly Contingent uses or use in posse may be created as well as uses in esse and therefore if lands be conveyed to the use of a man and the Coo. 1. â—â— Câ—â— case 13â— wife he shall afterwards marry or to the use of his first second or third wife or to the use of I S for life and after to the use of the right heires of I D and I D is then living or to the use of I S for life and after to the use of him that shall bee his first heire male and the heires of the body of such heire male c. all these and such like are good uses but they are uses at the Common-Law Righthly in respect of the nature and quality of the â—â—e still and are not executed by the Statute untill they come in esse The last thing whereunto respect is to be had is the nature and qualiâ—y of the use And herein it is to be known that a man may at this day by act executed in his life time or by his last Will and Testament at his death give his Lands Tenements or Hereditaments Coo. 1. 26. 3. 131. 4. 113. Charitable uses to any person or persons not corporate and their heires for any religious charitable or civill use as well as for any private use And therefore a man may so dispose of his lands for the finding of a Preacher erecting or maintenance of a Schoole reliefe and comfort of maimed souldiers sustenance of poore people reparations of Churches High-wayes Bridges discharging of the poore Inhabitants of a Village of the common charges to make a stock for poore Labourers iâ— Husbandry and poore Apprentices and for the marriage of poore Virgins or other such like uses and these uses are not prohibited by any Statute And it is good policy upon every such Feoffment or estate to reserve to the Feoffor and his heires some small rent or to set down some small consideration But these uses are not such uses as are executed by the Statute of uses neither are they to bee resembled to the usâ—s aforesaid for in this case if there be any mis-imployment of the lands or breach of the trust by the parties trusted redresse is to be had by the Lord Chancellor or Lord Keeper by a speciall course of proceeding For which see the Statutes of 39 Eliz. chap. 6. 43. Eliz. chap. 9. 7 Iac. chap. 3. But if any man have heretofore given Superstitious Vâ—â—s or heretofore shall give any Lands Tenements of Hereditaments Stat. 15. R. 2. ch 5. 37. H. 8 ch 4. 1. Ed. 6. ch 14. by act executed in his life or by his last Will at his death to any person singular or corporate in Fee-simple Fee-Taile for life or yeares to the intent or upon condition to maintaine any superstitious use as to finde a Chaplaine and have the service of a Priest to say Masse or to have a Priest or other man to pray for the Soule of any dead man in such a Church or other place or to have or maintaine perpetuall obites lamps or torches c. to bee used at certaine times to help to save the souls or men out of the supposed Purgatory all these and such like uses are void and the lands that are so given to such superstitious uses are to be forfeited and given to the King and he shall have them and yet so that if there bee any charitable use intermixed with the superstitious use and they may bee distinguished the King shall have only so much as is given to the superstitious use and not that which is given to the charitable use also For which See Adams and Lamberts case at large Coo. 4. 104. Coo. 1. 175. 176. Dyer 109. 5. Declaration of Vses And where a use of land may hee declared upon any Assurance and â—â— a shall be said a suffienâ— dâ—â—laration of such a uâ—e or not As touching the Declaration of Uses i e. the manifestation or agreement of the parties to what uses and intents the Assurance made shall be these things are to be known 1. That uses may be declared or averred on a Fine Feoffment or recovery of land but on a bargaine and sale of land no use may be declared or averred but what the Law doth make And upon a