supra And note that Livery of Seisin is of two sorts Livery of Seisin is two-fold viz. in Law and in Deed Noys Max. p. 160. Livery of Seisin in Law is termed Livery of Seisin within the View which is when a Man maketh a Deed of Feoffment and delivers Seisin within the View the Feoffee being afraid to enter Ibid. 163. And note This Livery within View Livery within the View is good if the Feoffee do enter in the Life-time of the Feoffor Idem p. 59. And yet it is said that a Livery in View or Law may sometimes be perfected by an Entry in Law Perfected by Entry in Law which is when the Feoffee being afraid to enter as before maketh continual Claim of the same 38 Ass pl. 23. And it is said that no Man can constitute another to receive Livety for him within the View No Attorny in Livery in View nor yet to deliver for none can take by force or virtue of a Livery in Law but he that taketh the Freehold himself Et sic e contra Noys Max. p. 163. Livery and Seisin in Deed Livery in Deed. is actually done either personally or by Attornies as is before explained Attornment The end of Attornment is to perfect Grants Defined and therefore may not be made upon Condition or for a Time Noys Max. p. 64. but it shall enure to the whole absolutely Attornment is the Agreement of the Tenant to the Grant by Writing or by Word as to say I do agree to the Grant made to you or I am well contented with it or I do Attorn unto you or I do become your Tenant c. or delivering a Penny unto the Grantee by the Tenant by way of Seisin of a Rent and to pay or do but one Service only in the name of the whole it is good for all Ibid. p. 63 64. Where it effecteth Lands and Tenements and such things as naturally lie in Grant cannot be transferred from one to another by bare Grants of the Parties without the Attornment and Agreement of others as of the Tenant to the Grant of the Seigniory or of a Rent or the Agreement of the Donee in Tail or of the Tenant for Life or Years to a Grant of a Reversion or Remainder made by the Donor or Lessor to another as Where necessary Where he that hath an Estate in Reversion or Remainder after an Estate for Life or Years doth grant or give the same away here the Tenant of the Land must give his consent to such Grant or Gift or else generally the same is not good and this yielding of consent is called Attornment See Terms del Ley Co. Lit. fol. 309. pl. 25. Attornment is either Actual or in Law Twofold Actual Actual is an expressed consent to the Grant as before Lit. 551. Plow 25. a. 344. a. Attornment in Law In Law is where the Person that ought to attorn doth not expresly declare his consent but doth some other Act as in Law sufficiently implieth an Agreement as if a Lease be made for Life or Years and after he that hath the Reversion or Remainder granteth the same to his Lessee who accepteth the Deeds These and such like be Attornments in Law West Symb. Lib. 2. sect 383. To the making good of an Attornment Requisits to make a good Attornment where it is requisite divers Things are required 1. It must be made by the Person that ought to make it 2. It must be made to the Person that ought to take it 3. It must be made in due time 4. If it be an express Attornment the Tenant must have notice of the Grant of the Reversion c. to which he must Attorn but of Attornment in Law there notice in all Cases is not necessary 5. It must be done in such manner as the Law doth prescribe And observe as before that it may be made either by Words or Deeds By Word or Deed. without Writing or by Deed or Writing and this is the safest way By Word And any Word written or spoken by the Tenant after he hath knowledge of the Grant of the Reversion which do import an Assent or Agreement to it will make a good Attornment in Fact or in Deed as to say I do Attorn or turn Tenant to you according to the Grant or if he do pay all or any of the Rent or do any part of the Service as before this is a good express Attornment and is best of all when it is made by Words and Deed Best by Word and Deed both or Sign both for then the Witnesses will best remember it Co. Lit. fol. 309 310 315. Plow Com. 344. Land-lords Law p. 127. 128. When to be made Where Attornment is necessary it must be made in the Life-time of the Parties Grantor and Grantee for if either of them die before Attornment be made the Grant is void but if the Tenant die before he Attorn he that hath the Estate may Attorn and it is good or if the Tenant grant over his Estate his Assignee may Attorn Co. Lit. fol. 315. a. Perkins sect 231 263. Lit. Tenures 110. a. Co. Rep. f. 8. Noys Max. p. 64. It seems that Attornment is not necessary Where necessary but to have Avowry or an Action of Wast 2 E. 6. Brook 45. Note Where not That when no attendency nor payment is to be made by the Tenant there the thing passes without Attornment 31 H. 8. Brook 59. Where Attornment is necessary in Law or in Deed Note See Land-lords Law p. 129 130 131 132 133 134 135 136. This Attornment must be indorsed on the Deed or else declared by a Deed and may be done in this manner Indorsement for one Tenant Memorandum That the within named A. B. being Tenant for Term of Life c. or being present Tenant c. as the Case requires of the Lands Tenements and Hereditaments c. understanding the effect of the within written Grant thereof made unto the within named C. D. did the _____ day of _____ Anno _____ assent and agree unto the same Grant in every respect as the same is within written and did therefore Attorn and for proof thereof did give unto him the said C. D. in the name of Attornment the Sum of 6 d. in the presence of us whose Names are subscribed A. B. C. D. E. F. c. Or thus by divers Tenants themselves For divers Tenants We whose Names are hereunder subscribed being the present Tenants c. of c. understanding c. do assent c. and do therefore Attorn and in Testimony of such Attornment each and every of us did give c. and also have hereunto subscribed our Names the _____ day of _____ Anno Domini 1688. Witness A. B. C. D. E. F. Or thus Memorandum That the Persons whose Names are under written did the _____ day of _____ Anno Domini
down Ch. 4. This Lease for life is not saleable by the Sheriff for Debt but the Land is to be extended Not saleable but extendable at a yearly value Not forfeited except c. to satisfie the Debt neither is it forfeited by Outlary except in Felony nor by any of those means before mentioned to which Leases for years are liable and subject saving only Attainders for Treason Felony or Praemunire and then only to the Crown not to the Lord of the Escheat Vide 25 Ed. 3. Stat. 5. cap. 2. This Estate will go to the Heirs Will go to the Heir if the word Heirs be contained in the Grant if not contain'd Then to the Executor Or Executor in case of no special Occupancy as before Page 2 3. A Lease for life or for years How Leases for Life may be made may also be made by Fine of Record Bargain and Sale or by Covenants to stand seised to uses upon good consideration of Marriage or of Blood See Bro. Fines 106. Note If a Man have a Lease for never so many years determinable upon life or lives which some Persons call a Lease for lives it is but a Chattel Wentworths Executor page 28. Of Entails Entail signifies Fee entailed 3. Entail defined That is Fee scanted or limited and tied to certain Conditions See Cowels Int. Tit. eod These Entails may be created by a Gift with Livery and Seisin to a Man and the Heirs of his Body How created This word Body making the Tail may be restrained to Males or Females to the Heirs of the Bodies of the Husband and Wife to the Body of his Father or Grand-father in Tail special or general When they began Entails began by a Statute in Edward the Firsts time Westm ca. 2. de Donis Conditionalibus for before that Statute Feoffees after they had Issue had power to alien and disinherit the Issue contrary to the mind of the Donees By Statute West ca. 2. And by this Statute they were made so strong as that the Tenants in Tail could not put away the Land from the Heir by any Act of Conveyance or Attainder nor let it or any way charge or incumber it longer than for his own life see the Statute The inconveniencies by that Stature But the inconveniency thereof was very great for by this means the Lands were so surely tied upon the Heir as the Father could not put it from him It made the Son disobedient negligent and wastful Marrying often without the Fathers consent and to grow insolent in Vice knowing there could be no check of disinheritance to restrain him It made also the Owners of entailed Lands less fearful themselves to commit Felonies Murders Manslaughters and Treasons Committing Felonies Murders Manslaughters and Treasons for that they knew that none of their Acts could hurt their Heir in his Inheritance It hindred Men that had entailed Lands that they could not make the least Profit of their Lands by taking Fines or other Improvements Hindred Improvement of Lands For that none upon so uncertain an Estate of the Owners life would give him a Fine of any value nor lay any great Stock upon the Land that it might yield an improv'd Rent And lastly These entailed Lands defrauded the Crown and many Subjects of their Debts Defrauded the Crown and Subjects of their Debts for that the Land was not liable thereto longer than for his own life which made that the King could not safely commit any Office of account to such whose Lands were entailed Hindred the Owners to borrow Mony nor other Men to dare to lend them Mony These Inconveniencies were all remedied by later Statutes The Inconveniencies remedied by Fine c. as namely by the Statutes of 4 Hen. 7. and 32 Hen. 8.36 A Tenant in Tail may disinherit his Son by Fine and Proclamations And by that means also may make it subject to his Debts and Sales Grant by several Statutes And by a Statute made in 26 Hen. 8. cap. 13. Tenant in Tail doth forfeit hiâ— Land for Treason Which make Tenants in Tail forfeit for Treason and they may make Leases And by another Statute made in the 32 of H. 8 cap. 28. He may make Leases gooâ— against his Issue for twenty onâ— years or three lives so it be noâ— his chief Lands or Demeans noâ— a Lease in Reversion nor a lesseâ— Rent reserved than the Tenants for the most part of twenty years before have paid And so as such Lease have not any matter of discharge for doing Wasts or Spoils and by a Statute made the 33 H. 8. Tenants in tailed Lands are liable by Extent for the Kings Debt They are liable to the Kings Debt and are saleable but And by a Statute 13 Eliz. 4. they are saleable for his Arrearages upon his account for his Office not forfeited for Felony So that now it resteth that entailed Lands have these two Priviledges only viz. Not to be forfeited for Felonies nor extended Not extended for Debt after the Parties Death except the Tail be cut off Except the Tail be cut off by Fine or Recovery Note These entails are now usually created by settlements upon Marriage for the benefit of the Posterity and may be cut off as before is shewn And these settlements entailing such Land unto the Issue or Posterity describes the Uses Behoofs Intents Purposes Provisos Conditions Powers and Limitations of the Parties thereto and thereby meant and the Lands are usually made over to Trustees by Fine and Recovery to stand seised to such Uses c. The last and greatest Estate of Land is Fee-simple Fee-simple what which is an Estate absolute to one and his Heirs for ever To one and his Heirs for ever Therefore he that maketh a Lease for life to one or a Gift in Tail may appoint a Remainder after that Estate to another for life or in Tail and a third in Fee-simple but after a Fee-simple he can limit no further Estate And if a Man does not dispose of a Fee-simple by way of Remainder when he maketh the Gift in Tail or for life or for lives then the Fee-simple resteth in himself as a Reversion Co. on Lit. fol. 112 113. Brook Tit. Don. Remainder fol. 245 Glanv li. 7. cap. 1. And the difference between Remainder and Reversion Difference between Remainder and Reversion is this The Remainder is alway a succeeding Estate at the time when the precedent is appointed But the Reversion is the Estate left in the Giver after a particular Estate Note A particular Estate is such as is derived from a General Estate made by him for years life or in tail See hereafter Ch. 5. Bract. lib. 2. cap. 25. Where the Remainder is made with the particular Estate then it must be done by Deed in Writing with Livery and Seisin and if the Giver will after dispose of the
Example his eldest Son being possessed and the youngest Son entreth and is disseized and a Fine with Proclamation levied and after the eldest Son is deraign'd i. e. discharged of his Profession or Religion It seemeth he is bound to no time So if the Husband levy a Fine of his own Lands Dower whereof his Wife is Dowable and die and five years pass she is not barred of her Dower for before his Death she had only a Possibility and not any Title to Dower Plow fol. 373. a. And if Strangers have several future Rights by divers Titles growing at several times Several future Rights growing at several times they shall have several five years from the time that their several Titles first accru'd unto them Ibid. Strangers having neither present nor future Right And Strangers to Fines having neither present nor future Right to the Tenements in the Fine but unto some thing in or issuing out of the same as Rent Common Way Estovers or any such charge out of the Land seem not barrable at all For it seemeth that these Fines extend only to bind the Estate Title Right Claim Entry and Interest in and to the Land and no Profits to be taken out of the Lands nor to take power given to Executors or others to sell the Land Brook Tit. Fines 123. It is a good plea to a Fine Plea to a Fine that a Stranger was seized to say That J. S. was seized at the time of levying it and before without that That the Parties to the Fine had any thing therein at the time of the Fine levied 9 H. 4. 27. 3 H. 6.27 Or that the Parties to the Fine had nothing Plea that the Parties had nothing c. But that A. B. had whose Estate he hath 33 H. 6. 18. 26 H. 6. 9. 42 E. 3.20 4. H. 4.8 4 H. 7. cap. 24. If there be two of one name Two of one Name and the one levy a Fine of the Lands of the other the other may avoid it by pleading likewise the Owner of the Land may aviod the Fine levied by a Stranger in his name Fine how to be avoided because it is a matter of Record and there is no other remedy except an Action of Deceipt 34 H. 6. 19. But neither Parties to Fines Pleas not allowable nor their Heirs may plead that before at and since the levying the Fine the Plaintiff or their Heirs were always seized of the Lands in the Fine or of parcel thereof 27 E. 1. cap. 1. Tenant in Remainder in Fee Averment of him Remainder in Fee may aver the continuance of Possession against a Fine sur Cognizance de Droit come ceo c. levied by Tenant in Tail 12 E. 4. 12. because he is neither the Party nor his Heir The Reason and so may a Feme-Covert where her Husband sole levyeth the Fine Ibid. Issue in Tail may aver continuance of Possession Continuance of Possession against a Fine sur Cognizance de Droit tantum but not against a Fine sur Cognizance de Droit come ceo que il ad de son done because that Fine is executed and the other only Executory 12 E. 4. 15. 19. 11 H. 4. 85. And lastly Note that if the use of a Fine be not declared before nor after the Fine levied it shall be intended to the use of the Cognizor Use of a Fine not declared remains to the Cognizor and his Heirs See West Symb. Tit. Fines Of Recoveries Recoveries are either feigned That is Common or True that is actual by Judgment The end and effect of a Common Recovery is to discontinue and destroy Estates Remainders and Reversions and to bar the former Owners thereof West part 2. Symb. § 1. And it is used for assurances of Land where the Parties do agree that one shall bring an Action Real against the other that hath the Free-hold of those Lands as though he had good Right to the Lands and the other shall not make defence against it The form of it but shall alledge that he bought these Lands of A. B. who hath warranted them to him and prays that A. B. may be called to defend the Title and A. B. shall vouch to warranty H. H. who is called the common Vouchee Common Voucher unless it be in special Cases where some others are to be and must be vouched thereby to cut off Remainders which Vouchee shall appear as though he defended and pray that day for defence and after a day being given him by the Court maketh default and thereupon the Court is to give Judgment Judgment against him which Judgment cannot be for him to lose the Land because he hath it not but the Party to whom he sold it who called him to warrant it Therefore first the Demandant against whom there is no defence must have Judgment to have the Land against him that he sued who is called the Tenant and the Tenant is to have Judgment against the first Vouchee c. And by this Devise grounded upon the strict Principles of Law the first Tenant loseth the Land Tenant loseth his Land by Agreement and hath nothing for it but it is by his own Agreement and for the Assurance of him that buys the Land The Effects of Recovery The Recovery bars Intails and all Remainders and Reversions that should take place after Intails saving where the King is the Giver of the Estate Tail and keepeth the Reversion in himself It prevaileth not where the King has the Reversion and then the Heir in Tail nor the Remainder or Reversion is barr'd by such Recovery 23 H. 8. b. The Reason why the Heir c. is barred by such Recoveries The Reason why the Heirs of the Remainders and Reversions be thus barr'd is because in strict Law the Recompence adjudged against the Vouchee is to go in succession of Estate as the Land lost should have done and then it were not reason to allow the Heir liberty to keep the Land and also to have a Recompence in value therefore he loseth the Land 23 H. 8. and is to trust to the Recompence This sleight was first invented Recoveries when first invented when Intails fell out to be inconvenient as is before declared so that Men made no Conscience to cut them off if they could find Law for it and now by use these Recoveries are become common Assurances against Intails and against Remainders and Reversions and are the greatest Assurances that the Purchasors have for their Mony Are the greatest Assurances for Purchasors for a Fine will bar the Heirs in Tail but not the Remainders or Reversions but a common Recovery bars them all And this common Recovery is used The use when a Man is desirous to cut off an Estate Tail in Lands or Tenements to the end to sell give or bequeath it as himself seeth good There is also a
Max. p. 76. quod bene nota Nota Mr. Noy here by Franktenement means him that hath Fee-simple yet a Man is said to have Free-hold if he holdeth either in Fee Fee-Tail or for Term of Life Bract. Lib. 2. cap. 9. The new Law Terms Tit. eod Brit. cap. 32. saith Franktenement is a Possession of the Soil or Services issuing out of the Soil which a Free-Man holdeth in Fee to him and his Heirs or at the least for the Term of his Life See Cow Interp. Tit. Freehold Assignment Defined Assignment is the appointing or setting over a Right unto another And there is an Assignee in Deed and an Assignee in Law Assignee in Deed and Law he in Deed In Deed. is such a one as to whom a Lease Estate or Interest is assigned He in Law In Law is he whom the Law so maketh without any appointment as an Executor is an Assignee in Law Vide Dyer fol. 6. nu 5. The difference betwixt an Assignee and Deputee Assignee and Deputee the difference is said to be for that the Assignee occupieth in his own Right the Deputee in the Right of another Vide Perkins in Grants If the Lessee for Years assign over his Term and die his Executors shall not be charged Executors not charged for Rent due after his death Noyâ— Max. 71. And if the Executors or Administrators of a Lessee for Years assign over their Interest an Action of Debt doth not lie against them for Rent yet it seemeth that the Lessor must have notice of the Assignment Notice of Assignment and consent to it Noy 71. See Moor Rep. Marrow and Turpins Case and 3 Co. Walkers Case If a Lessee for Years assign over his Term the Lessor may charge which of them he will but if he accept the Rent Acceptance of Rent from the Assignee knowing of the Assignment he hath determined his Election Barreth and cannot afterward bring an Action of Debt against the Lessee for Rent due after the Assignment Co. 3. Rep. â—ol 24. Bulstr 2 part 151. Herns Law â—f Convey p. 110. If the Lessor grant away the Reversion after the Assignment of â—he Lessee in this case the Grantee â—annot have an Action against the â—essee for the Rent because there 〈◊〉 no privity between them Privity between the Parties but â—e is left to his remedy against the Assignee Poph. Rep. 55. Brownlows 〈◊〉 part p. 56. An Assignee of Lands Assignee may pay Mony to save the Land if he be â—ot named in the Condition yet â—e may pay the Mony to save his â—and Noys Max. p. 72. But he shall receive He shall not receive none if he be not named and the Tender shall be to the Executor of the Feoffees Ibid. Assignee shall always be intended Who shall be intended an Assignee he that hath the whole Estate of the Assignor that is assignable and if there be an Assignee in Deed an Assignee in Law will not be allowed Noy Ibid. In Assignments it is necessary to have Covenants of the Assignors part to save harmless of former Rents Grants and Charges and for the delivery of former Deeds that he is Owner in Possession and hath power to grant and assign c. That the Assignee may quietly enjoy c. and to make further assurance c. And on the Assignees part to pay the Rents and perform the Covenants c. West part 1. Lib. 3 § 453. But this may be done by Bond. Exchange Exchange Exchange what permutatio Mr. West in his Symb. part 1. Lib. 1. sect 33. saith Permutation or Exchange is a nameless Contract consisting in the thing and consent by which one certain thing is given and exchanged for another and albeit it counterfeits Buying and Selling very near yet because it cannot be discerned thereby whether is the Buyer and whether the Seller it cannot usurp that Title In Exchange both the Estates must be equal Estates must be equal there must be two Grants and in every Grant mention must be made of this word Exchange Noys Max. p. 60. It may be done without Livery of Seisin Without Livery of Seisin if it be in one Shire or else it must be done by Indenture and by this word Exchange or else nothing passeth without Livery Ibid. p. 61. Exchange importeth in the Law Condition of Re-entry Importeth Re-entry and a Warranty Voucher and Recompence of the other Land that was given in Exchange An Exchangeâ— may re-enter upon an Assignee Ibid. Surrender Defined Surrender is an Instrument testifying with apt words that the particular Tenant i. e. Tenant foâ— Life or Years of Lands or Tenements doth sufficiently consent That he which hath the next mediate Remainder or Reversion thereof shall also have the particular Estate of the same in Possession and that he yieldeth or giveth the same to him For every Surrendeâ— ought forthwith to give a presenâ— possession of the thing surrendred unto him which hath such an Estate where it may be drown'd West Symb. part 1. Lib. 2. sect 460. Noys Max. p. 73. Two sorts And there are two manners of Surrenders viz. A Surrender in Deed and a Surrender in Law Now a Surrender in Deed In Deed. is that which is really performed as by Writing and also when the words of the Lessee to the Lessor prove a sufficient assent that he shall have again the thing which he holdeth of his Lessor if the Lesâ—or do agree to it it amounts to 〈◊〉 Surrender in Deed Perkins sect 606 607 608. 6 E. 3. 7. A Surrender in Law In Law is in inâ—endment of Law by way of consequent and not actual as if 〈◊〉 Man have a Lease of a Farm â—nd during the Term he accept â—f a new Lease this Act is a Surâ—ender in Law of the former Lease Perk. ibid. 6 Co. fol. 11. b. And note Agreement or disagreement The Lessee cannot â—urrender to his Lessor against his will but if he to whom the Surâ—ender is made once agree to it he cannot afterwards disagree thereunto Perk. ibid. As if the Lessee for Life or Years of Land say that his will is Example that his Lessor shall enter into the Land which he holdeth of him and shall have the same again if the Lessor agreeth thereunto and by force thereof entreth this is a good Surrender Ibid. A good Surrender And if the Lessee cometh and saith unto his Lessor That he will occupy the Lands no longer Note a Surrender in Deed must have sufficient words to prove assent and agreement and the Lessor by force thereof doth enter this is a good Surrender for the Agreement and Entry hath confirm'd it and so of the like Perk. 109 Herns Law of Con. p. 76. Husband surrendreth Wives Dower If a Woman being Tenant in Dower taketh a Husband who surrendreth the Land which he holdeth for her life and in her Right
discern by the Degree of Parentage in the Lord Coke upon Lit. fol. 15. Yet it may be here to the purpose in hand and expected that something more be said concerning the Descent of Lands Therefore take these Rules following borrowed from Mr. Noy that Learned Expositor of the Law Nota That Lands or an Estate of Inheritance which is to a Man and his Heirs for ever doth always descend for it may not lineally ascend from the Son which is seized in Fee and dieth to his Father but descendeth to his Uncle or Brother and to his Heirs which is the next of the whole Blood for the half Blood shall not Inherit but the most worthy of Blood as of the Blood of the Father before the Mother and of the elder Brother before the other if Born within Espousals See Noys Max. p. 22. But note That if Lands be once setled or entailed in the Blood of the Father the Heir of the Mother shall never have them because they are not of the Blood of him that was last seized Idem page 23. For a Descent shall be intended to the Heir of him that was last actually seized Idem p. 22. And if a Man disseiseth another and dieth seized and his Heir entreth or maketh a Feoffment to another in Fee or in Tail and he dieth and his Heir entreth these Descents put the disseised c. from an Entry Noys Max. p. 34. But a dying seized of a Term for Life or of a Remainder or Reversion doth not take away an Entry for he must die seized in Fee Idem pa. 34 35. The Sister of the whole Blood where her elder Brother did enter after the death of his Father shall inherit before his Brother of the half Blood or any other Collateral Cousin Ibid. Yet notwithstanding such a one may be Heir to a Common Ancestor as if the Land Rent Advowson or such like do descend to the elder Son and he die before any Entry or Receipt of the Rent or Presentment to the Church c. then the Heir of him that was last actually seized shall Inherit as the younger Son c. and the reason is because that in all Inheritances in Possession he which claimeth Title thereunto as Heir ought to make himself Heir to him that was last actually seized Idem p. 22 23. Note The Possession of a Lessee for Years or of a Guardian shall invest the actual Possession and Frank-tenement in the elder Brother Idem p. 23. But if he die seized of a Reversion or Remainder or an Estate for Life or in Tail there he which claimeth the Reversion or Remainder as Heir ought to make himself Heir to him that had the Gift Ibid. And so in case of a Purchase it shall descend to the Heir of the Blood of the first Purchasor As if the Father purchase Land and it descendeth to his Son who entreth and dieth without Heirs of the Fathers part then the Land shall descend to the Heirs of the Mother of the Father or of the Father of the Father as the Heirs may be and not to the Heirs of the Mother of the Son although they are more near of Blood to him that was last seized yet they are not of the Blood of the first Purchasor Ibid. If the Heirs be Females in equal degree as Daughters Sisters Aunts c. they shall Inherit together and are but one Heir and are called Parceners Idem p. 24. But note If a Man be seized of Lands or Tenements to hold to him and his Heirs for ever It is the best Inheritance a Man may have and he may Sell or Grant or make his Will of those Lands but if otherwise he die they do descend to his Heir of the whole Blood ut supra with respect to the several Cases c. See Idem pa. 20. Property by Escheat It where the Owner of Land dieth in possession without Child or other Heir then the Land for lack of Heir is said to escheat to the Lord of whom t is holden And it is to be understood That all Lands are said to be holden of the Crown either immediately or mediately and the Escheat pertaineth to the immediate Lord not to the mediate Lord See Camb. Brit. pag. 93. Cowels Interp. Tit. eod ' The lack of Heir happeneth principally in two Cases Magna Charta 31. Fitz. N. B. fol 143. T. c. the one where the Owner of the Land is a Bastard the other where the Owner is attainted of Treason or Felony for neither can a Bastard have an Heir unless he be his Child nor a Man attainted of Treason or Felony have any Heir though he be his own Child Property by Conveyance 4. Divers Estates by Conveyance Is distributed into divers Estates Viz. for 1. Years 2. Life Viz. in 3. Tail 4. Fee simple And these Estates are created either by Word Writing or Record 1. By Word or Parol By Parol as Leases for Years 2. By Writing By Writing as by Indenture Grant c. 3. By Record By Record as by Fine Bargain and Sale c. But note Nota. That Leases parol are void if they exceed three Years from the making and if they do not exceed yet two third parts of the improved value of the thing demised must be reserved to the Landlord See Stat. 29 Car. 2. Leases for Years 1. Of Leases for Years are mostly made by Indenture by words of Demise Grant and to Farm let with such Conditions and Covenants as the parties agree upon Co. Lit. fol. 45. Bro. Leases 60. 67. h. And such Leases be called Chattels Real They are called Chattels Real c. and are not inheritable by Heirs but go to the Executors or Administrators they be saleable for Debt in the Life of the Owner or in the Executors or Administrators hands by Writ of Execution They be forfeited to the Crown by Outlary Are saleable c. or by Attainder for Felony Treason or Praemunire c. 32 L. Ass pl. 6. See Wentworths Executor pa. 76. If a Lease be for 500 Years it is but a Chattel Extents for Debts are of the same Nature as Leases for Years and cannot be entailed Registr Practical p. 192. Of like nature are Interests gotten in other Mens Lands by Extents for Debt upon Judgment in any Court of Record upon Statute-Merchant or of the Staple or Recognizances and the Tenants thereby are called Tenants by Elegit All these also be called Chattels Real and do go to the Executors or Administrators and not to the Heir and are saleable and forfeitable as Leases for Years are Idem pa. ead See more hereafter Ch. 2. Leases for Lives Are called Freeholds 2. Leases for Lives are Freeholds Bract. lib. 2. c. 9. which are also made by Writing or Record And when by Writing there must be Livery and Seisin given at the making of the Lease the manner of which Livery and Seisin is set
Render what Estates are to be created thereâ—y and of the Reservation of Rents â—omine poenae and Clause of Distress â—nd Services with the Clause of Warranty For which it is to be â—oted That when a Fine is levied to â—ivers Cognizees the Right shall be â—â—mited How the Right shall be limited 3 H. 6. 42. 24 E. 3. 64. to one of them only and â—he Estate limited to his Heirs onâ—y whose Right it is knowledged to â—e Ibid. As this Et est Concordia talis Example scilicet quod â—red ' A. Cogn ' Tenementa pred' cum perâ—in ' esse jus ipsius B. ut illa quae iidem B. C. habent de dono pred' A. Et â—ll ' remisit quiet ' claim ' de se Haeredibus suis prefat ' B. C. Haeredibus ipsius B. c. And likewise the Release Release how to be 21 Ed. 3. 33. and Warranty must be from the Heirs of one of the Cognizors for in a Fine from divers the Fee must be supposed to be in one of them only West Pres Tit. Fines § 30. Of what things it may be And a Concord cannot be of any other thing than is contained in the Writ of Covenant and not of a Foreign thing if it be not consequent Ibid. And if divers joyn in a Fine the Warranty The Warranty how to be made must be by them and the Heirs of one of them which is the Owner of the Land 44 E. 3. 1. And note That Warranties Divers sorts of Warranties be sometimes General That is against all Men some against all except certain Persons some against certain Persons only some against every Cognizor and his Heirs severally some against one of the Cognizors and his Heirs only some of all the Lands in the Fine some of all except part and some of part only certainly expressed West Tit. Fines § 147. He who acknowledgeth the Fine is called Cognizor and he to whom the Fine is levied is called the Cognizee and it is requisite that either the Cognizor or Cognizee be seized of the Lands in the Suit at the time of the levying The Partles must be seised at the time of levying thereof otherwise the Fine is void 41 Ed. 3. 14. 22 H. 6. 13. 3 H. 6. 27 H. 8. 4. 20. 37 H. 6. 34. 22 H. 6. 57. See West Exception Tit. eod unless it be by a Vouchee after he hath entred into the Warranty to the Demandant for he being Tenant in Law may confess the Action but a Fine by Vouchee levied to a Stranger is void 8 H. 4. 5 H. 7. 40. See West Ibid. All Persons Male and Female may be Cognizors Who may be Cognizors except Ideots Madmen Lunatiques Men having the Lethargy Blind Deaf or Dumb and these be hindred by nature Friers Nuns Monks who are dead in Law Exceptions of Persons dead in Law c. and Persons having Joynt-power as a Bishop without the Dean and Chapter a Dean without his Chapter a Parson Vicar Prebendary without their Ordinary a Mayor without his Commonalty Masters of Colledges without their Fellows and the single Members of every Corporation or Society and these be hindred by the Law West ibid. Cautions Of Husband without his Wife A Husband without his Wife ought not levy a Fine of her Lands for she and her Heirs may avoid it after his death 32 H. 8. cap. 28 12 E. 4. 12. 42 E. 3. 20. Care to be taken by Infants Infants i. e. all Persons under one and twenty Years ought to have a special care how they levy Fines for they must be reversed again during their Infancy otherwise they are good and the Court must see them at such reversal thereby to judge of their Age 50 E. 3. 5. 17 E. 3. 52. 78. Drunken and old Doters not capable It ought to be regarded that Drunken-men and old doting Persons be not Cognizors for their Fines are not reversable 17 E. 3. 5. 8. 17 Ass 17. Care to be taken by a Married Woman under Age. A Married Woman under Age ought to take heed that she levy not a Fine of her own Lands for she cannot reverse it during her Husbands Life neither after his Death if she be then at full Age 50 E. 3. 5. Ass pla 53. A married Woman of age Of Age. ought not to levy a Fine but with her right Husband 7 H. 4. 23. 42 E. 3. 20. And she must beware how she with her Husband With her Husband levy a Fine of her Joynture lest she thereby lose her Thirds if the Joynture were well setled before Marriage Dyer fol. 359. pla 49. If she without her Husband Without her Husband levy a Fine of her own Lands wherein she hath Fee-simple it will be a Bar against her and her Heirs unless her Husband avoid it by Entry or otherwise during her Life If he be Tenant by Curtesie Tenant by Courtesie he may reverse it after her Death 17 E. 3. 52. 78. 17 Ass 17. 7 H. 4. 23. If a Woman during her first Husbands Life marry a second Fine by Woman having two Husbands and with him and by his Name knowledge a Fine it shall not bind her 7 H. 4. 22 23. because she is misnamed With her right Husband And if she levy a Fine with her right Husband by a wrong Christian Name she is bound by Estoppel during her Life and the Tenant may plead that she by such a Name levied the Fine 1 Ass pla 11. Brook Fines 117. Of Cognizors Of the Estates of Cognizors who may levy Persons outlawed or waved in personal Actions may alien by Fine 9 H. 6. 20. 21 H. 7. 7. Persons attainted of Felony or Treason may levy by Fine but their Fines are void against the King and the Lord of whom the Lands be holden 9 H. 6. 20. 21 H. 7. 7. Tenants for Life may Tenant for Life may levy a Fine sur Graunt and Release of the Lands which he holdeth for Life to hold to the Cognizee for Life of the Tenant for Life 44 E. 3. 36. But if the Estate be larger it is a forfeiture of his Estate 4 H. 7. Noy 30. Forfeiture of Estates And so the Law is the same of such Fines by Tenant in Tail after possibility Tenant in Dower or by the Courtesie 39 E. 3. 16. But it seemeth to be no forfeiture of a Rent Rent no Forfeiture 2 H. 5. 7. Yet a particular Tenant Particular Tenant as in Dower by Courtesie or for Life cannot grant and surrender their Estate to the Owner of the Reversion or Remainder 17 E. 3. 62. Tenant in Common Tenant in Common or Joynt-Tenant may levy a Fine of his part 26 H. 8. 9. so a Copartner of his part Dyer 334. So may Tenant in Tail Tenant in Tail General or Special Also Tenant in Fee-simple
Deed containing the Description of such a Gift or Grant Attornment necessary in Grants And note That Lands and Tenements and such things as naturally lie in Grant cannot be transferred from one to another by bare Grants of the Parties without the Attornment and Agreement of others the Nature and Effect whereof is after laid down Note A Grant must be certain Certainty Noys Max. p. 61. A Man cannot charge or grant that which he never had Ibid. p. 62. A Thing that cannot begin without a Deed may not be granted without a Deed Things beginning by Deed how they must be granted and every Thing that is not given by delivery of Hands must be passed by Deed Ibid. All Things that are incident Incident to others pass by the Grant of them that they are incident unto Ibid. A Man by his Grant cannot prejudice him that hath an elder Title No prejudice to an elder Title Ibid. 63. If no Estate be expressed in the Grant How the Estate shall be limited and though Livery and Seisin be made yet the Grantee hath but an Estate for Life Ibid. But if the words manifest the lawful Will of the Grantor the Estate shall be taken according to his intent Ibid. All Grants shall have a reasonable Construction The Construction of Grants and taken strongest against him that made them and most beneficial to him to whom they are made Ibid. There must be Attornment Attornment to Grants of Reversion or Rents otherwise nothing passeth except it be by matter of Record Ibid. Lease for Years The next of these Conveyances is a Lease for Years Lease for Years and he that letteth is called the Lessor and he that taketh by the Lease is termed Lessee Certainty thereof A Lease for Years must be for time certain and ought to express the Term and when it should begin and when it should end certainly And therefore a Lease for a Year and so from Year to Year during the Life of J. S. is for two Years Noys Max. p. 65. It may be made by Word or Writing as before Lease at will A Lease from Year to Year so long as both the Parties please after entry in any Year it is a Lease for that Year c. till warning be given to depart 14 H. 8. 16. Noy Ibid. A Lease beginning from henceforth How they shall commence shall be accounted from the day of the delivery Ibid. From the making From the making shall be taken inclusive from the day of the making or of the date exclusive Ibid. If the Habendum of a Lease be for Term of one and twenty Years without mentioning when it shall begin it shall then begin from the delivery From the delivery Co. Lit. fol. 46. Herns Law of Conveyances p. 15. 131. If Lands descend to the Heir before his Entry Lease made by Heir before Entry he may make a Lease thereof Noys Max. p. 65. Tenant for Term of Years may enter When the Tenant may enter when he will the death of the Lessor is no let and he may grant away his Term before it begin Noys Max. p. 30. But before he enter he cannot surrender When surrender nor have any Action of Trespass nor take a Release Ibid. He is bound to repair Repairs the Tenements And if Tenant for Life or Years Term forfeited granteth a greater Estate than he hath himself he doth forfeit his Term Ibid. View of Reparations and Distress Nota The Lessor may enter to see what Reparations or Wast there is and he may distrain for his Rent or have an Action of Debt Ibid. The nature of Leasts And note also That Leases for Life or Years are of three Natures some be good in Law some voidable by Entry and some void without some in futuro and some in praesenti of all which and oâ— the Dates Commencements Habendums continuance and determination of Leases you may find many Examples in a Treatise for that purposed collected called Landlords Law p. 137. c. See more of the before Ch. 1. Of a Release Release defined A Release is an Instrument whereby Estates Rights Titles Entries Actions and other Things be sometimes extinguished sometimes transferred sometimes abridged and sometimes inlarged West Symb. part 1. Lib. 2. § 466. A Release made after a Lease for Life or Years amounteth to a Feoffment It amounteth a Feoffment as if I let Land to a Man for Years or Life and after release to him all my Right in the Land Example to have and to hold to him and his Heirs hereby he hath a Fee-simple Co. Lit. f. 207. a. Finch L. 1. c. 5. pag. 67. Dyer 263. But if I Release to him all my Right which I have in the Land Words to be observed without using any Words in the Release then here he hath only an Estate for Life Ibid. And note That a Release is the giving or discharging a Right or Action which a Man hath or claimeth against another or out of or in his Lands Noys Max. pa. 74. And a Man may not release upon a Condition nor for time How a Release shall enure nor for part but either the Condition is void and the time is void and the Release shall enure to the Party to whom it is made for ever for the whole by way of Extinguishment Ibid. p. 57. But such Release by Deed indented is good Ibid. Words to be observed A Release to charge an Estate ought to have these words Heirs or words to shew what Estate he shall have Ibid. Void Release A Release made by him that at the time of the making thereof had no Right is void Ibid. page 74. Void Release And a Release made to him that at the time of the Release had nothing in the Lands is also void it behoveth him to have a Freehold or a Possession or Privity Ibid. p. 75. The common Course of passing Land by Lease and Release For which purpose it is now the course in passing Land by Lease and Release first to execute a Lease for a Year or the like Term to the intent and purpose that the Lâ—ssee may be in the actual possession of the Lands intended to be released and thereby and by force and vertue of the Statute 27 Hen. 8. for transferring Uses into Possession be enabled to take a Grant or Release of the Reversion and Inheritance of the said Land to the use of him and his Heirs A Release made to him that hath a Reversion Where it helpeth the Free-hold or a Remainder in Deed shall serve and help him that hath the Franktenement so shall a Release made to a Tenant for Life or a Tenant in Tail How it shall inure inure to him in the Reversion or Remainder if they shew it and so to Trespassors and Feoffors but not to the Disseisors Noys
after his death she may enter though she had joyn'd in the Surrender and notwithstanding that She is not bound he to whom the Surrender was made died seized of the Land in Fee and his Heir be in by descent Perkins sect 112. She shall be bound But if a Feme-sole who is Lessâ—… for Years of House or Land taketh a Husband who surrendreth anâ— dieth before the Years are out here she shall be bound by this Surrender Ibid. sect 113. Good Surrender And if Tenant in Dower iâ— Land granteth her Estate unto him in the Reversion this is a Surrender Ibid. 623. If one hold Lands for Life How surrender taketh effect the Remainder to a Stranger for Years and if the Lessee for Life surrendreth unto him in Remainder it shall not take effect because that an Estate for Life cannot drown in an Estate for Years Perkins sect 589. If a Copyholder for Life surrender to the use of another Estate detertermined who is â—dmitted by this the Copyholders Estate is clearly determined But if a Copyholder in Fee surâ—ender to the use of another for Life Revived after his Death he shall have â—t again 1 Cro. 148. A Joynt-Tenant Joynt-Tenant cannot surrenâ—er to his Fellow Noys Max. 73. Lessee for Years Lessee for Years cannot surrender â—efore his Term begin though he â—ay grant also he cannot surrenâ—er part of his Lease Ibid. The Husband may surrender the Wifes Dower for his Life Husbands surrender of his Wifes Estate as beâ—ore and her Lease he may surrenâ—er for ever Noy 74. Note How it effecteth That those things which â—annot take effect without Deed â—annot be surrendred without Deed â—xcept in some special Cases By Deed. And therefore if a Man seized of Rents Tithe Common c. granteth the same for Life or Years the Grantee cannot surrender them without Deed Perk. sect 581 582 584. But that those things that may not be granted without Deed may be determined by the surrender of the Deed Surrender of Deed. to the Tenant of the Land Noys Max. p. 73. Confirmation Defined Confirmation is a strengthening and making good of an Estate formerly had and yet voidable or defeasible though not presently void by him which hath a better or longer Estate in the thing granted than the Tenant thereof hath Lit. sect 522. West page 1. Lib. 2. sect 457. And it is made by the words have ratified approved and confirmed similia Defined Noy in his Max. saith Confirmation is when one ratifieth the Possession as by Deed to make his Possession perfect or to discharge his Estate that may be defeated by anothers Entry Noys Max. p. 76. Landlord and Tenant p. 106. saith A Confirmation is the Conveyance of an Estate or Right that one hath unto Lands or Tenements to another that hath the Possession thereof or some Estate therein Defined whereby a voidable Estate is made sure and unavoidable or whereby a particular Estate is increased and â—nlarged and though sometimes it may pass by the words dedi conâ—essi yet the most proper words â—re confirmavi ratificavi approâ—avi which do signifie ratum firâ—um facere supplere omne defectum â—nd he that makes the Confirmaâ—ion is called the Confirmer and â—e to whom 't is made the Conâ—rmee Co. Lit. 295. Bract. 1. Lib. 2. â—8 And there are two kinds of Conâ—â—rmation Two sorts of Confirmations Confirmation in Deed â—he other implied by Law Conâ—irmation by Deed is when the Act done or Deed made is inâ—ended for a Confirmation Conâ—irmation implied Implied is when the Law â—y construction makes a Confirmation of a Deed made to another purpose and both these are always in Writing Co. Rep. 9. fol. 142. Co. Lit. fol. 295. Shephards Touch-stone C. 18. p. 311. Where it effecteth If a Tenant for Life will granâ— a Rent-charge in Fee then hâ— in the Reversion may confirm the same Grant where a Man by his Entry may defeat an Estate there by his Deed of Confirmation he may make the Estate good Noyâ— Max. 77. The words A Confirmation to charge aâ— Estate must have words to shew what Estate he shall have Ibid. A Confirmation cannot chargâ— Cannot effect an Estate that is determined by express Condition or Limitation Ibid. Confirmation to Tenant for Life of his Estate only for an hour shall be good for Life For an hour good for Life and so 〈◊〉 made to a Tenant in Fee it shalâ— be good for ever Ibid. A Lease for Years may be confirmed for a Time or upon Condition Upon Condition or for a piece of the Land Ibid. But if a Franktenement be as afore it shall enure to the whole absolutely Noy Ibid. To confirm the Estate of Tenant for Life to his Heirs Word Heirs to be observed cannot be but by Habendum the Land to him and his Heirs and therefore it is good to have such an Habendum in all Confirmations Ibid. In a Confirmation new Service may not be reserved and old may be abridged Ibid. Confirmation hath relation to release and where he that as before hath a better Title in the Land than the Tenant releaseth to the Tenant this is a Confirmation West pa. 1. Lib. 2. sect 457. A Confirmation made by him that at the time of the making thereof had no Right is void Noys Max. p. 74. And so if a Right come to him afterwards unless it be with Warranty and then it shall bar him of all Right that shall come to him after the Warranty made Ibid. Where voidable But note A Confirmation made to one Disseisor shall be voidable to the other so shall not a Release Ibid. p. 77. Note That if the King for him and his Heirs grants Catalla felon ' fugitivorum or the like which is in grant and dies the Grantee needs no Confirmation of the new King Where necessary but if it be a Fair or Market or the like and it is abused or misused as it may be or if it be a judicial or ministerial Office or Power as to be a Justice oâ— Peace Escheator or the like there he ought to have a Confirmation of the new King See Brooks Tit. Confirmation 19 29. 1 R. 3.4 In a Confirmation it is not amiss in the Premisses of the Deed specially to recite the Estate Estate to be recited of the Tenant which must be confirmed and also the Estate of him that shall confirm and to expresâ— the Consideration thereof if any such be West Symb. part 1. Lib. 2 sect 457. Revocation and New Declaration This seems to be dependant upon some former Deed or Conveyance being a Reservation by Covenant to revoke a Precedent and by Declaration to create a new Estate of the Lands after which the Lands settle accordingly Will. The last of these Conveyances â—s a Will in Writing Wills in Writing which course
of Conveyance was first ordained by a Statute made the 23 of H. 8.1 When first of force before which Statute no Man might give Land by Will except it lay â—n some Burrough-Town where â—here was a special Custom That Men might give their Lands by Will as it is in London and many other Places The not giving of Lands by Will The Reason was thought to be a defect by the Common Law that Men in the Wars or suddenly falling Sick had not power to dispose of their Land except they would make a Feoffment levy a Fine or suffer a Recovery which lack of time would not permit And for Men to do it by those means so as they could not undo it again was thought hard besides even to the last hour of Life Mens Minds might alter upon further proof of their Children or Kindred or by encrease of Children or for Debt or for defect of Servants or Friends For lack of Wills Men used the following Device For which cause it was thought reason that the Law should permit him to reserve to the last instant the disposition of his Land and yet then also to give him a means to dispose of it how he pleased which seeing it did not Men used this Device following The Device They conveyed the full Estate in their Lands in their good Health to Friends in Trust A Feoffment in trust to Friends called properly Feoffees in Trust and then they declared by their Wills how these Friends should dispose of their Lands and if those Friends would not perform it Who were compelled to Perform it the Court of Chancery was to compel them by reason of the Trust and this Trust was called the use of the Land so as the Feoffees had the Land and the Party himself had the Use which Use was an Equity to take the Profits himself and that the Feoffees should make such Estates as he should appoint them and if he appointed none then the Use was to go to the Heir as the Estate it self of the Land should have done for the Use was to the Estate like to the Shadow following the Body But observe that by this course of putting Lands in Use there were many inconveniencies for this Use that first grew of a reasonable Cause Many Inconveniencies grew thereby as a Man knew not against whom to bring his Action The Wife defrauded Husband defrauded Lord defrauded Creditor defrauded Tenant defrauded to give Men liberty to dispose their own was turn'd to defraud many other just and reasonable Rights as namely A Man that had cause to sue for his Land knew not against whom to bring his Action nor who was Owner of it the Wife was defrauded of her Dower the Husband of being Tenant by the Courtesie the Lord of his Wardship Heriot and Escheat the Creditor of his extent for his Debt the poor Tenant of his Lease for the Rights and Duties were given from him that was Owner of the Land and another who was not the old Owner And Cestuy que use took the Profits whose Estate was not liable to Dower Debts or Forfeiture for Treason whom we call the Feoffor but Cestuy que Use he to whose use the Feoffment was made should take the Profits and have power to dispose the Land by his direction to the Feoffees and yet he was not such a Tenant nor so seized of the Land as that his Wife could have Dower or the Land be extended for his Debts or that he could forfeit it for Treason or that his Heir could be in Ward for it Cestuy que Use could not be in Ward or make Leases or any Tenure of Duty fall to the Lord by his Death or that he could make any Lease of it The Frauds partly remedied by 1 R. 3. 4 H. 7. 16 H. 8. Action against him that took the Profits Which Frauds as by Degrees of times they increased were remedied by many Statutes as namely by the Statute of 1 H. 7. 1. it was appointed that the Action might be brought against him that took the Profits Frauds yet increased which was the Cestuy que Use he to whose use the Feoffment was made which Frauds nevertheless daily multiplying in the end the Parliament of 27 H. 8. purposing to take away all the Uses Another remedy and to reduce the Laws to the ancient form of conveying Lands by publick Livery and Seisin Fine or Recovery To carry the Estate from the Friends in Trust presently to Cestuy que Use and so this device ended did ordain that when Lands were put in Trust or Use there the Possession and Estate should be presently carried out of the Friend in Trust and setled and vested in him that had the Use for such term and time as he had the Use See the Statute And by this Statute of 27 H. 8. The Remedy worse than the disease and therefore the power of disposing Lands by Will was clean taken away amongst these Friends and so this Statute did as it were dispendere justum cum impio take away what might seem reasonable by a means less reasonable Whereupon in the 32 of H. 8. 1. Wills in Writing began Another Statute was made to give Men power to give Land by Will which took away many Inconveniencies But this Statute was limited Were limited by many particulars as to be seized in Fee-simple to be wholly seized and not joyntly with restraint to Lands held in Capite by Knight-Service of the King that a third of the whole should descend to the Heir to answer Wardship Livery and Primer Seisin to the Crown Were remedied But by Statute 12. Car. 2. Capâ— 4. All Wardships Tenures in Capite Livery and Primer Seisins and other Dependences were taken away and the Act 32 H. 8. cap. 6. 33 H. 8. cap. 22. repealed How the Will must be signed and subscribed And by the Statute 29 Car. 2. For prevention of Frauds declares that all devises of Lands or Tenements deviseable either by the Statute of Wills or by force of the Custom of Kent or of the Custom of any Burrough or any other particular Custom shall be in Writing signed by the Devisor or some in his presence by express directions and subscribed in his presence by three or four credible Witnesses or else to be utterly void See the Statute Devise in Writing revocable by Writing only This Clause does not say the Witnesses shall subscribe And further That no Devise in Writing shall be revocable but by some other Will or Writing declaring the same or by burning cancelling tearing or obliterating the same by the Testator himself or by his directions and consent in his presence the Writing to be signed in the presence of three or four Witnesses declaring the same See the Statute That if any Cestuy que Trust The Heir of Cestuy que Trust chargeable for Assets die leaving a Trust in
such Lands or Tenements of the Chief Lord of the Fee by the same Services and Customs by which his Feoffor before held the same which Statute was made for the advantage of Lords And at this day where the Fee-simple passeth the Tenendum must be of the Chief Lords of the Fee c. for no Man since the said Statute could ever convey Lands in Fee to hold of himself except the King And note That where Lands c. are conveyed in Fee though there be no Tenendum at all mentioned yet the Feoffee shall hold the same in such manner as the Feoffor held before Quia fortis est Legis Operatio the Statute so determines Noy 151 152. Thirdly The Reddendum which reserves some new Thing to the Grantor c. and is usually made by the Words Yielding Paying Doing Reserving Finding c. And reserves what was not before Tenendum what or abridges the Tenure of what was before and it is term'd an adjunct proper to the Consequence of Instruments and is the Reserservation of a Rent Suit or Service if any be reserved Wests Symb. Lib. 1. sect 55. If a Rent be reserved it must be out of a Messuage and where a Distress may be taken and not out of a Rent Noy 69. And the Heir shall not have that which is reserved if it be not reserved to him by special words Noy 70. If a Man makes a Feoffment of Lands and reserves any part of the Profits thereof as the Grass or the Wood that Reservation is void Void Reservation because it is repugnant to the Feoffment Ibid. A Man by a Feoffment Release Confirmation or Fine may grant all his Right in the Land saving unto him his Rent-charge Ibid. Nota. Things that are given only by taking and using as Pasture for four Bullocks or two Loads of Wood cannot be reserved but by way of Indenture and then they shall take effect by way of Grant of the Grantor during his Life and no longer without special words Ibid. Fourthly Warranty Warranty what Warrantize it is a Verb used in the Law and as Littleton saith maketh the Warranty and is the cause of Warranty and no other Word in the Law But it may be understood only of an express Warranty in Deed and of a Warranty annexed to Lands for there are other Words which will extend and inure sufficiently to warrant Chattels c. and which will imply a Warranty Words implying Warranty in Law as Dedi c. Excambium c. Glanvil Lib. 3. c. 1. vel in Excambium or Escambium datione Lit. in his Chapter of Parceners teacheth that Partition implyeth a Warranty in Law The Feoffor by the Words of Dedi concessi shall be bound to Warranty during his own Life Noy 84. There are three manners of Warranties Viz. Warranty Lineal Warranty Collateral and Warranty which commences by Disseisin Vide Littleton Chap. Warranty The first is when one by Deed bindeth both himself and his Heirs to Warranty Lineal Warranty after his Death this Warranty descendeth to and upon his Heir The second is in a Transverse or overthwart Line so that the Party upon whom the Warranty descendeth Collateral Warranty cannot convey the Title which he hath in the Land from him that was the maker of the Warranty Warranty by Disseisin The third and last is where a Man unlawfully entreth upon the Free-hold of another thereof disseising him and conveyeth it with a Warranty Noy 3.83 Lineal Warranty barreth him that claimeth Fee and also Fee-tail with Assets in Fee Ibid. How it barreth Collateral Warranty is a Bar to both except in some Cases that be remedied by Statute as Warranty by the Tenant by the Courtesie except he hath enough by descent by the same Tenant Ibid. Warranty by Disseisin barreth not at all Warranty descendeth How Warranty descendeth always to the Heir at the Common Law viz. the eldest Son and followeth the Estate and if the Estate may be defeated the Warranty may also Noy 84. It barreth not the second Son in Gavelkind although all the Sons shall be vouched and not the eldest alone yet he alone shall be barred Ibid. Every Warranty which descends doth descend to him that is Heir to him which made the Warranty by the Common Law Noy 154. Cowels Interp. Title Warranty saith Nota. That under the word Haeredes are comprised all such as the first Warranters Lands come unto afterwards either by descent or otherwise ex causa lucrativa so that if a Man have twenty Children yet if he give his Land to a Stranger leaving his Children no Land that Stranger in this case is his Assignee and is contain'd under this word Heir so that if he commit Felony after such Warranty covenanted and forfeit his Lands to his Lord by Escheat the Lord is quasi haeres in this case and liable to the Warranty formerly passed To this may be joyned the word Defend Defendemus being used in Feoffments c. whereby as Bracton saith The Feoffor bindeth himself and his Heirs to defend c. Si quis velit servitutem ponere Rei datae contra formam donationis c. Fifthly The Covenants Covenants what containing the Terms of Granting and Holding being either real or personal and inherent or collateral must contain Things lawful and possible to be done A Covenant is the consent of two or more in one self thing to give or do somewhat West part 1. Lib. 1. sect 4. And there is a Covenant in Law and a Covenant in Deed or Covenant express and Covenant in Law Covenant in Law a Covenant in Law is covert or hid and to be implied as if the Lessor do demise c. to the Lessee for a certain Term the Law intendeth on the Lessees part that the Lessee shall during his whole Term quietly enjoy his Lease against all lawful Incumbrances Cowels Interp. Title Covenant Covenant in Deed. Covenant in Deed or Covenant express is manifest and that which is expresly agreed between the Parties and this is the Covenant we now intended which as aforesaid may be either real or personal Fitz. N.B. f. 145. A Covenant Real Covenant Real is whereby a Man tieth himself to pass a Thing real as Lands or Tenements as a Covenant to levy a Fine c. A Covenant meerly personal Covenant Personal is where a Man covenanteth by Deed with another to build him a House or any other thing or to serve him or to enfeoff him c. Cowels Interp. Tit. eod Covenant collateral Covenant Collateral is that which cometh in or is adhering of the side as Collateral Assurance is that which is made over and beside the Deed it self Note also Nota. A Bond for performance is termed a Collateral Assurance because it is external and without the essence of the Covenant Cowels Int. Tit. Covenant The words of Covenants are Words of Covenant
Covenant Grant Promise and Agree expressing the thing agreed upon by apt words and there be Deeds made altogether of Covenants whereof you may see good store in West Lib. 2. sect 57 58 59 60 c. Nota All Covenants are to be made on either side according to every several Contract as to be saved harmless or discharged to be seized in Fee c. To have power to sell to be Owner of the Tenements or Chattels sold to make further assurance for quiet enjoyment c. Sixthly The Conditions which are procedent or subsequent to the Estate Conditions what A Condition is generally a Rule Manner or Law annexed unto Mens Acts staying and suspending the same and making it uncertain whether they shall be or no For a Condition is properly said to be when any thing is referred to any incertain Chance West Symb Lib. 2 â—â—ct 110. which may happen or not happen The Words of a Condition The words of a Condition are Sub Conditione Ita quod Si Contingat Proviso semper i. e. Under Condition So that If it shall happen Provided always and the like But the words To the effect with that intent to pay c. do not make a Condition in Feoffments and Grants if it be not in the Case of the King or in the Case of a Will Landlord and Tenant page 34. Note Nota. There are two manners of Conditions one expressed by Words and called a Condition in Deed the other implied by Law and called a Condition in Law A Condition in Deed Condition in Deed. or express Condition is knit and annexed by express words to the Lease or Grant for example If I make a Lease for Years reserving Rent to be paid at such a Feast upon Condition That if the Lessee fail of payment at the day that then it shall be lawful for me to re-enter A Condition implied or Condition in Law Condition in Law is when a Man grants to one the Office to be Keeper of a Park Steward Bailiff or such like for Term of Life here the Law implieth a Condition That if he doth not truly and faithfully execute his Office then it shall be lawful for the Grantor to discharge him thereof Nota. Note also All Conditions are as aforesaid either precedent and going before the Estate and are executed or else they are subsequent and following after the Estate and to be executed Condition precedent Condition precedent doth gain and get the Thing or Estate made upon such Condition by the performance of the same as when an Estate is made to a Man for Life upon Condition That if the Lessee for Life will pay to the Lessor 20 l. at such a day then he shall have Fee-simple here the Condition precedes and goes before the Estate in Fee-simple and upon the performance of the Condition the Lessee doth gain and get the Fee-simple if Livery and Seisin were given Error was brought in Ejectment out of C. B. in a special Verdict The Case was John Hamond having two Sons John and Thomas being seized of a Copyhold Estate in Fee in nature of Burrough English surrenders to the use of himself for Life and after his Decease to the use of his Son John and his Heirs and Assigns for ever if he attain the Age of twenty one Years Provided That if my said Son John do die within Age then it shall go to my right Heirs Holt pro Quer ' in Error ' said The Question was If it was a Condition precedent or subsequent and held it was a Condition precedent and cited Plowden 35. and said A subsequent Condition is to be taken strictly and must have proper words but a precedent Condition may not Lit. 330. 1 Inst 103. Lit. sect 301. Jones Spring and Cesar fol. 389. Pollexfen pro Def. said There may be a Remainder upon a Condition precedent and Judgment was affirmed Mich. 26 Car. 2. Bockeril versus Hamond Ro. 120. A Condition subsequent Condition subsequent doth keep and continue the Thing or Estate made upon Condition by the performance thereof as when one grants to A. B. his Mannor of G. in Fee-simple upon Condition that the Grantee shall pay to him at such a day 20 l. or else that his Estate shall cease here the Condition is subsequent and following the Estate in Fee-simple and upon the performance thereof doth keep and continue the Estate Terms del Ley verb. Condition Void Conditions Nota If an Estate he made and the Condition against the Law the Estate 's good the Condition void Noy p. 78. If the Estate beginneth by the Condition then both are void Ibid. Conditions repugnant the Estate good the Condition's void Ibid. Conditions impossible are void and the Estate good Ibid. It shall not enlarge any Estate Ibid. No Man shall take advantage of a Condition except he be privy or party to it When the word Proviso Of the Word Proviso maketh a Condition it must have these three Qualities First it must not depend upon another Sentence or have Reference to any other part of the Deed for if it do then it is but a Qualification or Limitation of the Sentence or of that part of the Deed When and how it maketh a Condition as Provided that the Person of the Grantee shall not be charged Secondly it must be the word of the Bargainor Feoffor Donor Lessor c. Thirdly it must be compulsory to inforce the Bargainee Feoffee Donee Lessee c. to do an Act and where these Things concur in a Proviso it doth make a Condition in what place soever it be placed For cujus est dare ejus est disponere Landlord and Tenant p. 61. But note the Case put afterwards Nota Sometimes the word Proviso or Provided doth make a Covenant sometimes an Exception sometimes it is taken for a Reservation sometimes for an Explanation Ibid. When a Lessor letteth Lands Provided that the Lessee shall not alien without the assent of the Lessor under pain of forfeiture Proviso maketh a Condition here it is a Condition Ibid. If a man have two Mannors both of them named Dale and he leaseth his Mannor of Dale to one Provided that he shall have the Mannor of Dale in the occupation of A. B. This Proviso is an Explanation An Explanation Ibid. If a man lease a House and the Lessee covenants that he will repair it provided always the Lessor is contented to find the great Timber This Proviso is a Covenant A Covenant Ibid. If a man lease his House to D. provided he will have a Chamber thereto belonging to himself This Proviso is an Exception An Exception of the Chamber Ibid. If I make a Lease of Lands rendring Rent at such Feasts as J. S. shall name provided that the Feast of St. John Baptist shall be one here the Proviso is taken for a Reservation A Reservation Vid. Land-Lord and Tenant p. 61 62.
1688. Attorn and become Tenants unto the above named A. B. according to the purport of the Lease within mentioned Notice of the Grant having notice of the said Grant and for proof thereof every one of them did give unto the said A. B. one Peny in the Name of Attornment Witness hereto G. H. I. K. L. M. Here let the Tenants set their Names A. B. C. D. E. F. It may be indorsed together with the Livery of Seisin Indorsed with Livery of Seisin to an Attorny thus Memorandum That Possession and Seisin of the Lands and Tenements within mentioned was taken by c. and afterwards delivered to the within written S. P. 10. die Junij Anno Domini 1688. to the use within written And also the same day the within named J. V. Tenant of the Premisses for the Term of his Life Quere if the Tenant that attorns be named in the Deed otherwise that Clause to be left out did attorn Tenant to the said S. P. according to the Tenor of this present Deed and the said J. V. did give unto the said S. P. one Peny in the name of Attornment in the presence of It may be declared by Deed Poll thus Attornment declared by Deed Poll. To all People c. I A. B. of c. send greeting Whereas I the said A. B. have and hold for the Term of my Life one Tenement with the Appurtenances lying and being in c. the Reversion of which said Tenement should belong to one C. D. and being at present satisfied that the said C. D. hath by his Deed bearing date c. granted bargained sold and confirmed unto E. F. of c. the Reversion of the said Tenement as by the said Deed may appear Know ye that I the said A. B. Tenant of the said Tenement of my free will have attorned unto the said E. F. by payment unto him of one Peny in the name thereof and do by these Presents as much as in me lies ratifie and confirm unto the said E. F. the Reversion aforesaid In witness c. See West Symb. part 1. Lib. 2. sect 383 384 385 c. Note A voluntary Attornment where it is needful may be made by an Infant Voluntary Attornment by an Infant or one that is Deaf and Dumb may do it by signs but one that is not Compos mentis cannot make an Attornment Co. Lit. fol. 315. Co. Rep. fol. 84. Note It must be certain Certainty Co. Lit. 310. In all Cases for the most part where there is no means provided by Law to compel the Tenant to attorn in such Cases Attornment Deed or in Law is not necessary Where it needs not as in the grant of a Seigniory c. by Letters Patents from the King or where such things are granted by matter of Record from a Subject to the King but a Seigniory a Rent-charge a Remainder or a Reversion will not pass without Attornment but by matter of Record Co. Lit. 314 321. Co. 6. Rep. 68. Noys Max. p. 64. Attornment necessary upon a Devise Devise Noys Max. p. 65. In all Cases where tho Grant is in the personalty there needs no Attornment Needless as in Annuities which do charge the Person only and not the Land And in all Cases where there is an Attornment in Law there needs none in Deed M. 3. Jac. in C. B. agreed in Curnocks Case Noy saith in his Maxims p. 65. That if the Tenant have true notice of all the Grant then such Attornment is void Void Attornment But quere Common of Pasture for a certain number or Common of Estovers certain will pass by Granâ— without Attornment Needless for where there is no Tenure Attendance Remainder Rent or Service to be paid or done Attornment is not necessary 31 H. 8. 59. Kitchin 103. a. Note Attornment is a solemn Act and ought to be done Time when it must be done so that notice may be taken of it and therefore Attornment after Sun-set is not good for it shall not be presumed that notice can be taken in the Night M. 23 Car. 1. in B. R. Registr practicale p. 30. Concerning Possessions The difference between Possession and Seisin Difference of Possession and Seisin is A Lessee for Years is possessed Possession what and yet the Lessor is still seized and therefore the Terms of the Law are That of Chattels Seisin what a Man is possessed whereas in Feoffments Gifts in Tail and Leases for Life he is called seized Noys Max. page 20. Of Estates And note that all Estates that have their being are in Possession Reversion Remainder or in Right but of all these Possession is the principal Idem page 119. There are two Degrees of Possession in Law and Deed. In Deed is the actual Possession Possession in Deed. In Law In Law is that Possession which the Law it self casteth upon a Man before any entry or pernancy of the Profits Example As where the Father dieth seized of Lands in Fee and the same is to descend to the Son as his next Heir in this Case before any Entry the Son hath a Possession in Law Ibid. p. 120. And so of a Reversion expectant Reversion Expectant c. or a Remainder dependent upon a particular Estate for Life Example As if Tenant for Life die he in Reversion or Remainder before his Entry hath only a Possession in Law And note That all manner of Possessions that are not Possessions in Fait or Deed are only Possessions in Law Noys Max. p. 120. Of a Particular Estate A Particular Estate is such as is derived from a General Estate Defined by seperation of one from the other Noys Max. p. 117. As an Estate Tail for Life or for Years created by Gift or Grant out of a Fee-simple is in the Donee or Lessee a particular Estate in Possession derived and separated from the Fee-simple Ibid. similia And of particular Estates Twofold some are created by Agreement between the Parties and some by Act of Law By Agreement By Agreement as those before specified By Law By Law as Estates in Tail after possibility of Issue Extinct Estates by the Courtesie of England Dower c. for in Dower the Party is compellable by Law to compleat the Estate Ibid. Of a Remainder Defined A Remainder is the Residue of an Estate at the same time appointed over and must be grounded upon some particular Estate given before granted for Years or Life and so forth Noys Max. p. 31. When it begins And ought to begin in Possession when the particular Estate endeth there may be no mean time between either by Grant or Will Ibid. Where cannot be No Remainder can be made oâ— a Chattel Personal A Remaindeâ— cannot depend on a Matter ex posâ— facto to be done in futuro as upon Estate Tail upon Condition thaâ— if the Tenant