part fo 70. 71. If there be Grandfather Father and Son and the 〈◊〉 disseise the Grandfather and make a Feoffment in fee the Grandfather dyeth the Father against his own Feoffment shall not enter but if he dye his Son shall enter And so note a diversity between a Release a Feoffment and a Warrant A release in that case is void a Feoffment is good against the Feoffor but not against his heir a Warrant is good both against himself and his heirs 39. H 6. 43 21. E 4. 81. 9 H 7. 1. b 2 E 3. 38 1â— H 4. 33. Note three diversities 1. Between a Power and an Authority 〈◊〉 a Right 2. Between Powers and Authorities themselves 3. Between a Right and a possibility 43 E 3. 17. 42 E 3. 24. per Finchden 17 E 3. 67. As to the 1. If a man by his will deviseth that his executors shall sell his land and dieth if the executors release all their right and title to the heir this is voidâ— for they have but onely a bare Authority And so it is if cestuâ— que use had devised that his Feoffees should have sold the land albeit they had made a Feoffment over yet might they sell the Vse for their Authority in that case it not given away by the liverâ— 1 H 7. 11. As to the second there is a diversity between such Powers and Authorities as are onely 〈◊〉 the use of a stranger and nothing for the benefit or him that made the Release as in the case before and a Power or Authority which respecteth the benefit of the Releasor as in these usual powers of revocation when the Feoffor c. hath a power to alter change determine or revoke the uses being intended for his benefit he may release and where the estates before were defeasible he may by his release make them absolute and seclude himself from any alteration or revocation l. 1. Albanâ—â—s case 10. H 6. 4. As to the third before Iudgement the Plaintiff in an action of debt releaseth to the Bail in the Kings Bench all Demands and after Iudgement is given this shall not baâ— the Plaintiff to have execution against the Bail because at the time of the release be had but a meer possibility and neither Ius in re nor Ius ad rem but the duty is to commence after upon a contingent and therefore could not be released presently So if the Conusee of a Statute c. release to the Conusor all his right in the land yet afterwards he may sue execution for he hath no right in the land till Execution but onely a possibility 25 Ass p. 7. 27 E 3. Execut. 130. P. 38. El. Rot. 521. Borough and Grey Sect. 447. En Releases de tout le droit que home ad en cert ' terres c. il covient a celuy a que le release est fait en asc ' case que il ad le franktenement en les terres en fait ou en ley al temps de release sait c. This must be intended of a bare right and not of a release of right whereby any estate passeth as to a lessee for years 49 E 3. 2â— Also it must be intended of a right of Freehold at the least and not to a right to any term for years or Chattels real as if lessee for years be ousted and he in the reversion disseised and the disseisor maketh a lease for years the first lessee may release unto him all which is implyed in the first c. Also in some case a Release of a right made to one that hath neither Freehold in deed nor in Law is good as the Demandant may release to the Vouchee and yet the Vouchee hath nothing in the Land for that when the Vouchee enters into the Warranty he becomes Tenant to the Demandant and may render the land to him in respect of the privity but an estranger cannot release to the Vouchee because in rei veritate he is not Tenant of the Land 7 E 4. 13. 20 H 6. 29. 5 H 7. 41. 18 E 3. 12. 8 H 4. 5. vide Sect. 490 491. And so it is if the Tenant alien hanging the Praecipe the Release of the Demandant to the Tenant to the Praecipe is good and yet he hath nothing in the land 20 E 4. 14. 12. Ass p. 41. In time of vacation an Annuity that the parson ought to pay may be released to the Patron in respect of the privity but a release to the Ordinary onely seemeth not good because the Annuity is Temporal 8 E 3 81. 46 E 3 6. b 21 H 7 41. If a disseisor make a lease for life the disseisee may release to him for to such a release of a bare right there needs no privity But if the disseisor make a lease for years the disseisee cannot releaâ— to him because he hath no estate of free hold And yet in some case a right of Freehold shall drown in a Chattle as if a feme hath a right oâ— Dower shee may release to the Guardian in Chivalry and her right of Freehold shall drown because the Writ of Dower doth lie against him and the heir shall take advantage by it And note That by a Maxime a right of entry or a chose in action cannot be granted or transferred to a stranger Mirr cap. 2 S 17. If a man be disseised of an acre of land the disseisee hath jus proprietatis the disseisor hath jus possessionis and if the disseisee release to the disseisor he hath jus proprietatis possessionis Reg. When a naked right to land is released to one that hath jus possessionis and the other by a mean title recovers the land from him the right of possession shall draw the naked right with it For example if the heir of the disseisor being in by discent A. doth disseise him the disseisee release to A. now hath A. the meer right to the land but if the heir of the disseisor enter into the land and regain the possession that shall draw with it the meer right c. Br. l 2. f. 32. Brittfâ— 8â— 121. But if the Donee in Tail discontinue in fee now is the reversion of the Donor turned to a naked right if the Donor release to the discontinuee and dye and the issue in Tail recover the land c. he shall leave the reversion in the discontinuee for the issue in Tail can recover but the estate Tail onely and the Donor cannot have it against his release but if the disseisee enter upon the heir of the disseisor and infeoff A in fee the heir of the disseisor recover the whole estate that shall draw with it the meet right and leave nothing in the Feoffee Another diversity is observable when the naked right is precedent before the accquisition of the defeasible estate for there the re-continuance of the defeasible estate shall not draw with it the preceding right As
then did the discontinuance of the Estate taile of B. which passed by his livery cease and consequently the entry of the issue of B. lawfull * Also nate that a discontinuance made by the husband did take away the entry only of the wife and her heirs by the common Law and not of any other which claimed by title paramount above the discontinuance As if lands had beene given the husband and wife and to a third person and to their heires and the husband had made a feoffment in fee this had been a discontinuance of the one moity and a disseisin of the other moity if the husband had dyed the survivor should have entred in the whole for he claimed not under the discontinuance but by title paramount from the first feoffor and seeing the right by law doth survive the Law doth give him a remedy to take advantage thereof by entry for other remedy for that moity he could not have Sect. 600. Fo. 328 a. It is a Rule in Law that the disseisee or any other that hath a right onely by his release or confirmation cannot make any discontinuance because nothing can passe thereby but that which may lawfully passe 9 E. 4. 18. 12 E. 4. 11. 5 H. 4. 8. 21 H. 6. 58. By a feoffment the freehold doth passe by open livery to the feoffee and by a Release a bare right Sic nota diversit Sect. 601 602 603. fo 328. b. 329. a. A warranty being added to a release or confirmation and descending upon him that right hath to the lands maketh a discontinuance otherwise it is out of the reason of the Law and worketh no discontinuance if the warranty discend upon another If Tenant in taile release to his disseisor and bind him and his heires to warranty this is a discontinuance For if the issue in taile should enter in this case the warranty which is so much favoured in Law should be destroyed and therefore to the end that if Assets in fee simple do descend he to whom the release is made may plead the same and barre the demandant by which meanes all rights and advantages are saved Sect. 604. When a Bishop c. make an Estate Lease grant or rent-charge warranty or any other act which may tend to the diminution of the revenues of the Bishoprick c. which should maintaine the successor there the privation or translation of the Bishop c. is all one with his death But Where the Bishop is patron and ordinary and confirmeth a Lease made by the parson without the Deane and Chapter and after the Parson dyeth and the Bishop collateth another and then is translated yet his confirmation remaineth good for the revenues that are to maintaine the successor are not thereby diminished and so it is in case of resignation 29 E. 3. 16. ibid. garr 99. cl contr Vide Sect. 608 609 610 611 612 613 Fo. 330 331. a. Tiels choses queux passunt en asc ' cases de tenant en le taile tantsolement per voy de grant ou per confirmation ou per releaserien poit passe pur faire estate a celuy a que tiel grant ou confirmation ou release est fait forsque ceo que le tenant en taile poit droitulerment faire ceo ne forsque pur terme de la vie c. Hereby it appeareth that a feoffment in fee albeit it be by parol is of greater operation and estimation in Law then a grant of a reversion by Deed though it be inrolled and Attornment of the lessee for yeares of a release or a confirmation by Deed. Also having regatd to the issue in taile and to them in reversion or remainder Tenant in taile cannot lawfully make a greater Estate than for terme of his life But in regard of himselfe a release or grant made by him leaveth no reversion in him but put the same in Abeiance so as after such release or grant made he shall not have any action of wast and he shall not enter for a forfeiture c. 13 H. 10. a. Br. Release 95. Sect. 614. Fo. 331. b. The Feoffee of Tenant in taile hath no rightfull Estate having respect to two persons the one is the donor whose reversion is divested and displaced and the other is to the issue in taile who is driven to his action to recover his right Deforciare signifieth to withold Lands or Tenements from the right owner in which case either the entry of the right owner is taken away or the deforceor holdeth it so fast as the right owner is driven to his reall praecipe wherein it is said unde A. eum juste deforceat or the deforceor so disturbeth the right owner as he cannot injoy his owne Brac. l. 4. fo 238. Fleta l. 5. ca. 11. There is a writ called a Quod ei deform and lyeth where Tenant in taile or tenant for life loseth by default by the Staute he shall have a Quod ei deforc against the recoveror and yet he cometh in by course of Law Westm 2. ca. 4. Sect. 615 616 617 618. Fo. 332. a.b. An Advowson is a thing that lyeth in grant and passeth not by livery of seisin 5 E. 3. 58. 21 E. 3 37 38. 43 E. 3. 1. b. 11 H. 6. 4. 5 H. 7. 37. 18 H. 8. 16. El. Dy. 323. b. If a remainder or a rent service or a rent charge or an Advowson or a common or any other inheritance that lyeth in grant be granted by Tenant in taile it is no discontinuance Brac. l. 2. f. 3. f. 266. 318. Brit. fo 187. Mir. ca. 2. S. 17. Fle. l. 3. c. 15. For that it is a maxim in Law That a grant by Deed of such things as do ly in grant and not in livery of seisin do worke no discontinuance But the particulars reason is for that of such things the grant or Tenant in taile worketh no wrong either to the issue in taile or to him in reversion or remaindet for nothing doth passe but onely during the life of Tenant in taile which is lawfull and every discontinuance worketh a wrong 6 E. 3. 56. 4 H. 7. 17. 21 H. 7. 42. 21 H 6. 52. 53. 5 E 4. 3. 21 E. 4. 5. â—2 R. 2. discontinuance 35. Br. 19 E. 3. Br. 468. Pl. Com 435. 18 Ass p. 2. If Tenant in taile of a rent service c. or of a reversion or remainder in taile c. grant the same in fee with warranty and leaveth assets in fee simple and dyeth this is neither bar nor discontinuance to the issue in taile but he may distreine for the rent or service or enter into the Land after the decease of Tenant for life But if the issue bringeth a Formedon in the discending and admitting himself out of possession then he shall be barred by the warranty and Assets 33. E. 3. from 47. 13 H. 7. 10. 36. Ass 8. 4 H. 7. 17. Tenant in taile of a rent disseises the Tenant of the
Land and makes a feoffment in fee with warranty and dyeth this is no disccontinuance of the rent 3 H. 7. 12. 9 E. 4. 22. And where the thing doth ly in livere as Lands and Tenements yet if to the conveyance of the freehold or inheritance no livery of seisin is requisite it worketh no discontinuance As if Tenant in Taile exchange Lands c. or if the King being Tenant in Taile grant by his Letters Patents the Lands in fee there is no discontinuance wrought 38 H. 8. Pat. Br. 10. 1. Pl Com 233. l. 1. f. 26. Altwoods case Of a thing that lyeth in grant though it be granted by Fine yet it is no discontinuance and this is Regularly true 48 E. 3. 23. If Tenant in taile make a Lease for years of Lands and after levy a Fine this is a discontinuance for a Fine is Feoffment of Record and the freehold passeth 15 E. 4. discontinuance 30. But if Tenant in taile make a Lease for his owne life and after levy a Fine this is no discontinuance because the reversion expectant upon a Statute of freehold which lyeth only in grant passeth thereby 6 H. 8. 56 57. Sect. 620. Si Tenant in tail fait Lease a Terme de vie le lesee c. apres tenant in taile grant per son fait le reverson in fee a un auter le tenant a terme de vie attornment mor. vivant le Tenant in taile le grantee del reversion enter c. en la vie le Tenant in taile donque ceo est un discontinuance en fee. For when the revetsion in this case executed in the life of Tenant in taile it is equivalent in judgement of Law to a Feoffment in Fee for the state for life passed by livery 32 E. 3. discontinuance 2. 3 H. 4. 9. 34. Ass 6. p. 4. 38. Ass 6. p. 6. But if the Tenant in taile make a Lease for Terme of the life of the Lessee c. and grant over the reversion and dyeth and after the death of Tenant in taile the Lessee dye the entry of the issue is lawfull because by the death of the Lessee the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also If Tenant in taile make a Lease for life the remainder in fee this is an absolute discontinuance albeit the remainder be not executed in the life of Tenant in taile because all is one estate and passeth by livery and so note a diversity between a grant of a reversion and a limitation of a remainder 21 H. 6. 52 53. B. Tenant in Tail makes a gift in Tail to A. and after B. releases to A. and his heirs and after A. dyeth without issue the issue of the first Donee may enter upon the collateral heir because A. had not seisin and execucion upon the reversion of the land in the demesn as of fee. But if Tenant in Tail make a lease for the life of the lessee and after release to him and his heirs this is an absolute discontinuance because the fee simple is executed in the life of Tenant in Tail If Tenant in Tail of a Manor whereunto an Advowson is appendant make a feoffment in fee by Deed of one acre with the Advowson and the Church becommeth void and the feoffee present Tenant in Tayl dyeth the Church becometh void the issue shall not present untill he hath reconcontinued the acre But if the feoffee had not executed the same by Presentment then the issue in Tail should have presented And so was it at the Common Law of the husband seised in the right of his wife Mutatis mutandis 34 E. 1. Qu. imp 179. 22 E. 3. 6. 17 E. 3. 3. 33 E. 3. qu. imp 196. 23 Ass 8. If the husband and wife make a lease for life by Deed of the wives land reserving a rent the husband dyeth this was a Discontinuance at the Common Law for life and yet the reversion was not discontinued but remained in the wife otherwise it is as if the husband had made the lease alone 38 E. 3. 32. 18. Ass 2. 18 E. 3. 54. 22 H. 6. 24. If Tenant in Tail make a lease for life of the lessee and after grant the reversion with Warranty and dyeth before execution this is no discontinuance because the discontinuance was but for life and the Warranty cannot enlarge the same Bro. Discontinuance 3. 21 H. 7. 11. l. 1. fo 85. l. 10. fo 96 97. If Tenant in Tail make a Lease for life and grant the reversion in fee and the lessee attorn and that grantee grant it over and the lessee attorn and then the lessee for life dyeth so as the reversion is executed in the life of Tenant in Tail yet this is no Discontinuance because he is not in of the grant of the Tenant in Tail but of his grantee 15 E. 4. Discont 30. Vide Sect. 642. fol. 333 b. If Tenant in Tail make a lease for life and after disseiseth the lessee for life and maketh a feoffment in fee the lessee dyeth and then Tenant in Tail dyeth albeit the fee be executed yet for that the fee was not executed by lawful means it is no Discontinuance Sect. 625. Fol. 335. a. Littleton here putteth his case of a reversion immediately expectant upon the gift in Tail Also it is to be intended of a feoffment made to the donor solely or only for if the donee infeoff the donor and a stranger this is a Discontinuance of the whole land 41 Ass 2. 41 E. 3. 2. 28 H 8. Dyer 12. lib. 1. fo 140. in Chudleys case 9 E. 4. 24. b. But if Tenant for life make a lease for his own life to the lessor the remainder to the lessor and estranger in fee in this case forasmuch as the limitation of the fee should work the wrong it enureth to the lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger Nul poit discont ' lestate en taile si non que il discont ' le reversion c. ou le remainder c. 40 Ass 36. 61 Ass 36. 18 E. 3. 45. F N B. 142 a. Pl. Com. 555. And therefore if the reversion or remainder be in the King the Tenant in Tail cannot discontinue the estate Tail But Tenant in Tail the reversion in the King might have barred the estate Tail by a Common recovery untill the Stature of 33 H. 18. cap. 20. which restraineth such a Tenant in Tail but that Common Recovery never barred nor discontinued the Kings reversion 33 H 8. Tail Br. 41. If a feme covert be Tenant for life and the husband make a Feoffment in fee and the lessor enter for the forfeiture here is the reversion revested and yet the Discontinuance remained at the Common Law 27 Ass p. 60. 29 Ass 43. 11 Ass 11. 16. Ass 11 18 E. 3. 45. Sect. 632. Fol. 336. b. Si
5 E. 3. enter cong 42. 15 E. 3. Age 95. 41 E. 3. 18. pe Finchden 22 E. 3. 2 b lib. 1. 15. Sir William Pelhams case Since our Author wrote the statute of 14. El. cap. 8. hath been made concerning this matter Vide l. 3. 60. Lib. 1. fo 15. And Nota That although the discontinuâ—â— groweth by matter of Record yet the Remitter may be brought by matter in paiis Sect. 676. Autor al. Contr. 44 E. 3. 17. 44 Ass 2. 43 Ass 3. Vide Sest 6â—6 Sect. 677. Fo 356. b. In this case the estate is in the feme covert presently by the livery before any agreement by the husband 15. 4. 1. b. 7 H. 6. 17. 1 H. 7. 12. b. 39 E. 3. 30. 57 H. 8. 24. If the wife survive her husband she cannot claim in by the purchase made during the coverture but the law adjudgeth her in her better right 41 E. 3. 18. But if both estates be waivable there albeit the wife prima facie is remitted yet after the decease of her husband she may elect which of the Estates she will As if lands be given to the husband and wife and their heirs the husband make a feoffment in Fee * the Feoffee giveth the husband and wife and the heirs of their two bodies the husband dieth 18 El. Dy. 351. * the Feoffee giveth land to the husband and wife c. If Lands be given to a man and the heirs females of his body and he maketh a feoffment in fee and take back an estate to him and his heirs and dyeth having issue a daughter leaving his wife grossement enseint with a Son and dieth the daughter is remitted and albeit the son be afterward borne he shall not devest the Remitter Sect. 678. Fol. 357. Covin and consent in many cases to do a wrong do choak a meer right and the ill manner doth make a good matter unlawfull 18 E. 4. 2. b. Covina is a secret assent determined in the hearts of two or more to the defrauding and prejudice of another Pl. Com. 546. Wimb If a Disseisor Intrudor or Abator do endow a woman that hath lawful Title of Dower this is good and shall binde him that right hath if there were no covin or consent before the disseisin c. 44 E. 3. 46. 11 H. 4. 60. 44 Aff. 29. 19 H. 8. 12. 18 H. 8. 5. 11 E. 4. 2. 7 H. 7. 11. In all cases where a man hath a rightfull and just cause of action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the covin doth suffocate the right so as the recovery though it be upon a good Title shall not binde or restore the Demandant to his right 41 Ass p. 28. 25 Ass p. 1. 27 Ass 74. 15 E. 4. 4. a. 12. Ass p. 10. If Tenant in Tail and his issue disseise the discontinuee to the use of the Father and the Father dieth and the land descend to the issue he is not remitted against the discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraign the first Warranty 11 E. 4. 2. 15 E. 4. 23. 14 H. 8. 12. 33 H. 6. 5. 12 E. 4. 21. b. A. and B. joyntenants be intituled to a real action against the heir of the disseisor A. cause the heir to be disseised against whom A. and B. recover and sue execution B is remitted for that he was not party to the covin and shall hold in common with A. but A. is not remitted fo 357. b. Nota it is regularly true That a feme covert cannot be a disseisoress by her commandment or procurement precedent nor by her assent or agreement subsequent but by her actual entry or proper act she may be a disseisoress And therefore some do hold that Littleton must be intended that the husband and wife were present when the disseisin was done and others do hold that Littleton is good Law albeit she were absent for if that her procurement or agreement be to do a wrong to cause a Remitter unto her in this special case she shall fail of her end and remitted she shall not be but in this special case she shall be holden as a disseisoress by her covin and consent quatenus to hinder a Remitter F.N.B. 179. g. 12. E. 4. 9. 35 Ass 5. 44. E. 3. 9. 23. 13 Ass 1. Temps E. 1. Waste 128. 16. Ass p. 7. 21. E. 4. 53. 21. H 7. 35. 3. H. 4. 17. Sect. 679. Vide Pl. Com. Amy Townsends Case 12. R. 2. Remit 12. Sect. 680 681. fol. 358. Here note five things 1. That a remainder expectant upon an estate for life worketh no Remitter but when it falls in possession for before his time he can have no action and no Freehold in him 18. H. 8. 3. 2. Though the woman might wave the remainder yet because she is presently by the death of the husband Tenant to the praecipe it is within the rule of Remitter and her power of waiver is not material 3. That a Freehold in Law being cast upon the woman by act of Law without any thing done or assented to by her doth Remitter her albeit she be then sole and of full age vide S. 447. 4. That a Praecipe lieth against one that hath but a Freehold in Law 5. That a woman shall be endowed where the husband hath the inheritance and but a Freehold in Law Brit. 83. b. Sect. 682 683 684 685. Fo. 359. Vide 12. E. 4. Compare these four Sections well together A man absent can neither take Livery nor make Livery without Deed Temps H. 8. Feoffments Br. 72. 40 E. 3. 41 .10 E. 4. 1. a. 15 E. 4. 18. 18 E. 4. 12. 22 H. 6. 12. Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur Et le fits nient conusant de ceo ne agrea a le feoffment c. Here it appeareth That if the Son be Conusant and agreeth to the Feoffment c. This is no remitter to him Vide Sect. 682. If A. be seised in Tail and have issue two Sons and by Deed indented between him of the one part and the Sons of the other part maketh a lease to the eldest for life the remainder to the second in fee and dieth and the eldest Son dieth without issue the second Son is not remitted because he agreed to the remainder in the life of the Father or if the like estate had been made by paroll if in the life of the Father the Tenant for life had been impleaded and made default and he in the remainder had been received and thereby agreed to the remainder after the death of the Father and the eldest Son without issue the second Son should not be remitted because he agreed to the remainder in the life of the Father Sect. 685. Fol. 360. a. Acts of Parliament are to be so construed
which issue is found for the Demandant whereupon he recovereth the Tenant albeit Assets do after descend shall never have a scire fac upon the said Judgement for that by his false plea he hath lost the benefit of the said Statute fol. 366. a. Touching the third sufficient hath been spoken before For the last Nota That if the husband be seized of lands in right of his wife and maketh a Feoffment in fee with Warranty the wife dyeth and the husband dyeth this Warranty shall not binde the heir of the wife without Assets albeit the husband be not Tenant by the Curtesie 8 E. 2. gar 81. 18. E. 3. 51. A Warranty may not onely be annexed to Freeholds or Inheritance corporeal which pass by Livery as houses and lands but also to Freeholds or Inheritances incorporeal which lie in grant as Advowsons and to Rents Common Estovers c. which issue out of Lands or Tenements and not onely to Inheritances in esse but also to Rents Commons c. newly created As a man some say may grant a Rent c. out of land for life in Tail or in fee with Warranty for although there can be no Title precedent to the Rent yet there may be a Title precedent to the land out of which it issueth before the grant of the Rent which rent may be avoided by the recovery of the land in which case the grantee may help himself by a Warrantia Cartae upon the especial matter and so a Warranty in Law may extend to a rent c. newly created and therefore if a rent newly created be granted in exchange for an acre of land this exchange is good and every exchange implyeth a Warranty in Law and so a Rent newly created may be granted for owelty of partition 2 H. 4. 13. 30 H 8. Dyer 42. Temps E. 1. Admeasurement 16. 32 E. 1. Vouch 294. 30 E. 1. Exch. 16. 9 E. 4. 15. 15 E. 4. 9. 29 Ass 13. A man seised of a rent seck issuing out of the Manor of D. taketh a wife the husband releaseth to the Terre-tenant and Warranteth Tenementa praedicta and dieth the wife bringeth a Writ of Dower of the rent the Terre-tenant shall vouch for that albeit the release enured by way of Extinguishment yet the Warranty extended to it and by Warranty of the land all rents c. issuing out of the land that are suspended or discharged at the time of the Waranty created are waranted also Vide Sect. 741. 45 E. 3. Vouch. 72. 9 E. 3. 78. 18 E. 3. 55. 30 E. 3. 30. 21 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 10 E. 4. 9. b. 21 E. 4. 26. 14 H. 8. 6. 30 H. 8. Dyer 42. Sect. 698. Fo. 366. b. A Warranty that commenceth by disseisin is so called because Regularily the Conveyance whereunto the warranty is annexed doth work a disseisin The Example that Littleton putteth of this kinde of Warranty have four qulities 1. That the disseisin is done immediately to the heir that is to be bound l. 5. fo 79. Fitzh c. and yet if one brother make a gift in Tail to another and the Uncle disseise the Donee and infeoff another with Warranty the Uncle dyeth and the Warranty descend upon the Donee and then the Donee dyeth without issue albeit the disseisin was done to the Donee and not to the Donor yet the Warranty shall not binde him 31 E. 3. garr 28. The Father the Son and a third person are joyntenants in fee the Father maketh a Feoffment in fee of the whole with Warranty and dyeth the Son dyeth the third person shall not * avoid the feoffment * onely for his own part but also for the part of the Son and he shall take advantage that the Warranty commenced by disseisin though the disseisin was done to another fol. 367. a. 2. That the Warranty and disseisin are simul and semel and yet if a man commit a disseisin of intent to make the feoffment in fee with Warranty albeit he make the feoffment many years after the disseisin yet the Law shall adjudge upon the whole matter and by the intent couple the disseisin and the Warranty together 19 H. 8. 12. l. 5. fo 79. b. 3. That the Warranty c if it should binde should binde as a collateral Warranty and therefore commencing by disseisin shall not binde at all A lessee for years may make a feoffment and a fee simple shall passe so as albeit as to the lessor it worketh by disseisin yet between the parties the Waranty annexed to such estate standeth good upon which the feoffee may vouch the feoffor or his heirs as by force of a lineal Warranty Note there is a feoffment de jure and a * feoffment de facto If the Lord be Gardein of the Land or if the Tenant make a lease to the Lord for years or if the Lord be Tenant by statute Merchant or Staple or by Elegit of the Tenancy and make a feoffment in fee he hereby doth extinguish his Seignory although having regard to the lessor it is a disseisin Vide Sect. 611. Brit. ca. Disseisin 50 E. 3. 12. b. 8 H. 7. 5. 19 E. 2. Ass 400. 3 E. 4. 17. 12 E. 4. 12. 10 E. 4. 18. F.N.B. 201. l. 3. f. 78. Fermors case * Temps E. 1. Counterplea de Vouch. 126. 50 E. 3. ibid. 124. The 4. quality is a disseisin but that is put for an example For if the Tenant dyeth and an Ancestor of the Lord enter before the entry of the Lord and make a feoffment in fee with Warranty and dyeth this Warranty shall not binde the Lord because it commenceth by wrong being in nature of an Abatement sic de similibus Sect. 700. Fol. 367. b. If the purchase were to the Father and the Son and the heirs of the Son and the Father maketh a feoffment in fee with Warranty if the Son enter in the life of the Father and the feoffee re-enter the Father dyeth the Son shall have an Assize of the whole 13 Ass 8. 13 E. 3. gar 24. 25. 37. 22 H. 6. 51. 8 H. 7. 6. But if the Son had not entred in the life of the Father then for the Fathers moity it had been a barre to the Son for that therein he had an estate for life and therefore the Warranty as to that moity had been collateral to the Son and by disseisin for the Sons moity and so a Warranty defeated in part and stand good in part If a man of full age and an Infant make a feoffment in fee with Warranty it is good for the whole against the man of full age and void against the Infant For albeit the feoffment of an Infant passing by Livery of seisin be voidable yet his Warranty which taketh effect onely by Deed is meerly void Temps E. 1. Voucher 207. 39. E. 3. 26. John Londons Case 14. H. 6. Sect. 701. Fo 368. a. b. Duo non possunt in solido rem
reversion or remainder it sufficeth though he never took profit But the matter observable upon this proviso is that if a desseisor make a Lease for lives or yeers the remainder for life in taile or in fee he in remainder cannot take a promise or Covenant that when the disseisee hath entered upon the Land or recovered the same that then he should convey the Land to any of them in remainder thereby to avoid the particular estate or the interest or estate of any other for the words of the proviso be buy obtain get or have by any reasonable way or mean and that is not by promise or Covenant to convey the Land after entry or recovery for that is neither lawfull being against the expresse purview of the body of the act and not reasonable because it is to the prejudice of a third person But the reasonable way or meane intended by the statute is by release or confirmation or such conveyances as amount to as much Sect. 703. Fo. 370. a. A Warranty lineall is 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 In a Jur. utr brought by a Parson of a Church the Collaterall Warranty of his Ancestor is no barre for that he demands the Land in the right of his Church in his politick capacity and the Warranty descendeth on him in his naturall capacity 27 H. 6. garr 48. But some have holden that if a Parson bring an Ass that a Collaterall warranty of his Ancestor shall bind him for that the Ass is brought of his possession and seisin and he shall recover the meane profits to his own use 34 E. 3. garr 71. But seeing he is seised of the freehold whereof the Ass is brought in jure Ecclesiae which is in another right then the warranty it seemeth that it should not be any barre in the Ass The like Law is of a Bishop Archdeacon Dean Master of an Hospital and the like of their sole possessions and of the Prebend Vicar c. King H. 3. gave a Manor to Edmond Earl of Cornwall and to the heires of his body saving the possibility of Reverter and dyed The Earl before the Statute of W. 2. c. 1. de donis Cond by Deed gave the said Manor to another in fee with Warranty in exchange for another Manor and after the said Statute Anno 28 E. 1. dyeth without issue leaving Assets in fee simple which is Warranty and Assets descended upon King E. 1. as Cousin German c. And it was adjudged that the King as heire to the said Earl Edmond was by the said Warranty and Assets barred of the possibility of Reverter which he had expectant upon the said gift albeit the Warranty and Assets descended upon the natural body of King E. 1. as heir to a Subject and E. 1. claimed the said Manor as in his Reverter in jure Coronae in the capacity of his Body Politick in which right he was seised before the gift 45 Ass 6. 6 E. 3. 56. Pl. Com. 234. 553 554. Vide 27 H. 6. garr 40. 34 E. 3. garr 71. In this case how by the death of the said Earl Edmond without issue the Kings Title by Reverter and the Warranty and Assets came together and that the Warranty was collateral yet the King shall not be barred without Assets as a Subject shall be and many other things are to be observed in this case which the learned Reader will observe Vide Sect. 711. 712. Sect. 704 705. Fo. 371. a. Littleton doth agree with the Authority of our Books 46 E. 3. 6. 5 E. 3. 14. 19 H. 8. 12. so as the diversities do stand thus 1. Where the disseisin and feoffment are uno tempore and where at several times 2. Where the disseisin is with intent to alien with Warranty and where the disseisin is made without such intent and the alienation with Warranty afterwards made Sect. 706. ibid. Upon every Conveyance of lands c. as upon Fines Feoffments Gifts c. Releases and Confirmations made to the Tenant of the land a Warranty may be made albeit he that makes the Release or Confirmation hath no right to the land c. But some do hold that by Releases or Confirmations where there is no estate created or transmutation of possession a Warranty cannot be made to the Assignee 14 E. 3. Voucher 108. 16 E. 3. ibid. 87. 18 E. 3. 6. 12 H. 7. 1. Vide S. 733 738 745. Sect. 707. Fol. 371. b. The opinion of Littleton in this case is holden for Law against the opinions in 35 E. 3. garr 73. 11 H. 4. 33. Sect. 708. Fol. 372. a. Hereby it appeareth that a Warranty that is collateral in respect of some persons may afterwards become lineal in respect of others 8 R. 2. garr 101. Whereupon it followeth That a collateral Warranty doth not give a right but bindeth onely a right so long as the same continueth but if the collateral Warranty be determined removed or defeated the right is revived 43 Ass 44. 24 H. 8. tit Tail Br. 7. H. 5. 6. tit Ass 350. 34 E. 3. Droit 29. 19. H. 6. 59. 21. H. 7. 40. 5 H. 7. 29. 3 H. 7. 9. b. And yet in an Assize the Plaintiff hath made his Title by a collateral warranty 16 Ass p. 16. 27 Ass 74. 29 Ass 50. 43 Ass 8. 14 H. 4. 13. 19 H. 6. 66. Barre signifieth legally a destruction for ever or taking away for a time of the action of him that right hath Nota That in some cases an estate Tail may be barred by some Acts of Parliament made since Littleton wrote and in some cases an estate Tail cannot be barred which might when Littleton wrote have been barred For Example if Tenant in Tail levy a Fine with Proclamation according to the Statute this is a barre to the estate Tail but not to him in reversion or remainder if he maketh his claim or pursue his action within five yeers after the estate Tail spent 4 H. 7. c. 24. ct 32 H. 8. c. 36. If a gift be made to the eldest Son and to the heirs of his body the remainder to the Father and to the heires of his body the Father dyeth the eldest Son levieth a Fine with Proclamation and dieth without issue this barreth the second Son for the remainder descended to the eldest Dalisons 2 El. 7 El. lib. 3. f. 84. If Tenant in Tail be disseised or have a right of action and the Tenant of the land levy a Fine with proclamation and five years pass the right of the estate Tail is barred If Tenant in Tail in possession or that hath a right of entry be attainted of High Treason the estate Tail is barred and the land is forfeited to the King and none of these were bars when Littleton
years c. in this case if he be ousted by a stranger without being impleaded the Obligation is forfeit But if he be bound to warrant the land c. the bond is not forfeit unlesse the Obligee is impleaded and then the Obligor must be ready to warrant c. 2 E. 4. 15. tit Det. 71. Qui benè distinguit benè docet fol 384. a. A Warranty in Deed is created onely by this word Warrantizo but Warranties in Law are created by many other words they are therefore called Warranties in Law because in Judgement of Law they amount to a Warranty without this Verb Warrantizo As Dedi is a Warranty in Law to the feoffee and his heirs during the life of the feoffor but Concessi in a Feoffment or Fine implieth no Warranty But before the Statute of Quia Emp. ter if a man had given lands by this word Dedi to have and to hold to him and his heires of the Donor and his heirs by certain Services then not onely the Donor but his heirs also had been bound to warrant But if before the Statute a man had given lands by this word Dedi to a man and his heirs for ever to hold of the chief Lord there the feoffor had not been bound to Warranty but during his life as at this day he is Lestat de Bigamis c. 6. 2 H. 7. 7. 6 H. 7. 2. 48 E. 3. 2. 31 E. 1. vouch 290. F. N.B 134. b. 6 E. 2. vouch 258. Dedi doth import a warranty in Law albeit there be an expresse warranty in the Deed. For if a man make a feoffment by Dedi and in the Deed doth warrant the land against I. S. and his heirs yet Dedi is a generall warranty during the life of the feoffor and so was the Statute expounded in both points H. 14. El. in Com. Banc. And if a man make a lease for life reserving a rent and adde an expresse warranty here the expresse warranty doth not take away the warranty in Law for he hath election to vouch by force of either of them and in Nokes Case note a diversity between a warranty that is a Covenant and a warranty concerning a Chattell l. 4. fo 80. 8 E. 3. 69. 3 E. 3. Formedon 44. Also this word axcambium doth imply a warranty Also a Petition implyeth a warranty in Law and homage Aunc ' doth draw to it selfe warranty 4 E. 2. vouch 245. 22 E. 3. 3. 14 H. 6 2. 20 H. 6. 14. l. 4. 122. l. 1. 96. l. 5. fo 17. l. 8. 75. Seignior Staf. case And note that the warranty wrought by this word dedi is a speciall warranty and extends to the heirs of the Feoffee during the life of the donor only But upon the exchange Homage Aunc ' the warrant extending reciprocally to the heires and against the heires of both parties and in none of these cases the Assignee shall vouch by force of any of these warranties but in the case of the exchange and dedi the Assignee shall rebutt but not in the case of Homage Auncestrel And so no man shall have a writ of contra formam collationis but onely of the feoffee and his heirs which be privy to the Deed but an Assignee may rebutt by force of the Deed. 28 Ass 33. 14 H. 4. 5. 11 E. 3. Avowr 100. 30 H. 6. 7. 33 H. 8. Dy. 51. 10 H. 7. 11 b. F. N. B. 163. a. If a man make a gift in Taile or a Lease for life of land by deed or without deed reserving a rent or of a rent service by deed this is a warranty in Law and the donee or lessee being impleaded shall vouch and recover in value and this warranty extendeth not onely against the donor or lessor and his heires but also against his Assignees of the reversion and so likewise the Assignee of lessee for life shall take benefit of this warranty in Law 6 E. 2. vouch 105. 5 E. 3. 67. 3 H. 7. 13. 6 H. 7. 2. 7 E. 3. 6. F.N.B. 134. g. When dower is assigned there is a warranty in Law included that the Tenant in Dower being impleaded shall vouch and recover in value a third part of two parts whereof she is Dowable 4 E. 3. 36. 43. Ass 32. 50 E. 3. 7. F.N.B. 149. m. A warranty in Law and Assets is in some cases a good barre In a Formedon in the discender the Tenant may plead that the Ancestor of the demandant exchanged the Land with the Tenant for other Lands taken in exchange which descended to the demandant whereunto he hath entred and agreed or if he hath not entered and agreed unto the Lands taken in exchange then the Tenant may plead the warranty in Law and other Assets descended 14 H. 6. 2. 15 E. 3. Bar. 255. If Tenant in Taile of Lands make a gift in Taile or a Lease for life render a rent and dyeth and the issue bring a Formedon in the discending the Reversion and rent shall not barre the demandant because by his Formedon he is to defeat the reversion and rent Et non potest adduci exceptio ejusdem rei cujus petitur dissolutio 38 E. 3. 22. 23. 24. 13 E. 3. gar 35. But if other Assets in fee simple doe discend then this waâ—ranty in Law and Assets is a good barre in the Formedon 16 E. 3. Age 45. 31 E. 3. gar 29. Here four things are to be observed 1. That no warranty in Law doth barre any collaterall title but is in nature of a lineall warranty wherein note the equity of the Law Fo. 384. b. 2. That an expresse warranty shall never binde the heirs of him that made the warranty unlesse they be named but in case of warranty in Law in many cases the heires shall be bound to warranty albeit they be not named 3. That in some cases warranties in Law do extend to execution in value of speciall Lands and not generally of Lands descended in fee simple lib. 4. fol. 121. Bustards Case 4. That warranty in Law may be in some cases created without Deed as upon gifts in Taile Leases for life eschanges and the life 45 E. 3. 20. b. Also it is necessary to shew who shall take advantage of a warranty as Assignee by way of voucher to have recompence in value If a man infeoffee A. and B. to have and to hold to them and their heires and Assignes with a clause of warranty praedictis A. and B. eorum haered Assignatis in this case if A. dyeth and B. surviveth and dyeth and the heire of B. infeoffeth C. he shall vouch as Assignee and yet he is but the Assignee of the heir of one of them for in judgment of Law the Assignee of the heire is the Assignee of the Ancestor and so the Assigne of the Assignee shall vouch in infinitum within these words his Assignes 14 E. 3. gar 33. 13 E. 1. gar 83. lib. 5. fol. 17. b. Spencers case 38 E. 3. 21.
If a man infeoff A. to have and to hold to him his Heires and Assignes A. infeoffeth B. and his heirs B. dyeth the heire of B. shall vouch as Assignee to A. so as heires of Assignees and Assignees of Assignes and Assignes of Heirs are within this word Assignes which seemed to be a Qu. in Bractons time and the Assignee shall not onely vouch but have a Warrantia Cartae 12. E. 2. vouch 263. 19 E. 2. gar 85. 13 E. 1. ib. 93. 36 E. 3. gar 1. 4 H. 8. Dyer 1. F. N. B. 135. If a man doth warrant Land to another without this word Heires his heirs shall not vouch and regularly if he warrant land to a man and his heirs without naming Assignes his Assignee shall not vouch But if the Father be infeoffed with Warranty to him and his heires the Father infeoffeth his eldest Son with Warranty and dyeth the Law giveth to the Son advantage of the Warranty made to his Father because by act in Law the Warranty between the Father and the Son is extinct 43 E. 3. 23. 24 E. 3. 3. 11 H. 4. 94. 5 E. 3. Age 19. Pl. Com. 418. But note a diversity between a Warranty that is a Covenant real which bindeth the party to yield Lands or Tenements in recompence and a Covenant annexed to the Land which is to yield but damage for that a Covenant in many cases extendeth further then the Warranty As for Example It hath been adjudged that where two Coparceners made partition of Land and the one made a Covenant with the other to acquit her and her heirs of a Suit that issued out of the Land the Covenantee aliened in that case the Assignee shall have an action of Covenant and yet he was a stranger to the Covenant because the acquitall did run with the land 42 E. 3. b. per Finchden fol. 385. a. A. seised of the Manor of D. whereof a Chappel was parcel a Prior with the assent of his Covent Covenants by Deed indented with A. and his heirs to celebrate divine Service in his Chappel weekly for the Lord of the Manor and his Servants c. In this case the assignees shall have an action of Covenant albeit they were not named for that remedy by covenant doth run with the Land to give damages to the party grieved and was in manner appurtenant to the Manor 42 E. 3. 3. a. Laurence Pakenhams case 6 H. 4. 1. Ralph Brabsons case But if the Covenant had been made with a stranger to celebrate divine Service in the Chappell of A. and his heirs there the Assignee shall not have an action of Covenant for the Covenant cannot be annexed to the Manor because the Covenantee was not seised of the Manor Vide lib. 5. fol. 17 18. Spencers case 2 H. 4. 6. H. Hornes case And note that an Assignee of part of the Land shal vouch as Assignee As if a man make a feoffment in fee of two acres to one with Warranty to him his Heirs Assignes if he make a feoffment of one acre that feoffee shall vouch as Assignee for there is a diversity between the whole estate in part and part of the estate in the whole or of any part As if a man hath a Warranty to him his Heires and Assignes and he make a lease for life or a gift in Tail the lessee or donee shall not vouch as Assignee because the whole estate is out of the lessor or donor and by this means he shall take advantage of the Warranty But if a lease for life or a gift in Tail be made the remainder over in fee such a lessee or donee shall vouch as Assignee because the whole estate is out of the lessor and the particular estate and the remainder do in Judgment of Law to this purpose make but one estate 18 E. 4. 52. 10 E. 3. 58. 5 E. 3. 40. Accord H. 14. 1. in Com. Banc. If a man infeoff three with Warranty to them and their heirs and one of them release to the other two they shall vouch but if he had released to one of the other the warranty had been extinct for that part for he is an Assignee 40 E. 3. 14. 40 Ass 5. 33 H. 6. 4. 37 H. 8. Alienation c. 31. 8 H. 4. 8. If a man doth warrant land to two men and their heirs and the one make a feoffment in fee yet the other shall vouch for his moity 11 R. 2. Detin 46. 7 E. 3. 35. 46 E. 3 4. If a man at this day be infeoffed with warranty to him his heirs and assignes and he make a gift in Tail the remainder in fee the donee make a feoffment in fee that feoffee shall not vouch as Assignee but * he that cometh in in privity of estate If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or Tenant of the Land may rebutte and albeit no man shall vouch or have a Warrantia Cartae either as party heir or Assignee but in privity of estate yet any that is of another estate be it by Disseisin Abatement Intrusion Usurpation or otherwise shall rebut by force of the warranty as a thing annexed to the Land which sometimes was doubted in our Books 38 E. 3. 21. 26 E. 3. 56. l. 10. fo 96. b. Seymors Case 10 Ass 5. 35 Ass 9. 22 Ass 3. 988. 31 Ass 13. But herein note a diversity when he that rebutteth claimeth under the warranty and when he claimeth above the warranty for there he shall not rebut And therefore if Lands be given to two Brethren in fee simple with a warranty to the eldest and his heirs the eldest dyeth without issue the survivor albeit he be heir to him yet shall he neither vouch nor rebut nor have a Warrantia Cartae because his Title to the Land is by relation above the fall of the warranty and he cometh not under the estate of him to whom the warranty is made as the disseisor c. doth If a man make a gift in Tail at this day and warrant the land to him his heirs and assignes and after the donee make a feoffment and dyeth without issue the warranty is expired as to any Voucher or Rebutter for that the estate Taile whereunto it was knit is spent Otherwise it is if the gift and feoffment had been made before the Statute of Donis Cond for then both the donee and feoffee had a fee simple and so are our Books to be intended in this and the like cases Lib. 3. fo 63. Linc. Coll. case If A. be seised of Lands in fee and B. release unto him or confirmeth his estate in fee with warranty to him his heires and assignes All men agree this warranty to be good but some have holden That no warranty can be raised upon a bare Release or Confirmation without passing some estate or transmutation of possession 14 E. 3. garr 108. 12 H. 7. 1. But the Law as it appeareth
by Littleton himselfe is to the contrary and that both the party and as some doe hold his Assignee shall vouch but he that is vouched in that case must be present in Court and ready to enter into the warranty and to answer and the Tenant must shew forth the Deed of Release or Confirmation with warranty to the intent the Demandant may have an answer thereunto and either deny the Deed or avoid it for that at the time of the Confirmation made he to whom it was made had nothing in the land c. for otherwise the Demandant may counter-plead the Voucher by the Statute of W. 1 cap. 40. viz. that neither Vouchee nor any of his Ancestors had any seisin whereof he might make a feoffment And this is grounded upon the said Statute of W. 1. Sil neit son gar en present que lun voile gar de son gree maintenant enter en respons otherwise the Tenant must be driven to Warrantia Cartae 11 H. 4. 22. 10 E. 3. 52. 21 E. 3. 37. Vide Sect. 706. 738. 745. Vide 20 E. 1. Stat. ad vocat ad Warr. But a warranty of it selfe cannot enlarge an estate as if the lessor by Deed release to his lessee for life and warrant the land to the lessee and his heirs yet doth not this enlarge the estate 22 Hen. 6. 15. 2 Hen. 4. 13. 43 Ed. 3. 17. 43 Ass 42. 12 Ass 17. 12 Ed. 3. Tail 3. 22 Ed. 4. 16. b. 44 Ed. 3. 10. 44 Ass Bassingborns Ass If a man make a feoffment in fee with Warranty to him his heirs and assigns by Deed as it must be and the feoffee infeoff another by paroll the second feoffee shall vouch or have a Warrantia Cartae as Assignee albeit he hath no Deed of the Assignment l. 3. 63. If a man infeoff two their heirs and assigns and one of them make a feoffment in fee that feoffee shall not vouch as Assignee 29 Edw. 3. 70. 17 Edw. 2. Joynd in action 1. 11 Edw. 4. 8. If a man make a feoffment in fee to A. his heirs and assigns A. infeoffeth B. in fee who re-infeoffâ—th A. He or his assigns shall never vouch for A. cannot be his own Assignee But if B. had infeoffed the heir of A. he may vouch as Assignee for the heir of A. may be Assignee to A. in as much as he claimeth not as heir Sect. 734. fol. 386. a. The Heir shall never be bound by any expresse warranty but where the Ancestor was bound by the same warranty 31 Ed. 1. gar 83. Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita regis tantum A fortiori in case of Warranty which is in the realty Fleta lib. 2. cap. 55. Brit. fol. 65. b. 11 Hen. 6. 48. But a Warranty in Law may binde the Heir although it never bound the Ancestor and may be created by a last Will and Testament As if a man devise lands to A. for life or in Tail reserving a rent the devisee for life or in Tail shall take advantage of this warranty in Law albeit the Ancestor was not bound and shall binde his heirs also to Warranty although they be not named Also an expresse Warranty cannot be created without Deed and a Will in writing is no Deed and therefore an expresse Warranty cannot be created by Will 18 Ed. 3. 8. Sect. 736. fol. 386. b. Note a diversity the lien reall as the Warranty doth ever descend to the heir at the Common Law but the lien personall doth binde the speciall heirs as all the heirs in Gavelkinde and the heir on the part of the Mother vide Sect. 603 718 737. 11 E. 3. 7. 11 Hen. 7. 12. If two men make a feoffment in fee with warranty and the one dyeth the feoffee cannot vouch the survivor onely but the heir of him that is dead also but otherwise if two joyntly binde themselves in an Obligation and the one die the survivor only shall be charged 17 E. 3. Joynt 41. 16 H. 7. 13. 29 E. 3. 46. 12 H. 7. 3. 22 E. 3. 1. 17 E. 3. 8. 30 E. 3. 43. 19 H. 6. 55. l. 3. f. 14. Mat. Herberts Case Two brothers by demy venters the eldest releaseth with warranty to the disseisor of the Uncle and dyeth without issue the Uncle dyeth the warranty is removed and the younger brother may enter into the Land Sect. 737. Sect. 738. fol. 387. A warranty may be limited and a man may warrant lands as well for term of life or in Tail as in fee 38 Ed. 3. 14. 16 E. 3. Vouch. 87. If Tenant in fee simple that hath a warranty for life either by an expresse Warranty or by Dedi be impleaded and vouch he shall recover a fee simple in value albeit his warranty were but for term for life because the warranty extended in that case to the whole estate of the feoffee in fee simple but in the case that Littleton here putteth the Tenant for life shall recover in value but an estate for life because the warranty doth extend to that estate onely vide Sect. 733. 706. And here in this Section is implyed that a collaterall Warranty giveth no right but shall barre onely for life and after the party is restored to his action Also note that a Warranty may descend to the heirs of him that made it during the life of another Sect. 739. Si un home lessa ses terres a un aut aver tenant a luy a ses heires pur terme dauter vie le lessee mor. vivant oâ—luy a que vie c. un estranger enter en la terre l'heire le lessee luy poit ouster c. The heir of the lessee shall have the Land to prevent an occupant and so it is in case of an annuity or of any other thing that lieth in grant whereof there can be no occupant 77 E. 3. 48. 18 E. 3. 12. 11 H. 4. 42. 7 H. 4. 46. 8 H. 4 15. Dyer 8 Eliz. 253. 18 H. 8. 3. 27 H. 8. 21 H. 8. Estat Br. 10. 19 E. 3. Account 56. 33 Ass p. 17. 22 H. 6. 33. 39 E. 3. 37. vide Sect. 387. Sect. 740. Chattels as well reall as personall shall goe to the Executor or Administrator 11 E. 3. tit Ass 88. 11. Ass 21. 10 Eliz. Dyer 276. But if the Kings Tenant by Knights service in Capite be seised of a Manour whereunto an Advowson is appendant and the Church become void the Tenant dyeth and his heir within age the King shall present to the Church and not the Executor or Administrator but if the Land be holden of a common person in that case the Executor shall present and not the Guardian 24 E. 3. 26. F.N.B. 33. b. 34. a. If a Bishop hath a Ward fallen and dyeth the King shall not have the Ward nor
the Successor but the Executor and the Ward shall be Assets in his hands So it is of Heriots Relief c. 40 E. 3. 14. But if a Church become void in the life of a Bishop and so remain untill after his decease the King shall present thereunto and not the Executor or Administrator for nothing can be taken for a prefentment and therefore it is no Assets 9 H. 6. 58. 11 H. 4. 7. Sect. 741. fol. 388. a. Here the collaterall warranty doth descend upon the issue in tail before any right doth descend unto him wherein this diversity is to be observed vide Sect. 707. where the right is in esse in any of the Ancestors of the heir at the time of the discent of the collaterall warranty there albeit the warranty descend first and after the right doth descend the collaterall warranty shall bind as appeareth in this case of our Author But where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warranty there it shall not bind As if Lord and Tenant be and the Tenant make a feoffment in fee with warranty and after the feoffee purchase Seigniory and after the Tenant cesse the Lord shall have a Cessavit for a warranty doth extend to rights precedent and never to any right that commenceth after the warranty 7 E. 3. 48. 30 Hen. 8. 42. Also a warranty shall never barre any estate that is in possession reversion or remainder that is not devested displaced or turned to a right before or at the time of the fall of the warranty If a Lease for life be made to the Father the remainder to his next heir the Father is disseised and released with warranty and dyeth this shall barre the heir although the warranty doth fall and the remainder cometh in esse at one time lib. 1. fol. 67. Archers Case If there be Father and Sonne and the Sonne hath a rent service suit to a Mill rent charge rent seck common of pasture or other profit appreâ—eâ—â—â—â— out of the Land of the Father and the Father maketh a feoffment in fee with warranty and dyeth this shall not barre the Sonne of the rent common c. quia in tali casu transit terra cum onere and he that is in seisin or possession need not to make any entry or claim and albeit the Sonne after the feoffment with warranty and before the death of the Father had been disseised and so being out of possession the warranty descended upon him that it should not binde him because at the time of Warranty made the Son was in possession Temps E. 1. vouch 296. 31 Ass 13. 22 Ass 36. 41 Ass 6. 33 E. 3. 3. gar 24. .. 10. f. 97. E. Seymors Case So if my collateral Ancestor releaseth to my Tenant for life this shall not binde my reversion or remainder because the reversion c. continued in mee 45 E. 3. 31. 21 H. 7. 11. But if he that hath a Rent Common or any profit out of the land in Tail disseise the Tenant of the land and maketh a feoffment to the land and warranteth the land to the feoffee and his heirs regularly the Warranty doth extend to all things issuing out of the land i.e. to warrant the land in such plight and manner as it was at in the hand of the feoffor at the time of the feoffment with Warranty and the feoffee shall vouch as of lands discharged of the rent c. at the time of the feoffment made Vide S. 698. 21 E. 4. 26. 28 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 30 H. 8. Dyer 42. 30 E. 3. 30. 9 E. 3. 28. 45 E. 3. vouch 72. F.N.B. 145. 14 H. 8. 6. A woman that hath a rent charge in fee intermarries with the Tenant of the land an estranger releasâ—th to the Tenant of the land with Warranty he shall not take advantage of this Warranty either by Voucher or Warrantia Cartae for the wife if the husband die or the heire of the wife living the husband cannot have an action for the rent upon a Title before the Warranty made for if the heir of the wife bring an Assize of Mordanc this action is grounded after the Warranty whereunto the Warranty shall not extend So it is if the grantee of the rent grant it to the Tenant of the land upon condition which maketh a feoffment of the land with Warranty this Warranty cannot extend to the rent albeit the feoffment was made of the land discharged of the rent for if the condition be broken and the grantor be intituled to an action this must of necessity be grounded after the Warranty made But in the case aforesaid when the woman grantee of the rent marrieth with the Tenant and the Tenant maketh a feoffment in fee with warranty and dieth in a Cui in vita brought by the wife as by Law shee may the feoffee shall vouch as of lands discharged at the time of the warranty made for that her Title is Paramount So if Tenant in Tail of a rent charge purchase the land and make a feoffment with warranty if the issue bring a Formedon of the rent the Tenant shall vouch causa qua supra 7 H. 4. â—7 But some do hold that a man shall not vouch c. as of land discharged of a rent service 10 E. 4. 2. b. 28 E. 3. 55. 44 E. 3. 29. Also no warranty doth extend unto meer and naked Titles as by force of a condition with clause of Re-entry Exchange Mortmain consent to the Ravisher c. because that for these an action doth lie and if no action can bee brought there can be neither Voucher Writ of Warrantia Cartae nor Rebutter and they continue in such plight and essence as they were by their originall creation and by no act can be displaced or devested out of their originall essence and therefore cannot by any warranty l. 10. fo 97. 41 Ass p. 46. And albeit a woman may have a Writ of Dower c. yet because her title of Dower cannot be devested out of the originall essence a collaterall warranty of the Ancestor of the woman shall not barre her So it is of a feoffment causa matrim praelocuti 34 E. 3. Droit 72. 21 E. 4. 82. A warranty doth not extend to any lease for years or to any estates of Tenants by Statute Staple Merchant or Elegit or any other Chattell but onely to Freehold or Inheritance And this is the reason that in all actions which lessee for years may have a warranty cannot be pleaded in barre as in an action of Trespasse or upon the Statute of 5 R. 2 c. 21 E. 4. 18. 82. 1 H. 7. 12. 22. 11 H. 7. 15 16. 20 H. 7. 2. b. 14 H. 7. 22. 43 E. 3. 15. per Finchden in Qu. imp 15 H. 7. 9. But in such actions which none but a Tenant of the Freehold can have as
upon the Statute of H. 6. Ass c. there a warranty may be pleaded in barre Although a collaterall warranty be descended yet if the estate whereunto the warranty was annexed be defeated albeit it be by a meer stranger as in this case that Littleton here put by the discontinuee the warranty is defeated and although the discontinuance remain and no Remitter wrought to the heir yet the warranty is defeated and barre removed so as the issue in Tall may have his Formedon and recover the land Sublato Principali tollitur Adjunctum 3 H. 7. 9. b. 16 E. 3. Continual Claim 10. 9 H. 4. 8. Pl. Com. 158. Sect. 743. Fol. 390. a. Si tenant in tail fait un feoffment a son uncle pui◠l' uncle fait un feoffment in fee ovesque gar c. a un auter c. When the uncle taketh back as large an estate as he had made the warranty is defeated because he cannot warrant land to himself And so it is if the uncle had made the warranty to the feoffee his heirs and assigns and taken back an estate in fee and after infeoffed another yet the warranty is defeated for that he cannot be assignee to himself 40 E. 3. 14. 16 E. 3. Vouch. 87. 19 E. 3. Vouch. 122. 17 E. 3. 73 74. 20 H. 6. 29. A man shall not regularly vouch himself as assignee of a fee simple And yet if the Father be infeoffed with warranty to him and his heirs the Father infeoffeth his heir apparent in fee and die he shall vouch himself and be heir in Borough English by reason the act in Law determined the warranty between the Father and the Son 41 E. 3. 25. a. But if a man make a feoffment in fee with warranty to the feoffee his heirs and assignes and the feoffee reinfeoffe the feoffor and his wife or the feoffor and any other stranger the warranty remaineth still 11 H. 4. 20 42. 17 E. 3. 47 49. 18 E. 3. 56. 29 E. 3. 46. 39 E. 3. 9. Sect. 744. ib. A man infeoffeth a woman with warranty they intermarry and are impleaded upon the default of the husband the wife is received she shall vouch her husband c. notwithstanding the warranty was put in suspence 6 E. 2. Vouch. 257. 3 E. 3. ib. 201. 5 E. 3. 16. 178. And so on the other side if a woman infeoffe a man with warranty and they intermarry and are impleaded the husband shall vouch himself and his wife by force of the said warranty 4 E. 2. Vouch. 245 246. An Infant en ventre sa mere may be vouched if God give him a birth and if not such a one heir to the warranty but he cannot be vouched alone without the heir at the Common Law for Processe shall be presently awarded against him Temps E. 1. gard 1. 3. 31 E. 1. Breve 873. 8 E. 2. Vouch. 237. 11 E. 3. ib. 13. 9 H. 6. 24. Pl. Com. Stowels Case per Saunders and Brown Tenant in Tail maketh a feoffment in fee with warranty and disseise the discontinuee and dieth seised leaving Assets to the issue some hold that in respect of this suspending warranty and Assets the issue in Tail shall not be remitted but that the discontinuee shall recover against the issue in Tail and he take advantage of his warranty if any he hath and after in a Formedon brought by the issue the discontinuee shall barre him in respect of the warranty and Assets and so every mans Right saved 21 E. 3. 36. a. b. 38 E. 3. 21. 44 E. 3. 26. 45 E. 3. Title 32. 44 E. 3. ib. 31. 33 E. 3. ib. 4. Sect. 745. Note a diversity In the case of an Appeal the Defendant shall forfeit no lands but such as he had at the time of the outlawry pronounced for that there is no time alledged in the Writ when the Felony was done But in case of Indictment such as he had at the time of the Felony committed for there is a certain time alledged And in the case of the Indictment there is also a diversity to be observed for it shall relate to the time alledged in the Indictment for avoiding of Estates Charges and Incumbrances made by the Felon after the Felony committed but for the mean Profits of the land it shall relate onely to the Judgement as well in this case of Outlawry as in other cases 33 E. 3. Forfeit 30. 38 E. 2. 31. 3 E. 4. 25. 19 E. 4. 2. Pl. Com. 488. b. Felony Ex vi termini significat quodlibet capitale crimen felleo animo perpetratum Glan If a Felon be convicted by Verdict Confession or Recreancy he doth forfeit his goods and chattels c. presently A man is said convict before he hath judgement For Felony by Chance-medley or se defendendo or petit larceny a man shall forfeit his goods and chattels and no lands of any estate of Freehold or Inheritance Stanf. prerog 45. b. 16 E. 3. Cor. 116. By the Law at this day under the word Felony in Commissions c. is included Petit Treason Murther Homicide Burning of houses Burglary Robbery Rape c. Chance-medley se defendendo and Petit larceny Sect. 746 747. It is a generall rule That having respect to all those whose blood was corrupted at the time of the Attainder the Pardon doth not remove the corrupting of blood neither upward nor downward Bract. l. 3. fo 132. c. Brit. fo 215 b. As if there be Grandfather and Son and the Grandfather and Father have divers other Sons if the Father be attainted of Felony and pardoned yet doth the blood remain corrupted not onely above him and about him but also to all his children born at the time of this Attainder But in the case of Littleton if Tenant in Tail at the time of his Attainder had no issue and after his pardon had issue that issue should have been bound by the warranty And if his Father had issue before the pardon and had issue also after and dieth nothing can descend to the youngest for that the eldest is living and disabled But if the eldest son had died in the life of the Father without issue then the youngest should inherit Nota That a judgement against a man for felony is that he be hanged by the neck untill he be dead but implicativè he is punished 1. In his wife That he shall lose her dower 2. In his children they shall become base and ignoble 3. He shall lose his posterity for his blood is stained and corrupted that they cannot inherit unto him or any other Auncestrel 4. He shall forfeit all his lands and tenements which he hath in fee and which he hath in tail for term of his life And 5. all his goods and chattels The wife of a man attainted of high Treason or pety Treason shall not be received to demand Dower unlesse it be in certain cases specially provided for Stan. Pl. Cor. 195. But the wife of a
person attainted of misprision of Treason Murther or Felony is dowable since our Author wrote by the Statute of 1 E. 6. cap. 13. 5 E. 6. cap. 11. 5 El. ca. 1. 11. 18 El. cap. 1. 12 H. 4. 3. Vide Sect. 55. So if a Seigniory be granted with warranty and the Tenancy escheat the Seigniory whereunto the warranty was annexed is extinct and consequently the warranty defeated and it shall not extend to the land sic in similibus 6 H. 4. 8. 45 E. 3. vouch 72. Pl. Com. 292. 16 E. 3. Age 46. 28 H. 3. vouch 281. 23 E. 3. garr 77. Vide Sect. 200. If a collaterall Auncestrel release with warranty and enter into Religion now the warranty doth binde but if after hee be deraigned now it is defeated Sect. 748. Fol. 393. Per release de touts manners de garr ou de touts covenants reall ou de touts demandes le garr est extinct Et mults auters cases matters y sont per queux home poit defeate garr c. As by a defeasance as other things executory may Also a warranty may lose his force by taking benefit of the same 43 E. 3. 17. Pl. Com. Brownings case In a Precipe the tenant voucheth and at the sequatur sub suo periculo the tenant and the vouchee make default whereupon the demandant hath judgement against the tenant and afterwards the demandant brings a Scire facias against the tenant to have execution In this case the Tenant may have a War Cartae And if in that case a stranger had brought a praecipe against the Tenant hee might have vouched again for by the judgement given against the Tenant the warranty lost not his force but if the Tenant had judgement to recover in value against the vouchee he should never vouch again by reason of that warranty because he had taken advantage of the warranty and it is to be observed that upon the processe of Summon ad warr if the Sheriffe return the vouchee summoned and he make default the Tenant shall have a Capias ad val but if he return that the vouchee had nothing then after the Sicut alias plures a seq sub suo periculo shall issue and there if the vouchee make default the Tenant shall not have judgement to recover in value for he was never summoned and it appeareth of Record that he hath nothing but in the Cap. ad Val. it appeareth that he had Assets and he had been summoned before But in some speciall cases there shall be two recoveries in value upon one warranty As if a disseisor give lands to the husband and wife and to the heirs of the husband the husband alieneth in fee with warranty and dieth the wife bringeth a Cui in vita the Tenant vouch and recover in value if after the death of the wife the disseisee bring a praecipe against the Alienee he shall vouch and recover in value again So it is where the wife bringing a Writ of Dower against the Alienee he shall recover in value and after her death hee shall recover in value again upon the same warranty 45 E. 3. vouch 72. In the same manner it is if a man be seised of a rent by a defeasible title and release to the Tenant of the Land all his right in the Land and warrant the Land to him and his heirs if he be impleaded for the rent he shall vouch and recover in value for the rent and if after he be impleaded for the Land he shall vouch c. again for the Land But in these and the like cases the reason is in respect of the severall Estates recovered but for one and the same estate he shall never recover but once in value and though the Land recovered in value be evicted yet he shall never take benefit of that warranty after and as warranty may be defeated in the whole so they may be defeated as to the party of the benefit that may be taken of the same As he that maketh a warranty may make a defeasance not to take any benefit by way of voucher In the like manner that he shall take no advantage by way of Warrantia Cartae or by way of Rebutter 7 H. 6. 43. 13 Ass 8. 13 E. 3. gar 24 25. 3. 7. 22 H. 6. 51. 8 H. 7. 6. Sect. 749. If Tenant in Tail alien with warranty and leave Assets to discend if the issue in Tail doth alien the Assets and die the issue of that issue shall recover the Land because the lineall warranty descends onely to him without Assets for neither the pleading of the warranty without Assets nor Assets without warranty is any barre in the Formedon in the descender But if the issue to whom the warranty and Assets descended had brought a Formedon and by judgement had been barred by reason of the warranty and Assets In that case albeit he alieneth the Assets yet the estate Tail is barred for ever for a barre in a Formedon in the descender which is a Writ of the highest nature that an issue in Tail can have is a good barre in any other Formedon in the descender brought afterwards upon the same gift Temps E. 1. gar 89. 34 E. 1. ib. 88. 11 E. 2. ib. 3. 4 E. 3. 24. 5 E. 3. 14. 40 E. 3. 9. 14 H. 4. 39. 24 H. 8. a. Br. 33. 4. M. Dy. 139. l. 10 37 38. Mary Portingtons case Epilogus Nulla virtus nulla scientia locum suum dignitatem conservare potest sine modestia Ratio est anima legis If by study and industry we make not the reason of the Law our own it is not possible for us to retain it in our memories And we must couple arguments and reasons together Quia Argumenta ignota obscura ad lucem rationis proferiaâ—â— reddunt splendida Sir Richard Hankford 11 H. 4. 37. Home ne scavera de quel mettal un campane est sine soit bien bate ne le ley bien conus sans disputation Jeo aye disputir cest matter pur la apprender la ley 41 E. 3. 22. Kirton Vide Sect. 377. Lex plus laudatur quando ratione probatur Lex est sanctio sancta jubens honesta prohibens contraria Vide cest definitio Lib. 1. fo 131. Chudleighs Case Al unique Dieu gloire FINIS An Alphabetical Table A ALien may purchase what and how p. 2 Attainder how it corrupteth the blood 7 Arguments legal 11 Arguments from Statutes ib. Advocatio what 15 123 Advocatio medietatis ib. Armories how descendable 20 Authority with interest or without the difference 63 Attorney to deliver seisin ib. Accessaries where 67 Ages their several purposes in the Law 95 Agreement and Disagreement the time for the confirming Matrimony the equal Obligation 96 Agriculture its commendation 98 Actus Legis 100 Aetas Legitima 101 Alienatio restricta 106 Acquittal quotuplex 107 Appendant and Appurtenant their differences 125 126 Alienee plead where
the Outlawry then may the Outlawry be plead in Bar of the action as in an action of debt detinue c. But in reall actions or in personall where damages be incertain as in trns. of Battery of goods of breaking his cloâ—e c. and are not forfeited by the outlawry their outlawry must be pleaded in disability of the person 9 Eliz. Dyer 262. 7 H. 4. 4. b. l. 5. 109. Foxleyes C. In the reign of King Alfred and after the Conquest no man could have been outlawed but for Felony the punishment whereof was death Mir. c. 1. S. 3. Vtlagatus waiviata capita gerunt Lupina quae ab omnibus impunè poterunt amputari merito enim sine lege perire debent qui secundum legem vivere recusant Fleta lib. 1. cap. 27. But now the Law is changed for avoyding of inhumanity c. Vide 2 Ass Pl. 3. 2 E. 3. tit Coron 148. In Bractons time and somewhat before process of outlawry was ordained to ly in all actions that were qu. vi armis which Bracton calleth delicta for there the King shall have a fine But since by divers Statutes Process of outlawry doth ly in Account Debt Deâ—inue Annuity Covenant Action sur le Case Action sur le Statute De 5 R. 2. and in divers other common or civill actions Bract. lib. 5. fo 421. 8 H. 6. 9. b. 40 E. 3. 5 c. 35 H. 6. 6. 40 E. 3. 2. Sect. 198. If an alien had issue in English before his denization that issue is not inheritable to his Father but if his Father be naturaliz'd by Parliament such issue shall inherit Ligeantia est vinculum fidei ligeantia eÌ„ legis essentia Et est duplex 1 Perpetua ista ligeantia est aut nata aut data 2 Temporanea quae eÌ„ aut localis aut limitata sc denizatio pro vita c. Vide libr fo 129. a. A man may be born out of the realm of England yet within the legeance as in Ireland c. An alien that is in league shall maintain personall action for an alien may trade c. but not reall or mixt actions An alien that is condemned in an information shall have a Writ of error to relieve himself sic c. If an alien be made a Prior or Abbot the Plea of Alien nee shall not disable him to bring any reall or mixt action concerning his house because he is in auter droit 29 E. 3. Br. Denizen 15. Sic vide diversitat In Littletons Case the tenant or defendant shall neither plead alien nee to the Writ or to the action but in disability of the person as in villenage or outlawry and Littleton is to be intended of an Alien in league for if he be an Alien enemy the defendant may conclude to the action Liure de entries Alien 1. Sect. 199. The judgment in a Praemunire is that the defendant shall be from thenceforth out of the Kings protection his lands and tenements goods and chattels forfeited to the King and that his body shall remain in prison at the Kings pleasure And a man might doe to him as to the Kings enemy and a man may lawfully kill an enemy 24 H. 8. Brook Coron 196. But by the Statute 5 Eliz. ca. 1. It is not lawful for any person tn slay any person attaint in praemunire c. Tenant in taile attaint in a praemunire shall forfeit the Land but during his life Vide lestat 16 R. 2. c. 5. There be three things whereby every subject is protect viz. Rex lex rescripta regis The law is the rule but it is mute The King judgeth by his Judges and they are lex loquens The process and the execution which is the life of the Law consisteth in the Kings Writs Rex tuetur legem lex tuetur jus A man attainted of Treason or Felony is disabled to bring any action for he is extra legem positus and accounted in Law civiliter motuus 4 E. 4. 8. There is a generall protection of the King and this extends to all the Kings loyall subjects c. and there is a particular protect by Writ c. And this is of two sorts one to give a man immunity from actions or sutes The second for the safety of his person servants and goods lands c. from unlawfull molestation or wrong The first is of right and by law the second are all of grace saving one for the generall Protection implieth as much Of the first sort some are cum clausula volumus and of these protections There be four kinds viz. 1 Quia profecturus 2 Quia moraturus 3 Quia indebitatus nobis existit of the matter 4 When any sent into the Kings service in war is imprisoned beyond Sea The former two are for staying of suits and actions in generall and for these nine things are to be observed 1 The cause of granting the protect must be expressed c. and it is of two natures the one concerns service of war as the Kings Souldier c. The other wisdome and counsell as the Kings Ambassador pro negotiis regni both these being for the publique good of the Realme private mens actions and suits must be suspended for a convenient time for jura publica anteferenda privatis jura publica ex privatis promiscue decidi non debent A man in execution in salva custodìa shall not be delivered by a protection 5 Mar. 162 Dyer 2 These protections are not allowable onely for men of full age but for men within age and for women as necessary attendants upon the Camp and that in three Cases quia lotrix seu nutrix seu obstetrix 19 H. 6. 51. Vide libr. qu. fo 130. a F. N.B. 28. l. Corpor. aggreg of many are not capable of protect profecturae or moraturae for the Corpor. it is invisible In every action or plea reall or mixt against two c. a protection cast for the one doth put the plea without day for all as in debt c. 9 E. 3. Prot. 80 81. 3 A protect profecturae must not be purchased pendente plito unless it be in a voyage royall But otherwise it is of a protect Moraturae 3 H. 6. prot 2. A protection cannot be cast but when the party hath a day in Court and when if he made default it should save his default c. 4. 6 H. 22. If a man hath a protection and notwithstanding plead a plea yet at another day of continuance after that a protection may be cast so at a day after an exigent but after appearance he cannot cast a protection in that terme untill a new continuance be taken * 22. F. 3. 4. And no protect either Profect or Morat shall endure longer than a year and a day next after the reste or date of it 39. H. 6. 39. * 4. The protection must be to some certaine place out of the Realm of England Lib.
joyntenant or copercener shall distreine for his or her moity 27. E. 3. 88. Concerning the apportionment of rents there is a difference between a grant of a rent and a reservation of rent 22 H. 4. 17. A man against his own grant shall not take advantage of the weakness of his own estate in part vide lib c. Fo. 148. 6. And note a diversity between a rent in grosse and a rent incident to a reversion If a man grant a rent charge out of two acres and after the grantee recovereth one of the acres against the grantor by a Title Paramount the whole rent shall issue out of the other acre But if the Recovery be by a feint Title by Covine then the rent is extinct in the whole because he claimeth under the grantor Doct. Stud. l. 2 c. 17. And yet in some cases a rent charge shall not be wholly extinct where the grantee claimeth from and under the grantor As if B. make a lease of one acre for life to A. and A. is seised of another acre in fee A granteth a rent-charge to B. out of both acres and doth waste in the acre which he holdeth for life B. recovers in waste the whole rent is not extinct but shall be apportioned c. for that Nullus Commodum capere potest de injuria sua propria If the King give two acres of land of equall value to * another in fee fee tail for life or for years reserving a rent of Two shillings and the one acre is evicted by a Title Paramount the rent shall be proportioned F. N. B. 234. b. If an entire service be pro bono publico as Knights service Castlegard c. though the Lord purchase part the service remains but when entire services are for the private benefit of the Lord it is otherwise lib. 6. fo 1 2. Bruertons Case Sed vide lib. c. fo 149. a. Sect. 223. and 224. Reg. it holdeth That quae in partes dividi nequeunt solida à singulis praestantur Vide los reports Bruertons Case lib. 6. Talbots Case l. 8. f. 104. It there be Lord and Tenant by Fealty and Herriot service and the Lord purchase part of the land the Herriot service is extinct and yet it is not annual because it is entire and valuable But otherwise it is of Herriot Custome fo 149. b. If the tenant giveth to the father of the grantee of a rent charge part of the rent in tail and this descend to the grantee the rent charge shalll be apportioned and so by act in law a rent charge may be suspended for one part and in esse for another 30. Ass p. 12 fol. 149. b. And so it is if the father be grantee of a rent and the son purchase part of the land charged the father dyeth and the rent descends to the son the rent shall be apportioned and so it is if the grantee grant the rent to the tenant of the land and to a stranger the rent is extinct but for a moity 34. H. 6. 41. b. If a man hath Issue two daughters and grant a rent Charge to one of them out of his land and dyeth the rent shall be apportioned and if the grantee in this case infeoffeth another of her part of the land yet the moity of the rent temaineth issuing out of her Sisters part because the part of the grantee in the land by the descent was discharged of the rent But in all these Cases where the rent charge is apportioned by act in law yet the Writ or Annuity faileth for if the grantee should bring a Writ of Annuity he must ground it upon the grant by Deed and then must he bring it for the whole 9 Ass 22. 5. R. 2. Annuity 21. Annua nec debitum judex non separat ipsum Also in respect of the reality the rent is apportioned but the personality is indivisible c. If Execution be sued c. upon a Statute Merchant or Staple and after the inheritance of part of those lands descend to the Conusee all the Execution is avoyded for the duty is Personall and cannot be divided by act in Law Pl. Com. 72. 15. E. 4 5. If the father within age purchase part of the land charged and alieneth within age and dyeth the Son recovereth in a Writ Dum fuit infra aetat or entreth in this case the act of the Law is mixt with the act of the party and yet the rent shall be apportioned for after the recovery or entry the Son hath the land by descent fo 150. vide c. A relation or fiction of Law shall never work a wrong or charge to a third person but in fictione juris semper est aequitas lib. 3. fo 29. Butler and Bakers Case â—s if the Feoffee grant a rent charge al feoffer son seme al heires del Baron ' feme recover Dower le rent charge ferra apportion ' el distreinam c. Sect. 225. If there be Lord and Tenant by Fealty and Rent and the Lord by his Deed reciting the Tenure release all his Right in the Land saving the said rent the seigniory remains and he shall have the rent as a rent service and the fealty incident to it c. 12 E. 4. 11. 9 E. 3. 1. If the Donee hold of the Donor by fealty and certain rent and the Donor grant the services to another and the tenant attorn the rent shall passe as rent seck fol. 150. b. If there be Lord and Tenant by fealty and certain rent and the Lord grant the rent in tail or for life saving the fealty and further grant That the grantee may distrain for it albeit the reversion of the rent be a rent service yet the Donee or Grantee shall have it but as a rent seck and shall not distrain for it 7 E. 3. 2 3. adjudg Whereas in an Assize for a rent service all the tenants of the land need not be named but such as did the disseisin yet in Assize for the rent seck which sometimes was a rent service all the tenants must be named as in case of a rent charge albeit he was disseised but by one sole tenant 4 E. 2. Ass 449. 26 H. 8. Dyer 31. But if the Lord of a Manor release the Fealty to his Tenant saving the rent or that a Mesnalty become a rent by Surplusage those that are now seck and sometimes were service are part of the Manor but a rent charge cannot be part of a Manor 31 Ass 23. 22 Ass 53. Sect. 226 c. If there be Lord and Tenant by Fealty and Rent the annual rent which is a profitable service is of higher and more respect in Law than the fealty and therefore by the grant of the rent the Fealty shall pass as incident c. but it is an incident separable and therefore may be by a saving as Littleton hath said separated by it And so when the Tenure is by Fealty
of any debt due to the Testator he may make an Acquittance but in thaâ— case a Release without payment is voyd and generally what soever an Infant is bound to doe by Law the same shall binde him albeit he doth it without sute of Law 2 M. Dyer 104. An action of account doth lie against a Bayliff that hath administration and charge of lands goods c. for the profits which he hath raised or made or might by his industry or care have reasonably raised or made his reasonable charges and expences deducted Brit. fol. 62. 70. 41 E. 3. 39. An Account against a Receiver is when one receiveth money to the use of another to render an account but upon his account he shall not be allowed his expences and charges Except in some cases As if two joynt Merchants occupy their Stock c. in common one of them naming himself a Merchant shall have an account against the other naming him a Merchant and shall charge him as Recep ot denariorum ipsius B. ex quacunque causa contractu ad comm unem utilitatem ipsorum A. B. provenient sicut per legem mercatoriam rationabiliter monstrare potuit 43 E. 3. 31. 30 E. 1. Account 127. 10 H. 7. 16. lib. Intrat 17 18 19. F.N.B. 118. So as there be but three kindes of Writs of Account viz. 1. Against one as Guardian 2. Against one as Bayliff And 3. as Receiver F. N. B. 219. d. And to maintain an action of account there must be either a privity in deed by the consent of the party 2 Mar B. Account 89. F. N. B. 117. Pl. Com. 542. 2 H. 4. 12. 4 H. 7. 6 c. or a privity in law ex provisione legis as against a Guardian c. Minor surare no potest Bract. l. 5. f. 340. b. For an infant cannot make his Law of Non-Summons 13 E. 3. Ley 50. and therfore the default shall not prejudice him 2. Mar. Dyer 104. 105. But an infant of the age of 12 yeares shall take the oath of allegiance Vide Sect. 85. 91. An infant cannot upon his oath make his Law in an actioâ— of debt 1. H 7. 25. 15. E. 4. 2. and the husband and wife of full age for the debt of the wife before the converture shall make their Law 9. E. 4. 24. 15 E. 4. 2. Grant is a conveyance of a thing which cannot pass without Deed as advowsons rents c. Lib. 3 f. 63. Lincol. Coll. c. Sect. 260 261. The reversion expectant upon an estate taile is of no account in Law for that it may be cut off by the Tenant in Taile Tres. in fee S. and fee Taile discend al 2. files c. If the youngest daughter alien part of the Lands in Fee simple and dyeth so as a full recompence for the lands entailed descends not to her issue she may waive the taking of any profits thereof and enter into the Land entailed for the issue in taile shall never be barred without a full recompence though there be a warr in Deed or in Law descended Fo 173. a. If a man be seised of three Manors of equall value in Fee and taketh wife and chargeth one of the Manors with a reâ—â— charge and dyeth she may by the provision of the Law take a third part of all the Manor and hold them discharged bâ— if she will accept the entire Manor charged it is holden that she shall hold it so 26. E. 3. Dower 133. 18. H. 6. 17. A partition of lands intailed between perceners if it be equall at the time of the partition shall bind the issues in taile for ever albeit the one doe alien her part Dyer 1. Mar. 98. Sect. 262. When the privity of the estate is destroyed by the Feoff of one parcener upon eviction of a moity by force of an entaile against the other she shall not enter upon the alienee But in the case that Littleton putteth of disseisin of an Infant c. when the privity of the estate remaineth and the part of one is evicted she shall enter and hold in Coparcenary with her other copercener and so it is in the case of an exâ—hange 15. E. 4. 3. a. per. Littleton Lib. 4. 221 c. Bastards c. If the whole estate in part of the pâ—â—pâ—â—ty be evicted that shall avoid the partition in the whole be it of a Manor that is entire or of acres of ground c. that be severall for the partition in that case implyeth for this purpose both a warr and a condition in Law and either of them is entire and giveth an entry in this case into the whole 13. E. 4. 3. 42. Ass 22. Lib. 4. ante c. Also if any estate of freehold be evicted from the Coparcener in all or part of her pâ—â—pâ—â—ty it shall be avoided in the whole vide libr. nota Fo. 170. a ex grat If but part c. be evicted as an estate in taile or for life leaving a reversion in the Copercener Where one Copercener taketh benefit of the condition in Law she defeateth the partition in the whole But when she vouched by force of the warr in Law for prrt the partition shall not be defeated in the whole but she shall recompence for that part Sic nota diversit 5 E. 3. Tit. Voucher 249. Also there is another diversity between a recovery in value by force of the warranty upon the exchange upon the partition for upon the exchange he shall recover a full recompence for all that he loseth but upon the pahtition she shall recouer but the moity or halfe of that which is lost to the end that the losse may be equall There are more and greater privities in case of partition in persons bloud and estates than there is in exchanges 19. H. 6. 26. 18. E. 2. t. aid 171. When the whole Privity between Coparceners is destroyed there ceaseth any recompence to be expected either upon the condition in Law or warranty in Law by force of the partition Fo. 174. a. If one coparcener maketh a Feoffment in Fee and after her Feoffee is impleaded and voucheth the Feoffer she may have aid of her coparcener to deraign a Warrant Paramount but never to recover pro rata against her by force of the warrant in law upon the partition for by her alienation she hath dismissed her self to have any part of the land as Parcener And as parcener she must recover pro rata c. 31. E. 3. 24. 11. H. 4. 22 23. And yet in some case the Feoffee of one coparcener shall have aid c. and therefore if there be two coparceners and they make partition and the one of them infeoffs her Son and Heir apparent and dyeth the Son is impleaded he shall pray in aid c. for that the warranty between the Mother and the Son is by Law adnulled and therefore the Law giveth the Son albeit he be in by Feoffment to pray in aid
if the disseisee disseise the heir of the disseisor albeit the heir recover the land against the disseisee yet shall he leave the preceding right in the disseisee So if a woman that hath right of Dower disseisâ— the heir and he recover the land against her yet shal he leave the right of Dower in her 5 Ass 1 10 Ass 16. 50 E 3 7 30 Ass â— E 3. â—ntry 56. Another diversity is to be noted when the meer right is subsequent and translated by act in Law there albeit the possession be recontinued yet that shall not draw the naked right with it as if the heir of the disseisor be disseised and the disseisor infeof the heir apparent of the disseisee being of full age and then the disseisee dyeth and the naked right descends to him and the heir of the disseisor recover the land against him yet doth he leave the naked right in the heir of the disseisee So if the discontinuee of Tenant in Tail infeoff the issue in Tail of full age and then the discontinuee recover c. yet he leaveth the naked right in the issue 12 Ass 41. 27 E 3 84 488. 23 H 8. Restore al action Br 5. vide S 473 475 478 487 But if the heir of the disseisor be disseised and the disseisee release to the disseisor upon Condition If the Condition be broken it shall revest the naked right And so if the disseisâ—e had entred upon the heir of the disseisor and made a Feofment in fee upon Condition if he enter for the Condition broken and the heir of the disseisor enter upon him the naked right should be left in the disseisee But if the heir of the disseisor had entred before the Condition broken then the right of the disseisee had been gone for ever 38 E 3 16 9 H 7 24 Sect 448 Naturall seisin is the freehold in deed and the civill the freehold in Law Bract l 4 f 206 236 Brit f 83 b Vide S 680 If a man levy a fine to a man Sur Com c Com ceo c. or a fine SuÌ„ conusee de droit tantum these be feoffments of record and the Conusee hath a freehold in Law in him before hee entreth 42 E 2 20 10 H 6 14 17 E 3 7 8 2 E 3 31. Vpon an exchange the parties have neither freehold in Deed nor in Law before they enter so upon a Petition the freehold is not removed untill an entry 11 H 4 61 21 H 7 12 If Tenant for life by the agreement of him in the reversion surrender unto him he in reversion hath a freehold in Law in him before he enter 32 E. 3 Bar. 262 4â— Ass â— 13 H 4 Surr. 10 Vpon a livery within view no freehold is vested before an entry 31 E 3 12 Fo 266 b If a man do bargaine and sell land by Deed indenture and intollenâ—â—â—â— the freehold in Law doth passe presently and so when use are raised by covenant upon good consideration If a Tenant in a praecipe being seised of Lands in fee confess himselfe to be a villaine to a stranger and to hold the land in villenage of him the stranger by this acknowledgement is actually seised of the freehold and inheritance without any entry 17 E 3 77 18 E 4 25 Sect 449 450 451 Fo. 267 a A release of all the right may be good to him in revoâ—sion or to him in remainder in deed â— E 3 5â— albeit he hath nothing in the freehold because he hath an estate in hiâ— â— E 4 13 14 H 4 32 b 41 E 3 17 49 E 3 28 case ult For he to whom a release is made of a bare right in lands and tenements must have either a freehold in deed or in Law in possession or a state in remainder or reversion in fee or fee taile or for life But note that the state which maketh a man Tenant to the precipe is said to be the freehold 3 E 2 enter 7. F. N.B. 20. E. Sect. 452. Fo. 267. b. Note that as a release made of a right to him in reversion or remainder shall aid and benefit him that hath the particular estate for years life or estate taile So a release of a right made to a particular Tenant for life or in taile shall aid and benefit him or them in remainder Sils ceo peient monstre The one cannot plead the Release made to the other without shewing of it for that they are privy in estate There is a diversity between severall estates in severall Lands and severall estates in one land for if two Tenants in Common of Lands grant a rent charge of forty shillings out of the same to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of Law was severall But if one be Tenant for life of lands the reversion in fee over to another if they two joyne in grant of a rent out of the lands if the grantee release either to him in the reversion or to Tenant for life the whole rent is extinguished for it is but one rent and issueth out of both estates Sect. 454. Fo. 68. a. Note two diversities 1 Between a Seigniory or rent service and a rent charge for a Seigniory or rent service may be released and extinguisht to him that hath but a bare right in the land in respect of the privity betwenn the Lord and the Tenant in right for he is not only as Tennanr to the avowry but if he die his heire within age he shall be in ward and if of full age he shall pay reliefe and if he die without heire the land shall escheat But there is no such privity in case of a rent charge for there the charge lieth upon the Land The second diversity is betweene a Seigniory and a bare right to land for a release of a bare right to land to one that hath but a bare right is void But a release of a Seigniory to him that hath but a right is good to extinguish the Seigniory Nota Seigniory rent or right either in praesenti or in future may be released five manner of wayes and the first three without any privity 1. To the Tenant of the freehold in deed or in Law 2. To him in remainder 3. To him in reversion The other two in respect of privity as 1. Where the Lord releaseth his Seigniory to the Tenant being disseised having but a right and no estate at all 2. In respect of the privity without any estate or right as by the demandant to the vouchee or donor to the donee after the donee hath discontinued in fee. vid. S. 455. l. 10. fo 48. Lampets case If the Lord hath accepted services of the disseisor then the disseiser cannot enforce the Lord to avow upon him though his beasts be taken c 20 H. 6. 9. b. 2 E 4. 6. a. But some do hold that if
there be Lord and Tenant and the Tenant be disseised and the disseisee die without heir the Lord accepts rent by the hands of the disseisâ—r this is no bar to him contrary it is if he avow for the rent in Court of Record or if he take a corporall service as homage or fealty for the disseisor is in by wrong but if the Lord accept the rent by the hands of the heir of the disseisor or of his Feoffee because they be in by title this shall bar him of his escheate which is to be understood of a discent or a Feoffment after the title of escheat accrued for if the disseisor make a Feoffment in Fee or die seised and after the disseisee die without heir then there is no escheat at all because the Lord hatâ— a Tenant in by title 7 E 6. escheat Br. 18. F.N. B. 1440. 7. H 4. 17 2 H 4. 8. 6 H 7. 9. vid. S. 556. Vpon the Statute 21 H 8. ca. 19. These four points are to be observed 1. That the Lord hath still election either to avow according to the Common Law by force of the Statute by reason of this word May. 2. Albeit the purview of the act be general yet all necessary incidents are to be supplied and the scope and end of the act to be taken and therefore though he need not to make his avowry upon any person certain yet he must alledge seisin by the hands of some Tenant in certain within 40. years 3. That if the avowry be made according to the Statute every plaintiffe in the replevin or second deliverance be he Termor or other may have every answer to the avowry that is sufficient and also have aid and every other advantage in Law disclaymer only excepted for disclaim he cannot because in that case the avowry is made upon no certain person 4. Where the words of the Statute be if the Lord distreine upon the Lands and Tenements holden yet if the Lord come to distraine and the Tenant enchase the beasts which were within the view out of the land holden â— there the Lord distreine c. in judgement of Law the distresse is lawfull and as taken within his fee and Seigniory and the Statute being made to suppresse fraud is to be taken by equity L 9. so 136. Ascoughs case 27 H 8. fo 4. 32 H 8. ca. 2. l. 9. f. 36 â—acknaâ—â— case 34 H 8. Avow Br. 113. l. 9. f. 22 case davow 11 H. 7. 4. 34 H 6. 18. 16 E 4. 10. 21 H 7. 40. Sect. 445. Fo. 269. Note a diversity between a release of a rent service out of Land and a release of right to land As if a Lease be made to F. one for life reserving to the lessor and his heirs a certaine rent If the lessee be disseised and after the lessor release to the lessee and his heirs all the right which he hath in the Land and after the lessee enter albeit in this case the rent is extinct yet nothing of the right of reversion shall passe But admit that the Donee in taile in such case make Feoffment in fee and the donor release unto him and hiâ— heirs all the right in the Land this shall extinguish the to â—t because the Lord must avow upon him and yet the Tenant in Tail after the Feoffment hath no right in the Land but the reason is in respect of the privity and that the donor is by necessity compellable to avow upon him only c. 1 H. 5. garr 43. 14. H. 4. 38. l. 3. fo 29. l. 6. 58 10. E. 3. 26. 48. E. 3 8. b. 31. E. 3. gard 116. 5. E. 4. 3 7. E. 4. 27. 15. E. 4. 13. Trin. 18. Eliz Sir Tho. Waits case in Com. Banco Nota c. Sect. 457 458. Si veray Tenant que est disseisin reign del fiâ—gn per service de chivalry mor. son heire eant deius age le siegn avera seisam le gard del heire mes si tiel tenant fist Feoffment in fee c. auterment est 12 H. 4 13. 36 E. 3. gard 10. 6. H 7. 9. 37 H. 6. 1. 32. H. 6. 27. 7. E. 6. gard Br. There be four manner of avowries for rents and services c. viz. 1. Super verum tenentem as in the case here put 2. Supra verum tenentem in forma praedicta as where a Lease for life or a gift in tail be made the remainder in fee. 3. Upon one as upon his Tenant of the Mannor omitting very and this is when the Lord hath a particular estate in the Seigniory and so shall the donor upon the donee or lessor upon the lessee 4. Sur la matter en la terre as within his fee and Seigniory As where the Tenant by knights service maketh a Lease for life reserving a rent and die his heir within age the gardein shall avow upon the lessee 2 H. 4. 24. 12. E. 4. 42. 26. H. 6. avowry 17. 9 El. Dyer 257. 5. H 7. 11. 7. E. 4. 24. 20. E. 3. avow 131. 47. E. 3. fo ult 38. H. 6. 23. Now by the Statute 21. H. 8. ca. 19. The very Lord may avow as in Lands within his fee and Seigniory without avowing upon person in certainty Note a diversity if Tenant in Tail make a Feoffment in fee yet the right of the Tenant in tail remains and shall descend to the issue in tail But when the Tenant in fee simple make a Feoffment in fee no right at all remains of his estate but when the whole is transferred to the Feoffee Also the Lord is not compellable in that case to avow upon the Feoffor but if he will as Littleton here saith he may avow on the Feoffee but so it is not in case of tenant in tail Fol. 269. b. Note a diversity between actions and acts which concern the right and actions and acts which concern the possession only for a writ of customs and services lyeth not against the Feoffor nor a release to him shall extinguish the Seigniory So if a rescous be made an Ass shall not lie against the Feoffor and him that made the Rescous because the Feoffee is Tenant and in Ass the surplusage incroached shall be avoided for these actions and acts concern the right but of a seisin and avowry which concern the possession it is otherwise and if the Lord release to the Feoffor this is good between them as to the possession and discharge of the arerages but the Feoffee shall not take benefit of it for that it extended but to the right But the Feoffor shall plead a release to the Feoffee for thereby the Seigniory is extinct as if the lessee for life doth wast and grant over his estate and the lesser release to the grantee in an action of wast against the lessee he shall plead the release and yet he hath nothing in the land and so in wast shall Tenant in Dower or by the curtesie in the like case and
of entry and Feoffment as to the land but not having regard to the Seigniory and for that the possession was never actually removed or revested from the disseisor who claimeth under the Lord the Seignory is not revived But if the Lord and the stranger disteise the Tenant and the disseisee release to the stranger there the Seigniory by operation of Law is revived for the whole is vested in the stranger which never claimed under the Lord and in that case if the Lord had died and the land had survived the Seigniory had been revived Sect. 478. Fo. â—79 a. Note that where the Law in one case doth give a man severall remedies and of severall kinds there is a great art and knowledge for him to chuse his aptest remedy 28. E. 3. 98. 9. E. 4 46. 21. E. 4. 55. 41. E. 3. 10. 2. H. 4. 12. 41. E. 3. A man makes a gift in tail the remainder in fee Tenant in tail dieth without issue an estranger intrudes and he in remainder brings a Formedon and recovered by default and makes a Feoffment in fee the intrudor reverse the recovery in a writ of desceit and entry he shall detain the Land for ever and the Feoffee shall not have a writ of right And so likewise if a disseisor die seised and a stranger abate and the disseisee release to him the heir of the disseisor shall enter and detain the land for ever 9. H 7. 24. Dormit aliquando jus moritur nunquam Right may be troden down but never troden out for where it hath been said that a release of right doth somewaies enure by way of extinguishment it is so to be understood either as Littleton doth here in respect of him that makes the release or in respect that in construction of Law it enureth not alone to him to whom it is made but to others also who be estranger to the release which as hath been said is a qulaity of an inheritance extinguished As when the heir of the disseisor is disseised and the disseisor make a Lease for life the remainder in fee if the first disseisee release to the Tenant for life this is said to enure by way of extinguishment for that it shall enure to him in remainder who is a stranger to the release and yet in truth the right is not extinct but doth follow the possession viz. The Tenant for life hath it during his time and he in remainder to him and his heirs and the right of inheritance is in him in the remainder 14 H. 8. 6. b. Sect. 479. and 480. Here Littleton putteth a diversity between releases which enure by way of extinguishment against all persons and whereof all persons may take advantage and release which in respect of some persons enure by way of extinguishment and of other persons by way of mitter le droit Or between releases which indeed enure by extinguishment for that he to whom the release is made cannot have the thing released and releases which having some quality of such release are said to enure by way of extinguishment but in troth do not for that he to whom the release is made may take the thing released 11. H. 7. 25. 37. H. 6. barr 39. 38. E. 3. 10. And here Littleton putteth cases where releases do absolutely enure by extinguishment as 1. Of the Lord and Tenant for the Tenant cannot have service to be taken of himself nor one man can be both Lord and Tenant 2. A man cannot have land and a rent issuing out of the same land 3. A man cannot have land and a common of pasture issuing out of the same land Fo. 280. a. The mesne being a feme enter-marry with the Tenant peravaile if the Lord release to the feme the Seigniory only is extinct but if the release to the husband both Seigniory and mesnalty are extinct and in this case if the Lord release to the husband and wife it is a question how the release shall enure but it is no question but that a release may be made to a measualty or a Seigniory suspended in part of the estate 19. H. 6. 19. The Lord may release his Seigniory to the tenant of the land for life or in tail sic de coeteris But so cannot one release a right or an action c. 13. E. 3. Extinguishment Br. 45. and voucher F. 120. Note that by the release of all his right in the Seigniory or the Land the whole Seigniory is extinct without any words of inheritance 12. H. 4. Release 21. 18. E. 2. ibid. 5. 26. H. 8. 57. 41. Ass 6. If there be Lord and Tenant by fealty and rent the Lord granteth the Seigniory for years and the Tenant atturn the Lord release his Seigniory to the Tenant for years and to the Tenant of the land generally the whole Seigniory is extinct and the state of the lessee also But if the release had been to them and their heirs then the lessee had had the inheritance of the one moity and the other moity had been extinct Vide lib. c. Sect. 481 482. Here it appeareth by Littleton That if a man make a lease for life the remainder in fee and Tenant for life suffer a recovery by default that he in remainder should not have a Formedon by the common Law for Littleton saith that he had not any remedy before the Statute Neither is there any such Writ in that case in the Register albeit in some books mention is made of such a writ W. 2. ca. 5. 34. E. 3. Formedon 31. 11. E. 3. ibi 31. 8. E. 3. 59. F. N. B. 117. b. 7. H. 7. 13. Mes si celuy en le remainder ust entry sur le Tenant pur vie luy disseisist apres tenant entry sur luy apres tenant pur terme de vie per tiel recovery perde per default mor. ore celuy en remainder bien poit aver breve de droit envers celuy que recovera pur ceo que le mise Seigniory joine solement sur le meer droit c. Here a disseisin gotten by wrong and defeated by the entry of him that right hath is sufficient to maintain a writ of right against the recoverer in this case for albeit the seisin is defeated between the lessee for life and him in the remainder yet having regard to the recoveror who is a meer stranges and hath no title it is sufficient against him But otherwise it is against the party himself that defeateth the seisin and the law is propense to give remedy to him that right hath 7. E. 3. 62. 38. E. 3. 37. Jur. utr 1. Lands are letten to A. for life the remainder to B. for life the remainder to the right heirs of the heirs of A. A. dieth B. enters and dieth a stranger intrudeth the heir of A. shall have a writ of right of the seisin which A. had as Tenant for life Fo. 281. a. If Lands be given
of the whole Lib. 2. fo 67. Bookers case If either the grantor or grantee dye the Attornment is countermanded but if the Tenant dye he that hath his Estate may Attorn at any time If the Tenant grant over his estate his Assignee may attorn Lib. 4. fo 8. l. 6. fo 57. l. 9. fo 34. 4 H. 6. 29. 18 E. 4. 10. If an Infant hath Lands by purchase or by discent he shall be compelled to Attorn in a per que servitia 42 E 3. Age 33. 18 H. 6. 2. l. 9. fo 84. 85. Coyns case 4. M. Dy. 137. 7 E. 2. Age 140. If an infant be lessee he shall be compelled to Attorn in a quid Juris clamat the Attornment of an Infant to a grant by Deed is good and shall bind him because it is lawfull albeit he be not upon that grant by Deed compellable to Attorne Sect. 567. Fol. 315. b. The grant of the reversion by Deed with the attornment of lessee for years do countervaile in Law a feoffment by livery as to the passing of the freehold and inheritance And Tenant by statute Merchant or Staple or by Elegit must also attorn for the grantee may have a venire facias ad computat or tender the mony c. and discharge the Land and if the reversion be granted by Fine they shall be compelled to attorn in a Quid juris clamat 6 E. 3. 53. 25 E. 3. 53. Br. Attor 48. 32 E 3. scire facias 101. Dy. 1. a. And so the Executors that have the Land untill the debts be paid must attorn upon the grant of the reversion although they have not any certain terme for years Sect. 568. Fo. 316. a. If Tenant in Dower or by the curtesie grant over his or her estate and the heire grant over the reversion the Tenant in Dower or by the Curtesie may attorn because at the time of the grant made they were attendant to the heire in reversion and the grantee cannot be Tenant in Dower or by the Curtesie and if the reversion be granted by Fine the Fine must suppose that the Tenant in Dower or by the Curtesie did hold the land albeit they had formerly granted over their estate and albeit the reversion doth passe by the Fine yet the Quid juris clamat must be brought against him that was Tenant at the time of the note levied and the grantee of the reversion must bring an action of waste against the Assignee of Tenant in Dower or by the Curtesie for they themselves cannot hold of any but of the heire and therefore in respect of the privity they shall attorn and be subject to an action of waste as long as the reversion remaineth in the heire albeit they have granted over their whole estate and note that if the grantee of the reversion doth bring an Action of wast against the Assignee of Tenant by the Curtesie the plaintiffe must rehearse the Statute which proveth that no prohibition of waste in that case lay at the common Law as it did if the heir had brought it against the Tenant by the Curtesie himselfe and therefore some doe hold that if the heir do grant over the reversion that the Attornement of the Assignee of the Tenant by Curtesie or of Tenant in Dower is sufficient because they afterward must be attendant and subject to the Action of waste 10. H. 4 Attornment 16. 11 H. 4. 18. F.N.B. 55 E. Reg. fo 72. 4 E. 3. 26. If the reversion of lessee for life be granted and lessee for life Assigne over his estate the lessee cannot attorne but the attornment of the Assignee is good because it behoveth that the Tenant of the land doe attorne and after the Assignment there is no tenure or attendance c. between the lessee and him in reversion 18 E. 4. 10. b. 26 E. 3. 62. 5 H. 5. 10. Sect. 569 570 571 552 573. Fo. 316. b. No Quid juris clamat lyeth against Tenant in taile but if a man make a gift in taile the remainder in fee and the Seigniory or rent charge issuing out of the land be granted by Fine the Conusee shall maintaine a per que servitia or a Quem redditum and compell him to Attorne for herein his estate of inheritance is no priviledge to him for that a Tenant in fee simple as his Estate was at the Common Law is also compellable in these cases to attorne Lou le reversion est dependant sur lestate del franktenement suffist que le tenant del franktenement attorn sur grant del reversion c. Si lease pur terme dans c. ou done en le taile soit fait reserve un rent per le grant del reversion en tiel case le rent passara pur ceo que tiel rent est incident al reversion nemy è converso If a man let land to another for his life and after he confirme by his Deed the estate of the Tenant for life the remainder to another in fee and the Tenant for life accept the Deed c. Albeit he in remainder in this case hath no remedy to come to the Deed during the life of Tenant for life yet because he is privy in Estate he shall not maintaine an action of waste without shewing the Deed but when the remainder is once executed he shall not need to shew the Deed Vide Pl. Com. Colthirsts case D St. Ch. 20. fol. 93 94. Pl. Com. 149. Throckmortons case 45 E. 3. 14. 15. 11 H. 4. 39. 14 H 4. 31. As in Physick nullum medicamentum est idem omnibus so in Law one forme or president of conveyance will not fit all Cases Sect. 574. Fo. 318. a. If one joyntenant make a Lease for years reserving a rent and dye the survivor shall not have the rent therefore Littleton here addeth materially for the privity that was betwen the Tenant for life and them in the reversion 2 Eliz. Dyer 176. Tenant for life shall not be compelled to attorn in a Quid juris clamat upon the grant of a reversion by Fine holden of the King himselfe without licence For it is a generall rule that when the grant by fine is defeasible there the Tenant shall be compelled to attorne 45 E. 3. 6. b. 13 Eliz. Dy. 188. Lib. 3. fo 86. Justice Windhams case 36 H. 6. 24. As if an Infant levy a Fine this is defeasible by Writ of Errour during his minority and therefore the Tenant shall not be compelled to attorn So if the land be holden in ancient Demesn and he in the reversion levy a Fine of the reversion at the Common Law this is reversible in a Writ of Deceit c. 5 E. 3. 25. 3 E. 3. Ancient Demesn 16. So if an Alienation be in Mortmain the Lord Paramount may defeat it c. 17 E. 3. 7. 22 E 3. 18. So if a Tenant in Tail had levied a Fine it was defeasible by the issue in Tail 24 E 3. 25. b. 37
which inheritances put in Abeyance are by some called Haereditates jacentes Bract. l. 1. c. 2. and some say Que le fee est en baiaunce Brit. fo 249. Sect. 641. Fol 343. b. Principium est quasi primum caput from which many cases have their original or beginning which is so strong as it suffereth no contradiction Contra negantem principia non est disputandum 11 H. 4. 9. Note a diversity when the right of fee simple is perpetually by Judgement of Law in Abeyance without any expectation to come in esse there he hath the qualified fee Concurrent ' his quae in jure requiruntur may charge or alien it as in the case of Parson Vicar Prebend c. But where the fee simple is in Abeyance and by possibility may every hour come in esse As if a lease for life be made the remainder to the right heirs of I.S. the fee simple cannot be charged till I.S. be dead Lands intailed may be charged in fee for the estate Tail may be cut off by Fine or Recovery Also the estate Tail may continue and yet Tenant in tail may lawfully charge the Land and binde the issue in Tail 44 E. 3. 21 22. As if a disseisor make a gift in Tail and the Donee in consideration of a Release by the disseisee of all his right to the Donee grant a rent charge to the disseisee and his heirs proportionable to the value of his right this shall binde the issue in Tail Vide Sect. 1. Bridgewaters Case 59. fol. 48. b. Which Lands by the Rule of Littleton may be charged and therefore if the owner of those 13 acres grant a rent charge out of those 13 acres generally lying in the Meadow of eighty without mentioning where they lie particularly there as the state in the land removes the charge removes also If the Parson dye and in time of Vacation the Patron of the assent of the Ordinary and the Patron and Ordinary grant an Annuity or rent charge out of the Gleab this shall binde the succeeding Parsons for ever A Church Parochial may be Donative and exempt from all Ordinary Jurisdicton and the Incumbent may resign to the Patron and not to the Ordinary neither can the Ordinary visit but the Patron by Commissioners to be appointed by him And by Littletons Rule The Patron and Incumbent may charge the Gleab and albeit it be Donative by a Lay-man yet merè Laicus is not capable of it but an able Clerk infra sacros ordines is for albeit he come in by Lay Donation and not by admission or institution yet his function is spiritual Vide 133 530. 11 E. 3. Jur. utr 3. 8. Ass 29. 31. 13 Ass 2. As the King may create Donatives exempt from the visitation of the Ordinary so he may by his Charter license any subject to found such a Church or Chappel and to ordain that it shall be Donative and not Presentable and to be visited by the Founder and not by the Ordinary And thus began Donatives in England whereof common persons were Patrons F.N.B. 35 E. 4. 2. A.B. Dyer 10. El. f. 273. 14 El. cap. 5. 2 H. 5. cap. 1. Ordinarius is he that hath ordinary Jurisdiction in causes Ecclesiastical immediate to the King and his Courts of Common Law for the better execution of Justice as the Bishop c. Regularly according to the Ecclesiastical Laws allowed by the Laws of this Realm viz. which are not against the Common Law whereof the Kings Prerogative is a principal part nor against the Statute and Customs of the Realm The Ordinary and other Ecclesiastical Judges do proceed in Causes within their Conusance and this Jurisdiction was so bounded by the ancient Common Laws of the Realm and so declared by Act of Parliament 25 H. 8. c. 19. 33 H. 6. 34. 32 H. 6. 28. Note that institution is a good plenarty against a Common person but not against the King unless he be inducted and that is the cause that Regularly plenarty shall be tryed by the Bishop because the Church is full by institution which is a spiritual act but void or not void shall be tryed by the Common Law 22 H. 6. 27. 38 E. 3. 4. At the Common Law if an usurpation had been had upon an Infant or feme Covert having an Advowson by discent or upon Tenant for life c. the Infant feme Covert and he in the reversion were driven to their Writ of Right of Advowson for at the Common Law if the Church were once full the Incumbent could not be removed and plenarty was a good plea in a Qu. imp or Assize of dar Presentment and the reason of this was to the intent that the Incumbent might quickly intend and apply himself to his spiritual charge And secondly the Law intended That the Bishop that had Cure of Soules within his Diocesse would admit and institute an able man c. 6 E. 3. 28. 39. 52. If the King do present to a Church and his Clerk is admitted and instituted yet before induction the King may repeal and revoke his Presentation But Regularly no man can be put out of possession of his Advowson but by admission and institution upon an usurpation by a Presentation to the Church Cum aliquis jus praesentandi non habens praesentaverit c. and not by collation of the Bishop 45 E. 3. 35. 38 E. 3 4. 13 El. Dyer 292. 18 El. Dyer 348. 14. E. 4. 2. 7 H. 4. 32. fol. 344. b. Nota that an usurpation upon a presentation shall not only put out of possession him that hath right of presentation but right of Collation also Therefore at this day the Incumbent shall be removed by a Qu. imp or Assize of dar ' presentment if there be not a plenarry by six moneths before the Teste of the Writ but then the Incumbent must be named in the Writ or else he shall never be removed 9 H. 6. 32. 56. 19 H. 6. 68. At the Common Law if hanging the Qu. imp against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Qu. imp against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another in this if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop and remove the Incumbent that came in pendente lite by usurpation for pendentelite nihil innovetur and therefore at the common Law it was good policy to bring the Qu. imp against the Bishop as speedily as might be So it is good policy at this day to name the Bishop in the Qu. imp for then he shall not present by lapse 30 E. 3. Qu. imp Statham 5 E. 4. 115. 9 E. 4. 30. Sect. 649 650. fol. 345. a. If Tenant in Tail of lands holden of the King be attainted of Felony and the King after Office seiseth the same the estate Tail is
in Abeyance there said to be in suspense 19 H. 6. 60. 29 Ass P. Com. 562. 563. Walsinghams Case Tenant for life the remainder in Tail the remainder to the right heirs of Tenant for life Tenant for life grant to 〈◊〉 Stat. suum to a man and his heirs both estates do passe 44 Ass 28. 44 E. 3. 10. Jâ—â— sive rectum signifieth properly and specially in Writs and pleadings when an estate is turned to a right as by discent disseisin c. where it shall be said Quid jus descendit non terra 20 H. 6. 9. But right doth also include the estate in esse in Conveyances and therefore if Tenant in fee simple make a lease for years and release all his right in the land to the lessee and his heirs the whole estate in fee simple passeth Vide Sect. 465. Pl. Com. 484. lib. 8. fol. 153. Althams Case 39. H. 6. 38. And so commonly in Fines the right of the land includeth and passeth the state of the land as A. cognovit teneâ—enta praedicta esse jus ipsius B. c. and the Statute saith Jus suum defendere which is statum suum W. 2. cap. 3. Pl. Com. 484. 487. b. And note That there is jus recuperandi jus inenandi jus habendi jus retinendi jus percipiendi jus possidendi fo 345. b. Title properly is when a man hath a lawful cause of entry into lands whereof another is seised for the which he can have no action as Title of Condition Title of Mortmain c. Vide S. 429 659 c Every right is a Title but every Title is not such a right for which an action lyeth and therefore Titulus est justa causa possidendi quod nostrum est As by a release of a right a Title is released so by release of a Title a right is released also Interest ex vi termini extendeth to Estates Rights and Titles that a man hath of in to or out of Lands and by the grant of totum interesse suum in such lands as well reversions as possessions in fee simple shall passe Pl. Com. 374. Seignior Zouches Case 487 488. Nichol. Nichols Case 23 H. 8. Tail Br. 32. 16 El. Dyer 325. b. If Tenant for life be the remainder in Tail and he in the remainder in Tail release to the Tenant for life all his right and state in the land Hereby it is said in in our Books That the estate of the lessee is not enlarged but the release serveth to this purpose to put the state Tail into Abeyance so as after that he in the remainder cannot have an action of Waste 43 Ass p. 13. 41 E. 3. Waste 83. 11 H. 4. 67. 14 H. 7. 10. Pl. com 482. per Dyer 27 H. 8. 20. Yet in that case saving reformation the lessee for life hath an estate for the life of Tenat in in Tail expectant upon his own life 42 E. 3. 23. But if Tenant in fee release to his Tenant for life all his right yet he shall have an action of Waste and if Tenant in Tail make a lease for his own life he shall have an action of Waste F N B 60. H 42 E. 3. 18. 41 E. 3. Waste 83. Sect. 658. Fol. 347. b. Here Littleton doth adde a Limitation to that which in this Chapter he had generally said viz. That an estate Tail cannot be discontinued but where he that maketh the discontinuance was once seised by force of the Tail which is to be understood when he is seised of the Freehold and Inheritance of the estate in Tail and not where he is seised of a remainder or a reversion expectant upon a Feeehold which Freehold is ever much respected in Law Vide 637 592 596 597 601 640 641. CHAP. XII Of Remitter Sect. 659. Fo. 348. a. LOu home ad 2 Titles a terres ou tenements Et adonques est adjudge eins per force de son eigne title ceo est a luy die un Remitter pur ceo que ley luy mitter destr eins en la terre c. per le pluis eigne sure title Quod prius est verius est quod prius est tempore potius est jure A Remitter is an operation in Law upon the meeting of an ancient right remediable and a latter state in one person where there is no folly in him whereby the ancient right is restored and set up again and the new defeasible estate ceased and vanished away 25 Ass p. 4. 11 H. 4. 50. a. Here in this case Titles includeth Rights for being properly taken as in case of a Condition Mortmain Assent to a Ravisher c. there is no Remitter wrought unto them because these are but bare Titles of Entry for the which no action is given but a Remitter must be to a precedent right And Littleton in this Chapter putteth all his cases only of Remitters to rights remediable 429. 650. Sect. c. 34 H. 8 Remit Br. 50. 44 E. 3. Attaint 22. 38 Ass p. 7. Note two things 1. That this Remitter is wrought in this case by operation of Law upon the Freehold in Law descended without any entry 2. That the Law so favoureth a Remitter that if the discontinuee be an Infant or feme Covert and Tenant in Tail after a discontinuance djsseise them and dye seised the issue shall be remitted without any respect of the privilege of Infancy or Coverture 11 E. 4. 1. In this case and many other the Law that abhorreth Suits of vexation doth avoid circuity of action for the Rule is Circuitas est evitandus 11 E. 3. 3. Ass 85. 4 E. g. 35. 14 H. 6. 27. 10 H. 7. 11. F N B Mesne and Waste Sect. 660. Fo. 348. b. Since Littleton wrote and after the Statute of 2â— H. 8. c. 10. If Tenant in Tail make a Feoffment in fee to the use of his issue being within age and his heirs and dieth and the right of the estate Tail descend to the issue being within age yet he is not remitted because the Statâ— executeth the possession in such plight manner and form as the use was limited sic de similibus 35 H. 8. Dyer 54. b. 6 E. 6. ib. 77. 1 2 P.M. 116. 1 2 P. M. 129. 191. 28 H. 8. 23. b. Pl. Com. Amy Townsends Case 34 H. 8. Remit Br. 49. But if the issue in Tail in that case wave the possession and bring a Formedon in the Discend and recover against the feoffees he shall thereby be remitted to the estate Tail otherwise the lands may be so incumbred as the issue in Tail should be at a great inconvenience but if no Formedon be btought if that issue dyeth his issue shall be remitted because a state in fee simple at the Common Law descendeth unto him Pl. Com. supra Nota in this case that the State of the land out of which the rent issued being defeated the rent is defeated also Fo. 349. a. But
if Tenant in tail make a Lease for life whereby he gaineth a new reversion in fee so long as Tenant for life liveth and he granted a rent-charge out of the reversion and after Tenant for life dyeth whereby the grantor becometh Tenant in Tail again and the reversion in fee defeated yet because the grantor had a right of the intail in him cloathed with a defeasible fee simple the rent charge remaineth good against him but not against his issue which diversity is observable 11 H. 7. 21. Edriches case If the heir apparent of the disseisee disseise the disseisor and grant a rent charge and then the disseisee dieth the granter shall hold it discharged for there a new right of entry doth descend unto him and therefore he is remitted So if the Father disseise the grandfather a grant and rent charge and dyeth now is the entry of the grandfather taken away if after the grandfathet dyeth the Sonne is remitted So as where our authour putteth his example of a fee taile it holdeth also in case of fee simple and Littleton que la terre est discharge del rent c. But the whole grant is not thereby avoided for the grantee shall have notwithstanding a writ of annuity and charge the person of the grantor Lib. 2. fo 36. b. Wards case Also Littleton here puts his case of things granted out of the Land But if the issue at full age by Deed Indentâ—â—â— or Deed Poll make a Lease for years of the land and after by the death of tenant in tail he is remitted It is holden that he shall not avoid the Lease because it is made of the Land it self and the Land is become by the Lease in another then it is in the case of a grant of a rent charge 33 H. 8. Dy. 51. b. and vide Sect. 289. * Sect. 661. Fo. 349. b. Regularly a man shall not remitted to a right remediesse for the which he can have no action l. 3. f. 3. Marquesse of Winchesters case Neither an action without a right nor a right without an action can make a remittance As if Tenant in tail suffer a common recovery in which there is errour and after Tenant in tail disseise the recoveror and dyeth here the issue in tail hath an action viz. a writ of error but as long as the Recovery remaineth in force he hath no â—ight and therefore in that case there is no remittance If B. purchase an Advowson and suffer an usurpation and six â—oneths to passe and after the usurper grant the Advowson to B. and his heirs B. dieth his heir is not remitted because his right to the Advowson was remedilesse a right without an action Tenant in tail of a Manor whereunto an Advowson is appendant maketh a discontinuance the disconâ—â—ee grants the Advowson to Tenant in tail and his heirs Tenant in tayl dyeth the issue is not remitted to the Advowson because the issue had no action to recover the Advowson before he recovered the Manour whereunto the Advowson was Appendant 5 H. 7. 35. And so it is of all other inheritance regardant appendant or appurtenant a man shall be remitted to any of them before he recontinueth the Manor c. whereunto they are regardant appendant c. Car nul ne poit claimer droit en les appurtenances ne en les accessories que nul droit ad en le principall Brit. fo 126. But on the other side if a man be remitted to the principal he shall also be remitted to the appendant or accessory albeit it were severed by the discontinuee or other wrong doer and therefore if Tenant in tail be of a Manor whereunto an Advowson is appendant and infeoffeth A of the Manor with the appurtenances A. re-enfeoffeth the Tenant in tail saving to himself the Advowson Tenant in tail dieth his issue being remitted to the Manor is consequently remitted to the Advowson although at that time it was severed from the Manor So it is in the same case if Tenant in tail had been disseised and the disseisor suffer an usurpation if the disseisee enter into the Manor he is also remitted to the Advowson 8 R. 2. Qu. imp 199. 2 H. 4. 18. 14 H. 6. 15 16. FNB. 25. b. 36. f. 33 H. 8. Dy. 48. b. 24 E. 3. discontinuance 16. Sect. 663 664. Fo. 350. If the discontinuee after the death of Tenant in tail make a charter of feoffment to the issue in tail being within age who hath right and to a stranger in fee and make livery to the infant in name of both the issue is not remitted to the whole but to the half for first he taketh the fee-simple and after the remittance is wrought by operation of Law and therefore can remit him but to a moity Vide Sect. 288. Si Tenant in tale infeoffe sou heire apparent l'heire evant de plein age al temps de feoffment puis le Tenant en taile mor ceo nest remitter al heire pur ceo que il fuit sa folly que il evant de plein age voile prender tiel feoffment c. By this feoffment albeit the heir apparent hath some benefit in the life of his Ancestor yet if he thereby besides his own subject during his life to all charges and incumbrances made or suffered by his Ancestors 40. E. 3. 44. 18. E. 4. 25. Sect. 665. Fo. 351. a. Nota that the estate which doth in this case work the Remitter could not have continuance after the decease of the wife and so on the other side if the husband make a discontinuance and take back an estate to him and his wife during the life of the husband this is a Remitter to the wife presently albeit the estate is not by the limitation to have continued after the decease of the husband which case is proved by the reason of the case which our Author here putteth If a man take to wife a woman seised in fee he gaineth by the intermarriage an estate of freehold in her right which estate is sufficient to work a Remitter and yet the estate which the husband gaineth depending upon uncertainty and consisteth in privity 13. H. 4. 6. 18. E. 4. 5. 11. H. 7. 19. 10. H. 6. 11. 7. H. 6. 9. b. For if the wife be attainted of felony the Lord by escheat shall enter and put out the husband otherwise it is if the Felony be committed after issue had 4. Ass p. 4. 4. E. 3. Ass 166. vide S. 58. Also if the husband be attainted of felony the King gaineth no freehold but a pernancy of the profits during the Coverture and the freehold remaineth in the wife 2. If she were possessed of a terme for yeers yet he is possessed in her right but he hath power to dispose thereof by grant or demise and if he be outlawed or attainted they are gifts in Law Pl. Cam. 260. b. Dame Hales case 50. Ass 5. 21. E. 4. 35. 7. E. 4. 6.
shall recover by a Writ of Cosinage Aiel and Besail and lastly that the heire of the wife after the death of the Father and Mother shall not be barred of his action to demand the heritage of his Mother by Writ of Entry which his Father aliened in the time of his Mother whereof no Fine was levied in the Kings Court Fo. 365. b. Concerning the 1. There be two points in Law to be observed 1 Albeit the Statute in this Article name a Writ of Mordanc and after writs of Cosinage c. yet a writ of Right a Formedon a writ of Entry ad Com. legem and all other like actions are within the purview of this Statute * 2 Where it is said in the said Act if the Tenant by the Curtesie alien yet his release with warranty to a disseisor c. is within the purview of the Statute for that it is in equall mischief 11 E. 2. gar 83. 4 E. 3. gar 63. Pl. Cam. 110. * 27 E. 3. 80. 14 E. 4. gar 5. and 4. M. Dy. 148. a. If Tenant by the Curtesie be of a Seigniory and the Tenancy escheat unto him and after he alien with warranty this shall not binde the issue unlesse assets descend for it is in equal mischief 22. Ass 9. 37. temps i.e. gar 86. Note a diversity between a warranty on the part of the Mother and an estoppel for an estoppel c. shall not binde the heir when he claimeth from the Father As if Lands be given to the husband and wife and to the heires of the husband the husband make a gift in Tail and dieth the wife recover in a Cui in vita against the donee supposing that she had fee simple and make a feoffment and dieth the donee dyeth without issue the issue of the husband and wife bring a Formedon in the Reverter against the Feoffee and notwithstanding he was heir to the Estoppel and the Mother was Estopped yet for that he claimed the Land as heir to his father he was not Estopped 18 E 3. 9. If a feme heire of a disseisor infeoffe me with warranty and marrieth with the disseisee if after the disseisee bring a Praecipe against me I shall rebut him in respect of the warranty of his wife and yet he demandeth the Land in another right and so if the husband and wife demand the right of the wife a warranty of the Collateral Ancestor of the husband shall barre 21. R. 2. judgement 263. By the Statute of 11 〈◊〉 7. c. 20. where the woman hath any estate for life of the inheritance or purchase of her husband or given to her by any of the Ancestors of the husband or by any other person seised to the use of her husband or of any of his Ancestors there her alienation release or confirmation with warranty shall not binde the heir l. 1. f. 176. l. 3. 50 51. 59. 60. 61. 62. Dy. 146. 362 D. St. 55 Pl. Com. 56. I will only adde two cases the one was A man seised of Lands in fee levyed a fine to the use of himself for life and after to the use of his wife and of the heirs males of her body by him begotten for her joynture and had issue male and after he and his wife levied a fine and suffered a Common recovery the husband and wife die and the issue male enter by force of the said Statute of 11 H. 7. and it was holden by the justices of Ass that the entry c. was lawful and yet this case is out of the letter of the Statute for she neither levied the Fine c. Being sole or with any other after taken husband but is by her self with her husband that made the joynture Sed qui haeret in littera haeret in Cortice this case being in the same mischief is therefore within the remedy of the Statute by the intendment of the makers of the same to avoid the disherison of heirs who were provided by the said joynture and especially by the husband himself that made the joynture M. 13. Jac. inter Harley and West in eject fir in Com. B. Linc. The other was A man is seised of Lands in the right of his wife and they two levy a Fine and the Conusee grant and render the Land to the husband and wife in especial taile the remainder to the right heirs of the wife they have issue the husband dyeth the wife taketh another husband and they two levy a Fine in Fee and the issue enter this is directly within the Letter of the Statute and yet is out of the meaning because the State of the Land moved from the wife so as it was the purchase of the Husband in Letter and not in meaning P. 17. El. in Com. B Lattons Case But where the woman is Tenant for life by the gift or conveyance of any other her alienation with warranty shall binde the heir at this day So if a man be Tenant for life otherwise than as Tenant per Curtesie and alien in fee with warranty and dyeth this shall at this day binde the heir that hath the reversion or remainder by the Common Law not holpen by any Statute But all this is to be understood unlesse the heir that hath the reversion or remainder doth avoid the estate so aliened in the life of the Ancestor for then the estate being avoided the warranty being annexed unto the estate is avoided also Sect. 725. As to the second clause of the Statute of Glocestor there are two points of Law to be observed 1. That by the expresse purview of the Statute if Assets do after descend from the Father then the Tenant shall have recovery or restitution of the lands of the Mother But in a Formedon if at the time of the warranty pleaded no Assets be descended whereby the Demandant recovereth if after the Assets descend there the Tenant shall have a Sc. fac for the Assets and not for the land intailed because that if in this case the Tenant should be restored to the land intailed then if the issue in Tail alienated the Assets his issue should recover in a Formedon Pl. Com. 110. a. l. 8. f. 53. Sims Case 2. Note That after Assets descended the recovery shall be by writ of Judgement viz. by Sc. fac which shall issue out of the Roll of the Justices c. to resummon him that ought to warrant c. Also if the Tenant will have benefit of the Statute he must plead the Warranty and acknowledge the Title of the Demandant and pray that the advantage of the Statute may be saved unto him and then if after Assets descend the Tenant upon this Record shall have a sc fac and if Assets descend but for part he shall have a scire fac for so much l. 8. fo 134. Mary Shipleys Case But if the Tenant plead the Warranty and Assets descended c. and the Demandant taketh issue that Assets not c.
in this case of Littleton when one Coparcener entreth into the whole and maketh a Feoffment of the whole this devesteth the Freehold in Law out of the other Coparcener Item when the one sister enters into the whole the possession being void and maketh a feoffment in fee this act subsequent doth so explain the entry precedent into the whole that now by construction of Law she was onely seised of the whole and this feoffment can be no disseisin because the other sister was never seised nor any abatement because they both made but one heir to the Ancestor and one Freehold and inheritance descended to them so as in judgement of Law the Warranty doth not commence by disseisin or by abatement and without question her entry was no intrusion Pl. Com. 543. fo 374. a. Tenant in Tail hath issue two daughters and discontinue in fee the yongest disseiseth the discontinuee to the use of her self and her sister the discontinuee ousteth her against whom she recovereth in an Assize the eldest agreeth to the disseisin as she may against her sister and become joynt-tenant with her And thus is the book in the 21 Ass p. 19. to be intended the case being no other in effect But A. disseiseth one to the use of himself and B. B. agreeth by this he is joyntenant with A. Fol. 374. b. Nota in these two last Sections four several Conclusions 1. That a lineal Warranty doth binde the right of a fee simple 2. That a lineal warranty doth not binde the right of an estate Tail for that is restrained by the Statute of donis Cond 3. That a lineal Warranty and Assets is a bar of the right in Tail and is not restrained by the said Act. 4. That a collateral Warranty made by a collateral Ancestor of the donee doth binde the right of an estate Tail albeit there be no Assets and the reason thereof is upon the Statute of Donis Cond for that it is not made by the Tenant in tail c. as the lineal Warranty is 3 E. 3. 22. 4 E. 3. 28. 50. M. 38 E. 3. Cor. Rege Ab. de Colchest case 45 Ass 6. Pl. Com. 554. 19 E. 4. 10. Vide S 703 747. To this may be added That the Warranty of the Donee in Tail which is collateral to the Donor or to him in remainder being heir to him doth binde them without any Assets For though the alienation of the Donee after issue doth not bar the Donor which was the mischief provided for by the Act yet the Warranty being collateral doth bar both of them for the Act restraineth not that Warranty but it remaineth at the Common Law as Littleton after saith And in like manner the Warranty of the Donee doth barre him in remainder Note Assets requisite to make lineal Warranty a barre must have six qualities 1. It must be Assets i e. of equal value or more at the time of the discent 2. It must be of discent and not by purchase or gift 3. It must be Assets in fee simple and not in fee Tail or for another mans life 4. It must descend to him as heir to the same Ancestor that made the Warranty Brit. 185. 4. E. 3. garr 63. 16. E. 3. Ass 4. 43. E. 3. 9. 7. H. 6. 3. 11. H. 4. 20. 5. It must be of Lands or Tenements or Rents or Services valuable or other profits issuing out of Lands Tenements and not personall Inheritances as Annuities c. 6. It must be in state or interest and not in use or right of actions or right of entry for they are no Assets until they be brought into possession 24. E. 3. 47. But if a rent in fee simple issuing out of the Land of the heir descend unto him whereby it is extinct yet this is Assets and to this purpose hath in Judgement of Law a Continuance 31 E. 3. Ass 5. 13. E. 3. Recovery in value 17. l. 3. f. 31. Butler and Bakers Case A Seigniory in franck-Almoign is no Assets because it is not valuable and therefore not to be extended and so it seemeth of a Seigniory of Homage and Fealty 14. E. 3. Mesne 7. Regist 293. But an Advowson is Assets whereof Fleta l. 2. c. 65. saith Item de ecclesiis quae ad donationem Domini pertinent quot sunt quae ubi quantum valeat quaelibet Ecclesia per annum secundum veram ipsius aestimationem pro Marca solidus extendatur ut si ecclesia 100. Marcas valeat per annum ad 100. solidos extendatur advocatio per annum Brit. 185. 5. H. 7. 37. 32. H. 6. 21. 33. E. 3. garr 102. Sect. 714. Fol. 375. a. Nota that albeit in this case the issue in Tail must claim as heir of both their bodies yet the Warranty of either of them is lineal to the issue 35 E. 3. garr 73. If Lands be given to a man and a woman unmarried and the heirs of their two bodies and they intermarry and are disseised and the husband releaseth with Warranty the wife dieth the husband dyeth albeit the Donees did take by moities yet the Warranty is lineal for the whole because as our Author here saith the issue must in a Formedon convey to him the right as heir to the Father and his Mother of their two bodies ingendred and therefore it is collateral for no part Sect. 715 716 717. Nunquam nimis dicitur quod nunquam satis dicitur And here it appeareth That it is not adjudged in Law a collateral Warranty in respect of the bloud for the Warranty may be collateral albeit the bloud be lineal and the Warranty may be lineal albeit the bloud be collateral But it is in Law deemed a collateral Warranty in respect that he that maketh the Warranty is collateral to the Title of him upon whom the Warranty doth fall 8 R. 2. gar 101. vide Sect. 704. Sect. 718. Fo. 376. a. Every Warranty doth descend upon him that is heire to him that made the Warranty at the Common Law Vide Sect. 3. 603 735 736 737. Hereupon many things worthy to be known are to be understood 1. That if a man infeoff another of an acre of ground with Warranty and hath issue two Sons and dyeth seised of another acre of land of the nature of Borough English the feoffee is impleaded albeit the Warranty descendeth onely upon the eldest yet may he vouch them both the one as heir to the Warranty and the other as heir to the Land 40 E. 3. 14. So it is of heirs in Gavelkinde c. 22 E. 4. 10. And in like sort the heir at the Common Law and the heir of the part of the Mother shall be vouched 49 Ass 4. 38. E. 3. 22. But the heir at the Common Law may be vouched alone in both these cases at the election of the Tenant sic de similibus Also if a man dye seised of certain lands in fee having issue a Son and a daughter by one
5. 34. per Hals Lodington * 35 Ass p. 2. When an entry shall vest or devest an estate there must be several entries into several parcels of land c. but wher the possession is in no man but the freehold in law is in the heir that entreth there the general entry into one part reduceth all into his actual possession Fol. 15. b. Possessio fratris de feodo simplici facit sororem esse haeredem 11 H. 4. 11. l. 3. Ratcliffs case All the lands and possessions whereof the King is seised in Jure Coronae shall secundum jus Coronae attend upon and follow the Crown The quality of the person doth alter the discent Sect. 9. Inheritance is not only intended where a man hath Lands c. By descent of inheritage but also by purchase Fol. 16. a. 7. H. 4. 5. * 6. E. 3. 30. A man may have inheritance in title of Nobility by creation by descent and by praescription By Creation by Writ and by Letters Patents If he be called by Writ to the Parliament he hath a Fee simple in the dignity c. Without any words of inheritance but if he be created by Letters Patents the state of inheritance must be limited by apt words or else the grant is void The creation by Writ is the ancienter by Letters Pattents the surer for he may be sufficiently created by Letters Pattents and made noble albeit he never sit in Parliament Simulier nobilis nupserit ignobili de sinit esse nobilis that is if she gain her Nobility by marriage But if a woman be noble by discent c. It is otherwise Fol. 16. b. l. 4. 118. Actons Case Littleton citeth no Authority but when the Case is rare or may seem doubtfull Prespecua vera non sunt probanda Vide Librū c. Sect. 10. Placitum á placendo quia bene placitare super omnes placet Fol. 17. a. Seised is properly applyed to Freehold possessed to Goods and Chattells Bract. lih 4. f 263. Demain of the hand i.e. manured by the hand or received by the hand Seisitus c. in dominico suo ut de feodo sc de tres c. D◠qūx home poit aver un manuel occupation c. Seisitius ut d◠feodo sc de Advowson c. Vt de feodo is to be understood positively where ut denotat ipsam veritatem non similitudinem rei Idonea persona for the discharge of the Cure should be presented freely c. By the Patron Guardian in Socage shall not present to an Advowson because by the Law he can meddle with nothing that he cannot account for Fol. 17. b. Advocatio is an advowing or taking into protection est jus patronatus 7 E. 3 4. 45 E. 3. 5. Two coparceners one of them shall have a writ of right of Advowson de medietate advocationis for in truth she hath but a right to a moity but where there be two Patrons and two Incumbents in one Church each of them shall have a Writ of Advowson de advocatione medietatis Two fee simples absolute cannot be of one and the self-same land fo 18. a. Sect. 11. And yet the several persons by Act in law a reversion may be in fee simple in one and a fee simple determinable in another by matter ex post facto as if a gift in tail bee made to a Villain and the Lord enter the Lord hath a fee simple qualified and the donor a reversion in fee but if the Lord infeoff the donor now both fee simple are united and he hath but one fee simple in him but one fee simple cannot depend upon another by the grant of the party as if lands be given to A so long as B hath heirs of his body the remainder over in fee the remainder is void Sect. 12 A purchase is always intended by title and most properly by some kind of conveiance for money or some other consideration or freely of gift An heir-loom is called principalium or haereditarium Si un monument soit deface in lesglise le heir del Ancestor poit aver son action c. 9 E. 4. 24. CAP. II. De Fee Tail Sect. 13. TAllium derived of tailler scindere Modus conventio vincont legem Fol. 19. a. Before the statute of West 2. De donis conditionalibus the heir in Tail had no Fee simple absolute at the common law though there were divers discents Annuities and such like inheritances as cannot be intailed within the said Stature remain at the common law If the King before the statute c. had made a gift in tail c. in this case if the Donee had no issue and before the statute had aliened with warranty and died and the warranty had descended upon the King this should no◠have bound the King of his reversion without assets b◠otherwise it was in the case of a common person fol. 19. b. 6 E. 3. 56. 45 Ass p. 6. The King can do no wrong Pl. c. 246. Sect. 14 15. Not only all corporate inheritances which are or may b◠holden but also all inheritances issuing out of any of those inheritances or concerning or annexed to or exercisible within the same though they lie not in tenure may be intailed As Rents Estovers Commons c. Or Uses Offices Dignities which concern lands or certain places c. But if the grant be of an inheritance meer personal or to be exercised about chattels and is not issuing out of land c As the grant of an annuity of the office to be faulconer master of horse c. Such inheritances cannot be intailed because they savor nothing of the reality Fol. 20. a. 7 E. 3. 363. In these cases the grants c. hath a fee conditional and by his grant or release he may bar his heir as he might have done at the common law viz. In grant de personal inheritances Pl. C. Manxels c. Idem semper proximo antecedenti refertur fol. 20 b. These words de son corps are not so strictly required but that they may be expressed by words that amount to as much 5 H. 5. 6. Voluntas donatoris in Charta doni sui manifestè expressa observetur Quer. c. If a man make a charter of feoffment of an acre of land to A. and his heirs and another Deed of the same acre to A and the heirs of his body and deliver seisin according t◠the form and effect of both deeds it shall enure by moities i.e. to have an Estate Tail in the one moity with the Fee Simple expectant and a Fee Simple in the other moity c. Fol. 21. a. 2 H. 6. 25. 45 E. 3. 20. Sect. 17. Robert gave the reversion of lands which Agnes his wife did hold for life to Stephan de la More Habendum post mortem dictae Agnetis in liberum Maritagium cum Johanna filia ejusdem Roberti and it is adjudged that is a good Estate Tail 5 E. 3.
17. Four things be incident to a frank-marriage 1. That it be given for consideration of mariage c. 2. that the woman or man that is the cause of the gift be of the bloud of the donor 3. If the gift be made of a thing which lyeth in tenure as of Lands c. A rent Common c. That the donees hold of the donor at the time of the Estate in frankmarriage made 4. That the donees shall hold freely of the donor till the fourth degree be past fo 21 b. * These words in liberum maritagium did create an estate in fee simple at the common law And these are such words of art so necessarily required as they cannot be expressed by words aequipollent c. Sect. 18. * Feodum talliatum i.e. haereditas in quandam certitudinem limitata viz. Quel issue inheritra per force de tiels dones come longement lenheritance endurera A gift made to a man haeredi masculo de corpore suo Reg. Judic fol. 6. Haeredi unide corpore c. An exception from the rule that all estates Tail were fee simple at the common law 39 Ass pl. 20. Sect. 19. * Whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasors fol. 22. b. Vide Libr. Non est haeres viventis And no diversity when the law creates the estate for life and when the party A man seised of lands in fee by Indenture makes a Lease for life the remainder to the heires male of his own body this is a void remainder So it is of a gift intaile the remainder to his own right heires for the reversion is in the Ancestor who during his life beareth in his body all his heires And the donor cannot make his own right heire a purchaser of an estate taile without departing of the whole Fee simple out of him Vide Libr. Dier 156. If a man make a Feoffment in Fee to the use of himselfe in tail and after to the use of the Feoffe in Fee the Feoffee hath no reversion but in nature of a remainder albeit the Feoffor have the Estate taile executed in him by the Statute and the Feoffee is in by the common law Dier 362. b. Whosoever is seised of Land hath not only the estate of the land in him but the right to take profits which is in nature of the use therefore when he makes a Feoffment in Fee without valuable consideration to divers particular uses so much of the use as he disposeth not is in him as his ancient use in point of reverter Fol. 23. a. Vide Libr. Dier 12. Fealty is incident to every tenure exc frankalm and cannot be separated from it Sect. 20. Certain Rules touching degrees c The first is That a person added to a person in the line of consanguinity maketh a degree 2. So as how many persons there be take away one and you have the number of degrees 3. It is to be noted that in every line the person must be reckoned from whom the computation is made Vide Libr. gradus dicitur à gradiendo quia gradiendo ascenditur descenditur Fol. 24. a. Vide c. Sect. 21. Exempla illustrant non restringunt legem Aequitas est convenientia rerum quae cuncta coaequiparat quae in paribus rationibus paria jura judicia desiderat jus respicit aequitatem Aequitas enim est perfecta quaedam ratio quae jus scriptum interpretatur emendat Bract. lib. 4. Fo. 186. Sect. 22 23. De dones fait en le tail la volunt del donor seÌ„r observe And these words queux doient inheriter imply a diversity between a discent and a purchase Fol. 24. b. Vide libr. Br. t. done 42. t. nosme 1. 40. A gift is made to a man and to the heirs female of his body the donee is capable by purchase and the heir female by discent Fo. 25. a. Sect. 24. Quaecunque que ser inheriter per force d'un done en le tail fait as heirs males covient conveier son title tout per les heir males Fol. 25. a. Vide 28 H. 6. t. devise c. 18. 1. * A devise may create an inheritance by other words then a gift can yet cannot a devise direct an inheritance to descend against the rule of law Vide lib. In an Estate Tail c. The male must make his conveiance by males and the female by females If A hath issue a son and a daughter and dieth and the son hath issue a daughter and dieth and a Lease for life is made the remainder to the heirs females of the body of A. In this Case the daughter of A shall not take becaus she is not heir But albeit the daughter of the son maketh her conveiance by a male male she shall take an Estate Tail by purchase for she is heir and a female Fol. 25. b. 11 H. 6. 13. 9 H. 6. 25. Sect. 25. No cross remainder or other possibility shall be allowed by Law where an Estate is once setled c. and taketh effect As if Lands be given to two husbands and their wives and to the heirs of their bodies begotten they have a joint estate for life and several inheritances 24 E. 3. 29. a. Sect. 29. 30. 20 H. 6. 36. Vide lib. * 5 H. 4. 3. a. Fol. 26. b. A man by Deed gave lands to Em. late wife of I.M. habend c. praedict E. haered I. M de corpore ejusdem E. procreat In this case the son and heir of I.M. begotten on the body of Em took no Estate with Em. in the lands because he was named after the habendum A man seised of two acres of land in fee simple hath issue two daughters and dieth and the one coparcenor giveth her part to her sister and to the heirs of the body of her father In this case the donee hath an estate tail in the moity of the donors part for the donâ—â— is not entire heir but the donor is heir with the donee and she cannot give to the heirs of her own body and the donâ—â— hath the other moity of her sisters part for life Les heirs ses heirs differ For if lands be given to the son and to his heirs of the body of his father the son hath a fee simple But if the land be given to the son and to the heirs of the body of c. eÌ„ est ta f. 27. a. Sect. 31. Every estate tail within the statute of Westm 2. must be limited either by expresse words or words aequipollent of what body the heir inheritable shall issue The grant of a subject shall be taken most strongly against himself * Fo. 27. b. Vide libr. 18 Ass p. 5. Armories are descendible to the heirs males lineal or collateral CAP. III. Sect. 32. TEnant in Tail after possibility of issue extinct hath certain
Consensus tollit errorem fol. 37. a. Sect. 43. Lou le certainty appiert queux terres c. Feme avera per la Dower la le feme entra apres la mort sa baron sans assignment de nulluy Sect. 45. The wife shall not be endowed of lands c. which her husband holdeth jointly with another at the time of c. Of his death for the jointenant which surviveth claimeth the land by the feoffment and by the survivorship which is above the Title of Dower c. But Tenants in common have several freeholds and inheritances and their moities shall descend to their several heirs and therefore their wives shall be endowed fol. 37. b. Sect. 46. Lissue en le Tail poit enter sur la possession la feme endowe ad ost eccles apres la mort sa baron The husband is seised c. being within age he cannot by a voluntary Act bind himselfe but otherwise is it where he doth an act whereunto he is compelled by Law Fo. 38. a. And so an Infant cannot endow his wife aed osti eccl but he may endow her ex Ass patris because the Father is sole seised c. And the Son hath nothing c. Sect. 48. Guardian in chivalry c. Is not possessed of the Land untill he doth enter because it is permanent of the wardship of the body he is possessed before seisure because it is transitory After the guardian hath entred c. A Writ of Dower lieth against him and not against the heire who is Tenant of the Freehold because the Law hath trusted him to plead for the heire within age that is in his custody and also for his own particular interest c. Fo. 38. b. Vide quaere 44. E. 3. 13. 4. H. 6. 11. If the heire before the gardein enter endow the wife of more than she ought and the gardein assigne over his Estate his Assignee shall have no Writ of Admesurement because it was a thing in action But the gardein himselfe shall have a Writ c. Stat. West 2. ca. 7. And so shall the heire have a Writ c. At full age and some have said that in that case he may have it within age Fo. 39. a Vide c. F.N.B. 149. Judicium quasi juris dictum the very voyce of Law and right and therefore judicium semper pro veritate accipitur In every judgement there ought to be three persons actor reus judex Fo. 39. a. The common Law giveth this priviledge to the Land holden by Knights service viz. That it shall not be dismembred but the whole Dower taken of the Lands holden in Socage for that the Knights service is for the defence of the Realm which is pro bono publico and therefore to be favoured Sect. 49. Sect. 50. Lou le judgment est fait en Court le roy ou en aut Court c. le feme poit perender ses vicines en lour presence endow luy inper metes bounds de la pluis beale c. que el ad come gardein en socage cei eÌ„ solvaÌ„on del Gardein en Chivelry durant le nonage lenfant Lect. 52. If a man taketh a wife seised of Lands c. In Fee hath issue and after the wife is attainted of Felony so as the issâ—â— cannot inherit to her yet he shall be Tenant by the Curtesie in respect of the issue which he had before the Felony and which by possibility might then have inherited But if the wife had been attainted of Felony before the issue albeit he hath issue afterwards he shall not be Tenant c. Fo. 40. a. Except the wife be actually seised the heire shall not make himselfe heire to the wife and this is the reason that a man shall not be Tenant by the Curtesie of a seisin in Law Lib. 8 fo 34. in Paines Case Sect. 53. Si Teniments sont dones a un home a les heires quae il engendera de corps sa feme en tiel case la feme nad riens c. Vnc'si le baron devie sans issue me la feme ser endowe per ceo que lissue que el per possibility puissoit auÌ„ per. me le baron puit enheriter A man seised of land in generall Taile taketh wife and after is attainted of Felony before the Statute of 1. E. 6. The issue should have inherited and yet the wife should not have bin endowed For the Statute of West 2. ca. 1. relieveth the issue in taile but not the wife in that case But at this day if the husband be attaint of Felony the wife shall be endowed and yet the issue shall not inherit the lands which the Father had in Fee simple If the wife elope from her husband c. she shall be barred of her dower and yet the issue shall inherit Sect. 55. The Law hath inflicted five punishments upon him that is attainted of Treason or Felony 1. He shall lose his life by an infamous death of hanging c. 2. His wife shall lose her Dower 3. His bloud is corrupted his children made ignoble if c. And cannot be heirs to him 4. He shall forfeit all his Lands and Tenements 5. All his goods and Chattels But the wife of a man attaint of Felony shall be endowed by force of the statute in that case provided If the heir be vouched by the Tenant in the Writ of Dower in the gard of the gardein The gardein shall plead it as well when he comes in as vouchee as when he is Tenant Also if the Lands holden in socage be not equall to the lands holden in chivalry some say that the defendant in the Writ of dower must have assets in her hands to the value of her Dower so as he shall not be partly indower against the gardein and partly retain in her own hands 18. E. 3. 4. But by 25. E. 3. 52. b. auterment est que est melior opinion c. CHAP. VI. Tenant a Terme de vie Sect. 56. IF Tenant per terme dauter vie dyeth living cesty que vie he that first entreth shall hold the land during that other mans life and he is in Law called an Occupant because his title is by his first occupation And so if Tenant for his own life grant over his Estate to another if the grantee dyeth there shall be an Occupant so it is if Tenant by the Curtesie or Tenant in Dower grant over his Estate or hers c. Fo. 41. a. l. 6. 37. nullum tempus occurrit regi in this case There can be no occupant of any thing that lyeth in grant and that cannot passe without deed because every Occupant must claime by a que estate averr the life of Ce ' que vie It were good to prevent the incertainty of the estate of the Occup to add these words to have and to hold to him and to his heirs during the life of Ce ' que
E. 4. 1. b. 4 E. 4. 10. 3. For matters within the Realm 5 E. 4. 30. the Custom of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder 4. By Certificate of the Sheriff upon a Writ to him directed 10 H 10. in case of Priviledge if one be a Citizen or a Forreiner 5. Tryal of Records by Certificate of the Judges in whose custody they are by Law All these be in Temporal causes 6. In causes Ecclesiastical as loyalty in Marriage general Bastardy Excommengment Profession c. which are to be tried by the Certificate of the Ordinary Also if a Subject of the King be killed by another of his Subjects out of England in any Forreign Country the wife or he that is heir of the dead may have an Appeal for this Murther or Homicide before the Constable and the Marshal whose sentence is upon the Testimony of Witnesses or Combate fo 74. a. vide lib. Stat. 1 H. 4. cap. 14. 13 H. 4. fol. 5. c. Anno 25 El c. CHAP. IV. Knights service Sect. 103. TEnure per homage fealty escuage est a tener per service de Chivaler trait a luy gard mariage reliefe Si haereditas teneatur per servitium militare tunc per leges infans ipse haereditas ejus c. per dominum feodi illius custodientur c. Fortesc ca. 44. Audacter quilibet facit quod se scire non diffidit Amongst the Lawes of St Edward the Confessor it is thus provided Debent enim universi liberi homines c. secundum foedum suum sciendum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum domini Regis explendum peragendum Lambert fo 135. a. And William the Conqueror confirmed that Law c. And therefore if after the Lord hath the Wardship of the body and land the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the Infant he shall be out of Ward c. for he was in Ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct cessante causa cessat causatum fol. 76. a. Regularly there be six incidents to Knights service viz. Two of Honor and Submission as Homage and Fealty and four of Profit as Escuage Ward Marriage and Relief Also these be other incidents to Knights service besides these as aid per faire fitz Chivalrer and aid per file marier c. Relevium is derived from Relevare Quia haereditas quae jacens fuit per antecessoris decessum relevatur in manus haeredum propter factam relevationem facienda erit ab haerede quaedam praestatio quae dicitur relevium Bract. lib. 2. ca. 36. fo 84. By custome the heires of him that holdeth in Socage may be in a word * By the common Law the heir shall not be in ward unlesse he claime as heire by discent Vide Libr. In many Cases the heire shall be in ward albeit the Tenant died not seised c nor in the Homage of the Lord. But if one levy a fine executory as fur grant and render to a man and his heires and he to whom the Land is granted and rendred before execution dieth his heire being within age entreth he shall not be in ward for his ancestor was never * tenant to the Lord. Vide c. If the disseisie die his heire being within age the Lord shall have the wardship of the heir of the body of the disseisee and if the disseisor dieth seised and his heire within age the Lord may seise the wardship of his heire also and of the Land also c. Vide c. For the ease of the heire and for avoiding of danger c. The heire for the most part after his full age sueth out a speciall livery which containeth a beneficiall pardon c. Fo. 77. a. Vide quaere A common person shall have nothing in ward but that which is holden of him But the King by his Prerogative shall not only have such Lands c. which the heire of his Tenant by Knights service in Capite holdeth of others but such inheritances also as are not holden at all of any as rent-charges rent-seck Fayres Markets Warrens Annuities c. Fo. 78. a. Stamf. pr. Fo. 8. * The Law is changed since Littleton wrote in many Cases both for the marriage of the body and for the wardship of the Lands and a farre greater benefit given to the Lords then the common Law gave them and some advantage given to the heires which before they had not As if the Father had made an estate for life or a gift in taile of Lands holden by Knights service to his eldest Son or other heir apparant within age the remainder in Fee to any other and dyed the heir should not have been in ward for this was out of the Stat. Merlebridg But at this day the heir shall be in that case in ward for his body and a third part of his land So if the Father had infeoffed his eldest Son within age and a stranger and the heirs of the son and died the son should have been out of ward but at this day he shall be in ward for his body and for a third part of his moity Fo. 78. a Vide c. The benefits that grew to the subject by acts of Parliament were that Tenants in Fee simple might devise their lands in such manner and form c. Also that the Father might infeoffe his eldest Sonne or other heir lineal or collaterall holden by Knights service and two parts of the Land shall be out of ward Lib. 8. fo 83. fo 163. And both the Statute of 32 and 34 H. 8. Concerning Wills and Wardships are many waies prejudiciall to the heirs as if Tenant by Knights service make a Feoffment in Fee to the use of his wife and heir heirs or to the use of a younger Sonne and his heirs or wholly for the payment of his debts In these cases although nothing at all of the Lands so holden descend to the heir but he is disherited of the same yet his body shall be in ward In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt presumenda vera tamen honesta possibilia Lex semper intendit quod rationi convenit By intendment of Law the heir is not able to do Knights service before his full age of 21. years and therefore hath a gardian c. A woman hath seven ages for several purposes appointed to her by Law as seven years for the Lord to have aid pur file Marr. Nine years to deserve Dower 12. years to consent to marriage
he hath a Deed or if it be by parol then an action upon his Case or an action of deceipt c. The proces whereby the vouchee is called is a Summon ad Warr. whereupon if the Sheriff return that the vouchee is summoned and he maketh default Mag. Cape ad valentiam is awarded when if he make default again then judgement is given against the Tenant and he over to have in value against the vouchee But if the Sheriff return that he hath nothing then after Writs of Alias and pluries a Writ of sequatur sub suo periculo shall be awarded c. and the demandant shall not have judgement to recover in value because the vouchee was never warned Vide Libr. Fo. 101. b. When the tenant being impleaded within a particular jurisdiction as in London c. Voucheth one to warr and prayes that he may be summoned in some other County out of the jurisdiction of that Court this is called a forrain voucher By the Civil Law every man is bound to warrant the thing that he selleth or conveyeth albeit there be no expresse warrant but the Common Law bindeth him not unlesse there be a warranty either in Deed or in Law for Caveat emptor c. There be three kindes of disclaimer i. e. in the Tenancy in the bloud and in the Seigniory F.N.B. 197. 151. b. In the case of Homage Auncestrel which is a special warranty in Law by the authority of Littleton the Lands generally that the Lord hath at the time of the voucher shall be liable to execution in value whether he hath them by discent or purchase But in the case of an expresse warranty the heir shall be charged but only for such Lands as he hath discent from the Auncestrel which created the warranty F.N.B. 152. And note the Lands of the vouchee shall be liable to the warranty that the vouchee hath at the time of the voucher for that the voucher is in lieu of an action and in a Warr. Cartae the Land which the defendant hath at the time of the Writ brought shall be liable to the warranty Fo. 102. a. Upon a judgement in debt the Plaintiff shall not have execution but only of that Land which the Defendant had at the time of the judgement for that the action was brought in respect of the person and not in respect of the Land Vide Lib. c. If a man give Lands in Fee with warranty and binde certain Lands specially to warranty the person of the Feoffor is hereby bound and not the land unlesse he hath it at the time of the voucher 32. E. 1. voucher 292. Sect. 146. En Chesc ' case lou le Seignior poit disclaymer c. Et de ceo poit disclaimer en Court de Record son Seigniory ē extinct le rerant tiendra del Seignior procheine Paramount c. Meliorem conditionem Ecclesiae suae facere potem praelatus deteriorem nequaquam and again Ecclesiae suae condici melior facere possunt sine consensu deteriorem non possunt sine consensu Expedit reipublicae ut sit finis litium vide fol. 103. a. If an action of Debt upon an Obligation against an Abbot the Abbot acknowledgeth the action and dieth the successor shall not avoid Execution though the Obligation was made without the assent of the Covent for he cannot falsifie the Recovery in an higher action Et res judicata pro veritate accipitur and this is but a Chattel 7 Reg. 2. tit Abbot 7. Sect. 147 and 148. If the tenant make a feoffment in fee upon condition and dieth his heir performeth the condition and re-entreth the Homage ancestrel is destroyed in respect of the interruption of the continuance of the privity and estate 1. Mich. 14 15 El. Tenant que fist homage al pere ne ferre homage al fits fo 103. b. vide le except a ce rule Sect. 149 150 c. Fealty est incident a chesc ' atturnment del tenant grant le seigniory est grant None shall do homage but the tenant of the Land to the Lords of whom it is holden fol. 104. a. 8 Ed. 4. 27. b. * The recovery of the seigniory differeth from the alienation of the Lord which is his own act or the descent of the seigniory to the heir which is an act in law for that by the Recovery the state of him that received the homage is defeated for it shall not lie in the mouth of the tenant to falsifie the recovery which was against his Lord c. for that the tenant had nothing therein c. If a man had made a Lease for years to begin at Michaelmas reserved a rent and he had suffered a Common Recovery before Michaelmas the Recoverer should distrain for rent which the lessor before the recovery could not 28 H. 8. Dyer 41. fol. 104. b. The tenant ought to seek the Lord to do him homage c. for this service is personal c. but rent may be paid and received by other and therefore a tender of the rent upon the land is sufficient fo 105. a. CHAP. VIII Grand Sergeanty Sect. 153. GRand Sergeanty est lou home tient ses terres del Roy per les services que il doit faire en son proper person com de port le banner del Roy out sa lance c. Ceo tenure en ten per service de Chivalry mes le livery paiam al Roy pur reliese le value ouster les charges reprises des terres pur an S. 154 158. Magna Sergeanty i. e. Magna Servitium because it is greater and more worthy than Knight service for this is Revera servitium Regale and not Militare onely This Tenure hath seven special properties 1. To be holden of the King onely 2. It must be done when the tenant is able in proper person 3. This service is certain and particular 4. The Relief due c. differeth from Knights service 5. It is to be done within the Realm 6. It is subject to neither Aid pur faire fits Chivaler or file mariage And 7. it payeth no Escuage fo 105. b. 11 H. 4. 34. F.N. B. 83. There were divers Lords Marshals of England before the reign of R. 2. yet King R. 2. created Tho. Moubrey Duke of Norfolk and first Earl Marshal of England per nomen Comitis Marischalli Angliae in Rot. pat 20. R. 2. Thesaurus Regis rospicit Regem Regnum And Census Regis est anima reipub fol. 106. a. Dyer 4 El. 213. Where the Grand Sergeanty is to be done to the Royal person of the King or to execute one of those high and great Offices there his tenant cannot make a Deputy without the Kings license c. But he that holdeth to serve him in his War within the Realm or by Cornage may make a Deputy fol. 107. a. vide libr. c. qu. CHAP. IX Petit Sergeanty Sect. 159. PEtit Serjeanty est lou home tient c. del
Lord will distreine averia Carurae where there is a sufficient c. to be raken beside 5. If the Lord coming to distreine had no view of the Cattell within his Fee though the Tenant drive them off purposely or if the Cattell of themselves after the view goe out of the Fee or if the Tenant after the view remove them for any other cause than to prevent the Lord of his distresse In all these cases if the Lord distreine the Tenant may make rescous Vide les autorities en ceux cases 1. 6. E. 4. 11. b. F. N. B. 102. E. Lib. 4. f. 11. Bevills c. 8. H. 4. 1. 2 17 E. 3. 43. Rescous 14. If a man come to distreine for dammage feasant and see the beasts in his soile and the owner chase them one of purpose before the distresse taken if the owner of the Soile disterine them the owner of the cattell may tescue them for the beasts must be damage fesant at the time of the distresse 16. E. 4. 10. Lib. 9. fo 22. in case de avowrie There is a diversity between a Warrant of Record and a warr or an Authority in Law for if a Capias be awarded to the Sheriff to arrest a man for felony albeit the party be innocent yet cannot he make rescous But if a Sheriffe will by authority which the Law giveth him arest any man for Felony which is not guilty he may rescue himself 14. H. 7. 20. tit Just de peace 9. To counterplead the Plantiff in an Ass by which he is delayed maketh him that pleadeth it a disseisor Otherwise it is if he had pleaded nul tort c. 24. Ass 3. 29. Ass 52. Brit. Fo. 108. If any man be disturbed to enter and manure his Land this is a disscisin of the Land it self for qui adimit medium dirimit finem qui obstrnit aditum destruit commodum 26. Ass 17. 3 E. 4. 2. par Littleton Sont 4. causes de disseisin de rent charge sc Rescous replevin enclosure denier and you may adde a Fifth oiz. reststance to distreine counterpleading and vouching a Record and failer thereof Deniall is a desseisin of a rent charge as well as of a rent seck albeit he may distreine for the rent charge as well as for rent service Nota. that when Bookes say that detainer of a rent charge or seck is a disseisin it must be intended upon a demand made 14. E. 4. 4. Et Sont 2. causes de disseisin de rent seck viz. denier inclosure Sect. 240. Maxime paci sunt contraria vis injuria Omnes illos dicimus armatos qui habent cum quo nocere possunt c. Bract. Lib. 4. f. 162. Armorum appellatione non solum scuta gladii galeae continentur sed fustes lapides as the Poet. Jamque faces saxa volant furor arma miniâ—â—rat Virgillius 1. Aeneid Sed vim vi repellere licet modo fiat moderamine inculpatae tutelae non ad sumendam vindictam sed ad propulsandam injuriam Vide Sect. 589. Where a disseisin shall be by way of admittance of the owner of the rent Since Littletons time a right profitable Statute 32. H. 8. ca. 37. hath beene made for the recovery of arrerages of rents in certaine cases c. First When Littleton wrote the Heirs Executors or Administrators of a man seised of a rent service rent charge rent seck or fee fame in fee simple or fee taile had no remedy for arrerages incurred in the life of the owner of such rents But now a double remedy is given to the Executor or Administrator for payment of debts c. viz. either to destrain or to have an action of Debt 2. The preamble of the Statute concerning Executors or Administrators of Tenant for life is to be intended of Tenant pur auter vie so long as Cesty que vie liveth who are also so holâ—en by the said double Remedy but after the estate for life determined his Executors or Administrators might have had an action of Debr by the Common Law but they could not have distrained which now they may c. l. 4. 49. Ognels Case Dyer 375. 3. If a man make a lease for life or lives or a gift in taile reserving rent this is a rent service within the Statute 4. The action of debt must be brought against them that tooke the profits when the rents became arrere or against their Executors or Administrators but the distresse may bee taken upon the land be it in the Tenants hands or of any other that claimes by or from him i. e. from or under him by purchase gift or descent and not above him as the Lord by Escheat claimeth c. by reason of his Seigniory which is a Title Paramount l. 7. 39. Lillingtons Case 11. H. 4. 94. 5. Lord and Tenant rent is arrere the Lord grants his Seigniory and dyeth The Executor shall have no remedy for these arrerages because the grantor himselfe had no remedy for them when he dyed in respect of his grant and the act is accordingly 6. If the Tenant make a lease for life remainder for life remainder in set Tenant for life payes not the rent due to the Lord the Lord dyeth Tenant for life dyes the Executor cannot distrain upon him in remainder for he claimes not by descent by or from Tenant for life And so it is of a Reversion But if a man grant a rent charge to A. for the life of B. and letteth the lands to C. for life the remainder to D. in fee the rent is arrear for divers yeares B. dyeth C dyeth A. may destraine D. in remainder for all the arrerages by the latter branch of the Statute 22. H. 8. l. 5. 118. Edridges Case 7. For the arrerage of a Nom. Paenae and for reliefe or for Aid pur faire fits Chivaler c. This Statute giveth no remedy For arrerages of the Nom. Paenae the grantee or his Executor c. may have an action of Debt for Relief the Lord must distrain but his Executor by the Common Law shall have action of Debt W. 1. c 36. F. N B. 122. Note all manner of arrerages of rents issuing out of a Freehold or inheritance whether they be in Money or Corne Cattle c. within the Statute but worke dayes or any corporall service c. are not 8. If a Feme sole seised of a rent in fee taketh husband and dyeth the husband by the Common Law should not have the arrerages due before marriage but now the Statute giveth him remedy for the same L. 4. Ognels Case Liber Tertius CAP. I. Of Parceners Sect. 241. OUr Author having treated in his two former Books 1. Of Estates of Lands and Tenements and in his second Book of Tenures whereby the same have been holden Now in his third Book doth teach us divers things concerning both of them as 1. the Qualities of their Estates 2. In what cases the
entry of him that Right hath may be taken away 3. The Remedies and in what Cases the same may be prevented or avoided 4. How a man may be barted of his Right for ever and in what Cases the same may be prevented or avoided vide lib. Nota fol. 163. 2 ouâ— 3 parceners sont forsque un heire a lour Auncest ' for albeit where there be two parceners they have moities in the lands descended to them yet are they both but one heire vid. S. 8. vers fin Nota diversitat ' between a Descent which is an act of the Law and a Purchase which is an act of the party For if a man hath two daughters c. and one of them is attaint of Felony the father dye hâ— the one moity shall descend to the one daughter and the other shall escheat But if a man make a lease for life the remainder to the right heirs of A. being dead who hath issue two daughters and one is attainted c. the remainder is void for the whole for that both the daughters should have been but one heir Fleta l. 5. c 9. l. 6 c. 47. fo 164. a. vide qu. Sunt autem plures participes quasi unum corpus in eo quod unum jus habent oportet quod corpus sit integrum quod in nulla parte sit defectum If lands be given to a man and to the heires females of his body and he hath issue a Son and a Daughter and dyeth the Daughter shall have the land by descent but if a remainder be limited to the heirs females of the body of I. S. c. the daughter shall never take it by Purchase for that shee is not heir female of the body of I. S. because he hath a Son And when the right heir doth claim by purchase he must be a compleat heir in judgement of Law And as they be but one heir and yet severall persons so have they one Free-hold in the land so long as it remains undivided in respect of any strangers Praecipe But between themselves to many purposes they have in Judgment of Law severall Free-holds for the one of them may infeoff another of her part and make livery 10 E 4. 17. E. 3. 46. fol. 164. a. vide qu. Note a diversity inter descensum in capita in stirpes If a man hath issue two daughters and dyeth this descent is in capita viz. that every shall inherit alike But if a man hath issue two daughters and the eldest daughter hath issue three daughters and the yongest one daughter all these four shall inherit but the daughter of the yongest shall have as much as the three daughters of the eldest ratione stirpium and not ratione capitum for every daughter hath a severall root c. Men descending of daughters may bee Coparceners as well as women and shall joyntly implead and be impleaded Item est alia actio mixta quae dicitur actio Familiae hirciscundae locum habet inter eos qui communem habent haeredit ' c. Et locum habet ut videtur inter cohaeredes ubi agitur de proparte sororum vel inter alios ubi res inter partes cohaeredes dividi debeat sicut sunt plures forores quae sunt quasi unus haeres vel inter plures fratres qui sunt quasi unus haeres ratione rei quae divisibilis est inter plures masculos c. Bract. l. 2. fol. 66. 71 c. l. 5. fol 443. b. vide qu. Sunt aliae res haereditariae quae veniunt in partitionem quae â—um dividi non possunt conceduntur uni ita quod aliae cohaeheredes alibi de communi haereditate habeant ad valorem sicut sunt vivaria Piscariae parci vel saltem quod partem habeant pro defectu sicut secundum piscem tertium vel quartum vel secundum actâ—m tertium vel quartum retis Item in parcis secundam tertiam aut quartam damam Bract. l. 2. 76. fo 165. a. Regnum non est divisibile Praterea sceptrum Ilione quod gesserat olim Maxima natarum Priami Virg. 1. Aeneid If there be two Coparceners of certain lands with Warrant and they make partition c. the Warranty shal remain because they are compellable to make partition Tho. de Eberston in Foresta de Pickering had kept time our of minde a Woodward for keeping of the Woods parcel of that Manor and had the bark of all the Trees felled c. as belonging to his Manor and this was adjudged a good prescription Itin. Pickr 8 E. 3. Rot. 34. Sect. 243 244 245. If Coparceners make partition at full age and unmarried and of sanae memoriae of lands in fee simple it is good and firm for ever albeit the the values be unequall but if it be of lands intailed c. it shall binde the parties themselves but not their issues unless it be equall Or if any be Covert it shall binde the husband but not the wife or her heires It shall not binde the Infant c. Modus conventio vincunt legem Pacto aliquid licitum est quod sine pacto non admittitur Quilibet potest renunciare juri pro se introduct ' Conventio autem privatorum non potest publico juri derogare Aeiâ—neâ—ia semper est perfren da propter privilegium aetatis sed esto quod filia primogenita relicto nepote vel nepte in vita patris vel matris decesserit praeferenda erit soror antenata tali nepoti vel nepti quantuÌ„ ad Ecisnetiam quia mortem parentum expectant If there be divers Coparceners of an Advowson and they cannot agree to present the Law doth give the first presentment to the eldest and this privilege shall descend to her issue nay her Assigns shall have it and so shall her husband that is tenant by the Courtesie c. But it is otherwise of a partition in Deed by the act of the party Sic vide diversit ' fol. 166. b. Cujus est divisio alterius est electio Dedi vobis possessionem quam dividetis sorte Numb c. 26. Sect. 247. If one Coparcener maketh a lease pur ans yet a Writ of Partition doth lie but otherwise is it if one or both make a lease for life because non in simul pro indiviso tenent and the writ of Partition must be against the Tenant of the Freehold 11 H. 4. 3. F.N.B. 62. g. And if one Coparcener disseise another a Writ of Partition doth not lie c. for that non pro indiviso tenent c. 4 H. 7. 9. 11 Ass 23. If two Coparcerners have two Manors by descent and they make partition that the one shall have one Manor for one year and the other the other Manor for this year and so alternis vicibus to them and their heirs this is a good partition Temps E. 1. partit 21. F.N.B. 62. 1. Of
of the other parcener to deraign the Warrant Parramount wherein note the great Equity of the Common Law 43. E. 3. 23. Pl. Com. 32. E. 1. tit Aid 178. But if a man be seised of lands in fee and hath issue two daughters and make a gift in tail to one of them and dye seised of the Reversion in fee which descends to both Sisters and the Donee of her issue is impleaded she shall not pray in aid c. either to recover pro rata or to deraign the Warrant c. for that the other Sister is a stranger to the State tail whereof the eldest was sole tenant and never partition was or could be thereof made 2 H. 6. 16. Albeit it is in the power of the Tenant tail to cut off the Reversion yet if the Infant enter before it be cut off the Law hath such Consideration of this Reversion that she that loseth it shall enter into her Sisters part and hold with her in Coparcenery for that the privity between them was not wholly destroyed Sect. 263 264. Si le part dn parcener soit defeat per loial entre c. el poit enter occupier ouesque les auter parceners c. eux compeller de faire novell partition c. Breve de partit fac gift pur parceners tantsolement Et ciel breve gift envers tenant per le curt ' encore il men ne poit auÌ„ tiel breve Albeit that the Tenant by the Curtesie be an estranger in blood yet the Writ de partit fac clearly lies against the Tenant per Curtesie because he continueth the state of Coparcenery 3. E. 3. 47. Also if two Coparceners be and one doth alien in fee they are Tenants in Common and severall Writs of Praecipe must be brought against them and yet the parcener shall have a Writ of partition against the alienee at the Common law 28 E. 3. 5. If there be three Coparceners and the eldest taketh husband and the husband purchase the part of the yongest he and his wife shall have a Writ of Partition against the middle Sister at the Common Law because he is seised of one part in the right of his wife who is a parcener Dyer 1 Mar. 98. F. N. B. 52 Regist Since Littleton wrote by the Statute 31 H. 8. c. 1. 32 H. 8. cap. 32. vide Sect. 290. one joynt-tenant or tenant in common may have a Writ of Partition against the other and therefore the alienee of one parcener may have a Writ of Partition against the other parcener because they are Tenants in common So Tenant per Curtesie shall have a Writ c. upon the Statute for albeit he is neither joynt-tenant nor tenant in common for that a Praecipe lyeth against the parcener and tenant per Curtesie yer he is in equall mischief as another tenant for life Br. tit Partit 141. Dyer 3 M. 128. A. 7 Eliz. 243. CHAP. II. Parceners by Custome Sect. 265 c. PArcenery per le Custome est lou terres discend a les fits en Gavelkind c. in Wallia haereditas partibilis est inter haeredes masculos Sect. 212. Stat. Walliae 12 E. 1. Sons are parceners in respect of the Costom of the fee or inheritance and not in respect of their person as Daughters and Sisters c. be Bracton l. 5. fo 428. Hotchpot est de mitt les terres leigne soer en frankmarriage les terres del auter soer en fee simple ensemble donques partit serre fert c. Vide Sect. 6. 266. c. There must be a Custom alleaged in some County c. to inable the wife or children to the Writ de rationabile parte bonorum Regist 142. 34 E. 1. Detin 56. 7 E. 4. 21. But such as be reasonably advanced by the Father c. shall have no further part of the goods for the words of the Writ be Nec in vita patris promoti fuerunt 3 E. 3. Detin 156. 40 E. 3. 18. fo 176. b. vide nota Sect. 268. and 269. After this putting into Hotchpot and partition made the lands given in Frankmarriage are become as the other lands which are descended from the common Ancestor and of these lands if she be impleaded she shall have aid c. So if he Coparcener that hath a rent granted to her for owelty of artition hath the rent as it had descended to her c. Brit. cap. 72. 10 E. 3. 37. 29 Ass 23. Et tout foits sur tiel partit ' les terres dones en frankmarriage demurgent a les Donees a lour heires solonque le forme de le done Car lauter parcenter navoit riens de ceo c. vide lib. so 177. b. Quod est inconveniens aut contra rationem non est permissum in lege Sect. 271 272 273. Dones en frankmarriage fueront per la common ley deuâ—â—â— lest west 2. tout temps puis ad este continue c. The gifts doe continue but not the estates 12 H. 4. 11. Item tiel mitter en Hotchpot c. est lou les auters terres ou tenements que ne fuer ' Dones en frankmarriage descend de les Donors en frankmarriage tousolement c. Si les terres dones in frankmarriage sont de tant egall va pur le an que le remnant sont ou de pluis valtie en vaine tiels tres c. ser mis en Hotchpot c Lex non praecipit inutilia inutilis labor stultus The Law shall adjudge of the value as it was at the time of the partition fo 179. a. vide nota unless the land be improved or decaid by the proper act or default of the parties Sect. 174 c. Nota que terres ne ser mis c forsque ou ils discend en fee simple car de terres discendus en fee taile partit serra fait sicome nul tiel done en frankmarriage ad este fait for the issue claimeth per formam doni voluntas donatoris c. observetur If the Ancestor infeoff one of his daughters of part of his land or purchase lands to him and her and their heires or giveth her part of his lands in taile yet she shall have a full part of the remnant of the lands in fee simple for the benefit of putting c. into Hotchpot is only appropriate to a gift in frank-marriage quia maritagium cadit in partem which shall be accounted as parcell of her advancement 13 E. 2. tit Tail Bract. l. 2. fo 77. Sect. 276. Nota that modus convent uicunt legem consensus tollit errorem But if partition be by the Kings Writ then every parcener must have his part 24 H. 3. tit partit 19. CHAP. III. Of Joynt-tenants Sect. 277. THere be joynt-tenants by other Conveyances than Lîttleton here mentioneth as by Fine Recovery Bargain and Sale Release Confirmation c. So there
the reversion to the grantee Vide Westcotes Case lib. 2. fo 60 61. If lessee for life granteth his estate to him in the reversion and to a stranger the joynture is severed and the reversion executed for the one moity by the act of the Law 7 H. 6. If a man make a lease for life and grant the reversion to two in fee the lessee granteth his estate to one of them they are not joynt-tenants of the reversion for there is an execution of the estate for the one moity and an estate for life the reversion to the other of the other moity Si home voet lesser terre a un auter par fait ou sans fait nient fesant mention que estate il avoit fert livery c. en ceo cas le lesse ad estate pur tinere de sa vie Quaelibet concessio fortissimè contra donatorem interpretanda est Legis autem constructio non facit injuriam Pl. Com. in Throgmortons case If a lease be made to two habendum to the one for life the remainder to the other for life this doth alter the generall intendment of the premises Et semper expressam facit cessare tacitum 30 H. 8. tit Joyntenans Br. 53. Dyer fo 361. Pl. Com. 100. Nota where the grant is impossible to take effect according to the letter there the Law shall make such a construction as the gift by possibility may take effect Benignae faciendae sunt interpretationes cartar propter simplicitatem laicorum ut res magis valeat quam pereat fo 183. b. Cognitio legis est copulata complicata Tunc unumquodque scire dicimur cum primam causam scire putamus scire autem propriè est rem ratione per causam cognoscere Arist 1 Metap Virg. 1. Georg. Felix qui potuit rerum cognoscere causas If a gift be made to two men and the heirs of their two bodies begotten the remainder to them two and their heirs they are joynt-tenants for life tenants in common of the estate taile and joynt-tenants of the fee simple in remainder for they are joynt purchasers of the fee simple and the remainder in fee is a new created estate but the reversion remaining in the Donor or his heirs is a part of his ancient fee simple Dyer 14 Eli. 309. Sect. 284. Lou terre eÌ„ done a. 2. females a les heires de lour 2. corps ingendres It hath been said that the husband c. should be Tenant pur le Curt ' living the other sister 17 E. 3. 51. 78. and that the issue of the one should recover the moity in a Formedon living the other sister 44 E. 3. Taile 13. 7. H. 4. 16. Corbets c. l. 1. fo 8. 84. 6. 4. Mar. Dyer 145. But Littleton hath resolved this doubt Vid. fo 183. a. If a man give lands to two men and one woman and the heires of their three bodies begotten they have severall inheritances For the Law will never intend a possibility upon a possibility Fo. 184. a. Sect. 285. If a fine be levied to two and to the heirs of one of them by force whereof he is seised he that hath Fee dyeth and after the joint-tenant for life dieth and an estranger abates in this case the heir may either suppose the Fee simple executed and have an Ass of Mordanc ou briefe de droit or he may have a scire fac to execute the fine or maintain a Writ of intrusion by which the heir supposeth that the Fee was not executed 11 H. 4. 55. F.N.B. 196. and 219. and he shall term it a remainder and yet when Land is given to two and to the heirs of one of them he in the remainder cannot grant away his Fee simple Sect. 286. 2 Jointenants de terre c. celuy que survesquist claima ad la terre per le survivor nemy ad ne poit de ceo claimer rien per discent de son compagnon c. Mes auterment est de parceners c. and the diversity is for that the Survivor doth claime above the grant c. and the heir by discent under c. If two joyntenants be of a terme and the one of them grant to I.S. that if he pay to him 10. l. deut Mich. that then he shall have his terme the grantor dyeth before the day I.S. payes the summe to his executor at the day yet he shall not have the terme but the survivor shall hold place for it was but in nature of a communication but if he had made a Lease for years to begin at Mich. it should have bound the Survivor 14 Pl. 8. 22. Pl. Com. 263. b. Hales case Ius accrescendi praefertur oneribus alienatio rei praefertur juri accrescendi If one joyntenant in Fee simple be indebted to the King and dieth no extent shall be made upon the land in the hands of the Survivor 40 Ass 36. F. N. B. 149. Pl. Com. 321. If a recovery be had against one joyntenant who dyeth before execution the Survivor shall not avoid this recovery because that the right of the moity is bound by it If one joynt-tenant in Fee take a Lease for years of a stranger per ft. indent and dyeth the Survivor shall not be bound by the conclusion because he claims above it c. If two joynt-tenants be in Fee and the one make a Lease for years reserving a rent and dyeth the surviving Feoffee shall have the reversion by survivor but not the rent because he claimeth in from the first Feoffer which is paramount the rent Dyer M. 2. 3. El. 187. Lib. 1. f. 96. and Lib. 6. fo 78 79. If one joynt-tenant granteth a rent charge out of his part and after release to his joint companion and dieth he shall hold the land charged because he claimeth not by the survivor in as much as the rel ' prevent the same 33 H. 6. 3 a. 9 El. Dyer 263. fo 185. a. But all men agree that if A. B. and C. be joynt-tenants in Fee and A. charge his part and then release to B. and his heires and dye that the charge is good for ever for B. cannot be in from the first Feoffer because he hath a joynt companion at the time of the release made and severall Writs of praec must be brought against them 37 H. 8. tit alienation Br. 31. 10 E. 4. 3. b. Sect. 287 Jus accrescendi prefertur ultimae voluntati Although an inâ—ant est unum indivisible tempore quod non eÌ„ tempus nec pars temporis ad quod tamen partes temp connectuntur and that instans est finis unius temporis principium alterius yet in consideration of Law there is a priority of time in an instant as here the survivor is preferred before the devise which Littleton distinguisheth by these words post mortem per mortem Pl. Com Fulmerstons case Two femes ioynt-tenants of a Lease for years one of
A. be bound to B. to pay 10. l. to C. A. tenders to C. and he refuseth the Bond is forfeit But if the act had been by the Condition to be made to the Obligee or to any other for his benefit a tender c. shall have the benefit because he himself is the cause that the Condition could not be performed 22 E. 4. 13. 10 H. 7. 14. b. 35 H. 8. Dyer 56. lib. 5. fo 23. Lambes Case * 8 E. 4. 14. 5. Between a Condition of an Obligation and a Condition upon a Feoffment where the act that is local is to be done to a stranger and where to the Obligee or Feoffor himselfe for the stranger shall be infeoffed as soon as conveniently may be otherwise it is of the Feoffor c. for the privity of the Condition c. Lib. 6. fo 31. Boothies Case l. 2. fo 79. b. Seignieur Cromwels Case 21 E. 4. 41. 2 E. 4. 3 4. 4 E. 4. 4. b. 26 H. 8. 9. b. 6. When the Obligor or Feoffor is to infeoff a stranger as hath been said and when a stranger is to infeoff the Feoffee or Obligee As if A. infeoff of black acre upon Condition that if C. infeoff B. of white acre A. shall re-enter C. hath time during his life if B. doth not hasten it c. and so of an Obligation fo 108. b. 7. But in some cases albeit the Condition be collateral and is to be performed to the Obligee and no time limited yet in respect of the nature of the thing the Obligor shall not have time during his life to performe it As if the Condition of an Obligation be To grant an Annuity to the Obligee during his life payable at Easter this Annuity must be granted before Easter c. Dyer 14 Eliz. 311. 8. When the Obligor Feoffor or Feoffee or a stranger c. is to do a sole act as to go to Rome c. they have time during life c. The Executor c. may when a man is limited pay the money vide S. 334. l. 5. fo 96 97. Goodales Case If I infeoff one in fee upon Condition to make a gift in tail to I.S. and he refuseth it and a tender and refusal is made there the Feoffor shall not re-enter for it was intended that the Feoffee should have an estate in the land And so it is if the Condition be That the Feoffee shall grant a rent charge to a stranger 2 E. 4. Enter Congeable 25. But otherwise it is if the Condition be to infeoff I. S. and his heirs and a tender and refusal is made c. 19 H. 6. 34. When the Executors make a tender and the Feoffee refuseth albeit the heir who hath a Title of Entry be a third person yet is he no stranger but he and the Executors also an◠privies in Law Concerning goods and chattels either in possession or in action the Executor doth more actually represent the person of the Testator then the heir doth the person of the Ancestor For if a man bindeth himself his Executors are bound though they be not named but so it is not of the heir Sect. 338 339. En touts cases de Condition de payment de certain fum en gross touchant terres c. si loial tender soit unsoits refuse celuy que doit le tender mony ē de ceo assouth discharge pur touts temps apres i. e. for ever to make any other tender but if it were a duty before though the feoffor enter by force of the Condition yet the debt or duty remaineth As if A. borrow 100 l. of B. and after mortgage lands to B. and he refuse it A. may enter c. and the land is freed for ever of the Condition but yet the debt may be recovered by action c. But if A. without any loan debt or duty preceding infeoff B. of land upon Condition for the payment of 100 l. to B. in nature of a gratuity or gift in that case if tender be made and he refuse B. hath no remedy therefore fol. 209. b. Vide Libr. c. The Agreement precedent doth guide the payment subsequent and the payment ought to be real and not in shew or appearance 18 E. 4. 18. 19 H. 6. 54. 20 E. 3. Account pag. 70. If the Condition upon Mortgage be To pay to the Mortgagee or his heirs the money c. and before the day of payment the Mortgagee dyeth the Feoffee cannot pay the money to the Executors c. for In hoc casu designatio unius personae est exclusio alterius expressum facit cessare tacitum Lib. 5. c. Dyer 2 Eliz. 181. 44 E. 3. 1. b. fo If a man make a Feoffment in fee upon Condition That if the Feoffor pay to the Feoffee his heirs or assignes 20 l. before such a Feast and before the Feast the Feoffee maketh his Executors and dyeth the Feoffor ought to pay the money to the heir and not to the Executors for the Executors in this case are no Assignees in Law And the Feoffee hath an estate in the land which he may assign over and where there may be Assignees in Deed the Law shall never seek out or appoint any assigns in Law 27 H. 8. 2. 4 Mar. 140. a. M. 23 24. El. in Curia Wardorum inter Randall Browne 2 El. Dyer 181. Pl. Com. Chapmans Case 186. 188. 17 Ass Pl. 2. Sect. 240. Comment ascun ont dit que le feoffor ē tenus de tender c. sur la terre tenus in Mortgage pur ceo que le condition ē dependant sur le terre uncore ceo ne prove que le feasans de le condition deste performe covient erre fait sur la terre c. lestate de la terre ē dependant sur la condition c. The money is a sum in grosse and collateral to the Title of the land and the Feoffor must tender the money to the person of the Feoffee and it is not sufficient for him ro tender it upon the land 8 E. 4. 4. 14. 11 H. 4. 62. 17 Ass p. 2. 21 H. 7. Kelway 74. 16 Eliz. Dyer 327. l. 4. f. 73. Boroughs Case 21 E. 4. 6. Otherwise it is of a rent that issueth out of the land 8 E. 4. 2. But a corporal service is issuing out of land as Homage c. must be done to the person of the Lord 21 Ass 3. 7 E. 4. 4. 21 E. 4. 17. 19 Eliz. Dyer 354. lib. 8. fo 92. Frances Case If A. be bound to B. with condition that C. shall infeoff D. on such a day C. must give notice to D. thereof and request him to be on the land at the day to receive the Feoffment and he is bound to seek D. and to give him notice 2 E. 4. 3. 4. Sect. 341 342. Est diversity quant al tender de le rent que ē issuant horse de la terre
in fee upon condition that they shall not alien to some intent this is good and to some intent it is void for to restrain an alienation by Feoffment or alienation by Deed it is good because such an alienation is tortious and voidable but to restrein their alienation by fine is repugnant and void because it is lawfull and unavoidable Whatsoever is prohibited by the intent of any Act of Parliament may be prohibited by condition Sect. 363. A man makes a gift in tail to A. the remainder to him and to his heirs upon condition that he shall not alien some are of opinion that this is a good condition and shall defeat the alienation for the estate tail onely and leave the fee simple in the alienee for that the condition in Law extends onely to the estate tail 11 H. 7. 6. c. fo 224. a. But a gift in tail may be made upon condition that tenant in tail c. may alien for the profit of his Issues Sect. 364. * Nota. Home poit doner terres en taile sur condition que si le tennant en le taile ou ses heires alienont en fee ou en taile ou pur terme daut vie c. auxy que si touts issues veignants del Tenant in taile soient morts sans issue que donques bien lirroit al donor a ses heires d' enter c. partiel voy le droit del taile poit ereÌ„ solve apres discontent in al issue en le taile si ass ' y soit issint que per voy dentre del donor ou de ses heirs le taile ne serra my defeat per tiel condition Littleton to make the condition good addeth an alienation which amounted to a wrong and he restraineth not the alienation onely but added and die without issue to the end that the right of the estate in tail might be preserved and not defeated by the condition but might be recovered again by the issue in tail in a Formedon Si plures conditiones ascriptae fuerunt donationi conjunctim omnibus eÌ„ parendum ad veritatem copulative requiritur quod utraque pars sit vera Brac. l. 2. fo 19. Pl. 76. Wimbesh case and 107. Fulmerstons case But si divisim cuilibet vel alteri eorum satis eÌ„ obtemperare in disjunct sufficit alteram partem esse veram If a man make a Lease to the husband and wife for 21. yeares if the husband and wife or any child between them so long shall live and then the wife die without issue the Lease shall continue for the disjunctive referreth to the whole Pl. 30 El. Com. ban Baldwin and Cock Trupennies case and so it is if any use be limited to certain persons untill A. shall come from beyond Sea and attain unto his full age or die if he doth beyond Sea come from or attain to his full age the use doth cease H. 35 El. Trans per sur Mordant ban R. Sect. 365. Il eÌ„ common erudit que home per plee ne defeatera asc ' estate de franktenement per force dasc ' tiel condition Sin que il merâ—â—â— le propoâ—e de condition en escript c. Si non en speciall cases c. Mes de chattels reals sicome de Lease pur ans auterment est issint eÌ„ de dones grants de chattels personals and contracts personals c. Be the action reall personall or mixt if a condition be to defeat a freehold it is Reg. true that a Deed must be shewed forth in Court. Because every Deed ought to approve it self that it be sufficient in Law and that the Court shall adjudge and secondly be proved by others and this concerns matters of Fact as sealing and delivery and belongs to the jurors 9 E. 4. 25 26. 14 H. 8. 22. b. 28 Ass pl. 1. l. 10. fo 92. Dr Layfields case 11 H. 7. 22. b. Upon a gift in tail or a Lease for life a rent may be reserved without deed but a condition with re-entry cannot be reserved without deed in this case 45 E. 3. 21. a. By the Statute of 3 and 4 E. 6. ca. 4. and 13 El. ca. 6. the exemplification or constat under the great Seal of the inrolment of any Letters Patents made since the 4 of Feb. 27 H. 8. or after to be made shall be sufficient to be pleaded and shewed forth in Court as well against the King as any other person by the Patentees themselves c. Dyer 1 El. 167. 12 H. 7. 12. b. A constat Inspeximus c. ought to be had onely of the inrolment of Record and no deed c. can be inrolled unlesse it be duly and lawfully acknowledged Lib. 8. fo 8. The Princes case l. 5. fo 52 53. Pages case If Gardian in Chivalry in right of the heir enter for a condition broken he shall plead the state upon condition without shewing of any Deed because his interest is created by the Law and so it is of a Tenant by State Merch. c. and of Tenant in Dower c. 20 H. 7. 5. 35 H. 6. Manors des faits 11. b. But the Lord by escheat albeit his estate be created by law shall not plead condition to defeat a freehold without shewing of it because the Deed doth belong unto him A Tenant by the Curtesie shall not plead a condition made by his wife c. without shewing the Deed. But lessees for years and all others that claim by any conveiance from the party of justifie as servant by commandment c. must shew the Deed 14 H. 8. 8. Pl. 149. R. brought an ejection firme against E. of the Manor of D. which he had for years of the demise of C. c. E. maintained his entry c. and shewed no deed and the plea was good because the thing was executed Vide le case fo 226. a. 44 E. 3. 22. Nota the defendant being issue in tail was remitted to the estate tail If land be morgaged upon condition and the morgagee letteth the lands for years reserving a rent the condition is performed the morgagor reenters in an act of debt brought for the rent the lessee shall plead the condition and reentry without shewing forth the Deed. 45 E. 3. 68. Finch 10 H. 4. 9. b. If a woman give land to a man and his heirs by deed or without generally she may in pleading averre the same to bee causa matrim prolocuti albeit she hath nothing in writing to prove the same 9 E. 4. 25 26. 14 H. 8. 22. b. 11 H. 7. 22. b. F.N.B. 205. b. Sect. 366. Item Comt que home ne poit en asc ' act ' pleaded un condition que concerne le franktenement sans manurer escript de ceo encore poit home estre aid sur tiel condition per verdict de 12. homes prise â—large en Ass de no. diss c. Vide S. c. Judicium est quasi juris
entry il covient que celuy que mor ' seisee ad fee franktenement al temps de son morant on fee tail franktenement al temps c. fo 239. b. Note the law doth ever give great respect to the estate of Freehold though it be but for term of life A descent in the collaterall line doth take away an entry as well as in the lineall Sect. 390. A dying seised and a descent and not a dying seised and an Escheat doth take away the entry for the discent is the worthier Title But if the disseisor die seised and the heir of the disseisor die without heir the disseisee cannot enter upon the Lord by Escheat So as there is a diversity as touching the discent when after a discent cast the issue in tail dieth without issue and when after a discent cast the heir in feesimple dieth without heir for he in the reversion or remainder upon a state Tail claimeth in above the state Tail but the Lord by Escheat claimeth in under the heir in fee simple 37 H. 6. 1. 9 H. 7. 24. b. Sect. 391 392. Note a diversity between a Right for which the Law giveth a remedy by action and a Title for which the Law giveth no remedy by action but by entry onely For example The feoffor upon * this case in Condition hath a Right to the land * and therefore his entry may be taken away because he may recover his right by action but the Feoffor or Donor that hath but a condition his Title of Entry cannot be taken away by any discent because he hath no remedy by action to recover the land And therefore if a discent should take away his entry it should barre him for ever 3. 3 Ass 11. 24. 21. H. 6. 17. Also he that hath a Title to enter upon a Mortmain shall not be barred by a discent Br. Mortmain 6. 47 E. 3. 11. And so it is where a woman hath a Title to enter Causa matr praelocuti 40 Ass 13. And so it is where the Freehold in Law is cast upon the Devisee and the heir before any entry made by the Devisee enter and dyeth seised And so it is of him that entreth for consent to a Ravishment P. 32 El. Com. Ban. Martin Trotte of London 41 E. 3. 14. per Finchden P. 1 Ja. Com. Ban. To this may be added as a like case the Kings Patentee before he enter c. Another reason wherefore a discent shall not take away the entry of him that hath a Title to enter by force of a Condition c. is for that the Condition remains in the same essence that it was in at the time of the creation of it and cannot be devested or put out of possession as Lands and Tenements may Sect. 393. 8 E. 2. Enter 75. 24 E. 3. 40. 38 Ass p. 26. 11 H. 4. 11. 7 H. 5. 3. 36 H. 6. Dower 30. fo 241. a. le heire endow la feme de le disseisor c. If there be Lord Mesne and Tenant the Mesne doth grant to the Tenant to acquit him against the Lord and his heirs the Lord dyes his wife hath the Seigniory assigned to her for her Dower and distraineth the Tenant albeit the grant was to acquit him against the Lord and his heirs onely yet because she continued the estate of her husband and the reversion remained in the heir this grant of Acquittal did extend to the wife 31 E. 1. Mesne 55. Nota c. If after the dying seised of the disseisor the disseisee abate against whom the wife of the disseisor recover by confession in a Writ of Dower in that case though the discent be avoided yet the disseisee shall not enter upon the Tenant in Dower because the recovery was against himself but if he had assigned Dower to her in paiis some say he should enter upon her Donor in Tail reserves 20 s. rent and dyes the Donee takes wife and dyes without issue the heir of the Donor enters and endows the wife she is so in of the estate of her husband that albeit the estate Tail be spent and the rent reserved thereupon determined yet after she be endowed she shall be attendant to the heir in respect of the said rent And so it is of Lord and Tenant the wife that is endowed shall be attendant for the due services but if any services be incroached albeit that incroachment shall binde the heir yet the wife shall be Contributory but for the services of right due 10 E. 3. 26. Nota albeit the disseisor after a discent taketh to him but an estate for life yet when the disseisee doth enter upon him he shall thereby devest the reversion for a Freehold is that whereupon a Praecipe doth lie and therefore the entry of the disseisee is as available in Law as if he had recovered it in a Praecipe And so it is if a disseisor make a lease for life and grant the reversion to the King c. 25 E. 3. 48. Pl. C. 553. Vide S. 302 388. Sect. 394. Si un feme seisie de terra en fee dont jeo aye droit title dent prent baron ont issue enter eux puis la feme devie seisie apres le baron devie lissue enter c. en cē case jeo poy enter sur le poss lissue pur ceo que lissue ne vient a les tenements immediate par discent apres la mort sa mere c. eins per le mort del pier 9 H. 7. 24. 37 H. 6. 1. An immediate discent may take away an entry for a time and immediately may be avoided by matter ex post facto But if a dying seised take not away the entry of him that right hath at the time of the discent it shall not by any matter ex post facto take away his entry If a disseisor make a gift in Tail the remainder in fee and the donee dyeth without issue leaving his wife privement enceint with a Son and be in the remainder enters and after the Son is born who entred into the land this discent shall not take away the entry of the disseisee because the issue cometh not to the lands immediately by discent c. Sect. 395. Disseisor enfeoff son quier en fee le pier mor. seisie c. cēne tolla entry c. Reg. it is true that albeit a discent be cast and the entry of the disseisee taken away yet if the disseisor commeth to the land again either by discent or purchase of any estate of freehold which is implyed in the c. the disseisee may enter upon him or have his Assize against him as if no discent or mean Conveyance had been quia particeps criminis 15 E. 4. 23. a. 11 E. 4. 2. 18 E. 4. 25. a. 33 H. 6. 5. b. 34 H. 6. 11. 12 H. 8. 9. 24 H. 8. 3. 9. 18 H. 8. 5. 5 H. 7. 29. Ass
use of the infant for the State is voidable But where an infant or a man of full age is disseised an entry by a stranger of his own head is good and vesteth presently the estare in the Infant or other disseisee So it is if Tenant for life make a Feoffment in fee an estranger may enter for a forfeiture in the name of him in the reversion and thereby the estate shall be vested in him P 39. El. Com Banco per Cur. 10. H 1. 16 7. E 3. 69 6. E 3. 6â— peâ— Thorp If the Mulier enter upon the Bastard and the Bastard recover the land in an Ass against the Mulier now is the interruption avoided and if the bastard die seised this shall barre the Mulier The possession of the King when he hath no cause of seisure shall be adjudged the possession of him for whose cause he seised 2. Ass 9. fo 245. b. Vide c. And note that the bastard must enter in vacuam poss and continue during his life without interruption made by the Mulier Acts without words may make an entry but not words without an act viz. an entry c. Pl. 91. Parson de Honiâ—awes case 35. H 6. 24. 1 E 3. 21 E 4. 3 21. E 4. 5. 5. E 60 21. H. 6. 9. Sect. 402. Null laches ser adjudge en un Infant lou discent è eschue durant son nonage 33. E 3. qu. imp 46. But in some other cases Laches shall prejudice an infant as if he present not to a Church within six moneths for the Law respecteth more the priviledge of the Church that the cure be served than the priviledge of Infancy and so the publike repose of the Realm concerning mens Freeholds and inheritance shall be preferred before the priviledge c. in case of a Fine where the time begins in the time of the Ancestor Pl. 372. So non-claime of a villeine of an infant by a year and a day who hath fled into Ancient demesne shall take away the seisure of the infant and if an infant bring not an appeal of the death of his Ancestors within a year and a day he is barred of his appeal for ever for the law respects more liberty and life than the priviledge of infancy and note that Littleton putteth his case that an Infant shall enter upon a discent when a stranger dyeth seised but he put it not so before in the case of the Bastardeigne B. Tenant in taile infeoffes A. in fee A. hath issue within age and dyeth B. abateth and dieth seised the issue of A. being still being within age this discent shall bind the infant for the issue in taile is remitted and the Law doth more respect ancient right in this case than the priviledge of an infant that had but a defeasible estate 11. E. 4. 1. 2. F.N.B. 35. 35 m And it is said if the Kâ—ng dieseised of lands and the land discend to his successor that this shall bind an Infant for that the priviledge of an infant in this case hold not against the King 35. H. 6. 60. Fo. 246. a. Sect. 403. Si bar feme come en droit sa feme ont title droit denter c. Tenant delterre mor. seisie c. These words are generall but are particularly to be understood viz. when the wrong was donâ— to the wife during the Coverture for if a feme sole be seised of lands in fee and is disseised and then taketh husband in this case the husband and wife as in the right of the wife have right to enter yet the dying seised of the disseisor in that case shall take away the entry of the wife after the death of her husband and the reason is as wel for that she her self when she was sâ—â—e might have entred recontinued the pâ—ssession as also it shall be accâ—unted her folly that she would take such a husband which would not enter before the discent 9 H 7. 24. a. 2 E 4 25. 7 E. 4. 7. b. 15. E. 4 Discent 30. Negligentia semper habet infortunium comitem Laches le baron ne turnara la feme c. al prejudice Note a diversity albeit reg No Laches shall be accounted in infants or feme Coverts as is aforesaid for not entry or claime to avoid discents yet Laches shall be accounted in them for no performance of a condition anexed to an estate of land For if a feme be infeoffed either before or after marriage reserving a rent and for default of payment a re-entry Iâ— that case the Laches of the baron shall disherit the wife forever 20. H. 6. 28. b. And so it is of an Infant his Laches for not performing of a condition anexed to a State either made to his Ancestor or himselfe shall bar him of the right of the Land for ever 31. Ass p. 17. 42. E. 31. Pl Com. 55. 10. H. 7. 13. H. 7. 35. H. 6. 41. Pl. 136. b. Pleta lib. 2. ca. 50. If a man make a Feoffment in fee to another reserving a rent and if he pay not the rent within a month that he shal double the rent and the Feofee dyeth his heire within age the Infant payeth not the rent he shall not by this Laches forfeit any thing But otherwise it is of a feme covert and the reason of this diversity is for that the Infant is provided for by the Statute Non current usurae contra aliquem infra aetatem existen c. Stat. Mert. ca 5 But that Statute doth not extend to a condition of a re-entry which the Infant ought to performe c. Sect 405 If an ideot make a Feoffment in fee he shall in pleading never avoid it c. But upon an office found for the King the King shall avoid the Feoffment for the benefit of the Ideot whose custody the Law giveth to the King 3â— H 42 b Abb 5 E 3. â—0 Brit. c 28 fo â—6 25 Ass p 4 35. Ass p 10 32. E 3 scire fac 1â—0 Stanf. pr â—4 Vpon all which books there have been four severall opinions concerning the alienation or other act of a man that is non compos mentis â—c 1. That he may avoid his own act by entry or plea. 2. That he may avoid it by writ and not by plea. 3. That he may avoid it either by plea or by writ and of this opâ—nion is Fitzh in his N B 202. And 4. Littleton here is of opinion that neither by plea not by writ nor otherwise he himselfe shall avoid it but â—is heire in respect his Anc. was non comp c shall avoid it by entry plea or writ for it is a maxime of the Common Lawes that the party shall not disable himselfe Lib. â— fo 126 127. Beverlâ—es case But this holdeth onely in civill causes for in criminal causes as felony c. the act of wrong of a mad man shall not be imputed to him for that in those causes actus non
Case lib. fo 252 b. But if a disseiser had letten severally three acres to three persons for years there the entry upon of the the lessees in name of all the three acres shall recontinue and revest all the three acres in the disseisee for that the disseisee might have had one Assize against the disseisor because he remained Tenant of the Freehold for all the three acres 7 Ass 18. 12 E. 4. 10 36 H 6. 27. 32 Ass p 1 If I infeoffe one of one acre of ground upon Condition and at another time I infeâ—ffe the same man of another acre in the same county upon Condition also and both the Conditions are broken an entry into one acre in the name of both is not sufficient for that I have no right to the land nor action to recover the same but a bare Title But an entry into one part of the land in the name of all the land subject to one Condition is good although the parcels bee several and in severall Towns And so nâ—â—e a diversity between several rights of entry and several Titles of entry by force of a Condition 11 H. 7. 25. Dyer 16 El. 33â— Ennosme de tout c. dont il ad Title d'entry here in a large sence Title of entry is taken for a Right of entry If I bâ—iâ—g an Assize of two acres if I enter into one hanging the Writ albeit it shall revest that onely acre yet the Writ shall abate 5 H. 7 7. 4 E 4 19. 12 E 9 11. a Sect. 418 Nota A man may make a feoffment of lands in another County and make livery of seisin within the view albeit he might peacably enter and make actual livery and so may he shew the Recognitors in an Assize the view of lands in another County But a man cannot make an entry into lands within the view where he may enter without any fear for it is one thing to invest and another to devest 3â— E 3 11 38 Ass 3 fo 253 a If livery of seisin be made of parcel of the Tenements c. in one Town in the name of all c. All the said Tenements c. pass by force of the said livery c. Agr. à minore ad majus if it be so in a Feoffment passing a new right à multo fortiori it is for the restitution of an ancient right as the worthier and more respected in Law which holdeth Affirmative Vide S. 438. Sect. 419 Fear of imprisonment sufficeth to avoid a Bond or a deed for the Law hath a special regard to the safety and liberty of a man But note a diversity between a Claim or an Entry into Land and the Avoidance of an act or deed for fear of Battery 4 E 4 7. 11 H 4 6 8 Ass 25 vide S 434 10 2 cap 49. 13 H â— Dures 2â— If a man hath Title to enter into any Lands or Tenements if he dares not enter c. for doubt of maiming c. if hee goeth and approach as near to the Tenements as he dare for such doubt and by word claim the lands to be his this entry in Law is as forcible iâ— Law as an entry in Deed and upon such an entry in Law an Assiâ—e doth lie as well as upon an entry in Deed and such an entry in Law shall avoid a Warranty c. vide S 378. 11 H 6 5â— But note a diversity here between an entry in Law and an entry in Deed for that aâ—â—ontinual Claim of the disseisee being an entry in Law shall vest the possession and seisin in him for his advantage but not for his disadvantage And therefore if the dissâ—isee bring an Assize and hanging the Assize he make Continual Claim this shall not abate the Assize but he shall recover damages from the beginning but otherwise it is of an entry in Deed. Vide S 442. Pl. Com. 93. Parson of Hony lanes Case Arg. ab autor ' est fortissimum in lege 38 Ass p 13 Sect 421 422. Where a Continual Claim shall devest an estate in any other person in any lands or tenements there he that maketh the Claim ought to enter into the land or some part thereof But where the Claim is to briâ—g him that maketh it into actual possession there a Claim within the view sufficeth as upon a discent the heir having the Freehold in Law may claim land within the view to bring himselfe into actual possession and in that sense is the opinion of Hull and the Court to be intended 9 H 4 5 c. But yet the entry in to some parcel in the name of the residue is the surest way vide S. 177. 11 H 6. accord with Liâ—tleton 51. At the Common Law upon a fine or fâ—â—ll judgement given in a writ of right the party grieved had a yeare and a day to make his claime So the wife or heire hath a yeare and a day to bring an appeale of death c. After judgement given in a â—eaâ—â— action the plâ—iâ—tiffe within the yeare and day may have habere sac sâ—siâ—am and in an action of debt c. a Capias fieri fac or a Lâ—vari facias A protection shall be allowed but for a year and a day and no longer and in many other casâ— Vid. S. 385. 426. 14. H 4. 36. 7. E. 3. 37. Pl. 356. 357. 367 Brit. fo 45. b. Sect. 423 424. 426. Il covient a luy que fist claime c. de faire un cl ' deins chese ' an jour prochein apres chesc ' claime fait durant la vie son adversarie dâ—â—â—uâ—s a quecunque temps que son Adversary mor. Seisee son â—ntry ne ser toll per nul tiel dis cent Brit. fo 209. Dy. 17. Eli. 345. Si disseisor mor. Seiseâ— dein l'an jour c. per que les tenements discend a son heire â—n ceÌ„ case l'enter le disseisee eÌ„ toll car l'an le jour que aâ—droit le lessee en tiel case ne serre pris de temps de title dent a luy accrue mes tautsolment del temps de claime per luy fait en le maner avantd pur cest causeil serre boâ—e pur tiel disseisee pur faire son claâ—me en auxi breve temps queil puissoit apres le disseisin c. This in case of a disseisor is now holpen by the Statute of 37. H 8. ca. 33. For if the disseisor dye seised within five years after the disseisin though there be no cont claim made it â—â—all not take away the entry of the disseisee but after the five years there must be such continuall claime as was at the Common Law But that Statute extended not to any Feoffee or donee of the disseisor immediate or mediate but they â—maine still at the common Law Vi. S. 385. 422. Sect. 428 429. Item sicome eÌ„ dit en les cases mises lou home ad title dent pur caus dun
the Confirmation extendeth not to the rent suspended otherwise it is of a release in both cases Est bone sure chose en chesc ' confirmation d'aver ceux parolls a aver tener les tenements c. en fee ou en fee tail ou pur terme de vie ou pur terme dans solonque eo que le case est c. Note the diversity between a Confirmation of the estate for life in the land to have and to hold the said state in the land to him and his heirs this cannot enlarge his estate for his estate being but for life cannot be extended to his heirs But in that case if he confirme the state for life in the land in the premises of the Deed and the habendum is to have and to hold the land to him and his heirs this shall create in him a fee simple 18 E. 3. 40. Sect. 525. If a man letteth land to the husband and wife to have and to hold the one moity to the husband for terme of his life and the other moity to the wife for her life and the lessor confirm the estate of them both in the land to have and to hold to them and to their heirs by this Confirmation as to the moity of the husband it enureth only to the husband and his heirs for the wife had nothing in that moity but as to the moity of the wife they are joyntenants for the husband hath such an estate in his wifes moity in her right as is capable of a Confirmation But if such a lease for life be made to two men by several moities and the lessor confirm their estates in the land to have and to hold to them and to their heirs they are Tenants in Common of the Inheritance for reg the Confirmation shall enure according to the quality and nature of the estate which it doth enlarge and encrease 18 Ass p. 3. 18 E. 3. Confirmation 17. fol. 299. b. If a lease for life be made to A. the remainder to B. for life and the lessor confirm c. A. taketh one moity to him and his heirs and therefore of the one moity he is seised for life the remainder to B. for life and then to him and his heirs of the other moity A. â—is seised for life the immediate inheritance to B. and his heirs because as to the moity which B. takes the same is executed 39 H. 6. 9 If lands be given to two men and to the heirs of their two bodies begotten and the Donor confirm their two estates in the land to have and to hold the land to them two and to their heirs in this case some are of opinion that they shall be joyntenants of the fee simple because the Donees were jointenants for life and the Confirmation must enure according to the estate which they have in possession and that was joynt But others hold the contrary For 1. They say that the Donees have to some purposes severall inheritances executed though between the Donees survivor shall hold for their lives 2. They say that when the whole estate which comprehended severall inheritances is confirmed the Confirmation must enure according to the severall inheritances which is the greater and most perdurable estate and therefore that the Donees shall be Tenants in Common of the inheritance in this case Albeit in this case of Littleton the husband by the Confirmation gaineth an estate for life in remainder yet if the husband doth waste an action of Waste shall lie against him and his wife notwithstanding the mean remainder because the husband himself committeth the wast and doth the wrong 17 E. 3. 68. b. Sir Edward Caries Case lib. 5. fo 76. b. Sect. 526 527. Fol. 300. a. Note a diversity between a lease for life and a lease for years made to a feme covert for her estate of Freehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Chattels reals as leases for years Wardships c. are not given to the husband absolutely as all Chattels personals are by the intermarriage but conditionally if the husband happen to survive her and he hath power to alien them at his pleasure but in the mean time the husband is possessed of the Chattels reall in her right 5 E 3. 17. b. Pl. Com. 418. b. 24. H. 4. 12. Pl. Com. Dame Hales Case 50 Ass p. 15. 4 H. 6. 5. 7 H. 6. 1. 21 H. 7. 29. 21 E. 4. 40. 26 H. 8. 7. Such a thing as I may defeat by my Entry I may make good by my Confirmation 11 H 7. 28. 3 H 4. 10. If the feoffee upon condition grant a rent charge en fee and the feoffor confirm it and after the Condition is broken and the feoffor enter he shall not avoid the rent charge And so it is if the heir of the diffeisor grant a rent charge and the disseisee confirmeth it and after recover the Land he shall not avoid the rent And yet in neither of these cases his entry was congeable at the time of the Confirmation Lib. 1. fo 147. c. Anne Mayowes case Sect. 528. Fol. 300. b. Persona is said to be seised in jure Ecclesiae and the Law had an excellent end herein viz. that in his person the Church might sue for and defend her right and also be sued by any that had an elder and better right and when the Church is full it is said to be plena consulta of such a one person thereof that may vicem seu personam gerere ejusdem Ecclesiae Brit. fol. 234. b. F.N. 48. A. Parson of D. is Patron of the Church of S. as belonging to his Church and presents B. who by consent of A. and of the Ordinary grant a rent charge out of the Gleab this is not good to make the rent charge perpetuall without the assent of the Patron of A. no more then the assent of the Bishop who is Patron without the Dean or Chapter or no more then the assent of the Patron being Tenant in Tail or for life as Littleton saith And Littleton here saith that the Patron that confirms must have a fee simple meaning to make the charge perpetuall And Littleton after saith that in the case of the Parson the fee is in abeiance and seeing the consent of the Patron is in respect of his interest as heir it appeareth by Littleton he may consent upon Condition otherwise it is of an attornment because it is a bare assent Also if the state of the Patron be conditionall and he confirmeth and after the Condition is broken his Confirmation is void Lib. 2. 39 24 l. 1. 153 l. 4 23 24. l. 5. 31. 81. l. 10. 6. l. 11. 19. l. 6. 34. Note a diversity between a sole Corporation as Parson Prebend Vicar c. that have not the absolute fee in them for to their grants
attorn saving his Acquitall and the Plaintiffe acknowledge it and thereupon Tenant attorn Tenant for life dyeth in this case albeit Reg. the Attornment to the Tenant for life is an Attornment to him in remainder yet in this case he in the remainder shall not distrain till he hath acknowledged the Acquitall which must be in a per que servit brought by him against the Tenant vide S. 557. Sect. 583. Fol. 321. a. Note a diversity between an act in Law that giveth one inheritance in lieu of another and an act in Law that conveyeth the estate of the Conusee only Of the former Littleton here putteth an Example of the escheat of the Mesnaâ—ty which drowneth the Seigniory Paramount and therefore reason would that the Lord by this act in Law should have as much benefit of the Mesnalty escheated as he had of the Seigniory that was drowned and he hath no remedy to compell the Tenant to Attornment Also the Lord cometh to the Mesnalty by a Seigniory Paramount and therefore needeth no Attornment As if lessee for life be of a Manor and he surrender his estate to the lessor there needs no Attornment of the Tenants because the lessor is in by a Title Paramount Temps E. 2. Attor 18. 39. H. 38. per Prifot lib. 6. f. 68. Sir M. Finches Case 5 H. 7. 18. per Cur. But if the Conusee dye and the Law casteth his Seigniory upon his heir by Discent he shall not be in any better estate then his ancestor was because he claimeth as heir meerly by the Conusee Sect. 584. Fol. 321. b. vide c. If a man make a lease for life or years and after levy a Fine to A. to the use of B. and his heirs B shall distrain and have an action of Waste albeit the Conusee never had any Attornment because the reversion is vested in him by force of the Statute and hath no remedy to compell the lessee to attorn 27 H. 8. c. 10. Sect. 585. 586. Fol. 322. a.b. Here doth Littleton put a case where a man may have a Seignory rent reversion or remainder meerly by the act of the party and may distrain and have any action without any Attornment and that is by devise of Lands deviseable by Custom when Littleton wrote by the last Will aad Testament of the owner 34 H. 6. 6. 5 H. 7. 18 F N B. 121. n. Omne Testamentum morte consummatum ultima voluntas testatoris est perimplenda secundum veraÌ„ intentionem suam reipublicae interest suprema hominum testamenta rata haberi The Will of the Devisor expressed by his Testament shall be performed according to the intent of the Devisor and it shall not lie in the power of the Tenant or lessee to frustrate the Will of the Devisor by denying his Attornment vide S. 167. Brit. fol. 78. 212. b. Sect. 587 588 589. Fol. 323. a b The disseisor cannot disseise the Lord of the Rents or Services without the Attornment of the Tenants to the disseisor for seeing an Attornment is requisite to a feoffment and other lawfull Conveyances A fortiori a disseisor or other wrong doer shall not gain them without Attornment The like Law is of an Abator and an Intrudor But albeit the disseisor hath once gotten the Attornment of the Tenants and payment of their rents yet may they refuse afterwards for the avoiding of their charge And here the Attornment of the Tenant of a Manor to a disseisor of the Demesns shall dispossess the Lord of the rents and services parcell of the Manor because Demesns Rents Services make but one intire Manor and the Demesns are the principall but otherwise it is of rents and services in gross 6 H. 7. 14. 11 H. 7. 28. 11 H. 4. 14. a.b. For a man cannot be disseised of a rent service in gross rent charge or rent seck by Attornment or payment of the rent to a stranger but at his election for the Rule of Law is Nemo redditum alterius invito Domino percipere aut possidere potest vide S. 237 238 239 240. What be disseisins of rent services rent charge and rent secks and payment to a stranger is none of them but at the Lords election 24 E. 3. 4. 1 E 5. 5. A discent of a rent in gross bindeth not the right owner but that he may distrain albeit he admitted himself out of possession and determined his election as by bringing of an Assize c. 5 E. 4. 1. 23 H. 30. Ass 439. 16 Ass p. 15. *** CHAP. XI Of Discontinuance Sect. 592. Fol. 325. a. DIscontinuare nihil aliud significat quà m intermittere desuescere interrumpere 8 H. 4. 8. b. 11 H. 4. 85. b. A discontinuance of estates in Lands or Tenements is properly in legall understanding an alienation made or suffered by Tenant in Taile or by any that is seised in auter debit whereby the issue in Tail or the heir or successor or those in reversion or remainder are driven to their action and cannot enter I have added properly by good warrant of our Author himself for Sect. 470. he useth Discontinuance for a devesting or displacing of a reversion though the entry be not taken away Also vide the Stature of 1 E. 6. c. 7. 31. Eliz. c. 2. lib. 7. fo 30 31. le case de Discontin de processe When Littleton wrote the estate in Lands and Tenemens might have been discontinued five maner of ways viz. By Feoffment by Fine by Release with Warranty Confirmation with Warranty and by suffering of a Recovery of a Praecipe quod red and this was to the prejudice of five maner of persons viz. of Wives of Heirs of Successors of those in Reversion and of those in Remainder But for Wives and their Heirs and for Successors the Law is altered by Acts of Parliament since Littleton wrote Sect. 593. Fol. 325. b. Nota that in Law the Covent albeit they be Regular and dead persons in Law yet are they said in Law to be Capitulum to the Abbot as well as the Dean and Chapter that be Secular to the Bishop But it is to be observed That a sole Body Politick that hath the absolute right in them as an Abbot Bishop c. may make a discontinuance but a Corporation aggregate of many as Dean and Chapter Warden and Chaplains c. cannot make any discent for if any joyn the grant is good and if the Dean Warden c. make it alone where the Body is aggregate of many it is void and worketh a disseisin 21 E. 4. 86. vide Sect. 528 648. By the Statute of 1 Eliz. c. 10. 1 Iac. c. 3. Bishops and all other Ecclesiasticall persons are disabled to alien or discontinue any of their Ecclesiasticall Livings Sect. 594. Fo. 326. a. By the pur vieu of the Statute of 32 H. 8. c. 28. the wife and her heirs after the decease of her husband may enter into the Lands and Tenements of the
wife notwithstanding the alienation of her husband Dyer 4 5. P. M. 146. 3 El. Dyer 191. l. 8. f. 71 72. Greveleys Case If the husband levy a Fine with Proclamations and dye the wife must enter or avoid the estate of the Conusee within five years or else she is barred for ever by the Statute of 4 H 7. for the Statute of 32 H 8. doth help the Discontinuancy but not the barre and the Statute speaketh of a Fine and not of a Fine with Proclamations 6 E 6. Dyer 72. b. 4 H 7. c. 24. Feme Tenant in Tail taketh husband the husband maketh a feoffment in fee the wife before entry dyeth without issue he in the reversion or remainder may enter For 1. The reversion or remainder cannot be discontinued in this case because the estate Tail is not discontinued 2. The words of the Statute be Shall not be prejudiciall c. to the wife or her heirs or such as shall have Right Title or Interrest by the death of such wife but the same wife and her heirs c. shall or lawfully may enter c. By which words the entry of him in the reversion or remainder in that case is preserved The husband is Tenant in Tail the remainder to the wife in Tail the husband make a feoffment in fee by this the husband by the Common Law did only discontinue his own Estate taile but his wifes remainder but at this day after the death of the husband without issue the wife may enter by the said action of 32 H. 8. If the husband hath issue and maketh a feoffment of his wifes land and the wife dyeth the heire of the wife shall not enter during the husbands life neither by the Common law nor by the Statute 8 E. 2 tit cui in vita 26 34. E. 1. ibid. 30. 10 E. 3. 12. Dy. 21. Eliz. 363. Sect. 565. Fo. 326. b. By the Statute of 11 H. 7. ca. 20. If the woman hath any Estate in tail joyntly with her husband or only to her self or to her use in any lands or haereditaments of the inheritance or purchase of her husband or given to the husband and wife in taile by any of the Ancestors of the husband or by any other person seised to the use of the husband or his Ancestors and shall hereafter being sole or with any other after taken husband discontinue c. the same every such discontinuance shall be void and that it shall be lawfull for every person to whom the interest title or inheritance after the decease of the said woman should appertaine to enter c. So as if such a feme Tenant in taile do make any discontinuance in fee in taile or for life although it be with warranty yet this doth not take away the entry after her death either of the issue or of him in reversion or remainder Vide Sect. 697. l. 3. fo 50 51. Sir George Brownes case and l. 3. f. 60 c. Lin. Coll. case P. 1. f. 176. Mildmayes case Dy. 3. 4. P.M. 146. 8 El. Dy. 448 15 El. 340. 19 El. 354. 20 El. 362. 27 H. 8. 23. l. 5. f. 79. Fitz. case and Grevelys case l. 8. fo 71 c. If Lands were intailed to a man and his wife and to the heirs of their two bodies and the husband had made a feoffment in fee and dyed and then the wife dyed this had been a discontinuance at the Common Law for the title of the issue is as heir of both their bodies and not as heir to any one of them and his entry must ensue his title or action But this is remedied by the Statute of 32 H. 8. Tenant in taile shall have a quod permittat 4 E. 3. 38. 43 E. 3. 25. 4 E. 4. 25. F. N.B. 124. And he shall have a writ of Customes and services le debet solet but shall not have it in the debt only 2 E. 2. droit 28. So he shall have a Secta ad molendum in le debet solet but not in the debet tantum F.N.B. 123. Tenant in taile shall have a writ of entry in consimili casu an Admesurement a nativo habendo cessavit escheat waste c. 21 E. 3. 11. 5 E. 3. 23. 11 H. 4. 49. But tenant in taile shall not have a writ of right sur disclaimer nor a quo jure nor a ne injuste vexes nor a nuper obiit or Rationabile parte nor a Mordanc nor a sur cui in vita for these and the like none but Tenant in fee shall have and the highest writ that a Tenant in taile can have is a Formedon 2 E. 3. droit 28. 13 H. 7. 24. 5 E. 4. 2. 20 E. 3. Avowry 13â— F.N.B. 10. 46 E. 3. cui in vita 33. Sect. 596 597. Fo. 327. b. It is provided by the Statues of W. 2. c. 1 De donis cond quod non habeant illi quibus tenementum sic fuerit datum potestatem alienandi c. So as these words non habent potestatem alien do work these effects viz. as to lands that a feoffment barreth not the issue of his action but worketh a discontinuance to barre him of his entry as to rents or any thing in esse that lye in grant that the said words do his power â—o make any discontinuance as to rents c. newly created that they take away his power to make them to continue longer than during his life 18 E. 3. 12. 24 E. 3. 28. 36 Ass 8. 5 E. 4. 3. 4 H. 7. 17. Pl. Com. Smith and Stapletons case But there is a diversity between alienation working a discontinuance of an estate which taketh away an entry and an alienation working divesting or displacing of estates which take away no entry As if there be Tenant for life the remainder to A. in taile the remainder to B. in fee if Tenant for life doth alien in fee this doth divest and displace the remainders but worketh no discontinuance and so note that to every discontinuance there is necessary a divesting or displacing the estate and turning the same to a right for if it be not turned to a right they that have the Estate cannot be driven to an action therefore such inheritances as lye in grant cannot by grant be discontinued because such a grant divests no Estate but passeth only that which he may lawfully grant and so the Estate it self doth descend revert or remaine as shall be said hereafter A. maketh a gift in tail to B. who maketh a gift in tail to C. C. maketh a feoffment in fee and dyeth without issue B. hath issue and dyeth the issue of B. shall enter for albeit the feoffment of C. did discontinue in reversion of the fee simple which B had gained upon the estate tail made to C. yet it could not discontinue the right of entaile which B. had which was discontinued before and therefore when C. died without issue
331. 20 E. 3 Estop 187. 2. That every Estopple because it concludeth a man to alleage the truth must be sertain to every intent and not to be taken by argument or inference 21 E. 4. 4. 23. Ass 14. 17 H. 6. Estop 273. 18 E. 3 30. 7 H. 6. 7. 16. 3. Every Estoppel ought to be a precise Affirmation of that which maketh the Estoppel and not be spoken impersonally as if it be said Vt dicitur quia impersonalitas non concludit nec ligat 46. 3 E 33. 29 Asse 38. Pl. Com. 398. neither doth a recital conclude because it is no direct Affirmation 35. H. 6. 33. 46. 3 E 12 49 E. 3. 14. 8. Ass 3. 45. Ass 5. 3. El. Dyer 196. 11 El. Dyer 280. 9 H. 6. 60. 4. A matter alleaged that is neither traversable nor material shall not estop 5 E. 4. 7. 8 E. 4. 19. 10 E. 4. 12. 22 E. 4. 38. 32 Ass 9. 35 H. 6. 20. 5. Regularly a man shall not be concluded by acceptance or the llke before his Title accrued 33 H. 6. 16. 4 E. 3. 22. 6 H. 4. 7. 31 E. 1. Gard 155. F.N.B. 142. E. 6. Estoppel against Estoppel doth put the matter at large 12 H. 7. 4. 20 H. 6. 29. 3 H. 4. 9. 41 E. 3. 4 11 H. 4. 30. 7. Matters alleaged by way of supposal in Counts shall not conclude after Non-suit otherwise it is after Judgement given and after Non-sute albeit the supposal in the Count shall not conclude yet the Barre Tittle Replication or other pleading of either party which is precisely alleaged shall conclude after Non-suit and hereby are the Books reconciled 2 R. 3. 14. 2 R. 2. Estop 10. 40 E. 3. 21. 128..4 13. 18 E 3. 31. 35. 44 E. 3. 45. 17 Ass 27. 45 E. 3. 2. 21 H. 7. 14. 5 E. 4. 7. â— E. 4. 19. 3 E. 4. 11. 4 E 3. 54. 7 E. 6. Br. Fstop 162. 11. H. 4. 30. 30 E. 3. 21. 31 Ass 14. 8. Where the verity is apparent in the same Record the adverse party shall not be estopped to take advantage of the truth for he cannot be estopped to alleage the truth when the truth appeareth of Record If a Fine be levied without any Original it is voidable but not void but if an Original be brought and a Retraxit entred and after that a concord is made or a Fine levied this is void in respect the veriety appeareth of Record 37 Ass 17. 38 H 12. 3 El. Dyer 222. An Impropriation is made after the death of an Incumbent to a Bishop and his Successors the Bishop by Indenture demiseth the Personage for fourty yeers to begin after the death of the Incumbent the Dean and Chapter confirm it the Incumbent dyeth this demise shall not conclude for that it appeareth he had nothing in the Impropriation till after the death of the Incumbent 7 Eliz. Dyre 244. 9. Where the Record of the Estoppel doth run to the disability or illegittimation of the person there all strangers shall take benefit of the Record as Outlawry excommengement Profession Attainder of Praemunire of Felonies c. Bastardy Mulierty and shall conclude the party though they be strangers to the Record Vide Sect. 196. 197 e. But of a Record concerning the name of the person quality or addition no stranger shall take advantage because he shall not be bound by it But Nota Reader That in case of the Mulierty prima facie an estranger shall take benefit of it c. But yet because he may be a Mulier by the Ecclesiastical Law and a Bastard by the Common Law therefore against such a Certificate pleaded the adverse party may alleage the special matter and confesse the Certificate of the Bishop according to the Ecclesiastical Law and alleage further the special matter according to the Common Law whereunto the adverse party must answer and so are the Books reconciled Bract. fo 420. 26 Ass 64. 39 Ass 10. 11 H. 4. 84. 7 H. 6. 7. 33 Ass 5. 11 E. 3. Estop 2 29. 21 E. 3. 39. 19 R. 2. Estop 28. 2. 3 E. 23. 3. ib. 33 E. 3 Estop Statham Stat. 9 H. 6. c. 11. 30 H. 6. 2. D. St. 69. 34 H. 6 39. 18 E. 4. 2 b 10 E. 4. 16. Sect. 669. Fol. 353. a. When a feme covert is received she shall plead as if she were sole and this is regularly true yet holdeth not in all cases for if a feme covert be received in an Assize and plead a Record and fail therefore she shall not be adjudged a disseisor as she shoud be if she were sole c. 37 Ass 1. So if a feme covert onely levy a Fine executory and a Scire fac is brought against her and her husband if she be received upon the default of her husband she shall barre the Conusee which if she had been sole she could not do and in some other cases 17 Ass 17. 29 E. 3. 43. 5 E. 3. 138 Voucher Again If the husband levy a Fine of his wives land and the Conusee grant and render the land to the husband and wife although the wife be not party to the Original nor to the Conusans and therefore she ought not by the Law to take any present estate but by way of remainder onely yet here it is proved by Littleton That the grant and render de fecto to the wife in presenti is not void for then it could not work a Remitter but voidable by Writ of Error and that avoidable estate doth work a Remitter T. 27 El. inter Owen Morgan Rot. 276. in Com. B. l. 3. f. 5. Marg. of Winchesters Case 7 E. 3. 64. 13 E. 3. Vouch. 119. Vide Sect. Sect. 670. Fo. 353. b. Si Baron feme fesont un conusance de droit a un auter c. ou fesoyent un grant render a un auter ou release per fine a un auter c. lou le droit del feme passera del feme per forne de mas le fine en tout tiels cases le feme serre examin devant que le fine soit accept pur ceo que tiels fines concludont tiels femes coverte a touts jours c. mes lou riens est move en le fine forsque tantsolement que le Baron la feme pregnant estate per force de mes le fine ceo ne concludam la feme pur ceo que en tiel case el jameres ne serre my examine c. 15 E. 4. 28. 14 E. 3. 31. Therefore if the husband and wife be Tenants in speciall Tail and they levy a Fine at the Common Law and after the husband wife take back an estate to them and their heirs in this case the estate Tail is not barted and yet against a feme levied by her self she cannot be remitted because thereupon she was examined but in that case if the land descend to her issue he shall be remited â—9 E. 3.
venter and a Son by another the eldest Son enters and dieth the land descends to the sister in this case the warranty descendeth on the Son and he may be vouched as heir and the sister as heir of the land In which case and in the other case of Borough English the Son and heir by the Common Law having nothing by discent the whole loss of the recovery in value lieth upon the heires of the land albeit they be no heires to the warranty 32 E. 3. vouch 94. 35 H. 6. 3. Then put the case that there is a warranty paramount who shall deraign that warranty and to whom shall the recompence in value go some have said that as they are vouched together so shall they avouch over and that the recompence in value shall enure according to the losse and that the effect must pursue the cause as a recovery in value by a warranty of the part of the Mother shall go to the heire of the part of the Mother c. Pl. Come 515. Some others hold that it is against the maxime of the Law that they that are not heirs to the warranty should joyn in a voucher or to take benefit of the waranty which descends not to them but that the heir at the common Law to whom the warranty descended shall deraign the warranty and recove in value and that this doth stand with the rule of the common Law Others hold the contrary and that this should be both against the rule of Law and against reason also for by the rule of Law the vouchee shall never sue to have execution in value untill execution be sued against him But in this case excution can never be sued against the heir at the common Law therefore he cannot sue to have execution over in value Secondly it should be against reason that the heire at the common law should have totum lucrum and the especial heirs totum damnum 17 E. 2. Recover in value 33. 18 E. 3. 51. l. 1. 96. Shelleyes case I find in our Books this reason is yielded that the special heires should not be vouched only for say they then could not they deraigne the warranty which should be mischievous that they should lose the benefit of the warranty if they should be vouched onely 32 E. 3. vouch 94. per Greene. But if the heire at the Common Law were vouched with them as by the Law he ought all might be saved and therefore study well this point how it may be done If Tenant in general Tail be and a common recovery is had against him and his wife where his wife hath nothing and they vouch and have judgement to recover in value Tenant in Tail dyeth and the wife surviveth for that the issue in Tail had the whole losse the recompence shall enure wholly to him and the wife albeit she was party to the judgment shall have nothing in the recompence for that she loseth nothing Pl. Com. Fo. 514. If the Bastard eigne enter and take the profits he shall be vouched onely and not the Bastard and the Mulier because the Bastard is in apparance heire and shall not disable himself 17 E. 3. 59. 20 E. 3. vouch 129. 5 H. 7. 2. If a man be seised of Lands in Gavelkind and hath issue three Sonnes and by Obligation bind himself and his heires and dieth an action of debt shall be maintenable against all the three Sonnes for the heire is not chargeable unlesse he hath lands by discent 11 H. 7. 12. 11 E 3. Det. 7. Dy. 5. El. 238. So if a man be seised of Land on the part of his Mother and bind himself and his heirs by Obligation and dyeth an action of debt shall lye against the heire on the part of the Mother without naming the heire at the Common Law and so note a diversity between a personal lyen of a bond and a reall lyen of a warranty Sect. 719. Fol. 377. a. Here it appeareth that whensoever the Ancestor taketh any estate of freehold a limitation after in the same conveyance to any of his heires are words of limitation and not of purchase albeit in words it be limitted by way of remainder and therefore here the remainder to the heires females vesteth in the Tenant in tail himself 24 E. 3. 36 27 E. 3. Age 108. 38 E 3. 26. 40. E. 3. 5. 37 H. 8 Br. nosme 1. 40. tit done Rem 61. The issues inheritable must make their claim either only by Males or only by Females so as the Females of the Males or Males of the Females are wholly excluded c. 1 H. 6. 4. Pl. Com. 414. Vide Sect. 24. But where the first limitation is to the heires males let the limitation be for default of such issue to the heires of the body of the donee and then all the issues be they Females of Males or Males of Females are inheritable If a man give Lands to a man to have and to hold to him and the heires Males of his body and to him and to the Heires Females of his body the estate to the heires Females is in remainder and the daughter shall not inherit any part so long as there is issue Male. Sect. 720. Nihil simul inventum esi perfectum saepe viatorem nova non vetus orhita fallit and therefore new inventions in assurances are dangerous 22 H. 6. 33. l. 6. f. 42. b. Sir Anthony Mildmayes case Non prosunt dominis quae prosunt omnibus artes quoniam In suo quisque negotio hebetior est quam in alieno 2 H. 4. fo 11. Action sur le case Sect. 721. Fol. 378. a. Every remainder which commeth by deed ought to vest in him to whom it is limited when livery of seisin is made to him that hath the particular estate 1. Littleton saith by Deed because if Lands be granted and rendred by Fine for life the remainder in Taile the remainder in Fee none of these remainders are in them in the remainder until the particular estate be executed 7 R. 2. scire facias 2. That the remainder be in him c. at the time of the livery This is regularly true but yet it hath divers exceptions As where the remainder is to commence upon limitation of time viz. upon the possibility of the death of one man before another which is a common possibility Pl. Com. Colthirsts case fo 65. 29. 32 H. 6. tit feoffments c. 99. 27. E. 3. 87. 12 E. 4. 2. 21 H. 7. 11. 7 H. 4. 23. 11 H. 4. 74. 18 H. 8. 3. 27. H. 8. 42. 38 E. 3. 26. 30. Ass 47. 6 R. 2 qu Iur. Dam. 20. A man letteth lands for life upon condition to have Fee and warranted the land in forma predicta afterward the lessee performeth the conditions whereby the lessee hath fee the warranty shall extend and increase according to the State And so it is in that case if the lessor had dyed before the
performing of the condition c. and yet the lessor himself was never bound to the warranty but it hath relation from the first livery and by this it appeareth that a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may work in the beginning But otherwise it is if a man grant a Seigniory for yeares upon condition to have fee with warranty in forma praedicta c. And so it is if a man make a Lease for yeares the remainder in fee and warrant the Land in forma predicta he in the remainder cannot take benefit of the Warranty because he is not party to the Deed and immediately he cannot take she were party to the Deed because he is named after the â—abendum and the estate for yeares is not capable of a warranty And so it is if Land be given to A. and B. so long as they â—oyntly together live the remainder to the right heires of â—â—m that dieth first and warrant the land in forma predicta A. dyeth his heir shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heir of A. have the Land by discent Sest 722. Fol. 378. b. Si le 1. fits alienast c. By the Alienation of the Donee two things are wrought 1. The Franktenement and Fee is in the Alienee 2. The reversion is devested out of the donor and therefore by the alienation that transferreth the freehold and fee simple to the Alienee there can no remainder be raised and vested in the second sonne 27 H. 8. 24. 6. R. 2. quod jur clam 23. Also an estate of an inheritance in Lands and Tenements cannot cease or be void before the state be defeated by entry then if this remainder should be good then must it give an entry upon the Alienee to him that had no right before which should be against the expresse rule of Law viz. That an estate cannot be given to a stranger to avoid a voidable Act. One Alienation cannot vest an estate of one and the same Land to two severall persons at one time If a man seised of an Advowson in fee by his deed grant the next presentation to A. and before the Church become void by another Deed grant the next presentation of the same Church to B. the second grant is void for A. had the same granted to him before and the grantee shall not have the second avoidance by construction to have the next avoidance which the grantor might lawfully grant for the grant of the next avoidance doth not import the second presentation But if a man seised of an Advowson in fee take wife now by Act in Law is the wife intitled to the third presentation if the husband dye before The husband grants the third presentation to another the husband dye the heire shall present twice the wife shall have the third presentation and the grantee the fourth for in this case it shall be taken the third Presentation which he might lawfully grant and so note a diversity between a Title by act in Law and by act of the party for the act in Law shall work no prejudice to the grantee Periculosum est res novas inusit at as inducere Eventus varios res nova semper habet vide §. 87 c. Sect. 723. fol. 379. a. Here by the Opinion of Littleton the Donor may re-enter for the condition broken for Vtile per inutile non vitiatur which being in case of a condition for the defeating of an estate is worthy of Observation And it is to be noted That after the death of the Donor the condition descendeth to the eldest Sonne and consequently his alienation doth extinguish the same for ever wherein the weaknesse of this invention appeareth and therefore Littleton here saith That it seemeth that the Donor may re-enter and speaketh nothing of his heirs A man hath issue two Sons and maketh a gift in Tail to the eldest the remainder in fee to the puisne upon condition that the eldest shall not make any discontinuance with warranty to barre him in the remainder and if he doth that then the puisne Son and his heirs shall re-enter the eldest maketh a feoffment in fee with warranty the Father dyeth the eldest Son dyeth without issue the puisne may enter But if the discontinuance had been after the death of the Father the puisne could not have entred In this case four points are to be observed 1. As Littleton here saith the entry for the breach of the Condition is given to the Father and not to the puisne Sonne 2. That by the death of the Father the condition descends to the elder Sonne and is but suspended and is revived by the death of the eldest Son without issue and descendeth to the yongest Son 41 E. 3. vide Sect. 446. 3. That the feoffment made in the life of the Father cannot give away a condition that is collaterall as it may doe a right 4. That a Warranty cannot binde a Title of entry for a condition broken but if the discontinuance had been made after the death of the Father it had extinguisht the condition which case is put to open the reason of our Authors opinion The ancient Judges and Sages of the Law have ever as it appeareth in our Books suppressed innovations and novelties in the beginning as soon as they have offered to creep up lest the quiet of the Common-wealth might be disturbed 31 Ed. 3. Gager delivery 5. 22 Ass 12. 38 Ed. 3. 1. 2 H. 4. 18 c. And so have Acts of Parliament done the like 1 Ed. 3. cap. 15. Stat. 3. 18 Ed. 3. cap. 1. 6. 4 Hen 4. cap. 2. 11 Hen. 6. cap. 23. 12 Ed. 4. cap. 8 c. Sect. 726. fol. 380. a. Here note this diversity If the heir be within age at the time of the discent of the Warranty he may enter and avoid the estate either within age or at any time after his full age 18 Ed. 4. 13. 35 Hen. 6. 63. 28 Ass 28. 32 Ed. 3. garr 30. and Littleton saith well That the Infant in this case may enter upon the Alienee for if he bring his action against him he shall be barred by this Warranty so long as the state whereunto the Warranty is annexed continues and be not defeated by entry of the heir but if he be within age at the time of the alienation with Warranty and become of full age before the discent of the Warranty the Warranty shall barre him for ever Our Author putteth his cases where the entry of the Infant is lawfull for where it is not lawfull when the Warranty descendeth the Warranty doth binde the Infant as well as a man of full age and the reason is because the state whereunto the Warranty was annexed continueth and cannot be avoided but by action in which action
the Warranty is a barre And so it is of a Feme covert if her entry be not lawfull a Warranty descending on her during the coverture doth bind her and albeit the husband be within age at the discent of the warranty yet if the entry of the wife be taken away the warranty shall bind the wife 8 Ed. 3. 3. 3 H. 7. 9. Br. tit War 54. 33 H. 8. War Br. 84. l. 1. f. 67. a. Aâ—chers Case and 140. Chudleys Case Note a diversity between matters of Record done or suffered by an Infant and matters in fait for matters in fait he shall avoid either within age or at full age but matters of Record as Statute Merchant Staple Recognizances knowledged by him or a Fine levied by him Recovery against him by default in a reall action saving in Dower must be avoided by him viz. Statute c. by Audita querela and the Fine and Recovery by Writ of Error during his minority and the like because they are judiciall acts and taken by a Court or a Judge therefore the nonage of the party to avoid the same shall be tryed by inspection of Judges and and not by the Countrey 20 Ed. 3. Audita querela 27. F.N.B. 104. k. 6 Ed. 3. 39. 17 Ass 53. 17. 21 E. 2. 4. 15 E. 4. 5. 8 Hen. 6. 30. 1 Hen. 7. 15. 6 Hen. 8. Saver default Br. 50. 3 Hen. 6. 10. 1 Mar. Dyer 104. And for that this nonage must be tryed by inspection this cannot be done after his full age But if the age be inspected by the Judges and Recorded that he is within age albeit he come of full age before the Reversall yet may it be reversed after his full age P. 13. Ja. R. in Banco Reg. fol. 380. b. No negligence shall be adjudged in an Infant where he is thereby to be barred of his entry in respect of a former right as by a discent or of his former right as Littleton doth here put an Example by a Warranty where his entry is congeable But otherwise it is of Condition Charges and Penalties going out of or depending upon the Originall Conveyance for the laches or negligence shall be adjudged in those cases as well in the Infant as in any other vide Pl. Com. 355 c. Stowels Case And see further there where an Infant being Tenant for life or years shall be punished for doing or suffering of waste and where he claimeth by purchase a Cessavit shall lie against him if he pay not his rent by two years And some have said if he have the Tenancy by discent and he himself cesse a Cessavit doth lie and he shall not have his age because it is of his own cesser 31 Ed. 3. Age 54. But other Books as some conceive them be against that vide 9 Edw. 3. 50. 28 Ed. 3. 99. 14 Ed. 3. Age 88. 2 Ed. 2. Age 132. and others which Books doe not prove that the Cessavit doth lie in that case but the contrary that he shall have his age to the end he may at his full age certainly know what to plead or what arrerages to tender for the land was originally charged with the Seigniory and Services Sect. 728. ** Note three things concerning the construction of Statutes 1. That it is the most naturall and genuine Exposition of a Statute to construe one part by another c. for that best expresseth the meaning of the makers Pl. Com. 75. 7 Ed. 3. 89. As here the question upon the generall words of the Statute is Whether a Fine levied only by a husband seised in the right of his wife with Warranty shall barre the heir without Assets And it is well expounded by the former part of the Act whereby it is Enacted That Alienation made by Tenant by the Curtesie with Warranty shall not barre the heir unlesse the Assets descend Bract. lib. 4. fol. 321. Fleta lib. 5. cap. 34. And therefore it should be inconvenient to intend the Statute in such manner as that he that hath nothing but in the right of his wife should by his Fine levied with Warranty barre the heir without Assets and this Exposition is ex visceribus actus 2. The words of an Act of Parliament must be taken in a lawfull sense as here the words being Whereof no Fine is levied in the Kings Court are to be understood whereof no Fine is lawfully or rightfully levied c. and therefore a Fine levied by the husband alone is not within the meaning of the Statute for that Fine should work a wrong to the wife but a Fine levied by the husband and wife is intended by the Statute for that Fine is lawfull and worketh no wrong Pl. Com. 246. Seignieur Barklays case l. 9. fol. 26. Abbot de Strata Marc. and generally the Rule is Quod non praestat impedimentum quod de jure non sortitur effectum Vide fol. 381. b. 11 H. 4. 80. 3. That constructions must be made of a Statute in suppression of the mischief and in advancement of the remedy as by this case it appeareth For a Fine levied by the husband onely is within the letter of the Law but the mischief was the heir was barred of the Inheritance of his Mother by the warranty of his Father without Assets and this Act intended to apply a remedy viz. That it should not barre unlesse there were Assets and therefore the mischief is to be suppressed and the remedy advanced Et qui haeret in littera haeret in Cortice Sect. 731. Fol. 383. a. Nullius hominis autoritas tantum apud nos valere debet ut meliora non sequeremur si quis attulerit 8 E. 2. gar 81. 18. E. 3. 51. 7 E. 3. 84. Pl. Com. 57. The Judge if he knoweth it ought not to take knowledge of a Fine that worketh a wrong to a third person 33 H. 6. 52. 5 E. 3. 56. 2 El. Dyer 178. 1 H. 8. 1. M. 89. 4 E. 3. 41. 7 El. Dyer 246. Sect. 733. Fo. 383. a. The feoffor may by expresse words warrant the land for the life of the feoffee or of the feoffor c. but the Recovery in value shall be in fee. 38 E. 3. 14. Et ego haeredes mei Warrantiâ— tali haered suis tantum vel tali haered assign haered assignatorum vel assig assignator eorum haered acquietabimus defendemus c. Bract. fo 37. 248. l. 5. 380 381. Brit. 106. Per hoc autem quod dicit acquietabimus obligat se haeredes suos ad acquietand si quis plus petierit servitii vel aliud servitium quà m in carta Donationis continetur Per hoc autem quod dicit Defendemus obligat se haeredes suos ad defend fi quis velit servitutem ponere rei datae contra sormam suae donationis If a man be bound to A. in an Obligation to defend such lands to A. whereof the Obligor hath infeoffed him for 12
wrote A lineal Warranty and Assets was a barre to the estate Tail when Littleton wrote 26 H. 8. c. 13. 33 H. 8. c. 20. 5 E. 6. c. 11. St. pl. Cor. 18. A Common Recovery with a voucher over and a Judgement to recover in value was a barre of the estate Tail when Littleton wrote 12 E 4. 19. Taltarums Case And of Common Recoveries there be two sorts viz. one with a single Voucher and another with a double Voucher and that is more common and more safe there may be more Vouchers over Vid. Sect. 690. vide l. 3. f. 5. Cuppledicks case and fo 94 97 106. vide post ** If the King had made a gift in Tail and the donee had suffered a Common Recovery this should have barred the estate Tail in Littletons time but not the reversion or remainder in the King And so if such a donee had levied a Fine with proclamation after the Statute of 4 H. 7. this had barred the estate Tail although the reversion was in the King 38 H. 8. Tail Br. 41. Pl. Com. fo 555. 29 H. 8. Dyer 52 ** Com. Recoveries c. Vide l. 1. f. 62. Capels case l. 2. f. 16. 52 74 77. l. 6. f 41 32. l. 10. f. 37. Mary Portingtons case But since Littleton wrote a Common Recovery had against Tenant in Tail of the Kings gift c. is no barre c. by the Statute of 34 H. 8. c. 20. And where the words of the Statute be Whereof the reversion or remainder at the time of such recovery had shall be in the King these ten things are to be observed upon the construction of that Act. 1. That the estate Tail must be created by a King and not by any Subject 2. The King must have the reversion at the time of the Recovery 3. The reversion or remainder cannot be barred but where the estate Tail in possession is barred l. 8. f. 77 78. Seignieur Staffords case 4. If a Subject make a gift in Tail the remainder to the King in fee the estate Tail may be barred by a Common Recovery causa patet l. 2. f. 52. Cholâ—leys case 5 So it is if the King had the remainder by discent 6. The word Reversion in the body of the Act hath reference to these words given or granted and Remainder hath reference to these words otherwise provided As if the King in consideration of money or of Assurance of Land or for other considerations by way of provision procure a Subject by Deed indented and inrolled to make a gift in Tail to one of his Servants and Subjects for recompence of service or other consideration the remainder to the King in fee and all this appear of Record this is a good provision within the Statute and the Tenant in Tail cannot by a Common Recovery barre the estate Tail So it is if the remainder be limited to the King in Tail bus if he be limited for years or for life it is otherwise Lib. 2. fol. 16. Wisemans case 7. Where a Common Recovery cannot barre the estate Tail by force of the said Statute there a Fine levied in Fee in Tail for lives for years with proclamation according to the Statute shall not barre the estate Tail or the issue in Tail where the reversion or remainder is in the King by reason of these words in the said act The said Recovery or any other thing or things hereafter to be had done or suffered by or against any such Tenant in Tail to the contrary notwithstanding which words include a Fine levied by such a donee and restraineth the same P. 31. Eliz. Rot. 1645. Notleys case B. C. 8. But where a Common Recovery shall barre the estate Tail notwithstanding that Statute there a Fine with proclamation shall barre the same also 9. Where the said latter words of the Statute be Had done or suffered by or against any such Tenant in Tail the sense and construction is where Tenant in Tail is party or privy to the Act be it by doing or suffering that which should work the barre and not by meer permission he being a stranger to the Act. 10. Albeit the Preamble of the Statute extends onely to gifts in Tail made by the Kings of England before the Act viz. hath given and granted c. and the body of the Act referreth to the Preamble viz. that no such fained Recovery hereafter to be had against such Tenant in Tail so as this word such may seem to couple the body and the Preamble together yet in this case such shall be taken for such in equal mischief or in like case and by divers parts of the Act it appeareth That the makers of the Act intended to extend it to future gifts and so is the Law taken at this day A Recovery in a Writ of Right against Tenant in Tail without a Voucher is no barre of any gift in Tail If Tenant in Tail the remainder over in fee cesse and the Lord recover in a Cessavit this shall not barre the estate Tail for the issue shall recover in a Formedon neither were either of these barres when Littleton wrote 33. E. 3. Judgement 252. 3 H 6. 55. 10 H. 6. 5. 14 E. 4. 5. b. 15 E. 4. 8. F.N.B. 134. b. Pl. Com. 237. 28 E. 3. 95. F.N.B. 28. I. Sect. 702. Fol. 373. b. Nemo praesumitur alienam posteritatem suae praetulisse If a man that is innocent be accused of Felony and it be found that he fled for the Felony he shall forfeit all his goods and chattels debts and duties 3 E. 3. Corone Staf. But yet the general Rule is Quod stabitur praesumptioni donec probetur in contrarium Bract. l. 1. c. 9. It hath been attempted in Parliament that a Statute might be made That no man should be barred by a Warranty collateral but where assets descended from the same Ancestor but it never took effect for that it should weaken common assurances Rot. Parliament 50 E. 3. num 77. Sect. 710 711 712. If husband and wife tenants in especial Tail have issue a daughter and the wife dye the husband by a second wife hath issue another daughter and discontinueth in fee and dyeth a collateral Ancestor of the daughters releaseth to the discontinuee with Warranty and dyeth the Warranty descendeth upon both daughters yet the issue in Tail shall be barred of the whole for in judgement of Law the entire Warranty descendeth upon both of them 5 E. 2. garr 78. l. 8. fo 41. Sims case Here note That when one Coparcener doth generally enter into the whole this doth not devest the estate which descended by Law to the other unlesse she that doth enter claimeth the whole and taketh the profits of the whole Vide Sect. 398. Otherwise it is after the parceners be actually seised the taking of the whole profits or any claim made by the one cannot put the other out of possession without an actual putting out of disseisin And