Estoppell Estoppell And therefore if a lessee for yeers or a disseisee or one that hath right onely to a remainder or reversion levie a fine to a stranger that hath nothing in the land this fine is void or at least voidable as to and by any stranger thereunto and he that hath cause may shew that the freehold estate and seisin of the land was in another before and at the time of the fine levyed and that Partes finis nihil habuerunt tempore levationis finis And by this avoid it And yet a vouchee after he hath entred into the warranty may levy a fine unto the demandant but not to a stranger And a disseifor may levy a fine to a stranger that hath nothing in the land and this is a good fine for he hath the fee simple by wrong in him Also the issue in taile may be barred by way of Estoppell by a fine levyed by Ancester being tenant in taile albeit neither conusor nor conusee have any estate of freehold in the land a a 26 H. 8. 9. Dyer 334. 69. Plow 375. 338. E. 4. 13. 11 E. 4. 68. A joint-Joint-tenant tenant in Common or Coparcenour may levy a fine of his part to a stranger and this will be a good fine And so also as it seemes may one Goparcenour or tenant in common to another One single member of a corporation aggregate of many cannot levy a fine of the lands of the corporation as the Maior or Master of a College cannot levy a fine without the communalty or his fellows c. But such persons may levy fines of the lands they are solely seised in their own right as other men may die Such as have estates of freehold in in Ecclesiasticall lands in the right Co. 11. 78. of their Churches houses c. as Bishops Deanes and Chapters Prebends Parsons and the like may not levy a fine of such lands for if they doe it will not bind the successor He that hath an estate of fee simple in lands in the right of his wife ought not to levy a fine thereof without her and if he doe shee Stat. 32 H. 8. chap. 28. 12 E. 4. 12. Co. 6. 55. Broo. Fines 121. Stat. 32 H. 8. ch 36. Co. 5. 3. 4. Stat. 1 H 7. chap. 20. and her heires may avoid it after his death Also he that hath an estate of lands given in taile by the King or by the provision of the King ought not to levy a fine of this land for it is void as against the issue in taile and the King Also he that hath an estate of lands that are prohibited to be sold by Act of Parliament ought not to levy a fine of such land Also she that hath an estate of lands of her husband or of any of his ancestors assured to her for her Jointure Dower or in taile by the meanes of her husband or any of his ancestors may not levy a fine of this land for if she grant a greater estate then for her own life this worketh a present forfeiture In the concords of Fines some things are to be regarded in the 5. In respect of the Concord and matters touching it And what concord or agreement may bee made by Fine or not West Symb. ubi supra Sect. 30. Co. 5 38. manner and forme and some things in the matter and substance First when a fine is levyed to divers Cognisees the right shall be limited to one of them As if a fine be levyed by A. to B. and C. it shall say Quod praedict ' A. recognoverit tenementa praedict ' esse jus ipsius B. ut ill'quae iidem B. et C. habent c. But the Kings tenant may acknowledge the right to be in divers Secondly the state shall be limited to his heires onely to whom the right is limited and not to the heires of all the cognisees as thus Quod praedict ' A. cognoverit tent ' praed c. esse jus ipsius B. ut ill quaeiidem B. C. habent de dono praedict ' A. ill'remisit quiete clam ' de se haered suis praefat ' B. et C. et haered ipsius B. c. The release and warrantie must be from the heirs of one of the Cognisors where there be more then one for in a fine from divers the fee is supposed to be in one onely And therefore it must be thus Quod praedict ' A. B. cogn ' ill'remisit c. de se et haered ipsius A. Et eidem A. et B. concesserunt pro sâ— et haered ipsius A. quod ipsi war ' tenementa c. si contra se et haereredes ipsius A. imperpetuum But if the fine be of lands in Gavel kind contra Fourthly the Concord need not to rehearse all the speciall names of the things contained in the writ but it is sufficient to say Tenementa praedicta as quod praedict ' recognoverit tenementa praedicta c. Fifthly as a Concord cannot be without an originall writ so it must pursue the originall writ and cannot be of any forain thing 1. such a thing as is not contained in the writ except it be consequent thereunto as when the writ is of land there may be in the concord of a rent out of this land but there may be more things in the Precipe then are named in the Concord And a Concord may be with an exception of some part but this exception must alwaies be of such things whereof the writ will lie and are mentioned therein must be certainly named must succeed the things out of which they be excepted as Precipe A. B. quod teneat C. D. convenâ— c. de manerio de D. cum pertineâ— in C. except uno messuagio duabus acris terrae et advocatione Ecclesiae de C. c. Et est concordia c. quod praed A. cogn ' tenementa praedict ' cum pertinen ' except praeexcept And in all these and such like cases as before where the concord is not formall the Judges ought not to receive the fine nor suffer it to passe but if they doe and the fine be finished it cannot afterwards be avoided by writ or error or otherwise for these faults The Concord and agreement may be made of an estate in fee simple See in West Symb. divers examples Perk. Sect. 629. Broo. Fines 108. fee taile for life or for yeeres it may be also of divers remainders and that to them that are no parties but strangers to the fine It may be also single or double with a render back again of some estate in the same land or some rent out of it so as a Concord may have in it a reservation of rent a clause of distresse or Nomine penae and a warrantie b Broo. Fines 106 118. Co. 6. 33. Plow 435. Dyer 279. Co. 1 76. And therefore if A. levy a fine to B. Sur cognisance de droit come ceo
to it after it is done And therefore if a stranger of his owne head will make an entry or claime into land whereof a fine is levied whereunto I have right and he doe it to my use and I doe not agree to it within the 5. yeares this entrie or claime will not avoid the fine And yet it was held by Just Dodridge M. 2 Car. B. R. that if a stranger enter in my name and to my use that have the right that this doth vest the estate in me before agreement and I shall be said to agree untill I doe disagree A fine also is and sometimes may be avoided by plea As by Stat. 4 H. 7. c. 24. Co. 3. 141. 88. Dyer 334. 3. By a plea. Averment of the continuance of seisin of the Land in another at and before the time of the fine levied and that partes finis nihil habuerâ—nt tâ—mpore levationis finis and then he must shew in whom the estate was As if lessee for yeares or a disseisee levie a fine to a stranger that hath nothing in the land or A be disseised by B and B bee disseised by C and B levy a fine to D or one that hath a right of a remainder only or a disseisor make a gift in taile and the donee make a feoffement to A and after levie a fine to a stranger that hath nothing in the land But this plea it seems neither parties nor privies albeit they bee issues in taile may have at this day but strangers only and therefore in the last case the disseisor and not the issue in taile may avoyd this fine by this plea. But if a Collaterall Ancestor of whom the issue in taile doth not claim the land levie such a fine the issue may by this plea avoid it It seems also the issue in taile may have this plea to a fine Sur Release only Also there is a plea by which as it seems a fine hath been avoidable which in effect is nothing else but an averment of seisin still Co. 3. 84. Dyer 334. 290. Stat. 27 E. 1. c. 1. in the demandant or plaintiffe or his heires before at and after the time of the fine levied And this plea as it seems no man may have at this day but the issue in taile only to avoid a fine levied Sur grant Render by the Ancestor in taile and not to avoid a fine levied Sur Conusance de droit come ceo que il ad de son done c. And a feme Covert to avoid a fine levied by her husband alone If there be two of one name and one of them levie a fine of the land of the other or a stranger levie a fine in the name of him 34 H. 6. 19. 19 H. 6. 44. that is owner of the land in both these cases the fine may be avoyded by pleading the speciall matter And yet some hold that in this case the party hath no remedy but by action of disceit A fine also is and sometimes may be avoided by the sentence of 4. Pâ—a Vacat a Court when it appeareth to be gotten and obtained by some notorious fraud or practise And now it is high time we come to the second kind of common assurances made by matter of record viz. a Common Recovery CHAP. III. Of a Common Recovery A Recoverie in generall is the obtaining of any thing unjustly 1. Common Recovery Quid. Co. super Lit. 154. See the Preamble of the stat of 23 H. 8. cap. 10. 23 Eliz. cap. 3. Doct. Stud. 41. West Sym. tit Recovery taken or detained by judgment or triall of Law And it is either a common recoverie which is such a recovery as is used for a common assurance of land or other recovery which is not used as an assurance of land And the common recovery that is used for the assurance of land is nothing else but â—ictio juris or a certaine forme or course set downe by Law to be observed for the better assuring of lands and tenements to men And this is somewhat after the example of the recovery upon Title which is without consent and contrary to the will of him against whom the same is had for Recoveror Recoveree Vouchee there is in this a colourable suit wherein there is a demandant which is called the Recoverer and a tenant which is called the Recovere and one that is called to warrant upon a supposed warranty which is called the Vouchee The common recovery is somtimes with a single voucher which 2 Quotuplex is when the writ is brought against him that is to passe the land immediately and he doth vouch over the common vouchee And sometimes it is with a double voucher which is when the writ is brought against another to whom he that is to passe the land hath aliened it and he doth vouch him that is to make the assurance and he doth vouch over the common vouchee and this is the â—urest way and the saâ—est kind of recovery In this formality of a common 3 The manner and order of suffering a Common Recovery recovery the course is that by agreement of the parties a reall See the places before Co. 1. â—4 10. 43. 45. action is begun by a writ of entry brought by him that is to have the land assured against him that is to make the same assurance if it be with a single voucher or if it be with a double voucher against him to whom he that is to make the assurance hath aliened the land And in this suit the recoveror that doth bring the action doth â—urmise that the tenant against whom the writ is brought hath no right to the land but that the recoveror hath right thereunto and that the tenant came to it from such a stranger whom the demandant doth name And to this the tenant doth appeare in person or by Atturney and then doth enter into defence of the land but in pleading doth vouch to warrant i. doth alleage that he bought the land of I. S. a stranger who in the conveyance thereof bound himselfe and his heirs to warrant and make good the title to him or them to whom it is conveyed and thereupon he prayeth that I. S. may be called in to defend the title and then hee is allowed by the Court to call in I. S. to say what he can for the justifying of his right to the land before he so conveyed it And hereupon I. S. doth appeare and make shew as if he would defend the title but doth pray a further day may be assigned him to make his defence which being granted him by the Court at the day appointed he by agreement covin and assent of the parties doth not come in but make default And thereupon the land is to be recovered by him that brought the writ against the tenant and he is left for his remedy to I. S. upon his warranty and accordingly
judgment is given by the Court that the demandant or recoverer shall recover the land demanded against the tenant and that the tenant shall recover so much land of I. S. of his own land in recompence for the land recovered from him which he ought to have warranted and defended but suffered to be lost And this recovery over is called Recovery in value or pro Rata Quid. F. N. B. 1 34 Co 9. 6. a recovery in value or pro Rata But if the recovery be with a double voucher or a treble voucher I. S. is upon his appearance to call or vouch to warrant I. D. and to alleage in the same manner as the tenant doth and so pray that I. D. may come in and thereupon I. D. doth appeare and make default And so if there be more vouchers and then there must be severall recoveries over in value against every one of them but he that is the last vouchee is alwaies the common voucher who is one of the â—ryers of the Court of Common Pleas a man not worth any thing and one that hath no land to render in value upon the supposed warranty And by his devisei grounded upon the strict Principles of law the first tenant doth wllingly let goe the land for the assurance of the Purchasor and yet in truth hath no recompence over because the vouchee hath no land to â—ender in value And by this meanes if one have â—n estate taile in lands which he is desirous to sell or to convert into an estate in fee simple the same is commonly done for the tenant in taile doth cause the purchasor or some friend of his to bring a writ of entry against him for this land and he appeareth to the writ and in pleading â—aith that the land came to him or his Ancestors from such a man or his ancestors who in the conveyance bound themselves to warrant it And thereupon that man is called in who doth appeare and make default and thereupon Judgement is had against him in manner as aforesaid Or if he would have the recovery with a double voucher then doth he by fine feoffement or deed of bargaine and sale inrolled discontinue the land and then cause the recoveror that is to have the land to bring his writ of entry against the discontinuee and he doth vouch the tenant in taile who doth vouch over the common vouchee and so it is done and by this the estate taile that the tenant in taile hath or had is barred and bound for that it appeareth now he had no power to entaile the land whereunto he had no just title and besides â—â—e shall recover a recompence over in value and this is adjudged in law to goe in succession of estate as the land should have done which is the reason why the recovery is a barre to all that are in remainder and reversion aswell as to the issues in taile And in the suffering of these recoveries the tenants and vouchees Experientia doe appeare most commonly in person in Court and so the recovery is finished in the court presently without more doing but sometimes they will not or cannot appeare in person and then they doe use to appear and suffer the recovery by Atturney And in that case there must be a Conusance for a warrant of Atturney Warrant of Atturney taken to authorize the Atturney or Atturneys in this manner if it be for a treble voucher Glouc'ss Prec ' A S B uxori ejus quod juste c. redd ' C D Manerium West Sym. ubi supra de N cum pertinen ' c. que clam ' esse jus â—t hered suam in que iidem A B non habent ingress nisi post disseisinam quam H H injuste fine Judicio fecit prefat ' C infra 30. Annos jam ultim ' â—lapsos c. ut dic ' c. Glouc'ss A S B po lo suo W W R R Aâ—tornat sâ—â—os conjunctiâ— divisim versus C D de placito terre Glouc'ss M M gen quem A S B vocant ad warrant po lo. suo I I L L Attornat ' suos conjunctim divisim versus C D de placito terre Glouc'ss G W gen quem M M voc inde ad warrant ' po lo. suo R G R S Attornat ' suos conjunctim divisim versus C D de placito terre And in these cases to make two atturneys at the least and to Co. 10. 43. Co. 1. 94. give them an authority joyntly and severally that if one of them dye before the recovery be suffered the other may have power to doe and dispatch it And these warrants of Atturney for the suffering of recoveries are to be knowledged and certified in the same manner as the conusances of fines knowledged in the Country are save only that Recognisances for warrants or atturney for recoveries may be taken by any Judge of the Court of Common Pleas or any Serjeant at law without a Dedimus Potestatem But if any others take it they use to doe it by a speciall Dedimus Potestatem Dedimus Potestatem which is to command the Commissioners therein named to come to such persons and to take the names of their atturney or atturneys in the suit and to certifie the same into the Chancery under their Seales such a day And if there be any woman covert that is to make the conusance it seemes shee is to be examined as in the Examination case of the conusance of a fine And when this is done the recoveries may be suffered by the atturneys without the personall appearance of the parties And this is as good a recovery as the other which is suffered by the persons themselves appearing in Court but that it will require longer time for the perfection of it for in this case there must goe forth a Summoneas ad warran ' which must have nine Returnes ere the recovery can be perfected and by that time one of the parties may be dead And when the recovery is thus suffered by the parties in person or by their atturneys the same is to be entred by some one of the Clarks of the Court of Common Pleas upon the Rolles of the same Court there to remaine upon Record And herein there must goe forth a writ of Execution called an Habere facias seisinam which is sent to the Sheriffe of the Habere facias seisinam County where the land doth lye to put the Recoveror in possession of the land except the recovery be of a reversion of land after a lease for years of it in which case the reversion shall be in the recoverors by a claime without any writ And this writ the Sheriffe doth returne as executed according to the contents thereof albeit in truth he never doe any thing upon it And after this all the same proceeding is to be Exemplified by the Clarke of the
of the land whereof the recovery is to be had for an estate for years or any such like estate will not hinder the suffering of a recovery there the course is to get a Conditionall Surrender from the tenant for life of his estate to him in reversion or remainder to the end that he may be perfect tenant of the Inheritance and then the writ of entry may be brought and the recovery had against him for if a writ of entry be brought against a stranger and he vouch the tenant in taile in possession of the land and so a recovery is had or if there be tenant for life of land the remainder or reversion to another in taile or in fee and a stranger doth bring a writ of entry against him in the remainder or reversion or against a stranger who doth vouch him and so a recovery is had these recoveries are not good And yet if the writ be brought against the tenant of the land and a stranger that hath nothing in the land together and so a recovery be had this recovery is good enough And if a disseisor make a gift in taile of the land to another and the writ is brought against him and he vouch the disseisee and he vouch the common vouchee this is a good recovery 5. That it be in such a case as is not prohibited Stat. 34. H. 8. ca. 20. Co. super Lit. 37â— 2. 5. 16. Co. 8. 77 78. by some Statute law for if the King give any of his owne land Prerogative whereof he is seised or cause or procure another in consideration of money or other land to give the lands whereof he is seised in taile to any of his subjects or servants in recompence of their service or the like the remainder to the King in fee simple or fee taile such estates in taile cannot be barred by a common recovery And therefore if such a tenant in taile shall suffer a recovery of such land it is voyd and it will neither barre the issues in taile nor any of them in remainder nor the King But if the King make such a gift in taile keeping the reversion to himselfe and after doth grant the reversion to another in this case tenant in taile may suffer a recovery and bar the estate taile and the reversion also And where a subject by the Kings provision doth make such a gift in taile and then doth grant the remainder to the King for life or years only in this case the estate taile temainders and reversion also may be barred by a common recovery So in other cases where a subject doth make a gift in taile the remainder to the King in fee this estate taile may be barred by a common recovery And therefore if there be tenant in taile the remainder or reversion in fee to another and he in remainder or reversion by deed indented and inrolled doth bargaine and sell his remainder or reversion in fee to the King or if one covenant to stand seised to divers uses in taile the remainder to the King in fee in these cases the estates and the reversion and remainders depending thereupon may be barred by a recovery So if a man make a gift in taile the remainder in fee and he in the remainder doth grant his remainder to another for life the remainder to the King in fee on condition the estate shall be voyd upon the tender of 20 l. in this case the estate taile and the reversion also and condition thereupon may be barred So if the Duke of Lancaster had made a gift in taile and the reversion had descended to the King this estate taile might have been barred by a recovery So if Prince H. sonne of H. 7. had made a gift in tail the remainder to H. 7. in fee which remainder by the death of H. 7. had descended to H. 8. in this case the tenant in taile might have barred the estate taile by a recovery And yet if the King make a gift in taile the remainder in taile or grant the reversion in taile in these cases a common recovery may not be suffered to barre the entaile remainder or reversion And if the husband for the advancement of his wife in Jointure and the preferment Stat. 〈◊〉 H. 7. cap. 20. Co. 3. 58. 61. 59. of the heires of their two bodies make an estate in taile to him and his wife and the heires of their two bodies and the wife after her husbands death alone by her selfe or with any other husband suffer a common recovery of the land whereof this estate is made this recovery will not barre the estate taile But if in this case the recovery be suffered by the heire in taile or by the heire and his Mother together it is a good recovery And therefore if A be seised of land in fee and he make a feoffement in fee to the intent that the feoffee shall reconvey it to him and his wife and the heires males of his body and this is done accordingly and they have issue a sonne and she surrender or make a forfeiture and he enter and suffer a recovery this is a good recovery and barre to the esate taile or if the writ be brought against the mother and she vouch the heire in taile and so a recovery is had this recovery will barre the estate taile And howsoever at the Common Stat. 14 Eliz. cap. 8. Co. 1. 15. 62. â—0 43. 45. 3. 6. Law a recovery against a tenant for life with a voucher upon a lawfull warranty and a recovery in value was a barre to him in remainder or reversion and there was no remedy in this case yet at this day it is otherwise And therefore if tenant in taile after possibility of issue extinct tenant by the courtesie or any other tenant for life doe suffer their lands to be recovered from them by covin and agreement either as immediate tenants or as vouchees upon feigned titles without the assent and to the prejudice of him in remainder or reversion such recoveries are voyd and will not Forfeiture barre the remainders or reversions but are forfeitures of the estates of such tenants for life Insomuch that if tenant for life be made tenant in fait to the writ or tenant in law upon the voucher and so a recovery be had as if tenant for life make a lease for years and the lessee for years doth make a feoffement in fee and the feoffee doth suffer a common recovery in which the tenant for life is vouched and he vouch the common vouchee these recoveries will not bind the reversions or remainders But there is no provision made at this day to preserve the reversion or remainder expectant upon an estate taile nor to avoyd a recovery of the tenant for life where he in the next remainder is agreeing and assenting to it And therefore if there be tenant for life the remainder to A in taile the remainder to B in
Co. super Litt. 223. to be contrary and that a condition to restrain the making of such leases is good for this power is not incident Dier 48. Co. 6. 43. to the estate but given to him collaterally by the Statute and Quilibet potest renunciare juri pro seintroducto But tota curia in Mary Portingtons case is against him If a man make a gift in tail to A the remainder to him and his heirs on condition that he shall not Co. super Litt. idem Dier 227. alien this condition as to the estate tail is good and void as to the other And therefore if an alienation be he shall defeat it onely as to the estate tail And if a man make a gift in tail on condition that Co. 6. 43. the donee or his heirs shall not alien this is a good condition to some intents and void to other and therefore if he make a feoffment in fee or any other estate by which the reversion is discontinued tortiously the donor shall enter otherwise if he suffer a common recovery And a gift in tail on condition that the tenant in tail shall not make a lease for his own life is not a good condition by Co. 6. 43. against Co. super Litt. 223. If one seised in fee of land and Co. 6. 43. 4. 84. super Litt. 223. make a lease of it for years or life on condition that the lessee shall not alien the land leased or any part thereof during the term or on condition that he shall not alien it or any part of it during the term without licence of the lessor these are good conditions So if one be seised in fee of a Manor and he make a lease of years of it to I S on condition that he shall not make voluntary estates by copy this is a good condition But in a feoffment in fee such a condition is repugnant and void And if one be possessed of a lease for years or of a house or of any other chattel reall or personall and he give or sell all his interest therein upon condition that the donee or vendee shall not alien the same this condition is void for repugnancy and the gift or sale is absolute If one make a feoffment of land in fee on condition that the feoffor Co. 2. 72. Dier 318. shall retain the land for twenty years without interruption it seems this is a good condition and not repugnant If I grant land to another for life if it shall please me so long to Dier 94. suffer him it seems this condition is repugnant and void If a feoffment be made of land in fee on condition that the feoffee Co. 10. 39. super Litt. 206. Plow 77. 133. 21 H. 7. 8. 8 H. 7. 10. Perk. Sect. 731. shall not enjoy the land or shall not take the profits of the land or on condition that the heire of the feoffee shall not inherit the land or condition that the feoffee shall not doe wast or condition that his wife shall not be endowed in all these and the like cases the condition is void as repugnant to the estate If a gift in tail be made on condition that the donee or his issues Co. 6. 41. 1. 84. super Litt. 224. shall not take the profits of the land or on condition that if the donee die his estate shall go unto another or on condition that their wives shall not be endowed or on condition that they shall not do wast or on condition that warranty and assets or a collaterall warranty shall not bar the issues in tail all these conditions are repugnant and void If lands be given or granted to two and their heirs on condition Co. 1. 84. that the survivor shal have the whole notwithstanding partition or on condition that the survivor shall not have the whole albeit there be no severance these conditions are repugnant and void If one make a lease for life on condition that the lessee shall not Perk. â—ol 141. doe fealty this condition is not good If lands be given to one and the heirs males of his body provided Co. super Litt. 204. that if he die without heirs females of his body that the donor shall reenter this condition is repugnant and void If one have land in possession or reversion and he grant a rent Co. super Litt. 146. 10 H. 7. 8. Co. 6. 41. 5 H. 7. 7. 7 H. 6. 44. Perk. Sect. 732. out of it on condition that the grant shall not charge the person of the grantor this is a good condition and not repugnant But if a man grant a bare annuity or grant a rent charge out of another mans land with such a condition or if one grant a rent charge on condition that the grantee shall not distrain nor charge the person of the grantor or if one grant a rent out of land on condition that the land shall not be charged with it all these conditions are repugnant and void So if two grant a rent charge out of land provided that it shall not extend to one of them this condition is repugnant and void If a man seised in fee of land make a lease for years rendring rent Perk. Sect. 733. and after the lessee makes a lease to the lessor of other land on condition that he shall not distrain for his rent in the former lease made to this lessee this is a good condition and not repugnant If one make a feoffment in fee or lease for life with warranty on Perk. Sect. 734. Dier 47. condition that the feoffee or lessee shall not vouch to warrant nor recover in value or if the lease be made without impeachment of wast on condition that if the lessee doe wast the lessor shall reenter these are good conditions and not repugnant All conditions annexed to estates being compulsory to compell a Co. super Litt. 223 224. 207. Perk. Sect. 722 723. Conditions against Law man to doe any thing that is in its nature good or indifferent or being restrictive to restrain or forbid the doing of any thing which in its nature is malum in se as to kill a man or the like or malum prohibitum being a thing forbidden by any Statute or the like all such conditions are good and may stand with the estates But if the matter of the condition tend to provoke or further the doing of some unlawful act or to restrain or forbid a man the doing of his duty the condition for the most part is void And therefore if lands be given or granted to a man upon condition that he shal kil a man or upon condition that he shal burn his neighbours house or upon condition that he shall forswear himself or upon condition that he shall save and keep harmlesse the grantor whatsoever he shall doe or that if hee doe not these things the grant shall bee void this condition is void
a man by his last Will and Testament devise lands to antoher man for life or in tail rendring rent to this estate there is a warranty in Law annexed The words Dedi concessi or Dedi onely in a feoffment make a Co. super Litt. 384. F. N. B. 134. Co. 4. 80. good warranty in Law But the word Concessi onely in fine or feoffment doth not make a warranty in law And albeit there be an expresse warranty in the deed yet this doth not take away the implied warranty of the Law And this warranty in Law by Dedi Concessi or by Dedi onely is a generall warranty during the life of the feoffor Every partition and exchange implieth in it and hath annexed Partition Exchange Co. super Litt. 102. 384. to it a speciall warranty in Law and how it shall bar and be extended see in Exchange Every tenure by homage Auncestrel i. where a tenant and his Co. 4. 80. Auncestors have held land of a Lord and his Auncestors time out of mind by homage hath a warranty in Law annexed to it by which the Lord is bound to warrant it to the tenant and his heirs If one make a gift in tail or lease for life of land by deed or without Co. super Litt. 334. deed reserving a rent or of a rent-service by deed in these cases there is annexed an implied warranty against the donor or lessor his heirs and assignes When dower is assigned to a woman there is a warranty in Law included which is that the tenant in dower being impleaded shall Co. super Litt. 384. vouch and recover in value a third part of the two parts whereof she is dowable And this warranty in Law is of the nature of a lineall warranty Co. super Lit. 384. and shall bind as a lineall warranty onely for it doth never barre any collaterall title And hence it is that this warranty and assets in some cases is a good bar as if tenant in tail exchange for other lands which are descended to the issue and he hath accepted of them or if not that other lands are descended to him But if tenant in tail of lands make a gift in tail or lease for life rendring rent and die in this case this is no bar And yet if other assets in fee simple descend this warranty in Law and assets is a good bar To every good warranty in deed that must barre and binde these Co. super Litt. 367. 7. What shall bee said a good warranty in deed Or not And how it shall bar and bind Infant things are requisite 1. That the person that doth warrant bee a person able for if an infant make a feoffment in fee of land and thereby doth binde him and his heirs to warrant the land in this case albeit the feoffement bee onely voidable yet the warranty is void 2. That the warranty be made by deed in writing for if a Litt. Sect. 703. Co. super Litt. 386. man make a feoffement by word and by word binde him and his heirs to warrant the land this is not a good warranty So if a man give lands to another by his last Will and thereby binde him and his heires to warrant it this warranty albeit the Will bee in writing is void 3. That there be some estate to which the warranty Co. 10. 96. Super Litt. 384. is annexed that may support it for if one covenant to warrant land to another and make him no estate or make him an estate that is not good and covenant to warrant the thing granted in these cases the warranty is void 4. That the estate to Co. super Litt. 378. 26 H. 8. 9. which the warranty is annexed bee such an estate as is able to support it and therefore that it be a lease for life at the least for if one make a lease for years of land and bind himselfe and his heires to warrant the land this is no good warranty neither will it have the effect of a warranty but this may amount to a covenant on which an action of covenant may be brought 5. That the wartanty Co. super Litt. 12. Litt. fol. 161 Sect. 735. 〈◊〉 descend upon him that is heir of the whole bloud by the common Law to him that made the warranty and not upon another for if tenant in tail in Burrough English where by custome the youngest son is to inherit discontinue the tail and have issue two sons and the Vncle release to the discontinuee with warranty and dieth this is no good warranty to binde the sonne So if in this case tenant in taile discontinue the taile with warranty c. having two sonnes and die seised of other lands in the same Burrough in fee simple to the value of the lands in taile the younger sonne is not barred by this warranty So if one give his land Litt. â—o 161. to the eldest sonne and the heires males of his body the remainder to the second sonne c. and the eldest sonne doth alien with warranty having issue a daughter and die this is no good warranty to barre the second sonne So if tenant in taile have issue two daughters by divers venters and die and they enter and a Litt. Sect. 737. stranger doth disseise them and one of them doth release all her right and binde her and her heires to warrant it in this case the warranty is not good to barre the sister but if they had beene by one venter contra So if two brothers be by demy venters and Co. super Litt. 387. Litt. Sect. 718. the eldest doth release with warranty to the disseisor of the uncle and dieth without issue and the younger dieth this is no good warranty to barre the younger brother for a warranty must evermore descend upon him that is heire at the Common Law to him that made it 6. That he that is heir doe continue to be so and Litt. Sect. 745. 746. that neither the descent of the title nor the warranty be interrupted for if one binde him and his heires to warrant and after is attainted of treason or â—elony and die this warranty doth not binde his heire So if tenant in taile be disseised and after release to the disseisor with warranty and after the tenant in taile is attainted of felony and hath issue and die this warranty will not bind the issue 7. That the estate of freehold that is to bee Co. 10. 96. 97. super Litt. 388. 21 H. 7. barred be put to a right before or at the time of the warranty made and that he to whom the warranty doth descend have then but a right to the land for a warranty will not barre any estate of freehold or inheritance in esse in possession reversion or remainder that is not displaced and put to a right before or at the time of the warranty made though after at the time
of the descent of the warranty the estate of freehold or inheritance be displaced and devested And therefore if there be father and son and the sonne â—â—th a rent-service suit to a mill rent-charge rent-seck common of pasture or other profit apprender out of land of the father and the father maketh a feoffment in fee with warranty and dieth this shall not barre the sonne of the rent common c. And albeit the sonne after the feoffement with warranty and before the death of the father had been disseised and so being out of possession the warranty had descended upon him yet this warranty should not binde him So if my collaterall Auncestor release to my tenant for life with warranty and die and this warranty descend upon me this shall not binde my reversion or remainder But if in the case before the sonne be disseised of the rent c. and affirme himselfe to be disseised by the bringing of an Assise for otherwise he shall not be said to be out of possession of a rent or the like and after the father doth release with warranty and die in this case the collaterall warranty shall binde and barre the son of his rent c. And if in the last case my tenant for life be disseised and my Auncestor doth release to the disseisor with warranty and die this is a good warranty to barre and bind me 8. That Litt. Sect. 734. the warranty doe take effect in the life time of the Auncestor and thâ—t he be bound by it for the heire shall never be bound by an expresse warranty but where the Auncestor was bound by the same warranty and therefore a warranty made by Will is void 9. That the heire claim in the same right that the Auncestor doth Co. super Litt. 370. for if one bee a successor onely in case of a corporation hee shall not be bound by the warranty of a naturall Auncestor 10. That Litt. Sect. 726. Co. 1. 67. 140. super Litt. 380. the heire that is to be barred by the warranty be of full age at the time of the fall of the warranty for if my Auncestor make a feoffment or a release with warranty and at this time I am within age and after he die and the warranty descend upon mee within age this warranty shall not bind me but if I become of age after the warranty of my Auncestor and before his death in this case the warranty may barre mee And in the first case it will barre me also whiles it is in â—orce but I may by my entry avoid it And the same Law is of a woman covert And yet if the entry of an infant or a woman covert be not lawful when the warrantie doth descend in this case the warrantie shall binde them as well as any other for such a warrantie cannot be avoided but by entrie and avoiding the estate And where the husband is within age at the time of the descent of a warranty to his wife and the entrie of the wife is taken away there the warranty shall bind the wife If lands be given to A for life and after to the next heir male Co. 1. 66. 44 Ed. 3. 30. 44 Ass pl. 35 of A and the heires males of the body of that heire male and A having issue B makes a feoffment of the land with warrantie to I S this is a good warrantie and a barre to the issue for a man may be barred of his right by a warrantie which hee could never avoid as where lessee for life is disseised and a collaterall Auncestor of the lessor doth release to the disseisor with warrantie and die and this doth descend upon the lessor by this he is barred A warrantie made for life or in taile is good and shall binde Litt. Sect. 738 Co. super Litt. 387. for so long onely as if tenant in taile of land let it for life the remainder to another in fee and a collaterall Auncestor doth confirme the estate of the tenant for life and die and the tenant in taile hath issue this is a barre to the issue during the life of the tenant for life And in this case upon a voucher the recovery in value shall be put for life onely If one make a gift in taile and grant to warrant the land given Co. 10. 96. according to the gift this warrantie is good no longer then the estate doth last And no warrantie that a donor can make in this case can bar him of the land if the donee die without issue and the estate determine And where a warranty doth bar it is entire and doth extend to Co. 8. 52. super Litt. 373. all the land and to all persons upon whom it doth descend and is a barre of all the right that every one of them hath in the land so that if they have all right jointly or severally or one onely hath all the right and the rest none he that hath the right is barred And therefore if lands be given to A and the heirs of his body and for want of such issue to E his sister and the heirs of her body and A doth make a feoffment with warrantie and die without issue having two sisters E and S this is a bar to E for the whole albeit the warranty descend on her and another If there be tenant for life the remainder to his sonne and heire Co. 5. 79. apparant in taile and the father doth a feoffement in fee with warrantie and dieth in this case this is a good warrantie and will bar the son albeit it be made of purpose to bar him But if by agreement and covin between him and A and B he make a lease to A who makes a feoffment in fee to B to whom the father doth release with warrantie thinking by a collaterall warrantie to bar his son this is no bar for this warrantie began by disseisin And if in the first case the son doth enter in the life time of the father upon the land he doth avoid the warrantie If the father bee tenant for life the remainder to the next heire Co. 1. 66. male of the father and to the heires males of the body of such next heire male and the father makes a feoffment to I S with warrantie and dieth it seems this warrantie is a good bar to the heir and in this case the heir cannot enter in the life time of his father for he cannot be heire male unto his father untill his fathers death If tenant for life make a feoffement with warrantie or be disseised Co. super Litt. 366. 365. Co. 1. 67. Stat. Glouâ— ch 〈◊〉 6. Litt. Sect. 724 725. and release with warrantie and he in reversion being heir to the tenant for life doth not enter but suffer the lessee for life to die and thereby the warrantie to fall and descend upon him in this case this warrantie generally is a bar without any
assets But if hee that doth so alien c. bee tenant by the courtesie this is no barre to the heire without assets in fee simple from the tenant by the curtesie and then it is a barre for so much And if the heire for want of this assets at the time doth recover the land from his mother and after assets doth descend from the father in this case the tenant shall recover the same land of the mother againe And if she that doth so alien c. to be tenant for Stat. 11 H. 7. chap. 20. Litt. Sect. 727. Co. super Litt. 365. life of the inheritance or purchase of her deceased husband or given unto her by any of the Auncestors of her husband or by any other person seised to the use of her husband or of any of his Auncestors in this case her alienation release or confirmation with warrantie shall not binde the heire whether hee have assets or not But if a man convey lands to the use of himselfe Co. 3. 58. B his wife and the heirs of his body and they have issue C and the father dieth and C disseiseth his mother or getteth a feoffement from a disseisor and then suffereth a recovery with a single voucher and after the wife doth release to the recoverer with warrantie in this case the warrantie is a barre to the issue and not void by the Statute of 11 H. 7. If the husband that is seised of lands in the right of his wife levy Co. super Litt. 366. 381. Stat. Glouc. ch 6. Litt. Sect. 332. a fine or maketh a feoffment in fee with warranty and the wife dieth and then the husband dieth this warranty shall not binde the heire of the wife without assets of other land in fee simple from the father albeit he be not tenant by the courtesie but it is before her death that he doth make the estate and the warranty But a Fine levied by the husband and wife in this case is a good bar to the heir If tenant in taile that is in of another estate i. either by disseisin Co. 3. 62. 22 Ass pl. 37. 29 Ass pl. 34. Fine or by the feoffment of a disseisor doth suffer a common recovery and a collaterall Auncestor of the tenant in taile doth release with warrantie to the recoverer and after the recoverer doth make a feoffment to uses executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case albeit the estate of the land be transferred in the post before the descent of the warrantie yet it shall binde So if hee to whom the warrantie is made suffer a common recovery and after the Auncestor dieth But if tenant in dower enfeoffe a villain with warranty and the Lord of the villain enter into the land before the descent of the warrantie and after the woman dieth this warrantie shall not binde the right of the heir So if a collaterall warrantie be made to a bastard and his heirs and living the Auncestor the Bastard dieth without issue and the Lord by escheat doth enter and after the Auncestor dieth this warrantie shall not binde A collaterall warrantie may descend upon an issue in taile before the right descend and yet be good with this difference that Litt. Sect. 7 H. Co. super Litt. 388 the right be in esse in some of the Auncestors of the heir at the time of the descent of the warranty as if tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile releaseth all his right c. to the disseisor with warrantie and dieth without issue and the tenant in taile hath issue and dieth in this case the issue is barred But otherwise it is where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warrantie as if Lord and tenant be and the renant make a feoffment in fee with warrantie and after the feoffee doth purchase the Seigniory and after the tenant doth cease in this case the Lord shall have a Cessavit for a warrantie doth never bar any right that doth commence after the warrantie If the case be so that if no such warranty had beene made by Litt. Sect. 703. 711. 8. What shall be said a lineall warranty And how such a warranty shall barre the father or other Auncestor the right of the lands or tenements so warranted had or might have descended or come from the same Auncestor and that from and by him that made the same warranty such a warrantie is a lineall warrantie As if a man bee seised in fee of land and make a feoffment of it to another and binde him and his heires to warrant the land and hath issue and die and the warrantie doth descend upon the issue this is a lineall warrantie for that if none such had been Co. super Litt. 371. the right of the land had descended to him as heire to his father and he must have made his descent by him And if there be grandfather father and son and the grandfather be disseised and the father release to the disseisor being in possession with warranty c. and dieth and after the grandfather dieth this is a lineall warrantie to the son and albeit in this case the warrantie descend before the right yet it is a good bar And if there be two brothers Litt. Sect. 707. and the father is disseised and the eldest brother doth release with warranty and die without issue and after the father dieth and the warrantie doth descend to the younger sonne this is a lineall warrantie to him And if lands be given to A for life Co. 1. 66 67. the remainder to his right heires and hee doth make a feoffment with warrantie and die this is but a lineall warrantie And if two parcenours be and the eldest enter into all the land to her owne use and then doth make a feoffment with warrantie and dieth without issue this as to her owne part is a lineall warrantie but as to her sisters part is a collaterall warrantie And in every Co. 8. 52. New Terms of the Law tit Warrantie case where one doth demand an estate taile if any Auncestor of the issue in taile whether he had possession of the land or not hath made a warrantie and if the issue that were to bring a writ of Formedon may or might have by possibility by some matter that might have been done conveyed to himself a title by â—orce of the gift by him that made the warrantie this is a lineall warrantie As if a man be seised of land of an estate taile to him and the heirs of his body begotten and make a feoffment of it and bind him and his heirs to warrant it and hath issue and dieth this warrantie descending upon the issue is a lineall warrantie And if lands Litt.
Sect. 719. be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the donee doth make a feoffment with warrantie and hath issue a sonne and a daughter and dieth this warrantie is lineall to the sonne and if the sonne die without issue male it is a lineall warrantie from the father to the daughter But if the brother in his life time release to the discontinuee c. with warrantie c. and after dieth without issue this is a collaterall warranty to the daughter Litt. Sect. 714. If lands bee given to the husband and wife and the heires of their two bodies engendred and they have issue and the husband discontinue and die and after the wife doth release with warrantie and die this is a lineall warrantie And if lands be given to a Co. super Litt. 375. man and a woman unmaried and the heirs of their two bodies and they intermary and are disseised and the husband doth release with warrantie and dieth and after the wife dieth this is a lineall warrantie to the issue for all the land And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue and the middle brother doth release with warrantie and die without issue and after the father dieth and after the elder brother dieth without issue and after the father dieth and after the elder brother dieth without issue so that the warrantie doth descend to the younger brother this is a â—neall warrantie to him And if a father give land to his eldest son and the heirs males of his body c. the remainder to the second sonne c. if the eldest son alien in fee with warrantie c. and hath issue female and dieth without issue male this is a lineall warrantie to the second sonne And in all these cases of a lineall warrantie if Litt. Sect. 711 712. Doct. St. 152 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple it is a barre without any assets for the rule is That as to him that demandeth fee simple by any of his Auncestors he shall bee barred and bound by a lineall warrantie that doth descend upon him unlesse hee bee restrained by some Statute But it doth not binde the right of an estate in fee taile without assets for in that case the rule is That as to him that demandeth fee taile by writ of Formedon in the Descendor he shal not bee barred by a lineall warrantie unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie and then it is a barre for so much onely as doth descend to him no more And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die in this case the issue of that issue is not barred by this warrantie and assets But if the issue to whom the warrantie doth descend bring his writ of Formedon and is barred by judgement by reason of the warrantie and assets in this case albeit he alien the assets afterwards yet the estate taile is barred for ever If tenant for life do alien in fee with warrantie or be disseised Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty And how such a warranty shall bar release to the disseisor with warrantie and die and the warrantie descend on him in reversion or remainder this is a collaterall warrantie So if the lessee for life be disseised and a collaterall Auncestor of him in reversion release with warrantie and die and the warrantie descend on him in reversion this is a collaterall warrantie for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. St. 152. land And if a man seised of lands in fee have issue two sonnes and the father dieth and the younger sonne doth enter and doth alien the land with warrantie and die without issue this is now a collaterall warrantie that is descended on the elder brother And if a sonne bee disseised of his own land and bring an 21 H. 7. 10. Assise and after the father doth release to the disseâ—sor with warranty and dieth this warrantie that doth descend to the sonne is a collaterall warrantie And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne and after he doth make a feoffment wich warrantie and die before the entrie of his sonne so that the warrantie doth descend this is a collaterall warrantie If there bee Litt. Sect. 707. father and two sonnes and the father is disseised and the younger sonne doth release wiâ—h warrantie to the disseisor and die without issue and then the father dieth in this case the warrantie now descended is a collaterall warrantie If a lease be made Co. super Litt. 388. for life to the father the remainder to his next heir and the father is disseised and doth release with warrantie and dieth this is a collaterall warrantie to the heire And if the husband discontinue the right of his wife and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die and after the husband dieth this is a collaterall warranty and a bar to her And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow 234. Kelw. 78. writ of Formedon if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty this is a collaterall warranty as if tenant in taile discontinue the taile and die having issue and the uncle of the issue doth release with warranty to the discontinuee and die without issue so that the warranty doth descend on the issue in taile this is a collaterall warranty So if such a discontinuee make a feoffment in fee or be disseised and the uncle release with warranty to the disseisor or feoffee and die without issue and the warranty doth descend on the issue this is a collaterall warranty If a tenant in taile have Litt. Sect. 708. three sons and discontinue the tail in fee and the middle brother doth release to the discontinuee with warranty and after the tenant in taile dieth this is a collaterall warranty to the elder brother If one have issue three sonnes and giveth land to the eldest Litt. Sect. 716. and the heirs of his body and for want of such issue to the middle and the heirs of his body the remainder to the third and the heires of his body and the eldest doth discontinue the
taile in fee with warranty and die without issue this is collaterall to the middle sonne In the same manner it is in case where the middle sonne hath the same land by force of the same remainder because his elder brother made no discontuance but died without issue of his body and after the middle brother doth make a discontinuance with warranty c. and dieth without issue this is a collaterall warranty to the youngest sonne And in this case if any of the sonnes be disseised and the father that made the gift c. releaseth to the disseisor all his right with warranty this is a collaterall warranty to the son upon whom the warranty doth descend If lands be given to A and the heirs of his body and Co. 8. 52. Litt. Sect. 713. for want of such issue to E his sister and the heires of her body and A doth make a feoffement with warranty and die without issue having two sisters E and S this is a collaterall warranty to E. If lands be given to a man and the heires of his body begotten Litt. Sect. 741. who taketh a wife and hath issue a son by her and the husband doth discontinue the taile in fee and dieth and after the wife doth release to the discontinuee with warranty and dieth and the warranty doth descend to the sonne this is collaterall to him If tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile doth release to the disseisor with warranty in fee and dieth without ifsue and the tenant in taile hath issue and dieth this is collaterall as to the issue If tenant in tail have issue two daughters and die and the elder enter into all to her own use thereof make a feoffment in fee with warranty and die without issue this warranty as to the other sisters part is collaterall but not as to her own If Co. super Litt. 373. the husband and wife tenants in speciall tail have issue a daughter and the wife die and the husband by a second wife have issue another daughter and discontinueth in fee and dieth and a collaterall Auncestor of the daughters release to the discontinuee with warranty and dieth and the warranty descend upon both the daughters this is a collaterall warranty to them If lands be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the father die and the brother release with warranty and die without issue this is collaterall to the daughter If tenant in taile make a lease for life the Litt. Sect. 738. remainder to another in fee and a collaterall Auncestor doth confirm the estate of tenant for life with warranty and die and after the tenant in taile die having issue this is a good binding collaterall warranty during the estate for life And in all these and Litt. Sect. 712. Co. super Lit. 374. Co. 10. 96. Stat. of Glouâ— ch 3. Co. super Litt. 365. Stat. 11 H. 7 chap. 20. such like cases of a collaterall warranty whether the right bee the right of an estate taile or the right of an estate in fee simple that is to be barred it is a bar without any assets for in this case the rule is That a collaterall warranty is a barre to him that demandeth fee simple and also to him that demandeth fee taile without any other descent of lands in fee simple so that the heir on whom the same warranty is descend can never have the land so warranted whiles the warranty doth continue in force but is bound thereby except it be in some speciall cases restrained by Act of Parliament as where the husband alone during his wives life or after her death being tenant by the curtesie make a feoffement by fine or deed of his wives land which shee hath by descent or purchase with warranty this will not barre her heire without assets of other lands in fee simple descended from the same Auncestor that made the warranty Or where a wife after her husbands death shall alone or with her succeeding husband alien release confirm or discontinue with warranty the land she holdeth in dower or in taile of the gift of her former husband or any of his Auncestors this warranty is voidable and will not binde with assets If the son purchase land c. and after let it to his father or any Litt. Sect. 699 700 701 702. Finch 82. Co. super Litt. 〈◊〉 10. What shall be said a warranty that doth begin by Dissâ—â—sin And wâ—at such a warranty doth work other Auncestor for years or at will and he by his deed doth infeoffe a stranger and that with warranty and after dieth whereby the warranty doth descend upon the heire this warranty doth commence by disseisin So if tenant by Elegit Statute Merchant Guardian in Chivalry or Soccage or because of Nurture make a feoffement with warranty and this warranty doth descend on his heir this warranty doth commence by disseisin So if one that hath no right at all enter into my land and make a feoffement to another with warranty So if one Coparcenor enter into the whole land and make a feoffement in fee with warranty this warranty as to the one moity doth begin â—y disseisin So if father and sonne purchase lands to them jointly c. and the father alien the whole to another with warranty c. and after the father dieth this warranty as to the one moity doth beginne by disseisin But if the purchase bee to them two and the heires of the sonne it is otherwise for if the sonne enter in the life time of the father the warranty is avoided for all but if hee doe not enter then as to the fathers moity it is a collaterall warranty And if the purchase be to the father and son and the heirs of the father and the father alien with warranty c. in this case the warranty is good for the whole If the father be tenant for life the remainder to his son and heir Co. 5. 80. super Litt. 366. 367. in fee and the father by covin and consent of purpose to bar the heir by a collaterall warranty maketh a lease for years to the end that the lessee should make a feoffment in fee that the father may release to the feoffee with warranty and all this is done accordingly and the father dieth and the warranty doth descend to the sonne in this case the warranty shall be said to beginne by disseisin But if the father in this case make a feoffement in fee with warranty and die this is a good warranty to binde the sonne albeit it be done of purpose to bar him So if one brother make a gift in taile to another and the uncle doth disseise the donee and infeoffeth another with warranty the uncle dieth and the warranty descendeth on the donor and
warrant it in the same manner and plight as it was in the hands of the feoffor and hee shall vouch as of lands discharged And therefore if grantee of a rent grant it to the tenant of the land on condition and the tenant doth make a feoffment of the land with warranty in this case the warranty shall not extend to the rent albeit the feoffment be made of the land discharged of the rent And if a woman have a rent-charge in fee and she doth intermary with the tenant of the land and a stranger doth release to the tenant of the land with warranty this warranty shall not extend to barre any action to be brought after the death of the wife for the rent But if in this case the tenant make a feoffment in fee with warranty and dieth the feoffee in a cui in vita brought by the wife shall vouch as of lands discharged at the time of the warranty made So if tenant in taile of a rent-charge purchase the land and make a feoffment with warranty and the issue bring a Formedon of the rent the tenant shall not vouch c. All those that are parties to the warranty i. such as are named Co. super Litt. 365. 5. 17. 12. Who may take advantage of a warranty And how And against whom it may bee taken Assignes in the deed regularly shall take advantage of the warranty as if one doth warrant land to another his heires and assignes in this case both the heirs the assigns may take advantage of it and they both may vouch or â—ebut or have a warrantia cartae so as they come in in privity of estate for otherwise the heire or assignes cannot vouch or have a Warrantia Cartae and yet he may rebut notwithstanding in divers cases But those that are are not named for the most part shall not take advantage of the warranty and therefore if land be warranted to I S and not to him and his heirs or to him and his assigns or to him his heires and assigns in these cases neither the heire nor the assignee may vouch or have a Warrantia Cartae and yet in some cases where it is so the assignee or tenant of the land may rebut The warranty annexed to an Exchange a Partition by Dedi Co. super Litt. 384. and by homage Auncestrell doth alwayes goe in Privity and therefore an assignee in these cases can take no advantage of it And yet in the cases of Exchange and Dedi an assignee may rebut But the assignee of a lessee for life may take advantage of the warranty in Law annexed to his estate If one grant to warrant land to another his heirs and assigns in Co. 5. 17. super Litt. 384 385. this case the heirs or assignes heire of the assignee or assignee of the heirs of the feoffee or assignees of assignees in infinitum shall take advantage of the warranty And therefore if one infeoffe I S to have and to hold to him his heires and assignes and warrant the land to him his heires and assignes and A doth infeoffe B and his heires and B dieth in this case the heire of B shall vouch as assignee to A. And if one infeoffe A and B Habendum to them and their heires and warrant the land to them their heirs and assignes and A die and B doth survive and die and his heire infeoffe C in this case C shall take advantage of this warranty as assignee If one infeoffe A with warranty to him his heirs and assignes and A doth infeoffe B and B doth reinfeoffe A in this case neither A or his assignes shall ever take any advantage of this warranty And yet if B infeoffe the heire of A he may take advantage of the warranty If one make a feoffment by deed with warranty to the feoffee his heirs and assignes and the feoffee doth make a feoffment over to another by word without deed in this case the second feoffee shall have all the advantage of this warranty for an assignee by word shall have the same advantage that an assignee by deed shall have If a feoffment be made with warranty to a man and his heirs and assignes and he make a gift in tail the remainder in fee and the donee make a feoffement in fee this feoffee shall not vouch as assignee but he must vouch his donor upon the warranty in Law and yet he may rebut If lands be given to two brethren in fee simple with warranty to the eldest and his heirs and the eldest die without issue in this case albeit the other brother be his heire yet he shall have no advantage at all by the warranty because he comes in above the warranty But generally all that claime under the warranty shall take advantage thereof by way of rebutter albeit they can take no other advantage by it If one make a feoffment to two their heirs and assigns and one of them doth make a feoffment in fee this feoffee in this case shall not take advantage as assignee An assignee of part of the land shall take advantage of a warranty Co. super Litt. 385. as if a man make a feoffment of two acres with warranty to him his heirs and assigns and the feoffee doth make a feoffment of one acre of it to another in this case the second feoffee shall take advantage of the warranty as assignee And therefore herein there is a difference between the whole estate in part and part of the estate in the whole or in any part for if a man have a warranty to him his heirs and assigns and he make a lease for life or gift in tail in these cases the lessee or donee shall not take advantage of the warranty as assignes but they may vouch the lessor or donor upon the warranty in Law But if a lease for life bee made the remainder Co. super Litt. 384. in fee such a lessee may vouch as assignee upon the first warranty If the father have a feoffment made to him and his heirs with warranty and he make a feoffment to his son and heire with warranty in this case the son may take advantage of the first warranty after his fathers death If a man infeoffe a woman with warranty Co. super Litt. 390. and they intermary and are impleaded and upon the default of the husband the wife is received in this case she may vouch her husband Et sic è converso If a woman infeoffe a man with warranty and they intermary and are impleaded the husband in this case shall vouch himself and the wife He that comes into the land meerly by act of Law in the post as 26 H. 8. 3. 22 Ass pl. 37. 29 Ass 34. Co. 3. 62 63. the Lord by Escheat or the like shall never take advantage of a warranty and therefore if tenant in dower infeoffe a villain with warranty and the Lord of the villaine enter or
a feoffment bee to a bastard with warranty and hee die without issue and the Lord enter by Escheat in these cases the Lord shall never take advantage of these warranties But otherwise it is where a man comes to the land by limitation of use or a common recovery which is by the act of the party for if tenant in taile being in of another estate i. by disseisin or feoffement of a disseisor suffer a common recovery and a collaterall Auncestor of the tenant in taile doth realease with warranty to the recoveror and after the recoveror doth make a feoffment to uses which are executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case the terre-tenants may take advantage of the warranty by way of rebutter albeit the estate be transferred in the post So if hee to whom the warranty is made suffer a common recovery and after the Auncestor dieth the recoveror may take advantage of this warranty by way of rebutter for any man that hath the possession of land albeit he have no deed to shew how he came by the possession of it or how he is assignee may rebut the demandant and so barre him and defend his owne possession And therefore the tenant by the curtesie donee in taile that is in of another estate an assignee by force of a warranty made to a man and his heirs feoffee of a donee in taile may rebut and bar the demandant by the warranty If one infeoffe another of an acre of ground with warranty Co. super Litt. 376. 1 Ed. 3. 13. 5 H. 7. 2. and hath issue two sons and dieth seised of another acre of land of the nature of Burrough English in this case albeit the warranty descend upon the eldest sonne onely yet both the sonnes may be vouched And so also it is of heires in Gavelkind the eldest shall be vouched as heire to the warranty and the rest in respect of the inheritance And in like sort the heire at the Common law and the heire of the part of the mother shall bee vouched or the heire at the Common law may bee vouched alone at the election of the tenant And in like sort the heire at the Common law shall be vouched with the heire in Burrough English And so also a bastard shall be vouched with a mulier And if a man die seised of certain lands in â—ee having issue a sonne and a daughter by one venter and a sonne by another and the eldest sonne entreth and dieth and the land doth descend to the sister in this case the warranty doth descend on the son and he may be vouched as heir and the sister also may be vouched as heir to the land If two make a feoffment with warranty and the one die the survivor shall not be charged alone with the warranty but the heir Co. 3. 14. â—uper Lit. 386. 16 H. 7. 13. 48 Ed. 3. 5. of him that is dead shall be charged also And if two be bound to warrant land and both of them die the heires of both of them ought to be vouched and shall be equally charged And if the heir be vouched in the ward of three severall persons the one of them onely shall not be charged but they shall be charged equally If a woman an heir of the disseisor infeoff me with warranty afâ—er she is maried to the disseisee in this case I may take advantage of Co. super Litt. 365. this warranty against the disseisee and rebut him upon it if he sue me for the land So if the husband and wife sue me for the land of his wife and I have a warranty of a collaterall Auncestor of the husbands descended to him in this case I may make use of this to barre the husband and wife A warranty lineall or collaterall may be defeated determined or 13. When a warranty shall be said to be defeated determined or avoided And how Or not Co. super Lit. 392. 393. avoided in all or in part And this is sometimes by matter in law and sometimes by matter in deed If the estate to which the warranty is annexed be gone the warranty annexed thereunto is gone also And therefore if an estate Co. 10. 96. 1 2 3. 62 Lit. Sect. 741. Co. super Lit. 392. tail towhich a waranty is annexed be spent the warranty is determined And if a man make a gift in taile with warranty and after the donee doth make a feoffment and die without issue the warranty is gone So if tenant in taile discontinue the taile and the discontinuee be disseised or make a feoffment on condition and a collateral auncestor of the issue release to the disseisor or feoffee on condition with warranty and after the discontinuee doth enter upon the disseisor or on the feoffee for the condition broken in these cases the warranty made by the collaterall auncestor is gone So if a Seigniory be granted with warranty and the tenanâ—y escheat so that the Seigniory is extinct hereby also the warranty is defeated So if a collaterall Auncestor heretofore had released with warranty and then had entred into Religion this warranty had bound but if after he had been dearaigned the warranty had been defeated If the father make a feoffment to his sonne and heire apparant Co. super Lit. 384. Bro. Garranty 27. with warranty and die so that the warranty doth descend upon the sonne hereby the warranty is gone And yet if a feoffment be made to a man and his heires and he dieth leaving issue daughters in this case the warranty shall be divided and is not determined If tenant in taile doth make a feoffment to his Uncle and after Lit. Sect. 743. Co. super Lit. 390. Lit. Sect. 744. the Uncle doth make a feoffment in fee with warranty c. to another and after the feoffee of the Uncle doth reinfeoffe againe the Uncle and after the Uncle doth infeoffe a stranger in fee without warranty and dieth without issue and the tenant in taile dieth hereby the warranty made to the first feoffee is defeated So if the Uncle make the warranty to the feoffee his heires and assignes and take backe an estate in â—ee and after doth infeoffe another But if one make a feoffment with warranty to the feoffee his heires and assignes and the feoffee doth reinfeoffe the feoffor and his wife or the feoffor and a stranger in these cases the warranty is not defeated but doth continue still So if two doe make a feoffment with warranty to one his heires and assignes and the feoffee doth reinfeoffe one of the feoffors in this case the warranty is not gone And â—f in the first case the feoffee make an estate to his Uncle in tail or for life saving the reversion or a lease for life the remainder over c. in this case the warranty is only suspended If one make a feoffment or release with warranty and after is
Co. super Lit. 391. attained of treason or felony hereby the warranty is gone and albeit he doe afterwards obtaine his Pardon yet the warranty is not revived If a feoffment with warranty be made to two or more and they Co. 6. 12. being Jointenants doe after by deed make Partition by this the warranty is determined So if two Jointenants be and one of them disseise the other and he that is disseised doth recover in an assise and hath Judgement to hold in severally hereby the warranty is determined * Adjudge Hil. 22 Jac. B. R. Eustace Sholes case So if A and B be Jointenants of white acre for life and A by fine doth grant to B totum quicquid habet in tenemeutis hereby the warranty is gone But if a Partition be made by Judgement upon a writ by force of the Statute of 13 H. 8. this doth not defeat the warranty fallen to them but it shall be divided between them and they shall all of them take advantage of it If one enfeoffe three with warranty to them and their heires Co. super Lit. 385. and one of them release to one of the other two hereby the warranty is gone for that part But if one of them release to the other two in this case the warranty is not gone but doth continue and they may vouch upon it If one enfeoffe two men and their heires and one of them doth Co. super Lit. 385. make a feoffment in fee hereby the warranty is not determined but the other may take advantage of it notwithstanding If the party that hath the warranty or the estate to which the Co. super Lit. 393. 392. Lit. Sect. 748. Release warranty is annexed release to him that is bound to warrant all warranties or all covenants reall or all demands by either of these releases the warranty is gone So also if by a defeasance made Deseasance between the parties it be agreed the warranty shall be void by this defeasance the warranty may be avoided also Or if it be so agreed that the warrantee or his heires c. shall not vouch or have a Warrantia cartae by this the warranty is avoided in part If tenant in taile doth enfeoffe his Uncle which doth enfeoffe another Co. super Lit. 391. in â—ee with warranty if in this case the feoffee release the warranty to his Uncle hereby the warranty is extinct But if a gift in taile be made with warranty in this case a release made by the tenant in taile of this warranty will not extinguish it If the parties between whom the warranty is intermary hereby Co. super Lit. 390. the warranty is suspended during the coverture in some cases If tenant in taile doth make a feoffment in fee with warranty Co. super Lit. 330. and disseiseth the discontinuee and dieth seised this doth suspend the warranty If two make a feoffment in fee and warrant the land to the Co. super Lit. 393. feoffee and his heires and the feoffee doth release the warranty to one of the feoffors this doth not determine the warranty of the other as to the moity So if one doth infeoffe two with warranty and the one of them doth release the warranty this doth not extinguish the warranty for the other moity but it doth continue still A warranty also may lose his force by taking benefit or making use thereof for after a man hath once taken advantage thereof in some cases he can make no further use of it of which read Co. super Lit. 393. And now having done with Deeds in generall and some of the parts thereof in speciall we are in order to come to some speciall kinds of deeds wherein we will first begin with a deed of Feoffment CHAP. IX Of a Feoffment FEoffamentum i. Donatio feodi strictly and properly is the gift 1. Feoffment Quid. New termes of the law Co. super Lit. 9. Lit. Sect. 57. or grant of any honors castles manors messuages lands houses or other corporall immovable things of like nature which be hereditable to another in fee simple i. to him and his heirs for ever by the delivery of seisin and possession of the things given And from hence comes the word Infeoffe for by this word and the Infeoffe words Give and Grant as the most apt words for that purpose is this kind of conveyance most commonly made Hence also it is that he that makes this feoffment is called the feoffor and he to whom it is made the feoffee Also it is sometimes but improperly Feoffor Feoffee called a feoffment when an estate of freehold only doth passe This kind of conveyance albeit it may be made in most cases by 2. Quotuplex See West Sym. 1. part Sect. 235. Co. super Lit. 6. word without any writing â—et it is most commonly done by writing and this writing is then called a Deed or Charter of feoffment but hence is the division of a feoffment by word or a feoffment by writing The ancient formes and examples of these deeds are very briefe and and yet they had these parts contained in them 1. The Premisses 2. The Habendum 3. The Tenendum 4. The Reddendum 5. The Clause of warranty 6 The In cujus rei testimonium 7. The Date 8. The clause of Hiis testibus Haec fuit candida illius aetatis â—ides simplicitas quae paâ—câ—lis lineis omnia fidei firmament a posueruut * Co. super Lit. 49. 9. Co. 1. 111 112. Plow 554. 9 H. 7. 24. 39 H. 6. 43. Co super Lit. 237. Perk. Sâ—ct 210. 24 E. 3. 70. Co. 1. 121. Co. 6. 70. Bro. scire facias 88. Plow 423 424. And this manner of conveyance as it is the most ancient kind 3. The nature and operation of it of conveyance so is it the best and most excellent of all others and in some respects doth excell the conveyance by â—ine or recovery for it is of that nature and efficacy by reason also of the livery of Seisin evermore inseparably incident to it that it cleereth all disseisins abatements intrusions and other wrongfull and defeasible titles and reduceth the estate cleerly to the feoffee when the entry of the feoffor is lawfull which neither fine recovery nor bargaine and sale by deed indented and inrolled will doe when the feoffor is out of possession And it passeth the present estate of the feoffor and not only so but barreth and excludeth him of all present and future right and possibility of right to the thing which is so conveyed insomuch that if one have divers estates all of them passe by his feoffment and if he have any interest rent common or the like into or out of the land it is extinguished and gone by the feoffment And further it barreth the feoffor of all collaterall benefits touching the land as condition power of revocation writs of error attaint and the like
it may happen to be in possession reversion or remainder as where a use is limitted to me for life and after to him that shall be my first sonne in Taile this is only the possibility of a use for it may or may not be A Use at the Common-Law before the Statute hereafter spoken Coo. in Chudleighs care in toto Shelle â— case Kolwâ— 160. Dyer 12. Broo. Feoffâ—â— al uses in toto conscience 25. of was made was and where that Statute doth not take place is 3. The nature incidents and originall of it nothing but a meare confidence and trust colatterall to and distinct from the land annexed in privity of estate and to the person touching the land to this purpose that cestuy que use should take the profit of the land and the Feoffee or Terre-Tenant that was trusted should make estates and otherwise dispose of the land as the cesty que use in his life or at his death by his last Will and Testament should direct and appoint and if he made no disposition then that it should goe to his heir so that the Feoffee had the Free hold or sole property of the thing in him and cestuy que use had neither jus in re nor jus ad rem for if he against the Will of the Feoffee had entred into the land he had been a Trespassor but a bare confidence or trust for which the cestuy que use had no remedy but in Chancery upon breach of the trust and there to have the Feoffee imprisoned untill he perform the trust according to the order of the Court. And these uses to some purposes were reputed in Law as chattels and therefore were devisable by Will and to some purpose as hereditaments and a kind of Inheritance of which there was a possessio fratris c. and to some purposes neither chattels nor hereditaments for they were not esteemed Assets in the heire or Executor neither were they reputed as Commons Rents Conditions and such like Inheritances which are discontinued or taken away by the Alienation of the Terre tenant Escheat Disseisin c. but a use is not so And to every of these uses there were two inseperable Incidents Incidents of it confidence in the person and privity in the estate expressed by the parties or implyed by the Law and when either of these failed the use was either gone for ever or suspended for a time at the least And therefore if the Feoffee to use upon good consideration had enfeoffed another of the land that had not notice of the use the use had been gone for ever because howsoever here was a privity of estate yet here was no confidence in the person but if the Feoffment had been without consideration to such a one in this case the use had remained â—ill because the Law did imply a notice So also it Trin. 17. Ia. Cancellaria seemes the Law was when it was made in consideration of marriage only And if a Disseisor Abator or Intrudor had come to the possion of the land whereof the use was albeit he had notice of the use yet the use was suâ—pendâ— during their possession and they should not have been seised to use as the Feoffee was for they come not to the land â—n the per but in the post And if a Lord by Escheat Lord of a Villaiâ—e or one that had entred for Mortmaine or that had recovered in â— Cessavit c. had come to such land and had notice of the use the use had been â—ue for ever for these came to the land in thâ— post and above the usâ— And Tenanâ— in Dower and by the curtesy should not be seised to uses in being for all these wanted privity of estate And if there hâ—d been Tenant for life the remainder in Fee to the use of another and the Tenant for life had made a Feoffment in Fee to one that had notice of the uses this second Feoffee should not have stood seised to the first uses So if the husband had made a Feoffment in Fee of the land of his wife upon consideration and without any use expressed the wife should not have had a Subpoena because the Feoffee was not in privity of estate of the wiâ—â— And if cestuy que use for life or in Taile the remainder in Taile with divers remainders over in use had made a Feoffment to one that had notice he should not have been seised to the first uses causâ qua supra But otherwise it is of Commons Advowsons and such like appendants or appurtenants for if Tenant in Taile or husband in right of his wife make a Feoffment of a Mannor or of part of it with an Advowson appendant the Advowson at least after Presentment shall passe as appendant to the Mannor oâ— to part of the Mannor and not to the estate of the land which is discontinued by the Feoffment So if a Disseisor Abator Intrudor or the Lord by Escheat or the like shall have these things as annexed to the land or the possession of the land so that there is a difference between a use a warrantie and such like things that are annexed to the estate of the land in drivity and Commons Advowsons and other hereditaments that are annexed to the possession of the land And these Uses began first when the custome of property began and was brought in that one man knew his own from another The Originall of â—â— and why so much lands wâ—â—â—â—t in use Doct. Studâ— 9â— Coo. 1. 123. 12â— Stat. 17. H. 8. c. 10. in the preamble mans and then was to enjoy his own and not to be deprived of it without consent or order of Law for then he that had land had two things in him a possession of the land and power to take the profits of it and those being to be distinguished he might give the Free hold or Possession to another and take the profits himselfe and they were the rather allowed by the Law for a time as reasonable because they gave a man power to dispose of his land by Will which otherwise hee could not have done but in some speciall cases by custome of the place But in time this use was turned into an abuse and the greatest part of all the lands in the Kingdome especially in the time of the broyl between the houses of York and Lancaster were put in use partly of fraud and partly of feare which produced not a few inconveniences for thereby many were deceived of their just and reasonable rights as namely a man that had The mischief of uses cause to sue for his land knew not against whom to bring his Action or who was owner of it the wife was defrauded of her thirds the husband of being Tenant by the Curtesy the Lord of his Wardship Reliefe Harriot and Escheat the Creditor of his Extent for debt the poore Tenant of his Lease and other Purchasors of their
may passe by the name of wood as de 20. acris bosci c. Parsonages Rectories Advowsons Vicarages or Tithes impropriate West Symb. ubi supra passe not by the names de advocatione Ecclesiae but de Rectoria ecclesiae de S. cum pertinen ' But when the fine is but of a presentation to a Church onely it must be de advocatione ecclesiae de S. and not cum pertinen ' and of all Vicarages endowed the writ must be de advocatione vicariae ecclesiae de S. and not cum pertinen ' and where no vicarage is indowed it must passe under these words de advocatione ecclesiae de S. c. If part of an entire thing passe it must passe by these words de medietate tertia parte quarta parte c. as the Case is as de duabus partibus in tres partes dividend 8. acr terrae or de medietate omnium decimarum granorum et foeni de ter ' vocat ' le Blacklands cum pertinea in H. But if an entire thing as a Manor or Messuage be parted as if the Manor of S. be divided into two parts if the division be so made that the Manor of that part be not extinct and a fine be to be levied of a part of it it must passe by the name of the whole as de manerio de S. So if a Messuage and 23. acres be parted the part divided shall passe by the name of one Messuage and 10 acres of land and not by the name de medietate unius messuagii et viginti acr ' ter ' And if things be otherwise named then as before sometimes the fine will thereby lose his force in all and sometimes in part But if a thing be twice named in a writ of covenant as a Manor and a Hundred parcell of the same this will not hurt the fine The things that do passe by the fine must be named to lye in the Broo. Fines 44. 91. 9 E. 46. Shire Town Parish or Hamlet where it doth lie for a fine is good albeit it name the lands to lie in a Hamlet or in a town decayed but it is good to name the town wherein the Hamlet is and that with addition for distinction if there be divers towns of the same name in that county And if a Manor extend into divers Towns as into A. B. and C. it is good to expresse all or none as de Manerio de S. in A. B. and C. For if any of the towns be omitted none of the Manor in that town will passe but if the fine be of the Manor of S. cum pertinen ' and say not where it lieth this fine will cary the whole Manor And if there be divers Manors of one name as South S. North S. or the like it is safe to set down in the writ for the fine which Manor is intended to be passed howsoever the fine may be good of the Manor intended to be passed without the distinction The order of placing things in fines is First to set down the most 7 H. 6. 39. Plow 163. Regist 2. worthy things before things lesse worthy as a Manor before a Messuage a Castle before a Manor a House before land arable land before meddow meddow before pasture c. Secondly to set down things generall before things speciall as land being the Genus of meddow Pasture wood c. before them wood being the Genus to wood grounds as alnetum salicetum before them Thirdly to set down entire things before parts of things as de Manerio de S. medietate Manerii de B. Fourthly to set down particular things after this manner suagium tum lendinum umbare dinum ra tum tura cus ra Mes Tof Mol Col Gar Ter Pra Pas Bos Brue Mora ria cus tum caria ditus Iunea Maris alne rus red Sectare priora And yet if this order be not observed but the things be otherwise placed in the writ if it be suffered to passe the Fine will be good enough If either the Cognisor or Cognisee at the time of the Fine levied 4. In respect of the estate of the parties thereunto Stat. 27 E. 1. ch 1. 41 E. 3. 14. 44 E. 3. 36. 39 E. 3. 16. 17 E. 3. 62. 24 E. 3. 26. be seised of any estate of freehold in fee simple fee taile or for life n possession reversion or remainder whether the same be by right â—or wrong the fine will bee a good fine in this respect And therefore if one that is seised of land in fee simple or fee taile generall or speciall levy a fine of this land to a stranger this is a good fine So if a Strangere levy a fine to him of this land this is a good fine So also a fine levyed by or to a tenant for life of the land he doth so hold is good in this respect But hee must take heed of a forfeiture in this case for if tenant for life levy a fine Sur Cognisanc ' de droit Forfeiture come ceo c. to a stranger or levy a fine sur Grant Release to a stranger to hold to the cognisee for a longer time then for the life of the tenant for life howsoever in this case the fine be a good fine yet this is a forfeiture of the estate of the tenant for life whereof he in reversion or remainder may take present advantage And yet if such a tenant for life levy a fine sur Grant et Release to hold to the cognisee for the life of the tenant for life or grant his estate by such a fine to him in reversion or remainder or by fine or grant a rent out of the land for longer time then for his own life in these cases the fine is good 1 H. 7. 22. Co. 2. 56. 9. 106. there is no forfeiture of the state of the tenant for life So likewise if a fine be levyed to a tenant for life by a stranger who doth thereby acknowledg all his right to be in the tenant for life release and quite claim to him his heirs go no further this is a good fine no forfeiture of the estate of the tenant for life for his estate is not changed thereby and it may enure to him in reversion but if the stranger say further in the fine Come ceo que il ad de son done this is a forfeiture But if neither the cognisor nor cognisee be seised of any estate of freehold in possession or reversion of the lands whereof the fine is Co. 5. 123. 3. 88. 90. Super Lit. 251. 3 H. 7. 9. 5 H. 7. 41. 3. H. 6. 21. 27 H. 8. 4. levyed at the time of the levying of the same but have only a lease for yeares or not so much the fine is void and of no force as to any estranger howsoever it may be good between the parties by way of
c. And B. by the same Concord doe grant and render the land back again to A. for life without impeachment of wast the remainder to C. the wife of A. for her life the remainder to A. and his heires this is a good Concord and by this devise a Jointure may be and is oftentimes made to a woman And if a â—nture man would have a lease for life or yeers made of land by fine the Lease lessâ—e must by the concord acknowledge the lands to be the right of the lessor who is seised of the land as that c. And then the lessor must grant and render the same land back again to the lessee the conusor in the fine for life life or for a certain number of yeers as the agreement is reserving a rent with clause of distresse and this is a good fine and a common devise for this purpose But if the lessor be tenant in taile it seems this fine will not bind the issue in taile And yet if A. tenant in taile and N. doe by fine acknowledge the land to be the right of a stranger as that c. and then the stranger that is cognisee doth grant and render the land again to N. for life or yeers with clause of distresse c. and then grant and render the reversion to the tenant in taile this is a good fine and will barre the issue in taile also and will likewise passe the rent and the reversion to the tenant in taile So if a Stranger that hath nothing in the land levy a fine Sur cognisance de droit come ceo que il ad c. To him in remainder in taile depending upon an estate for life and the cognisee by the same fine render to the cognisor for tenne yeers to begin at Michaelmas following and dieth and all the proclamations are made after his death and the tenant for life dyeth after the time the lease is to begin this is a good fine and so a good lease to barre the issue in taile If A. B. and C. levy a fine to D. and D. render the land back again West Sym. ubi supra Co. 7. 38. to A. for life the remainder to B. in taile the remainder to C. in taile and the remainder to a stranger in fee this or any such like concord as this is good And if A and B joyne in a fine of a mesuage to C and D and to the heires of C who do grant and render a charg of 30l out of the land to A for his life to begin after the death B to be paid at the feasts of c. Proviso semper quod pred concessio pred annualis reddit ' 30l non aliqualit ' se extendat ad on erand personas dict' C D sed tantummodo ad oner and dict' mesuag ' tota vita ipsius A. and then they grant and render the mesuage to A during the life of H. the remainder to be in taile the remainder to the right heires of B this is a good fine But in such a fine sur grant render these things must be heeded 1. None may take the first estate 1 24. Ed. 3. 27. Bro. Fines 108. by the Concord but the Cognisors or one of them And therefore if A knowledge a fine to B and B render and grant the land to A. Habendum sibi E. uxori ejus and the heires of their bodies So if the husband levie a fine of his wives land and the Cognisee grant and render the land to the husband and wife this is not a good Concord 2. The render of the Rent must be to one of the 2 Co. 2. in the Lord Cromwels case 3 24 Ed. 3. 26. 14 H. 4. 31. Dyer 69. 33 34. parties to the fine and not to astranger 3. A man cannot reserve a lesse estate to himselfe then fee And therefore if A knowledge a fine to B and B render to A in taile the remainder to himself for life this remainder is void So if A by fine knowledge lands to B and B grant and render the land to the Conusor in taile the remainde to B in taile the remainder to B in fee the limitation of this estate in taile to B is void and he can never have execution of it So if A knowledge the lands to B and B doth grant and render to A 4 Co. 6. 33. for life 4. The agreement must bee possible and sensible for if there be three Conusors in a fine and the Conusee render to one of them for life or yeares a rent and grant the reversion to another of them for life or yeares rendring a rent and grant the reversion in fee or in taile to the third this is not a good Concord 5. There 5 44. Ed. 3. 22. 27 H. 8. 24. can be no condition or clause of re-entrie for not payment of rent inserted into the Concord and yet some hold a fine levied to one in taile upon a condition with a remainder over is good * Co. 3. 5. super Lit. 353. 5. 38. And such Concords as these of the last sort before ought not to be received and if they be received the fine in most cases may be avoyded for these â—aults but if a fine bee received with a condition inserted into the Concord this is a good fine and not avoidable by writ of Error or otherwise No single fine can be with a remainder over to any other person contained in it but it must be to the Conusee and his heirs only Plow 248. 2. No rent can bee reserved upon a fine that is Sur Conusance de 2 50. E. 3. 9 3 Co. 5. 38. droit come ceo c. but upon a fine sur grant render or sur concessit only for if one levie a fine sur conusance c. rendring rent this reservation is void 3. No single or double fine shall be received with any covenants or other agreements then are before mentioned but in all these cases also when the fine is received and levied it seemes it is good and unavoidable and that only the remainder in the first case the rent in the second and the Covenants in the last are void and the fine good for the residue A particular tenant as for life c. cannot surrender his terme 44 Ed. 3. 36. to him in reversion or remainder by fine but he may grant and release it to him by fine One may grant his tenements which H doth hold for life and 44 Ed. 3. 45. which after the death of H. ought to remaine to him to H. for life rendring rent with clause of distresse saving the reversion and a fine of this forme is good The manors and tenements contained in the writ may bee divided 44 Ed. 3. 11 45 Ed. 3. 12. as if a fine be levyed betweene A and B of two Manors and B doth acknowledge all his right
therefore it is held if such a Corporation as hath an absolute estate and authority of his possessions so as he may maintaine a writ of right thereof as Major and Communalty Deane and Chapter c. levie a fine of their lands they and their successors are barred presently but if a Bishop Deane or Prebend without assent of the Deane and Chapter or a Parson and Vicar without assent of the Patron and Ordinary had levied a fine this would not have barred the successor neither will it barre now with their assent for they are restrained by divers Statutes So also such persons are barred by the fines that are levied by others if they make not their claime in time as if one disseise a Corporation aggregate of land belonging to their Corporation and after levie a fine of it with Proclamations and they doe not make their claime c. within five years hereby they are barred 2. Where the Ancestor is barred by the fine there for Co. 9. 105. the most part the heire is barred also And therefore if tenant in taile be disseised and the disseisor levie a fine with Proclamations and the tenant in taile suffer five yeares to passe without claime c. hereby he and his issues are barred for ever so that the heire doth suffer for the laches of his Ancestor 3. The estates that shall be Co. 9. 104 5 124. barred by the fine are estates by the common Law or by Copihold in fee-simple fee-fee-taile or for life or for yeares the estates also of â—enant by Statute Elegit and of Gardeins in Chivalrie and of Executors that have land untill debts and Legacies be paid And therfore if one enter upon and put out a Copiholder of land and levie a fine thereof and the Copiholder suffer five yeares to passe and make no claime c. the Copiholder and his Lord both are hereby barred for ever And if a lease be made for yeares and the lessor or another before entrie of the lessee levie a fine with Proclamations and the lessee doth not not make his claime c. within five yeares hereby the lessee is barred of his interest forever 4. The Plow 378. Bro. Fines 123. Co. 5. 124. things whereunto these Statutes doe extend are lands and tenements and not a Rent or other profit apprender out of the land and therefore if I have a rent common or Estovers out of land or a way over land or power to sell the land and a fine is levied of the land it selfe and I doe not make my claime of my rent c. within five yeares yet I am not hereby barred of my rent c. And for this cause it is that if a tenant in ancient demesne levie a fine of his land and five yeares passe the Lord is not hereby barred to avoid it foâ— herein he claimeth not the land but his ancient Seigniorie 5. The time in which they must make their claim or bring Plow Lord Zouches case 370. their action that have present right and no impediment is within five yeares after Proclamation had and the time for them which have impediments is within five yeares after the impediments removed 6. The time within which they must make their claime Dyer 3. Co. 3. 86 91. Plow 373. or bring their action whose right doth happen afterwards if they have no impediment is within five yeares after the time that their right doth accrew and if there be any impediment within five years after the impediment removed 7. The persons whose right is saved and preserved are mentioned in the first and second Saving of the Statute of 4 H. 7. and they are strangers and not parties nor privies 8. They that have benefit by the first Saving of the Statute shall have none by the second Saving for he that will be within the second Saving to have benefit by it must be 1 Another person 2 The right must come and acrew to him first 3 It must come to him after the fine and Proclamations 4 His right must be upon some cause or matter before the fine 9. No fine shall Co. 5. 124. 9. 106. barre any estate in possession reversion or remainder which is not devested and put to a right at the time of the fine levied And therefore if one levie a fine of my land whiles I am in possession of it this fine will not hurt me So if the tenant of the land out of which I have a Rent or Common c. levie a fine of the land this shall not barre me of my Rent or Common for I am still in possession of this in the judgement of the Law So if there be tenant for life the remainder for life or tenant in taile the remainder in taile and the first tenant in taile or for life doe bargaine and fell the land by deed indented and inrolled and after levie a fine to the bargainee in this case the remainders are not barred albeit five yeares passe without claime for the Law in these cases doth adjudge them alwayes in possession So if I make a Lease for yeares of land rendring a rent and a stranger levie a fine of the land and the lessee for yeares payeth his rent to me duly in this case I am said to be alwayes in possession and therefore am not barred by this fine of my reversion So if there be a tenant by Copy or lease for life the remainder for life and the first tenant for life accept of a fine of the land with proclamations and 5 years passe without claime c. hereby he that is in remainder is not barred So if one have a lease for years of land to beginne in futuro and a fine is levyed of the land and five years passe after the terme beginne it seemes this is no barre because this estate is not put to a right And for the further illustration of all these things see the examples following c Stat. 4 H. 7. 32 H. 8. Co. super lit 372. 1 Co. 9. 138. 140. Dier 3. If tenant in taile levy a fine of the land intailed with proclamations 2. Issue in taile barred by the fine of his Ancestor or some other according to the statutes this is a barre to the estate taile wherein these things are to be known 1. That wheresoever the issue doth claime by the same title and must make his Conveyance to the lands by him that levied the fine there the fine will barre him and therefore if lands be given to the husband and wife in speciall taile viz. to them and to the heires of their two bodies issuing or the like or if the gift be to them and the heires males or females of their two bodies or to them and the heires of their bodies with the remainder to the right heires of the husband in fee and the husband alone levieth a fine with proclamations by this the issue in taile is barred And yet so as the
right of the wife is saved so as she makes her claime c. within five years after her husbands death d Dier 354 So if husband and wife tenants in speciall taile have issue and the wife die and the husband marry another wife and have issue and levy a fine Sur cognisance de droit come ceo c. and take backe by the same fine an estate in speciall taile the remainder over c. and die the issue by the first wife is barred e Co. 3. 90. So if tenant in taile be disseised or make a feoffment in fee and after levie a fine with proclamations to the disseisor or to a stranger the issues in taile are hereby barred for ever the continuance of the possession in a nother notwithstanding f Co. super Lit. 372. So if a gift be made to the eldest sonne and the heires of his body the remainder to the father the heires of his body and the father dyeth and the eldest sonne levy a fine with proclamations and dyeth without issue this shall barre the second sonne for ever for the remainder descended to the eldest g Cûria trin 21 Jac. Co. E So if lands be given to an eldest sonne and the heires of the body of his father the father being then dead and he levy a fine of this land this will barre the younger brother h Dier 3. But if the issue in taile doe not make his title by him that did levy the fine there the fine will not barre and therefore if my father be tenant in taile and his brother disseise him and levy a fine and he and my father dye this fine shall not barre me as issue in taile because I doe not make my title to the land by him but if I suffer five years to passe and doe not make my claime c. by this meanes I may be barred by the fine i Plow 435. And if the fine be levied of another thing then the thing it selfe entailed As if the tenant in taile grant by fine a Rent Common or the like out of the land intailed this fine will not barre the issue So if a Rent be entailed and the tenant in taile of the Rent disseise the terre-tenant of the land out of which the rent doth issue and then levy a fine of the land this is no barre to the issue of the Rent 2. Albeit the fine be a double fine 2 Co. 76. 3. 85. super Lit. 353. Bio fines 118. Dier 279. with a grant and render yet it is within these Statutes and will barre the issue in taile as well as a single fine so as the grant and render be of the land it selfe and not of any profit apprender out of it And therefore if husband and wife be tenants in speciall taile and they levy a fine with proclamations and the Conusee grant and render the land to them and their heires this fine will barre the issue in taile And if tenant in taile joyne with I. S. and levy a fine to a stranger and the stranger doth grant and render the land againe to I. S. for years and to the tenant in taile in fee afterwards the issue in taile is barred by this fine So if there be tenant for life the Remainder in taile and he in remainder in taile accept of a fine from a stranger and grant and render to the stranger againe for years with a remainder over hereby the issue in taile is bound k Plow 435. If tenant in taile accept of a fine of the land entailed from a stranger and then grant and render a Rent out of the land to the stranger by the same fine this will not bind the issue in taile to pay the same Rent l Dier 117. If tenant in taile make a feoffement on Condition and die having two sisters inheritable to the taile and one of them levy a fine with proclamations sur Release to the feoffee of the whole in this case it is doubted whether the other sister be barred of her halfe or not 3. Albeit the tenant in 3 Co. 3. 86. 87. 1 in Shelleys Case taile die before all the proclamations be finished yet when they be finished as they may be after his death the issue in taile are bound by the fine for howsoever by the death of the tenant in taile the right of the estate taile doth descend to the issue yet when the proclamations are passed this right that doth descend is bound by the Statutes and the issue cannot by any claime c. save the right of the estate taile that doth descend unto him 4. Albeit the 4 Co. 3. 84. 91. issue in taile be within age out of the Realme under Coverture non compos mentis or in prison at the time of the fine levied and the proclamations passed yet the estate taile is barred by the fine And therefore if A. be tenant for life of land the remainder to B. in taile the reversion to B. and his heires expectant and B. levy a fine to C. and his heires and hath issue and die before all the proclamations are passed the issue in taile being then out of the Realme the proclamations are made and after the issue in taile cometh into the Realme and claimeth the remainder in taile upon the land in this case the estate taile is barred for ever 5. These Statutes doe extend to fines levied by tenant in taile by 5 Co. 3. 90. Dier 279. Plow 435. Conclusion and the issue shall be bound by the fine of their Ancestor unto whom they are privy in estate and bloud albeit partes finis nihil habuerunt tempore finis And therefore if the issue in taile in the life of his Ancestor when he hath onely a possibility As if there be grandfather father and sonne and the grandfather be tenant in taile and the father levy a fine of the land before the grandfathers death and then the grandfather dye before the father and after the father dye in this case the issue is barred by this fine †Curia Trin 21. Jac. Com. B. Godfry Wades case Dier 48. so also if the grandfather survive the father But in case of a collaterall descent if the collaterall Ancestor die in the life time of his father without issue this fine is no barre but if he survive his father contra So if lands be given to the grandfather and his wife in speciall taile and the grandfather dieth and the father doth disseise the grandmother and doth levy a fine with proclamations the grandmother dieth and then the father dieth in this case the sonne is barred m Co. 3. 50 51. 9. 140. So if lands be conveyed in taile to a woman for her Jointure within the Statute of 11 H. 7. cap. 20. and whiles shee liveth the issue in taile doth levy a fine of the land by this the issues inheritable to the estate taile are barred for ever
n Plow 434 435. So if tenant in taile make a feoffement or be disseised and after levy a fine with proclamations for a stranger hereby his issues are barred for ever o Curia 21. Iac. Co. B. So if tenant in taile die and his issue before his entry having a freehold in law only doth levy a fine with proclamations this shall be a barre to his issues and to his collaterall heires and brothers of the halfe bloud p Idem So if a tenant in taile have foure daughters and one of them levy a fine in the life of the father this will be a barre to her issue for the fourth part of the land q Co. 3. 50 51. 9. 140. But in these cases before and such like where the issue in taile doth levy a fine in the life time of the tenant in taile the tenant in taile himselfe may after levy a fine of the land and thereby barre his issue and the Conusee also to whom his issue hath levied a fine and therefore in all these cases it is supposed that the tenant in taile doth dye and suffer the right to descend to his issue t Co. 10. 50. 9. 141. 3. 50 51. If lands be given by will to one when he shall come to his age of twenty four years to hold to him and the heires of his body and he after his age of twenty one years levy a fine of this land with proclamations this is a barre to the issue in taile If a disseisor make a gift in taile the donee make a feoffment to A. and after levy a fine with proclamations to B. that hath nothing in the land this fine will barre the issues in taile and they shall not avoid it by pleading that partes finis nihil habuerunt c. but it is no barre to the disseisee for he may avoid it by this plea when he will s Co. 3. 84. And à fortiori therefore if a fine be levied by the tenant in taile that hath only an estate of freehold in remainder or reversion is good as if A. be tenant for life the remainder to B. in taile and B. levy a fine albeit this be no discontinuance yet it is a barre to the estate Discontinuance taile t Trin. 21 Iac. Co B. Will. Godfrey versus Wades case But if tenant in taile have issue a sonne and a daughter and the sonne living the tenant in taile levy a fine and dye without issue and then the tenant in taile dieth by this the daughter and the estate taile is not barred So if the younger sonne levy a fine in the life of the father and then the tenant in taile dye this is no barre to the elder sonne So if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the sonne doth levy a fine of the land this is no barre to the daughter So if tenant in taile have a daughter his wife being with childe of a sonne and the daughter levy a fine and after the sonne is borne this fine shall not barre the sonne for these howbeit they be privies and heires to the bloud yet are not privies and heires to the estate 6. Albeit the estate passed by the fine be afterwards 〈◊〉 J Co. 3. 91. before all the proclamations had avoided yet the issue in taile is barred by it And therefore if tenant in taile discontinue in fee and after disseise the discontinuee and levy a fine with proclamations to a stranger and take an estate backe by Render in the same fine and the discontinuee before all the proclamations passe enter and claime and so avoid the fine yet hereby the estate taile is barred a Per Popham et Fenner Iust M. 39. 40. Eliz. B. R. And if tenant in taile infeoffe the issue in taile and after disseise him and levy a fine the issue enter and after the proclamations passe and after the issue in taile doth infeoffe the tenant in taile which levied the fine and dyeth it seemes this fine shall barre the issues in taile 7. This is a barre to the estate taile 7 Co. 1. 76. super Lit. 372. and to the issues onely and is no barre to him in remainder or reversion and therefore when the estate taile is spent this barre is at an end And therefore if an estate be limited to A. and B. his wife and the heires males of the body of A. the remainder to C. and A. and B. have issue and A. dye and B. and her issue or her issue alone levy a fine this will barre the issues of the issues whiles there be any but they faile it will not barre C. in remainder except he suffer five years to passe and so be barred by his non claime So if tenant for life and he that is next in the remainder in taile joyne in a fine this is a good barre to the issues in taile for ever as long as that estate taile shall continue but not to him that is next in remainder nor to any other that shall come in of any remainder in taile or in fee nor to him in reversion x Co. 10. 96. 9 Iac. B. R. If lands be given to A. and the heires males of his body the remainder to B. and the heires males of his body the remainder to the right heires of A. and A. doth bargain and sell this land by deed indented and inrolled to I. S. and his heires and after levy a fine of it sur Conusance de droit come ceo c. to him and his heires by this the remainder to B. is Discontinuance not discontinued but it is a barre to the estate taile by the Statutes and causeth the estate of the bargainee to last so long as the tenant in taile hath issues of his body but if the fine had been before the bargaine and sale it had been a discontinuance of the remainder but in neither case a barre to him in remainder unlesse he suffer himselfe to be barred by his non-claime within five yeares after his remainder happen to come in possession 8. If there be 8 Co. super Lit. 372 tenant in taile the remainder to him in taile and the tenant in taile levie a fine of this land hereby both his estates are barred Et sic de similibus y y Bro. Fines 121. Co. 6. 55. Dyer 4. Co. super Lit. 372. Co. 8. 17. 78. But all this notwithstanding If lands be conveyed to a woman in taile for her joynture within the Statute of 11 H. 7. chap. 20. and she levie a fine of this land this will not barre the issues in taile Or if lands be given in taile to any subject by the Kings own gift or provision and the tenant in taile levie a fine this fine shall not bind the issues in taile nor the King but others it will barre for these fines are
not intended within but excepted out of the Statute of 32 H. 8. but the King himselfe being tenant in taile of the gift of some of his Ancestors being subjects may levie a fine of it to barre his issues in taile And in all cases where a recovery will not barre the issues in taile there a fine will not barre them Albeit the fine of the husband and wife together of the wives Dyer 72. Plow 373. 2 Wife barred by the fine of her husband or some other land or of the land of the husband and wife together be a perpetuall barre to her and her heires for ever yet if the husband alone levie a fine with Proclamations of such land and then he die in this case shee is not barred of her right but if she doe not make her claime c. within five yeares after her husbands death she is barred of her right for ever notwithstanding the Statute of 32 H. 8. a M. 18. Jac. Co. B. in Anne Twists case And if one seised of land in fee mary a wife and after make a lease of this land to A. for life the remainder to B. in fee and B levie a fine with Proclamations and the husband die and the wife doe not make her claime c. within five years after the death of her husband hereby she is barred of her dower for ever notwithstanding the estate for life in A. but if the remainder of B. had been put to a right at the time of the fine levied she might have avoided the fine by Plea Quod partes finis nihil habuerunt c. b Dyer 224. Co. 2. 93. And if the husband levy a fine of his owne land and die and his widow having no impediment doth not make her claime within five yeares after his death hereby she is barred of her dower for ever c Dyer 358. If a jointure be made to a woman after the coverture and her husband and she levie a fine of it hereby without question she is barred of her jointure in this land but it is thought that this is no barre of her dower in the residue of the land of the husband and especially then when the fine is Sur conusance de droit come ceo c. d Dyer 351. If lands be given to a man and his wife in taile the remainder to the right heires of the husband and the husband alone levie a fine of this this will not barre the wife except she suffer five years to passe after his death without making claime c. and therefore if the fine be to the use of the husband and his heirs in fee he may dispose it as a fee simple and his issue hath no remedy If a man disseise me of the land I have in fee simple or fee taile 3. Disseisee and the like barred by the fine of the disseisor c. Co. 9. 105. 3. 87. super Lit. 298. and after levie a fine of this land with Proclamations and I doe not make my claime c. within five years after the Proclamations had hereby I and my heires are barred for ever of this land And if I being such a tenant in fee make a lease for years or be the Lord of any Copyhold estate and my lessee for yeares or Copyholder in fee or for life be ousted and I thereby disseised and the disseisor levie a fine and neither I nor my lessee for yeares or Copyholder doe make any claime c. within the five years after the fine levied hereby we are all barred for ever And if one disseise me of land and after make a lease for life of it and then levie a fine with Proclamations and I suffer five yeares to passe hereby I am barred both of the reversion and of the estate for life also If tenant for life make a feoffment in fee and the feoffee levie Plow in Stowels case a fine with Proclamations and he in reversion or remainder doe not make his claime c. within five years hereby he is barred for ever If I pretend right or title to land and enter upon it and put him Co. 3. 79. out that is in possession and then I levie a fine with Proclamations with an intent to barre him and he doth not make his claime c. within five years hereby he is barred for ever albeit he had the true right and I no right at all If I purchase land of H. and after perceiving my title defeasible and that a stranger hath the right of the land I doe levie a fine Co. 3. 79. Doct. St. 83. 155. to or take a fine from another with Proclamations with intent and of purpose to barre him that hath right and he suffer five yeares to passe and doth not make his claime c. hereby hee is barred of his right for ever And in these and such like cases there is no reliefe Equitie to be had in equity See more in Numb 11. infra If there be tenant in taile the remainder in taile and the tenant 9. Where a Fine shall be a barre as to one person and not to another or as to one part of the land and not to another Co. 10. 95. 9. 106. in taile bargaine and sell the land by deed indented and inrolled and after levie a fine with Proclamations to the bargainee Sur Conusance de droit come ceo c. in this case as to the tenant in taile and his issue this is a barre but as to all others it is no barre albeit they never make any claime c. So if tenant in taile levie a fine of his intailed land this is a barre as to him and his issues but as to all others it is no barre at all and therefore he in remainder or reversion in their times may enter notwithstanding e Co. 9. 140. 142. So if lands be entailed to the husband and wife and the heires of their two bodies and the husband alone levie a fine of this land this as to the husband tenant in taile and his issues is a barre but not as to the wife for she shall be tenant in taile still and yet it seems she may not suffer Recoverie a recovery of this land afterward So if a man attainted of felony or treason levie a fine of his land this as to the King and Lord of whom the land is held is void and is no barre to their advantage and title of forfeiture but as to all others it is a good barre f 7 H. 4. 44. F. N. B. 98. Plow So if one levie a fine of Lands in Ancient demesne and of other lands together this as to the lands in Ancient demesne is not good nor any barre at all but as to the other lands it is a good barre By the ancient common law he that had right was bound to Co. super Lit. 254. 262 make claime c.
same Court A recovery being matter of Record is much of the nature of a Co. 5. 41. 10. 37. 39. 3. 5. 6. 41 42. Doct. et Stud. 41. 49 50. stat 13 Eliz. cap. 5. 23. cap. 3. 7 11. 8. cap. 4. 4. The use nature and operation of it fine and such a thing as whereof the law taketh notice for it is now become a formall and orderly manner of Assurance of lands and one of the Common Assurances of the Kingdome or a common way and meanes to passe land from one to another And therefore if a tenant for life suffer such a recovery of his land it is a forfeiture of his estate an use may be averred upon it as well as upon Forfeiture Averment Covin a fine and it may be avoyded for covin as well as any other kind of conveyance But it is of speciall use and hath a speciall virtue to barre and binde estates in taile and all the remainders and reversions thereupon And because many of the Inheritances of the kingdome doe depend upon this Assurance and it is oft times the greatest security purchasors have for their money therefore it hath much favour from the law at this day And therefore the law will not endure it shall be disputed against for Communis error facit jus And hence it is that it shall not be avoyded for small errors for it is another rule of law Consensus tollit errorem And if a recovery be suffered by a tenant in taile hereby he hath not only discontinued barred and destroyed the estate taile and so defeated himselfe and his issues the former owner of the land and all the remainders and reversions thereupon that should take place after the estate taile whether they be in esse or contingent only but also all former estates leases and charges made by him in remainder or reversion Co. 1. 62. 25. Doct Stud. 49. 44 Ed. 3. 22â— for as when the estate taile in possession is not barred by a recovery the estates in reversion or remainder are not barred for Quod non in magis propinquo non in magis romoto valebit So it is è converso where the estate taile in possession is barred by the recovery all the remainders and the reversions Conditions charges incumbrances and estates dependent upon it are barred also except it be in some speciall cases where the remainder or reversion is in the King And therefore if A be tenant in taile the remainder to B in taile the remainder to C in fee and B or C doth make a lease for years of the land or grant a rent charge out of the land or enter into a Statute or the like or grant the remainder or reversion upon condition and after A doth suffer a common recovery of the land and after dieth without issue in this case the recoveror shall hold the land discharged of all these estates and charges in remainder But otherwise it is if A himselfe make a lease or enter into a Statute and then suffer a common recovery of the land in this case this recovery doth not avoyd but affirme the lease or charge for whereas it was before voydable by the issue in taile or him in remainder or reversion now it is good against them all and the recoveror also shall hold it charged and subject to the lease and charge of the tenant in taile This kind of Assurance therefore is in some respects better then a fine for a fine will barre the heire in taile but not him that is in the remainder or reversion but a recovery will barre them all In every good and binding common Recovery these things are 5. What shall be said a good Common Recovery And who shall be barred and bound thereby or not West Sym. ubi supra Co. super Lit. 372. requisite 1. That there be a demandant a tenant and a vouchee as the efficient causes thereof for if either of these be wanting it is not a compleat recovery And therefore if a common recovery be had against a tenant in taile without a voucher this is voyd And for this it is to be knowne that such persons and by such names may be demandants tenants and vouchees in recoveries as may be cognisors and cognisees in fines a Benets case Hobarts Rep. 275. Pasc Pasc 9 Jac. Earle of Newports case adjudged And therefore a recovery suffered by an Infant appearing by his Guardian is good and will Infant Woman covert bind him and all others b Co. 10. 43. Plow 515. 2 Doct. stud 52. Co. 5. 40 41. West ubi supra So also a recovery had against a woman that hath a husband being joyned with her husband will bind her and all others 2. That there be land demanded as the matter and that the thing be demandable And for this it is to be known that of such things and by such names as a writ of Covenant for the levying of a fine may be had a writ of entry for the suffering of a recovery may be had save only it may not be de fossato stagno piscaria un ' Carucat ' terre estoveriis homag fidelitat ' de servitiis â—aciendis de bovata marisci de selion ' terre de gardino cottagio crofto virgata terre fodina minerae mercatu nec de superiori camera And yet of some of these also it may be by other names Also a recovery may be had of a rent common advouson franchises and the like but not of an annuity 3. That it be had and Co. 3. 3. stat 23 Eliz. cap. 3. suffered in that order and forme as law requireth viz. that there be a writ of entry brought an appearance of the tenant in fait a voucher and an appearance of the tenant in Law the vouchee Judgement and Execution in manner as aforesaid for if there be any substantiall defect in these things the recovery may be thereby avoided by writ of error but if it be only in forme it will not hurt 4 That there be a lawfull tenant to the Precipe i. that the writ Dier 252. Co. super Lit. 46. 3. 6. of entry be brought against one that at the time of the writ brought is tenant of the â—reehold either by right i. that hath an estate for life at least in the land or by wrong i. that is a disseifor of the land demanded and whereof the recovery is had And therefore Co. 3. 6. super Lit. 46. Lit. Bro. Sect. 519. Plow 514 Doct. Stud. 49. See infra in this case the course is where the land to be recovered is in possession and a fine and a recovery is had of it together the fine is sued out first for this doth make the Conusee tenant of the free-hold of the land and then the recovery is had against him And when the recovery is to be had of a reversion and that there is an estate for life in being
taile c. with divers remainders over and the tenant for life doth suffer a common recovery in which he doth vouch A who doth vouch the common vouchee in this case this is a good recovery and doth barre the estate taile the remainders and reversion also And if one be seised of land in fee and have two sonnes A by his first wife and B and a daughter by his second wife and he devise the land to his wife for her life the remainder to B his sonne in taile and the reversion of the fee descend to A and the writ of entry is brought against the tenant for life and shee vouch B and he doth vouch the common vouchee and so a recovery is had without the assent of the heire in reversion this is a good recovery and a barre to all the estates in possession remainder and reversion And if a writ of entry be brought against the tenant for life and he make default after default and then the next in remainder in taile is received or he pray in aid of him in reversion or remainder and then they vouch over and so a recovery is had this is a good recovery and a barre to all the estates in remainder and reversion But if the writ of entry be brought against the tenant for life him in the remainder in tail together and they vouch the common vouchee and so a recovery is had this will be no good recovery to barre the estate taile †See before in fines Co. super Lit. 44. And if Sprirituall persons as Bishops Deanes Parsons and such like suffer a recovery of their Ecclesiasticall lands such a recovery is voyd and will not bind the successor * Plow Manxelscase Co. 10. 37◠1. 94. Plow 357. But if it be not in some such prohibited case as before and the recovery be had and suffered by and between such persons and of such things and in such a manner as aforesaid in such cases albeit there be in truth no warranty made upon which the voucher is had and albeit there be nothing to be recovered in value for that the vouchee hath no land to recover over in recompence and albeit that no execution be done in the life time of the party against whom the recovery is had yet is the same regularly a perpetuall barre to the parties against whom the same is had and their heires of all the estates they have in fee simple fee taile or for life in them and against all them in remainder or reversion and their remainders and reversions that are depending upon the estates with this difference The recovery with the Co. 3. 59. Lit. Bro. Sect. 38. Plow Manxels case 12 Ed. 4. 13. 13 Ed. 4. 1. single voucher doth not barre any estate but such as the tenant in taile hath in possession at the time of the recovery had so that if the tenant in taile be in of any other estate as by disseisin or the conveyance of the disseisor or the like this estate is not barred But the recovery with the double voucher doth bind and barre all interests estates and titles that the vouchee hath at the time of the entry into the warranty All which is further illustrated by the examples following c Co. 3. 5. 10. 37. If the writ of entry be brought against the tenant in taile and he vouch the common vouchee and so a recovery is had this recovery with a single voucher is a good recovery and a barre to the estate taile if it be then in possession and not put to a right and to all the remainders and reversions depending thereupon d Co. 1. 135. 136. 3. 59. 12 E. 4. 19. 13 E. 4. Co. 10. 45. So if lands be given to A in taile the remainder to the right heires of B B being then living and the writ of entry is brought against the tenant in taile and he doth vouch over the common vouchee this is a good recovery and a barre to the estate taile and the remainder also But if the tenant in taile be disseised and then suffer a recovery with a single voucher or the disseisor make a new estate in taile to the tenant in taile and then the tenant in taile doth suffer a recovery with a single voucher or if the tenant in taile make a feoffement in fee of land and then take back a new estate to himselfe from the discontinuee in taile or in fee and then doth suffer a common recovery with a single voucher by this recovery the entaile is not barred But by a recovery with a double voucher in these cases the estate taile is barred And therefore as where the tenant in taile doth levy a fine make a feoffement or bargaine and sell the land by deed indented and inrolled and the writ is brought against the Conusee feoffee or bargainee and he doth vouch the tenant in taile and he doth vouch the common vouchee this doth barre the estate taile and the remainders and reversion depending thereupon So if in these cases the conusee feoffee or bargainee doth make a new estate in taile to the conusor feoffor or bargainor or he disseise the conusee feoffee or bargainee and then levy a fine make a feoffement or bargaine and sell to another against whom the writ of entry is brought and he vouch the tenant in taile and he doth vouch the common vouchee by this recovery the first and second estate taile Co. 3. 5. Plow in Manxels case 1. 8. and all the remainders and reversion depending thereupon are barred So if lands be given to I. S. and the heires males of the body of his wife engendred and he hath issue a sonne and after his wife dyeth and he discontinue and take an estate to him and the heires females of the body of his second wife and after discontinue againe and take an estate to him and the heires females of his owne body and after discontinue againe and the writ of entry is brought against the last discontinuee and he doth vouch the tenant in taile who doth enter into the warranty generally and voucheth the common vouchee this is a good recovery and a barre to all the estates in taile and the remainders and reversions also And if A before the Statute of uses had been tenant in taile and had made a feoffement in fee to B and he and B had after made a feoffement to C to the use of A and his wife and the heires of their two bodies and then shee had dyed and after A had entred upon C the feoffee and made a feoffement to W in fee against whom I S had brought a writ of entry and he had vouched A the tenant in taile this had been a good recovery and a barre to all the estates And if lands be given to husband and wife and the heires of the body of Co. 3. 5. 6. 32. the husband with remainders over to strangers and
services reserved upon their leases that shall be due after the same recoveries had And also like actions for wast done after the recovery had And like remedy upon a disturbance in a Presentation to an advowson and in like manner and forme as the lessor should or might have had if the same recoveries had never been had albeit the same lessees doe never Atturne to the same recoverors And if a man make a lease for years to begin at Michaelmas reserving rent and before Michaelmas he suffer a recovery in this case the recoveror shall distraine for this rent which the lessor before the recovery could not distraine for But if the recovery had not been had he might have distrained A recovery may be defeated frustrated and avoided which is called 7. Where a Recovery may be avoided Or not And by whom And how the falsifying of a recovery in part or in all for many causes as for Stat. 23 El. cap. 3. Co. 5. 40. 21 H. 8. cap. 15. 〈◊〉 super Lit. 46. 104. Co. 3. 78. Dier 249. Co. 3. 4. 1. 62 5. 39. Plow 515. that there is some grosse and substantiall Error in the manner of the proceeding But a recovery is not avoidable for false or incongruous Latine rasure enterlining misentring of any warrant of Atturney misreturning or not returning of the Sheriffe or other Fauxiâ—ier de Recovery want of forme in words and not in matter of substance because it is done by the consent of the parties Or it may be avoided for that he against whom the writ of entrie is brought is not tenant of the freehold by right or wrong at the time of the writ brought as when the writ is brought against a stranger that hath nothing in the land and he doth vouch the tenant in taile in possâ—ssion of the land Or a recovery may be avoided for that he that hath the estate and the right is neither party nor privy to the recovery as when the writ of entry is brought against a disseisor and he vouch a stranger that hath nothing in the land or a recovery is had against the husband alone of the land whereunto his wife hath title of dower Or a recovery may be avoided for that another hath some estate in the thing whereof the recovery is had at the time of the recovery suffered as when there is a recovery had of land whereof there is alease or estate for years by Statute Elegit or the like Or it may be avoided for that the recovery is had by covin as when it is suffered by tenant for life to diâ—â—â—herite him in reveâ—sion or when it is gotten by some undue practise and sinister dealing for in this case it is sometimes made void by a Vacat or sentence of a Court. And where a recovery is avoidable or reversable for any of these or such other like causes it must be avoided by him whom it doth concern that is barred and bound by the same recovery that should have had the land if the same recovery had not been and not by any other whom it doth not concerne As if an erroneous recovery be suffered by tenant in taile in this case his issues or if they faile the next in remainder or reversion shall defeat it So also if the land be recovered against a stranger the tenant in taile shall avoid it And if the land be recovered against a disseisor the disseisâ—e shall avoid it And if the land be recovered against him in reversion or remainder the tenant for years by Statute or Elegit shall avoid it but in these last cases they shall falsifie and avoid it during their particular estates only So also the wife shall falsifie the recovery suffered by her husband alone as to her title of dower only and no longer and further And he in the reversion or remainder shall falsifie and avoid the recovery suffered by the tenant for life either in the life time of the tenant or afterwards But neither he in reversion or remainder or any one by or under him or any other can falsifie a recovery suffered by the tenant in taile in possâ—ssion except it be for some such causes as before And the recoveror himselfe cannot falsifie a recovery So neither can a Gardian or a tenant of a Manor as if one hold land of a Manor and a stranger recover the Manor by a feigned title a tenant of the Manor cannot falsiâ—ie this recovery And in all these cases where a recovery is avoidable and a man hath power given him to falsifie he must doe the same sometimes by writ of Error as in the case of an erroneous proceeding and sometimes by pleading and the setting forth of the speciall matter as in the case where the tenant is not tenant of the free hold or when the recovery is had by covin against the tenant for life or the like and sometimes by the shewing and setting forth of the practise to the Court and a motion made that a Vacat may be made upon the Judgement for the causes alleaged And thus having done with the CoÌ„mon Assurances that are made by matter of record we come to the Common Assurances that are made by matter of Fait viz by Deeds and Instruments of writing in the Country wherein we must stay a while upon the learning of Deeds in generall and from thence we shall descend to the particular kinds of Deeds CHAP. IIII. Of a Deed. A Deed is a writing or Instrument written in paper or parchment 〈◊〉 A deed Quid. Termes of the Law Co. super Lit. 35. sealed and delivered to prove and testifie the agreement of the parties whose deed it is to the things contained in the deed All deeds are either Indented or Poll. The deed indented Termes of the Law Co. super Lit. 229. 143. 38 H. 6. 25. 〈◊〉 Quotuplâ—â— Indenture Deed â—oll which is that which is called an Indenture is when the paper or parchment is cut and indented And it is defined to be a writing containing a Conveyance bargaine contract covenants or matter of Agreement between two or more and is indented in the top or side answerable to another that likewise doth comprehend the selfe same matter And this is so called because it is so indented for albeit it be called an indenture and begin in these words Haec Indentura c. yet if it be not actually indented it is no Indenture And of the other side if it be not so called or these words be omitted yet if it be indented it is an Indenture And this was anciently called Charta cyrographata vel Communis because each party had his part The deed poll is that which is plaine without any indenting when the parchment or paper is polled or cut even And this was anciently called charta de una parte And this is single and but one which the feoffee grantee or lessee for the most part hath The deed indented is also sometimes
therefore if there bee tenant in taile the remainder in taile or in fee and he in the remainder perceiving the tenant in taile doth intend to sell the land and barre him by a common recovery doth sell his remainder by deed inrolled to the King and after the tenant in taile doth sell the land by common recovery for good consideration in this case the purchasor shall avoid this deed to the King whereby also appeareth that a fraudulent conveyance within this statute may be by way of bargaine and sale And so was it ruled by the Lord Chiefe Justice Hide in evidence to a Jury at Guildhall 3. Car. And if there be a lease for years and the lessor make a fraudulent conveyance in fee M. 4. Jaâ— Cowell Bart. case and then for good consideration maketh another lease to begin at the end of the former lease this conveyance shall be void as to the second lessee And if A make a lease to B for years upon good considerations Per. 2 Iust Hil. 18 Jac. B. R. and after he makes another lease to C of the same thing for the same term to begin at the same time upon good valuable consideration and B doth not discover this but drives this bargaine with C and is witnesse to this second lease and the first lease is not excepted in the second lease it seems in this case the first lease shall be void as to C. And in all these and such like cases albeit the purchasor before he make his bargaine have notice of the fraudulent Co. 5. 60. Co. 3. 83. conveyance yet shall he avoid it as if he were ignorant of it But such conveyances and deeds made as before shall never be said to be fraudulent and void as against him that shall have the thing afterwards if he do not give a valuable consideration for it And therefore if one make a lease that would be fraudulent void as to such a purchasor to A and after make another lease bonâ fide to B but without any rent or fine given for it in this case the first lease shall not be said to be fraudulent as against the second lessee and therfore not void So if one covenant for the advancement of his heirs males c. to levie a fine of land by a day to the use of himself for life and after of his issue male and before the day he make a lease that is fraudulent for many years of purpose and after he doth levie a fine accordingly in this case this lease is good and shall not be said to be fraudulent and void by this Statute as against the issue in taile So if a man that is somwhat foolish and given to wast be perswaded to settle his lands upon some of his friends of purpose to maintaine himself with it and after some of his lewd companions inveigle him and get him for a small sum of mony to conveigh it to them in this case the conveyance first made shall not be said to be fraâ—dulent as against these purchasors and therefore it is good against them And if one that hath a terme for 60. years if he live so long make it away Co. super Lit. 3. and then hee doth forge a lease for 90. yeares absolutely and after by indenture reciting this forged lease for valuable and good consideration doth bargaine and sell this forged lease and all his interest in the land to I S in this case it seems that the first lease is not void and that the purchasor shall have nothing but the forged lease A deed also made of any thing with intent and purpose to deceive Stat. 3 H. 7. 4. 2 R. 2. ch 3. 1â— El. ch 5. Co. 3. 82. 2 To deceive creditors and others of debts and such like duties and defeate Creditors of their just debts and duties is void also as against such persons For it is provided to this purpose by other Statutes That all feoffments gifts grants alienations bargaines and conveyances of lands tenements hereditaments goods and chattells or any rent profit or commodity out of land made by fraud or collusion of trust to him that made the same or otherwise with intent to hinder and delay or put off or put by Creditors or others of their just and lawfull actions suites debts accompts damages penalties forfeitures hariots mortuaries or reliefes shall be void as against them to whom such thing shall belong and hee may recover the thing notwithstanding but all such as are made bonâ fide and upon good consideration are not to be accounted fraudulent by this Statute For the better understanding whereof these cases following are to be heeded If a man a little before his Co. 5. 60. 3. 82. Dyer 295. death make a conveyance of his land to his children or friends of his bloud with a proviso to make it void at his pleasure and he take the profits of it as his own or make a conveyance of it to friends to the intent they shall not be subject to the payment of his debts having bound himselfe and his heires by any especialty or to the intent that a warranty and assets shall not bind his sonne for other land or the like in this case this conveyance shall be void as to them that should have reliefe upon this land by the dissent and especially when the conveyance is made after suites begun and more especially when any judgment is had upon the suits against him that doth make the deed And so also is the law for goods And therefore if one be indebted to A 20l. and to B 40l Co. 3. 80. 83. Bro. Done 20. Plow 54. and be possessed of goods to the value of 20l. and A doth sue the debtor for his 20l. and hanging this suite the debtor secretly makes a generall deed of gift of all his chattels reall and personall to B in satisfaction of his debt and yet doth afterwards continue the occupation and use the goods as his own and after A getteth judgment and execution in this case the deed of gift to B shall be said to be fraudulent and therefore void as against A. So if in this case he give all his goods to B in satisfaction of his debt and before any suite begun by A with any expresse or implicite trust as to the intent that B shall be favourable to the debtor or that if the debtor provide the mony that he shall have the goods again or that he shall suffer the debtor to enjoy and use the goods and pay him as hee can in these and the like cases the deeds shall bee said to bee fraudulent and void for howsoever it bee made upon good consideration yet it is not made bonâ— fide So if one in consideration of naturall affection or for no consideration give all his goods to his child or cousin bonâ fide this shall be a void deed as to the Creditors Et sic de similibus
passe it one way or another Experientia there it may be good either way as where one doth make a feoffement in fee with a letter of Atturney to make livery and in the same deed doth covenant in case livery of seisin be not had to perfect the deed to stand seised to the uses of the feoffement in this case albeit no livery of seisin be made or atturnement had to perfect the feoffement or grant yet if it be in such a case where there is a consideration sufficient to raise the uses by the covenant the uses will arise by the covenant 3. When a deed may enure to divers purposes he to whom the deed is made shall have election which Co. super Lit. 301. Dier 251. way to take it and he may take it that way as shall be most for his advantage As if a deed of grant be made by the words Dedi concessi this in law may amount to a grant feoffement gift lease release confirmation or surrender and it is in the choise of the grantee to plead or use it the one way or the other So if a lease for Co. 2. 36. Dier 30. 302. years be made to me of land for mony by the words demise grant bargain and sell I may take and use this by way of bargain and â—ale or by way of demise at my pleasure So if one have a rent out Dier 109. 319. of land whereof I and my wife are jointly seised and he doth by his deed release give and grant this rent to me in this case I may use this as a release to extinguish the rent or as a grant of the rent as it may make most for my advantage Et sic de similibus But where any inconvenience may grow by such an election there the grantee shall not have an election but it shal enure as it may as where a man may passe land by the common law or by raising of use and setling Co. 2. 35 36. it by the Statute there sometimes it is so And therefore if in the same case before a father make a Charter of feoffement to his sonne and a letter of atturney to make livery and no livery is made hereby no use will arise to the sonne as it will in case of a covenant And if a lease for years be made of a Manor by the words bargaine sell demise and grant and this is to begin at a day to come in this case it must passe entirely as a demise at the common law or entirely as a bargaine and sale and the lessee hath not election to take or use it otherwise or to use it for part one way and for part another way 4. It shall enure as much as may be according to the apparent intent Finches law 58. of the parties And therefore it is that if a feoffement be made of a Manor with an advowson appendant or a bargaine and sale of land in possession and land in reversion together be made and the feoffement is not well executed for want of livery of Seisin or Atturnement or the deed of bargaine and sale is not inrolled in these cases albeit the advowson may passe without livery or atturnement and the reversion without inrolment yet because the intent doth appeare to be that all shall passe together therefore neither the advowson nor the reversion will passe by this deed 5. When a deed is made it shall enure as it may and so as it may have and take Plow 140. 59. Co. super Lit. 30â— the most and best effect that may be according to reason as if tenant for life or years and he in remainder or reversion in fee joine in a feoffement by deed this shall enure in the first case as the lease of the tenant for life and the confirmation of him in the remainder or reversion and in the last case as the feoffement of him in the reversion c. and the surrender of the lessee for years to the feoffee and and no forfeiture of the estate in the lessee for life But if in this case the feoffement be by word it seemes it shall enure first as a surrender of the estate of the tenant for life and then the feoffement of him in reversion ut res valeat And if A be tenant for life the remainder to B for life the remainder to D in taile the remainder to the right heirs of B and A and B joine in a feoffement by deed in this case this is the feoffement of A and confirmation of B but a forfeiture of both their estates whereof the tenant in taile may take present advantage If tenant for life grant a rent charge to him in Co. 5 15. Forfeiture reversion in â—ee and he by his deed doth grant this rent over to another and his heires this is a good grant and confirmation also to make the rent passe to the second grantee in fee simple So if a disseisor make a lease for life the remainder to the disseisee and the dissee doth grant the remainder over this is a good grant and confirmation also If A doe bargaine and sell his land to B by indenture Co. super Lit 147. and before inrolment they doe both grant a rent charge to C by deed and after the indenture is inrolled in this case after the inrolment this shall be said to be the grant of B and the confirmation of A and if the deed be not inrolled it shall be said to be the grant of A and confirmation of B. If one make a Charter of feoffement Co. super Lit. 21. of one acre of land to A and his heires and another deed of the same acre to A and the heires of his body and deliver seisin according to the forme and effect of both deeds it seemes this shall enure by moities viz. he shall have an estate taile in the one moity with the fee simple expectant and a fee simple in the other moity If Co. super Lit. 45. two severall tenants of severall lands joine in a lease for years by deed indented these be severall leases and severall confirmations from each of them from whom no interest passeth and doth not worke by way of Estoppell If B tenant for life of C and he in remainder Estoppell or reversion in fee of the same land joine in a lease for life or years by deed indented this shall enure during the life of C as the lease of B and the confirmation of him in reversion or remainder and after the death of C as the lease of him in reversion or remainder and the confirmation of B without any Estoppell If tenant in taile and he in reversion grant a rent charge in fee it shall bee taken the grant of the tenant in taile and the confirmation of him in reversion but when the tenant in taile diâ—th without issue it shall be taken the sole grant of him
construction be reasonable and according to an indifferent and equall understanding and therefore if I grant to another Common in all my Manor this shall be expounded to extend to commonable places only and not in my gardens orchards c. And if I grant to one Eâ—tovers out of my Manor he may not by this cut downe my fruit trees And if one grant me a Barrister a fee pro consilio this shall be taken for counsell in Law only And so in case of a Physitian And if one grant to me to digge in all his lands for Tinne I may not by this grant digge under his house And if one grant me Common for all my beasts this shall be taken for all my commonable beasts and not for goats and the like And if one grant me all his trees in his manor by this I shall not have his apple trees And if one lease to me his house and land to the end that I may make profit thereof in the best manner by this grant I may not prostrate the house or make wast 3. That too much regard be not had to the native and proper Plow 154. 170. 134. Dier 46. Co. super Lit. 223. 146. 217. Co. 9. 48. 10. 143. definition significations and acceptance of words and sentences to pervert the simple intentions of the parties for a manor may passe by the name of a mesuage or a Knights fee if it be used so to be called sic è converso a mesuage by the name of a manor a Remainder may be granted by the name of a Reverter a Reversion by the name of a Remainder for the law is not nice in grants and therefore it doth oftentimes transpose words contrary to their order to bring them to the intention of the parties and it is a rule of law Mala grammatica non vitâ—at cartam neither false Latine nor false English will make a deed void when the intent of the parties doth plainely appeare It is therefore held that two negatives doe not make an affirmative when the apparent intent is contrary And it is another rule of Law Falsa ortographia non vitiat Concessionem 4. That the construction be made upon the entire deed and that Plow 160. 161. one part of it doth help to expound another and that every word if it may be may take effect and none be rejected and that all the parts doe agree together and there be no discordance therein Ex antecedentibus consequentibus est optima interpretatio for Turpis est pars quae cum sâ—â—o toto non convenit Maledicta expositio quae corrumpit textum If a man make a feoffement of all his land in D with Common in omnibus terris suis this Common shall be intended in the lands granted in D only and not elsewhere for it must be understood secundum subjectam materiam 5. That the construction be such as the whole deed and every part of it may take effect and as much effect as may be to that purpose Lit. Sect. 283. Finches Ley 60. Plow 160. 154. for which it is made so as when the deed cannot take effect according to the letter it be construed so as it may take some effect or other Verba debent intelligi cum effectu Et benigne faciendae sunt interpretationes ut res magis valeat quam pereat And therefore if an Annuity be granted pro consilio impendendo or a feoffement made ad erudiendum â—ilium or ad solvendum 10 s. these shall be construed conditionall grants without any words of condition for otherwise the party will be without remedy 6. That all the words of the deed in construction be taken most Co. super Lit. 183. Finche of the Law 6. strongly against him that doth speake them and most in advantage of the other party Verba Cartarum fortius accipiuntur contra proferentem quelibet concessio fortissime contra donatorem interpretanda est And therefore if one seised of land in fee grant it to another and say not for what time this shall be taken an estate for life But this is to be understood with this limitation that no wrong be thereby done for it is a Maxime in Law Quod legis constructio non facit injuriam And therefore if tenant for life grant Forfeiture the land he doth hold for life to another and doth not say for what time this shall be taken an estate for his owne life and not the life of the grantee for then it would be a forfeiture So if one be seised of some lands in fee and possessed of other lands for years all in one parish and he grant all his lands in that parish without naming them in fee simple or for life by this grant shall passe no more but the lands he hath in fee simple So if a man have a house wherewith there hath been Copy hold land and other land usually occupied and he let this house and all his land thereunto belonging in this case and by this demise the Copy hold land doth not Co. super Lit. 112. passe for in both these cases then there would be a forfeiture But otherwise by these words all the lands in both cases would passe 7. That if there be two clauses or parts of the deed repugnant the one to the other the first part shall be received and the latter rejected except there be some speciall reason to the contrary and therefore herein a Deed doth differ from a Will for if there be two 4 El. the Bishop of Ely's câ—se repugnant clauses in a Will the first shall be rejected and the latter received 8. That that which is generally spoken be generally understood unlesse it be qualified by some speciall subsequent words as it may be for if one be seised of a manor wherein there is a Parke and Co. super 〈◊〉 42. he grant the manor with the custody of the Parke by this the Parke will not passe 9. That if the words may have a double intendment and the one standeth with law and the other is against law that it be taken in that sense which is agreeable to law and therefore if tenant in taile make a lease of land to B for term of life and doe not mention for whose life it shall be this shall be taken for the life of the lessor 9 Ed. 4. 4. and not for the life of the lessee as it shall be if such a lease be made by tenant in fee simple 10. That things doubtfully set down be applied to him to whom they doe properly belong As if I S make a feoffment to one of his own name and there is a covenant in the deed that I S shall deliver Co. 9. 48. 10. 143. the deeds this shal be taken of I S the feoffer and not I S the feoffee 11. That such a construction be made of abbreviations as the deed may not lose his force as if
and he grant this Forest Park Chase Vivarie or Warren Forest Park Chase Warren hereby not only the priviledge but the land it selfe doth passe But if the ground be anothers or if it be his owne and the grant be onely of the game c. in these cases the land or soil it selfe will not passe If a man be seised of a river and by his deed doth grant seperalem Fishing Co. super Litt. 4. piscariam or aquam suam in the same and maketh Livery secundum formam cartae by this grant doth passe onely a liberty to fish within the water and not the soile nor the water it selfe and therefore the grantor may take water still and if it be drie he may take the soile also And if one grant all his fish in his pond by this is granted a power to come and fish for them but the grantee Fitz. Barre 237. may not hereby dig a trench and let out the water to take the fish albeit they may not be otherwise taken If one bee seised of 20 acres of land and hee grant to another Vesture or Herbage of land Co. super Litt. 4. Dier 285. Trin. 5. Jac. B. R. accord and his heires the vesture or the herbage of it and maketh livery of seisin in it secundum formam cartae by this grant doth passe the corn grasse underwood sweepage and the like and for these things the grantee may have an action of trespasse for any wrong done to him But hereby the land it self the houses Profits of lands and great trees thereupon and mines therein doe not passe And if one grant the herbage or vesture of a wood hereby is granted the grasse and underwood onely and not the timber or great trees But if a man so seised of 20 acres of land grant to another the profits of this land To have and to hold to him and his heirs and maketh livery secundum formam cartae hereby the vesture herbage trees mines and all whatsoever parcell of that land doth passe If one grant to another all his deeds or all his muniments hereby 35 H. 6. 37. Deeds will passe all his charters feoffments leases releases confirmations letters of Atturney and the like If one give or grant to another Omnia bona or all his goods by Goods Co. super Litt. 118. 39 H. 6. 35. Dier 59. Perk. Sect. 115. 12 H. 8. 4. Bro. Grant 96. 51. Done 39. 47. Dier 5. Co. 8. 33. this doth passe all his moveable and immoveable personall and reall goods as horses and other beasts plate jewels and houshold stuffe bowes weapons and such like and his money and his corn growing on the ground also all the obligations and bils that are made to him and in his own name doe passe by this but not the debts due by such obligations and bils And some say that leases and terms of years of houses lands rents commons c. rents charge for years wardships of tenants in Capite and by Knights service and the interests that a man hath by Statute Staple Statute Merchant or Elegit doe passe by this grant but of this others doubt And if a man give or grant to another omnia catalla Chattels sua or all his chattels hereby doth passe as much as by the grant of all his goods and by this without question leases for years c. doe passe But by neither of the grants doe passe those goods or chattels which the grantor hath by delivery in keeping for another or the like Neither doth any estate of inheritance or freehold or the charters concerning any freehold passe under these words a Perch Just B. R. 21 Jac. Neither doth any thing in action as debts or the like nor hawkes hounds poppinjays or the like passe by this grant b Adjudged 3 Jac. Kelw. 64. 10. Col. 4. 1. Per Flemming Just 7 Jac. B. R. And yet if an Executor grant omnia bona catalla sua hereby the goods and chattels he hath as Executor as well as his other goods and chattels will passe And if one grant all his leases for years which he hath by any conveyances hereby the leases for years which he hath as Executor as well as other leases for years will passe If one grant to another all his Utensils hereby will passe all Dier 59. Utensils his houshold stuffe but not his plate jewels or any such like thing If a man be seised of land in feesimple or for life and have an estate Grant of all a mans estate right c. Co. super Litt. 345. Litt. Sect. 613. Plow 161. Co. 1. 153. in it for years by Statute Merchant Staple Elegit or the like and he grant all his estate or all his right or all his title or all his interest of and in the land by this grant all his estate and as much as he is able to grant doth passe And if tenant for life of land the remainder to the stranger in taile the remainder to the right heires of the tenant for life doe grant by these words hereby both his estates do passe And if a tenant in tail grant all his estate in the land hereby there doth passe as much as he can grant And all these words also doe cary and passe reversions as well as possessions And if a man have a tearm of years of land and he grant his tearm hereby doth passe the tearm of yeares and all his estate and interest of the land And note that by all these names these things may be granted Note and that for such things as are grantable without deed when Pitz Brief 581. they passe by a verball grant in any of these words the words shall have the same exposition as they have in deeds If one grant all his goods in such a place si quae fuerint by this H. 6. grant nothing doth passe but the goods that are in such a place at the time of the grant and not any other goods that shall bee there afterwards If two men have goods in common and have other goods severally Bro. Done 12. and they give me all their goods by this grant is given all their goods they have in common and likewise all the goods they have in severalty If â—wo tenants in common or others severally seised of land Plow 171. 140. Co. 10 106. join in the grant of a rent of twenty shillings or a horse out of the land whereof they are so seised by this grant the grantee shall have two twenty shillings or two horses If a man grant a rent of ten pound to me To have and to hold Bro. Grant 64. during my life and my wives life and after the death of my wife a rent of three pound to me for my life in this case if my wife die I shall have both the rents But if there bee any words of restraint or determination of
any estate in this case I S hath an estate for life only If lands be granted to A and B to have and to hold to them Dier 186. for their lives to the use of C for his life by this C hath an estate for his life if A and B live so long If a tenant in taile grant totum statum suum by this the grantee Lit. Sect. 613. Co. 1. 53. super Lit. 345. Plow 562. 162. Co. super Lit. 24. hath an estate for the life of the grantor and no longer And if a lessee for life grant all his estate hereby his estate for life doth passe for this is as much as he can lawfully grant If a man have a sonne and a daughter and die and lands be granted to the daughter and the heires females of the body of the father it seemes by this she hath only an estate for life If one grant land to another to have and to hold to her whiles Co. super Lit. 42. 234 235. she shall live sole or during her widowhood or so long as she shall behave her selfe well or so long as he shall dwell in such a house or so long as she pay 10 l. yearly or so long as the coverture between her and her husband shall continue or one grant lands to a man to have and to hold unto him untill he shall be promoted to a Benefice or the like in all these cases if livery of seisin be made according to the deed or if the grant be of such a thing whereof no livery is requisite the grantee hath an estate for his life and no more and that determinable also If one grant lands to I S. to have and to hold to him for life Co. super Lit. 183. 42. Plow 161. F. N. B. 168. and doth not say for whose life this regularly shall be taken for the life of I S the lessee and not for the life of the lessor But if the lessor himselfe have but an estate for life in the lands granted then the lease shall be construed to be and endure during that life only by which the lessor did hold to prevent a forfeiture And if he that doth make the lease be tenant in taile of the land this shall be taken to be a lease for the life of the lessor And if a tenant for life of land make a lease for years of it and then grant his reversion by the name of a reversion to another To have and to hold to him and his heires by this he hath only an estate for the life of the grantor and no more So if tenant in taile of land grant it to one for years and after grant his reversion to another To have and to hold to him and his heires this shall be construed to be an estate for the life of the tenant in taile and no longer and the atturnement of the tenants in these cases will not alter the cases And so it is in case of a Release also as if tenant in taile doth release to B being lessee for years of the land all his right to the land this shall be taken to enure but for the life of the tenant in taile and no longer as if a man retaine a servant and say not how long this shall be taken for a year Constructio legis non facit injuriam If one grant to I S that if he be not paid yearly for his life Co. super Lit. 147. Co. 8. 85. 40 s. that he shall distraine in the land of the grantor for it by this I S hath an estate for life in the rent And if a man by his deed grant a rent of 10 l. issuing out of all his land quarterly at the usuall feasts this is an estate for life of the grantee If one grant lands to I S and I D. To have and to hold to them Co. 5. 9. 11. 3. during their lives omitting these words and the longest liver of them by this notwithstanding they shall hold it during the life of the longest liver of them And if lands be granted to A To have and to hold to him during the lives of B C and D without any more words by this A hath an estate during all their lives and during the life of the longest liver of them * 38 Eliz. B. R. in the case of Ros Adwick And if lands be granted to A To have and to hold to him during his life and during the lives of B and C by this he hath a lease for his owne life and the lives of B and C and the longest liver of them But if a lease be made to I S of land to have and to hold to him during the time that A and B shall be Justices of Peace or during the time that A and B shall be of the Inner Temple or the like in these cases the â—ailer of one doth determine the estate †Adjudged B. R. 8 Eliz. Hobaâ—t Wisemores case And if a lease be made to B only To have and to hold to him and C for their lives by this B hath an estate for his owne life only and no more and C hath nothing at all And here by the way let it be observed in these and such like cases where lands are granted to one man to Co. super Lit. 41. 239. 388. Plow 556. 28. Dier 328. 321. 264. Co. 10. 98. Occupant have and to hold to him or to him and his assignes or to him his executors administrators and assignes during the life or during the lives of others and in most cases where a man is tenant pur auter vie i. for the life or lives of another or others if the tenant pur auter vie in possession die his estate shall not goe to his heires executors or administrators unlesse they can first get into possession after his death but he that can first get into the possession of the land after the death of the tenant pur auter vie shall have it for his life and after his death then he that can first get into the possession againe c. And therefore if the land were let by the tenant pur auter vie at the time of his death to any under tenant for years or for one year or at will and this undertenant be in possession at the time of the death of the tenant pur auter vie this undertenant shall have it for his life if the life or lives by which it is held so long live for the rule in this case is occupanti conceditur Et capiat qui capere potest And this estate is called an occupancy and he that hath it an occupant To prevent which mischiefe the lessee must take care when he takes his lease to have it made to him and his heires during the life or lives of him or them by whom it is held for in this case after his death his heire and none other shall
in Testaments Numb 8. Grant Numb 4. Leases cap. 14. Numb 4. And here note that parol-agreements and conveyances Note have the same construction for the most part made upon them as are made before upon deeds And therefore if a man by word of mouth without any writing grant all his lands in Dale to I S To have and to hold to him for life but doth not say for whose life this shall have the same construction as such a grant made in writing hath This is alwaies taken most in advantage of the feoffee grantee Co. 5. 111. 10. 106. 8. 71 Co. super Lit. 47. 213 214. lessee c. and against the feoffor grantor lessor c. and yet so as In the reservation of rent And how that shall be taken the rent be paid during the time And therefore if the reservation be only to the feoffor grantor c. and the deed doe not say also to his heires executors c. this reservation shall continue only for the life time of the grantor and shall determine with his death And so also it is where the reservation is to the feoffor or his heires in the disjunctive for in this case the rent shall continue only during the life of the grantor And yet if one make a lease for years rendring yearly during the said terme to the lessor or his heirs or executors this is a good reservation during all the terme by reason of these words during the terme So if the feoffor or lessor be seised in fee and make a feoffement in fee or lease for life or years rendring rent to the feoffor or lessor or his executors or assignes in Plow 171. 21 H. 7. 25. 27 H. 8. 19. Dier 45. this case the rent shall continue only for the life of the lessor But if the reservation be to the feoffor or lessor his heires and assignes in the copulative or in the disjunctive to him or his heires or to him and his successors if it be the lease of a Corporation during the terme then all the assignees of the reversion shall enjoy it And if the reservation be thus yeelding and paying so much rent without any more words this shall be taken for all the time of the estate and shall goe to him in reversion accordingly And if the reservation be rendring so much rent during the said terme and doth not say to whom in this case it shall be construed to be to him that hath the reversion and accordingly it shall be paid and shall continue during the term * So held in the case of Bland M. 8 Car. B. R. But if A be seised of land in fee and make a lease for years of it rendring rent to A without saying To his heires c. during the said terme this rent shall continue only during the life of A and no longer And yet if A be possessed of a terme only and make an under-lease or assignement with such a reservation Quere If the reservation be thus Yeelding and paying 20 s. during the said 27 H. 8. 19. terme omiting the word yearly this shall be taken to be not once only but yearly during the terme and accordingly it must be paid f Pas 21 Jac. Hudson Brent B. R. And if a lease be made for years rendring in every middle of the yeare quolibet medio Anni 20l. this shall be paid during the term If one by deed indented grant lands to A To have and to hold Co. 10. 107. to him for life the remainder to B and the heires of his body and for default of such issue to remaine to D in taile or for life yeelding therefore yearly c. in this case the reservation shall extend to all the estates If a lease be made the 10th day of August rendring rent at our Dier 130. Co. 5. 111. super Lit. 217. Lady day and Michaelmas in this case albeit our Lady day be first named yet the first payment shall be at Michaelmas next after the making of the deed If the reservation be at Michaelmas or within 20 daies after in Per Williams Yelverton Iust Ch. Iust contra 9 Jac. B. R. this case the 20th day shall be taken exclusive But if the rent be to paid at Michaelmas or by the space of 20. daies after in this case the 20th day shall be taken inclusive If a lease be made in December from the Nativity of Christ next for one yeare with this addition Et si in fine dicti Anni ambae partes Co. 10. 106. agrearent quod eadem dimissio foret renovata tunc habend tenend premissa dicto I S the lessee ab post dictum festum tunc proxim sequend usque finem trium Annorum Reddendo inde Annuatim durante dicto termino dict W S. c. in this case the reservation shall relate to both the terms and the rent shall be paid the first yeare although they doe not agree to renew the lease If two Jointenants by deed poll or by word make a lease for Co. super Lit. 214. life reserving a rent to one of them this shall goe to them both So if one of them be tenant for life and the other in fee and they joine in a lease for life or gift in taile reserving a rent the rent shall enure to them both But if tenant for life and he in reversion joine in a lease for life or gift in taile by deed reserving a rent the rent shall enure to the tenant for life only during his life and after to him in reversion If two tenants in common make a lease of their land rendring Plow 171. 289. Co. 10. 106. 20 s. rent this shall be but one 20 s. and not two 20 s. So if the lease be rendring a Hawke or a Horse by this they shall have but one Hawke and one Horse and not two Hawkes or two Horses as it shall be in cases where they doe joine in the grant of such things out of their land If one make a gift in taile of two acres of land the one at the Co. 10. 106. cōmon law the other in Burrow English rendring an oxe to him and his heires and the donee having two sonnes die and the eldest sonne doth inherite the one acre and the youngest sonne doth inherite the other in this case the donor and his heires shall have but one oxe c. If one make a lease of land for years if the lessee live so long Co. 10. 107 108. and after the lessor by his deed indented doth grant the land to another To have and to hold the reversion to the grantee for his life cum post mortem c. aut aliter acciderit vacare reddend inde Annuatim to the grantor and his heires cum reversio predicta acciderit 9 s. 4 d. per Annum in this case this reservation of rent shall not begin before the reversion
must be these things in the case 1. There must be a precedent particular estate as an estate in tail for life or years for a foundation to erect the subsequent estate upon and that first estate also must be certain and irrevocable not upon contingency or with power of revocation 2. The privity must remain untill the time of the performance of the condition for if the donee or lessee doe grant away the first estate the condition cannot afterwards be performed to effect and produce the encreasing estate 3. The subsequent estate must vest â—o instanti when the contingency upon which the condition dependeâ—h shall happen or never 4. The first and second estate must take effect by one and the same deed or else by two deeds delivered at the same time for quae incontinenti fiunt iâ—esse videntur 5. The condition upon which the increase is must be possible and lawfull for upon an impossible condition it cannot and upon an unlawfull condition it shall not increase If one make a lease for life provided that if the lessee die within Co. 1. 155. Dier 150. sixty years that his executors shall have the land for so many of the sixty years as shall be to come at the time of his death this is no good condition to make the estate to increase but it may be a Covenant And if a lease for years be made on condition that Covenant Co. 1. 84. if the lessor sell the reversion of the same land the lessee shall have the fee of it this is no good condition to increase the estate And a possibility cannot decrease upon a possibility as a lease for years Co. 8. 75. to a lease for life by one contingent the lease for life to a feesimple by another And if a lease be made to a man and a woman for Co. super Litt. 218. their lives on condition that which of them two shall first mary that one shall have the fee and they intermary in this case neither of them shall have the fee for incertainty If a man make a lease for life and adde this condition that if To â—bridge an estate Co. super Litt. 218. 50 Ed. 3. 27. the lessee within one year doe not pay twenty shillings that he shall have but a term of two years and he doe not pay the 20 s. by this his lease for life is gone and he hath now but a lease for two years If a lease be made on condition that if a stranger dislike it or be 2. For the matter substance of it 1 H. 8. 13. discontented with it that the lease shall be void this is a good condition If a lease be made on condition that if the lessee be outlawed the Hil. 6. Jac. B. R. Curia lease shall be void it seems this is a good condition If a feoffment be made on condition that if the feoffee commit Preâ—ogâ—ive Trin. 3 E. 6. per Curiam treason that the feoffor shall reenter in this case the condition is vain for if the feoffor enter his entry is not lawfull for the King is intitled and his title shall be preferred No condition or limitation be it by act executed limitation of a Testament Co. 1. 83. 6. 43. Co. 9. 128. use or by devise or last Will that doth contain in it matter repugnant and tending to the utter subversion of the estate or matter Use that is against law or matter that is impossible to be done is good And therefore in all such cases if the condition be subsequent the estate is absolute and the condition void And if the condition bee to goe before the estate the estate and the condition both are void If a feoffment or other conveyance be made of land or a grant of Repugnant conditions To restrain Alienation Co. super Litt. 223. rent c. in feesimple by deed or will upon condition that the feoffee or grantee shall not alien to certain persons as to I S or to I S and W S this is a good condition So if one make a feoffment in fee of land on condition that the feoffee shall not alien it in Mortmain this is a good condition So if A be seised in fee of black acre and B doth infeoffe A of white acre in fee on condition that he shall not alien black acre this is a good condition But if the condition be that the feoffee or grantee shall not alien the thing granted to any person whatsoever or that if he doe alien to any person that he shall pay a fine to the feoffor these conditions are void in the case of a common person as repugnant to the estate But in case of the King such conditions are good And in the cases of a common Pâ—erogative person also the alienation is good until it be avoided by the feoffor And in Pasc 19 Jac. B. R. it was held by Just Dodridge and Chamberlain that if a feoffment be on condition that if the feoffee alien he Bragge and Tanners case shall pay 10 l. to the feoffor that this is a good condition but Ch. Just and Just Haughton held the contrary for then this shal be a circumvention of the law If a gift had been made to an Abbot his successors on conditioÌ„ not to alien this had been a good condition Doct. St. 124. If one make a feoffment of land to an infant on condition hee shall not alien to any person this is a good condition during the Co. super Litt. 224. 10 H. 7. 11. 13 H. 7. 23. Co. 10. 30. Perk. Sect. 739. 21 H. 6. 33. minority of the infant but not afterwards In like manner as if one make a feoffment to a husband and wife on condition they shall not alien this condition to some intent is good i. to restrain alienation by feoffment or deed and to some intent repugnant and void i. to restrain alienation by fine for that is lawfull So if a gift be made in tail on condition that the tenant in tail may alien for the profit of his issues this is a good condition And so if land be given in tail upon condition that the tenant in tail or his heirs shall not alien in feesimple feetail nor for the term of any others life but for their own lives this condition is good But if lands be given in tail on condition that the tenant in tail or his heirs in tail shall not suffer a common recovery levy a fine with Proclamations according to the Statutes of 4 H. 7. and 32 H. 8. to bar the issues or on condition that he shall not make copyhold estates of copyhold land according to the custome of the place or make leases according to the Statute of 32 H. 8. ca. 28. these conditions are held to be repugnant and for that cause void And yet see for the last of these cases the opinion in
Or if lands be given or granted to an officer upon condition that he shall not duly execute his office this condition is against law and voidâ— Et sic de similibus So if a gift be made in tail upon condition that the donee shall discontinue or one give or grant Perk. Sect. 727. land on condition that the grantee shall be a forestaller against the Statutes these and such like conditions are void And hereupon it Co. 1. 24. 6. 43. is that conditions annexed to land that the profits thereof shall be employed to superstitious uses are void And hence also it is that Dier 343. Co. super Litt. 206. such conditions as are against the liberty of law as that a man shall not mary or the like are void And hence also such as are against the publique good And therefore it seems if one grant his land to I S Co. 11. 53. 7 Ed. 3. 65. on condition that he being a husbandman shall not sow his errable land this condition is void And in all these cases if the condition Perk. Sect. 722. 725. be subsequent to the estate the condition only is void and the estate good and absolute if the condition be precedent the condition and estate both are void for an estate can neither commence nor encrease upon an unlawfull condition * Co. 6. 41. super Litt. 207. 219. 206. Dier 252. 262. Plow 152. Perk. Sect. 935. 729. Plow 272. 286. Co. 1. 84. super Litt. 207. All conditions annexed to estates that contain in them matter Conditions impossible at the time of making of them impossible to be done are void And therefore if one give or grant land on condition that a man shall go to Rome in three days or condition that a man shal infeoffe a corporation when there is none such or if one give lands in taile on condition that the estate shall cease as if the tenant in tail bee dead or if one grant lands on condition that a man shall infeoffe his wife all these and such like conditions are void And in these cases also if the condition be subsequent the condition is void only and the estate is absolute and if the condition bee precedent the condition and the estate both are void for an estate can neither commence nor increase upon an impossible condition And if the thing to be done by the condition be possible at the time of the making of the condition and doe afterwards by the act of God become impossible the condition is become void and the estate absolute as if a feoffment be made on condition that the feoffee shall before Easter following enfeoffe the feoffor and the feoffee die before the day or on condition that the feoffee shal appear in such a Court before or at Easter and he die before the time in these cases the condition is gone and the estate is absolute And the same Law is for the most part of Limitations if they bee Limitation Co. 6. 41. 1. 84. repugnant impossible or against Law as is before shewed to be of Conditions See more in the next division following It is a generall rule That such conditions annexed to estates as 8. How a condition in deed or a limitation shall be taken expounded And how it must and ought to be performed 1. In respect of persons Co. 8. 90. super Litt. 219. 27 H. 8. 14. goe in defeasance and tend to the destruction of the estate being odious to the Law are taken strictly and shall not bee extended beyond their words unlesse it be in some speciall cases And therefore if a lease be made on condition that if such a thing bee not done the lessor without any words of heirs executors c. shall reenter and avoid it in this case regularly the heir executor c. shall not take advantage of this condition So if one make a lease for years of a house on condition that if the lessor shall be minded to dwell in the house and shall give notice to the lessee that hee shall depart in this case if the lessor die his heire executor c. shall not have the like advantage and power as the lessor himself for the condition shall not be extended to them And hence it is that if a lease for years be made on condition that the lessee shall Not to alien Dier 66. not alien without the licence of the lessor in this case the restraint shall continue only during the lives of the lessor and lessee and no longer And yet this rule hath an exception for if a man mortgage Co. super Litt. 219. his land to W upon condition that if the mortgagor and I S pay 20 s. such a day to the mortgagee that then he shall reenter and the mortgagor die before the day in this case I S may pay the money To pay mony and perform the condition But otherwise it is whiles the mortgagor doth live for in that time I S alone without him may not tender it and if he do this tender is no performance of the condition And in case where a condition doth tend to create an estate Litt. Sect. 352. Co. super Litt. 219 Co. 8. 60. there it shall have the most favourable exposition that may be and therefore in that case albeit the words be not satisfied yet if the intent be satisfied it sufficeth And therefore if one make To make an estate a feoffment in fee on condition that the feoffee shall make an estate back again in tail to the feoffor and his wife before such a day and before that day the feoffor die in this case the condition shall be performed as neer to the intent as may be and therefore if the condition be that he shall make the estate to them two Habendum to them and the heirs of their two bodies engendred the remainder to the right heirs of the feoffor the estate shall be made to the wife for life without impeachment of wast the remainder to the heirs of the body of the husband begotten on the wife And if A enfeoffe B on condition that B shall make an estate in frankmariage to C with such a one the daughter of the feoffor in this case albeit an estate in frankmariage may not be made yet an estate shall be made to them for their lives Et sic de similibus Conditio beneficialis quae statim construit benigne secundum verborum intentionem est interpretanda odiosa autem quae statum destruit stricte secundum verborum proprietatem est accipienda In all cases where a time is set for the doing or performance of Co. super Litt. 209. 208. 219. Co. 2. 79. 6. 31. Litt. 353â— Plow 30. Perk. Sect. 155. 779. 794 787. 793. 789. 788. 38 Ed. 3. 11. Dier 311. 2. In respect of time the matter contained in the condition be it to pay money make an estate or
the like it must be done at the time agreed upon and set down in the condition And in cases where it is to be done before a time certain it must be done before that time or else the condition is broken But in all cases where no time is set for the doing of the thing contained in the condition be it to pay money make an estate or the like if the act to be done bee to be done to the party that doth make the estate or be to be done to him and a stranger and be such a thing as is for the benefit of him that doth make the estate and for his benefit only there regularly the party that is to doe the thing shall have time to doe it during his life unlesse the party feoffor c. that doth make the first estate whereunto the condition is annexed doth hasten the doing thereof by request for if he request the doing thereof and set no time it must be done within a convenient time after that request and if he request and prefixe a time convenient when he doth desire to have it done it must be done at that time and in these cases the condition cannot be broken without a request so long as he to whom the estate upon condition is made be living And therefore To pay mony Testament in this case it is not like to a condition made by a Wil for if one devise his land to I S so as he pay the twenty pound to I D the Testator doth owe him and no time is set for the payment thereof in this case he must pay it as soon as it is demanded or he doth forfeit the land and the heir may enter But if the thing to be done be to be done to a stranger and be for the profit and benefit of a stranger only as if a feoffment be made on condition that the feoffee shall To mary I S. mary the daughter of the feoffor or on condition that the feoffee shall infeoffe a stranger and no time is set for the doing hereof in To infeoffe these cases the feoffee shall not have time during his life to doe it but he must do it in a reasonable time and that without any request at all or else he doth break the condition And in some speciall cases when the act to be done is to be done to the party himself the party shall not have time to doe it during his life as if one grant land To grant an Advowson or a rent to I S on condition that he shall grant an Advowson to the grantor for his life or on condition that he shall grant a rent charge to the grantor during his life to be paid at Michaelmas and our Lady day in these cases the grant of the Advowson must be before the Advowson fall and the grant of the rent must be before either of the days of payment come and that without request else the condition is broken And if the condition be that if I S do such an Perk. Sect. 9. 798. act that then the feoffee shall pay ten pound to the feoffor else To pay mony that the feoffor shall reenter and no time is set when the feoffee must pay this ten pound in this case it seems the payment must be as soon as the same act is done and that without any request at all And in case where the feoffee c. or a stranger be to doe an Co. super Litt. 209. act and he alone is to doe it and it doth nothing concern the feoffor c. as to goe to Rome or the like there the feoffee c. or stranger shall have time during his life to doe the thing and it cannot be hastned by request If lands be granted on condition that the grantee shall make a To make a lease Co. super Litt. 220 222. lease for life of other lands to the grantor the remainder to a stranger in this case the feoffee shall have all the time of his life to doe it if hee be not hastned by request But if the condition be to make a gift in taile to a stranger the remainder to the feoffor in this case it must be done in time convenient without request If the King licence his tenant to infeoffe A and B so as they give the land again to the feoffor and the heirs males of his body and he make a feoffment accordingly in this case it must bee reconveyed before the death of the feoffor or else the condition is broken If A infeoffe B of black acre on condition that if C infeoffe B Co. super Litt. 208. of white acre A shall reenter in this case C shall have time to do To infeoffe this during his life if B doe not hasten it by request If a lessee grant his estate to a stranger on condition that the To geâ— the good will of I S. Perk. Sect. 795. grantee doe get the good will of the lessor and no time is set when he shall get his good will it seems in this case he shall have time to get his good will during the terme and that although he deny it at the first yet if he grant it afterwards that this is sufficient When a time is set in certain for the payment of mony or the doing of any other thing generally neither agent nor patient are Litt. Sect. 342. Co. super Litt. 213. bound to aâ—â—end any other time And if the thing be to be done on a day certaine but no houre of the day is set down wherein the same shall be done in this case they must attend such a distance of time before the Sun set as may be convenient to doe that worke in And if the condition be to pay money at a place certain at any To pay money time during life in this case the money may not be tendred at any time in the place in the absence of him that should receive it but he that is to pay it must give notice to the other party before hand what time he will tender it that the other may be ready to receive it Or if at any time the parties hap to meet at the place a payment or tender then at that place is sufficient And the same law is for Obligation the most part in conditions of obligations In cases where a place is set down for the doing of the thing contained 3. In respect of place Co. super Litt. 210 211. 213. Litt. Sect. 343. 345. Bio Condition â—0 in the condition there it must always be done at that place unlesse by some agreement made between the parties afterwards another place be appointed otherwise the condition is not performed and the parties are not bound to attend in any other place But in cases where there is no place set down for the doing of the thing contained in the condition if the thing to
on condition and the lessee doth Co. 8. 92. not know of it and after the lessor doth by will give the land to the lessee without condition and the lessee doth such an act as is a breach of the condition in this case the condition is not broken for the lessee must have notice of the condition ere he can breake him If a lease be made rendering rent on condition that if the rent Doct. Stud. 35. 13 H. 4. 17. To pay rent be not paid within twenty daies the lessor shall reenter and the rent is not paid in this case the condition is broken but the lessor cannot enter untill he hath made a legall demand and if he die before he doe it his heire shall never take advantage of that breach but it is discharged for ever When an act is to be done in time convenient or otherwise and the party doe it not by the time appointed by law the condition is Li. Sect. 353. Plow 30. broken If one grant an annuity pro consilio impenso impendendo and the To give advise grantor require advise and the grantee refuse or neglect to give it 21 E. 3. 7. 8 H. 6. 24. Dier 369. this is a breach of the condition and a forfeiture of the estate And if the deed be that he shall goe to such a place to give counsell and he require him to goe thither and he refuse it this is a forfeiture of the estate But if he refuse to goe with him to another place or give counsell to his adversary being not required to give counsel to him this is no breach of the condition nor forfeiture of his annuity And if one had heretofore devised his land to be sold by his executors Lit. Sect. 383. to have been distributed for his soule the executors had not sold it in time convenient or had taken the profits to their own use this had been a breach of the condition See more in the last foregoing division and in Obligation Numb 10. Covenant Numb 7. The same law is for the most part of conditions of obligations See Obligation Numb 10. Every particular estate hath a condition in law annexed to it and Co. 2. 15. 8. 44. super Lit. 233. 11. When a condition in law shall be said to be broken Or not therefore if tenant for life in dower by the courtesie or after possibility of issue extinct lessee for years tenant by statute merchant elegit or the like make any absolute or conditional estate of the lands they hold in fee simple fee tail or for life give livery of seisin thereupon Forfeiture or levy a fine Sur conusance de droit or suffer a recovery of the land or the like this is a breach of the condition in law and a forfeiture of their estate Also if any such tenant except tenant in taile after possibility of issue extinct doe wast in the lands they doe so hold this is a breach of the condition in law and a forfeiture of their estate in so much as the wast is committed But if an Infant Infant Womencovert or feme covert that hath such an estate shall make any such estate c. this is no breach of the condition in law And yet if such a person doe wast this is a breach of the condition in law And so also if any such person be an officer and doe any thing which is a cause of forfeiture in another this will be a forfeiture in him or her also If any keeper of a Parke without warrant kill any Deere fell Co. super Lit. 223. or cut any wood and convert it to his owne use pull downe the lodge or any house within the Parke used for hay for the Deere or the like this is a breach of the condition in law So also if a keeper shall not looke to the game but the Deere be killed by his default and damage come to the Lord by this also the condition is broken But the not attending upon such an office for two or three dayes if the Lord have no speciall losse thereby is no cause of forfeiture Offices that are for the Administration of Justice or of clark ship in any Court of Record or concerning the Kings treasure revenue Co. super Lit. 234. account alnage auditorship c. have also conditions in law annexed to them and therefore if such officers shall sell their offices or misdemeane themselves in their offices by this the condition in law may be broken and they may forfeit them As no man may create or annex a condition to an estate but he 12. Who may enter for a condition broken And what persons shall take advantage of a condition or a limitation And what not Lit. Sect. 347. Plow 175. Co. 3. 62. 347. 5. 56. Dier 131. Co. super Lit. 214 215. Doct. Stud. 93. Perk. Sect. 830 831. 833 835. Plow 488 489. that doth create the estate it selfe so neither can a man give or reserve the power title or benefit of reentry and avoidance of an estate upon the breach of a condition to any other but to him or them or at least to one of them that doth make the estate his or their heirs executors and administrators c. for it is a rule of the common law That none may take advantage of a condition but parties and privies in right and representation as heires executors c. of naturall persons and the successors of politique persons and that neither Privies nor Assignees in law as Lords by Escheate nor in deed as grantees of reversions nor Privies in estate as he to whom a remainder is limited shall take benefit of entry or reentry by force of a condition And therefore if a man had made a lease for life reserving rent on condition that if the rent be behind the lessor his heires and assignes shall reenter and after had granted the reversion to a stranger this grantee should not by the common law have had benefit by this condition But if the lessor had died his heire or the Gardian in Chivalry or Socage of such an heire if he had been an Infant and inward might have taken advantage by the condition And if one had been possessed of a lease for years and had granted his terme upon condition and had died his executors or administrators might have had advantage of this condition And at this day the law is still the same as touching Privies in Co. super Lit. 202. 12. blood for an heire shall take advantage of a condition though no estate descend to him from the Ancestor And therefore if one be seised of land of the part of his mother and he make a feoffement in fee of it on condition and die and the condition is broken in this case the heire of the part of the father shall enter but as soone as he hath entred the heire of the
they shall bee decayed this is a good covenant And so also it is where these or the like words be inserted amongst other covenants And that the lessee shall pay ten shillings a year rent or that the lessee shall not alien these shall bee said to bee covenants unlesse it bee in such cases where there is some other meanes to inforce the doing of the thing As if in case of the rent there bee a clause of distresse Bro. Covenant 21. 26. Co. Dier ubi supra reentry or nomine penae And in all cases regularly where words that doe beginne the sentence be conditionall and have the effect of a condition and doe give another remedy there they shall not be construed to make a covenant as in the cases of condition before And yet if words of condition and words of covenant be coupled together in the same sentence as Provided alwayes and it is covenanted or the like in such cases the words may be construed to make a covenant and a condition both If a man make a lease for life by Indenture and therein are inserted Dier 150. Co. 1. 155. these words It is provided that if the lessee die within sixty Lease years that then his executors and assignes shall have the land untill the sixty years be ended to bee accounted from the date of the Indēture this albeit it be not a good lease yet it is a good covenant If a man make a lease for years and warrant it to the lessee his Bro. covenant 38. descent 50. 21 H. 7. 32. heirs and assignes during the term or he that hath right to the land confirme the estate of the lessee for years with warranty in these cases howbeit this be not a warranty nor in the nature of a warranty yet it shall be construed a good covenant in law for the quiet enjoying of the thing If the Lord grant to his tenant that he will not distrain him in Perk. Sect. 69. such a part of his land for his rent this shall be taken to be a good covenant by this word grant A covenant to do anything that for the substance matter of it is 2. In respect of the matter or substance of it See West Symb. in his first part toto infra Plow 308. 302. 27 H. 8. 16. Dier 13. 324 253. 251. Fitz. Covenant 1. lawfull or not to doe any thing that for the matter of it is unlawfull is good as if the grantor covenant that he is seised or possessed of a good estate of and in the thing he doth grant and hath power to grant it That the grantee shall quietly enjoy it That it is and shall be free from incumbrances That he will make further assurance if need be That if the grantee be evicted he shall pay no rent That the grantee shall pay rent That he shall discharge all dues and save and keep harmlesse the grantor That he shall not alien the thing granted or if he doe that the grantor shall have the first refusall thereof That he shall not doe wast That he shall have houseboot hayboot That the grantor or grantee shall repaire the old housing or build new That he shall pay and discharge all rents and payments issuing out of the land That he shall not fell trees or if he doe that he shall pay to the grantor so much in money for every tree That if he fell any underwood he shall fence it That he shall make an estate of land That he shall be quit of any suit service or payment That he shall give sufficient security to I S for an hundred pound he doth owe him and all these and the like covenants are good And generally where a condition for the matter See Condition Num. 7. of it is good a covenant comprehending the same matter is good also But if the matter required to be or not to be done by Against Law See Conditions against Law Numb 7. Dier 6. the covenant be for the substance thereof unlawfull then is the covenant void and doth not bind and therefore if one covenant to kil or rob a man or the like this covenant is void So if one covenant that he will maintain another in his suits or that he will not appear in Inquests or that he will break the peace or that hee will forestall corn or the like these covenants are void So if one be tenant in feesimple of land and he covenant that he will not alien it this covenant is void So if a man be a tradesman and he covenant 18 Jac. B. R. Jolliffe versus Broad Pas 19 Jac. B. R. Tanner versus Brag. that he will not use or exercise his trade this restraint if it be absolute and continuall it is void but if it be sub modo only as that he shall not use his trade at one time or in one City or Town onely this covenant may be good So if a man be by covenant restrained to sow the land which hath been used to be sowed and this be either absolutely or sub modo i. that if hee sow it hee shall pay thus much an acre for it these covenants have been held to be void Sed quaere how the law is now for it seems the Statute of 39 Eliz. ch 2. is discontinued If A owe mony to B and B owe mony to C and Hil. 20 Jac. Co. B. Maire versus Stapleton B doth make a letter of Atturney to C to sue A at his own charge B doth covenant with C that he wil not release the debt to A in this case albeit this be maintenance in C to sue at his own charge yet this is a good covenant and not against law So also if a Deane Trin. 14 Jac. Co. B. Tailors case and Chapter or the like covenant to renue a lease contrary to the meaning of the Statute of 18 Eliz. ch 11. it seems this is a good covenant And if the thing to be done by a covenant be in the nature Impossible 27 H. 8. 27. 4 H. 7. 4. of it impossible the covenant is void And therefore it is that if a man covenant to goe to Rome in three dayes or the like the covenant is void So if a man covenant to make a feoffment to his wife this covenant is void But if a man covenant to make a good estate of land to her in feesimple or otherwise or to find her maintenance or to give her so much by the year these are good covenants And generally there where the matter being in a condition will make See Condition Num. 7. the condition void because it is against Law there it being in a covenant will make the covenant void If a lessor covenant with his lessee that he shall and may have Dier 19. 115 houseboot hayboot plowboot c. by the assignment of the Bailiffe of the lessor this is a good covenant and
Summons ad warrantizandum And if the vouchee appeare he must plead to the vouchor and if he shew cause why he should not warrant that must be tried and this shewing of cause is called a Counterplea to the voucher but if he plead in a voidance of the warranty it is called a Counterplea to the warranty And Counterplea to the voucher Quid. Connterplea to the warranty Quid. if he cannot gainesay the warranty the stranger shall recover the land demanded against the vouchor and he shall recover as much other land against the vouchee of the lands he hath or had at the time of the voucher And this recovery of other land is called a recovery in value And if the vouchee hath at the time of the voucher and recovery no lands descended to him to answer the warranty Recovery in value Quid. but hath afterwards land happening to him by descent from that Ancestor then he may have a resummons and recover the land that doth after happen But if the Sheriffe returne upon the summons that vouchee is summoned he doth make default then he shall have a Magnum cape ad valentiam when if he make default againe the Judgement shall be given against the vouchor and he shall recover over in value against the vouchee and if the vouchee appeare and then make default the vouchor shall have a parvum cape ad valentiam and then if he make default Judgement shall be given as before But if the Sheriffe returne upon the summons he hath nothing whereby he may be summoned then may the vouchor have a writ called Sequatur sub suo periculo whereupon shall goe an Alias and Pluries and if the like returne be made the Sequatur sub suâ— periculo Quid. demandant shall have Judgement against the first tenant but he cannot recover in value against the vouchee And if the case be so the vouchee had a warranty from some other for the land he may dearaigne i. maintaine the warranty over and shall recover Dearaignment del Garranty Quid. in value over also against his vouchor in the same manner as before Or the warrantee to whom the warranty is made or his heires may at any time before they be impleaded for the land if they will F. N. B. 134. Co super Lit. 102. bring a Warantia Chartae upon the warranty in the deed against â—arrantia â—hartae Quid. the warrantor or his heires and hereby all the land the heire of the warrantor hath by descent from the Ancestor that made the warranty at the time of this writ brought shall be bound and charged with the warranty into whose hands soever it goe afterwards so that if the land warranted be after recovered from the warrantee he shall recover so much land over againe of the other land of the heire of the warrantor or of the warrantor himselfe if he be living And albeit the warrantee or his heires doe recover in this writ yet he may after upon occasion vouch the warrantor or his heires notwithstanding And herein observe it is good policy if a man suspect any thing to bring this writ of Warrantia Chartae betimes because it binds all the land of the warrantor from the time of the writ brought and not any of his other lands he had before that time that are now aliened The words Dedi concessi or Dedi only in a feossement doe Co super Lit. 383 384. Co. 4. 81. 4. What words and clauses in a deed will make a warranty Or not make a warranty when an estate of franketenement or inheritance doth passe by the deed But the word Concessi only or Demisi concessi doe not make such a warranty And by force of the Statute of Bigamis chap. 6. Dedi is made an expresse warranty during the life of the feoffor The word Warrantizo or warrant is the only apt and effectuall Lit. Sect. 733. Co. 5. 17 18. word to make an expresse warranty or a warranty in deed and therefore this word only is used in fines And the words Defendo or Acquieto albeit they be commonly used in deeds yet of themselves without the other will not make a warranty If a man by deed doth grant to warrant land to I S and his Dier 42. Co. super Lit. 383. heires and the warrantor doth not bind his heires to the warranty or doth not warrant to I S and his heires but to I S only or doth warrant to I S and his assignes and not to I S and his heires or doth bind himselfe and his heires to warrant the land but doth not say how long nor against whom these are good warranties but how they shall be taken see afterwards A warranty in deed may be annexed to estates of inheritance Co. super Lit. 366. 389. or freehold and that not only of corporeall things which passe 5. To what things a warranty may be annexed and extended And to what not And how by livery as houses lands and the like but also of incorporeall things which lie in grant as Advowsons Rents Commons Estovers and the like which issue out of lands or tenements and that not only to inheritances in esse but also to such as are newly created as a man some say may grant a rent c. de novo out of land for life in taile or in fee with warranty So a warranty in law may extend to a rent newly created and therefore if such a rent be granted in exchange for an acre of land this Exchange and warranty thereunto annexed is good But a warranty may not be annexed to an estate or lease for years albeit it be a lease of one thousand years nor to any other chattell and therefore in all actions the which lessâ—e for years may have as trespasse c. a warranty cannot be pleaded in barre A warranty may be made upon any kind of conveyance as upon Co. super Litt. 372. 385. Litt. Sect. 738. 745 706. fines feoffements gifts c. also a warranty may be made by and upon releases and confirmations made to the tenant of the land albeit he that makes the release or confirmation hath no right to the land c. And yet some say that by a release or confirmation where there is no estate created or transmutation of the possession a warranty cannot be made to the assignee But if A be seised of land in fee and B doth release to him or doth confirm his estate in fee with warranty to him his heirs and assignes in this case all men agree this warranty to be good and so also it seems it is in the case last before and that both the party himself and the assignee may vouch A warranty in Law may be good in his creation albeit it be made 6. What shall be a good warranty in Law And how it shall barre and bind Co. super Litt. 384. 386. without deed for if
20. 41. See ch 2. Numb 6. Woman covert gifts c. of her lands or goods but another woman that hath a husbands cannot give or grant her lands or goods without her husbands consent unlesse it be in some speciall cases And albeit shee doe recite by the deed that she is sole and not covert yet this will not help And if the case be so that by agreement between her and her husband there be a certain portion of her husbands lands or goods allotted unto her to dispose of and manage at her pleasure yet she alone without her husband can make no good grant or gift of any part of these lands or goods But if she grant any thing by fine and the husband doe not avoid it during the coverture this grant will binde her after his death And if she make a gift or grant of her husbands goods it is thought this is not good untill her husband agree to it An infant cannot make any gift or grant c. that is good but in 9 H. 7. 24. 26 H. 8. 2. Perk. Sect. 12 13 14. 19. 7 H. 4. 5 See cha 2. Num. 6. speciall cases for if he maketh any grant or gift that taketh effect by the delivery of the deed onely as if he grant a rent-charge out of his land or make a feoffement with a letter of Atturney to give livery of seisin or give or sell his horse and the buyer or donee take him himselfe these are void ab initio And if the grant or gift take effect by the delivery of his own hand as if hee make a feoffment and give livery of seisin himselfe or sell a horse and deliver him with his owne hands this is voidable by the Infant himselfe or others that shall have his right c. But if an Infant grant any thing by fine this must be avoided during his minority or else it cannot be avoided at all All grants that are made by Duresse are voidable by the parties Perk. Sect. 16. themselves that make it or others that have their estates c. But Duresse if it be done by fine it is good and unavoidable All gifts grants c. made by deed in the country by those that Non sane memsrie Co. 123. 124. See cap. 2. Numb 6. are de non sane memorie are good against themselves but voidable by those that are their heires executors or have their estate But if it be by fine it is good and unavoidable A man that is borne dumbe or dumbe and deafe if he have understanding Perk. Sect. 25. may by delivery of the deed and making of signes make a good grant gift c. But a man that is borne deafe dumbe and blind cannot A Bastard may give or grant as well as any other man after he Bastord hath gotten a name by reputation Perk. Sect. 26. A Parson may grant any thing belonging to his Parsonage for Parson See Lease no longer time then for his owne life and therein likewise but during his residency albeit he have the consent of the Patron and ordinary Neither the head without the members of a Corporation nor the Corporation members without the head as Dean without the Chapter or Chapter Perk. Sect. 31 32 33. without the Deane may give or grant any of the lands belonging to their Corporation One executor or Administrator may give or sell any of the Executors goods of the deceased and this is good to bind all the rest See Execuors What Grants Ecclesiastaicall persons may make of their Ecclesiasticall lands husbands of the lands of their wives and tenants in taile of their lands intailed See in Lease The name of the persons in Grants is set downe only to distinguish Co. 6. 63. super Lit. 3. persons and to make the person intended certaine and therefore Misnaming howsoever it be best and most safe to describe the person by his true and proper name of Baptisme and also by his Sirname and if it be a Corporation by the true name whereby the Corporation is made yet mistakes in this case unlesse they be very grosse will not make void the grant Nihil facit error nominis cum de corpore constat And therefore if one that is a Bastard hath gotten a name by reputation in the place where he doth live or another man hath gotten another name by common esteeme then his owne right name or is usually called by another name then his true name in the place where he lives in these cases they may grant by this name and the grant is good And if a man be baptized by one name and after Perk. Sect. 41. Co. super Lit. 5. be confirmed by another some have said he may grant by either of these names Sed Quere And if John at Stile grant by the name Perk. Sect. 89. Co. super Lit. 3. of William at Stile this grant is good Et sic de similibus * Fitz. grant 67. Perk. Sect. 42. And these grants are good especially when there is some other addition to make it more certain as when a Duke Marquesse Earle or Bishop grant by their names of honour or dignity and grant without any name or with a false name of baptisme as when the Duke of Suffolke by the name of the Duke of Suffolke without any more words or by the name of William Duke of Suffolke when his name is John or the Bishop of Norwich grant so these are good grants because there is but one such Duke and one such Bishop within the kingdome So if a Deane and Chapter Mayor and Communalty grant by the name of their Corporation without any addition of Christian or Sirname it is good And especially then also are these Perk. Sect. 40. grants good when the true name doth appeare in some other part of the deed As when John at Stile reciteth by his deed that his name is John at Stile and by the same deed doth grant by the name of Thomas at Stile Or Alice at Stile reciting by her deed that she is a feme covert when in truth she is sole But if an ordinary man 3 H. 6 26. Perk. Sect. 38. 42. grant by his Sirname only without any name of baptisme or by his name of baptisme without any sirname at all in these and such like cases for the most part the grant will be void for incertainty unlesse there be some other matter in the deed to helpe it or some matter done ex post facto to supply it for in some cases where the thing granted doth lie in livery such a mistake or incertainty in the grant may be holpen by the livery of seisin upon the deed afterwards And so also it is in the names of Corporations for if the variance Co. 6. 65. 10. 122. 11. 19. Dier 150. Co. 10. 124. and mistake by omission or alteration be only in some
the like are grantable over in fee simple for life or years and therefore rents or services reserved upon any estate and rents granted out of lands are grantable over in infinitum And if a man have a rent reserved on a particular estate he may grant over parcell of it But a rent or Service suspended cannot be granted Neither can a man grant a rent issuing out of a rent If a rent be granted to me I may grant it over to a stranger before I be seised of it and this grant is void But an Annuity it seemes is not grantable over after the first creation of it And yet if an Annuity be granted to I S and his assignes pro consilio it seemes this Annuity is grantable over Advowsons are grantable in fee simple for life Stat. 32. H. 8 cap. 7. Perk. Sect. 90. Advowsons c. or years from man to man in infinitum Also the presentation to a Church before the Church is void is grantable but when the Church is void that Turne is not grantable for it is then in the nature of a thing in action Also Rectories and tithes and portions of tithes and pensions are grantable from man to man in infinitum Reversions and Remainders are grantable from man to man in fee Perk. Sect. 73. 88. 87. simple fee tail for life or years And if I have a tenant for life of three Reversions and Remainders houses I may grant the reversion of two of them And if I have the reversion of three houses four acres of land I may grant the reversion of two houses of two acres of land And if tenant in taile be of an acre of land the remainder to his right heires he may grant over this remainder by it selfe and yet it is such a thing as the tenant in taile himselfe may barre by a common recovery But if a grant be of land to I S for years the remainder to the right heires I D I D is living this remainder is not grantable so long as I D doth live Commons of pasture of turbary of fishing of estovers are grantable Perk. Sect. 103. Common in fee for life or years from man to man in infinitum * Per 2. Judges against one Hil. 16 Jac. B. R. And yet if a common in grosse and without number be granted to a man and his heires it seemes this is not grantable over to another man But if common for a certaine number of beasts be so granted it seemes the law is otherwise and that this is grantable over in case where the first grant is to the grantee only and not the grantee and his assignes Offices are grantable at first but the great Judiciall offices of Offices Perk. Sect. 101. the kingdome as the offices of the Lord Keeper Chiefe Justices or Chiefe Baron or of other of the Justices or Barons and such like are not grantable over to others neither may they be executed by deputies But the Sheriffes office albeit it be not grantable over yet may it be executed by deputy * Per Lord Keeper 2. Chiefe Just M. 5 Car. in cancellaria The reversion of an office is Prerogative not grantable by a Subject as it is by the King yet a Subject may grant an office Habendum after the death of the present officer and this is good †Co. super Lit. 233. Perk. Sect. 101. The inferior offices also that are offices of trust especially if they concern the person of the grantor howsoever they are grantable at first yet are they not grantable over by the officer to any other unlesse they be granted to them and their assignes and of this sort are the offices of Steward Bailife Receiver Sewer Chamberlaine Carver and the like neither may these be executed by deputy but where the grant is so Licences and authorities are grantable at first for the lives of the Licences Authorities c. 12 E. 7. 25. 13 H 7. 13. parties or for years But the grantees of them cannot assigne them over And therefore if power be given to me to make an award or livery of seisin I may not grant over this power to another And if licence be granted me to walke in another mans garden or to goe through another mans ground I may not give or grant this to another A bare possibility of an interest which is incertaine is not grantable Co. 4. 66. 5. 24. Dier 244. Co 10. 51. And therefore if one have a terme of years in land and by Possibilities his will devise it to I S for his life and afterwards to me for the residue of the yeares or devise it to I S if he live so long as the terme shall last and if he die before the terme end the remainder to me in these cases so long as I S doth live I cannot grant over this possibility So if a lease be made to me and my wife for life the remainder to the survivour of us I may not grant this remainder over to another man But such a possibility being coupled with some present interest is grantable over And therefore if A have foure houses in execution upon a Statute and by course of time it will endure thirteene years and after two of the houses are evicted by Elegit for fifteen years in this case he that hath this execution upon the Statute may assigne over his interest in these two houses for after the execution by the Elegit is satisfied A shall have the two houses againe untill he be satisfied The Lord cannot grant the Perk. Sect. 90. wardship of the heire of his tenant whiles the tenant is living Those things that are inseparably incident to others are not 1 E. 4. 10 grantable without the thing to which they are so incident and belonging Incidents And therefore a Court Baron which is evermore incident Perk. Sect. 104. 5 H. 7. 7. to a Manor is not grantable without the Manor it selfe common appendant to land is not grantable without the land it self to which it doth belong and common of estovers appendant to a house is not grantable without the house it selfe to which it doth belong A rent service or other thing whiles it is wholly in suspense is Suspended things not grantable And therefore if the Lord disseise the tenant or 16 H. 7. 4. Co. super Lit. 314. Bro. Grant 173. Perk. Sect. 88 89. the tenant enfeoffe the Lord upon condition the Lord cannot grant over the Seigniory during this suspension But if one have a rent in fee out of my land and he purchase the same land for life or years in this case it seemes the rent is grantable even whiles the estate of the land doth continue So if the tenant make a lease for yeares or life of the tenancy to the Lord in this case the Lord may grant the Seigniory notwithstanding And yet
if the tenant make a lease to another man for life and the Lord grant the Seigniory to this tenant for life in fee in this case it seemes the grantee of the seigniory cannot grant it over because it was never in esse Franchises as views of Frank pledge Perquisites of Courts Leets Conusance of Pleas Faires Markets goods of felons waifes estrayes Franchises Hundreds Ferries or Passages Warrens and the like are grantable over from man to man in fee for life or years in infinitum Things in action and things of that nature as causes of suit Co. 5. 24. 10. 48. Co. super Lit. 214. Dier 244. Perk. Sect. 86 87. 85 Bro. Done 27. 24. 48. Co. 6 50. Things in action rights and titles of entry are not grantable over to strangers but in speciall cases And therefore if a man have disseised me of my land or taken away my goods I may not grant over this land or these goods untill I have seisin of them againe Neither can I grant the Suit which the law doth give to me for my reliefe in the cases to another man So if I make a feoffment to another man on condition that if I doe such a thing I shall have the land againe in this case I may not before or after the time of performance of the condition grant over the condition to another But all these things I may release to the parties themselves for it is a maxime in law that every right title or interest in presenti or in futuro by the joint act of all them that may claime any such right title or interest may be barred or extinguished And in some cases a grantee of a reversion may take advantage of a condition annexed to an estate for See condition Co. super 232. Perk. Sect. 86. life or years If a man owe me money on an obligation or the like I cannot grant this debt to another but I may grant a letter of atturney to another man to sue for it and receive it or I may grant the writing it selfe to another and he may cancell it or give it to the obligor * Dier 283. A presentation to a Church after the Church is become void is not grantable for it is in the nature of a thing in action †Perk. Sect. 92. Fitz. Done 3. 7. And if a man take my goods from me or from another man in whose hands they are or I buy goods of another man and suffer them in his possession and a stranger taketh them from him it seemes in these cases I may give the goods to the trespassor because the property of them is still in me Trusts and confidences which are personall things for the most Personall things part are not grantable over to others And hence it is also that offices Perk. Sect. 99. Plow 379. of trust confidence are not grantable over but in some speciall cases where they are granted to a man and his assignes or where they are granted to a man and his heires And hence it is also that a Wardship by reason of a terme in socage which by the law is Plow 293. given to the next of kin is not grantable over to any other person by the Gardian in Socage Some things are so entire that they cannot be severed by grant Entire things Fitz. Grant 19. 76. And therefore if a man hold three acres of land of me by twelve pence rent and I grant the services of the third acre this is void and he shall have all or none for I cannot sever the tenure But if a man hold land of me by homage fealty escuage and a certain rent in this case I may grant the rent and keep the Seigniory A villaine is grantable for life or years and if the villaine during the estate of the grantee purchase land in fee the grantee shall have Villaines Perk. Sect. 94. it for ever as a Perquisite albeit he have but an estate for life in the villaine it selfe All chattells reall and personall regularly are grantable from man Chattells reall and personall to man in infinitum as leases for years be they present or future Dier 58. Plow 142. 147. Perk. Sect. 91. Dier 305. Perk. Sect. 90. wardships of tenants in Capite or by Knights service trees oxen horses plate housholdstuffe and the like Also trees grasse and corne growing and standing upon the ground fruit upon the trees wooll upon the sheeps backe is grantable If a man sell me ten load of wood in his wood to be taken by his Distresse assignment or sell me three acres of wood towards the north side of Co. 5. 24. the wood by this grant in these words I have such an interest as is grantable over If I make a lease by deed of a house to another and Fitz. Barre 280. therein it is agreed between us that if the rent be not paid me by such a time I shall enter into the house and take and sell the goods there as mine own to pay the rent it seems this is a good grant of the goods and that I may doe according to the agreement And if one that doth hold land of me grant to me by deed indented that I shal distraine for my service in all his land this is a good grant Fitz. Grant 6. A man may give or grant mony as if I deliver one mony on condition Money that if he assure me of such land he shall have it otherwise that Fitz. Done 11. he shall redeliver it to me again in this case if he make the assurance he shall have the mony if not I may have an accompt for it Such things as are ferae naturae as Conies Hares Deere and such Ferae natur◠Bro. Done 34. like are not grantable at all A Parson of a Church may grant his tithes for years and yet they Tithes Perk. Sect. 90. are not in him A man may give or grant his deeds i. the parchment paper wax Deeds to another at his pleasure and the grantee may keep or cancell them Co. super Lit. 232. Trin. 38 El. B. R. 25 H. 8. 5. 1 H. 7. Doves case And therefore if a man have an obligation he may give or grant it away and so sever the debt and it So tenant in fee simple may give or grant away the deeds of his land and the executor in the first case and the heire in the last case hath no remedy But a tenant in tail of land cannot give or grant any of the deeds belonging to the land intailed no more then the land it selfe One may give or grant Apparell apparell and it is said if one make apparell for another and put it 1 H. 4. 31. Fitz. Barre 179. upon him to use weare this is a gift or grant of the apparel it self If one grant to another all the
wooll of his sheep for seven years Perk Sect. 90. Wooll this is a good grant If one being a Parson give to another all the wooll he shall have Fitz. Grant 40. for tithe the next year this is a good grant If one grant to another his horse or his cow in the disjunctive Bro. Done 19. Incertainty this is a good grant not withstanding this incertainty and the donee shall have election and by that make the grant good Any estate that a man hath in fee simple fee taile for life or years 2. Inrespect of the estate property possession of the grantor in any lands c. or any rent or profit apprender out of the same is grantable from man to man in infinitum And he that hath any such estate of any lands may charge it with any rent or profit to be taken out of it as long as the estate of the land doth last But an estate at will is not grantable over And if an estate be made to a man and his heires without the word Assignes yet he may assigne it at his pleasure for Assignes is included within Heires An Interesse termini i. a lease for years to commence in futuro is 22 E. 4. 37. Perk. Sect. 91. grantable before the terme doth begin whether it be a lease of the land it selfe or any rent or other profit out of it The interest or estate that a man hath by extent is assignable Co. 4. 64. from man to man at pleasure The reversion upon an estate taile is grantable And yet the tenant Co. 6. S. Geo. Cursons case Co. 1. Altonwoods case in taile in possession by the suffering of a common recovery may barre him in reversion of any fruit of it If an estate be made of land upon condition as if A make a feoffment Co. 1. 147. 10. 48 49. Lit. chap. Confirmation to B on condition that if A pay twenty pound he shall have the land againe in this case A and B together may at any time before the performance of the condition joine together and grant this land or charge it with any rent c. and this will be good for it is a maxime in law Fee simple land may be charged one way or other And in this case B may grant over his estate alone but it will be subject to the condition And if B grant a rent out of the land to a stranger and after the condition is performed and the feoffor enter in this case he shall avoid the rent But in this case A cannot grant Co. 1. 147. for he hath nothing but a possibility If one enfeoffe divers to the use of his sonne and heire upon condition and before the time of performance of the condition the father and sonne joine to grant or charge the land this is a good grant or charge If the tenant in taile and he that is next in remainder in fee joine Co. super Lit. 45. Co. 10. 48 49 in the grant of a rent charge in fee and after the tenant in taile doth die without issue in this case this is a good grant and charge against him in remainder And if A doth bargaine and sell land to B by indenture and before inrolment they doe joine to grant a rent charge to C by deed in this case this is a good charge and grant whether there be any inrolment or not And so if donor and donee in taile grant a rent charge out of the land then the donee die without issue in this case the grant is good to bind the donor If land be granted to two men and to the heires of their two bodies Co. super Lit. 182. begotten in this case albeit they have severall inheritances after their death yet neither of them can grant away his estate after his life for they are divided only in supposition of law One coparcener of a seigniory may grant his part to a stranger Perk. Sect. 73. Perk. Sect. 103. If two Jointenants be of a plow land and one of them doth grant to a stranger common of pasture for beasts without number to be taken in the same land this is void If two Jointenants be of a reversion one of them grant the whol Iointenants Perk. Sect. 80. Perk. Sect. 65. Dier 12. 33. this is void for a moity If a man grant or charge that which is none of his and that wherein he hath no property it being in the grantee or a stranger the grant is void And therefore if a man grant a rent charge out of the Manor of Dale or grant a reversion of land and in truth the grantor hath nothing in the Manor of Dale or in the land in this case the grant is void And albeit the granter doe afterward purchase the Manor or the land yet this will not make the grant good But if the grant be by fine or by indenture there in some cases it shall be good by way of estoppell And in this case Estoppell albeit the party recite that it is his owne yet this will not mend the cases And therefore if a man recite that he hath a rent of tenne pound a yeare and then grant five pound a year parcell of it in this case if he have no such rent the grant is void A Shepherd Bailif or Parker cannot give or grant away the Servant Bro. Done 56. 4. goods of his master without authority And yet it seemes the servant of a Taverner or Mercer may give or grant his masters Wine or Wares And if a wife give or grant the goods of her husband Husband and Wife this is a good gift or grant untill the husband disagree to it and by his agreement it is made good for ever If a man have a lease for yeares of land and make a lease for life Plow 524. 525. of it or charge it for longer time then the lease for yeares doth last in this the grant is good for so long as the lease for yeares doth last and no longer But if he make a lease for life and give livery of seisin he doth forfeit his estate Regularly a man cannot grant or charge that which is not in Co. super Lit. 214. Perk. Sect. 65. 86. his owne possession albe it he have a right to it And therefore if a man be disseised of his land and before he hath entred into or recovered the land he doth grant or give the land or his right to the land to a stranger or grant a rent charge out of the land to a stranger in these cases the grants are not good And yet such grants by fine may be good by way of estopell And by a release also the right may be extinct But if one that hath a reversion upon an stoppell estate for life and he grant a rent issuing out of this land in this Perk. Sect. 92. 98.
Co. super Lit. 46. case the grant is good and the charge shall fasten upon the land after the estate of the tenant for life is ended And if a man grant common or rent notwithstanding that a stranger take the rent or use the common at the time of the grant yet this grant is good for a man cannot be out of possession of these things but at his pleasure †Hil. 18 Jac. B. R. per. 2 Justices And if a lease for years be made to me I may grant away my estate before my entry And if the lease be to begin at a day to come I may assigne over my interest before the day come for in this case the interest is in me from the time of making of the lease * Perk. Sect. 92 93. Fitz. Done 3. Bro. Done 13. Dier 90. 30. Co. 4. 62 63. Dier 305. 20 H. 6. 22. Perk. Sect. 59. Co. 11. 50. Also I may give or sell my goods that I have not in possession and therefore if a man take my goods out of mine or another mans possession I may afterward give or grant these goods to him or another man and this grant or gift is good A lessor cannot give or grant the trees growing on the ground Tenant for life Trees of his lessee for life or yeares without the licence of the lessee except they be first cut downe by the lessee or some other for then he may And if there be lessee for life and the lessor give the trees growing on the ground and after the lessee for life dieth in this case the donee cannot take them for that at the time of the gift a property of them was in the lessee But if a tenant in fee simple give or grant the houses standing or trees growing on the ground he hath in his possession in this case the grantee or donee may take them after the death of the grantor and that albeit they be not cut or taken downe before his death And yet if the tenant in taile give or grant the trees growing upon his intailed land and Tenant in taile the donor die before the trees be cut in this case the donee or grantee cannot cut them afterwards Howbeit if such a tenant in taile give or grant his emblements of corne growing on the Emblements ground the donee may cut and take them after the death of the tenant in taile And if the tenant in taile give or grant his trees and die before they be cut and afterwards before the issue in taile enter into the land the donee or grantee cut them and take them away in this case the issue in taile can bring no action of trespasse against the donee or grantee for the trees But perhaps if the trees be not removed off the ground he may take them If two coparceners be of an advowson and the one doth present Presentation Dier 35. 15 H. 7. and then he doth grant the next presentation this is a good grant but by this grant doth passe the next he hath to grant for his companion must have the next So if one be seised in fee of an advowson and he hath a wife and he grant the third presentation this is a good grant but it shall be taken for the third he may grant which is the fourth for the wife is to have the third for her dower If a man have granted a thing once he cannot afterwards grant 3. In respect of a former grant of the same thing it again And therfore if a man give or grant me a horse first by word Perk. Sect. Dier 35. 350. Lit. Bro. Sect. 298. Perk. Sect. 102. of mouth and after grant him to me by deed this second grant is void and therefore if there be any fault in this grant in writing it is not materiall And if a man grant to me common of pasture without number in his ground and after make the like grant to another this second grant is void as to me albeit it be good against the grantor And if one grant the next presentation to a Church after the death of the present Incumbent and after grant the same to another or make a lease of land to one for tenne years and after make a lease of the same land to another for the same tenne years or give a horse to one and after give the same horse to another in all these cases the second grant is void But if the first grant or gift be only of part of the thing granted afterwards or of part of the time only the second grant will be good for the overplus And therefore if one be seised of a Manor and demise ten acres of the demesne to tenne years and after demise the whole Manor to another for twenty years this is a good grant for the overplus of the Manor besides the tenne acres presently and for the whole Manor for the last tenne years So if the second grant be to beginne after the first is determined it is good And if the second be such as may be satisfied and not impeach the former both shall stand good And therefore if one that hath an Advowson grant the next Presentation to one and after he doth grant the next Presentation to another and doth not say after the death of the Incumbent in this case the second grant is good and the grantee thereby shall have the second avoidance after the death of the present Incumbent By the grant of an acre of land or of any other thing by the 4. In respect of naming or description of the thing granted Milnaming or Misrecitall Co. 4. 122. Perk. Sect. 114. 116. Co. 10. 106. 107. 11. 47. a Plo. 190. b Co. super Lit. 46. See also Co. 2. in Lanes case which doth seeme to warrant this opinion also Dier the grant is good in a common persons case Bro. Grant name whereby it is called the reversion of that thing if the grantor have no more but a reversion will passe and this mistake will not hurt But it is not so è converso a And yet some have said if one grant a thing in possession by the name of the reversion of the thing this is good to passe the possession Quod non est lex b For if one make a lease for years and before the lessee enter the lessor grant the land by the name of the reversion or the land this grant is void If If one make a lease for life of the demesnes of a Manor rendring rent and after he doth grant the Manor by the name of the Manor this is a good grant for the reversion of the demesnes as well as for the residue of the Manor But if one grant common by the name of the reversion of the common it seemes this is not good And yet if one have common and grant it for life and during that estate he doth grant the common by the name
is made to another of the same thing To have to hold from the end of the former lease this is a good lease the commencement certaine enough So if a lease be made of land to one for life and after the reversion thereof is granted to another for life cum post mortem vel alio modo vacare contigerit this is good So if a lease be made to one for twenty years if he live so long and Craddocks case Pasc 7 Jac. Co. B. after a lease is made to another Habendum after the end of the term granted to the lessee for twenty yeares to be accompted from the date of the deed last made this is a good grant for 20. years after the first lease ended and the words to be accompted c. shall be rejected And if one grant a rent to me Habendum from the time of Co. 9. my full age for my life and I am of full age at the time of the grant this grant is good for my life If a woman sole have a lease for years Plow 192. Co. 6. 36. and take a husband and then he in reversion grant the land to another Habendum after the terme granted to the husband c. where in truth it was never granted to the husband but by an act of law viz. the mariage yet this is a good lease 2. In the limitation 2. In the limitation of the estate Or in the Habendum of the Grant 22 H. 6. 15. Plow 28. of the estate For if a grant be to two heredibus without Suis this is void for incertainty And yet a grant to one heredibus is good And if a man grant two acres To have and to Perk. Sect. 75. 77. Plow 152. hold the one in fee simple the other in fee taile or the one in fee simple and the other for life and doth not set downe which in fee simple c. in certaine yet this grant is good and the grantee hath the election And yet if one grant two acres to two men Habendum Incertainty the one to the one and the other to the other and say not which either of them shall have this is void for incertainty And if one have a reversion of land after a lease for yeares and grant the land Co. 10. 107. Plow 147. Habendum the reversion or grant the reversion Habendum the land this is good In some cases a grant or gift may be void at least to some persons and purposes when there are none of the defects aforesaid in it as 6. In respect of the end or ground of the Grant when it is made upon a corrupt contract or to the end to defraud creditors of their debts or purchasors of their lands bought or the like whereof see before in Deed chap. 4. Numb 5. And in some cases albeit there be no other fault in the grant yet 21 H. 7. 5. Co. super Lit. 7. In respect of omission of some ceremony c. it may become void for want of some other matter that ought to be done as inrolment livery of seisin atturnement c. for where these things are requisite the grant is not good untill it be had neither for that thing which will not passe without that ceremony nor yet for that which otherwise would passe by the deed And therefore if a feoffment be made of a Manor to which an Advowson is appendant and no livery is made so that the Manor doth not passe the Advowson will not passe neither Where a grant may be void by the refusall or waiver of the grantee See before in Deed Num. 6. chap. 4. If one make a feoffement with warranty and after the feoffee 7H 6. 43. 21 H. 7. 23. Perk. Sect. 69. Bro. Grant 175. Kelw. 88. doth grant to the feoffor that neither he nor his heires shall vouch 5. What shall bee said a good grant in the nature of a release or discharge Or not the warrantor or his heirs upon the warranty this is a good discharge of the benefit of voucher and doth bar the feoffee of it And yet he may bring a Warrantia Cartae still So if one grant to mee a rent-charge and afterwards I grant to him that he shall not be sued for this rent this is a good grant to bar me of bringing an annuity for the rent And yet I may distrain for the rent still And so è converso if I grant to the grantor he shall not be distrained for the rent by this I am barred of a distresse but not of bringing an annuity for the rent So if the Lord doth grant to his tenant holding by knights service that his heirs shall not be in ward c. or a man doth grant to his debtor that he will not sue him for the debt at all or until such a time or one grant to his lessee for life or years that he shall not be impeached for wast all these are good discharges and may be pleaded by way of bar to avoid circuity of action And now because Atturnment as hath been shewed is necessary in some cases to the perfection of some conveyances grants of things lie in grant and not in livery we must therefore here ere wee can goe further as a necessary appendix to Grant adde the learning of Atturnment which followeth next in order CHAP. XIII An Atturnment AN Atturnment is the agreement of the tenant to the grant of Co. super Litt. 309. Terms of the Law Plow 25. Litt. Sect. 551. the Seigniory or of a rent or the agreement of the donee 1. Quid. in tail or tenant for life or years to a grant of a reversion or of a remainder made to another As where the Lord or one that hath a rent out of land doth grant over his Seigniory or his rent to another or one that hath a reversion or a remainder after an estate for life or years doth sell or give the same away to another in these cases the tenant of the land must have notice of this sale or gift and of the alteration of the party to whom he must attend in his services and he must give his consent to the same gift or grant or else generally the same is not good And this yeelding of consent is called an Atturnment And it is either actuall or verball or actuall and verball both 2. Quotuplex That which is actuall is either implied and in Law or expressed and in Fait Of all which there are divers examples hereafter following The end effector fruit of this agreement is to perfect a grant and Lit. Sect. 551. Co. super Lit. 302. Lit. Bro. Sect. 267. 129. 379 39 H 6. 24. Co. super Lit. 323. 315. Lit. Sect. 608. 3. The effect of it to make a good conveyance of an estate for where this is needfull no rent nor reversion will passe without it neither can
the common law If a lease be made to one for life the remainder to another in Lit. Sect. 578. taile the remainder over to the right heires of the tenant for life and the tenant for life doth grant his remainder in fee in this case there needs no atturnment of the tenant in taile but the remainder will passe by the deed presently without any atturnment at all If one lease for life the remainder for life and after the lessor Lit. Sect. 575. release all his right in the land to him in remainder for life in this case there needs no atturnment of the lessee for life to perfect this release If two Jointenants or more make a lease for life rendring rent Lit. Sect. 574. and one of them doth release the rent to the other in this case there needs no atturnment to make the rent to passe In all cases where the grant is in the personalty there Agreed in Curnocks case M. 3 Jac. Co. B. needs no atturnment And therefore in grants of annuities which doe charge the person of the grantor only and not his land there needs no atturnment And in all cases where there is an atturnment in law there needs no atturnment in deed If there be Lord mesne and tenant and the Lord grant the fee Lit. Sect. 555. of the Seigniory in this case the mesne and not the tenant must 3. By whom anatturnment may must be made Or not atturne If one make a lease for life and then grant the reversion for life Co. super Lit. 319. and the lessee atturne and after the Lord grant the seigniory in this case it seemes the grantee and not the first lessee for life must atturne If there be Lord and tenant and the tenant make a gift in taile Lit. Sect. 554. 556. Co. super Lit. 311. or lease for life of the land and after the Lord grant the services to a stranger in this case the tenant for himselfe and not the tenant in taile or for life must atturn For it is a maxime in law That no man shall atturne to any grant of any seigniory rent service reversion or remainder but he that is immediately privy to the grantor But to the grant of a rent seck or rent charge issuing out of such land as before the under-tenant in taile or for life and not immediate tenant himselfe must atturne If there be tenant for life the remainder in fee and the Lord Lit. Sect. 556. grant the services to a stranger in this case the tenant for life and not him in remainder must atturne If there be tenant for life the remainder in taile and he in the Idem reversion after their estates doth grant his reversion to a stranger in this case if either of them need to atturne it must bee the tenant for life If a woman that hath a husband be to atturne the husband Co. super Lit. 312. Lit. Sect. 558. may and must doe it for her and the atturnment of the husband Husband and wife for the wife whether it be expressed or implied will binde the wife If one make a lease for yeares of land the remainder for life Lit. Sect. 571. Co. super Lit. 316. 317. and after the lessor doth grant the reversion in this case the tenant for life or yeares either of them may atturne If a rent charge be issuing out of land and the tenant be disseised of the land in this case the disseisor must atturne But in case of Co. super Lit. 312. the grant of a rent service the disseisee may atturne if he will for the privity is betweene the Lord and the disseisee only If a man make a lease for life to I S of land and after grant Co. super Lit. 312. a rent charge out of it to I D and after he grant over this rent to another in this case the lessor and not I S must atturne The tenant in dower after shee hath assigned over her estate and Co. super Lit. 316. 8 E. 4. 10. not the assignee must atturne to the grant of the reversion And yet some hold that the assignee also may atturne The same law is also of the tenant by the courtesie but it is not so in other cases for if the reversion of lessee for life be granted and lessee for life assigne over his estate the assignee and not the lessee must atturne If lessee for life assigne over his estate upon condition and then Co. super Lit. 316. the reversion is granted in this case the assignee and not the lessee for life must atturne If a tenant in fee simple that ought to atturne to a grant of a Co. super Lit. 315. Perk. Sect. 231. Seigniory or rent die before he make an atturnment his heire must atturne and an atturnment made by him is good So if he grant away his land before he make his atturnment his grantee may atturne and an atturnment made by him will be good enough If a Lord of a Manor make a lease of his Manor for life or years Co. super Lit. 311. and the freeholders and others doe atturne to the lessee and after he grant away the reversion of the Manor to a stranger in this case the lessee for life or yeares must atturne and this will bind all the freeholders If there be Lord and tenant by homage fealty and rent and Co. super Lit. 311. the tenant is disseised and then the Lord granteth the rent to another in this case the disseisor and not the disseisee must atturn but if he grant the whole Seigniory the disseisee may atturne A voluntary Atturnment where it is needfull may be made by Infant Co. super Lit. 315. an infant or one that is deafe and dumbe who may doe it by signes But one that is non compos mentis cannot make an Atturnment Non compos mentis The Atturnment must always be made to the grantee of the reversion 6. To whom an atturnment may must be made Or not Co. super Lit. 310. 312. 20 H. 6. 7. rent c. according to the grant whether the Atturnment be expresse or implied But if divers doe take by the grant the atturnment may be made to one of them and this shall avail the rest as if a reversion or a rent be granted to two or more and the tenant atturn to one of them this is good to vest and settle the thing granted in them all according to the grant And if a lease bee made by deed of a reversion to A for life the remainder in fee to B and the tenant atturn to A this is a good atturnment to settle the remainder in B. But if the tenant atturn to B during the life of A this is not good for A howbeit if the tenant for life die before the atturnment be made in this case the atturnment
good atturnment for both the acres all the forty yeares and all the services And that albeit the tenant say expresly it shall be good but for a part and not for the whole And so also it is of an atturnment in law And therefore if the grantee by fine of services sue a Scire facias to have execution of any part of the services and have judgement to recover any part or a lessee of three acres surrender one of them to the grantee of the reversion of all the three acres this is a good atturnment for the whole But if one atturn for part of the land or for part of the services in case of the grant of a reversion of land or the grant of services and have no notice of the grant of any more this atturnment is not good for any part but void for all If a seigniory reversion or the like be granted to two or more Co. super Lit. 297. 2. 68. 67. Atturnment to one good to others and the tenant after notice thereof doth atturn to one of them this is a good atturnment to perfect the grant to both or all of them But if one die before atturnment and the tenant atturne to the survivor or survivors this shall not availe the heire of him that is dead but it is good to perfect the grant to the survivor or survivors to whom it is made If a reversion be granted to husband and wife and the tenant Calvins case Pasc 7 Jac. B. R. Co. 2. 68. atturne to the wife in the absence of the husband this is a good atturnment to perfect the grant to them both But if a reversion bee granted to two men and the tenant have notice onely of a grant made to one of them and he atturn to him onely this atturnment is void and not good to perfect the grant to either of them If two jointenants be for life or years and the reversion of their Co. 2. 66 67. Litt. Sect. 566. Atturnment by one good for others estate is granted to a stranger and one of them atturn to the grant of the reversion this is a good atturnment for both of them The like law is for tenants in common But if A B C and D be lessees 6 Car. in the Lord Brooks case in the Court of Wards for years and C and D be outlawed so as they forfeit their parts to the King and the King become tenant in common with A and B and after the reversion is granted to a stranger and A B C and D atturn this is no good atturnment to perfect the grant of the reversion for C and D cannot atturn and the atturnment of A and B for the King and themselves is not good Atturnment made by the husband is good for the wife whereof see before at Numb 5. 9. Who shall bee compelled to atturn Or not And where In all cases for the most part where atturnment is needfull the Co. 6. 68. 9. 84. super Litt. 315. tenant whether he be tenant in fee simple for life yeares by Statute Elegit or as executor untill debts be paid shall be compelled to atturn And albeit the tenant be an infant and come to the land by purchase or descent yet may he be compelled to atturn but then in this case his atturnment shall not prejudice him for when he is of full age he may disclaim or say he doth hold by lesse services If there be tenant in tail of a reversion and he grant this over to Co. super Litt. 316. 318. a stranger in this case the tenant in possession may be compelled to atturne But if the reversion upon the estate of the tenant in tail or upon the estate of the tenant in tail after possibility of issue extinct be granted such a tenant may may not be compelled to atturn and yet such a tenant may atturn gratis if he will And the assignee of the estate of such a tenant in taile after possibility c. is compellable to atturn And if one make a gift in tail the remainder in fee and the Seigniory or a rent charge issuing out of the land is granted in see by fine in this case the tenant in tail may bee compelled to atturn In al cases for the most part where atturnment is not needful there Co. 6. 68. super Litt. 318. is no means to compell the tenant to atturn And therefore the tenant cannot be compelled to atturn to him that comes to a reversion or remainder by escheat forfeiture c. If one grant his reversion of land in Mortmain without a licence Co. super Litt. 318. 3. 86. the tenant may not be compelled to atturn untill there bee a licence had from the King Also it is a generall rule that when the grant by fine is defeasible Co. super Lit. 318. 3. 86. there the tenant shall not be compelled to atturne As if an infant levy a fine this is defeasible by writ of Error during his minority and therefore the tenant shall not be compelled to atturn So if the land be holden in ancient demesne and he in the reversion levieth a fine of the reversion at the Common Law the tenant shall not be compelled to atturn because the estate that passeth is reversable by a writ of deceit If the grant be absolute and the atturnment be on condition 10. How an atturnment shall enure and be taken Co. super Litt. 309. 310. 297. See before yet this shall enure according to the grant So if the atturnment be but to part of the things or part of the time granted this shall enure to perfect the grant for all So if the atturnment be made but to one of the grantees it shall enure to the rest So if the atturnment be made to the particular tenant it shall enure to him in the remainder to perfect his estate also If the estate of the tenant be with a priviledge annexed as without Co. super Lit. 320. impeachment of wast or the like and the tenant atturn generally without any saving of his priviledge if the atturnment bee gratis and voluntary whether it bee an atturnement in law or in deed this shall not enure to extinguish his priviledge but if the atturnment be made by the compulsion of a writ in this manner and without this saving he hath lost his priviledge for ever If a reversion c. be granted to two severall men one after another Co. super Lit. 310. and he that hath the latter grant get the atturnment of the tenant to his grant before the other in this case this shall enure to perfect the latter and the first grant now cannot be made good If a reversion be granted to a man and woman unmaried and before atturnment made they entermary and then the tenant atturn Co. super Lit. 310. in this case they shall have the estate by moities An atturnment as to the
1. 44. Plow 524. lands or tenements may by deed or writing in the country or without writing by word of mouth make a lease of it for what lives or years he will And hee that is seised of an estate in tail of any lands or tenements may make any lease out of it for his owne life but not longer unlesse it be by fine or recovery or it be such a lease as is warranted by the Statute of 32. H. 8. whereof see more infra And he that is seised of lands or tenements of any estate for his own or anothers life may make what lease for years he will of it and it will be good as long as the lease for life doth last And hee that is possessed of lands or tenements for years may make a lease of it for all or part of the years and these are good leases The tenant for life or years may also assigne over all their estates if they please And if such tenants make leases for longer time as if lessee for years make a lease for life it seemes by this the land will passe for life if the term of years last so long But if he give livery of seisin upon it as he must to make the lease for life good this is a forfeiture of the estate for years Forfeiture Infant If an infant be seised of land in see simple and he make a lease 9 H. 7. 24. 18 Ed. 4. 2. Plow 545. for years of it rendring no rent this lease is void But if there be a rent reserved upon the lease then the lease is but voidable and may by the acceptante of the rent by the infant after his full age bee Acceptance made good Jointenants tenants in common and parcenours may make leases Litt. cap. tenant in common F. N. B. 62. G. Iointenants Tenants in common for life or years of their own parts and purparties at their pleasures and these leases will binde their companions And one coparcenour or tenant in common may make a lease of his part to his companion if he will If a feoffment be made upon condition and before the time of performance of the condition the feoffor and feoffee doe joyne to make a lease for life or years of the land this is a good lease A man that hath an estate in land to him and his wife and his Bro. Leases 58. heirs may make what lease he will of the land and this will be good against all men but his wife onely and that for her time If there be lessor in fee and lessee for ten years in this case they Co. 10. 49. two may joyn together and make a lease for lives or for any terme of years and this is good A disseisee cannot make a lease of that land whereof he is disseised Plow 133. untill he make his entry or recover the possession of the land again So neither can a woman that hath recovered the third part Bro. Scire facias 36. of her husbands land in a writ of dower make any lease of it before she be in possession by execution And yet if a lease be made Co. super Lit. 46. to me for years I may make a lease of part or an assignement of all the term before I have made my entry into the land demised So if the father die and the son make a lease to a stranger of the land Plow 137. 142. descended to him before his entry this is a good lease but if a stranger had entred and abated into the land and then the sonne had made the lease contra In some cases also such persons as are not seised in see simple c. Co. 5. 5. Dier 357. Co. 62. 8. 70. 1. 175. See in Leases made by tenant in tail infra nor able to derive such estates for life or years out of their owne estates By speciall power or proviso to make leases may lawfully notwithstanding make such leases for life c. And this is sometimes by some speciall Act of Parliament enabling them so to doe And hence it is also that a tenant in tail may make leases for three lives or twenty one years And sometimes it is by some speciall power or authority that is given or reserved by and to the party himself that had the see simple in him or given to some other to doe it in his name and leases thus made may bee good And therefore if any Act of Parliament enable a tenant in tail or a tenant for life to make leases for three lives or twenty one years leases that are so made in pursuit of that authority are good And if a man be seised of land in fee and convey it to the use of himself for life or in tail with divers remainders over with a proviso that it shall be lawfull for him or any such tenant in tail to make leases for twenty one years in this case he or they may make such leases and they will be good But in both these cases care must be had to pursue the authority strictly i. that the leases made be according to the power and direction given by the statute or proviso for if it differ and vary ever so little from the sense and meaning of the same the lease will not be good And therefore in the case before of a power to make leases for twenty one years if the party make more leases for twenty one yeares at one time then one they are all void but the first because it is against the intent of the parties though it be not against the words And so if the power be to make leases for three lives he cannot by this make a lease for ninety nine yeares if three lives so long live But if the power be thus Provided c. that he may make any lease in possession or reversion so as it doe not exceed the number of three lives or twenty one years in this case a lease may be made for ninety nine years if three lives live so long But where uses are raised by way of covenant and in the deed there is a proviso that the covenant or for divers good considerations may make leases for years in this case this power is void and therefore no lease can bee made hereupon neither will any averment help in this case And if a man have a Averment letter of Atturney or other authority to make leases for another and doe make them accordingly such leases are good But herein also caution must be had of three things 1. That the authority be Co. 9. 76. good 2. That he that is the Deputy or Atturney doe pursue the authority strictly 3. That he doe it in the name of his master and not in his own name A lease made for a thousand days moneths or weeks is as good Co. 6. 72. 14 H. 8. 13. 2. In respect of the manner of the agreement
to come at the time of his death by this the whole estate and interest of the grantor into the land doth passe presently by these words in the premisses of the deed And if in this case the lessee for an hundred years make a lease of the land to have and to hold after his death for an hundred years this will bee a good lease for as many of the first hundred years as shall be to come at the time of his death If A make a lease to B for ninety years to begin after the death Per Justice Bridgeman of A on condition to be avoided upon the doing of divers acts by others and afterwards makes another lease of the land Habendum after the determination or redemption of the former lease it seems this is a good lease and certain enough But if a lease be made to A Co. 4. 153. Dier 253. for eighty years if he live so long and if he die within the said term or alien the premisses that then his estate shall cease and then he doth further by the same deed grant and let the premisses for so many years as shall then remain unexpired after the death of A or alienation to B for the residue of the said term of eighty years if he shall live so long in this case the lease to B is void for after the death of A the term is at end but if he say for the residue of the eighty years it is otherwise If A doth make a lease of land to B for so many years as B hath Plow 273. 523. 522. F. N. B. 6. N. 14 H. 8. 11. Co. 6. 35. in the Manor of Dale and B hath then a lease for ten years of the Manor of Dale in this case this is a good lease for ten years But if A make a lease of land to B for so many years as the land B hath in execution shal be in execution this lease is void for incertainty And if a lease be made during the minority of I S or untill I S shall come to the age of twenty one years these are good leases and if I S die before he come to his full age the lease is ended But if a lease be made to another until a child that is now in its mothers belly shal come to the age of twenty one years this lease is not good And if a lease be made for so many years as I S shall name in this case if I S do name a certain number of years in the life time of the party lessor this is a good lease But if a lease be made for so many years as the executor of the lessor or of the lessee shall name this lease is void If a man make a lease for twenty one years if I S live so long or Co. super Liâ— 45. Plow 27. if the coveroure between I S and D S shall so long continue or if I S shall continue to be Parson of Dale so long these and such like leases are good But if A make a lease to B for so many yeares as A and B or either of them shall live not naming any certain number of years this cannot be a good lease for years So if the Parson of Dale make a lease of his glebe for so many years as he shall be Parson there this is not certain neither can it be made so by any means And yet if a Parson shall make a lease from three years to three years so long as he shall be Parson this is a good lease for six years if he continue Parson so long and for the residue void for incertainty So if I make another a lease of land untill he be promoted to a Benefice this is no good lease for years but void for incertainty If I have a rent-charge of twenty pound per annum and let it to Co. 6. 35. 14 H. 8. 10. Plow 274. another untill he have levied an hundred pound this is a good lease for five years But if I have a peece of land of the value of twenty pound per annum and I make a lease of it to another untill he shall levy out of the profits thereof an hundred pound this is no good lease for years but void for incertainty But here note in all these cases of incertain leases made with such Note limitations as aforesaid as untill such a thing be done or so long Plow 27. Co. 6. 35. as such a thing continue c. that if livery of seisin be made upon them they may be good leases for life determinable on these contingents albeit they be no good leases for years And in some speciall cases a lease may be good notwithstanding Co. super Lit. 46. 10 Ed. 3. 26. some incertainty in the continuance of it for a lease may cease for a time and revive again as if tenant in tail make a lease for years reserving twenty shillings and after take a wife and die without issue in this case as to him in reversion the lease is meerly void but if he indow the wife of the tenant in tail of the land as to the wife it is revived again So if tenant in taile make a lease for yeares rendring rent and die without issue his wife enceint with a sonne and he in reversion enter in this case as against him the lease is void but after the sonne is born the lease is good again if it be within the Statute So if tenant in fee simple take a wife and then make a lease for years and dieth the wife is indowed in this case she shall avoid the lease but after her decease the lease shall be in force again If a lease be made for life or years to A and after the lessor doth 4 In respect of another lease then in being of the same thing Plow 433. â— 421. 273. Co. 1. 155. Bro. Leases 73. 10. Plow 521. Co. 4. 58. make a lease for years by word or in writing to B regularly this concurrent lease to B is a good lease at least for so many yeares of the second lease as shall be to come after the first lease is determined according to the agreement as if the first lease to A be for twenty years and the second lease to B be for thirty yeares and both begin at one time in this case the second lease is good for the last ten years And yet the reversion will not passe without the atturnment of the tenant and therefore if any rent be reserved on the first lease the second lessee shall not have it untill the first lessee doth atturn But if the second lease be for the same or for a lesse time as if the first lease be for twenty years and the second lease be for twenty or for ten years to begin at the same time these second leases are for the most part void And yet herein a difference Dier 58. 356
Plow 421. 422. Co. 1. 155. is taken between leases made by matter of record and by writing and leases that are made by word of mouth for if the second lease be made by fine deed indented or poll albeit it be but for the same or for a lesser time and albeit it be a lease of the land it self and not of the reversion yet it will passe the rent reserved upon the first lease if the first lessee atturn and so also it will do without atturnment where atturnment is not needfull But if the second lease be made by word of mouth it is otherwise for a reversion and a rent in this case will not passe without deed and therefore a grant by word doth not passe them And if the second lease be by fine or deed indented then also it will Estoppel work by way of Estoppel both against the lessor and against the lessee so that if the first lease happen by any means as by surrender or otherwise to determine before it be run out then the second lessee shall have it and if there bee any rent reserved upon the second lease the lessee must pay it from the time of the making of the lease And therefore if one make a lease of Dier 112. Plow 432. land to A for ten years and after make a lease to B of the same land from Michaelmas next for ten years and before Michaelmas the first lessee doth purchase the fee simple so that now by this means his term is drowned in this case the second lease shall begin at Michaelmas So if one make a lease to A for twenty years and A make a lease of the land to B for two years rendring Co. 4. 53. rent and after A makes a lease for the rest of his time to C by deed this lease if the lessee for two years doe atturn is a good lease of the rent and reversion and so it is also without Atturnment if there be any consideration given for it for then it is also a good lease for all the rest of the term after the two years So if one make a lease to A for twenty years if he Co. 1. 155. Plow 432. 434. Hil. 6 Jac. Adjudge Finch versus Vaughan live so long rendring rent and after he doth make a lease to B by Indenture for eighty years to begin presently or grant the reversion to beginne at a day past or the like in all these cases if the first lessee atturne the rent will passe but if not it will be a good lease for the land for so many of the yeares as shall bee to come after the first lease ended But if the second lease bee by paroll without a deed the reversion as a reversion will not passe and the grant will bee void if there bee nothing else to help it And in cases where the second Dier 112. lease is void albeit the first lessee surrender his estate or his estate end by a condition yet the second lease is not hereby made good But if the second lease for yeares after another Co. 2. 35 36. lease for life or years be made for mony so as it may be said to passe by way of bargain and sale this may help the matter for in this case albeit it be by word onely it may passe the reversion and the rent also but in most cases it is good for the remainder of the term after the first lease ended And if the second lease be to begin after the end of the former lease in this case the former lease is no impediment at all to the validity of the latter lease but the latter lease is good notwithstanding Any person whatsoever of full age that hath any estate of inheritance Stat. 32 H. 8. cap. 28. Co. super Lit. 44. in fee taile in his owne right of any lands tenements or 5. What Leases or other acts may be made or done by a tenant in tail And what leases made by such a tenant shall be good to binde the issue or him in remainder or others after the death of the tenant in tail And how they shall bind hereditaments may at this day without fine or recovery make leases of such lands for lives or years and such leases shall be good so as these conditions and incidents following be therein observed and kept 1. Such leases must be by deed indented and not by deed poll or by paroll 2. They must be made to begin from the day of the making thereof Co. 5 6. Dier 246. or from the making therof And therfore a lease made to begin from Michaelmas which shall be three years after for twenty one years or a lease made to begin after the death of the tenant in tail for twenty one years is not good But if a lease be made for twenty years to begin at Michaelmas next it seems this is a good lease 3. If there be an old lease in beeing of the land the same must Co. 5. 2. be surrendred or expired and ended within a year of the time of the making of the new lease and this surrender must be absolute and not conditionall also it must be reall and not illusory or in shew onely For factum non dicitur quod non perseverat 4. There must not be a double or concurrent lease in being at Co. 5. ◠one time as if a lease for years bee made according to the statute he in the reversion cannot afterwards expulse the lessee and make a lease for life or lives or another lease for years according to the Statute nor è converso But if a lease for years be made to one and Sparks case Trin. 4 Jac. B. R. afterwards a lease for life is made to another and a letter of Atturney is made to give livery of seisin upon the lease for life and before the livery made the first lease is surrendred in this case the second lease is good 5. These leases must not exceed three lives or twenty one years Co. 5 6. Dier 246. from the time of the making of them And therefore if tenant in tail make a lease for twenty two or for forty years or for four lives this lease is void and that not only for the overplus of time more then three lives or twenty one yeares but for that time of three lives or twenty one years also And it hath been resolved that if tenant in tail make a lease for ninety nine years determinable upon three lives that this is not a good lease But if a lease be made Co. 1. by a tenant in tail for a lesser time as for two lives or for twenty years this is a good lease And if a lease be made for four lives and it happen that one of the lives die before the tenant in tail die yet this accident will not make the lease good but it remains voidable notwithstanding 6. These leases must be of
lands tenements or hereditaments manurable Co. 5. 3. or corporall which are necessary to be letten and whereout a rent by law may be issuing and reserved And therefore if a tenant in tail make a lease of such a thing as doth lie in grant as an Advowson Fair Market Franchise or the like out of which a rent cannot bee reserved especially if it be a lease for life this lease is Tallentines case Pasch 3 Jac. B. R. Co. 11. 60. void and that albeit the thing have been anciently and accustomably letten And a grant of a rent-charge therefore out of such lands is void * Trin. 2 Ja. B. R. Adjudg Doddingtons case And if tenant in tail make a lease for three lives of a portion of tithes rendring rent this lease is unquestionably void And so also it seems it is if it be a lease for twenty one years 7. They must be of such lands or tenements which have been most commonly letten to farm or occupied by the Farmors therof by the Co. 6. 37. Dier 271. space of twenty years next before the lease made so as if it have been letten for eleven years at one or severall times within twenty years before the new lease made it is sufficient And albeit the letting have been by copy of Court roll only yet such a letting in fee. for life or years is a sufficient letting and so also is a letting at will by the Common Law But these lettings to farm must be made by such as are seised of an estate of inheritance for if it have been only by Guardian in Chivalry tenant by the curtesie in dower or the like this will not serve to be a letting within the intent of the statute 8. There must be reserved upon such leases yearely during the Co. 5. 8. 6. 6. 37. same leases due and payable to the lessor and his heirs to whom the reversion shall appertain so much yearly farm or rent or more as hath beene most accustomably yeelded or paid for the lands c. within twenty years next before such lease made And therefore if the rent be reserved but for part of the time of the new lease this lease is void And if the tenant in taile have twenty acres of land that have been accustomably letten and hee make a lease of these twenty acres and of one acre more which hath not been accustomably letten reserving the usuall yearly rent and so much more as to exceed the value of the other acre this is not a good lease by the Statute So if the tenant in tail of two farms the one at twenty pound rent the other at ten pound rent and he make a lease of both these farms together at thirty pound rent this is not a good lease within the Statute But if besides the Co. 6. 37 38. Trin. 3 Jac. B. R. Adjudg annuall rent there have beene formerly reserved things not annuall as hariots fines or other profit upon the death of the Farmors or profit out of anothers soil as pasturage for a colt c. Adjudg Tr. 18 Jac. B. R. if upon the new lease the yearly rent be reserved albeit these collaterall reservations be omitted yet these leases are good And so Co. 5. 6. also if there be more rent reserved upon the new lease then the rent that hath been anciently paid the lease is good notwithstanding And yet if tenant in tail of land let a part of it that hath been accustomably letten and reserve the rent pro rata or more then after the rate this is not a good lease And yet if two coparcenours Co. 5. 5. And yet Co. super Lit. 44. b. is contra have twenty acres of land of equall value between them in tail and these have been usually letten and they make partition of these land so as each of them hath ten acres in this case they may make leases of their severall parts reserving the half of the accustomable rent And if upon the old lease the rent were payable at foure Trin. 3. Jac. B. R. Coâ—â—wals case Co. 5. 5. days in the year and by the new lease it is reserved to be paid at one day this is not a good lease But if the rent upon the old lease be payable in gold and the new rent be payable in silver it seems the lease is not good And if a tenant in tail be of a Manor Co. 5. 6. that hath been usually demised for ten pound rent and after a tenancy escheat and then he doth make a lease of the Manor rendring ten pound rent by the year in this case this is a good lease but if the lessor purchase a tenancy then it seems otherwise 9. Such leases must not be without impeachment of wast And therefore if tenant in tail make a lease of his land intailed without impeachment of wast this lease is void And if a lease be Wast Co. 6. 37. Meers case Adjudge made for life the remainder for life c. this is not a good lease for in this case during the remainders the tenant for life cannot be punished for wast done But if such a tenant of land make a lease of it to I S for the lives of three others this is a good lease albeit it may afterwards become an occupancy 10. Such leases must not be against any speciall Act of Parliament Stat. 11 H. 7. 20. Co. 3. 51. And therefore if a woman that is tenant in tail of the gift of her deceased husband or any of his Auncestors whiles she is sole or after with another husband make any such lease warranted by this Statute yet this lease is not good 11. They must have all due ceremonies and circumstances for the perfection of them as other such like leases have as livery of seism and the like where they are needfull And then only when Co. 7. 7. 8. 34. Dier 7. 8. The twomans Lawyer â—73 Plow 435. leases have these conditions and are made according to these provisions are they said to be within this statute of 32 H. 8. and such only as doe binde the tenant in tail himself and the issâ—e in tail for otherwise if it be not warranted by this statute albeit it will bind the tenant in tail himselfe that made it yet it will not binde his issue but as to him it will be void or voidable at the leastâ— for if tenant in tail of land make a lease of it for an hundred yeares without any rent reserved thereupon this lease as to the issue in tail is void but if he make a lease of his land for an hundred years Plow 436 rendring rent and have issue and die in this case the lease is onely Acceptance voidable by the issue at his pleasure and therefore if the issue accept the rent after the death of the tenant in tail by this means the lease is affirmed and become good But
howsoever the lease bee made it will not binde him that comes in of a remainder over nor him that is the donor And therefore if a tenant in tail make a lease warranted by the statute and after die without issue so that the land doth remain over to another or revert to the donor in these cases neither he in the remainder nor the donor shall be bound by this lease for as to them the lease is void And yet by a common recovery the tenant in tail may make leases of or lay charges upon the land to binde the donor and him in remainder also But otherwise it is of a fine for if tenant in tail make a lease for years by fine this will not barre the donor not the remainder in any case where it is in a stranger And yet if the remainder be in the tenant in tail himself and he make a lease for years by deed according to the Statute or by fine this lease is good and shall bind his own remainder The husband may at this day without fine or recovery make leases 6. What leases or other acts may be made or done by the husband with the lands he hath in fee simple or fee tail in the right of his wife or joyntly with her And what leases made by him of such lands are good Or not And how Stat. 32. H. 8. cap. 28. Co. super Litt. 44. of the lands tenements or hereditaments whereof he hath any estate of inheritance in fee simple or fee tail in the right of his wife or jointly with his wife made before or after the coverture so as there be in such leases observed the eleven conditions or limitations before required in the leases made by tenant in tail and so that the wise doe joyn in the same deed and be made party thereunto and doe seal and deliver the same deed her self in person For if a man and his wife make a letter of Atturney to another to Pasch 7 Jac. B. R. deliver the lease upon the land this lease is not a good lease from the wife warranted by the statute And yet then as in other like cases of leases not warranted by this statute it is a good lease against the husband And when the lease is such a lease as is warranted by the statute it doth bind the husband and wife both and the heirs of the wife but if it be an estate tail it doth not bind the donor nor him in remainder If the husband and wife at the Common Law had joyned in a 26 H. 8. 2. lease of her land without rendring of rent this lease had been void as against the wife and so is the law still If the husband at the Common Law had been seised of land in 26 H. 82. Co. 2. 77. the right of his wife and hee had made a lease for yeares rendring rent and died this lease had been void and so is the law still If the husband and wife at the Common law had made a lease Dier 92. by word rendring rent this lease had been void as against the wife and so is the law still The husband and wife together may by fine or recovery make Stat. 32 H. 8. ch 28. See the womans lawyer 163. what leases they will of her land or charge it for what time they will and such leases and charges will be good against the husband and wife both and their heires also But if the husband alone doe levie any fine of his wives land and thereby make any estate whatsoever this will not bind the wife after her husbands death but she may avoid it And if the husband and wife make a lease of her land rendring rent to them and the heires of the wife as in such leases it ought to be in this case the husband cannot by fine or otherwise grant or discharge this rent longer then during coverture unlesse the wife join in the fine but the rent shall descend remaine or revert in such sort and manner as the land should have done Bishops with the confirmation of the Deane and Chapter Parsons Co. super Lit. 44. Co. 5. 14. 11. 66. or Vicars with the consent of their Patrons and Ordinaries 7. What leases or other acts Bishops or other spirituall or ecclesiasticall persons may make or doe with the lands they have in the right of their churches or houses And what leases made by such persons will bind their successours and others Or not Archdeacons Prebends and such as are in the nature of Prebends as Precentors Chaunters Treasurers Chancellors and such like also Masters and governours and Fellowes of any Colledges or houses by what name soever called Deanes and Chapters Masters or Gardians of any Hospitall and their brethren or any other body politique spirituall and ecclesiasticall Concurrentibus hiis quae in jure requiruntur might by the ancient common law have made leases for lives or yeares or any other estates of their spirituall or ecclesiasticall living for any time without stint or limitation And at this day the Bishops and the rest of the said Spirituall Stat. 32 H. 8. ch 28. 13 El. ch 10 1 Jac. chap. 3. 1 El. ch 19. 14 El ch 11. 18 El. ch 10. 20. persons except Parsons and Vicars may make leases of their spirituall livings for three lives or twenty one years and such leases will be good both against themselves and their successors But such persons may not make leases or estates for any longer time then for three lives or twenty one years and if they doe albeit it be by fine or recovery or it be confirmed by the Dean and Chapter c. yet it is void as against the successor Neither will the leases made by such persons for three lives or twenty one years be good unlesse they have certain conditions and properties required in them These things therefore are necessarily required to be observed in the making of such leases 1. That they have the effect of all the qualities or properties before mentioned and required by the Statute of 32 H. 8. Co. super Litt. 44. Co. 11. 66. 5. 3. 15. in the lease made by the tenant in tail and be made after that pattern viz. That they be by deed indented 2. That they do begin from the time of the making of them 3. 4. That the old lease be surrendred and there be not a concurrent lease save in case of a Bishop And therfore if any such person make a lease for 21 years to one then make a lease for three lives to another this second lease is void And yet if a Bishop make a lease for 21 years to one man then within a year after make another lease to another for 21 years to begin from the making of it this so as it be confirmed by Dean Chapter is resolved to be a good lease 5. That they doe not exceed three lives or twenty one yeares
but they may be for a lesse time 6. That they be of lands or tenements manurable or corporall 7. That they be made of lands that have been commonly let to farm by the space of 20 years before 8. That there be reserved upon them the ancient and accustomed rent payable to the lessor and his successors during the time 9. That they be not made without impeachment of wast 10. That there be livery of seisin upon them c. where it is requisite 11. If the lease be made according Co. 11. 66. 5. 3. to the exception of the Statute of 1 Eliz. and 13 Eliz. and not warrated by the Statute of 32 H. 8. as in the case of a concurrent lease and it be made by a Bishop or any sole Corporation it must be confirmed by the Deanes and Chapters or others that have interest And if a Parson or Vicar make a lease it is not good but during the Parson or Vicars residence according to the Statute of 13 Eliz. chap. 20. and in this case there needs no confirmation at all 12. Some of the leases that are made by the Colledges and houses of the University c. must have some rent corne reserved Stat. 18 El. cap. 20. upon them * Co. 5. 15. 11 66. 10. 58. Dier 370. And most of these points were agreed by Justice Jones and Just Whitlock at Lent Assises at Gloc. 6 Car. But Bishops Deanes Parsons and such like spirituall persons cannot grant the next advowsons of Churches neither can they grant rents out of their spirituall livings but the same charges will be void after their death And if a Bishop suffer an annuity to be recovered against him by a pretence of title of prescription on a Judgment after a verdict or confession or a Parson in such a case pray in aide of the Patron and so suffer an annuity to be recovered this will not bind the successor And yet a Bishop or any such spirituall person may grant ancient offices of trust of necessity or conveniency as the offices of Chancellor Register Steward Bailife or the like with the ancient fees incident thereunto for the life or lives of the grantees and such grants are good albeit they be made by the Bishops of the new erected Bishopricks and that there be not in them the conditions and properties required in the leases before mentioned so as they be confirmed by the Deane and Chapter But they may not grant any new office nor yet adde any new fee to the old offices And therefore if a Bishop grant an annuity pro consilio impenso impendendo where none was before this will not bind the successor And yet if there be an old fee and there is a new fee added to it in this case it seems it is good for the old fee albeit it be void for the new fee. Neither may they grant their offices otherwise then they have been granted And therefore where the ancient grants of the office have been to one it cannot be now granted to two And where the ancient grants have been to two jointly they may not be now granted in remainder one after another Neither may the grants of these offices be longer then for the life or lives of the grantees And in case where the grant is void the confirmation of the Deane and Chapter will not make it good But here note that albeit in all these cases of leases and grants Co. super Lit. 45. 329. 3. 59. 10. 59. 11 73. 78. 5. 5. not warranted by the Statutes aforesaid the Statutes say the leases Note shall be void yet this is to be understood as against the successors and not against the lessors themselves for the leases are good so long as the lessors live or at least so long as they continue in the place And therefore if such a lease be made by a Deane and Chapter or other Corporation aggregate it is good as against the Deane or other head of the Corporation so long as he doth continue in his place And if a Bishop make any lease or other grant not warranted by the Statute of 1 Eliz. or a Deane and Chapter Master and Fellowes of a Colledge or the like make leases not warranted by the Statute of 13 Eliz. cap. 10. these leases are good against themselves albeit they are void against their successors So as if a private Act of Parliament doth entaile land upon a man and appoint him what estates he shall make and that if he make any other estates they shall be void in this case they shall not be void as to the tenant in taile himselfe that doth make them Leases of Benefices with cure are no longer good then the Parson Stat. 13 El. cap. 20. is resident Leases made by Colledges must have reserved upon them the third part of the rent in Corn. See the Statute of 18 Eliz. cap. 20. If one make a lease to another during the will and pleasure of 8. What shall be said a good lease at will Or not Co. super Lit. 55. 56. 270. 14 H. 8. 12. him that letteth or him that taketh or both for so in effect is every lease at will this is a good lease at will So if one make a feoffment in fee or lease for life c. and doe not make livery of seisin and so perfect the estate the feoffee or lessee hath only an estate at will But if a bargaine and sale be made of land and the same is void or a Corporation grant land and the grant is void by this there is no lease at will made Leases for lives or yeares are of three natures some be good in 9. Where a lease for life or years shall be void ipso facto by the death of the lessor or by other meanes Or not but voidable by entry c. And how Co. super Lit. 45. 3. 59. 65. 7 8. law some be voidable by entry and some void without entry And of such as be good in law some be good at the common law as leases made by tenant in fee simple notwithstanding they be for longer time then three lives or twenty one yeares some by act of Parliament as leases made by tenant in taile leases made by a Bishop seised in fee in the right of his Church alone without the Chapter leases made by a man seised in fee simple or fee taile of land in the right of his wife together with his wife for twenty one yeares or three lives according to the Statutes And of such leases as be void also some are void at the common law and that sometimes in presenti as in the cases before of leases for yeares that have no certainty in them or leases for lives made without livery of seisin and the like And some are void in futuro as if a tenant in taile make a lease for yeares warranted or not warranted by the Statute and after die without issue
this lease is void as to him in reversion or remainder Cessante statu primitivo cessat derivativus So if a Prebend Parson or Vicar make a lease for yeares not warranted by the Statutes this is void by the death of the lessor and the successor need not make any entry or claime to avoid it So if a tenant for life make a lease for yeares and after die in this case the lease for yeares is void And therefore in all these and such like cases no acceptance of rent after will affirme such leases But Acceptance otherwise it is in cases of leases for yeares made by Bishops albeit they be confirmed by Deane and Chapter and of leases made by Deanes and Chapters or tenants in taile as to their successors and issues when the leases are not warranted by the Statutes And otherwise it is also in the case of leases for life made by these or any of the former lessors for in all cases of leases for life it must be avoided by entry c. and therefore such leases are not void but voidable viz. The leases of Bishops and Deanes after their death by their successors and that by the Statute law and the leases of tenants in taile by their issues after their death and that by the common law And in these and such like cases the acceptance of the Acceptance rent by the issue or successor will make good the lease at least for their time If a lease be made for yeares on condition that upon such a contingent Co. 3. 65. it shall be void in this case so soone as the thing doth happen the lease is void ipso facto without any reentry c. But if a lease for life be made on such a condition in this case the lessor must enter c before the lease will be void CHAP. XV. Of a Feoffment Gift Grant and Lease A Feoffment Grant or Lease in writing may become void by 1. Where and bv what meanes a feoffment gift grant or lease and the estate thereby made being good at first becometh void by matter ex post facto and may be avoided Or not And how rasure interlining and the like as hath been shewed before in Deed supra And a feoffment grant or lease and the estate thereby made may become void by forfeiture or upon a breach of a condition or by a limitation For which See Condition and Vses Also Co. 3. 26 27. 5. 119. Doct. Stud. 119. Perk. Sect. 44. 45. Fitz. Done 4 5. Bro. Done 29. 30. 59. they may become void by disagreement or refusall And this may be either by the disagreement of the party himselfe to whom it is made or by the disagreement of another Of the party himselfe for no estate can be made to a man of any thing in see simple for life or otherwise against his will And therefore by his disagreement or refusall of it the estate it selfe and the deed whereby it is conveyed may become void By the disagreement of another as the husband in case of a feoffment c. made to his wife may by disagreement avoid it And for the first of these the law is thus That all such acts that give estates directly or by way of use are good at first and the thing granted when the deed of grant is delivered to his use shall vest in the grantee before he hath notice of the grant or agree to accept of the thing granted so that if lands be limited to a man by way of use or granted immediately by feoffment gift grant or lease or goods or chattels be given or granted to a man in these cases the things granted shall be said to be in the grantee and the grant good before notice and agreement untill disagreement And before agreement the grantee may waive it and so avoid the estate and the deed also whereby the estate is made And if it be but a lease for yeares that is made he may waive and avoid that by word of mouth in the country as well as a gift of goods or an obligation delivered to his use But if it be an estate of free hold that is made by feoffment it seemes he cannot waive and avoid that but in a Court of Record When the cause of a grant faileth and the thing granted is executory Co. super Lit. 204. Plow 134. 15 E. 4. 4. Dier 76. 9 E. 4. 20. the grant is become void As if one grant an annuity for an acre of land for tithes or for counsell in this case pro is conditionall and therefore if the land be evicted by an elder title or the grantee disturbed in the tithes or he refuse to give counsell the annuity is determined But if a feoffment or lease for life or yeares be made of an acre of land pro una acra c. as in the case before albeit the acre be evicted c. yet the grant in this case of the acre of land is good And if one grant an annuity for counsell if the grantee will not give counsell the grant is not of force So if one grant to make new pales in a place for the old pales if in this case he cannot have the old pales it seemes the grant shall not bind him to make new pales So if one grant a rent for a way stop the way and the rent shall be stopped If one that hath a lease for life or yeares of a Manor to which an advowson is appendant grant the next avoidance that shall happen Co. 8. 144 145. during the lease or grant a rent out of the Manor and then surrender the Manor so that his estate is gone in this case notwithstanding the grant of the next avoidance and of the rent doth continue good and the grantee shall enjoy it according to the grant as long as the estate that is surrendred should have had continuance If the heire of the Kings tenant enter and make a lease before livery sued and after an intrusion is found against him by this it seems the lease is avoided So if tenant in taile make a lease warranted by the Statute and after dieth without issue by this the lease H. 7. is determined If a tenant in taile make a feoffment to his heire within age and Co. super Lit. 349. he after he is of full age make a lease for yeares of the land and after the tenant in taile dieth and the heire is remitted the lease in this case is not avoided If an annuity be granted to one untill he be advanced to a benefice Plow 272. 15 H. 7. 1. by the grantor and the grantor die and the heire or executor of the grant or tender a benefice it seemes this will not determine the grant If A be lessee for yeares of an advowson and grant the next avoidance Co. 8. 145 7. 39. to B if it shall happen to become void during the terme and A doth
surrender the terme to C who hath the inheritance and the Church become void before the end of the terme in this case the grant is good to B and he shall have the next avoidance for a man cannot derogate from his owne grant So if A be lessee for years and he grant a rent charge to a stranger and after surrender his terme to the lessor in this case albeit the terme be extinct yet the rent doth continue and the stranger shall have it duing the terme So if A have a rent charge out of the land of B and acknowledge a Statute to C and then release the rent to B in this case albeit the rent be gone as to A and B yet it is in esse as to the conusee and he may extend it If a man be seised of a great wood and grant to I S six hundred Co. 5. 24. coards of wood out of the same wood to be taken by the assignement of A in this case if A will not upon request assigne where the wood shall be taken yet the deed will not lose his effect but I S may take it without assignment If A be lessee for life on condition to have see and he make a Co. 7. 14. lease to B for yeares and after he performe the condition and so his estate for life is turned into a fee simple in this case the lease for years is good still notwithstanding but otherwise it is in case of the King If A tenant in taile enfeoffe B on condition to the use of A in Co. 1. 147. 148. 11 H. 7. 21. fee and A had granted a rent charge or acknowledged a Statute which by the Statute of 1 R. 3. cap. 5. was extended and after A had performed the condition in this case albeit the estate had been changed yet the interest of the grantee or conusee had continued If A be tenant for life the remainder to B in taile the remainder 5 E. 4. 2. Pethouse Cranes case Mic. 36. 37 El. Co. B. to A in fee and A doth grant a rent charge or acknowledge a Statute and die in this case and hereby the grant is not become void but if B die without issue the heire of A shall be charged If a corody be granted for a service to be done the omission of Davis Rep. 1. the service doth determine the corody If one grant lands with his daughter in frank mariage or goods 20 E. 4. ult Dier 13. 126. with his daughter in mariage and after the mariage is dissolved and they are divorced in this case the grant is now become of no force Cessante causa cessat effectus If one man grant to another an office of charge only to which there is no benefit or fee incident in this case he may avoid and 2. Where a man may avoid his own grant Or not And when Bro. Grant 103. determine his owne grant at his pleasure without any cause given But if there be any fee or profit incident to the office then he may not avoid the grant of it or put out the officer without some cause of forfeiture and if he doe the grantee may have an assise And yet in this case also he may put him out of the office albeit he may not deprive him of the fee or profit incident thereunto If one grant a Ward to another to mary or for his service it Bro. Grant seemes he may not afterwards avoid this grant But if one grant him to another for instruction or education contra If one make a lease for years of his land rendring rent and after grant the rent to I S and the termor atturne and after the lessor Bro. Grant 128. accept of a surrender of the estate of the termor yet this doth not avoid the grant of the rent but the same shall continue still If a disseisor grant a rent common or other profit apprender out of the land and after the disseisee doth enter and enfeoffe him Lit. Sect. 477. of the land in this case the rent is avoided and the common is gone But if the disseisee release to the disseisor in this case he shall not avoid his owne grant An Infant and other disabled may impeach and avoid their own grants in divers cases which see before in Grant A deed of feoffment c. in some cases is holpen and a fault 3. Where and by what meanes a feoffment gift grant or lease or the estate thereby made being void or voidable at the first may become good by matter ex post facto Or not therein cured by the making of livery of seisin For which see Feoffment and Lease But an atturnment will not help the grant of a reversion c. for it is a maxime in law That atturnment cannot make a void grant good If a tenant in taile make a lease for life or years of land and this lease is voidable and after the tenant in taile doth suffer a common Co. 1. Capels case Dier 373. Co. 1. 48. 76. recovery of the land to whomsoever it be by this the lease is affirmed made good during the terme as wel against the issues heirs by the entaile as against him in reversion or remainder And so it is of a charge of a rent upon the land And if tenant in taile make a lease of the land or charge it and after levy a fine of the land to a stranger by this the lease or charge is become good against the issue in taile also If a tenant in taile make a lease for forty yeares rendring rent So held in the Exchequer Hil. 16. Jae and die and his issue doth lease to another by indenture for twenty one yeares rendring rent to begin after the expiration forfeiture or surrender of the first lease it is said this doth affirme the first lease Sod quere Acceptance of rent reserved on a lease for life or yeares which is voidable only and not void may make the lease good A feoffment gift c. that is made by duresse or manasse and Bro. Defeasance 17. therefore voidable may by another deed of defeasance afterwards made between the same parties become good Also grants leases and the estates thereby made that are not good may be made good and perfected by release or confirmation For which see Release and Confirmation A feoffment may be good against some persons and void against Co. super Lit. 46. 7. 8 others but cannot cease and revive and be good and void at severall 4. Where when a feoffment gift grant or lease may begood for one time and void for another and good against one person but void against another and good in part and void in part Or not times as a lease for years or a grant of rent c. may in many cases for a grant may be suspended and a lease for yeares may cease and revive againe as if
tenant in taile make a lease for yeares rendring twenty shillings rent and after taketh a wife and dieth without issue and he in reversion or remainder endoweth his wife as he may in this case the lease as against the woman is revived albeit it be void as to him in reversion or remainder So if tenant in taile make a lease for yeares and die without issue his wife enceint with a sonne and he in reversion enter and after the sonne being heire to the entaile is borne in this case the lease which was before avoided by him in reversion if it be such a lease as is warranted by the Statute is good against the issue in taile and therefore is revived againe So if the King make a gift in taile to W to hold by Knights service and W doth make a lease to A for thirty yeares reserving rent and then W dieth his sonne and heire of full age in this case as to the King this lease is void but after livery sued out the lessee may enter againe and if the issue accept the rent the lease is affirmed So if tenant in taile make a lease not warranted by the Statute and die and his heire is in ward in this case the Gardian in the behalfe of the heire may avoid the lease during the wardship but afterwards the heire may affirme it againe if he accept of the rent So if tenant in see simple take a wife and then make a lease for years and dieth and the wife is endowed she shall avoid the lease for her estate but after her death the lease will be in force againe But if the Patron grant the next avoidance and after the Parson Patron and Ordinary before the Statutes had made a lease of the Glebe for years and after the Parson had died and the grantee of the next avoidance had presented a Clerke to the Church who had been admitted instituted and inducted and had died within the terme and the Patron had presented a new Clerke to the Church who had been admitted instituted and inducted in this case the lease had not revived againe No more then if a feme covert levy a fine alone and the husband doth enter and avoid the fine the estate shall revive against the wife after his death for it is avoided as to her also as well as to the husband by his entry See more in Deed supra cap. 4. Numb 7. Where a feoffment gift grant or lease is voidable in some cases it may be avoided by the party himselfe that made it and not 5. Who may avoid a feoffment gift grant or lease that is voidable Or not And how Co. super Lit. 45. Co. 7. 8. Dier 337. 239. by others albeit they be privies as heires executors or administrators and in some cases it is voidable by others and not by the party himselfe and in some cases it is voidable by the party himselfe and by others And in some cases it is avoidable only at some times and in some cases it is avoidable at all times as for examples an Infant if he grant by fine must avoid it during his minority if he live to be of full age otherwise he himselfe or any other shall never Infant avoid it But if he grant by deed this may be avoided at any time by himselfe his heires executors or administrators or his Gardian in his right as the case is But a Lord by escheate cannot avoid a voidable estate made by his tenant being an Infant And if a woman Woman covert covert doe any such act by deed it may be avoided by her husband during the coverture or her selfe after the coverture or her heires c. that are privies after her death And if a man de non sane De nonsane memorie Co. super Lit. 7. 8. memorie doe any such act it may not be avoided by himselfe that is the party denying it but it may be avoided by his heires c. that are privies And if tenant in taile make a voidable lease not warranted by the Statute he may not avoid it himselfe but his issue Tenant in tail may And if he be in ward by reason of a tenure in Capite or Knight service the gardian of the issue during his time may avoid it And if a Corporation spirituall sole or aggregate make leases not warranted Corporations by the Statutes they may not avoid it themselves but their successors after their death translation or other remotion may avoid it or if a Bishop make such a voidable lease the King when the Bishoprick doth come into his hands may avoid it And now we passe to another sort of Assurances that are for some speciall purposes and in some speciall cases only wherein we shall first begin with an Exchange CHAP. XVI Of an Exchange AN Exchange is the mutuall grant of equall interests the one in 1. Exchange or Eschange Quid. exchange for the other Or it is where a man is seised or possessed Terms of the law tit Exchange Finches ley 27. of land in fee simple fee taile for life or yeares or is possessed of goods and another is seised or possessed of other lands or possessed of other goods in the like manner and they doe exchange their lands or goods the one for the other And in this there is a doble grant for each of them doth grant that which is his to the other This manner of conveyance which heretofore was very frequent is sometimes made by word without any writing and sometimes * Co. super Lit. 50. Perk. Sect. 253. it is made by deed or in writing and which way soever it be made it must be made by this word Exchange which is a word so appropriated to this thing as the word Frankmariage is to a gift in Frankmariage neither of which can be made or described by any circumlocution The fruit and effect of an exchange is that it doth give the interest Co. 4. 121. 15 E. 4. 3. 9 E. 4. 21. Bro. Eschange in toto Fitz. Eschange in toto and after the property of the things exchanged to either party 2. The effect and fruit of it according to the agreement And if the exchange be of lands or tenements of any estate of Inheritance or freehold whether it be by word or deed it hath a condition and a warranty in law incident and annexed to it as a thing made by the word Exchange and tacite implied in every grant of exchange A condition to give a reentry upon all the land given in exchange if he be put out of all or part Condition of the land taken in exchange and a warranty to enable him to vouch and to recover over in value so much of his own land againe Warranty given in exchange as shall be recovered from him of the land taken in exchange if he be sued for it So that upon every exchange either party
if he be put out of or lose by action the land he taketh in exchange hath a double remedy against the other and yet this remedy doth goe only in the privity and shall not goe to an assignee As if Assignee A exchange land with B and B be put out of all or part of the land upon a title paramount by a recovery in a reall action or otherwise in this case B may either enter upon his owne land againe which he gave in exchange or else if it be in an action brought he may vouch A upon the warranty in law and shall recover as much in value against him of the land he gave as he hath lost of the land he tooke in exchange But if B alien his land taken in exchange to C and C be put out of all or part of the land upon a title paramount C in this case can neither enter upon the land given to A in exchange upon the condition in law nor vouch A to warranty and recover over in value upon the warranty in law And yet A in this case shall have the like remedy against C the alienee upon the condition and warranty both as he had against B. But if A himselfe implead C for the land he gave to B in exchange C may make use of this warranty in law by way of Rebutter against A. And in all these cases where one of the parties is put out of all or part of the Rebutter land or out of part of the estate by entry and the other party enter upon the others land upon the condition in law he may enter upon the whole land and avoid the whole exchange but if he be impleaded for a part only or for the whole and a part only be recovered from him in this case he shall recover so much in value of the other land only as he hath lost and no more As if an exchange be of three acres for three acres and after one of the parties is put out of one of the acres by the entry of a stranger in this case he may enter upon the whole three acres he had given in exchange and so avoid the whole exchange if he will And if A and B be Jointenants for life and the fee simple to the heires of A and A exchange this land with C in fee and then die and B enter and avoid the exchange for his life as he may in this case C may avoid the whole exchange and enter upon his owne three acres againe So if he in reversion disseise his tenant for life and then exchange the land and after the tenant for life enter in this case the other party may defeate the whole exchange But in this case of an exchange of three acres for three acres if one of the acres were gained by disseisin and the disseisee bring an action and doth recover it against the disseisor in this case if he vouch over the other party to the exchange he shall recover so much in value only of the three acres he gave in exchange as the acre he hath lost and no more To the perfection of an exchange and to make things to passe 3. How an exchange must be made And what shall be said a good exchaâ—ge Or not See Grant Numb 4. by this kind of conveyance these things are requisite 1. That the persons or parties thereunto be able to give and take and not disabled by any speciall impediment And for this it must be known that such persons as may be grantors and grantees may make exchanges and such persons as are disabled to grant are disabled to 1. In respect of the parties therunto and their estates make exchanges An exchange made between the King and a subject is good albeit Co. super Lit. 51. the King hold his land in one capacity and the subject in another An exchange made between an Infant and another is not void Infant Idem but voidable only for the Infant at his full age may affirme or avoid it at his election An exchange made between a tenant in taile and another is not Tenant in tail Bro. Eschange 9. Perk. Sect. 279. void but voidable for it is good against himselfe during his life and his issue at his full age may affirme or avoid it at his election An exchange made between a man de non sane memorie and another Bro. Eschange 9. De non sane memorie is not void but voidable for it is good against him but his heir may avoid or affirme it at his election A man that doth hold land in fee simple fee taile or for life in Bro. idem Perk. Sect. 279. the right of his wife may exchange this land and the exchange will Husband in right of his wife be good as long as he and his wife doth live And he with his wife may exchange it for longer time and the exchange is good against him but his wife after his death may affirme or avoid it if she will One Parson or Vicar may exchange his Church or Benefice with Parson Perk. Sect. 288. another and this exchange is good The disseisor and disseisee may joine together and exchange the Perk. Sect. 280. 273. land whereof the disseisin was made with a stranger for other land but if it be made out of the land and before the entry of the disseisee it shall not bind the disseisee for he may avoid it And a disseisor cannot exchange the land he hath gotten by disseisin with the disseisee for other land for this exchange is void unlesse it be by Indenture or fine that it may work by way of estoppell The lessor and lessee may joine together and exchange the land Surrender Perk. Sect. 279. leased for other land and this is good for it shall be said to be the surrender of the lessee to the lessor and the exchange of the lessor and therefore the lessee as it seemes shall have nothing to doe with the land taken in exchange Sed quere of that Jointenants for life the fee to one of them may exchange their Iointenants Terants in common land with a stranger for other land to hold in the same nature and Perk. Sect. 277. 281. the exchange is good But Jointenants tenants in common and coparceners cannot exchange the lands they doe so hold one with another before they have made partition If A and B be Jointenants for life the fee to A and A exchange Perk. Sect. 277. the whole land with another for other land this is good only for his moity as some have said But it seems notwithstanding it is good for the whole untill it be avoided by the other Jointenant The second thing required in a good exchange is that the things Perk. Sect. 263. 261 262. 266. 258. Lit. Sect. 62. Co. super Lit. 51 52. 2. In respect of the
require wherein these 3. In respect of the manner of the making of the exchange And where it shall be good without deed or â—ot things are to be known 1. That if all or part of the things whereof the exchange is made doe lie in severall counties or if all or part of the things whereof the exchange is be such as lie in grant and not in livery albeit it be in the same county in these cases the exchange must be made by deed indented in writing But where the exchange is of lands and of lands lying in the same county albeit it be of any estate of inheritance or free hold yet it may be by word of mouth without writing And so also may it be when the things exchanged doe lie in divers counties when the exchange is made only for a terme of years And therefore if an exchange be made between I S and T K of lands lying in one and the same county in fee or for life it may be by word of mouth but if all or part of the lands of I S lie in one county and all or part of the lands of T K doe lie in another county the exchange must be made by deed indented If an exchange be made of rent for land and the land out of which the rent is issuing and the land given in exchange for it doe both lie in one county this exchange cannot be good without deed So if an exchange be made of the reversion of an acre of land for three shillings of rent issuing out of another acre of land and both acres are in one county this exchange must be made by deed indented or it will not be good So if an exchange be made of an acre of land and a rent out of another acre for another acre of land and common for three beasts and all is in one and the same county this exchange must be by deed indented or it will not be good But if I be seised of a Manor to which I have common appendant or appurtenant and T K is seised of another Manor to which he hath a villaine regardant and both the Manors are in one county an exchange may be made of these Manors by word of mouth without writing and the common and villaine will passe as incidents well enough And yet if I S hath an office whereunto land doth belong and T K hath rent issuing out of the land of a stranger and all the land is in one county and the office is to be used and occupied in the same county if these things be exchanged it must be by deed indented 2. The word Eschange or Exchange Co. super Lit. 50 51 Perk. Sect. 252 253. 9 E. 4. 21. Fitz. Exchange 13. must be had and used between the parties in the making of the exchange As I grant to you white acre To have and to hold to you and your heires in exchange for blacke acre And in consideration hereof you grant to me and my heires blacke acre in exchange for white acre for this word is so individually requisite as it cannot be supplied by any other word neither will any averment that it was in exchange helpe in this case And therefore if A by deed indented give to B an acre of land in fee simple or for life and by the same deed B doth give to A another acre of land in the same manner this cannot enure as an exchange And therefore if no livery of seisin so as it may take effect by way of Grant it is utterly void Livery of seisin But by this meanes lands may be granted from one to another for there needs no livery of seisin So if an exchange be made by words betweene two of lands in one county and before their entry Indentures are made betweene them of the same lands without words of exchange and no livery of seisin is made this shall not passe by way of exchange And yet it hath been held by some that Permutatio or some other word of like effect may supply this word exchange 3. That if any rent reversion seigniory or the like Perk. Sect. 259. 263. 289. 276. be granted by either party that then the tenant doe atturne to the grant for that atturnment is requisite in this case And yet in Atturnment the case of the grant of land in possession in exchange no livery of seisin is needfull Neither is it needfull that either party to the exchange come to the thing given to him in exchange by the same Livery of seisin meane and manner of assurance for if lessee for life of one acre give another acre to his lessor in taile in exchange for a release from him of that acre To have and to hold in taile in like manner this is a good exchange An exchange may be made to take effect in futuro as well as in Perk. Sect. 265. presenti for if an exchange be made betweene me and T K that after the Feast of Easter T K shall have my Manor of Dale in exchange for his Manor of Sale this is a good exchange If an exchange be made in writing of land and it doth limit and expresse no estate that either party shall have in the thing exchanged 19 H. 6. 27. Perk. Sect. 275. yet this is a good exchange But if an estate for life be limited expressely to one and no expresse estate is limited to the other this is not a good exchange as shall be shewed in the next place The fourth thing required in a good exchange is equality of Fitz. Exchange 15. Lit. Sect. 64 65. Co. super Lit. 50 51. Perk. Sect. 276. estate viz. that either party have the like kind of estate of the 4 In respect of the quality or equality of the estates or interests exchanged thing exchanged so that if one have an estate in fee simple the other have so likewise and so for other estates For if the one grant that the other shall have his land in fee simple for the land which he hath of the other in fee taile or that the one shall have in the one land fee taile and the other in the other land but for terme of life or that the one shall have in the one land fee taile generall and the other in the other land fee taile speciall or that the one shall have in the one land for life and the other in the other land but for yeares these exchanges are void and cannot take effect as exchanges m Perk. Sect. 283. And therefore if the Lord release to his tenant his services in taile in exchange for other lands given to the Lord in exchange in taile also this exchange is void for by this release made by the Lord the services are gone for ever n Perk. Sect. 275. Finches ley 27. So if tenant for his owne life exchange with him that is tenant for life of another this
is not a good exchange And by the same reason it should seeme if lessee for twenty yeares of his land exchange with another for other land for forty yeares that this should not be a good exchange o Perk. Sect. 276. But if lessee for life be of an acre of land and he give another acre of land to his lessor in fee taile in exchange for a release of all his right in the acre that he holdeth for terme of his life To hold to him and the heires of his body engendred this is a good exchange p Co. 11. 80. Or if tenant for his owne life exchange with him that is tenant in taile after possibility of issue extinct this exchange is good q Perk. Sect. 275. 19 H. 6. 27. And yet if an estate for life be expressed to the one party upon the exchange and no estate is expressed to the other party it is said that this exchange is not good and yet where no estate is expressed the party shall have an estate for his owne life But in these cases it is not necessary that the parties to the Co. super Lit. 51. Perk. Sect. 289. Lit. Sect. 65. Perk. Sect. 280 281. Husband and wife Tenant in tail exchange be seised of an equall estate at the time of the exchange made for if tenant in taile or husband in right of his wife exchange their land in fee simple with another for lands he hath in fee simple this is a good exchange untill it be avoided by the issue or the wife r Idem Neither is it necessary that both estates be in possession for one may grant an acre in possession in exchange for an acre in reversion and this exchange is good s Idem Neither is it necessary that there be an equality in the value or quantity of the lands exchanged for if the land of one of the parties be worth one hundred pound and the land of the other but tenne pound or the land of one of the parties be one hundred acres and the land of the other but tenne acres if the estates given be equall the exchange is good t Idem Neither is equality in the quality or manner of the estates requisite For if two Jointenants be in fee of an acre of land and they grant that acre to another in exchange for other lands To have and to hold a moity to one of them and his heires and a moity to the other and his heires which is an estate in common or two men give lands in exchange to A and his heires for lands from A to them two and their heires albeit the one party hath a joynt estate and the other a sole estate yet the exchange is good The like law is if the land of one of the parties be of a defeasible title and the land of the other of an undefeasible title this exchange is good till it be avoided The fifth and last thing required in a good exchange is that there Co. super Lit. 50 51. Co. 1. 98. 105. Perk. Sect. 284. 286. 292. 289. be an execution and perfection of the exchange by entry or claime 5. In respect of the execution of it in the life time of the parties viz. That both the parties to the same exchange do enter into the things taken in exchange if they be such things as they may enter into for untill the exchange be executed by entry or the like the parties thereunto have no freehold in deed or in law in the things exchanged albeit the same things do lie in one County And if either of the parties die before he enter into the lands by him taken in exchange hereby the whole exchange is become void if his heir will but if one of the parties enter he shall not first begin to avoid the exchange But if the parties enter at any time during their lives it is sufficient unlesse the possession be before devested by an elder title as by entry for a condition broken entry by a disseisee or his heir or the like and not revested again before the entry As if an exchange be had betweene two of land and before their entry by force of the exchange they are or one of them is disseised of the land exchanged and the disseisor die seised thereof and then they enter according to the exchange and put out the heir of the disseisor this shall not be said to be an execution of the exchange but if the disseisee have recovered the same land against the heir of the disseisor by writ of entry and have execution then he may execute the exchange by entry And in case where a reversion rent or seigniory is granted in exchange it must be perfected and executed by the atturnment of the tenant in the life time of the parties otherwise the exchange is not good but in this case after atturnment is made it seems the exchange is perfect without any entry or claim If two Parsons exchange their Churches and resigne them into Perk. Sect. 257. the Bishops hands this is not a perfect exchange untill they be inducted and therefore if either of them die before they be both inducted the exchange is void Where a deed shall take effect as an exchange there must be all Perk. Sect. 255 256. Fitz. Exchange 14. Perk. Sect. 272. the conditions before mentioned in the case And yet note that 4. When a deed shall take effect as an exchange Or not where one thing is granted for another in the nature of an exchange and for some of the causes aforesaid the things cannot passe by way of exchange there they may passe notwithstanding by way of grant and the deed may take effect to other purposes albeit it may not enure and take effect as an exchange And therefore if two be seised of severall acres of land and the one of them by deed doth give his acre to the other and the other his acre to him without any word of exchange and each of them doth make livery of seisin to the other in this case albeit the acres will not passe by way of exchange yet will they passe by way of grant And in this case if no livery of seisin be made either of them shall hold the lands granted at will only And in like manner it is if two agree to exchange land and after each of them levy a fine or make a feoffment of the land to other by this the land will passe each to other but not by way of exchange So if A and B his wife and C and D his wife agree to exchange lands and A and B enter into the land they are to have in exchange and then they doe make a feoffment of their own land unto C and his father and not to C and D his wife this shall not enure as an exchange and therefore C and D may enter upon their own land again but the
feoffment is good And if one assign a woman her dower in exchange for land this shall not take effect as an exchange but it shall enure to be a good assignment of dower If two doe exchange land by deed and limit no estates this shall 19 H. 6. 27. Perk. Sect. 275. 5. How an Exchange shall be construed and taken be taken for estates for life and the exchange is good but if an expresse estate be limited to one and no expresse estate to the other it is said this is not good and that construction of law wil not help it If an exchange be made between two men of two acres of land Perk. Sect. 251. by deed and in the Habendum it is set down that each of them shal have the acres given in exchange with divers other acres not expressed in the premisses this addition shall be taken as surplusage and the exchange shall be good for the two acres See more in Exposition of Deeds If after an exchange is made before or after the parties enter all Perk. Sect. 286. Co. 4. 122. Perk. Sect. 299. Bro. Exchange 12. 6. Where an Exchange shall be determined or the nature of it changed by matter ex post facto And how And where not or part of the land given to either party be recovered from him upon an elder title as by an entry upon a condition broken alienation in Mortmain or upon a disseisin in these cases if that party enter again upon his own land which he gave in exchange as hee may hereby the whole exchange is determined But if after the exchange is perfect one of the parties doe enter upon the land he doth give in exchange this doth not make void the exchange neither may the other party hereupon enter upon the land he doth give in exchange but he may have an assise or an action of Trespasse against the other And yet if an exchange of a common for a way Perk. Sect. 299. or a rent or the like if the one party deny the common it hath been said the other party may deny the way or the rent Sed quaere If an exchange be made of fee between two of a Manor whereof Bro. Exchange 8. Perk. Sect. 297. the one half is in tail and the other half is in fee simple and the tenant in tail that made the exchange die and his issue disagree to it so that the exchange of the tailed land is become void this doth determine the whole exchange for when an exchange becometh void in part it becometh void in all and untill it be avoided it is good for all As if one be seised of white acre and he exchange white acre and black acre which is none of his with another for two other acres this shall continue for a good exchange and not be avoided untill he that hath right to black acre doth evict him that hath it in exchange If an exchange be made by tenant in tail and his issue after his Co. 4. 122. Perk. Sect. 296. 294. 290. 298. death waive the possession of all or part of the land taken in exchange and disagree to the exchange hereby the whole exchange is determined So if the wife after the husbands death the infant at his full age or the heir of him that is de non sane memorie disagree to the exchange of the husband the infant or him that is de non sane memorie hereby the whole exchange is determined and no subsequent agreement can make it good again If two doe make an exchange by word of mouth and after before 15 E. 4. 3. either of them enter they make Indentures of the lands exchanged and grant the same from one to another it seems hereby the nature of the exchange is changed and the exchange determined The parties themselves and all privies and strangers for the most Perk. Sect. 285. Co. 1. 105. Dier 285. Perk. Sect. 290. 294. 298. Co. 1. 98. part may take advantage of such exchanges as are void for the defects 7. Who may take advantage of a void or voidable Exchange Or not And when Infant before named But when the exchange is only voidable contrà And therefore when an exchange is made by an infant the infant himself at his full age or his heir and none other may avoid it And when an exchange is made by a tenant in tail the issue in tail after the death of his auncestor and none other may Tenant in tail avoid it And when an exchange is made by the husband or husband and wife of the wives land the wife after the husbands death Husband and wife Home de non sane memorie or heir of the wife after her death and none other may avoid it And when an exchange is made by a man of nonsane memorie his heir after his death and none other may avoid it But in all these cases of infant tenant in tail woman covert and a man de nonsane memorie and where lands are recovered by an elder title the other party may not enter and avoid the exchange untill the infant issue in tail woman or heir of him that is de nonsane memorie or him that doth lose the land by an elder title doth first enter If an infant exchange lands and after at his full age occupy the 8. Where an Exchange voidable at first doth become good by matter ex post facto Or not lands taken in exchange for his own lands hereby the exchange is Co. super Lit. 51. 12 H. 4. 11. Perk. Sect. 290. 294. Fitz Eschange 13. Perk. Sect. 291. 279. 293. 298. made good So if tenant in tail exchange his intailed lands with another and after his death the issue occupy the lands taken in exchange by his auncestor hereby the exchange is made good for the life of the issue in tail So if the husband and wife exchange the lands of the wife for other land and she after her husbands death Tenant in tail Husband and wife agree to it and enter into and agree to the lands taken in exchange hereby the exchange is made good but if the husband alone make an exchange of his wives land and she after his death agree to this and enter into the land it seems this will not make the exchange good And if a man seised of land in right of his wife in fee thereof infeoff a stranger and take an estate back again to him and his wife and a third person in fee and they three join in exchange of the same land in fee for other lands to a stranger in fee and the exchange is executed and the husband dieth and she doth occupy the land taken in exchange with the other third person hereby the exchange is made good If a man de nonsane memorie make an exchange and his heir after his death enter into the land taken by his auncestor in exchange and agree to
the exchange hereby the exchange is made good And in all these cases when the exchange is once by agreement made good it can never by any subsequent disagreement be afterwards made void And now from hence we come to a Surrender a speciall way or means for the giving or transferring of something to another that hath already some interest into the same thing CHAP. XVII Of a Surrender A Surrender properly taken is the yeelding or delivering up of Co. super Lit. 337. 1. Surrender Quid. lands or tenements and the estate a man hath therein unto another that hath a higher and greater estate in the same lands or tenements But it is sometimes improperly applied to other things He that doth surrender is called the surrendror and he to whom it Surrendror Surrendree is made is called the surrendree And there be three kinds of surrender viz. A surrender properly 2. Quotuplex Co. super Lit. 337 338 Co. 6. 69. Plow 106 107. West Symb. 1. part lib. 2. chap. 460. taken at the Common law 2. A surrender by custome of lands holden by custome or of customary estates whereof we speak not here 3. A surrender improperly taken as of a deed or grant of a rent-charge of a patent and of lands in fee simple to the King The surrender properly taken is of two sorts 1. Expresse or in deed which is when it is done by apt words and the expresse agreement of the parties 2. In law or implied which is when it is wrought by consequent and operation of law or when the law doth interpret or enure something done to another intent to make a surrender of it And in the first case it is sometimes by word only and sometimes by writing And when it is by writing it is said to be an instrument testifying by apt words that the particular tenant of the lands or tenements for life or years doth consent and agree that he which hath the next and immediate remainder or reversion thereof shall also have the particular estate of the same in possession and that he yeeldeth the same unto him The fruit and effect of a surrender is that it doth passe the estate Co. super Lit. 338. Co. 1. 96. Bro. surrender 47. Perk Sect. 591. 3. The effect of i◠of the surrendror to the surrendree and that hereupon the estate of the surrendror is drowned and extinct in the estate of the surrendree And yet not so but that to some purposes it shall bee said to have continuance still And therefore if tenant for life grant a rent-charge and after doth surrender his land in this case the rent-charge shall continue notwithstanding the surrender So if lessee for life make a lease for years rendring rent and the lessee for life surrender his estate in this case albeit the primitive estate Extinguishment for life be yeelded up yet the derivative estate for years shall continue notwithstanding but the surrendree shall not have the rent reserved upon the lease for years So if lessee for life or years break a covenant with his lessor and after surrender his estate to him his Covenant breach of covenant is not hereby salved for the lessor may have an action of covenant still notwithstanding the surrender And if one seised of land grant a rent out of it in fee and this rent is extended Co. 8. 145. 2. 39. Bro. Sur. 42. on a statute or granted for lesse time to another and then the grantee doth surrender the deed of the grant of the rent to the tenant of the land in this case the rent shall continue as to him that hath execution and the grantee And if one make a lease for years rendring rent and the lessee surrender his estate to the lessor hereby the rent is extinct but if the lessor grant the rent to a stranger before the surrender contrà And if one lease for years and the lessee let parcel of his term to his lessor rendring rent and after the lessee surrender his whole estate in this case it seems the rent is determined If lessee for life or years take a new lease of him in reversion of 14 H. 8. 15. Plow 194. Dier 28. Co. 10. 67. the same thing in particular contained in the former lease for life 4. What shall be said a surrender in law of lands And by what means an estate shall be surrendred in law Or not By acceptance and taking of a new estate or years this is a surrender in law of the first lease As if lessee for his own or anothers life in possession or reversion take a new lease for years Or a lessee for forty years take a new lease for fifty years the first lease in both these cases is surrendred And this rule holdeth albeit the second lease be for a lesse time thē the first as if lessee Perk. Sect. 617. Co. 5. 11. for life accept a lease for years or lessee for twenty years accept a lease for two years And albeit the second lease be voidable as being Fitz. Surrender 3. Co. super Lit. 218. 37 H. 6. 17. made upon condition as if lessee for twenty years take a new lease for twenty years upon condition that if such a thing happen the second lease shall be void and the thing doe after happen in this case both these leases are become void As where the lessor doth grant the reversion to the lessee upon condition and after the condition is broken Or if the second lease be made by tenant in tail Dier 140 141. or the like as if a man make a lease for years of land and then make a feoffment to another of the land and then take back an estate to him and his wife of the land and then make a new lease to the lessee for ten years this is a surrender in law of the first lease But if the second lease be meerly void then it is otherwise And therefore if the lessor doe by words of covenant only promise to Dier 272. his lessee that he shall have a new lease and doe never actually make him this is no surrender in law a Dier 178. 177. Co 5. 54. 55. Kelw. 70. And this rule as it seems holdeth also albeit the second lease be to the lessee and a stranger or to the lessee and his wife and albeit the second lease be by Dier 140. 141. 1. word only and the first lease be by deed if so be that the thing granted by the lease be such a thing as may passe by word without writing and albeit the second lease be in another right as if the Dier 178. husband have a lease for yeares in the right of his wife and then take a new lease to himself in his own name and albeit the first Pasc 40 El. Co. super Lit. 338. Co. 6. 69. 10. 53. 67. 5. 11. Dier 280. lease be to begin presently and
Co. super Lit. 338 Per sect 600 Bro. sur 4. surrender A lessee for life or years may surrender to him that is next in remainder in fee simple or fee tail or to him in reversion in fee and this is a good surrender and a surrender as it seems may be made to the grantee of the reversion before atturnment so as atturnment be afterwards made And in case of the surrender of Dier 251. 358. 280. an estate for life there needs no livery of seisin as in case of the grant Livery of seisin of an estate for life A lessee for years of a term to begin at a day Perk. Sect. 601 602. 4 H. 7. 10. Co. 6. 69. to come cannot surrender it by an actuall surrender before the day the term begin as he may by a surrender in law a Perk. Sect. 600 601 602 603. If lessee for life be disseised or lessee for years be ousted and before his entry or the getting of the possession again he surrender his estate to him in reversion this surrender is void So if a woman that hath title of dower surrender it to him in reversion before she hath recovered it this surrender is void And yet if lessee for years after his term is begun before his entry when no body doth keep from him the profits doe surrender his estate it seems this is a good surrender but if another enter before him and keep him out it seems otherwise If there be lessee for years the remainder for life the remainder or reversion in fee the lessee for years be outsted he that Perk. Sect. 605. Dier 251. outsted him die seised then the lessee for years enter and then the tenant for life surrender to him in remainder or reversion in fee this is not a good surrender for there is in this case but a bare right of remainder for life and in fee but if the lessee for years had not been ousted it had been a good surrender If there be lessee for years the remainder for life the remainder in fee the lessee for years may surrender to the lessee for life and so may the tenant for life to him in remainder or reversion in fee but if there be tenant for life the remainder for life the remainder in fee in this case the second tenant for life cannot surrender to him in remainder in fee. If a lease Perk. Sect. 588. bee made for life or years to A the remainder for life to B the remainder in fee tail to C and the first tenant for life or years doth surrender to C or to the lessor B being the next in remainder for life being then living this is not a good surrender neither can it take effect as a surrender in respect of the intervenient estate And so some say the law is if the middle remainder be but for years only as if a lease be made for years the remainder for years and the first termor surrender his interest to the lessor this is no good surrender Sed quere For it should seem that a future iuterest will Dier 112. Plow 190. Dier 93. Plow 432 433. no more hinder an actuall surrender of the first lessee then a surrender in law And so also it seems the law is for a concurrent lease which for the latter part of it is in the nature of a future interest But if in this case it fall out the middle remainder be void as where a lease is made to A for life or years the remainder to a monk who is a person uncapable for life or years the remainder to I S in fee in this case A the first tenant may surrender to him in remainder in fee and the surrender is good If lessee for 20 years make a Perk. Sect. 604. 14 H. 7. 3. Plow 541. Bro. Sur. 16. lease for 5 years and the lessee for 5 years enter and after the lessee for 20 years surrender to him in reversion or remainder this is a good surrender So also if the two lessees join in the surrender So also if the first lessee surrender first and the lessee for 5 years surrender after But if the lessee for five years surrender to him in the reversion or the remainder before the surrender of the lessee for 20 years this cannot take effect as a surrender for two causes 1. Because there is a remnant of the term as an intervenient estate to hinder the drowning of the terme 2. Because there wants a privity between the lessee for five years and him in reversion If tenant Bro. sur 9. Fitz. sur 10. in fee simple surrender to the Lord Paramount of whom the land is held this can never take effect as a surrender unlesse it be in a speciall case where the Lord hath cause to have a Cessavit So if tenant in tail surrender to him in remainder or reversion in Perk. Sect. 590. Perk. Sect. 589. Co. super Lit. 42. 3. 61. Perk. Sect. 590. fee simple this cannot take effect as a surrender So if lessee for life surrender to him in remainder for years or tenant for the life of B surrender to him that hath an estate for the life of C these are void surrenders for the estates of them to whom they are made are not capable of such surrenders for they are not greater then the estates of the surrendrors and therefore not able to drown the estates surrendred And yet if lessee for the life of another or for his own life surrender his estate to him in remainder that is tenant for his own life this is a good surrender for an estate for a mans own life is greater in judgement of law then an estate for another mans life And hence it is that if a lease bee made to two for their lives the remainder to a third person for his own life and one of the first tenants for life surrender his estate unto him in remainder for life this is a good surrender for a moity If lessee Co. 2. 66. for life or yeares surrender to him in remainder or reversion that hath no good estate in the remainder or reversion as where the remainder or reversion is granted by word only or being granted by deed there is no atturnment of the tenant to the grant or the the like this surrender is not good And yet if tenant in taile Co. super Lit. 338. make a lease for life whereby he gaineth a new reversion but defeasible and the tenant for life doth surrender to the tenant in tail this shall be a good surrender So if a woman inheritrix have a husband and they have issue a sonne and the husband dieth and she take another husband and he letteth the land for life and the wife dieth and the tenant for life doth surrender his estate to the second husband this is a good surrender to most purposes If a feme sole be seised of land in fee
and she make a lease thereof Perk. Sect. 622. to a stranger for life and then take a husband and the lessee surrender to the husband this is no good surrender neither can it enure so because he to whom it is made hath not the reversion in his own but in his wives right It is further also required in every good surrender that if it be Bro. sur 2. 8. Fitz. Partition 5. Perk. Sect. 583. 2. In respect of the place where it is made And where the surrender of lands in one County may be good for the lands that doe lie in another County Or not 3. In respect of the matter or thing And of what things a surrender may be made Or not made by word and without deed that then it be made in the same County where the land to be surrendred doth lie but by writing a man may make a surrender of lands that doe lie in any other County and in what place soever it doth lie And a surrender may be by word or writing of lands lying within the same County in any place out of the land And therefore if tenant for life surrender to him in reversion in any place out of the land within the same County and the surrendree agree to it the freehold is in him presently 3. That it be made of such things of which a surrender Bro. surrend in toto Per. chap. Sur. in toto Co. 5. 11. super Lit. 338. may be made For surrenders may not be made of estates in fee simple or fee taile nor yet of rights or titles onely of estates for life or years nor yet of part of an estate for life or years as if a man have a lease for ten years he cannot surrender the last seven years and keep to himself the three years But otherwise one may surrender any kinde of estate for life as by dower by the curtesie or as tenant in tail after possibility of issue extinct or for years or years determinable upon lives and that of any mesuages houses lands commons rents or the like that are grantable from one to another and such surrenders are good 4. That there be Perk. Sect. 607 608 609. Dier 251. Bro. sur 1. 35. 37. 17. 21 H. 7. 7. 4. In respect of the manner And how and by what words a surrender may be made And where it may be made without deed and upon condition Or not words or words and deeds sufficient to make the mind of the surrendror to appear that he is willing and desirous to part with and yeeld up the thing surrendred into the hands of the surrendree And herein it is to be known that albeit the words Surrender Give or Yeeld up be the most significant proper words whereby to make a surrender yet any other words especially if it be in the surrender of a lease for years that do testifie and declare the will and assent of him that is the particular tenant that he in the remainder or reversion shall have the estate of the tenant be sufficient to passe the estate by way of surrender And therefore if lessee for life or years doe by word or writing say That he will hold the land no longer and wish him in reversion or remainder therefore to enter Or that it is his desire that he shall enter into the land and have it and his estate therein Or that he is content that he shall have his estate or have his lease such or any such like declaration as this made to him in reversion or remainder will be a good surrender So if Hil. 37 El. B. R. Sleigh Batemans case lessee for years deliver his Indenture to a stranger to deliver it and all his estate up to him in reversion and doe appoint the stranger to deliver and surrender it to him in reversion and he doe so and he in reversion accept thereof this is a good surrender but otherwise it is of an estate for life So if the particular tenant doe by the words Give Grant or Confirm passe his estate to him in reversion and he doe enter and agree to it this is a good surrender And by all these surrenders the estates wil passe by way of surrender except it be in some speciall cases where the intent of the parties doth plainly appear to bee that the estate shall not passe by way of surrender But if a lessee for life or years doe onely goe from the house or land and carry away his goods and cattell and so waive the possession for a time either because the lessor shall not distrain them for rent behind or the like and thereupon the lessor doth enter and enjoy it this is no surrender neither is this a good yeelding up of his estate And in such a manner and by such words as before any thing that may be Perk. Sect. 581 582. 583. Fitz. sur 1. Co. super Lit. 338. granted by word without writing may bee surrendred by word without writing so as it be made within the same County where the thing surrendred doth lie And this holdeth true albeit the estate to bee surrendred were created by deed But such things as commons rents advowsons reversions remainders and the like that cannot bee granted without deed cannot bee surrendred without deed And therefore if a lease be made for life the remainder for life by word of mouth without any writing he in the remainder for life cannot surrender his remainder for life without deed So where one hath a rent advowson or the like as tenant in dower or by the courtesie this cannot bee surrendred Dier 251. Bro. Sur. 16. without deed And in case where there is any speciall matter to be contained in the surrender as reservation of rent condition or the like there for the most part it must be by deed or it will not be good And therefore if tenant for life declare himself by word of mouth to be contented and agreed that he in the reversion shall have the land and his estate therein rendring ten shillings a years rent or paying such a summe of money or upon condition that if he survive the lessor he shall have it again Perk. Sect. 624. 623. Co. super 218. c. this is no good surrender And a surrender may be made also upon a condition precedent or subsequent as if it be with reservation of rent that if it be not paid it shall be void but if it be an estate for life that is so surrendred it seems it must be made by writing indented and so likewise it should seem the law is of the surrender of a lease for years upon a condition or however it is most safe so to doe 5. That the surrendree doe agree to and Perk. Sect. 608. Lit. Bro. 163. accept of it for untill then the surrender is not perfect but if the 5. In respect of the agreement of him to whom the
Perk. sect 619. to him in the reversion and two others that hereby they have a joint estate and the survivor shall have the whole If lessee for Co. super Lit. 335. life make a lease for his own life to the lessor the remainder to the lessor and a stranger in fee this shall enure as a surrender of the one moity and a forfeiture of the other moity If tenant for life Forfeiture Perk. sect 622. Bro. Sur. 20. 34. 23. surrender to the husband of a woman tenant in tail or in fee this shall enure as a grant not as a surrender And so also it seems is the law when the surrender is to the husband and wife And if B Bro. sur 46. be tenant for life the remainder to C in tail the remainder to D in tail and B infeoff C and S his wife in fee this shall not enure as a surrender but it is a forfeiture so that if C die without issue D may enter If there be lessee for life the reversion to two coparcenours Perk. Sect. 623. 21. H. 7. 40. and one of them take a husband and the lessee doth grant his estate to her and her husband this shall not enure as a surrender but as a grant And yet if tenant for life doe grant his Bro. sur 34. estate to the husband and wife she having the reversion if she be an infant and within age at this time it seems this shall enure as a surrender not as a grant If tenant for life or years and he in Plow 140. Dier 358. 3. When it is done with him in reversion or remainder reversion or remainder by word without deed join in a feoffment it shall be said the surrender of the estate for life or years to him in the reversion and the feoffment of him in reversion But if he in reversion infeoff the tenant for life without any deed this shall enure first as a surrender of the lease for life and then as a feoffment See more in Deed Numb If I have a rent in fee for life or years issuing out of another mans 14 H. 7. 2. Perk. Sect. 591. 585. 606. 590. 596. 598. 8. Where a deed or rent may be surrendred And how such a surrender shall enure or be taken Manor or other lands I may surrender it for if I deliver the deed of the grant of the rent to be cancelled unto any one that hath any estate of the Manor or land in fee simple for life or yeares in possession or remainder either solely by himself or jointly with others this is a good surrender and hereby the rent is extinct and gone But one that is tenant in tail of a rent cannot surrender it neither wil the delivering up of the deed in this case determine the rent And if one be seised of land out of which a rent is issuing in fee and Perk. Sect. 594. is disseised and during the disseisin the grantee of the rent surrender his rent and give up his deed it seems this doth not extinguish the rent yet hath the grantee no remedy for his rent when he hath delivered up his deed And yet if one be seised of land in fee out of Perk. Sect. 595. which a rent is issuing in fee and he die without heir so that the land escheat and before the Lord enter upon his escheat he that hath the rent doth surrender the deed of the rent to the Lord it seems this is a good surrender to extinguish the rent And if the Perk. Sect. 597. grantee of a rent-charge in fee grant the same to him in fee that is seised of the land in fee this shall enure to extinguish the rent but if he grant it to one that hath only an estate for life contrà And now by this time it is high time we come to Confirmations and Releases which serve to enlarge and amend the estate and interest that a man hath in a thing already CHAP. XVIII Of a Confirmation A Confirmation is the conveyance of an estate or right that one 1. Confirmation Quid. Terms of the law Co. super Lit. 295. hath into lands or tenements to another that hath the possession thereof or some estate therein whereby avoidable estate is made sure and unavoidable or whereby a particular estate is increased and enlarged And this albeit it may be made by other words as by Dedi or Concessi which are generall words and serve to make a grant feoffment lease release c. yet it is most commonly and properly made by these words Confirmasse Ratificasse approbasse which doe signifie ratum firmum facere supplere omnem defectum And he that makes the confirmation is sometimes Confirmor Confirmee 2. Quotuplex called the confirmor and he to whom it is made the confirmee There are two kinds of confirmations viz. a confirmation implied Co. super Lit. 295. Plow 140. Lit. Sect. 515. Co. 9. 142. or in law which is when the law by construction makes a confirmation of a deed made to another purpose and a confirmation expresse or in deed which is when the act done or deed made is intended for a confirmation And both these are always in writing The latter is properly called a deed or instrument of confirmation and is made after this manner Noveritis universi c. me A de B ratificasse approbasse confirmasse C de D statum possessionem quos habeo de in uno Mesuagio c. cum pertinen in F c. A confirmation is also distinguished by his effects for sometimes it doth tend and serve to confirm and make good a wrongfull and defeasible estate or to make a conditionall estate absolute And then it is said to be confirmatio perficiens And sometimes it doth tend and serve to increase and enlarge a rightfull estate and so to passe an interest And then it is called confirmatio crescens And sometimes it doth tend and serve to diminish and abridge the services whereby the tenant doth hold And then it is called confirmatio diminuens The nature and work of this where it doth find a foundation to 3. The nature and operation of it in generall Co. 146 147 Dier 109. 7 H. 6. 7. Lit. Sect. 539. Co. 9. 142. work upon is either to increase and enlarge the estate of him to whom it is made from a lesser to a greater and to give him some new interest he had not before or to corroborate and perfect the estate that was imperfect before or to change the quality of it from an estate upon condition to an absolute estate or otherwise for this a confirmation will doe In some cases also it will extinguish rights and titles of entry But it will not make an estate good that is meerly void nor add nor take from an estate a descendible quality and make a man capable of it that is
these confirmations are good But in all these kind of confirmations care must be had of the manner of penning them and that in every such deed there be a limitation of the estate i. That these words be inserted To have and to hold the tenements c. to him and his heires or to him and the heires of his body or to him for terme of life or yeares as the agreement is for if lessee for life make a lease for yeares and then lessee for life and he in reversion confirme the land To have and to hold to him for life or to him and his heires these words will make the estate to increase But if the confirmation be made to the lessee for life or for yeares of Lit. Sect. 524. 545. Plow 540. his terme or estate and not of the land As when he doth confirme his estate To have and to hold his estate to him and his heires this doth not increase the estate And yet if he confirme the land To have and to hold the land to him and his heires this will increase the estate Et sic de similibus If the husband have an estate of land for life or yeares in the Co. super Lit. 299. plow 160. Lit. Sect. 525. Fitz. Confirmation 7. 17. right of his wife or to them both for life and a confirmation to him alone of his estate or of the land To have and to hold the land to him and his heires this is a good conveyance of the fee simple to him after the death of his wife And if I let land to a woman sole for the terme of her life who taketh a husband and after I doe confirme the estate of the husband and wife To have and to hold for terme of their two lives this is good but it shall enure only to enlarge his estate for terme of his life it he survive his wife But if one lease to another for life and after confirme the estate of the lessee to him and his wife for terme of their two lives this is void as to the wife If one grant a rent-charge out of his land for life and after the Lit. Sect. 548 549. grantor confirme the estate of the grantee in the rent without any clause of distresse To have and to hold to him in fee simple or fee taile this confirmation is not effectuall to enlarge the estate But if a man be seised of an old rent-charge or rent-service and grant the same first for life and after confirme the estate of the grantee in fee simple or fee taile this is good and will enlarge the estate accordingly If tenant for life grant a rent out of the land to one and his heirs Co. 1. 147. during the life of the lessee for life and after the lessor confirme the rent to the grantee and his heires it seems the estate is not hereby enlarged but when the tenant for life doth die the rent shall cease This kind of confirmation may be made by the same words as Co. super Lit. 301. Fitz. Confirmotion 23. the former viz. by the words Give Grant or Demise But neither of these may be made by the words Surrender Release Exchange or the like for these are peculiar words destined to a speciall end being proper and peculiar manner of conveyances And yet if I that am a lessor do say to my lessee for yeares by my deed I will that you shall hold the land for your life this is a good confirmation to increase the estate by this word volo only So if I grant to my lessee for yeares that he shall hold the land for terme of his life this without any other words is a good confirmation By a confirmation the Lord may confirme the estate of his tenant Co. 9. 142. Lit. Sect. 538. which holdeth by Knights service to hold in Socage or to hold for 3. To diminish or a bridge the services c. a lesse rent or to hold at common law where before he did hold in ancient demesne and such a confirmation is good But such a confirmation as is to hold by new services as a rose for money or the like is not good for that purpose And in this case there must be also a privity And therefore if there be Lord mesne and tenant and the Lord confirme the estate of the tenant to hold by lesse services this is void And if the Lord confirme to his tenant after he is disseised before his entry to hold by lesse services this is void A confirmation may be by apt words in case of a lease for yeares for part of the time but in case of a free hold it cannot be so And 6. Where a confirmation may be good for part of the estate or for part of the thing Or not Co. 5. 81 82. Lit. Sect. 5 19. Co. super Lit. â—97 Lit. Sect. 520. so also it may extend to part of the thing before in estate And therefore if a disseisor tenant in taile husband of the land he hath in the right of his wife or lessee for life make a lease for yeares and the disseisee issue in taile wife or less or make a confirmation of all the land for part of the time or of part of the land for all the time this confirmation is good But if any such person make a lease for life gift in taile c. the disseisee cannot confirme part of the estate but he must confirme all And therefore if he confirme his estate for one houre it is a confirmation of the whole estate And so also if he confirme the land to the disseisor himselfe but one houre one week one yeare or for his life c. this is a good confirmation of the estate for ever And if it be a lease for yeares that is confirmed care must be had to the manner of the confirmation for if the confirmation be of the estate or the terme for one houre this is a good confirmation for the whole time and therefore the confirmation must be had of the land To have and to hold for part of the terme and being so made it may be good for that time only and no longer If I make a feoffment on condition and before the condition broken 11 H. 7. 29. Co. 1. 146. 9. 142. 7. The force and virtue of it And how it shall enure and be construed and taken I confirme the estate of the feoffee absolutely this will not extinguish the condition And yet if the condition be broken first so as my entry is lawfull in this case the confirmation will extinguish the condition And if the feoffee make a feoffment over absolutely to another and I confirme the estate of the second feoffee whether it be before or after the condition broken by this the condition is discharged If the Lord confirme the estate of his tenant in the tenements or one that hath a rent common
But if he confirme the land for twenty yeares it Noâ—e may be good for that tine only and no longer wherein as in divers other cases before observe that the very words whereby the confirmation is made are much to be heeded for Parols font plea. If tenant in taile or for life of land letteth it for yeares and after Lit. Sect. 606 607. 610. confirme the land to the lessee for yeares To have and to hold to the lessee and his heires for ever by this the lessee hath only an estate for terme of the life of the tenant in taile or for life and therein his lease for yeares is extinct If tenant for life doth grant a rent to another and his heires during Co. 1. 147. super Li. 301. the life of the tenant for life and the lessor confirme to the grantee and his heires this shall be construed to be an estate for life only and no enlargement of the estate But if tenant for life grant a rent-charge in fee and the lessor confirme it this shall be construed to be a confirmation of the fee simple See more in Exposition of Deeds cap. 5. in toto And more also in the chapter of Release whereunto we are now come in the next place CHAP. XIX Of a Release A Release is the giving or discharging of the right or action Terms of the law West Symb. lib. 2. Sect. 466. 1. Release Quid. which a man hath or may have or claime against another man or that which is his Or it is the conveyance of a mans interest or right which he hath unto a thing to another that hath the possession thereof or some estate therein And this albeit it may be made by other words as Dedi Concessi or Renunciasse or such like yet it is most commonly and properly made by these words Remisisse Relaxasse quietum clamasse all which are much to one purpose He that Relessor Relessee makes the release is sometimes called the relessor and hee to whom it is made the relessee There are two kindes of releases like unto those of confirmation Co. super Lit. 264. 265. 2. Quotuplex viz. a release expresse or in deed and that is a purposed release when the act done or deed made is intended a release And this is alwaies done by writing And then it is defined by some to be an Instrument whereby estates rights titles actions and other things be sometimes extinguished sometimes transferred sometimes abridged and sometimes enlarged which is after this manner Noverint c. me A de Bremisisse relaxasse omnino de me vel prome hered meis quietum clamasse C de D totum jus titulum clameum que habui habeo vel quovismodo in futuro habere potero de in unto mesuagio cum pertin in F c. And a release implied or in law and that is when the law by intendment and construction and by way of consequent doth make a release of an act done to another purpose And this is sometimes by writing and sometimes without writing These releases also are sometimes of a bare and naked right and sometimes of a right accompanied with some estate or interest And sometimes they are of actions reall or in lands or tenements and sometimes of actions personall of or in goods or chattells and sometimes of actions mixt partly in the realty and partly in the personalty A release is much of the nature of a confirmation for in most 3. The nature and operation of it in generall Co. super Lit. 193. 273. 277. Co. 1. 147. Lit. Sect. 606. 459. 465 466. 446. things they agree and produce the like effects This therefore is said sometimes to enure by way of mitter le estate i. by way of giving or transferring or enlargement of an estate or interest and so doth give some new interest or estate to him to whom it is made And sometimes it is said to enure by way of mitter le droit only i. by way of giving transferring and discharging of a right title or entry unto him to whom it is made And so it doth sometimes perfect an estate that was imperfect and defeasible before and enure by way of entry and feoffement And sometimes also it doth enure to make a conditionall estate absolute And sometimes also it doth worke and enure by way of extinguishment or discharge And then also sometimes it doth enure by way of discharge or extinguishment as against all persons and so as that whereof all persons may take advantage And sometimes it doth enure only as a discharge against some persons only and as to or against other persons by way of Mitter le droit And some of these in deed enure by way of extinguishment for that he to whom the release is made cannot have the thing released And some of them have some quality of such releases and are said to enure by way of extinguishment but in truth doe not for that he to whom the release is made may receive and take the thing released And in some cases also a release like a confirmation doth enure by way of abridgement But a man cannot barre himselfe hereby of a right that shall come to him hereafter And therefore it is held that these words used in releases quae quovismodo in futuro habere potero are to no purpose Lands tenements and hereditaments themselves may be given 4. What things may be released Or not And how and transferred by way of release and all rights and titles to Co. 10. 48. super Lit. 268. 269. 266. lands may be given barred and discharged by release and so also may rights and titles to goods and chatteâ—ls Also all actions reall personall and mixt may be given discharged or extinct by release for howsoever rights and titles of entry cannot be granted by act of the party nor any action may be granted from one man to another by act of the law or the party yet all these may be released to the terretenant And a right to a free hold or Inheritance seigniory or rent in presenti or futuro may be released five manner of waies and the first three waies without any privity at all 1. To the tenant of the free hold in deed or in law 2. To him in the remainder 3. To him in reversion The other two waies in respect of privity without any estate or right as by demandant to vouchee donor to dones after the donee hath discontinued Also conditions annexed to estates powers of revocation of Bro. Release in toto uses warranties covenants tenures services rents commons and other profits to be taken out of lands may be discharged extinguished determined by release to the tenant of the land c. Also possibilities of land c. if they be neere and common Co. 10. 47. 51 52 5. 7â— 71. super Lit. 265. Lit. Sect. 446. Co. 1. 111. 111. Dier
sum this is no discharge of it And yet a release of the promise is a discharge of it And if A promise to me that if Hil. 16 Jac. B. R. Briscoe versus Heires I S doe not pay to me an hundred pound 1 Octobris that hee doth owe me that A will pay me the hundred pound 1º Novembris and I 10º Septembris release to him this debt or all actions demands in this case this release is not good to discharge this promise But by a release of the promise the same is discharged If a man release to another all actions and doe not say further Of actions Bro. Release 29. which he hath against him this is as good a release as if these words were inserted Quod necessario subintelligitur non deest And all these releases must be made by apt words and such as Co. 9. 53. law shall judge sufficient for that purpose And in all these cases care must be had there be no mistake Bro. Release 56. 58. for mistakes will make releases and confirmations void as well as other grants And therefore if A make a release to B in this manner Noveritis c. me A de B remisisse c. B omnes actiones quas idem B habet versus A whereas it should be quas idem A habet versus B this release is void If there be Lord and tenant and the Lord purchase the tenancy 8. What shall be said a Release in law Or not And how Co. super Lit. 264. by this means the services are released and extinct in law And if the Lord disseise his tenant and make a feoffment in fee by deed or without deed this is a release in law of the seigniory Of a seigniory Of a right to land If a disseisee disseise the heir of the disseisor and make a feoffment Co. idem with or without a deed this is a release in fee in law of the right And if he make a lease for life this is a release in law of the right so long as the lease doth last If a creditor as an obligee or the like make a debtor as the Of a right of action Co. super Lit. 264. 8 E. 4. 3. 21 E. 4. 2. obligor c. his executor by this means the action is released by act of law and yet the duty remains still for the executor may Executor retain so much of the goods of the testator And if the creditor be a woman and she mary with the debtor by this the debt is released in law And if there be two obligees or debtees and one of them being a woman is maried to the obligor this is a release in law of the debt albeit the creditor be an infant But if there be a woman executrix to the debtee and she take M. 30 31 El. B. R. Adjudge Co. 8. 136. the debtor to husband this is no release in law And if an obligor be made administrator of the goods and chattels of the obligee this is no release in law Where divers join in any suit or action to recover any personall Co. 6. 25. 5. 22. Bro. Release 84. 94. stat 23 H. 8. ch 3. 9. The force and virtue of it And how it shall enure and be construed and taken thing of which they are to have the joint benefit or interest when the law doth not compell them to join there the release of one of them shall bar all the rest And therefore if two men join in an action of debt trespassel or the like and one of them alone 1. In respect of the persōs And where a release made by one shall binde another And where not And where a release made to one shall enure to others Or not doth release to the defendant this is a barre to the other plaintiffs also So if a statute or an obligation be made to two or more and one of them release it to the conusor or obligor this is a discharge of the whole duty and a bar to the rest so that they can make no use of the statute or obligation But if divers be charged in any action and they for the discharge of themselves only join in a suit or action where also they can doe no otherwise being compelled by law to join in this case the release of one of them shall not hurt the others And therefore if divers join in a writ of Error Attaint or Audita querela and one of them release to the defendant in the writ this will not bar the rest of their remedy but they may goe on in their suit notwithstanding If there be two or more executors and one of them alone release 1◠H. 7. 4. Executors a debt or duty to the testator before judgement had in a suit had by all the executors against the debtor this will bar all the rest But otherwise it seems it is after judgement had If a writ of ward be brought by two and one of them release Co. super Lit. 205. this shall not bar his companion but shall enure to his benefit for hereby he shall have the whole ward A release made to the tenant in tail or for life of the right Lit. Sect. 452. 470. Co. super Lit. 275. 290. 267 268. Co. 8. 351. to the land shall avail and enure to him that hath a reversion or remainder in deed And so è converso A release made to him that hath a remainder or reversion will avail and enure to the benefit of him that hath the estate tail for life or years precedent As if a disseisor make a lease for life and the disseisee release to the tenant for life this shall enure to the disseisor So if he or a tenant for life make a lease for life the remainder for life the remainder in tail the remainder in fee and the disseisee or first lessor doth release all his right to any one of them in remainder this shall enure unto and benefit all the rest And if the husband make a lease of his wives land to one for life the remainder to another in fee and the wife after his death doth release all her right in the land to him in remainder this shall enure to the lessee for life If a disseisor make a lease for life and the disseisee release all Co. super Lit. 275. his right to the tenant for life this shall enure to the benefit of the disseisor But if the disseisee release no more to the tenant for life but all actions this release will not benefit him in remainder or reversion after the death of the tenant for life If a disseisor make a feoffment to two in fee and the disseisee Lit. Sect. 472. release to one of the feoffees this shall enure to both If tenant in tail be disseised by two and he release to one of Co. super
former Also upon a Statute Merchant one may have an Action of debt but otherwise upon a Statute Staple and the Capias upon the Statute Merchant may be returnable in the Kings Bench or Common-Place but the writ of Execution upon the other is to bee returned in the Chancery The proceeding upon the other sort of Recognisances are after another manner for upon Recognisances at the common Law if Dyer 36â— 315. Kelw. 100. West 2 chap. 18. Broo. execution 129. Coo. 3. 11. 15. H. 7. 16. Kitch 117. the money be not paid at the day the Conusee his Executor or Administrator is to bring a Scire facias against the Conusor or if hee be dead against his heires when they be of full age or if the lands the Conusor had at the time of entring into the Recognisance be sold against the purchasers of these lands which the Conusor had at any time after the Recognisance entred into to warne them to come into that Court whence the Scire facias cometh and to shew cause why execution should not bee done upon the said Recognisance and if the party or parties cannot be found to be warned or being warned do not appear at the time or appearing shew no cause why the debt should not be levied then the Conusee shall Elegit have execution of a Moity of his lands by Elegit or if the Conusor be living of all his goods by Levari or Fieri facias at his election Levari facias but he cannot have execution of his body unlesse he bring an Action of debt upon the Recognisance or it be by course of the Fieri facias Court as it is in the Kings-Bench upon a Baile in which case a Capias doth lie Capias The proceeding against the Sureties in Statutes shall be as the Sureties Stat de Mercatoribus proceeding against the Principall but in case where there are moveables of the Principall to satisfie the debt the Suretie as it seems shall not be charged When a man doth enter into a Statute or Recognisance the land 5. What things are subject and liable to execution upon a Statute or Recognisance And when and how And what not Plow 72. Coo. 10. â—0 51. Bro. St. Marchant of the Conusor is not the debtor but the body and the land is lyable only in respect that it was in the hands of the Conusor at the time of acknowledging of the Statute or after and the land is not charged with the debt but chargeably only at the election of the Conusee but the person is charged and the land is chargable in respect of the person and not the person in respect of the land And therefore albeit the Conusor alien his land to another yet he remaines debtor still and his body and his goods shall be taken in execution and yet when execution is sued upon the land the land is charged and become debtor also First in respect of the nature and quality of the things themselves The body of the Conusor himself but not the body of his heire 〈◊〉 de Meâ—catoribus Coo. 3. 12. Plow 72. Coo. 2. 59 Littl. Sect. 358. Dyer 205. Broo. Stat. Marchant 44. Dyer 7. Co. super Littl. 374. executor or administrator is lyable to execution and may be taken albeit there be lands goods and chattels to satisfie the debt and all the demesne and copyhold lands tenements and hereditaments corporeall and incorporeall of the Conusor that are grantable over as his Mannors Mesuages Lands Meadowes Pastures Woods Rents Commons Tithes Advowsons and the like also all his goods and chattels as leases for yeares wardships emblements cattell houshold-stuffe and the like are liable to execution upon a Statue * Dyer 373 And therefore if a man make a lease for life or yeares and after enter into a Statute or Recognisance this reversion cum acciderit shall be subject to execution and the Conâ—sor cannot as it seemes by any sale thereof prevent it And yet the contrary hath been held for law Litt. Broâ— Sect. 227 * Doct. Sr. 53. Bâ—o St. Marcha 41. Dyer 205. And if one make a feoffment in see or lease for life reserving a rent this rent is extendable and the Conusee may distraine for it So if the lessee for life make a lease for yeares rendring a rent and then the lessee for life enter into a Statute this rent is subject to execution 1 Harâ—ingtons case pasche â— lac B. R. and it seemes the Conusee may bring an Action of debt against the lessee for yeares for it a Coo. 7. 3â— And albeit the rent become extinct by the purchase of the Conusor or otherwise yet as to the Conusee it shall be said to be in esse and subject to execution still And therefore if a rent be granted unto me for my life after the death of my wise and after I do acknowledge a Statute and then my wise die and then I release the rent to the terre-tenant this rent shall be lyable to execution But Annuities Offices in Dyer 7. Co. super Littl. 374. Doct. St. 53. Coo. 2. 59. 1. 62. trust Seigniories in Franckalmoigne Homage Fealty Rights Things in action and such like things are not liable to execution upon Statutes or Recognisances Also a remainder in taile or in see after an estate taile in possession is not liable to execution in these cases except it happen to come into the possession of the Conusor The lands tenements and hereditaments that are Copihold albeit Stat. de Mercatoribus Dyer 299. Plow 82. Coo. 7. 39. 3 12. Broo. Recognisance 7. Co. 1. 62. 13 H. 7. 22. Broo Stat. Marâ—c the Conusor have the fee simple of them yet are subject to Second in respect of the estate property and possession of the conusor in the things execution only for the life of the Conusor but his demesne lands wherein he hath an estate in fee-simple are liable to execution for ever if need require The lands the Conusor hath in jointenancy with another are subject to execution during the life of the Conusor and no longer for after his death the surviving jointenant shall have all but if the Conusor survive his companion then all the land shall bee subject to execution and the lands the Conusor hath as tenant in taile are liable to execution only during the life of him being the tenant in taile for afterwards they shall go to his issue in taile And yet if the tenant in taile after he hath entred into a Statute suffer a recovery of the land intailed in this case the land shall be subject to execution as if it were fee-simple land And the lands the Conusor hath in the right of his wife shall be charged and subject to execution only during the lives of the husband and wife together and no longer If a feoffment be made in condition to make an estate to another
chargable for so much as is committed to him as the testator or intestate himselfe for this cause the Executor is said to represent the person of the Testator for as to the estate committed to his trust he may charge others and be charged himself sue and be sued as the Testator himselfe might And the estate he hath by his Executorship is said to be in him to the use of the Testator and in his right and that he doth in the disposition of his estate is said to be in the right and to the use of the Testator also And the Administrator hath the same power and property over and in the goods and chattels the same remedy by Suit and so farr forth shall be charged as the Executor for they differ not in nature but in name only And yet the Administrator is but the Ordinaries deputy and he may revoke the Administration or call the Administrator to an account Swinb 12. Dâ—er 143. Coo. super Littl. 112. Litt. Sect. 168. Coo. 〈◊〉 â—1 A Testament is of that nature that it doth much differ from 3. The nature and effect of a Testament and of a Codicill other acts and deeds that men doe and execute in their life times for albeit it be made sealed and published in never so solemn a manner yet it hath no life nor vertue in it untill the testators death for it is a Maxime in law Omne Testamentum morte consummatunâ— est Et voluntas ambulatoria usque aâ— extremum vitae exitum it is therefore resembled untill death to the interlocutory sentence and after death to the definitive sentence of a Iudge And hence it is said Sed legum servandafides suprema voluntas Quod mandat fieriqu jubet parere necesse est a 〈◊〉 〈◊〉 〈◊〉 Sect. 30â— And for this cause a man may alter or make void his will at his pleasure and he may make as many new Wills and Testaments as he will and there is no meanes under the Sun to barre a man of this liberty b Lin. Sect. 168. Perk. Sect. â—7â— And the latter Testament doth alwaies revoke and overthrow the former but otherwise it is of a codicill c Swâ—â—b 13. 14. for a man may make as many of these as he will and make no Testament at all d Broo. Testament 20. or if he make a Testament he may afterwards make as many codiciâ—s as he will and one of them will not overthrow the other for in the first case they must be all annexed to the letters of administration and the Administrator must perform them and in the latter case they must be all annexed to the Testament and the Executor must take care to performe them e Plow 343 â—44 A Testament therefore is said to have three degrees 1. An Inception which is the making of it 2. A Progression which is the publication of it 3. A Consummation which is the death of the testator f Coo. super Litt. 112. In Grants therefore the first is of greatest force but in Testaments the last is of greatest force But when a Testament is perfect by the death of the party it doth as effectually give and transferre estates and alter the property of lands and goods as acts executed by deed in the life time of the parties 〈◊〉 for hereby discents of lands are prevented and a man may make estates in Fee-simple â—â—itt Sect. 1â—7 168. fee-Fee-taile for life or yeares of lands tenements rents reversions or services as effectually as by deed and these estates also will be good without any Livery of Seisin or Attournement And hereby also rents and power to distraine for them may be reserved conditions created and annexed to eâ—â—ates or things devised 〈◊〉 And therefore they that take by devises of lands are said to take 〈◊〉 Perk. Secâ— 505. in the nature purchasors 〈◊〉 And if therefore a tenant in taile make a Feoffment to the use of himselfe in Fee and after devise the same 〈◊〉 Dyer 221. land to his wife in fee and die the sonne is not remitted though the Father die seised for the devise doth prevent the discent To the making of every good Testament these things are requisite Coo. 6. 23. 4. What shall â—e said a good and a sufficient Testament Or not 1. That the Testator be a person able to make a Testament and not disabled for any speciall cause either in respect of his person mind or condition or in respect of the thing whereof the Testament is to be made And for this it must be knowne k Sâ—â—t 32. 34 H. 8. c. 5. Coo 4. 51. Broo. Testament 13. That a woman that hath a husband cannot make a Testament of her land First in respect of the person that doth make it and the thing whereof it is made And what Persons may make a Testament And of what things or not And how or goods except it be in some speciall cases for of her lands shee can make no Testament with or without her husbands consent l 〈◊〉 H. 7. 14. Perk. Sect. â—0â— Fitz. Executor 〈◊〉 of the goods and chattels she hath as Executrix to any other she may make an Executor without her husbands consent for if she do not so the Administration of them must be granted to the next of kin to the deceased Testator and shall not goe to the husband m Plow 526. Fitz. Executor 109. but of them she can make no devise with or without her husbands leave for they are not devisable and if shee doe devise them the devise is void And of the things due to the wife whereof she was not possessed during the marriage as things in action and the like it seemes she may make her Testament at least she may make her husband Executor n 12 H. 〈◊〉 24. 18 Ed. 4. 11. Perk. sect 501. Fit Executor 5. 28. 109. Broo Testament 〈◊〉 of her Paraphonalia viz. A Fame Covert her necessary wearing apparell being that which is fit for one of her rank some say shee may make a Testament without her husbands leave others doubt of this howbeit all agree that shee and not his Executor shall have this after her husbands death and that the husband cannot give it away from her And of the goods and chattels her husband hath either by her or otherwise shee may not make a Testament without the licence and consent of her husband first had so to do But with his leave and consent she may make a Testament of his goods and make him her Executor if shee will And it is said also that if shee do make a Testament of his goods in truth without his leave and consent and he after her death suffer the Will to bee proved and deliver the goods accordingly in this case the Testament is good And yet if the husband give his wife leave to make a Testament of his goods and she do so he may
good Devise of the land in Fee-simple or fee-Fee-taile fee-* 〈◊〉 c. 9. â—ac New mans case And if a man make a Feoffment of his land to the use of his last Will and then devise that his Feoffees shall be seised to the use of I S this is a good Devise of the land per intentionem * Plow 54â— Coo. 4. 66. 8. 95. And if I devise that I S shall have hold and occupy my land for his life this is a good Devise of the land for his life * Dye◠〈◊〉 33. 128. Coo. 1. 83. 6. 42. Dyer 4. 33. If a man have a Lease for yeares of land and he devise his Lease or his Terme or his Ferme or the profits or occupation of the land by either of these Devises his whole lease and all his interest in the land is given as well as by any other forme of words 3. A man may devise lands tenements or hereditaments in possession in Fee for life or yeares or he may devise it in reversion viz. to one for life the remainder to another in Fee or in taile or in any other sort as a man may grant it by his Deed and such Devises are good But if the Fee-simple of land be devised to one the remainder cannot be devised to another albeit the first Devise be but conditionall And therefore if land be devised to I S and his heires and if he dye without heires that it shall remaine to I N and his heires this is a void remainder to I N. So if a man devise his land to I S in Fee ita quod solvat I N 20l. and if he faile that it shall remaine to I N and his heires this remainder to I N is void for if I S faile of payment I N shall not enter and have the land but the heire of the Devisor And yet perhaps a rent may be devised after this manner Howbeit if another man have a Rent-charge of 20l. a yeare issuing out of my land for Dyer â—39 â—4 20. yeares and he devise this unto me untill I have levied 100l by way of retainer the remainder to I S this remainder is not good 4. A Devise may be of lands goods or chattels simply and absolutely or conditionally the simple Devise also may be in praesenti Condition Pâ—â—w 〈◊〉 Peâ—k Sect. â—63 See 〈◊〉 〈◊〉 8. 95 or in futuro And therefore as a Devise to one and his heires in praesenti is good so a Devise to one and his heires after the death of I S is good If I devise land to I S and his heires on condition as so as or ita quod he pay 10l to W S or paying to W S 10l or ad solvendum 10l to I S the Devise in all these cases is a good conditionall Devise and if the condition be not performed or broken the estate is ended and the heire may take advantage of it And therefore if lands be so given to the heire the condition is idle because none can enter but him And if I devise that if I S pay my Executors 20l. that hee shall have White acre to him and his heires for ever or for life c. this is a good Devise and after the contingent shall take effect accordingly and in this case and such like the heire of the Devisor must keep the land untill the contingent doe happen In like manner as if it bee a chattell the Executor shall keep the thing untill the condition bee performed and after a condition broken hâ— shall take advantage of it 5. A Devise may be also with a limitation as in the cases before Limitation and as where one gives land to another and his heires so long as I S shall have heires of his body or where one doth devise his land to A his sonne and his heirs for ever paying to B his brother 20 l. when he shall come of age and then that he shall enter and have it to him and his heirs and if he die without heirs of his body the said B then living then that B and his heirs shall have it in the same manner And these and such like Devises are good 6. A man that is seised of land in Fee may devise that his Executors Coo. super Lit. 112. 11â— 236. shall sell it or may devise it to his Exâ—cutors to sell or Devise it to his Executors and that they shall sell it and these Devises are good 7. A Devise may be of a rent or of land reserving Dyer 348. 100. 8. 84. 85. Clause of Distresse a rent with clause of Distresse As if a man Devise land to I S paying 10 l. by the yeare to his wife and if it be unpaid â—arrantiae that she shall distraine for it this is a good Devise But a Warranty cannot be made by a Wilâ— And yet if a man devise land to Coo. super Litt. 38â— another for life or in Taile reserving a rent in this case the heires of the Devisor shall be bound to the Warranty in Law and the Devisee shall take advantage of it 8. A man may devise his land Plow 523. 540. Dyeâ— 357. Coo. 8. 94. 83 to one and devise a rent out of the same land to another and these Devises are good So a man may devise his land to one in Fee and after devise the same land to another for life or years and these are good Devises and may stand together So also if a man in the fore-part of his Will by generall words devise all his lands to one in Fee and in the latter part of his Will devise some speciall part of it to another in Fee these Devises are good and shall stand together as for example if one have a Farm and in the first part of his Will give this Farm to one and in the latter part of his Will give one Close a part of this Farm to another or a man devise all his land in B which is in the County of Glouâ— to A his daughter and the latter part of his Will deviseth all his land in the County of Glouâ— in the possession of I S to his sonne and part of the land in B. is in the possession of I S and in Gloucestershire these are good Devises and shall stand together * 38 Bliz. Co. B. Agreed divers times But otherwise it is when the generall clause doth come last as where one doth give his land to A his daughter and in the latter part of his Will doth give all his land in Hartfordshire in the possession of I S to W and the land given to A is in Hartfordshire and in the possession of I S in this case the Devises will not stand together for the first Devise is void and so also it is where both the Devises are particular as where first in a mans Will he doth give White Acre to A and his heirs and after in
those two parts at his pleasure and no more for the third part must discend to the heir and come to satisfie the Lord his duties and therefore the Devise of the whole land in this case is void for the third part He that hath any such land held by Knights Service in Capite and other lands held by Socage Tenure may devise two parts of the whole and no more or any rent c. out of it at his pleasure He that doth hold land of the King by Knights Service only and not in Capite or if a meane Lord by Knights Service and hath also other lands held by Socage Tenuâ—e may devise two parts in three of all the land held by Knights Service or any rent c. out of it and all his Socage land at his pleasure So that now by these Statutes a man that hath lands in Fee-simple may devise them in Fee-simple fee-Fee-taile for life or yeares absolutely or conditionall at his pleasure And therefore if one devise his land to one for life the remainder in Fee or fee-Fee-taile to another or devise his land to B the remainder to the next heir male of B and the heires males of the body of such heire male or the like these are good Devises But for the more full understanding of these things it it to be known in the next place 2. That this Statute doth not enable men to devise land that are See the Statute Coo. super Litt. 111. Perk. Sect. 544. Lut. Sect. 287. Dveâ— 210. old N B 89. Perk Sect. 500 539 540. 496 497 498. disabled by Law in respect of their persons or minds as Infants women Covert men de non sane memory or the like nor such as are disabled in respect either of the nature of their land as Copi-holders for Copi-hold-land is not devisable or of the estate they have in the land as Tenants in Taile or pur autervie or joynt-Ioynt-tenants for these can no more devise the land they doe so hold then they could before the Statute But such as are seised of land in Common or Coparcenery may devise their land as well as those that are sole sâ—ised And if two be joint-Ioint-tenants for life the Fee-simple to one of them he that hath the Fee-simple may devise his Fee-simple after the death of his companion Neither doth this Statute enable those that are seised of lands in Fee in the right of their houses and Churches to devise the same lands And therefore Bishops Deanes Pâ—rsons Vicars Masters of Hospitals or the like can no more devise the lands belonging to their Bishopricks c. then they could before the Statute but the lands they are seised of in their own right they may devise like other men 3. Heridiments that are not of any yearly value are some of them devisable 〈◊〉 10. 81. 〈◊〉 32. super 〈◊〉 111. and some not for if the King grant to one and his heirs bona catalla felonum fugitivorum vel ut lagatorum Fines and Amercements within such a Manner or Village in this case the owner can neither devise these things to another as part of the two parts nor leave them to discend for a third part And yet if one have a Mannor unto which a Leet Waife Estrayâ— or the like is appendant or appurtenant there by the Devise of the Mannor with the appurtenances these things may passe as incident to the Mannor But if a man have a Hundred with the goods of Felons Out-lawes Fines Amercements Retornabrevium and other such casuall Heriditaments within the same Hundred and these have been usually let to Farm for a rent in this case these things may be devised or left to discend for a third part 4. Such incertaine Franchises as before that are Heriditaments of no yearly value albeit Coo. 10. 8â— 82. super Litt. 111. Coo. 3. 35. 30. 34. they are not devisable yet may restâ—aine the devise of a mans lands and tenements and make it void for a third part if they be held in Capitâ— for if it is not requisite that the thing held by the Tenurâ— in Capite be deviseable and such things as may not bee left to discend to the Lord for a third part and to satisfie him his duties may notwithstanding be devisable or restraine the Devise of other lands and tenements and make it void for a third part And therefore a Reversion upon an estate taâ—le which is dry and fruitlesse if it be holden of the King by Knights Service in Capitâ— will hinder the Devise of the third part of a mans lands and tenements Also an estate taile of lands held in Capite may restraine the Devise of a third part of other lands And therefore if such lands be conveyed to one and the heirs of his body the remainder to another and he have other lands in Socage if he have any issue he can devise but two parts of his Socage land And where the Statute speaks of a remainder it is to be intended of such a remainder only as may draw Ward and marriage by the Common-Law and this is that remainder only that doth hinder a Devise And therefore if A be seised of lands in Socage Tenure and B be seised of lands in Fee held in Capite by Knights Service and B make a Lease for life or gift in Taile to C the remainder to A in Taile or in Fee in this case A during the estate for life or in Taile may devise all his Socage land notwithstanding this remainder But if a man make a Lease for life or yeares and after grant the reversion for life or in Taile the remainder in Fee and after the Grantee for life dyeth or Donee in Taile dyeth without issue in this case this remainder which now is in point of reversion will restraine the Devise of other lands and make it void for a third part 5. In all Coo. 10 81. 11 24. 3. â—0 34 35. supeâ— Lâ—â—t â—â—1 Dyer 158. cases where a man is restrained to devise any part of his lands held in Socage hâ— must have lands held in Capite at the same time and therefore the time of having of lands to devise and holding of other lands in Capite and disposing of the lands to be devised must concurre And therefore if a man be seised of an Acre of land in Fee held of the King in Chiefe by Knights Service and of other two Acres in Fee held in Socage and enfeoffee his younger sonne of the Acre held in Capite and of one of the other Acres or convey it to the use of his wife or for the paiment of his debts c. and after purchase land held in Socage in this case he may devise all the new purchased land held in Socage without restraint So if a man bee seised of lands held by Knights Service in Capite in possession reversion or remainder and of lands held in Socage and by his Will in writing doth devise all
another this cannot be a good Devise of the land but perhaps the Devisee may in a Court of equity compell him that hath received the money to assure and settle the land according to the Devise And if Plow 344. Fitz. Devise 7. one devise another mans land this Devise is void but if he after the Devise made purchase this land now is the Devise good If a man bargaine and sell land to me on condition to reenter if he pay Adiudged Powâ—ly Blakemans case me 10l and I covenant that I will not take the profits untill default of paiment and he make a Lease of 6 yeares of it to another and after breake the condition in this case I may devise this land and the devise will be good 14. A Seigniory Rent or the like Perk. Sect. 538. Litt. Sect. 585. 586. Dyer 253. 140. 5. 52. F. N. B. 121. Coo. super Litt. 111. 8. 83. 3. 33. thing is devisable as land is and will passe without the Attu nement Devise of Rent Coâ—â—mon Seignâ—ory or the like of the Tenant The like Law is of a reversion also And a man may devise a Rent de novo issuing out of land or a Rent issuing out of land that is in â—sse before And therefore if a man make a Lease for life or yeares rendring Rent the Lessor may devise this Rent So if if a Rent be granted to one and his heires the Grantee may devise this rent So a man that is seised of land in Fee may devise any rent out of it at his pleasure And therefore if a man that holdeth his land by Knights service in Cheiâ—e by his Will devise any Rent Common or other profit out of it this devise is good and that albeit the Rent or Profit doth amount to the value of the whole land as if one have 3 Acres of land worth 3s by the yeare and he devise 3s Rent out of it this is a good devise of the whole Rent but in this case the Rent shall issue out of two parts of the land and a third part shall be free and not charged with it but he may charge 2 parts in 3 parts of such land at his pleasure And so also it is if a man have lands holden by Knights service and not in Capite and other lands in Socage he may charge two parts of the Knights service land and all his Socage land at his pleasure And if a man have lands held in Socage and no lands held in Capite or by Knights service he may devise what rent he will out of it But a man cannot devise a Rent Common or any such like thing out of another mans land that is none of his owne nor out of that he hath nor And therefore if one devise 10l out of his Mannor of Dale when in truth he hath no such Mannor this Devise is void If a rent be granted to me for the life of I S it Oyeâ— 253. seemes I may not devise this rent but that the Terre-tenant shall Occupant hold it as an Occupant 15. Where a man is seised of a house in Fee and may devise the house it selfe there it seemes he may devise Devise of houses dooâ—es glasse wainscot c. Coo. 4. 63. Perk. Sect. 512. 518. Coo. 11. Rich. Liâ—ords case â—â—lw 88. the doores windowes wainscot or the like Incidents of the house And where a man may devise the land it selfe it seemes hee may devise the trees or grasse growing upon the land Quando licet â—d quod majus videtur licere id quod minus But where the land it selfe is not devisable there such things incident or annexed to or growing or being upon it are not devisable And therefore the tenant in taile for life or yeares of land may not devise the houses or windowes doores or wainscot of houses or trees or grasse being or growing thereupon but this devise is void 16. Where a man Perk. Sect. 500. Dyer Devise of a Vse hath a Use that is not executed by the Statute of Uses but remains at the Common-law he may devise it as he may any other thing And therefore if one be possessed of a Terme of yeares and grant it over to another to the use of the Grantor he may dispose this use See Vses by his Will for it is in the nature of a Chattell But if a man have such a Use in jointenancy he cannot devise it 17. All manner of Swinb part 3. Sect. 5. Perk. Sect 511. 525 goods and chattels reall and personall may be devised by Testament Devise of goods and chattels And therefore Leases for years of lands Grants for yeares of Rent Common or the like Wardships of the bodies and lands of heirs of Tenants by tenure in Capite and by Knights Service Cattell as oxen sheepe horses c. gold silver money plate houshold-stuffe as beds pots panns platters c. corne wooll and implements of husbandry may be devised by Will and not only those a man hath at the time of the Devise but those a man is to have or may have afterwards And therefore it is held a man may give his corne that shall grow in such a ground the next yeare after his death or the wooll or lambs his flock of sheep shall yeild the next yeare after his death and that these Devises are good but if in this case there shall be no such corn growing in that ground or any lambs or wooll arising out of his â—lock that yeare the Legacy is fruitlesse And yet if the Testator devise to I S 20 quarters of corne or 20 lambs and both will that the same shall be paid out of his corne that shall grow or out of his â—lock the next yeare and there be not so much corne or not so many lambs or not any at all growing or arising yet this is a good Devise and the things must be paid In like manner if a man give to I S a horse or a yoke of oxen in this case albeit the Testator have neither horse nor yoke of oxen yet the Devise is good and must be performed 18. Things in action as debts and the like albeit they be not grantable by deed in the life time of the party yet are 〈◊〉 of debts and things in action possibilities and incertainties they devisable by Will And therefore if the Testator doth by his Will give any debt due to him on an obligation or on a contract or the like this Devise is good And the thing devised may bee had thus the Testator may if he will make the Legatury Executor as to that debt or if he do not the Legatary may sue the Executor in the Spirituall Court or in some Court of equity and thereby compell the Executor either to recover it himself and so to pay it to the Legatary or to give the Legatary power to sue for and recover it himselfe in the Executors
through the posts or walls tables dormant furnaces of lead and brasse and fats in a brew and die house standing and fastned to the walls or standing in or fastned to the ground in the middle of the house though fastned to no wall a copper or lead fixed to the house the doores within and without that are hanging and serving to any part of the house shall not goe to the Executor or Administrator to be divided and sold from the house albeit the Executor or Administrator have a Lease for yeeres of the house and by that meanes hath the house also But if the glasse be from the windowes or there be wainscot loose or doores more then are used that are not hanging or the like these things shall go to the Executor or Administrator If I make a feoffment to I S of land on condition that if he Co 3. 5. 96. Fitz. Executor 8. pay me my heires or assignes or my heires executors or administrators a 100l such a day that the Feoffment shall be void and I dye before the time of paiment in this case if this money be paid at the day my Executor or Administrator and not my heire shall have it If one be seised in Fee of lands whereon there are trees growing and he make a Feoffment of the land to me excepting the trees Coo. 4. 63. 11. 48. and afterwards he doth sell me the trees for ever and after I dye in this case my Executor or Administrator shall not have these trees as they shall in case where the Feoffor doth grant them to me for yeares And if I be seised of land in Fee and I make a Lease for life or yeares of it excepting the trees and afterwards I dye in this case my Executor or Administrator shall not have these trees but they shall goe in both cases with the land If a Lease be made for life or yeares of land whereon a house is standing or timber is growing and the house is prostrate or the Coo. 4. 63. 11. 81. 84. timber is cut or fallen down by whomsoever or what means soever it be the materials of this house and this timber is now become a chattell and therefore if the Lease be without impeachment of waste it shall goe to the Lessee and after his death to his Executor or Administrator but if the Lease be otherwise it shall goe to the Lessor and after his death to his Executor or Administrator But if the timber be cut for reparations only or the Lessee will imploy the materials of the house to build it againe and the Lease do continue it may be so imployed and then the Executor or Administrator of the Lessor may not take it If one be seised in Fee-simple of ground whereon trees do grow and he sell me these trees for money and afterwards I dye before Coo. 11. 50. Perk. Sect. 58. they be cut in this case my Executor or Administrator shall have and may cut them If the Kings teâ—ant by Knights service in Capite be seised of a Mannor whereunto an Advowâ—on is appendant and the Church become Coo. super Litt. 388. void and the tenant dyeth his heire within age in this case the King and not the Executor or Administrator of the tenant shall have the Presentation And yet if in this case the land be held of a common person the executor or administrator and not the Gardian shall have it In all cases regularly where a man doth sowe land whereof and wherein he hath such an estate as may perhaps continue untill the Dyer 31â— Doct. St. 35. Perk. Sect. 59. corne be ripe if he that doth sowe it die before it be cut and severed his executor or administrator shall have it as if the husband sowe the land whereof he hath an estate in Fee-simple fee-Fee-taile for life or for a certain number of years in the right of his wife and dye ere it be ripe in this case the Executor or Administrator of the husband and not the wife shall have it And if one that holdeth land fot the life of I S sowe the land and I S die ere it be ripe and cut the Executor or Administrator of the tenant shall have this corn And if tenant in Tail or in Dower sowe the land they do so hold and dye ere it be cut the Executor or Administrator not the issue in tail nor the heir or him in reversion shall have it So if the husband make a Feossment in Fee to the use of himself for life and after of his wife c. and he sowe the land and after die his Executor or Administrator not his wife shall have the corn But if a Feoffment be made to the use of the husband and wife together in Fee or for life and the husband sowe the land in this case the wife not the Executor or Administrator of the husband shall have the corn So if Lessee for years certain sow the land a little before the end of his term and the term end before it be cut in this case he that is to have the land not the Executor or Administrator of the Lessee for years shall have the corn If there be Tenant for life the remainder in Fee of a Tenancy Coo. 2. 93. and the Lord grant his Seigniory for life and after he in remainder in Fee of the Tenancy dye his heir within age and after the Lord die and after the Tenant for life die in this case the heir and not the Executor or Administrator of the Lord shall have the Wardship If one be seised of land in Fee and make a Lease for years rendring Hill 7. Iac. B. R. per Câ—riam Rent at Michaelmas or within 10 daies after and the Lessor happen to die during the term after Michaelmas and before the 10 daies expired in this case the heire of the Lessor and not his Executor or Administrator shall have the last half years Rent due at Michaelmas If one grant a Rent in Fee and grant withall that if the Rent F. N. B. 120. â—itz Covenant 17. Dâ—er 24. be behind the Grantor shall forfeit 205. nomine poenae to the Grantee and his heirs and the Rent is behind and the Grantee die in this case his Executor or Administrator not his heir shall have this money that is forfeit already So if one make a Feoffment in Fee of land and the Feoffee doth covenant to do divers things to the Feoffor Et quoties defectus fuerit c. that he shall forfeit to him and his heirs 5l and the Feoffee doth fail and breake his covenant divers wayes and the Feoffor dieth in this case his Executor or Administrator not his heir shall have and recover all the forfeitures that are past If a Bishop Parson Vicar Master of Hospitall or any body politique be possessed of any goods or chattels in their owne right Coo. 4. 63. Perk. Sect. 58. Coo. super Litâ— 46.
marriage And that where one doth by word without Deed grant to his sonne and to his wife in tail land in consideration of their marriage that it was agreed by all the Iudges that the use did rise upon this agreement Howsoever it is most safe in these cases to do it by Deed and in writing for Dyer 296. Plow 22 seems to oppugne this And if a man make a Feoffment levy a Fine or suffer a Recovery to the Litt. Sect. 462. 463. Coo. 6. 17. use of his last Will or to the intent to perform his last Will or to the use of such person and persons and of such estate and estates as he shall limit by his last Will and then afterwards by his last Will declare the uses these are good uses and this is a good way of raising of uses So if a man devise his land by Will to I S and his heirs to the use of I D and his heirs it seems that the use will See the Stat. 27 H. 8. of Vses Fitz. Devise 22. rise to I D and his heirs by this means And if a man by a verball agreement in consideration of money or the like sell his land to another or agree and promise that the bargainee shaâ—l have it Dyer 229. for any time howsoever that hereby no use nor estate will arise if it be a Free-hold that is sold within the Statute because it is not by Deed indented c. yet it seems a good use will arise at the Common Law and that the Bargainee shall have relief in equity for his purchase The second thing whereunto respect must Coo. 1. 122. 127. 115. Plow 2 8. Dyer 8. 263. be had is to the persons trusted or to him to whom the conveyance Conscience is made for to every good use there must be a person â—eised Secondly in respect of the persons trusted and what persâ—ns may not be seised to the use of another but to their own use to use and he must be a person capable of such a Seisin And for this it must be known that any sole person that may make an estate to himself may make an estate to other uses Alâ—o a man may be seised of his own land to other uses as in the case of a covenant to stand seised to uses But the King or any body corporate Reâ—olved in Doctor Atâ—â—s case 44. Q. Co. B. alien born or pâ—râ—on attaint cannot be seised to other uses no more by an originall Feoffment to use then when they come by the land in use at the second hand in which case as hath beene shewed neither such Persons nor disseisors abators or intrudors or Lords of villains or by Escheates shall be seised to other uses but in all these cases the uses are void and the parties shal hold the land to their own uses or to the uses of the feoffors c. not to the use of Cestuy que use And a bargainee of land for valuabâ—e consideration Dyer 155. Litt. Broo. Sect. 10. cannot be seised of the land to any other use but his own * Coo. 1. 136 The third thing to be respected is the Cestuy que us for to every good Thirdly in respect of the persons for whom the trust is or the Cestuy que use use as there must be a person seised to use so there must be a person to whose use he is seised and he must be capable also And for Broo. Mortmaiâ—e 37. this it must be observed that any man that is capable of an estate directly and immediately to himselfe is capable of the same estate by way of use but if the use be limited to a Corporation there must be a licence had otherwise it will be an alienation in Mortmaine And if future uses upon Contingences be limited to such See before persons as are not in being these uses howsoever they are good at the Common-Law yet they are not good within the Statute neither doth the Statute execute them at all untill they come in 12 H. 7. 27. â—0 Ed. 〈◊〉 possession And if a Feoffment be made to I S and his heires to the use of the Parishioners of Dale this use is voyd for they are incapable by this name and it shall be to the use of the Feoffor The fourth thing to be regarded is the estate of him that doth Fourthly in respect â—f the estâ—te and pâ—ssession of him that doth create the use raise the use in the land whereof the use is raised for howsoever the Tenant in Fee-simple of land may create what uses he will in Fee for life or yeares upon it and such uses are good and the Tenant in taile or for life may perhaps grant their land for their own lives to the use of a third person a Hill 38. Eliz. Co. B. Curia Coo. 2. 52. Pasche 13. Ia Co. B. Seignior Sarversus Smith Yet if a Tenant in taile for good considerations covenant to stand seised to the use of himself for life and after of his eldest sonne in taile no use will rise by this Covenant So if Tenant in taile of an Advowson in grosse grant it by Deed to one and his heires to the use of himself for life and after to the use of another in â—ee this grant is void by the death of the Tenant in taile b Coo. 10. 96 And if such a Tenant in tail bargain and sell his land by Deed indented and inrolled hereby the bargainee hath an estate discendible to his heirs but determinable upon the death of the Tenant in taile c â— Yelvertonâ— case 37. Q. B. R. And if one covenant by Indenture to stand seised to the use of B of White Acre which he hath not then but he doth afterwards purchase it by this no use will rise And if one that hath but a term of yeares grant it to I S to the use of himself for life c this is no good use within the Statute but a Chancery trust only The fifth thing to be respected is the estate of him that doth take Dyer 369. by the conveyance out of which the uses are derived for howsoever Fiâ—â—ly in respect of the est te and possession of him that doth â—ke by the conveyance where a man doth grant in Fee-simple to another and his Coo. 2. 78. heires he may limit what uses he will upon this estate and if a man make an estate for life to another he may limit an use Coo. super Litt. 1â— thereupon yet if a man make a gift in tail to another he can limit no use thereupon And therefore if one grant his land to I S and the heirs of his body to the use of I S and his heirs in Fee this limitatiom of use is void and I S hath hereby an estate in Taile c Trin. 14. Ia. B. R. Adiudged Couper Franklins case And if a Feoffment be made
this sort are mad men lunatikes villaines Ideots men that have the Lethargy doting old persons that want discretion drunken men and men that are forced to it by threatning imprisonment or the like also such as are born blind may be conusors or conusees And by what names deafe and dumbe but a man that becomes so accidentally may be received and ought not to be refused Also persons attainted of felony or treason ought not to bee received to levy a fine but such persons being admitted to levy a fine the fine will be good against all Persons attaint persons but the King and the Lord of whom their lands whereof the Non sanâ— memoriae fine is levyed are held for their times but persons waived or outlawed in personall actions onely ought not to be refused a 17 E. 3. 52. Cromp. Jur. 37. 10. E. 4. 13. Also Infants Infants ought not to be received to levy a fine and y et if an Infant be admitted to levy a fine and he doe not avoid it by writ of error during his minority as he may if it be not a fine Sur Grant Render in taile or for life the fine will be good for ever against him and all others b Perk. Sect. 19. Dyer 220. et per Just Bridgmans opinion in private And if he die during his nonage before he hath avoided it it seemes his heire can never avoid it and yet upon this point the Judges of the Common Please have been divided on a solemn argument and of this Just Dod. in 17 Iac. made a Quere c 17 E. 3. 52. 30 E. 3. 5. 27 Ass pl. 53. Perk. Sect. 19 20. Co. 7. 8. Also women that have Women covert husbands ought not to be admitted alone without their husbands to levy fines and yet if such a woman alone levy a fine of her own land she hath in fee simple and her husband doe not avoid it as he may if he will by writ of Ertor entry or otherwise during her life or after her death during his own life if he be tenant by the Curtesie this is now a good fine and will bind her and her heires for ever except she be an Infant at the time of the fine levyed and her husband happen to die during her minority for then in that Case if it be not a fine Sur Grant Render to her in taile or for life she may avoid it during her minority but if the coverture continue untill her full age in that Case she cannot avoid it except her husband joyn with her in it but the husband and wife ought to be received together to levy any fine of her land If such persons as are civilly dead as Fryars Corporations West Symb. part 2. Sect. 9. Plow 538. 575. Co. 11. 78. 1. in Magdalen College case Monkes and the like be admitted to levy a fine the fine is void But such civill bodies as have absolute estate in their possessions as Maior and Commonalty Dean and Chapter Colleges and other Societies corporate may levy fines of the lands they hold in common even by the Common Law and such fines are good but Ecclesiasticall persons as Biships Deanes Masters of Hospitals Parsons Vicars Prebends and such like are by divers Statutes restrained to levy fines of their spirituall inheritances Any person that hath capacity to take by grant or may be a grantee by deed may take by fine and be a conusee therein as any person 3 H. 6. 42. 41 E. 3. 7. 50 E. 3. 9. 24 E. 3. 62. male or female of full age or under age whether it be a Feme Covert madde person lunatike Ideot any person in prison or beyond the Sea also any person attainted of felony or treason or outlawed in any personall action a Bastard Clark convict or Alien may be conusee in a fine and a fine levyed to such persons is good d 5 H. 7. 25. 19 H. 6. 25. Dyer 188. Also Corporations spirituall and temporall may be conusees in fines and fines levyed to them are good but before the ingrossing of such fines there goeth alwaies a writ to the Justices of the Common Pleas Quod permittant â—inem illum levari But such persons as are civilly dead as Fryers Monkes and the like cannot be conusees in a fine and therefore a fine levyed to such persons is void The names of Cognisors and Cognisees in fines must bee West Simb in his Tract of Fines certainly set downe and they must for the most part bee deseribed by their right names of Baptism and Surname whether they be King Princes Dâ—kes Marquesses Earles Vicounts Barons Lords or Knights which be names of dignity but some of these are sometimes described without their Surname as Georg ' Comes Salop. Iohannes Dux Lancastr or whether they be Esquires or Gentlemen which be names of worship and honour But these additions of names of dignity and honour given to such persons or any others as Bishops and the like are used in fines rather of curtesie then of necessity for they are not needfull in fines But in case where there bee two of one name it is safe to make some addition by way of distinction as Senior and Junior and the like If a woman living her first husband take a second husband and 7 H. 4. 22. with him and by his name knowledge a fine it seemes this is void because of this mistake but if a woman with her right husband by a wrong Christian name levy a fine she is concluded by it and cannot avoid it during her life c 1 Ass pl. 11. And yet if a fine be levyed to a man and his wife by a wrong name as to A. and Sybill his wife when her name is Isabell this is holden to be void f F. N. B. 97. a Litt. Broo. Sect. 344. But if a fine be levyed by a woman by the name of Margery when her name is Margaret or by the name of Agnes when her name is Anne it seemes this fine is a good fine The Persons or Judges before whom a fine is to be levyed are of West Simb ubi supra 2. In respect of the persons before whom it is acknowledged and the persons place before whom and where it is recorded And what persons may take conusance of fines or record them And where And how the duty of such persons therein two sorts for some are Judges onely at the time of the Cognisance and Certifieate thereof and others are Judges to whom the Cognisance is to be certifyed and before whom it is to be recorded The first sort are such as have power to take such cognisance either ex officio and by virtue of their offices or by some commission generall or speciall granted unto them by the King out of Chancery g Stat. 15. E 2. Stat. de Carlil as all or any two of the Justices
the husband alone doth discontinue the whole land by fine feoffement or bargaine and sale by deed indented and inrolled and the writ of entrie is brought against the discontinuee and he doth vouch the husband alone without the wife and the husband doth vouch the common vouchee and so a recovery is had this is a good recovery for the whole land and a barre to all the estates in tail and remainder and reversion but not to the estate of the wife for her life after the husbands death But if lands be given to the husband and wife and the heires of their two bodies with remainders over to strangers and the husband alone discontinue and the recovery is suffered as in the last case it seemes this is no barre to the estates in taile or remainder or reversion for any part of the land And yet if lands be given to I S and I D in taile and I S discontinue the whole and the writ of entry is brought against the discontinuee and he vouch I S alone this is a good recovery for the one halfe of the land and a barre to all the estates And if lands be given Husband and wife as before to husband and wife and the heires of their two bodies and the writ of entry is brought against them both and they vouch the common vouchee or the husband alone doth discontinue and the writ is brought against the discontinuee and he vouch the husband and wife both and they enter into the warranty and vouch the common vouchee and so the recoverie is had these are good recoveries for the whole and a barre to all the estates in taile and to the estate of the woman and to all other estates And where Lit. Bro. 37. lands are given to a man and his wife and the heires of the body of the wife or to the wife and the heires of her body and the writ of entry is brought against the husband and wife and they vouch the common vouchee these are good recoveries and will barre the husbands and wives and the estates in taile remainder and reversion And where a man hath land in which his wife hath a Jointure Plow 514. or to which shee will have title of dower after his death if the writ of entry in this case be brought against them both they vouch the common vouchee and so a recovery is had this recovery will barre them both But the husband alone without her cannot barre her of any such estate by a recovery for she may falsifie and avoid it after his death And if lands be given to husband and wife and the Co. 3. 5. 1. 12 Ed. 4. 14. heires of the body of the husband and the writ of entry is brought against the husband alone and he vouch the common vouchee and so a recovery is had with a single voucher this is no good recovery for any part of the land nor barre to any of the estates albeit the husband doe survive the wife And yet if lands be given to two Co. 3. 6. others and the heires of the body of one of them the remainder over to to a stranger and the writ of entry is brought against one of them and he vouch the common vouchee and so a recovery is had this is a good recovery and a barre to all the estates for the one halfe of the land If lands be given to A in taile the remainder to B in taile the remainder to C in taile the remainder to D in fee and A doth make a feoffement in fee and the writ of entry is brought against the feoffee and he doth vouch B being him in the second remainder in taile to warranty and he doth vouch the common vouchee this is a good recovery and a barre to the second estate taile and all the remainders and reversion depending thereupon And yet it is no barre of the first estate taile which A Curâ—a Mich. 18 Jac. B. R. So was it held by most of the Judges in the case betweene Pell Browne hath If the writ of entry be brought against a Mortgagee and he doth vouch the common vouchee and so a recovery is had this is no good recovery to barre or bind the Mortgagor but that he may enter upon the condition broken So if one give lands to B and his heires so long as C shall have heires of his body and B doth suffer a common recovery and vouch the common vouchee this is no good recovery to barre the donor of the possibility for in both these cases he that is to be barred hath no remainder or reversion but an interest or possibility which cannot receive a recompence in value But if in these cases the mortgagee vouch to warranty the mortgagor or B the donee vouch the donor and so they vouch over the common vouchee and so the recovery is had these will be good recoveries to barre both them and their heirs for ever And if one have an estate in fee simple determinable on a Limitation or a Condition as if lands be given to A and his heires untill B pay to him 100 l. and then that it shall remaine to B and his heires and A in this case doth suffer a common recovery and vouch the common vouchee it seemes this is no barre to B and his heires but that upon payment of the 100 l. he shall have the land So if one by his will devise his land thus I give unto A my sonne and his heires for ever my land in W paying 20 l. to B when A shall come to 21 years of age and then that A and his heirs shall have it for ever and if A shall dye without heires of his body C being then living that then C shall have it to him and his heires for ever and A pay the 20 l. to B at his full age and then suffer a recovery of the land this is no barre to C of his estate But here it muâ—t be Co. 3. 5. noted that in the cases before where it is said that a recovery is void it is meant as to the heires and them in reversion and remainder for as to the parties themselves that doe suffer the recovery the same is for the most part good and doth bind them by way of Estoppell and conclusion And it must be noted also that a stranger that hath right to the land at the time of the recovery suffered is not barred at all by the recovery or by his lachess of non-claime c. as in the case of a fine The recoverors in common recoveries their heirs and assignes Stat. 7 H. 8. cap. 4. Dier 31. Co. super Lit. 104. 6. The remedy of Recoverors against the Lessees for Rents and services and upon wast done shall have the like remedy against lessees for lives and years of the land recovered their Executors or Assignes by distresse avowry or action of debt for the rents and
Bipartite i. of two parts when there are two parties and two parts of the deed And then commonly the feoffor grantor or lessor hath the one part and the feoffee grantee or lessee the other part And sometimes it is Tripartite i. when there are three partâ—es and three parts and then commonly each party hath a part of the Indenture And sometimes it is Quadripartite c. And according to the parts they doe seale interchangeably one to another And amongst these parts the part sealed by the feoffor grantor or lessor is said to be the principall or originall and the rest are called but Accessary Counterparts or Copies and yet all of them Counterpart in law doe make up but one entire deed These deeds also are sometimes Lit. Sect. 371. 372. times in the first person as Noveritis c. me A B c. dedi concessi c. And albeit it be an indenture so made yet is it good enough And sometimes they are made in the third person as Haec Indentura testatur c. quodidem A B c. dedit concessiâ— c. * Bro. Oblig 51. Co. super Lit. 35. 36. West Symb. â—ib 1. part 1. Sect. 46. The deed Poll is usually made in the first person but if it be made in the third person it is good enough There are divers other distinctions of deeds for some are Publique that doe concerne Countries some of the Prince And some are Private between particular persons and those private persons or Subjects And these only are intended here And of these some are Absolute and some Conditionall some are inrolled and some not inrolled some concern the realty and some the personalty And some are mixt And some of these also containe matter of Grant or Gift amongst which feoffements gifts bargaines and sale grants and leases are the chiefe And some of them containe matter of discharge as releases acquitances and defeasances and such like And some of them containe other matter as confirmations and such like Or as other distinguish some of them are Constitutive and making and some are remissory or liberatory And the first â—ort are some of them creating i. such whereby any estate property or obligation not having essence before is newly raised and created as the first grant of a rent Common way c. estate taile for life years c. And some of them are conveying i. such by which estates properties and the like being already created are conveyed to others as feoffements bargaines and sales grants over or assignements surrenders and the like Those that are of the last sort are such as doe describe and testifie some precedent contract for a duty or fact to be paid performed or done released or discharged of which sort are all acquitances releases and other such like matters of discharge But hereby the way two things are to be observed 1. That Note See West Sym. 〈◊〉 part there may be and are divers other kinde of deeds besides those which are named before for every agreement put in writing sealed and delivered becommeth a deed And Atturnements Exchanges Surrenders Partitioners Authorities Commissions Licences Revocations and the like are usually made given done and granted by deed And there are divers other Instruments concerning Merchants and other affaires if therefore any of these be done by deed such a deed is for the most part subject to the rules of deeds herein laid downe 2 Albeit that feoffements gifts bargaines leases Atturnements Exchanges Surrenders and such like things may in divers cases be as well made and done without as with a deed yet if a man will make his claime to any thing given or granted by such feoffement gift c. by deed the deed must be such a deed as is a good and perfect deed by the rules hereâ—â— after laid down In every deed or writing there are two parts considerable Co. super Lit. 6. 229. 2. 3. 3. The parts of a deed 1. The externall or materiall part i. The parchment or paper waxe and writing 2. The internall or intellectuall part i. the sense force virtue and operation of the words and matter therein contained And in the writing context or matter contained in divers deeds as feoffements grants leases and the like there are certaine formall or orderly parts which make up the whole of which the law doth take speciall notice as 1. The Premisses the office whereof is rightly to set downe the name of the feoffor grantor lessor c. feoffee grantee lessee c. and to comprehend the certainty of the thing granted or leased And herein in some deeds there is also a recitall of some things and in some deeds an Exception of some part of the thing granted before by the deed 2. The Habendum the office whereof is to name againe the feoffee lessee c. and to set forth what estate he shall have and for what time he shall hold the thing given or granted 3. There is set downe and expressed upon what termes and conditions the estate of the thing granted shall be held and therefore there is sometimes contained therein a Tenendum to set forth by what Tenure the grantee shall hold the land granted 2. A Reservation or Reddendum to set forth by what Rent he shall hold the land 3. A Condition 4. A Warranty 5. Covenants 6. The Conclusion after this manner In cujus rei testimonium c. wherein is set forth the date of the deed containing the day moneth and yeare and the stile of the King or yeare of our Lord. And all these are sometimes contained under the Premisses and the Habendum All the parts of a deed indented in Judgement of Law doe Plow 134. 38 H. 6. 24 25. Lit. Sect. 370. 9 H. 6. 35. 35 H. 6. 34. make up but one deed and every part is of as great force as all 4. The nature of â—â—deed indented and a deed poll with the difference that is between them the parts together and they are esteemed the mutuall deeds of either party and either party may be bound by either part of the same And the words of the Indenture are the words of either party And albeit they be spoken as the words of the one party only yet they are not his words alone but may be applyed to the other party if they doe more properly belong to him for every word that is doubtfull shall be applied and expounded to be spoken by him to whom they will best agree according to the intent of the parties and they shall not be taken more strongly against one or beneficially for the other as the words of a deed Poll shall * 11 H. 7. 22. per Brian If therefore A by indenture enfeoffe B upon condition and then doth enter for the condition broken in this case it hath been held that A in his pleading may shew forth the deed that he himselfe sealed and that this is
in reversion If two Jointenants bee in fee of an acre of land Perk. Sect. 80. and they lease it to a stranger for life and the lessee grant his estate to one of the lessors in this case it seemes it shall enure for a moity by way of grant and for the other moity by way of Surrender If there bee Lord and tenant and the Lord grant his Seigniory to his tenant and to a stranger this shall enure Perk. Sect. 81 Dier 140. for a Moitie to the tenant by way of Extinguishment and for the other moitie to the stranger by way of grant If tenant Perk. Sect. 82 83. for life of the grant of a woman sole grant his estate to the husband of the wife this shall enure for the whole by way of grant If a lease be made for life the remainder for life to a stranger and the lessee grant his estate to his lessor this shall enure by way of grant If there be Lord and two Joint tenants in fee and the Lord grant his Seigniory to one of his tenants in fee it seemes this shall take effect for the whole by way of extinguishment If there be lessee for life and the reversion descend to two coparceners and one of them take a husband and the lessee grant his estate to the husband and wife this shall enure by way of grant for the whole If the disseisee and the heire of the disseisor being in by Co. super Lit. 372. Co. 7. 14. 1. 147 148. 5. 〈◊〉 4. 2. descent make a feoffement by one deed and livery of seisin thereupon this is the feoffement of the heire only and the confirmation of the disseisee 6. If one have divers estates in land and he make any charge or grant upon or out of it this shall issue out of all his estates And if one have a possession and an ancient right and grant a rent charge out of the land or make a lease of the land this shall issue out of both the estates and it shall enure from him Perk. Sect. 592. having severall estates as it shall enure from severall persons having the same estates Quando duo jura concurrant in una persona â—quum est ac si essent in diversis 7. If one that hath a rent charge out of a manor by grant reciting his grant grant the same rent to a lessee for life of the manor out of which the rent doth issue to have and perceive to him and his heires and surrender to him the deed this shall not enure to extinguish the rent but by way of grant of which the heire of the lessee for life may take advantage if he doe not by granting away the rent purchasing the reversion of the manor or making a feoffement of the manor and thereby Co. super Lit. 302. committing a forfeiture or by some such like meanes prejudice himselfe for by these meanes the rent will be extinct and determined If a disseisor grant a rent to the disseisee and he by his deed doth grant it over to another or the dissâ—isor make a lease for life or gift in taile the remainder to the disseisee and the disseisee doth Perk. Sect. 69. grant over this remainder and the tenant atturne these grants of the disseisee shall be taken for a grant and a confirmation also ne res pereat If there be Lord and tenant of white acre and two other acres and the Lord grant by deed to his tenant that he will not distraine his tenant in white acre for his service this grant shall not enure to determine the Seigniory in any part but as a Mich. 37 38 Eliz. B. R. Curia covenant so that if he doe distraine in white acre the tenant may have an action of covenant If a man have a wood of 200. acres and he grant it to another for life or years and that he shall cut therein 4. or 5. acres every yeare in this case albeit the wood be granted and the grant shall enure to passe it yet the grantee can cut no more but 4. or 5. acres by the yeare And yet the grantor as this case is can not himselfe cut any of the wood during the time as in case where a man doth grant to another that he shall cut every year 4. or 5. acres in such a wood for in this case the grantor may notwithstanding cut as much as he will And here note that in all the cases before according to the construction that the law makes of the deed so must the party that is to use it set it forth and plead it as when it shall enure as a lease then it must be pleaded as a lease c. See more in Release Numb 9. Surrender Numb 7. Confirmation Numb 7. In the construction of deeds it must be observed that there are 14. How a deed of grant shall be construed and taken in all the parts and branches thereof Generall Rules some generall rules that are appliable to all the parts of all kinds of deeds and some that are appliable only to some kind of deeds and to some part of the deed only In the construction therefore Co. super Lit. 313. Lit. Sect. 563. Plow 160. 154. of all parts of all kinds of deeds these rules are universally observed 1. That the construction be favourable and as neere to the mindes and apparent intents of the parties as possibly it may be and law will permit for Benigne sunt faciendae interpretationes cartarum propter simplicitatem laicorum Et verba intentioni non è contra debent inservire as if there be Lord and tenant and the tenant grant the tenements to one man for terme of his life the remainder to another in fee and the Lord grant the Services to the tenant for life in fee in this case howbeit a grant may enure by way of release and a release to the tenant for life shall enure to him in remainder and is an extinguishment yet because this is contrary to the intent it shall be taken for a suspension only of the Doct. Stud. 39. Lit. cap. 1. services during the life of the tenant for life and the services shall goe afterwards to his heire But if the intent of the parties be apparently against law then the construction shall not apply the deed to their intent as if one give land to another and his heires for 20. years in this case the executor and not the heire shall have this land after the death of him to whom it is given So if one by deed intending to give land to another and his heires give the land to him To have and to hold to him or to him and his assignes Plow 161. 16 H. 8. 10. Dier 15. Fitz. Barre 237. Bro. Don. 14. 17 E. 3. 7. 46 E. 3. â—7 for ever without these words and his heires this is but an estate for life at the most 2. That the
the grant shall be taken strictly 6. When a man doth grant all his lands or all his goods by this grant doth passe not only what he is sole seised or possessed of but also what he is joyntly seised or possessed of with another And so è converso If two men joyn together and grant all their lands or all their goods hereby doe passe not only all they have joyntly and together Co. super Lit. 301. Lit. Sect. 543 544. but all those they have sole and a part 7. Some words in deeds are large and have a generall extent and some have a proper and particular application the former sort may containe the latter as Dedi or Concessi may amount to a grant a feoffment a gift a lease a release a conâ—irmation a surrender and it is in the election of the party to whom the deed is made to use it to which of these purposes he will And hence it is that if a Lord by the words of dedi concessi grant to his tenant that doth hold of him his rent or one that hath a rent charge out of land doth grant it to the tenant of the land that in these cases the rent is extinguished albeit it be by way of grant But a release surrender confirmation c. cannot amount to a grant c. nor a surrender to a confirmation or a release c. because these be proper and peculiar manner of conveyances and are destinated to a speciall end Co. super Lit. 5. 6. Co. 4. 88. Amongst words whereby things doe passe some are collective The terms whereby things are granted expounded compound or generall comprehending many things as hereditaments lands tenements honors Isles villages and the like including lands of severall sorts and qualities And some words are simple or particular as Meadow Pasture Wood Moore and the like The word Hereditament is of as large extent as any word for Hereditament Co. super Lit. 6. 16. Perk. Sect. 114 115. 11 H. 6. 22. whatsoever may be inherited be it corporeall or incorporeall reall personall or mixt is an hereditament By the grant therefore of all hereditaments doe passe Honors Isles Castles Seigniories Manors Mesuages Lands Meadowes Pastures Woods Moores Marishes Furses Heaths Reversions Commons Rents Vicarages Advowsons in grosse and the like things which the grantor hath in feesimple at the time of the grant whether he hath it by purchase or descent And the word Tenement is of large extent also and it seemes Tenement doth comprehend as much as the former And therefore by the Bro Grant 143 Co. super Lit. 6. Perk. Sect. 114. grant of all Tenements will passe as much as by the grant of all Hereditaments The word Land strictly doth signiâ—ie nothing but errable land Land Co. super Lit. 4. Co. 4. 891. Perk. Sect. 114. but in a larger sense it doth comprehend any ground soile or earth whatsoever And therefore by the grant of all Lands doth passe errable lands meadowes pastures woods moores waters marishes furses heath and such like and the castles houses and buildings thereupon but not rents advowsons and such like things Also by grant of any land in possession the reversion thereof will Co. 11. 47. 50. 10. 107. passe And yet by the grant of a reversion of land the land in possession will not passe But here it must be observed that in cases of grants and gifts of Note Edw. case Mich. 9. Jac. curia 9 H. 7. 25. Bro. Grant 87. 11 H. 6. 22. all hereditaments tenements or lands consideration is had of the estate of the grantor for if a man be seised of some lands in fee and have other lands for life or years only and all these are lying within one parish and he grant all his lands tenements or hereditaments in this parish to another in fee simple fee taile or for life Forfeiture and give livery of seisin in the lands whereof he is seised in fee in the name of all the rest by this doth passe no more but his lands whereof he is seised in fee for otherwise it would be a forfeiture for those lands But if the livery of seisin be made in any part of the lands he hath for life or yeares then that part wherein the livery is made will passe and no more And if the conveyance be by bargain and sale and deed inrolled then the lands whereof he is seised in fee simple and for life shall passe and not the land he hath for a terme of years And yet if in this case the grant be for years then all the lands will passe for then there will be no forfeiture in the case Howbeit it is said in Bro. Done 41. pro lege That if a man give or Forfeiture grant all his lands and tenemâ—nts in B that by this leases for years doe not passe and that these words doe intend franktenements at the least These words Honor Isle and Commote are compound words Co. super Lit. 5. Honor. Isle Commote Castle and of large extent And therefore by the grant of them may passe one or more seigniories manors and divers other lands Also a Castle may containe one or more manors And therefore by the grant of a Castle may passe one or more manors And so sometimes è converso a Castle may passe by the grant of a manor But by a Castle most commonly is signified no more but the house or building Plow 169. and the parcell of ground inclosed wherein it doth stand This word Village or Towne is of large extent also And by Co. super Lit. 5. Plo. 168. Town or Village the grant of it a manor land meadow and pasture and divers such like things may passe This word Manor is a word of large extent and may comprehend Manor Co. super Lit 5. 58. Perk. Sect. 116. Co. 5. 11. Plow 168. Dyer 233. 14 H. 8. 1. 9. Iac. B. R. Dyer 30. 8 H. 7. 4. many things And therefore by the grant of a manor without the words of Cum pertinentiis doe passe demesnesse rents and services lands meadowes pastures woods commons advowsons appendant villaines regardant Courts Baron and perquisites thereof that are in truth at the time of the grant parcell of the manor a Baintons case M. 9. But nothing that in truth is not parcell of the manor albeit it bee so reputed will passe by the grant of the manor and therefore if one have a manor and after purchase the lawday or a warren to it and then he grant away the manor hereby the lawday or warren will not passe And yet if by union time out of mind they have gotten a reputation of appendancy perhaps by the grant of the manor cum pertinentiis these things may passe b Co. super Lit. 5. 26. Ass Plo. 54. 2 E. 3. 36. By the grant of a manor also divers Towns may passe An Honour
how long this shall be taken to be an exception during the estate The Habendum as all other parts of a deed for the most part shall be taken most strongly against the grantor and most in advantage of the grantee yet so as withall it shall be construed as neer the intent of the parties as may be as in al the cases following doth appear In the Habendum or limitation of the estate and how that shall be taken If land be given or granted to one habendum or to have and to hold to him and his heirs so long as he pay 20 yearly to I S and Plow 557. his heires or so long as such a tree doth stand or the like this is a kind of seesimple but it is limited and qualified and determinable upon this contingent And yet this may become a pure feesimple Feesimple for if land be granted to one and his heirs untill I S pay 100l and I S die before he pay it in this case the estate is become a pure fee-simple If lands be given or granted to a man to have and to hold to him and his heires this is a feesimple pure absolute and perpetuall Co. super Lit. 8 9. Lit. 1. 27 H. 8. 5. Perk. Sect. 239. 240 241. 39 H. 6. 38. Plow 28. Bro. Estates 4. 11 H. 7. 12. Co. super Lit. 15. and this is made by these words his heires for it is a generall rule that these words his heires only make an estate in fee-simple in all feoffments and grants But this rule hath many exceptions for if feoffment of land be made to I S heredibus without the word Suis this is a feesimple And yet if the grant be to I S and I D heredibus without this word Suis contrà for this is only an estate for their lives And if lands be given to a Bishop Parson or the like To have and to hold to him and his successors this is a feesimple And lands be given to a Maior and Communalty or other Corporation aggregate generally without the word Successors or any other word or if lands be given to such a Corporation for their lives this is a feesimple But if land be given to a Parson or the like To have and to hold to him without saying how long or to have and to hold to him for life by this he hath no more but an estate for life a Co. 6. 27. super Lit. 9. And if lands be given to the King generally without any other words this is a feesimple b 15 Ed. 4. 13. 9 H. 7. 11 12 H. 8 9. H. 4. 84. 33 H. 6. 20. Co. super Lit. 9. Ass Pl. 12. Plow 130. 14 H. 4. 13. So if one grant deo ecclesiae de D it is said this is a feesimple in the Parson of D. So also of a grant Ecclesiae de D. per Thirne Iust So if a grant had beene to the Monkes of such a house it had beene a fee-simple in the house And in like manner it is in other cases c As if one recite that B hath enfeoffed him of white acre To have and to hold to him and his heires and then he saith further that as fully as B hath given white acre to him and his heirs he doth grant the same to C by this C the grantee hath the feesimple of this acre And if one grant 2. acres to A and B To have and to hold the one to A his heires the other to B in forma predicta by this B hath a feesimple in this other acre for an estate in fee simple fee taile or for life may be made by such words of reference Also if a rent be granted betweene Parceners for to make an equalitie of partition and it bee granted generally and without any words of heires yet this is a feesimple So where lands are given in Frankalmoigne And so also it is in the cases of a release of right a fine and a recovery If one give or grant land to another To have and to hold to him 27 H. 8. 27. Lit. Sect. 31. Co. 11. 46. and his heires males or to him and his heires females in both these cases there is a feesimple made but otherwise it is when these words are in a Will for then it is but an estate in taile only If one grant land to one To have and to hold to him his right 33 H. 6. 5. heires by this he hath a feesimple And so it shall be taken if it be by fine So if one grant land to I S for life the remainder to Co. super Lit. 22. Co. 1. 95. 66. the heires or to the right heires of I S this is a feesimple so if one make a feoffment in fee to the use of himselfe for life and after his death to the use of his heires this is a feesimple If one grant land to I S. To have and to hold to him and the heires of I S this is a feesimple and all one with a grant to I S and his heires If one grant land to another to have and to hold to him for 20. 20 H. 6. 35. Co. super Lit. 217. yeares and that after the 20. years the grantee shall have it to him and his heires by 10l rent and give livery of seisin by this the grantee shall have the feesimple If one grant land to the Wife of I S to have and to hold to her Co. 2. 91. Dyer 156. Co. super Lit. 22. for life and after to I S in taile and after to the right heires of I S by this I S hath a feesimple And if one grant land to A for life the remainder to B for life the remainder to the right heirs of A by this A hath a feesimple If land be granted to a man and his wife to have and to hold Bro. Estates 86. to them and the heires issuing of them it seemes this is a feesimple and not a feetaile If land bee granted to one and his heires by the premisses of a Co. 2. 21. 24. super Lit. 21. 21 H. 6 7. deed to have and to hold to him for life by this he hath a feesimple So if by the premisses of a deed land bee granted to one and the heires of his body to have and to hold to him and his heires by this he hath an estate taile and a fee simple expectant And so via versa If by the premisses of the deed the grant be to him and his heires to have and to hold to him and the heires of his body by this also he hath an estate taile and a feesimple expectant If lands be given or granted to a man to have and to hold to him Termes of Law tit tail Lit. tit Fee toto in Co. super Lit. 26. â—ee taile and to the or his heires of his body or the or his heires males of his
body or the or his heires females of his body by this the grantee hath an estate taile So if ands be given to a man to have and to hold to him and the heires males or to him and the heires females of his body begotten in both these cases it is an estate tail If lands be given to a man his his wife to have and to hold to them Lit. idem Co. 1. 140. Co. super Lit. 20. Co. 7. 41. and the heires males or to them and the heires females of their two bodies begotten by this they both have an estate taile And if lands be given to them the heires males or heires females of the body of the husband begotten on the wife by this he hath an estate taile his wife an estate for life only And if lands be given to A to have and to hold to him and his heires on the body of B begotten by this A hath an estate taile and B hath nothing So if lands be given to a man and his wife to have and to hold unto them and the heires he shall beget on her body by this they have an estate taile in them both If lands be given to a man and his wife and the heirs of the body of the husband by this the husband hath an estate in generall taile and the wife but an estate for life If lands be given to him to have and to hold to him and his heires he shall beget on the body of his wife by this he hath an estate taile and she no estate at all If one give his land to his daughter or Cousin in Frankmariage Lit. Sect. 17. by this they have each of them an estate taile without any word of heires or heires of body c. If one give lands to B and his heires to have and to hold to B Co. super Lit. 21. Co. 7. 41. 5 H. 5 6. and his heires if B have heires of his body and if he die without heires of his body that it shall revert to the donor by this B hath an estate taile So if one give lands to B and his heires if he have issue of his body by this he hath an estate taile So if lands be given to B to have and to hold to him and his heires provided that if he die without heire of his body that the land shall revert So if lands be given to A B uxori ejus hered eorum aliis hered ipsius A si dict'hered de dict' A B exeunt ' obierunt sine herede de se c. by this they have an estate taile And so in all such like cases where after a limitation of a feesimple these or such like words are added viz. that if he die without heires of his body the land shall revert for in all these cases the habendum is construed to be a limitation or declaration what heires are meant before If lands be given to A and B a young man and maid unmaried to have and to hold to them and the heires of their two bodies Co. super Lit. 26. Plow 135. by this each of them hath an estate taile and if they mary their heires may inherite it If lands bee given to the sonne to have and to hold to him and Co. super Lit. 7. Co. 8. 87. Ass Pl. 47. 5 Ass 14. his heires of the body of his Father by this the sonne hath a fee-simple But if the words bee to have and to hold to him and the heires of the body of the Father engendred by this it is an estate taile in a deed as it is in a Will And if the Father be dead the Law Will. is so also but it seems the sonne shall have by this only an estate for life except he be issue in taile to his father per formam doni So if there bee grandfather father and sonne and the father dieth and lands be given to the son to have and to hold to him and the heires of the body of the grandfather this is an estate taile in the sonne but neither the father nor the grandfather have either of them any estate in these cases If lands be given to I S and the heires of the 12 H. 4. 1. body of his wife being dead begotten by this I S hath an estate taile If one grant lands to I S to have and to hold to him and the Co. super Lit. 385. heires of his body issuing the remainder to I D and his heires in forma predicta by this I S and I D after him have each of them an estate taile If one grant lands to A to have and to hold to him for life the Co. 2. 91 super Lit. 22. 39. Ass Plow 20. remainder to the first sonne of A and the heires males of the body of that first sonne by this the first sonne hath an estate in taile and A his father but an estate for life only But if lands be granted to A for life the remainder to the heires of the body of A by this A hath an estate taile in him And if lands be given to a man and his wife to have and to hold to them and one heire of their bodies lawfully begotten and to one heire of the body of that heire by this there is an estate taile made yet so as it shall last only during the lives of those two heires If one grant lands to another to have and to hold to him and to Co. super Lit. 26. his heires of the body of such a woman lawfully begotten by this he shall have an estate taile for begotten shall be intended by the donee on that woman If there be husband and wife and they have issue a sonne and Co. super Lit. 26. daughter and lands are given to the wife to have and to hold to her and the heires of her late husband on her body begotten by this the wife hath an estate for life and the son an estate in taile and if he die without issue it shall goe to his daughter per formam doni If lands be granted to the husband of A and wife of B to have Co. super Lit. 20. and to hold to them and the heires of their two bodies by this they have each of them an estate in taile in them for there is a possibility that one husband and wife may dye and then the other husband and wife may intermary If there be father and sonne and lands are given to the father 12 H. 4. 3. Dyer 247. to have and to hold to him and the heires of the body of his son by this the sonne hath an estate taile but the father as it seemes but an estate for life If lands be given to the mother for life the remainder to her son Lit. Sect. 352. and the heires of the body of his father on her begotten the father being dead by this the son
hath an estate taile If lands be granted to I S to have and to hold to him and the 12 N. 4. heires he shall happen to have of his wife by this he hath but an estate taile and no feesimple and his wife hath no estate at all If lands be granted to I S and the heires that the said I S shall Co. super Lit. 20. lawfully beget of his first wife and he hath no wife at the time of the grant by this he hath an estate taile If A have issue by B his wife C a sonne D a daughter and A Co. super Lit. 26. die and lands are granted to B to have and to hold to her and to the heires of A her late husband on her body begotten in this case and by this deed C hath an estate taile the woman hath only an estate for life and if C die without issue D his Sister shall have the land per formam doni But if one grant lands to A late wife of I S to have and to hold to the said A and the heires of I S on the body of the said A begotten in this case the son and heire shall take no estate by the grant And the same construction shall be upon the same words in his Will Will. If lands be granted to the husband and wife to have and to hold Co. super Lit. 26. to them and the heires of the body of the surviver of them by this the survivor shall have an estate taile after the death of the other If lands be granted to I S to have and to hold to him heredibus Co. super Lit. 20. de carne sua or heredibus de se or heredibus quos sibicontigerit in all these cases I S hath an estate taile and no more If lands be granted to husband and wife to have and to hold to Co. super Lit. 28. him and the heires of the body of the husband the remainder to the husband and wife and the heires of their two bodies begotten this remainder is void and therefore by this the husband hath an estate in taile and the wife a joint estate for life with her husband and no more If lands bee granted to I S and his heires of the body of Co. 1. 140. Jane a Noke begotten by this I S hath an estate taile and no more If lands be granted to I S heredibus de corpore procreatis by this the heires that shall be begotten afterwards shall take And Co. super Lit. 20. if lands begranted to I S heredibus de corpore procreandis by this the heires of his body before begotten shall take per formam doni as well as those that shall be begotten afterwards If one grant to I S that if he and the heires of his body bee not Co. super Lit. 146. yearely paid 40. that hee or they shall distraine in the lands of the grantor by this the grantee hath an estate in taile in the rent as if he grant to I S that if he and his heires be not paid c. that he or they shall c. he hath a feesimple in the rent For life If one give or grant land to another to have and to hold to him Lit. Sect. 283. 285. Co. 8. 85. 96. 2. 24. Finches Law 60. Co. super Lit. 9. Dyer 307. Co. 7. 23. or to him and his assignes and say not how long nor for what time and the grantor make livery of seisin according to the deed by this the grantee hath an estate for his owne life But no livery of seisin be made no estate at all but an estate at will doth passe by this deed And if he that doth grant the land be but a lessee for years of the land and he make no livery of seisin upon the grant by this his terme of years and that estate which he hath is granted But if he make livery of seisin upon the grant then an estate for the life of the grantee will passe and it is a forfeiture of the estate of the lessee for Forfeiture 17 Ass Pl. 17. years of which he in reversion may take present advantage And if one grant to another Common in his land when he doth put in his owne beasts or Estovers in his Manor when he commeth there and say no more by this it seemes the grantee hath an estate for life If one grant land to I S to have and to hold to him or his heirs Co. 5. 112. super Lit. 8. in the disjunctive this is but an estate for life and no more So if one grant lands to I S to have and to hold to him and his heire in the singular number by this I S hath only an estate for life and no feesimple If one bargaine and sell land to another for money and limit no Co. 1. 87. 130. Plow 539. time and expresse no estate by this the bargaine shall have only an estate for life But otherwise it was before the Statute of Uses for then it had been a fee simple If lands be granted to I S for life and after to the next heire Co. 1. 66. male of I S and the heires males of the body of such next heire male by this I S hath but an estate for life But if it be to the next heires males of I S it is an intaile If one grant land to I S to have and to hold to him in fee 20 H. 6. 33. simple or in fee taile without saying to him and his heirs or to him and his heires males or the like this is but an estate for life and no more So if one grant land to I S to have and to hold to him and his feed or to him and his issues generally without more Co. super Lit. 8. 20. words by this is made only an estate for life But in the construction of a Will the law is otherwise in most of these cases Will. If lands be granted to two heredibus without this word Suis 20 H. 6. 35 by this they have an estate for their lives and no longer If one grant lands to I S to have and to hold to him and his Co. 5. 112. 1. 140. heires for his owne life or for the life of I D by this I S hath an estate for life and no more If one grant lands to A and B Habendum sibi suis omitting Co. 4. 29. super Lit. 1. 8. all other words or to have and to hold to them and their assignes by this they have an estate for life only So if lands be granted to any naturall person to have and to hold to him and his Successors by this he hath only an estate for his life If one grant his lands to I S to pay his debts to have and to Co. 8. 96. hold to him generally without limiting
rent out of the land generally without any limitation this shall be construed to enure for a grant of the rent so long as the estate of the grantor doth continue But if he grant a rent by expresse words for the life of the grantee by this the grantee shall have it for all the terme if he live so long If one grant lands to I S To have and to hold to him for life Co. super Lit. 218. reserving the first seven years a rose and if he will hold the land over that he shall pay a rent in money and no livery of seisin is made by this it seemes in certaine is made a lease for seven years untill the Condition be performed and then also it seemes it is a lease for no longer time And so perhaps it will be if livery of seisin be made If one grant a rent of 5 l. per annum unto I S To have and to Co. super Lit. 42. Plow 273. hold to him c. untill he shall receive 20 l. in this case he shall have a lease for foure years of this rent But if lands be granted to I S To have and to hold c. untill he shall receive 20 l. out of the profits of it in this case if livery of seisin be made the grantee hath an estate determinable upon the levying of the money and if no livery be made he hath no estate at all but at will If one make a lease for life and say that if the lessee within one Co. super Lit. 218. yeare pay not 20 s. that he shall have but a term for 2. years by this if he doth not pay the money he hath only a lease for 2. years albeit livery of seisin be made upon it If one make a lease to I S To have and to hold to him his executors Co. 9. 63. 60. c. for 10. years if I D shall live so long and I D is dead at the time when the lease is made in this case I S hath an absolute lease for 10. years If one grant lands to I S To have and to hold to him his executors Plow 273. Co. super Lit. 45. Dier 24. c. for 3. years and so from 3. years to 3. years during the life of I S or from 3. years to 3. years during the life of the lessee by this it seemes I S hath a lease for 6. years and no more And if one grant lands to I S To hold for 3. years and after the end of those 3. years for 3. other years and after the end of those 3. years for 3. other years during the life of the lessor by this it seemes I S hath a lease for 9. years and no more And yet if in these and such like cases where a lease is made from so many years to so many for the life of any person livery of seisin be made upon this deed secundum formam chartae this perhaps may be an estate for life If lands be granted To have and to hold from our Lady day pro termino unius Anni sic de uno Anno in unum Annum quamdiu 14 H. 8. 10. Co. 6. 35. 10. 106. ambabus partibus placuerit by this the grantee hath a lease for 3. years only in certain and afterwards a lease at will And if lands be granted to have and to hold from the Nativity of Christ next pro termino unius Anni et si in fine dict' unius Anni ambae partes placerent quod eadem presens dimissio foret renovata tunc habend premissa to the lessee c. ab post dictum festum Nativitatis Domini usque terminum trium Annorum extunc prox ' sequen ' by this the grantee hath a lease in certaine but for one year only and if the parties agree againe a lease for 3. years If one make a lease to I S To have and to hold to him for years Co. 6. 35. 21. H. 7. 38. and say not how many years by this the lessee hath a lease for 2. years and no more If one grant his land to I S To have and to hold to him untill Co. 3. 19. I D shall come to 21. years of age in this case if I D die before that time the lease is ended If a man possessed of a terme of years of land doth grant the land to another and his heirs this by construction will amoumt Co. 1. 44. 7 H. 4. 42. to a good grant of his interest If lands be granted to husband and wife and to I S To have Limitation of estates to divers persons Dier 263. and to hold to them and to the heires of the husband and I S by this the wife hath only an estate for life in a moity w th her husband and the husband and I S have the feesimple in Jointenancy to them and their heires Co. 8. 87. 10. 50. super Lit. â—5 Dier 145. If lands be granted to two brothers or two Sisters or to a brother or sister or to a father and sonne or any others To have and to hold to them and the heires of their bodies begotten by this they have joint estates for their lives so that the survivor of them will have the whole for his life and severall inheritances i. estates in generall taile by moities in common one with another And if lands be granted to two men and their wives and the heires of their bodies begotten in this case they have joint estates for life and afterwards the one husband and wife shall have the one moity and the other the other moity in common And and if lands be granted to a man and two women To have and to hold to them and the heires of their bodies by this they have each of them an estate taile in common with the other If lands be granted to husband and wife To have and to hold Lit. Sect. 27 28 29. Co. super Lit. 26. Dier 340. Co. 1. 100. to them and their heirs of their bodies issuing or in any such like manner by this the wife hath an estate taile as farre forth as the husband But if it be granted to them To have and to hold to them and the heires of the body of the husband or to the husband and wife and the heires of the husband which he shall have by his wife or in any such like manner by this the wife hath only an estate for life and the whole estate taile is in the husband So via versa if lands be granted to husband and wife and the heires of the wife upon her body begotten by the husband by this he hath an estate for his life only and his wife the whole estate taile And if lands be granted to the husband To have and to hold to him and the heires of his body on the body of his wife begotten or To have and to hold to him and
the heires of his body begotten on the wife he shall first mary or To have and to hold to him and his wife he shall first mary and the heirs of their bodies begotten in these cases the husbands have the whole estate and the wives nothing at all But Use otherwise it is it seemes when the estate is limited by way of use to a man and his wife that he shall afterwards mary for by this it seemes the wife shall take also If lands be granted to A a maried man and to S a maried wife 15 H. 7. 10. and to the heirs of their bodies engendred by this they have each of them an estate taile presently executed and whiles the wife of the husband and the husband of the wife live they shall hold it for their lives and if they happen to die and these to intermary and have issues their issues shall have it according to the intaile If lands be granted to A and B To have and to hold to A for Dier 126. 56. When the Habendum shall be said to be repugnant and void And when not but shall controll divide or expound the premisses life the remainder to B in fee by this A shall have the whole for his life and B the feesimple afterwards As touching this matter these differences are to be taken Co. 2. 23. 8. 56. Perk. Sect. 181. 14 H 8. 14. Co. super Lit. 183. Between things that are granted and between the estates When the things that are granted are such as lye in grant and take effect by the delivery of the deed only without any ceremony or take effect by the same ceremonie and when not but another ceremony is required to the perfection of the grant and estate And when there is an expresse estate made by the deed in the Premisses thereof and when but an implied estate only as for examples If one grant land rent common or any such like thing to one and his heires by the Premisses of the deed To have and to hold to him for life or To have and to hold to him and to his assignes without more words in this case the Habendum is repugnant and void and by this the grantee shall have an estate in feesimple if livery of seisin and atturnment as the case doth require be duly made for otherwise no estate at all but at will will passe So if a man grant a rent or any such like thing that lieth in grant to one and his heires To have and to hold to him for years this is a void Habendum and the grantee shall have the feesimple But if a man grant land to another and his heires To have and to hold to him for a certaine number of years in this case whether he make livery of seisin or not it is a good Habendum and by this the grantee shall have an estate for so many years and no more So if one grant land rent common or any such like thing to one in the Premisses of the deed without limitation of estate which in judgement of law is an implied estate for life To have and to hold to him for a certain number of years or at will this Habendum is good and shall stand with the Premisses and qualifie it and by this the grantee shall have but a lease for years or at will as the Habendum is And if one grant land by the Premisses Co. 8. 154. 21 H. 6. 7. Co. super Lit. 20. Dier 126. per curiam in Thurmans case Pasc 16 Jac. B. R. 21 H. 6. 7. of a deed to one and his heires of his body To have and to hold to him and his heires this Habendum shall stand and this shall be taken an estate taile and a feesimple expectant So vice versa If land be granted to one and his heires To have and to hold to him and his heirs of his body this shall be construed an estate taile and a feesimple expectant and so both shall stand together If lands be given to B and his heirs To have and to hold to B and his heires and if he die without heires of his body that it shall Co. super Lit. 21. revert to the donor it seemes this is a feetaile only and no feesimple expectant Voluntas donatoris in carta doni sui manifeste expressa observanda est If a lease for years be made of land and then the lessor by the premisses of the deed granteth the land to another To have and to Co. 10. 107. 108. hold the reversion of the land to him c. for life this Habendum shall stand So if by the Premisses of the deed the reversion be granted To have and to hold the land it selfe this is good and both shall stand together but nothing is granted in either case but the reversion If the next Advowson of a Church be granted to three To have Dier 304. Co. 5. 19. to hold to them and either of them jointly and severally this is joint and the Habendum is void * Co. 2. 55. And yet if one grant land to two by the Premisses of the deed To have and to hold to one of them for Super Lit. 183. Dier 106. life the remainder to the other for life this is not repugnant but shall stand together and make the estates severall and in remainder one after another So if a lease be made to two To have and to hold the one moity to the one and the other moity to the other by this they have severall estates Expressum facit semper cessare tacitum If a man have a lease for years of land and he reciting this by Dier 272. Plow 520. the Premisses of the deed doth grant all his estate in the land To have and to hold the land or the terme after his death or for part of the time only in this case the Habendum is void and the whole estate doth passe immediatly by the premisses If a tenant for life surrender a moity of his land and the lessor Dier 256. grant it all to a stranger To have and to hold the one moity for life and the other moity for 40. years after the death of the tenant for life this Habendum shall stand and enure according to the grant If a man seised of land in fee make a lease for life of it to one Curia pas 7 Jac. Co. B. and after grant the reversion of it to another To have and to hold the reversion and the tenements aforesaid cum post mortem forisfact ' c. vacare acciderit in this case the Habendum and premisses may stand together It is usuall in the Habendum of a deed to set down to what use the party to whom the deed is made shal have the thing granted But touching this and the matters that doe concern uses see Vse infra at large And see also more for the Exposition of Deeds
recovery as in the case of Alienation in Mortmaine In the case of exchange also there is a condition in law for which see Exchange It is a generall rule That when a man hath a thing he may condition 21 H. 7. 24. Perk. Sect. 707 708. c. 3. What things may be made and done upon Condition And to what things a Condition may be annâ—xed Or not And how it may be made and annexed thereunto with it as he will Conditions in deed therefore may be annexed to things inheritable to frank tenements or to chattells reall and personall as for example If a feoffement in fee gift in taile or lease for life be made of lands or tenements or a grant be of a rent Common or the like thing in feesimple feetaile or for life these things may be done upon condition So a lease for years of land or a grant of a rent c. for years may be made upon condition And a lease may be made for five years on condition that if the lessee pay to the lessor within the first two years 10. markes that then he shall have the fee otherwise but for five years Also a Gardian in â—hivalry may grant the wardship of the body and land or either of them on condition A tenant by statute Marchant Perk. Sect. 281. Co. super Lit. 274. Perk. Sect. 724. Co. 8. 98. Dier 242. Staple or Elegit may grant their estates upon condition The Lord may grant his Seigniory to his tenant on condition The tenant for life may grant his estate to his lessor or him in reversion upon condition The King may make letters Patents of denization to an alien or a â—harter of pardon to a man for his life upon condition Also releases and confirmations may be made upon condition And a submission to an award may be upon a condition But an Institution to a Benefice or an induction may not be Co. 2. 74. on a condition An atturnement or an expresse Manumission of Co. super Lit. 274. a villaine cannot be upon a condition subsequent as it may be upon a condition precedent And a condition cannot be released upon a condition as some hold But the contrary is held by others cleerly and that there is no difference between this and a release of a right Ideo quere An award cannot be made on a condition as was held in Sherers case 35 Eliz. A contract or sale of a Chattell Perk. Sect. 712 713. personall as an oxe or the like may be upon condition as if A sell his horse to B that if A doe such an act then that B shall pay 5 l. at the day agreed upon otherwise but 4 li. So if I agree with a Physitian that if he cure such a disease he shall have so much and in this case he cannot have the money untill he have done the cure As where I promise a man 10 l. when he hath built such a house in this case he cannot have the money untill the house be built Also retaining of servants delivery of Charters and divers other things may be done upon condition And if an Executor assent Co. 4. 28. to a legacy upon a condition the assent is good but the condition is void And conditions annexed to estates in all the cases before Lit. Sect. 365. Co. super Lit. 161. 216. howsoever they are most frequently and safely made by deed in writing yet it seemes such conditions may be made and annexed to any estate of a thing grantable without deed without any writing Doct. Stâ— 16. Perk. Sect. 715. at all howsoever in some cases it cannot be well pleaded nor used without a deed for it is a rule That if a condition be pleaded in any action to deâ—eat a freehold the deed wherein the condition is contained must bee shewed But of chattels reall as leases for years and the like or grants of chattels personall a man may plead that such leases and grants were made upon condition without shewing the deed And in the first case also of a condition to avoid a freehold it may be given in evidence to a Jury and they may finde the matter at large as it is and so the party may have advantage of the condition without shewing any deed of it Also the Co. 5. 40. pleading of a feoffment in fee on condition without deed and re-entry is good if the party confesse the condition A condition may Co. 8. 90. be annexed to a limitation of uses and thereby the same may be made void See Vse The nature of an expresse condition annexed to an estate in generall Co. super Litt. 186. Perk. Sect. 818. Litt. Sect. 358. Dier 6. is this That it cannot be made by nor reserved to a stranger 4. The nature of a condition in deed and of a limitation but it must be made by and reserved to him that doth make the estate And it cannot bee granted over to another except it be to and with the land or thing unto which it is annexed and incident And so it is not grantable in all cases for the estates of both the parties are so suspended by the condition that neither of them alone can well make any estate or charge of or upon the land for the party that doth depart with the estate and hath nothing but a possibility to have the thing again upon the performance or breach of the condition cannot grant or charge the thing at all And Dier 298. Co. 8. 44. Perk. Sect. 818 819. if he that hath the estate grant or charge it it will be subject to the condition still for the condition doth always attend and waite upon the estate or thing whereunto it is annexed so that although the same doe passe through the hands of an hundred men yet is it subject to the condition still And albeit some of them be persons priviledged in divers cases as the King infants and women covert yet they also are bound by the condition And a man that comes to the thing by wrong as a disseisor of land whereof there is an estate upon condition in beeing shall hold the same subject to the condition also And when the condition is broken or performed Dier 117. Co. 10. in Mary Portingtons caâ—e Super Litt. 230. Litt. Sect. 374. Perk. Sect. 564. so 108. Litt. â—o 224. Dier 127. Co. super Litt. 224. c. the whole estate shall be deâ—eated So that if there be a lease for life made by deed and not by will the remainder over in fee on condition that the lessee for life shall pay ten pound to the lessor if the lessee pay not this ten pound the estate in remainder is avoided also Et sic è converso unlesse by speciall limitation it be otherwise provided as if A grant by â—ndenture land to B for life the remainder to C in fee rendring rent to A and his heires with condition that
use of B and his heires on condition that B shall pay to the feoffor twenty pound such a day this is a good condition So if one covenant to stand seised of lands to the use of B and his heirs on condition that if he pay him tenne pound the use shall be void or the like Also a condition may be Dier 1â—6 348. annexed to an estate created by Will as if one devise land to I S for his life Provided that he pay ten pound yearly to I D this is a good condition Whereof see in Testament A rent or any such like thing may be granted on condition that Co. 8. 17. 24 â—d 3. 29. if such a thing bee or bee not done the rent shall cease for a time and then revive again and this condition is good But in case of land it is otherwise for that cannot bee granted after this manner Also a condition to make an estate void for a part of the time is not good And therefore if a feoffment bee on condition that upon Co. 1. 86. Perk. Sect. 718. Co. 4. 121. Dier 6 such a contingent the feoffor shall enter and have the land for a time or the estate shall be void for a part of the time or make a lease for ten years provided that upon such a contingent it shall be void for five years these conditions are not good And yet if a feoffment bee made of two acres provided that upon such a contingent the estate shall bee void as to one acre onely this is a good condition A condition that a stranger or the heir of the feoffor shall doe Co. super Litt. 214. Doct. Stud. 94. 159. 100. Co. super Litt. 379. Co. 1. 84. Dier 33. 21 H. 7. 11. Dier 4. Co. 8. 95. an act is good as if a feoffment be made to I S on condition that I D shall pay to the feoffor ten pound at Easter next or if a feoffment be made on condition that if the heir of the feoffor pay twenty shillings to the feoffee that the feoffor and his heirs shall reenter But a condition to give a stranger a reentry is void so farre forth And therefore if an estate bee made upon condition that upon such a contingent a stranger shall enter or the estate shall cease and another shall have it howsoever this may be so drawne as it may be a good condition to give him his heirs c. that doth make the estate an entry yet it cannot be good to give the estate or the entry to the stranger So if a feoffment be made on condition that upon such a contingent the feoffor and a stranger shall enter this is not good to give an entry to the stranger but it is good to give the feoffor a reentry And yet by will a man may devise a terme after this manner If a man enfeoffe another upon condition that he and his heires Co. super Litt. 213. shall render to a stranger and his heires a yearely rent of twenty shillings c. and if hee faile of payment thereof that the feoffor shall reenter albeit this as a reservation of rent is meerely void and the condition that doth call it a rent is meerly mistaken yet the condition is good and ut res valeat the words shall be taken contrary to their proper sense If I enfeoffe I S of land on condition that if I D give to him ten Perk. Sect. 798. pound or goe to Rome before such a day c. that then the feoffee shall pay to me ten pound c. this is a good condition If a feoffment be made to one and his heirs on condition that if Co. super Litt. 207. the feoffee pay to the feoffor ten pound hee shall have the fee of land this is not a good condition But if he say further And if he fail to pay that the feoffor shall reenter this is good If a gift in tail be made to a man and the heirs of his body and Co. super Litt. 224. if he die without heirs of his body that then the donor and his heirs shall reenter this is a void condition for when the issues fail the estate is at an end Conditions that are so penned as they are insensible and altogether Muddy Gardners case Adjudge pasche 14. Jac. B. R. Co. 6. 41. incertain are void as if one make a lease on condition that if the rent be behinde to restrain and if there bee not sufficient the ground to enter into the premisses this condition is void for insensibility and the estate is absolute Et sic de similibus A condition to enlarge or encrease an estate may be good as if Co. 8. 75. Plow 477. 481. Litt. Sect. 350. Perk. Sect. 710. Plow 135. 10 Ass pl. 15. Perk. Sect. 745. 707. Plow 25. Litt. Sect. 707. 350. Plow 272 482 483. 4 H. 7. 4. See more in the Lord Staffords case Co. 8. 73. To enlarge an estate a gift be made in tail or a lease be made for life or years on condition that if such an act be done or not done the lessee shall have the land to him and his heirs as if one make a lease for life to one and if the lessor die without heir of his body then he doth grant the land to the lessee and his heirs for ever Or if land be granted to a man for 5 years on condition that if the grantee pay to the grantor within the two first years ten pound then that he shall have the â—eesimple otherwise that he shall have the land but for five years and livery of seisin be made according to the deed this is a good condition and by this upon the performance of the condition the feesimple will passe So if one grant land for five years rendring rent and that if the lessee will hold it over to him and his heirs that he shall pay twenty pound rent this is a good condition and if be pay the rent he shall have the feesimple So if a man make a lease for years and at the same time for the surety of the terme to the lessee makes a feoffment to him upon condition that if he be disturbed in his term he shall have the feesimple of the land and deliver both these deeds at one time and give livery of seisin accordingly this is a good condition So if a lease for life be made upon condition that if the lessor or his heirs pay to B or his heirs ten pound at a certain day that then the lessor may reenter and if he doe not pay it at that time and the lessee pay to the lessor or his heirs ten pound at a certain day after the former day that then the lessee shall have the land to him and his heirs for ever this is a good condition But in all cases where these kind of conditions are good to make the increased estate good there
stranger and he tender it and the stranger refuse it this is no good performance of the condition And if a feoffement be made on condition to reinfeoffe the feoffor and his wife in taile the remainder to W in fee and he tender it to the wife only and not to him in remainder this is no good performance of the condition And the same law for the most part is in conditions of obligations See more in Obligations at Numb 9. If a feoffement be made on condition that the feoffee shall not Co. super Lit. 222 Dier 45 46. 10. What act shall be a breach of a Condition in deed And when a condition in deed shall be said to be broken Or not infeoffe I S of the land and the feoffee doth make a feoffment to I S and I D this is a breach of the condition And so also it is if the feoffee make a feoffement to I D to the intent that he shall alien to I S. Quando aliquid prohibetur fieri directo prohibetur per obliquum And yet if the feoffee in the case before alien to I D and after he doth alien to I S this is no breach of the condition And if the condition be that the feoffee shall not infeoffe I S and he die Not to alien and his heire enfeoffe I S this is no breach of the condition If a lease for years be made on condition that the lessee shall not Dier 45. 65. assigne or alien the term or the land during his life without the licence of the lessor and the lessee doth give it by his will without licence this is a breach of the condition and forfeiture of the estate But if he make an executor of his will only this is no breach And if the condition be that the lessee shall not alien and he die and his executor alien this is no breach of the condition And if the condition Per 3. Justices B. R. 3 Jac. be that the lessee shall not alien but to his children and the lessee by will devise it to his executors it seemes this is a breach of the condition So if he devise that A his sonne shall have his term after his wife and doth make A his sonne his executor it seemes this is a breach of the condition But if he doe not make A his executor contra And in cases of devise albeit the executors doe not assent yet the condition is broken as in case where a reversion is granted on condition that the grantee shall not alien it and he doth alien it but no atturnement is to this grant yet it seemes this is a breach of the condition And if a lease for years be made on Dier 6. condition that the lessee or his assignes shall not alien and the lessee doth make his wife his Executrix and shee doth take another husband and he doth alien it it seemes this is a breach of the condition and a forfeiture of the estate But if a lease be made on condition that the lessee shall not alien without the licence of the lessor and after the lessor die and the lessee assigne or the lessee die and his executors or administrators assigne this is no breach of the condition in either of these cases So if a lease be made on condition that the lessee shall not alien the terme during his life and he makes an executor but doth not devise it to him this is no breach of the condition And if a lease be Dier 152. Co. 4. 120. made on condition that the lessee his executors or assignes shall not alien the terme to any persons without the licence of the lessor but to the wife or one of the children of the lessee and the lessee die and his executors alien to one of the children of the lessee and he alien to a stranger without licence this is no breach of the condition And if one make a lease of a house and Hil. 38. El. Marsh versus Curtis land on condition that the lessee shall not parcell out the land or any part of it from the house and the lessee doth grant all his terme in the house and part of the land and doth keepe the rest and after doth lease that part also this is a breach of the condition If a lease be made of a house on condition that the lessee shall Not to suffer a woman with child in the house Co. 8. 92. not suffer any woman great with child to harbour or lodge in the house six daies after notice given by the lessor and the lessee doe suffer any such person after notice given albeit the lessor consent to it yet the condition is broken But if the lessor doe nolens volens keep such a woman there against the mind of the lessee this is no breach of the condition If a lease be made on condition that if any wast be done Not to doe wast 12 H. 4 5. Bro. Condition 40. the lessor shall reenter in this case if the house fall by a tempest this is no breach of the condition for this is not wast but if it be uncovered by tempest and the tenant hath a convenient time to repair it and doth not but doth suffer the timber to perish for want of covering this is a breach of the condition and the lessor may enter and put out the lessee * Per. Dier and Walsh Justices Dier 281. And if a lease be made on condition that that lessee shall not doe wast and he suffer wast to be made in decay of the houses c. it seemes the condition is broken Sed quere If a lease be made on condition that if the lessee be minded Not to sell till the lessor refuse it to any other Dier 13. to sell his estate the lessor shall have the first offer thereof giving as much as another will give in this case if the lessee doth not give notice when he is minded to sell it he doth breake the condition but if when he is minded to sell he doth tell the lessor of his purpose and what he is offered for it and the lessor doth either say he will not have it or that he will not give so much for it or doth not accept it but doth delay c. and then the lessee doth sell it to another this is no breach of the condition neither is he bound to waite upon him in this case If a feoffement be made on condition that the feoffee shall Co. super Lit. 221 222. Co. 2. 58. Perk. Sect. 80. 803. Lit. Sect. 355. Co. super Lit. 206. make a feoffement in fee gift in taile lease for life or years To make an estate of the land to the feoffor or to a stranger by a day and before the day the feoffee doth disable himselfe to doe it either by making some estate of the same thing to some other person in taile
otherwise and yet his power may remain for the residue as in the case of a limitation but in the case of a condition he cannot doe so 8. Such grantees as shall have advantage by this Statute must be compleat grantees Co. 5. 113 114. Co. 8. 92. And therefore grantees of reversions by fine or deed must have atturnment ere they can take advantage of the condition And yet if a reversion be granted by fine to one that hath no atturnment and he grant it to another that hath an atturnment in this case the second grantee shall take advantage of the condition albeit the first grantee shall not And the lessee must have notice of the grant of the reversion ere he in reversion can take any advantage of a condition And therefore it is that if the lessor bargain and sell the land by deed indented and inrolled in which case there needs no atturnment or if the lessor make a feoffment of the land and so out the lessee and the lessee reenter which is an atturnment in law the grantee or feoffee in these cases cannot take advantage of any condition before he hath given notice to the lessee of this grant of the reversion 9. Such as come in meerly by act of law or paramount as the Lord of a Villain the Lord by Co. super Litt. 214. Pasche 7 Jac. Co. B. per 2 Justices escheat the Lord that doth enter for Mortmain or the like cannot take advantage of a condition within this Statute And hence it seems it is that if lessee for forty yeares make a lease for thirty seven years on condition and after surrender his estate to his lessor * Co. super Litt. 215. Dier 309. Curia in Leeks case Pasche 7 Jac. Co. B. Albeit the words of the Statute be generall yet grantees and assignces shall not take benefit of every forfeiture by force of a condition nor yet of all conditions but onely of such as are inherent i. such as are either incident to the reversion as for payment of rent or for the benefit of the State as for restraining of wast for causing of reparations making of fences skowring of ditches preserving of woods and the like And of conditions that are collaterall such grantees shall not take benefit And therefore if the condition be for payment of a sum of mony in grosse to restraine alienation for the delivery of corn wood or the like the grantee of the reversion of the land shall not have advantage of it by this Statute for these remain as they were before the Statute at the Common law 11. Such conditions as are on the part of the lessor it seems are not within this Statute And therefore if one Per Justice Bridgman make a lease for years on condition that if the lessor his heirs or assigns pay ten pound to the lessee at our Lady day the lease to bee void the lessor doth grant the reversion to a stranger before the day it seems the grantee shall not take advantage of this but the condition is gone If one make a lease for years rendring rent to him and his heirs Doct. St. 35. 13 H. 4. 17. on condition that if it be not paid within fourteen days that hee and his heirs shall reenter and the rent is behinde and the lessor doth demand it and then die in this case the heir may enter But if he die before demand the heire cannot make a demand and so take advantage of that breach of the condition which was in the time of his Ancestor If a man be possessed of land for twenty years in the right of his Perk. Sect. 834. wife and he make a lease of it for ten years rendring rent with condition of reentry for default of payment and after the husband die in this case the wife shall have the rent but it seems she shall not take advantage of the condition If a lease be made to I S on condition that if such a thing be Co. 1. 85. super Litt. 379. Dier 127. 117. or be not done that the land shall remain to I D or that I D shall enter in this case I D shall never take advantage of this condition either by the Common law or by this Statute Regularly where a man will take advantage of a condition if he 13. Where entry or claim is needfull to avoid an estate on condition And where a man may take advantage of a condition without entry or claim And where not Co. super Litt. 218. 237. may enter he must enter and when he cannot enter he must make a claim for an estate of freehold or inheritance will not cease without entry or claim And he that is to have advantage by the condition may wave his advantage if he will And untill such entrie or claim made the party that should enter can make no good estate of the thing to any other But herein a difference is to be observed in the penning of a condition and between a lease for yeares and a lease for life or a greater estate for if a lease for years be made on condition that upon such a contingent the estate shall cease or the lease shall be void in this case when the thing doth happen the lease is ipso facto void without entry or claim But otherwise it is of a lease for life albeit there be the same words in the condition And if one make a lease for years on condition that if such a thing be done the lessor shall reenter in this case an entry is needfull to avoid the estate If one make a feoffment in fee gift in taile or lease for life on condition that upon such a contingent the estate shall be void in this case there must be an entry made after the condition is broken to avoid the estate So if one bargain and sell his land by deed indented and inrolled with proviso that if the bargainor pay c. then the estate shall cease and be void he doth pay the mony in this case the estate is not revested in the bargainor before an actuall reentry is made And so it is also if lands be devised to a man and his heirs on condition that if the devisee doe not pay twenty pound at a day his estate shall cease and be void in this case the estate is not void untill an actuall reentry be made And so also it is if a reversion remainder advowson rent common or the like be devised on such a condition in these cases there must be a claime before the estate will be determined And therefore if a man grant such a thing to another and his heirs on condition that if the grantor pay twenty pound on such a day the state of the grantee shall cease or be void and the grantor doth pay the mony according to the condition in this case the state is not revested in the grantor before a claim made at
2. Quotuplex And this is either expresse or in deed i. when the covenant is Termes of the law tit Covenant Co. 4. 80. 5. 17. F. N. B. 145. 146. Dier 338. 257. expressed in the deed As when A by deed doth covenant with B to serve him for a year and B doth covenant with A to pay him tenne pound for this service Or it is implied or in law i. when the deed doth not expresse it but the law doth make and supply it As when one doth make a lease for years by the words demise or grant without any expresse covenant for quiet enjoying in this case the law doth intend and make such a covenant on the part of the lessor which is that the lessee shall quietly hold and enjoy the thing demised against all persons at least having title under the lessor and at least during the lessors life and as some thinke during the whole terme And hereupon an action of covenant may be brought against him in the reversion so that if the heire that is in by descent put out the termor of his father the termor may have this action against him A covenant is also either reall i. that whereby a man doth bind himself to passe a reall thing as lands or tenements as a covenant to levy a fine of land in which case the land it self is to be recovered or when it doth run in the realty so with the land that he that hath the one hath or is subject to the other and so a warranty is called a reall covenant Or it is personall i. when it doth runne in the personalty and not with the land but some person in particular shall have benefit by it or be charged with it as when a man doth covenant to doe any personall thing as build or repair a house serve him or the like And these also are some of them said to be inherent i. such as are conversant about the land as that the thing demised shall be quietly enjoyed shall be kept in reparations shall not be aliened or if it be to be sold that the lessor shall have the first refusall to pay rent not to cut downe timber trees or doe wast to fence the copices when they be new cut to make further assurance or the like And some of them are said to be collaterall i. that are conversant about some collateral thing that doth nothing at all or not so immediatly concern the thing granted as to pay a summe of money in grosse to build a house in another mans ground to make a feoffment or lease of other land to give other security to perform the covenants or to pay the rent or that the lessor shall distrain for the rent in some other land then that which is demised or the like these are collaterall covenants There is also a covenant to stand seised of land to uses which is now become a kind of conveyance of land for which read Vses at large The most frequent use of a covenant is to binde a man to doe 3. The use and operation of it Co. 1. 154. Litt. Bro. Sect. 309. 17 H. 8. 16. Plow 308. F. N. B. 145. something in futuro and therefore it is for the most part executory and if the covenantor doe not perform it the covenantee may have thereupon for his relief an action or writ of covenant against the covenantor so often as there is any breach of the covenant And this writ of covenant is therefore defined to bee a A writ or action of covenant Quid. writ lying where a man is bound by a covenant in a deed and hath broken it And in this case commonly the party damnified shall recover damages only for the breach and if hee have a Judgement in an action brought for one breach and after the covenantor doth breake the covenant again in this case hee may bring a new action and so for every breach But a covenant doth somtimes Use also make a transmutation of a property and possession of things as in case of a covenant to stand seised of land to uses for which see Vse And in case where one doth covenant that another shall Lease have a peece of land for five years this is a good lease for five years for which see Lease And in case where one doth covenant with another that if he pay him ten pound such a day he shall have all his cattle in Dale or his lease for years hee hath of the Manor of Contract Dale in this case it seems if he pay the mony at the time hee shall have the property of the goods and of the lease for years It is said therefore that in some cases upon the writ of covenant the party shall recover the land it self out of which he hath been ejected A covenant may be in the affirmative or in the negative And it Plow 330. 27 H. 8. 16. 4. What shall bee said a good covenant in deed upon which an Action of covenant may be had And what not 1. In respect of the manner of making it may be executed i. that a thing is done already or executory i. that a thing shall be done hereafter and these are all good But if it be of a thing present as if I covenant that my horse is yours this is void a F. N. B. 145 G. Co. 3. 63. Ewers case 8 Jac. And these covenants being made by a deed poll are as good and effectuall as when they are made by a deed indented so as the party have the deed to shew for otherwise a common person cannot have an action of covenant for it doth not lie upon a verball agreement neither can it be grounded without a writing except it be by a speciall custome as in London b Litt. Bro. Sect. 450. Co. 2. Lord Cromwels case Dier 57. 150. 21 H. 7. 37. 40 E. 3. 5. And there needs not in this case formall and orderly words as Covenant Promise and the like to make a covenant on which to ground an action of covenant for a covenant may be had by any other words upon any part of an agreement in writing in what words soever it be set down for any thing to be or not to be done the party to or with whom the promise or agreement is made may have this action upon the breach of the agreement And therefore if these words be inserted in a deed amongst other covenants That the lessee shall repair provided always that the lessor shall allow timber Or that the lessor shall skowre ditches provided always that the lessor doe cary away the earth these are good covenants on both sides c Adjudge pasch 14 Jac. B. R. Sir Thomas Bret versus Cumberlands case And if a lease be made of houses by Patent to I S for twenty one years and therein is inserted this clause And that the said I S and his assignes shall repaire the houses when
yet it seems it doth not restrain the power that the lessee hath by the law to take these things without assignement But if the lessee doe covenant that he will not cut any timber or fuell without the leave or without the assignement of the lessor this is a good covenant and doth restrain him for in this and such like cases the rules is Modus conventio vincunt legem If an obligee covenant with the obligor that he will not sue him Mich. 36 37 Eliz. Co. B. Adjudge Deaux versus Jefferies 21 H. 7. 23. Release upon the obligation untill Easter following this is a good covenant but no release or suspension of the debt * Perk. Sect. 69. If there be Lord and tenant of three acres of land white acre and two others and the Lord grant to the tenant by deed that he will not distrain in white acre for his rent or services this is a good covenant but doth not determine the Seigniory If one man grant a mill within his Manor covenant for him Fitz. Covenant 5. his heirs that there shall be no other mill set up within the Manor it seems this is a good covenant If one make a lease wherein are divers covenants to bee performed Fitz. Covenant 3. on the part of the lessee and after the lessee doth covenant that if any of the covenants be broken that the lessor shall enter upon the land demised and hold it untill the lessee make him amends for the damage done by the breach of the covenant it seems this is a good covenant and that the lessor may take advantage thereof accordingly If a man seised of land in fee covenant to stand seised of it to uses Plow 307 308. 21 H. 7. 18. 27 H. 8. 16. Finchesley 49. and no estate doth rise by the covenant yet this may bee good by way of covenant and give remedy to the covenantee in an action of covenant But with this difference If the covenant be future as where one doth covenant with another that in consideration of a mariage his lands shall descend remain or revert to his sonne and heire apparent and to the heires of his body on the body of his wife in this case the covenantee may have a writ of Covenant upon the covenant For if a covenant be present as that a man and his heirs shall from henceforth stand and bee seised to such and such uses and the uses will not arise by the Law in the case in this case no action of covenant will lie upon this covenant for this action will never lie upon any covenant but upon such a covenant as is either to doe a thing hereafter or that a thing is or hath heretofore beene done and not when it is for a thing present as when A doth covenant with B that his blacke horse shall be for ever after the horse of B this is no good covenant to give the horse to B or to give him an action of covenant for him but A may keep him still notwithstanding If one mortgage upon condition to reenter upon payment of an Agree 8. Car. hundred pound at a day and the mortgagee doth covenant that he will not take the profits of the land untill default of payment this is a good covenant and the mortgagee therefore may not meddle with the profits untill the day of payment come If one make a lease for years of land by the words Demise or 5. What shall be said a good covenant in Law upon which an action of covenant may be had And what not Co. 4. 80. 5. 17. Trin. 3 Jac. B. R. Stiles case Pas 7 Jac. B. R. Winsecombes case Grant and there is not contained in the lease any expresse covenant for the quiet enjoying of the land in this case the Law doth supply a covenant for the quiet enjoying of it against the lessor and all that come in under him by title during the Term and upon this the lessee his executors administrators or assignes may have an action of covenant if he be disturbed But where there is an expresse covenant in the deed for the quiet enjoying of the land there the Law will not make this implied covenant Expressum facit cessare tacitum And therefore herein this is not like to the case Warranty where a man doth make a lease for life by the words of Dedi concessi or make a lease for life by other words reserving rent in which cases the law doth create a warranty against all men during the life of the lessor for if in these cases there be an expresse warranty in the deed yet this doth not take away nor qualifie the implied warranty but the Lessee may make use of which of them hee will if he bee ousted or evicted by one that hath an elder title A covenat in particular being one part of a deed is subject Plow 287. See in Exposition of Deeds before in toto 6. How a covenant in deed or law shall be taken and expounded And how it shall be performed to the generall rules of exposition of all parts of deeds in generall as to bee alwayes taken most strongly against the covenantor and most in advantage of the covenantee 2. To be taken according to the intent of the parties 3. Vt res magis valeat c. 4. When no time is limited for the doing of the thing it shall bee done in reasonable time and the like In cases where the covenantees have or are to have several interests Ioint and severall or estates there when the covenant is made to and with the Co. 5. 19. Dier 338. Bro. Covenant 49. covenantees cum quolibet eorum aut alterâ— eorum in this case these words make the covenant severall as if one by Indenture demise black acre to A and white acre to B and green acre to C and covenant with them and either of them or covenant with them and every of them that he is lawfull owner of all these acres in this case the covenant is severall but if he demise to them the three acres together and covenant in this manner the covenant is joint and not severall And if A and B doe covenant jointly and severally in this case the covenant may bee joint or severall and the covenantors may be sued either the one way or the other at the election of the covenantee If one make a lease of land to another and covenant that hee F. N. B. 145. 1. Dier 328. 26 H. 8. 3. For quiet enjoying shall quietly enjoy it without the let of any person whatsoever or without the let of any person whatsoever claiming by or under the lessor in both these cases the covenant shall be taken to extend Mich. 7 Jac. B. R. accord in Gambles case to such persons as have title or claime some estate under the lessor for if in the first case any person
that hath no title and in the second case any person that shall claim under another and hath title or that shall claim under the lessor claim or enter or otherwise disturbe the lessee this is held to bee no breach of the covenant Sed quere of the first case for herein some conceive a difference Co. 4. 80. Dier 328. Per Furner at Lent Assise Glouc. 23 Car. betweene a covenant in deed and a covenant in law and that howsoever the covenant in law is extended only to evictions by title yet that the covenant in deed shall be extended further And therefore that if A make a lease for years to B and doth covenant that B shall quietly enjoy it during the term without the interruption of any person or persons that if a stranger in this case that hath no right doth interrupt B that he may have an action of covenant as when such a promise is by word an action of the case will lie upon it And if the lessor covenant with his lessee that he hath not done Curia Jervis versus Peade Mich. 40. 41 El. B. R. Action of the case any act to prejudice the lease but that the lessee shall enjoy it against all persons in this case these words against all persons shall refer to the first and be limited and restrained to any acts done by him and no breach shall be allowed but in such an act Co. 5. 17. 22 H. 6. 52. Co. 4. 80. Dier 257. The covenant in law upon the words Demise or Grant also for the quiet enjoying of the thing demised is generall against all persons that have title during the Terme and extendeth to the heir after the death of the lessor as against himself onely and shall charge the Executors or Administrators for any disturbance in the Executors life of the covenantor but not for any disturbance afterwards he that doth sue therefore upon this covenant must shew that he was molested or evicted by one that had an elder title If one doth covenant to enter into bond for the quiet enjoying of Co. 5. 78. land and doth not say what bond in this case it shall be taken to be a bond of so much as the land to be enjoyed is worth A warranty in a lease for years shall be taken for a covenant for Fitz. Covenant 21. â—ee before 7 E. 4. 6. Bro. Grant 164. quiet enjoying If one covenant with another to acquit him of all charges issuing out of the land and after by Parliament the tenth part of the To free from incumbrances and charges value not of the issues of all lands are given to the King in this case it seems the covenant shall not extend to this But if the Parliament had given the tenth part exituuÌ„ terre the covenant would have extended to this as well as to rents commons and such like things wherewith the land is charged If A covenant with B to make such assurance or such further assurance Co. 5. 19. of land as the Counsel learned in the law of B shall advise To make assurances of land in this case albeit B be learned in the law himself yet he may not devise this assurance but some other learned in the law must advise otherwise A is not bound to make it And if A covenant with B to make such assurance of land by Co. 5. 19 20. Dier 361. per Just Bridgeman a day as B or his heirs shall devise in this case B or his heires must first devise the assurance before A is bound to doe any thing And therefore if one sell land for money and the vendee doth covenant to make back to the vendor and his heirs such assurance of the land as the Counsell of the vendor shall devise within one yeare provided that if the vendee make default in the assurance then if he doe not pay twenty pound to the vendor that then the vendee shall stand seised to the use of him and his heires and the vendor tender no assurance the twenty pound is not paid in this case the land is in the vendee freed from the covenant And therefore in these and such like cases where a man is to make such assurance as A or his heirs or their Counsel shall devise A or his heirs must take care that in time they have an assurance reasonably drawn and ready to be sealed and to tender it to him that is to seale it for untill then there can be no breach of covenant But if A bee bound to make a feoffement lease or other assurance of land to B by a day in this case B need not to demand it or tender the assurance for A at his perill must doe it otherwise he doth breake his covenant a Trin. 20 Jac. B. R. Steed versus Spike And yet if in this case B doe get the assurance drawn and tender it to A it seemes A is bound to seale it or otherwise hee doth breake his covenant * Co. 5. 20. 22. And if the case bee so that A is bound to make such assurance to B by a day at the costs of B in this case A must doe the first act viz. notifie to B what manner of assurance he will make that he may know what money to tender and when the money is tendred A must see that hee doe make the assurance accordingly at his perill and if he fail in either of these the covenant is broken If A be bound to make such assurance to B as by the Counsell Co. 5. 20. learned of B upon request made shall be devised in this case it is sufficient if the advise be given to B and that he do make it known to A and it is not needfull it be given to A immediately And if Dier 338. Co. 2. 3. A covenant with B to make such assurance to B as I S shall devise and I S doth devise a reasonable deed of bargain and sale and hee tender it to A to seal in this case A is bound to seal it presently and he shall not have time to advise with his Counsell upon the deed but if he be illiterate and cannot read the deed he may refuse and delay to seal it untill he can get some body to reade it which he must doe as soon as he can And if one bee bound by Experientia covenant to make an assurance upon request the covenantee must request and tender an assurance also and he must tender such a one also as is reasonable otherwise the covenant will not bee broken by the refusull or neglect to doe it as if one be bound to make a feoffment to A upon request in this case A must get a naked deed of feoffment drawn without warranty or covenants and tender it And if the covenant be to make such a lease as the former in this case the second lease must not differ from the former
bargaine and sell land by deed indented to B and before the That the covenant or is seised of a good estate c. deed is inrolled I grant the same land to C and covenant that I am seised of a good estate of it in fee and after the deed is inrolled in this case the covenant is broken If A let land to B and covenant that he shall quietly enjoy it Mich. 8 Jac. Lams case Dier 328. F. N. B. 145. 26 H. 8. 3. Hil. 39 Eliz. B. R. Cornes case Fitz. Covenant 26. Bro. Covenant 40. without the let of any person whatsoever and A himselfe or any For quiet enjoying other person that hath any title to the land by or under him as if he make a lease of it or granta rent out of it to another or any other person that hath any title to the land albeit it be not by or under A as if A were a disseisor and the disseisee doe enter or disturbe B in all these cases the covenant is broken And so also is the law deemed to be by some in case of covenant in deed for quiet enjoying where a stranger or one that hath no title to the land doth enter or disturbe B. But otherwise it is in case of covenant in law for quiet enjoying for in this case if a stranger that hath no title to the land doth enter or disturbe the lessee this is no breach of the covenant in law And in all cases where any person hath title the covenant is not broken untill some entry or other actuall disturbance be made by him upon his title If a man make a lease of land and after make a feoffement of 20 Jac. Bro. Covenant 7. the same land and the feoffee doth disturbe the lessee in this case it hath been said this is a breach of the covenant for quiet enjoying Sed quere If a man purchase land to him and his wife and his heires in fee Hil. 20 Jac. adjudg B. R. Butler versus Lady Swinerton and then make a lease for years of it to I S and covenant for him his executors and assignes that the lessee his executors and assignes shall quietly hold and enjoy the premisses without the let of the lessor his heires or assignes or any other person by or through his or their meanes title or procurement and after the lessor doth die and his wife doth enter and disturbe in this case and by this meanes the covenant is broken And so it is also if A purchase Swans case M. 7 8 El. land of B. To have and to hold to A for life the remainder to C the sonne of A in taile and after A doth make a lease of this land to D for years and doth covenant for the quiet enjoying as in the last case and then he dieth and then C doth out the lessee in this case this was held to be no breach of the covenant So likewise if A be seised of white acre in fee and take to wife B and Dier 42. 26 H. 8. 3. Fitz. Covenant 6. 26. then make a lease of it to C with such a covenant as before for the quiet enjoying and then A doth die and after B doth recover dower by this the covenant is broken and yet if the mother of A recover dower and out the lessee contra So also if a tenant in taile doth make a lease with such a covenant and his issue doth disturbe the lessee this is no breach of the covenant And yet if the lessor be the cause of the gift in taile or procure the disturbance this may be a breach of the covenant And so also it is where a man is seised of land in fee and he doth make a lease with such a covenant and afterwards he doth die and then his heire is in ward by reason of a tenure and hereby the lessee is disturbed it seemes this is no breach of this covenant If one covenant that the wife he is about to mary shall quietly Curia B. R. pase 6. Car. Crowles case enjoy all her goods and that the covenantee shall take it into his possession and the husband doth only take the goods and keepe them in his possession this is no breach of the covenant If a covenant be for the quiet enjoying against all persons but Adjudge Hil. 38 El. Woodroffe versus Greenwood Adjudge Mich 2. Car. B. R. SaÌ„ders case Dier 240. the King and his successors and the Patentee of the King doe disturbe this is a breach of this covenant If two make a lease and covenant that the lessee shall enjoy the land without the let of them or any other and one of them alone doth disturbe the lessee this is a breach of the covenant If a lessee grant and assigne all the land contained in his lease to A and doth covenant with him that he hath not done any act or thing by which the grant or assignment might be impaired but that the assignee his executors c. may enjoy it against all persons and before this time the wife of the lessor had recovered and had execution of a third part of this land for her dower in this case this is no breach of the covenant for the words but that c. doe referre to the former and are not absolute If A grant the Bailiwicke of W to B for life and B assigne it Adjudge Rich versus Row pasch â—3 Jac. Co. B. to C for three years and after to D and C doth covenant with D that he will not doe or suffer to be done any act during the said three years by which the grant made by A may be forfeit but that after the three years ended he may enjoy it in as ample manner as C did or might have done without any act by C and after the three years ended C doth execute a Proces there and thereby incroch upon the office this is no breach of the covenant If A grant land to B and his heires rendring tenne pound rent Curia Hil. 20 Jac. Co. B. Greenway Truckfalds case To free from charges and incumbrances and B doth sell the land to C and his heires and doth covenant with C that from such a day he shall enjoy it discharged of all incumbrances and before that day a Common Recovery is had against C in which A is vouched and this is to the use of C and his heires supposing hereby the rent had been gone which is not so in this case the covenant is broken for this rent is an incumbrance If a lease be made of land for years the lessee devise it to his Co. 10. 52. wife durante viduitate and after to his sonne and he in reversion doth sell the fee to the woman during the widowhood and doth covenant that the land is discharged of all former sales rights titles charges in this case the covenant is broken at the first by
for quiet enjoying Co. 4. 80. the implyed covenant is gone Expressum facit cessare tacitum By a release of all covenants from the covenantee the covenant 18 E. 4. 8. Release is discharged so as the release be by deed for a covenant by deed cannot be discharged by word And therefore if A by deed covenant with B to build a house by a day and B doth wish him to let it alone this is no discharge of the covenant If the lessor accept the rent of the lessee or his assignee after Pasc 6. Car. B. R. Adjudg Bachelors case a covenant broken this doth not discharge the breach of the covenant but the lessor may sue for it notwithstanding And so we come to a Warranty being a speciall kind of covenant and therefore next in order to be spoken to CHAP. VIII Of a Warranty A Warranty is a covenant reall annexed to lands or tenements Finch ley 39. Co. super Lit. 365. 1. Warranty Quid. whereby a man and his heires are bound to warrant the same Or it is where a man is bound to warrant the land or hereditament that another hath And he that doth make this warranty is called the warrantor and he to whom it is made Warrantor Warrantee the warrantee There are two kind of warranties 1. A warranty in deed 2. Quotuplex Co. 1. 2. super Lit. 365. 4. 81. or an expresse warranty which is when the same is expressed i. when a fine or feoffement by deed is levied or made in fee or a lease for life is made by deed comprehending warranty or which hath an expresse clause of warranty contained in it as when a conusor feoffor or lessor doth covenant to warrant the land to the conusee feoffee or lessee whch is in these words Ego I S heredes mei warrantizabimus imperpetuum defendemus W S heredibus suis tenementa predicta contra omnes homines imperpetuum And by the Statute of Bigamis Dedi is made an expresse warranty during the life of feoffor 2. A warranty in law or an implied warranty which is when it is not expressed by the party but tacite made and implied by the law whereof see divers Examples infra The warranty in deed also is either lineall which Co. super 383 384. 370. 365. is thus described A covenant reall annexed to the land by him which either was owner or might have inherited the land and from whom his heire lineall or collaterall might by possibility have claimed the land as heire from him that made the warranty Or else it is collaterall which is thus described A warranty made by him that had no right or possibility of right to the land and is collaterall to the title of the land Also there is a warranty which doth commence by disseisin or wrong of all which â—ee divers examples afterwards And note that all these things here are to be applied to warranties of lands and concerning freeholds and inheritances for there is a warranty of goods and cattells in contracts of which we treat not here The fruit and effect of this warranty in deed is that it doth alwaies Co. super Lit. 265. 372. 365. 384. Co. 4. 121. 10. 97. conclude and barre the warrantor himselfe of the land so 3. The fruit and effect of it and what use may be made of it warranted for ever so that all his present and future rights that he hath or may have therein are hereby extinct And therefore if the father be dissâ—ised and the sonne in his life time release all his right to the land to the disseisor and make a warranty of the land in the deed and then the father dieth and the right of the land descendeth to the sonne in this case albeit the release doth not barre the sonne yet the warranty doth barre him And for the most part also it doth conclude and barre the heires of him that made the warranty to whom the same warranty doth descend to demand the same land against the warranty for if it be a lineall warranty it is a barre of an estate in fee simple without any Assets i. without any other land descended to him in fee simple from the same Ancestor that made the warranty And with assets it is a barre of an estate in taile And if it be a collaterall warranty it is with or without assets a barre of an estate in fee simple or â—ee taile and all possibility of right thereunto and yet so as it doth not passe any estate or right but only bind the right so long as the warranty is in force for if the warranty be avoided the right may be revived But neither the lineall or collaterall warranty can enlarge an estate And therefore if a lessor by deed release to his lessee for Co. super Lit. 389. c. life and warrant the land to him and his heires this doth not make his estate greater neither will it barre titles of entry or action in cases of Mortmaine consent to a Ravishor mortgage or dower And therefore if an Ancestor of the Lord hath title to enter upon an Alienation in Mortmaine and he release or make a feoffement with warranty this warranty will neither barre him nor his heire So if a collaterall Ancestor will make a warranty which doth after descend upon one that hath title of entry upon a condition broken this will not barre his entry c. neither will it barre any right that shall commence after the warranty made And the warranty that doth commence by disseisin doth not bind or barre any estate with or without Assets And in cases where the lineall or collaterall warranty is a barre Co. super Lit. 265. Co. 10. 98 99. Dier 42. Co. super Lit. 101. there if the party be impleaded by him or his heires that made the warranty the party impleaded that is tenant of the land may plead and shew forth this warranty against him and de mand Judgement whether he contrary to his owne warranty shall be suffered or received to demand the thing warranted and this in pleading is called a Rebutter And if he be impleaded or â—ued by another for Rebutâ—er Quid. the land then he to whom the warranty is made or his heires may vouch i. call in the warrantor or his heires to warrant the land Voucher Quid. And this is an interpleader in the nature of an action brought by the warrantor against the warrantee wherein he that doth vouch called the voucher is demandant and he that is vouched called Voucher Vouchee the vouchee is made tenant or defendant to the action and the vouchor is as it were out of the suite And this second tenant the vouchee is called the tenant by the warranty And hereupon shall Tenant by the warranty Quid. Summons ad warrantizandum Quid. issue forth to the Sheriffe a writ to summon the vouchee to appeare called a
then the donee dieth without issue this warranty doth begin by disseisin So if the father and son and a third person be jointenants in fee and the father maketh a feoffment in fee of the whole with warranty and dieth and then the sonne doeth in this case as to the part of the third person and to the part of the sonne the warranty shall be said to beginne by disseisin But releases at this day by a tenant for life to a disseisor or any other without covin albeit it bee to the intent to barre him in reversion shall barre him for intent without covin and disseisin shall not avoid a warranty And examples of warranties that doe begin by disseisin have these qualities 1. That for the most part the disseisin is done immediately to the heire that is bound by the warranty 2. The warranty and disseisin are simul and semel And yet if a man disseise another with intent to make a feoffment with warranty albeit the feoffement be made twenty years after the disseisin yet it shall be said to bee a warranty that doth beginne by disseisin But in all these cases of warranties that doe beginne by disseisin this is the rule That they are altogether void and without force as to all others but to the parties themselves that doe make them and therefore they do not barre or binde any others at all of their right that have any And the same Law is of a warranty that doth begin by abatement or intrusion that is when an abatement or intrusion is made of purpose to make a feoffement in fee with warranty And so also it is where the tenant dieth without heir and an Auncestor of the Lord doth enter before the entry of the Lord and make a feoffement in fee with warranty in this case this shall not binde the Lord because it doth begin by wrong All warranties in generall are favourably taken in Law because 11. How a warranty shall be taken they are part of mens assurances Every warranty in Law is taken for and hath the effect of a lineall warranty The warrnaty that is made by Dedi Concessi or Dedi only in a Co. 4. 81. 5. 17. feoffement is and shall be taken for a generall warranty against all persons to the feoffee and his heires during the life of the feoffor onely albeit there be no service reserved by the deed nor heir named but it shall not extend to the assignee of the feoffee And if there be any service reserved on the deed then it shall extend against the heir also The warranty in Law that is made upon a gift in tail or lease for Co. 4. 81. super Litt. 384. life rendring rent is a speciall warranty against the donor and lessor and his heirs and assignes so that the donee or lessee may vouch the grantor after the grant of the reversion or the grantee of the reversion after the atturnment of the tenant at his election The warranty in Law that is made upon an Exchange is special in Co. 4. 121. super Litt. 384. divers respects for it extendeth reciprocally to and against the heires of both parties and it doth extend only to the same land that is given in exchange and none other and no use can be made of it but by voucher for no Warrantia Cartae doth lie upon it So also the warranty that is made in dower is taken to extend only to the other two parts of the land The warranty in Law that is made upon the tenure of Homage Co. super Litt. 384. Auncestrel extendeth reciprocally to the heires and against the heires of both parties If a feoffement be made of land to three jointly and the feoffors Co. 5. 59. doe warrant the land to the feoffees and every of them this warranty shall be joint and not severall But if the estate be severall as if one grant white acre to A and blacke acre to B and grant to warrant the land to them and either of them in this case the warranty shall be severall If a man of full age and an infant join in a feoffement with warranty Co. super Litt. 367. this shall be taken for a good warranty as to the whole for him that is of full age and void for the infant and not void in part and good in part Co. super Litt. 386. If a man make a feoffment in fee bind his heirs but not himself to warranty in this case and by this his heirs shall not be bound and Co. super Litt. 47. 385. Dier 42. Kelw. 108. Co. 6. 69. a man binde himselfe to warrant and not his heirs by the feoffement in this case the feoffor himselfe is bound to the warranty but not his heirs for it is a maxime of Law That the heir shall never be bound to any expresse warranty but where the Auncestour was bound by the same warranty If one make a feoffment to B and his heirs and thereby doth grant to warrant the land and doth not say to B and his heirs yet this warranty shall be taken to extend to them But if the feoffor doth grant to warrant the land to B and doth not say to his heires this shall not extend to his heirs And if in this case the warranty be to B and his assignes it shall not extend to his heirs neither shall the assignees take advantage of it after the death of B. And if the warranty be to B and his heirs and not to his assignes also this shall not extend to his assignes If one make a feoffment to A habendum to him and his heirs and binde himselfe and his heirs to warrant the land in forma praedicta in this case the warranty shall extend to the feoffee his heirs If one grant to warrant land to another and his heirs and doth Co. 1. 1. not say against what persons this shall be taken for a generall warranty against all men If one make an estate and grant to warrant the land but doth not say how long this shall bee taken for as long as the estate to which the warranty is knit doth last If a warranty be made against any speciall persons it shall extend Dier 328. to them and no further and it shall extend in all cases for and to all titles and entries upon title and it shall not in any such cases extend to tortious and unlawfull entries If a man bee seised of a rent-seck issuing out of the Manor of Co. super Litt. 366. Dale and hee take a wife and the husband doth release to the terre-tenant and warranteth tenementa praedicta and dieth this warranty shall extend to the rent as well as to the land and therefore if the wife sue for her thirds of the rent the terre-tenant may vouch the heire And regularly the warranty doth extend to all Co. super Litt. 388 389. things issuing out of the land viz. to
livery of seisin be made of the deed this livery perhaps may make the estate good Livery of seisin is needfull and must be had and made in all cases Co. 5. 92. Lit. Sect. 70. Co. 6. 26. Doct. Stud. 13. Co. super Lit. 49. 8. Where and in what cases it is requisite Or not where any estate of see simple fee taile or for a mans owne or another mans life is made or granted by writing or word in the country of any lands or tenements corporall And so also where one doth make a lease of land to another for years the remainder to a stranger in fee simple fee tail or for life in these cases livery of seisin must be had and made to the lessee for years or else nothing will passe to him in remainder and yet the lease for years will be good And so also where a lease for yeares is made upon condition Co. super Lit. 216. that if such a thing happen the lessee shall have the fee simple in this case the lessee must have livery of seisin before his entry otherwise the estate will not increase And so also if the King Plow 214. 2. 9. make a feoffment of the land he hath in the right of the Duchy of Lancaster that is not within the county Palatine in this case livery of seisin must be made as in the case of a Subject And in all these cases where livery of seisin is requisite and it is not made there doth passe no estate by the conveyance but an estate at will at the most But livery of seisin is not needfull or requisite to bee had and Co. 2. 23. Lit. Sect. 59. Co. super Lit. 49. made in cases where any estate of see simple fee taile or for life is made or granted of any lands by matter of record as by the Kings Letters Patents Fine Recovery Deed indented and inrolled and the like nor is it needfull where any such estate is created by way of covenant and raising of use by way of Exchange Indowment ad ostium Ecclesiae or ex Assensu patris nor is it needfull where any such estate is passed or granted by way of Surrender devise release or confirmation or by way of increase or executory grant as when the fee simple is granted to the lessee for life or yeares in possession neither is it requisite or can be made where any incorporeall hereditaments as reversions rents commons or the like are granted in fee simple fee taile or for life for in some of these cases there is an atturnement to be made that doth supply a livery Neither is it requisite in some cases where an estate of freehold is made of a corporall thing as if a house or land belong to an office and the office be granted by deed in this case the house or land doth passe as incident thereunto So if a house or chamber belong to a corody in this case by the grant of the corody the house or chamber passeth without any livery of seisin Neither is it requisite upon a lease for yeares for if a man make a lease for one thousand yeares this lease is perfect by the delivery of the deed without any livery of seisin Neither is it needfull where one doth grant to me and my heires all the trees growing Co. 8. 137 11. 49. on his ground for these will passe without any livery of seisin at all Livery of seisin may and must be made either by the party himselfe Perk. Sect. 184. Co. super Lit. 48 49. 52. that maketh the estate or if it be a livery in deed it may in his 9. How it may must be made And what shall be said a good livery of seisin Or not absence be made by his atturney sufficiently authorized by writing And he that may make an estate to the perfection whereof livery is requisite may himselfe and in his owne right make livery thereupon and in the right of another and as atturney to another so 1. In respect of the persons that make it to whom it is made and the quality of their estate Woman covert Infant divers that cannot make any estate may notwithstanding make livery of seisin And therefore the husband albeit he may not make a feoffment in fee or lease for life c. of land to his wife yet he may as an atturney make livery of seisin to her upon a conveyance made by another And so also may the wife upon a conveyance made to the husband or her And so also Monks Infants Aliens and such like persons disabled to make feoffments c. may notwithstanding make livery of seisin as atturneys upon conveyances made to others And so likewise may he in remainder in fee make livery to the lessee for years Et sic de similibus And this livery of Co. super Lit. 48. 49. seisin may and must be made to the party himselfe that taketh the estate or in his absence to his atturney or procurator sufficiently authorized and in this case any one may be an atturney to take that may be an atturney to give livery If a feoffment be made to Dier 35. Co. super Lit. 49. 359. Co. 5. 95. divers by deed and livery of seisin is made to one or some of them this is a good livery to execute the estate to them all But if a feoffment be made to divers without deed and livery of seisin is made to one or some of them in the name of all the rest in this case the feoffment is good to execute the estate in him or them to whom the livery is made and voidas to the rest If a lease for years be made Co. super Lit. 217. to A and B without deed the remainder to D in fee and livery of seisin is made to A or B in this case this is a good livery to make the remainder to passe to D. But if a lease be made for years to A the remainder to the right heires of I S in fee I S being then living and livery of seisin is given to A this remainder is void for nemo est heres vâ—veÌ„tis One Jointenant caÌ„not make livery of seisin Perk. 40. 10 E. 4. 3. to his companion as a tenant in common may And a lessor cannot make livery of seisin to his lessee for life or years See before Num. 4. In all cases where this ceremony is requisite whether it be done Co. super Lit. 52. 2. In respect of the time when it is made by the parties themselves in person or their deputies it must be done and made 1. in the life time of the feoffor donor or lessor and in the life time of the feoffee donee or lessee for if either of them die it cannot be done afterwards neither can a warrant of atturney be be made to deliver seisin after the death of the feoffor c. But if there be more
it is to be made houses lands meadowes pastures woods chambers or the like And these things therefore are said to lie in livery But of incorporall things as rents advowsons commons estovers and such like things livery cannot be made And these things therefore are said to lie in grant and not in livery And therefore when a livery is made of these nil operatur See more above Numb 4. To every good livery of seisin is requisite either such an act as the Co 9. 137. super Lit. 49. 6. In respect of the manner order of making it And how livery of seisin is to be made law doth adjudge to be a livery or apt words that doe amount unto it for a livery may be good by words without any act or deed at all But it cannot be good by an act or deed without any words at all howbeit that livery that hath an act or ceremony in it is the best because it taketh the deepest impression in the witnesses The most usuall formall and orderly manner of making of livery West Symb. 1. part Sect. 251. Perk. Sect. 209. 210. Co. super Lit. 48. of seisin is thus that the feoffor donor c. and the feoffee donee c. if they be present or in their absence their atturneys or servants that have authority doe come to the doore backside or garden if it be a house if not then to some part of the land where seisin is to be delivered and there in the presence of many good witnesses doe show the cause of their meeting openly and plainly doe read the deed or declare the contents thereof and of the letter of atturny if there be any And then the feoffor c. or his atturny if it be a house doe take the ring latch or haspe of the doore all the people men women and children being out of the house or if it be of a peece of ground doe take a clod of the ground or a bough or twig of a tree or bush growing thereupon and all the people being out of the ground the same ring c. clod bough c. with the deed doe deliver to the feoffee donee c. or to his atturny and in the delivery hereof doe use these or some such like words viz. I deliver these to you in the name of seisin of all the lands and tenements contained in this deed To have and to hold according to the forme and effect of the same deed Or I deliver you seisin and possession of this house or ground in the name of all the lands contained in the deed according to the forme and effect of the deed And then if it be a house the feoffee c. doth enter in first alone and shut to the doore and then he doth open it and let in others And if the feoffment gift or lease be made without deed then they doe and must withall expresse the very estate it selfe which the feoffee donee or lessee is to have as for example the feoffor donor or lessor must come to the house or land which is to be granted and where livery of seisin is to be made and there must by apt words grant the house or land to him that is to have it in fee simple or in taile or for life as the agreement is and in seisin thereof must deliver him the ring of the doore or a turfe or twig of the land And if the feoffment c. be made by writing then it is wisdome to indorse and set downe on the back of the same how when and where the same is made and the names of the witnesses thereunto But a livery of seisin that is not so exactly made may be good notwithstanding And therefore if the feoffor donor c. or his atturny Co. 9. 137. Fitz. feoffments faits 111. take any thing else that comes from off the land as a stone or the like and therewithall doth make the livery of seisin or if he take a turfe or twig from off another mans ground and not from the same whereof possession is to be given and deliver that upon the ground in the name of seisin Or if he take a peece of silver or gold or a rod stick or the like and deliver this upon the land in the name of seisin all these are good deliveries of seisin and possession So Co. 6. 26. 41 E. 3. 17. if the feoffor c. be at the doore of the house or by the land or in the house or upon the land and after he hath delivered the deed he say to the feoffee donee c. Here I deliver you seisin and possession of this house or land in the name of seisin and possession of all the lands and tenements contained in the deed Or have and enjoy this house or land according to the deed Or enter into this land or house and God give you joy of it Or I am content you shall enjoy this land in all these cases there is a good livery of seisin Et sic de similibus If I being seised of a house in fee make a feoffment of it and of Bro. feoffment 28. divers lands to a man then present with me in the same house and there deliver him the deed in the name of seisin of all the lands contained in the deed in this case this is a good delivery of the deed and a good livery of seisin also albeit I continue in possession of the house still and goe not out of it And if I be Lord of a Manor and Perk. Sect. 211 212. lying sicke within some part of the Mannor I make a feoffment of the Manor and deliver the deed to the feoffee saying to him I will that you take seisin presently and thereupon command all my tenants of the manner to atturne to him and they doe so this is a good livery of seisin So if I make a deed and after I have read it Perk. Sect. 215. Co 6. 26. being upon the land I deliver it to the feoffee donee c. and say Here I deliver you this charter as my deed in the name of seisin of all the lands therein contained or the like this is a good delivery of the deed and of seisin But if I doe only seale and deliver the deed upon or in view of the land without saying or doing any more this will not amount to a livery of seisin * Cromwals case Adjudged in the exchequer 15 Eliz. And therefore if a man make a feoffment with a letter of atturny to give livery of seisin and then he deliver the deed upon the land this is no good making of livery of seisin And so also if there be no letter of atturny If I be seised of a house in fee and being in the house say to Co. 6. 26. I S Here I S. I demise you this house for terme of my life this will not amount to a livery of
If it be inrolled any part of the last day of the six moneths it is sufficient And thus the deed may be inrolled within the sixe moneths albeit either of the parties die within the time And if the deed be not thus inrolled Ruled in the Court of Wards Co. 11. 48. it is of no force at all So that if one bargain and sell his land to mee and the trees upon it in this case albeit the trees might have been sold alone by deed without inrolment yet now being not inrolled because the sale is not good for the land it shall not be good for the trees also And no subsequent act will help in this case for if one by words of bargain and sell onely without any other words in the deed grant a reversion and the deed be not inrolled and after the tenant doth atturn hereby nothing doth passe neither shall it enure as a confirmation But yet this must be noted that in some cases where a deed will not enure by way of bargain and sale for some of the causes aforesaid it may enure to some other purposes A bargain and sale may be made of goods Experientia Of goods and cattels and cattels without any such solemnity as before for it may bee by word as well as by writing with or without any words of bargain and sell as well as by those words by a deed poll as well as by a deed indented and that without any inrolment at all and without any delivery of any part of the things sold or of any peece of money as the manner is in the name of seisin But in this case also Plow 308. some respect is to be had unto the cause and consideration of the bargain as well as in the case of the bargain and sale of lands For howsoever perhaps in the case of a grant or bargain and sale of goods or cattels by deed in writing the consideration is not materiall And that if a man doe by his deed under his hand and seal bargain and sell timber trees or any other thing without any consideration at all the same may passe well enough yet if the contract Dier 29 30. 14 H. 8. 19. 9 H. 7. 21. 21 H. 7. 6. 10 H. 7. 6. Plow 432. be by word or by writing sealed and not delivered if there be no consideration or no good consideration of it it is of no effect at al. And therefore if a man by word of mouth sel to me his horse or any other thing and I give him or promise him nothing for it this is void and will not alter the property of the thing sold But if one sell me a horse or any other thing for money or any other valuable consideration and the same thing is to be delivered to me at a day certain and by our agreement a day is set for the payment of the money or all or part of the money is paid in hand or I give earnest money albeit it be but a penny to the seller or I take the thing bought by agreement into my possession where no money is paid earnest given or day set for the payment in all these cases there is a good bargain and sale of the thing to alter the propertie thereof and in the first case I may have an action for the thing and the seller for his money in the second case I may sue for and recover the thing bought in the third I may sue for the thing bought and the seller for the residue of the money in the fourth case where earnest is given we may have reciprocall remedies one against another in the last case the seller may sue for his money If A sell cloth to B for ten shillings and B takes away the cloth against the will of A in this case A shall have an action of trespasse against B. And if A sell cloth to B for ten shillings in his election to make it a bargain or not and if he will he may keep his cloth untill the other pay him and if A say nothing but doth suffer B to take it away he may make it a bargain if he will and bring an action of debt for his money If I offer money for a thing in a Market or Faire and the seller agree to take my offer and whiles I am telling the money as fast as I can hee doth sell the thing to another Or when I have bought it we agree that he shall keep it untill I can goe home to my house to fetch the money in both these cases especially in the first the bargains are good so as the seller may not sell them afterwards to another and upon the payment and tender and refusall of the money agreed upon I may take or recover the things If one doe bargain and sell his land to me for money To have 6. How a bargain and sale shall be taken Co. 1. 87. super Litt. 10. Dier 169. and to hold to me generally and doth not say to me and my heirs by this I have but an estate for life and no more If one in consideration of ten pound paid by me doth bargaine Of lands Dier 155. and sell his land to me and my heirs To have and to hold to me to the use of the bargainor for life the remainder in tail to me the remainder to the right heirs of the bargainor this Habendum in this case is void and I and my heirs shall have the land for ever If one in consideration of ten pound sell me land for the term Co. 6. 33. of twenty years and doth not say when this term shall begin in this case it shall begin presently See more in Exposition of Deeds chap. 5. in toto If one sell me any thing by the tod pound bushel yard or ell Kelw. 87. Plow 140. 41. it shall be accounted me assured and reckoned according to the Of goods custome of the country and place and not according to the statutes or the measures of other countries If one sell me twenty barrels of ale or ten pottles or cups of Plow 86. 27 H. 8. 27. Brob Contract 4. wine by these bargains I shall not have the barrels pottles or cups with the ale or the wine But if one sell me a hogshead or a firkin of wine it seems by this bargain I shall have the hogshead and firkin with the wine If one sell me all his trees in such a wood and that I shall not 27 Ass 29. cut them untill Michaelmas and in the interim hawks doe breed in the trees it seems in this case that the vendor shall have them and that I may not meddle with them And yet see Co. 11. 58. which seems to be to the contrary The inrolment of a deed of bargain and sale when it is done within 7. How and to what purposes a deed of bargain and sale of lands and the
inrolment thereupon shall relate And how and to what purposes not Co. 4. 71. Bro. fait Inrol 9. the sixe moneths shall to most purposes relate to the time of the delivery or of the date of the deed And it is given as a rule That it shall have relation to the time of the delivery of the deed viz. to avoid all meane estates and charges made to a stranger by the bargainor after the delivery of the deed before the inrolment but not to devest any estate lawfully settled in the interim in the bargainee himself And therefore if one bargain and sell his land by deed indented to one and after before the deed is inrolled he enter into a statute or grant a rent-charge out of this land or make a lease of the land to another and then the deed is inrolled within the time in this case the relation shall avoid all the mean charges and estates And if A bargain and sell his land by deed indented to B and afterwards doth sell the same land by deed indented to C and the deed made to C is first inrolled and then the deed made to B is inrolled also within the six months in this case B shall have the land and the relation of his inrolment shall make the inrolment of the other deed void So if A levy a fine Dier 218. of the land to C yet B shall have the land But if the first deed Curia M. 3 Jac. B. R. made to B be not inrolled within the six moneths and the deed to C be inrolled within the six moneths contra If A bargain and sell land to B and after levy a fine to B of the Co. 4. 71. same land and after within the sixe moneths the deed is inrolled in this case B shall take by the fine and not by the bargain and sale If one jointenant alien all his lands in Dale to A and before the Bro. fait Inroll 9. inrolment the other jointenant die and after the deed is inrolled in this case but a moity and not the whole land doth passe If A bargaine and sell his land to B and after this A doth become So held 4. Car. B. R. Bankrupt and the Commissioners sell the land to C and 〈◊〉 after the deed is inrolled within six months in this case B and not C the purchasor shall have the land If A bargain and sel his land held in capite to B in fee B dieth Pasche 15. Jac. Ward before inrolment and then the deed is inrolled in this case the heir of B shall be inward And so was it held by all the Justices in Sir Walter Earls case Pasch 15 Iac. Curia Ward And yet in this case the wife of the bargainee shall not have dower as was held Contrarium tent per Iust Berkley Hil. 11 Cat. Dower by Anderson Chief Justice and Justice Walmsley 3 Iac. Co. B. and again in Sir Robert Barkers case 6 Iac. And if one bargain and sell 〈◊〉 his land to I S and after this the rent incur and then the deed is inrolled the bargainee and not the bargainor shall have the rent Per Curiam B. R. Hil. 11 Car. If A bargain and sell his land to B in fee and then mary C and 22 Eliz. die and C is endowed and after the deed is inrolled in this case the dower of the woman shall be taken away by relation as was held in Baron Frevils case 22 Eliz. Co. B. If A bargain and sell land to B and C in fee and B release to C Release 3 Jac. Co. B. before the inrolment this release is void If A disseisor bargain and sell the land disseised to B in fee and So held in Mockets case 10 El. the disseisee doth release to the bargainor and after the deed is inrolled in this case this release shall avail B. If A bargain and sell his land to B and B before inrolment doth bargain and sell the land to C the first deed is inrolled and then the second deed is inrolled in this case the last bargain and sale is void and shall not be made good by relation as was held by the Court 6 Jac. in Sir Robert Barkers case If a lease be made rendring rent on condition to reenter for not So was it held in Sir Christopher Hattons case payment and the lessor bargain and sell the reversion by deed indented and after the deed made the rent is arere and then the deed is inrolled in this case it shall not relate to give a reentry for the condition broken If A bargain and sell land to B in tail and B before inrolment of So hath it been adjudged the deed doth make a lease according to the Statute of 32 H. 8. and after the deed is inrolled this is a good lease And now we come to a Gift CHAP. XI Of a Gift THis word importing no more then the transferring of the property of a thing from one to another is of larger extent then Gift Quid. a feoffement which is always applied to an immoveable thing for this is often applied to moveable things also as trees cattell houshold-stuffe c. the property whereof is and may be altered as well by gift as by sale or grant And in this sense a gift is sometimes by the act of the party as when one man doth give a thing to another And this is or may be either by word or by writing And sometimes it is by act of Law as when a woman is maried to a husband or one is made Executor to another in these cases by the mariage onely and taking of the Executorship the Law gives all the goods of the woman to the husband and of the Testator to his Executor So where one doth take my goods as a trespasser and I recover damages for them upon a suit in Law in this case the Law doth give him the property of the goods because hee hath paid for them But this word Gift is sometimes taken more strictly and applied to a conveyance or passing of an estate of lands or tenements to another in tail wherein this word Dedi is most commonly used And then hee which doth so give the land is called the donor and hee to whom it is given the donee And this for the most part is by deed though it may be otherwise Donor Donee And for these deeds of gift of immoveable or moveable things see Deed and Grant in toto wherein all the learning touching this matter is involved And so we passe to a Grant CHAP. XII Of a Grant THis word taken largely is where any thing is granted or passed Grant Quid. from one to another And in this sense it doth comprehend Co. super Litt. 172. 9. Finchesley 29. feoffements bargaines and sales gifts leases charges and the like for he that doth give or sell doth grant also And
or profit out of land confirme to Lit. Sect. 535. 536. 537. the terretenant his estate in these cases notwithstanding this confirmation the signiory rent common c. doe continue and this shall not enure to extinguish it If the disseisee and a stranger disseise the heire of the disseisor Co. super Lit. 298. and the disseisee confirme the estate of his companion this shall not enure to extinguish the suspended right of the disseisee but when the heire of the disseisor shall reenter it shall be revived And if the grantee of a rent charge and a stranger disseise the tenant of the land and the grantee confirme the estate of his companionâ— this shall not enure to the rent suspended to extinguish it but after the reentry of the tenant the rent shall be revived If a man hold his land of me by Knights service rent suit of court Co. super Lit. 305. c. and I confirme his estate to hold of me by Knights service only for all manner of services and demands in this case albeit this doe abridge the service yet it shall not be construed to take away wardship reliefe aid to mary my daughter and make my sonne Knight and the like If I have an estate in land for my life and he in the reversion doth See before confirme the estate to me and my wife for the terme of our lives this shall enure only as a confirmation of my estate and not so as to give any estate to my wife But if I have a lease for life or yeares in right of my wife and he in the reversion doe confirme the estate to me and my wife To have and to hold to us for our lives this shall enure not only to confirme the estate but also to create an estate to me after my wives death And in the case of a lease for yeares it maketh our estate joint but in the case of a lease for life I shall take by way of enlargement of estate for my life after my wives death And if in this case the confirmation be to me and my wife To have and to hold the land to us two and our heires this shall enure to us in fee simple as Jointenants If land be let to husband Co. super Lit. 299. and wife To have and to hold the one moity to the husband for his life and the other moity to the wife for her life and the lessor confirme to them both their estate in the land To have and to hold to them and their heires in this case as to the one moity it doth enure only to the husband and his heires but as to the other moity they shall be Jointenants And yet if such a lease for life be made to two men by severall moities and the lessor confirme their estates in the land To have and to hold to them and their heires by this they are tenants in common of the inheritance If the disseisee confirme the estate of the disseisor To have and to Lit. Sect. 419. hold to him and his heires of his body engendred or To have and to hold to him for terme of his life this shall enure to him as a fee simple and shall confirme his estate for ever If my disseisor make a lease for life the remainder over in fee and Co. super Lit. 298. 297. I confirme the estate of the tenant for life this shall not enure to nor availe him in remainder And if the disseisor make a gift in tail the remainder to the right heires of the tenant in taile and the disseisee confirme the estate of the tenant in taile this shall not extend to the fee simple no more then if the disseisor make a gift in taile the remainder for life the remainder to the right heires of the tenant in taile and the disseisee confirme the estate of the tenant in taile for this shall extend only to the estate taile and not to the remainder for life or in fee. But if the disseisee in the first case confirme the estate of him in the remainder this shall enure to and availe the tenant for life And so if a disseisor make a lease for life and keepe the reversion and after the disseisee doth confirme to the disseisor this shall enure to the tenant for life And so if a disseisor make a lease for life to A and B and the disseisee confirme the estate of A this shall enure to B and make his estate good also in the other moity And so if there be two disseisors and the disseisee confirme the estate of one of them without saying more this shall enure to them both But if the confirmation be of the land To have and to hold the land to one in this case it may enure to him alone So if a disseisor enfeoffe A and B and the heires of B and the disseisee confirme the estate of B albeit it be but for his life yet this shall enure to both and to the whole fee simple If a lease be made for life to A the remainder to B for life and the lessor confirme their estates in the land To have and to hold to Co. super Lit. 299. them and their heires this shall enure as to the one moity to A in fee after the death of B and as to the other moity in fee to B after the death of A. If lands be given to two men and the heires of their two bodies Co. Idem begotten and the donor doth confirme their estates in the land To have and to hold the land to them two and their heires it seems this shall enure to them as a joint estate for their lives and after for severall Inheritances If the lessee for life or the disseisor doth make an absolute lease Lit. Sect. 516. 521. 519 520. 541. Co. 579. for yeares and he in the reversion or the disseisee doth confirme the estate of the lessee for yeares this makes the lease good for all the time So if the disseisor makes a lease for life and the disseisee doth confirme the estate of the lessee for life this makes the estate good for the life And if he in reversion confirme the estate of the termor but one houre this doth make it good for all the terme And if an estate for life or in fee be confirmed but for one houre it is a good confirmation for all the estate And if the disseisee confirme the estate of the disseisor To have and to hold for one houre yeare or for life or in taile this is a good confirmation for ever and makes his estate unavoidable And yet if the disseisee confirme the land Habendum the land for life or in taile c. contra If a voidable lease be made for forty yeares and the lessor confirme â—ier 52. 339 Co. 5. 81. the terme for twenty yeares this is a good confirmation of the whole terme
enure as releases howbeit it may be if they have words of surrender in them they may enure as surrenders So if there be lessee for years the remainder in taile the remainder Adjudge Trin. 5 Jac. B. R. Butlers case Surrender in fee and the lessee for years being a woman doth mary with him in the remainder in fee and he in remainder in taile release to him in remainder in fee this is a void release So if tenant for life release to him in remainder in fee or in taile it seems this is void and cannot enure as a release So if there be tenant for life Lit. Sect. 598. Plow 556. Co. super Lit. 345. the remainder in taile the remainder in fee and he in remainder in fee release to the tenant for life this will not increase his estate And if the tenant in taile in this case release to the tenant for life his estate shall be no longer increased hereby then for the life of the tenant in taile 2. He to whom the release is made Co. super Lit. 270. 273. 265. 2. In respect of the estate of him to whom the release is made must have some estate in possession in deed or in law or in reversion in deed in his own or anothers right of the lands whereof the release is made to be as a foundation for the release to stand upon for a release which must enure to enlarge an estate cannot work without a possession joined with an estate And therefore the relessee must be lessee for life years or tenant by Statute merchant staple elegit or as gardian in chivalry that doth hold the land over for the value or at least he must be tenant at will And therefore if a man let his land to another for term of years Lit. Sect. 459. Plow 423. Dier 4. 15. H. 7. 14. to begin presently and after the lessor or his heir doth release to the lessee after his entry and being in possession all his right in the land this is good to enlarge the estate according to the time set down in the release but if the release be before the term begin or after the term begin and before the lessee have entred howsoever if any rent be reserved on the lease it may enure and be good to extinguish that rent yet it is not good to enlarge the estate And yet if a tenant for 20. years in possession make a lease to B for 10. years and B enter and he in the reversion release to the first lessee for years this is a good release to enlarge the estate So if a man make a lease for years the remainder for life or years and the first lessee doth enter in this case a release to him in remainder is good to enlarge the estate So if I grant the reversion of my tenant for life to another for life and after release to him and his heires this is a good release to enlarge the estate So if a man make a lease for life or yeares to a feme sole and Co. super Lit. 273. shee take a husband and he in the reversion release to the husband and his heires this is a good release to enlarge the estate according to the words of the release But if the case be so that a man had an estate in possession of land and he be now out of the possession of it and have but a right only to it or if he have a possession only and no estate or if he have neither estate nor possession in these cases a release made to such a one will not availe to enlarge his estate And therefore if a man make a lease for life the remainder for Co super Lit. 270. life and the first lessee dieth and the lessor release to him in remainder for life before his entry this is a good release to enlarge his estate for he hath an estate of free hold in law capable of enlargement by release before entry But if there be lessee for life the remainder Lit. Sect. 451. for life the remainder in tail the remainder in fee and the lessee for life is disseised during the possession of the disseisor he that hath right doth release to one of them in the remainder this is void So if lands be given in taile or leased for life and the donee Lit. Sect. 455 456. or lessee is disseised and during the possession of the disseisor the donor or lessor doth release all his right to the donee or lessee this is void and will not enlarge his estate howbeit if there be any rent reserved on the estate it will extinguish the rent So if the tenant Co. super Lit. 273. by the curtesie grant over his estate and after he in reversion doth release to the tenant by the curtesie in this case his release is void and will not enlarge his estate So if an Infant make a lease for life and the lessee granteth the estate over with warranty and the Infant at full age doth bring a Dum fuit infra aetatem and the tenant doth vouch the grantor who doth enter into the warranty and the demandant being the Infant doth release to him and his heires this will not enlarge his estate for in truth he had no estate before and that which is not cannot be enlarged And if lessee Dier 251. for life or yeares release to him in remainder or reversion this cannot be good as a release howbeit if there be apt words it may amount to a Surrender * Co. super Lit. 271. Lit. Sect. 461. And if a man have only an occupation of land as tenant at sufferance as when a lessee for yeares doth hold over his terme or the like no release to him can work any enlargement of estate for albeit he have a possession yet hath hee no estate and besides in this case there is no privity which is the third thing required in these releases For as in all Co. super Lit. 296. Lit. Sect. 461. these releases that enure by way of increase or passing an estate 3. In respect of privity there must be some estate in the relessor and the relessee so there must be some privity in estate between them at the time of the release made for an estate without privity is not sufficient And therefore it must be between donor and donee lessor and lessee and the like as in the cases before between him in reversion and the lessee for life or yeares tenant by Statute Merchant or Staple or by Elegit or Gardian in Chivalry that keepeth the land for the value And if tenant for life lease for yeares and he in the reversion and Plow 541. the tenant for life doe joine together and release to the lessee for yeares this is a good release to enlarge the estate So if he Co. super Lit. 273. in reversion release to the husband that hath an
estate in the right of his wife only for life or yeares this is a good release †Dier 4. Co. 3. 22. So if lessee for yeares make a lease of the land but for part of the terme the privity continueth still and therefore a release to him is good to enlarge the estate But if he assigne over all the terme then the privity is gone and therefore a release made to him afterwards is void And then a release made to the assignee of the terme is good to enlarge the estate And if a disseisor make a lease for life or Plow 540. 14 H. 7. 4. Lit. Sect. 518. yeares and after he and the disseisee joine together to make a release to the lessee for life or yeares this is a good release to enlarge the estate But if the disseisor in this case make a lease for life or yeares and the disseisee or he that hath right release to the tenant for life or yeares in this case the release is void for want of privity And if there be lessee for yeares the remainder for life and Co. super Lit. 273. he in reversion release to the lessee for yeares or him in remainder for life and his heires all his right this is a good release to work an enlargement of estate So if one make a lease for life and grant the reversion for life and then the lessor doth release to the grantee of the reversion and his heires this is a good release to enlarge the estate of the grantee and here is privity enough If A be Bro. Release 71. tenant for life the remainder to B in taile the remainder to C for life the remainder to A in fee and A die and his heire doth release all his right to B being in possession this is a good release and gives the fee simple But if A make a lease to B for life and the lessee maketh a lease Co. super Lit. 273. Lit. Sect. 516. for yeares and after A in the life time of the tenant for life maketh a release to the lessee for yeares this release is void and will not enlarge his estate for want of privity So if a man make a lease for twenty yeares and the lessee make a lease for tenne yeares and the first lessor doth release to the second lessee and his heires this release is void So also if the donee in taile make a lease for his own life and the donor release to the lessee and his heires this release is void So also if the donee in taile make a lease for his owne life and after the donor release to the donee and his heires it seems this is not a good release Also one Jointenant or coparcener may Bro. Release 77. Perk. Sect. 84. release to another and thereby transferre all his estate and give the whole interest unto his companion and this is a good release to passe all his or her part of the land And if there be three Jointenants in fee and they make a lease for life and after two of them release all their right in the land to the third this is a good release So if one make a lease for life to another and after the grant the reversion to seven and the tenant for life doth atturn and after four of the seven release all their right to the other three and after one of the three release to the other two these are good releases So if a lease for yeares be made to two to begin at a day to come a release by one of them to the other is good to give all the terme and all the land to the relessee But it seems one tenant in common 1â— E. 4. 3. cannot release to another tenant in common The fourth thing that is required in such a release is sufficient 4. In respect of the words â—â— whereby it is made 4â— Co. super Lit. 273. 264. 301. words in law not only to make a release which is required in all releases but also to raise and create a new estate For this therefore know that all releases of what kind soever are commonly made by these words Remisisse Relaxasse quietum clamasse as being the most ancient and significant words for this purpose And a mongst these the word Release is the most effectuall word as that which doth include the other two and as that which is the proper and peculiar word for this kind of conveyance But there are other 9 H. 6. 35. Dier 116. Lit. Sect. 544. Co. super Lit. 264. Dier 307. Co. 9. 52. words also by which a release may be made as Renunciare Acquietare c. And therefore it is held that if one have common in anothers land and he by deed release it to him thus Renuntio Communiam meam c. this is a good release And if the lessor doe but grant to his lessee for life that he shall be discharged of the rent this is a good release of the rent And it is a rule That by what words a debt or duty may be created by words of a contrary signification it may be released And therefore if one doe knowledge himselfe to be satisfied and discharged a debt this is a good release of the debt And for words to raise the estate it is usuall and most Co. super Lit. 273. Lit. Sect. 465. 468 469. safe to specifie in the deed what estate he to whom the release is made shall have and in most cases this is needfull for it is generally true That when a release doth enure by way of enlargment of estate no inheritance in fee simple or fee taile can passe without apt words of inheritance And therefore if I make a lease of land to another for his life and after I release to him all my right without more saying in the release hereby his estate is not enlarged But if I release to him and his heires by this he hath a fee simple And if I release to him and the heires of his body by this he hath an estate taile But where a release worketh by way of mitter le estate there in some cases there needs not any words of inheritance as in cases where releases are made between Jointenants or coparceners as where a joint estate is made to the husband and wife and a third person and their heires and the third person doth release all his right to the husband alone or to the wife alone So if there be three Jointenants and one of them doth release to one of the other two in all these and such like cases there needs not any limitation of the estate for the release is good without it In every good release in deed that doth tend and enure to give Lit. Sect. 466 Co. super Lit. 265. Co. 5. 70 71. 1. 112. 8. 132. 3. When it doth enure by way of passing and extinguishment of a right or title only 1. In
respect of the estate of the relessor discharge or extinguish any right or title of lands it is also further requisite 1. That he that doth make it hath at the time of the release made some right or title to release As where one doth disseise me of land and I release to him all my right in the land this is a good release So if one disseise my tenant for life and I being the next in remainder or reversion in fee do release to him that did make the disseisin this is a good release So if the husband make a lease for life and then take a wife and dieth and the wife release her dower to him in reversion this is a good release And so also if after the mariage a man make a lease for life the remainder in fee and shee release all her right to him in remainder in fee or to him in reversion this is a good release and will barre her for ever And therefore if the Relessor have only a possibility of a right Lit. Sect. 446. Co. 10. 47. 42. super Lit. 265. or a right happen to come to him after the release this is not sufficient to make the release good And therefore if the father be disseised and the son before his fathers death release all his right to the disseisor and after the father dieth so that the right doth descend this is no good release to bar the Relessor of his right So if there be grandfather father and son and the father disseise the grandfather and make a feoffement and the son release in the life time of his father and after the father and grandfather die this release in this case will not bar him So if a lease Co. 10. 57. be made for life the remainder to the right heirs of I S and the lessee is disseised and the eldest son of I S living his father doth release to the disseisor this release is void So if the conusee of a statute c. doe release to the conusor all his right in the land this is void Co. 5. 70. and he may sue execution after notwithstanding Or if the Relessor Co. super Lit. 265. have only a power this is not sufficient to make the release good And therefore if a man by his will devise that his executors shall sell his land and dieth and the executors release all their right and title in the land to the heirs this release is void 2. In all cases of a release of a bare right of a freehold in lands 2. In respect of the estate of him to whom the release is made or tenements he to whom the release is made must at the time of Co. super Lit. 267. the making thereof in any case have the freehold in deed or in law in possession or some state in remainder or reversion in deed and not in right only in fee simple fee tail or for life of the lands whereof the release is made for rights of entry and actions and the like are not to be transferred to strangers but are thus to be released and such releases are good As if the disseisee release to the disseisor himself who hath the freehold in deed or to the heir of the disseisor before his entry who hath the freehold in law or to the lessee for life of the disseisor these releases are good So if a disseisor make a lease to A and his heirs during the life of B and A die and the disseisee release to his heir before his entry this is a good release So if a fine sur conusance de droit come ceo c. or sur conusance de droit only which is a Co. super Lit. 266. 275. Lit. sect 448. 1 H 6. 4. Dier 302. feoffment on record be levied or if tenant for life by agreement of him in the reversion surrender to him in the reversion or if a man doe bargain and sell his land by deed indented and inrolled or uses are raised by covenant on good considerations in all these cases the conusee him in reversion bargainee and cestuy que use have a freehold in law in them before entry And therefore a release to them of the right of the land by him that hath it is good and will bar the Relessor But otherwise it is in cases of Exchange Partition or upon Livery within the view for in these cases no release is good untill an actuall entry made for till then they have neither freehold in right nor law So if a disseisor make a gift Lit. Sect. 449 in tail or lease for life or years of the land and keep the reversion and then the disseisee or his heir release to the disseisor all his right this is a good release to bar his right for ever So if Co. super Lit. 260. Lit. Sect. 455 456. the heir of the disseisor be disseised and the first disseisee doe after release to him all his right this is a good release to bar him So if a donee in tail discontinue in fee and the donor release to the discontinuee and die this is a good release against the donor So if the donee in tail be disseised and after the donor release to the donee all his right this is good but in this case nothing of Extinguishment the reversion will passe by the release for the donee had then nothing but a right But if any rent be reserved on the estate tail the rent is gone by the release So if a lease be made to one for life rendring rent and the lessee is disseised and the lessor release to the lessee and his heirs all his right in this case albeit the rent be extinct yet nothing of the right of the reversion doth passe And yet if a woman that hath right of dower release to the guardian in Chivalry this is a good release and her right or title of dower is gone But if a disseisor make a lease for years and the disseisee release to the lessee for years this release is void because he hath no freehold But if he make a lease for life and the disseisee release to the lessee for life this is a good release So also a release to the disseisor after the lease for years made is good And Co. super Lit. 265. if lessee for years be ousted and he in the reversion disseised and the disseisor make a lease for years and the first lessee release to him this is a good release Also in some cases a release made to Lit. Sect. 448 449 450 451. Co. 8. 151. one that hath neither freehold in deed nor freehold in law is good when he hath an estate in reversion or remainder as in the case before where a release is made by the disseisee to the disseisor after he hath made an estate for life So if the demandant in a reall action release to the tenant that comes in by
pence for his suit this grant will not extinguish and determine the services or tenure If there be Lord and tenant and the tenant be disseised and Lit. sect 457. Co. 10. 48. super Lit. 268. after the Lord release all his right c. to the tenant by this release the service or seigniory is extinct for albeit a right regularly cannot be released to him that hath but a bare right yet a seigniory may be released and extinct to him that hath but a bare right in the land But if the tenant make a feoffment in fee and then the Lord release all his right c. to the tenant this is not good to extinguish the seigniory or services but it will discharge all the arrearages If a rent-charge common of pasture or any other profit apprender Lit. sect 480. 536 537. Co. super Lit. 305. Lit. sect 455 456. Co. super Lit. 273. be issuing out of my land and he that hath it doth release it to me this is a good release and will extinguish it But if I be disseised of the land and have but a right at the time of the release made the release is not good as it is in the case of a rent-service and a seigniory But if lands be given to me in tail or for life rendring rent and I be disseised and after the donor release to me all his right in the land this is a good release and shall extinguish the rent So if in this case where I am tenant in tail and I make a feoffment in fee rendring rent and after I release to the feoffee this is a good release and hereby the rent is extinct And if two coparceners be of a rent and one of them take the terretenant to husband and after either of them release these releases will be good If one disseise me of land and then grant a rent-charge out of Lit. sect 527. Co. super Lit. 300. the land and I reciting the same grant release to the grantee this release it seems is good and will bar me so as after my reentry I shall not be able to avoid it If two have the grant of the next advowson or avoidance of a Co. super Lit. 270. Of an Advowson c. Church before it be void one of them may release to the other but afterwards they cannot If A make a feoffment in fee gift in tail lease for life or years to Co. 1. 112. Perk. sect 823. 764. Of a Condition B on condition that upon such a contingent it shall be void in this case A may before the condition broken release all his right in the land or release the condition to B and this will be good to make the estate absolute and to discharge the condition So if a feoffee on condition make a gift in tail or lease for life and after the feoffor release to the donee or lessee this is a good release to discharge the condition So if a copyholder surrender to the use of anothrr on condition and this is presented to be without condition and after the surrendror doth release to him to whose use the surrender was made all his right c. this is a good release and doth extinguish the condition But if a disseisor make a feoffment on condition and the disseisee release to the feoffee on condition howsoever this doth bar the right of the disseisee yet it doth not discharge the condition Where a power or authority is such that doth respect the benefit Co. 1. 112 113 173 174. Of a power of revocation of the relessor as in the usuall cases of power of revocation of uses when the feoffor c. hath power to alter change determine or revoke the uses being intended for his benefit and he release to any one that hath a freehold in possession reversion or remainder by the former limitation this is a good release and doth extinguish the power and make the estates that were before defeasible absolute and it doth seclude him from any power of alteration or revocation But if the power be collaterall or to the use of a stranger and nothing to the benefit of him that makes the release as if A make a feoffment to B to divers uses provided that B shall revoke the uses and B release to any one of them that hath a use this doth not extinguish the power as in case where the power is given to A and A doth release it If a feoffment be made with warranty and the feoffee release Of a warranty the warranty this doth extinct it And so it is of other warranties But if tenant in tail release the warranty annexed to his estate tail this doth not extinguish this warranty Any man may release any debt or duty due to himself Also Of debts and other duties personall Bro. Release 88. 21 H. 7. 29. Co. 5. 27. a man may discharge or release any thing due or any wrong done to his wife before or after the mariage And therefore if a trespasse were done or a promise were made to my wife before 1. In respect of the persons the mariage I may at any time during the mariage release this So if any wrong be done or obligation statute or promise Husband and wife made to her alone or to her and me together at any time during the mariage I alone may release and discharge this And if my wife be an executrix to any other man I may release any debt or duty due to the testator And if a legacy be given to a woman sole to be paid at Michaelmas Per ch Justice B. R. Mich. 17 Ja. next and I mary with her and I release the legacy before the day it seems by this the legacy is gone An infant executor may release a debt duly paid unto him of Infant Co. 5. 27. the testators debt But if he release that which he doth not receive it is a void release And regularly the release of an infant is void An executor before probate of the Will may release a debt or Co. 5. 27. 9. 39. 2. In respect of the time duty due to the testator and this release is good to bar him A future or contingent promise may be released and discharged Trin. 14 Ja. in Eltons case before the contingent happen A debt on an obligation or rent may also be released before the day of payment as well as after but not by the same words And therefore if one promise to I S that upon the surrender of I S he will pay him an hundred ten pound and after the promise and before the surrender he release this debt this doth discharge the debt But if the promise be that if the surrendree shall sell the land and shall have five hundred pound that then he shall pay to the surrendror an hundred pound more and the surrendror before sale release this
be two daies of that name in the yeare in this case it seemes it must Dyer 77. be done that day that is furthest of from the time of the making of the obligation especially if that day be the more notorious of the two dayes If the condition be to pay 10l the eleventh of May next following Adiudg M. 20. Iac. B. R. Prescots case and the obligation is dated the 5th of May in this case the money must be paid the 11th day of the same Moneth of May and not of the next Moneth of May. If the condition be to stand to the award of I S and I S award 22 Ed. 4. 25. money to be paid but set no time for the payment of it this must be paid in convenient time else the obligation shall be forfeit If one be bound to me in an obligation with condition that if I enfeoffe Perk. Sect. 797 799. him of White acre he will pay me 10l but doth not say when this must be done assoon as I make him the feoffement So if one be bound to me that if the goods I have delivered to B shall be lost that C shall satisfie me for them and doth not say when this shall be presently after the loosing If the condition be to pay I S money when he shall come to M. 2. Iac. B. R. Crausdenet Morses case the age of 21 yeares in this case it must be paid the very day I S doth come to his full age and paiment after is not a sufficient performance of the condition If the condition be to come at a day to such a place to do a thing 39 Eli. B. R. Fitz. Barre 92. and the thing cannot be done without the concurrence of the other partie in this case the obligor must stay for the very last instant of the day for his comming and it seemes also he must stay at the place all the day long If the condition be to pay a rent at Mich. or within 20 dayes Adiudg pasâ— 39 Eli. after the obligation is not forfeit before the 20 dayes be past If one be to doe a thing on a day certaine he may doe it any part Eroo Condition 145. Dyer 17. 7. Ed. 4. 3. of the day whiles the light doth last And if the condition be to doe a thing by or before a day it may be done the last instant of the day before and it is sufficient If the condition of an obligation be to pay money or doe any Perk. Sect. 780 781. 7 Ed. 4. 4. 22 Ed. 4. 25. Lit. Sect. 340 341. like transitory act to the Obligee on a day certaine but no place is 3. In respect of the place where the thing is to be done set down where it shall be done in this case it must be done to the person of the Obligee wheresoever he be and for this purpose the Obligor must at his perill seek out the Obligee if he be intra quatuor maenia otherwise the obligation is forfeit but if the Obligee be not within the Kingdom at the time when the thing is to be done he is not bound to seek him so neither is the obligation forfeit for not doing of the thing So if one grant an Annuity to another and doth not set down where it shall be paid and gives a Bond with condition for the payment thereof in this case it must be done to the person of the Obligee where ever he be And the like Law is as it seemes where the thing to be done by the condition is to be done by or to a stranger But when the thing the party is bound by the condition to doe is locall he is not bound to goe any further or to any other place but to the place it selfe And therefore if the condition be to make a Feoffment of a piece of Land the party that is bound to doe it is not bound to goe to any other place but to the piece of land to doe it And if a man make a Feoffment in Fee or Lease for life or years of land rendring rent generally and gives an obligation with condition for the payment of the rent the Feoffee or Leassee is not bound to goe to any place from the land to seek the Feoffor or Leassor to pay him this rent If the condition be to deliver 20 quarters of corn such a day to Perk. Sect. 785. the Obligee and no place is set down where it shall be delivered in this case it is sufficient if the Obligor when the corn is ready doe give notice thereof to the Obligee and to wish him to appoint a place wherunto the Obligor may bring it and if he refuse to appoint a place it is at his own perill or the Obligor may bring the corn to the house of the Obligee and this is the safest way and if the Obligee refuse it the condition is performed and the obligation is discharged If the condition be to performe all the Covenants in an Indenture â—oo 4. 80. Dyer 257. 4. In respect of the thing it self to be done this shall bee taken as well for the Covenants in Law as for the Covenants in Deed. If a Lease be made of a Mannor excepting a Close and the Plow 67. Leassee make an obligation to the Leassor with condition that the To perform Covenants Leassee shall perform omnia singula in scripto praedicto contenta by this the Close shall be taken to be within the condition so that if the Leassee disturb the Leassor in the Close excepted this shall be a of breach the condition If the condition be to makea Feoffment to the Obligee of Land To make a Feoffment Lease c. See Covenant Num. 6 in this case the Feoffment may be made with or without writing and if it be made by writing it may be made without any warranty or Covenants and this will be a sufficient performance of the condition If the condition be That the Obligor shall make a Lease to the Coo. 6. 33. Obligee for 20 years and it is not set down when the Lease shall begin it shall begin presently If the condition be That the Obligor shall doe any act upon request Dyer 228. that the counsell of the Obligee shall think reasonable as To make a Release or other assurance for example shall doe any act c. for the releasing of an obligation wherein the Obligee is bound to the Obligor and the Obligee by advise of Counsell deviseth and requesteth a release of all demands to the Obligee and to I S in this case the Obligor may refuse to seale it albeit it â—e devised by the counsell of the Obligee because it is unreasonable for it must be a reasonable act that the Obligor by this condition is bound to doe If the condition be to pay 10l at Michaelmas next and 10l To pay money or rent
Adiudg â—il 39 Eli. Co. B. yearly after untill I S he made Knight in this case albeit I S bee made Knight before Michaelmas yet the first 10l at Michaelmas must be paid If the condition bee thus That if the Obligor shall for ever Adiudge M. 18. Iac. B. R pay yearly to the Obligee c. 10l at the two usuall Feasts by equall portions or if his heires shall at any time hereafter pay 100l at Harbert versus Rochsey one payment to the Obligee that then the Obligation to be void in this case albeit the Obligor hath election which of these two things to doe yet because the intent is apparant that one of these things should be done if therefore the 100l be not paid before the first Feast the 10l must be paid yearly If the condition of an obligation from A to B be thus That Dyer 421 43. To warrant land and for quiet enjoying whereas A hath sold to B certaine Meadow in Dale that the said A shall warrant the same against Lord and King and all others if the said B shall peaceably enjoy it to him and his heires of the Lord of the Mannor of M by the services due after the custome c. in this case the substance of this being for quiet enjoying it shall be extended that way and albeit it be not said what he shall warrant yet it shall be taken the Land in question and the warranty shall be construed to last only for the life of B and not to extend to any new titles after the Covenant especially such as are by the act and default of the Obligee himselfe as if he commit a forfeiture and the Lord enter or the like If the condition be That the Obligor shall sufficiently prove Perk. Sect. 791. 10. Ed. 4 11. To prove a thing such a thing this shall be taken for proofe by enquest and accordingly it must be done But if the condition be that it shall be done by such a time or before such persons as when or where such Golds case in Harberts Rep. 127. proofe cannot be had then it is otherwise Where the word proofe is put generally it shall be understood of proofe by Iustice but when the parties agree upon another form of proofe that shall prevaile against that which is but instruction of Law If one be bound in an obligation with condition to suffer his wife Curia Trin. 7. Iac. Co. B. To suffer his wife to make a Will to give to her kinsfolks children or others portions of his goods to the value of 100l and that he will perform it and she give part to one and part to another in this case the husband must performe it accordingly But if the condition be to suffer her to give to A and B 100l and that he will perform it and she give 100l to A he is not bound to perform this If the condition be That hee shall perform his wives Will so it Adiudge Hil. 7. Iac. B. R doe not exceed 20l. and shee make a Will and devise 100l in this case hee is not bound to perform the Will for the 20. If the condition of an Obligation be That the Obligor shall infeoffe 5. In respect of the manner and order of of doing the thing and other matters Kelw. the Obligee and such others as he shall name by a day in this case the Obligee must doe the first act viz. name the others otherwise the Obligor doth not forfeit his obligation by the not doing of iâ— But if the condition be to infeoffe me or such others as I shall name before such a day in this case if I doe not name others it seemes he must enfeoffe me before the day at his perill If the condition be that the Obligor shall make such an estate Coo. 5. 25. 7 Ed. 4. 13 Perk. Sect. 775. of Land as I S shall advise I S must first advise and this must be made known unto the Obligor ere he is bound to doe any thing and if he never advise he is never bound to doe any thing for it is in this case as if one bee bound to stand to the award of I S and I S never make any or make a void award which is all one If the condition be to make such a discharge in such a Court Coo. 5. 23 as the Obligee or his counsell shall advise in this case the Obligee must doe the first act viz. advise and give notice of the advise to the Obligor before he is bound to doe the thing But if the condition be to make such a discharge in such a Court such a day as the Judge of that Court shall advise in this case the Obligor must at his perill procure the Iudge to advise a discharge and it must be done that very day or the obligation will be forfeit If the condition be to pay 20 l. to the Obligee when he doth Per. Iust Nichols M. 13 la Co. B. come to London in this case the Obligee must doe the first act viz. make known to the Obligor when he doth first come to London for otherwise it seemes the Obligor is not bound to pay the money If the condition be that the Obligor shall levie a fine to the Obligee Coo. 5. 127 Dyer 371. before such a day the Obligee must doe the first act viz. sue out the Writ of Covenant If the condition be that the Obligor shall deliver 20 Clothes â—1 Ed. 4. 52 to the Obligee such a day the Obligee paying for every cloth immediately after the delivery 20 l. in this case the clothes must beâ— delivered albeit the Obligee refuse to pay the money but if immediately after be left out it seems the Obligor is not bound to deliver the cloth unlesse the Obligee first pay the money If the condition be that the Obligor and his heires shall at any Coo. 2. 3 4 Dyer 337. time upon request made doe any act c. that the Obligee shall require c. and the Obligee tender a Release or other Deed to seale in this case if the Obligor or his heir that is to seale the Deed be an illiterate man he may refuse to seale it untill he can get some body to read it unto him but he may not refuse or delay to scaâ—e it untill he can have a Lawyers advise upon it but he will forfeit his Obliligation If the condition be to doe any thing upon request the Obligor Perk. Sect. 773. Coo. 5. 21. untill request made is not bound to doe any thing towards it neither can he forfeit his obligation till them And yet if in this case the Obligor disable himselfe to doe the thing he hath undertaken to doe upon request before the request made the obligation may bee so feit without any request made If the condition be that the Obligor shall within a
his Will he doth give White Acre to B and his heirs in this case the first Devise to A is void * Dyer in his Lecture 1. per Inst Dodr. And yet in this last case some have held the Devises shall be good and that A and B shall be Joint-tenants Ideo Quaere * Trin. 9. Ia. B R. If one devise all his land to I S and his heirs excepting 20 l. for seven years which he willeth shall be imployed for his children this is a good Devise of this summe of 20 l. a yeare 9. And a man may devise his land for so many yeares as I S shall name and after appoint that his Plow â—23 546. sonne shall have it during the minority of his sonne and both these Devises may stand together And therefore if A be possessed of the Mannor of D for yeares and he deviseth all his Term to his eldest sonne if he live so long and if he die before he have any issue of his body then to his younger sonne in the same manner but withall he doth appoint that his wife shall have the occupation of the land untill his eldest sonne be 21 years of age these Devises shall stand together and the wife shall enjoy the Mannor for that time by this Devise 10. A man may devise a term of years by way of remainder as for example a man that is possessed of a term of Coo. 8. 95. Plow 519. 546. 516. 539. Dyer 277. years of land may devise it to I S for life the remainder to I D or to I S for life and that it shall after remaine to I D or to I S for so many years as he shall live and after to I D or in any such like manner these are good Devises both to the first and to him in remainder also by way of Executory Devise though not by way of remainder and in this case the first Devisee cannot hinder the second Devisee of the remnant of the terme But a man cannot by Deed Grant in his life time grant his term in this manner * Coo. 10. 8â— â—7 pasâ—â— 17. â—ac B. R. child versâ—s Baily Nor if a man be possessed of a term can he entaile it by his Will And therefore if a man possessed of his terme of years of land Devise his term or his land to I S and his heires or to I S and the heirs of his body or to I S and his issues the remainder to I D this remainder is void and it is a good devise of the whole terme to I S and his Executors * 37 〈◊〉 6. 30. 〈◊〉 Broo. Sect. 388. 3â—4 209. Also a chattell personall may as it seemes be devised to one for life and afterwards to another but yet so as the one must have the property only and the first but the occupation only as if one devise that I D shall have the occupation of his plate for his life and after that it shall remaine to I S this is a good Devise of the plate to I S. But if the thing it selfe be devised to the first of them then the Devise to the second is void for the gift of a chattell personall for one houre is the gift of it for ever And so it did seeme in the Lady Daves case Hill 9. Car. B. R. 11. A Legacy of goods or chattels may be given Swinb part 4. Sect. â—7 to or untill a certaine time or from or after a time certaine or incertaine as for five years or from or untill the marriage of A or the like and these Dispositions are good 12. A man may Plow 524. devise his land for so many yeares as I S shall name and if I S doe name a certaine number of yeares in the life time of the Devisor this will bee a good Devise But if one devise his land for so many yeares as his Executor shall name it seemes this Devise is not good 6. As touching the sixth thing required in a good Devise these things are to be known 1. That Lands Tenements Dyer 371. Coo. 8. 83. 6. 16. super Litt. 111. Perk. Sect. 496. 500. 497. 538. Lit. Sect. 167. Dyer 155. old N. 〈◊〉 Sixthly in respect of matteâ— touching the thing devised and what may be devised and by what name and Heriditaments for the nature and quality of them are devisable as well as other things And therefore by the custome of some places lands in possession reversion or remainder are devisable in Fee for life or yeares and a man that hath a Lease for yeares of land may devise the land at his pleasure during his term But by the ancient Common-Law in favour to heires the lands that a man had in Fee simple were not devisable by Testament except only in Devise of lands and teâ—â—ements some speciall places by the custome of the place as Gavelkind-lands in Kent and lands within certaine Borrow-Townes as London Oxford c. and by the custome of those places such lands are devisable And in some places the custome is that they may devise their purchased lands only and in other places that they may devise their lands discended also And in some places the custome is that they may devise for life only and in other places that they may devise in Fee-simple and fee-Fee-taile also And in all these places where such customes are they may devise their lands now as they might have done before the Statute for the Statute hath not destroyed their custome And therefore at this day they that have such lands in such places have their election eitheir to devise according to the power the custome doth give them or according to the power the Statute doth give them and in the first case the Devise is good against the heire for the whole and in the last case it is good against him for two parts in three only Also by the Perk. Sect. 496. 528. 538. Common-Law the Uses of lands were devisable as goods and chattels were as the pleasure of him that had them But otherwise and in other cases lands and tenements might not be devised and disposed by Will untill 32 H. 8. at which time the owners of lands tenements rents c. were by Act of Parliament enabled to devise and Stat. 32. H. 8 c 1. 34 H. 8. c. 5. dispose their lands as followeth He that hath any land in possession reversion or remainder by Socage Tenure and hath no land held in Capite or by Knights Service may devise all his land or any rent Common or other profit apprender out of it to any person in Fee-simple fee-Fee-taile for life or years at his pleasure Hee that hath any such land held of the King in Capite by Knights Service or by Knights Service and not in Chiefe or held of any common person by Knights Service may devise two parts thereof in three to be devided or any rent c. out of
cannot devise by his Will any part of the third Acre and after he purchase three Acres of equall value held in Socage that in this case because he hath the reversion in Fee upon the estate Taile made to the younger sonne he can devise no more but two parts of the said land so newly purchased But if the reversion be gone before the purchase he may devise the whole Coo. 6. 16. super Litt. 111. but if a man be seised of lands in Fee part of which are held of the King in Capte by Knights Service and he convey two parts of it unto any of his sonnes or to the use of his wiâ—e for life or in Taile in this case albeit he may not devise any part of the residue yet he may by his Will devise the reversion of the two parts And in case where he hath not conveyed the full two parts he may devise so much as to make up that hee hath conveyed full two parts And it was further resolved in the same Leonard Loveâ—s case That whereas the Statute saith All persons c. having c. of any Mannors c. in possession reversion or remainder c. and the Feoffor L L in the case before had a remainder in Taile expectant upon the estates in Taile limited to the sonnes that this remainder was not within the Statute nor would have restrained the Devise but for the reversion in Fee afterwards A B being seised in Fee of the Mannor of Gracediu held in Capite and of the value 30 l. per annum and of the Mannor of Normanton held in Capite of the Coo. 11. 23. Henry Harpurs case value of 18 l. per annum in consideration of a marriage with M did covenant to stand seised of the Mannor of G to the use of himselfe and the heirs males of his body on the body of the said M and after to the use of W B his brother and the heires males of his body and after to the use of another brother in Taile and after to the use of his own right heires and of the Mannor of N to the use of himselfe and M he is to marry and the heires of his body and after the remainders as before of the other Mannor and after the marriage is had and A B doth purchase other lands held in Socage of the value of 3 l. per annum and then devised the same new purchased lands in this case it was adjudged that the Devise was void for a third part of the Socage land in respect of the reversion dependant upon the estate taile and yet that it was a good Devise for two parts of the new purchased land albeit he had executed his power and given more then two parts to the use of his wiâ—e And in these cases where a man hath land held in Capite and other land Coo. 10. 83. and he convey the land held in Capite to any of the Uses within the Statute as to his yoâ—â—ger children or the like or convey it with power of revocation only so that he hath power of the land still and after he purchase land held in Socage in this case it seemes hee may devise all the land newly purchased as if the land were conveyed without any such power of revocation A being seised of land in fee Coo. 6. 17. Sir Edwards case held of the King in Capite made a Feoffment of two parts of it to the use oâ— his wiâ—e for her life for her Jointure and after made a Feoffment of the third part to the use of such person and persons and of such estate and estates as he shall limit and appoint by his last Will and Testament in writing and afterwards he did by his last Will in writing devise this third part to one in Fee in this case it was resolved that the Devise was good for the whole third part And yet if a man make a Feoffment in Fee of land held in Capite to the use of his last will albeit the devise of the land be with reference to the Feoffment yet it is void for a third part E B being seised of 6 Mannors the one in Fee and the rest in Taile with the Coo. 10. 81. Tr. 34. Eliz. Bedinâ—ields case reversion expectant to him and his heires and hath issue T B divers of which Mannors are held of the King in Capite by Knights service and every of them of equall yearely value by his last Will in writing did devise all the said Mannors to divers persons and their heires for payment of his debts and advancement of his children and then died and the estate in taile that discended to his issue was more then a third part of all in this case it was resolved that the Devise was good for two parts of the reversions and for the entire Mannor in Possession and not void for a third part of the Mannor in Possession and for all the reversions in Fee A man being seised in Fee of Gavelkind land in Kent part whereof is held of Coo. Rep. Stamf. Per. 8. the King in Capite and part of Common persons in Socage hath issue A who hath issue B C and D and A deviseth some of these lands to B and some to C and some to D his Grand-children in taile in this case the Devise is void for a third part of the whole aswell for the land held in Socage as the land held in Capite And yet if in this case no Will be made the King shall have but a third part of that which doth discend to the eldest sonne the heire at the Common-law and not the third part of that which doth discend to the younger sonnes by custome And if lands devisable by custome come into the Kings hands and he grant them to hold of him in Capite and the Patentee devise them to the use of his wife children or for paiment of his debts c. in this case the Devise is void for a third part And here note that in all the cases before where a man is restrained to devise a third part of his land if he devise the whole the Devise is good notwithstanding for so much as he hath power to devise And as touching the thing devised is further to be known 13. That a man must have right to and possession of the land he deviseth or else the Devise is not good Plow 485. Devise of a right to Land or of Land that is another mans And therefore iâ— a Disseisor devise the land he hath gotten by Disseisin this Devise as to the Disseisee is void And if a man be disseised of his land so that he hath nothing but a right thereof left and then he devise this right or devise the land this Devise is void And if one contract for land aâ—d pay his money for it but Nevils case hath no assurance of the land and he devise this land to
name But if it be such a cause of action as is altogether uncertain as where a man may have an action against another for taking away his goods or to compell him to make an account or the like this is such a cause of action as is not deviseable And yet possibilities and incertainties are in divers cases devisable Perk. Sect. 527. Litt. B100 Sect. 437. Dyer 272. Plow 520. And therefore if one have money to be paid him on a Mortgage he may devise this money when it comes as if I enâ—eosse a stranger of land upon condition that if he do not pay me 20l. such a day that I may reenter in this case I may devise this 20l. if it be paid and the Devise is good albeit it be made before the day of paiment come Childs case 17. Ia. B. R. And if a man be possessed of a Terme of yeares and devise all the residue of that Terme of yeares that shall be to come at the time of his death this Devise is good and yet such a Grant by deed is void Grant * But a meer possibility and a thing altogether incertain is no more devisable by will then it is grantable by deed 19. Emblements i. e. the Devise of Emblements Perk. Sect. 520. 521. c. See in grantâ— corne that is sowen and growing upon a mans ground at the time of his death and which himselfe should have reaped if he had lived to the harvest as in most cases he shall where he doth sowe it are devisable And therefore if a man have land in Fee simple Fee taile for life or yeares and sowe it with corne he may devise the corne at his death to whom he please And yet if Lessee for yeares sowe his land so little while before his Terme expire that it cannot be â—ipe before the end of the Terme and he die it seemes he cannot devise this corne for if he had lived he could not have reaped it after the end of the Terme 20. Obligations Counterpanes of Leases and Perk. Sect. 527. such like things also are devisable but in this case the Devisee cannot Devise of Obligations Counterpanes of Leaseâ— c. sue upon the Obligation in his own name nor enter for the condition broken upon the Lease if there he cause but he may cancell give sell or deliver up the Obligation or Counterpane to the Obligor or Lessee And finally whatsoever shall come to the Executor See inâ—â—â— in Numb after the death of the Testator in the right of his Executorship may be devised by the last Will and Testament of the Testator 21. Devise ofâ— the things a man hath in Iointure wiâ—h another Perk. Sect. 52. Litt. Sect. 287. Doct. St. 167. The goods and chattels that a man hath joyntly with another are not devisable And therefore if there be two Iointenants of goods or chattels as where such things are given to two or two do buy such things together and one of them devise his part of the things to a stranger this Devise is void Insomuch that if in this case the Testator make the other Ioyntenant his Executor the Will as to this is void and he shall not be charged as Executor for those goods but he shall have them altogether by right of survivorship 22. The Devise of the things a man hath in anothâ—â—s right Plow 525. B100 Administrator 7. 〈◊〉 Adm. 〈◊〉 goods and chattels that a man hath in anothers right are not devisable and therefore an Executor or Administrator cannot devise the goods and chattels he hath as Executor or Administrator for such a Devise is void Howbeit the Executor may appoint an Executor of the goods of the first Testator which the Administrator cannot do And of the profits that do arise by the goods and chattels the Executor or administrator hath during the time of his Administration he may make disposition The goods and chattels belonging to Colledges and Hospitals may not be devised by the Testaments of the Masters or governours thereof noâ— the goods and chattels belonging Doct. St. lib. 2. c. 39. Perk. Sect. 4â—6 49â— 49â— to other Corporations by the Mayors Bayliffes or Heads thereof * And the goods and chattels that Churchwardens have in the right of the Church are not devisable * Perk. Sect. 560. Doct â—t c. 7. All the chattels reall that a man Husband and wife hath in the right of his wife by her means and all the Obligations that are made to her alone before or during the time of the Coverture and the chattels reall or personall that his wife hath as Executrix to any other are not devisable by the Testament of the husband But all the chattels personall that a man hath by his wife which she hath in her own right and the debts due upon Obligations made to the husband and wife both during the Coverture are devisable by the Testament of the husband 23. Such things as are annexed and incident Devise of things that are incident and annexed to some other thing to a Freehold or inheritance so that it cannot be severed from Perk. Sect. 526. Relw. 88. See before it by him that hath the propertie of them as wainscot and glasse to houses and the like are not devisable but in such cases where the thing it selfe to which it is annexed is devisable 24. The goods and chattels that are another mans are not devisable and therefore Plow Granthams case Câ—o. super Litt. 185. Coo. super Litt. 308 Devise of things that are not the Devisors or belong not unto his Executor if a man give another mans horse it is is a void Devise So if one devise the things that by speciall custome of some places as the heire loomes do belong to the heire this Devise is void for it is not devisable from him 25. If a Bishop have a Ward belonging to his Trin. 13. Ia. Curia B. R. Bishoprick fallen he may devise it but if a Church of his become void in his life time he cannot devise the Presentation If a Parson of a Church have the Advowson in Fee and he devise that his Executors Devise of a Preâ—entation to a Church two or three of them shall present at the next avoydance this is a good Devise 26. All these things before that are devisable Swinb part 7. c. 5. Plow 525. Perk. Sect. 500. when they are devised must be named and devised either by their proper name or otherwise described by some other matter whereby Mistake or error in the 〈◊〉 devised the mind of the Testator may be known and discerned for if he erre and mistaken in the name or substance of the thing devised or it be so incertainly devised and described that it cannot be perceived what he intendeth the Devise is void And therefore if one devise a piece of ground by the name of a Mesuage
this doth not alter the custome but by this all the sonnes shall take If a man devise his land to his wife for life the remainder to â—â—tz 〈◊〉 2. his sonne and the heirs males of his body engendred and for default of such issue the remainder to his next heir male and the heires males of the body of that heire male and after his sonne die without issue living his wife and the Devisor hath issue a daughter who hath issue a sonne in this case and by this Devise it seemes the daughter and not her sonne shall have the land and that in Fee-simple If a man devise his land to his wife for life and after to his own Trin. 9. â—ac Aâ—â—â—dged Curteâ—s case right heirs males and he hath issue three daughters and after his death one of them hath a sonne in this case and by this Devise the next collaterall heire male of the Devisor and not the sonne of the daughter shall have the land If a man have issue two sonnes and a daughter and devise his Dâ—er 122. land to his wife for tenne yeares the remainder to his younger sonne and his heirs and if either of the said two sonnes die without issue of their bodies the remainder to the daughter and her heirs and the younger sonne die in the life time of the father and after the father die in this case and by this Devise the daughter hath a good remainder but it seemes the elder sonne hath first an estate Taile by the intent of the Devisor If a man devise some land to A his eldest daughter and her Dâ—eâ— 330. heires and if she die without issue to T his youngest daughter and her heirs and if she die within 16 years that A shall have her part to her and her heirs and if A marry such a one that T shall have her part to her and her heirs and if T die having no issue that all her part shall goe to M and E his Neâ—ces and if A die without issue that T shall have her part to her and her heires and T after the 16 years doth die without issue in this case the Neeces M and E and not A shall have her part that is dead If land be devised to A for life the remainder to a Monke for Perk. Sect. 5â—6 â—67 life the remainder to I S in Fee by this Devise he in the remainder in Fee shall take presently after the first estate for life ended and if the Devise be to a Monke for life the remainder to I S in Fee by this I S shall take presently If a man devise his land to a womâ—n and her brother and the Dyer 326. heirs of either of their two bodies and for default of issue of the said woman and her brother the remainder to the right heires of the Devisor and after the death oâ— the Devisor the brother dyeth without issue and the sister hath issue and dyeth in this case and by this Devise her issue shall have a moity and no more of the land If one devise two parts of his Land to his four younger sonnes Dyer 304. in Taile and that if the Infant in the wombe of his wife be a sonne that he shall have the fifth part as co-heire with the four and if his five sonnes die without issue that the two parts shall revert and then the Devisor dyeth and after a sonne is born and after he and three of the other sonnes die in this case and by this Devise the Infant shall not take any thing because he is uncapable and the two parts shall not revert to the heire untill the five sons be dead without issue If one devise the Mannor of Dale to the eldest sonne of I S in Adiudged Co. B. M. 36. 37 Eliz. Brownes case Fee and the Mannor of Sale to I D for life the remainder to such of the children of I S as shall be then living and shall have the Mannor of Dale and the eldest sonne of I S after the Testators death doth sell the Mannor of Dale and after I D dyeth in this case and by this Devise none of the children of I S shall have the Mannor of Dale but it shall goe to the heires of the Devisor If one devise his land to the children of I S by this devise the children that I S hath at the time of the Devise or at the most the children that I S hath at the time of the death of the Testator and not any of them that shall bee borne after his death shall take If one have two daughters by divers women and devise a moity of Dyer 34â— his land to his wife for seven yeares and that the elder daughter shall enter into the other moity at her day of marriage and if his wife be with child of a daughter that then she shall have an equall portion with the other sister and the Devisor dyeth and the wife doth enter and hath not a daughter and then the elder daughter doth take a husband and enters upon a moity the younger daughter dies without issue and the seven years expire in this case and by this devise the collaterall heir of the younger daughter shall have the moity of the whole and not the moity of a moity only and that by discent If a man have issue B C and D sonnes and he devise his land Curia B. R. Mich. 20. Iaâ— Next of blood to D his sonne the remainder proximo de sanguine or to the next of blood of the Testator in this case and by this Devise B shall take after the death of D as the next of blood In like manner if the Testator have four daughters and he devise his land to the youngest in Taile the remainder to the next of blood by this Devise the eldest daughter and not all the rest shall have the land And if the Testator have issue B his elder sonne and C his younger son and B have issue D his sonne and B is attainted and dyeth and the Testator deviseth his land to I S for life the remainder to the next of blood of the Testator by this Devise D and not C shall have the land If a man have issue B and C sonnes and D a daughter and devise Broo. Dâ—scent Piâ— 19. 8. Aâ—â— Pl. 4. his land to C for life and after that it shall remaine to the next of blood to his children to the next heirs of the blood of his children and C dyeth and B dyeth without issue and D hath issue a daughter in this case and by this Devise the heires of A shall not take but the next of blood to the children of A which is the daughter of D and his children themselves are excluded and if the sonnes have any issues living they shall take with her by this Devise If the Testator have issue by A his first wife three daughters â—â—â—â—dged Mâ—
devise none of his land in the other Hamlet doth passe If a man make his Will the first day of May and thereby give the Plow 34â— Mannor of Dale to one in Fee and the tenth of May one of the Tenancies escheat and the 20. of May the Devisor dyeth in this case and by this devise it seems the Devisee shall have the Tenancie that doth escheat If one devise his land thus I give my land in Dale to I S and 3. In respect of the estate and time that is devised Fee-simple his heires or to I S in Fee or to I S in Fee-simple or to I S for Litt. Broo. Sect. â—â—3 Perk. Sect. 1. 6. Litt. Sect. 586. â—elw 4â— Coo. super Litt. 19. 20 H. 6. 35. Litt. B100 Sect. 432. 19. H 8. 10. ever or to I S Habendum sibi suis or to I S and his Assignes for ever or thus I give my land to I S to give sell or do therewith at his pleasure by all these and such like devises a Fee-simple estate is made of the thing devised and I S shall have the same to him and his heirs for ever But if land be granted by Deed after this manner I S by this grant in all these cases except onely in the Deed. first case hath onely an estate for life * Fitz Devise 111. And if a man devise his land to I S and say not how long nor for what time by this devise I S hath an estate for life only in the land If a man devise his land to I S and his Assignes without saying Coo. super Litt. 9. Perk. Sect. 57. 239 New Terms of the law tit Devise for ever it is said by some that by this devise I S hath onely an estate for life * Tâ—â—n 2. C. B. R. reply Daniels case Coo. 6. 16. Dyer 126. But the contrary is affirmed elsewhere and that it is a Fee-simple If one devise his land to his wife to dispose thereof at her will and pleasure and to give it to one of her sonnes in this case and by this devise she hath a Fee-simple but it is qualified for she must convey it to one of her children and cannot convey it to another If one devise his land to I S paying 10. l. and use no other words by this devise the Devisee hath the Fee-simple of the land albeit the 10. l. be not the hundredth part of the worth of the land * Adiudge Hill 36. Eliz Co. B. And yet if one devise his land to I S for his life paying 10. l. by this devise I S shall have an estate for life only If one devise land of the value of 50. l. per annum to J S for life the remainder to I D paying 40. l. to W. by this devise J D shall have the Fee simple of the remainder upon condition If one have two sonnes and he devise his land first to his wife and Hill 17. Iac. B. R. adiudged Spiceâ—s case then he saith thus In like manner I will that my sonne A. shall have it after my wives death and if my wife dye before my sonne B then that my sonne A shall pay to B 3. l. by the year during the life of B and also 20. l. to W S. by this devise A shall have the Fee-simple of this land â—f one devise his land thus I will my land to my sonne W for his life and after his death to my sonne T and if my sonne W purchase Câ—â—ia M 18. â—ac B. R. Green ver 〈◊〉 â—us Dewell land as good as that land for my sonne T then that my sonne W shall sell the land devised to my sonne T as his own and I will that my sonne W shall pay to his Sisters â—0 l. by 20. s. a year in this case and by this devise W hath a Fee-simple for power to sell giveth by implication an estate in Fee-simple and it is paying also c. If one devise land to his wife and her heires and if the heire put her out that she shall have other land by this devise she hath the Fee-simple Pasch 14. Iac. B. R. Curia of the first land and is not abridged by the latter words If one devise his land thus I give White Acre to my eldest sonne and his heires for his part Item Black Acre to my youngest sonne Trin. 30. Eliz. for his part by this devise the younger sonne shall have the Fee-simple of Black Acre So if I give White Acre to I S Item Black Acre to I S and his heires by this devise I S shall have the Fee-simple of White Acre also If one give land to his wife for life the remainder to his sonne and Perk. Sect. 566. the heires males of his body and for want of such issue the remainder to the next heire male of the Donor and the heires males of his body it seems by this devise that the next heire male of the sonne hath a Fee-simple If one devise his land thus I give my land in Dale to I S and to his or to the heires males or heires females of his body or of his Coo. super Lit. 21. 26. â—ee-taile body begotten or to I S and his issues male or his issues female or to I S and the heires males of his body begotten on M or to I S and E his wife and the heires males or heires females of their two bodies begotten or to I S and his heires if he shall have any heires of his body else that the land shall revert or to I S and his heires if he have any issue of his body or to I S and the right heires males of his body or to I S and his heires provided that if he dye without heires of his body that the land shall revert by all these and such like devises an estate taile is made of the thing devised and I S the Devisee shall have the same accordingly If one devise his land thus I give my land in Dale to I S et somini Coo. super Litt. 9. Broâ— tit taile 21. Coo. super Lit. 20. 6. 1â— suo by this devise I S hath an estate taile But if he say I give my Deed. land in Dale to I S et sanguini suo it is said by this devise I S hath the Fee-simple of the land If one devise his land to I S â—t exitibus vel prolâ—bus de corpore suo by this devise if I S have no children at the time it seems he hath an estate taile but by such a limitation by deed is made onely an estate for life If one devise his land thus I give my land in Dale to I S for life the remainder to I D and E his wife and their children or to I D and E his wife and their men children or to I D and E his wife and their issues by these
devises if the husband and wife have no children at the time of the devise is created an estate taile and if they have any children at the time of the devise then hereby is created an estate for all their lives onely in joyntenancie And if land be devised to A for life the remainder to B and the heires of his body the remainder to I S and his wife and after to their children by this devise I S and his wife have estates for their lives onely and their children after them estates for their lives joyntly And albeit they have no children at the time yet every child they shall have after may take by way of remainder And so also it seems is the law upon such a limitation by Deed Deed. If lands be devised to I S and his heires males or his heires females without saying of his body by this devise I S hath Deed Litt. Sect. 31. 9. H. 6. 25. 27. H. 8. 27. an estate taile But if such a limitation be by deed it is a Fee-simple If one have two sonnes and devise White Acre to his eldest sonne and his heires and Black acre to his youngest sonne and his heires Hill 22. Iac. B. R. Daniels case and if either of them dye without issue then that the other shall be his heire by this devise either of them hath an estate taile and no Fee-simple If one have land in Kent in W S and T and have one male child Adiudge M. 9. Iac. Wallops â—ase and a daughter and his brother hath three children B C and D and he devise his land thus Item I give my land in Kent to my male childe and his heires and if he dye without heires of his body that that the land in W shall go to B and his heires Item I will my land in S to C and his heires and my land in T to D and his heires in this case and by this devise the male child of the Devisor hath an estate taile in all the lands and after his death without heires it shall remaine according to the Will So that if one devise his land to his eldest sonne and his heires and if he dye without heires of his body that it shall remain to his youngest sonne and his heires by this devise the eldest sonne hath an estate taile and the youngest sonne the Fee-simple If one devise his land to his sonne W and if he marry and have any issue male begotten of the body of his wife then that issue to Coo. 9. 127 have it and if he have no issue male then to others in remainder by this devise it seems W hath an estate taile to him and the issues male begotten on the body of his wife If one devise White Acre to I S and the heirs of his body and then after saith thus and I will that I D shall have Black Acre in the same Perk. Sect. 561. 20. H. 6. 36. manner that I S hath White Acre by this devise I D hath an estate tail in Black Acre as I S hath in White Acre Et sic de similibus * Tr. 30. Eli. And if one devise White Acre to I S and then say Item Black Acre to I S and the heires of his body by this devise he hath an estate taile in both Acres If one devise his land to his wife for yeares the remainder to his younger sonne and his heires and if either of his two sonnes dye Dyer 122. without issue c. that it shall remaine to his daughter and her heires and the younger sonne dye in the life time of the Father and after the Father dyeth it seemeth by this devise the elder son shall have the land in taile If one devise his land to his wife for life and after to his sonne Adiudge Tri. 7. Iac. Co. B. Robinsons case and if his sonne dye without issue having no sonne or having no male then that it shall goe to another by this devise the sonne hath an Estate taile to him and the heires males of his body If lands be given to a man and woman unmarried and the heires of their two bodies or to the husband of A and wife of B and the Coo. super Litt. 20. 26. Plow 35. heires of their two bodies by these Devises are made estates in Taile If a man devise White acre to his three brothers and Black acre to C his brother so as he pay 10l to I S and otherwise that it shall remain Dyer 333. to the house provided that the same lands be not sold but go unto the next of name and blood that are males if it may be it seemes that by this devise C hath an estate tail in black acre and that if he die without issue it shall go to the three other brothers and their heires males in taile one after another and that white acre also is so entailed in every of their parts For the words shall remaine to the house shall be construed to the most worthy of the Family and the words that are males shall be construed in the future tense If land be devised to I S and the heires of his body and that if he die that it shall remain to I D by this Devise I S hath an estate Adiudg 14. Eliz. Coo. B. Trin. 9. Iac. B. R. Taile and the latter words do not qualify the former but I D must attend his death without heires of his body before he shall have the land If land be devised to I S and the heirs males of his body and if it Dyer 171. happen that he dye without heire of his body that it shall go to H and his heires by this Devise I S hath an estate to him and the heires males of his body and the subsequent words do not alter nor enlarge the estate If land be devised to I S and E his wife and to the heires of Coo. super Litt. 26. the body of the Survivor of them by this Devise the Survivor shall have a generall estate Taile If land be devised to I S and the heires he shall have by A his wife by this Devise I S hath a Fee Taile and not a Fee simple as Coo. super Litt. 26. Deed. he hath in case of such a limitation by deed If land be devised to I S and to the heires of the body of such a woman by this Devise I S hath an estate Taile and begotten Coo. super Litt. 26. shall be intended begotten by him If one devise land to his sonne and his heires and that if his sonne die within the age of 21 yeares or without issue that the land shall Adiudg M. 37. 38 Eliz. Sale versus Geâ—rard remain over and the son dieth within age having issue in this case and by this Devise the sonne hath an estate Taile and or in this place shall be taken for and If land
bee devised to a man and his wife and to one heire of their body and the heire of the body of that heire by this Devise Coo. super Litt. 22. Deed. an estate Taile is made in a Will as well as in a Deed. If a man devise his land thus I give White acre to A my sonne M. 18. Iac. B R. Gilberts case and his heires Black acre to B my sonne and his heires and Green acre to C my sonne and his heires provided that if all my said sons die without issue of their bodies that then all my said lands shall goe to M my wife and her heires by this Devise they have all of them estates in Taile of their land and as it seems crosse remainders to either of them of the land of each other If one devise his land thus I give my land in Dale to I S and if Coâ— 9. 128. he die without issue male of his body then that it shall remain over to I D by this Devise I S hath an estate Taile If a man hath issue three sonnes and devise his land thus viz. one part to two of his sonnes in Taile and another part to his third Litt. Broo. Sect. 4â—â— Broo. Devise 38. Done 44. sonne in Taile and that neither of them shall sell his part but that either of them shall be heire to other in this case and by this Devise either of them hath an estate Taile and if one of them dye without issue his part shall not revert to the eldest but shall remain to the other sonne for it is an implied remainder If there be husband and wife and they have issue a sonne and a Coo. super Litt. 26. daughter and the husband die and land is devised to the wife and the heires of her late husband on her body begotten in this case and by this Devise the wife hath only an estate for life the sonne an estate in Taile and so also the daughter in case he die without issue If one devise to I S that if he and his heires of his body be not For life Coo. supâ—r Litt. 147. 8. 85. paid 20l. rent yearely he and they shall distraine c. by this Devise I S hath an estate taile of this rent But if the Devise be that if I S be not paid 20l. yearly he shall distrain c. by this Devise I S hath only an estate for life So if one devise a rent of 10 l. out of his land to be paid quarterly and say not how long the rent shall continue this is but an estate for life If one devise his land thus I give my land in Dale to I S for his life or to I S without any more words or to I S and his Fitz. Devise 16. Coo. 6. 16. Perk. Sect. 577. heire in the singular number or I S and his children and I S hath children at the time of the Devise or to I S and his successors I S being a naturall person by all these and such like Devises I S hath only an estate for life in the thing devised * Mich. 13. Ia. B. R. Dyer sect 307. But if the Testator have only a Terme of yeares in the land whereof the Devise is made and devise this land to I S and doth not say for what time it seemes that by this Devise the whole Terme is devised unlesse the intent doth appeare to be otherwise And if one devise land whereof a man is seised in Fee to I S paying 10l to I D by this Devise albeit there be no estate expressed yet I S hath the Fee-simple of the land in respect of the paiment of See before Litt. Broo. Sect. 406. 125. the money But if the intent of the Testator appeare to be that I S shall have the land but for his life contra for there the consideraration will not alter the estate expressed upon the gift If land be devised thus I give my land in Dale to I S and his Deed assignes without more words by this Devise is held to be given Coo. super Litt. 9. 4. 29. no more but an estate for life by construction upon a Will as it is upon a Deed. And yet in the New Termes of the Law tit Devise the contraray is affirmed Ideo quâ—re If one devise thus I will that I S shall have and occupy my land Pasche 9. Iac Newmans case in Dale and say not how long by this Devise I S shall have the land for his life * Dyer 342. But if I devise that I S shall enter into my land and say no more by this Devise I S hath no estate at all but power to enter into the land only If a man have a sonne and a daughter and dieth and lands are Coo. super Litt. 2â— devised to the daughter and the heires females of the body of the Father by this Devise the daughter hath only an estate for her life for there is no such person for she is not heire If one devise his land thus I give my land in Dale to I S for Coo. 1. 6â— his life and after to the next right heire of I S in the singular number and to his right heires for ever by this devise I S hath only an estate for life So if one devise land to I S for life and after to the next heire male of I S and to the heires males of the body of such next heire male by this devise I S hath an estate for life only but if it be thus I give my land in Dale to I S for his life and after to the heires or to the right heires of I S by these devises I S hath the Fee-simple of the land And if it be to I S for life and after to the heires males of I S by this I S hath an estate Taile If one devise land to I S and E his wife and after their decease or the remainder to their children by this devise whether they Coo. 6. 16â— have or have not children at the time I S and E his wife have estates for their lives only If one devise a Moity of his land to his wife for life and the other Curiaâ— Ia. Co. B. Moity to his second sonne and after by another clause doth devise it all to his sonne after the death of his wife by this Devise the sonne hath only an estate for life after the wives death and no more If one devise his land to I S in Fee after the death of I B being Broo. Devise 48. 52. Litt. Broo. 107. 13 H. 7. 13. New termes of the Law tit Devise Plow 158. 414. 521. By Implication his sonne and heire apparant by this Devise I B hath an estate for ife by implication and untill the Devise take effect the law gives it to him by discent And so also it seemes the law is where
it when they will if they be not hastned therunto by order of Court and when they doe sell they must all joyne in the sale by the Common-Law or otherwise the sale had not been good and therefore if one or more of them had dyed before the sale they that had survived or their Executos could never have sold it by this authority so likewise if any of the Executors had refused the charge of the Will the land could not have been sold by the rest unlesse the words of the Will had been that his Executors or some of them should sell it for in that case some of them even by the Common-Law it selfe might have sold and now also by the Statute of 21 H. 8. cap 4. some of them may sell it without the rest as if one give his land to A for life and that after his decease it shall be sold by his Executors and make foure Executors and one of them die during the life of A and then A dyeth in this case the other three Executors may sell So if one give his land in Taile and that if the Donee die without issue that the lands shall be sold by his sonnes-in-law and he have then five sonnes-in-law and one of them die in the life time of the Donee and after the Donee die without issue in this case the other foure may sell the land and the sale made thereof is good 〈◊〉 And yet if the words of the Will be That it shall be sold by A B and C his Executors or his sonnes-in-law in this case if one of them die it cannot be sold by the rest but in the last case before where the Devise is I give my land to my Executors to be sold c. the Executors have an interest in the land and an authority about the land also and therefore in this case the discent is prevented and the Executors shall keep it â—â—â—l the sale neither will any diâ—â—eisin fine recovery or Feoffment by the heir prejudice their interest but that they may sell it when they will but they must sell in time convenient or otherwise the heir may enter and put them out by a condition in Law that is annexed to the interest or perhaps the heir may tender to them the worth of the land and if they refuse to accept it he may enter upon them and out them and it seemes in this case the meane profits untill the sale is no Assets but Assâ—â—â— the money made upon the sale shall be Assets in their hand and in this case albeit one or more of the Executors die or refuse yet the rest may sell it even by the Common-Law it selfe and so also by construction upon the same Statute for the estate surviveth But it seemes they not may sell to him that doth refuse neither may they in either case transferre their power to sell to any other nor keep the land themselves and pay so much of their own money as the land is worth If one deviseth by his Will that his land shall be sold to pay his debts and say not by whom in this case it shall be sold by his Peâ—k Sect. 5â—7 Dâ—er 〈◊〉 2â—â— Executors and if one devise all his land except one Acre which he doth appoint to pay his debts by this Devise his Executors or the survivor of them may sell it but if one say by his Will that I S shall have â—am gubernationem puerorum meorum quam the disposing letting and setting of my lands by this Devise I S hath not power given to him to sell the land If one devise that his land shall be sold after the death of his wife by his Executors with the assent of I S and make his wife and Dyer 219. a stranger his Executors and die and after I S die in this case the land cannot be sold for the authority is determined If one devise that his Executors shall sell the land and with Dyer 15â—â— 152. the money comming or made of it shall pay such and such Legacies or sums of mâ—ney in particular to such and such persons by name this is not a Legacie for which a Suit lyeth in a Court Christian but for this every one that is to have portion may have accompt against the Executors after the sale If one give lands to another to give them againe to the children of the Testator or to dispose them at the Will of the Devisees to Trin. 2. Car. B. R. some of the children of the Devisor in these cases the Devisees must dispose it accordingly and cannot give it to any other And if Coo. 6. 16. one give lands to others to the intent that with the profits thereof they shall educate children or pay such sums of money or the c. in this case the Devisees must doe accordingly or they may bee compelled thereunto And in all cases of Devises of lands to Executors to sell it is Coo. super Lit. 112. 113. wisdome to make it certaine i. e. that the Executors or the survivor of them or such or so many of them as take upon them the probate of the Will if his meaning be so shall sell it And it is better to give an Authority then an estate unlesse his meaning be that they shall take the profits of the land untill the sale and if he doe so then it is necessary that he appoint that the meane profits untill the sale shall be Assets in their hands for otherwise it shall not be so The same words that in a Deed will make a condition and Dâ—er 33. 3â— 126. Coo. super Litâ— 236. S. 〈◊〉 condition 〈◊〉 Devise upon condition and what words in a Wil shall be construed in the sense of a condition and what not the thing granted thereby to be conditionall will make a condition in a Will anâ— the thing given thereby to be conditionall And therefore these words Provided on condition So that If and the like will make a condition in a Will So that if one devise land to I S on condition or So that or If or provided that he doe bring up his eldest sonne or pay his wife 20 l. a yeare for her life or the like by these Devises the estate is made conditionall Also other words that being used in a Deed will not make a condition yet being used in a Will make a condition and the estate made by the Devise to be conditionall And therefore if a man devise his land to his Executors to be sold or devise his land to them or others to pay 20 l. to I S or paying 20 l. to I S in these cases and by these Devises the estates are made conditionall and of these conditions Dyer 33. 34â— 126 128. regularly the heire and not a stranger shall take advantage So as if one devise land to another and his heirs provided that â—e pay 10l to I S otherwise that the land shall
remaine to I D and his hâ—iâ—â—s in this case if the Devisee doe not pay the money I D shall not take advantage of it nor have the land according to the Devise but the heir of the Devisor shall enter and have the land and put out the Devisee And if one devise his land to I S for life on condition to pay 20 l. to I D and after to I D in Taile in this caâ— if I S doe not pay the 20l. it seemes the heire shall enter and hold the land during the life of I S and that I D shall not have it till then And in cases of Devises of goods or chattels other words will Swinb 136 make a Devise conditionall in divers cases as when as I give to to I S 10 l. when he shall be married and whiles as I give to I S â—0 〈◊〉 whiles he shall abide with my children which is as much as if he abide with my children and which as I give him 〈◊〉 which shall marry my daughter and the ablative Case absolute as my sonne being dead I give to I S 20 l. And of all these conditions regularly the Executor and no other shall take advantage But if the condition bee such for the matter and substance of it as is impossible unlawfull or the like there perhaps these words may not make a condition nor the thing devised conditionall but rather make the whole sentence void Whereof read Swinb part 4. Sect. 5. at large If one devise his land to his daughter and heir apparant in Fee-simple 11. Where a Devise void or voidable in his exception may become good by matter ex post facto or not â—itz tit Asâ—â—se 27. this Devise is void yet if in this case the wife of the Devisor be privily with child of a sonne which is born after his death now is the Devise become good for now shee is not heir to her father If a woman that hath a husband devise her land by Will during Plow 344. the Coverture and after her husbands death when she is sole she do publish and approve it in this case and by this meanes the Devise is become good but if she make and publish it during the Coverture and after her husband die and she become sole this accident without any more will not make the devise good the same Law is of the Devise of good and chattels If an Infant within age devise his lands or goods and publish his Plow 344. Will and after he comes to bee of full age he doth publish and approve it againe in this case and by this meanes the Devise is become good but if the Infant live to be of full age and doe not publish and approve it contrâ— If a Legacy of goods or chattels be given on condition to a man Swinb 340. uncapable and before the condition is extant he doth become capable in this case and by this meanes the Devise is become good See before at Numb 6. more of this matter A Devise that hath a good beginning is sometimes avoided and 12. Where 〈◊〉 Devise good in his inception shall or may become void by matter ex post facto or not Liâ—â— 16â— Coo super 〈◊〉 112. Plow 540. 541. Coo. 8. 〈◊〉 33. overthrown by subsequent matter in the same Will and sometimes by subsequent matter in another Will and sometimes by some other accident ex post facto For if a man make a subsequent or latter Devise either in the same or in another Will so contrary and repugnant to the former that both cannot stand together this doth overthrow tâ—e former And therefore if a man doe give White Acre to I S in Fee or his white horse to I S and after by the same or another Will doth give White Acre to I D in Fee or his white By a subsequent repugnant Will horse to I D these latter Devises doâ— overthrow the former cum duo inâ—â—r se pugnantia reperiuntur in testamento ultimum ratum est And as a latter Will doth overthrow the foâ—mer so the latter part of a Will doth overthrow the former part of the same Will But if the Devisees be such as they may stand both together and are not directly repugnant nor doâ— fight one against another there the latter shall not overthrow the former but both shall be received And therefore if one devise his land to I S and his heires and See before after by the same Will devise a Rent out of the same land to I D and his heires or è contra So if one devise White acre to A for life and afterwards give the same acre to B in Fee in this case the one may have it for his life and the other may have the Fee-simple afterwards If one devise his land to his sonne and heire in Fee-simple or Plow 〈◊〉 Perk. Sect. 569. Litt. Bâ—â—â— 453. Kitchin 127. Dyer 317. 350. devise it to a stranger for yeares the remainder to his sonne and heire By a waiving of the estate devised in Fee-simple and the heire after the death of the Devisor doth as he may waive the estate given him by the Devise and claime the the land by discent in this case and by this meanes the Devise is become void But if the Devise be to the sonne and heire in Taile the remainder to a stranger there he cannot waive the Devise and take it in any other manner And so if a man have only two daughters who are his heire and he devise his land to them or have Gavelkind land and dâ—vise it to all his sonnes they may not waive these Devises and take by discent for by Devise they shall take as â—ointenants who otherwise by discent shall take as Parciners If one devise his land to another in Fee simple Fee taile for life Litt. 〈◊〉 Sect. 482. Perk. Sect. 569. Dyeâ— 6â— Coo. 9 140. Ploâ— 543. â—4â— â—r yeares and the Devisee after the death of the Testator doth refuse and waive the estate devised to him in this case and by this meanes the Devise is become void And it seemes a verball waiver is sufficient in this case So if one give goods or chattels to another and the Devisee refuse it by this meanes the Devise is become void and any waiver or refusall will suffice in this case for a man shall not bee compelled Nolens volens to take a thing devised to him If a woman sole devise her lands or goods by Will and after take Plow 34â— a husband and die during the Coverture by this meanes the Devise is become void And yet if she survive her husband and die unmarried now is the Devise become good againe If one devise his land to I S and his heires and afterwards I S Plow 60 34â— 34â— 34â— die living the Testator by this meanes the Devise is become voyd And in this case no verball declaration of
the Testator that the heires of I S shall have it will help for albeit a Devise of land in writing may be revoked by a verball subsequent declaration or by any act crossing or controlling that Devise yet a Devise becomming vold by that meanes cannot be made good by any such verball decâ—aratioâ— subsequent to the same Countermaund So if one give any goods or chattels to I S and he die before the Testator in this case and Se◠〈◊〉 Numb 14. by this meanes the Devise is become void and the Executor of I 〈◊〉 shall not have it And yet if a Devise be of land to A for life the remainder to B in Taile and A die before the Testator it seems Perk. Sect. 567. 568. the Devise of the remainder doth continue good notwithstanding And if one devise land or goods to the wife of 〈◊〉 S. and afterwards her husband dieâ—n and she marry with another man and then Plow 3â—â— the Devisor dieth this is a good devise notwithstanding and not avoided by either of these Accidents If one devise a Terme that he hath to A for life the remainder to such persons as shall be occupiers of White Acre at the death of A Per Iustice Iones M. 9. Iac Co. B. this Devise albeit in his beginning it be good yet if the Devisor die before A it seemes now to become void for he that will take by way of Executory devise must take as an immediate purchasor and be capable and knowne at the time of the death of the Testator If I give to I S 20l if he marry my daughter and she dye before he marry her in this case and by this meanes the Legacy is become Swinb 356. void If I give a debt owing to me to I S and afterwards I receive Perk. Sect. or release the debt hereby the devise is become void If a man make a Will and give Legacies and appoint one or more Litt. Broo. Sect. 300. his Executor or Executors and he or they after his death all refuse to take upon them the Administration yet in this case the Legacies remaine good and are not become void And in this case the course is to grant the Administration of the goods to him to whom it doth belong and to annex the Will to the Administration and then the Administrator is to performe the Will as the Executor ought to do It is held also that a Legacy of goods or chattels may become void by the injurious dealing of the Legatee against the Testator after the Legacy given whereof read Swinb part 7. Sect. 22. And when the thing devised is dead or spoiled howsoever by Swinb 357. this meaneâ— the Devise is not become void yet it looseth his effect and is as if it were void See more supra at Numb 5. In all these cases when the disposition of the Legacy is pure and 〈◊〉 Where a Legacy shall goe to the Executor when the Legateâ— dâ—th die before he dâ—th receive it And where 〈◊〉 no time is set for the performing of it or there is a set time for Swinb 350. â—55 35â— the doing of it and the Legatee die before the time and where the disposition of the Legacy is conditionall and a time set for the doing of it if the Legatee live till that time or the condition be performed in all these cases the Executor or Administrator of the Legatee shall have the Legacy and the same remedy to recover it that the Legatee himselfe had But if the Legatee die before the condition be performed contra And yet if in that case the Testators mind shall appeare to be that the Executor or Administrator of the Legatee shall have it or the condition be to be performed by another and there be no default in the Legatee or if the disposition be modall or the Legacy that was at first upon condition be afterwards repeated without condition or it be referred to a condition to be afterwards set downe and none is set downe in these cases the Legacy is not lost by the death of the Legatee but shall go to his Executor or Administrator as for Example If one devise 20l. to W S to be paid within 4 yeares after the death of the Testator and Broo. Devise 27. 45. Swinb 350. 355. Dyer 59. Swinb 358. 356. â—low 345. the Legatee die before the 4 yeares expired in this case the Executor or Administrator after the 4 yeares expired shall recover the Legacy If one give to W S 20l. when he cometh to 21 yeares of age and he die before he come to the age of 21 yeares in this case his Executor shall not have the Legacy But if the Devise be thus I give to W S 20l. and I will that it shall be paid him at his age of 21 yeares and he die before he come to the age of 21 yeares in this case his Executor shall recover the Legacy So iâ— one give to I S 20l. when he shall be married and he die before marriage in this case his Executor shall not have it But if one devise thus I give to W S 20l. towards his marriage and he dye unmarried in this case the Executor shall have and recover the Legacy So if one do give to W S 20l. when the Executor of the Testator shall dye in this case if W S die before the Executor the Executor or Administrator of W S shall not have the Legacy If one devise goods or chattels to I S and I â— die before the Testator the Executor or Administrator of I S shall not have this Legacy When any chattell reall or personall is given to an Executor by a Plow 519. 520. 543. Coo. 10. 47. 2. 37. 8. 96. Dyer 277. 367. Perk. Sect. 574. 573. 575. Will the Executor hath an election given him by the Law to have 14. Where an Executor upon a Deâ—iâ—e to him hath an Election to have the thing devised as Executor or as Legaâ—ee And when he shall have it in the one righâ— or iâ— the other and what act shall make a declaration of his Election and take it in the one right or in the other viz. as Executor or as Legatee and by his speciall entry or seising of the thing or some speciall declaration his election is to be made And if the Executor doe enter generally as most doe and never make any declaration which way or by which right he will have it as most Executors use to do he shall be said to have it and the Law shall Adjudge it in him as Executor and not as Legatee But if by any subsequent words or deeds he shall declare his mind to be otherwiâ—e he shall be in as a Legatee ab initio And yet if once he doe any such act as is proper to an Executor this is a disagreement to the Legacy ab initio and after that it seems he cannot take as Legatee but must take as
Executor And if one Executor of many to whom a terme of yeares of land is devised occupy the same alone and the rest intermeddâ—e not with the profits thereof albeit he make no declaration it is said this is a good declaration of his election to have it as Legatee But if a terme of yeares be given to the wife of I S and I S be made Executor and he enter generally and after makes his Testament and never speakes of this terme this is 〈◊〉 declaration of his Election to have it as Legatee neither shall the terme be so deemed in him but as Executor But in these cases this must be heeded that howsoever the Executor hath power to take as Executor or as Legatee yet he cannot take as Legatee to prejudice Creditors in their debts but the same things they so take as a Legacy if there be not Assets enough besides shall be said to be Assets in their hands as to the Creditor for the satisfaction and paiment of their debts If a man devise that after his Debts and Legacies paid his wife shall have all the residue of his goods and chattels to distribute for Dyer 331. his Sarle c. and make his wife his Executor in this case it is said she hath no election but she must take as Executor and cannot take as Legatee When a Devise of goods or chattels is well made the assent of 1â— Assent Quid. the Executor is necessary to the perfection thereof for untill then the Legatee may not have or meddle with the thing devised And this Assent is defined to be the agrement of an Executor or Administrator Coo. 10. â—7 52. that a Legatee shall have the thing bequeathed unto him And it is either expresse i. e. when the Executor or Administrator doth by expresse words agree to the Devise Or implied i. e. when the Executor doth not by words but by some overâ— act declare his assent that the Legatee shall have the thing devised unto him This agreement of the Executor or Administrator is not needfull in the case of Devise of land for if a man be seised of land 16. Where aâ—â— Assent is necessary or not And where a man may enter into the lands or take the goods or chattels devised unto him without the assent or delivery of the Executor And what shall be said a sufficienâ— Assent to execuâ—e a Legacy or not in Fee-simple and deviseth to another in Fee-simple fee-Fee-taile Coo. super Litt. 111. Perk. Sect. 576. 578. 579. Swinb 134. 135. for terme of life or yeares in these cases the Devisee may enter into the land devised without any leave of the Executor or Administrator and in truth in these cases the Free-hold or estate is said to be in the Devisee before his entry and therefore if the heire enter first the Devisee may enter upon him and put him out And in case where land is devised by the custome of a place if the heire enter first and keep the Devisee out the Devisee may have a writ of Ex gravi querela against him for his relief and this writ is incident to that custome But if a Devisee enter first into the land devised unto him and then the heire of the Devisor enter upoâ— him then the Devisee may take his remedy at the Common law as in other cases And with these things the Ordinary Executor or Administrator is not to intermeddle But regularly a devisee cannot nor may not have or take any chattel real or personall Perk. Sect. 570. Coo. super Litt. 211. Plow 525. 20. Ed. 4. 9 devised to him without the agreement or delivery of the Executor or Administrator And by this assent if the Devise be good for otherwise an assent will not make it good the Devise is perfected and the Legacy executed And yet if the Legatee have the thing devised in his own hands or if there be a speciall clause in the Will Swinb 353. Broo. tit devise 6. 30. giving him authority to take it himselfe or it be a Legacy to good and godly uses or the thing given be like to perish on the ground being corne or the like and there be assets besides to pay all the debts in these cases perhaps the Assent of the Executor or Administrator may not be necessary but the Legatee may take the thing devised without his agreement And if a Legacy be given to one of the Executors themselves he may take it without any assent of his Perk. Sect. 5â—â— Co-executors and that before Administration also if he will If there be many Executors the assent of any one of them is sufficient and if there be but one and he be dead the assent of his executor is sufficient or if he die intestate the assent of the Administrator de bonis non administratis of the first Testator is sufficient or the Legatee himselfe in this case where the Executor dieth intestate or where he doth refuse to take upon him the Administration may take Administration himselfe and by publique declaration assent to his own Legacy And if a man be Executor and Legatee both he may assent to and take the Legacy and yet waive the Executorship and this assent is good And therefore if the Legatee of a term of years be made Executor and he enter and claim and occupy the land Dyer 372 367. by force of the Devise and dye before Probate of the Will the Executor of the Legatee and not the Ordinary shall have this term and yet it seems the Executor may not do this in prejudice of a Creditor to hinder him of his debt Any agreement in word or deed will suffice to make aâ— assent and Coo. 4. 2â— execute a Devise Let Executors take hâ—ed therefore for if an Executor A Câ—vâ—aâ— for Executors do but agree that the Legatee of a term of years of land shall take the profits thereof and that but for a time only or say to the Legatee God send you joy of it or I intend you shall have it according to the Devise or the like this is a good assent to execute the Legacy And if the Executor agree that the Legatee and a â—â—â—anger together shall take the profits of the land or the thing devised this is a good assent And it seemes that whatsoever verball agreement will amount to an Atturnment may make an assent to a Legacy See Atturnment If therefore the Executor agree to the Legacy upon certain Termes and conditions this is agreed to be a good and absolute assent Per 2 Iustices M. 37. 38. Eliz. B. R. Coo. 4 28 to the Legacy If a terme of years be given to the wife of the Testator during the minority of his eldest sonne to the intent that she with the profits Plow 5â—0 thereof shall breed up his children the remainder of the â—ame term to the same eldest sonne and she is made Executrix and she entâ—r
And the executor or administrator of the Lord shall have Fines assessed upon the Tenants upon their admittances in the Lords time c Stat. 32. H. 8. cap. 37. Coo. 4. 48. Dyeâ— 575. And if I make a Fcoffment in Fee gift in tail or lease for life rendring Rent and the rent is behind and then I dye in this case the arâ—erages of Rent due to me in my life time shall go to my executor or administrator in the nature of a chattell So if a Rent be granted out of land to me in Fee-simple Fee-tail for life or years and it be not paid to me in my life time these arrerages shall go to my executor or administrator and not to any other d â— N. B. 120. L. And so also if a Parson have an annuity in Fee in the right of his Church and it be behind and the Parson dye in this case the executor or administrator not the successor of the Parson shall have the arrerages e Dyer 275. And if I be seised of land and possessed of a stock of cattell and let it to another for years and he covenant by the Lease to pay me and my wife our heirs and assignes 100l by the year during the term in this case after my death and my wives surviving me her executor or administrator and not my heir shall have this payment f Coo. 4. 63. And if one seised of land in Fee make a Feoffment of it to me excepting the trees and after grant me the trees for years or if he make me a Lease of the land first for years and after doth grant me the trees for a number of years to begin after the end of the term of the land in both these cases I have the trees in the nature of a chattell and if I dye my executor or administrator shall have them g Dyer 283. 34 H. 6. 27. And if a man grant to me the next Presentation to the Church of D in this case if I dye my executor or administrator shall have it as a chattell h See supra at Numb 7. And my wife shall have so much of her wearing apparell as is necessary and convenient for one in her estate and condition and therefore that shall not go to my executor But so much of her wearing apparell as she hath superfluous and more then necessary for her shall go to my executor or administrator after my death And the charters and evidences that do concern any of my chattels which my Broo. chatâ—els 12. executor or administrator is to have shall go with the same chattels So also any Charters whatsoever if they be pledged to me for money shall go to my executor or administrator untill the money be paid But otherwise those deeds and evidences that do belong to the heir as incident to the Inheritance shall not go to my executor or administrator after my death But matters of trust and such things as are personall as offices of trust wardships by reason of a Tenure in Socage or Jure naturâ— or the like shall not go to the executor or administrator after the death oâ— him that hath them So an Plow 29â— Coo. 3. 39. 9. 99. executor or administrator shall not have the grasse and trees growing on the ground no more then the soile or ground it selfe whereon they grow So an executor or administrator shall not have the Incidents of a house as glasse doores wainscot and the like no Kelw. 118. See before at Numb 7. more then the house it selfe nor pales wals stauks fish in Ponds Deere or Conies in Parkes Pigeons in Pigeon houses or the like If a Lease for yeares of land be granted to me and my heires Secondly iâ— respect of the case or to me and my successors and I dye my executor or administrator Coo. 10. â—7 Litt. Sect. â—40 Fitz. Accompt 56 F. N. B. â—20 and not my heire shall have this terme The same law is if a wardship or the next advowson of a Church be granted unto me and my heires or if a Covenant or an Obligation be made to me and my heires for in all these cases this is still a chattell in me that shall go to my executor or administrator and hee onely shall take advantage by it And if my heire or successor happen to get the Deed the executor or administrator may recover it from him And if a Lease be made to me for 20 years without naming my executors or administrators or assignes in the Lease in this case if I dye my executor or administrator notwithstanding shall have it during the terme h Coo. super Litt. 46. And if a Lease for years be made New termes of the Law tit assignes to a Bishop and his successors and he dye his executor or admistrator not his successor shall have it And if a man be possessed of a terme of yeares of land and grant it by deed or give it by Will to me and my heires or to me and my heires males or devise Coo. 895. 10. 87. Plow 524. it by Will to A for life the remainder to me and my heires in these cases I shall have these terms of years as chattels and after my death my executor or administrator shall have them h Litt. Sect. 740. And if a man grant a rent out of his land to me and my heires for 20 yeares and I dye my executor or administrator not my heire shall have this rent i M. 7. Ia. Co. B. Wats case Litt. Sect. 739. And if a rent bee granted to me my heires and executors during the life of I S and for one halfe yeare after and I dye in this case the half yeares rent shall goe to my executor or administrator and not to my heire And if I be seised Dyer 5. of land in Fee and make a Lease for years of it rendring rent and then devise this rent to a stranger and the devisee dye in this case his executor or administrator shall have it And if Lessee for life make a Lease for yeares absolutely this in Law is a Lease for so Coo. 7. 12. many yeares if the life so long live and shall go to the executor or administrator after his death If I have a box chest or trunk wherein my writings that doe Broo. Executors 145. 9â— Fitz. Executors 111. concern my inheritance do lie and the same is open and not sealed or locked in this case my Executor shall have it but if it be locked or sealed contra for then it shall goe to him that is to have the writings as incident thereunto And yet if there be any money plate or any other such like thing in the chest also my Executor shall have that thing The Incidents of a house as glasse-windowes annexed with Coo 4. 63. 21 H. 9. 26â— nailes or otherwise to the windowes the wainscot fixed by nailes skrewes or irons put
need help of this Statute Also uses that are against the rules of the Common-Law shall not be executed by this Statute And therefore if a Feoffment be made to the use of A for life and after to the use of every person that shall be his heir one after another for term of his life So if one make a Feoffment to the use of another in Taile with divers remainders over with a previso that neither of them shall discontinue or alien c. these uses shall not be executed because these limitations are wholy void and in these cases it seemes there is no remedy to be had in Chancery against the Feoffees So that out of all this appeareth that some uses are executed presently as uses in esse and some are executed by matter ex post facto if they be according to Law and come in esse in due time but if they be uses invented and limitted in a new manner and not according to the ancient Common-Law they are altogether void and extinguished and abolished by this Statute And where lands are conveyed to others in trust after this or the like manner viz. that the Feoffees shall take the profits and deliver them to the Feoffor and his heirs c. or that the Feoffees shall convey it to the heire of the Feoffor at his age of twenty one years And where lands are conveyed to certaine uses expressed and declared and there be other secret uses and intents agreed upon between the parties these uses or trusts are not within this Statute neither will the Statute execute them but they remaine as they were before the Statute determinable in Chancery Also Leases for years of lands in use that have their being before and are granted over in use are not executed by this Statute And therefore if a Leassee for yeares of land grant or Dyer 369. 356. Crompt â—ur 65. assign over his estate to A and B and their assignes to the use of the Grantor and his wife for the term of their lives this use or trust is out of this Statute and not executed thereby and therefore in this case all the estate is in A and B and the Grantor hath nothing but a use for which he hath his remedy in Chancery So if one be seised of land in Fee and he bargaine and sell it or make a Lease of it to another in trust and for the benefit of a third person this is but a Chancery trust c. in this third person as was held clearly M. 8. Car. B. R. And yet if a Feoffment bee made to the use of I S and his assignes for the terme of twenty years this term of yeares shall be executed by the Statute And so in all such like cases and questions of Trusts and uses that are not within the Statute of uses the Law is now as it was before the same Statute was made and all those matters are determinable in Chancery for as the questions of uses and trusts that are within the Statue are to bee decided and ruled by the Iudges of the Common-Law so are all other questions of uses and trusts that are out of the Statute to be ruled and decided by the Iudges of the Chancery To make a good use or to make a use to rise especially such a 4. What shall be said a good use of land or not and when and where such a use shall be raised altered or created or not use as may bee within the Statute respect must be had to divers Coo. super Litt. 271. Plow 301. things 1. To the wayes or meanes of creating and raising of uses wherein it is to be observed that albeit the quallity of the uses be changed in most cases by the Statute of uses yet uses and uses within this Statute are and may be raised as they might before the Statute either by transmutation of the estate as by fine feoffment common recovery c. or out of the estate of the owner of the land as by bargain and sale by Deed indented and inrolled or by Covenant to stand seised to uses upon good consideration And therefore a First in respect of the manneâ— of raising it and the severall wayes whereby uses may be raised Fine Feoffment or Recovery may be had of land to the use and intent that either of the parties thereunto or others shall have it for any time or estate and by this meanes what uses and consequently what estates a man will may be raised and created And in these cases the Conusor Feoffor or Recoveree may appoint the use of the same Fine Feoffment or Recovery to whom he will without any respect of marriage money kindred or the like for in this case his will guideth the equity of the estate Or if a man make Dyer 186. a Lease to A for life to the use of B for life this is a good use and estate in B during the life of A. Or if a man by bargain Coo. 6. 68. and sale for good consideration sell his land to another hereby the use will rise according the estate bargained and sold unto the Bargainee but in this case if it be an estate of Free-hold Dyer 155. Coo. 7. 36. 7. 40. 8. 9â— 4. 70. See Bargaine and Sale as of Fee-simple fee-Fee-taile or for life that is sold the bargain and sale must be made by Deed indented and inrolled within six moneths after in some of the Courts at Westminster or in the Cessions Rolls of the Shire where the land lyeth except it be in Cities and corporate Townes where they use to inroll Deeds otherwise Coo. 2. 3â—8 â—4 no use will rise by it but if it be an estate or term for years only that is sold there the use will rise well enough without any such matter Or if a man seised of land in Fee covenant to stand seised of 〈◊〉 to the use of his wife children brethren or other kinsfolke for life in Fee-simple fee-Fee-taile or if one seised of land in Fee-simple covenant to stand seised of it to the use of a woman he is to marry or to the use of a woman his sonne or other kinsman is to marry or the like hereby the uses and consequently the estates will râ—se accordingly And in these cases there is no need it should be by Deed indented c. or that the Deed be inrolled for uses may be raised by Deed poll as well as by Deed indented Also uses may be created as some hold by word or parol-agreement Crompt Iur. 61. 60. Plow 301. 308. and the better opini on of the Iudges in Corâ—ins case 38 Eliz. as well as by Deed or writing for it is said it hath been adjudged That if a man say to his sonne and a wife that his sonne is to marry that in consideration of the same marriage they shall have the land to them two in taile that hereby a good estate tail will arise after the
Seventhly in respect of the manner and â—rame of the words used in the raising of uses and what manner of uses may be made or not making and raising of uses wherein there is much regard to the minde and intention of parties For if one covenant in consideration Coo. 3. 91. of 20 l. paid him by I S to stand seised of land to the use of I S and his heires or if one covenant that I S and his heires shall have his land if this Deed be inrolled this is a good bargain and sale to raise the use and will doe it as well as when it is made by the words bargaine and sell So if one for good consideration by words Coo. 2. in Sir Rowland Hay wards case Wards versus Lambert Co. B. Pasche 37 Eliz. of Demise and Grant make a Lease of his land for a term of years hereby the use will rise to the Leassee as well as if the Lease were made by the words bargaine and sell Et sio de similibus And yet if one by words of bargaine and sell convey his land to his son Inrolment no use will arise by this except there be money paid and the Deed be inrolled And if one in consideration of money grant his land to his sonne or any other by the word enfeoffe no use will rise by this unlesse Livery of Seisin be made thereupon because the intent of the parties in these cases doth appeare to be to passe it in another manner And if in the last case Livery of Seisin bee made Resolved in Stiles case 3â— Eliz. then the use shall be guyded by Law that is if nothing be given it shall be to the use of the Feoffor and not amount to a limitation of use to the sonne * 21 H. â— 18. Plow 308 301. Broo. Feost mental use 16. If one covenant with his sonne that his land shall remaine or that his land shall discend to him this is a good covenant to raise the use according to the limitation And yet if one covenant with his sonne upon his marriage that his land shall remaine revert or discend to his sonne in Fee or in Fee-Taile by this no use will be raised because it is so incertaine but perhaps this may amount to a covenant whereupon the sonne may have an Action of Covenant If I covenant for me and my heires that Covenant I and my heires and all others that are seised shall bee thereof seised to the use of c. this is a good covenant to raise the use albeit it be in words of the future tense If I covenant with my Dyer 374. eldest sonne and strangers to convey my land to the same strangers to the use of my selfe for life and after of my sonne in Taile c. and I grant by the Deed that the said persons seised of the said land shall be from thence seised to the said uses and none other use and no other conveyance is made it seemes this is sufficient to raise the use And yet if I be seised of land in Fee and Covenant with I S that A B and C D and their heires shall stand and be seised of this land to the use of c. it seemes this is not a good covenant to raise the uses If a Feoffment or other conveyance Coo. 1. 120. be made to the use of the Feoffor and the heires of his body on the body of M the wife of S T and for default of such issue to the use of him and the heirs of his body of S the now wife of W K and for default of such issue then to the use and performance of his last Will for 10 yeares immediatly after his death and after the term ended to the use of the Feoffees and their heirs during the life of W eldest sonne of the Feoffor and after his death to the use of the first issue male of the body of the Feoffor lawfully begotten and the heires of the body of such first issue male and for default of such first issue male to the second issue male c. in the same manner these are good limitations of uses So if a use be limited to I S for life without impeachment of waste and after to the use of Coo. 1. 90. B and C their Executors and Administrators for the term of twenty years and after to the use of C and the heires males of his body c. these are good uses So if a use be limited after this manner Coo. 6. 18. Lit. Sect. 462. 403. viz. to the use of a mans last Will and Testament or to the use of such person and persons and of such estate and estates as he shall limit and appoint by his last Will and Testament or to the use of such person and persons or to such uses and purposes as he shall by any writing under his hand and seale declare and appoint these are good limitations If I covenant with another in consideration of Coo. 1. 176. blood c. that I will stand seised of my land to the use of such of my sonnes or such of my cousins as the Covenantee shall name in this case after a nomination made the use will rise well enough But if I for and in consideration of 10l or the like good consideration Incertainâ—y covenant to stand seised of land to the use of such persons as the Covenantee shall name in this case albeit the Covenantee doe nominate some of my cousins or blood yet no use will rise by this for the incertainty of it If a Feoffment or other conveyance be to the use of I S and his heires provided that if the Foeffer pay 10l at such a day that then it shall be to the use of the Feoffer and his heirs this is a good limitation and the use will rise accordingly A use may be limitted to a woman durante viduitate sua and this Coo. 4. 3. is good If a man bee seised of two Manners and covenant to stand Coo. 11. 23. seised of the same to the uses following viz. of the one to the use of the Covenantor for his life and after to the use of his wife for life and after to the use of his eldest sonne in Taile c. And for the other Mannor to the use of his second son in Taile c. these are good limitations and the uses will rise accordingly If a man seised of land in Fee agree with another that a Fine Coo. 2. 69. 70. shall be levied of it and that the same shall be to the uses following viz. that I S the Conusor shall have one yearly â—ent of 50 l. during his life to be issuing out of the same land and as touching the land charged with the rent c. to the use of I D the Conusee untill default of payment of the said yearly rent and then to the use of I
S and his heirs for ever this is a good limitation and the use will rise accordingly Et sic de similibus If a Feoffment be made by I S to the uses in certaine Indentures Coo. 10. 78. Tripartite of the same date and therein is declared that it shall bee to the use of A for life without impeachment of Waste and after to the use of such Farmoâ— or Tenants to whom he shall demise any part of the premises for life or lives or for any terme of yeares as in any such demise shall be limited and appointed and after to the use of the performance of the last Will of the said L and to the use of such person or persons severally to whom the said L by his last Will and Testament shall appoint any estate and after to the use of c. these are good uses and the estates shall rise accordingly A use may be limited upon condition and the condition may Coo. 4. 14. be annexed to one of the uses and not unto another If lands be conveyed to I S and the heires of his body to the Coo. supâ— Lâ—â— 19. use of I S and his heirs or to the use of a stranger and his heires this use will not rise in this manner And yet if lands be conveyed to I S and his heirs to the use of him and the heirs males of his body and after to the use of a stranger and his heires it seemes this is a good limitation If one grant lands by Deed to husband and wife To have and to Hill 6. Car. B R. Aâ— iudge hold to the use of the husband and wife and of the heires of their two bodies this is a good estate Taile by this limitation albeit he doe not say Habendum to them and their heirs c. but Habendum to their uses but otherwise it were if the use were limited to a stranger in this manner If lands be conveyed by I S to I D to the use of I S or to the Dye◠〈◊〉 use of his wife for life or to the use of any other for life the remainder to another in Taile or for life the remainder to a third his Executors c. for six months and after the six months ended to the use of a fourth and his heires these are good limitations and the estates will rise accordingly If a use be limited to the Conusee of a Fine or a Recoveror in a Dyer 2â—â— Recoverie untill he make a Lease for fourty yeares and after to the use of the Recoverees or Conusors and their heirs this is a good limitation and the use will rise accordingly Contingent uses or use in posse may be created as well as uses in esse and therefore if lands be conveyed to the use of a man and the Coo. 1. â—â— Câ—â— case 13â— wife he shall afterwards marry or to the use of his first second or third wife or to the use of I S for life and after to the use of the right heires of I D and I D is then living or to the use of I S for life and after to the use of him that shall bee his first heire male and the heires of the body of such heire male c. all these and such like are good uses but they are uses at the Common-Law Righthly in respect of the nature and quality of the â—â—e still and are not executed by the Statute untill they come in esse The last thing whereunto respect is to be had is the nature and qualiâ—y of the use And herein it is to be known that a man may at this day by act executed in his life time or by his last Will and Testament at his death give his Lands Tenements or Hereditaments Coo. 1. 26. 3. 131. 4. 113. Charitable uses to any person or persons not corporate and their heires for any religious charitable or civill use as well as for any private use And therefore a man may so dispose of his lands for the finding of a Preacher erecting or maintenance of a Schoole reliefe and comfort of maimed souldiers sustenance of poore people reparations of Churches High-wayes Bridges discharging of the poore Inhabitants of a Village of the common charges to make a stock for poore Labourers iâ— Husbandry and poore Apprentices and for the marriage of poore Virgins or other such like uses and these uses are not prohibited by any Statute And it is good policy upon every such Feoffment or estate to reserve to the Feoffor and his heires some small rent or to set down some small consideration But these uses are not such uses as are executed by the Statute of uses neither are they to bee resembled to the usâ—s aforesaid for in this case if there be any mis-imployment of the lands or breach of the trust by the parties trusted redresse is to be had by the Lord Chancellor or Lord Keeper by a speciall course of proceeding For which see the Statutes of 39 Eliz. chap. 6. 43. Eliz. chap. 9. 7 Iac. chap. 3. But if any man have heretofore given Superstitious Vâ—â—s or heretofore shall give any Lands Tenements of Hereditaments Stat. 15. R. 2. ch 5. 37. H. 8 ch 4. 1. Ed. 6. ch 14. by act executed in his life or by his last Will at his death to any person singular or corporate in Fee-simple Fee-Taile for life or yeares to the intent or upon condition to maintaine any superstitious use as to finde a Chaplaine and have the service of a Priest to say Masse or to have a Priest or other man to pray for the Soule of any dead man in such a Church or other place or to have or maintaine perpetuall obites lamps or torches c. to bee used at certaine times to help to save the souls or men out of the supposed Purgatory all these and such like uses are void and the lands that are so given to such superstitious uses are to be forfeited and given to the King and he shall have them and yet so that if there bee any charitable use intermixed with the superstitious use and they may bee distinguished the King shall have only so much as is given to the superstitious use and not that which is given to the charitable use also For which See Adams and Lamberts case at large Coo. 4. 104. Coo. 1. 175. 176. Dyer 109. 5. Declaration of Vses And where a use of land may hee declared upon any Assurance and â—â— a shall be said a suffienâ— dâ—â—laration of such a uâ—e or not As touching the Declaration of Uses i e. the manifestation or agreement of the parties to what uses and intents the Assurance made shall be these things are to be known 1. That uses may be declared or averred on a Fine Feoffment or recovery of land but on a bargaine and sale of land no use may be declared or averred but what the Law doth make And upon a
will adjudge this to be to the use of the wife and her heirs but if they sell her land for money and after levy a Fine thereof to the Vendee this shall be to the use of the Vendee and his heirs And if a man be seised of land of the part of his Mother and without any consideration make a Feoffment in Fee of it this shall be said to be to his use in the same nature he had it before So if two Jointenants be of land the one in Fee-simple and the other but for life and they without any consideration levy a Fine of it and make no declaration of use the use shall be to them of the same estate as they had before in the land So if â—â— tenant for life of land and B in reversion or remainder levy a Fine of this land generally this shall be to the use of A for life and to the use of B in Fee afterwards as it was before So if A be seised in Fee of an Acre of ground and he and B joyne together and levie a Fine of it to another without any consideration this shall be to the use of A and his heirs only If one make a giâ—t in taile or Lease for life or yeares albeit Perk. Sect. 533. it be without any consideration of Fine or Rent yet the Law will adjudge the use in the Donee or Lessee and not in the Donor or Lessor If one at this day by Deed indented bargain and sell his land Plow 539. Coo. 1 87. â—et see Litt. Broo. 536. Câ—ompt â—â—r â—7 2â— H. â— 6. Co. â— 110. to another for money and doth limit no estate but the Deed is Habendum to him only and not Habendum to him and his heirs or to him and the heires of his body or to him for life howsoever in this case before the Statute of uses was made it was other wise yet now the common received opinion is that by this there doth passe onely an estate for life and not a Fee-simple If a Feoffment be made to I S and his heires to the use of I D without any more words by this limitation I D hath only an Coo. super Litt. 42. Dyer 169. estate for life So if a Feoffment be made to I S and his heires to the use of I D for ever without saying and his heires hereby I D hath only as estate for life And so of other uses the construction shall be according to the rules of Law If a use be limited to I S and his heires untill A shall come from beyond the Sea and attaine his full age or dye in this case Pasche 3◠〈◊〉 B. R. the Lord Mordaâ—â— case if he come from beyond Sea attaine his full age or dye the use shall cease If one covenant to stand seised to the use of A his eldest sonne Hill 17. â—ac B. R. â—â— wayeâ— caâ—e and the heires males of his body and after to the use of B his second sonne in tail in the same manner or according to the limitation to A by this B hath an estate tail to him and the heires males of his body If a Feoffment in Fee be made to the use of a man and his wife Coo. super Litt. 28. for their lives and after to the use of their next issue male to bee begotten in Tail and after to the use of the husband and wife and of the heires of their two bodies begotten they having no issue male then by this the husband and wife are tenants in speciall Tail executed and after they have issue male they are tenants for life the remainder to the sonne in Tail the remainder to them in speciall Tail If one make a Feoffment to the use of himself for life and after his decease to the use of Alice whom he doth intend to marry Dyer 300. untill the issue he shall beget of her shall be of the age of 21 years and after the issue cometh to that age then to the use of the wife during her widdowhood and the husband dye without issue by this the wife shall have an estate at least during her widdowhood If I covenant with B that in consideration he will marry my daughter that from the time of the marriage I will stand seised to Coo. 1. the use of my self for life and after to the use of C a stranger and the heirs males of his body and after to the use of B and my daughter and the heirs of their two bodies in this case albeit the use limited to C the stranger be void yet it seems B and my daughter shall not have the land till the death of C without issue but that my heirs shall have it till that time If I covenant with B to stand seised to the use of my selfe for life and after my death to the use of C a stranger for the term of 20 years Coo. 1. 155. and after the end of the term to the use of my sonne in tail in this case the use limited to C is voyd and my sonne after my death shall have the land But if the words of the covenant be and after the end of 20 yeares insteed of and after the end of the term my sonne shall not have the land untill the 20 yeares be expired See more in exposition of Deeds Chap. 5. All such uses as are not within nor executed by the Statute of 8. Where and how Vâ—es of Land â—ay be extinguished and destroyed or suspended or noâ— And where the ancient Vses shal be revived by the entry of the Feoffees or not 27 H. 8. but remain at the Common-Law may be destroyed discontinued Co. 1. Chudleighs caâ—e or suspended as uses before the Statute might have been And therefore contingent uses may be extinguished or suspended at this day As it a man seised of land in Fee have three sonnes A B and C and he make a Feoffment of his land to divers Feoffees to the use of them and their heires during the life of A and after to the use of the first sonne that A shall beget and the heirs males of the body of such first sonne or if a Feoffment be made to the use of a man and the wife that he shall marry or the like if in these cases the Feoffees make a Feoffment over before the contingent uses happen to be in esse as before A have any sonne or the man take a wife c. albeit it be to one that have notice of these uses yet the uses are destroyed for ever and the Feoffees cannot enter and revive them contrary to their own Feoffment And if in these cases the Feoffees before the contingent remainder vest be disseised hereby the uses are suspended but then by the Reentry of the Feoffees the ancient uses will be revived again And therefore if the Feoffees release to the Disseisor and so barr themselves of their entry the uses
for life years in present or future or for one yeare or by taking a wife whereby shee may be intitled to dower or by suffering a recovery of the land or by granting of any rent Common or the like or by entring into any Statute c. or by suffering any Judgement to be had against him or by doing any other such like act whereby he cannot convey the land according to the condition in the same plight quality and freedome it was at the time of the conveyance made in either of these cases the condition is ipso facto broken And albeit the land be afterward discharged and the party againe enabled before the day to performe the condition yet this will not salve the breach And so also it is of a limitation But when the condition is to be performed of the part of the feoffor or grantor there disability before the time will not hurt so as he be againe enabled at the time And so also it is when the condition is to be performed of the part of the feoffee and there is no certaine day set for the performance of the thing for in this case albeit he be once disabled yet if he be afterwards againe enabled and doe it within the time that the law doth give him to do it in this case the condition is not broken And so also it is if the feoffee be disseised and during the disseisin he doe any such act as before in this case before his entry this is no breach of the condition for till then the charge doth not binde the land And so likewise it is when the disability doth proceed from another cause as where one doth make a feoffement on condition that the feoffee shall reinfeoffe before such a day and before the day the feoffor disseise the feoffee and keepe him out till the day be past or one doth make a feoffement on condition the feoffee shall marry B before such a day and before the day the feoffor himselfe doth marry her so that the feoffee cannot performe the condition in these cases the condition is not broken If one make an estate of lands held in Capite on condition Trin. 13 Jac. Slade versus Tompson B. R. To imploy the profits to charitable uses that he to whom it is made shall imploy the profits thereof to divers charitable uses and he die his heire within age by reason whereof the King hath the land during the minority of the heire so that the profits cannot be employed this is no breach of the condition If one make a feoffement of land on condition to reinfeoffe To reinfeoffe Co. 1. in Porters case in convenient time and the feoffee doth not so but doth make a lease to another this is a double breach of the condition And the same Law is of a Devise by will in this manner If a feoffement be made upon condition that the feoffee shall To make an estate Perk. Sect. 796. Co. 8. 90 See the parable Mat. 21. 28. make some estate to the feoffor or some other by a day and the feoffee before the day say to him to whom the estate is to be made that he will never make the estate notwithstanding he doth make the estate before the day according to the condition in this case it is said the condition is broken Sed quere of this for it seemes if he really deny it before and actually performe it at the day that this is a good performance of the condition As if a lease be made of a house on condition that the lessee shall not disturbe the lessor in the taking a way of his goods out of the house and To suffer one to take his goods when the party doth come or send to fetch them the lessee doth only forbid them this in this case is no breach of the condition and it was agreed in this case that words without some deeds as shutting the dore against them forcible resistance or laying of hands upon them or the like are no breach of such a condition And if a lease be made on condition that the lessor shall be 3 H. 4. 8. foure times a yeare in the house demised without being ousted by the lessee and the lessee seeing him comming doth shut the dores To suffer one to come into a house or windowes against him this hath been thought to be no breach of this condition If a lease be made on condition that the lessee shall pay yearly Dier 33. To pay a yearly rent or sum to the lessor during the terme tenne pound in this case if he faile of payment once the condition is broken and estate forfeit So if one make a feoffement in fee of land on condition to pay tenne pound yearly to I S if he faile once the condition is broken If a lease be made of a Manor in which are divers Copyholders Not to molest Copiholders Penner versus Glover 37 38 El. Mich. B. R. per curiam on condition that the lessee shall not molest vex or put out any Copiholder paying his duties and services in this case if the lessee enter upon and put out any one Copiholder this is a breach of the condition But if he enter vi armis upon a Copiholders tenements and there beate him only or the like this is no breach of the condition If there be a condition to pay rent and the lessee let part of To pay rent Crompt Jur. 64 65. the land to other undertenants or let all the land to another for part of the time and he undertake the rent still and faile of payment in this case the condition is broken and estate forfeit But if there be any covin and practise in the case between the first lessor and the lessee the undertenants may perhaps have relief in equity Equity If one make a lease for years of land and then also make a feoffement Co. 8. 90. in fee of the lands on condition that if the lessee be disturbed Not to disturb bed in his terme that he shall have the fee simple and he is disturbed by the feoffor or by his meanes in this case the condition is broken and the lessee shall have the fee simple But if the disturbance be by a stranger and not by the feoffor or by his meanes or consent this is no breach of the condition If a lease be made on condition that the lessee shall not be out-lawed Not to be outlawed Per 2. Justices H. 7 Jac. B. R. and he is outlawed without proclamation it seemes this is no breach of the condition because the outlawry is not good If a condition possible at the time of creation become after impossible Lit. Sect. 352. Co. 2. 59. in part by the act of God and the party doe not performe that which is possible the condition is broken If a man make a lease for years