this That a Deed to lead the use of a fine may be either by an Instrument Poll or Indented and the Indented may be either single of two parts of three parts called Tripartite or four parts called Quadripartite or of more parts as the case is thus This Indenture c. between A. of the one part and B. of the second part Or Tripartite as This Indenture c. between A. of the first part B. of the second and D. of the third part Or Quadripartite between A. of the first part C. of the second part E. of the third part and G. of the fourth part and so to name all the persons except the common Vouchee that bear any part in the Deed Fine or Recovery And so in all other matters as the case is the Indentures are to be drawn up In the last place I will cite Six or Seven Cases in this Point and so go on to the next head 1. In 31 H. 8. Nota That a Fine being enrolled in London doth bind as a Fine at Common Law but not as a fine with Proclamations and there needs no Livery of Seisin upon the Deed and this is a Discontinuance without Livery for that by the custome there this bindeth as a fine and the Customes are confirmed by divers Acts of Parliament Litt. Broo. Case 155. 2. In Pasche 2 Jac. B. R. in the Case of the Countess of Rutland against the Earl of Rutland It was held upon Evidence to a Jury and to them delivered by the Court for Law That if there be an Indenture for levying of a Fine to such persons before such a time to such uses and the fine be levied to the same persons within the same time it shall be to the same uses And no Averment can be to the contrary unless it be by other matter in writing But if a fine be levied to other persons or at another time it may be well averred by Paroll to be to other uses For in the first case the Indenture is directory to the fine and in the other case it is but Evidence Cro. 2.29 3. If a Woman who is an inheritrix covenants by Indenture without the knowledg or consent of the husband to levy a Fine to certain Conusees and Uses in the Indenture mentioned and afterwards the Husband covenants by another Indenture without the knowledg and consent of his wife to levy a fine to other Conusees and Uses in that Indenture mentioned and afterwards the husband and wife joyn in a fine to the Conusees in the Indenture of the wife mentioned In this case the Limitations and Declarations of both the Uses in both the Indentures are void and the Fine shall be by construction of Law to the use of the woman and her heirs as if no use had been declared for the wife alone though she be Owner of the Land yet being sub Potestate Viri cannot limit the use on the one side And the husband who hath not any thing in his own right cannot without the good liking of the wise limit the use of the Wives Land So the one is not sui Juris and hath an Estate The other is sui Juris and hath not the Estate and therefore when they differ in the limitation of the Uses all which they do must be void 4. Tenant for life by Fine granted totum statum to A. and his heirs the Grantee dyes the heir being impleaded in a Praecipe prayed ayd and could not have it because it is but an Occupance Co. 10.95 Dyer 321. 5. In the Case of Iseham and Morris Pasch 4 Car. 1. It was Resolved among other things That where one is Lessee for years and assigns over his Lease in trust for himself and afterwards purchases the Inheritance and occupies the Land and then levies a a Fine with Proclamations and the Lessee doth not claim the Lease within the five years this Fine and Non-claim shall barre the interest of the Lessee though he who levied the Fine hath the possession by reason of the Trust But this Trust is included in the fine and the Trustee not making claim his Interest is barred thereby Cro. 1.78 6. Nota. It was agreed by all the Justices and by the Prothonotaries That if the Disseisor levy a Fine and the Disseisee in the preservation of his right against the said fine enter his Claim in the Record of the foot of the fine that the same is not any such claim as shall avoid the Stat. of 4 H. 7. See for this the Lord Zouches Case in Plowd Com. Mich. 29 Eliz. in C. B. 7. In Hill 45 Eliz. B. R. Fitz-Williams Case in Ejectione Firmâ— it was found That Fitzwilliams did suffer a Recovery to the use of himself and his wife with a Remainder to John Fitz-Williams and with a Proviso in these words Provided That it shall be lawful for him and his wife by their Joynt Deed sealed before three Credible witnesses to alter change revoke determine and make void any use or uses Estate or Estates limited in the said Deed and to limit new uses and that from thenceforth the Recovery shall be to the new uses And it was found moreover that Fitz Williams made a Deed and by it declared That it was their intent to alter change determine revoke or avoid all the former uses to J. F. and thereupon without more words limit new Uses In this Case it was doubted If the old Uses were well revoked and the new uses in being And after many Arguments it was adjudged a good Revocation of the old Uses and a good limitation of new uses Moors Rep. 683. And it seems the like Law is of the Uses of a Fine 8. A Fine was levied to A. to the use of A. for life the Remainder to E. in tail the Remainder in fee to B Provided That if B. pay 100 l. that he shall have Tail in fee expectant In this case upon the payment the use shall arise accordingly Dyer 314. 9. If there be Tenant for life the Remainder in see to an Infant and they both levy a Fine and after the fine is reversed as to the Infant yet the Conusee shall have the Land for the life of the Tenant for life because that each of them gave that which he might lawfully give Englishes Case Co. 1. Part 76. in Bredons Case I will in the last place give you the Statutes concerning Fines The first of which is 27 H. 1. Stat. 1. cap. 1. De finibus levatis Exception against a Fine that the Plaintiffs or Defendants or their Ancestors were alwayes seised of the Lands contained in the fine shall not from henceforth be admitted in the Parties to the fine or their heirs The Fines shall two dayes in the Week be publikely and solemnly read and all Pleas cease in the mean time 34 Ed. 3. cap. 18. The Plea of Non-claym of Fines from henceforth to be levied shall not be any barre Marlb 1. cap. 7. All Fines
the husband in tail Remainder to another in Fee and the husband doth suffer a Common Recovery In this case it was held That this was no barre to the Issue in tail for any part for there are no moieties between them And there where the husband alone suffers the Recovery there is no lawful Tenant to the Praecipe and so the Recovery is no barr Co. 3.5 Marquess of Winchester's Case 8. In 25 H. 8. it was held That if my Tenant for life vouch a stranger who doth enter into the Warranty and cannot barre the Demandant and the Demandant doth recover and the Tenant over in value That the Land recovered in Value shall not go to me in Reversion after the death of Tenant for life nor shall the Reversion of the Land recovered in Value be in me in the life of the Tenant for life Broo. Cases Sect. 70. 9. In 30 H. 8. it was held That where there was Tenant for life a remainder in taile or for life and the Tenant for life is impleaded and doth vouch him in remainder who doth vouch one that hath a title of Formedon so the Recovery pass by Voucher then the issue of him that hath a title of Formedon may bring his Formedon and recover against the Tenant for life for the recompence shall not go to the Tenant for life and therefore he may recover for his Ancestor war ranted the remainder only and not the Estate of the Tenant for life and therefore the Tenant for life may not bind him by the Recovery for he did not warrant to him and therefore in this case the sure way is to make the Tenant for life to pray in ayd of him in remainder and they to joyn and vouch him that hath the title of Formedon and so to pass the Recovery for the recompence shall go to them both Broo. Case 143. In the last place we come to the Statutes concerning this Point an abstract whereof followes Stat. 7 H. 8. chap. 4. That Recoverors of Lands Tenements and Advowsons their Heirs and Assigns may distrain for Rents Services and Customs due and unpaid and make avowry and justifie the same and have like remedy for recovering them as the Recoverors might have done or had albeit the Recoverors were never seised thereof and shall have also a Quare Impedit for an Advowson if upon avoidance any disturbance be made by a stranger as the Recoverors might have had albeit the Recoverors were never seised thereof by Presentation And here Avery Avowant or Bayliff in any Replegiari or Second Deliverance if their Avowry Conusance or Justification be found for them or the Plaintiff be otherwise barred shall recover his damages and costs Stat. 21 H. 8. chap. 15. That a Termor for years may falsifie a feigned Recovery had against him in the Reversion and shall retain and enjoy his term against the Recoveror his heirs and assigns according to his Lease Also that the Recoveror shall have like remedy against the Termor his Executors or Assigns by Avowry or Action of Debt for the Rents and Services reserved upon such Lease and due after such Recovery and also like Action for wast done after such Recovery as the Lessor might have had if such Recovery had never been and no Stature-Merchant Staple or Execution by Elegit shall be avoided by such feigned Recovery but such Tenant shall also have like remedy to falsifie such Recoveries as is here Provided for the Lessee for years Stat. 34 35 H. 8. chap. 20. That no feigned Recovery hereafter to be had by assent of parties against any Tenant or Tenants in tayl of any Lands Tenements or Hereditaments whereof the reversion or remainder at the time of such Recovery had shall be in the King shall bind or conclude the Heires in tayle whether any condition or Voucher be had in any such fained recovery or not but that after the death of every such Tenant in tayle against whom such recovery shall be bad the Heirs in tayle may enter hold and enjoy the Lands Tenements and Hereditaments so recovered according to the forme of the gift in tayle the said recovery notwithstanding And here the Heirs of every such Tenant in tayle against whom any such recovery shall be had shall take no advantage for any recompence in value against the Voucher or his Heirs But this Act shall not extend to prejudice the Lessee or Lessces of any such Tenant in tayle made in writing indented of any Mannors Lands c. for 21 years or 3 lives or under whereupon the accustomed Rent or Rents is or shall be yearly reserved during the same Term or Terms but the same Lessee or Lessees shall enjoy his or their Terme or Termes according to the Stat. of 32 H. 8. chap. 28. This Act nowtithstanding Stat. 14 Eliz. chap. 4. That all Recoveries had or prosecuted by agreement of the Parties or by Covin against Tenants by the courtesy Tenants in tayle after possibility of issue extinct Tenant for Life or Lives or of estates determinable upon Life or Lives or of any Lands Tenements or Hereditaments whereof such particular Tenant is so seised or against any other with Voucher over of any such particular Tenant or of any having right or title to any such particular Estate shall from henceforth as against the revertioners of them in Remainder and against their Heirs and Successors be clearly voide But this Act is not to prejudice any persons that shall by good title recover any Lands c. without fraud by reason of any former right or title Also every such Recovery had by the assent and agreement of the person in revertion or remainder appearing of record in any of the Queens Courts shall be good against the party so assenting But this assent must appear upon the same record either upon a Voucher ayd prier receit or the like and not by any extrajudicial entry or memorandum Co. upon Lit. 362. Stat. 14 Eliz. chap. 8. Every fraudulent Recovery against any Tenant for Life or whereupon any Tenant for life or be that hath right to Estate for life is vouched shall be void against him in the revertion or in the remainder unless it be by his own assent appearing by record Recoveries in a writ of right bind all strangers not clayming within the years as being suffered by a Disseisor it bindeth the Disseisor by his own Non-claym 5 E. 3.50 Tenant for Life suffering a wrongful Recovery it shall prejudice his right that hath the inheritance though he prayed in ayde and make default 34 H. 6.2 For no ayde prayer is there necessary in as much as the other being Tenant of the Freehold a Recovery is good against him 4 H. 7.3 But that after the death of Tenant for Life he may falsifie it by action of ad terminum qui praeteriit or writ of Right which we call falsifying of Recoveries 24 H. 8. Br. fan rec 41. But he cannot enter neither can Lessee for years
wife of the other part witnesseth That they the said J. T. and El. his wife as well for and in consideration of the sum of 210 l. of c. by the said R. H. unto them the said J. T. and El. his wife at the ensealing and delivery of these presents well and truly in hand paid the receipt whereof they the said J. T. and El. his wife do hereby acknowledge and thereof and of every part and parcel thereof do fully clearly and absolutely acquit exonerate and discharge the said R. H. his Heirs Executors and Administrators and every of them by these presents have granted aliened bargained sold and confirmed and by these presents c. unto the said R. H. and El. his wife all that one Messuage or Tenement c. together also with all and singular the Rooms Cellars Sollers Halls Parlours Chambers Houses Housings Vaults Pavements Courts Yards Easements and other Hereditaments Emoluments and Appurtenances whatsoever unto the said Messuage or Tenement and Premises or any of them appurtenant belonging or appertaining orâ—had used demised occupied or enjoyed as part parcel or member thereof or as thereunto or to any part thereof belonging or appertaining and the reversion and reversions remainder and remainders of them and every of them and also they the said J. T. and El. his wife for the consideration aforesaid have granted bargained and sold and by c. unto the said R. H. his Heirs and Assigns all and singular Letters-Patents Exemplifications of Fines and Recoveries Chirographies of Fines Charters Deeds Indentures Counterpanes Writings Evidences Escripts and Minuments whatsoever concerning only the premises hereby mentioned to be bargained and sold or only any part thereof and which now are in the Hands Custody or Possession of the said J. T. or any other person or persons by his delivery or appointment or to his use or to the use of the said El. his wife and which he may have obtain or come by without suit in the Law and also true Copies of all such other Letters-Patents exemplifications of Fines and Recoveries Chirographies of Fine Charters Deeds Indentures Counterpanes Writings Evidences Escripts and Minuments whatsoever amongst other things concerning the premises or any part thereof and which now are in the Hands Custody or Possession of the said J. T. or any other person or persons by his delivery or appointment or to his use or which he may have obtain or come by without suit in the Law all and singular which said Letters-Patents Exemplifications Chirographies Charters Deeds Indentures Counterpanes Writings Evidences Escripts and Minuments so hereby bargained and sold by the said J. T. he the said J. T. doth hereby grant and agree to deliver or cause to be delivered to the said R. H. his Heirs or Assigns on this side the Feast of the Annunciation of the blessed Virgin Mary now next coming safe uncancelled and undefaced as now the same are together with the said Copies the writings of the said Copies to be paid for by the said R. H. to the receipt of the said Copies To have and to hold the said Messnage or Tenement and Backside and all and singular other the premises hereby mentioned to be bargained and sold and every of them with their and every of their appurtenances and the Reversions and Remainders of them and every of them unto the said R. H. and El. his wife and the Heirs and Assigns of the said R. H. to the only proper use and behoof of the said R. H. and El. his wife and the Heirs and Assigns of the said R. H. for ever without any Mortgage Condition redemption use or limitation to recal alter charge or determine the same to be holden of the chief Lord or Lords of the Fee or Fees whereof the premises have been holden by the Rents and Services therefore due and of right accustomed And the said J. T. for himself his Heirs Executors and Administâ—ators doth covenant and grant to and with the said R. H. his Heirs and Assigns and to and with every of them by these presents that she the said El. his wife is seized of the reversion of the said bargained premises of an Estate to her and the Heirs of her Body lawfully begotten immediately expectant upon an estate for the life of Hellen Cl. now wife of Leo Cl. of c. Gent. with further remainder or reversion immediately expectant upon the said estate-Estate-tail to the right Heirs of the said El. for ever without any reversion or remainder of the same or of any part thereof in our Soveraign Lord the King or otherwise of the full absolute reversion in Fee-simple expectant upon the said Estate for life of the said Hellen And the said J. T. for himself his Heirs Executors and Administrators doth covenant and grant to and with the said R. H. his Heirs and Assigns and to and with every of them by these presents that they the said R. H. and El. his wife and the Heirs and Assigns of the said R. H. and every of them shall and may from time to time and at all times hereafter for ever after the decease of the said Hellen peaceably and quietly have hold occupy possess and enjoy the said Messuage or Tenement Backside and Premises without the let interruption trouble expulsion or eviction of the said J. T. and El. his wife or either of them or of their or either of their Heirs of their or either of their Bodies begotten or to be begotten or any other Heir or Heirs of them or either of them or of any heir or heirs of T. L. Gent. deceased and without any lawful let trouble interruption expulsion or eviction of any other person or persons whatsoever now having or lawfully claiming to have or which hereafter may have or lawfully claim to have any manner of estate right title interest thing or demand of in to or out of the said bargained premises or any of them by for from or under them or any of them or by from or under the said Hellen or by their or any of their means consent or procurement except such person and persons which may lawfully claim under the Leases and Estates herein after excepted and freed and discharged or otherwise within convenient time after reasonable request well and sufficiently saved and kept harmless and indempnified by the said J. T. his Heirs Executors and Administrators or some or one of them of and from a land all manner of former and other Bargains Sales Gifts Grants Alienations Estates Leases Joyntures Dowers Uses Wills Entails Rents Charges Rents-seck and arrerages of all manner of Rents Statutes-Merchant and of the Staple recognizances Judgments Executions Fines Post-sines and of and from all other Titles Troubles Charges and Incumbâ—aâ—ces whatsoever heretofore had made done committed omited or wittingly or willingly suffered or procured or hereafter to be had made done committed wittingly or willingly suffered or procured by the said I. T. and El. T. L. and H. or either
estate for life of the said El. F. and the Bargain and Sale before herein excepted and further also that he the said R. F. and his Heirs and all and every other person and persons having or claiming to have or that shall or may have or claim to have any right title estate or interest of in or to the premises from by or under him or his said Father except before excepted shall and will from time to time and at all times hereafter during the space often years next ensuing the date hereof upon the reasonable request and at the costs and charges of the said R. B. his Heirs or Assigns make do suffer acknowledge and execute or cause or suffer to be done and executed all such further and other lawful and reasonable acts things and assurances for the further better and more perfect granting assuring and conveying of the said Messuage Tenement Garden and Premises before hereby granted or mentioned meant or intended to be hereby granted with the appurtenances to the use of the said R. B. his Heirs and Assigns for ever according to the true meaning of these presents as by him the said R. B. his Heirs or Assigns or by his or their Council learned in the Law shall be in that behalf reasonably devised or advised and required so as for the making of such further assurance neither the said R. F. nor any other person by whom such assurance is to be made shall be compelled or compellable to travel for the doing thereof further than the Cities of London or Westminster and so as such further assurance contain not nor imply any further or more general warrant or acquittal than is before herein comprized And it is concluded and agreed by and between the said Parties to these presents that all and every fine and fines recovery and recoveries and other assurances whatsoever at any time hereâ—ofore had made suffered or executed of the premises or at any time hereafter be had or executed of the premises or any part thereof either alone by it self or together with any other Lands Tenements or Hereditaments and whereunto the said R. F. hath been or he or his Heirs shall be in any sort Conusor or Conusors Vouchee or Vouchees Party and Patties shall be and enure and shall be deemed adjudged and taken to be and enure as touching the said granted premises to and for the only use of the said R. B. and of his Heirs and Assigns for ever and to or for none other use intent or purpose whatsoever provided alwayes and it is the true intent and meaning of these presents and of all the Parties hereunto that neither these presents nor any thing therein contained shall extend or be construed to extend to charge the said G. G. and E. Ar. or either of them their or either of their Heirs with or for any warranty or acquittal of the said premises or any part thereof other than against him and themselves respectively and his and their respective Heirs In witness c. Note A Demise Bargain and Sale was made by R. H. G. G. and E.A. to W. F. and T. Y. Habend to them for one year from Decemb. 25. last that the Estate of Free-hold might rest in them without Livery Note A Surrender is made by El. to R. F. of her Estate for life for otherwise W. F. and T. Y. could not have been made perfect Tenants of the Free-hold John Vaugh seised of a Tenement jure uxoris for her life the remainder in fee-Fee-tail belonging to Tho. M. together with his wife and the Tenant in tail conclude to convey the same to T. S. and his Heirs the assurance is by Fine and Recovery intended to be executed the use whereof being to T. S. and his Heirs is directed by the following Deed wherein are comprized necessary Covenants THis Indenture Quadripartite made c. between I. V. of c. and Mary his wife late the wife of E. M. late of c. deceased of the first part Tho. M. of c. Son and Heir of the said E. M. on the Body of the said Mary begotten of the second part Tho. S. of c. of the third part and W. F. of c. of the fourth part Whereas the said I. V. and M. his wife stand seized in the right of the said M. of an Estate of Free-hold for term of the life of the said M. the remainder thereof in fee-Fee-tail to the said T. M. party to these presents belonging with divers remainders over of and in all that one great or Capital Messuage c. and also of and in all Houses Edifices c. witnesseth now this present Indenture that for and in consideration of the sum of 600 l. of c. to the said c. well and truly paid and satisfied it is concluded and agreed by and between the said parties to these presents that a good and perfect Estate of Inheritance in Fee-simple shall be conveyed setled and assured to and upon the said T. S. of and in all and singular the said great Capital Messuage or Tenement and Mansion-house now used as two Houses as aforesaid and all other the premises before mentioned with their and every of their rights members and appurtenances and that to that end intent and purpose the said John V. and Mary his wife and Tho. M. party to these presents shall and will before the end of Michaelmas Term now next ensuing the date hereof acknowledge and levy to the said W. F. and his heirs one Fine sur conuzance de droit come ceo c. to be sued out with Proclamations according to the form of the Statute in that case made and provided of all and singular the said Capital Messuage or Mansion-house and other the Premises with the appurtenances by the name of two Messuages with the appurtenances in the Parish of c. or by some other apt name or names as by counsel shall be thought meet to the intent to make the said W. F. perfect Tenant of the Free-hold of the premises that so one Writ of Entry sur disseisin en le post issuing out of the High-Court of Chancery and to be returnable before the Justices of the Court of Common-Pleas at Westminster may be obtained and sued out whereby the said T. S. shall demand against the said W. E. all the said Capital Messuage or Mansion-house and Premises by some apt name or names as by counsel shall be advised to which Writ the said W. F. shall appear in person or by Attorney thereunto lawfully authorized and after count or declaration against him by the said T. S. he the said W. F. shall make defence by words of course and vouch to warranty the said T. M. party to these presents who shall likewise appear in person or by his Attorney in that behalf lawfully and sufficiently authorized and after count or declaration against him by the said T. S. shall make defence by words of course and vouch to
of Joane a new right or title in the tayl descendeth to the said Richard and after his death to the said Thomas his Brother the Demandant Benloes Rep. 30 31. 2. In 29 H. 8. A Recovery was had against Tenant in taile and he dyed before execution And by the better Opinion the Issue is not remitted neither shall he falsifie because of the Recovery in value upon the Voucher Dyer 35. 3. In the Case of Hunt and Gateley Pasch 23 Eliz. in C.B. the case was That he in Remainder granted a Rent out of the Land after the Tenant in tail suffered a Common Recovery and dyed without Issue And it was Resolved by all the Judges of England That Leases for years Conusance of a Statute Grant of a Rent and all other Incumbrances by him in remainder are avoided by the common Recovery that the Tenant in tail shall suffer of the Land Moores Rep. Case 298. Capell's Case 23 Eliz. Co. 1. fo 62. 4. In Trin. 12 Eliz. 290. A Recovery was suffered by Husband and Wife of Tenements in London which by the Custome of London binds as a Fine at Common Law which was to the use of the Recoverors c. untill they made a Lease for 40 years and then to the use of the husband and wife and the heirs of the wife The Lease was made and then the husband dyed In this case the Court held that the wife should be concluded and should not avoid this Lease but shall hold under the Recovery so as the Lease precedes her Estate But Quaere what remady she shall have for the Rent which was reserved before her Estate by the use was created Dyer 290. See Co. 2. Part 57. Beckwiths Case 5. Replevin for the taking of three Cowes apud Rowdham the Defendant justifies for damage Feasant as in Freehold the Pâ—aintiff traverses the Freehold and thereupon being at Issue a specia Verdict was found Where the Case appeared to be One William Brown Father to the Defendant being seised of this Land in Fee having Issue the Defendant his Son and Heir Thomas Brown his second son and Richard a third by his Will in writing devised this Land to Thomas his son and his Heirs for ever paying to his brother Richard 20 l. at his age of 21 years And if Thomas dyed without Issue living William his Brother That then William his Brother should have those Lands to him and his heirs and assigns for ever paying the said Summe as Thomas should have paid Thomas enters and suffers a common Recovery with a single voucher to the use of himself and his heirs and afterwards deviseth it to the wise of Edward Pells the Plaintiff and her heirs and dyes with out Issue living the said William Brown who entred upon Edw. Pells and took the Distress Et si c. This Case was twice argued at the Barre and afterwards at the Bench and the matter was divided into three Points 1. Whether Thomas had an Estate in Fee or in Fee tayl only 2. Admitting he had a Fee Whether this limitation of the Fee to William be good to limit a Fee upon a Fee 3. If Thomas hath a Fee and William only a possibility to have a Fee Whether this Recovery shall barr William or that it be such an Estate as cannot be extirpated by Recovery or otherwise To the third Point Dodderidge held That this Recovery should barr William for he had but a possibility to have a Fee and as it were a contingent Estate which is destroyed by this Recovery before it came in esse for otherwise it would be a mischievous kind of Perpetuity which could not by any means be destroyed And although it was Objected That a Recovery shall not barre but where a Recovery in value extends thereto as appears Co. lib. 1. Capell's Case That a Rent-charge granted by him in remainder was bound Yet he held That this Recovery destroying the immediate estate all Contingencies and dependencies thereupon are bound and a Recovery shall bind every one who cannot falsifie it And he who hath this possibility cannot falsifie it therefore he shall be bound thereby But all the other Justices were herein against him That this Recovery shall not bind for he who suffered the Recovery had a Fee and William Brown had but a Possibility if he survived Thomas and Thomas dying without issue in his life no Recovery in value shall extend in value thereto unless he had been party by way of Vouchee And then it should for by entring into the Warranty he gave all his possibility Therefore they agreed to the case which Davenport at the Barre cited to be adjudged 34 Eliz. where a Mortgagee suffers a Recovery that shall no bind the Mortgagor but if he had been party by way of Voucher it had been otherwise and here is not any Estate depending upon the Estate of Thomas Bray but a Collaterall and meer Possibility which shall not be toucht by a Recovery And if such a Recovery should be allow'd then if a man should devise that his Heir should make such a payment to his younger sons or to his Executors otherwise the Land should be unto them if the Heir by Recovery might avoid it it would be very mischievous and might frustrate all devices and there is no such mischief that it should maintain Perpetuities for it is but in a Particular case and upon a mere contingency which perchance never may happen and be avoided by joyning him in the Recovery who hath such a contingency And on the other part it would be far more and a greater mischief that all Executors devises should by such means be destroy'd And Hutton in his Argument put this Case If a man gives or devises Land to one and his heirs as long as J. S. hath Issue of his body he by Recovery shall not bind him who made this Gift without making him a party by way of Vouchee for a Recovery against Tenant in Fee-simple never shall bind a collateral interest title or possibility as a Condition or Covenant or the like Wherefore they all besides Dodderidge held that this Recovery was no barr But it was adjudged for the Defendant Pells and Brown Hill 17 Jac. B.R. Cro. 2 Part 590. 6. In Pasch 24 Eliz. C. B. A Feme Sole was seised of a Mannor to which were three Copyholds one of the Copyholders did intermarry with the woman and afterwards he and his wife did suffer a Common Recovery of the Mannor to the use of themselves for their lives and afterwards to the use of the Heirs of the wife In this case it was agreed by the whole Court That the Copyhold was extinct And said by the Court That if a Copyholder will joyn with the Lord in a Feoffment of the Mannor thereby the Copyhold is extinct and so if he accept a Lease of his Copyhold Godb 11. Mich. 29 Eliz. C.B. Godb. 101. accord 7. Husband and wife are Joynt-Tenants for life the remainder to
Heirs of the said V. W. for ever And the true intent and meaning of these presents and of all the Parties hereunto upon the execution of these presents is and the special trust and confidence in them the said A. B. J. P. and J. G. their Executors Administrators and Assigns hereby reposed is hereby declared and agreed to be That if in case the said V. W. shall depart this life having no Issue male of his body upon the body of the said F. lawfully begotten or without leaving the said F. with Child of a Son who hereafter shall be born alive and having at the time of his decease one two or more Daughters of his body on the body of the said F. lawfully begotten then living or if there be one onely Daughter if she be not preferred in Marriage with Eight Thousand pounds portion or if there be two such Daughters and if they be not severally preferred in Marriage with One thousand pounds a piece or if there be three such Daughters if they be not preferred in Marriage with portions of One thousand Marks a piece as is hereafter mentioned Or if the said V. W. leaving the â—nd F. with Child of one or more Daughter or Daughters who sâ—all after be born alive that then the said A. B. J. P. and J. G. the Survivor and Survivors of them his and their Executors Administrators and Assigns out of the Rents Issueâ— and Profits of the said Messuages Cottages Closes Pastures Meadows Tenements Hereditaments and other the premises with the appurtenances so to them limited and appointed for Lives and Years as aforesaid shall raise and levy as soon as conveniently may be found for the portion of such Daughter if there be but one the sum of Two Thousand pounds of lawful c. to be paid to such onely Daughter her Executors and Assigns at her age of Eighteen years or day of Marriage which shall first happen or as soon as the said sum of Two Thousand pounds can be raised And if there shall be two such Daughters the sum of One Thousand pounds a piece Or if there be three Daughters then for the portions of the three Daughters the Sum of One thousand Marks a piece of current c. to be paid to them their Executors and Assigns severally and respectively at their several and respective ages of Eighteen years or dayes of Marriage which shall first happen or as soon as the same can be conveniently raised And upon this further trust and confidence and to the intent and purpose that if it shall happen the said V. W. die leaving one only Daughter or two or three Daughters of his Body on the Body of the said F. begotten then living or afterwards to be born as aforesaid And that the said onely Daughter shall happen to depart this Life before she accomplish her age of Eighteen years or day of Marriage or if there fortune to be two or more Daughters then if both or all the said Daughters die or depart this Life before either or any of them accomplish their several ages of Eighteen years or be married as aforesaid then the said several sums of money intended for the portions and advancements of such Daughter or Daughters as aforesaid or so much thereof as shall be raised or levyed out of the Rents Issues and Profits of all or any the Premises all Charges and Expences being defrayed wherein full and liberal allowance shall be made and given shall be satisfied or paid to such person or persons as the said V. W. his Heirs or Assigns by any writing under his or their Hand subscribed in the presence of two or more credible Witnesses shall limit and appoint And in default of such limitation and appointment to the Executors or Administrators of the said V. W. and his Heirs And upon this further trust and confidence and to the intent and purpose that the said A. B. J. P. and J. G. and the Survivor and Survivors of them his and their Executor and Assigns shall out of the Rents Issues and Profits of the aid Messuages Cottages Lands Tenements Hereditaments â—nd Tremises so to them limited for raising of portions as aforesaid with their and every of their appurtenances levy and pay or cause to be levied and paid to for the maintenance of such Daughter or Daughters as aforesaid if there be but one only Daughter the sum of 50 l. per annum and if there be two or three Daughters the sum of 30 l. per annum a piece until such Daughter or Daughters respectively shall attain to her or their age of Eighteen years or shall be married and her or their portions paid as aforesaid Provided alwayes that it is the true intent and meaning of all the said Parties to these presents That if the said V. W. shall happen to depart this Life without any Issue Female of his Body upon the Body of the said F. begotten or without leaving the said F. with Child of one or more Daughters that shall be after born alive That then the Estate and Estates so limited as aforesaid to the said A. B. J. P. and J. G. for their Lives and after their Deceases to their Executors and Administrators for Sixty years shall cease determine and be utterly void Provided also that from and immediately after such time as the aforesaid A. B. J. P. and J. G. their Executors or Assigns shall or might have limited and raised the said several sums for portions and present maintenance of such Daughter and Daughters as aforesaid that the said Estate for Lives and Years limited to them in trust as aforesaid shall cease determine and be utterly void and the said Messuages Cottages Lands and Tenements and all and singular other the premises so to them limited as aforesaid in trust shall immediately go and be to such person or persons to whom the Rerversions or Remainder of the said Messuages Lands and Premises shall belong and appertain And the said V. W. for himself his Heirs Executors Administrators and Assigns and every of them doth covenant grant and agree to and with the said A. B. J. P. and J. G. their Heirs Executors Administrators and Assigns and to and with every of them by these presents that the said Messuages Cottages Closes Meadows Pastures Tenements and Hereditaments and all and singular other the premises before by these presents 〈◊〉 â—ectively limited and appointed for the Joynture of the said 〈…〉 are and so from time to time and at all times hereafter 〈…〉 notwithstanding any act or default of the said V. W. 〈…〉 Assigns or any of them shall remain continue and be 〈…〉 F. and her Assigns of the clear yearly value of c. over 〈…〉 all Charges and reprizes Provided alwayes and upon 〈…〉 condition and to the further use intent and purpose 〈…〉 said V. W. happen to depart this Life leaving a Son of his Body on the Body of the said F. lawfully begotten and the said F. do him
to the said J. G. all such Bonds and Obligations wherein any person or persons are or stand bound unto the said A. for touching and concerning the portions of the said Children or otherwise as shall come to the hands and possession of the said R. L. and make seal and deliver to the said J. G. such Letter or Letters of Attorney for the recovery of the sums of money contained in the same Bonds and Obligations or any of them as by the Council learned of the said J. G. shall be thought meet and convenient and by the said J. G. required for and to the use of the said Children And that he the said R. L. shall not release or discharge the said Bonds or Obligations or any of them without the consent and agreement of the said J. C. nor revoke or countermand the said Letter of Attorney And that the said R. L. shall permit and suffer the said A. and give his assent that she shall make a Will and by the same to give and bequeath at her liberty and pleasure the sum of 500 l. and shall not countermand or revoke the same And that if it shall happen the said A. to die leaving the said R. L. that he the said R. L. his Executors Administrators or Assigns shall well and truly content c. or cause c. the said Legacies or so much of them as shall not exceed the said sum of 500 l. within one year next after the decease of the said A. at the Mansion-house of the said R. L. in T. asoresaid And further it is covenanted granted c. between the c. and the said J. G. for himself his Heirs Executors Administrators and Assigns doth covenant and grant to and with the said R. L. his Executors and Administrators in manner and form following that is to say That he the said J. G. or his Assigns shall yearly from and after the said Marriage so had and solemnized as aforesaid and during so long time as the said Children or any of them shall be at the finding and providing for of the said R. L. well and truly content c. or cause c. to the said R.L. or his Assigns for every of the said Children so being c. the yearly sum of c. at the Feasts of c. by even and equal portions out of the increase and profits of their respective portions as aforesaid and that he the said J. G. shall imploy and bestow the residue of the increase and profits which shall come or grow of the said portions or stocks from time to time in such sort and manner as the said A. shall appoint for the further benefit and condition of the said Children and then he the said J. G. shall from time to time when he shall be thereunto required by the said A. yield and make unto the said A. a just true and perfect account of the said increase or profits coming or arising of the portions aforesaid In witness c. A Condition where one buyeth Lands the Seller is bound that the Land is free from Incumbrances THe Condition c. That whereas the within-bonnden A. B. hath bargained and sold unto the within-named C. D. and his Heirs for ever all that his Messuage or Dwelling-house Lands Feedings Meadows Pastures Rents Profits and other Hereditaments whatsoever thereunto belonging with their appurtenances et lying and being in the Town and Field of c. in the County of c. If therefore the said Messuage or Dwelling-house Lands and all other the premises and every part and parcel thereof at the day of the date within written be clearly discharged of and from all and all manner of former and other Gifts Grants Leases Bargains Sales Joyntures Dowers Rights and Titles of Dower Rents arrerages of Rent Statutes-Merchant and of the Staple Feoffments Annuities c. and of and from all other Titles Charges and Incumbrances whatsoever had made done committed or suffered or to be had made done committed or suffered by the said A. B. his Heirs or Assigns or by any other person or persons by his their or any of their means act title consent assent or procurement the Rents and Services which from the day of the date within-written shall grow due to be paid and performed to the chief Lord or Lords of the Fee or Fees of the premises only excepted That then c. or else c. A Condition for a Brewers Clerk THe Condition of c. That whereas the within-named J. D. hath before the day of the date within-written entertained into his Service the within-bound J. H. to serve in the room place or office of a Dray-Clerk or Beer-Clerk If therefore the said J. H. doth and shall during the time of his service in the said Office or Place carefully and diligently use and imploy himself and his best endeavours in the said Room or Office and do once in every week weekly during the continuance of his service in the said Office make and give to the said J. D. his Executors or Assigns a true just and perfect accompt in writing at the Messuage or Beerhouse of him the said J. D. situate c. of all such Beer Goods and Money of the said J. D. as by any wayes or means shall come to the Hands Charge Custody or Possession of the said J. H. And likewise do from week to week upon every Monday weekly during the said term at the place aforesaid content and pay unto the said J. D. his Executors or Assigns all such sum and sums of Money as the said J. H. shall have received of any person or persons whatsoever due or any wise belonging unto the said J. D. his Executors or Assigns And further if the said J. H. do not deliver on trust to any Customer or Customers or any other person or persons now not served by the said J. D. above four Barrels of Beer at the most before such time as he shall have made the said J D. acquainted therewith and of what estate and condition all and every such new Customers are of and also shall have the consent of him the said J. D. thereunto And further if the said J. H. do not depart from the service of him the said J. D. his Executors Administrators or Assigns before such payment and satisfaction shall be made by him the said J. H. unto the said J. D. his Executors Administrators or Assigns of all such Goods Arrerages Debts Summe and Summes of Money as he the said J. H. shall be found to be indebted unto the said J. D. his Executors or Assigns or any of them and if in case it shall happen the said J. H. to die or depart this life during the continuance of the said Office or Place of Beer-Clerk to the said J. D. his Executors or Assigns Then if the Executors Administrators or Assigns of the said J. H. do or shall within one moneth next ensuing after the decease of the
c. to Eliz. her Sister in trust c. THis Indenture Tripartite c. between T. Geo. Esquire Son and Heir of Sir Tho. G. of c. Knight of the first part Ph. E. single woman and Daughter of c. of the second part and Eliz. B. Sister of the said Ph. B. of the third part witnesseth That whereas there is a Marriage agreed upon and shortly by Gods Grace to be had and solemnized between the said T. G. and the said Ph. B. and whereas the said P. B. is and standeth possessed and interessed in certain Leases Moneys Jewels Debts Goods and Chattels and whereas also the said T. G. by reason of the present distractions of the times is not able presently to assure unto the said P. B. such Joynture as is agreed on to be assured to her witnesseth now further this present Indenture that it is covenanted granted condescended unto and agreed upon by and between all the said Parties to these presents in manner and form following that is to say the said P. B. by and with the consent and good will of the said T. G. Party to these presents testified by being party and putting his Hand and Seal to one or more parts of this Indenture hath granted aliened assigned and set over and by c. unto the said Eliz. B. all such Mannors Messuages Lands Tenements Rents Services and Hereditaments whatsoever situate lying and being in c. or else-where in England whereof or wherein she the said Phil. is or standeth possessed or interessed and all her Estate Right Title Interest Claim and Demand whatsoever in and to the same Mannors Messuages Lands Tenements and Premises and every or any part thereof together with all Leases Deeds and Writings touching the same premises and every part thereof To have and to hold the said Mannors Messuages Lands Tenements and Premises and every part and parcel thereof with the appurtenances to the said Eliz. B. her Executors Administrators and Assigns from henceforth for and during all the respective time and times term and terms as she the said P. B. hath or ought to have thereunto to come and unexpired and also the said Ph. B. by and with the like consent and agreement of the said T. G. party to these presents testified as aforesaid hath granted and delivered and by c. to the said Eliz. B. all her Jewels Moneys Bonds Specialties Debts and other Goods and Chattels whatsoever before hereby mentioned meant or intended to be granted and delivered and every part and parcel thereof with the appurtenances to the said Eliz. B. her Executors Administrators and Assigns to the uses intents or purposes hereafter in these presents mentioned and declared and it is expressed and declared to be the true intent and meaning of all the said parties to these presents that the several Grants herein before made to the said Eliz. B. are so to her made upon trust and confidence in her reposed as well by the said T. G. Party to these presents as the said P. B. that in case the said Marriage take effect and that the said T. G. shall during the Coverture between him and the said Ph. cause to be assured by good and sufficient wayes and means in the Law to the said Ph. for her life and after her death to the Heirs of her body by the said T. party c. to be begotten the Mannors Messuages Lands Tenements and Hereditaments situate lying and being in the Counties of Wilts and Gloucester or either of them of the clear yearly value of 250 pounds of c. over and above all Rents Charges Deductions and Reprizes or that after such Marriage solemnized if the said Ph. shall happen to depart this transitory life before the said T. G. and before such assurance made as aforesaid which shall first happen she the said Eliz. B. her Executors Administrators and Assigns shall and will upon the reasonable request and at the costs and charges in all things of the said T. G. his Executors c. not only grant assign and set over to the said T. G. party c. his Executors c. all the said Mannors Messuages Lands Tenements Hereditaments and Premises before hereby granted or assigned by the said Ph. B. to the said Eliz. B. as aforesaid for all such time and times term and terms respectively as shall be then therein to come and unexpired discharged of all other Grants and Incumbrances made or done by the said Elizabeth except such as she shall make or do by consent of the said T. G. his Executors c. but also grant and re-deliver to the said T. G. his Executors or Assigns all such Moneys Jewels Bonds Specialties Debts and other Goods and Chartels whatsoever as in the mean time shall come to the hands of the said Eliz. her Executors c. by force of these presents and which shall remain or be in her or their hands custody or possession by the true meaning hereof and also that in such case she the said Elizabeth her Executors c. shall from time to time in the mean time after Solemnization of the said Marriage pay and deliver to the said T. G. all such Rents Issues and Profits of the said Mannors Lands Tenements Moneys and Debts as shall come to her or their Hands or Custody and also upon further trust and confidence in the said Elizabeth B. reposed that in case the said Marriage take effect and the said T. G. happen to depart this transitory life before the said P. B. and before he shall have assured or caused to be assured to the said P. B. any Mannors Messuages Lands Tenements or Hereditaments of the value aforesaid and in form aforesaid that then in such case she the said Elizab. B. her Executors c. shall and will not only re-grant re-assign and set over to the said Ph. B. all the said Mannors Messuages Lands Tenements and Premises before hereby granted or assigned by the said Ph. B. as aforesaid for all such time and times term and terms respectively as shall be then therein to come and unexpired discharged of all other Grants and Incumbrances made or done by the said Elizabeth B. her Executors c. except such as she shall make or do by the consent of the said P. H. but also re-grant and re-deliver to the said Phil. her Executors or Assigns all such Moneys Jewels Bonds Specialties Debts and other Goods and Chattels whatsoever as in the mean time shall come to the Hands or Custody of the said Eliz. her Executors or Assigns by force of these presents and which shall remain or be in her or their Hands Custody or Possession by the true meaning of these presents and the said T. G. for himself his Executors c. doth covenant promise grant and agree to and with the said Eliz. B. her Executors c. by these presents that neither he the said T. G. nor his Heirs c. nor any other person or persons claiming
which was to be paid every half year unto the said B. for and during her natural life in case the said F.L. lived who is Survivor and after her decease the said Fourscore pounds per annum to be paid to the said Defendant F.L. for and during his natural life and to such women as he should take to wife in case the said F. married and died before such a wife for and during her natural life for and in lieu of her Joynture with divers other covenants and conditions contained in an Indenture made the c. between the said B.L. F.L. on the one part and the said W.C. on the other part to which this Defendant in all things referreth himself as therein more at large the same doth and may appear And amongst the rest it is covenanted and agreed between the parties to the said Indenture that after the death of the said F. and of his said wife if he did marry then the said One thousand pounds to remain to the issue of their two bodies lawfully begotten and if they have no issue then living then the said One thousand pounds is to go according to the true intent and meaning of the said last recited Indenture and if the other Defendant R.L. this Defendants second Brother should happen to die surviving the said F. then the One thousand pounds is to remain in the hands of the said F for ever and for the better securing of the payment of the said Fourscore pounds per annum and of the said One thousand pounds the said W.C. in and by the said last recited Indenture did grant bargain sell enfeoff and confirm unto the said B. this Defendants mother and to the said F.L. his heirs and assigns for ever all that piece or parcel of pasture-ground lying in C. aforesaid commonly called or known by the name of c. then in the tenure or occupation of this Defendant to which said Indenture this Defendant referreth himself as will more at large appear And this Defendant saith that the said W.C. well knowing that he was thereunto bound by this agreement during his life-time did justly and truly pay the said Fourscore pounds per annum unto the said B. this Defendants mother by half-yearly payments during her life-time who dyed about c. since c. and by and after the decease of the said F. L. this Defendants brother by the advice and counsel of the Complainant himself by this Deed of Assignment with a Letter of Attorney bearing date the c. did for and in consideration of the sum of Eight hundred and threescore pounds part of the said purchase money which the said F.L. did agree to pay unto this Defendant in respect this Defendant joyned in the sale of the said Mannor Lands and Premisses and did enter into a Bond of Fourscore pounds for payment thereof and of other monies to this Defendants brother accordingly did grant and assign unto this Defendant and his heirs and assigns the said Fourscore pounds per annum during the life of this Defendants said brother F. as in and by the said Deed of Assignment relation being thereunto had at large the same doth and may appear And this Defendant saith that after the said Assignment so made unto this Defendant the said W.C. did by himself and his servant and other on this behalf durinig all his life-time pay the said Fourscore pounds per annum to this Defendant and this Defendant is perswaded had not the said W. C. well known that the said Fourscore pounds per annum was due to have been paid by him that he would not have paid the same to this Defendant And this Defendant saith that after the death of the said W. C. I.C. his son and heir or some other on this behalf did pay the same unto this Defendant and this Defendant believeth the Complainant hath some conveyance of the said premisses from the said I.C. but for what consideration this Defendant knoweth not and saith that the Complainant himself sithence the said purchase hath paid the same Defendant and therefore this Defendant conceiveth that he is unjustly troubled touching the premisses And this Defendant saith that therefore under favour this Defendant conceiveth that the said Fourscore pounds per annum and also the said one thousand pounds secured by part of the premisses bargained and sold as aforesaid it being so long before the Statute made for reducing interest money from Eight to six in the hundred and the same Fourscore pounds per annum being as this Defendant conceives due as parcel of the Contract for the said Lands assigned over to this Defendant for great and valuable considerations the same shall not now be insringed broken or repealed for the causes in the Bill mentioned or for any causes whatsoever the rather for that this Defendant and his brother upon the confiderations and conditions aforesaid did bargain and sell the said Mannors Lands and premises at an undervalue without that that any other matter or thing in the said Bill of Complaint contained material or effectual in the Law for this Defendant to make answer unto and not herein before sufficiently answered unto confessed and avoyded traversed or denied is true in such manner and form as in the said Bill is alledged and this Defendant praveth to be dismissed out of this Honourable Court with his reasonable costs and charge in this behalf most wrongfully sustained The beginning and conclusion of a Bill in Chancery To the Right Honourable Sir O.B. Knight and Baronet Lord Keeper of the great Seal of England SHeweth unto your Lordship your Orator E.L. of the City N. in the County of W. Gentleman and M. his Wife whereas c. The conclusion May it therefore please your Lordship to grant to your said Orator his Majesties most gracious Writ of Subpoena to be directed unto the said W.C. thereby commanding him or them and every of them at a certain day and under a certain pain therein to be limited personally to appear before your Lordship in this High and Honourable Court of Chancery to answer the premisses and further to stand unto and abide such order direction and award concerning the same as unto your Lordship shall seem meet and your Orator shall daily pray for the long continuance of your Lordships prosperous estate A Lease of a Mill. THis Indenture made c. between Sir T C. of c. Knight and L. his wife of the one part and T.A. of c. of the other part witnesseth That the said Sir T.C. and L. for and in consideration of the rent and covenants hereafter in these presents expressed and also for divers other reasonable considerations them thereunto moving have demised granted and to farm-letten and by these presents do for them their c. demise grant and to farm let unto the said T.A. all that their Grist Water-Mill and Mills being two Grist Mills under one Roof commonly called or known by the name of S.
she the said A. Lady D. shall in her life-time under her hand or by her last Will in writing appoint or give consent unto And the said A. Lady D. doth hereby also declare that her intent is in case she should not in her life time as aforesaid or by her last Will make any Declaration of her intent for the disposing of the premisses or in case she the said A. Lady D. shall make such Declaration for part and not for other part then the said parties trusted and every of them shall respectively convey their several Estates in the premisses or of so much thereof as she the said A. Lady D. shall not so make a Declaration of to W. D. Esq second Son of the said A. Lady D. and to his Heirs Executors and Assigns according to the intent of these presents and shall alwayes permit her and her assigns as aforesaid to receive and enjoy all and every the Rents and Profits of the same In witness whereof c. A Letter of Attorney to demand a Rent according to a Lease TO all Christian People to whom c. E.F. of c. and J. P. of c. send greeting in our Lord God everlasting Whereas the said E. F. and J. B. by their Indenture dated the fifth day of c. did demise and grant unto J. B. of C. in the said County of B. Yeoman and his Assigns all that Wood-ground with the soyl thereof called by the name of W. Wood containing by estimation 60 Acres were the same more or lesse with the appurtenances thereunto belonging lying in the Parish of C. aforesaid to hold the demised premisses to the said I. B. and his Assignes from the Feast of the Birth of our Lord God then last past for the term of Twenty one years from thence next ensuing by and under the yearly Rent of Thirty pounds six shillings and four pence payable to the said Edmund F. and J. P. at the Feast of the Nativity of St. John the Baptist and the Birth of our Lord God by equal portions at the Font-stone in the Temple-Church London with this special Proviso or Condition in the said Indenture contained That if the said yearly Rent or any part thereof should be unpaid in part or in all at the place aforesaid by the space of ten dayes next after either of the said Feasts or dayes of payment the same being lawfully demanded that then and at all times afterwards it should be lawfull for the said E. F. and J. P. and their assigns to re-enter upon all the premisses and the same to have again retain repossess and enjoy as in their former estate and right as by the said Indenture amongst other things herein contained appeareth Now know ye That the said Edmund F. and J. P. have and hereby do depute constitute and appoint and in their stead and place put their well-beloved Friend J. H. of L. Esquire their true and lawful Attorney for them and in their names to ask and demand according to the Proviso in the said Indenture contained the half-years Rent that shall grow due upon the said Demise by the said J. B. or his Assigns being the sum of Fifteen pound three shillings and two pence at the Feast-day of the Birth of our Lord God now next ensuing And also they the said Edmund F. and J. P. do hereby authorize and appoint the said J. H. to demand the said Rent and Sum at the time and place in the Proviso in the said reciâ—ed Indenture mentioned for payment thereof according to the Proviso or the intent thereof And the said E. F. and I. P. do hereby further authorize and appoint the said J. H. Authority to demand a Rent Toties quoties from time to time and at all times during the continuance of the said Term that shall be unexpited and to come at or after the said Feast-day of the Birth of our Lord God now next ensuing for them and in their names to ask and demand on the tenth day next after either of the said Feasts or dayes of payment according to the Proviso in the said Indenture contained all such Rent and Rents that shall grow due to be paid upon the said Demise at either of the said Feasts by the said J. B. or his Assigns at the time and place in the Proviso of the said recited Indenture mentioned for payment thereof according to the purport and form of the same ratifying and allowing all and whatsoever the said I. H. shall do in the premisses as if they themselves were personally present and did demand the same In witnesse c. A Letter of Attorney to re-enter upon the former Letter of Attorney TO all Christian People to whom c. E. F. of c. and I.P. of c. send greeting Whereas c. reciting the Indenture mentioned in the former Letter of Attorney and then reciting That whereas the said E. F. and I. P. by their Letter of Attorney dated c. did authorize and appoint J. H. of c. to ask and demand in their names and to their use the half-years Rent c. viz. the summe of 15 l. 3 s. 2 d. which was then to grow due and payable at the Feast day of the Birth of our Lord God then next ensuing and for non-payment whereof the said E. F. and I.P. by a Proviso in the said recited Indenture might lawfully re-enter if the same should be behind by the space of ten dayes after the said Feast according to the form and effect of the said recited Indenture and Proviso And whereas the said J.H. did demand the said half-years Rent of 15 l. 3 s. 2 d. due and payable by vertue of the said Proviso and the power to him given by the Letter of Attorney aforesaid Yet notwithstanding the said I. B. and his Assigns nor either of them have not paid the said half-years Rent according to the reservation and Proviso of the said recited Indenture Now know ye That the said E. F. and I. P. have and hereby do depute constitute ordain and appoint their 〈◊〉 Well-beloved Friend J. H. their true and lawfull Attorney for them and in their names and to their use into all and every the premisses demised by the said recited Indenture unto the said I. B. and his assigns to re-enter and the same to have detain and keep for them and to their use according to the power and condition in the said recited Indenture mentioned ratifying allowing ut supra in the former In witness c. An Indenture of Covenants declaring that a mans name is but only used in Trust in the taking of an Assurance THis Indenture made c. between T. B. of the one part and A. B. of c. of the other part witnesseth Whereas T.H. by his Indenture of Bargain and Sale bearing date c. See down the Consideration and Plaint made between c. for the consideration therein mentioned did grant bargain and
Covenant and be returned before it 5. If a Writ of Covenant be brought against the Tenant and a Writ of Entry against the Demandant then the Writ of Covenant must bear date and be returned before the Writ of Entry and this is called the double Voucher 6. That all Writs of Entry must be signed by the Kings Attorney before they be sealed and Fines to the King are to be paid upon them as upon Writs of Covenant The Warrant of Attorney by the Clerk of the Warrants and the Writ of Entry Summons and Seisin are to be returned and filed with the Custos Brevium and the Judgment to be entred by the Prothonorary 7. That in a Recovery with a double Voucher the fine must be sued first to make him Tenant to the Writ of Entry brought either by right or wrong for every Writ of Entry must be brought alwayes against him that is Tenant of the Freehold of the Land demanded at the time of the Writ brought he must be at least Tenant for life or a Disseisor of the Land whereof the Recovery is had for the Estate of the Tenant in tail which is vouched is barted in respect of the Assets onely which are or may be recovered in value end of execution sued by the Tenant against him Plow 11. Dyer 252. And if the Tenant have but an Estate for life or in Dower or by Curtesie in these cases to have a good Recovery such Tenant is â—o make a conditional Surrender of his Estate to him in Reversion or â—â—mainder that he may be a perfect Tenant to the Inheritance and then to bring a Writ of Entry against him and after the Recovery is executed the particular Tenant for breach of the Condition may enter and enjoy his Estate notwithstanding such Surrender A President for a Lease to make a Tenant to the Praecipe THis Indenture made c. Between A. B. of c. of the one part and C. D. of c. of the other part Witnesseth That whereas the said A. B. doth hold one Messuage c. in D. in the County of M. the immediate Reversion or Remainder whereof doth belong to the said C. D. and his heirs or to the heirs of his body lawfully begotten for ever Now the said A. B. for the making and perfecting of some assurance shortly to be made of the same Messuage c. by way of common Recovery Hath Granted and Surrendred and by these presents Doth Grant and Surrender unto the said C. D. and his heirs upon the condition herein after mentioned all that the said Messuage c. and all the estate right title and interest of the said A. B. therein To have and to hold to the said C.D. and his heirs upon condition That if the said C.D. do not pay or cause to be paid to the said A. B. the Sum of 1000 l. of lawful English money upon the first day of December next comeing after the date hereof That then and from thenceforth this Grant and Surrender shall be utterly void and it shall be lawfull for the said A. B. into the same Messuage c. to re-enter and the same to repossess and enjoy as in his former Estate In witness c. As to the Warrant of Attorney and Dedimus Poâ—estatem take this First That in the suffering of Recoveries the Tenants and Vouchees do most commonly appear in person But if they cannot or will not then they may make an Atturney And in that case there must be a Conusance for a Warrant of Atturney taken to authorize the Atturneys and a Dedimus Potestatem to some to take it in this manner Lond. ss Praec A. B. et C. uxor ejus quod juste c. redd D. E. Manerium de M. cum pertin c. quae clamâ—ee â—us et haered suam et in quae tidem A. B. non habent ingress nisi post disseâ—â—nam quam H. H. injuste et sine judicio secit praefat D infra 30 annâ—s jam ultim clapsos c. â—t dic c. Lond. ss A. B. et C. po lo. suo W. W. et R. R. Attornat suos conjunctim divisim versus D.E. de placito terrae Lond. ss M. M. Gen. quem A.B. et C. vocant ad warrant po lo. suo I. I. et L. L. Attornat suos conjunctim et divisim versus D. E. de placito terrae Lond. ss G. W. Gen. Quem M. M. voc inde ad warrant po lo. suo R. G. R. S. Attornat suos conjunctim divisim versus D. E. de placieo terrae Secondly That in these cases there must be two Atturneys at the least and to give them an authority joyntly and severally that if one of them dye before the Recovery be suffered the other may have power to do it And in the Counties Palatine it is usuall to put one Atturney and one of the Justices Clerks Thirdly When this is done the Recoveries may be suffered by the Atturneys without the personal appearance of the parties and such Recovery is good only it will require a longer time to perfect it for in this case there must go forth a Summoneas ad warran which must have Nine Returns ere it can be perfected Fourthly The Recovery thus suffered by the parties in person or by their Attorneys the same must be entred by one of the Clerks of the Court of Common Pleas upon the Rolls of the same Court there to remain upon Record The Forms of Recoveries suffered in the Common Pleas Court or elsewhere are well known to Clerks there Practising However I will give you one excellent President of a Recovery suffered in the Court of the Hustings at London and likewise the forms of Indentures to limit and declare the Uses of Recoveries A President of a Recovery suffered in the Hustings Court London with double Voucher PLacita terrae tent in Hustingo in Guyhald ' Lond ' die Lunae proxime post festum sancti Johannis ante Portam Latinam Anno Regni nostri Jacobi dei gratia Angl ' Scot ' Franc ' Hibern ' Regis Pidei Defensor c. viz. Angl ' Franc ' Hibern ' 18. et Scotiae 53. Ad hunc Hustingum ven hic in propria persona sua D.W. et protulit hic in Cur. brev dicti domini Regis nunc de Recto Paten Majori Vicecomiti London directâ— in haec verba scilicet Jacobus Dei gratia Angl ' Scot ' Franc ' et Hibern ' Rex Fidei Defensor c. Majori et Vice-Com Lond. salutem Praecipimus vobis quod sine dilatione plenum rectum teneatis D. W. de 12 Mess 2 Gardinis et 5 Curtilagiis cum pertin in London quae clamat tenere de Nobis per liberum servitium unius denarii per annum pro omni servitio Quae R. V. ei deforc ne amplius inde clam audiamus pro defeâ—n Recti Teste Meipso apud Westm 4 die Maii Anno regni nostri Angl '
at the common Law falfifie 26 H. 8.2 for having but a Chattel derived out of a freehold there is no reason he should falfifie a Recovery which draweth the Fees simple out of the Lessor Also the present Estate upon which the Lease depends being destroyed the Lease must needs be extinct Of Bargaine and Sale by Deed. A Bargain and Sale is a real contract upon valuable considerations for the passing of Lands Tenements or Hereditaments by Deed indented and inrolled within six moneths after the date of it without Livery of seisin or Atturnment of Tenants so as be by Deed indented sealed and inrolled either in the County where the Land lyes or within one of the Kings Courts of Record at Westm within six moneths after the date as we said before Plowd 307. Co. 2 part Inst 672. Concerning which I will give only a few Generals 1. That if one for money grant a Rent without any word of Bargaine and Sale and the Deed be inrolled the Rent will pass without atturnment Cro. 3. part 166. 2. That Lands in London bargained and sold by Tenant in tayle and the Deed delivered after the same year he made Livery to him the Lands pass by the bargain and Sale Yelverton 123 124. 3. That as the very words Bargaine and Sale are not needful to make some Land pass by way of Bargain and Sale where there is an inrolment So inrolment is not necessary in all cases As where a reversion is granted for years only there neither inrolment not atturnment are necessary Cook 8.93 Foxes Case 4. That the makers of the Act 27 H. 8. chap. 10. did not expect that any Land after that Act should pass by way of Limitation of use save only uses upon Bargain and Sale which they did in the same Parliament allow after inrolment And they did presume that little Land would pass that way for that the Bargaine being in the Post might not vouch by force of any warranty annexed to the Estate of the Land Co. 1.120 in Chudleighs Case 5. That to make a good Estate for years by way of Bargain and Sale for Land to pass this may be without inrolment of the Deed But to make a good Estate of the Freehold or Inheritance of Land by way of Bargain and Sale it must have the Requisites of a Deed. viz. 6. It must be by Writing and not by Print or Stamp in Parchment not in Paper nor upon Lead Wood or the like Co. 5.20 2 part Inst 672. 7. That by the Common Law Land might have passed by word for the use only past but now it must be by Deed save only in some Cities Villages and ancient Burroughs where it passeth by Custome Dyer 229. 8. That if a Father in consideration of 10 l. paid to him by his Son doth covenant to stand seised to his use no use will arise without Inrollment Coo. 7.40 9. That the Inrollment upon such a Deed so as to make the Estate to pass must be in Parchment Co. 2. Part Inst 673. 10. The inrolled Deed must be indented for if it be by Deed-Poll the Estate will not pass Dyer 229. The Six moneths given for Inrollment are to be accounted 1. From the date and not from the time of the delivery of the Deed and from the date and from the day of the date is all one 2. After the account of 28 dayes to the moneth and no more 3. The day of the date to be taken exclusive Moors Rep. 40. Case 128. and yet if it be inrolled the same day it bears date it is good If it chance which is very seldome that it have no date then the day of the delivery shall be taken for the date and the six moneths to be cast from thence Mich. 37 38 Eliz. Franklin and Garter's Gase Co. 2. part Inst 674. And if the Deed be not thus inrolled it is of no force at all Co. 5.1 Dyer 218. Co. 11.48 Moors Rep. 41. Case 148. This kind of assurance by Bargain and Sale thus perfected by Inrollment will as effectually transfer the Land as any other Conveyance and therefore the Bargainee of a Reversion albeit he may not have benefit of a Condition upon demands of Rent without giving notice of the bargain and sale to the Lessee and albeit that A. the Conusee by a Fine of a Reversion before Attornment of the Tenant bargain and sell the Reversion to B and that in this case B. cannot distrain for his Rent until he can get Attornment of the Tenant yet the Bargainee shall have benefit of a Condition of an Assignee within 32. H. 8. And it seems he may vouch by force of a warranty annexed to the estate of the Land for he is in partly in the Per and partly in the Post Co. 8.94 3.62 5.113 I will Illustrate this Point only with three or four Cases and then give you Presidents Case 1. Winchcombe having Issue two Sons conveyed a Mannor unto his eldest son and to the daughter of Dunce for life for the Joynture of the wife the Remainder to the son in Fee the son having no Issue his Father in Law Dunce procured him by Deed indented to Bargain and sell to him the Mannor the Bargainor being sick who dyed before Inrollment of the Deed within the six moneths the Deed not being acknowledged and afterwards the Deed coming to be inrolled the Clerk who inrolled it procured a Warrant from the Master of the Rolls who writ upon the Deed Let the Deed be inrolled upon Affidavit made of the delivery of the Deed by one of the witnesses to the same and afterwards 〈…〉 was inrolled within the six moneths And the Opinion of the Court was That the Conveyance was a good Conveyance in Law And therefore the younger Brother exhibited his Bill in Chancery pretending the Conveyance to be made by practice without any consideration Winchcombe and Dunce Hill 13 Jac. in Canc ' Godb. Case 376. 2. Popham's Case 5 Eliz. If a man bargain and sell to one and after to another the first Deed is inrolled and after the second and that the last day of the six moneths accounting the day of the date for none yet it was held by the Court That the first Bargainee should have it sic vide from the Date which are the words of the Statute are of the same sense as from the day of the date and that twenty eight dayes make a moneth Dyer 218. Moores Rep. 40. Case 128. 3. Chibbornes Case Lands in London may be bargained and sold by words without Indenture or Inrollment Dyer 228. 4. In Trin. 41 Eliz. Fisher against Smith it was held by the Court. That a bargain and sale of Lands by Deed indented and inrolled for divers good considerations is not good to pass the Land without proof of money paid which must be averred But if the Deed say for a competent sum of money neither party may urge there was none paid albeit it be uncertain Moor. Rep.