to their intent and not in so precise a form as Grants or pleadings but as verdicts yet the substance of the matter ought to appear either by express words or by words equivalent or by those that do amount thereunto But it were good that Awards were drawn up by some that is skilful for the avoiding of Controversies which otherwise may arise about the same Agreement AN agreement is made between the parties themselvs there must be a satisfaction made to either party presently or remedy for the recompence or else it is but an indeavour to agree Tender of money without payment or agreement to pay money at a day to come is not any satisfaction before the day be come and the money be paid it cannot be pleaded in Bar in an action of Trespass For that as the other partie hath no meanes to compell the other to pay the money So he may refuse it at the day if he will otherwise in an Arbitrament but money paid at a day before the Action brought is a good plea. FINIS A TREATISE OF PARTICULAR ESTATES Written By Sir JOHN DODDRIDGE KNIGHT LONDON Printed Anno. Dom. 1651. A TREATISE OF PARTICULAR ESTATES Particular ESTATES A Particular Estate is such as is derived from a general Estate by separation of one from the other As if a man seised in Fee simple of Lands or Tenements doth thereof cheat by gift or grant an â—state Tayle or by demise a Lease for life or â—…y estate for years these are in the Donee or â—easee Particular Estates in possession derived â—nd separated from the Fee simple in the Deâ—…nor or Leasor in Reversion Also if Lands be demised to A. for life the remainder to B. and the Heires of his body the remainder to C. and his heires the Estate for life limited to A. the Estate Tayle limited to B. are particular Estates derived ut supra and separated in Interest from the Fee simple the remainder given to C. albeit the same remainder doth depend upon those Particular Estates And of Particular Estates some are created by agreement between the Parties and the particular Estates before specified And some by act of Law as the state in Tayle apres possibility de issue extinct Estates by the courtesie of England Dower and Wardship for albeit an estate in Dower be not compleat untill it be assigned which oftentime is done by assent and agreement between parties yet because the partie that so assigneth the same is compellable so to do by coursâ— of Law that Estate is also said to be create by Law also an Estate at will is a kinde of particular Estate but yet not such as maketâ— any Division of the Estate of the Lessor is seised for notwithstanding such an Estate the Lessor is seized of the Land in this Demeâ—…sure as for Fee in possession and not in Reversion Also an Estate at will is not such particular Estate whereupon a Remainder may depend But of all the Estates before mentioned many fruitfull rules and observations are both generally and particularly so lively set forth by the said Mr. Littleton in the 1 2 3 4 5 6 7 and 8. Chapters of his first Book which is extant as wel in English as in French whereunto I referr you Possession IT is further to be observed that all Estates that have their being are in Possession Reversion Remainder or in Right but of all these Possession is the Principall there are two degrees of the first and chiefest possession in fait poss in Law or Deed is such as is before spoken of And that is most proper to an Estate which is present and immediate but yet such possession of the immediate Estate if it be not greater then a tearm doth operate and enure to make the like possession of the Free-hold or Reversion when a man is said to have a Tearm it is to be intended for years when it is said a man to have the Fee of Lands it is also to be intended a Fee simple Possession is that possession which the Law it self casteth upon a man before any Entry or Pernancy of the profits As if there be Father and Son and the Father dieth seised of Lands in Fee and the same do descend to the Sonne as his next Heire in this case before any entry the same hath a possession in Law so it is also of a Reversion exportant or a Remainder dependant upon particular Estate or life in which case if Tenant for life die he in Reversion or Remainder before his Entry hath only possession in Law All manner of possessions that are not possessions in fait are only possessions in Law and it is to be observed then if a man have a greater Estate in Lands then for years the proper phrase of speech is that he is thereof seised but if it be for years only then he is thereof possessed But yet nevertheless the Substantive possession is proper as well to the one as to the other Reversion A Reversion is properly an Estate which the Law reserveth to the Donor Grantor or Lessor or such like which he doth dispose parcel of his Estate when he doth dispose less Estate in Law then that whereof he was seised at the time of such disposition as if a man seised of Lands in Fee doth give the same to another and the Heires of his body or if he doth dismiss the same for life or years in these cases the same reserveth the reversion thereof in Fee to the Donor or Lessor and his Heires because he departed not with his whole Estate but onely with a particular Estate which is less then his Estate in Fee and such Reversion is said to be expectance upon the particular Estate Also if he that is but Tenant for life for Land and doth by Deed or paroll give the same S. in Tayle or for tearm of his life which is a greater Estate then he may lawfully dispose In this case the Law reserveth a Reversion in Fee in such Donor though he were formerly but Tenant for life and the reason thereof is for that by such unlawfull disposition which by deed or word cannot be without livery and seisin he doth by wrong pluck out the rightfull state in Fee from him that was thereof formerly seised in Reversion or Remainder and thereof by a priority of time gained in an instance he was seised of a Fee simple at the time of the executon thereof But if a man seised of Lands in Fee simple giveth the same to A. and his heirs until B. do die without heire of his body in this case the Law reserveth no Reversion in the Donor because the state is disposed to A. is a Fee simple determinable is in nature so great as the state which the Donor had at the time of such gift and consequently he departed thereby with al his state and therby an apparent difference is between a gift made to A. and the heires of his own body and a gift made
to him and his heires until B. die without heire of his body for in the one case the Donor hath but an Estate Tayle and in the other a Fee simple determinable hath a possibility of Revertor for if B. die without heire of his body then whether A. be living or dead shall revert to the Donor but such possibility of Reversion for he that hath but such a possibility hath no Estate nor hath he power to give his possibility but in the other case the Donor hath Estate in Fee and therefore he hath power to dispose thereof at his pleasure Remainder A Remainder is a remnant of an estate disposed to another at the time of creation of such particular Estates whereupon it doth depend as if S. seised of lands in Fee demiseth the same to B. for life the remainder to C. and the heirs of his body the remainder to D. and his heirs In this case I. S. hath a particular Estate of the Lessor is then also disposed to C. and D. ut supra whereby B. hath an Estate for life C. a Remainder in Tail and D. a Remainder in Fee depending in order upon the particular Estate in possession and in every Remainder five things are requisite First That it depend upon some particular Estate Secondly That it pass out of the Grantor Donor or Lessor at the time of the creation of the particular Estate whereon it must depend Thirdly That it veste during the particular Estate or at the instant time of the determination thereof Fourthly That when the particular Estate is created there be a Remnant of an Estate left to the Donor to be given by way of Remainder Fifthly That the person or body to whom the Remainder is limitted be either capable at the time of limitation thereof or else in potentia propinqua to be thereof capable during the particular Estate If Lands be given to I. S. and his Heirs the Remainder for default of such Heir to I. D. and his Heirs that Remainder is void because it doth not depend upon any particular Estate But if Lands be given to I. D. the life of I. D. the Remainder to I. B. his Remainder is good for it is not limited to depend upon a Fee-simple but upon a particular Estate which is onely called an Estate for life of I. B. descendable if Lands be given to B. for 11. years if C. do so long live the Remainder after the death of C. to D. in Fee this Remainder is void for in this case it cannot pass out of the Lessor at the time of the creation of the particular Estate for years but if a Lease be made to B. for life the Remainder to the Heires of C. who is then living this Remainder is good upon a contingency that if C. dye in the life of B. for that Remainder may well pass out of the Leassor presently without be yaunce without any inconveniency because onely the inheritance separated from the Free-hold is in abeyance if Lands be given for life with a Remainder to the right Heirs of I. S. and the Tenant for life dyeth in the life of I. S. this Remainder is void because it died not vest or settled either during the particular Estate or at the time of the determination thereof for until I. S. die no person is thereof capable by the name of the Heir But if Lands be given to I. S. for terme of his life the Remainder to his right Heir in the singular number and the Heirs of his body and after I. S. hath issue a Son and dyeth that is a good Remainder and the Son hath thereby an Estate Tail for although it were unpossible that such Remainder should vest during the particular Estate because during his life none could be his Heir yet it might be and did vest at the instant of his death which was at the time of his determination of the particular Estate Concerning the fourth thing if a man seised of Lands in Fee granteth out of the same a Rent or Common to Pasture or such like things which before the grant had no being to I. S. for terme of life the Remainder to I. D. in Fee this Remainder is void because of this thing Granted there was no Remnant in the grant to dispose And because some heretofore have been of opinion that albeit the same cannot take no effect as another Grant of a new Rent or Common Vtres magis valeat quam operat This is a rule in Law that a thing enjoyed in a superior degree shall not pass under the name of a thing in any inferior degree and therefore if Lands be given unto two persons and unto the Heirs of one of them unto the Husband and Wife and Heir of the Husband and he that hath the Estate of Inheritance granteth the Version of the same Land to another in Fee such Grant is void because the Grantor was thereof seised in a superiour degree viz. in Possession and not in Reversion as appeareth 22. Ed. 4. fol. 2 13. Ed. 3. Brook title of Grants 137. And concerning the first and last thing if a Lease be made of Land for term of life the Remainder to the Major and Commonalty of D. whereas there is no such Corporation therein being this Remainder is meerly void albeit the Kings Majesty by his Letters Pattents do create such Corporations during the particular Estate for at the time of such grant the Remainder was void because then there was no such body corporate thereof capable or potentia propinqua to be created and made capable thereof during the particular Estate but the possibility thereof was then forraign and probably intended The like law is if a remainder be limited to I. the Son of T. S. who had then no Son and afterwards during the particular Estate a Son is born who is named John yet this Remainder is void for at the time of such a Grant as was not to be probably in tender that T. S. should have any Son of that name Also before the dissolution of Abbies if a Lease of Land were made to I. S. for life the Remainder to one that then was a Monk such Remainder was void for the cause before alledged albeit we were deraigned during the particular Estate But if such Remainder had been limited to the first begotten Son of I. S. it had been good and should accordingly have vested in such a Son afterwards born during the particular Estate Rights A Right in Land is either cloathed or naked a Right cloathed is when it is wrapped in a possession Reversion or Remainder a naked Right which is also most commonly called a Right is when the same is separated from the possession or Remainder by dissessin discontinuance or the devesting and separating of the possession as for example if a Lease of Land be made for life to I. S. the Remainder to I. D. in Fee in this case I. S. hath a Right cloathed with a Remainder
Of general Statutes the Judges will take notice if they be not pleaded but not of special or particular All Acts of Parliaments as well private as general shall be taken by reasonable construction be collected out of the words of the Act only according to the true intention and meaning of the maker Foure lessons to be observed where contrary Laws come in question 1. The inferiour Law must give place to the superiour 2. The law General must yeild to the Law special 3. Mans laws to Gods Laws 4. An old law to a new law And oftentimes all these laws must be joyned together to help a man to his right as if a man disseized and the disseizor made a Feoffment to defrand the plaintiff in this case it appears that the said unlawfull entrie is prohibited by the law of Reason But the Plaintiff shall recover double dammage and that is by the Statute of 8 Hen. 6. And that the dammage shall be sessed by 12. men that is by the custome of the Realm and so in some case these three laws do maintain the Plaintiff's right And these laws concern either mens possessions or the punishment of offences And so much shall be sufficient to be said touching common Law Customes and Statutes CONCERNING POSSESSIONS The difference between Possession and Seizin is Lease for years is possessed and yet the Lessor is still seized and therefore the termes of the Law are that of Chattels a man is possessed whereas in Feoffments gifts in tayle and Leases for life he is called seized CHAP. III. Of possession of Frank-Tenement TEnant in Fee-simple is he which hath Lands or Tenements to hold to him and his heires for ever It is the best Inheritance a man may have He may sell or grant or make his Will of those Lands And if a man die they do discend to his heire of the whole blood CHAP. IV. FEE-TAYLE Fee-Tayle is of what body he shall come that shall inherit Tenant in Tayle is said to be in two manners Tenant in Tayle General and Tenant in Tayle Special GEneral Tayle is where Lands or Tenements be given to a man and his wife and to the Heires of their two bodies or to his heires males or to his heires females Tenant in Tayle is not punishable for waste Tenant in Tayle cannot Will his Lands nor bargain sell or grant but for terme of his life without a Fine or Recovery If a man will purchase lands in Fee it behoveth him to have these words Heires in his purchase If a man would grant Lands in Tayle it behoveth him to appoint what body they shall come of Yet a devise of lands to a man and his heires males is a good Intayle and of lands to a man for ever a good Free-Simple How Lands shall discend Inheritance is an estate which doth discend it may not lineally ascend from the son which purchaseth in Fee and dyeth to his Father but discendeth to his Uncle or Brother and to his heires which is the next of the whole blood for the half blood shall not inherit But the most worthy of Blood as of the blood of the Father before the Mother of the elder Brother before the other and borne within espousall A discent shall be intended to the heire of him which was last actually seized That the Sister of the whole blood where the elder Brother did enter after the death of his Father and not his Brother of the halfe blood nor any other collaterall Cosen shall inherit yet notwithstanding such a one is heire to a common Ancester in which Rule every word is to be observed and so in every Maxim if the Land Rent Advowson or such like do discend to the elder Son and he die before any entry or receit of the rent or presentment to the Church the younger son shall have and inherit and the reason is because that in all inheritances in possession he which claimeth title there unto as heire ought to make himself heire to him that was last actually seized Here the possession of the Lessee for years or of the Guardian shall invest the actual possession and Frank-Tenement in the elder brother But he dying seized of a Reversion or a Remainder or an estate for life or in tayle There he which claimeth the Reversion or Remainder as heire ought to make himself heire to him that had the Gift or made the purchase Feodo excludeth an estate tayle where the second son shall inherit before the daughter And if the Lands be once settled in the blood of the father the heire of the mother shall never have them because they are not of the blood of him that was last seized And to the heire of the blood of the first Purchaser As if the Father purchase Lands and it discendeth to the son who entreth and dieth without heires of the Fathers part then the Lands shall discend to the heires of the mother or father of the father and not to the heires of the mother of the son although they are more neer of blood to him that was last seized yet they are not of the blood of the first Purchaser If the heires be females in equal distance as Daughters Sisters Aunts and so forth they shall inherit together and are but one heire and are called Parceners Gavill-kinde Doth discend to all the sons and if no sons to all the daughters And may be given by Will by the Custome CHAP. V. PARCENERS Parceners are of two sorts Women and their heires by the Common law Men by the Custom THey may have a Writ of Partition and the Sheriff may go to the Lands and by the oath of 12 men make Partition between them and the eldest shall have the Capitall Messuage by the Common Law and the youngest by the Custome Where the parties will not shew to the Jewry the certaintie there they shall be discharged in conscience if they make Partition of so much as is presumed and known by presumptions and likelyhoods Parceners may by agreement make partition by Deed or by Word and the eldest first choose unless their agreement be to the contrary Every part at the time of the partition must be of an even yearly value without incumbrance Rent may be reserved for equality or Partition and may be distrained for without a Deed. Parceners by divers discents before partition being disseized shall have one assize A Parcener before partition may charge or demised her part The entrie or Act of one Copartner or joynt-Tenant shall be the Act of both when it is for their good If a Parcener after Partition be entred she may enter upon her Sisters part and hold it with her in Parcenary and have a new Partition if she hold none of her part before she was outed viz. in exchange CHAP. VI. JOYNT-TENANTS IOynt-Tenants be such as have joynt estates in goods or lands where he that surviveth shal have all without incumbrance if the Tenements abide in the same plight as they
in Deed must have sufficient words to prove the assent and will of the Surrenderer to Surrender and that the other do also thereunto agree The husband may Surrender his Wifes Dower for his life and her Lease for ever By Deed Indented a man may Surrender upon condition CHAP. XXXVII RELEASES A Release is the giving or discharging of a Right or Action which a man hath or claimeth against another or out of or in his lands A Release or Confirmation made by him that at the time of the making thereof had no right is void if a right come to him afterwards unless it be with warranty and then it shall barr him of all right that shall come to him after the warranty made Release or confirmation made to him that at the time of the Release or Confirmation made had nothing in the Lands is void it behoveth him to have a Free-hold or a possession and privitie A Release made to a Lessee for years before his entrie is void A man may not release upon a Condition nor for a time nor for part But either the Condition is void and the time is void and the Release shall enure to the partie to whom it is made for ever for the whole by way of extinguishment But a man may deliver a Release to another as an Escrowe to deliver to I. S. as his Act and Deed if I. S. do perform such a thing or Release upon a condition by Deed indented may be good A Joynt-tenant or a Rent-charge may release yet all the Rent is not extinct nor yet if he purchase the lands his fellow shall have the Rent still If the grantee release parcell of a Rent-charge to the Grantor yet all the Rent is not extinct A Release to charge an estate ought to have these words Heires or words to shew what estate he shall have A release made to him that hath a Reversion or a remainder in Deed shall serve and help him that hath the Frank-tenement So shall a Release made to a Tenane for life or a Tenant in Tayle inure to him in the Reversion or Remainder if they may shew it and so to Trespassors and Feoffees but not to Disseisors A Release of all manner of Actions doth not take away an entrie nor the taking of ones Goods againe nor is any Plea against an Executor A Release of all demands extinguisheth all Actions Reall and Personall appeales Executions Rent-charge Common of Pasture Rent-Service and all right and Seizure and all right in Lands and propertie in Chattels But not a possibility or future duty as a Rent payable after my death and such like CHAP. XXXVIII CONFIRMATION Confirmation is when one ratifieth the possession as by Deed to make his passession perfect or to discharge his estate that may be defeated by another entrie AS if a Tenant for life will grant a Rent-charge in Fee then he in the Reversion may confirme the same Grant Whereas a man by his entrie may defeat an estate there by his Deed of Confirmation he may make the estate good A Confirmation cannot charge an estate that is determined by express Condition or limitation To confirm an estate for an houre if it be for Tenant for life it is good for life if to Tenant in Fee for ever A lease for years may be confirmed for a time or upon condition or for a piece of the Land But if a Frank-tenement be it shall enure to the whole absolutely A Confirmation to charge an estate must have words to shew what Estate he shall have To confirm the Estate of Tenant for life to his heires cannot be but by Habendum the Land to him and his heires And therefore it is good to have such a Habendum in all confirmations In a Confirmation new service may not be reserved old may be abridged A Confirmation made to one Disseizor shall be voidable to the other so shal not a Release CHAP. XXXIX CONDITION There are two manner of Conditions one expressed by Words another implyed by the Law the one called a Condition in deed the other a Condition in Law ESTATE made and the condition against the law the Estate 's good the Condition's void If the Estate beginneth by the Condition then both are void Bonds with Conditions expresly against the Law are void Conditions repugnant the estate good the Condition void Conditions impossible are void the Estate good it shall not enlarge any estate By pleading a man may not defeat an Estate of Frank-Tenement by force of a condition in Deed without he shew the Condition of Record or in writing sealed yet the Jurie may help a man where the Judges will take their Verdict at large of Chatttels he may Promise doth make a Condition but when it doth depend upon another sentence or hath reference to another part of the deed it maketh no condition but a qualification or limitation of the sentence or of that part of the Deed as provided that the person of the Grantee shall not be charged He which hath interest in a Condition may fulfill the same for safeguard of himself Between the parties it is not requisite the Condition be performed in every thing if the other do agree but to a stranger it must If the Obligee be partie to any Act. by which the Condition cannot be performed then the Obligor shall be discharged So he shall be by the Act of the Condition Where the first Act in the Condition is to be performed by the Obligee and he will not do it there the Obligation is not forfeited Where no time is set if the Condition be for the good of a stranger or of the Obligee then it is to be performed within convenient time if for the good of the Obligor at any time during their lives Immediately shall not have such a strict construction but that it shall suffice if it be done in convenient time If a man be bound to pay money or farm Rent he must seek the parties But if he be bound to perform all payments if he render his farm on the land it sufficeth If the Feoffee or Feoffor die before the day of payment the tender shall be to the Executor although the heire of the Feoffee do enter if the heire be not named vide Assignee in assignement The money must be tendred so long before Sun-set that the receiver may see to tell it To pay part of a Sum at the day cannot be satisfaction for the whole sum as a horse or a robe is But before the day or at another place at the day of the request and acceptance of the Obligee is full satisfaction An Acquittance is a good barr if nothing be paid In all cases of Conditions a payment of a certain sum in gross touching Lands or Tenements if lawfull tender be once refused he which made the tender is discharged forever And the manner of the tender and payment shall be directed by him that made it and not by him that
but by presentment in the Leete If a private way be straitned or if a bridge there which another ought to repair be decayed an action of the case lieth But if the way be stopped an Assize of Nusance lieth and the Lessee may have it after the Lessors years begin or the Lessee may have an action of the case if the most part of a Water-Way be stopped an Assize will lie CHAP. XXVI LIBERTIES A Libertie is a royall priviledge in the hands of a subject ALL Liberties are derived from the Crown and therefore are extinguished if they come to the Crown again by escheate forfeiture or such like for the Greater doth drowne the lesser One may have Park a Leete Wayfe stray wreck of Sea and â—enura placitorum by prescription and without allowance in Eyre But not Cognizance of plea nor Cattalla fellonum vel fugitinorum aut ut ligatorum A libertie may be forfeited by misusing as to keep a market otherwise then it is granted A libertie may be forfeited for not using when it is for the good of the Common-wealth as not to exercise the Office of the Clarke of the Market but not to use a market is not Whatsoever is in the King by reason of his Prerogative may not be granted or pardoned by generall words but by speciall CHAP. XXVII Of Chattells Reall Chattells Reall are Guardianships Leases for years or at will c. GUardianship is a Commodity of having the custodie of the body or lands or both where the heire is within age and the Lord of whom the Land is holden by Knights service shall have the same to his own use for it is a Chattell Reall and therefore his Executor shall have it The Guardian must not do waste nor in feoff upon pain of losing the Wardship But he must maintain the buildings out of the Issues of the Lands and so restore it to the heire If the Committee of the King commit the Wardship shall be committed to another if the Grantee he shall lose the Wardship And one of the friends of the Ward being his next friend that will may sue for him If a Lease be made to a man and his heires for 20. years it is a Chattell and his Executor shall have it otherwise if a man Will a Lease to a man and his heires here the word Heires are words of purchase and his heires shall have it If a man grant Proximam advocationem to I. S. and his heires it is but a Chattell for it is but for unicâ vice Writings pawned for money lent are Chattells If a woman have execution of Lands by Statute-Merchant and taketh a husband he may grant it for it is a chattell Of Chattells Personall CHattells Personall are Gold Silver Plate Jewels Utensils Beasts and other Chattells and moveable Goods whatsoever Obligations and Corne upon the ground All goods as well moveable as unmoveable Corne upon the ground Obligations right of Actions money out of bags and corn out of sacks Sunt Cattalla Money is not to be passed by the grant of all his goods and Chattells nor Hawkes nor Hounds nor other things ferae naturae for the propertie is not in any not after they are made tame longer then they are in his Possession as my Hounds following me or my man or my Hawke flying after a foule or my Deer haunting out of my Park But if they stray of their own accord it is lawfull for any man to take and the heire shall have them All Chattells shall go to the Executors Fatts and Furnaces fixed in a Brew house or Dy-house by the Lessee if they be fixed by Tenant in Fee the heire shall have them Now something hath been said concerning Possessions it followeth that it be shewed how they may be conveyed from one man to another CHAP. XXVIII OF CONVEYANCES In every Conveyance there must be a Grantor and a Grantee and something granted The Conveyance of some persons is void of others voidable CONVEYANCE of a Woman Covert is void without the consent of her husband and it ought to be made in her and his name except it be done as Executor to another Of an Infant that which doth not take effect with the delivery of his own hands is void and an Action of Trespass will lie against him for taking the things given Otherwise it is but voidable except it be as Executor or for necessary meat and drink c. for his advantage Voidable Of non sane memorie Royall Voidable or made by duresse Royall VOydable by the parties themselves and their heires and by them that shall have their estates except Non sane himself Grants by Fine VOydable by Writ of Error by an Infant during his nonage and by the Husband for a Fine levied by his Wife alone during their marriage Conveyance of some persons cannot be good for ever without the consent of others as the Deane without the Chapter the Major without the Commonaltie and of other bodies politick that have a common Seale or of a Parson without the Patron and Ordinary If there be no condition in the Conveyance it shall be intended the elder A Conveyance made to a feme Covert shall be good and of effect untill her husband do disagree An Infant may be Grantee so may a Woman Outlawed a Villaine a Bastard and a Fellon A Bastard can have no heire but the Issue of his body lawfully begotten An Infant at the age of discretion by his actuall entry and a woman against the will of her husband may be a disseisor or a Trespassor In all conveyances there must be one named which may take by force the grant at the beginning of the grant A grant made to the right heires of one that is dead is good or Custodibus Eccle. is good for goods All Chattells reall or personall may be granted or given without a Deed. Rent-service Rent-seck Rent-charge Common of Pasture or of Turbarie Reversion Remainder advowson or other things which lieth not in manuall occupation may not be conveyed for years for life in tayle or in Fee without writing The Major or Commonalty or such like cannot make a Lease for years without a Deed. CHAP. XXIX OF DEEDS Three things needfull and pertaining to every Deed Writing Sealing and delivering IN the Writing must be shewed the persons names their dwelling place and degree The things granted upon what consideration the estate whether absolute or conditionall with the other circumstances and the time when it was done No grant can be made but to him that was partie to the Deed except it be by way of Remainder The words must be sufficient in Law to bind the parties as if a man grant omnes terras certa sua a Lease for years passeth not but for Frank-Tenement at least nec per omnia bona sua Exceptio semper ultimo ponenda est THe Habendum must include the premisses A Condition cannot be reserved but by the Grantor and it is proper to follow the
person When any thing is granted that is not certain as one of my horses then the choice is in the Grantee When several things are granted then it is in the choice of him that is to do the first Act. A man cannot grant nor charge that which he never had A man may charge a Reversion A Parson may grant his tythes or the Wool of his Sheep for years A thing in action a cause of a suite right of entrie or a Title for a condition broken or such like may not be given or granted to a Stranger But only to the Tenant of the ground or to him that hath the Reversion or Remainder A thing that cannot begin without a Deed may not be granted without a Deed as a Rent-Charge Fayer c. Every thing that is not given by delivery of hands must be passed by Deed the right of a thing reall or personall may not be given in not released by Word a Rent of condition or a re-entrie may not be reserved to one that is not partie to the Deed. All things that are incident to others pass by the grant of them that they are incident unto A man by his Grant cannot prejudice him that hath an elder title If no estate be expressed in the Grant and Livery and seizin be made then the Grantee hath but estate or life But if there be such Words in the Grant which will manifest the Will of the Granter so his will be not against the law the estate shall be taken according to his intent and will All Grants shall have a reasonable construction and all Grants are made to some purpose and therefore reason would they should be construed to some purpose All Grants shall be taken most strong against him that made it and most beneficiall to him to whom it is made To Grants of Reversion or of Rents c. there must be Attornment otherwise nothing passeth if it be not by matter of Record ATtornment is the agreement of the Tenant to the Grant by writing or by Word as to say I do agree to the Grant made to you or I am well contented with it or I do Attorne unto you or I do become your Tenant or I do deliver unto the Grantee a peny by way of seizin of a Rent or pay or do but one service onely in the name of the whole it is good for all It must be done in the life-time of the Grantor Without Attornment a Signiory a Rent-charge a Remainder or a Reversion will not pass but by matter of Record Without Attornment services pass not by the sale of the Manor nor from the Manor but by bargain and sale inrolled Attornment must be made by the Tenant of the Free-hold when a Rent-charge is granted By the Attornment of the Termor to the Grantee of a Reversion with Liverie and the Rent also though no mention be made thereof before attornment a man may not distrain nor have an action of waste By fine the Lord may have the Wardship of the body and Lands before the attornment of his Tenant The end of attornment is to perfect Grant and therefore may not be made upon condition or for a time A Tenant that is to perfect a Grant by Attornment cannot consent for a time nor upon a Condition nor for part of a thing granted But it shall enure the whole absolutely If the Tenant have true notice of all the Grant then such Attornment is void Attornment necessary upon a Devise CHAP. XXXIV LEASES A Lease for years must be for a time certaine and ought to express the terme and when it should begin and when it should end certainly And therefore a Lease for a year and so from year to year during the life of I. S. but for two years it may be made by Word or Writing If I Lease to I. N. to hold untill a hundred pounds be paid and make no livery of seizin he hath estate only at Will A Lease from year to year so long as both the parties please after entrie in any year it is a Lease for that year c. till warning be given to depart 14. H. 8. 16. A Lease beginning from henceforth shal be accounted from the day of the delivery from the making shall be taken inclusive from the day of the making or of the date exclusive If Lands discend to the heires before his entrie he may make a Lease thereof A man lets a house cum pertinent no lands pass but if a man let a house cum omnibus terris eidem pertinent there the lands thereunto used pass If a man lets Lands wherein is Coale-mines quarries and such like if they have bin used the Tenant may use them if they be not open if the Tenant for them imploy them not on the Land it is waste likewise marle the land is the place where the Rent is to be paid and demanded if no other place between the parties be limited Trespass is not given for paying of the Rent to the Lessor howsoever it be payable there And if a man let lands without impeachment of Waste and a Stranger cut down the trees and the Lessee doth bring an action of Trespass he shall not recover for the value of the Trees but for the Crop and bursting of his close and the heire of the Lessor shal have such trees and not the Executor of the Lessee unless they be cut by the Lessee and enjoyed by the Grantee without Waste Lessee for years or for life Tenant in Dower or by the curtesie or Tenant in tayle after possibility c. have onely a special interest or property in the trees being upon the ground growing as a thing annexed unto the Land so long as they are annexed thereunto But if the Lessee or any other sever them from the Land the property and interest of the Lessee in them is determined and the Lessor may take them as things that are parcell of his Inheritance the Interest of the Lessee being determined To accept the rent of a void Lease will not make the Lease good But avoidable it will If the Husband and Wife do purchase Lands to them and the heires of the Husband and he make a Lease and die his Wife may enter and avoid the Lease for her life but if she die leaving the husband who afterward dies before the terme ends the Lease is good to the Lessee against the heire Where it is Covenanted and granted to S. I. that he shall have five Acres of land in D. for years this is a good Lease for consessit is of such force as dimisit If a man make a Lease for 10 years and afterwards maketh another lease for 21 years the latter shall be a good Lease for eleven years when the first is expired If the Lessee at his cost do put glass in the Windowes he may not take the same away again but he shall be punished for Waste and so of Wainscot and seeling if it be
not fixed with Screwes Tenant in tayle may make a lease for such lands or inheritance as have been commonly letten to farm if the old lease be expired surrendered or ended within one year after the making of the new But not without impeachment of Waste nor above 21 years or three lives from the day of the making reserving the old Rent or more 32. H. 8. By Indenture of Lease by Tenant in tayle for 21 years made according to the forme of the Statute rendring the ancient or more Rent If the Tenant in tayle die it is a good lease against â—his Issue But if a Tenant in tayle die without Issue the Doner may avoid this Lease by entrie 32. H. 8. 28. And if he in the Remainder do accept the Rent it shall not tie him for that the Tayle is determined the Lease is determined and void Ed. â— 19. The Husband may make such a Lease of his wifes lands by Indenture in the name of the husband and wife and she to seale thereunto and the rent must be reserved to the husband and his wife and to the heires of the wife according to her estate of Inheritance A Lease made by the husband alone of the Lands of his wife is void after his death But the Lessee shall have his Corne. By the husband and wife voidable if it be not made as aforesaid If a man do let Lands for years or for life reserving a Rent and do enter into any part thereof and take the profit thereof the whole Rent is extinguished and shall be suspended during his holding thereof The aceptation of a re-demise to begin presently is suspension of the Rent before any entrie otherwise of a re-demise to begin in suturo Reservations and Exceptions THere are divers words by which a man may reserve a Rent and such like which he had not before or to keep that which he had as Tenendum reservandum solvendum saciendum it must be out of a Messuage and where a distresse may be taken and not out of a Rent and it must be comprehended within the purport of the same Word Exceptions of part ought always to be oâ— such things which the Grantor had in possesion at the time of the Grant The heire shall not have that which is reserved if it be not reserved to him by special words If a man make a Feoffment of Lands and reserve any part of the profits thereof as the grass or the Wood that reservation is void because it is repugnant to the feoffment A man by a Feoffment Release Confirmation or Fine may grant all his right in the Land saving unto him his Rent-charge c. Things that are given only by taking and useing As pasture for four Bullocks or two loads of Wood cannot be reserved but by way of Indenture and then they shall take effect by way of Grant of the Grantor during his life and no longer without speciall Words Exceptions of things as Wood Myne Quarrie Marle or such like if they be used it is implied by the Law that they shall be used and the things without which they cannot be had is implied to be excepted although no c. But otherwise if they be not used then the way and such like must be excepted An Assignee may be made of Lands given in Fee or for life or for years or of a Rent-charge although no mention be made of the Assignee in the Grant But otherwise it is of a promise Covenant or Grant or Warranty If a Lessee do assigne over his terme the Lessor may charge the Lessee or assigne at is pleasure But if the Lessor accept of the Rent of the Assignee knowing of the assignement he hath determined his acception and shall not have an action of debt against the Lessee for Rent due after the assignement If after the assignement of the Lessee the Lessor do grant away his Reversion the Grantee may not have an action of debt against the Lessee If a Lessee do assigne over his interest and die his Executor shall not be charged for rent due after his death If the Executor of a Lessee do assigne over his interest an action of debt doth not lie against him for rent due after the assignement If the Lessor enter for a condition broken or the Lessee do surrender or the terme end the Lessor may have an action of debt for the arrearages A Lease for years vending rent with a condition that if the Lessee assigneth his terme the Lessor may re-enter The Lessee assigneth the Lessor receiveth the Rent of the hands of the assignee not knowing of the assignement it shall not exclude the Lessor of his entrie A thing in a Condition may be assigned over for good cause as just debt as whereas a man is indebted unto me 20. pounds and another do owe him 20. pounds he may assigne over his Obligation unto me in satisfaction of my debt and I may justifie the suing for the same in the name of the other at my own proper costs and charges Also where one hath brought an action of debt against I. N. which promiseth me that if I will aide him against I. N. I shal be paid out of the sum in demand I may aid him An assignee of Lands if he be not named in the condition yet he may pay the money to save his Land But he shall receive none if he be not named the tender shall be to the Executor of the Feoffees Assignee shall alwayes be intended he that hath the whole estate of the assignor that is assignable a Condition is not assignable and not of an Executor or Administrator if there be such an assignee the law will not allow an assignee in the law if there be an assignee indeed so long as any part of the estate remaineth to the assignor the tender ought to be made to him or his heires it serveth yet a colourable payment to the heire shall not veste the estate out of the assignee as a true payment will viz. Covenant CHAP. XXXVI SURRENDERS A Surrender is an Instrument testifying with apt words that the particular Tenant of Lands or Tenements for life or years doth sufficiently consent that he which hath the next immediate Remainder or Reversion thereof shall also have the particular estate of the same in possession and that he yeildeth or giveth the same to him for ever Surrender ought forthwith to give a present possession of the thing Surrendred unto him which hath such an estate where it may be drowned A Joynt-Tenant cannot surrender to his fellow Estating of things that may not be granted without a Deed may be determined by the Surrender of the Deed to the Tenant of the Land Lease for years cannot surrender before his Term begin he may grant he cannot surrender part of his Lease Surrenders are in two manners In Deed. In Law A Surrender in Law is when the Lessee for years doth take a new Lease for more years A Surrender
did accept it as that he paid the sum in full satisfaction and that he accepted thereof in full satsfaction An acquittance is a good bar c. Where a man is bound to pay money to make a Feoffment or renounce an Office or the like and no time is limited when the shall do it then upon request he is bound to perform it in so short a time as he may Buâ— where the time is limited if he doe refuse before the day it is no matter if he be readie to perform it at the day Where a Covenant or Condition is to marry or Enfeoff a stranger by such a day the refusall of the stranger is no Plea as that of the Obligee is The Obligee is to be ready on the Land at his own perill a Stranger must be requested if he refuse the Obligation is forfeited wherefore it is good to have these words if the Stranger do there unto assent Entrie THe determination of an estate is not effected before entrie When any person will enter for a Condition broken he must be seized on the same course and manner he was when he departed from his possession It behoveth such persons as will re-enter upon their Tenants to make a demand of the rent If the Lessor demand before he die his heire may enter If the Lessor distrain he may not re-enter The Lessor may accept of the Rent and yet re-enter but if he receive the next rent he may not for that establisheth the Lease Entry into one acre in the name of more is good it doth not extend into two Counties By the Entry of the Husband the Francktenement shall be in the wife and so of such like In Gavill-kind Land the eldest son only shall enter for the breach of a Condition Demand THe Land is the place where the rent is to be paid and demanded if there be no other place appointed And there the Lessor himself or his sufficient Attorney a little before Sun set in the presence of two or three sufficient witnesses shall say here I demand of I. B. 10. l. due to me at the Feast of c. for a Messuage c. Which he holdeth of me in Lease by Indenture c. and there remain the last day the rent is due to be paid until it be dark that he cannot see to tell the money CHAP. XI WARRANTIES There are three manner of Warranties Lineall Collaterall By Discent VVArranty Lineall is where a man by his Deed bindeth him and his heires to Warranty and dieth and the Warranty doth discend to his issue Warrantie Collaterall is in another line so that he to whom it diseendeth cannot convey the title that he hath in the Testaments by him that made warranty Warranty by Disseizin is where he which hath no right to enter entreth and maketh a warranty this is by Disseisin and barreth not Line all Warranty barreth him that claimeth Fee and also Fee-taile with assets in Fee if he sell his son may have a Formedon Collaterall Warranty is a barr to both except in some cases that be remedied by Statute as Warranty by Tenement by the curtesie except he hath enough by discent by the same Tenement Tenant In dower for life not remedied but do barre the heire and him in reversion AWarranty diseendeth alwaies to the heir at the Common law viz the eldest Son and followeth the estate and if the estate may be defeated the Warranty may also It barreth not the second Son in Gavill-kind although all the sons shall be vouched and not the eldest alone Yet he only shall be barred To plead a Warranty against him that made it or his heires is called a Rebutter Where Fee or Frank-tenement is Warranted the party shall have no advantage if he be not Tenant Where a Lease for years is warranted it shall be taken by way of Covenant and good if he be outed The Feoffor by the words dedi concessi shall be bound to warranty during his own life CHAP. XLI COVENANTS COvenants are of two sorts expressed by words in the Deed or implyed by the Law A covenant in Deed is an agreement made by the Deed in writing between two persons to performe some things and sealed for no writ of Covenant is maintainable without such a specialty but in London c. When a Covenant doth extend to a thing in being parcell of the demise or thing to be done by force of the Covenant is quodamodo annexed or appertaining to the thing demised and goeth with the land it shall bind the assignee if he be not named as to repair the houses it shall bind all that shall come to the same by the act of the law or by the act of the party But if the Covenant do concern the land or thing demised in some sort the Assignee shall not be charged although he be named as to make a Wall at anothers bodies house or to pay a sum of money to the Lessor or to a stranger But the Lessee his executors and Administrators shall be charged If the Covenant do extend to a thing that had no being but to be made new upon the Land it should binde the Assignee if he be named because he shall have the benefit of it If a man make a Lease for years and the Lessee covenanteth and granteth to pay c. to the Lessor his heirs and assignes yearly during c. ten pound his Executors shall have it A Covenant in Law upon a demise or grant the Assignee in Deed or in law may have a Writ of Covenant An Obligation to perform all Covenants and grants is forfeit on the breach of a Covenant in law A Covenant in Law is not broken but by an elder title A Covenant in Law may be qualified by the mutual consent of the parties CHAP. XLII How Chattels personal may be bargained sold exchanged lent and restored AContract is properly where a man for his mony shall have by the assent of another certain goods or some other profit at the time of the contract or after In all Bargaines Sales Contracts Promises and Agreements there must be quid pro quo presently except day be given expresly for the payment or else it is nothing but communication If a man do agree for a price of wares he may not carry them away before he hath paid for them if he have not day expresly given him to pay for them But the Merchant shall retain the wares until he be paid for them and if the other take them the Merchant may have an action of trespass or an action of debt for the money at his choice If the bargain be that you shall give me ten pound for my Horse and you do give me a penny in earnest which I do accept This is a perfect bargain you shall have the Horse by an action of the Case and I shall have the money by an action of debt If I say the price of a Cow is four pounds and you