17. Four things be incident to a frank-marriage 1. That it be given for consideration of mariage c. 2. that the woman or man that is the cause of the gift be of the bloud of the donor 3. If the gift be made of a thing which lyeth in tenure as of Lands c. A rent Common c. That the donees hold of the donor at the time of the Estate in frankmarriage made 4. That the donees shall hold freely of the donor till the fourth degree be past fo 21 b. * These words in liberum maritagium did create an estate in fee simple at the common law And these are such words of art so necessarily required as they cannot be expressed by words aequipollent c. Sect. 18. * Feodum talliatum i.e. haereditas in quandam certitudinem limitata viz. Quel issue inheritra per force de tiels dones come longement lenheritance endurera A gift made to a man haeredi masculo de corpore suo Reg. Judic fol. 6. Haeredi unide corpore c. An exception from the rule that all estates Tail were fee simple at the common law 39 Ass pl. 20. Sect. 19. * Whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasors fol. 22. b. Vide Libr. Non est haeres viventis And no diversity when the law creates the estate for life and when the party A man seised of lands in fee by Indenture makes a Lease for life the remainder to the heires male of his own body this is a void remainder So it is of a gift intaile the remainder to his own right heires for the reversion is in the Ancestor who during his life beareth in his body all his heires And the donor cannot make his own right heire a purchaser of an estate taile without departing of the whole Fee simple out of him Vide Libr. Dier 156. If a man make a Feoffment in Fee to the use of himselfe in tail and after to the use of the Feoffe in Fee the Feoffee hath no reversion but in nature of a remainder albeit the Feoffor have the Estate taile executed in him by the Statute and the Feoffee is in by the common law Dier 362. b. Whosoever is seised of Land hath not only the estate of the land in him but the right to take profits which is in nature of the use therefore when he makes a Feoffment in Fee without valuable consideration to divers particular uses so much of the use as he disposeth not is in him as his ancient use in point of reverter Fol. 23. a. Vide Libr. Dier 12. Fealty is incident to every tenure exc frankalm and cannot be separated from it Sect. 20. Certain Rules touching degrees c The first is That a person added to a person in the line of consanguinity maketh a degree 2. So as how many persons there be take away one and you have the number of degrees 3. It is to be noted that in every line the person must be reckoned from whom the computation is made Vide Libr. gradus dicitur à gradiendo quia gradiendo ascenditur descenditur Fol. 24. a. Vide c. Sect. 21. Exempla illustrant non restringunt legem Aequitas est convenientia rerum quae cuncta coaequiparat quae in paribus rationibus paria jura judicia desiderat jus respicit aequitatem Aequitas enim est perfecta quaedam ratio quae jus scriptum interpretatur emendat Bract. lib. 4. Fo. 186. Sect. 22 23. De dones fait en le tail la volunt del donor seÌ„r observe And these words queux doient inheriter imply a diversity between a discent and a purchase Fol. 24. b. Vide libr. Br. t. done 42. t. nosme 1. 40. A gift is made to a man and to the heirs female of his body the donee is capable by purchase and the heir female by discent Fo. 25. a. Sect. 24. Quaecunque que ser inheriter per force d'un done en le tail fait as heirs males covient conveier son title tout per les heir males Fol. 25. a. Vide 28 H. 6. t. devise c. 18. 1. * A devise may create an inheritance by other words then a gift can yet cannot a devise direct an inheritance to descend against the rule of law Vide lib. In an Estate Tail c. The male must make his conveiance by males and the female by females If A hath issue a son and a daughter and dieth and the son hath issue a daughter and dieth and a Lease for life is made the remainder to the heirs females of the body of A. In this Case the daughter of A shall not take becaus she is not heir But albeit the daughter of the son maketh her conveiance by a male male she shall take an Estate Tail by purchase for she is heir and a female Fol. 25. b. 11 H. 6. 13. 9 H. 6. 25. Sect. 25. No cross remainder or other possibility shall be allowed by Law where an Estate is once setled c. and taketh effect As if Lands be given to two husbands and their wives and to the heirs of their bodies begotten they have a joint estate for life and several inheritances 24 E. 3. 29. a. Sect. 29. 30. 20 H. 6. 36. Vide lib. * 5 H. 4. 3. a. Fol. 26. b. A man by Deed gave lands to Em. late wife of I.M. habend c. praedict E. haered I. M de corpore ejusdem E. procreat In this case the son and heir of I.M. begotten on the body of Em took no Estate with Em. in the lands because he was named after the habendum A man seised of two acres of land in fee simple hath issue two daughters and dieth and the one coparcenor giveth her part to her sister and to the heirs of the body of her father In this case the donee hath an estate tail in the moity of the donors part for the donâ—â— is not entire heir but the donor is heir with the donee and she cannot give to the heirs of her own body and the donâ—â— hath the other moity of her sisters part for life Les heirs ses heirs differ For if lands be given to the son and to his heirs of the body of his father the son hath a fee simple But if the land be given to the son and to the heirs of the body of c. eÌ„ est ta f. 27. a. Sect. 31. Every estate tail within the statute of Westm 2. must be limited either by expresse words or words aequipollent of what body the heir inheritable shall issue The grant of a subject shall be taken most strongly against himself * Fo. 27. b. Vide libr. 18 Ass p. 5. Armories are descendible to the heirs males lineal or collateral CAP. III. Sect. 32. TEnant in Tail after possibility of issue extinct hath certain
priviledges in respect of the privity of his estate of the inheritance that was once in him which Tenant in Tail himself hath and which Lessee for life hath not As 1. He is dispunishable for wast 2. He shall not be compelled to atturn 3. He shall not have aid of him in the reversion 4. UpoÌ„ his alienatioÌ„ no writ of entry in consimili casu lieth 5. After his death no writ of intrusion doth lie 6. He may joyn the mise in a writ of Right in a special manner 7. In a praecipe brought by him he shall not name himself Tenant for life 8. In a Praecipe brought against him he shall not be named barely Tenant for life fo 27. b. And yet he hath four other qualities agreeable to a bare Lessee for life and not to an Estate in Tail 1. If he make a Feoffment in fee this is a forfeiture of his estate 2. If an estate in fee or in fee tail in reversion or remainder descend or come to this Tenant his estate is drowned and the fee or fee tail executed 3. He in the reversion or remainder shall be received upon his default 4. An exchange between a bare Tenant for life and him is good for their estates in respect of their quantity are equal so as the difference stands onely in the quality The state of this Tenant must be created altered c. by the act of God and not by the limitation of the party ex dispositione legis non ex provisione hominis Vide Sect. 33. fol. 28. a. l. 11. Lewes Bowles CAP. IV. Curtesie D'engleterre Sect. 35. A Man seised of an advowson or rent in fee hath issue a daughter who is married and hath issue and dieth seised the wife before the rent became due or the Church void dieth she had but a seisin in law and yet he shall be Tenant by the curtesie because he could by no industry attain to any other seisin Et impotentia excusat legem But if the wife in this case dye before her entry into lands c. it is otherwise Vide lib. fo 29. a. Dier 55. 3 H. 7. 5. A man shal not be tenant by the curtesie of a bare right title use or of a reversion or remainder exâ—ectant upon any Estate of Freehold unless the particular Estate be determined during the coverture * If an estate of freehold in Seigniories Rents Commons c. be suspended a man shall not be Tenant by the curtesie As if a Tenant make a Lease for life of the Tenancy to the Seignioress who taketh a husband hath issue the wife dieth he shal not be tenant c. But if the suspension be for years he shall be Tenant by the curtesie fo 29. b. Vide li. 1 E. 3. 6. If a woman maketh a gift in Tail and reserve a rent to her and her heirs and the donor taketh husband and hath issue and the donee dieth without issue and the wife dieth the husband shal not be tenant by the curtesie of the rent for that the rent newly reserved is by the act of God determined no Estate thereof remaineth But if a man be seised in fee of a rent and maketh a gift in Tail general to a woman she taketh husband and hath issue the issue dieth the wife dieth without issue he shall be Tenant by the Curtesie of the rent because the rent remaineth fol. 30. a. Four things do belong to an Estate of Tenancy by the Curtesie viz. Marriage seisin of the wife issue and death of the wife But it is not requisite that these should concur c. at one time and therefore if a man taketh a woman seised of lands in fee and is disseised and then hath issue and the wife die he shall enter and hold by the curtesie So if he hath issue which dieth before the discent c. Vide lib. By the custom of Gavelkind a man may be Tenant by the curtesie without having any issue 9 E. 3. 38. If after issue c. in this case the husband maketh a feoffment in fee and the wife dieth the feoffee shall hold it during the life of the husband the heir of the wife shall not during his life in sur cui in vita for it could not be a forfeiture for that the estate at the time of the feoffment was an Estate of Tenancy by the Curtesie initiate and not consummate Vod l. Dier 363. 34 E. 3. Cui in vita 13. In divers Cases a man shall by having of issue be Tenant by the Curtesie where a woman shall not be endowed c. 7 E. 3. 6. 17 Ed. 3. 51. A man shall be Tenant by the Courtesie of a Common Sans nomber but a woman shall not be endowed thereof A man entitled to be Tenant by the Courtesie maketh a feofment in Fee upon condition and entreth for the condition broken and then his wife dieth he shall not be Tenant c. for his title c. was inclusively absolutely extinct by the Feoffment * Vide librum fo 30. b. Trs sona done al Beron feme a les heireo que le baron ingenera de corps sa feme en ceo case ambideux ont estate en la T I le pur ceo que ceÌ„ parol heires nest limit a lun plius que a lautre Lect. 28. Nul poit eÌ„re Tenant in taile appears possibility d'issue extinct forsque un des donees ou le donee en special taile ne un ques serra punie de wast pur lenheritance que fuit lun foits en luy Mes cesty en le reversion poit enter sil alien en fee. Sect. 36 Baron prist feme enheritrix Sil ad issue per luy ne vife il scera Tenant per le Curtesie I trust me was even now so full of my Courtesie that I had almost forgotten my craft in the taile wot you what I mean why the two last precedent Sections * If any before stay behind I le bring them after with a witnesse Thomas More Thomas de la More Antecessor meus miles creatus fuit in Parliamento cum Edwardus Princeps ille niger dux cornubiae creatus fuerit Anno Regni Reg. Edwardi tertii vndecimo Anno Dom. 1337. CAP. IV. Dower Sect. 36. LA feme serra endowe de la 3. part des treÌ„s c. que sueront a sa baron durant le coverture issint que el passe l' ago de 9. ans al temps del mort sa baron lib. 2. fol. 93. Binghams Case Dower in the common Law is taken for that portion c. which the wife hath for term of her life of the lands or tenements of her husbands c. Propter onus matrimonii ad sustentationem suiipsius educationem liberorum cum fuerint procreati si vir praemoriatur Dos ex donatione est quasi donarium because the law it self doth without any gift of the husband himself give it
vide c. The Custome that enableth the Lord of a Manor to grant a greater estate enableth him to grant a lesser Omne majus continet in se minus H. 36. El. R. 492. Barnes B. R. A letter of Attorney may be contained in a Deed of feoffment beginning Omnibus Christ fidel c. for one continent may contain divers Deeds to severall persons but if it be by Indenture c. it is otherwise Though the Attorneys warrant be generall to deliver seisin yet hee cannot deliver seisin within the view for his warrant is intendable or implyed in law of an actuall and expresse livery and not of a livery in law P. 3. El. in C.B. in Yachams case Oportet quod donationem sequatur rei traditio etiam in vita donatoris donatorii Bract. l. 2. fo 16. Therefore a letter of Attorney to deliver livery of seisin after the decease of the Feoffor is voyd But this is to be understood of sole persons c. and not of a Congregation aggregate of many persons capable 18. H. 8. 3. 11. H. 7. 19. Sect. 67. There be two kinds of Wasts viz. Voluntary and Actuall or Permissive Waste may be done in houses by pulling them down or by suffering the same to be uncovered If the Tenant do or suffer Waste to be done in houses yet if he repair them before any action brought there lieth no action of Waste against him but he cannot plead quod non fecit vastum but the speciall matter If the tenant build a new house it is waste and if he suffer it to be wasted it is a new waste 42. E. 3. 21. If the tenant suffer the houses to be wasted and then fell down Timber to repair the same this is a double waste 44. E. 3. 44. F. N. B. 59. B. Note there is a waste Destruction and Exile Waste properly is in houses gardens and in timber-trees either in cutting of them down or topping of them or doing any act whereby the timber decaies The cutting of dead wood that is ubi arbores sunt aridae mortuae cavae non existentes marhemiuÌ„ nec portantes fructus nec folia in aestate is no Waste Dier 332. If the tenant cut down underwood as he may by law yet if he suffer the young germins to be destroyed this is destruction 20 E. 3. Waste 32. 10 H. 7. 2. Exile or destruction of Villains or tenants at will or making them poor where they were rich when the tenant came in whereby they depart from their tenures is Waste fol. 53. a. b. vide libr. If the estate of the reversion continueth not but is altered the action of Waste for Waste done before which consists in privity is gone An action of waste doth lie against the Assignees of tenant by the Curtesie and of tenant in Dower and against the Assignee of the Guardian in Chivalry in all other cases the action of waste shall be brought against him that did the waste fo 54 a. vide c. An Infant a Baron and Feme shall be punished for waste done by a stranger and so shall the wife that hath the estate by survivor for waste done by the husband in his life time if she agree to the estate F.N.B. 36. b. If a lease be made to A. for life the remainder to B. for life the remainder to C. in fee After the death or surrender of B. in the mean remainder an Action of waste doth lie But if a lease for life be made the remainder for years the remainder in fee an Action doth lie presently during the term in remainder But if a man make a lease for life or years and after grant the reversion for years the lessor shall have no Action of waste during the years for he himself hath granted away the reversion in respect whereof hee is to maintain his Action Otherwise it is if hee had made a lease in reversion which had been but a future interest c. Vide c. 4. E. 3. 18. F. tit Waste No Action of waste lieth against a Guardian in Soccage but an action of trespasse Nor against Tenant by Statute Staple c. or Elegit Stat. Marlebridge cap. 17. F. N. B. 59. E. See in the Register five severall writs of waste Two at the Common law for waste done by Tenant in Dower or the Guardian and three by speciall or statute Law for waste done by Tenant for life for years and Tenant by the courtesie Qui haeret in littera haeret in cortice Vide c. As tenant for half a yeer is within the remedy of Stat. Gloc. ca. 5. which giveth waste against a lessee for life or yeers Lessee for life the remainder to him for 21 yeers he hath both estates in him so distinctly as he may grant away either of them For a greater estate may uphold a lesser but not è converso fol. 54. b. If a man make a lease for life to one the remainder to his Executors for twenty one years the term for yeers shall vest in him For even as an Ancestor and an Heir are correlativa as to inheritance as if an estate for life be made to A. the remainder to B. in taile the remainder to the right heires of A. the fee vesteth in A. as if it had been limited to him and his heires even so are the Tâ—stators and Executors Correlativa as to any Chattel CHAP. VIII Of Tenant at will Sect. 68. EVery lease at will must be in law at the will of both parties Possessio precaria nuda pro voluntate domini potest revocari fol. 55. a. Fleta l. 3. Tenant at will shall reap the crop which he sowed in peace albeit the lessor doth determine his will before it bee ripe for that the estate of the lessee is uncertain and it is good for the Commonwealth that the ground be sown And this is not onely proper to a lessee at will but to every particular tenant that hath an estate incertain And therefore if tenant for life soweth the ground and dyeth his executors shall have the Corn. And the same law is for lessee for yeares of tenant for life So if a man be seised of land in the right of his wife c. his executor shall have the Corn. But if husband and wife bee joynt-tenants of the land and the husband soweth the ground and the land surviveth to the wife it is said that she shall have the Corn Dier 316. But where the estate of the lessee being incertain is defeasible by a right Paramount or if the lease determine by the act of the lessee as by Forfeiture Condition c There he that hath the right Paramount or that entreth for any forfeiture c. shall have the Corn. fol. 55. b. l. 5 106 If a disseissor sow the ground and sever the Corn and the disseissee re-enter he shall have the Corn because he entreth by a former title and severance or removing
E. 4. 1. b. 4 E. 4. 10. 3. For matters within the Realm 5 E. 4. 30. the Custom of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder 4. By Certificate of the Sheriff upon a Writ to him directed 10 H 10. in case of Priviledge if one be a Citizen or a Forreiner 5. Tryal of Records by Certificate of the Judges in whose custody they are by Law All these be in Temporal causes 6. In causes Ecclesiastical as loyalty in Marriage general Bastardy Excommengment Profession c. which are to be tried by the Certificate of the Ordinary Also if a Subject of the King be killed by another of his Subjects out of England in any Forreign Country the wife or he that is heir of the dead may have an Appeal for this Murther or Homicide before the Constable and the Marshal whose sentence is upon the Testimony of Witnesses or Combate fo 74. a. vide lib. Stat. 1 H. 4. cap. 14. 13 H. 4. fol. 5. c. Anno 25 El c. CHAP. IV. Knights service Sect. 103. TEnure per homage fealty escuage est a tener per service de Chivaler trait a luy gard mariage reliefe Si haereditas teneatur per servitium militare tunc per leges infans ipse haereditas ejus c. per dominum feodi illius custodientur c. Fortesc ca. 44. Audacter quilibet facit quod se scire non diffidit Amongst the Lawes of St Edward the Confessor it is thus provided Debent enim universi liberi homines c. secundum foedum suum sciendum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum domini Regis explendum peragendum Lambert fo 135. a. And William the Conqueror confirmed that Law c. And therefore if after the Lord hath the Wardship of the body and land the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the Infant he shall be out of Ward c. for he was in Ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct cessante causa cessat causatum fol. 76. a. Regularly there be six incidents to Knights service viz. Two of Honor and Submission as Homage and Fealty and four of Profit as Escuage Ward Marriage and Relief Also these be other incidents to Knights service besides these as aid per faire fitz Chivalrer and aid per file marier c. Relevium is derived from Relevare Quia haereditas quae jacens fuit per antecessoris decessum relevatur in manus haeredum propter factam relevationem facienda erit ab haerede quaedam praestatio quae dicitur relevium Bract. lib. 2. ca. 36. fo 84. By custome the heires of him that holdeth in Socage may be in a word * By the common Law the heir shall not be in ward unlesse he claime as heire by discent Vide Libr. In many Cases the heire shall be in ward albeit the Tenant died not seised c nor in the Homage of the Lord. But if one levy a fine executory as fur grant and render to a man and his heires and he to whom the Land is granted and rendred before execution dieth his heire being within age entreth he shall not be in ward for his ancestor was never * tenant to the Lord. Vide c. If the disseisie die his heire being within age the Lord shall have the wardship of the heir of the body of the disseisee and if the disseisor dieth seised and his heire within age the Lord may seise the wardship of his heire also and of the Land also c. Vide c. For the ease of the heire and for avoiding of danger c. The heire for the most part after his full age sueth out a speciall livery which containeth a beneficiall pardon c. Fo. 77. a. Vide quaere A common person shall have nothing in ward but that which is holden of him But the King by his Prerogative shall not only have such Lands c. which the heire of his Tenant by Knights service in Capite holdeth of others but such inheritances also as are not holden at all of any as rent-charges rent-seck Fayres Markets Warrens Annuities c. Fo. 78. a. Stamf. pr. Fo. 8. * The Law is changed since Littleton wrote in many Cases both for the marriage of the body and for the wardship of the Lands and a farre greater benefit given to the Lords then the common Law gave them and some advantage given to the heires which before they had not As if the Father had made an estate for life or a gift in taile of Lands holden by Knights service to his eldest Son or other heir apparant within age the remainder in Fee to any other and dyed the heir should not have been in ward for this was out of the Stat. Merlebridg But at this day the heir shall be in that case in ward for his body and a third part of his land So if the Father had infeoffed his eldest Son within age and a stranger and the heirs of the son and died the son should have been out of ward but at this day he shall be in ward for his body and for a third part of his moity Fo. 78. a Vide c. The benefits that grew to the subject by acts of Parliament were that Tenants in Fee simple might devise their lands in such manner and form c. Also that the Father might infeoffe his eldest Sonne or other heir lineal or collaterall holden by Knights service and two parts of the Land shall be out of ward Lib. 8. fo 83. fo 163. And both the Statute of 32 and 34 H. 8. Concerning Wills and Wardships are many waies prejudiciall to the heirs as if Tenant by Knights service make a Feoffment in Fee to the use of his wife and heir heirs or to the use of a younger Sonne and his heirs or wholly for the payment of his debts In these cases although nothing at all of the Lands so holden descend to the heir but he is disherited of the same yet his body shall be in ward In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt presumenda vera tamen honesta possibilia Lex semper intendit quod rationi convenit By intendment of Law the heir is not able to do Knights service before his full age of 21. years and therefore hath a gardian c. A woman hath seven ages for several purposes appointed to her by Law as seven years for the Lord to have aid pur file Marr. Nine years to deserve Dower 12. years to consent to marriage
Lord will distreine averia Carurae where there is a sufficient c. to be raken beside 5. If the Lord coming to distreine had no view of the Cattell within his Fee though the Tenant drive them off purposely or if the Cattell of themselves after the view goe out of the Fee or if the Tenant after the view remove them for any other cause than to prevent the Lord of his distresse In all these cases if the Lord distreine the Tenant may make rescous Vide les autorities en ceux cases 1. 6. E. 4. 11. b. F. N. B. 102. E. Lib. 4. f. 11. Bevills c. 8. H. 4. 1. 2 17 E. 3. 43. Rescous 14. If a man come to distreine for dammage feasant and see the beasts in his soile and the owner chase them one of purpose before the distresse taken if the owner of the Soile disterine them the owner of the cattell may tescue them for the beasts must be damage fesant at the time of the distresse 16. E. 4. 10. Lib. 9. fo 22. in case de avowrie There is a diversity between a Warrant of Record and a warr or an Authority in Law for if a Capias be awarded to the Sheriff to arrest a man for felony albeit the party be innocent yet cannot he make rescous But if a Sheriffe will by authority which the Law giveth him arest any man for Felony which is not guilty he may rescue himself 14. H. 7. 20. tit Just de peace 9. To counterplead the Plantiff in an Ass by which he is delayed maketh him that pleadeth it a disseisor Otherwise it is if he had pleaded nul tort c. 24. Ass 3. 29. Ass 52. Brit. Fo. 108. If any man be disturbed to enter and manure his Land this is a disscisin of the Land it self for qui adimit medium dirimit finem qui obstrnit aditum destruit commodum 26. Ass 17. 3 E. 4. 2. par Littleton Sont 4. causes de disseisin de rent charge sc Rescous replevin enclosure denier and you may adde a Fifth oiz. reststance to distreine counterpleading and vouching a Record and failer thereof Deniall is a desseisin of a rent charge as well as of a rent seck albeit he may distreine for the rent charge as well as for rent service Nota. that when Bookes say that detainer of a rent charge or seck is a disseisin it must be intended upon a demand made 14. E. 4. 4. Et Sont 2. causes de disseisin de rent seck viz. denier inclosure Sect. 240. Maxime paci sunt contraria vis injuria Omnes illos dicimus armatos qui habent cum quo nocere possunt c. Bract. Lib. 4. f. 162. Armorum appellatione non solum scuta gladii galeae continentur sed fustes lapides as the Poet. Jamque faces saxa volant furor arma miniâ—â—rat Virgillius 1. Aeneid Sed vim vi repellere licet modo fiat moderamine inculpatae tutelae non ad sumendam vindictam sed ad propulsandam injuriam Vide Sect. 589. Where a disseisin shall be by way of admittance of the owner of the rent Since Littletons time a right profitable Statute 32. H. 8. ca. 37. hath beene made for the recovery of arrerages of rents in certaine cases c. First When Littleton wrote the Heirs Executors or Administrators of a man seised of a rent service rent charge rent seck or fee fame in fee simple or fee taile had no remedy for arrerages incurred in the life of the owner of such rents But now a double remedy is given to the Executor or Administrator for payment of debts c. viz. either to destrain or to have an action of Debt 2. The preamble of the Statute concerning Executors or Administrators of Tenant for life is to be intended of Tenant pur auter vie so long as Cesty que vie liveth who are also so holâ—en by the said double Remedy but after the estate for life determined his Executors or Administrators might have had an action of Debr by the Common Law but they could not have distrained which now they may c. l. 4. 49. Ognels Case Dyer 375. 3. If a man make a lease for life or lives or a gift in taile reserving rent this is a rent service within the Statute 4. The action of debt must be brought against them that tooke the profits when the rents became arrere or against their Executors or Administrators but the distresse may bee taken upon the land be it in the Tenants hands or of any other that claimes by or from him i. e. from or under him by purchase gift or descent and not above him as the Lord by Escheat claimeth c. by reason of his Seigniory which is a Title Paramount l. 7. 39. Lillingtons Case 11. H. 4. 94. 5. Lord and Tenant rent is arrere the Lord grants his Seigniory and dyeth The Executor shall have no remedy for these arrerages because the grantor himselfe had no remedy for them when he dyed in respect of his grant and the act is accordingly 6. If the Tenant make a lease for life remainder for life remainder in set Tenant for life payes not the rent due to the Lord the Lord dyeth Tenant for life dyes the Executor cannot distrain upon him in remainder for he claimes not by descent by or from Tenant for life And so it is of a Reversion But if a man grant a rent charge to A. for the life of B. and letteth the lands to C. for life the remainder to D. in fee the rent is arrear for divers yeares B. dyeth C dyeth A. may destraine D. in remainder for all the arrerages by the latter branch of the Statute 22. H. 8. l. 5. 118. Edridges Case 7. For the arrerage of a Nom. Paenae and for reliefe or for Aid pur faire fits Chivaler c. This Statute giveth no remedy For arrerages of the Nom. Paenae the grantee or his Executor c. may have an action of Debt for Relief the Lord must distrain but his Executor by the Common Law shall have action of Debt W. 1. c 36. F. N B. 122. Note all manner of arrerages of rents issuing out of a Freehold or inheritance whether they be in Money or Corne Cattle c. within the Statute but worke dayes or any corporall service c. are not 8. If a Feme sole seised of a rent in fee taketh husband and dyeth the husband by the Common Law should not have the arrerages due before marriage but now the Statute giveth him remedy for the same L. 4. Ognels Case Liber Tertius CAP. I. Of Parceners Sect. 241. OUr Author having treated in his two former Books 1. Of Estates of Lands and Tenements and in his second Book of Tenures whereby the same have been holden Now in his third Book doth teach us divers things concerning both of them as 1. the Qualities of their Estates 2. In what cases the
the reversion to the grantee Vide Westcotes Case lib. 2. fo 60 61. If lessee for life granteth his estate to him in the reversion and to a stranger the joynture is severed and the reversion executed for the one moity by the act of the Law 7 H. 6. If a man make a lease for life and grant the reversion to two in fee the lessee granteth his estate to one of them they are not joynt-tenants of the reversion for there is an execution of the estate for the one moity and an estate for life the reversion to the other of the other moity Si home voet lesser terre a un auter par fait ou sans fait nient fesant mention que estate il avoit fert livery c. en ceo cas le lesse ad estate pur tinere de sa vie Quaelibet concessio fortissimè contra donatorem interpretanda est Legis autem constructio non facit injuriam Pl. Com. in Throgmortons case If a lease be made to two habendum to the one for life the remainder to the other for life this doth alter the generall intendment of the premises Et semper expressam facit cessare tacitum 30 H. 8. tit Joyntenans Br. 53. Dyer fo 361. Pl. Com. 100. Nota where the grant is impossible to take effect according to the letter there the Law shall make such a construction as the gift by possibility may take effect Benignae faciendae sunt interpretationes cartar propter simplicitatem laicorum ut res magis valeat quam pereat fo 183. b. Cognitio legis est copulata complicata Tunc unumquodque scire dicimur cum primam causam scire putamus scire autem propriè est rem ratione per causam cognoscere Arist 1 Metap Virg. 1. Georg. Felix qui potuit rerum cognoscere causas If a gift be made to two men and the heirs of their two bodies begotten the remainder to them two and their heirs they are joynt-tenants for life tenants in common of the estate taile and joynt-tenants of the fee simple in remainder for they are joynt purchasers of the fee simple and the remainder in fee is a new created estate but the reversion remaining in the Donor or his heirs is a part of his ancient fee simple Dyer 14 Eli. 309. Sect. 284. Lou terre eÌ„ done a. 2. females a les heires de lour 2. corps ingendres It hath been said that the husband c. should be Tenant pur le Curt ' living the other sister 17 E. 3. 51. 78. and that the issue of the one should recover the moity in a Formedon living the other sister 44 E. 3. Taile 13. 7. H. 4. 16. Corbets c. l. 1. fo 8. 84. 6. 4. Mar. Dyer 145. But Littleton hath resolved this doubt Vid. fo 183. a. If a man give lands to two men and one woman and the heires of their three bodies begotten they have severall inheritances For the Law will never intend a possibility upon a possibility Fo. 184. a. Sect. 285. If a fine be levied to two and to the heirs of one of them by force whereof he is seised he that hath Fee dyeth and after the joint-tenant for life dieth and an estranger abates in this case the heir may either suppose the Fee simple executed and have an Ass of Mordanc ou briefe de droit or he may have a scire fac to execute the fine or maintain a Writ of intrusion by which the heir supposeth that the Fee was not executed 11 H. 4. 55. F.N.B. 196. and 219. and he shall term it a remainder and yet when Land is given to two and to the heirs of one of them he in the remainder cannot grant away his Fee simple Sect. 286. 2 Jointenants de terre c. celuy que survesquist claima ad la terre per le survivor nemy ad ne poit de ceo claimer rien per discent de son compagnon c. Mes auterment est de parceners c. and the diversity is for that the Survivor doth claime above the grant c. and the heir by discent under c. If two joyntenants be of a terme and the one of them grant to I.S. that if he pay to him 10. l. deut Mich. that then he shall have his terme the grantor dyeth before the day I.S. payes the summe to his executor at the day yet he shall not have the terme but the survivor shall hold place for it was but in nature of a communication but if he had made a Lease for years to begin at Mich. it should have bound the Survivor 14 Pl. 8. 22. Pl. Com. 263. b. Hales case Ius accrescendi praefertur oneribus alienatio rei praefertur juri accrescendi If one joyntenant in Fee simple be indebted to the King and dieth no extent shall be made upon the land in the hands of the Survivor 40 Ass 36. F. N. B. 149. Pl. Com. 321. If a recovery be had against one joyntenant who dyeth before execution the Survivor shall not avoid this recovery because that the right of the moity is bound by it If one joynt-tenant in Fee take a Lease for years of a stranger per ft. indent and dyeth the Survivor shall not be bound by the conclusion because he claims above it c. If two joynt-tenants be in Fee and the one make a Lease for years reserving a rent and dyeth the surviving Feoffee shall have the reversion by survivor but not the rent because he claimeth in from the first Feoffer which is paramount the rent Dyer M. 2. 3. El. 187. Lib. 1. f. 96. and Lib. 6. fo 78 79. If one joynt-tenant granteth a rent charge out of his part and after release to his joint companion and dieth he shall hold the land charged because he claimeth not by the survivor in as much as the rel ' prevent the same 33 H. 6. 3 a. 9 El. Dyer 263. fo 185. a. But all men agree that if A. B. and C. be joynt-tenants in Fee and A. charge his part and then release to B. and his heires and dye that the charge is good for ever for B. cannot be in from the first Feoffer because he hath a joynt companion at the time of the release made and severall Writs of praec must be brought against them 37 H. 8. tit alienation Br. 31. 10 E. 4. 3. b. Sect. 287 Jus accrescendi prefertur ultimae voluntati Although an inâ—ant est unum indivisible tempore quod non eÌ„ tempus nec pars temporis ad quod tamen partes temp connectuntur and that instans est finis unius temporis principium alterius yet in consideration of Law there is a priority of time in an instant as here the survivor is preferred before the devise which Littleton distinguisheth by these words post mortem per mortem Pl. Com Fulmerstons case Two femes ioynt-tenants of a Lease for years one of
donques il est le fait d'ambideux c. The feoffee is no way made party to make it being made in the first person but onely by the clause of putting his Seal thereunto Vide Lib. c. Sect. 374. If A. by Deed indented between him and B. let lands to B. for life the remainder to C. in fee reserving a rent Tenant for life dyeth he in remainder entreth into the lands he shall be bound to pay the rent because he agreeth to have the lands by force of the Indenture 50 E. 22. 3 H. 6. 26. b. fo 231. a. An Indenture of lease is ingrossed between A. of the one part and D. and R. of the other part which purport a demise for years by A. to D. and R. A. sealeth and delivereth the Indenture to D. and D. seal the Counterpane to A. but R. did not seal and deliver it And by the same Indenture it is mentioned that D. and R. did grant to be bound to the Plaintiff in 20 l. in case that certain conditions comprised in the Indenture were not performed And for this 20 l. A. brought an action against D. onely and sued forth the Indenture The Defendant pleaded That it is proved by the Indenture that the demise by Indenture was made to D. and R. which R. is in full life and not named in the Writ Judgement of the Writ The Plaintiff replied That R. did never seal and deliver the Indenture and so his Writ was good against D. sole And there the Counsel of the Plaintiff took a diversity between a rent reserved which is parcel of the lease and the land charged therewith and a sum in gross as here the 20 l. is for as to the rent they agreed That by the agreement of R. to the lease he was bound to pay it but for the 20 l. that is a sum in gross and collateral to the lease and not annext to the land and groweth due onely by the Deed and therefore R. said he was not chargeable therewith for that he had not sealed and delivered the Deed. But in as much as he had agreed to the lease which was made by Indenture for the same sum in gross and for that R. was not named in the Writ it was adjudged that the Writ did abate 38 E. 3. 8. a. vide 44 E. 3. 11 12. Qui sentit commodum sentire debet onus transit terra cum enere Sect. 375. Le feoffer poit pledere condition en fait Poll pur ceó que il est privy al fait c. Felix qui potuit rerum cognoscere causas Et ratio melior semper praevalet Fol. 231. b. If the Deed remain in one Court it may be pleaded in another Court without shewing forth Quia lex non cogit ad impossibilia 40 Ass 34. l. 5. 75. b. Wymarks 12 H. 4. 8. F. N. B. 243. Sect. 376. When divers do a Trespass the same is joynt or several at the will of him to whom the wrong is done yet if he release to one of them all are discharged because his own Deed shall be taken most strong against himself but other wise it is in case of Appeal of Death c. As if two women be joyntly and severally bound in an Obligation if the Obligee release to one of them both are discharged and seeing the Trespassers are parties and privies in wrong the one shall not plead a Release to the other without shewing of it forth albeit the Deed appertain to the other 27 E. 3. 83. 13 E. 4. 2. 15 E. 4. 26. 21 E. 4. 72. 22 E. 4. 7. 13 H. 8. 10. 34 H. 8. estrange al fait 21. Sect. 377. Semper quaere de dubiis quia per rationes pervenitur ad legitimam rationem c. Ratio est radius divini luminis If a man hath an Obligation though he cannot grant the thing in action yet he may give or grant the Deed viz. the Parchment and Wax to another who may cancel and use the same at his pleasure Omnia praesumuntur legitimè facta donec probetur in contrarium Injuria non praesumitur fo 232. b. There be three kindes of unhappy men 1. Qui scit non docet Infelix cujus nulli sapientia prodest 2. Qui docet non vivit Infelix qui recta docet cum vivit inique 3. Qui nescit non interrogat Infelix qui pauca sapit spernitque doceri Inter cuncta leges percunctabere doctos Sect. 378. Estates que homes ont sur condition en ley sont tiels estates que ont un condition per la ley a eux annex comment que ne sont specifie en escript sicome home grant person fait a un auter le office del Parkership pur terme de son vie le estate que il ad en le office sur condition en ley sc que le Parker bien loialment gardian le Park c. issint est de offic ' de Seneschalship c. auterment bien lirroit al grantor a ses heires de luy ouste c. Quia in eo quo quis delinquit in eo de jure est puniendus 15 E. 4. 3. l. 5 E. 4. 26. 28 H. 8. Bendloes c. Lib. 6. fo 50. 95. 96 99. Mich. 33 E. 1. Coram Rege in Thesaur ' levesque de Durhams Case Forresta est tuta ferar'mansio non quarumlibet sed silvestrium non quibuslibet in locis sed certis ad hoc ideonis unde Foresta E. mutata in O. quasi feresta hoc est ferarum statio Ockam vide Bract. fo 231. 316. Non-user of it self without some special damage is no forfeiture of private Offices but Non-user of publike Officers which concern the administration of Justice or the Commonwealth is of it self a cause of forfeiture Pl. 379 380. 2 H. 7. 11. 30 H. 6. 32 c. There is a diversity between Officers that have no other profit but a collateral certain fee for there the grantor may discharge him of his service as to be a Baily Receiver Surveyor Auditor c. the exercise whereof is but labour and charge to him but he must have his Fee for the main Rule of Law is That no man can frustrate or derogate from his own grant to the prejudice of the grantee 18 E. 4. 8. 31 H. 8. Grants Br. 134. 34 H. 8. ibid. 93. 11 El. Dyer 285. But in all cases where the Officer relinquisheth his Office and refuseth to attend he loseth his office fee profit and all There is another diversity where the grantee besides his certain fee hath profits and avails by reason of his Office as the Office of Stewardship of Courts there the grantor cannot discharge him of his service or attendance for that should be to the prejudice of the grantee 22 H. 6. 10. 3. 6 E. 6. Dyer 72. Conditions in Law be of two natures i.e. by the Common Law and by Statute and those
the land was devised to A. for that purpose otherwise B. should be remediless Et interest Reipublicae suprema hominum testamenta rata haberi and the lessee of B. upon an actual ejectment recovered the moity of the land against A M. 31. and 32 El. Ban. R. Crickmers case Dyer 6 E. 6. fo 74. 7 E. 6. 70. Judicium pro veritate accipitur Fo. 236. b. Sect. 384. Defaire i.e. to defeat or undo infectum reddere quod factum est There is a diversity between inheritances executed and inheritances executory as lands executed by livery c. cannot by Indenture of defeasance be defeated afterwards and so if a disseisee release a disseisor it cannot be defeated afterwards c. but at the time of the release c. the same may be defeated c. for Quae incontinenti fiunt inesse videntur Bract. l. 2. f. 16. 17 Ass p. 2. 30 Ass p. 1. 11. But rents annuities conditions warranty c. that be inheritances executory may be defeated by defeasances made either at that time or at any time after and so the Law is of Statute Recognizance Obligation and other things executory 20 Ass p. 7. 7 E. 4. 29. Brown and Bestons case Pl. 131. 28 H. 8. Dy. 6. 27 H. 8. 15. If a man seised of lands in fee and having issue divers sons by Deed indented covenanteth in consideration of fatherly love c. to stand seised of three acres of land to the use of himself for life and after to the use of Thomas his eldest Son in Tail and for default of such issue to the use of his second Son in Tail with divers like remainders over with a Proviso that it shall be lawful for the Covenantor at any time during his life to revoke any of the said uses c. This Proviso being coupled with an Use is allowed to be good but in case of a Feoffment or any other Conveyance whereby the feoffee or grantee c. is in by the Common Law such a Proviso were meerly repugnant and void 27 H. 8. cap. 10. And first in the case aforesaid if the Covenantor who had an estate for life do revoke the uses according to his power he is seised again in fee simple without entry or claim 2. He may revoke part at one time and part at another 3. If he make a Feoffment in fee or levy a Fine c. of any part this doth extinguish his power but for that part whereas in that case the whole condition is extinct but if it be made of the whole all the power is extinguished So as to some purposes it is of the nature of a condition and to other purposes in nature of a limitation Lib. 1. fo 173 174. Digges case l. 1. f. 107. Albainers case l 10. f. 143. Screops case Lib. 7. fo 12 13. Sir Francis Englefields case 4. If he that hath such a power of revocation hath no present interest in the land nor by the Leasor of the estate shall have nothing then his Feoffment or Fine c. of the Land is no extinguishment of his power because it is meer collaterall to the Land 5. By the same conveyances that the old uses be revoked may new be created and limited where the former cease ipso facto by the revocation without either entry or claim 6. That these revocations are favourably interpreted because many mens inheritances depend upon the same Ex paucis dictis intendere plurima possis CAP. VI. Discent que tollent entries Sect. 385. DEscendere i.e. ex loco superiore in inferiorem movere Brit. fo 115 215. Vide S. 5. The Civilians call him haeredem qui ex testamento succedit in universum jus testatoris But by the Common Law he is onely heir which succeedeth by right of bloud Haeres dicitur ab haerendo quia qui haeres eÌ„ haeret hoc est proximus est sanguine illi cujus est haeres So as he that is hares sanguinis est haeres heâ—us haereditatis Nota in ancient time if the disseisor had been in long possession the disseisee could not have entred upon him Brit. Fo. 115. Likewise the disseisee could not have entred upon the Feoffee of the disseisor if he had continued a year and a day in quiet possession But the law is changed in both these cases onely the dying seised being an act in Law doth hold at this day 1 Ass 13. 9. Ass 15. Lamb. explic fo 120. 70. Porro autem quam maritus sine lite controversia sedem incoluerit eam conjux proles sine controversia possidento siqua in illum lis fuerit illata viventem eam haeredes ad se perinde atque is vivus accipiunto And one of the reasons of this ancient Law may be that the heir cannot suddenly by intendment of Law know the true state of his title Vide lib. fo 237. b. To a discent that taketh away an entry a dying seised is necessary but a man to other purposes may have lands by discent though his Ancestour died not seised 11 H. 7. 12. 40 E. 3. 24. Discents of inheritance incorporeall which lies in grant as Advowsons Rents Commons in grosse c. doe not put him that right hath to an action otherwise it is of houses and lands 6 H. 4 4. 15 E. 4. 14. F.N.B. 143. 9. 7. H. 4. 12. 5. 2. Ass p. 9. A recovery is had against Tenant for life where the remainder is over in fee Tenant for life dieth he in remainder enters before execution and dieth seised the entry of the recoveror is lawfull because he is privy in estate otherwise it is if the discent had been after execution 3 E. 4. 6. 12 E. 4. 19. 3 H. 7. 3. 6 E. 4. 11. 7 H. 7. 15. 5 H. 7. 31. 10 H. 7. 5. b. 5 H. 7. 2. A. recovereth an Advowson against B. in a Writ of Right and hath judgement finall the incumbent dieth B. by usurpation presents to the Church and his clark is admitted and instituted B. dieth A. is out of possession and the heir of B. is not so bound by the judgement either in bloud or estate but that he shall present 45 E. 3. qu. imp 139. B. levies a fine to A. of an advowson to him and his heirs after the Church becomes void B. presents by usurpation and his Clark is admitted and instituted this shall put A. the Conusee out of possession 8 E. 2. Qu. imp 166. Albeit the usurpation were in both the said cases before execution yet it put the rightfull Patron out of possession So note a diversity between a recovery of Land and of an Advowson Now by the Statute made since Littleton wrote it is enacted that except the disseisor hath been in the peaceable possession of such Manors Lands c. whereof he shall dye seised by the space of five years next after such disseisin c. without entry or continual claim c. that there such dying seised
c. shall not take away the entry c. 17 H. 6. 1. Lestat 32 H 8. c. 33. Sect. 422 426. Pl. 47. Wimbishes case Fo. 231. a. vid. c. Ad ea que frequentius accidunt jura adaptantur The Feoffee of a disseisor is out of the said Statute and remains as at the Common Law M. 4. 5 El. Dyer 219. But if a man make a lease for life and the lessee for life is disseised and the disseisor dye seised within 5 years the lessee for life may enter but if he dye before he doth enter it is said that the entry of him in the reversion is not lawfull because his entry was not lawful at the time of the discent Sect. 386. If a disseisor make a gift in Tail and the donee discontinueth in fee and disseise the discontinuee and dyeth seised this discent shall not take away the entry of the disseisee for the discent of the fee simple is vanished and gone by the Remitter and albeit the issue be in by force of the estate Tail yet the donee dyed not seised of that estate Fol. 238. b. If a disseisor make a gift in Tail and the donee hath issue and dyeth seised now is the entry of the disseisee taken away but if the issue dye without issue the entry of the disseisee is revived and he may enter upon him in the reversion and remainder 9 H. 7. 24. So if there be Grandfather Father and Son and the Son disseise one and infeoff the Grandfather who dyeth seised c. the entry is taken away but if the Father dyeth seised and the land descend to the Son now is the entry of the disseisee revived and he may enter upon the Son who shall take no advantage of the discent because he did wrong unto the disseisee 13 H. 4. 8 9. 33 H. 6. 5. b. per Moyl 34 H. 6. 11. a. per Cur. S. 393 395. 13 E. 3. Br. Ent. cong 127. vide qu. If a disseisor make a lease to an Infant for life and he is disseised and a discent cast the Infant enters the entry of the disseisee is lawfull upon him Of Writs of Entry sur disseisin there be four kindes The 1. is a Writ of Entry in the nature of an Assize 19 H. 6. 56. 9 H. 5. 9. 2. A Writ of Entry sur disseisin in le per Brit. fo 264 c. 〈◊〉 E. 3. 216. 3. A Writ c. en le per cui as where A. being the feoffee of D. the disseisor maketh a feoffment over to B. there the disseisee shall have a Writ of Entry sur disseisin of lands c. in which B. had no entry but by A. to whom D. demised the same who unjustly and without Judgement disseised the Demandant These are called gradus degrees which are to be observed or else the Writ is abateable for sicut natura non facit saltum ita nec lex 22 E. 3. 1. b. F.N.B. 192. 4. A Writ of Entry sur disseisin en le post which lieth when after a disseisin the land is removed from hand to hand above the degrees 14 H. 4. 40. vide c. No estate gained by wrong doth make a degree and therefore neither abatement intrusion or disseisin upon disseisin doth make a degree Neither doth every change by lawful Title work a degree as if a Bishop or an Abbot c. disseise one and dye where his successor is in by lawful Title for though the person be altered yet the Right remains where it was viz. in the Church and both of them seised in the same Right c. An faciunt gradum de Abbate in Abbatem sicut de haerede in haeredem Et videtur quod non magis quam in computatione descensus quia etsi alternetur persona non propter hoc alternatur dignitas sed semper manet Br. l. 4. f. 321. If a disseisor by Deed inrolled convey the land to the King and the King by his Charter granteth it over the disseisee cannot have a Writ of enter en le per cui but in le post for the Kings Charter is so high a matter of Record as it maketh no degree 22 E. 3. 7. F.N.B. 191. k. Also an estate of a Tenant by the Curtesie or of the Lord by Escheat or of an execution of an Use by the Statute of 27 H. 8. or by Judgement or Recovery or of any others that come in in the post work no degree 5 E. 2. Entry 66. 7 E. 3. 360. But a Tenancy in Dower by assignment of the heir doth work a degree because she is in by her husband but assignment of Dower by a disseisor worketh no degree but is in the post 36 H. 6. Dower 30. When the degrees are past so as a Writ of Entry in le post doth lie yet by event it may be brought within the degrees again as if the disseisor infeoffe A. who infeoffs B. who infeoffs C. or if the disseisor die seised and the land descend to A. and from him to C. now are the degrees past and yet if C. infeoffe A. or B. now it is brought within the degrees again 44 E. 3 4 5. 5 H. 7. 6. If the disseisor make * a lease for life the remainder in * fee Tenant for life dieth he in the remainder is in the per because he now claimeth immediately from the disseisor and both these estates make but one degree 50 E. 3. 27. Note there be divers other Writs of Entry besides this of entry sur disseisin as a Writ of Entry ad Terme qui praeter ' in casu proviso in confirm ' casu ad com legem sine assensu capituli dum fuit infra aetat ' dum non fuit compos mentis cui in vita sur cui in vita Intrusion cessavit c. and that which hath been said of one may be applied to all Sect. 387. If a disseisor make a lease to a man and his heirs during the life of I. S. and the lessee dieth living I. S. this shall not take away the entry of the disseisee because he that died seised had but a Freehold onely and heirs were added to prevent an Occupant for the heir in that case shall not have his age Pl. 16 El. Com. Banco Lambs Case Dyer 8 El. 253. 7 H. 4. 46. 8 H. 4. 15. 11 H. 4. 42. 17 E. 3. 48. But if the Kings Tenant for life be disseised and the disseisor die seised this descent shall not take away the entry of the lessee for life because the disseisor had but a bare estate of Freehold during the life of the lessee * If the heir of the disseisor die before he enter the entry of the disseisee is taken away and yet in pleading the second heir shall make himself heir to the disseisor c. 24 E. 3. 47. An infant is disseised and after cometh to full age Sect. 388 c. En discents que tollent
to avoid a collateâ—al Warranty or the lessor in that case may recover in an Assize and so as some have holden may the lessor enter in case of a lease for life to this intent to avoid a disâ—ent or a Warranty Dyer 19 El. Pl. Com. 374. 15 H 7 3 4. Iacobius Case 28. H 6 28. S 442. 45 E 3 21. If the disseisee make continual Claim and the disseisor dye seised within the year his heir within age and by Office the King is entitled to the Wardship albeit the entry of the disseisee be not lawful yet may he make continual Claim to avoid a discent and so in the like 7 H 6. 40. Con. Claim 1 Dounclers Case 5 E 4 4. No continual Claim can avoid a discent unless it be made by him that hath Title to enter and in whose life the dying seised was 22 H 6 37. 9 H. 4. 5. a. 15. E 4 22. a. Sect. 415. fol. 251. a. A continual Claim may be made as well where the lands are in the hands of a feoffee c. by Title as in the bands of a Disseisor Abater or Intruder by wrong Sect. 416. Note that a Forfeiture may be made by the alienation of a particular Tenant either in paiis or by matter of Record 1. In paiis of lands and tenements which lie in Livery where a greater estate is by liverâ— then the particular Tenant may lawfully make wherâ—by the reversion or remainder is divested vide S 581 609 610. 611 17 El. Dyer 339. 16. El. Dyer â—2â— A particular estate of any thing that lies in grant cannot be forfeited by any grant in fee by Deed for that nothing passes thereby but that which lawfully may pass 3â— E 3. Devise 21 15 E 4 9. vide S 608. But if Tenant for life or years of land the reversion or remainder being in the King make a feoffment in fee this is a forfeiture and yet no reversion or remainder is diâ—ested out of the King and the reason is in respect of the solemnity of the feoffment by livery tending to the Kings disherison 35 H 6 62. Tr. 32 El. in Informat ' de intrusion vers Rebinson Exchequers 2. By matter of Record and that by three manner of wayes 1. By Alienation 2. By Claiming a greater estate then he ought 3. By affirming the reversion or remainder to be in a stranger 1. By Alienation and that either divesting as by levying of a Fine or suffering a Common Recovery of Lands whereby the reversion or remainder is divested or not divesting as by levying of a fine in fee of an Advowson Rent Common or any other thing that lyeth in the grant And of this Opinion is Littleton in our Books and so note two diversities 1. Between a grant by Fine which is of Record and a grant by Deed in paiis and yet in this they both agree That the reversion or remainder in neither case is divested 2. Between a matter of Record as a Fine c. and a Deed recorded or a Deed inrolled for that worketh no forfeiture because the Deed is the Original 15 E. 4. 9. 2. By Claim and that may be in two sorts either Express as if Tenant for life will in Court of Record claim fee or if lessee for years be ousted and he will bring an Assize ut de libero tenemente or Implyed as if in a Writ of Right brought against him he will take upon him to joyn the Misce upon the meer Right which none but Tenant in fee simple ought to do So if lessee for years do loose in a Praecipe and will bring a Writ of Error for Error in Process this is a Forfeiture 15 E. 4. 29. 36. H. 6. 29. 2 H. 6. 9. 4. El. Dyer 9. H. 5. 14. 22 Ass 31. 18 E. 3. 28. 16. Ass 16. 3. By affirming the reversion or remainder to be in a stranger and that either actively or passively Actively by five manner of ways as 1. Tenant for life pray in aid of a stranger whereby he affirms the reversion to be in him 2. If he Attorn to the grant of a stranger and there note also a diversity between an Attornment of Record to a stranger and an Attornment in paiis for an Attornment in paiis worketh no Forfeiture 3. If a stranger bring a Writ of entry in casu proviso and suppose the reversion to be in him if the Tenant for life confess the action this is a forfeiture 4 If Tenant for life plead covinously to the disherison of him in the reversion this is a forfeiture 5. If a stranger bring an action of Waste against lessee for life and he plead Nul waste fait this is a forfeiture or the like 21 E. 3. â—4 a. 5 E. 4. 2. 24 H. 8. Forf br 87. lib. 2. fo 55 56. Bucklers Case 24. E. 3. 68. 1 H. 7. 15 Ass 3. Passively as if Tenant for life accept a Fine of a stranger Sur conusans de droit come ceo c. for hereby he affirmeth of Record the reversion to be in a stranger 3 M. Dyer 148. Note that the Right of a particular estate may be forfeited also and that he that hath but a Right of remainder or reversion shall take benefit of the forfeiture as if Tenant forlife be disseised and he levy a Fine to the disseisor c. fo 152. a. 13 E. 4 4. If Tenant for life make ale sâ— for life or a gift in Tail or a Feoffment in fee upon Condition and enter for the Condition broken yet the Forfeiture remaineth So it is of Tenant in Taâ—l apres possi ilitâ— c. tenant per le Curtesie c. Tenant for years Tenaâ—â—â—y staâ—ute Merchant c 39 Ass 15. 43 E. 3 Enter coâ—g 3 â—2 H 5. 7 39 E. 3. 16. 45 E 3. 25. If Tenaâ—â—â—or life in remaâ—â—der make continuall Claim and the Aliene â—f the first Tenant for life dye seised then may he in the remainder for life enter and the right of entry which he gained by his entry shall go to him in the remainder in fee in respect of the privity of the estate And so it is of him in the reversion in fee in like case for he is also privy in estate If Tenant iâ— Tail the remainder in fee with garr have Iudgement to recover in value and dye before execution without issue he in remainder shall sue Execution for hee hath right thereunto and is privie in estate So if a Seigniory be graâ—teâ—â—o one by Fine the grantee for life dyeth he in remainder shall have a per que servit for he hath right to the remainder and is privy in estate Sect 417 It is not sufficient to tell one generally what he should do but to direct him how and in what manner he shall do it Note that the entry of a man to recontinue his Inheritance or Freehold must ensue his action for recovery of the same Mich. 14 â—5 El. Rot. 1458. in the Earl of Arundels
Rot. Parliament 18. H. 6. 11. 29. Ap Guilliams case 10. E. 3. c. 2. 3. H. 7. f. 6. Sect. 469. Lou home ad forsque droit a la terre nad riens in le reversion ne in le remainder in fait si tiel home release tout son droit a un que est tenant de le franktenement tout son droit ale comment que nul mention soit fait de les heires celuy a que le release est fait To a release of a right made to any that hath an estate of Freehold in Deed or in Law no privity at all is requisite Lessee for life letteth the same land over to another for term of the life of his lessee the remainder to another in fee A release in this case by the first lessor to the lessee doth not enure by way of Mitter le droit for then should he have the whole right but as it were by way of extinguishment in respect of him that made the release and that it shall enure to him in the remainder which is a quality of an inheritance extinguished but yet the right is not extinct in deed Sect. 471. Fol. 275. b. If a disseisor make a lease for life the remainder in fee albeit they to some purposes are as one Tenant in Law yet if the disseisee release all actions to the Tenant for life he in the remainder shall not take benefit of this release for it extendeth only to Tenant for life l. 8 fo 148. Edw. Althams Case Also if the disseisor make a lease for life and the disseisee release all actions to the lessee this enureth not to him in the reversion And so our Author is to be understood of a release of Rights and not of a release of actions to the Tenant for life as to or for the benefit of him in the remainder or reversion Sect. 472. Fol. 276. a. If Tenant for life be disseised by two and he release to one of them this shall enure to them both for he to whom the release is made hath a longer estate then he that releaseth and therefore cannot enure to him alone to hold out his Companion for then should the release enure by way of Entry and grant of his estate and consequently the disseisor to whom the release is made should become Tenant for life and the reversion revested in the lessor which strange transmutation of estates in this case the Law will not suffer 13. E. 4. Discent F. 29. But if lessee for years be ousted and he in the reversion disseised and the lessee release to the disseisor the disseisee may enter for the term of years is extinct and determined And so it is if Donee in Tail be disseised by two c. But if the Kings Tenant for life be disseised by two and he release to one of them he shall hold out his companion for the disseisor gained but the estate for life So if two joynt-tenants make a lease for life and after to disseise the Tenant for life and he release to one of them he shall hold out his companion for the disseisin was but of an estate for life If Tenant for life be disseised by two and he in the reversion and Tenant for life joyn in a release to one of the disseisors he shall hold out his companion and yet it cannot enure by way of entry and Feoffment But if they severally release their severall Rights it shall enure to both the disseisors But here in Littletons Case where Tenant in fee simple is disseised by two and release to one of them this for many purposes enures by way of entry and Feoffment and therefore he to whom the release is made shall hold out his companion and be made sole Tenant of the fee simple Mes fi un disseisor infeffa 2 c. auterment est For that the Feoffees are in by Title and are presumed to have a Warranty which is much favoured in Law and the disseisors are meerly in by wrong 21 H. 6. 41. If two men do gain an Advowson by usurpation and the right Patron release to one of them it shall enure to them both for seeing their Clerk come in by admission and institution which are judiciall acts they are not meerly in by wrong for an usurpation shall cause a Remitter F. N. B. 31. M. But if a lease for life be made the remainder for life the remainder in fee and he in remainder for life disseise the Tenant for life and then the Tenant for life dieth the disseisin is purged and he in remainder for life hath but an estate for life And so note a diversity where the particular estate for life is precedent and when subsequent 19. H 6. 21. 38. H. 6. 28. Case de Occup Where our Author putteth his case of one disseised put the case that two joyntenants in fee be disseised by two and one of the disseisees release to one of the disseisors all his right he shall not hold out his companion because the release is but of the moity without any certainty If a man be disseised by two women and one of them take husband and the disseisee release to the husband this shall enure to the advantage of both the disseisors because the husband was no wrong doer but in a manner by Title If two disseisors be and they make a Lease for life and the disseisee release to one of them this shall enure to them both and to the benefit of the lessee for life also for he cannot by the release have the sole possession and estate for part of the estate is in another And so it is if the disseisors make a lease for years c. But the mortgage upon condition having broken the condition is disseised by two the mortgager having Title of entry for the condition broken releases to the one disseisor albeit they be in by wrong yet the release shall enure to them for two causes 1. For that they are not wrong doers to the Mortgager but to the Mortgagee and by Littletons case it appeareth that wrong is done to him that made the Release 2. That he that makes the Release hath but a Title by force of a condition and Littletons case is of a right Like Law is of an entry for Mortmain or a consent to Ravishment c. Sect. 473. Note that a release by one whose entry is lawfull to him that is in by wrong shall purge and take away all mean estates and titles If A. disseise B. who infeoff C. with warranty who infeoff D. with warranty and E. disseise D. to whom B. releases this doth defeat all the mean estates and warranty causa qua suprae 11. H. 4. 33. 9. H. 7. 25. 2. E. 4. 16. 21. E. 4. 78. 12. Ass 22. vide 3. H. 6. 38. Sect. 474. Fol. 276. b. If the disseisor make a lease for life and the lessee make a feoffment in fee and the disseisee release to
of entry and Feoffment as to the land but not having regard to the Seigniory and for that the possession was never actually removed or revested from the disseisor who claimeth under the Lord the Seignory is not revived But if the Lord and the stranger disteise the Tenant and the disseisee release to the stranger there the Seigniory by operation of Law is revived for the whole is vested in the stranger which never claimed under the Lord and in that case if the Lord had died and the land had survived the Seigniory had been revived Sect. 478. Fo. â—79 a. Note that where the Law in one case doth give a man severall remedies and of severall kinds there is a great art and knowledge for him to chuse his aptest remedy 28. E. 3. 98. 9. E. 4 46. 21. E. 4. 55. 41. E. 3. 10. 2. H. 4. 12. 41. E. 3. A man makes a gift in tail the remainder in fee Tenant in tail dieth without issue an estranger intrudes and he in remainder brings a Formedon and recovered by default and makes a Feoffment in fee the intrudor reverse the recovery in a writ of desceit and entry he shall detain the Land for ever and the Feoffee shall not have a writ of right And so likewise if a disseisor die seised and a stranger abate and the disseisee release to him the heir of the disseisor shall enter and detain the land for ever 9. H 7. 24. Dormit aliquando jus moritur nunquam Right may be troden down but never troden out for where it hath been said that a release of right doth somewaies enure by way of extinguishment it is so to be understood either as Littleton doth here in respect of him that makes the release or in respect that in construction of Law it enureth not alone to him to whom it is made but to others also who be estranger to the release which as hath been said is a qulaity of an inheritance extinguished As when the heir of the disseisor is disseised and the disseisor make a Lease for life the remainder in fee if the first disseisee release to the Tenant for life this is said to enure by way of extinguishment for that it shall enure to him in remainder who is a stranger to the release and yet in truth the right is not extinct but doth follow the possession viz. The Tenant for life hath it during his time and he in remainder to him and his heirs and the right of inheritance is in him in the remainder 14 H. 8. 6. b. Sect. 479. and 480. Here Littleton putteth a diversity between releases which enure by way of extinguishment against all persons and whereof all persons may take advantage and release which in respect of some persons enure by way of extinguishment and of other persons by way of mitter le droit Or between releases which indeed enure by extinguishment for that he to whom the release is made cannot have the thing released and releases which having some quality of such release are said to enure by way of extinguishment but in troth do not for that he to whom the release is made may take the thing released 11. H. 7. 25. 37. H. 6. barr 39. 38. E. 3. 10. And here Littleton putteth cases where releases do absolutely enure by extinguishment as 1. Of the Lord and Tenant for the Tenant cannot have service to be taken of himself nor one man can be both Lord and Tenant 2. A man cannot have land and a rent issuing out of the same land 3. A man cannot have land and a common of pasture issuing out of the same land Fo. 280. a. The mesne being a feme enter-marry with the Tenant peravaile if the Lord release to the feme the Seigniory only is extinct but if the release to the husband both Seigniory and mesnalty are extinct and in this case if the Lord release to the husband and wife it is a question how the release shall enure but it is no question but that a release may be made to a measualty or a Seigniory suspended in part of the estate 19. H. 6. 19. The Lord may release his Seigniory to the tenant of the land for life or in tail sic de coeteris But so cannot one release a right or an action c. 13. E. 3. Extinguishment Br. 45. and voucher F. 120. Note that by the release of all his right in the Seigniory or the Land the whole Seigniory is extinct without any words of inheritance 12. H. 4. Release 21. 18. E. 2. ibid. 5. 26. H. 8. 57. 41. Ass 6. If there be Lord and Tenant by fealty and rent the Lord granteth the Seigniory for years and the Tenant atturn the Lord release his Seigniory to the Tenant for years and to the Tenant of the land generally the whole Seigniory is extinct and the state of the lessee also But if the release had been to them and their heirs then the lessee had had the inheritance of the one moity and the other moity had been extinct Vide lib. c. Sect. 481 482. Here it appeareth by Littleton That if a man make a lease for life the remainder in fee and Tenant for life suffer a recovery by default that he in remainder should not have a Formedon by the common Law for Littleton saith that he had not any remedy before the Statute Neither is there any such Writ in that case in the Register albeit in some books mention is made of such a writ W. 2. ca. 5. 34. E. 3. Formedon 31. 11. E. 3. ibi 31. 8. E. 3. 59. F. N. B. 117. b. 7. H. 7. 13. Mes si celuy en le remainder ust entry sur le Tenant pur vie luy disseisist apres tenant entry sur luy apres tenant pur terme de vie per tiel recovery perde per default mor. ore celuy en remainder bien poit aver breve de droit envers celuy que recovera pur ceo que le mise Seigniory joine solement sur le meer droit c. Here a disseisin gotten by wrong and defeated by the entry of him that right hath is sufficient to maintain a writ of right against the recoverer in this case for albeit the seisin is defeated between the lessee for life and him in the remainder yet having regard to the recoveror who is a meer stranges and hath no title it is sufficient against him But otherwise it is against the party himself that defeateth the seisin and the law is propense to give remedy to him that right hath 7. E. 3. 62. 38. E. 3. 37. Jur. utr 1. Lands are letten to A. for life the remainder to B. for life the remainder to the right heirs of the heirs of A. A. dieth B. enters and dieth a stranger intrudeth the heir of A. shall have a writ of right of the seisin which A. had as Tenant for life Fo. 281. a. If Lands be given
Carta autem de confirmatione est illa quae alterius factum consolidat confirmat nihil novi attribuit quandoque tamen confirmat addit Flet. l. 3. ca. 14. En asc ' case un fait de confirmation est bon available lou en tiel case un fait de release nes pas bon c. Car release ne pas available mes lou est un privity c. And note that where a confirmation shall enlarge an estate there privity is required as well as in the case of the Release 9 H. 6. 22. Release 44. Littleton in this Chapter putteth eight diversities betweene a confirmation and release And in this Chapter is also to be observed eight cases wherein a release and confirmation have the like opperation in Law Vid. Sect. 516 c. fo 296. a. If the disseisor make a Lease for years to begin at Michaelmos and the disseisee confirme his estate this is void because hee hath but interesse termini and no estate in him whereupon a confirmation may enure 4 H. 7. 10. by read 22. E. 4. 39. Sect. 519. c. Fo. 296. b. Si le desseisee confirme lestate le disseisor a aver tentant a luy pur terme de sa vie enc'le disseisor ad fee simple c. pur ceo que quant son estate fuit confime donque il avoit fee tiel fait ne pâ—it change son estate sans enter fait sur luy c. alia ratio quia confirmare idem est quod firmum facere 19 H. 6. 22. 6 E. 3. confirmation 4. Sect. 520. Fo. 297. a. Nota a diversity betweene a bare assent without any right or interest and an assent coupled with a right or interest and therefore an attonement cannot be made for a time nor upon condition but if the person make a Lease for a 100 years the Patron and ordinary may confirme 50 of the yeares for they have an interest and may charge in time of vacation Lib. 5. fo 81. Fordes case If tenant for life make a lease for a 100 yeares the lessor may confirme either for part of the terme or for part of the land But an estate of freehold cannot be confirmed for part of the estate for that the estate is intire and not severall as years be Sect. 521. Fo. 207. b. If the disseisor make a gift in taile the remainder for life the remainder to the right heires of tenant in taile this extendeth only to the estate taile c. If the disseisor infeoffe A and B and the heires of B if the disseisee confirme the estate of B for his life this shall not onely extend to his companion but to his whole fee simple because to many purposes he had the whole fee simple in him and the confirmation shall be taken most strong against him that made it If a feme disseiseresse make a feoffment in fee to the use of A for life and after to the use of her selfe in taile and the remainder to the use of B in fee and then taketh husband the disseisee and he release to A. all his right this shall enure to B. and to his own wife also for by the rule of Littleton it must enure to all in the remainder But A. lets Land to B. for life and B. maketh a Lease to C. for his life the remainder to A. in fee if A. release to C. all his right this is good to perfect the estate of C. for his life But when C. dyeth A. shall be in of his old estate c. and note that in these two cases the fee is devested and vested all at one instant c. Vide fo 297. b. Pur ceo que le remainder est dependant c. by this some have gathered that if a disseisor make a Lease for life reserving the reversion to himselfe and the disseisee confirme the estate of the disseisor that he may enter upon the lessee because the estate of him in the reversion dependeth not upon the estate for life as the remainder but all is one for by the confirmation made to him in the reversion all the right of him that confirmeth is gone as well as when he maketh it to him in remainder and he cannot by his entry avoid the estate of the lessee for life but he must avoid the estate of the lessor which against his own confirmation he cannot doe and it hath been adjudged that if a disseisor make a Lease for life and after levy a fine of the reversion with proclamations and the five years passe so as the disseisee is for the reversion barred he shall not enter upon the Lessee for life Reported by Sir Jo. Popham chief Justice Where the particular estate and the remainder depend upon one title there the defeating of the particular estate is a defeating of the remainder But where the particular estate is defeasible and the remainder by good title there though the particular estate be defeated the remainder is good As if the lessor disseise A. lessee for life and make a Lease to B. for the life of A. the remainder to C. in fee albeit A. reenter and defeate the estate for life yet the remainder to C. being once vested by good title shall not be avoided for it were against reason that the lessor should have the remainder againe against his own livery So it is if a lease be made to an Infant for life the remainder in fee the Infant at his ful age disagree to the estate for life yet the remainder is good Pl. Com. Colthirsts Case fo 298. a. If a lease be made to A. for the life of B. the remainder to C. in fee A. dyeth before an Occupant enter here is a remainder without a particular estate and yet the remainder continueth 17 E. 3. 48. A rent is granted to the Tenant of the land for life the remainder in fee this is a good remainder albeit the particular estate continued not for coinstante that he tooke the particular estate eo instante the remainder vested and the suspension in Judgement of Law grew after the taking of the particular estate 3 E. 3. Abb. Ass If a man grant a rent to B. for the life of Alice the remainder to the heirs of the body of Alice this is a good remainder and yet it must vest upon an instant 7. H. 4. 6. Sect. 522 523 524. Fol. 298. 2. A Release is more forcible in Law then a Confirmation if the disseisee and a stranger disseise the heir of the disseisor and the disseisee confirm the estate of his companion this shall not extinguish his right that was suspended So as if the heir of the disseisor re-enter the right of the disseisee is revived And so it is if the grantee of a rent charge and a stranger disseise the Tenant of the Land and the grantee confirm the estate of his companion the Tenant of the land re-enter the rent is received for
44. 19 R. 2. Tresp 255. 10 H. 7. 9. F.N.B. 33. q. 22 H. 6. 33. per Moyle 43. E. 3. 12. Bract. 242 c. Brit. fol. 126. Sect. 545 546 547 548 549 c. Fol. 308. Si jeo lessa terra a un home pur terme dans puis jeo confirme son estate sans pluis parols mitter en le fait parcel il nad pluis grandeur estate que pur terme dans sicome il avoit a devant Mes si jeo release a luy c. il ad estate de franktenement Si jeo estant deins age lessa terre a un auter pur terme de 20. ans puis il grant le terre a un auter 10. ans parcel de son terme en cest case quant jeo sue de plein age si jeo release al grantee de mon lessee c. cest release est void pur ceo que il luy ad asc ' privity per-entrer luy moy c. Mes si jeo confirm son estate ceo est bone Mes si mon lessee grant tout son estate a un auter donque mon release fait al grantee est bon effectual Si home grant un rent charge issuant hors de son terre a un auter pur terme de son vie puis il confirma son estate en le dit rent a aver tener a luy in fee tail ou in fee simple cest confir ' est void quant a enlarge son estate pur ceo que celuy que confirme navoit asc ' reversion en le rent Mes si homo soit seisin in fee de rent service on de rent charge il grant le rent c. auterment en pur ceo que il avoit un reversion del rent So note the diversity between a rent newly created and a rent in esse 21 E. 3. 47. 15 E. 4. 8 b. Pl. Com. 35. 8 H. 4. 19. But in the first case the grantor may grant to the grantee for life and his heirs that he and his heirs shall distrain for the rent c. and this shall amount to a new grant and yet amount to no double charge Ex paucis plurima concipit ingenium CHAP. X. Of Attornment Sect. 551. Fol. 309. a. ATtornment is an agreement of the Tenant to the grant of the Seigniory or of a Rent or of the Donee in Tail or Tenant for life or years to a grant of a reversion or remainder made to another Bract. l. 2. fo 81 Britt f. 105. b. 176. 177. Si dominus Attornare possit servitium tenentis contra voluntatem tenentis tale sequeretur inconveniens quod possit eum subjugare capitali inimico suo per quod teneretur sacramentum fidelitatis facere ei qui eum damnificare intenderat Every grant must take effect as to the substance thereof in the life both of the grantor and the grantee l 1. fo 104 105. Shelleys Case Since Littleton wrote if a Fine be levied of a Seigniory c. to another to the use of a third person and his heirs he and his heirs shall distrain without any Attornment because he is in by the Statute of 27 H. 8. cap. 10. by transferring the state to the use and so he is in by act in Law lib 6. fol. 68. Sir Moyles Finches Case So it is if a man by Deed indented and inrolled according to the Statute bargain and sell a Seigniory c. to another the Seigniory shall passe without Attornment and so it is of â— Rent a Reversion and a Remainder 27 H. 8. cap. 16. Vide Sect. 584. But if the Conusee of a Fine before any Attornment by Deed indented and inrolled bargain and sell the Seigniory to another the bargainee shall not distrain because the bargainor could not distrain sic de similibus for Nemo potest plus juris ad alium transferre quam ipse habet vide Sect. 149. where upon a Recovery the Recoveror shall distrain and avow without Attornment A grant to the King or by the King to another is good without Attornment by his Prerogative 49 E. 3. 4. 34 H. 6. 8. 6 E. 4. 13. If there be Lord Mesne and Tenant and the Mesne grant over his Mesnalty by Deed the Lord release to the Tenant whereby the Mesnalty is extinct and there is a rent by surplusage an Attornment to the grant of this rent seck is good although the quality of that part of the rent is altered because it is altered by act in Law If a reversion of two acres be granted by Deed and the lessor before Attornment levy a Fine of one of them and the Tenant attorn to the grantee by Deed this is good for the other acre If the reversion be granted of three acres and the lessee agree to the said grant for one acre this is good for all three and so it is of an Attornment in Law if the reversion of three acres be granted and the lessee surrender one of the acres to the grantee c. 18 E. 3. Variance 63. 22 E. 3. 18. l. 2. fo 67 b. Tookers case fo 309 b. Reg. the Attornment must be according to the grant either expresly or impliedly 39 H. 6. 3. Impliedly as if a reversion be granted to two by Deed and the lessee Attorn to one of them according to the grant this Attornment shall enure to both the grantees and so it is if one grantee dye the Attornment to the survivor is good 11 H. 7. 12. If the Lord grant by Deed his Seigniory to A. for life the remainder to B in fee A. dyeth and then the Tenant Attorn to B. this Attornment is void because it is not according to the grant for then B. should have a remainder without any particular estate 20 H. 6. 7. If a reversion be granted to a man and a woman they are to have moities in Law but if they intermarry and then Attornment is had they shall have no moities beause it is by act in Law Pl. Com. 187. 483. If a feme grant a reversion to a man in fee and marry with the grantee the lessee Attorne to the husband this is a good attornment in Law to the husband 2 R. 2. Attornment 8. If a reversion be granted by Deed to the use of I. S. and the lessee hearing the Deed read or having notice of the contents thereof Attorn to Cesty que use this is an implyed Attornment to the grantee l. 4. fo 61. Hemings case Sect. 552. Fo. 310. a b. Note that Littleton expresseth not what estate is granted and very materially for if the former grant were in fee and the latter grant were for life and the Tenant doth first attorn to the 2d grantee he cannot after attorn to the first grantee to make the fee simple pass for that should not be according to the grant but in that case the Attornment to the first is countermanded If a reversion upon an
of the whole Lib. 2. fo 67. Bookers case If either the grantor or grantee dye the Attornment is countermanded but if the Tenant dye he that hath his Estate may Attorn at any time If the Tenant grant over his estate his Assignee may attorn Lib. 4. fo 8. l. 6. fo 57. l. 9. fo 34. 4 H. 6. 29. 18 E. 4. 10. If an Infant hath Lands by purchase or by discent he shall be compelled to Attorn in a per que servitia 42 E 3. Age 33. 18 H. 6. 2. l. 9. fo 84. 85. Coyns case 4. M. Dy. 137. 7 E. 2. Age 140. If an infant be lessee he shall be compelled to Attorn in a quid Juris clamat the Attornment of an Infant to a grant by Deed is good and shall bind him because it is lawfull albeit he be not upon that grant by Deed compellable to Attorne Sect. 567. Fol. 315. b. The grant of the reversion by Deed with the attornment of lessee for years do countervaile in Law a feoffment by livery as to the passing of the freehold and inheritance And Tenant by statute Merchant or Staple or by Elegit must also attorn for the grantee may have a venire facias ad computat or tender the mony c. and discharge the Land and if the reversion be granted by Fine they shall be compelled to attorn in a Quid juris clamat 6 E. 3. 53. 25 E. 3. 53. Br. Attor 48. 32 E 3. scire facias 101. Dy. 1. a. And so the Executors that have the Land untill the debts be paid must attorn upon the grant of the reversion although they have not any certain terme for years Sect. 568. Fo. 316. a. If Tenant in Dower or by the curtesie grant over his or her estate and the heire grant over the reversion the Tenant in Dower or by the Curtesie may attorn because at the time of the grant made they were attendant to the heire in reversion and the grantee cannot be Tenant in Dower or by the Curtesie and if the reversion be granted by Fine the Fine must suppose that the Tenant in Dower or by the Curtesie did hold the land albeit they had formerly granted over their estate and albeit the reversion doth passe by the Fine yet the Quid juris clamat must be brought against him that was Tenant at the time of the note levied and the grantee of the reversion must bring an action of waste against the Assignee of Tenant in Dower or by the Curtesie for they themselves cannot hold of any but of the heire and therefore in respect of the privity they shall attorn and be subject to an action of waste as long as the reversion remaineth in the heire albeit they have granted over their whole estate and note that if the grantee of the reversion doth bring an Action of wast against the Assignee of Tenant by the Curtesie the plaintiffe must rehearse the Statute which proveth that no prohibition of waste in that case lay at the common Law as it did if the heir had brought it against the Tenant by the Curtesie himselfe and therefore some doe hold that if the heir do grant over the reversion that the Attornement of the Assignee of the Tenant by Curtesie or of Tenant in Dower is sufficient because they afterward must be attendant and subject to the Action of waste 10. H. 4 Attornment 16. 11 H. 4. 18. F.N.B. 55 E. Reg. fo 72. 4 E. 3. 26. If the reversion of lessee for life be granted and lessee for life Assigne over his estate the lessee cannot attorne but the attornment of the Assignee is good because it behoveth that the Tenant of the land doe attorne and after the Assignment there is no tenure or attendance c. between the lessee and him in reversion 18 E. 4. 10. b. 26 E. 3. 62. 5 H. 5. 10. Sect. 569 570 571 552 573. Fo. 316. b. No Quid juris clamat lyeth against Tenant in taile but if a man make a gift in taile the remainder in fee and the Seigniory or rent charge issuing out of the land be granted by Fine the Conusee shall maintaine a per que servitia or a Quem redditum and compell him to Attorne for herein his estate of inheritance is no priviledge to him for that a Tenant in fee simple as his Estate was at the Common Law is also compellable in these cases to attorne Lou le reversion est dependant sur lestate del franktenement suffist que le tenant del franktenement attorn sur grant del reversion c. Si lease pur terme dans c. ou done en le taile soit fait reserve un rent per le grant del reversion en tiel case le rent passara pur ceo que tiel rent est incident al reversion nemy è converso If a man let land to another for his life and after he confirme by his Deed the estate of the Tenant for life the remainder to another in fee and the Tenant for life accept the Deed c. Albeit he in remainder in this case hath no remedy to come to the Deed during the life of Tenant for life yet because he is privy in Estate he shall not maintaine an action of waste without shewing the Deed but when the remainder is once executed he shall not need to shew the Deed Vide Pl. Com. Colthirsts case D St. Ch. 20. fol. 93 94. Pl. Com. 149. Throckmortons case 45 E. 3. 14. 15. 11 H. 4. 39. 14 H 4. 31. As in Physick nullum medicamentum est idem omnibus so in Law one forme or president of conveyance will not fit all Cases Sect. 574. Fo. 318. a. If one joyntenant make a Lease for years reserving a rent and dye the survivor shall not have the rent therefore Littleton here addeth materially for the privity that was betwen the Tenant for life and them in the reversion 2 Eliz. Dyer 176. Tenant for life shall not be compelled to attorn in a Quid juris clamat upon the grant of a reversion by Fine holden of the King himselfe without licence For it is a generall rule that when the grant by fine is defeasible there the Tenant shall be compelled to attorne 45 E. 3. 6. b. 13 Eliz. Dy. 188. Lib. 3. fo 86. Justice Windhams case 36 H. 6. 24. As if an Infant levy a Fine this is defeasible by Writ of Errour during his minority and therefore the Tenant shall not be compelled to attorn So if the land be holden in ancient Demesn and he in the reversion levy a Fine of the reversion at the Common Law this is reversible in a Writ of Deceit c. 5 E. 3. 25. 3 E. 3. Ancient Demesn 16. So if an Alienation be in Mortmain the Lord Paramount may defeat it c. 17 E. 3. 7. 22 E 3. 18. So if a Tenant in Tail had levied a Fine it was defeasible by the issue in Tail 24 E 3. 25. b. 37
wife notwithstanding the alienation of her husband Dyer 4 5. P. M. 146. 3 El. Dyer 191. l. 8. f. 71 72. Greveleys Case If the husband levy a Fine with Proclamations and dye the wife must enter or avoid the estate of the Conusee within five years or else she is barred for ever by the Statute of 4 H 7. for the Statute of 32 H 8. doth help the Discontinuancy but not the barre and the Statute speaketh of a Fine and not of a Fine with Proclamations 6 E 6. Dyer 72. b. 4 H 7. c. 24. Feme Tenant in Tail taketh husband the husband maketh a feoffment in fee the wife before entry dyeth without issue he in the reversion or remainder may enter For 1. The reversion or remainder cannot be discontinued in this case because the estate Tail is not discontinued 2. The words of the Statute be Shall not be prejudiciall c. to the wife or her heirs or such as shall have Right Title or Interrest by the death of such wife but the same wife and her heirs c. shall or lawfully may enter c. By which words the entry of him in the reversion or remainder in that case is preserved The husband is Tenant in Tail the remainder to the wife in Tail the husband make a feoffment in fee by this the husband by the Common Law did only discontinue his own Estate taile but his wifes remainder but at this day after the death of the husband without issue the wife may enter by the said action of 32 H. 8. If the husband hath issue and maketh a feoffment of his wifes land and the wife dyeth the heire of the wife shall not enter during the husbands life neither by the Common law nor by the Statute 8 E. 2 tit cui in vita 26 34. E. 1. ibid. 30. 10 E. 3. 12. Dy. 21. Eliz. 363. Sect. 565. Fo. 326. b. By the Statute of 11 H. 7. ca. 20. If the woman hath any Estate in tail joyntly with her husband or only to her self or to her use in any lands or haereditaments of the inheritance or purchase of her husband or given to the husband and wife in taile by any of the Ancestors of the husband or by any other person seised to the use of the husband or his Ancestors and shall hereafter being sole or with any other after taken husband discontinue c. the same every such discontinuance shall be void and that it shall be lawfull for every person to whom the interest title or inheritance after the decease of the said woman should appertaine to enter c. So as if such a feme Tenant in taile do make any discontinuance in fee in taile or for life although it be with warranty yet this doth not take away the entry after her death either of the issue or of him in reversion or remainder Vide Sect. 697. l. 3. fo 50 51. Sir George Brownes case and l. 3. f. 60 c. Lin. Coll. case P. 1. f. 176. Mildmayes case Dy. 3. 4. P.M. 146. 8 El. Dy. 448 15 El. 340. 19 El. 354. 20 El. 362. 27 H. 8. 23. l. 5. f. 79. Fitz. case and Grevelys case l. 8. fo 71 c. If Lands were intailed to a man and his wife and to the heirs of their two bodies and the husband had made a feoffment in fee and dyed and then the wife dyed this had been a discontinuance at the Common Law for the title of the issue is as heir of both their bodies and not as heir to any one of them and his entry must ensue his title or action But this is remedied by the Statute of 32 H. 8. Tenant in taile shall have a quod permittat 4 E. 3. 38. 43 E. 3. 25. 4 E. 4. 25. F. N.B. 124. And he shall have a writ of Customes and services le debet solet but shall not have it in the debt only 2 E. 2. droit 28. So he shall have a Secta ad molendum in le debet solet but not in the debet tantum F.N.B. 123. Tenant in taile shall have a writ of entry in consimili casu an Admesurement a nativo habendo cessavit escheat waste c. 21 E. 3. 11. 5 E. 3. 23. 11 H. 4. 49. But tenant in taile shall not have a writ of right sur disclaimer nor a quo jure nor a ne injuste vexes nor a nuper obiit or Rationabile parte nor a Mordanc nor a sur cui in vita for these and the like none but Tenant in fee shall have and the highest writ that a Tenant in taile can have is a Formedon 2 E. 3. droit 28. 13 H. 7. 24. 5 E. 4. 2. 20 E. 3. Avowry 13â— F.N.B. 10. 46 E. 3. cui in vita 33. Sect. 596 597. Fo. 327. b. It is provided by the Statues of W. 2. c. 1 De donis cond quod non habeant illi quibus tenementum sic fuerit datum potestatem alienandi c. So as these words non habent potestatem alien do work these effects viz. as to lands that a feoffment barreth not the issue of his action but worketh a discontinuance to barre him of his entry as to rents or any thing in esse that lye in grant that the said words do his power â—o make any discontinuance as to rents c. newly created that they take away his power to make them to continue longer than during his life 18 E. 3. 12. 24 E. 3. 28. 36 Ass 8. 5 E. 4. 3. 4 H. 7. 17. Pl. Com. Smith and Stapletons case But there is a diversity between alienation working a discontinuance of an estate which taketh away an entry and an alienation working divesting or displacing of estates which take away no entry As if there be Tenant for life the remainder to A. in taile the remainder to B. in fee if Tenant for life doth alien in fee this doth divest and displace the remainders but worketh no discontinuance and so note that to every discontinuance there is necessary a divesting or displacing the estate and turning the same to a right for if it be not turned to a right they that have the Estate cannot be driven to an action therefore such inheritances as lye in grant cannot by grant be discontinued because such a grant divests no Estate but passeth only that which he may lawfully grant and so the Estate it self doth descend revert or remaine as shall be said hereafter A. maketh a gift in tail to B. who maketh a gift in tail to C. C. maketh a feoffment in fee and dyeth without issue B. hath issue and dyeth the issue of B. shall enter for albeit the feoffment of C. did discontinue in reversion of the fee simple which B had gained upon the estate tail made to C. yet it could not discontinue the right of entaile which B. had which was discontinued before and therefore when C. died without issue
then did the discontinuance of the Estate taile of B. which passed by his livery cease and consequently the entry of the issue of B. lawfull * Also nate that a discontinuance made by the husband did take away the entry only of the wife and her heirs by the common Law and not of any other which claimed by title paramount above the discontinuance As if lands had beene given the husband and wife and to a third person and to their heires and the husband had made a feoffment in fee this had been a discontinuance of the one moity and a disseisin of the other moity if the husband had dyed the survivor should have entred in the whole for he claimed not under the discontinuance but by title paramount from the first feoffor and seeing the right by law doth survive the Law doth give him a remedy to take advantage thereof by entry for other remedy for that moity he could not have Sect. 600. Fo. 328 a. It is a Rule in Law that the disseisee or any other that hath a right onely by his release or confirmation cannot make any discontinuance because nothing can passe thereby but that which may lawfully passe 9 E. 4. 18. 12 E. 4. 11. 5 H. 4. 8. 21 H. 6. 58. By a feoffment the freehold doth passe by open livery to the feoffee and by a Release a bare right Sic nota diversit Sect. 601 602 603. fo 328. b. 329. a. A warranty being added to a release or confirmation and descending upon him that right hath to the lands maketh a discontinuance otherwise it is out of the reason of the Law and worketh no discontinuance if the warranty discend upon another If Tenant in taile release to his disseisor and bind him and his heires to warranty this is a discontinuance For if the issue in taile should enter in this case the warranty which is so much favoured in Law should be destroyed and therefore to the end that if Assets in fee simple do descend he to whom the release is made may plead the same and barre the demandant by which meanes all rights and advantages are saved Sect. 604. When a Bishop c. make an Estate Lease grant or rent-charge warranty or any other act which may tend to the diminution of the revenues of the Bishoprick c. which should maintaine the successor there the privation or translation of the Bishop c. is all one with his death But Where the Bishop is patron and ordinary and confirmeth a Lease made by the parson without the Deane and Chapter and after the Parson dyeth and the Bishop collateth another and then is translated yet his confirmation remaineth good for the revenues that are to maintaine the successor are not thereby diminished and so it is in case of resignation 29 E. 3. 16. ibid. garr 99. cl contr Vide Sect. 608 609 610 611 612 613 Fo. 330 331. a. Tiels choses queux passunt en asc ' cases de tenant en le taile tantsolement per voy de grant ou per confirmation ou per releaserien poit passe pur faire estate a celuy a que tiel grant ou confirmation ou release est fait forsque ceo que le tenant en taile poit droitulerment faire ceo ne forsque pur terme de la vie c. Hereby it appeareth that a feoffment in fee albeit it be by parol is of greater operation and estimation in Law then a grant of a reversion by Deed though it be inrolled and Attornment of the lessee for yeares of a release or a confirmation by Deed. Also having regatd to the issue in taile and to them in reversion or remainder Tenant in taile cannot lawfully make a greater Estate than for terme of his life But in regard of himselfe a release or grant made by him leaveth no reversion in him but put the same in Abeiance so as after such release or grant made he shall not have any action of wast and he shall not enter for a forfeiture c. 13 H. 10. a. Br. Release 95. Sect. 614. Fo. 331. b. The Feoffee of Tenant in taile hath no rightfull Estate having respect to two persons the one is the donor whose reversion is divested and displaced and the other is to the issue in taile who is driven to his action to recover his right Deforciare signifieth to withold Lands or Tenements from the right owner in which case either the entry of the right owner is taken away or the deforceor holdeth it so fast as the right owner is driven to his reall praecipe wherein it is said unde A. eum juste deforceat or the deforceor so disturbeth the right owner as he cannot injoy his owne Brac. l. 4. fo 238. Fleta l. 5. ca. 11. There is a writ called a Quod ei deform and lyeth where Tenant in taile or tenant for life loseth by default by the Staute he shall have a Quod ei deforc against the recoveror and yet he cometh in by course of Law Westm 2. ca. 4. Sect. 615 616 617 618. Fo. 332. a.b. An Advowson is a thing that lyeth in grant and passeth not by livery of seisin 5 E. 3. 58. 21 E. 3 37 38. 43 E. 3. 1. b. 11 H. 6. 4. 5 H. 7. 37. 18 H. 8. 16. El. Dy. 323. b. If a remainder or a rent service or a rent charge or an Advowson or a common or any other inheritance that lyeth in grant be granted by Tenant in taile it is no discontinuance Brac. l. 2. f. 3. f. 266. 318. Brit. fo 187. Mir. ca. 2. S. 17. Fle. l. 3. c. 15. For that it is a maxim in Law That a grant by Deed of such things as do ly in grant and not in livery of seisin do worke no discontinuance But the particulars reason is for that of such things the grant or Tenant in taile worketh no wrong either to the issue in taile or to him in reversion or remaindet for nothing doth passe but onely during the life of Tenant in taile which is lawfull and every discontinuance worketh a wrong 6 E. 3. 56. 4 H. 7. 17. 21 H. 7. 42. 21 H 6. 52. 53. 5 E 4. 3. 21 E. 4. 5. â—2 R. 2. discontinuance 35. Br. 19 E. 3. Br. 468. Pl. Com 435. 18 Ass p. 2. If Tenant in taile of a rent service c. or of a reversion or remainder in taile c. grant the same in fee with warranty and leaveth assets in fee simple and dyeth this is neither bar nor discontinuance to the issue in taile but he may distreine for the rent or service or enter into the Land after the decease of Tenant for life But if the issue bringeth a Formedon in the discending and admitting himself out of possession then he shall be barred by the warranty and Assets 33. E. 3. from 47. 13 H. 7. 10. 36. Ass 8. 4 H. 7. 17. Tenant in taile of a rent disseises the Tenant of the
Land and makes a feoffment in fee with warranty and dyeth this is no disccontinuance of the rent 3 H. 7. 12. 9 E. 4. 22. And where the thing doth ly in livere as Lands and Tenements yet if to the conveyance of the freehold or inheritance no livery of seisin is requisite it worketh no discontinuance As if Tenant in Taile exchange Lands c. or if the King being Tenant in Taile grant by his Letters Patents the Lands in fee there is no discontinuance wrought 38 H. 8. Pat. Br. 10. 1. Pl Com 233. l. 1. f. 26. Altwoods case Of a thing that lyeth in grant though it be granted by Fine yet it is no discontinuance and this is Regularly true 48 E. 3. 23. If Tenant in taile make a Lease for years of Lands and after levy a Fine this is a discontinuance for a Fine is Feoffment of Record and the freehold passeth 15 E. 4. discontinuance 30. But if Tenant in taile make a Lease for his owne life and after levy a Fine this is no discontinuance because the reversion expectant upon a Statute of freehold which lyeth only in grant passeth thereby 6 H. 8. 56 57. Sect. 620. Si Tenant in tail fait Lease a Terme de vie le lesee c. apres tenant in taile grant per son fait le reverson in fee a un auter le tenant a terme de vie attornment mor. vivant le Tenant in taile le grantee del reversion enter c. en la vie le Tenant in taile donque ceo est un discontinuance en fee. For when the revetsion in this case executed in the life of Tenant in taile it is equivalent in judgement of Law to a Feoffment in Fee for the state for life passed by livery 32 E. 3. discontinuance 2. 3 H. 4. 9. 34. Ass 6. p. 4. 38. Ass 6. p. 6. But if the Tenant in taile make a Lease for Terme of the life of the Lessee c. and grant over the reversion and dyeth and after the death of Tenant in taile the Lessee dye the entry of the issue is lawfull because by the death of the Lessee the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also If Tenant in taile make a Lease for life the remainder in fee this is an absolute discontinuance albeit the remainder be not executed in the life of Tenant in taile because all is one estate and passeth by livery and so note a diversity between a grant of a reversion and a limitation of a remainder 21 H. 6. 52 53. B. Tenant in Tail makes a gift in Tail to A. and after B. releases to A. and his heirs and after A. dyeth without issue the issue of the first Donee may enter upon the collateral heir because A. had not seisin and execucion upon the reversion of the land in the demesn as of fee. But if Tenant in Tail make a lease for the life of the lessee and after release to him and his heirs this is an absolute discontinuance because the fee simple is executed in the life of Tenant in Tail If Tenant in Tail of a Manor whereunto an Advowson is appendant make a feoffment in fee by Deed of one acre with the Advowson and the Church becommeth void and the feoffee present Tenant in Tayl dyeth the Church becometh void the issue shall not present untill he hath reconcontinued the acre But if the feoffee had not executed the same by Presentment then the issue in Tail should have presented And so was it at the Common Law of the husband seised in the right of his wife Mutatis mutandis 34 E. 1. Qu. imp 179. 22 E. 3. 6. 17 E. 3. 3. 33 E. 3. qu. imp 196. 23 Ass 8. If the husband and wife make a lease for life by Deed of the wives land reserving a rent the husband dyeth this was a Discontinuance at the Common Law for life and yet the reversion was not discontinued but remained in the wife otherwise it is as if the husband had made the lease alone 38 E. 3. 32. 18. Ass 2. 18 E. 3. 54. 22 H. 6. 24. If Tenant in Tail make a lease for life of the lessee and after grant the reversion with Warranty and dyeth before execution this is no discontinuance because the discontinuance was but for life and the Warranty cannot enlarge the same Bro. Discontinuance 3. 21 H. 7. 11. l. 1. fo 85. l. 10. fo 96 97. If Tenant in Tail make a Lease for life and grant the reversion in fee and the lessee attorn and that grantee grant it over and the lessee attorn and then the lessee for life dyeth so as the reversion is executed in the life of Tenant in Tail yet this is no Discontinuance because he is not in of the grant of the Tenant in Tail but of his grantee 15 E. 4. Discont 30. Vide Sect. 642. fol. 333 b. If Tenant in Tail make a lease for life and after disseiseth the lessee for life and maketh a feoffment in fee the lessee dyeth and then Tenant in Tail dyeth albeit the fee be executed yet for that the fee was not executed by lawful means it is no Discontinuance Sect. 625. Fol. 335. a. Littleton here putteth his case of a reversion immediately expectant upon the gift in Tail Also it is to be intended of a feoffment made to the donor solely or only for if the donee infeoff the donor and a stranger this is a Discontinuance of the whole land 41 Ass 2. 41 E. 3. 2. 28 H 8. Dyer 12. lib. 1. fo 140. in Chudleys case 9 E. 4. 24. b. But if Tenant for life make a lease for his own life to the lessor the remainder to the lessor and estranger in fee in this case forasmuch as the limitation of the fee should work the wrong it enureth to the lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger Nul poit discont ' lestate en taile si non que il discont ' le reversion c. ou le remainder c. 40 Ass 36. 61 Ass 36. 18 E. 3. 45. F N B. 142 a. Pl. Com. 555. And therefore if the reversion or remainder be in the King the Tenant in Tail cannot discontinue the estate Tail But Tenant in Tail the reversion in the King might have barred the estate Tail by a Common recovery untill the Stature of 33 H. 18. cap. 20. which restraineth such a Tenant in Tail but that Common Recovery never barred nor discontinued the Kings reversion 33 H 8. Tail Br. 41. If a feme covert be Tenant for life and the husband make a Feoffment in fee and the lessor enter for the forfeiture here is the reversion revested and yet the Discontinuance remained at the Common Law 27 Ass p. 60. 29 Ass 43. 11 Ass 11. 16. Ass 11 18 E. 3. 45. Sect. 632. Fol. 336. b. Si
le Baron soit seisee de cert terre en droit sa feme fait feoffement in fee sur Condition devy c. When the heir in this case hath entred for the Condition broken and hath avoided the feoffment the estate of the heir vanisheth away and presently the estate vesteth in the feme or her heirs without any Entry or Claim by her or them for the heir enters in respect of the Condition upon the reall Contract and not of any right and if the husband himselfe had re-entred the state had vested in his Wife And therefore where Littleton and our Books say That the wife shall enter upon the heir the meaning is That after the re-entry of the heir she may enter 4 H. 6. 2. 9 H 7. 24. b. l. 8. f. 43 44. Whittinghams Case Sect. 633. Fo 337. b. If the husband within age take a wife feme Tenant in Tail generall and the husband make a gift in Tail and dyeth within age in this case the wife may enter as Littleton here holdeth or the heir of the husband in respect of the new reversion descended unto him may enter But if the heir enter presently thereupon his estate vanisheth If husband and wife be both within age and they by deed indented joyn in a Feoffment reserving a rent the husband dyeth the wife may enter or have a Dum fuit infra aetat But if she were of full age she shall not have a Dum fuit infra aetat for the Non-age of her husband albeit they be but one person in Law 14 E. 3. Breve 282. 14 E. 3. Dum fuit c. 6. F. N B. 892. Sect. 634. 2. Joyntenants estant deins age fontun feoffment in fee lun de les infants devy celuy que survesquist poit enter en bentierly c. For that they may joyn in a Writ of Right and therefore the Right shall survive But they cannot joyn in a Dum fuit infra aetat because the Nonage of the one is not the Nonage of the other 21 E 3. 50. 18 E. 2. Breve 831. 6 E. 3. 4. 9 H. 6. 6. 19 H. 6. 6. 39 H. 6. 42. 34 H 6. 31. In this case if one joyntenant had made a Feoffment in fee and dyed the right should not have survived for the joynture was severed for a time If two joyntenants be and the one is of full age and the other within age and both they make a Feoffment in fee and he of full age dyeth The Infant shall enter or have a Dum fuit c. but for the moity Sect. 635. Fol. 337. b. Serroit encounter reason que un feoffment fait per celuy que ne fuit able de faire tiel feoffment greevara ou ledare auter de toller eux de lour entre c. Meliorem facere potest minor condic ' deteriorem nequaquam Bract. fo 14. Brit. f. 88. a. Nota a speciall heir shall take advantage of the infancy of the Ancestor As if Tenant in Tail of an acre of the Custome of Borough English make a Feoffment in fee within age and dyeth the yongest Son shall avoid it for he is privy in blood and claimeth by Discent from the Infant And so note that a cause to enter by reason of infancy is not like to Conditions Warranty and Estoppels which ever descend to the heir at the Common Law Sect. 636. Fol. 338. a. Note there be 3 kinds of Surrender viz. a Surrender properly taken at the Common Law which is a yielding up of an estate for life or years to him that hath an immediate estate in reversion or remainder wherein the estate for life or years may drown by mutuall agreement between them 2. A Surrender by Custom of Lands holden by Coppy or of Customary estate vide Sect. 74. homo com gen ** And 3. A Surrender improperly taken vide S. 550. of a Deed. And so of a Surrender of a Patent and of a rent newly created and of a fee simple to the King 2 El. Dyer 176. 14 H. 7. 3. 27 Ass 37. 49 E. 3. 2. 11 H. 4. 2. 12 H. 4. 21. 13 H. 4. 13. And a Surrendr properly taken is of two sorts viz. 1 A Surrender in Deed by expresse words whereof Littleton here putteth an Example and he putteth his case of a Surrender of an estate in possession for a right cannot be sureendered 2. A surrender in Law which in some cases is of greater force then a Surrender in Deed. As if a man make a lease for years to begin at Michaelmas next this future interest cannot be surrendred because there is no reversion wherein it may drown but by a surrender in Law it may be drowned As if the Lessee before Michaelmas take a new lease for years either to begin presently or at Michaelmas this is a surrender in Law of the former lease Fortior et aequior est dispositio legis quam hominis 14 H. 8. 15. 50 E. 3. 6. 44 Ass 3. 35 H. 8. Dyer 37. 8 Ass 20. 4 M. Dyer 141. 11 El. Dyer 280. 21 H. 7. 6. 14 H 7. 4. li. 6. fo 69. Sir Moyl Finches Case Also there is a Surrender without Deed whereof Littleon putteth here an Example of an estate for life of lands And also there is a Surrender by Deed and that is of things that lie in grant 16 H. 6. 33. 27 Ass 46. 14 H. 7. 4. 1 H. 6. 1 Pl. Com. 541. And albeit a particular estate be made of lands by Deed yet may it be surrendred without Deed in respect of the nature and quality of the thing demised because the particular might have beene made without Deed. and so on the other side If a man be * Tenant by the Curtesie or Tenant in Dower of an Advowson Rent or other thing that lies in grant albeit the estate begin without Deed yet in respect of the nature and quality of the thing that lies in grant it cannot be surrendred without Deed. And so if a lease for life be made of lands the remainder for life albeit the remainder for life began without Deed yet because remainder and reversions though they be of lands are things that lie in grant they cannot be surrendred without Deed. Qu. fi le fits la feme poit enter c. It is holden of some That after the surrender the issue in Tail during the life of Tenant for life may enter for that having regard to the issue the state for life is drowned and consequently the inheritance gained by the lease is by the acceptance of the surrender vanished and gone as if Tenant in Tail make a lease for life whereby he gaineth a new reversion if Tenant for life surrender to the Tenant in Tail the estate for life being drowned the reversion gained by wrong is vanished c. and he is Tenant in Tail again against the opinion Obiter of Portington 21 H. 6. 53. vide lib. fo 338. b. Mes il nost rien a
condic ' suam deter ' nequaquam Brit. f. 143. As a Parson Vicar Archdeacon Prebend Chantry Priest c. may have an action of Waste and in the Writ it shall be said Ad exhaereditationem ecclesiae c ipsius B. or Praehendae ipsius A. F N B 55. d. 57 E. 2. 10 H. 7. 5. And the Parson c. that maketh a lease for life shall have a Consimili casu during the life of the lessee and a Writ of Entry ad Com. legem after his death or a Writ ad terminum qui praeteriit or a quod permittat in the debet and none can maintain any of these Writs but a Tenant in fee simple or fee tail F N B l. m. n. 20 H. 3. Jur. utr Temps E. 3. Jur. utr 141. 14 E. 3. ibid. 4. F N B. 50. 30 E. 3. 26. 21 E. 3. 11. Entry 10. F N B 206. fol. Reg. 237. 4 E. 4. 2. 8 E. 3. Entry 3. 7 E. 3. 54 55. And a Parson c. may receive Homage which Tenant for life cannot do Temps E. 1. Encumbent 19. Item a Parson e. shall have a Writ of Mesne and a Contra formam feoffmenti F N B. 49. l. 50. a. fo 341. b. But a parson cannot make a discontinuance for that should be to the prejudice of his successor to take away his entry and to drive him to a reall action Also if a parson c. make a Lease for years reserving a rent and dyeth the Lease is determined by his death as if Tenant for life had made a Lease no acceptance of the rent by the successor can make it good Also in a reall action a Parson Vicar Archdeacon c. shall have aid of the Parron and ordinary as Tenant for life shall have 20 E. 3. aid 30. 25 E. 3. 54. 8 E. 3. 45. 8 H. 6. 24. 11 H. 6. 9 6 E. 3. 45. 43. Ass p. 13. F.N.B. 129. So as it is evident that to many purposes a parson hath but in effect an Estate for life and to many a qualified fee simple but the entire fee and right is not in him and that is the reason that he cannot discontinue the fee simple that he hath not nor ever had for as it hath been said Omnis privatio presupponit habitum and for the same cause he cannot have a writ of right nor a writ of right in his nature as a writ of right for disclaimer of customes and services ne injustè vexes rationalibus divisis quo jure c. But here it appeareth by Littleton that such bodies politick or corporate as have a sole seisin and may have a writ of right for that the fee and right is in them albeit they cannot absolutely convey away their Lands c. without assent of others may make a discontinuance as a Bishop an Abbot a Dean a Master of an Hospital c. But this is to be understood where a Dean c. are solely seised of distinct possessions for if the body that is seised be aggregate of many as the Dean and Chapter Master and confrates c. then the Feoffment of the Dean or Master is so far from a discontinuance as it is a disseisin But at this day the Bishop Dean Master of an Hospital c. that have the fee and right in them cannot discontinue neither can they or any Parson Vicar Arch-Deacon Prebendary or any other having any Ecclesiastical living with assent of Dean and Chapter Patron and Ordinary or the consent of any others make any Lease gift granr or Conveyance Estate Charge or Incumbrance to binde his successors or others then for term of 21 years or three lives in possession whereupon the accustomed rent or more shall be reserved Vide S. 528. 593. c. 1 El. c. 18. 13 El. c. 10. 1 Ja. c. 3. l. 2. fol. 46. l. 4. fol. 76. 20 El. 5. fo 9. 14. l. 6. fo 37. l. 7. fo 8. l. 11. fo 67. 27 H. 8. 31 H. 8. 32 H. 8. 37 H. 8. 1 E. 6. c. These points concerning Hospitals were resolved by the Justices P. 24. Eliz. The Cheneys case l. 2. fo 48 49. Evesque de Cant. case First That no Hospital was given to the Crown by the Statute of 27 H. 8. nor any Hospital is within the Statute of 31 H. 8. of Monasteries but only Religious and Ecclesiastical Hospitals and that no Lay Hospital was within those Statutes 2. If upon the Foundation of any Hospital or after it was ordained That one or divers Priests should be maintained within the Hospital to celebrate Divine Service to the poor and to pray for the Soul of the Founder and all Christian Souls or the like and that the poor of such Hotals should make the like Orisons yet such an Hospitall is not within the said Statute for the Hospital is Lay and not Religious and all or the most part of ancient Lay Hospitals were founded or ordained after the like sort and the makers of those Statutes never intended to overthrow works of Charity but to take away the abuse 3. That no Hospital was given to the King by the Statute of 37 H. 8. but in two cases where the Donors Founders or Patrons c. had entred and expulsed the Priests Wardens c. between the 4. of Febr. 27 H. 8. and the 25. of Decemb. 37 H. 8. or where King H. 8. by Commission according to that Act should enter and seise the same but that determined by the death of that King l. 1. f. 24. Porters Case 4. That the Statute of 1 E. 6. extended not to any Hospital whatsoever either Lay or Religious as by the same appeareth l. 4. 111 113 114 116. in Lamberts case Nota of Hospitals some are Corporations aggregate of many as of Master or Warden c. and his Confratres some where the Master or Warden hath only the estate of Inheritance in him and the Brethren and Sisters power to consent having College and Common Seal some where the Master or Warden hath the estate in him but hath no College and Common Seal and such a Master or Warden shall have a Juris utrum and of these Hospitals some be Eligible some Donative and some Presentative 14 E. 3. Juris utrum 4. Sect. 646 647. Fol. 342. b. If Tenant pur terme dauter vie dyeth the Freehold is said to be in Abeyance until the occupant enter If a man make a lease for life the remainder to the right heirs of I. S. the fee simple is an Abeyance untill I.S. dyeth Vide Sect. 1. Virg. 4. Aen. Insequiturque solo caput inter â—ubile condit Also when a Parson dyeth we say That the Freehold of the Gleab c. is in consideratione sive intelligentia legâ— because a suceessor is in expectation to take it 24 E. 3. 63. So it is of a Bishop Abbot Dean Archdeacon Prebend Vicar and of every other sole Corporation or Body Politick Presentative Elective or Donative
in Abeyance there said to be in suspense 19 H. 6. 60. 29 Ass P. Com. 562. 563. Walsinghams Case Tenant for life the remainder in Tail the remainder to the right heirs of Tenant for life Tenant for life grant to 〈◊〉 Stat. suum to a man and his heirs both estates do passe 44 Ass 28. 44 E. 3. 10. Jâ—â— sive rectum signifieth properly and specially in Writs and pleadings when an estate is turned to a right as by discent disseisin c. where it shall be said Quid jus descendit non terra 20 H. 6. 9. But right doth also include the estate in esse in Conveyances and therefore if Tenant in fee simple make a lease for years and release all his right in the land to the lessee and his heirs the whole estate in fee simple passeth Vide Sect. 465. Pl. Com. 484. lib. 8. fol. 153. Althams Case 39. H. 6. 38. And so commonly in Fines the right of the land includeth and passeth the state of the land as A. cognovit teneâ—enta praedicta esse jus ipsius B. c. and the Statute saith Jus suum defendere which is statum suum W. 2. cap. 3. Pl. Com. 484. 487. b. And note That there is jus recuperandi jus inenandi jus habendi jus retinendi jus percipiendi jus possidendi fo 345. b. Title properly is when a man hath a lawful cause of entry into lands whereof another is seised for the which he can have no action as Title of Condition Title of Mortmain c. Vide S. 429 659 c Every right is a Title but every Title is not such a right for which an action lyeth and therefore Titulus est justa causa possidendi quod nostrum est As by a release of a right a Title is released so by release of a Title a right is released also Interest ex vi termini extendeth to Estates Rights and Titles that a man hath of in to or out of Lands and by the grant of totum interesse suum in such lands as well reversions as possessions in fee simple shall passe Pl. Com. 374. Seignior Zouches Case 487 488. Nichol. Nichols Case 23 H. 8. Tail Br. 32. 16 El. Dyer 325. b. If Tenant for life be the remainder in Tail and he in the remainder in Tail release to the Tenant for life all his right and state in the land Hereby it is said in in our Books That the estate of the lessee is not enlarged but the release serveth to this purpose to put the state Tail into Abeyance so as after that he in the remainder cannot have an action of Waste 43 Ass p. 13. 41 E. 3. Waste 83. 11 H. 4. 67. 14 H. 7. 10. Pl. com 482. per Dyer 27 H. 8. 20. Yet in that case saving reformation the lessee for life hath an estate for the life of Tenat in in Tail expectant upon his own life 42 E. 3. 23. But if Tenant in fee release to his Tenant for life all his right yet he shall have an action of Waste and if Tenant in Tail make a lease for his own life he shall have an action of Waste F N B 60. H 42 E. 3. 18. 41 E. 3. Waste 83. Sect. 658. Fol. 347. b. Here Littleton doth adde a Limitation to that which in this Chapter he had generally said viz. That an estate Tail cannot be discontinued but where he that maketh the discontinuance was once seised by force of the Tail which is to be understood when he is seised of the Freehold and Inheritance of the estate in Tail and not where he is seised of a remainder or a reversion expectant upon a Feeehold which Freehold is ever much respected in Law Vide 637 592 596 597 601 640 641. CHAP. XII Of Remitter Sect. 659. Fo. 348. a. LOu home ad 2 Titles a terres ou tenements Et adonques est adjudge eins per force de son eigne title ceo est a luy die un Remitter pur ceo que ley luy mitter destr eins en la terre c. per le pluis eigne sure title Quod prius est verius est quod prius est tempore potius est jure A Remitter is an operation in Law upon the meeting of an ancient right remediable and a latter state in one person where there is no folly in him whereby the ancient right is restored and set up again and the new defeasible estate ceased and vanished away 25 Ass p. 4. 11 H. 4. 50. a. Here in this case Titles includeth Rights for being properly taken as in case of a Condition Mortmain Assent to a Ravisher c. there is no Remitter wrought unto them because these are but bare Titles of Entry for the which no action is given but a Remitter must be to a precedent right And Littleton in this Chapter putteth all his cases only of Remitters to rights remediable 429. 650. Sect. c. 34 H. 8 Remit Br. 50. 44 E. 3. Attaint 22. 38 Ass p. 7. Note two things 1. That this Remitter is wrought in this case by operation of Law upon the Freehold in Law descended without any entry 2. That the Law so favoureth a Remitter that if the discontinuee be an Infant or feme Covert and Tenant in Tail after a discontinuance djsseise them and dye seised the issue shall be remitted without any respect of the privilege of Infancy or Coverture 11 E. 4. 1. In this case and many other the Law that abhorreth Suits of vexation doth avoid circuity of action for the Rule is Circuitas est evitandus 11 E. 3. 3. Ass 85. 4 E. g. 35. 14 H. 6. 27. 10 H. 7. 11. F N B Mesne and Waste Sect. 660. Fo. 348. b. Since Littleton wrote and after the Statute of 2â— H. 8. c. 10. If Tenant in Tail make a Feoffment in fee to the use of his issue being within age and his heirs and dieth and the right of the estate Tail descend to the issue being within age yet he is not remitted because the Statâ— executeth the possession in such plight manner and form as the use was limited sic de similibus 35 H. 8. Dyer 54. b. 6 E. 6. ib. 77. 1 2 P.M. 116. 1 2 P. M. 129. 191. 28 H. 8. 23. b. Pl. Com. Amy Townsends Case 34 H. 8. Remit Br. 49. But if the issue in Tail in that case wave the possession and bring a Formedon in the Discend and recover against the feoffees he shall thereby be remitted to the estate Tail otherwise the lands may be so incumbred as the issue in Tail should be at a great inconvenience but if no Formedon be btought if that issue dyeth his issue shall be remitted because a state in fee simple at the Common Law descendeth unto him Pl. Com. supra Nota in this case that the State of the land out of which the rent issued being defeated the rent is defeated also Fo. 349. a. But
43. 43 E. 3. 5. Sect. 671. Note a diversity between a Remitter and a Discent For if a woman be disseised and being of full age taketh husband and then the disseisor dyeth seised this discent shall binde the wife albeit she was covert when the discent was cast because she was of full age when she took husband But albeit the wife that hath an ancient Right and being of full age taketh a husband and the Discontinue letteth the land to the husband and wife for their lives this is a Remitter to the wife for Remitters to ancient Rights are favoured in Law Sect. 672. Fo. 354. a Here it appeareth That the husband against his own alienation if he had taken the estate to him alone could not have been remitted But when the estate is made to the husband and wife albeit they be but one person in Law and no moities between them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that Remitters are favored c. therefore in this case in Judgement of Law both husband and wife are remitted which is worthy of great Observation Sect. 673. Fol. 354. b. Littleton having spoken of Remitters to the issue in Tail who is privy in blood and to the wife who is privy in person now he speaketh of Remitters to them in reversion or remainder expectant upon an estate Tail who are privy in estate and this case proveth That the wife is remitted presently for the equity of the Law requireth that as the discontinuance continuance of the estate in Tail is a discontinuance of the reversion or remainder so that the Remitter to the estate Tail should be a Remitter in the reversion or remainder 42 E. 3. 17 41 Ass 1. 36 Ass p. 4. Tenant for life the remainder to A. in Tail the remainder to B. in fee Tenant for life is disseised a collateral Ancestor of A. releaseth with Warranty and dieth whereby the estate Tail is barred the Tenant for life re-enters the disseisor hath an estate in fee simple determinable upon the estate Tail and the remainder of B. is revested in him And so note in this case the estate for life and the remainder in fee are revested and remitted and an estate of inheritance left in the disseisor 44 Ass p. 15. 44. E. 3. 30. If a Fine be levied sur grant rend to one for life or in taile the remainder in Fee if Tenant for life or in taile execute the estate for life or in taile this is an execution of the Remainder 20. E. 3. Aid 29. A gift in tail is made to B. the remainder to C. in Fee B. discontinueth and taketh back an estate in tail the remainder in Fee to the King by Deed inrolled Tenant in taile dyeth his issue is remitted and consequently the remainder as Littleton here saith and the diversity is between an Act in Law for that may devest an estate out of the King and a tortious Act or entry or a false and a fained recovery against Tenant for life or in taile which shall never devest any Estate remainder or reversion out of the King Pl. Com. 489. Nichols case and 553. Walsinghams case 17. El. Dy. 344. 25. E. 3. 48. Resceit 18. 49 E. 3. 16. Surre Staffords case l. 8. fo 76 b. But a Recovery by good Title against Tenant for life or in taile where the remainder is to the King by defeasable Title shall devest the remainder out of the King and restore and remit the right owners Cholmleyes case l. 2. 53. 7 R. 2. Aid le roy 61. 22. E. 3. 7. Sect. 674. 675 Fo. 355. Quod ei deforceat is a writ that is given by the statute of W. 2. ca. 4. to any Tenant for life or in Taile upon a Recovery by default against them in a Precipe and lyeth against the Recoveror and his heirs in which case the particular Tenant was without remedy at the common Law because he could not have a writ of right There hath been a question in our Books upon these words by default c. And some do hold contrary to three Objections made c. and as to the first they say That albeit that in the writ of waste judgement is not only given upon the default yet the default is the principal and the cause of awarding of the writ to enquire of the waste is an incident thereunto and the Law alwayes hath respect to the first and principal cause and therefore upon such a Recovery a writ of deceit lieth and that writ lyeth not but where the recovery is by default 17 E 3. 58. 29 E 3. 42. F. N. B. 98. b. 12 H. 4. 4. 19 E. 2 disceit 56. w. 2 ca. 3. 3 H. 4. 1. So in an acton of waste against the Husband and wife upon the default of the Husband the wife shall be teceived and yet the Statute there speaketh also per defaultam So upon such a recovery in waste against the Baron and feme by default the wife shall have a cui in vita by the Statute and it speaketh where the recovery is per defaul 9 E. 4. 16. and albeit the defendent may give in evidence if he knoweth it yet when he makes default the Law presumeth he knoweth not of it and it may be that he in truth knew not of it and therefore it is reason that seeing the statute that is a beneficial Statute hath given it him that he be admitted to his quod ei deforceat in which writ the truth and right shall be tried and so it is of a Recovery by default in an Ass albeit the Recognitor of the Ass give a verdict a Quod ei deforceat lyeth and all this was resolved by the whole Court of Common Pleas and so the doubt in 41 E 3. 8. well resolved 2 H. 4. 2. 21 H. 6. 56. 44 E. 3. 42. Br. quod ei deforceat 4 P. 33 Eliz Rot. 1125. inter Ed Elmer and William Thacker in quod ei deforceat Nota If Tenant for life make default after defaltation and he in Reversion is received and pleading to issue and it found by verdict for the demandant the default and the verdict are causes of the judgement and yet the Tenant shall have a quod ei deforceat As to the 2. Ob. That the defendant may have an attaint 1. It was utterly denyed that an Attaint did lie in this case for though it be taken by the oath of 12 men yet it is but an Enquest of Office where upon no Attaint did lye on either party us upon an enquiry of Collusion although it be by one Jury nor upon a verdict in a quale jus 2. Admitting that an Attaint did lye in that case yet it followeth ex conseq that a quod ei deforceat did not lye 33 E 3. quod ei deforceat pl. ult F.N.B. 156. Fleta l 5 ca. 11. 48. E. 3. 19. 40. Ass 23. 33 H. 6. 25. 39 H.
5 E. 3. enter cong 42. 15 E. 3. Age 95. 41 E. 3. 18. pe Finchden 22 E. 3. 2 b lib. 1. 15. Sir William Pelhams case Since our Author wrote the statute of 14. El. cap. 8. hath been made concerning this matter Vide l. 3. 60. Lib. 1. fo 15. And Nota That although the discontinuâ—â— groweth by matter of Record yet the Remitter may be brought by matter in paiis Sect. 676. Autor al. Contr. 44 E. 3. 17. 44 Ass 2. 43 Ass 3. Vide Sest 6â—6 Sect. 677. Fo 356. b. In this case the estate is in the feme covert presently by the livery before any agreement by the husband 15. 4. 1. b. 7 H. 6. 17. 1 H. 7. 12. b. 39 E. 3. 30. 57 H. 8. 24. If the wife survive her husband she cannot claim in by the purchase made during the coverture but the law adjudgeth her in her better right 41 E. 3. 18. But if both estates be waivable there albeit the wife prima facie is remitted yet after the decease of her husband she may elect which of the Estates she will As if lands be given to the husband and wife and their heirs the husband make a feoffment in Fee * the Feoffee giveth the husband and wife and the heirs of their two bodies the husband dieth 18 El. Dy. 351. * the Feoffee giveth land to the husband and wife c. If Lands be given to a man and the heirs females of his body and he maketh a feoffment in fee and take back an estate to him and his heirs and dyeth having issue a daughter leaving his wife grossement enseint with a Son and dieth the daughter is remitted and albeit the son be afterward borne he shall not devest the Remitter Sect. 678. Fol. 357. Covin and consent in many cases to do a wrong do choak a meer right and the ill manner doth make a good matter unlawfull 18 E. 4. 2. b. Covina is a secret assent determined in the hearts of two or more to the defrauding and prejudice of another Pl. Com. 546. Wimb If a Disseisor Intrudor or Abator do endow a woman that hath lawful Title of Dower this is good and shall binde him that right hath if there were no covin or consent before the disseisin c. 44 E. 3. 46. 11 H. 4. 60. 44 Aff. 29. 19 H. 8. 12. 18 H. 8. 5. 11 E. 4. 2. 7 H. 7. 11. In all cases where a man hath a rightfull and just cause of action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the covin doth suffocate the right so as the recovery though it be upon a good Title shall not binde or restore the Demandant to his right 41 Ass p. 28. 25 Ass p. 1. 27 Ass 74. 15 E. 4. 4. a. 12. Ass p. 10. If Tenant in Tail and his issue disseise the discontinuee to the use of the Father and the Father dieth and the land descend to the issue he is not remitted against the discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraign the first Warranty 11 E. 4. 2. 15 E. 4. 23. 14 H. 8. 12. 33 H. 6. 5. 12 E. 4. 21. b. A. and B. joyntenants be intituled to a real action against the heir of the disseisor A. cause the heir to be disseised against whom A. and B. recover and sue execution B is remitted for that he was not party to the covin and shall hold in common with A. but A. is not remitted fo 357. b. Nota it is regularly true That a feme covert cannot be a disseisoress by her commandment or procurement precedent nor by her assent or agreement subsequent but by her actual entry or proper act she may be a disseisoress And therefore some do hold that Littleton must be intended that the husband and wife were present when the disseisin was done and others do hold that Littleton is good Law albeit she were absent for if that her procurement or agreement be to do a wrong to cause a Remitter unto her in this special case she shall fail of her end and remitted she shall not be but in this special case she shall be holden as a disseisoress by her covin and consent quatenus to hinder a Remitter F.N.B. 179. g. 12. E. 4. 9. 35 Ass 5. 44. E. 3. 9. 23. 13 Ass 1. Temps E. 1. Waste 128. 16. Ass p. 7. 21. E. 4. 53. 21. H 7. 35. 3. H. 4. 17. Sect. 679. Vide Pl. Com. Amy Townsends Case 12. R. 2. Remit 12. Sect. 680 681. fol. 358. Here note five things 1. That a remainder expectant upon an estate for life worketh no Remitter but when it falls in possession for before his time he can have no action and no Freehold in him 18. H. 8. 3. 2. Though the woman might wave the remainder yet because she is presently by the death of the husband Tenant to the praecipe it is within the rule of Remitter and her power of waiver is not material 3. That a Freehold in Law being cast upon the woman by act of Law without any thing done or assented to by her doth Remitter her albeit she be then sole and of full age vide S. 447. 4. That a Praecipe lieth against one that hath but a Freehold in Law 5. That a woman shall be endowed where the husband hath the inheritance and but a Freehold in Law Brit. 83. b. Sect. 682 683 684 685. Fo. 359. Vide 12. E. 4. Compare these four Sections well together A man absent can neither take Livery nor make Livery without Deed Temps H. 8. Feoffments Br. 72. 40 E. 3. 41 .10 E. 4. 1. a. 15 E. 4. 18. 18 E. 4. 12. 22 H. 6. 12. Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur Et le fits nient conusant de ceo ne agrea a le feoffment c. Here it appeareth That if the Son be Conusant and agreeth to the Feoffment c. This is no remitter to him Vide Sect. 682. If A. be seised in Tail and have issue two Sons and by Deed indented between him of the one part and the Sons of the other part maketh a lease to the eldest for life the remainder to the second in fee and dieth and the eldest Son dieth without issue the second Son is not remitted because he agreed to the remainder in the life of the Father or if the like estate had been made by paroll if in the life of the Father the Tenant for life had been impleaded and made default and he in the remainder had been received and thereby agreed to the remainder after the death of the Father and the eldest Son without issue the second Son should not be remitted because he agreed to the remainder in the life of the Father Sect. 685. Fol. 360. a. Acts of Parliament are to be so construed
as no man that is innocent or free from injury or wrong be by a literall construction punished or endammaged and therefore in this case albeit the Letter of the Statute is generally to give damage against him that is found Tenant and the case that Littleton here putteth D. being survivor is consequently found Tenant of the Land yet because he waived the estate and never agreed to the Feoffment nor took any profits he shall not be charged with the damages Sect. 686 687. fol. 360. b. Feint ou fained action est tiel action que comit que les perols de le breve sont voyers encore per certaine causes home nad cause ne title per la ley de recover per mesne le action Et faux action est lou les perolls de breve Sont faux Sect. 687. postea vide As discents do remit the heire which comes in the Per so succession doth remit the successor albeit he cometh in the post and so in other cases where the issue in taile of full age shall be remitted there in the like case shall the successor be remitted also and all meane charges and incumbrances Vide Sect. 150. Stat. Merton Sect. 688. Fol. 361. a. Si home suist faux action c. recover envers le Tenant en Taile per defalt Littleton addeth by default because if the recovery passed upon an issue tried by verdict he shall never falsifie in the point tried because an attaint might have been had against the Jurors and albeit all the Jurors be dead so as the attaint doe faile yet the issue in Taile shall not falsifie in the point tried untill it be lawfully avoided pro veritate accipitur As if the Tenant in Taile be impleaded in a Formedon and he traverse the gift and it tried against him and thereupon the demandant recover In this case the issue in Taile shall not falsifie in the point tried but he may falsifie the recovery by any other matter as the Tenant in Taile might have pleaded a collaterall warranty or a release as Littleton here putteth the case or to confesse and avoid the point tried and Littletons case holdeth not only in a Recovery by default whereof he speaketh but also upon a nihil dicit or confession or demurre 12 E. 4. 19. 13 E. 4. 3. 11 H. 4. 89. 7 H 4. 17. 14 H. 7. 10 11. 28. Ass 32. 52. 34. Ass 7. 10 H. 6. 5. 19 H. 6. 39. Br. faux Recovery 55. Sect. 689. Fo. 361. b. Vide Sect. 686 687. Here note That a Remitter may be had after a recovery upon a feint action by a disseisin and a discent as well as by a discent after a discontinuance by a Feoffment c. Sect. 690. Fol. 362. a. Here it appeareth that if a Judgement be given against a Tenant in Tail upon a faint or false action and Tenant in Tail dye before execution no execution can be sued against the issue in Tail 10. H. 6. 6. 12. E. 4. 20. 23. El. Dy. 276. l. 1. f. 106. Shelleys case Pl. Com. 55. vide les Autor supra cited c. But if in a common recovery Judgement be had against Tenant in Tail where he vouched and hath Judgement to recover over in value albeit Tenant in Taile dye before execution yet the recoveror shall execute the Judgement against the issue in Tail in respect of the intended recompence and for that it is the common assurance of the realm and is well warranted by our Books and was not invented by Justice Cook in the time of E. 4 as some hold by tradition but it may be that it was upon former authors and opinions of Judges discovered by him assented unto by the rest of the Judges Vide S. 709. 15. E. 3. Bre. 324 1. E. 4. 5. 5. E. 4. 2. 12. E. 4. 20. 23. El. Dy 376. l. 10. 37. 38. Mary Portingtons case If a recovery be had against Tenant for life without consent or covine though it be without Title and execution be had and Tenant for life dyeth the reversion or remainder is discontinued c. but if such a Recovery be had by covin between the Demandant and Tenant for life then he in the reversion or remainder may enter for forfeiture So it is if Tenant for life suffer a common Recovery at this day it is a forfeiture of his estate 5. Ass 3. 5. E. 3. enter cong 42. lib. 1. 15. 16. Sir William Pelhams case Since Littleton wrote there were two Statutes made for preservation of Remainders and Reversions expectant upon any estate for life the one in 32 H. 8. the other in 14. El. But 32 H 8. extendeth not to Recoveries when Tenant for life came in as vouchee c. and that Act is repealed by 14 El. and full remedy provided for preservation of the entry of them in reversion or remainder But the Statute of 14 El. extendâ—â—â— not to any recovery unlesse it be by agreement or Covin 32 H 8. ca. 31. 14 El. ca. 8. 2. If there be Tenant for life remainder in Taile the reversion or remainder in fee if tenant for life be impleaded by agreement and he vouching Tenant in Taile and he vouch over the common vouchee this shall barre the reversion or remainder in fee although he in reversion or remainder did never assent to the recovery because it was not the intent of the Act to extend to such a recovery in which a Tenant in Taile was vouched for he hath power by common Recovery if he were in possession to cut off all Reversion and Remainders L 3. fo 60 61. Lincolne Coll. Case So if Tenant for life had surrendred to him in Remainder in Taile he might have barred the remainders and reversions expectant upon his Estate 3. Where the proviso of the Act speaketh of an assent of Record by him in reversion or remainder it is to be understood that such assent must appear upon the same Recovery either upon a voucher Aid prier Receit or the like for it cannot appear of Record unlesse it be done in course of Law and not by any extraiudiciall entry or by Memorandum Sect. 691. Fol. 362. a. Here it appeareth That upon the plea of non tenure or of a disclaimer of the Tenant in a Formedon in the descending albeit the expresse judgement be that the Tenant shall goe without day yet in the judgement of Law the demandant may enter according to the title of his Writ and be seised in Tail notwithstanding the discontinuance 5. E. 4. 1. 36 H. 6. 29. 6 E. 3. 8. 4 E. 4 38. Bract. l. 5. f. 431. c. Brit. ca. 84. And in this case the demandant hath not two rights but hath onely one ancient right and is restored to the same by course of Law and so Remitter here in a large sence is taken for a recontinuation of the right Here note that in such a praecipe where the demandant is to recover damages if the Tenant plead
shall recover by a Writ of Cosinage Aiel and Besail and lastly that the heire of the wife after the death of the Father and Mother shall not be barred of his action to demand the heritage of his Mother by Writ of Entry which his Father aliened in the time of his Mother whereof no Fine was levied in the Kings Court Fo. 365. b. Concerning the 1. There be two points in Law to be observed 1 Albeit the Statute in this Article name a Writ of Mordanc and after writs of Cosinage c. yet a writ of Right a Formedon a writ of Entry ad Com. legem and all other like actions are within the purview of this Statute * 2 Where it is said in the said Act if the Tenant by the Curtesie alien yet his release with warranty to a disseisor c. is within the purview of the Statute for that it is in equall mischief 11 E. 2. gar 83. 4 E. 3. gar 63. Pl. Cam. 110. * 27 E. 3. 80. 14 E. 4. gar 5. and 4. M. Dy. 148. a. If Tenant by the Curtesie be of a Seigniory and the Tenancy escheat unto him and after he alien with warranty this shall not binde the issue unlesse assets descend for it is in equal mischief 22. Ass 9. 37. temps i.e. gar 86. Note a diversity between a warranty on the part of the Mother and an estoppel for an estoppel c. shall not binde the heir when he claimeth from the Father As if Lands be given to the husband and wife and to the heires of the husband the husband make a gift in Tail and dieth the wife recover in a Cui in vita against the donee supposing that she had fee simple and make a feoffment and dieth the donee dyeth without issue the issue of the husband and wife bring a Formedon in the Reverter against the Feoffee and notwithstanding he was heir to the Estoppel and the Mother was Estopped yet for that he claimed the Land as heir to his father he was not Estopped 18 E 3. 9. If a feme heire of a disseisor infeoffe me with warranty and marrieth with the disseisee if after the disseisee bring a Praecipe against me I shall rebut him in respect of the warranty of his wife and yet he demandeth the Land in another right and so if the husband and wife demand the right of the wife a warranty of the Collateral Ancestor of the husband shall barre 21. R. 2. judgement 263. By the Statute of 11 〈◊〉 7. c. 20. where the woman hath any estate for life of the inheritance or purchase of her husband or given to her by any of the Ancestors of the husband or by any other person seised to the use of her husband or of any of his Ancestors there her alienation release or confirmation with warranty shall not binde the heir l. 1. f. 176. l. 3. 50 51. 59. 60. 61. 62. Dy. 146. 362 D. St. 55 Pl. Com. 56. I will only adde two cases the one was A man seised of Lands in fee levyed a fine to the use of himself for life and after to the use of his wife and of the heirs males of her body by him begotten for her joynture and had issue male and after he and his wife levied a fine and suffered a Common recovery the husband and wife die and the issue male enter by force of the said Statute of 11 H. 7. and it was holden by the justices of Ass that the entry c. was lawful and yet this case is out of the letter of the Statute for she neither levied the Fine c. Being sole or with any other after taken husband but is by her self with her husband that made the joynture Sed qui haeret in littera haeret in Cortice this case being in the same mischief is therefore within the remedy of the Statute by the intendment of the makers of the same to avoid the disherison of heirs who were provided by the said joynture and especially by the husband himself that made the joynture M. 13. Jac. inter Harley and West in eject fir in Com. B. Linc. The other was A man is seised of Lands in the right of his wife and they two levy a Fine and the Conusee grant and render the Land to the husband and wife in especial taile the remainder to the right heirs of the wife they have issue the husband dyeth the wife taketh another husband and they two levy a Fine in Fee and the issue enter this is directly within the Letter of the Statute and yet is out of the meaning because the State of the Land moved from the wife so as it was the purchase of the Husband in Letter and not in meaning P. 17. El. in Com. B Lattons Case But where the woman is Tenant for life by the gift or conveyance of any other her alienation with warranty shall binde the heir at this day So if a man be Tenant for life otherwise than as Tenant per Curtesie and alien in fee with warranty and dyeth this shall at this day binde the heir that hath the reversion or remainder by the Common Law not holpen by any Statute But all this is to be understood unlesse the heir that hath the reversion or remainder doth avoid the estate so aliened in the life of the Ancestor for then the estate being avoided the warranty being annexed unto the estate is avoided also Sect. 725. As to the second clause of the Statute of Glocestor there are two points of Law to be observed 1. That by the expresse purview of the Statute if Assets do after descend from the Father then the Tenant shall have recovery or restitution of the lands of the Mother But in a Formedon if at the time of the warranty pleaded no Assets be descended whereby the Demandant recovereth if after the Assets descend there the Tenant shall have a Sc. fac for the Assets and not for the land intailed because that if in this case the Tenant should be restored to the land intailed then if the issue in Tail alienated the Assets his issue should recover in a Formedon Pl. Com. 110. a. l. 8. f. 53. Sims Case 2. Note That after Assets descended the recovery shall be by writ of Judgement viz. by Sc. fac which shall issue out of the Roll of the Justices c. to resummon him that ought to warrant c. Also if the Tenant will have benefit of the Statute he must plead the Warranty and acknowledge the Title of the Demandant and pray that the advantage of the Statute may be saved unto him and then if after Assets descend the Tenant upon this Record shall have a sc fac and if Assets descend but for part he shall have a scire fac for so much l. 8. fo 134. Mary Shipleys Case But if the Tenant plead the Warranty and Assets descended c. and the Demandant taketh issue that Assets not c.
performing of the condition c. and yet the lessor himself was never bound to the warranty but it hath relation from the first livery and by this it appeareth that a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may work in the beginning But otherwise it is if a man grant a Seigniory for yeares upon condition to have fee with warranty in forma praedicta c. And so it is if a man make a Lease for yeares the remainder in fee and warrant the Land in forma predicta he in the remainder cannot take benefit of the Warranty because he is not party to the Deed and immediately he cannot take she were party to the Deed because he is named after the â—abendum and the estate for yeares is not capable of a warranty And so it is if Land be given to A. and B. so long as they â—oyntly together live the remainder to the right heires of â—â—m that dieth first and warrant the land in forma predicta A. dyeth his heir shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heir of A. have the Land by discent Sest 722. Fol. 378. b. Si le 1. fits alienast c. By the Alienation of the Donee two things are wrought 1. The Franktenement and Fee is in the Alienee 2. The reversion is devested out of the donor and therefore by the alienation that transferreth the freehold and fee simple to the Alienee there can no remainder be raised and vested in the second sonne 27 H. 8. 24. 6. R. 2. quod jur clam 23. Also an estate of an inheritance in Lands and Tenements cannot cease or be void before the state be defeated by entry then if this remainder should be good then must it give an entry upon the Alienee to him that had no right before which should be against the expresse rule of Law viz. That an estate cannot be given to a stranger to avoid a voidable Act. One Alienation cannot vest an estate of one and the same Land to two severall persons at one time If a man seised of an Advowson in fee by his deed grant the next presentation to A. and before the Church become void by another Deed grant the next presentation of the same Church to B. the second grant is void for A. had the same granted to him before and the grantee shall not have the second avoidance by construction to have the next avoidance which the grantor might lawfully grant for the grant of the next avoidance doth not import the second presentation But if a man seised of an Advowson in fee take wife now by Act in Law is the wife intitled to the third presentation if the husband dye before The husband grants the third presentation to another the husband dye the heire shall present twice the wife shall have the third presentation and the grantee the fourth for in this case it shall be taken the third Presentation which he might lawfully grant and so note a diversity between a Title by act in Law and by act of the party for the act in Law shall work no prejudice to the grantee Periculosum est res novas inusit at as inducere Eventus varios res nova semper habet vide §. 87 c. Sect. 723. fol. 379. a. Here by the Opinion of Littleton the Donor may re-enter for the condition broken for Vtile per inutile non vitiatur which being in case of a condition for the defeating of an estate is worthy of Observation And it is to be noted That after the death of the Donor the condition descendeth to the eldest Sonne and consequently his alienation doth extinguish the same for ever wherein the weaknesse of this invention appeareth and therefore Littleton here saith That it seemeth that the Donor may re-enter and speaketh nothing of his heirs A man hath issue two Sons and maketh a gift in Tail to the eldest the remainder in fee to the puisne upon condition that the eldest shall not make any discontinuance with warranty to barre him in the remainder and if he doth that then the puisne Son and his heirs shall re-enter the eldest maketh a feoffment in fee with warranty the Father dyeth the eldest Son dyeth without issue the puisne may enter But if the discontinuance had been after the death of the Father the puisne could not have entred In this case four points are to be observed 1. As Littleton here saith the entry for the breach of the Condition is given to the Father and not to the puisne Sonne 2. That by the death of the Father the condition descends to the elder Sonne and is but suspended and is revived by the death of the eldest Son without issue and descendeth to the yongest Son 41 E. 3. vide Sect. 446. 3. That the feoffment made in the life of the Father cannot give away a condition that is collaterall as it may doe a right 4. That a Warranty cannot binde a Title of entry for a condition broken but if the discontinuance had been made after the death of the Father it had extinguisht the condition which case is put to open the reason of our Authors opinion The ancient Judges and Sages of the Law have ever as it appeareth in our Books suppressed innovations and novelties in the beginning as soon as they have offered to creep up lest the quiet of the Common-wealth might be disturbed 31 Ed. 3. Gager delivery 5. 22 Ass 12. 38 Ed. 3. 1. 2 H. 4. 18 c. And so have Acts of Parliament done the like 1 Ed. 3. cap. 15. Stat. 3. 18 Ed. 3. cap. 1. 6. 4 Hen 4. cap. 2. 11 Hen. 6. cap. 23. 12 Ed. 4. cap. 8 c. Sect. 726. fol. 380. a. Here note this diversity If the heir be within age at the time of the discent of the Warranty he may enter and avoid the estate either within age or at any time after his full age 18 Ed. 4. 13. 35 Hen. 6. 63. 28 Ass 28. 32 Ed. 3. garr 30. and Littleton saith well That the Infant in this case may enter upon the Alienee for if he bring his action against him he shall be barred by this Warranty so long as the state whereunto the Warranty is annexed continues and be not defeated by entry of the heir but if he be within age at the time of the alienation with Warranty and become of full age before the discent of the Warranty the Warranty shall barre him for ever Our Author putteth his cases where the entry of the Infant is lawfull for where it is not lawfull when the Warranty descendeth the Warranty doth binde the Infant as well as a man of full age and the reason is because the state whereunto the Warranty was annexed continueth and cannot be avoided but by action in which action
Roy de rend al Roy annualment un arke ou un Espee c. petit choses touchant le guerre Et tiel service ne forsque Socage en effect If one holdeth Land of a common person in gross as of his person and not of any Manor c. and this Seigniory escheateth to the King yea though it be by Attainder of Treason he holdeth of the person of the King and not in Capite because the original Tenure was not created by the King And therefore it is directly said That a Tenure of the King in Capite is when the Land is not holden of the King as of any Manor Castle Honor c. but of his Crown Nota. A man may hold of the King in Capite or of his Crown as well in Socage as by Knights service fol. 191. 4. CHAP. X. Tenure en Burgage Sect. 162. ESt lou les tenants deins le Burgh sont tenus del seignieur del Burgh per cert ' rent c. tiel tenure ne forsque tenure en Socage Burgh is an ancient Town holden of the King or any other Lord which sendeth Burgesses to the Parliament fo 109. a. l. 10. 123. Major de Lynns C. A City is a Borough incorporate which hath or within time of memory have had a Bishop and though the Bishoprick be dissolved yet the City remaineth as Westminster Cambridge an ancient City Mich. 7. R. 1. Rot. 1. vide libr. fo 109. b. Cities were instituted for three purposes 1. For conservation of Laws whereby every man enjoyeth his own in peace 2. For tuition and defence of the Kings Subjects and for keeping the Kings peace in time of sudden uproar And 3. For defence of the Realm against outward and inward hostility There is lex consuetudo Parliamenti quae quidem lex quaerenda est ab omnibus ignorata à multis cognita à paucis Of the Members of this Court of Parliament some be by descent as ancient Noblemen some by creation as Nobles newly created some by succession as Bishops some by election as Knights Citizens and Burgesses fol. 110. a. ante Sect. 3. The Jurisdiction of this Court is so transcendent that it maketh enlargeth diminisheth abrogateth repealeth and reviveth Laws Statutes Acts and Ordinances concerning matters Ecclesiastical Capital Criminal Common Civil Martial Maritine c. None can begin continue or dissolve the Parliament but by the Kings Authority Of this Court it is said Que il enim de tresgrand honor justice de que nul doit imaginer chose dishonorable Habet Rex Cur ' suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comitibus Baronibus Proceribus aliis viris peritis ubi terminatae sunt dubitationes judiciorum novis injuriis emersis nova constituuntur remedia unicuique justitia prout meruerit retribuetur Pl. c. 398. b. d. Pet. St. c. 55. fo 164. Flet. l. 2. c. 2. The King of England is armed with divers Counsels as first Commune Concilium and that is the Court of Parliament 2. Magnum Concilium and this is sometime applied to the Upper House of Parliament and sometime out of Parliament time to the Peers of the Realm 3. The Privy Councel And 4. the Kings Councel for Law matters and they are his Judges of the Law Sect. 165 c. Ascun Burghs ont tiel Custome que le puisne fits inherita c. Consuetudo quandoque pro lege servatur in partibus ubi fuerit more utentium approbata vicem legis obtinet longae vi enim temporis usus consuetudinis non vilis authoritas Longa possessio sicut jus parit jus possidendi tollit actionem vero domino Bracton Of every Custom there be two essential parts Time out of minde and Continuance and peaceable usage without lawfull interruption If Lands be within a Manor Fee or Seigniery the same by the Custom of the Manor c. May be devisable or of the nature of Gavelkinde or of Borough English 21. Ed. 4. 53. 54. otherwise is it In an upland Town c. Nota That in special Cases a Custome may be alleadged within a Hamlet a Town a Burgh a City a Manor an Honour an Hundred and a County but a Custom cannot be alleaged generally within the Realm c. For that is the Common Law Fo. 110. b. F.N.B. 122. Dyer 54. By some Customes the youngest brother shall inherit Sect. 166. and 167. Item en asc ' Burghs per le oustom feme avera pur sa Dower touts les tenement que feront a sa baron c. And this called Franke Banke Here is imployed by c. that in some places the Wife shall have the moity of her Husbands Lands so long as she lives unmarried as in Gavelkind And of Lands in Gavelkind a man shall be Tenant by the Curtesie without having of any issue In some places the Widdow shall have the whole or halfe Dum sola casta vixerit c. F.N.B. 150. Item home poit deviser ses terres qui il ad en Fee simple deins mesme le Burgh c. A devisor per son Testam is to speake by his Testament what his mind is to have done after his decease Testamentum est duplex 1. In Scriptis 2. Nuncupatinum seu fine scriptis The devisee cannot take goods c. without the assent of the Executors otherwise it is of Lands devised by Custome If a man hath Lands holden by Knights service in Capite and lands in Socage he can devise but two parts of the whole But if he hold lands by Knight-service of the King and not in Capite or of a meane Lord and hath also Lands in Socage he may devise two parts of his Land holden by Knights service and all his Socage Lands Vide lib. quaere Fo. 111. b. If a man make a Feoffment in Fee of his Lands holden by Knights service to the use of such person and persons and of such Estate and estates c. As he shall appoint by his Will in this case by operation of Law the use and State vests in the Feoffor and he is seised of a qualified Fee In this Case if the Feoffor limit Estates by his will by force and according to his power there the use and the Estates growing out of the Feoffment are good for the whole and the last will is but directory Vide Lib. c. If a gift in Taile or a Lease for life be made the remainder in Fee this remainder is not within the Statute Sect. 168. Fo. 112. By no conveyance at the Common Law a man could during the Coverture either in possession reversion or remainder limit an estate to his Wife But a man may by his Deed Covenant with others to stand seised to the use of his wife or make a Feoffment c. to the use of his Wife and now the state is executed to such uses by the Statute of 27 H. 8.
entry of him that Right hath may be taken away 3. The Remedies and in what Cases the same may be prevented or avoided 4. How a man may be barted of his Right for ever and in what Cases the same may be prevented or avoided vide lib. Nota fol. 163. 2 ouâ— 3 parceners sont forsque un heire a lour Auncest ' for albeit where there be two parceners they have moities in the lands descended to them yet are they both but one heire vid. S. 8. vers fin Nota diversitat ' between a Descent which is an act of the Law and a Purchase which is an act of the party For if a man hath two daughters c. and one of them is attaint of Felony the father dye hâ— the one moity shall descend to the one daughter and the other shall escheat But if a man make a lease for life the remainder to the right heirs of A. being dead who hath issue two daughters and one is attainted c. the remainder is void for the whole for that both the daughters should have been but one heir Fleta l. 5. c 9. l. 6 c. 47. fo 164. a. vide qu. Sunt autem plures participes quasi unum corpus in eo quod unum jus habent oportet quod corpus sit integrum quod in nulla parte sit defectum If lands be given to a man and to the heires females of his body and he hath issue a Son and a Daughter and dyeth the Daughter shall have the land by descent but if a remainder be limited to the heirs females of the body of I. S. c. the daughter shall never take it by Purchase for that shee is not heir female of the body of I. S. because he hath a Son And when the right heir doth claim by purchase he must be a compleat heir in judgement of Law And as they be but one heir and yet severall persons so have they one Free-hold in the land so long as it remains undivided in respect of any strangers Praecipe But between themselves to many purposes they have in Judgment of Law severall Free-holds for the one of them may infeoff another of her part and make livery 10 E 4. 17. E. 3. 46. fol. 164. a. vide qu. Note a diversity inter descensum in capita in stirpes If a man hath issue two daughters and dyeth this descent is in capita viz. that every shall inherit alike But if a man hath issue two daughters and the eldest daughter hath issue three daughters and the yongest one daughter all these four shall inherit but the daughter of the yongest shall have as much as the three daughters of the eldest ratione stirpium and not ratione capitum for every daughter hath a severall root c. Men descending of daughters may bee Coparceners as well as women and shall joyntly implead and be impleaded Item est alia actio mixta quae dicitur actio Familiae hirciscundae locum habet inter eos qui communem habent haeredit ' c. Et locum habet ut videtur inter cohaeredes ubi agitur de proparte sororum vel inter alios ubi res inter partes cohaeredes dividi debeat sicut sunt plures forores quae sunt quasi unus haeres vel inter plures fratres qui sunt quasi unus haeres ratione rei quae divisibilis est inter plures masculos c. Bract. l. 2. fol. 66. 71 c. l. 5. fol 443. b. vide qu. Sunt aliae res haereditariae quae veniunt in partitionem quae â—um dividi non possunt conceduntur uni ita quod aliae cohaeheredes alibi de communi haereditate habeant ad valorem sicut sunt vivaria Piscariae parci vel saltem quod partem habeant pro defectu sicut secundum piscem tertium vel quartum vel secundum actâ—m tertium vel quartum retis Item in parcis secundam tertiam aut quartam damam Bract. l. 2. 76. fo 165. a. Regnum non est divisibile Praterea sceptrum Ilione quod gesserat olim Maxima natarum Priami Virg. 1. Aeneid If there be two Coparceners of certain lands with Warrant and they make partition c. the Warranty shal remain because they are compellable to make partition Tho. de Eberston in Foresta de Pickering had kept time our of minde a Woodward for keeping of the Woods parcel of that Manor and had the bark of all the Trees felled c. as belonging to his Manor and this was adjudged a good prescription Itin. Pickr 8 E. 3. Rot. 34. Sect. 243 244 245. If Coparceners make partition at full age and unmarried and of sanae memoriae of lands in fee simple it is good and firm for ever albeit the the values be unequall but if it be of lands intailed c. it shall binde the parties themselves but not their issues unless it be equall Or if any be Covert it shall binde the husband but not the wife or her heires It shall not binde the Infant c. Modus conventio vincunt legem Pacto aliquid licitum est quod sine pacto non admittitur Quilibet potest renunciare juri pro se introduct ' Conventio autem privatorum non potest publico juri derogare Aeiâ—neâ—ia semper est perfren da propter privilegium aetatis sed esto quod filia primogenita relicto nepote vel nepte in vita patris vel matris decesserit praeferenda erit soror antenata tali nepoti vel nepti quantuÌ„ ad Ecisnetiam quia mortem parentum expectant If there be divers Coparceners of an Advowson and they cannot agree to present the Law doth give the first presentment to the eldest and this privilege shall descend to her issue nay her Assigns shall have it and so shall her husband that is tenant by the Courtesie c. But it is otherwise of a partition in Deed by the act of the party Sic vide diversit ' fol. 166. b. Cujus est divisio alterius est electio Dedi vobis possessionem quam dividetis sorte Numb c. 26. Sect. 247. If one Coparcener maketh a lease pur ans yet a Writ of Partition doth lie but otherwise is it if one or both make a lease for life because non in simul pro indiviso tenent and the writ of Partition must be against the Tenant of the Freehold 11 H. 4. 3. F.N.B. 62. g. And if one Coparcener disseise another a Writ of Partition doth not lie c. for that non pro indiviso tenent c. 4 H. 7. 9. 11 Ass 23. If two Coparcerners have two Manors by descent and they make partition that the one shall have one Manor for one year and the other the other Manor for this year and so alternis vicibus to them and their heirs this is a good partition Temps E. 1. partit 21. F.N.B. 62. 1. Of
man will take advantage of a Condition if he may enter he must enter and when he cannot enter he must make a claim because a Freehold and Inheritance shall not cease without entry or claim and also the Feoffor or Grantor may wave the condition Pl. 133. b. Browning If a man bargain and sell land by Deed indented and inrolled with a proviso That if the Bargainor pay c. that then the state shall cease and be void he payeth the money the state is not revested in the Bargainor before a re-entry And so it is if a bargain and sale be made of a reversion remainder advowson rent common c. l. 2. f. 50. Sir Hugh Cholmleys Case fo 218. vide nota But the said Rule hath divers Exceptions 1. In this present case of Littleton for that he can make no entry he shall not be driven to make any claim to the reversion for seeing by construction the Freehold and Inheritance passeth maintenant out of the lessor by the like construction the Freehold and Inheritance by the default of the lessee shall be revested in the lessor without entry or claim l. 1. f. 174. Digs Case 20 E. 4. 19. 20 H. 7. 4. b. 2. If I grant a rent charge in fee out of my land upon condition if the condition be broken the rent shall be extinct c. 3. If a man make a feoffment unto me in fee upon condition that I shall pay unto him 20 l. at such a day c. before the day I let unto him the land for years reserving a rent and after fail of payment the feoffee shall retain the land c. and the rent is extinct c. for that the feoffor could not enter c. for he himself was in possession and the condition being collateral is not suspended by the lease otherwise it is of rent reserved If a man make a lease for 40 years and the lessor grant the reversion to the lessee upon condition and after the condition is broken the term was absolutely surrendred And the diversity is when the lessor grants the reversion to the lessee upon condition and when the lessee grants or surrenders his estate to the lessor for a condition annexed to a surrender may revest the particular estate because the surrender is conditional But when the lessor grants the reversion to the lessee upon condition there the condition is annexed to the reversion and the surrender absolute 7 E. 4. 29. 14 E. 4. 6. 45 E. 3. 8 E. 2. Ass 395. A Guardian in Chivalry took a Feoffment of the Infant c. 50 E. 3. 27. Vide lib. fo 218. b. Ou le feffor poit loialment enter pur le condition enfreint c. la il nad franktenement devant son entry c. S. 351. Sect. 352. It is necessary when a day is limited to adde to the condition that the Feoffee or his heirs do perform the condition but when no time is limited then the Feoffee at his peril must perform the condition during his life although there be no request made or else the Feoffor or his heirs may re-enter And when the Feoffee is to give the land to the Feoffor and his wife in Tail before Michaelmas c. and if the Feoffee dye before the day the state of the heir of the Feoffee shall be absolute 15 H. 7. 13. 33 H. 6. 26 27. 9 Eliz. Dyer 262. Pl. 456. lib. 2. f. 79. Seignior Cromwels Case If a man make a Feoffment in see upon condition that the Feoffee shall make a gift in Tail to the Feoffor the remainder to a stranger in fee there the Feoffee hath time during his life because the Feoffor who is party and privy to the condition is to â—ake the first estate But if the condition were to make a gift in Tail to a stranger the remainder to the Feoffor in fee there the Feoffee ought to do it in convenient time for that the stranger is not privy to the condition and he ought to have the profits presently A condition that is to create an estate is to be performed by construction of Law as near the condition as may be and according to the intent of the condition albeit the letter c. cannot be performed But otherwise it is of a condition that destroyeth an estate for that is to be taken strictly unless it be in certain special Cases c. As if a man mortgage his land to W. upon condition that if the Mortgagor and I.S. pay 20 s. at such a day to the Mortgagee that then he shall re-enter the Mortgagor dyeth before the day I.S. pay the money to the Mortgagee this is a good performance of the condition But if a man make a lease to two for years with a proviso if the lessees dye during the term the lessor shall re-enter one lessee alien his part and dye the lessor cannot re-enter but the Assignee shall enjoy the term so long as the survivor liveth because the lease by the proviso is not to cease till both be dead 30 H. 8. Condition Br. 190. 33 H. 8. Joyntenants Br. 62. Note a diversity when the feoffee dyeth for then the condition is broken and when the feoffor dyeth for then the estate is to be made as near the intent of the condition as may be 2 H. 4. 5. fo 219. b. Note That after the decease of the husband the state is not to be made to the wife and the heirs of her body by her late husband ingendred and so to have an estate of Inheritance as she should have had by survivor if the estate had been made according to the condition but onely an estate for life without impeachment of Waste c. Sans impeachment per action de Waste extends but to the action c. Lib. 11. fo 83. l. 9. f. 9. l. 2. 23. Sect. 353 354. Note That the feoffee hath time during his life to make the estate unless he be reasonably required by them that are to take the estate This is to be intended of parties or privies and not of meer strangers for there the state must be made in convenient time fo 220. a. Si feoffment soit fait sur condition que le feoffee re-enfeoffor plusors homes a av tener a eux a lour heires c. touts ceux que devient av estate mor ' devant afc ' estate fait a eux donque doit le feoffee faire estate al heire celuy que survesquist de eux a aver tener a luy les heires celuy que survesquist 220. b. The reason wherefore the Habendum is thus limited c. is for that if it were made to the heirs of the heir then some by possibility should be inheritable to the land which should not have inherited if the estate had been made to the survivor and his heirs and consequently the condition broken Sect. 355 356. Of Disabilities some be by act of the party and some
by the Common Law are of two natures i.e. the one is founded upon skill and confidence as here the Office of Parkership the other without skill or confidence whereof some by the Common Law and some by the Statute By the Common Law as to every estate of Tenant by the Curtesie Tenant in Tail after possibility c. Tenant in Dower Tenant for life for years Tenant by Statute Merchant or Staple by Elegit Gardian c. there is a condition in Law secretly annexed to their estates that if they alien in fee c. that he in the reversion or remainder may enter c. or if they claim a greater estate in Court of Record c. Pl. Com. 373. a. Sir H. Nevils case 21 E. 4. 20. 93. l. 8. f. 44. Wittinghams case concerning condition in law founded upon Statutes for some of them an entry is given and for some other a recovery by action where an entry is given as upon an Alienation in Mortmain c. and the like where an action is given as for Waste against Tenant for life and years c. As for Example admit that an office of Parkership be granted or descend to an Infant or feme Covert if the conditions in law annexed to this office which require skill and confidence be not observed and fulfilled the office is lost for ever because it is as strong as an express condition But if a lease for life be made to a feme covert or an Infant and they by Charter of Feoffment alien in fee the breach of this condition in Law that is without skill c. is no absolute forfeiture of their estate So of a condition in Law given by Statute which giveth an entry onely As if an Infant or feme Covert with husband aliens by Charter of Feoffment in Mortmain this is no barre to the Infant or feme Covert But if a recovery be had against an Infant or feme Covert in an action of Waste there they are bound and barred for ever And note that a condition in Law by force of a Statute which giveth a recovery is in some case stronger then a condition in Law without a recovery for if lessee for life make a lease for years and after enter into the land and make Waste and the lessor recover in an action of Waste he shall avoid the lease made before the waste done because of necessity the action of Waste must be brought against the lessee for life which in that case must binde the lessee for years or else by the act of the lessee for life the lessor should be barred to recover locum vastatum which the Statute giveth But if the lessee for life make a lease for years and after enter upon him and make a Feoffment in fee this forfeiture shall not avoid the lease for years Reg. A man that taketh advantage of a condition in Law shall take the land with such charge as he findes it And a condition in Law is as strong as a condition in Deed as to avoid the estate or interest it self but not precedent charges to avoid but in some particular cases Vtique fortior potentior est dispositio legis quam hominis Vide S. 419 429 430. fo 234. a. For Offices in any wise touching the Administration or execution of Justice or Clerkship in any Court of Record or concerning the Kings Treasure Revenue Account Customs Alnage Auditorship Kings Surveyor or keeping of any of his Majesties Castles Forts c. Conditions in Law are annexed c. 3 H. 7. c. 11. 7 E. 6. c. 1. 5 E. 6. c. 16. And note that all Promises Bonds and Assurances for such Offices c. as well on the part of the bargain or as of the bargainee are void c. Nulla alia re magis Rom. Respub interiit quam quod Magistratus officia venalia erant M. 13 Ja. R. lib. 3. f. 83. Colshils case Aerod fo 343. Jugurtha going from Rome said to the City Vale venalis Civitas mox peritura si emptorem invenias Salust 12 R. 2. cap. 2. Sect. 379. The Oath of a Beadle or under-Bayliff of a Manor is That he shall duly and truly execute all such Attachments and other Proces as shall be directed to him from the Lord or Steward of his Court and that he shall present all Pound-breaches which shall happen within his Office and all Chattels waved and Estrayes Sect. 380. Si lease soit fait al Bar. feme a aver tenant a eux durant le coverture enter eux en ceÌ„ case ils ont estate pur terme de lour 2. vies sur condition en ley sc si un de eux devie ou que devorce soit fait enter eux donques bien lirroit a lessor aâ—ses heires dentr c. Durante dummodo dum quamdiu donec quousque usque ad Tam Diu ubicunque are words of limitation 37 H. 6. 27. 10 Ass 4. 11 Ass p. 8. 7 E. 4. 16. 9 E. 4. 25 26. 14 H. 8. 13. Divorces à vinculo Matrimonii are these causa praecontracti causa metus impotentiae seu frigiditatis Assinitatis consanguinitatis c. Divorce à mensa Thoro dissolveth not the marriage à vinculo Matrimonii for it is subsequent to the marriage as causa Adulterii 18 E. 4. 28. 24 H. 8. 8. Bastards 11 H. 4. 14. 76. Vide S. 399. 32 H. 8. c. 38. A man married the daughter of the sister of his first wife and it was declared by Act of Parliament to be good Tr. 2. Ja. Rot. 1032. Ri. Parsons case fo 235. b. Sect. 381. Logick teacheth a man not onely by just argument to conclude the matter in question but to discern between truth and falshood and to use a good method in his study and probably to speak to any legal question Arg. à divisione Pl. Com. 561. b. Vide S. 345. Sect. 383. Note a diversity viz. when a man deviseth that his executor shall sell the land there the lands descend in the mean time to the heir and until the sale be made the heir may enter to take the profits But when the land is devised to his Executors to be sold there the devise taketh away the discent and vesteth the state of the Land in the Executor and he may enter and take the profits and make sale according to the devise and the mean profits taken before the sale shall not be Assets so as he may be compellable to pay debts with the same and therefore he must sell the lands assoon as he can for otherwise he shall take advantage of his own Laches A man seised of certain lands holden in Socage had issue two daughters A. and B. and devised all his lands to A. and her heirs to pay unto B. a certain summe of money at a certaine day and place the money was not paid and it was adjudged that those words To pay c. did amount in a Will to a Condition because
the Patron must give his consent But if there be a Corporation aggregate of many as Dean and Chapter Mr. fellowes and Schollars of a Colledge Abbot or prior and Covent c. or any sole corporation that hath the absolute fee as a Bishop with consent of the Deane and Chapter they may by the Common Law make any grant of or out of their possessions without their founder or patron albeit the Abbot or prior c. were presentable and so it is of a Bishop because the whole estate and right of the Land was in them and they may respectively maintaine a writ of right 12 H. 4. 11. 19 E 3. 7. 7. Eliz. Dy. 238. 9. E. 4. 6. 2 H 4. 11. And note a diversity betweene a confirmation of an estate a confirmation of a deed for if the disseisor make a charter feoffment to A. with a Letter of Attorney and before livery the disseisee confirm the estate of A. or the Deed made to A. this is cleerly void though livery be made after But if a Bishop had made a Charter c. and the Deane and Chapter before livery confirm the Deed this is a good confirmation and livery made afterwards is good The like Law is of confirmation of a Deed of grant of a reversion before Attornement Grants made by Parsons Prebends Deane and Chapter c. are restrained by divers acts of Parliament 13. El ca. 10. 1. Eliz. ca. 18. 18. El. ca. 11. 1. Ja. ca. 3. Section 593 and 648. l. 2. fo 46. l. 4. 76. 120. l. 5. 9. 6. 14. li. 6. 17. li. 7. 8. lib. 11. 6. 7. defessus sum c. Sect. 529. and Sect. 531. Fol. 301. a b. Note a diversity where the determination of the rent is expressed in the Deed and when it is implyed in Law For when Tenant for life grant a rent in fee this by Law is determined by his death and yet a confirmation of the grant by him in reversion makes that grant good for ever without words of inlargement or clause of distreâ—â—e which would amount to a new grant and yet if the Tenant for life had granted a rent to another and his heires by expresse words during the life of the grantor and the lessor had confirmed that grant it should determine by the death of Tenant for life 26. Ass p. 38. 45. Ass p. 13. 14. Ass p. 14. Dedi or concessi may amount to a grant a feoffment a gift a Lease a release a confirmation a surrender c. and it is in the Election of the party to use which of these purposes he will Brit. li. 2. f. 59. b. Brook tit confir 20. 14 H. 7. 2 37. H. 6. 17. Dy. 8. Eliz. 4 H. 7. 10. 22 E. 4. 36. 40 E. 341. But a release confirmation or surrender c. cannot amount to a grant c. nor a surrender to a confirmation or to a release c. because these be proper and peculiar manner of conveyances c. Dimifi and this verbe volo will amount to a confirmation 7 E. 3. 9. In ancient statutes and in originall writs as in the writ of entry in casu proviso in consimili casu ad com legem c. this word dimifi is not applyed onely in a Lease for life but to a gift in taile and to a state in fee. 32 E. 3. breve 29. 1. Stat. Gloc. ca. 4. Benignae enim faciendae sunt intepraetationes cartarum propter simplicitatem laicorum ut res magis valcat quam pereat and he to whom such a Deed comprehending dedi c. is made may plead it as a grant as a release or as a confirmation at his Election 14 H. 4. 36. li. 5. fo 15. in Newcomens case If a disseisor make a Lease for life or a gift in taile the remainder to the disseisee in fee the disseisee by his Deed granteth over the remainder the particular tenant attorneth the disseisee shall not enter upon the Tenant for life or in taile for then he should avoid his grant demesne which amounted to a grant of the estate and a confirmation also Sect. 543. Fol. 302. b. If cesty que use and his feoffees after the Statute 1 R 3. and before the Statute 27 H. 18 ca. 10. had joyned in a fâ—offment it shall be the feoffment of the feoffees because the State of the Land was in him 21 H. 7. 34. b. Pl. Com. 59. a. Wimbishes case So it is if the Tenant for life and he in the remainder or reversion in fee joyne in a feoffment by Deed the livery of the freehold shall move from the leffee and the inheritance from him in the reversion or remainder from each of them according to his estate Pl. Com. 140. Brownings case 2 H 5. 7. 13 H. 7. 14. 13 E. 4. 4. a. 27 H. 8. 13. M. 16. and 17 El. 339. But if he in the reversion in fee and Tenant for life joyn in a feoffment per paroll this shall be as some hold first a surrender of the estate of Tenant for life and then the Feoffment of him in the reversion for otherwise if the whole should passe from the lessee then he in the reversion might enter for the forfeiture and every mans act ut res magis valeat shall be construed most strongly against himself If the disseisor and disseisee joyn in a Charter of feoffment and enter into the Land and make livery it shall be accounted the feoffment of the disseisee and the confirmation of the disseisor Placitum à placendo quia omnibus placet Fo. 303. a. Ordine placitandi servato servatur jus c. 1. In good order of pleading a man must plead to the jurisdiction of the Court. 2. To the person of the plaintiffe and to the defendant 3. To the Count. 4. To the Writ 5. To the action c. Bract. li. 5. fo 400. Britton fo 41. a. and 122. 40. E. 3. 9. b. The count must be agreable and conform to the writ the barre to the count c. and the judgement to the count Certa debet esse intentio narratio certum fundamentum et certa res quae deducitur in judicium Note three kind of certainties 1. To a Common intent and that is sufficient in a barre which is to defend the party and to excuse him 2. A certaine intent in generall as in Counts replications and other pleadings of the plaintiffe that is to convince the defendant and so in indictments c. 3. A certaine intent in every particular as in Estoppells Bract. l. 2. fo 140. lib. 5. 120 c. Lobs case Where a matter of Record is the foundation or ground of the suit of the plaintiffe or of the substance of the plea there it ought to be certainly and truly alleadged otherwise it is where it is but a conveiance Pl. Com. 65. a 6. 100. 376. and 410. 8. Ass 29. 5 E. 4. 70 E. 4. 1. Ambiguum placitum interpretari
of a grant of a rent service the attornment of the disseisee sufficeth 21 H. 6. 9. b. It was holden by Dyer and Mounson in the Argument of Brace bridges case that if he that hath a rent charge granteth it over for life and the Tenant of the Land attorn thereunto and after he grant the reversion of the rent charge that the grantee for life may attorne alone and that these words of Littleton are to be understood when a rent charge or rent seck is granted in possession and a quid juris clamat in that case did lye against the grantee for life 46 E. 3. 27. 2 H. 6. 9. Vide Littleton Sect 549. and 553. A man maketh a Lease for life and after grants to A. a rent charge out of the reversion A. grants the rent over he in the reversion must Attorne and not the Tenant of the freehold for that the freehold is not charged with the rent for a release made to him by the grantee doth not extinguish the rent and Littleton is to be understood that the Tenant of the freehold must attorne when the freehold is charged Vide fo 312. a. Littleton speaketh of five kindes of inheritances whereto an Attornement is requisite 1. Of a Seignory rent service c. 2. Of a rent charge 3. Of rent seck 4. Of a reversion 5. Of a remainder of Lands For the Tenant shall never need to Attorne but when there is tenure attendance remainder or payment of a rent And therefore if an annuity common of pasture common of estovers be granted for life or years c. the reversion may be granted without any Attornment 21 H. 7. 1. 1 H. 5. 1. 37. Ass 14. 36. Ass p. 3. 31 H. 8. Attorn Br. 59. Sect. 557. Fol. 312. b. In this case of Littleton by this escheat of the remainder the Seigniory is extinct for the fee simple of the Seigniory being extinct there cannot remain a particular estate for life thereof in respect of the tenure and attendance over 3. 3 H. 6. 1. old tenures 107. 15 E. 4. 15. a. per Littleton But otherwise it is of a rent charge in fee for if that be granted for life and after he in the reversion purchase the Land so as the reversion of the rent charge is extinct yet the grantee for life shall enjoy the rent during his life for there is no tenure or attendance in this case Sect. 558 559. Fo. 313. a. Littleton now commeth to speak of Atornments in Law or implyed 3 E. 3. 42. 15 E 3. Attorne 11. If the Lord grant his Signiory to the Tenant of the land and to a stranger and the Tenant accept the Deed this acceptance is a good Attornment to extinguish the one moity and to vest the other moity in the grantee Suspense is when a Seigniory Rent profit apprehend c. by reason of unity of possession of the Rent Seigniory c. of the Land out of which they issue are not in esse for a time and they are said to be extinguished when they are gone for ever and can never be revived that is when one man hath as high and perdurable estate in the one as in the other Sect. 560. 561. Fol. 313. a. b. Note that albeit a grant may enure by way of release and a release to the Tenant for life doth work an absulute extinguishment whereof he in the remainder shall take benefit yet the Law shall never make any construction against the purport of the grant to the prejudice of any or against the meaning of the parties c. Vide lib. c. Sect. 562. Fo. 314. a. Note a diversity when the whole estate in the Seigniory is suspended and when but part of the estate in the Seigniory is suspended but for terme of life and therefore as to all things concerning the right it hath its being but as the possession during the particular estate the grantee shall take no benefit therefore during that time he shall have no rent service Wardship Relief Heriot c. because these belong to the possession but if the Tenant dyeth without heir the Tenancy shall escheat unto the grantee for that it is in the right and yet when the Seigniory is revived by the death of the Tenant there shall be wardship as if the Tenant marry with the Seignioresse and dyeth his heire within age they shall have the wardship of the heire Also in the case that Littleton here putteth albeit the Seigniory be suspended but for life yet some hold that he cannot grant it over because the grantee took it suspended and it was never in esse in him but if the Tenant make a Lease for years or for life to the Lord there the Lord may grant it over because the Seigniory was in esse in him and the fee simple of the Seigniory is not suspended but if the Lord disseise the Tenant or the Tenant infeoffe the Lord upon condition there the whole estate in the Seigniory is suspended and therefore he cannot during the suspension take benefit of any escheat or grant over his Seigniory 34. Ass p. 15. 16 E. 3. vouch 83. 5 E. 3. Twongs case Sect. 563. 564. Fo. 314. Attornment for part cannot be void for that and good it cannot be unlesse it be for the whole 4 E. 3. 55. Malmans case 5 E. 4. 2. 7 H. 4. 10. 35 H. 6. 8. per prisot And payment of any parcell of the services is an agreement in Law to the grant 40 E. 3. 34. Intentio inservire debet legibus non leges intentioni 20 H. 6. Judgement in scire facias pur parcell de le services est bone attorn en ley commit que il est presume quod judicium redditur in invitum 48 E. 3. 24. 37 H. 6 14. per Moyle 17 E. 3. 29. Note that in case of Deed nothing passeth before attornment In the case of the fine the thing granted passeth as to the State but not to distraine c. without Attornment In the case of the King the thing granted doth passe both in estate and in privity to distreine c. without Attornment unlesse it be of Lands or Tenements that are parcell of the Dutchy of Lancaster and lye out of the County Palatine Sect. 565. Fo. 315. b. Note a diversity between money given by way of Attornment and where it is given as parcell of the Rent by way of seisin of the Rent And therefore a payment in name of seisin is more beneficiall for the grantee because this is both an actuall seisin and an Attornment in Law and yet being given before the day in which the Rent is due it shall not be abated out of the Rent 39 H. 6. 3. 26. 5 E. 4. 2. Vide S. 235. 7 H. 4. 2. Attorny Br. 97. Sect. 566. As of an Attornment so a seisin of a rent by the hands of one joynt-tenant is good for al and a seisin of part of the rent is a good seisin
H. 6. 33. 48 E. 3. 23. But now the Statute of 4 H. 7. 32 H. 8. having given a further strength to Fines to barre the issue in Taile the reason of the Common Law being taken away tâ—e Tenant in this case shall be compelled to attorn Windams Case ubi suprà Sect. 576. 577. fol. 319. a. Where a lease is made for life saving the reversion to the lessor if the lessor disseise the lessee and make a feoffment in fee if the Tenant for life enter and make Wast the feoffee shall have a Writt of Wast without any other Attornment for the lessee shall not be misconusant of the Feoffments that were made of and upon the same land And the reason of the Attornment is because the whole fee simple pass by the feoffment and the lessee by his Regress leaveth the reversion in the feoffee which is a good attornment The same Law it is of a Tenant by statute merchant or Staple or Elegit and so it is of a lease for yeares 46 E. 3. 30. b. 2 H. 5. 4. 5 H. 5. 12. Brasbritches case P. 15 Eliz. Some doe hold that in that case if the lessee for life doe recover in assize this is no Attornment because he comes to it by course of Law and not by his voluntary act And yet in that case as in the case of the Fine the state of the reversion is in the feoffee But others doe hold it all one in case of a recovery and a regres 18 E. 3. 48. b. lib. 6. fol. 60. b. Sir Moyle Fiuches Case If the lessor disseise Tenant for life or ouste Tenant for years and make a feoffment in fee by this the rent reserved upon the lease for life or years is not extinguished but by the regress of the lessee the rent is revived because it is incident to the reversion But if a man be seised of a rent in fee and disseise the Tenant of the land and make a feoffment in fee the Tenant re-enter the rent is not revived And so note a diversity between a rent incident to a reversion and a rent not incident to a reversion 9 H. 6. 16. Dean of Pauls Case 20 Eliz. If a man make a lease for life and then grant the reversion for life and the lessee attorn and after the lessor disseise the lessee for life and make a feoffment in fee and the lessee re-enter this shall leave a reversion in the grantee for life and another reversion in the feoffee and yet this is no Attornment in Law of the grantee for life because he doth no act nor assent to any which might amount to an Attonement in Law Et res inter alios acta alteri nocere non debet Neither hath the grantee for life the land in possession So as he may well be misconusant of the feoffment made upon the land and so out of the reason of Littleton But yet the reversion in fee doth pass to the feoffee Sect. 578 579. fo 319. b. 320. a. Where the Ancestor taketh an estate of Freehold and after a remainder is limited to his right heires the fee simple vesteth in himselfe as well as if it had been limited to him and his heirs for his right heirs are in this case words of limitation of estate and not a Purchase Otherwise it is where the Ancestor taketh but an estate for yeares As if a lease for years be made to A. the remainder to B. in Tail the remainder to the right heirs of A. there the remainder vesteth not in A. but the right heirs shall take by purchase if A. dye during the estate Tail for as the Ancestor and the heir are Correlativa of Inheritances so are the Testator and Executor and the Intestate and Administrator of Chattels Quod vanum inutile est lex non requirit Vide Sect. 194. 273. fo 320. a. The Conusee of a Fine before Attornment cannot distrain because an Avowry is in lieu of an action and thereunto privity is requisite So likewise and for the same cause he can have no action of Waste nor Writ of Entry ad Com. legem or in consimili casu or in casu proviso Writ of Customs and Services nor Writ of Ward c. 8 E 3. 44. 34 H. 6. 7. 12 E. 4. 4. 40 E. 3. 7. 5 H. 5. 12. 3 E. 2. Droit 33. But if a man make a lease for years and grant the reversion by Fine if the lessee be ousted and the Conuse disseised the Conusee without Attornment shall maintain an Assize for this Writ is maintained against a stranger where there needeth no privity and such things as the Lord may seise or enter into without suing any action there the Conusee before any Attornment may take benefit thereof as to seise a Ward or Heriot or to enter into the Lands or Tenements of a Ward or escheated to him or to enter for an alienation of Tenant for life or years or of Tenant by Statute Merchant Staple or Elegit to his disherison Sect. 580 581 582. Fo. 320. a.b. It is said in our Books that if Tenant for life have a priviledge not to be impeachable of Waste or any other priviledge if he doth attorn without saving his priviledge that he hath lost it which is to be understood where he attorneth in a Quid juris clamat brought by the Conusee of a Fine for that the Writ supposeth him to be but a bare Tenant for life and by his generall Attornment according to the Writ he is barred for ever to claim any priviledge but a bare estate for life But if upon a grant of the reversion by Deed the Tenant for life doth attorn he loseth no priviledge for there can be no conclusion or barre by the Attornment in palis and so it is of an Attornment in Law As if the lessor disseise the lessee for life and make a Feoffment in fee and the lessee re enter c. 43 E. 3. 5. 45 E. 3. 6. 39 H. 6. 25. F.N. B. 136. b. But in the Quid juris clamat if the Plantiff be within age so as he cannot acknowledge the priviledge the Tenant shall not be compelled to attorn untill his full age when he may acknowledge it 43 E. 3. 5. But otherwise it is as some hold if a Quid juris clamat be brought by Baron and feme the priviledge shall be entered into the Roll notwithstanding she is a feme covert 45 E. 3. 11. a. Vet. N. B. in per que servitia 39 H. 6. 25. 18 E. 4. 7. And in a per que servitia brought by the Conusee of the Mesne the Tenant may shew that he held by Homage Auncestrel and saving to him his Warrant and Acquitall he is ready to attorn So if the Tenant hath any other Acquittall and the Mesne levy a Fine to one for life the remainder to another in fee the Tenant for life bringeth a per que servit and the Tenant is ready to
attorn saving his Acquitall and the Plaintiffe acknowledge it and thereupon Tenant attorn Tenant for life dyeth in this case albeit Reg. the Attornment to the Tenant for life is an Attornment to him in remainder yet in this case he in the remainder shall not distrain till he hath acknowledged the Acquitall which must be in a per que servit brought by him against the Tenant vide S. 557. Sect. 583. Fol. 321. a. Note a diversity between an act in Law that giveth one inheritance in lieu of another and an act in Law that conveyeth the estate of the Conusee only Of the former Littleton here putteth an Example of the escheat of the Mesnaâ—ty which drowneth the Seigniory Paramount and therefore reason would that the Lord by this act in Law should have as much benefit of the Mesnalty escheated as he had of the Seigniory that was drowned and he hath no remedy to compell the Tenant to Attornment Also the Lord cometh to the Mesnalty by a Seigniory Paramount and therefore needeth no Attornment As if lessee for life be of a Manor and he surrender his estate to the lessor there needs no Attornment of the Tenants because the lessor is in by a Title Paramount Temps E. 2. Attor 18. 39. H. 38. per Prifot lib. 6. f. 68. Sir M. Finches Case 5 H. 7. 18. per Cur. But if the Conusee dye and the Law casteth his Seigniory upon his heir by Discent he shall not be in any better estate then his ancestor was because he claimeth as heir meerly by the Conusee Sect. 584. Fol. 321. b. vide c. If a man make a lease for life or years and after levy a Fine to A. to the use of B. and his heirs B shall distrain and have an action of Waste albeit the Conusee never had any Attornment because the reversion is vested in him by force of the Statute and hath no remedy to compell the lessee to attorn 27 H. 8. c. 10. Sect. 585. 586. Fol. 322. a.b. Here doth Littleton put a case where a man may have a Seignory rent reversion or remainder meerly by the act of the party and may distrain and have any action without any Attornment and that is by devise of Lands deviseable by Custom when Littleton wrote by the last Will aad Testament of the owner 34 H. 6. 6. 5 H. 7. 18 F N B. 121. n. Omne Testamentum morte consummatum ultima voluntas testatoris est perimplenda secundum veraÌ„ intentionem suam reipublicae interest suprema hominum testamenta rata haberi The Will of the Devisor expressed by his Testament shall be performed according to the intent of the Devisor and it shall not lie in the power of the Tenant or lessee to frustrate the Will of the Devisor by denying his Attornment vide S. 167. Brit. fol. 78. 212. b. Sect. 587 588 589. Fol. 323. a b The disseisor cannot disseise the Lord of the Rents or Services without the Attornment of the Tenants to the disseisor for seeing an Attornment is requisite to a feoffment and other lawfull Conveyances A fortiori a disseisor or other wrong doer shall not gain them without Attornment The like Law is of an Abator and an Intrudor But albeit the disseisor hath once gotten the Attornment of the Tenants and payment of their rents yet may they refuse afterwards for the avoiding of their charge And here the Attornment of the Tenant of a Manor to a disseisor of the Demesns shall dispossess the Lord of the rents and services parcell of the Manor because Demesns Rents Services make but one intire Manor and the Demesns are the principall but otherwise it is of rents and services in gross 6 H. 7. 14. 11 H. 7. 28. 11 H. 4. 14. a.b. For a man cannot be disseised of a rent service in gross rent charge or rent seck by Attornment or payment of the rent to a stranger but at his election for the Rule of Law is Nemo redditum alterius invito Domino percipere aut possidere potest vide S. 237 238 239 240. What be disseisins of rent services rent charge and rent secks and payment to a stranger is none of them but at the Lords election 24 E. 3. 4. 1 E 5. 5. A discent of a rent in gross bindeth not the right owner but that he may distrain albeit he admitted himself out of possession and determined his election as by bringing of an Assize c. 5 E. 4. 1. 23 H. 30. Ass 439. 16 Ass p. 15. *** CHAP. XI Of Discontinuance Sect. 592. Fol. 325. a. DIscontinuare nihil aliud significat quà m intermittere desuescere interrumpere 8 H. 4. 8. b. 11 H. 4. 85. b. A discontinuance of estates in Lands or Tenements is properly in legall understanding an alienation made or suffered by Tenant in Taile or by any that is seised in auter debit whereby the issue in Tail or the heir or successor or those in reversion or remainder are driven to their action and cannot enter I have added properly by good warrant of our Author himself for Sect. 470. he useth Discontinuance for a devesting or displacing of a reversion though the entry be not taken away Also vide the Stature of 1 E. 6. c. 7. 31. Eliz. c. 2. lib. 7. fo 30 31. le case de Discontin de processe When Littleton wrote the estate in Lands and Tenemens might have been discontinued five maner of ways viz. By Feoffment by Fine by Release with Warranty Confirmation with Warranty and by suffering of a Recovery of a Praecipe quod red and this was to the prejudice of five maner of persons viz. of Wives of Heirs of Successors of those in Reversion and of those in Remainder But for Wives and their Heirs and for Successors the Law is altered by Acts of Parliament since Littleton wrote Sect. 593. Fol. 325. b. Nota that in Law the Covent albeit they be Regular and dead persons in Law yet are they said in Law to be Capitulum to the Abbot as well as the Dean and Chapter that be Secular to the Bishop But it is to be observed That a sole Body Politick that hath the absolute right in them as an Abbot Bishop c. may make a discontinuance but a Corporation aggregate of many as Dean and Chapter Warden and Chaplains c. cannot make any discent for if any joyn the grant is good and if the Dean Warden c. make it alone where the Body is aggregate of many it is void and worketh a disseisin 21 E. 4. 86. vide Sect. 528 648. By the Statute of 1 Eliz. c. 10. 1 Iac. c. 3. Bishops and all other Ecclesiasticall persons are disabled to alien or discontinue any of their Ecclesiasticall Livings Sect. 594. Fo. 326. a. By the pur vieu of the Statute of 32 H. 8. c. 28. the wife and her heirs after the decease of her husband may enter into the Lands and Tenements of the
faire pur ceo que tout le matter est icy transcribe verbatim But herein are two diversities Notable The first is that having regard to the parties to the surrender the estate is absolutely drowned as in this case between the lessee and the second Baron But having regard to strangers who were not parties or privies thereunto lest by a voluntary surrender they may receive prejudice touching any right or interest they had before the surrender the estate surrendred hath in consideration of Law a Continuance As if a reversion be granted with Warranty and Tenant for life surrender the grantee shall not have execution in value against the grantor who is a stranger during the life of Tenant for life for this surrender shall work no prejudice to the grantee who is a stranger 45 E. 3. 13. 5 H. 5. 9. 9 E. 4. 18. So if Tenant for life surrender to him in reversion being within age he shall not have his age for that should be a prejudice to a stranger who is become Demandant in a real action 40 E. 3. 13. 1 H. 6. 1. 24 E. 3. 77. If Tenant for life grant a rent charge and after surrender yet the rent remaineth for to that purpose he cometh in under the Charge 5 H. 5. 8. 26 Ass 38. 7 H. 6. 1. b. If a Bishop be seised of a rent charge in fee the Tenant of the land infeoff the Bishop and his successors the Lord enter for the Mortmain he shall hold it discharged of the rent for the entry for the Mortmain affirmeth the alienation in Mortmain and the Lord claimeth under his estate but if Tenant for life grant a rent in fee and after infeoff the grantee and the lessor enter for the forfeiture the rent is revived for the lessor doth claim above the Feoffment But if I grant the reversion of my Tenant for life to another for term of his life and Tenant for life attorn now is the waste of Tenant for life dishpunishable 48 E. 3. 16. Afterwards I release to the grantee for life and his heirs or grant the reversion to him and his heirs now albeit the Tenant for life be a stranger to it yet because he attorneth to the grantee for life the estate for life which the grantee had shall have no continuance in the eye of Law as to him but he shall be punished for Waste done afterwards The second diversity is That for the benefit of an estranger the estate for life is absolutely determined As if he in the reversion make a lease for years or grant a rent charge c. and then the lessee for life surrender the lease or rent shall commence maintenance So in the case of Littleton first between the lessee and the second husband the state for life is determined And 2. for the benefit of the issue it shall be so adjudged in Law Here note a diversity when it is to the prejudice of a stranger and when it is for his benefit If a man make a lease to A. for life reserving a rent of 40. s. to him and his heirs the remainder to B. for life the lessor grant the reversion in fee to B. A. attorneth B. shall not have the rent for that although the fee simple do drown the remainder for life between them yet as to a stranger it is in esse and therefore B. shall not have the rent but his heir shall have it A Master of an Hospital being a sole Corporation by the consent of his Brethren makes a lease for years of part of the possession of the Hospital afterwards the lessee for years is made Master the term is drowned for a man cannot have a term for years in his own right and a Freehold en auter droit to consist together as if a man lessee for years take a feme lessor to wife But a man may have a Freehold in his own right and a term in auter droit and therefore if a man lessor take the feme lessee to wife the term is not drawned but he is possessed of the term in her right during the Coverture 6 H. 4. 7. Pl. Com. 419. So if the lessee make the lessor his executor the term is not drowned 32 H. 8. Br. Surr. 5. 2. But if it had been a Corporation aggregate of many the making of the lessee Master had not extinguished the term no more then if the lessee had been made one of the Brethren of the Hospital Sect. 637. Fo. 339. a. Nota que un estate tail ne poit este discont mes la ou cestuy que fait discont fuit un foitâ— seisee quia omnis privatio praesuppoâ—it habitum perforce de la tail sinon que foit per reason de garrantie c. for in many cases a Warranty added to a Conveyance is said to make a Discontinuance ab effectu because it taketh away the entry of him that right hath as a Discontinuance doth As if Tenant in Tail be disseised and dyeth the issue in Tail releaseth to the disseisor with Warranty c. 9 E. 4. 19. 12 E. 4. 11. 21 E. 4. 97. Vide Sect. 592 596 597 601 640 658. Sect. 642. Fo. 340. b. Albeit the reversion in this case be executed in the Lord by the Escheat in the life of Tenant in Tail yet because he is not in by the Tenant in Tail but by Escheat it worketh no discontinuance But if it had been executed in the life of Tenant in Tail in the grantee which was in by Tenant in Tail then the Lord by Escheat should have taken advantage by it Vide Sect. 620. lib. 1. fo 136. lib. 2. fo 62 63. Sect. 643 644 645. In whom the fee simple of the Gleab c. is is a question in our Books Some hold that it is in the Patron 8 H. 6. 24 12 H. 8. 8. But that cannot bt for two Reasons 1. For that in the beginning the Land was given ro the Parson and his successors and the Patron is no successor 2. The words of the Writ of Juris utrum be Si sit libera Eleemosyna ecclesiae de D. and not of the Patron Reg. 307. a. 45 E. 3. Eschang 12 H. 8 9. Some others do hold That the fee simple is in the Parson and Ordinary F N B 19. I. But this cannot be for the causes abovesaid and therefore of necessity the fee simple is in abeiance as Littleton saith Upon consideration of all our Books I observe this diversity That a Parson or Vicar for the benefit of the Church and of his successor if in some cases esteemed in Law to have a fee simple qualified but to do any thing to the prejudice ofs successors in many cases the Law adjudgeth him to have in effect but an estate for life Causae Ecclesiae publicis causis aequiparantur summa ratio est quae pro religione facit Bract. lib. 3 f. 226. Et Ecclesia fungisur vice minoris meliorem facere potest
which inheritances put in Abeyance are by some called Haereditates jacentes Bract. l. 1. c. 2. and some say Que le fee est en baiaunce Brit. fo 249. Sect. 641. Fol 343. b. Principium est quasi primum caput from which many cases have their original or beginning which is so strong as it suffereth no contradiction Contra negantem principia non est disputandum 11 H. 4. 9. Note a diversity when the right of fee simple is perpetually by Judgement of Law in Abeyance without any expectation to come in esse there he hath the qualified fee Concurrent ' his quae in jure requiruntur may charge or alien it as in the case of Parson Vicar Prebend c. But where the fee simple is in Abeyance and by possibility may every hour come in esse As if a lease for life be made the remainder to the right heirs of I.S. the fee simple cannot be charged till I.S. be dead Lands intailed may be charged in fee for the estate Tail may be cut off by Fine or Recovery Also the estate Tail may continue and yet Tenant in tail may lawfully charge the Land and binde the issue in Tail 44 E. 3. 21 22. As if a disseisor make a gift in Tail and the Donee in consideration of a Release by the disseisee of all his right to the Donee grant a rent charge to the disseisee and his heirs proportionable to the value of his right this shall binde the issue in Tail Vide Sect. 1. Bridgewaters Case 59. fol. 48. b. Which Lands by the Rule of Littleton may be charged and therefore if the owner of those 13 acres grant a rent charge out of those 13 acres generally lying in the Meadow of eighty without mentioning where they lie particularly there as the state in the land removes the charge removes also If the Parson dye and in time of Vacation the Patron of the assent of the Ordinary and the Patron and Ordinary grant an Annuity or rent charge out of the Gleab this shall binde the succeeding Parsons for ever A Church Parochial may be Donative and exempt from all Ordinary Jurisdicton and the Incumbent may resign to the Patron and not to the Ordinary neither can the Ordinary visit but the Patron by Commissioners to be appointed by him And by Littletons Rule The Patron and Incumbent may charge the Gleab and albeit it be Donative by a Lay-man yet merè Laicus is not capable of it but an able Clerk infra sacros ordines is for albeit he come in by Lay Donation and not by admission or institution yet his function is spiritual Vide 133 530. 11 E. 3. Jur. utr 3. 8. Ass 29. 31. 13 Ass 2. As the King may create Donatives exempt from the visitation of the Ordinary so he may by his Charter license any subject to found such a Church or Chappel and to ordain that it shall be Donative and not Presentable and to be visited by the Founder and not by the Ordinary And thus began Donatives in England whereof common persons were Patrons F.N.B. 35 E. 4. 2. A.B. Dyer 10. El. f. 273. 14 El. cap. 5. 2 H. 5. cap. 1. Ordinarius is he that hath ordinary Jurisdiction in causes Ecclesiastical immediate to the King and his Courts of Common Law for the better execution of Justice as the Bishop c. Regularly according to the Ecclesiastical Laws allowed by the Laws of this Realm viz. which are not against the Common Law whereof the Kings Prerogative is a principal part nor against the Statute and Customs of the Realm The Ordinary and other Ecclesiastical Judges do proceed in Causes within their Conusance and this Jurisdiction was so bounded by the ancient Common Laws of the Realm and so declared by Act of Parliament 25 H. 8. c. 19. 33 H. 6. 34. 32 H. 6. 28. Note that institution is a good plenarty against a Common person but not against the King unless he be inducted and that is the cause that Regularly plenarty shall be tryed by the Bishop because the Church is full by institution which is a spiritual act but void or not void shall be tryed by the Common Law 22 H. 6. 27. 38 E. 3. 4. At the Common Law if an usurpation had been had upon an Infant or feme Covert having an Advowson by discent or upon Tenant for life c. the Infant feme Covert and he in the reversion were driven to their Writ of Right of Advowson for at the Common Law if the Church were once full the Incumbent could not be removed and plenarty was a good plea in a Qu. imp or Assize of dar Presentment and the reason of this was to the intent that the Incumbent might quickly intend and apply himself to his spiritual charge And secondly the Law intended That the Bishop that had Cure of Soules within his Diocesse would admit and institute an able man c. 6 E. 3. 28. 39. 52. If the King do present to a Church and his Clerk is admitted and instituted yet before induction the King may repeal and revoke his Presentation But Regularly no man can be put out of possession of his Advowson but by admission and institution upon an usurpation by a Presentation to the Church Cum aliquis jus praesentandi non habens praesentaverit c. and not by collation of the Bishop 45 E. 3. 35. 38 E. 3 4. 13 El. Dyer 292. 18 El. Dyer 348. 14. E. 4. 2. 7 H. 4. 32. fol. 344. b. Nota that an usurpation upon a presentation shall not only put out of possession him that hath right of presentation but right of Collation also Therefore at this day the Incumbent shall be removed by a Qu. imp or Assize of dar ' presentment if there be not a plenarry by six moneths before the Teste of the Writ but then the Incumbent must be named in the Writ or else he shall never be removed 9 H. 6. 32. 56. 19 H. 6. 68. At the Common Law if hanging the Qu. imp against the Ordinary for refusing of his Clerk and before the Church were full the Patron brought a Qu. imp against the Bishop and hanging the Suit the Bishop admit and institute a Clerk at the presentation of another in this if Judgement be given for the Patron against the Bishop the Patron shall have a Writ to the Bishop and remove the Incumbent that came in pendente lite by usurpation for pendentelite nihil innovetur and therefore at the common Law it was good policy to bring the Qu. imp against the Bishop as speedily as might be So it is good policy at this day to name the Bishop in the Qu. imp for then he shall not present by lapse 30 E. 3. Qu. imp Statham 5 E. 4. 115. 9 E. 4. 30. Sect. 649 650. fol. 345. a. If Tenant in Tail of lands holden of the King be attainted of Felony and the King after Office seiseth the same the estate Tail is
unam possidere 19. H 6. 28. b. per Newton If a man hath issue two daughters Bastard eign and Mulier puisne and dye seised and they both enter generally the sole possession shall not be adjudged onely in the Mulier because they both claim by one and the same Title 17. E. 3. 59. 11. Ass p. 23. Barretor is a common mover and exciter or maintainer of suits quarrels or parts either in Courts or elsewhere in the Countrey l. 8. f 36. b. Case de Barretry fo 368. b. Extortion in his proper sense is a great misprision by wresting or unlawfully taking by any Officer by colour of his Office any money or thing valuable of or from any man qd non est debitum vel quod est ultra debit ' vel ante tempus quod est debitum Pl. Com. 64. l. 10. 10. 1. Beausages Case W 1. c. 26. c. W. 1. c. 10. 42 E. 3. 5. 27. Ass 14. Pl. Com. 68. Robbery is apparant and hath the face of a Crime but Extortion puts on the visure of Vertue for expedition of Justice c. and it is ever a companied with that grievous sin of Perjury Pl. Com. Dive and Mannings Case But largely Extortion is taken for any Oppression by extort power or by colour or pretence of Right and so Littleton taketh it in this place 7 E. 4. 21. Manutenentia signifies a taking in hand bearing up or upholding of quarrels and sides to the disturbance or hinderance of Common Right 1 E. 3. c. 14 20 E. 3. c. 4 5. By the Statute of 1 R. 2 c. 9. it is enacted That feoffments made for maintenance shall 〈◊〉 be holden for none and of no value so as Littleton putteth his case at the Common Law for he seemeth to allow the feoffment where he saith tiel feoffment fuit le cause c. But some have said That the feoffment is not void between the feoffer and the feoffee but to him that right hath Now since Littleton wrote there is a notable Statute 32 H. 8. c. 9. made in suppression of the causes of unlawfull maintenance The effect of which Statute is 1. That no person shall bargain buy sell or obtain any pretenced Rights or Titles 2. Or take promise grant or Covenant to have any Right or Title of any person in or to any lands c. but if such person which so shall bargain c. their Ancestors or they by whom he or they claim the same have been in possession of the same or of the reversion or remainder thereof or taken the * rents or profits thereof by the space of one whole year c. upon pain to forfeit the whole value of the lands c. and the buyer or taker c. knowing the same to forfeit also the value * Those words are but explanatory and put for example c. 3. Provided that it shall be lawfull for any person being in lawfull possession c. to obtain or get the pretenced Right or Title c. Nota That Title or Right may be pretenced two manner of wayes 1. When it is meerly in pretence or supposition and nothing in verity 2. When it is a good Right or Title in verity and made pretenced by the act of the party and both these are within the said Statute For example If A. be lawfull owner of land and is in possession B. that hath no right thereunto grant to A or contracteth for the land with another the grantor and the grantee albeit the grant be meerly void are within the danger of the Statute for B. hath no right at all but onely in pretence If A. be disseised in this case A. hath a good lawfull right yet if A. being out of possession grant to or contracteth for the land with another he hath made now his good right of Entry pretenced within the Statute and both the grantor and the grantee within the danger thereof A fortiori of a right of Action quod nota Pl. Com. 80 c. Partridges Case It is further to be known That a Right or Title may be considered three manner of wayes 1. As it is naked and without possession 2. When the absolute Right cometh by release or otherwise to a wrongfull possession and no third person hath either jus proprietatis or jus possessionis 3. When he hath a good right and a wrongfull possession As to the first somewhat hath been said As to the second taking the former example If A. be disseised and the disseisee release unto him he may presently sell grant or contract for the land and need not tarry a yeer for it is a rule upon this Statute that whosoever hath the absolute ownership of any Land tenements or haereditaments as in this case the disseisor hath there such owner may at his pleasure bargaine grant or contract for the land for no person can thereby be prejudiced or grieved 6 E. 6. Br. Maintenance 38. And so if a man Morgage his Land and after redeem the same or if a man recover land upon a former title or be remitted to an ancient right he may at any time bargaine c. As to the third if in the case aforesaid the disseisor dyeth seised and A. the disseisee enter and disseise the heir of the disseisor albeit he hath an ancient right yet seeing the possession is unlawfull if he bargaine or contract for the land before he hath been in possession by the space of a yeer he is within the danger of the Statute because the heir of the disseisor hath right to the possession and he is thereby grieved sic de similibus A Lease for yeers is within the Statute for the Statute saith not the right but any right and the offendor shall forfeit the whole value of the Land 23. Eliz Dy. 374. Pl. Com. Fo. 87. But yet if a man make a Lease for yeers to another to the intent to try the Title in an Eject fir that is out of the statute because it is in a kind of course of Law but if it be made to a great man or any other to sway or countenance the cause that is within this statute M. 30. and 31. El. 28. 11. inter Finch and Cocham in Com. Banc. Fo. 369. b. A Customary right or a pretence thereof to lands holden by Copie is within this statute l. 4. fo 26. Copihold case If there be Tenant for life the remainder in fee by lawfull and just title he in the remainder may obtain and get the pretenced right or title of any stranger not onely for that the particular estate and the remainder are all one but for that it is a mean to extinguish the seeds of troubles and suits and cannot be to the prejudice of any 34 H. 8. Dy. 52. And where the Statute saith being in lawfull possession by taking the yeerly rent c. those words are but explanatory and put for example for howsoever he be lawfully seised in possession
reversion or remainder it sufficeth though he never took profit But the matter observable upon this proviso is that if a desseisor make a Lease for lives or yeers the remainder for life in taile or in fee he in remainder cannot take a promise or Covenant that when the disseisee hath entered upon the Land or recovered the same that then he should convey the Land to any of them in remainder thereby to avoid the particular estate or the interest or estate of any other for the words of the proviso be buy obtain get or have by any reasonable way or mean and that is not by promise or Covenant to convey the Land after entry or recovery for that is neither lawfull being against the expresse purview of the body of the act and not reasonable because it is to the prejudice of a third person But the reasonable way or meane intended by the statute is by release or confirmation or such conveyances as amount to as much Sect. 703. Fo. 370. a. A Warranty lineall is a Covenant reall annexed to the Land by him which either was owner or might have inherited the Land and from whom his heire lineall or collaterall might by possibility have claimed the Land as heire from him that made the warranty In a Jur. utr brought by a Parson of a Church the Collaterall Warranty of his Ancestor is no barre for that he demands the Land in the right of his Church in his politick capacity and the Warranty descendeth on him in his naturall capacity 27 H. 6. garr 48. But some have holden that if a Parson bring an Ass that a Collaterall warranty of his Ancestor shall bind him for that the Ass is brought of his possession and seisin and he shall recover the meane profits to his own use 34 E. 3. garr 71. But seeing he is seised of the freehold whereof the Ass is brought in jure Ecclesiae which is in another right then the warranty it seemeth that it should not be any barre in the Ass The like Law is of a Bishop Archdeacon Dean Master of an Hospital and the like of their sole possessions and of the Prebend Vicar c. King H. 3. gave a Manor to Edmond Earl of Cornwall and to the heires of his body saving the possibility of Reverter and dyed The Earl before the Statute of W. 2. c. 1. de donis Cond by Deed gave the said Manor to another in fee with Warranty in exchange for another Manor and after the said Statute Anno 28 E. 1. dyeth without issue leaving Assets in fee simple which is Warranty and Assets descended upon King E. 1. as Cousin German c. And it was adjudged that the King as heire to the said Earl Edmond was by the said Warranty and Assets barred of the possibility of Reverter which he had expectant upon the said gift albeit the Warranty and Assets descended upon the natural body of King E. 1. as heir to a Subject and E. 1. claimed the said Manor as in his Reverter in jure Coronae in the capacity of his Body Politick in which right he was seised before the gift 45 Ass 6. 6 E. 3. 56. Pl. Com. 234. 553 554. Vide 27 H. 6. garr 40. 34 E. 3. garr 71. In this case how by the death of the said Earl Edmond without issue the Kings Title by Reverter and the Warranty and Assets came together and that the Warranty was collateral yet the King shall not be barred without Assets as a Subject shall be and many other things are to be observed in this case which the learned Reader will observe Vide Sect. 711. 712. Sect. 704 705. Fo. 371. a. Littleton doth agree with the Authority of our Books 46 E. 3. 6. 5 E. 3. 14. 19 H. 8. 12. so as the diversities do stand thus 1. Where the disseisin and feoffment are uno tempore and where at several times 2. Where the disseisin is with intent to alien with Warranty and where the disseisin is made without such intent and the alienation with Warranty afterwards made Sect. 706. ibid. Upon every Conveyance of lands c. as upon Fines Feoffments Gifts c. Releases and Confirmations made to the Tenant of the land a Warranty may be made albeit he that makes the Release or Confirmation hath no right to the land c. But some do hold that by Releases or Confirmations where there is no estate created or transmutation of possession a Warranty cannot be made to the Assignee 14 E. 3. Voucher 108. 16 E. 3. ibid. 87. 18 E. 3. 6. 12 H. 7. 1. Vide S. 733 738 745. Sect. 707. Fol. 371. b. The opinion of Littleton in this case is holden for Law against the opinions in 35 E. 3. garr 73. 11 H. 4. 33. Sect. 708. Fol. 372. a. Hereby it appeareth that a Warranty that is collateral in respect of some persons may afterwards become lineal in respect of others 8 R. 2. garr 101. Whereupon it followeth That a collateral Warranty doth not give a right but bindeth onely a right so long as the same continueth but if the collateral Warranty be determined removed or defeated the right is revived 43 Ass 44. 24 H. 8. tit Tail Br. 7. H. 5. 6. tit Ass 350. 34 E. 3. Droit 29. 19. H. 6. 59. 21. H. 7. 40. 5 H. 7. 29. 3 H. 7. 9. b. And yet in an Assize the Plaintiff hath made his Title by a collateral warranty 16 Ass p. 16. 27 Ass 74. 29 Ass 50. 43 Ass 8. 14 H. 4. 13. 19 H. 6. 66. Barre signifieth legally a destruction for ever or taking away for a time of the action of him that right hath Nota That in some cases an estate Tail may be barred by some Acts of Parliament made since Littleton wrote and in some cases an estate Tail cannot be barred which might when Littleton wrote have been barred For Example if Tenant in Tail levy a Fine with Proclamation according to the Statute this is a barre to the estate Tail but not to him in reversion or remainder if he maketh his claim or pursue his action within five yeers after the estate Tail spent 4 H. 7. c. 24. ct 32 H. 8. c. 36. If a gift be made to the eldest Son and to the heirs of his body the remainder to the Father and to the heires of his body the Father dyeth the eldest Son levieth a Fine with Proclamation and dieth without issue this barreth the second Son for the remainder descended to the eldest Dalisons 2 El. 7 El. lib. 3. f. 84. If Tenant in Tail be disseised or have a right of action and the Tenant of the land levy a Fine with proclamation and five years pass the right of the estate Tail is barred If Tenant in Tail in possession or that hath a right of entry be attainted of High Treason the estate Tail is barred and the land is forfeited to the King and none of these were bars when Littleton
venter and a Son by another the eldest Son enters and dieth the land descends to the sister in this case the warranty descendeth on the Son and he may be vouched as heir and the sister as heir of the land In which case and in the other case of Borough English the Son and heir by the Common Law having nothing by discent the whole loss of the recovery in value lieth upon the heires of the land albeit they be no heires to the warranty 32 E. 3. vouch 94. 35 H. 6. 3. Then put the case that there is a warranty paramount who shall deraign that warranty and to whom shall the recompence in value go some have said that as they are vouched together so shall they avouch over and that the recompence in value shall enure according to the losse and that the effect must pursue the cause as a recovery in value by a warranty of the part of the Mother shall go to the heire of the part of the Mother c. Pl. Come 515. Some others hold that it is against the maxime of the Law that they that are not heirs to the warranty should joyn in a voucher or to take benefit of the waranty which descends not to them but that the heir at the common Law to whom the warranty descended shall deraign the warranty and recove in value and that this doth stand with the rule of the common Law Others hold the contrary and that this should be both against the rule of Law and against reason also for by the rule of Law the vouchee shall never sue to have execution in value untill execution be sued against him But in this case excution can never be sued against the heir at the common Law therefore he cannot sue to have execution over in value Secondly it should be against reason that the heire at the common law should have totum lucrum and the especial heirs totum damnum 17 E. 2. Recover in value 33. 18 E. 3. 51. l. 1. 96. Shelleyes case I find in our Books this reason is yielded that the special heires should not be vouched only for say they then could not they deraigne the warranty which should be mischievous that they should lose the benefit of the warranty if they should be vouched onely 32 E. 3. vouch 94. per Greene. But if the heire at the Common Law were vouched with them as by the Law he ought all might be saved and therefore study well this point how it may be done If Tenant in general Tail be and a common recovery is had against him and his wife where his wife hath nothing and they vouch and have judgement to recover in value Tenant in Tail dyeth and the wife surviveth for that the issue in Tail had the whole losse the recompence shall enure wholly to him and the wife albeit she was party to the judgment shall have nothing in the recompence for that she loseth nothing Pl. Com. Fo. 514. If the Bastard eigne enter and take the profits he shall be vouched onely and not the Bastard and the Mulier because the Bastard is in apparance heire and shall not disable himself 17 E. 3. 59. 20 E. 3. vouch 129. 5 H. 7. 2. If a man be seised of Lands in Gavelkind and hath issue three Sonnes and by Obligation bind himself and his heires and dieth an action of debt shall be maintenable against all the three Sonnes for the heire is not chargeable unlesse he hath lands by discent 11 H. 7. 12. 11 E 3. Det. 7. Dy. 5. El. 238. So if a man be seised of Land on the part of his Mother and bind himself and his heirs by Obligation and dyeth an action of debt shall lye against the heire on the part of the Mother without naming the heire at the Common Law and so note a diversity between a personal lyen of a bond and a reall lyen of a warranty Sect. 719. Fol. 377. a. Here it appeareth that whensoever the Ancestor taketh any estate of freehold a limitation after in the same conveyance to any of his heires are words of limitation and not of purchase albeit in words it be limitted by way of remainder and therefore here the remainder to the heires females vesteth in the Tenant in tail himself 24 E. 3. 36 27 E. 3. Age 108. 38 E 3. 26. 40. E. 3. 5. 37 H. 8 Br. nosme 1. 40. tit done Rem 61. The issues inheritable must make their claim either only by Males or only by Females so as the Females of the Males or Males of the Females are wholly excluded c. 1 H. 6. 4. Pl. Com. 414. Vide Sect. 24. But where the first limitation is to the heires males let the limitation be for default of such issue to the heires of the body of the donee and then all the issues be they Females of Males or Males of Females are inheritable If a man give Lands to a man to have and to hold to him and the heires Males of his body and to him and to the Heires Females of his body the estate to the heires Females is in remainder and the daughter shall not inherit any part so long as there is issue Male. Sect. 720. Nihil simul inventum esi perfectum saepe viatorem nova non vetus orhita fallit and therefore new inventions in assurances are dangerous 22 H. 6. 33. l. 6. f. 42. b. Sir Anthony Mildmayes case Non prosunt dominis quae prosunt omnibus artes quoniam In suo quisque negotio hebetior est quam in alieno 2 H. 4. fo 11. Action sur le case Sect. 721. Fol. 378. a. Every remainder which commeth by deed ought to vest in him to whom it is limited when livery of seisin is made to him that hath the particular estate 1. Littleton saith by Deed because if Lands be granted and rendred by Fine for life the remainder in Taile the remainder in Fee none of these remainders are in them in the remainder until the particular estate be executed 7 R. 2. scire facias 2. That the remainder be in him c. at the time of the livery This is regularly true but yet it hath divers exceptions As where the remainder is to commence upon limitation of time viz. upon the possibility of the death of one man before another which is a common possibility Pl. Com. Colthirsts case fo 65. 29. 32 H. 6. tit feoffments c. 99. 27. E. 3. 87. 12 E. 4. 2. 21 H. 7. 11. 7 H. 4. 23. 11 H. 4. 74. 18 H. 8. 3. 27. H. 8. 42. 38 E. 3. 26. 30. Ass 47. 6 R. 2 qu Iur. Dam. 20. A man letteth lands for life upon condition to have Fee and warranted the land in forma predicta afterward the lessee performeth the conditions whereby the lessee hath fee the warranty shall extend and increase according to the State And so it is in that case if the lessor had dyed before the
If a man infeoff A. to have and to hold to him his Heires and Assignes A. infeoffeth B. and his heirs B. dyeth the heire of B. shall vouch as Assignee to A. so as heires of Assignees and Assignees of Assignes and Assignes of Heirs are within this word Assignes which seemed to be a Qu. in Bractons time and the Assignee shall not onely vouch but have a Warrantia Cartae 12. E. 2. vouch 263. 19 E. 2. gar 85. 13 E. 1. ib. 93. 36 E. 3. gar 1. 4 H. 8. Dyer 1. F. N. B. 135. If a man doth warrant Land to another without this word Heires his heirs shall not vouch and regularly if he warrant land to a man and his heirs without naming Assignes his Assignee shall not vouch But if the Father be infeoffed with Warranty to him and his heires the Father infeoffeth his eldest Son with Warranty and dyeth the Law giveth to the Son advantage of the Warranty made to his Father because by act in Law the Warranty between the Father and the Son is extinct 43 E. 3. 23. 24 E. 3. 3. 11 H. 4. 94. 5 E. 3. Age 19. Pl. Com. 418. But note a diversity between a Warranty that is a Covenant real which bindeth the party to yield Lands or Tenements in recompence and a Covenant annexed to the Land which is to yield but damage for that a Covenant in many cases extendeth further then the Warranty As for Example It hath been adjudged that where two Coparceners made partition of Land and the one made a Covenant with the other to acquit her and her heirs of a Suit that issued out of the Land the Covenantee aliened in that case the Assignee shall have an action of Covenant and yet he was a stranger to the Covenant because the acquitall did run with the land 42 E. 3. b. per Finchden fol. 385. a. A. seised of the Manor of D. whereof a Chappel was parcel a Prior with the assent of his Covent Covenants by Deed indented with A. and his heirs to celebrate divine Service in his Chappel weekly for the Lord of the Manor and his Servants c. In this case the assignees shall have an action of Covenant albeit they were not named for that remedy by covenant doth run with the Land to give damages to the party grieved and was in manner appurtenant to the Manor 42 E. 3. 3. a. Laurence Pakenhams case 6 H. 4. 1. Ralph Brabsons case But if the Covenant had been made with a stranger to celebrate divine Service in the Chappell of A. and his heirs there the Assignee shall not have an action of Covenant for the Covenant cannot be annexed to the Manor because the Covenantee was not seised of the Manor Vide lib. 5. fol. 17 18. Spencers case 2 H. 4. 6. H. Hornes case And note that an Assignee of part of the Land shal vouch as Assignee As if a man make a feoffment in fee of two acres to one with Warranty to him his Heirs Assignes if he make a feoffment of one acre that feoffee shall vouch as Assignee for there is a diversity between the whole estate in part and part of the estate in the whole or of any part As if a man hath a Warranty to him his Heires and Assignes and he make a lease for life or a gift in Tail the lessee or donee shall not vouch as Assignee because the whole estate is out of the lessor or donor and by this means he shall take advantage of the Warranty But if a lease for life or a gift in Tail be made the remainder over in fee such a lessee or donee shall vouch as Assignee because the whole estate is out of the lessor and the particular estate and the remainder do in Judgment of Law to this purpose make but one estate 18 E. 4. 52. 10 E. 3. 58. 5 E. 3. 40. Accord H. 14. 1. in Com. Banc. If a man infeoff three with Warranty to them and their heirs and one of them release to the other two they shall vouch but if he had released to one of the other the warranty had been extinct for that part for he is an Assignee 40 E. 3. 14. 40 Ass 5. 33 H. 6. 4. 37 H. 8. Alienation c. 31. 8 H. 4. 8. If a man doth warrant land to two men and their heirs and the one make a feoffment in fee yet the other shall vouch for his moity 11 R. 2. Detin 46. 7 E. 3. 35. 46 E. 3 4. If a man at this day be infeoffed with warranty to him his heirs and assignes and he make a gift in Tail the remainder in fee the donee make a feoffment in fee that feoffee shall not vouch as Assignee but * he that cometh in in privity of estate If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or Tenant of the Land may rebutte and albeit no man shall vouch or have a Warrantia Cartae either as party heir or Assignee but in privity of estate yet any that is of another estate be it by Disseisin Abatement Intrusion Usurpation or otherwise shall rebut by force of the warranty as a thing annexed to the Land which sometimes was doubted in our Books 38 E. 3. 21. 26 E. 3. 56. l. 10. fo 96. b. Seymors Case 10 Ass 5. 35 Ass 9. 22 Ass 3. 988. 31 Ass 13. But herein note a diversity when he that rebutteth claimeth under the warranty and when he claimeth above the warranty for there he shall not rebut And therefore if Lands be given to two Brethren in fee simple with a warranty to the eldest and his heirs the eldest dyeth without issue the survivor albeit he be heir to him yet shall he neither vouch nor rebut nor have a Warrantia Cartae because his Title to the Land is by relation above the fall of the warranty and he cometh not under the estate of him to whom the warranty is made as the disseisor c. doth If a man make a gift in Tail at this day and warrant the land to him his heirs and assignes and after the donee make a feoffment and dyeth without issue the warranty is expired as to any Voucher or Rebutter for that the estate Taile whereunto it was knit is spent Otherwise it is if the gift and feoffment had been made before the Statute of Donis Cond for then both the donee and feoffee had a fee simple and so are our Books to be intended in this and the like cases Lib. 3. fo 63. Linc. Coll. case If A. be seised of Lands in fee and B. release unto him or confirmeth his estate in fee with warranty to him his heires and assignes All men agree this warranty to be good but some have holden That no warranty can be raised upon a bare Release or Confirmation without passing some estate or transmutation of possession 14 E. 3. garr 108. 12 H. 7. 1. But the Law as it appeareth
by Littleton himselfe is to the contrary and that both the party and as some doe hold his Assignee shall vouch but he that is vouched in that case must be present in Court and ready to enter into the warranty and to answer and the Tenant must shew forth the Deed of Release or Confirmation with warranty to the intent the Demandant may have an answer thereunto and either deny the Deed or avoid it for that at the time of the Confirmation made he to whom it was made had nothing in the land c. for otherwise the Demandant may counter-plead the Voucher by the Statute of W. 1 cap. 40. viz. that neither Vouchee nor any of his Ancestors had any seisin whereof he might make a feoffment And this is grounded upon the said Statute of W. 1. Sil neit son gar en present que lun voile gar de son gree maintenant enter en respons otherwise the Tenant must be driven to Warrantia Cartae 11 H. 4. 22. 10 E. 3. 52. 21 E. 3. 37. Vide Sect. 706. 738. 745. Vide 20 E. 1. Stat. ad vocat ad Warr. But a warranty of it selfe cannot enlarge an estate as if the lessor by Deed release to his lessee for life and warrant the land to the lessee and his heirs yet doth not this enlarge the estate 22 Hen. 6. 15. 2 Hen. 4. 13. 43 Ed. 3. 17. 43 Ass 42. 12 Ass 17. 12 Ed. 3. Tail 3. 22 Ed. 4. 16. b. 44 Ed. 3. 10. 44 Ass Bassingborns Ass If a man make a feoffment in fee with Warranty to him his heirs and assigns by Deed as it must be and the feoffee infeoff another by paroll the second feoffee shall vouch or have a Warrantia Cartae as Assignee albeit he hath no Deed of the Assignment l. 3. 63. If a man infeoff two their heirs and assigns and one of them make a feoffment in fee that feoffee shall not vouch as Assignee 29 Edw. 3. 70. 17 Edw. 2. Joynd in action 1. 11 Edw. 4. 8. If a man make a feoffment in fee to A. his heirs and assigns A. infeoffeth B. in fee who re-infeoffâ—th A. He or his assigns shall never vouch for A. cannot be his own Assignee But if B. had infeoffed the heir of A. he may vouch as Assignee for the heir of A. may be Assignee to A. in as much as he claimeth not as heir Sect. 734. fol. 386. a. The Heir shall never be bound by any expresse warranty but where the Ancestor was bound by the same warranty 31 Ed. 1. gar 83. Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita regis tantum A fortiori in case of Warranty which is in the realty Fleta lib. 2. cap. 55. Brit. fol. 65. b. 11 Hen. 6. 48. But a Warranty in Law may binde the Heir although it never bound the Ancestor and may be created by a last Will and Testament As if a man devise lands to A. for life or in Tail reserving a rent the devisee for life or in Tail shall take advantage of this warranty in Law albeit the Ancestor was not bound and shall binde his heirs also to Warranty although they be not named Also an expresse Warranty cannot be created without Deed and a Will in writing is no Deed and therefore an expresse Warranty cannot be created by Will 18 Ed. 3. 8. Sect. 736. fol. 386. b. Note a diversity the lien reall as the Warranty doth ever descend to the heir at the Common Law but the lien personall doth binde the speciall heirs as all the heirs in Gavelkinde and the heir on the part of the Mother vide Sect. 603 718 737. 11 E. 3. 7. 11 Hen. 7. 12. If two men make a feoffment in fee with warranty and the one dyeth the feoffee cannot vouch the survivor onely but the heir of him that is dead also but otherwise if two joyntly binde themselves in an Obligation and the one die the survivor only shall be charged 17 E. 3. Joynt 41. 16 H. 7. 13. 29 E. 3. 46. 12 H. 7. 3. 22 E. 3. 1. 17 E. 3. 8. 30 E. 3. 43. 19 H. 6. 55. l. 3. f. 14. Mat. Herberts Case Two brothers by demy venters the eldest releaseth with warranty to the disseisor of the Uncle and dyeth without issue the Uncle dyeth the warranty is removed and the younger brother may enter into the Land Sect. 737. Sect. 738. fol. 387. A warranty may be limited and a man may warrant lands as well for term of life or in Tail as in fee 38 Ed. 3. 14. 16 E. 3. Vouch. 87. If Tenant in fee simple that hath a warranty for life either by an expresse Warranty or by Dedi be impleaded and vouch he shall recover a fee simple in value albeit his warranty were but for term for life because the warranty extended in that case to the whole estate of the feoffee in fee simple but in the case that Littleton here putteth the Tenant for life shall recover in value but an estate for life because the warranty doth extend to that estate onely vide Sect. 733. 706. And here in this Section is implyed that a collaterall Warranty giveth no right but shall barre onely for life and after the party is restored to his action Also note that a Warranty may descend to the heirs of him that made it during the life of another Sect. 739. Si un home lessa ses terres a un aut aver tenant a luy a ses heires pur terme dauter vie le lessee mor. vivant oâ—luy a que vie c. un estranger enter en la terre l'heire le lessee luy poit ouster c. The heir of the lessee shall have the Land to prevent an occupant and so it is in case of an annuity or of any other thing that lieth in grant whereof there can be no occupant 77 E. 3. 48. 18 E. 3. 12. 11 H. 4. 42. 7 H. 4. 46. 8 H. 4 15. Dyer 8 Eliz. 253. 18 H. 8. 3. 27 H. 8. 21 H. 8. Estat Br. 10. 19 E. 3. Account 56. 33 Ass p. 17. 22 H. 6. 33. 39 E. 3. 37. vide Sect. 387. Sect. 740. Chattels as well reall as personall shall goe to the Executor or Administrator 11 E. 3. tit Ass 88. 11. Ass 21. 10 Eliz. Dyer 276. But if the Kings Tenant by Knights service in Capite be seised of a Manour whereunto an Advowson is appendant and the Church become void the Tenant dyeth and his heir within age the King shall present to the Church and not the Executor or Administrator but if the Land be holden of a common person in that case the Executor shall present and not the Guardian 24 E. 3. 26. F.N.B. 33. b. 34. a. If a Bishop hath a Ward fallen and dyeth the King shall not have the Ward nor
PRVDENS QVI PATIENS Juris prudentium eloquentissimus et Eloquentium Juris prudentissimus AN ABRIDGEMENT OF The Lord COKE'S COMMENTARY on LITTLETON Collected by an unknown Author yet by a late Edition pretended to be Sir Humphrey Davenports Kt. AND In this Second Impression purged from very many gross ERRORS committed in the said former Edition With a TABLE of the most remarkable things therein LONDON Printed for W. Lee D. Pakeman and G. Bedell 1651. To the READER Courteous Reader THis little Book was lately sent abroad with many grosse Errours as an Abridgement of the Lord Cokes Comment on Littleton under the Name of Sr Humphrey Davenport Kt long since deceased though indeed many very materiall things in the Lord Cokes Comment is not in the late Edition or Abridgement at all hinted or mentioned If thou art curious to understand the Law bee pleased to consult the large Volume which is an exact learned Work and curiously corrected and approved by all learned in the Common Laws but if thy leasure for the present will not permit thee to read that learned Work at large know that thou mayest for Twelve-pence have this Compendium and be welcome to the carefull Publishers hereof who desire thy benefit and the publike good W. Lee. D. Pakeman G. Bedell From our Shops in Fleetstreet Nov. 24. 1651. Munday The true portraiture of Iudg Littleton the famous English Lawyer CAP. I. De Feodo Simplici FEodum simplex idem est quod haereditas legitima vel pura Tenant in fee simp 1. He hath the estate in the land 2. He holdeth the land of some superior Lord. 3. He is to perform the services due and 4. Hee is thereunto bounden 5. By Doom and judgement Praedium domini regis est directum dominium cujus nullus Author est nisi Deus Subjectus habet utile dominium Bract. l. 1. c. 8 Fee ex feif i praedium beneficiarum Fee divided into 3 parts viz. simple or absolute conditional qualified or base Bract. 263. 207. Pl. Com. Walsing c. Di. 252 253. Fee signifies that the land belongs to us and our heirs and in this sense the King is said to be seised in fee. It is also taken as it is holden of another by service and that only belongeth to the subject Brit. 205. 207. Item dicitur feodum alio modo ejus qui alium feoffat quod quis tenet ab alio ut sit qui dicat talis tenet de me tot feoda per servitium militare and Fleta saith poterit unus tenere in feodo quoad servitia sicut dominus Capitalis non in dominico alius in feodo dominico non in servitio sicut libere tenens alicujus and therefore if a stranger claim a Seigniory and distrain and a vow for the service the Tenant may plead that the Tenancy is extra feodum c. Of him that is out of the surrendry or not holden of him that claimeth it but he cannot plead hors de son fee unlesse he take the Tenancy that is the State of the land upon him 2 Ass p. 4. 12 Ass 38. 12 E. 3. tit hors de son fee 28. i. b. ignoratis terminis ignoratur ars Si un annuitie soit grant al home à ses heirs ceo est fee simple personal Simplex idem est quod purum purum dicitur quod est merum solum sine additione Simplex donatio pura est ubi nulla addita est conditio sive modus simplex enim datur quod nullo additamento datur every fee is not legitimate for a disseisor abator intruder usurper c. hath a fee but not a lawful fee fo 2. a. Si un alien purchase treÌ„s c. Le roy sur office trove eux aura home attaint de felony and capacity de purchaser sinon pur le benefit del roy Dier 283. An Alien Merchant whose King is in league with ours may take a lease for years of a hous for habitation as incident to commercery and as necessary to his trade and tratfique but not for the benefit of his Executors or Administrators for if he die possessed of the lease or relinquish the Realm the King shall have it 5 Mar Br. tit-denizen 22. If a man commit felony and after purchase lands and is attaint the Lord of the fee shall have the Escheat 49 Ass p 2. 49 E. 3. 11. If any sole corporation or aggregate of many religiosus vel alius ecclesiastical or temporal purchase Lands in fee without licence they cannot retain for if the mesn Lords make default and do not enter c. the King shall have the Lands c. 7 E. 1. De Relig. per alienation in Mortmain les Seignors perdont lour escheats and in effect the service de chivaler per defence del royalm ward marriage relief c. Et pur ceo fut dit mortmain quod rend nul service Stat. delig 7 E. 1. per quod quae servitia ex hujusmodi feodis debentur quae ad defensionem regni ob initio provisa fuerunt indebite subtrahuntur capitales domini eschaet suas ammittunt M. Ch. c. 36. Praelatus ecclesiae suae conditionem meliorare potest deteriorare nequit Est enim eccle ejusdem conditionis quae fungitur vice minoris Sed nullum simile quatuor pedibus currit 2. b. Brac. l. 2. f. 12. 32 Si feme covert purchase Lands c. Le baron poit disagreer devest tout lestate but albeit her husband agreed thereunto after his death she may wave the same and so may her heires also if she her selfe agreed not c. After the decease of her husband The Queen is an exempt person by the common law from the King and may purchase and grant c. Vxor is a good name of purchase without a Christen name and so it is if a Christen name be added and mistaken Vâ—ile enim per inutile non vitidtur 1. H. 5. 8. Purchases are good in many cases by a known name or by a certain description of the person without either surname or name of Baptisme as uxor I S or primogenite filio I.S. or rect hered I. S. But regularly in writs the demandant or plaintiff is to be named by his Christen name surname unlesse it be the case of some corporations or bodis politique 3. a. 8. E 3. 437. qui ex damnato coitu nascuntur inter liberos non computentur Bastardus est quasi nullius filius A man makes a Lease for life to B. the remainder to the eldest issue male to be begotten of the body of Jane S. whether the same issue be legitimate or illegitimate B. hath issue a bastard on the body of I. S. this Son or issue shall not take the remainder because in Law he is not his issue M. 38. 39. el. in bre de err A Bastard may purchase by his reputed name to him and his heires
him and his heirs 1. By Feoffment 2 By Grant 3. By Fine which is a Feoffment of Record 4. By common recovery in nature of a Feoffment of recovery 5. By Exchange 6. By Release to a particular Tenant 7. By confirmation c. which are in nature of Grants c. 9. By bargain and sale by Deed c. Ordained by Statute 10. By devise by custome of some particular place and by Will in Writing generally by authority of Parliament 27 H. 8. ca. 16. 32 H. 8. ca. 2. 34 H. 8. cap. 5. If a disseisin abatement or intrusion be made to the use of another if cesty que use agreeth thereunto in pays by this bare agreement he gaineth a Fee Simple without any livery of seisin c. Sect. 2. Linea recta semper praefertur transversali Proximus excludit propinquum propinquus remotū remotus remotiorem fol. 10. b. Proximum Sumitur duplici sc Jure propinquitatis and he that is thus next c. is mediately inheritable Jure representationis and so one is immediately inheritable and accounted in Law next of bloud A Lease for life is made to A. the remainder to his next of bloud in this case he that is next of bloud and capable by purchase shall have the remainder though he be not legally next to take as heir by discent note the diversity Sect. 3. Maxime so called quia maxima est ejus dignitas certissima autoritas atque quod maximè omnibus probetur Pl. com 27 Lineal ascent is prohibited by the law but not Collateral c. fo 11. a. Littletons proofs and arguments drawn from the common law are first from the maxims rules intendment and reason of the common law 2. Ab autoritate pronūciatis 3. A rescriptis valet argumentum 4. From the form of good pleading 5. From the right entry of judgments 6. A praecedentibus approbatis usu 7. A non usu 8. Ab artificialibus argumentis consequentibus conclusionibus 9. A communi opinione jurisprudentium 10. Ab inconvenienti 11. A divisione vel ab enumeratione partium 12. A Majore ad minus à minore ad majus à simili à pari 13. Ab impossibili 14. A fine 15. Ab utili vel inutili 16. Ex absurdo 17. A natura ordine naturae 18. Ab ordine religionis 19. A communi praesumptione 20. A lectionibus jurisprudentium From Statutes his Arguments and proofs are drawn 1. From the rehearsal or preamble of the Statute 2. By the body of the law diversly interpreted sometimes by other parts of the same statute which is benedicta expositio ex visceribus causae Sometime by reason of the common Law But ever the general words are to be intended of a lawful act and such interpretation must ever be made of all statutes that the innocent may not be damnified c. fol. 11. b. There be divers laws in England As first lex Coronae 2. Lex consuetudo Parliamenti 3. Lex naturae 4. Lex communis Angliae 5. Statute Law 6. Consuetudines 7. Jus belli in republica maximè conservanda sunt jura belli 8. Ecclesiastical or Canon Law in Courts in certain cases 9. Civil Law in certain cases only in Courts Ecclesiastical but in the Courts of the Constable and Marshal and of the Admiralty 10. Lex Forestae 11. The Law of Marque or Reprisal 12. Lex Mercatoria 13. The Laws and Customs of the Isles of Jersey Gernsey and Man 14. The Law and priviledge of the Stannery 15. The Laws of the East West and middle Marches which are now abrogated A man that claimeth as heir in fee simple to any man by discent must make himself heir to him that was last seised of the actual freehold and inheritance where the unckle cannot get an actual possession by entry or otherwise there the Father cannot inherit c. Warranties shall descend to him that is heir at the common law Fol. 12. a. And a warranty shall not go with Tenements whereunto it is annexed to any special heir but to the heir at the common law Sect. 4. None shall inherit any lands as heir but only the bloud of the first purchaser Plow 447. refert à quo fiat perquisitum Fleta l. 6. c. 1. 2. Bract. l. 2. fo 65. 67. Multa transeunt cū versitate quae par se non transeunt vid. libr. fo 12. b. 5 E. 2. Avowry 207. Whensoever lands do descend from the part of the Mother the heirs of the part of the Father shall never inherit è converso 39 E. 3. 29. fol. 13. a. Escheat i.e. cadere excidere vel accidere quod accidit duobus modis aut perfectū sanguinis aut per delictū tenentis atque illud est Per judicium 〈◊〉 modis aut quia suspensus per collū aut quia abjuravit regnū aut quia utlegatus In an appeal of death c. hanging the Process the defendant conveyeth away the land after is outlawed the conveiance is good shall defeat the Lord of his escheat but otherwise is it if a man be indicted of felony c. for in the case of Appeal the Writ containeth no time when the felony was done and therefore an escheat can relate but to the outlawry pronounced but the indictment containeth the Time when the Felony was committed and therefore the escheat upon the outlawry shall relate to that time If lands holden of I. S. be given to a Dean and Chapter Major and Commonalty and to Their successors c. And after such body politick or incorporat is dissolved the donor shall have again the Land for that the cause of the gift or grant faileth and not the Lord by Escheat But no such condition is annexed to the estate in see simple vested in any man in his natural capacity but in case where the donor or feoffor reserveth to him a tenure and then the law doth imply a condition in law by way of escheat fol. 13. b. Sect. 5. Descent is a means whereby one doth derive him title to certain lands as heir to some of his Ancestors Quod prius est dignius est qui prior est tempore potior est jure Sect. 6. Nul aūa trē de fee simp per discent come heir c. Si non que il soit heir dentier sanke The half bloud is no bloud inheritable by descent being not compleat and perfect Fol. 14. a. Sect. 8. Lands c. shall descend to him that can make himself heir to him that was last actually seised of the Freehold of the land c. Fol. 15. a. Whether the seisin of a rent reserv'd upon a seise for life be such an actual seisin of the land in the eldest son as the sister in a writ of right may make her self heir of this land to her brother admitting there be son and daughter by one venter and a son by another venter Vid. lib. Qu. 7 H.
solemnized for that before marriage the woman is not intituled to have dower certainty is the mother of quiet and repose Fol. 34. b. The Law hath provided quod vidua post mortem mariti sui non det aliquid pro dote sua maneat in Capitali messuagio mariti sui per 40. dies post obitum mariti sui infra quos dies assignetur ei dos sua nisi prius ei assignata fuerit c. habeat rationabile estoverium suum interim in Communi yet because there was no penalty c. inflicted the Tenant of the land may drive her to sue for her Dower Mag. Chart. ca. 7. If the heir c. put her out within the 40 days c. She may have her Writ de quarentina habenda A jointure made in satisfaction of Dower is now the furest way c. fol. 34. b. Wheresoever the Writ demands Land Rent c. In certain the demandant after judgement may enter or distrein before any seisin delivered to him by the Sheriff upon a Writ of habere facias seisinam But in Dower c. the demandant cannot enter c. until execution sued for the Writ demandeth nothing in certain Assignment of Dower must either must be by the Sheriff by the Kings writ or else by the heir or other Tenant of Land by consent and agreement between them If the husband make several feoffments of several parcels and dieth and one Feoffee assign Dower to the wife of parcel of Land in satisfaction c. The other Feoffees shall take no benefit of this assignment because they are strangers thereunto and cannot plead the same But in that case if the husband dieth seised of other lands in see simple c. And his heir endoweth the wife of certain of those lands in full satisfaction c. This assignment is good and the several Feoffees shall take advantage of it And therefore if the wife bring a writ of dower against any of them they may vouch the heir c. So as there is a privity in this respect between the heir and the feoffees and by this means the same assignment may be pleaded by the heir that made it 33 Ed. 3. tit Judgm 254 c. The assignment must be certain and absolute and by such as have a freehold or against whom a writ of dower doth lie c. fol. 35. a. Vide lib. There needeth neither livery of seisin nor writing to any assignment of dower becaus it is due of common right Assignment must be of some part of the land or of a rent c. issuing out of the same Dier 91. Sect. 40. Tenant for life of a carue of land the reversion to the father in fee the son and heir apparent endoweth his wife c. Ex assensu patris Tenant for life dieth the husband dieth this is no good endowment c. because the father at the time of the assent had but a reversion expectant upon a freehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet Fo. 35. a. If the heir apparent be within age yet the endowment ex assensu patris is good but otherwise it is of dower ad ostiū ecclesiae 2 H. 3. Dower 199. Fo. 35. b. Ten things are necessarily incident to a deed viz. First Writing 2. In Parchment or Paper 3. A person able to contract 4. By a sufficient name 5. A person able to be contracted with 6. By a sufficient name 7. A thing to be contracted for 8. Apt words required by Law 9. Sealing 10. Delivery Tradition of a deed only to the party to whom it is made is sufficient and then when words are contrary to the Act which is the delivery the words are of none effect non quod dictum est sed quod factum est inspicitur But it may be delivered to a stranger as an escrow c. Because the bare Act of delivery to him without words worketh nothing fol. 36. a. H. 12. R. in C.B. Dier 95. Cartarum alia regia alia privatorum regiarum alia privata alia communis alia universitatis Privatorum alia de puro Feoffamento simplici alia de Feoff conditionali sive conventionali alia de recognitione pura vel conditionali alia de quiete clamantia alia de confirmatione c. Verba intentioni non è contra debent inservire Carta non est nisi vestimentum donationis sive orationis Fleta l. 6. ca. 28. Nemo tenetur armare ad versarium suum contra se Scriptum est instrumentum ad instruendum quod mens vult Carta est legatus mentis Benignae sunt faciendae interpretationes cartarum propter simplicitatem laicorum ut res magis valeat quam pereat Bract. l. 2. fo 94 c. Nihil tam convenias est naturali aequitati quam voluntatem domini volentis rem suam in alium transferre ratam habere Plow Com. fo 161. b. Re verbis scripto consensu traditione Junctura vestes sumere pacta solent Pl. Co. 161. Verba cartarum fortius accipiuntur contra proferentem Generale dictum generaliter est intelligendum Verba debent intelligi secundum subictam materiam Carta de non ente non valet Sect. 41. A jointure was no bar of Dower at the Common Law For a right or title that one hath to a Freehold cannot be barred by acceptance of collateral satisfaction But now by the statute of 27 H. 8. If a jointure be made to the wife according to the purvieu of that statute it is a bar of her Dower Six things are required to a perfect Jointure 1. It is to take effect for her life in possession or profit presently after the decease of her husband 2. That it be for term of her own life or greater estate 3. It must be made to her self and to no other for her 4. It must be made in satisfaction of her whole dower and not of part c. 5. It must bee either expressed or averred to be in satisfaction c. 6. It may be made either before or after marriage If the jointure be made before marriage the wife cannot wave it and claim her dower at the Common Law but if it be made after marriage she may wave the same c. Fo. 36. b. Vide c. Dier 358. The wife shall not be barred of her jointure albeit her husband commit Treason or Felony as she shall be of her Dower ad ostium Eccle. c. By the Common Law But now at this day by the statute of the 1 Ed. 6. c. 2. and 5 Ed. 6. c. 11. The wife of a man attainted of Felony shall not lose her dower A jointure made to the wife under or above the age of nine years is good and so if Dower ad ostium ecclesiae c. being made by assent c.
Consensus tollit errorem fol. 37. a. Sect. 43. Lou le certainty appiert queux terres c. Feme avera per la Dower la le feme entra apres la mort sa baron sans assignment de nulluy Sect. 45. The wife shall not be endowed of lands c. which her husband holdeth jointly with another at the time of c. Of his death for the jointenant which surviveth claimeth the land by the feoffment and by the survivorship which is above the Title of Dower c. But Tenants in common have several freeholds and inheritances and their moities shall descend to their several heirs and therefore their wives shall be endowed fol. 37. b. Sect. 46. Lissue en le Tail poit enter sur la possession la feme endowe ad ost eccles apres la mort sa baron The husband is seised c. being within age he cannot by a voluntary Act bind himselfe but otherwise is it where he doth an act whereunto he is compelled by Law Fo. 38. a. And so an Infant cannot endow his wife aed osti eccl but he may endow her ex Ass patris because the Father is sole seised c. And the Son hath nothing c. Sect. 48. Guardian in chivalry c. Is not possessed of the Land untill he doth enter because it is permanent of the wardship of the body he is possessed before seisure because it is transitory After the guardian hath entred c. A Writ of Dower lieth against him and not against the heire who is Tenant of the Freehold because the Law hath trusted him to plead for the heire within age that is in his custody and also for his own particular interest c. Fo. 38. b. Vide quaere 44. E. 3. 13. 4. H. 6. 11. If the heire before the gardein enter endow the wife of more than she ought and the gardein assigne over his Estate his Assignee shall have no Writ of Admesurement because it was a thing in action But the gardein himselfe shall have a Writ c. Stat. West 2. ca. 7. And so shall the heire have a Writ c. At full age and some have said that in that case he may have it within age Fo. 39. a Vide c. F.N.B. 149. Judicium quasi juris dictum the very voyce of Law and right and therefore judicium semper pro veritate accipitur In every judgement there ought to be three persons actor reus judex Fo. 39. a. The common Law giveth this priviledge to the Land holden by Knights service viz. That it shall not be dismembred but the whole Dower taken of the Lands holden in Socage for that the Knights service is for the defence of the Realm which is pro bono publico and therefore to be favoured Sect. 49. Sect. 50. Lou le judgment est fait en Court le roy ou en aut Court c. le feme poit perender ses vicines en lour presence endow luy inper metes bounds de la pluis beale c. que el ad come gardein en socage cei eÌ„ solvaÌ„on del Gardein en Chivelry durant le nonage lenfant Lect. 52. If a man taketh a wife seised of Lands c. In Fee hath issue and after the wife is attainted of Felony so as the issâ—â— cannot inherit to her yet he shall be Tenant by the Curtesie in respect of the issue which he had before the Felony and which by possibility might then have inherited But if the wife had been attainted of Felony before the issue albeit he hath issue afterwards he shall not be Tenant c. Fo. 40. a. Except the wife be actually seised the heire shall not make himselfe heire to the wife and this is the reason that a man shall not be Tenant by the Curtesie of a seisin in Law Lib. 8 fo 34. in Paines Case Sect. 53. Si Teniments sont dones a un home a les heires quae il engendera de corps sa feme en tiel case la feme nad riens c. Vnc'si le baron devie sans issue me la feme ser endowe per ceo que lissue que el per possibility puissoit auÌ„ per. me le baron puit enheriter A man seised of land in generall Taile taketh wife and after is attainted of Felony before the Statute of 1. E. 6. The issue should have inherited and yet the wife should not have bin endowed For the Statute of West 2. ca. 1. relieveth the issue in taile but not the wife in that case But at this day if the husband be attaint of Felony the wife shall be endowed and yet the issue shall not inherit the lands which the Father had in Fee simple If the wife elope from her husband c. she shall be barred of her dower and yet the issue shall inherit Sect. 55. The Law hath inflicted five punishments upon him that is attainted of Treason or Felony 1. He shall lose his life by an infamous death of hanging c. 2. His wife shall lose her Dower 3. His bloud is corrupted his children made ignoble if c. And cannot be heirs to him 4. He shall forfeit all his Lands and Tenements 5. All his goods and Chattels But the wife of a man attaint of Felony shall be endowed by force of the statute in that case provided If the heir be vouched by the Tenant in the Writ of Dower in the gard of the gardein The gardein shall plead it as well when he comes in as vouchee as when he is Tenant Also if the Lands holden in socage be not equall to the lands holden in chivalry some say that the defendant in the Writ of dower must have assets in her hands to the value of her Dower so as he shall not be partly indower against the gardein and partly retain in her own hands 18. E. 3. 4. But by 25. E. 3. 52. b. auterment est que est melior opinion c. CHAP. VI. Tenant a Terme de vie Sect. 56. IF Tenant per terme dauter vie dyeth living cesty que vie he that first entreth shall hold the land during that other mans life and he is in Law called an Occupant because his title is by his first occupation And so if Tenant for his own life grant over his Estate to another if the grantee dyeth there shall be an Occupant so it is if Tenant by the Curtesie or Tenant in Dower grant over his Estate or hers c. Fo. 41. a. l. 6. 37. nullum tempus occurrit regi in this case There can be no occupant of any thing that lyeth in grant and that cannot passe without deed because every Occupant must claime by a que estate averr the life of Ce ' que vie It were good to prevent the incertainty of the estate of the Occup to add these words to have and to hold to him and to his heirs during the life of Ce ' que
vie and yet the Lessee may assigne it to whom he will or if he hath already an Estate for another mans life without these words then it were good for him to assign his Estate to divers men and their heirs during the life of Ce ' que vie Lit. 167. Dier 253. If a Lease be made to A c. For terme of his owne life and the lives of B. and C the lessee hath but one freehold which hath this limitation during his own life and the lives of two others and here note a diversity between several estates in severall degrees and one Estate with several limitations for in the first an Estate for a mans owne life is higher then for another mans life but in the second it is not l. 5. Rosses case If Tenant for life infeoffe him in the remainder for life this is a surrender and no forfeiture and albeit an Estate for term of a mans own life be but one Freehold yet may severall Freeholds in certain Cases be derived out of the same Vide libr. A. and B. joyntenants A. for life and B. in Fee joyne in a Lease for life A. hath a reversion and shall joyn in an action of Waste Tenant for life and he in the reversion joyne in a Lease for life it is said that they shall joyn in an action of wast and that the lessee for life shall recover the place wasted and he in reversion dammages Fo. 42. a F.N.B. 59. F. 13. H. 7. 15. If a man make a Lease of a Mannor worth 20. l. per annum to another until 100 l. be paid in this case because the annuall profits of the Mannor are incertain he hath an estate for life if livery be made determinable upon the levying of a 100 l. Fol. 42. a. And yet in some Cases a man shall have an incertaine interest in Lands c. and yet neither an Estate for life for years or at will As if a man by his will in writing devise his lands to his executors for payment of debts and untill his debts be paid in this Case the executors have but a chattell and an incertain interest in the land untill his debts be paid for if they should have it for their lives then by their death their estate should cease and the debts unpaid but being a Chattell it shall go to the executors of executors c. And so note a diversity between a devise and a conveiance at the common Law in his life time l. 8. Mannings The Law which abhorreth injury and wrong will never so construe any Act c. as it shall work a wrong whensoever the words of a Deed or of the parties without Deed may have a double intendment and the one standeth with Law and Right and the other is wrongfull and against Law the intendment that standeth with Law shall be taken Fo. 42. b. The Law more respecteth a lesser estate by right than a larger estate by wrong Tenant in taile made a Lease to another for terme of life generally and after released to the Lessâ—e and his heires albeit between the Tenant in Taile and him a Fee simple passed yet after the death of the Lessor the entry of the issue in Tail was lawfull which could not be if it had been a Lease for the life of the Lessee foâ— then by the release it had been a discontinuance executed Sect. 57. Tenant per vie ad franktenement null auter de meind Estate Many that have capacity to take have no ability to infeoffe c. As Aliens borne Tratiors Felons c. Ideots madmen a feme covert an infant a man by dures c. For the feoffement c. of these may be avoided Brit. fo 88. In judgment of Law the King as King cannot be said to be a minor for when the Royall body politique of the King doth meet with the naturall capacity in one person the whole body shall have the quality of the Royall politique c. omne majus trabit ad se quod est minus A Licence for alienation grew by the Statute of the 20. H. 3. 20. Ass pl. 17. by Skipwith vide lib. By the Statute 1 E. 3. ca. 12. 34. Ed. 3. cap. 15. Although the Kings Tenant in chiefe c. do alien all or any part without Licence yet is there not any forfeiture of the same but a reasonable fine therefore to be paid The Statute of 18. E. 1. De quia Emptor c. hath in effect as to the common persons taken away the Statute of Mag. Charta cap. 32. for thereby it is provided Quod liceat unicuique libero homini trans suas c. Seu partem inde ad voluntatem suam vendere ita quod Feoffatus teneat c. de capitali domino Note first that this word liceat proveth that the Tenant could not or at least was in danger to alien parcell of his Tenancy c. upon the said Act of Mag. Charta 2. That upon the Feoffment of the whole the Tenant shall hold of the chief Lord. 3. That the Tenant might enfeoffe one part to hold pro particula of the chief Lord. But this Act the King being not named doth not take away the Kings Fine due to him by the Statute of Mag. Charta Tenant by Statute Merch. Statute Staple or Elegit are said to hold land ut liberum Tenementum untill their debt be paid and yet they have no Freehold but a Chattel c. But ut is similitudinary because they shall by the Statutes have an Ass as the Tenant of the Freehold shall have and yet nullum simile est idem 28. Ass p. 7. w. 2. c. 18. St. Merc. 13. E. 1. 27. E. 3. c. 9. 23. H. 8. c. 6. F.N.B. 178. CHAP. VII Tenant for Term of yeers Sect. 58. THere be three kinds of persons who at this day may make leases for three lives or XXI yeers c. which could not so doe when Littleton wrote viz. 1. Any person seised of an estate tail in his own right 2. Any person seised of an estate in Fee simple in the right of his Church 3. Any husband and wife seised of any estate of inheritance in Fee simple or Fee taile in the right of his wife or joyntly with his wife before the coverture or after And these are made good by the Statute of 32. H. 8. But the Statute of 1. Eliz. 13. El. 18. El. and 1. Reg. Jac. are disabling Vide libr. c. l. 5. fo 6. If two severall Tenants of severall Lands joyne in a lease for years by Deed indenture these be severall leases and severall confirmations of each of them from whom no interest passeth and work not by way of conclusion in any sort because severall interests passe from them Fol. 45. a. Vide quaere Whensoever any interest passeth from the party there can be no estoppell against him H. 44. El. R. 1459. ca. 8. Leases for lives or years are of
three natures some be voidable by entry and some void without entry Vide c. 32. H. 8. c. 28. l. 3. 59. 60. 33. H. 8. Dy. Entry Terminus in Law doth not only signifie the limits and limitation of time but also the estate and interest that passeth for that time As if a man make a Lease for 21. years and after make a Lease to begin à Fine expiratione praedicti termini c. and after the Lease first made is surrendred the second Lease shall begin presently but if it had been to begin post finem expirationem praedict 21 ann c. the second Lease should not begin till after the first Terme c. be ended by effluxion of time Fol. 45. l. 1. 154. l. 8. 145. Pl. c. 198. Terminus annorum certus esse debet determinatus Id certum est quod certum reddi potest 14. H 8. 14. The years must be certain when the Lease is to take effect in interest or possession l. 1. 155. 156. l. 6. 34. 35. If the Parson of D. make a Lease of his glebe for three yeares and so from three years to three years so long as he shall be Parson this is a good Lease for six years if he continue Parson so long first for three years and after that for three years and for the rest uncertain Terminus vitae est incertus c. And therefore if a man maketh a Lease for 21 years if I.S. live so long this is a good Lease and yet certain in incertainty 1. Pl. c. 273. Any estate for life being an estate of Freehold against whom a Praec quod redd doth lye is an higher and greater estate then a Lease for yeares Fo. 45. b. Albeit a Lease for years must have a certain beginning and a certaine end yet the continuance thereof may be incertain for the same may cease and revive again in many Cases Vide c. Fo. 46. a. 6. E. 6. Dy. 72. accord If a feme covert leavie a fine alone If the husband enter and avoyd the fine and die the whole estate is so avoyded as it shall not bind the wife after his death If a woman be endowed of an Advowson which is appropriated and shee present and her Incumbent is admitted instituted and inducted albeit the Incumbent die yet is the appropriation wholly dissolved because the Incumbent which came in by presentation had the whole state in him 2. E. 3. 8. per Scroop A release made to Tenant for years is not good to him to increase his estate before entry but he may release the rent reserved before entry in respect of the privity Neither can the Lessor grant away the reversion by the name of the reversion before entry But the Lessee before entry hath an interest interesse termini grantable to another Fo. 46. b. Vide c. D. 454. 567. If a lease be made to a baron and feme for term of their lives the remainder to the executors of the survivor of them the husband grant away this terme and dieth this shall not bar the wife for that the wife had but a possibility and no interest H. 17. El. B. R. If a lease be made by Indenture bearing date 26. Maii c. To have and to hold from the making hereof or from henceforth it shall begin on the day in which it is delivered c. But if it be à die confectionis then it shall begin the next day after the delivery l. 2. 5. Pl. Com. 148. l. 5. Fo. 1. Dy. 286. 307. l. 5. f. 1. A rent must be reserved out of lands or tenements whereunto the Lessor may have recourse to distreine and therefore a rent cannot be reserved by any common person out of any incorporeall Inheritance as Advowson Common Offices Corrodie Malcture of a Mill Tythes Fairs Markets Liberties Priviledges Franchises c. But if the Lease be made of them by Deed for years it may be good by way of contract to have an Action of Debt but distraine the Lessor cannot Neither shall it passe with the grant of the reversion for that it is no rent incident to the reversion But if any rent be reserved in such case upon a Lease for life it is voyd for that no action of debt doth lie Fo. 47. a. l. 7. 23. l. 10. 59. 30. Ass p. 5. Note a diversity betweene an exception which is ever part of the thing granted and of a thing in esse and a reservation which is alwayes of a thing not in esse but newly created or reserved out of the Land or Tenement demised Ex verbo generali aliquid accipitur Vide c. Valuable things shall not be distrained for rent for benefit and maintenance of Trades which by consequent are for the Common-wealth as cloth in a Taylors shop c. 7. H. 7. 1. b. Nothing shall be distresse for rent that cannot be rendred againe in as good plight c. but for damage feasant it is otherwise Vide c. 11. H. 7. 14. a. 21. H. 7. 39. b. 2. H. 4. 15. For rent due the last day of the Term the lessor cannot distrain because the Term is ended Fo. 47. b. Note a diversity between a rent reserved upon a Lease for yeares reserving a yearly rent the lessor may have severall actions of debt for every yeares rent But upon a bond or contract for payment of severall summes no action of debt lyeth till the last day be past In every contract there must be quid pro quo for contractus est quasi actus contra actum Vide c. l. 2. 15. a. If the Lease be made by Deed Poll the Lessee is not estopped to say that the lessor had nothing at the time of the Lease made but if it be by Deed indented then are both parties concluded c. 20. E. 4. 10. 2. E. 2. 253. Si hom pt Lease de son tr dem per fet indent lestop ne continue apres le terme expire M. 31. 32. El. in 8. Fo. 4◠a. Sect. 59. Il ne besoigne asc ' livery de seisin desire ft. allessee per ans mes il poit enter quant il voit per force de m. le Leas mes lou franktenement passa auterment est A livery in Deed may be done either by a solemne act and words as by delivery of the ring or haspe of the door c. And the Feoffor saying here I deliver you seisin and possession of this house in the name of all the Lands and Tenements contained in this Deed according to the form and effect of this Deed. Or by words without any ceremony or act as the Feoffor being at the house door or within the house saying here I deliver you seisin c. in the name of seisin possession of all the Lands c. contained in this Deed. For if words may amount to a livery within the view much more it shall upon the land Fo. 48. a. 4. 41. E.
case If Lands be demised for life the remainder to the right heirs of I. S. and of I. N. I. S. hath issue and dyeth and after I. N. hath issue and dyeth the issues are not joyntenants for the one moity vested at one time and the other at another time 24 E. 3. 29. And yet in some cases there may be joyntenants and yet the estate may vest in them at severall times As if a man make a Feoffment in Fee to the use of himselfe and of such wife as he should afterwards marry for termes of their lives and after he taketh wife c. 17 El. Dyer Brents c. CHAP. IV. Of Tenants in Common Sect. 292. JOyntenants have the Lands by one joynt title and in one right but Tenants in Common by several titles or by one title and by severall rights which is the reason that joyntenants have one joynt freehold and Tenants in Com. have severall freeholds only this property is common to them both viz. that their occupation is individed and neither of them knoweth his part in severall Vide Sect. 296. Addition probat minoritatem If Lands be given to two Bishops or to two Abbots to have and to hold to them two and their successors in respect of their severall capacities albeit the words be joynt yet the Law doth adjudge them to be severally seised Vide Sect. 200. 7 H. 7. 9. b. 16 H. 7. 15. b. 10 E. 4. 16. b. Fo. 189. b. 190. a. If a Corodie be granted to two men and their heirs because the Corodie is incertain and cannot be severed it shall amount to a severall grant to each of them one Corodie for the persons be severall and the Corody is personall Sect. 297. If Lands be given to J. Bishop of N. and and his successors and to J. Overl Doctor of D. and his heirs being one and the same person he is Tenant in Common with himself 13 Hen. 8. 14. But our Authors rules doe not hold in Chattels realls or personalls for if a Lease for years be made or a ward granted to an Abbot and a secular man or to a Bishop and secular man or if goods be granted to them they are Joyntenants because they take not in their politique capacity An expresse estate controlls an implyed estate Si home sei de cert terre infeoffe un aut del moitie de m. la terre c. Such a feoffment is good by parol without writing and such an uncertain estate shall passe by livery 21 E. 4. 22. b. 10 Eliz. Dyer 28. 33 H. 6. 5. a. vide Sect. 299. fol. 190. b. quaere c. Sect. 301. Expressio eorum quae tacitè insunt nihil operatur In case of Leases for life it is more beneficiall for the Lessor to have the joynture severed then to have it continue Vbi eadem ratio ibi idem jus esse debet for ratio est anima legis ratio potest allegari deficiente lege But it must be ratio vera legalis non apparens Arg. à simili is good in Law sed similitudo legalis est casuum diversor in t se collatorum similis ratio Quod in uno similium valet valebit in altero Dissimilium dissimilis est ratio Sect. 302. Two joyntenants si lun de cux lessa ceo que a luy affiert a un aut pur terme de sa vie per tiel Lease le franktenement ē sever de le Joynture per cest le reason le reversion que ē dependant sur in le franktenement ē sever del joynture si lessor mor. vivant lessee pur vie le reversion discenda al heire del lessor nemy devienda a lauter joynt joyntenant per le survivor Vn franktenement ne poit per nature de joynture estre anex a un reversion c. fo 191. b. vide c. If two joyntenants be of a Lease for 21 years and the one letteth his part for certain years part of the terme the joynture is severed and survivor holdeth not place for a terme for a small number of years is as high an interest as for many more years Hil. 18 Eliz. Com. Banco If two joyntenants make a Lease for life reserving a rent to one of them the rent shall enure to them both because the reversion remains in joynture unlesse the reservation be by Deed indenture and then he onely to whom it is reserved shall have it fol. 192. a. quae 27 Hen. 8. 16. a. 7 E. 4. 25. vide lib. c. And so it is if such a Lessee for life should surrender to one of them it shall inure to them both for that they have a joynt reversion But if the Lessee grant his estate to one of them no part of it shall inure to his companion because for the moity belonging to his companion it is in esse in him to whom the grant is made the reversion to the other in fee 5 E. 4. 4. 38 H. 6. 24. b. 2 Joyntenants font lease pur vie remainder a son comp in fee ceo ē bon remainder de son moity al on comp Sect. 303. If the Joynture be severed at the time of the death of him that first deceased the benefit of survivor is destroyed for ever vide S. 291. Two joyntenants in fee and the one letteth his part to another for the life of the lessor and the lessor dyeth some say that his part shall survive c. for by his death the lease was determined and others hold the contrary for that at the time of his death the joynture was severed for so long as he lived the lease continued And secondly that notwithstanding the act of any one of the joyntenants there must be equall benefit of survivor as to the freehold But here if the other joyntenant had first died there had been no benefit of survivor to the lessor without question fol. 194. Vide nota Sect. 304 305. If two joyntenants be of 20 acres and the one make a feoffment of his part in 18 acres the other cannot release his entire part but only in two acres for that the joynture is severed for the residue Nota upon a Release that creates or inlargeth an estate or inures by way of Mitter le estate a Rent may be reserved but not upon a release that inureth by way of Mitter le droit or which inures by way of Extinguishment fol. 193. b. * Of a release inuring by way of extinguishment made to the husband the wife shall take benefit or to the wife the husband shall take benefit But otherwise it is of a Release which inures by way of Mitter l'estate * 10 E. 4. 3. b. 21 H. 6. 8. b. * En ascun case un release vera de mitter tout le drent que il que fert le release ad celuy a que le release ē fait Vide S. 306. f. 194. a. An usurpation shall work a Remitter to
upon condition c. and dye his executors or administrators shall enter for the condition broken for they are privy in right and represent the person of the dead Vide 21 H. 7. 18. a. fo 214. b. c. If cesty que use had made a Lease for yeares c. upon condition the Feoffes should not enter for the condition broken for they are privy in estate but not privy in bloud 27 H. 8. 1. 4. Diversity is in case of a Lease for years where the condition is that the Lease shall cease or be void and where the condition is that the lessor shall reenter for there the grantee as Littleton saith shall never take benefit of the condition And note that where the estate or Lease is ipso facto void by the condition or limitation no acceptance of the rent after can make it to have a continuance otherwise it is of an estate or Lease voidable by entry Pl. 136. Brownings case 5. Diversity between condition in Deed and condition in Law As if a man make a Lease for life there is a condition in Law annexed unto it that if the lessee doth make a greater estate c. that then the lessor may enter of this and the like condition in law which doe give an entry to the Lessor the lessor himselfe and his heires shall not only take benefit of it but also his Assignee and the Lord by escheat every one for the condition in law broken in their own time 6. Diversity is between the judgement of the common Law and the Law at this day by force of the Statute of 32. H. 8. ca. 34. for by the Common Law no grantee or Assignee of a reversion could take advantage of a re-entry by force of a condition But now by the said Statute it is otherwise By which act it is provided that as well every person which shall have any grant of the King of any reversion c. of any Lands c. which pertained to Monasteries c. as also all other persons being Grantees or Assignees c. to or by any other person or persons and their heires executors successors and Assignees shall have like advantage against the Lessees c. by entry for non-payment of the rent or for doing of waste or other forfeiture c. as the said lessors or grantors themselves ought or might have had 26 H. 6. tit entreconge 49. Upon this act divers judgments c. have been given which are necessary to be known 1. That the said Statute is generall that the grantee of the reversion of every common person as well as of the King shall take advantage of condition Pl. 175. 76. Hill and Granges case M. 10. and 11 Eliz. 180. Dyer 2. That the Statute doth extend to grants made by the successors of the King albeit the King be only named in the Act. 3. That where the Statute speaketh of Lessees that the same doth not extend to gifts in Taile 14. El. Dyer 309. Winters case 4. That where the Statute speakes of Grantees and Assignees of the reversion that an Assignee of part of the estate of the reversion may take advantage of the condition As if Lessees for life be c. and the reversion is granted for life c. So if Lessee for years be c. and the reversion c. the grantee for years shall take benefit of the condition in respect of this word execution in the Act. Pl. 69. Kidwellies case 7 E. 3. 54. and Vide Dyer 309. 5. That a grantee of part of the reversion shall not take advantage c. As if the Lease be of three Acres reserving a rens upon condition and the reversion is granted of two acres the rent shall be apportioned by the act of the parties but the condition is destroyed for that it is entire and against common right lib. 5. fol. 54. Knights Case Winters Case c. 6. That in the Kings case the condition c. is not destroyed c. 7. By act in Law a condition may be apportioned in the case of a common person as if a Lease for years be made of two acres one Burrough English and the other at the common law and the lessor having issue two sons dieth each of them shall enter for the condition broken and likewise a condition shall be apportioned by the act and wrong of the Lessee as in the Chap. of Rents l. 4. f. 120. Dumpers Case 8. If a Lease for life be made reserving a rent upon condition c. the Lessor levies a fine of the reversion he is Grantee or Assignee of the reversion but without atturnment he shall not take advantage of the condition P. 20. El. in Com. Ba. Dukes Case lib. 5. 112. b. Mallories Case 9. Diversity between a condition that is compulsory and a power of a revocation that is voluntary for a man that hath a power of revocation may by his own act extinguish his power c. in part as by levying of a Fine of part and yet the power shall remain for the residue because it is in nature of a limitation and not of a condition P. 39. El. and 40 41 H. Earl of Salisburies case in Court of Wards 14 El. Dy. 39. 10. If the Lessor bargain and sell the reversion by Deed indenture and inroll the Bargainee is not in the Per by the Bargainor and yet he is an Assignee within the Statute So if the Lessor grant the reversion in Fee to the use of A. and his heirs A. is a sufficient Assignee c. because he comes in by the act and limitation of the party albeit he is in the Post and the words of the Statute be To or By and they be Assignee to him although they be not by him but such as come in meerly by act in Law as the Lord of the villain the Lord by Escheat c. shall not take benefit of this Statute 11. If the Lessor bargain and sell the reversion c. Or make a Feoffment in Fee and the Lessee reenter the grantee or Feoffee shall not take advantage c. Without making notice to the Lessee l. 8. f. 92. Frances Case And 12. albeit the whole words of the Statute be for non-payment of the rent or for doing of wast c. yet the Grantees and Assignee shall not take benefit of every forfeiture c. but onely of such conditions as either are incident to the reversion as rent or for the benefit of the State as for not doing of wast for keeping the houses in repair for making of fences scouring of ditches for preserving of woods c. and not for payment of any summe in grosse delivery of corn wood c. So as other forfeiture shall be taken for other forfeitures like to those examples which were there put viz. of payment of rent and not doing of wast which are for the benefit of the reversion Dyer 309. Sect. 348 349. Seign Tenant le tenant
54. 39 E. 3. 25 26. Sect. 396 397. Note that Ass mort Antecess non tenet inter conjunctas personas sicut fratres sorores c. for these are privy in blood Brac. l. 4. f. 261 282. 29 Ass 11. F.N.B. 196. b. Albeit the eldest son hath issue and dye and after the yongest son or his heir enter and many discents be cast in his line yet may the heirs of the eldest son enter in respect of the privity of the blood and of the same claim by one Title but otherwise it is if the Feoffee of the yongest son dye seised c. and admit that the yongest son be of the half blood to his brother yet he is of the whole blood to his Father and therefore if he enter by abatement and so gain a fee simple and dye seised it shall not barre his elder brother of his entry But if the eldest son enter and gain an actual possession and seisin then the entry of the yongest is a disseisin Br. ent 27. Si le puisne frere ent apres le mort le pier mor. seisin c. leign frere poit ent sur lissue c. pur ceo que ambiz les freres claime per m. le title auterment eÌ„ ou leigne frere ent c. puis eÌ„ disseisin per le puisne frere que mort seisee c. If the Father make a lease for life and hath issue two Sons and dyeth and the Tenant for life dye and the yongest Son intrude and dye seised this discent shall not take away the entry of the eldest But if the Father had made a lease for years it had been otherwise for that the possession of the lessee for years maketh an actual freehold in the eldest Son Fol. 243. a. 22 E. 4. 4. If two Coparceners be and they severally present to the Ordinary yet the Church is not litigious because they claim all by one Title Doct and St. cap. 30. fol. 117. If upon a Writ ad diem clau extr the yongest Son be found heir the eldest Son hath no remedy by the Common Law because they claimed by one Title but otherwise it is if they claim by several Titles But this is now holpen by the Statute of 2 E. 6. c. 8. If two Parsons be in debate for Tythes which amount to above the fourth part and one man is Patron of both Churches no Judicavit doth lie for that both Incumbents claim by one and the same Patron 2 H. 7. 12. a. There is a great diversity holden in our books where one hath a colour or pretence of right and when he hath none at all 2 E. 2. Bastar 19. 21 E. 3. 34. 22 Ass 85. 11 E. 3. Ass 88. 21 H. 6. 14. 11 E. 3. Age 3. Sect. 400. Sect. 398. When one Coparcener enters generally and taketh the profits this shall be accounted in Law the entry of them both and no devesting of the moity of her sister 21 Ass 19. 21 E. 3. 7. 27. 32. 4 H. 7. 10. 16 H. 7. 4. fo 243. b. If the privity of Coparcenary be once destroyed a dying seised shall take away entry c. 28 Ass 30. Vide S. 710. Sect. 399. Filius natus vel filia nata ex justa uxore appellatur in legibus Angliae filius mulieratus seu filia mulierata Glanvil lib. 2. ca. 2. Bract. 5. ca. 10. Brit. ca. 70. Bastardus dicitur à graeco verbo Bassaris i. Meretrix seu concubina Vide S. 188. Fleta l. 1. c. 5. vide S. 380. Manseribus scortum notho moechus dedit ortum Vt seges è spica sic spurius est ab amica If the husband be within the four Seas and the wife hath issue c. in that case filiatio non potest probari Bract. lib. 4. fo 278 279. 7 H. 4. 9. 43 E. 3. 10. 29 Ass 54. If the issue be born within a moneth or a day after marriage between parties of full lawful age the childe is legitimate 18 E. 4. 28. fo 244. â— It is holden that the mulier be within age at the time of the dying seised of the Bastard that nevertheless he shall be barred because the issue of the bastard is in judgement of Law become lawful heir and the Law doth prefer legitimation before the priviledge of infancy justum non est aliquem post mortem facere bastardum qui toto tempore vitae suae pro legitimo habebatur 5 E. 2. Discent Br. 49. 31 Ass 18. 22. Pl. Com. Stowels case 10 E. 3. 2. If a man hath issue a Son being bastard eigne and a daughter and the daughter is married the Father dyeth the son entreth and dyeth seised this shall barre the feme covert 13 E. 1. Bast 28. and the discent in this case of Services Rents Reversions expectant upon estates tail or for life whereupon rents are reserved c. shall binde the right of the mulier but a discent of these shall not drive them that right have to an action 14 E. 2. Bast 26. So if the bastard dye seised and his issue endoweth the wife of the bastard yet is not the entry of the mulier lawful upon the Tenant in Dower for his right was barred by the discent Sir Ri. Ledfords case lib. 8. 101 102. Ass Mortdanc lieth not between the bastard and the mulier in respect of the proximity of blood and the bastard being impleaded or vouched shall have his age 21 E. 3. 34. b. 30 Ass p. 7. 11 E. 3. Age 3. 5 H. 7. 2. Sect. 400. At a Parliament holden 20 H. 3. for that to certifie upon the Kings Writ that the son born before mariage is a Bastard was Contra Com. formaÌ„ Ecclesiae Rogaverunt omnes episcopi magnates ut consentirent quod nati ante Matrimonium essent legitimi sicut illi qui nati sunt post matrimonium quantum ad successionem haereditariam quia Ecclesia tales habet pro legitimis Et omnes Comites Barones una vocâ— respondent Quod noiunt leges Angl-mutare quae huc usque usitatae sunt approbatae Stat. de Merton cap. 9. Bract. l. 5. fo 410. 417. â—0 Ass pl. 10. Note that the law more respecteth him that hath a colourable title though it be not perfect in Law than him that hath no title at all Vide S. 39. Sect. 401. Est diversity lou Bastard continue la possession touâ— sa vie sans interruption lou le mulier enter interruption le possession de tiel Bastard Reg. none shall enter but the mulier or some other by his commandment M. 38. 39. El. Com. Banco Vide 31 H 8 ent cong Br. 23. Omnis ratibabitio retrotrahitur mandato aequiparatur 4 H 7. ca. Vide Sect. 334. But in the case of the Bastardeigne Gardein en Socage or gardein in Chivalry may enter for they are no strangers If an Infant make a Feoffment in fee an estranger of his own head cannot enter to the
year and a day but this Statute extends onely to Fines and not to Non-claim upon a judgement in a Writ of Right and therefore the Statute of â—â— E 3 16 which ousteth Non-claim onely to Fines levied extendeth not to a judgement in a Writ of Right to this day and therefore the Common Law in that case remaineth c. viz that claim must be made within a year and a day after judgement Also if a Fine be levied without Proclamations or without so many as the Law requireth then the Statute of Non-claim doth extend to such a Fine l 3 fo 44 c. Case del fines l 1. fo 96 Shelleys Case l 2 f 93 Binghams Case l 8 f 100 Lechfords Case l 91 f 139 c. Beaumands Case l 10. f â—9 b Lampots Case 99 a l 9 f 105 Margaret Podgers Case l 5. f 124 Saffins Case l 1â— 96 Seymors Case l 8 f 72. Greysleys Case l 11 â—65 7â— 78. Pl. Com. Smith and Stapl. Case Stows Case and Howels Case Bract. 435 Brit. 216 fo 262 a Finis finem litibus imponit A feme covert also they in reversion or remainder expectant upon any estate of Freehold are holpen by the Statute of 4 H 7 vide lib. fo â—62 b Sect. 442. In a Writ of entry sur disseisin against one supposing that he had not entry but by I. S. who disseised him the Tenant said that I.S. dyed seised and the land descended to him and prayed his age the Plaintiff counterpleaded his age for that he arraigned an Assize against S. who dyed hanging the Assize and he was ousted of his age for that the bringing of the Assize amounted to a Claim 24 E 3. 25. 9 E 2. Age 1â—1 If Tenant in Dower alien in fee with Warranty and the heir in the reversion bring a Writ of entry in Casu proviso c and hanging the plea the Tenant dyeth the heir shall not be rebutted or barred by this Warranty for that the Praecipe did amount to a continuall Claim 3 E 3. Garr 62. Fleta l. 6 c. 52 Bract. l. 5 fo 436 Fo. 263 a. Nota c. If the goods of Villain before any seisure c. be distrained the Lord may have a Replevin and the very bringing of the Writ doth amount to a Claim of the goods and vesteth the property in the Lord 33 E 3 Repl. 43 â—2 E 3 18. b 9 H â— 25. Nemo debet rem suam sine facto aut defectu suo emittere Sect. 443. If an usurpation be had to a Church in time of vacation this shall not prejudice the Successor to put him out of possession but that at the next avoidance he shall present F. N. B. 34 M.W. 2 c 5. imp excus c. When there is no Dean or Mayor the Chapter or Commonalty in that case cannot make claim because they have neither ability nor capacity to take or to sue any action But during the vacation of the Abathy of D. if a lease for life or a gift in Tail be made the remainder to the Abbot of D. and his Successors this remainder is good if there be aâ— Abbot made during the particular estate 2 H 7 13. 40 As 26. 34 E â— Garr 29. Qu. de dubiis c. Inter cuncta leges percunctabere doctos Hor. As Collatio peperit artes so Collatio perficit artes Crescente scientia cresunt simul dubitationes Autortias Philosophorum Medicorum Poetarum sunt in causis allegandae tenendae fo 264. a. CHAP. VIII Of Releases Sect. 444 REleases are of two sorts viz. a Release of all the right which a man hath either in lands and tenements or in goods and chattels Or there is a Release of actions real of or in lands or tenements or personal of or in goods or chattels or mixt partly in the realty partly in the personalty vide S 4â—2 Remis Relax quiet clamasse are proper words of Releases and be much of one effect besides there is Renunciare Acquietare and there be many other words of Release as if the lessor grants to the lessee for life that he shall be discharged of the rent vide S 532. Express Releases must of necessity be by Deed. Releases in Law are sometime by Deed and sometime without Deed. As if the Lord dissease the Tenant and make a Feoffment in fee by Deed or without Deed this is a Release of the Seigniory And so it is if the disseisee disseise the heir of the disseisor and make a Feoffment c this is a Release in Law of the right And the same Law is of a right in action 27 H 8. 29. Vse 34 H 6. 44. Attaint 3 E 3. 38. 21 E 4. 21. Pl. Com. de la mere If the Obligee make the Obligor his executor this is a release in law of the action but the duty remains for the which the executor may retain so much goods c. 8 E 4. 3. 21 E 4. 2. If the feme Obligee take the Obligor to husband this is a Release in Law So it is if there be two femes Obligees and the one take the debtor to husband 11 H 7. 4 â—0 H 7. 29 8 E 4. 3. If an Infant make the debtor his executor this is a good Release in Law of the action But if a feme execuâ—rix take the Debtor to husband this is no Release in Law for that should be a wrong to the dead and in Law work a Devastavit which an act of Law shall never work M. 30 31 Eâ— adjudged Note a diversity between a Release in Deed and a Release in Law â— for if the heir of the disseisor make a lease for life his right is gone for ever But if the disseisee doth disseise the heir of the disseisor and make a lease for life by this Release in Law the right is released but during the life of the lessee for a Release in Law shall be expounded more favorably according to the intent of the parties then a Release in Deed which is the act of the party and shall be taken most strongly against himself 30 E 3. 24 32 E 3. sc fac 102. Ius includeth not onely a right but also any Title or Claim either by force of a Condition Mortmain c. for the which no action is given by Law but onely an entry Sect. 446 fol. 265. a. Null droit passa per un release forsque le droit que le relesior ad al temps del release fait Note a man may have a present right though it take effect in possession but in futuro As he that hath a right to a reversion or remainder and such a right he that hath it may presently release Brit. fo 101. The Baron makes a lease for life and dieth the Release made by the wife of her Dower to him in reversion is good albeit she hath no cause of action against him in present 16 E 3. Bar. 245. Hoes Case 5.
if the disseisee disseise the heir of the disseisor albeit the heir recover the land against the disseisee yet shall he leave the preceding right in the disseisee So if a woman that hath right of Dower disseisâ— the heir and he recover the land against her yet shal he leave the right of Dower in her 5 Ass 1 10 Ass 16. 50 E 3 7 30 Ass â— E 3. â—ntry 56. Another diversity is to be noted when the meer right is subsequent and translated by act in Law there albeit the possession be recontinued yet that shall not draw the naked right with it as if the heir of the disseisor be disseised and the disseisor infeof the heir apparent of the disseisee being of full age and then the disseisee dyeth and the naked right descends to him and the heir of the disseisor recover the land against him yet doth he leave the naked right in the heir of the disseisee So if the discontinuee of Tenant in Tail infeoff the issue in Tail of full age and then the discontinuee recover c. yet he leaveth the naked right in the issue 12 Ass 41. 27 E 3 84 488. 23 H 8. Restore al action Br 5. vide S 473 475 478 487 But if the heir of the disseisor be disseised and the disseisee release to the disseisor upon Condition If the Condition be broken it shall revest the naked right And so if the disseisâ—e had entred upon the heir of the disseisor and made a Feofment in fee upon Condition if he enter for the Condition broken and the heir of the disseisor enter upon him the naked right should be left in the disseisee But if the heir of the disseisor had entred before the Condition broken then the right of the disseisee had been gone for ever 38 E 3 16 9 H 7 24 Sect 448 Naturall seisin is the freehold in deed and the civill the freehold in Law Bract l 4 f 206 236 Brit f 83 b Vide S 680 If a man levy a fine to a man Sur Com c Com ceo c. or a fine SuÌ„ conusee de droit tantum these be feoffments of record and the Conusee hath a freehold in Law in him before hee entreth 42 E 2 20 10 H 6 14 17 E 3 7 8 2 E 3 31. Vpon an exchange the parties have neither freehold in Deed nor in Law before they enter so upon a Petition the freehold is not removed untill an entry 11 H 4 61 21 H 7 12 If Tenant for life by the agreement of him in the reversion surrender unto him he in reversion hath a freehold in Law in him before he enter 32 E. 3 Bar. 262 4â— Ass â— 13 H 4 Surr. 10 Vpon a livery within view no freehold is vested before an entry 31 E 3 12 Fo 266 b If a man do bargaine and sell land by Deed indenture and intollenâ—â—â—â— the freehold in Law doth passe presently and so when use are raised by covenant upon good consideration If a Tenant in a praecipe being seised of Lands in fee confess himselfe to be a villaine to a stranger and to hold the land in villenage of him the stranger by this acknowledgement is actually seised of the freehold and inheritance without any entry 17 E 3 77 18 E 4 25 Sect 449 450 451 Fo. 267 a A release of all the right may be good to him in revoâ—sion or to him in remainder in deed â— E 3 5â— albeit he hath nothing in the freehold because he hath an estate in hiâ— â— E 4 13 14 H 4 32 b 41 E 3 17 49 E 3 28 case ult For he to whom a release is made of a bare right in lands and tenements must have either a freehold in deed or in Law in possession or a state in remainder or reversion in fee or fee taile or for life But note that the state which maketh a man Tenant to the precipe is said to be the freehold 3 E 2 enter 7. F. N.B. 20. E. Sect. 452. Fo. 267. b. Note that as a release made of a right to him in reversion or remainder shall aid and benefit him that hath the particular estate for years life or estate taile So a release of a right made to a particular Tenant for life or in taile shall aid and benefit him or them in remainder Sils ceo peient monstre The one cannot plead the Release made to the other without shewing of it for that they are privy in estate There is a diversity between severall estates in severall Lands and severall estates in one land for if two Tenants in Common of Lands grant a rent charge of forty shillings out of the same to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of Law was severall But if one be Tenant for life of lands the reversion in fee over to another if they two joyne in grant of a rent out of the lands if the grantee release either to him in the reversion or to Tenant for life the whole rent is extinguished for it is but one rent and issueth out of both estates Sect. 454. Fo. 68. a. Note two diversities 1 Between a Seigniory or rent service and a rent charge for a Seigniory or rent service may be released and extinguisht to him that hath but a bare right in the land in respect of the privity betwenn the Lord and the Tenant in right for he is not only as Tennanr to the avowry but if he die his heire within age he shall be in ward and if of full age he shall pay reliefe and if he die without heire the land shall escheat But there is no such privity in case of a rent charge for there the charge lieth upon the Land The second diversity is betweene a Seigniory and a bare right to land for a release of a bare right to land to one that hath but a bare right is void But a release of a Seigniory to him that hath but a right is good to extinguish the Seigniory Nota Seigniory rent or right either in praesenti or in future may be released five manner of wayes and the first three without any privity 1. To the Tenant of the freehold in deed or in Law 2. To him in remainder 3. To him in reversion The other two in respect of privity as 1. Where the Lord releaseth his Seigniory to the Tenant being disseised having but a right and no estate at all 2. In respect of the privity without any estate or right as by the demandant to the vouchee or donor to the donee after the donee hath discontinued in fee. vid. S. 455. l. 10. fo 48. Lampets case If the Lord hath accepted services of the disseisor then the disseiser cannot enforce the Lord to avow upon him though his beasts be taken c 20 H. 6. 9. b. 2 E 4. 6. a. But some do hold that if
there be Lord and Tenant and the Tenant be disseised and the disseisee die without heir the Lord accepts rent by the hands of the disseisâ—r this is no bar to him contrary it is if he avow for the rent in Court of Record or if he take a corporall service as homage or fealty for the disseisor is in by wrong but if the Lord accept the rent by the hands of the heir of the disseisor or of his Feoffee because they be in by title this shall bar him of his escheate which is to be understood of a discent or a Feoffment after the title of escheat accrued for if the disseisor make a Feoffment in Fee or die seised and after the disseisee die without heir then there is no escheat at all because the Lord hatâ— a Tenant in by title 7 E 6. escheat Br. 18. F.N. B. 1440. 7. H 4. 17 2 H 4. 8. 6 H 7. 9. vid. S. 556. Vpon the Statute 21 H 8. ca. 19. These four points are to be observed 1. That the Lord hath still election either to avow according to the Common Law by force of the Statute by reason of this word May. 2. Albeit the purview of the act be general yet all necessary incidents are to be supplied and the scope and end of the act to be taken and therefore though he need not to make his avowry upon any person certain yet he must alledge seisin by the hands of some Tenant in certain within 40. years 3. That if the avowry be made according to the Statute every plaintiffe in the replevin or second deliverance be he Termor or other may have every answer to the avowry that is sufficient and also have aid and every other advantage in Law disclaymer only excepted for disclaim he cannot because in that case the avowry is made upon no certain person 4. Where the words of the Statute be if the Lord distreine upon the Lands and Tenements holden yet if the Lord come to distraine and the Tenant enchase the beasts which were within the view out of the land holden â— there the Lord distreine c. in judgement of Law the distresse is lawfull and as taken within his fee and Seigniory and the Statute being made to suppresse fraud is to be taken by equity L 9. so 136. Ascoughs case 27 H 8. fo 4. 32 H 8. ca. 2. l. 9. f. 36 â—acknaâ—â— case 34 H 8. Avow Br. 113. l. 9. f. 22 case davow 11 H. 7. 4. 34 H 6. 18. 16 E 4. 10. 21 H 7. 40. Sect. 445. Fo. 269. Note a diversity between a release of a rent service out of Land and a release of right to land As if a Lease be made to F. one for life reserving to the lessor and his heirs a certaine rent If the lessee be disseised and after the lessor release to the lessee and his heirs all the right which he hath in the Land and after the lessee enter albeit in this case the rent is extinct yet nothing of the right of reversion shall passe But admit that the Donee in taile in such case make Feoffment in fee and the donor release unto him and hiâ— heirs all the right in the Land this shall extinguish the to â—t because the Lord must avow upon him and yet the Tenant in Tail after the Feoffment hath no right in the Land but the reason is in respect of the privity and that the donor is by necessity compellable to avow upon him only c. 1 H. 5. garr 43. 14. H. 4. 38. l. 3. fo 29. l. 6. 58 10. E. 3. 26. 48. E. 3 8. b. 31. E. 3. gard 116. 5. E. 4. 3 7. E. 4. 27. 15. E. 4. 13. Trin. 18. Eliz Sir Tho. Waits case in Com. Banco Nota c. Sect. 457 458. Si veray Tenant que est disseisin reign del fiâ—gn per service de chivalry mor. son heire eant deius age le siegn avera seisam le gard del heire mes si tiel tenant fist Feoffment in fee c. auterment est 12 H. 4 13. 36 E. 3. gard 10. 6. H 7. 9. 37 H. 6. 1. 32. H. 6. 27. 7. E. 6. gard Br. There be four manner of avowries for rents and services c. viz. 1. Super verum tenentem as in the case here put 2. Supra verum tenentem in forma praedicta as where a Lease for life or a gift in tail be made the remainder in fee. 3. Upon one as upon his Tenant of the Mannor omitting very and this is when the Lord hath a particular estate in the Seigniory and so shall the donor upon the donee or lessor upon the lessee 4. Sur la matter en la terre as within his fee and Seigniory As where the Tenant by knights service maketh a Lease for life reserving a rent and die his heir within age the gardein shall avow upon the lessee 2 H. 4. 24. 12. E. 4. 42. 26. H. 6. avowry 17. 9 El. Dyer 257. 5. H 7. 11. 7. E. 4. 24. 20. E. 3. avow 131. 47. E. 3. fo ult 38. H. 6. 23. Now by the Statute 21. H. 8. ca. 19. The very Lord may avow as in Lands within his fee and Seigniory without avowing upon person in certainty Note a diversity if Tenant in Tail make a Feoffment in fee yet the right of the Tenant in tail remains and shall descend to the issue in tail But when the Tenant in fee simple make a Feoffment in fee no right at all remains of his estate but when the whole is transferred to the Feoffee Also the Lord is not compellable in that case to avow upon the Feoffor but if he will as Littleton here saith he may avow on the Feoffee but so it is not in case of tenant in tail Fol. 269. b. Note a diversity between actions and acts which concern the right and actions and acts which concern the possession only for a writ of customs and services lyeth not against the Feoffor nor a release to him shall extinguish the Seigniory So if a rescous be made an Ass shall not lie against the Feoffor and him that made the Rescous because the Feoffee is Tenant and in Ass the surplusage incroached shall be avoided for these actions and acts concern the right but of a seisin and avowry which concern the possession it is otherwise and if the Lord release to the Feoffor this is good between them as to the possession and discharge of the arerages but the Feoffee shall not take benefit of it for that it extended but to the right But the Feoffor shall plead a release to the Feoffee for thereby the Seigniory is extinct as if the lessee for life doth wast and grant over his estate and the lesser release to the grantee in an action of wast against the lessee he shall plead the release and yet he hath nothing in the land and so in wast shall Tenant in Dower or by the curtesie in the like case and
the vouchee and the Tenant in praecipe after a Feoffment made and so in a contra formam collationis Nota c. If there be Lord and Tenant and the rent is behind for divers years and the Tenant make a Feoffment in fee if the Lord accept the service or rent of the Feoffee due in his time he shall lose the arrerages due in the time of the Feoffor for after such acceptance he shall not avow upon the Feoffor nor upon the Feoffee for the arrerages due c. But in that case if the Feoffor dieth albeit the Lord accept the rent or service by the hand of the Feoffee due in his time he shal not lose the arrerages for now the Law compelleth him to avow upon the Feoffee and that which the Law compelleth him unto shall not prejudice him 4 E. 3. 22. 7. E. 3. 8. 7. E. 4. 27. 29. H. 8. avow Br. 111. l. 3. fo 65. 66. Pennants case 7. H. 4. 14. 2. E. 4. 6 3. 4. H. 6. 46. 47. E. 3. 4. Vide lib. c. Sect. 459. If a man make a lease for years the Remainder for years and the first lessee doth enter a release to him in remainder for years is good to inlarge his estate 22. E. 4. Surr. 6. But if a lease be made to begin at Michaelmas reserving a rent and before the day the lesser release all the right that he hath in the land this cannot enure to inlarge the estate but to extinguish the rent in respect of the privity M. 39. 40 El in Scacc. Sir H. Woodhouse and Sir Will. Paston A man grants the next avoidance of an advowson to two the one of them before the Ch. become void for after it becoms void it is but a thing in action may release to the other for although the grantor cannot release to them to incâ—ease their estate because their interest is future and not in possession yet one of them to extinguish his interest may release to the other in respect of the privity P. 38. El. Qu. imp per Bonnet vers levesque Norwich in Com. Ban. Note that seeing lessee for years hath interesse termini before euery he may grant it over albeit for want of an actuall possession he is not capable of a release to inlarge his estate Pl. Com. 423. But if a man make a release for life the remainder for life and the first lessee dieth a release to him in remainder and his heirs is good before he doth enter to inlarge his estate for that he hath an estate of a freehold in Law in him Sect. 460. and 461. A release to a Tenant at will is good because between them there is a possession with privity but a release to a Tenant at sufferance is void because he hath a possession without privity 21. H 6. 37. 2 E. 4. 6. b. 7. E. 4. 27. 8. 4. 16. 29. H. 6. Rel. 6. Fo. 270. b. But if a man enter into Land of his own wrong and take the profits his words to hold it at the will of the owner cannot qualifie his wrong but he is a disseisor and then the release to him is good or if the owner consent thereunto then he is a Tenant at will and that way also the release is good Temps H 8 Tenant a. vol. l. 5. 2. E. 4. 38. 13. E. 3. Ass 86. But there is a diversity when one cometh to a particular estate in land by the act of the party and when by act in law for if the Gardein hold over he is an Abator because his interest came by acts in Law 10. E. 4. 9. 10. Privity is fourfold First Privies in estate as between the donor and donee lessor and lessee which privity is ever immediate 2. Privies in bloud as the heir to his Ancestor or between Coparcerners c. 3. Privies in representation as executors c. to the Testator 4. Privity in tenure as the Lord and Tenant c. which may be reduced to generall heads Privies in Deed and Privies in Law Old N.B. 117. 137. l. 4. fo 23. Walkers case l. 4. f. 123. c. Vide S. 454. Sect. 462. and 463. VVhen a Feoffment is made to a future use as to the performance of his last Will the Feoffees shall de seised to the use of the Feoffor and of his heirs in the mean time And reason would That seeing the Feoffment is made without consideration and the Feoffor hath not disposed of the profits in the mean time that by construction and intendment of law the Feoffor ought to occupy the same in the mean time And so it is when the Feoffor disposeth the profits for a particular time in praesenti the use of the inheritance shall be to the Feoffor and his heirs as a thing not disposed of 35. H. 6. Subpoena 22. 15. H. 7. 12. b. 37. H. 6. 36. 11. H. 4. 52. 7. H. 4. 22. 1. M. 1 11. Dyer And note a diversity between a Feoffment at lands at this day upon confidence or to the intent to perform his last Will and a Feoffment to the use of such person and persons and of such estate and estates as he shall appoint by his last Will for in the first case the land passeth by the Will and not by the Feoffment for after the Feoffment the feoffor was seised in fee simple as he was before but in latter case the Will pursuing his power is but a direction of the uses of the feoffment and the estates pass by execution of the uses which were raised upon the feoffment but in both cases the feoffees are seised to the use of the feoffor and his heirs in the mean time l. 6. fo 17 18. Sir Edw. Cleres Case fo 271. b. Note uses are raised either by transmutation of the state as by Fine Feoffment Common Recovery c. or out of the state of the owner of the land by bargain and sale c. or by Covenant upon lawfull cosideration Dillon and Frayns case l. 1. c. fo 113. There cannot be two uses in esse of one and the same land But if A. disseise one to the use of B. and doth bargain and sell the land for money to C.C. hath an use and here be two uses of one land but of severall natures the one viz. upon the bargain and sale to be executed by the Statute and the other not But since Littleton wrote all uses are transferred by Act of Parliament into possession 27. H. 8. cap. 10. Sect. 464. Fol. 272. a. By the Statute of 2. H. 5. cap. 3. Stat. 2. it is enacted that in three cases he that passeth in an Enquest ought to have lands tenements to the value of 40. s. viz. 1. Upon Triall of the death of a man 2. In Plea reall between party and party And 3. In Plea personall where the debt or or and the damages in the Declaration amount unto forty Marks 28. H. 8. Dyer fol. 9. 9. H. 5. fol.
the Feoffee this release shall take away the entry of the disseisor for the alienation which was made to his disinheritance he having the inheritance by disseisin so as he could have no warranty annexed to it and Tenant for life forfeited his estate But if the entry of the disseisee were not lawfull it is otherwise as the Book of 9. H. 7. 25. is of an estate Tail mutatis mutandis Vide l. fo 277. a. Sect. 475. Abate Vide N.B. 115. Brit. cap. 51. Bract. l. 4. cap. 2. Abatamentum is an entry by interposition A Disseisin is a wrongfull putting out of him that is actually seised of a Freehold and Abatement is when a man died seised of an estate of Inheritance and between the death and entry of the heir an estranger doth interpose himself and abate Intrusion 1. properly is when the Ancestor died seised of any estate of inheritance expectant upon an estate for life and then Tenant for life dieth c. and an estranger doth interpose himself and intrude 2. He that enters upon any of the Kings demesns and taketh the profits is said to intrude upon the Kings Possessions F.N.B. 203. Fleta l. 4. cap. 30. Pl. Com. case de Mynes 3. When the heir in ward enters at his full age without satisfaction for his marriage the writ saith quod intrusit F.N. B. 141. F. Deforciamentum comprehendeth not only these aforenamed but any man that holdeth Land whereunto another man hath right be it by discent or purchase is said to be a deforcer Usurpation hath two significations in the common Law one when an estranger that no right hath presenteth to a Church and his Clark is admitted and instituted 2. When any subject doth use without lawful warrant Royall franchises he is good to usurp c. Purprestura est c. generaliter quories aliquid sit ad nocumentum regii tenementi vel regiae viae vel aliquarum publicar vel civitatis c. Glanv l. 9. ca. 11. Brit. fo 28. 29. And because it is properly when there is a house builded or an inclosure made of any part of the Kings demesne or of an high way or a common street or publike water or such publike things it is derived of the French word Pourpris which signifieth an inclosure but specially applyed as is aforesaid by the common Law Sic nota differentiam inter disseisinam Abatamentum Intrusionem deforciamentum usurpationem purpresturam Sect. 476. Fo. â—77 b. But if the Feoffee upon condition make a Feoffment in fee over without any condition and the disseisee release to the second Feoffee the condition is destroyed by the release before the condition broken or after for the state of the second Feoffee was not upon any express condition as Littleton here putteth his case and he may have advantage of the release because it is not against his own proper acceptance as Littleton speaketh in the next Section L. 1. fo 147. Mayowes case But if it be a wrongfull title such a title is taken away by a release As if A. disseised B. to the use of C.B. release to A. this shall take away the agreement of C. to the disseisin because it should make him a wrong doer as if the disseisor be disseised the disseisee release to the second disseisee this taketh away the right of the first disseisor had against the second and a relation of an estate gained by wrong shall never defeat an estate subsequent gained by right against a single opinion not affirmed by any other in our books 14. H. 8. 11. per Portm Si disseisee release al Feoffee sur condition ceo namendre lestate le Feoffee c. Sect. 477. Fo. 478. a. Home navera advantage per un release que serre enconter son proper acceptance encounter son grant dem compt que asc ' ont dit que lou enier de hâ—me est congeable sur un tenant sil release a mes le tenant que ceo availoit a le tenant sicom il ust enter sur le tenant puis luy infeoffa c. ceo neâ— pas voier en chesc ' cas Car si le disseisee ust enter sur le Feoffee sur condition puis luy infeoffa donques est le condition tout defeat mes il ne pas void per asc ' tiel release sant entry fait c. If A. and B. be joynt disseisors and B. grant a rent charge and the disseisee release to A. all his right A. shall avoid the rent charge because it was not granted by him and so not within the reason of our authour If two disseisors be and they infeoffee another and take back an estate for life or in fee albeit they remain disseisors to the disseisee as to have an Ass against them yet if he release to one of them he shall not hold our his companion because their state in the land is in by Feoffment If there be two disseisors and they be disseised and they release to their disseisor and after disseise him and then the disseisee release to one or both of them yet the second disseisor shall reenter for they shall not hold the land against their own release If a disseisee release to one of the disseisors to some purpose this shall enure by way of entry and Feoffment viz. as to hold out his companion But as to a rent Charge granted by him it shall not enure by way of entry and Feoffment for if the disseisee had entred and enfeoffed him the rent charge had been avoided But it is a certain rule that when the entry of a man is congeable and he release to one that is in by title as here to the Feoffee upon condition is it shall never enure by way of entry and Feoffment either to avoid a condition with which he accepted the land charged or his own grant or to hold out his companion And where it appeareth by our authour that acts done by the disseisor shall not be avoided by the release of the disseisee It is to be noted that acts made to the disseisor himself shall not be avoided by the alteration of his estate by the release of the disseisee as if the Lord before the release had confirmed the estate of the disseisor to hold by lesser services the disseisor shall take advantage of it and so of estovers to be burnt in the house and the like Law is of a warrantty made unto him If an alien be a disseisor and obtain letters of denization and then the disseisee release unto him the King shall not have the land for the release hath altered the estate and it is as it were a new purchase otherwise it is if the alien had been the Feoffee of a disseisor Fo. 278. b. If the Lord disseise the Tenant and is disseised the disseisee release to the second disseisor yet the Seignory is not revived for between the parties the release enures by way
a good bar in a Qu. imp because it is a mixt action 22. H. 6. 27. b. A disseisor that hath nothing in the land may plead a release of actions personalls because damages are to be recovered against him 11. Ass 9. 18. E. 3. 2. 23 24. And the Tenant in an Assize shall plead a release of actions personalls to the disseisor for that plea proveth that the Plaintiff hath no cause of action against him 13. H. 4. 2. a. If the disseisee release to the disseisor all actions realls and the disseisor maketh a Feoffment in fee and an Assize is brought against them the Feoffee shall not plead the release to the disseisor for that he is not privy to the Release for a release of actions shall only extend to privies If the disseisee release all actions to the disseisor and dye this doth bar him but for his life So note a diversity between a release of right and a release of actions 19. H. 6. 23. a. Sect. 496. Fol. 286. a. If the disseisee release all actions to the heir of the disseisor which is in by discent he hath no remedy to recover the land but yet the disseisee hath a right for that he hath released his actions and not his right If the heir of the disseisor make a Feoffment in fee to two and the disseisee release to one of the Feoffees all actions the survivor shal not plead this Release Note when a man hath severall remedies for one and the self-same thing be it reall personall or mixt albeit he release one of his remedies he may use the other 19. Ass 3. 30. E. 3. 19. 6. 21. H. 7. 23. Sect. 498. Fol. 286. b. If the Plaintiff in an action of Detinue of Charters which concern the inheritance of his land can declare of one Charter in especiall the Defendant shall not wage his Law 41. E. 3. 2. 8. H. 6. 18. 28 29. 10. H. 6. 20. 21. H. 6. 1. 14. H. 6. 4. 14. H. 4. 23 24 27. An action of Detinue for Charters doth sound in the realty for therein Summons and severance lieth and in Detinue of goods a Capias doth lye but for Charters in speciall a Capias lieth not and yet a release of actions personalls in a Writ of Detinue of Charters is a good barre 20. H. 6. 45. 19. E. 3. Severance 14. Sect. 499. Fol. 287. a. In a Writ of Dower the Tenant pleaded that before the Writ purchased A. was seised of the Land c. untill by the Tenant himself he was disseised and that hanging the Writ A. recovered against him c. Judgement of the Writ and adjudged a good plea in which plea the Tenant confessed a disseisin in himself 15. E. 4. 4. b. Sect. 500. Fol. 287. b. Placitorum criminalium alia majora alia minora alia maxima secundum criminum quantitatem sunt enim crimina majora dicuntur capitalia eò quod ultimum inducunt supplicium c. Minora verò quae fustigationem inducunt vel poenam pilloralem vel tumboralem vel carceris inclusionem c. Bract. lib. 3. 101. b. Criminalium quaedam sententialiter mortem inducunt quaedam verò minime Fleta lib. 1. c. 15. Appellum signifieth Accusatio and the Appellant Accusator is peculiarly in legall signification applied to Appeals of three sorts 1. Of wrong to his Ancestor whose heir male he is and that is only of death whereof our Author here speaketh The 2. is of wrong to the husband and is by the wife only of the death of her husband to be prosecuted The 3. is of wrongs done to the Appellants themselves as Robbery Rape and Mayheme The word Apellum is derived of Appeller to call because Appellans vocat reum in judicium Glanv l. 7. c. 9. aestimatio capitis i.e. so much as one paid for the killing of a man Fleta lib. 1. cap. 42. Hoved. fol. 344. You shall not read of any Insurrection or Rebellion before the Conquest when the view of Frankpledge and other ancient Laws of this Realm were in their right use A release of all actions reall and personall cannot barr an Appeal of Death because that release extendeth to common or civill actions and not to actions criminall 21. H. 6 16. Roberia is a felonious taking away of goods de la Robe that is from the person 22. Ass 39. W. 1. c. 20. Sect. 502. Fol. 288. a. En appeale de Mayhem un release de touts maners actions personalls est bone plea c. for that every action wherein damages only are recovered by the Plaintiff is in Law taken for an action personall 21. H. 6. 16. Sect. 503. Fol. 288. b. Before that time that the Outlary appear of Record the Defendant doth not forfeit his goods nor the Plaintiff can be disabled nor any Writ of Error doth lie in that case 28. Ass 49. 12. E. 3. Vtlage 3. M. 4. 5. Eliz. Dyer 222. S. 197. If a man by process upon the Originall be Outlawed there he shall be restored to nothing in the personalty against the Plaintiff But whereby the Outlawry he forfeited all his goods and chattells to the King he shall be restored to them also thereby he shall be restored to the Law and to be of ability to sue c. but if the Plaintiff in a personall action recover any debt c. or damages and the Defendant be Outlawed after Judgment there in a Writ of Error brought by the Defendant upon the principall Judgment a release of all actions personalls is a good plea. And so it is where a Judgment is given in a reall action a release of all actions realls is a good bar in a Writ of Error thereupon And in this speciall case here put by Littleton wherein the Plaintiff is to recover or to be restored to nothing against the party yet for that the Plaintiff in the former action is privy to the Record a release of a Writ of Error to him is sufficient to bar the Plaintiff in the Writ of Error of the Suit and vexation by the Writ of Error And so note that an action reall or personall doth imply a recovery of something in the realty or personalty or a restitution to the same but a Writ implyeth neither of them 1. H. 4. 6. 13. E. 4. 1 2. 26. H. 8. 3. b. 29. Ass 35. 47. E. 3. 6. 35 H. 6. 19. Sect. 504. fol. 289. a. b. A release of all actions reg is no bar of execution for the execution doth begin when the action doth end And therefore the foundation of the first is an Originall Writ and doth determin by the Judgment and Writs of execution are called Judiciall because they are grounded upon the Judgement 13. H. 4. Rel. 53. 19. H. 6. 3. Where a Capias ad Sat. lieth at the Common Law and where it is given by Statute vide Sir William Herberts case lib. 3. fo 11 12. Maximes in the Law concerning Executions Ea quae
the Confirmation extendeth not to the rent suspended otherwise it is of a release in both cases Est bone sure chose en chesc ' confirmation d'aver ceux parolls a aver tener les tenements c. en fee ou en fee tail ou pur terme de vie ou pur terme dans solonque eo que le case est c. Note the diversity between a Confirmation of the estate for life in the land to have and to hold the said state in the land to him and his heirs this cannot enlarge his estate for his estate being but for life cannot be extended to his heirs But in that case if he confirme the state for life in the land in the premises of the Deed and the habendum is to have and to hold the land to him and his heirs this shall create in him a fee simple 18 E. 3. 40. Sect. 525. If a man letteth land to the husband and wife to have and to hold the one moity to the husband for terme of his life and the other moity to the wife for her life and the lessor confirm the estate of them both in the land to have and to hold to them and to their heirs by this Confirmation as to the moity of the husband it enureth only to the husband and his heirs for the wife had nothing in that moity but as to the moity of the wife they are joyntenants for the husband hath such an estate in his wifes moity in her right as is capable of a Confirmation But if such a lease for life be made to two men by several moities and the lessor confirm their estates in the land to have and to hold to them and to their heirs they are Tenants in Common of the Inheritance for reg the Confirmation shall enure according to the quality and nature of the estate which it doth enlarge and encrease 18 Ass p. 3. 18 E. 3. Confirmation 17. fol. 299. b. If a lease for life be made to A. the remainder to B. for life and the lessor confirm c. A. taketh one moity to him and his heirs and therefore of the one moity he is seised for life the remainder to B. for life and then to him and his heirs of the other moity A. â—is seised for life the immediate inheritance to B. and his heirs because as to the moity which B. takes the same is executed 39 H. 6. 9 If lands be given to two men and to the heirs of their two bodies begotten and the Donor confirm their two estates in the land to have and to hold the land to them two and to their heirs in this case some are of opinion that they shall be joyntenants of the fee simple because the Donees were jointenants for life and the Confirmation must enure according to the estate which they have in possession and that was joynt But others hold the contrary For 1. They say that the Donees have to some purposes severall inheritances executed though between the Donees survivor shall hold for their lives 2. They say that when the whole estate which comprehended severall inheritances is confirmed the Confirmation must enure according to the severall inheritances which is the greater and most perdurable estate and therefore that the Donees shall be Tenants in Common of the inheritance in this case Albeit in this case of Littleton the husband by the Confirmation gaineth an estate for life in remainder yet if the husband doth waste an action of Waste shall lie against him and his wife notwithstanding the mean remainder because the husband himself committeth the wast and doth the wrong 17 E. 3. 68. b. Sir Edward Caries Case lib. 5. fo 76. b. Sect. 526 527. Fol. 300. a. Note a diversity between a lease for life and a lease for years made to a feme covert for her estate of Freehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Chattels reals as leases for years Wardships c. are not given to the husband absolutely as all Chattels personals are by the intermarriage but conditionally if the husband happen to survive her and he hath power to alien them at his pleasure but in the mean time the husband is possessed of the Chattels reall in her right 5 E 3. 17. b. Pl. Com. 418. b. 24. H. 4. 12. Pl. Com. Dame Hales Case 50 Ass p. 15. 4 H. 6. 5. 7 H. 6. 1. 21 H. 7. 29. 21 E. 4. 40. 26 H. 8. 7. Such a thing as I may defeat by my Entry I may make good by my Confirmation 11 H 7. 28. 3 H 4. 10. If the feoffee upon condition grant a rent charge en fee and the feoffor confirm it and after the Condition is broken and the feoffor enter he shall not avoid the rent charge And so it is if the heir of the diffeisor grant a rent charge and the disseisee confirmeth it and after recover the Land he shall not avoid the rent And yet in neither of these cases his entry was congeable at the time of the Confirmation Lib. 1. fo 147. c. Anne Mayowes case Sect. 528. Fol. 300. b. Persona is said to be seised in jure Ecclesiae and the Law had an excellent end herein viz. that in his person the Church might sue for and defend her right and also be sued by any that had an elder and better right and when the Church is full it is said to be plena consulta of such a one person thereof that may vicem seu personam gerere ejusdem Ecclesiae Brit. fol. 234. b. F.N. 48. A. Parson of D. is Patron of the Church of S. as belonging to his Church and presents B. who by consent of A. and of the Ordinary grant a rent charge out of the Gleab this is not good to make the rent charge perpetuall without the assent of the Patron of A. no more then the assent of the Bishop who is Patron without the Dean or Chapter or no more then the assent of the Patron being Tenant in Tail or for life as Littleton saith And Littleton here saith that the Patron that confirms must have a fee simple meaning to make the charge perpetuall And Littleton after saith that in the case of the Parson the fee is in abeiance and seeing the consent of the Patron is in respect of his interest as heir it appeareth by Littleton he may consent upon Condition otherwise it is of an attornment because it is a bare assent Also if the state of the Patron be conditionall and he confirmeth and after the Condition is broken his Confirmation is void Lib. 2. 39 24 l. 1. 153 l. 4 23 24. l. 5. 31. 81. l. 10. 6. l. 11. 19. l. 6. 34. Note a diversity between a sole Corporation as Parson Prebend Vicar c. that have not the absolute fee in them for to their grants
if Tenant in tail make a Lease for life whereby he gaineth a new reversion in fee so long as Tenant for life liveth and he granted a rent-charge out of the reversion and after Tenant for life dyeth whereby the grantor becometh Tenant in Tail again and the reversion in fee defeated yet because the grantor had a right of the intail in him cloathed with a defeasible fee simple the rent charge remaineth good against him but not against his issue which diversity is observable 11 H. 7. 21. Edriches case If the heir apparent of the disseisee disseise the disseisor and grant a rent charge and then the disseisee dieth the granter shall hold it discharged for there a new right of entry doth descend unto him and therefore he is remitted So if the Father disseise the grandfather a grant and rent charge and dyeth now is the entry of the grandfather taken away if after the grandfathet dyeth the Sonne is remitted So as where our authour putteth his example of a fee taile it holdeth also in case of fee simple and Littleton que la terre est discharge del rent c. But the whole grant is not thereby avoided for the grantee shall have notwithstanding a writ of annuity and charge the person of the grantor Lib. 2. fo 36. b. Wards case Also Littleton here puts his case of things granted out of the Land But if the issue at full age by Deed Indentâ—â—â— or Deed Poll make a Lease for years of the land and after by the death of tenant in tail he is remitted It is holden that he shall not avoid the Lease because it is made of the Land it self and the Land is become by the Lease in another then it is in the case of a grant of a rent charge 33 H. 8. Dy. 51. b. and vide Sect. 289. * Sect. 661. Fo. 349. b. Regularly a man shall not remitted to a right remediesse for the which he can have no action l. 3. f. 3. Marquesse of Winchesters case Neither an action without a right nor a right without an action can make a remittance As if Tenant in tail suffer a common recovery in which there is errour and after Tenant in tail disseise the recoveror and dyeth here the issue in tail hath an action viz. a writ of error but as long as the Recovery remaineth in force he hath no â—ight and therefore in that case there is no remittance If B. purchase an Advowson and suffer an usurpation and six â—oneths to passe and after the usurper grant the Advowson to B. and his heirs B. dieth his heir is not remitted because his right to the Advowson was remedilesse a right without an action Tenant in tail of a Manor whereunto an Advowson is appendant maketh a discontinuance the disconâ—â—ee grants the Advowson to Tenant in tail and his heirs Tenant in tayl dyeth the issue is not remitted to the Advowson because the issue had no action to recover the Advowson before he recovered the Manour whereunto the Advowson was Appendant 5 H. 7. 35. And so it is of all other inheritance regardant appendant or appurtenant a man shall be remitted to any of them before he recontinueth the Manor c. whereunto they are regardant appendant c. Car nul ne poit claimer droit en les appurtenances ne en les accessories que nul droit ad en le principall Brit. fo 126. But on the other side if a man be remitted to the principal he shall also be remitted to the appendant or accessory albeit it were severed by the discontinuee or other wrong doer and therefore if Tenant in tail be of a Manor whereunto an Advowson is appendant and infeoffeth A of the Manor with the appurtenances A. re-enfeoffeth the Tenant in tail saving to himself the Advowson Tenant in tail dieth his issue being remitted to the Manor is consequently remitted to the Advowson although at that time it was severed from the Manor So it is in the same case if Tenant in tail had been disseised and the disseisor suffer an usurpation if the disseisee enter into the Manor he is also remitted to the Advowson 8 R. 2. Qu. imp 199. 2 H. 4. 18. 14 H. 6. 15 16. FNB. 25. b. 36. f. 33 H. 8. Dy. 48. b. 24 E. 3. discontinuance 16. Sect. 663 664. Fo. 350. If the discontinuee after the death of Tenant in tail make a charter of feoffment to the issue in tail being within age who hath right and to a stranger in fee and make livery to the infant in name of both the issue is not remitted to the whole but to the half for first he taketh the fee-simple and after the remittance is wrought by operation of Law and therefore can remit him but to a moity Vide Sect. 288. Si Tenant in tale infeoffe sou heire apparent l'heire evant de plein age al temps de feoffment puis le Tenant en taile mor ceo nest remitter al heire pur ceo que il fuit sa folly que il evant de plein age voile prender tiel feoffment c. By this feoffment albeit the heir apparent hath some benefit in the life of his Ancestor yet if he thereby besides his own subject during his life to all charges and incumbrances made or suffered by his Ancestors 40. E. 3. 44. 18. E. 4. 25. Sect. 665. Fo. 351. a. Nota that the estate which doth in this case work the Remitter could not have continuance after the decease of the wife and so on the other side if the husband make a discontinuance and take back an estate to him and his wife during the life of the husband this is a Remitter to the wife presently albeit the estate is not by the limitation to have continued after the decease of the husband which case is proved by the reason of the case which our Author here putteth If a man take to wife a woman seised in fee he gaineth by the intermarriage an estate of freehold in her right which estate is sufficient to work a Remitter and yet the estate which the husband gaineth depending upon uncertainty and consisteth in privity 13. H. 4. 6. 18. E. 4. 5. 11. H. 7. 19. 10. H. 6. 11. 7. H. 6. 9. b. For if the wife be attainted of felony the Lord by escheat shall enter and put out the husband otherwise it is if the Felony be committed after issue had 4. Ass p. 4. 4. E. 3. Ass 166. vide S. 58. Also if the husband be attainted of felony the King gaineth no freehold but a pernancy of the profits during the Coverture and the freehold remaineth in the wife 2. If she were possessed of a terme for yeers yet he is possessed in her right but he hath power to dispose thereof by grant or demise and if he be outlawed or attainted they are gifts in Law Pl. Cam. 260. b. Dame Hales case 50. Ass 5. 21. E. 4. 35. 7. E. 4. 6.
7. H. 7. 2. Upon an execution against the husband for his debt the Sheriffe may sell the terme during her life but the husband can make no disposition thereof by his last Will. Also if he make no disposition or forfeiture of it in his life yet it is a gift in Law unto him if he do survive his wife but if hee make no disposition and die before his wife she shall have it again and the same Law is of Estates by Statute Merch. Stap. Eleg. and other Chattels realls in possession l. 8. fol. 96. Matthew Mannings case But if the husband charge the Chattell reall of his wife it shall not bind the wife if she survive him 7. H. 6 1. If a feme sole be possessed of a Chattell reall and be thereof dispossessed and then taketh husband and the wife dieth and the husband surviveth this right is not given to the husband by the intermarriage but the Executor or Administrator of the wife shall have it so it is if the wife hath but a possibility vide Sect. 58. And so it is if the wife be possessed of Chattell reals in auter droit as Executor or Administrator or as Guardein in Socage c. Pl. Com. 294. Osbornes case and fo 192. b. Wrotesleyes Case In the same manner if a woman grant a term to her own use taketh husband and dieth the surviving husband shall not have this trust but the Executors or Administrators of the wife for it consisteth in privity P. 22. El. in Cancell Withams case Chattels reals consisting meerly in action the husband shall not have by the intermarriage vnless he recover them in the life of the wife albeit he survive the wife as a Writ of Right of Ward a valore maritagij a forfeiture of Marriage c whereunto the wife was intituled before the Marriage But Chattels reals being of a mixt nature viz. partly in possession partly in action which happen during the Coverture the husband shall have by the intermarriage c. As if the husband be seised of a rent-service charge or seck in the right of his wife the rent become due during the Coverture the wife dieth the husband shall have the arrerages but if the wife survive the husband she shall have them and not the executor of the husband 13 E. 3. Qu. imp 57. 14 H. 4. 12. F. N. B. 121. 11 R. 2. Account 49. 12 R. 2 Breve 639. 5 E. 3. Exec. 99. So it is of an Advowson if the Church become void during the Coverture he may have a Qu. Imp. in his own name as some hold but the wife shall have it if she survive him and the husband if he survive her 50 E. 3. 13. 28 H. 6. 9. 7 H. 7. 2. Now by the statute of 32 H. 8. cap. 37. if the husband survive the wife he shall have the arrerages as well incurred before the marriage as after l. 4. 51. Ognels case H. 17. El. Rot. 457. in Com. B. Sharps case f. 351. b. But the marriage is an absolute gift of all chattels personals in possession in her own right whether the husband survive the wife or no but if they be in action as debts by Obligation Contract or otherwise the husband shall not have them unlesse he and his wife recover them And of personal goods en auter droit as Executor or administrator c. the marriage is no gift of them to the husband although he survive his wife 21 E. 4. 4. 11 H. 7. 4. 26 H. 8. 7. 43. E. 3. 10. 4 H. 6. 5. 16 E. 4. 8. If an estray happen within the Manor of the wife if the husband dye before seisure the wife shall have it for that the property was not in the wife before seisure 21 E. 3. 8. vide 10 H. 6. 11. But note a diversity between a property in personal goods and a bare possession for if personal goods be bailed to a feme or if she finde goods or if goods come to her hands as executor to a Bailiff and taketh a husband this bare possession is not given to the husband but the action of detinue must be brought against the husband and wife 39 E. 3. 17. Sect. 666. Fol. 351. b. By this case it appeareth That albeit there be no moities between husband and wife yet this is a Remitter presently and standeth not upon the survivor of the wife as some have thought for if the estate gained by intermarriage be a sufficient estate to work a Remitter à fortiori an estate made to the husband and wife shall work a Remitter in the wife And so it is if Tenant in Tail infeoff his issue being within age and his wife in fee and dieth this is a Remitter to the issue presently by the death of Tenant in Tail though some have thought the contrary 21. E. 3. 26. 29. E. 3. 43. 19. E. 3. Remit 14. 35. Ass 12. 26. E. 3. 69. vide 676 Sect. 11. R. 2. Remit 12. 44. E. 3. 17. Sect. 667. Fol. 352. a. Estoppel ie a Conclusion because a mans own act or acceptance stoppeth or closeth up his mouth to alleage or plead the truth l. 2. fo 4. b. Goddards Case Vide S. 41. 693 695 679. Note three kindes of Estoppel 1. By matter of Record viz. by Letters Patents Fine Recovery Pleading taking of Continuance Confession Imparlance Warranty of Attorney Admittance 43. Ass 29. 8. H. 4 7 8. 22. Ass 54. 15. E. 3. Estop 239. 4. E. 3. ib. 133. 2. By matter in writing as by Deed indented by making of an Acquittance by Deed indented or Deed Poll 4. H. 4. 1. 8. H. 7. 6. 13. H. 7. 24. 15. E. 4. 28. 41. E. 3. Estop 12. 12. R. 2. Estop 21 2. by Deseasance by Deed indented or Deed Poll. 8. R. 2. Estop 283. 35. H. 6. 18. 3. H. 6. 16. 16. H. 7. 5. 34. H 6. 19. 14. H. 4. 29. 3. By matter in paiis as by Livery by Entry by Acceptance of rent by Partition and by acceptance of an estate as here in the Case that Littleton putteth whereof Littleton maketh a speciall Observation That a man shall be estopped by matter in the Countrey without any writing Note these few Rules concerning Estoppels 1. That every Estoppel ought to be reciprocal i. e. to binde both parties and this is the reason that regularly a stranger shall neither take advantage nor be bound by the Estoppel 33 H. 6. 19. 50. 30 H. 6 2. 31 E. 3. Estoppel 240. 33. Ass 18. 30. Ass 51. 14. Ass 9. 18. E. 4. 1. Privies in blood as the heir privies in estate as the feoffee lessee c. privies in Law as the Lords by escheat Tenant by the Curtesie Tenant in Dower the Incumbent of a Benefice and others that come under by act in Law or in the post shall be bound and take advantage of Estoppels and that a Rebutter is a kinde of Estoppel 8 Ass 53. Br. Fines 73. 8 H. 617. 21 E. 3. 35. 38. E.
6. 1. F.N.B. 107. For if an Ass be taken by default a quod ei deforceat doth lye and yet the party may have an Attaint for this is no enquest of Office but a Recognition by the Recognitors of an Ass who were returned the first day and not returned upon the awarding of the Ass by default 17 E. 2 Attaint 69. 21 H. 6. 56. 34. H. 6. 12. As to the 3. Ob. That the damages should be the principal because they were at the common Law that is an Argument that they are more ancient but not that they are more principal and treble dammages were not at the common Law for the common Law never giveth more dammage than the losse amounteth unto but are given by the Statute of Glocester but the place wasted is worthier being in the realty then dammages that be in the personalty Et omne majus dignum trahit ad se minus dignum quamvis minus dignum sit antiquius à digniori fieri debet denominatio and it is confessed That in an action of waste against Tenant for life or for years the place wasted is the principal because the statute of Glocester doth give the place wasted and treble dammages at one time for no prohibition or action of waste lay against them at the Common Law and in an action of waste 34 H. 6. 7. waste 50. And in an action of waste if the defendant confesse the action the plaintiffe may have judgement for the place wasted and release the damages which proveth that the damgas are not the principal for a man shall never release the principle and have judgement of the Accessory and an action of waste against Tenant for life is as reall as an action a-against Tenant in Dower and as to the case of 9 H. 5. It was answered that it was an action in the Tenuit which is only in the personalty and then the release of one doth barre both neither could summons and severance lye in that case but in an action of wast in the Tenet either against Tenant for life or yeers the release of the one doth not bar the other and in those two cases Summons and severance doth lye 6 E. 3 47. 48. E. 319. But when these 3. parts were resolved by the Court for the demandant then the counsel of the Tenant moved in arrest of judgement another point viz. That the judgement was given upon a nihil dicit which is alwayes after appearance and not per defaltam and there upon judgement was stayed But to return to Littleton Here he openeth a secret of Law for the cause of this Remitter is for that the Tenant for life in this case might have a quod ei deforceat And the Tenant for life at the common Law was remedilesse because he could not have a writ of right and consequently the feme Covert in this case could not be remitted by the taking of an estate to her husband and her because her right was remedilesse and could have no action But when an act of Parliament or a custome doth alter the reason c. thereby the Common Law it self is alterd if the Act of Parliament and custome be pursued for Alterata causa ratione legis alteratur lex cessante causa ratione leg cessat lex as in this case the statute of W. 2. giving remedy to this feme Tenant for life in this case it giveth her ability to be remitted c. 14 H. 7 11. per Fineux 27 H. 8. 4. 6. Aid 35 H. 6. gard 72. 29 E. 3. per wilbie custome l. 3. fo 86. Justice Windhams cases And Littleton warily puteth his case That the Recovery was had against the feme while she was sole for there was a time when it was a question whether a Recovery being had by defalt against the husband and wife the wife being Tenant for life the said statute gave a quod ei deforceat to the Husband and wife for that the statute gave it a gainst Tenant in Dower and Tenant for life c. and here the Husband is not Tenant for life but seised in the right of his wife and therefore out of the statute and of this opinion is one book * But Apices juris non sunt jura parum differunt quae re concordant * 4. E. 3. 38. 33. E. 3. Avowry 255. The contrary hath been adjudged and so that point is now in peace 5. E. 3. 4. 33. E. 3. 255. F.N.B. 156. a. 5. E. 3. 5. 2. E. 4. 13. F.N.B. 156. c. 33. H. 6. 46. 2. E. 4. 11. 19. E. 4. 2. And the like in case of Resceit for him in reversion But if the husband lose by default and the husband die the wife shall not have a quod ei deforceat for a cui in vita is given to her in that case by a former statute viz. W. 2. ca. 3. These things are worthy of due observation c. and Littleton in our books of another kinde of quod ei deforceat at the common Law upon a disseisin Fo. 356. a. When the reversion is devested the lessor cannot have an action of waste because the Writ is That the Lessee did waste ad exhaeredationem of the Lessor and that inheritance must continue at the time of the action brought And Nota That in an action of waste brought by the lessor against the lessee the Lessee in respect of the privity cannot plead generall * riens en le reversion But he must shew how and by what means the reversion is devested out of him and this holdeth between the lessor and lessee but if the grantee of a reversion bring an action of waste the lessee may plead generally That he hath nothing in the reversion 45. E. 3. 21. 44. E. 3. 34 35. F.N.B. 60. 23. H. 8. waste Br. 138. * 45. E. 3. 20. 8. H. 6. 13 30. H. 6. 7. And yet in some speciall cases an action of waste shall lie albeit the lessor had nothing in the reversion at the time of the waste done As if Tenant for life make a feoffment in Fee upon condition and waste is done and after the lessee reenter for the condition broken in this case the lessor shall have an action of waste And so if a Rishop make a lease for life or yeers and the Bishop die the lessee the Sea being void doth waste the successor shall have an action of waste So if Lessee for life be disseised and waste is done the lessee reenter an action of waste shall be maintained against the lessee and so in like cases Here note that albeit the action be false and feigned yet is the recovery so much respected in Law as it worketh a discontinuâ—â— But if Tenant for life suffer a common recovery or any other recovery by covin and consent between the Tenant for life and the recoverer this is a forfeiture of his estate and he in the reversion may enter c. 5. Ass p. 3.
which issue is found for the Demandant whereupon he recovereth the Tenant albeit Assets do after descend shall never have a scire fac upon the said Judgement for that by his false plea he hath lost the benefit of the said Statute fol. 366. a. Touching the third sufficient hath been spoken before For the last Nota That if the husband be seized of lands in right of his wife and maketh a Feoffment in fee with Warranty the wife dyeth and the husband dyeth this Warranty shall not binde the heir of the wife without Assets albeit the husband be not Tenant by the Curtesie 8 E. 2. gar 81. 18. E. 3. 51. A Warranty may not onely be annexed to Freeholds or Inheritance corporeal which pass by Livery as houses and lands but also to Freeholds or Inheritances incorporeal which lie in grant as Advowsons and to Rents Common Estovers c. which issue out of Lands or Tenements and not onely to Inheritances in esse but also to Rents Commons c. newly created As a man some say may grant a Rent c. out of land for life in Tail or in fee with Warranty for although there can be no Title precedent to the Rent yet there may be a Title precedent to the land out of which it issueth before the grant of the Rent which rent may be avoided by the recovery of the land in which case the grantee may help himself by a Warrantia Cartae upon the especial matter and so a Warranty in Law may extend to a rent c. newly created and therefore if a rent newly created be granted in exchange for an acre of land this exchange is good and every exchange implyeth a Warranty in Law and so a Rent newly created may be granted for owelty of partition 2 H. 4. 13. 30 H 8. Dyer 42. Temps E. 1. Admeasurement 16. 32 E. 1. Vouch 294. 30 E. 1. Exch. 16. 9 E. 4. 15. 15 E. 4. 9. 29 Ass 13. A man seised of a rent seck issuing out of the Manor of D. taketh a wife the husband releaseth to the Terre-tenant and Warranteth Tenementa praedicta and dieth the wife bringeth a Writ of Dower of the rent the Terre-tenant shall vouch for that albeit the release enured by way of Extinguishment yet the Warranty extended to it and by Warranty of the land all rents c. issuing out of the land that are suspended or discharged at the time of the Waranty created are waranted also Vide Sect. 741. 45 E. 3. Vouch. 72. 9 E. 3. 78. 18 E. 3. 55. 30 E. 3. 30. 21 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 10 E. 4. 9. b. 21 E. 4. 26. 14 H. 8. 6. 30 H. 8. Dyer 42. Sect. 698. Fo. 366. b. A Warranty that commenceth by disseisin is so called because Regularily the Conveyance whereunto the warranty is annexed doth work a disseisin The Example that Littleton putteth of this kinde of Warranty have four qulities 1. That the disseisin is done immediately to the heir that is to be bound l. 5. fo 79. Fitzh c. and yet if one brother make a gift in Tail to another and the Uncle disseise the Donee and infeoff another with Warranty the Uncle dyeth and the Warranty descend upon the Donee and then the Donee dyeth without issue albeit the disseisin was done to the Donee and not to the Donor yet the Warranty shall not binde him 31 E. 3. garr 28. The Father the Son and a third person are joyntenants in fee the Father maketh a Feoffment in fee of the whole with Warranty and dyeth the Son dyeth the third person shall not * avoid the feoffment * onely for his own part but also for the part of the Son and he shall take advantage that the Warranty commenced by disseisin though the disseisin was done to another fol. 367. a. 2. That the Warranty and disseisin are simul and semel and yet if a man commit a disseisin of intent to make the feoffment in fee with Warranty albeit he make the feoffment many years after the disseisin yet the Law shall adjudge upon the whole matter and by the intent couple the disseisin and the Warranty together 19 H. 8. 12. l. 5. fo 79. b. 3. That the Warranty c if it should binde should binde as a collateral Warranty and therefore commencing by disseisin shall not binde at all A lessee for years may make a feoffment and a fee simple shall passe so as albeit as to the lessor it worketh by disseisin yet between the parties the Waranty annexed to such estate standeth good upon which the feoffee may vouch the feoffor or his heirs as by force of a lineal Warranty Note there is a feoffment de jure and a * feoffment de facto If the Lord be Gardein of the Land or if the Tenant make a lease to the Lord for years or if the Lord be Tenant by statute Merchant or Staple or by Elegit of the Tenancy and make a feoffment in fee he hereby doth extinguish his Seignory although having regard to the lessor it is a disseisin Vide Sect. 611. Brit. ca. Disseisin 50 E. 3. 12. b. 8 H. 7. 5. 19 E. 2. Ass 400. 3 E. 4. 17. 12 E. 4. 12. 10 E. 4. 18. F.N.B. 201. l. 3. f. 78. Fermors case * Temps E. 1. Counterplea de Vouch. 126. 50 E. 3. ibid. 124. The 4. quality is a disseisin but that is put for an example For if the Tenant dyeth and an Ancestor of the Lord enter before the entry of the Lord and make a feoffment in fee with Warranty and dyeth this Warranty shall not binde the Lord because it commenceth by wrong being in nature of an Abatement sic de similibus Sect. 700. Fol. 367. b. If the purchase were to the Father and the Son and the heirs of the Son and the Father maketh a feoffment in fee with Warranty if the Son enter in the life of the Father and the feoffee re-enter the Father dyeth the Son shall have an Assize of the whole 13 Ass 8. 13 E. 3. gar 24. 25. 37. 22 H. 6. 51. 8 H. 7. 6. But if the Son had not entred in the life of the Father then for the Fathers moity it had been a barre to the Son for that therein he had an estate for life and therefore the Warranty as to that moity had been collateral to the Son and by disseisin for the Sons moity and so a Warranty defeated in part and stand good in part If a man of full age and an Infant make a feoffment in fee with Warranty it is good for the whole against the man of full age and void against the Infant For albeit the feoffment of an Infant passing by Livery of seisin be voidable yet his Warranty which taketh effect onely by Deed is meerly void Temps E. 1. Voucher 207. 39. E. 3. 26. John Londons Case 14. H. 6. Sect. 701. Fo 368. a. b. Duo non possunt in solido rem
wrote A lineal Warranty and Assets was a barre to the estate Tail when Littleton wrote 26 H. 8. c. 13. 33 H. 8. c. 20. 5 E. 6. c. 11. St. pl. Cor. 18. A Common Recovery with a voucher over and a Judgement to recover in value was a barre of the estate Tail when Littleton wrote 12 E 4. 19. Taltarums Case And of Common Recoveries there be two sorts viz. one with a single Voucher and another with a double Voucher and that is more common and more safe there may be more Vouchers over Vid. Sect. 690. vide l. 3. f. 5. Cuppledicks case and fo 94 97 106. vide post ** If the King had made a gift in Tail and the donee had suffered a Common Recovery this should have barred the estate Tail in Littletons time but not the reversion or remainder in the King And so if such a donee had levied a Fine with proclamation after the Statute of 4 H. 7. this had barred the estate Tail although the reversion was in the King 38 H. 8. Tail Br. 41. Pl. Com. fo 555. 29 H. 8. Dyer 52 ** Com. Recoveries c. Vide l. 1. f. 62. Capels case l. 2. f. 16. 52 74 77. l. 6. f 41 32. l. 10. f. 37. Mary Portingtons case But since Littleton wrote a Common Recovery had against Tenant in Tail of the Kings gift c. is no barre c. by the Statute of 34 H. 8. c. 20. And where the words of the Statute be Whereof the reversion or remainder at the time of such recovery had shall be in the King these ten things are to be observed upon the construction of that Act. 1. That the estate Tail must be created by a King and not by any Subject 2. The King must have the reversion at the time of the Recovery 3. The reversion or remainder cannot be barred but where the estate Tail in possession is barred l. 8. f. 77 78. Seignieur Staffords case 4. If a Subject make a gift in Tail the remainder to the King in fee the estate Tail may be barred by a Common Recovery causa patet l. 2. f. 52. Cholâ—leys case 5 So it is if the King had the remainder by discent 6. The word Reversion in the body of the Act hath reference to these words given or granted and Remainder hath reference to these words otherwise provided As if the King in consideration of money or of Assurance of Land or for other considerations by way of provision procure a Subject by Deed indented and inrolled to make a gift in Tail to one of his Servants and Subjects for recompence of service or other consideration the remainder to the King in fee and all this appear of Record this is a good provision within the Statute and the Tenant in Tail cannot by a Common Recovery barre the estate Tail So it is if the remainder be limited to the King in Tail bus if he be limited for years or for life it is otherwise Lib. 2. fol. 16. Wisemans case 7. Where a Common Recovery cannot barre the estate Tail by force of the said Statute there a Fine levied in Fee in Tail for lives for years with proclamation according to the Statute shall not barre the estate Tail or the issue in Tail where the reversion or remainder is in the King by reason of these words in the said act The said Recovery or any other thing or things hereafter to be had done or suffered by or against any such Tenant in Tail to the contrary notwithstanding which words include a Fine levied by such a donee and restraineth the same P. 31. Eliz. Rot. 1645. Notleys case B. C. 8. But where a Common Recovery shall barre the estate Tail notwithstanding that Statute there a Fine with proclamation shall barre the same also 9. Where the said latter words of the Statute be Had done or suffered by or against any such Tenant in Tail the sense and construction is where Tenant in Tail is party or privy to the Act be it by doing or suffering that which should work the barre and not by meer permission he being a stranger to the Act. 10. Albeit the Preamble of the Statute extends onely to gifts in Tail made by the Kings of England before the Act viz. hath given and granted c. and the body of the Act referreth to the Preamble viz. that no such fained Recovery hereafter to be had against such Tenant in Tail so as this word such may seem to couple the body and the Preamble together yet in this case such shall be taken for such in equal mischief or in like case and by divers parts of the Act it appeareth That the makers of the Act intended to extend it to future gifts and so is the Law taken at this day A Recovery in a Writ of Right against Tenant in Tail without a Voucher is no barre of any gift in Tail If Tenant in Tail the remainder over in fee cesse and the Lord recover in a Cessavit this shall not barre the estate Tail for the issue shall recover in a Formedon neither were either of these barres when Littleton wrote 33. E. 3. Judgement 252. 3 H 6. 55. 10 H. 6. 5. 14 E. 4. 5. b. 15 E. 4. 8. F.N.B. 134. b. Pl. Com. 237. 28 E. 3. 95. F.N.B. 28. I. Sect. 702. Fol. 373. b. Nemo praesumitur alienam posteritatem suae praetulisse If a man that is innocent be accused of Felony and it be found that he fled for the Felony he shall forfeit all his goods and chattels debts and duties 3 E. 3. Corone Staf. But yet the general Rule is Quod stabitur praesumptioni donec probetur in contrarium Bract. l. 1. c. 9. It hath been attempted in Parliament that a Statute might be made That no man should be barred by a Warranty collateral but where assets descended from the same Ancestor but it never took effect for that it should weaken common assurances Rot. Parliament 50 E. 3. num 77. Sect. 710 711 712. If husband and wife tenants in especial Tail have issue a daughter and the wife dye the husband by a second wife hath issue another daughter and discontinueth in fee and dyeth a collateral Ancestor of the daughters releaseth to the discontinuee with Warranty and dyeth the Warranty descendeth upon both daughters yet the issue in Tail shall be barred of the whole for in judgement of Law the entire Warranty descendeth upon both of them 5 E. 2. garr 78. l. 8. fo 41. Sims case Here note That when one Coparcener doth generally enter into the whole this doth not devest the estate which descended by Law to the other unlesse she that doth enter claimeth the whole and taketh the profits of the whole Vide Sect. 398. Otherwise it is after the parceners be actually seised the taking of the whole profits or any claim made by the one cannot put the other out of possession without an actual putting out of disseisin And
the Successor but the Executor and the Ward shall be Assets in his hands So it is of Heriots Relief c. 40 E. 3. 14. But if a Church become void in the life of a Bishop and so remain untill after his decease the King shall present thereunto and not the Executor or Administrator for nothing can be taken for a prefentment and therefore it is no Assets 9 H. 6. 58. 11 H. 4. 7. Sect. 741. fol. 388. a. Here the collaterall warranty doth descend upon the issue in tail before any right doth descend unto him wherein this diversity is to be observed vide Sect. 707. where the right is in esse in any of the Ancestors of the heir at the time of the discent of the collaterall warranty there albeit the warranty descend first and after the right doth descend the collaterall warranty shall bind as appeareth in this case of our Author But where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warranty there it shall not bind As if Lord and Tenant be and the Tenant make a feoffment in fee with warranty and after the feoffee purchase Seigniory and after the Tenant cesse the Lord shall have a Cessavit for a warranty doth extend to rights precedent and never to any right that commenceth after the warranty 7 E. 3. 48. 30 Hen. 8. 42. Also a warranty shall never barre any estate that is in possession reversion or remainder that is not devested displaced or turned to a right before or at the time of the fall of the warranty If a Lease for life be made to the Father the remainder to his next heir the Father is disseised and released with warranty and dyeth this shall barre the heir although the warranty doth fall and the remainder cometh in esse at one time lib. 1. fol. 67. Archers Case If there be Father and Sonne and the Sonne hath a rent service suit to a Mill rent charge rent seck common of pasture or other profit appreâ—eâ—â—â—â— out of the Land of the Father and the Father maketh a feoffment in fee with warranty and dyeth this shall not barre the Sonne of the rent common c. quia in tali casu transit terra cum onere and he that is in seisin or possession need not to make any entry or claim and albeit the Sonne after the feoffment with warranty and before the death of the Father had been disseised and so being out of possession the warranty descended upon him that it should not binde him because at the time of Warranty made the Son was in possession Temps E. 1. vouch 296. 31 Ass 13. 22 Ass 36. 41 Ass 6. 33 E. 3. 3. gar 24. .. 10. f. 97. E. Seymors Case So if my collateral Ancestor releaseth to my Tenant for life this shall not binde my reversion or remainder because the reversion c. continued in mee 45 E. 3. 31. 21 H. 7. 11. But if he that hath a Rent Common or any profit out of the land in Tail disseise the Tenant of the land and maketh a feoffment to the land and warranteth the land to the feoffee and his heirs regularly the Warranty doth extend to all things issuing out of the land i.e. to warrant the land in such plight and manner as it was at in the hand of the feoffor at the time of the feoffment with Warranty and the feoffee shall vouch as of lands discharged of the rent c. at the time of the feoffment made Vide S. 698. 21 E. 4. 26. 28 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 30 H. 8. Dyer 42. 30 E. 3. 30. 9 E. 3. 28. 45 E. 3. vouch 72. F.N.B. 145. 14 H. 8. 6. A woman that hath a rent charge in fee intermarries with the Tenant of the land an estranger releasâ—th to the Tenant of the land with Warranty he shall not take advantage of this Warranty either by Voucher or Warrantia Cartae for the wife if the husband die or the heire of the wife living the husband cannot have an action for the rent upon a Title before the Warranty made for if the heir of the wife bring an Assize of Mordanc this action is grounded after the Warranty whereunto the Warranty shall not extend So it is if the grantee of the rent grant it to the Tenant of the land upon condition which maketh a feoffment of the land with Warranty this Warranty cannot extend to the rent albeit the feoffment was made of the land discharged of the rent for if the condition be broken and the grantor be intituled to an action this must of necessity be grounded after the Warranty made But in the case aforesaid when the woman grantee of the rent marrieth with the Tenant and the Tenant maketh a feoffment in fee with warranty and dieth in a Cui in vita brought by the wife as by Law shee may the feoffee shall vouch as of lands discharged at the time of the warranty made for that her Title is Paramount So if Tenant in Tail of a rent charge purchase the land and make a feoffment with warranty if the issue bring a Formedon of the rent the Tenant shall vouch causa qua supra 7 H. 4. â—7 But some do hold that a man shall not vouch c. as of land discharged of a rent service 10 E. 4. 2. b. 28 E. 3. 55. 44 E. 3. 29. Also no warranty doth extend unto meer and naked Titles as by force of a condition with clause of Re-entry Exchange Mortmain consent to the Ravisher c. because that for these an action doth lie and if no action can bee brought there can be neither Voucher Writ of Warrantia Cartae nor Rebutter and they continue in such plight and essence as they were by their originall creation and by no act can be displaced or devested out of their originall essence and therefore cannot by any warranty l. 10. fo 97. 41 Ass p. 46. And albeit a woman may have a Writ of Dower c. yet because her title of Dower cannot be devested out of the originall essence a collaterall warranty of the Ancestor of the woman shall not barre her So it is of a feoffment causa matrim praelocuti 34 E. 3. Droit 72. 21 E. 4. 82. A warranty doth not extend to any lease for years or to any estates of Tenants by Statute Staple Merchant or Elegit or any other Chattell but onely to Freehold or Inheritance And this is the reason that in all actions which lessee for years may have a warranty cannot be pleaded in barre as in an action of Trespasse or upon the Statute of 5 R. 2 c. 21 E. 4. 18. 82. 1 H. 7. 12. 22. 11 H. 7. 15 16. 20 H. 7. 2. b. 14 H. 7. 22. 43 E. 3. 15. per Finchden in Qu. imp 15 H. 7. 9. But in such actions which none but a Tenant of the Freehold can have as
upon the Statute of H. 6. Ass c. there a warranty may be pleaded in barre Although a collaterall warranty be descended yet if the estate whereunto the warranty was annexed be defeated albeit it be by a meer stranger as in this case that Littleton here put by the discontinuee the warranty is defeated and although the discontinuance remain and no Remitter wrought to the heir yet the warranty is defeated and barre removed so as the issue in Tall may have his Formedon and recover the land Sublato Principali tollitur Adjunctum 3 H. 7. 9. b. 16 E. 3. Continual Claim 10. 9 H. 4. 8. Pl. Com. 158. Sect. 743. Fol. 390. a. Si tenant in tail fait un feoffment a son uncle pui◠l' uncle fait un feoffment in fee ovesque gar c. a un auter c. When the uncle taketh back as large an estate as he had made the warranty is defeated because he cannot warrant land to himself And so it is if the uncle had made the warranty to the feoffee his heirs and assigns and taken back an estate in fee and after infeoffed another yet the warranty is defeated for that he cannot be assignee to himself 40 E. 3. 14. 16 E. 3. Vouch. 87. 19 E. 3. Vouch. 122. 17 E. 3. 73 74. 20 H. 6. 29. A man shall not regularly vouch himself as assignee of a fee simple And yet if the Father be infeoffed with warranty to him and his heirs the Father infeoffeth his heir apparent in fee and die he shall vouch himself and be heir in Borough English by reason the act in Law determined the warranty between the Father and the Son 41 E. 3. 25. a. But if a man make a feoffment in fee with warranty to the feoffee his heirs and assignes and the feoffee reinfeoffe the feoffor and his wife or the feoffor and any other stranger the warranty remaineth still 11 H. 4. 20 42. 17 E. 3. 47 49. 18 E. 3. 56. 29 E. 3. 46. 39 E. 3. 9. Sect. 744. ib. A man infeoffeth a woman with warranty they intermarry and are impleaded upon the default of the husband the wife is received she shall vouch her husband c. notwithstanding the warranty was put in suspence 6 E. 2. Vouch. 257. 3 E. 3. ib. 201. 5 E. 3. 16. 178. And so on the other side if a woman infeoffe a man with warranty and they intermarry and are impleaded the husband shall vouch himself and his wife by force of the said warranty 4 E. 2. Vouch. 245 246. An Infant en ventre sa mere may be vouched if God give him a birth and if not such a one heir to the warranty but he cannot be vouched alone without the heir at the Common Law for Processe shall be presently awarded against him Temps E. 1. gard 1. 3. 31 E. 1. Breve 873. 8 E. 2. Vouch. 237. 11 E. 3. ib. 13. 9 H. 6. 24. Pl. Com. Stowels Case per Saunders and Brown Tenant in Tail maketh a feoffment in fee with warranty and disseise the discontinuee and dieth seised leaving Assets to the issue some hold that in respect of this suspending warranty and Assets the issue in Tail shall not be remitted but that the discontinuee shall recover against the issue in Tail and he take advantage of his warranty if any he hath and after in a Formedon brought by the issue the discontinuee shall barre him in respect of the warranty and Assets and so every mans Right saved 21 E. 3. 36. a. b. 38 E. 3. 21. 44 E. 3. 26. 45 E. 3. Title 32. 44 E. 3. ib. 31. 33 E. 3. ib. 4. Sect. 745. Note a diversity In the case of an Appeal the Defendant shall forfeit no lands but such as he had at the time of the outlawry pronounced for that there is no time alledged in the Writ when the Felony was done But in case of Indictment such as he had at the time of the Felony committed for there is a certain time alledged And in the case of the Indictment there is also a diversity to be observed for it shall relate to the time alledged in the Indictment for avoiding of Estates Charges and Incumbrances made by the Felon after the Felony committed but for the mean Profits of the land it shall relate onely to the Judgement as well in this case of Outlawry as in other cases 33 E. 3. Forfeit 30. 38 E. 2. 31. 3 E. 4. 25. 19 E. 4. 2. Pl. Com. 488. b. Felony Ex vi termini significat quodlibet capitale crimen felleo animo perpetratum Glan If a Felon be convicted by Verdict Confession or Recreancy he doth forfeit his goods and chattels c. presently A man is said convict before he hath judgement For Felony by Chance-medley or se defendendo or petit larceny a man shall forfeit his goods and chattels and no lands of any estate of Freehold or Inheritance Stanf. prerog 45. b. 16 E. 3. Cor. 116. By the Law at this day under the word Felony in Commissions c. is included Petit Treason Murther Homicide Burning of houses Burglary Robbery Rape c. Chance-medley se defendendo and Petit larceny Sect. 746 747. It is a generall rule That having respect to all those whose blood was corrupted at the time of the Attainder the Pardon doth not remove the corrupting of blood neither upward nor downward Bract. l. 3. fo 132. c. Brit. fo 215 b. As if there be Grandfather and Son and the Grandfather and Father have divers other Sons if the Father be attainted of Felony and pardoned yet doth the blood remain corrupted not onely above him and about him but also to all his children born at the time of this Attainder But in the case of Littleton if Tenant in Tail at the time of his Attainder had no issue and after his pardon had issue that issue should have been bound by the warranty And if his Father had issue before the pardon and had issue also after and dieth nothing can descend to the youngest for that the eldest is living and disabled But if the eldest son had died in the life of the Father without issue then the youngest should inherit Nota That a judgement against a man for felony is that he be hanged by the neck untill he be dead but implicativè he is punished 1. In his wife That he shall lose her dower 2. In his children they shall become base and ignoble 3. He shall lose his posterity for his blood is stained and corrupted that they cannot inherit unto him or any other Auncestrel 4. He shall forfeit all his lands and tenements which he hath in fee and which he hath in tail for term of his life And 5. all his goods and chattels The wife of a man attainted of high Treason or pety Treason shall not be received to demand Dower unlesse it be in certain cases specially provided for Stan. Pl. Cor. 195. But the wife of a
in tail to A. the remainder to his right heirs A. dyeth without issue the Collaterall heir of A. shall have a writ of right of the seisin of A. 4. E. 3. 16. 17. And so note a diversity between a seisin to cause posses fratris c. for there is required a more actuall seisin and a seisin to maintain a writ of right 40. E. 3. 8. 42. E. 3. 20. 37. Ass 4. 14. E. 4. 24. 7. H 5. 4. 11. H. 4. 11. Sect. 483. 484. Note a diversity where the issue taken goeth to the point of the writ or action there modo and forma are but words of form as in Littletons case of the writ of entry in casu proviso and so is the c. well explained in this Section But otherwise it is when a collaterall point in pleading is traversed as if a feoffment be alleadged by two and this is traversed modo and forma and it is found the feoffment of one there modo and forma is materiall So if a feoffment be pleaded by deed and it is traversed absque hoc quod feoffavit modo forma upon this collaterall issue modo forma are so essentiall as the Jury cannot find a feoffment without deed 9. H. 6. 1. 40 E. 3. 35. 21. E. 3. 4. 22. F.N.B. 205. 206. g. 40. E. 3. 5. 32. H. 8. issue Br. 80. 12. E. 4. 4. Here is another diversity to be observed that albeit the issue be upon a collaterall point yet if by the finding of part of the issue it shall appear to the Court that no such action lieth for the plaintiffe no more then if the whole had been found there modo forma are but words of forme as here in the case which Littleton putteth of the Lord and Tenant appeareth 10. E. 4. 7. 8. E. 4. 15. 20. and 21. E. 4. 3. Merlbr cap. 3. If the matter of the issue be found it is sufficient and this rule holds in criminall causes Pl. Com. 101. v. 6. E. 3. 41. b. 9. H. 7. 3. 13. H. 7. 14. 8. E. 3. 70. 8. Ass 29. 39. 5. H. 4. 22. 7. H. 4. 11. Pl. Com. 92. 3. Mar. Dyer 115. 116. 40. E. 3. 35. 31. E. 3. account 58. 28. Ass 48. The lessee covenants with the lessor not to cut downe any trees c. and binds himself in a bond of 40. l. for performance of covenants the lessee cuts down ten trees the lessor brings an action of debt upon the bond and assigneth a breach that the lessee cutteth down twenty trees whereupon issue is joyned and the Jury find that the lessee cut down ten judgment shall be given for the Plaintiff for sufficient matter of the issue is found for the Plaintiff Sect. 485. 486. An assault battery or taking of goods c. alledged in another county cannot be traversed without speciall cause of justification which extendeth to some certain place as if a Constable of a Town in another county arrest the body of a man that breaketh the peace there he may traverse the county but he must not rest there but all other places saving in the Town whereof he is Constable And so it is of taking of goods the Defendant justifies for damage feisant in another county he must as before traverse But where the cause of the justification is not restrained to a certain place that is so locall as it cannot be alledged in any other Town c. then albeit the action be brought in a forraigne county yet he must alledge his justification in the county where the action is brought In an action upon the case the Plaintiff declared for speaking of slanderous words which are transitory and laid the words to be spoken in London the Defendant pleaded a concord for speaking of words in all the counties of England saving in London and traversed the speaking of the words in London the Plaintiff in his Declaration denied the concord whereupon the Defendant demurres and Judgment c. for the Plaintiff Tr. 30. El. Kings Bench. Inglebert and Jones Com. Pleas. Pasche 38. El. Rot. 1656. It is an ancient Principle in Law That for transitory causes of action the Plaintiff might alledge the fame in what place or County he would It is better that it be turned to a default then the Law should be changed or any innovation made 2. H. 4. 18. 38. E. 3. 1. A man did grant a rent that the grantee should hold the distress against gages and pledges and yet he shall gage delivery for otherwise by this new invention all Replevins shall be taken away 4. E. 3. cap. 5. 4. H. 4. cap. 2. Where the Jury is bound to find as well locall things in many cases as transitory in other Counties Vide lib. 6. fol. 46. Dowdales Case 3. E. 3. Ass 446. 14. H. 4 35. 5. H. 5. 2. 37. H. 6. 2. 7. E. 4. 45. 18. E. 4. 1. 13. H. 7. 17. 2 Mar. Br. att 104. 20. El. Dyer 171. 19. H. 6. 48. 28. H. 8. Dyer 29. 12. H. 8. 1. Reg. by the Common Law if the Defendant hath cause of justification or excuse then can he not plead Not guilty for then upon the evidence it shall be found against him for that he confesseth the battery and upon that issue cannot justifie it but he must plead the speciall matter and confesse and justifie the battery If in battery the Defendant may justifie the same to be done of the Plaintiffs own assault he must plead it specially and must not plead the generall issue and so of the like In trespasse of breaking his close upon Not guilty he cannot give in evidence that the beasts came through the Plaintiffs hedge which he ought to keep nor upon the generall issue justifie by reason of a rent charge common c. 25. H. 8. Br. In Detinue the Defendant pleaded non detinet he cannot give in evidence that the goods were pawned to him for money and that it is not paid but must plead it but he may give in evidence a gift from the Plaintiff for that proveth he detaineth not the Plaintiffs goods 22. H. 6. 33. 20. El. Dyer 276. 2. M. Dyer 212. If two men be bound in a bond joyntly and the one is sued alone he may plead matter in abatement of the Writ but he cannot plead Non est factum for it is his Deed though it be not his sole deed lib. 5. fo 119. Whelpdales case vide c. fo 283. a. Reg. whensoever a man doth any thing by force of a Warrant or Authority he must plead it But all that hath been said must be under two cautions 1. That whensoever a man cannot have advantage of the speciall matter by way of pleading there he shall take advantage of it in the evidence For example the Rule of Law is That a man cannot justifie in the killing or death of a man and therefore he shall be received to give the especiall matter in evidence as that it