discern by the Degree of Parentage in the Lord Coke upon Lit. fol. 15. Yet it may be here to the purpose in hand and expected that something more be said concerning the Descent of Lands Therefore take these Rules following borrowed from Mr. Noy that Learned Expositor of the Law Nota That Lands or an Estate of Inheritance which is to a Man and his Heirs for ever doth always descend for it may not lineally ascend from the Son which is seized in Fee and dieth to his Father but descendeth to his Uncle or Brother and to his Heirs which is the next of the whole Blood for the half Blood shall not Inherit but the most worthy of Blood as of the Blood of the Father before the Mother and of the elder Brother before the other if Born within Espousals See Noys Max. p. 22. But note That if Lands be once setled or entailed in the Blood of the Father the Heir of the Mother shall never have them because they are not of the Blood of him that was last seized Idem page 23. For a Descent shall be intended to the Heir of him that was last actually seized Idem p. 22. And if a Man disseiseth another and dieth seized and his Heir entreth or maketh a Feoffment to another in Fee or in Tail and he dieth and his Heir entreth these Descents put the disseised c. from an Entry Noys Max. p. 34. But a dying seized of a Term for Life or of a Remainder or Reversion doth not take away an Entry for he must die seized in Fee Idem pa. 34 35. The Sister of the whole Blood where her elder Brother did enter after the death of his Father shall inherit before his Brother of the half Blood or any other Collateral Cousin Ibid. Yet notwithstanding such a one may be Heir to a Common Ancestor as if the Land Rent Advowson or such like do descend to the elder Son and he die before any Entry or Receipt of the Rent or Presentment to the Church c. then the Heir of him that was last actually seized shall Inherit as the younger Son c. and the reason is because that in all Inheritances in Possession he which claimeth Title thereunto as Heir ought to make himself Heir to him that was last actually seized Idem p. 22 23. Note The Possession of a Lessee for Years or of a Guardian shall invest the actual Possession and Frank-tenement in the elder Brother Idem p. 23. But if he die seized of a Reversion or Remainder or an Estate for Life or in Tail there he which claimeth the Reversion or Remainder as Heir ought to make himself Heir to him that had the Gift Ibid. And so in case of a Purchase it shall descend to the Heir of the Blood of the first Purchasor As if the Father purchase Land and it descendeth to his Son who entreth and dieth without Heirs of the Fathers part then the Land shall descend to the Heirs of the Mother of the Father or of the Father of the Father as the Heirs may be and not to the Heirs of the Mother of the Son although they are more near of Blood to him that was last seized yet they are not of the Blood of the first Purchasor Ibid. If the Heirs be Females in equal degree as Daughters Sisters Aunts c. they shall Inherit together and are but one Heir and are called Parceners Idem p. 24. But note If a Man be seized of Lands or Tenements to hold to him and his Heirs for ever It is the best Inheritance a Man may have and he may Sell or Grant or make his Will of those Lands but if otherwise he die they do descend to his Heir of the whole Blood ut supra with respect to the several Cases c. See Idem pa. 20. Property by Escheat It where the Owner of Land dieth in possession without Child or other Heir then the Land for lack of Heir is said to escheat to the Lord of whom t is holden And it is to be understood That all Lands are said to be holden of the Crown either immediately or mediately and the Escheat pertaineth to the immediate Lord not to the mediate Lord See Camb. Brit. pag. 93. Cowels Interp. Tit. eod ' The lack of Heir happeneth principally in two Cases Magna Charta 31. Fitz. N. B. fol 143. T. c. the one where the Owner of the Land is a Bastard the other where the Owner is attainted of Treason or Felony for neither can a Bastard have an Heir unless he be his Child nor a Man attainted of Treason or Felony have any Heir though he be his own Child Property by Conveyance 4. Divers Estates by Conveyance Is distributed into divers Estates Viz. for 1. Years 2. Life Viz. in 3. Tail 4. Fee simple And these Estates are created either by Word Writing or Record 1. By Word or Parol By Parol as Leases for Years 2. By Writing By Writing as by Indenture Grant c. 3. By Record By Record as by Fine Bargain and Sale c. But note Nota. That Leases parol are void if they exceed three Years from the making and if they do not exceed yet two third parts of the improved value of the thing demised must be reserved to the Landlord See Stat. 29 Car. 2. Leases for Years 1. Of Leases for Years are mostly made by Indenture by words of Demise Grant and to Farm let with such Conditions and Covenants as the parties agree upon Co. Lit. fol. 45. Bro. Leases 60. 67. h. And such Leases be called Chattels Real They are called Chattels Real c. and are not inheritable by Heirs but go to the Executors or Administrators they be saleable for Debt in the Life of the Owner or in the Executors or Administrators hands by Writ of Execution They be forfeited to the Crown by Outlary Are saleable c. or by Attainder for Felony Treason or Praemunire c. 32 L. Ass pl. 6. See Wentworths Executor pa. 76. If a Lease be for 500 Years it is but a Chattel Extents for Debts are of the same Nature as Leases for Years and cannot be entailed Registr Practical p. 192. Of like nature are Interests gotten in other Mens Lands by Extents for Debt upon Judgment in any Court of Record upon Statute-Merchant or of the Staple or Recognizances and the Tenants thereby are called Tenants by Elegit All these also be called Chattels Real and do go to the Executors or Administrators and not to the Heir and are saleable and forfeitable as Leases for Years are Idem pa. ead See more hereafter Ch. 2. Leases for Lives Are called Freeholds 2. Leases for Lives are Freeholds Bract. lib. 2. c. 9. which are also made by Writing or Record And when by Writing there must be Livery and Seisin given at the making of the Lease the manner of which Livery and Seisin is set
Max. p. 76. quod bene nota Nota Mr. Noy here by Franktenement means him that hath Fee-simple yet a Man is said to have Free-hold if he holdeth either in Fee Fee-Tail or for Term of Life Bract. Lib. 2. cap. 9. The new Law Terms Tit. eod Brit. cap. 32. saith Franktenement is a Possession of the Soil or Services issuing out of the Soil which a Free-Man holdeth in Fee to him and his Heirs or at the least for the Term of his Life See Cow Interp. Tit. Freehold Assignment Defined Assignment is the appointing or setting over a Right unto another And there is an Assignee in Deed and an Assignee in Law Assignee in Deed and Law he in Deed In Deed. is such a one as to whom a Lease Estate or Interest is assigned He in Law In Law is he whom the Law so maketh without any appointment as an Executor is an Assignee in Law Vide Dyer fol. 6. nu 5. The difference betwixt an Assignee and Deputee Assignee and Deputee the difference is said to be for that the Assignee occupieth in his own Right the Deputee in the Right of another Vide Perkins in Grants If the Lessee for Years assign over his Term and die his Executors shall not be charged Executors not charged for Rent due after his death Noyâ— Max. 71. And if the Executors or Administrators of a Lessee for Years assign over their Interest an Action of Debt doth not lie against them for Rent yet it seemeth that the Lessor must have notice of the Assignment Notice of Assignment and consent to it Noy 71. See Moor Rep. Marrow and Turpins Case and 3 Co. Walkers Case If a Lessee for Years assign over his Term the Lessor may charge which of them he will but if he accept the Rent Acceptance of Rent from the Assignee knowing of the Assignment he hath determined his Election Barreth and cannot afterward bring an Action of Debt against the Lessee for Rent due after the Assignment Co. 3. Rep. â—ol 24. Bulstr 2 part 151. Herns Law â—f Convey p. 110. If the Lessor grant away the Reversion after the Assignment of â—he Lessee in this case the Grantee â—annot have an Action against the â—essee for the Rent because there 〈◊〉 no privity between them Privity between the Parties but â—e is left to his remedy against the Assignee Poph. Rep. 55. Brownlows 〈◊〉 part p. 56. An Assignee of Lands Assignee may pay Mony to save the Land if he be â—ot named in the Condition yet â—e may pay the Mony to save his â—and Noys Max. p. 72. But he shall receive He shall not receive none if he be not named and the Tender shall be to the Executor of the Feoffees Ibid. Assignee shall always be intended Who shall be intended an Assignee he that hath the whole Estate of the Assignor that is assignable and if there be an Assignee in Deed an Assignee in Law will not be allowed Noy Ibid. In Assignments it is necessary to have Covenants of the Assignors part to save harmless of former Rents Grants and Charges and for the delivery of former Deeds that he is Owner in Possession and hath power to grant and assign c. That the Assignee may quietly enjoy c. and to make further assurance c. And on the Assignees part to pay the Rents and perform the Covenants c. West part 1. Lib. 3 § 453. But this may be done by Bond. Exchange Exchange Exchange what permutatio Mr. West in his Symb. part 1. Lib. 1. sect 33. saith Permutation or Exchange is a nameless Contract consisting in the thing and consent by which one certain thing is given and exchanged for another and albeit it counterfeits Buying and Selling very near yet because it cannot be discerned thereby whether is the Buyer and whether the Seller it cannot usurp that Title In Exchange both the Estates must be equal Estates must be equal there must be two Grants and in every Grant mention must be made of this word Exchange Noys Max. p. 60. It may be done without Livery of Seisin Without Livery of Seisin if it be in one Shire or else it must be done by Indenture and by this word Exchange or else nothing passeth without Livery Ibid. p. 61. Exchange importeth in the Law Condition of Re-entry Importeth Re-entry and a Warranty Voucher and Recompence of the other Land that was given in Exchange An Exchangeâ— may re-enter upon an Assignee Ibid. Surrender Defined Surrender is an Instrument testifying with apt words that the particular Tenant i. e. Tenant foâ— Life or Years of Lands or Tenements doth sufficiently consent That he which hath the next mediate Remainder or Reversion thereof shall also have the particular Estate of the same in Possession and that he yieldeth or giveth the same to him For every Surrendeâ— ought forthwith to give a presenâ— possession of the thing surrendred unto him which hath such an Estate where it may be drown'd West Symb. part 1. Lib. 2. sect 460. Noys Max. p. 73. Two sorts And there are two manners of Surrenders viz. A Surrender in Deed and a Surrender in Law Now a Surrender in Deed In Deed. is that which is really performed as by Writing and also when the words of the Lessee to the Lessor prove a sufficient assent that he shall have again the thing which he holdeth of his Lessor if the Lesâ—or do agree to it it amounts to 〈◊〉 Surrender in Deed Perkins sect 606 607 608. 6 E. 3. 7. A Surrender in Law In Law is in inâ—endment of Law by way of consequent and not actual as if 〈◊〉 Man have a Lease of a Farm â—nd during the Term he accept â—f a new Lease this Act is a Surâ—ender in Law of the former Lease Perk. ibid. 6 Co. fol. 11. b. And note Agreement or disagreement The Lessee cannot â—urrender to his Lessor against his will but if he to whom the Surâ—ender is made once agree to it he cannot afterwards disagree thereunto Perk. ibid. As if the Lessee for Life or Years of Land say that his will is Example that his Lessor shall enter into the Land which he holdeth of him and shall have the same again if the Lessor agreeth thereunto and by force thereof entreth this is a good Surrender Ibid. A good Surrender And if the Lessee cometh and saith unto his Lessor That he will occupy the Lands no longer Note a Surrender in Deed must have sufficient words to prove assent and agreement and the Lessor by force thereof doth enter this is a good Surrender for the Agreement and Entry hath confirm'd it and so of the like Perk. 109 Herns Law of Con. p. 76. Husband surrendreth Wives Dower If a Woman being Tenant in Dower taketh a Husband who surrendreth the Land which he holdeth for her life and in her Right
after his death she may enter though she had joyn'd in the Surrender and notwithstanding that She is not bound he to whom the Surrender was made died seized of the Land in Fee and his Heir be in by descent Perkins sect 112. She shall be bound But if a Feme-sole who is Lessâ—… for Years of House or Land taketh a Husband who surrendreth anâ— dieth before the Years are out here she shall be bound by this Surrender Ibid. sect 113. Good Surrender And if Tenant in Dower iâ— Land granteth her Estate unto him in the Reversion this is a Surrender Ibid. 623. If one hold Lands for Life How surrender taketh effect the Remainder to a Stranger for Years and if the Lessee for Life surrendreth unto him in Remainder it shall not take effect because that an Estate for Life cannot drown in an Estate for Years Perkins sect 589. If a Copyholder for Life surrender to the use of another Estate detertermined who is â—dmitted by this the Copyholders Estate is clearly determined But if a Copyholder in Fee surâ—ender to the use of another for Life Revived after his Death he shall have â—t again 1 Cro. 148. A Joynt-Tenant Joynt-Tenant cannot surrenâ—er to his Fellow Noys Max. 73. Lessee for Years Lessee for Years cannot surrender â—efore his Term begin though he â—ay grant also he cannot surrenâ—er part of his Lease Ibid. The Husband may surrender the Wifes Dower for his Life Husbands surrender of his Wifes Estate as beâ—ore and her Lease he may surrenâ—er for ever Noy 74. Note How it effecteth That those things which â—annot take effect without Deed â—annot be surrendred without Deed â—xcept in some special Cases By Deed. And therefore if a Man seized of Rents Tithe Common c. granteth the same for Life or Years the Grantee cannot surrender them without Deed Perk. sect 581 582 584. But that those things that may not be granted without Deed may be determined by the surrender of the Deed Surrender of Deed. to the Tenant of the Land Noys Max. p. 73. Confirmation Defined Confirmation is a strengthening and making good of an Estate formerly had and yet voidable or defeasible though not presently void by him which hath a better or longer Estate in the thing granted than the Tenant thereof hath Lit. sect 522. West page 1. Lib. 2. sect 457. And it is made by the words have ratified approved and confirmed similia Defined Noy in his Max. saith Confirmation is when one ratifieth the Possession as by Deed to make his Possession perfect or to discharge his Estate that may be defeated by anothers Entry Noys Max. p. 76. Landlord and Tenant p. 106. saith A Confirmation is the Conveyance of an Estate or Right that one hath unto Lands or Tenements to another that hath the Possession thereof or some Estate therein Defined whereby a voidable Estate is made sure and unavoidable or whereby a particular Estate is increased and â—nlarged and though sometimes it may pass by the words dedi conâ—essi yet the most proper words â—re confirmavi ratificavi approâ—avi which do signifie ratum firâ—um facere supplere omne defectum â—nd he that makes the Confirmaâ—ion is called the Confirmer and â—e to whom 't is made the Conâ—rmee Co. Lit. 295. Bract. 1. Lib. 2. â—8 And there are two kinds of Conâ—â—rmation Two sorts of Confirmations Confirmation in Deed â—he other implied by Law Conâ—irmation by Deed is when the Act done or Deed made is inâ—ended for a Confirmation Conâ—irmation implied Implied is when the Law â—y construction makes a Confirmation of a Deed made to another purpose and both these are always in Writing Co. Rep. 9. fol. 142. Co. Lit. fol. 295. Shephards Touch-stone C. 18. p. 311. Where it effecteth If a Tenant for Life will granâ— a Rent-charge in Fee then hâ— in the Reversion may confirm the same Grant where a Man by his Entry may defeat an Estate there by his Deed of Confirmation he may make the Estate good Noyâ— Max. 77. The words A Confirmation to charge aâ— Estate must have words to shew what Estate he shall have Ibid. A Confirmation cannot chargâ— Cannot effect an Estate that is determined by express Condition or Limitation Ibid. Confirmation to Tenant for Life of his Estate only for an hour shall be good for Life For an hour good for Life and so 〈◊〉 made to a Tenant in Fee it shalâ— be good for ever Ibid. A Lease for Years may be confirmed for a Time or upon Condition Upon Condition or for a piece of the Land Ibid. But if a Franktenement be as afore it shall enure to the whole absolutely Noy Ibid. To confirm the Estate of Tenant for Life to his Heirs Word Heirs to be observed cannot be but by Habendum the Land to him and his Heirs and therefore it is good to have such an Habendum in all Confirmations Ibid. In a Confirmation new Service may not be reserved and old may be abridged Ibid. Confirmation hath relation to release and where he that as before hath a better Title in the Land than the Tenant releaseth to the Tenant this is a Confirmation West pa. 1. Lib. 2. sect 457. A Confirmation made by him that at the time of the making thereof had no Right is void Noys Max. p. 74. And so if a Right come to him afterwards unless it be with Warranty and then it shall bar him of all Right that shall come to him after the Warranty made Ibid. Where voidable But note A Confirmation made to one Disseisor shall be voidable to the other so shall not a Release Ibid. p. 77. Note That if the King for him and his Heirs grants Catalla felon ' fugitivorum or the like which is in grant and dies the Grantee needs no Confirmation of the new King Where necessary but if it be a Fair or Market or the like and it is abused or misused as it may be or if it be a judicial or ministerial Office or Power as to be a Justice oâ— Peace Escheator or the like there he ought to have a Confirmation of the new King See Brooks Tit. Confirmation 19 29. 1 R. 3.4 In a Confirmation it is not amiss in the Premisses of the Deed specially to recite the Estate Estate to be recited of the Tenant which must be confirmed and also the Estate of him that shall confirm and to expresâ— the Consideration thereof if any such be West Symb. part 1. Lib. 2 sect 457. Revocation and New Declaration This seems to be dependant upon some former Deed or Conveyance being a Reservation by Covenant to revoke a Precedent and by Declaration to create a new Estate of the Lands after which the Lands settle accordingly Will. The last of these Conveyances â—s a Will in Writing Wills in Writing which course
☞ The Case was A. le ts to B. for twenty one Years and after the Reddendum is a Covenant Provided always c. That the Lessee shall not let or assign over his Term without the consent of the Lessor first had in Writing B. cannot assign over to D. lest A. enter upon him and oust him because 't is a Condition And although the words are That he shall not let c. Yet if there be any other Covenants between the Reddendum and this Proviso then 't is but a Covenant And if B. do let to D. A. cannot turn him out but have an Action of Covenant against B. but if otherwise A. may turn him out Therefore observe whether it doth follow the Reddendum or no. Nota. Edmund Saunders And note These Conditions precedent or subsequent to the Estate are or may be Affirmative Negative Collateral Inherent Restrictive Compulsory Single Copulative and Disjunctive and make the Estate whereto they are annexed void without or voidable by Entry or Claim or tend to make and enlarge or destroy or clog Estates Seventhly The Conclusion Conclusion what In cujus rei Testimonium In Witness whereof c. This Clause is added as a Preparatory Direction to the sealing of the Deed for sealing is essentially required to the perfection thereof because it doth plainly shew the Feoffors or Parties consent to and approbation of what is therein contained Noy p. 155 156. Nota. And note That the date of the Deed which is the Description of the Time in which the Deed was made either by the Year of the Lord or the Year of the Princes Reign may be placed in the Conclusion and is so most usually in all Deeds Poll but otherwise in Deeds indented most commonly and properly in the beginning of the Premisses as before is touched in several Examples Words to be used in Instruments And here take notice that such words are to be used in the making of Instruments as the nature of the Contract doth require as in Feoffments In Feoffments Feoffavi Dedi or Concessi have enfeoffed given granted c. In Bargain and Sale In Bargain and Sale have bargained and sold c. In a Gift or Grant In Gift or Grant have given granted and confirmed In a Lease In a Lease for Years have demised granted and to farm let In a Release In a Release have remised released and for ever quit claimed In Assignments In Assignments have given granted assigned and set over In Exchange In Exchange have given granted and confirmed and by these Presents c. unto A. B. and to his Heirs and Assigns for ever in Exchange c. In a Surrender In Surrender hath surrendred granted and confirmed In a Confirmation In Confirmation have ratified approved and confirmed c. CHAP. IV. Shewing what Things are required to the making of a good Deed or Instrument AND thus I have laid you down the formal and orderly Parts which ought to be observed in the making of Deeds and Instruments Requisites but it is requisite to let you further know That to the making of a good Deed are required First Legible and formal Writing Legible Writing in Paper or Parchment before sealing and delivery Secondly Capable Persons Capable Persons not disabled by Law but Donors and Donees that are Monks Friers c. are disabled Also Persons attainted of Treason Felony or Praemunire And Infants Madmen Idiots Femes Covert Aliens Deaf Blind Dumb from Nativity Are disabled Defects hindring except in several special Cases and Things For all which by Nature can consent cannot also consent by Law But Age hindreth some and some the Defects of the Body and some the Defects of the Mind so that they cannot consent West Symb. part 1. Lib. 1. sect 4. Age Age. hindreth those that be within the Age of twenty one Years Defects of the Mind those that be of full Age Ibid. Infants which understand not what is done Infancy can therefore neither make Obligation nor Covenant which may take beginning at their Persons Exception except such as be at the Age of Discretion That is Males at the Age of fourteen Years and Females of twelve Years which in some Cases may covenant and be bound as for necessary Food Rayment Schooling Instruction c. or as Executor to another c. Ibid. Lands properly named 3. It must be a Thing to be granted and passed 4. It must be by proper and sufficient Names and Descriptions both of the Grantor Grantee and Thing granted Which must be grantable Grantable in its own Nature and by him that grants it and is either corporeal and immoveable or incorporeal or Chattels Corporeal and immoveable as Houses Lands Woods c. which are grantable in Fee Tail for Life for Years c. and assignable from Man to Man Incorporeal as Rents Services Advowsons Presentations Reversions Remainders Offices Licences Franchises Commons c. Whereof some are grantable at their first Creation but not assignable after As Great Offices of Trust Judicial Offices Licences Authorities c. Some are 1. Assignable always 2. Intirely but not in part 3. Intirely or in part 4. To any Body 5. But to special Persons 6. Some Things incident to others and not grantable without the Things to which they are incident Or Chattels which are either real as Leases for Years present Chattels real or to come Extent c. Or personal Personal as Horses Oxen Plate c. Fifthly Reading the Deed. The true reading or dedeclaring to a blind or illiterate Person Sixthly Sealing and Delivery Sealing and delivery By the Maker or his Attorny absolutely and positively to or to the use of the Party Or conditionally and as an Escrow to another Seventhly To an Honest end To honest Ends. and not by unlawful Contract or made by Force or Fraud Eighthly Due Ceremony as Attornment Livery of Seisin Inrolment c. Deeds executed not alterable A Deed when made read sealed and delivered may be altered or amended in nothing West Symb. part 1. Lib. 1. sect 56. A Writing cannot be said to be a Deed if it be not sealed although it be written and delivered it is but an Escrow Escrow Noys Max p. 55. Insufficient Deed. And if it were sufficiently sealed yet if the print of the Seal be utterly defaced the Deed is insufficient it is not my Deed and though it may not be so pleaded yet it may be given in Evidence Ibid. A Deed taketh effect How it taketh effect by the delivery and if the first take any effect the second is void Ibid. And a Jury shall be charged to enquire of the delivery Delivery and Date but not of the date yet every Deed shall be intended to be made when it doth bear date So if a Lease be made How Deeds shall commence dated the
third of May 1688. to have and to hold for three Years from henceforth or from the making and it is delivered the 20 day of June after in this case the day of the delivery shall be the first day of the Term and must be taken inclusive and the Lease shall end the 19 day of June in the third Year Co. Lit. fol. 46. Co. Rep. 5. fol. 1. 93. Noys Max. p. 55. Herns Law of Conveyances p. 14 15. The delivery ought to be done by the Party himself Delivery how to be made or by his sufficient Attorny and so it shall bind him whosoever wrote or sealed the same Noys Max. p. 55. If one be bound to make Assurance Reading the Deed. he need not deliver it unless there be one to read it to him before Ibid. p. 56. False reading And if any Writing be read in any other form to a Man unlearned it shall not be his Deed Ibid. Deeds how voidable And yet a Deed when well made read sealed and delivered may be void or voidable when got By Force Fraud Corrupt Agreement Or may be marred by Rasure Interlining Addition Breaking the Seal Defacing Judgment of Court c. Voidable Deeds All Feoffments Gifts Grants and Leases made by duress of Imprisonment are voidable and thaâ— not only by the Parties themselves but by their Heirs and those who have their Estates Perkins sect 16 Plow 18. a. Co. Lit. fol. 253. CHAP. V. Shewing the Form and Effect of Livery of Seisin and Attornment c. And what is a Reversion Remainder and particular Estate Livery and Seisin LIvery and Seisin Defined is a Ceremony used in the Conveyance of Lands that the Common People might know the passing or alteration of the Estate that they might surely know in whom the Right thereof remained for their own peace and quietness Perk. 209 210. Bract. Lib. 2. cap. 18. sect 12. Noys Max. p. 58. West Symb. p. 1. Lib. 2. Sect. 251. The usual manner of Delivery of Seisin of Houses Lands Tenements c. is thus The Feoffor and Feoffee How to be executed if they be present or in their absence their Attornies sufficiently authorised in Writing do come to the House or Place whereof such Seisin is to be delivered and there in the presence of sundry good Witnesses declare the cause of their meeting there and then openly read or cause to be read the Deed of Feoffment and Letter of Attorny if by Attorny or to declare the very effect thereof before them in English which being so done the Feoffor or his Attorny taketh a Clot of Earth or a Bough or a Twig of a Tree thereupon growing the Ring or the Hasp of the Door of an House and delivers the same with the said Deed unto the Feoffee or his Attorny saying I deliver these unto you in the name of Possession and Seisin of all the Lands Tenements c. contained in this Deed To have and to hold according to the form and effect of the same Deed Ibid. The Effect By Livery of Seisin the Feoffor transferreth unto the Feoffee all that he hath in things whereof Livery is made according to the State thereupon limited West sect 251. p. 1. Lib. 2. And the date and manner of this Seisin must be endorsed thus Memorandum Indorsement of Seisin That the _____ day of _____ peaceable and quiet Possession and Seisin of the Lands and Hereditaments within mentioned to be granted was had and taken by the within named A. B. and by him was delivered to the within named C. D. in their proper Persons according to the Tenor Form and Effect of the within written Deed in the presence of us A. B. C. D. E. F. Note If by an Attorny By an Attorny to an Attorny or by Attorny to the Lessee himself or by the Lessor to an Attorny then you say By or to A. B. Attorny of the within named C. D. and so of the like mutatis mutandis West Ibid. Note A Man cannot make Livery of Seisin before he hath the Possession Possession necessary Noys Max. 57. Livery of Seisin is requisite Where it is requisite in all Feoffments Gifts in Tail and Leases for Life made by Deed or without Deed Ibid. 59. No Freehold Freehold will pass without Livery of Seisin except by way of Surrender Partition or Exchange or by matter of Record or by Testament Ibid. Time Livery of Seisin must be made in the Life-time of him that made the Estate Ibid. There needs no Livery of Seisin to be given on a Lease for Years Lease for Years but the Lessee may enter when he will Co. Lit. 48. a. And if Livery be given he shall have but an Estate for Years There needeth neither Livery of Seisin nor Writing to an Assignment of Dower Assignment of Dower because it is due of Common Right Idem fol. 35. Dyer 91. Note If there be a Lease for Years They in Possession cannot take it and a Remainder granted over in Tail or in Fee or for Life then there must be Livery given to the Lessee for Years or otherwise nothing passes to him in the Remainder And if the Lessee enter into the Land before Livery and enjoy then the Lessor after his Entry cannot make Livery to him for he is then in Possession and such Persons as have Possession in Lands for Years or for Life c. cannot take by Livery and Seisin of the same Lands for Livery must be given of and ought to bring an immediate Possession For it ought to bring an immediate Possession Lit. Tenures fol. 13. a. Co. Lit. fol. 49. b. Herns Law of Convey p. 25. Co. Rep. 2. fol. 31. The Lessor cannot make Livery and Seisin against the Will of the Lessee Cannot be against the Lessees Will being on the Land but he may grant the Reversion and if the Lessee do attorn the Freehold will pass without Livery of Seisin Noys Max. p. 58. If two several Deeds How it passeth where two Deeds of one thing be made to two several Persons of one self thing it passeth unto him unto whom Seisin is first delivered West Symb. sect 251. part 1. Lib. 2. By Livery of Seisin in one County County the Lands in another County will not pass Noys Max. p. 59. And therefore if they lie in several Counties Several Counties it is convenient that he enter into every parcel thereof and so make Livery in every several parcel for he can give no Possession unto his Feoffee if he have it not in himself at that very instant West ubi supra Livery may not be made of an Estate to be given in futuro Estate in futuro for no Estate of Freehold or Franktenement may be given in futuro but shall take effect presently by Livery and Seisin Noys Max. p. 59. See the Case of a Lease for Years with Remainder ut
down Ch. 4. This Lease for life is not saleable by the Sheriff for Debt but the Land is to be extended Not saleable but extendable at a yearly value Not forfeited except c. to satisfie the Debt neither is it forfeited by Outlary except in Felony nor by any of those means before mentioned to which Leases for years are liable and subject saving only Attainders for Treason Felony or Praemunire and then only to the Crown not to the Lord of the Escheat Vide 25 Ed. 3. Stat. 5. cap. 2. This Estate will go to the Heirs Will go to the Heir if the word Heirs be contained in the Grant if not contain'd Then to the Executor Or Executor in case of no special Occupancy as before Page 2 3. A Lease for life or for years How Leases for Life may be made may also be made by Fine of Record Bargain and Sale or by Covenants to stand seised to uses upon good consideration of Marriage or of Blood See Bro. Fines 106. Note If a Man have a Lease for never so many years determinable upon life or lives which some Persons call a Lease for lives it is but a Chattel Wentworths Executor page 28. Of Entails Entail signifies Fee entailed 3. Entail defined That is Fee scanted or limited and tied to certain Conditions See Cowels Int. Tit. eod These Entails may be created by a Gift with Livery and Seisin to a Man and the Heirs of his Body How created This word Body making the Tail may be restrained to Males or Females to the Heirs of the Bodies of the Husband and Wife to the Body of his Father or Grand-father in Tail special or general When they began Entails began by a Statute in Edward the Firsts time Westm ca. 2. de Donis Conditionalibus for before that Statute Feoffees after they had Issue had power to alien and disinherit the Issue contrary to the mind of the Donees By Statute West ca. 2. And by this Statute they were made so strong as that the Tenants in Tail could not put away the Land from the Heir by any Act of Conveyance or Attainder nor let it or any way charge or incumber it longer than for his own life see the Statute The inconveniencies by that Stature But the inconveniency thereof was very great for by this means the Lands were so surely tied upon the Heir as the Father could not put it from him It made the Son disobedient negligent and wastful Marrying often without the Fathers consent and to grow insolent in Vice knowing there could be no check of disinheritance to restrain him It made also the Owners of entailed Lands less fearful themselves to commit Felonies Murders Manslaughters and Treasons Committing Felonies Murders Manslaughters and Treasons for that they knew that none of their Acts could hurt their Heir in his Inheritance It hindred Men that had entailed Lands that they could not make the least Profit of their Lands by taking Fines or other Improvements Hindred Improvement of Lands For that none upon so uncertain an Estate of the Owners life would give him a Fine of any value nor lay any great Stock upon the Land that it might yield an improv'd Rent And lastly These entailed Lands defrauded the Crown and many Subjects of their Debts Defrauded the Crown and Subjects of their Debts for that the Land was not liable thereto longer than for his own life which made that the King could not safely commit any Office of account to such whose Lands were entailed Hindred the Owners to borrow Mony nor other Men to dare to lend them Mony These Inconveniencies were all remedied by later Statutes The Inconveniencies remedied by Fine c. as namely by the Statutes of 4 Hen. 7. and 32 Hen. 8.36 A Tenant in Tail may disinherit his Son by Fine and Proclamations And by that means also may make it subject to his Debts and Sales Grant by several Statutes And by a Statute made in 26 Hen. 8. cap. 13. Tenant in Tail doth forfeit hiâ— Land for Treason Which make Tenants in Tail forfeit for Treason and they may make Leases And by another Statute made in the 32 of H. 8 cap. 28. He may make Leases gooâ— against his Issue for twenty onâ— years or three lives so it be noâ— his chief Lands or Demeans noâ— a Lease in Reversion nor a lesseâ— Rent reserved than the Tenants for the most part of twenty years before have paid And so as such Lease have not any matter of discharge for doing Wasts or Spoils and by a Statute made the 33 H. 8. Tenants in tailed Lands are liable by Extent for the Kings Debt They are liable to the Kings Debt and are saleable but And by a Statute 13 Eliz. 4. they are saleable for his Arrearages upon his account for his Office not forfeited for Felony So that now it resteth that entailed Lands have these two Priviledges only viz. Not to be forfeited for Felonies nor extended Not extended for Debt after the Parties Death except the Tail be cut off Except the Tail be cut off by Fine or Recovery Note These entails are now usually created by settlements upon Marriage for the benefit of the Posterity and may be cut off as before is shewn And these settlements entailing such Land unto the Issue or Posterity describes the Uses Behoofs Intents Purposes Provisos Conditions Powers and Limitations of the Parties thereto and thereby meant and the Lands are usually made over to Trustees by Fine and Recovery to stand seised to such Uses c. The last and greatest Estate of Land is Fee-simple Fee-simple what which is an Estate absolute to one and his Heirs for ever To one and his Heirs for ever Therefore he that maketh a Lease for life to one or a Gift in Tail may appoint a Remainder after that Estate to another for life or in Tail and a third in Fee-simple but after a Fee-simple he can limit no further Estate And if a Man does not dispose of a Fee-simple by way of Remainder when he maketh the Gift in Tail or for life or for lives then the Fee-simple resteth in himself as a Reversion Co. on Lit. fol. 112 113. Brook Tit. Don. Remainder fol. 245 Glanv li. 7. cap. 1. And the difference between Remainder and Reversion Difference between Remainder and Reversion is this The Remainder is alway a succeeding Estate at the time when the precedent is appointed But the Reversion is the Estate left in the Giver after a particular Estate Note A particular Estate is such as is derived from a General Estate made by him for years life or in tail See hereafter Ch. 5. Bract. lib. 2. cap. 25. Where the Remainder is made with the particular Estate then it must be done by Deed in Writing with Livery and Seisin and if the Giver will after dispose of the
Render what Estates are to be created thereâ—y and of the Reservation of Rents â—omine poenae and Clause of Distress â—nd Services with the Clause of Warranty For which it is to be â—oted That when a Fine is levied to â—ivers Cognizees the Right shall be â—â—mited How the Right shall be limited 3 H. 6. 42. 24 E. 3. 64. to one of them only and â—he Estate limited to his Heirs onâ—y whose Right it is knowledged to â—e Ibid. As this Et est Concordia talis Example scilicet quod â—red ' A. Cogn ' Tenementa pred' cum perâ—in ' esse jus ipsius B. ut illa quae iidem B. C. habent de dono pred' A. Et â—ll ' remisit quiet ' claim ' de se Haeredibus suis prefat ' B. C. Haeredibus ipsius B. c. And likewise the Release Release how to be 21 Ed. 3. 33. and Warranty must be from the Heirs of one of the Cognizors for in a Fine from divers the Fee must be supposed to be in one of them only West Pres Tit. Fines § 30. Of what things it may be And a Concord cannot be of any other thing than is contained in the Writ of Covenant and not of a Foreign thing if it be not consequent Ibid. And if divers joyn in a Fine the Warranty The Warranty how to be made must be by them and the Heirs of one of them which is the Owner of the Land 44 E. 3. 1. And note That Warranties Divers sorts of Warranties be sometimes General That is against all Men some against all except certain Persons some against certain Persons only some against every Cognizor and his Heirs severally some against one of the Cognizors and his Heirs only some of all the Lands in the Fine some of all except part and some of part only certainly expressed West Tit. Fines § 147. He who acknowledgeth the Fine is called Cognizor and he to whom the Fine is levied is called the Cognizee and it is requisite that either the Cognizor or Cognizee be seized of the Lands in the Suit at the time of the levying The Partles must be seised at the time of levying thereof otherwise the Fine is void 41 Ed. 3. 14. 22 H. 6. 13. 3 H. 6. 27 H. 8. 4. 20. 37 H. 6. 34. 22 H. 6. 57. See West Exception Tit. eod unless it be by a Vouchee after he hath entred into the Warranty to the Demandant for he being Tenant in Law may confess the Action but a Fine by Vouchee levied to a Stranger is void 8 H. 4. 5 H. 7. 40. See West Ibid. All Persons Male and Female may be Cognizors Who may be Cognizors except Ideots Madmen Lunatiques Men having the Lethargy Blind Deaf or Dumb and these be hindred by nature Friers Nuns Monks who are dead in Law Exceptions of Persons dead in Law c. and Persons having Joynt-power as a Bishop without the Dean and Chapter a Dean without his Chapter a Parson Vicar Prebendary without their Ordinary a Mayor without his Commonalty Masters of Colledges without their Fellows and the single Members of every Corporation or Society and these be hindred by the Law West ibid. Cautions Of Husband without his Wife A Husband without his Wife ought not levy a Fine of her Lands for she and her Heirs may avoid it after his death 32 H. 8. cap. 28 12 E. 4. 12. 42 E. 3. 20. Care to be taken by Infants Infants i. e. all Persons under one and twenty Years ought to have a special care how they levy Fines for they must be reversed again during their Infancy otherwise they are good and the Court must see them at such reversal thereby to judge of their Age 50 E. 3. 5. 17 E. 3. 52. 78. Drunken and old Doters not capable It ought to be regarded that Drunken-men and old doting Persons be not Cognizors for their Fines are not reversable 17 E. 3. 5. 8. 17 Ass 17. Care to be taken by a Married Woman under Age. A Married Woman under Age ought to take heed that she levy not a Fine of her own Lands for she cannot reverse it during her Husbands Life neither after his Death if she be then at full Age 50 E. 3. 5. Ass pla 53. A married Woman of age Of Age. ought not to levy a Fine but with her right Husband 7 H. 4. 23. 42 E. 3. 20. And she must beware how she with her Husband With her Husband levy a Fine of her Joynture lest she thereby lose her Thirds if the Joynture were well setled before Marriage Dyer fol. 359. pla 49. If she without her Husband Without her Husband levy a Fine of her own Lands wherein she hath Fee-simple it will be a Bar against her and her Heirs unless her Husband avoid it by Entry or otherwise during her Life If he be Tenant by Curtesie Tenant by Courtesie he may reverse it after her Death 17 E. 3. 52. 78. 17 Ass 17. 7 H. 4. 23. If a Woman during her first Husbands Life marry a second Fine by Woman having two Husbands and with him and by his Name knowledge a Fine it shall not bind her 7 H. 4. 22 23. because she is misnamed With her right Husband And if she levy a Fine with her right Husband by a wrong Christian Name she is bound by Estoppel during her Life and the Tenant may plead that she by such a Name levied the Fine 1 Ass pla 11. Brook Fines 117. Of Cognizors Of the Estates of Cognizors who may levy Persons outlawed or waved in personal Actions may alien by Fine 9 H. 6. 20. 21 H. 7. 7. Persons attainted of Felony or Treason may levy by Fine but their Fines are void against the King and the Lord of whom the Lands be holden 9 H. 6. 20. 21 H. 7. 7. Tenants for Life may Tenant for Life may levy a Fine sur Graunt and Release of the Lands which he holdeth for Life to hold to the Cognizee for Life of the Tenant for Life 44 E. 3. 36. But if the Estate be larger it is a forfeiture of his Estate 4 H. 7. Noy 30. Forfeiture of Estates And so the Law is the same of such Fines by Tenant in Tail after possibility Tenant in Dower or by the Courtesie 39 E. 3. 16. But it seemeth to be no forfeiture of a Rent Rent no Forfeiture 2 H. 5. 7. Yet a particular Tenant Particular Tenant as in Dower by Courtesie or for Life cannot grant and surrender their Estate to the Owner of the Reversion or Remainder 17 E. 3. 62. Tenant in Common Tenant in Common or Joynt-Tenant may levy a Fine of his part 26 H. 8. 9. so a Copartner of his part Dyer 334. So may Tenant in Tail Tenant in Tail General or Special Also Tenant in Fee-simple
Deed containing the Description of such a Gift or Grant Attornment necessary in Grants And note That Lands and Tenements and such things as naturally lie in Grant cannot be transferred from one to another by bare Grants of the Parties without the Attornment and Agreement of others the Nature and Effect whereof is after laid down Note A Grant must be certain Certainty Noys Max. p. 61. A Man cannot charge or grant that which he never had Ibid. p. 62. A Thing that cannot begin without a Deed may not be granted without a Deed Things beginning by Deed how they must be granted and every Thing that is not given by delivery of Hands must be passed by Deed Ibid. All Things that are incident Incident to others pass by the Grant of them that they are incident unto Ibid. A Man by his Grant cannot prejudice him that hath an elder Title No prejudice to an elder Title Ibid. 63. If no Estate be expressed in the Grant How the Estate shall be limited and though Livery and Seisin be made yet the Grantee hath but an Estate for Life Ibid. But if the words manifest the lawful Will of the Grantor the Estate shall be taken according to his intent Ibid. All Grants shall have a reasonable Construction The Construction of Grants and taken strongest against him that made them and most beneficial to him to whom they are made Ibid. There must be Attornment Attornment to Grants of Reversion or Rents otherwise nothing passeth except it be by matter of Record Ibid. Lease for Years The next of these Conveyances is a Lease for Years Lease for Years and he that letteth is called the Lessor and he that taketh by the Lease is termed Lessee Certainty thereof A Lease for Years must be for time certain and ought to express the Term and when it should begin and when it should end certainly And therefore a Lease for a Year and so from Year to Year during the Life of J. S. is for two Years Noys Max. p. 65. It may be made by Word or Writing as before Lease at will A Lease from Year to Year so long as both the Parties please after entry in any Year it is a Lease for that Year c. till warning be given to depart 14 H. 8. 16. Noy Ibid. A Lease beginning from henceforth How they shall commence shall be accounted from the day of the delivery Ibid. From the making From the making shall be taken inclusive from the day of the making or of the date exclusive Ibid. If the Habendum of a Lease be for Term of one and twenty Years without mentioning when it shall begin it shall then begin from the delivery From the delivery Co. Lit. fol. 46. Herns Law of Conveyances p. 15. 131. If Lands descend to the Heir before his Entry Lease made by Heir before Entry he may make a Lease thereof Noys Max. p. 65. Tenant for Term of Years may enter When the Tenant may enter when he will the death of the Lessor is no let and he may grant away his Term before it begin Noys Max. p. 30. But before he enter he cannot surrender When surrender nor have any Action of Trespass nor take a Release Ibid. He is bound to repair Repairs the Tenements And if Tenant for Life or Years Term forfeited granteth a greater Estate than he hath himself he doth forfeit his Term Ibid. View of Reparations and Distress Nota The Lessor may enter to see what Reparations or Wast there is and he may distrain for his Rent or have an Action of Debt Ibid. The nature of Leasts And note also That Leases for Life or Years are of three Natures some be good in Law some voidable by Entry and some void without some in futuro and some in praesenti of all which and oâ— the Dates Commencements Habendums continuance and determination of Leases you may find many Examples in a Treatise for that purposed collected called Landlords Law p. 137. c. See more of the before Ch. 1. Of a Release Release defined A Release is an Instrument whereby Estates Rights Titles Entries Actions and other Things be sometimes extinguished sometimes transferred sometimes abridged and sometimes inlarged West Symb. part 1. Lib. 2. § 466. A Release made after a Lease for Life or Years amounteth to a Feoffment It amounteth a Feoffment as if I let Land to a Man for Years or Life and after release to him all my Right in the Land Example to have and to hold to him and his Heirs hereby he hath a Fee-simple Co. Lit. f. 207. a. Finch L. 1. c. 5. pag. 67. Dyer 263. But if I Release to him all my Right which I have in the Land Words to be observed without using any Words in the Release then here he hath only an Estate for Life Ibid. And note That a Release is the giving or discharging a Right or Action which a Man hath or claimeth against another or out of or in his Lands Noys Max. pa. 74. And a Man may not release upon a Condition nor for time How a Release shall enure nor for part but either the Condition is void and the time is void and the Release shall enure to the Party to whom it is made for ever for the whole by way of Extinguishment Ibid. p. 57. But such Release by Deed indented is good Ibid. Words to be observed A Release to charge an Estate ought to have these words Heirs or words to shew what Estate he shall have Ibid. Void Release A Release made by him that at the time of the making thereof had no Right is void Ibid. page 74. Void Release And a Release made to him that at the time of the Release had nothing in the Lands is also void it behoveth him to have a Freehold or a Possession or Privity Ibid. p. 75. The common Course of passing Land by Lease and Release For which purpose it is now the course in passing Land by Lease and Release first to execute a Lease for a Year or the like Term to the intent and purpose that the Lâ—ssee may be in the actual possession of the Lands intended to be released and thereby and by force and vertue of the Statute 27 Hen. 8. for transferring Uses into Possession be enabled to take a Grant or Release of the Reversion and Inheritance of the said Land to the use of him and his Heirs A Release made to him that hath a Reversion Where it helpeth the Free-hold or a Remainder in Deed shall serve and help him that hath the Franktenement so shall a Release made to a Tenant for Life or a Tenant in Tail How it shall inure inure to him in the Reversion or Remainder if they shew it and so to Trespassors and Feoffors but not to the Disseisors Noys
viz. Know all Men by these Presents Or thus To all Christian People c. and may be made in the first Person or third Know all Men by these Presents First Person That I A. B. of c. Gent. To all Christian People to whom these Presents shall come A.B. of Third Person c. sendeth greeting Whereas c. Be it known to all People c. This present Writing witnesseth c. cum multis aliis any of which Forms may be in the first or third Person And each of these Deeds may consist of Grants or Discharges Grants which are constitutive Grants constitutive and creating what was not before as the first Grant of a Way of a Rent or of an Estate in Tail for Life or for Years with Warranty or without and are either absolute or conditional or conveying whereby Estates already or formerly made are conveyed to others Of Discharges Discharges which are remissory or liberatory releasing or discharging something in being as Releases Defeazances Acquittances c. And most of such Deeds and Instruments by which Lands pass as afore described have formal and orderly Parts viz. The parts of Deeds The Premisses 1. The Habendum 2. The Reddendum 3. The Warranty 4. The Covenants 5. The Conditions 6. The Conclusion 7. First the Premisses The Premisses what unto the Habendum wherein is included 1. Grantor 2. Grantee 3. Thing granted By apt and proper Names and Descriptions which are certain in themselves or which by Reference may be reduced to a certainty 4. Exceptions Words of Exceptions by these or the like words Excepted Excepting Besides Saving Save only c. which must be first of some particular out of a general secondly part of what is granted and not all thirdly that which may be severed from the thing granted and not an inseparable incident thereunto 5. A Recital of something antecedent Nota In many Deeds in the Premisses there may be no occasion of Exception or Recital some may require either and some both as in the making of a new Lease reciting the surrender of a former Lease and excepting the Bodies of Oak Trees or a Room out of a House or of Woods c. as the Case requires Nota Exceptions of part ought always to be of such things which the Grantor had in Possession at the time of the Grant Noy page 69. Wests Symb. Lib. 1. sect 48. To which may be properly added the date and consideration as Monies Goods Natural Affection similia The Premisses saith he is commonly all that precedeth the Habendum or Limitation of the Estate wherein are to be considered first the Person contracting next the Thing Matter or Fact whereof the Contract is to be made and then the Words with which the said Contract is to be described for the Persons are the very efficient as the Considerations are the motive Causes for which and by whose consent the Instruments are agreed upon and made Noys Max. page 133. In the Premisses are first the direct nomination as well of the Feoffor as of the Feoffee together with their Places of Residence Habitation or Dwelling and their Qualities Estates Additions or Conditions Secondly the certain expressment and setting down of the Lands conveyed Secondly the Habendum or consequence of Deeds whose Office is to set down 1. Grantee 2. Certainty of the Thing Estate and Life granted and to what use Wests Symb. Lib. 1. sect 52. The later part of Instruments and Consequence thereof is all that necessarily followeth the Premisses and that is the Habendum In which is limited and expressed what Estate and Property the Party passive shall have The Habendum what as Fee Tail c. and that is twofold namely the Limitation of the Estate and of the Use reciting withal the Thing granted by some sufficient general Name as Habendum Tenendum the said Mannor Messuage or Tenement aforesaid with the Appurtenances as the case requireth and as it is granted in the Premisses unto the said J. S. his Heirs and Assigns for ever to the use and behoof of the said J. S. his Heirs and Assigns for ever Noy 150. The Office of the Habendum is to name again the Feoffee and to limit the certainty of the Estate and it may and doth sometime qualifie the general Implication of the Estate which by construction and intendment of Law passeth in the Premisses and the Premisses may be inlarged by the Habendum but not abridged it is also required of the Habendum to include the Premisses Noy page 54. The Habendum Habendum void must not be repugnant to the Premisses if it be it is void and the Deed will take effect by the Premisses Ibid. That is the precedent Estate given by the Premisses shall stand and the Estate by the Habendum shall be void As where a Feoffment is made to one and his Heirs by the Premisses of the Deed Habendum to him and his Heirs during the Life of I. S. or if a Feoffment be made to one and his Heirs by the Premisses of the Deed Habendum to the Lessee for the Term of his Life Now these words of Limitation during the Life of I. S. or during the Lessees Life as aforesaid are void words because the Habendum is repugnant to the Premisses Landlord and Tenant page 139. 2 Co. Buckleys Case The Habendum sometimes doth qualifie and control the general Implication c. as for example A Lease to two Habendum to one for Life the Remainder to the other for Life this Limitation doth alter the general Implication of the Joynt-tenancy which would have been without the Habendum and the Habendum is not contrary to the Premisses for in the Premisses no certain Estate is passed See Buckleys Case in the second Book of Sir Edward Cooks Reports But Landlord and Tenant Landlord and Tenant fol. 140. citing this very Case to shew that the Habendum doth control and qualifie the general Implication saith And therefore the Habendum is void in that the Premisses do make them Joynt-tenants and the Habendum would sever the Joynture and make the one to have all during his Life and the other the whole after him and directs to Plow fol. 133. and Herns Law of Convey p. 2. But Quere Quaere of this And what hath been aforesaid may be sufficient to shew the Office of the Habendum To which also let us joyn the Tenendum Tenendum what which before the Statute of Quia emptores terrarum 18 Ed. 1. was usually in Feoffments expressed from the Feoffors and their Heirs and not of the Chief Lords of the Fee c. whereby there happened divers Inconveniencies to the Lords as the losing of their Escheats and Forfeitures c. Whereupon it was granted provided and enacted That every Free-Man for the future might sell his Lands or Tenements or part thereof at his Will so that the Feoffee should hold
Covenant Grant Promise and Agree expressing the thing agreed upon by apt words and there be Deeds made altogether of Covenants whereof you may see good store in West Lib. 2. sect 57 58 59 60 c. Nota All Covenants are to be made on either side according to every several Contract as to be saved harmless or discharged to be seized in Fee c. To have power to sell to be Owner of the Tenements or Chattels sold to make further assurance for quiet enjoyment c. Sixthly The Conditions which are procedent or subsequent to the Estate Conditions what A Condition is generally a Rule Manner or Law annexed unto Mens Acts staying and suspending the same and making it uncertain whether they shall be or no For a Condition is properly said to be when any thing is referred to any incertain Chance West Symb Lib. 2 â—â—ct 110. which may happen or not happen The Words of a Condition The words of a Condition are Sub Conditione Ita quod Si Contingat Proviso semper i. e. Under Condition So that If it shall happen Provided always and the like But the words To the effect with that intent to pay c. do not make a Condition in Feoffments and Grants if it be not in the Case of the King or in the Case of a Will Landlord and Tenant page 34. Note Nota. There are two manners of Conditions one expressed by Words and called a Condition in Deed the other implied by Law and called a Condition in Law A Condition in Deed Condition in Deed. or express Condition is knit and annexed by express words to the Lease or Grant for example If I make a Lease for Years reserving Rent to be paid at such a Feast upon Condition That if the Lessee fail of payment at the day that then it shall be lawful for me to re-enter A Condition implied or Condition in Law Condition in Law is when a Man grants to one the Office to be Keeper of a Park Steward Bailiff or such like for Term of Life here the Law implieth a Condition That if he doth not truly and faithfully execute his Office then it shall be lawful for the Grantor to discharge him thereof Nota. Note also All Conditions are as aforesaid either precedent and going before the Estate and are executed or else they are subsequent and following after the Estate and to be executed Condition precedent Condition precedent doth gain and get the Thing or Estate made upon such Condition by the performance of the same as when an Estate is made to a Man for Life upon Condition That if the Lessee for Life will pay to the Lessor 20 l. at such a day then he shall have Fee-simple here the Condition precedes and goes before the Estate in Fee-simple and upon the performance of the Condition the Lessee doth gain and get the Fee-simple if Livery and Seisin were given Error was brought in Ejectment out of C. B. in a special Verdict The Case was John Hamond having two Sons John and Thomas being seized of a Copyhold Estate in Fee in nature of Burrough English surrenders to the use of himself for Life and after his Decease to the use of his Son John and his Heirs and Assigns for ever if he attain the Age of twenty one Years Provided That if my said Son John do die within Age then it shall go to my right Heirs Holt pro Quer ' in Error ' said The Question was If it was a Condition precedent or subsequent and held it was a Condition precedent and cited Plowden 35. and said A subsequent Condition is to be taken strictly and must have proper words but a precedent Condition may not Lit. 330. 1 Inst 103. Lit. sect 301. Jones Spring and Cesar fol. 389. Pollexfen pro Def. said There may be a Remainder upon a Condition precedent and Judgment was affirmed Mich. 26 Car. 2. Bockeril versus Hamond Ro. 120. A Condition subsequent Condition subsequent doth keep and continue the Thing or Estate made upon Condition by the performance thereof as when one grants to A. B. his Mannor of G. in Fee-simple upon Condition that the Grantee shall pay to him at such a day 20 l. or else that his Estate shall cease here the Condition is subsequent and following the Estate in Fee-simple and upon the performance thereof doth keep and continue the Estate Terms del Ley verb. Condition Void Conditions Nota If an Estate he made and the Condition against the Law the Estate 's good the Condition void Noy p. 78. If the Estate beginneth by the Condition then both are void Ibid. Conditions repugnant the Estate good the Condition's void Ibid. Conditions impossible are void and the Estate good Ibid. It shall not enlarge any Estate Ibid. No Man shall take advantage of a Condition except he be privy or party to it When the word Proviso Of the Word Proviso maketh a Condition it must have these three Qualities First it must not depend upon another Sentence or have Reference to any other part of the Deed for if it do then it is but a Qualification or Limitation of the Sentence or of that part of the Deed When and how it maketh a Condition as Provided that the Person of the Grantee shall not be charged Secondly it must be the word of the Bargainor Feoffor Donor Lessor c. Thirdly it must be compulsory to inforce the Bargainee Feoffee Donee Lessee c. to do an Act and where these Things concur in a Proviso it doth make a Condition in what place soever it be placed For cujus est dare ejus est disponere Landlord and Tenant p. 61. But note the Case put afterwards Nota Sometimes the word Proviso or Provided doth make a Covenant sometimes an Exception sometimes it is taken for a Reservation sometimes for an Explanation Ibid. When a Lessor letteth Lands Provided that the Lessee shall not alien without the assent of the Lessor under pain of forfeiture Proviso maketh a Condition here it is a Condition Ibid. If a man have two Mannors both of them named Dale and he leaseth his Mannor of Dale to one Provided that he shall have the Mannor of Dale in the occupation of A. B. This Proviso is an Explanation An Explanation Ibid. If a man lease a House and the Lessee covenants that he will repair it provided always the Lessor is contented to find the great Timber This Proviso is a Covenant A Covenant Ibid. If a man lease his House to D. provided he will have a Chamber thereto belonging to himself This Proviso is an Exception An Exception of the Chamber Ibid. If I make a Lease of Lands rendring Rent at such Feasts as J. S. shall name provided that the Feast of St. John Baptist shall be one here the Proviso is taken for a Reservation A Reservation Vid. Land-Lord and Tenant p. 61 62.
supra And note that Livery of Seisin is of two sorts Livery of Seisin is two-fold viz. in Law and in Deed Noys Max. p. 160. Livery of Seisin in Law is termed Livery of Seisin within the View which is when a Man maketh a Deed of Feoffment and delivers Seisin within the View the Feoffee being afraid to enter Ibid. 163. And note This Livery within View Livery within the View is good if the Feoffee do enter in the Life-time of the Feoffor Idem p. 59. And yet it is said that a Livery in View or Law may sometimes be perfected by an Entry in Law Perfected by Entry in Law which is when the Feoffee being afraid to enter as before maketh continual Claim of the same 38 Ass pl. 23. And it is said that no Man can constitute another to receive Livety for him within the View No Attorny in Livery in View nor yet to deliver for none can take by force or virtue of a Livery in Law but he that taketh the Freehold himself Et sic e contra Noys Max. p. 163. Livery and Seisin in Deed Livery in Deed. is actually done either personally or by Attornies as is before explained Attornment The end of Attornment is to perfect Grants Defined and therefore may not be made upon Condition or for a Time Noys Max. p. 64. but it shall enure to the whole absolutely Attornment is the Agreement of the Tenant to the Grant by Writing or by Word as to say I do agree to the Grant made to you or I am well contented with it or I do Attorn unto you or I do become your Tenant c. or delivering a Penny unto the Grantee by the Tenant by way of Seisin of a Rent and to pay or do but one Service only in the name of the whole it is good for all Ibid. p. 63 64. Where it effecteth Lands and Tenements and such things as naturally lie in Grant cannot be transferred from one to another by bare Grants of the Parties without the Attornment and Agreement of others as of the Tenant to the Grant of the Seigniory or of a Rent or the Agreement of the Donee in Tail or of the Tenant for Life or Years to a Grant of a Reversion or Remainder made by the Donor or Lessor to another as Where necessary Where he that hath an Estate in Reversion or Remainder after an Estate for Life or Years doth grant or give the same away here the Tenant of the Land must give his consent to such Grant or Gift or else generally the same is not good and this yielding of consent is called Attornment See Terms del Ley Co. Lit. fol. 309. pl. 25. Attornment is either Actual or in Law Twofold Actual Actual is an expressed consent to the Grant as before Lit. 551. Plow 25. a. 344. a. Attornment in Law In Law is where the Person that ought to attorn doth not expresly declare his consent but doth some other Act as in Law sufficiently implieth an Agreement as if a Lease be made for Life or Years and after he that hath the Reversion or Remainder granteth the same to his Lessee who accepteth the Deeds These and such like be Attornments in Law West Symb. Lib. 2. sect 383. To the making good of an Attornment Requisits to make a good Attornment where it is requisite divers Things are required 1. It must be made by the Person that ought to make it 2. It must be made to the Person that ought to take it 3. It must be made in due time 4. If it be an express Attornment the Tenant must have notice of the Grant of the Reversion c. to which he must Attorn but of Attornment in Law there notice in all Cases is not necessary 5. It must be done in such manner as the Law doth prescribe And observe as before that it may be made either by Words or Deeds By Word or Deed. without Writing or by Deed or Writing and this is the safest way By Word And any Word written or spoken by the Tenant after he hath knowledge of the Grant of the Reversion which do import an Assent or Agreement to it will make a good Attornment in Fact or in Deed as to say I do Attorn or turn Tenant to you according to the Grant or if he do pay all or any of the Rent or do any part of the Service as before this is a good express Attornment and is best of all when it is made by Words and Deed Best by Word and Deed both or Sign both for then the Witnesses will best remember it Co. Lit. fol. 309 310 315. Plow Com. 344. Land-lords Law p. 127. 128. When to be made Where Attornment is necessary it must be made in the Life-time of the Parties Grantor and Grantee for if either of them die before Attornment be made the Grant is void but if the Tenant die before he Attorn he that hath the Estate may Attorn and it is good or if the Tenant grant over his Estate his Assignee may Attorn Co. Lit. fol. 315. a. Perkins sect 231 263. Lit. Tenures 110. a. Co. Rep. f. 8. Noys Max. p. 64. It seems that Attornment is not necessary Where necessary but to have Avowry or an Action of Wast 2 E. 6. Brook 45. Note Where not That when no attendency nor payment is to be made by the Tenant there the thing passes without Attornment 31 H. 8. Brook 59. Where Attornment is necessary in Law or in Deed Note See Land-lords Law p. 129 130 131 132 133 134 135 136. This Attornment must be indorsed on the Deed or else declared by a Deed and may be done in this manner Indorsement for one Tenant Memorandum That the within named A. B. being Tenant for Term of Life c. or being present Tenant c. as the Case requires of the Lands Tenements and Hereditaments c. understanding the effect of the within written Grant thereof made unto the within named C. D. did the _____ day of _____ Anno _____ assent and agree unto the same Grant in every respect as the same is within written and did therefore Attorn and for proof thereof did give unto him the said C. D. in the name of Attornment the Sum of 6 d. in the presence of us whose Names are subscribed A. B. C. D. E. F. c. Or thus by divers Tenants themselves For divers Tenants We whose Names are hereunder subscribed being the present Tenants c. of c. understanding c. do assent c. and do therefore Attorn and in Testimony of such Attornment each and every of us did give c. and also have hereunto subscribed our Names the _____ day of _____ Anno Domini 1688. Witness A. B. C. D. E. F. Or thus Memorandum That the Persons whose Names are under written did the _____ day of _____ Anno Domini
1688. Attorn and become Tenants unto the above named A. B. according to the purport of the Lease within mentioned Notice of the Grant having notice of the said Grant and for proof thereof every one of them did give unto the said A. B. one Peny in the Name of Attornment Witness hereto G. H. I. K. L. M. Here let the Tenants set their Names A. B. C. D. E. F. It may be indorsed together with the Livery of Seisin Indorsed with Livery of Seisin to an Attorny thus Memorandum That Possession and Seisin of the Lands and Tenements within mentioned was taken by c. and afterwards delivered to the within written S. P. 10. die Junij Anno Domini 1688. to the use within written And also the same day the within named J. V. Tenant of the Premisses for the Term of his Life Quere if the Tenant that attorns be named in the Deed otherwise that Clause to be left out did attorn Tenant to the said S. P. according to the Tenor of this present Deed and the said J. V. did give unto the said S. P. one Peny in the name of Attornment in the presence of It may be declared by Deed Poll thus Attornment declared by Deed Poll. To all People c. I A. B. of c. send greeting Whereas I the said A. B. have and hold for the Term of my Life one Tenement with the Appurtenances lying and being in c. the Reversion of which said Tenement should belong to one C. D. and being at present satisfied that the said C. D. hath by his Deed bearing date c. granted bargained sold and confirmed unto E. F. of c. the Reversion of the said Tenement as by the said Deed may appear Know ye that I the said A. B. Tenant of the said Tenement of my free will have attorned unto the said E. F. by payment unto him of one Peny in the name thereof and do by these Presents as much as in me lies ratifie and confirm unto the said E. F. the Reversion aforesaid In witness c. See West Symb. part 1. Lib. 2. sect 383 384 385 c. Note A voluntary Attornment where it is needful may be made by an Infant Voluntary Attornment by an Infant or one that is Deaf and Dumb may do it by signs but one that is not Compos mentis cannot make an Attornment Co. Lit. fol. 315. Co. Rep. fol. 84. Note It must be certain Certainty Co. Lit. 310. In all Cases for the most part where there is no means provided by Law to compel the Tenant to attorn in such Cases Attornment Deed or in Law is not necessary Where it needs not as in the grant of a Seigniory c. by Letters Patents from the King or where such things are granted by matter of Record from a Subject to the King but a Seigniory a Rent-charge a Remainder or a Reversion will not pass without Attornment but by matter of Record Co. Lit. 314 321. Co. 6. Rep. 68. Noys Max. p. 64. Attornment necessary upon a Devise Devise Noys Max. p. 65. In all Cases where tho Grant is in the personalty there needs no Attornment Needless as in Annuities which do charge the Person only and not the Land And in all Cases where there is an Attornment in Law there needs none in Deed M. 3. Jac. in C. B. agreed in Curnocks Case Noy saith in his Maxims p. 65. That if the Tenant have true notice of all the Grant then such Attornment is void Void Attornment But quere Common of Pasture for a certain number or Common of Estovers certain will pass by Granâ— without Attornment Needless for where there is no Tenure Attendance Remainder Rent or Service to be paid or done Attornment is not necessary 31 H. 8. 59. Kitchin 103. a. Note Attornment is a solemn Act and ought to be done Time when it must be done so that notice may be taken of it and therefore Attornment after Sun-set is not good for it shall not be presumed that notice can be taken in the Night M. 23 Car. 1. in B. R. Registr practicale p. 30. Concerning Possessions The difference between Possession and Seisin Difference of Possession and Seisin is A Lessee for Years is possessed Possession what and yet the Lessor is still seized and therefore the Terms of the Law are That of Chattels Seisin what a Man is possessed whereas in Feoffments Gifts in Tail and Leases for Life he is called seized Noys Max. page 20. Of Estates And note that all Estates that have their being are in Possession Reversion Remainder or in Right but of all these Possession is the principal Idem page 119. There are two Degrees of Possession in Law and Deed. In Deed is the actual Possession Possession in Deed. In Law In Law is that Possession which the Law it self casteth upon a Man before any entry or pernancy of the Profits Example As where the Father dieth seized of Lands in Fee and the same is to descend to the Son as his next Heir in this Case before any Entry the Son hath a Possession in Law Ibid. p. 120. And so of a Reversion expectant Reversion Expectant c. or a Remainder dependent upon a particular Estate for Life Example As if Tenant for Life die he in Reversion or Remainder before his Entry hath only a Possession in Law And note That all manner of Possessions that are not Possessions in Fait or Deed are only Possessions in Law Noys Max. p. 120. Of a Particular Estate A Particular Estate is such as is derived from a General Estate Defined by seperation of one from the other Noys Max. p. 117. As an Estate Tail for Life or for Years created by Gift or Grant out of a Fee-simple is in the Donee or Lessee a particular Estate in Possession derived and separated from the Fee-simple Ibid. similia And of particular Estates Twofold some are created by Agreement between the Parties and some by Act of Law By Agreement By Agreement as those before specified By Law By Law as Estates in Tail after possibility of Issue Extinct Estates by the Courtesie of England Dower c. for in Dower the Party is compellable by Law to compleat the Estate Ibid. Of a Remainder Defined A Remainder is the Residue of an Estate at the same time appointed over and must be grounded upon some particular Estate given before granted for Years or Life and so forth Noys Max. p. 31. When it begins And ought to begin in Possession when the particular Estate endeth there may be no mean time between either by Grant or Will Ibid. Where cannot be No Remainder can be made oâ— a Chattel Personal A Remaindeâ— cannot depend on a Matter ex posâ— facto to be done in futuro as upon Estate Tail upon Condition thaâ— if the Tenant
in Tail sell theâ— the Land to remain to another is avoid Remainder Ibid. In every Remainder five Thing are requisite Five Things to be observed 1. That it depend upon somâ— particular Estate Ibid. page 123. 2. That it pass out of thâ— Grantor Donor or Lessor at thâ— time of the creation of the particular Estate whereon it must depend Ibid. 3. That it vest during the particular Estate or at the instant time of the determination thereof Ibid. 4. That when a particular Estate is created there be a Remnant of an Estate left to the Donor to be given by way of Remainder Ibid. 5. That the Person or Body to whom the Remainder be limited be either capable at the time of Limitation thereof or else to be thereof capable during the particular Estate See Noys Max. page 124 125 126 127. where a Remainder taketh effect and it is void Of Reversion A Reversion Defined is the residue of an Estate that is left after some particular Estate granted out in the Grantor Example As if a Man grant Lands for Life without further granting the Reversion of the Fee-simple is in the Lessor Noys Max. p. 32. Also it commenceth after a Remainder May commence after Remainder Example As when he in Fee-simple leaseth for Life to one or in Tail he may appoint a Remainder after that Estate and a third in Fee-simple for if he doth not dispose of the Fee-simple by way of Remainder when he maketh the Gift for Life or in Tail then the Fee-simple resteth in himself as a Reversion See antea fol. 5. Nota. Note That after a Fee-simple he can limit no further Estate Ibid. Of Fee Defined The division of Fee in divers respects are many but for our present purpose it is sufficient to divide it into two sorts First Fee-simple or absolute Secondly Fee-Tail or Fee-Conditional Fee-simple Fee-simple is that whereof we are seized to us and our Heirs for ever Fee Tail Fee Tail is that whereof we are seized to us and our Heirs with Limitation that is the Heirs of our Body See Lit. ca. 2. Lib. 1. And note Two-fold That a Fee tail is either General or Special General General is where Land is given to a Man and the Heirs of his Body not naming upon what Woman to be begotten Therefore if he marry one or more Wives and have no Issue by them and again marryeth another by whom he hath Issue this Issue shall Inherit the Land upon such Grant Special Special is when it is certainly set down of whom the Issue shall come as when Lands are given to a Man and the Heirs of their two Bodies Lit. ut supra and this special Estate is either expressed or implied Expressed Expressed where it specially limited what Issue shall inherit Implied Implied as in Frank-marriage as where upon Special Tail either of the Parties die and have no Issue between them the surviving Party is improperly called a Tenant in Tail after possibility of Issue extinct See West Symb. part 1. Lib. 1. sect 40. Thus I have made good to you the Subject Matter promised in the Frontispiece which might have been much enlarged by proper Precedents but would much have shadowed that Light which hereby is intended Whereto for the Affinity of the Subject is added a brief Dicourse shewing by what ways Property in Goods and Chattels is or may be gotten CHAP. VI. Shewing the several ways whereby a Man may get Property in Goods or Chattels Property in Goods and Chattels is gotten ten ways viz. 1. By Gift 2. By Sale 3. By Stealing 4. By Waiving 5. By Straying 6. By Wreck of the Sea 7. By Forfeiture 8. By Executorship 9. By Administration 10. By Legacy Property by Gift The Property of Goods may pass by Gift Property by Gift either by Word or Writing If there be a general Gift made of all his Goods This is suspicious to be done of Fraud to deceive Creditors Fraudulent Deed of Gift And if a Man make a Deed of Gift being in Debt to prevent the taking of his Goods in Execution for his Debts this Deed of Gift is void Void against the Creditors as against those to whom he stood indebted but as against himself his Executors or Administrators or any other to whom he afterwards shall sell or convey them this Gift is good by that Deed Good against the Debtor 50 E. 3.6 13 El. 5. 27 El. 4. Property by Sale Property by Sale Bona fide good By Sale any Man may convey his own Goods to another and although he fear Executions for Debt yet he may sell them for Mony at any time before the Execution served so there be no reservation of Trust between the Parties as that of paying the Mony he may have the Goods again for that Trust in such a Case doth prove plainly a Fraud to prevent the Creditors from taking the Goods into Execution Note The Goods are liable to an Execution so soon as it is delivered to the Sheriff by a late Act. Property by Stealing c. If a Man steal away Goods or take them from me in jest Goods stollen or taken in jest Sold in a Market c. bars the Owner or borrow them of me or take them as a Trespassor and not as a Felon and carry them to a Fair or Market and there selleth them this Sale doth bar me of the Property of my Goods saving that if it be of a Horse 2 3 P. M. 7. he must be ridden once over in the open Market or Fair between the Hours of Ten and Sun setting and to be tolled in the Toll-Book and the Seller must bring one that will a vouch his Sale who is known to the Toll-Book Keeper 31 Eliz. 12. or else this Sale bindeth me not And for any Goods where the Sale in Market or Fair shall bar the true Owners being not the Sellers of their Property Sale to bar the Owner must be a Market where usually such Things were sold it must be a Sale in a Market or Fair where usually Things of that nature are sold So that the Buyer know not of the former Property and do pay Toll and enter it Plate must be sold at the Goldsmiths Stall and not in his inner Shop Noy Max. p 90. Examples of Sale If a Man steal a Horse and sell him in Smith-field as before the true Owner is barred by the Sale But if he sell the Horse in Cheap-side or Newgate Market or Westminster Market the true Owner is not barred because those Markets are usually for Herbs Fishes and such like and not for Horses So whereas by the Custom of London every Shop is a Market all days of the Week except Sundays and Holy-days yet if a piece of Plate or Chain of Gold or Pearl that is stollen or borrowed be sold in a Drapers Shop or in a
Will before the proving thereof Upon Time as if the Testator maketh J. S. his Executor when he cometh to full Age or when he cometh from London or while he dwelleth at London c. West Ibid. And as these Executors may be so made simply or upon condition or with reference to time so may Legacies and Devices be made to one or more simply or conditionally or with reference to or from time Example As if a Man devise that 〈◊〉 Man shall have the Occupation of his Plate oâ— other Chattels during hiâ— Life But note That if a Chattel be given to one for Life the Remainder to another the Remainder is void for a Grant or Devise for an hour of a Chattel is good for ever and the Devisce may dispose of it but if he do not the other shall have it or for Years and iâ— he die within the Years then that they shall remain to M. A and it is good Noys Max. page 99 100. Executor not to meddle during Life of another Executor A Man makes A. and B. his Executors and Wills that B. shall not meddle during the Life of A. and good for he doth not restrain his intire power for he may make one Executor of his Goods in D. and so he may divide the time 19 H. 8. By Fitz See Dyer 19 H. 8. 32 H. 8. B. Exec. 155. If there be but one Executor made yet he may refuse the Executorship Executor having not medled may refuse the Executorship coming in the Court before the Bishop or his Official so as he have not before medled with any of the Goods or with receiving of Debts or paying of Legacies and if there be many and all refuse then is the Party â—ead Intestate and if there be more Executors than one 42 El. Co. 9. fol. 36 37. yet so many as list may refuse the Executorship and if any one of them â—ake it upon him the rest that once did refuse may notwithstandâ—ng take it upon them when they will Noys Max. page 103. Coke Lit. 5. fol. 28. cont 18 E. 2. Bro. 8.37 No Executor shall be farâ—her charged with Debts or Legacies How Debts ought to be paid by Executor Stat. 29 Car. 2. says No Action to be brought to charge any Executor or Administrator upon any special Promise to answer Damages out of his own Estate unless the Agreement or some Memorandum thereof in Writing and signed by the Party to be charged or some by him lawfully authorised than the value of the Goods of the Testators which come to his Hands â—o that he foresee that he pay Debts of Record first â—s namely Debts to the King then upon Judgments Statutes Recognizances and then Debts for Bonds or Bills sealed or for Rent unpaid or Servants Wages and then Debts due by Shop-Books and for Contracts by Words and lastly Legacies Co. Lit. 5. Reeds Case If Executor or Administrator pay not the Debts in course they shall be charged See Went worths Executor p. 189 For if an Executor or Administrator pay Debts to others before the Debts to the King and pay Debts upon Bonds before Debts due by Records or pay Debts upon Shop-Books or for Contracts before those due upon Bonds or for Arrearages of Rent he shall pay the same to others in their Degrees out of his own Goods M. 33 34 Eliz. Lady Walsinghams Case Noys Max. page 104. Debts of equal degree Executor or Administrator may pay first which he will But yet the Law gives them choice That where divers have Debts due in equal degree of Record or Specialty he may pay which of them he will before any Suit be brought against him but if any Suit be brought Exception he must first pay him that first getteth Judgment against him 28 H. 8. Dyer 22. Doct. and Stud. cap. 10. p. 78. 41 E. 3. El. Dyer 232. Co. Intr. 148 149 286. Any one Executor may convey the Goods or release Debts without his Companion any one may do as much as all together One Executor may do as much as all together H. 48. E. 4.14 15. But one Mans releasing of Debts or selling of the Goods shall not charge But one shall not charge the rest the other to pay so much of their Goods as was released or sold by the other though there be not enough besides But it shall charge the Party himself that did so release or sell But only himself or convey See Wentworths Executor p. 321. but he must be above seventeen Years old Hil. 9. Jac. Rot. 87. But it is said to be otherwise of Administrators Administrators cannot act alone because they have but one joynt Authority given them by the Ordinary over the Goods which Authority being given to many is to be executed by them all joyning together Sed Quaere for it is said That the power and charge of an Administrator is equal in every point to the power and charge of an Executor Power of Administrator equal to Executor Noy 106. If a Man make an Infant his Executor the Ordinary may commit the Execution of the Will to the Tutor of the Child Infant Executor must have a Tutor c. for the Childs behoof until he be of the Age of seventeen Years and no longer Noy Ibid. An Administrator during the minority of an Infant may do nothing to the prejudice of the Infant Administrator during minority must do nothing to the prejudice of the Infant not sell the Goods of the deceased unless it be upon necessity to pay Debts or that they would Perish nor let a Lease for a longer time than whilst he is Adminstrator Noy Ibid. An Infant upon the true payment of a Debt due to the Testator may make an Acquittance Infant may make Acquittance and it shall be good for a Child may better his Estate but not make it worse Noy page 107. Note If an Executor die making an Executor the second Executor is to be Executor Executor of an Executor to the first Testator 25 Ed. 3. Noys Max. p. 103. But if an Administrator die Intestate or make an Executor yet this Executor or Administrator Executor or Administrator of an Administrator shall not be Executor or Administrator to the Intestate But in this Case the Bishop New Administration may be made called the Ordinary is new to commit the Administration of the first Intestates Goods If the Executors or Administrators do pay Debts When Executors or Administrators pay their own Mony they may retain in value or Funeral Charges or Legacies of their own Mony he or they may retain so much of the Goods in kind of the Testator or Intestates again and shall have property of that in kind but not of Lands appointed to be sold 20 H. 7. 5. Note Stat. 29 Car. 2. concerning Administrators Note The Heir though he have been advanced c. is to have an