M. and of his heires for ever And as for and concerning the said Mannor of c. Vses raised for payment of debts and performance of his last Will. to the use of F. M. for life and then to daughters for portions in such manner as is next before limited And from and after such time as the said severall summes of c. shall or may be had levyed or taken then to the use and behoofe of the Executors and Administrators of the said F. M. for and during the terme of ten yeares then next following for and towards the payment of the debts of the said F. M. the father and for and towards the performance of his last Will Testament and from and after the end of the said terme of 10. yeares then to the use and behoofe of the said E. M. for his life without c. and so on with an intaile et supra Reddendo reservando A rent must be reserved out of Lands or tenements whereunto the Lessor may have resort or recourse to distrain therfore a rent cannot be reserved by a common person out of any incorporeall inheritance as advowsons commons Offices corody multure of a Mill. Reservations of Rent with all incidents belonging thereunto and how tenant in taile must reserve the rent upon his Lease A Man makes a Lease the first of October for ten yeares from the feast of St. Michael then last past yeilding to him and his heires 20. pounds at Michaelmas or within one month after in this case if the lesser die between the feast of St. Mic. and the end of the month the heir shall have the rent as incident to the reversion and not the executors as rent behind because it was not due till the end of the Month. And so if the Lessor betweene the said two daies had granted the reversion over and the Tenant attorne the Grantee shall have the rent as incident to the reversion Tithes Faires Markets Liberties Priviledges Franchises and the like But if the lease be made of them for years by deed it may be good by way of contract to have an action of debts but distrain the lessors cannot neither shall it passe with the grant of the reversion for that it is no rent incident to the reversion but if any grant be reserved in such case upon a lease for life it is utterly void because in that case no action of debt lieth But if a man deviseth the vesture or herbage of his land he may reserve a rent for that the thing is maynorable and the lessor may distraine the cattle upon the land a reversion or remainder of Lands or Tenants may he granted reserving a rent for the apparent possibility that it may come in possession they are tenements within the words of Litleton Vide fo 44. A man makes a Lease for yeares yeilding a yearly rent at the feast of Pasch or a month after with condition of re-entry and the Lessee tenders the rent at the last instant of the day of the feast of Pasch The Lessor in the case may not re-enter upon demand made the last instant of the month because the Lessee hath liberty to pay it then and the diversity was taken between the disjunctive reservation and when the reservation is at a certain feast and a condition is added that if it bee behind by the space of a month after the feast that then the Lessor shall re-enter there the lessee for the salvation of his Lease may not tender it at the last instant of the Feast day because he hath not such liberty and election as in the other case and it was resolved by all the Justices that in the said case of the disjunctive reservation if the lessor dy between the said two daies the heire shall have the rent and not the Executor A man leased certain lands for years yeilding yearly a rent of thirty pounds at Michaelmas and the Anuntiation or within 12. daies after every of the said feasts payable at the Fontstone in the Temple Church London upon condition that if the said rent of 30 l. or any part thereof be behind and unpaid by the aforesaid space of twelve daies next after any of the aforesaid Feasts or daies of payment thereof as is aforesaid therof as is aforeraid that then the said Lease shall be voide and it was adjudged that the lessee in safegard of his Lease shall have 12. daies after the 12. daies to pay the rent for when the rent is not paid at the first day it is as much as if it had been reserved upon the twelfth day after And where it is said per perdictum spacium 12 dierum post c. by good construction all the words ought to take effect viz. post aliquod festorum praedict seu dierum solutionis inde and dies solutionis is the 12. day after the feast and therefore the Lessee shall have 12. daies after the twelfth day which is dies solutionis post festum c. and that for the most a vaile of the Lessee for whose benefit over time was given and those words praedictum spatium 12. dierum standeth well in good sence viz. post praedictum spacium 12. dierum post praedictos 12. dies for that is praedictum spacium though it hath not the same commencement a the other hath And so the quere in 3. and 4. P. M. fo 142. well resolved Dier A Parson of a rectory made a lease for yeares rendant rent at Michaelmas or within a month after The Lessor died ten daies after Michaelmas and was barred by judgement of the Court because the lessor died before the rent was due Dame Eliz. Pawlet seised of the Mannor of Wade for her life by Deed indented demised the Mannor to William Pawlet for 99. yeares if she the said Dame Eliz did so long live yeilding the rent of 100. pounds at Michaelmas and Pasch or within 40. daies after either of the said feasts W. Pawlet made Dulcibel his wife Executrix and died Dulcibel took to husband Iohn More Esq Dame El. Pawlet made Edward Walgrove her Executor died the thirteenth day after Michaelmas her Executor brought an Action of Debt for the halfe yeares rent ended at the Feast before the death of the said Eliz. tota Cuâ—ia contra quaerentem Yeilding and paying therefore yearly during the said terme unto the said c. the yearely rent or sum of a 100. pounds Rent reserved to be paid of the thing demised and without any demand of the rents so note that by speciall consent of the parties a reentry may be for default of payment of rent without demand thereof Nomine penae forfeited for non-payment of rent without any demande made at two tearmes or Feasts in the yeare most usuall by equall portions the first payment therof to begin at the Feast c. next ensuing the date hereof the same payments to be made yearely at or in
life make a Feoffment that is a forfeiture and yet nothing passeth but his own estate But making a Livery in fee it is a forfeiture though none of the remainders be divested Coke 2. pars fol. 76. b. Bredons case vide plus fol. 50. this is a forfeiture and yet no reversion or remainder is divested out of the King A particular Estate of any thing that lyeth in Grant cannot be forfeited by any grant in Fee by Deed As if Tenant for life or years of an Advowson Rent Common or of a reversion or remainder of Land by Deed grant the same in fee this is no forfeiture But if such a Tenant levy a Fine c then it is a forfeiture Note The diversiâ—y between Livery and Seâ—sin of Land and the delivery of a deed and what is a good delivery of a deed in Law there is a diversity between Livery and Seisin of Land and the delivery of a Deed for if a man deliver a Deed without saying of any thing it is a good delivery but to a Livery of Seisin of Lands words are necessary as taking in his hands the Deed and the ring of the doore if it be of a house or a turff or twig if it be of Land and using the words aforesaid And a Deed may be delivered to the party without words without any act of delivery As if the Writing sealed lyeth upon the Table and the Feoffor or Obligor saith to the Feoffee or Obligee Go and take up the said Writing it is sufficient for you or it will serve the turne or take it as my Deed or the like words it is a sufficient delivery Cokes Littleton title Dower fol. 36. a. 29 H. 8. Dyer fol. 95 43 Eliz. inter Hawsly Lacker in Banco Rs. Hillary 12 Jac. Rs. in Com. Banco The Grant of a Seignory Rent-charge Rent-seck Attornment in toto withall incidents therunto as also the Remainder or reversion of any of these or the remainder or reversion of the Land it self is nothing worth without Attornment viz. the agreement of the Tenant that must be presently charged As Lord Mesne and Tenant the Lord grants his Seignory the Mesne must attorne and not the Tenant prevaile for the Mesne is Tenant to the Lord Lord and Tenant the Tenant letteth the Land for life or giveth in taile saving the reversion to himself Now if the Lord grant his Seignory he in the reversion must attorne to the Grantee and not the Tenant for life or Tenant in taile for he in the reversion is Tenant to the Lord and not the other But if the Tenant had let his Land to one for life the remainder in fee thereupon a grant of the Seignory the Tenant for life must attorne for he is Tenant to the Lord so is not he in the remainder so long as Tenant for life liveth If Lands be let for years or given in taile saving the reversion upon a Grant of the reversion the Tenant of the Land must attorne And an Attornment may either be by word as to say I agree or am content with the Grant Or I attorne to you and become your Tenant by force of the Grant or else by the delivery of a penny and to the Grantee c. in name of Attornment or by any other matter implying an agreement as by a surrender to the Grantee of the reversion praying in aide of him c. and if such an Attornment be not to the Grantee in the life of the Grantor then the Grant is void In the Grant of a Reversion depending on a Freehold the attornment of the Freeholder is sufficient though he be not the Tenant that must presently be charged As if Lands be let to a man for years the remainder to another for life and hee in reversion grant the reversion to another the attornment of him in the remainder is sufficient 1 Littleton fol. 1â—… 〈◊〉 the 〈…〉 nly and where not If a man bind himself and his Heires in an Obligation or 〈◊〉 covenant by writing for him and his 〈…〉 or 〈◊〉 grant an Annuity for him and his â—…res in all these cases the Law chargeth the Heire after the death of the Ancestor with this Obligation Covenant Annuity Warranty yet with these three cautions that the party must by speciall name bind himself and his Heires for if the party in the bond Covenant Annuity or Warranty doth not bind himself as well as his Heires in such case the Heire shall never be bound 2. Some Action must be brought against the Heire whilest the Land or other Inheritance resteth in him unalienated away For if the Ancestor dye and the Heire before an Action be brought against him upon those Bonds Covenants or Warranties do alien away the Land then the Heire is cleaned discharged of the burthen 3. No Heire is further to be charged then the value of the Land descendeth to him from that Ancestor that made the charge and that not to be sold outright but to be kept in extent and at a yearly value untill the Debt or damage be run out Neverthelesse if an Heire that is sued upon such a Debt of his Ancestor doth not deale clearly with the Court when he is sued that is if he come not immediatly by way of confession and set down the true quantity of his Inheritance discended and so submit himself as the Law requireth then that Heire shall be charged of his owne other Lands Goods and money for this Deed of his Ancestor As if a man bind himself and his Heirs in an Obligation of a hundred pounds and dieth leaving but ten acres of Lands to his Heire if his Heire be sued upon the Bond and cometh in and denieth that he hath any by discent and it is found against him by verdict that he hath ten acres this Heire shall be now charged by his false plea of his owne Lands Goods and body to pay the hundred pounds though the Land be not worth ten pounds All words which do prove by specialty Words onely which do shew a man to be a Debtor to another is a good Obligation without binding the Executor that the maker of the Writing is a Debtor to another that is a sufficient Obligation and though the Executor or Administrator are not expressed yet the Law will charge them because they represent the Estate of the Testator but the Heire shall never be charged without expresse mention of the Heire Dyer fol 2 3. Acquittance for one Rent is a discharge of all former Rents Those cannot be heirs If a Rent be behind for twenty years and the Lord make an Acquittance for the last that is due all the rest are presumed to be paid and the Law will admit no proofe against this presumption Cokes Littleton fol. 373. A Bastard can be no Heire nor have any unlesse it be his owne Child A man attainted of Treason or Felony can be no Heire nor have an Heir though it be his
Heires so that his Heire may not have it by discent and the King shall not have it because he that did the Treason had not the Fee at the time of the Treason or afterward Plowden 562. 556. If a man do lease or assure his land to another and all the Mynes and Pits thein for life or yeares the lessee may open and dig the ground for Coale Morter Stone c. and take and carry away the same although there were not any Myne open at the time of the lease for by this assurance it appeareth that the lessor was contented that waste should be made in any part of the ground leased by myning or digging And in this case the lessee may sell and dispose the same Coale Stone Marle Morter c. at his pleasure for it is as much as if the lease had been made without impeachment of any manner of waste to be committed by Myne Pits or digging Lessee for life the Remainder for life the Remainder in Fee the first doth waste that is not punishable by him which hath the Fee by reason of the meane Remainder otherwise it is if the meane estate be for years If Lessee for life be the Remainder for life and the Lessee for life doth Waste this Waste is dispunishable at this time for the advantage of him in Remainder for life And where a Lease for life is granted and then the Reversion is granted for life and the Tenant attorneth an Action of Waste lyeth not yet vide the Register 75. that Waste lyeth where there is a mean estate for life in Remainder And though the Waste be unpunishable in the first case yet it seemeth the Chancery may enjoyne him upon complaint against the first Lessee that he shall not do Waste for that he ought not to do Waste by the Law although no Action lyeth The Process in Waste is Summons Attachment and Distresse and if he appeare not at the Distresse then a Writ to the Sheriff to enquire of the Waste by the Oath of twelve men There are two kinds of Waste viz. Voluntary or permissive Waste in houses Waste may be done in houses by pulling them downe or by suffering them to be uncovered whereby the Spars or Rafters Planchers or other Timber of the house are rotten But if the house be uncovered when the Tenant cometh in it is no Waste in the Tenant to suffer the same to fall downe But though the house be ruinous at the Tenants income yet if he pull it downe it is Waste unlesse he reedifie it againe if Glasse-Windowes though glazed by the Tenant himselfe be broken downe or carried away it is Waste for the Glasse is part of the house And so it is of Wainscot Benches Doores Windowes Furnaces and the like annexed or fixed to the house either by him in Reversion or the Tenant Though there be no Timber growing upon the ground yet the Tenant at his perill must keep the house from wasting If the Tenant do Waste or suffer Waste to be done in houses yet if he repaire them before an Action brought there lyeth no Action of Waste against him but he cannot plead Quod non fecit vastum but the speciall matter Waste in Gardens and Orchards If the Tenant cut downe or destroy any Fruit-trees growing in the Garden or Orchard it is Waste but if they grow upon any of the ground which the Tenant holdeth out of the Garden or Orchard it is no Waste Lopping of Trees by a Copyholder is not a forfeiture but a Copyholder may not lop and burne them in another house of the Land or Mannor nor sell the Lops unlesse by the Custome he may do waste Kitchin forfeiture 125. Waste in building of a new house If the Tenant build a new house it is Waste and if he suffer it to be wasted it is a new Wast if the house fall downe by tempest or be burned by the lightning or prostrated by enemies or the like without a default of the Tenant or was ruinous at his coming in and fall downe the Tenant may build the same againe with such matterials as remain and with other Timber which he may take growing on the ground for his habitation but he must not make the house larger then it was if the house be uncovered by tempest the Tenant must in convenient time repaire it Waste in Dove-houses Parks Ponds c. Waste in Timber-trees If the Tenant of a Dove-house Warren Parke Ponds or the like do take so many as such sufficient store be not left as he found when he came in this is Waste Waste properly is in houses Gardens Timber-trees viz. Oke Ash and Elme and these be Timber-trees in all places either by cutting them downe topping them or doing any act whereby the timber may decay Also in Countries where timber is scant and Beeches or the like are converted to building for the habitation of man or the like they are also accounted timber that is if the Tenant cut downe timber-trees or such as are accounted timber as is aforesaid this is Waste And if he suffer the young Gerignes to be destroyed Wast in cutting Beeches c. this is destruction Cutting down of Beech Willowes Birch Aspe Maple or the like standing in the defence and safeguard of the house is destruction if there be a Quick-set fence of Whit-thorne if the Tenant stub it up or suffer it to be destroyed this is destruction and for all these and the like destructions an Action of Waste lyeth turning of Trees to Coales for Fewell when there is sufficient dead Wood is waste If the Tenant suffer the houses to be wasted Waste digging for Gravell Cole c. and then fell downe timber to repaire the same this is a double waste digging for Gravell Lyme Clay Brick Earth Stone or the like or for Mynes of Mettall Coale or the like hid in the Earth and were not open when the Tenant came in is waste but the Tenant may dig for Gravell or Clay for reparations of the house as well as he may take convenient Timber-trees If the Tenant convert arrable land into Wood Wastin converting arrable into wood or Meadow into arrable or wood into arrable or Meadow into arrable it is waste The Tenant may take sufficient wood to repaire the Walls Pales Fences Hedges and Ditches as he found them but he can take no new and he may also take sufficient Plow-bote Fire-bote and other House-bote The Tenant cutteth downe Trees for reparations and selleth them and after buyeth them againe and imployes them about necessary reparations yet it is waste for the Sale he cannot sell Trees and with the money cover the house burning of the house by negligence or mischances waste An Occupant shall be punished for waste and so if an estate be made to A. and his Heires during the life of B. A. dieth the Heire of A. shall be punished in an action of waste If a Lease be
during his life If a rent be granted to one for life by deed and willeth that the Grantee and his heires distraine in the Lands charged for the same rent the grantee hath in this case fee-simple in the rent and not estate for life for the distresse is the creation of the rent-charge and therefore the limitation and creation of the rent-charge shall enure according to the effect and limitation of the distresse for therein he retaineth it for a terme which is as long as he hath in the Land and therefore hath not any certainty that terme will ever commence and therefore the grant void And where Lessee for yeares without any habendum granteth to another all his tearme which shall be to come at the time of his death shall be all void A Termor reciting by Indenture his terme and lease granted all his terme estate and interest to another habendum sibi assign suis immediate post mortem ipsius the Grantor and the case was ruled and adjudged that the habendum was void and the premises of the grant good to make the whole terme to passe forthwith Dier fo 272. If I have a rent in Fee if I grant it to another and stay there this is a grant for life but if I goe further and say habendum after the death of I. S. there all shall be void vide fo 2. If tenant for yeares of land grant out of that a rent-charge to another for the life of the Grantee the grantee shall not have a state of Frank-tenement because he cannot have a stare of Frank-tenement derived out of a Chattel reall but he shall have the rent during all the yeares if the Grantee so long shall live Plowden fo 525. If I have a rent in fee and grant it to another post mortem I. S. this grant is void for the nature of a grant is that the thing ought to passe forthwith If a man make a lease for yeares and afterwards the lessor grants a rent charge out of the Land that grant shall charge the reversion And this proveth that the Land and the reversion are nor two distinct things but that in the reversion the Land is contained Plowden fo 173. The Abbot leased land for life and afterward leased the reversion to have the Land from Michaelmas next after the first Lease ended by death surrender or forfeiture for 21. yeares this is a good Lease Plowden fo 146. A grant of a reversion Habendum the said reversion after the end and expiration of the Tenant for life Attornement needdes for sixty yeares this is a good grant without Attornement If I make a Lease to one for life and afterwards I grant the reversion to another habendum from the Feast of St. Michael next ensuing to him and his heires this grant is void because that no franke-tenement be it in possession reversion or remainder may be limited to commence at a day to come If I have a rent in Fee I may not grant it to commence in futuro or at a day to come but if I have land I may grant a new rent out of it to commence at a day to come for there I shall not have any particular estate in the meane for it was not in esse before but doth commence of new and therefore I may appoint it to commence when I will Pertinentiis A man makes a Feoffement of a house cum pertinent nothing passeth by these words cum pertinentiis but the Garden Curtilage and close adjoyning to the house and whereupon the house is built and no other Land though other Lands have been occupied with the house A man leased a house cum pertin no land passeth by these word but otherwise it is where a man leaseth a house cum omnibus terris eidem partin there the lands therewithall used doe passe If a man makes a Feoffement of a house ac omnes terras tenementa heriditamenta eidem messuagio pertin aut cum eodem occupata locata aut dimissa existent hereby the land used with the house doth pass Tenant in taile and the Lessee shall acknowledge the Tenements to be the right of one A stranger Lease by fine to bind Tenant in Taile and his issue and that A. shall grant and render by the same fine to the Lessee for 60. yeares the remainder to the Lessor and his heires and it was with proclamations which shall bind the taile after proclamation made If Tenant in taile make a Feoffement and a common recovery is had against the Feoffee Recovery the best to barr estates taile and remainders who voucheth tenant for taile who voucheth over c. there the tail shall be barred because that he when he commeth in as vouchee shall bee in the degree of tenent in taile and the recompence in value which he hath or may have shall goe in taile and therefore such manner of recovery is best and the surest way to barr the taile and all the remainders and the reversion also If A. be tenant in taile the remainder to B. in taile the remainder to C. in taile the remainder to B. in Fee A makes a Feoffement the Feoffees suffer a common recovery wherein B. is vouched he over the common vouchee In this case A. is not bound but B. and all the remainders over are barred For although that by the Feoffment of A. all the remainders were discontinued and the estates that B.C.D. had converted into meere rights and though the remainders may never be remitted before the estate taile in possession be recontinued yet in case of a common recovery which is the common assurance of the Land he that commeth in as vouchee shall bee in judgement of Law in privity of estate which he over had though the precedent estate wherupon the state of the vouchee dependeth be devested or discontinued Coke 3 pars fo 60. Tenement is a large word Tenement and Hereditament to passe not onely lands and other inheritances which are holden but also Officers Rents Commons Profits apprender our of lands and the like wherein a man hath any Frankenement and whereof he is seised ut de libero tenemento but an Hereditament is the largest word of all in that kind for whatsoever may be inherited is an hereditant be it corporeall or incorporeall reall or personall or mixt Vesturam terrae If a man hath twenty Acres of Lands and by Deed granteth to another and his heires Vesturam terrae and maketh Livery secundum formam chartae the Land it selfe shall not passe because he hath a particular right in the land for thereby he shall not have the houses timber trees and other reall things parcell of the inheritance but he shall have the vesture of the Land that is the Corne Grasse and Vnder-wood Sweepage and the like and shall have trespasse quare clausam fregit Herbagium terrae If a man grant herbagium terrae he hath a
tillage of the occupier in whose hands soever the land commeth if it be not in the hands of the Parson himselfe And all this matter was agreed by the Justices and Serjeants but they were in severall opinions if the Parson Lease parcell of Gleeb Lands for yeares or life reserving a rent whether the Lessee shall pay tythes or not Quere Dier fo 44. If a man levy a fine of land in ancient demaine at the common law to another Ancient demain deceit now the Lord of ancient demaine shall have a writ of deceit against him that levied the fine and him that is tenant and thereby he shall reverse the Fine and there he which hath given the Land shall be restored to his possessions and title which he had given by the Fine because that the Fine and gift therby is utterly defeated But if he that levied the Fine had after the Fine released to him which had the possession by the Fine by his deed or confirmed his estate by his deed in the land then it seemeth that he to whom such release or confirmation is made shall retaine and have the Land notwithstanding the Fine be reversed because that this release or confirmation made to him being in possession maketh his estate firme and rightfull against him and his heires which released or confirmed Na. Bre. fo 98. A. Pace regis reginae fo 68. Terminus Terminus annorum tempus annorum in the understanding of the Law doth not onely 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 twenty one yeares and after make a lease to begin a fine expiratione predicti termini 21. annor dinnisor and after the first Lease is surrendred the second lease shall commence presently but if it had been to begin post finem expirationem predict 21. annorum in that case although the first terme had been surrendred yet the second lease shall not begin till after the 21. yeares be ended by effluction of time And so note that diversity between the terme of 21. yeares and 21. yeares Coke 1 a pars fo 154. If A. make a lease to B. for ten yeares and covenant that if B. pay 100 l. to A. infra dictos decem annos that B. shall have Fee if B. surrender his terme to A. and after pay the 100 l. within the 10 years he shall have Fee but otherwise it is where it is covenanted that if he pay a 100 l. infra terminum praedictorum decem annorum folio eodem Tripartite Indentures In witnesse whereof c. the parties above named to these present Indentures Tripartite interchangeably have set their hands and seales dated the day and yeare above written In Witnesse whereof all the said parties have to every part of these presents set their Hands and Seales the day and yeare first above written IN witnesse whereof to the first part of these Indentures remaining with the said Sir Jo. Tracy Sir Will. Coke and Sir Thomas Eastcourt the said Sir H. Poole hath set his Seale 1. Sir H. Poole 2. Sir Jo. Tracy Sir Will. Cooke Sir Thomas Eastcourte And to the second part of the said Indentures remaining with the said William Guies Iohn Bridgman and Fr. Marsh the said Sir H Poole Sir Jo. Tracy Sir Wil. Cooke and Sir Thomas Eastcourt have set their Seales 3. Will. Guies Io. Bridgeman Fra. Marsh And to the third part of these indentures remaining with the said Sir H. Poole the said Sir Jo. Tracy Sir Wil. Cook Sir Thomas Eastcourt Wil. Guies John Bridgeman and Fra. Marsh have set their seales even the day and yeare first above written To the first part of these Indentures remaining with the said H. Poole the said William Bridges Tho. Nichoas William Freame Giles Bridges and Jeffrey Bath have set their Seales 1. Henry Poole 2. Will. Bridges Tho. Nicholas Will. Freame To the second part of these presents remaining with the said Wil. Bridges Tho. Nicholas and Wil. Freame the said Hen. Poole Gi. Bridges and Jeff. Bathe have set their Seales 3. Gi. Bridges Jeffery Bathe And to the third part of these presents remayning with the said G. Bridges and Jeffery Bath the said Hen. Poole W. Bridges Thomas Nicholas and Will. Freame have set their Seales TO one part of this Indenture remaining with the said Sir Hen. Poole the said Dorothy Vnton and Geo. Shierley have set their Seales 1. Dorothy Vnton 2. George Shierly 3. Sir Hen. Poole To another part remaining with the said Geo. Shirley the said Dorothy Vnton and sir H. Poole have set their Seales To another part remaining with the said Dorothy Unton the said Sir Hen. Poole and Geo. Shierley have set their Seales TO one part of these Indentures remaining with the said Geo. Raleigh the said Gab. Pountney and Edw. Raleigh Tho. Spencer and Edward Essex have set their Seales And to one other part remainder with the said Gab. Pountney and Edward Raleigh the said Geo. Raleigh Thomas Spencer and Edward Essex have set their Seales And to one other part remainder with the said Tho. Spencer and Edward Essex the said Geo. Raleigh Gab. Pountney and Edw. Raleigh have set their Seales 1. Geo. Raleigh 2. Gab. Pountney Edward Raleigh 3. Tho. Spencer Edward Essex TO the first part remaining with the said Fran. Shirley the said Jo. Shirley and Jane Ralph Shirley Robert Brooksbey Jo. Brooke William Vnderhill have set their Seales To the second part remaining with John Shirley and Jane the said Fra. Ralph Jo. Brook Robert and Will. Underhill have set their Seales 1. Fran. Shierly Ralph Shierley 2. Jo. Shirley Jane Shirley 3. Rob. Brookesby John Brooke Wil. Vnderhill To the third part remainder with Rob. Brookesby Jo. Brooke and William Vnderhill the said Fra. Jo. Jane and Ralph have set their Seales Livery void Tenant for terme of life makes a Lease for yeares then granted tenemenia predicta to C. to have from Michaelmas next ensuing for life after the said feast of Michaelmas tenant for yeares attorned this grant to C. is void for a grant of a Frank-tenement may not commence in futuro and the grant being void at the beginning the attornment after shall not make the Frank-tenement to passe for every frank-tenement ought forthwith either to commence in possession reversion or remainder And when a man makes a Lease for life to commence at a day to come he may not make present Livery to a future estate ideo nothing passeth secunda pars L. Coke fo 35. But if a man make an estate for life to commence at Michaelmas next and then the Lessor himselfe after Michaelmas execute livery to the Lessee the estate is made good only by the Livery but if the Livery be so made by warrant of Attorney of the Lessor then the livery and the Lease are both void If Tenant at will sowe the Crop set Roots
in manner aforesaid at such of the said feast daies which shall next ensue the expiration forfeiture or surrender of the said estate and tearme formerly granted by the said Sir I.P. to the said I G. as aforesaid And also yeilding and paying to the said Sir Henry P. his Heirs or Assignes at and upon the death and decease of every person dying tenant in possession of the Premises by vertue of this demise and grant his her and their best beast for and in the name of a Herriot or three shillings of currant c. at the onely choice and election of the said H P. his Heires and Assignes And if it shall happen the said yearely Rent of c. Contingat to be behind unpaid in part or in al by the space of c. after any the said Feasts or daies of payment wherat or wherin the said ought to be paid or the said Herriots or Herriots money not to be paid in form aforesaid when the same shal be due or ought to be paid that then c. Habendum to one for life and three yeares over to his heire he is tenant for life Habendum for life and 3. yeares over c. Habendum for life the remainder for yeares and this tearme for years is a Chattel in the Lessee which his heire shall not have but the Executor Habendum to I S. for life the remainder for ten years doth not speak to what person that is a term for 10. years in the Lessee created by the Livery Seisin for the terme for yeares may be in the person of him that hath the frank-tenement dependant after the estate for life but not before or precedent to the state for life in the same person because a tearme may not divest or suspend a frank-tenement A Lease to one for life and for 2. yeares over to his Executors or Assignes or to his Heires all is in the Lessee because all is coupled and conjoyned in one gift But otherwise it is where a Lease is made to one for life the remainder to his Executor for 2. yeares or the remainder to his heire for 2. yeares this remainder is in obeyance untill after the death of the Lessee and then it shall vest in the Executor or heir as a chattell by them purchased for heir or executor is a good name of purchase of it and tenant for life may not give forfeit or devise the same tearme The same Law is where a Feoffment is made to the use of I N. for life and after to the use of his assigne for twenty years the lessor may nominate an assignee that shall have it and it shall vest in him as a Chattle by him purchased for he shall be said assignee in sence of an assignee to take it and in the meane time it shall be in Abeyance and note that assignee is 2. wayes the one is the grantee of the estate which was in the grantor before and the other is a person nominated or appointed to take any thing Lessee for life the remainder to him for 21 yeares 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 e converso for if a man make a Lease to one for 21. yeares the remainder to him for tearme of his life the lease for years is drowned Lessee for life the remainder to his Executors for 21 yeares the tearme for yeares shall vest in him if an estate be made to A for life 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 Exclusive and inclusive vi fo plus 48. 23. If a Lease be made by indenture dated the 26. of May to have and to hold from the Date or from the day of the Date from the day of the making or from the day of the sealing and delivery the Lease shall begin upon the twenty seaventh day of May for these words are exclusive and doe exclude the day of the date and makes it to be no part of the demise Inclusive But if the Lease beare date the twenty sixt of May to have and to hold from the making from henceforth or from the ensealing and delivery hereof then it shall begin on the day it was delivery for the words of the Indenture are not of any effect till the delivery for these words are inclusive and make the day to be parcell of the Tearme Where the words of the statute of 27. H. S. Cap. 16. Inrolements 27 H. 8. of Inrolements are within six Months after the date of the same writings indented that if such writings have a Date that the six monthes shall be accounted from the Date and not from the delivery but if it want date then from the delivery Diâ—r 5. Eliz. 218. An Indenture of Bargaine and sale bare date 4. vi fo 23 October 4. and 5. B. and M. and was inrold 21. Martii prox sequen which was the last day of the six monthes accounting the day of the date exclusive this Deed was well inroled within the said act for the whole day of 4. Octo. shall be accounted in Law the date of the Indenture unde sequitur that from the Date and from the day of the date are all of one sence insomuch as in judgement of Law the Date includeth all the day of the Date If the habendum be for the tearme of 21. yeares without mentioning when it shall begin it shall begin from the delivery for there the words take effect as aforesaid If an Indenture of Lease beare date which is void or impossible as the thirtieth day of February or the fortieth day of March if in this case the terme be limited to begin from the date it shall begin from the delivery as if there had been no date at all And so it is if a man by Indenture of Lease either write a Lease which is not or is void or misrecite a Lease in point materiall which is in esse To have and to hold from the ending of the former lease this lease shall begin in course of time from the delivery therof Coke Lib. 5. fo 1. 12. Eliz. Dier 218. Habendum to I. and to the heires of his body lawfully begotten Taile generall Habendum to I. and A. his wife and to the heires of their two bodies Taile speciall Habendum to I. and A. his wife and to the heires males of their two bodies Habendum to I. and to the heires males of his body or heires female Habendum to I. A. uxor ejus and to the heires of I. which hee shall beget of the body of A. his wife Taile speciall in the husband the wife for life only Habendum to I and A his wife and to the heires of the body of I. engendred * Habendum to I. and A.
by the bargaine and sale And the bargaine of a reversion shall never take advantage of a condition before notice given Edward Fox for the consideration of 5 pound demysed and granted certaine Tenements to have from the day of the date of the Indenture for ninety nine years A Lease of the Premisses formerly made being then in being It was adjudged that this Demise and Grant upon consideration of fifty pounds did amount to a Bargaine and Sale for the said years whereupon there needeth no Attornment In this case of a Lease for term of years which is a Chattell there needeth no Inrolement for being but a term of years and no Estate of Frank-tenement there needeth no Attornment because it is Executed by the Statute of 27 H. 8 S. Coke 8. pars fol. 94. Livery and Seisin in toto vide fol. 35. Note An actuall delivery of a writing sealed to the party without any words is a good delivery And therefore if A. make a writing to B. and sealeth and delivereth it to B. as a Scrow to take effect as his Deed when certaine conditions are performed that is his Deed forthwith for the Law respecteth the delivery to the party himself and rejecteth the words which shall make the expresse delivery to the party upon the matter no delivery So that the Deed is effectuall though the conditions he never performed And there is a diversity when it is delivered to the pary himselfe and when to a stranger If a Writing be sealed and then it lieth in a Window or on a Table and the Obligor saith to the Obligee See there the writing take it as my Deed and he take it accordingly this is a good delivery in Law Coke 9. pars fol. 137. A Livery in Deed may be done two manner of waies by a solemne Act and words as by delivery of the Ring or Hasp of the Doore by a branch or twig of a Tree or by a Turff of the Land And with these or the like words the Feoffor and the Feoffee both holding the Deed of Feoffment and the Ring of the doore Hasp Branch Twig or Turff 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 forme and effect of this Deed. Or by words without any Ceremony or Act As the Feoffor being at the house doore or within the house saith Here I deliver you seisin and possession of this house in the name of seisin and possession of all the Lands and Tenements contained in this Deed Or enter into the house or land and God give you joy Or I am content you shall enjoy this Land according to the Deed. But if a man deliver the Deed of Feoffment upon the Land this amounts to no livery of the Land for it hath another operation to take effect as a Deed But if he deliver the Deed upon the Land in name of seisin of all the Lands contained in the Deed this is a good Livery If divers parcels be contained in a Deed and the Feoffor delivers seisure of one parcell according to the Deed all the parcels do passe albeit he saith not in name of all because the Deed containeth all And if there be divers Feoffees and he maketh livery to one according to the Deed the Land passeth to all the Feoffees And yet the plainer way is to say in the name of the whole or all the Feoffees If a man make a Charter in Fee and deliver Seisin for life secundum formam Charte the whole Fee-simple shall passe for it shall be taken most strong against the Feoffor If a man make a Lease for years by Deed and deliver seisin according to the forme and effect of the Deed yet he hath but an Estate for years and the Livery is void A man makes a Lease for years But if Lessee for years make a Lease for a certaine terme of any parcell and so divide the possession of that from the residue if of such parcell so severed Livery he made the possession in the residue by the first Lessee is not any impediment to the Livery for this parcell Coke 2. pars Betsworths case and after makes a Deed of Feoffment and delivers seisin the Lessee being in possession and not assenting to the Feoffment this Livery is void for albeit the Feoffor hath the Free-hold and the Inheritance in him yet that is not sufficient for a Livery must be given of the possession also But if the Lessee be absent and hath neither Wife nor Servants though he hath Cattell upon the ground the Livery and Seisin shall be good If a man be seised of a house and of divers severall Closes in one County in Fee and makes a Lease therof for years and afterwards makes a Feoffment in Fee of the same and makes Livery and Seisin in the Closes the Lessee or his Wife or Servants then being in the house the Livery is void for the whole The delivery of a peice of Gold or any other thing upon the land in name of seisin is sufficient Thorowgoods case Coke 9. pars fol. 136 for the Lessee cannot be upon every parcell of the Land to him demised for the preservation and continuance of his possession therein And therefore his being in the house or upon any parcell of the Land to him demised is sufficient to preserve and continue his possession in the whole from being outed or dispossessed New Littleton fol. 4. 8. a. b. A man makes a Lease to A. the remainder to B. in fee and makes Livery to A. within the view this Livery is void for no man can take by force of a Livery within the view but he that taketh the Freehold himselfe If Lessee for life make a Deed of Feoffment and a Letter of Attorney to the Lessor to make Livery and he makes Livery accordingly notwithstanding he shall enter for the forfeiture But if the Lessee for years make a Feoffment in fee and a Letter of Attorney to the Lessor to make Livery and he makes Livery accordingly this Livery shal bind the Lessor and shal not be avoided by him for the Lessor cannot make Livery as Attorney to the Lessee because he had no Freehold whereof to make Livery but the Freehold was in the Lessor If the Lessor make a Deed of Feoffment and a Letter of Attorney to the Lessee for years to make Livery and he doth it accordingly this shall not drown or extinguish his term because he did it as a Minister to another and in anothers right and is accounted in Judgment of Law the act of the other and the Feoffee claimeth nothing by him Trin. 7 Eliz. in com Banco If Tenant for life or years the reversion or remainder being in the King make a Feoffment in fee Forfeiture Tenant for life the remainder to the King for life the remainder to another in fee if the first Tenant for
Recovery c. by transmutation of the possession out of the estate of the Feoffees conusees c. Coke 6. part fo 27. Twines case fo 83. Lo. Coke 3 pars IF a man make an estate for life Conditions Vide plus fo 17. 6. fo 35. the remainder in taile the remainder over in Fee upon condition that any of them in remainder shall doe a certaine act then if hee doth not do it the Feoffer and his heires may enter without any words of re-entry in the proviso and thereby shall defeate the estate in possession and all the remainders for he that entreth for a condition broken and a condition in Deed is in of such estate he had before the condition made but otherwise it is where an entry is made upon a condition in law Coke 8. pars Whittinghams case Vide. fo 50. b. For if Lessee for life or yeares grant a Rent charge out of the lands or make a Lease of some part of the terme or doth acknowledge a Statute or Recognizance and then afterwards doth make a Feoffment in Fee or commit any acts which are forfeitures in Law or doth surrender his estate to his Lessor yet the Lessor shall hold the Land charged And note that a condition in law which by force of a Statute giveth a recovery is stronger then a condition in Law which giveth an entry without a recovery For if Lessee for life make a Lease for yeares and then entreth into the land and doth Waste and the Lessor recover in an action of Waste against the Lessee for life he shal avoid the Lease made before the Waste committed But if the Lesse for life make a Lease for yeares and then entreth and makes a Feoffement in Fee the Lessor shall not avoide the Lease for yeares So if the Tenant make a Lease for yeares and then is attained of Felony or dieth without heire although the Lord recover by Writ or escheat yet he shall not avoide the tearme 8. pars fo 44. Whittinghams case Remainder If I make a lease for life upon condition that if the Lessee doth such an Act hee shall have Fee and he doth it accordingly there he shall have Fee because he is privy to the condition and therefore shall take the benefit therof Remainder Lessee for 5 yeares upon condition that if he pay me 20 pound within two yeares that then he shall have Fee the Fee passeth out of the lessor forthwith Remainedr So where a Lease is made for life upon condition that if I. S. marry my daughter during the Estate for life that then it shall remaine unto him this is a good remainder and yet it doth commence upon condition for there is an estate whereupon a remainder may bee founded and the condition goeth not to the destruction of the particular estate If I make a Lease for yeares the remainder for life upon condition that if he in remainder doth such an act that the remainder shall be void now before the condition broken the remainder is good and in him to whom it is appointed But if the condition be broken then the remainder is out of him and in the person of the Lessor againe Lessee for life the remainder to A. his wife for her life if she live so long sole and unmarried the remainder to D. their son for his life the remainder to D. is good though it commence upon a conditon because the particular estate continueth and the condition goeth not to the destruction of the particular estate and the first remainder doth vest during the perticular estate which maketh the latter to be good though it doth commence upon the condition but quaere whether the second remainder shall begin either upon her marriage or her death If a man for him and his Heires warrant lands to one and his Heires that is a generall Warranty Warranty and what words make a generall Warranty for that it is not restrained against any person in certaine Coke 1. pars fol. 2. This word give in a Feoffment importeth a generall VVarranty against all men during the life of the Feoffor And this word Grant in a Chattel-real doth import a VVarranty in it selfe alone without any clause of VVarranty so as there be in the Deed no speciall matter to qualifie the VVarranty by some speciall Covenant But this word Concessi or Demisi in case of Frank-tenement or Inheritance doth import not VVarranty Coke 5. pars fol 18. The clause of without impeachment of waste Waste in toto and the full definition of the word without impeachment of Waste and what is Waste giveth power to the lessee which shall produce an interest unto him if he doth execute his power during the privity of his Estate and therefore to examine it in reason these words Absque impetitione vasti are in effect as without demand for waste for Impetitio is derived of In and peto and petere is to demand and petio is a demand and sine impetitione is without any manner of demand or impeachment Then this word Demand is of a large extent for if a man disseise me of my land or take my Goods if I release unto him all Actions yet I may enter into the land or seise my goods for by the release of the Action the right or interest is not released but if in such case I release all Demands that shall exclude me not onely of my Action but also of my entry and sciser and of the right of my land and property in my Chattels But if the words had been Absque impetitione vasti per aliquod breve de vasto then the Action onely shall be discharged and not the property in the Trees but the Lessor after the cutting of them may seise them and the diversity appeareth in 30 E. 3. 44. in Walter Idles case where a Lease was made without being impeached or impleaded for waste whereupon it was gathered that these words Without being impeached for waste were not sufficient to barr the Lessor of his property And that if the Lessor had granted that the Lessee might do waste he by that hath power not onely to do waste but also to convert it to his owne use And the opinion of Wray chiefe Justice and Manhood cited in Herlakendens case was not judiciall but prima facie upon Arbitrement without any argument Coke 11. pars fol. 82. When Tenant in fees granteth all his estate to another the Grantee shall have no Fee-simple for want of these words Heires but estate for life but his estate in such case shall be without impeachment of waste as the estate of the Grantee of Tenant in taile shall be and the Feesimple shall be in Nubibus there as well as it shall be of an estate taile and there if he doth commit Treason and dieth the Fee-simple shall escheat to the Common Lord of whom the land is holden for that the blood is corrupt between him and his
covenanteth and granteth to be seised to his use in Fee although no consideration be expresly showne because the Indenture is an Estopell to say it was not a good consideration and it seemeth the Court may not examine the consideration and there is a diversity where the Grant is by Indenture and where by word only Nota. If a man hath power to make Leases for three lives he may not make a Lease for 99. yeares determinable upon three lives But if a man hath power by proviso to make any lease or Grant provided that such lease or Grant exceed not the number of three lives or 21. yeares there he may make a lease for ninety nine yeares if three lives so long live for that doth not exceed the number of three lives but that in truth is lesser for every tearme for yeares which is but a Chattle is lesser in estimation of the law then estate for life which is Frank-tenement If A. be Tenant for life the remainder in taile and A. hath power to make leases for twenty one yeares rendant the ancient rent he may not make a lease by Warrant of Attorney by force of his power because he hath but particular power which is personall unto him Lands may be conveyed 6. manner of wayes First by Feoffment executed from one man to another man and his heires by solemn livery and Seisin By Feoffement By Fine By recovereys Bargain and Sale By use By Covenant By Will if a lesser Estate be given then Fee-simple is it not calâ—ed a Feoffement unless the Fee-simple be conveighed A man in consideration of 100. l and of marriage covenanteth from thenceforth to bee seised of certaine land to the use of himselfe for life and afterwards to the use of his son in taile and the deed is not inrolled according to 27 H. 8. the use and profits is charged because the statute speaketh of bargain and sale only and the use is not because of Bargain and sale only but also for marriage Ploudens case Manxell fo 4. A Fine is a reall agreement made upon record in the Kings Court of Common Pleas at Westminster upon Fines What a Fine is and how lands may be converred therby Tenant for life the remainder to A. in taile the remainder to B. in tail c. with diverse remainders over and tenant for life suffers a common recovery wherein he voucheth A. and he the common vouchee that shall binde all the otheir remainders for no Covin or collusion may be supposed when the next in remainder in taile which hath the immediate inheritance is vouched Coke 10 pars fo 48. a rent may be reserved but no condition or Covenant this fine is a record of great credit and upon this Fine are made foure proclamations made openly in the common Pleas in every Terme and for foure termes together and if any man having right to the same make not his claime within 5. yeares after the proclamations ended hee looseth his right for ever an Infant a Feme covert a Madman or one beyond the Seas only excepted whose rights are saved so that he claime within 5 yeares after full age death of her husband recovery of the Wits or returne beyond the Seas it barreth the heires in taile presently whether the heire doth claime within 5. yeares or not if he claime by him that levied the fine A recovery barreth entailes and all remainders and reversions that should take place after the entailes saving where the King is giver of the entaile and keepeth the reversion to himselfe then neither the heire nor reversion is barred by the recovery And now by use recoveries are become common assurances against entailes remainders and reversions and the greatest security purchasers have for their money for a Fine will barr the heire in taile but not the remainders nor reversions Why recoveries doe barr remainders and reversions but a common recovery will bar them all and the reason why the heires remainders and reversions are thus barred is because in strict law the recompence adjudged against the cryor that was vouchee is to goe in succession of estate as the Land should have done and then it was not reason to allow the heire the liberty to keep the land it selfe and also to have recompence and therefore he loseth the Land and is to trust to the recompence Vpon Feoffements and recoveries the estate doth settle Vpon Fines Feoffements and recoveries the estate doth settle according to the intent of the parties as the use and intent of the parties is declared by word or writing before the act was done as for example if they make a writing that any of them shall levie a Fine make a Feoffement or suffer a common recovery to the other but the use and intent is that one shall have it for his life and after his decease a stranger to have it in taile and then a third in Fee-simple in this case the Law setteth an estate according to the use and intent declared And that by reason of the statute of 27 H. 8. of uses concerning the land in possession to him that hath interest in the use or intent of the fine Feoffement or recovery according to the use and intent of the parties The Statute of 27 H. 8. doth not passe land upon the payment of money without a Deed indented and inrolled Vpon this Statute is likewise grounded the fourth and the fifth of the sixt conveyances viz. Bargaines and Sales and Covenants to stand seised to uses for this statute wheresoever it findeth an use conjoyneth the possession to it and turneth it into like quality of state condition rent and the like as the use hath But the Parliament that made the statute did foresee that it would be mischievous that mens lands should suddenly upon the payment of a little money be taken from them peradventure in an Alehouse or a Tavern upon straineable advantages did therefore gravely provide another Act in the same Parliament that the Land upon payment of this money should not pass away unlesse there were a writing indented made between the said 2. parties and the said wrighting also within six months inrolled at some of the Courts of Westminster or in the Sessions Rolls in the Sheir where the land lieth The first conveyance by covenant is a conveyance to stand seised to uses it is in this sort A Covenant to stand seised to a use needeth no Inrolement as a Bargaine and Sale to an use doth so as it be to the use of Wife Child or Cousin or one he meaneth to marry a man that hath a wife and children brethen and kinsfolke may by writing under his hand and Seale agree that for him they or any of their heirs he wil stand seised of his lands to their uses either for life in taile or in Fee so as he shal see cause upon which agreement in writing there ariseth an equity or honesty that the land should
and if it be presented at the next court Ceaque use shall be admitted thereunto But if it be not presented at the next court according to the custome then the surrender becometh void and so it was clearly holden Pasch 14 Eliz. in the court of common Pleas. the Lessee afterwards taketh a Lease for twenty years upon condition that if he doth such an act then the Lease for twenty yeares shall be void and after the Lessee breakes the Condition by force whereof the second Lease is void yet the Lease for forty yeares is surrendred for the Condition was annexed to the Lease for twenty yeares but the Surrender was absolute So if a man make a Lease for forty years and the Lessor grants the Reversion to the Lessee upon Condition and after the Condition is broken the terme was absolutely surrendred And the diversity is when the Lessor grants the Reversion and when the Lessee grants or surrenders his Estates to the Lessor for a Condition to a Surrender may revest the particular Estate because the Surrender is conditionall But when the Lessor grants the Reversion to the Lessee upon Condition there the Condition is annexed to the Reversion and the Surrender absolute If Lessee for yeares accept a new Lease of his Lessor to begin presently or at a day to come that is a present surrender of the first Lease And if Lessee for forty yeares take a new Lease to him and his Son by Deed indented for twenty yeares by which Deed the Lessor covenanteth that if the Son dye within the terme that then the first Lease shall stand in his force the same Lease or any other thing notwithstanding although the Son dye within the said twenty yeares yet this Covenant shall not revive the first Lease And if a Lease be made for twenty yeares to begin at Michaelmas and after before Michaelmas the Lessee excepteth a new Lease of his Lessor of the same land by Deed indented for sixteen yeares the Lessee upon his entry at Michaelmas is but Termor for sixteen yeares and that is by reason of the Deed indented and the agreement which amounteth to a Grant of the first Lease c. for an interest of a terme may not be surrendred before that it be in possession nor the Lessee shall not have Ejectione firmae nor Action of Trespasse before he be in possession But he may forfeit or grant such interest of a terme yet some hold that such interest may by acceptance of a new Lease be surrendred very well And they take a diversity where the second Lease may determine before the beginning of the first then the acceptance of that is no Surrender otherwise it is if it containe a day after the beginning of the other then they say that it is a Surrender But it is a Principle that it behoveth that he that surrendreth be seised or possessed of the Estate and of the thing surrendred at the time of the surrender made for a surrender made by Tenant for life disseised is void for that he hath but a right at the time of the surrender the same Law of a surrender made by a Fome which hath title to Dower is void Also a man may not surrender a right to a terme and a man may not surrender that which he hath not as a terme which is to begin at a day to come nor a terme before that the Lessor which surrenders hath entred lawfully by force of his Lease for a Release made to such Lessee by the Lessor before the beginning and before the possession had of his Lease is void Also the Lessor remaineth possessed of the Demesne and hath not any reversion before that And in every surrender these foure things are to be considered and observed viz. Foure things to be observed in every surrender 1. It behoveth him that surrendreth to have in him the thing surrendred at the time 2. The surrender ought to be made of the thing leased for this word Surrender is of such effect to give againe and nothing may be given againe but that which was created before 3. It behoveth alwaies that there be a privity between him that surrendreth and him to whom the surrender is made which privity is defeated and destroyed by granting over of their Estates 4. And it behoveth also that he to whom the Surrender is made hath in him and in his right the immediate Reversion or Remainder of the thing at the time of the Surrender made and of such Estate so that the thing surrendred may draw therein for surrender made to him which hath but a right of Reversion as to the Disseisee or to Tenant in Law as to the Heire or to the Lord by Escheat before that they have entred or have seisin or possession in Deed or to the Discontinuee of Tenant in taile c. is a void surrender And note that there is a Surrender in Deed and a Surrender in Law of a terme for yeares Surrender in deed and Surrender in Law and therfore if Tenant for yeares and the Lessor make a Feoffment or Lease for life that shall be taken the Livery of the Lessor and the surrender of the Lessee for the terme thereby is extinct and yet there is not any word of surrender but it shall be so taken by the Judgment of Law which alwaies incline the words of the parties to the minds of the parties But if Tenant for life and his Lessor make a Feoffment in fee by Deed that is the Feoffment of Tenant for life and the Confirmation of the Lessor although there be not any word of Confirmation in the Deed and that shall not be taken to be a Surrender in Law But if Tenant for life speaketh that he agreeth or sheweth his contentment to enable him in the Reversion onely to make a Feoffment and Livery and Seisin to a stranger that is a Surrender in fait But if he surrender by word in another County that is not a Surrender untill he to whom it is made hath entred And it is to be thought that if Tenant for life take a new Estate of his Lessor for twenty yeares that this is a surrender in Law of the Lease for life for otherwise the second Lease was made to him when he was seised or possessed of the first Lease Surrender by expresse words Note that a Surrender by expresse words is where the Lessee saith to the Lessor that his will is that he shall have againe the land or that he will no longer occupy the same if the Lessor thereunto agree and enter that is a Surrender and else not But if Tenant for life waive the possession and the Lessor enter that is no Surrender In Chenies case it was resolved in Curia Hardorum 27 Eliz. that where he in Reversion enfeoffed his Lessee for yeares to the use of others that although the Lease be surrendred and extinguished by the Common Law yet by the saving of the Statute of 27 H.
claiming under him with penalty in the Statute of 27. Eliz. Cap. 1. This doth not extend to the avoyding of any grant c. upon good consideration and bona fide if any such conveiance be made with clause of revocation or alteration at his pleasure by writing and after he shall bargaine demise sell grant convey or charge the same Lands c. for money or other good consideration the conveyance not revoked or altered then the conveyance c. shall be void against the Barganees c. and all claiming under them lawfull Mortages only excepted A Lease was made of a Messuage and Lands for yeares A grant of land Habendum the reversion if the Lessee so long should live and afterwards the Lessor by his Deed indented granted the Messuage and Land to another to have and to hold the reversion to the grantee for life cum per mortem sursum redditionem vel forisfacturam of the Lessee aut aliter acciderit reddendo inde annuitie to the Grantor and his heires when the said reversion shall happen nine shillings and foure pence per Annum The Lessee dieth the Grantor of the reversion distraineth for the arrearages of the rent aswell before the death of the Lessee as afterwards whereupon four points were clearely resolved upon by the Court. That by the Demise of a Messuage and Land for life the reversion thereof doth passe but by the Grant of a reversion land in possession doth not passe Lofields case 10. pars fo 107. Plowden 197. A grant of the reversion Habendum the land By the Grant of a Messuage and Land Habendum revertionem c. or life after the death of the Lessee c. that the Habendum is good for in judgement of law nothing but the reversion is granted by the Premises and as in Throchmertons case Plowden Coment fo 147. when the reversion is granted habendum the land the habendum is adjudged good so when the land is granted habendum the reversion and after the death of the Lessee c. is in consideration as much to say as to take effect in possession after the death c. Also the habendum had been good although no mention had been made either of the Land or of the reversion in the habendum for the Office of the habendum is to limit the estate of the land contayned in the Premises It was resolved that by the said reservation the rent shall not commence before the reversion fall in possession and these words cum revertio predict acciderit shall be expounded according to the intention of the parties which was not that the Grantee for life should pay the rent before that he may take the profits to make the rent of them That the distresse was well taken for the Arrerages after the death of the Lessee and not for the arearages incurred before Statute released by matter in Law A statute was acknowledged the 26. of May the Cognusee by his release Dated the 25. May before released to the Cognusor all demands from the beginning of the world untill the making therof and sealed and delivered the release as his Deed the 27. May following the statute is freely discharged for the day of the delivery is dies confectionis but if the words had been untill the date or day of the Date of these presents then otherwise it had been See Dier fo 307. Defeasance of a statute mis-recited the statute becometh single If a Defeasance be made of a statute which is recited to bee made the tenth day of May where indeed it beareth Date the first day of May the Defeasance is void for the Mis-prision of time for the Law saith that in so much as it may be that there were two statutes the one dated the first day and the other the tenth day the time of the date is materiall Plowden fo 393. Attornement needlesse A reversion granted for yeares for consideration of money doth passe without Attornement Coke 8 pars fo 941. for let the case be that there is Lessee for terme of yeares or life rendant-rent Afterwards the lessor by Indenture for the consideration of 50 l. demiseth and granteth the Premises to another for 90. yeares rendant 40 pounds per annum although the first Lessee doth never Attorne yet the second demise shall be good and shall passe as a Bargaine executed by the statute of 27 H. 8. whereunto there needeth no Attornemnt or Inrolement of the Deed because it is not but a terme for yeares and no Frank-tenement And note that if a man for money do enffeoffe Alien and grant Land to one and his heires or in taile or for life by deed indented and inrolled that doth amount to a bargaine and sale and the land shall pass without livery and Seisin Attornement needlesse A grant of a reversion of Land habendum the land from the end and expiration of a former Lease in being is a good lease and needeth no attornement A demise of the reversion of Land Attornement needles habendum the reversion of the land from the end and determination of a former lease in being is a good Lease and needeth no attornement If a man make a gift in taile or a Lease for life Remainder voide the remainder to his owne right heires this remainder is void and he hath the reversion in him for the Ancestor during his life beareth in his body in the judgment of the law all his heires and this appeareth in a common case that if Land be given to a man and his heires all his heires are so totall in him that he may give the land to whom he will So it is if a man be seised of Lands in Fee by Indenture make a Lease for life Remainder voide the remainder to the heirs males of his owne body this is a void remainder for the donor cannot make his owne right heire a purchasor of an estate taile without departing of the whole fee-simple out of him as if a man make a Feoffement in Fee to the use of himselfe for life and then to the use of the heires males of his body this is a good estate taile executed in himselfe and the limitation is good by way of use because it is raised out of the estate of the Feoffees which the Feoffor departed with for a limitation of a use to himselfe had been good without question Cokes Littleton fo 22. b. The King may make a Lease for yeares rendant rent to a stranger and that is a good reservation Conditions Entries and re-entries may not be given or reserved to strangers and the stranger may distraine for it or have an Action of Debt after the lease determined and that is by reason of his prerogative which he hath above all persons for he is not bound so strictly by the lawes as others are but in the case of a common person otherwise it is because that no rent which is properly
next jure propinquitatis that is by right of representation and by right of propinquity And Littleton meaneth of the right of representation for legally in course of discent he is next of blood inheritable And the issue of C. doth represent the person of C. and if C. had lived he had been legally next of blood And whensoever the Father if he had lived should have inherited his lineall heire by right of representation shall inherit before any other though a Mother be jure propinquitatiâ—… neerer of blood But if there be Father and Son and the Father hath a brother that is Uncle to the Son and the Son purchase lands in fee and die without issue living the Father the Uncle shall have the lands as heire to the Son and not the Father yet the Father is neerer of blood because it is a Maxime in Law that inheritance may lineally descend but not ascend yet if the Son in this case die without issue and the Uncle enter into the land as heire to the Son and after the Uncle dieth without issue living the Father the Father shall have the land as heire to the Uncle and not as heire to his Son for that he cometh to the land by collaterall discent and not by lineall ascent and his Uncle enter into the land for if the Uncle in this case doth not enter into the land then cannot the Father inherit the land for there is another Maxime in Law herein implied That a man that claimeth as heir in Fee-simple to any man by discent must make himself heire to him that was last seised of the actual Freehold and inheritance And if the Uncle in this case doth not enter then had he but a Freehold in Law and no actuall Freehold but the last that was seised of the actuall Freehold was the Son to whom the Father cannot make himself heire And therefore Littleton saith And his Uncle enter into the land as he ought by the Law to make the Father to inherit as heire to the Uncle Note that true it is that the Uncle in this case is heire but not absolutely heire for if after the discent to him the Father hath issue a Son or a Daughter that issue shall enter upon the Uncle And so it is if a man hath issue a Son and a Daughter the Son purchaseth land in fee and dieth without issue the Daughter shall inherit the land but if the Father hath afterward issue a Son this Son shall enter into the land as heire to his brother and if he hath issue a Daughter and no Son she shall be Co-partner with her Sister As he ought by the Law These words as a Key do open the secrets of the Law for hereupon it is concluded that where the Uncle cannot get an actuall possession by entry or otherwise there the Father in this case cannot inherit And therefore if an Advowson be granted to the Son and his Heires and the Son die and this discend to the Uncle and he die before he doth or can present to the Church the Father shall not inherit because he should make himself heire to the Son which he cannot do And so of a rent and the like But if the Uncle had presented to the Church or had Seisin of the rent there the Father should have inherited For Littleton putteth his case of an entry into land But for an example if the Son make a Lease for life and die without issue and the Reversion discend to the Uncle and he die the Reversion shall not discend to the Father because in that case he must make himself heire to the Son If the Father make a Lease for years and the Lessee entreth and the Father dieth the eldest Son dieth before entry or receipt of the rent the younger Son of the half blood shall not inherit but the Sister because the possession of the Lessee for years is the possession of the eldest Son so as he is actually seised of the Frank-tenement and the Inheritance and consequently the Sister of the whole blood is to be heire And so if lands be holden by Knights service and the eldest Son is within age and the Guardian entreth into the lands An so likewise if Guardian in Socage enters But in the case aforesaid if the Father make a lease for life or a gift in tail and dieth and the eldest Son dieth in the life of Tenant for life c. the younger brother of the half blood shall inherit because the Tenant for life or Tenant in tail is seised of the Freehold and the eldest Son had nothing but a Reversion expectant upon the Freehold and therefore the youngest Son shall inherit the land as Heire to his Father who was last seised of the actuall Freehold And albeit a rent had been reserved on the estate for life and the eldest Son had received the rent and died yet it is holden by that the younger brother shall inherit because the seisin of the rent is no actuall seisin of the Freehold of the land but Liber Ass part 2. seemeth to the contrary Ideo quaere He that claimeth Lands Tenements Maxime upon collaterall discent or Hereditaments as collaterall heire to any one must claim from such an one that had an actuall possessession and died actually seised of the Frank-tenement and the inheritance in Fee-simple of those lands which he so claimeth by discent and not from such a one who had but a possession in Law or a reversion in Fees expectant on a Frank-tenement discendible unto him But to the lineall heire it sufficeth that the Ancestor should have been heire if he had lived But if such a collaterall heire claime from a collaterall Ancestor that had a possession in Law by his own purchase or reversion in Fee-simple expectant on a Frank-tenement by his own purchase it is sufficient Actuall possession Note that an actuall possession must be gained either by a mans own act or by the actuall possession of another but if neither by his own act nor by the possession of another he doth gain no more then discendeth unto him then the brother of the half blood shall inherit Possessio quid And this word Possessio is no other but pedis positio and extendeth onely to things whereof a man by his entry or other act may gain an actuall possession for when the eldest Son hath not an actuall possession or if it be such inheritance whereof any possession may not be gained per pedis positionem or by any other act then the inheritance by the Law shall discend to the brother of the half blood As for example The King by his Letters Patents createth a Baron and giveth the Dignity to him and his Heires and he hath issue a Son and a Daughter by one venter and a Son by another venture and dieth the eldest Son dieth without issue To whom shall the dignity discend To the younger Son for it may not be said that the
THE LAW OF CONVEYANCES SHEWING The Natures Kinds and Effects of all manner of Assurances with the manner of their several executions and operations ALSO Directions to Sue out and Prosecute all manner of Writs of Extent Elegit and Judiciall Writs upon Statutes Recognizances Judgments c. A Warrant to Summon a Court of Survey And the Articles to be given in Charge and Inquired of in that Court With an Exposition of diverse obscure Words and Termes of Law used in Ancient Records c. AND ALSO Plaine Decimall Tables whereby may be found the true Values of Lands Leases and Estates in Possession or Reversion With a Concordance of Years c. By JOHN HERNE Gent. LONDON Printed by T. R. for Hen. Twyford and Tho. Dring and are to be sold at their Shops in Vine Court Middle Temple and at the George in Fleetstreet neer Cliffords Inne 1656. TO THE READER Courteous Reader THIS Tract for the drawing and right managing of all the Essentiall and Accidentall parts of the Laws touching Conveyances and Assurances which before lay diffusedly in the Books of Law in large Volumes are here now methodically handled being Composed by a very eminent Lawyer and Great Conveyancer in the City of London lately deceased which coming into my hands and being by men of good judgement held to be of excellent use I was perswaded to make the same publick for the Generall good which I have done accordingly And for the further advantage of those that desire knowledge in Records and in Buying and Selling Land c. I have added an Exposition of many obscure and abstruce words used in the Book of Doomsday and in other ancient Records Charters and Writings And likewise very exact Decimall Tables wherby the value of Lands sold or let in Possession or Reversion may easily be knowne And also a Concordance of years from King William the Conqueror to this present time in which the yeare of our Lord and the yeare of the Reigne of each King are plainly set down I doubt not but this peice will be of much use and little Charge which is the onely desire and end of J. H. THE LAW OF CONVEIANCES OR A perfect explanation of all the essentiall and accedentall parts of all sorts of instruments for the conveying of all things whether corporall or incorporall and what words actions and circumstances are required by Law thereunto THe Office of the Premises of the Deed is to expresse the Grantor Grantee Premises and the thing to be granted The Office of the Habendum is to limit the Estate and to explane the Premises Habendum And his Office is to give to enlarge and to be persuing to the Estate contained in the Premises of the Deed but his Office is not to be repugnant contrary lesser nor to exclude any of the interest before given in the Premisses for if it so doth the estate precedent given shall stand and the habendum shall be voide As if a Feoffment be made to one and his heires by the Premises of the deed Habendum to him and his heires during the life of I. S. Or if a Feoffment be made to one and his heires by the Premises of the Deed Habendum to the lessee for terme of his life those words of limitation during the life of I. S. or during the life of Tenant for life are void words for that the Habendum is repugnant to the Premises vide Lo. Cokes 2. Reports Baldwins Case Fol. twenty three touching repugnancy between the Premises and the habendum Sometimes the habendum doth controll and qualifie the generall implication of the estate which passeth by construction of Law by the Premises of the Deed as for example A Lease to two habendum to one for life the remainder to the other for life this limitation doth alter the generall implication of the joyntenancy which would have been without the habendum and therefore the habendum voide in that the Premises doth make them joynttenants the habendum would sever the joynter and make the one to have the whole during his life and the other the whole after him Plowden fo 133. vide Sir Ed. Coke 2. Par. fo 55. Buchlers case such a remainder is good And if two acres bee given to two habendum the one acre to one and the other to the other that is a voide habendum because it excludeth the interest of the one in the one acre and of the other in the other acre where the Premises of the deed hath made them joynt-tenants of every parcell Remainders Every remainder ought to have these severall properties and things following as Notes and Rules to discerne and know when remainders are good But note that where a remainder is once well raised by the Livery and Seisin though the perticular estate be afterwards avoided by condition in Law as by a recovery in wast or if a Feme Tenant for life disagree to the Livery after the death of her husband c. Yet he to whom the remainder is limited shall be Tenant in taile in remainder vi 1. part Shellies case fol. 101. good cases upon this An estate precedent made at the same time the remainder doth commence As if the lessor confirme the estate of his Lessee for yeares the remainder in Fee this remainder is void because the estate for yeares was made before the remainder and not at the time of the remainder If the lessor disseise his Tenant for life and then makes a new Lease to him for life the remainder in in Fee that remainder is void because the Tenant for life is remitted to the estate which was made long time before the remainder appointed so the estate precedent was not made at the same time of the remainder and therefore the remainder void So if the heire endow his mother the remainder in Fee this remainder is void though Livery and Sesin be made to the mother because the dowre hath relation to the death of her husband and so for that the estate precedent was not made when the remainder was appointed the remainder is voide The perticular estate must continue when the remainder shall vest and the remainder must commence in possession at the very time the perticular estate endeth as well in Wills as in the grants for there may not a meane time between them As if one make a Lease for life and that a day after the death of Tenant for life it shall remaine over this remainder is void because the first estate is determined before the appointment of the remainder So if one make a Leese for life upon condition that if he doth not such an Act that his estate shall cease and that then it remain over in Fee this remainder is void because it doth not vest during the estate precedent The remainder must be out of the lessor executed or executory at the time of the Livery and seasin made and at the time of the possession taken by
the perticular Tenant If a man hath issue a Son of nine yeares and makes a Lease till his son shall come to his full age then the remainder to another in Fee nothing vesteth forthwith to him in remainder and the remainder is utterly void and yet it may take effect because the remainder ought to passe out of the lessor forthwith executed or executory either to him in remainder or to be in abeyance or custodie of the Law and a franktenement in such case cannot be an abeyance and therefore the remainder void Lease for yeares the remainder over in Fee if the tenant enter before livery his terme is good but the remainder is void because the remainder was not out of the lessor at the time of the possession taken by the particular tenant but if I appoint the Lease to commence at Michaelmas next the remainder over in Fee there although the lessor make Livery to the Lessee yet the Livery and Seisin and the remainder shall be void because there was no estate present whereunto the Livery may be annexed and whereunto it might unite in the meane time HEE to whom the remainder is appointed must at that very time be a person able and of capacity to take the remainder or else the remainder shall be void and it is a principle in Law that in all gifts be they by devise or otherwise it behooveth to have a Donee in esse which hath power and capacity to take the thing given at the very time when it ought to vest for if there be not any such in rerum natura when the thing ought to vest There is a diversity between a remainder limited by a particular name for a remainder limited by a general name may be good though the person be not in esse at the time of the remainder limited as in this case next following This remainder to I S may be good yet he hath no heir at the time of the remainder limited so of a remainder limited Primogenito filio But a remainder limited in particular by name of Baptisme and Sirname is not good if the partie be not in esse Coke 2. part Fo. 51. Sir Hugh Cholmleis case the gift shall be void Plowden Fol. 345. And therefore if a Lease be made to one for life the remainder to the Mayor and Commonalty of Cirencester which then have not capacity to purchase Lands and after they have gained a capacity to purchase and then the tenant for life dyeth the Mayor and commonalty shall not take the remainder because he was not a person able at the time of the remainder appointed to take it so if the remainder were appointed to him whom tenant for life shall name If a Lease be made to one for life the remainder to I. S. in Fee who is a monke professed and afterwards is derained and then the Tenant for life dyeth I. S. shall not have the remainder because he was not a person able to take it at the time of the remainder appointed But if Land be given to one Et filio suo primogenito and he hath no issue at the time of the gift and afterwards he hath a son that Son shall have the Land by way of remainder and yet the remainder was not out of the lessor neither did it vest at the time of the Livery but the law shall conster the Livery and limitation most strong against the lessor Plowden 296. Lessee for yeares the remainder to the right heires of I. S. this remainder is utterly voide and the Livery thereupon is voide because there is no person capable to take the Franke tenement at the time and Livery Seisin may not be in suspence where the frank-tenement may not be in obeysance but Affees may where the franck-Tenement is well disposed and where there is a Tenant thereof to the Precipe THe thing whereof a Remainder shall be created must be in esse before and at the time of the appointment and creation thereof or else the remainder is voide For if I grant a rent out of my Land Vide fo 38. the remainder in Fee this remainder is void because the rent was not in esse before But at the beginning of a grant a man may grant a rent in such manner as pleaseth him And a man may grant a rent newly created to begin after the death of I. S. But when a rent is in esse or a reversion remainder or other thing a man may not make it to be in esse for a time and to cease for another time as to grant it to one after the death of another or from a day to come reserving to him an estate in the meane time NO remainder may commence upon any repugnancie or impossibility precedent nor upon any condition that goeth to the destruction of the perticular estate for conditions alwaies inure in a privity so that none shall take advantage of conditions but those which are privies for none shall enter for a condition broken but onely the Feoffor donor and Lessor and their heires And as none shall avoide an estate formerly made by the breach of a condition but onely the privies see none shall take a new estate by the performance of a condition but onely the privies If a Lease be made to two the remainder over in Fee after the death of the first of them this remainder is voide because the Servivor shall hold place after the death of the first and therefore repugnant and void If a Lease be made for life the remainder for life and if the first tenant for life dy then the remainder over to a stranger over in Fee this remainder dependeth on a repugnancy precedent and therefore voide If a Lease be made for yeares rendant rent and upon condition of none payment the remainder to a stranger and Livery is made accordingly that is a void remainder which doth commence upon a repugnancy precedent and which dependeth upon a condition which goeth to the destruction of the perticular estate and especially where such a remainder is created by livery and sesin But by a limitation of a devise or by limitation of use such remainder is good as a Feoffment to the use of I. S. for years and upon payment by him of twenty pounds the remainder to I. D. for life this is a good remainder So it is where the remainder is created by the limitation of a last will as if a man devise his Lands to his wife c. If a man make a Lease for life rendant rent and upon condition that if the rent be behind then the remainder to a stranger in Fee after the first estate ended that remainder is void because conditions inure alwaies in a privity c Lessee for life upon condition that if I.S. pay the lessor twenty pounds that then the lessor shall enter upon Tenant for life and then the remainder over to another that remainder is void because by the
entry the first livery is made void and there is no perticular estate continuing whereof a remainer may depend If a man devise his Lands to his wife for her life upon condition that if she marrie that then the Land shall remaine to F. M. in taile this is a good remainder for the construction of this demise is to make the same condition to be a limitation and not a condition and upon a limitation or determination of a perticular estate which is taken and not uncertaine a remainder clearely may well depend As if a Lease be made for life upon condition that if the Lessee die the remainder to a stranger that is a good remainder because it commenceth upon the determination of an estate which is certaine and not uncertaine for every man must die and every terme must end and therefore it is no condition but a limitation or appointment when the terme shall commence If I make a Lease for life upon condition that if the Lessee doth such an act he shall have fee and he doth it accordingly there he shall have Fee because he is privie to the condition and therefore shall take the benefit thereof A Lease made for yeares if the Lessee shall so long live which is a word conditionall and doth precede the remainder therefore the remainder which doth commence upon a condition is voide Plowden fo 25. But if I make a Lease for life upon condition that if the Lessee doth such an act that then hee shall have Fee and he doth it accordingly there he shall have fee because he is privie to the condition Lessee for five yeares upon condition that if he pay me twenty pounds within two yeares he shall have fee the Fee passeth forth of the lessor forthwith Lessee for yeares upon condition that if I. S. marry my daughter during the estate for life that then it shall remaine unto him this is a good remainder and yet it doth commence upon condition for there is an estate whereupon a remainder may be founded and the condition doth not trâ—nch to the destruction of the particular estate If I make a lease for yeares the remainder for life upon condition that if he in remainder doth not such an act that the remainder shall be void Now before the condition is broken the remainder is good and in him to whom it is appointed but if the condition be broken then the remainder is out of him and in the person of lessor again Lessee for life the remainder to A his wife for her life if she live so long sole and unmarried the remainder to D. their Son for his life the remainder to D. is good though it commence upon a condition because the particular estate continueth and the condition goeth not to the destruction of the particular estate and the first remainder doth vest during the particular estate which maketh the latter to be good though it commence upon the condition But quaere whether the 2. remainder shall begin upon her marriage or death WHen a particular estate which doth support a remainder may determine before the remainder may commence there the remainder doth not vest forthwith but dependeth in contingency Contingent Remainders Vid. fol. 29. As if one make a Lease to I S. for life and after the death of I D. the remainder to another in Fee this remainder dependeth in contingency for if I S die before I D. the particular estate is determined before the remainder can commence So if a Lease be made to A for life and if B die before A that then it shall remaine to C for life this is a good remainder upon contingent if A survive B A Lease is made to one for life the remainder to the right heires of I S. this remainder is good upon contingent that is if lessee for life survive I. S. or else not A lease to A. for life the remainder to B for life if B. dy before A. the remainder to C for life this is a good remainder on contigent if A survive B Plowden Colethirst and Beiushin H. leased to I. for the life of I. after the death of H. to I and his heires this is a good remainder upon contingent for if H. die living I. then the remainder is good but if H. survive I. then the remainder is voide WHen a remainder is limited to take effect by doing of an act which act shall be the determination of the particular estate yet if the act depend upon a casualty and meere incertainty whether it shall happen or not there the remainder vesteth not forthwith but dependeth in contingency Vide fo 51. a good note if a man make a Feoffment to the use of B until C. shal come from Rome into England after from such coming to remain over in fee this remainder dependeth in contingency for it is uncertain whether I. will ever come into England or not and a remainder ought to commence in possession when the particular estate endeth as well in Wils as in grants for there may not be a mean time between them And every remainder contingent ought to vest either during the particular estate or eo instante Contingent remainder that it determineth for if the particular estate be ended or determined in deed or in Law before the contingency happen then the remainder is void As for example Fr. Archarde was seised of lands in fee holden in Socage and by his will in writing devised the Land to Ro. Archarde the father for his life and after to the next heire male of Robert and to the heires males of the body of such next heir male Ro. hath issue Jo. Fr. dieth Ro. enffeoffeth Ren. with warranty upon whom J. entreth and Ren reenters and then Ro. dyeth the right heir male of Robort may not enter for the forfeiture in the life of Robert for hee may not be heire as long as Robert liveth Note that By the Feoffment of tenent for life the remainder is destroyed for by the Feofment of Ro. his estate for life was determined by condition in law therunto annexed and that may not be revived afterwards by any possibility therfore the contingent remainder destroyed So if Tenant for life the remainder to the right heirs of I S be disseised and the disseisor levies a fine at the common Law the right heir of I S shall be bound But in the former case if the tenant for life had been disseised and died yet the remainder is good for the particular estate remaineth in right and might have been revested but not in this case Archers case prima pars Lo. Coke Remanere definitio Remanere dicitur quasi terra remanens A remainder is that which passeth forth of the Lessor at the time of the perticular estate made Reversionis definitio A reversion is that which is left in him that made the perticular estate reversion is derived of this word revertor so
that reversio terrae is the returning of the Land which is as much in sence as my Lord Dyer defineth it as the Land returning so that reversio terrae is terra revertens which is the Land in a certain degree that is to say when it is discharged of the perticular estate and possession thereof is come thither where the revertion was Plowden 160 196. Creation of Estates The Creation of all manner of Estates by the Habendum of the Deed. TO have and to hold to the said William Hum her his Executors Administrators and Assignes from the ensealing and delivery of these presents unto the end and terme Habendum and for and during the whole time and terme of a hundred years from henceforth then next and immediately ensuing and fully to be compleated and ended if the said William Humber so long shall live and if it shall happen the said William to decease before the end and determination of that said Terme living the said Margaret then to have and to hold the same messuage c. from and immediately after the decease of the said William unto the said Margaret for and during the whole Terme of 100. yeares from thenceforth then next and immediately ensuing and fully to be compleated and ended if the said Margaret so long shall live and keep her selfe sole and unmarried and if it shall happen the said Margaret to decease before the end and determination of the said tearme or not to keep her selfe sole and unmarried during the said tearme then to have and to hold the said Premises unto Henry Humber Habendum To have and to hold to the said Edmund Clark and his Assignes immediately from and after the death and decease of the said Maud Symmes unto the end and tearme and for and during the whole time and tearme of 100 yeares from thenceforth next and immediately following fully to be compleated and ended if the said E C. so long live and to have and to hold the said Messuage c. to the said Jane C. and her Assignes immediately from and after the decease of them tâ—e said M. S. and E. C. unto the end and tearme of 100 years from thenceforth c Note that in such a Lease all those that shall take in remainder Note must be made parties to the Lease To have and to hold to the said R. I. and his Assignes from the feast of St. John Baptist last past before the date hereof c from hence forth from the ensealing and delivery of these presents unto the end and terme and for during the whole terme of his naturall life and from and immediatly after the death of him the said R. I. the said Messuage or Tenement and all other the Premises with all and singular their and every of their appurtenances to remaine and be unto the said I. I. and her assignes for and during the tearme of her naturall life And after the death of the said R. and I. c. To have and to hold unto the said R. I. his Executors and Assignes for the time and terme of 99 yeares from henceforth next ensuing fully to be compleated and ended if G.I. R. I. and M. I. the sons and daughters of the said R. I. partie to these presents by Joane his now wife or if any of them the said G. R. and M. children of him the said R. I. partie to these presents as aforesaid shall so long live To have and to hold to the Lessee and his heires during the lives of A. B. C. and the longest liver of them To prevent an Occupant this limitation shall prevent the occupant and yet the Lessee may assigne it to whom he will or if he hath already an estate for another mans life it were good to assigne his estate to diverse men and their heires during the life of ceste que vie For If A. hath Land conveighed to him for the life of B and A. dieth without making any estate of it whosoever first entreth into the Lands after the death of A shall have the Land during the life of B. For to the heire of A. it cannot goe because it is no inheritance nor to his Executors because it is not a testimentary estate that should goe to the Executors as goods and Chattels Limitations which do determine an estate without entrie or claime vide plus fo 17. To have and to hold to the Lessee quousque viz. untill I. S. come from Rome A Lessee to a woman quam diu casta vixerit or to a Widdow for her life si tam diu in pura viduitate vixerit or to another dummodo solverit talem redditum or quamdiu as the Lessee shall be dwelling on the Mannor or quamdiu the Lessee se benegesserit donee us quead quousque tam diu to have to the Lessee for 100. yeares if the Lessee so long live all these are limitations which do determine the estate without any entry or claime A Lease is made to A. and his assignes habendum to A. during his and the lives of B. and C. this is a good Lease for these three lives and the longest liver of them Lo. Coke 5. part fo 13. A Lease to A. and B. for their lives A. dieth B. shall have it during his life it is an interest But if a Lease be made to I. S. during the life of A. and B. there if one of them die the estate is utterly determined for that is a limitation Habendum reddendum To have and to hold unto the said I. W. his Executors and Administrators from and immediately after the time that the estate tearme and interest which the said I G now hath of in or to the Premises shall happen to be ended by the death forfeiture surrender or other expiration of the estate and terme of the said I G. formerly granted by coppy of Court-Roll by Sir S. P. Knight deceased to the said I G. and I W. and to one Do. White deceased for the tearme of their lives and the longest liver of them successively at the will of the Lord according to the custome of the Mannor of R. aforesaid which said Copy of Court-roll beareth Date the fifth day of Aprill in the ninth yeare of the raigne of our Lady Q. E. for and during the tearme of 99. years from henceforth then next and immediately ensuing and fully to bee compleated and ended Reddendum if the said I. W. A. W. and B. W. or either of them so long shall live yeilding and paying therefore yearely unto the said H. P. his Heires and Assignes during the said respective tearme hereby limited at the Mannor house of the said Sir H. P. at Saparton aforesaid the sum of thirteen shillings four pence of currant english money at the feasts of St. Michaell the Arch-angell and the Anuntiation of the blessed Virgin Mary by equall portions the first payment thereof to begin and to be made
go according to those agreements nature and reason allowing those provisions which equity and honesty is the use and the use being created in this sort the statute of 27 H. 8. containeth the estates of the Land as the use is appointed and so this covenant to stand seised to uses is at this day a conveyance of land and with this difference from a bargaine and sale in that this needs no inrolement nor needeth not to be a writing indented as a bargain and sale must and if the party to whose use he agreeth to stand seised of the land be not wife or Child Cosin or one that hee meaneth to marry then will no use arise and so no conveyance Vpon a fine Feoffement or recovery a man may limit the use to whom he will without consideration of bloud or money otherwise in a bargaine and sale or Covenant for although the law alloweth such weighty considerations of marriage and bloud to raise uses yet doth it not admit so trifling considerations as of acquaintance Schooling service or the like but where a man maketh an estate of his land to others by Fine Feoffment or Recovery he may then appoint the use to whom he listeth without respect of marriage kindred money or other thing it is not so when he maketh an Estate but agreeth to stand seised nor when he hath taken any thing as in the cases of Bargaine and Sale and Covenant to stand seised to Uses The last of the six conveyances is a Will in writing which course of conveyance was first ordained by the statute of 32 H. 8. before which statute no man might give land by will except it were in a Burrowgh-Towne where there was a speciall custome that men might give their lands by Will as in Lond. and many other places In what manner the statute of 32. H. 8. giveth power to dispose of lands by Wil. By the Statute of 32 H 8. a man may give lands by will in this sort first it must be by Will in writing Secondly he must be seised of an estate in Fee-simple for tenant for another mans life or tenant in taile cannot give lands by Will by that statute If a man be seised of Capite Lands and Socage he cannot devise but two parts of the whole Thirdly he must be solely seised and not jointly with another and then being thus seised for all the Land he holdeth in socage being tenure he may give it by the Will except he holdeth any peece of Land in capite by Knights service of the King and laying all his lands together he can give but two parts by will for the third part of the whole aswell in socage as in capite must discend to the heire to answer Wardship Livery and Primmer seisin to the Crowne And so if he hold Lands by Knights service of a subject he can devise but two parts of his Lands and the Lord by Wardship and the heire by discent is to hold A conveyance by devise of Capite Lands to the wife for her Joyner or to his Children for their good or to pay debt is void for a third part by 32 H. 8. And if a man that hath three Acres of Land holden in capite by Knights service do make a Jointure to his wise of one and convey another to any of his children or to friends to take the profits to pay his debts or Legacies or daughters portions then the third Acre or any part therof he cannot give by Will but must suffer it to descend to the heir and that must satisfie Wardship Yet a man having three acres as before may convey all to his wife and children by conveyance in his life time as by Feoffment Fine Recovery Bargaine and Sale or Covenant to stand seised to Uses and to disinherit the Heire but if the Heire be within age when the Father dieth the King or other Lord shal have that Heire in VVard and shall have one of the three acres during the VVardship to sue Livery and primer Seisin But at full age the Heire shall have no part of it but it shall go according to the conveyance made by the Father It hath been debated how the Thirds shall be set forth for it is the use The King nor Lord can intermeddle if a full third part be left to descend to the heir Entailed lands part of the Thirds that all lands which the Father leaveth to descend to the Heire being Fee-simples or in taile must be part of the Thirds and if it be a full Third then the King nor Heire nor Land can intermeddle with the rest if it be not a full Third yet they must take it so much as it is and have a supply out of the rest This supply is thus to be taken if it be the Kings VVard then by a Commission out of the Court of VVards whereupon a Jury upon Oath may set downe so much as shall make up the Thirds except the Officers of the Court of VVards can otherwise agree with the parties if there be no VVardship due to the King then the other Lord is to have a supply by a Commission out of the Chancery and a Jury thereupon But in all the Cases these Statutes do give power to him that maketh the VVill The Statute giveth power to the Testator to set out the Thirds himselfe and if it be not a third part yet the King or Lord must take that in part and have a supply out of the rest to set forth and appoint of himselfe which lands shall go for the Thirds and neither King nor Lord can refuse it and if it be not enough yet they must take that in part and onely have a supply in manner as before is mentioned out of the rest A Feoffment made to the use of ones VVill if his VVill be declared before or at the time of his Feoffment it cannot be altered because it is executed otherwise it is if his Will be declared afterwards 20 H. 7. 11. vide fol. 27. b. What persons may make Leases at this day There be three kinds of persons at this day which may make Leases for three lives c. in such sort as hereafter is expressed which could not so do when Littleton wrote Any person seised of an Estate in Fee-simple in the right of his Church and any person seised of an Estate in Fee-taile in his owne right Any Husband and VVife seised of any Estate of Inheritance in Fee or in Fee-taile in the right of his wife or joyntly with his wife before the Coverture or after viz. The Tenant in taile by Deed to bind his Issues in taile but not the Reversion or Remainder The Bishop by Deed without the Deane and Chapiter to bind his Successors the husband and wife by Deed to bind the wife and her and their Heires and these are made good by the Statute of 32 H. 8. which enableth them thereunto but to the making
good of such Leases by the said Statute there are nine things necessary to be observed belonging to them all and some other to some of them in particular 1. The Lease must be made by Deed indented 2. He must be made to begin from the day of the making or from the making thereof 3. If there be an old Lease in being it must be surrendred or expired or ended within a year of the making of the Lease and the surrender must be absolute and not conditionall 4. There must not be a double Lease in being at one time As if a Lease for years be made according to the Statute he in the Reversion cannot expulse the Lessee and make a Lease for life or lives according to the Statute nor e converso for the words of the Statute be to make a Lease for three lives or one and twenty yeares so as the one or the other may be made and not both 5. It must not exceed three lives or one and twenty yeares from the making of it but it may be for a Lesser terme or fewer lives 6. It must be of Lands Tenements or Hereditaments maynorable or corporeall which are necessary to be letten and whereunto a Rent by Law may be reserved and not of things that lye in Grant as Advowsons Faires Markets Franchises and the like out whereof a Rent cannot be reserved 7. It must be of Lands or Tenements which have been most commonly letten by the space of twenty years next before the Lease made so as if it be letten for eleven yeares at one or severall times within those twenty yeares it is sufficient A Grant by Copy of Court Roll in fee for life or yeares is a good letting to farme within this Statute for he is but Tenant at will Secund. Cons Manerii And so it is of a Lease at will by the Common Law But those lettings to Farme must be made by some seised of an Estate of inheritance and not by a Guardian in Chivalry Tenant by Gurtesie Tenant in Dower or the like 8. That upon every such Lease there be reserved yearely during the said Lease due and payable to the Lessors their Heirs and Successors c. so much yearly Farme or Rent as hath been most accustomably yeilded and paid for the Land within twenty yeares before such Lease made Hereby first it appeareth that nothing can be demised by authority of this Act but that whereon a Rent may be lawfully reserved Secondly that where not only a yearly Rent was formerly reserved but things not annuall as Herriots or any Fine or other profit at or upon the death of the farmor yet if the yearly rent be reserved upon a Lease made by force of this Statute it sufficeth by the expresse words of the Act And if twenty acres of land have been accustomably letten and a Lease is made of these twenty and one acre which was not accustomably letten reserving the customably yearely rent and so much more as exceeds the value of the other acre this Lease is not warrantably letten and the rent issueth out of the whole If Tenant in taile let part of the land accustomably letten and reserve a rent pro rat or more this is good for that is in substance the accustomable Rent If two Coparceners be Tenant in taile of 20. acres every one of equall value and usually letten and they make partition so as each have ten acres they may make Leases of their severall parts each of them reserving the halfe of the accustomable rent If the usuall Rent had been payable at foure dayes or Feasts of the yeare yet if it be reserved yearly payable at one Feast it is sufficient for the words of the Statute be reserved yearely Ninthly nor to any Lease to be made without impeachment of Waste therefore if a Lease be made for life the Remainder for life c. this is not Warranted by the Statute because it is dispunishable for VVaste but if a Lease be made to one during three lives this is good for the Occupant if any happen shall be punished for VVaste the words of the Statute be seised in the right of his Church yet if a Bishop that is seised in jure Episcopatus A Deane of his sole possessions in jure Decanatus An Arch-deacon in jure Archidiaconatus A Prebendary and the life are within the Statute for every of them is generally seised in jure Ecclesiae All Grants Feoffments Leases and other Conveyances or Estates to any Master or Fellowes of a Colledge Deane and Chapiter Master or Guardian of an Hospitall Parson Vicar c. other then for one and twenty yeares or three lives from the time of such Lease or Grant reserving the accustomable yearely rent yearly payable shall be meerly void 18 Eliz cap. 11. All Leases made by such persons as 13 Eliz. cap. 10. before where another Lease for yeares is in being not to be expired surrendred or ended within three years next after the making of such new Lease shall be void All Bonds and Covenants for renewing or making of any Lease contrary hereunto or to 13 Eliz. cap. 10. before shall be void But a Parson and Vicar are excepted out of the Statute of 32 H. 8. and therefore if either of them make a Lease for three lives c. of lands usually letten reserving the usuall rent it must be also confirmed by the Patron and Ordinary because it is excepted out of 32 H. 8. and not restrained by the Statute of 1. or 13 Eliz. and what hath been said concerning a Lease for three lives doth hold for a Lease of one and twenty yeares Now to speak somewhat of the disabling Statutes of 1. and 13 Eliz. the words of the exception out of the restraint and disability of 1 Eliz. are Notes of things well and duty to be observed other then for the terme of one and twenty years or three lives from such time as any Grant or assurance shall be given whereupon the old and accustomed yearely rent or more shall be reserved And to that effect is the exception in the Statute of 13 Eliz. First it is to be understood that neither of these nor any other do in any sort alter or change the enabling Statute of 32 H. 8â— but leaveth it for a patterne in many things for Lease to be made for others Secondly it is to bee knowne that no lease made according to exceptation of 1 Eliz and 13. Eliz. and not warranted by the Statute of 32 H. 8. if it be made by a Bishop or any sole Corporation but it must be confirmed by the Deanes and Chapiters or others that have interest as hath been said in the case of the Parson and Vicar but examples do illustrate If a Bishop make a Lease for one and twenty yeares and all these yeares being spent saving three or more yet may the Bishop make a new Lease to another for one and twenty yeares to begin from the making
8. of Uses the terme of the Feoffee was saved Also in the same Court Anno 28 Eliz. in the case of Ized it was resolved that where the Lord enfeoffed the Copyholder to the use of others that the Copyhold Estate by the saving of the said Act was preserved Devises IT is a principle in Law A Lease to A. for life the remainder to the right heires of B. B. haveing a daughter dieth his wife privily with child of a Son in this case the daughter claimeth by purchase and therefore the son borne after shall never divest it Coke 1. pars fo 95. that in all gifts be they by devise or otherwise it behooveth to have a donee in esse which hath power and capacity to take the thing given at the very time when it ought to vest for if there be not any such in rerum natura when the thing ought to vest then the gift shall be void Plow fo 345. For if a man devise a Lease or goods to I. S. which dieth and then the devisor dieth the Executor of I. S. shall not have them And if a man seised of lands in Fee devisable make his will and thereby devise his lands to I. S. and his heires and then I. S. dieth and afterwards the devisor dieth I. S. and his heires nor any of them shall take nothing by this devise and here the thing ought not to vest in the devisee untill the death of the devisor at which time the devisee was dead and so was not in rerum natura And as to that heires are named in the gift that is to say it is given to the devisee and to his heires for which cause they shall be contemned and concluded in the intent that is not so for heires are not there taken to be immediately takers but onely to expresse the quantity of the estate that the devisee should have for without expressing heires the Devisor might not properly make an estate in Feesimple in the devisee and none other But if a man devise Lands to one and his heires and the devisor dieth in the life of the devisee and then the devisee dieth now the heire shall take by the devise Coke prima pars fo 95 If a man lease lands to a man for life Contingent remainder and if the Lessor die without heire of his body that then the Lessee shall have the land to him and his heires in this case if the Lessee for life dieth and then the lessor dieth without heires of his body the heire of the lessee shall not have the land and so clearely holden Plowden com fo 483. Quere de hoc It was agreed for good law that the occupation of a Chattel may be devised by way of remainder but if the thing it selfe were devised to use the remainder were void for the gift or devise of a Chattel for an howre is pro imperpetuum and the donee or devisee may give it sell it and dispose it and the remainder thereupon is void Brook devise fo 13. The occupation of a Chattel personall may be devised by way of remainder A Lease devised 20. yeares to one for the first ten yeares the remainder to another or devised to one for so many yeares as he shall live the remainder to another a delivery to the first devisee serveth for him in the remainder also So though it be but the occupation of a terme which is so devised for the occupation and profits of the Land is all one with land it selfe but if the occupation of a Booke glasse or other Chattel personall be devised to one for life and after his death to another in like sort there a delivery to the first is no delivery to the other for their occupations are severall and in such Chattles personall the occupation is distinct from the property 7 H. 6. 30. Plowden fo 522. A devise to one and his heires Males is an estate taile but a devise to I. S. in Fee upon condition that if he pay not I. D 10 l. then I. D. to have it in Fee is a void condition and remainder for it is contrary to the law 27 H. 8. 27. 29 H. 8. Dier 33. But a devise of the fee-simple to Alice S. and after her death to B. is onely an estate for life the remainder for life to B. the remainder to Alice in Fee so as the husband of Alice In a devise by what words Fee-simple passeth if she die in the life of B. cannot be Tenant by courtesie 19 Eliz. Dier 357. If a man devise lands to a man for ever or to give and to sell or in fee-simple or to him and his Assignes for ever Fee-simple passeth but if the devise bee to a man and his Assignes without saying for ever the Devisee hath but an estate for life if a man Devise lands to one sanguini suo that is Fee-simple but if it bee semini suo it is estate taile If a man Devise Lands upon condition A devise upon a condition repugnant is voide that the Devisee shall not Alien this condition is void and so it is of a Grant Release Confirmation or other conveyance whereby a Fee-simple doth passe And so it is if a man bee possest of a Lease for yeares or of a Horse or of any other Chattel reall or personall and give it or set it upon any such condition When a man deviseth that the Executors shall set the Land A devise that the Executors shall sell the Land there the Land descendeth in the meane time to the heire and untill the Sale be made the heir may enter and take the profits But when the land is devised to his Executor to be sold there the devise taketh away the discent A device of Land to the Executors to be by them sold and vesteth the state of the land in the Executors and they may enter and take the profits make sale according to the Devise and here it appeareth that when a man deviseth his Tenements to be sold by his Executors is all one as if he had devised his Tenements to his Executors to be sold And the reason is because he deviseth the Tenements whereby he makes the discent Although that the last Will shall avoid the former Will yet if a man be seised of lands in Fee No alteration of such a Will and therof enfeoffe a stranger and declare his Will upon the Livery of Seisin made to the stranger that is that the Feoffee shall bee seised to the use of the Feoffor for terme of his life the remainder to I. S. in Fee now he may not alter this Will by a latter Will in prejudice of ceste que use in remainder because the use is in him in remainder forthwith so that he may set it but if in the same case the remainder of the use had been to the right heires of the Feoffor then the Feoffor might alter
this use by his last Will and if the Feoffor had declared his Will upon the Livery of Seisin that the Feoffee should be seised to the use of I. F. for life the remainder to the use of the Feoffor or in taile the remainder to the use of a stranger in Fee in this case the Feoffor may not alter this Will by his last Will Perkins Testaments fo 93. and 92. Such a Wil may be altered If a man seised of Lands in Fee thereof enfeoffe a stranger to the intent to performe his Will and after the Feoffor maketh his Will and deviseth the same Land to a stranger in Fee in this case the Devisor may alter this Will by a latter Will because in this case the Devisee shall not have this Land but by force of the Testatment and that may not take effect till after the death of the Devisor And the same law it is of Lands Tenements Rents or Common c. devisable by the custome used in any place c. And also the same law is it of all Chattels reall and personall devised Perkins Testaments fo 93. A Feoffment to performe a Will When a Feoffement is made to a future use as to the performance of his last Will the Feoffees shall bee seised to the use of the Feoffor and his heires in the meane time 35 H. 6. 22. 15 H. 7. 12. 37 H 6. 36. 11. H. 4. 52. 7 H. 4. 22. 1 Mariae 111. Dier Of such Will there is no alteration A Feoffment made to the use of ones Will if his Will be declared before or at the time of his Feoffment it cannot bee altered because it is executed otherwise it is if his Will be declared afterwards 20 â— 7. 11. If a man devise his land to W. N. solvendum 10 l. to his Executors and die A man deviseth lands to his wife so long as she should continue sole and if she marry the remainder in taile the remainder to his right heire so that the marriage is the limitation which determineth the estate and so the remainder beginneth upon the estate ended there Coke 10. pars fo 41. the Devisee hath Feesimple by reason of the payment without words to his heires for ever And that shall bee intended the intent of the Devisor so if a man sell land to W. N for 20 l. that shall be intended a Sale in Fee-simple without words heires for conscience c. Brook estates fo 78. Termor deviseth to his wife the Land for so many yeares as she should live and afterward the terme to his son and made his wife Executrix and died the wife prooved the Testament and entred and agreed to the devise and afterwards shee aliened the terme and died the son or his Administrator may enter A man deviseth his Land to I. S. that shall bee taken but for terme for life but if he saith paying 100 l. to W. N. that shall bee intended Fee-simple and if hee doth not pay it in his life time yet if his heire or Executor pay it it sufficeth Quaere of his Assignee Brooke Testament 18. A Devise to a man and his heires hee hath issue a daughter and dieth his wife privily with Child of a Son the daughter entreth she shall retaine the land for ever and yet the son is heire but not to toll the land before vested in the daughter If Lessee for yeares devise his terme or other his goods or Chattels by Testament to one for terme of his life the remainder over to another and dieth and the Devisee entreth and doth not Alien the terme nor give nor sell the Chattel and die there hee in remainder shall have it but if the first devisee had aliened given or sold it he in remainder had beene remedilesse Brook Chattel 23. And so B. thinketh it if it be forfeited in his life he in remainder is without remedie If a terme be devised to one his heirs males of his body his heire shall not have it but his executor for a terme which is but a Chattel may not be entailed and such Devisee may well Alien the terme to whom please him Coke 10. pars fo 22. If a man devise Lands to one to have to him and his heires after the death of the Devisors wife the wife although she were not named before the Habendum shall have an estate for life by this Devise The husband possest of a terme in jure uxoris suae maketh a Lease of parcell rendant rent the wife shall have the residue of the terme but not the rent 9. Eliz. Dier fo 246. If a man devise his land to his wife for her life upon condition that if she marry that then the land shall remaine to I. S. in taile this is a good remainder for the construction of this devise is to make the same condition to be a lymitation and not any condition and upon a lymitation or determination of a particular estate which is certaine and not uncertaine a remainder clearly may well depend A man possessed of a terme of yeares in the right of his wife cannot devise it to another by his Will for she hath an estate in it before and at the time of his death which preventeth the Devisee nor can he grant charge out of it for she surviving is remitted to the terme and therefore shall avoide the charge But by by an expresse Act he might in his life time have given it away but if a woman having Chattels personall take a husband the law devesteth the property out of her and vesteth it in her husband only What Deeds of Gifts shall be counted fraudulent Fraud IF a man make a generall Deed of Gift of all his goods this is suspicious to bee done upon fraud to deceive the Creditors And if a man which is in debt make a Deed of gift of all his goods to protract the taking of them in execution for his debt this deed of gift is void as against those to whom he stood indebted But as against himselfe his owne Executor or Administrator or any man to whom afterwards he shall sell them or convey them it is good What is sale bona fide and what not By sale any man may convey his own goods to another although he may feare Execution for debts he may sell them out-right for money at any time before the Execution served so that there be no reservation of trust between them that providing the money he shall have the goods againe for that trust in such case doth prove plainely a fraud to prevent the Creditors from taking the goods in execution A Deed of gift of goods to defraud Creditors is voide against them but is good against him his Executors or ministrators Where Sale in a Market Overt shall Bar the owner and where not IF a man steale my Goods or Cartel Market Overt or take them from me in jest or borrow them of mee and
of the Indenture or from the day of the date or from the day of the making or from the day of the sealing and delivery such leases are meerly void for the date is excluded and the lessee may not enter untill the morrow for when a man makes a lease for life to commence at a day to come he may not make present livery to a future estate and therfore in such case nothing passeth and Livery or Attornment afterwards will never make a void Grant to be good Coke 5. pars fol. 94. 2. pars fol. 55. If a Lease be made for years or at Will by Deed and Livery and Seisin be made to the Lessee yet he is but Tenant for years or Tenant at Will according to the limitation of the Deed and not Tenant for life by force of the livery But if a lease be made for years the Remainder to a stranger for life and livery is made to the Lessee who enters this livery shall vest the Remainder in the stranger and if the Lessee enter by force of his lease before livery be made unto him then the Remainder is void Condition where an enâ—ry is reserved to a stranger vide casus tertium prox sequent A man enfeoffeth one upon condition that he shall pay ten pounds to B. and upon default that B. shall enter now if the rent be not paid the Feoffee may enter in Law and Conscience and not B. for he is a stranger to the Condition and B. hath no remedy in Conscience to have the land And when the Feoffment is made upon Condition although it doth not speak that for default of payment he may re-enter yet that is implied in the word Condition and as to the words that B. shall enter by default of payment they are void words Doctor Student fol. 93. Condition for non-payment of rent and then an Assise is brought or a Distress taken If a Condition be broken for non-payment of rent yet if the Feoffor bring an Assise for rent due at that time he shall never enter for the Condition broken because he affirmeth the rent to have continuance and whereby waiveth the condition and so it is if the rent had had a clause of Distresse annexed unto it if the Feoffor had distrained for the rent for non-payment whereof the condition was broken he should never enter for the condition broken but he may receive that rent and acquit the same and yet enter for the condition broken Acceptance of rent barreth a re-entry But if he accept a rent due at another day after he shall not enter for the condition broken because he thereby affirmeth the lease to have continuance Coke Lit. fol. 211. b. If a man enfeoff one by Indenture by which it is covenanted and agreed that the Feoffee shall pay to a stranger and his Heires ten pounds per annum at a certaine day and if he faile that the stranger and his Heires may enter in that case if the Feoffee doth not pay it the stranger shall have use of the land in conscience and not by the common law and shall have a Subpaena to constraine the Feoffee to make an estate unto him But in the said case if it had been upon condition that a stranger may enter for non-payment of the rent there the Feoffor himself shall enter and not the stranger for none may enter for a condition annexed to Fee but for lives and when the Feoffor hath entred he is not holden to convey the land to a stranger that ought to have the Rent Doctor Student 100. 101. In Mary Portingtons case Coke 10. pars fol. 39. Incidents to an estate taile It was observed and agreed for Law that to an Estate-taile there are three manner of incidents some by the common Law some by Act of Parliament and some by custome by the common law they are such which are not restrained by the Statute and may not be restrained by any condition 22 E. 3. 17. as Dower and Tenant by the curtesie after issue are incident to an Estate taile and may not be restrained by any condition An Estate taile cannot be restrained by any condition or limitation vide Coke 9. pars fol. 128. 6. pars Sir Anth. Mildmaies case Recovery fraudulent Also the Estate of him and Tenant in taile after possibility are dispunishable for Waste And collaterall Warranty is a bar to the Estate-taile and so is a common recovery also and none of these may be restrained by any condition or limitation by the Statute law as to make leases by the Statute of 32 H. 8. cap. 36. and to levie a Fine by the Statute 4 H. 7 cap. 24. and 33 H. 8. cap. 36. to bar Issues and none of those which are incidents to that Statute by act of Parliament may be restrained by condition for when a man maketh a Gift in taile he tacire doth give these incidents thereunto And therefore to restraine them by condition or limitation shall be repugnant And as to the case upon the Statute of 11 H. 7. it was answered that when the husband for advancement of the wife with competent Joynture and preferment of their Heires of their two bodies engendred hath caused an estate to be made to himself and to his wife in tail and after the deaths of the husband the wives to disinherit the issues of their former husbands suffer recoveries and convey the land to strangers of the bloud of the husband such recovery was worthy by the Parliament to be noted with the marke to be suffered by Covin And the act of the wife either when she is sole or with her and her second husband is so odious that a recovery had upon a good title against them by Covin is made void by the said Act. Fraud So in the said Acts of 32. H 8. and 14. Eliz. when a common recovery was had against Tenant for life to the prejudice of those who had the inheritance that may be well termed covenous and by collusion and yet in the same case when tenant for life the remainder to A. in taile the remainder to B. in taile c. with divers remainders over and Tenant for life suffereth a common recovery wherin he voucheth A. and he the common vouchee that shall bind all the other remainders for no Covin or collusion may bee supposed when the next in remainder in taile which hath the immediate inheritance is vouchee as it was adjudged in Jennings case Fraudulent conveyances to defraud purchasors Vide plus de hoc fo 18. 27 E. cap. 4. every Conveyance Grant Charge Lease Estate incumbrance and limitation of use of Lands Tenements or Hereditaments made since the beginning of her Majesties Raigne or hereafter to be made for the defrauding of Purchasors of the Land it selfe or any part or profit out of it shall be void against the person so purchasing for money or other good consideration and against all
said to be a rent may in any wise be reserved to a stranger which is not privie to the Lease or Deed. Also nothing which goeth in privity as conditions entries or re-entries for conditions or such like which are given by the law to privies onely may not be limited or granted to others which are strangers by the common Law and therefore if a Lease bee made for yeares rendant rent and upon condition of non payment that it shall remaine to a stranger and livery and seisin is made accordingly that is a void a remainder which commenceth upon a repugnancy precedent and which dependeth upon a condition which goeth in destruction of the perticular estate and especially where such a remainder is created by lease or grant Vpon and by the limitation of a devise or limitation of an use a remainder may commence upon a condition that goeth to the destruction of the perticular estate But by limitation of a devise or limitation of use such a remainder is good as a Feoffement made to the use of I. S. for yeares and upon non payment by him of such a summe that it shall remaine to I. D. for life c. this is a good remainder so it is where the remainder is created by the limitation of a last Will. As if a man devise his land to his wife for her life upon condition that if she marry that the Land shall remaine to F. M. in taile that is a good remainder for the construction of this devise is to make the same condition to be a limitation and not any condition And upon a limitation or determination of a perticular estate which is certaine or not uncertaine a remainder clearely may well depend As if a Lease be made for life upon condition that if the Lessee die it shall remaine to a stranger that is a good remainder A remainâ— by a limitation of an use may commence or depend upon any condition and one feesimple may depend upon another by way of use Where one hath an Office of charge as to be Steward Officers Stewards Bayliffs c. Bayliffe Parker c. the grantor may out them and pay their Fee if the Fee bee only certaine but not where they have profits of Court 34 H. 8. titulo 243 Kitchin fo 143 a. Stewardship Parker It was agreed that the Owner of Parke may dispark the Park notwithstanding a grant of the said Office the Office of Steward was granted to one for life with a Fee of forty shillings for the execution thereof if the Lord discharge him yet hee shall have the Fee But if the grant be to him to be taken out of the issues and profits of the Court the Lord may not discharge him 1 S. E. 4. 8. And if a Parker for life which hath a Fee for the exercising of the Office is discharged of his Office yet he shall have the Fee for it is but an Office of charge but if the Parker hath the Office for life and hath Windfalls Deer-skins and such like he may not be expulsed from his Office and of such Office hee may have an Affize Brook 134. 38 H. 8. whereby I conceive that where the Steward hath a cetaine Fee for execution of his Office yet if he hath other profit incident to his Office as Fees for entries of Plaints making of grants by Copie taking of surrenders and admittances of Copy tenants and such like the Lord cannot remove the Steward Officers that have no other profits but a Collaterall certaine fee there the grantor may discharge him As to be a Bayliffe Receivor Surveior Auditor or the like the exercise whereof is but labour and charge to him but hee must have his Fee for the maine rule of the Law is that no man can frustrate or derogate from his owne grant to the prejuice of the Grantee And where albeit the Grantee hath no other profit but his Fee yet that fee is to be taken out of the profits appertaining to the Lord within his Office for there the grantor cannot discharge him of his service or attendance for that may turne to the prejudice of the grantee if the Grantor will not grant the Office at all but in all cases where the Officer relinquisheth his Office and refuseth to attend he loseth his Office Fee profits and all There are three causes of the forfeiture of an Office as the Office of a Steward Parker Wood-ward and such like viz. Abuser non-user and refuser vide Coke 8 pars the County of Rutlands Case fo 55. 9 pars County of Salops Case fo 49. for in all cases when an Officer upon request doth refuse to execute his Office that is a forfeiture as if the Steward of a Mannor upon the Lords request to hold a Court refuse to do it this is a forfeiture There is another diversity where the Grantee besides his certaine Fee hath profits and availes besides his Office there the Grantor cannot discharge him of his service or attendance as if a man doth grant to another the Office of the steward-ship of his Court or of his Mannors with a certaine fee the Grantor cannot discharge him of his Office service or attendance because he hath other profits and fees belonging to his Office Parker If a Parker kill any deere without warrant or cut any Trees Woods or Vnder-woods and convert them to his owne use it is a forfeitute of his Office Parker for life may not assigne his Office to another because it is an Office of trust but otherwise it is if hee bee Parker in Fee Plow fo 379. and so for a Steward as I conceive without words in the Patent to make a deputy There is a condition in Law annexed to every Office of trust as to the Office of Steward or Parker and such like viz. that the Parker shall keep well the game and shall do all things pertaining to the Office of Parker and so for steward c. A parker kept not his Parke such a day by reason whereof the Deere were killed by unknowne persons this is a forfeiture of his Office A Parker is not holden to keep his Parke in Festivall dayes for he ought to be at divine service nor in the night nor to keep the Parke with 6 or 8. men vide 2 H. 7. 8. that in Assize of Office it was said by the reporter and not denied that if the Office of Parker be granted if he doth not keep the Parke or if he destroy the Deer that is a forfeiture of his Office if a Forrester or Parker cut or fall Woods unlesse it be for necessary bruse for the Deere this is a forfeiture of their Offices for the destruction of vert is the destruction of venison If a man hath a lease for yeares Grants in toto and grants to another all his tearme that shall bee to come at the time of his death that grant is void because he would retaine the terme
be charged with this Covenant for although the rent reserved was increased in respect of the stock or the summe yet the rent doth not issue out of the stock or summe but out of the land onely and therefore as to the stock or summe the Covenant is personall and shall bind the Covenantor his Executors and Administrators and not his Assignee for it may be wasted or otherwise consumed or perished by the Lessee and therefore the Law cannot determine at the time of the Lease made that such Covenant shall bind the Assignee If a man demise or grant land to a woman for years and the Lessor covenanteth with the Lessee to repaire the houses during the terme the wife taketh a husband and dieth the husband shall have an action of Covenant as well upon the Covenant in Law upon these words Demise or Grant as upon the expresse Covenant But it was resolved by Wray chief Justice and all the Court that this word Concessi or Demisi in case of Frank-tenement or inheritance doth not import any Warranty see the Statute of 32 H. 8. cap. 24. what act was resolved to extend to Covenants which touch or concern the thing demised and not to collaterall Covenants Demise Grant Dier Upon these words Demise grant in Leases for years or lives 9 Eliz. 257. the Lessee and his Assignes shall have a Writ of Covenant alwaies provided there be no speciall Covenant following after in such Leases for then this generall Covenant is qualified and the former word Demise Grant shall loose his operation Coke 4 pars Nokes case And if a man be bound in an Obligation to perform all Covenants Grants Articles and agreements c. in such Indenture now the Lessee or his Assignes upon eviction may bring an Action upon the Obligation by reason of the Covenant in Law which is broken viz. Demise Grant Co. 4. pars Assignment of Estate If Lessee assigne over his terme the Lessor may charge the Lessee or his Assignee at his election but if the Lessor accepteth rent of the Assignee he hath determined his election and shall not have an action against the Lessee afterward for rent due after the assignment no more then if the Lord once accept the rent of the Feoffee he shall not avow upon the Feoffor Co. 3. pars Walkers case Proviso that the Lessee or his Assignes shall not alien to any person without license of the Lessor afterward the Lessor gives license to alien or demise the land or any part thereof the Lessor doth alien accordingly this one license hath determined the Condition so that no alienation to be made afterwards can break the Proviso be it done by the Lessee himself or his Assignes so that a dispensation with one alienation is a dispensation of all other 4 pars â—ol 119. A Lease was made to three upon Condition that they or any of them should not alter without the assent of the Lessor after one aliened with his assent then the other two aliened without license the Condition being determined to one by license of the Lessor was determined in all and so adjudged And the case in Dyer fol. 334. was denied for Law 4. pars fol. 119. Note that a Condition may not be apportioned or divided by the acts of the parties 4 pars fol. 119. Recovery Recovery against Baron and Feme by Writ of entry in the Post where the wife is Tenant in taile and they vouch over and so the demandant recovereth against Baron and Feme and they over in value that shall bind the Taile and the Heire of the Wife This assurance was made by the advice of Brudnell and other Justices Quere de hoc Where a Writ of entry in the Post is brought against Tenant for life to bind the Feoffees he ought to pray aid of him in reversion and then they to vouch upon the joynder c. and such a recovery with voucher is used to dock the taile in ancient Demaine upon a Writ of Right and Voucher ever If an Obligation of 100 l. be made with condition for payment of 50 l. at a day Tender and at the day the Obligor tenders the money and the Obligee refuseth the same yet upon an action of debt upon the Obligation if the Defendant plead the tender and refusall he must also plead that he is yet ready to pay the money and tender the same in Court but if the Plaintiff will not then receive it but take issue upon the tender and the same be found against him he hath lost the money for ever If a man be bound in two hundred quarters for delivery of a hundred quarters if the Obligor tender at the day the hundred quarters he shall not plead Uncorprist because albeit it be parcell of the Condition yet they be bona peritura and it is a charge for the Obligor to keep them and the reason wherefore in the case of the Obligation the summe mentioned in the Condition is not lost by the tender and refusall is not onely for that it is a duty and parcell of the Obligation and therefore is not lost by the tender and refusall but also for that the Obligee hath remedy by Law for the same But if a man make a single Bond or knowledge a Statute or Recognizance and afterward make a Defeasance for the payment of a lesser summe at the day and the Obligee or Cognisee refuse it he shall never have any remedy by Law to recover it because it is not parcell of the summe contained in the Obligation Statute or Recognizance And in this case in pleading of the tender and refusall the party shall not be driven to plead uncorprist or to tender it in Court. Neither hath the Obligee or Cognusee any remedy by Law to recover the same summe contained in the Defeazance And so it is if a man make an Obligation of a hundred pounds with condition for delivery of Corne or Timber c. or for the performance of an Arbitrement or the doing of an act that is collaterall to the Obligation that is to say is not parcell of it and therefore a tender and refusall is a perpetuall Bar. Tender upon a Mortgage If the Condition upon a Mortgage be to pay to the Mortgagee or his Heirs the money c and before the day of payment the Mortgagee dye the Feoffor may not pay the money to the Executors of the Mortgagee for in this case the money ought to be paid to the Heire Et in hoc casu designatio unius personae est exclusio alterius expressum facit cessare tacitum And the Law will never seek out a person when the parties themselves have appointed one vide Coke 5. pars 96. Goodales case Dyeâ— 2 Eliz. fol. 181. But if the Condition be to pay the money to the Feoffor his Heires or Executors then the Feoffee hath election to pay it either to the Heire or Executors Payment on a
Emblements who shall have them sowe Hemp or Flax or any other annuall profit if after the same be planted the Lessor out the Lessee or if the Lessee dieth yet he or his executors shall have the yeares Crop and this rule holdeth to every particular tenant that hath an estate in certaine for if tenant for life soweth the ground and dieth his executors shall have the corne sowne for that his estate was uncertaine and determined by the act of God And the same law is of Lessee for yeares of tenant for life if a man be seised of land in the right of his wife and sewe the ground he dieth his executors shall have the corne for that his estate was uncertaine and if his wife die before him he shall have the corne If a man seised of lands in Fee hath issue a daughter and dieth his wife with child of a son the daughter soweth the ground the son is borne yet the daughter shall have the corne because her estate was lawfull and defeated by the Act of God and it is good for the Common-wealth that the ground be sowen But if the Lessee at will sow ground with corne c. and after he himselfe determineth his will and refuseth to occupie the ground in that case the Lessor shall have the corne because he loseth his rent and if a woman that holdeth land durante viduitate soweth the ground and taketh a husband the lessor shall have the Emblements because the determination of her owne estate grew by her own act But where the estate of the Lessee being incertain is defeasible by a right Paramoūt 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 entereth for any forfeiture c. shal have the corn New Lit. fo 55. titulo tenant at wil. Olands case 5. pars Coke fo 116. vel 126 If a feme seised of land durante viduitate make a Lease for yeares and the Lessee sow the lands and after the wife that made the lease take a husband the Lessee shal not have the Emblements for though his estate determin by the act of a strāger yet he shal not be as to the first lessor in better estate then his lessor was Uses Uses Note That it is not good to make such a limitation generally without any restraint because it maketh all estates with the remainders over to be in contingency To the use of Leonard Lovey for life and after his decease to the use of such farmors or tenants to whom he shall demise any part of the premises for or during life or lives and for any terme of yeares as in any such demise or demises shall be limitted and appointed and then to the use and performance of the last Will and Testament of the said L. Lovey and to the use of such person and persons severally to whom the said L. Lovey by his last Will shall devise any estate or estates of or in the said Mannors lastly mentioned or of any part of them according to the true intent and meaning of his said last Will. And after the performance of his said last Will to the use of c. and for some other Mannors he devised them to Tho. Lovey his son and to the heires males of his body lawfully begotten from and after the decease of the said L. Lovey the father for 500. years then next ensuing fully to be compleated and ended upon condition that his said sonne shall allow of all such estates grants and conveyances thereof already made or at any time to be made by the said L. Lovey of and in the said Mannors Messuages c. and other the premises by him by that his last Will given granted and bequeathed according to the purport true meaning and effect of the said Lease Leases so made or to be made with power of revocation It was resolued that all the remainders were in possibility contingency but yet that the uses and powers in contingency may by mutuall assent of the parties be revoked and determined for as they may be raised by Indenturer so by Proviso or limitation annexed to them in the same Indenture they may be destroyed either before or after their essence And where it is incertaine and doubtfull whether the use or estate limited in futuro shall ever vest in estate or interest or not If a man give lands to a man such a woman as shall bee his wife the man taketh the entire But if a man make a Feoffment in Fee to the use of himselfe and his wife which shall he and he after takes a Wife his wife shall take joyntly with him Coke 1. pars fo 101. there the use or estate is in contingency But yet these contingent estates where power of revocation is may be revoked 10. pars fo 78 Leonard Loveyes case If a man at this day make a Feoffment in fee to the use of A. for yeares and after to the use of the right heires of B. or to the use of the wife of B. which shall be this limitation to the right heires of B. or to the wife of B. which shall be is void because it had beene void if it had been limited in possession Francis Earle of Bedford made a feoffment in Fee of diverse Mannors to the use of himselfe for yeares and then to the use of Jo. L. Russell his son and heire and to the heires Males of his body engendered and for default of such issue to the use of the right heires of the said Earle and after the said Jo. L. Russell died without issue male in the life of the said Earle and it was resolved that the use and estate limited by way of remainder to the right heires of the Earle were void for it had been void if it had been limitted by estate executed at the common law for the remainder ought to vest during the particular estate prima pars fo 130. Chudleis case A Fine was levied to the use of A. and the heires males of his body untill he or the heires males of his body hath done such a thing and after such a thing done to the use of another in taile and dieth without issue without any thing done and it was adjudged the remainder was in contingency ne unques eschie Note that every use in esse that is to say in possession reversion or remainder is executed by the Statute and that no contingent use or right of a use shall be executed within this Statute of 27 H. 8. untill they come in esse 1. a pars fo 126. Chudleis case Disjunctive and copulative A Lease for yeares yeilding yearly to the Lessor or his heires forty shillings this reservation in the disjunctive is good See the book at large the reason Mallories Case 5. pars fo And there If a feoffment be made to A. to have to him or his heirs
tenants of the Frank-tenement but such limitation after the Statute is void for then the Frank-tenement shall be in suspence for nothing may remaine in the Feoffees But hee said that those remainders in futuro were divested and destroyed by the Feoffment of Tenant for life and although the remainders are in custody of the Law yet they ought to be subject to the rules of the law for the law will never preserve any thing against the rule of the Law and because that the rule of the law is that he in remainder ought to take the Land when the particular estate determineth or otherwise the remainder shall be void and in this case forsomuch as by the feoffment of tenant for life their estate was determined and title of entry given for the forfeiture then those in the future remainder were not in esse to take it for this cause these remainders in futuro by this matter ex post facto were all utterly destroyed made void And no diversity when the estate of tenant for life determineth by the death of tenant of life and when it determineth in right by his forfeiture for in both cases entry is given to him in the next remainder and then if he may not take the Land when the particular estate determineth the remainders void A gift in taile was made to A. C. the remainder to the right heirs of A. S. the Donee made a Feoffment to B. in fee and after A. S. dieth his right heire shall never have the remainder nor any Charter that concerneth it for the estate of the Land was by the feoffment of S. in taile divested and discontinued and all estates vested in the Feoffee and there was not any particular estate either in esse nor in right to support the remainder when that shall fall for by the Feoffment of S. in taile his right heire was utterly gone But if tenant in taile were deceased and dieth that shall not toll the remainder for there is a right of particular estate to support the right of the remainder but when tenant in taile made a feoffment no right remained in him and so note that there ought to be a person in esse of both parties viz. that shall be seised to use and that shall take the use so that there needeth not onely to have a use limited but a person capable of the use when this Statute transferreth the possession thereunto and therefore if a person wanteth it is impossible to have the possession executed by this Statute to one which is not in rerum natura for the Statute saith c. If by a Feoffment to uses the estate shall be utterly out of the Feoffees and all vest in them which have the present uses then the future use shall never rise for it is impossible that it should be raised out of the possession of ceste que use for a use may not be raised out of a use for if A. enfeoffe B. in fee to the use of C and his heires with proviso that if D. pay to C. 100 l. that C. and his heires shall stand seised to the use of D. and his heires that is utterly void for the future use ought to be raised out of the estate of the Feoffee and not out of the estate of ceste que use And it was holden that the Feoffees after the Statute had possibility to serve the future use when it cometh in esse and that in the mean time all the uses in esse shall be vested and when the future use commeth in esse then the Feoffees if the possession be not disturbed by disseisin or other meanes shall have sufficient estate and seisin to serve the future use when that shall come in esse to be executed by force of the Statute and that seisin and execution ought to concurr and meet together at one selfe same time and in such case when the future use commeth in esse the Feoffees shall have by force of the act a qualified estate sufficient to serve the future use All the Justices and Barons of the Chequer but Periam Walmsley Gawdy concluded c. that forasmuch as the Statute of 27. H. 8. doth not extend but to uses in esse and to persons in esse and not to any uses that depend in possibility onely for this cause these contingent uses in the case at barr remaine so long as they depend in possibility onely at the common Law and by consequence they may be destroyed or discontinued before they come in esse and by all such meanes as Uses might have beene discontinued or destroyed by the common law And all the Justices and Barons of the Chequer agreed with the chiefe Baron and VValmsley in this point that these remainders limited in use in the case at the barr shall follow the rule and reason of estates executed in possession by the common law and therefore they al only agreed that if the estate for life in the case at the barr had been determined by the death of the Feoffees before the birth of the eldest son that the said remainders in futuro were void and never shall take effect although that the son were borne afterwards for a remainder in use ought to vest either during the particular estate or eo instante when the particular estate endeth as well as estates in possession All these cases last before touching contingent uses see Coke prima pars fo 120. Chudleis case unto the end of the said case If a future use come not in esse during the particular estate then it shall never take effect because it is in nature of a remainder which ought to take effect and vest during the particular estate and no use shall be executed by 27 H. 8. which are limited against the rule of the common law A use is in nature of a remainder and therefore in the raising of uses the order and rule of the common law touching remainders in all things must be observed but upon and by the limitation of a devise or limitation of a use a remainder may commence upon a condition which goeth to the destruction of the particular estate and one fee-simple may depend upon another If a man at this day make a feoffement in Fee to the use of A. for yeares and after to the use of the wife of B. which shall be this limitation to the right heirs to the wife is void because if it had been void it had been limited in possession So in the same case if the use be limited to A. for life and after to the use of the right heires of B. or to the wife of B. which shall be if A. dieth and then B. dieth or taketh a wife this remainder limited to the right heires or to the wife of B. is void for it were void if it had been limited in possession And 72 H. 8. intended to restore the good and the ancient common law and not to give more priviledge
to the Execution of uses then to estates which are executed by the ancient common law vide fo 51. In proofe whereof it was resolved by all the Justices of England Pasch 35. Eliz. in the Earle of Bedfords case which was such Francis Earle of Bedford made a Feoffment in fee of diverse Mannors to the use of himselfe for years after to the use of Jo. L. Russel his son and heir apparent and the heires males of his body begotten and for default of such issue to the right heires of the said Earle and afterward the said Jo. L Russel died without issue male in the life of the said Earle and it was resolved that the use and the estate limited by way of remainder ought to vest during the particular estate prima pars Co. fo 129. 130. If a man make a feoffment in fee to the use of himselfe for life and after to the use of his first Son to be begotten in taile and tenant for life dies or makes a feoffment in fee before the birth of his son the remainder is destroyed for ever and so in this case if tenant for life die his wife privily with child and then a son is borne that issue shall not have the use ut opinor A Lease to A. for life the remainder to the right heires of B. B. having a daughter dieth his wife being privily enceint with a Son the daughter claimeth that by purchase and therefore the son born afterwards shall never divest it Coke 1. pars fo 95. Shellies case Forfeiture De pace regis regni tit forfeiture fo 222. THe King shall have all the goods of Felons which be condemned What goods of Felons the King shall have and which be fugitive viz. all their goods moveable and unmoveable for the King shall have the corne growing upon the land of the felon attainted and the issues and profits of the Land which he hath in his owne right or in the right of his wife during the time of his life Forfeitureâ—… upon flying or untill he doth purchase his pardon But touching the profits of fugitives lands there is a difference between a flying presented before a Coroner and a flying found by verdict upon an acquittall for upon a flying presented before the Coroner he shall forfeit the profits of his lands untill his death or untill he be acquit or untill he hath purchased the Kings pardon But upon a flying found by verdict upon acquittall he shall forfeit no issues of his Lands for by his acquittal the Land is discharged and consequently the issues thereof The law hath restrained offendors in treason and Felony to certaine times to make alienation of their Lands and goods and hath prefixed limits From what time forfeiture of lands shall have relation whereunto the forfeiture of their said lands and goods shall have relation and yet with this difference that as soone as any treason or Felony is committed the offender therin is restrained to make any alienation of his lands for then it is not his land but by the committing of the treason or felony he hath forfeited all the estate he had therin and therfore if between the time of the committing of the treason or felony of the offenders attainder thereof the offender doth make an alienation or assurance of his land after the time that the offender shall be attainted of the same treason or Felony the said assurance shall be void whether the same attainder be by verdict confession or utlary for the forfeiture of the land shall have relation from the time of the offence committed From what time the forfeiture of goods shall have relation The forfeiture of Goods and Chattels shall not look back so far as forfeiture of lands nor shall have relation from the time of the treason or felony committed but from the time of the attainder of the treason or Felony and therfore if one do commit treason or felony and in the meane time between the treason or felony committed and the offendors attainder therof the offendor doth give away his goods this is a good gift for as yet they be not forfeit but be his owne to maintain himselfe his family untill he be attainted and by the law adjudged unworthy to possesse or enjoy goods or to have sustenance and therefore if upon a fugam fecit presented before the Coroner one doth forfeit his goods he shall not forfeit those goods he had at the time of the felony committed but shall only forfeit those goods which he had at that day when the fugam fecit was presented against him and in like sort if one that is indicted of Felony be acquitted thereof by verdict and in their verdict the Jury finde that the Prisoner fled for the felony in this case the Prisoner shall forfeit those goods which hee had the day of the verdict given and not any goods which hee had before And so it is if one be convict by verdict the goods shall bee forfeited which the offender had the day of the verdict given and not those he had before and he that is outlawed of treason or felony shall forfeit those goods which he hath at the time of the Exigent awarded and not those which he had before and hath aliened But if a man commit treason or felony and is arrested therof and as he is carrying to a Justice to be examined or to the Goale by the Constables or others doe break away or in making of rescous or resistance is slaine by those which doe so carry him because he will not yield and be justified by the law in this case those goods shall be forfeited which he had at the time of the felony committed and so it is if one commit a felony and when the Sheriff Coroner Constable or others do attempt to apprehend him he is slaine because he doth resist and will not yeild to be arrested the goods shall be forfeited which he hath at the time of the felony committed Note this difference is to be observed in the seising of a Felons goods for where the goods be forfeited before the felony tryed as where one is found guilty before the Coroner of the death of another or where it is found before the Coroner that one did fly for a felony in such case the goods shall be presently seised upon the forfeiture of them though there be no conviction of the felon and upon such forfeiture the goods be presently the Kings the felon is to have no maintenance out of them Daltons office of Sheriffs tit forfeiture fo 32. And yet lest the goods should be disorderly wasted imbesseled or sold away the Sheriffe c. before the attainder of the felon may take surety that the goods be not imbesseled c. ss may cause the owner or some of his friends to finde surety and for want of sureties the Sheriffe c. may seise them and deliver them to the towne ss
cap. 18. and 33. H. 8. cap. 39. Debitor of the King possessed of a Lease selleth it bona fide This bindeth the King for it is but a Chattel Co. 8. 172. Note that the King shall levie the summe for which any is chargeable unto him not only against the party himselfe scil of his body his lands and goods in his own hands but in the hands of his Heires Assignes Executors or Administrators and if he hath no Executors or Administrators then in the hands of the possessors of the goods of the dead What Lands and goods shall be extended or taken by the Sheriff in Execution upon Statute c. in case of a common person NOte that upon Statute Merchant or Staple all the Fee-simple Lands which the said Connusor had at the time of the said Statute acknowledged or at any time after shall be liable to the said Statute into whose hands they shal ever come afterwards by alienation Feoffement or otherwise Stat. de mercator 13 E. 1. 27 E. 3. cap. 9. 23 H. 8. Co. 3. 12. But if the Debitor die the body of his heire shall not be taken but his Fee simple lands which descendeth to him from the Connusor shall be taken in form aforesaid if he be of full age or when he commeth to full age untill the debt be levied Statut. de mercator And so was the common Law before that in debt against the heir the Plaintiff shall have all the Land which discendeth to the heir in execution and yet he shall not have then execution of any part of the land against the father himselfe Note that it hath been holden that the heir shall not be charged where the Executors have assets Fitz. Executors 25. Br. Debt 237. 17 E. 4. 13. Plow 439. 440. But at this day the law seemeth otherwise scil that it is at the election of the Creditor to sue the heir or Executors when both have assets 4 E. 4. 25. 22 H. 6. 4. 10 H. 7. 8. Doct. Stud. 153. Dier 204. Plowden 439. 440. Also it seemeth that if the heire doth not confesse the action and shew the certainty of the assets which he hath by discent but plead nothing by discent or is condemned by default that there the Plaintiff shall have execution of his other lands or of his goods or of his body by cap. ad satisfac Plow 440. Note that Fee-simple lands of the heire which he hath by discent the day of the Writ purchased or after shall be liable but otherwise if he hath aliened before the Writ purchased unlesse it be by covin Co. 5. 60. Possession in law discendeth upon the heir shall charge him So where he enters upon a condition Br. assetts 8. Reversion upon an estate for life discends upon the heire that shall charge him Br. Assets 12. 19. A reversion shall be put in execution and the judgment shall be cum acciderit and in the meane time of the rent Di. 373. Fitz. Assetts 237. Note in debt a man shall have execution of no land but of that which the Defendant hath the day of the judgement given 2. H. 4. Fitz. Executors 24. If a man sue a Statute Merchant of parcell of the Lands in name of all the Lands he shall not have other execution afterwards Fitz. Execution 13. 4. If I have but one Acre by discent I shall be charged with 1000 l. by obligation made by my father by Belk 40 E. 15. Fitz. Execution 32 vide quaere For it seemeth that the heire may confesse what he hath by dscent and demand judgement whether of more then of the value therof he ought to be charged Lands intailed are liable but during the life of the Connusor as if tenant in taile be bound in a Satute or Recognizance the land taile shall be bound during his life but it is not bound against the issue in taile Br. Recog 7. yet if the issue in taile enfeoffe a stranger now execution shall be against the Feoffee 19 E. 3. Fitz receipt 112. But if Tenant in taile acknowledge a Statute or Recognizance and after alien the lands in the hands of the Feoffee or alienee shall be subvert to this Statute or Recognizance Co. 1. 62. and 2. 52. 8 H. 7. 89. Copy hold Lands are not liable nor shall bee extended upon a Statute or Recognizance Lease or Terme for life shall be extended Lease for tearme of yeares and all other goods and Chattels of the Connusor or Debitor are liable and shall be extended ss such which the Connusor c. hath in his owne possession and to his own use at the time of the execution sued or awarded But sale of Chattels bona-fide after judgement and before execution awarded is good but not after execution awarded as appeareth in 2 H. 4. fo 14. per curiam Yet by Babington 7 H. 6. Br. execution 116. if a man be condemned in debt or bound in a Statute the goods which he hath the day of the judgment or knowledge of the Recognisance shall be bound to the execution in whose hands soever they shall come quod non fuit negatum Co. 7. 39. a every execution in judgement of law hath relation and retrospect to the judgment But a fraudulent conveyance or gift of Lands or goods shall not advoid any execution vide le statutes 50 E. 3. ca. 6. 1 R. 2. ca. 9. 2 R. 2. Stat. 2. ca. 3. 3 H. 7. ca. 4. 13 Eliz. ca. 5. 7 les liures 43 E. 3. fol. 3. Dier 295. Co. 3. 81. 82. 83. Lands in ancient demesne are liable to the Statute vide Fitz. Execution 118. and retorne 109. contra Lands or goods holden joyntly by the Connusor with a stranger and the connusor is condemned in damages and dieth before execution those lands or goods comming to the stranger by survivor are not extendable Br. execution 126. 148. 13 H. 7. 22. a. Lands of a wife are extendable during the coverture by debt of the husband 15 H. 7. fo 14. Rent may be delivered in execution Fitz. avowry 237 Exec. 63. Rent extent by release of the party may be extended Co. 7. â—8 39. As if a man hath judgement to recover debt or damages by that the rent which he hath of any estate of Frank-tenement is liable to it and therefore although that after judgment that be released yet that may be extended But a man shall never have a thing extended upon an execution except that he may grant and assigne the same thing by Shelly 28 H. 8. fo 7. So the profits of an Office or other thing which may not be granted or assigned over shall not be extended Dier fo 7. Goods demised pawned or pledged may not be taken in execution for his debt that demised or pawned them during or terme that they are sâ— demised or pawned 22 E. 4. fo 10. 34 H. 8 Br. pledges 28. As as if a man bona fide lease his Sheep or Oxen for years or if he