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A05165 The case of tenures upon the commission of defective titles argued by all the iudges of Ireland, with their resolution, and the reasons of their resolution. Santry, James Barry, Baron, 1603-1672. 1637 (1637) STC 1530; ESTC S106989 30,816 68

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the whole grant both for the land and tenure was the point wherein they did differ 4. And for the clearing of that they did enquire what the reservation of a tenure is to the grant Whither it be a part of the grant And Modus Concessionis or vvhither it be a distinct thing and Aliud from the grant as this Case is For if as they that argued for the Letters Patents held the reservation of the tenure and the grant of the land bee Aliud Aliud two distinct things in the Consideration of the vvhole grant made and the authoritie given by the said Commission for the making thereof then peradventure the patent may be voyde as to the tenure and yet good for the grant of the land But if the reservation of the tenure be incident unto the authoritie and included vvithin it and the reservation of the tenure and the grant of the land make up but one entire grant so that the one is a part of the other and the Reservation of the tenure bee Modus Concessionis Then the granting of the land reserving a diverse or contrary tenure to that vvhich their Authority did warrant them to reserve is a doing of Idem alio modo And so the whole act is voyde They held that the Reservation of the tenure is Modus Concessionis and that it is not Aliud S. a thing distinct and separate from the authority of the grant of the land but implyedly included within it and incident to it Although a grant may be vvithout Habendum expresse Tenendum Reddendum or Condition yet when they or any of them are added they are de modo Concessionis and doe direct and rule the grant 1. For the Habendum The proper office of the Habendum is to limit the estate yet sometimes it may 1. Alter the estate in the premises 2. Diminish or enlarge 3. Give to a stranger 4. Make the grant voyde 1. It may alter the estate in the premises As where land is given to two in the premises Habendum the one moytie to the one and the other moytie to the other by the premises they have a joynt estate the Habendum makes them tenants in Common Litt. 66. So where land is given to two Habendum to the one for life the remainder to the other By the premises they should have a joynt estate in possession But the Habendum doth alter that and maketh the one sole tenant of the freehold for life and the other sole tenant of the Remainder 8. E. 3. 320. feoffments faits 73. 2. It enlarges or diminishes the estate that would passe by implication in the premises and so destroyes the implication This is common in every grant 3. It gives to a stranger not named in the premises of the grant As if a man gives lands to I.S. Habendum with A. his daughter in Frank-marriage there the wife not named in the premises by the Habendum takes a joynt estate with her husband this Case is vouched in Pl. Com. 158. to be in 4. E. 3. which being not found in that yeare it is there so left without any further reference but you shall finde it in 5. E. 17. so Cokes Instit sect 17. yet vid. 4. E. 3. 4. So likevvise where a lease is made to A. Habendum for twentie yeares the Remainder to B. and his heires here B. gaineth an immediate freehold by the Habendum and yet he is not named in the premises of the deede Plowd Com. 158. 4. It will make the grant voyde As if I have a Rent in Fee and I grant it to another if I stay there the grant shall be for life But if I say further Habendum after the death of I.S. there all shall be voyde Plowd Com. 152. 156. So if the King grants lands by letters patents Habendum from a day to come there the whole grant is made voyd by the Habendum 5. Coke 93. Barwicks Case He in the Reversion for life grants his estate Habendum after Michaelmas and after Michaelmas the tenant atturnes yet Resolved that the grant is voyde though if there had beene no Habendum it had beene good by the premises of the deed Bucklers Case 2. Coke 55. In all these Cases the Habendum being voyde makes voyde the grants which would have beene good without it As the Habendum hath these severall operations in the grant so hath 2. the Reddendum As an estate by implication shall be controlled by an expresse limitation so an implyed Reservation shall be controlled by an expresse Reservation A man makes a lease rendring rent and does not say to whom the rent shall be paid this by implication shall be to the Lessor and his heires But if the words be to the Lessor the heire shall not have it 31. H. 8. Dyer 45. 12. E. 3. Ass 86. Plowd Com. 171. in Hill and Granges Case 10. E. 4. 18. 21. H. 7. 25. The Reservation of a Rent in some Cases shall make severance of the grant and make severall grants and severall reversions As if a man makes a lease of three Mannors reserving twenty shillings for one five pound for another and twenty pound for the third there are severall Reversions and there shall be severall Avowries 14. Eliz. Dyer 308. VVinters Case 9. E. 3. 12. 5. Coke 55. Knights Case 3. For the Tenendum The proper office of the Tenendum is to reserve the tenure and to toll the tenure by implication Before the statute of Quia Emptores terrarum If a man made a feoffment the feoffee held of the feoffor by such services as the feoffor held over But if other services were Reserved then the feoffee held by such services as were reserved That the Donee in tayle shall hold of the donor as the donor held over is Regularly true if the donor make no speciall Reservation for then the speciall Reservation excludes the tenure which the Law would create Cokes Instit sect 19. vid. 34. H. 8. Dyer 52. 4. For the Condition That does likewise direct and rule the grant the Condition does change the qualitie of the grant and makes the estate Conditionall and defeasible which otherwise would be absolute and indefeasible So that all these viz. the Habendum the Reddendum the Tenendum and the Condition are de modo Concessionis and doe Rule and direct the grant the first limits and sets forth the quantity the other describe the quality of the estate And of all these the Tenendum is inseparably annexed to the estate the rest may bee determined and yet the estate continue but the tenure cannot be determined as long as the estate continues 1. The Condition may be released 2. The Rent may be released 3. The estate may be enlarged But the tenure cannot bee destroyed It may bee transferred from one to another in Case of Common persons But a Tenure in Capite cannot be transferred or extinct by any release or grant for it is an incident inseparably annexed to
and delivers seisin secundum formam Cartae this livery and seisin is good albeit hee did not enter into both nor into one in the name of both and yet this is done in another manner then his authoritie warrants for his authority was to enter into both and to deliver seisin of both neyther of which hee doth no not so much as enter into one in the name of both So vvhen the Feoffment is made to two or more and a letter of Atturncy to make Livery to both and the Atturney makes Livery of seisin to one of the feoffees secundum formam effectum Cartae this is good to both and yet in that Case hee that is absent may vvayve the Livery Surely this is done by the Atturney in another manner then the authority warrants for his warrant was to make Livery to both and the intention of the Feoffor was that both should take and the estate bee setled in both and yet hee makes Livery to one onely and so that the estate may bee setled onely in him and yet hee hath well executed his authority for in substance hee hath done that which is commanded and though it differs in the manner it is not materiall both those Cases are put in Cokes instit sect 66. But in the Case in Question the Commissioners have done in substance that which was commanded them therefore their authority is vvell executed and the act they have done is good That they have done in substance that which vvas commanded them appeares in it selfe for their authority was to grant the Mannor of Dale to A. and his heyres this they have done And if they have added any thing to the grant whereby it may bee sayd to bee done in another manner yet the act being done in substance it shall bee good 3. That wherein they have exceeded their authority scilicet the Reservation of the tenure it is not of the essence of the grant Of the essence of a grant are onely Grantor Grantee and the thing to bee granted and apt words in an Instrument or Patent Besides of the essence of a grant it cannot bee for grants were at Common-law tenures were introduced by the Conquest Selden in his Not. to Eadmer 194. Bracton libr. 2. de acquir rerum domin The tenure is another distinct thing aliud from the Land in that they cannot consist in one person the Land is the thing granted that belongs to the Patentee the tenure is Reserved to the King that belongs to him the Reservation is aliud or supra or praeter the grant not alio modo And therefore the Letters patents may bee voyde for the tenure and yet good for the grant of the Land 4. Although it were admitted that the Reservation of the tenure bee not a distinct thing or aliud from that which they had authority to doe but is rather a doing of the same thing for which they had warrant in another manner then their authority does warrant yet it will not follow that the whole act is voyde For an authority given may bee executed in another manner alio modo then the Commission doth Warrant and yet stand good for that which is done according to the authority And that may be in these Cases 1. Where the authority is cloathed with an interest for there in many Cases he that hath the authority may vary from the authority And the act though it bee done in another manner shall bee good As where the custome of a Mannor is that the Lord may grant Landes by Copy of Court-roll in Fee if the grant bee in tayle or but for life this is good Stanton and Barnes his Case Hill 36. Eliz. Roc. 492. in B. R. Cokes instit sect 66. So where the custome was to grant Copyes for two lives and hee grants to the Husband for life and after to the Wife Durante viduitate This is good Downes and Hopkins Case P. 36. Eliz. B. R. The Statute of 32. Henr. 8. doth enable tenant in tayle to make a Lease for one and twenty yeares if he makes a Lease for twenty yeares onely or to one for tenne yeares and after makes a Lease to another for eleven yeares more this is good and so it hath beene Resolved in Tompson and Traffords Case Hill 35. Eliz. B. R. 2. Where the varying from the authority given is in letter or circumstance and not in a point materiall or in substance for that see the Cases cited before Cokes instit sect 66. Litt. 434. 3. Where the varyance from the authority although it bee in matter of substance is supplyed by operation of law As if a licence bee granted to a Copy-holder for life to make a Lease for tenne yeares if hee shall so long live the Copy-holder makes a Lease for tenne yeares absolutely without the limitation videlicet if hee shall so long live yet adjudged good and the Licence well pursued It was Hatt and Arrowsmiths Case Hillar 38. Elizabeth B. R. And in the Case in question where all agree that the Kings meaning in this Commission was that a tenure in Capite should bee Reserved albeit it bee not expressed in words or if it had beene in expresse termes that a tenure in Capite should bee reserved and they had onely granted the Mannor without reservation of any tenure yet the Law supplying this defect and raysing a tenure in Capite this shall make the grant good 4. VVhere the varyance from the authority is cured by the party himselfe by some other act As if Tenant in tayle Husband and Wife a Bishop c. who are authorized by the Statute of 32. Henr. 8. to make leases for one twenty yeares or three lives of Landes usually lett make a lease of Landes usually lett and of Landes not usually lett reserving one entire Rent all is voyde Shepheards Case But if Tenant in tayle will make such a lease and reserve the accustomed Rent for the Landes usually lett and another Rent for the Landes not usually lett heere the lease shall bee good for the Landes usually lett and voydeable onely for the other for by these severall reservations the varyance from the authority is Cured Tanfeild and Rogers Case Trin. 36. Eliz. B.R. 5. VVhere the varyance from the authority how materiall soever it bee is notwithstanding made voyde eyther by the Common-law or act of Parliament As where the King does licence I. S. to grant twenty Markes annuity in Mortmaine and hee grants the Annuity with clause of distresse by Hussey and Bryan chiefe Iustices and Starky chiefe Baron and Iustice Faierfax the addition of distresse is without warrant and voyde yet all admit the grant of the Rent good notwithstanding 2. 3. H. 7. grants 36. By the Statute of 1. Elizabeth a grant by a Bishop of an ancient Office of Seneschall-ship to two that had never before beene granted but to one is adjudged voyde 10. Coke 61. the Bishop of Salisburyes Case Put case then that such a