but if he dye and his Heir in by Descent he cannot enter After a Discent the Disseisee abates the wife of the Disseisor recovers dower by confession if the disseisee may enter A Lease for life is made rendring a Rent with a Re-entry for default of payment the Lessor hath cause of Entry the Lessee is disseised and a discent cast the Lessee dies the Lessor may enter for the Land was alwayes recontinuable by Entry If Lessee for years upon Condition be outed after the term and a dissent cast the Lessor shall enter for breach of the Condition Escheat IF Lessee for yeares makes a Feoffment and the Lessor dies without Heir the Lord shall not enter for the Escheat for it is a good Feoffment against him A. infeoffs B. so long as Paul's Steeple shall stand B. dies without Heir if the Land shall Escheat Vide Attainder Bastard Estate IF a Lease be made so long as A. and B. shall be Justices if one of them be removed the Estate is determined for the time was in the Copulative and a Collaterall determination But if it had been during their lives and one of them had died the Estate had continued A. hath Issue a Son and a daughter Land is given to the daughter and to her Heirs Females of the body of the Father begotten she hath not Estate tail but for life only Inst If a lease be made to a Dean and Chapter for their lives they shall have a Fee for they never die If a Rent of twenty shillings a year be granted until the Grantee shall receive twenty pound the Grantee hath an Estate but for twenty years for it is certain So if it had been granted untill A. shall arive at his full age he takes but for years If Land of twenty shillings a year value be granted until he shall receive twenty pounds out of the Issue and profits and Livery be made he takes an Estate for life by reason of the uncertainty of the profits If A. makes a Lease for life reserving a Rent and if it be behind that he shall enter and retain til he hath received the Rent out of the profits of the Land all the Estate of the Lessee is defeated 30 E. 3. 7. If A. hath two Daughters and the Eldest gives Land to the youngest and to the Heirs of the body of the Father begotten there passeth but an Estate for life for the donor is one of the Heirs and it cannot be an estate tail in her self of her own making and it cannot inure to the other for she is not Heir But if it had been given to the youngest the eldest being born out of the Realm it shall go to him Estopple IF a Praecipe be brought against the Father of the Sons Land and he loseth and the Son after the decease of the Father brings a Writ of error to reverse the Recovery and Judgement is affirmed the Recoveror may enter upon the Son for by bringing his writ of Error he is Estopped to say that his Father was not seised If an Infant delivers a deed Which bears date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date neither shall a Fem Covert Husband and Wife seised and to the Heirs of the Husband the Husband makes a gift in tail the Wife recovers against the donee in a Cui in vita supposing that she hath a Fee and dies and the donee dies and the Issue of the Husband and Wife brings a Formeâ—on in Reverter and though he was Heir to the Wife he shall be Estopped to say that he had a lesser estate than in Fee yet the Issue who claims by the Husband shall not be Estopped Vide Dower Estover A. seised of an house on the part of his Mother and Estovers are granted to him in Fee and he dies without Issue the Estovers are extinct If there be two disseisors of a house and they have Estovers granted to them to be imploied in the same house and the disseisee releaseth to one the Estovers remain for part If one hath Estovers in certain in ten Acres of wood and five of them descend to him he shall not take the whole out of the residue Exchange IF A. exchanges twenty Acres with B. for ten of equall value B. is impleaded and loseth ten Acres vouching A. and recovering in value she shall have all the ten Acres again which he gave to A. and retain the ten Acres Residue without Warranty for the folly of A. IF A. exchangeth Land with B. in Fee who infeoffe a stranger one enters into the Land of A. by Title Paramount he cannot enter upon the Feoffee of B for the privity of the Exchange is determined by the Feofment If A. and B. exchange Land and A. makes a Lease for life B. is impleaded and recovers in a Warrantia Chartae and hath execution of other Land the Tenant for life dies A. enters upon whom a stranger enters by Title Paramount he hath no remedy for the Land rendred in Value for that doth not go in privity as the Exchange doth If A. and B. exchange Land and A. dies in a Praecipe against B. he vouches the Heir of A. who enters into Warranty and cannot bar the Demandant by which he recovers and B. over in value the Demandant enters if B. may enter upon the Heir or is chased to his Habere facias ad valentiam Some think he may enter for a descent is not material against a Condition as this is for if there had been an express Condition he might have entred and so he may now But if part of the Land exchanged had been recovered against B. he could not have entred for he shall not be his own Judge of the portion But where all is recovered the whole Exchange is avoided and therefore he may enter If one Exchangee makes a Feofment of his part the other shall not enter upon the Feoffee for the Condition is determined and dissolved But Quaere if after the Feofment the other may vouch If two Acres are exchanged for a Mannor and a stranger enters by title Paramount into one Acre he shall enter into all the Mannor for it is an entire thing And Quaere if he shall retain the other Acre Execution IF Tenant in tail with a Remainder over with VVarranty recovers in value and dies before Execution he in Remainder shall sue Execution because he is privy If Tenant in tail dies without Issue If a man Recovers in value Land in Burrough English Quaere if the youngest Son shall sue Execution But if the Issue in tail recovers in a Formedon and dies without issue before Execution the Donor cannot enter or have Execution If tenant in tail discontinues and dies leaving a daughter his Wife Privement Enseint with a Son the daughter recovers in a Formedon and dies the son born cannot enter or have Execution But
tayl after possibility in which case she hath but a Freehold in the remainder otherwise if her Estate had been in tail Land is devised to A. for life the Remainder to him that shall be his first Son the Remainder in Fee A. aliens in Fee if he in the Remainder may Enter for the Forfeiture Quaere Frankmarriage THree Jointenants one of them gives his part with his Daughter in Frankmarriage to one of his Companions and by the same Deed releaseth to them in Frankmarriage and makes Livery some think that is a good gift in Frankmarriage for this reason that although one Jointenant cannot infeoffe his Companion yet his Companion and another he may and the Livery made to the other shall vest the Land in both and that is for the advantage of the third as in Gascoigues case 7 H. 6. 3. It was not a surrender for the advantage of the third Nor in 27 H 7. 41. for the advantage of the Husband so it shall not be void here for the advantage of the third person But others think the contrary because the Husband cannot take it immediately from his Companion and for him it is void and good for his Wife As if a man makes a Feoffment to a stranger his own wife if livery be made to the stranger it will operate but to the benefit of the stranger and will be void for the Wife So here it is good for the wife the Release is good for the Husband Further if one Jointenant cannot infeoffe his Companion as it is holden in 10 E. 4. then it will inure severally viz. to his Companion as a Release and to his wife for life for if it be no good Frankmarriage then 't is the Estate for life and so it was resolved between Webb Porter in 24 Eliz. And then they take in Common and severally and no Frankmarriage Grant TEnant in tail holds by a Rent the Donor grants the services nothing passeth for the Rent cannot passe but as a Rent service Lord and Tenant by Rent and Fealty the Lord grants the services of the Tenant saving the fealty Nothing passes by that Grant for the Rent cannot pass but as a Rent service for a Rent Charge or Rent Seck will not pass by those words The same words cannot be a Grant and a Confirmation too If a Disseisor grants a Rent Charge to the Disseisee and he grants it over and after re-enters he shall hold it discharged Causa qua supra If the Lord marries the Tenant or by any means hath as high an Estate in the Tenancy as he hath in the Seignory he cannot grant the Seignory over If the Tenant be in Ward or disclaims the Lord may grant over the Seignory But if the Tenant be Tenant for life of the Seignory and the Seignory is granted to him in Fee he cannot grant it over for he never had possession of it But if he had possession and it is suspended by taking an Estate for life yet he may grant it over If the Parson and Ordinary grant a Rent Charge to the Patron the Successor shall avoid it for the Assent of the Patron ought to be expresse where the Successor shall be bound But if they had all granted it to A. who had granted it to the Patron that had been good If a Rent be granted for life and by another Deed it is granted that it shall be lawfull for the Grantee and his Heirs to distrain for the same Rent it must be a Rent of the same value for the Rent determins by his death So if the King grants to the Mayor and Commonalty of D. the same Liberties which the Mayor c. of L. hath It shall be intended such Liberties A. makes a Lease for life reserving the first four years a Rose and after a yearly Rent of twenty shillings the Lessor grants the twenty shillings to commence after the end of the four years the Grant is void for it is all but one Rent and then if the Grant should be good the Grantor should have a term in the Rose for four years whereas before it was a Freehold and then it is no more but that a man hath a Rent in Fee and grants it after four years that Grant is void otherwise of a Rent created de Novo 8 H. 7. 3. A. seised of a Rent in Fee grants it to one for twenty years from the time of the Atturnment of the Tenant and dies the Tenant Atturns if this be a good Grant Quaere Gavel kind A Lord in Gavel kind hath two Sons the Tenant aliens in Mortmain the Lord dies the eldest Son enters into both parts the Seignory shall descend as the Tenancy But now the Land admitting a Licence had been obtained being aliened in Mortmain the Custom is extinct A. seised of Gavel kind Land is impleaded and vouches the Vouchee enters into Warranty the Tenant dies having two Sons if the Eldest alone shall sue Execution Quaere Habendum A Rent is granted to two Habendum to the one until he be married and to the other until he is advanced to ten pounds per annum Quaere if they be Tenants in Common or Jointenants and when one performs the Condition if the other shall have all So if a Rent is granted to two Habendum to the one for his life and to the other for his life if they be Tenants in Common Vide Baron Fem. Harriot A Fem Lessee for life by the Custome of a Mannor marries by license the Husband dies the Lord shall not have a Harriot for there is no change of his Tenant So if Land be let to Husband and Wife for their lives and the Husband dies the Lord shall not have Harriot for the same reason If a Fem lessee for life marries and she dies the Lord shall not have a Harriot for she had no Chattles And the Custome may be reasonable if in such case the Husband dies where the Wife is seised that he shall pay a Harriot for if the Wife dies there is none due If the Tenant devises all his Goods yet the Lord shall have his Harriot for the devise takes effect after the death If a man hath two Horses at the time of his death one is a young one and the other worth forty shillings and the Lord doth not seise until two years after the death of the Tenant and the youngest becomes worth five pounds the Lord shall not have him for he had a property presently by the death of the Tenant in the other A Cow hath three Calves before the seisure of the Lord the Lord may seise them with the Cow Quaere Husband and Wife and the Son purchase to them and to the Heirs of the body of the Son begotten the Husband dies the Lord shall not have a Harriot 24 E. 3. Husband and Wife purchase land to them and to the Heirs of the Husband who dies the Lord shall not have a Harriot Heir A Rent is
granted to commence after the death of the Grantee the Heir shall take it by Descent A. makes a Feossment upon Condition and if it be broke that it shall be lawfull for him to reenter during his life he shall enter by expresse Reservation and after his death his Heir shall enter by the provision of the Law If an Encroachment of Services be made upon the Husband if the Wife be endowed she shall not be contributory but the Heir cannot avoid it A Seignory is granted for years the Rent being behind the Tenant dies the years expire if the Grantee shall have Debt against the Heir of the Tenant for the Rent due before and after the death of the Tenant Some say the Heir shall not be charged unless the Tenant had bound himself and his Heirs by express words and it shall not be esteemed the proper debt of the Heir If A. hath a Daughter who hath a Son a Remainder is limited to the right Heirs females of the body of A. the Son shall take the Remainder for he is a purchaser but he shall not have the land by descent which was given to A. and the Heirs females of his body 20 H. 6. 43. P. Newton Lessee for life the remainder to the right Heirs of A. who hath a Son who dies without issue the land shall descend to the Heirs on the part of the Father for the Son takes by purchase and as Heir to A. so that the Heir of A. must take it If land be given to a man and to his Heirs on the part of his Mother begotten and his Mother is dead and he dies without issue the Heir on the part of his Father shall take Quaere If a man makes a Gift in tail of Land on the part of his Mother reserving a Rent and dies without Issue the Heir on the part of the Mother shall have the Rent as incident to the Reversion If a man binds himself and his Heirs in twenty pounds and dies and his Executors have ten pounds onely an Action of Debt lies against the Heir for all for if the Creditor makes choice of the Executor he cannot have any remedy against the Heir for the rest If the Obligor makes the Obligee his Executor and leaves ten pound and the Debt was twenty he may detain that and bring an Action of Debt against the Heir for the rest for it is a apporcioned by the Act in Law If Land be given to one and the Heirs males of his body the Remainder to the Heirs Females of his body the Daughter of the Son shall not have the Land If Land be given to one and the Heirs males of his body and to the Heirs females of his body if he hath Issue male and female they shall take by Moities by descent severally If a Woman hath three Sons by severall Husbands and Land is given to her and to the Heirs of her body by the first and second Husband begotten the two Sons shall take severally by Moities and yet the Mother had an Estate A. having two Daughters one is attainted of Felony a Remainder is limited to the Heirs of A. the other shall take nothing If a Remainder be limited to the Heirs of B. who hath a Son who is attainted the Remainder is void and the Fee rests in Lessor Land is given to A. for life the Remainder to B. for life the Remainder to the Heirs of A. who dies B. enters and dies a Stranger abates the Heir of A. shall have a Writ of Right upon the possession of A. and if Land be given to C. and D. and to the Heirs of C. who dies and a Recovery is had against D. and he dies the Heir of C. shall have a Writ of Right of all the Land A. binds himself and his Heirs in twenty pounds and dies the Executors have Assetts the Obligee releaseth to the Heir all Actions of Debt the Executors pay the Assetts to other Creditors The Obligee may have an Action of Debt against the Heir for at the time of the Release he was not intitled to have an Action against him but if the Executors or the Heir had no Assetts at the time of the Release and after the Heir recovers Assetts the Release will bar him If A. makes a Feoffment of Land which he hath on the part of his Mother to the use of himself and his Heirs it shall be to the use of the Heirs on the part of his Father if he dies without Issue A Fem sole hath a Rent Seck and marries the Tenant of the Land grants to the Husband and his Heirs to distrain for the Rent the Husband and Wife die without Issue the distress is extinct for the Heirs of the Husband are onely privy to distrain A Condition does descend upon the Heir at Common Law Incertainty IF one inseoffs another of twenty Acres viz. of one to the use of A. and does not shew of which Acre A. takes nothing by the Feoffment for the possession cannot be executed for it was not certain which are passed to A. and A. cannot have Election for he is not privy If a Reversion be granted to one and after to another and the Tenant atturns to both neither of them shall take for the incertainty If Land be given to a Man and a Woman upon Condition that which of them first marries shall have in Fee and they intermarry neither of them shall have Fee If the Reversion be granted of black Acre or of white Acre if Atturnment be good Quaere for the incertainty A. gives two Acres to B. Habend the one for life the other in Fee without Deed rendring a Robe or a Rent and doth not shew which he shall have for life A. lets two Acres rendring a Rent on Condition to be performed by the Lessee that he shall have Fee in one Acre not shewing which and makes Livery of both Quaere Infant IF an Infant inseoffs two and at his full age releaseth to one it inures to both If an Infant be forejudged he is bound for ever but if he makes a Feoffment of a Mannor and the Feoffee is forejudged yet the Infant may enter into the Mannor and distrain for the Mesnalty the reason is because in the first case he was party to the Record and in the last case the Forejudger was against the Feoffee who had a deseasible Title A Recovery in Wast against an Infant will bind him but so it will not against his Grantee for he had a Title to defeat his Estate so in a Cessavit Conditions and Forfeitures that will bind a Fem Covert will bind an Infant If an Infant makes Livery within view he shall not have an Assize if the Feoffee enters for it is more than a Livery in Law If an Infant Disseisor makes a Feoffment and a Dissent is cast and the Disseisee releaseth to the Heir yet the Infant shall have a Dum fuit infra aetatem for he demands the
same advantages which the Wife should have But if the Land had been in Execution then it had been unavoidable because it had been executed If Tenant for life and he in reversion levy a Fine it shall be lyable to the statute of Tenant for life during his life only and never shall be lyable to the Statute of him in reversion for though the words of the Fine be joint yet he may avoid it by shewing the truth of the matter So in the principall case he may shew that the Estate of the Husband was during the Coverture only If the Grantee of a Rent Charge dies without Heir the Land shall be bound with a Statute Merchant entred into by him for though it be determined yet the determination shall not have relation for if the Tenant be bound in a statute and dies without Heir it shall be extended against the Lord by Escheat And if one manumits a Villain a Statute in which he was bound shall be executed upon him if the Writ of Execution did issue out against him before Land whereof a man hath onely Seisin in Law shall be lyable to a Statute The Conisor of a Statute is in Execution and his Land also the Conisee releaseth to him all his Debts the Execution it discharged for the Debt remains untill it be levied of the profits If the Son be Tenant in tail the remainder to the Father in Fee the Father is bound in a Statute and dies and the remainder descends upon the Son he aliens in Fee or suffers a Common recovery the Land is lyable to the Execution presently As if the Lord had recovered in a Cessavit against Tenant in tail with a remainder over being charged the Land in the Lords hand shall be lyable to the Statute of him in Remainder presently as it shall be to the Grant of a Rent by him though as a remainder it was not lyable Surrender LEssee for forty years makes a Lease for ten years rendring a Rent the first Lessee surrenders and the Lessor brings Debt against the second Lessee Quaere If Lessee for years makes livery as Atturny to the lessor it was ruled in 34 Eliz. in C B. to be no surrender Tenant for life cannot surrender to him in Remainder for years for he hath a Freehold in possession which cannot drown in a Chattle If a lease be made to commence at Easter and before Easter the lessee takes another lease to begin presently If that be a Surrender Some think it is A lease is made for ten years and after another lease is made to begin after the first lease determined the first lessee Surrenders the second lessee may enter otherwise if the Reversion had been granted for ten years A lessee cannot make an Actual surrender before Entry If a lease be made for years the remainder for years the remainder to the first Lessee in Fee he in remainder may surrender to him and yet he hath nothing in possession So if there be lessee for years the remainder for years and the Fee descends to the first Termor he in remainder may surrender If A. makes a Lease for years to B. to begin at Michaelmas and before the day he enfeoffs B. B. dies before the day and his Son enters if the Executor may enter upon the Heir is the question Tail A dies leaving Issue two Daughters Land is given by Deed in tail to the youngest and to the Heirs of the body of the Father begotten and she hath Issue and dies and the Issue brings a Formedon against the Eldest Daughter the question is what Estate the Daughter took Tenant in tail in Vse the remainder unto his right Heirs enters upon the Feoffees and makes a Feoffment and takes back an Estate in tail the remainder to his right Heirs and after the Stat. of 27 H. 8. is made and he dies how the Issue may avoid the second Estate tail and take the first is the question It seems he cannot take the first Estate in Tail by no means for when he entered upon the Feoffees and made a Feoffment then the remainder in Fee was not in him yet by his Feoffment a Fee simple passed not determinable by his death but defeasible by the Entry of the Feoffees then the Fee simple must needs pass being he had the Vse to his right Heirs then when the Stat. of 27 H. 8. was made the Vse not being in Esse but the right of an Vse the possession is executed according to the right of the Vse and then when he dies there is no Remitter to the Estate for that was not in Esse A Gift in tail is made with Warranty accordingly the Donee releaseth the Warranty to the Donor and after the reversion is granted and the Donee atturns If the Issue in tail be impleaded he shall not vouch for the release hath extinguished the Warranty for ever for the Statute speaks of Tenements and a Warranty is no Tenement but a Covenant reall which is extinguished by the Release As if an Annuity be granted in tail a Release of the Donor extinguisheth it If Tenant in tail makes a Lease to begin at Easter reserving a Rent and dies and the Issue in tail enters and makes a Feoffment before Eastar the Feoffee cannot avoid the lease for the lease was not avoided by the Entry of the Issue A lease is made for years the remainder in tail he in Remainder grants it over in Fee the Lessee atturns the years expire the Grantee enters and dies seised Tenant in tail dies his Issue may enter for the Grant was not but for the life of Tenant in tail and then he did not die seised in Fee if the dying seised had been after the death of Tenant in tail it should not have taken away his Entry Tamen Quaere But if the Issue of the Issue of the Grantee had entered and died seised there his Entry had been taken away and if Tenant in tail enfeoffs the Donor who dies seised by most that Dissent will take away the Entry of the Issue Tenant in tail makes a Feoffment and dies the Feoffee makes a lease for life and grants the Reversion to the Issue he shall not have a Formedon against Tenant for life for he hath assented to the reversion But if Tenant in tail makes a lease Pur auter vye and dies notwithstanding the Dissent in Fee of the reversion the Issue shall have a Formedon for the Reversion is waived by using the Action If Donee in tail to him and his Heirs males the Remainder to him and the Heirs Females of his body makes a Lease for years reserving a Rent and dies without Issue Males if the Heir Female accepts the Rent she shall be bound for the Lease was derived out of both their Estates and she comes in by descent but if the Heir male had made a Lease and died without Issue the Heir Female cannot make that good by acceptance If Tenant in tail of a
first Lease for a Lease for years is nothing but a Contract If a Lease be made for ten years to commence at Michaelmas and after he makes a Lease for twenty years to commence at Easter the second Lease is good for ten yeares though the first Lessee surrenders before for it was void for ten years at the first by the same reason if one makes a Lease for life and after makes a Lease for years to commence presently the second Lease is void although the first Lessee dies within a year after If Lessee pur auter vye makes a Lease for twenty years by Indenture and after purchaseth the Reversion in Fee and Cesty que vye dies the Lessor may enter upon the Lessee although the years continue for he hath a new Estate and may confesse the Conclusion and avoid it But if A. lets Lands in which he hath nothing and after purchaseth the Land the Lessee may Estop him although he had not any Estate at the time of the Lease so he cannot confesse the Lease and avoid it as he may in the other case for in this case the Lease took effect by way of Estopple but in the other case there was an Interest conveyed at first If the Patron grants the next avoidance and after he the Ordinary and Incumbent make a Lease of the Rectory for twenty years the Incumbent of the first Grantee shall avoid the Lease but if he dies during the Lease the Lessee shall enjoy it during the rest of the years against the Successor And if Land be given to Husband and Wife and to the Heirs of the Husband he makes a Lease for years and dies after the death of the Wife the Lessee shall enjoy the Residue of the years against the Heir of the Husband for the Lease did once take effect But where a Lease for life is made and a Lease for years to begin presently that was void at the beginning against all persons and therefore can never take effect If the Donor disseiseth the Tenant in tail and makes a Lease for years and the Tenant in tail dies without Issue the Lessee shall have the Residue of the term against the Donor but if Tenant in tail makes a Lease for years and the Donor confirms and the Issue outs the Termor and dies without Issue the Lessee shall not enjoy his term for in the one case he claims from the Donor and in the other from the Donee If a Lease be made to A. for life and twenty years over he shall have the years although livery be not made of the Land If a lease be made for the lives of A. and B. and A. dies the lease shall continue for the life of B. But if two make a lease for sixty years if they two shall so long live if either of them die the Estate is determined for that was not a limitation but a Condition But if a lease be made during the time that A. and B. shall inhabit within London and one of them dwells in another place the lease is determined for it is a collaterall determination If I licence one to occupy my land until the Corn that is growing upon him is ripe that is a good lease Lessee for twenty years makes a lease for ten years and then makes a lease to the same lessee for ten years to commence after the determination of the first ten years the last ten years are not out of the first lessee and therefore the second lessee shall have the Rent which was reserved by the first lessor during the first ten years Quaere A. makes a lease for twenty years and then makes another lease for forty years to C. to commence after the expiration of the first lease and then he makes a lease to the first lessee for thirty years the lease of C. shall not begin presently for nothing extinguishes and avoids the lease but the taking the second lease And then the lease to C. is an impediment that the second lease cannot commence and therefore the first lease is not determined Tenant in tail marries and makes a lease for years the Wife endowed shall avoid the lease for her time but after her decease the lease will stand good against the Heir if the Heir accepts the Rent If Tenant in tail makes a lease for years and marries and dies without issue the Donor avoids the lease and the Wife recovers her Dower the Lessee shall enjoy it against her A. makes a lease for forty years Provided that if B. dies within the term that it shall be but for twenty A. dies at the end of four and twenty years the lessor brings an Action of Waste for waste done between the three and twenty and four and twenty years some think it is maintainable in the tenuit for the term continues until the death of B. If a Rent had been granted for forty years with such a Proviso and he dies ut supra the Tenant of the Land may have an Action of Accompt for the Rent received after the twenty years for now upon the matter the Grant ended at twenty years If a Lease be made of Land to me during my life and the life of B. that is but an Estate for my own life for the greater drowns the lesser If a Lease be made to two for forty years if they shall so long live and one dies the Lease determins for it is a Condition and not a Limitation So if the Lease had been so long as A. and B. shall be Justices c. A. le ts during the life of Baron Fem the Lessee grants during the Coverture Limitation IF Land be given to one and the Heirs males of his body the Remainder to the Heirs Females of his body the Daughter of the Son shall not take by this Limitation If Land be given Habendum to him and the Heirs males of his body and to him and the Heirs Females of his body if he shall take it as a Remainder Quaere But Litt. faith in the last case but one that the Warranty of the Father shal be lineal to the Daughter If Land be given to one and the Heirs Males of his body and the Heirs Females of his body if he hath Issue Male and Female they shall take by Moities severally by descent So if a Woman hath three Sons by severall Husbands and Land is given to the Woman and to the Heirs of her first and second Husband some think the two Sons shall take severally by Moities and yet it was but one Estate in the Woman A Feoffment is made to the use of I. and after to the use of the Feoffor and his Heirs the Feoffor doth not take it by Remainder for the Limitation to himself is void for the Law saith as much but it is in him as a Reversion But if the Feoffment had been to the use of the Feoffor for life there the Feoffee shall have the Fee to his own use If a man makes
for the Husband cannot take it immediately from his Companion therefore for him it is void and good for the Wife As if a Feofment be made to a stranger and the Wife of the Feoffor The Husband is bound in a Statute and after he and his Wife levy a Fine of the Wife's Land to A the Husband dies The Statute shall not be extended during the Wife's life for nothing passed from the Husband but the estate which he had in right of his Wife And A shall have the same Advantage which the Heir of the Wife should have had Tenant in tail enfeoffs one Daughter within age and dies she is remitted but the other Daughter shall not take Advantage of it Agreement IF I disseise one to the use of my self and A who after Agrees to the disseisin we are joint-tenants 21 Ass 49. If one sister in tail enters upon the Discontinuee of her Father claiming to her and her sister and the Discontinuee ousts her and she recovers in an Assise the other sister shall have the moyty by her Agreement But if I disseise one to the use of A. after twenty pounds received by me of the profits or to the use of my self for life and after to his use in fee there he shall have nothing by his Agreement for I cannot apportion the wrong If I disseise my Tenant for life to the use of A he shall have but a Free-hold by his Agreement If the Issue in tail within age by covin commands A to disseise the Discontinuee of his Father A disseises him to the use of B for life and after to the use of his own right Heirs B agrees A dies B dies the Heir of A enters and enfeoffs the Issue he is remitted because of his minority An Agreement cannot be to parcel of an Estate Aid IF Coparceners make partition and one has the Seignority and a Tenancy escheats and she is impleaded of that she shall not have Aid of the other Coparcener for Aid cannot be granted but of Land descended If one Acre is given to the eldest Daughter in Frank-marriage and another in fee descends to the youngest if she shall have Aid is the question Alien IF a Reversion be granted to an Alien and after he is made a Denizen and then the Tenant atturns he shall not take to his own use A Lease for years is made to an Alien upon condition to have Fee he is indenized and hath License to purchase and then performs the Condition The King shall not have the Fee for it hath not a Relation as to the devesting of the Fee further than the performance although that for Charges and Incumbrances it hath a larger Relation If an Alien Disseisor be made a Denizen the King shall not have the Land if the Disseisee doth after release unto him but if an Alien had been the Feoffee of a Disseisor it had altered the case for it is a new purchase in one case and but an extinguishment of a right in the other and it seems that the Issue of such an Alien born within the Realm shall be in ward for Land descended to him on the part of the Mother during the life of the Alien if he be not Heir apparent And a man born in England cannot make himself heir in special tail to a Baron Fem whereof one is an Alien neither shall he have an Appeal for the death of such a Father or Mother Alien If Land be devised to an Alien and he is made a Denizen and after the Devisor dies there he shall take by the Will for all takes effect by the death of the Divisor But in the case above if when the Office is found the Lease should be adjudged in the King from the beginning then it takes away the Condition and then he could not acquire a fee by his performance If a man seised in fee marries an Alien and makes a Feofment and she is made a Denizen and the Husband dies she shall not recover her Dower Annuity IF an Annuity be granted for the life of I and the Grantee releaseth all Actions of Annuity to the Grantor it seems he shall not have an Action of Debt for the arrerages after the release and after the death of I. for when they were due he had no remedy If a Rent charge is granted out of Land in Fee the Heir of the Grantee shall have his election to bring his Writ of Annuity and so shall the Executor of the Grantee if the Grant were for years And if the Wife brings Dower the Heir shall not say that he will take it as an Annuity for it must be determined by the bringing of his Action and if she be once endowed the Heir shall not have an Annuity of the other two parts for his Writ ought to be grounded upon the Deed and that for all or for none for there can be no apporcionment of an Annuity or personal thing Appendant IF an Advowson be Appendant to a Mannor and the Advowson is granted to one for life and then the Grantee is enfeoffed of the Mannor cum pertinentiis yet the Free-hold of the Advowson is not Appendant But if the Grantee had regranted it to the Grantor it had been Appendant But if A. makes a Lease of his Mannor for life saving the Advowson and after grants the reversion of the Mannor una cum Advocatione the Advowson shall never be Appendant to the Mannor again Husband and Wife make a Feoffment of the Mannor of the Wife to which an Advowson is Appendant the Feoffee makes a Feofment of one Acre with the Advowson the Husband dies the Wife recontinues the Mannor she shall present without any recontinuance of the Acre for it was not appendant to the Acre for if a man makes a Feofment of an Acre parcel of a Mannor cum pentinentiis nothing of the Advowson which is appendant to the Mannor passes If one hath a Mannor and makes a Lease for life of all the Mannor except one Acre now the Fee of the Acre is divided from the Mannor during the Lease for life but after the determination of the Lease it shall be appendant again Apporcionment TWo Joint-tenants by Twelve-pence the one grants what belongs to him upon condition the Lord grants the services of one and Atturnment is had the Condition is broken the Grantor enters he shall hold by Twelve-pence also for by the Grant no Apporcionment is made and then by the Grant Twelve-pence passed and Twelve-pence remain If tenant for years enfeoffs the Lord of one Acre the Seignory shall be Apporcioned A Rent is granted in Fee out of Land in Borough-English and at Common Law the Grantee dies leaving two Sons the eldest shall have all for the rent being entire cannot be Apporcioned and the eldest being Heir shall have all If a Rent charge be granted in Fee and the Grantee dies and his Wife recovers her Dower of the third part of the Rent the Heir cannot
Assets in the Heir in a Formedon or Debt for the remainder was never in the Mother for it commenced after her death But if a Rent Charge be granted to I. to commence after his death 't is otherwise for the Heir takes it by descent If Executors have a Villains in right of their Testator and enter into Land purchased by him it shall be Assetts although they have a Fee as Land descended to the Heir shall be Assetts to a Chattle viz. to a Debt of a Stranger The Grantor of a Rent Charge in taile einfeoffes the Grantee of the Land who makes a gift in tail of the Land rendring so much of the Services as he payâ— over to the Lord Paramount it seems that these Services shall be Assetts in the Heir for they are particularly reserved for the Land Assignee IF a Feoffment be made with Warranty to the Feoffee his Heirs and Assigns if he makes a Feoffment over and the second Feoffee re-enfeoffes the first Feoffee he shall vouch for he may be Assignee of his Father being he does not claim as Heir And the Lord by Escheat or Mortmain or of a Villaine or who enters for a Consent to a Ravisher shall not be said Assignees and yet they shall Rebutt If Tenant in tail be with Warranty to him his Heirs and Assignes his Feoffee in Fee shall not be said Assignee for he hath no part of the Estate tail If Land be given to One and his Assignes for ever and it is ganted to him and his Assignes that they shall have twenty Load of Wood yearly for ever Tenant for life grants over his Estate and dies the Assignee shall not have the Wood because his Estate is now determined Attainder A. Dyes leaving two Daughters the one is attainted of Fellony a Lease is made the remainder to the right Heirs of A. the other shall not take the Daughter that was attainted being living for one is not Heir alone but if the Father dies seised of Land a moity shall escheat If the Mesne grants the Mesnalty upon condition that if the Grantee pays a certain sum of Money to the Grantor that he shall have Fee and before the Day the Grantor is attainted of Felony and executed yet the Grantee shall have Fee for the Condition is become impossible to be performed by the act of the Grantor But if a Jointenant makes a Lease for five yeares upon Condition that if the Lessee does such an Act he shall have it for twenty years and before the day the Lessor dies now the Condition is void by the Surviver If a man grants a Rent Charge to begin at a day to come and before the day the Grantor is attainted of Felony yet the charge is good If a Remainder be limited to the right Heirs of A. who hath a Daughter and dies who enters and after a Son is born and attainted yet the Remainder shall not be devested out of the Daughter The Son endowes his Wife Ex Assensu Patris the Son is attainted of Felony it seems that the Wife should not retain her Dower for 't is the Dower of the Son for she claimes it from the Son and if she brings a writ of Dower of it Ne unques accouple in loyall Matrimony is a good Plea and if there had been a disseisin of it a Collateral Warranty shall be no bar to the Wife for she pretends no Title to it but by the death of her Husband and then the Warranty descends before her Title for if it descends after her Title it shall be a good bar And if she after her Dower so assigned be attainted of Felony and after hath her Charter of pardon for her life and after the Husband dies she shall retain her Dower for her Interest in it commenced after her Pardon And yet by her Attainder she forfeited all her Inheritance Free hold and Chattles Real If an Attainted person be enfeoffed to the use of another the possession cannot vest in the other but must escheat but he which is Attainted may be an Atturny Grandfather Father and Son the Father is Attainted of Treason and dies and after the Grandfather dies seised of Land the Lord of whom the Land is holden shall have it by Escheat and not the King For the Father had it not at the time of Attainder And being that the Grandfather dyed without Heir the Land shall Escheat So it is if the Father be Attainted of Treason and the Grandfather dies leaving the Father The Issue in tail is Attainted of Felony and is pardoned and his Father dies and a Stranger having cause of Action against whom he shall bring his Action is the Question Some say that the Donor hath the Free-hold in Law as if Tenant in tail dies leaving his Wife Enseint Others say there is none against whom the Action may be brought as if Tenant for Life grants over his Estate to B. who dies now before Entry there is none against whom the Action may be brought Tenant in tail makes a Feoffment within Age and is Attainted of Felony his Issue shall not enter for he is disabled in blood to take advantage of the Infancy because the Infant had no Heir A. Covenants upon a Marriage to stand seised to the Vse of another and before the Marriage the Covenantee is Attainted of Felony yet upon the Marriage the Vse will rise as a Lease for life with a Condition of Accruer if the Lessor be Attainted yet the Estate shall enlarge Tenant is tail is disseised and releaseth to the Disseisor with Warranty and then is Attainted of Felony and hath a Pardon and dies this is a Discontinuance for if he had purchased Land after his Pardon it should descend to his Heir then the Warranty being in Esse at the time of his death there is no Impediment but that it should descend But if Tenant in tail who hath a Warranty annexed to his Estate be Attainted of Felony and Executed his Issue shall not Inherit the Voucher by reason of the Warranty although he hath the Land for the Warranty is our of the Statute de Donis c. which speaks of Lands and Tenements But some think that by the Equity of the Statute it is preserved as well as Charters 21 H. 6. 2. p. Markham 9 H. 6. 60. Cott. p. Charters Tenant in tail makes a Lease not warranted by the Statute and dies the Issue accepts the Rent and is Attainted of Treason if the King shall avoid it Quaere If the Grandfather be Tenant in tail and the Father is Attainted of Treason and Executed yet the Son shall Inherit as Heir to the Grandfather If A. commits Felony and the Lord grants his Seignory and after A. makes a Feoffment upon Condition and is Attainted and hath a Charter of Pardon and after re-enters for breach of the Condition and dies If an Occupant shall have the Land the Issue or the Lord is the Question Atturnment TEnant in tail
the first case is avoided for the freehold was discharged The Father disseises the Son and grantes a Rent Charge in fee and then makes a Lease for years the Son confirms the Lease the Father dies the Rent is extinct So if a man grants a Rent Charge in Fee and makes a Lease for years and grants a Reversion to the King or to the Grantee the Rent is gone If there be two Disseisors and the one grants a Rent Charge the Disseisee releaseth to the other and his heirs he shall hold it discharged for he claims meerly from the Disseisee But if one hath two Sons by divers venters and dies and before entry the Eldest grants a Rent Charge and dies without Issue the youngest hath the Land from his Father yet he shall hold it charged for the eldest hath such an estate as he might charge for if the eldest had died without Issue and the Land had gone to the Unkle and from the Unkle to the Father though the Father cannot be Heir to the Son yet being the Land was charged he shall hold it charged so in the other case Quaere for there is a Mesne descent Tenant for life the Remainder in Fee makes a gift in tail with a Remainder in Fee he in the first Remainder releases all his Right to the Donee in tail not saying to his Heirs and after he grants a Rent Charge to a Stranger out of the Remainder in Fee and dies the Donee dies without Issue the Heir of him in Remainder enters if he shall hold it charged For if he be remitted to his ancient Right then the Land is discharged against him And some think the Release could not give the Right in Fee which the Releasor had to the Releasee himself for then in a manner he might Release to himself and if the Release inures but as a Confirmation then without question the Heir shall be remitted and shall hold it discharged but if the Remainder had been appointed in tail to him who had it before in fee the Remainder over in fee then the Release ought to inure to the first Estate in tail and also to the Fee and then if the last fee be fortified the mesne Remainder is established and so the Release inures to himself The Son makes a Lease to the Father for life who makes a Lease for life to A. the Remainder in fee simple to the Son the Son grants a Rent Charge out of the Remainder and after Releases to A. and his Heirs all his Right in the Land the Father and A. die if his Issue shall hold it charged first it is cleer that the Right Fee is divested and a tortious Fee setled in the Son all at one Instant as if Tenant in tail makes a Lease for life the Inheritance of the estate in tail is devested and a fee simple vested all at one moment So if the Husband makes a Lease for life of the Wives Land the fee which the Husband had in right of his Wife is devested and a new foe in himself in his own right vested at the same time So in the first case then when it is granted out of the Reversion it is all one as if it had been granted out of the Remainder because a Reversion and Remainder agree in substance viz. Terra revertens then when the Son released unto A. and his Heirs all his Right that shall not inure as an Entry and Feoffment for A. was in by Title without Disseisin then it does not give to him the Remainder as if he had Released to him all his estate in the Land or as if he had released all his Right Habendum the Land in fee for there the fee passes but here he hath both the Right and the Estate and then a Release of the Right does not reach the Estate Others are of opinion that the Right in fee cannot drown in the Estate for life and in the Remainder it cannot merge for then in truth he releases to himself But if a Fem Disseisoress make a Lease for life and after marries with the Disseisee who Releases to the Tenant for life in Fee the Fee will Merge in auter droit for the benefit of the Estate in Fee in Reversion then if the Release do not perfect the Remainder if the Grant of the Rent which is an Assent to the Remainder does so inseperably unite the Remainder the Rent and the Right so that the Right shall be drowned in the Estate for the preservation of the Rent and some think it shall not for if a Disseisee takes an Estate in Fee from him who hath the Land by descent he agrees unto it and yet if he dies seised his Heir shall be remitted and so the Rent charge avoided But others think that in as much as by the grant of the Rent charge he hath agreed to the Remainder and so to the Livery he cannot now enter upon the Tenant for life and then the Release gives the Remainder and so the Land continues charged Claim IF a Reversion be granted upon Condition which is broke the Reversion shall be adjudged in the Lessor without Claim for the Grantee was privy to the Condition as if a Condition be annext to the Feofment that if the Feoffee doth not perform such an act that then he shall have it but for life if he does not perform it the Estate in Fee is presently vested in the Feoffor without Claim for he was privy to the Condition But the Lord shall not have a Reversion granted to his Villein or aliened in Mortmain or to his Mother who consents to a Ravisher without claim for there is no Privity But in these cases if the particulartenant hath an Action of Wast brought against him by the Lord or his Son perhaps the using of the Action will countervail a Claim And note that he ought to come upon the Land and make a Claim and he shall not be punish'd for it no more than the Lessor who comes upon the Land to see if Waste be committed for it is a Condition in Law annex'd to all the Cases The Heir makes a Feofment upon Condition the Mother recovers Dower the Condition is broke Quaere what course he must take to recover the Reversion for if the Mother recovers her Dower against an Abator the Heir shall not gain the Reversion by Claim And if Tenant for years be outed and the Disseisor dies seised and the Terinor enters many are of opinion that the Disseisee shall not have the Fee by Claim If there be a Disseisor of twenty Acres and the Disseisee enters into one saying nothing he may have an Assise for the rest for the Possession shall not be devested by the construction of the Law without a particular Claim of the party Capacity LAnd is given by Deed to A. and a Dean his Successors and Livery is made to A. in the name of both the Dean takes nothing for they take in several Capacities
and in common and not jointly But if the Discontinuee enfeoffs the Issue in tail within age and another and makes Livery to the Infant in the name of both though the Infant be remitted for a moity yet the other moity vests in the other and they are Tenants in common for their Capacities are not several but they take severally by the operation of the Law Cessavit IF the Tenant ceases for twenty years a Cessavit cannot be maintained but for the two last years before the Writ And therefore if the Tenant ceases for two years and marries and the Lord recovers in a Cessavit and the Tenant dies the Wife shall be endowed against the Lord for the Cessavit cannot be maintained for the Cesser before the coverture and so the Title of Action shall not have Relation c. but is grounded upon the Cesser two yeares before the Writ purchased and part of it was during the Coverture and then the Cesser of the Husband during the Coverture shall not prejudice the Wife of her Dower But Quaere if the case be not â—alsly put for it should rather have been that the Baron ceases one year before the Coverture and another year after and then the Cessavit is brought Cessante Causa c. THe Seignoress seises the Body and Land of the Tenant and after marries the Villain ingross of the heir and they commit wast the Heir brings an Action of Wast 't is cleer that his body is out of Ward and being that the Land is in Ward because an Infant cannot perform Knight Service and so the cause is executory and in consideration that the Signory remains and now the Signory during the Coverture by the intermarriage with the Villain is determined in the Tenancy and so the Freehold and Inheritance of the Seignory is merged in the Tenancy by Act in Law notwithstanding that the possession of the Seignory is suspended by reason of the chattle in the Tenancy viz. the Wardship of the Land because that the Husband shall be Tenant by the Curtesy and may be granted over notwithstanding the suspension by reason of the Chattle in the Tenancy by the same reason it shall be a Release in Law to the Lord of the Villein by Act in Law and therefore the land shal be out of Ward for Cessante c. If the Lord of a Villain gives Land in ancient Demesne to the Villain and afterward the Lord reverses the Fine by disceit the Manumission is gone for the conveyance by the Fine which was the cause of the Manumission being vacated the Effect falls to the ground Common v. Apporcionment Condition A Having two Sons makes a Gift in tail to the Eldest the Remainder in see to the Youngest on condition that the Eldest shall not make a Feoffment with warranty to the intent to bar him in Remainder and if he does that then the yongest and his Heirs shall enter the Eldest makes a Feoffment with Warranty the Father dies and the Eldest dies without Issue the yongest may enter for the entry given to the youngest is void and then the Heirs of the Feoffor are to enter then the Father having cause to enter and he being dead the Condition is in suspence in the Eldest and revived by his death v. 41. E. 3. 21. and given to the youngest for the Condition was not extinguished by the Feoffment and the Warranty does not bind Titles of Entry But if the Feofment had been after the death of the Father then the Condition had been extinct If I am Lessee for the life of C. and grant my estate to D. upon Condition that if D. dies living C. that it shall be lawful for me to re-enter Quaere if this Condition be sufficient for me to enter upon an Occupant The Mesne grants the Mesnalty upon Condition that if the Grantee pays c by such a day that then he shall have Fee before the day the Grantor to whom the money was to be paid is attainted yet the Grantee may perform the Condition and enjoy the Fee A Lease for life is made upon Condition that if the Lessor grants the Reversion the Lessee shall have it in Fee The Lessor grants the Reversion by Fine to one for life the Grantee shall have it for life and the Lessee shall have it after the death of the Grantee and not before But if the Condition had been that if the Lessee pays twenty pounds c. there he shall devest the possession out of the Grantee Note the diversity If the Husband having a Lease for twenty yeares in right of his Wife grants two years upon Condition that the Grantee shall not grant over his term and if he does that he his Executors and Assigns may re-enter the Husband dies the Lessee grants over his term the Executors of the Husband cannot enter for it is a Condition annext to the Reversion and if they do enter they defeat the Wives Reversion The Eldest Son cannot enter where the Reversion descends to the youngest Son by Borough English or speciall tail Nor the Heir on the part of the Father where the Land goes to the Heir on the part of the Mother nor the Executor of one Jointenant where the Testator made a Lease upon such a Condition and died for then he should devest the Reversion out of the other which cannot be And in the principall case the Wife cannot enter for she is not privy to the Condition neither doth she claim under the Estate of the Husband As if one Jointenant grants his part for yeares upon such a Condition the Survivor cannot take advantage of it But if the Husband had granted over all the years upon such a Condition or the Father had made Feofment of the Land in Borough English he should enter for he claims by the Father Some think the Condition is extinct as if a man makes a Lease for years upon Condition ut supra and dies having a Son and a Daughter by one Venter and a Son by another the Eldest takes the Rent and dies now the Sister shall have the Reversion and the Condition is gone for she is not Heir And a Rent is incident to a Reversion and passes by the Grant of it but so doth not a Condition A Feoffment is made upon Condition to re-infeoffe the Feoffee charges the Land the Grantee brings a Writ of Annuity and Recovers the Feoffor enters 44 E. 3. 9. If A. be bound to pay ten pound to B. and he releases ten pound which he ought him yet this is no performance for there ought to be a payment in Fact And therefore if one be bound to Release a Rent Charge which he hath out of the Mannor of D. and he purchases an Acre now the Rent is extinct and yet the Condition is not performed But If I am bound to enfranchise my Villaine and I bring an Action against him the Condition is performed So if I am bound to discharge an Obligation
in which I am bound to A. if I purchase the Mannor to which A. is a Villein regardant the Condition is discharged for the word Discharge refers to all manner of Discharges If I am Infeoffed upon Condition that I shall not Alien to A. and I suffer him to recover it Feintly or if I cease so that he being my Lord recovers in a Cessavit or if I acknowledge my self to be his Villein or if I make a Feoffment with Warranty so that that Acre is recovered by him in Value yet the Condition is not broke for it extends only to Alienations in Fact If I make a Gift in tail upon Condition that the Donee shall not suffer a Feint Recovery if it be not to the benefit of his Issue and after in a Feint Writ he vouches and a Recovery is had against him and he recovers in Value and hath Execution and that is to the just value onely the Condition is not broke But if the Donor had been voucht it is cleer be should not have entred for he shall not say that the Recovery was Feint when he was voucht and made a party to the breach of the Condition and he cannot enter into Warranty saving the Condition which is not broke for it is but a possibility Land is given in tail to the Heires Males of the body of the Donee upon condition if he dies without Heirs Females of his body that the Donor shall re-enter the Condition is void for he cannot have Heirs Females so long as he hath Issue Male. A Lease for years is made upon condition that the Lessee shall not Alien without the consent of the Lessor he gives him leave to grant over his Estate upon Condition and so he does and enters for the Condition broke he may after grant it over without his consent for the Condition is performed 32 H. 6. 10. a. A Rent charge is granted upon Condition the Grantor makes a Feofment of the Land the Condition is broke the Rent is arrear if the condition be extinguisht by the Feofment being the Feoffor cannot have it in the same manner as he might when the Grant was made But if the Grant had been upon Condition which if not performed to cease the Feoffee shall have Benefit of it If a Feoffment be made upon Condition that the Feoffee shall make a gift in Frankmarriage with the Cosen of the Feoffor this seems to be a void Condition Quaere if he must not make an estate for life So if it had been to make such a Gift to a Religious person If a Feoffment be made upon Condition the Feoffee makes a Lease for life and dies and the Reversion dessends to the Feoffor Quaere if the Condition be extinct The Mortgagee enfeoffs the Heir of the Mortgagor in Mortgage also to be first paid after the first day the first Mortgager dies the Heir tenders the money to the first Mortgagee at the day and he refuses and he tenders the money to the Heir c. and he refuses Some think the Son may perform the Condition for it is not suspended being a Collateral Condition Vide 21 E. 4. the case of a Corody and the payment ought to be made to the Mortgagee though he hath made a Feoffment of the Land to the Executors and not to the Heir as it shall be and 17 E. 3. 2. is not Law And upon the first refusall the heir is not remitted for he shall not be remitted upon a Title If the Tenant atturns upon Condition which is broke by the Grantee yet the Reversion is not devested for the Assent cannot be conditional for he doth not claim the Reversion from him that atturns neither can it be made conditionall by the Act of a Stranger to the grant for if Tenant in tail makes a Lease for years rendring a Rent and dies and the Issue accepts the Rent upon Condition that it shall not prejudice his Entry to avoid the Lease yet he shall avoid the Lease for the Assent is a thing executed which wil not suffer any Condition performable But if the Condition be precedent to the Assent the Condition is good But a Release of Right may be upon Condition as a Release of the Seignory to the Tenant upon condition So of a Release upon condition from one Jointenant to his Companion for there the thing vested in his person is devested unto which a Condition may be annext But otherwise of an Assent And if the Patron assent to the charge of the person upon Condition that is good because the Assent is an Interest in Law If a Gift in tail be made upon Condition the Donee shall make a Feofment which is done accordingly yet the Issue shall have a Formedon for if the Condition be not performed the Donor could not have entered and when it is not performed yet the Estate of the Issue shall not be defeated If a Lease for life be made with such a Condition yet the Lessor may enter for the forfeiture if the Feofment be made So if the Lease had been made upon Condition that he make a Feoffment all is one If an Infant be infeoffed upon Condition to enfeoffe another which is done accordingly yet the Infant may enter for he hath performed the Condition If two are infeoffed upon Condition to infeoffe A. if one does infeoffe him of the one Moity and the other of the other Moity the Condition is performed for the Intent is fulfilled If a Lease for life be made with a Condition of Accruer if before the day the Lessor be attainted yet upon the performance of the Condition the estate enlargeth If a man hath Land by descent on the part of his mother and makes a Feoffment upon Condition to be performed on his part or the Heirs on the part of his Father and the Father dies so that the Land descends to him the Condition is extinct although he dies without Issue for notwithstanding he had the Land from his Mother yet the Condition goes to the Heirs on the part of his Father being a new thing As if a Feoffment be made upon Condition of Land in Borough English the eldest Son shall not enter for the Condition broken as the Heir male must do where a Condition is descended upon the Heir Female But on the other side if the Son makes a Feoffment to his Mother of Land descended to him from his Father and after the Mother dies and the Son dies without Issue the Heir on the part of his Father must perform the Condition and the Heir on the part of his Mother shall have the Land in the mean time and if the Condition had been broke in the life of the Mother it had been all one and the Heir on the part of the Father should have entred for the Son is not remitted by the Descent The case was after the entry the Son granted a Rent Charge and died without Issue if the Heir on the part of the Father
so long and no longer And the Heir hath the Right of B and so the Disseisee cannot have an Action against B. and by the same reason he cannot have an Action against him that hath his Estate in respect of the first Disseisee So if the Heir in by descent had made a Lease for life to the Disseisee and a Stranger and the Disseisee confirms the Estate of the Stranger there the Disseisee hath no Remedy during his own life though the Heir re-enters Causa qua supra but his Heir shall have Remedy for it was but a conclusion And some say that the confirmation in the first case shall not extend to the Right that was suspended as a Release will do no more than if a man hath a Rent Charge and he and another disseise the Tenant of the Land and he which hath the Land confirms the Estate of his companion the Disseisee re-enters the Rent is revived for as the Rent was not grantable being suspended in the Inheritance no more may the Confirmation extend to it or touch it Two Jointenants for life of two Acres the Land is confirmed to them in Fee of one Acre to the use of one and of the other Acre to the use of the other in fee they are severall Tenants of the Freehold of the severall Acres for the Confirmation is drownd by the Confirmation in Fee to the Vse and the Freehold made according to the Vse as if it had been before the Statute of 27 H. 8. The Parson makes a Lease for twenty years the Ordinary confirms for ten being it is an intire thing it cannot be confirmed in part as a Confirmation to the Disseisor Tamen Quere for the Assent of the Patron cannot be like to that The Husband is Tenant for life the Remainder to the Wife for life a confirmation is made to them in tail how it shall inure Some think that they shall take the Estate by Intireties and not by Moities It may be said that the estate for life to the Husband the remainder to the Wife continues but if not then to the Wife for one Moity and a Moity in the Freehold shall be extinct c. Vide Baron Fem Wast Continuall Claim LAnd is given to Baron Fem and a third person and to the Heirs of the Bodies of the Baron Fem they have Issue the Baron dies Tenant for life aliens a Moity in Fee the Wife makes Continuall Claim the Issue dies without Issue the Wife may enter upon the Heir of the Feoffee who dies within the year after the Continuall Claime Quere It seemes though at the time of the Continuall Claim she had a Right of Entry yet now the Estate is changed and she shall not enter Quaere how Continuall Claim may be made by Tenant in common for the possession pro Indiviso If the Disseisee dies after he hath made Continuall Claim and within the year a Descent is cast the Heir of the Disseisee cannot enter for it gives only a Title for the advantage of the person who durst not enter But if the Descent had been in the Life of the Disseisee then the Heir of the Disseisee may take Advantage of it For a Title of Entry discended If Tenant for life with a Remainder over be disseised and makes Continual Claim dies he in Remainder shall avoid a Descent happening within a year after the Claim for his Interest was reduced Otherwise of a Son in the life of his Father he hath no Interest If two Jointenants are Disseised and one makes Continual Claim and then dies and after a Descent is cast Quere If the Grandfather be a Disseisor and dies seised within a year after Continual Claim made and after the year and before Entry the Father dies and the Son enters the Disseisee may enter upon him Quaere for some think the contrary Covenant videVse Damages LAnd is given to Baron Fem in Fee the Husband dies the Wife waives the possession and recovers Dower against the Heir she shall have Damages for when she refused the Husband shall be said to die seised and so within the Compass of the Statute If the Husband makes a Feofment and takes an Estate to himself and another in Fee the Husband dies the Wife shall not recover Damages for she recovers her Dower of the Estate which he had before and not of the Estate whereof he died seised So if he had retaken in Fee upon Condition c. For the Law says she is endowable of the First Estate and not under the Condition Daughter A Man makes a Lease for years and dies having a Daughter his Wife Enseint with a Son the Daughter confirms the Estate of the Lessee to hold to him for life with Warranty The Son is born and dies without Issue the Daughter enters upon the Lessee and upon a Re-entry she brings an Assize some think it maintainable But if the Son had Entred upon him an Ejectione Firmae lies A. hath two Daughters the Eldest disseises the Father the Father dies she hath Issue and dies the other Enters claiming her part of the Moity and she brings her Assize that was a Moot case If Tenant in tail discontinues and dies having a Daughter his Wife Enseint with a Son The Daughter Recovers in a Formedon and dies before Execution without Issue the Son born after shall not enter nor sue Execution If the Daughter recovers in value by reason of a Warranty of the Ancestor before the Birth of the Son the Son when he is born shall enter upon Her for he recovers as Heir and it comes in Lieu and so shall be in the same Degree as the first Land was A man makes a Lease for years rendring a Rent upon Condition and dies leaving a Son and a Daughter by one Venter and a Son by another the Eldest Son gets the Rent and dies the Daughter shall have the Reversion but the Condition is gone for she is not Heir If a Daughter enters by purchase or for Alienation in Mortmain she shall retaine against a Son born after A man hath a Park by Prescription in Land in Borough English and dies having two Daughters the Question is which of them shall have it Some think the youngest for a Park is nothing but Land inclosed and a Liberty in Land shall ensue the nature of the Land also a Park may be by Prescription 18 H. 6. 21. a. 1. H. 4. 4. One may have the Liberty of a Park without Allowance Then if Prescription can make a Park there is no doubt but that it may be of the nature of Borough English for the Comencement of it is not known 10 H. 7. 6. per Keble Vide Parceners Deed. A. makes a Feoffment of the Mannor of D. to which an Advowson is appendant by Deed and makes a Letter of Atturny to make Livery the Advowson shall not passe by the delivery of the Deed before Livery be made If the Mannor of D.
be given by Deed with all the Woods and within the Deep there is a Letter of Atturny to make Livery if Livery be not made yet his Executors shall have the Wood. But if Livery be made then the Wood shall go along with the Land If A. requires another orgives him authority without Deed to write seal and deliver a Grant of a Rent Charge out of the Land of the Grantor in the name of the Grantor which is done the Grant is good for if I make a Grant and command one to deliver it it will be good without Deed. So if I by Paroll deliver it him as an Escrowle to be delivered as my Deed upon Condition to be performed that is good But an Authority to make Livery must be by Deed. Neither shall a Woman aver the Assent of the Father for Dower Ex Assensu patris without Deed. Neither can the Lessor Authorize the Lessee to commit Wast without Deed. If an Infant delivers a Deed which bares date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date no more than a Fem Covert otherwise every Infant may be deluded Debt LEssee for forty years makes a Lease for ten years rendring a Rent the first Lessee surrenders the Lessor brings Debt against the second Lessee Quaere A man shall not have Debt for Releif or Escuage granted unto him for it is mixt in the Realty but his Executors shall but he must distrein So the Lord shall not have an Action of Debt for Ayd pur file marier or pur fair fits Chivalier But if he dies before it be levied the Tenant shall be discharged of it An Action of Debt shall not be brought against the Heir and his Brother in Borough English where the Eldest hath nothing by descent as it shall be against the Heirs in Gavel Kind for there he may have a joint judgement against all and not against the Eldest in the other case for he hath nothing upon which it may be levied Quod nota An Action of Debt brought by Executors shall be in the Detinet only although it be for Arrears of Rent incurred after the death of the Testator So it shall be against a man acccomptable to the Testator A Seignory is granted for years the Rent is Arrear and the Tenant dies the years expire if the Grantee shall have an an Action of Debt against the Heir because it was due in the time of his Father and also some was due in his own time or if he shall have an Action of Debt against the Executors for that which was due in the Testators life time or is without Remedy Some say that the Heir shall not be charged in Debt if the Father die not oblige himself and his Heirs expressely and the Executors shall not be charged for they were not chargeable by the death of the Testator for at that time the Grantee could not have an Action of Debt but his remedy was by distresse for then the years were not expired and so no remedy 9 H. 7. 17. a. Co. 4. 49. An Annuity is granted for the life of A. the Grantee releases all Actions of Annuity he shall not have an Action of Debt for the Arrerages although that A. dies afterwards Devastavit vide Executor Devise A Woman hath Issue a Son and by another Husband hath Issue another Son the second Husband devises Land to the Wife for life the Remainder to the next of the blood of the Wife The youngest Son shall take in Remainder although it be true that one is not nearer of blood to the Mother than the other and the Eldest is of the most worthy blood yet he is not neerest and so it is uncertain who should take according to the letter of the Will yet the Intent which is always to be considered in Wills shall be construed in Favour of the youngest because he was Issue of the Devisor Pasc 5. Eliz. A great Case was argued in the Exchequer There were three Brothers the second brother purchased Land and devised it to his Son in tail and if he died without Issue that then it should remain to the next of the Kindred of the Lineage of the Father the Eldest Son was then dead having a Son it was adjudged that the Son of the Eldest should have the Land for he is next of the Lineage For Lineage shall be taken in a Lineall descent which is the most worthy Line Dy. 333. pl. 29. A Devise to the next of Blood the Son of the Eldest Brother shall have it before the younger Brother If Land be devised upon Condition or rendring a Rent that is void for it cannot be good in either case except the Reservor might take advantage of it and the Heir cannot have that which his Ancestor could not And if a man devise Land with Warranty that is void because the Father was not bound But to some there seems a Diversity for in the last case there is a Charge to the Heir and in the first it is for his advantage If the Lord devises Land to his Villein this is an Infranchisment against the Heir and yet he was the Villein of the Heir when the Devise took Effect A man having three Daughters devises to themâ— hundred pound a piece for their marriage Portions and if any of them die before their Marriage then the other should have her Portion by Survivor one dies in the life of the Father the other shall have three hundred pound after the death of the Father and yet nothing survived for she had nothing in possession yet they shall take it by the intent of the Devisor for when he says that if any of them die before their Marriage that the other shall have her Portion this makes it in nature of a Remainder and then though the first Devisee does die in the life of the Testator yet he in Remainder shall take the Estate per Manwood Dy. 127. P. 59. As a Devise to a Monk the Remainder to another the Remainder is good A. Devises Land upon Condition and if the Condition be broke that his Executors shall sell the Land the Devise as to the Executors is void for the Heir must enter for the Condition broken and then he shall hold it discharged of all Conditions A. Devises twenty pound to B. when he arrives at the age of six and twenty years and if he dies before he Devises it to C. B. releases to the Executors of A. before he attain◠〈◊〉 age of six and twenty years if it shall be a Bar Quaere If A. Devises twenty pound yearly for twenty years the Devisee hath no Remedy for his not Isâ—uing out of any Land for he can not take it as a Legacy and an Anâ—â—â—â—y does not lie against Executors for the Testator was never charged A Jointure cannot be made by Devise for Land was not then Devisable and the Wife
was discovert when the Devise took effect If Land be Devised to an Alien and he is made a Denizen before the Devisor dies he shall take by the Devise for all takes effect after the death of the Devisor Disablement IF I grant an Annuity upon Condition that the Grantee shall promote me to a Benefice within seven years within which time I marry and my Wife dies within the Term yet the Grantee is discharged for I had once Disabled my self to accept of the Benefice and he had the Liberty to have tendered it at that time and I being then Disabled to receive it it countervails a Tâ—â—â—â—â—r and Refusall So if I am bound to marry a woman by such a day and she marries another and the Husband dies before the day yet I am discharged of my Obligation But if he who was to be promoted or married had been a Stranger to the Obligations it had been otherwise If I am bound to enfeoffe the Obligee before a day and before the day he takes a Lease for yeares of the same Land which expire before the day yet I am discharged but it had bin otherwise if there had been no day limited for there it is not to be done before request A Feoffment is made to Re-infeoffe the Feoffee grants a Rent Charge the Grantee brings a Writ of Annuity and recovers if this be a Disablement to Re-infeoffe Quaere Disagreement A Lease is made to Baron Fem for the life of the Baron the Remainder to the Right Heirs of the Husband the Husband dies the Wife cannot Disagree for the Estate is determined But if the Estare had been made to them by a Disseisor she might disagree to save herself from Damages If Land be given to Baron Fem in Fee and the Baron makes a Feoffment and an Ancestor collaterall of the Wife Releases with Warranty and dies the Husband dies the Wife cannot disagree and claim her Dower for her Estate was bound and her Right determined by the Warranty If the Husband be remitted to an Estate the Wife may disagree and claim her Dower An Atturnment is good although he that Atturned doth after disagree Vide Dower Baron Fem. Discharge IF the Disseisee enters upon the Heir of the Disseisor end grants a Rent Charge and dies the Issue shall hold it discharged for he is remitted to his ancient Right So if the Heir of the Disseisee enters upon the Disseisor and grants a Rent Charge and the Disseisee dies But if the Son disseises the Father and A. and the Father dies he shall hold it charged for he is not remitted If the Father disseiseth the Grandfather and grants a Rent Charge and dies the Son shall hold it discharged for he claims from the Grandfather Lord Mesne and Tenant the Tenant aliens in Mortmain the Lord enters and grants a Rent Charge and after his Title is come viz. the year is past and the Mesne hath not entred the Lord shall hold it discharged and his Issue also for he shall not be remitted for a Title as he shall be for a Right accrued If the Father disseises the Grandfather and dies and the Son enters and grants a Rent Charge and the Grandfather dies he shall hold it discharged although he was of full age at the time of the Grant As if Tenant in tail infeoffes his Issue within Age who grants a Rent Charge at full age and then the Tenant in tail dies the Issue shall hold it discharged If the Disseisor grants a Rent Charge to the Disseisee who grants it over and after enters he shall hold it discharged So if Tenant Pur auter vye grants a Rent Charge and the Reversion descends upon him and cesty que vye dies he shall hold it discharged If a Stranger disseises the Father and grants a Rent Charge and infeoffes the Son and the Father dies he shall hold it discharged Land is given to A. and B. for their lives the Remainder to the Right Heirs of him who survives B. grants a Rent Charge in Fee A. dies if the Heir of B. shall hold it discharged Quaere If it had been given to them Quam diu simul vixerint and to the Heirs of him who first dies the Heir shall not take the Land by descent but by purchase A. having a Wife makes a Feoffment upon Condition and dies the Wife is endowed by the Feoffee and then grants her Estate to the Feoffee reserving a Rent by Indenture the Heir enters for the Condition broken he shall hold it discharged of the Rent Note her Title to the Land was Paramount to the Condition but Puisne to the Rent If a Dean hath a Rent Charge in Fee and the Tenant aliens the Land to the Dean in Fee the Lord enters for the Alienation in Mortmaine he shall hold it discharged of the Rent for when he entred for the Alienation in Mortmain he did not avoid the Livery but affirm'd it by his Entry So if the Dean before the Entry had entred into a Statute the Lord should have holden it discharged of the Execution But if Tenant for life aliens in Fee to him that hath a Rent Charge issuing out of the Land and the Lessor enters for the forfeiture he shall not hold it discharged for the Lessor hath the same Feesimple he had before the making the Lease and has his own Estate and not the Estate which the Lessee gave to the Feoffee Many think the contrary in the first case for his Estate in the Land was always defeasable Vide Charge Rent Execution Discent A Disseisor infeoffes his Wives Father who dies so that the Land descends upon the Wife if the Disseisee may enter Quaere The Husband surrenders the Freehold of his Wife to him in Reversion who dies seised if the Wife may enter after the death of her Husband for there seems to be a discent If a Gift in tail or Lcase for life be made rendring a Rent with a Re-entry for default of payment the Lessor hath cause of Entry and the Estate in tail expire or Lessee for life dies after a Disseisin or Descent yet the Lessor c. may enter for the Land was recontinuable at all times And if Tenant for years with a Condition be outed after the term and a Discent cast the Lessor shall enter for the Condition broken Lessee for years the Remainder in tail he in Remainder grants in Fee the Lessee at turns the years expire the Grantee enters and dies seised Tenant in tail dies the Issue may enter for the Grant was but for the life of Tenant in tail and then he died not seised in Fee and if the dying seised had been after the death of Tenant in tail If it will take away the Entry Quaere But if the Issue of the Issue of the Grantee had entred and died seised the Entry had been taken away If Tenant in tail infeoffs his Donor who dies seised the discent will take away the Entry
of the Issue Quaere If there be two Sons and the youngest hath two Daughters the Grandfather seised of two Acres at Common Law and twenty in Borough English gives the two Acres with the youngest in Frankmarriage the youngest Son dies the Grandfather dies siesed the twenty Acres shall descend equally to the two Daughters and the two Acres shall not be put in Hotch potch for the Custom as well as the descent makes the Title The Disseisor dies without Heir his Wife enseint the Lord enters a Son is born the Disseisee enters upon the Lord. If the Entry had been before the Birth it had been Lawfull and he Remitted If a Stranger abates the Disseisor having Issue or if after abatement a Son had been born the Disseisee could not have entred for the Abator may say that the Land descended to the Issue whose Estate he has If the Tenant makes a Feoffment Pending the Praecipe against him the Plaintiffe Recovers then the Feoffee dies seised the Plaintiffe cannot enter upon the Heir for the dying seised was after the Judgement Tanta mount as if the Feofment and Discent had been both after Judgement and then it had been cleer that the Entry had been taken away for the Discent is the Title and not the Feoffment But if the Discent had been hanging the Writ that would not have taken away the Entry But if a Recovery be had against Tenant for life and he dies and he in Remainder Enters and dies seised that shall not take away the entry of the Recoveror for all the Estate is recovered and he in Remainder is as privy as if the Action had been brought against him immediately so of him in Reversion Br. Ent. Cong 116. The King being seised A. intrudes the King Grants it away A. continues in possession and dies seised this Discent will not take away the Entry of the Grantee for then he were without remedy as if Land be devised and a Stranger Abates and dies that shall not toll the Entry of the Devisee Discontinuance IF Land be given to two and to the Heirs of the body of one and he which hath the Estate in tail makes a Feoffment and both die this is no Discontinuance for any part for he was not seised of the Estate in tail at the time of the Feoffment If Tenant in tail makes a Lease for life the Remainder for life and after Releases to him in the Remainder and his Heirs this is a Discontinuance If the first Tenant for life dies in the life of Tenant in tail If Tenant in tail makes a Gift in tail to A. and after Releaseth to him in Fee and dies and A. dies without Issue the Issue in tail may enter upon the collaterall Heir of A. for the Fee was not Executed in the life of Tenant in tail though it passed out of him Quaere of all these cases If the Grandfather be Tenant in tail and makes a Gift to Baron Fem in tail the Husband dies without Issue the Grandfather dies the Father Releases to the Wife being Tenant after possibility and to her Heirs and dies the Wife dies the Issue cannot enter upon the Heir of the Wife for though it be no Discontinuance yet when the Wife came to the Fee simple the Fee was Executed and then she died seised in Fee and the Discent takes away the Entry But if the Wife had been Tenant in tail and then she had died without Issue it had been otherwise for then she had not died seised but of an Estate tail in possession and a Fee in Reversion and that will not take away an Entry If Tenant in tail infeoffes the Wife of the Donor that is a Discontinuance If Tenant in tail infeoffes the Donor and a Stranger that is a Discontinuance of all for the benefit of the Stranger If Tenant in tail of a Rent grant that in Fee that is no Discontinuance for the Grant endures no longer than for his own life If Tenant in tail makes a Lease for the life of the Lessee and then disseises him and makes a Feofment in Fee the Lessee dies and Tenant in tail dies that is no Discontinuance for the Fee was not Executed by lawfull means So if Tenant in tail makes a Lease for life and grants the Reversion the Grantee disseises Tenant for life Tenant for life and Tenant in tail die this is no Discontinuance for the Fee was not executed according to the Grant But if Tenant in tail makes a Lease for her own life and disseises Tenant for life and makes a Feofment that is no Discontinuance for by the Disseisin he was seised in Fee and the Fee was devested out of the Donor and then he was not Tenant in tail The first case seems cleerer if Tenant in tail dies living Tenant for life If Tenant in tail makes a Lease for the life of the Lessee who is disseised and Tenant in tail Releases to the Disseisor without Warranty Tenant for life and Tenant in tail die this is a Discontinuance in Fee for the Disseisor had the same Fee executed in the life of Tenant in tail which was first made as if he had after Released to Tenant for life which would have countervailed an Entry and Feofment A. makes a Gift in tail to B. who makes a Gift in tail to C. who makes a Feoffment and dies without Issue Nothing made a Discontinuance to the Issue of B. but the Livery of B. for by that the Reversion of the Donor was discontinued But when C. died without Issue that Livery is determined and the Discontinuance purged and the Feofment of C. being a Stranger to the first in tail cannot be a Discontinuance especially when there was but a Right of the Intall discontinued by the Feofment of B. and a Right cannot be discontinued If Tenant in tail be disseised and Releases to the Disseisor with Warranty and is attainted of Felony and hath his pardon and dies that is a Discontinuance for if he had purchased the Land after his pardon it should have gone to his Issue which proves that the blood between him and his Issue is not corrupt as it is between him and his Ancestor then seeing the Warranty was in being at the time of his death there is no Impediment but that it should descend Disseisor LORD and Tenant of twelve Acres by twelve pence the Tenant makes a Lease of one Acre for years the Lessee enfeoffs the Lord he may avow for eleven pence for though he is a Disseisor by the Statute yet to another intent he is in by Feoffment for if Lessee for years infeoffs two a Release to one will inure to both If there be two Disseisors of a house to which Estovers are appendant and a Release is made to one the Estovers Remain for part for the Release doth not countervail an Entry and Feofment If the Lord procures one to disseise the Tenant and then the Disseisor Ceaseth and the Lord Recovers
he shall retain against the Disseisee for the procurement does not make him a Disseisor 50 E. 3. 2. v. Lit. in Remit cont If the Issue in tail procure one to Disseise the Disseisor of his Faâ—ther whose Heir is in by descent against whom the Heir recovers the Issue shall retain it If the Disseisor makes a Feoffment and marries with the Disseisee he may enter in his Wives Right After a Dissent if the possession comes to the Disseisoâ— the Disseisee may enter for the Action remains to him after the descent If one Disseises Tenant for life to the use of him in Reversion and he agrees if he shall have the new Fee or the ancient for now he is a Disseisor ab initio If he had been a Disseisor immediately he had gained but a Freehold by Tort but now he Agrees to that which another hath and that is a Fee If one Jointenant makes a Lease for years of his part a Stranger enters claiming the Moity of the other who waives the possession that is a Disseisin to him though the Termer continues in possession for they were Tenants in Common Otherwise if the Termor had waived the possession and the other had continued in for the Reversioner cannot be out of possession when his joint companion held in Divorce A Reversion is granted to Baron Fem and to a single man and Woman in Fee the single persons marry and the Tenant Atturns then the single man and woman are divorced the Baron Fem shall have but a third part Land is given to I. and A. his Wife and to another Baron Fem in Fee they are disseised and I. releases to the Disseisor and then I. and A. are divorced for cause which hath relation A. and the Baron Fem bring an Assise leaving out I. Some think it is maintainable for when I. and A. are divorced yet the other Baron Fem shall hold the Moity to them for being the purchase took effect and vested by the Livery and at that time the Baron Fem not being divorced took a Moity which remains still A Lease for life is made to a Fem sole she marries the Lessor grants the Reversion the Husband atturns and after they are divorced yet the Wife cannot avoid the Atturnment A woman is divorced upon a surmise made by the Husband of a Precontract upon her part the Wife being seised of Land makes her Will and devises it away an Appeal then depending by the Husband to defeat the Divorce Quaere if the Appeal be not void being sued by the Baron for he is not the party grieved for he was the first Agent in the Divorce and therefore it ought to have ben sued by the Wife and so the Devise stands good 2 R. 2. Quare Impedit 143. Dy. 140. P. 46.4 H. 7. Peckams case 10 H. 7. 12. 24 H. 8. Ravishment 11. 39. E. 3. 33. A man marries an Insidel the Wife commits Adultery and then becomes a Proselite to the Christian Religion Quaere if this Adultery committed before her Conversion be a sufficient cause whereupon the Husband may sue a Divorce Dower LAnd is given to Husband and Wife in speciall tail reserving a Rent the Wife of the Donor brings Dower against the Heir of the Husband for the third part of the Rent A. having a Daughter dies his Wife enseint with a Son the Daughter disclaims the Lord Recovers in right of the Disclaimer a Son is born the Lord dies and the Land descends to his Son the Wife of the Lord brings Dower against him A. grants a Rent Charge in Fee to commence after the death of the Grantee who dies the Wife of the Grantee shall not be endowed and yet the Son takes as Heir But it was not in the Father and it shall not be Assetts in the Heir But if the Rent had been granted upon Condition that if the Grantee or his Heirs die their Issue within age that the Rent should cease until the Issue comes of full age if the Grantee dies his Issue within age his Wife shall be endowed but the Execution shall cease until the heir be of full age As if the Tenant be in Ward to the Lord and the Lord marries and dies possest of the Ward his Wife shall be endowed of the Seignory which was in suspence for the Freehold was in the Husband so in the last case before 24 E. 3. the Wife of the Father brought a Writ of Dower against the Heir within age and Recovered but cessat Executio until c. If the Heir doth Improve the Land the Wife shall recover her Dower of it as it is But if it be by building or other collaterall Improvement 't is otherwise Quaere if the Heir suffers the Houses to decay upon the Land if the Wife shall be endowed according to the value it was in the possession of her Husband or as it is now and shall be allow'd in Damages The Son of the Disseisor endows his Wife Ex assensu patris the Disseisee releaseth to the Disseisor if the Dower shall be avoided The Tenant Ceases for two years and after marries the Lord Recovers in a Cessavit the Tenant dies his wife shall be endowed against the Lord. If a Rent be reserved upon a Lease for life the Wife shall not have dower for he hath not a Fee neither shall the Heir have an Assize of Mortdancestor If a Disseisor grants a Rent Charge and is disseised and a Release is made to the second Disseisor the Wife shall not be endowed for her Dower is Executory If a Woman hath cause to have Dower of one and the same Acre as Wife to A. and B. If she be barr'd as Wife to A. yet she shall have it as Wife tp B. If a Lease be made to Baron Fem for the life of the Husband the Remainder to the Heirs of the Husband who dies the wife shall not have Dower for she cannot disagree to an Estate determined If Land be given to Baron Fem in Fee the Husband makes a Feoffment an Ancestor collateral of the Wife releases With Warranty and dies the Husband dies the Wife cannot disagree and claim her Dower where the Estate was bound and her Right determined by the Warranty If a Villaine purchase â—an Estate in tail the Lord enters and dies his Wife shall not have Dower for being the Law gave unto him his Entry the Law will not give more to him than the Villein might lawfully give which was an Estate for his own life If Tenant in tail the Reversion in the King be disseised the Disseisor dies his Wife shall not recover her Dower no more than if a Discontinuance takes away an Entry If there be two Tenants in Common and one hath a Wife and the Reversion is granted to both of them and he which hath the Wife dies the Wife shall be endowed of a third part of a fourth part if the Reversion passed severally for then the
Reversion and the Fee are Executed for the fourth part A Gift in tail is made rendring during the life of the Donor Socage tenure and after his death Knight service the Wife shall be endowed of the Knights service If a Rent be granted for life and after by another Deed the Grantor releases all his Right in the Rent and if it be behind that the Grantee and his Heirs shall distrain the Wife shall not be endowed for it is still but a Rent Seck and the distress a Penalty 8 H. 4.18 A Disseisor having a Wife makes a Lease for life the Lessee makes a Lease to the Wife for her life the Husband accepts the Deed and agrees to it the Husband dies the Wife disagrees to the Lease the Lessor Enters against whom she brings Dower It is cleer if a Disseisor having a Wife makes a Lease to A. for life who makes a Lease to B. for life and the Disseisee releaseth to B. the Wife of the Disseisor shall be endowed for the Release does not countervail an Entry and Feofment If a Disseisor be Disseised and the Disseisee releaseth to the second Disseisor that takes away the Dower of the first Disseisors Wife But in the first casethe Husband is remitted and no possession in the Wife whereupon a Release may operate and so she may disagree and claim her Dower If an Estate be confirmed in a Rent Seek and if it be behind that it shall be lawfull for him and his Heirs to distrain the Wife shall not have Dower for it is stil but a Rent Seck and the Distresse but a penalty Tenant in tail of a Rent discontinues it with Warranty the Issue having a Wife is barr'd in a Formedon by the Warranty and Assetts yet his Wife shall be endowed for the Grant was void by the death of Tenant in tail and the Issue had possession in Law and might have distrained and though he determined his Election yet it shall not prejudice his Wife If the Husband disagrees to a Remainder the Wife shall not be endowed otherwise to a Dissent If a Rent Charge is granted the Grantee dies the Heir cannot prevent the Wife of her Dower by bringing his Writ of Annuity The Son endows his Wise Ex Assensu Patris the Son is attainted If she shall retain her Dower Some think she shall not for she claims from the Son and Ne unques accouple in loyall Matrimony is a good plea. If Tenant for life surrrenders upon Condition and the Lessor marries and dies the Wife is endowed against the Heir the Lessee enters for the Condition broken the Wife shall not have the Reversion for the Freehold which was the Wives Title is taken away by the Entry If the Grandmother recovers Dower against the Mother she hath taken away all the estate of the Mother for she comes in upon an Eigne Title But otherwise if the Father had been infeoffed So if the Lessor disseiseth his Tenant for life and marries and dies and the Wife is endowed by the Heir the Lessee enters c. And if Lessee for life had died before the Wife had been endowed she shall not be endowed for the Heir was Remitted or if she had been endowed and the Lessee had died the Heir shall out her If the Mother recovers Dower against the Son the Grandmother recovers Dower against the Mother and dies the Son shal enter and not the Mother But if the Dower of the Mother had been by Assignment of the Heir it had been otherwise For he shal be concluded by his own Assignment Quaere For some think the Reversion is not taken away from the Mother in Casu penultimo If a Feoffment be made to A. to the use of B. the Wife of A. shall be endowed A. marries and fells his Land his Wife arrives at her age of nine years the Husband dies she shall be endowed though the Husband had no possession when she was nine years old For if the Husband aliens his Land and after the Wife is attainted and pardoned the Husband dies she shall recover her Dower If a woman Elopes the Husband aliens his Land and after they are Reconciled she shall have her Dower for in these cases the Title of Dower is not consummate until the death of the Husband But if a man marries an Alien and then sells his Land and she is Endenized and the Husband dies she shall not have her Dower If a Tenancy Escheats the wife of the Lord shall not be endowed of the Seignory A woman Intitled to have Dower disseiseth the Tenant and she is disseised by another to whom the Disseisee releaseth she shall not have her Dower for her Dower was suspended in the possession of the Disseisor as well as if it had been in her own possession for the Disseisor is in as the woman was and though her Dower should have been Revived if the Disseisee had entred yet this Release doth not amount to an Entry and Feoffment If Land be given to A. and his Heirs Males as long as he hath Issue Female of his body A. dyes having a Daughter the Wife is endowed and the Daughter dies without Issue the wife loseth her Dower for there is a difference between a Condition in Deed and in Law for if the Issue of Tenant in tail dies without Issue yet his wife shall keep her Dower for it is a Condition in Law And yet if an Estate tail be made upon Condition that if the Donee dies without Issue that it shall be lawful for the Donor to re-enter the Wife of the Donee shall not lose her Dower for the Condition does not take effect untill the estate be determined by the Condition in Law upon which determination she is endowable A. seised in Fee grants a Rent Charge and aliens and takes an Estate in Fee-simple or in tail and dies seised the Wife Recovers in Dower and then she surmises that her Husband died seised and prays a Writ of Enquiry of Damages 14. H. 8. 6. She shall hold it charged for she hath admitted her self dowable of the second Estate A. has a Wife and is seised of four Acres and makes a Feofment of three of the Acres with Warranty and dies the Wife brings her writ of Dower against the Feoffee and he vouches the Heir Now if the Wife may stop the Judgement viz. That she shall not recover immediately against the Heir is the question for then she hath lost her Dower of the fourth Acre as some think she hath because it was her own folly that she did first recover her Dower of that Election IF a Rent be granted in Fee and the Grantee grants it over for yeares the Grantee for years hath no Remedy if it be denied him for he shall not have a writ of Annuity for the Election is given only to the first Grantee and his Heirs and the Election runs only in privity If two Acres are given to A. Habendum the one in Fee and
the other for life and A. grants both over viz. the one in Fee and the other for his own life If the second Feoffee shall have Election If A. had committed wast in both or had made a Feoffment of both the Lessor might have entred into which he had pleased If I give two Acres the one in Fee the other for life and the Donee dies without Heir Quaere if the Lord shall have Election If a Lease be made of two Acres the Remainder of one to A. and of the other to B. and makes no certain description of either He who first enters after the death of Tenant for life shall have the Election If a Lease be made of two Acres Habendum the one in Fee and the other for life reserving a Rent Quaere how the Lord shall avow But his Executor hath no Remedy by the statute of 31 H. 8. If A. grants to another one of his horses the Grantee dies before his Election his Executor shall choose but yet there was no property in the Grantee before Election If two Acres are granted the one in tail and the other in Fee the Heir of the Donee shall make his Election If twenty shillings or a Robe is yearly granted at the Feast of Easter at the day or before the day the Grantee hath Election If it had been by Obligation the Obligor shall have the Election after the day But if one grants to another twenty loads of wood or twenty Oaks yearly at the day or after the Election is in the Grantee for it lies in Prender so that there is a a Difference betwixt a thing in Payment and in Prender 13 E. 4. 4. If a Lease for life be made reserving a Rent or a Robe at the day it is in Election of the Lessee but after in the Lessors A Reversion is granted to one for life and before Atturnment it is granted to him in Fee the Grantee may choose his Estate If an Acre is given Habendum in Fee or in tail the Donee shall choose If one be bound or Covenants to infeoffe B. of the Mannor of D. or S. the Obligor c. hath the Election for he is the first Agent But if I give my black horse or white Horse there the Donee hath the Election for there he is the first Agent But otherwise if the words had been that I should deliver also If I infeoffe A. and B. and warrant the Land to the one or the other there is no Election given to either and therefore void But if one be bound to me to pay to A. or B. there the Obligor hath the Election for he is the first Agent but in the other case it ought first to be demanded A. gives two Acres Habend the one for life the other in Fee reserving a Rent or a Robe and does not distinguish which he shall have for life and which in Fee B. makes a Feoffment of both the Rent is behind A. distrains in one only and makes an Avowry for the Robe in that Acre Quere bien If a Rent be issuing out of two Acres the Tenant grants one to another the Grantee may choose in which he will distrain for all A. disseises B. of twenty Acres in C. B. brings a writ of Entry sur Disseisin in ten Acres and recovers and comes upon the Land and enters into one Acre in the name of all he recovered and thereof presently infeoffs D. who enters into the other nine Acres A. brings an Assize for those nine Acres and it is maintainable for by the entry of B. into one Acre in the name of all he recovered nothing vested in him but that Acre for it was a determination of his Election which nine Acres he would have for it was incertain and then nothing passed by the Feoffment but that one Acre for the Feoffee being a stranger shall not make Election which runs in Privity Emblements A Woman hath Title to have dower of three Acres and after the Heir sows one of the Acres and she hath that Acre assigned to her in dower Quaere if she shal have the Emblements for no folly can be imputed to the Heir for the possession was cast upon him by the Law and when he did sow the Land it was uncertain to him whether ever the wife would recover her dower neither could he guesse which Acre would be assigned her in dower and the Heir shall take advantage of this incertainty As if the Condition be performed by the Mortgagor yet the Mortgagee shall have the Emblements If a man devise that his Executors shall sell his Land and before the sale the Heir sows the Land and then the Executors sell it yet the Heir shall have the Emblements 36 H. 6. 36. If the Heir sows the Land and is disseised before severance and the Disseisor endows the wife of the Father Some think the Heir shall not have the Emblements for she is supposed to be in in the Post by the Disseisor Quaere Entry GRandfather Father and Son The Father disseiseth the Grandfather and dies the Son endows the Mother the Grandfather dies the Son may enter upon the Mother for he hath a new Right descended to him from the Grandfather for the Grandfather might have entred upon the Mother so shall his Heir But if there be Great Grandfather Grandfather Father and Son and the Grandfather disseises the Great Grandfather and the Father dies and the Son endows the wife of the Father and the Great Grandfather dies the Son shall not out the Tenant in Dower for the Great Grandfather could not enter by reason of the descent no more can his Heir If a disseisor makes a Lease for life the Remainder in Fee and the disseisee purchaseth the Remainder and grants it over he cannot enter upon the Lessee for life for then he should defear his own Grant A Feoffment is made upon Condition to re-infeoffe the Feoffee makes a Feoffment to his use If the Feoffor may enter without Request If A. makes a Feoffment reserving a Rent and if it be behind a Re-entry after he releaseth the Rent when he hath Title or Entry he cannot enter after or if he granted the Rent over after his Title of Entry The Eldest Son cannot enter where the Reversion is descended to the youngest by the Custom A Seignory is granted in tail the Tenant aliens in mortmain the Grantee dies within the year without Issue the donor shall enter as well as he in Remainder for there is a Privity of Estate If two Acres descend to A. and a stranger abates into one and A. enters into the other in the name of both that shall not gain the possession of the other But otherwise if he had entred into that Acre wherein the Abatement was in the name of both Tenant for life of a Seignory a Tenancy Escheats a stranger intrudes Tenant for life dies before Entry he in Reversion may enter as upon the Disseisor of his Tenant
if the Issue in tail recovers against the Discontinuee and after is attainted of Felony his Issue shall enter or sue Execution for he is privy in Estate Tenant in tail recovers in value by Voucher of the donor and is attainted of Felony his Issue shall not have Execution If the Son hath the Land of the Father and of another in Execution upon a Statute and the Land descend from the Father to the Son the whole Execution is discharged In Judgement for debt the party shall not have Execution but of that Land only which he had at the time of the Judgement and not at the time of the purchase of the Writ But in debt against the Heir if he aliens hanging the Writ it shall be liable to the Execution although the alienation was before the judgement for the Action was conceived against him in consideration of the land but in the first case it was in respect of the person The Conisor of a Statute is in Execution and his Land also the Conisee releases to him all debts the Execution is discharged by this Release for the debt was in being until it was levied of the profits but though the Execution be discharged by the party yet until it be discharged in fact if the Goaler had suffered him to go at large he could not have said but that he was in Execution Executors IF a Lease for years be made reserving a Rent upon Condition of Re-entry for not payment If the Executor breaks the Condition so that the Lessor re-enters it is a Devastavit in them otherwise if the Condition were performable on the part of the Lessor Br. Extinguishment 54. for every voluntary act of the Executor by which the Goods of the Testator are consumed without any benefit to the Testator is a Devastavit But if an Executor having such a term as Executor purchaseth the Reversion that is not a Devastavit for the Term as to Assetts is in being still If a man Mortgages his Term and dies and his Executors do not redeem it some think it is a Devastavit If they have Assetts in their hands wherewith to redeem it and the Term be better than the price of the Redemption so if an Executor sells a term under the value by which the Creditors lose their Debts this some think is a Devastavit But if a man be possest of a term and devises it to his Executors to be sold Meliori modo quo possunt for payment of his Debts they sell it under the value that is no Devastavit for it may be it was the best price they could get If Husband and Wife make a Lease of the Wives Land reserving a Rent the Husband distreins and avows and has a Return and dies the Cattle are discharged for the Executors cannot have them for they are but as a Pledge and being the Executors cannot pretend any Right to the duty they cannot detain the Pledge for the Wife is to have the Duty Vide 33 H. 6. 48. If a Rent Charge be granted in Fee the Grantee dies without Heir the Executors shall not have an Action of Debt for the Arrerages But if the Grantee had brought a writ of Annuity and Recovered then the Executors should have an Action of Debt for the arrerages for if the Inheritance of a Rent determins the Arrerages are extinct otherwise of an Annuity If a Grant be made of a Robe or twenty shillings and the Grantee dies before Election his Executors cannot demand the Arrears The Executors of a Grantee for years of a Rent Charge shall have Election either to have an Action of Debt or Annuity If a man be bound in twenty pound and his Executors have but ten pound an Action of Debt lies against the Heir for all 〈◊〉 if he chooseth the Executor he cannot sue the Heir for the Remnant If an Obligor in twenty pound hath Goods to the value of ten pounds only and makes the Obligee his Executor he shall retain that as parcell of the Duty and for the rest bring his Action against the Heir for it is by the act of the Law that the duty is apporcioned If A. by Deed gives the Mannor of D. with all the Woods to B. if Livery be not made the Executors shall have the Woods If there be two Wills and the Executor of the last refuseth before the Ordinary yet the first is revoked by the intent of the Testator If the Executor Releases a duty of the Testator this is so much an Administration so that he cannot after refuse but yet if he doth after avoid the Release he may refuse A Lease for life is made rendring a Rent at Mich and the Annunc the Land is sowen at Mich and the Lessee dies if the Executors shall have the Land untill the Corn be ripe if they ought to pay the Rent Some think the Lessor may have an Action upon the case for the Executors have the profits of the Land c. and no fault in the Lessor As if a gift in tail be made Reserving thirty Shillings and the Donee dies without Issue and the Wife is endowed she shall pay ten shilshillings and yet the Estate is determined but she claims under the Estate of the Husband A man makes a Lease for life reserving a Rent upon Condition that if the Rent be behind that the Lessor shall enter and retain untill he be satisfied of the Arrears he enters and dies his Executors shall not retain for the Arrears were not Chattles at the beginning and therefore they shall not â—etain the Land as a Gage as they shall do for the double value for that was a Chattle at the beginning But in the first case the Arrears are given to the Executors by the Statute of 32 H. 8. Yet being the Arrears were no Chattles at the first and so not due to them by their own nature therefore they shall not retain As in 15 E. 4. 10. In Rescous there it is said if the Defendant in a Replevin avows for a Rent due to him and his Wife and upon that he hath a Return and dies the Tenant shall have his Cattle back again without any Agreement because the Executors could not have the distresse being they could not have the Rent but the Wife was to have it If an Executor delivers a Legacy upon Condition it is no good delivery The Debtee and another are Executors to the Debtor the Debtee recovers against the other and after Administers with the other and then sues Execution by Scire facias If the other shall have an Audita Querela and in whose name it shall be sued or if the property shall be altered in the Recoveror or if Execution be discharged but some think that Execution cannot be stopt but the Recoveror shall have it to the use of the Testator Vide Condition Debt Extinguishment THe Tenant holds ten Acres by ten pence and makes a Feofment of one the Lord grants the Rent reserving the
possession to which he had more right than the Disseisee had As if the Heir who is in by Descent brings an Assize against his Disseisor it is no plea for him to plead the Release of the Disseisee Causa qua supra If a Reversion be granted to an Infant and the Tenant atturns at his full age yet he may disagree for the Grant which was the principal was in his minority If an Infant makes a Lease to commence in futuro and after makes a Feoffment being either at full age or under age the Feoffee shall not avoid the Lease If an Infant delivers a Deed bearing date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date If a Fem Tenant in tail marries an Infant who aliens and dies the wife cannot enter upon the Feoffee for she is not privy in blood to the Infant and privy in Estate onely will not do As if there be two Jointenants and one is a Minor and they are disseised and a Dissent cast the Infant dies the Survivor cannot enter as the Infant might Neither shall a Lord by Escheat or Donor take advantage of Infancy If Land be given to an Infant and his Heirs Females and he hath a Son and a Daughter and aliens and dies his Daughter cannot enter for she is but a speciall Heir Quoad hoc In the principall case if the Wife had been Tenant in Fee simple the Heir of the Infant shall not enter upon his alienation as Litt. says for the Wife had the Right and a Title of Entry which was in Right cannot descend to the Heir of the Husband but in this case being the Husband hath given a Fee simple and had but an Estate in tail in Right of his Wife so that more is given than he had in Right of his wife makes this case more doubtfull than Litts but yet it seems the Heir may not enter for he cannot have the same Estate which his Ancestor had and the Right of the Estate tail survives to the Wife for if Land be given to an Infant in tail who aliens and dies without Issue his collateral Heir cannot enter for the Estate is determined which the Infant had at the time of the Gift for if an Infant be Tenant Par auter vye and aliens and Cesty que vye dies the Infant himself cannot enter 5 E. 4. 5. But in the principall case if the Infant had made a Gift in tail his Issue might have entred by reason of the Reversion but otherwise where no Estate descends to the Heir If Tenant in tail to him and his Heirs Females aliens and dies leaving Issue a Son and a Daughter the Son shall not enter no more shall the Daughter so of the youngest Son in Borough English If Tenant in tail infeoffs within age and after is attainted of Felony his Issue shall not enter for he is Disabled in blood If an Infant be disseised and a descent cast during non-age and after he comes of full age the Heir of the Disseisor dies before his Entry the Infant may enter for the Heir was never possest for he had but a possession in Law Joinder in Action IF two Parceners dye before Partition and a stranger abates the Issues shall not join in a Mortdancester for the Stat. of Gloucester ca. 17. is only when one Right descends to divers but every issue claims her right from and by her Mother so that severall Rights descended to them and so out of the Stat. and is as it was at the common Law and therefore if Parceners are disseised their issues shall not join in a Writ of Entry but shall have severall Writs in respect of their severall Rights as they shall have severall Formedons If one hath cause to have a Writ of Ayel another of Besayel they shall not join for they have cause to have severall Writts But where one is intitled to have a Writ of Mortdancester and another Ayel or Besayel there they shall join But if none of them may have an Assize then there is no Remedy by the Statute 2 E. 3. 34. 48 E. 3. 14. 24 E. 3. 13. If I recover in an Assize and after I am disseised by the same person and another I shall not have a Redisseisin for it must be against the same person If two Parceners make partition upon Record of an Advowson the Eldest presents first and after the youngest and the Eldest and a Stranger present in the turn of the youngest the youngest shall not have a Scire facias against them for the Stat. of Westm 2. does give it against those that were parties to the Record but she may have it against her Sister But in the first case a Redisseisin doth not lie against the Redisseisor for he may plead Jointenancy but in the last case it is no plea that another presented with her for she may have a Quare Impedit against both or several Actions as a man may in Trespasse made by two So if the Lord distrain his Tenant and he sues a Replevin and after the Lord distrains the beast of a stranger and another beast of his Tenant the Tenant shall have a Recaption But if the Lord had distrained again the beasts which his Tenant and the stranger had in common there he could not because for the last distress they ought to joyn and the stranger cannot join in the Recaption If a stranger makes a Rescous to the Lord the Lord shall not have an Assize against him alone without the Tenant because he cannot be said Tenant of the Rent but against the Pernor he may have an Assize only And if there be Lord Mesne and Tenant and the Tenant makes Rescous to the Lord â—an Assize is not maintainable only against the Tenant And if there be Lord two jointenants Mesnes and Tenant and one of the Mesnes and the Tenant makes Rescous the Lord shall not have an Assize against one only but he ought to name both the Mesnes Two Fems Jointenants in Fee have Husbands who make severall Feofments of their Moities and die the Wives shall not join in one Writ of Right for their Right was discontinued at several times So if one Jointenant disseiseth the other and makes a Feofment within Age and dies or if two Infants Jointenants make several Feofments and one dies the other hath no Remedy for the Moity but otherwise if wrong had been made to them at one time though severall wayes If there be issue of two Parceners one dies and the other endows the Wife one Action shall be maintained against both v. 9 E. 4. 14. against Tenant by the Curtesie and the other Parcener 21 E. 3. A Scire facias brought against Tenant by the Curtesie and the other Parcener and good Land is given to four Habendum one Moity to the first two the other Moity to the other two the first two are Jointenants with
shall not have the possession in fact or in Law before Entry If one Jointenant leases his part for years a stranger enters claiming the moity of the other who waives the possession it seems it is a Disseisin to him though the Termor continues in for they are Tenants in common and though the possession of the Lessee be the possession of him in Reversion sc his Companion but è contra if the Termor had waived the possession and the other continues in it seems that he in Reversion cannot be out of possession for his Joint Companion held it Two Jointenants in Fee of a Rent Charge a Stranger takes it to the use of I. one releaseth to the Pernor the other to the Tenant if by the last release he shall be said in possession ab initio then the first release to the pernor is void for the possession of one is the Possession of both Possessio fratris A. Makes a Lease for life and dies having a Son and a Daughter by one venter and a Son by another the Eldest Son grants the Reversion in tail the Tenant atturns and he dies the Grantee in tail dies without Issue Tenant for life dies it seems the Daughter shall have the Land not the youngest Son The Disseisee dies having a Son and a Daughter by one venter and a Son by another the Son after the descent enters upon the Heir of the Disseisor and dies without Issue the Daughter shall not have the Land for his possession was tortious if the Father dies seised and the Eldest Son makes a Lease for life the mother recovers Dower against the Lessee the Son dies the Daughter shall have the Reversion and not the Son But if Tenant for life dies after the death of the Son and during the life of the Tenant in Dower Quaere who shall have the Reversion the Son or Daughter If A. makes a Lease for life and dies his Eldest Son disseises Tenant for life and dies Tenant for life dies the Son shall have the Land from the Daughter which is put in the book of Ass and the principall case is the Eldest Son endows his Mother and dies if the youngest Son or the collaterall Heir of the Eldest shall have the Land The Father dies seised of two Acres theSon enters into one saying nothing if that shall be a sufficient possession of the other Acre to make the Sister to be Heir Quaere Some think it shall not If a Disseisor or Feoffor on Condition enter into one Acre saying nothings there no more shall be gained by that Entry but in the principall case if the Acres had descended one from the Father and another from the Mother then the Entry into one is an Entry but into that only So if it had been on a Title for several Conditions 9 H. 7. 25. So the Entry of the Bastard into one Acre shall devest no morethan that for the Mulier had a possession in Law Quaere If a man makes a Lease for years and dies this possession in Law of the Reversion is sufficient to make the sister Heir Quare Impedit IN a Quare◠Impedit against the Patron and Incumbent it is no plea for the Incumbent to say that he hath been in six months upon the presentation of the Patron for none can plead Plenalty but he who by such plea may gain the Patronage and against whom a Writ of Right of Advowson is maintainable Quod vide in 16 E. 4. 11. But in a Quare Impedit against the Ordinary and Incumbent the Incumbent shall say that he hath been in six months upon the Collation of the Bishop by reason of Laps because no Patronage is gained by that so note the Diversity 2 R. 2. Encumbent 4. 18 E. 3. Quare Imp. 4 8. 13 H. 8. 14. 14 H. 8. 31. 39 E. 3. 30. Recognizance vide Statute Record IF a Record in the C. B. be pleaded in any other Court of the King where it is requisite to be produced it must be exemplisied under the Great Seal of England and the Seal of the Court is not sufficient but if he pleads it in C. B. there if he shews the Exemplification under the Seal of the Court it sufficeth for in the one case it is Teste meipso and in the other Teste the Chief Justice Relation IF a Feoffment be made of a Mannor when Atturnment is had the services passe ab initio If a Lease be made for life the Remainder to the King and Livery is made and after th e Deed is inrolled now the Remainder passes to the King as a Remainder ab initio If Land be given to Baron Fem in Fee he dies and the Wife waives the possession and recovers her Dower against the Heir she shall recover Damages for by her refusall the Husband shail be said to die seised Keylway 104. p. 14. If a man who hath a Villein delivers an Escrowl of Enfranchisement to be delivered to his Villein seven years after and before the end of the seven years he dies and the Deed is after delivered that will be a good Enfranchisement by relation Vide Barg Sale Release LOrd Mesne and Tenant the Tenant holds in Socage and the Mesne in Chivalry the Tenant makes a Gift in Frankmarriage the Mesne releaseth ro the Donor the four degrees passe the Donor seiseth the Ward of the Issue and enters into the Land and he brings an Action of trespass some think it is maintainable If Lessee for years makes a Feoffment to two a Release to one shall inure to both If Tenant in tail makes a Lease for life the Remainder for life and releaseth to him in Remainder and his Heirs if the first Tenant for life dies in the life of Tenant in tail it is a Discontinuance The Tenant holds ten Acres by ten pence and makes a Feoffment of one the Lord grants the Rent reserving the Fealty the Tenant Atturns the Grantee releaseth all his Right in the Land to the Tenant yet he shall have one penny for the Feoffment severed the Seignory and by the Grant two Rents passed and but one is extinct by the Release viz. the Rent of Nine pence Two Disseisors make a Gift in tail to hold in Chivalry the Disseisee releaseth to one the Donee dies some think this Release will inure to both Two Women disseise another and make a Feofment to their Father who dies so that the Land discends to them the Disseisee Releaseth to one it shall inure to both for betwixt themselves they are in by Title If a Disseisor dies seised having two Daughters Bastards and the Disseisee releafeth to one of them that shall inure to both A. makes a Feoffment to two upon Condition which is broken the Feoffor releaseth to one it shall operate to both for they are not in by wrong and a Release where it countervails an Entry and Feoffment doth not extend to Titles If a Disseisee enters upon two Disseisors and they
Disseisee dies because a new Right is come to him he is remitted and the Grantor shall hold it discharged But if the Son disseises the Father and grants a Rent Charge and the Land descend to him the Son shall hold it charged for he is not remitted for the Right descended to him from the same person to whom he did the wrong and he shall be disabled to claim a right from him whom he disseised But in the other case he claims the Right from another If the Father disseiseth the Grandfather and dies after he hath granted a Rent Charge and the Grandfather dies the Son shall hold it discharged for he claims from the Grandfather Quaere for the Entry of the Grandfather was taken away and then when the Right of one who cannot enter descends the Tenant is remitted Quaere but if there be Lord Mesne and Tenant and the Tenant aliens in Mortmain the Lord Paramouns enters and grancs a Rent Charge and after his Title is come viz. the year past and the Mesne hath not entered the Lord shall hold it discharged and his Issue too as it seems for he shall not be remitted for a Title as he shall for a Right accrued but it seems he may bar him upon whom he enters if he brings an Assize and that by his Title Grandfather Father and Son the Father disseises the Grandfather and dies the Son endows the Wife of the Father the Grandfather dies the Son may enter upon the Tenant in Dower for he hath a new right descended from the Grandfather and the Entry of the Grandfather was Congeable upon the Tenant in Dower so shall the entry of his Heir But if the Son had granted a Rent charge and the Granfather had died he should hold it charged and should not be remitted for the entry was not lawfull upon him and when a right descends from the Grandfather he shall not be remitted If the Issue in tail procure one to disseise the Heir in by descent against whom the Heir recovers and dies the Issue shall retain but if he himself had recovered against the Disseisor upon a Title in Being to him he shall not be remitted Quaere If his Father disseisee dies and he recovers a gainst the Heir or the Disseisor by a Formedon If he shall be remitted for the wrong was made to the Estate tail at that time And if one hath title to a Formedon and he procures one to out the Tenant to the intent that he may recover against him and the Stranger outs him and a Stranger recovers by a puisne title to the procurer and the other recovers against him by a Formedon he is remitted If two Jointenants have title of Action where their Entry is taken away and the one procures a Stranger ut supra against whom they two recover and he who Was party dies the other is remitted to all but if he which did not procure had first died the other had not been remitted but to a moity Quaere If the issue in tail within age by Covin commands A. to disseise the Discontinuee of his Father A. disseises him to the use of B. for life and after to the use of his own right Heirs B. agrees A. dies B. dies the Heir of A. enters and enfeoffs the Issue he is remitted because he is now within age Tenant in tail levies a Fine and takes back an Estate in fee upon condition and dies the Heir enters and is remitted and after the Proclamations pass if that takes away the Remitter and if the Condition remains Quaere If two Jointenants are disseised by the Father of one of them who dies seised and his Son enters he is remitted to all the land and his Companion may enter with him And it is not like where two are disseised and a descent cast during the non-age of of one and he enters and is remitted to a moity his Companion shall not enter for the advantage is given him more in respect of his person than of the land Neither is it like where Tenant in Tail enfeoffs one daughter and dies she being within age she is remitted and her Companion shall not have advantage of it for the right was not in them before Nor where they have a joint Title of Formedon by descent and the land descends to one only his Companion peradventure shall not take advantage of it for the Estate tale was taken away but here it was not But if the Grandfather had disseised c. and the land had descended to the Father and from the Father to him it will be otherwise for his Companion shall not have advantage for the Entry was taken away before If the Discontinuee makes a Lease to the Issue in tail and another with Livery to the other and after grants the Reversion to the Issue and the other dies so that the Freehold is cast upon the Issue without his folly yet he shall not be remitted for he assented to the Reversion upon the Lease for life A Disseisor dies without Heir his Wife enseint the Lord enters a Son is born the Disseisee enters upon the Lord If the Entry had been before the birth it had been lawfull and he had been remitted and the birth after would not have avoided the Remitter As if the Discontinuee makes a gift in tail to one the Remainder to the Issue in tail if the first Donee dies without Issue his Wife Priviment enseint now the Issue in the first intail is remitted and though the issue of the second Donee be after born the Remitter continues but here the Entry is not till after the birth of the Son for if a Stranger had abated the Disseisor having Issue or if after abatement a Son had been born the Disseisee could not enter A Disseisee releaseth all Actions to the Disseisor and dies and after the Disseisor dies and his Heir enters and dies and the Land discends to the Heir of the Disseisee if he be remitted Some say there can be no Remitter where there is a cause of Action so that without his folly he hath not any body against whom he may bring his Action but though he hath no Action here yet he hath not lost it by the Law but by his own Act and the Right remains which is the cause of his remitter and in many cases a Right shall remain without an Action as if there be Tenant for life of a Seignory and a Tenancy Escheats and a Stranger intrudes Tenant for life dies before Entry he in Reversion cannot have any Action but may enter as upon the Disseisor of his Tenant but if he dies and his Heir be in by descent there he cannot enter and yet he hath a Right and shall be remitted upon a Discent If a Fem Tenant in generall tail marries an Infant who aliens and dies and his Heir enters upon the Feoffee the Wife re-enters she is not remitted Tenant for life the remainder in Fee makes a gift in
of A. during the life of A. it is a Rent Charge and after a Rent seck and some think that Seisin of a Rent Charge is sufficient to have an Assize for a Rent seâ—k If a Reversion be granted rendring a Rent Quaere what Rent it is during the particular Estate but after the particular Estate be determined it is a Rent Service If a Rent be granted out of two Acres and if it be behind that he may distrain in one that is but a Rent seck for it is but one Rent which cannot be wholly a Rent Charge for the other Acre is not charged and the Distress is but a penalty And if a Rent in Fee be granted and if it be behind two years that the Grantee may distrain now it is not a Rent seck during the two years but a Rent Charge distrainable after the two years And if a Rent be granted to one and if it be behind his Heirs shall distrain the distress is void for there is not any such person in Rerum natura and it shall never be a Rent Charge because it was not one at the beginning but if the distresse had been limitted to a person in Esse then it should have been a Rent Charge as 46 E. 3. 18. If the Lord grants his Seignory reserving a Rent the Seisin before will not be a sufficient Seisin of it If a Rent be granted to two and if it be behind that one may distrain that is a Rent Seck for one Moity and a Rent Charge for the other Moity because one hath another benefit than the other If a Rent be granted for life and by another Deed the Grantor releaseth all his right in the Rent to the Grantee and if it be behind that he and his Heirs shall distrain although the Heir shall have it by distresse as it is adjudged in 8 H. 4. 18. yet the Wife shall not be endowed for it is yet but a Rent seck and the distress but a penalty and it is no new Rent which commences after the death For if a Rent be granted for life and by another Deed the Grantor grants if the rent be behind he shall distrain the remainder in Fee the remainder is void for he doth not take such an Estate which will support a remainder If a rent be granted our of the Mannor of D. and if it be behind he shall distrain in the Mannor of S. the Grantee purchaseth the Mannor of S. yet the rent remains and if he doth not purchase all the Mannor the distress shall remain in the rest and yet the penalty was a thing against common right Tenant in tail makes a Lease for forty years reserving a rent and after dies the Heir suffers the Lessee to continue in two or three years and then outs him he hath no remedy for the rent arrear after the death of Tenant in tail no more than the Lessee hath for the arrears incured after the breach of a Condition where he hath entred for the breach of the Condition and it seems he shall not have an Action of accompt against him as Bailiff of the Land A rent seck is granted for life and after the Grantor confirms his Estate and if it be behind that he and his Heirs shall distrain it is a rent seck stil for life and the Grantee hath the rent charge in Fee in remainder for he hath not two rents As if the Lord of a Mannor grants the Homage and Fealty of his Tenants saving the rent it is a rent seck and shall be parcell of the Mannor now if the Tenant will grant to the Lord that he and his Heirs shall distrain for that rent yet the rent is parcel of the Mannor and the distresse but a penalty but if it were a rent charge it shall not be said parcell of the Mannor because it shall commence but now If the Lord grants the rent of his Tenant to one for life saving the Seignory and then grants the Seignory and reversion of the rent to the Grantee yet it must be a rent seck during the life of the Grantee and after a rent service for the reversion of the rent which was a rent service cannot drown the Freehold of the Rent which was of another nature no more can the Reversion of the Rent Charge drown the Freehold of the Rent Seck in the principal case But in the last case if the Grantee had re-granted the Rent Seck to the Grantor who had the Reversion that will operate as a Surrender Quaere what diversity where the Reversion comes to the Freehold or the Freehold to the Reversion If a Rent be granted out of two Acres and if it be behind that he shall distrain in one that is not a Rent Charge in any part for the distresse is not limitted out of all the Land If twenty shillings be granted out of the Mannor of D. and if it be behind that he shall distrain for that twenty Shillings and another twenty Shillings out of the Mannor of S. the first twenty shillings is but a Rent Seck and the distresse a penalty and the last a Rent Charge in the Mannor of S. But if one grants a Rent out of the Mannor of D. and if it be behind that he shall distrain in D. and S. that is a Rent Charge in the Mannor of D. and a penalty in the Mannor of S. If a Rent be granted to one for the life of A. and after the Grantor grants by another Deed that he shall distrain for his life with a Remainder in Fee that is a good Remainder if the first Rent be determined but if the distresse be appointed for the life of A. or B. it is otherwise for it is but a penalty but in the other case the Estate is given also though it be a penalty during the time of the appointment of the Determination of the first Rent If twenty Shillings is granted out of D. and that the Grantee and his Heirs shall distrain for that twenty Shillings and other out of the Mannor of D. and S. For the first twenty Shillings it is a Rent Charge in D. and a penalty in S. and for the other it is a Rent Charge in both If a Rent be granted out of two Acres with a distresse in one and after the other is recovered by an Eigne Title it shall be a Rent Seck as it was before for it cannot be now a Rent Charge if it were a Rent Seck before If a Rent reserved upon a Lease for life be granted over and after a recovery is had in Wast yet the rent remains as if the Lord grants the rent reserving the Homage the Rent remaines after the Escheat A rent is granted in Fee out of Land in Borough English and at common Law the Grantee dies having two Sons the Eldest shall have all for the rent is intire and so not apporcionable then the Eldest being he is Heir at Common Law shall
If two Parceners are seised in tail and one grants a Rent to the other for Equalty of Partition she shall have an Estate tail in the Rent 2 H. 7. 5. and note that the Estate in the Rent shall be of the same nature of the Estate received and not of the nature of the Estate out of which it issues As if there be two Parceners of one Acre in Fee and of the other in tail and upon Partition she which hath the Acre in Fee grants a Rent to the other that Rent shall be in tail and not in Fee but if she which hath the Acre in tail grants a Rent to the other that shall be in Fee for if she dies without issue her Heir shall have it as long as the other hath issue of ber body But if there be four Acres in Fee and one in tail and she which hath the four Acres in Fee grants a Rent to the other that shall be in Fee Quia sequitur magis principale If the Lord grants the Rent saving the Seignory and the Tenant is after disseised and atturns this is void for it is now a Rent Seck in which there is no Attendancy but a Charge to the Land If a man grants a Rent reserved upon a Lease for life saving the Reversion it is a good Rent Seck if the Tenant atturns But if there be Lessee for years rendring a Rent and the Rent is granted over saving the Reversion that is void for debt cannot lie by the Grantee and he cannot have any other action If the Feoffec upon Condition pays twenty shillings to the Lord whenas the Tenure was by Fine the Feoffor after his Entry for breach of the Condition is bound in a Replevin So if Lessee for life with Condition to have Fee and the Lessor pays more Rent to the Lord than he ought and after the Condition is performed the Lessee is bound in a Replevin So if a Seignory of twenty shillings is granted over by Fine and the Tenant aliens over and after pays forty shillings to the Lord the Feoffee is bound If a Lease be made for life rendring the first four years a Rose and after a yearly Rent of twenty shillings and the Lessor grants the Rent of twenty shillings to commence after the four years this Grant is void for the Rose and twenty shillings are all one Rent and if the Grant should be good the Grantor should have the Rose for four years whereas before he had the Freehold and then it is as if one had a Rent in Fee and grants it over after four years that Grant is void otherwise of a Rent created de novo If a man hath a Rent in Fee and becomes Tenant by the Curtesie of the Land and dies his Heir shall have a Mortdancester of the Rent which he could not have had if his Ancestor had not died seised So if an Assize be brought against the Pernor of a Rent and after the Plaintiffe is nonsuited the Disseisee of the Rent is chased to his Action for the Rent for the dying seised takes away his Entry viz. where the Pernor had an Estate for life in the Tenancy Lessee for twenty yeares makes a Lease for ten years reserving a rent and after makes a Lease to the same Lessee for ten years to begin after his first Estate ended It seems that the first Lessee shall have the rent during the first ten years as a rent service and distrain for it for the last ten years are not out of the first Lessee nor vested in the other neither shall they untill the beginning of the Term and in the mean time he hath but a right or Title to the Term. If Tenant for life and he in reversion grant a rent charge and the Grantee releaseth all his right to him in reversion if the rent be extinct Quaere If a Lease be made of two Acres rendring a rent upon Condition to be performed by the Lessee that he shall have Fee in one Acre not saying in which and Livery is made of both the Lessee performs the Condition what rent the Lessor ought to have Quaere or if it shall be apporcioned being part of the reversion to which the rent is appendant is in the Lessee and by an Act that had relation So that it may now be said that the rent was never reserved out of that Acre which seems to be of the same effect as if there had been a gift made of two Acres the one in Fee and the other for years rendring a rent in this case it shall be of one only Acre for he may distrain of common right and out of the other Acre no remedy until after Seisin Also in the said cafe if the Lessor will distrain in one Acre the Lessee shall take his Election viz. he shall say that he hath Fee in that Acre and so exclude the Lessor The Son makes a Lease to the Father for life who makes a Lease to A. for life the remainder in Fee to the Son the Son grants a rent charge out of the remainder and releaseth to A. in Fee the Father and A. die if his Issue shall hold it charged First it seems that the right Fee is devested and a tortious vested all in the same lastant As if Tenant in tail makes a Lease for life c. or the Husband makes a Lease for life of the Wives Land c. then in the first case the Rent being granted out of the Reversion it is the same as if it had been granted out of the Remainder for they differ not in substance And when the Son releaseth to A. and his Heirs all his Right that doth not inure as an Entry and Feoffment because A. was in by Title without Disseisin then that doth not give unto him the remainder as if he had released all his Estate in the Land or all his right Habendum the Land in Fee but here he had the right and the Estate and then a Release of right doth not inure to the Estate then if the release doth not perfect the remainder if the Grant of the rent which is an assent to the remainder doth so inseperably unite the remainder and the Rent that the right shall be drownd in the Estate for the preservation of the Rent and some think not for if the Disseisee takes an Estate in Fee from him who hath the Land by Descent he agrees to it and yet if he dies his Heir shall be remitted and so the rent charge avoided But others think that being by the Grant of the rent charge he hath agreed to the remainder and so to the Livery he cannot after enter upon the Tenant for life and then the release gives the remainder and so the Land is charged Where a Woman shall be endowed of a rent Vide Dower If a rent seck be granted and after it is granted that he may distrain in the same Land and after the Grantee brings a writ
dies within the term if the Issue being remitted to the Freehold of the Villain may enter into the Mannor and out the Villain Upon a plea in Bar of an Assize the parties are adjourned and after the Tenant pleads a Release made after the Darrein Continuance bearing date in a forreign County and after at the Venire fac return'd the Tenant pleads that after the Darrein Continuance he hath purchased the Mannor to which the Plaintiffe is a Villain he shall not have this plea for he shall not delay the Plaintiff by his plea but once where the matter of fact happens de puisne temps for he is at no mischeif if his plea be true But in shewing a Record after he shall plead it if it be in the same Court. And here the Villain shall not be enfranchized for the Plea was pleaded before which now he ought to maintain but if he answers his Villain de Novo that is an Enfranchisement Voucher THe youngest son of an Abator hath Land by descent by the custom of Borough English or by reason of an Estate tail made to his Father and a second Wife in a Mortdancester brought against him he shall vouch notwithstanding the Counterplea given by the Statute for the Statute extends but to Heirs at common Law and therefore if an Abator hath Issue two Daughters and makes a Feoffment and dies and one of them takes a Feofment and an Assize is brought against her she shall vouch for she is not sole Heir but if she had been sole Heir then cleerly she shall not vouch though she doth not come to it as Heir And if an Abator and a stranger being Tenants in a Mortdancester vouch they shall have the Voucher If Feoffee with Waranty to him his Heirs and Assigns makes a Lease for life the Tenant for life in a plea vouches the first Feoffor and recovers in value Land held of the Feoffee if the Feoffee shall have his Seignory For if the Reversion of the Land recovered be in the Feoffee then he shall not avow and if he shall not Quaere if Lessee for life shall vouch as Assignee being that he hath not all the Estate And it is cleer if the Feoffee had made a Lease for life the remainder in Fee the Lessee shall vouch as Assignee and if he recovers in value the remainder shall be in him in whom it was before 28 Ass p. 18. 11 Ass p. 3. If the younger brother and a Stranger abate and the Stranger dies now a Mortdancester doth not lie or if an Abator makes a Feoffment and retakes an Estate to himself and another and the other dies the Voucher does not lie for him and yet before an Assize of Mortdancester and Voucher did lie If a Feoffment be made with Warranty to one his Heirs and Assigns the Feoffee makes a Feoffment over the second Feoffee enfeoffs the Son of the first Feoffee he shall vouch for he may be Assignee of his Father being he does not come in as Heir Lord by Escheat Mortmain or of a Villain c. shall not be said Assignees Land is given to Husband and Wife and to the Heirs of the Husband he makes a Feoffment with Warranty and dies the Wife brings her Cui in vita the Feoffee vouches and recovers in value by reason of the Warranty after the death of the Wife he shall vouch again by reason of the Warranty aforesaid So if a Woman brings a Writ of Dower and the Feoffee vouches by reason of the Warranty he shall vouch again after the death of the Wife because the Voucher and Recovery in value was onely in respect of the Freehold but if he had once recovered in value of the Fee he should never vouch again by reason of the first Warranty for he hath the effect of it and also the Warranty is gone with the Estate But if Tenant in Frankmarriage recovers in value he shall vouch again but it is otherwise of Tenant for life If Tenant in tail to him and his Heirs Females the remainder to him in Fee makes a Feoffment with Warranty and dies the Heir Female recovers and the Feoffee recovers over in value he shall vouch again after the Estate tail is spent by reason of the first Warranty If the Tenant vouches and at the Sequat sub suo periculo the Tenant and the Vouchee make Default whereupon the Demandant hath Judgement to recover against the Tenant and after he brings a Seire fac against the Tenant to execute the Judgement if the Tenant shall have a Warrantia Chartae against the Vouchee But if a stranger brings a Praecipe quod reddat against the Tenant some think that he shall vouch for by the first Voucher and the Judgement given against the Tenant the Warranty was not defeated nor the possession of the Tenant but if the Tenant had judgement to recover in value against the Vouchee he shall never vouch again by reason of this warranty for the warranty hath lost its force being he had Judgement to recover in value by reason of it for if he should recover again he should have 2 Recoveries upon one warranty It was holden cleerly that if the tenant hath Judgment against the Vouchee he shall recover no land in value but that the Vouchee had at the time of the Judgment And note upon a Summoneas ad Warrantizand if the Sheriff returns the Vouchee warned and he makes default the Tenant shall have a Cap. ad val and recover in value but if he returns that he hath nothing then after the Sicut alias pluries a Sequatur sub suo periculo shall issue and there if the Vouchee makes default he shall not have Judgement to recover in value for the Warranty is not confessed and it is uncertain whether he had any thing but in the Cap. ad val it appears that he has Assetts A. seised of two Acres at Common Law and one in Borough English and makes a Gift in tail to a Stranger of one of the two Acres and dies the Donee is impleaded and vouches the eldest Son and recovers in value the other Acre out of his possession as he shall do in this case being he vouches him alone and not the youngest where the eldest hath assetts the question is if he be impleaded for that Acre he hath recovered if he shall vouch the eldest and the youngest If that Acre in Borough English shall be lyable by reason of the said Warranty in Law being it is not the Warranty which descends but the Warranty in Law commenceth first in the Eldest Son for the Recovery in value shall be said in lieu of the first Land given yet it is always to be intended having regard to the estate of the Reversion descended from the Father the Reversion left in the Eldest Son and then the Acre of the youngest is not lyable to that Warranty So if the Father had given a Seignory to the Eldest Son in tail and died seised
of Land in Borough English which descended to the youngest Son and after the Tenancy escheats the Eldest being impleaded vouches himself to save the Intail but if the Land of the youngest shall be lyable is the question Lessee for life the remainder to the right Heirs of A. who is dead having a Daughter his Wife enseint with a Son the Lessor warrants the Land in forma praedicta the Son is born the Daughter cannot vouch by reason of the Warranty for the Warranty is a thing executory which cannot be deraigned but by the right Heirs of A. For if a Feoffment be made to the Son with Warranty and he dies without Issue and the Land comes from the Unkle to the Father he cannot take advantage of this Warranty as Heir to his Son so if Possessio Fratris makes the Sister Heir she shall not vouch 35 H. 6. 34. Danby but he shall be voucht as Heir for the possession so shall the Father so shall the youngest Son in Borough English but shall not vouch Vide Fitzh Voucher 94. 35 H. 6. 33. If Land be given to two brothers in Fee with Warranty to the eldest the eldest dies having Issue and the youngest dies without Issue the Issue of the Eldest being his Heir and he enters he shall not take advantage of this Warranty by Voucher or Rebutter for the Warranty was void having regard to the Survivor because his Title hath relation before the Warranty If the Eldest Son is voucht as Heir to the Warranty and the youngest as Heir in Borough English and the Eldest voucheth over if the Eldest or the youngest shall have the Recompence in value It would be unreasonable that the eldest should have it for he lost nothing for by the law the tenant cannot sue Execution against the Vouchee untill the demandant hath sued execution against him and in this Case execution was never sued against the Eldest for he hath no land and the youngest hath not the warranty by descent though he hath the land and so he cannot vouch and therefore it is hard he should be bard by it Wast LAnd is given to Baron Fem and to a third person the third person releaseth the Fem all his right and the Baron Fem makes a Lease of the whole for yeares and brings a writ of Wast against the Lessee The Lessee is not punishable in Wast if a house falls that was ruinous at the time of the demise and he may cut Trees to repair it so he may do if the Lessor covenants to repair it vid. 12 H. 8. 1. If a house with land is let upon which is a Wood without impeachment of wast for the house yet if the house becomes ruinous he may cut timber for the reparation and a Lessee may take timber for fier-boot if there be no other wood quod vid. 21. H. 6. 47. If a man makes a lease upon condition or that the Lessee is bound in an obligation not to do wast and that his estate shall cease If a Stranger commits Wast that is no forfeiture of the Lease for the condition extends only to the person of the Lessee vid. 3. H. 6. 17. But if a stranger commits Wast upon the Lessee for years or Guardian in Chivalry they shal render treble and shall lose the ward but Guardian in Socage shall not be punisht for wast of a stranger for the heir himself shall have an action If a Lease is made for life the Lessor dies having two Sons by divers venters the eldest grants to the Lessee that he shall be dispunisht of wast yet that shall not bind the youngest for he does not claim as heir to his brother but as an heir to his father who was last actually seised Fem tenant for life the remainder for years to I. S. who marries with the Fem and Commits wast quaere if the land be lost If tenant for life makes a lease for years and after enters upon the termor and commits wast and the Lessor recovers the Lessee shall lose his term A man shall not be punished for comming on the land to see if wast be committed The heir makes a Lease for years wast is committeed the wife recovers in Dower the heir shall have an action of wast in the tenuit A man makes a lease for twenty yeares without impeachment of Wast and the Lessor confirmes for forty years the Lessee shall be dispunisht for twenty years A man makes a lease rendring rent on condition that if the rent be behind that the Lessor shall reenter and retain until he be satisfied the rent out of the profits the Lessor doth enter and a stranger commits wast and then the Lessor is satisfied of the rent if the wast be punishable If one doth devise his lands which he hath for years and dies the Executors commits wast and then agree to the devise an action of wast lies against them notwithstanding the relation So if Lessee for years grants his term upon condition and the grantee commits wast and the Lessee for years enter for the condition broken yet wast lies against the grantee Where a man hath election to take two estates his committing of wast will be a determination of his election If there be Lessee for life the remainder for life and the Lessor grants the reversion to him in remainder quaere if he shall have an action of wast If Tenant for life makes a lease for years and enters and commits wast the tenant for yeares leases his term wast by the assignee of an infant or fem Covert shall take away the special right of Infancy Coverture or condition but otherwise if it had it been made by themselves Warranty GRandfather Father and Son the Grandfather makes a lease of an Acre for life and dies the Father being tenant in taile discontinues it in Fee with warranty and dies the tenant for life dies the Son enters into the Acre after his death and brings a Formedon the warranty of the Father with this Assets seemes no barr The discontinuee of a tenant in tail makes a Feofment on condition and a warranty collateral is made to the Feoffee of the discontinuee the discontinuee enters for the condition bro ken the issue hath no remedy against him If a Collaterall Warranty descends within a year upon him that hath Title to enter for Mortmain he cannot enter after for if he himself had re leased he could not have entred and the Warranty will bind him as well as his Release but Quaere if a collaterall Warranty extends to a Title of Entry If a man devises Land with Warranty that is void because the Father himself was not bound A Warranty made to a Disseisor is not destroyed by the Release of the Disseisee A Collateral Warranty shall not bar Execution of a Recovery in value for it is but a Title to which a Warranty does not exâ—end no more than to bar a Title of Entry for consent to a Ravisher or
esse at the time but if upon a rescous she brings an Assize and after is nonsuited and after the Tenant makes a Feofment of the Land with warranty that warranty will extend to the Rent Quod nota A man dies seised of an Acre in Borough English in tail having three Sons the youngest enters and makes a lease to the second for years who makes a Feofment with warranty and dies without Issue the yongest dies without Issue the eldest brings a Formedon if he shall be barred by the warranty It seems though the warranty descends upon the eldest where it was a disseisin to the youngest yet when the right of the Land comes unto him he shall say that the warranty comences by disseisin because he is now privy to the warranty and to the estate for if the Father seis'd in fee makes a lease to the Grandfather for years who makes a Feofment in Fee with warranty and dies and the Father dies that warranty shall not be a bar to the son because it comenc'd by disseisin to him whose Heir he is And if a man hath Issue two Sons the youngest makes a Lease for years to the Father who makes a Feofment with warranty and dies and after the Eldest dies without Issue and the warranty descends upon the youngest that shall be no bar because it comences by disseisin and though the Land doth come immediately to him upon whom the warranty descends as it was in the principall case or although the warranty doth not descend upon the Tenant of the land immediately as heir to him thatmade the warranty yet all is one Warranty which ommences by disseisin and wrong is made to him in the interim upon whom the warranty descends after although that wrong was not a dissesin to him yet it is a warranty which commences by disseisin As if an Ancestor Collateral to the Donor desseise the Donee to the intent to make a feofment with warranty which is done accordingly and the warranty descends upon the donor and after tenant in tail dies without issue in a formedon in reverter the warranty shal be no bar because it commences by disseisin to the tenant in tail at which time wrong was made to him in reversion and therefore he shalsay that the warranty commences by desseisin tamen vid. 30. E. 3. 12. But if a man makes a feofment with warranty and dies which is a disseisin to a stranger the heir of the Feoffor if he hath not the right of the land descended to him after shall be vouched for the warranty then in the principal case if the eldest cannot say that the warranty commences by disseisin yet it shall be lineal against him for by possibility he might have made himself 〈◊〉 to him that made the 〈…〉 for the land doth descend to the youngest heir as well as to the youngest Son and so to the youngest unkle for the reason is all one for the young'st brother shal be in as youngest Son to the common Ancester but some say there is not any reason in these two cases If tenant in tail is desseised and release to the desseisor with warranty and after is attained of felony and hath a Charter of pardon and dies it â—â—â—ms it is a discontinuâ—â—ce for if he had purchaseâ— land after his Charter it would descend to his heir which proves that the blood betwixt him and his heâ—â—â—â—ot corrupt as it is between him and his Ances 〈…〉 then the warranty being in esse at the time 〈…〉 death there is no iâ—pediment but that 〈◊〉 descend But if tâ—nant in rail who hath a 〈◊〉 annexed to hâ—s estate be attained of sel 〈…〉 executed many think his issue 〈◊〉 not iâ—herit the voucher for the warranty 〈…〉 th the land for the warranty is out of 〈…〉 de Donis Condit which 〈◊〉 of 〈…〉 ements which are given upon addition 〈…〉 sowd thinks the contrary for by the equity 〈…〉 statute it is pres 〈…〉 as well 〈◊〉 Charters 〈◊〉 1. H. 6 20. per M 〈…〉 60. b. C. 〈◊〉 for Charters Feoffee with 〈…〉 by the Feoffor who dies sell 〈…〉 he issues who brings a wâ—â—â— of 〈…〉 â—oyned upon the mecre 〈…〉 the 〈…〉 barred for if the Feoffee 〈…〉 â—â—mpleaded 〈◊〉 â—â—ranger shal arraine the wâ—â—◠〈…〉 aganist 〈◊〉 Issue is the question