UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY PERKINS'S PROFITABLE BOOK, IN ENGLISH. " In Master Perkins his Book be many commendable things, delivered by a ready conceit and pleasant method ; many excellent cases which savor of great reading and good experience : his Treatise is to young students acceptable and precious, to whom his very faults and errors be delightful. But it might be wished that he had written with less sharp- ness of wit, so he had discoursed with more depth of judg- ment ; for he breaketh the force of weighty points with the shivers of nice diversities ; yet many things are to be allowed in him, many to be praised, so that the reader be careful in bis choice, wherein he was too careless." Fulbecke (Preparative to the Study of the Law). PROFITABLE BOOK, TREATING OF %%t &aft>0 of dttglanti; PRINCIPALLY AS THEY RELATE TO CONVEYANCING. By JOHN PERKINS, Esq. SOMETIME BENCHER OF THE INNER TEMPLE. THE FIFTEENTH EDITION: riiL TRANSLATION REVISED AND CORRECTED THROUGHOUT, WITH NOTES FOR THE USE OF STUDENTS, ADDITIONAL REFERENCES, AND AN ANALYTICAL INDEX, By RICHARD J. GREENING, Esq. OF THE INNER TEMPLE. LONDON: J. & W. T. CLARKE, LAW-BOOKSELLERS AND PUBLISHERS, PORTUGAL-STREET, LINCOLN's-INN. AND R. MILLIKEN, DUBLIN. 1827. T P4i94 ? Luke Hansard «k Son*, near Lincola's-Inn Fields ( v ) CONTENTS. Editor's Preface fo. i Procemium Johannis Perkins - - xiii chap. 1. Of Grants - - - s, 1. _ 1 2. Of Deeds - 117. - 24 3. Of Feoffments 182. - 37 Notes on Fines, Recoveries Uses ... ! and _ 49. a 4. Of Exchanges 5. Of Dower ... 244. 300. — 49 60 6". Of Tenant by the Curtesy 7. Of Testaments 456. 476. - 89 9 2 8. Of Devises - 9. Of Surrenders 495- 581. - 95 112 10. Of Reservations G25. _ 119 11. Of Conditions 707. - 136 Addenda et Corrigenda - 169 «3 756439 preston's sheppard's touchstone. Closely printed, in two voh. royal 8vo. y price 3/. 34. boards, The Touchstone of Common Assurances; or, a Plain and Familiar Treatise, opening the Learning of the Common Assurances or Conveyances of the Kingdom. By Wm. Sheppard, esq. The Seventh Edition, including all the Notes and Additional References in the former Editions and in the improved MS. Copy of Edward Hilliard, esq. Also, an enlargement of the Text, &c. by the Addition of various Criticisms, Distinctions, &c. &c. and a copious Index. By Richard Preston, esq. of the Inner Temple. Sheppard's Touchstone ever has formed, and for a long seriei of years will form, an essential part of erery well-selected Law Library For the soundness of its propositions, its succinct me- thod, and its excellent arrangement, this book is not surpassed by any work on the law. To the period of its date, it was a complete summary of the existing law on the modes of assurance and on various subjects connected with titles. It is impossible to read the work and not trace the mind of a profound lawyer, posses- sing extensive knowledge, founded on great experience. In octavo, price 12 s. boards, Principles of Conveyancing, designed for the use of Students; with an Introduction on the study of that branch of Law. By Charles Watkins, esq. Fourth Edition, with the Author's last Corrections and very considerable Addi- tions, and a copious Index by R. Preston, esq. Barrriste? at Law. ( vii ) THE EDITOR'S PREFACE. Nearly three centuries have elapsed since the original appearance of the present work, and for more than two of these it has been cited as autho- rity by the best lawyers ; therefore no apology would be necessary for presenting a new edition to the Public, even had it not been long called for. The personal history of the Author is buried in oblivion: he appears to have flourished in the reign of Henry the 8th, but the precise time is not known ; the existing Admission Rolls of the Society of the Inner-Temple, of which he was a member, go back no further than the 1st of Edward (Jth, a. d. 1547, and give no information respecting him. A MS. translation of his work among the Harleian MSS. in the British Mu- seum, and Dr. Cowell in his Interpreter, concur in stating him to have been a Bencher of that Society. Like most legal treatises of that period, the Profitable Book was written in Law-French, and was first printed in the year 1532: it was not then divided into sections, as at present ; but, for the convenience of reference, alphabetical divi- sions were made in the margin of each folio : the division of the text into sections was made in the edition of 157O, and has ever since been retained, a 4 Vlll THE EDITORS PREFACE. The printed English translation of the work seems to have been made in the year 1642 ; but, unfor- tunately, by some one incompetent to the task ; and was printed very inaccurately in the same year. In tl>is first English edition the language of the original is reversed in many passages, while in others, words, clauses, and even whole sen- tences, are omitted. Notwithstanding these glaring defects, this first has been the standard of all the subsequent English editions; for its paging, and even the errors of the press found in it, were care- fully preserved down to the last, printed in 1757, and professing in the title page to be corrected. The early French impressions of the work have become so extremely scarce, that it was found difficult to procure a copy of one of them, for the purpose of preparing this edition for the press; that printed by Richard Tottell, without any date (supposed about 1558), has been used for this purpose : but even this edition is in some places obviously incorrect; and it therefore became an object to obtain one of an earlier date for the pur- pose of collation : in attempting this the Editor was led to the British Museum, and in his search there found a copy printed in 1555, also by Tottell, and the following MSS. " Hargrave MSS. 244:" " A volume in folio, "on paper ; written early in the 16th century: containing, " 1 . Two Dialogues ' betweene a Doctour of Dy- vynyte and a Student in the Lawe of Eng- land,' fo. 1. a leaf of the Introduction, wanting. THE EDITOR S PREFACE. IX " 2. The Book in French, ' by Master John Perkins, Felowe of the Inner Temple, treat- ing of the Lawes of this Realme.' fol. 170. This also is imperfect at the end." " Harleian MSS. N° 5035." " A Paper Book, closely written on 159 leaves, with this Title, < A Profitable Booke of Master John Perkins, Fellow and Bencher of the Inner Temple, translated into English by G. T. treating of the Lawes of England.' A Table of the Chapters in English verse is subjoined ; and then, Copy of Latin verses to the Reader, subscribed ' Tuics plus quam suus.' Gill. Trob." The former of these (which for the sake of dis- tinction, may be called the Hargrave MS.) has no title or preface, and contains nothing to fix its date ; the text continues from beginning to end without any formal divisions, although there are slight breaks where the present chapters ter- minate, and originally it had no marginal refer- ences, for the few now to be found in it have been evidently added at a later period. The vo- lume appears perfect, but a great number of the leaves at the end are misplaced ; it is much more correct than the printed copies, and has been the authority for many corrections in the text. The Harleian MS., an English translation, is evidently of the reign of James 1st, and is different from that in print, but affords no additional information. In the present edition every line has been compared with the French text, of which it has X THE EDITORS PREFACE. been endeavoured to give a faithful representa- tion ; it was not considered advisable to depart from the old translation further than in correct- ing its errors, and rejecting those gross and un- necessary Gallicisms which ought never to have been admitted. The paging of the former English editions has been omitted as entirely useless, but the division into sections is of course preserved ; and the folios, and alphabetical marginal divisions of the original French editions are restored, because the work is generally referred to by those in the old Reports. The original marginal references have been retained, but the Editor does not hold himself responsible for their accuracy ; most of these are to Fitzherbert's Abridgment, and some to the Year Books : the references now added it is hoped may be found useful. The Editor has framed and added a new analytical Index, and expunged the old Table, which was almost useless. The Notes which the Editor has ventured require an apology. When a few months since he volunteered his services to prepare a new Edition of Perkins, he expected ample leisure and opportunity to collect and add some observa- tions upon the Text, to serve the Practitioner as well as the Student. In that expectation he has been disappointed, and therefore in the present Notes, written at hasty intervals, has attempted nothing beyond familiar explanations and remarks, to remedy the want of the oral explanation re- commended by the late Mr. Watkins *, but which, * Vide Introduction to Principles of Corive^aiicing. THE EDITOR S PREFACE. XJ in the present system of legal education, can fall to the lot of but few. With this view attention has been directed principally to the quceres, above one hundred in number ; but remarks have also been added upon other passages of the Text : the limited size of the volume has led to the expunging of some Notes, which upon reconsideration it ap- peared might be dispensed with ; and more would have been disposed of in the same way, but for the writer's recollection, that many of the points they refer to, although now appearing to him so clear as neither to require observation nor to admit of misapprehension, were once serious ob- stacles to his own progress : and that these Notes might therefore prove serviceable to other Novices, while they might be passed over without incon- venience by the more experienced Reader. i, Inner-Temple Lane,"\ Jan. 23, 1827. J ( xiii ) Procemium Johannis Perkins*. Quia usus rerum secundum rectam rationem debet competi hominibus, sicut congruit ad congruam et pacificam conversationem, et necessariam sustenta- tionem : in statu autem innocenticc communis usus, sine distinctione dominiorum ad utrumque istorum, plus valuit quam distinctio dominiorum ; quia nul- lus tunc occupasset quod fuisset aliis necessarium, nee oporteret illud per violentiam ab ipso extorqueri, sed quilibet hoc quod primo occurrisset necessarium occupasset ad necessarium usum, sic et magis Juit sufficientia ad sustentationem quam si cui prceclude- retur usus alicujusper appropriationem illiusfactam alteri. Sed istud prceceptum legis natures, de ha~ kendo omnia communia, revocatum est post lapsum ; et rationabiliter, propter duo : Primo, quia commu- nitas omnium rerum esset contra pacificam conver- sationem, cum mains et cupidus occuparet ultra ea quce essent sibi necessaria, et hoc et injerendo vio~ lentiam aliis qui vellent secum eisdem communibus ad necessitatem uti, sicut legitur de Nemroth, qui erat robustus venator coram Domino et hominum oppressor. Item esset contra necessariam sustenta- tionem, propter illud, quia fortiores bellatores, pri- varent alios necessariis. Et ideo Politia Aristotelis, (quod non sint omnia communia, quod multo melius * This Preface was omitted in the former English editions, but with all its defects has been thought worth preserving ; and an endeavour has been made to give it in the exact words of the author, which, from the contractions used by the old printers, and errors of the press combiued, it is in several instances difficult to discover. XIV PROCEMIUM JOIIAXKIS PERKINS. est quam Politia Socratis * ) reprehendit de omni- bus communibus secundum Mud quod Philosophus invenit in hominibus. Sic revocato isto precepto legis naturae, de. habendo omnia communia, et con- cessit licentia appropriandi et distinguendi commu- nia non ficbat actualis distinctio per legem natures, ncc per divinam, quia lex naturae determinavit quod omnia essent communia et lege divina: (Domino est terra et plenitudo ejus: ) lege ergo humana (quae et positiva dicitur J hcec domus mea est ; hcec villa mea est ; hie serous mens est ; hie equus mens est, SfC. Sic patet quod, aliqua lege positiva humana, jiebat prima distinctio dominiorum. Et quod lex positiva humana sit justa, requiruntur in legislatore et prudentia et auctoritas: Prudentia, ut secundum rectam rationem practicam dictet quod faciendum pro Communitate : Auctoritas, quia dicitur lex a ligando, sed non qucecunque sententia prudentis ligat communitatem, nee aliquem si nidlus prcesi- deat. Quomodo autem prudentia poterit haberi ad excogitayidas leges justas satis patet, videlicet, prce- cipere quce sunt prcecipienda, prohibere quce sunt prohibenda, permittere quce sunt permittenda, prce- miare quce sunt prevmianda, et punire quce sunt punienda. Quomodo autem auctoritas justa habe- tur, cum hoc requiritur ad legem justam ; sciendum est quod duplex est principatus vel auctoritas, scili- cet, paterna et politica : et politica duplex est, scili- cet in una persona, vel in communitate. Prima, scilicet paterna, justa est ex lege naturce, qua omnes filii tenentur parentibus obedire ; nee ista per legem aliquam, mosaicam vel evangelicam, est revoeata sed inagis conjirmata. Auctoritas vero politica, quce est super extranea, sive in und persona resideat, sive in communitate, potest esse justa ex communi consensu electione ipsius communitatis. Et prima * This probably refers to some extravagant propositions of Plato, (the pupil of Socrates), De Republ. lib. 5, opposed by Aristotle in the second book of his Politics. PROCEMIUM JOHANNIS PERKINS. XV auctoritas respicit ad serisum naturalem quamquam non cohabitantes civiliter : secunda, respicit coha- bitantes quantumcunque nulla, consanguinitate vel propinquitate conjundos, utpote si ad civitatem aliquant cedificandam vel habitandam occicrrerunt extranei aliqui, videntes se non bene regi sine aliqua auctoritate poterant concorditer consentire, ut vel uni personce vel communitati committerent Mam communitatem ; et uni vel pro se turn successor eli- geretur, sicut ipse, vel pro se et tola sud posteritate, et ista auctoritas politico utraque justa est ; quia juste potest quis se submittere uni personce Vel com- munitati in his quce non sunt contra legem Dei, in qnibus melius potest dirigi per ilium cui sc submittet quam per seipsum : sic patet complete quomodo poterat condicta humana lex justa positiva, qua primo distinctio dominiorum potuit esse justa, site lata a parte sire principe sire communitate justa regnante vel regente. Et hoc modo probabile est factum fuisse. Nam rel post diluvium Noe Jiliis suis distinxit terras quas singuli occuparent pro se, vel Jiliis suis et posteris vel, ipsi de communi Con- cordia inter se diviserunt, sicut legitur Genesis 1 3, de Abraham et Loth, quia Abraham dcdit elect ionem ipsi Loth quam partem vellet eligere et ipse reliquam acciperet; vel lex aliqua promulgata est a patre, vel ab aliquo electo ab eis in principcm, vel a communitate cui ipsa communitas commisit istam auctoritatem, qua \inquani\ lex Jiiit vel potuit esse, quod res tunc non occupata esset primo occu- pantis, et tunc postca diviserunt se super Jaciem orbis terrce, cum et units occupavit unam plagam et alius aliam. Sic patet ex prccmissis quod ad gubernatorem alicujus communitatis pro utililate reipublicce, necesse est habere leges juste et rede conditas, per quas talis gubernatio commode fieri poterit ad bonum commune, quod in ea intciiditur et ad gentcm ad quam applicatur, quce per illas leges est regenda, et oportet quod sint competcntes et pos- sibiles consuetudini patrice et tcmporis. Nam in XVI PR0CEM1UM JOHANNIS PERKINS. legibus aliquid danclum est consuetudini temporis et patriot et moribus hominum, quia secundum quod talia diversificantur oportet in ipsis legibus aliquam diversitatem existere. Ego igitur conjbrmans me legibus secundum morem consuetudinemque Anglice usitatis, pro mei modulo ingenii qucedam cullegi et apposui ad juvenum injbrmationem, et aliorum ad placitum legentium. Et quia in eisdem et consi- milibus casibus, diversa sunt judicia repugnantia partem eligibiliorem meam secundum mentem ma- nifestaxi : attamen si tu, Lector, aliquos casxis hoc in opusculo contra legem determinatos credideris, ut eos quadam in schedula cum auctoritatibus ra- tionibus que mei menti repugnantibus extrahas et impressajiat supplico, et ut Veritas rei magis cla- rescat in brevi tempore, Deo dante, aliam schedu- lam auctoritatibus rationibus que meam secundum mentem eosdem casus manu tencntibus impressam faciam, fyc. PERKINS'S PROFITABLE BOOK. CHAPTER I. Of Grants. [Preston's Siiepp. Touclist. chap Grant — Exposition of Ifeeds. Vin. Abr. tit. Grant. Bac. Abr. tit. Grant. Com. Dig. tit. Capacity — Fiat. Cruise's Dig. tit. Deed.] A l. Forasmuch as a grantor, a grantee, and a P. 13. H. thing to be granted, are requisite to a grant (a), fo< 1-+ - B First, must be shewn, what persons may grant and what not ; and of such persons as may grant, by what names they may grant : and then what per- c sons may be grantees, and by what names : and then must be shewn of the thing to be granted. And as to that, first, what things may be granted by deed, and what without deed : then, what things a man may grant or charge : and then, what things shall pass by a grant of others, Sec. D 2. And as to what persons are able to grant, Bract, lib.; and what not, it is to be known, that the grants cap- 5> (a) In a strict legal sense, a 'grant' is a conveyance erf incorporeal hereditaments, or estates not in possession, to a stranger ; and in this sense the word is used in contradistinc- tion to a feoffment, or other conveyance of corporeal here- ditaments ; to perfect which livery of seisin, or its equivalent is essential. Co. Litt. 172. a. ; 3 Sand. Uses, 25 ; Shep. 'J'. •228. But taken largely, a grant signifies ' any act or deed * iu-rcby any thing is granted or passed from one to another ; ' and it is used in this sense throughout the. present chapter. 1 GRANTS. of some persons are void ; and the grants of some persons are voidable by themselves, and their heirs, and at all times by those who have their estates. And the grants of some persons are voidable only by the grantors, during a certain time ; and the grants of some persons are void- able after their deaths, by their heirs, but not by the grantors, or any other person during their Jives, Sfc. H. 14 Hen. 3. The grants of all persons dead in law (b), as M 2Ric s m onks, friars, and canons professed, and such Estoppe/,28. like, are void, except they be made by the sove- e'Jf. CU ' reigns of such houses, or by matter of conclu- (£>) The absolute disability of civil death appears conse- quent to 1. Entry and Profession in Religion, Co. L. 132. b. ; but since the date of the Reformation, the disability from this cause has necessarily ceased ; for even anterior to that period, the law did not notice foreign profession. 11. & B. Co. Litt. ib. — 2. Attainder of Treason or Felony. (The stu- dent will recollect conviction is bv confession or verdict, but attainder only by judgment. Co. Litt. 390. b. ). But quaiv of this ? For although it is repeatedly said by Lord Cuke, Blackstone, and other text writers, and obiter in many cases, yet an attainted felon may be a grantor ; post. s. 26. Shop. '] . 232. 7. (Co. Litt. 42. b. contra) ; a grantee, though onl_y to the king's use; post. s. 26. 48, Co. Lilt. 2. b. 13. a. n. 7. ; 2 Prest. Conv. 263 ; a devisee ; Com. Dig Detise, I.; and is subject to arrests or execution, Banyster v. Trvssel, Cr. Eiiz. 516; and these capabilities negative the supposition of his civil death, and prove that by such attainder extensive disabilities only are incurred.— 3. Abjuration (f the Realm. Co. L. 13. a. 92. b, 133. a. Com. JJig. Abjuration, C. 2. This disability has also ceased since 1 Jac. 1. c. 25. s. 34. and 25 Jac. 1 . c. 28. — And 4. Banislunentj'or Life by Act oj Parlia- ment. Co. L. 133. a- And this, it is conceived, (for it is believed there is no decision upon the point,) must extend to the case of transportation for life, under the direct authority of auy stat. (as 1 Geo. 4. c. 117); but not to transportation for life under a condition annexed to the Royal pardon to one convicted or attainted ot felony, &c. GRANTS. 1 sion (c), or otherwise, in special cases ; and there- fore, if a monk, friar, or canon professed, who is not sovereign of the house, grant an annuity by deed poll (d), the grant is void, notwithstanding that he be deraigned (e) afterwards, or made sove- reign of the same house, or of another house, or created a bishop, fyc. 4. And if a commander of the hospital of St. P. 10 Ed. 4, . John of Jerusalem in England, grant a rent charge Trespass, ■ issuing out of the land which he hath in command, unknown to the prior, the grant is void, Sec. But a monk or friar, Sec. by command of the abbot or prior, who is sovereign of the house, and in his name may make a grant (J" ), and it shall be good, • if it be delivered as the deed of the abbot or prior, with his assent, Sec. If/. S. * being seised of an r 2 -| acre of land in fee, ( join with a monk in a grant II. SHen.s, of a rent issuing out of the same acre, this is a on """• 1 -- void grant as to the monk, but good against J. S. 5. But if a monk or other religious man be a fanner of the king ( g), and make sale, or bargain M. 2 H. 4. Ibidem, 18. T. 5 E. a. (c) Conclusion, is the same as an Estoppel; which is jhidem' a fi defined to be, " A bar to one to say or plead the truth." tt ' ^ ' (2 Rep. 4. b. ; 4 lb. 53. a. b.) ; and all parties and privies 1- . in estate or interest are bound by it. (lb.) — for the dif- ferent kiuds of Estoppels, and the principal rules relating to them, vide Co Lilt. 352. a. b. (r/) J5ui whether by deed-poll or indenture is immaterial: the grant is void from the incapacity of the grantor, and not of the instrument. (v) Deraigned, i e. freed from his religious order and profession. Vide Cowell's Interpreter, voce Deregn. (f) For in this case the monk, &c. acts merely as the attorney of his superior ; and he is capable to be an at- torney. Post. s. 185; Co. Litt. 52. a. (g) Id est, a farmer of the revenue : for at an early period, when the king's revenue consisted principally of the produce B 2 2 GRANTS, of a thing concerning his farm, such sale or bar- gain is good ; and upon that he shall have a Quo minus against the vendee or bargainee in the Ex- chequer, §c. 6. And if a feme covert grant an annuity by matter in deed, the grant is void. And if a man be seised of land in right of his wife, and she grant a rent charge issuing out of the same land, M 9 Ed. 3, Feoff- unknown to her husband, this grant is void ; rRofcerts v Pier- and so Jt is altnou g n he know of Jt ' if il be son, 2 Wil». 3. made and delivered without his assent, or with Fahthoniev. Bla- hig assent if j t be made in the name of the outre, o 31. ex. i>. . 1. 1 1 1 i /7\ 73 .] wife, and not in the name of the husband (A). And notwithstanding the husband were abroad out of the country, wandering at the time of such grant made and delivered, so that it was not known whether he were alive or dead, yet such of his demesne lands, and his feudal casualties, which were un- certain in amount and troublesome to collect, it was usual to grant or farm them to different persons, at a fixed annua! rent : and those grantees being considered as the kind's officers, were probably allowed to address his courts in that character, without regard to their private and individual capacities. Stat, de Scaccario, 51 Hen. 3. c 5. s. 1.4 ; Gilb. Treat. Exchequer, 12. 69. 148. (ed. 1758:; Madox's Hist. Exchequer. (Ji) But if the wife make such grant by fine as a feme sole, it is voidable only, and will bind her and her heirs unless avoided by the husband during the coverture. Post, s. 20 ; YVils. on Fines, 23 ;. 1 Prest. Coin. 255, and autho- rities cited. And it' the grant be by deed only, though void at law, yet if made with the husband's assent, and for a valuable consideration, a court of equity would compel him to give legal effect to the grant as against himself :( Francis's Max. of Equity, M. 13. p. 55. c. 2) : for such a form of gratit could only be adopted from mistake (i.e. ignorance) or fraud ; either of which is a ground for relief in equity. 1 Fonblanque ouEq. 115. 121. (4th ed.); 1 Madd. Chan. 47. 75. 255. GRANTS. 2 grant is void if he be living, insomuch that if the grantee, by force of such grant, enter into the land and distrain, the husband at his return shall have a writ of trespass for this entry and distress. 7. But if a feme sole be an executrix, and H. 7 Hen. 4, take a husband, if all the debts of the testator -o"i«e.,. are satisfied and paid, she may deliver the lega- Ibidem, 119. cies of the testator out of his goods in spite of c'jJ^H'Jo her husband. And so also if the debts and lega- } 3 Hen 6 cies of the testator be satisfied and paid, she fo. 4. may give of his remaining goods to pray for his soul («'). But such delivery of the legacies, or such gift to pray for the soul of the testator, by the wife, before his debts are satisfied and paid, is void, insomuch that the husband shall have for that a writ of trespass ; for it is but a wasting of the goods of the testator, if his remaining goods will not extend to satisfy his debts, fyc. 8. And if there be a difference betwixt a bus- T. 4.7 Ed. 3, band and his wife, by reason whereof certain lands f ? - 20, and J _ . Account, 4-2. of the husband are assigned to his wife by his 17 Hen. 0', friends, and by his assent, and she grant a rent f °- 8 ; P- . , Danby. charge, to be issuing out of the same lands, to a stranger, the grant is void, eye. (k). (i) The very reverse of this is now the law. If a feme covert be an executrix [i.e. has proved the will, 'toller's Executors, 91. Com. Di^. Administration, J).) her husband can dispose of the. testator's property without her assent, but she cannot do so without his concurrence. Toller's Execu- tors, '241, -2, and references. (k) All the legal disabilites of a married woman flow from the one grand principle, that bv marriage the legal existence ot tiie wife is merged in that of her husband, and they be- B3 2 GRANTS. 9. And if a feme sole, seised of land, cause a deed of grant of a rent charge, to be issuing « out of the same land, to be made, and deliver the deed to a stranger as an escrowl, upon condition that if the grantee go to Rome, and return before the feast of Easter then next following, then the bailee shall deliver the escrowl as her deed to the grantee ; and the woman marries a husband, and before the feast of Easter, and during the cover- ture, the grantee goes to Rome, and returns, and II. 27 Hen. the stranger delivers the escrowl to him * as the a 6 \. - .. deed of the woman; this grant is good, notwith- L - 1 standing that the husband were seised of the same land in right of his wife, before such grant took effect as the deed of the woman ; at which time she was covert of the husband ; and the cause and reason is, because to some purpose it 1 shall have relation to the time of the first de- livery ; that is, when it was delivered as an escrowl : insomuch that if the wife in the same case had enfeoffed another of the said land be- come but one person in law ; therefore she alone is incapable of doing any legal act during the coverture, and consequently her deed is void The exceptions to this rule are very few in number. The law of husband and wife has been treated with the attention which its universal importance demands. It is analyzed in the. clearest manner in Comyns's Digest, tit. Baron anil Feme, and in the Abridgments of Viner and Bacon, under the same title. The leg;d doctrine upon the subject is condensed in Bingham's Law of Infancy and Coverture; and every branch ol the subject gone into by the late Air. Roper, in his Treatise on the Law of Husband and Wife. And the most important practical parts are embraced by Air. Butler's perspicuous notes, (Co. Litt. 325. b. n. 2. and 351. a.) on the husband's interest in his wile's real and personal estate,. GRANTS. 3 fore the condition performed, and afterwards the grantee had performed the condition, and the stranger had delivered the escrowl as the deed of the woman to the grantee, the feoffee should have holden the land charged, fyc. because at the time of the delivery of the deed as an escrowl she was sole. 10. But in the said case, the grantee shall not have any rent by force of the grant, before the last delivery ; that is to say, when it took effect as the deed of the woman, and so to such purpose it shall not relate to the first delivery, scil. when it was delivered as an escrowl, 8?c. 1 1 . But in the same case, if the woman had M. i H. 5, been married at the time of the delivery of the 0bil S att0 "y deed as an escrowl, and her husband had died, and the grantee had performed the condition, and the stranger had delivered the grant to him as her deed ; yet the grant had been void to charge the woman ; causa patet (I). See more of this in the chapter of Deeds ; and so it appears that some grants of some persons are void, $c. 12. Some grants of some persons are voidable 40 Li. Ass. by themselves, by their heirs, and at all times by *' 44 ! W; those who have their estates. And as to that, verture, pi. it is a common learning, that all such gifts, grants 4°- 34 L 'b. ° ° ° Ass. pi. 10.] (I) Courts of equity recognize tlie separate existence of husband and wife, and for many purposes livat InT as a feme sole, 'this is the case, more particularly as regards property given for her separate use, for ol this and its produce, unless restricted by the terms of the gift, she has the uncontrolled disposal for all purposes. The cases upon this subject are collected, and their result stated, in 1 Madd. Chan. Tract. 470-477. B4 Ill Illlli'L 3 GRANTS. 7 Ed. 4, or deeds made by an infant, as do not take effect fo. 5. p. ky delivery of his hand, are void. But all gifts, [Lloyd v. grants or deeds made by an infant by matter in Gregory, deed, or in writing, which take effect by delivery 502!] °f his own hand, are voidable by himself, and his heirs, and by those who have his estate. 13. And therefore, if an infant make a deed of feoffment, and a letter of attorney to a stranger to P. 18 Ed. 4, make livery of seisin, and he makes livery of seisin r°F N P. D y f° rce thereof, he shall be taken for a disseisor. 192. G. note And if an infant being seised of a carve of land, »"J grant a rent charge to be issuing out of the same by deed, and the grantee distrains, he shall be punished as a trespasser, although the infant de- livered the deed with his own hand. But in such case neither the infant, nor his heir, nor his feoffee? can against such a deed in pleading say, that he did not grant by the deed, for the deed is not void, but is voidable ; as by saying, that the grantor was within age, 8fC. at the time of the grant, SfC. (t»). (m) A diversity of opinion exists ujon the position as- serted in the preceding section, and illustrated in this. In conformity with the text it was decided in \Yhitt : nghaiu's case, (8 Rep.) in which the subject is much descai.ted upon, that the feoffment of an infant, if m;ide in person, is voidable only, hut if by attorney, absoluiely void ; and this has always been considered unquestionable. In the well known case, Zoach v. Parsons, 3 Burr. 1 794, the Court of K. B. thought the law to be as laid down by Perkins, and accordingly adopted his distinction between such grants and deeds of an infant as do and do not take effect by delivery of his hand ; and in conformity to it, but also upon the additional ground of apparent benefit to the infant, decided that his conveyance by lease and release was voidable only, and not void. This decision (which has not been acted upon in practice) is no- ticed by Mr. Margrave, Co. Litt. 51. b. n. 3. and has been the GRANTS. 3 14. If an infant give a horse, and do not de- Ibidem, liver it with his hand, and the donee takes the i , .V ' Kelease, 8. horse by force of the gift, the infant shall have a writ of trespass. But notwithstanding that maxim, if an infant be an executor, the payment of the debt of the * testator by him is good and effectual, * r -, fyc (»)• And an infant shall be bound by all P. 18 Ed. 4, acts done by him during his nonage, which are 2_t " subject of strong animadversion by Mr. Preston, 2 Convey. 248, &c. In v. Handcock, (17 Ves. jun. 383. Nov. 1810), however, Lord I hancellor Eldon distinctly admitted the doc- trine and authority 01 Zouch v. Various: and the present learned reportei of the court of Common Pleas in a note prefixed to his Essay upon tiie Law of Infancy, gives some powerful reasons in support of the decision of the court of K. 1). in that case. ling. Inf. Pref. 1 ( ov. Pow. Mortg. 209. The stat. 7 Anne, c. 19. enabled infant trustees and mort- gagees to convey estates vested in them in that character, under the direction of a court of eqiuty. Upon this stat. see 1 Madd. Chan. Pract. 357. But ir has been recently re- pealed, and new and improved provisions to ertect the same object made, by the late slat. 6 Geo. 4. c. 74. which see. (n) By this is meant a payment by an infant above the age of 17 ; (5 Rep 30. in Prince's case ;) at which age by the common law infants are capable of acting as executors; but by the stat. 38 Geo. 3. c. 87. s. 6. where an infant is sole executor, administration with the will annexed shall be grant- ed to the guardian of tuck infant, &c. until be shall attajn 21 when and not before probate shall i>e granted to him. from the act being thus restricted, it appears clear that \\ here an adult and an infant above 17 are joint executors, the latter is still entitled to prove the will and act as executor while under 21 ; although it is apprehended the death ol his co-executor within that period, would bring the case within the spirit- if not the letter of the act, and authorize the sus- pension or revocation during his minority of the letters of probate granted to him, and a giant of the administration unlil his lull age. It must be observed that such acts on. y of an infant executor as he is bound to do, are absolutely good ; and that such as would amount to a devastavit in an executor arc not binding upon the infant Vide Russet's casv?, 5 Rep. 27. b ; Kniveton v. Latham, Cro. Car. 490 ; Toiler on Executors, 356. 4 GRANTS, for his advantage, except in some special cases. And therefore, if an infant at years of discre- tion (o) make a bond for his necessary meat and P. 26 Hen. drink, or his necessary apparel, or his tit schooling, 6, Grant, j^e s h a u not avo i(i the same; causa patet ; and so J2. ... it shall be in like cases. 15. And a grant made by an infant of the age of fourteen years of a free chapel shall be good and effectual, because he himself cannot have it- Qucere, If the infant in such case be within the age [Fr. text, forsque de age] of fourteen years, what shall be done because he hath not discretion. And an infant at the age of fourteen years may present to an advowson, and it shall be good ; because he himself cannot have it ; and also be- cause after the six months past the ordinary shall present for lapse, 8?c. ( p). 8 Ed. 4, 16. All feoffments, leases, gifts or grants, made !° //f P ky duress, are voidable, by the parties themselves, by their heirs, and by those who have their estate, fyc. but not void. And therefore, if a man seised of lands, grant a rent charge by duress, and after lease the lands for life or years to a stranger, and the grantee distrains for rent (0) The age of 14 is, in law, the age of discretion ; F. N. B. 202. \1.\ Co. Lilt. 247. b. but even then the bond must net be in a penalty, uor entered into by an infant living with and maintained by his parent ; for in either of these cases it is void. H. & B. Co. Litt. 172. a. ; Yiner's Abr. Enfant, C. ; Com. Dig. Enfant, C. 2 ; Bainbridge v. Pickering, 2 Blacksf. R. 1325. Hunter v. Agnew, 1 Fox & Smith, 15. (p) A difference of opinion formerly prevailed as to this ; but it has now been long settled, that infants of any age may present to a benefice. Yide H. & B. Co. Litt, 89. a. n. 1, and authorities there cited. GRANTS. 4 in arrear before or after the lease, the lessee shall have a writ of trespass ; and so shall the ' heir of the grantor, if the land hath descended to him. But if they will have a writ of trespass, they must be seised in deed of the land or tene- ments where the trespass is supposed, at the time of the trespass done, fyc. 17. If a man seised of land, give it in tail by p. 41 Ed. 3, deed, and make a letter of attorney to make Feoffment, livery of seisin, and all is done by duress of im- prisonment, and livery of seisin is made by force thereof, this is a disseisin to the donor : but that doth not prove, that the deed of feoffment, and the letter of attorney are void, for then the donor might traverse them, and that he cannot do, fyc. And know, that the imprisonment ought to be made to procure the making of the deed, fyc. 1 8. And therefore if a man be imprisoned 8 Lib. Ass. upon an execution of a statute merchant, a grant P 1 ' 2 -> made by him to a stranger, that he may assist in T. 11 Rica, his deliverance is good and not voidable, because Duress, 13. he was not imprisoned for that purpose. And if a man threaten to murder me if I do not grant to him an annuity, and for fear of death I grant it to him ; now this grant is voidable. But if a man m. 7 Ed. 4. grant an annuity for a threat of carrying away/® or ' 9K his goods, this grant is not voidable for such threat, because he may have an action to recover them, if they be taken, Sfc. 19. Some grants of some persons arc voidable M. 18 Ed. 4, only by the grantors, during a certain time; 1 "" 13 ' and therefore, if an infant grant a rent by fine, this grant is voidable by himself during his b6 GRANTS. * [5] nonage by writ of error ; but if be do not * avoid M. 7Hen.4, i t during his nonage, it is good for ever. And 17 Lib. Ass. although be die during bis nonage before he pl- '7- bath avoided it, yet his heir shall not avoid it. Qucere, If the conuzor die depending the writ of error (q). Ante, s. 6, 20. And if a man be seised of land in right of note (ft.) hj s w jf e> ant i sne as a feme sole without her husband, grants a rent by fine to be issuing out of the same land, now this grant shall not bind him during the coverture. But if he die before he and his wife reverse the fine by error, she shall be bound by this grant, Sec. 39 Hen. 6, 44. Lord 2 x g ome m-ants of some persons are liayui. 315. [Ihompson . D r v. Leach.] voidable after their deaths by their heirs, T. 12 Ed. 4, but not by the grantors themselves, or by any iQ rritt otner persons during their lives; and therefore, • v - 4°5-J if a man non sance memories being seised of land, grant a rent, issuing out of it, in fee, and die, and his heir enters, and the grantee distrains for the rent in arrear, the heir shall have a writ of trespass. But if the grantee distrain in the life of the H. 39 Hen. grantor, for the rent in arrear, the grantor shall ' °' 42 ' not have a writ of trespass, for he cannot avoid his deed by disabling himself, eye. (r). (q) The fact of infancy can be tried only during its conti- nuance, by inspection of the judges. Co. Lilt. 380. b. ; Hun- gate's case, 12 Kep. 182. And therefore, If the infant's ace be inspected and recorded, (but not otherwise,) and he dies before judgment on the writ of error, his heir shall reverse the fine. Kekeuich s case, Co. Litt. 131. a. ; and see Cruise's Dig. tit. Fine, c. 5. s. 26. Butler's n. 2. on Co. Litt. 247. a. ; and 1 Prest. Convey. 252. (r) A brief history of the origin and progress of the ride, that a man shall not be allowed to stultify himself, or, in other GRANTS. 22. But if a man being of good memory 25 Lib. Ass. make a charter of feoffment of certain land ,V'" 4 j., L '' whereof he is seised, and a letter of attorney to make livery of seisin, but before the delivery of seisin, by some sickness he become paralytic, so that he is mute, and by signs which he makes, it appears that livery of seisin shall be made, and therefore it is made, that is a good feoffment. 23. But if a letter of attorney to make livery of seisin of certain land, be made by a man of words, to plead that he once laboured under the affliction of insanity, is {riven in 2 Bl", Com. 291-2. Absurd as this rule may appear, it is still law : for although, even in tbe time of our author, it was strongly argued against, ( K. N. B. 202. d.) yet in Beverley's ea. 4 lAep. 123, and Stroud v. Marshall, Cro. JLliz. 398, it was confirmed ; and in the latter case, Fifzherbert's opinion was expressly denied to be law. The late Mr. Powell has argued very strenuously to prove, 1 ot only the existence but propriety of the rule: (1 Contr. and Agreer.i. 11 1029): his strongest reason is, that persons might feign this disabi- lity. The reader must recollect that this rule does not neces- sarily imply the deeds of a lun; tic are hot void, but only prevents their being psoved so by tin- grantor m a particular mode of proceeding. It is accordingly said ( **ngd. on Powers, 402-3. 3d ed.) to be established, that the feoffment with livery of seisin of a non compos mentis is voidable only ; but his sur- render, bargain and sale, or other inn, ten, 1 assurance, abso- lutely void, (by the case of Thompson and Leach, 3 .Mod. 304, reported also by Ven'ris, Satk. Corny ns, and others), and tiiat the consequence ol this is the distinction which seems to have, been taken in Yates v. Br. •■;/, 2 Stra. 1104, that a non compos mentis may himself avoid his innocent deed (hut not a feoffment or matter of record), t y pleading ' non est factum" specially (generally, it seems, would now be sufficient, see Thomson v. Hock, 4 M. 5-: S. 339). and giving the lui evidence. And note, as an exception to the rule, a man may pkud his own insanity, to avoid the operation ol a fine levied against him, and by which his right would otlier.v se be barred. 4 Ilcp. 125. b. The stat. 6 Ceo. 4. c. 74 (referred to in note (m), ante*, provides lor the conveyance of trust and mortgage estates \ cited in lunatics or idiots. •5 GRANTS, unsound memory, and the charter of feoffment of the same land was made before, when he was 9 of good memory, and his understanding is after- wards restored, and then livery of seisin is made by force of the letter of attorney without other assent of the feoffor, and he dies ; now his heir may enter upon the feoffee (■•>), hut the feoffor himself in his life cannot enter. T. 12 Ed. 4, Entire 24. But matters of record to which a man \l i-Ed 1 pi qq °^ unsoun( l memory is party, his heir shall [Co. Litt. 247. a.] not avoid because his father, fyc. was non 1 7 Lib. Ass. sance manor ice, Sfc. And therefore, if a man g pi. 17. non sunce memories grant a rent by fine, or be bound in a recognizance, require him at five successive county courts to appear under the pain of being outlawed. Cuwell, voce Exi- gent; 3 Bl. Connn. 283. G G HANTS. indictment, as to lands and tenements ; and so shall an attainder by confession. 41 Lib. Ass. 29. But all the attainders as to goods shall P |3jj" 6 relate only to the judgment given ; so that a gift fo. 20. made of goods by such a man before the judg- ment is good. Also there is an attainder by act of parliament. And a man outlawed in trespass may make a gift of his goods, but it is void to bind the king, though good to bind the party. Litt. chap. And a gift, grant or feoffment, by the king's vil- p 1 „,/]?€% lain is void to bind the king, quia nullum tempus Villeinage, occurrit regi (u) ; but it is good to bind the party himself. But a gift of the goods of the villain of a common person, made by the villain, before seisure by his lord, is good against all persons ; for the lord's title to the goods of his villain com- mences only by the seisure, and his title in the lands of his villain begins by his entry, and to the rent, reversion, common, or advcftvson of a church [of the villain] by claim ; and to common, issuing out of the land of the lord, by extinguishment ; H. 14 Hen. and to a rent issuing out of the land of the lord, °> 2 ~- by retainer or extinguishment : and if my villain have a villain, I cannot have him before seisure. Natura 30. And yet if lord and tenant be by knight's rtv ' service, and the tenant die, his heir within age, and a stranger take him away, the lord shall have a ravishment of ward, notwithstanding that henever (u) Since the stat. 9 Geo. 3. c. 16. (commonly called the Nullum Tempus Act), this is no longer a universal rule ; tor by that act the crown is disabled to implead fur any manors, &c. where the right hath not rirst accrued within 60 years betore commencing the proceeding: to recover the same. See a ju- dicious observation upon this act, 1 Prest. Abstr. 31. GRANTS. 6 seised the ward ; and the reason is, because the h title of the lord in the ward begins by the death of the tenant, and the body of the infant is transitory. But the lord shall not have a writ of ejectiune custodice for the land before his entry, because the land is not transitory, fyc. 31. The grants of divers persons cannot be good in perpetuity without the assent of others by way of grant, confirmation or otherwise, 8fC. As the grant of a dean without the chapter, the A grant* of an abbot without his convent, and the * [7] grant of a mayor without the commonalty; and so ' , 21 ** d< ■+' it shall be of a master of a college ; and of all 1. 1 Ed, 5, others which are bodies politic, and have a com- (u - 5« mon seal(x). 32. And as regards all such of those recited as have a joint possession with their head, as the chapter with the dean, §c. Grants made by such b heads to charge the possession, which they have 3 h. 7, fo. in common is void to charge the beasts of other 1U (x) From the commencement of this sec. it might be in- ferred that the partial or temporary grants, of the head of an aggregate corporation alone, were good ; this however was not generally the case. W here the head was solely seised of a distinct possession, so that he might have^nade a dis- continuance, his grants were necessarily binding upon himself during his time. Litt. G52. 657 : Co. Litt. 341. b. 34a. a ; but where the corporation aggregate was jointly seised, the acts of the head alone wereas those of a stranger; for hi-> aliena- tion in lee was then a disseisin, (Co. Litt. 341. b.) and migrri consequently have been avoided in the same (banner, and this is still the law. And now (by slat. 13 Eliz. c. 10.) all spiritual and charitable corporations sole and aggregate are disabled to alienate to bind their successors for a longei than twenty-one years or tluee lives in pos.s< S$i iD, or ( bj 1) Elu. c. 1 i.)as to houses in cities or corporate towns, for forty years in possession. 7 GRANTS. persons than themselves with a distress ; as if a dean grants a rent charge issuing out of land which he holds in common with his chapter ; now by this grant, the cattle of the chapter are not liable to distress ; and in the same case, if the dean be created a bishop, the grant is determined as to charging the possession. But if the grantee hath not avowed upon the land, as upon land chargeable with his distress, in a court of record, he may charge the person of the bishop in a writ of annuity, unless the grant be made under a special proviso that it shall not charge his person, $c. (y). H.39Ed.3, 33. But if an abbot grant a rent charge in his fo. 11. L Q. name without the assent of the convent, 3 1 ] and is deposed, and another monk is made abbot, and he who is deposed is created a bishop, now the grantee shall not charge his person in a writ of annuity ; because when he was deposed he was a dead person in law, and not able to bring any action, or to be sued in such case ; and so by his deposition the grant was determined as to •20 IT. 6, charging his person, and also as to charging the M^fiTTH possession. But if the grant had been by fine, Abbe, 8. ' the possession should have been charged (z). But when the'dean was created a bishop, he remained always of ability to be sued, fyc. And if the abbot after the grant, and before he was deposed, (;/) As to this right of electing between an annuity and a rent charge, and how such right is determined or prevented, see Litt. 219,220. and Co. Comm. 144. b. to 146. b. (s) This is not now law. The fine would be within the slat, of Eliz. before referred to, and might be avoided by an}' of the successors of the conuzor. Co. Litt. 45. a. ; 1 frest. Convey. 257, and reftrences. GRANTS. 7 had been created a bishop, then the grantee might have well charged his person in a writ of annuity ; causa paid, SfC. 34. A grant of a rent charge to be issuing out p. q Hen. 7, of the glebe land by the ordinary only, is void fo - ^ • to charge the glebe land of the parsonage ; and f . 05. such a grant made by the patron solely is void, H - 3 1 to charge the possession of the glebe land ; but such a grant made by the parson alone is good to charge the glebe, during the time he is par- son (a) : but if the parson resign his benefice to another, who is instituted and inducted, such grant is determined as to charging the glebe kind, $c. But perhaps the grantee may charge the person of the grantor in a writ of annuity, fyc. 35. But the parson, patron, and ordinary by their grant, may charge the glebe land in per- H. i,3[Q. petuity. And the abbot and convent may charge 3'] Ed* '» 1 J . . . Grant, go. the lands of their house in perpetuity ; so may (a) Incumbents of benefices with cure were deprived of even tliis limited power, by 13 hliz. c. 20. s. 1. and it is doubt iul whether this part of that act is not still in force, as the whole act does not appear to be repealed by 57 Geo. 3. c. 99. s. 1. Ihis point is fully discussed in vol. 2 of Bythe- wood's Precedents. Willi regard to the doubt expressed by Perkins in the concluding sentence of this section, ii seems to be now clear, that if the grant v\ere for the life of the par- so::, and the grantee had never elected bj action in a court el record to take the rent as a rent charge, he might charge the grantor with it a* an annuity. Litt. 219 660 ; Fulwood and II '<;;-(/ (JJeywsrd'sca.) 2 Hep. 36, b.; Co. Liti. 146. b. 148. a. 349. a. ; Com Dig. Annuity A. 2. And it seems even al- though the grantee had so e ect* d ; hut lhi> i> more doubtful : and the point isnot now ol anv practical importance, since in modem practice such a grunt would not be taken without u covenant from the grantor for payment of the annuity; audi he might always be sued under this. 7 GRANTS. the dean and chapter, and the mayor and com- monalty, mutatis mutandis. And the patron and or- dinary in time of vacation may by their grant well charge the glebe land of the parsonage, SfC. (b). And divers other persons may grant who are not * [8] here * recited, nor mention made of them, fyc. H. 7 Ed. 4, oG. Now it is to be shewn, by what names such Xcedhatn persons as are able to grant, may grant. And as to that, know, that the name of the grantor is put in the deed but to make certainty of the grantor. And therefore, if the duke of Suffolk, by the M. 27 H. 6, name of duke of Suffolk, without his name of fo - 4- baptism, grant an annuity, rent, common, or re- version, Sfc. it is a good grant; because there are no more dukes in England of that name. And a grant of an annuity made by an abbot, by the name of the foundation, without his name of baptism, is good, if there be no other abbot in England of the same name of foundation, so as the certainty may be known who is the grantor. H. 39 Hen. 37- If father and son are of one name, and , o. 48. t ] ie f at ] ier g ran t an annuity by his name without any addition, this is a good grant ; for when there is no addition, it shall be intended the grant of the father. If the son in such case grant an annuity by his name without any addition, (it seems to me) such grant is good (c) : for if the (/>) With the exception of a mayor and commonalty, all the bodies lieie mentioned, in common with other spiritual and charitable corporations, are restrained from alienating, except t>3' specified leases, by the statutes 1 Eliz. c. 19. 13 Eliz c. 10. ;8 fciiz. c. 11. and 1 Jac. 1. c. 3. all of which are commented upon and explained in Co. l.itt. 44. a. ccc. (c) lhere can be no doubt that this would now be held good. And see Corn. Dig. i'aits, E. 3. GRANTS. 8 grantee bring a writ of annuity against the son, he cannot help himself by any means ; for if he deny the deed, it shall be found against him, fyc 38. But if John S. grant an annuity by deed, and the surname, scil. S. is in the deed, but not his name of baptism, this grant is not good (d). And if John S. grant an annuity by a H. 3 Hen. different name of baptism, viz. by the name of 'J? * 1 * 1 lien. 71 Thomas S. some think this grant is not good ; Feoffment, because the deed of Thomas cannot be the deed 3°- SSI. 15 tien. of John; for a man cannot have two names of 7i f . 13. baptism ; and so they conceive the grantor may well deny the deed. 39. And some are of contrary opinion ; for M. 9 E. 4, when they are at issue upon the deed, the plain- fo - 44- tiff may give in evidence the day, year and place, in which the grantor delivered it as his deed, fyc. and then the grantor hath nothing to help him, but to say, that his name is John, and not Thomas, and so deny his deed. Now they say, the plain- tiff may demur upon this evidence ; for inasmuch as the grantor hath not denied the delivery of the deed as his deed, they say, he shall be concluded from saying that his name is other than the deed supposes. Ideo qucere (e). 40. But if John S. recites by his deed that his M. 3 Ed. 3, Estop. 13a. ( t h e freehold shall not be in him be- * Till ^ ore n * s * a g reement - But if an infant hath 19 Ed. 2. a right, or title to enter into an acre of land, and »wer, 171. a granger enters to the use of the infant, now the freehold shall be said to be in the infant before his agreement. And so shall it be of a man of full age. And a man attainted of felony, murder, or treason, a clerk convict, a man imprisoned, the king's villain, a common person's villain, and an alien bom, may all be grantees. And a man out- lawed in a personal action, and bastards may also be grantees or purchasers ; but a bastard cannot be heir; nor have any heir except issue of his body begotten. 49. But if a bastard eigne (h) who is mulier in the spiritual law, continue in possession of lands M. iAEd.2 or tenements as heir to his father all his life, and Bastard, 28. die without interruption, his issue shall hold the Ass 1-0 ' same I an ds for ever against the mulier [puisne] ; M. 6 Ed. 3, and if such a bastard, after the death of his fa- ro 5 '9- spiritual law, and he dies seised of one acre of land in fee, and both the daughters, i. e. the bastard and the mulier enter into it, and occupy as one heir to their father, and the bastard dies seised without interruption, it is said, that her issue shall have the half of the acre as heir to his mother; tamen quare because the other sister did enter, Sfc. (k). (i) It appears clear that he shall not : for he could not do so without alleging the bastardy of his brother, and this he would not be allowed to do ; since it is a rule that no bastard eigne shall be bastardized after his death. Sir R. Lechford's Ca. 8 Rep. 105 ; Pride v. E. of' Bath and Montague, 1 Salk. 120; Com. Dig, Bustard, D. 2. (Jc) But this does not vary the case ; for the law in favou of legitimation will not udjudge the whole to have been in the rnulicr, who had the sole ri^ht, but in both. 8 Rep. 101 ; Co. Litt. 244. a. C 2 11 GBANTS. P. 5 Hen. 7, 51. And an abbot may be a grantee, and a Abbe. 6. dean and chapter, and a mayor and commonalty M. 19 Hen. * ' J ■> 6, Devise. 1. may be grantees; but a monk or friar professed, M. 21 Ed. 4> Sec. cannot be a grantee, except he be sovereign TO. 4. it • of th6'Tiou9e: but he maybe an executor with the assent of his sovereign ; and he may be a far- mer to the king, Sj-c. A man non compos mentis may be a grantee ; and divers other persons may be grantees, who are not here specified. 52. It is now to be shewn, by what names grantees may be. And as to that, know, that there must be always named one who is able to * [12] take by * force of the grant at its commence- H.32Hen.6. men t otherwise the grant is worth nothing. And teojfment, ...-,- & °_ . , Q q. therefore, it a man grant an annuity to the right (Q-)i5 H .7> heirs of John at Stile, who is living at the time Feoffment, n , , . , , . „ , . 30 - ot the grant, the grant is worth nothing; for there P. 11 Pvic.2, i s no t any such person [heir] at the time of the M. 10 Ed. 3, g ran t; since John at Stile cannot properly have Res. 40. an heir during his life. But if a rent charge be A ' j g granted to J. S. during his life, the remainder in Coke's fee to the right heirs of T. K., and T. K. is living ; opy. s. 35. an( j t j ie ( j ee j j g delivered to J. S. now the remain- der is good, conditionally, scil. if T. K. be dead when the remainder falls, and hath an heir, then is it good, otherwise not. And so, if land be leased for life, the remainder to the right heirs of J. S. who is alive at the time of the lease, fyc. And the reason is, that there is one named in the lease who may take immediately in the beginning of the lease. 53. But if a rent be granted for life to the right heirs of /. S. who is alive, the remainder to T. K. GRANTS. 12 now all the grant is void ; because there is not any person who is able to take immediately ; and the remainder can be good, only in respect of the particular estate, except in special cases, and so SfC. And if a man seised of a rent charge in fee> grant it to a stranger for life, and the tenant of the land attorn, eye. and afterwards by another deed the grantor grants the reversion of the same rent to the right heirs of J. S. who is alive, this grant is void, because there is not any person who can take it : but if J. S. had been dead at the time of the grant of the reversion, then the grant had been good ; and so know, that these words fright heirs J may be the name of the grantee, Sfc. 54. And if/. S. hath issue two sons, and a H. 1 Ed.3. T*u, 7. rent is granted to the first son of/. S. and not ^ L J° Ed> 3» , . . Feoff. 64. by any other name, it is a good grant if the Co! Liu. 3. a. deed be delivered, Sfc. : but if/. S. hath not any 39 Lib. Ass. issue, and a rent is granted to him who shall be the l>1- 20 - T J 5 Ed. 4. special cases. And therefore, if a man give to me s ' a horse, cow, bow, lance, or other such thing, fyc. such gift is good by word. And if a man give to me byword, corn growing upon the land, it is good. And if a man give to me a tree growing upon his land, it is good without deed. 58. But if tenant in tail give to me a tree h. i8Ed.4, growing upon the land, and die before I have cut £. 22. , , - ii... • i- 1 j r™e Choi- down the tree, and his issue enter into the land me i e y v p aXm where it is growing, if I cut down the tree, he shall tm >3 Bingh. have an action of trespass; because the tree is J annexed to the freehold, and by the [gift] in tail be- comes of the nature of the land : but it would be otherwise, if the donor of the tree had been sole tenant in fee simple in his own right, fyc. 59. But if tenant in tail give corn growing upon T. 4 Hen. 3. his land to me, and dies before I have severed the p"" ^ ' same from the land, yet I may sever the corn and fo. 1. take it ; for the executors of the tenant in tail should have had it. Go. The guardian in chivalry of the body and H io.Ed.3, land, may grant the wardship of the land without M r "j'^3" deed ; because it may pass by livery of seisin. [Q. Ed. 3.] And as to the body, some are of opinion, that it hrie J e ' 937* may be granted without deed ; for they say, it is C4 13 GRANTS. but a chattel, and the executors of the guardian shall have the body, §c. But that seems but little reason ; for if a rent-charge be granted to a man for years, and he dies, his executors shall have it ; and yet it cannot pass without deed. And it seems, the wardship of the body shall not pass without deed ; for it does not properly lie in livery of seisin, any more than a villain in gross. And a man shall have a writ of right of ward of the body, and to the same writ non-tenure * [14] is a good * plea, as to the body; and in the same 1 Hen. 6. wr j t voucner lies for the body; which prove, that Non tenure, . . ^ / 1. it is not a personal thing ; and so it seems it cannot be granted without deed ; tamen qucere (m). P. 10 Ed. 4, 61. If a man seised of land, lease it unto a Lrmnt, 24. s t ran g er f or ]if e? t] ie remainder to J. S. in fee, this is good without deed (n) ; because it passes by the livery of seisin : but the reversion of land (m) It seems it did pass without deed ; for the wardship of the body was an original chattel during the minority, de- rived out of no freehold ; and therefore as the law created it without deed, so it might be assigned over without deed. Co. Litt. 85. a. and Sir. Hargrave's note (a) there. But Shep. T. 231. is contra. (m) But since the stat. of frauds, 29 Car. 2. c. 3, this grant would be void altogether without a deed, or at least a writing signed by the grantor. By the provisions, of that act no greater estate or interest in lands or hereditaments, than leases not exceeding the term of three years from the making thereof, and whereupon the rent reserved shall amount to at least two third parts of the full value, can be created, nor any interest in lands or hereditaments assigned or surrendered without deed or writing. For fuller information upon this, the student must refer to the statute itself (with valuable notes, 1 Evans' Stat. P. 2. CI. 1. N° 17), with which he cannot be too earl y or too intimately acquainted, and which must always be borne in mind while perusing our author, or any other writer before the statute. GRANTS. 14 cannot be granted for life, in tail, or in fee, with- 1 1 Hen 4. out deed : but the reversion of land may be granted fu * 3- for years without deed, fyc. But a rent, common in gross, advowson in gross, and a villain in gross, cannot be granted for years, for life, in tail, or in fee, without deed, except in special cases ; so is it of estovers in gross, Sec. 62. But a use may be sold without deed ; and T. 7 Ed. 4. yet it shall descend to the heir of cestuy que use, " p ' 5 * if it be an inheritance in him ; but the reason is, because the sale is but a contract ; and a house or land may be sold without deed, fyc. And if cestuy que use of a reversion, will, 8jc. that his executors M. 19 Hen. shall sell the reversion, and dies, now his executors ?: "^ 3> . j H. 21 Ld.3, may sell the reversion without deed. And a rent Nuisance, 1. may be granted by one coparcener to another M * ' J? en - upon partition, without deed, c\c. Qucvre, if the p' 2 iHen.7, parson of a church may grant the tithes of his fo - 2 3- ^ j • , , M - 9 Ed. 4. parsonage tor years, rendering rent, without deed. Feoff. 91. It seems to some he cannot ; for they say, although when tithes are severed they are but chattels personal, yet to the parson of the church they are as his freehold, fyc. (0). 63. If lord and tenant be of arable lands by fealty, and the service to render the tenth sheaf when the land shall be sowed, the lord cannot (0) A parson cannot lease or grant over his tithes to a stranger without deed, even for a single year, and therefore independently of the Stat, of Frauds. Shep. T. 230. Eaton v. Sherivin, Skin. 113.4 Bac. Ahr. Leases, E. 2. But it seems he may to his parishioner for years certain, (but now by the stat. not exceeding three), because this is in the nature of a composition or agreement for their retainer by him who ought to pay them. lb. } Toll, on Tithes, 225. c 5 14 GRANTS, grant this service for a term of years without deed ; and yet when the sheaves are severed they are but personal. The parson of the church may take his tithes when they are severed from the nine parts fyc. : but the lord cannot take such services when they are severed, without the assent 13 Ed. i. of the tenant, fyc. And there is a writ de advoca. c. 5» s- 4« decim. Sfc. as appears by the statute of West. 2. cap. 5. which begins, De advocationibus Eccle- siarum, Sfc. in the end, fyc. M.4 Hen.7, 64. A body politic, as a mayor and common- P iq*r?c2 a ^' § c ' cannot ma ke a lease for years of lands, Estop. 282. whereof they are seised in the right of their cor- Abb 4 ' P orat ' on 5 without deed; the same law is of their M .37 [Hen . gift of chattels personal, mutatis mutandis, fyc. But '3 & a l ease f° r years made by an abbot is good with- out deed, during the time that he is abbot ; and a gift of chattels personal made by an abbot is good for ever without deed : And also his successor shall be bounden by a recognizance made by him : but otherwise it is of a deed inrolled, fyc. * fi^l 65. * Now is to be shewn of the thing to be H.i4Hen.4, granted or charged : And as to that, it is a stop. 109. common learning in the law, that a man cannot grant or charge that which he hath not : And therefore if a man grant a rent charge out of the manor of Dale, and in truth he hath nothing in that manor, and after he purchases the same 10H. 6, fo. manor, yet he shall hold it discharged. Also a -u Lib Ass man cannot charge a right only ; for it shall be pl. 24, a good plea for him to say against such grant by rsh^ 't 4 matter in fait, that he had not any thing in the 2 43-4] l an d at the time of the grant : but in the same GRANTS. 15 case, if the grant had been by fine executory, the law is contrary. 66. And therefore, if a man grant the rever- ■ion of land in which he has nothing, by fine 1 1 Hen. 4, executory; and afterwards he purchases the re- l " version, now the grantee shall enter when the reversion falls, or shall have execution thereof by a scire facias. But if two men join in a grant of a reversion by writing, and one of them has nothing in the reversion, but the whole reversion is in the other, and the particular tenant attorns, it shall be called only the grant of him that had the reversion ; but if the grant had been by fine it should have been otherwise. 67. If there be lord and tenant of three acres m. 7 Ed. 4. of land by fealty and twelve pence rent, and the Grant > 1 9- lord grants the services of the third acre to a stranger, it is a void grant, notwithstanding that it was by fine. If husband and wife hold one acre of land jointly of J. S. for their lives, and J. S. H. 13 Ed.3, grants the reversion of the acre of land which the ^ rant > 6 3- husband solely holds of him for life, and he solely does not hold any part of him, this grant is void. 68. But if a man grant the reversion, Omnium t. 5 Ed. 3, tenentium suorum, tain libcrorum quam nativorum, Grant, 98. qui tenent ad ierminum vitce vel annorum, by this m. 7 Ed. 4, grant all such reversions as he has shall pass, with fo - '7- the attornment of the tenants, as well as if the tenants had been recited or named. And if lord and three jointenants are, and the lord grants the services of one of them to a stranger, this grant is void, although the same tenant attorns and survives his companions, for attornment cannot c6 15 GRANTS. make a bad grant good ; but it sball be otherwise by way of release. 69. And therefore, if lord and two jointenants are, and the lord releases all his right to one of them, this is good, and shall enure to them both ; .for one of them only does not hold of him ; and it will be prejudicial to no person but the releasor himself, that the services shall be extinct by the [Co. Litt. release : and a deed shall always be taken most 4 ' '- 1 strong against him who made it, SfC. If lord and tenant be of three acres of land, one white acre, and two other acres, and the lord grant to the tenant by deed, that he will not distrain in white acre for his rent and services, this grant shall not * [16] enure to determine the seignory* in any part, but shall enure by way of covenant ; so that if the lord distrain in white acre for his services, the tenant shall have a writ of covenant (p). M.3 [Ed.2. 70. If a man hold land of J. S. by fealty and sur U stat ' su ^> as °f ms manor °f Dale, and J. S. is also 14. (p) The law here laid down applies to a case of frequent occurrence in modern practice ; a covenant by a jointress not to distrain upon a certain part of the estate, on which her jointure rentcharge is secured ; this is gcnerall}' considered to take effect as a covenant. A doubt, however, has been ex- pressed, (H. & B. Co. Lilt. 147. b. n. (*) whether such a covenant does not amount to a release, and consequently operate to extinguish the whole rent ; this doubt it is con- ceived cannot be sustained ; for, although a covenant, a per- sonal obligation only, niay amount to a release even of right in land, where the intention requires it ; vt res magis valeat ; it would be contrary to every rule of construction, to give it this unnatural operation where used expressly to avoid the effect of a release. In the case whichgave rise to the doubt, (Noy's R. 5 ; Bac. Abr. Release, A. 2.) there was, as in the text, a grant, as well as covenant, not to distrain ; and this word might possibly be the ground for a difference in the construction. GRANTS. 1(3 seised of another manor called T., and J. Garantie , , de Attour- same church. neyt 3 . 80. If two jointenants in fee of one acre of land, lease it to a stranger for life, and the lessee grants his estate to one of his lessors, now it seems to some, that as to one moiety it shall enure by way of surrender, and as to the other moiety it shall enure by way of grant ; and their reason is, that the grantee had but one moiety of the reversion of the land in right, in so much that if he had granted the whole reversion to a stran- [Post. s. ger, and the lessee had attorned, yet but a moiety p S '-L, had passed from him ; and by the like reason, the Fmvudon, grant of the lessee shall enure by way of surrender 4 2 - but of the moiety, &c. (t). (s) Cet feoffment ne serra demonstrance de son volunte. Fr. text. But this is evidently a misprint. (t) The discussion of this point is continued in the five following sections. It is now. clear that this grant is not a surrender, but takes effect as a grant, and occasions a sever- ance of the joint tenancy; for one moiety of ihe freehold uniting with or merging in the grantee's moiety of the rever- sion, the fee simple in possession of that moiety is executed (vested) in him, and he is tenant -pour autre vie of the other ; the reversion of which ii left in his companion, See Co. Litt. 183. a ; Wiscot's ca. a Rep. 60 ; 3 Prest. Convey. 24. 89. 375- 391. 18 GRANTS. P.34Hen.6. 81. And if tenant for life be of land, out of Attornment. w hj c h a ren t i s issuing in fee, and the tenant for [Litt.s. 560. 1 Co. Litt. life purchases the same rent in fee by grant, this 3 °7;.^"^! 3 ,' grant is good to take effect in the heirs of the a. Vide Cif- ° /»!•/» ■ ford's or tenant for life ; and yet he had possession in the Mutton's ca. whole land at the time of the grant, &c. And if Saw ai. ca. , , . . j , , , ... 52. Dyer, * or( l an " tenant be, and the lord grant his seignory 140. pi. 41.] to the tenant and a stranger, this grant shall enure by way of extinguishment for one moiety, scil. to the tenant ; and for the other moiety, by way of grant to the stranger, fyc. 82. But it seems to others, that this grant by the tenant for life of his estate to one of the lessors, shall enure by way of surrender for the whole ; and their reason is, because every of the lessors is seised per mie et per tout of the reversion ; and the grant of the estate of the particular tenant cannot take effect by way of grant, without livery of seisin ; and the grantee cannot take livery of seisin of the same land, because he has the re- version in fee of the whole land in him, immediate to the same particular estate, and in his own right- And therefore, if lessee for life grant his estate to him in the reversion in fee in his own right, and immediate to the particular estate, this grant shall esure by way of surrender, fyc. But if a feme sole seised of land in fee, lease it for life, and then takes husband, and the lessee grants his estate to the hus- band, that shall enure byway of grant; causa patet. 83. And if a man seised of land lease it for life, the remainder for life to a stranger, and the lessee grant his estate to his lessor, that shall enure by way of grant ; and yet the grantee is seised of the GRANTS. 18 whole reversion at the time of the grant ; but the same reversion is not to take effect immediately after the estate of the lessee determined, if he in the remainder be living, as he is at the time of the grant, 8fC. And if lord and two jointenants are in fee, and the lord grant his seignory to one of the tenants, this grant shall take effect by way of ex- tinguishment for the whole (u), Sfc. And to some it seems it shall enure by way of* grant for the * [19 J whole ; and they say, that otherwise the lessee [in sec. 80] shall not have liberty to depart with his estate to one of his lessors, Sfc. 84. And therefore, if three jointenants in fee H. 1 3 Ed. 6. are of land, and one of them releases all his right to one of his companions, now he shall be in in the Per, for the third part of which the release M.7.HW1.6. is made, fyc. And it has been held, that if lessee for life grant his estate to his lessor and a stranger, by force of this grant they are join- tenants (x). 85. And if lessee for life be, and the reversion M - 21 Hw. . ; 7.42. (11) No direct authority is known for this, but it is appre- hended to be t he law : this is widely different from the case put in sec. 80 ; for although a seignory is an inheritance in pos- session and may be granted over, (Co. Litt. 280. a.) yet it is but a right issuing out of the land. (lb.) The accession of the seignory, therefore, could not alter the estate of the join- tenant in fee ; and his estate in the land (of which from the nature of his interest he was seised per tout,) and in the seignory being equally high and perdurable, they could not exist together, (Co. Litt. 313. a.) but the latter was neces- sarily extinguished in the former; and ibis enured to the advantage of his companion equally with himself. (1) This case is noticed by Lord Coke, at the end of Wiscot't case, a Rep. 60 : he decides that this is a surrender as to tiie moiety of the lessor ; and consequently that he and the other grantee do not take as joint tenants. 19 GRANTS, descends to two coparceners, and one of them takes husband, aud the lessee grants his estate to the husband and wife, this shall enure by way of grant for the whole, fyc. T. ia Ed. 4, And know, that a right shall not pass by way of ?l fH grant, except by extinguishment, SfC. And by 8. release it may be extinguished. 86. And therefore, if the disseisee of land grant his right lo a stranger, this grant is worth nothing ; but if he release all his right to the disseisor, it is good, if it be by deed. And if he confirm the estate of the disseisor, the confirmation is good. And if obligee and obligor be, and the obligee give the obligation to a stranger, the gift avails nothing as to bringing an action in the name of the donee ; for a thing in action cannot be given (_y) ; but the donee may cancel the obligation, or give it to the obligor, 8fc. M.41 Ed.3, 87. If an annuity be granted by the grantor for 3} ■ himself and his heirs to a stranger and his heirs, H. 21 Ed.4, . , b 14 & 28. lt; seems to some, the grantee may grant it over, H. 21 Ed.4. b ecause ^ is an inheritance in him ; iamen qucere: M.27 Ed.3, for the grantee has no remedy to obtain it but by Aide, 108. „ & . _ T „ { • i. t i way of action. Qucere, If the annuity had been granted for term of life (2), fyc. (y) Or assigned at law. But it may in equity, where the assignee is allowed to proceed for it in his own name. And even a court of law permits the assignee to sue for it in the name of his assignor, (Delaney v. Stoddart, 1 T. R. 26.) who cannot give even a let;al release for it, if the debtor knows of the assignment. Legh v. Legh, 1 Bos. & P. 447. The as- signment may be made by parol. Heath v. Hall, 4 Taunt. 026. (s) It has been long settled that an annuity, for whatever period granted, is assignable at law ; as ii must always have. GRANTS. 19 If a man seised of land lease it for life, the re- mainder to the right heirs of J. S. who is living, this remainder takes effect presently ; but is in no person to grant, tyc. because it is in abeyance, viz. in the consideration of the law (a), fyc. 88. But if tenant in tail be of land, the re- 27 Lib. Ass, mainder of the same to his ria;ht heirs, he may „ evise A} 3 ' . P- 5 Ed. 3, grant this remainder ; yet it is not executed in Formedcv,*. him (b), Sfc. If lord and tenant be, and the te- nant lease the tenancy to the lord for life, the lord may grant his seignory to a stranger ; and yet it is in suspense at this time, 8cc. 89. But if lord and tenant be, and the tenant infeoff the lord of the tenancy upon condition, now the lord [cannot (c)] grant his seignory ; and yet it is neither determined nor extinguished ; for if the been in equity. Co. I.itt. 144. b. and note; Com. Dig. Annuity, E. In practice, however, a power of attorney from the assignor to sue in his name, is still generally taken on assignments of annuities. (a) 'lhis is a point on which a difference of opinion exists amoni; modern lawyers. It is admitted by all, that where such contingent remainders as that noticed in the text, are limited on a conveyance to u^-es, or in devises by will, the fee will, till the contingency happens, be vested in the person creating the uses, or in the heir of the testator (e.nless other- wise disposed of.) Mr. Fearne has attempted to prove that the same principle applies to conveyances at tht common law, hut in this he is strongly opposed by Mr. Pn ston. Vide Fearne on Cent. Rem. ; Rrest. on Estates; Preston on Ab- stracts, &c. (b) This remainder is executed in the tenant in tail ; that is, it gives him a present right to the future enjoyment of the ice ; and if it were not he could not gra:>t it. The text must be understood to mean only, that the .estate tail does not unite with the remainder in fee ; and this is correct, for an estate tail never merges. 2 Rep. Gi. (in H "1Vc.1t 's case.) Seethe reason well explained, 2 Bl. Comin. 177. (c) ' Le seigniour poet graunt.' Fr. text ; followed in the former translation. But the context, and Co. Lilt. 314. a. shew that the negative is omitted by mistake. 19 GRANTS, condition be broken, and the tenant enters, the seignory is revived : But if before the entry of the tenant, the lord enfeoffs a stranger of the tenancy, and then the first feoffor, (that is to say, the tenant) enters, the seignory is not revived, but is determined ; because the lord parted with the tenancy to his feoffee discharged of the seignory. And so in the same case, the lord may * r2ol P art w ^ t " 1 ms seignory by such* means, fyc. H.38. Ed.3, 90. A parson of a church may grant his tithes Jvmtd. _43. f QY y ears anc i yet they are not in him at the time. F. 24 Ld.3, . Grants, 65 But if lord and tenant be, the lord cannot grant M. 30 Hen. tne wardship f the heir of the tenant while the o, Grants, ... qi. tenant is living. But if a man grant to me all the wool of his sheep for seven years, the grant is good, 8$c. P. 37 H. 6. 91. If land be leased to me for years, the term Sarrender,^. t begin at the feast of Easter next ensuing : and 36 Lib. Ass. n p t Commmi,zo. before the feast of Easter I grant my term to a 33 Lib. Ass. stranger, it is a good grant. And if a rent be Grants, 78. granted to me, and before I be seised thereof, I grant it to a stranger, the grant is good. 92. If he that hath a reversion depending upon an estate for life, grant a rent charge issuing out of the same, the grant is good to charge the land after the death of the particular tenant, fyc. If a man sell to me goods, and I suffer them to be in his possession, and a stranger takes them out of his possession, and I grant or sell them to the stranger, it is a good sale, or grant, fyc* M. 7 Ed. 4, 93. But if a man take my goods out of my 15 ' possession, and sell them to me in open market, 2 Inst. 713. the sale is void ; for it cannot be good except 1 the property be thereby altered, and that cannot GRANTS. 20 be ; for before, and at the time of the sale, the property was in me ; and then if it shall be al- tered by the sale, it must be altered in me ; and that would be impertinent, for then it should be altered out of me immediately into me, Sf-c. 94. If a villain be granted for life, the grant is good : and in the same case, if the villain pur- Co. Litt. chase lands in fee, and the grantee for life enters 1J 7- a - into them, as into lands purchased by his villain, he shall keep the lands to him and his heirs ; and yet he had an estate in the villain but for life : but the reason is, that he has the lands as a per- quisite, S[C. And to that purpose there is a dif- ference when a man shall have one thing in respect of another thing ; and when in the place of another thing, and when by reason of another thing. 95. And therefore, if a man lease lands for life, and the lessee does waste, and the lessor grants the reversion to a stranger, and the lessee attorns, the grantee shall not have an action of waste, for this waste, for it was not done to his disinheritance ; and the grantor shall not have an action of waste, because the reversion in respect of which he should have the action is out of him, Sj-c. And if lord and tenant be, and the tenant aliens in mortmain, and the lord grants his seignory to a stranger, and the tenant attorns, now the grantor shall not enter for mortmain, al- though it be within the year after the alienation ; because the seignory in respect of which he is to enter is out of him, &;c. 96. If lord and tenant be, and the lord grants his seignory to a stranger for life, and the tenant 20 GRANTS. attorns, and dies without heir, and the grantee enters for escheat, he shall not have a greater estate in the tenancy than he had in the seignory, * \~2\] because the tenancy * comes in lieu of the a P. 5 Ed.4,3. seitrnory ; and so shall it be of lands recovered H. 19 Ed.3. . ° J Recov. en m value by voucher as to this purpose ; mutatis value - mutandis, fye. 97. If a man seised in fee of a manor to which an advowson is appendant, lease the manor to a stranger for years, or for the life of another man, T. 4 Hen. 7, and the church becomes void during the term, r and the years expire, or cestui que vie dies before the six months pass, and before the lessee hath presented, yet the lessee shall have the present- ment ; because he is to have the same as a per- . quisite, by reason of the manor. And if feoffee of land upon condition be, and the feoffor enters c and does trespass, and afterwards the condition is broken, and the feoffor enters, yet the feoffee shall have an action of trespass against the feoffor, although he has not the land wherein the trespass was done ; causa patet, 'fyc. 98. If cestui/ que use be of a reversion, he may grant the same as well as if he were in posses- sion ; and that by the statute of the first year of d Richard the third, cap. 1 (c). And by the same (c) The words of the statute would warrant this construc- tion : but it was decided in Delutner's case, (Plowd. Com. 348. 350. stated also 1 Rep. 128. iu Chudteigh's case,) upon very satisfactory grounds, that the stai. did not extend to grants of the estate by cestui que use in reversion or remainder only. It appears to be now conceded that this statute was rendered altogether inoperative by the statute of uses, -27 Hen. 8, c. 10. Vide 1 Sand, on Uses, chap. 1. s. 6; Sugden's Gilb. on Uses, 67. GRANTS. 21 statute, cestui) que use of lands or tenements may charge them by his grant : Vide the statute, 3,-c. And a man may grant common or rent, notwith- standing that a stranger takes the rent, or uses the common, for he shall not be out of possession of them, but at his pleasure, Sec. qq. And such things as are granted to a man by reason of trust touching the person of the grantor, e the grantee cannot grant over, except in special T. i 1 Ed. 4, cases, unless they be granted to him and his assigns. an ' '*' 100. And also, if it be an office of trust con- cerning the person of the grantor, the grantee . cannot use the same by deputy, if not in special f cases, unless the grant be so made. An assignee is always such a person as occupies in his own right ; and a deputy such a person as occupies in the right of another. 101. If a man grant to me to be his carver, sewer, or chamberlain, Sfc. I cannot grant the g same over, or use them by deputy, if the grant H. 21 Ed. 4, be not so made as before is said. And so is it of other like offices, SfC. Also the lord chancellor of England, justices of the King's Bench, justices of the Common Pleas, and barons of the Exche- quer, cannot grant their offices over to other persons, or use them by deputy, §c. And if an h annuity be granted to me, pro concilio impendendo, I cannot grant it over, if it be not granted to me and my assigns. And, qucere, whether I may then grant it, Sfc. (d). (d) It was resolved in Maund's case (7 Rep. 56.) that a rent, and therefore an annuity also, granted to one and his assigns pro consilio impendendo, may be assigned o»er. D 21 GRANTS. T.i8Hcn.6, 102. If a man by grant have common of pas- Grant, 95. ture f or ca ttle without number, and his grantor grants common of pasture for cattle without num- ber in the same lands to another man, the second grant is not good against the first grantee ; because a man by his grant shall not prejudice him who * [22] hath an elder* title ; but the same grant is good against the grantor. T. 45 Ed. 3. 103. If two jointenants be of land, and one of G I a r n -\' 4 a' them grants common of pasture for cattle with- 36 Lib. Ass. ° 1 '"• 1 p. 3.&C. out number, to be taken in the same land, to a stranger, the grant is void against the other join- tenant, for the cause before said: but it is a good grant against the grantor himself, SfC. And a grantee for life of common of pasture for cattle without number, or of a corody uncertain, cannot grant the same over, except it be granted to him and his assigns. But a grantee of common of pasture for cattle certain, or of a corody certain, or of any manner of common certain, or of an advowson, or of a villain, or a rent, or the like, M. 5 Hen.7, may grant the same over, although the grant be Grant, 38. not to ].,j m an( j jjjg ass jg ns> unless there be a spe- cial proviso in the grant, that he is not so to do, Sfc. (e). 104. Common of pasture appendant cannot by grant or otherwise be severed from the land to which it is appendant, if it be in esse. So is it of [Drury v. estovers granted to be burnt in a house certain ; Kent, Cro. ~ a Lib Ass ^ II seems t0 be intended that the grant should be abso- pl l." ' '"?* for life or in fee ' in tlie first i^tance; and if so, it i» difficult to imagine any case in which such a general restric- tion upon alienation would not be void. GRANTS. 22 mhtatis mutandis. But a villain regardant to a manor, and an advowson appendant to a manor, may be severed from the manor to which they are appendant, and made in gross by grant, Sfd. And it is a common rule in law, that if no estate be expressed in the grant, the grantee shall have an estate for life. But yet if there be such words in the grant as may declare the will of the grantor, and his will is not contrary to the law, the estate shall be taken according to his intent and will, except in special cases. 105. And therefore, if two marks of annual rent be granted to a man until ten marke are levied, the grantee shall have an estate in this rent but for five years ; for the intent of the grantor cannot be otherwise understood ; and the words in the grant are sufficient to satisfy that intent, fyc. And if a man seised of a rent issuing out of land which is devisable, devise the same rent to a stranger until the heir of the grantor be [Mansfield of full age, and the grantor die, his heir being f v \P u S£ rd > the age of sixteen years, now the devisee hath an Abr. 195] estate in the rent but for five years, Sfc. tamen quare (f). 106. If a man seised of land in fee, grant ten shillings rent issuing out of it to an abbot and a secular man, it shall enure as several grants, and (f) The devisee takes but a chattel interest : and if he be the executor, or the devise be made for payment of debts, (but it seems not otherwise), he shall take for five years; i. e. till the heir attains, or would have attained the ape of twenty-one years. 3 Rep. 20. Taylor v. Biddall, 1 Mod. 289. And under a grant or lease in the same words, it Is said the grantee's interest would cease upon the heir's death under age. 3 Rep. 19. D 2 22 GRANTS. each of the grantees shall have ten shillings, be- h cause the grant shall be taken most strong against him that made it, and for the benefit of the grantee ; tamen quccre (g). The same law is, mutatis mutandis, If two tenants in common of land join in a grant of a rent charge of ten shil- lings, issuing out of the same land, to another man, &c. 107. But if two tenants in common of land, lease it to a stranger for life, reserving to them ten shillings, this shall take effect as several [23] * leases; and each of them shall have but five a shillings ; for the reservation is their own act, and they shall not have more than they themselves reserved, Spc. (A). (g) A natural person and a corporation cannot take as joint tenants, because they take in several capacities, and there can be no mutual benefit of survivorship or jus accrescendi between them ; therefore if lands be granted to them they shall take in common. And it seems they would take a rent in the same manner, for it might as well be divided between them by act of law in the first instance, as between two na- tural persons, joint grantees, by their own subsequent act ; and giving them several rents would be in direct contradic- tion to the maxim, legis contruciio nonfacii injuriam. The point is of little practical consequence. The next position in the text, that a grant of a rent by two tenants in common enures as separate grants of tw o rents of that amount, is clear. Shep. T. 98 ; Co. Litt. 197. a. But on a close examination these two cases will be found to differ in several points. The grant of an annuity by two persons jointly and severally gives but one annuity, although the remedy for it lies against both. Co. Litt. 144"! b. (fi) On account of the rules of law stated in this section, where tenants in common grant a lease together, they should all join in demising, " but each and every of them so far only as respects his own part share or interest," &c. Habendum the whole estate, Reddendum for and in respect of the part, 6cc. of one lessor of and in, &c. the rent of £. , et Red- dendum for and in respect of the part, &c. of another lessor, GRANTS. 23 108. If a man grant to me common of pasture M. 1 Ric. 2. for ten kine, in his lands in such a town; yet Barrc > J 37- I shall have common only in his commonable £ land in the same town; and yet the grant is general in his lands in the town : but the reason is, because he grants only common of pasture, and for cattle certain and commonable ; so that c the grant shall extend only to pasture lands. But M. 9 Hen.6, if common of pasture be granted to me for all ^' Common > manner of cattle, I shall have common for hogs, 8pc. Also if common of pasture be granted to me for my cattle, I shall have common only with commonable cattle ; for a grant shall have a rea- sonable construction, fyc. 109. If a man grant to me common of pasture for my cattle, wheresoever his cattle shall go, and D he occupies and manures a hundred acres of land with his cattle, and afterwards he hath no cattle, yet I shall have common in the hundred acres, Sj-c. But if common of pasture be granted to me for my cattle, whensoever the cattle of the grantor shall go, SfC. in this case I shall have common only when the grantor uses common with his cattle, S)-c. 110. If a man hath a pool or fish pond, and 2 Rich. 2, grants or sells to a stranger all the fish in his , ar 'J'„ 'n 7, b (or 237.) pond, the grantee cannot dig the land to make e a trench, fyo. because he may take the fish with Temp. Ed. 1 nets and other engines ; so that a grant shall &c. the rent of £. , and so on. And separate covenants should be taken from the lessee with each lessor, for the pay- ment of the rent reserved for his share of the estate. D 3 37- 151- b. 152. a. 23 GRANTS. always have a reasonable construction. But if a man have a wood, and grant all the oaks grow- ing in his wood to a stranger, the grantee may cut down the oaks, and come upon the land of the grantor with carts to carry them ; for other- wise he cannot conveniently have them, Sfc. M. 9 Ed. 4. 1 1 1 . If a man give me leave to make a trench, from such a spring in his lands to my manor, so that I may lay a pipe in the land to convey the water to my manor in a conduit, fyc. if afterwards my pipe be broken, I may dig his land to mend the pipe, tyc. Co. Liu. 112. Now is to be shewn what things shail pass by the grant of other things. And as to that, know, that all things which are incident to others shall pass by grant of those things to which they are incident, except in special cases. And there- fore, if lord and tenant be by homage and fealty, and the lord grants the homage to a stranger, and the tenant attorns, by this grant the fealty shall pass as incident to the homage, &$c. T. 44 Ed. 3, 113. And if lord and tenant be by fealty and Hors de son rent j {} lord grants the rent to a stranger, M. 39 Hen. and the tenant attorns, by this grant the fealty ~* 34 '. shall pass as incident to the rent : but in the Co. Litt. r 150. b. same case, if the lord had granted the rent (sav- C' 2 4] ing to himself the fealty) the * grantee should have had the rent as a rent seek, and the fealty had not passed, 8?c. ' If a man seised of land lease it to a stranger, reserving rent, and grant the rever- sion to another stranger, and the lessee attorns, by the grant of this reversion, the rent shall pass GRANTS. 24 B a3 incident to the reversion : but in the same case, if the grantor of the reversion (in his grant) save to himself the rent, the rent shall not pass, fyc. 114. If a man have a reversion in fee in ten m. 14 Hen. shillings of rent, issuing out of lands in Dale, and £> D *™ e ,> *■ . a i> 1- *" Ed. 3, also hath the reversion in fee of an acre of land m Q ran t ! S5 . the same town, and he grants all his lands and tenements in Dale to a stranger, by this grant the reversions shall pass : but if the grantor have c an annuity in the same town it shall not pass by 30 Ed. 1. such grant, §c. If a man hath a reversion in ran ' ' a mill, and he grants totum molendinum snum to a stranger, by this grant the reversion of the mill shall pass, fyc. But in the cases of grants of reversions, there ought to be attornments (1) ; d otherwise they shall not pass, if the grant be not by matter of record, 8pc. 115. If a man give and grant to me omnia bona M.19 Ed.4, et catalla sua, his charters concerning his lands z, one ' Jh shall not pass by these words, &$c. If lord and Hors de s at Berwick, the plaintiff shall take nothing by his Hob. 296. writ, because he cannot vary from the place dated in the obligation, and the Common Pleas hath not jurisdiction there. But when a deed is pleaded as bearing date at a place where the court hath not jurisdiction, if the deed be not answerable, the plea is good enough. 122. And therefore, if in a replevin the defend- If .20 Ed. 3, ant avow for a rent charge in another place than cuu ' r y> 1 "~- the plaintiff counts, granted by deed bearing date where the court has no jurisdiction, and the plain- tiff maintains his declaration (as he ought) which is found against the plaintiff, now the defendant * shall have retorn of the cattle. P # of *-. And notwithstanding that a deed hath all the ]\j. 7 j.\i. * words, if it be rased or interlined in any suspi- Varmedon, (c) It was formerly usual to insert in deeds the name of _*; * *"*-$i the place where they were delivered, and it is to this date '^ rt J a - ' 2 9- that the text refers. Many inconveniences arose from this ^45^(1.:;, practice, as will be seen in following sections, and it lias now ^' tc /»59°. very long been obsolete. d6 26* DEEDS. [Pigot'* ca. cious place within the deed, or new letters writ- 11 Jjc'p. 27. ten U p 0n t j lc jj letters, the deed is greatly sus- 225. b.] picious, except in special cases. 123. And therefore, if the name of the grantor or grantee be rased or interlined in a deed poll, M. 44 Ed.3, the deed is very suspicious ; so is it of the thing M i4Hen g ranteo '> or m limiting the estate, $c. If the date 4, Variance, of a release be rased in the place, it is very sus- 47 * picious ; because it may be it was dated out of the realm. But if the lines of a deed be written crooked, the deed is not suspicious for this matter. 124. And although a deed poll be rased in a place which is not material, the deed is not T. 31 Ed.i, suspicious for such matter: as if the addition of eaffmem, ^ f eo ff ee De rase( j j n a j ee( j f feoffment; or if 110. ' the deed comprehend dedi et concessi, and concessi is rased, the deed is not suspicioifs for such matter. But otherwise, it is if dedi be rased ; for this word dedi comprehends the effect r 3 ° fi d 3 ' anc * f° rce °f tn ^ s wor( l concessi, and more. For [Butl. Co. dedi in a deed of feoffment comprehends in it Litt. n. 1. a warranty against the feoffor, and so doth not 384. a.] the word concessi. And although a deed poll be rased in a material place, as in the name of bap- tism of the grantor or grantee, if it appear that there was no writing there before, it is not greatly suspicious. P. 25 Ed.3, 125, And if a man grant to me, by deed, a rent Feoffment, c ] iar g e w hi c h he hath issuing out of the land of [Co. Litt. another, and the tenant attorns ; and I, by my 6. a.] deed, reciting the same grant, regrant the rent to my grantor, and the latter deed is rased in the name of baptism of the grantor, yet it is not DEEDS. 20 greatly suspicious, because that relies upon an- other (the recited) deed, in which the name is not rased. Qucere, If such a deed be rased in the 3? date of the place, 8?c. (d). 126. And notwithstanding that this word 22 Hen. 6, (executor) be rased in a will, yet the will is good E* ecutors > enough ; because it relies upon the register of the ordinary before whom it was proved, and it appears there whether the party were made ex- ecutor or not. And if in debt brought upon an g obligation, the date of the obligation be rased, M.41ECL3, and the plaintiff shews forth an indenture of Obligation, defeasance proving the obligation, the obligation h. 40 Ed. 3, is good enough. So is it of indentures bipartite, tripartite, or quadrupartite, if one of them, or all of them, be interlined or rased in a material place, they are good enough, notwithstanding h that, if they do not vary in the words. 127. But if one indenture be rased in a mate- rial place, and the other indentures or indenture are not rased, and the indenture which is rased doth not agree in words in that place in which it is rased, with those or that not rased, the inden- ture rased is greatly suspicious. (d) Viner's Abr. Faits, T. el vide note, s. 118. ante. This and the preceding sections force the remark, that at least one advantage attending modern deeds is, the intention is generally so fully expressed, as to render it almost impos- sible to destroy the effect of a deed by erasures or interline- ations in any particular part ; and this must in some measure kave induced the present liberal construction of such defects. It seems to be now understood that no alterations by a stranger will affect the deed, nor any made by a party un- less fraudulently, and not even then to such an extent as to prejudice others. 20 DEEDS. 128. As put the case: The indentures are of * [27] bargain and * sale of lands and tenements, and the indenture which remains with the vendee is rased, and the word which is rased is manor, and in the other indenture in the same place the word is house, and the vendor hath a manor and also a house in the town where the lands sold lie, the indenture which the vendee hath is greatly sus- picious ; and so is it of interlining, and of other such like things. And if the words which testify that the grantor, feoffor or obligor, &;c. have put their seals to the deed, are not put in the deed, it is insufficient, although it be sealed (*- now it is my deed presently ; and if it be deli- vered to him before he come to York yet I shall not avoid it : and if I die before he comes to York, and afterwards he comes there, and the deed is delivered to him, it is clearly good, and my deed ; and that it could not be if it had not been my deed before my death. 144. And if I deliver a writing to a stranger 33 Hen. 6, as my deed, to deliver to him to whom it is made Ft0 S ment > upon a certain condition, and he to whom it was made takes it out of the possession of the bailee, before the condition fulfilled, yet it is my deed and shall bind me. 145. And if the next avoidance of the advow- son of the church of Dale, fyc. be granted to a H. 5 Hen. 7 man by deed dated the first day of May, a. d. Bar • '47- 1490, and the deed is first delivered as a deed the fourth day of May in the same year. And by another deed, dated the second day of May in the same year, the next avoidance of the same church of Dale, fyc. is granted by the same grantor to another man, and the same deed is delivered as the deed of the grantor, the third day of May in the same year ; in this case, the Jast grantee shall have the next avoidance of the 30 DEEDS, said church, and not the first grantee ; and yet his deed bears date before the deed of the second grantee ; but it is because a deed first takes its effect by the delivery, fyc. H. 15 Ed. 3. 1^6. And in an action of debt brought by go a feme sole upon an obligation, if the release of one who was her husband be pleaded, Sf-c. she may say, that at the time of the delivery of the release, he was not her husband, $c. And the jury shall be charged to inquire of the time of the 1 [3 1 ] delivery, and not of the* date; notwithstanding i'lp g 3 ' that she in her plea does not make protestation Per Trew. of the date, fyc. And it is to be known, that he W «M ™ib pleads a deed, and he against whom a deed 4 B. & Cr. is pleaded, may vary from the date of the deed in g01 "J the time of the delivery. And it is said, that then it behoveth that the date be before the de- livery of the deed. ■iQ Lib. Ass. 147. And therefore, if a man be bound in a I' 1 - 47* recognisance, and the recognisee by his deed in- 87. dented, dated before the recognisance, grants to the recognisor, that if he perform certain condi- tions contained in the same indenture then the recognisance shall lose its force : In this case, it behoveth the recognisor to take advantage of this deed by averring its delivery after the recog- nisance was entered into. • M. 12 Hen. 148. If a man bring an action of debt against G.Releasc;. me upon an obligation dated the second day of May, and declare accordingly, fyc. and I plead against him an acquittance, dated the first day of May in the same year, now I shall take advan- tage of this acquittance by averment ; that is, by DEEDS. 31 saying that it was first delivered as the deed of the party after the date of the obligation, viz. at such a day, &$c. 149. And if in replevin brought by a feme sole, the defendant avow by reason of a grant of a rent charge made to him by the woman, which grant bears date the first day of May : the woman may avoid this deed, by saying, that it was first delivered the tenth day of May in another year after, Sfc. at which time she had a husband, Sfc. And it is to be known, that it is said, a man M. 12 Hen. cannot plead the delivery of a deed before the ' e eas date of it : for every deed which hath a date shall be intended to be written on the day of the date. But it is no deed before the delivery ; and a deed cannot be delivered to take effect as a deed be- fore it be written (I). 150. And therefore if in an action of debt brought against executors, who plead a release of the plaintiff to their testator, the release bears date after the purchase of the writ ; now if the executors will say that it was first delivered in the life of the testator, the plea is not sufficient ; causa patet. And if the date of the probate of a will granted by the ordinary be more ancient T. 18 Ed. •. than the date of the making of the same will, the ^°ff me ' u > will is void as to bringing an action upon it, Sec. 21 Hen. 6. And if a man plead a release, or other deed, *f#" , * B *> f>,6 Hen. 6. Variance, (i) By this is to be understood only that the party 1 q < making the deed cannot allege its delivery before the date ; but the jurors may find the truth, so that the party cannot take advantage of the date, and plead nen est factum. God~ Uard'n case, 2 Jlep. 4. b. 31 DEEDS, bearing date at such a place, viz. at Dale in the county of Middlesex, §c. he shall not be suffered to say, that it was delivered at another place than where it bears date. 151. And therefore, if an action of debt be brought by administrators, and they declare, that M. 13 Ed. 3. the administration was committed to them in p,rf raw ' London, and the letters of administration bear date in another place, and in another county than they have declared, the declaration shall abate : and so know, that he who pleads a deed shall not vary from the place where it bears date ; but he against v/hom a deed is pleaded may say, that it was made by duress of imprisonment at another place, and in another county than where it bears date. *[.3 2 D 1 5 2 * And therefore, if* in quare ejecit infra y\ % ^ terminum, or ad terminum qui prceieriit, or in 7>2. Jvrmedon, fyc. the tenant plead the release of the [Fitz. N. B. demandant, bearing date at Dale, fyc. and the 1 Reeves' demandant say that he was taken by the tenant Eng.Law, a t gale in another county, and there was impri- M. aa Ed 3. son ed by him, until he made the deed unto him, Vixne, 7. this is a good plea ; and the matter shall be tried where the imprisonment is alleged, Sfc. And so a man may vary from the place which is men- tioned in the date ; because when a man makes a deed by imprisonment, he to whom the deed is made may put in the deed what date he will. M. 9 Ed. 4. 153- And an obligation or other deed may be Feoffment, made by the abbot and convent out of their monastery, for all the monks may be in another place : so that if the deed say, datum apud DEEDS. 32 London, without notice de domo capitulari, such a deed is good enough, although their monastery- be at Kingston, Sfc. But if their deed say datum in domo capitulari, this cannot be but where the chapter is, fyc. 154. A deed cannot have and take effect at every delivery, as a deed ; for if the first delivery 1 Hen. 6. take any effect, a second delivery is void. As in « f0 -f?i C "''i' case an infant, or a man by duress of imprison- //,. 3. ment, make a deed, and deliver it as his deed, Sec. [ ( - ,oodT 'S !lt 1 1 • v " btriiplian, and afterwards the infant when he comes to his Cowp.aoi.j full age, or the man imprisoned when he is at large, re-delivers as his deed, the same deed which he delivered before as his deed, this second delivery is void. But if a feme covert deliver an obligation or other writing as her deed, this deli- very is merely void ; and therefore if after the death of her husband, she being sole, delivers the same deed again as her deed, this second delivery is good and effectual. 155. Notwithstanding that a deed be sufficiently written, viz. without rasure, interlining, or new writing upon the old writing, or without any other such fault ; and also be sufficiently sealed and delivered as the deed of the party ; yet if the words in the deed are not sufficient in law to bind him, the deed will avail little or nothing against the party. 156. And therefore, if a disseisor enfeoff a stranger by deed, and the words in the deed are such, viz. Know all men, fyc. quod ego, the dis- seisor (and name him) per assensum et consensum of the disseisee (and name him) dedi et conccssi et E 32 DEEDS. hac prccsenti, Sfc. to the stranger, fyc. and this be done before any entry made by the disseisee, these words (per assensum et consensum of the dis- seisee) shall not bind him, but he may enter, although it be true, that is to say, that the feoff- ment was made with his assent and consent ; for when he is disseised he hath but a right which shall not depart from him except by extinguish- ment ; and it ought to be at least by deed, and that made to him who at least hath the possession * [33] °f tne freehold in the land at the* time, $c. And in this case the feoffee had not any possession at the time of the feoffment, and the disseisor cannot enter in the name of the disseisee, and revest the possession in the person of the disseisee ; for the disseisor himself is in possession, and he cannot enter upon himself, Sfc. So it cannot be that the disseisor makes this feoffment as servant to the disseisee ; for it is made in the name of the dis- seisor, &c. Litt. chap. 157. But if the disseisee enter, and then the Conjirma- jj sse j sor an( j fa disseisee join in a feoffment turn. J by deed, with words of confirmation, it shall be called the feoffment of the disseisee, and the con- firmation of the disseisor. But if they had joined in such a feoffment by deed, before the entry of M.3Hen.6, the disseisee, and the disseisor had made livery Feoffment, 1. f se j s ; n) then it should have been called the feoffment of the disseisor, and the confirmation of the disseisee. And if a stranger had entered in the name of the disseisee, and by his command had made a feoffment in his name, et per assensum et consensun of the disseisee by a deed, containing DEEDS. 33 in it a warrant of attorney to make livery of seisin, by such feoffment the disseisee should be bound. 158. And it hath been holden, that a man H. 4 Ed. 3, shall be bound by the language of another man, Covenant, by agreeing thereto by putting his seal to it, and t. 4 Ed. 2, delivering it as his deed. As if a man be obligee Obligation, in debt, or covenant by writing, and put such a r^ urte T . clause in the writing viz. et ad major em hujiis- Frampton,i ... . . . j. „. . n Salk. 214. modi rei secuntatem, invent A. ae IS. et C« a p rcst# de P. fidejussor es, quorum unusquisque in toto Convey. et in solido se obfigavit. Although none speaks J the same but the principal in the writing, yet if the others put their seals to it, and deliver it as their deed, then they allow of that which the principal speaks ; and so they themselves are become principals, and so it hath been holden, eye. tamen qucere(in). 1 yj. And at this day, a man shall be held and bound by putting his seal to a deed indented, and delivering the same; although the words in the 14 Hen. 6, deed are spoken by another man only. And ^ f W c '<32. therefore, if a man make a lease for years to me of my own land by deed indented, without saying more, by this deed I shall be concluded ; and yet there is no speech of mine in the deed. And if father and son be, and the father is seised of an acre of land in fee, and a stranger leases the (to) Tlic words referred to, express the intention with clear- ness and precision; and the execution of the deed by the parlies named would be an adoption of it, and clearly bind them. Vide the references in the margin. L '2 33 DEEDS, same acre to the father for years by deed in- dented, and the father dies, now the lessor by this deed shall conclude the heir of the lessee from saying that his father died seised in his de- mesne as of fee ; and yet there is not any speaking in the deed by the father, §c. M. 35 Hen. 160. And it is said by some men, that if in , -stoppd, a ( j ee( j m( j ente j ma( j e between two, both speak JM.gHen.6, by words in the deed, but the words which one •eojfmentfi. g p ea k s are ; n t ] ie fi rst person, and the words which the other speaks are in the third person ; in this [Vide n. (u), case they say, that all the words in the deed shall ». 179. post. De ca ll et l the words of him who spoke in the first person ; which saying is little or nothing to the purpose, &;c. * [.34] 1 ® 1 ' * Now is to be shewn, where the words contingat, or proviso, or such like words in a deed, shall be void, and where not. And as to that it is to be known, that when the habendum or contingat, 5' assensu, fyc Dedisse, Sj-c. W. H. et hceredibus suis unum tqflum quod jacet, fyc. Habendum, Sfc. reddend. nobis et successoribus ?iostris xii. d. et pro hac concessione predict. W. H. renunciaxit totam communiam quam habet cum averiis suis et habere e6 37 DEEDS. consuevit cum diversis averiis nostris, fyc. Thes£ words in the deed, viz. renunciavit totam com- muniam suam, shall have relation [i. e. the release is made] to the abbot and convent in considera- tion of the premisses in the deed ; tamen qucere (u). i> M. 3 Ed. 4, 180. And if a man by his obligation ackuow- Dtbt, 72. i e dges himself to be in debt to the obligee in twenty quarters of corn, to be delivered to the obligee, at such a place, Sfc. and to perform the same, he, viz. the obligor, acknowledges himself to be bound ; in this case it shall be taken that he is bound to the obligee of the corn, in considera- tion of the premisses of the obligation. 181. If a man seised of land in fee enfeoff me « thereof by deed, Habendum et tenendum mihi et haired, meis ; and moreover by the same deed warrants the same land to me, et hcered. prtzdict. M.45E<1.3, this word (prcedict.) shall have relation to my Tail, 14. p. ne irs . b ut jf a rent b e granted to J. S. and T. K. T. 20 H. 6. to be perceived by them and the heirs, not shew- Feoffmmt.S. m „ by whose heirs, the grantees shall have no [Fitthughv. & • r , . , . ' & Bennington, estate but for their lives. p 2 Raym. _ " ~ 1OQ4.I ( u ) From the apparent impossibility of giving any other fCo. Litt. construction to these words, the case in the Year Book was y_ jji referred to, to discover upon what the doubt could arise. The deed was objected to, 1st, Because as it commenced in the first person, and from the abbot and convent, all the ■words in it must be construed theirs; and, 2d, Because it did not express to whom the common was released. The court, it appears, was against both objections ; but the case went off upon a point of pleading. In the precedingchapter, little more than the general nature of deeds is considered : on their special properties, as they are divided into, 1. Wrongful or tortious, and rightful or inno- cent ; and, 2. Those taking effect at the common law, ana those operating under the stat. of uses. Vide Bull. Ji'ote on Co. Litt. 271. b. and the 2d vol. of banders on Uses. FEOFFMENTS. 37 CHAPTER III. Of Feoffments. [Preston's Sliep. T. chap. Feoffment. Viuer's Abr. Comyns's Dig. and Bacon's Abr. under the same title.] 182. Now it is to speak of feoffments. And for- rQ Lilt asmuch as a feoffment cannot take effect without 6. a.] livery of seisin, something shall be said of what persons may make livery of seisin, and of such persons as may take by it ; and how, and in what manner and form, livery of seisin ought to be made : and when the livery of seisin shall be void, by the presence of any oue upon the land, who will not agree and assent to the livery of seisin, SfC. And when by livery of seisin of one acre, many acres shall pass ; and when the feoffees shall have an estate of inheritance, without speak- ing of their heirs or successors, A c. 183. There are some persons who may make livery of seisin in their own right ; and also as servants to others : and some persons who can- not make livery of seisin in their * own right, but • r.,g-i may do so as servants to others : and some per- sons may make livery of seisin for themselves and in their own right to some persons, and to other persons they cannot; and some persons may make *. livery of seisin, and take by the same livery, fyc. 30 FEOFFMENTS. 184. All such persons as can grant for them- selves may make livery of seisin for themselves, viz. in their own right, and as servants to others, in the same manner and form as they may grant, fyc. mutatis mutandis, fyc. And for such per- [Ante, 3. 3, sons, see the Chapter of Grants, mutatis mu- tandis, fyc. 185. And as to such persons as cannot make livery of seisin in their own right, but may as servants to others, know, that a monk, friar or canon, fyc. professed, or a married woman, can- not make livery of seisin for themselves, viz. in their own right ; and if they make any livery of seisin in their own right, it is void ; because per- sons professed in religion, cannot have any land in their own right, except he be severed from the same house of religion, fyc. Mich. 9 Ed. 18G. And although a married woman may be 7S rqa8 i seised in her own right with her husband, yet livery of seisin made by her alone, without the agreement of her husband, is void ; insomuch that notwithstanding such livery of seisin, her husband and she may have an assise, if he be seised of the freehold in her right : but in such case, if the husband be seised in his. own right, then notwithstanding such livery of seisin made by his wife, he shall have an assise in his own name, fyc. M. ioEd.4, 187. But if a monk or other person professed fo. 46. Co. [ n religion, or a feme covert, make livery of seisin according to the deed of a person able to make a feoffment in his own right, and by a letter of attorney made to him or her by the same feoffor FEOFFMENTS. 38 so to do, then such feoffment is good ; because the feoffee in such case is not in in the land by him or her that made the livery of seisin, but by the feoffor. But if they do not make such livery of seisin according to their letter of attorney, then [Roe v. . . .... , c a- o Rashleigh, m some cases it is a disseisin to the ieottor, ope. 3 Barn. 8, ?; horse, and he takes my white horse and my Tratug. 179. black horse, m this case he is a trespasser in [8Rep.i45. taking the black horse, but not in taking the I., in Six , • , , , • , • • Carp, ca.] w "ite horse ; and the reason in this case is, because it was a licence in deed, and he has done all and more, fyc. But if lessee for years be of a house, and the lessor enters into it to see if waste be committed or not, that is lawfully done; but if at the same time the lessor carry away any of the goods of the lessee against his will, in this case the lessor shall be punished for his entry, and yet it was lawful at the beginning ; and the reason is, because when the law gives a man a liberty to a certain intent, and he uses this liberty to another intent, or misuses it, he shall be a trespasser ab initio, except in special cases, tyc. M. 5 Hen.7. 191 . And therefore, if a man enter into a tavern /wisg.149. tQ drink, and when he hath drunk, carries away the cup against the will of the taverner, now he shall be punished for his entry from the beginning ; for it cannot be intended that his entry was to any other intent than to steal the cup, for the law cannot judge his intent against his act done ex post facto : The same law is, if a distress be taken for damage-feasant, or for a rent- service, and is misused ; quaere if a distress be taken for a rent-charge, and is misused (a), fyc. And so is (a) According to the doctrine in the Six Carpenters' case, 8 Rep. 146. b. it seems the rule did not extend to the case of a rent-charge: for it is there said, that where an entry is given, not by the law, but by the party (which appears the foundation of the uiiare), and is abused, there the wrong-doer must be punished tor his abuse, but shall not be a trespasser ab initio. And this because in the case of a general authority FEOFFMENTS. 39 the difference between a licence in fait and a li- cence in law, 8?c. 192. But if a warrant of attorney be made to make livery of seisin to two men, and one of them M.s lien. 4, dies before the livery of seisin made, and the at- Co 'i ''.','" "' ,: '- J ' 12 Lib. Ass. torney makes it according to the deed to the other Feoffment, feoffee who is living, it is good to him for all the 8l * land. And so it is if one of the feoffees be pro- fessed friar before the livery of seisin made; causa patet, 8?c. And it hath been holden, that if a warrant of attorney be made to make livery of [IrkhCa.of seisin without condition, and the attorney make """ because he cannot make livery of 'i6. seisin to him : but if two coparceners be, one Release %* °^ them nia y enfeoff the other of his part and P. 38 Ed. 3, portion ; and if two coparceners be, one of them Feoffment^. may re i ease to t h e ot h er , and it shall be good and effectual to give an estate in that portion to the releasee. 194. And if a contract of marriage be between a man and a woman ; yet one of them may enfeoff the other, for they are not yet one person in law, insomuch that, if the woman die before the mar- riage solemnized between them, the man to whom she was contracted shall not have her goods as her husband, but she may make a will without his agreement, Sec. M.16H. 3, !£«;. And it hath been holden, that if a man Feoffment, • •';••/. ,i 7< contract himself to a woman, et posted cognovit M. 15 Ed. 4, camcarnaliter, and afterwards enfeoffs her of a carve of land, and puts her in seisin thereof, and afterwards marries her in facie -ecclesice, that this feoffment is void, because it is made post fidem datum, 4' carnalem copidam, Sr sic tanquam inter rirum §■ vxorem : inasmuch as the marriage is 'subsequent, fyc. But at this day if such a feoff- ment be made, it is good enough. But after the marriage celebrated between a man and a woman, an absolute surrender of a copyhold, that if the lord should admit the surrenderee upon condition, the condition would be void. In Westuick and Wyer's case, 4 Rep. 28. a. FEOFFMENTS. 40 the man cannot enfeoff the woman, for then they are as one person in law. ig6. But in divers cases a man may be the mean to make a thing pass to his wife, which shall not pass immediately from him. And there- Co. Lilt. fore, if a man enfeoff a married woman, and make *°7'°-& ia » Coke s a letter of attorney to her husband to make Copy. s. 35. livery of seisin according to the deed, and he makes livery of seisin accordingly, this is a good feoffment, for the husband is but a mean to con- vey the freehold to the wife ; for by this act no freehold doth pass out of his person, Sj-c. 197. And it hath been said, that if two join- [Anon. 4 tenants be in fee, and one of them leases that eon ' ' / '-' which belongs to him to a stranger for years, the remainder for life in tail, or in fee, to his compa- nion, and livery of seisin is made to the lessee for years accordingly, this remainder is good. But it seems the remainder is not good, for it had not been good if livery of seisin had not been Litt. ch. made to the lessee for years : so it appears that lie7r ; itte j- . J . . 3 Lib. Ass. the remainder shall pass by the livery of seisin ; p|. 0. and one jointenant cannot make livery of seisin to his companion, Sfc. Ideo qiuere (c) ; and if a (c) If the lease had heen made for life, the remainder •would clearly have been good. The case is noticed in Viner's Abr. Feoffment, E. pi. 13. in marg. without remark. As a mere grant tor years would not sever the jointenancy, the position does at first sight appear untenable. Lord Coke,, however, says (1 Inst. 192. b.) if two* joiiitenauls lease for life the remainder to his companion in fee, this is a good re- mainder : and if this can be sustained (4 Leon. 187 contra), * Sed uuare, Whether Lord Coke did not write " if one of two jointcnants.'tkc. ? This passage tee ins to have escaped the eye of his learned annotator. 40 FEOFFMENTS, man disseise me of land, he cannot enfeoff me by matter in deed ; because my entry upon him is it lawful, Sfc. 198. And some make livery of seisin, and take by the same livery ; but then they do not make livery of seisin in their own right, or otherwise they do not take by the livery in their own right, fyc. except in special cases, $;c. And therefore if land be leased for life to J. S. the remainder to T. K. in fee ; and a letter of attorney is made to T. K. to make livery * [4 1 ] * °^ seisin, and he makes livery of seisin to A C0.LHt.52. the lessee accordingly ; in this case he takes by the same livery which he himself made ; but not from his own grant, for he made the same as servant to his grantor. 199. And it is said, if a man enfeoff two by the case in the text may be. The natural operation of livery of seisin is to pass the feoffor's whole estate out of him, and therefore, even when made to the grantee ot a particular interest, might it not be held to occasion a momentary sus- pension of the estate ? If so, it is apprehended this would be a sufficient severance of the jointure, in the case, put in the text, to enable the jointenant to take the remainder. And although the livery be not necessary to the estate of the lessee for years, yet when it is made to him previously to his entry, he takes his interest under it, and he is therefore a, medium through which the estate in remainder passes, and not a mere representative of the remainder-mail ; and the technical impossibility of siving seisin to one already seised is thus avoided. If these distinctions be refined, they are not more so than the rule which nullifies a feoffment made by a jointenant to his companion. Possibly, however, the case might, even in our author's time, have been supported by the more liberal course of holding the feoffment to operate as a confirmation or release, in fact or in law, according to cir- cumstances. See Yin. Abr. Feoffment, G. pi. 2 in marg. At this day, the deed or writing made essential to the assurance by the statute of frauds, would, in order to effectuate the intention of the parties, be held to operate as a release. Com. Dig. Release, A. 1. D. 1. and cases cited. FEOFFMENTS. 41 deed, and make a letter of attorney to one of them to make livery of seisin, and he makes li- very according to the deed to his companion ; he himself who makes the livery of seisin shall take by it, because he shall be in by the feoffor, and not by himself, fyc. And if a man seised of land in the right of his wife, lease it for life reserving rent, and make a letter of attorney to his wife to make livery of seisin, and she makes livery ac- cordingly, and the husband dies, and the wife accepts the rent, yet she shall have cui in vita ; for this acceptance cannot make the lease good, inasmuch as she is a stranger to the lessee, for he took nothing by her, although she made livery of seisin, for she made that but as servant to her husband, Sfc. 200. But if a man lease land for life, and the lessee enfeoffs a stranger thereof, and makes a letter of attorney to his lessor to make livery of Co.Liu. seisin accordingly, and he makes livery accord- 5 2, a * ingly, in this case it hath been said by some per- sons, that the lessor may enter upon the feoffee for a forfeiture, notwithstanding this livery of seisin made by himself; for they say the feoffee took nothing by him, for the lessor had nothing to do upon the land, except to see whether waste were done, or to distrain for his rent and services, if they were behind. And if the lessor be vouched, and he hath had no other possession in the same land, after the title of the writ in which he is vouched, but by the making of livery of seisin by force of the letter of attorney, the demandant may well counterplead the voucher, <$c 41 FEOFFMENTS. 201. And if my disseisor be disseised, and brings assise of novel disseisin, I may well give evidence of this disseisin ; and yet I shall have assise against my disseisor, fyc. And against that it may be said, that the lessor shall not enter for a forfeiture, because he is party to the wrong ; viz. to the discontinuance of the reversion ; for nothing of the freehold passeth to the feoffee, ex- cept by the livery of seisin ; and the lessor him- self made the livery, which is an agreement by him, that the feoffee shall take by force of the feoff- ment, Sfc. ; and he who is party to a wrong shall not take any advantage by the wrong (d). 202. As if lessor and his lessee for years, fyc. join in cutting down twenty oaks growing upon the lands leased, the lessor shall not punish the same in an action of waste, tyc. And the heir who Co. Litt. j s party to the death of his father shall not have an appeal thereof ; and if the issue in tail disseise the discontinuee of his father, and enfeoff his father of the land, and the father dies seised thereof, and the issue in tail enters, he shall not be remitted, Sfc. 203. And if lessee for life of land, lease it to " his lessor for years, the remainder to a stranger in fee, and make livery of seisin to the lessor accord- * [42] ingly, it * is not a forfeiture. And if tenant for term of life enfeoff the wife of his lessor of the same land, and make a letter of attorney to his lessor to (d) Lord Coke, however, makes no question upon lliis, but lays it down as clear that the lessor shall enter for the forfeiture. Co. Litt. 52. a. But that his own estate would have passed if he had made such livery as the attorney of his lessee for yean only. FEOFFMENTS. 42 make livery of seisin, and he makes it accordingly, this is not a forfeiture, SfC. And it is to be known, that if a man make a deed of feoffment of his own land to himself and a stranger, and make livery of seisin to the stran- ger according to the deed, all shall pass to the stranger, and nothing to himself; for he cannot give to himself as this case is, Sfc. 204. If a feoffment be made to a monk pro- An - ' J Hcn - fessed and a stranger by deed, and livery of seisin m.2 Hen 4, is made to the stranger according to the deed, all Condition,^. passes to him : But in the same case, if livery of seisin be made to the monk according to the deed, and not to the stranger, nothing shall pass there- by, Sfc. And if a man make a deed of feoffment to two, and one of them dies before livery of seisin made according to the deed, and afterwards livery of seisin is made to him that surviveth, according to the deed, all shall pass to him. 205. And to divers respects, a man shall take by the livery of seisin which he made in his own right, but then he shall not take in his own right ; except in special cases. And therefore, if dean and chapter are, and one of the chapter is sole seised in fee in his own right of land, and thereof by deed enfeoffs the dean and chapter, and makes livery of seisin according to the deed, in this case the feoffor gives and takes by the same gift in divers respects. And so shall it be of a mayor and commonalty, if one of the commonalty is seised of land in his own right, and thereof enfeoffs the mayor and commonalty, Sf-c. 42 FEOFFMENTS. And it is to be known, that such persons as e have possession of land for years, or for life, or <$r. cannot take livery of seisin of the same land, §c. 206. Now is to be shewn, how and in what manner livery of seisin ought to be made. And it is to be known, that of a rent recovered, if the P. 40 Ed. 3, sheriff put the party who recovered in seisin, by r herbs, or by a bough or a twig of a tree, growing upon the land out of which the rent is issuing ; or by a distress of cattle levant and couchant upon the same land ; or by a clod of the same land ; this is a sufficient seisin, although the day of payment of the rent be not yet come : But then the party cannot drive such beasts with him out of the same c place, Sj-c. An.3 Ld. 3, 20 - Butif a man cometoa rent by purchase, Src Assiu , 444. . . . then it behoveth that he be seised of such a thing as is of the nature of the rent, and not of another thing, except in special cases. 208. And if a man recover land, then he may enter into the land recovered, if his demand be T. 40 Ed. 3. certain, as of one acre, three acres, or a carve of H land, S)-c. or he may sue execution by habere Jacias seisinam, and then the sheriff may put him in seisin by delivering to him a bough, or a twig of a tree, or some herbs growing upon the land, or a clod * [43] *of the same land in the name of seisin, §c. and if A the recovery be of a house, then the sheriff may put him in seisin by delivering to him the ring of the door, Sfc. ; or otherwise he may open the house door, and tell him to enter into the house and take seisin thereof by force of the recovery, Sfc. FEOFFMENTS. 43 209. And the usual manner of delivering seisin [Ree$ v. of land by force of a feoffment, is to remove all wjghtwi persons from the land ; and then one, being by the 12 3-] land, in the presence of all the persons that are there, shews the cause of their coming ; and, then, if the feoffment be by deed, he reads the deed in English, and the deed being read, the feoffor en- ters upon the land, and takes a clod of the land, and delivers it with the deed, as his deed, to the feoffee in the name of seisin of the land ; to have, hold, and enjoy according to the purport of the deed, fyc. 210. And so, and in the same manner shall it be done, if livery of seisin be to be made by a stranger by force of a warrant of attorney, mutatis mutandis, Sfc. And if the feoffment be made by words only, it appears from the premisses, how and in what manner livery of seisin shall be made ; and also if the feoffment be made of a house, it appears from the premisses how and in what manner livery of seisin shall be made, BfC. ; and if a feoffment be made of a house or land by deed, and the feoffor in coming to the house or land with the feoffee and others, fyc. reads the deed of feoffment, and afterwards goes to the house or land, and delivers seisin accordingly, that is good enough ; although the feoffor remains and continues upon the land or in the house at all times after- wards, and takes the profits, at the sufferance of the feoffee. ail. And if a man lying upon his death bed in 37 Lil>. A>s. his house, make a charter of feoffment of the same j i mJ, ,\,,. house, and deliver the same to the feoffee, saying, P 1 - *>• F 43 FEOFFMENTS. ' have and hold this house according to the purport and effect of this charter,' and the feoffee by force thereof takes seisin, although the feoffor continue in the same house and there die, this is a good livery of seisin and a good feoffment, fyc. 212. And if a man lying sick within a manor, sell the manor to a stranger, and saith to him, he wills that he shall take his seisin presently, and commands all his servants to be attendant upon him as their lord and master, and thereupon the the vendee takes seisin, and perhaps gives to the servants twenty shillings to drink, and the tenants of the manor attorn to him, and the vendee goes from the manor about his business, and the feoffor dies in the manor, yet it is a good livery of seisin according to the words of the estate, fyc. And livery of seisin may be made of land, or a house within view. 213. And therefore, if I deliver a deed of * [44] feoffment * to you, and shew to you the lands or Feoffment 3 ' tenements > or lands and tenements, and say I will 47. that you enter into the same lands or tenements, or into the same lands and tenements, and have and hold them according to the purport and effect of the deed, and deliver to you the deed as my deed, and you enter into the lands, §c. this is a good feoffment, &c. 214. And if a man make a deed of feoffment to Alice at Stile, and afterwards the feoffor and the said Alice come to the church door to be married, and the feoffor delivers the deed to her, and shews to her the tenements comprised in the deed, and saith to her, that he wills she FEOFFMENTS. 44 shall have the same tenements which she sees, and which are comprised in the deed according to the purport thereof, and afterwards they are mar- ried, and the husband never after claims anything therein, but in the right of the said Alice, this is a good feoffment, although Alice does not enter ; for the entry of her husband is sufficient for her, 8fc. 215. And it is said, that if a man make a deed of feoffment in my name of land whereof I am seised, and comes to me, and prays me to deliver P. 43 Ed. 3, to him seisin of the land contained in the deed, Feo M m€nt > according to the purport and effect of the same deed, and I take the deed and read it, and then say to him, " Sir, I deliver to you this deed as my " deed in the name of seisin of the lands, tenements " and all things comprised in the deed, to have and «' to hold them according to the purport and effect " of the deed;" and by force thereof the feoffee presently enters, this is a good feoffment, fyc. 216. And if there be father and son, and the father is seised of land and enfeoffs his son thereof, and the son, after livery of seisin made to him, suffers his father to occupy the land, who is 39 Lib.AjS. content to occupy it at the will of his son ; and p fo i a8 afterwards the son comes to the parish church of the town where the land lies, and in the hearing of the parishioners saith to his father, ' father you have given to me lands,' (and declares the cer- tainty thereof,) * Sfc. and as fully as you have given them to me, I give them to you again,' and the father by force of these words presently enters into the lands, and occupies them ; it hath been 1 2 44 FEOFFMENTS. said that this is a good feoffment ; which is not law at this day, as it seems, Sfc. 217. But a man may assign dower to his wife at the church door in one county, of land in another county, without deed ; the reason is, be- cause the assignment of dower cannot be made before the contract be finished between them at the church door, and then they are but one per- son in law, fyc. 218. And sometimes livery of seisin shall be void by the presence of a person, who is not a party to the livery of seisin, upon the land and tenements whereof livery is made. And as to that, know, that when two men come upon lands C45J and tenements* together to claim the same lands Con'firm'a- an( * tenements, and one of them claims by one Hon. title, and the other claims by another title, the law adjudges the possession in him who hath a rightful title to the possession ; for if a disseisor of one acre of land, die seised of the same acre in fee, and the disseisor's heir and the disseisee come upon the same land together to claim it, the law will adjudge the possession in the heir of the disseisor, and not in the disseisee ; yet the disseisee habet majus jus ad rem, viz. in jure, to have the land, than the heir of the disseisor hath: but the heir of the disseisor hath majus jus in re, viz. in possessione, to have the land, than the disseisee hath. And therefore, fyc. Litt. ch. 219. And if a man enter into my lands by Warranty. wrongful tit i e> and X being there> he enfeoffs a stranger thereof, and delivers to him seisin, this is void ; for he cannot give seisin before he him- FEOFFMENTS. 45 self hath seisin, and he had not seisin at the time of the livery of seisin ; for the law will adjudge the possession in me, who have right to the pos- session ; because that I am present there at the time of the delivery of seisin. 220. And if two jointenants are in fee, and one 2 Lib. Ass. of them enfeoffs a stranger of the whole against 5 Lil ^ Ass the will of his companion being upon the land, P. 8. pi. 12. nothing passes by this feoffment but the moiety ^ 8 °' b ^ ^ Sfc. ; causa patet. And if a lessor for years enter 7. Bettis- upon the lessee, and against his will (he being ^"j^* "' -1 upon the land,) enfeoffs a stranger thereof by deed, this feoffment avails nothing as a feoffment ; for a feoffment cannot take effect without livery of seisin, and the lessor cannot make livery against the will of the lessee ; the lessee being upon the land, because the law adjudges him in possession, SfC. and without possession a man cannot make livery of seisin, and so, fyc. 221. And that is the cause, that if a lease for years be of land, and the lessor grants the rever- sion to a stranger, and the lessee attorns, the freehold shall pass without livery of seisin ; because' the lessor cannot make livery of seisin ex- cept he do wrong to the lessee, fyc. 222. But if lessee for years enfeoff a stran- [Metteford'i ger, the lessor being upon the land, yet the land ca - D y- shall pass by the feoffment ; but perhaps if he 20 r^ * v continues upon the land claiming it after the E'-rington, feoffment, the same shall countervail an entry for '-> a forfeiture. And the reason wherefore it passeth by such feoffment is, because the lessor cannot meddle with the possession of the land during 45 FEOFFMENTS, the term ; but he may come and see whether waste be done, or to distrain for his rent if it be behind, fyc. 11.2 Ed. 3, 223. And if a husband and his wife purchase eo M- &• j an{ | jointly in fee, and the possession is executed in them accordingly ; and afterwards the husband enfeoffs a stranger in fee, and the wife saith she will not agree to it, nor go out of the land, but continues there at the time of the livery of seisin : yet, notwithstanding this, all the land passes by the feoffment. T. 22 Ed. 4, 224. But if mayor and commonalty be jointly * ' seised of any land in fee, and the mayor against the will of the commonalty enfeoffs a stranger of the land, the commonalty being upon it when livery of seisin is made, nothing passes by this feoff- ment, fyc. 225. And if a dean make a feoffment without the assent of the chapter, in his own name, of * [46] land of which * he is jointly seised with the chap- Lut. ch. terj t ] ie c j ia pt er being upon the land at the time ance , of the livery of seisin, nothing shall pass by this livery. But if an abbot make a feoffment, with- out the assent of the convent, in his own name, of land of his monastery, the convent being upon the land at the time of the livery of seisin, yet the land shall pass by this feoffment, $c. 226. Now is to be shewn, when by livery of seisin of one acre of land, or of parcel of an acre of land, or of one tenement, in the name of many acres or tenements, all will pass. And as to that. it is to be known, that if a feoffment be made generally of all the land winch the feoffor hath in FEOFFMENTS. 46 the county of Middlesex, and he hath lands in 27 Lib.Ass. twenty several places in the same county, and * > ; f) ' 2, *' makes livery of seisin in one acre, or in one house, in the name of all the lands and tenements which he hath in the same county, by tins livery of seisin all will pass, 8$c. insomuch that if such a feoffment be pleaded by deed, of one hundred acres ; and the feoffor saith, that as to twenty acres, nothing passed by the deed, this is not a plea ; causa patet ex premissis. 227. But by livery of seisin in one county, the t. 9 Hen. 7, lands and tenements in another county will not 2 7* pass ; yet if the scite of the manor of Dale be in the county of Essex, and parcel of the same manor extends into the county of Middlesex, and a feoff- ment be made of the manor of Dale, and livery of seisin is made of the scite (e) of the manor which lieth in the county of Essex, by this livery of seisin the parcel of the manor which lieth in Middlesex passes, because it is parcel of the thing, viz. the manor, of which the feoffment was made, and which is but as one thing to such purpose, eye. 228. But if a feoffment be made of the manor T. t> Ed. 4, of Dale in Dale (e-), which manor extends into Dowrr ' ,:? - Dale and Sale, and livery of seisin is made accor- dingly in Dale, by this feoffment nothing passes (e) Note these words; and see Sir M. Hale's and Mr- Hargrave's note 2. Co. Litt. 50. a. Mr. Hargrove appear? to have misconceived the meaning of the text in sec. 227. See the addition to that note in the 18th edition of Coke Littleton. The difference between a feoffment of two acres, and of a manor which is an entire thing, and ought to pass by one livery, is obvious; and therefore Carew v. Marsh, Dyer, 246. b. doe6 not oppose Perkins. *4 46 FEOFFMENTS. but that which is in Dale ; because the feoffment is of no more than that which is in Dale, and the livery of seisin is made in Dale, and nowhere else, Sfc. T. 9 Hen. 7, 229. And if a man be disseised of two acres rc'o Litt * n severa " counties, and the disseisee enters •25a. b. into one acre in the name of both acres, yet this 5 °" a, J entry shall not extend to the acre lying in another county, and into which the entry was not made. T. 1 Hen. 7, 230. And if in an assise the plaintiff make his g9" plaint of the manor of Dale, fyc. and the tenant 65-6. (in pleads a feoffment of parcel of the said manor Finch s by ( l ee( | an( j shows a deed of another manor, case.) . . viz. of the manor of Sale, this is nothing to the purpose to make that pass by the same deed; for the manor of Dale cannot be the manor of Sale, nee e converso. But if he had pleaded a feoffment of a moiety of the manor of Dale, by the name of the manor of Sale, it should be other- wise ; because the manor of Dale may be known by the name of the manor of Sale, Sfc. 231. And if a man be seised of land, and also of a rentcharge issuing out of land in the same * [47] c o unt y m which the land whereof he is * seised is, or in another county ; and gives the land and [n. (c) fo. rent by a deed, bearing date in the county where 25, ante.] the land is whereof he is seised, and livery of seisin is made of the land, and the deed delivered as his deed, yet the rent shall not pass before the attorn- ment of the tertenant of the land out of which it is issuing : but if the tenant attorns in the life of the grantor and grantee, then the rent passes, notwith- standing that the tenant who attorns is another FEOFFMENTS. 47 man than he who was tertenant at the time of the grant, and although the deed bears date in another county, than the land is out of which the rent is issuing. 232. And it is said, if a man be disseised of Co. Liu. two acres of land in one county, and he enters 15- into one of the acres claiming that acre only, and makes a deed of feoffment of both acres to a stranger, and makes livery of seisin according to the deed in the acre into which he entered, that both acres shall pass to the feoffee ; because this claim is nothing to the purpose, for the feoffor had a right of entry before, §c. and both acres are in one county, so that his entry into one acre shall be entry into both acres, notwithstanding the claim, fyc. Against which it maybe said, thatp.gHeu.' the acre into which the feoffor did not enter shall 2 T- not pass by the feoffment ; for when a man is out Q ,j ^ of possession of a thing severable, he is at liberty tore-continue his possession of it in which part he will ; and shall not be compelled to re-continue his possession in all in despite of him. 233. And therefore, if a man be disseised of two acres in one county, and bring assise of one of them, Sfc. as he may, and recovers the same acre, and enters into it by force of the recovery, the entry into this acre shall not be said an entry into the other acre ; although his entry into the same acre be lawful ; and although both acres are in one and the same county ; except he enter into the same acre, in the name of both acres, Spc. Then, in the principal case, the disseisee was out of possession of both acres ; and he might have *5 47 FEOFFMENTS, suffered the disseisor to continue possession in them, if he had willed : And therefore, inasmuch as the acres are severable, and the disseisee hath entered but into one of them, claiming that acre only, this entry cannot give him possession in both acres ; and although after his entry he hath made a deed of feoffment of both acres, and hath deli- vered seisin according to the deed in the acre into which he entered, claiming that solely ; yet this cannot be said an entry into the other acre, be- cause the circumstance of this feoffment doth not give to the feoffor possession of the acre in which the livery of seisin was made ; for the possession of that was in the feoffor by his entry made before ; and so, Sfc. Co. Litt, 234. And if lord and villain be, and the villain purchases in fee two acres of land lying in one county, and possession of them is executed to him accordingly ; and the lord of the villain enters into one acre, not claiming the other acre, and * [48D afterwards he * makes a deed of feoffment of both acres to a stranger, and makes livery of seisin in the acre into which he hath entered, according to the deed, yet the acre into which he did not enter shall not pass by the feoffment, Sec. 235. And yet a man may enter as servant to the lord, and by his commandment, and it shall be good ; but notwithstanding that the feoffee do so, yet he cannot take it by the feoffment ; for a man cannot make livery of seisin before lie him- self hath possession, and the lord at the time, viz. when he made livery of seisin had not possession but only of the acre into which he entered, Sfc. The FEOFFMENTS. 48 same law is, where a man hath title to enter into two acres for a condition broken, Spc. mutatis mu- tandis. And so shall it be where a man hath title of entry into two acres of land holden of him, because they are aliened in mortmain, fyc. 236. Now is to be shewn, when the feoffees shall have an estate of inheritance, without speech of their heirs or successors. And as to that know, it is a common learning in law, that if lands are given in frankmarriage to a man with the kins« M.31 Ed. 3. woman of the donor of the whole blood, by these ^ Q ' L °' f words (frankmarriage) they have an estate in spe- 21. a. \>.~\ cial tail if they intermarry. And if in such case the husband dies, and the same donor gives more lands in frankmarriage with the same woman to a second husband, this is a good frankmarriage. 237. And a gift in frankmarriage made after h. 4 Ed. 3, the marriage, is good enough ; and yet some have * all > 6 - said the contrary ; and their reason is, because the gift in frankmarriage ought to be made for advancement of the kinswoman of the donor by marriage ; and therefore such a gift made to such persons after the marriage cannot be intended to that purpose. Against which it may be said, that such a gift made to such persons after the mar- riage between them, may be the cause of the marriage, as well as if such a gift had been made to them before the marriage, fyc. 238. And if after such gift in frankmarriage, and after the marriage solemnized between the donees, they are divorced at the suit of the hus- 12 Lib. Ass. band, in this case, the woman shall hold the whole P 1, *-• land, and the husband shall have none of it. But f6 48 FEOFFMENTS, if such a divorce be between donees in special tail by express words, yet they shall hold the land so given jointly, during their lives, fyc. M.22Ed. 3, 239. And if lands or tenements be devised by Dense, w. w jj^ ^ Q a man an j j^g ass jg nS} { n perpetuum ; by [Post. s. these words he shall have a fee-simple. More shall 557- & be said of that in the Chapter of Devises, Sec. note.] * . ' 24,0. And if land be given to a mayor and T. 22 Ed. 3, ^ . _ l • 1. 1 • 1 Feoffment, commonalty for their lives, by intendment they }9- have an estate not determinable. So it is if a Ibid. 42. ' feoffment be made of land to a dean and chapter without speech of their successors, fyc. * [493 2 4 1# And if m y feoffee in fee of *land, do 39 Llb - A-ss. re-enfeoff me of the same by deed, reciting in the P. 12. Feoff. J . ° 88. same deed, how I enfeoffed him of the same land, to have and to hold to him and his heirs, and saith farther in the same deed, that as fully as I gave the lands to him, he gives them to me back again, and delivers the deed to me as his deed, and seisin of the land according to the deed ; in this case it seems I have an estate of inheritance in this land, although it is not given to me and my heirs ; because my estate relies upon an estate of inheritance, recited in the same deed ; tamen qucere (_/")• (/) There appears no reason to doubt this: Lord Coke, (l Inst. 9. 1).) in a nearly similar case, states distinctly that the feoffee hath a fee-simple : quia verba relata hoc maximt operautur per referentiam ut in esse videntur. It is remark- able that the case 39 Lib. Ass. pi. 12. cited by Perkins and Lord Coke as their authority, should have been said by Mr. Hargrave (Co. Litt. 9. b. n. 6.) audit seems by Rolle also, to have been adjudged contra ; when, in fact, that case goes much further ; for there, after a father had enfeoffed his younger son in fee-simple, he, by inappropriate words, and neither FEOFFMENTS. 49 242. And if I am enfeoffed by deed of land, to have and to hold the same to me and my heirs, m. 14 lieu. and by the same deed the feoffor binds himself *• ' 3" !/ " r " . a rant y> "• and his heirs to warrant the same land, in forma prcedicta, by these words I and my heirs shall vouch by this warranty ; and yet neither I nor my heirs are named in the clause of warranty. But by these words (forma prcedicta) the warranty relates to the precedent words in the deed, be- cause it is all in one and the same deed. And the nature of a warranty is properly to run with the estate, &;c. And these words (in forma prce- dicta) help this matter, fyc. 243. But if land be given to me by deed, to T.2oHsnG. have and to hold to me in fee, without speaking ^°M m£nt > • of my heirs ; and livery of seisin be made to me according to the purport of the deed ; by this feoffment, I have but an estate for life, Sfc. A feoffment is the most ancient and necessary conveyance, and clears all disseisins and other wrongful and defeasible estates when the entry of the feoffor is lawful, which neither line, recovery, nor bargain and sale by deed indented and enrolled doth. Co. Litt. 9. a. 49. a. And a feoffment made by any person in possession of the land will pass it to the feoffee in fee, or for any less estate of freehold, according to the terms of the gift ; and this however weak or tortious the possession of the feoffor may be : as if he be only tenant for years, by statute merchant, at will, or by sufferance. Co. Litt. 330. b. 2 Inst. 413. This, according to all the old writers upon the law, is the essential and distinguishing upon nor in view of the land (as it seems) gave it back to his father again ; and although it was objected that this could not amount to either a feoffment or release, judgment was given for the heir of the father against the younger son. And the reporters qtuzre cautam. Perkins, however, did not admit this case as an authority to its full extent ; see his statement of it, s. 216, ante. FEOFFMENTS. quality of a feoffment ; and it is matter of surprise to find that Perkins has not mentioned it in the preceding chapter expressly; for it »is evidently implied in bis language in sec. 188.219. and 222. But this quality of a feoffment has been denied in several modern cases, according to which when the feoffor ha snot the rightful seisin, his feoffment is not an actual disseisin, but only a disseisin at the election of the owner of the estate. 1 he first of these cases is Taylor d. Atkyns v. Horde, 1 Burr. 60. Cowp. 689; also stated and fully considered by Mr. Butler, in a valuable note on Co. Litt. 330. b. in which he has shown that that decision might be sustained, under the pectdiar circumstances of the case, without affecting the general principle. That case was for many years regarded with distrust, or at least as an exception to a general rule. It has, how ever, been avowed and followed in the recent cases of Doe v. Moody (K. B. 1817), stated 2 Brest. Convey, xxxii. and 1 Sand, on Uses, 40. and Doe d. Maddock v. Lyius, 3 Barnw. & Cr. 388. In the latter of these cases, Mr. Preston's learned and laborious argument in support of the feoffment, appeared to be sustained by every legal principle, and the unvaried opinions of five centuries : but the decision was against him. It seems, therefore, that for the purposes of practice, feoffments are now to be consi- dered as inoperative, except when made by the rightful tenant of the freehold. FINES, RECOVERIES, USES. These extensive and prominent titles in modern works relating to conveyances, are scarcely adverted to by Perkins, who wrote at a very peculiar period of the history of those important branches of the law. With respect to Fines, this may possibly be considered an omission, for these were an ancient mode of assurance at the common law, and several detached points upon their operation are scattered in the text of our author. But in his time no settled construction had been put upon the Statute of Fines (4 Hen. 7. c. 4. a. d. 1489), as it enables tenants in tail to bar their i«sue ; for this was not judicially acknowledged before the 19 Hen. 8. (a.d. 1528), and even then a statute (32 Hen. 8. c. 36.) was thought necessary to establish the law upon the point. As regarded Recoveries, about half a century hart elapsed since the decision of Taltarum's case (12 Edw. 4. a. d. 1473), from the judicial admissions iu which they are supposed to have been adopted as common assurances to convey entaiied estates. The principles established by that case had been partially acted upon, and common recoveries were daily FINES. 49 b. gaining ground ; but they can hardly be considered as having come into general use earlier than the reign of Elizabeth. Uses were not concerted into legal estates till some years after the publication of our author's work, although cestui que use had then for many years had a power of legal dis- position over his estate, under the statute 1 Rich. 3. c. 1. (a.d. 1483.) But under such circumstances, those different heads must have offered a tempting iield for observation; and the omission of discussion upon them by our author, affords strong reason for thinking that his work was written many years before the time when it was first printed. The many excellent treatises upon those subjects have laid open to the student all the valuable and interesting learning con- nected with them ; and the Editor proposes here only to apprize or remind him of a few points which are sometimes overlooked or misunderstood in early reading. Fines. Is modern practice these assurances are used : — 1 . To pass the estate or release the right of a feme covert. 2. To bar an entail. 3. To bind a contingent interest ; and, 4. To gain a title by nonclaira. On their use for the first of these purposes it appears suffi- cient to observe, that a fine is equally requisite when the estate of a feme covert is equitable only, as when it is legal ; and as well when she has the legal estate in trust only, ;.-< when she is entitled to it beneficially. But when an equita- ble estate is given to her for her separate use, she may dis- pose of it by deed only ; at least this is the prevailing, and seems to be the correct opinion. Vide Bumaby r. Griffin, 3 Ves.jun. 266. and 1 Brest. Convey. 34-5. -Scd vide 1 Sand. Uses, 345. 2. Considered as conveyances of entailed estates, fines are in many cases more important, because more available than common recoveries. Fines may be levied in vacation as well as in term ; and a line with proclamations levied by a tenant in tail in possession, remainder, or reversion (for the imme- diate freehold in any party is not necessary), bars his issue, and conveys a base fee determinable only on failure of issue of the original donee in tail. Consequently, where there is an immediate remainder in fee, expectant upon an estate tail, if the remainder-man join in the fine, the conuzee nuiv acquire the fee-simple; for each party conveys all that la- may, and on the union of the two estates the base fee imme- diately merges in the fee-simple. Thus where an estate was settled on A. for life, remainder 49 C. FINES. to B. C. and D. as tenants in common in tail, with cross remainders in tail between them, remainder to E. in fee ; the tenants in tail wished to make a partition of the estate, but A. the tenant for life, refused to coiicut in a recovery ; they therefore procured E. to join them in a fine, which was levied with proclamations, and the uses declared of the lands in severalty, subject only to the life estate of A. The object was thus accomplished as effectually as it could have been with her concurrence. But this mode of acquiring the fee-simple is sometimes objectionable, where the estate tail and the remainder in fee are vested in one person by different titles ; as it would then let in any previous charges upon the remainder in fee. Vide Watk. Princ. Convey, chap. Fine; Sugd. Vend, and P. 313. And when a fine, either with or without proclamations, is levied by a tenant in tail in possession, it creates a disconti- nuance, and passes a tortious fee-simple, which cannot be defeated by the remainder man or reversioner, when his right to the possession accrues, except by a writ of formedon. And if he be free from disabilities, and does not avail himself of this remedy within five years after his right accrues, if the fine was with proclamations, or within twenty years after if it was without proclamations, the right which was vested in him is barred for ever. So one who " has merely a contingent or executory inte- rest," a right, or even a bare possibility " in tail, may by levying a fine with proclamations bar his issue, or bind them by estoppel," And this fine may ultimately prove a bar to collateral claimants. 1 Prest. Convey. 218. &c. where these points are illustrated ; but they are of rare occurrence in modern practice. Et vide also, Atherley's note (i), Shep. T. 26. 3. A bare right, or contingent interest which is not trans- ferable at law, may in many instances be bound by a fine sur concessit. As if an estate be given to A. and B. and the heirs of the survivor; or to A. for life, remainder to B. for life, remainders over, with the ultimate remainder in fee to the heirs of the survivor of A. and B. In neither of these instances can the contingent interest be transferred at law ; .and the general opinion is, that it would be destroyed by a fine sur conuzance levied to a stranger. But if A. and B. levy a fine sur concessit cf the estate to a stranger, for a long tertn of years, without impeachment of waste, this will bind the interest when it vests, and give the beneficial ownership to the conuzee ; and a conveyance of the barren and unprofita- ble remainder in fee may be easily secured, by covenants from the conuzors for its conveyance upon its falling into possession. Pearne's Cont. Rem. 356. Butl. Co. Litt. 191. a. RECOVERIES. 49 d. 11.1.(78.) 1 Prest. Convey. 303. Atherley's Shep. T. 14. Sugd. GL'b. on Uses, 123-4. 4. " That a iine may operate as a bar by nonclaira, one of the parties to it must have an estate of freehold" in pos- session, remainder or reversion. If a tenant for life levy a fine air conuzance in fee, with proclamations, this is a forfeiture of his estate ; but it devests the estate of the remainder-man or reversioner, who, how- ever, may enter immediately for the forfeiture; and if he does not enter within five years after the death of the tenant for life, he is barred for ever. A fine does not operate by nonclaim against estates, but only against adverse rights, existing merely as such at the time of levying the fine, and estates turned to rights by the fine. Therefore a fine with proclamations levied by the tenant of a. particular estate in remainder or reversion, will be inopera- tive, as against both the precedent and subsequent estates. But the immediate FREEHOLD is not generally essential to the operation of a fine as a bnr b}' nonclaim (and it is appre- hended this is not intended to be denied by the expressions in Sugd. Gilb. on Uses, 121-2) ; therefore if the remainder- man, or reversioner in fee levy a fine with proclamations, this operates as a confirmation of the precedent particular estates, and as a bar to rights adverse to the seisin out of which the particular estates were created. Co. Lilt. 298. a. Twist's case, Shep. T. 28. 1 Prest. Convey. 228-9. And, understood in this sense, the language in Armttrong v. Whole- sey, 2 Wils. 19. is correct. So in the case before mentioned, where a fine with pro- clamations was levied by tenants in tial in remainder, and the remainder-man in fee, it was considered clear that the fine confirmed the precedent life estate, but would be as effectual a bar to claims adverse to the seisin of the settler of the estate as if the tenant for life had been a party. All the preceding points will be found fully explained in Watk. Princ. Convey, by Preston, chap. Estate Tail and Fine ; Prest. Convey, vols. 1 and 2 ; Shep. T. chap. Fine, ; ;xnd Cruise's Digest, title Fine. Recoveries. It is almost unnecessary to observe, that recoveries may be suffered as well of equitable as of legal estates. Recoveries may also be suffered of copyhold estates in the lord's court. Recoveries may also be suffered by tenant in tail of either an immediate or remote remainder or reversion, with the; concurrence of the tenant of the immediate freehold. 49 e. RECOVERIES. In all cases it is absolutely necessary that the writ of entry be brought against the tenant of the immediate freehold, that is, the tenant of the legal freehold, where the estate tail is legal ; and the tenant of the equitable freehold, where the estate tail is equitable. And a recovery of a bgal estate tail on a writ of entry against the legal tenant would be good, although he had not the equitable interest in the freehold. And an equitable recovery is good, although the legal as well as the equitable freehold were vested in the tenant to the writ. (Phillips v. Brydges, 3 Ves. jun. 120 ; 1 Prest. Conve}'. 23.) This point is now universally conceded, al- though doubts were formerly entertained upon it. Sugd. Vend. & P. 325-330 (6th ed.) And even when an equitable tenant for life, or in tail, has mortgaged his equitable interest for an estate of freehold, he is still competent alone to make a tenant to the writ, for suf- fering an equitable recovery; and of course such a recovery on a writ against him would be good. 1 his point (which also had been considered doubtful, Butl. Fearne C. R. 61 ; 1 Prest. Convey. 24.) was decided in the recent case of Nouailles v. Greenwood, 1 Turn. 26. When a recovery is suffered by a tenant in tail in posses- sion, it is not essential that he should convey the freehold to another, as tenant to the writ ; for a recovery suffered upon a writ against himself (called a recovery with single voucher) %vould bar the estate tail of which he is seised, and all re- mainders and reversions expectant upon that estate : and a case very rarely, if ever, occurs in modern practice in which this would not be sufficient. But when the writ is against another as tenant of the free- hold, and the tenant in tail is vouched, he comes in of all estates tail of which he is or ever was seised ; and conse- quently by this means all those estates, and all remainders and reversions expectant upon them, are barred : this is called a recovery with double voucher, and is that which is almost always made use of in practice. The voucher by the tenant in tail is essential in every case. The statement of this fact, where it really exists, is frequently improperly omitted in abstracts, but which may probably arise from y the statute. This, which often appears to the student, and lias in fact sometimes been treated (Doe v. Bigg, 2 Taunt. 209.) us a capricious departure from principle, is in strict accord- ance with the rules established before the statute ; since by them the interest of 73. would not have been held a use ; for we are informed by Bacon, (on Uses, p. 10), that one of the three properties of a use was, that the cestui que use should be allowed to take the profits. The law is the same on a conveyance to A., in trust for the separate benefit of B., a feme covert; for otherwise the intention of the gift would be defeated : as the legal estate would vest in her husband in her right, and he might de- prive her of the profits. And it may be laid down generally, (1 Prest. Estates, 185.) that wherever it is necessary to the performance of the trust that the legal estate should remain in the party taking by the common law, it will do so; and the trusts will not be executed by the statute. It is sometimes difficult to deter- mine the extent of the estate retained by the trustees in cases of this description. On this see 1 Sand, on Uses, 245, &c. But the converse of this is not true ; for the legal estate will be transferred to the first uses declared of the common law seisin ; and although such construction may be contrary to the intention of the parties, any subsequent (intended) uses will be mere trusts ; for there is no common law seisin to serve them, that being exhausted by the first uses. This is what is meant by the expression that there cannot be a use upon a use. Therefore if an estate be conveyed to A. and his heirs, to the use of or in trust for B. and his heirs, to the use of or in trust for C. and his heirs ; or unto and to the use of A. and his heirs, (although this is not a use within the statute), to the use of or in trust for C. and his heirs; the legal estate is executed in B. in the one case, and in A. in the other, and ■C. has but an equitable interest. And it is in consequence of this that uses cannot be de- clared in a bargain and sale of a use, upon the estate of the bargainee: for he originally takes only a use, which is exe- cuted in him by the statute. So in the ordinary case of a power to A. to appoint to such uses as he thinks fit, (in the exercise of which mistakes are frequently made,) A. cannot convey the land, but has simply a power of nominating the persons to take the use, or of declaring the uses of the conveyance by which the power was given : therefore, if he affect to appoint the land to B. and his heire, to such uses as C. shall appoint, &c. or uses. 49 h. to any uses, this operates as an appointment of the use only to B., or as a nomination of him as the person to take it : the use is accordingly executed in B. by the statute; and C.'s power will exist only over the equitable interest. A. must effect his object by appointing the estate to remain, or de- claring that the former conveyance shall enure, to such uses,. &c. immediately, and without interposing any person ; as these usei are served out of the seisin of the party to whom the common law estate was given, by the instrument creating the power. And the use and the profits of the land being to many purposes convertible terms, it follows, that if A. having a general power of appointment to uses, appoints a rent- charge (i. e. a portion of the profits — of the use,) to A. and his heirs, habendum to A. and his heirs, to certain uses; the legal estate in the rent will be executed in A. by the statute, and the uses declared of it be mere trusts. But the statute, as has been seen, applies only where one person is seised to the use of or in trust for another ; there- fore if land be conveyed to A. and his heirs, to the use of A. and his heirs, the statute does not apply ; and A. is in by the common law. This declaration of the use in favour of A. is sufficient, however, to prevent the operation of the statute upon any subsequent uses, declared in favour of other persons. As a consequence of this, a conveyance made to A. and B. to the use of A. and JB. and their heirs, is not open to the objection that the seisin is insufficient to serve the whole use, or that the declaration of the use cannot enlarge the estate granted; for here all the several words are construed as limit- ing the estate ; and not separately as a limitation of the estate and declaration ot the use. Jenkins v. Young, Cro. Car. 230 ; ibid. 244-5. But such declarations may diminish the estate of the grantee: thus, if A. for a valuable consideration convey to B. and his heirs, habendum to B. and his heirs, to the use of B. for his life, or for ever; B. would take an estate for life only, and the use in fee would result to the grantor ; al- though if no use had been declared B. would have taken the fee. It is now well settled, that under conveyances taking effect by the statute of uses, a man may at the same time have a general power of appointment over an estate, and the fee- simple therein. As in the case of Hay v. Fung, 5 Madd. 310 ; 5 Barnw. & Aid. 561. where an estate was conveyed to A. and his heirs, to such uses as B. should appoint, and until and in default of appointment to B. in fee. And it is agreed that such a power cannot subsist with, or be given over an. estate taking effect by the common law. 49 i. uses. Therpfore if an estate be conveyed to A. in fee, to such uses as lie shall appoint, and until and in default of appoint- ment to the use of himself in fee ; whether this power of appointment be or be not good, depends upon the question whether or not A. is in by the common law. From some of the preceding observations it might be thought that no doubt could be entertained upon this point ; it has, however, been contested for some years. Mr. Sugden maintains that the power is good, (Treat, on Powers, 126-133. 3^ e( ^-) > and so it appears to have been decided in Moreton v. Lees, (shortly stated, ib. 330) ; but it is not known whether the point was made in that case. This is strongly opposed by Mr. Sanders, (1 Uses, 155-161. 4th ed.) and Mr. Preston. (Prest. Watk. Convey, ch. Dower ; 2 Prest. Convey. 481; 3 ib. 271 ; 1 Prest. Est. 180.) Mr. Butler's opinion upon the point cannot be collected from his notice of it, Co. Litt. 271. b. n. 1. VI. The great body of the profession, it is believed, think with Messrs. Sanders and Preston. The mode in which contingent uses are executed by the statute has been, and still is, a subject of great difference of opinion among the most eminent members of the profession. It was long the prevailing doctrine that the feoffees or re- leasees retained a scintilla juris, or possibility of seisin, to serve these contingent uses when they should come into esse ; and that when uses were limited by way of remainder, to persons not in esse, if the seisin were divested while the uses remained in contingency, by disseisin of the particular tenant or otherwise, the feoffees, by virtue of their scintilla juris, might enter to revest their seisin ; and that until by some means this seisin should be revested, the contingent uses could not be executed. By the modern opposers of this doctrine at least, it is on the contrary contended that nothing remains in the feoffees, but. that the contingent uses take effect as they arise, by force of and relation to the ori- ginal seisin of the feoffees or releasees : and whatever opinion may be formed upon the point theoretically, this seems to be the only construction by which the past and present practice of the profession in such cases can be justified. The doc- trine of the scintilla juris appears to be supported by Dyer, (Chudleigh's case, 1 Rep. 120) C. B. Gilbert, Mr. Butler, Mr. Sanders, and Mr. Rowe, (the learned editor of Bacon on Uses) ; and opposed by Lord Coke, Sir F. Bacon, Mr. Fearne, Mr. Preston, and Mr. Sugden. This notice of it is sufficient here. The points are perhaps best stated in Gilb. on Uses, 127, &c. and Mr. Sugden's note on p. 131, [296] ; after which may be read Butler's Fearne C. R. 290, &c. and Mr. Butler's note (h) there ; Butler's Co. Litt. 271. b. n. 1. IV! : 1 Sand. Uses, 110; Rowe's Bacon on Uses, EXCHANGES. 49 k. 151, (note 90.) ; 1 Prest. on Estates, 156, &c. ; and Sugd. on Powers, chap. 1 . s. 3. The Editor has met with nothing which in his opinion con- veys to the mind of one unacquainted with the subject, so clear and accurate an idea of the principles and leading fea- tures of the law of uses, as Mr. Sugden's excellent Introduc- tion to his edition of Gilbert on Uses and Trusts ; if this be followed by Mr. Butler's note on Uses, Co. Litt. 271. b. the chap, on Uses in Watk. Princip. Convey, by Preston ; Sugden's Gilbert on Uses and Trusts ; 1 Prest. on Estates, 142-195, (some of the points there taken are, however, better expressed in detached passages of the same author's work on Abstracts), and Sanders on Uses, there can be few points connected with this learning of which the student will be ignorant. Sheppard's Touchstone, chap. Uses, and Rowe's Bacon on Uses, would of course be referred to. CHAPTER IV. Of Exchanges. [Preston's Shep. Touch, chap. Exchange. Viner's Abridg- ment, title Exchange. Comyns's Digest, title Exchange.'] 244. JNOW are we to speak of exchanges, Sf-c. Co. Litt. 50, Exchanges may be made of such things, and of^ 1 ' such estates, as may pass by livery of seisin : and if the things exchanged are in the same county, the 9 Ed. 4,41, exchange is good without deed, except in special ; '7\- ,"" *« cases. As put the case : an exchange is made between J. S. and T. K., of land which one of them hath in the county of Middlesex, for laud which the other hath in the same county fyc. But if the lands of J. S. of which the exchange i» made, are in one county, and the lands of T. K. of which the exchange is made, are in another county, then the exchange ought to be by deed indented ; if the estate which the parties take by the exchange be an estate of freehold or inherit- 49 EXCHANGES. ance : but if the estate in the exchange be for years, then the exchange is good and effectual without deed, notwithstanding that the land of the one which is taken in exchange, is in one county, and the land of the other which is taken in ex- change, is in another county, so Ed. 1. 2AK. But if exchange be made of any thing Lrcltavge, . _ ~ . . ° . ,, ca. i6. which lieth in grant, and cannot pass by livery or seisin, then the exchange ought to be by deed, of whatever estate the exchange is taken ; although every thing of which the exchange is made is in one and the same county. 246. As put the case: an exchange is made * [5°] of rent for land ; *and the land out of which the > Ed. 4, i\. rent i s issuing, and the land of which the exchange 'sufficientum huic libello concordant htm compertum habebis, 8cc. 275. Now is to be shewn, what estates the [Eton Col- parties to exchanges ought to have. And as ofWinton\ to that know, that the estate of each party to the WUs. 483. exchange ought to be equal, as my master Little- " 6 ? cii ton hath well shewn and declared. And there- T. 38 Ed. 3, fore, if an estate pour [autre] vie be expressed to x^'Ed^ one party upon the exchange, and no estate be 22, p. expressed to the other party, fyci this exchange is ryan ' not good [f)\ For although both parties to the ex- e change have an estate of freehold, yet the estate for the term of another man's life is not so high an estate of freehold, as the estate of him who hath an estate for the term of his own life, fyc. 276. But if lessee for life be of one acre of land, and he gives one other acre of land to his f lessor in fee tail, in exchange for a release of all his right in the acre, which the lessee holds for his life, to have and to hold the same acre to him and his heirs of his body begotten, this is a good exchange. (/) " Q- ^ Sh- T. 296. in transcribing this, uses this ex- pression, 'it is said,' and therefore he probably doubted it; and the reason given [by Perkins] after the word yet, shows there is some mistake in the copies or the printer." MS. 7iote by Mr. Serjeant Hill, in Itis copy of Perkins, the last English edition. This doubt of the learned serjeant arose from the omission of the word autre or another ; for in the former English editions, estate for life is printed instead of estate your autre vie. The passage he notices in Shep. Touchst. appears an interpolation upon the original work, and to be taken from an incorrect edition of our author ; for the case from Perkins is rightly cited only a few lines before, and one writer could hardly cite one case two ways, or, in- deed, repeat it at all in *o 3hort a space. g6 55 EXCHANGES. 277. But if J. S. and T. K. are enfeoffed of one acre of land, to have and to hold to them, and the heirs of T. K. ; and C. D. gives to tlvem [Post.s. another acre of land, to [hold to] them in fee, u8i.] j n exchange for the said acre of which they are enfeoffed as aforesaid. It is said, that this is no good exchange but for the moiety which apper- tains to T. K. because that he hath a fee in the moiety of the acre whereof he was enfeoffed, executed to such intent, viz* to put and vest the same in another person by alienation, that is to say, by feoffment, exchange, tyc. and as to the moiety which appertains to J. S. the exchange is not good, because he departs but with the free- hold, fyc* and he is to take a fee-simple in the other land, fyc. But against that it may be said, that the exchange is good for all ; because the fee-simple of the whole acre of which J. S. and T. K. were enfeoffed was in T. K. §c. and then when J. S. and T- K. join in the exchange of the * [56] same * acre, the freehold of the whole acre with the fee-simple shall pass, tSc. to C. D. so that he hath a fee-simple executed in the same acre, and J. S. and J*. A', have a like estate executed in the acre of land, which C. D. gave to them in ex- change, as they had in the other land ; and so the estates of the parties to the exchange are equal, S>c. Ideo qucere de hoc (g). (g) This case is quoted, but apparently mis-stated, in Shep. T. 292 ; and therefore no opinion is there given upon it. Notwithstanding the reasons urged in support of the exchange, the Editor cannot help thinking it altogether void, as suggested in the next section ; for it seerns impossible to fay that J. S. and T. K. have a like estate ia the land givea EXCHANGES. 5(3 278. And also it may be said, in the same case that the exchange is void in all ; for it is argued 13 Ed. 4, 3, before, that the exchange is void for the moiety j- " sf j ! " to the said J. S. Spe. and when an exchange is void in part, it is void in all, Sfc. As to that it may be said, that that reason is to take effect, where the exchange is made of an entire thing, Sec. 279. If a man seised of lands in fee, in the 9 Ed. 4, 23, right of his wife, give them in exchange for other P\, , '"' ~ a ° D 2 Ld. -2, Cm- lands in fee, Sec. this exchange is good and effec- !n vita, 17. tual until it be defeated by the wife or her heir, Sec. 8 E ' ! - 2 '.^' u So shall it be if the husband and wife have joined in the exchange, Sec. And if lessee for years of land, and his lessor, join in exchange in fee of the lands leased, to a stranger for other lands in fee to each party, it seems to some this exchange is void to the lessee, and good for the whole land to the lessor (h) ; for the lessee for years may to iheni in exchange, as they iiad in the other land, without denying ail operation to the habendum to them jointly in fee ; and if this be admitted to operate, the objection that J. S. takes an estate of inheritance, in exchange tor an estate f.>r life, is insurmountable. (h) The law is so stated in Shep. T. 291 ; but also with a (pHtrt as to the conclusion : it, however, appears impossible to arrive at any other, for the whole fee and freehold passes out of the lessor, and the exchange would be good without the concurrence of the lessee ; and, therefore, if he took any thing, it must be in exchange for his term; and by such means he could not take a freehold, for then that equality which is essential to an exchange would, be wanting: con- sequently, if the land were given in exchange to him and his lessor as joint-tenants, the whole would vest in the latter, from the incapacity of his companion to take: but if the grant were made to tbem as tenants in common, or severalty, as the words in the text (to each party) seem to imply, it seems equally clear that the grant of part to the lessee would be merely void, and could not enure to the benefit of the lessor. 56 EXCHANGES, surrender his land to his lessor out of the land and by naked words ; then when the parties, viz. the lessor and the lessee join in an exchange in fee, it shall be said the surrender of the lessee to his lessor, as well as if lessee for years of land and his lessor join in a feoffment to a stranger of the land leased, fyc. and so, fyc. tamen quaere certitu- dinem, fyc. 280. If disseisor and disseisee be of one acre of land, and they join in an exchange in fee of the same to a stranger, for another acre of land in fee, and the exchange is made out of the land, this exchange is void as to the disseisee, and good to the disseisor for the whole land ; for the dis- seisee at the time of the exchange had nothing in the land but a right, which he could not give or grant to a stranger ; but he could vest it in the person of the tenant of the freehold of the land by divers ways, by extinguishment, fyc. And at the time of the exchange, he to whom the exchange was made, had nothing in the same land, Sec. 281. If there be two jointenants in fee of one c acre of land, and they exchange the same in fee with a stranger for another acre of land, to have and to hold, one moiety of the same acre to one jointenant in fee, and the other moiety to the other jointenant in fee, Sfc. this is a good ex- change. So shall it be, if two tenants in com- mon of land join in an exchange with a stranger for another acre, to have and to hold to them h jointly, fyc. 282. And if the disseisor of one acre of land enfeoff a stranger of the same, and the feoffee EXCHANGES. 56 gives to the dfsseisee another acre of land in fee, in exchange for a release of all his right in the acre of land whereof he was disseised, Sfc. this [ s . 271. is a good exchange ; for although the heirs of onte the feoffee are not expressed, * in the exchange, * [57] the right of the disseisee is extinguished in the feoffee by force of the release, according to his possession at the time of the release made to him, and which was in fee, and so the exchange is good. 283. But if lord and tenant be by fealty and twelve pence, of one acre of land, and the te- nant grants another acre of land to the lord in tail, in exchange for a release of all his right in the tenancy, Sf-c. this is not a good exchange ; because by the release, the fee-simple of the lord is determined ; and the lord shall have but an estate tail in the land given to him in exchange, for the release of all his right, $$c. So shall it be of all like cases, fyc. 284. Now is to be shewn in what time the estates exchanged ought to be executed. And as to that know, the estates exchanged ought to be executed in the lives of the exchangers, other- wise their heirs shall avoid them, except in special cases. 285. And therefore, if an exchange of lands he made between two, and one enters according to the exchange, and the other exchanger dies before M. 9 Ed. 4, any entry made by him, now he who entered shall *!• not be the first person who shall defeat this ex- Exchange, change. But if the heir of the exchanger who 10 - did not enter, enters into the land into which the / 57 EXCHANGE?. other hath entered by force of the exchange, and ousts him as he may ; then he, viz. he who i* ousted, may enter into the land which he gave in exchange. 286. But it is to be known, that at all times during the lives of all the parties to the exchang i , each of them may enter according to the ex- change, at whatever time he pleases, if the pos- session be not devested out of them, or of any of them, by an elder title, fyc. as by an entry for a condition broken, or by an entry by the disseisee or his heirs, (if those who made the exchange had, or any of them had, the land so given in exchange by disseisin ; fyc.) or by recovery upon an elder title, Sfc. or by alienation in mortmain, made be- fore the exchange made ; or by any other lawful cause, Sfc. 287. And some have said, that in some cases the party to the exchange shall not enter, if the possession of the land [exchanged by him] be devested out of the other party, although it be not so devested by an elder title. As for exam- ple : an exchange is made of land in fee between an abbot and a layman, and the abbot enters into the land of the layman, by force of the exchange, but the layman does not enter into the land given in exchange by the abbot ; and the lord of whom the land into which the abbot hath so entered is holden, enters into the same land within the yea* and the day after the exchange, as into land aliened in mortmain : in this case they say, the abbot shall retain the land which he gave in exchange in his own possession ; and the other EXCHANGES. party * shall not have his own land again which * [f g' he himself gave in exchange to the abbot ; be- cause the possession thereof was out of him and in the person of the abbot by his own act ; and the abbot cannot retain it in his possession against the lord of whom it was holden, §c. But against that it may be said, that forasmuch as the abbot executed the exchange, he shall for no cause dis- agree to it, 8fC. except in very special cases. And every exchange is conditional, fyc. Idea quv 34 Edw. 1. st. 3. and 7 6c 8 Wni. 3. c. 37. is still in force: but modern charters of incorporation generally contain a power for the corporation to purchase and alien lands and hereditaments. As to exchanges of lands and hereditaments vested in corporations in trust for charitable purposes, J *c 2 Geo. 4. c. 92 58 EXCHANGES, which lie is inducted, fye. for the exchange is not perfected, because it is not executed, fyc. 55 Ed. 4,3. 289. And if the reversion of one acre of land r ' , J * 2 ' be exchanged for another acre. 8rc. and the ex- &*cnange, ° ia. changee of the reversion die before attornment H. ioEd.2, mac j e to Yi\ m his ] ie j r ma y enter upon the other Lxchange, J * j 3. exchangee, and put him out of the land given in exchange by his father, fyc. 290. But if a man be seised of lands in fee in right of his wife, and he and his wife exchange M. 16 Ed. 4, those lands for other lands in fee, and the ex- M. q Ed 4 enan g e is executed, fyc. and the husband dies, 52. and the wife enters into the lands taken in exchange, now she shall not defeat the exchange, SfC. 291. But in the same case, if the husband alone made the exchange, the wife may defeat it, notwithstanding her entry into the same lands after the death of her husband ; for then by her entry she is not seised of the lands by force of the exchange, because she was not part}' to it, and she cannot be privy to it, Src. 292. If an exchange of lands be had between two men, and before their entry by force of the exchange they are disseised of the land put in exchange, and the disseisor dies thereof seised, and the parties to the exchange enter into the lands put in exchange according to the exchange, and put out the heir of the disseisor ; this entry cannot be said an execution of the exchange, because their entries were tolled by the descent, $c. But if the disseisees had recovered the same lands against the heir of the disseisor by EXCHANGES. 5S several writs of entry en le per, fyc. and had had them in execution, then they might have entered according to the exchange, and this entry had been a good execution of the exchange, Sfc. 293. And if a man be seised of land in fee in the right of his wife, and thereof enfeoffs a stranger, and takes back an estate to him and his wife and a third person in fee ; and they three join in an exchange of the same lands in fee, for other lands to a stranger in fee, and the exchange be executed, and the husband dies, and the wife occupies the land taken in * exchange with the * [50 1 third person, by this occupation of the land she shall be excluded from having any part of the other land which was given in exchange for this, SfC. 294. And if tenant in tail of one acre of land T.gEd.^j, exchange the same for another acre with a ""V*' stranger in fee, and the exchange is executed, and the tenant in tail dies, and his issue enters into the land taken in exchange by his father, [Etvidt now he hath perfected the exchange during his ^' tte '' eli v - life, SfC. 4 Taunt. 8a6. Tokon v. A'aiyf, 3 Br. & B. '217.] 295. And if an infant exchange land, fye. and P. Gemen. occupy the land taken in exchange when he i? amc - >eiir ' IO 22 comes to his full age, the exchange is executed, M. 4 Ed.i. $c. And it hath been said, that if a man be Elch <' : >^^'- seised of a manor, viz. of one moiety in tail, and \,EidantX of the other moiety in fee, and gives this manor in exchange for another manor in fee, and the exchange is executed, and the tenant in tail dies, and the issue in tail (disagreeing to the exchange) enters into the whole manor put in exchange by his father, the exchange is avoided in the whole ; because the exchange was made of one entire 59 EXCHANGES, thing for another entire thing ; tamen qucere (lc)< For in the same case, if the exchangee had been impleaded of parcel of the same manor, whereof o one moiety was in tail, Sfc. and had vouched ; and the vouchee had entered into the warranty, and lost, Sj-c. he should not recover in value but for the portion which was lost, Sec. M. 1 3 Ed.4, 296. And if a man be seised of two acres in fee tail, and of another acre in fee, and exchange these three acres with a stranger for another acre in fee, k and the exchange is executed ; and the tenant in tail dies, and the issue in tail (disagreeing to the exchange) enters into all the three acres put in exchange by his father, his entry is lawful in all the tailed land, and for that land the exchange is avoided, c]-c. But into the third acre of which his father was seised in fee his entry is not lawful, and for this acre the exchange shall stand : So the ex- f change is avoided in part, and shall stand in part, Sjc. Quaere, If the other exchanger can enter into any parcel of the land by him put in exchange, because there is no cave of the value, $)C. (I). (k) This is quite clear, (Shep. T. 298), and not at all impugned by the principle upon which the qiu&re is founded ; for in every exchange is implied a condition and also a war- ranty ; the first to give re-entry, and the latter voucher and recoinpence. The condition is entire, and broken upon the eviction of any part of that which is given in exchange ; and therefore entry is given into the whole ; but the warranty may severally extend to part. Vide Bustard's case, 4 Rep. 1-21. Either remedy may be resorted to; but the election of one appears a waiver of the other. (/) From what is said in the last note, it is evident that the exchange is voidable by the stranger for the condition broken ; and he ruay, if he will, re-enter into the land given in exchange by him : but clearly not into any parcel by way of recoinpence, for he can recover this only by action. EXCHANGES. 59 297. And if /. S. be seised of white acre in fee, and exchanges the same and black acre wherein he hath nothing, with a stranger for another acre in fee, Sf-c. the exchange is void as to black acre (771): But notwithstanding it is said that J. S. shall have the whole land which was put in exchange by the stranger ; for they say, there is no care of the value of the land, §c. quod rcrum est, SfC. tamen qucere (>h) ; for it seems it is not within the same reason, fyc. 298. And if a man of unsound memory being T. 16 Ed. 3, seised of land in fee, exchanges the same with a ^ xchan S e >' i - stranger for other land in fee, and the exchange is executed, and he of unsound memory dies, and his heir enters into the land taken in exchange by his father, now he shall not avoid this ex- change (?*), Sfc. 299. And in a special case, an exchange may be executed in the parties to the exchange,* and * [60] avoided by the same parties. As put the case: 9 Ed -4> 2 3- a man grants to me common for six oxen in his meadow, fyc. in exchange for a way over my land to carry the hay growing upon the same land to his house in Dale, and I grant the same way to him in exchange for the common, fyc. (and the exchange ought to be by deed indented, fyc.) and I use the common by force of the exchange, and (T.) 15 Ed. 4,3- (m) It is laid down in Shep. T. 298. that this exchange is good until the stranger is evicted from Mack acre. The last note seems to reply also to the qucere at the end of this section. (n) 'Die law is now otherwise ; for the exchange would he absolutely void, and therefore incapable of confirmation by the heir. Vide s. 31. and n. (/) aule, and s. 614. post, and note. 00 EXCHANGES, the other party to the exchange uses his way ac- cording to the exchange ; and afterwards he will not suffer me to use my common ; then I may prevent him from using his way ; and the reason is, because they are yearly executory, Sec. The same reason may be made, if a rent be exchanged for a rent, Sec. Jdeo qucere (n). (n) S. C. Shep. T. 298. and there also queried ; but the law seems to be as stated in the text ; for if A. grant a way over his land to B. and B. pro chimino itlo habendn, grants to A. a rentcharge, the stopping the way is a stopping of the rentcharge. Dyer, 76. a. pi. 30. Mich. 6 Edw. 6. (cites the cases noticed by Perkins in the margin) and Dav. 1. b. S. P. Et vide 10 Rep. 42. a. In order to avoid the necessity of actual entry, exchanges of freehold estates are now usually made " by a bargain and sale for a year, and a release grounded upon it." " Where exchanges are effected by the means of powers operating under the statute of uses, there can be no implied right of entry on eviction, as on an exchange at common law ; because the right of entry must be descendible to the heir, and not be transmitted from cestui que jise to cestui que ttse in succession." 2 Sand, on Uses, p. 70. (4th ed.) And this observation must also be applicable to a case where A. having a general power of appointment, appoints land to B. and his heirs, in exchange for land granted by B. to A. and his heirs; for the right of entry, it is apprehended, must be mutual: but here, although a right of entry (if it existed) might descend from A. to his heirs, yet there could not be any such right in B. as he would come in under the party who gave the power of appointment, and not under A. who exercised it. On the subject of exchanges made by instruments taking effect under the statute of uses, see further, 1 Sand, on Uses, 2 ib. 69-70; Sugd. Gilb. on Uses, 179. DOWER. 60 CHAPTER V. Of Dotver. [Viner's Abridgment. Bacon's Abridgment. Comyns's Digest, and Cruise's Digest, same title. I Roper's Hus- band and Wife, chap. Dower. Park's Law of Dower.] 300. NOW are we to speak of dower (a). And as my master Littleton hath well shewn in his (a) " Dower is an estate for life, which the law gives the widow in the third part of the lands and tenements [or here- ditaments] of which the husband was solely seised, at any time during the coverture, of an estate in fee, or in tail, in posses- sion, and to which estate in the lands and tenements [or hereditaments] the issue of such widow might, by possibility, have inherited." Watk. Princ. Convey, chap. Dower. This is perhaps the best legal definition extant. A woman is dowable of an estate tail determined by fail- ure of issue : So of a tenancy in fee-simple after it has escheated from any cause : and of an estate in fee deter- mined by executory devise ; although this has been objected to as against principle ; but it is apprehended it must now be considered as settled. Vide Buckuorth v. Thirkell, But!. Co. Litt. 241. a. n. 4; Goodcnmigh v. Goodenough, 3 Prest. Abstr 372 ; and Moody v. King, 2 Bing. 447. But she is not dowable of an estate in fail or fee- simple forfeited by attainder of high or petit treason, 5 & 6 Edw. 6. c. 11. s. 13 ; or even of an estate aliened by her husband previous to his attainder. Co. Litt. 41. a; Dyer, 140. b. pi. 42. This interest theoretically the favourite both of law and equity, is practically an object of dislike to both ; and in modern practice is regarded only as an incumbrance upon a title ; consequently it is seldom permitted to attach where it can be prevented. On the different modes of preventing Dower, lide Watk. Princ. Convey, by Preston, chap, on Dower; Butl. Fearne Cont. Rem. 3*47. U.J Sugd. Gilb. on Uses, 321. n. ; and the late case, Ray v. Pung, 5 Madd. 31055 Barn. & Aid. 568. As to barring dower by a jointure, (at law and in equity) 4K) -DOWER, first book, there are five manner of dowers, which appear in his chapter of Dowers ; and many and divers good cases concerning dower, are there put by my said Lord Littleton. And also there are so many good and necessary cases concerning dower put upon the writs of dower, in Naiura Brevium, with the additions, that a man can hardly speak any thing concerning dower beyond what is shewn and said in the said books. But yet, by the grace of God, something shall be shewn here concerning dower, Sfc. 301. And as to dower at the common law; know, where husband and wife are, and the hus- band is seised of such an estate during the mar- riage, as the issue which by possibility they may have between them during the marriage, by pos- sibility may inherit by the common law ; the wife shall be endowed, if the estate and possession of the husband be not lawfully avoided, fyc. except in special cases, Sfc. M.4iEd. 3, 302. And therefore, if tenant in general tail Dower, 39. t a k e a w jf Cj anc | enfeoff a stranger, and take back an estate to him and his wife in special tail, and the wife dies, and he takes another wife, and hath vide H. & Butl. Co. Lilt. 36. b. ; and Notes Sugd. Gilb. on Uses, 321. &c; Sugd. Vend. & P. 321 ; or by an attendant terra, vide Butl. Co. Litt. 208. a. n. 1 ; Sugd. Vend. & P. 315; Prest. Watk. Princ. Convey, chap, on Dower. The recent case of Mole v. Smith, 1 Jac. & W. 655. (the final determination of which is not yet reported), is said to have determined, that a purchaser is compellable to accept aji assignment of an attendant term as a bar to the dower of a vendor's wife; but this is by no means generally ac- quiesced in. DOWER. (JO issue and dies, the second wife shall not be en- dowed ; yet the issue is remitted to the general tail: but the second wife shall not have dower thereof, because her husband was not seised of such an estate Sfc. during the marriage between them two, Sec. 303. But if lord and a woman tenant be of one acre of land by fealty and twelve pence rent, and they intermarry, and the husband dies, the wife shall be endowed of the third part of the P. 1 Ed. 3, rent by way of retainer; and yet the husband was Dower, 70. not seised thereof in deed during the marriage ; for by the marriage the seignory was in suspence, and so continued during the marriage. But not- withstanding the husband was tenant * of it during * [Ci ] the marriage as to using an action, so that it was tantamount to a possession in law, Sec. 304. And of seisin and possession in lata the Litt. ch. wife shall be endowed, Sec. And if a man seised Kcteasej, . I s - 448.] of land, tenement or rent ore. in fee, take a wife, [Vaughanv. and during the same marriage he takes another Atkins, 5 13urr. 2704, wife, and afterwards dies, leaving both wives, the as to Copy? latter wife shall not have dower ; because her holds marriage was void, Src. 305. And if a woman take a husband, and in T. 39 Ed. 3, his lifetime she takes another husband, who is c£°ji t f ' seised of land in fee, and the second husband 33- «• dies, she shall not have dower of his land ; causa patet. But if Alice at Stile make a pre-contract of matrimony with C. D., and before the marriage solemnised between them, she intermarries with J. K. who is seised of land in fee, Sec. and J. K. dies, she shall have dower as wife of /. A', if the 11 61 DOWER, marriage be not avoided ; for it was but void- able (b). 306. And if a man seised of land in fee, make a pre-contract of matrimony with /. S. and die M. 10 Hen. before the marriage solemnised, she shall not » 200. ' have dower ; for she never was his wife. And it was holden, in the time of King Henry the Third, that if a wife had been married in a chamber she should not have dower by the common law ; but the law is contrary at this day. Co.Litt. 33. 307. And if a man seised of land in fee, fyc. jtf.32Ed.Ji, ta ^ e a wn ° e > an d enter into religion, and be pro- JJower, 177. fessed, his heir shall inherit presently; yet his 332. n. a. in w ^ e sna ^ not have dower during the natural life e Manh v. of her husband ; for the husband cannot be pro- im < ' fessed in religion during the marriage without the assent and agreement of his wife; and if he be so without her assent, the profession is void, §c. Co. Litt. 308. And if tenant in tail-general take a wife, stf Fri 6 ant ^ nave issue by her, and be attainted of felonyj f c. 12. s. 17. and die, his wife shall not be endowed ; and yet t ol^f ^ his issue shall inherit; but not by the common & 6 Ed. 0. J c u.s. 13.] law, but by force of the statute of Westminster 2. cap. 1. Sj-c. 309. And if father and son be, and the father is seised in fee of one acre of land, and exchanges (b) By statute 32 Hen. 8. c. 38. all impediments to sub- sequent marriage, arising from precontracts to other persons not consummated with hodiiy knowledge, were abolished; so that such marriages were no longer voidable. But this provision of that statute was repealed by 2 & 3 Edw. 6. c. 23. As to the possible operation of the old marriage act (26 Geo. 2. c. 33.) upon this, tide 1 Bl. Comm. 435. and the existing marriage act, 4 Geo. 4. c. 76. is similar in this re- spect. DOWER. 61 the same with a stranger for another acre in fee, and the exchange is executed, and the father dies ; and the son takes a wife and enters into the M. 4 Ed. 2, acre taken in exchange by his father, and the party .."''p', 1 * vJ ' to the exchange who survives is impleaded of the Bower, lag. acre taken in exchange by him, fyc. and vouches to warranty the son, who enters into the warranty and loses, Sfc. and the demandant hath execution against the tenant, and the tenant over in value against the vouchee, of the acre which the tenant gave in exchange to the father of the vouchee, Sfc. and the vouchee dies, his wife shall not have dower of this acre put in execution ; because the recovery in value shall have relation to the time of the exchange made, which was before her title to have dower, and so the possession of the husband is avoided by a title [existing] before * the marriage, fyc. * [C2] ■ 310. And if two men be coparceners in fee of land in gavelkind, and make partition, and one of them takes a wife, and the other is impleaded of his part &>c. and prays aid of his coparcener, Sfc. who joins to him in aid, Sfc. and the de- mandant recovers, Sfc. and the tenant hath pro rata, of that which remains in the possession of his coparcener; and the coparcener of whom the aid was taken dies, his wife shall not have dower of that which the other coparcener had pro rata ; because the title of the coparcener who had pro rata, shall have relation to the time of the death of their ancestor, fyc. 311. And if a man by deed indented enfeoff another of land, upon condition to be performed on the part of the feoffor, and the feoffee takes h 2 02 DOWER. a wife, and the feoffor performs the condition and enters, Sfc. and the feoffee dies, his wife shall not have dower of this land, fyc. c 312. And if I enfeoff a man of land, upon condition that he shall enfeoff J. S. of the same land before the feast of Easter next ensuing, and the feoffee takes a wife, Sj-c. not tendering any feoffment to J. S. before the same feast, and I enter, fyc. and the feoffee dies, his wife shall not have dower against me ; because my entry d shall relate to the time of the feoffment, Sfc. [Co. Litt. 313- But if lord and villain be, and the villain 31. a.] takes a wife, and purchases land in fee, and pre- T. lq Ed. 2. , . , i • 1 -n • Dower 171. sently after the possession executed in the villain by force of the purchase the lord enters, and the villain dies, his wife shall have dower against the e lord ; because his title begins but by his entry, and the title of the wife to have dower was before that, Sfc. 314. But if lord and neif in gross be, and they intermarry, and the lord is seised of land in fee, and dies', now she shall not have dower against the heir of the lord, because she is his neif (c). f But if the lord had enfeoffed a stranger of the same land, she should have had dower against the feoffee, because she is not his neif: but otherwise is it if she had been a neif regardant to the land of which the feoffment was made, Sfc. Co. Liu. 31. 315. And it hath been holden in divers books, a. [& n. 6.] (c) This, when villeinage existed, was a very doubtful point: Lord Coke says, (1 Inst. 137. b.), if the lord him- self marry his nief, she is enfranchised for ever; but in another passage (lb. 136. b.) he treats it as doubtful. The first seems the more reasonable opinion. Vide Mr. Har- grave's note 3. Co. Litt 103. a. and his citations. DOWER. 62 as in three or four, that if there be grandfather, father and son, and the grandfather is seised of one acre of land in fee, and takes a wife, and T. 19 Ed. -±, the father takes a wife, and the grandfather dies, % 0Ker ^° o ' and the father enters and dies seised ; and the son Dower, 49. enters and endows his grandmother, and the T- 22 Ed. 3, D Dower, 1 go. grandmother dies, the wife of the father shall not M.23ECI.3, be endowed of the land whereof this grandmother Dower, 103. fo T, 19 Ed. 2, was endowed (d) ; because a woman shall not be Dower, 16b'. endowed of a reversion expectant upon a free- **• 9 Ed. 3. hold ; and the possession of the freehold by the 10 q ' endowment is vested in the grandmother, by a title prior to the title of the father to the free- hold : But if the grandfather had enfeoffed the father of the same land during the marriage be- tween the father and his wife, in that case, after the death of the grandmother, the wife of the father should have had dower of the land of which the grandmother was endowed ; because * the possession of the father, which gave title to * [63] his wife to have dower, was in the life of the grandfather, when the grandmother could not demand dower ; so that by the endowment of the grandmother the possession of the father is not avoided ; for she had right to the possession only from the time of the death of the grandfather, fyc. 31G. And if there be grandfather, father and son, and the grandfather be seised of land in fee, Co. Litt. and take a wife, and the father takes a wife, and 3 ' • a - & "• the grandfather dies, and the father enters and Descents, 76, &c] (d) And this appears to be the law. Vide H. & B. Co. Litt. 31. a. where this case is more fully put ; and Sir M. ■Hale's notes (5. G.) there. H 3 63 DOWEtt. dies, and the son enters and endows his mother, against whom the grandmother brings a writ of dower, and recovers, and hath execution, and the grandmother dies, in this case, the mother may enter into the land recovered by the grandmother against her, and retain it against the son, be- cause she was endowed thereof by him : And so shall it be if his mother had recovered against him in a writ of dower, fyc. M. 44 Ed. 3, on. And if a man be seised of land in fee, lb. 28. ° '. ... and give the same to a stranger m tail, reserving to him and his heirs twelve pence rent ; and for default of payment, a re-entry, fyc. And the donor takes a wife and dies, and his heir enters into the land for the condition broken, the wife of E. Nat. Br. the donor shall not be endowed of the rent, nor M%6 Ed.o, °f the land, Sfc. And the wife of the donee shall 21 - not be endowed; and yet if a donee of land in tail general - take a wife, and dies without issue, and the donor enters, the wife of the donee shall have dower ; and yet the estate tail which made her title is determined, Sf-c. 318. And sometimes the wife may choose to be endowed of one land or of other land ; fyc. or of a seignory, or a tenancy ; 8$c. or of land or a rent charge, or rent seek issuing thereout, §c. but in such cases she shall not have dower of both, except in special cases, 8$c. Co. Litt. 319. And therefore, if a man seised of one acre 3? • b - , of land in fee, take a wife and exchange the same J. 14 Ed. 3, /., Bower, 88. acre with a stranger, for another acre of land in M. i3Ed.3, f ee an( j the exchange is executed, and the hus- Douer, 93. b . .„ T. 10 Ed. 3, band dies, now it is at the election of the wife to Dower, 125, DOWER. 63 have dower of the acre which her husband put in exchange, or of the acre which he took in ex- change ; but she shall not have dower of both acres. 320. And if there be lord and tenant by fealty and twelve pence rent, and the lord" takes a wife, M.-i^Ed.s, and purchases the tenancy in fee, and dies ; in this T^T' ' 3 °" case it shall be at the election of his wife to be endowed of the seignory, or the tenancy, fyc. So shall it be if a man seised of a rent-charge in fee take a wife, and purchase in fee the land whereout the rent is issuing, and dies, it shall be at the elec- tion of his wife to be endowed of the land, or the rent, 8^c. 321. But if there be lord and tenant by fealty and two pence rent, and the lord takes a wife, and the tenancy escheats to the lord, and he enters and dies ; in this case, it shall not be at the election of the wife to have dower of the seignory or of the tenancy ; but she shall be forced to take her dower of the tenancy : and the reason is, because *the seignory is determined during the coverture, * [64.I by the act of law ; and it is no disadvantage to the wife to be endowed of the tenancy Sfc. ; for if she be put out of her possession of part thereof by a more ancient title, the seignory shall be revived for so much, 8fc ; and if all the tenancy be recovered by a more ancient title, fyc then the whole seignory shall be revived, 8fc. and then she may have her dower of the seignory, fyc 322. If there be lord, mesne, and tenant by H. 22 Ed. 3, fealty and twelve pence rent, and the mesne takes D <«« r >»3>- a wife, and releases all his right to the tenant, and h 4 64 DOWER, dies, his wife shall be endowed of the mesnalty ; 80 shall it be in such case if the tenant forejudge the mesne, SfC. And if the disseisor of land enfeoff a stranger of the same with warranty, and the feoffee takes a wife, and the disseisee brings a writ of entry en le per, against the feoffee, and he vouches to warranty his feoffor, fyc. and each re- covers against the other, SfC. and hath execution ; and the feoffee dies, his wife shall have dower of the land which her husband recovered in value, and not of the land which he lost, SfC. ; causa patet. 323. If there be lord and tenant by fealty and P. 33 Ed- 3- twelve pence rent, and the lord takes a wife and rKtafNJB t ^ es ' ant * ^ s w ^ e * s en dowed of the third part of 144. M. Et the rent, and the tenant dies without heir, so that vu e ark t j ie tenancv escheats ; in this case the wife shall on IJouer, J 348 ] not be endowed of the tenancy, notwithstanding it comes in lieu of the seignory, because it was not in the possession and seisin of her husband fyc. ; But she shall retain the rent which was assigned to her in dower, as a rent-seek distrainable of common right, fyc. 324. And some persons hold opinion that, in a special case, a wife shall be endowed of land, and also of a rent issuing out of the same land : And therefore they say, that if a man be seised of four acres of land in fee, and take a wife, and en- feoff a stranger thereof by deed indented, rendering unto him and his heirs three shillings rent, with a clause of distress, and die; and the feoffee endows the wife of the feoffor of the third part of the land, the land which is assigned to her in dower is dia- DOWER. 64 charged of this rent, and the whole rent is issuing out of the residue of the land : [ And she shall be endoxved of 'this rent also :] And? the reason is, be- cause the wife shall he endowed of the best pos- session which her husband had during the cover- « ture ; and the husband was seised of this land during the coverture discharged of the rent ; and so, Sfc. And this rent is a rent-charge, and doth not come in lieu of the land : and the husband had an estate in fee in the rent during the cover" ture, Sec. (e). 325. If a man be seised of three acres of land in fee, and take a wife and die ; and a stranger abates in one of the acres, and is seised in fee of two other acres, and marries the same woman, and en- feoffs a stranger by deed indented of the three H acres, yielding to him and his heirs three shillings rent with a clause of distress, and dies, now all the (e) The words between the brackets in this section are not in the text of any copy of the work which the Editor has seen, but appear wanting to complete the sense of the section ; and the position is taken to be law. With regard to the wife's right to dower in the land discharged of the rent, there can be no difference of opinion ; and as the rentcharge must be con- strued to be granted by the feoffee, it is a new purchase by the husband, (Co. Litt. 12. b.) of which lie was seised ill fee, and of which, prima facie, the wife is therefore dowable : and the consideration for the rent, or the land upon which it is charged, could not be regarded by the law ; or if it were, would not vary the construction. This case is clearly diffe- rent from that cited 1 Inst. 150. a. and put by Hale in his note to Co. Litt. 12. b. where the wife was entitled to an estate for life in the whole rent by purchase. And see note to sec. 326. post. The case of dower on an exchange, it will be recollected, is an exception not a rule. Mr. Roper (Hus- band and Wife, 1.345) says, the wife shall elect between the land and the rent, and cites this sec. as his authority : it does not appear to support him. The point is noticed, and some references upon it given in Fitz. Abr. tit. Dower, pi. 63. H K 64 DOVTEIi. three acres are charged with the rent. But yet if the heir of him after whose death the abatement * [£>5] * w ^s made, recover the acre of land in which it was made, and assign that acre to the wife for her dower ; yet she may have dower of the rent ; for this acre is as if it had never been charged, and the whole rent is issuing out of the other two acres, fyc. 326. And if a man seised of three acres take a wife, and enfeoff a stranger by deed indented of P. 5 Ed. 1, two of the three acres, rendering two shillings Vower, 143. rent tQ j^ an j j^g hgjj^ ^vith a clause of distress, and the wife is endowed of the third acre, which remains, in allowance of the other acres ; yet they say, that she shall have dower of the rent which is issuing out of the other two acres ; tamen qucere. For it is against the opinion of divers men, and against conscience, fyc. (f). (/) This case depends upon the same principle as those put in the preceding sections ; but as the question here lies only between the wife and the heir, it appears still stronger in her favour. It is amusing to hear an old common lawyer object to a consequence of legal principles as against con- science : but? this objection seem.s groundless ; for supposing the estate sold, and the vendor to die intestate, or to pur- chase another estate with the produce, would any one object to the widow insisting on her dower out of the original estate, and taking her share of the purchase-money as personalty, (see Bac. Abr. Dower, K. (by the custom) vol. 6. 399. Gwill. ed.) or her dower in the second estate also, as against conscience ? And yet, setting aside technical principles, what distinction is there between these cases and those put in the text? But the cases put must be distinguished from those of rents strictly and properly reserved rents, as upon a gift in tail, and rents limited by way of use, as on a con- veyance of the estate by the husband to the use that himself and his heirs may receive an annual rent thereout for ever, and subject thereto to A. in fee ; for in either of these cases DOWER. 65 327. And if a man grant to me a rent-charge [1 Rep. 87. •a. in Co case.] in fee by deed indented, upon condition that if a,1E I die my heir within age the rent shall cease during his non-age, and I take a wife and die, my heir being within age, my wife shall not be endowed of this rent during the non-age of my heir, because it is a condition in deed which was annexed to the estate, (in which the wife claims [1 Prest. dower,) at its beginning, Sfc. 246-V/ 328. And if a man be seised of land in fee, and ]yj 17 Hen. take a wife, and enfeoff a stranger of the land, 3> Homer, and the feoffee builds thereupon a castle or 19 * mansion house, or other buildings, or otherwise improves it, so that it is worth more by the year than when it was in the possession of the husband ; the wife shall not have her dower but according [Butl. Co. to the value it was of in the time of her husband. Lltt- * 3'2. a.] And yet if a disseisor build upon land which he hath by disseisin, and the disseisee enters he shall have the building, S)-c. And so shall it be if a feoffor, upon condition, enter for the condition broken, SfC. the cause of the difference is apparent. 329. But if a man be seised of land in fee upon which there is a building, so that by reason thereof H. 14 Hen. the land is worth four pence more by the year, *' and he takes a wife, and enfeoffs a stranger, who takes down the building, and the feoffor dies, his wife shall have dower according to the value of the land as it was at the time of the death of her it is conceived the rent would be apportioned in favour of the tenant, since in the first, it comes in lieu of the land ; and in the latter, is in fact a part of the husband's old use, or of that estate of which the wife is endowed, and consequently she could not be endowed of the rent. II 6 65 DOWER, husband ; and hath not any remedy for the taking away of the building before the death of her hus- band, although the building was upon the same land and in the possession of her husband during the coverture ; for a wife hath not right to have possession of her dower before the death of her husband ; tamen qucere of this case (g). 330. And if a man be seised of three manors M.a6Ed.3.in fee, and take a wife, and grant a rent-charge T T7 Ed q i ssmn g out °f a h" the three manors, and die ; and Vowcr, 164. the wife takes one manor, by assignment of the Lit" 02 b heir, for her dower, in allowance of all the three & n. 2.] manors, now two parts of this manor remain charged with the distress of the grantee, although the grant of the rent-charge was made during the marriage : and the reason is, because as to the two parts she has taken her dower against common * [66'] right ; for according to common right * she ii ^° sTw ou §ht to have the third part of every manor foT 090.] her dower : but in the same case, if she had re- covered her dower, and such assignment had been made to her by the sheriff, she should have holden the same discharged ; causa patet. (g) An authority upon this point has been sought in vain ; and Bacon's Abridgment, Dower, B. 5. appears to be the only book in which it is at all noticed ; but the law seems to be as stated in the text ; for it is clear that if the build- ings had been pulled down by the husband, the wife could have claimed nothing in respect of them ; and this privilege, it is apprehended, must be transferred with the estate. And there is no right without a remedy ; but, as stated, the wife has no means of recovering the value of the buildings-against the feoffee, therefore she has no right. The right to dower, too, as implied in the text, is inchoate only during the hus- band's life, and not consummate till his death, when (in the case put) the buildings were not in existence. DOWER. 66 331. But if a man be seised of three ad vow- sons of three several churches, and take a wife, and grant to a stranger that he shall present to i the next avoidance of such one of the three churches as shall first become void, and the grantor dies, and his wife brings a writ of dower against the heir, before any church becomes void, and recovers ; and the sheriff assigns to her the ad- i vowson of one church for her dower, in allow- ance of the other churches ; which advowson assigned to her is the first which becomes void after the grant made by the husband, and the same avoidance happens after the assignment of the dower : it seems to some in this case, that the wife shall not have this avoidance, but the •> grantee shall have the same ; because she is en- dowed against common right ; for of common right she ought to have but the third avoidance of eaeh advowson of each church. 332. And although the assignment be made by the sheriff, it shall not prejudice or oust the grantee of his right, because he is a stranger to the assignment ; and also he cannot otherwise take advantage of his grant, but only at this avoidance ; tamen qncere (h). But otherwise e is it in the case of a grant of a rent-charge out of three manors ; for when the assignment is made by the sheriff of one entire manor, in allow- (h) Notwithstanding this quote, the case cited by Lord Hale, Bull. Co. Litt. 32. b. n. 2. and those in Com. Dig. Pleader, 2 Y. 19; Viner's Abr. Doner, X. Y. Z„ and ba- con's Abr. Dower, D. 2. seem to render it clear that the wife would lose the presentation, because she is not com- pellable to take such assignment from the sheriff; and if she assent to it, she shall be bound by her own act, as where the assignment is made by the heir. 66 DOWER, ance of all the manors, the grantee may distrain for his whole rent in the other two manors, and in every part of them ; and it shall not be more prejudicial to the heir this way than the other way, fyc. 333. And a woman shall never be endowed, if f the freehold and the inheritance be not joined in her husband simul et semel during the marriage. 334. And therefore, if lands be given to two men and to the heirs of the body of one of them begotten, and he who hath the fee tail takes a g wife, and dies in the lifetime of him that hath the freehold, although he that hath the freehold dies, the wife shall not have any dower ; because the estate tail was not executed to all purposes in her husband : and yet if a stranger had entered after the death of him who had the freehold, the issue of the donee should have had a Jbrmedon en le descend, against him, and should have alleged the h esplees in his father ; and so to such intent the estate was executed in the donee, fyc. T.i iHen 4, 335- And if the husband hath an estate in land, -Dou'er.ay. e. c> by nne upon a c; ran t and render, for his life, P. 40 Ed. 3, , J . . Id. 37. the remainder to J. S. his son in tail, the re- mainder to the right heirs of the husband, and the fine is executed, if in this case the husband die, living J. S. his son or any issue by him begotten, the wife shall not be endowed ; although J. S. the son dies without issue after the death of the hus- band and in the lifetime of the wife ; causa pateU * [67] * But if a lease be made of land to a stranger for A [But sec years, the remainder to J. S. for life, the remainder v. Hurd, to the right heirs of J. S. and J. S. takes a wife Cowp. 481, an d dies during the term of years, his wife shall DOWER. 67 recover dower ; but execution shall stay during as to Copy- the term of years. holds -3 336. And if a lease of land be made to the [Bate,* v. husband for life, the remainder to a stranger for ^ ata > ' ,! years, the remainder to the husband in fee, and 32 g_j ' the husband die during the years, the wife may recover dower : but execution shall stay until the term be determined, for this mesne remainder for years shall be no impediment ; since the freehold and the fee were sufficiently joined in the husband simulet semel, for the wife to have dower, Sfc. (h). 337. If land be leased to A. and B. for the life [Fearoe of C. the remainder to the right heirs of A., and Co11 ^ Kt '. m - A. takes a wife, and ft dies living A. and B., and 37 g. b.j A. dies living B. his [i.e. A.'s] wife shall be en- dowed ; because cestay que vie died living A. the husband, so that the freehold and inheritance were joined in the husband simul et semel during the coverture (i). 338. And if lands are given to /. S. and Alice H. 50 Ed. 3, his wife in special tail, the remainder to the right DoKtr > 68* heirs of the husband, and the wife dies before issue had between them, and the husband takes another wife and dies, his second wife shall be endowed, (ft) bo if the first estate be pour autre rie only, and limited to the husband and his assigns. And the interests under such limitations will unite even while resting in contingency, upon a conveyance to uses. Trevelyan v. Trevelija?t, C. P. Tr. T. 1826 ; a short note of which case is given in another part of this volume. (i) For the remainder limited to the heirs of A. unites with his precedent estate of freehold, under the rule in Shel- ley's case. Vide 1 Prest. on Estates, 336. (ft) Because, by the death of Alice without issue, her hus- band became tenant in tail apres 6:c. ; in other words, a tenant for life only : and this estate for life consequently merged in bis immediate remainder in fee. 67 DOWER. 339. If there be lord and tenant by fealty and twelve pence rent, and the tenant leases the te- nancy to a stranger for life, and the lord takes a wife, and the tenant dies without heir, and after- wards the lord dies before the lessee for life, the lord's wife shall not have dower of the tenancy ; but -she shall be endowed of the rent of the seignory, fyc. 340. And if the grantee of a rent-charge in fee take a wife, and the grantor leases the land out of which the rent is issuing to a stranger for life, and the grantee of the rent purchases the reversion of the land, and the tenant for life attorns, and the grantee of the rent dies living the tenant for life, his [». e. the grantee's] wife, shall be endowed of the rent, but not of the land ; because the freehold and inheritance were not joined in her husband simul et semel during the coverture, fyc. M. 2 Ed. 3, 341. Now it is to be shewn of what things Dower, 123. a woman §] ia j] De endowed : And as to that, see Natura Brevium, with the additions upon the Writs of Dower, Sfc. Of a common sans nombre a woman shall not be endowed, Sfc. And if a man grant to me and my heirs to take yearly so many estovers in his wood in Dale, as I and my heirs will burn in the same maru)r of Dale, and I take a wife and die, my wife shall not have dower of the estovers, fyc. [€o. Liu. 342. But a woman shall be endowed of a mill, M iHen ^ as to nave tne tmrt ^ P art °^ tne profit °f the mill, lAwer,2i. SjC. because the mill cannot be severed. And i-j , 4 , 5 a woman may have a rent allowed to her out of Ed. 3, hi. 50. J P. 7 H. 6, a house, for her dower of the same house, or she DOWER. 07 may have a chamber of the same house assigned Dower,*. to her, in allowance of her dower of the house. D ' * erj 7 ' And a woman shall be* endowed of a villain in * [68] gross, as to have his services every third day 26' Lib. Ass. And a woman shall be endowed of an advowson 14 . 7 g. in gross, as to have the third presentment. And £. 6 Ed. a, & „ . c Dower, 146. a woman shall be endowed of the moiety or an j. a Ed.2, advowson in gross, as to have the sixth present- ;J? 0IC !£ ,5 |" ment, fyc. And a woman shall be endowed of D m ^ er> K ' a bailiwick as to have the third part of the profit P« l 3 Efl - 2 > , „ , . , * 1 1 11 , •, Dower; 161. thereof, and in such case she shall be contnbu- t. 7 Ed. 3, tory to the third part of the charge of exercising Dower, 104. the office. And so in the like manner she shall be endowed of a fair, mutatis mutandis, fyc. And a woman shall have dower of a common in gross which is certain. 343. And if a man grant to me and my heirs II. iaEd.3, to take yearly out of his meadow three loads of ^j WCr 'v^',' hay, and I take a wife and die, my wife shall have Dower, 85. dower thereof, 8$c, tamen gucere(l). And a woman may be endowed of a villain regardant, and of an advowson appendant, fyc. 344. But if a man be seised in fee of a manor M.isEd. 3, to which he hath common appendant, and take a ~. ou er ' ^ 1- 11 Jr. 13 Ed. 2, wife and die, and two acres of land, parcel of the Dower, 163. manor, are assigned to her for her dower, in allow- **• *7 _£?* ance of all the manor ; it seems in this case, that she shall not have common appendant to these (V) Ft is difficult to imagine any ground for this quare, unless from an apprehension that such a grant gave a mere personal privilege; but it would give an estate in fee-simple., (Stoughton v. Leigh, 1 Taunt. 40a) ; and the profit being a hereditament lying in prendre, the wife is duwuble of it as of a coiiniion in gross or tithes. Douer, 163. 68 DOWER. two acres ; for during the time they are in the d possession of the wife, they are not parcel of the manor; and the common is appendant to the manor, §c. ; tamen qucere (m). But if the moiety of the manor had been assigned to the wife for her dower, e by the name of a moiety of the manor, it seems clear that she shall have common appendant to this moiety, &$c. 345 If there be lord and tenant by fealty and the rent of twelve pence and twelve bushels of wheat, Sfc. and the lord takes a wife and dies, his wife shall have dower of the rent, scil. of the twelve pence and of the twelve bushels of wheat, Sfc. f 346. But if a man hold of me and my heirs by homage, fealty, and to find a chaplain to sing every Friday in the week yearly in the church of St. Nicholas in Dale, in the county of Middlesex, at such an altar for the prosperity of me and my friends, and for my ancestors souls ; and I take a o wife, and die, my wife shall be endowed of no part of this seignory ; and so shall it be in all the like cases, fyc. T. 4 Ed. 3, 247. But a woman shall be endowed of lands, Co. Li'tt. tenements, woods, fyc. rent-charges, rent-seeks, 32. a. fyc. But if an annuity be granted to me and my heirs, for the grantor and his heirs, and I die, my heir shall have this annuity against the grantor ; 11 (to) The wife would be entitled to a portion of the com- mon, as appendant to her dower, for the common is sever- able ; and although claimed as appendant to the manor, yet in rei veritate is appendant to the demesnes. Co. Litt. 122. a. 4 Rep. 37. b. (in Tyrringham's case) ; and see Wild's case, 8 Rep. 78. Bragg's case, Godb. 135, (cited and stated Bacon's Abr. Doner, B. 2.), is very different, as the court could ouly be appendant to the manor as such. DOWER. 68 and also against his heirs, if they have lands or tenements to the value descended unto them from the grantor in fee-simple ; and yet my wife shall not have dower of it ; causa patet. 348. And if a man seised of land in fee, lease P. 8 Ric. 2, it for life to a stranger, reserving two shillings " ffwer > l3 4- rent to him and his heirs, and take a wife, and die, the wife shall not be endowed * of this rent ; * [69 3 and yet the heir of the lessor shall have the rent with the reversion, and it shall be called assets to the heir in a Jbrmedon en le descend, brought by the same heir, fyc. Also the wife of the lessor shall not be endowed of a rent reserved to the lessor and his heirs, upon a lease for years (n), SfC. But the wife of the donor shall be endowed of a rent reserved to the donor and his heirs upon a gift in tail of land, 8$c 349. But a woman shall not be endowed of a use of land or rent, §c. (o), notwithstanding it was an inheritance in her husband, which the issue, that by possibility they might have betwixt them, might inherit, fyc. (n) Not literally of the rent ; but if the lease were made before the marriage, the wife's dower would be assigned to her subject to the term, and she would become entitled to a proportionate part of the rent, as incident to the reversion ; Stoughton v. Leigh, 1 Taunt. 402 : and if the lease were not made till after the marriage, it would be void as against her, and she would be endowed of the land. (0) That was of a use before the stat. 27 Hen. 8. c. 10. Trusts are now what uses were then, and in accordance with that doctrine it is now settled that a woman is not dowablc of a trust. This, however, was not established without great difference of opinion and contrariety of decision- Vide a powerful argument by Sir Joseph Jekyll in favour of the wife, in Banks v. Sutton, 2 Cox's P. Wms. 700. Vide also Chaplin v. Chaplin, 3 lb. 229. and Mr. Cox's note B. p. 232 there- 's** 09 DOWER. M. nEd.2, And in many cases a woman by her own act DowtT, 156. ma y prejudice herself of her dower, as if she commit treason, murder or felony, for which she is attainted, fyc. 350. And if a man seised of black acre in fee, take a wife and die, and the wife accept of a lease for life of black acre, fyc. she cannot demand dower of the same acre ; for if she demand it she must demand it against herself. Qucere, If she accept of a lease for years of black acre, whether by this acceptance she shall be excluded of her dower during the term, for ever, or for any time, Sfc. (p). 351. But if a man seised in fee of white acre, lease it to a feme sole for forty years, and the lessor intermarrieth with the lessee, and the hus- band suffer the term to continue as it was leased, without any alienation, or other thing done there- with, S)-c. and die within the term, it is said that in this case, the wife may have her dower pre- sently, notwithstanding the term doth continue ; because at the time of the lease she was not enti- tled to dower : And notwithstanding the term doth continue, it shall not oust her of her dower, until the term be determined ; because if it should (p) According to the case in Fitz. N. B. 149. E. and note, and Jenkins' Cent. 73. pi. 38. the dower is suspended during the continuance of the lease ; but as this is on the ground of inconsistency onl^y, it is apprehended that at most it could be so held only where the husband died possessed of no other lands, and that generally the widow would recover her dower without reference to the term created by the lease. But the term, in the part assigned to her for her dower, would of course merge in her estate for life ; and the rent upon the lease, if any were reserved, be apportioned. And see Viner'a Abr. Dowtr, X. pi. 20. DOWER. 6Q be prejudicial to any person, it would be to the prejudice of the wife herself. 352. And if there be husband and wife, and P. 11 Ed. 3. lands are given to them and to the heirs of the i-J^T' 27 husband, and the husband dies, and the wife b.(inBt 101 . a deed which belongs to the heir by reason of a reversion descended to him, it is a good cause for him to detain her dower in the same land ; but the detaining of charters concerning land of which the heir is not seised, is no cause to detain her dower of the same land. 358. And therefore, if a woman bring a writ of M.8 E6. 3, dower against the feoffee of her husband, and the Dower > lo 7' feoffee vouches the heir of the husband to war- ranty, See. if the heir enter into the warranty and plead such matter, it is no plea, because he is not tenant of the land, and therefore the deed doth not belong to him. And for the heir who comes into court as tenant by receipt, such matter is no plea, because the deed belongs to another as well as to him, Sec. 359. But if there be two* coparceners of land, * f-n and after partition made between them, their mother brings a writ of dower against one of them, it shall be a good plea for her to plead a 71 DOWER, detainer by the demandant, of a deed which con- cerns the inheritance whereof she demands dower; although the deed concerns as well the inherit- ance of the sister of the tenant as her own inheritance, fyc. 360. But if a man seised of lands in fee take a wife, and have issue a daughter and die, his wife being pregnant, and the daughter enters into the land, in such case such detainer of evidences by the wife, as before is said, mutatis mutandis, shall be no cause for the daughter to detain her dower, and the reason is, because it may be the wife is P. 41 Ed. 3, with child of a son, fyc. And know, that the de- TuTTvf 7 ' tainer of a transcript of a fine, from the heir by Dower, 101. the wife, is not a cause to detain her dower. And M. 10 Ed. 2, j t j g t0 k e k nown that no person shall justify the Dower, 112. . . . . J detaining of dower for detaining of evidence, but the heir ; and then it ought to be in manner and form aforesaid. 361. And therefore it is well shewn in the An- n Hen. 6, notations in Natura Brevium upon the Writ of Dower.?. (j ower that a guardian in chivalry cannot detain M. 7 Ed. 3, & J . Dower, 105. the dower of the wife for her detaining charters Co. Litt. concerning the inheritance of the heir. But a guardian in chivalry may justify the detainer of dower, for detaining the wardship of the body of the heir. And if the wife take away the infant, and deliver him to another man, yet it shall be a good cause for the guardian to detain her dower, for the Af 3 Ed. 3, wrong done to him, SfC. if she cannot deliver the ower ' • infant to him, in as good plight as he was when he was taken away, viz, unmarried, if he were un- married at the time of the taking away, §c. DOW K 11. 71 3CI2. But if the wife, as the mother of the in- fant, brings up or nourishes him, because he was living with her husband and her at the time of the death of her husband ; and another man claims to have the wardship of the infant, because (he saith) the father held of him by knights service, 8fc. and takes the child out of the custody or possession of the woman, this is no cause for the rightful guar- dian in chivalry to detain her dower. 363. But if an infant be dwelling with a stran- ger, and there brought up at the time of the death of his father, and his mother takes him from thence, and afterwards the stranger takes him again out of her possession, so that she cannot deliver the in- fant to the guardian in chivalry, it is a good cause to detain her dower, for the wrong which she did, viz, the eloignment, at a time when she was liable to his action, as to the wardship of the body ; and m. 8 Ed. 3. such matter may the guardian in chivalry well Dower, 10. plead, notwithstanding that he come into court by voucher of the infant being in his ward ; for the wardship of the infant by right doth not ap- pertain to any person but to him, except it be by his grant or agreement, SfC. 364. And although a woman will not go to her husband when he is wounded, in a county in which ' he does not dwell, and notwithstanding * r-t.»i that he dies of the same wound, and she will not bring an appeal of his death, yet she shall be en- dowed. 36.5. But qucerc, if the husband lie sick in the same house in which he and his wife are dwelling, and she will not come to him, if she shall have 1 72 DOWER, dower (5). And although a woman being in a frenzy, and of unsound memory, kill her husband, Or another man or woman, she shall not forfeit her dower, fyc. 12 Hen. 3, 366. And it is to be known, that the husband by his acts may prejudice the wife in her dower, scil. by laches of entry, by laches of suit, or by laches of pleading, and by divers other acts of which something shall be said, fyc. : Know, that when no possession was in the husband, either in deed or in law during the marriage, there the laches of entry of the husband shall prejudice the wife of her dower, except in special cases ; and therefore if a man seised of land in fee, be disseised of the same, and then take a wife and die without re-entering, she shall not have dower. 367. And if a man die seised in fee, and a stranger abates in the same land, and after the abatement the heir marries and dies without en- tering thereon, his wife shall not have dower of the same land. 3G8. And if a man enfeoff a stranger upon con- dition 011 the part of the feoffee, and the feoffor marries a wife, and the condition is broken, artd the feoffor dies v, ithout any entry made by him, or by any other in his name, Sfc, his wife shall not have dower of the land, Sfc. 369. And if J. S. seised in fee of one acre of land, exchange the same acre with T. K. for (s) Highly reprehensible as such conduci would be in a wife, the temporal law could take no cognizance of it; and therefore there is not (at least now) the slightest foundation for supposing that the act would be a forfeiture of her tiower. DOWER. 72 another acre in fee, and J. 8. enters and executes the exchange for his part, viz. for the acre which was put in exchange to him ; and T. K. takes a wife, and dies without entering by force of the exchange, now his wife shall not have dower of the one acre, nor of the other, &;c. And the reason is, because the husband was not seised of that land, either in deed or in law, during the coverture, <^c. 370. And if a man hath judgment to recover land, $c. and marries, and dies before entry or execution sued, his wife shall not have dower, 8$c. But if the husband be seised in deed, or in law, during the marriage, then his laches of entry shall not prejudice his wife of her dower. 371 . And therefore, if there be lord and tenant, p. aa -^A. and the lord marries a wife, and the tenant dies Dower, 16. without heir, and a stranger abates, and the lord dies without entering, fyc. his wife may have dower of the tenancy, fyc. 372. And if land be leased for life, the re- mainder to ,/. S. in fee ; and J. S. marries, and the lessee dies, and a stranger enters, and J. S. dies before any entry made by him, fyc his wife shall have dower of the same land, Sfc. And if a man be seised of a villain in gross in fee, and hath issue a son, who marries, and the father dies, and the son dies before any seisure of the villain, yet his wife shall be endowed of the villain, Sec. 373. And if a rent be granted to a man iu fee, and he accepts the grant, and takes a wife, and at the day of payment * the tenant of the land tenders * r-o"i the rent to the husband, and he will not receive T.11 H01.4. it, but utterly refuses it, and dies before any re- J>ower > 2fl - 1 2 73 DOWER, ceipt of the rent by him, or by any other in his name or for him, 8$c. and before any thing paid to him in name of seisin of the rent, fyc. yet his wife shall have d r, 74. p agg ^ ^, c t k e same sna }} n0 [ ous t his wife of her dower, for by such outlawry he shall not forfeit * [76] either * freehold or inheritance, 8?c. 389. If there be lord and tenant, and the tenant take a wife, and afterwards cesseth, upon which the lord bringeth a cessavit, and recovers, and enters into the tenancy, and the tenant dies : it seems clear, that the wife shall have dower ; for no laches or default can be deemed in the wife as to the cessor. But some say, the wife shall not [Vide sec. have dower in this case, because the cessor does 432. post.] not jj e m an y act (j one D y tne husband ; but it is his not doing, and because it is given by the statute of Gloucester, cap. 4. " And if he tarry, until it be recovered by judgment, let him be barred for ever," fyc. 390. But if there be lord and tenant, and the tenant lease the tenancy to a stranger for years, and the stranger cesseth, and the lord recovers in a cessavit and enters, the lessee shall lose his term ; causa patet, fyc. If there be lord and tenant, DOWER. 76 and the tenant take a wife, and alien the tenancy in mortmain, or set a cross upon it, and the lord enters, and the tenant dies, his wife shall have dower of the tenancy, Sfc. 391. If the husband of his own will go into P. 8 Ed. 3, another country which is inhabited by the King's Dower > '9^ enemies, and there willingly dwell with them, and aid and assist them against our lord the King, his wife shall lose her dower, fyc. 392. If W. enfeoff A', upon condition, that if H. 4a Ed. 3, W* pay to K. ten pounds at a day certain, the DoutT > 4°- feoffment shall be void ; and if not, that it shall be of force; and A", takes a wife, and at the day appointed W. doth not pay the money ; and after- wards W. dies, and by agreement betwixt the heir of W. and A', the heir of W . pays the money to K. by which the heir of W. hath the land, and afterwards K. dies, his wife shall have dower not- withstanding this acceptance of the money by her husband (y) ; causa patet, Sfc. See divers cases concerning dower in the chapter of Deeds ; mutatis mutandis. And also see other good cases concerning dower in the chapter of Dower in the first book of my master Littleton, fyc. and upon the writs of dower in Natura Brevium, with the additions and annotations, $c. 393. And because a woman who is entitled to have dower by the common law, ought to have {y) This is clear at law, but it is otherwise in equity ; for " the wife of a trustee in fee, or of a mortgagee in fee of a forfeited mortgage, is at law entitled to dower ; but if she were to prosecute her legal claim, equity would, at this day, tudoubtedly saddle her with all the costs." Sugd. V. & J'urch. 317. i 6 76 DOWER, an assignment thereof made to her, except in special cases ; therefore something shall he said, to shew what persons may assign dower (z) ; and then of what things assignment of dower may be made, and then where an assignment of dower shall be good, although it be not made by metes and bounds, fyc. Co. Litt. 394. Assignment of dower made by a disseisor 35- »• j s good, and shall not be avoided, if it be not made by covin or fraud, in manner and form as shall be said, if the woman have a right to have the same thing for her dower. H. 44 Ed. 3, 395. But if a disseisor, abator, or intruder be ower, 42. Q £. an y j an( j ^ covin of the woman who hath right to have dower of the land ; and such disseisor, abator, or intruder endow the woman, he who * [77] *hath right to the land, may destroy and avoid such dower by his entry into the land, SfC. T.nEd.4,2. 396. And if J. S. be tenant of land, of which a woman hath right to have dower, and he is dis- seised of the same by the woman and a stranger, or by the woman only, and afterwards she is en- dowed of the same land by one who is in in the land by her and the other joint disseisor, or by one who is in by her only ; such endowment may (:) When a widow now happens to become actually en- titled to dower, she generally enters into a private arrange- ment respecting it with the heir or devisee ; and if this cannot be accomplished, or the dower is withheld, recourse is had tt> a bill in equity to recover her dower: a remedy which has long almost entirely superseded the writ of dower so fre- quently mentioned in the following pages. For " although dower is a mere legal demand," yet the many difficulties under which a widow labours in recovering it at law, seem to entitle her to equitable relief. Vide 1 Madd. Pract. Chanc. 242, Sue. ; 1 lb. 564, &c. DOWER. 77 be avoided by the entry of the disseisee, and the reason is because she shall not take advantage of the wrong to which she herself was a party, fyc. 397. And therefore, if the issue in tail disseise 11 £d.4, r, the discontinuee of his father of the land entailed, p *" ., r and thereof enfeoff his father, and his father dies Dower, s. and the land descends to him, yet he shall not be t Co " ¥"" 35- B -J remitted, S)C. ; causa paid. And if there be two or three, or more jointenants of land, of which a woman hath right to have dower, and one of the jointenants assigns dower to the woman ac- cording to her right, it is a good assignment, and shall bind hi& companions ; but if he had assigned a rent issuing out of all the land to the woman for her dower, now the others, his companions, should not be distrained for the same rent, be- cause he was not compellable by law to assign a rent for her dower. 398. And if an assignment of rent issuing out 26 Li!j - A «- of land be made to a woman in allowance of her ' dower, which she ought to have of the same land, by a disseisor, abator, or intruder, the disseisee, or he who hath right to the land shall not be bound by such assignment, notwithstanding that it be made without any covin of the woman, <$ c. 399. And if a man seised of land in the right P. 10 Ed. s, of his wife, or jointly with his wife, assign the Dower > ' 39- third part of the same land to another woman for her dower, and she hath a right to have it for her dower, it is a good assignment ; and the wife shall be bounden thereby, notwithstanding that the husband dies living the wife : for when the hus- band alone doth a thing out of any court, which 77 DOV/Elt. he and his wife shall be compelled by law to do, it shall be intended the act of the one and the other, except in special cases, Sfc. M,3Hen.6, 400. And if a man seised of two acres of land iQ. a?iu eP in ^ ee ' ta ^ e a w '* e ' ant * en ^ e °ff a stranger of one Ceding, of the acres with warranty, and die, and both fit i ca.J acres are m one C ounty, and the heir endows his mother of parcel of his acre in allowance of all her dower in both acres, it is a good assignment : For if the feoffee had been impleaded by the woman in a writ of dower, he might have vouched the heir, and the demandant should have recovered against the heir conditionally, and so, Sec. 401. And if the heir lease for life to a stranger, parcel of the land which he hath by descent from his father, and assign to his mother parcel of the land which remains in his possession in allowance of all her dower, as well for the land leased as for '* [78] tne land which remains* in his possession, the fVin. Abr. assignment is good; and vet if the woman implead Voucher, . ° , ° . . / . . , , . E.b.a.pl.3. the lessee by a writ 01 dower, and he vouches his Goidingham lessor, the wife shall not have judgment to recover v.iS'/one,Cro. , , . , , , , , Jac. 688. against the heir, because he is not bound to the Michael v. warranty by the lien of his father, who was hus- Nctfiercootc, , j . ,., ^-, TC . . Dy.256.pl. band to tne woman. Qucere, it in such a case, 7. Butl. Co. the lessee vouch the heir generally, and the heir ;„ "A ' enter generally into the warranty, then it seems judgment shall be given for the demandant against the vouchee conditionally, tic. (a). (o) This appears to turn altogether upon the form of the voucher ; no precedent upon the point has been found. It seems that by vouching ' his lessor,' is meant that the tenant in his plea names him as the party who made the demist; DOWER. 78 402. And if there be three or four several feoffees of land of which a woman hath right to have dower, and one of them assign parcel of his land to her for her dower, in allowance of all the freehold which belonged to her husband, and she agrees to such assignment ; it is said, that this assignment shall discharge the other feoffees against the wife as to her dower ; and so it seems the law is, §c But some have said the contrary, for they say, that they cannot plead this matter against the woman in several writs of dower brought by her against them; tamcn quaere, (b). And the feoffee who made the assignment cannot come into court and plead this matter in actions brought against the other feoffees, because he is a stranger to those actions, and there is not any means to bring him into court, fyc. 403. And assignment of dower by the guardian Co. Litt. in knights service is good, if the woman hath 35 a - [& right to have dower of the land, and if she hath A n< 2 Ed.j not right to have dower thereof, yet it shall stand ^ cut r > *>• good until it be avoided (c). 404. But it seems assignment of dower by a and that by vouching the heir generally, is meant vouching him as " A. son and heir," &c. without showing how he is bound to warranty. In the latter case he might he bound either by his own deed or the deed of his ancestor, (Vin. Abr. Voucher, £. b. pi. 8. 9.) and when lie had entered into the warranty upon this voucher, his being named as heir iniizht probably be considered as shewing that lie was bound by his ancestor; and therefore lead to the usual form of judgment, as suggesttd in the qucere. (b) In Co. Litt. 35. a. it is laid down as clear that the. other feoifees can take no benefit of the assignment ; and Sir M. Hale, in his note upon that passage, states it to have been so adjudged in Throgmoi ton's ca. JV1. 8 Jac. C. 13. (c) Vide Co. Litt. 38. a. for the reason why the guardian in chivalry was allowed to assign dower. 78 DOWER, guardian in socage is not good, because a writ of dower doth not lie against him, Sfc. The same law is of tenant by elegit, tenant by statute mer- chant, tenant by statute staple, and lessee for years, §c. But an assignment of dower made by F. 7 Ric. a, him who hath the freehold is good, if it be of such «■«/» i 9o- a t} lul g as ma y De assigned, and which the woman hath right to have for her dower. And notwith- standing that the woman hath not right to have dower thereof, yet it shall stand good until it be defeated and avoided, $c. 405. Now we are to shew of what things an assignment of flower may be made. And as to that, know, that parcel of the thing in which the woman hath right of dower may be assigned to her, except in special cases. And therefore if a woman hath right to have dower of lands, tene- ments, rents, commons, and such like, <^c. parcel of the same thing may be assigned to her in the T.8 Hen 3, name of dower, and it is not necessary or requi- HiT^Heii 4 ' s * te tnat tne third part of the thing in which •3, Ibid 196. she hath right of dower be assigned to her ; for if the fourth part, the fifth part, or the moiety be assigned to her in the name of her dower, for all the freehold which her husband had, and she agrees thereto, it is sufficient and a good assign- ment, fyc. 406. And the heir is not compellable to assign * L79J to his mother for her dower the * capital messuage which was his father's, or any part thereof, al- though she be dowable of the same messuage (d). (d) The widow is dowable of the capital messuage in everv case where it is not the head of a barony by tenure. HarJ. & B. Co. Litt. 31. b. & n. 6. DOWER. 79 But if the heir assigns the same to her in allow- ance of other land, and she agrees to it, the assign- ment is good. And the heir may assign to her other lands and tenements whereof she is dowable, in allowance of the same messuage ; and if there be not any lands or tenements whereof she is dowable besides the capital messuage, and the heir assigns to her a chamber in the messuage in the name of her dower, in allowance of the same messuage, and she agrees to it, it is a good % assignment. But it seems that she is not com- pellable to take it, because the messuage is as it were an entire thing, fyc. And it shall be but trouble and vexation to a woman, to have a chamber within the house of another man, and if she w ill not agree to the same, then the heir may assign to her a rent issuing out of the same mes- suage in the name of her dower, 8fC- And such assignment is good without deed. And the same law is of assignment of common of estovers, or of common of pastures, fyc. or of any other thing whereof a woman is dowable. 407. But lands or tenements, Sf-c. whereof the H.33Hen.6, woman is not dowable, cannot be assigned to her rj^(j in the name of her dower, in allowance of lands or ca.4Rep.i. tenements whereof she is dowable; the same law, 1 j'^'^ 4 is of rent and common, 8fC mutatis mutandis, 8fC. 408. And it is said, that all the land which the husband had in possession during the coverture, cannot be assigned to her in the name of her dower, although he was seised of such an estate in the same land during the marriage, that the issue which by possibility they might have had 79 DOWER, betwixt them, by possibility might have inherited the same land by the common law, Sfc. T. 17 Ed. 3, 409. Lands in Wales may be assigned to a ower, 103. woman f or jj er dower in allowance of all the freehold of her husband, fyc. And by this assign- ment she shall be excluded from demanding dower of any other lands which her husband had in any place in England, Sfc. [Dyer, 91. 410. If a woman bring a writ of dower, fyc. and p' X *'va hathjudgmenttorecover,andbetweenthejudgment Sci.fa. 99. ' and execution the tenant assigns to her by word a [12 Mod. ren f issuing out of the land whereof she demanded Saunders v. dower, in allowance of her dower in the same land, Owen] t w hich assignment she agrees, it shall be a good bar in a scire facias brought by her to have execu- tion of the land recovered, fyc. But in the same ease, if the assignment had been by word of other land whereof she is dowable, and which was not comprised within her demand, it is said, that such assignment shall not be a bar in a scire facias brought by her to have execution of the judgment given in the writ of dower, fyc. because it is not pur- suant to the judgment, and because it is by naked words, 8$c. and this seems to be good law, Sfc. 411. It is a common speech, that the dower * [80] * of a woman ought to be assigned to her by metes Liu. sec. anc j |3 0un d s i e \ . except in the case of tenants in [36.] 44, ... Co. Litt. common, §c. which is put in the chapter of Dower 3' 2, "' in the first book of my master Littleton. And (e) It is said this was because dower was a tenancy of the heir, and therefore, like all other lands in tenure, to be sepa- rated from the demesnes of the manor. Gilb. on Dower (in *d Ed. Gilb. on Uses), 356-397. DOWER. 80 yet in divers cases, assignment of dower may be made without metes and bounds. 412. And therefore, if there be two men co- parceners of lands in fee-simple by the custom of gavelkind, and one of them takes a wife, and has issue, and dies before partition, S?c. and his issue enters and endows his mother generally of the third part of the moiety, and she agrees thereto, it is a good endowment ; and yet it is not assigned by metes and bounds ; and by such assignment she shall hold in common with the coparceners. An. 8 Ed .1 And in the same case, by one mean, the issue Entry, 76. might have assigned to the woman her dower in certain, viz. by metes and bounds ; for if he had made partition with Ins uncle before the assign- ment, then it might have been made by metes and bounds ; but notwithstanding that it is good in the manner and form in which it is made, as before is said. 413. And it hath been holden, that if the heir M. 16 Ed.3, enter, fyc. and assign to his mother the third part ■* WMr y»& 1 - per mie et per tout of the land which was his father's, to occupy with him in common, of which land she was dowable, and she by force thereof enters and occupies with him, it is a good endow- ment ; tamen it seems at this day the law is other- wise ; ideo queer e, (f) §c. 414. But if a woman bring a writ of dower of land, Sj-c. and recover her dower, and sue forth a (/) In Booth or Coots v. Lambert, Tr. T. 1651. B. It. ; But!. Co. Litt. 32. b. n. 1. Sty. 276, also cited and stated Vin. Abr. Dower, X. pi. 3, such an endowment with acceptance was decided to be good ; and this was also held to be the lavf in the late case Howe v. Power, 1 Bos. & P. N. R. 1. 80 DOWER. writ directed to the sheriff to put her in execution, fyc. the sheriff ought to put her in execution of the third part by metes and bounds, if he may so do, Sj-c. An. 23 Hen, 415. If a woman be endowed of the third part •20T °" er ' °f the profit of a mill, that is not certain, and yet it is good ; and she shall grind there toll-free. The same law is of a bailiwick ; mutatis mutandis, %c. 416. And if a man seised of three shillings of Co. Liu. rent-charge in fee, take a wife, and have issue, and 34 ' b * die, the wife cannot distrain for the third part of this rent before assignment made ; and, yet it certainly appears how much of the rent she shall have, Sj-c. And although she bring a writ of dower of the same rent, and recover, yet she cannot P. 40 Ed. 3, distrain for rent behind after the judgment, before ouei >3 • execution sued, although the certainty thereof appears : and how and in what manner the sheriff shall put her in seisin thereof, may be seen in the Chapter of Feoffments, fo. 42 ; mutatis mu- tandis, 8fc. 417. If there be lord and a woman tenant by fealty and three shillings rent, ar.d they intermarry and the lord dies, the wife shall have twelve pence of the rent for her dower of the seignory by way of retainer, fyc. without any manner of assignment being made by any person, ta ^ 6 a wife, and enfeoff a stranger ;il. 2,{. of one of the acres with warranty, and have issue and die ; and his issue enters into the other acre, and the wife brings a writ of dower against the M. 8 Ed. a, feoffee, and he vouches the issue, fyc. who loses Potrer, 157. by default, and the wife has judgment conditional, viz. to recover against the vouchee, if he, Sfc. and the demandant sues execution according!}', and she is put in execution of land, which the vouchee hath by descent as heir to her husband in the same county in which the writ of dower is brought, of which land she is dowable, and the tenant holds in peace, and the vouchee is re- stored to the land which the wife recovered by a writ of deceit : In this case, the wife shall have a scire facias against the feoffee who was tenant in the writ of dower, to be endowed anew of the land of which she demanded dower in the writ of dower ; and notwithstanding that the tenant hath enfeoffed a stranger of the same land before the scire facias brought against him, yet his feoffee shall be bound by the judgment given in the writ of dower ; because the judgment in the writ of dower was given of this land conditionally, 8fci H. 32 Ed.i, 42-2. And if a man seised of land in fee, take a Doner, 121, w jf e? an( j have issue, and die, and the wife takes a second husband, and the issue enters into the * [82] land as heir to his father, and assigns * the third part by metes and bounds to his mother by the agreement of her husband for her dower, in allow- ance of all the freehold which his father, her late husband, was seised of; and her second husband discontinues the same land in fee, and dies, the DOWER. 82 wife may have a cui in vita against the discom 2 Inst. 309. tinuee of this land : And it hath been holden, £?S^5j that she may rof use it, and be anew endowed ac- cording to the value of the whole land, which was in the possession of her first husband during the coverture, of which possession she was dow- able, Spc. tamen qucsre (g) ; because she with her husband might have compelled the issue to endow her by a writ of dower. And if they had done so, she should not be anew endowed. But there appears a diiference as this case is, where she is endowed by a writ of dower, and where by the assignment of the heir, or another person, with- out a writ of dower, fyc. 423. And if the freehold whereof the widow is dowable, be in the possession of divers persons by several titles, she in a writ of dower brought against one of them, shall recover only the third part of the freehold which is in his possession : So that a man or woman, fyc. who hoth possession of only parcel of the freehold of which the woman is dowable, shall not be charged according to the possession of the whole freehold of which she is dowable, except he or she wills so to be, fyc. 424. Now is to be shewn, upon what person the P. 33 Ed. 3. tenant in dower shall be attendant, and by what ou>e ''' l o'> (g) Since Perkins wrote, the statute 32 Hen. 8. c. 08. s.6> (explained by 34 & 35 Hen. 8. c. 22.) has provided that no act of the husband only shall make a discontinuance of the wile's estate ; but that she and her heirs may enter notwith- standing any act of his. 'J here is no authority to be found upon the point of this qu according to the proportion of the {'•• 55- land which she holds in dower to the remainder of the land held, except in special cases, Sfc. 425. And therefore, if there be lord, mesne, and tenant, by knights service, and three shillings rent, and the tenant takes a wife, and has issue and dies, his issue being within age, and the mesne seizes the ward of the body and land, and enters into the tenancy, and assigns the third part of it by metes and bounds to the woman, mother of the ward for her dower, she shall be attendant upon the guardian in knights service by twelve pence rent ; and if he die during the nonage of the heir, then she shall be attendant upon the executors of the guardian by twelve pence rent, Sfc. until the heir shall come of full age ; and when the heir comes to his full age, she shall be attendant upon him by twelve pence, Sfc. H.^oKd. 3, 426. And if there be lord and tenant by fealty 7 * ., . and twelve pence rent, and the tenant takes a 12 Lib. Ass. l pi. 20. wife, and has issue, and is disseised of the te- i .36 Hen. 6, naney an( j fc es an( j the disseisor endows the Dower, 30. ," ' J wife, now she shall be attendant upon the dis- seisor by four pence. But if the issue bring a writ of entre sur disseisin en le quibus against the tenant in dower, of the land which is holden DOWER. * in dower ; and she shews the special matter and * I 83] says, she claims nothing in the land, but in right of her dower, and is ready to be attendant upon whom the court shall award, Sec. In this case the court ought to award, that she shall retain the land demanded, for her dower, and that she shall be attendant upon the heir who is the de- mandant, and by this judgment the reversion is in the demandant, and not before ; and it seems the heir hath no other remedy in this case to come to the reversion of the land which the wife holds in dower, Sec. For if he had entered upon the tenant in dower, Sec. she might have had an assise, and recovered ; because she had a right to have dower, Sec. and she could not at the time of the assignment made demand her dower of any per- son, if not against the disseisor who made the as- signment, Sec. and the assignment was not made by covin, Sec. tauten qucere (h) if the heir can have any other remedy to come to the reversion, Sec. But now the wife shall be attendant upon the heir by force of the judgment, Sec. and not upon the dis- seisor, Sec. 427. And in the same case, the heir cannot (i) (li) This qucere is considered to be, wlielher the heir can recover the reversion upon the estate in dower, otherwise than by action; and it seems he cannot, for attornment ot the widow to him wi-uld be void at llie common law. Gilb. Ten. 104. (»') This is the language of the text, but the Editor con- ceives it to be a mistake in the copies, and not the law ; for as there is no descent of the estate from the disseisor, and the right of entry descended from the disseisee to his issue, (who pursued his writ only for that part in the tenancy of the widow, this being his only remedy against her,) there appears no reason to deprive the issue of his right to enter into the two-thirds iu the possession of the disseisor and oust hiiu : and which he might do even pending li is assize against the disseisor, and it would be merely matter of abatement to the writ. 83 DOWER, enter upon the disseisor, and put him out of the other two parts of the tenancy, fyc. And if he grant the reversion of the tenant in dower to a stranger, and the tenant in dower attorns, she shall be attendant upon the grantee ; causa patet. II. 22 Ed. 3, 428. If there be lord, mesne, and tenant, and pTE'd" 1 ' tne tenant holds of the mesne by three pence, Dower, 143. and the mesne holds over by twenty pence, and the tenant takes a wife, and the mesne releases all his right in the tenancy §c. to the tenant, and the tenant dies, and his wife is endowed of the third part of the tenancy by the heir, she shall be attendant upon him by one penny, and not by the third part of the twenty pence, because she shall be endowed of the best possession which her hus- band had during the coverture, Sfc. M.23Ed.3, 429. Lord and tenant are by fealty and twelve I)»ut r, 1 30. p ence> the tenant takes a wife, and the lord pur- chases the tenancy in fee, and the estate is executed in him, and the tenant dies, and his wife is endowed of the third part of the tenancy, now she shall not be attendant by any rent, because, by the purchase of the tenancy in fee by the lord, the seignory was determined ; and a thing which is determined cannot be revived, &c 430. Lord, mesne, and tenant, are by fealty and twelve pence, and the tenant takes a wife and dies, and his wife is endowed of the third part of the tenancy by the heir of her husband, she shall be attendant upon him by four pence : But if in the same case the lord paramount release all his right in the tenancy to the heir, by this release P aq TO 1 t ^ le mesna 'ty is determined ; and therefore the Ed. 3, 17. wife shall not be attendant upon the heir by any DOWER. 83 rent after the release, Sfc. because she was at- tendant upon him but in respect of his charge over, Sfc. 431. But if lord and tenant be by fealty and twelve pence, and the tenant gives the tenancy to J. S. in tail, to hold of him and his heirs by fealty and twenty shillings rent, and J. S. takes a wife, and dies without issue, and the donor enters and endows the wife of the donee, fyc. she shall be attendant * upon him by six shillings and eight * [84] pence ; for if her husband had been living, he should have held all the land by twenty shillings ; and she is endowed of the possession of her hus- band, Sfc. and she in this case shall not be atten- dant upon the donor in respect of the charge over: But she shall be attendant upon him by reason of a special reservation made by the donor, Sfc. And inasmuch as she has the third part of the land, out of which the reservation was made, it is reason tbat she should be attendant upon him by the third part of the rent which was reserved, fyc. And if in the same case the lord release all his right in the tenancy, to the tenant who was donor, yet she shall be attendant upon the donor by six shillings and eight pence, fyc. 432. But if there be lord, mesne, and tenant, and the tenant holds of the mesne by fealty and three shillings rent, and the mesne takes a wife, and the tenant brings a writ of mesne against the [Co. Liu. mesne, and forejudges him, and the mesne dies, I0 ° a - '' ' the wife of the mesne shall have dower of tin- rent by which the tenant held, and shall not be attendant upon the tenant ; causa patet, Sfc. k 2 84 DOWER. [Vin. Abr. 433. If lord and tenant are by fealty and /'o '/' ' twelve pence, and the tenant gives the tenancy in tail, reserving twelve pence, and the donee takes a wife and has issue, and discontinues the land entailed, in fee, and dies, and his wife brings a writ of dower against the discontinuee, and re- covers, and has execution, she shall not be atten- dant by any rent upon the discontinuee, for she is not chargeable in the same course her husband was, for the donor cannot avow upon her for the rent reserved, 8?c. but he may avow for the same upon the issue in tail notwithstanding the discon- tinuance ; and yet the wife shall not be attendant upon the issue in tail, until he hath recontinued the estate tail, &>c. tamen qucere, Sfc. (£). 434. If lord and tenant are by fealty and a horse, price forty shillings, and the tenant takes a wife and dies, and his heir enters into the tenancy, and endows the wife of the third part thereof, she shall be attendant upon the heir by thirteen shillings and four pence. But if the tenure (fc) This quare appears well founded : for although by the discontinuance the reversion of the doner or tenant is turned to a right, and the rent incident to that estate consequently extinguished, (Co. Litt, 77. a. Webb v. Russell, 3 T. R. 393,) or rather suspended till the restoration of the estate, so that the widow of the donee cannot be attendant by any part of tltat rent ; yet as the discontinuee stands in the place of the donor or tenant, (Co. Litt. ib ) and holds by the same ser- vices, there appears no reason for exempting the dowress from one third of the rent to the lord, in respect of his seignory ; a charge prior to the title of dower and to which the land is necessarily liable. The donor's right to avow upon the heir in tail for the rent reserved, exists indepen- dently of the estate, and is founded partly upon the statute de douis, (Gilb. Ten, 66.) and partlv upon privity of contract. Co. Litt. 269. a. DOWER. 84 be by fealty and a horse to be rendered yearly, fyc. without limiting and making mention of what value the horse should be, fyc. in that case the wife shall be attendant upon the heir by rendering unto him every third year a horse, fyc. The same law is of all things which are entire, mutatis mu- tandis, 8fc. except in special cases, Sfc. 435. And as to dower by custom, sufficient hath been shown by my master Littleton in his Chapter of Dower, and in Natura Brevium, with the additions upon the writs of dower, SfC. But it is to be known, if the custom be that a woman shall have for her dower the moiety of the lands and tenements which were her husband's, holden in socage within such a precinct, '9°- door, or Src. the moiety of all the lands and tene- ments which shall come to him in fee during the coverture, and afterwards during the coverture he purchases lands or tenements in fee, and dies, his wife shall have the moiety of those lands by force of the assignment, SfC. tamen qncere (m). 440. The same law is, if a man endow his wife, M. 14 Hen. ad ostium ecclesice, of lands which his mother holds 3 ' ower ' in dower, the reversion to him in fee, upon condition, that if his mother die during the mar- riage betwixt them, that then his wife shall have all the lands for her dower, and afterwards his mother dies during the coverture, fyc. 441. * And as to dower ex assensu patris, it * [861 hath been well spoken of by my Lord Littleton in P. 3 Ed. a, his first book in the chapter of Dower, and in x^Ed 2 Natura Brevium, with the additions upon the Doner, 154. writs of Dower, fyc. And it is to be known, that so and in the same manner as there is dower ex assensu patris, in the same manner and form there is dower ex assensu matris ; mutatis mutandis. 442. But there is no dower ex assensu fratris, P. 8 Hen. 3, nee consanguinei ; ana the wife ought to have a ^° afr > 10 3- 5 _ M. 29 Ed. 3, (to) This point is now unimportant; but it is apprehended '^" U,T > 1 34- that such an assignment could not have been sustained ; and ' 4° *~"3« that not only on account of the want of that certainty, which 45 • according to Littleton and Lord Coke was essential to it, but ^-° - ^ ,u * because the husband could not create this freehold estate in 35- b. lands of which he was not seised, and to which lie. had not even a presumptive right, as in cases of dower ex assensu patris. K 4 86 DOWER. deed of the father or mother, proving his or her assent and consent, for his freehold shall be bound thereby, and livery of seisin shall not be made thereof ; and the father may well make a deed to his son's wife, 8$c. And yet in ancient books, such assent and consent hath been tried by proofs, but the law is contrary at this day, Sfc. And such endowment ought to be made immediately after affiance made between them at the church door or in the church if the marriages are used to be made in the church, SfC. 443, And yet it hath been holden in ancient books, that where the son is heir apparent to his father (and so he ought to be, for such endowment made to the wife of the second son is void, $?c.) if he marry against his father's will, and afterwards within eight weeks after the marriage, the same son endows his wife, with the assent of his father, of the lands and tenements of the father, 8)X. the same was a good endowment, fyc. 444. And where the endowment ex assensu patris, vel matris, is good and sufficient in law ; the wife of the son immediately after the death of her husband, in the life of his father may enter into the lands so assigned to her in dower, fyc. M. 4 Ed. 3, 445. And if there be father and son, and the Co'Ti'tt 1? f atner is se i se d of land in fee, and leases it to a 35. a. stranger for life, and afterwards the son takes a wife, and endows her ex assensu patris, of the re- version of the same land, and after the lessee dies, and the father enters into the land leased, and the son dies ; his wife shall not have dower by force of this assignment, §c. because at the time of DOWER. 8*5 the assignment and assent, the wife was not dowable of the same reversion by the common law, although the reversion had been in the possession of her husband. And although the freehold and the fee are joined in the father of the husband simul § semel during the life of her husband; this shall not help the wife, for her title by force of such endowment did not begin after such endow- ment and assent of the father, Sfc. nor before such endowment and assent, but took all its effect only at the same time, &$c. 446. The same law is, if the son endow his wife with the assent of his father, of lands of the father which he holds jointly in fee with a stran- ger at the time of his assent, Sfc. So shall it be if such endowment be made of lands or tenements Sfc. * which the father holds for the term of his * [8"] life, at the time of such endowment. 447. But if the father had been seised in tail of the lands, whereof such endowment is made, at the time of his assent, Sfc. he shall be bound thereby during his life : But the issue in tail shall not be bound thereby, nor a woman who hath title of dower of the same land, before the assent, Sfc. as the wife which the father had at the time of the assent, fyc. nor shall any stranger who hath a more ancient title to the same land, SfC. be bound by such endowment and assent, Sfc. 448. And it hath been holden, if there be T. 8 Ed. 3, father and son, and the father is seised of land in D ° ue £i l9 *°* fee with his wife, as in her right, and the son en- Dover, iag. dows his wife of the same land with the assent of his father, and the son dies in the life of his father, P- 3 Ed. c. . „ Dower, 126. •^ .1 87 DOWER. that the son's wife shall not have dower of this land against the father ; yet the father may make a feoffment of the same land during the coverture between him and his wife, and it shall be good against him ; and it hath been said, it is because in such case the husband presently dismisses him- self of the possession of the land ; but in the other case he remains seised of the land, and in right of his wife, and when this matter appears to the court, which is a third person, the court shall bar the son's wife of her dower, because other- wise it would do wrong to the wife of the father : tanien qucere (n), because the father cannot plead such matter ; but if it be in an action in which receipt lies, if the wife be received upon default of her husband, she may well plead this matter, 8>)-c. yet although she is received, it seems, upon the matter in law, the son's wife shall have the dower which was assigned to her by her husband, with the assent of his father, S?c. 449. For if a man be seised of land in fee in right cf his wife, and he and his wife grant a rent- charge out of the same land to a stranger in fee, and the grantee is seised thereof, and afterwards distrains for the same rent, and a rescous from him is made by the grantor, and the grantee brings an assise of the same rent, $,-c. and the wife (n) The reasons for this qucEre are not satisfactory ; such an endowment, it is conceived, would be void ab initio, since although by marriage the husband gained an estate of free- hold in his wife's right, and even the fee is considered iu him to some purposes, yet it cannot be said simply that he is seised in fee \ i. e. to him and his heirs; and this according to Littleton's definition (s. 40.) is essential to the validity of this endowment. DOWER. 87 of the grantor is received upon default of her husband, (although she has nothing in the rent, Sec.), and pleads the special matter, yet notwith- standing this, the plaintiff shall have judgment to recover, Sec. And yet in the same case, the hus- band continues his possession in the land, out of which the rent is issuing, as in the right of his wife, Sec. But notwithstanding this the grant is good, at least during the coverture between the husband and wife, Sec. et sic hie (o). 450. Dowment dc la pints beale part is in such M. 5 Ed. 3, manner and form as my master Littleton hath shewn p °™'Cl l ' * in his first book in the chapter of Dower, Sec. fo.17, KMc And if in such case the lands which the woman hath as guardian in socage be not of value to make such endowment, or if a rent-charge or, Sec. be issuing out of the same land, which rent had its beginning before she had title to have * dower, Sec. * T88] by reason of which rent, or, Sec. the lands which 6he hath as guardian in socage are not of sufficient value to made such endowment ; then the woman, by way of replication, may shew this matter against the guardian by knights service, Sec. And if she P. 45 Ed. 3, do so, and the guardian in knights service cannot §• „ , . , 6 M.22Ed.4, deny it, eye. or otherwise traverses the same, and Dower, 16. it is found lor the woman by verdict, then she shall ^ 39 Ed ; • 3» . Dower, 36. recover so much of the land holden in knights service, as shall amount with the lands holden in socage, to the value of the third part of all the (o) 'i'he case put in this section does not bear out the in- ference, which seems to be drawn from it in the text; and for this obvious reason, that the grunt of the rent (like a dis- continuance, noticed in the preceding section,) is as l'ar as possible executed ; while the assignment of the dower is but executory. kC 88 • DOWER. lands holden in knights service, and in socage, if" the case so require, Sfc. T. 39 Ed. 3, 451. But if all the lands which the husband had Dower, 36. were holden i n socage, Sec. and his wife hath them Co. Litt. , . a ' j 39. a. b. as guardian in socage, she shall be allowed the P. 45 Ed. 3, third par t f the profits upon her account, in allow- f. 5. Dower, F \ . * 49. ance of her dower in the mean time : but in such case, she shall not endow herself of the third part of the lands or tenements, to hold in freehold, Sfc. 45'2. And if in the same case the woman guar- dian in socage bring a writ of dower against the heir, it is no plea for the heir to say, that she is guardian in socage, and may endow herself, Sec. M.21 Ed. 3, 453. And if a woman guardian in socage bring Dower, 84. wr j t f (j ower against the feoffee of the husband litz. Nat. ° B. 149. with warranty, the feoffee cannot shew the special M.25 Ed. 3, ma tter, and pray that the court will award, that she may endow herself tie la pluis beetle part, Sec. M. 5 Ed. 3, because he may vouch the heir : but the guardian Dower, 118. ^ j^g^s service cannot do so, Sec. 454. And it is no plea for the guardian in knights service to say, that the woman who is de- mandant in the writ of dower, tvas seised of certain lands and tenements, Src. as guardian in socage ; and pray that the court will award that she may endow herself de la pluis beale part, Sfc. causa patet. But queer e (;;), if he say that she was seised of (p") Dower de la pluis beale necessarily ceased wiih our ancient tenures ; therefore this point in pleading is no longer worth considering; but it may perhaps be illustrated by the case of an heir sued for the specialty debt of his ancestor, who, even before the statute 3 & 4 W. & M. c. 14. could not exempt himself from the claim, but by pleading ' riens per descent at the time of the original writ purchased.' Vide Dyer, 149, a. pi. 80. DOWER. 83 lands and tenements, §c. as guardian in socage at the day of the purchase of the writ. This seems a good plea, if the lands and tenements be not devested out of her possession by rightful title ; and if it be so, yet the plea is good until this matter be shewn by the woman by way of replica- tion, SfC. 455. If a woman guardian in deed in knights service, of lands and tenements which were her husband's, bring a writ of dower against another guardian in knights service, of other lands and tenements which were her husband's, it is no plea for him to shew the special matter, and pray that it be awarded by the court that she may endow herself de la pluis beale part, $c. because she being guardian in knights service takes the issues profits and revenues of the same lands to her owu use, Sfc. TENANT BY THE CURTESY. [89] [Co. Litt. •29- a] CHAPTER VI. Of Tenant by the Curtesy. [Viner's Abr. title Curtesy. Bacon's Abr. Curtesy of' England. Com jus's Dig. Estates, D. 1. 2.] 456. JVlY master Littleton in his first book in the chapter of Tenant by the Curtesy, hath well declared of tenant by the curtesy, and hath also put a good maxim in law concerning tenant by the curtesy, in his chapter of Dower, c^c. 457. A man shall not be tenant by the curtesy of a right only, 8$c. nor of estates in suspence, A man shall not be 1 Ed. 3> Dower, 70. [Doe v. Brigktwen, except in special cases, Sec. tenant by the curtesy, fyc. of a use («) of lands 583, as to Copy- holds.] or tenements, 8$c. A man shall not be tenant by the curtesy of a possession in law. 458. And therefore, if a feme sole seised in fee of lands or tenements be disseised, and take a (a) That is, a use before the statute 27 Hen. 8. c. 10. At the common law there was neither doner nor curtesy of a use, which was then what a trust is now : and by analogy a wife is not now dowable of a trust estate ; vide s. 349, ante and note (o) there. But by a strange inconsistency, it is equally well settled that a husband shall be tenant by the cuitesy of a mere trust estate. Vide 1 Fonbl. Equity, 99 ; l Madd. Pract. Chanc. 365 ; H.& B. Co. Litt. 29. a. n. 6. ; and Prest. Walk. Convey, chap. Estates by the Curtesy, and the references there given. And so where money is to be laid out in lands in fee for the wife, and she dies having had issue, the husband shall lake a life estate in this money or the land to be purchased with it . Sweetapple v. Bindon, 1 Vern. 536. TENANT BY THE CURTESY. 89 husband, and they have issue, and the wife dies before any re-entry made, Sj-c. the husband can- not enter into the lands or tenements and have them as tenant by the curtesy, because there was but a right of entry, S$c. or of action, fye. to him and his wife during the coverture as in right of his wife : but if the wife during the coverture had entered into the same lands and tenements un- known to her husband, and the disseisor had re- entered during the coverture, and the wife had died, the husband knowing of the entry of his wife, may enter and oust the disseisor of the lands and tene- ments, and have and hold them during his life as tenant by the curtesy, fyc. 459. If a woman be seignoress, and a man be tenant, and they intermarry, and have issue, and the wife dies, the husband shall not be tenant by the curtesy of the seignory, because the seignory was in suspence. 460. But if a feme sole hath common or rent in fee, issuing out of land, SjC. and the tenant leases the same land to a stranger for the term of another man's life, and the woman marries the lessee pou?- autre vie, and they have issue ; and the cestui que vie dies, and afterwards the wife dies, the husband shall be tenant by the curtesy of the common, Spc. The same law shall be if a woman hath housebote and haybote appendant to her inheritance; mutatis mutandis, Ac 4G1. If a feme sole hath a rent-charge in fee issuing out of land, and the tenant leases the land to J. 8. for twenty years, and the woman marries the lessee, and they have issue, and the wife dies within the term, qucere, if the husband shall be W TENANT BY THE CURTESY. tenant by the curtesy of the rent after the term determined, S,c. (l>). 462. If there be a woman seignoress and a te- nant, and the tenant enffeoffs a stranger of the tenancy upon condition, and the woman seigno- ress marries the feoffee, and they have issue, and the condition is broken, and the wife dies, and the feoffor enters upon the feoffee, and puts him out of the tenancy for the condition broken (du- ring the coverture) yet the feoffee shall not be tenant by the curtesy of the seignory, Sec. 463. If a feme sole seised of land in fee, enfeoffs a stranger thereof to the use of the feoffor and her heirs, and afterwards she takes [90] a husband, and they have * issue, and the wife dies before any estate of inheritance executed in her, during the coverture, of the land which was in use, the husband shall not be tenant by the curtesy of the use (c), Sfc. And so shall it be of (6) If the grantee of a rentcharge for life, in tail, or iu fee, accept a lease for years of the land upon which the rent is charged, the rent is clearly suspended during the existence of the terra. But this is different from the case put in the text, where the rent comes to the termor by act of law ; and in this latter case, whether the rent would be suspended or not, seems to depend upon the Terms of the demise ; for if the termor held under a reserved rent, and fas between him and his lessor) not subject to the rentcharge, it is conceived no suspension would take place, as the rent, although charged upon the land, issues out of the estate of the tenant, i e. the freeholder, and not out of the possession of the termor; and if a disseisin of the rent were alleged, the writ would necessarily be brought against the tenant of the freehold. However, whether this be or be not correct, the husband would certainly take his estate by the curtesy in the rent upon principle, and Co Litt. 29. b. furnishes an authority in support of this. (c) This is of course understood to be before the stat. 27 Hen. 8. c. 10 ; for since the statute the legal estate would be immediately transferred to such a use, and the husband consequently be tenant by the curtesy at law. TENANT BY THE CURTESY'. 90 the use of all other things inheritable, mutatis mutandis, fyc. 464. And if there be father and daughter, and the father is seised in fee of lands and tenements, Sfc. and the daughter takes husband, and they have issue, and the father dies seised in fee of the lands and tenements, and the daughter dies be- fore any entry made by her, or her husband, or any other for them, the husband shall not be te- nant by the curtesy of the said lands and tene- ments : because there was but a possession in law of the same lands and tenements in his wife during the coverture, fyc. The same law is in all like cases, 8$c. 465. And if before the statute of Westmin- [v Inst. 336. ster 1. De donis conditional ibus, cap. 1. lands had ■ ?)''■ 3 '^' * 7 i in fame * been given to the husband and his wife and the ca.] heirs of their two bodies begotten, and they had had issue, and the husband had died ; and she being seised of such estate in the same lands and tenements, had taken another husband, and they also had had issue, and the wife had died, the second husband would have been tenant by the curtesy of the same lands, fyc. although the wife died after the statute made ; and the same ap- pears by the words of the statute, which are, Nee secundus vir, fyc. 4.66. And if a feme sole seised of lands, Sfc. 21 Hen. 3, in fee, take a husband and have issue, and the ro'T,"' 1!l ^" „ [° lie l»- 34- husband dies-, and she being so seised, 8fC. takes b. in Point's another husband and has issue by him, and the ca ^ wife dies, living her first issue, yet the second husband shall be tenant by the curtesy, SfG. 90 TENANT BY THE CURTESY. 4G7. And if a feme sole seised of land in fee lease it to J. S. for term of life, and afterwards she marries T. D. and they have issue, and she dies, living the lessee for life, the husband shall not be tenant by the curtesy of this reversion : but qucerc, if the wife had reserved a rent, Sfc. to her and her heirs upon the lease, whether the hus- band should have had the rent as tenant by the curtesy or not, (d). And if the lessee die, living the husband, he cannot enter into the land, nor have and hold it for his life as tenant by the cur- tesy, Sfc. 7 Ed. 3, 468. If there be father and daughter, and the F'T N^ father is seised in fee of an advowson in gross, Br. 149. B. and the daughter takes a husband, and the father t Oo. itt. fc es ^ g0 t | iat t j ie ac j vowson descends to the daugh- ter ; and she hath issue by her husband, and dies before the advowson becomes void, yet her hus- band shall be tenant by the curtesy: and although the advowson becomes void during the coverture, and the wife dies after the six months past, and before any presentment made by the husband, fyc. so that the ordinary presents by lapse to this avoidance, yet the husband shall present to the next avoidance as tenant by the curtesy (e), 8fe. (d) Vide Mr. Hargrave's note (7.) Co. Litt. 29. a. As he offers uo opinion upon the point, it is perhaps presumptuous to observe, that although the freehold of the rent is in the husband, this does not appear sufficient to take the case out of the principle of the case U|>on dower, cited and stated in s. 34!$. ante, and cited and explained by Lord Coke, 1 lust. 32. a ; and, if so, it follows that the husband shall not take the rent by the curtesy. (e) This case can hardly be considered clear. Vide Co. Litt. 29. a. and Mr. Hargrave's note (5.) there. TENANT BY THE CURTESY. 90 469. And if a rent in fee descends to a mar- a ried woman, * and she dies before any day of * [913 payment, yet her husband shall be tenant by the 3 • 7 ' curtesy of the rent, although there was not any Bincent, 3. seisin of it during the coverture between them ; and although the day of payment of the rent in- curred in the life of the wife, and she died before b any demand made of the rent by her husband, yet he shall be tenant by the curtesy (e). 470. But if possession in fee, in law, of lands or tenements in the county of Yorl; descend to a married woman, and the husband and his wife are dwelling in the county of Essex, and the wife dies within one day after the descent, so that the husband could not enter during the coverture, for c the shortness of the time, yet he shall not be tenant by the curtesy, 8$c. And yet, according to com- mon pretence, there is no default in the husband. But it may be said, that the husband, before the death of his wife's ancestor, might have spoken to a man dwelling near the place where the lands Sfc. lay, to enter for him and his wife, as in her d right, immediately after the death of her ances- tor, Sfc. 471. And if the issue which the husband Co. Litt. hath by his wife be born alive, notwithstanding 2 9- b> it die before it be heard to cry, and before it be baptised, if there be no laches or default of the baptism in the husband, by contumacy, he shall be tenant by the cortesy : But if such k laches be in the husband from contumacy, some (e) See the preceding note. 91 TENANT BY THE CURTESY. say, he shall not be tenant by the curtesy; tamen quare {/). Co. Litt. 472. If a man seised of lands in fee, as in the right of his wife, be disseised thereof before he hath issue, and afterwards he hath issue, and the wife dies before any re-entry made, fyc. yet he may re-enter and have the land as tenant by the curtesy, fyc. 473. And if there be husband and wife, and they have issue, and the issue die, and afterwards lands in fee-simple descend to the wife, and the husband enters, and the wife dies, he shall be tenant by the curtesy, Sfc. |7n Sheffield 4.7^. And if the husband, before issue had, Hob^Ca make a feoffment upon condition on the part of 414. fo. 338. the feoffee, of land which he holds in fee in right ,„?- i U i* of his wife ; and afterwards he hath issue by her, 297. b.] ... J and the condition is broken, and the wife dies, now the husband may re-enter for the condition broken ; and when he hath re-entered, he shall not hold the same land as tenant by the curtesy ; tamen qucere (g), $c. But the law is contrary if the (/) By 53 Geo. 3. c. 1 27. excommunications are abolished, except upon definitive sentences of spiritual courts ; and then they incur no civil penalty or incapacity whatsoever, save at furthest six months imprisonment. This of course does awav with all idea of such a penalty as mentioned in the text: but had that act never been passed, no person would be found bold enough to attempt su«h an objection at this day. (g) It is apprehended that in this case the husband shall not be tenant by the curtesy ; for his feoffment amounted to a release in law of his right to that estate, and consequently he had no right left in him ; and when by breach of the con- dition his title of entry accrues, and he takes advantage of it, he comes into the estate by his own act, claiming a wrong- ful and defeasible fee under his oun conveyance ;. and, as where there is no right there can be no remitter, this may be TENANT BY THE CURTESY. 91 feoffment had been made by the husband being within age, fyc. mutatis mutandis, fyc. 475. And if the husband and wife are seised of H lands in fee, as in the right of the wife ; and this land is recovered against them by false swearing, and after execution sued thereof they have issue, and the wife dies, now the husband shall have attaint, and when he hath recontinued the land, and avoided the recovery by attaint, he shall hold the land as tenant by the curtesy. The same law A is of a recovery had against the husband and * wife * [92 ] by erroneous process ; mutatis mutandis, 8fc. recovered from him by the heir of the wife. This case is not at all altered by ihe statute 32 Hen. 8. c. '28. s. 6. for the re- entry of the husband puts an end to the discontinuance, and vests the fee in the heir of the wife, even without entry ut videtur, 1 Inst. 336. b. Lord Coke (lb. 31. b.) puts the stronger case of a re-entry by the husband in the life of the wife, and there also says he shall not be tenant by the curtesy; and it is conceived, rightly, although the doctrine appears in direct opposition to Co. Litt. 336. b. and 8 Rep. 43. b. (in Uhittingham's case) where it is said, that in such case the husband's re-entry revests the estate in the wife ; but perhaps by this is only meant that the discontinuance being at an end, she might (even at the common law,) have re-entered upon his death, or her heirs upon her death in his lifetime. It is perhaps unnecessary to remind the reader of the distinc- tion between this case, and those where the husband and wife are jointly seised. .92 TESTAMENTS. CHAPTER VII. Of Testaments. [Viner's Abr. Devise, A. Bacon's Abr. Wills and Testa- ment. Cornyns's Digest, Devise. Preston's Shep. Touchst. chap. Testament.] [Co. Litt. 476. NOW are we to speak of Testaments. All 1 1 1. a. b. & manner f testaments are either testaments written, notes.] or testaments nuncupative : And a testament nuncupative is, when the testator makes his will by words before witnesses. But more properly it is said a testament nuncupative, when the testator languishing, for fear of sudden death, dares not wait for the writing of his testament ; and there- fore prays his curate, and others his neighbours, to bear witness of his last will, and declares by words what his last will is. And such will is as strong as a testament or will in writing and sealed with the seal of the testator (a) ; except in special cases, &c. [Biown v. 477. And although a testament in writing be ikicknlle, nQt sea i ec j ^fa fa sea j f fa testator . yet j t j s Vy. 72, pi. _ ' ■» a.J good : but qucere, if it be good to make freehold or inheritance to pass, Sfc. (b). (a) Nuncupative wills are now regulated by the statute of frauds, 29 Cha. 2. c. 3. s. 19 to 23; and that law placed so many restrictions upon them, that they are now seldom or never heard of. (6) As when Perkins wrote, lands were devisable only bv custom, it seems to follow, that whether sealing was or wa» uot essential to the validity of a devise, depended eutirely TESTAMENTS. 92 478. If a man make a testament, or will, and 2 Hen. 5, afterwards makes another will byword, if this latter 4 g will be proved before the ordinary, and by him put in writing, and sealed with his seal, such latter [Co. Litt. will shall avoid the former will (c), except in special, 112 ' '-" cases. And so always, the latter will and testa- ment shall avoid the former will and testament. 479. And if a man of sound memory make two 44 Ed. 3, testaments, that is to say, one testament in the [Lib l" sixth year of our lord the king that now is, and Assisa, p. another testament in the eighth year of the same j?" U wm king and afterwards the testator laying sick in his death bed, and dumb, a man in the presence of his neighbours delivers both the testaments to the testator, who takes them in his hand, and one of the neighbours asks him to deliver back to them the testament, which he wills shall stand and be his last will, and he delivers back the testament with the former date, and keeps the other by him, now the testament which is re-delivered shall stand, notwithstanding that it hath the former date, and was written before the other testament, tyc. ((/). upon the custom of the place where the lands lay. By the statute of wills, 32 Hen. 8. c. 1. neither signing nor sealing was made necessary to wills of lands ; and now by the statute of frauds they do not require a seal, and whether one be used or not is immaterial. In some old cases, sealing was held equivalent to signing ; and the wills established being sealed, although not signed by the testator; but this doctrine has long been exploded. (c) But now by statute 29 Car, 2. c. 3. s. 22. to effect such revocation, the nuncupative will must be committed to writing in the lifetime of the testator, and read over to and allowed by him ; and this must be proved by three witnesses zX the least. (ri) It is apprehended this case would now be decided the opposite wav, and that whether real estate or personal pro- 92 TESTAMENTS. 480. And although a later will shall make void ^ <) lien. 0, a former will, yet if a man be seised of land in fee, and enfeoff a stranger thereof, and declare his will" upon the livery of seisin made to the stranger, viz. that the feoffee shall be seised to the use of the feoffor for the term of his life, the re- mainder to J. S. in fee, now he cannot alter this will by a later will to the prejudice of cestui que use in the remainder ; because the use is in him in the remainder presently, so that he may sell the * [93] same. But if, in the same case, the * remainder of the use had been to the right heirs of the feoffor then the feoffor might have altered this use by a later will. And if the feoffor had declared his will upon the livery of seisin, that the feoffee should be seised to the use of T. F. for life, remainder to the use of the feoffor for life, or in tail, the re- mainder to the use of a stranger in fee, in that case, the feoffor could not have altered this will by his later will (e). 31 Hen. 6, 481. If a man seised of land in fee enfeoff iiuipana. a stranger thereof to the intent to perform his will, and afterwards the feoffor makes his will, and devises the land to a stranger in fee, in this case, the devisor may alter this will by a later will; because in this case, the devisee shall have the land but by force of the will ; and that cannot perty only were in question, unless the testator actually can- celled the second will ; for otherwise there would appear to be at most nothing more than a verbal revocation of the second will. (e) It is obvious that none of those cases are upon a will properly so called, but upon the declaration of the use of a conveyance inter vivos. TESTAMENTS. 93 take effect but after the death of the devisor. The same law is of land, tenement, rent, or com- mon, $c devisable by the custom used in some places, 8}~c. And also the same law is of all chattels real and personal devised ; mutatis mu- tandis, Sfc. 482. And it is to be known that executors shall 7 Hen. 4, not have an action, as executors, before the tes- j^Ed. 2 tamenfc be proved ; and therefore, if the date of Feoffments, the probate of the testament be more ancient U0, than the date of the making of the testament, the writ shall abate, S;c. 483. And if none of the executors will prove the will, and a devise of a chattel real or personal is made by the will, it seems the devisee hath no remedy to obtain the thing devised, 8fC\ tamen qucere (/"), if he shall have remedy against the administrators, or administrator, if there be any ; and if there be no administrator, qucere, if he shall have remedy against the ordinary, fyc. But this remedy against the ordinary who sequestrates seems but little ; for if he shall have any remedy, it ought to be by suit in the spiritual court. More shall be said of this matter hereafter, c]c. 484. And forasmuch as it is necessary to have the testament proved, something shall be said con- cerning that; viz. by whom the testament ought to be proved, and before whom it ought to be proved, §c. And the testament ought always to be proved by the executors, or by one of them at least. (f) In such a case, administration with the will annexed would now be grantee) to a legatee, or other interested party ; and the ?ame remedies might be had by all persons against such administrator as against an executor. L 93 TESTAMENTS. 485. And therefore if there be three executors, and two of them will not prove the will, nor med- dle with the goods of the deceased, and the other executor proves the will, notwithstanding this refusal by the other two who were made exe- V. 12 Ed. 4, cutors; and although the will be proved by the third executor only, yet the other two executors, and each of them may intermeddle with the goods of the testator, and administer them at what time soever they will ; because when the will is proved, they cannot be put out of the will ; and the same will gives them a title to administer * [94] the goods of the testator, as well as it * gives title 43 Ed. 3, tQ j 1 - m w j 1Q p roves t ne w j]i m so much that not- Liecutors, l (Q. 26.) withstanding they never administered, if he who [Com. Dig. p roves t] ie w j}i w iu bring an action as executor AlMttcmeiit, *■ ... ]■:. 13.J of the same will, it behoveth him to bring the action in all their three names, 8$c. ; but they shall not be charged as executors before they administer. 486. Testaments ought to be proved before the ordinary, except in special places, where the lords have the probate of the testaments of their te- nants before their stewards, or before themselves in their temporal courts, 8fc. And the reason why spiritual men have the proving of testaments is, because it is to be intended that they have better consciences than laymen, and that they have more knowledge what thing is for the profit and benefit of the soul of the testator, than lay- men have ; and that they will look more than laymen that the debts of the deceased be paid and satisfied out of his goods, and that they will TESTAMENTS. 94 see his will performed also so far as his goods will extend, fyc. d 487. But if the goods of the deceased will not extend to satisfy his debts, it shall be well done if the officers of the ordinary take nothing for valuing the goods of the deceased, nor for the probate of his will, nor for registering thereof, nor for any other thing concerning the will, fyc ; e for if they take their fees, by such means the debts of the deceased may not be satisfied and paid, Sfc. 488. And although a man devise a chattel real a * s ^' ' or personal by his will, yet the executors are 107, Devise, bound in law to pay the debts of the deceased l * r before they pay or deliver any legacies. And therefore the common law of the realm is, that the devisees of chattels real or personal cannot enter upon the legacies, nor take them without the assignment or delivery of the executors, or by their assent, or without the assignment delivery or assent of one of them 5 and the reason is, be- cause the soul of the testator shall not be in danger for the nonpayment of his debts, fyc. g 489. And wills proved before the bishop him- 14 Hen. 6, ♦elf of the diocese where the party dies is good, if 22, he had not goods and chattels of the value of 40 s. in any other diocese, for if he had goods and chattels of the value of 40*. in two several dioceses, then it ought to be proved before the reverend lather in God, Thomas Lord Cardinal, Legate a m latere, Archbishop of York, Primate and Chan- cellor of England, or his officer ; or before the reverend father in God, the Archbishop of Catt- le 2 94 TESTAMENTS. terbury or his officers, or before them both, or their officers, Scc.(g). n Hen. 4, ^go. A testament proved before the commis- , a "" ' sary of the bishop is sufficient, c]c. And a testa- 7 Ed. 4, ment proved before the sequestrators of the arch- 195 \ deacon of * such a place, and his seal put thereunto leitaments. ,-•_.. _, ,. , , (14. Q.) is sufficient. For all testaments cannot be proved 3 Ed. 3, before the ordinary himself; and more properly 5< Q ) ' tne P r0Date °f tne Wl ^ belongs to him to whom the sequestration belongs, fyc. 491. A testament proved before any officer of the ordinary deputed for the same is sufficient; but always when the King's court writes to any officer spiritual, they ought to write to him who is immediate officer to the court, which is the bishop himself. 37 lien. 6, 492. And sometimes the party shall be driven ' to shew, how the archdeacon, or such other officer had power to prove the will, or to commit the administration ; and therefore if in an action of debt brought against administrators, the plaintiff declare that the Bishop of Winchester committed (»■) If a metropolitan administration be granted of the effects of one who died possessed of bona notubilia in only one diocese, the administration is not void, but only voidable by sentence ; Vere and Jefferies, East 32, Eliz. 5, Rep. 30, (in Prince's case) although this has been denied ; see Cro. Eliz. (1.) 457.) but if administration be granted by a bishop or other ordinary, where the intestate had bona notabilia in dif- ferent dioceses, this administration is altogether void ; (ib.) on this account it is generally advisable to take out adminis- tration from the court of one of the archbishops. And see upon this point Comyns' Digest, Administrator, B. 3, and the cases there referred to. . For a sketch of the history of Administration to the effects of intestates, see 4 Bl. Coram, ch. 32. and Toller's Law of Executors, ch. 3, s. l. Adknimitr.j TESTAMENTS. 95 the administration to them, fyc. And the defend- ant plead that the testator died intestate at D. $c. and that the official of the archdeacon of the same place did commit the administration to them, without this, that the bishop, &,-c did commit the administration to them. Now the defendants ought to shew, how the archdeacon had power to commit administration, as by prescription, or by composition, or otherwise, fyc. 493. And a testament proved is of so great 36 Hen. 6, force, that a man shall not have a direct traverse , /L.'IJ*? ' thereunto, nor to letters of administration ; but the 44 Ed. 3, defendant may say against the testament, that ist 'W e "> the testator made not the plaintiff his execu- 1 ft Ed. 2, tor, 8fC, And some have said, that because the Testament, writ ought to agree with the testament, the testament is traversable ; but that is a fallacy, for a scire facias to do execution ought to agree with the note of the fine, in the manner, Sfc. ; and yet the fine is not traversable directly, §c. (h), If a Supra, fo. testament bear date in Caen in Normandy, and 2 5- ** 2 Ed. 2, o^- be proved in England, it is sufficient for the exe- ligation, 15. cutor to bring an action thereupon. 493. And the reason why the testament is not traversable is, because then it would be tried by the certificate of the ordinary, and he would not certify contrary to that which is shewed to the court under his seal or under the seal of his officer deputed to the same, Sfc. 494. But if an obligation be dated in Caen in Normandy, neither the obligee, nor his executor shall have an action upon the same, &;c. (/1) Vide Addendum. 95 DEVISES. CHAPTER VIIL Of Devises. [Viner's Abr. Devise. Bacon's Abr. Wills and TtstamenU. Comyns's Dig. Devise. Preston's Sliepp. Touchst. chap. Testament.] 495. JN OW we are to speak of devises. And first is to be shewn what persons may make de- vises ; and then to what persons a devise may be made, then what things may be devised, and when no estate is limited in the devise of the land, tenement, or rent, c^c. what estate the devisee shall have, and when the devise shall be deter- mined as to him in the remainder, by the act of him who hath, or shall have by the devise the [gd] particular estate, * upon which the remainder is dependant ; and then how the devisees shall obtain the things devised, fyc. 496. All persons who may make testaments or wills, may make a devise of the thing of which they make a testament and will, and not of other things (a), except in special cases ; and therefore (a) When Perkins wrote this definition excluded land*. Whether lands were or were not devisable in this country before the Conquest, is a disputed point among antiquarians. Devises of land were evidently inconsistent with the genius of the feudal system, and they therefore were not allowed by the common law. However, by different statutes, all lands have now been made disposable by will, i. c. freehold estates of inheritance in fee simple, by 32 Hen. 8, c. 1 ; 34 & 35 Hen. 8, c. 5, and 29 Car. 2, c. 3 ; estates pour autre vie by 29 Car. 2, c. 3, s. 12 ; and copyhold estates by 55 Geo. 3, c. 122. On the history of this branch of the law, see 2 B!, Comm. c. 23; and Butl. Co. Litt. 111, b.n. 1. DEVISES. 96 if a parson of a church be seised of lands in fee in his own right, and enfeoff a stranger of the same land to the use of him (the feoffor) and his heirs ; now he, viz. the feoffor, may make a testament and devise of this use and of his proper goods and chattels ; but he cannot make a testament or devise of the use of his glebe lands or tenements? or other things which he hath in right of his church, Sfc. 497. An abbot or prior of a monastery cannot make a devise of lands, or tenements devisable, nor of a use of lands, tenements, Sfc. Nor of 19 Hen. 6, goods, or chattels, SfC. But if an abbot or prior lament, be created a bishop, 8fc. and by the bulls of his creation, our holy father the Pope dispenses with him, and grants unto him to hold his abbey, and also the bishoprick ; if such bishop and abbot purchase lands devisable in fee, he may make a will and devise of them ; and if he purchase lands not devisable in fee, and thereof enfeoff a stranger to his use, he may make a will and devise of this use, S>c. And of all his proper goods and chattels he may make a will and de- vise, 8fc. ; but he cannot make a testament or devise of lands or tenements devisable which he holds in right of his bishoprick, or in right of his abbey ; nor of a use of lands or tenements which he holds in right of his bishoprick, or in right of the abbey; nor of goods or chattels which he hath in right of the abbey, $c. causa patet. 498. And a dean, or master of a hospital, or guardian of a house, 8pc. cannot make a testa- ment, or a devise of lands or tenements, fyc. or » L4 96 DEVISES, of a use of lands or tenements, or of goods OY chattels which they haVe in the right of their church or house. The same law is of mayor and commonalty, mutatis mutandis. 499. And therefore if a dean and chapter, or, fyc. recover debt or annuity, or other thing in a court of record as in the right of their church or house, and die before execution sued, &,-c, now his successor may have a scire facias, §c, to exe- cute the judgment, §c. But if they have lands or tenements devisable, fyc, or a use of lands or tenements, 8jc, or goods or chattels in their own right, they may make a will, and devise of them, 8fc. (Co.Litt. 500. And a devise by a jointenant of land de- 1 5 ' a * "•' visable, which he holds in fee at his death jointly with a stranger, is not good ; the same law is of a use in jointure, Sfc. But if such devisor doth survive all his joint companions, then such devise is good (6), as is well shewn by my Master Lit- tleton, in his third book, in the chapter of Join- tenants, and also in Natura Brevium, with * L97J the additions, upon the writ of ex gravi * querela, fyc. where are put and shewn many good cases concerning devises, §c. 25Ed.3,7i, 501. If a feme covert make a testament of the Devise, 28. g 00( j s f her husband, and die, and her executor (6) This is to be understood only of a will made by the testator after the deaths of all his companions, and when in fact he has become a sole tenant ; for the will of a joint te- nant is void as to every part of the land, although the join- tenancy be afterwards severed or determined before his death, Swift d. Neale v. Roberts, 3 Burr. 1488 ; 1 Black. 478. Lit- tleton's only notice of a devise by a joint tenant is in s. 287, and does not state this point. DEVISES. 97 proves the will, 8?c. ; and after the probate of the will, the husband delivers to the executors the goods devised, now he hath made the testament good, although he was not privy to the making thereof; and yet a colourable argument may be made that it shall not be good, by this delivery B of the goods by the husband, §c, for in so much as the wife had not leave of her husband to make the testament, it is void, fyc, but it cannot be said void, inasmuch as it is proved. And also it shall be intended, by the delivery of the goods by the husband to the executors of the wife, according ; to the testament, that he did at first assent to the making of the testament ; and such leave or as- cent is sufficient by words, 8?c. 502. And a married woman may make a testa- 5 Ed. 2, ment of goods which she hath as executrix to Dev,fe > 2 4- . 12 Hen. 7, another without the leave of her husband, §c. ; 24, per as appears in the chapter of Grants. And jSj^J**; a monk who is executor, by the leave of his sove- Executors, reign, may make a testament of the goods which 2 4 2 -] he hath as executor, S)-c, and divers other persons 3 may make testaments, as more fully appeareth in the chapter of Grants; mutatis mutandis, Sfc. 503. And an infant of the age of fourteen years may make a testament (c), and it shall be good for all his goods aud chattels ; because for such E things the executors are accountable before the (c) " Fourteen years" is adopted here on the authority of the Hargrove MS. ; in most, if not in all, the former editions Jour is inserted instead of fourteen: but this lias been sup- posed, and in all probability was an error of the press. On the. earliest age at which a will may be made of personal estate, see Co. Litt. 89, b. and Mr. llargrave's valuable note (6) there. L R 97 DEVISES, spiritual judge, viz. the ordinary ; so that it can- not be intended but that they will be expended for the benefit and profit of the soul of the infant, 8$c. 504. But of freehold or inheritance devisable, or a use of freehold or inheritance, a devise made by an infant is not good ; because they are at the common law ; for the executors are not to inter- F meddle therewith, and the ordinary cannot de- mand an account of them, Sfc. But if there be a custom that all lands and tenements within such a precinct, fyc. are devisable by ail manner of persons which are of the age of fifteen years, or above such age, fyc, a devise made of such lands g or tenements by one of such age is good. But if a man be seised of such lands and tenements in fee, and enfeoff a stranger thereof to the use of the feoffor and his heirs, and die, and his heir being of the age of fifteen years, makes his will, and devises the land, of which the use is in him, to a stranger in fee, and dies, this devise is not good (d), 8fc. 505. Now it is to be shewn to what persons a m devise may be made. And as to that, know, that a devise may be made to all persons to whom a grant may be made, mutatis mutandis, except in special cases. And the devise ought to be good (d) For it could not pass the legal estate in the land, that (before the statute of uses) remaining vested in the stranger ; and the use was devisable only by the rules established in equity ; since the custom must have existed before the inven- tion of uses, and being taken strictly, could not be extended to them. This custom seems to have been destroyed by the general words of 34 & 35 Hen. 8. c. 5. s 14, at least no in- stance of its exercise has been observed since : and Shep. T. 403, in favour of it, cites only Perkins and some earlier au- thorities. DEVISES. f 97 and effectual at the time of the death of the de- visor, except in special cases, * or otherwise it * [98] shall not be good. As put the case : A man seised of land devisable, devises it to the priests of a college, or of a chauntry, and there is not any such college or chauntry at the time of the death of the devisor, and afterwards such a col- lege or chauntry is made, yet the devise is void ; because devisees are purchasers ; and when a man takes lands or tenements by purchase, he ought to be of ability to take the same when they fall to him by the purchase ; or otherwise he shall not f.4ntf,s.$2, have the same, fyc, as appears in the chapter < >f* c 'J Grants, fyc. 506. If a man seised in fee of land devisable, 9 Hen ff, devise it to his wife for the term of her life, re- wc ' mainder to J. his son and the heirs male of his body begotten ; and for default of such issue, the remainder to the next heir male of the donor and his heirs male of his body begotten, and die, and his wife enters by force of the devise, and afterwards J. the son dieth without issue mr 1 ? ^ (> his body living, the said wife being tenant for term of her life, and afterwards she dies, and then one P. D. and A. his wife enter into the land, as in the right of A. the wife, as cousin and heir to the donor, and have issue a son, and the hus- band and wife by deed inrolled enfeoff a stranger of the land in fee, and their said son, as next heir male, enters into the land, his entry is not lawful ; causa patet, fyc. 507. And a man may devise by his will, that 49 Ed. 3. his executor, or the executors of his executor, may 1( f h™% h 6 Drmc, 3. 98 DEVISES, 9 Hen. 6, sell his lands, 8fc, and the same is good, yet the K Marten. ' P executors of the executor were not known at the time of the death of the devisor, hut shall he in esse and known at the time of the death of the executor of the devisor. See divers cases con' cerning this matter in the chapter of Grants ; mutatis mutandis, fyc. 508. And if a man seised in fee of land devis- able have two sons and also one daughter, who hath issue two daughters, and he devises his land to a stranger for life, remainder to his second son for life, the remainder in fee to the next of blood r of his children ; the devisor dies, and the mother of the two daughters dies, the stranger dies, the eldest son dies without issue, the second son enters and enfeoffs a stranger with warranty, upon whom the two daughters enter, and the feoffee puts them out, and they bring an assize, the assize will well lie, Sfc. And it is to be known 21 Ric. 2, tnat if a man jj e se ; se( j f i an d devisable in fee, g Devwt, 27. he may devise it to his executors for years, for life, in tail, or in fee, &?c. 509. If a man seised in fee of land devisable, devise it to J. S. for life, the remainder Ecclesice Sti. Andrece in Holborn, fyc. and die, it seems this remainder is good by way of devise (e) ; but otherwise would it be by way of grant ; as it appears in the chapter of Grants. [Ilarg. Co. 510. But the commonalty of a company which H Litt. 112. b. 2-J (c) This case occurred 21 Ric. 2, and is stated Plowd. R. 523 ; the. devise was held good, as to the parson of the church : but in that view it would now be void under the statutes of mortmain. DEVrsEs. 98 is not incorporated by the King's charter (f) to purchase, Sf-c. cannot take by a devise. And, therefore, if a man seised in fee of land devisable, devise it to A. for life to find a chaplain to sing for his soul in the church of, eye. the* remainder * [99 J to two of the best men of the sruild of the brother- 49 ^ d - 3> . Dcvue, 7. hood of the Whittawers in London, to find a 49 Li!),A^i, chaplain, fyc, now if they, viz. the Whittawers be 3« not incorporated by the King's charter, and ena- bled to purchase, the remainder is void. And know, that the supreme officers of the fraternity, corporation, or guild, are taken in law for the best men of the same fraternity, corporation, or guild, eye. See divers cases concerning this matter in the chapter of Grants ; mutatis mutandis, fyc. ,511. Now is to be shown what things may be devised. And as to that, know, that all manner of chattels, real and personal, may be devised ; and the freehold and inheritance of lands and tenements, fyc. devisable, or in use, may be de- vised, except in special cases. And as to chattels, real and personal, know, all chattels, real and per- sonal, which the executors shall have, may be devised, except in special cases, S,-c. 512. And therefore, if a man seised of land in fee, or in fee-tail, sow it, and devise the corn growing upon the land at the time of his death to a stranger, it is a good devise, although the land is not devisable nor in use, fyc. But if the de- visor had devised the trees growing upon the land at the time of his death, this devise, as to the (J) Or by an Act of Parliament, by which corporations have been frequently created in modern time?. Vvit 1 Bl C'oinm. 473-4. 99 DEVISES. 7 Ed- 3, trees, had been void ; because the heir of the de- b r ' 1 ^' visor shall have them, and not the executors, fyc. 513. But if a man seised of land in fee, as in right of his wife, lease it for years to a stranger, and the lessee sows it, and afterwards the wife dies, the corn not being ripe, in this case, the lessee may devise the corn growing upon the land ; and yet his estate was certain and is deter- (Co. Litt. mined : but a thing uncertain was the cause of ] S3 * V the determination of his estate, lease the same lands to a stranger for < T. Tns. 86. years, and the lessor dies within the term of years, 4oEd.3,pl. r . . . „ . . ■. LI. 10. in * ms case > " tne corn were growing upon the lands, and not ripe at the time of the death of the lessor, the lessee may well devise the same, P- &• consideration, fyc. the feoffee is seised to the use of the feoffor and his heirs ; for the law in this case dofch not make any consideration, for the feoffee shall not hold of the feoffor, S,c. but he it is now generally considered clear, that common in grins cannot be conveyed to uses; since the use of it cannot be severed from the possession, for ipso usu consumitur ; it follows that there can be no resulting use in a case like that put in the text. Mr. Sanders, however, appears to entertain a dif- ferent opinion upon this point ; vide -1 band, on Uses, 27-8. (Ed. 1824.) (i) Sec the preceding note. 103 DEVISES, shall hold of him of whom his feoffor held, by force of the statute of Quia emptores te.rrarum. More shall be said of this matter in the chapter of Reservations, $c. 534. And if a man at this day is, or after the statute of Westminster 2. cap. 1. De donis con- ditionalibus, and before the statute Quia emp~ tores terrarum was, seised of lands in fee, and give the same in tail to a stranger, without any consideration, §c. tne donee is seised to his own use ; for the law maketh a consideration, by way of tenure ; patet how. 535. And if a man seised of land, leases it for life, without any consideration, S?c. the lessee is seised to his own use ; and yet if nothing be re- served, he shall do only fealty to his lessor and his heirs, or to his grantee of the reversion, fyc. 536. And if a lease for years be made without any considerRion, the lessee is seised to his own use. And yet according to the opinion of divers H. 10 Hen. men, lessee for years shall not do fealty, fyc. (k). ' °" " 4 " But the reason in this case is, because the rever- sion of the same thing remains in the lessor; so that the law cannct intend the intent of the lessor was, that the lessee should be seised to his use, if he hath not made express mention upon the lease. And also he may devise his land for a term of years, although it be not devisable, nor in use, Sfc. (I). (k) But Littleton s. 132, and Lord Coke, 1 Inst. 67, b. 93, b. are express, that ten for years shall do fealty ; and *ee Hargrave's note (2.) Gj. Litt. 67. b. (0 Fr. text, " et auxi il poit deviser sa terre a terme d'ans, nient nbstant que U ne soit devisable nt en v*e, &c." DEVISES. 103 537. And if a man at this day be seised of a seignory, rent, or common in gross, which is certain, in fee, and grants the same to a stranger in tail, for life or years, without any considera- tion, they are seised thereof to their own use ; causa patet. But in all the cases of feoffments, gifts, grants, or leases, if a use be expressed in [Sed vide the feoffment, gift, grant, or lease, Sfc. the feoffees, * %"£¥*** donees, grantees, or lesses, shall be seised to the use expressed, if it be not against law. As put the case : It is expressed to the use of a monk professed, who is not sovereign of the house, Sfc. So, as is aforesaid, if a devise be made of free- hold or inheritance, it behoveth that the free- hold or inheritance be devisable or in use, other- wise the devise is void. 538. And therefore, if a man seised of land, rent or common, or, SfC. in fee, not devisable, devise it to a stranger in fee, in tail, or for life, and die, the devise is void, Sfc. But if a man be seised in fee of lands,* tenements, rents, com- * [104] mon, or, Sfc. devisable, or if a man be seised in fee of lands, tenements, rent, or common, or, Sfc. not devisable, and thereof enfeoffs, or grants the same to a stranger in fee, to the use of the feoffor, or grantor, and his heirs ; if he, viz. the feoffor, or grantor, devise the same lands, tene- ments, rent, common, or, Sfc. in fee, in tail, for life, or for term of another man's life, it is a good devise, fyc. 539. If husband and wife be joint purchasers, 27 Lib. Ass. to them and the heirs of the husband, of lands, P 1 - 6o - tenements, or, Sfc. derisable, and the husband 104 DEVISES, devises this fee simple after the death of him and his wife to a stranger, by his will, Sfc. it is a good devise, fyc. 17 Lib. Ass. 540. If lands or, SfC. be devised to the husband Devise, 13. anc j •£ J n tail, the remainder to the right heirs- M. 34 Hen. ' & 6, Dense, 4. of the husband, and the devisor dies, and the husband and wife enter, fyc. and the husband devises this fee simple to his wife, and dieth, it is a good devise, Sfc. Know that the reversion of lands or tenements devisable shall pass by the name terrarum seu tenementorum. fyc. See of this, when one thing shall pass by the name of another, and when one thing shall pass as parcel of another, and divers other good matters con- cerning devises, in the chapter of Grants ; mu- tatis mutandis, fyc. 38 Ed. 3, 541. And if a man seised of land devisable in 11 1« ong, ^ ee ^ w jji s ^ ^jg testament, that his executors shall sell the same land and distribute the profits there- An. 39 Lib. of for his soul, and the devisor dies; now the in- heritance shall descend to the heir, and continue in him until the executors sell, and then they may enter, 8f& and thereof enfeoff the vendee according to the sale, S,-c. 542. But if lands devisable are devised to the executors to sell, §c. in this case the executors, after the death of the devisor, may enter into the lands, fyc, because they were devised to them, Sfc. 543. But if a man tender unto them money for 39 Lib. Ass. the lands, but not so much as the lands are worth, p " 3 ' and they refuse it, to the end that they may sell the lands dearer, and for two years after take DEVISES. 104 the profits of the lands to their own use, the heir may enter and put out the executors ; causa patei (m). 544. But if a man seised of lands not devisable, enfeoff a stranger thereof to the use of himself « (the feoffor) and his heirs, and afterwards devises r. 9 Hen. 7, the same land to his executors to sell, and dies ; ^. a J- , in this case, the executors cannot enter into the lands, and continue possession thereof, because they have but the use of the land by this devise, H but they may enter and enfeoff their vendee, %c. by force of the statute of 1 R. 3. cap. 2. And so may every devisee of land in use do, fyc. And also a gift, grant, release, lease, and confirmation, made by cestuy que use, fyc. are good and effectual by force of the said statute, vide the Stat. Sfc. But a devise made by cestui que use in tail is a void; so is a devise made by tenant in tail • of * [105] lands devisable, foe. 545. If a man make his will, and makes two p. ^ Ed. 3, executors, and wills that his executors shall sell, D evite > 8 - Sfc. and dies ; and one of them will not inter- meddle, and the other executor takes the admi- nistration upon him, and pays the debts, fyc, now a sale made by him alone is good (n) ; and if both (m) On the law of this and the preceding section, and the effect of such a devise at this da^ ; see Litt. 383. ; Co Litt. 235. b. 236. a. ; and Mr. Margrave's note (a.) ; Co. Litt. 1 12. b. (;i) Although the author treats this point as clear, it uun considered doubtful at the common law, and therefore the statute 21 Hen. 8, c. 4, was made to enable part of the execu- tors to sell. His next position, that pari of those who have proved may sell, is apprehended to be contrary to the law, both before and since the statute ; and if so, the concluding quwre must be solved by deciding that neither of the sale* would be good ; vide the statute. The subject of this section M 105 DEVISES, the executors take upon them, 8$c. and one of them will not sell, then the sale by the other exe- cutor alone is good ; but if one of the executors St. 21 IJen. sell to one man, and the other executor sell to •yjLib" 4ss anotner > it i s sa ^ by some, that the sale of him Exec. 116. which is most advantageous for the testator shall be good; but others say, that the first sale shall be good, and the other void, whether it be more beneficial for the testator or not. Ideo qucerc («). 546. But if the will be, that the executors shall [Sec. 553, jointly sell, and one of them sells to one man, and j>ost.\ j.j le t ner se u s to another man, and afterwards both the executors join in a sale to a third per- son ; in this case the last sale is good, and the other sales are not good. [Vide Pitt 547« And if a man will, that his land shall be v. Pelham, so \^ f or t i ie p a y me nt of his debts, and doth not fo. 25.] ' express by whom, it shall be sold by his execu- T.i5Hen,7, tors, because the land shall be sold for the pay- fo.12. ment of his debts, and the payment of debts belongs to the executors, Sfc. But if a man will that his land shall be sold, and doth not say by ■will be found fully discussed ; Co. Litt. 112, b. 113, a. and Mr. Hargrave'.s note (2.) there ; Sugden on Powers, ch. 2, s. 2. (p. 162-167. 3d ed.); and Sugden s Gilbert on Uses, 128, and note. It is there remarked that the statute " only applies where one of the Executors refuses to join, and even ■where that is the case a cautious purchaser will not accept a conveyance from one, because the other may have pre- viously sold to some other person." But it is submitted that both in letter and spirit the statute applies only where one or more appointed executors refuses that office, and that all •who do prove the will must join in the sale. IIoweTer, a difference of opinion seems to exist upon this poin'. ; vide 2 Prest. Abstr. 253. (n) See the preceding note. DEVISES. 105 whom, nor for what, it seems to be void ; tamen qucere{o) the opinion of other men. 548. If a man will that A. and B., his execu- ]\I. 19 Heu. tors, shall sell, fyc. and they refuse before the 8 > fo - 9* ordinary, yet it seems they may sell, because they T.i5Hen7, are certainly named ; so that it appears the will of fo - 12, the testator is, that they shall sell whether they refuse or not (p). But otherwise it shall be (as it seems) if he will, that his executors shall sell, without expressing their names, and they all re- fuse before the ordinary, they cannot sell. 549. If a man make J. S. his executor, and M. 19 Hen. will that a monk shall sell, fyc. and distribute the 6 > fo - 2 5* (0) Taking the case as here staled, i. e. that the purpose of the sale could not be collected from the will, such a direc- tion would be merely void ; for if a sale were made the pro- duce would belong to l be heirs, as is the general (though not universal) rule as to the surplus, wiiere a sale is directed to bo made lor payment of debts and legacies. As connected with t he points of the text, see _the late cases of Bcntham v. Wilt- shire, 4 Madd. 44, and Patten v. Randall, 1 Jac. & W. 189. (/>) In modem practice it is considered clear that in such a case the nominees may sell, for the power is driven to them personally, and not as executors. l)ut on the other case put in this section the law is not yet ascertained ; it seems to turn upon the question, whether such a devise passes an interest or merely an authority? Mr. Hargrave (Co. Litt. 113, a. n. 2.) comes to no conclusion upon the point. Mr. Preston, (2 Abstr. 264.) says the executors may sell, but in the latter case cited by him in support of the proposition (Yates v. CompUui, 2 1\ Wins. 309.) it was held the other way. Mr. Sugden (on Powers, 172, 3d cd.) thinks with Mr. Preston on the authority of the case in the year books cited by Per- kins, (stated in Mr. Sugden's appendix,) but in which there were conflicting opinions, and a contrary judgment was said to have been given ; and of Keatcs v. burton, 14 Ves. jun. 434. but which, as it is read by the tditor.also opposes the opinion. The weight of authority is certainly with Perkins, und under these circumstances of course no one would accept a title from the (intended) executors without the sanction of a court. M 2 105 DEVISES. profits thereof for his soul, the monk is executor to this purpose. If a man will that his executors shall sell, and distribute the profits coming thereof for his soul, and they prove the will, and make X. 15 Hen. 7, their executors, and die before they sell, their to. 11. executors shall sell. But if they do not make [1 oilers executors, their administrators shall not sell, for Executors, '„'.*. 68. 114 — want of privity, for the sale is a thing of trust, SfC. JI 5-] 550. If a man will that his executors shall sell, now if they all die but one before any sale made by them, then he who survives may sell (q). If a man will that J. his heir shall sell, if J. die without selling, his heir shall not sell the land. 551. If cestui que use will that his feoffees shall sell, they ought to sell jointly by reason of their joint possession, #c. But if all the feoffees but one die before any sale made by them, then he who survives may sell, because the possession of the whole is in him, 8$c. * t 10 ^] 55 2 - If a man will that * J. S. his now execu- M.^19 Hen. tQr g ] ia ji ge ji his lan(Jj the executors f x S. shall not sell the same, because it appears by the words of the will that no other shall sell ; and always he shall sell in whom the confidence is reposed. And therefore if a man will that J. S. mayor of London shall sell, Afc. and J. S. is mayor of Lon- don at the time, and before the sale another man is chosen mayor, in this case J. S. shall sell, and not the new mayor. And so it is in such like cases, Sfc. (q) Modern opinions also incline strongly to this doctrine, but the point is not settled. See upon it the writers and passages cited in the note upon s. 545. ante. DEVISES. 106 553. If a man will that his executors and his [Sec. 546. feoffees shall sell, and the executors sell without a " the feoffees to one man, and the feoffees without the executors sell to another man, and afterwards the executors and the feoffees sell to a third man ; in this case the last sale is good, and the other two sales are not good, SfC. 554. And it is to be known that when (from circumstances) the land cannot be sold, the heir shall have it. As put the case : a man seised of land devisable, devises by his will that his land shall be sold by his executors, and dies ; and all the executors die intestate before any sale made by them, or any of them, in such case the heir shall keep the land (;-). And if cestui que use of T.isHen.y, land in fee will that /. S. now his executor shall j " 1Q H en % sell, Sj-c, and J. S. dies before any sale made by fo. 10. him, then the use is in the heir to keep to him and his heir3 for ever, fyc. 555- Now is to be shown when no estate is limited to the devisee in the testament or will what estate the devisee shall have. And as to that, know, that always when no estate is limited, the devisee shall have an estate according to the intent of the devisor, which intent shall be expounded by the words in the will, except in special cases. 556. And therefore, if cestui que use of land, or, Sfc. in fee, or a man seised of land, or, Sfc. devisable in fee, devise the land by his will, Sfc. to J. S. Now J. S. shall have the same for his (r) This is true as to the legal estate; but now equity would convert the heir into a trustee, and compel hiin to perform the uusts annexed to the deviae. M 3 106 DEVISES. life, because the intent of the testator cannot be otherwise taken by the said words. M.a2 Ed. 3, 55 y. If l an( is be devised to J. S. to have and Devise, 20. 111 1 • • , • 11 [Litt. 4.580. t° n °l" *° mm ln perpetuum, it seems by these Co. Litt. words he shall have an estate but for his life ; for in perpetuum cannot extend further than to the M. 34 Hen. devisee, because there are not more persons named, <* Spc. And the life of a man in this world, is said as to him in perpetuum, S,-c. tatnen qucere (r). If the words of the devise were to hold, $?c. unto the devisee in fee, without saying any more, the devisee hath an estate of inheritance in fee, SfC. If lands be devised to J. S. to have and to hold to him and his assigns, by these words the devisee shall have fee (s) ; the same law is, if it be devised to him and his assigns in perpetuum, See. H 558. If a man hath a lease for years, and de- vises by his will, that J. his son shall have this lease, viz. the residue of the years to him and his heirs, and the devisor dies, and J. hath the land leased which was devised to him, by the assign- * [107"] raent > assent, or livery * of the executors, (as he A ought to have) and makes his executors, and dies within the term ; it is said the heir of J. shall have the residue of the years, and not the executors, because the possession thereof continued in the devisee unaltered, and the will of the devisor is, that his heir shall have it, $c. ; an d also because the word (heir) in this case shall be taken as (r) These words in perpetuum, or for ever, pass the lee simple; Chamberlaine v. Turner, Cro. Car. 129 ; Co. Litt. 9, h. (s) This is not law : the devisee takes an estate for life only, for there appears no intention to pass more. Co. Liu. 9. b. — 2 Prest. on Estates, 78. DEVISES. 107 a name of purchase, so that if the term continue at the time of the death of J. who is the devisee, then his heir shall have the residue of the term by way of remainder, by force of the devise, <$-c. (t). 55g. But if a man lease land to me for years, [Iitt.s.740. to have and to hold to me and my heirs' during „gg a i" the years, and I make my executors, and the within the term, now my executors shall have the residue of the years, and not my heir; causa patet. And in the principal case, if J. who was the devisee had granted the whole term to a stranger, and afterwards had died within the term, it is said by some that his heir should not have had any remedy. And by the like reason they say, that the executors of J. shall have the residue of the term, and not his heir : but although the law be so, yet that does not prove that the heir of J. shall not have the residue of the term ; for if land devisable be devised to me and my heirs, fyc. and I enter and sell it to a stranger, my heir hath no remedy notwithstanding the devise; and yet if I do not sell, or alien the same, Sfc. but continue the possession thereof according to the devise, to the time of my death, my heir shall have it according to the devise. ,560. And if a man hath a term of years in M.7Hen.6, land, or, 8fC. in right of his wife, and he grant the °* whole term to a stranger, and die within the term, his wife hath no remedy to have the residue of the term ; but if the husband had not granted the term to a stranger, but continued in possession (f) It is now perfectly clear that the residue of the term would go to the executors of the devisee and not to his heir. M 4 107 DEVISES, to the time of his death, and had died within the term, his wife should have had the residue of the years, Sf-c. 561. If a man seised in fee of white acre and black acre devisable, devise white acre to J. S. to have and to hold to him and the heirs of his body begotten, and black acre to T. K. to have and to hold in the same manner and form as J. S. holds white acre ; by these words T. K. shall have an estate tail in black acre ; and the reason is, because the will and intent of the donor shall be always observed ; see divers cases con- cerning this matter in the chapters of Grants and Faits ; mutatis mutandis, £$c. 562. And so as it is said, the will of the de- visor shall always be observed, if it be not im- M. 34 Hen. possible or much against the law, or in other Littleton special cases ; insomuch, that if a man seised of fs. 585.] i anc i devisable, lease it to a stranger for life, and afterwards by his will devises the reversion to a stranger in fee, and dies, it is a good devise with" out attornment ; the same law is of a rent devi- sable, fyc. 563. If a man seised of land devisable in fee, deviseth it to J. S. clerk, upon such condition that he shall be a chaplain, and sing for the soul * [108] of the devisor all his life, and that* after his de- p? ' ' ss ' cease the land shall remain to T. S. mayor of S. Auke,nBi. and his successors, to find a perpetual chaplain to sing for the soul of the devisor ; and the de- visor dies, and J. S. being of the age of twenty- four years enters and holds the land for six years, and is not a chaplain, now the heir of the devisor DEVISES. 108 may enter for the condition broken ; and yet the remainder shall not be defeated, but shall take effect after the death of the devisee for life; tamen u queer e (u). 564. But if there be lessee for life, the re* mainder to a stranger in fee by deed indented, upon condition that the lessee shall pay yearly ten shillings at the feast of Easter to the lessor and his heirs, and after the condition is broken, for which the lessor enters, now by this entry the remainder is defeated ; because it was all by one deed, and the condition depended upon the whole tQ have an( j tQ ho ]j tQ t j iem an( j the heirs of T. K. ; and J. S. surrenders his estate to T. K. it is a void surrender ; although J. S. had but the freehold, and T. K. had a fee expectant to be executed in possession immediately after the death of J. S. And the reason is, because T. K. had a joint possession in the freehold with H J. S. and every jointenant is seised per mie et per tout, or of the whole ; so that the surrender cannot be the cause of his having the possession of any part of the land ; and also his estate can- * [113] not merge or drown in the estate of T. K. * for a each of them hath an estate in the freehold in possession per mie et per tout, or through the whole land, Sfc. 587. If J. S., T. K. and D. C. be joint feoffees of lands, to have and to hold to them, and the Surrender, B. pi. 4. and post s. 598.) Tenant in fee to hi s lord, (ib. pi. 1, and G. pi. 33.) nor the tenant in ajtrcecipe quod rtddat to the demandant (il>. D. pi. 2.) ; these cases occur in the year books, and had previously been held the other ■way. Those cases appear founded upon principle ; and be- sides, a surrender vests the freehold in the surrenderee imme- diately, without livery of seisin or entry (ib. F. pi. 33 ; Co. Litt. 266. b.) ; and it is impossible to consider this ellect to follow from a bare agreement between the tenant of the free- hold, and one having a mere ri^ht of action or even of entry. It is therefore clear, that in the case put in the text, the. surrender could not be made ; the lord's right 10 have .i cessavit, would not vary the relation between him and his tenant; and if the action of cessavit were pending (as stated in Com. Dig. Surrender, D.) the conclusion must be the «ame. SURRENDERS. 113 heirs of T. K. and afterwards J. S. releases all his right to D. C. and afterwards D. C. surren- ders to T. K. fyc. it' is a good surrender for the third part of the land, Sfc. (c). 588. If a lease for life be made of land, re- B mainder to a stranger for life, remainder over to M. 1 4 Hen. another stranger in tail, and the lessee surrenders "'' 4 " to him in the remainder in tail, or to his lessor who hath the fee in reversion, living him in the remainder for life, this surrender is void, to take effect as a surrender ; because he to whom the c surrender is made, hath not the immediate re- mainder to the estate of him that makes the sur- render. But if he who made the surrender had had but an estate for years, and in the surrender there had been words which amounted to a grant of his estate, then the surrender should have taken effect by way of grant of his estate, fyc. 589. If a lease for life be of land, the remainder to a stranger for years, and the lessee for life sur- 3> renders his estate to him in remainder for years, 21. Hen. 7, it cannot take effect as a surrender; because an J 3- estate for life cannot merge or drown in an estate for years. 590. If donee in tail of a rent, or $c. surren- der his estate to his donor who hath the reversion in fee of the land, it is a void surrender : but if lessee for life be of land, the remainder to a stranger for life, and the lessee surrenders to him in the remainder, it is a good surrender ; for he jr. to whom the surrender is made, hath an estate (c) That is of the one-third which J. S. released to D. C, because he holds that in common with T. K. and not jointly. 113 SURRENDERS, for his own life in remainder ; and an estate for a man's own life is a higher estate of freehold, as to him, than an estate for the life of another man is. In the same manner as it is of land shall it be of all rents, commons, corodies, 8fc. mutatis mutandis, 8fC. 591. And if J. S. be seised of the manor of Dale in fee, and grant a rent issuing out of the same manor, or a common, or any other thing in fee; now if the grantee surrender the deed by which the rent, or, S?c. was granted to him, either to his grantor, or any other person tenant of the same manor, notwithstanding that the tenant of the manor be but jointly seised with others of the manor ; and notwithstanding that he hath but an estate for years in the same manor in remainder : by the surrender of this deed to him, the rent, or, Sfc. is determined and extinct (c). 592. But if the grantee recite by another deed, how a rent-charge was granted to him, and recit- ing in the same deed all the effect of the grant, grants the rent to the lessee for life of the manor, to have and perceive to him and his heirs, and (c) In many old cases before the statute of frauds, it is held, as here by Perkins, that the delivery up of the deed amounts to a surrender; but there are perhaps as many de- cisions to be found the other way. And Lord Coke (1 Inst. 338, a.) lays it down as clear, that of things that lie in grant and cannot commence without deed, the estate cannot be surrendered without deed ; in Woodward v. Aston, a8, Ch. 2, (2 Vent. 297.) probably the last case upon this subject at the common law, it was held, that the delivery of the deed was no surrender, but the grantor might sue for his rent if he could recover his deed again ; for a thing in grant must be surrendered bj' deed. The point is now mere matter of spe- culation, but it will be found to arise several times in this chapter. SURRENDERS. 113 surrenders to him the deed by which the original grant was made, and at the same time delivers his deed of grant to. the lessee, the same shall not enure nor take effect to determine and extinguish the rent ; but shall take effect by way of grant, to take effect after* the death of the grantee. * [1143 For at the time of the grant made to him, he had the possession and seisin for his life of the manor out of which the rent was issuing, so that the grant could not take effect in him presently ; but, notwithstanding that, the grant shall take effect in his heir, if no act be done to hinder it. As if the lessee grant the same rent to a stranger, or otherwise purchase the reversion of the manor out of which the rent is issuing, so that the fee of the manor is executed in him $c. Or if the lessee in the same case enfeoff" a stranger of the manor, and the lessor enters for a forfeiture, the rent is determined and extinguished, because the lessee had the fee of the rent at the time of the feoffment, to grant or to forfeit, Sfc. And by the feoffment he departed with the land in fee discharged of the rent ; so that by this feoffment the rent is determined and extinguish- ed, S)C. 593. But if the lessee of the manor, after the purchase of the rent commit waste in the whole manor, or in parcel thereof, for which the lessor recovers in an action of waste ; yet the lessee shall not have this rent during his life: but quccrc, if the lessee after the purchase of the rent, and before any waste done, grant the rent to a stranger, and afterwards commits waste, for which the les- 114 SURRENDERS, sor recovers, if the grantee shall have the rent against the lessor during the life of the lessee, 8fc : (d). 594. But if a man be seised of a rent-charge in fee, issuing out of a manor, or other land, and the tenant of the manor or land is disseised, and the grantee of the rent surrenders his deed of grant to the disseisee, it eeems the same is no determination of the rent at this time ; and yet the disseisee is tenant to the lord, as to making an avowry. But if the disseisee re-enter, then it seems the rent is determined and extinguished, if he hath the deed of grant of the rent in his possession, by force of the surrender of the same deed, &$c. [Shep. 595- If a man seised of land in fee, grant a Touciist. rent-charge thereout in fee, and dies without heir ; and before any entry made into the land by the lord or any other person, the grantee surrenders his deed of grant to the lord. Qucere, if by this the rent be immediately determined and extin- guished, because the lord had but a possession in law, in the land out of which the rent was is- suing, at the time of the surrender of the deed (e) ; yet it seems the rent is immediately extin- guished, Sfc. (d) As the lessee certainly had the power so to grant over the rent, (although this seems to have been once considered doubtful, Co. Litt. 314, a.) it is clear the grantee's interest would not be affected by this subsequent forfeiture of the lessee ; vide Co. Lilt. 233, b. 234, a. (e) It is conceived to be clear that a surrender by the grantee to the lord would have been good, and taken effect im- mediately : and indeed the author himself seems to think it impossible to support his doubt. But see note on s. 591. ante. 310.] SURRENDERS. 114 596. But if a man who is tenant in tail of such M. 21 Hen. a rent or common, fyc. surrender his deed of grant ?' ,3 ' h to his grantor, or another who is tenant of the land out of which the rent is issuing, it shall not extinguish the rent, or, fyc. causa patet. 597. But if the grantee of a rent-charge inp.iaHcn.4, fee, grant the rent in fee to him who is seised i)ffu fTj 3*« ... 17 Lib. Ass. in fee of the land out of which the rent is issuing, p . u7> the same shall enure and take effect to determine and extinguish the rent ; as appears in the chapter of Grants, 8$c. 598. If tenant in tail discontinue the tail in fee, and die, and the issue in tail brings a A Jbrmedon against the * discontinuee, and pend- * [115] ing the suit shows the deed of entail to the tenant in the country, and the tenant seeing the deed, surrenders to him 8ft. the same is no good surrender. 599. And although some particular estates may be surrendered in manner and form afore- said, yet it behoveth that he that surrenders be seised or possessed of such estate at the time of B the surrender ; otherwise such surrender shall not be good, except in special cases, Sfc. 600. And therefore if lessee for life, or for years of lands, be ousted of the land by a stranger, and after the ouster, and before his re-entry, he surrenders to his lessor, it is not a good surrender, because he had but a right at c the time of the surrender, fyc. And therefore if a woman hath title to have dower by the common law, and she surrenders to liim against N 115 SURRENDERS. whom she ought to have dower, it is a void surrender (d). AI. 2'iEd.4, g 01# if a lease for ten years be made to begin Surrender^. afc the feast of St# Michael the Archangel next after the lease, and before the same feast of St, Michael the lessee surrenders to the lessor, it is not a good surrender, yet he might have granted the same before the said feast of St. Michael. ISed vide But the surrender is not good, because the lessee Cony' B ' s not "§ nt ^y m se i sm an d possession of the en- l.ch. 2.] tire thing leased before the feast of St. Michael comes, Sfc. M. 15 Hen. 602. And a release made by the lessor to the 7,10.14. i e s See before the term commences is void; and 1. 4 *ien, / , U. 10. notwithstanding that the lessee before the term begins enters into the thing leased to him, and M.22Ed.4, does an act which amounts to waste, the lessor to. 36. gj^u not h avB an action of waste for the same. And if the lessee after the term begun, and before he enters by force of the lease (e), surrenders to his lessor, it seems to be a void surrender, if any other person be in possession of the thing leased at the time of the surrender ; unless he hath par- cel of the term of the lessee, by force of the grant of the lessee, Sfc. 603. If a man seised of land, lease it for ten .years to begin presently, and waives the posses- (d) As a surrender: but it would undoubtedly now be held to operate as a release, which would be the proper assurance in such a case. (e) This, it will be recollected, does not apply to a term limited by way of use ; as in this case the statute vests the possession in the party without his entry. SURRENDERS. 115 sion, and before any entry made into the land by 4 Hen. 7, any person, the lessee surrenders his estate to "j/^' ~ f his lessor, it is a good surrender, and yet the fo. 14. lessee shall not have an action of trespass for a trespass done upon the land before his entry ; and also a release made to him by his lessor before his entry, is void, &;c. 604. And if there be lessee for ten years of land, and he grant parcel of his years to a stran- ger, and his grantee enters, fyc. and the lessee surrenders to his lessor, it is a good surrender ; M. 14 Hjn. but if the grantee of the lessee had surrendered to ' 7 ' 3 ' the lessor of his grantor before the surrender made by -the lessee, the same should not have taken effect as a surrender ; causa patet ex premissis. 605. If there be lessee for years of land, re- mainder to a stranger for life, the remainder to another in fee, and the lessee for years enters into the land, and during the years he in the remainder for life surrenders to him in remainder in fee, it is a good surrender : but if in the same case the lessee for years had been put out of the land by one that had no right, and he who put him out had died seised* of the land, and his heir had * fuGl entered, upon whom the lessee for years had en- tered, and then he in the remainder for life had surrendered to him in the remainder in fee, the same had been a void surrender, because he had but a right to the remainder, and also he to whom the surrender was made, had but a right of re- mainder in fee at the time of the surrender Sfc. (>o(). If there be grantee of a rent-charge in fee, and a stranger is pernor of the rent, and the m 2 116 SURRENDERS, grantee surrenders his deed, by which the grant of the rent was made, to the tenant of the land, the same shall determine and extinguish the rent, notwithstanding that the pernancy was made with the assent of the tenant of the land, fyc. And it is to be known, that there are two manner of sur- renders, viz. a surrender in deed, and a surrender in law. And first we will speak of a surrender in deed, and what words make such a surrender. T. 8 Ed. 3, 607. And as to that, know, that when the words vv'd^'^' P rove a sufficient assent and will of him who is Ventr.ao6- the particular tenant, that he in the remainder or ~- mThom P- the reversion shall have the thing which he (the ton v. o \ Leach.] particular tenant) hath or holdeth, they are words sufficient to make a surrender, if he to whom the surrender is made agree to it. P. 40 Ed. 3, 608. And therefore, if lessee for life or years Swrmtdtr, of ^^ say tQ h j g i essor? t j iat j^jg w jjj ; s t i iat ^ shall enter into the hind which the lessee holds for life or years, and shall have the same, and by force thereof the lessor enters into the same, it is a good surrender ; and so shall it be, if he say to his lessor, or to him in the remainder, or rever- sion, that he wills that he have the land, and the lessor enters by force thereof, or agrees there- unto, it is a good surrender : but if the lessor, or, II. 6 Ed. 3, Sfc. doth not enter by force thereof, nor agree \ ) l ^' thereunto, the surrender is not good ; for the A-mze, 403. ' . .... tenant cannot surrender to him against his will : but if he to whom the surrender is made do once agree to the same he cannot afterwards disagree thereunto. And in the time of King Edward 1st. the lessor entered into the land leased for life> SURRENDERS. lit) with the assent of the lessee, and because it was not in the presence of men of credit, it was holden to be a void surrender. But the law is otherwise at this day, 8$c. 609. And if the lessee come unto him in the remainder, or in the reversion, §c. and say he will occupy the land no longer, and he in the re- mainder, or §c. by force thereof enters, it is a good surrender. And if the lessee say to his lessor, I surrender to you the land which I hold of your lease ; or if he say, I hold such land or house, 8$c. and shew what land or house, SfC. of your lease, and I surrender the same land or house S$c. to you, and the lessor agrees thereunto, the same is a good surrender. 610. And if J. S. hold one acre of land for years of the lease of C. D., and holds another acre of land for life of the lease of the same C. D., and J. S. says to C. D. I surrender to you all the land which I hold of your lease, it is a good surrender for both acres : so shall it be if he say, I sur- render to you the land I hold of your lease, for insomuch as he doth not express what land, it shall be taken for all the land which he holds of his lease, because the surrender is his act and deed, and shall be taken strongest against him, Sfc. But if he had surrendered the land which he held of his lease for years, the lessor should * not by * [H/] this surrender have had the land held for life; so shall it be t- converso, 8$c. G11. If I hold one acre of land for life, of the lease of the father of J. S., and I hold one other iicre for life, or years, of the lease of «/. £'., and 117 SURRENDERS. I surrender to J. S. the land which I hold of his lease, by this surrender he shall not have the land which I hold of the lease of his father, notwith - standing that the reversion of the same acre be in him by descent from his father, Sfc. 612. If a woman who is tenant in dower take a husband, and he surrenders this land which he holds as in right of his wife, for the life of the wife, it is a good surrender during the coverture. And if he die before the wife, or if they be di- vorced causa prcecontractus, she may enter and defeat the surrender, notwithstanding that he to whom the surrender was made died seised of the land, in his demesne as of fee, and his heir be in by descent ; the same law is, if the surrender be made by the husband and wife, fyc. eg Lib. Ass. 613. But if a feme sole who is lessee for years 7 Heii 6 °^ ^ aru ^' or a house, Sj-c. take a husband, and he fo. 1. surrenders the land, and dies before the years are ^: 10 4 ' determined, yet the surrender shall stand. If a man be seised of land for the life of his wife, as- in the right of his wife, and he and his wife will surrender the same land by fine, the wife shall be examined, because she gives by fine. And no particular tenant can surrender by fine if he be not named in the writ whereupon the fine shall be levied, fyc. H. 15 Ed. 3, 614. A surrender made by an infant by word Duress, 14. f u^^]^ ff tne l an d, is not good; insomuch that if he surrender an estate of freehold, and by force hereof, he to whom the surrender is made , enters, the infant shall have an assize : the same law is of a surrender made by duress Sfc. ; a sur» SURRENDERS. 117 render made by a man who is not compos mentis is good for ever ; tamen qucere, fyc. (J 1 ). G15. If two men seised of land in fee, lease it sEd.4,fo.4. to a stranger for life or years, and he surrenders ' a> all his estate in the land to one of them, the same [Ante s. 80. shall enure to them both. See the reasons thereof 5 '-' in the chapter of Grants, $c. But if the lessee [Antes. 80- for life had surrendered the land to both the les- J sors, or to one of them for twenty years, the same shall not take effect by way of surrender ; for then there remains an interest in the lessee, which is as a mesne remainder, between the estate which is surrendered and their reversion, fyc. In the same manner as it is of surrenders of land, so shall it be of surrender of deeds, or of any other things ; mutatis mutandis, Sfc. 616. If a man seised of land, lease it for life, and grant the remainder to a stranger for life, and the lessee for life grants his estate to him in the remainder for life, the law saith that this shall enure by way of surrender ; so shall it be, if the lessee for life enfeoff him in the remainder for life ; the same law is, if a man seised of land in fee lease it for life, and the lessee enfeoffs his lessor thereof, Sfc. G17. If lessee of land for ten years take a new lease of the same land of his lessor* for * [1183 twenty years, it is a surrender of the first lease, g 1- M Hen * " " 8 Lib. A«. (/) This point 'vas determined in the great case of Thomp- p, 20. ion and Leach, in the reign of William 3d ; upon one argument the court (Holt, C. J.) inclined to hold the surrender void: and in the next term decided accordingly. The judgment was appealed against, and affirmed in Dom Proc; Com. R. 45 ; Sail;. 576-427 ; 3 Mod. 301. and various other Reports. N 4 118 SURRENDERS. fyc. (g). But if lessee for life or years of a house and land, remove his goods and chattels out of the house and land, by reason of the greatness of the rent, or because he is behind in his rent, or for any other cause, and the lessor enters into the house and land, this is no surrender ; for it doth not appear to be the will of the lessee that his lessor shall have the house and land, but he waives the possession for his own advantage. M. 7 Hen. 7, 6l8. If lessee for life of land grant his estate P -uHeu 6 *° h^ m m the rev ersion and to two other men, it Attamim. 3. is not a surrender for any part ; and yet if there be lord and tenant by fealty and twelve-pence, and the lord grants his seignory to the tenant and a stranger in fee, the moiety of the rent shall be extinguished in the tenancy ; for it would be inconvenient that the tenant should have rent issuing out of his own land, and to his own use-; and the other moiety of the rent with the fealty, the other grantee shall have, fyc. 61 9. But when lessee for life of land grants his estate to him in the reversion and to two others, he alone hath not any interest, and estate in the freehold ; but he hath a joint estate with H. 50 Ed. 3, others in the freehold ; so that if they survive to. 3, Waste, — — (g) That is if the second lease be limited to commence before the expiration of the first, but not otherwise, he* case, 5 Rep. 12 ; Cro. Eliz. 521 ; Com. Dig. I. 1. and cases there cited ; Shep. T. 302. The surrender takes effect im- mediately, although the second lease does not commence till a future day: and this upon examination will be found to rest upon solid legal principles. ftJr. Atheiley's remark upon the point (Sh. T. 302. n. (i)) would be correct if it rested upon the doctrine of Merger, but it does not. Vide 3 Presr. Convey. 189, 162-3; and note the last sentences in h«\ case, 5 Rep. 58. SUKREXDEKS. 118 they shall have the whole freehold by the sur- vivorship : and also he in the reversion had no- thing in the freehold before the grant ; and it is not impertinent but that he in the reversion may take livery of seisin .and an estate in the same freehold for the advantage of another person- And if lessee for life be, the remainder for life, and the lessee for life commits waste, this waste is dispunishable at this time for the advantage of him in remainder for life, §c. See other rea- sons concerning this matter in the chapter of Grants, §c. 620. If lessee for life grant his estate to him in M.7 Hen.6, the reversion, remainder to a stranger in fee, itj°;4- seems the remainder is void ; because when he in 4 . 2 a j the reversion alone is to take the whole, and all the estate which was out of him, and no more, and he hath the reversion in his own right, it shall be hard for him to take by livery of seisin : and so it seems the grant shall enure by way of sur- render, and the remainder be void; tamen quccre (h) because the livery of seisin is made upon the whole deed; and by the same deed the remainder is granted to the stranger ; and so it is to the profit and benefit of the stranger, 8fC. But if lessee for M.og Ed. 3, life of land lease it to him in the reversion for life, 3 6 - the remainder to a stranger in fee, the same is no surrender ; causa patet. O21. If there be lessee for life of land, remain- M. 41 Ed. 3, der in tail to a stranger, remainder over in tail to f^' s " 25 3^- (h) The limitation over to the stranger is a forfeiture, of vehich the reversioner, heing in possession under the limita- tion to himself, shall take advantage, and hold out the re- inuinder-nian ; Co. Litt. 335. a. N 5 118 SURRENDERS, another man, the remainder to the right heirs of the lessee ; and the lessee doth thereof enfeoff him in the first remainder in tail and his wife, in fee ; and the husband dies without issue, living the lessee, and he in the second remainder enters and puts out the wife, she shall have an assise ; n because she shall have the land during the life of the lessee who was her feoffor ; tamen quaere (J). And if he in the second remainder in tail, die [119] without issue, living * the wife, then she shall A retain the land to her, and her heirs for ever, fyc. 622. If a feme sole seised of land in fee lease it to a stranger for life, and takes a husband, and the lessee grants his estate to the husband, this is no surrender: and yet the husband is seised of the reversion in fee, which is immediate to the (i) In this case the feoffor is tenant for life in possession* ■with the ultimate remainder in fee. In the reign of Edward 3, when the cases cited in the margin of the text were decided, the statute de donis still preserved its vigor, and estates tail could not be barred ; so that this remainder in fee might well be considereS valuable and of importance. The judges might therefore feel a repugnance to decide that a feoffment made by the owner of this reversionary fee, when also lawful tenant of the freehold, was a forfeiture of his estate for life to a par- ticular tenant, and these considerations (although not unop- posed b} T contrary rules) probably led to the decision stated in the text. But when Perkins wrote, tenants in tail had pro- ceeded very far towards acquiring the power which they now possess over that interest, and the reversion in fee had propor- tionabty diminished in value. Perkin's qusre, therefore, seems to have been founded on the gradual change in the law ; and in a case very nearly resembling that in the text, Blackaller v. Martin, M. 16 & 17. Eliz. ; Djer, 339, pi. 44 ; Co. Litt. 302. b. it was determined that the feoffment was a forfeiture, for which the tenant in tail in remainder expectant on the estate for life might enter. The point could not occur in modern practice, as the tenant for life and the first remainder-man in tail would now join in a recovery ; and thereby acquire the fee. A fine by them would not be sufficient in this case, as it could not destroy the interposed estate of the second tenant in tail. SURRENDERS. 119 estate of the lessee, but he is seised thereof in 3 another right, viz. in right of his wife, and not in his own right. 623. If lessee for life be of land, the reversion m. 21 H«i. to two coparceners, and one of them takes a hus- ?l 42 - band, and the lessee grants his estate to her and 1 1" her husband, this is no surrender : But if tenant in dower be of- lands, and she grant her estate to him in the reversion reserving rent, and the grantee takes a wife, and dies, his wife shall have P. 45 Ed. 9, dower ; which proves that the grant enures by ~ way of surrender ; and yet the reservation shall be good if it be by deed indented, to take effect by way of grant, fyc. But the tenant in dower shall not distrain for the rent, because she had no reversion ; and no clause of distress is in the deed : and she shall not have an action of debt, because she hath an estate of freehold in the rent ; but she shall have the same as a rent-seek. More shall be said of this in the chapter of Reservations. 624. And it is to be known, that a surrender H. 8 Ed. 4, of a freehold made by deed indented upon condi- V' J r render, 4. don is good ; and if the surrender be of an estate for years in land, then the surrender may be made upon condition without deed: and if, for example, a surrender be made of the freehold by deed in- dented, upon condition that if he to whom the surrender is made do not go to York within one month next following the date of the surrender, that then it shall be lawful for him who made the surrender to re-enter into the land, the same is a good surrender upon condition. »6 119 RESERVATIONS. CHAPTER X. Of Reservations. r [Viner's Abr. title Reservation.'] [Co. Litt. 625. JN O W it is to speak of reservations. And 143. a. Sen. as t0 t jj at k now there are many words by which 1. 142. a.& J J \. a man may reserve that which was not in him before, or abridge the tenure of that which was in him before, viz. tenendum, reservandum, red- dendum, solvendum, faciendum, and other such T.22 Ed. 4, like. And there are divers words by which a man r- '"' a ■ * ' cannot properly reserve any thing, but those which were in him before, viz. exceptis, reservatis, prevter, salvis, and other the like, 8fc. M.si Ed. 3, 626. And therefore, if a man be seised in fee Mesne, 49. f one acre f i an{ i 5 he may let it for life, to hold of him by fealty and ten shillings rent ; and if the h fealty or the rent be behind, he may distrain ; and yet the same was not in esse before. See the reason thereof in the first book of my Master Lit- tleton, in the chapter of Rents ; and see there many good cases concerning reservations. And * [120] it is * to be known that a reservation ought to be a 26 Hen. 8, out Q f a t h m g t0 w hich a man may resort to take [Co. Litt. a distress, as out of land, or a house ; and not out j 42. a. [& Q f rent c e, r except the reservation be made by 47.a.&n.i.J ; r . J our lord the King, of whose title I shall not speak. H. 44 Ed. 3, 627. But if there be lord, mesne, and tenant, Grant, 47. an( j j^e mesne gives the mesnalty in tail, reserv- M.44Ed>3, ' 39. RESERVATIONS. 120 ing fealty and rent, this is a good reservation ; because the tenancy may come to the donee : P. 10 E<1. 4, but neither the donor nor his heir shall distrain 4, "'' for the fealty, or the rent, although they be be- hind, before the tenancy be come unto the donee; and then he shall distrain for all the arrearages from the time of the gift, and the donee shall not avoid the same, &c. 628. If there be lord and tenant by fealty and two-pence, and the lord releases or confirms the estate of the tenant, to hold of him by one penny, T. 12 Ed. 4, the same is good ; and yet he held of the lord by * '.' 1 F * B < f i for term of life by fine, rendering the first year one penny, and for six years then next following, every year a rose at the feast of Easter; and after the six years, every year ten marks in money with clause of distress, this fine shall be received. But a fine with clause of re-entry shall not be received ; because then the estate should be de- feasible, which is against the nature of the fine, &c. for finis finem litibus imponit, 8fc. C30. If a man seised of land lease it for lii'e, M. 15 Ed. 3, rendering for the first six years three quarters of *-'**<•"• 3& 120 RESERVATIONS. A. 50 Ed. 3, wheat; and if he hold over, Sfc. yielding 5?. by * ' the year, this is a good reservation, by this word reddendum, Sfc. 631. If there be lord and tenant by knight- service, and twenty shillings rent, and the lord confirms the estate of the tenant, rendering to him only homage, fealty, and escuage uncertain, viz. (forty shillings), when it shall be assessed by parliament at forty shillings, and when at more? more, and when less, less ; by this confirmation the twenty shillings rent is determined ; and yet this word (reddendum) is more properly the word of the confirmer, than of the confirmee, Sfc. 632. And if a man seised of land, lease it for life, or give it in tail, solvendum sibi &; hcered. suit annuatim twenty-pence, it is a good reservation. A.iaHcn.3, And if there be lord and tenant by fealty and Ivr.13K.ic2", twelve-pence, and the lord confirms the estate of Avowry, 99. the tenant, ad solvendum sibi one penny, the same is good, Sfc. And if a man seised of land lease it for life, or give it in tail to a stranger, ■pro homagio suo Jaciendo, it is a good reservation, 633. If there be lord and tenant by fealty and twelve-pence, and the lord confirms the estate of the tenant ad faciendum sibi Jidelitatem tantum, it is a good confirmation, and by the same the rent shall be determined, §c. And it is to be known, * [121 ] that every thing * which is reserved by any of the An. 31 Lib. words aforesaid, ought to be within the purport Ass. p. 30. . of the same words ; otherwise the reservation is not good, except in special cases, fyc. [Co. Lht. 634. If there be lord and tenant by knights 74. b.] RESERVATIONS. 121 service, and the tenant gives the tenancy in tail faciendum forinsecum servitium quantum ad ean~ dem terrain pertiuet, by these words the donee shall hold of the donor by knights service, Sf-c. 635. If there had been lord and tenant by P. 49 Ed. 3, knights service, and the tenant before the statute p^^d' 4 , 4 ' of Westminster 3, called Quia emptores terrarum, Avowry, 17. had levied a fine of the tenancy upon a grant and render to CD., reddendum inde ad Jestum Nativitat. Sancti Johannis Baptistce annuatim 1 d. pro omnibus servitiis secularibus 8f demandis, et faciendum capitalibus Dominisjeodi il/ius pro dido (the tenant who levies the fine) hccred. Sf assign, suis omnia servitia debita Sf consueta. In this case, the conusee had held of the conusor by knights service; although he expressed that he should do the services Capitalibus Dominis ; for by these words in this case, he should not hold De Capitali Dom. because there was a tenure before expressed in the fine, viz. by these words, Reddendum inde annuatim ad Jestum, fyc. which words made a tenure of the conusor ; so that if [Co. Liu. he should hold De Capitali Dom. then he should 15<2 ' b ^ hold the land of two several lords ; which the law will not suffer in this case. But if these words had not been in the note of the fine, viz. Redden- dum inde ad Jestum Sancti Johannis Baptistce annuatim 1 d. pro omnibus servitiis secularibus ily demandis ; then by the other words the conusee ought to have held of the lord paramount, by the like services as the conusor held, Sfe. G36. But jointenants of land, or houses, SfC. by special means may hold by several services. As .121 RESERVATIONS, put the case : there be lord and two jointenants of two acres of land by fealty and twelve-pence, and one of them at this day enfeoffs a stranger of that which belongs to him, upon condition : in this case, the feoffee shall hold of the lord by fealty and sixpence ; and if the lord grant to a stranger the service of the feoffee, and the feoffee attorns, and afterwards the condition be broken, and the feoffor enters, in this case the feoffor and the other jointenant are 'jointenants as they were before the feoffment made ; and yet they hold by several services, and of several lords, but not the same land ; for one jointenant holds one moiety of one lord, and the other jointenant the other moiety, per mie et per tout of the land, of the other lord, fyc. 637. If there be lord and tenant, and the te- nant at this day gives the tenancy in tail, tenen- dum de Capitali Dom. this tenendum is void ; because the law hath made a tenure betwixt the donor and donee, fyc. and then if the tenendum should be good, he should hold the same land of two several lords, which the law will not suffer, except it be by matter of conclusion, Sfc. 638. And if a man seised in fee of a manor in which there is a mill for s the grinding of wheat, and other grain, had before the statute of Quia emptores terrarum, enfeoffed certain tenants of the manor of parcel of the manor, doing suit at his mill, this is a good tenure by the word (doing). And it is said, if the feoffor lease the manor to a stranger for life, rendering to him forty shillings for the manor, and thirty shillings for the grind- RESERVATIONS. 1*22 ing, and the tenants of the manor attorn to the lessee, that the thirty shillings are a rent service issuing out of the whole manor, Sfc. 639. And it is to be known, that these words except is Sf prceter, are always of such things which the feoffor, donor, grantor, lessor, releasor, or confirmor, have in possession at the time of the feoffment, gift, grant, lease, release or confirma- tion. And therefore, if a man seised of land, lease it for life, exceptis twelve-pence, or prceter twelve-pence, it is no good reservation ; causa patet, Sfc. 640. But if a man seised of land in fee, lease it for life, reservatis sibi hide twelve-pence, this is as well as if he had said, reservando sibi indc twelve pence ; for all is one sentence, and there is not any other difference, but that one sentence ponitur absolute, and the other ponitur gerun- dive, fyc. G41. But if a man be seised of four acres of P. 11 Ed. 3, land, and of a house in the town of Dale, wherein is a chamber, and he enfeoffs a stranger by deed of all his lands and tenements in the town of Dale, excepto, or reservato sibi, the chamber, or prceter the chamber, and shews the certainty thereof; in that case, the chamber shall not pass by the feoffment. 642. If a man seised of a manor lease it by T. 22 Ed. 3, deed indented to a stranger for life, exceptU <$• ***»fAc^6. reservatis to the lessor omnibus grossis arbor/bus in dicto mancrio crescentibus, by this lease the great trees shall not pass. 643. And if a man seised of a manor lease it 122 RESERVATIONS, by deed indented for life, exceptis fy reserwtu M. 5 Ed. 3, quod bene liceat to the lessor succidere dare 8$ *F fCoT'itt." vendere omnes grossas arbores in dido manerio 47- a»] crescentes, Sfc. Qucere, If the great trees shall pass by the lease, Sfc. (a). A man seised of a manor to which an advowson is appendant, en- feoffs a stranger thereof, exceptis reservatis, Src. or prceter one acre, and names the acre, and the ad- vowson, this is a good exception ; and neither the acre nor the advowson shall pass by the feoff- G ment ; and the advowson shall be appendant to the acre which is reserved, Sfc. T. i6Ed. 3, 644. And if a man hath a rent-charge in fee mes, 4. issuing out of land, and by fine releases to the tenant of the land all the right which he hath in the land, reservatis, exceptis, or prceter, the rent, it is a good exception. And so it is of a grant, confirmation, Sfc. mutatis mutandis, 8fc. And if a man sell a wood, except twenty oaks, and shows h which in certain, it is a good exception. (a) This case is put in Sliep. T. 78, with the addition, " it seems this is a good exception of the trees;" but it is ap- prehended the trees pass by the lease ; for otherwise tl»e lessee could not take estoverium wdijicandi, timber for repairs, from them ; and the expressions appear framed expressly to allow the trees to pass, subject to a right in the lessor to fell them. Both Perkins and the Touchstone state the grant ai by deed indented, by which they appear to rest the point upon the agreement of the lessee, and to admit that other- wise the language would not amount to an exception. If a lease be made excepting woods, thereby the soil itself is ex- cepted ; Ive's case, 5 Rep. 11. b. ; Whihter v. Paslow, Cro. Jac. 487, but not so by an exception of the trees, Liford'i case, 11 Rep. 49. b. Nor will the latter exception deprive the lessee of this right to the fruit and lops and tops of the trees, (ibid. - ) See the cases upon these points collected in Vine^s Abr. Reservation U. RESERVATIONS. 122 C45. And it is to be known, that this word (salvo) shall be a good exception of such things which are in the possession of the feoffor, donor, Sec. at the time of the feoffment, gift, Sj-c. ; and also this word (salvo) gives a new thing to the feoffor or donor, fyc. which was not in him before, fyc. 646. * If a man be seised of a water in which * [ l2 31 he hath a fishing, from the town of Dale in the . ' j, ' county of Middlesex, to the town of Sale in the Assiu,3i6. same county, and upon the same water hath a mill, and he grants to a stranger Totam partem piscarice sues de D. quam procul terra inde exttndat, ita quod nee ipse, nee hceredes sui, nee molendinarii de ccetero, cum retibus nee aliis ingen. piscar. salvo tarnen stagno molendini sui ; this exception shall not oust the grantee of piscary in the same pool ; T. a Ed. 4, and this (salvo) shall have relation only for thej^ "j,? e " repairing of the mill, and to do such things as are necessary to the mill, fyc. ' But if I grant com- mon to a stranger, for all manner of cattle, in my manor of Dale, saving in one acre, and name the acre, the grantee shall not have common in that acre, Sfc. G47. If there be lord and tenant by fealty and twelve-pence rent, and the lord releases all his right to the tenant, saving to him his rent, it is a good reservation ; and the lord shall have the rent in the same nature as he had it before. G48. And if there be lord and tenant by knights service, viz. by homage, fealty, and es- cuage uncertain, and twelve-pence rent, and the An. 29 Lib. lord grants the rent to a stranger, saving to him £ ss * P 1 * au - his seignory, it is a good saving : but notwitli- 1*23 RESERVATIONS, standing that the lord shah have the escuage ; and yet it is but a payment of money if the tenant will ; and the grantee shall have the twelve-pence rent as a rent-seek, fyc. M.2 Hen. 3, 649. If a man hath a parsonage, and a vicarage 171 ' 9* of the same church, and the advowson of the same; and by fine grants unto a stranger and his heirs the advowson of the church, saving to the grantor and his heirs, the presentation to the vicarage ; it is a good saving, fyc. 650. If there be lord and tenant by knights service, and the tenant gives the tenancy in tail, to hold of him by one penny for all services salvo ■forinseco servitio ; in this case, this salvo shall 31 Lib. Ass. make the donee hold of the donor by knights 26 Lib Ass. serv i ce > an( l yet the same was not in the donor p. 66. before ; but the donor was chargeable with knights service for the land, to him of whom he held it. And Jbrinsecum servitium is such service by which the donor held the land which he gave, fyc. See divers good cases concerning reserva- tions of deeds in the chapters of Deeds, and Conditions, fyc. 651. Now it is to show, what persons may by their reservations make a tenure. And to what persons they may make such tenure, and then what things may be reserved to make a tenure ; and when the heirs of him to whom the reserva- tion is made shall have the things reserved, §c. And then something shall be said, when the reservation of collateral things, which cannot make a tenure, shall be good, and when not, Sfc. And it is to be known, that before the statute of RESERVATIONS. 123 Quia emptores terrarum, he who made an estate to another in lands, or houses, might make a reservation upon the same estate, according to a the interest * which he parted with, except in * [124] special cases, Sfc. 652. And therefore, if before the statute ofT. 5 Ed. 4. Quia emptores terrarum, there were two ioin-'Si^v. p . . [Co. l.itt. tenants of lands or houses in fee, which they held 47. a.] by fealty and two shillings rent, or by fealty and a horse, and they had enfeoffed a stranger of the lands or houses, to hold of one of them by fealty and twelve-pence, the feoffee should have held the moiety of him by fealty and twelve-pence, because by the feoffment he parted with only a n moiety in right, and yet he should have had the whole rent reserved, notwithstanding that it be a severable rent, because it was reserved only to him, and he might well reserve it to him alone, notwithstanding that he joined in the feoffment with his companion, S^c. And the feoffee should c have held the other moiety of the other jointenant, to whom the reservation was not made by fealty and twelve-pence rent ; and he and his companion should have held together the whole land over by fealty and two shillings, because that then the rent was severable : and if they themselves had held the land, Sfc. over by fealty and a horse, then it is said, the feoffee should have held the moiety of him by d fealty and a horse, tamcn qucere; because he was party to the reservation made to his companion (b), (M These points have been so long obsolete that, in the absence of authority, it would be useless and almost absurd to attempt an opinion upon this quxrc, and which is now of course immaterial. 124 RESERVATIONS. SfC. But if the jointenants had enfeoffed a stran- ger to hold of both of them, or of one of them, and had expressed no services, they had been void words, and the feoffee should have held of them, as they held over. 653. And if two jointenants were of land, and before the statute of Quia emptores terrarum, one of them had enfeoffed a stranger of that which belonged to him without reserving any thing, the feoffee should have held of his feoffor by the moiety of the services by which the feoffor and his joint companion held over, if they held over by severable services, Sfc. And notwithstanding this feoffment, the feoffor, and he who was his joint companion should have held the same land over of their lord as they held before, so that the avowry of their lord was not altered by this feoff- ment. And also the feoffor should not have distrained the cattle of him who was his joint companion, because he had an interest in the land by a more ancient title than his seignory began, fyt. W«stm. 3. 654. If before the statute of Quia emptores cap. 1. terrarum, there had been lord, mesne, and feme ri8 Ed. l, , , . , , i . St. i, c. 1, tenant, and the mesne and the tenant had mter- A.D. 1290.] marr j e d, the same should not have altered the lord's avowry ; or if the tenant had enfeoffed the mesne of the tenancy, it should not have altered the avowry of the lord, fye. 655. If lord, two jointenants mesne, and tenant had been, and every of them had held of the other by fealty and twelve-pence rent, and the tenant had enfeoffed one of the jointenants mesne, before the statute of Quia emptores terrarum, of RESERVATIONS. 124 the whole tenancy, it seems the feoffee should T. 5 Ed. 3, have held one moiety of the tenancy of him, who { ^ rant > 1 9- was his jointenant mesne, by fealty and sixpence rent: for his joint mesne might have granted what belonged to him of the mesnalty unto a stranger, and his grant should have been good with attorn- ment of the tenant, although * it had been but by * [125] matter in writing ; and if it had been by matter of record, it should have been good without attornment of the tenant, fyc. And if the mesne to whom the feoffment was made, had before the feoffment released all his right in the tenancy to the tenant, by this release the moiety of the mesnalty had been extinguished, and no more. So that notwithstanding this release, his joint mesne might have avowed upon the tenant for the moiety of the mesnalty, viz. for fealty and sixpence ; so it appeareth that by the feoffment made to one mesne, there is but a moiety of the mesnalty extinct, viz. the moiety which in right belongs to the feoffee, and no more, &;c. So that for one moiety of the tenancy, there are lord, mesne, and tenant ; and for the other moiety of the tenancy, lord and tenant onl)', fyc. G56. If before the statute of Quia emptores terrarum, there had been father and two daugh- ters> and the father being seised of one acre of land, had thereof enfeoffed his eldest daughter, to hold of him and his heirs by fealty and twelve-pence, and the father had died, and the seignory had de- scended to the two daughters ; now the eldest daughter should have held of her younger sister by fealty and six-pence. But if the eldest 125 RESERVATION'S, daughter being seised of one acre of land before •21 Hen. 7, the statute of Quia cmptores terrarum, had en- feoffed her father thereof, to hold of her and her heirs by fealty and six-pence, and the father had died seised thereof, and the two daughters had entered into the same acre as two daughters and one heir to their father ; in this case the eldest daughter should not have distrained for any rent, during the time that she was in possession of the tenancy in common with her sister, but after partition made between her and her sister, her sister should have held her part of her by fealty and three-pence, Sfc. 657. If before the statute of Quia emptores terrarum, lord and tenant had been of land by knights service, and the tenant had been disseised of the land, and the uncle of the tenant had re- leased all his right in the moiety of the tenancy, to the disseisor, and by the same deed of release had bound himself and his heirs, to warrant the same moiety, fyc. unto the disseisor and his heirs, and the uncle had died without issue, and the warranty had descended upon the disseisee ; and the disseisee had taken a wife, and had had issue a son, and the disseisor had enfeoffed the son of the whole tenancy, to hold of him by knights service, and afterwards the father had died ; now the son had been remitted to the moiety of the tenancy, and should have held the same moiety by priority, SfC. and the other moiety he should have held by posteriority, Sfc. P. io Ed. 4, 658. If before the statute of Quia emptores Distress, 3. f €)Tarum a m an seised of land had leased it to a IlESERVATIONS. 125 f iranger for life, and afterwards had granted the reversion in fee to another stranger, to hold of him and his heirs by knights service ; this had been a good tenure, but the grantor should not have dis- trained for the services during the life of the lessee, fyc. 6r } g. And if before the statute of Quia emplores terrarum, a man seised of one acre of land had leased it for life, and afterwards released all his right in the same acre to the lessee, to have and to hold unto him 'and hij heirs, fyc. or had con- firmed the estate of the lessee, to have and hold the same acre to him and his heirs, to hold of him and his heirs * by knights service, the releasor might * [ 1 26] have distrained for such services, or any of them in the land whereof the lease and release, or con- firmation was made, as often as the same had been behind, Src. 660. If a man seised of land in fee in right of his wife, before the statute of Quia emplores terra' rum, had alone enfeoffed a stranger thereof without saying more, the feoffee should have held of the husband by such services, as the husband and wife held over ; for the husband alone did not hold over. But if the husband and wife had joined in the feoffment, to hold of the husband, these words (to hold of the husband) had been void, and the feoffee should have held of the husband and wife by such services as they held over; inso- much, that if the husband had died, and the wife K. 2: Hen. after his death, had accepted the services from the 6 > £"*"* feoffee, she should not have avoided this feoffment M.'i 1 Ed. 3, in a cm* in vita. And if the husband and wife had &**'"> 6 3- 126 RESERVATIONS, joined in the feoffment to hold of the wife, with- out saying more, the feoffee should have held of the husband and wife, insomuch that if the wife had died, the feoffee should have held of the hus- band until the feoffment had been avoided by the heir of the wife in a cut in vita, SfC. and then th e heir should have held of the lord paramount. An.ioEd.4, 661. If before the statute of Quia emptores fo. 5. terrarum, two coparceners had been of land in fee, and one of them had released all his right §c. to his companion, reserving rent, it had been a good reservation, beause the releasee is in in the part of his releasor in the land, en le Per by force of the release. 662. But if two jointenants had been of land in fee, before the statute of Quia emptores, fyc. and one of them had released all his right in the land to his companion, reserving rent, the same had been a void reservation to make a tenure. But perhaps if such release had been made by deed indented, and words of grant of the releasee, tyc. had been comprised in the release, or only words of reservation without words of grant, then the releasor should have had the rent reserved, as a rent-seek SfC. ; and if the reservation had been with words of distress, then he should have had it as a l'ent-charge, fyc. M. 17 Ed.i, 663. And if lord and tenant in fee had been by io. 79. fealty and twelve-pence, and before the statute SfC. the lord had released to the tenant all his right in the tenancy, to hold of him by twenty-pence, this had been a void tenure, because he parted with no estate executed, nor to be executed there- RESERVATIONS. 126 after, by the release upon which he made the tenure. 664. If before the statute of Quia cmplores, fyc. [Co. Lite. a man seised of land [in fee] had thereof enfeoffed 143- b * a stranger, to hold of him and his wife by twenty- pence, it had been a void tenure as to the wife, and a good tenure for the whole rent as to himself Sfc. And it is said the reason is, because the wife M. 1 1 Hen. was a stranger to the feoffment : but notwithstand- 4 ' V' l ' ing that the wife had been a party to the feoffment V-J p U t to his remedy against his lessor or donor, or him in the reversion. And the reason is, because such lessee or donee doth not hold of the lord paramount, Sfc. 676. If there be lord and tenant by fealty and twelve-pence, and the tenant at this day enfeoffs a stranger of the moiety of the tenancy, in tin's case it seems to some, the rent shall not be appor- tioned ; for these words, pro particula ilia, shall be intended where the feoffment is made of one acre of the tenancy in severalty, or of a greater or less part of the tenancy in severalty ; tamen gucere (e). (e) In such a case the rent could not be apportioned so as to deprive the lord of his remedy for the whole by distress upon the whole land. But very soon after Peikins wrote it was held, that in such case the feoffee should hold of the loni ty the entire services, by which the entire land was held ; Viner's Abr. Tenure, E. a. pi. 12. The propriety of tilt* decision, however, appears very questionable. liESERVATIONS. 129 G77. And if there be lord and two jointenants, M. i2Ed.4, and one of them aliens that which belongs to him, jJ^eEd.?, it seems to them the rent shall not be appor- fo. 43. tioned : but if coparceners make partition, the same shall be taken by the equity of the statute ; so that in this case the rent shall be apportioned. The same law is, if the tenant exchange parcel of the tenancy in severalty in fee. If the tenant enfeoff the lord of the moiety of the tenancy in severalty, the rent is not appor- tionable by this statute ; but it is apportionable by the common law, if the rent be severable. 678. And if before the statute the villain of the lord had purchased parcel of the tenancy, and the lord had entered, SfC. or if the lord had recovered parcel of the tenancy by false oath, or upon a false title, SfC. the rent was apportionable at the com- mon law, if it were severable. And if after the statute, two coparceners had been of the tenancy, and they had made partition, the rent had been apportionable, if it had been a rent severable, 8$c. C79. But by force of these words, viz. pro par- ticula ilia, a mesnalty shall not at this day be apportioned. As put the case : There be lord, two joint mesnes, and tenant, of one acre of land by fealty and twelve-pence rent, and one mesne grunts that belonging to him of the mesnalty to a stranger in fee, and the tenant * attorns to the * [J30] grantee, the mesnalty shall not be apportioned ; for the words, pro parti cula ilia, are intended of the terre tenant, fyc. G80. And the said statute of Quia emptores ter- rarum, saith, secundum quantitatem tcrrce, which o 5 130 RESERVATIONS. shall be intended the value of the land ; and not the quantity ; as perhaps one acre is worth more than another acre, by reason of a mine, fyc. or otherwise, it shall be apportioned according to An. 1 1 Lib. the value, fyc. And if after the apportionment Ass. P. 3. a hougg U p 0n t] ie land fall down, yet it shall be holden as it was apportioned, §c. So is it if parcel of the land which is apportioned be in- croached upon by the sea or drowned thereby. Qucere, If it be drowned by the sea in such manner that it. cannot be regained by any means (J*). T. 9 Ed. 4, 681. And if there be lord and tenant of two .p. an y. nouses ^y f ea ]ty ant { { w0 shillings rent, and the tenant since the statute enfeoffs a stranger of one of the houses, and the rent is apportioned, and afterwards the house falls or is burnt, yet the rent remains and the lord may distrain for it upon the land where the house stood, fyc. 682. And in certain cases a rent shall be appor- tioned for a time ; as suppose there be lord and a feme tenant by rent severable, and the woman takes a husband, who discontinues parcel of the tenancy in severalty in fee, and the rent is appor- tioned, and the husband dies ; and the wife recon- tinues this parcel, which was discontinued by her husband, in a cut in vita brought against the (/) Rent service being but a return i"or the land, and being apportioned where part of the tenancy is evicted by an elder title, it is apprehended it would be apportioned in the case put in the text. The proportion of rent payable for the pnrt of the land drowned, ought to be deemed extinct with the profits to be derived from that land ; this would neces- sarily happen in the case of an entire tenancy, since the lord'> only remedies for his services must of course expire with the subject upon which those remedies were to be exercised. RESERVATIONS. 130 feoffee, now this apportionment is defeated and determined, Sfc. The same law is of a feoffment of parcel of the tenancy made upon condition, Sfc. mutatis mutandis, fyc. 683. So shall it be if parcel of the tenancy in severalty be recovered by erroneous process, or by false oath, or upon a false title, fyc. and after- wards it is recontinued, $c. the statute saith, that the feoffee shall hold now of the lord ; and if it be of part, then for that part, Et tlecidat Capitali Domino ipsa pars servitii, fyc. 684. If there be lord and tenant of three acres M.22 Ed.4, of land by homage, fealty, suit of court, and ??•_ r , escuage, and the rent of a horse payable at the lb. 12. feast of Easter, or by the rent of a hawk, or a rose, Sfc. And the tenant after the statute en- feoffs one man of one acre parcel of the tenancy, and another man of another acre parcel of the tenancy ; in this case, every of them shall hold of the lord, by homage, fealty, and suit ; but the escuage shall be apportioned, and the relief when it falls as a rent severable, shall be apportioned, and the lord shall have but one horse, or one rose, or one hawk of them all not apportionable : and he shall make one avowry upon them all for such entire rent, although the lands be severable, as he might have made at the common law for such en- tire rent, <$v. And although by the said statute the feoffee of parcel of the tenancy in severalty shall hold of the lord, pro particula ilia, yet before P. 1 Ed. 5, the lord is bound to avow upon him, he ought to fo ' *>• give notice to the lord ; and yet in right he holds of the lord immediately ; and the lord shall have oG 130 RESERVATIONS, ward, or relief, or a cessavit, or assise of the rent * [131] before notice given * to him ; but the feoffee shall H. 8 Ed. 4, no t i iave acquittal before notice, $c. The notice 47 Ed. 2, ought to be given in this manner, viz. to show the 1*0. 4. feoffment to the lord, and if the tenure be by homage, to tender to him homage and fealty, and all the arrearages of the rent ; or otherwise thi lord is not bound to take the notice ; for the feoffor shall not be discharged before the arrear- ages paid ; and the feoffecvf parcel ought to ten- der all the arrearages, fyc. And if there be two joint feoffees, it behoveth them to give their no- tice jointly. An infant, who is a feoffee, shall give notice ; and an infant who is lord shall take notice, Sfc. » 685. And where a husband is seised of a seignory in the right of his wife, if the tenure be by homage, he and his wife jointly shall take the notice : ,but if the tenure be but by fealty and rent, the husband alone may take the notice : but if a feme sole be enfeoffed of parcel of the tenancy, and before notice given she takes a hus- band, in such case, the husband and wife ought to give the notice jointly. And an abbot who hath a seignory in right of his house shall take notice, and an abbot who is feoffee of a tenancy shall give notice, Sf-c. But he who hath the whole M. 35 Hen. tenancy, or parcel of the same in severalty, by 6> ,2 ' matter of record, as by recovery, or by fine, shall not give notice, fyc. for the lord is bound to take notice thereof, Sfc. 686. But if a fine be levied sur conusant de droit of a tenancy, and the conusor is in possession uf RESERVATION'S. 131 the tenancy, the lord is at liberty to take which of them he will for his tenant before the conusee enters, fyc. But if at this day a tenure be made by way of reservation, the reversion of the thing out of which the reservasion is made, and of the estate which is made, must remain in him who makes the reservation, except in special cases. (587. And therefore if there be two jointenants H. 38 Ed. 3, of land, to have and to hold to them and the heirs (7- 4J) of one of them, and they join in a gift in tail to a stranger, reserving rent to him who had but an estate for life, this reservation is void to make a tenure. For although if the donee in tail die with- out issue during the lives of both of his joint do- nors, the jointenant for life shall have the laud again ; yet that doth not prove that any reversion of the same land, after the gift made, remains in him who had but an estate for life at the time of the gift : For if at this day a man seised of land enfeoff a stranger thereof by deed indented, reserving to him and his heirs ten shillings rent, payable, fyc. upon condition, that if the feoffor pay to the feoffee ten pounds, fyc. then it shall be lawful for the feoffor and his heirs heirs to re-enter ; in this case the feoffor may have the land again ; and yet the reservation is void as to making a tenure, fyc. 088. But because it is by deed indented, the feoffor shall have the rent reserved as a rent-seek ; and to this purpose it shall take effect in the feoffor as a grant of the feoffee, insomuch that if it be reserved with a clause of distress, the feoffor shall have it as a rent-charge. So it appear* that RESERVATIONS. * [132] when two jointenants of land and to the * heirs of" H.31 Ed.3, one f them, join in a gift in tail, nothing of the A. 14 Lib. reversion of the land remains in him who had Ass. P. 14. |^ ut an e gtate for life, fyc. And yet if lessee for life be of land, and he make a gift thereof in tail to a stranger reserving rent, tyc. this reservation makes a tenure betwixt him and the donee, Sfc. as long as the gift continues in force ; because by the gift he hath gained to himself a reversion in fee, in the same land whereof the gift was made fyc. 68g. But put the case, that two or three join- tenants are of land, to have and to hold to the heirs of one of them, and they join in a gift in tail, without saying more, the donee shall hold of them all, by the like services as they hold over : but if they reserve new services to them all upon such a gift, quaere how the same shall enure, ( g;) Sfc. 690. If there be disseisor and disseisee of an acre of land, and they both enter into it, and (g) It seems doubtful whether this qiutve be made be- cause the reservation is to the donors onl\', :>;id not extended to the heirs who would take the reversion ; or because made to the donors and their heirs generally, so that the services might go to another person than the heir entitled to the re- version. In either rase it would be apprehended, that after tlw death of the survivor of the donors, the services as the com- pensation for the land, must go to the heirenti'led to the reversion ; but that in the first case, as the new services ap- pear to expire by the death of the surviving donor, the donee would thenceforth hold of the reversioner 33 he held over: while in the other case, the reversioner would take the new services; sed vide s. 697 post, & c. Some observations on re- servations of rents in leasts far lives and years will be found ■in Co. Litt. 47. a. et nrtis, and Com. Dig. Rent, B 5, but they do not exactly apply to the present case, as no services are due for those particular estates, unless expressly reserved. RESERVATIONS. 132 deliver an estate thereof to a stranger in tail, to hold of the disseisee and his heirs, by homage, fealty, and escuage, this is a good tenure ; because the disseisee is the donor, and the reversion re- mains in him ; because he was remitted before the livery of seisin made to the donee in tail, §c. But if they had given it in tail to hold of the dis- seisor, it had been a void tenure ; and then the donee should have held of the disseisee by the like services as he held over ; causa patet. Chji . If a man seised of one acre of land in fee, lease it to a stranger for years, and the lessor and lessee join in a gift thereof in tail to a stranger, reserving 10 s. to the lessor, the same is a good tenure: but if lessee for b'fe of land join with his M. .3 Men.-, lessor in a gift in tail of the same to a stranger, ^, „ .. by deed containing words of confirmation, to hold 2. of the lessor by ten shillings rent, quccre there- * iivu ~- of(/>). If cestui que use in fee of lands enter upon T.i-Hm.fi, his feoffees in use, and lease the land to a stranger '9- for life, according to the statute of R d . 3. in such 214. a.] case made, reserving ten shillings rent, the same is a void reservation to make a tenure ; fcr the reversion of the same land is not in the lessor, but in the feoffees, and they are strangers to the lease and the reservation, fyc. But if such lease and reservation be by deed indented, then the lessor shall have the rent, as a rent-seek, Sfc. (/t) It is conceived that under the general rule, where there is no reservation the donee shull hold of t lie donor as he holds over, the donee in this case would during the life of the tenant for life hold of him as lie held over ; and after- wards of the other donor by the ttu shillings rent; vide Co. {.itt. 214. a. & 213. b. 132 RESERVATIONS. 692. If cesluy que use hath leased the land In use for a term of years, reserving rent, &;c. by parol ; in such case, the lessor shall not distrain T.27 Hen.8, for the rent reserved, because no reverson rc- [Dtmgeyv. Inams in him, SfC. But it is said, that he may Angove, 2 have an action of debt for the rent reserved a0 /i ja ' against the lessee, because it is but as a contract. As if a man sell lands or tenements for a certain sum of money by word, he may have an action of debt for the money, Sec. But it hath been holden, that in such case, the lessor shall not have an action of debt for the rent reserved, except it be made by deed indented : and the reason as it seems is, because it cannot be taken as a contract, since it is made by reservation : and then if the lessor will take advantage thereof, it behoves him to have it as a rent-seek ; and then * [133] it ought to take effect in* the lessor as a grant T. 45 Ed. 3, f t j ie i essee ; anc l arent cannot take effect in any M. 28 Hen. person by way of grant, by word, except in case of *> 3- partition, Src and other special cases, Sec. tamen Partition, 5. queere, for such leases with reservations are com- monly made by cestuis que use, by word, (/), Sec. (j) Whatever construction might have been put upon such leases when the author wrote, it seems understood, at this day, that on a parol demise by a cestui que trust of land, (who is now what cestui que use was then) the lessor would possess the same rights against his tenant as if seised of the legal estate. According to the old law this was clearly the case where the lease was made by indenture ; Litt. s 58. and Co. Litt. 47. b. Wilkins v. Wingate, 6 T. R. 62, and it lias long been settled that after payment of rtnt by a tenant he shall not be permitted to object to his landlord's title ; (2 Phill. on Evidence, 230, 5th edition) and it appears now established that this, as between themselves, is consequent upon the mere contract between the landlord and tenant with- out any thing further ; Phipp$ v. Sciilthorpe, 1 Barn. & A. 50. RESERVATIONS. 133 693. If there be lessee for twenty years of lands or tenements, and he grant the same lands or tenements to a stranger for parcel of the years, reserving to him twenty shillings, $$c. in this case (P- qy.) 10 the grantor shall distrain for the rent reserved, or r py^'go- shall have an action of debt, at his pleasure ; and b. pi. 70.] the reason is, because by common intendment he is to have the land again, after the determination of the years granted by him, because he hath granted but parcel of the years, so that the re- mainder of the years are in him. 694. Jf there be disseisor and disseisee of one acre of land, and the disseisee releases all his right in the acre to the disseisor, to have and to hold the same acre to him, and his heirs of his body, reserving to him and his heirs ten shillings rent, payable, fyc. it is a void reservation to make a tenure at this day ; for notwithstanding such release enures by way of making an estate, yet M. 7 Ed. 4, the fee of the land, which is in the disseisor, shall ' u * not be devested out of him by such release, ex- cept it be by deed indented ; and if it be, then qucere thereof (A). For then it seems the releasor shall have the reversion of the fee by conclusion. Yet if there be two joint disseisors, and the dis- seisee releases to one of them, he shall hold out his companion, 8$c. C95. If there be lord and tenant of land by fealty and twelve-pence, and the tenant leases (k) This qititre is now unimportant; it could be solved only by a judicial decision, and the reasons either way appear so nearly balanced that in whichever it might be decided.no great violence would be dune to cither principle or prece- dent. ]33 RESERVATIONS. the tenancy to a stranger for life, without saying more, in this case, the lessee shall hold of his lessor by fealty only, and not by the services by which his lessor holds over : but if the lessor had reserved any service or rent upon the lease he should have had the same : but if at this day F nothing be reserved upon a gift in tail, the donee shall hold of the donor by such services as he holds over : but if a man seised of land in fee, lease it for life, reserving ten shillings, and the lessee gives it to a stranger in tail, and doth not reserve any thing upon the gift in tail, qu&re how the donee shall hold the same, fyc. (I). 6q6. Now is to be shewn what things may be reserved to make a tenure. And as to that, know, that all such things as lie in feasance, or in render o may be reserved in order to make a tenure, for such things may be called rent service. As if before the statute of Quia emptores terrarum a man seised of land had thereof enfeoffed a stranger, to hold of him and his heirs to scour the ditch of the feoffor, SfC. or to cover his hall, or to repair his kitchen ; or to give to the feoffor and his heirs when he should come unto his manor of Dale, a bever ; or to find a chaplain every Friday in the h week, yearly, in his manor of Dale, S?c. or to give to the feoffor, tyc. ten shillings rent, §c. or a horse, (J) This point is not clear : but by the gift in tail the lessee makes a disseisin, and gains the reversion in fee by wrong ; and thus stands in the place of his lessor, and is liable to the seivices due in respect of the fee; therefore it seems most consistent with principle that the donee should hold of the lessee by those services; vide Co. Litt. 23. a. and Sir M. Hale's note there. RESERVATIONS. 133 or grass, or arrows, or a spear, or a lance, or a cup of silver, or a pair * of spurs, or a ring of gold or * [l 34] silver, fyc. or a quarter of wheat, or of barley, iSr. Of all the things aforesaid a tenure may be made by way of reservation, and of all other things which lie in feasance or render, a tenure might have been made by reservation upon a feoff- ment, Sj-c. And at this day a tenure may be made by reservation of such things, upon a gift in tail, or a lease for life, S?c. 697. And when the law makes the tenure and M. 10 Ed.4, reservation, then the heirs of the feoffor, donor, or lessor shall have the sendees as well as the feoffor, donor, or lessor himself shall have them ; but if the reservation of the service or rent, 8$c. be made by the express words of the party, fyc. then the heirs of the feoffor, donor, or lessor shall not have the services, or rent fyc. reserved, ex- cept it be reserved to them by express words, §c. C98. And therefore, if before the statute of Quia emptores terrarum, there had been lord and tenant of land and tenements by knight's service, and the tenant had enfeoffed a stranger of the tenancy without reserving any thing ; the feoffee and his heirs should have held of the feoffor and his heirs by knights service ; if the feoffor and his heirs had held over by such service : but if the feoffor himself had held over by knight's service during his life, and no longer, and after his death his heirs should have held by fealty only, or by other services ; then the feoffee and his heirs should have held of the feoffor and his heirs by the like ■ervices, mutatis mutandis ; and so shall it be if 134 RESERVATIONS. the tenant at this day gives the tenancy in tail without reserving any tiling ; mutatis mutandis, S,c. 699. But if the feoffor, fyc. or donor, fyc. ■ or lessor for life had reserved to him upon the feoff- ment before the said statute, or do reserve to him upon a gift or lease, since the said statute, An. 26 Lib. knights service, or fealty and ten shillings, or p S \i Kd &> c ' ana " dieth : his heir shall have only Assise, 86. fealty, because the reservation diu not extend to the heir of the feoffor, donor, or lessor. But if in the same case the feoffor, donor, or lessor had granted his seignory or reversion, SfC. and the tenant had attorned to the grantee, the grantee should have had all the services, and the rent re- served fyc. during the life of the grantor, 8$c. 700. And if a man seised of two acres, lease the same to a stranger for life, yielding for one acre, and shews which acre in certain, ten shil- lings to the lessor and his heirs, and yielding for the other acre ten shillings, S;c. to the lessor ; and the lessor dies, and the reversion of both acres descends to his heir, the heir shall not have the ten shillings last reserved unto the lessor, Sfc. 701. And if a man seised of land, since the statute of Quia emptores terrarum, gives the same land to a stranger pro homagio fy serxitio sua ; to have and to hold the same acre to him and his heirs of his body begotten, in this case the issue of the donee shall do fealty only unto the donor and his heirs ; and the heirs of the donor shall D35] have * only fealty of the donee and his issue, 8p. 702. And it is to be known, that a reservation of things which lie only in prendre or usage, can» RESERVATIONS. 135 not make a tenure. And therefore, if a man seised of land and wood, before the statute of Quia emptores terrarum, had thereof enfeoffed a stranger, or since the said statute gives the land and wood in tail, or leases the same for life to a stranger, reserving to the feoffor, donor, or lessor common for four beasts in the same land, and to suffer the feoffor, donor, or lessor to take yearly in the same wood three loads of estovers for fuel ; this reservation is void to make any tenure ; and the reason why such things cannot be called a reservation is, because the feoffor, donor, or lessor cannot take profit thereof but by his own act, and a man cannot do service to himself; and there- fore such reservation is void, if it be not by deed indented, and then it shall take effect by way of grant of the feoffee, donee, or lessee. 703. And therefore, if a man seised of land enfeoff a stranger thereof by deed indented, or give the same land in tail, or lease it for life to a stranger by deed indented, reserving common sans nombre to him and his heirs, this is a good grant for ever if it be reserved upon a feoffment : but if it be reserved upon a gift in tail, then it shall enure and take effect by way of grant of the donee, and shall be good and effectual during the life of the donee, and no longer, d^c. The same law is if it be reserved upon a lease for life by deed indented, &;c. 704. And the donor, grantor, or lessor can- II. 42 Ed. 3, not reserve to themselves a less estate in the ' 5 ' ^-'' thing which they part with by the gift or, SfC. than they had in the same at the time of the gift 135 RESERVATIONS. or, Sfc. by matter in deed or writing. Qucere, if it be by writing indented (m). [705.] But if such reservation be by fine, it [i. e. the fine] shall be good by way of conclusion, fyc. And therefore if a man seised of land in fee, give it to a stranger in tail, or lease it to a f stranger for life, the remainder to the donor or lessor for life, or in tail, the remainder over to a j tranger in fee : in this case, the remainder to the donor or lessor is void, and yet the remainder over to the stranger is good, Sfc. And the same law shall be, if the donor or lessor had had but an estate for years, or for life in the land given, or leased, fyc. at the time of the gift or lease, with a remainder over, in manner and form as before said ; for when lessee for years or for life makes such a gift or lease, Sfc. they which take by such gift or lease, cannot disable their donor or lessor from making such a gift or lease to them, and so it doth not lie in them to plead that their donor or lessor had not a fee at the time of such gift or lease made, Sfc. But notwithstanding such gift h or lease made by lessee for years, or for life, 'he or they who hath or have right may defeat the same by entry, or by action, as their case is, 8fc. 706. If husband and wife and a third person (m) The doctrine of this section is an illustration of the rule, that a man cannot grant to himself; and is also a neces- sary consequence of those other rules, that an estate of free- hold cannot be limited to commence in futuro, and that a remainder cannot be created but at the same time with a par- ticular estate. The reservation being made by deed indented could not vary the rule ; see the case of a fine, Shep. T. 17. 'Hie object may now of course be effected, by means of a conveyance to uses. RESERVATIONS. 135 be jointenants of land, or tenements in fee, and lease the same lands or tenements by deed poll to a stranger for life, saving the * reversion to * [13^3 them three, and to the heirs of the husband, notwithstanding this the reservation shall be to them all three jointly in fee. The same law is of things which lie in grant, mutatis mutandis, ex- cept in special cases ; but if such reservations were made by fine, they would be good enough, except in special cases. 136 CONDITIONS. CHAPTER XI. Of Conditions. [Preston's Shop. Touchst. chap. Condition. Viner's Abr. Bacon's Abr. and Comyns's Digest, title Condition.} 707. j\ OW to speak of conditions. First know conditions may be annexed to things inheritable, to freeholds, and to chattels real and personal. To things inheritable and freeholds ; as suppose a feoffment or a gift in tail, or a lease for life, or for the life of another, be made of lands or tene- ments upon condition ; or if a grant of a rent or common, $c. be made in fee tail, or for life, or for another's life upon condition, SfC. To chattels H.i4.Hen.3, real ; as if a man seised of land lease it by in- II "27 II 8 Venture to a stranger for the term of five years, (3- qy-) upon condition, that if the lessee pay to the lessor rdcr - ' • within the two first years ten marks, then he shall 2. c. y. J have the fee in the land let, or otherwise but an estate for five years, and livery of seisin is made according to the deed ; in this case it hath been [Sed. vide holden, that the lessee hath a fee-simple condi- 216 a. &n. tionally presently ; which cannot be, because the (2.)&2i6.b. words of the condition are verba de futuro, viz. Estates tnat ^ ne P a y» § c - tnen ne sna ^ ' wve ? ee - 235, &c. 3 Prest. Convey. 509.] M. 18 Ed 3, yoS. And therefore if a man seised of land in fee, lease it to a stranger for years, upon condition that if the lessee be ousted of the land within the CONDITIONS. 136 f'cfm by his lessor, then he (the lessee) shall have the fee, fyc. Now if the lessee during the term be put out by a stranger, without the assent of the lessor, the lessor shall have an assise of this ouster, H.i4Hen.8, and not the lessee ; for in such case the freehold ' doth not accrue to the lessee ; but when the con- dition is performed, and at all times before the condition performed, the freehold resides in the lessor. And yet if a man seised of land, lease it to a stranger for life, and grants the remainder over to the right heir of J. S. which J. S. is then T. 9 Hen. 6, alive ; in that case the fee is in abeyance, viz. in £j*' „ the consideration of the law, and is in no certain fo. 3. person ; and the reason in that case is, because the T - 12 "* n> 7* remainder is granted by words in the present tense, and also in this case the freehold is not to be put in abeyance : And in the principal case, if the freehold and the fee, Sec. should not be in the lessor, 6fc. until the condition be performed, then it would follow that the heir of a disseisor by his act might deprive the disseisee of his action (a),and all other persons who have a right of action to lands or tenements, by such means, the tenant of the freehold by his own act might deprive them of their actions; for the writ * of Entrc * [137] en le Per, and such other actions ought to be (a) Fr. text " hajre del disseisour par son acte mittera le dhseisk de son action ;'' formerly rendered " shall pnt the disseisee to his action :" but the descent froin the disseisor had already done that ; and the conclusion of the section renders the meaning clear, that the freehold would be put in abeyance and the disseisee thus deprived of his action, be- cause there would he no tenant againtt whom he could bring his writ. The subsequent clause, " poit eux mitler d'liiur action" was turned in the same way. 137 CONDITIONS. brought and pursued against the tenant of the freehold, fyc. 709. But if a parson of a church be seised of glebe-land in the right of his parsonage, or vicar- age, to which land a stranger hath a right of action, and the parson or vicar dies, in this case, during the time of the vacancy of the church, he that hath right of action shall not use or follow his action, because during the vacancy the freehold is in no person, 8fc. The same law is, as it seems, if such a parson, or vicar, resign his benefice into the hands of the ordinary ; in this case, during the time of the vacancy, he who hath a right of action to the glebe-land cannot commence his action, fyc. and yet the church becomes void by the act of the incumbent, Sfc. But that is a special case ; and the same law shall be in such like and special cases, fyc. H. 7 Ed. 3, 710. If a man seised of land in fee, lease it by indenture to a stranger for ten years, yielding five pounds by the year, and the indenture is, that if the lessee will to hold beyond the ten years to him and his heirs, that he shall pay twenty pounds by the year, and livery of seisin is made to the lessee accordingly ; in this case, for the rent behind within the first ten years, the lessor may well have an action of debt, which proves that the freehold and fee are not in the lessee before the ten years ended ; but if when the ten years be past and ended, the lessee continues in possession of the land, and occupies it by force of the inden- ture, then he hath the fee, and shall pay twenty pounds by the year as a rent-seek. CONDITIONS. 137 x 711. But if a man seised of land lease it for M. 50 Ed. 3, life, yielding to him a rose for the first six years, J°* 2 7- and if the lessee will hold the land over the six 218. b. years, that he shall pay three marks by the year ; in tliis case the lessee hath the freehold immedi- ately, Sfc. And guardian in knights service may grant the wardship of the body and land, or of either of them, upon condition. Tenant by statute v merchant, and tenant by elegit may grant their estates, or parcel thereof, upon condition, fyc. 712. And conditions may be annexed to chat- tels personal. And therefore if a man sell twenty oxen, or other chattels moveable or immoveable, upon condition, that if the seller go to Rome within one year then next following, then the g vendee shall pay to him for the oxen, or other chattels twenty pounds ; or otherwise but forty shillings, Sfc. this is good, §c. and the vendor shall not have the twenty pounds, fyc. if he do not per- form the condition, $$c. And a man may bail goods upon condition, Sfc. 713. As if a man contract with a physician, or surgeon, that if he shall cure such a one, and name him certain, of such a disease, and name the disease, he shall have ten pounds, the same h is a good contract conditional. If a man sell a m. 44 Ed. 3, house without the land upon which it is built for fo - 2 4< twenty pounds, to be paid when the vendor hath removed the house to such a place, at his own costs, and name the place, Sfc. the vendor shall not have the money before he hath removed the house according to the condition, Sfc. 714. And the retainer of a servant may be p t CONDITIONS. * [138] upon condition, 8fc. * And know, that my Master Littleton in his third book, in the chapter of Estates, hath shown what conditions ought to be by deed, and what conditions may be without deed, fyc. And in the same chapter he hath shewn divers and many other good and necessary cases concerning conditions, fyc. 715. And charters concerning inheritances may be delivered upon condition without deed, and yet they are not chattels : the retainer of a ser- vant according to the statute of labourers, upon condition, is good without deed, 8$c. But a rent cannot be granted for years upon condition, with- out an indenture, if the grantor will take advan- tage of the condition, fyc. The same law is of an advowson in gross, common in gross, and other things which cannot pass without deed, Sfc. Iil. 6 Hen 7, 716. It hath been holden, that if a man enfeoff M 4. Ed a a stran S er °f l an d an d tenements, to reinfeoff him fo. 36. and his heirs, and the feoffor dies, and his heir M.7Hen.6, re quj res the feoffee to reinfeoff him, and he re- T. 44 Ed. 3, fuses, for which the heir enters, and the feoffee fo. 19. brings an action of trespass, that the heir shall plead this feoffment with the condition without showing the deed thereof, because it is in an H.i7Heu.7, action of trespass, in which the freehold is not to T ' tt be recovered: but the law is contrary at this 9. day, for if in an action of trespass for breaking his 6 >2* close, 8fc. the defendant plead, that the place in which, SfC. was his freehold at the time. Now if the plaintiff will conclude him. from so pleading, by reason of the feoffment of the ancestor of the defendant (whose heir he is) with warranty, SfC. CONDITIONS. 138 and rely upon the warranty, it behoves him to show the deed thereof, notwithstanding that it be in an action of trespass, fyc. But in many cases, divers persons to whom a deed doth not appertain shall take advantage of a condition annexed to the freehold, and also of things which lie in grant, without showing the deed: and therefore a wo- M.3He«.6, man may demand her dower of a rent-charge, or J^ 1 " ^j a common in gross, which is certain, fyc* without to. 23. showing the deed thereof, SfC. 717. Now it is to show at what time conditions ought to be annexed to inheritances, freeholds, or other things, to avoid and defeat the same. And as to that know, when a thing executed shall be defeated and made void by a condition, it be- hoveth that the condition be annexed to the same thing at the time of the executing thereof, other- wise, as to that purpose, it is worth nothing. But it is otherwise of things executory, except in special cases, fyc. 718. And therefore if there be a disseisor of An. 34 Lib. one acre of land, and the disseisee releases all his Ass - P- 44- . , if. 171/- \i An. i7Lib. right to the disseisor by deed (as is necessary), and Ass. p. 1. afterwards it is covenanted between them by in- An - 43 Lib. . . . . Ass. p. 1 ^. denture, that if the disseisee pay to the disseisor four pounds before the feast of Easter then next following, then the release shall be void and of no effect, Sfc. And the disseisee pays the money according to the indenture, yet the release is good and effectual, and shall not be avoided by such covenant or condition, fyc. because the release takes effect before the condition or covenant begins. * But it seems, that by the payment of * [139 J * 3 139 CONDITIONS. P. 44 Ed. 3, t j le money, fyc- the disseisor is seised to the use P.2i Hen. 7, of the disseisee, Sfc. tamen qucere (b). But if such B 5' indentures and release had been first delivered as the deeds of the parties simul fy semel, then such condition or covenant had been good to avoid the P. 42 Ed. 3, release, Sfc. And so should it have been if such condition had been contained within the release, if the release had been by deed indented. The same law is of a release which goes and enures by way of enlarging an estate, and of a release which enures by way of extinguishment of a rent or common, fyc. or to determine a title of entry, and of feoffments, gifts, grants, leases, confirma- tions, Sfc. and of sales, contracts, bargains, and retainers, Sfc. mutatis mutandis. But otherwise it is of things executory, except in special cases, 8$c. An. 43 Lib. 719. And therefore if a man enfeoff a stranger T7H 4 6 °^ certa ' n l ana< an d tenements with warranty, and 46. afterwards the feoffee grants to the feoffor by deed. that if he be impleaded of the same land, §c. he will not vouch him by force of the same war- ranty, this is a good grant, because the voucher is executory. 720. If I be disseised of one acre of land, and my collateral ancestor releases to the disseisor with warranty, and dies without issue, and the warranty descends upon me ; and afterwards the (6) Whatever construction the Court of Chancery nsight have put upon such a deed prior to the statute of uses, it could not now be held a bargain and sale of the use. And could it take effect as intended, the avoidance of the release would still leave the disseisor possessed of the land and the use, and merely restore to the disseisee his right of entry or action. CONDITIONS. 139 disseisor grants to me by deed, that if he be im- pleaded he will not help himself, nor take ad- vantage by way of plea of tliis release, nor of the warranty contained therein ; this is a good grant, because it is made of a thing executory, Sec. 721. And if a man seised of lands and tene- ments lease them, Sec. to a stranger for life, in M. gHcn.6, this case the lessee is punishable for waste: but |j jj if the lessor, after the lease, by deed grant to the 7, 33. lessee that he thall not be punished for waste, it TI ; If 3 ' " ' Waste, 73. is a good grant ; because it is made of a thing M. 4 Ed. 4, executory. It appears how the same law shall be in all like cases, Sec. 722. Now there are two manner of conditions ; that is to say, conditions in deed, and conditions in law : of which my Master Littleton hath spoken in his third book, in the chapter of Es- tates. But it is to be known, that there are three manner of conditions in fait, which are not good, viz. conditions against the law, conditions repugnant, and conditions impossible. And know, that of estates made upon conditions against the H. 4 Hen. 7, law, the estates are good, and the conditions are 4 ' void ; if the estates do not commence by the con- ditions, for then both arc void, viz. the estates, and also the conditions, except in special cases, Sec. 723. And therefore if a man seised of land H. a Hen. 4, enfeofF a stranger thereof, Sec. or make a gift in ohtl S- ! 3« tail thereof, or make a lease thereof to a stranger, upon condition, that if the feoffor, donor, or lessor, kill ,/. S. who is not an enemy of our lord the king, then it shall be lawful for him to re-enter ; the condition is void, and the estate is good. p 4 139 CONDITIONS. The same law is of a rent, common, and other* tilings which lie in grant, fyc. [And so it is] 724. If a feoffment, gift, grant, lease, or, fyc. be made upon condition, that if the feoffor, donor, or grantor, or lessor, burn the houses of T. K. L 1 ^] fyc. it shall be * lawful for him to re-enter, fyc. 725. The same law is, if such condition be to be performed on the part of the feoffee, donee, grantee, or lessee, 8$c. But if a lease for life or years be made of land upon condition, that if the lessee kill J. S. within the term, then he shall have and hold the land leased, to him and kis heirs for ever. Now notwithstanding that the lessee do kill ,/. S. within the term, yet his estate is not enlarged thereby ; because the condition is against the law, and the estate begins to be en- larged by the performance of the condition : but notwithstanding such condition, yet the lease is good, because that does not begin by the condi- H. 4 Hen. 7, tion, fyc. "kn 4 8 Ed 4 ^ ut ^ an °blig at i° n be indorsed expressly with 15. such a condition as is against the law, the obliga- 2 ' 4 ' 3 ' tion, and also the condition, are void. An.9Hen.4, 7 2 6. As if a man be bound that he will keep Condition,®, the obligee without damage, and doth not show in what thing, such condition is void ; because he may have damage for committing treason, murder, or felony, fyc. which are things against the law ■ and also it is against the law to keep a man from damage for such things, and so the condition is void. But the obligation is not void because such things are not expressly rehearsed within the con- dition, and so it cannot be expressly said, that CONDITIONS. 140 the will of the obligee was, that the obligor should save him harmless for such acts done against the law, fyc. 727. And if a gift in tail be made of land, §c. upon condition that the donee shall discontinue the same land, $c. it is a void condition, because it is against the statute of Westminster 2. cap. 1. de donis conditionalibus. fyc. 728. If a feoffment be made to J. S. of land, upon condition that he shall enfeoff the abbot of Westminster thereof, the condition is good, be- cause the feoffee may perform this by the leave of the king, and the lord of whom the land is holden ; notwithstanding that the condition is prima facie H.^SEd.j, against the statutes of Mortmain, SfC. And it is (T^^* said, that if a gift in tail be made, upon condition R 8Hen.C, that the donee may alien for the profit of his 4- lS " issue, that this is a good condition, notwithstand- ing the statute of Westminster 2. cap. 1. de donis, Sfc. because the statute was made for the benefit of the issue of the donee, and this condition is for the benefit of the issue in tail, fyc. 729. And if a lease for years be made upon An 6 Rica, condition, that if the lessor alien the reversion Coiu " tio "> 19. within the term, the lessee shall have the fee ; and the lessor grants the reversion in fee to a stranger by fine, now the lessee shall not have the fee by this condition, for the freehold and the fee is in the conusee lawfully before the lessee can take it by the condition ; tamen quccrc, if the lessor had granted the reversion by fine to a stranger for life, whether the lessee by force of the condition should have had the fee, dependant r 5 Ass. p. 15. 140 CONDITIONS. upon the same estate for life. And it seems to 1 some that he should have had it ; because, when the lessor granted the reversion to a stranger for life, he aliened it. And it seems to some, the lessee should not have had the fee, dependant upon the estate for life by such grant ; for they say, that the condition shall be intended of an aliena~ [ 1 4 1 ] tion made of the whole * reversion which was in the lessor, fyc. ideo qucere (c). An. 10 Lib. 730. ]3 ut jf t h e condition be, that if the lessor grant the reversion to a stranger in fee, then the lessee for years shall have the fee ; and the lessor grants the reversion to a stranger in fee by deed, in this case the lessee shall have the fee by the condition. And the reason is, because although the reversion is not in the grantor before attorn- ment, yet the lessor hath granted it, and against this grant he cannot plead, that he did not grant it by the deed. But if the lessee attorn to the grantee, then qucere, if the lessee shall have the fee by the condition ; because he is the person (c) At first sight the former (juare in this section seems to apply to the proposition which precedes it, that however is treated as clear law by Lord Coke, 1 Inst. 378. b. ; and upon a closer examination both the quares in the section apply to the latter part of it only. No express decision upon this point has been found, but the latter opinion in the text, i. e. that the lessee shall not take the fee, is apprehended to be correct ; and for the reason there given, that the coudition must be understood to apply to an alienation of the whole reversion, and not a part of it only. There is a considerable analogy between this case and that of Crusoe v. Bugby, 3 Wils. 'J34, which decided that a condition against an assignment of a Jease for years does not extend to an underlease ; but the resemblance is not perfect, because in the latter case the privity of estate between the lessor and lessee remains un- touched, while in that put in the text it is at least suspended. CONDITIONS. 141 who should take advantage of the condition (d). But it seems to some persons, that this attorn- ment shall not take away his advantage by force of the condition ; because the fee is in him by force of the condition before his attornment, for the attornment cannot be so soon done but that there shall be an instant between the grant and the attornment ; and immediately after the lessor hath delivered the deed of grant of the reversion to the grantee as his deed, the fee is in the lessee by force of the condition, which shall not be de- vested out of him by attornment, except it be by matter of conclusion ; and the attornment is not any matter of conclusion to him, Sfc. But alienare idem est quod alienem Jacere. So that notwithstanding the lessor hath granted the re- version by deed, yet it is net an alienation before attornment; causa -patet, fyc. And if the con- H.2iHen.7, dition be, that if the lessee be ousted within the ',?• [8 Rep. 70. term by his lessor, that then he shall have fee. in LordStaj- Now if the lessor oust him within the term he shall-/" ni s ca, l have fee. But quccre, if the condition be, that if the lessee be put out by a stranger, fyc. (e). (d) As in this case the condition is broken and gone by the execution o! the deed of grant, and the freehold and in- heritance immediately vests in the lessee, his term for years is merged in this greater estate, which cannot be transferred from him otherwise than by livery of seisin or its equivalent, it follows that the attornment of the grantee would be merely void. Thus it is apprehended the case stood at the common law, but since the statute 4 Ann. c. 16. has rendered attorn- ment unnecessary to the conveyance of a reversion, there is 110 room for doubt upon the poiut. (<;) This quart seems to intend that the lessee is ousted by a disseisor, who by that act gains a wrongful fee ; and must therefore be solved by determining whether the lessee can recover the freehold against him. The lessee takes the fee against his lessor when ousted by him: i.bccnuscit fG 141 CONDITIONS. 731. And it is to be known, that condition* repugnant are as if a feoffment, or a gift in tail be made upon condition, that the feoffee, or donee shall not take the profit, or shall not do M. 2; Hen. waste ; or upon condition that the wife of the v l!, fo ' 3 r J feoffee shall not be endowed ; and these are void 8. conditions, and the estate is good. And if a lease for life be made upon condition that the lessee shall not do fealty, it is a void condition. And if a man who hath nothing in black acre, grant to me a rent-charge issuing out of black acre, upon condition, that I shall not charge his person, it is a void condition, for if it were good the grant would be void, and so it is repug- G nant, fyc. T. 7 Hen. 6, 732. But in the same case if the grantor, at *>• 46. t h e t i me f tne g ran t, had been seised of black acre in demesne, or in reversion, the condition had been good. If a lease for life of land be made upon condi- tion, that if the lessee be impleaded of the same land, he shall not vouch his lessor ; it seems this is a good condition, yet it is said it is not, because H P. 6 H«n. 7, the reversion in such case is a cause of voucher, Sfc. °* 1 • And if a man seised of land in fee, lease it by in- denture for years, rendering rent, provided always the wrong of the kssor himself ; and 2. because eo instants that the lessor ousts him, co instante the lessee hath fee, and his title is by force of the condition which is paramount the ouster ; 8 Rep. 76. a. (in Lord Stafford's case) and 6 R. a. 20, as stated Co. Lift. 217, a. This second reason applies equally to the case of an ouster by a stranger, and as this momentary seisin would entitle the lessee to enter or main.- tain an assize against the disseisor, the result is that he ac- quires the fee on this ouster by a stranger, equally as in the case of an ouster by his lessee. CONDITIONS. 141 that the lessor shall not distrain for the rent, it is a good condition, because he may have an action of debt for the rent, Sfc. 733. If* J. S. seised of land, lease it to T. K. * [142] for term of life, rendering rent, 8?c. and T. K. being seised of other land, leases the same to J. S. for term of life, upon condition that if J. S. distrain for the rent reserved upon his lease, Sfc. then it shall be lawful for T. K. to re-enter into the land which he leased to «/. S. this is a good condition, fyc. 734. And if a man enfeoff a stranger with T. 7 Hen. 6, warranty provided that the feoffee or his heirs "t 6- An. 34 Lib. shall never have value by force of the warranty, it Ass. p. 44. is a good condition, because notwithstanding that, H-2iHen.6, the feoffee may take advantage of this warranty H.aiHen.7, by way of rebutter, fyc. And if a gift in tail, or a ' ' • lease for life or for years be made upon condition, that the donee or lessoe shall not grant their es- Co. Litt. tates, or any part of their estates to any other ?* 2, person or persons, it is a good condition, by reason of the reversion which remains in the donor or lessor, Sfc. 735. Now to speak of conditions impossible ; as to that know, an impossible condition is void, H. 4 Hen.7, but if such a condition be in defeazance of an £' „ e r. 14rien.fi; estate, the estate shall remain good, but estates 31. shall not be enlarged by impossible conditions : ( C "' , L ' tt- And if an obligation be indorsed with an im- possible condition, the obligation is good and the condition is void. And therefore if a man seised of lands in fee, enfeoff a stranger there- of upon condition, that if the feoffee do not 142 CONDITIONS, go from England to the church of St. Peter in Rome, and return into England within three days next following the feoffment, that it shall be lawful for the feoffor and his heirs to re- enter, the condition is void, because it is impos- sible, and yet the estate is good, fyc. 736. But if a lease for life be made upon such condition, 8jc. that then the lessee shall have the fee in the land, his estate cannot be enlarged by such a condition, because the estate is not to begin to be enlarged but by the condition per- formed, and it is impossible to be performed, eye. And if J. S. be bound to T. K. in an obligation of twenty pounds, upon condition, that if the obligor go ad terrain sanctam out of England in one day next ensuing the date of the obligation, and return the same day into England, %c. this obligation is good, and the condition is void ; causa pat et, fyc. P. so Ed. 4, 737* ^ a man k e bound in an obligation, upon '■ ^ a condition to be performed in France, the con- fo. 12. dition is void if it be such that it cannot be tried. M.4lien.6, But if it can be tried it is good enough, notwith- P.i4Hen8 BtSCO&mg tnat ^ De t0 De performed in France ; 32. as in time of war, divers things done beyond the seas shall be tried by the certificate of the marshal of the king's host, 8?c. 738. If a lease for years be made of a wood by deed indented, and it is covenanted in the deed, that the lessee shall leave the wood in as good plight as it was at the time of the lease made, and during the term the wood is destroyed by a sudden tempest ; at the end of the term the . CONDITIONS. 142 lessor shall not have an action of covenant for non performance of this covenant, for it is not possible for the lessee * to perform it : but if such * [H3] a covenant be made upon the lease of a house, and jj^™? v j the house be thrown down by a tempest during the Burr. 287. term, the lessor, after the end of the term, shall have ^' Llock J'e J an action of covenant for non-performance of the T. R. 650.] covenant ; causa patet : but in such case the lessee shall not be charged in an action of waste, §c. 739. And as to the words which of themselves make estates upon condition, fyc. and of feoffments in mortgage upon condition to be performed on the part of the feoffor or the feoffee, and where the feoffor or the feoffee ought to demand the money, Sfc. and where he who ought to perform the condition, must seek him to whom it ought to be performed, and by what persons, and to what persons the condition ought to be performed, with divers other good and necessary matters apper- taining to conditions, my Master Littleton, who was an honourable sage of the law, hath made good and necessary declarations in his third book, in the chapter of Estates upon Condition, 8f6. 740= And it is to be known that if the words of a condition be, et pro non solution edict. Sfc. it shall M. 6 Ed. 4, be lawful for the feoffor and his heirs to take back ( 21# 93"' the tenements, and to make his profit of them, by these words the feoffor and his heirs may re-enter for non-payment, fyd. The same law is, if the words of condition be ct pro non solutione, the feoffor and his heirs may recipere the lands, for they cannot be otherwise intended, although the word recipere implies a livery to be made of the 143 CONDITIONS, tenements, fyc. Qucere, if the words of the con- dition be, that the feoffor and his heirs, pro non solutione, §c. may retain the lands, Sft: how the words of the condition shall be taken (J 1 ); whether according to the intendment which the law hath of the intent of the condition, or only according to their signification. M. 35 Hen. 741. And therefore if I be enfeoffed of land, ' ' 3 * upon condition that I shall give all my goods (si quez Juerint,) in this case this word (Juerint) shall be taken in the present tense, and not in the past, because it cannot be otherwise intended by the law ; for a man cannot give goods in which he hath no property. And if a man be enfeoffed upon condition that he shall give all the pikes in his pond, (si quae Juerint,) in this case (Juerint) shall be taken in the present tense. 742. If a feoffment in fee be made upon con- dition, that all the doctors in Pmd's (si qui fuerint) shall be on such a day at such a place, now (fuerint) shall be taken in the present tense, Sfc. And the common making of charters is in the perfect tense, viz. by dedi fy concessi ; and yet such words are taken in the present tense. If a man Ibidem per be enfeoffed upon condition, that he shall be non- W •v-'^H 6 su ^ * n a '^ ^is actions in the Common Pleas (si J 3- qruB fuerint) now {Juerint) shall be taken in the present tense : but if a man be enfeoffed upon condition, that he shall give all his goods in London (f) The primitive meaning of this wotd, retain ( -r- • i tij -j " ss * L'ondi- formed. But it m the same case, 1 had paid f ^„ ( l4 _ to the obligee the. ten pounds after the day of 1-9 Ed. 4, payment mentioned in the condition, and he had p 2 Ed. 4,3. accepted * thereof, yet the condition is not per- * [145] formed. And when a man is bound in a greater M - *9 Ed - 4 ' sum of money to pay a less sum at a place cer- t. 9 Ed. 4, tain, the obligee is not bound to accept of the ?§• , , , , . . , . , M.i2Ed.4, sum at another place than is appointed in the f . 24 . condition ; but if he do accept the same at another M. 31 Hen. place it is good, tyc. If /. P.33Hen.6, in the condition. So shall it be if there be a day 18. appointed in certain in which the payment ought M - 2 Ed - 4> to be made, and T. K. receives it at another 36 Hen. 6, day, &-c. 12 - 756. And if a man be bound to J. S. in one hundred pounds to marry his daughter before a certain day, notwithstanding the obligor before the day often offer the daughter to marry her, and she refuses, so that he cannot perform the condition, the obligation is forfeited ; because the condition was lawful, and possible to be done, and was to be done to a stranger, and the obligee did not do any thing whereby it might not be performed. The same law is, if I be bound to C. D. in twenty pounds that T. shall enfeoff J. S. of black acre before a certain day, and T. doth not enfeoff J, S. thereof before the day, I have forfeited my bond ; because by the condition I [Co. Litt. took upon me that such a feoffment should be a 9 " d '"' made, 757. And if I be bound to T. D. in ten pounds, H. 4 Hen. 7, to enfeoff Alice Stile of the manor of Dale before °' 4 ' the feast of Easter ; and before the condition per- formed, and before the day, I * marry Alice Stile, * [147] and the marriage continues till the day be past, the obligation is forfeited ; and although before the feast of Easter I enfeoff a stranger of the 147 CONDITIONS. manor of Dale to enfeoff my wife, and he does so, yet I have forfeited my obligation. 758. But if I be bound to T. K. in twenty P. 1 Ed. 4, pounds, to appear before the justices of the Com- b 3- mon Pleas Odabis Michaelis, to answer to such a one who hath an action there against me, Sfc. and at the day, I come into court and appear, and the plaintiff is essoigned, so that I cannot answer him, in this case, my bond is saved : but if I be bound to T. K. in four pounds to ride to Dale with L. C on such a day, and L. C. will not ride P. 1 Ed. 4, that day, I have forfeited my bond, §c. But if I c 1°t" o*t-j be bound to B. in ten pounds, to the use of T., to M. 8 Ed. 4, *■ 15, enfeoff T. alone of the manor of Dale before such a day, fyc. and I do all I can to enfeoff him, and he will not be enfeoffed thereof, my bond is saved ; causa patet. 759. If a man be bound in twenty pounds to M.22Ed.4, J. s., upon condition that the obligee shall enfeoff d M 17 Ed. 4, a stranger of the manor of Dale, before such a 5. day, Sfc. and the obligee will not enfeoff the • 9 en -7» s t ran g er? fy c . the bond is forfeited ; notwithstand- M. 29 Hen. ing that the obligee is the impediment to the performance of the condition; because the obligor undertook by the words of the condition, that the obligee should so do. But if the words of the condition had been, if the obligee do enfeoff a stranger, SfC. and the stranger had required the e obligee to enfeoff him, and he had refused so to do, the obligation had not been forfeited. T,4Ed.4 ) 22. 76°- If a man be taken upon a capias, and find sureties by bond to appear Octabis Trin. at which day the sheriff returns the writ, and the same day CONDITIONS. 147 a writ of adjournment is directed to the justices, to adjourn the court until Qidndena Michaelis, and the obligor comes, and shews to the court how he was bound to appear on that day, and prays that they would record his appearance ; and the justices will not record his appearance, but bid him keep his day at Qidndena Michaelis, the bond is not forfeited, insomuch that if he ap- pear at Qidndena Michaelis by this appearance he shall save his bond. And if in the same case the action had been discontinued by the demise of the king before Oclah. Trin., and the obligor had not appeared Octal. Trin. yet the bond had not been forfeited, 8fc. 761 . But if J. S. be beund to T. K., that G. F. M. 3 3 Hen. shall appear Octabis S. Trin. in the Common ^, qg'jj. Pleas, in a writ of debt brought by the said T. K. 6, 3. against the said G. F. returnable at that day, and ' " r ° G. F. does appear at that day, and his appearance M. 18 Ed. 4, is not recorded, the bond is forfeited : but if in the lr' „ , 1.9 Ld.4, same case, G. F. die before Octal. Trin. the bond 25. is saved; because the condition is become im- [ Corbet v - (coke, Lro. possible by the act of God. El. (466.)] 762. And in the same case, in an action of debt brought upon the obligation, it is no plea for the defendant to say that the writ was not returned ; if * he that ought to appear hath a day by the * [148] roll: but it is a to pay me a less sum at such a day, and M.2aEd.4, do n °t appoint any place where the payment ' 2 \ «fiH sna '^ ^e, tne ODn g or ought to seek [me], S)-c. and t>, 9. to tender the less sum, according to the con- H. 8 Ed. 4, dition, #c. 23. ' M. i7Ed.4, 782. If a man be bound in twenty pounds, SfC. 5' to stand to the award of J. S. &c. and J. S. makes a void award, yet the obligor must perform it to save the forfeiture of his bond (m) ; if the award be not impossible, or directly against the law, as to * [152] kill a *man or woman, Sfc. or to burn houses, or M. 19 Hen. S f ea } goods, or any such like thing; Sea But the fi, fo. 36. & ' J & *» P.33Hen.6, obligor is not chargeable in an action upon an Q - arbitrament which is void. And in the same case, if J. S. award that the obligor pay to the obligee twenty shillings before the feast of Easter, &c. and the obligor before the said feast tender the twenty shillings to the obligee, and he re- fuses them, and brings an action of debt upon the bond against the obligor, Sfc. he may plead the condition, and the award, and say that he tendered the twenty shillings to the obligee ac- cordingly, and he refused, S)-c. without tendering this money in court; because the obligee might have an action of debt upon the arbitrament for the twenty shillings, and also because the twenty shillings was not a duty to the obligee before the arbitrament. 783. But if a man be bound in twenty pounds, (m) The law is now otherwise; for if the award is void the plaintiff has not any cause of action. Bacon v. Dubarry, 1 Raym.246; 1 Salk. 70; & lSaund.n. 1, p. 103. (4th ed.) in Hayman v. Gerrard. II CONDITIONS. 152 SfC. to pay ten pounds at a certain day, and the P- 7 Ed. 4, obligor tenders the money to the obligee accord- p'.p E(J ingly, and he refuses the same ; yet in an action ' • of debt brought upon the obligation against the fo " „ ' 4 ' obligor, he must plead the condition, and the tender and refusal, and say, that he is yet ready to pay the ten pounds, and tender it in court, because it was a duty before the obligation, and the obligor is not thereof discharged by the obli- gation, but is thereby bound to pay the same upon pain of forfeiting a greater sum, and the obligee cannot have an action to demand the same, but upon the obligation. The same law is notwithstanding the less sura were payable at a place certain, fyc. 784. But if the condition of the obligation be of matter without [the obligation], fyc. as to en- T. 18 Ed. 4, feoff the obligee, or to give to him a horse, a £ r , _ D ' P. 7 Ld.4,4. gown, a hawk, a knife, a spur, a lance, or a cup, M. 47 Ed. 3, Sfc. at a day certain, or any other thing which is ,a 2 9" not parcel of the duty comprised in the obliga- tion, now if the obligee refuse any such thing, SfC. in an action of debt brought upon the obli- gation, the obligor shall plead the condition, and the tender and refusal, SfC* but shall not say*that he is yet ready, $c. But it is said by some, that if the condition of the bond be of a horse, which was due to the obligee before the bond made, by- reason of a sale thereof made by the obligor to the obligee ; or otherwise, as if the horse had been delivered by the obligee to the obligor for a certain time, SfC. or by other means perhaps the horse is due to the obligee by the obligor, fyc. Q6 152 CONDITIONS, notwithstanding that in such case the obligee refuses the the horse, when it is tendered to hin> according to the condition of the bond, so that by that the sum comprised in the bond is not forfeited, yet the obligee shall have an action for the horse as his case lies. But I conceive the law to be contrary ; because the obligee hath bond for the same horse ; except the horse were M.8 Ed. 4, first delivered by a matter in writing, tyc. And the same law is, of all like things, mutatis mu- tandis. 785. If a man be bound in ten pounds to de- liver to the obligee twenty quarters of wheat at - a certain day, and it is not appointed in what place they shall be delivered, the obligor is not bound to carry the wheat with him to every place, but it sufficeth for him to say to the obligee, Sir, * [ J 53] y° ur wheat * is ready for you, where you will have it to be brought to you : and if the obligee will not assign to the obligor a place to which the wheat shall be brought, the bond is saved, fyc And if the obligor at the day bring the wheat to the house of the obligee, and say to him, Sir, I have brought to you your wheat according to the condition of the bond, pray receive it, and the obligee saith he will not receive it there, but at another place which he assigns, and the obligor will not carry the wheat to that place, yet the bond is saved. And in an action of debt brought against the obligee upon the bond, he may plead the condition, and the special matter, fyc. ; and shall not tender the wheat in court, Sfc. And if any thing be comprised in the condition CONDITIONS. 153 of a bond, and it is not limited what person ought to do it, then the obligor or obligee, viz. he who hath the most skill in it ought to do it ; but if neither the obligor nor the obligee have know- ledge to do it, or if each of them hath the like skill, fyc. then it shall be done by the obligor; except in special cases, because the condition of the bond is for the advantage of the obligor. 78G. And therefore if a tailor be bound to me, p - 9 Ed. 4, Sfc. upon condition that if I bring to his shop three ells of cloth, which shall be cut out, and if the tailor make me a gown thereof, that then, fyc; and it is not appointed in the condition who shall cut out the gown, therefore it shall be taken that he who hath most skill shall do the same, which is the obligor, &;c. And if the condition be, that if the obligee bring three ells of cloth to the shop of the obligor, which shall be measured, and it is not appointed by whom it shall be measured, then they shall be measured by the obligor, fyc. ; causa patet, fyc. 787. Now to shew at what time conditions!. 15 Ed. 4, shall be performed, if no time be appointed foir-^ 20 c „ 29 " the performance thereof: as to that, know, if the 6, 54. conditions be to be done only for the profit and benefit of a stranger, and no time is limited when it shall be done, then it behoveth they be done and performed within convenient time, except in special cases. 788. And therefore if a man be enfeoffed of land, upon condition that he shall marry the daughter of the feoffor, and no time is limited when, or within which it ought to be done, the feoffee ought to perform it within convenient 153 CONDITIONS. P. iEd.4, time; because that the daughter of the feoffor is P. 17 Ed. 4 t0 nave oene fi t au( l profit by the performance of fo. a. the condition, viz. advancement ; for it cannot be - -33 en - intended that the feoffment was made to any other T. 9 Ed. 4, intent, fyc. T q ti 7 7^' ^ a man ^ e en ^ e °ff e( l upon condition, that 1 7. he shall enfeoff a stranger, it behoves the feoffee to tender the feoffment to the stranger within a convenient time, fyc. But if a man be bound in ten pounds to J. S. to pay four pounds to a stranger, and it is not appointed when the four pounds shall be paid, if the obligor pay it to the stranger at any time during their lives, the bond * C 1 54-J is saved : and the reason is * because the condi- tion of the bond is for the benefit and profit of the obligor. The same law is, if the condition of the bond be, that the obligor shall enfeoff a stranger of, Sfc. and no time is appointed when the feoff- ment shall be made, Sf-c. M. 21 Hen. 790. And notwithstanding it be commonly said, P.4°Hen 7 tnat tne conmc i° n of an obligation shall be always Jo, 6. taken for the benefit and advantage of the obligor ; yet if a man be bound upon condition, that if he or his feoffees of his manor of Dale grant to the obligee twenty shillings rent issuing out of the same manor for the term of life, before such a day certain, that then, fyc. ; and the obligor hath three feoffees of his manor of Dale, and two of his feoffees grant the rent to the obligee, this is no performance of the condition ; and yet the feoffees of the obligor have granted the rent : but by these words (his feoffees) shall be intended all his feoffees, Spc. 791. If a man be bound, fyc. upon condition, CONDITIONS. 154 that if the obligor sufficiently prove that it was the will of C. D. that T. K. should make an estate of 8fC to the obligor in fee, then, fyc. ; in this case it is most for the benefit and advantage of the obligor to make proof by witnesses before some honest men in the country; and yet the proof ought to be made by an inquest, for the most sufficient proof in law is by an inquest. And the condition doth not mention in what manner the proof shall be made, nor before what person, but eaith only, that if sufficiently proved. And there- fore the law shall say, it shall be proved by the most sufficient proof, which is by inquest. But if the words of the condition are, that he shall make the proof before such a one, fyc. who are not justices, fyc. then the proof shall not be made by an inquest. Or if the condition be, that if it be proved suffi- ciently before such a day, fyc. before A. B. and C. D. justices of our sovereign lord the king ; and in fact they are justices of the peace or quoruvu and not justices of the one bench or the other, nor barons of the Exchequer, nor any such justices wluch may make a trial by jury, then the proof shall not be made by jury, except the proof be to M. 35 lie:,, be made by indictment. And notwithstanding b > lo> '3- that the proof is to be of such a thing as may be tried by an inquest, and before such persons as have power to try it by an inquest, yet if the proof be to be made at a time in which they have no power to take an inquest, the trial shall [not] be made by an inquest, fyc. 792. If a man be bound to T. K. fyc. upon con- dition, that if the obligor do acquit and discharge 154 CONDITIONS, the obligee before the feast of Easter, fyc. of a yearly rent of twenty shillings against JL, with which rent all the lands of the obligee are charged to R. for the term of his life, then, fyc.\ notwith- standing that the obligor do pay the said rent to R. at every term it ought to be paid until the feast of Easter be past, and require an acquit- tance thereof made to the obligee by the said it. in writing sealed ; and the same is delivered by R. to the obligee as the deed of the said R., yet he hath forfeited the sum of money comprised in the obligation ; because this condition shall be taken, * D55] that he ought to discharge * the obligee of the said rent, in the right, tyc. tiz. to determine the rent for ever, fyc. P. 44 Ed. 3, 793. And if I enfeoff a stranger of land upon condition that he re-enfeoff me, and no time is limited when the feoffment shall be made, then the feoffee ought to make the feoffment when he is required, if the request be made at a lawful time, fyc. And it is said, that by such feoffment with- out other condition, the feoffee is seised to the use of the feoffor and his heirs, for by the con- dition, the feoffee is not to have any profit ; but the feoffor is to have back the land by the condi- tion, so that there is not any condition by which the use may be altered ; tamen queer e of the use(?«). (m) In the time of Ferkins the use, i. e. the equitable estate, would in all probability have been held in the feoffor; but however that might be, it seems clear that under the construction which has been put upon the statute of uses, the legal use would not now be in the feoffor; since the trust to convey renders it necessary that the feoffee should retain the legal estate to enable him to do so. CONDITIONS, 156 But it appears upon the matter, that neither the feoffment nor the condition is made for the benefit of the feoffee, by which, fyc. 794. But if the feoffment be made upon con- dition, that the feoffee shall pay to the feoffor ten pounds, and no time is limited when the money shall be paid ; in this case the feoffee may per- form the condition at any time during their lives, viz. during the life of the feoffor and feoffee ; for in this case, the feoffee is seised of the land to his own use by reason of this condition ; so he hath benefit and profit thereby, and the feoffor is to have the ten pounds for the land, Sfc. 795. If lessee for twenty years of a house grant his estate to a stranger, upon condition that he shall obtain the good will of his lessor, and the stranger show the matter to the lessor, and the lessor says he wishes the house had fallen before the stranger had had it. And afterwards the stranger obtains the good will of the lessor of his M.iSEd. 4, grantor, now the condition is performed, although 5" ,*fu 3 the grantee did not obtain the good will of the les- fo. 22. sor of his grantor, in three or four years after the grant ; for the condition was to the profit of the grantee : and it is not limited when it shall be done, a nd therefore it is sufficient for him to obtain the good will of the lessor of his grantor within the term: and the words of the lessor of his grantor to the stranger shall not change the condition ; for a condition cannot be broken or determined except by acts done betwixt the parties, fyc. except in special cases, fyc. 79G. And therefore if I enfeoff J. S. to enfeoff H. 46 Ed. 3 fo. 4. 155 CONDITIONS. T. K., and J. S. says to C. D. that he will never enfeoff T. K., by these words the condition is not broken : but if he had said such words to T. K. the condition had been broken, 8$c. If R. M. be bound to H. S. in twenty pounds, upon condition, that if T. A. at his return from sea be not content with the presentment which the said H. hath made to the said R. of the church C. in Dale, §c. and that he then resign it, then G Sf-c. : and T. A. comes to C. and disagrees to the presentment, and says, that one J. S. his cousin shall have it, and prays R. M. to resign, and he refuses ; now if afterwards the said R. M. come to T. A. in another place, and says that he was presented to the church, and demands if he will acknowledge the same, and T. A. says that he is H content therewith, yet notwithstanding this agree- ment, after the disagreement, the obligation is forfeited ; tamen qucere (n). But if the condition [156] hath relation to the * precedent act, and no time A is limited when it shall be done, yet it ought to be done when the precedent act is done, except in special cases. 797. And therefore if J. S. be bound to me in twenty pounds ^rc, upon condition, that if I (n) Hy the obligor's refusal to resign in the first instance the condition is broken, and the obligation forfeited, by which a light to the penalty accrues to the obligee ; he might clearly have enforced this right and recovered the debt, in the interval between the refusal to resign and the ultimate con- sent to the presentation ; and it therefore seems impossible to hold that the subsequent act of a third person should operate to deprive him of this right. And see the cases post. s. 801. and 1 Inst. -221. b. 222. a. as to a feoffee's forUiture of his estate, by disabling himself to perform a condition annexed to it. CONDITIONS. 15(> enfeoff him of black acre, then he will pay me ten pounds, fyc. in this case, presently when 1 b have enfeoffed the obligor of black acre, he ought to pay me the ten pounds, although the?e be no time limited when it shall be paid, fye. 798. And if I enfeoff a man of land upon con- *l. 33 Hen. dition, that if J. K. give to him ten pounds, or " J go to Rome before such a day, fyc. then the feoffee shall pay me ten pounds, 8$c. Now these ten pounds ought to be paid when J. K. hath given to the feoffee, or gone to Rome before the day limited, although no time be limited when it shall c be paid, because it hath relation to the precedent act, Spc. 799. If J. S. be bound to T. K. SfC* upon con- dition, that if the goods which T. K. hath delivered to C. D. be taken or purloined out of the posses- sion of the same C D., and then the said C. D. d pay and satisfy T. K. for such goods so taken, then the obligation, §c. In this case the satis- faction for the goods ought to be made presently after the taking or purloining of them out of the possession of C. D. &c. 800. And there is a diversity when the condi- tion is to be performed on the part of the feoffor or grantor, ) fo - 7- yet the condition shall never be revived. The same law is, if the feoffee had been sole at the time of the feoffment, and before the day, and before the condition performed he had taken a wife, fyc. or if he suffer a stranger to disseise him, to the intent that he (the feoffee) may re- lease to him, (the stranger,) or if he enfeoff a stranger and take back an estate to himself and another ; or if he suffer the lands to be recovered against him, it is said, that notwithstanding exe- cution be not sued, the feoffor may enter ; be- cause it is in prejudice to the title of the land ; or if execution be sued forth by force of the judg- ment, or if the demandant enter into the land by force of the judgment, the feoffor may enter ; or if the feoffee he bound in a statute-merchant, or + [157] a s tatu te staple, or grant a * rent issuing out of the land, the feoffor may enter. So shall it be in CONDITIONS. 157 all like cases. And as it is of feoffments upon con- dition, so it is of leases and grants, fyc. upon condition, mutatis mutandis, 8$c. 802. But if a man enfeoff a stranger upon con- [Co, Liu. dition, that if the feoffor enfeoff the feoffee of 22 ' 2 -*-] black acre, or pay to him ten pounds before such a day, $c. that then it shall be lawful for the feoffor and his heirs to re-enter, fyc. and after- wards the feoffor is a monk professed, and is de- raigned before the day, and then before the day tenders to the feoffee a feoffment of black acre, and he refuses it, or tenders him the ten pounds, H.35Hen.6, and he refuses to accept it, the feoffor may re- p 9 ' ,, enter, &;c. The same law is of leases and grants ; 1 3. mutatis mutandis. 803. If a man grant an annuity to another until he be advanced to a benefice, and the grantee takes a wife, the annuity is determined ; because he hath disabled himself to take the bene- fice. But if a man be bound to J. S. in twenty pounds, upon condition, that if the obligor pre- sent the obligee to the church of Dale, the next time that it shall become void; now notwithstand- ing that J. S. takes a wife, and the marriage con- tinues betwixt them at the time that the church becomes void, yet if the obligor will save his obligation, he must present J. S. to the same church of Dale. 804. And when an annuity of ten marks is An. 20 Lib. granted to a man, until he be promoted to a bene- Ass> P '• fice by the grantor, and it is not expressed of what value the benefice shall be, the benefice ought to be of equal value with the annuity or more ; and 157 CONDITIONS, it ought to be of as sure estate as the annuity ; c otherwise, although the grantee refuses the bene- fice the annuity is not determined. For if the grantor tenders to the grantee a presentment to a vacant benefice, but to which the grantor hatli no lawful title to present, the grantee may refuse it, although the church be of equal value to, or f more than the annuity ; and if the benefice be such that the grantee shall have cure of souls, and the grantee being within the age of twenty-four years, the grantor tenders to him a presentment to the same church, the grantee may refuse it, although the church be of sufficient value, and the grantor hath lawful title to present to it. And if no value of the benefice be expressed, it shall G always relate to the value of the annuity, and not to the person of the grantee. 805. And therefore if I grant to the king's chaplain an annuity of forty shillings, until he be promoted by me to a convenient benefice ; and I tender to him the presentation to a vicarage worth ten marks annually, and he refuses it, the annuity is determined, fyc. But if the grantor P. 10 Kd. 3, present the grantee to a convenient benefice upon H ' 5/ " other consideration than to determine the annuity, and it is so expressed sufficiently in a deed in- dented made between them, and sealed and deli- vered as their deed, 8$c. now although the grantee accepts the presentment, yet the annuity is not determined, 8$c. 806. And the grantee may accept a presenta- * ^1.58"] tion * to a benefice conditionally, scil. if the bene- a fice be adequate, #c. and then immediately after CONDITION'S. 158 seeing it and perceiving that it is not adequate, he may refuse the same : but such refusal must be made before induction. But if after perceiving the benefice is not adequate he be admitted, he cannot now refuse the same before induction ; but if he do not perceive the same before his admis- sion, then he may refuse it for the same cause before the induction. And notwithstanding that the grantee accepts the benefice generally, yet the annuity is not determined before he be in- ducted, except the cause delaying his induction be his own default ; insomuch that if the day of payment of the annuity happen after his admis- sion, and before his induction, the grantee shall have it, Sfc. 807. And if I grant a rent, or annuity, or other thing, or enfeoff a stranger of land, or lease land to a stranger upon condition, that if he purchase lands or tenements of the yearly value of ten pounds, then I shall re-enter into the land ; and if the condition be annexed to the grant, that then the grant shall be void and determined : and the feoffee, grantee or lessee, and a stranger jointly, purchase land, or rent, of the yearly value of ten pounds, yet I cannot enter, §c. For although every jointenant be seised per mye et per tout, yet that does not prove that the feoffee, grantee, or lessee alone, hath purchased land of the value of ten pounds: and the intent of the condition was, that it should be so much in value, (viz. of the value of ten pounds), to the feoffee, grantee, or lessee. But if the feoffee, grantee, or lessee, and a stranger jointly, purchase land or rent, or houses, or a reversion of the yearly value 138 CONDITIONS, of ten pounds, and the stranger, the joint pur- chaser, releases to him all his right in the land, rent, or reversion purchased, now the condition is performed ; so that I may well enter. But if H.uHen.6, such feoffee, grantee, or lessee alone, purchase r&rf / common of the value often pounds, yet I cannot i Prest. on enter; for common is not comprised in the words hst. R-p] Q £ j.| )e conc ]ition, viz. within the words of land or tenements, fyc. 808. And if J. S. seised of lands of the value of ten pounds, grant a rent-charge of forty shil- lings out of the same land to a stranger ; and afterwards enfeoffs such feoffee, grantee, or lessee upon condition thereof, the condition is not per- formed. But if the grantee of the rent release all his right in the same lands, to the feoffee, grantee, or lessee upon condition, then seised of the land by force of the feoffment of J. S., the condition is performed, Sfc. The same law is, if the rent had been first -granted to such feoffee, grantee, or lessee upon condition, and he had afterwards purchased the land whereout the rent was issuing; for then he had lands and tenements of the same value. 809. And if a man seised of land of the value of ten pounds, grant common of pasture therein for twenty oxen to a stranger, and afterwards enfeoff thereof the feoffee, grantee, or lessee upon condition, now the condition is not performed, I 1 59] f° r l ana " or other thing * tantum valet quantum . vendi potest. And this land cannot be sold by the feoffee for the value of ten pounds ; for if. a man sue forth an execution thereof upon a statute - merchant against the feoffee, or hath CONDITIONS. 1-59 judgment to recover in value against him, by reason of voucher, now this land shall be ex- tended, at the value remaining after the common deducted, fyc. 810. But if I be bound to J. S. in a hundred pounds to enfeoff him of the manor of Dale, be- fore such a day, and after the delivery of the bond as my deed, I grant a rent»charge of four pounds issuing out of the manor of Dale, and after- wards enfeoff the obligee thereof, before the day, the condition is performed. But if I had tendered a feoffment of the moiety, or third part of the manor, to the obligee before the day, Sfc. he might have refused the same, and brought his action of debt upon the obligation ; causa pah'. 811. And if a man be bound to appropriate a church at his own costs, and before the appropri- ation a pension is granted out of it ; and afterwards before the day he appropriates it, the condition is performed 4c. If a man seised of land enfeoff "H. 3 Hen. 7, a stranger thereof upon condition, that if he, viz. 4 ' the feoffee^ take a wife seised of land of the value often pounds, then the feoffor shall re-enter ; and a feme sole seised of land of the value often pounds, grants a rent charge of five pounds there- out to the feoffee, and afterwards intermarries with him, qtuere if the condition be performed ; for the land was not of the value often pounds till after the marriage, SfC. (0). (0) Where net opposed hy ilic rules of law, (lie intention of the parlies is regarded in the construction of conditions ; and conditions to destroy an estate arc taken sirietly; it seem* therefore ifaat the feoffor could not re-enter in thi> 159 CONDITIONS. 812. If a man seised of land enfeoff a stranger thereof, upon condition that if he purchase land of the value of twenty pounds, then the feoffor shall re-enter ; and afterwards the feoffee recovers lands of that value, in an action ancestral or of his own possession, and the cause of such action was given to him either after or before the feoffment upon condition, the condition is not performed, fyc. Qucere, if the recovery be upon a false title (p). But if the feoffee, after the feoffment, disseise a stranger of land of the value of twenty pounds, the condition is performed, although the disseisee re- enters into the same land, or recovers it in an assise, Sfc. 813. If such feoffee upon condition be impleaded of land of the value of twenty pounds, of which he was seised at the time of the feoffment, and vouch a stranger by force of a warranty made to him before the feoffment, and the vouchee enters into the warranty and loses ; and the demandant hath judgment to recover against the tenant, and the tenant hath judgment to recover over in value against the vouchee, and each of them hath exe- case, for the woman was seised of land of the value of 5 1. only, and the rent charge is but suspended, and not extin- guished by the marriage. (p) According to Lord Coke, 1 Inst. 3, b. 18. b, a disseisor cannot be said to purchase ; and therefore, if in the case put in the text, the feoffee disseisor as against himself shall be said to purchase, because he does not claim by descent or upon a precedent title, it should seem that he could not be said to purchase by a false recovery, where he claimed only by de- scent or upon a precedent title. However, in some cases a recovery upon a feigned title has the same effect as a pur- chase ; Doct. & Stud. B. 2, c. 17 ; and it may be urged that the feoffee shall not reap any advantage from his own fraud. CONDITIONS. 159 cution against the other ; now it seems the con- dition is performed; for although the warranty was before the feoffment upon condition, yet the title of the recovery in value shall only have rela- tion to the voucher, and he is in the land reco- vered in value by the vouchee ; insomuch that if the vouchee had the same by disseisin, the dis- seisee shall have thereof a writ of entre sur dis- seisin en le per against him who recovered it in value, Sfc. 814. Know that some have said, when the con- dition cometh from the feoffor, and the feoffee hath done all in his power to perform * the con- * [160] dition, so that there is no default in him, it is not reason that he should lose the land. And there- fore if J. S. be seised of land in fee, and enfeoff T. K. thereof upon condition that he shall pay to C. B. twenty pounds before such a day, fyc. and he tenders C. B. the money accordingly, and he refuses it, they say that T. K. shall hold the land to him and his heirs for ever, because the condition comes from the feoffor, and there is no default in the feoffee, §c. and it is not reason that by the negligence of a stranger the feoffee should lose the land, where he doth not undertake to make the stranger receive the money, and it is the folly of the feoffor to make the feoffment upon such a condition, except he knew the stranger would receive the money. And they say, the same law is, if a man seised of land enfeoff ,/. S. thereof* upon condition that he shall enfeoff T. K. for a certain sum of money, and expend it for the soul of the feoffor ; and J. S. offers to T. K. a feoff- R 2 160 CONDITION'S. ment of the same land for the sum of money, and he refuses the same ; for they say that neither the feoffor nor his heirs shall re-enter, but that the feoffee shall retain the land to him and his heirs for ever. M. 19 Hen. 815. And they say also, if I enfeoff J. S. of P * Ed a 2 l an d u P on condition that he shall enfeoff T. K. T.i Ed. 5,2. thereof, and he tenders a feoffment to T. K. who refuses it , that neither I nor my heirs shall re- enter, but that the feoffee and his heirs shall retain the land for ever. And they say, these cases are not like this case, viz. where I bail my goods to J. S. to bail over to T. A'., and J. S. tenders the goods to T. K* who refuses to have them ; in this case I shall have my goods again, because the property of them was never out of me, and never vested in J. S. But in the said cases of a feoff- ment it is otherwise ; and also they are not like the case, where a man is bound in forty pounds to enfeoff T. K. of black acre and white acre at a day certain, and the obligor tenders the feoff- ment, according to the condition of the bond, to T. K. who refuses the same, the obligor hath forfeited his bond, because he took upon him to enfeoff T. K., and is bound to do it at his peril, 8fc. But notwithstanding all these rea- sons, the law is contrary in the said cases of feoffments, because it appears by the words of the condition, that the intent of the condition is not that the feoffee shall hold the land to him and his heirs for ever, if the condition be not performed; and the condition is neither against the law, nor repugnant to the law, nor impossible ; and there- CONDITIONS. 16*0 fore, if it be not performed the feoffor and his heirs may re-enter. And sundry cases to prove all this are put before in divers places of this treatise of Conditions. 816. But if I be seised of land and enfeoff a P.2Ed.4,2. stranger thereof, upon condition that before such a day he shall give it to a stranger in tail ; and before the day the feoffee tenders a gift in tail of the land to the stranger, and he refuses it, in this case the feoffee * shall keep the land to * [1G1] him and his heirs for ever ; because the intent of the condition, according to the words, cannot be understood otherwise ; for notwithstanding the gift in tail had been made according to the con- dition, yet the reversion of the land had remained in the feoffee and his heirs, which reversion would be devested out of the feoffee and his heirs if the feoffor should re-enter ; and therefore the feoffee shall hold the land to him and his heirs for ever, 8$c. 817. And if a man be seised of land, and enfeoff M. isHea, a stranger thereof upon condition to give it to the *j 2 ^ Hen feoffor and his wife in special tail, the remainder Condition,^. to the right heirs of the feoffor ; and the feoffor JJ£ Jjjf dies without issue by his wife, and his wife not (T-'itt. s. with child, and she takes another husband, and 352 '^ the feoffee lets the land to the second husband and his wife, for her life, without impeachment of waste, the remainder thereof to the right heirs of the feoffor; in this case the condition is per- formed, and yet the estate is not made according to the words of the condition, tyc. 818. And know, that land, rent, or common, *3 161 CONDITION'S. SfC. to which a condition infait is annexed, during the estate to which the condition is annexed in possession, or in right, is chargeable with the con- dition, in whose hands soever the land, rent, or common shall come, except it come to our sovereign lord the king, (of which I will not speak,) or in special cases. And therefore if I be seised of land in fee, and enfeoff «/. S. there- of upon condition, and he is disseised, and the disseisor dies seised thereof, and his heir is in in the land by descent, in whose time the condition is broken ; I may enter for the condition broken. And in the same case it is said, that I may enter upon the heir of the disseisor for the condition broken before the disseisin, notwithstanding the descent. And others think the contrary, because then my title of entry is before the descent, and shall be bound by it, as well as a right of entry shall be bound by the descent. Qucere (g), for if the condition be broken (while the land is in the possession of the feoffee) and afterwards the feoffee dies seised thereof, and his heir is in in the land by descent, yet the feoffor may enter upon him for the condition broken before the de- scent, Sfc. Au. 22 Lib. 819. If there be lord and tenant, and the tenant Ass. p. 49. enfeoffs a stranger upon condition, and the feoffee dies without heir, or is attainted of felony, or (9) The entry might be made upon the heir of the disseisor, for the feoffor's title of entry cannot be taken away by any descent, because he hath no remedy by action ; and beside* a condition cannot be devested or put out of possession like lands or tenements ; Co. Litt. 240. a. b, and Mr. Butler's n&tes there. CONDITIONS. 161 murder, or petit treason, S)~c. so that the tenancy comes to the lord by escheat ; yet the tenancy remains charged with the condition. But if a man seised of land lease it for life upon condition, and afterwards grants the reversion to a stranger with- out condition, and the lessee attorns, and after- wards dies ; and the grantee of the reversion enters into the land, he shall hold the land with- out any condition, because the estate to which the condition was annexed is determined in possession, * and also in right. And if one disseise the feoffee * [162] or heir of the disseisor, or any other person who hath the land by unjust title, and enfeoff a stranger thereof upon condition, and the land is afterwards lawfully devested out of the possession of the feoffee, eye. by him who hath right according to his title, by entry or by action, as the case shall require, the land is discharged of the condition, feoffment upon condition, Sj-c. And as it is said of land, so shall it be of a rent, or common,, and of other things which lie in grant ; mutatis . mutandis, Sj-c. 830. Now is to be shown who shall take advan- tage of conditions when they are executory ; and who when they are executed. And know, that e no persons shall take advantage of conditions executory who are not parties or privies, Sfc. And not even all manner of privies ; for privies in estate shall not take advantage of conditions executory. [Fitz. N. B. 831. And therefore, if a man seised of land 201. C. 10. ] ease ^ for life, upon condition that the lessee Rep. 41, in \ , . , Portiwrtons shall pay twenty shillings at a day certain, the ca l remainder over to J. S. in fee ; J. S. shall not take advantage of this condition by way of entry ; and f yet he is privy in estate, for his estate and the estate of the lessee were made at one and the same time, $c. Nor shall privies in fait take ad- vantage of conditions executory. And therefore, if a man seised of land, lease it for life upon con- ' dition, &;c. and afterwards grants the reversion to a stranger in fee, and the lessee attorns, yet the grantee shall not take advantage of this condition q by way of entry ; notwithstanding that he be CONDITIONS. 164 privy injhit ; and he is called privy in Ja.it, be- cause he hath the reversion by grant, Sfc. Neither shall privies in law take advantage of conditions executory. 832. And therefore, if there be lord and tenant, and the tenant leases the tenancy to a stranger 11 for life upon condition, and afterwards the tenant dies without heir, and the reversion escheats to the lord, he shall not take advantage of this con- dition by way of entry. And the lord in this case is called privy in law, because he hath his estate in the reversion by the law only, viz. by escheat : but privies in right shall take advantage of con- ditions executory. A 833. * And therefore, if lessee for years of * [lG^j land grant his estate to a stranger upon condi- tion, tyc. and makes his executors and dies ; in this case, his executors shall take advantage of the condition by way of entry, for they are privies in right ; for if the condition be broken, and they enter into the land, fyc. they shall have it in the right of the testator to the use of his soul, fyc. b 834. If a man seised [possessed] of land for the term of twenty years in the right of his wife, leases it to a stranger for ten years rendering rent, Sj-c. and for default of payment a right to re-enter ; and afterwards the husband dies, and then the rent is behind, I conceive the wife shall have the [&d vide rent, and not the executor ; because the rent was ?•* . Bu " Co. Litt. to the husband by way of reservation, and the 40. b. & n. wife hath the remainder of the term : but not- 3- & 4 '3 c withstanding that the wife shall have the rent she shall not re-enter ; causa patet, eye. 165 CONDITIONS. 835. If an abbot enfeoff a stranger of land wbich he hath in the right of his house, upon con- dition, his successor shall take advantage of this condition (if it be broken) by way of entry, be- cause he is privy in right. The same law is of a dean and chapter, and ether such persons, An. 40 Lib. mutatis mutandis. And privies in blood, as the ivi.4 Hen 6 ne * r °^ tne feoffor,. <$-c. shall take advantage of 8. conditions executory, by way of entry, &c. And the parties to conditions shall take advantage of them by way of entry, as in the cases before shewn, fyc. And as it is said of land, so the same law is of things which lie in grant, mutatis mu- tandis. And when it behoveth persons who shall take advantage by way of re-entry to make a de- mand, fyc. my Master Littleton hath well shewn in his third book in this chapter of Estates upon Condition ; mutatis mutandis. T.2oHen.6, 836. And if a man seised of land in fee, lease 1*6 H " k f° r n fe> or f° r y ears ? reserving ten shillings 2. rent payable yearly at the feast of Easter ; and if the rent be behind in part or in all for a month after any day on which it ought to be paid, that P.2oHen.6, then it shall be lawful for the lessor and his heirs 3a " to re-enter, Sfc. And the lessor comes upon the land at the last instant of the feast day of Easter, and there demands the rent as is necessary if he will take advantage of the condition, (and the lessee is not tied to be upon the land to pay him the rent, but at the last instant of the day on which it ought to be paid), and there is no body there to pay it to him ; notwithstanding this demand, if the M. 2 Heci.7, lessor will take advantage of the condition by way 14. CONDITIONS. 165 of entry, he must make the like demand at the last instant of the [last ] day of the month, and if he make such demand, and the lessee is there, or ano- ther for him, ready to pay the rent, the lessor shall not enter, although there was nobody ready to pay him when he made the first demand ; and yet if he had not made the first demand, and there was nobody ready to pay him, and he had made the last demand, and then there was nobody ready to pay him, ytjf. he could not hav e re-entered(s). If the lessee or any for him be upon the land at the time of any of the demands, ready to pay the rent, and tender it to him who demands it (as is necessary), $c. and he refuses it, *then neither * [16C] the lessor nor any for him can re-enter. And if (when the first demand was made) there was nobody ready to pay the rent, and in the mean- time, after the demand and before the last day of the month, the lessee tenders the money to his lessor off of the land, and he refuses the money ; and at the last instant of the last day of the month, the lessor makes another de- mand of the rent upon the land, and there is T.aaHen.6, nobody ready to pay him, he may re-enter not- J ' withstanding the refusal of the rent at the time of the tender made to him out of the land ; be- cause he was not bound to receive the rent off of the land ; tamen qucvre thereof (/) ; but if he had (s) But after the time of Perkins, it was decided not to be necessary for the lessor to demand the rent upon the day of payment ; but that a demand upon the last day of the month only, would entitle him to re-enter upon default in payment ; Co. Litt. 101. a, and Mr. Butler's note (3.) there. (t) In the case of Cropp v- Hambleton, Cro. El. 48. it was decided that the lessor was bound to receive the rent, wheu 106 CONDITIONS. received it, then he could not have re-entered, C although the receipt were off of the land. 837. So if after the first demand, and before the last day of the month the lessor happens to come upon the land, and the lessee being upon the land tenders him the rent ; it is said the lessor is bound to receive it, because the rent is then due, and it is tendered to him in the place r where it ought to be paid, 8$c. 838. And if a man be seised in fee of a man- sion-house, with divers pasture fields, arable lands, and woods thereunto appertaining, and leases the house with all the fields and woods to a stranger for life, or years, reserving the rent of ten pounds payable yearly at the feast of Easter, fyc. and for default of payment that it shall be lawful for the lessor and his heirs to re-enter ; in this case, the lessor may distrain in every parcel leased for the i whole rent ; but if he will take advantage of the re-entry, he must demand the rent at the man- sion-house, because it is parcel of the thing let, and the most convenient place for the lessee to be in to tender the rent, S,c. And if such lease be made of divers fields and woods, without any mansion-house, if the lessor will take advantage ] of the re-entry, he must openly demand the rent upon a parcel of the lands leased, which by in- tendment of the law is as convenient for the lessee to stay upon to be ready to pay the rent, as any other parcel of the same lands ; and not privately offered by the lessee upon an intervening day, and off the land ; as in the case put in the text : and consequently, that this tender saved the condition, and after refusal the lessor could not enter. And now such a case would be met by the provisions of the statute, 4 Geo. 2, c. 28, which see. CONDITIONS. 166 G demand the rent in one parcel of the wood, or in another private place of a field, that the lessee may not know of the demand, although he be upon the land ready to pay the rent, fyc. 839. And it is to be known that when condi- M.44 Ed. 3, tions are executed, strangers to them shall take „' -p, & . P- 45 Ed. 3, advantage of them by way of plea, Sfc. as if a man 6. seised of land enfeoff a stranger thereof upon 11 condition, and afterwards the condition is broken, for which the feoffor enters into the land, and enfeoffs T. K. thereof; upon whom the feoffee upon condition re-enters, and T. K. brings an assise against him, and the feoffee upon condition pleads the feoffment simply without any condition, and gives colour to the plaintiff, Sfc. The plaintiff a may plead that the feoffment * was made upon * [167} condition, and show all in certain, and that the feoffor entered for the condition broken, §c. and enfeoffed him, fyc. this is a good matter of title, Sfc. and yet the plaintiff is a stranger to the feoff- ment upon condition, 8$c. 840. It is commonly said, that when any per- son enters for a condition in deed broken, he shall b be seised in the same manner and course as he [Shepp. T. was when he parted with the possession, upon ■}' 1 ^~ which the condition in fait was made. And therefore, if the feoffee upon condition in fait of land, grant a rent-charge issuing out of the land, or enter into a recognizance, or is bound in C a statute-merchant, Qr statute-staple, #c. and the conusec or obligee hath the land, whereof the feoffment upon condition was made, in execution; and afterwards the condition is broken, for which 167 CONDITIONS, the feoffor re-enters, the interest and estate of the conusee or obligee is defeated and destroyed; and the land is also discharged of the rent granted by the feoffee ; and yet the condition was broken after the grant, recognizance, and obligation : and the reason is, because he made the feoffment of the land upon a condition expressed in the deed, unincumbered by the rent and such executions. I And for the condition broken he may re-enter, and have the land again ; and so he must have it in the same plight and condition as it was when he parted with the estate upon condition: yet it does not follow in every case, that when any person enters for a condition in fait broken, he shall be seised in the same course, plight and condition, as he was when he parted with the estate to which the condition was annexed and made. An. 39 Lib. 84]. And therefore, if a man seised of land ss. p. 15. j eage j t t0 a s t ran g er f or ]jf e> an( j the lessee for life enfeoffs a stranger thereof upon condition in fait ; and afterwards the condition is broken, and the lessee, who is the feoffor, enters ; now he is not seised in the same course as he was at the time of the feoffment made, for then the lessor could not enter upon him and oust him of his term ; but now the lessor may enter upon him, and oust him of the term, for by the feoffment his lessor had a title of entry, which is not dis- charged by the re-entry of the lessee for the con- dition broken ; causa patet. 842. And if cestui/ cue use in fee of certain lands enter upon his feoffee, and according to CONDITIONS. 167 the statute of Richard 3. in such case provided, An. 43 Ub, enfeoffs a stranger thereof, upon condition that ^i Vlleu 7 -, he shall pay to him ten pounds before the feast 5- of Easter next following, and the feoffor enters ^ ^' . for the condition broken ; in this case the use is not revived, for by the feoffment made upon con- dition the use was determined and destroyed, Sfc. And if there be a disseisor of land, and he die* seised thereof, and his heir is in the land by descent ; and the disseisee enters upon the heir and ousts him out of tft 1 land, and enfeoffs a stranger thereof upon condition, and the heir of the disseisor enters upon the feoffee, and the dis- seisee brings a writ of entry stir disseisin en le Per against the heir of the disseisor, and demands the land, and recovers by confession, and hath execu- tion thereof, and the feoffee upon condition * re- * [168] enters upon him, and afterwards the condition is An. 20 Lib. 1 . Ass. p, 1. broken, for which the feoffor enters ; now the feoffor is not seised in the same course as he was at the time of the feoffment made, for at that time the heir of the disseisor might have entered upon him, and put him out of the land ; but now he cannot do so, fyc. 843. If there be lord and tenant, and the lord disseises the tenant of the tenancy, and enfeoffs a stranger thereof upon condition, and afterwards the condition is broken, for which the lord enters, upon whom the tenant enters, the seigniory is not revived ; and yet if the tenant had entered upon the lord before the feoffment made by him, the seignory had been revived ; causa patet : which proves the lord is not seised in the same course 168 CONDITIONS, and plight after his entry for the condition broker!, as he was at the time of the feoffment made upon condition, &;c. 844. And it is commonly said, that when a man enters by reason of a condition in law, he shall take the land as he finds it ; and this is not so in all cases. For if a man seised of land leases it for life, there is a condition in law annexed to the land, viz. that if the lessee discontinues the reversion the lessor shall enter: and also ano- ther condition by statute law annexed thereunto, viz. that it shall not be lawful for the lessee to do waste in the land leased, 8$c. And if in such case the lessee enfeoff a stranger of the land leased, and the feoffee grants a rent-charge out of the same land, and the lessor enters upon the feoffee, he shall hold the land discharged of the rent, be- cause his title of entry commences by the feoff- ment which was before the grant, fyc. But if the lessee had granted the rent, Sf-c. before the feoff- ment, and then the lessor had entered upon the feoffee, he should have held the land charged during the life of the lessee ; causa patet, fyc. And if the lessee had committed waste, and granted a rent-charge to a stranger after the waste done, and the lessor had brought his action of waste, and recovered, he should have held the land discharged of the rent ; but if the grant had been made before the waste done, then he should have held the same charged during the life of the lessee, Sfc. 845. And if there be lord and tenant, and the tenant enfeoffs an abbot of the tenancy ; and the CONDITIONS. 168 abbot grants a rent-charge issuing out of the tenancy, and the lord enters within the year and day after the alienation, according to the statute of Mortmain, he shall hold the tenancy discharged of the rent granted by the abbot, fyc. But if the tenant had granted a rent-charge issuing out of the tenancy before the alienation in Mortmain, and the lord had entered within the year and day after the alienation, fyc. in this case the lord should have holden the tenancy charged, fyc 169 ADDENDA Sf CORRIGENDA. Fo. 6, D. in sec. 29. Add in margin * scd vide 4 Bl. Com. 387-8. & 3 Prest. Abstr. 392-3.' Fo. 19. s. 89. 4" "'■ ( c ) The reading of the translation here, [cannot,] is sanctioned by the MS. in the Hargrave collection. Fo. 26. s. 129. line 10. Dele " and an escrow," and read, " and it;" agreeably to the former translation, as noticed in «• (/)• Fo. 48. n. s. 240. Add references to 2 Prest. on Estates, 43-46. and T. 22 Ed. 4. Fitz. Abr. Feffem. cy Faits, pi. 29. The latter appears to be the authority cited by Finch, and noticed by Mr. Preston as not found : it is not cited correctly in any of the editions of Perkins. Fo. 58. note (i.) Add a reference to the stat. 55 Geo. 3, c. 147, enabling spiritual persons to exchange their parsonage houses or glebe lands, and which is amended and rendered more effectual by 56 Geo. 3. c. 52, and 6 Geo. 4. c. 8. These statutes, it will be seen, qualify a preceding sentence of this note. Fo. 67. s. 336. note (h) refers to the following case : Trevelyan v. Trevelyan, C. P. Tr. T. 1826. Several Limitations of a contingent Use unite with each other, in the same manner as several Limitations of a vested Estate. This was a case sent by the Vice Chancellor for the opinion of the Court. Walter Trevelyan, seised in fee of divers estates in Har- burne, Northumberland, subject to a contingent jointure rent- charge and a contingent term for securing it, and of others unincumbered, by his will, dated 13th May 1818, charged all his real estates with certain legacies and rentcharges for lives ; and thus charged, devised them to his executors for a term of 2,000 years, to raise monies for specified purposes : and subject thereto, devised all his estates to trustees, to uses in strict settlement; and appointed John Trevelyan, Thomas Singleton, and William Orde, executors. In the interim between the date of this will and June 1819, the testator made two codicils to the will, but which did not affect the preceding dispositions. By indentures of lease and release and settlement, dated 1st and 2d June 1819? and made in contemplation of the marriage ADDENDA & CORRIGENDA. 170 of Raleigh Trevelyan, son and heir apparent of Walter, with Eliza Gray ,WalterTreve)yan conveyed his estates in Harburne, subject to the contingent jointure and terra before referred to, to T. S. and H. G. G. their heirs and assigns, to the use of Walter Trevelyan and his heirs, until the marriage between Raleigh Trevelyan and Elizabeth Gray, and after the mar- riage, to the use of Walter Trevelyan and his assigns, for the life of Raleigh Trevelyan, sans waste; and after the decease of Raleigh Trevelyan, to the intent that Eliza Gray his intended wife (if she should survive) might receive out of the estates a jointure rentcharge of 400 /. per annum for her life, with usual powers of distress, &c. to secure it : and subject thereto, and after the decease of Raleigh Trevelyan in case his said intended wife should survive him, to the use of T. S. and II. G. G. their executors, &c. for three hundred years from such the decease of Raleigh Trevelyan, upon trusts for securing the last-mentioned jointure, and after the expiration of that term, and in the meantime subject thereto, to the use of Walter Trevelyan his heirs and assigns for ever. Walter Trevelyan died loth June 1819, without having republished his will, and previous to the intended marriage, but which was soon afterwards solemnized. Walter Trevelyan's executors proved his will and codicils, and then took posses- sion of his real estates under the term of two thousand years devised to them ; upon which Raleigh Trevelyan, the son and heir of the testator, filed a bill in Chancery against them and other necessary parties for relief. By this it was insisted, that the conveyance of 18 19 operated to revoke the will as to the estates in Harburne, and that they descended upon Raleigh Trevelyan in fee, subject only to the jointure of Walter Trevelyan's widow, who survived him, and the powers and term securing it; and to the contingent jointure of the said Eliza Gray, (then Trevelyan,) and the limitations for securing it. Thedelendants by their answers insisted that the conveyance of June 1819 did not operate entirely to revoke the will and codicils as to the estates in Harburne ; and consequently, that these estates did not descend to the testator's heir ; and that, under the conveyance of June 1819, the executors wereentitled by occupancy to the estate thereby limited to Walter Trevelyan during the life of Raleigh Trevelyan. Upon the hearing of the cause before the Vice-Chancellor, 14th June 1825, the Court declared the will and codicils revoked by the conveyance of June 1819 as to the estates therein comprised, and directed a case for the opinion of the Court of C. P. on the question, ' Whether the executors of ' Waiter Trevelyan, under or by virtue of the limitations 171 ADDENDA & CORRIGENDA. ' created by the conveyance of June 1819, took any and what ' estate or interest in the hereditaments therein comprised ? ' and also, what estate and interest the plaintiff Raleigh * Trevelyan took in the same hereditaments, under or by virtue * of the limitations thereby created, and as the heir at law of ' Walter Trevelyan ?' In Trinity term 1826, this case was fully argued before the Court of C. P. by Serjeants Vaughan and Lavves, and Mr. Preston for the plaintiff heir : and by Mr. Serjeant Bosanquet, with great earnestness, for the executors, and principally upon the ground that the contingent limitations pour autre nic, and in fee to Walter Trevelyan, could not unite with each other, and that the doctrine of merger could not be applied to them. The authorities cited in argument were, Rule in Shelley scase, 1 Rep. 93 ; Bales v. Bates, Ld. Raym. 326; Lutw. 709; Salk. 254 ; Lewis Bowles 7 Ca. 1 1 Rep ; C/iudleigh's Ca. l Rep. ; and Perk. s. 336. The Judges afterwards gave the following certificate : — " We have heard this case argued by counsel, and have con- sidered it ; and we are of opinion that the executors of Walter Trevelyan did not, under or by virtue of the limitations created by the settlement therein mentioned, take any estate or interest in the lands and hereditaments therein comprised. " And we are of opinion, that the plaintiff, Raleigh Trevelyan, took an estate in fee simple in the same lands and heredita- ments, under and by virtue of the limitations created by the said settlement, and as the heir at law of the said Walter Tre- velyan, subject to the term of three hundred years in the event of his dying in the life-time of his wife, and to the other powers lor raising her annuity of 400I. et n ~ " W. D. Best. J. Burroush. « 30th June 1826. u j A Park s Gase/t€ „ Fo. 83, d. s. 427. The Hargrave MS. reads, ' Et en mesme le case reyrepoe£entre,'&c. in opposition to the printed copies, and agreeably to the Editor's note (i) there. Fo. 95, e. f. s. 493, 4. The text in these passages now stands in the same order as in the old French editions. In the former English editions the last clause of the first part of s. 493, is transposed, and made the first part of s. 494. The variation is immaterial, and noticed only to correct any citation from those editions. Fo. 141, note (e), line 5, add ' is' after ' it.' INDEX REFERRING TO THE SECTIONS. Abeyance : An estate is in abeyance when not vested in any person, s. 87. 708. the freehold cannot be put in, s. 708. (exception of a church, s. 709). nor any estate limited by way of use or in wills ; and it seems doubtful whether a remainder on a conveyance at the common law can be, s. 87, n. («). Ability : vide Grantor. Grantee, &c. Abbot : arj abbot might make a lease for years for his own time, or a gift of chattels personal, without deed ; and might bind his suc- cessors by a line or recogni- zance, but not by deed, s. 31. 33. 64. sed vide note (i) s. 33. could discontinue the estate of the convent, s. 225. could not devise, s. 497. immediately translated to a bisliopric.was personally liable to a rent previously granted by him, s. 33. Abbot and Content : an abbot and convent were not bound by a deed executed by the abbot only without Abbot Sf Convent : — continued. assent, &c. s. 133 but were by his fine, s. 33. sed vide n. (z) ib. might change their seal at will, and therefore use any, s. 132. and need not affirm it their common seal, s. 133. might make a deed out of their monastery, and where its date was material, s. 153. vide Corporation. Abjuration of the Realm : was civil death, n. (6) s. 3. Accessory Rights : difference between, as the}' are in respect, in place or by reason of, or as perquisites to another tiling, s. 94-7. vide Lessee. Account : executors (and administrator'-) are liable to render, to the spi- ritual judge, s. 503. Acquittal from the Services, Src: feoffee of part of a tenancy could not claim before notice, &c. ». 684. Acquittance i vide Date. S INDEX. Action : for a house burned or pulled down, might be had by the owner, s. 672. Administration : by whom to be granted, and ■where void, and where void- able only, s. 489. & n. (g). vide Account. Testament. Advovoson ; an advowson may be granted over, s. 103. passes by a grant of lands and tenements, s.i 16. (sedqu&re). a woman is dowable of an, s. 342. appendant to a manor, passes by a feoffment of the manor merely, s. 116. appendant, may be severed and made in gross b v grant, s. 1 04. vide Curtesy. Infant. Age of Discretion : 14 is the, n. (0) s. 14. Alien : an, may be a grantee, s. 48. (but generally to the King's use only. Vide Harg. & B. Co. Litt. 2. b. & notes.) Alienation : where a restriction upon, is generally void, &c. n. (e) s. 103. Annuity : an annuity is assignable at law, s. 87. & n. (;). although granted pro consilio impen- dtndo, n. (c) s. 101. in fee, a woman is not dowable of, s. 347. vide Condition. Estate Tail. Rent. Apportionment of Rent and Services : in what cases made, and in what not, s. 674. 679. 684. not varied by subsequent change in the value of the tenancies, s. 680. &n. (/)&68i. in some cases may be defeated, and the original rent, &c. revived, s. 682-3. Assent : see Executor. Assets : a rent which descends to the heir by way of extinguish- ment is assets, s. 270. so, in a formedon en le deseendre, is a rent reserved by the ances- tor, on a lease for life, s. 348. a right of entry or action is not, nor was a use at the common law, s. 270. but a trust is now , n. (/) ib. Assignee ; who is an, s. 100. Assize : an assize might be had by the tenant in dower against the heir entering upon her, s. 426. on ouster by a stranger of lessee for years with condition to have fee, the lessor shall have assize s. 708. does not lie for services in fea- sance, s. 673. in assize against baron and feme for a rent out of her land, she might be received, s. 449. vide Baron 5f Feme. Entry. Services. Appendant Sc Appurtenant see Incidents. Appointment : vide Uses. Attainder : attainder is by outlawry, ver- dict or confession, s. 27. or by act of parliament, s. 29. INDEX. Attainder : — continued. cannot be without judgment, s. 27. relates as to lands and tenements in outlawry to the exigent, by verdict or confession, to the commission of the felony, s. 28. but as to goods, no attainder relates beyond the judgment, s. 29. whether attainder is civil death, n. (6) s. 3. does not deprive a man of his capacity to be a grantor, S, 26. or a grantee, s. 48. Attendancy by Estate : see Dower. Attorney : generally any one may be an attorney, s. 185. even one dead in law, as a monk, ccc. s. 187. so a feme covert, ib. even for her husband, s. 199. an husband may be attorney to deliver seisin to his wife, s. 196. an infant cannot make an, s. 13. departing from his authority generally renders his act void, s. 187 to 19a. but if he do what is authorized, and more, this is generally good as far as authorized, s. 189. on livery by lessor, as attorney, on a feoffment by his lessee for life, s. 200 to 203. & note (cl) s. 201. and difference had he made livery for his lessee for years, note (ib.) vide liaron df Feme. Disseisor. Attornment : attornment was necessary to grants of reversions, incorpo- real hereditaments, ike. (ex- cept by matters of record), *. 1 13 lo 1 16. and must have Attornment : — continued. been in the lifetime of the parties, s. 231. 263. but by any tenant of the land was sufficient, s. 231. was necessary to perfect a grant of a rent-charge, although it were granted in a feoffment, and livery of seisin made of the land, s. 231. was requisite to the exchange of a manor, seignory.rent, rever- sion, &c. s. 249. 259. 263. 289. is now rendered unnecessary, and in some cases void, by statutes, n. (t) s. 114. feoffment of his tenancy by a tenant, to hold of his lord's grantee, amounts to, s. 669. by tenant is not an estoppel to him, s. 730. cannot make a bad grant good, s. 68. vide Exchanges. Avowry : avowry may be made for ser- vices lying in feasance, s. .673- might be by lord upon his tenant disseisee, s. 594. might be for the entire service upon parcel of the tenancy aliened, if the lord had not notice, s. b'84. avowry tor a jointennncy was not altered by a feoffment by one jointenant of his share, s- 653. before the statute quia tmptores, was not altered by the mar- riage of the mesne and tenant, or by the tenant's enfeoffing the mesne, s. 654. and might then be made by a joint mesne upon his fellow enfeoffed of tin tenancy, s. 655. Sa Avowry : — continued. may be by donor upon issue of tenant in tail who has dis- continued, s. 433. and the reason, n. (fc). in replevin for a renteharge, in another place than where the plaintiff counts, is good, s. 122. Authority : vide Licence. Power. Award : if void, need not be performed, even to save the forfeiture of a bond, s. 782. & n. (m). Baron and Feme : A man and woman are not hus- band and wife till marriage actually solemnized, although they be contracted, s. 194-5. are but one person in law, s. 195, & note (k) s. 8. not so in equity, n. (l) s. 11. if husband, in right of his wife, enter land in which she hath a right or title of entry, the freehold is in her, s. 46-7. 2 1 4. husband cannot now discontinue his wife's estate, n. (g) s. 422. feoffment by the husband only INDEX. Baron and Feme : ■continued. fore out of them before an- other enters, s. 45. so wife may be a disseisoress, and her husband shall be charged with the damages, s. 46. wife cannot be cestui que use of her husband disseisor, ib. see Attorney. Election. Escrowl. Estate Tail, Feme Covert. Husband. Bastard : may be a grantor, s. 26. a grantee, but not an heir, nor can have an heir, except his issue, s. 48. eigne, who is, n. (K) s. 49. can- not be bastardized after his death, n. (i) s. 49. if bastard-eigne enter into and hold land in possession or re- version for life, as heir to his father, it shall go to his issue, s. 49. and so shall land which he recovers in lieu thereof by voucher, ib. & n. (i). and so as to a moiety, in case of sis- ters, bastard and mulier, who enter and hold jointly as heir, s. 50. & n. (/c). of their joint estate, s. 223. livery made by wife, even of JfequestS : her own land, without assent vid . e Devises. Legatee. Testaments, of husband, is- void, s. 186. and both shall have assize for the land ; but the husband alone, if the land were his, ib. grant made to wife is good, and husband is seised in her right till he disagrees, s. 43. and example of a sufficient disa- greement by implication, s. 4 5. disagreement discharges him from damages for her occu- pation as grantee, s. 44. and it seems ab initio, ib. & n. (g). but the freehold is not there- to. Bill of Exchange : good, although the signature given upon blank paper, n. (6) s. 1 18. sccus of a deed, ib. Bishop : may be a grantee, and by that description, s. 55. vide Abbot. Corporation. Bond : vide Date. Infant. Legatee. Obligation. INDEX. Capacity : vide Grant. Grantor. Grantee, Sfc. Cestui que Use : before the statute of uses might charge his lands, &c. under stat. l Rich. 3,c. 1. s. 98. but could not grant a reversion or remainder under that sta- tute, n. (c) ib. text contra. Chose en Action : cannot be transferred at law, s. 86. but may in equit} 7 , n. (y) ib. Coke upon Littleton : 148. a. observation upon, n. (q) s. 71. 192. b.quare upon, n. (c) s. 197. Common : is neither land nor a tenement, s. 807. sed qu. common sans nombre cannot, as against one already entitled to that right, be granted to another, nor by a jointenant against his companion, s. 103. but may as against the grantor, s. 102. common appendant cannot be severed, s. 104. how particular grants of com- mon of pasture are construed, s. 108-9. Company : not incorporated, cannot be devisees, s. 510. Conclusion : vide Estoppel. Conditions : conditions are in deed or in law, s. 722. what conditions must be by deed, and what not, s. 714 to 716. and when the deed need not be shown, s. 716. Conditions : — continued. may be annexed to any descrip- tion of property or contract, s. 707 to 714. so to the de- livery of a deed, s. 715. and to releases, s. 718. what words make conditions, and how their language shall be construed ; and examples, s- 739 to 746. at what time conditions must be annexed to things executed and executory ; and examples, s. 717 to 721. how a condition in fait shall be performed ; what shall be con- sidered satisfaction ; and the difference between conditions to be performed to the party, and conditions to be perform- ed to a stranger ; and exam- ples, s. 747 to 786. for performance of any thing not comprised in the obligation, cannot be satisfied by a colla- teral thing, s. 749, &c n..(g), s. 750 to 753, & n. (/<)• at what time conditions must be performed ; and examples, s. 78710813. who shall take advantage of conditions executory, s. 830 to 838. and who of conditions executed, s. 839. entry for a condition in fait broken, restores the land in the same plight as when is was parted with; and exam- ple, s. 840. but this is not uni- versally true, ib. and exam- ples of this, s. 841-2-3. and entry for a condition in law broken, gives the land as it stands; bul neither is this always true; and examples, ». B44-5. three kinds of conditions in fait, i. e. against the law, repug- S3 INDEX. Conditions : — continued. nant, and impossible, are not good, s. 72a. the effect of annexing conditions against the law, s. 722 to 730. repugnant (and what are such), s. 731 to 734. or im- possible, s. 735 to 738 ; and examples, conditions must generally be strictly performed to claim their benefit, and inability does not excuse non-perform- ance ; and examples, s. 814- 15. but are sometimes satis- lied, although not strictly per- formed; and examples, s. 816, 817. performance of one part of a copulative condition avails nothing ; secus, of one disjunc- tive, s. 746. if the obligee be party to any act, by which the condition cannot be performed, the obligor is generally discharg- ed ; and examples, s. 754 to 771. and sometimes the first act must be done by the obli- gee, (s. 772.) or a stranger, (s. 774.) or the condition need not be performed ; and exam- ples, s. 772 to 777. but generally the performance of the whole condition lies upon the obligor, s. 778 to 786. and although the condition of an obligation is taken for the benefit of the obligor, this is subject to qualifications; and examples, s. 790 to 792. on the diversitv in the perform- ance of conditions, as they are to be performed by the grantor or grantee, &c. s. 800 to 803. an estate, &c. to which a con- Conditions : — continued. dition in fait is annexed, con- tinues charged therewith in the hands of every one ex- cept the king; and examples, s. 818 to 822. but the condi- tion is void against any one coming to the land by a prior title, s. 819. 821-2. 829. it may, however, in some cases, be thus discharged, and af- terwards revive, s. 822. a fee granted upon condition i3 freed by a release of the con- dition, to either a particular tenant or reversioner of the land, s. 823. but a release of an obligee from a portion of a severable duty does not discharge his obliga- tion, s. 824. whether, on a grant of an estate for years to be enlarged into a fee upon condition, the freehold passes immediately, s. 707-8. 710. it clearly does, where the estate is granted for life, although determinable by condition at the end of a term, s. 711. conditions that if lessor for years alien, &c, s. 729, 6c n. (c). or he or a stranger oust the te- nant within the term, he shall have the fee, how they ope- rate, s. 730, & n. (d. & e.) an impossible condition cannot enlarge an estate, s. 735-6. condition for re-entry on non- payment of rent, &c, what demand was necessary to enable lessor to take advan- tage of, s. 836 to 838, et notis. condition that lessee for life or years shall not alien, is good, s. 734- condition to do an act in a fo- reign country, and which INDEX. Conditions : — continued. could not be tried, was void, s. 737- obligation by a lessee for pay- ment of his rent, how operated upon by his ouster by the lessor, a stranger, the lessor's disseisee or coparcener, s. 825 to 828. on condition to pay an annuity, or sum in gross, if no place of payment be fixed, the obligor must seek the obligee, &c. s. 780-781. Confession : Vide Attainder. Confirmation : by disseisee, of disseisor's estate, is good, s. 86. Construction of Deeds : a deed shall have a reasonable construction, according to the subject matter, s. 108-111. and be taken most strongly against him who made it, s. 69. a grant by two, one of whom is capable, and the other not, binds the former, s. 4. 66. so a conveyance to two, one ca- pable, and the other not, takes effect wholly in the former, s. 203-4. for if a grantee be incapable or uncertain, the grant is void, s. 56. a grant gives an estate for life, if none be expressed, s. 104. to whom uncertain words in a deed, &c. shall relate, s. 178 to 181. construction of feoffment to one simply, or for years, pour autre vie, or for life, habendum to him and iiis heirs, s. 167, & 0. (n) s. 162. feoffment to one and the heirs of Construction of Deeds: — continued. his body, habendum to him and his heirs, s. 168, & n. (q). feoffment to two and their heirs, habendum to them and the heirs of their bodies, s. 170, & n. (r). feoffment to one and his heirs, habendum for years, or pour autre vie, n. (n) s. 162. feoffment to one in fee, (without words of limitation), s. 243. gift of rent to two to be per- ceived by them and the heirs, s. 181. feoffment to a corporation ag- gregate simply, or for their lives, s. 240, et addend, fo. 169. gift to A. and B. his wife, and the heirs of his body begotten, and if they die without heirs of their bodies begotten be- tween them, then over, good, s. 164. feoffment in fee by tenant for life with the ultimate remain- der in fee, to the first of two successive intervening tenants in tail, how held to operate at different periods, s. 621, & n. (i). feoffment to A., habendum to A. and 23., livery to A. only, void as to B. ; but it seems his name would be supplied in a lease and release, n. (0) s. 164. and if livery made to turn, lie would take by that, ib. operation of grant to a natural person and a corporation, s. 106, fie n. (g). how a grant of a rent by te- nants in common operates, s. 106, & n. (g). grant of a rent, till a certain S 4 ItfDEX- Construction of Deeds : — continued. sum be levied by it, creates an absolute terra, s. 105. but if till the heir of A. be of full age, it ceases by his death, n.(/>s. 105. grant by lessee for life of his estate, to one of his two les- sors jointenants in fee, good, and severs the jointenancy, s. 80 to 85, et notis ; so to one of his lessors coparceners and her husband, s. 85. 623. grant by lessee for life to the immediate reversioner enures as a surrender, s. 82. but not if he be seised in autre droit, ib. operation of grant by lessee for life of his estate to his reversioner, with remainder over, s. 620, & n. (h). operation of grant of his estate by lessee for life to his lessor and a stranger, s. 84, & n. (1). Vide Date. Estate Tail. Extin- guishment. Grant. Habendum. Incidents. Lord and Tenant, Corporation : — continued. or charge their lands in per- petuity, s. 35. spiritual and charitable corporations now deprived of this power by sta- tute, n. (1) s. 31. corporations cannut make a lease for years, or gift of chattels personal, without deed, s. 64. aggregate, not bound by grant of head alone, even for his time, except he be solely seised, s. 31, & n. (1) & 8. 133. but it binds his own pro- perty, and in some cases his person, s. 32-3. on feoffment by the head of a corporation aggregate jointly seised, s. 224-5. if a corporation aggregate re- cover in action, and the head die before execution sued, his successor shall have a scire facias to execute the judg- ment, s.499. Vide Abbot. Abbot and Convent . Company. Count : Vide Avowry. and the titles of the different Covenant deeds and clauses. Contingency : Vide Abeyance. Convent ': Vide Abbot and Convent. Coparceners : coparceners may enfeoff, or re- lease to each other, s, 193. a coparcener taking the estate of his companion by release is in en le per, s. 661. Coiporation : corporations may be grantors, 5,31. grantees, s. 51. 55. and by the common law might grant by lessee to leave a wood or house, &c. in the same plight, whether discharged by the act of God, s. 738. not to distrain for rentcharge upon a certain part of lands charged therewith, observed upon, n. (p) s. 69. Curtesy of England ; of what things a man shall not be tenant by the curtesy, I, 457. & n. (a), not of a right of entry or action only, s. 458. or a possession in law, s. 464. and it seems, not of a rent reserved upon a lease for life, s. 467, & n. (d). nor INDEX. Curtesy of England : — con- tinual. of a seignory (or other right, s. 470.) in suspense during the whole coverture, s. 459, 460. although the husband were the tenant, and his estate defeasible, s. 462. but lessee for years shall have curtesy of his wife's rent-charge in fee out of the same land, ut vide- tur. s. 461, & n. (6). there was not curtesy of a use before the statute, s. 457, 6c n. (a) s. 463, & n. (c). the husband shall have this es- tate in money to be laid out in land, 11. (a) s. 457. before the statute de donis there was curtesy of an estate given to the wife and her former husband and the heirs of their bodies, s. 465. husband takes by curtesy, al- though the land descend to his wife's issue by former husband, s. 466: so his wife's advowson in gross, although she die before it becomes void, s. 468. or it becomes void, and she dies after the six months, ike. ib. serf vide, n. (e). so of the wife's rent in fee, s. 469. the death of the issue unbap- tised, even through the hus- band's contumacy, 3.471. & n. (/). a disseisin during the coverture, s. 472. the death of the issue before the wife's sei- sin, s. 473. or a false or erro- neous recovery against hus- band and wife, s. 475. does not bar the husband's curtesy ; but his feoffment upon con- dition of his wife's land does, s. 474, & n. (g). Custom : a custom shall be taken strictly, s- 435- for an infant fifteen years old to devise land did not extend to a use, s. 504, & n. (d). Date : date of place where delivered not essential to a deed , s. 1 ao. which was yet said to be void, if dated at a fictitious place, s. 120. this date could not be varied from in pleading, s. 150,151. except in deed made by duress, ib. & s. 152. there- fore it was often prejudicial, and is now never inserted, n. (c) s. 120. if obligation dated abroad, or where the court had not ju- risdiction, an action could not be upon it, s. 121. 494. but the law is otherwise now. delivery, and not date, gives priority to a deed, s. 145. date of time in a deed may be varied from, in pleading, and how, s. 146 to 150. but the delivery cannot be al- leged before the date, s. 146 to 149, & n. (/), & s. 150. a defeasance or acquittance, dated before, but delivered after a recognizance, &c. must be so averred, s. 147-8. vide Deed. Probate. Dean and Chapter : vide Corporation. Death, civil : is an absolute disability, and grants by, s. 3, or to, s. 51 , persons under it, are void, how it is occasioned, n. (6) s. 3. 8 5 INDEX. Deed; writing, sealing and delivery, s. 117. 129, 130. and now generally signing also, n. (a) s. 117. are requisite to a deed ; and the clause averring the sealing was, 9. 128. but is not now, n. (e) ib. the writing must be before the sealing and delivery, or it is no deed, s. 118. but a sig- nature to a blank bill of ex- change binds, n. (6) ib. so if it be delivered unsealed, or written and sealed, but not delivered, s. 1 29. 1 37. it is not a deed, s. 130. but an escrow merely, and shall not bind, s. 129". 137. but what seal is used, or by whom it is affixed, is imma- terial, s. 130. and examples, s. 131-2. and one seal may serve for many parties, s. 1 34. except in cases under powers, n. (g) ib. loss or destruction of the seal made a deed insufficient, even although the seal was re- united, s. 135-6. but seethe modern law upon this, n. (/i) s. 135- deed takes effect from its de- livery, and therefore a grant of later date, but first de- livered, prevails over one of earlier date, s. 145. so its validity depends upon the time of its delivery, and not of its date, s. 149. and therefore where the time of execution is essential, the jury inquire of the delivery, and not the date, s. 146. can be effectually delivered but once, and therefore a second delivery is void, unless the first was absolutely so, s. 154- Deed : — continued. delivered us a deed to a stranger, to be delivered at a future period, or upon condition, binds immediately, s. 143-4. a deed void from uncertainty cannot be made to take effect by delivery, s. 56. a deed dated before time of memory was not pleadable (unless upon record) but might be given in evidence, s. 120. a deed generally suspicious from erasures or interlineations in material places, s. 122 to 128. (sed vide n. (d) s. 125). so from havingbeen in the smoke, s. 128. a deed must contain sufficient words, or it will not bind ; and illustrations, s. 155-6-7. a deed indented binds all by whom it is executed, s. 159. and indented, s. 160, or poll, s. 179, receives the usual construction, although some parties sgeak in the first per- son, and others in the third, n. (u) s. 179. what things might be granted without deed, and what not, s. 57 to 64. sed vide note (n) s. 61, as to the general alter- ation of the law in this respect by the statute of frauds. chattels, real and personal, might generally be granted without deed or writing : and examples, s. 57 to 61 , et notis. but incorporeal hereditaments, &C. could not be granted without deed, s. 60-61-2-3. 81. et notis. special properties of deeds ac- cording to their natures, where considered, fo. 37. n. ad Jin. cap. Deeds. INDEX. Deed : — continued. vide Construction of Deeds. Escrowl. Feoffment. Grant. Habendum, 8jC. Dedi : in a feoffment comprehends a warranty, and therefore in- cludes concessi, s. 124. Dejeazance : vide Date. Delivery : vide Deed. Escrowl. Deputy : who is a, s. 100. Deraigned : what, 11. (e) s. 3. Descent : vide Entry. Title if Entry. Description : a general description of the thing granted is sufficient, s. 68. reversion of rent and lands, passes hy the words lands and tenements' s. 114. 540. but not an annuity, ibid. so a reversion of a mill passes by a grant of the mill. a grant of goods and chattels does not include charters re- lating to land, s. 115. vide Grant. Grantor. Grantee. Rentcharge, Devises : who may make a devise ("and of what), and who cannot, s. 496' to 504, et notis. to whom devises may be made, and in what manner, s. 505 to 510. of what things may be devised or bequeathed, and what not, v. 511 to 527. as to chattels real and personal; and s. 528 Devises : — continued. to 554. as to estates of free- hold and inheritance at the common law. what estate shall pass by a de- vise, where a limitation is wanting or imperfect, s, 555. to 569. a devise passes only what it lawfully may, s. 579, 580. how the legatee or devisee is to obtain the thing devised or bequeathed, s. 570 to 580. devises of freehold are beyond the jurisdiction of the ordi- nary, s. 576. and need no proof before, him, s. 579. a devisee of a freehold es- tate may enter into it im- mediately, and without as- signment, s. 578-9. but by the custom of some cities it was necessary first to prove the will in their courts, s. 576-7- devise or bequest by a jointenant is void, s. 500, & n. (b) 526. so devise by an infant, s. 504. unless by the custom where he was 15 years old, ib. but this did not extend to a use before the statute, ib. & n. (d). a wife may be a devisee of her husband, s. 540. a devise to a parish church was formerly held good, s. 509. & n. (e). an immediate devise to one not in esse is void, and why, s. 505. so a devise in remainder to one who does not come in esse be- fore the precedent estates de- termine, .s. 506. a devise that the testator's exe- cutor, or the executors of his executor, shall si tl his lands, good, s. 507. and they may enter and enfeoff the vendee ; but till sale the inheritance is in the heir, s. 541 . S 6 INDEX. Devises : — continued. the difference where the devise is to the executors, s. 542. and further difference where the devise was to sell a use in lands only, s. 544. the consequence of their neglect to sell, s. 543; and on all these points, n. (m) there. and under devise that land shall be sold for payment of debts, the executors shall sell, s. 547. ;md the surplus will belong to the heir, n. (o) ib. tut a devise that land shall be sold, without saying by whom, or for what, is void, ib. where the land cannot be sold according to the power, the heir shall have it, s. 554. but in equity as a trustee only, n. (0) ib. lands were not devisable at the common law, except for a term of years, s. 528. 536 37-38. but are now by statutes, n. (r), s. 496. but lands by the custom, and uses before the stat. 27 H. 8. (i. e. while trusts only), were devisable, s. 496-7. 511. 528. 538, &c. so a remainder in such lands, s. 540. a devise of an estate tail may be by reference, without words of limitation, s. 561. and devise to one, or to one and his assigns, in perpetuum, or for ever, passes a fee, s. 557. 6c n. (r), s. 239. but not so if made to him and his assigns merely, n. (s) s. 557. under devise of a term to one and his heirs, it now passes to his executors, although for- merly doubtful, s. 558. & n. (0 559- & 560. devise of rent till the devisor's Devises : — continued. heir be of full age, how if operates, s. 105, & n. (f). a vested devise in remainder is good, although the precedent estate be void, s. 566-7-8. if a devise be in tail to the heir, with remainder to a stranger, the heir cannot enter and claim the fee, s. 569. and if he refuse, it seems the remain- der-man may enter immed iate- ly, ib. & n. (u). if a devise had been of a parti- cular estate, upon condition, with remainder over, it seems the heir might have entered forthe condition broken, with- out prejudice to the remain- der, s. 563-4-5. but now the condition shall be taken as a limitation, n. (u) ib. vide Testaments. Discontinuance : vide Baron and Feme. Disseisin : a gift of land in tail, made by duress, is a, to the donor, s. 17. of incorporeal hereditament* cannot be but at election of the owner, s. 98. one delivering seisin as attorney for an infant, is a disseisor, s. 13. a feme covert may be a, s. 46. an attorney to deliver seisin, ex- ceeding his authority, is, in some cases, s. 187-8. a disseisor having endowed the widow of his disseisee, the heir may still enter upon liirn for the remaining two-thirds of the estate, s. 427, & n. (i), et add. fo. 171. IKDEX. Dower : dower, at the common law, de- fined, n. (a) s. 300. attaches upon a defeasible estate in the husband, s. 420. in what cases it remains after the determinationof the estate it attached upon, and in what not, n. («) s. 300. & s. 317. 43*- m how it is to be prevented and barred, n. (a) s. 300. there are five manners of dower, ». 300. on what estate of the husband dower at common law at- taches ; and illustration, s. 301-2. the husband's seisin and pos- session in law is sufficient for dower; and examples, s. 303-4. neither a void marriage, nor a precontract only, gives a title to dower ; and examples, s. 304-5-6. and formerly a marriage in a chamber did not, s. 306. nor did the hus- band's civil death by entry into religion, s. 307. attainder of tenant in tail for felony deprived his wife of her dower, s. 308. the widow is not entitled to dower in land of which her husband is lawfully deprived by a title prior 10 her right to dower; and examples, s.309. to 312. but this did not ex- clude the wife of a villein from dower against his lord, s. 313. on the case of a neif in gross or regardant, widow of her lord, against his heir and feoffee, s. 314, & n. (c). on dos de dote, prior and subse- quent, s. 315, & n. (d), 316. in what cases a widow may elect out of which of several estates or hereditaments the will be Denver : — continued. endowed, and in what not ; and examples, s. 318 to 324. 3'27- but in a special case, it seems, she shall be endowed of both, as of land, and a rent after- wards charged upon it, &c. s. 324. A: n. (e), 325,326. 6; n. ( /'). and distinction where the rent is reserved upon an estate tail, or limited by way of use, n. ib. a woman claiming dower of land shall not be allowed for build- ings erected or destroyed by her husband's feoffee, s. 328, 329. Sc n. (g). where a widow accepts an as- signment of dower against common right, she takes in some measure subject to her husband's incumbrances; and examples, s. 330, 331,332. & n. (/<). the freehold and inheritance must be joined together in the husband to entitle his wife to dower, and where they are sufficiently so joined, ?• 333 t° 340- a precedent or intervening term occasions only a stay of execution dur- ing its continuance, s. 33^-6", Sen. (/<). of what things a woman shall be endowed, and how ; and ex- amples, s. 341 to 349, s- 32 & s. 34. & n. (a). to take in fee or in tail land lost by default in a real action, is determined by bringing a INDEX. Election : — continued. writ of right, or quod ei de- forccut for it, s. 75, & n. (r). of feme sole to take one of two acres in lee, is determined by act of her after-taken hus- band, s. 76. vide Dower. Emblements : tenant in dower is entitled to emblements by common law and statute, s. 522-3. but not of surplus land assigned her by guardian in chivalry, and recovered by the heir, s. 524. the executors, s. 518, or lessee 1'ir years, s. 513, of one seised in fee in right of his wife, and such lessee of tenant for life, s. 514, is entitled to, on his death, &c. : but such les- see is not against his lessor entering for a forfeiture, &c. or upon a recovery in waste ; but otherwise if the recovery were in a feigned action, s. 515. tenant in fee upon condition on the part of the feoffor, it seems, is entitled to, although it is said he could not devise them, s. 516, & n. (/). conusee of a statute staple in possession is entitled to, s. 517. an heir presumptive in by de- scent and sowing, but entered upon by an after-born heir, is entitled to emblements, s. 52 1 . but not as against a dowress to whom the land was assigned after sowing, ib. & n. (k). disseisor is not entitled to, against his disseisee who enters or recovers, s. 510. sed qv. as to corn severed, ib. whether issue in tail, who reco- vers against his ancestor's lessee for life, after the sow- Emblements : — continued. ing and dies before severance, is entitled to, so as to devise them, seems doubtful, $.5-20, & n. (g). Entry : a man may enter into liis land recovered, if liis demand be certain, s. 2o8. entry or assise by disseisee of a thing severable, may be into and fur part only, s. 232-3. so entry by one having title for a condition broken, or alienation in mortmain, s. 235. entry by disseisee of two acres in different counties into one acre, does not extend to the other, s. 229. lessee for years ousted by a dis- seisor, may enter and claim his term, even afler his lessor's entry is tolled by a descent ; but this docs not revest the estate of his lessor, s. 820. entry for a condition broken upon the grantee ol a parti- cular estate, defeats all re- mainders over, s. 564. un- less the condition be special to enter and hold, while the grantee would have done, s. 565- see Condition. Bight and Title of Entry, tyc. Escroivl : a writing sealed, but not de- livered, s. 137, or signed and delivered, but not scaled, s. 129, is only an escrowl. if delivered to a stranger upon condition, is not a deed till delivery by him alter per- formance of the condition, s. 138. and does not bind, although the grantee previous- ly obtain possession thereof? INDEX. Escrowl 142 —continued. s. 142. whether it shall then relate back, and how, in dif- ferent cases, s. 138, 6c n. (i), ftt s. 9, 10. if delivered by an infant to a stranger, and by him after the infant's full age, as his deed, is yet void, s. 139. delivered by a feme before mar- riage, upon condition, binds her and her husband, although not delivered as her deed till after her marriage, s. 9. the same case argued, s. 140-141 , and vide n. (k) there, but if she had been married at the first delivery, the whole had been void, s. xi. Estate Tail: examples of words which will create an estate tail, s. 169. to 173, & n. (r) s. 170, & n. (s) s. 171. cannot be inherited by issue if (he donee do not accept it, s. 78. if donee of a rent in tail bring 3 writ of annuity for it, the issue shall not have a formedon, . a- 79- divorce between donees in spe- cial tail by express words, does not vary their interest in the land, s. 238. an estate tail never merges, n. (b) s. 88. and must be held of the donor, for if given to hold of the chief lord, the tenendum is void, s. 637. Estoppel : the effect and different kinds of estoppel, n. (c) s. 3. a deed made in a wrong chris- tian name is, to a plea deny- ing '•• »• ('') s. 39. a void recital is nol an, s. 40, 4 1 . net is attornment, s. 730. INDEX. Estrovers t to be burnt in a house, certain, cannot be severed, s. 104. grant of, includes what, s. 116. vide Exchange. Exception : an exception is always of a thing which the grantor hath in hira, s. 639. of trees in a lease for life, good, s. 642. of an acre of land and an ad- vowson appendant, in feoff- ment of a manor, good, and makes the advowson append- ant to the acre, s. 643. •"of presentation to a vicarage, in grant of advowson of church which hath a parsonage and vicarage, good, s. 649. vide Reservation. Exchanges : of what things exchanges may be made, s. 244. 258 to 274. in what cases a deed was requisite to an exchange, and in what not, s. 244 to 251. by what words exchanges at the common law must be made, and of acts which pre- vent an intended exchange taking effect, s. 252 to 257. on the necessary estates of the parties to exchanges, s. 275 to 283. when the estates exchanged must be executed, to render them indefeasible, s. 284 to 298. parsons may exchange their benefices ; how, and when the exchange is perfected, s. 257. 288. an incorporeal hereditament, as a seignory, might be ex- changed for land, s. 259 to 263. even by way of release, s. 271. but as to a seignory in franhalmoigne, vide s. 260. Exchanges: — continued. and whether a seignory could be exchanged for the tenancy seems doubtful, s. 261. as to exchanges of land for rents, see s. 261-2-3. grant of a right of entry or action to a stranger in exchange lor land is void, s. 271. 280. so an assignment of dower to the widow in exchange for other land, s. 272. and so exchange by disseisor with disseisee, except by deed indented, or fine, s. 273. every exchange must be by the word eicambium or permuta- tion, s. 252-3. a proper exchange cannot be by fine, s. 256. and to exchange estates thus there inust be a separate fine for each, s. 257. an exchange to take effect in futuro is good, if of freehold in the actual seisin of both parties, but not otherwise, s. 265. equality of value is not necessary to exchange, s. 274. but the estates of the parties must be equal ; and examples, s. 275-6. whether jointenants for life, re- mainder to one of them in fee, can exchange with a third person in fee, s. 277, & n. (g), 6c s. 278. as to exchanges by husband, or husband and wife of her land, s. 279. 290, 291.293. exchange by lessee for years and his lessor, with another in fee, s. 279, & n. (h). by disseisor and disseisee with another, s. 280. by jointenants for an estate in common, and by tenants in common for land jointly, s. 281. INDEX. Exchanges : — continued. uii exchanges by tenant in tail of the lands in tail, and others, and subsequent agreement or disagreement by the issue, s. 294-5-6, et nntis. on an exchange void from want of title to part of the land, s. 297. & n. (m). an exchange by a lunatic might formerly be confirmed by his heir, s. 298, & n. (n). sometimes an exchange may be executed and avoided by the ' parties, s. 299. & 11. (n. 2). on the modern method of mak- ing exchanges, and the diffe- rent operation of exchanges at the common law, and those made under powers taking effect by the statute of uses. vide note fb. 60, ad Jin. cap. Exchanges. Excommunication : »• (/) s -47i- Executors : a feme covert may be an execu- trix, s. 7. but her husband may act for her testator, with- out her assent, n. (i) ib. if one be appointed executor, but another directed to sell and distribute the produce, he is executor for this purpose, s- 549- executors shall not have an action before probate, s. 482. must pay debts before legacies, and therefore a legatee can- not take his bequest without their assent, s. 488. 570. but assent of one executor to a bequest (even to himself) is sufficient, s. 572. and if he assent to bequest of part of a term to himself, this extends to a bequest of the residue thereof, s. 573, 6c n. (b). Executors : — continued. whether occupation by joint executors of land devised to them, or by a sole executor of land devised to his wife, for part of a term, be an assent, s- 574-5. & n. (c & d). on the powers of executors jointly and severally, and at the common law, and by statute, under a devise that they shall sell, s. 541-3-4-5, et notis, and 546 and 550, &' D. (9). it is said such power passes to their executors (un- less the first executors are named,) s. 549. 552. but not to their administrators, s. 549. if devise be that the executors, by their names, shall sell, they may, although they re- fuse to prove ; but if they are not named, it seems other- wise, s. 548, & n. (p). vide Delists. Infant. Powers oj' Sale in Wilts. Testaments, iS;c. Exigent : what, n. (t) s. 28. Extinguishment : of the whole seignory is occa- sioned by a release in juit thereof, or of the lord's right, in part of the tenancy, s. 71. so by a grant thereof to one of two jointenants in fee, s. 83. so a grant of seignory to the te- nant and a stranger, extin- guishes a moiety, s. 81. 618. vide Rentcharge. Services. Farmer to the King : what, n. (if) s. 5. a monk might be, s. 5. 51. grant made by one in this < haracter, good, although the grantor personally incapable, INDEX Feme Covert: source of legal disabilities of a married woman, and writers upon the law relating to, n. (/c) s. 8. a feme covert executrix might pay debts of her testator, and afterwards his legacies, with- out assent of her h usband , s. 7. sed vide, n. (i) there ; might also make a testament of her testator's goods, without such assent, s. 502. is not discharged of a covenant to pay money entered into by her while sole, s. 141. ought not to levy fine, and if she do of her land, her hus- band is not bound ; but if it be not reversed during the coverture, she and her heirs are, s. 20, & n. (h) s. 6. vide Baron and Feme. Exchanges. Executors, <$c. Feoff) ments : the peculiar operation of a feoff- ment, n. fo. 49. ad Jin. cap. Feoifments. any one in possession might pass the fee by a feoffment ; but this is now denied, and the consequence, ib. livery of seisin is essential to a feoffment, s. 182. who may make livery in their own rights, and who only for others, s. 184 to 192. who may make livery generally, but not to particular persons, on account of their relative situations, s. 193 to 197. one making livery for another Fines may take by it, s. 198-9. and even on his making livery in his own right, if he takes in another, s. 205. but not other- wise, s. 203. livery cannot be made to one Feoffments : — continued. in possession, s. 205. nor to the immediate reversioner in fee, s. 82. how livery of seisin is made by the sheriff, tiie owner, hi> attorney, &c. s. 206 to 210. cases in which livery is good by word, &c. only, s. 211-12. 215-16, & n. (/) s. 241. or made within view, s. 212-13- 14. and where good, although it varies from the charter, s. 203-4. cases in which livery is void from the presence of particular persons on the land, s. 218 to 225. in what cases an estate shall pass by livery of parcel, s. 226 to 235- when the feoffees shall take the inheritance without words of limitation, s. 236 to 243. on livery of seisin by an attor- ney to the survivor of two feoffees, s. 192. upon a con- dition added by the attorney himself, ib. & n. (J>). under a pow er given in the lunacy of the feoffor, to perfect a charter made while he was sane, &c. s. 23, & n. (s). operation of feoffment by dis- seisor and disseisee, s. 157. feoffment of two acres, habendum three acres, how affected by livery in the different acres, s. 165. vide Construction of Deeds. Habendum, fyc. note upon fines, fo. 49 b. the purposes for which the}* are now used, ib. when necessary to pass the estate or interest of a feme covert, and when not, ib. INDEX. Fines : — continued. iiovT lliey may be used, and their advantages and disad- vantages, as conveyances or bars of estates tail, ib. and fo. 49 c. how to be used to bind a right or contingent interest, fo. 49 c. "in what cases and by whom they may be levied, so as to gain a title by nonclaim, fo. 49 d. the immediate freehold is not generally esseutial for this purpose, ib. reference to writers upon fines, ib. a fine sur grunt et rendre for life, rendering rent, with clause of distress, good, s. 629. but a fine with clause of re-entry shall not be received, ib. vide^Wwt. Feme Covert. Infant. Forfeiture : is not incurred by lessee for life conveying to his lessor for years, remainder to another in fee, s. 203. Formedon ; vide Assets. Estate Tail. Franhnarriage : gift in, may be after the mar- riage, s. 237. lands might be given in, to the same woman on two marriages, s. 236. if the donees in, were divorced at suit of the husband, the wife, alone held the land, s. 238. Freehold : adjudged by law in the disseisor's heir, where he and the dis- seissee enter together, s. 3l8. of land, into which anyone hath right or title to enter, is in him by another's entry to his use, s. 4G-8. vide Baron and Feme. Gift: see Construction of Deeds. Elec- tion. Estate Tail, fyc. Glebe : by whom it might and may be granted or charged, and how far and for what time, and by whom not, s. 34-5 & n. (a Grants : a grant defined, n. (a) s. 1. a grantor, grantee, and thing to be granted, are requisite to a grant, s. 1. 1 19. although appearing to possess these, it may be void from the absolute or partial inca- pacity of the grantor, grantee, or thing granted, s. 2. 3. 4. 6. 12. 16. 18. 19. 32. 6* chap. Grants, passim, so from the defective or improper mode of assurance, s. 57 to 64, >\" title Deed. generally any subject of pro- perty in esse may be granted ; and examples, s. 57 to 11O', and text passim, so a rent even before seisin, s. 91. and a common, even although ano- ther hath possession thereof, s. 98. but there are many things which cannot be granted (at law), s. 65 to 103. and particularly, as regards modern practice, a right, s. 65. 85-6 ; a chose en action, s. 86 (sed tide note (1/) there) ; a contingent rc- nuiinder, s. 87; and an office of personal trust, s. 99 to 101. grant of an uncertain part of an estate might be made good by attornment, s. 73. grant of an uncertain thing i- to be made good bj tin- elec- tion of the grantee, ficc. I. 73 1079. Grants : — continued. what tilings shall pass by a grant of others as incident thereto, s. 112-116. a man cannot grant or charge that which he hath not, s. 65. 67. except in some cases, by fines executory, s. 65-6. a man cannot grant immediately to himself, s. 203. a subsequent grant shall not prejudice an elder title, s. 102. those acting under a void grant (or, in some cases, a voidable one only, ) are liable as wrong doers, s. 6. 7. 13. 14. 16, &c. •vide Construction of Deeds. Deeds. Grantor. Grantee. Be- servations, <£c. Grantors : who may be grantors, and who not, s. 3 to 35. generally all who do not lie under a particular incapacity may be grantors ; and exam- ples, ib. and text passim. but persons dead in law, s. 3. 4. et notis ; femes covert, s. b". 1 1 ; infants, in most cases, s. 12, 13, 14, et iwtis; persons imprisoned, s. 16, 17; luna- tics, s. 2 1 , & n. (r) &c. can- not make good grants, &c. how grantors must be described, s. 36 to 43. their names are inserted only for certainty, s. 36. the name alone is suffi- cient, without any addition, s. 37, & note ; but not the surname only, s. 38, sed vide note ; the effect of a false name of baptism, or addition, s. 38 to 40. 42, et notis. the false or insufficient descrip- tion of a grantor is cured by his livery of seisin of land, or delivery of a chattel, s. 42. INDEX. Grantees : generally every natural person and body politic, not lying under an absolute incapacity, may be a grantee; and ex- amples, s. 43 to 51. but a monk, or other entered and professed in religion, could not be a grantee, s. 51. 55, & n. (6). s. 3 ; and this seems the only absolute ex- ception. how grantees must be described, and what are sufficient de- scriptions, s. 52 to 57. if the name of the grantee be wanting in the premises, it may be supplied, n. (0) s. 164. the grantee must be able to take, i. e. in esse, at the making of the grant, s. 52-54. or, as to remainders, when they fall into possession ; and exam- ples, s. 52-53. Habendum : where the habendum or proviso shall be void, and wheie not ; and its construction, s. 161 to 177. if it agree with the premises, shall be good, but if it be re- pugnant, then void, s. 161. on feoffment to two, habendum to one of them is void, s. 163 ; but on feoffment to several, habendum to one and his heirs is good, ib. on eift to A. and B. (although husband and wife, s. 177)1 habendum to A. for life, re- mainder to 23. in fee, is good, s. 174. so on a gift of land to two, ha- bendum one moiety to one in fee, and the other moiety to the other in fee, s. 175. INDEX. Habendum : — continued and on a gift of land to two for theirlives, habendum a moiety to them in fee, is good, s. 177. but on the grant of two acres, habendum of one only, with- out enlarging the estate, is void, s. 175"6 but contra of a warranty, ib. if exchange be of one acre for another, habendum one of these acres and others in exchange, &c. the one only passes, s. 251. vide Construction cf Deeds. Deeds. Feoffments, &;c. Heir : this word equivalent to heirs in creating an estate tail, s. 171, & n. (s). whether heir, as a word of li- mitation, may be nomen col- lectivism in a deed, as it clearly may in a will, ib. no one can be heir to a living person, s. 52-3. vide Bastard. Construction of Deeds. Estate Tail. Feoff- ments, fyc. Homage : does not pass as incident to a rent-service, s. 115. where a tenancy is held by, the feoffee of part must give no- tice to his seignoress as well as to her husband seised in her rigiit, s. 685. contra if the tenure by fealty only. Incidents, Appendants and Appurtenants : pass by a grant of the principal thing; and examples, s. 112 to 1 1 6". Infant : gifts, grants or deeds by an in- fant, which do not take effect Iilfant : — continued. by delivery of his hand, are void, s. 12, 13. but such as do take effect by delivery of his hand are voidable only, s. 12 ; sed vide n. (m) s. 13. his exchange is voidable only, s. 295. infant levying fine can avoid it only during his nonage, s. 19. and if he be not inspected by the judges oefore his majo- rity or death under age, the fine cannot be reversed, ib. & n. (q). an infant is hound by his acts for his advantage; as by bond for necessaries, s. 14. but not if it be in a penalty, or he be resident with his parents, n. (0) ib. infant may present to ecclesiasti- cal benefices, s. 15. & 11. (p). trustee or mortgagee may con- vey under statute, n. (m) s. 13. appointed executor might act at 17, by common law, but by- statute not till he is 21, n. (n) s. 14, and might pay debts of his testator, «. 14, i.e. if he were above 17, n. (n) ib. infant may be a grantee, &c. s. 47. a disseisor by his ac- tual entry, ib. or agreement to a disseisin by another to his use, s. 48. the freehold of land into which he hath right or title to enter, i< in him by another's entry to his use, s. 48. Inquest : is the most sufficient proof in law, s. 791. Inrohnnit : vide With. INDEX. Jointenants : a natural person and a corpora- tion cannot be jointenants Vith each other, n. (g) s. 106. jointenants cannot enfeoff each other, s. 193. but feoffment by one to the other would now be construed a release, n. (c) s. 197. if one of three or more release to one of the others, he is in in the per, s. 84. a jointenant of the freehold can- not surrender to his fellow, although he hath the imme- diate fee, s. 586. whether a jointenant can, at the common law, grant his estate to a stranger for years, with remainder to his companion for life, in tail, or iu fee, s.197. & n. (c). one cannot, while his companion is present, enfeoff a stranger of the whole estate, s. 220. may hold by several services ; and example, s. 636. vide Common, Lease .• for years, to one of his own land by indenture, executed by him, binds him and his heirs by estoppel, s. 159. by tenants in common, how to ' be framed, n. (/1), s. 107. by cestui one use before the sta- tute, and equitable owner now, effect of, as to the right of dis- tress, &c. s. 692, & n. (i). Lease and Release : by infant, whether void or void- able only, s. 13, & n. (m). Legatee : a legatee has no remedy for his bequest but by suit against the executors in the spiritual Legatee ■' — continued. court, s. 570. or a court of equity, 11. (?) ib ; and they by fraud might formerly elude satisfaction, s. 571 • but the modern equity jurisdic- tion remedies this, n. (a) s. 571- of his situation if the executors reluse to prove, s. 483, cc n. (/). a legatee of a bond, &c. cannot sue thereon in his own name, s. 527. Lessee : lessee for years should do fealty, s.536, &n.(fc). if lessee of a villein entered into lands purchased by him, he held them for ever, s. 94. lessee of a manor holds an es- cheated tenancy only during his term, s. 96. of an advowson is entitled to present on an avoidance du- ring his term, s. 97. Licence : by deed, or party, and general authority by law, difference between, and breach or excess of, respectively , how to be con- strued and punished ; and ex- amples, s. 191-2. 6c n. (a). Limitation of Time against the King : there was not, s. 29. but this is now restricted by statute, n. (it) ib. Littleton s Tenures, s. 222 : observation upon, n. (•) ib. et vidt that note as to the ancient and modern law upon this. Manor : the origin of manors, s. 670. services are parcel of the manor, s. 116. vide Lessee. Lord and Tenant. Maxims : no one can by his own act only discharge himself from a thing he is bound to do, s. 141. the party to a wrong shall not take any advantage by it ; and examples, s. 201-2. a thing which is determined can- not be revived ; and example, s. 429. a man's own act shall be taken strongest against himself, s. 610. Merchant's Book : although sealed and delivered not answerable at law ; and yet by custom a debtor could not wage his law against it, s. 129. Monk : a monk was dead in law, s. 3 ; and therefore a grant by, (s. 3.), or to him, ( s. 51.), was void, except he were so- vereign of the house, s. 4. but he might beauatturney,(ib.) an executor, or a farmer to the king. s. 5. 51. nor could he be a grantor, s. 4. INDEX. Monk : — continued. but by leave of his sovereign he might make a testament of goods vested in him as exe- cutor, s. 502. Mortgagee : vide Infant. Mortmain : lord after parting with his rever- sion could not enter for, nor his grantee, if the alienation were before his grant, s. 95. Mulier Puisne : who is, n. (h) s. 49. et vide Bastard. Next of Blood : a good description of devisees ; and under it the children of a deceased daughter took in preference to a son to whom the estate was previously de- vised for life, s. 508. Non Compos Mentis : see Lunatic. Notice : see Homage. Lord and Tenant. Obligation : sealed and delivered by one named in it as a surety, binds him, s. 158, & n. (m). Opinions : adverse to divers cases in this book, defence against, s. 274. Parson : see Glebe. Power of Sale in Wills : if testator will that I, his heir, shall sell, this power is per- sonal, and does not survive, s. 550; et vide s. 552. if cestui que use had willed that his feoffees should sell, they should have sold jointly, &c. Power of Sale in Wills : — continued. according to their possession, B.551. and if it had been, they and his executors should sell, then these must have joined, s. 553. vide Devises. Executors. Precontract of Marriage : vide 11. [b), fo. 61. rendered a subsequent marriage with another voidable, s. 305. & note. Privies : privies in estate, fait, law, right, and blood, who are, s. 831- 2-3-5. in right, may take advantage of conditions executory, s. 832 to 835. Probate : dated before the will, made the latter void, as to bringing an action upon it, s. 150. see Executors. Testaments. Purchaser : whether a recoveror upon a false title is a, s. 812. & n. (p). Quod ei Deforceat : writ of, what, n. (r) s. 75. Common Recoveries : note upon, fo. 49 d. may be suffered of equitable and copyhold estates, and by tenant in tail in remainder, with the concurrence of the freeholder, ib. writ of entry must be against, tenant of the freehold, (legal or equitable), fo. 49 e. not essential that legal tenant should have the equitable estate, ib. that equitable tenant has legal estate, no objection, ib. INDEX Common Recoveries : — conti- nued. nor that equitable tenant has niortf aged his equitable free- hold, fo. 49. e. writ may be against tenant in tail in possession himself, but it is not usual, and why, ib. voucher by tenant in tail essen- tia!, ib. may be by tenant in tail or his issue, after the estate tail barred by fine, ib. where no use upon a recovery is declared, and it results to the tenant in tail, it does so in fee, fo. 49 f. Recover or in valve by Voucher : shall hold the lands recovered for the same estate as tliobe he lost, s. 96. Relations of Acts, and Time: see Attainder. Escrowl. Lord and Villain. Release of the Reversion : to one having an interesse ter- mini only, is void, s. 602. vide Construction of Deeds. Lord and Tenant, Sfc. Remainder : generally, is good only in re- spect of the particular estate, s. 53, and therefore limited by grant alter a void particu- lar estate, is void also, s. 56O, centra in the case of a devise, s. 567. in land, might have been created without deed, but cannot now, i.6l,& D. (n). contingent, cannot be trankferred at law, s. 87. Remainder : — continued. in fee, vested in tenant in tail, (is executed in, n. (b), s. 88.) and may be granted by him, Remitter : issue in tail shall not be remitted from a wrongful estate de- scending to him by his act, 1. 202. 397. Rent : demand of, how and when to be made, s. 838. reserved upon a conveyance in fee by deed indented, takes effect as the grant of the feof- fee, s. 687-8. in fee, purchased by tenant for life of the land, takes effect in his heirs, s. 81 . vide Abbot. Apportionment. As- sets. Attornment. Construc- tion of Deeds, &c. Rent charge : is extinguished altogether it' owner purchase part of the land charged, n. (q) s. 71. will pass by grant although the land on which it is charged be misstated, s. 72. granted out of church of St. Peter, cannot be charged upon church of St. Peter and Paul • s- 79- Reservations : what are words of reservation, s. 625 ; and examples, s. 626 to 635. 638. 640. 050. and what words of exception, s. 625 ; and examples, s. 639. 641 to 649. out of what things reservations ought to be made, s. 626, and case of grant of a mesnalty T IND Reservations : — continued. reserving fealty and rent, s. 627. reservation by the act of the law, and of the party, differ- ence between, s. 697 ; and examples, 698 to 701. what persous might make a te- nure by reservation, and to whom it might be made ; and examples, s. 651 to 670. — (this refers principally to the alteration made in the law of tenures by the statute Quia Emptores.) to make a tenure by reserva- tion at this day, the reversion must remain in the grantor; and examples, s. 686 to 695. what things may be reserved to make a tenure; and examples, s. 696 to 703. reservation in some cases ope- rates as a grant, s. 687. 702-3. reservation by grantor, &c. to himself of a less estate than he has, is void, s. 704-5-6. so a reservation of the reversion on lease for life by join- tenants, to them and the heirs of one of them, s. 706. reservation of an entire rent upon a lease by two tenants in common, enures to give each a moiety, s. 107, & n. (g) s. 106. reservation in lease of a right to cut and sell trees, how it operates, s. 643, & n. (a). Reversion : may be charged before it falls into possession, s. 92. remains in lessee for years, de- mising for part of his term, s. 693. EX. Reversion : — continued. in fee (by wrong) is gained by tenant for life giving the land in tail, s. 695, & n. (I). passes by the name of the estate in which it exists, s. 1 1 4-1 16, 540. of freehold upon a terra for years, passed by grant and attornment only, s. 221. vide Description. Right : a mere right cannot be charged, s. 65 ; or granted , s. 85-6. 27 1 ; except by way of extinguish- ment, as by release of right of entry to one in seisin of the estate, ib. ; and that must be by deed, s. 156. Rule in Shelley's case: s. 337. & n. (i). applies to limitations of a con- tingent use, Trevelyan v. Tre- velyan, fo. 169. Sale of Goods: by owner, to one who has them in possession, good, s. 92, but not a sale thereof by him to the owner, s. 93. Saving : a good ivord of reservation and exception, s. 645. 650. Seal: a separate, necessary for every party where a power required to be exercised under the hands and seals of several, n. (g) s. 134. vide Abbot and Convent. Deed. Seignory : a seignory is suspended by the lord's seisin for life of the tenancy, s. 88. and so by his intermarriage with his tenant, s. 459- INDEX. Seignori/ : — continued. is destroyed by the lord's alien- ation of the tenancy, while in his possession by disseisin, s. 843. or upon condition, after the condition broken, s. 89. nmy be granted while in sus- pense, s. 88, but not when the lord is seised of the tenancy upon condition, although that neither extinguishes nor deter- mines the'seignory, s. 89, &c n. (c). when it may be suspended in parcel, and when not, s. 71. vide Extinguishment. Lord and Tenant. % Seizure : vide Lord and Tenant. Lord and Villain. Services: by what services tenant for life, and donee in tail shall hold at this day, s. 695. services in feasance, how sus- pended, satisfied, or dis- charged, s. 671-2, might be distrained for, but an assize did not lie for them, s. 673. capable of severance may be partially released, s. 824. corporal services remain after lord's purchase of part of the tenancy; hut annual and se- verable are thereby appor- tioned ; if entire, are deter- mined, s. 71. but on descent of part of tenancy to the lord, entire annual ser- vices issue out of the remnant, ib. vide Tenure. Shcppard's Touchstone : p. 296, observed upon, n. (/) Statute : 1st Richard 3. c. 1. effect of, s- 544- operation of leases by cestui que use under, s. 691-2. Statute of Frauds: see 11. (n) s. 61 ; n. (a) s. 1 17 > n. (c) s. 197; n. (a) (b) 6; (c)s. 476-7-8.; n. (a) s. 496; 11. (a) s. 583. Surrenders : a surrender defined, n. (b) s. 585. surrenders are in deed or iu law, s. 606. what is a surrender in deed, and how and of what things it may be made, s. 607 to 615. sed vide n. (a) s. 583. of acts which shall be said a sur- render in law, and of others which shall not, s. 616 to 623. where they were good without deed, and where not, s. 581 to 583 ; sed vide n. (a) s. 583, (as to statutory provisions re- specting this). generally, what is created by deed must be surrendered by deed, s. 581. of what estates and things sur- renders may be made, and to whom, s. 584 to 624. grant or feoffment by tenant for life to his immediate remain- der-man, of the freehold, enures as a surrender, s. 616. so a grant by dowress of her estate to the reversioner, re- serving a rent, is a surrender, and the rent is sec. s. 6-23. if ic-v c for years accept a new lease, to l>< jgin before the ex- piration of his term, it is an immediate surrender thereof, s. 617, & ". (g). grant by lessee for life, to his T a INDEX. Surrenders : — continued. lessor and a stranger, is not a surrender of any part, s. 618-19, nor ' 3 a g raat by lessee for life of the wile tenant in fee, to her husband, s. 622. surrender by husband of his wife's dower from her former husband, good during the co- verture, but she might after- wards re-enter, and a descent would not toll this entry, s. (5 12. but his surrender of her term is indefeasible, s. 613. and they together by fine raaj surrender her freehold, ib. a parol surrender by an infant was void, s. 614. so a sur- render by duress, ib. and so is a surrender by a lunatic, 11. (f) s. 614. though formerly held otherwise, s. 614. generally a particular estate may be surrendered to the imme- diate remainder-man or re- versioner, (in his own right, s. 622.) s. 584. and excep- tion of jointenant, &c. ib. and s. 586. tenant for life cannot surrender to remainder-man for years, s. 589. but tenant for life in possession may surrender to tenant for life in remainder, S. 590. 616. tenant for life in possession can- not surrender to tenant in tail in remainder, after another estate for life, because the remainder is not immediate, 9. 588. remainder-man for life may sur- render to his immediate re- mainder-man in fee, s. 605. but not if their estates be di- vested, ib. tenant for years who has under- let may surrender his rever- Surrenders : — continued. sion, and then his tenant may surrender to the original les- sor, s. 604. so things issuing out of land, it is said, might be surrendered by delivery of the deed of grant to any one having an estate in the land, s. 585. 591. & n. (c). although but a possession in law, s. 595. &. n. (e). and such surrender by- grantee of a rent, of which another was pernor, was good , s. 606. tenant in tail cannot surrender, »■ 590- 59^' lessee for life or years cannot surrender part of his estate, s. 615. and a surrender by him to one of his joint lessors, enures to both, ib. a right of entry, title of dower, or an intrrtsse termini can- not be surrendered, but must be released, s. 600. & n. (rf) 601-2 ; sed nota the qualifica- tions, n. (e) s. 602. & s. 603. but a surrender cannot be to him who hath but a right in or to the land ; and examples, s. 585. & n. (/>), 594- 598. yet a surrender of a rent to the disseisor of the' land might have operated upon his re- entry, s. 594. a surrender of a term or free- hold may be upon condition, s. 624. surrender may be made by a copyholder according to the custom, s. 585. surrender may take effect as a grant, s. 588. Tenant at Will : one entering under an intended but void conveyance, is, s. 253- INDEX. Tenant in Tail: may grant trees or corn growing upon the land, s. 58-9. but the trees must be severed in his lifetime, s. 58. while the corn may be after his death, s. 59- devise by, was (and is) void, 8. 544- see Estate Tail. Surrender, Ac. Tenure : a tenure cannot be made by re- servation of services in pren- dre, s. 702. see Reservation. Testaments : testament by a married woman, and proved, is good, if her husband assent to it, s. 501. of personal property by an in- fant of the age of 14 years, good, s. 503, & n. (c). testaments are written or nun- cupative, s. 476. the latter were as strong as the former at common law, but are now regulated by statute, ib. & n. («). sealing nut essential to a will at common law, or by statute, s. 477, & n. (/,)• a later will, devise, or bequest avoids a former, s. 478. 481. and a written will might be re- voked by one nuncupative, s. 478. and still may, under certain restrictions, ib. n. (c). so such revocatioH might be by signs, s. 479 ; sed vide n. 60 ib must be proved by an executor, s. 484. and probate by one executor gives title to all, s. 485- ought generally to be proved before the ordinary, and the reason, s. 4b''J-7. proof before Testaments : — continued. his deputies is sufficient, s. 49°, 49 1- but if the testator has bona jiota- bilia in two dioceses, his will must be proved in the court of the archbishop of the pro- vince, s. 489, 6l n. (g). sometimes necessary to prove the jurisdiction of the court granting the administration, s. 492. a probate, or letters of admini- stration, cannot be directly traversed, and the reason, . s. 493- vide Date. Devises. Executors. Legatee. Probate, dfr. Tithes : when severed, may be taken by parson, s. 63. could not be granted for years to a stranger without deed, s. 62, & n. (0). but they may now be to a parishioner, ib. Title of Entry : what, and how it differs from a right, s. 47. is not tolled by descent of the estate, and why, s. 818, & n. {q). Transportation for Life : whether civil death, n. (b), s. 3. Trees Growing : a grant of, includes a right to cnier to cut and carry them, s. 1 10. vide Tenant in Tail. Trespass : writ of, cannot be had but by those seised [or possessed] in deed of the land at the time, s. 16. one distraining for a rent granted INDEX. Trespass : — continued. by duress, or in lunacy, is liable to a writ of, ib. might be had by feoffee upon condition after breach there- of,and consequent entry, s. 97. Trespasser ab initio : one misusing a distress for a rentcharge at the common law, was not, 11. (a), s. 191. and now clearly not, by sta- tute, ib. Trevelijan v. Trevelyan : fo. 169.' Trust : a personal, generally cannot be assigned over, or deputed, s. 99-100-101. Trustee : conveyance of estate vested in a, who is an infant, idiot, or lunatic, provided for by sta- tute, n. (»;), s. 13; n. (?•), s. 21. Uses, Fines and Recoveries : notes upon, and observations on the law on these points in the time of Ferkins, fo. 49 a. Uses : resulting or implied uses of land, &c. unknown before the sta- tute Quia Emptores, s. 528 ; and the reason, s. 529. this did not apply to grant of a rentcharge, in esse, s. 530 ; nor to grant of a rentcharge tie novo; yet of this there nei- ther was nor is any resulting use, s. 531, & n. (i) ; nor of common in gross, ut videtur, ib. sed qn. vide s. 537. the feoffee was, however, bound by a declared use, s. 529-37. and since that statute, a use re- sults on a feoffment in fee Uses : — continued. without consideration, or use expressed, s. 533. so, on the mere grant of a seignory by homage and fealty only, s. 532. but not upon a gift in tail, or a lease for life or years, 3- 534-5-6-7- expressed uses, however, bound in all these cases, unless the use were against the law, s. 5J37- whether the performance of a condition, created after a re- lease of right, to defeat the release, could raise a use, s. 718, & n.(b). whether the use results upon a feoffment on condition to re- enfeoff the feoffor, s. 793. & 11. (m). use before the statute of uses, might be passed without deed, even by executors under a power, s. 62. Note upon Uses, fo. 49 f. upon what assurances uses may be declared, ib. what at the common law, ib. the statute of uses, and its direct operation, ib. statutory use cannot be larger than the estate out of which it arises, ib. where the common law grantees have to act in trusts, the legal estate remains in them, fo. 49 f-g- the legal estate attaches upon the first uses declared, and any subsequent are mere trusts, fo. 49 g. mode in which a power of ap- pointment to uses operates, fo. 49 g. h. eyeu on an ap- pointment of a rentcharge, fo. 49 h. the statute applies only where INDEX. Uses : — continued. one person is seised to the use of another, ib. declaration of the use to grantee prevents the statute operating upon subsequent uses, ib. in sucli cases the declaration is for some purposes considered as part of the limitation of the estate, ib. such declara- tions may diminish the com- mon law estate of the grantee, ib. under conveyances to uses, a general power of appoint- ment, and the fee in default, may exist together in the same person, fo. 49 h ; hut it seems not if limited to him to whom the common law conveyance is made, fo. 49 i. on the execution of contingent uses, and the scintilla juris, ib. authors upon uses, fo. 49 k. Vicarage : vide Exception. Villain : in gross, laid in grant, and not in livery, s. 60, 61. villain regardant might be se- vered by grant, s. 104. Voucher : laid for the body in a writ of right of ward, s. 60. Warranty: — continued. in forma piedictd on a feoffment in fee, is a warranty in fee, s. 242. to a grantee, and the heirs aforesaid, relates to the heirs named in the habendum, s. 181. is good, although but from one of several grantors to but one of several grantees, or of but part of the thing granted, s. 176. Wardship : was part of the profits of a ma- nor, in execution upon a sta- tute, s. 517. whether wardship of the body could be granted without deed, s. 60, & 11. (»»). vide Voucher. Waste : writ of, could be had only by one to whose disinheritance it was, and not by any one not actually seised of the rever- sion, s. 95. Wills: inrollcd with proclamations, ac- cording to the custom in Lon- don and some other cities, bound as strongly as a fine, s-577- see Testaments. Warrant!/ : cannot enlarge or alter the estate JVoods, ( BoisJ : expressed in the premises, s. gre.it mid. I and underwood pass 165, &r. n. (p); and s. 166. by a grant of, s. 1 16. FINIS. 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