therefore it is held if such a Corporation as hath an absolute estate and authority of his possessions so as he may maintaine a writ of right thereof as Major and Communalty Deane and Chapter c. levie a fine of their lands they and their successors are barred presently but if a Bishop Deane or Prebend without assent of the Deane and Chapter or a Parson and Vicar without assent of the Patron and Ordinary had levied a fine this would not have barred the successor neither will it barre now with their assent for they are restrained by divers Statutes So also such persons are barred by the fines that are levied by others if they make not their claime in time as if one disseise a Corporation aggregate of land belonging to their Corporation and after levie a fine of it with Proclamations and they doe not make their claime c. within five years hereby they are barred 2. Where the Ancestor is barred by the fine there for Co. 9. 105. the most part the heire is barred also And therefore if tenant in taile be disseised and the disseisor levie a fine with Proclamations and the tenant in taile suffer five yeares to passe without claime c. hereby he and his issues are barred for ever so that the heire doth suffer for the laches of his Ancestor 3. The estates that shall be Co. 9. 104 5 124. barred by the fine are estates by the common Law or by Copihold in fee-simple fee-taile or for life or for yeares the estates also of â—enant by Statute Elegit and of Gardeins in Chivalrie and of Executors that have land untill debts and Legacies be paid And therfore if one enter upon and put out a Copiholder of land and levie a fine thereof and the Copiholder suffer five yeares to passe and make no claime c. the Copiholder and his Lord both are hereby barred for ever And if a lease be made for yeares and the lessor or another before entrie of the lessee levie a fine with Proclamations and the lessee doth not not make his claime c. within five yeares hereby the lessee is barred of his interest forever 4. The Plow 378. Bro. Fines 123. Co. 5. 124. things whereunto these Statutes doe extend are lands and tenements and not a Rent or other profit apprender out of the land and therefore if I have a rent common or Estovers out of land or a way over land or power to sell the land and a fine is levied of the land it selfe and I doe not make my claime of my rent c. within five yeares yet I am not hereby barred of my rent c. And for this cause it is that if a tenant in ancient demesne levie a fine of his land and five yeares passe the Lord is not hereby barred to avoid it foâ— herein he claimeth not the land but his ancient Seigniorie 5. The time in which they must make their claim or bring Plow Lord Zouches case 370. their action that have present right and no impediment is within five yeares after Proclamation had and the time for them which have impediments is within five yeares after the impediments removed 6. The time within which they must make their claime Dyer 3. Co. 3. 86 91. Plow 373. or bring their action whose right doth happen afterwards if they have no impediment is within five yeares after the time that their right doth accrew and if there be any impediment within five years after the impediment removed 7. The persons whose right is saved and preserved are mentioned in the first and second Saving of the Statute of 4 H. 7. and they are strangers and not parties nor privies 8. They that have benefit by the first Saving of the Statute shall have none by the second Saving for he that will be within the second Saving to have benefit by it must be 1 Another person 2 The right must come and acrew to him first 3 It must come to him after the fine and Proclamations 4 His right must be upon some cause or matter before the fine 9. No fine shall Co. 5. 124. 9. 106. barre any estate in possession reversion or remainder which is not devested and put to a right at the time of the fine levied And therefore if one levie a fine of my land whiles I am in possession of it this fine will not hurt me So if the tenant of the land out of which I have a Rent or Common c. levie a fine of the land this shall not barre me of my Rent or Common for I am still in possession of this in the judgement of the Law So if there be tenant for life the remainder for life or tenant in taile the remainder in taile and the first tenant in taile or for life doe bargaine and fell the land by deed indented and inrolled and after levie a fine to the bargainee in this case the remainders are not barred albeit five yeares passe without claime for the Law in these cases doth adjudge them alwayes in possession So if I make a Lease for yeares of land rendring a rent and a stranger levie a fine of the land and the lessee for yeares payeth his rent to me duly in this case I am said to be alwayes in possession and therefore am not barred by this fine of my reversion So if there be a tenant by Copy or lease for life the remainder for life and the first tenant for life accept of a fine of the land with proclamations and 5 years passe without claime c. hereby he that is in remainder is not barred So if one have a lease for years of land to beginne in futuro and a fine is levyed of the land and five years passe after the terme beginne it seemes this is no barre because this estate is not put to a right And for the further illustration of all these things see the examples following c Stat. 4 H. 7. 32 H. 8. Co. super lit 372. 1 Co. 9. 138. 140. Dier 3. If tenant in taile levy a fine of the land intailed with proclamations 2. Issue in taile barred by the fine of his Ancestor or some other according to the statutes this is a barre to the estate taile wherein these things are to be known 1. That wheresoever the issue doth claime by the same title and must make his Conveyance to the lands by him that levied the fine there the fine will barre him and therefore if lands be given to the husband and wife in speciall taile viz. to them and to the heires of their two bodies issuing or the like or if the gift be to them and the heires males or females of their two bodies or to them and the heires of their bodies with the remainder to the right heires of the husband in fee and the husband alone levieth a fine with proclamations by this the issue in taile is barred And yet so as the
n Plow 434 435. So if tenant in taile make a feoffement or be disseised and after levy a fine with proclamations for a stranger hereby his issues are barred for ever o Curia 21. Iac. Co. B. So if tenant in taile die and his issue before his entry having a freehold in law only doth levy a fine with proclamations this shall be a barre to his issues and to his collaterall heires and brothers of the halfe bloud p Idem So if a tenant in taile have foure daughters and one of them levy a fine in the life of the father this will be a barre to her issue for the fourth part of the land q Co. 3. 50 51. 9. 140. But in these cases before and such like where the issue in taile doth levy a fine in the life time of the tenant in taile the tenant in taile himselfe may after levy a fine of the land and thereby barre his issue and the Conusee also to whom his issue hath levied a fine and therefore in all these cases it is supposed that the tenant in taile doth dye and suffer the right to descend to his issue t Co. 10. 50. 9. 141. 3. 50 51. If lands be given by will to one when he shall come to his age of twenty four years to hold to him and the heires of his body and he after his age of twenty one years levy a fine of this land with proclamations this is a barre to the issue in taile If a disseisor make a gift in taile the donee make a feoffment to A. and after levy a fine with proclamations to B. that hath nothing in the land this fine will barre the issues in taile and they shall not avoid it by pleading that partes finis nihil habuerunt c. but it is no barre to the disseisee for he may avoid it by this plea when he will s Co. 3. 84. And à fortiori therefore if a fine be levied by the tenant in taile that hath only an estate of freehold in remainder or reversion is good as if A. be tenant for life the remainder to B. in taile and B. levy a fine albeit this be no discontinuance yet it is a barre to the estate Discontinuance taile t Trin. 21 Iac. Co B. Will. Godfrey versus Wades case But if tenant in taile have issue a sonne and a daughter and the sonne living the tenant in taile levy a fine and dye without issue and then the tenant in taile dieth by this the daughter and the estate taile is not barred So if the younger sonne levy a fine in the life of the father and then the tenant in taile dye this is no barre to the elder sonne So if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the sonne doth levy a fine of the land this is no barre to the daughter So if tenant in taile have a daughter his wife being with childe of a sonne and the daughter levy a fine and after the sonne is borne this fine shall not barre the sonne for these howbeit they be privies and heires to the bloud yet are not privies and heires to the estate 6. Albeit the estate passed by the fine be afterwards 〈◊〉 J Co. 3. 91. before all the proclamations had avoided yet the issue in taile is barred by it And therefore if tenant in taile discontinue in fee and after disseise the discontinuee and levy a fine with proclamations to a stranger and take an estate backe by Render in the same fine and the discontinuee before all the proclamations passe enter and claime and so avoid the fine yet hereby the estate taile is barred a Per Popham et Fenner Iust M. 39. 40. Eliz. B. R. And if tenant in taile infeoffe the issue in taile and after disseise him and levy a fine the issue enter and after the proclamations passe and after the issue in taile doth infeoffe the tenant in taile which levied the fine and dyeth it seemes this fine shall barre the issues in taile 7. This is a barre to the estate taile 7 Co. 1. 76. super Lit. 372. and to the issues onely and is no barre to him in remainder or reversion and therefore when the estate taile is spent this barre is at an end And therefore if an estate be limited to A. and B. his wife and the heires males of the body of A. the remainder to C. and A. and B. have issue and A. dye and B. and her issue or her issue alone levy a fine this will barre the issues of the issues whiles there be any but they faile it will not barre C. in remainder except he suffer five years to passe and so be barred by his non claime So if tenant for life and he that is next in the remainder in taile joyne in a fine this is a good barre to the issues in taile for ever as long as that estate taile shall continue but not to him that is next in remainder nor to any other that shall come in of any remainder in taile or in fee nor to him in reversion x Co. 10. 96. 9 Iac. B. R. If lands be given to A. and the heires males of his body the remainder to B. and the heires males of his body the remainder to the right heires of A. and A. doth bargain and sell this land by deed indented and inrolled to I. S. and his heires and after levy a fine of it sur Conusance de droit come ceo c. to him and his heires by this the remainder to B. is Discontinuance not discontinued but it is a barre to the estate taile by the Statutes and causeth the estate of the bargainee to last so long as the tenant in taile hath issues of his body but if the fine had been before the bargaine and sale it had been a discontinuance of the remainder but in neither case a barre to him in remainder unlesse he suffer himselfe to be barred by his non-claime within five yeares after his remainder happen to come in possession 8. If there be 8 Co. super Lit. 372 tenant in taile the remainder to him in taile and the tenant in taile levie a fine of this land hereby both his estates are barred Et sic de similibus y y Bro. Fines 121. Co. 6. 55. Dyer 4. Co. super Lit. 372. Co. 8. 17. 78. But all this notwithstanding If lands be conveyed to a woman in taile for her joynture within the Statute of 11 H. 7. chap. 20. and she levie a fine of this land this will not barre the issues in taile Or if lands be given in taile to any subject by the Kings own gift or provision and the tenant in taile levie a fine this fine shall not bind the issues in taile nor the King but others it will barre for these fines are
taile c. with divers remainders over and the tenant for life doth suffer a common recovery in which he doth vouch A who doth vouch the common vouchee in this case this is a good recovery and doth barre the estate taile the remainders and reversion also And if one be seised of land in fee and have two sonnes A by his first wife and B and a daughter by his second wife and he devise the land to his wife for her life the remainder to B his sonne in taile and the reversion of the fee descend to A and the writ of entry is brought against the tenant for life and shee vouch B and he doth vouch the common vouchee and so a recovery is had without the assent of the heire in reversion this is a good recovery and a barre to all the estates in possession remainder and reversion And if a writ of entry be brought against the tenant for life and he make default after default and then the next in remainder in taile is received or he pray in aid of him in reversion or remainder and then they vouch over and so a recovery is had this is a good recovery and a barre to all the estates in remainder and reversion But if the writ of entry be brought against the tenant for life him in the remainder in tail together and they vouch the common vouchee and so a recovery is had this will be no good recovery to barre the estate taile †See before in fines Co. super Lit. 44. And if Sprirituall persons as Bishops Deanes Parsons and such like suffer a recovery of their Ecclesiasticall lands such a recovery is voyd and will not bind the successor * Plow Manxelscase Co. 10. 37◠1. 94. Plow 357. But if it be not in some such prohibited case as before and the recovery be had and suffered by and between such persons and of such things and in such a manner as aforesaid in such cases albeit there be in truth no warranty made upon which the voucher is had and albeit there be nothing to be recovered in value for that the vouchee hath no land to recover over in recompence and albeit that no execution be done in the life time of the party against whom the recovery is had yet is the same regularly a perpetuall barre to the parties against whom the same is had and their heires of all the estates they have in fee simple fee taile or for life in them and against all them in remainder or reversion and their remainders and reversions that are depending upon the estates with this difference The recovery with the Co. 3. 59. Lit. Bro. Sect. 38. Plow Manxels case 12 Ed. 4. 13. 13 Ed. 4. 1. single voucher doth not barre any estate but such as the tenant in taile hath in possession at the time of the recovery had so that if the tenant in taile be in of any other estate as by disseisin or the conveyance of the disseisor or the like this estate is not barred But the recovery with the double voucher doth bind and barre all interests estates and titles that the vouchee hath at the time of the entry into the warranty All which is further illustrated by the examples following c Co. 3. 5. 10. 37. If the writ of entry be brought against the tenant in taile and he vouch the common vouchee and so a recovery is had this recovery with a single voucher is a good recovery and a barre to the estate taile if it be then in possession and not put to a right and to all the remainders and reversions depending thereupon d Co. 1. 135. 136. 3. 59. 12 E. 4. 19. 13 E. 4. Co. 10. 45. So if lands be given to A in taile the remainder to the right heires of B B being then living and the writ of entry is brought against the tenant in taile and he doth vouch over the common vouchee this is a good recovery and a barre to the estate taile and the remainder also But if the tenant in taile be disseised and then suffer a recovery with a single voucher or the disseisor make a new estate in taile to the tenant in taile and then the tenant in taile doth suffer a recovery with a single voucher or if the tenant in taile make a feoffement in fee of land and then take back a new estate to himselfe from the discontinuee in taile or in fee and then doth suffer a common recovery with a single voucher by this recovery the entaile is not barred But by a recovery with a double voucher in these cases the estate taile is barred And therefore as where the tenant in taile doth levy a fine make a feoffement or bargaine and sell the land by deed indented and inrolled and the writ is brought against the Conusee feoffee or bargainee and he doth vouch the tenant in taile and he doth vouch the common vouchee this doth barre the estate taile and the remainders and reversion depending thereupon So if in these cases the conusee feoffee or bargainee doth make a new estate in taile to the conusor feoffor or bargainor or he disseise the conusee feoffee or bargainee and then levy a fine make a feoffement or bargaine and sell to another against whom the writ of entry is brought and he vouch the tenant in taile and he doth vouch the common vouchee by this recovery the first and second estate taile Co. 3. 5. Plow in Manxels case 1. 8. and all the remainders and reversion depending thereupon are barred So if lands be given to I. S. and the heires males of the body of his wife engendred and he hath issue a sonne and after his wife dyeth and he discontinue and take an estate to him and the heires females of the body of his second wife and after discontinue againe and take an estate to him and the heires females of his owne body and after discontinue againe and the writ of entry is brought against the last discontinuee and he doth vouch the tenant in taile who doth enter into the warranty generally and voucheth the common vouchee this is a good recovery and a barre to all the estates in taile and the remainders and reversions also And if A before the Statute of uses had been tenant in taile and had made a feoffement in fee to B and he and B had after made a feoffement to C to the use of A and his wife and the heires of their two bodies and then shee had dyed and after A had entred upon C the feoffee and made a feoffement to W in fee against whom I S had brought a writ of entry and he had vouched A the tenant in taile this had been a good recovery and a barre to all the estates And if lands be given to husband and wife and the heires of the body of Co. 3. 5. 6. 32. the husband with remainders over to strangers and
to him and the heires females of his body begotten in both these cases it is an estate tail If lands be given to a man his his wife to have and to hold to them Lit. idem Co. 1. 140. Co. super Lit. 20. Co. 7. 41. and the heires males or to them and the heires females of their two bodies begotten by this they both have an estate taile And if lands be given to them the heires males or heires females of the body of the husband begotten on the wife by this he hath an estate taile his wife an estate for life only And if lands be given to A to have and to hold to him and his heires on the body of B begotten by this A hath an estate taile and B hath nothing So if lands be given to a man and his wife to have and to hold unto them and the heires he shall beget on her body by this they have an estate taile in them both If lands be given to a man and his wife and the heirs of the body of the husband by this the husband hath an estate in generall taile and the wife but an estate for life If lands be given to him to have and to hold to him and his heires he shall beget on the body of his wife by this he hath an estate taile and she no estate at all If one give his land to his daughter or Cousin in Frankmariage Lit. Sect. 17. by this they have each of them an estate taile without any word of heires or heires of body c. If one give lands to B and his heires to have and to hold to B Co. super Lit. 21. Co. 7. 41. 5 H. 5 6. and his heires if B have heires of his body and if he die without heires of his body that it shall revert to the donor by this B hath an estate taile So if one give lands to B and his heires if he have issue of his body by this he hath an estate taile So if lands be given to B to have and to hold to him and his heires provided that if he die without heire of his body that the land shall revert So if lands be given to A B uxori ejus hered eorum aliis hered ipsius A si dict'hered de dict' A B exeunt ' obierunt sine herede de se c. by this they have an estate taile And so in all such like cases where after a limitation of a feesimple these or such like words are added viz. that if he die without heires of his body the land shall revert for in all these cases the habendum is construed to be a limitation or declaration what heires are meant before If lands be given to A and B a young man and maid unmaried to have and to hold to them and the heires of their two bodies Co. super Lit. 26. Plow 135. by this each of them hath an estate taile and if they mary their heires may inherite it If lands bee given to the sonne to have and to hold to him and Co. super Lit. 7. Co. 8. 87. Ass Pl. 47. 5 Ass 14. his heires of the body of his Father by this the sonne hath a fee-simple But if the words bee to have and to hold to him and the heires of the body of the Father engendred by this it is an estate taile in a deed as it is in a Will And if the Father be dead the Law Will. is so also but it seems the sonne shall have by this only an estate for life except he be issue in taile to his father per formam doni So if there bee grandfather father and sonne and the father dieth and lands be given to the son to have and to hold to him and the heires of the body of the grandfather this is an estate taile in the sonne but neither the father nor the grandfather have either of them any estate in these cases If lands be given to I S and the heires of the 12 H. 4. 1. body of his wife being dead begotten by this I S hath an estate taile If one grant lands to I S to have and to hold to him and the Co. super Lit. 385. heires of his body issuing the remainder to I D and his heires in forma predicta by this I S and I D after him have each of them an estate taile If one grant lands to A to have and to hold to him for life the Co. 2. 91 super Lit. 22. 39. Ass Plow 20. remainder to the first sonne of A and the heires males of the body of that first sonne by this the first sonne hath an estate in taile and A his father but an estate for life only But if lands be granted to A for life the remainder to the heires of the body of A by this A hath an estate taile in him And if lands be given to a man and his wife to have and to hold to them and one heire of their bodies lawfully begotten and to one heire of the body of that heire by this there is an estate taile made yet so as it shall last only during the lives of those two heires If one grant lands to another to have and to hold to him and to Co. super Lit. 26. his heires of the body of such a woman lawfully begotten by this he shall have an estate taile for begotten shall be intended by the donee on that woman If there be husband and wife and they have issue a sonne and Co. super Lit. 26. daughter and lands are given to the wife to have and to hold to her and the heires of her late husband on her body begotten by this the wife hath an estate for life and the son an estate in taile and if he die without issue it shall goe to his daughter per formam doni If lands be granted to the husband of A and wife of B to have Co. super Lit. 20. and to hold to them and the heires of their two bodies by this they have each of them an estate in taile in them for there is a possibility that one husband and wife may dye and then the other husband and wife may intermary If there be father and sonne and lands are given to the father 12 H. 4. 3. Dyer 247. to have and to hold to him and the heires of the body of his son by this the sonne hath an estate taile but the father as it seemes but an estate for life If lands be given to the mother for life the remainder to her son Lit. Sect. 352. and the heires of the body of his father on her begotten the father being dead by this the son
hath an estate taile If lands be granted to I S to have and to hold to him and the 12 N. 4. heires he shall happen to have of his wife by this he hath but an estate taile and no feesimple and his wife hath no estate at all If lands be granted to I S and the heires that the said I S shall Co. super Lit. 20. lawfully beget of his first wife and he hath no wife at the time of the grant by this he hath an estate taile If A have issue by B his wife C a sonne D a daughter and A Co. super Lit. 26. die and lands are granted to B to have and to hold to her and to the heires of A her late husband on her body begotten in this case and by this deed C hath an estate taile the woman hath only an estate for life and if C die without issue D his Sister shall have the land per formam doni But if one grant lands to A late wife of I S to have and to hold to the said A and the heires of I S on the body of the said A begotten in this case the son and heire shall take no estate by the grant And the same construction shall be upon the same words in his Will Will. If lands be granted to the husband and wife to have and to hold Co. super Lit. 26. to them and the heires of the body of the surviver of them by this the survivor shall have an estate taile after the death of the other If lands be granted to I S to have and to hold to him heredibus Co. super Lit. 20. de carne sua or heredibus de se or heredibus quos sibicontigerit in all these cases I S hath an estate taile and no more If lands be granted to husband and wife to have and to hold to Co. super Lit. 28. him and the heires of the body of the husband the remainder to the husband and wife and the heires of their two bodies begotten this remainder is void and therefore by this the husband hath an estate in taile and the wife a joint estate for life with her husband and no more If lands bee granted to I S and his heires of the body of Co. 1. 140. Jane a Noke begotten by this I S hath an estate taile and no more If lands be granted to I S heredibus de corpore procreatis by this the heires that shall be begotten afterwards shall take And Co. super Lit. 20. if lands begranted to I S heredibus de corpore procreandis by this the heires of his body before begotten shall take per formam doni as well as those that shall be begotten afterwards If one grant to I S that if he and the heires of his body bee not Co. super Lit. 146. yearely paid 40. that hee or they shall distraine in the lands of the grantor by this the grantee hath an estate in taile in the rent as if he grant to I S that if he and his heires be not paid c. that he or they shall c. he hath a feesimple in the rent For life If one give or grant land to another to have and to hold to him Lit. Sect. 283. 285. Co. 8. 85. 96. 2. 24. Finches Law 60. Co. super Lit. 9. Dyer 307. Co. 7. 23. or to him and his assignes and say not how long nor for what time and the grantor make livery of seisin according to the deed by this the grantee hath an estate for his owne life But no livery of seisin be made no estate at all but an estate at will doth passe by this deed And if he that doth grant the land be but a lessee for years of the land and he make no livery of seisin upon the grant by this his terme of years and that estate which he hath is granted But if he make livery of seisin upon the grant then an estate for the life of the grantee will passe and it is a forfeiture of the estate of the lessee for Forfeiture 17 Ass Pl. 17. years of which he in reversion may take present advantage And if one grant to another Common in his land when he doth put in his owne beasts or Estovers in his Manor when he commeth there and say no more by this it seemes the grantee hath an estate for life If one grant land to I S to have and to hold to him or his heirs Co. 5. 112. super Lit. 8. in the disjunctive this is but an estate for life and no more So if one grant lands to I S to have and to hold to him and his heire in the singular number by this I S hath only an estate for life and no feesimple If one bargaine and sell land to another for money and limit no Co. 1. 87. 130. Plow 539. time and expresse no estate by this the bargaine shall have only an estate for life But otherwise it was before the Statute of Uses for then it had been a fee simple If lands be granted to I S for life and after to the next heire Co. 1. 66. male of I S and the heires males of the body of such next heire male by this I S hath but an estate for life But if it be to the next heires males of I S it is an intaile If one grant land to I S to have and to hold to him in fee 20 H. 6. 33. simple or in fee taile without saying to him and his heirs or to him and his heires males or the like this is but an estate for life and no more So if one grant land to I S to have and to hold to him and his feed or to him and his issues generally without more Co. super Lit. 8. 20. words by this is made only an estate for life But in the construction of a Will the law is otherwise in most of these cases Will. If lands be granted to two heredibus without this word Suis 20 H. 6. 35 by this they have an estate for their lives and no longer If one grant lands to I S to have and to hold to him and his Co. 5. 112. 1. 140. heires for his owne life or for the life of I D by this I S hath an estate for life and no more If one grant lands to A and B Habendum sibi suis omitting Co. 4. 29. super Lit. 1. 8. all other words or to have and to hold to them and their assignes by this they have an estate for life only So if lands be granted to any naturall person to have and to hold to him and his Successors by this he hath only an estate for his life If one grant his lands to I S to pay his debts to have and to Co. 8. 96. hold to him generally without limiting
the like it must be done at the time agreed upon and set down in the condition And in cases where it is to be done before a time certain it must be done before that time or else the condition is broken But in all cases where no time is set for the doing of the thing contained in the condition be it to pay money make an estate or the like if the act to be done bee to be done to the party that doth make the estate or be to be done to him and a stranger and be such a thing as is for the benefit of him that doth make the estate and for his benefit only there regularly the party that is to doe the thing shall have time to doe it during his life unlesse the party feoffor c. that doth make the first estate whereunto the condition is annexed doth hasten the doing thereof by request for if he request the doing thereof and set no time it must be done within a convenient time after that request and if he request and prefixe a time convenient when he doth desire to have it done it must be done at that time and in these cases the condition cannot be broken without a request so long as he to whom the estate upon condition is made be living And therefore To pay mony Testament in this case it is not like to a condition made by a Wil for if one devise his land to I S so as he pay the twenty pound to I D the Testator doth owe him and no time is set for the payment thereof in this case he must pay it as soon as it is demanded or he doth forfeit the land and the heir may enter But if the thing to be done be to be done to a stranger and be for the profit and benefit of a stranger only as if a feoffment be made on condition that the feoffee shall To mary I S. mary the daughter of the feoffor or on condition that the feoffee shall infeoffe a stranger and no time is set for the doing hereof in To infeoffe these cases the feoffee shall not have time during his life to doe it but he must do it in a reasonable time and that without any request at all or else he doth break the condition And in some speciall cases when the act to be done is to be done to the party himself the party shall not have time to doe it during his life as if one grant land To grant an Advowson or a rent to I S on condition that he shall grant an Advowson to the grantor for his life or on condition that he shall grant a rent charge to the grantor during his life to be paid at Michaelmas and our Lady day in these cases the grant of the Advowson must be before the Advowson fall and the grant of the rent must be before either of the days of payment come and that without request else the condition is broken And if the condition be that if I S do such an Perk. Sect. 9. 798. act that then the feoffee shall pay ten pound to the feoffor else To pay mony that the feoffor shall reenter and no time is set when the feoffee must pay this ten pound in this case it seems the payment must be as soon as the same act is done and that without any request at all And in case where the feoffee c. or a stranger be to doe an Co. super Litt. 209. act and he alone is to doe it and it doth nothing concern the feoffor c. as to goe to Rome or the like there the feoffee c. or stranger shall have time during his life to doe the thing and it cannot be hastned by request If lands be granted on condition that the grantee shall make a To make a lease Co. super Litt. 220 222. lease for life of other lands to the grantor the remainder to a stranger in this case the feoffee shall have all the time of his life to doe it if hee be not hastned by request But if the condition be to make a gift in taile to a stranger the remainder to the feoffor in this case it must be done in time convenient without request If the King licence his tenant to infeoffe A and B so as they give the land again to the feoffor and the heirs males of his body and he make a feoffment accordingly in this case it must bee reconveyed before the death of the feoffor or else the condition is broken If A infeoffe B of black acre on condition that if C infeoffe B Co. super Litt. 208. of white acre A shall reenter in this case C shall have time to do To infeoffe this during his life if B doe not hasten it by request If a lessee grant his estate to a stranger on condition that the To geâ— the good will of I S. Perk. Sect. 795. grantee doe get the good will of the lessor and no time is set when he shall get his good will it seems in this case he shall have time to get his good will during the terme and that although he deny it at the first yet if he grant it afterwards that this is sufficient When a time is set in certain for the payment of mony or the doing of any other thing generally neither agent nor patient are Litt. Sect. 342. Co. super Litt. 213. bound to aâ—â—end any other time And if the thing be to be done on a day certaine but no houre of the day is set down wherein the same shall be done in this case they must attend such a distance of time before the Sun set as may be convenient to doe that worke in And if the condition be to pay money at a place certain at any To pay money time during life in this case the money may not be tendred at any time in the place in the absence of him that should receive it but he that is to pay it must give notice to the other party before hand what time he will tender it that the other may be ready to receive it Or if at any time the parties hap to meet at the place a payment or tender then at that place is sufficient And the same law is for Obligation the most part in conditions of obligations In cases where a place is set down for the doing of the thing contained 3. In respect of place Co. super Litt. 210 211. 213. Litt. Sect. 343. 345. Bio Condition â—0 in the condition there it must always be done at that place unlesse by some agreement made between the parties afterwards another place be appointed otherwise the condition is not performed and the parties are not bound to attend in any other place But in cases where there is no place set down for the doing of the thing contained in the condition if the thing to
a man by his last Will and Testament devise lands to antoher man for life or in tail rendring rent to this estate there is a warranty in Law annexed The words Dedi concessi or Dedi onely in a feoffment make a Co. super Litt. 384. F. N. B. 134. Co. 4. 80. good warranty in Law But the word Concessi onely in fine or feoffment doth not make a warranty in law And albeit there be an expresse warranty in the deed yet this doth not take away the implied warranty of the Law And this warranty in Law by Dedi Concessi or by Dedi onely is a generall warranty during the life of the feoffor Every partition and exchange implieth in it and hath annexed Partition Exchange Co. super Litt. 102. 384. to it a speciall warranty in Law and how it shall bar and be extended see in Exchange Every tenure by homage Auncestrel i. where a tenant and his Co. 4. 80. Auncestors have held land of a Lord and his Auncestors time out of mind by homage hath a warranty in Law annexed to it by which the Lord is bound to warrant it to the tenant and his heirs If one make a gift in tail or lease for life of land by deed or without Co. super Litt. 334. deed reserving a rent or of a rent-service by deed in these cases there is annexed an implied warranty against the donor or lessor his heirs and assignes When dower is assigned to a woman there is a warranty in Law included which is that the tenant in dower being impleaded shall Co. super Litt. 384. vouch and recover in value a third part of the two parts whereof she is dowable And this warranty in Law is of the nature of a lineall warranty Co. super Lit. 384. and shall bind as a lineall warranty onely for it doth never barre any collaterall title And hence it is that this warranty and assets in some cases is a good bar as if tenant in tail exchange for other lands which are descended to the issue and he hath accepted of them or if not that other lands are descended to him But if tenant in tail of lands make a gift in tail or lease for life rendring rent and die in this case this is no bar And yet if other assets in fee simple descend this warranty in Law and assets is a good bar To every good warranty in deed that must barre and binde these Co. super Litt. 367. 7. What shall bee said a good warranty in deed Or not And how it shall bar and bind Infant things are requisite 1. That the person that doth warrant bee a person able for if an infant make a feoffment in fee of land and thereby doth binde him and his heirs to warrant the land in this case albeit the feoffement bee onely voidable yet the warranty is void 2. That the warranty be made by deed in writing for if a Litt. Sect. 703. Co. super Litt. 386. man make a feoffement by word and by word binde him and his heirs to warrant the land this is not a good warranty So if a man give lands to another by his last Will and thereby binde him and his heires to warrant it this warranty albeit the Will bee in writing is void 3. That there be some estate to which the warranty Co. 10. 96. Super Litt. 384. is annexed that may support it for if one covenant to warrant land to another and make him no estate or make him an estate that is not good and covenant to warrant the thing granted in these cases the warranty is void 4. That the estate to Co. super Litt. 378. 26 H. 8. 9. which the warranty is annexed bee such an estate as is able to support it and therefore that it be a lease for life at the least for if one make a lease for years of land and bind himselfe and his heires to warrant the land this is no good warranty neither will it have the effect of a warranty but this may amount to a covenant on which an action of covenant may be brought 5. That the wartanty Co. super Litt. 12. Litt. fol. 161 Sect. 735. 〈◊〉 descend upon him that is heir of the whole bloud by the common Law to him that made the warranty and not upon another for if tenant in tail in Burrough English where by custome the youngest son is to inherit discontinue the tail and have issue two sons and the Vncle release to the discontinuee with warranty and dieth this is no good warranty to binde the sonne So if in this case tenant in taile discontinue the taile with warranty c. having two sonnes and die seised of other lands in the same Burrough in fee simple to the value of the lands in taile the younger sonne is not barred by this warranty So if one give his land Litt. â—o 161. to the eldest sonne and the heires males of his body the remainder to the second sonne c. and the eldest sonne doth alien with warranty having issue a daughter and die this is no good warranty to barre the second sonne So if tenant in taile have issue two daughters by divers venters and die and they enter and a Litt. Sect. 737. stranger doth disseise them and one of them doth release all her right and binde her and her heires to warrant it in this case the warranty is not good to barre the sister but if they had beene by one venter contra So if two brothers be by demy venters and Co. super Litt. 387. Litt. Sect. 718. the eldest doth release with warranty to the disseisor of the uncle and dieth without issue and the younger dieth this is no good warranty to barre the younger brother for a warranty must evermore descend upon him that is heire at the Common Law to him that made it 6. That he that is heir doe continue to be so and Litt. Sect. 745. 746. that neither the descent of the title nor the warranty be interrupted for if one binde him and his heires to warrant and after is attainted of treason or â—elony and die this warranty doth not binde his heire So if tenant in taile be disseised and after release to the disseisor with warranty and after the tenant in taile is attainted of felony and hath issue and die this warranty will not bind the issue 7. That the estate of freehold that is to bee Co. 10. 96. 97. super Litt. 388. 21 H. 7. barred be put to a right before or at the time of the warranty made and that he to whom the warranty doth descend have then but a right to the land for a warranty will not barre any estate of freehold or inheritance in esse in possession reversion or remainder that is not displaced and put to a right before or at the time of the warranty made though after at the time
of the descent of the warranty the estate of freehold or inheritance be displaced and devested And therefore if there be father and son and the sonne â—â—th a rent-service suit to a mill rent-charge rent-seck common of pasture or other profit apprender out of land of the father and the father maketh a feoffment in fee with warranty and dieth this shall not barre the sonne of the rent common c. And albeit the sonne after the feoffement with warranty and before the death of the father had been disseised and so being out of possession the warranty had descended upon him yet this warranty should not binde him So if my collaterall Auncestor release to my tenant for life with warranty and die and this warranty descend upon me this shall not binde my reversion or remainder But if in the case before the sonne be disseised of the rent c. and affirme himselfe to be disseised by the bringing of an Assise for otherwise he shall not be said to be out of possession of a rent or the like and after the father doth release with warranty and die in this case the collaterall warranty shall binde and barre the son of his rent c. And if in the last case my tenant for life be disseised and my Auncestor doth release to the disseisor with warranty and die this is a good warranty to barre and bind me 8. That Litt. Sect. 734. the warranty doe take effect in the life time of the Auncestor and thâ—t he be bound by it for the heire shall never be bound by an expresse warranty but where the Auncestor was bound by the same warranty and therefore a warranty made by Will is void 9. That the heire claim in the same right that the Auncestor doth Co. super Litt. 370. for if one bee a successor onely in case of a corporation hee shall not be bound by the warranty of a naturall Auncestor 10. That Litt. Sect. 726. Co. 1. 67. 140. super Litt. 380. the heire that is to be barred by the warranty be of full age at the time of the fall of the warranty for if my Auncestor make a feoffment or a release with warranty and at this time I am within age and after he die and the warranty descend upon mee within age this warranty shall not bind me but if I become of age after the warranty of my Auncestor and before his death in this case the warranty may barre mee And in the first case it will barre me also whiles it is in â—orce but I may by my entry avoid it And the same Law is of a woman covert And yet if the entry of an infant or a woman covert be not lawful when the warrantie doth descend in this case the warrantie shall binde them as well as any other for such a warrantie cannot be avoided but by entrie and avoiding the estate And where the husband is within age at the time of the descent of a warranty to his wife and the entrie of the wife is taken away there the warranty shall bind the wife If lands be given to A for life and after to the next heir male Co. 1. 66. 44 Ed. 3. 30. 44 Ass pl. 35 of A and the heires males of the body of that heire male and A having issue B makes a feoffment of the land with warrantie to I S this is a good warrantie and a barre to the issue for a man may be barred of his right by a warrantie which hee could never avoid as where lessee for life is disseised and a collaterall Auncestor of the lessor doth release to the disseisor with warrantie and die and this doth descend upon the lessor by this he is barred A warrantie made for life or in taile is good and shall binde Litt. Sect. 738 Co. super Litt. 387. for so long onely as if tenant in taile of land let it for life the remainder to another in fee and a collaterall Auncestor doth confirme the estate of the tenant for life and die and the tenant in taile hath issue this is a barre to the issue during the life of the tenant for life And in this case upon a voucher the recovery in value shall be put for life onely If one make a gift in taile and grant to warrant the land given Co. 10. 96. according to the gift this warrantie is good no longer then the estate doth last And no warrantie that a donor can make in this case can bar him of the land if the donee die without issue and the estate determine And where a warranty doth bar it is entire and doth extend to Co. 8. 52. super Litt. 373. all the land and to all persons upon whom it doth descend and is a barre of all the right that every one of them hath in the land so that if they have all right jointly or severally or one onely hath all the right and the rest none he that hath the right is barred And therefore if lands be given to A and the heirs of his body and for want of such issue to E his sister and the heirs of her body and A doth make a feoffment with warrantie and die without issue having two sisters E and S this is a bar to E for the whole albeit the warranty descend on her and another If there be tenant for life the remainder to his sonne and heire Co. 5. 79. apparant in taile and the father doth a feoffement in fee with warrantie and dieth in this case this is a good warrantie and will bar the son albeit it be made of purpose to bar him But if by agreement and covin between him and A and B he make a lease to A who makes a feoffment in fee to B to whom the father doth release with warrantie thinking by a collaterall warrantie to bar his son this is no bar for this warrantie began by disseisin And if in the first case the son doth enter in the life time of the father upon the land he doth avoid the warrantie If the father bee tenant for life the remainder to the next heire Co. 1. 66. male of the father and to the heires males of the body of such next heire male and the father makes a feoffment to I S with warrantie and dieth it seems this warrantie is a good bar to the heir and in this case the heir cannot enter in the life time of his father for he cannot be heire male unto his father untill his fathers death If tenant for life make a feoffement with warrantie or be disseised Co. super Litt. 366. 365. Co. 1. 67. Stat. Glouâ— ch 〈◊〉 6. Litt. Sect. 724 725. and release with warrantie and he in reversion being heir to the tenant for life doth not enter but suffer the lessee for life to die and thereby the warrantie to fall and descend upon him in this case this warrantie generally is a bar without any
Sect. 719. be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the donee doth make a feoffment with warrantie and hath issue a sonne and a daughter and dieth this warrantie is lineall to the sonne and if the sonne die without issue male it is a lineall warrantie from the father to the daughter But if the brother in his life time release to the discontinuee c. with warrantie c. and after dieth without issue this is a collaterall warranty to the daughter Litt. Sect. 714. If lands bee given to the husband and wife and the heires of their two bodies engendred and they have issue and the husband discontinue and die and after the wife doth release with warrantie and die this is a lineall warrantie And if lands be given to a Co. super Litt. 375. man and a woman unmaried and the heirs of their two bodies and they intermary and are disseised and the husband doth release with warrantie and dieth and after the wife dieth this is a lineall warrantie to the issue for all the land And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue and the middle brother doth release with warrantie and die without issue and after the father dieth and after the elder brother dieth without issue and after the father dieth and after the elder brother dieth without issue so that the warrantie doth descend to the younger brother this is a â—neall warrantie to him And if a father give land to his eldest son and the heirs males of his body c. the remainder to the second sonne c. if the eldest son alien in fee with warrantie c. and hath issue female and dieth without issue male this is a lineall warrantie to the second sonne And in all these cases of a lineall warrantie if Litt. Sect. 711 712. Doct. St. 152 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple it is a barre without any assets for the rule is That as to him that demandeth fee simple by any of his Auncestors he shall bee barred and bound by a lineall warrantie that doth descend upon him unlesse hee bee restrained by some Statute But it doth not binde the right of an estate in fee taile without assets for in that case the rule is That as to him that demandeth fee taile by writ of Formedon in the Descendor he shal not bee barred by a lineall warrantie unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie and then it is a barre for so much onely as doth descend to him no more And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die in this case the issue of that issue is not barred by this warrantie and assets But if the issue to whom the warrantie doth descend bring his writ of Formedon and is barred by judgement by reason of the warrantie and assets in this case albeit he alien the assets afterwards yet the estate taile is barred for ever If tenant for life do alien in fee with warrantie or be disseised Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty And how such a warranty shall bar release to the disseisor with warrantie and die and the warrantie descend on him in reversion or remainder this is a collaterall warrantie So if the lessee for life be disseised and a collaterall Auncestor of him in reversion release with warrantie and die and the warrantie descend on him in reversion this is a collaterall warrantie for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. St. 152. land And if a man seised of lands in fee have issue two sonnes and the father dieth and the younger sonne doth enter and doth alien the land with warrantie and die without issue this is now a collaterall warrantie that is descended on the elder brother And if a sonne bee disseised of his own land and bring an 21 H. 7. 10. Assise and after the father doth release to the disseâ—sor with warranty and dieth this warrantie that doth descend to the sonne is a collaterall warrantie And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne and after he doth make a feoffment wich warrantie and die before the entrie of his sonne so that the warrantie doth descend this is a collaterall warrantie If there bee Litt. Sect. 707. father and two sonnes and the father is disseised and the younger sonne doth release wiâ—h warrantie to the disseisor and die without issue and then the father dieth in this case the warrantie now descended is a collaterall warrantie If a lease be made Co. super Litt. 388. for life to the father the remainder to his next heir and the father is disseised and doth release with warrantie and dieth this is a collaterall warrantie to the heire And if the husband discontinue the right of his wife and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die and after the husband dieth this is a collaterall warranty and a bar to her And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow 234. Kelw. 78. writ of Formedon if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty this is a collaterall warranty as if tenant in taile discontinue the taile and die having issue and the uncle of the issue doth release with warranty to the discontinuee and die without issue so that the warranty doth descend on the issue in taile this is a collaterall warranty So if such a discontinuee make a feoffment in fee or be disseised and the uncle release with warranty to the disseisor or feoffee and die without issue and the warranty doth descend on the issue this is a collaterall warranty If a tenant in taile have Litt. Sect. 708. three sons and discontinue the tail in fee and the middle brother doth release to the discontinuee with warranty and after the tenant in taile dieth this is a collaterall warranty to the elder brother If one have issue three sonnes and giveth land to the eldest Litt. Sect. 716. and the heirs of his body and for want of such issue to the middle and the heirs of his body the remainder to the third and the heires of his body and the eldest doth discontinue the
taile in fee with warranty and die without issue this is collaterall to the middle sonne In the same manner it is in case where the middle sonne hath the same land by force of the same remainder because his elder brother made no discontuance but died without issue of his body and after the middle brother doth make a discontinuance with warranty c. and dieth without issue this is a collaterall warranty to the youngest sonne And in this case if any of the sonnes be disseised and the father that made the gift c. releaseth to the disseisor all his right with warranty this is a collaterall warranty to the son upon whom the warranty doth descend If lands be given to A and the heirs of his body and Co. 8. 52. Litt. Sect. 713. for want of such issue to E his sister and the heires of her body and A doth make a feoffement with warranty and die without issue having two sisters E and S this is a collaterall warranty to E. If lands be given to a man and the heires of his body begotten Litt. Sect. 741. who taketh a wife and hath issue a son by her and the husband doth discontinue the taile in fee and dieth and after the wife doth release to the discontinuee with warranty and dieth and the warranty doth descend to the sonne this is collaterall to him If tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile doth release to the disseisor with warranty in fee and dieth without ifsue and the tenant in taile hath issue and dieth this is collaterall as to the issue If tenant in tail have issue two daughters and die and the elder enter into all to her own use thereof make a feoffment in fee with warranty and die without issue this warranty as to the other sisters part is collaterall but not as to her own If Co. super Litt. 373. the husband and wife tenants in speciall tail have issue a daughter and the wife die and the husband by a second wife have issue another daughter and discontinueth in fee and dieth and a collaterall Auncestor of the daughters release to the discontinuee with warranty and dieth and the warranty descend upon both the daughters this is a collaterall warranty to them If lands be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the father die and the brother release with warranty and die without issue this is collaterall to the daughter If tenant in taile make a lease for life the Litt. Sect. 738. remainder to another in fee and a collaterall Auncestor doth confirm the estate of tenant for life with warranty and die and after the tenant in taile die having issue this is a good binding collaterall warranty during the estate for life And in all these and Litt. Sect. 712. Co. super Lit. 374. Co. 10. 96. Stat. of Glouâ— ch 3. Co. super Litt. 365. Stat. 11 H. 7 chap. 20. such like cases of a collaterall warranty whether the right bee the right of an estate taile or the right of an estate in fee simple that is to be barred it is a bar without any assets for in this case the rule is That a collaterall warranty is a barre to him that demandeth fee simple and also to him that demandeth fee taile without any other descent of lands in fee simple so that the heir on whom the same warranty is descend can never have the land so warranted whiles the warranty doth continue in force but is bound thereby except it be in some speciall cases restrained by Act of Parliament as where the husband alone during his wives life or after her death being tenant by the curtesie make a feoffement by fine or deed of his wives land which shee hath by descent or purchase with warranty this will not barre her heire without assets of other lands in fee simple descended from the same Auncestor that made the warranty Or where a wife after her husbands death shall alone or with her succeeding husband alien release confirm or discontinue with warranty the land she holdeth in dower or in taile of the gift of her former husband or any of his Auncestors this warranty is voidable and will not binde with assets If the son purchase land c. and after let it to his father or any Litt. Sect. 699 700 701 702. Finch 82. Co. super Litt. 〈◊〉 10. What shall be said a warranty that doth begin by Dissâ—â—sin And wâ—at such a warranty doth work other Auncestor for years or at will and he by his deed doth infeoffe a stranger and that with warranty and after dieth whereby the warranty doth descend upon the heire this warranty doth commence by disseisin So if tenant by Elegit Statute Merchant Guardian in Chivalry or Soccage or because of Nurture make a feoffement with warranty and this warranty doth descend on his heir this warranty doth commence by disseisin So if one that hath no right at all enter into my land and make a feoffement to another with warranty So if one Coparcenor enter into the whole land and make a feoffement in fee with warranty this warranty as to the one moity doth begin â—y disseisin So if father and sonne purchase lands to them jointly c. and the father alien the whole to another with warranty c. and after the father dieth this warranty as to the one moity doth beginne by disseisin But if the purchase bee to them two and the heires of the sonne it is otherwise for if the sonne enter in the life time of the father the warranty is avoided for all but if hee doe not enter then as to the fathers moity it is a collaterall warranty And if the purchase be to the father and son and the heirs of the father and the father alien with warranty c. in this case the warranty is good for the whole If the father be tenant for life the remainder to his son and heir Co. 5. 80. super Litt. 366. 367. in fee and the father by covin and consent of purpose to bar the heir by a collaterall warranty maketh a lease for years to the end that the lessee should make a feoffment in fee that the father may release to the feoffee with warranty and all this is done accordingly and the father dieth and the warranty doth descend to the sonne in this case the warranty shall be said to beginne by disseisin But if the father in this case make a feoffement in fee with warranty and die this is a good warranty to binde the sonne albeit it be done of purpose to bar him So if one brother make a gift in taile to another and the uncle doth disseise the donee and infeoffeth another with warranty the uncle dieth and the warranty descendeth on the donor and
those two parts at his pleasure and no more for the third part must discend to the heir and come to satisfie the Lord his duties and therefore the Devise of the whole land in this case is void for the third part He that hath any such land held by Knights Service in Capite and other lands held by Socage Tenure may devise two parts of the whole and no more or any rent c. out of it at his pleasure He that doth hold land of the King by Knights Service only and not in Capite or if a meane Lord by Knights Service and hath also other lands held by Socage Tenuâ—e may devise two parts in three of all the land held by Knights Service or any rent c. out of it and all his Socage land at his pleasure So that now by these Statutes a man that hath lands in Fee-simple may devise them in Fee-simple Fee-taile for life or yeares absolutely or conditionall at his pleasure And therefore if one devise his land to one for life the remainder in Fee or Fee-taile to another or devise his land to B the remainder to the next heir male of B and the heires males of the body of such heire male or the like these are good Devises But for the more full understanding of these things it it to be known in the next place 2. That this Statute doth not enable men to devise land that are See the Statute Coo. super Litt. 111. Perk. Sect. 544. Lut. Sect. 287. Dveâ— 210. old N B 89. Perk Sect. 500 539 540. 496 497 498. disabled by Law in respect of their persons or minds as Infants women Covert men de non sane memory or the like nor such as are disabled in respect either of the nature of their land as Copi-holders for Copi-hold-land is not devisable or of the estate they have in the land as Tenants in Taile or pur autervie or Ioynt-tenants for these can no more devise the land they doe so hold then they could before the Statute But such as are seised of land in Common or Coparcenery may devise their land as well as those that are sole sâ—ised And if two be Ioint-tenants for life the Fee-simple to one of them he that hath the Fee-simple may devise his Fee-simple after the death of his companion Neither doth this Statute enable those that are seised of lands in Fee in the right of their houses and Churches to devise the same lands And therefore Bishops Deanes Pâ—rsons Vicars Masters of Hospitals or the like can no more devise the lands belonging to their Bishopricks c. then they could before the Statute but the lands they are seised of in their own right they may devise like other men 3. Heridiments that are not of any yearly value are some of them devisable 〈◊〉 10. 81. 〈◊〉 32. super 〈◊〉 111. and some not for if the King grant to one and his heirs bona catalla felonum fugitivorum vel ut lagatorum Fines and Amercements within such a Manner or Village in this case the owner can neither devise these things to another as part of the two parts nor leave them to discend for a third part And yet if one have a Mannor unto which a Leet Waife Estrayâ— or the like is appendant or appurtenant there by the Devise of the Mannor with the appurtenances these things may passe as incident to the Mannor But if a man have a Hundred with the goods of Felons Out-lawes Fines Amercements Retornabrevium and other such casuall Heriditaments within the same Hundred and these have been usually let to Farm for a rent in this case these things may be devised or left to discend for a third part 4. Such incertaine Franchises as before that are Heriditaments of no yearly value albeit Coo. 10. 8â— 82. super Litt. 111. Coo. 3. 35. 30. 34. they are not devisable yet may restâ—aine the devise of a mans lands and tenements and make it void for a third part if they be held in Capitâ— for if it is not requisite that the thing held by the Tenurâ— in Capite be deviseable and such things as may not bee left to discend to the Lord for a third part and to satisfie him his duties may notwithstanding be devisable or restraine the Devise of other lands and tenements and make it void for a third part And therefore a Reversion upon an estate taâ—le which is dry and fruitlesse if it be holden of the King by Knights Service in Capitâ— will hinder the Devise of the third part of a mans lands and tenements Also an estate taile of lands held in Capite may restraine the Devise of a third part of other lands And therefore if such lands be conveyed to one and the heirs of his body the remainder to another and he have other lands in Socage if he have any issue he can devise but two parts of his Socage land And where the Statute speaks of a remainder it is to be intended of such a remainder only as may draw Ward and marriage by the Common-Law and this is that remainder only that doth hinder a Devise And therefore if A be seised of lands in Socage Tenure and B be seised of lands in Fee held in Capite by Knights Service and B make a Lease for life or gift in Taile to C the remainder to A in Taile or in Fee in this case A during the estate for life or in Taile may devise all his Socage land notwithstanding this remainder But if a man make a Lease for life or yeares and after grant the reversion for life or in Taile the remainder in Fee and after the Grantee for life dyeth or Donee in Taile dyeth without issue in this case this remainder which now is in point of reversion will restraine the Devise of other lands and make it void for a third part 5. In all Coo. 10 81. 11 24. 3. â—0 34 35. supeâ— Lâ—â—t â—â—1 Dyer 158. cases where a man is restrained to devise any part of his lands held in Socage hâ— must have lands held in Capite at the same time and therefore the time of having of lands to devise and holding of other lands in Capite and disposing of the lands to be devised must concurre And therefore if a man be seised of an Acre of land in Fee held of the King in Chiefe by Knights Service and of other two Acres in Fee held in Socage and enfeoffee his younger sonne of the Acre held in Capite and of one of the other Acres or convey it to the use of his wife or for the paiment of his debts c. and after purchase land held in Socage in this case he may devise all the new purchased land held in Socage without restraint So if a man bee seised of lands held by Knights Service in Capite in possession reversion or remainder and of lands held in Socage and by his Will in writing doth devise all
the said lands and after the land held in Capite is recovered from him or aliened by him bonâ â—ide in these cases the Devise is good for all the land held in Socage And hence it is That if the King grant land to one in Fee Farm to hold in Socage at a rent and after grant this rent to another and his heires to hold in Capite and the Grantee of the rent doth grant it to him that hath the land in this case because the rent is extinct and he cannot be said to hold lands in Capite this shall not restraine the Devise of any of his lands And yet if a man hold some lands by Knights Service in Capite and other lands in Socage and bee disseised of the lands held in Capite he cannot devise all his Socage land but the Devise will be void for a third part for he is said to have that land still whereof hee hath the right And albeit the Statute say that he that hath lands held of the King in Capite and other lands in Socage may give two parts for the advancement of his wife paiment of his debts preferment of his children whereby he is restrained to devise any more And therefore if by act executed in his life time he convey two parts to any such uses or intents he cannot devise any more by his Will but the residue must discend yet this also is to be intended of the land he hath at the same time For if a man be seised of land held in Socage of the yearly value of 20l. per annum and he hath not any land held in Capite by Knights Service and he make his Will in writing and by it devise his Socage land to one in Fee and then purchase land of the value of 20 s. per annum held in Capite and die this will make the Devise void for a part of the land that is held in Socage But if a man seised of land in Fee of Socage Tenure assure it to the use of his wife for her â—ointure and after purchase lands held in Capite by Knights Service he may devise two parts in three of all this Capite land and the King shall not have any thing out of or for the Socage land If a man seised of lands part of which are Coo. 3. â—4 〈◊〉 â—4 held in Capite and part in Socage make a Feoffment of the lands held in Capite being two parts in three of the whole to the use of him and his wife for life with divers remainders over in this case he may not devise any of the Socage land And if a man have no Socage land but Capite land and convey it away iâ— Fee-simple keeping no Reversion to any such use and after purchase Socage land he may devise all the Socage land newly purchased 6. As Coo. 3. 32. the Testator enabled to devise by this Statute without restraint is and must be one that hath the land he doth devise at the time of the Devise made and no other land then to be an impediment to his Devise so he must have a sole estate as well in the land he doth leave to discend to the heir as in the land he doth Devise And therefore if lands held in Capite be conveyed to a man and his wife and the heirs of their two bodies and this man hath other lands whereof he is sole seised held of the King in Capite by Knights Service in this case he may not devise two parts of the whole supposing this may suffice for the Kings third part for he may devise but two parts of the residue i. e. of that whereof he is sole seised either at the time of making of the Will or at the least at the time of the death of the Testator 7. The estate of the land that is held must continue after Coo. 10. 8â— the death of the Tenant otherwise it will be no restraint And therefore if Tenant in Taile be to him and the heirs males of his body the remainder in Fee to another of Lands held by Knights Service in Capite and he is seised of other lands in Socage in Fee and by his Will in writing devise all the Socage land and die without issue male in this case the Devise is good for all the Socage land And so also it is where the estate the Ancestor had of the land held is defeated by condition 8. That which a man cannot dispose by any act in his life time shall not be taken for any such Mannors c. Coo. 〈◊〉 32. whereof a man may devise two parts by authority of this Statute at his death And therefore in the case of an indevided estate of lands between husband and wife where the husband can make no disposition for longer time then during the Coverture these lands are not to bee esteemed such as are to be accounted amongst the lands whereof two parts in three are devisable 9. The Tenure by Coo. 10. 84. 3. 34. Knights Service must continue after the death of the Devisor otherwise the land so held will be no restraint And therefore if the King grant land to one and his heires to hold during his life by Knights Service in Capite and after in Socage or to hold during his life in Socage and after by Knights Service in these cases the Grantee may devise all his land notwithstanding the Tenure of this land 10. The King or other Lord must have a full and clear Coo. 3. 32. 31. super L. 〈◊〉 111. 10. 8â— yearly value of the third part left to discend to him and the value is to be esteemed as it is and doth happen to be at the time of the death of the Testator for the King or other Lord must have the like and equall benefit for his third part as the Devisee hath for the two parts without diminution or substraction when therefore a man will have his Devise good for the residâ—â— he must take care that the third part be so left for if the third part be not valuable or be charged with any rent c. or be upon any incertainty as if it be upon a possibillity only as where a man and his wife be seised of a joint estate Taile made during the Coverture and he Devise other lands to her on condition that she shall wave her estate made during the Coverture and so intend that that part of his land shall be left for the Kings part this Devise will not be good for the residue and albeiâ— the wife doe wave the estate after the husbands death yet this will not help the matter or make the Devise good for that part for which it was void before But it is not materiall by what Tenure the third part discending be held For it is holden by the better opiâ—ion That if a man be seised of 20 l. land held of the King in Capite and 10 l. land held
cannot devise by his Will any part of the third Acre and after he purchase three Acres of equall value held in Socage that in this case because he hath the reversion in Fee upon the estate Taile made to the younger sonne he can devise no more but two parts of the said land so newly purchased But if the reversion be gone before the purchase he may devise the whole Coo. 6. 16. super Litt. 111. but if a man be seised of lands in Fee part of which are held of the King in Capte by Knights Service and he convey two parts of it unto any of his sonnes or to the use of his wiâ—e for life or in Taile in this case albeit he may not devise any part of the residue yet he may by his Will devise the reversion of the two parts And in case where he hath not conveyed the full two parts he may devise so much as to make up that hee hath conveyed full two parts And it was further resolved in the same Leonard Loveâ—s case That whereas the Statute saith All persons c. having c. of any Mannors c. in possession reversion or remainder c. and the Feoffor L L in the case before had a remainder in Taile expectant upon the estates in Taile limited to the sonnes that this remainder was not within the Statute nor would have restrained the Devise but for the reversion in Fee afterwards A B being seised in Fee of the Mannor of Gracediu held in Capite and of the value 30 l. per annum and of the Mannor of Normanton held in Capite of the Coo. 11. 23. Henry Harpurs case value of 18 l. per annum in consideration of a marriage with M did covenant to stand seised of the Mannor of G to the use of himselfe and the heirs males of his body on the body of the said M and after to the use of W B his brother and the heires males of his body and after to the use of another brother in Taile and after to the use of his own right heires and of the Mannor of N to the use of himselfe and M he is to marry and the heires of his body and after the remainders as before of the other Mannor and after the marriage is had and A B doth purchase other lands held in Socage of the value of 3 l. per annum and then devised the same new purchased lands in this case it was adjudged that the Devise was void for a third part of the Socage land in respect of the reversion dependant upon the estate taile and yet that it was a good Devise for two parts of the new purchased land albeit he had executed his power and given more then two parts to the use of his wiâ—e And in these cases where a man hath land held in Capite and other land Coo. 10. 83. and he convey the land held in Capite to any of the Uses within the Statute as to his yoâ—â—ger children or the like or convey it with power of revocation only so that he hath power of the land still and after he purchase land held in Socage in this case it seemes hee may devise all the land newly purchased as if the land were conveyed without any such power of revocation A being seised of land in fee Coo. 6. 17. Sir Edwards case held of the King in Capite made a Feoffment of two parts of it to the use oâ— his wiâ—e for her life for her Jointure and after made a Feoffment of the third part to the use of such person and persons and of such estate and estates as he shall limit and appoint by his last Will and Testament in writing and afterwards he did by his last Will in writing devise this third part to one in Fee in this case it was resolved that the Devise was good for the whole third part And yet if a man make a Feoffment in Fee of land held in Capite to the use of his last will albeit the devise of the land be with reference to the Feoffment yet it is void for a third part E B being seised of 6 Mannors the one in Fee and the rest in Taile with the Coo. 10. 81. Tr. 34. Eliz. Bedinâ—ields case reversion expectant to him and his heires and hath issue T B divers of which Mannors are held of the King in Capite by Knights service and every of them of equall yearely value by his last Will in writing did devise all the said Mannors to divers persons and their heires for payment of his debts and advancement of his children and then died and the estate in taile that discended to his issue was more then a third part of all in this case it was resolved that the Devise was good for two parts of the reversions and for the entire Mannor in Possession and not void for a third part of the Mannor in Possession and for all the reversions in Fee A man being seised in Fee of Gavelkind land in Kent part whereof is held of Coo. Rep. Stamf. Per. 8. the King in Capite and part of Common persons in Socage hath issue A who hath issue B C and D and A deviseth some of these lands to B and some to C and some to D his Grand-children in taile in this case the Devise is void for a third part of the whole aswell for the land held in Socage as the land held in Capite And yet if in this case no Will be made the King shall have but a third part of that which doth discend to the eldest sonne the heire at the Common-law and not the third part of that which doth discend to the younger sonnes by custome And if lands devisable by custome come into the Kings hands and he grant them to hold of him in Capite and the Patentee devise them to the use of his wife children or for paiment of his debts c. in this case the Devise is void for a third part And here note that in all the cases before where a man is restrained to devise a third part of his land if he devise the whole the Devise is good notwithstanding for so much as he hath power to devise And as touching the thing devised is further to be known 13. That a man must have right to and possession of the land he deviseth or else the Devise is not good Plow 485. Devise of a right to Land or of Land that is another mans And therefore iâ— a Disseisor devise the land he hath gotten by Disseisin this Devise as to the Disseisee is void And if a man be disseised of his land so that he hath nothing but a right thereof left and then he devise this right or devise the land this Devise is void And if one contract for land aâ—d pay his money for it but Nevils case hath no assurance of the land and he devise this land to
this doth not alter the custome but by this all the sonnes shall take If a man devise his land to his wife for life the remainder to â—â—tz 〈◊〉 2. his sonne and the heirs males of his body engendred and for default of such issue the remainder to his next heir male and the heires males of the body of that heire male and after his sonne die without issue living his wife and the Devisor hath issue a daughter who hath issue a sonne in this case and by this Devise it seemes the daughter and not her sonne shall have the land and that in Fee-simple If a man devise his land to his wife for life and after to his own Trin. 9. â—ac Aâ—â—â—dged Curteâ—s case right heirs males and he hath issue three daughters and after his death one of them hath a sonne in this case and by this Devise the next collaterall heire male of the Devisor and not the sonne of the daughter shall have the land If a man have issue two sonnes and a daughter and devise his Dâ—er 122. land to his wife for tenne yeares the remainder to his younger sonne and his heirs and if either of the said two sonnes die without issue of their bodies the remainder to the daughter and her heirs and the younger sonne die in the life time of the father and after the father die in this case and by this Devise the daughter hath a good remainder but it seemes the elder sonne hath first an estate Taile by the intent of the Devisor If a man devise some land to A his eldest daughter and her Dâ—eâ— 330. heires and if she die without issue to T his youngest daughter and her heirs and if she die within 16 years that A shall have her part to her and her heirs and if A marry such a one that T shall have her part to her and her heirs and if T die having no issue that all her part shall goe to M and E his Neâ—ces and if A die without issue that T shall have her part to her and her heires and T after the 16 years doth die without issue in this case the Neeces M and E and not A shall have her part that is dead If land be devised to A for life the remainder to a Monke for Perk. Sect. 5â—6 â—67 life the remainder to I S in Fee by this Devise he in the remainder in Fee shall take presently after the first estate for life ended and if the Devise be to a Monke for life the remainder to I S in Fee by this I S shall take presently If a man devise his land to a womâ—n and her brother and the Dyer 326. heirs of either of their two bodies and for default of issue of the said woman and her brother the remainder to the right heires of the Devisor and after the death oâ— the Devisor the brother dyeth without issue and the sister hath issue and dyeth in this case and by this Devise her issue shall have a moity and no more of the land If one devise two parts of his Land to his four younger sonnes Dyer 304. in Taile and that if the Infant in the wombe of his wife be a sonne that he shall have the fifth part as co-heire with the four and if his five sonnes die without issue that the two parts shall revert and then the Devisor dyeth and after a sonne is born and after he and three of the other sonnes die in this case and by this Devise the Infant shall not take any thing because he is uncapable and the two parts shall not revert to the heire untill the five sons be dead without issue If one devise the Mannor of Dale to the eldest sonne of I S in Adiudged Co. B. M. 36. 37 Eliz. Brownes case Fee and the Mannor of Sale to I D for life the remainder to such of the children of I S as shall be then living and shall have the Mannor of Dale and the eldest sonne of I S after the Testators death doth sell the Mannor of Dale and after I D dyeth in this case and by this Devise none of the children of I S shall have the Mannor of Dale but it shall goe to the heires of the Devisor If one devise his land to the children of I S by this devise the children that I S hath at the time of the Devise or at the most the children that I S hath at the time of the death of the Testator and not any of them that shall bee borne after his death shall take If one have two daughters by divers women and devise a moity of Dyer 34â— his land to his wife for seven yeares and that the elder daughter shall enter into the other moity at her day of marriage and if his wife be with child of a daughter that then she shall have an equall portion with the other sister and the Devisor dyeth and the wife doth enter and hath not a daughter and then the elder daughter doth take a husband and enters upon a moity the younger daughter dies without issue and the seven years expire in this case and by this devise the collaterall heir of the younger daughter shall have the moity of the whole and not the moity of a moity only and that by discent If a man have issue B C and D sonnes and he devise his land Curia B. R. Mich. 20. Iaâ— Next of blood to D his sonne the remainder proximo de sanguine or to the next of blood of the Testator in this case and by this Devise B shall take after the death of D as the next of blood In like manner if the Testator have four daughters and he devise his land to the youngest in Taile the remainder to the next of blood by this Devise the eldest daughter and not all the rest shall have the land And if the Testator have issue B his elder sonne and C his younger son and B have issue D his sonne and B is attainted and dyeth and the Testator deviseth his land to I S for life the remainder to the next of blood of the Testator by this Devise D and not C shall have the land If a man have issue B and C sonnes and D a daughter and devise Broo. Dâ—scent Piâ— 19. 8. Aâ—â— Pl. 4. his land to C for life and after that it shall remaine to the next of blood to his children to the next heirs of the blood of his children and C dyeth and B dyeth without issue and D hath issue a daughter in this case and by this Devise the heires of A shall not take but the next of blood to the children of A which is the daughter of D and his children themselves are excluded and if the sonnes have any issues living they shall take with her by this Devise If the Testator have issue by A his first wife three daughters â—â—â—â—dged Mâ—
devise none of his land in the other Hamlet doth passe If a man make his Will the first day of May and thereby give the Plow 34â— Mannor of Dale to one in Fee and the tenth of May one of the Tenancies escheat and the 20. of May the Devisor dyeth in this case and by this devise it seems the Devisee shall have the Tenancie that doth escheat If one devise his land thus I give my land in Dale to I S and 3. In respect of the estate and time that is devised Fee-simple his heires or to I S in Fee or to I S in Fee-simple or to I S for Litt. Broo. Sect. â—â—3 Perk. Sect. 1. 6. Litt. Sect. 586. â—elw 4â— Coo. super Litt. 19. 20 H. 6. 35. Litt. B100 Sect. 432. 19. H 8. 10. ever or to I S Habendum sibi suis or to I S and his Assignes for ever or thus I give my land to I S to give sell or do therewith at his pleasure by all these and such like devises a Fee-simple estate is made of the thing devised and I S shall have the same to him and his heirs for ever But if land be granted by Deed after this manner I S by this grant in all these cases except onely in the Deed. first case hath onely an estate for life * Fitz Devise 111. And if a man devise his land to I S and say not how long nor for what time by this devise I S hath an estate for life only in the land If a man devise his land to I S and his Assignes without saying Coo. super Litt. 9. Perk. Sect. 57. 239 New Terms of the law tit Devise for ever it is said by some that by this devise I S hath onely an estate for life * Tâ—â—n 2. C. B. R. reply Daniels case Coo. 6. 16. Dyer 126. But the contrary is affirmed elsewhere and that it is a Fee-simple If one devise his land to his wife to dispose thereof at her will and pleasure and to give it to one of her sonnes in this case and by this devise she hath a Fee-simple but it is qualified for she must convey it to one of her children and cannot convey it to another If one devise his land to I S paying 10. l. and use no other words by this devise the Devisee hath the Fee-simple of the land albeit the 10. l. be not the hundredth part of the worth of the land * Adiudge Hill 36. Eliz Co. B. And yet if one devise his land to I S for his life paying 10. l. by this devise I S shall have an estate for life only If one devise land of the value of 50. l. per annum to J S for life the remainder to I D paying 40. l. to W. by this devise J D shall have the Fee simple of the remainder upon condition If one have two sonnes and he devise his land first to his wife and Hill 17. Iac. B. R. adiudged Spiceâ—s case then he saith thus In like manner I will that my sonne A. shall have it after my wives death and if my wife dye before my sonne B then that my sonne A shall pay to B 3. l. by the year during the life of B and also 20. l. to W S. by this devise A shall have the Fee-simple of this land â—f one devise his land thus I will my land to my sonne W for his life and after his death to my sonne T and if my sonne W purchase Câ—â—ia M 18. â—ac B. R. Green ver 〈◊〉 â—us Dewell land as good as that land for my sonne T then that my sonne W shall sell the land devised to my sonne T as his own and I will that my sonne W shall pay to his Sisters â—0 l. by 20. s. a year in this case and by this devise W hath a Fee-simple for power to sell giveth by implication an estate in Fee-simple and it is paying also c. If one devise land to his wife and her heires and if the heire put her out that she shall have other land by this devise she hath the Fee-simple Pasch 14. Iac. B. R. Curia of the first land and is not abridged by the latter words If one devise his land thus I give White Acre to my eldest sonne and his heires for his part Item Black Acre to my youngest sonne Trin. 30. Eliz. for his part by this devise the younger sonne shall have the Fee-simple of Black Acre So if I give White Acre to I S Item Black Acre to I S and his heires by this devise I S shall have the Fee-simple of White Acre also If one give land to his wife for life the remainder to his sonne and Perk. Sect. 566. the heires males of his body and for want of such issue the remainder to the next heire male of the Donor and the heires males of his body it seems by this devise that the next heire male of the sonne hath a Fee-simple If one devise his land thus I give my land in Dale to I S and to his or to the heires males or heires females of his body or of his Coo. super Lit. 21. 26. â—ee-taile body begotten or to I S and his issues male or his issues female or to I S and the heires males of his body begotten on M or to I S and E his wife and the heires males or heires females of their two bodies begotten or to I S and his heires if he shall have any heires of his body else that the land shall revert or to I S and his heires if he have any issue of his body or to I S and the right heires males of his body or to I S and his heires provided that if he dye without heires of his body that the land shall revert by all these and such like devises an estate taile is made of the thing devised and I S the Devisee shall have the same accordingly If one devise his land thus I give my land in Dale to I S et somini Coo. super Litt. 9. Broâ— tit taile 21. Coo. super Lit. 20. 6. 1â— suo by this devise I S hath an estate taile But if he say I give my Deed. land in Dale to I S et sanguini suo it is said by this devise I S hath the Fee-simple of the land If one devise his land to I S â—t exitibus vel prolâ—bus de corpore suo by this devise if I S have no children at the time it seems he hath an estate taile but by such a limitation by deed is made onely an estate for life If one devise his land thus I give my land in Dale to I S for life the remainder to I D and E his wife and their children or to I D and E his wife and their men children or to I D and E his wife and their issues by these
devises if the husband and wife have no children at the time of the devise is created an estate taile and if they have any children at the time of the devise then hereby is created an estate for all their lives onely in joyntenancie And if land be devised to A for life the remainder to B and the heires of his body the remainder to I S and his wife and after to their children by this devise I S and his wife have estates for their lives onely and their children after them estates for their lives joyntly And albeit they have no children at the time yet every child they shall have after may take by way of remainder And so also it seems is the law upon such a limitation by Deed Deed. If lands be devised to I S and his heires males or his heires females without saying of his body by this devise I S hath Deed Litt. Sect. 31. 9. H. 6. 25. 27. H. 8. 27. an estate taile But if such a limitation be by deed it is a Fee-simple If one have two sonnes and devise White Acre to his eldest sonne and his heires and Black acre to his youngest sonne and his heires Hill 22. Iac. B. R. Daniels case and if either of them dye without issue then that the other shall be his heire by this devise either of them hath an estate taile and no Fee-simple If one have land in Kent in W S and T and have one male child Adiudge M. 9. Iac. Wallops â—ase and a daughter and his brother hath three children B C and D and he devise his land thus Item I give my land in Kent to my male childe and his heires and if he dye without heires of his body that that the land in W shall go to B and his heires Item I will my land in S to C and his heires and my land in T to D and his heires in this case and by this devise the male child of the Devisor hath an estate taile in all the lands and after his death without heires it shall remaine according to the Will So that if one devise his land to his eldest sonne and his heires and if he dye without heires of his body that it shall remain to his youngest sonne and his heires by this devise the eldest sonne hath an estate taile and the youngest sonne the Fee-simple If one devise his land to his sonne W and if he marry and have any issue male begotten of the body of his wife then that issue to Coo. 9. 127 have it and if he have no issue male then to others in remainder by this devise it seems W hath an estate taile to him and the issues male begotten on the body of his wife If one devise White Acre to I S and the heirs of his body and then after saith thus and I will that I D shall have Black Acre in the same Perk. Sect. 561. 20. H. 6. 36. manner that I S hath White Acre by this devise I D hath an estate tail in Black Acre as I S hath in White Acre Et sic de similibus * Tr. 30. Eli. And if one devise White Acre to I S and then say Item Black Acre to I S and the heires of his body by this devise he hath an estate taile in both Acres If one devise his land to his wife for yeares the remainder to his younger sonne and his heires and if either of his two sonnes dye Dyer 122. without issue c. that it shall remaine to his daughter and her heires and the younger sonne dye in the life time of the Father and after the Father dyeth it seemeth by this devise the elder son shall have the land in taile If one devise his land to his wife for life and after to his sonne Adiudge Tri. 7. Iac. Co. B. Robinsons case and if his sonne dye without issue having no sonne or having no male then that it shall goe to another by this devise the sonne hath an Estate taile to him and the heires males of his body If lands be given to a man and woman unmarried and the heires of their two bodies or to the husband of A and wife of B and the Coo. super Litt. 20. 26. Plow 35. heires of their two bodies by these Devises are made estates in Taile If a man devise White acre to his three brothers and Black acre to C his brother so as he pay 10l to I S and otherwise that it shall remain Dyer 333. to the house provided that the same lands be not sold but go unto the next of name and blood that are males if it may be it seemes that by this devise C hath an estate tail in black acre and that if he die without issue it shall go to the three other brothers and their heires males in taile one after another and that white acre also is so entailed in every of their parts For the words shall remaine to the house shall be construed to the most worthy of the Family and the words that are males shall be construed in the future tense If land be devised to I S and the heires of his body and that if he die that it shall remain to I D by this Devise I S hath an estate Adiudg 14. Eliz. Coo. B. Trin. 9. Iac. B. R. Taile and the latter words do not qualify the former but I D must attend his death without heires of his body before he shall have the land If land be devised to I S and the heirs males of his body and if it Dyer 171. happen that he dye without heire of his body that it shall go to H and his heires by this Devise I S hath an estate to him and the heires males of his body and the subsequent words do not alter nor enlarge the estate If land be devised to I S and E his wife and to the heires of Coo. super Litt. 26. the body of the Survivor of them by this Devise the Survivor shall have a generall estate Taile If land be devised to I S and the heires he shall have by A his wife by this Devise I S hath a Fee Taile and not a Fee simple as Coo. super Litt. 26. Deed. he hath in case of such a limitation by deed If land be devised to I S and to the heires of the body of such a woman by this Devise I S hath an estate Taile and begotten Coo. super Litt. 26. shall be intended begotten by him If one devise land to his sonne and his heires and that if his sonne die within the age of 21 yeares or without issue that the land shall Adiudg M. 37. 38 Eliz. Sale versus Geâ—rard remain over and the son dieth within age having issue in this case and by this Devise the sonne hath an estate Taile and or in this place shall be taken for and If land
bee devised to a man and his wife and to one heire of their body and the heire of the body of that heire by this Devise Coo. super Litt. 22. Deed. an estate Taile is made in a Will as well as in a Deed. If a man devise his land thus I give White acre to A my sonne M. 18. Iac. B R. Gilberts case and his heires Black acre to B my sonne and his heires and Green acre to C my sonne and his heires provided that if all my said sons die without issue of their bodies that then all my said lands shall goe to M my wife and her heires by this Devise they have all of them estates in Taile of their land and as it seems crosse remainders to either of them of the land of each other If one devise his land thus I give my land in Dale to I S and if Coâ— 9. 128. he die without issue male of his body then that it shall remain over to I D by this Devise I S hath an estate Taile If a man hath issue three sonnes and devise his land thus viz. one part to two of his sonnes in Taile and another part to his third Litt. Broo. Sect. 4â—â— Broo. Devise 38. Done 44. sonne in Taile and that neither of them shall sell his part but that either of them shall be heire to other in this case and by this Devise either of them hath an estate Taile and if one of them dye without issue his part shall not revert to the eldest but shall remain to the other sonne for it is an implied remainder If there be husband and wife and they have issue a sonne and a Coo. super Litt. 26. daughter and the husband die and land is devised to the wife and the heires of her late husband on her body begotten in this case and by this Devise the wife hath only an estate for life the sonne an estate in Taile and so also the daughter in case he die without issue If one devise to I S that if he and his heires of his body be not For life Coo. supâ—r Litt. 147. 8. 85. paid 20l. rent yearely he and they shall distraine c. by this Devise I S hath an estate taile of this rent But if the Devise be that if I S be not paid 20l. yearly he shall distrain c. by this Devise I S hath only an estate for life So if one devise a rent of 10 l. out of his land to be paid quarterly and say not how long the rent shall continue this is but an estate for life If one devise his land thus I give my land in Dale to I S for his life or to I S without any more words or to I S and his Fitz. Devise 16. Coo. 6. 16. Perk. Sect. 577. heire in the singular number or I S and his children and I S hath children at the time of the Devise or to I S and his successors I S being a naturall person by all these and such like Devises I S hath only an estate for life in the thing devised * Mich. 13. Ia. B. R. Dyer sect 307. But if the Testator have only a Terme of yeares in the land whereof the Devise is made and devise this land to I S and doth not say for what time it seemes that by this Devise the whole Terme is devised unlesse the intent doth appeare to be otherwise And if one devise land whereof a man is seised in Fee to I S paying 10l to I D by this Devise albeit there be no estate expressed yet I S hath the Fee-simple of the land in respect of the paiment of See before Litt. Broo. Sect. 406. 125. the money But if the intent of the Testator appeare to be that I S shall have the land but for his life contra for there the consideraration will not alter the estate expressed upon the gift If land be devised thus I give my land in Dale to I S and his Deed assignes without more words by this Devise is held to be given Coo. super Litt. 9. 4. 29. no more but an estate for life by construction upon a Will as it is upon a Deed. And yet in the New Termes of the Law tit Devise the contraray is affirmed Ideo quâ—re If one devise thus I will that I S shall have and occupy my land Pasche 9. Iac Newmans case in Dale and say not how long by this Devise I S shall have the land for his life * Dyer 342. But if I devise that I S shall enter into my land and say no more by this Devise I S hath no estate at all but power to enter into the land only If a man have a sonne and a daughter and dieth and lands are Coo. super Litt. 2â— devised to the daughter and the heires females of the body of the Father by this Devise the daughter hath only an estate for her life for there is no such person for she is not heire If one devise his land thus I give my land in Dale to I S for Coo. 1. 6â— his life and after to the next right heire of I S in the singular number and to his right heires for ever by this devise I S hath only an estate for life So if one devise land to I S for life and after to the next heire male of I S and to the heires males of the body of such next heire male by this devise I S hath an estate for life only but if it be thus I give my land in Dale to I S for his life and after to the heires or to the right heires of I S by these devises I S hath the Fee-simple of the land And if it be to I S for life and after to the heires males of I S by this I S hath an estate Taile If one devise land to I S and E his wife and after their decease or the remainder to their children by this devise whether they Coo. 6. 16â— have or have not children at the time I S and E his wife have estates for their lives only If one devise a Moity of his land to his wife for life and the other Curiaâ— Ia. Co. B. Moity to his second sonne and after by another clause doth devise it all to his sonne after the death of his wife by this Devise the sonne hath only an estate for life after the wives death and no more If one devise his land to I S in Fee after the death of I B being Broo. Devise 48. 52. Litt. Broo. 107. 13 H. 7. 13. New termes of the Law tit Devise Plow 158. 414. 521. By Implication his sonne and heire apparant by this Devise I B hath an estate for ife by implication and untill the Devise take effect the law gives it to him by discent And so also it seemes the law is where
is Iudge of that Peculiar or if the goods be within two Peculiars then before the Ordinary of the Diocesse wherein these two Peculiars lye But if there Sâ—inb part 6. Sect. 11. be bona notabilia in the case viz That the Testator have goods or chattels at the time of his death of the value of 5l or more lying in two or more â—ounties or have good debts upon Especialties as some say for otherwise they follow the person or have any Especialties as other â—ay lying in other Counties for debt so that there be of goods and chattels or good debts to the value of 5l in any other Diocesse then that wherein the Testator led his life and dyed then the Probate doth belong to the Archbishop of that Diocesse wherein it is unlesse the Ordinary of the same Diocesse have the Probate by composition between him and the Metropolitan for otherwise there must be severall Probates for the goods in every Diocesse as anciently was used in these cases But if a man die in his journey in another Diocesse and have more then 5 l. goods about him this shall not be said to be bona notabila but the Will may be proved before the Ordinary of the place where the deceased lived and his estate doth he And except Stat. 23 H. 8. cap. 9. it be in cases where men have bona notabilia the Officers of the Courts of the Metropolitans are not to cite men out of their own Diocesse and to discover this matter it is the duty of the Ordinary of the Diocesse when any man comes to prove a Will to give him an Oath and examine him whether he know of or doe believe there are any goods to the value of 5 l. lying in any other Diocesse at the time of the Testators death and if he hear of any to dismisse them to the Prerogative Court and to give them notice of it Also in some places the Lords of Mannors have the Probate of all the Wills within their Mannor by custome of the place Fitz. Testament 4. 5. and in those places it must be proved there and not elsewhere And when an Executor is bound to prove the Will before the Ordinary as before the Ordinary may give him what time to doe it hee doth think fit and when he doth prove it the Ordinary doth take an Oath of him to administer the goods faithfully and to take bond of him also if he please but this some doe omit And now because lands are oftentimes conveyed by the severall kinds of assurance aforesaid unto one man but to the use of another and to the intent that another shall take the profits of it we must of necessity hear somewhat of the learning of Uses and then wee shall have done CHAP. XXIIII Of a Vse A Use is the profit or benefit of Lands or Tenements or as 1. Vse Quid. Coo. 1. 125. 122. See the Addition to Iust Dodr. Treatise Coo. super Litt. 271. 272. others define it The equity and honesty to hold the land in conscientia boni viri Or as others define it more fully It is a trust or confidence reposed in some other which is not issuing out of the land but as a thing colatterall annexed in privity to the estate of the land and to the person touching the land so that he for whom he is trusted shall take the profit of the land and the Terre-Tenant shall dispose of it according to his direction As for an example If a Feoffment be made to I S and his heires to the use profit or behoofe of W S and his heires in this case heretofore I S had the estate and property of the land but W S had and was to have the profits in honesty and equity So if one agree with W S for a piece of land for 20 l. and pay him the money but hath no assurance of the land yet the equity and honesty to have this land is in him that hath contracted and paid his money for it and this trust was called the use of the land and hence came the course in conveyances to set down in the Habendum to whose use as Habendum to A and his heires to the use of A and his heires And he for whom this trust is and that ought to have the profit of the land by conveyance as aforesaid is called cestuy que use There is a use also of goods and chattels which is properly called a Trust or confidence Cestuy que use Trust or confidence Quid. for one may have such things to the use of another A Use is either expresse i. e. when the use or intent is openly declared and expressed between the parties upon the making of the 2. Quotupleâ— Doct. St. 95 Perk. Sect. 533. Coo. 2. 58. 9. 11. Dyer â—8 146. estate of land whereunto the use is annexed as when a Feoffment is made of land to I S and his heires to the use of W S and the heirs of or heires males of the body of the said W S or to the end and intent that W S and his heires or W S and the heires of his body shall take the profits of it or the like or when I covenant to stand seased of the land to the use of my wife for life and after of my eldest sonne and the heires of his body or the like Or it is implyed i. e. when the use is not declared upon the agreement between the parties but is left to the construction and made by the operation of Law as when a man seised of land makes a Feoffment in Fee or doth levie a fine or suffer a common Recovery of it to another without any consideration and it is not agreed nor declared to what use or intent it shall be this by construction of Law shall be to the use of the Feoffer Conusor or Recoveree But if there be any consideration of money or other thing paid or given or any rent or Tenure reserved then by construction of Law it shall be to the use of the Feoffee Conusee or Recoveror for otherwise the Law presumeth that the intent of him that did part with the land was so viz. that the other should have the property of the land to his use and that he himselfe should take the profits of it So when one doth bargaine and sell his land for money to another and no use is expressed in this case the Law doth say it shall be to the use of the Bargainee and his heires A use also is either in esse and that in Coo. 1. 121. possession reversion or remainder as when a Feoffment is made to I S to the use of I W and his heirs or to the use of I W and after to the use of I D and the heires males of his body and after to the use of S T and his heires for ever Or it is in posse or in contingency as when by possibillity
the same uses and shal binde the parties no naked Averment shal be received of any latter or other agreement contrary to the Indentures 6. The declaration of the uses must be certaine and that especially in three things in the persons to whom in the lands c of which and in the estates by which the uses are declared and if there want certainty in either of these the declaration is not good and it must be compleat of it self without any reference to Indentures or other writings to be made afterward for then it is but an imperfect communication and no compleat declaration 7. Where an Indenture precedent is to limit the uses of a subsequent Fine or Recovery and it is not pursued in some circumstance of time person quantity or the like yet if no other new meanâ— agreement may be proved the Assurance shall be in judgement of Law to the uses contained in the same Indenture but if the variance be in these particulars the form of the Indenture be not pursued there an Averment without writing may be taken that the fine or other Assurance was to other uses then are contained in the Indenture if none such can be made then it is left to construction of Law And therefore if A be seised of divers Mannors in Fee and by his Indenture dated 10 Martii 21 Eliz. doth covenant with B C that he before the end of Trinity Term next Will by Fine or other Conveyance assure one of these Mannors to them that the same Assurance shall be to the use of A and E his wife of the heirs of A and the 28th day the Deed is inrolled and the 29th day of the same moneth he doth by another Indenture Covenant with the same C and D to convey all the same Mannors to the same C and D before the Annuntiation next that the same Assurance shall be to the use of A and the heirs males of his body for default of such issue to the use of divers others in remainder by this Indenture doth covenant that if he shall not sufficiently convey this land by the day that he wil stand seised to the same uses c and no Fine is levied by the end of Trinity Terme but the 17th of September following a note oâ— a Fine is acknowledged to B and C and the heirs of B of the land within the first Indenture and the 18th of the same moneth another note of a Fine is acknowledged to C and D of the same and other land in the last Indenture and both these Fines are entred in Octabis Miâ—h following in this case these Fines cannot bee directed and declared by both Indentures and therefore it seemes the declarations are void As touching Averment of Uses i. e. the proofe of uses by witnesses 6. Averment oâ— Vâ—es and â—â—ere a use â—â— and may be Coo. â— â— 5. 2â— 25. Doct. St. 95. Coo. 2. 57. these things are to be known that where any use is expressed upon a Charter of Feoffment no other use contra or preter the use which is expressed shall be admitted But in cases of Fines and Recoveries averred upon any assurance And what shal be said a sufficient averment or not wherein no uses are expressed other uses then what Law construction will make may be shewed and proved to be agreed upon and the same assurances shall be to such uses as by proof shall be made to appear to be the intent of the parties As if a man and his wife sell her land for money and after levy a Fine to the vendee and his heirs in this case it may be averred it was for money and this shall carry the use to the Vendee without any declaration of use which otherwise would result to the woman and her heirs and yet if a Fine be with a Grant and Render no averment to prove it to be to other uses then what are contained in the Fine shall be received And where the uses of a Conveyance be declared by Coo. 9. 8. Indenture before or at the time of the same Conveyance no averment shall be received of any other uses then what are contained in the Indenture But if the Indenture of declaration be subsequent there an averment lieth and shal be received that there were other uses agreed upon at or before the time of the conveyance made And where an agreement is made to levy a Fine or suffer a Recovery Coo. 5. 26. before or at a time certain and that it shall be of such and such lands and to such and such persons and after it falleth out the Fine or Recovery is not had by that time or not of the same land or not between the same persons in these cases an averment may be had of other uses and of another agreement Where the uses of an assurance are certainly agreed upon and 7. To what use an assurance of land shall be by construction of law And how the Limitation of the Vses of land by a Deed shall be construed Doct. St. 25. Perk. Sect. 533. Coo. 1. 24. Dyer 18. Cromp Iur. 62. Coo. â— super Litt. â—7â— declared between the parties thereunto there regularly it shall be to such uses as are declared and agreed upon and to none others But if a conveyance be made of land by Fine Feoffment or recovery and no uses thereof declared and agreed upon the Law will limit and appoint the use according to equity and conscience And therefore if a man levy a Fine make a Feoffment or suffer a recovery of land without any consideration the Law will adjudge the use to be in the Feoffor Conusor and Recoveree who doth part with the land And so if a man make a Feoffment to the intent to perform his last Will or to the use of his last Will or to such persons as he shall limit by his last Will in all these cases the use shall be in the Feoffor and his heires whiles he doth live to dispose at his pleasure And so if one make a Feoffment of land to Bakers case Co. B. Hill 37 Bliz. I S and his heirs to the use of W S for 20 years and limit the use no further in this case the residue of the use after the 20 years shall be to the Feoffor and his heirs But if in these cases there be any consideration of money or the like though never so little given or any rent reserved upon the Feoffment the Law will adjudge the use in the Feoffee Conusee or Recoveror And yet in that case also if other uses be expressed upon the Deed it seems it shall go to the uses expressed as if A for 20l. paid by B enfeoffe B and his heirs to the use of C and his heirs If the husband and wife levy a Fine of the wives land without consideration Coo. 2. 57. 58. and without any declaration of use the Law
will adjudge this to be to the use of the wife and her heirs but if they sell her land for money and after levy a Fine thereof to the Vendee this shall be to the use of the Vendee and his heirs And if a man be seised of land of the part of his Mother and without any consideration make a Feoffment in Fee of it this shall be said to be to his use in the same nature he had it before So if two Jointenants be of land the one in Fee-simple and the other but for life and they without any consideration levy a Fine of it and make no declaration of use the use shall be to them of the same estate as they had before in the land So if â—â— tenant for life of land and B in reversion or remainder levy a Fine of this land generally this shall be to the use of A for life and to the use of B in Fee afterwards as it was before So if A be seised in Fee of an Acre of ground and he and B joyne together and levie a Fine of it to another without any consideration this shall be to the use of A and his heirs only If one make a giâ—t in taile or Lease for life or yeares albeit Perk. Sect. 533. it be without any consideration of Fine or Rent yet the Law will adjudge the use in the Donee or Lessee and not in the Donor or Lessor If one at this day by Deed indented bargain and sell his land Plow 539. Coo. 1 87. â—et see Litt. Broo. 536. Câ—ompt â—â—r â—7 2â— H. â— 6. Co. â— 110. to another for money and doth limit no estate but the Deed is Habendum to him only and not Habendum to him and his heirs or to him and the heires of his body or to him for life howsoever in this case before the Statute of uses was made it was other wise yet now the common received opinion is that by this there doth passe onely an estate for life and not a Fee-simple If a Feoffment be made to I S and his heires to the use of I D without any more words by this limitation I D hath only an Coo. super Litt. 42. Dyer 169. estate for life So if a Feoffment be made to I S and his heires to the use of I D for ever without saying and his heires hereby I D hath only as estate for life And so of other uses the construction shall be according to the rules of Law If a use be limited to I S and his heires untill A shall come from beyond the Sea and attaine his full age or dye in this case Pasche 3◠〈◊〉 B. R. the Lord Mordaâ—â— case if he come from beyond Sea attaine his full age or dye the use shall cease If one covenant to stand seised to the use of A his eldest sonne Hill 17. â—ac B. R. â—â— wayeâ— caâ—e and the heires males of his body and after to the use of B his second sonne in tail in the same manner or according to the limitation to A by this B hath an estate tail to him and the heires males of his body If a Feoffment in Fee be made to the use of a man and his wife Coo. super Litt. 28. for their lives and after to the use of their next issue male to bee begotten in Tail and after to the use of the husband and wife and of the heires of their two bodies begotten they having no issue male then by this the husband and wife are tenants in speciall Tail executed and after they have issue male they are tenants for life the remainder to the sonne in Tail the remainder to them in speciall Tail If one make a Feoffment to the use of himself for life and after his decease to the use of Alice whom he doth intend to marry Dyer 300. untill the issue he shall beget of her shall be of the age of 21 years and after the issue cometh to that age then to the use of the wife during her widdowhood and the husband dye without issue by this the wife shall have an estate at least during her widdowhood If I covenant with B that in consideration he will marry my daughter that from the time of the marriage I will stand seised to Coo. 1. the use of my self for life and after to the use of C a stranger and the heirs males of his body and after to the use of B and my daughter and the heirs of their two bodies in this case albeit the use limited to C the stranger be void yet it seems B and my daughter shall not have the land till the death of C without issue but that my heirs shall have it till that time If I covenant with B to stand seised to the use of my selfe for life and after my death to the use of C a stranger for the term of 20 years Coo. 1. 155. and after the end of the term to the use of my sonne in tail in this case the use limited to C is voyd and my sonne after my death shall have the land But if the words of the covenant be and after the end of 20 yeares insteed of and after the end of the term my sonne shall not have the land untill the 20 yeares be expired See more in exposition of Deeds Chap. 5. All such uses as are not within nor executed by the Statute of 8. Where and how Vâ—es of Land â—ay be extinguished and destroyed or suspended or noâ— And where the ancient Vses shal be revived by the entry of the Feoffees or not 27 H. 8. but remain at the Common-Law may be destroyed discontinued Co. 1. Chudleighs caâ—e or suspended as uses before the Statute might have been And therefore contingent uses may be extinguished or suspended at this day As it a man seised of land in Fee have three sonnes A B and C and he make a Feoffment of his land to divers Feoffees to the use of them and their heires during the life of A and after to the use of the first sonne that A shall beget and the heirs males of the body of such first sonne or if a Feoffment be made to the use of a man and the wife that he shall marry or the like if in these cases the Feoffees make a Feoffment over before the contingent uses happen to be in esse as before A have any sonne or the man take a wife c. albeit it be to one that have notice of these uses yet the uses are destroyed for ever and the Feoffees cannot enter and revive them contrary to their own Feoffment And if in these cases the Feoffees before the contingent remainder vest be disseised hereby the uses are suspended but then by the Reentry of the Feoffees the ancient uses will be revived again And therefore if the Feoffees release to the Disseisor and so barr themselves of their entry the uses
are extinguished and shall not be revived and the party grieved hath no remedy but in Chancery against the Feoffees for breach of trust And if the Feoffees in the first case before dye before A have any sonne born the contingent remainder is gone As where a Feoffment is made to the use of the Feoffor for life and after to the use of the right heirs of I S in Fee and the Feoffor dye before I S in this case the remainder is gone for a remainder cannot be without a particular estate no more of a use then of an estate made in possession and such a remainder must vest during the particular estate or at least eo instanti when the particular estate doth end If a Feoffment be made to the use of I S and the wife he shall Coo. 1. 136 afterwards marry and of the heirs males of their bodies and I S make a Feoffment of this land to another before he take a wife hereby the contingent remainder is destroyed If A enfeoffe B and his heirs to the use of C and D his wife and Hill 2. Caâ— Scaccar Adiudged the heirs of the survivor of them and C makes a Feoffment to E and dyeth this Feoffment doth destroy the contingent remainder When the estate out of which the uses do arise is gone the uses Dyer 186. are gone also As if a Lease be made to A for his life to the use of B for his life and A dye hereby the estate of B is gone Also uses of lands may be gone by Revocation whereof See in the next part Provisoes and Powers of revocation of uses of lands are very Coo. super Litt. 237. 7. 11. 12. 10. 143. 1. 110. 173. 107. Dyer 372. 9. Where a power to revoke Vses of Land shall be good And how they shal be taken And what Revocation by real â—n of such power shall be â—o â—d And what not frequent in voluntary conveyances whether by Feoffment or otherwise that passe land by way of raising of uses and are executed by the Statute of 27 H. 8. and the Jnheritances of many depend thereupon As if a man seised of land in Fee have divers sonnes and he covenant to stand seised of that land to the use of himselfe for liâ—e and after of his eldest sonne in Tail and for want of such issue to the use of his second sonne in Tail c. with a Proviso that it shall be lawfull for him at any time during his life to revoke any of the said uses and to limit and appoint other uses c. Or if A by â—ndenture between him and B his heire apparant an Infant covenant with B for the advancement of his blood c to stand seised to the use of himselfe for life and after to the use of his said heir apparant and the heirs males of his body and after to the use of his right heires provided that if A by himselfe or any other during his life shall deliver or offer to B a Ring of gold to the intent to make void all the said uses that then the same uses shall be voyd and he may limit new uses Or if A by Indenture covenant with B to stand seised to the use of himself and his wife and his daughter for their lives and after c. provided that if the said A during his life and after the debts mentioned in the Schedule annexed to the Indenture shall be paid shall be disposed to determine disannull change alter enlarge diminâ—sh or make void the uses or estates or any of them of the Premisse or any part thereof and by writing indented under his Hand and Seale subscribed in the presence of three Witnesses shall declare his mind to be so that then the same uses shall be void all these and such like Provisoes being coupled with a use are allowed to be good and not repugnant to the former estates But in case of such a Feoffment or other Conveyance whereby the Feoffee or Grantee is in by the Common-Law as where A doth enfeoffe B and his heirs to the use of B and his heirs it is said such a Proviso is meerly repugnant and voyd And as touching these Provisoes or Revocations these things are to be known 1. These Revocations are favourably interpreted because many mens Inheritances depend upon it And therefore he that hath this power may revoke part of the uses at one time and part at another time and the revocation of the old may be made by the making of new uses without any expresse revocation And by the same conveyance whereby the old uses be revoked the new uâ—es may be created and limited and then the â—onner uses do ceaâ—e iâ—so facio by this revocation without any entry or claim As if one covenant to stand seised to the use of himself and his wiâ— for their â—ives and after to the use of A his daughter for the and after to the use of B his daughter in Tail c. pâ—ovided that if he shall be minded c. he may by writing c. make voyd the same uâ—es and declare the uses to others and he doth make voyd the use to â—s wise at one time and no more and after by a Dâ—ea doth limit and appoint new uses of the whole by a new covâ—nant to stand eisâ—d to other uâ—es these are good revâ—câ—tions for there needs no reall and expresâ—e revocation of former uses but the creating of new uses as in Law an actuall revocation of the old uses as the making of a latter â—s tâ—so â—ucto a revocation of a former Will 2. The Proviâ—o must for the substance of it be pursued in the revocation and all incident circumstances thereof must be observed as sealing subscription oâ— names witnesses and the like otherwise the revocation will not be good And therefore if the Proviso be that if the Covenantor shall be minded to revoke and shallâ—d clare his mind by writing indented under his Hand and Seale delivered before three Witnesses the uses shall be void in this case a revocation by word without writing or by a writing and not indented or by writing indented and not under Hand and Seale or under Hand and Seale and before two Witnesses only is not good And yet if a Proviso be that Trin. 18. Ia. Co. B. Tib. â— beâ— Leas case if the Covenantor shall at any time during his life by writing under his Hand and Seale delivered before two witnesses revoke the same c. the old uses shall be void and the Covenantor by his last Will and Testament in writing under his hand and Seale before two Witnesses doth give the land to another and make no expresse revocation of the former uses this is a good revocation in Law If the Proviso be that if the Covenantor be minded at Coo. 8. 92â— any time during his life to revoke the same uses c. and shall pay or tender to A B
right of the wife is saved so as she makes her claime c. within five years after her husbands death d Dier 354 So if husband and wife tenants in speciall taile have issue and the wife die and the husband marry another wife and have issue and levy a fine Sur cognisance de droit come ceo c. and take backe by the same fine an estate in speciall taile the remainder over c. and die the issue by the first wife is barred e Co. 3. 90. So if tenant in taile be disseised or make a feoffment in fee and after levie a fine with proclamations to the disseisor or to a stranger the issues in taile are hereby barred for ever the continuance of the possession in a nother notwithstanding f Co. super Lit. 372. So if a gift be made to the eldest sonne and the heires of his body the remainder to the father the heires of his body and the father dyeth and the eldest sonne levy a fine with proclamations and dyeth without issue this shall barre the second sonne for ever for the remainder descended to the eldest g Cûria trin 21 Jac. Co. E So if lands be given to an eldest sonne and the heires of the body of his father the father being then dead and he levy a fine of this land this will barre the younger brother h Dier 3. But if the issue in taile doe not make his title by him that did levy the fine there the fine will not barre and therefore if my father be tenant in taile and his brother disseise him and levy a fine and he and my father dye this fine shall not barre me as issue in taile because I doe not make my title to the land by him but if I suffer five years to passe and doe not make my claime c. by this meanes I may be barred by the fine i Plow 435. And if the fine be levied of another thing then the thing it selfe entailed As if the tenant in taile grant by fine a Rent Common or the like out of the land intailed this fine will not barre the issue So if a Rent be entailed and the tenant in taile of the Rent disseise the terre-tenant of the land out of which the rent doth issue and then levy a fine of the land this is no barre to the issue of the Rent 2. Albeit the fine be a double fine 2 Co. 76. 3. 85. super Lit. 353. Bio fines 118. Dier 279. with a grant and render yet it is within these Statutes and will barre the issue in taile as well as a single fine so as the grant and render be of the land it selfe and not of any profit apprender out of it And therefore if husband and wife be tenants in speciall taile and they levy a fine with proclamations and the Conusee grant and render the land to them and their heires this fine will barre the issue in taile And if tenant in taile joyne with I. S. and levy a fine to a stranger and the stranger doth grant and render the land againe to I. S. for years and to the tenant in taile in fee afterwards the issue in taile is barred by this fine So if there be tenant for life the Remainder in taile and he in remainder in taile accept of a fine from a stranger and grant and render to the stranger againe for years with a remainder over hereby the issue in taile is bound k Plow 435. If tenant in taile accept of a fine of the land entailed from a stranger and then grant and render a Rent out of the land to the stranger by the same fine this will not bind the issue in taile to pay the same Rent l Dier 117. If tenant in taile make a feoffement on Condition and die having two sisters inheritable to the taile and one of them levy a fine with proclamations sur Release to the feoffee of the whole in this case it is doubted whether the other sister be barred of her halfe or not 3. Albeit the tenant in 3 Co. 3. 86. 87. 1 in Shelleys Case taile die before all the proclamations be finished yet when they be finished as they may be after his death the issue in taile are bound by the fine for howsoever by the death of the tenant in taile the right of the estate taile doth descend to the issue yet when the proclamations are passed this right that doth descend is bound by the Statutes and the issue cannot by any claime c. save the right of the estate taile that doth descend unto him 4. Albeit the 4 Co. 3. 84. 91. issue in taile be within age out of the Realme under Coverture non compos mentis or in prison at the time of the fine levied and the proclamations passed yet the estate taile is barred by the fine And therefore if A. be tenant for life of land the remainder to B. in taile the reversion to B. and his heires expectant and B. levy a fine to C. and his heires and hath issue and die before all the proclamations are passed the issue in taile being then out of the Realme the proclamations are made and after the issue in taile cometh into the Realme and claimeth the remainder in taile upon the land in this case the estate taile is barred for ever 5. These Statutes doe extend to fines levied by tenant in taile by 5 Co. 3. 90. Dier 279. Plow 435. Conclusion and the issue shall be bound by the fine of their Ancestor unto whom they are privy in estate and bloud albeit partes finis nihil habuerunt tempore finis And therefore if the issue in taile in the life of his Ancestor when he hath onely a possibility As if there be grandfather father and sonne and the grandfather be tenant in taile and the father levy a fine of the land before the grandfathers death and then the grandfather dye before the father and after the father dye in this case the issue is barred by this fine †Curia Trin 21. Jac. Com. B. Godfry Wades case Dier 48. so also if the grandfather survive the father But in case of a collaterall descent if the collaterall Ancestor die in the life time of his father without issue this fine is no barre but if he survive his father contra So if lands be given to the grandfather and his wife in speciall taile and the grandfather dieth and the father doth disseise the grandmother and doth levy a fine with proclamations the grandmother dieth and then the father dieth in this case the sonne is barred m Co. 3. 50 51. 9. 140. So if lands be conveyed in taile to a woman for her Jointure within the Statute of 11 H. 7. cap. 20. and whiles shee liveth the issue in taile doth levy a fine of the land by this the issues inheritable to the estate taile are barred for ever
of the land whereof the recovery is to be had for an estate for years or any such like estate will not hinder the suffering of a recovery there the course is to get a Conditionall Surrender from the tenant for life of his estate to him in reversion or remainder to the end that he may be perfect tenant of the Inheritance and then the writ of entry may be brought and the recovery had against him for if a writ of entry be brought against a stranger and he vouch the tenant in taile in possession of the land and so a recovery is had or if there be tenant for life of land the remainder or reversion to another in taile or in fee and a stranger doth bring a writ of entry against him in the remainder or reversion or against a stranger who doth vouch him and so a recovery is had these recoveries are not good And yet if the writ be brought against the tenant of the land and a stranger that hath nothing in the land together and so a recovery be had this recovery is good enough And if a disseisor make a gift in taile of the land to another and the writ is brought against him and he vouch the disseisee and he vouch the common vouchee this is a good recovery 5. That it be in such a case as is not prohibited Stat. 34. H. 8. ca. 20. Co. super Lit. 37â— 2. 5. 16. Co. 8. 77 78. by some Statute law for if the King give any of his owne land Prerogative whereof he is seised or cause or procure another in consideration of money or other land to give the lands whereof he is seised in taile to any of his subjects or servants in recompence of their service or the like the remainder to the King in fee simple or fee taile such estates in taile cannot be barred by a common recovery And therefore if such a tenant in taile shall suffer a recovery of such land it is voyd and it will neither barre the issues in taile nor any of them in remainder nor the King But if the King make such a gift in taile keeping the reversion to himselfe and after doth grant the reversion to another in this case tenant in taile may suffer a recovery and bar the estate taile and the reversion also And where a subject by the Kings provision doth make such a gift in taile and then doth grant the remainder to the King for life or years only in this case the estate taile temainders and reversion also may be barred by a common recovery So in other cases where a subject doth make a gift in taile the remainder to the King in fee this estate taile may be barred by a common recovery And therefore if there be tenant in taile the remainder or reversion in fee to another and he in remainder or reversion by deed indented and inrolled doth bargaine and sell his remainder or reversion in fee to the King or if one covenant to stand seised to divers uses in taile the remainder to the King in fee in these cases the estates and the reversion and remainders depending thereupon may be barred by a recovery So if a man make a gift in taile the remainder in fee and he in the remainder doth grant his remainder to another for life the remainder to the King in fee on condition the estate shall be voyd upon the tender of 20 l. in this case the estate taile and the reversion also and condition thereupon may be barred So if the Duke of Lancaster had made a gift in taile and the reversion had descended to the King this estate taile might have been barred by a recovery So if Prince H. sonne of H. 7. had made a gift in tail the remainder to H. 7. in fee which remainder by the death of H. 7. had descended to H. 8. in this case the tenant in taile might have barred the estate taile by a recovery And yet if the King make a gift in taile the remainder in taile or grant the reversion in taile in these cases a common recovery may not be suffered to barre the entaile remainder or reversion And if the husband for the advancement of his wife in Jointure and the preferment Stat. 〈◊〉 H. 7. cap. 20. Co. 3. 58. 61. 59. of the heires of their two bodies make an estate in taile to him and his wife and the heires of their two bodies and the wife after her husbands death alone by her selfe or with any other husband suffer a common recovery of the land whereof this estate is made this recovery will not barre the estate taile But if in this case the recovery be suffered by the heire in taile or by the heire and his Mother together it is a good recovery And therefore if A be seised of land in fee and he make a feoffement in fee to the intent that the feoffee shall reconvey it to him and his wife and the heires males of his body and this is done accordingly and they have issue a sonne and she surrender or make a forfeiture and he enter and suffer a recovery this is a good recovery and barre to the esate taile or if the writ be brought against the mother and she vouch the heire in taile and so a recovery is had this recovery will barre the estate taile And howsoever at the Common Stat. 14 Eliz. cap. 8. Co. 1. 15. 62. â—0 43. 45. 3. 6. Law a recovery against a tenant for life with a voucher upon a lawfull warranty and a recovery in value was a barre to him in remainder or reversion and there was no remedy in this case yet at this day it is otherwise And therefore if tenant in taile after possibility of issue extinct tenant by the courtesie or any other tenant for life doe suffer their lands to be recovered from them by covin and agreement either as immediate tenants or as vouchees upon feigned titles without the assent and to the prejudice of him in remainder or reversion such recoveries are voyd and will not Forfeiture barre the remainders or reversions but are forfeitures of the estates of such tenants for life Insomuch that if tenant for life be made tenant in fait to the writ or tenant in law upon the voucher and so a recovery be had as if tenant for life make a lease for years and the lessee for years doth make a feoffement in fee and the feoffee doth suffer a common recovery in which the tenant for life is vouched and he vouch the common vouchee these recoveries will not bind the reversions or remainders But there is no provision made at this day to preserve the reversion or remainder expectant upon an estate taile nor to avoyd a recovery of the tenant for life where he in the next remainder is agreeing and assenting to it And therefore if there be tenant for life the remainder to A in taile the remainder to B in
the husband alone doth discontinue the whole land by fine feoffement or bargaine and sale by deed indented and inrolled and the writ of entrie is brought against the discontinuee and he doth vouch the husband alone without the wife and the husband doth vouch the common vouchee and so a recovery is had this is a good recovery for the whole land and a barre to all the estates in tail and remainder and reversion but not to the estate of the wife for her life after the husbands death But if lands be given to the husband and wife and the heires of their two bodies with remainders over to strangers and the husband alone discontinue and the recovery is suffered as in the last case it seemes this is no barre to the estates in taile or remainder or reversion for any part of the land And yet if lands be given to I S and I D in taile and I S discontinue the whole and the writ of entry is brought against the discontinuee and he vouch I S alone this is a good recovery for the one halfe of the land and a barre to all the estates And if lands be given Husband and wife as before to husband and wife and the heires of their two bodies and the writ of entry is brought against them both and they vouch the common vouchee or the husband alone doth discontinue and the writ is brought against the discontinuee and he vouch the husband and wife both and they enter into the warranty and vouch the common vouchee and so the recoverie is had these are good recoveries for the whole and a barre to all the estates in taile and to the estate of the woman and to all other estates And where Lit. Bro. 37. lands are given to a man and his wife and the heires of the body of the wife or to the wife and the heires of her body and the writ of entry is brought against the husband and wife and they vouch the common vouchee these are good recoveries and will barre the husbands and wives and the estates in taile remainder and reversion And where a man hath land in which his wife hath a Jointure Plow 514. or to which shee will have title of dower after his death if the writ of entry in this case be brought against them both they vouch the common vouchee and so a recovery is had this recovery will barre them both But the husband alone without her cannot barre her of any such estate by a recovery for she may falsifie and avoid it after his death And if lands be given to husband and wife and the Co. 3. 5. 1. 12 Ed. 4. 14. heires of the body of the husband and the writ of entry is brought against the husband alone and he vouch the common vouchee and so a recovery is had with a single voucher this is no good recovery for any part of the land nor barre to any of the estates albeit the husband doe survive the wife And yet if lands be given to two Co. 3. 6. others and the heires of the body of one of them the remainder over to to a stranger and the writ of entry is brought against one of them and he vouch the common vouchee and so a recovery is had this is a good recovery and a barre to all the estates for the one halfe of the land If lands be given to A in taile the remainder to B in taile the remainder to C in taile the remainder to D in fee and A doth make a feoffement in fee and the writ of entry is brought against the feoffee and he doth vouch B being him in the second remainder in taile to warranty and he doth vouch the common vouchee this is a good recovery and a barre to the second estate taile and all the remainders and reversion depending thereupon And yet it is no barre of the first estate taile which A Curâ—a Mich. 18 Jac. B. R. So was it held by most of the Judges in the case betweene Pell Browne hath If the writ of entry be brought against a Mortgagee and he doth vouch the common vouchee and so a recovery is had this is no good recovery to barre or bind the Mortgagor but that he may enter upon the condition broken So if one give lands to B and his heires so long as C shall have heires of his body and B doth suffer a common recovery and vouch the common vouchee this is no good recovery to barre the donor of the possibility for in both these cases he that is to be barred hath no remainder or reversion but an interest or possibility which cannot receive a recompence in value But if in these cases the mortgagee vouch to warranty the mortgagor or B the donee vouch the donor and so they vouch over the common vouchee and so the recovery is had these will be good recoveries to barre both them and their heirs for ever And if one have an estate in fee simple determinable on a Limitation or a Condition as if lands be given to A and his heires untill B pay to him 100 l. and then that it shall remaine to B and his heires and A in this case doth suffer a common recovery and vouch the common vouchee it seemes this is no barre to B and his heires but that upon payment of the 100 l. he shall have the land So if one by his will devise his land thus I give unto A my sonne and his heires for ever my land in W paying 20 l. to B when A shall come to 21 years of age and then that A and his heirs shall have it for ever and if A shall dye without heires of his body C being then living that then C shall have it to him and his heires for ever and A pay the 20 l. to B at his full age and then suffer a recovery of the land this is no barre to C of his estate But here it muâ—t be Co. 3. 5. noted that in the cases before where it is said that a recovery is void it is meant as to the heires and them in reversion and remainder for as to the parties themselves that doe suffer the recovery the same is for the most part good and doth bind them by way of Estoppell and conclusion And it must be noted also that a stranger that hath right to the land at the time of the recovery suffered is not barred at all by the recovery or by his lachess of non-claime c. as in the case of a fine The recoverors in common recoveries their heirs and assignes Stat. 7 H. 8. cap. 4. Dier 31. Co. super Lit. 104. 6. The remedy of Recoverors against the Lessees for Rents and services and upon wast done shall have the like remedy against lessees for lives and years of the land recovered their Executors or Assignes by distresse avowry or action of debt for the rents and
how long this shall be taken to be an exception during the estate The Habendum as all other parts of a deed for the most part shall be taken most strongly against the grantor and most in advantage of the grantee yet so as withall it shall be construed as neer the intent of the parties as may be as in al the cases following doth appear In the Habendum or limitation of the estate and how that shall be taken If land be given or granted to one habendum or to have and to hold to him and his heirs so long as he pay 20 yearly to I S and Plow 557. his heires or so long as such a tree doth stand or the like this is a kind of seesimple but it is limited and qualified and determinable upon this contingent And yet this may become a pure feesimple Feesimple for if land be granted to one and his heirs untill I S pay 100l and I S die before he pay it in this case the estate is become a pure fee-simple If lands be given or granted to a man to have and to hold to him and his heires this is a feesimple pure absolute and perpetuall Co. super Lit. 8 9. Lit. 1. 27 H. 8. 5. Perk. Sect. 239. 240 241. 39 H. 6. 38. Plow 28. Bro. Estates 4. 11 H. 7. 12. Co. super Lit. 15. and this is made by these words his heires for it is a generall rule that these words his heires only make an estate in fee-simple in all feoffments and grants But this rule hath many exceptions for if feoffment of land be made to I S heredibus without the word Suis this is a feesimple And yet if the grant be to I S and I D heredibus without this word Suis contrà for this is only an estate for their lives And if lands be given to a Bishop Parson or the like To have and to hold to him and his successors this is a feesimple And lands be given to a Maior and Communalty or other Corporation aggregate generally without the word Successors or any other word or if lands be given to such a Corporation for their lives this is a feesimple But if land be given to a Parson or the like To have and to hold to him without saying how long or to have and to hold to him for life by this he hath no more but an estate for life a Co. 6. 27. super Lit. 9. And if lands be given to the King generally without any other words this is a feesimple b 15 Ed. 4. 13. 9 H. 7. 11 12 H. 8 9. H. 4. 84. 33 H. 6. 20. Co. super Lit. 9. Ass Pl. 12. Plow 130. 14 H. 4. 13. So if one grant deo ecclesiae de D it is said this is a feesimple in the Parson of D. So also of a grant Ecclesiae de D. per Thirne Iust So if a grant had beene to the Monkes of such a house it had beene a fee-simple in the house And in like manner it is in other cases c As if one recite that B hath enfeoffed him of white acre To have and to hold to him and his heires and then he saith further that as fully as B hath given white acre to him and his heirs he doth grant the same to C by this C the grantee hath the feesimple of this acre And if one grant 2. acres to A and B To have and to hold the one to A his heires the other to B in forma predicta by this B hath a feesimple in this other acre for an estate in fee simple fee taile or for life may be made by such words of reference Also if a rent be granted betweene Parceners for to make an equalitie of partition and it bee granted generally and without any words of heires yet this is a feesimple So where lands are given in Frankalmoigne And so also it is in the cases of a release of right a fine and a recovery If one give or grant land to another To have and to hold to him 27 H. 8. 27. Lit. Sect. 31. Co. 11. 46. and his heires males or to him and his heires females in both these cases there is a feesimple made but otherwise it is when these words are in a Will for then it is but an estate in taile only If one grant land to one To have and to hold to him his right 33 H. 6. 5. heires by this he hath a feesimple And so it shall be taken if it be by fine So if one grant land to I S for life the remainder to Co. super Lit. 22. Co. 1. 95. 66. the heires or to the right heires of I S this is a feesimple so if one make a feoffment in fee to the use of himselfe for life and after his death to the use of his heires this is a feesimple If one grant land to I S. To have and to hold to him and the heires of I S this is a feesimple and all one with a grant to I S and his heires If one grant land to another to have and to hold to him for 20. 20 H. 6. 35. Co. super Lit. 217. yeares and that after the 20. years the grantee shall have it to him and his heires by 10l rent and give livery of seisin by this the grantee shall have the feesimple If one grant land to the Wife of I S to have and to hold to her Co. 2. 91. Dyer 156. Co. super Lit. 22. for life and after to I S in taile and after to the right heires of I S by this I S hath a feesimple And if one grant land to A for life the remainder to B for life the remainder to the right heirs of A by this A hath a feesimple If land be granted to a man and his wife to have and to hold Bro. Estates 86. to them and the heires issuing of them it seemes this is a feesimple and not a feetaile If land bee granted to one and his heires by the premisses of a Co. 2. 21. 24. super Lit. 21. 21 H. 6 7. deed to have and to hold to him for life by this he hath a feesimple So if by the premisses of a deed land bee granted to one and the heires of his body to have and to hold to him and his heires by this he hath an estate taile and a fee simple expectant And so via versa If by the premisses of the deed the grant be to him and his heires to have and to hold to him and the heires of his body by this also he hath an estate taile and a feesimple expectant If lands be given or granted to a man to have and to hold to him Termes of Law tit tail Lit. tit Fee toto in Co. super Lit. 26. â—ee taile and to the or his heires of his body or the or his heires males of his body or the or his heires females of his body by this the grantee hath an estate taile So if ands be given to a man to have and to hold to him and the heires males or
Co. super Litt. 223. to be contrary and that a condition to restrain the making of such leases is good for this power is not incident Dier 48. Co. 6. 43. to the estate but given to him collaterally by the Statute and Quilibet potest renunciare juri pro seintroducto But tota curia in Mary Portingtons case is against him If a man make a gift in tail to A the remainder to him and his heirs on condition that he shall not Co. super Litt. idem Dier 227. alien this condition as to the estate tail is good and void as to the other And therefore if an alienation be he shall defeat it onely as to the estate tail And if a man make a gift in tail on condition that Co. 6. 43. the donee or his heirs shall not alien this is a good condition to some intents and void to other and therefore if he make a feoffment in fee or any other estate by which the reversion is discontinued tortiously the donor shall enter otherwise if he suffer a common recovery And a gift in tail on condition that the tenant in tail shall not make a lease for his own life is not a good condition by Co. 6. 43. against Co. super Litt. 223. If one seised in fee of land and Co. 6. 43. 4. 84. super Litt. 223. make a lease of it for years or life on condition that the lessee shall not alien the land leased or any part thereof during the term or on condition that he shall not alien it or any part of it during the term without licence of the lessor these are good conditions So if one be seised in fee of a Manor and he make a lease of years of it to I S on condition that he shall not make voluntary estates by copy this is a good condition But in a feoffment in fee such a condition is repugnant and void And if one be possessed of a lease for years or of a house or of any other chattel reall or personall and he give or sell all his interest therein upon condition that the donee or vendee shall not alien the same this condition is void for repugnancy and the gift or sale is absolute If one make a feoffment of land in fee on condition that the feoffor Co. 2. 72. Dier 318. shall retain the land for twenty years without interruption it seems this is a good condition and not repugnant If I grant land to another for life if it shall please me so long to Dier 94. suffer him it seems this condition is repugnant and void If a feoffment be made of land in fee on condition that the feoffee Co. 10. 39. super Litt. 206. Plow 77. 133. 21 H. 7. 8. 8 H. 7. 10. Perk. Sect. 731. shall not enjoy the land or shall not take the profits of the land or on condition that the heire of the feoffee shall not inherit the land or condition that the feoffee shall not doe wast or condition that his wife shall not be endowed in all these and the like cases the condition is void as repugnant to the estate If a gift in tail be made on condition that the donee or his issues Co. 6. 41. 1. 84. super Litt. 224. shall not take the profits of the land or on condition that if the donee die his estate shall go unto another or on condition that their wives shall not be endowed or on condition that they shall not do wast or on condition that warranty and assets or a collaterall warranty shall not bar the issues in tail all these conditions are repugnant and void If lands be given or granted to two and their heirs on condition Co. 1. 84. that the survivor shal have the whole notwithstanding partition or on condition that the survivor shall not have the whole albeit there be no severance these conditions are repugnant and void If one make a lease for life on condition that the lessee shall not Perk. â—ol 141. doe fealty this condition is not good If lands be given to one and the heirs males of his body provided Co. super Litt. 204. that if he die without heirs females of his body that the donor shall reenter this condition is repugnant and void If one have land in possession or reversion and he grant a rent Co. super Litt. 146. 10 H. 7. 8. Co. 6. 41. 5 H. 7. 7. 7 H. 6. 44. Perk. Sect. 732. out of it on condition that the grant shall not charge the person of the grantor this is a good condition and not repugnant But if a man grant a bare annuity or grant a rent charge out of another mans land with such a condition or if one grant a rent charge on condition that the grantee shall not distrain nor charge the person of the grantor or if one grant a rent out of land on condition that the land shall not be charged with it all these conditions are repugnant and void So if two grant a rent charge out of land provided that it shall not extend to one of them this condition is repugnant and void If a man seised in fee of land make a lease for years rendring rent Perk. Sect. 733. and after the lessee makes a lease to the lessor of other land on condition that he shall not distrain for his rent in the former lease made to this lessee this is a good condition and not repugnant If one make a feoffment in fee or lease for life with warranty on Perk. Sect. 734. Dier 47. condition that the feoffee or lessee shall not vouch to warrant nor recover in value or if the lease be made without impeachment of wast on condition that if the lessee doe wast the lessor shall reenter these are good conditions and not repugnant All conditions annexed to estates being compulsory to compell a Co. super Litt. 223 224. 207. Perk. Sect. 722 723. Conditions against Law man to doe any thing that is in its nature good or indifferent or being restrictive to restrain or forbid the doing of any thing which in its nature is malum in se as to kill a man or the like or malum prohibitum being a thing forbidden by any Statute or the like all such conditions are good and may stand with the estates But if the matter of the condition tend to provoke or further the doing of some unlawful act or to restrain or forbid a man the doing of his duty the condition for the most part is void And therefore if lands be given or granted to a man upon condition that he shal kil a man or upon condition that he shal burn his neighbours house or upon condition that he shall forswear himself or upon condition that he shall save and keep harmlesse the grantor whatsoever he shall doe or that if hee doe not these things the grant shall bee void this condition is void
Or if lands be given or granted to an officer upon condition that he shall not duly execute his office this condition is against law and voidâ— Et sic de similibus So if a gift be made in tail upon condition that the donee shall discontinue or one give or grant Perk. Sect. 727. land on condition that the grantee shall be a forestaller against the Statutes these and such like conditions are void And hereupon it Co. 1. 24. 6. 43. is that conditions annexed to land that the profits thereof shall be employed to superstitious uses are void And hence also it is that Dier 343. Co. super Litt. 206. such conditions as are against the liberty of law as that a man shall not mary or the like are void And hence also such as are against the publique good And therefore it seems if one grant his land to I S Co. 11. 53. 7 Ed. 3. 65. on condition that he being a husbandman shall not sow his errable land this condition is void And in all these cases if the condition Perk. Sect. 722. 725. be subsequent to the estate the condition only is void and the estate good and absolute if the condition be precedent the condition and estate both are void for an estate can neither commence nor encrease upon an unlawfull condition * Co. 6. 41. super Litt. 207. 219. 206. Dier 252. 262. Plow 152. Perk. Sect. 935. 729. Plow 272. 286. Co. 1. 84. super Litt. 207. All conditions annexed to estates that contain in them matter Conditions impossible at the time of making of them impossible to be done are void And therefore if one give or grant land on condition that a man shall go to Rome in three days or condition that a man shal infeoffe a corporation when there is none such or if one give lands in taile on condition that the estate shall cease as if the tenant in tail bee dead or if one grant lands on condition that a man shall infeoffe his wife all these and such like conditions are void And in these cases also if the condition be subsequent the condition is void only and the estate is absolute and if the condition bee precedent the condition and the estate both are void for an estate can neither commence nor increase upon an impossible condition And if the thing to be done by the condition be possible at the time of the making of the condition and doe afterwards by the act of God become impossible the condition is become void and the estate absolute as if a feoffment be made on condition that the feoffee shall before Easter following enfeoffe the feoffor and the feoffee die before the day or on condition that the feoffee shal appear in such a Court before or at Easter and he die before the time in these cases the condition is gone and the estate is absolute And the same Law is for the most part of Limitations if they bee Limitation Co. 6. 41. 1. 84. repugnant impossible or against Law as is before shewed to be of Conditions See more in the next division following It is a generall rule That such conditions annexed to estates as 8. How a condition in deed or a limitation shall be taken expounded And how it must and ought to be performed 1. In respect of persons Co. 8. 90. super Litt. 219. 27 H. 8. 14. goe in defeasance and tend to the destruction of the estate being odious to the Law are taken strictly and shall not bee extended beyond their words unlesse it be in some speciall cases And therefore if a lease be made on condition that if such a thing bee not done the lessor without any words of heirs executors c. shall reenter and avoid it in this case regularly the heir executor c. shall not take advantage of this condition So if one make a lease for years of a house on condition that if the lessor shall be minded to dwell in the house and shall give notice to the lessee that hee shall depart in this case if the lessor die his heire executor c. shall not have the like advantage and power as the lessor himself for the condition shall not be extended to them And hence it is that if a lease for years be made on condition that the lessee shall Not to alien Dier 66. not alien without the licence of the lessor in this case the restraint shall continue only during the lives of the lessor and lessee and no longer And yet this rule hath an exception for if a man mortgage Co. super Litt. 219. his land to W upon condition that if the mortgagor and I S pay 20 s. such a day to the mortgagee that then he shall reenter and the mortgagor die before the day in this case I S may pay the money To pay mony and perform the condition But otherwise it is whiles the mortgagor doth live for in that time I S alone without him may not tender it and if he do this tender is no performance of the condition And in case where a condition doth tend to create an estate Litt. Sect. 352. Co. super Litt. 219 Co. 8. 60. there it shall have the most favourable exposition that may be and therefore in that case albeit the words be not satisfied yet if the intent be satisfied it sufficeth And therefore if one make To make an estate a feoffment in fee on condition that the feoffee shall make an estate back again in tail to the feoffor and his wife before such a day and before that day the feoffor die in this case the condition shall be performed as neer to the intent as may be and therefore if the condition be that he shall make the estate to them two Habendum to them and the heirs of their two bodies engendred the remainder to the right heirs of the feoffor the estate shall be made to the wife for life without impeachment of wast the remainder to the heirs of the body of the husband begotten on the wife And if A enfeoffe B on condition that B shall make an estate in frankmariage to C with such a one the daughter of the feoffor in this case albeit an estate in frankmariage may not be made yet an estate shall be made to them for their lives Et sic de similibus Conditio beneficialis quae statim construit benigne secundum verborum intentionem est interpretanda odiosa autem quae statum destruit stricte secundum verborum proprietatem est accipienda In all cases where a time is set for the doing or performance of Co. super Litt. 209. 208. 219. Co. 2. 79. 6. 31. Litt. 353â— Plow 30. Perk. Sect. 155. 779. 794 787. 793. 789. 788. 38 Ed. 3. 11. Dier 311. 2. In respect of time the matter contained in the condition be it to pay money make an estate or
as the lessors feoffors and disseisees in the cases before have otherwise the confirmation is void And therefore if the heir of the disseisee during the life of the disseisee 29 H. 6. 62. confirm to the disseisor this is no good confirmation to perfect his estate albeit the disseisee die the right of the land descend to his heir afterwards So if lands be given to A B his wife the Co. 9. 138. heirs of their bodies issuing the remainder in fee to A A levy a fine with Proclamations and die and she within five yeares doth enter and claime and after the conusee doth confirme the estate made by the first gift to the wife To have and to hold according to the same this confirmation is to no purpose So if lessee for life make a lease for thirty yeares and after he in reversion and the Co. super Lit. 296. lessee for life lease for sixty yeares in this case he cannot confirme the lease for thirty yeares because he hath granted it before for sixty yeares And hence it is also that the confirmation by one Jointenant Jointenants Fitz Confirmation 15. Lit. Sect. 523. Dier 263. of the estate of his companion worketh nothing for their estates are equall and each hath interest in the whole land And yet if one Jointenant confirme the whole land to his companion To have and to hold the land to him and his heires this shall amount to a Grant and so will be good to passe his moity And hence Lit. Sect. 543. Co. super Lit. 308. it is also that if a man grant a rent charge out of his land to another for life and then confirme his estate without any clause of distresse for by a clause of distresse a grant of a new rent may be made To have and to hold to him in fee simple or fee taile that this is void for the confirmor hath no reversion of the rent in him 4. The precedent estate must continue untill the confirmation come as in all the cases of voidable estates made the confirmation must be before the estates be made void by entry c. or otherwise the confirmation will be void And therefore if lessee for life or yeares surrender or the disseisee enter upon the disseisor and after the lessor or the disseisee confirme the estate of the lessee or disseisor this confirmation comes too late 5. The estate precedent and Co. 5. 15. Lit. Sect. 607. that which is to be confirmed must be lawfull and not prohibited by any act of Parliament And therefore if a spirituall person as Prebend or the like make a lease not warranted by the Statutes the confirmation of the Deane and Chapter will not help nor amend it And if tenant in taile make avoidable lease and after confirâ— it himselfe this is voidable still 6. There must be apt words of confirmation in the deed or Instrument And herein note Lit. Sect. 531. 532. 10 E. 4. 3. Co. super Lit. 295. Dier 116. Co. 1. 147. 5. 15. that albeit the words Confirmavi ratificasse approbasse be the most significant and proper words to make this conveyance yet such as are made by other generall words may make a good confirmation And therefore it is agreed that a deed made by the words Dedi Concessi or Demisi may make a good confirmation And therefore that if the disteisee coparcener or lessor make a deed of the land by the word Dedi or Concessi to the disseisor other coparcener or lessee for life and deliver the deed this is a good confirmation without livery of seisin Also if a feoffment be made to A Livery of seism to the use of B and his heires upon condition and before the condition broken the feoffor and B doe joine in the grant of a rent charge and after the condition is broken in this case the law doth interpret this a good grant from B and a good confirmation of the feoffor without any words of confirmation So if tenant for life doe grant a rent to him in reversion and he by deed doth grant it to another and his heires in fee in this case the law doth construe this a good grant and a confirmation also And in these cases Lit. Sect. 519. Co. super Lit. 296. of confirmations of estates if it be by the disseisee to the disseisor it is good without any words of heires as if the disseisee confirme the estate of the disseisor or confirme the land unto him and say not To him and his heires this is an effectuall confirmation to him and his heires for ever And if a lessee for life or a disseisor make a lease for life or yeares c. and he in the reversion or the disseisee confirme their estates and not the land and without any Habendum or limitation of estate this is good for so long as the estates do continue But it is most safe alwayes to expresse the estate i. to say Co. 1. 147. To have and to hold the land to him and his heires or for life c. as the agreement is If lessee for life grant a rent to one and his heires out of the land and the lessor doth confirme the estate or this rent charge this doth make the estate of the rent sure And so also if he doe confirme the rent and say To have and to hold to him and his heires this is a good confirmation But if he confirm the rent To have and to hold to him in fee without naming his heires hereby his estate is not bettered If the lessor confirme the estate of his lessee for life with this Co. 9. 139. F. N. B. 136. Co. 8. 76. Dier 10. clause To hold without impeachment of wast this is a good confirmation to change the quality of the estate so farre as to make it dispunishable of wast So if the Lord paramount confirm the estate of 2. To enlarge the estate of him to whom it is made the mesne with clause of acquitall And so if lessee for yeares or for anothers life be without impeachment of wast and the lessor confirme to him for his own life and omit that clause hereby this priviledge is gone and the estate is become punishable for the wast This kind of confirmation Crescens must have all the qualities of the former and there must be also in this case a privity between Co. 9. 142. super Lit. 305. Dier 145. 290. Co. 6. 15. Lit. Sect. 533. 532. 523. Dier 263. the confirmor and the confirmee And then it may enlarge the estate of him to whom it is made as from the estate at will to an estate for yeares or to a greater estate from an estate for yeares to an estate for life or to a greater estate from an estate for life to an estate in taile or in fee and from an estate taile to an estate in fee and
or profit out of land confirme to Lit. Sect. 535. 536. 537. the terretenant his estate in these cases notwithstanding this confirmation the signiory rent common c. doe continue and this shall not enure to extinguish it If the disseisee and a stranger disseise the heire of the disseisor Co. super Lit. 298. and the disseisee confirme the estate of his companion this shall not enure to extinguish the suspended right of the disseisee but when the heire of the disseisor shall reenter it shall be revived And if the grantee of a rent charge and a stranger disseise the tenant of the land and the grantee confirme the estate of his companionâ— this shall not enure to the rent suspended to extinguish it but after the reentry of the tenant the rent shall be revived If a man hold his land of me by Knights service rent suit of court Co. super Lit. 305. c. and I confirme his estate to hold of me by Knights service only for all manner of services and demands in this case albeit this doe abridge the service yet it shall not be construed to take away wardship reliefe aid to mary my daughter and make my sonne Knight and the like If I have an estate in land for my life and he in the reversion doth See before confirme the estate to me and my wife for the terme of our lives this shall enure only as a confirmation of my estate and not so as to give any estate to my wife But if I have a lease for life or yeares in right of my wife and he in the reversion doe confirme the estate to me and my wife To have and to hold to us for our lives this shall enure not only to confirme the estate but also to create an estate to me after my wives death And in the case of a lease for yeares it maketh our estate joint but in the case of a lease for life I shall take by way of enlargement of estate for my life after my wives death And if in this case the confirmation be to me and my wife To have and to hold the land to us two and our heires this shall enure to us in fee simple as Jointenants If land be let to husband Co. super Lit. 299. and wife To have and to hold the one moity to the husband for his life and the other moity to the wife for her life and the lessor confirme to them both their estate in the land To have and to hold to them and their heires in this case as to the one moity it doth enure only to the husband and his heires but as to the other moity they shall be Jointenants And yet if such a lease for life be made to two men by severall moities and the lessor confirme their estates in the land To have and to hold to them and their heires by this they are tenants in common of the inheritance If the disseisee confirme the estate of the disseisor To have and to Lit. Sect. 419. hold to him and his heires of his body engendred or To have and to hold to him for terme of his life this shall enure to him as a fee simple and shall confirme his estate for ever If my disseisor make a lease for life the remainder over in fee and Co. super Lit. 298. 297. I confirme the estate of the tenant for life this shall not enure to nor availe him in remainder And if the disseisor make a gift in tail the remainder to the right heires of the tenant in taile and the disseisee confirme the estate of the tenant in taile this shall not extend to the fee simple no more then if the disseisor make a gift in taile the remainder for life the remainder to the right heires of the tenant in taile and the disseisee confirme the estate of the tenant in taile for this shall extend only to the estate taile and not to the remainder for life or in fee. But if the disseisee in the first case confirme the estate of him in the remainder this shall enure to and availe the tenant for life And so if a disseisor make a lease for life and keepe the reversion and after the disseisee doth confirme to the disseisor this shall enure to the tenant for life And so if a disseisor make a lease for life to A and B and the disseisee confirme the estate of A this shall enure to B and make his estate good also in the other moity And so if there be two disseisors and the disseisee confirme the estate of one of them without saying more this shall enure to them both But if the confirmation be of the land To have and to hold the land to one in this case it may enure to him alone So if a disseisor enfeoffe A and B and the heires of B and the disseisee confirme the estate of B albeit it be but for his life yet this shall enure to both and to the whole fee simple If a lease be made for life to A the remainder to B for life and the lessor confirme their estates in the land To have and to hold to Co. super Lit. 299. them and their heires this shall enure as to the one moity to A in fee after the death of B and as to the other moity in fee to B after the death of A. If lands be given to two men and the heires of their two bodies Co. Idem begotten and the donor doth confirme their estates in the land To have and to hold the land to them two and their heires it seems this shall enure to them as a joint estate for their lives and after for severall Inheritances If the lessee for life or the disseisor doth make an absolute lease Lit. Sect. 516. 521. 519 520. 541. Co. 579. for yeares and he in the reversion or the disseisee doth confirme the estate of the lessee for yeares this makes the lease good for all the time So if the disseisor makes a lease for life and the disseisee doth confirme the estate of the lessee for life this makes the estate good for the life And if he in reversion confirme the estate of the termor but one houre this doth make it good for all the terme And if an estate for life or in fee be confirmed but for one houre it is a good confirmation for all the estate And if the disseisee confirme the estate of the disseisor To have and to hold for one houre yeare or for life or in taile this is a good confirmation for ever and makes his estate unavoidable And yet if the disseisee confirme the land Habendum the land for life or in taile c. contra If a voidable lease be made for forty yeares and the lessor confirme â—ier 52. 339 Co. 5. 81. the terme for twenty yeares this is a good confirmation of the whole terme
his Will he doth give White Acre to B and his heirs in this case the first Devise to A is void * Dyer in his Lecture 1. per Inst Dodr. And yet in this last case some have held the Devises shall be good and that A and B shall be Joint-tenants Ideo Quaere * Trin. 9. Ia. B R. If one devise all his land to I S and his heirs excepting 20 l. for seven years which he willeth shall be imployed for his children this is a good Devise of this summe of 20 l. a yeare 9. And a man may devise his land for so many yeares as I S shall name and after appoint that his Plow â—23 546. sonne shall have it during the minority of his sonne and both these Devises may stand together And therefore if A be possessed of the Mannor of D for yeares and he deviseth all his Term to his eldest sonne if he live so long and if he die before he have any issue of his body then to his younger sonne in the same manner but withall he doth appoint that his wife shall have the occupation of the land untill his eldest sonne be 21 years of age these Devises shall stand together and the wife shall enjoy the Mannor for that time by this Devise 10. A man may devise a term of years by way of remainder as for example a man that is possessed of a term of Coo. 8. 95. Plow 519. 546. 516. 539. Dyer 277. years of land may devise it to I S for life the remainder to I D or to I S for life and that it shall after remaine to I D or to I S for so many years as he shall live and after to I D or in any such like manner these are good Devises both to the first and to him in remainder also by way of Executory Devise though not by way of remainder and in this case the first Devisee cannot hinder the second Devisee of the remnant of the terme But a man cannot by Deed Grant in his life time grant his term in this manner * Coo. 10. 8â— â—7 pasâ—â— 17. â—ac B. R. child versâ—s Baily Nor if a man be possessed of a term can he entaile it by his Will And therefore if a man possessed of his terme of years of land Devise his term or his land to I S and his heires or to I S and the heirs of his body or to I S and his issues the remainder to I D this remainder is void and it is a good devise of the whole terme to I S and his Executors * 37 〈◊〉 6. 30. 〈◊〉 Broo. Sect. 388. 3â—4 209. Also a chattell personall may as it seemes be devised to one for life and afterwards to another but yet so as the one must have the property only and the first but the occupation only as if one devise that I D shall have the occupation of his plate for his life and after that it shall remaine to I S this is a good Devise of the plate to I S. But if the thing it selfe be devised to the first of them then the Devise to the second is void for the gift of a chattell personall for one houre is the gift of it for ever And so it did seeme in the Lady Daves case Hill 9. Car. B. R. 11. A Legacy of goods or chattels may be given Swinb part 4. Sect. â—7 to or untill a certaine time or from or after a time certaine or incertaine as for five years or from or untill the marriage of A or the like and these Dispositions are good 12. A man may Plow 524. devise his land for so many yeares as I S shall name and if I S doe name a certaine number of yeares in the life time of the Devisor this will bee a good Devise But if one devise his land for so many yeares as his Executor shall name it seemes this Devise is not good 6. As touching the sixth thing required in a good Devise these things are to be known 1. That Lands Tenements Dyer 371. Coo. 8. 83. 6. 16. super Litt. 111. Perk. Sect. 496. 500. 497. 538. Lit. Sect. 167. Dyer 155. old N. 〈◊〉 Sixthly in respect of matteâ— touching the thing devised and what may be devised and by what name and Heriditaments for the nature and quality of them are devisable as well as other things And therefore by the custome of some places lands in possession reversion or remainder are devisable in Fee for life or yeares and a man that hath a Lease for yeares of land may devise the land at his pleasure during his term But by the ancient Common-Law in favour to heires the lands that a man had in Fee simple were not devisable by Testament except only in Devise of lands and teâ—â—ements some speciall places by the custome of the place as Gavelkind-lands in Kent and lands within certaine Borrow-Townes as London Oxford c. and by the custome of those places such lands are devisable And in some places the custome is that they may devise their purchased lands only and in other places that they may devise their lands discended also And in some places the custome is that they may devise for life only and in other places that they may devise in Fee-simple and Fee-taile also And in all these places where such customes are they may devise their lands now as they might have done before the Statute for the Statute hath not destroyed their custome And therefore at this day they that have such lands in such places have their election eitheir to devise according to the power the custome doth give them or according to the power the Statute doth give them and in the first case the Devise is good against the heire for the whole and in the last case it is good against him for two parts in three only Also by the Perk. Sect. 496. 528. 538. Common-Law the Uses of lands were devisable as goods and chattels were as the pleasure of him that had them But otherwise and in other cases lands and tenements might not be devised and disposed by Will untill 32 H. 8. at which time the owners of lands tenements rents c. were by Act of Parliament enabled to devise and Stat. 32. H. 8 c 1. 34 H. 8. c. 5. dispose their lands as followeth He that hath any land in possession reversion or remainder by Socage Tenure and hath no land held in Capite or by Knights Service may devise all his land or any rent Common or other profit apprender out of it to any person in Fee-simple Fee-taile for life or years at his pleasure Hee that hath any such land held of the King in Capite by Knights Service or by Knights Service and not in Chiefe or held of any common person by Knights Service may devise two parts thereof in three to be devided or any rent c. out of
of a Subject by Socage and he devise all the Capite land to a stranger that this is a good Devise for the whole and that the King shall be satisfied by the Socage land And if it be of the value of the third part albeit it be but of an estate Taile whereof the Ancestor was seised or it be new purchased land yet it is sufficient And therefore if some lands be given to a man and the heirs of his body of the value of 10 l. per annum and he be seised of other lands in Fee-simple to the value of 20 l. per annum and all or part of these are held in Capite by Knights Service in this case he may devise the lands in Fee-simple and leave the entailed land to discend for a third part And if a man be seised of such land and convey it to the uses within the Statute or any of them and after purchase new land and leave that to discend this is sufficient 11. The third part that is left to discend to satisfie the King or other Coo. 3. 34. Lord must discend immediately and he must not stay for it And therefore if a man be seised of three Acres of land held by Knights Service in Capite and make a Lease of one Acre for life and after devise the other two Acres this Devise is not good for the whole two Acres but for two parts in three thereof only and albeit the Tenant for life die afterwards yet this will not help the matter But if the Devisor leave a full third part immediately to discend in Fee-simple or in Fee-taile he may devise the other two parts at his pleasure And if he doe not leave a third part to the full it must be made up and supplyed out of the other two parts which in case of the King is done by Commission out of the Court of Wards and in case of a Subject by Commission out of the Chancery 12. As the Coo. super Litt. 111. 9. â—33 3. 32. 30. third part left to discend must bee of as good value as either of the other two parts is at the time of the death of the Testator or otherwise the Devise of all the residue will not be good so must it bee taken out of the lands of the Testator indifferently And therefore if a man be seised in Fee of land held in Chiefe by Knights Service and make a Feoffment of the one halfe of it to the use of himselfe for life and after to the use of one he doth intend to marry and after to the use of another in remainder or to any other such like uses within the Statute and after he doth marry the same woman and after he deviseth the other moity to his wife children or any other in this case albeit the wives estate have precedency yet the King shall have his third part out of both the moities equally So if one be seised of Gavelkind land held in Capite and his sonne being dead devise part of it to one of his grand-children and part of it to another and part to a third Taile in this case the Kings third part shall come out of all the three parts equally and accordingly the Devise will be void for so much to every one of them So if one hold three severall Mannors of three severall Lords he cannot devise two of these Mannors leaving a three to discend but he may devise two parts of every of the third Mannors and a third part of each Mannor must discend to each Lord for there must be an equallity in these things For further illustration of which things the examples following are to be heeded W B being seised of the Mannor of Thoby in Capite Coo. 3. â—ut ler Bakeâ—s câ—se and of lands in Fobbing held in Socage in Fee and he and his wife being seised of the Mannor of Hinton held in Capite to them and the heiâ—es of their two bodies begotten by an estate made to them during the Coverture for the joynture of the wise the reversion to W in Fee and Thoby doth amount to the value of two parts and Hinton and Fobbing to a third part and W B by his Will in writing doth devise Thoby to his wife for life upon condition that she shall not take her former Joynture with divers remainders over and die and shee refused her former Jointure in Hinton in this case it was adjudged that the Devise was not good for the whole Mannor of Thoby and that the Mannor of Hinton was not a sufficient third part to discend L L being seised of the Mannor of Affaland Coo. 10. 78. I â—onard Leoveis case Coo. 11. 24. Heaâ—ton Rillaton Pâ—ngelley Willesworthy and Trivesquite the last only held in Capite in Fee and having issue Thomas his eldest sonne William Humfry and Richard younger sonnes which Richard had issue Leonard makes a Feoffment of these Mannors to divers uses viz. of the Mannors of R P W and A to the use of the Feoffor for life and after to the use of such person as he should appoint by his last Will and after to the use of W his second sonne in Taile and after to his other sonnes in Taile and after to the use of the Feoffor and his wâ—fe in Taile and after to the use of the Feoffor and his heirs for for ever And of the Mannor of H to such like uses and of the Mannor of T also to such like uses and the same uses were with power of Revocation And after the Feoffor purchased eight Acres of other land held in Socage and after did revoke the uses of the Mannors of R P W and A and after devised some of the said Mannors excepting some peeces and the said eight Acres of land to his eldest sonne and the heirs males of his body for 500 yeares on certain conditions and if he die without issue that it shall goe to William c. and afterwards he dyed seised of the said eight Acres of land and the lands devised by the Will at the time of the death of the â—estator were of the yearly value of 24 l. 14 s. 10 d. per annum non ultra and the lands whereof the Feoffment was made and not revoked were at the time of the death of the Testator of the value of 55 l. 6 s. 8 d. in this caâ—e it was adjudged that the Devise of the eight Acres newly purchased was void at least for a third part and restrained by the reversion in Fee expectant upon the estate Taile made to the younger sonne of the Mannor held in Capite And it was resolved That if a man be seised of three Acres of equall yearly value one of them held of the King by Knights Service in Capite and have issue two sonnes and give the Acre so held and another of the Acres to his younger sonne whereby hee hath so executed his power by the Statute that hee
except it be so called the Devise is void And yet by the Devise of the use profit or occupation of land the land it selfe is well devised and by the Devise of land it selfe the reversion thereof may be devised But if one intending to devise a horse doth devise an oxe or meaning to give gold doth give apparell these Legacies are void unlesse his meaning may appeare by some circumstance to be otherwise as if a man have but one horse and he be called Arundell and he devise his horse Bucephall this Legacy is good enough And if a man give all his mâ—ny in such a Chest when in truth there is no mony in that Chest or give to another the 10l which I S doth owe him when in truth I S doth not owe any such money this Devise is void And yet if the Devise bee thus viz. I give â—o A B 10l and I will that the same bee paid of the money I have in such a Chest or of the money which such a man doth owe me in this case the Devise is good albeit theâ—â—â—e not any money in the Chest or owing And if one give 10l remaining in such a Chest whereas in truth there is but 5 l. in the Chest in this case the Legacy is good for the 5 l. But error and mistake in the quantity and quality of the thing devised when the same for the substance of it is certaine doth not hurt And therefore if the Testator meaning to give the fourth part of his goods give the one halfe or meaning to give but 50 l. give 100 l. or è converso meaning to give a greater doth give a lesse quantity or sum in these cases the Legacy is good and the Legaâ—ary shall have as much as the Tâ—stator did meane If a man give his white horse when in truth he hath but one horse and that is black this is a good Devise of this horse And if the thing devised be under such generall words that Incertainty in the thing Devised Swinb part 7 cap. â—0 the minde of the Testator cannot bee knowne by it the Devise is void And therefore if the Testator say I doe bequeath something or I bequeath a substance or I bequeath a body or I bequeath or the like these Devises are void for incertainty So if he say I doe give lands or I doe give goods these Devises are void And yet if the Testator give a horse an oxe a gold chaine or the like indefinitely in these cases the Devise is good albeit he have no such thing But if one devise thus I give lead money wheat oyle or the like and say not how much or what quanitity this Legacy is void for incertainty or at least the Executor may deliver what quantity thereof he will and this shall satisfie the Legacy 7. As Seventhly in respect of the Tenures and conditions causes and ends of the Devise Swinb 2â—9 touching the terms of a Devise it must be known That if one devise any thing to wicked ends or upon wicked conditions as to the end that the Devisee shall kill a man or because he hath killed a man or the like these Devises are void in like manner as it is when the cause or motive is false as because one is my Cousin or hath lent me money I devise to him 20 l. and hee is not my Cousin or did not lend me money these Devises are void And as touching the rest of the properties of a good Devise see them before Coo. 3. 36. in the properties of a good Testament And here by the way A Caveat for making of Testaments be advised if thou hast land to settle rather to doe it by act executed by advice of learned Counseâ—l in thy life and health-time and therein adde such conditions and provisoes of revocation and otherwise as thou wilt or if thou wilt doe it by Will then doe it in thy perfect memory and by learned advice Let the Will bee indented and of two parts and leave one part with a friend that it be not suppressed after thy death Let there be credible Witnesses to the publication thereof and let their names be subscribed to it Let the whole Will be written with one hand and in one peece of paper or parchment for feare of alteration addition or diminution Let the hand and seale of the Devisor be set to it And if it be in severall parts let his hand and Seale and the hands of the Witnesses be to every part If there be any rasing or enter-lining let there be a Memorandum of it And if thou make any revocation of thy Will doe it by good advise and by writing Vox audita perit Litera scripta manet The generall rules for the Exposition of Wills are these That they Plow 540. Coo. supeâ— Litt. 322 8. The Exposition of Testaments and Devises and how they shall bee construed and taken Devises of Land First in respect of the peâ—son that is to take by the Devise and what when and how he shall â—o take by the Devise must have a favourable and benign interpretation and as neare to the minde and intent of the Testator as may be and yet so withall as his intent may stand with the rules of Law and bee not repugnant thereunto It is said to be therefore a maxime of Law Quod ultima voluntas testatoris perimplenda est secundum veram intentionem suam according to these Verses Sed legum servanda fides suprema voluntas Quod mandat fierique jubâ—t parere necesse est If a Devise be made of land to I S and the heirs males of his Termes of the Law tit Devise Coo. super Litt. 25. Plow 414. body by this Devise the sonnes and not the daughters of I S shall have the land And if a Devise be made of land to I S and the heirs Females of his body by this Devise the daughters and not the sonnes of I S shall have the land And yet it hath been said in these cases that if in the first case the Devisee have issue a daughter who hath issue a sonne or in the last case hath issue a sonne who hath issue a daughter that this sonne and daughter shall take by this Devise in these cases but it seemes the Law is otherwise If a Devise be made of land to I S and his heires males by this 27 H. 8. 〈◊〉 Grant Devise I S hath an estate Taile but otherwise it is of such a limitation by Deed for if one by Deed give land to another and his heirs males by this the Donee hath a Fee-simple and his heirs generall shall have it If a Devise be of land to I S and to the eldest heirs females of Coo. supeâ— Litt. 27. his body by this Devise all his daughters and not one of them only shall take it So if one devise Gavelkind-land to a man and his eldest heirs
20. Iâ—c periâ— versâ—s Peaâ—se B. R. Joane Elizabeth and Anne and by B his second wife â—lice and Elizabeth and by C his third wife William a sonne and three daughters Mary Katharine and Johan and he devise his land to Johan his youngest daughter for life paying 1â—s 4d to the sonne and after her death to the sonne and the heirs of his body and after his death without issue to Elizabeth the daughter of the second wife and Mary the daughter of the third wife for their lives the remainder in Latin to the next of the blood of the Devisor for ever and the elder Joan hath issue I P and dyeth the sonne dyeth without issue the younger Joan hath issue and dyeth Elizabeth of the first wife hath issue and dyeth Anne dyeth having issue Alice dyeth without issue Mary and Elizabeth born of the second wife die without issue Katherine dyeth without issue in this case and by this Devise the sonne and heir of the elder daughter after the death of the sonne without issue and of Elizabeth and Mary and not all or any of the children or their children shall have the land because proximo in Latin doth devote a person certain and there be expresse Devises to others But if in this case the remainder bee limited in generall to the next of blood without any other matter all the daughters perhaps may have it as Joint-tenants If a man have two sonnes and a daughter which hath two daughters â—â—â—z Devise 9. Perk. Sect. 508. and he devise his land to a stranger for life the remainder to his second sonne for life the remainder in Fee to the next of blood to his sonne in this case if the eldest sonne die without issue the daughter and her daughters shall have the land Whatsoever will passe by any words in a Deed will passe by Secondly in respect of the thing devised See in the Exposion of Deeds supra the same words in a Will and more also for a Will is alwayes more favourably interpreted then a Deed And therefore if a man devise the profits use or occupation of land by this Devise the land it Coo. 8. 94. Plow 525. selfe is devised If a man devise thus I give all my lands to I S or I give all my Mevils case Fitz. Deviâ—e 4. Bâ—oo Done 41. tenemeâ—ts to I S or I give all my lands and tenements to I S by this Devise is given and I S shall have not only all the lands whereof the Devisor is sole seised but also all the lands whereof he is seised in common or co-parcinery with another and not only the lands hee hath in possession but also the lands hee hath in reversion of any estate in Fee-simple but by this Devise regularly Leases for years of lands will passe If a man devise thus I give all my land in possession only by Plow 66. this Devise there is given the lands he hath in possession only and none of the lands he hath in reversion If a man be seised of land in Fee-simple in Dale and devise thus Plow 343. 544. old N. 〈◊〉 89. Fitz. Devise 17. I give all my lands in Dale to I S and after Will made and published he doth purchase other lands in Dale and dyeth in this case and by this devise I S shall not have the new purchased lands and in this case it hath beene held further That if the Testator doe by word of mouth after the purchase of the same lands declare himselfe to be minded that I S shall have the same new purchased lands also by this Devise that notwithstanding I S shall not have them by this Devise * Trin. 37 Eliz. B. R. Breckford versus Parincoâ—e And yet it hath been adjudged That if in this case one come to the Devisor to buy his new purchased land and he say nay but I S shall have it as the rest that this is a new publication of the Will and that I S by this devise shall have these new purchased lands for a new publication of the Will in these cases will make the land to passe But if a man devise the Mannor of Dale and at the time of the devise he hath it not or devise his lands in Dale and at the time of the devise he hath no lands there and afterwards he doth purchase the Mannor of Dale or lands in Dale by this devise and in this case the Mannor and the new purchased lands will passe for in this case it shall be intended he meant to purchase it And yet the Statute enabling a man to devise lands saith Any person See before having c. Coo. 3. 30. If one have an ancient Tenement and lands belonging to it and Loftis versus Baker Hill 20. Ia. B. R. then purchase more lands and occupy them altogether with the Tenement many years and being all thus in his occupation he doth make a devise after this manner I give my Tenement in Dale and all my lands belonging to it now in my occupation to I S. by this devise I S shall have the ancient land onely and none of the new purchased land but if there be no ancient land belonging to the Tenement but new purchased land onely there perhaps it may be otherwise for in this case the words cannot else be satisfied As in case where a man hath some lands in Fee-simple and other lands for yeares onely in Dale and he devise all his lands and Tenements in Dale by this devise the lands he hath for years doth not passe but if he have no other lands in Dale but these lands in this case perhaps this land will passe If one have a moity of lands in Essex and a moity of lands in In Mevils case Kent and he devise thus I give my moities and all my other lands in Kent to I S it seems by this devise the moities in both Counties do passe and that I S shall have both the moities If a man be seised in Fee in possession of the moity of a Farm called Plich 20. 12â— Adiudged Scatergoods case the Farm of C. and of the reversion in Fee of the other moity expectant on a lease made to A and B for their lives and he make his Will thus I will that my wife shall have all my living which I now occupy untill my son come to 21. years of age and then I will have her have the thirds of all my living and that my sonne shall have all my Farm of C to him and his heirs by this devise if A and B dye before the heire be 21. yeares of age the wife shall have the thirds of the whole Farm and not of the moity in possession onely If a man be seised of land in a Village and in two Hamlets of the Dyer â—65 same Village and he devise all his lands in that Village and in one of the Hamlets by this
one doth devise his land to I S after the death of his wife that by this Devise the wife hath an estate for life by implication And therefore if a man devise thus I give my goods to my wife and that after her decease my sâ—nne and heire shall have the house where the goods are it is held by this Devise that the wife hath an estate for life in the house by implication for a man is bound to provide for his own wife But if a man devise his land to I S after the death of I W a stranger to the Devisor it seemes that by this Devise I W hath no estate at all by implication and that this doth but set forth when the estate of I S shall begin and that the intent of the Testator is that his heire shall have it untill that time If one devise land thus I give my land in Dale to I S to the intent Coo. 6. 16. 3. 20. Bâ—oo Estates 78. that with the profits thereof he shall bring up a child or to the intent that with the profits thereof he shall pay to A 10l or to the intent that he shall out of the profits thereof pay yearly 10l by these Devises I S hath only an estate for life albeit the payments to be made be greater then the rent of the land And therefore it is not like to the case before where a summe of money is to be paid presently If one devise his land thus I give my land to Alice my Cosin in Dyer 357. Fee-simple after her decease to W her sonne who is her heir apparant by this Devise she hath an estate for life first the remainder to her sonne for his life the remainder to the heirs of A in Fee-simple And so also is the Law when the Devise is to any other after that manner If my father be tenant for life of land the remainder to me in Fee Dver 371. and I devise this land to my wife rendring for her naturall life 40â— to the right heir of my father by this Devise my wife hath an estate for life after the death of my father If one devise his land unto his Executors untill his sonne shall Fâ—r 〈◊〉 come unto 21 yeares of age the profits to be imployed towards the â—oo 3. 20. performance of his Will and when he shall come to that age then that his sonne and his heires shall have it by this Devise the Executors shall have it untill he be 21 yeares of age and if he die before that time untill the time he should have been 21 yeares of age if he had lived so long and shall in this case shall be taken for should If one devise his land to his Executors for the paiment of his debts and untill his debts be paid by this Devise the Executors have Coo. super â—â—tt 42. but a chattell and an incertaine interest and they and their Executors shall hold it untill the debts â—e paid and no longer If one devise his land to I S and the heires males of his body Coo. 10. in Leonard â—oveis case 87. 46. for the term of fifty yeares it seemes that by this Devise I S hath but a Lease for so many yeares if the heires males of his body shall so long continue and that for want of issue male the terme of yeares shall end And in this case the Executor or Administrator 〈◊〉 not the heirs males of I S shall have it after his death If one devise his land thus I give to I S and I D and their Adiudged Loweâ— versus Câ—xe Mich. 37. 38. â—liz Co. B. Dyer 25. Lit. Bâ—o Seâ—â— 133. Lâ—tt 2â—3 Perk. Sect. 170. Dyer 350. heirs my land in Dale equally or my land in Dale to be equally Fourthly in respect of other 〈◊〉 divided by these Devises I S and I D shall have and hold the land not as â—ointenants but as Tenants in common so that the heire and not the servivor shall have his part that first dyeth And yet in case of such a limitation by Deed it is otherwise And if one devise his land to I S and I D and their heires without more words it seemes that by this Devise they shall take and hold as Joint-tenants * Dyer 326. And yet if one devise land to I S and I D and the heires of either of their bodies lawfully engâ—â—dred it seemes that by this Devise I S and I D shall take and hold aâ— Tenants in common and not as Ioint-tenants * Paâ—che 9. Ia. New mans case And if one devise his land to I S and I D thus I will that I S and I D shall have my lands in Dale and occupy them indifferently to them and their heires If one be possessed of a terme of yeares of land and devise the Hill â—3 Ia. B. R. Adiudged Blandfords case Devise of gâ—ods and chattels same to his wife during all the years and if she die within the years then to A and B his two sonnes if they have no issue male but if they or either of them have issue male then that it shall goe to First in respect of the person that shall take by the Dâ—vise the use of those issues male and she die and the two sonnes die without issue born one of their wives being privily with child of a sonne which after his death is borne in this case and by this devise this issue male shall have it assoone as he is borne If one be possessed of a terme of yeares and he dâ—vise it to another Coo. 10. 4â— Lampets case Perk Sect. 558. 559. and his heires or his heirs males by this Devise the Executors Executors or Administrators not the heirs of the Legatee shall have it And Hâ—ire therefore if Lessee for years of land devise all his interest therein to his wife if she live so long and after her death if any part of the term be to come devise the same to I S his sonne and the heirs of his body in this case and by this Devise the Executors and Administrators of I S not his heires shall have it at least so long as he hath any heires of his body And yet if one possessed of a term of years devise it to I S and after his death that the heir of I S shall have it in this case I S shall have so many years of the term as he shall live and the heir of I S and the Executor of that heir shall have the residue of the term If one give 10 l. to the children of I S and at the time of the Swinb 316. Devise I S hath foure children and after before the death of the Testator he happen to have two more in this case and by this Devise the two children he hath afterwards shall have no part of the 10 l. but those foure he had before shall have
Seventhly in respect of the manner and â—rame of the words used in the raising of uses and what manner of uses may be made or not making and raising of uses wherein there is much regard to the minde and intention of parties For if one covenant in consideration Coo. 3. 91. of 20 l. paid him by I S to stand seised of land to the use of I S and his heires or if one covenant that I S and his heires shall have his land if this Deed be inrolled this is a good bargain and sale to raise the use and will doe it as well as when it is made by the words bargaine and sell So if one for good consideration by words Coo. 2. in Sir Rowland Hay wards case Wards versus Lambert Co. B. Pasche 37 Eliz. of Demise and Grant make a Lease of his land for a term of years hereby the use will rise to the Leassee as well as if the Lease were made by the words bargaine and sell Et sio de similibus And yet if one by words of bargaine and sell convey his land to his son Inrolment no use will arise by this except there be money paid and the Deed be inrolled And if one in consideration of money grant his land to his sonne or any other by the word enfeoffe no use will rise by this unlesse Livery of Seisin be made thereupon because the intent of the parties in these cases doth appeare to be to passe it in another manner And if in the last case Livery of Seisin bee made Resolved in Stiles case 3â— Eliz. then the use shall be guyded by Law that is if nothing be given it shall be to the use of the Feoffor and not amount to a limitation of use to the sonne * 21 H. â— 18. Plow 308 301. Broo. Feost mental use 16. If one covenant with his sonne that his land shall remaine or that his land shall discend to him this is a good covenant to raise the use according to the limitation And yet if one covenant with his sonne upon his marriage that his land shall remaine revert or discend to his sonne in Fee or in Fee-Taile by this no use will be raised because it is so incertaine but perhaps this may amount to a covenant whereupon the sonne may have an Action of Covenant If I covenant for me and my heires that Covenant I and my heires and all others that are seised shall bee thereof seised to the use of c. this is a good covenant to raise the use albeit it be in words of the future tense If I covenant with my Dyer 374. eldest sonne and strangers to convey my land to the same strangers to the use of my selfe for life and after of my sonne in Taile c. and I grant by the Deed that the said persons seised of the said land shall be from thence seised to the said uses and none other use and no other conveyance is made it seemes this is sufficient to raise the use And yet if I be seised of land in Fee and Covenant with I S that A B and C D and their heires shall stand and be seised of this land to the use of c. it seemes this is not a good covenant to raise the uses If a Feoffment or other conveyance Coo. 1. 120. be made to the use of the Feoffor and the heires of his body on the body of M the wife of S T and for default of such issue to the use of him and the heirs of his body of S the now wife of W K and for default of such issue then to the use and performance of his last Will for 10 yeares immediatly after his death and after the term ended to the use of the Feoffees and their heirs during the life of W eldest sonne of the Feoffor and after his death to the use of the first issue male of the body of the Feoffor lawfully begotten and the heires of the body of such first issue male and for default of such first issue male to the second issue male c. in the same manner these are good limitations of uses So if a use be limited to I S for life without impeachment of waste and after to the use of Coo. 1. 90. B and C their Executors and Administrators for the term of twenty years and after to the use of C and the heires males of his body c. these are good uses So if a use be limited after this manner Coo. 6. 18. Lit. Sect. 462. 403. viz. to the use of a mans last Will and Testament or to the use of such person and persons and of such estate and estates as he shall limit and appoint by his last Will and Testament or to the use of such person and persons or to such uses and purposes as he shall by any writing under his hand and seale declare and appoint these are good limitations If I covenant with another in consideration of Coo. 1. 176. blood c. that I will stand seised of my land to the use of such of my sonnes or such of my cousins as the Covenantee shall name in this case after a nomination made the use will rise well enough But if I for and in consideration of 10l or the like good consideration Incertainâ—y covenant to stand seised of land to the use of such persons as the Covenantee shall name in this case albeit the Covenantee doe nominate some of my cousins or blood yet no use will rise by this for the incertainty of it If a Feoffment or other conveyance be to the use of I S and his heires provided that if the Foeffer pay 10l at such a day that then it shall be to the use of the Feoffer and his heirs this is a good limitation and the use will rise accordingly A use may be limitted to a woman durante viduitate sua and this Coo. 4. 3. is good If a man bee seised of two Manners and covenant to stand Coo. 11. 23. seised of the same to the uses following viz. of the one to the use of the Covenantor for his life and after to the use of his wife for life and after to the use of his eldest sonne in Taile c. And for the other Mannor to the use of his second son in Taile c. these are good limitations and the uses will rise accordingly If a man seised of land in Fee agree with another that a Fine Coo. 2. 69. 70. shall be levied of it and that the same shall be to the uses following viz. that I S the Conusor shall have one yearly â—ent of 50 l. during his life to be issuing out of the same land and as touching the land charged with the rent c. to the use of I D the Conusee untill default of payment of the said yearly rent and then to the use of I
S and his heirs for ever this is a good limitation and the use will rise accordingly Et sic de similibus If a Feoffment be made by I S to the uses in certaine Indentures Coo. 10. 78. Tripartite of the same date and therein is declared that it shall bee to the use of A for life without impeachment of Waste and after to the use of such Farmoâ— or Tenants to whom he shall demise any part of the premises for life or lives or for any terme of yeares as in any such demise shall be limited and appointed and after to the use of the performance of the last Will of the said L and to the use of such person or persons severally to whom the said L by his last Will and Testament shall appoint any estate and after to the use of c. these are good uses and the estates shall rise accordingly A use may be limited upon condition and the condition may Coo. 4. 14. be annexed to one of the uses and not unto another If lands be conveyed to I S and the heires of his body to the Coo. supâ— Lâ—â— 19. use of I S and his heirs or to the use of a stranger and his heires this use will not rise in this manner And yet if lands be conveyed to I S and his heirs to the use of him and the heirs males of his body and after to the use of a stranger and his heires it seemes this is a good limitation If one grant lands by Deed to husband and wife To have and to Hill 6. Car. B R. Aâ— iudge hold to the use of the husband and wife and of the heires of their two bodies this is a good estate Taile by this limitation albeit he doe not say Habendum to them and their heirs c. but Habendum to their uses but otherwise it were if the use were limited to a stranger in this manner If lands be conveyed by I S to I D to the use of I S or to the Dye◠〈◊〉 use of his wife for life or to the use of any other for life the remainder to another in Taile or for life the remainder to a third his Executors c. for six months and after the six months ended to the use of a fourth and his heires these are good limitations and the estates will rise accordingly If a use be limited to the Conusee of a Fine or a Recoveror in a Dyer 2â—â— Recoverie untill he make a Lease for fourty yeares and after to the use of the Recoverees or Conusors and their heirs this is a good limitation and the use will rise accordingly Contingent uses or use in posse may be created as well as uses in esse and therefore if lands be conveyed to the use of a man and the Coo. 1. â—â— Câ—â— case 13â— wife he shall afterwards marry or to the use of his first second or third wife or to the use of I S for life and after to the use of the right heires of I D and I D is then living or to the use of I S for life and after to the use of him that shall bee his first heire male and the heires of the body of such heire male c. all these and such like are good uses but they are uses at the Common-Law Righthly in respect of the nature and quality of the â—â—e still and are not executed by the Statute untill they come in esse The last thing whereunto respect is to be had is the nature and qualiâ—y of the use And herein it is to be known that a man may at this day by act executed in his life time or by his last Will and Testament at his death give his Lands Tenements or Hereditaments Coo. 1. 26. 3. 131. 4. 113. Charitable uses to any person or persons not corporate and their heires for any religious charitable or civill use as well as for any private use And therefore a man may so dispose of his lands for the finding of a Preacher erecting or maintenance of a Schoole reliefe and comfort of maimed souldiers sustenance of poore people reparations of Churches High-wayes Bridges discharging of the poore Inhabitants of a Village of the common charges to make a stock for poore Labourers iâ— Husbandry and poore Apprentices and for the marriage of poore Virgins or other such like uses and these uses are not prohibited by any Statute And it is good policy upon every such Feoffment or estate to reserve to the Feoffor and his heires some small rent or to set down some small consideration But these uses are not such uses as are executed by the Statute of uses neither are they to bee resembled to the usâ—s aforesaid for in this case if there be any mis-imployment of the lands or breach of the trust by the parties trusted redresse is to be had by the Lord Chancellor or Lord Keeper by a speciall course of proceeding For which see the Statutes of 39 Eliz. chap. 6. 43. Eliz. chap. 9. 7 Iac. chap. 3. But if any man have heretofore given Superstitious Vâ—â—s or heretofore shall give any Lands Tenements of Hereditaments Stat. 15. R. 2. ch 5. 37. H. 8 ch 4. 1. Ed. 6. ch 14. by act executed in his life or by his last Will at his death to any person singular or corporate in Fee-simple Fee-Taile for life or yeares to the intent or upon condition to maintaine any superstitious use as to finde a Chaplaine and have the service of a Priest to say Masse or to have a Priest or other man to pray for the Soule of any dead man in such a Church or other place or to have or maintaine perpetuall obites lamps or torches c. to bee used at certaine times to help to save the souls or men out of the supposed Purgatory all these and such like uses are void and the lands that are so given to such superstitious uses are to be forfeited and given to the King and he shall have them and yet so that if there bee any charitable use intermixed with the superstitious use and they may bee distinguished the King shall have only so much as is given to the superstitious use and not that which is given to the charitable use also For which See Adams and Lamberts case at large Coo. 4. 104. Coo. 1. 175. 176. Dyer 109. 5. Declaration of Vses And where a use of land may hee declared upon any Assurance and â—â— a shall be said a suffienâ— dâ—â—laration of such a uâ—e or not As touching the Declaration of Uses i e. the manifestation or agreement of the parties to what uses and intents the Assurance made shall be these things are to be known 1. That uses may be declared or averred on a Fine Feoffment or recovery of land but on a bargaine and sale of land no use may be declared or averred but what the Law doth make And upon a
fine as doth contain a grant and render back again either of the land it selfe or of some rent common or other thing out of it to the Cognisor for some estate limiting thereby many times remainders to strangers which be not named in the writ of covenant which also is sometimes with reservation of rent clause of distresse and grant of the same over The manner and order of suing out or levying of a fine is thus Experientia Stat. de modo levandi Fines 18 E. 1 West Simb ut supra 1 H. 7. 9. Broo. Fine 116. First there is an originall writ sued out and this may be a writ of 4. The manner order of levying of a Fine Mesne Warrantia cartae de consuetudinibus et servitiis or any writ of right for upon these or any other writ whereby land is demanded or may be recovered a fine may bee levyed but the most usuall writ whereupon a fine is levyed is a writ of covenant And whiles this writ is depending for howsoever it be the common practise to take out a Dedimus potestatem and have the conusance of a fine before any originall writ be sued forth yet the originall writ is alwaies supposed in law to precede the Dedimus potestatem and therefore doth and must evermore beare Teste before it or else it is erroneous After the originall writ sued forth thre is a Precipe which is the tituling of the writ whereupon the fine is levyed and the concord and agreement of the parties both which are fairly written and that most commonly in parchment after this the partie or parties that is or are to knowledge and levy the fine is or are to come in person before him or them that have power to take the same conusance who are to take notice of the persons that if there be any woman that hath a husband amongst the conusors in the fine they doe examine her whether she be willing and doe it freely without compulsion of her husband After this all the parties that are to levy the fine are to declare themselves before the Judges or Commissioners having power to take the same conusance to be willing to passe their right in the lands according to the agreement and to subscribe their names or markes to the concord and if it be taken by a speciall Dedimus potestatem it is to be returned and certifyed under the hands and Seales of the Commissioners into the Court of Common Pleas that it may be there recorded and finished And there the party Conusee is first to compound with the King for his license for which he is to pay the Kings silver and thereof he is to have an entry on the back of his writ of Covenant and then he is to have it inrolled by the Custos brevium and upon this roll the Proclamations are to be indorsed after this it is to be brought to the Chirographers who is first to make that Note thereof that is called the Note of the fine and hereupon if it be a Remainder Reversion Rent or Seigniorie whereof the fine is levyed the writ of Quid juris clamat Per quae servitia Quem redditum reddit as the case requireth must be sued forth And after this the Chirographer is to enter the fine of record to ingrosse it and to make and to deliver the Indentures thereof unto the Conusee and if it be a fine with Proclamations it is to be proclaimed openly in the Court of Common Pleas once every one of the four termes next after the ingrossing of it and it was to be proclaimed within the County where the land did lye at every assises and sessions the next yeere after the ingrossing of it but this it seemes is not necessary now and the next terme after the ingrossing of it the contents thereof are to be recorded in a Table made for that purpose to be set up in the court of Common Pleas at Westminster in an open place all the terme time and so also at every assises the fine may also be inrolled and exemplifyed A Fine is a Record as of great antiquity so of a high nature great Statute of Fines 18 E. 1. Co. 1. 3. Plow 358. 265. 5. The nature use and fruit of a Fine force and much credit and esteem and it is now become and serves for a formall conveyance of land and one of the common assurances of the kingdome for by this meanes a man may convey his land to another in fee simple fee taile for life or yeers with reservation of rent also It is therefore called a Feoffement of record for it doth countervaile a feoffement with livery of sesin in the country and it includeth all that the feoffement doth and worketh further of his own nature and it is indeed for many purposes the best and most excellent assurance of all others for by the ancient common law it was so high a barre and of so great force and of so strong a nature in it selfe that it did conclude and barre not onely such as were parties and privies thereto and their heirs but all others of full age out of prison of good memory and within the four Seas the day of the fine levyed if they did not make their claim within a yeer and a day And it is still of that force albeit it be somewhat enfeebled by some Statutes that either it passeth all the right and interest of the Conusor to the conusee or else it worketh by way of extinguishment and estoppell and doth perpetually barre the Conusor and his heires of all present and future right and possibility of right or other collaterall benefit to the thing whereof the fine is levyed And if it be a fine with Proclamations it doth in time become a perpetuall barre to all others also that have right except they doe take care to prevent the barre by their claime action or entry within five yeers after the proclamations ended And it barreth Intailes peremptorily whether the heire do claim within five yeeres or not if he make his claime by him that levyed the fine Any person male or female body sole or corporate that hath capacity 6. What shall be said a good Fine or not and how 1. In respect of the persons thereunto and their capacity And by or to whō a Fine may be levied who West Symb. in his Tract of Fines 17 E. 3. 52. 17 Ass pl. 17 Litt. Sect 731. Perk. Sect 24. Fitz. Fines 120. See in grant infra chap 12. Numb 4. to grant or is able to be a grant or by a deed may levy a fine and be a conusor therein but there are certain persons prohibited by law which the Judges or Commissioners that take the conusance of fines ought not to admit or receive and yet if they doe admit them and a fine be levyed by such persons the fine is good and unavoidable Fieri non debet sed factum valet and of
c. And B. by the same Concord doe grant and render the land back again to A. for life without impeachment of wast the remainder to C. the wife of A. for her life the remainder to A. and his heires this is a good Concord and by this devise a Jointure may be and is oftentimes made to a woman And if a â—nture man would have a lease for life or yeers made of land by fine the Lease lessâ—e must by the concord acknowledge the lands to be the right of the lessor who is seised of the land as that c. And then the lessor must grant and render the same land back again to the lessee the conusor in the fine for life life or for a certain number of yeers as the agreement is reserving a rent with clause of distresse and this is a good fine and a common devise for this purpose But if the lessor be tenant in taile it seems this fine will not bind the issue in taile And yet if A. tenant in taile and N. doe by fine acknowledge the land to be the right of a stranger as that c. and then the stranger that is cognisee doth grant and render the land again to N. for life or yeers with clause of distresse c. and then grant and render the reversion to the tenant in taile this is a good fine and will barre the issue in taile also and will likewise passe the rent and the reversion to the tenant in taile So if a Stranger that hath nothing in the land levy a fine Sur cognisance de droit come ceo que il ad c. To him in remainder in taile depending upon an estate for life and the cognisee by the same fine render to the cognisor for tenne yeers to begin at Michaelmas following and dieth and all the proclamations are made after his death and the tenant for life dyeth after the time the lease is to begin this is a good fine and so a good lease to barre the issue in taile If A. B. and C. levy a fine to D. and D. render the land back again West Sym. ubi supra Co. 7. 38. to A. for life the remainder to B. in taile the remainder to C. in taile and the remainder to a stranger in fee this or any such like concord as this is good And if A and B joyne in a fine of a mesuage to C and D and to the heires of C who do grant and render a charg of 30l out of the land to A for his life to begin after the death B to be paid at the feasts of c. Proviso semper quod pred concessio pred annualis reddit ' 30l non aliqualit ' se extendat ad on erand personas dict' C D sed tantummodo ad oner and dict' mesuag ' tota vita ipsius A. and then they grant and render the mesuage to A during the life of H. the remainder to be in taile the remainder to the right heires of B this is a good fine But in such a fine sur grant render these things must be heeded 1. None may take the first estate 1 24. Ed. 3. 27. Bro. Fines 108. by the Concord but the Cognisors or one of them And therefore if A knowledge a fine to B and B render and grant the land to A. Habendum sibi E. uxori ejus and the heires of their bodies So if the husband levie a fine of his wives land and the Cognisee grant and render the land to the husband and wife this is not a good Concord 2. The render of the Rent must be to one of the 2 Co. 2. in the Lord Cromwels case 3 24 Ed. 3. 26. 14 H. 4. 31. Dyer 69. 33 34. parties to the fine and not to astranger 3. A man cannot reserve a lesse estate to himselfe then fee And therefore if A knowledge a fine to B and B render to A in taile the remainder to himself for life this remainder is void So if A by fine knowledge lands to B and B grant and render the land to the Conusor in taile the remainde to B in taile the remainder to B in fee the limitation of this estate in taile to B is void and he can never have execution of it So if A knowledge the lands to B and B doth grant and render to A 4 Co. 6. 33. for life 4. The agreement must bee possible and sensible for if there be three Conusors in a fine and the Conusee render to one of them for life or yeares a rent and grant the reversion to another of them for life or yeares rendring a rent and grant the reversion in fee or in taile to the third this is not a good Concord 5. There 5 44. Ed. 3. 22. 27 H. 8. 24. can be no condition or clause of re-entrie for not payment of rent inserted into the Concord and yet some hold a fine levied to one in taile upon a condition with a remainder over is good * Co. 3. 5. super Lit. 353. 5. 38. And such Concords as these of the last sort before ought not to be received and if they be received the fine in most cases may be avoyded for these â—aults but if a fine bee received with a condition inserted into the Concord this is a good fine and not avoidable by writ of Error or otherwise No single fine can be with a remainder over to any other person contained in it but it must be to the Conusee and his heirs only Plow 248. 2. No rent can bee reserved upon a fine that is Sur Conusance de 2 50. E. 3. 9 3 Co. 5. 38. droit come ceo c. but upon a fine sur grant render or sur concessit only for if one levie a fine sur conusance c. rendring rent this reservation is void 3. No single or double fine shall be received with any covenants or other agreements then are before mentioned but in all these cases also when the fine is received and levied it seemes it is good and unavoidable and that only the remainder in the first case the rent in the second and the Covenants in the last are void and the fine good for the residue A particular tenant as for life c. cannot surrender his terme 44 Ed. 3. 36. to him in reversion or remainder by fine but he may grant and release it to him by fine One may grant his tenements which H doth hold for life and 44 Ed. 3. 45. which after the death of H. ought to remaine to him to H. for life rendring rent with clause of distresse saving the reversion and a fine of this forme is good The manors and tenements contained in the writ may bee divided 44 Ed. 3. 11 45 Ed. 3. 12. as if a fine be levyed betweene A and B of two Manors and B doth acknowledge all his right
possession but now this Law is changed and this kind of fine will barre none but such as are parties and privies thereunto But a fine by the Statute or a fine with Proclamations is now much of the same virtue and force as a fine at the common law was for by the Statute of 4 H. 7. it is provided That every fine after the ingrossing thereof shall be proclaimed in the Court the same Tearme and the three next following Tearmes foure severall daies in every Tearme which Proclamations so made the fine shall conclude all parties privies and strangers except women covert persons within 21. yeares of age in prison out of the Realme or of non sane memorie being no parties to the fine so as they or their heires take their action or lawfull entrie within five yeares after these imperfections removed Saving to all persons and their heires other then parties the right claime and interest which they have at the time of the fine so as they pursue it by action or entrie within five yeares after the Proclamations And saving to all other persons such right title claime and interest as first shall grow or come to them after the Proclamations by force of any matter before the fine so as they make their claime or entrie within five yeares after the same grow due or if at that time there be any impediment as aforesaid within five yeares after the impediment removed And by the Statute of 32 H. 8. which is an exposition of this Statute it is provided That all fines with Proclamations levied according to 4 H. 7. by any person of 21. yeares of age of any land c. before the fine levied entailed to him that doth levie the fine or any of his Ancestors in possession reversion remainder or use immediately after Proclamations had shall be a barre against him and his heires claiming only by force of any such entaile and against all others claiming only to the use of him or any heire of his body By which Statute it doth appeare that all the parties to the fine Conusors and Conusees whether they be femes Covert men de non sane memorie or others Infants only excepted who during minority may avoyd it and whether they have a naturall or civill capacity privies viz. privies in bloud as heires whether they be lineall or collaterall or privies in representation as executors and administrators and all strangers also viz. all others besides parties privies that have or pretend any present right or title except women covert and the rest that have impediment that doe make their entrie or claime or bring their action within 5. years after Proclamations had and those persons excepted also if they make not their claime c. within five yeares after the impediment removed all these are concluded i. so shut and closed up together for their right is so extinct hereby as they can never open their mouthes or lift up a finger against it Saving to all others i. such as have no present right at the time of the fine levied and were excepted before such right title claim or interest as shal accrew to them after the Proclamations upon any trust gift in taile or other cause before the fine levyed so as they make their claime c. within five years after their right first accrewed if they have then no impediment or if they have within five yeares after the impediment removed For a more full understanding of which Statutes and this matter these things in generall must first be observed 1. That the persons to be barred by a fine are 1 Parties 2 Privies 3 Estrangers The parties if they be of the age of 21. years are bound for ever by the fine and shall have no time to claim to preserve their right The privies also being heires and executors to the parties and voyd of impediment at the time of the fine levied or not if they claim by the same title that their Ancestor had that levied the fine are barred for ever by the fine and shall have no time to claime to preserve their right †Dyer 3. pasche 7. Jac. B. R. And therefore if my father disseise my Grandfather of land and then levie a fine of the land and then my Grandfather die and after my Father die by this fine I am barred of the land for ever And here note * Trin. 21 Jac. Com. B. Curia in in Will Godfreys case that he that is a privie within the intent of 4 H. 7. is an heire within the Statute of 32 H. 8. Et sic è converso And that privies or heires in estate and bloud as he that is heire to whom the land doth or should descend are within these Statutes and shall be barred by the fine of their Ancestor of that land And so also shall privies in estate that are not privies in bloud as where one hath land in burrow English and levie a fine of it hereby the youngest sonne is barred So if one bee tenant in taile to him and the heires females of his body and he levie a fine having a sonne and daughter hereby the issue female is barred and yet she is not the heire of his bloud But he that is privie in bloud only and not in estate also is not within these Statutes neither shall he be barred by the fine and therefore if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the son levie a fine and die without issue this is no barre to the daughter for howsoever she be heire of his bloud yet she is not heire to the estate nor shall need to make her conveyance to it by him The strangers that are to be concluded by the fine are either 1. Such as have present right and no impediment and these are barred within five yeares if they make not their claime within five yeares after the Proclamations 2. Such as have present right but have impediment of infancy c. and these are barred if they doe not make their claime within five yeares after the impediment removed 3. Such as have no present but future right upon cause precedent and they are either without impediment and then they are barred if they claime not within five yeares after their right doth acrew or they have impediments and then they are barred if they claime not within five yeares after the impediment removed 4. Such as have neither present nor future right at the time of the levying of the fine by reason of any matter before the fine but whose right groweth either entirely after or partly before and partly after the fine and these are not barred at all by the fine but they may make their claime c. when they will And parties privies and strangers to Plow 538. 337 375 378. fines that are barred thereby are such as have naturall capacities or civill for both these are barred And
not intended within but excepted out of the Statute of 32 H. 8. but the King himselfe being tenant in taile of the gift of some of his Ancestors being subjects may levie a fine of it to barre his issues in taile And in all cases where a recovery will not barre the issues in taile there a fine will not barre them Albeit the fine of the husband and wife together of the wives Dyer 72. Plow 373. 2 Wife barred by the fine of her husband or some other land or of the land of the husband and wife together be a perpetuall barre to her and her heires for ever yet if the husband alone levie a fine with Proclamations of such land and then he die in this case shee is not barred of her right but if she doe not make her claime c. within five yeares after her husbands death she is barred of her right for ever notwithstanding the Statute of 32 H. 8. a M. 18. Jac. Co. B. in Anne Twists case And if one seised of land in fee mary a wife and after make a lease of this land to A. for life the remainder to B. in fee and B levie a fine with Proclamations and the husband die and the wife doe not make her claime c. within five years after the death of her husband hereby she is barred of her dower for ever notwithstanding the estate for life in A. but if the remainder of B. had been put to a right at the time of the fine levied she might have avoided the fine by Plea Quod partes finis nihil habuerunt c. b Dyer 224. Co. 2. 93. And if the husband levy a fine of his owne land and die and his widow having no impediment doth not make her claime within five yeares after his death hereby she is barred of her dower for ever c Dyer 358. If a jointure be made to a woman after the coverture and her husband and she levie a fine of it hereby without question she is barred of her jointure in this land but it is thought that this is no barre of her dower in the residue of the land of the husband and especially then when the fine is Sur conusance de droit come ceo c. d Dyer 351. If lands be given to a man and his wife in taile the remainder to the right heires of the husband and the husband alone levie a fine of this this will not barre the wife except she suffer five years to passe after his death without making claime c. and therefore if the fine be to the use of the husband and his heirs in fee he may dispose it as a fee simple and his issue hath no remedy If a man disseise me of the land I have in fee simple or fee taile 3. Disseisee and the like barred by the fine of the disseisor c. Co. 9. 105. 3. 87. super Lit. 298. and after levie a fine of this land with Proclamations and I doe not make my claime c. within five years after the Proclamations had hereby I and my heires are barred for ever of this land And if I being such a tenant in fee make a lease for years or be the Lord of any Copyhold estate and my lessee for yeares or Copyholder in fee or for life be ousted and I thereby disseised and the disseisor levie a fine and neither I nor my lessee for yeares or Copyholder doe make any claime c. within the five years after the fine levied hereby we are all barred for ever And if one disseise me of land and after make a lease for life of it and then levie a fine with Proclamations and I suffer five yeares to passe hereby I am barred both of the reversion and of the estate for life also If tenant for life make a feoffment in fee and the feoffee levie Plow in Stowels case a fine with Proclamations and he in reversion or remainder doe not make his claime c. within five years hereby he is barred for ever If I pretend right or title to land and enter upon it and put him Co. 3. 79. out that is in possession and then I levie a fine with Proclamations with an intent to barre him and he doth not make his claime c. within five years hereby he is barred for ever albeit he had the true right and I no right at all If I purchase land of H. and after perceiving my title defeasible and that a stranger hath the right of the land I doe levie a fine Co. 3. 79. Doct. St. 83. 155. to or take a fine from another with Proclamations with intent and of purpose to barre him that hath right and he suffer five yeares to passe and doth not make his claime c. hereby hee is barred of his right for ever And in these and such like cases there is no reliefe Equitie to be had in equity See more in Numb 11. infra If there be tenant in taile the remainder in taile and the tenant 9. Where a Fine shall be a barre as to one person and not to another or as to one part of the land and not to another Co. 10. 95. 9. 106. in taile bargaine and sell the land by deed indented and inrolled and after levie a fine with Proclamations to the bargainee Sur Conusance de droit come ceo c. in this case as to the tenant in taile and his issue this is a barre but as to all others it is no barre albeit they never make any claime c. So if tenant in taile levie a fine of his intailed land this is a barre as to him and his issues but as to all others it is no barre at all and therefore he in remainder or reversion in their times may enter notwithstanding e Co. 9. 140. 142. So if lands be entailed to the husband and wife and the heires of their two bodies and the husband alone levie a fine of this land this as to the husband tenant in taile and his issues is a barre but not as to the wife for she shall be tenant in taile still and yet it seems she may not suffer Recoverie a recovery of this land afterward So if a man attainted of felony or treason levie a fine of his land this as to the King and Lord of whom the land is held is void and is no barre to their advantage and title of forfeiture but as to all others it is a good barre f 7 H. 4. 44. F. N. B. 98. Plow So if one levie a fine of Lands in Ancient demesne and of other lands together this as to the lands in Ancient demesne is not good nor any barre at all but as to the other lands it is a good barre By the ancient common law he that had right was bound to Co. super Lit. 254. 262 make claime c.
So if one give all his goods and chattels to his executor in his life time by deed of gift this shall be said to be fraudulent and shall be void as to Creditors And albeit those to whom the deed of fraud is made know nothing of the fraudy yet is the deed fraudulent in that case also as well as where they are privie to it If after a Commission of Bankrupts be sued out the debtor Co. 2. 25. make a deed of gift of all his goods to one of his Creditors in satisfaction of his debt in this case this deed shall be void as against the rest of the Creditors and as to the Commissioners and they may order it with the rest of the estate notwithstanding But if A bonâ fide and for valuable consideration mortgage his land By the two Judges of Assise Aug. 5. Car. in Com. South Lady Lamberts case whereof he hath a term of years to B upon condition that if he repay the mony to B a yeare after that he shall reenter and B doth covenant with A that he shall take the profits of it untill that time c. A doth not pay the money and B hoping that he will pay it in time doth suffer him to continue in possession and take the profits of it two or three years after and in the interim judgment is had against A upon a bond and execution awarded in this case execution shall not be made of this lease for this deed of mortgage shal not be said to be fraudulent as to the Creditor for when a conveyance is not fraudulent at the time of the making of it it shall never be said to be fraudulent for any matter ex post facto If A be seised of the fifth part of the Manor of B and B of the Mich. 19 Jac. Co. B. Miller Potscase 6th part and M cometh to A to buy his part and after M saith to A my Counsell tells me I cannot safely buy of you unlesse B joyn and after B doth grant a rent charge of 15l per annum out of this Manor to C her sonne and the heires of his body in consideration of naturall affection and this was about 1o. Jac. C being then but about three years old with proviso that if D whom B did then intend to mary grant to the said C the like rent of 15l and for the like estate out of 20l. land by the yeare of the land of B then the said grant to be void and after the said A bought the 6th part of the said Manor of B and D her husband being intermaried and after A B and D her husband joyne in the grant to M and in this case it was ruled that this grant to C was not fraudulent and void If one doth hold his land to pay a hariot Co. 10. 56 57. at the death of every one that dyeth tenant in fee simple and he infeoffe his sonne and heire in consideration of naturall affection and mariage to be had between the sonne and I and the son to prevent the Dower of his intended wife during his fathers life makes a lease for forty yeares unto his father if his father live so long and afterwards the mariage is had the father payeth the rent the sonne doth suit of Court for the land and after the father dieth in this case this lease shall not be said to be fraudulent as to the Lord to deceive him of his hariot because it was made to another Stat. 52 H. 3. c. 9. 34 H. 8. ch 5. Co. 6. 76. Lit. Bro. Sect. 59. Plow 49. Co. 8. 164. 9. 129. end A deed also made to defeate the King or other Lord of his 3. To deceive Lords of their wardships c wardship shall be void as to a third part of the thing conveyed And therefore if any tenant that holdeth of the King or any other Lord make a feoffment or other conveyance of his land to defeate and defraud the King or Lord of his wardship primer seisin or any other benefit appointed and preserved for the Lord by the Statutes of 32 and 34 H. 8. shall be void as to a third part thereof against the King or other Lord who shall notwithstanding have their wardship and other benefits as if none such were made As if such a tenant by deed enfeoffe his lineall or collaterall heire within age or make a lease for life the remainder to his heire or make a gift in taile the remainder in fee to his heire or make a feoffment on condition that he shall reinfeoffe his heire at his full age or make a feoffment for the paiment of his debts preferment of his wife and children or infeoffe another to the intent that he shall take the profits till he have an heire male and then to reinfeoffe him all these are fraudulent and void as to a third part of the land and as against the King or other Lord in respect of the benefit they are to have of and by the land But no conveyance in these cases shall be said to be fraudulent and so void for two parts of the land And if one make a feoffment of land to two whereof his heire is one and their heires for mony or other valuable consideration this shall not be said to be a fraudulent conveyance of any part So if such a joyntenant make a feoffment of his moity to a stranger * Dyer 9. Co. 2. 94. And in cases where the feoffment is fraudulent for a third part as before if the feoffee dye or make a feoffment over bonâ fide before the death of the Ancestor in these cases the deed is become good again and the collusion gone If a Dyer 268. Co. 10. 57. man for feare of debts convey his lands to friends with condition that upon payment of 10l they shall convey it to those whom he shall appoint in this case the conveyance shall not be said to be fraudulent as to the King or other Lord for it was done to another end and therefore it is a good conveyance against all men but the Creditors Where deeds shall be void in part or in all for want of inrollment atturnement livery of seisin or the like see afterwards If a deed that is well and sufficiently made in his Creation shall Co. 11. 27. 5. 119. Dyer 59. 261. Perk. Sect. 123. 135. Kelw. 162. Fitz. Release 27. 14 H. 8. 25. Bro. Fait 9. 6 Where a deed good in his creation may become void by matter ex post facto And what will make such a deed void or not 1. By Rasure be afterwards altered by rasure interlining addition drawing a line through the words though they be still legible or by writing new letters upon the old in any materiall place or part of it as if it be in a deed of grant in the name of the grantor grantee or in the thing granted or in the limitation of
passe it one way or another Experientia there it may be good either way as where one doth make a feoffement in fee with a letter of Atturney to make livery and in the same deed doth covenant in case livery of seisin be not had to perfect the deed to stand seised to the uses of the feoffement in this case albeit no livery of seisin be made or atturnement had to perfect the feoffement or grant yet if it be in such a case where there is a consideration sufficient to raise the uses by the covenant the uses will arise by the covenant 3. When a deed may enure to divers purposes he to whom the deed is made shall have election which Co. super Lit. 301. Dier 251. way to take it and he may take it that way as shall be most for his advantage As if a deed of grant be made by the words Dedi concessi this in law may amount to a grant feoffement gift lease release confirmation or surrender and it is in the choise of the grantee to plead or use it the one way or the other So if a lease for Co. 2. 36. Dier 30. 302. years be made to me of land for mony by the words demise grant bargain and sell I may take and use this by way of bargain and â—ale or by way of demise at my pleasure So if one have a rent out Dier 109. 319. of land whereof I and my wife are jointly seised and he doth by his deed release give and grant this rent to me in this case I may use this as a release to extinguish the rent or as a grant of the rent as it may make most for my advantage Et sic de similibus But where any inconvenience may grow by such an election there the grantee shall not have an election but it shal enure as it may as where a man may passe land by the common law or by raising of use and setling Co. 2. 35 36. it by the Statute there sometimes it is so And therefore if in the same case before a father make a Charter of feoffement to his sonne and a letter of atturney to make livery and no livery is made hereby no use will arise to the sonne as it will in case of a covenant And if a lease for years be made of a Manor by the words bargaine sell demise and grant and this is to begin at a day to come in this case it must passe entirely as a demise at the common law or entirely as a bargaine and sale and the lessee hath not election to take or use it otherwise or to use it for part one way and for part another way 4. It shall enure as much as may be according to the apparent intent Finches law 58. of the parties And therefore it is that if a feoffement be made of a Manor with an advowson appendant or a bargaine and sale of land in possession and land in reversion together be made and the feoffement is not well executed for want of livery of Seisin or Atturnement or the deed of bargaine and sale is not inrolled in these cases albeit the advowson may passe without livery or atturnement and the reversion without inrolment yet because the intent doth appeare to be that all shall passe together therefore neither the advowson nor the reversion will passe by this deed 5. When a deed is made it shall enure as it may and so as it may have and take Plow 140. 59. Co. super Lit. 30â— the most and best effect that may be according to reason as if tenant for life or years and he in remainder or reversion in fee joine in a feoffement by deed this shall enure in the first case as the lease of the tenant for life and the confirmation of him in the remainder or reversion and in the last case as the feoffement of him in the reversion c. and the surrender of the lessee for years to the feoffee and and no forfeiture of the estate in the lessee for life But if in this case the feoffement be by word it seemes it shall enure first as a surrender of the estate of the tenant for life and then the feoffement of him in reversion ut res valeat And if A be tenant for life the remainder to B for life the remainder to D in taile the remainder to the right heirs of B and A and B joine in a feoffement by deed in this case this is the feoffement of A and confirmation of B but a forfeiture of both their estates whereof the tenant in taile may take present advantage If tenant for life grant a rent charge to him in Co. 5 15. Forfeiture reversion in â—ee and he by his deed doth grant this rent over to another and his heires this is a good grant and confirmation also to make the rent passe to the second grantee in fee simple So if a disseisor make a lease for life the remainder to the disseisee and the dissee doth grant the remainder over this is a good grant and confirmation also If A doe bargaine and sell his land to B by indenture Co. super Lit 147. and before inrolment they doe both grant a rent charge to C by deed and after the indenture is inrolled in this case after the inrolment this shall be said to be the grant of B and the confirmation of A and if the deed be not inrolled it shall be said to be the grant of A and confirmation of B. If one make a Charter of feoffement Co. super Lit. 21. of one acre of land to A and his heires and another deed of the same acre to A and the heires of his body and deliver seisin according to the forme and effect of both deeds it seemes this shall enure by moities viz. he shall have an estate taile in the one moity with the fee simple expectant and a fee simple in the other moity If Co. super Lit. 45. two severall tenants of severall lands joine in a lease for years by deed indented these be severall leases and severall confirmations from each of them from whom no interest passeth and doth not worke by way of Estoppell If B tenant for life of C and he in remainder Estoppell or reversion in fee of the same land joine in a lease for life or years by deed indented this shall enure during the life of C as the lease of B and the confirmation of him in reversion or remainder and after the death of C as the lease of him in reversion or remainder and the confirmation of B without any Estoppell If tenant in taile and he in reversion grant a rent charge in fee it shall bee taken the grant of the tenant in taile and the confirmation of him in reversion but when the tenant in taile diâ—th without issue it shall be taken the sole grant of him
any estate in this case I S hath an estate for life only If lands be granted to A and B to have and to hold to them Dier 186. for their lives to the use of C for his life by this C hath an estate for his life if A and B live so long If a tenant in taile grant totum statum suum by this the grantee Lit. Sect. 613. Co. 1. 53. super Lit. 345. Plow 562. 162. Co. super Lit. 24. hath an estate for the life of the grantor and no longer And if a lessee for life grant all his estate hereby his estate for life doth passe for this is as much as he can lawfully grant If a man have a sonne and a daughter and die and lands be granted to the daughter and the heires females of the body of the father it seemes by this she hath only an estate for life If one grant land to another to have and to hold to her whiles Co. super Lit. 42. 234 235. she shall live sole or during her widowhood or so long as she shall behave her selfe well or so long as he shall dwell in such a house or so long as she pay 10 l. yearly or so long as the coverture between her and her husband shall continue or one grant lands to a man to have and to hold unto him untill he shall be promoted to a Benefice or the like in all these cases if livery of seisin be made according to the deed or if the grant be of such a thing whereof no livery is requisite the grantee hath an estate for his life and no more and that determinable also If one grant lands to I S. to have and to hold to him for life Co. super Lit. 183. 42. Plow 161. F. N. B. 168. and doth not say for whose life this regularly shall be taken for the life of I S the lessee and not for the life of the lessor But if the lessor himselfe have but an estate for life in the lands granted then the lease shall be construed to be and endure during that life only by which the lessor did hold to prevent a forfeiture And if he that doth make the lease be tenant in taile of the land this shall be taken to be a lease for the life of the lessor And if a tenant for life of land make a lease for years of it and then grant his reversion by the name of a reversion to another To have and to hold to him and his heires by this he hath only an estate for the life of the grantor and no more So if tenant in taile of land grant it to one for years and after grant his reversion to another To have and to hold to him and his heires this shall be construed to be an estate for the life of the tenant in taile and no longer and the atturnement of the tenants in these cases will not alter the cases And so it is in case of a Release also as if tenant in taile doth release to B being lessee for years of the land all his right to the land this shall be taken to enure but for the life of the tenant in taile and no longer as if a man retaine a servant and say not how long this shall be taken for a year Constructio legis non facit injuriam If one grant to I S that if he be not paid yearly for his life Co. super Lit. 147. Co. 8. 85. 40 s. that he shall distraine in the land of the grantor for it by this I S hath an estate for life in the rent And if a man by his deed grant a rent of 10 l. issuing out of all his land quarterly at the usuall feasts this is an estate for life of the grantee If one grant lands to I S and I D. To have and to hold to them Co. 5. 9. 11. 3. during their lives omitting these words and the longest liver of them by this notwithstanding they shall hold it during the life of the longest liver of them And if lands be granted to A To have and to hold to him during the lives of B C and D without any more words by this A hath an estate during all their lives and during the life of the longest liver of them * 38 Eliz. B. R. in the case of Ros Adwick And if lands be granted to A To have and to hold to him during his life and during the lives of B and C by this he hath a lease for his owne life and the lives of B and C and the longest liver of them But if a lease be made to I S of land to have and to hold to him during the time that A and B shall be Justices of Peace or during the time that A and B shall be of the Inner Temple or the like in these cases the â—ailer of one doth determine the estate †Adjudged B. R. 8 Eliz. Hobaâ—t Wisemores case And if a lease be made to B only To have and to hold to him and C for their lives by this B hath an estate for his owne life only and no more and C hath nothing at all And here by the way let it be observed in these and such like cases where lands are granted to one man to Co. super Lit. 41. 239. 388. Plow 556. 28. Dier 328. 321. 264. Co. 10. 98. Occupant have and to hold to him or to him and his assignes or to him his executors administrators and assignes during the life or during the lives of others and in most cases where a man is tenant pur auter vie i. for the life or lives of another or others if the tenant pur auter vie in possession die his estate shall not goe to his heires executors or administrators unlesse they can first get into possession after his death but he that can first get into the possession of the land after the death of the tenant pur auter vie shall have it for his life and after his death then he that can first get into the possession againe c. And therefore if the land were let by the tenant pur auter vie at the time of his death to any under tenant for years or for one year or at will and this undertenant be in possession at the time of the death of the tenant pur auter vie this undertenant shall have it for his life if the life or lives by which it is held so long live for the rule in this case is occupanti conceditur Et capiat qui capere potest And this estate is called an occupancy and he that hath it an occupant To prevent which mischiefe the lessee must take care when he takes his lease to have it made to him and his heires during the life or lives of him or them by whom it is held for in this case after his death his heire and none other shall
rent out of the land generally without any limitation this shall be construed to enure for a grant of the rent so long as the estate of the grantor doth continue But if he grant a rent by expresse words for the life of the grantee by this the grantee shall have it for all the terme if he live so long If one grant lands to I S To have and to hold to him for life Co. super Lit. 218. reserving the first seven years a rose and if he will hold the land over that he shall pay a rent in money and no livery of seisin is made by this it seemes in certaine is made a lease for seven years untill the Condition be performed and then also it seemes it is a lease for no longer time And so perhaps it will be if livery of seisin be made If one grant a rent of 5 l. per annum unto I S To have and to Co. super Lit. 42. Plow 273. hold to him c. untill he shall receive 20 l. in this case he shall have a lease for foure years of this rent But if lands be granted to I S To have and to hold c. untill he shall receive 20 l. out of the profits of it in this case if livery of seisin be made the grantee hath an estate determinable upon the levying of the money and if no livery be made he hath no estate at all but at will If one make a lease for life and say that if the lessee within one Co. super Lit. 218. yeare pay not 20 s. that he shall have but a term for 2. years by this if he doth not pay the money he hath only a lease for 2. years albeit livery of seisin be made upon it If one make a lease to I S To have and to hold to him his executors Co. 9. 63. 60. c. for 10. years if I D shall live so long and I D is dead at the time when the lease is made in this case I S hath an absolute lease for 10. years If one grant lands to I S To have and to hold to him his executors Plow 273. Co. super Lit. 45. Dier 24. c. for 3. years and so from 3. years to 3. years during the life of I S or from 3. years to 3. years during the life of the lessee by this it seemes I S hath a lease for 6. years and no more And if one grant lands to I S To hold for 3. years and after the end of those 3. years for 3. other years and after the end of those 3. years for 3. other years during the life of the lessor by this it seemes I S hath a lease for 9. years and no more And yet if in these and such like cases where a lease is made from so many years to so many for the life of any person livery of seisin be made upon this deed secundum formam chartae this perhaps may be an estate for life If lands be granted To have and to hold from our Lady day pro termino unius Anni sic de uno Anno in unum Annum quamdiu 14 H. 8. 10. Co. 6. 35. 10. 106. ambabus partibus placuerit by this the grantee hath a lease for 3. years only in certain and afterwards a lease at will And if lands be granted to have and to hold from the Nativity of Christ next pro termino unius Anni et si in fine dict' unius Anni ambae partes placerent quod eadem presens dimissio foret renovata tunc habend premissa to the lessee c. ab post dictum festum Nativitatis Domini usque terminum trium Annorum extunc prox ' sequen ' by this the grantee hath a lease in certaine but for one year only and if the parties agree againe a lease for 3. years If one make a lease to I S To have and to hold to him for years Co. 6. 35. 21. H. 7. 38. and say not how many years by this the lessee hath a lease for 2. years and no more If one grant his land to I S To have and to hold to him untill Co. 3. 19. I D shall come to 21. years of age in this case if I D die before that time the lease is ended If a man possessed of a terme of years of land doth grant the land to another and his heirs this by construction will amoumt Co. 1. 44. 7 H. 4. 42. to a good grant of his interest If lands be granted to husband and wife and to I S To have Limitation of estates to divers persons Dier 263. and to hold to them and to the heires of the husband and I S by this the wife hath only an estate for life in a moity w th her husband and the husband and I S have the feesimple in Jointenancy to them and their heires Co. 8. 87. 10. 50. super Lit. â—5 Dier 145. If lands be granted to two brothers or two Sisters or to a brother or sister or to a father and sonne or any others To have and to hold to them and the heires of their bodies begotten by this they have joint estates for their lives so that the survivor of them will have the whole for his life and severall inheritances i. estates in generall taile by moities in common one with another And if lands be granted to two men and their wives and the heires of their bodies begotten in this case they have joint estates for life and afterwards the one husband and wife shall have the one moity and the other the other moity in common And and if lands be granted to a man and two women To have and to hold to them and the heires of their bodies by this they have each of them an estate taile in common with the other If lands be granted to husband and wife To have and to hold Lit. Sect. 27 28 29. Co. super Lit. 26. Dier 340. Co. 1. 100. to them and their heirs of their bodies issuing or in any such like manner by this the wife hath an estate taile as farre forth as the husband But if it be granted to them To have and to hold to them and the heires of the body of the husband or to the husband and wife and the heires of the husband which he shall have by his wife or in any such like manner by this the wife hath only an estate for life and the whole estate taile is in the husband So via versa if lands be granted to husband and wife and the heires of the wife upon her body begotten by the husband by this he hath an estate for his life only and his wife the whole estate taile And if lands be granted to the husband To have and to hold to him and the heires of his body on the body of his wife begotten or To have and to hold to him and
the heires of his body begotten on the wife he shall first mary or To have and to hold to him and his wife he shall first mary and the heirs of their bodies begotten in these cases the husbands have the whole estate and the wives nothing at all But Use otherwise it is it seemes when the estate is limited by way of use to a man and his wife that he shall afterwards mary for by this it seemes the wife shall take also If lands be granted to A a maried man and to S a maried wife 15 H. 7. 10. and to the heirs of their bodies engendred by this they have each of them an estate taile presently executed and whiles the wife of the husband and the husband of the wife live they shall hold it for their lives and if they happen to die and these to intermary and have issues their issues shall have it according to the intaile If lands be granted to A and B To have and to hold to A for Dier 126. 56. When the Habendum shall be said to be repugnant and void And when not but shall controll divide or expound the premisses life the remainder to B in fee by this A shall have the whole for his life and B the feesimple afterwards As touching this matter these differences are to be taken Co. 2. 23. 8. 56. Perk. Sect. 181. 14 H 8. 14. Co. super Lit. 183. Between things that are granted and between the estates When the things that are granted are such as lye in grant and take effect by the delivery of the deed only without any ceremony or take effect by the same ceremonie and when not but another ceremony is required to the perfection of the grant and estate And when there is an expresse estate made by the deed in the Premisses thereof and when but an implied estate only as for examples If one grant land rent common or any such like thing to one and his heires by the Premisses of the deed To have and to hold to him for life or To have and to hold to him and to his assignes without more words in this case the Habendum is repugnant and void and by this the grantee shall have an estate in feesimple if livery of seisin and atturnment as the case doth require be duly made for otherwise no estate at all but at will will passe So if a man grant a rent or any such like thing that lieth in grant to one and his heires To have and to hold to him for years this is a void Habendum and the grantee shall have the feesimple But if a man grant land to another and his heires To have and to hold to him for a certaine number of years in this case whether he make livery of seisin or not it is a good Habendum and by this the grantee shall have an estate for so many years and no more So if one grant land rent common or any such like thing to one in the Premisses of the deed without limitation of estate which in judgement of law is an implied estate for life To have and to hold to him for a certain number of years or at will this Habendum is good and shall stand with the Premisses and qualifie it and by this the grantee shall have but a lease for years or at will as the Habendum is And if one grant land by the Premisses Co. 8. 154. 21 H. 6. 7. Co. super Lit. 20. Dier 126. per curiam in Thurmans case Pasc 16 Jac. B. R. 21 H. 6. 7. of a deed to one and his heires of his body To have and to hold to him and his heires this Habendum shall stand and this shall be taken an estate taile and a feesimple expectant So vice versa If land be granted to one and his heires To have and to hold to him and his heirs of his body this shall be construed an estate taile and a feesimple expectant and so both shall stand together If lands be given to B and his heirs To have and to hold to B and his heires and if he die without heires of his body that it shall Co. super Lit. 21. revert to the donor it seemes this is a feetaile only and no feesimple expectant Voluntas donatoris in carta doni sui manifeste expressa observanda est If a lease for years be made of land and then the lessor by the premisses of the deed granteth the land to another To have and to Co. 10. 107. 108. hold the reversion of the land to him c. for life this Habendum shall stand So if by the Premisses of the deed the reversion be granted To have and to hold the land it selfe this is good and both shall stand together but nothing is granted in either case but the reversion If the next Advowson of a Church be granted to three To have Dier 304. Co. 5. 19. to hold to them and either of them jointly and severally this is joint and the Habendum is void * Co. 2. 55. And yet if one grant land to two by the Premisses of the deed To have and to hold to one of them for Super Lit. 183. Dier 106. life the remainder to the other for life this is not repugnant but shall stand together and make the estates severall and in remainder one after another So if a lease be made to two To have and to hold the one moity to the one and the other moity to the other by this they have severall estates Expressum facit semper cessare tacitum If a man have a lease for years of land and he reciting this by Dier 272. Plow 520. the Premisses of the deed doth grant all his estate in the land To have and to hold the land or the terme after his death or for part of the time only in this case the Habendum is void and the whole estate doth passe immediatly by the premisses If a tenant for life surrender a moity of his land and the lessor Dier 256. grant it all to a stranger To have and to hold the one moity for life and the other moity for 40. years after the death of the tenant for life this Habendum shall stand and enure according to the grant If a man seised of land in fee make a lease for life of it to one Curia pas 7 Jac. Co. B. and after grant the reversion of it to another To have and to hold the reversion and the tenements aforesaid cum post mortem forisfact ' c. vacare acciderit in this case the Habendum and premisses may stand together It is usuall in the Habendum of a deed to set down to what use the party to whom the deed is made shal have the thing granted But touching this and the matters that doe concern uses see Vse infra at large And see also more for the Exposition of Deeds
in Testaments Numb 8. Grant Numb 4. Leases cap. 14. Numb 4. And here note that parol-agreements and conveyances Note have the same construction for the most part made upon them as are made before upon deeds And therefore if a man by word of mouth without any writing grant all his lands in Dale to I S To have and to hold to him for life but doth not say for whose life this shall have the same construction as such a grant made in writing hath This is alwaies taken most in advantage of the feoffee grantee Co. 5. 111. 10. 106. 8. 71 Co. super Lit. 47. 213 214. lessee c. and against the feoffor grantor lessor c. and yet so as In the reservation of rent And how that shall be taken the rent be paid during the time And therefore if the reservation be only to the feoffor grantor c. and the deed doe not say also to his heires executors c. this reservation shall continue only for the life time of the grantor and shall determine with his death And so also it is where the reservation is to the feoffor or his heires in the disjunctive for in this case the rent shall continue only during the life of the grantor And yet if one make a lease for years rendring yearly during the said terme to the lessor or his heirs or executors this is a good reservation during all the terme by reason of these words during the terme So if the feoffor or lessor be seised in fee and make a feoffement in fee or lease for life or years rendring rent to the feoffor or lessor or his executors or assignes in Plow 171. 21 H. 7. 25. 27 H. 8. 19. Dier 45. this case the rent shall continue only for the life of the lessor But if the reservation be to the feoffor or lessor his heires and assignes in the copulative or in the disjunctive to him or his heires or to him and his successors if it be the lease of a Corporation during the terme then all the assignees of the reversion shall enjoy it And if the reservation be thus yeelding and paying so much rent without any more words this shall be taken for all the time of the estate and shall goe to him in reversion accordingly And if the reservation be rendring so much rent during the said terme and doth not say to whom in this case it shall be construed to be to him that hath the reversion and accordingly it shall be paid and shall continue during the term * So held in the case of Bland M. 8 Car. B. R. But if A be seised of land in fee and make a lease for years of it rendring rent to A without saying To his heires c. during the said terme this rent shall continue only during the life of A and no longer And yet if A be possessed of a terme only and make an under-lease or assignement with such a reservation Quere If the reservation be thus Yeelding and paying 20 s. during the said 27 H. 8. 19. terme omiting the word yearly this shall be taken to be not once only but yearly during the terme and accordingly it must be paid f Pas 21 Jac. Hudson Brent B. R. And if a lease be made for years rendring in every middle of the yeare quolibet medio Anni 20l. this shall be paid during the term If one by deed indented grant lands to A To have and to hold Co. 10. 107. to him for life the remainder to B and the heires of his body and for default of such issue to remaine to D in taile or for life yeelding therefore yearly c. in this case the reservation shall extend to all the estates If a lease be made the 10th day of August rendring rent at our Dier 130. Co. 5. 111. super Lit. 217. Lady day and Michaelmas in this case albeit our Lady day be first named yet the first payment shall be at Michaelmas next after the making of the deed If the reservation be at Michaelmas or within 20 daies after in Per Williams Yelverton Iust Ch. Iust contra 9 Jac. B. R. this case the 20th day shall be taken exclusive But if the rent be to paid at Michaelmas or by the space of 20. daies after in this case the 20th day shall be taken inclusive If a lease be made in December from the Nativity of Christ next for one yeare with this addition Et si in fine dicti Anni ambae partes Co. 10. 106. agrearent quod eadem dimissio foret renovata tunc habend tenend premissa dicto I S the lessee ab post dictum festum tunc proxim sequend usque finem trium Annorum Reddendo inde Annuatim durante dicto termino dict W S. c. in this case the reservation shall relate to both the terms and the rent shall be paid the first yeare although they doe not agree to renew the lease If two Jointenants by deed poll or by word make a lease for Co. super Lit. 214. life reserving a rent to one of them this shall goe to them both So if one of them be tenant for life and the other in fee and they joine in a lease for life or gift in taile reserving a rent the rent shall enure to them both But if tenant for life and he in reversion joine in a lease for life or gift in taile by deed reserving a rent the rent shall enure to the tenant for life only during his life and after to him in reversion If two tenants in common make a lease of their land rendring Plow 171. 289. Co. 10. 106. 20 s. rent this shall be but one 20 s. and not two 20 s. So if the lease be rendring a Hawke or a Horse by this they shall have but one Hawke and one Horse and not two Hawkes or two Horses as it shall be in cases where they doe joine in the grant of such things out of their land If one make a gift in taile of two acres of land the one at the Co. 10. 106. cōmon law the other in Burrow English rendring an oxe to him and his heires and the donee having two sonnes die and the eldest sonne doth inherite the one acre and the youngest sonne doth inherite the other in this case the donor and his heires shall have but one oxe c. If one make a lease of land for years if the lessee live so long Co. 10. 107 108. and after the lessor by his deed indented doth grant the land to another To have and to hold the reversion to the grantee for his life cum post mortem c. aut aliter acciderit vacare reddend inde Annuatim to the grantor and his heires cum reversio predicta acciderit 9 s. 4 d. per Annum in this case this reservation of rent shall not begin before the reversion
use of B and his heires on condition that B shall pay to the feoffor twenty pound such a day this is a good condition So if one covenant to stand seised of lands to the use of B and his heirs on condition that if he pay him tenne pound the use shall be void or the like Also a condition may be Dier 1â—6 348. annexed to an estate created by Will as if one devise land to I S for his life Provided that he pay ten pound yearly to I D this is a good condition Whereof see in Testament A rent or any such like thing may be granted on condition that Co. 8. 17. 24 â—d 3. 29. if such a thing bee or bee not done the rent shall cease for a time and then revive again and this condition is good But in case of land it is otherwise for that cannot bee granted after this manner Also a condition to make an estate void for a part of the time is not good And therefore if a feoffment bee on condition that upon Co. 1. 86. Perk. Sect. 718. Co. 4. 121. Dier 6 such a contingent the feoffor shall enter and have the land for a time or the estate shall be void for a part of the time or make a lease for ten years provided that upon such a contingent it shall be void for five years these conditions are not good And yet if a feoffment bee made of two acres provided that upon such a contingent the estate shall bee void as to one acre onely this is a good condition A condition that a stranger or the heir of the feoffor shall doe Co. super Litt. 214. Doct. Stud. 94. 159. 100. Co. super Litt. 379. Co. 1. 84. Dier 33. 21 H. 7. 11. Dier 4. Co. 8. 95. an act is good as if a feoffment be made to I S on condition that I D shall pay to the feoffor ten pound at Easter next or if a feoffment be made on condition that if the heir of the feoffor pay twenty shillings to the feoffee that the feoffor and his heirs shall reenter But a condition to give a stranger a reentry is void so farre forth And therefore if an estate bee made upon condition that upon such a contingent a stranger shall enter or the estate shall cease and another shall have it howsoever this may be so drawne as it may be a good condition to give him his heirs c. that doth make the estate an entry yet it cannot be good to give the estate or the entry to the stranger So if a feoffment be made on condition that upon such a contingent the feoffor and a stranger shall enter this is not good to give an entry to the stranger but it is good to give the feoffor a reentry And yet by will a man may devise a terme after this manner If a man enfeoffe another upon condition that he and his heires Co. super Litt. 213. shall render to a stranger and his heires a yearely rent of twenty shillings c. and if hee faile of payment thereof that the feoffor shall reenter albeit this as a reservation of rent is meerely void and the condition that doth call it a rent is meerly mistaken yet the condition is good and ut res valeat the words shall be taken contrary to their proper sense If I enfeoffe I S of land on condition that if I D give to him ten Perk. Sect. 798. pound or goe to Rome before such a day c. that then the feoffee shall pay to me ten pound c. this is a good condition If a feoffment be made to one and his heirs on condition that if Co. super Litt. 207. the feoffee pay to the feoffor ten pound hee shall have the fee of land this is not a good condition But if he say further And if he fail to pay that the feoffor shall reenter this is good If a gift in tail be made to a man and the heirs of his body and Co. super Litt. 224. if he die without heirs of his body that then the donor and his heirs shall reenter this is a void condition for when the issues fail the estate is at an end Conditions that are so penned as they are insensible and altogether Muddy Gardners case Adjudge pasche 14. Jac. B. R. Co. 6. 41. incertain are void as if one make a lease on condition that if the rent be behinde to restrain and if there bee not sufficient the ground to enter into the premisses this condition is void for insensibility and the estate is absolute Et sic de similibus A condition to enlarge or encrease an estate may be good as if Co. 8. 75. Plow 477. 481. Litt. Sect. 350. Perk. Sect. 710. Plow 135. 10 Ass pl. 15. Perk. Sect. 745. 707. Plow 25. Litt. Sect. 707. 350. Plow 272 482 483. 4 H. 7. 4. See more in the Lord Staffords case Co. 8. 73. To enlarge an estate a gift be made in tail or a lease be made for life or years on condition that if such an act be done or not done the lessee shall have the land to him and his heirs as if one make a lease for life to one and if the lessor die without heir of his body then he doth grant the land to the lessee and his heirs for ever Or if land be granted to a man for 5 years on condition that if the grantee pay to the grantor within the two first years ten pound then that he shall have the â—eesimple otherwise that he shall have the land but for five years and livery of seisin be made according to the deed this is a good condition and by this upon the performance of the condition the feesimple will passe So if one grant land for five years rendring rent and that if the lessee will hold it over to him and his heirs that he shall pay twenty pound rent this is a good condition and if be pay the rent he shall have the feesimple So if a man make a lease for years and at the same time for the surety of the terme to the lessee makes a feoffment to him upon condition that if he be disturbed in his term he shall have the feesimple of the land and deliver both these deeds at one time and give livery of seisin accordingly this is a good condition So if a lease for life be made upon condition that if the lessor or his heirs pay to B or his heirs ten pound at a certain day that then the lessor may reenter and if he doe not pay it at that time and the lessee pay to the lessor or his heirs ten pound at a certain day after the former day that then the lessee shall have the land to him and his heirs for ever this is a good condition But in all cases where these kind of conditions are good to make the increased estate good there
estate as To give goods the Annuity is otherwise the grantee may refuse it and yet his Annuity shall continue If a feoffment be made on condition that the feoffee shall give all Perk. Sect. 742. his goods si quae fuerint or give al his Pikes in his pond si quae fuerint in this case the words shall be taken in the present tense for the goods and Pikes that are at the time of the grant But if a feoffement be oâ— condition that the feoffee shall give all his goods in London si quae fuerint that did belong to I S in this case the words shall be taken in the preterperfect tense If one make a lease of the Manor of Dale wherein is a wood Haward Fulchers case Hâ—â— 3. Car. B. R. Not to disturb the lessor in taking the wood called Dale wood excepting all the woods and underwoods growing in Dale wood and all the great trees growing elsewhere and this is upon condition that if the lessee shall disturbe the lessor to cut and sell the wood and underwood excepted the lease to be void in this case it seemes the condition shall extend only to the wood and underwood in Dale wood and not to the trees elsewhere but if the words of the condition be shall disturbe c. to cut c. the wood and underwood on the premisses contra If one grant land rendring rent at the Feasts of S. Michaell and Dier 142. To pay rent our Lady day or within a moneth after on condition that if it be behind after the Feasts and daâ—es limited by the space of eight weekes that the lease shall be void in this case the eight weekes shall be accounted from the moneth which is the twenty eight day after the Feast If the condition be made in the copulative and consist of divers 12 H. 7. 10. Co. super Lit. 225. Perk. Sect. 746. Dier 337. 372 parts every part must be observed or the condition will not be performed But when it is made in the disjunctive if any part of it be observed it is a sufficient performance of the condition And therefore if a feoffement be made on condition to reinfeoffe and pay twenty pound and the feoffee do reinfeoffe but not pay the twenty pound in this case the condition is broken But if the condition be to reinfeoffe or pay twenty pound and the feoffee doe one of them it is a good performance of the condition And when it is made in the copulative and disjunctive both it shall be taken in the disjunctive only as if a lease be made to A and B his wife on condition that the said A and B or any child between them shall so long live this shall be taken in this sense if the husband wife or child shall so long live so that the lease shall not be determined by the death of the husband or wife alone If there be two provisoes in two severall indentures of conveyance of severall Manors to A and B that if the feoffor pay or tender twenty shillings to A and B or the heires of A that the Conveyance shall be void and A die in this case tender to B is not sufficient and it must be made to the heire of A and it must be twenty shillings for every proviso but otherwise it is of a collaterall act If the words of a condition be thus that upon such a contingent Co. 3. 64. super Lit. 203 204. Dier 6. 127. 11 H. 7. 21. the party shall enter and retaine the land untill the thing be done c. in this case and by these words the estate is not determined as it is by these words that the estate shall be void or that the grantor shal râ—enter or the like And in these words there is a difference also to be observed for if the words be that upon such a contingent the estate shall cease and be void and it be a lease for years to which the condition is annexed the estate is ipso facto void without entry or claime and can never be affirmed afterwards but if the words of the close of the condition be that the feoffor lessor c. shall reenter without any other words albeit it be in a lease for years yet the lease is not void untill he hath made an actuall reentry But in both cases if the estate to be avoided be an estate in â—ee or for life it is only voidable by the breach of the conditiâ—â— and must be made void by entry or claime and untill this be â—one the grantor can make no new estate of the land But in the first case before the party shall retaine the land and take the profits of it in the nature of a pledge untill the thing be done agreed upon in the condition and then the other party shall have the land againe See more in the next questions And in Obligation Numb 7. Covenant Numb 6. 9. When and how a Condition or Limitation shall be said to be performed Or not 1. When the act is to be done be tween the parties themselves To make an estate The words of a condition may be performed and not the intent Co. 8. 90. Lit. Sect. 352. Co. 3. 64. 282 2 H. 4. 11. and the intent may be performed and not the words and then for the most part a condition is performed when the intent and meaning of it is observed And therefore if a feoffement be made on condition that the feoffee or his heires shall make an estate to the feoffor and his wiâ—e in taile before such a day and before the day the husband die and then he make an estate as neere it as he may viz. to the wife for life without impeachment of wast and after to the heires of the body of the husband this is a good performance of the condition And if the condition be that the grantee Co. super Lit. 207. shall make a feoffement of land and he make a lease of the land first and then a release to the lessee and his heirs this is tantamount and a good performance of the condition If a feoffement be made on condition that if the feoffor or his Co. super Lit. 222. Perk. Sect. 802 803. heires pay tenne pound by a day the feoffement to be void and the To pay money feoffor before the day doth commit treason and is executed and so dieth without heire and after before the day the heire is restored and he at the day doth pay the money in this case this is a good performance notwithstanding there was once a disability So as if heretofore one had made a feoffement on condition to reinfeoffe by a day and before the day the feoffee had entred into Religion and then had been dearaigned and at the day had made the feoffement this had been a good performance of the condition If a feoffement be made upon condition that
yet it seems it doth not restrain the power that the lessee hath by the law to take these things without assignement But if the lessee doe covenant that he will not cut any timber or fuell without the leave or without the assignement of the lessor this is a good covenant and doth restrain him for in this and such like cases the rules is Modus conventio vincunt legem If an obligee covenant with the obligor that he will not sue him Mich. 36 37 Eliz. Co. B. Adjudge Deaux versus Jefferies 21 H. 7. 23. Release upon the obligation untill Easter following this is a good covenant but no release or suspension of the debt * Perk. Sect. 69. If there be Lord and tenant of three acres of land white acre and two others and the Lord grant to the tenant by deed that he will not distrain in white acre for his rent or services this is a good covenant but doth not determine the Seigniory If one man grant a mill within his Manor covenant for him Fitz. Covenant 5. his heirs that there shall be no other mill set up within the Manor it seems this is a good covenant If one make a lease wherein are divers covenants to bee performed Fitz. Covenant 3. on the part of the lessee and after the lessee doth covenant that if any of the covenants be broken that the lessor shall enter upon the land demised and hold it untill the lessee make him amends for the damage done by the breach of the covenant it seems this is a good covenant and that the lessor may take advantage thereof accordingly If a man seised of land in fee covenant to stand seised of it to uses Plow 307 308. 21 H. 7. 18. 27 H. 8. 16. Finchesley 49. and no estate doth rise by the covenant yet this may bee good by way of covenant and give remedy to the covenantee in an action of covenant But with this difference If the covenant be future as where one doth covenant with another that in consideration of a mariage his lands shall descend remain or revert to his sonne and heire apparent and to the heires of his body on the body of his wife in this case the covenantee may have a writ of Covenant upon the covenant For if a covenant be present as that a man and his heirs shall from henceforth stand and bee seised to such and such uses and the uses will not arise by the Law in the case in this case no action of covenant will lie upon this covenant for this action will never lie upon any covenant but upon such a covenant as is either to doe a thing hereafter or that a thing is or hath heretofore beene done and not when it is for a thing present as when A doth covenant with B that his blacke horse shall be for ever after the horse of B this is no good covenant to give the horse to B or to give him an action of covenant for him but A may keep him still notwithstanding If one mortgage upon condition to reenter upon payment of an Agree 8. Car. hundred pound at a day and the mortgagee doth covenant that he will not take the profits of the land untill default of payment this is a good covenant and the mortgagee therefore may not meddle with the profits untill the day of payment come If one make a lease for years of land by the words Demise or 5. What shall be said a good covenant in Law upon which an action of covenant may be had And what not Co. 4. 80. 5. 17. Trin. 3 Jac. B. R. Stiles case Pas 7 Jac. B. R. Winsecombes case Grant and there is not contained in the lease any expresse covenant for the quiet enjoying of the land in this case the Law doth supply a covenant for the quiet enjoying of it against the lessor and all that come in under him by title during the Term and upon this the lessee his executors administrators or assignes may have an action of covenant if he be disturbed But where there is an expresse covenant in the deed for the quiet enjoying of the land there the Law will not make this implied covenant Expressum facit cessare tacitum And therefore herein this is not like to the case Warranty where a man doth make a lease for life by the words of Dedi concessi or make a lease for life by other words reserving rent in which cases the law doth create a warranty against all men during the life of the lessor for if in these cases there be an expresse warranty in the deed yet this doth not take away nor qualifie the implied warranty but the Lessee may make use of which of them hee will if he bee ousted or evicted by one that hath an elder title A covenat in particular being one part of a deed is subject Plow 287. See in Exposition of Deeds before in toto 6. How a covenant in deed or law shall be taken and expounded And how it shall be performed to the generall rules of exposition of all parts of deeds in generall as to bee alwayes taken most strongly against the covenantor and most in advantage of the covenantee 2. To be taken according to the intent of the parties 3. Vt res magis valeat c. 4. When no time is limited for the doing of the thing it shall bee done in reasonable time and the like In cases where the covenantees have or are to have several interests Ioint and severall or estates there when the covenant is made to and with the Co. 5. 19. Dier 338. Bro. Covenant 49. covenantees cum quolibet eorum aut alterâ— eorum in this case these words make the covenant severall as if one by Indenture demise black acre to A and white acre to B and green acre to C and covenant with them and either of them or covenant with them and every of them that he is lawfull owner of all these acres in this case the covenant is severall but if he demise to them the three acres together and covenant in this manner the covenant is joint and not severall And if A and B doe covenant jointly and severally in this case the covenant may bee joint or severall and the covenantors may be sued either the one way or the other at the election of the covenantee If one make a lease of land to another and covenant that hee F. N. B. 145. 1. Dier 328. 26 H. 8. 3. For quiet enjoying shall quietly enjoy it without the let of any person whatsoever or without the let of any person whatsoever claiming by or under the lessor in both these cases the covenant shall be taken to extend Mich. 7 Jac. B. R. accord in Gambles case to such persons as have title or claime some estate under the lessor for if in the first case any person
assets But if hee that doth so alien c. bee tenant by the courtesie this is no barre to the heire without assets in fee simple from the tenant by the curtesie and then it is a barre for so much And if the heire for want of this assets at the time doth recover the land from his mother and after assets doth descend from the father in this case the tenant shall recover the same land of the mother againe And if she that doth so alien c. to be tenant for Stat. 11 H. 7. chap. 20. Litt. Sect. 727. Co. super Litt. 365. life of the inheritance or purchase of her deceased husband or given unto her by any of the Auncestors of her husband or by any other person seised to the use of her husband or of any of his Auncestors in this case her alienation release or confirmation with warrantie shall not binde the heire whether hee have assets or not But if a man convey lands to the use of himselfe Co. 3. 58. B his wife and the heirs of his body and they have issue C and the father dieth and C disseiseth his mother or getteth a feoffement from a disseisor and then suffereth a recovery with a single voucher and after the wife doth release to the recoverer with warrantie in this case the warrantie is a barre to the issue and not void by the Statute of 11 H. 7. If the husband that is seised of lands in the right of his wife levy Co. super Litt. 366. 381. Stat. Glouc. ch 6. Litt. Sect. 332. a fine or maketh a feoffment in fee with warranty and the wife dieth and then the husband dieth this warranty shall not binde the heire of the wife without assets of other land in fee simple from the father albeit he be not tenant by the courtesie but it is before her death that he doth make the estate and the warranty But a Fine levied by the husband and wife in this case is a good bar to the heir If tenant in taile that is in of another estate i. either by disseisin Co. 3. 62. 22 Ass pl. 37. 29 Ass pl. 34. Fine or by the feoffment of a disseisor doth suffer a common recovery and a collaterall Auncestor of the tenant in taile doth release with warrantie to the recoverer and after the recoverer doth make a feoffment to uses executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case albeit the estate of the land be transferred in the post before the descent of the warrantie yet it shall binde So if hee to whom the warrantie is made suffer a common recovery and after the Auncestor dieth But if tenant in dower enfeoffe a villain with warranty and the Lord of the villain enter into the land before the descent of the warrantie and after the woman dieth this warrantie shall not binde the right of the heir So if a collaterall warrantie be made to a bastard and his heirs and living the Auncestor the Bastard dieth without issue and the Lord by escheat doth enter and after the Auncestor dieth this warrantie shall not binde A collaterall warrantie may descend upon an issue in taile before the right descend and yet be good with this difference that Litt. Sect. 7 H. Co. super Litt. 388 the right be in esse in some of the Auncestors of the heir at the time of the descent of the warranty as if tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile releaseth all his right c. to the disseisor with warrantie and dieth without issue and the tenant in taile hath issue and dieth in this case the issue is barred But otherwise it is where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warrantie as if Lord and tenant be and the renant make a feoffment in fee with warrantie and after the feoffee doth purchase the Seigniory and after the tenant doth cease in this case the Lord shall have a Cessavit for a warrantie doth never bar any right that doth commence after the warrantie If the case be so that if no such warranty had beene made by Litt. Sect. 703. 711. 8. What shall be said a lineall warranty And how such a warranty shall barre the father or other Auncestor the right of the lands or tenements so warranted had or might have descended or come from the same Auncestor and that from and by him that made the same warranty such a warrantie is a lineall warrantie As if a man bee seised in fee of land and make a feoffment of it to another and binde him and his heires to warrant the land and hath issue and die and the warrantie doth descend upon the issue this is a lineall warrantie for that if none such had been Co. super Litt. 371. the right of the land had descended to him as heire to his father and he must have made his descent by him And if there be grandfather father and son and the grandfather be disseised and the father release to the disseisor being in possession with warranty c. and dieth and after the grandfather dieth this is a lineall warrantie to the son and albeit in this case the warrantie descend before the right yet it is a good bar And if there be two brothers Litt. Sect. 707. and the father is disseised and the eldest brother doth release with warranty and die without issue and after the father dieth and the warrantie doth descend to the younger sonne this is a lineall warrantie to him And if lands be given to A for life Co. 1. 66 67. the remainder to his right heires and hee doth make a feoffment with warrantie and die this is but a lineall warrantie And if two parcenours be and the eldest enter into all the land to her owne use and then doth make a feoffment with warrantie and dieth without issue this as to her owne part is a lineall warrantie but as to her sisters part is a collaterall warrantie And in every Co. 8. 52. New Terms of the Law tit Warrantie case where one doth demand an estate taile if any Auncestor of the issue in taile whether he had possession of the land or not hath made a warrantie and if the issue that were to bring a writ of Formedon may or might have by possibility by some matter that might have been done conveyed to himself a title by â—orce of the gift by him that made the warrantie this is a lineall warrantie As if a man be seised of land of an estate taile to him and the heirs of his body begotten and make a feoffment of it and bind him and his heirs to warrant it and hath issue and dieth this warrantie descending upon the issue is a lineall warrantie And if lands Litt.
seisin and therefore it is no good lease untill livery of seisin be made but it is a good beginning of a lease If the father infeoffe his sonne of land and the sonne suffer Perk. Sect. 216. his father to enjoy it and after the sonne doth come to the Parish Church where the land doth lie and there in the audience of the parishioners useth these words to his father Father you have given me such and such lands and doth name them as freely as you gave them to me I give them to you againe this is no good livery of seisin neither doth any estate passe hereby So if one being upon his Hil. 37 Eliz. B. R. Callards case land say to I S I S stand forth I doe here reserving an estate to me for mine owne life give this land to thee and thy heires for ever this is no good livery of seisin neither doth any estate passe thereby So if one make a charter of feoffment to me and make no livery of seisin thereupon and after I make a feoffment of the land Fitz. Fait feoffments to I S and the feoffor hearing and having notice of it saith I doe willingly agree to it and am contented that I S shall have it or I doe agree to the feoffment or the like in this case this doth not make the feoffment that was made to me good If divers parcells of land be conveyed and livery of seisin is made Co. super Lit. 48. Fitz. Estoppell 177. in one or there be divers feoffees and livery of seisin is made to one of them according to the deed without using any more words this is good But the best forme and order of making of livery in this case is to adde these words in the name of all the rest c. If the feoffor donor c. deliver the deed in sight or view of Co. 9. 137. 6. 26. super Lit. 48. 253. the land and use these or any such like words I will that you Livery in law or within the view shall enter into the land and have it according to the deed Or take and enjoy the land according to the deed Or I deliver you this deed in the name of seisin Or enter you into the land and take seisin of it Or take the land and God give you joy of it Or if the estate be made without deed I give you yonder land to you and your heires and goe enter into the same and take possession thereof accordingly Or enter into the land and enjoy it in fee simple to you and your heires or for your life c. in all these cases the estate and the livery is good albeit the feoffor c. stand in one county and the land in view be in another county But in all these cases of livery within the view 1. It must 1 New terms of the Law Co. super Lit. 48. Dier 18. 2 18 H. 6. 16. be made by the person himselfe that doth make the estate for it cannot be made by his atturny 2. There must be a relation to to the land for if the feoflor doe deliver the deed only to the feoffee in sight of the land this is not a good livery within the view 3. The parties must stand within view of the land for if the feoffor c. being out of the sight of the land say to the feoffee 3 Co. super Lit. 48. c. Goe and enter and take seisin of the land and God send you joy of it this is no good livery of seisin 4. There must be some body capable of a freehold to take by the livery for if it be made to a lessee for years the remainder to the right heires of I S and I S is then living it is void 5. The feoffee c. must enter presently 5 Co. 1. 156. Perk. Sect. 214. Fitz. faits feoffments 47. for if either the feoffor donor c. or feoffee donee c. die before entry the livery cannot be made good And yet if the party dare not enter for feare in this case if he claime it only and doe not enter it is sufficient Livery of seisin in deed may be made or taken by the deputies or 10. Where livery of seisin made or taken by an atturny shall be good And where not And what warrant is sufficient Co. super Lit. 52. Celw 51. Co. 9. 76. terms of the law tit Livery atturnyes of the parties and this livery by them is as good as that livery of seisin which is made by the parties themselves and that also as it seemes albeit the parties themselves be upon the land at the time of the making thereof if they doe not contradict it But in the making of this livery care must be had 1. That there be a deed of feoffment for otherwise a letter of atturny to deliver possession availeth nothing 2. That there be a good authority in writing which may be either in the deed of feoffment it selfe * The opinion therefore in Co. super Lit. 52. 6. as to this point is held not to be law whether it be Poll or Indented and that albeit the atturny be not party to it or else by a single deed besides the feoffment c. 3. That the atturny doe pursue his authority at least in the substance and effect of it 4. That the atturny doe it in the name of the feoffor donor c. who doth give the authority 5. That it be done in the life time of the parties But a livery in law may not be made by an atturny And therefore if a letter of atturny be to deliver seisin generally and the atturny by virtue thereof deliver seisin in view this livery of seisin is void If an Infant or woman covert make a feoffment and letter of atturny Bro. Feoffments 25. Ass pl. 4. Perk. Sect. 23. Infant Woman covert to make livery and the atturny doe so this is void for they are not able to give such an authority And if a man whiles he is of sound memory make a feoffment with a letter of atturny to give livery and after he become paralytique and so dumbe but by signes he doth declare himselfe to be willing to have livery of seisin made and it is made this is a good livery of seisin But if a letter of atturny be made to deliver seisin of certain land by one that is de non De non sane memoris sane memorie and the deed of feoffment was made whiles he was of sound memory and afterwards he doth come to his memory again and then the livery is made upon the first warrant without any new assent c. in this case the livery is not good That for the most part which for the manner and order of making it is a good livery of seisin if it be made taken by the parties Dier 283. themselves is good
to begin in futuro and at or after the day come the lessor himself in person doth make livery of seisin secundum formam cartae in this case the lease perhaps may become good by this livery of seisin If an agreement be between two that the one shall enfeoff the other Co. super Litt. 222. upon condition for surety of money and afterwards livery of seisin is made generally without any such condition in this case it is said by some the estate shall be on condition still If there be a fault in the deed as by the mis-naming of the feoffor Perk. Sect. 42. c. feoffee c. or the like and afterwards the feoffor c. doth himselfe in person make livery of seisin upon this deed to the feoffee c. by this the fault of the deed may be holpen and cured If one make a feoffment to himself and another and give livery Perk. Sect. 204. 203. 7 H. 7. 9. of seisin to the other this is a good feoffment and shall enure to the other wholly and hee shall take the whole by the feoffment and the livery And so if the livery be made to one that is capable and to another that is not capable hee that is capable shall take the whole and the other shall have nothing So if a feoffment be made to two and one of them die before the livery is made and after the livery is made to the survivor in this case the livery shall enure to the survivor only he shall have all the estate thereby So if a feoffment be made without deed to a Corporation and to I S and livery is made to I S alone in this case I S shall have the whole and the Corporation nothing at all If a feoffment be made to four and livery of seisin is made to one Dier 35. 10 E. 4. 1. Co. 5. 95. two or three of them this shall enure to them all But if the feoffment be without deed it shall enure to him wholly to whom the livery is made And if one of them give warrant to the rest to take livery for him and they doe so this shall enure to them wholly and not to him at all for any part If the tenant make a feoffment to his Lord and another and give 10 E. 4. 12. livery of seisin to the other this shall enure wholly to the other untill the Lord agree to it and then to them both If one make a deed of feoffment of one acre of land to A and his Co. super Litt. 21. heirs and another deed of the same land to A and his heirs of his body and deliver seisin according to the form and effect of both deeds in this case it shall enure by moities i. he shall have an estate taile and the fee simple expectant in the moity and a fee simple in the other moity If two severall deeds of feoffment be made to two severall persons of one and the same thing he that can get the seisin first shall have it Rem domino vel non domino vendente duobus In jure est potior traditione prior If lessee for life make a feoffment and a letter of Atturney to the lessor to make livery he doth make livery accordingly in this case Co. super Litt. 52. this shall not enure to bar him of his entry upon the feoffee for the forfeiture of his lessee But if lessee for years make a feoffment in fee and such a letter of Atturney to the lessor and he doe deliver seisin accordingly this livery shall bind him for it shall be said as in his own right because the lessee had no freehold whereof to make livery If a lessor make a deed of feoffment and a letter of Atturney to Co. super Litt. 52. the lessee for years to give livery and he doth it accordingly this shall not be construed to extinguish or hurt his term See more in Exposition of Deeds supra ch 5. And so we come to another kinde of Deed of Common Assurance called a Bargain and Sale CHAP. X. Of a Bargain and Sale THis word doth signifie the transferring of the property of a Terms of the Law Plow 301. Co. 2. 35. thing from one to another upon valuable consideration And 1. Bargain and Sale Quid. herein only it doth differ from a Gift that this may bee without any consideration or cause at all and that hath always some meritorious cause moving it and cannot be without it This word also is sometimes applied to the assurance or conveyance whereby this is done and made which is called a deed of Bargaine and Sale for this may be done by writing or without writing And sometimes this is and may be of lands tenements and hereditaments Terms of the Law Plow 301. Co. 2. 35. 2. Quotuplex and to this the terme is most properly applied And then it is said to be where a recompence is given by both parties to the bargain As where one doth bargain and sell his land to another for mony in this case the land is a recompence to the one for the money and the money to the other for the land And this now also is become one of the common assurances of the kingdome * Per Ch. Just Hide 3 C. 1. Co. 2. 54. so that such an assurance may now bee averred to bee fraudulent within the Statute of 27 Eliz. as well as any other assurance a rent may be reserved upon it or a condition made by it as well as by any other kind of assurance And sometimes this is and may be of moveable things as trees corn grasse oxen kine houshold-stuffe and the like the property whereof is and may be altered by this kind of conveyance as well as by gift or grant And this kind of bargain and sale is that which is commonly called a Contract Terms of the Law Agreement which largely taken is an agreement between two or more concerning something to be done whereby both parties are bound each to other or one is bound to the other But strictly it is the buying and selling of some personall goods whereby the property is altered And in both these cases he that doth sell is called the bargainor and hee to whom the sale is made is called the bargainee Bargainor Bargainee The effect of this is to transfer the property and this it will as Co. 8. 94. 5. 113. 3. 62. effectually doe as any other kind of conveyance whatsoever And 3. The effect of it therefore the bargainee of a reversion howsoever he may not have benefit of a condition upon the demand of a rent without giving notice of the bargain and sale to the lessee And howsoever if A conusee by a fine of a reversion before atturnment of the tenant bargain and sell the reversion to B that B cannot distraine for this rent untill he can get an atturnment
wooll of his sheep for seven years Perk Sect. 90. Wooll this is a good grant If one being a Parson give to another all the wooll he shall have Fitz. Grant 40. for tithe the next year this is a good grant If one grant to another his horse or his cow in the disjunctive Bro. Done 19. Incertainty this is a good grant not withstanding this incertainty and the donee shall have election and by that make the grant good Any estate that a man hath in fee simple fee taile for life or years 2. Inrespect of the estate property possession of the grantor in any lands c. or any rent or profit apprender out of the same is grantable from man to man in infinitum And he that hath any such estate of any lands may charge it with any rent or profit to be taken out of it as long as the estate of the land doth last But an estate at will is not grantable over And if an estate be made to a man and his heires without the word Assignes yet he may assigne it at his pleasure for Assignes is included within Heires An Interesse termini i. a lease for years to commence in futuro is 22 E. 4. 37. Perk. Sect. 91. grantable before the terme doth begin whether it be a lease of the land it selfe or any rent or other profit out of it The interest or estate that a man hath by extent is assignable Co. 4. 64. from man to man at pleasure The reversion upon an estate taile is grantable And yet the tenant Co. 6. S. Geo. Cursons case Co. 1. Altonwoods case in taile in possession by the suffering of a common recovery may barre him in reversion of any fruit of it If an estate be made of land upon condition as if A make a feoffment Co. 1. 147. 10. 48 49. Lit. chap. Confirmation to B on condition that if A pay twenty pound he shall have the land againe in this case A and B together may at any time before the performance of the condition joine together and grant this land or charge it with any rent c. and this will be good for it is a maxime in law Fee simple land may be charged one way or other And in this case B may grant over his estate alone but it will be subject to the condition And if B grant a rent out of the land to a stranger and after the condition is performed and the feoffor enter in this case he shall avoid the rent But in this case A cannot grant Co. 1. 147. for he hath nothing but a possibility If one enfeoffe divers to the use of his sonne and heire upon condition and before the time of performance of the condition the father and sonne joine to grant or charge the land this is a good grant or charge If the tenant in taile and he that is next in remainder in fee joine Co. super Lit. 45. Co. 10. 48 49 in the grant of a rent charge in fee and after the tenant in taile doth die without issue in this case this is a good grant and charge against him in remainder And if A doth bargaine and sell land to B by indenture and before inrolment they doe joine to grant a rent charge to C by deed in this case this is a good charge and grant whether there be any inrolment or not And so if donor and donee in taile grant a rent charge out of the land then the donee die without issue in this case the grant is good to bind the donor If land be granted to two men and to the heires of their two bodies Co. super Lit. 182. begotten in this case albeit they have severall inheritances after their death yet neither of them can grant away his estate after his life for they are divided only in supposition of law One coparcener of a seigniory may grant his part to a stranger Perk. Sect. 73. Perk. Sect. 103. If two Jointenants be of a plow land and one of them doth grant to a stranger common of pasture for beasts without number to be taken in the same land this is void If two Jointenants be of a reversion one of them grant the whol Iointenants Perk. Sect. 80. Perk. Sect. 65. Dier 12. 33. this is void for a moity If a man grant or charge that which is none of his and that wherein he hath no property it being in the grantee or a stranger the grant is void And therefore if a man grant a rent charge out of the Manor of Dale or grant a reversion of land and in truth the grantor hath nothing in the Manor of Dale or in the land in this case the grant is void And albeit the granter doe afterward purchase the Manor or the land yet this will not make the grant good But if the grant be by fine or by indenture there in some cases it shall be good by way of estoppell And in this case Estoppell albeit the party recite that it is his owne yet this will not mend the cases And therefore if a man recite that he hath a rent of tenne pound a yeare and then grant five pound a year parcell of it in this case if he have no such rent the grant is void A Shepherd Bailif or Parker cannot give or grant away the Servant Bro. Done 56. 4. goods of his master without authority And yet it seemes the servant of a Taverner or Mercer may give or grant his masters Wine or Wares And if a wife give or grant the goods of her husband Husband and Wife this is a good gift or grant untill the husband disagree to it and by his agreement it is made good for ever If a man have a lease for yeares of land and make a lease for life Plow 524. 525. of it or charge it for longer time then the lease for yeares doth last in this the grant is good for so long as the lease for yeares doth last and no longer But if he make a lease for life and give livery of seisin he doth forfeit his estate Regularly a man cannot grant or charge that which is not in Co. super Lit. 214. Perk. Sect. 65. 86. his owne possession albe it he have a right to it And therefore if a man be disseised of his land and before he hath entred into or recovered the land he doth grant or give the land or his right to the land to a stranger or grant a rent charge out of the land to a stranger in these cases the grants are not good And yet such grants by fine may be good by way of estopell And by a release also the right may be extinct But if one that hath a reversion upon an stoppell estate for life and he grant a rent issuing out of this land in this Perk. Sect. 92. 98.
and the words whereby the same is set down And what words will make an estate for life or years for so long as it endureth as a lease for an hundred or a thousand years So a lease for half a year or a whole year is good So if Plow 422. a lease be made from day to day or from weeke to weeke for four years this is a good lease for four years Et sic de similibus So if Plow 272. Bro. Leases 49. one make a lease for ten years so from ten years to ten years during an hundred years or untill an hundred years are incurred this is a good lease for an hundred yeares So if one make a lease from Dier 24. three years to three years during the life of I S in this case if livery of seisin be not given this is a good lease for sixe years but if livery Livery of seisin be given it is a good lease for the life of I S. And if a lease be made from my death untill Anno Domini 1650 this is a good lease If I say to I S being in my house Here I S I demise to you my Co. 6. 26. Livery of seisin house and land so long as I live this is a good lease for life to him if livery of seisin be made Et sic de similibus If one make me a lease of land until an hundred pound be paid me 21 Ass pl. Livery of seisin make livery of seisin upon it this is a good lease for life determinable upon the payment of the hundred pound But if no livery be made it is no good lease If one make a lease to me for my life and for four ten or twenty Bro Leases 27. 51. Executors yeares after this is a good lease for life first if livery of seisin bee made and then a good lease for years for so many years as are agreed upon afterwards which my executors shall have And if no livery of seisin be made yet it seems it is a good lease for so many years after my death If an Indenture of lease be made between A of the one part and Co. 1. 153. Dier 253. B C and D of the other part and therein A doth demise land to B To have and to hold to him for eighty years if B shall live so long and if he die or alien the premisses within the term then that his estate shall cease and then the lessor doth grant the land to C for so many years of the said term as shall be then to come after the death or alienation of B if he live so long in this case this is a good lease to B for so many years as he shall live of the eighty years but the lease to C after is not good for the terme is ended by the death of B but if the words of the second demise be To have and to hold during the residue of the eighty years and not during the residue of the term in this case the second demise is good to C also If one make me a lease for sixty years if I live so long provided Co. 1. 155. Dier 150. 253. that if I die within the term that my executors shall have it during the residue of the sixty years in this case this is a good lease for the sixty years determinable upon my death but not a good lease for the residue of the sixty years after my death And yet it may amount to a good covenant for that time If A covenant to levy a fine to B and his heirs provided that if he Evans case Trin. 5. Jac. B. R. pay B and his heirs ten pound at the end of thirteen years that then Covenant the fine shall be to the use of A and his heirs and A doth covenant with B by the same deed that B his heirs executors and assignes shall quietly hold the premisses from Michaelmas next for thirteen years and yearly from thenceforth for every if the ten pound bee not paid according to the intent in this case this covenant doth not make a good lease for the thirteen years and it is but a covenant Covenant If one make a lease for a certain number of years and it is further Plow 272. Lit. Sect. agreed that upon some contingent the lessee shall have the see simple and livery of seisin is given hereupon in this case the lease for years doth continue good for the time agreed upon A lease for years cannot by the agreement of the parties be made Co. 2. 24. 10. 87. to the heirs of the lessee nor intailed to the heirs of his body And therefore if a lease be made to I S and his heires or to I S and the heirs male of his body yet the executors of I S and not his heirs Executors shall have it and the executors may sell the term If two agree by word that one of them shall have such a peece of Per Justice Jones at the Assises at Glouc. land for twenty years this is a good and perfect lease that is made by this agreement albeit they doe agree to have a writing made of it afterwards for in this case the writing is but the confirmation of it But if the agreement be that such a writing shall be made or that a lease shall be made of such a thing between them and put in writing so that the agreement hath reference to the writing and implieth an intent not to perfect the agreement till the writing be made in this case the lease is not a perfect lease untill the writing be made Albeit the most usuall and proper making of a Lease is by the Co. super Lit. 5. F. N. B. 270. e. Br. Leases 71 words Demise grant and to ferme let and with an Habendum for life or yeares yet a Lease may be made by other words for whatsoever word will amount to a Grant will amount to a Lease And therefore a Lease may be made by the word Give Betake or the like The word Locavit also is a good word And the use in the Exchequer is to make Leases by the word Committimus which is a good word to make a lease d Bro. Leases 60. And if A doe but grant and covenant with B that B shall enjoy such a peece of land for 20. yeares this is a good lease for twenty yeares e Mic. 9 Ja. B. R. Curia So if A promise to B to suffer him to enjoy such a peece of land for twenty years this is a good lease for twenty yeares f 5 H. 7. 1. So if A license B to enjoy such a peece of land for twenty yeares this is a good lease for twenty yeares And therefore it is the common course if a man make a feoffment in fee or other estate upon condition that if such Agreed by all the
is not a good exchange And by the same reason it should seeme if lessee for twenty yeares of his land exchange with another for other land for forty yeares that this should not be a good exchange o Perk. Sect. 276. But if lessee for life be of an acre of land and he give another acre of land to his lessor in fee taile in exchange for a release of all his right in the acre that he holdeth for terme of his life To hold to him and the heires of his body engendred this is a good exchange p Co. 11. 80. Or if tenant for his owne life exchange with him that is tenant in taile after possibility of issue extinct this exchange is good q Perk. Sect. 275. 19 H. 6. 27. And yet if an estate for life be expressed to the one party upon the exchange and no estate is expressed to the other party it is said that this exchange is not good and yet where no estate is expressed the party shall have an estate for his owne life But in these cases it is not necessary that the parties to the Co. super Lit. 51. Perk. Sect. 289. Lit. Sect. 65. Perk. Sect. 280 281. Husband and wife Tenant in tail exchange be seised of an equall estate at the time of the exchange made for if tenant in taile or husband in right of his wife exchange their land in fee simple with another for lands he hath in fee simple this is a good exchange untill it be avoided by the issue or the wife r Idem Neither is it necessary that both estates be in possession for one may grant an acre in possession in exchange for an acre in reversion and this exchange is good s Idem Neither is it necessary that there be an equality in the value or quantity of the lands exchanged for if the land of one of the parties be worth one hundred pound and the land of the other but tenne pound or the land of one of the parties be one hundred acres and the land of the other but tenne acres if the estates given be equall the exchange is good t Idem Neither is equality in the quality or manner of the estates requisite For if two Jointenants be in fee of an acre of land and they grant that acre to another in exchange for other lands To have and to hold a moity to one of them and his heires and a moity to the other and his heires which is an estate in common or two men give lands in exchange to A and his heires for lands from A to them two and their heires albeit the one party hath a joynt estate and the other a sole estate yet the exchange is good The like law is if the land of one of the parties be of a defeasible title and the land of the other of an undefeasible title this exchange is good till it be avoided The fifth and last thing required in a good exchange is that there Co. super Lit. 50 51. Co. 1. 98. 105. Perk. Sect. 284. 286. 292. 289. be an execution and perfection of the exchange by entry or claime 5. In respect of the execution of it in the life time of the parties viz. That both the parties to the same exchange do enter into the things taken in exchange if they be such things as they may enter into for untill the exchange be executed by entry or the like the parties thereunto have no freehold in deed or in law in the things exchanged albeit the same things do lie in one County And if either of the parties die before he enter into the lands by him taken in exchange hereby the whole exchange is become void if his heir will but if one of the parties enter he shall not first begin to avoid the exchange But if the parties enter at any time during their lives it is sufficient unlesse the possession be before devested by an elder title as by entry for a condition broken entry by a disseisee or his heir or the like and not revested again before the entry As if an exchange be had betweene two of land and before their entry by force of the exchange they are or one of them is disseised of the land exchanged and the disseisor die seised thereof and then they enter according to the exchange and put out the heir of the disseisor this shall not be said to be an execution of the exchange but if the disseisee have recovered the same land against the heir of the disseisor by writ of entry and have execution then he may execute the exchange by entry And in case where a reversion rent or seigniory is granted in exchange it must be perfected and executed by the atturnment of the tenant in the life time of the parties otherwise the exchange is not good but in this case after atturnment is made it seems the exchange is perfect without any entry or claim If two Parsons exchange their Churches and resigne them into Perk. Sect. 257. the Bishops hands this is not a perfect exchange untill they be inducted and therefore if either of them die before they be both inducted the exchange is void Where a deed shall take effect as an exchange there must be all Perk. Sect. 255 256. Fitz. Exchange 14. Perk. Sect. 272. the conditions before mentioned in the case And yet note that 4. When a deed shall take effect as an exchange Or not where one thing is granted for another in the nature of an exchange and for some of the causes aforesaid the things cannot passe by way of exchange there they may passe notwithstanding by way of grant and the deed may take effect to other purposes albeit it may not enure and take effect as an exchange And therefore if two be seised of severall acres of land and the one of them by deed doth give his acre to the other and the other his acre to him without any word of exchange and each of them doth make livery of seisin to the other in this case albeit the acres will not passe by way of exchange yet will they passe by way of grant And in this case if no livery of seisin be made either of them shall hold the lands granted at will only And in like manner it is if two agree to exchange land and after each of them levy a fine or make a feoffment of the land to other by this the land will passe each to other but not by way of exchange So if A and B his wife and C and D his wife agree to exchange lands and A and B enter into the land they are to have in exchange and then they doe make a feoffment of their own land unto C and his father and not to C and D his wife this shall not enure as an exchange and therefore C and D may enter upon their own land again but the
Co. super Lit. 338 Per sect 600 Bro. sur 4. surrender A lessee for life or years may surrender to him that is next in remainder in fee simple or fee tail or to him in reversion in fee and this is a good surrender and a surrender as it seems may be made to the grantee of the reversion before atturnment so as atturnment be afterwards made And in case of the surrender of Dier 251. 358. 280. an estate for life there needs no livery of seisin as in case of the grant Livery of seisin of an estate for life A lessee for years of a term to begin at a day Perk. Sect. 601 602. 4 H. 7. 10. Co. 6. 69. to come cannot surrender it by an actuall surrender before the day the term begin as he may by a surrender in law a Perk. Sect. 600 601 602 603. If lessee for life be disseised or lessee for years be ousted and before his entry or the getting of the possession again he surrender his estate to him in reversion this surrender is void So if a woman that hath title of dower surrender it to him in reversion before she hath recovered it this surrender is void And yet if lessee for years after his term is begun before his entry when no body doth keep from him the profits doe surrender his estate it seems this is a good surrender but if another enter before him and keep him out it seems otherwise If there be lessee for years the remainder for life the remainder or reversion in fee the lessee for years be outsted he that Perk. Sect. 605. Dier 251. outsted him die seised then the lessee for years enter and then the tenant for life surrender to him in remainder or reversion in fee this is not a good surrender for there is in this case but a bare right of remainder for life and in fee but if the lessee for years had not been ousted it had been a good surrender If there be lessee for years the remainder for life the remainder in fee the lessee for years may surrender to the lessee for life and so may the tenant for life to him in remainder or reversion in fee but if there be tenant for life the remainder for life the remainder in fee in this case the second tenant for life cannot surrender to him in remainder in fee. If a lease Perk. Sect. 588. bee made for life or years to A the remainder for life to B the remainder in fee tail to C and the first tenant for life or years doth surrender to C or to the lessor B being the next in remainder for life being then living this is not a good surrender neither can it take effect as a surrender in respect of the intervenient estate And so some say the law is if the middle remainder be but for years only as if a lease be made for years the remainder for years and the first termor surrender his interest to the lessor this is no good surrender Sed quere For it should seem that a future iuterest will Dier 112. Plow 190. Dier 93. Plow 432 433. no more hinder an actuall surrender of the first lessee then a surrender in law And so also it seems the law is for a concurrent lease which for the latter part of it is in the nature of a future interest But if in this case it fall out the middle remainder be void as where a lease is made to A for life or years the remainder to a monk who is a person uncapable for life or years the remainder to I S in fee in this case A the first tenant may surrender to him in remainder in fee and the surrender is good If lessee for 20 years make a Perk. Sect. 604. 14 H. 7. 3. Plow 541. Bro. Sur. 16. lease for 5 years and the lessee for 5 years enter and after the lessee for 20 years surrender to him in reversion or remainder this is a good surrender So also if the two lessees join in the surrender So also if the first lessee surrender first and the lessee for 5 years surrender after But if the lessee for five years surrender to him in the reversion or the remainder before the surrender of the lessee for 20 years this cannot take effect as a surrender for two causes 1. Because there is a remnant of the term as an intervenient estate to hinder the drowning of the terme 2. Because there wants a privity between the lessee for five years and him in reversion If tenant Bro. sur 9. Fitz. sur 10. in fee simple surrender to the Lord Paramount of whom the land is held this can never take effect as a surrender unlesse it be in a speciall case where the Lord hath cause to have a Cessavit So if tenant in tail surrender to him in remainder or reversion in Perk. Sect. 590. Perk. Sect. 589. Co. super Lit. 42. 3. 61. Perk. Sect. 590. fee simple this cannot take effect as a surrender So if lessee for life surrender to him in remainder for years or tenant for the life of B surrender to him that hath an estate for the life of C these are void surrenders for the estates of them to whom they are made are not capable of such surrenders for they are not greater then the estates of the surrendrors and therefore not able to drown the estates surrendred And yet if lessee for the life of another or for his own life surrender his estate to him in remainder that is tenant for his own life this is a good surrender for an estate for a mans own life is greater in judgement of law then an estate for another mans life And hence it is that if a lease bee made to two for their lives the remainder to a third person for his own life and one of the first tenants for life surrender his estate unto him in remainder for life this is a good surrender for a moity If lessee Co. 2. 66. for life or yeares surrender to him in remainder or reversion that hath no good estate in the remainder or reversion as where the remainder or reversion is granted by word only or being granted by deed there is no atturnment of the tenant to the grant or the the like this surrender is not good And yet if tenant in taile Co. super Lit. 338. make a lease for life whereby he gaineth a new reversion but defeasible and the tenant for life doth surrender to the tenant in tail this shall be a good surrender So if a woman inheritrix have a husband and they have issue a sonne and the husband dieth and she take another husband and he letteth the land for life and the wife dieth and the tenant for life doth surrender his estate to the second husband this is a good surrender to most purposes If a feme sole be seised of land in fee
these confirmations are good But in all these kind of confirmations care must be had of the manner of penning them and that in every such deed there be a limitation of the estate i. That these words be inserted To have and to hold the tenements c. to him and his heires or to him and the heires of his body or to him for terme of life or yeares as the agreement is for if lessee for life make a lease for yeares and then lessee for life and he in reversion confirme the land To have and to hold to him for life or to him and his heires these words will make the estate to increase But if the confirmation be made to the lessee for life or for yeares of Lit. Sect. 524. 545. Plow 540. his terme or estate and not of the land As when he doth confirme his estate To have and to hold his estate to him and his heires this doth not increase the estate And yet if he confirme the land To have and to hold the land to him and his heires this will increase the estate Et sic de similibus If the husband have an estate of land for life or yeares in the Co. super Lit. 299. plow 160. Lit. Sect. 525. Fitz. Confirmation 7. 17. right of his wife or to them both for life and a confirmation to him alone of his estate or of the land To have and to hold the land to him and his heires this is a good conveyance of the fee simple to him after the death of his wife And if I let land to a woman sole for the terme of her life who taketh a husband and after I doe confirme the estate of the husband and wife To have and to hold for terme of their two lives this is good but it shall enure only to enlarge his estate for terme of his life it he survive his wife But if one lease to another for life and after confirme the estate of the lessee to him and his wife for terme of their two lives this is void as to the wife If one grant a rent-charge out of his land for life and after the Lit. Sect. 548 549. grantor confirme the estate of the grantee in the rent without any clause of distresse To have and to hold to him in fee simple or fee taile this confirmation is not effectuall to enlarge the estate But if a man be seised of an old rent-charge or rent-service and grant the same first for life and after confirme the estate of the grantee in fee simple or fee taile this is good and will enlarge the estate accordingly If tenant for life grant a rent out of the land to one and his heirs Co. 1. 147. during the life of the lessee for life and after the lessor confirme the rent to the grantee and his heires it seems the estate is not hereby enlarged but when the tenant for life doth die the rent shall cease This kind of confirmation may be made by the same words as Co. super Lit. 301. Fitz. Confirmotion 23. the former viz. by the words Give Grant or Demise But neither of these may be made by the words Surrender Release Exchange or the like for these are peculiar words destined to a speciall end being proper and peculiar manner of conveyances And yet if I that am a lessor do say to my lessee for yeares by my deed I will that you shall hold the land for your life this is a good confirmation to increase the estate by this word volo only So if I grant to my lessee for yeares that he shall hold the land for terme of his life this without any other words is a good confirmation By a confirmation the Lord may confirme the estate of his tenant Co. 9. 142. Lit. Sect. 538. which holdeth by Knights service to hold in Socage or to hold for 3. To diminish or a bridge the services c. a lesse rent or to hold at common law where before he did hold in ancient demesne and such a confirmation is good But such a confirmation as is to hold by new services as a rose for money or the like is not good for that purpose And in this case there must be also a privity And therefore if there be Lord mesne and tenant and the Lord confirme the estate of the tenant to hold by lesse services this is void And if the Lord confirme to his tenant after he is disseised before his entry to hold by lesse services this is void A confirmation may be by apt words in case of a lease for yeares for part of the time but in case of a free hold it cannot be so And 6. Where a confirmation may be good for part of the estate or for part of the thing Or not Co. 5. 81 82. Lit. Sect. 5 19. Co. super Lit. â—97 Lit. Sect. 520. so also it may extend to part of the thing before in estate And therefore if a disseisor tenant in taile husband of the land he hath in the right of his wife or lessee for life make a lease for yeares and the disseisee issue in taile wife or less or make a confirmation of all the land for part of the time or of part of the land for all the time this confirmation is good But if any such person make a lease for life gift in taile c. the disseisee cannot confirme part of the estate but he must confirme all And therefore if he confirme his estate for one houre it is a confirmation of the whole estate And so also if he confirme the land to the disseisor himselfe but one houre one week one yeare or for his life c. this is a good confirmation of the estate for ever And if it be a lease for yeares that is confirmed care must be had to the manner of the confirmation for if the confirmation be of the estate or the terme for one houre this is a good confirmation for the whole time and therefore the confirmation must be had of the land To have and to hold for part of the terme and being so made it may be good for that time only and no longer If I make a feoffment on condition and before the condition broken 11 H. 7. 29. Co. 1. 146. 9. 142. 7. The force and virtue of it And how it shall enure and be construed and taken I confirme the estate of the feoffee absolutely this will not extinguish the condition And yet if the condition be broken first so as my entry is lawfull in this case the confirmation will extinguish the condition And if the feoffee make a feoffment over absolutely to another and I confirme the estate of the second feoffee whether it be before or after the condition broken by this the condition is discharged If the Lord confirme the estate of his tenant in the tenements or one that hath a rent common
estate in the right of his wife only for life or yeares this is a good release †Dier 4. Co. 3. 22. So if lessee for yeares make a lease of the land but for part of the terme the privity continueth still and therefore a release to him is good to enlarge the estate But if he assigne over all the terme then the privity is gone and therefore a release made to him afterwards is void And then a release made to the assignee of the terme is good to enlarge the estate And if a disseisor make a lease for life or Plow 540. 14 H. 7. 4. Lit. Sect. 518. yeares and after he and the disseisee joine together to make a release to the lessee for life or yeares this is a good release to enlarge the estate But if the disseisor in this case make a lease for life or yeares and the disseisee or he that hath right release to the tenant for life or yeares in this case the release is void for want of privity And if there be lessee for yeares the remainder for life and Co. super Lit. 273. he in reversion release to the lessee for yeares or him in remainder for life and his heires all his right this is a good release to work an enlargement of estate So if one make a lease for life and grant the reversion for life and then the lessor doth release to the grantee of the reversion and his heires this is a good release to enlarge the estate of the grantee and here is privity enough If A be Bro. Release 71. tenant for life the remainder to B in taile the remainder to C for life the remainder to A in fee and A die and his heire doth release all his right to B being in possession this is a good release and gives the fee simple But if A make a lease to B for life and the lessee maketh a lease Co. super Lit. 273. Lit. Sect. 516. for yeares and after A in the life time of the tenant for life maketh a release to the lessee for yeares this release is void and will not enlarge his estate for want of privity So if a man make a lease for twenty yeares and the lessee make a lease for tenne yeares and the first lessor doth release to the second lessee and his heires this release is void So also if the donee in taile make a lease for his own life and the donor release to the lessee and his heires this release is void So also if the donee in taile make a lease for his owne life and after the donor release to the donee and his heires it seems this is not a good release Also one Jointenant or coparcener may Bro. Release 77. Perk. Sect. 84. release to another and thereby transferre all his estate and give the whole interest unto his companion and this is a good release to passe all his or her part of the land And if there be three Jointenants in fee and they make a lease for life and after two of them release all their right in the land to the third this is a good release So if one make a lease for life to another and after the grant the reversion to seven and the tenant for life doth atturn and after four of the seven release all their right to the other three and after one of the three release to the other two these are good releases So if a lease for yeares be made to two to begin at a day to come a release by one of them to the other is good to give all the terme and all the land to the relessee But it seems one tenant in common 1â— E. 4. 3. cannot release to another tenant in common The fourth thing that is required in such a release is sufficient 4. In respect of the words â—â— whereby it is made 4â— Co. super Lit. 273. 264. 301. words in law not only to make a release which is required in all releases but also to raise and create a new estate For this therefore know that all releases of what kind soever are commonly made by these words Remisisse Relaxasse quietum clamasse as being the most ancient and significant words for this purpose And a mongst these the word Release is the most effectuall word as that which doth include the other two and as that which is the proper and peculiar word for this kind of conveyance But there are other 9 H. 6. 35. Dier 116. Lit. Sect. 544. Co. super Lit. 264. Dier 307. Co. 9. 52. words also by which a release may be made as Renunciare Acquietare c. And therefore it is held that if one have common in anothers land and he by deed release it to him thus Renuntio Communiam meam c. this is a good release And if the lessor doe but grant to his lessee for life that he shall be discharged of the rent this is a good release of the rent And it is a rule That by what words a debt or duty may be created by words of a contrary signification it may be released And therefore if one doe knowledge himselfe to be satisfied and discharged a debt this is a good release of the debt And for words to raise the estate it is usuall and most Co. super Lit. 273. Lit. Sect. 465. 468 469. safe to specifie in the deed what estate he to whom the release is made shall have and in most cases this is needfull for it is generally true That when a release doth enure by way of enlargment of estate no inheritance in fee simple or fee taile can passe without apt words of inheritance And therefore if I make a lease of land to another for his life and after I release to him all my right without more saying in the release hereby his estate is not enlarged But if I release to him and his heires by this he hath a fee simple And if I release to him and the heires of his body by this he hath an estate taile But where a release worketh by way of mitter le estate there in some cases there needs not any words of inheritance as in cases where releases are made between Jointenants or coparceners as where a joint estate is made to the husband and wife and a third person and their heires and the third person doth release all his right to the husband alone or to the wife alone So if there be three Jointenants and one of them doth release to one of the other two in all these and such like cases there needs not any limitation of the estate for the release is good without it In every good release in deed that doth tend and enure to give Lit. Sect. 466 Co. super Lit. 265. Co. 5. 70 71. 1. 112. 8. 132. 3. When it doth enure by way of passing and extinguishment of a right or title only 1. In
release all my right in the land for the life Bro. Release 65. of the tenant for life so as neither I nor my heires shal have claim or challenge any thing or right in that land for the life of the tenant for life by this release nothing is extinct or discharged but the causes of action of wast that were then and notany cause that shall happen afterwards Dier 307. If a Statute be entred into the twentyeth of Aprill and the conusee by a release dated the ninteeneth of Aprill meaning to except this Statute doth release all debts and demands till the making of the release by this release the Statute is discharged But if the words had been to the day of the date of Per Justice â—odridge Trin. 14 Jac. the release contra If a promise be of two parts and he to whom it is made doth release one part it seems this is a release of both â—o 9. 53. If A 1â— Ian. enter into an obligation of forty pound to B and B 13o. Iuly make a deed thus It is agreed between B on the one part and A on the other part that upon good considerations B doth acknowledge himselfe fully satisfied and discharged of all bonds debts or demands whatsoever from the beginning of the world to this day by the said A and that he the said B is to deliver all such bonds as he hath yet undelivered to A except one bond of forty pound yet unforfeit which is for the paiment of c. which was the obligation before in this case it was adjudged a good release and discharge of all Lit. Sect. 467. 470. Co. super Lit. 273. 264. 280. Kelw. 88. Co. super Lit. 9. the bonds excepting that one and that this exception shall goe to all the premisses A release of a right or an action cannot be for a time but 3. In respect of the time or estate it will be for ever And therefore if a release be made to any one that hath a fee simple by wrong by him that hath the right for one houre one yeare for life or yeares this is a good release for ever And if the disseisee release all his right in the land to the disseisor without naming his heires or setting down any time how long the relessee shall have the land or the right of the disseisee therein this is a good release for ever and doth make the estate of the disseisor good for ever and so doth make a good estate in fee simple without these words his heires c. And if the disseisor or his heire make a gift in taile or a lease for life and the disseisee release all his right to the donee or lessee for life To have and to hold for life only this is a good release of his right for ever But if the disseisee doe disseise the heire of the disseisor and make a lease for life which is a release in law by this the right is released during that time only So if one Jointenant or parcener release to the other all his right in the land without the words heires or any more word this release doth give to his companion his whole interest forever And when the Lord or grantee of a rent release to the tenant or terre-tenant generally by these releases a fee simple is transferred without any words of heires c. And yet the Lord may release his Seigniory to his tenant to hold to him in taile or for life and this shall be taken and enjoyed accordingly But if the Lord doth release the Seigniory to his tenant without any words of heires put in the deed the same is extinct Lit. Sect. 545 546. 465. Plow 556. Dier 263. And if I let land to a man for terme of yeares and after I release to him all my right which I have in the land without using any other words in the deed or release to him To have and to hold for his life in both these cases he hath an estate for his life only And if I lease land to a man for his owne life and after release to him To have and to hold for his owne life hereby he hath but an estate for his owne life But if I make a lease to him for anothers life and after release to him Habendum to him for his owne life by this he hath an estate for his owne life But if I be seised of land in fee simple and let it to another for life or yeares and then release all my right to him To have and to hold to him and his heires hereby he hath the fee simple And if I release all my right to him To have and to hold to him and the heires of his body hereby he hath an estate taile And if one be seised in fee of a rent service or charge and Lit. Sect. 549. grant it first for life and then release it to the grantee To hold to him and his heires or to him and the heires of his body this shall enure to an enlargement according to the agreement But if one grant a rent-charge out of his land de novo and after release to the grantee all his right in the rent To have and to hold to him in fee simple or fee taile this doth not enlarge the estate And if tenant in taile or for life make a lease for years Lit. Sect. 606. 610. 24 E. 3. 28. and after by deed doth release all his right to the lessee for yeares in possession to hold to him and his heires for ever this will not make the estate of the lessee good for longer time then the life of the relessor If one make a lease for tenne yeares the remainder for Co. super Lit. 273. twenty yeares to another and he in remainder release all his right to the lessee for tenne yeares in this case the relessee hath an estate for thirty yeares and no lesse for one lease for yeares cannot drowne in another If I let land to a woman sole for her life or for yeares Lit. Sect. 526. Co. super Lit. 299. 300. and shee take a husband and after I release to them two to hold for their lives this shall enure no further then the intent and in the first case he shall hold jointly with his wife but in her right whiles shee doth live and after for his owne life if he survive and in the last case they shall have the free-hold jointly If there be Lord and tenant by fealty and rent and the Co. super Lit. 280. Lord granteth the Seigniory for yeares and the tenant atturneth and the Lord releaseth his Seigniory to the tenant for yeares and to the tenant of the land generally by this the Seigniory is extinct for ever and the estate of the lessee also But if the release be to them and their heires then the lessee shall have the inheritance of the one moity and the
Adiudg â—il 39 Eli. Co. B. yearly after untill I S he made Knight in this case albeit I S bee made Knight before Michaelmas yet the first 10l at Michaelmas must be paid If the condition bee thus That if the Obligor shall for ever Adiudge M. 18. Iac. B. R pay yearly to the Obligee c. 10l at the two usuall Feasts by equall portions or if his heires shall at any time hereafter pay 100l at Harbert versus Rochsey one payment to the Obligee that then the Obligation to be void in this case albeit the Obligor hath election which of these two things to doe yet because the intent is apparant that one of these things should be done if therefore the 100l be not paid before the first Feast the 10l must be paid yearly If the condition of an obligation from A to B be thus That Dyer 421 43. To warrant land and for quiet enjoying whereas A hath sold to B certaine Meadow in Dale that the said A shall warrant the same against Lord and King and all others if the said B shall peaceably enjoy it to him and his heires of the Lord of the Mannor of M by the services due after the custome c. in this case the substance of this being for quiet enjoying it shall be extended that way and albeit it be not said what he shall warrant yet it shall be taken the Land in question and the warranty shall be construed to last only for the life of B and not to extend to any new titles after the Covenant especially such as are by the act and default of the Obligee himselfe as if he commit a forfeiture and the Lord enter or the like If the condition be That the Obligor shall sufficiently prove Perk. Sect. 791. 10. Ed. 4 11. To prove a thing such a thing this shall be taken for proofe by enquest and accordingly it must be done But if the condition be that it shall be done by such a time or before such persons as when or where such Golds case in Harberts Rep. 127. proofe cannot be had then it is otherwise Where the word proofe is put generally it shall be understood of proofe by Iustice but when the parties agree upon another form of proofe that shall prevaile against that which is but instruction of Law If one be bound in an obligation with condition to suffer his wife Curia Trin. 7. Iac. Co. B. To suffer his wife to make a Will to give to her kinsfolks children or others portions of his goods to the value of 100l and that he will perform it and she give part to one and part to another in this case the husband must performe it accordingly But if the condition be to suffer her to give to A and B 100l and that he will perform it and she give 100l to A he is not bound to perform this If the condition be That hee shall perform his wives Will so it Adiudge Hil. 7. Iac. B. R doe not exceed 20l. and shee make a Will and devise 100l in this case hee is not bound to perform the Will for the 20. If the condition of an Obligation be That the Obligor shall infeoffe 5. In respect of the manner and order of of doing the thing and other matters Kelw. the Obligee and such others as he shall name by a day in this case the Obligee must doe the first act viz. name the others otherwise the Obligor doth not forfeit his obligation by the not doing of iâ— But if the condition be to infeoffe me or such others as I shall name before such a day in this case if I doe not name others it seemes he must enfeoffe me before the day at his perill If the condition be that the Obligor shall make such an estate Coo. 5. 25. 7 Ed. 4. 13 Perk. Sect. 775. of Land as I S shall advise I S must first advise and this must be made known unto the Obligor ere he is bound to doe any thing and if he never advise he is never bound to doe any thing for it is in this case as if one bee bound to stand to the award of I S and I S never make any or make a void award which is all one If the condition be to make such a discharge in such a Court Coo. 5. 23 as the Obligee or his counsell shall advise in this case the Obligee must doe the first act viz. advise and give notice of the advise to the Obligor before he is bound to doe the thing But if the condition be to make such a discharge in such a Court such a day as the Judge of that Court shall advise in this case the Obligor must at his perill procure the Iudge to advise a discharge and it must be done that very day or the obligation will be forfeit If the condition be to pay 20 l. to the Obligee when he doth Per. Iust Nichols M. 13 la Co. B. come to London in this case the Obligee must doe the first act viz. make known to the Obligor when he doth first come to London for otherwise it seemes the Obligor is not bound to pay the money If the condition be that the Obligor shall levie a fine to the Obligee Coo. 5. 127 Dyer 371. before such a day the Obligee must doe the first act viz. sue out the Writ of Covenant If the condition be that the Obligor shall deliver 20 Clothes â—1 Ed. 4. 52 to the Obligee such a day the Obligee paying for every cloth immediately after the delivery 20 l. in this case the clothes must beâ— delivered albeit the Obligee refuse to pay the money but if immediately after be left out it seems the Obligor is not bound to deliver the cloth unlesse the Obligee first pay the money If the condition be that the Obligor and his heires shall at any Coo. 2. 3 4 Dyer 337. time upon request made doe any act c. that the Obligee shall require c. and the Obligee tender a Release or other Deed to seale in this case if the Obligor or his heir that is to seale the Deed be an illiterate man he may refuse to seale it untill he can get some body to read it unto him but he may not refuse or delay to scaâ—e it untill he can have a Lawyers advise upon it but he will forfeit his Obliligation If the condition be to doe any thing upon request the Obligor Perk. Sect. 773. Coo. 5. 21. untill request made is not bound to doe any thing towards it neither can he forfeit his obligation till them And yet if in this case the Obligor disable himselfe to doe the thing he hath undertaken to doe upon request before the request made the obligation may bee so feit without any request made If the condition be that the Obligor shall within a
shall make an obligation to Coo. super Lut. 208 209. 10 H. 6. 16. 27 H. 8. 1. To make a â—ond the Obligee and the stranger tender it and the Obligee refuse it this is a good performance of the condition But if the condition be that the Obligor shall make an obligation to a stranger and the Obligor tender it and the stranger refuse it this is no performance of the condition If the condition be that the Obligor shall marry the daughter Perk. Sect. 756. 4 H. 7. 3. To marry a woman of the Obligee by a day and he doth tender himselfe and she doth refuse in this case the obligation is forfeit notwithstanding this tender and refusall If the condition be to deliver the key of a house and the quiet Dyer 219. To leave a Possession possession to I S to the use of the Obligee and the Obligor the house being rid and every one out of the house and the door locked doth deliver the key to I S it seemes this is no good performance of the condition but that I S or the Obligee or his deputy ought to come and receive the possession See more in Condition at Numb 9. and Covenant 6. If an Obligation that is single be not performed as when it is Coo. 8. 153. super Litt. 292. FN B. 267. â— When a single Obligation shall be said to be broken and forseit or not to pay money at a day and the money is not paid the obligation is broken But if a man be bound by an obligation to pay money at severall dayes the obligation is not forseit nor can be sued untill all the dayes be past And yet if the condition of an obligation be to pay money at severall dayes and the Obligor doe fail to pay the money the first day in this case the Obligee may sue for the money due by the obligation presently If one be bound to pay money at a day certaine by a single obligation Broo. Oblig 62. Fait 105. Fitz. verdict 13. or Bill and the Obligor tender the money at the day to the Obligee so as he will give him his Bill or a Release for the money and the Obligee refuse so to doe and thereupon he doth refuse to pay the money in this case the obligation is not forseit for in this case the Obligor is not bound to pay the money unlesse the Obligee will give up his Bill or give him a Release But otherwise it is in case where one is bound to pay money by the condition of an obligation for there the Obligor must pay the money at his perill albeit the Obligee refuse to deliver up the obligation or to give a Release If one be bound to pay money on a single Bill at a day and the Obligor tender the money at the day to the Obligee and he refuse it in this case it seemes hee hath now remedy for his money Sed Quaere In all causes when the condition is not performed or broken 10. When the condition of an Obligation shall be said to be broken and the Obligation forfeit or not the obligation is forfeit and till then it cannot be forfeit And Broo. Oblig 17. therefore if one be bound in an obligation with condition to pay me 10. l. aâ— Easter before the day come the obligation cannot bee forseit but if it bee not paid at he day the obligation is forseit And yet if the Obligee himselfe be the cause of the breach of the 4 H. 7 4. condition or the thing to be done by the condition is now become impossible by the act of God the obligation is now become without penalty As if in the old dayes I had been bound in an obligation to an Abbot that A should infeoffe him before Christmasse if A enter To make a Feoffment into Religion my Bond had been presently forfeited But otherwise it had been if A had been professed under the obedience of the Obligee himselfe If the condition be to make a Feoffment of land to me such a Perk. Sect. 8. 769. day and he be not upon the land ready to make the Feoffment albeit I come not there to receive it yet the condition is broken If the condition be that when the Obligor shall come to his 21 Ed. 3. 29. Cook 5. 112. Aunt he will enfeoffe the Obligee or the heirs of his body in this case he must doe it assoon as he doth come to her and the Obligee shall request the Feoffment or the obligation is forfeit If the condition be to enfeoffe me of a Mannor by a day and before the day the Obligor doth make a Feoffment of it to another 21 El. 4. 5. hereby the condition is broken and the Obligation forfeit and though the Obligor repurchase it againe before the day and then make the Feoffment yet this will not cure the breach If the condition be to enfeoffe B and C and one of them die 4 H. 7. 4. before the time bee past wherein it should bee done in this case hee must enfeoffe the survivor of them or the condition is broken If the condition bee that if the Obligor before Michaelmasse To make a Lease Dyer 347. make a Lease to the Obligee for thirty one yeares if A will assent and if hee will not assent then for twenty one yeares That then c. if A do not assent and the Lease for twenty one years be not made before Michaelmasse the obligation is forfeit If the condition be that the Obligor shall make me an estate To make an Estate 7 H. 6. 24. upon request and he tender me an estate before I request it and afterwards I doe request it and he doth refuse it in this case the condition is broken and the obligation forfeit If the condition be that the Obligor shall make me a good estate Pasche 8. Co. B. â—a of land being Copi-hold land and he doth surrender it absolutely and the Homage when they present it doe present it conditionally this is no breach of the condition If the condition be to make a good estate of land in Fee-simple 4 H. 7. 4. Kel to A a woman before such a time and before such time the Obligor taketh A to wise and the day passe and no estate is made in this case the condition is broken and the obligation forfeit But if the obligation be made to the woman her selfe then it is dispensed with by the inter-marriage If the condition be that the Obligor and his sonne shall doe all Coo. 2. 3. Dver 337. such acts for the better assuring of land as the Obligee or his To make further assurance Counsell shall devise and the Obligee devise and tender a Release to the Obligor and his sonne to seale and they delay and refuse to seale it untill they can shew it to their Counsell to bee
Schedule in the custody of such a man and in truth there is no such Schedule in the custody of such a man to be found or if there be no name written therein it seemes these Legacies are void for incertainty So if a man give a Legacy to a man incertaine and no such man is to be found and the meaning of the Testator cannot be known this Devise is void And yet if a man by his Will say thus I devise to him that shall marry my daughter this is a good Devise and he that doth marry my daughter in my life time or after my death shall have it And if a man devise any thing ad pias causas as to the Church or to the Poore not expressing what Church or Poore this perhaps may be a a good Devise So if a man give 20l. to his kindred it is said this is a good Devise and that a reasonable exposition shall be made of it as neer the intent of the Testator as may be viz. that those in the next degree shall have it first and then those in the next degree to that shall have it afterwards and if it be a Devise to the kindred of another man that they shall have it equally Sed quaere of this Devise for it seemes altogether uncertaine So if a man give to I S or I D 20l. this is held Swinb part 7. sect 9. to be a good Devise albeit it be somewhat incertaine and the disjunctiue shall be taken for a copulative and so I S and I D shall take both by this Devise but if in this case one of them be nearer of kin then the other then it is said he shall have it for his life anâ— the other afterwards And if one devise 20l. to A or B which of them I S will appoint this is a good Devise and hee that I S shall appoint shall have it And if one devise to I S and his children this is a good Devise and certaine enough and hereby he and Plow 345. Coo. 1. 105. 155. Perk. sect 508. his children shall take the thing devised together 3. And as the person to whom the Devise is made must be capable and certainly described and named so must he be capable by that name by which the Devise is made to him or otherwise the Devise is void And therefore if a Devise be to the heires of I S I S being living this Devise is void And yet if â—ands or goods be devised to the Executors of I S and I S die before the Testator and make Executors this is a good Devise to the Executors And if a man devise his land to I S for life the remainder to the next of kin Fitz. Devise 27. Plo. 523. Perk. sect 509. 510. â—â—oo Corporation 55. or next of blood of I S this is a good Devise of the remainder And iâ— a man devise goods to the Pariâ—â—ioners of the Parish of S to the use of the Church this is a good Devise and the Church-wardens may recover it And if a man devise Eccleâ—â—â— sanctâ— Andreâ— dreâ— de Holborne it seems this is a good Devise to the Person of that Church And if a man devise to the City of London University of Oxford or to Queens Colledge in Oxford these are good Devises But if one devise to the Cominalty of a Guyld that is not incoâ—porate as to two of the middle men of the Guyld of the â—raternity of whiteacres in London or the like this devise is void 4. And if the person be capable wel-named and capable by that name if his name be truly set downe yet if his name be not so Dyer 4. Perk. sect 50â— Swinb 289. 290. 〈◊〉 but mistaken the Devise is void And therefore if one intending to give 20l. to I S devise to I N 20l. this devise is void both to I S and I N except the person be certainly denoted and described by some other circumstance as to I N the sonne of I S my Lanlord or the like So if one devise to the Abbot of S. Peter when the foundation is the Abbot of S. Paul this Devise is void And if one devise to a Corporation and there be none of that name at the time of the Devise nor during the life of the Testator this Devise is void and so also it seemes the Law is if there be a Colledge made after of that name But if one devise a thing to Plow 344. the wife of I S and before the Devisor die I S dye and she take another husband and is called by another name yet this Devise is good So if one give a Legacy to I S Deane of Pauls and the Chapter there and their Successors and after before the death of the Devisor I S dye and another is made Deane yet this Devise is good notwithstanding this mistake For the third and fourth thing required in a good Devise see before at Numb 4. Part. 2. 3. And for the fifth thing it is to be knowne 1. Coo. supeâ— Litt. â—11 Plow 345. Swinb parâ— 1. sect 12 That lands and tenements devisable by custome may be devised by Fifthly in reâ—pâ—ct of matter tâ—uâ—hing the manner and forme of the Devise And how a Devise may be made a Nuncupative Will without any writing for any time whatsoever as Uses at the Common-Law that are now within the Statute might have been Also those Uses that remaine at the Common-Law and are not within the Statute may be devised by word without any writing But no estate can be made of lands by Devise upon the Statute except the Devise be in writing and so a man may devise his land albeit he make no Executor for an Executor hath nothing to do with the Free-hold of land Also goods and Plow 345. Swinb part 1. Sect. 1â— Dyer 140. chattels leases for yeares of Lands Wards Villaines and the like may be devised by word without any writing at all And yet it seemes questionable whether a Lease for yeares of a Rent Common or such like thing be devisable by word without writing 2. Swinb part 4. sect 4. Plow 23. Littl. Broo. sect 316. Dyeâ— 23. The forme of words in a Devise is not at all regarded and therefore if one say I give institute desire appoint or will that I S shall have my land or that I S shall have 20l. or let I S have my land or 20l. all these Devises are as good as if he say I devise to I S my land or 20l. And therefore if one at this day since the Statute of Uses devise that his Feoffees of the land shall bee seised of the land to the use of I S and his heires or to the use of I S and the heires of his body or if such a man devise that his Feoâ—fees shall make an estate of the land to I S and his heires or to him and the heires of his body this is a
good Devise of the land in Fee-simple or Fee-taile * 〈◊〉 c. 9. â—ac New mans case And if a man make a Feoffment of his land to the use of his last Will and then devise that his Feoffees shall be seised to the use of I S this is a good Devise of the land per intentionem * Plow 54â— Coo. 4. 66. 8. 95. And if I devise that I S shall have hold and occupy my land for his life this is a good Devise of the land for his life * Dye◠〈◊〉 33. 128. Coo. 1. 83. 6. 42. Dyer 4. 33. If a man have a Lease for yeares of land and he devise his Lease or his Terme or his Ferme or the profits or occupation of the land by either of these Devises his whole lease and all his interest in the land is given as well as by any other forme of words 3. A man may devise lands tenements or hereditaments in possession in Fee for life or yeares or he may devise it in reversion viz. to one for life the remainder to another in Fee or in taile or in any other sort as a man may grant it by his Deed and such Devises are good But if the Fee-simple of land be devised to one the remainder cannot be devised to another albeit the first Devise be but conditionall And therefore if land be devised to I S and his heires and if he dye without heires that it shall remaine to I N and his heires this is a void remainder to I N. So if a man devise his land to I S in Fee ita quod solvat I N 20l. and if he faile that it shall remaine to I N and his heires this remainder to I N is void for if I S faile of payment I N shall not enter and have the land but the heire of the Devisor And yet perhaps a rent may be devised after this manner Howbeit if another man have a Rent-charge of 20l. a yeare issuing out of my land for Dyer â—39 â—4 20. yeares and he devise this unto me untill I have levied 100l by way of retainer the remainder to I S this remainder is not good 4. A Devise may be of lands goods or chattels simply and absolutely or conditionally the simple Devise also may be in praesenti Condition Pâ—â—w 〈◊〉 Peâ—k Sect. â—63 See 〈◊〉 〈◊〉 8. 95 or in futuro And therefore as a Devise to one and his heires in praesenti is good so a Devise to one and his heires after the death of I S is good If I devise land to I S and his heires on condition as so as or ita quod he pay 10l to W S or paying to W S 10l or ad solvendum 10l to I S the Devise in all these cases is a good conditionall Devise and if the condition be not performed or broken the estate is ended and the heire may take advantage of it And therefore if lands be so given to the heire the condition is idle because none can enter but him And if I devise that if I S pay my Executors 20l. that hee shall have White acre to him and his heires for ever or for life c. this is a good Devise and after the contingent shall take effect accordingly and in this case and such like the heire of the Devisor must keep the land untill the contingent doe happen In like manner as if it bee a chattell the Executor shall keep the thing untill the condition bee performed and after a condition broken hâ— shall take advantage of it 5. A Devise may be also with a limitation as in the cases before Limitation and as where one gives land to another and his heires so long as I S shall have heires of his body or where one doth devise his land to A his sonne and his heirs for ever paying to B his brother 20 l. when he shall come of age and then that he shall enter and have it to him and his heirs and if he die without heirs of his body the said B then living then that B and his heirs shall have it in the same manner And these and such like Devises are good 6. A man that is seised of land in Fee may devise that his Executors Coo. super Lit. 112. 11â— 236. shall sell it or may devise it to his Exâ—cutors to sell or Devise it to his Executors and that they shall sell it and these Devises are good 7. A Devise may be of a rent or of land reserving Dyer 348. 100. 8. 84. 85. Clause of Distresse a rent with clause of Distresse As if a man Devise land to I S paying 10 l. by the yeare to his wife and if it be unpaid â—arrantiae that she shall distraine for it this is a good Devise But a Warranty cannot be made by a Wilâ— And yet if a man devise land to Coo. super Litt. 38â— another for life or in Taile reserving a rent in this case the heires of the Devisor shall be bound to the Warranty in Law and the Devisee shall take advantage of it 8. A man may devise his land Plow 523. 540. Dyeâ— 357. Coo. 8. 94. 83 to one and devise a rent out of the same land to another and these Devises are good So a man may devise his land to one in Fee and after devise the same land to another for life or years and these are good Devises and may stand together So also if a man in the fore-part of his Will by generall words devise all his lands to one in Fee and in the latter part of his Will devise some speciall part of it to another in Fee these Devises are good and shall stand together as for example if one have a Farm and in the first part of his Will give this Farm to one and in the latter part of his Will give one Close a part of this Farm to another or a man devise all his land in B which is in the County of Glouâ— to A his daughter and the latter part of his Will deviseth all his land in the County of Glouâ— in the possession of I S to his sonne and part of the land in B. is in the possession of I S and in Gloucestershire these are good Devises and shall stand together * 38 Bliz. Co. B. Agreed divers times But otherwise it is when the generall clause doth come last as where one doth give his land to A his daughter and in the latter part of his Will doth give all his land in Hartfordshire in the possession of I S to W and the land given to A is in Hartfordshire and in the possession of I S in this case the Devises will not stand together for the first Devise is void and so also it is where both the Devises are particular as where first in a mans Will he doth give White Acre to A and his heirs and after in
through the posts or walls tables dormant furnaces of lead and brasse and fats in a brew and die house standing and fastned to the walls or standing in or fastned to the ground in the middle of the house though fastned to no wall a copper or lead fixed to the house the doores within and without that are hanging and serving to any part of the house shall not goe to the Executor or Administrator to be divided and sold from the house albeit the Executor or Administrator have a Lease for yeeres of the house and by that meanes hath the house also But if the glasse be from the windowes or there be wainscot loose or doores more then are used that are not hanging or the like these things shall go to the Executor or Administrator If I make a feoffment to I S of land on condition that if he Co 3. 5. 96. Fitz. Executor 8. pay me my heires or assignes or my heires executors or administrators a 100l such a day that the Feoffment shall be void and I dye before the time of paiment in this case if this money be paid at the day my Executor or Administrator and not my heire shall have it If one be seised in Fee of lands whereon there are trees growing and he make a Feoffment of the land to me excepting the trees Coo. 4. 63. 11. 48. and afterwards he doth sell me the trees for ever and after I dye in this case my Executor or Administrator shall not have these trees as they shall in case where the Feoffor doth grant them to me for yeares And if I be seised of land in Fee and I make a Lease for life or yeares of it excepting the trees and afterwards I dye in this case my Executor or Administrator shall not have these trees but they shall goe in both cases with the land If a Lease be made for life or yeares of land whereon a house is standing or timber is growing and the house is prostrate or the Coo. 4. 63. 11. 81. 84. timber is cut or fallen down by whomsoever or what means soever it be the materials of this house and this timber is now become a chattell and therefore if the Lease be without impeachment of waste it shall goe to the Lessee and after his death to his Executor or Administrator but if the Lease be otherwise it shall goe to the Lessor and after his death to his Executor or Administrator But if the timber be cut for reparations only or the Lessee will imploy the materials of the house to build it againe and the Lease do continue it may be so imployed and then the Executor or Administrator of the Lessor may not take it If one be seised in Fee-simple of ground whereon trees do grow and he sell me these trees for money and afterwards I dye before Coo. 11. 50. Perk. Sect. 58. they be cut in this case my Executor or Administrator shall have and may cut them If the Kings teâ—ant by Knights service in Capite be seised of a Mannor whereunto an Advowâ—on is appendant and the Church become Coo. super Litt. 388. void and the tenant dyeth his heire within age in this case the King and not the Executor or Administrator of the tenant shall have the Presentation And yet if in this case the land be held of a common person the executor or administrator and not the Gardian shall have it In all cases regularly where a man doth sowe land whereof and wherein he hath such an estate as may perhaps continue untill the Dyer 31â— Doct. St. 35. Perk. Sect. 59. corne be ripe if he that doth sowe it die before it be cut and severed his executor or administrator shall have it as if the husband sowe the land whereof he hath an estate in Fee-simple Fee-taile for life or for a certain number of years in the right of his wife and dye ere it be ripe in this case the Executor or Administrator of the husband and not the wife shall have it And if one that holdeth land fot the life of I S sowe the land and I S die ere it be ripe and cut the Executor or Administrator of the tenant shall have this corn And if tenant in Tail or in Dower sowe the land they do so hold and dye ere it be cut the Executor or Administrator not the issue in tail nor the heir or him in reversion shall have it So if the husband make a Feossment in Fee to the use of himself for life and after of his wife c. and he sowe the land and after die his Executor or Administrator not his wife shall have the corn But if a Feoffment be made to the use of the husband and wife together in Fee or for life and the husband sowe the land in this case the wife not the Executor or Administrator of the husband shall have the corn So if Lessee for years certain sow the land a little before the end of his term and the term end before it be cut in this case he that is to have the land not the Executor or Administrator of the Lessee for years shall have the corn If there be Tenant for life the remainder in Fee of a Tenancy Coo. 2. 93. and the Lord grant his Seigniory for life and after he in remainder in Fee of the Tenancy dye his heir within age and after the Lord die and after the Tenant for life die in this case the heir and not the Executor or Administrator of the Lord shall have the Wardship If one be seised of land in Fee and make a Lease for years rendring Hill 7. Iac. B. R. per Câ—riam Rent at Michaelmas or within 10 daies after and the Lessor happen to die during the term after Michaelmas and before the 10 daies expired in this case the heire of the Lessor and not his Executor or Administrator shall have the last half years Rent due at Michaelmas If one grant a Rent in Fee and grant withall that if the Rent F. N. B. 120. â—itz Covenant 17. Dâ—er 24. be behind the Grantor shall forfeit 205. nomine poenae to the Grantee and his heirs and the Rent is behind and the Grantee die in this case his Executor or Administrator not his heir shall have this money that is forfeit already So if one make a Feoffment in Fee of land and the Feoffee doth covenant to do divers things to the Feoffor Et quoties defectus fuerit c. that he shall forfeit to him and his heirs 5l and the Feoffee doth fail and breake his covenant divers wayes and the Feoffor dieth in this case his Executor or Administrator not his heir shall have and recover all the forfeitures that are past If a Bishop Parson Vicar Master of Hospitall or any body politique be possessed of any goods or chattels in their owne right Coo. 4. 63. Perk. Sect. 58. Coo. super Litâ— 46.
marriage And that where one doth by word without Deed grant to his sonne and to his wife in tail land in consideration of their marriage that it was agreed by all the Iudges that the use did rise upon this agreement Howsoever it is most safe in these cases to do it by Deed and in writing for Dyer 296. Plow 22 seems to oppugne this And if a man make a Feoffment levy a Fine or suffer a Recovery to the Litt. Sect. 462. 463. Coo. 6. 17. use of his last Will or to the intent to perform his last Will or to the use of such person and persons and of such estate and estates as he shall limit by his last Will and then afterwards by his last Will declare the uses these are good uses and this is a good way of raising of uses So if a man devise his land by Will to I S and his heirs to the use of I D and his heirs it seems that the use will See the Stat. 27 H. 8. of Vses Fitz. Devise 22. rise to I D and his heirs by this means And if a man by a verball agreement in consideration of money or the like sell his land to another or agree and promise that the bargainee shaâ—l have it Dyer 229. for any time howsoever that hereby no use nor estate will arise if it be a Free-hold that is sold within the Statute because it is not by Deed indented c. yet it seems a good use will arise at the Common Law and that the Bargainee shall have relief in equity for his purchase The second thing whereunto respect must Coo. 1. 122. 127. 115. Plow 2 8. Dyer 8. 263. be had is to the persons trusted or to him to whom the conveyance Conscience is made for to every good use there must be a person â—eised Secondly in respect of the persons trusted and what persâ—ns may not be seised to the use of another but to their own use to use and he must be a person capable of such a Seisin And for this it must be known that any sole person that may make an estate to himself may make an estate to other uses Alâ—o a man may be seised of his own land to other uses as in the case of a covenant to stand seised to uses But the King or any body corporate Reâ—olved in Doctor Atâ—â—s case 44. Q. Co. B. alien born or pâ—râ—on attaint cannot be seised to other uses no more by an originall Feoffment to use then when they come by the land in use at the second hand in which case as hath beene shewed neither such Persons nor disseisors abators or intrudors or Lords of villains or by Escheates shall be seised to other uses but in all these cases the uses are void and the parties shal hold the land to their own uses or to the uses of the feoffors c. not to the use of Cestuy que use And a bargainee of land for valuabâ—e consideration Dyer 155. Litt. Broo. Sect. 10. cannot be seised of the land to any other use but his own * Coo. 1. 136 The third thing to be respected is the Cestuy que us for to every good Thirdly in respect of the persons for whom the trust is or the Cestuy que use use as there must be a person seised to use so there must be a person to whose use he is seised and he must be capable also And for Broo. Mortmaiâ—e 37. this it must be observed that any man that is capable of an estate directly and immediately to himselfe is capable of the same estate by way of use but if the use be limited to a Corporation there must be a licence had otherwise it will be an alienation in Mortmaine And if future uses upon Contingences be limited to such See before persons as are not in being these uses howsoever they are good at the Common-Law yet they are not good within the Statute neither doth the Statute execute them at all untill they come in 12 H. 7. 27. â—0 Ed. 〈◊〉 possession And if a Feoffment be made to I S and his heires to the use of the Parishioners of Dale this use is voyd for they are incapable by this name and it shall be to the use of the Feoffor The fourth thing to be regarded is the estate of him that doth Fourthly in respect â—f the estâ—te and pâ—ssession of him that doth create the use raise the use in the land whereof the use is raised for howsoever the Tenant in Fee-simple of land may create what uses he will in Fee for life or yeares upon it and such uses are good and the Tenant in taile or for life may perhaps grant their land for their own lives to the use of a third person a Hill 38. Eliz. Co. B. Curia Coo. 2. 52. Pasche 13. Ia Co. B. Seignior Sarversus Smith Yet if a Tenant in taile for good considerations covenant to stand seised to the use of himself for life and after of his eldest sonne in taile no use will rise by this Covenant So if Tenant in taile of an Advowson in grosse grant it by Deed to one and his heires to the use of himself for life and after to the use of another in â—ee this grant is void by the death of the Tenant in taile b Coo. 10. 96 And if such a Tenant in tail bargain and sell his land by Deed indented and inrolled hereby the bargainee hath an estate discendible to his heirs but determinable upon the death of the Tenant in taile c â— Yelvertonâ— case 37. Q. B. R. And if one covenant by Indenture to stand seised to the use of B of White Acre which he hath not then but he doth afterwards purchase it by this no use will rise And if one that hath but a term of yeares grant it to I S to the use of himself for life c this is no good use within the Statute but a Chancery trust only The fifth thing to be respected is the estate of him that doth take Dyer 369. by the conveyance out of which the uses are derived for howsoever Fiâ—â—ly in respect of the est te and possession of him that doth â—ke by the conveyance where a man doth grant in Fee-simple to another and his Coo. 2. 78. heires he may limit what uses he will upon this estate and if a man make an estate for life to another he may limit an use Coo. super Litt. 1â— thereupon yet if a man make a gift in tail to another he can limit no use thereupon And therefore if one grant his land to I S and the heirs of his body to the use of I S and his heirs in Fee this limitatiom of use is void and I S hath hereby an estate in Taile c Trin. 14. Ia. B. R. Adiudged Couper Franklins case And if a Feoffment be made
to I S to have and to hold unto him and the heirs of his body to the use of him his heirs and assignes for ever this use is voyd d Dyer 169. Cromp. Iur. 53. Litt. Broo. Sect. 284. And where one doth bargain and sell land for money in which case the law doth make an expresse use no other use can be appointed And therefore if A for money bargain and sell land to B and his heirs to the use of A for life and after of B in Tail and after of A in Fee all these uses are void for a use cannot rise out of a use So if A make a Lease to B for years rendring Rent To have and to hold to the use of the Lessor this use is void as being against reason also And if a Feoffee to use before the Statute of uses had bargained and sold the land to one who Dyer 155. Coo. 1. 136. 137. had notice of the former use no use had been made hereby for there might not be two uses in being of the same land at one time And if A enfeoffe B to the use of C and his heirs with proviso that if D pay to C 100l that C and his heirs shall stand seised to the use of D and his heirs this last use is void for the use must arise out of the estate of the Feoffee and not out of the estate of the Cestuy que use The sixth thing whereunto respect must be had is the cause or Sâ—ixthly iÌ„ resâ—ect of the cause or conâ—â—â—eration of it and what shal be a â—ufficient consideration to raise or alter a use Or not consideration For howsoever in caâ—es where uses passe by way of transmutation of possession as by Fine Feoffment or Recovery there Coo. 1. 176 the consideration is not at all materiall for he that doth make the estate may appoint the use to whom he will without any respect to marriage kindred money or other thing for in this case his own will and consideration guideth the use and equity of the estate yet in Bargains acd Sales â—nd Covenants to â—and seised to uses it is otherwise for there consideratâ—on is so necessary that nothing will passe neither will any use rise without a Consideration i. e. some matter that may be a cause or occasion meritorious which amounteth Dyer 1â—9â— Comp. â—ur 62. to a mutuall recompence in Deed or in Law which must be expressed or impliâ—d in the Deed whereby the use is created ur else supplied Aveâ—ment by averment and proof â—or howsoever in this case an averment shall not be allowed and taken against a Deed that there was Dyer 146. Coo. 1. 176. 11 â—â—5 Dyer â—1â— no consideration given when there is an expresse consideration upon the Deed yet when the Deed expresseth no consideration or saith I for divers good conâ—â—derations or the like there an avâ—rment of a good consideration given shall be received for this is an aveâ—ment that may stand with the Deed and without consideration Inrolment will not help And therefore if one bargain and sell his land to another by Deed indented and inrolled without any consideration it seems no use will rise by this to the Bargainee e 41 â— Ad iudged So if one for divers good causes and considerations or for divers great and valuable considerations bargain and sell his land to another or covenant to stand â—eised of his land to the use of another that is not of his kindred no use will rise by this unlesse it be proved that mony or something else was given for it But if a man by Deed in consideration of money as in consideration of the summe of 100l to Plow 301. Brao Fait Inroll 9. Doct. St. 99 Cromp. Iur 60. 61. Dyer â—0 him paid or in consideration of a competent sum of money to him paid or otherwise promised to be paid or in consideration of other land or of giving of counsell or the like bargain and sell or by such like words grant his land to another in Fee-simple Fee-tail for life or years in these cases the use will arise to the bargain well enough And therefore if I covenant with B that when he doth Cromp. Iur 61. infeoffe me of White Acre I will stand seised of Black Acre to the use of him and his heirs and he doth infeoffe me accordingly in this case the use of Black Acre will rise to B and he and his heires shall have it according to the agreement f So if I agree with my Lessee for years that if he pay me 100l within his term that I will stand seised of the land to the use of him and his heirs and he â— Broo. Exposition of words 44. do pay me the 100l accordingly in this case the use will rise and he and his heirs shall have it aâ—cording to the agreement So if I covenant that my sonne shall marry the daughter of A and A promise to give me a 100l for the marriage portion and I covenant that iâ— the same marriage do not take effect I and my heirs will stand seised of the land to the use of A and his heirs untill the 100l bâ— paid in this case a good use will rise of the land accordingly if the marriage do not take effect But in all these and such like cases the covenant must be by Deed indented and it must be inrolled otherwise no uses will arise And when the Deed is inrolled it shall take effect as from the beginning by relation to avoid all intervenient estates and charges whatsoever And in like manner Relation Plow 302. â—â—H 7. 20. it is if one for no cause or for no consideration as because he is of his ancâ—ent acquaintance or because there hath been entire love or great familiarity between them or because he hath been his chamber-fellow school-â—ellow or fellow-servant or because he hath done him good service or because he was his Master and taught him or to the end that he may pay his Debts and Legacies and discharge his Funerals or for divers good causes and considerations if one for any of these or any such like cause and consideration covenant with another that he will stand seised of his land to the use of that other and his heirs or that he and his heirs shall have the land c. by this covenant whether it be inrolled or not no use at all will rise So if one covenant to stand seised to the use of I S who is his Dyer 374. Bastard sonne and his heirs no use will arise hereby And yet perhaps upon such a Covenant as this whereupon no use Covenant nor estate doth arise an Action of Covenant may lieâ—â— Buâ— Coo. 7. 11. 10. 143. 1. 83. Plow 301. Litt. Broo. Sect. 284. Coo. 1. 254. if one in consideration â—f â—â—ure kindred blood 〈◊〉 with ones selfe or any of â—is 〈◊〉 paiment of debts or
the like cause or without any such exprese consideration at all Covenant to stand seised to the use of himselfe his wife children brothers sisters or cousins or their wives these are good considerations and the uses and estates thereupon thus raised and made are good And therefore if one covenant by his Deed without expression of any consideration to stand seised of his land to the use of himselfe for life and after of his wife for life and after of his child in Taile or for life and after of his brother in Taile or for life or in Fee or in any such like manner these uses will rise and the estates will bee well made hereby accordingly So if I agree with Plow 301. â—râ—o Feoffment al. useâ— 54. another that if he marry my daughter that from the time of the marriage they shall have my land to them and their heires in this case and by this agreement if he doe marry my daughter they will have my land according to the agreement So if I being about to marry with a woman covenant with I S to stand seised of my land to the use of my selfe for life and after to the use of the woman I am to marry for her life and after to the use of the heires of my body begotten on her these are good uses and estates that are made by this covenant But here by the way this difference Curia Trin. 10. Car. B. R. Hoskins case must bee observed where a man doth Covenant in consideration of a marriage to be had to stand seised to use and the marriage doth not take effect there no use shall arise So also if the parties disagree at their age of consent and so was it held in the Lord Harberts case But where one doth covenant to make a Feoffment or levie a fine to such uses and the Feoffment is made or fine levied accordingly there notwithstanding the marriage doth not take effect yet the use shall arise for there hee is in by the fine or Feoffment in which case there needs no consideration And therefore if A covenant with B that in consideration C is his kinsman and in consideration of a marriage to bee had between C and E hee will make a Feoffment and other assurances to the use of himselfe for life the remainder to C and E and the heires of their two bodies and after assurances are made accordingly by Fâ—ne or Feoffment but they do not intermarry but marry others in this case notwithstanding E shall have a Moity of the land So if I covenant in consideration of the love I beare to my wife to stand seised to the use of Coo. 7. 40. 11. 24. Dyer 374. her and her heirs of my body upon her begotten and after to the use of my brother hereby the use will rise to my brother also albeit he be not within the expresse consideration So if one covenant with his two sonnes for the love he doth beare to them to stand seised of his land to the use of himselfe for life and after of his wife for life and after of his two sonnes in taile one after another in this case the consideration is sufficient to raise the use to the husband and wife also So if one in consideration Plow 307. of the love he doth beare to his brother doth covenant to stand seised to the use of his brother and the wife of his brother for life or in taile in this case the consideration is sufficient to raise the usâ—s to them both So if I covenant in consideration of the marriage of my sonne with the daughter of another to stand seised to the use of my selfe for life and after of my sonne and his wife in Taile these are good uses and will rise accordingly If I covenant with I S to stand seised to the use of him his Executor Plow 307. Dyer 1â—4 c. he being none of my kindred for twenty years and after to the use of my sonne in Taile in this case the use will not rise to I S but it will rise to my sonne well enough For albeit the consideration of money given by one may be a consideration to all the estates yet the consideration of blood c. is singular and will raise the use of that only to which it goeth But if I covenant with B in consideration of the marriage of my sonne with the daughter of B to stand seised to the use of R a stranger for life and after to the use of my sonne and his wife in Taile in Inrolment this case the use shall rise to R albeit he be a stranger and that for the supportance of the remainder which cannot be without a particular estate and in all these and such like cases no inrolement of the Deed is necessary If I in consideration of 10 l. given to me by my sonne covenant with him to stand seised of land to Coo. 11. 24. 25. 7. 40. the use of him and his heires in this case no use will rise without inrolment by the implyed consideration because there is an expresse consideration Et expressum facit cessare tacitum And yet if I covenant that in consideration that I S is my sonne and hath paid mee 10 l. that I will stand seised Maâ—â—els case Trin. 3 â—ac B. R. Broo. Feoffment al use 15. Plow Manrels case 4. of land to the use of him and his heires in this case the use will arise without inrolment And if I covenant in consideration of 100 l. and of a marriage â—o stand seised to the use of my selfe for life and after of my sonne in Taile hereby the use is raised and the possession charged without inrolment So also where a Feoffment is made fine levied or recovery suffered and no use declared Coo. 1. 24. Dâ—â—t St. 97. 99. 101. thereupon and the same is without any consideration of fine or rent by this the use is noâ— changed for it doth result to the Feoffor Conusor and Recoveree and he hath the 〈◊〉 as he had it before but if in these and such like cases there be but a pâ—â—y oâ— a penny worth of consideration given or any rent reserved upon the Feoffment the use will rise well enough to the â—â—offâ—e c. And if any Tenure be created as where a gift in Taile Lease for life or years in made in these cases albeit there be no consideration given yet the use will rise well enough to the Donee or Leassee and especially if any rent be reserved for that is a kinde of consideration But if a Leassee for years grant over his term to another without any consideration at all it seemes by this no use at will â—ise to the Grantee and therefore that the Grantee shall hold all it to the use of the Grantor sed Quaere The seventh thing whereunto respect is to bee had is the manner and forme of words used in the
it may happen to be in possession reversion or remainder as where a use is limitted to me for life and after to him that shall be my first sonne in Taile this is only the possibility of a use for it may or may not be A Use at the Common-Law before the Statute hereafter spoken Coo. in Chudleighs care in toto Shelle â— case Kolwâ— 160. Dyer 12. Broo. Feoffâ—â— al uses in toto conscience 25. of was made was and where that Statute doth not take place is 3. The nature incidents and originall of it nothing but a meare confidence and trust colatterall to and distinct from the land annexed in privity of estate and to the person touching the land to this purpose that cestuy que use should take the profit of the land and the Feoffee or Terre-Tenant that was trusted should make estates and otherwise dispose of the land as the cesty que use in his life or at his death by his last Will and Testament should direct and appoint and if he made no disposition then that it should goe to his heir so that the Feoffee had the Free hold or sole property of the thing in him and cestuy que use had neither jus in re nor jus ad rem for if he against the Will of the Feoffee had entred into the land he had been a Trespassor but a bare confidence or trust for which the cestuy que use had no remedy but in Chancery upon breach of the trust and there to have the Feoffee imprisoned untill he perform the trust according to the order of the Court. And these uses to some purposes were reputed in Law as chattels and therefore were devisable by Will and to some purpose as hereditaments and a kind of Inheritance of which there was a possessio fratris c. and to some purposes neither chattels nor hereditaments for they were not esteemed Assets in the heire or Executor neither were they reputed as Commons Rents Conditions and such like Inheritances which are discontinued or taken away by the Alienation of the Terre tenant Escheat Disseisin c. but a use is not so And to every of these uses there were two inseperable Incidents Incidents of it confidence in the person and privity in the estate expressed by the parties or implyed by the Law and when either of these failed the use was either gone for ever or suspended for a time at the least And therefore if the Feoffee to use upon good consideration had enfeoffed another of the land that had not notice of the use the use had been gone for ever because howsoever here was a privity of estate yet here was no confidence in the person but if the Feoffment had been without consideration to such a one in this case the use had remained â—ill because the Law did imply a notice So also it Trin. 17. Ia. Cancellaria seemes the Law was when it was made in consideration of marriage only And if a Disseisor Abator or Intrudor had come to the possion of the land whereof the use was albeit he had notice of the use yet the use was suâ—pendâ— during their possession and they should not have been seised to use as the Feoffee was for they come not to the land â—n the per but in the post And if a Lord by Escheat Lord of a Villaiâ—e or one that had entred for Mortmaine or that had recovered in â— Cessavit c. had come to such land and had notice of the use the use had been â—ue for ever for these came to the land in thâ— post and above the usâ— And Tenanâ— in Dower and by the curtesy should not be seised to uses in being for all these wanted privity of estate And if there hâ—d been Tenant for life the remainder in Fee to the use of another and the Tenant for life had made a Feoffment in Fee to one that had notice of the uses this second Feoffee should not have stood seised to the first uses So if the husband had made a Feoffment in Fee of the land of his wife upon consideration and without any use expressed the wife should not have had a Subpoena because the Feoffee was not in privity of estate of the wiâ—â— And if cestuy que use for life or in Taile the remainder in Taile with divers remainders over in use had made a Feoffment to one that had notice he should not have been seised to the first uses causâ qua supra But otherwise it is of Commons Advowsons and such like appendants or appurtenants for if Tenant in Taile or husband in right of his wife make a Feoffment of a Mannor or of part of it with an Advowson appendant the Advowson at least after Presentment shall passe as appendant to the Mannor oâ— to part of the Mannor and not to the estate of the land which is discontinued by the Feoffment So if a Disseisor Abator Intrudor or the Lord by Escheat or the like shall have these things as annexed to the land or the possession of the land so that there is a difference between a use a warrantie and such like things that are annexed to the estate of the land in drivity and Commons Advowsons and other hereditaments that are annexed to the possession of the land And these Uses began first when the custome of property began and was brought in that one man knew his own from another The Originall of â—â— and why so much lands wâ—â—â—â—t in use Doct. Studâ— 9â— Coo. 1. 123. 12â— Stat. 17. H. 8. c. 10. in the preamble mans and then was to enjoy his own and not to be deprived of it without consent or order of Law for then he that had land had two things in him a possession of the land and power to take the profits of it and those being to be distinguished he might give the Free hold or Possession to another and take the profits himselfe and they were the rather allowed by the Law for a time as reasonable because they gave a man power to dispose of his land by Will which otherwise hee could not have done but in some speciall cases by custome of the place But in time this use was turned into an abuse and the greatest part of all the lands in the Kingdome especially in the time of the broyl between the houses of York and Lancaster were put in use partly of fraud and partly of feare which produced not a few inconveniences for thereby many were deceived of their just and reasonable rights as namely a man that had The mischief of uses cause to sue for his land knew not against whom to bring his Action or who was owner of it the wife was defrauded of her thirds the husband of being Tenant by the Curtesy the Lord of his Wardship Reliefe Harriot and Escheat the Creditor of his Extent for debt the poore Tenant of his Lease and other Purchasors of their