upon Condition that if D. dies living C. that it shall be lawfull for me to re-enter Quaere if this Condition be sufficient for me to enter upon an Occupant If a man commits Felony and the Lord grants his Seignory and after the man makes a Feofment upon Condition and is Attainted and obtains his pardon and after Re-enters for â—reach of the Condition and dies if the Occupant shall have the Land or the Lord or the Issue is the Question A. makes a Feoffment to B. Habendum to him so long as Pauls Steeple shall stand B. dies without Heir Quaere if the Lord may enter by Escheat or an Occupant shall have it Outlawrie IF a man grants to another one of his Horses until the Grantee hath made Election there is no property vested in him neither shall he forfeit it by Outlawry Parceners Partition A. seised of two Acres hath a Son and a Daughter by one venter and a Son by another grants a Rent out of one Acre to the Son who dies the Father dies the Daughters make Partition the Land charged is allotted to the youngest she shall hold it charged with all to the Eldest 34 Ass P. 15. A. hath Issue two Daughters and holds Land of the Eldest by Suite and an Hawke and dies the Daughters assign a third part to the Mother in Dower and then makes Partition Tenant in Dower shall not be contributory for any part of the Services for the Reversion remains in Parcenary between them two for they cannot make Partition thereof and then the whole Seignory is in suspence and also the youngest Daughter shall be discharged of the Tenure and yet if Land holden by an Hauke discend upon the Seignoresse and her Sister and they make Partition the Seignoresse shall have the Hauk but there no suite for by the Stat. of Marlbridge ca. 9. the Eldest ought to do it and the youngest is to be contributory but she being Seignoresse cannot do it to her self ergo c. But the Reason in the principall case why the youngest shall be discharged is because the Seignory is in suspence for parcel and it cannot be in esse for the rest But if a Tenant hath two Daughters and the Lord seises the youngest within age he shall distrain the other for the Moity of the Seignory and the Act of Law shall not prejudice him Quaere for the Seisure is his own Act. If one Sister be Seignoress to whom the Tenancy is descended she shall not have the Rent nor other Charge before Partition but if she had the tythes she should have had them after severance from the nine years before Partition for they lye in Prendre and she takes them as Parson Before Partition one Parcener makes a Lease of an Acre to I. S. for twenty years and they after make Partition so that that Acre is allotted to her it seems she shall out the Lessee for the Partition hath relation from the death of theAncestor and yet at this time she had full power to make a Lease of the Moity of it So it seems she shall avoid a Rent Charge granted by her Sister If the Husband makes a Lease of an Aere which is after assigned to his Wife by a Recovery in Dower upon a Title which she had at that time she shall avoid the Lease c. forall Quaere in both cases If one Parcener recovers pro rata against her Companion she shall avoid the Charge made by her in the Land recovered as an Exchanger shall do Land recovered in value after Partition by one Parcener shall be rateable A. seised of two Acres hath two Daughters and grants a Rent Charge out of one Acre to the Eldest and dies they make Partition the Eldest hath the Land Charged and the other being impleaded Recovers against the Eldest pro rata she shall hold the Land Recovered in value pro rata with the portion of the Rent If Parceners make Partition and one aliens in Fee a Stranger by a Title Paramount enters upon the other she shall not occupy the Land with the Feoffee for the privity is dissolved for she cannot recover pro rata If A. be seised of one Acre in tail and of another in Fee hath two Daughters they make Partition the younger hath the Acre in tail the Lord of whom the Acre in Fee is holden shall take notice of this Partition it seems otherwise for a Donor of an Acre in tail for he shall not be bound by that Partition unduly made no more than the Issue in tail shall be but the parties that made the Partition being of full age are concluded but if one Acre in tail be allotted to one and the other Acre in tail to the other the Donor is concluded If Partition be of Land in tail and a Rent is granted for equality of Partition that Rent shall be in tail 2 H. 7. 5. But if there be Parceners of two Acres one in tail and the other in Fee and she which hath the Acre in Fee grants the Rent to the other for Equality that Rent shall be but in tail but if that Rent had been granted to her which had the Fee it shall be in Fee for if she dies without Issue her Heir shall have it so long as the other hath Issue of her body for til that ceases thePartition stands but if there be four Acres three in Fee and one in tail and she which hath the third Acre grants a Rent for equality thatshall be a Fee Quia sequitur magis principale Three Parceners in tail make a Feoffment with Warranty the Eldest first and the youngest after dies without Issue the second hath Issue and dies the Issue brings a Formedon she shall recover a Moity of the part of the eldest and a moity of the part of the youngest and no more for the Warranty of the Eldest was collateral to the second for the part of the second for the other part she could not make her self Heir to her that made the Warranty but yet for the part of the Eldest the Warranty is Lineall to the second and youngest Daughter for they might Inherit as Heir to her and for the part of the youngest as to her self and her Heirs for their third part the Warranty of the Eldest is collateral for the youngest or her Heirs could not make themselves Heirs of that third part to the Eldest who made the Warranty so that the Warranty of the Eldest shall enure as aforesaid Then as to the youngest who died last her Warranty as to the second Sisters part is collaterall and to her Issue for they cannot make themselves Heirs to her who made the Warranty c. But as to a Moity of the Eldest 't is Lineall and as to the other Moity collateral for by possibility the youngest and the second might have had the part of the Eldest by Descent if the Eldest had died first as she did then if the youngest dies without Issue
so long and no longer And the Heir hath the Right of B and so the Disseisee cannot have an Action against B. and by the same reason he cannot have an Action against him that hath his Estate in respect of the first Disseisee So if the Heir in by descent had made a Lease for life to the Disseisee and a Stranger and the Disseisee confirms the Estate of the Stranger there the Disseisee hath no Remedy during his own life though the Heir re-enters Causa qua supra but his Heir shall have Remedy for it was but a conclusion And some say that the confirmation in the first case shall not extend to the Right that was suspended as a Release will do no more than if a man hath a Rent Charge and he and another disseise the Tenant of the Land and he which hath the Land confirms the Estate of his companion the Disseisee re-enters the Rent is revived for as the Rent was not grantable being suspended in the Inheritance no more may the Confirmation extend to it or touch it Two Jointenants for life of two Acres the Land is confirmed to them in Fee of one Acre to the use of one and of the other Acre to the use of the other in fee they are severall Tenants of the Freehold of the severall Acres for the Confirmation is drownd by the Confirmation in Fee to the Vse and the Freehold made according to the Vse as if it had been before the Statute of 27 H. 8. The Parson makes a Lease for twenty years the Ordinary confirms for ten being it is an intire thing it cannot be confirmed in part as a Confirmation to the Disseisor Tamen Quere for the Assent of the Patron cannot be like to that The Husband is Tenant for life the Remainder to the Wife for life a confirmation is made to them in tail how it shall inure Some think that they shall take the Estate by Intireties and not by Moities It may be said that the estate for life to the Husband the remainder to the Wife continues but if not then to the Wife for one Moity and a Moity in the Freehold shall be extinct c. Vide Baron Fem Wast Continuall Claim LAnd is given to Baron Fem and a third person and to the Heirs of the Bodies of the Baron Fem they have Issue the Baron dies Tenant for life aliens a Moity in Fee the Wife makes Continuall Claim the Issue dies without Issue the Wife may enter upon the Heir of the Feoffee who dies within the year after the Continuall Claime Quere It seemes though at the time of the Continuall Claim she had a Right of Entry yet now the Estate is changed and she shall not enter Quaere how Continuall Claim may be made by Tenant in common for the possession pro Indiviso If the Disseisee dies after he hath made Continuall Claim and within the year a Descent is cast the Heir of the Disseisee cannot enter for it gives only a Title for the advantage of the person who durst not enter But if the Descent had been in the Life of the Disseisee then the Heir of the Disseisee may take Advantage of it For a Title of Entry discended If Tenant for life with a Remainder over be disseised and makes Continual Claim dies he in Remainder shall avoid a Descent happening within a year after the Claim for his Interest was reduced Otherwise of a Son in the life of his Father he hath no Interest If two Jointenants are Disseised and one makes Continual Claim and then dies and after a Descent is cast Quere If the Grandfather be a Disseisor and dies seised within a year after Continual Claim made and after the year and before Entry the Father dies and the Son enters the Disseisee may enter upon him Quaere for some think the contrary Covenant videVse Damages LAnd is given to Baron Fem in Fee the Husband dies the Wife waives the possession and recovers Dower against the Heir she shall have Damages for when she refused the Husband shall be said to die seised and so within the Compass of the Statute If the Husband makes a Feofment and takes an Estate to himself and another in Fee the Husband dies the Wife shall not recover Damages for she recovers her Dower of the Estate which he had before and not of the Estate whereof he died seised So if he had retaken in Fee upon Condition c. For the Law says she is endowable of the First Estate and not under the Condition Daughter A Man makes a Lease for years and dies having a Daughter his Wife Enseint with a Son the Daughter confirms the Estate of the Lessee to hold to him for life with Warranty The Son is born and dies without Issue the Daughter enters upon the Lessee and upon a Re-entry she brings an Assize some think it maintainable But if the Son had Entred upon him an Ejectione Firmae lies A. hath two Daughters the Eldest disseises the Father the Father dies she hath Issue and dies the other Enters claiming her part of the Moity and she brings her Assize that was a Moot case If Tenant in tail discontinues and dies having a Daughter his Wife Enseint with a Son The Daughter Recovers in a Formedon and dies before Execution without Issue the Son born after shall not enter nor sue Execution If the Daughter recovers in value by reason of a Warranty of the Ancestor before the Birth of the Son the Son when he is born shall enter upon Her for he recovers as Heir and it comes in Lieu and so shall be in the same Degree as the first Land was A man makes a Lease for years rendring a Rent upon Condition and dies leaving a Son and a Daughter by one Venter and a Son by another the Eldest Son gets the Rent and dies the Daughter shall have the Reversion but the Condition is gone for she is not Heir If a Daughter enters by purchase or for Alienation in Mortmain she shall retaine against a Son born after A man hath a Park by Prescription in Land in Borough English and dies having two Daughters the Question is which of them shall have it Some think the youngest for a Park is nothing but Land inclosed and a Liberty in Land shall ensue the nature of the Land also a Park may be by Prescription 18 H. 6. 21. a. 1. H. 4. 4. One may have the Liberty of a Park without Allowance Then if Prescription can make a Park there is no doubt but that it may be of the nature of Borough English for the Comencement of it is not known 10 H. 7. 6. per Keble Vide Parceners Deed. A. makes a Feoffment of the Mannor of D. to which an Advowson is appendant by Deed and makes a Letter of Atturny to make Livery the Advowson shall not passe by the delivery of the Deed before Livery be made If the Mannor of D.
he shall retain against the Disseisee for the procurement does not make him a Disseisor 50 E. 3. 2. v. Lit. in Remit cont If the Issue in tail procure one to Disseise the Disseisor of his Faâ—ther whose Heir is in by descent against whom the Heir recovers the Issue shall retain it If the Disseisor makes a Feoffment and marries with the Disseisee he may enter in his Wives Right After a Dissent if the possession comes to the Disseisoâ— the Disseisee may enter for the Action remains to him after the descent If one Disseises Tenant for life to the use of him in Reversion and he agrees if he shall have the new Fee or the ancient for now he is a Disseisor ab initio If he had been a Disseisor immediately he had gained but a Freehold by Tort but now he Agrees to that which another hath and that is a Fee If one Jointenant makes a Lease for years of his part a Stranger enters claiming the Moity of the other who waives the possession that is a Disseisin to him though the Termer continues in possession for they were Tenants in Common Otherwise if the Termor had waived the possession and the other had continued in for the Reversioner cannot be out of possession when his joint companion held in Divorce A Reversion is granted to Baron Fem and to a single man and Woman in Fee the single persons marry and the Tenant Atturns then the single man and woman are divorced the Baron Fem shall have but a third part Land is given to I. and A. his Wife and to another Baron Fem in Fee they are disseised and I. releases to the Disseisor and then I. and A. are divorced for cause which hath relation A. and the Baron Fem bring an Assise leaving out I. Some think it is maintainable for when I. and A. are divorced yet the other Baron Fem shall hold the Moity to them for being the purchase took effect and vested by the Livery and at that time the Baron Fem not being divorced took a Moity which remains still A Lease for life is made to a Fem sole she marries the Lessor grants the Reversion the Husband atturns and after they are divorced yet the Wife cannot avoid the Atturnment A woman is divorced upon a surmise made by the Husband of a Precontract upon her part the Wife being seised of Land makes her Will and devises it away an Appeal then depending by the Husband to defeat the Divorce Quaere if the Appeal be not void being sued by the Baron for he is not the party grieved for he was the first Agent in the Divorce and therefore it ought to have ben sued by the Wife and so the Devise stands good 2 R. 2. Quare Impedit 143. Dy. 140. P. 46.4 H. 7. Peckams case 10 H. 7. 12. 24 H. 8. Ravishment 11. 39. E. 3. 33. A man marries an Insidel the Wife commits Adultery and then becomes a Proselite to the Christian Religion Quaere if this Adultery committed before her Conversion be a sufficient cause whereupon the Husband may sue a Divorce Dower LAnd is given to Husband and Wife in speciall tail reserving a Rent the Wife of the Donor brings Dower against the Heir of the Husband for the third part of the Rent A. having a Daughter dies his Wife enseint with a Son the Daughter disclaims the Lord Recovers in right of the Disclaimer a Son is born the Lord dies and the Land descends to his Son the Wife of the Lord brings Dower against him A. grants a Rent Charge in Fee to commence after the death of the Grantee who dies the Wife of the Grantee shall not be endowed and yet the Son takes as Heir But it was not in the Father and it shall not be Assetts in the Heir But if the Rent had been granted upon Condition that if the Grantee or his Heirs die their Issue within age that the Rent should cease until the Issue comes of full age if the Grantee dies his Issue within age his Wife shall be endowed but the Execution shall cease until the heir be of full age As if the Tenant be in Ward to the Lord and the Lord marries and dies possest of the Ward his Wife shall be endowed of the Seignory which was in suspence for the Freehold was in the Husband so in the last case before 24 E. 3. the Wife of the Father brought a Writ of Dower against the Heir within age and Recovered but cessat Executio until c. If the Heir doth Improve the Land the Wife shall recover her Dower of it as it is But if it be by building or other collaterall Improvement 't is otherwise Quaere if the Heir suffers the Houses to decay upon the Land if the Wife shall be endowed according to the value it was in the possession of her Husband or as it is now and shall be allow'd in Damages The Son of the Disseisor endows his Wife Ex assensu patris the Disseisee releaseth to the Disseisor if the Dower shall be avoided The Tenant Ceases for two years and after marries the Lord Recovers in a Cessavit the Tenant dies his wife shall be endowed against the Lord. If a Rent be reserved upon a Lease for life the Wife shall not have dower for he hath not a Fee neither shall the Heir have an Assize of Mortdancestor If a Disseisor grants a Rent Charge and is disseised and a Release is made to the second Disseisor the Wife shall not be endowed for her Dower is Executory If a Woman hath cause to have Dower of one and the same Acre as Wife to A. and B. If she be barr'd as Wife to A. yet she shall have it as Wife tp B. If a Lease be made to Baron Fem for the life of the Husband the Remainder to the Heirs of the Husband who dies the wife shall not have Dower for she cannot disagree to an Estate determined If Land be given to Baron Fem in Fee the Husband makes a Feoffment an Ancestor collateral of the Wife releases With Warranty and dies the Husband dies the Wife cannot disagree and claim her Dower where the Estate was bound and her Right determined by the Warranty If a Villaine purchase â—an Estate in tail the Lord enters and dies his Wife shall not have Dower for being the Law gave unto him his Entry the Law will not give more to him than the Villein might lawfully give which was an Estate for his own life If Tenant in tail the Reversion in the King be disseised the Disseisor dies his Wife shall not recover her Dower no more than if a Discontinuance takes away an Entry If there be two Tenants in Common and one hath a Wife and the Reversion is granted to both of them and he which hath the Wife dies the Wife shall be endowed of a third part of a fourth part if the Reversion passed severally for then the
of Land in Borough English which descended to the youngest Son and after the Tenancy escheats the Eldest being impleaded vouches himself to save the Intail but if the Land of the youngest shall be lyable is the question Lessee for life the remainder to the right Heirs of A. who is dead having a Daughter his Wife enseint with a Son the Lessor warrants the Land in forma praedicta the Son is born the Daughter cannot vouch by reason of the Warranty for the Warranty is a thing executory which cannot be deraigned but by the right Heirs of A. For if a Feoffment be made to the Son with Warranty and he dies without Issue and the Land comes from the Unkle to the Father he cannot take advantage of this Warranty as Heir to his Son so if Possessio Fratris makes the Sister Heir she shall not vouch 35 H. 6. 34. Danby but he shall be voucht as Heir for the possession so shall the Father so shall the youngest Son in Borough English but shall not vouch Vide Fitzh Voucher 94. 35 H. 6. 33. If Land be given to two brothers in Fee with Warranty to the eldest the eldest dies having Issue and the youngest dies without Issue the Issue of the Eldest being his Heir and he enters he shall not take advantage of this Warranty by Voucher or Rebutter for the Warranty was void having regard to the Survivor because his Title hath relation before the Warranty If the Eldest Son is voucht as Heir to the Warranty and the youngest as Heir in Borough English and the Eldest voucheth over if the Eldest or the youngest shall have the Recompence in value It would be unreasonable that the eldest should have it for he lost nothing for by the law the tenant cannot sue Execution against the Vouchee untill the demandant hath sued execution against him and in this Case execution was never sued against the Eldest for he hath no land and the youngest hath not the warranty by descent though he hath the land and so he cannot vouch and therefore it is hard he should be bard by it Wast LAnd is given to Baron Fem and to a third person the third person releaseth the Fem all his right and the Baron Fem makes a Lease of the whole for yeares and brings a writ of Wast against the Lessee The Lessee is not punishable in Wast if a house falls that was ruinous at the time of the demise and he may cut Trees to repair it so he may do if the Lessor covenants to repair it vid. 12 H. 8. 1. If a house with land is let upon which is a Wood without impeachment of wast for the house yet if the house becomes ruinous he may cut timber for the reparation and a Lessee may take timber for fier-boot if there be no other wood quod vid. 21. H. 6. 47. If a man makes a lease upon condition or that the Lessee is bound in an obligation not to do wast and that his estate shall cease If a Stranger commits Wast that is no forfeiture of the Lease for the condition extends only to the person of the Lessee vid. 3. H. 6. 17. But if a stranger commits Wast upon the Lessee for years or Guardian in Chivalry they shal render treble and shall lose the ward but Guardian in Socage shall not be punisht for wast of a stranger for the heir himself shall have an action If a Lease is made for life the Lessor dies having two Sons by divers venters the eldest grants to the Lessee that he shall be dispunisht of wast yet that shall not bind the youngest for he does not claim as heir to his brother but as an heir to his father who was last actually seised Fem tenant for life the remainder for years to I. S. who marries with the Fem and Commits wast quaere if the land be lost If tenant for life makes a lease for years and after enters upon the termor and commits wast and the Lessor recovers the Lessee shall lose his term A man shall not be punished for comming on the land to see if wast be committed The heir makes a Lease for years wast is committeed the wife recovers in Dower the heir shall have an action of wast in the tenuit A man makes a lease for twenty yeares without impeachment of Wast and the Lessor confirmes for forty years the Lessee shall be dispunisht for twenty years A man makes a lease rendring rent on condition that if the rent be behind that the Lessor shall reenter and retain until he be satisfied the rent out of the profits the Lessor doth enter and a stranger commits wast and then the Lessor is satisfied of the rent if the wast be punishable If one doth devise his lands which he hath for years and dies the Executors commits wast and then agree to the devise an action of wast lies against them notwithstanding the relation So if Lessee for years grants his term upon condition and the grantee commits wast and the Lessee for years enter for the condition broken yet wast lies against the grantee Where a man hath election to take two estates his committing of wast will be a determination of his election If there be Lessee for life the remainder for life and the Lessor grants the reversion to him in remainder quaere if he shall have an action of wast If Tenant for life makes a lease for years and enters and commits wast the tenant for yeares leases his term wast by the assignee of an infant or fem Covert shall take away the special right of Infancy Coverture or condition but otherwise if it had it been made by themselves Warranty GRandfather Father and Son the Grandfather makes a lease of an Acre for life and dies the Father being tenant in taile discontinues it in Fee with warranty and dies the tenant for life dies the Son enters into the Acre after his death and brings a Formedon the warranty of the Father with this Assets seemes no barr The discontinuee of a tenant in tail makes a Feofment on condition and a warranty collateral is made to the Feoffee of the discontinuee the discontinuee enters for the condition bro ken the issue hath no remedy against him If a Collaterall Warranty descends within a year upon him that hath Title to enter for Mortmain he cannot enter after for if he himself had re leased he could not have entred and the Warranty will bind him as well as his Release but Quaere if a collaterall Warranty extends to a Title of Entry If a man devises Land with Warranty that is void because the Father himself was not bound A Warranty made to a Disseisor is not destroyed by the Release of the Disseisee A Collateral Warranty shall not bar Execution of a Recovery in value for it is but a Title to which a Warranty does not exâ—end no more than to bar a Title of Entry for consent to a Ravisher or
for the Husband cannot take it immediately from his Companion therefore for him it is void and good for the Wife As if a Feofment be made to a stranger and the Wife of the Feoffor The Husband is bound in a Statute and after he and his Wife levy a Fine of the Wife's Land to A the Husband dies The Statute shall not be extended during the Wife's life for nothing passed from the Husband but the estate which he had in right of his Wife And A shall have the same Advantage which the Heir of the Wife should have had Tenant in tail enfeoffs one Daughter within age and dies she is remitted but the other Daughter shall not take Advantage of it Agreement IF I disseise one to the use of my self and A who after Agrees to the disseisin we are joint-tenants 21 Ass 49. If one sister in tail enters upon the Discontinuee of her Father claiming to her and her sister and the Discontinuee ousts her and she recovers in an Assise the other sister shall have the moyty by her Agreement But if I disseise one to the use of A. after twenty pounds received by me of the profits or to the use of my self for life and after to his use in fee there he shall have nothing by his Agreement for I cannot apportion the wrong If I disseise my Tenant for life to the use of A he shall have but a Free-hold by his Agreement If the Issue in tail within age by covin commands A to disseise the Discontinuee of his Father A disseises him to the use of B for life and after to the use of his own right Heirs B agrees A dies B dies the Heir of A enters and enfeoffs the Issue he is remitted because of his minority An Agreement cannot be to parcel of an Estate Aid IF Coparceners make partition and one has the Seignority and a Tenancy escheats and she is impleaded of that she shall not have Aid of the other Coparcener for Aid cannot be granted but of Land descended If one Acre is given to the eldest Daughter in Frank-marriage and another in fee descends to the youngest if she shall have Aid is the question Alien IF a Reversion be granted to an Alien and after he is made a Denizen and then the Tenant atturns he shall not take to his own use A Lease for years is made to an Alien upon condition to have Fee he is indenized and hath License to purchase and then performs the Condition The King shall not have the Fee for it hath not a Relation as to the devesting of the Fee further than the performance although that for Charges and Incumbrances it hath a larger Relation If an Alien Disseisor be made a Denizen the King shall not have the Land if the Disseisee doth after release unto him but if an Alien had been the Feoffee of a Disseisor it had altered the case for it is a new purchase in one case and but an extinguishment of a right in the other and it seems that the Issue of such an Alien born within the Realm shall be in ward for Land descended to him on the part of the Mother during the life of the Alien if he be not Heir apparent And a man born in England cannot make himself heir in special tail to a Baron Fem whereof one is an Alien neither shall he have an Appeal for the death of such a Father or Mother Alien If Land be devised to an Alien and he is made a Denizen and after the Devisor dies there he shall take by the Will for all takes effect by the death of the Divisor But in the case above if when the Office is found the Lease should be adjudged in the King from the beginning then it takes away the Condition and then he could not acquire a fee by his performance If a man seised in fee marries an Alien and makes a Feofment and she is made a Denizen and the Husband dies she shall not recover her Dower Annuity IF an Annuity be granted for the life of I and the Grantee releaseth all Actions of Annuity to the Grantor it seems he shall not have an Action of Debt for the arrerages after the release and after the death of I. for when they were due he had no remedy If a Rent charge is granted out of Land in Fee the Heir of the Grantee shall have his election to bring his Writ of Annuity and so shall the Executor of the Grantee if the Grant were for years And if the Wife brings Dower the Heir shall not say that he will take it as an Annuity for it must be determined by the bringing of his Action and if she be once endowed the Heir shall not have an Annuity of the other two parts for his Writ ought to be grounded upon the Deed and that for all or for none for there can be no apporcionment of an Annuity or personal thing Appendant IF an Advowson be Appendant to a Mannor and the Advowson is granted to one for life and then the Grantee is enfeoffed of the Mannor cum pertinentiis yet the Free-hold of the Advowson is not Appendant But if the Grantee had regranted it to the Grantor it had been Appendant But if A. makes a Lease of his Mannor for life saving the Advowson and after grants the reversion of the Mannor una cum Advocatione the Advowson shall never be Appendant to the Mannor again Husband and Wife make a Feoffment of the Mannor of the Wife to which an Advowson is Appendant the Feoffee makes a Feofment of one Acre with the Advowson the Husband dies the Wife recontinues the Mannor she shall present without any recontinuance of the Acre for it was not appendant to the Acre for if a man makes a Feofment of an Acre parcel of a Mannor cum pentinentiis nothing of the Advowson which is appendant to the Mannor passes If one hath a Mannor and makes a Lease for life of all the Mannor except one Acre now the Fee of the Acre is divided from the Mannor during the Lease for life but after the determination of the Lease it shall be appendant again Apporcionment TWo Joint-tenants by Twelve-pence the one grants what belongs to him upon condition the Lord grants the services of one and Atturnment is had the Condition is broken the Grantor enters he shall hold by Twelve-pence also for by the Grant no Apporcionment is made and then by the Grant Twelve-pence passed and Twelve-pence remain If tenant for years enfeoffs the Lord of one Acre the Seignory shall be Apporcioned A Rent is granted in Fee out of Land in Borough-English and at Common Law the Grantee dies leaving two Sons the eldest shall have all for the rent being entire cannot be Apporcioned and the eldest being Heir shall have all If a Rent charge be granted in Fee and the Grantee dies and his Wife recovers her Dower of the third part of the Rent the Heir cannot
Assets in the Heir in a Formedon or Debt for the remainder was never in the Mother for it commenced after her death But if a Rent Charge be granted to I. to commence after his death 't is otherwise for the Heir takes it by descent If Executors have a Villains in right of their Testator and enter into Land purchased by him it shall be Assetts although they have a Fee as Land descended to the Heir shall be Assetts to a Chattle viz. to a Debt of a Stranger The Grantor of a Rent Charge in taile einfeoffes the Grantee of the Land who makes a gift in tail of the Land rendring so much of the Services as he payâ— over to the Lord Paramount it seems that these Services shall be Assetts in the Heir for they are particularly reserved for the Land Assignee IF a Feoffment be made with Warranty to the Feoffee his Heirs and Assigns if he makes a Feoffment over and the second Feoffee re-enfeoffes the first Feoffee he shall vouch for he may be Assignee of his Father being he does not claim as Heir And the Lord by Escheat or Mortmain or of a Villaine or who enters for a Consent to a Ravisher shall not be said Assignees and yet they shall Rebutt If Tenant in tail be with Warranty to him his Heirs and Assignes his Feoffee in Fee shall not be said Assignee for he hath no part of the Estate tail If Land be given to One and his Assignes for ever and it is ganted to him and his Assignes that they shall have twenty Load of Wood yearly for ever Tenant for life grants over his Estate and dies the Assignee shall not have the Wood because his Estate is now determined Attainder A. Dyes leaving two Daughters the one is attainted of Fellony a Lease is made the remainder to the right Heirs of A. the other shall not take the Daughter that was attainted being living for one is not Heir alone but if the Father dies seised of Land a moity shall escheat If the Mesne grants the Mesnalty upon condition that if the Grantee pays a certain sum of Money to the Grantor that he shall have Fee and before the Day the Grantor is attainted of Felony and executed yet the Grantee shall have Fee for the Condition is become impossible to be performed by the act of the Grantor But if a Jointenant makes a Lease for five yeares upon Condition that if the Lessee does such an Act he shall have it for twenty years and before the day the Lessor dies now the Condition is void by the Surviver If a man grants a Rent Charge to begin at a day to come and before the day the Grantor is attainted of Felony yet the charge is good If a Remainder be limited to the right Heirs of A. who hath a Daughter and dies who enters and after a Son is born and attainted yet the Remainder shall not be devested out of the Daughter The Son endowes his Wife Ex Assensu Patris the Son is attainted of Felony it seems that the Wife should not retain her Dower for 't is the Dower of the Son for she claimes it from the Son and if she brings a writ of Dower of it Ne unques accouple in loyall Matrimony is a good Plea and if there had been a disseisin of it a Collateral Warranty shall be no bar to the Wife for she pretends no Title to it but by the death of her Husband and then the Warranty descends before her Title for if it descends after her Title it shall be a good bar And if she after her Dower so assigned be attainted of Felony and after hath her Charter of pardon for her life and after the Husband dies she shall retain her Dower for her Interest in it commenced after her Pardon And yet by her Attainder she forfeited all her Inheritance Free hold and Chattles Real If an Attainted person be enfeoffed to the use of another the possession cannot vest in the other but must escheat but he which is Attainted may be an Atturny Grandfather Father and Son the Father is Attainted of Treason and dies and after the Grandfather dies seised of Land the Lord of whom the Land is holden shall have it by Escheat and not the King For the Father had it not at the time of Attainder And being that the Grandfather dyed without Heir the Land shall Escheat So it is if the Father be Attainted of Treason and the Grandfather dies leaving the Father The Issue in tail is Attainted of Felony and is pardoned and his Father dies and a Stranger having cause of Action against whom he shall bring his Action is the Question Some say that the Donor hath the Free-hold in Law as if Tenant in tail dies leaving his Wife Enseint Others say there is none against whom the Action may be brought as if Tenant for Life grants over his Estate to B. who dies now before Entry there is none against whom the Action may be brought Tenant in tail makes a Feoffment within Age and is Attainted of Felony his Issue shall not enter for he is disabled in blood to take advantage of the Infancy because the Infant had no Heir A. Covenants upon a Marriage to stand seised to the Vse of another and before the Marriage the Covenantee is Attainted of Felony yet upon the Marriage the Vse will rise as a Lease for life with a Condition of Accruer if the Lessor be Attainted yet the Estate shall enlarge Tenant is tail is disseised and releaseth to the Disseisor with Warranty and then is Attainted of Felony and hath a Pardon and dies this is a Discontinuance for if he had purchased Land after his Pardon it should descend to his Heir then the Warranty being in Esse at the time of his death there is no Impediment but that it should descend But if Tenant in tail who hath a Warranty annexed to his Estate be Attainted of Felony and Executed his Issue shall not Inherit the Voucher by reason of the Warranty although he hath the Land for the Warranty is our of the Statute de Donis c. which speaks of Lands and Tenements But some think that by the Equity of the Statute it is preserved as well as Charters 21 H. 6. 2. p. Markham 9 H. 6. 60. Cott. p. Charters Tenant in tail makes a Lease not warranted by the Statute and dies the Issue accepts the Rent and is Attainted of Treason if the King shall avoid it Quaere If the Grandfather be Tenant in tail and the Father is Attainted of Treason and Executed yet the Son shall Inherit as Heir to the Grandfather If A. commits Felony and the Lord grants his Seignory and after A. makes a Feoffment upon Condition and is Attainted and hath a Charter of Pardon and after re-enters for breach of the Condition and dies If an Occupant shall have the Land the Issue or the Lord is the Question Atturnment TEnant in tail
shall hold it discharged and some think he shall If A. makes a Lease for years upon a collaterall Condition and the Lessee makes a Lease for 20 years and then surrenders to the Lessor it seemes to some that the Condition for the rest is extinct for he hath part of the estate by his own Act so that if he should re-enter he could not be in in the same manner as he was before for he cannot avoid all the estate If a Feoffee upon condition make a Lease for life and after the Feoffor releaseth the Condition to him in Reversion the estate for life is discharged of the Condition and it seems to them all one viz. a Release in Deed and in Law And Note if Feoffee upon Condition makes a Lease for life a Release of the Condition to Tenant for life shall extend to all the Condition against the Feoffee And it is cleer if there he Feoffee upon Condition of two Acres and the Feoffor releases the Condition in one it remains in the other as it shall be of a Warranty annexed to two Acres for the Condition is several as the Right is and shall remain in part of the Land as the Right shall do But if the condition had been by two or to two there a Release by one or to one dischargeth all the Condition as it shall do a Warranty but if a man hath two Acres one to him and his Heirs Males and the other to him and his Heirs females and makes a Lease for years of both of them rendring a Rent upon Condition and dies having a Son and a Daughter the Condition remains for the Son in one Acre and is extinguished for the other And if Lessee upon Condition surrenders one Acre it remains for the other Tenant for life makes a Lease for years upon Condition to have it for the life of Tenant for life the Lessee dies and his Executors perform the Condition yet the Freehold shall not accrue to them For when the Lessee for years died the Condition was gone for the Executors are not capable to perform the condition to increase a Freehold although they may to encrease a term for the one is testamentary and the other not Vide Infant Fem Covert Entry Rent Confirmation LEssee for life makes a Lease for years rendring a Rent the Lessor confirms the Estate of the second Lessee Tenant for life dies within the term and the Lessor distrains and avowes for the Rent some think he cannot Tenant for life grants a Rent charge in Fee the Lessor joins in a Feofment of the Land the Rent shall indure for ever for it is the Feoffment of the Tenant for life and the confirmation of the Lessor If a Disseisor takes a Confirmation of the Lord to hold by lesser Services and the Disseisee releases to him yet he shall take advantage of the Confirmation If there be two Tenants in Common for life and a Confirmation is made to them and their Heirs they are Tenants in Common of the Fee as they were of the Freehold for a Confirmation inures according to the nature of the estate upon which it inures and a Confirmation does not alter the estate If Land be given to two men and the Heirs of their two bodies and the Donor confirms the Land to them in Fee they are not Jointenants of the Fee If a Disseisor grants a Rent Charge to the Disseisee and he grants it over and after re-enters he shall hold it discharged for it cannot inure as a Grant and as a Confirmation If there be Lord Mesne and Tenant each by Fealty and twelve pence the Lord confirms the estate of the Tenant to hold by one penny that Confirmation is void for want of privity for there ought to be an immediate tenure where it is to be abridged As if Tenant for life makes a Lease for years and the first Lessor confirms the estate of the Lessee for years that is void for want of Privity So if Tenant in tail makes a Lease for his own life and the Donor confirms that will not enlarge his estate Lord Mesne and Tenant each of them holds by twelve pence the Mesne is outlawed in Felony the Lord confirms the Estate of the Tenant to hold by one penny the Heir of the Mesne reverses the Outlawry by Error and distrains and avows for twelve pence There is Diversity viz. if the Tenant dies without Heir the Law cast the possession of the Tenancy upon the Lord so that he hath the possession in Law before Entry But if the Tenant be attainted of Felony there the Lord hath not the possession either in Fact or in Law before Entry for if the Tenant continue twenty years in possession after the Attainder he shall be said to be Tenant then here the Law doth not cast the possession of Mesnalty upon the Lord and so there wants that privity between the Lord and the Tenant which is requisite to the deminishing of the Services Then here the Confirmation inures to prove his Agreement to the Escheat or otherwise it shall be void which the Law will not suffer If the Mesne grants the Mesnalty to the Lord Par auter uge and after the Lord had confirmed ut supra and after cesty que vye dies there the Mesne shall hold according to the Confirmation for the Fee of the Seignory was not in suspence because he had it but par auter vye If a Fem hath a Lease for twenty years and the Lessor confirms to the Baron for forty years who dies the Fem shall have the residue of the twenty years Quod nota If a Disseisor makes a Gift in tail or Lease for life to A. to whom the Disseisee confirms yet after the estate determined he shall enter upon him in Reversion for the estate is only fortisied but if the Confirmation had been to the disseisor he cannot enter upon the particular Tenant But if the Disseisor had given c. to A. and B. and to the Heirs of A. and the Disseisee confirms the estate of B. Quaere But it is cleer if he had confirmed the Estate of A. he should never enter upon his Heirs for if a Disseisor gives Land to C. in tail the Remainder to the right Heirs of C. and the Donor confirms the estate that shall go to the Fee And if a Disseisor gives land to A. for life the remainder to B. for life and the estate for life to A. is only confirmed Quaere If a Disseisee where his entry is taken away and a Stranger enters upon the Heir in by discent confirms the Estate of the Stranger though his confirmation gives no possession of the Freehold yet his ancient Right is gone for ever But if the Heir who is in by discent were disseised by A. who makes a lease for life to B. and the first Disseisee confirms his Estate and the Heir enters the Disseisee hath no remedy during the life of B. for the Confirmation continues
be given by Deed with all the Woods and within the Deep there is a Letter of Atturny to make Livery if Livery be not made yet his Executors shall have the Wood. But if Livery be made then the Wood shall go along with the Land If A. requires another orgives him authority without Deed to write seal and deliver a Grant of a Rent Charge out of the Land of the Grantor in the name of the Grantor which is done the Grant is good for if I make a Grant and command one to deliver it it will be good without Deed. So if I by Paroll deliver it him as an Escrowle to be delivered as my Deed upon Condition to be performed that is good But an Authority to make Livery must be by Deed. Neither shall a Woman aver the Assent of the Father for Dower Ex Assensu patris without Deed. Neither can the Lessor Authorize the Lessee to commit Wast without Deed. If an Infant delivers a Deed which bares date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date no more than a Fem Covert otherwise every Infant may be deluded Debt LEssee for forty years makes a Lease for ten years rendring a Rent the first Lessee surrenders the Lessor brings Debt against the second Lessee Quaere A man shall not have Debt for Releif or Escuage granted unto him for it is mixt in the Realty but his Executors shall but he must distrein So the Lord shall not have an Action of Debt for Ayd pur file marier or pur fair fits Chivalier But if he dies before it be levied the Tenant shall be discharged of it An Action of Debt shall not be brought against the Heir and his Brother in Borough English where the Eldest hath nothing by descent as it shall be against the Heirs in Gavel Kind for there he may have a joint judgement against all and not against the Eldest in the other case for he hath nothing upon which it may be levied Quod nota An Action of Debt brought by Executors shall be in the Detinet only although it be for Arrears of Rent incurred after the death of the Testator So it shall be against a man acccomptable to the Testator A Seignory is granted for years the Rent is Arrear and the Tenant dies the years expire if the Grantee shall have an an Action of Debt against the Heir because it was due in the time of his Father and also some was due in his own time or if he shall have an Action of Debt against the Executors for that which was due in the Testators life time or is without Remedy Some say that the Heir shall not be charged in Debt if the Father die not oblige himself and his Heirs expressely and the Executors shall not be charged for they were not chargeable by the death of the Testator for at that time the Grantee could not have an Action of Debt but his remedy was by distresse for then the years were not expired and so no remedy 9 H. 7. 17. a. Co. 4. 49. An Annuity is granted for the life of A. the Grantee releases all Actions of Annuity he shall not have an Action of Debt for the Arrerages although that A. dies afterwards Devastavit vide Executor Devise A Woman hath Issue a Son and by another Husband hath Issue another Son the second Husband devises Land to the Wife for life the Remainder to the next of the blood of the Wife The youngest Son shall take in Remainder although it be true that one is not nearer of blood to the Mother than the other and the Eldest is of the most worthy blood yet he is not neerest and so it is uncertain who should take according to the letter of the Will yet the Intent which is always to be considered in Wills shall be construed in Favour of the youngest because he was Issue of the Devisor Pasc 5. Eliz. A great Case was argued in the Exchequer There were three Brothers the second brother purchased Land and devised it to his Son in tail and if he died without Issue that then it should remain to the next of the Kindred of the Lineage of the Father the Eldest Son was then dead having a Son it was adjudged that the Son of the Eldest should have the Land for he is next of the Lineage For Lineage shall be taken in a Lineall descent which is the most worthy Line Dy. 333. pl. 29. A Devise to the next of Blood the Son of the Eldest Brother shall have it before the younger Brother If Land be devised upon Condition or rendring a Rent that is void for it cannot be good in either case except the Reservor might take advantage of it and the Heir cannot have that which his Ancestor could not And if a man devise Land with Warranty that is void because the Father was not bound But to some there seems a Diversity for in the last case there is a Charge to the Heir and in the first it is for his advantage If the Lord devises Land to his Villein this is an Infranchisment against the Heir and yet he was the Villein of the Heir when the Devise took Effect A man having three Daughters devises to themâ— hundred pound a piece for their marriage Portions and if any of them die before their Marriage then the other should have her Portion by Survivor one dies in the life of the Father the other shall have three hundred pound after the death of the Father and yet nothing survived for she had nothing in possession yet they shall take it by the intent of the Devisor for when he says that if any of them die before their Marriage that the other shall have her Portion this makes it in nature of a Remainder and then though the first Devisee does die in the life of the Testator yet he in Remainder shall take the Estate per Manwood Dy. 127. P. 59. As a Devise to a Monk the Remainder to another the Remainder is good A. Devises Land upon Condition and if the Condition be broke that his Executors shall sell the Land the Devise as to the Executors is void for the Heir must enter for the Condition broken and then he shall hold it discharged of all Conditions A. Devises twenty pound to B. when he arrives at the age of six and twenty years and if he dies before he Devises it to C. B. releases to the Executors of A. before he attain◠〈◊〉 age of six and twenty years if it shall be a Bar Quaere If A. Devises twenty pound yearly for twenty years the Devisee hath no Remedy for his not Isâ—uing out of any Land for he can not take it as a Legacy and an Anâ—â—â—â—y does not lie against Executors for the Testator was never charged A Jointure cannot be made by Devise for Land was not then Devisable and the Wife
Reversion and the Fee are Executed for the fourth part A Gift in tail is made rendring during the life of the Donor Socage tenure and after his death Knight service the Wife shall be endowed of the Knights service If a Rent be granted for life and after by another Deed the Grantor releases all his Right in the Rent and if it be behind that the Grantee and his Heirs shall distrain the Wife shall not be endowed for it is still but a Rent Seck and the distress a Penalty 8 H. 4.18 A Disseisor having a Wife makes a Lease for life the Lessee makes a Lease to the Wife for her life the Husband accepts the Deed and agrees to it the Husband dies the Wife disagrees to the Lease the Lessor Enters against whom she brings Dower It is cleer if a Disseisor having a Wife makes a Lease to A. for life who makes a Lease to B. for life and the Disseisee releaseth to B. the Wife of the Disseisor shall be endowed for the Release does not countervail an Entry and Feofment If a Disseisor be Disseised and the Disseisee releaseth to the second Disseisor that takes away the Dower of the first Disseisors Wife But in the first casethe Husband is remitted and no possession in the Wife whereupon a Release may operate and so she may disagree and claim her Dower If an Estate be confirmed in a Rent Seek and if it be behind that it shall be lawfull for him and his Heirs to distrain the Wife shall not have Dower for it is stil but a Rent Seck and the Distresse but a penalty Tenant in tail of a Rent discontinues it with Warranty the Issue having a Wife is barr'd in a Formedon by the Warranty and Assetts yet his Wife shall be endowed for the Grant was void by the death of Tenant in tail and the Issue had possession in Law and might have distrained and though he determined his Election yet it shall not prejudice his Wife If the Husband disagrees to a Remainder the Wife shall not be endowed otherwise to a Dissent If a Rent Charge is granted the Grantee dies the Heir cannot prevent the Wife of her Dower by bringing his Writ of Annuity The Son endows his Wise Ex Assensu Patris the Son is attainted If she shall retain her Dower Some think she shall not for she claims from the Son and Ne unques accouple in loyall Matrimony is a good plea. If Tenant for life surrrenders upon Condition and the Lessor marries and dies the Wife is endowed against the Heir the Lessee enters for the Condition broken the Wife shall not have the Reversion for the Freehold which was the Wives Title is taken away by the Entry If the Grandmother recovers Dower against the Mother she hath taken away all the estate of the Mother for she comes in upon an Eigne Title But otherwise if the Father had been infeoffed So if the Lessor disseiseth his Tenant for life and marries and dies and the Wife is endowed by the Heir the Lessee enters c. And if Lessee for life had died before the Wife had been endowed she shall not be endowed for the Heir was Remitted or if she had been endowed and the Lessee had died the Heir shall out her If the Mother recovers Dower against the Son the Grandmother recovers Dower against the Mother and dies the Son shal enter and not the Mother But if the Dower of the Mother had been by Assignment of the Heir it had been otherwise For he shal be concluded by his own Assignment Quaere For some think the Reversion is not taken away from the Mother in Casu penultimo If a Feoffment be made to A. to the use of B. the Wife of A. shall be endowed A. marries and fells his Land his Wife arrives at her age of nine years the Husband dies she shall be endowed though the Husband had no possession when she was nine years old For if the Husband aliens his Land and after the Wife is attainted and pardoned the Husband dies she shall recover her Dower If a woman Elopes the Husband aliens his Land and after they are Reconciled she shall have her Dower for in these cases the Title of Dower is not consummate until the death of the Husband But if a man marries an Alien and then sells his Land and she is Endenized and the Husband dies she shall not have her Dower If a Tenancy Escheats the wife of the Lord shall not be endowed of the Seignory A woman Intitled to have Dower disseiseth the Tenant and she is disseised by another to whom the Disseisee releaseth she shall not have her Dower for her Dower was suspended in the possession of the Disseisor as well as if it had been in her own possession for the Disseisor is in as the woman was and though her Dower should have been Revived if the Disseisee had entred yet this Release doth not amount to an Entry and Feoffment If Land be given to A. and his Heirs Males as long as he hath Issue Female of his body A. dyes having a Daughter the Wife is endowed and the Daughter dies without Issue the wife loseth her Dower for there is a difference between a Condition in Deed and in Law for if the Issue of Tenant in tail dies without Issue yet his wife shall keep her Dower for it is a Condition in Law And yet if an Estate tail be made upon Condition that if the Donee dies without Issue that it shall be lawful for the Donor to re-enter the Wife of the Donee shall not lose her Dower for the Condition does not take effect untill the estate be determined by the Condition in Law upon which determination she is endowable A. seised in Fee grants a Rent Charge and aliens and takes an Estate in Fee-simple or in tail and dies seised the Wife Recovers in Dower and then she surmises that her Husband died seised and prays a Writ of Enquiry of Damages 14. H. 8. 6. She shall hold it charged for she hath admitted her self dowable of the second Estate A. has a Wife and is seised of four Acres and makes a Feofment of three of the Acres with Warranty and dies the Wife brings her writ of Dower against the Feoffee and he vouches the Heir Now if the Wife may stop the Judgement viz. That she shall not recover immediately against the Heir is the question for then she hath lost her Dower of the fourth Acre as some think she hath because it was her own folly that she did first recover her Dower of that Election IF a Rent be granted in Fee and the Grantee grants it over for yeares the Grantee for years hath no Remedy if it be denied him for he shall not have a writ of Annuity for the Election is given only to the first Grantee and his Heirs and the Election runs only in privity If two Acres are given to A. Habendum the one in Fee and
granted to commence after the death of the Grantee the Heir shall take it by Descent A. makes a Feossment upon Condition and if it be broke that it shall be lawfull for him to reenter during his life he shall enter by expresse Reservation and after his death his Heir shall enter by the provision of the Law If an Encroachment of Services be made upon the Husband if the Wife be endowed she shall not be contributory but the Heir cannot avoid it A Seignory is granted for years the Rent being behind the Tenant dies the years expire if the Grantee shall have Debt against the Heir of the Tenant for the Rent due before and after the death of the Tenant Some say the Heir shall not be charged unless the Tenant had bound himself and his Heirs by express words and it shall not be esteemed the proper debt of the Heir If A. hath a Daughter who hath a Son a Remainder is limited to the right Heirs females of the body of A. the Son shall take the Remainder for he is a purchaser but he shall not have the land by descent which was given to A. and the Heirs females of his body 20 H. 6. 43. P. Newton Lessee for life the remainder to the right Heirs of A. who hath a Son who dies without issue the land shall descend to the Heirs on the part of the Father for the Son takes by purchase and as Heir to A. so that the Heir of A. must take it If land be given to a man and to his Heirs on the part of his Mother begotten and his Mother is dead and he dies without issue the Heir on the part of his Father shall take Quaere If a man makes a Gift in tail of Land on the part of his Mother reserving a Rent and dies without Issue the Heir on the part of the Mother shall have the Rent as incident to the Reversion If a man binds himself and his Heirs in twenty pounds and dies and his Executors have ten pounds onely an Action of Debt lies against the Heir for all for if the Creditor makes choice of the Executor he cannot have any remedy against the Heir for the rest If the Obligor makes the Obligee his Executor and leaves ten pound and the Debt was twenty he may detain that and bring an Action of Debt against the Heir for the rest for it is a apporcioned by the Act in Law If Land be given to one and the Heirs males of his body the Remainder to the Heirs Females of his body the Daughter of the Son shall not have the Land If Land be given to one and the Heirs males of his body and to the Heirs females of his body if he hath Issue male and female they shall take by Moities by descent severally If a Woman hath three Sons by severall Husbands and Land is given to her and to the Heirs of her body by the first and second Husband begotten the two Sons shall take severally by Moities and yet the Mother had an Estate A. having two Daughters one is attainted of Felony a Remainder is limited to the Heirs of A. the other shall take nothing If a Remainder be limited to the Heirs of B. who hath a Son who is attainted the Remainder is void and the Fee rests in Lessor Land is given to A. for life the Remainder to B. for life the Remainder to the Heirs of A. who dies B. enters and dies a Stranger abates the Heir of A. shall have a Writ of Right upon the possession of A. and if Land be given to C. and D. and to the Heirs of C. who dies and a Recovery is had against D. and he dies the Heir of C. shall have a Writ of Right of all the Land A. binds himself and his Heirs in twenty pounds and dies the Executors have Assetts the Obligee releaseth to the Heir all Actions of Debt the Executors pay the Assetts to other Creditors The Obligee may have an Action of Debt against the Heir for at the time of the Release he was not intitled to have an Action against him but if the Executors or the Heir had no Assetts at the time of the Release and after the Heir recovers Assetts the Release will bar him If A. makes a Feoffment of Land which he hath on the part of his Mother to the use of himself and his Heirs it shall be to the use of the Heirs on the part of his Father if he dies without Issue A Fem sole hath a Rent Seck and marries the Tenant of the Land grants to the Husband and his Heirs to distrain for the Rent the Husband and Wife die without Issue the distress is extinct for the Heirs of the Husband are onely privy to distrain A Condition does descend upon the Heir at Common Law Incertainty IF one inseoffs another of twenty Acres viz. of one to the use of A. and does not shew of which Acre A. takes nothing by the Feoffment for the possession cannot be executed for it was not certain which are passed to A. and A. cannot have Election for he is not privy If a Reversion be granted to one and after to another and the Tenant atturns to both neither of them shall take for the incertainty If Land be given to a Man and a Woman upon Condition that which of them first marries shall have in Fee and they intermarry neither of them shall have Fee If the Reversion be granted of black Acre or of white Acre if Atturnment be good Quaere for the incertainty A. gives two Acres to B. Habend the one for life the other in Fee without Deed rendring a Robe or a Rent and doth not shew which he shall have for life A. lets two Acres rendring a Rent on Condition to be performed by the Lessee that he shall have Fee in one Acre not shewing which and makes Livery of both Quaere Infant IF an Infant inseoffs two and at his full age releaseth to one it inures to both If an Infant be forejudged he is bound for ever but if he makes a Feoffment of a Mannor and the Feoffee is forejudged yet the Infant may enter into the Mannor and distrain for the Mesnalty the reason is because in the first case he was party to the Record and in the last case the Forejudger was against the Feoffee who had a deseasible Title A Recovery in Wast against an Infant will bind him but so it will not against his Grantee for he had a Title to defeat his Estate so in a Cessavit Conditions and Forfeitures that will bind a Fem Covert will bind an Infant If an Infant makes Livery within view he shall not have an Assize if the Feoffee enters for it is more than a Livery in Law If an Infant Disseisor makes a Feoffment and a Dissent is cast and the Disseisee releaseth to the Heir yet the Infant shall have a Dum fuit infra aetatem for he demands the
possession to which he had more right than the Disseisee had As if the Heir who is in by Descent brings an Assize against his Disseisor it is no plea for him to plead the Release of the Disseisee Causa qua supra If a Reversion be granted to an Infant and the Tenant atturns at his full age yet he may disagree for the Grant which was the principal was in his minority If an Infant makes a Lease to commence in futuro and after makes a Feoffment being either at full age or under age the Feoffee shall not avoid the Lease If an Infant delivers a Deed bearing date two years after and at the end of the two years he is of full age he shall not be Estopped to shew the delivery before the date If a Fem Tenant in tail marries an Infant who aliens and dies the wife cannot enter upon the Feoffee for she is not privy in blood to the Infant and privy in Estate onely will not do As if there be two Jointenants and one is a Minor and they are disseised and a Dissent cast the Infant dies the Survivor cannot enter as the Infant might Neither shall a Lord by Escheat or Donor take advantage of Infancy If Land be given to an Infant and his Heirs Females and he hath a Son and a Daughter and aliens and dies his Daughter cannot enter for she is but a speciall Heir Quoad hoc In the principall case if the Wife had been Tenant in Fee simple the Heir of the Infant shall not enter upon his alienation as Litt. says for the Wife had the Right and a Title of Entry which was in Right cannot descend to the Heir of the Husband but in this case being the Husband hath given a Fee simple and had but an Estate in tail in Right of his Wife so that more is given than he had in Right of his wife makes this case more doubtfull than Litts but yet it seems the Heir may not enter for he cannot have the same Estate which his Ancestor had and the Right of the Estate tail survives to the Wife for if Land be given to an Infant in tail who aliens and dies without Issue his collateral Heir cannot enter for the Estate is determined which the Infant had at the time of the Gift for if an Infant be Tenant Par auter vye and aliens and Cesty que vye dies the Infant himself cannot enter 5 E. 4. 5. But in the principall case if the Infant had made a Gift in tail his Issue might have entred by reason of the Reversion but otherwise where no Estate descends to the Heir If Tenant in tail to him and his Heirs Females aliens and dies leaving Issue a Son and a Daughter the Son shall not enter no more shall the Daughter so of the youngest Son in Borough English If Tenant in tail infeoffs within age and after is attainted of Felony his Issue shall not enter for he is Disabled in blood If an Infant be disseised and a descent cast during non-age and after he comes of full age the Heir of the Disseisor dies before his Entry the Infant may enter for the Heir was never possest for he had but a possession in Law Joinder in Action IF two Parceners dye before Partition and a stranger abates the Issues shall not join in a Mortdancester for the Stat. of Gloucester ca. 17. is only when one Right descends to divers but every issue claims her right from and by her Mother so that severall Rights descended to them and so out of the Stat. and is as it was at the common Law and therefore if Parceners are disseised their issues shall not join in a Writ of Entry but shall have severall Writs in respect of their severall Rights as they shall have severall Formedons If one hath cause to have a Writ of Ayel another of Besayel they shall not join for they have cause to have severall Writts But where one is intitled to have a Writ of Mortdancester and another Ayel or Besayel there they shall join But if none of them may have an Assize then there is no Remedy by the Statute 2 E. 3. 34. 48 E. 3. 14. 24 E. 3. 13. If I recover in an Assize and after I am disseised by the same person and another I shall not have a Redisseisin for it must be against the same person If two Parceners make partition upon Record of an Advowson the Eldest presents first and after the youngest and the Eldest and a Stranger present in the turn of the youngest the youngest shall not have a Scire facias against them for the Stat. of Westm 2. does give it against those that were parties to the Record but she may have it against her Sister But in the first case a Redisseisin doth not lie against the Redisseisor for he may plead Jointenancy but in the last case it is no plea that another presented with her for she may have a Quare Impedit against both or several Actions as a man may in Trespasse made by two So if the Lord distrain his Tenant and he sues a Replevin and after the Lord distrains the beast of a stranger and another beast of his Tenant the Tenant shall have a Recaption But if the Lord had distrained again the beasts which his Tenant and the stranger had in common there he could not because for the last distress they ought to joyn and the stranger cannot join in the Recaption If a stranger makes a Rescous to the Lord the Lord shall not have an Assize against him alone without the Tenant because he cannot be said Tenant of the Rent but against the Pernor he may have an Assize only And if there be Lord Mesne and Tenant and the Tenant makes Rescous to the Lord â—an Assize is not maintainable only against the Tenant And if there be Lord two jointenants Mesnes and Tenant and one of the Mesnes and the Tenant makes Rescous the Lord shall not have an Assize against one only but he ought to name both the Mesnes Two Fems Jointenants in Fee have Husbands who make severall Feofments of their Moities and die the Wives shall not join in one Writ of Right for their Right was discontinued at several times So if one Jointenant disseiseth the other and makes a Feofment within Age and dies or if two Infants Jointenants make several Feofments and one dies the other hath no Remedy for the Moity but otherwise if wrong had been made to them at one time though severall wayes If there be issue of two Parceners one dies and the other endows the Wife one Action shall be maintained against both v. 9 E. 4. 14. against Tenant by the Curtesie and the other Parcener 21 E. 3. A Scire facias brought against Tenant by the Curtesie and the other Parcener and good Land is given to four Habendum one Moity to the first two the other Moity to the other two the first two are Jointenants with
first Lease for a Lease for years is nothing but a Contract If a Lease be made for ten years to commence at Michaelmas and after he makes a Lease for twenty years to commence at Easter the second Lease is good for ten yeares though the first Lessee surrenders before for it was void for ten years at the first by the same reason if one makes a Lease for life and after makes a Lease for years to commence presently the second Lease is void although the first Lessee dies within a year after If Lessee pur auter vye makes a Lease for twenty years by Indenture and after purchaseth the Reversion in Fee and Cesty que vye dies the Lessor may enter upon the Lessee although the years continue for he hath a new Estate and may confesse the Conclusion and avoid it But if A. lets Lands in which he hath nothing and after purchaseth the Land the Lessee may Estop him although he had not any Estate at the time of the Lease so he cannot confesse the Lease and avoid it as he may in the other case for in this case the Lease took effect by way of Estopple but in the other case there was an Interest conveyed at first If the Patron grants the next avoidance and after he the Ordinary and Incumbent make a Lease of the Rectory for twenty years the Incumbent of the first Grantee shall avoid the Lease but if he dies during the Lease the Lessee shall enjoy it during the rest of the years against the Successor And if Land be given to Husband and Wife and to the Heirs of the Husband he makes a Lease for years and dies after the death of the Wife the Lessee shall enjoy the Residue of the years against the Heir of the Husband for the Lease did once take effect But where a Lease for life is made and a Lease for years to begin presently that was void at the beginning against all persons and therefore can never take effect If the Donor disseiseth the Tenant in tail and makes a Lease for years and the Tenant in tail dies without Issue the Lessee shall have the Residue of the term against the Donor but if Tenant in tail makes a Lease for years and the Donor confirms and the Issue outs the Termor and dies without Issue the Lessee shall not enjoy his term for in the one case he claims from the Donor and in the other from the Donee If a Lease be made to A. for life and twenty years over he shall have the years although livery be not made of the Land If a lease be made for the lives of A. and B. and A. dies the lease shall continue for the life of B. But if two make a lease for sixty years if they two shall so long live if either of them die the Estate is determined for that was not a limitation but a Condition But if a lease be made during the time that A. and B. shall inhabit within London and one of them dwells in another place the lease is determined for it is a collaterall determination If I licence one to occupy my land until the Corn that is growing upon him is ripe that is a good lease Lessee for twenty years makes a lease for ten years and then makes a lease to the same lessee for ten years to commence after the determination of the first ten years the last ten years are not out of the first lessee and therefore the second lessee shall have the Rent which was reserved by the first lessor during the first ten years Quaere A. makes a lease for twenty years and then makes another lease for forty years to C. to commence after the expiration of the first lease and then he makes a lease to the first lessee for thirty years the lease of C. shall not begin presently for nothing extinguishes and avoids the lease but the taking the second lease And then the lease to C. is an impediment that the second lease cannot commence and therefore the first lease is not determined Tenant in tail marries and makes a lease for years the Wife endowed shall avoid the lease for her time but after her decease the lease will stand good against the Heir if the Heir accepts the Rent If Tenant in tail makes a lease for years and marries and dies without issue the Donor avoids the lease and the Wife recovers her Dower the Lessee shall enjoy it against her A. makes a lease for forty years Provided that if B. dies within the term that it shall be but for twenty A. dies at the end of four and twenty years the lessor brings an Action of Waste for waste done between the three and twenty and four and twenty years some think it is maintainable in the tenuit for the term continues until the death of B. If a Rent had been granted for forty years with such a Proviso and he dies ut supra the Tenant of the Land may have an Action of Accompt for the Rent received after the twenty years for now upon the matter the Grant ended at twenty years If a Lease be made of Land to me during my life and the life of B. that is but an Estate for my own life for the greater drowns the lesser If a Lease be made to two for forty years if they shall so long live and one dies the Lease determins for it is a Condition and not a Limitation So if the Lease had been so long as A. and B. shall be Justices c. A. le ts during the life of Baron Fem the Lessee grants during the Coverture Limitation IF Land be given to one and the Heirs males of his body the Remainder to the Heirs Females of his body the Daughter of the Son shall not take by this Limitation If Land be given Habendum to him and the Heirs males of his body and to him and the Heirs Females of his body if he shall take it as a Remainder Quaere But Litt. faith in the last case but one that the Warranty of the Father shal be lineal to the Daughter If Land be given to one and the Heirs Males of his body and the Heirs Females of his body if he hath Issue Male and Female they shall take by Moities severally by descent So if a Woman hath three Sons by severall Husbands and Land is given to the Woman and to the Heirs of her first and second Husband some think the two Sons shall take severally by Moities and yet it was but one Estate in the Woman A Feoffment is made to the use of I. and after to the use of the Feoffor and his Heirs the Feoffor doth not take it by Remainder for the Limitation to himself is void for the Law saith as much but it is in him as a Reversion But if the Feoffment had been to the use of the Feoffor for life there the Feoffee shall have the Fee to his own use If a man makes
shall not have the possession in fact or in Law before Entry If one Jointenant leases his part for years a stranger enters claiming the moity of the other who waives the possession it seems it is a Disseisin to him though the Termor continues in for they are Tenants in common and though the possession of the Lessee be the possession of him in Reversion sc his Companion but è contra if the Termor had waived the possession and the other continues in it seems that he in Reversion cannot be out of possession for his Joint Companion held it Two Jointenants in Fee of a Rent Charge a Stranger takes it to the use of I. one releaseth to the Pernor the other to the Tenant if by the last release he shall be said in possession ab initio then the first release to the pernor is void for the possession of one is the Possession of both Possessio fratris A. Makes a Lease for life and dies having a Son and a Daughter by one venter and a Son by another the Eldest Son grants the Reversion in tail the Tenant atturns and he dies the Grantee in tail dies without Issue Tenant for life dies it seems the Daughter shall have the Land not the youngest Son The Disseisee dies having a Son and a Daughter by one venter and a Son by another the Son after the descent enters upon the Heir of the Disseisor and dies without Issue the Daughter shall not have the Land for his possession was tortious if the Father dies seised and the Eldest Son makes a Lease for life the mother recovers Dower against the Lessee the Son dies the Daughter shall have the Reversion and not the Son But if Tenant for life dies after the death of the Son and during the life of the Tenant in Dower Quaere who shall have the Reversion the Son or Daughter If A. makes a Lease for life and dies his Eldest Son disseises Tenant for life and dies Tenant for life dies the Son shall have the Land from the Daughter which is put in the book of Ass and the principall case is the Eldest Son endows his Mother and dies if the youngest Son or the collaterall Heir of the Eldest shall have the Land The Father dies seised of two Acres theSon enters into one saying nothing if that shall be a sufficient possession of the other Acre to make the Sister to be Heir Quaere Some think it shall not If a Disseisor or Feoffor on Condition enter into one Acre saying nothings there no more shall be gained by that Entry but in the principall case if the Acres had descended one from the Father and another from the Mother then the Entry into one is an Entry but into that only So if it had been on a Title for several Conditions 9 H. 7. 25. So the Entry of the Bastard into one Acre shall devest no morethan that for the Mulier had a possession in Law Quaere If a man makes a Lease for years and dies this possession in Law of the Reversion is sufficient to make the sister Heir Quare Impedit IN a Quare◠Impedit against the Patron and Incumbent it is no plea for the Incumbent to say that he hath been in six months upon the presentation of the Patron for none can plead Plenalty but he who by such plea may gain the Patronage and against whom a Writ of Right of Advowson is maintainable Quod vide in 16 E. 4. 11. But in a Quare Impedit against the Ordinary and Incumbent the Incumbent shall say that he hath been in six months upon the Collation of the Bishop by reason of Laps because no Patronage is gained by that so note the Diversity 2 R. 2. Encumbent 4. 18 E. 3. Quare Imp. 4 8. 13 H. 8. 14. 14 H. 8. 31. 39 E. 3. 30. Recognizance vide Statute Record IF a Record in the C. B. be pleaded in any other Court of the King where it is requisite to be produced it must be exemplisied under the Great Seal of England and the Seal of the Court is not sufficient but if he pleads it in C. B. there if he shews the Exemplification under the Seal of the Court it sufficeth for in the one case it is Teste meipso and in the other Teste the Chief Justice Relation IF a Feoffment be made of a Mannor when Atturnment is had the services passe ab initio If a Lease be made for life the Remainder to the King and Livery is made and after th e Deed is inrolled now the Remainder passes to the King as a Remainder ab initio If Land be given to Baron Fem in Fee he dies and the Wife waives the possession and recovers her Dower against the Heir she shall recover Damages for by her refusall the Husband shail be said to die seised Keylway 104. p. 14. If a man who hath a Villein delivers an Escrowl of Enfranchisement to be delivered to his Villein seven years after and before the end of the seven years he dies and the Deed is after delivered that will be a good Enfranchisement by relation Vide Barg Sale Release LOrd Mesne and Tenant the Tenant holds in Socage and the Mesne in Chivalry the Tenant makes a Gift in Frankmarriage the Mesne releaseth ro the Donor the four degrees passe the Donor seiseth the Ward of the Issue and enters into the Land and he brings an Action of trespass some think it is maintainable If Lessee for years makes a Feoffment to two a Release to one shall inure to both If Tenant in tail makes a Lease for life the Remainder for life and releaseth to him in Remainder and his Heirs if the first Tenant for life dies in the life of Tenant in tail it is a Discontinuance The Tenant holds ten Acres by ten pence and makes a Feoffment of one the Lord grants the Rent reserving the Fealty the Tenant Atturns the Grantee releaseth all his Right in the Land to the Tenant yet he shall have one penny for the Feoffment severed the Seignory and by the Grant two Rents passed and but one is extinct by the Release viz. the Rent of Nine pence Two Disseisors make a Gift in tail to hold in Chivalry the Disseisee releaseth to one the Donee dies some think this Release will inure to both Two Women disseise another and make a Feofment to their Father who dies so that the Land discends to them the Disseisee Releaseth to one it shall inure to both for betwixt themselves they are in by Title If a Disseisor dies seised having two Daughters Bastards and the Disseisee releafeth to one of them that shall inure to both A. makes a Feoffment to two upon Condition which is broken the Feoffor releaseth to one it shall operate to both for they are not in by wrong and a Release where it countervails an Entry and Feoffment doth not extend to Titles If a Disseisee enters upon two Disseisors and they
same advantages which the Wife should have But if the Land had been in Execution then it had been unavoidable because it had been executed If Tenant for life and he in reversion levy a Fine it shall be lyable to the statute of Tenant for life during his life only and never shall be lyable to the Statute of him in reversion for though the words of the Fine be joint yet he may avoid it by shewing the truth of the matter So in the principall case he may shew that the Estate of the Husband was during the Coverture only If the Grantee of a Rent Charge dies without Heir the Land shall be bound with a Statute Merchant entred into by him for though it be determined yet the determination shall not have relation for if the Tenant be bound in a statute and dies without Heir it shall be extended against the Lord by Escheat And if one manumits a Villain a Statute in which he was bound shall be executed upon him if the Writ of Execution did issue out against him before Land whereof a man hath onely Seisin in Law shall be lyable to a Statute The Conisor of a Statute is in Execution and his Land also the Conisee releaseth to him all his Debts the Execution it discharged for the Debt remains untill it be levied of the profits If the Son be Tenant in tail the remainder to the Father in Fee the Father is bound in a Statute and dies and the remainder descends upon the Son he aliens in Fee or suffers a Common recovery the Land is lyable to the Execution presently As if the Lord had recovered in a Cessavit against Tenant in tail with a remainder over being charged the Land in the Lords hand shall be lyable to the Statute of him in Remainder presently as it shall be to the Grant of a Rent by him though as a remainder it was not lyable Surrender LEssee for forty years makes a Lease for ten years rendring a Rent the first Lessee surrenders and the Lessor brings Debt against the second Lessee Quaere If Lessee for years makes livery as Atturny to the lessor it was ruled in 34 Eliz. in C B. to be no surrender Tenant for life cannot surrender to him in Remainder for years for he hath a Freehold in possession which cannot drown in a Chattle If a lease be made to commence at Easter and before Easter the lessee takes another lease to begin presently If that be a Surrender Some think it is A lease is made for ten years and after another lease is made to begin after the first lease determined the first lessee Surrenders the second lessee may enter otherwise if the Reversion had been granted for ten years A lessee cannot make an Actual surrender before Entry If a lease be made for years the remainder for years the remainder to the first Lessee in Fee he in remainder may surrender to him and yet he hath nothing in possession So if there be lessee for years the remainder for years and the Fee descends to the first Termor he in remainder may surrender If A. makes a Lease for years to B. to begin at Michaelmas and before the day he enfeoffs B. B. dies before the day and his Son enters if the Executor may enter upon the Heir is the question Tail A dies leaving Issue two Daughters Land is given by Deed in tail to the youngest and to the Heirs of the body of the Father begotten and she hath Issue and dies and the Issue brings a Formedon against the Eldest Daughter the question is what Estate the Daughter took Tenant in tail in Vse the remainder unto his right Heirs enters upon the Feoffees and makes a Feoffment and takes back an Estate in tail the remainder to his right Heirs and after the Stat. of 27 H. 8. is made and he dies how the Issue may avoid the second Estate tail and take the first is the question It seems he cannot take the first Estate in Tail by no means for when he entered upon the Feoffees and made a Feoffment then the remainder in Fee was not in him yet by his Feoffment a Fee simple passed not determinable by his death but defeasible by the Entry of the Feoffees then the Fee simple must needs pass being he had the Vse to his right Heirs then when the Stat. of 27 H. 8. was made the Vse not being in Esse but the right of an Vse the possession is executed according to the right of the Vse and then when he dies there is no Remitter to the Estate for that was not in Esse A Gift in tail is made with Warranty accordingly the Donee releaseth the Warranty to the Donor and after the reversion is granted and the Donee atturns If the Issue in tail be impleaded he shall not vouch for the release hath extinguished the Warranty for ever for the Statute speaks of Tenements and a Warranty is no Tenement but a Covenant reall which is extinguished by the Release As if an Annuity be granted in tail a Release of the Donor extinguisheth it If Tenant in tail makes a Lease to begin at Easter reserving a Rent and dies and the Issue in tail enters and makes a Feoffment before Eastar the Feoffee cannot avoid the lease for the lease was not avoided by the Entry of the Issue A lease is made for years the remainder in tail he in Remainder grants it over in Fee the Lessee atturns the years expire the Grantee enters and dies seised Tenant in tail dies his Issue may enter for the Grant was not but for the life of Tenant in tail and then he did not die seised in Fee if the dying seised had been after the death of Tenant in tail it should not have taken away his Entry Tamen Quaere But if the Issue of the Issue of the Grantee had entered and died seised there his Entry had been taken away and if Tenant in tail enfeoffs the Donor who dies seised by most that Dissent will take away the Entry of the Issue Tenant in tail makes a Feoffment and dies the Feoffee makes a lease for life and grants the Reversion to the Issue he shall not have a Formedon against Tenant for life for he hath assented to the reversion But if Tenant in tail makes a lease Pur auter vye and dies notwithstanding the Dissent in Fee of the reversion the Issue shall have a Formedon for the Reversion is waived by using the Action If Donee in tail to him and his Heirs males the Remainder to him and the Heirs Females of his body makes a Lease for years reserving a Rent and dies without Issue Males if the Heir Female accepts the Rent she shall be bound for the Lease was derived out of both their Estates and she comes in by descent but if the Heir male had made a Lease and died without Issue the Heir Female cannot make that good by acceptance If Tenant in tail of a
and died during that Estate he shall be Tenant by the Curtesie for the Freehold was not in suspence but the possession for years only Land is given to two Women Quant diu simul vixerint the remainder to the right Heirs of her who first dies one of them takes Husband hath Issue and dies the Husband shall not be Tenant by the Curtesie for she had not the sole possession Tenant by the Curtesie of a Seignory and a Tenancy Escheats and he makes a Feoffment with Warranty of it If that shall be a bar to the Issue without Assetts is the Question If one hath a Son which is a Bastard Eign and a Daughter Mulier Puisne and dies seised of a Rent the Daughter having a Husband and after the Bastard gets the Rent and thereof dies seised and that descends unto his Issue yet the Husband shall be Tenant by the Curtesie for the Rent was in Esse at the time of the Discent in the Daughter and she may choose whether or no she will admit her self out of possession Tenures IF there be Lord Mesne and Tenant the Tenant holds by four pence and the Mesne by twelve pence and the Tenant makes a Gift in tail saying nothing and the Reversion Escheats after that some think the Donee shall hold by twelve pence so if the Mesnalty descends to the Donor the Donee shall hold by twelve pence and if the Mesne had released to the Donor the Donee shall hold by twelve pence As if the Tenant had made a gift in tail the remainder in fee and the remainder had escheated the Donee shall hold by twelve pence for the first Services which he paid and the first Tenure is extinct by the unity of the remainder to the Seignory so it is cleer the Mesnalty is extinct viz. the four pence then the Donee shall hold by twelve pence and it is all one as if the Mesne had released to him in remainder and the reason in the principall case why the Tenure of the Donee shall be charged is because the Law makes the Tenure of the Donor in respect of the Mesnalty and when the Mesnalty is extinct the Tenure between the Donor and the Donee is extinct also and then by the same reason that theDonee shall take advantage if the Donor by release or Dissent had held by lesser Services he shall be prejudiced when he holds by greater Services And some think if the Wife of the Donee in tail of which the Law makes the Tenure be endowed and after the Estate is extinct she shall hold by Fealty only otherwise if the Tenure had been reserved by expresse words and if the Wife of the Tenant be endowed and after the reversion Escheats the Wife shall hold by Fealty only If the Tenant who holds by four pence makes a Gift in Frankmarriage and after the Donor dies without Heirs so that the reversion is held by twelve pence Quaere how the Donees shall hold whether by such services as the Donor held when the Gift was made or by such as the reversion is now held by If a Gift in Frankmarriage be made the Donees after the fourth degree shall hold as the Donor holds over If a Gift in tail be made rendring two pence during the life of the Father of the Donee during his life the Issue shall hold by the Reservation of the party and after his death by reservation of the Law If an Encroachment of Services be made upon the Husband the wife endow'd shall not be contributory and yet the Heir shall not avoid it A man hath issue two Daughters and holds Land of the Eldest by Suit and a Hawk and dies the Daughters assign a third part to the mother in Dower and after make Partition Tenant in Dower shall not be contributory for any part of the Services for the reversion remains in Parcenary between them for they cannot make partition thereof and then the whole Seignory is in suspence And yet if Land holden by a Hawk descend upon the Seignoresse and her sister and they make Partition the Seignoresse shall have the Hawk but there is no Suit for by the Statute of Marlebr cap. 9. the Eldest shall perform it and the other shall be contributory then if she be Seignoress she cannot do it her self But the reason in the principal case why the youngest shall not be charged is because the Seignory is in suspence it cannot be in Essc for another parcel The Tenancy being a Mannor is holden by twelve pence of another Mannor which is the Mesnalty and holden by six pence and the Mesne enfeoffs the Tenant of the Mannor which is the Mesnalty now he shall hold both the Mannors of the Lord by one Joint tenure of six pence and the Lord shall avow upon the Tenant because the two Mannors are holden of him by six pence so had it been if the Tenancy had escheated to the Mesnalty and the one Mannor is parcel of the other there the Tenancy hath not lost the name of a Mannor for the Land which was held of the Tenancy is not held of another Mannor which was the Mesnalty but as it was before 39 H. 6. 9. b. where one Mannor may be parcel of another If the Tenant who holds by one Hauk makes a Feofment of a Moity to a stranger or of the whole to a Mayor and Commonalty and A. now the Lord Paramount shall have two Hawks for they are severall Feofments for if livery had bin made to one in the name of both nothing passeth but to him who took the Livery and the Lord shall be compell'd to make several Avouries which proves that he shall have severall Hawks If the Tenant who holds by two severall Hawks makes a Gift in tail to two several persons reserving a Rent Habendum the one Moity to one and the other Moity to the other so that they have severall Estates in tail the Donor shall have two Hawks for the Law makes the Tenure and reservation but if the party had reserved it by special words As if a man makes a Lease Habendum one Moity to one the other Moity to the other reserving one Hawk or makes a Lease Pur auter vye to A. and to a Dean and Chapter reserving one Hawk and the Land goes two severall ways and he does reserve but one Hawk he shall not have more than he reserved If a Reversion at the beginning goes severall ways yet they shall not have more than is reserved if it were special reservation by the party Land is given to two and to the Heirs of their two bodies begotten the remainder to their right Heirs and the Land before was holden by one Hawk the Lord shall now have but one Hawk and yet they are not Jointenants of the Fee simple but there is no apporcionment by Moities but if a Lease be made for life of two Acres the remainder in Fee of one to A. and of the other to B. there he
dies within the term if the Issue being remitted to the Freehold of the Villain may enter into the Mannor and out the Villain Upon a plea in Bar of an Assize the parties are adjourned and after the Tenant pleads a Release made after the Darrein Continuance bearing date in a forreign County and after at the Venire fac return'd the Tenant pleads that after the Darrein Continuance he hath purchased the Mannor to which the Plaintiffe is a Villain he shall not have this plea for he shall not delay the Plaintiff by his plea but once where the matter of fact happens de puisne temps for he is at no mischeif if his plea be true But in shewing a Record after he shall plead it if it be in the same Court. And here the Villain shall not be enfranchized for the Plea was pleaded before which now he ought to maintain but if he answers his Villain de Novo that is an Enfranchisement Voucher THe youngest son of an Abator hath Land by descent by the custom of Borough English or by reason of an Estate tail made to his Father and a second Wife in a Mortdancester brought against him he shall vouch notwithstanding the Counterplea given by the Statute for the Statute extends but to Heirs at common Law and therefore if an Abator hath Issue two Daughters and makes a Feoffment and dies and one of them takes a Feofment and an Assize is brought against her she shall vouch for she is not sole Heir but if she had been sole Heir then cleerly she shall not vouch though she doth not come to it as Heir And if an Abator and a stranger being Tenants in a Mortdancester vouch they shall have the Voucher If Feoffee with Waranty to him his Heirs and Assigns makes a Lease for life the Tenant for life in a plea vouches the first Feoffor and recovers in value Land held of the Feoffee if the Feoffee shall have his Seignory For if the Reversion of the Land recovered be in the Feoffee then he shall not avow and if he shall not Quaere if Lessee for life shall vouch as Assignee being that he hath not all the Estate And it is cleer if the Feoffee had made a Lease for life the remainder in Fee the Lessee shall vouch as Assignee and if he recovers in value the remainder shall be in him in whom it was before 28 Ass p. 18. 11 Ass p. 3. If the younger brother and a Stranger abate and the Stranger dies now a Mortdancester doth not lie or if an Abator makes a Feoffment and retakes an Estate to himself and another and the other dies the Voucher does not lie for him and yet before an Assize of Mortdancester and Voucher did lie If a Feoffment be made with Warranty to one his Heirs and Assigns the Feoffee makes a Feoffment over the second Feoffee enfeoffs the Son of the first Feoffee he shall vouch for he may be Assignee of his Father being he does not come in as Heir Lord by Escheat Mortmain or of a Villain c. shall not be said Assignees Land is given to Husband and Wife and to the Heirs of the Husband he makes a Feoffment with Warranty and dies the Wife brings her Cui in vita the Feoffee vouches and recovers in value by reason of the Warranty after the death of the Wife he shall vouch again by reason of the Warranty aforesaid So if a Woman brings a Writ of Dower and the Feoffee vouches by reason of the Warranty he shall vouch again after the death of the Wife because the Voucher and Recovery in value was onely in respect of the Freehold but if he had once recovered in value of the Fee he should never vouch again by reason of the first Warranty for he hath the effect of it and also the Warranty is gone with the Estate But if Tenant in Frankmarriage recovers in value he shall vouch again but it is otherwise of Tenant for life If Tenant in tail to him and his Heirs Females the remainder to him in Fee makes a Feoffment with Warranty and dies the Heir Female recovers and the Feoffee recovers over in value he shall vouch again after the Estate tail is spent by reason of the first Warranty If the Tenant vouches and at the Sequat sub suo periculo the Tenant and the Vouchee make Default whereupon the Demandant hath Judgement to recover against the Tenant and after he brings a Seire fac against the Tenant to execute the Judgement if the Tenant shall have a Warrantia Chartae against the Vouchee But if a stranger brings a Praecipe quod reddat against the Tenant some think that he shall vouch for by the first Voucher and the Judgement given against the Tenant the Warranty was not defeated nor the possession of the Tenant but if the Tenant had judgement to recover in value against the Vouchee he shall never vouch again by reason of this warranty for the warranty hath lost its force being he had Judgement to recover in value by reason of it for if he should recover again he should have 2 Recoveries upon one warranty It was holden cleerly that if the tenant hath Judgment against the Vouchee he shall recover no land in value but that the Vouchee had at the time of the Judgment And note upon a Summoneas ad Warrantizand if the Sheriff returns the Vouchee warned and he makes default the Tenant shall have a Cap. ad val and recover in value but if he returns that he hath nothing then after the Sicut alias pluries a Sequatur sub suo periculo shall issue and there if the Vouchee makes default he shall not have Judgement to recover in value for the Warranty is not confessed and it is uncertain whether he had any thing but in the Cap. ad val it appears that he has Assetts A. seised of two Acres at Common Law and one in Borough English and makes a Gift in tail to a Stranger of one of the two Acres and dies the Donee is impleaded and vouches the eldest Son and recovers in value the other Acre out of his possession as he shall do in this case being he vouches him alone and not the youngest where the eldest hath assetts the question is if he be impleaded for that Acre he hath recovered if he shall vouch the eldest and the youngest If that Acre in Borough English shall be lyable by reason of the said Warranty in Law being it is not the Warranty which descends but the Warranty in Law commenceth first in the Eldest Son for the Recovery in value shall be said in lieu of the first Land given yet it is always to be intended having regard to the estate of the Reversion descended from the Father the Reversion left in the Eldest Son and then the Acre of the youngest is not lyable to that Warranty So if the Father had given a Seignory to the Eldest Son in tail and died seised