name But if it be such a cause of action as is altogether uncertain as where a man may have an action against another for taking away his goods or to compell him to make an account or the like this is such a cause of action as is not deviseable And yet possibilities and incertainties are in divers cases devisable Perk. Sect. 527. Litt. B100 Sect. 437. Dyer 272. Plow 520. And therefore if one have money to be paid him on a Mortgage he may devise this money when it comes as if I enâ—eosse a stranger of land upon condition that if he do not pay me 20l. such a day that I may reenter in this case I may devise this 20l. if it be paid and the Devise is good albeit it be made before the day of paiment come Childs case 17. Ia. B. R. And if a man be possessed of a Terme of yeares and devise all the residue of that Terme of yeares that shall be to come at the time of his death this Devise is good and yet such a Grant by deed is void Grant * But a meer possibility and a thing altogether incertain is no more devisable by will then it is grantable by deed 19. Emblements i. e. the Devise of Emblements Perk. Sect. 520. 521. c. See in grantâ— corne that is sowen and growing upon a mans ground at the time of his death and which himselfe should have reaped if he had lived to the harvest as in most cases he shall where he doth sowe it are devisable And therefore if a man have land in Fee simple Fee taile for life or yeares and sowe it with corne he may devise the corne at his death to whom he please And yet if Lessee for yeares sowe his land so little while before his Terme expire that it cannot be â—ipe before the end of the Terme and he die it seemes he cannot devise this corne for if he had lived he could not have reaped it after the end of the Terme 20. Obligations Counterpanes of Leases and Perk. Sect. 527. such like things also are devisable but in this case the Devisee cannot Devise of Obligations Counterpanes of Leaseâ— c. sue upon the Obligation in his own name nor enter for the condition broken upon the Lease if there he cause but he may cancell give sell or deliver up the Obligation or Counterpane to the Obligor or Lessee And finally whatsoever shall come to the Executor See inâ—â—â— in Numb after the death of the Testator in the right of his Executorship may be devised by the last Will and Testament of the Testator 21. Devise ofâ— the things a man hath in Iointure wiâ—h another Perk. Sect. 52. Litt. Sect. 287. Doct. St. 167. The goods and chattels that a man hath joyntly with another are not devisable And therefore if there be two Iointenants of goods or chattels as where such things are given to two or two do buy such things together and one of them devise his part of the things to a stranger this Devise is void Insomuch that if in this case the Testator make the other Ioyntenant his Executor the Will as to this is void and he shall not be charged as Executor for those goods but he shall have them altogether by right of survivorship 22. The Devise of the things a man hath in anothâ—â—s right Plow 525. B100 Administrator 7. 〈◊〉 Adm. 〈◊〉 goods and chattels that a man hath in anothers right are not devisable and therefore an Executor or Administrator cannot devise the goods and chattels he hath as Executor or Administrator for such a Devise is void Howbeit the Executor may appoint an Executor of the goods of the first Testator which the Administrator cannot do And of the profits that do arise by the goods and chattels the Executor or administrator hath during the time of his Administration he may make disposition The goods and chattels belonging to Colledges and Hospitals may not be devised by the Testaments of the Masters or governours thereof noâ— the goods and chattels belonging Doct. St. lib. 2. c. 39. Perk. Sect. 4â—6 49â— 49â— to other Corporations by the Mayors Bayliffes or Heads thereof * And the goods and chattels that Churchwardens have in the right of the Church are not devisable * Perk. Sect. 560. Doct â—t c. 7. All the chattels reall that a man Husband and wife hath in the right of his wife by her means and all the Obligations that are made to her alone before or during the time of the Coverture and the chattels reall or personall that his wife hath as Executrix to any other are not devisable by the Testament of the husband But all the chattels personall that a man hath by his wife which she hath in her own right and the debts due upon Obligations made to the husband and wife both during the Coverture are devisable by the Testament of the husband 23. Such things as are annexed and incident Devise of things that are incident and annexed to some other thing to a Freehold or inheritance so that it cannot be severed from Perk. Sect. 526. Relw. 88. See before it by him that hath the propertie of them as wainscot and glasse to houses and the like are not devisable but in such cases where the thing it selfe to which it is annexed is devisable 24. The goods and chattels that are another mans are not devisable and therefore Plow Granthams case Câ—o. super Litt. 185. Coo. super Litt. 308 Devise of things that are not the Devisors or belong not unto his Executor if a man give another mans horse it is is a void Devise So if one devise the things that by speciall custome of some places as the heire loomes do belong to the heire this Devise is void for it is not devisable from him 25. If a Bishop have a Ward belonging to his Trin. 13. Ia. Curia B. R. Bishoprick fallen he may devise it but if a Church of his become void in his life time he cannot devise the Presentation If a Parson of a Church have the Advowson in Fee and he devise that his Executors Devise of a Preâ—entation to a Church two or three of them shall present at the next avoydance this is a good Devise 26. All these things before that are devisable Swinb part 7. c. 5. Plow 525. Perk. Sect. 500. when they are devised must be named and devised either by their proper name or otherwise described by some other matter whereby Mistake or error in the 〈◊〉 devised the mind of the Testator may be known and discerned for if he erre and mistaken in the name or substance of the thing devised or it be so incertainly devised and described that it cannot be perceived what he intendeth the Devise is void And therefore if one devise a piece of ground by the name of a Mesuage
father excepting the land descended to him of the part of his mother these exceptions are void l Dier 97. 264. Co. super Lit. 47. Plow 153. 103 104. 14 H. 8. 1. Doct. Stud. 98. Or if the exception be such as it is repugnant to the grant and doth utterly subvert it and take away the fruit of it as if one grant a manor or land to another excepting the profits thereof or make a feoffement of a close of meadow or pasture reserving or excepting the grasse of it or grant a manor excepting the services these are void exceptions m Dier 59. 263. So if one grant his house chambers cellars and shops excepting his shops it is said this is no good exception And by the like reason if one grant his meadow and pasture grounds except his meadow grounds this exception is not good no more then if one grant two manors or two acres excepting one of them And of this opinion was the Chiefe Justice in B. R. Hil. 3. Car. in the case of Haward and Fulcher. n Plow 524. Dier 264. Br. grant 60 38 H. 6. 38. And yet if a man make a lease for yeares of a Mill excepting the profits thereof during the life of the lessor it is said this hath been adjudged a good exception But I doubt of this case for the exception of the profits of a thing is the exception of the thing it selfe And a man cannot grant an estate and reserve a part of the estate as make a feoffement in fee and reserve a lease for life or grant an Advowson and reserve the Presentation for his life o Co. super Lit. 150. Or if the exception be of an inseparable incident and a thing that cannot be granted by it selfe and from another as if a manor be granted excepting the Court Baron or land be granted excepting the common appendant thereunto belonging these exceptions are void But exceptions of severable incidents are good p Co. 5. 12. Hiâ— 9 Jac. B. R. per Curiam Or if the exception be of such a thing as the grantor cannot have nor doth belong to him by law as if a lessee for years assigne over all his terme in the land excepting the Timber trees earth or clay this exception is not good But if lessee for life make a lease for years or lessee for 21. years make a lease for This difference hath been agreed 20. years or tenant by the courtesie or in dower grant over their estate excepting the Timber trees these are good exceptions And if a lessee for life or years open a Cole-mine and then assigne over his estate excepting the mines or the profits thereof these are void exceptions q Co. super Lit. 47. Plow 53. Or if the exception be of a particular thing out of a particular thing as if one grant white acre and black acre excepting white acre or grant 20. acres of land by particular names excepting one acre of them these exceptions are void r Perk. Sect. 643. 641. Or if the exception be set downe incertainly as if one grant a house excepting one chamber or grant a manor excepting one acre but doth not set forth which châ—mber or which acre it shall be these exceptions are void A Tenendum is a clause of the deed whereby the tenure was heretoforce created And this doth most commonly and properly 8. Tenendum Quid. Co. super Lit. 6. Co. 9. 130. succeed the Habendum and was made by this word Tenendum per servicium c. But sithence the Statute of Quia emptores terrarum when the fee simple doth passe the tenure is alwaies of the chiefe Lord and is thus set forth Tenendum de capitalibus dominis c. And this clause at this day is for the most part omitted altogether A Reservation is a clause of a deed whereby the feoffor donor Co. 10. 107. Plow 132. Co. super Lit. 47. Perk. Sect. 625. lessor grantor c. doth reserve some new thing to himselfe out 9. Reservation or Reddendum Quid. of that which he granted before And this doth most commonly and properly succeed the Tenendum and is made by one or more of these words Reddend ' reservand ' solvend ' faciend ' inveniend ' or such like This doth differ from an exception which is ever of part of the thing granted and of a thing in esse at the time but this is of a thing newly created or reserved out of a thing demised that was not in esse before so that this doth alwaies reserve that which was not before or abridge the tenure of that which was before In every good reservation these things must alwaies concurre 1. 10. What shall be said a good reservation And what not a Plow 132. Perk. Sect. 626. Co. 8. 71. It must be by apt words 2. It must be of some other thing issuing or comming out of the thing granted and not a part of the thing it selfe nor of some thing issuing out of another thing 3. It must be of such a thing whereunto the grantor may have resort to distraine 4 It must be made to one of the grantors and not to a stranger to the deed As for examples b Plow 132. If a man grant land yeelding and paying money or some such like thing yearly this is a good reservation But if the grantee covenant to pay such a summe of money or to doe such a thing yearly this is no good reservation but a covenant to pay a summe of money in Covenant grosse and not as a rent c Co. 5. 111. 8. 71. super Lit. 214. 213. 99. If a lease be made for years rendering a rent to the lessor or his heires in the disjunctive or rendering a rent to the lessor without saying and his heirs c. or rendering a rent during the said terme and doth not say to whom or rendering 10 l. to the lessor and â—5 l. to his heires all these reservations are good But if a lease be made rendering rent to the heires of the lessor this reservation is void because the rent is not reserved to himselfe first d Co. super Lit. 142. If one grant land yeelding for rent money corne a horse spurres a rose or any such like thing this is a good reservation but if the reservation be of the grasse or of the vesture of the land or of a Common or other profit to be taken out of the land these reservations are void e Co. super Lit. 47. Co. 5. 3. Perk. Sect. 626. If one grant a manor mesuage land meadow or pasture or the vesture or herbage of of land meadow or pasture rendring a rent this is a good reservation But if one grant Tithes rents commons advowsons offices a corody mulcture of a Mill a Faire market priviledge or liberty reserving a rent this reservation is void And yet such a reservation also in case of the King
thus it is sometimes in writing or by deed and sometimes it is by word without But the word being taken more strictly and properly it is the grant conveyance or gift by writing of such an incorporeall thing as lieth in grant and not in livery and cannot be given or granted by word onely without deed Or it is the grant of such persons as cannot passe any thing from them but by deed as the King bodies corporate c. And this albeit it may be made by other words yet it is most commonly made by this word grant as being most proper to this purpose Know therefore that amongst Co. super Litt. 49. hereditaments some are such as are said to lie in livery i. such as whereof livery of seisin may be made as Manors houses lands c. And some are such as doe not lie in livery i. whereof no livery of seisin can nor need to be made but they passe by the delivery of the deed without any more and of this sort are rents reversions services advowsons in grosse and the like which things cannot passe from man to man without deed or matter of record which is of a higher nature then a deed And hee that makes this grant is called the grantor and hee to whom it Grantor Grantee is made is called the grantee It is taken here in the largest sense as that which doth comprehend 2. Quotuplex both And so some grants are of the land or soile it selfe and some are of some profit to be taken out of or from the soile as rent common c. And some are of goods and chattels and some are of other things as authorities elections c. And they are made sometimes by matter of record sometimes by deed or writing in the country and sometimes by word without either Some grants also tend to charge the grantor with something he was not charged with before and some to passe something out of him to the grantee and some tend to discharge the grantee of something wherewith he was charged or chargeable before and whereof he is now hereby discharged Regularly these things are requisite in every good grant or 3. Things necessarily requisite to every good grant Co. 11. 73. Plow 555. gift 1. That there be a grantor donor c. and that he be a person able to grant and not disabled by any legall or naturall impediment 2. That there be a grantee donee c. and that he bee a Perk. Sect. 1. person capable of the thing granted and not disabled to receive it 3. That there be a thing granted and that the thing be such a thing as is grantable 4. That it be granted in that order and manner that Law requireth as where the thing is not grantable without deed that it be done by deed And if it be by deed that the deed have apt words to describe and set forth the person of the grantor and grantee and thing granted c. and that all necessary circumstances as sealing and delivery and livery of seisin and atturnment where it is needfull bee observed 5. That there bee an agreement to and acceptance of the grant or thing granted by him to whom it is made and for default in either of these particulars a grant may be void In acquirendo rerum dominio scilicet quod donationes non valent licet sint inceptae nisi sint perfectae But if grants Bro. Grant 89. be very ancient and the things granted have been enjoyed according to the grant ever since the making of it in this case the grant may be good notwithstanding some legall defect in some of these particulars Corporations as Dean and Chapter Maior and Communalty and 4. What shall bee said a good and sufficient grant gift or sale Or not 1. For the manner of it And what may bee granted without deed Or not And how Rents Services c. Perk. Sect. 64. 4 H. 7. 17. Plow 150. 16 H. 7. 3. Litt. Sect. 60. such like regularly can neither grant lands goods or chattels but it must be by deed But the grantees of such persons and all other common persons may grant or give any thing which doth lie in livery as manors houses lands and such like things in fee simple fee tail for life for years or at will by word without deed And if a lease be made of any such thing for life or years with a remainder over in fee simple fee taile or for life it is good albeit the same be done by word without any deed in writing Such things as are said to lie in grant and not in livery generally Co. super Litt. 49. Dier 139. Perk. Sect. 61. 60. 63. Bro. Grant 59. cannot be granted or given had or taken without deed unlesse it be in some speciall cases And therefore rents and services and such like things which are in grosse and not incident to some other thing may not be granted without a deed And therefore if a rent-charge be granted unto me for years I may not grant this rent over without deed And if there be Lord and tenant of errable land by fealty and the service of yeelding the tenth sheaf of corn before it be sowed the Lord cannot grant this service for years without deed But if a rent or any service be parcell of or incident to a manor or any other thing which is grantable without deed in this case by the grant of the principall by word this thing may passe as belonging thereunto without any deed Also rents or services may be granted upon a partition by one coparcenor to another without deed A reversion cannot be granted in fee simple fee tail for life or Perk. Sect. 61. Dier 174 Plow 433. Bro. Grant 104. years without deed unlesse it be in casewhere it is parcell of a manor Reversion or Remainder But a reversion may be granted upon a partition by one coparcenor to another without any deed And the same law is of a remainder And therefore if one make a lease for life or years to one the remainder in fee simple fee taile or for life to another without deed howsoever this be a good remainder in the first creation without deed yet this remainder cannot be granted over without deed A Parsonage or Rectory albeit it consist of nothing but Tithes 15 H. 7. 8. 16 H. 7. 3. 19 H. 8. 12. 21 H. 6. 43. Advowson Tithes c. and the like besides the Church and Church-yard and it hath no house nor glebe belonging to it yet may be granted without deed in fee simple for life or years and then the tithes and offerings will passe as incident But the tithes alone or a portion of tithes oblations mortuaries or obventions are not grantable by themselves without deed And therefore a lease paroll of tithes albeit All this was agreed 36 El. B. R. it be but for years is not
good And if the Parson agree with one of his Parishioners that he shall have his own tithes this is not a good grant of the tithes neither may it be pleaded or used so but perhaps by way of agreement a Parishioner may retain his tithes And if a lessee for years of tithes will grant it over to another at will only it cannot be done without deed as was held by Baron Denham 2 Car. at Sarum Assises And yet it is held that a Parson Mich. 8 Jac. Dr. Longworths case may grant his tithes from year to year to him that is to pay them without any deed but this is by way of retainer But this grant or agreement must be made to and with the party himself that is to pay the tithe and not with another neither can this interest bee assigned or a stranger take advantage of it as hath been agreed in the case of Hawkes and Brafield Pasch 3 Jac. B. R. An Advowson in grosse cannot be granted without deed yea 21 Ed. 3. 38. 11 H. 4. 3. Dier 29. 10. Co. 1. 1. the grantee of the grantee of an Advowson is to shew both the deeds But an Advowson is grantable upon a partition between coparcenors without deed And an Advowson incident to a manor or peece of land is grantable with the manor or land without any deed The next avoidance to a Church is not grantable without Plow 150. 9 Ed. 4. 47. deed Common of Pasture of estovers turbary fishing c. cannot be Perk. Sect. 61. granted in fee simple fee tail for life or years unlesse it be in case Common of pasture c. of partition or of appendancy as incident to some corporall thing without deed And therefore if a man grant by word of mouth to me Common for twenty beasts in his manor this is not good Neither if it be granted to me by deed may I grant this over to another without deed But if a man have Common of pasture appendant or appurtenant to his land in this case he may grant his land with the Common appendant by word only without any deed Franchises as Fairs Markets Courts Warrens and the like Franchises and such like things 15 H. 7. 8. or the profits thereof are not grantable without deed But it seems a Hundred is grantable without deed for that is liberum tenementum The profits of a Mill County Ferry Corody or the like are not grantable without deed Things in action as a right or title of action that doth only depend 6 H. 7. 9. Dier 91. 126. Doct. St. 16. in action and things of that nature as rights and titles of Things in action and such like things entrie to any reall or personall thing are not grantable at all but by way of release to the tenant of the land c. by which means it may be extinguished but this may not be neither without deed And therefore if a man take my goods as a trespassor or I deliver him my goods to keep and after I will give these goods to him I cannot doe this without deed An election condition covenant assent licence or liberty Dier 281. cannot be created and annexed to an estate of inheritance or free-hold without deed A priviledge to hold land for life without impeachment of wast Offices Co. 9. 9. is not grantable without deed Offices for the most part are not grantable without deed And yet some inferiour offices as Stewardships Bailiwicks and the like are for such officers a Lord of a Manor may retain by word without deed Most chattels reall and personall may be given and granted without Perk. Sect. 57. 60. Bro. Done i. Dier 370. 5 H. 7. 35 36. Plow 150. deed And therefore if a man by word of mouth grant give or Chattels sell me his lease for years the wardship of body and land or the wardship of land that he hath by reason of a tenure by Knights service or by grant from the King or grant or sell mee the trees standing upon his ground the corn growing upon his land his horse sword plate or other houshold stuffe this is a good grant or gift But the wardship of the body of an heir only cannot be granted without deed So a next presentation cannot be granted without deed If one grant his reversion of land to one and by the same deed What by the same deed Plow 540. granteth a rent out of the same land to another and delivereth the deed to both of them at one time this is good and shall enure first as a grant of the rent to one and then as a grant of the reversion to the other If one convey land to another and the grantee by the same Dier 6. deed doth grant a rent or common to the grantor out of the same land conveyed this is as good as if it were by another deed Dedi Concessi be the most apt words for all kind of grants yet Co. super Litt. By what words of grant it may be by other words and the grant as good as by those words The best way in grants is to grant by words of present time in 35 H. 6. 11. the present tense as well as in the preterperfect tense But a grant by words of the preterperfect tense only as by Dedi concessi only without words of the present tense is good Touching this part two things are requisite 1. That the grantor 2. In respect of the person of the grantor c. and the naming of him And who may be a grantor And how See Feoffement ca. 9. Numb 4. be a person able 2. That if the grant be by deed that he be sufficiently described and set forth either by his proper names or else by some other matter of distinction Note therefore that whosoever Perk. Sect. 3. may be a feoffor may be a grantor And any natural politique or corporate body not prohibited by law as Monke Frier woman covert infant and such like may be a grantor donor c. And the grants of such persons will be good An alien may and is able to grant or give any thing that he is Alien capable of to have or take by grant or gift A person attainted of treason or felony may give or grant his land Perk. Sect. 26. See ch 2. Numb 6. Person attaint or outlawed and this is good against all others besides the King and the Lord of whom his land is held And he may grant or give his goods to relieve himself in prison and this will be good against all others and the King and Lord also A person outlawed in a personall action may give or grant his goods or chattels and the gift or grant will be good against all others but the King The Queen may without the agreement of the King make grants Co. super Litt. 3. Per. Sect. 8.
the like are grantable over in fee simple for life or years and therefore rents or services reserved upon any estate and rents granted out of lands are grantable over in infinitum And if a man have a rent reserved on a particular estate he may grant over parcell of it But a rent or Service suspended cannot be granted Neither can a man grant a rent issuing out of a rent If a rent be granted to me I may grant it over to a stranger before I be seised of it and this grant is void But an Annuity it seemes is not grantable over after the first creation of it And yet if an Annuity be granted to I S and his assignes pro consilio it seemes this Annuity is grantable over Advowsons are grantable in fee simple for life Stat. 32. H. 8 cap. 7. Perk. Sect. 90. Advowsons c. or years from man to man in infinitum Also the presentation to a Church before the Church is void is grantable but when the Church is void that Turne is not grantable for it is then in the nature of a thing in action Also Rectories and tithes and portions of tithes and pensions are grantable from man to man in infinitum Reversions and Remainders are grantable from man to man in fee Perk. Sect. 73. 88. 87. simple fee tail for life or years And if I have a tenant for life of three Reversions and Remainders houses I may grant the reversion of two of them And if I have the reversion of three houses four acres of land I may grant the reversion of two houses of two acres of land And if tenant in taile be of an acre of land the remainder to his right heires he may grant over this remainder by it selfe and yet it is such a thing as the tenant in taile himselfe may barre by a common recovery But if a grant be of land to I S for years the remainder to the right heires I D I D is living this remainder is not grantable so long as I D doth live Commons of pasture of turbary of fishing of estovers are grantable Perk. Sect. 103. Common in fee for life or years from man to man in infinitum * Per 2. Judges against one Hil. 16 Jac. B. R. And yet if a common in grosse and without number be granted to a man and his heires it seemes this is not grantable over to another man But if common for a certaine number of beasts be so granted it seemes the law is otherwise and that this is grantable over in case where the first grant is to the grantee only and not the grantee and his assignes Offices are grantable at first but the great Judiciall offices of Offices Perk. Sect. 101. the kingdome as the offices of the Lord Keeper Chiefe Justices or Chiefe Baron or of other of the Justices or Barons and such like are not grantable over to others neither may they be executed by deputies But the Sheriffes office albeit it be not grantable over yet may it be executed by deputy * Per Lord Keeper 2. Chiefe Just M. 5 Car. in cancellaria The reversion of an office is Prerogative not grantable by a Subject as it is by the King yet a Subject may grant an office Habendum after the death of the present officer and this is good †Co. super Lit. 233. Perk. Sect. 101. The inferior offices also that are offices of trust especially if they concern the person of the grantor howsoever they are grantable at first yet are they not grantable over by the officer to any other unlesse they be granted to them and their assignes and of this sort are the offices of Steward Bailife Receiver Sewer Chamberlaine Carver and the like neither may these be executed by deputy but where the grant is so Licences and authorities are grantable at first for the lives of the Licences Authorities c. 12 E. 7. 25. 13 H 7. 13. parties or for years But the grantees of them cannot assigne them over And therefore if power be given to me to make an award or livery of seisin I may not grant over this power to another And if licence be granted me to walke in another mans garden or to goe through another mans ground I may not give or grant this to another A bare possibility of an interest which is incertaine is not grantable Co. 4. 66. 5. 24. Dier 244. Co 10. 51. And therefore if one have a terme of years in land and by Possibilities his will devise it to I S for his life and afterwards to me for the residue of the yeares or devise it to I S if he live so long as the terme shall last and if he die before the terme end the remainder to me in these cases so long as I S doth live I cannot grant over this possibility So if a lease be made to me and my wife for life the remainder to the survivour of us I may not grant this remainder over to another man But such a possibility being coupled with some present interest is grantable over And therefore if A have foure houses in execution upon a Statute and by course of time it will endure thirteene years and after two of the houses are evicted by Elegit for fifteen years in this case he that hath this execution upon the Statute may assigne over his interest in these two houses for after the execution by the Elegit is satisfied A shall have the two houses againe untill he be satisfied The Lord cannot grant the Perk. Sect. 90. wardship of the heire of his tenant whiles the tenant is living Those things that are inseparably incident to others are not 1 E. 4. 10 grantable without the thing to which they are so incident and belonging Incidents And therefore a Court Baron which is evermore incident Perk. Sect. 104. 5 H. 7. 7. to a Manor is not grantable without the Manor it selfe common appendant to land is not grantable without the land it self to which it doth belong and common of estovers appendant to a house is not grantable without the house it selfe to which it doth belong A rent service or other thing whiles it is wholly in suspense is Suspended things not grantable And therefore if the Lord disseise the tenant or 16 H. 7. 4. Co. super Lit. 314. Bro. Grant 173. Perk. Sect. 88 89. the tenant enfeoffe the Lord upon condition the Lord cannot grant over the Seigniory during this suspension But if one have a rent in fee out of my land and he purchase the same land for life or years in this case it seemes the rent is grantable even whiles the estate of the land doth continue So if the tenant make a lease for yeares or life of the tenancy to the Lord in this case the Lord may grant the Seigniory notwithstanding And yet
but they may be for a lesse time 6. That they be of lands or tenements manurable or corporall 7. That they be made of lands that have been commonly let to farm by the space of 20 years before 8. That there be reserved upon them the ancient and accustomed rent payable to the lessor and his successors during the time 9. That they be not made without impeachment of wast 10. That there be livery of seisin upon them c. where it is requisite 11. If the lease be made according Co. 11. 66. 5. 3. to the exception of the Statute of 1 Eliz. and 13 Eliz. and not warrated by the Statute of 32 H. 8. as in the case of a concurrent lease and it be made by a Bishop or any sole Corporation it must be confirmed by the Deanes and Chapters or others that have interest And if a Parson or Vicar make a lease it is not good but during the Parson or Vicars residence according to the Statute of 13 Eliz. chap. 20. and in this case there needs no confirmation at all 12. Some of the leases that are made by the Colledges and houses of the University c. must have some rent corne reserved Stat. 18 El. cap. 20. upon them * Co. 5. 15. 11 66. 10. 58. Dier 370. And most of these points were agreed by Justice Jones and Just Whitlock at Lent Assises at Gloc. 6 Car. But Bishops Deanes Parsons and such like spirituall persons cannot grant the next advowsons of Churches neither can they grant rents out of their spirituall livings but the same charges will be void after their death And if a Bishop suffer an annuity to be recovered against him by a pretence of title of prescription on a Judgment after a verdict or confession or a Parson in such a case pray in aide of the Patron and so suffer an annuity to be recovered this will not bind the successor And yet a Bishop or any such spirituall person may grant ancient offices of trust of necessity or conveniency as the offices of Chancellor Register Steward Bailife or the like with the ancient fees incident thereunto for the life or lives of the grantees and such grants are good albeit they be made by the Bishops of the new erected Bishopricks and that there be not in them the conditions and properties required in the leases before mentioned so as they be confirmed by the Deane and Chapter But they may not grant any new office nor yet adde any new fee to the old offices And therefore if a Bishop grant an annuity pro consilio impenso impendendo where none was before this will not bind the successor And yet if there be an old fee and there is a new fee added to it in this case it seems it is good for the old fee albeit it be void for the new fee. Neither may they grant their offices otherwise then they have been granted And therefore where the ancient grants of the office have been to one it cannot be now granted to two And where the ancient grants have been to two jointly they may not be now granted in remainder one after another Neither may the grants of these offices be longer then for the life or lives of the grantees And in case where the grant is void the confirmation of the Deane and Chapter will not make it good But here note that albeit in all these cases of leases and grants Co. super Lit. 45. 329. 3. 59. 10. 59. 11 73. 78. 5. 5. not warranted by the Statutes aforesaid the Statutes say the leases Note shall be void yet this is to be understood as against the successors and not against the lessors themselves for the leases are good so long as the lessors live or at least so long as they continue in the place And therefore if such a lease be made by a Deane and Chapter or other Corporation aggregate it is good as against the Deane or other head of the Corporation so long as he doth continue in his place And if a Bishop make any lease or other grant not warranted by the Statute of 1 Eliz. or a Deane and Chapter Master and Fellowes of a Colledge or the like make leases not warranted by the Statute of 13 Eliz. cap. 10. these leases are good against themselves albeit they are void against their successors So as if a private Act of Parliament doth entaile land upon a man and appoint him what estates he shall make and that if he make any other estates they shall be void in this case they shall not be void as to the tenant in taile himselfe that doth make them Leases of Benefices with cure are no longer good then the Parson Stat. 13 El. cap. 20. is resident Leases made by Colledges must have reserved upon them the third part of the rent in Corn. See the Statute of 18 Eliz. cap. 20. If one make a lease to another during the will and pleasure of 8. What shall be said a good lease at will Or not Co. super Lit. 55. 56. 270. 14 H. 8. 12. him that letteth or him that taketh or both for so in effect is every lease at will this is a good lease at will So if one make a feoffment in fee or lease for life c. and doe not make livery of seisin and so perfect the estate the feoffee or lessee hath only an estate at will But if a bargaine and sale be made of land and the same is void or a Corporation grant land and the grant is void by this there is no lease at will made Leases for lives or yeares are of three natures some be good in 9. Where a lease for life or years shall be void ipso facto by the death of the lessor or by other meanes Or not but voidable by entry c. And how Co. super Lit. 45. 3. 59. 65. 7 8. law some be voidable by entry and some void without entry And of such as be good in law some be good at the common law as leases made by tenant in fee simple notwithstanding they be for longer time then three lives or twenty one yeares some by act of Parliament as leases made by tenant in taile leases made by a Bishop seised in fee in the right of his Church alone without the Chapter leases made by a man seised in fee simple or fee taile of land in the right of his wife together with his wife for twenty one yeares or three lives according to the Statutes And of such leases as be void also some are void at the common law and that sometimes in presenti as in the cases before of leases for yeares that have no certainty in them or leases for lives made without livery of seisin and the like And some are void in futuro as if a tenant in taile make a lease for yeares warranted or not warranted by the Statute and after die without issue
pence for his suit this grant will not extinguish and determine the services or tenure If there be Lord and tenant and the tenant be disseised and Lit. sect 457. Co. 10. 48. super Lit. 268. after the Lord release all his right c. to the tenant by this release the service or seigniory is extinct for albeit a right regularly cannot be released to him that hath but a bare right yet a seigniory may be released and extinct to him that hath but a bare right in the land But if the tenant make a feoffment in fee and then the Lord release all his right c. to the tenant this is not good to extinguish the seigniory or services but it will discharge all the arrearages If a rent-charge common of pasture or any other profit apprender Lit. sect 480. 536 537. Co. super Lit. 305. Lit. sect 455 456. Co. super Lit. 273. be issuing out of my land and he that hath it doth release it to me this is a good release and will extinguish it But if I be disseised of the land and have but a right at the time of the release made the release is not good as it is in the case of a rent-service and a seigniory But if lands be given to me in tail or for life rendring rent and I be disseised and after the donor release to me all his right in the land this is a good release and shall extinguish the rent So if in this case where I am tenant in tail and I make a feoffment in fee rendring rent and after I release to the feoffee this is a good release and hereby the rent is extinct And if two coparceners be of a rent and one of them take the terretenant to husband and after either of them release these releases will be good If one disseise me of land and then grant a rent-charge out of Lit. sect 527. Co. super Lit. 300. the land and I reciting the same grant release to the grantee this release it seems is good and will bar me so as after my reentry I shall not be able to avoid it If two have the grant of the next advowson or avoidance of a Co. super Lit. 270. Of an Advowson c. Church before it be void one of them may release to the other but afterwards they cannot If A make a feoffment in fee gift in tail lease for life or years to Co. 1. 112. Perk. sect 823. 764. Of a Condition B on condition that upon such a contingent it shall be void in this case A may before the condition broken release all his right in the land or release the condition to B and this will be good to make the estate absolute and to discharge the condition So if a feoffee on condition make a gift in tail or lease for life and after the feoffor release to the donee or lessee this is a good release to discharge the condition So if a copyholder surrender to the use of anothrr on condition and this is presented to be without condition and after the surrendror doth release to him to whose use the surrender was made all his right c. this is a good release and doth extinguish the condition But if a disseisor make a feoffment on condition and the disseisee release to the feoffee on condition howsoever this doth bar the right of the disseisee yet it doth not discharge the condition Where a power or authority is such that doth respect the benefit Co. 1. 112 113 173 174. Of a power of revocation of the relessor as in the usuall cases of power of revocation of uses when the feoffor c. hath power to alter change determine or revoke the uses being intended for his benefit and he release to any one that hath a freehold in possession reversion or remainder by the former limitation this is a good release and doth extinguish the power and make the estates that were before defeasible absolute and it doth seclude him from any power of alteration or revocation But if the power be collaterall or to the use of a stranger and nothing to the benefit of him that makes the release as if A make a feoffment to B to divers uses provided that B shall revoke the uses and B release to any one of them that hath a use this doth not extinguish the power as in case where the power is given to A and A doth release it If a feoffment be made with warranty and the feoffee release Of a warranty the warranty this doth extinct it And so it is of other warranties But if tenant in tail release the warranty annexed to his estate tail this doth not extinguish this warranty Any man may release any debt or duty due to himself Also Of debts and other duties personall Bro. Release 88. 21 H. 7. 29. Co. 5. 27. a man may discharge or release any thing due or any wrong done to his wife before or after the mariage And therefore if a trespasse were done or a promise were made to my wife before 1. In respect of the persons the mariage I may at any time during the mariage release this So if any wrong be done or obligation statute or promise Husband and wife made to her alone or to her and me together at any time during the mariage I alone may release and discharge this And if my wife be an executrix to any other man I may release any debt or duty due to the testator And if a legacy be given to a woman sole to be paid at Michaelmas Per ch Justice B. R. Mich. 17 Ja. next and I mary with her and I release the legacy before the day it seems by this the legacy is gone An infant executor may release a debt duly paid unto him of Infant Co. 5. 27. the testators debt But if he release that which he doth not receive it is a void release And regularly the release of an infant is void An executor before probate of the Will may release a debt or Co. 5. 27. 9. 39. 2. In respect of the time duty due to the testator and this release is good to bar him A future or contingent promise may be released and discharged Trin. 14 Ja. in Eltons case before the contingent happen A debt on an obligation or rent may also be released before the day of payment as well as after but not by the same words And therefore if one promise to I S that upon the surrender of I S he will pay him an hundred ten pound and after the promise and before the surrender he release this debt this doth discharge the debt But if the promise be that if the surrendree shall sell the land and shall have five hundred pound that then he shall pay to the surrendror an hundred pound more and the surrendror before sale release this
cannot afterwards accept it or intermeddle with it But herein this difference must be observed That where there bee many Executors named and made and they being cited soâ—e of them only do appear and refuse to accept it â—he rest of the Executors being then living and after some or one of the rest of the Executors prove the Will or take upon him the Executorship in â—â—is case and notwithstanning this refusall they that doe refuse may afterwards at any time at least during the life time of their Co-executors that did accept it accept thereof and intermeddle therewith as far forth as either of the rest And therefore in this case howsoever the Executors refusing shall not be charged in any suite against all the Executors for any thing due from the Testator but they may by â—heir plea avoid it yet the Executors accepting cannot sue for any thing due to the Testator nor be sued for any thing due from the Testator but they must sue and be sued in the names of themselves and their Co executors that do refuse also And if there be 3 Executors and two of them prove the Will and the third refuse yet this third Executor alone may release any debt due to the Testator But if there be but one Executor made and â—e alone or if there be many made and they do all together refuse before the Ordinary to take upon him or them the administration in this case the Testator is so farre forth said to be dead intestate and thereupon therefore the Ordinary may grant the administration of the goods of the deceased and then the Executor or Executors can never after accept thereof or intermeddle therewith And if one or more of the Executors refuse and the rest accept if he or they which accept die before he or they that refused accept it seemes in this case they can never afterwards accept it but the Administration must bee granted If one be sued as Executor or Administrator and he plead to the Suit ne unques Executor i. e. he was never Executor or Administrator See the cases before if he have not in truth intermedled before this Plea is a refusall of the Executorship or administration and therefore he can never afterwards accept or intermeddle with the Executorship or Administration Every intermedling with the goods of the deceased or with the office and work of an executor shall not be said to be such an administration Coo. 9. 37. 〈◊〉 34. Dâ—er 105. â—eâ—w 63. Bâ—oo as to amount unto an acceptance of the executorship or administration and so to make a man chargable as executor or administrator And therefore if a man that is an executor or administrator do only lay up and preserve the goods of the deceased or command Administrator 35. 36. Fitz. Administrator 7. 〈◊〉 Execâ—tor 165. 〈◊〉 H. 6. 6. Dyer 13â— another to take away the goods of the deceased from one that hath them in his keeping or see the deceased buried in a decent manner and for that purpose use and if need be sell some of his goods to do it or make an â—nventâ—ry of the goods and chattels of the deceased or prove the Testators Will with his owne money or take his own goods lying amongst the goods of the deceased or take and use some of the goods of the deceased only by mistake or as a trespastâ—r or by the delivery of another or take and dispose any of the goods of the deceased when the executor or administrator doth challenge them as his owne and in his own right or if he redeeme any of the goods of the deceased with his own money when they are pledged to the full value and the day of redemption is past as neither of these acts will make a stranger an executor of his own wrong Exâ—â—tor of his own wrong so nâ—ither will they amount to an acceptance of the executorship and make the executor or administrator chargable as executor or administrator But if a man that is an executor or administrator shall sue by that name for any debt due to the deceased or being sued by that name for any debt or duty due from the deceased shall imparle to the Suite or plead any other plea besides ne unques Executor or shall take into his hands the goods of the deceased and convert them to his owne use and alte the property by sale gift or otherwise and all this as the goods of the deceased and so it shall be intended against him if he do not declare the contrary that he doth take and use them as his own c. or if he deliver the goods of the deceased to Creditors or Legataries in satisfaction of their debts or Legacies or receive any debt due to the deceased and give a release for the same or release any debt due to him before it be paid or pay any'debt due from the deceased except it be with his own money any or either of these acts will amount unto an acceptance of the Executorship and therefore after an Executor or Administrator hath done any such act he can never after refuse the Executorship or Administration If a woman sole be made an Executrix to another and she marry â—â—oo Executor 14â— a husband before she intermeddle with the estate and then her husband doth administer this is such an acceptance as will bind her and she can never afterwards refuse it The Executor or Administrator shall have by vertue of his Executorship 25. What things an Executor or Administrator shall have by vertue of his Executorship or Adminstration And what not First in respect of the nature of the thing or Administration all the chattels reall and personall of the Coo. super Litt 209. 38â— Perk. Sect. 60. â—loâ— 293. Doct. St. 39. 76. Perk. Sect. 8â—3 Coo. 4. 65. 63. 7. â—7 Keâ—â— 118. Testator as well those that are in possession as Leases for years of Land Rent Common or the like Grants of next Advowsons and Presentations Wardships of heirs by reason of tenures in Capite or Knights Service corn growing and cut trees and grasse cut and severed cattell money plate houshold stuffe and the like as also those that are in action as right and interest of executions upon Judgements Statutes Obligations Causes of action and the like He shall have also all other things that are of the nature of chattels b Coo. supeâ— Litt. â—9 Dyâ—t â—â—0 283. Dyer 24. Broo. Executor 143. And therefore the executor or administrator shall have the two years of the heir female that is in Ward a relief or an advowson that is fallen and yet if a Bishop have title to present by the vacation of a Church and then he dye in this case the King and not the executor or administrator of the Bishop shall present And if the Lord have a greater estate in the Seigniory then for life or years it is said the executor or administrator shall not have the relief