which issue is found for the Demandant whereupon he recovereth the Tenant albeit Assets do after descend shall never have a scire fac upon the said Judgement for that by his false plea he hath lost the benefit of the said Statute fol. 366. a. Touching the third sufficient hath been spoken before For the last Nota That if the husband be seized of lands in right of his wife and maketh a Feoffment in fee with Warranty the wife dyeth and the husband dyeth this Warranty shall not binde the heir of the wife without Assets albeit the husband be not Tenant by the Curtesie 8 E. 2. gar 81. 18. E. 3. 51. A Warranty may not onely be annexed to Freeholds or Inheritance corporeal which pass by Livery as houses and lands but also to Freeholds or Inheritances incorporeal which lie in grant as Advowsons and to Rents Common Estovers c. which issue out of Lands or Tenements and not onely to Inheritances in esse but also to Rents Commons c. newly created As a man some say may grant a Rent c. out of land for life in Tail or in fee with Warranty for although there can be no Title precedent to the Rent yet there may be a Title precedent to the land out of which it issueth before the grant of the Rent which rent may be avoided by the recovery of the land in which case the grantee may help himself by a Warrantia Cartae upon the especial matter and so a Warranty in Law may extend to a rent c. newly created and therefore if a rent newly created be granted in exchange for an acre of land this exchange is good and every exchange implyeth a Warranty in Law and so a Rent newly created may be granted for owelty of partition 2 H. 4. 13. 30 H 8. Dyer 42. Temps E. 1. Admeasurement 16. 32 E. 1. Vouch 294. 30 E. 1. Exch. 16. 9 E. 4. 15. 15 E. 4. 9. 29 Ass 13. A man seised of a rent seck issuing out of the Manor of D. taketh a wife the husband releaseth to the Terre-tenant and Warranteth Tenementa praedicta and dieth the wife bringeth a Writ of Dower of the rent the Terre-tenant shall vouch for that albeit the release enured by way of Extinguishment yet the Warranty extended to it and by Warranty of the land all rents c. issuing out of the land that are suspended or discharged at the time of the Waranty created are waranted also Vide Sect. 741. 45 E. 3. Vouch. 72. 9 E. 3. 78. 18 E. 3. 55. 30 E. 3. 30. 21 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 10 E. 4. 9. b. 21 E. 4. 26. 14 H. 8. 6. 30 H. 8. Dyer 42. Sect. 698. Fo. 366. b. A Warranty that commenceth by disseisin is so called because Regularily the Conveyance whereunto the warranty is annexed doth work a disseisin The Example that Littleton putteth of this kinde of Warranty have four qulities 1. That the disseisin is done immediately to the heir that is to be bound l. 5. fo 79. Fitzh c. and yet if one brother make a gift in Tail to another and the Uncle disseise the Donee and infeoff another with Warranty the Uncle dyeth and the Warranty descend upon the Donee and then the Donee dyeth without issue albeit the disseisin was done to the Donee and not to the Donor yet the Warranty shall not binde him 31 E. 3. garr 28. The Father the Son and a third person are joyntenants in fee the Father maketh a Feoffment in fee of the whole with Warranty and dyeth the Son dyeth the third person shall not * avoid the feoffment * onely for his own part but also for the part of the Son and he shall take advantage that the Warranty commenced by disseisin though the disseisin was done to another fol. 367. a. 2. That the Warranty and disseisin are simul and semel and yet if a man commit a disseisin of intent to make the feoffment in fee with Warranty albeit he make the feoffment many years after the disseisin yet the Law shall adjudge upon the whole matter and by the intent couple the disseisin and the Warranty together 19 H. 8. 12. l. 5. fo 79. b. 3. That the Warranty c if it should binde should binde as a collateral Warranty and therefore commencing by disseisin shall not binde at all A lessee for years may make a feoffment and a fee simple shall passe so as albeit as to the lessor it worketh by disseisin yet between the parties the Waranty annexed to such estate standeth good upon which the feoffee may vouch the feoffor or his heirs as by force of a lineal Warranty Note there is a feoffment de jure and a * feoffment de facto If the Lord be Gardein of the Land or if the Tenant make a lease to the Lord for years or if the Lord be Tenant by statute Merchant or Staple or by Elegit of the Tenancy and make a feoffment in fee he hereby doth extinguish his Seignory although having regard to the lessor it is a disseisin Vide Sect. 611. Brit. ca. Disseisin 50 E. 3. 12. b. 8 H. 7. 5. 19 E. 2. Ass 400. 3 E. 4. 17. 12 E. 4. 12. 10 E. 4. 18. F.N.B. 201. l. 3. f. 78. Fermors case * Temps E. 1. Counterplea de Vouch. 126. 50 E. 3. ibid. 124. The 4. quality is a disseisin but that is put for an example For if the Tenant dyeth and an Ancestor of the Lord enter before the entry of the Lord and make a feoffment in fee with Warranty and dyeth this Warranty shall not binde the Lord because it commenceth by wrong being in nature of an Abatement sic de similibus Sect. 700. Fol. 367. b. If the purchase were to the Father and the Son and the heirs of the Son and the Father maketh a feoffment in fee with Warranty if the Son enter in the life of the Father and the feoffee re-enter the Father dyeth the Son shall have an Assize of the whole 13 Ass 8. 13 E. 3. gar 24. 25. 37. 22 H. 6. 51. 8 H. 7. 6. But if the Son had not entred in the life of the Father then for the Fathers moity it had been a barre to the Son for that therein he had an estate for life and therefore the Warranty as to that moity had been collateral to the Son and by disseisin for the Sons moity and so a Warranty defeated in part and stand good in part If a man of full age and an Infant make a feoffment in fee with Warranty it is good for the whole against the man of full age and void against the Infant For albeit the feoffment of an Infant passing by Livery of seisin be voidable yet his Warranty which taketh effect onely by Deed is meerly void Temps E. 1. Voucher 207. 39. E. 3. 26. John Londons Case 14. H. 6. Sect. 701. Fo 368. a. b. Duo non possunt in solido rem
entry of him that Right hath may be taken away 3. The Remedies and in what Cases the same may be prevented or avoided 4. How a man may be barted of his Right for ever and in what Cases the same may be prevented or avoided vide lib. Nota fol. 163. 2 ouâ— 3 parceners sont forsque un heire a lour Auncest ' for albeit where there be two parceners they have moities in the lands descended to them yet are they both but one heire vid. S. 8. vers fin Nota diversitat ' between a Descent which is an act of the Law and a Purchase which is an act of the party For if a man hath two daughters c. and one of them is attaint of Felony the father dye hâ— the one moity shall descend to the one daughter and the other shall escheat But if a man make a lease for life the remainder to the right heirs of A. being dead who hath issue two daughters and one is attainted c. the remainder is void for the whole for that both the daughters should have been but one heir Fleta l. 5. c 9. l. 6 c. 47. fo 164. a. vide qu. Sunt autem plures participes quasi unum corpus in eo quod unum jus habent oportet quod corpus sit integrum quod in nulla parte sit defectum If lands be given to a man and to the heires females of his body and he hath issue a Son and a Daughter and dyeth the Daughter shall have the land by descent but if a remainder be limited to the heirs females of the body of I. S. c. the daughter shall never take it by Purchase for that shee is not heir female of the body of I. S. because he hath a Son And when the right heir doth claim by purchase he must be a compleat heir in judgement of Law And as they be but one heir and yet severall persons so have they one Free-hold in the land so long as it remains undivided in respect of any strangers Praecipe But between themselves to many purposes they have in Judgment of Law severall Free-holds for the one of them may infeoff another of her part and make livery 10 E 4. 17. E. 3. 46. fol. 164. a. vide qu. Note a diversity inter descensum in capita in stirpes If a man hath issue two daughters and dyeth this descent is in capita viz. that every shall inherit alike But if a man hath issue two daughters and the eldest daughter hath issue three daughters and the yongest one daughter all these four shall inherit but the daughter of the yongest shall have as much as the three daughters of the eldest ratione stirpium and not ratione capitum for every daughter hath a severall root c. Men descending of daughters may bee Coparceners as well as women and shall joyntly implead and be impleaded Item est alia actio mixta quae dicitur actio Familiae hirciscundae locum habet inter eos qui communem habent haeredit ' c. Et locum habet ut videtur inter cohaeredes ubi agitur de proparte sororum vel inter alios ubi res inter partes cohaeredes dividi debeat sicut sunt plures forores quae sunt quasi unus haeres vel inter plures fratres qui sunt quasi unus haeres ratione rei quae divisibilis est inter plures masculos c. Bract. l. 2. fol. 66. 71 c. l. 5. fol 443. b. vide qu. Sunt aliae res haereditariae quae veniunt in partitionem quae â—um dividi non possunt conceduntur uni ita quod aliae cohaeheredes alibi de communi haereditate habeant ad valorem sicut sunt vivaria Piscariae parci vel saltem quod partem habeant pro defectu sicut secundum piscem tertium vel quartum vel secundum actâ—m tertium vel quartum retis Item in parcis secundam tertiam aut quartam damam Bract. l. 2. 76. fo 165. a. Regnum non est divisibile Praterea sceptrum Ilione quod gesserat olim Maxima natarum Priami Virg. 1. Aeneid If there be two Coparceners of certain lands with Warrant and they make partition c. the Warranty shal remain because they are compellable to make partition Tho. de Eberston in Foresta de Pickering had kept time our of minde a Woodward for keeping of the Woods parcel of that Manor and had the bark of all the Trees felled c. as belonging to his Manor and this was adjudged a good prescription Itin. Pickr 8 E. 3. Rot. 34. Sect. 243 244 245. If Coparceners make partition at full age and unmarried and of sanae memoriae of lands in fee simple it is good and firm for ever albeit the the values be unequall but if it be of lands intailed c. it shall binde the parties themselves but not their issues unless it be equall Or if any be Covert it shall binde the husband but not the wife or her heires It shall not binde the Infant c. Modus conventio vincunt legem Pacto aliquid licitum est quod sine pacto non admittitur Quilibet potest renunciare juri pro se introduct ' Conventio autem privatorum non potest publico juri derogare Aeiâ—neâ—ia semper est perfren da propter privilegium aetatis sed esto quod filia primogenita relicto nepote vel nepte in vita patris vel matris decesserit praeferenda erit soror antenata tali nepoti vel nepti quantuÌ„ ad Ecisnetiam quia mortem parentum expectant If there be divers Coparceners of an Advowson and they cannot agree to present the Law doth give the first presentment to the eldest and this privilege shall descend to her issue nay her Assigns shall have it and so shall her husband that is tenant by the Courtesie c. But it is otherwise of a partition in Deed by the act of the party Sic vide diversit ' fol. 166. b. Cujus est divisio alterius est electio Dedi vobis possessionem quam dividetis sorte Numb c. 26. Sect. 247. If one Coparcener maketh a lease pur ans yet a Writ of Partition doth lie but otherwise is it if one or both make a lease for life because non in simul pro indiviso tenent and the writ of Partition must be against the Tenant of the Freehold 11 H. 4. 3. F.N.B. 62. g. And if one Coparcener disseise another a Writ of Partition doth not lie c. for that non pro indiviso tenent c. 4 H. 7. 9. 11 Ass 23. If two Coparcerners have two Manors by descent and they make partition that the one shall have one Manor for one year and the other the other Manor for this year and so alternis vicibus to them and their heirs this is a good partition Temps E. 1. partit 21. F.N.B. 62. 1. Of
performing of the condition c. and yet the lessor himself was never bound to the warranty but it hath relation from the first livery and by this it appeareth that a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may work in the beginning But otherwise it is if a man grant a Seigniory for yeares upon condition to have fee with warranty in forma praedicta c. And so it is if a man make a Lease for yeares the remainder in fee and warrant the Land in forma predicta he in the remainder cannot take benefit of the Warranty because he is not party to the Deed and immediately he cannot take she were party to the Deed because he is named after the â—abendum and the estate for yeares is not capable of a warranty And so it is if Land be given to A. and B. so long as they â—oyntly together live the remainder to the right heires of â—â—m that dieth first and warrant the land in forma predicta A. dyeth his heir shall have the warranty and yet the remainder vested not during the life of A. for the death of A. must precede the remainder and yet shall the heir of A. have the Land by discent Sest 722. Fol. 378. b. Si le 1. fits alienast c. By the Alienation of the Donee two things are wrought 1. The Franktenement and Fee is in the Alienee 2. The reversion is devested out of the donor and therefore by the alienation that transferreth the freehold and fee simple to the Alienee there can no remainder be raised and vested in the second sonne 27 H. 8. 24. 6. R. 2. quod jur clam 23. Also an estate of an inheritance in Lands and Tenements cannot cease or be void before the state be defeated by entry then if this remainder should be good then must it give an entry upon the Alienee to him that had no right before which should be against the expresse rule of Law viz. That an estate cannot be given to a stranger to avoid a voidable Act. One Alienation cannot vest an estate of one and the same Land to two severall persons at one time If a man seised of an Advowson in fee by his deed grant the next presentation to A. and before the Church become void by another Deed grant the next presentation of the same Church to B. the second grant is void for A. had the same granted to him before and the grantee shall not have the second avoidance by construction to have the next avoidance which the grantor might lawfully grant for the grant of the next avoidance doth not import the second presentation But if a man seised of an Advowson in fee take wife now by Act in Law is the wife intitled to the third presentation if the husband dye before The husband grants the third presentation to another the husband dye the heire shall present twice the wife shall have the third presentation and the grantee the fourth for in this case it shall be taken the third Presentation which he might lawfully grant and so note a diversity between a Title by act in Law and by act of the party for the act in Law shall work no prejudice to the grantee Periculosum est res novas inusit at as inducere Eventus varios res nova semper habet vide §. 87 c. Sect. 723. fol. 379. a. Here by the Opinion of Littleton the Donor may re-enter for the condition broken for Vtile per inutile non vitiatur which being in case of a condition for the defeating of an estate is worthy of Observation And it is to be noted That after the death of the Donor the condition descendeth to the eldest Sonne and consequently his alienation doth extinguish the same for ever wherein the weaknesse of this invention appeareth and therefore Littleton here saith That it seemeth that the Donor may re-enter and speaketh nothing of his heirs A man hath issue two Sons and maketh a gift in Tail to the eldest the remainder in fee to the puisne upon condition that the eldest shall not make any discontinuance with warranty to barre him in the remainder and if he doth that then the puisne Son and his heirs shall re-enter the eldest maketh a feoffment in fee with warranty the Father dyeth the eldest Son dyeth without issue the puisne may enter But if the discontinuance had been after the death of the Father the puisne could not have entred In this case four points are to be observed 1. As Littleton here saith the entry for the breach of the Condition is given to the Father and not to the puisne Sonne 2. That by the death of the Father the condition descends to the elder Sonne and is but suspended and is revived by the death of the eldest Son without issue and descendeth to the yongest Son 41 E. 3. vide Sect. 446. 3. That the feoffment made in the life of the Father cannot give away a condition that is collaterall as it may doe a right 4. That a Warranty cannot binde a Title of entry for a condition broken but if the discontinuance had been made after the death of the Father it had extinguisht the condition which case is put to open the reason of our Authors opinion The ancient Judges and Sages of the Law have ever as it appeareth in our Books suppressed innovations and novelties in the beginning as soon as they have offered to creep up lest the quiet of the Common-wealth might be disturbed 31 Ed. 3. Gager delivery 5. 22 Ass 12. 38 Ed. 3. 1. 2 H. 4. 18 c. And so have Acts of Parliament done the like 1 Ed. 3. cap. 15. Stat. 3. 18 Ed. 3. cap. 1. 6. 4 Hen 4. cap. 2. 11 Hen. 6. cap. 23. 12 Ed. 4. cap. 8 c. Sect. 726. fol. 380. a. Here note this diversity If the heir be within age at the time of the discent of the Warranty he may enter and avoid the estate either within age or at any time after his full age 18 Ed. 4. 13. 35 Hen. 6. 63. 28 Ass 28. 32 Ed. 3. garr 30. and Littleton saith well That the Infant in this case may enter upon the Alienee for if he bring his action against him he shall be barred by this Warranty so long as the state whereunto the Warranty is annexed continues and be not defeated by entry of the heir but if he be within age at the time of the alienation with Warranty and become of full age before the discent of the Warranty the Warranty shall barre him for ever Our Author putteth his cases where the entry of the Infant is lawfull for where it is not lawfull when the Warranty descendeth the Warranty doth binde the Infant as well as a man of full age and the reason is because the state whereunto the Warranty was annexed continueth and cannot be avoided but by action in which action
solemnized for that before marriage the woman is not intituled to have dower certainty is the mother of quiet and repose Fol. 34. b. The Law hath provided quod vidua post mortem mariti sui non det aliquid pro dote sua maneat in Capitali messuagio mariti sui per 40. dies post obitum mariti sui infra quos dies assignetur ei dos sua nisi prius ei assignata fuerit c. habeat rationabile estoverium suum interim in Communi yet because there was no penalty c. inflicted the Tenant of the land may drive her to sue for her Dower Mag. Chart. ca. 7. If the heir c. put her out within the 40 days c. She may have her Writ de quarentina habenda A jointure made in satisfaction of Dower is now the furest way c. fol. 34. b. Wheresoever the Writ demands Land Rent c. In certain the demandant after judgement may enter or distrein before any seisin delivered to him by the Sheriff upon a Writ of habere facias seisinam But in Dower c. the demandant cannot enter c. until execution sued for the Writ demandeth nothing in certain Assignment of Dower must either must be by the Sheriff by the Kings writ or else by the heir or other Tenant of Land by consent and agreement between them If the husband make several feoffments of several parcels and dieth and one Feoffee assign Dower to the wife of parcel of Land in satisfaction c. The other Feoffees shall take no benefit of this assignment because they are strangers thereunto and cannot plead the same But in that case if the husband dieth seised of other lands in see simple c. And his heir endoweth the wife of certain of those lands in full satisfaction c. This assignment is good and the several Feoffees shall take advantage of it And therefore if the wife bring a writ of dower against any of them they may vouch the heir c. So as there is a privity in this respect between the heir and the feoffees and by this means the same assignment may be pleaded by the heir that made it 33 Ed. 3. tit Judgm 254 c. The assignment must be certain and absolute and by such as have a freehold or against whom a writ of dower doth lie c. fol. 35. a. Vide lib. There needeth neither livery of seisin nor writing to any assignment of dower becaus it is due of common right Assignment must be of some part of the land or of a rent c. issuing out of the same Dier 91. Sect. 40. Tenant for life of a carue of land the reversion to the father in fee the son and heir apparent endoweth his wife c. Ex assensu patris Tenant for life dieth the husband dieth this is no good endowment c. because the father at the time of the assent had but a reversion expectant upon a freehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet Fo. 35. a. If the heir apparent be within age yet the endowment ex assensu patris is good but otherwise it is of dower ad ostiū ecclesiae 2 H. 3. Dower 199. Fo. 35. b. Ten things are necessarily incident to a deed viz. First Writing 2. In Parchment or Paper 3. A person able to contract 4. By a sufficient name 5. A person able to be contracted with 6. By a sufficient name 7. A thing to be contracted for 8. Apt words required by Law 9. Sealing 10. Delivery Tradition of a deed only to the party to whom it is made is sufficient and then when words are contrary to the Act which is the delivery the words are of none effect non quod dictum est sed quod factum est inspicitur But it may be delivered to a stranger as an escrow c. Because the bare Act of delivery to him without words worketh nothing fol. 36. a. H. 12. R. in C.B. Dier 95. Cartarum alia regia alia privatorum regiarum alia privata alia communis alia universitatis Privatorum alia de puro Feoffamento simplici alia de Feoff conditionali sive conventionali alia de recognitione pura vel conditionali alia de quiete clamantia alia de confirmatione c. Verba intentioni non è contra debent inservire Carta non est nisi vestimentum donationis sive orationis Fleta l. 6. ca. 28. Nemo tenetur armare ad versarium suum contra se Scriptum est instrumentum ad instruendum quod mens vult Carta est legatus mentis Benignae sunt faciendae interpretationes cartarum propter simplicitatem laicorum ut res magis valeat quam pereat Bract. l. 2. fo 94 c. Nihil tam convenias est naturali aequitati quam voluntatem domini volentis rem suam in alium transferre ratam habere Plow Com. fo 161. b. Re verbis scripto consensu traditione Junctura vestes sumere pacta solent Pl. Co. 161. Verba cartarum fortius accipiuntur contra proferentem Generale dictum generaliter est intelligendum Verba debent intelligi secundum subictam materiam Carta de non ente non valet Sect. 41. A jointure was no bar of Dower at the Common Law For a right or title that one hath to a Freehold cannot be barred by acceptance of collateral satisfaction But now by the statute of 27 H. 8. If a jointure be made to the wife according to the purvieu of that statute it is a bar of her Dower Six things are required to a perfect Jointure 1. It is to take effect for her life in possession or profit presently after the decease of her husband 2. That it be for term of her own life or greater estate 3. It must be made to her self and to no other for her 4. It must be made in satisfaction of her whole dower and not of part c. 5. It must bee either expressed or averred to be in satisfaction c. 6. It may be made either before or after marriage If the jointure be made before marriage the wife cannot wave it and claim her dower at the Common Law but if it be made after marriage she may wave the same c. Fo. 36. b. Vide c. Dier 358. The wife shall not be barred of her jointure albeit her husband commit Treason or Felony as she shall be of her Dower ad ostium Eccle. c. By the Common Law But now at this day by the statute of the 1 Ed. 6. c. 2. and 5 Ed. 6. c. 11. The wife of a man attainted of Felony shall not lose her dower A jointure made to the wife under or above the age of nine years is good and so if Dower ad ostium ecclesiae c. being made by assent c.
E. 4. 1. b. 4 E. 4. 10. 3. For matters within the Realm 5 E. 4. 30. the Custom of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder 4. By Certificate of the Sheriff upon a Writ to him directed 10 H 10. in case of Priviledge if one be a Citizen or a Forreiner 5. Tryal of Records by Certificate of the Judges in whose custody they are by Law All these be in Temporal causes 6. In causes Ecclesiastical as loyalty in Marriage general Bastardy Excommengment Profession c. which are to be tried by the Certificate of the Ordinary Also if a Subject of the King be killed by another of his Subjects out of England in any Forreign Country the wife or he that is heir of the dead may have an Appeal for this Murther or Homicide before the Constable and the Marshal whose sentence is upon the Testimony of Witnesses or Combate fo 74. a. vide lib. Stat. 1 H. 4. cap. 14. 13 H. 4. fol. 5. c. Anno 25 El c. CHAP. IV. Knights service Sect. 103. TEnure per homage fealty escuage est a tener per service de Chivaler trait a luy gard mariage reliefe Si haereditas teneatur per servitium militare tunc per leges infans ipse haereditas ejus c. per dominum feodi illius custodientur c. Fortesc ca. 44. Audacter quilibet facit quod se scire non diffidit Amongst the Lawes of St Edward the Confessor it is thus provided Debent enim universi liberi homines c. secundum foedum suum sciendum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum domini Regis explendum peragendum Lambert fo 135. a. And William the Conqueror confirmed that Law c. And therefore if after the Lord hath the Wardship of the body and land the Lord doth release to the Infant his right in the Seigniory or the Seigniory descendeth to the Infant he shall be out of Ward c. for he was in Ward in respect he was not able to do those services which he ought to do to his Lord which now are extinct cessante causa cessat causatum fol. 76. a. Regularly there be six incidents to Knights service viz. Two of Honor and Submission as Homage and Fealty and four of Profit as Escuage Ward Marriage and Relief Also these be other incidents to Knights service besides these as aid per faire fitz Chivalrer and aid per file marier c. Relevium is derived from Relevare Quia haereditas quae jacens fuit per antecessoris decessum relevatur in manus haeredum propter factam relevationem facienda erit ab haerede quaedam praestatio quae dicitur relevium Bract. lib. 2. ca. 36. fo 84. By custome the heires of him that holdeth in Socage may be in a word * By the common Law the heir shall not be in ward unlesse he claime as heire by discent Vide Libr. In many Cases the heire shall be in ward albeit the Tenant died not seised c nor in the Homage of the Lord. But if one levy a fine executory as fur grant and render to a man and his heires and he to whom the Land is granted and rendred before execution dieth his heire being within age entreth he shall not be in ward for his ancestor was never * tenant to the Lord. Vide c. If the disseisie die his heire being within age the Lord shall have the wardship of the heir of the body of the disseisee and if the disseisor dieth seised and his heire within age the Lord may seise the wardship of his heire also and of the Land also c. Vide c. For the ease of the heire and for avoiding of danger c. The heire for the most part after his full age sueth out a speciall livery which containeth a beneficiall pardon c. Fo. 77. a. Vide quaere A common person shall have nothing in ward but that which is holden of him But the King by his Prerogative shall not only have such Lands c. which the heire of his Tenant by Knights service in Capite holdeth of others but such inheritances also as are not holden at all of any as rent-charges rent-seck Fayres Markets Warrens Annuities c. Fo. 78. a. Stamf. pr. Fo. 8. * The Law is changed since Littleton wrote in many Cases both for the marriage of the body and for the wardship of the Lands and a farre greater benefit given to the Lords then the common Law gave them and some advantage given to the heires which before they had not As if the Father had made an estate for life or a gift in taile of Lands holden by Knights service to his eldest Son or other heir apparant within age the remainder in Fee to any other and dyed the heir should not have been in ward for this was out of the Stat. Merlebridg But at this day the heir shall be in that case in ward for his body and a third part of his land So if the Father had infeoffed his eldest Son within age and a stranger and the heirs of the son and died the son should have been out of ward but at this day he shall be in ward for his body and for a third part of his moity Fo. 78. a Vide c. The benefits that grew to the subject by acts of Parliament were that Tenants in Fee simple might devise their lands in such manner and form c. Also that the Father might infeoffe his eldest Sonne or other heir lineal or collaterall holden by Knights service and two parts of the Land shall be out of ward Lib. 8. fo 83. fo 163. And both the Statute of 32 and 34 H. 8. Concerning Wills and Wardships are many waies prejudiciall to the heirs as if Tenant by Knights service make a Feoffment in Fee to the use of his wife and heir heirs or to the use of a younger Sonne and his heirs or wholly for the payment of his debts In these cases although nothing at all of the Lands so holden descend to the heir but he is disherited of the same yet his body shall be in ward In facto quod se habet ad bonum malum magis de bono quam de malo lex intendit Lex intendit vicinum vicini facta scire Nulla impossibilia aut inhonesta sunt presumenda vera tamen honesta possibilia Lex semper intendit quod rationi convenit By intendment of Law the heir is not able to do Knights service before his full age of 21. years and therefore hath a gardian c. A woman hath seven ages for several purposes appointed to her by Law as seven years for the Lord to have aid pur file Marr. Nine years to deserve Dower 12. years to consent to marriage
dictum l. 8. fo 155. l. 9. f. 13. l. 11. f. 10. Ex facto jus oritur fo 266. Vide c. Omnis conclusio boni veri judicii sequitur ex bonis veris promiss dictis Jurator Trin. 33 E. 1. in Thesaur utile per inutile non vitiatur M. 28 El. 29. Gomershall account in Ban. R. 32 E. 3. Cessavit 25. 5. 484 485. If the matter and substance of the issue be found it is sufficient S. 58. 35 Ass 8. 1 H. 4. 6. b. 27 H. 8. 22. b. Pl. 515. l. 4. f. 53. Raulins case and Pledols case H. 31. El. Sutton c. Com ban Estopper which bind the interest of the Land as the taking of a lease of a mans own land by deed indenture c. being specially found by the Jury the Court ought to judge according to the speciall matter for albeit estopper Reg. must be pleaded and relied upon by an apt conclusion and the Jury is sworn ad verit dicendam yet when they finde veritatem facti they pursue well their oath and the Court ought to judge according to law So may the Jury find a warranty being given in evidence though it be not pleaded because it bindeth the right unlesse it bee in a writ of right when the Mesc is joyned upon the Meer right 34 E. 3. Droit 29. After the verdict recorded the Jury cannot vary from it Pl. Fremans case 11 H. 4. 2. 20 Ass 12. 5 H. 7. 22. An issue found by verdict shall always be intended true untill it be reversed by attaint and thereupon c. no Supersedeas is grantable by Law If the Jury after evidence at Bar c. do at their own charges eat or drink either before or after they be agreed on their verdict it is finable but it shall not avoid the verdict P. 24 H. 8. Just Spilman Ban. R. 29 H. 8. 37. Dier P. 6 E. 6. Com. Ban. 11 H. 4. 16 17. 24 E. 3. 75. The King cannot be Nonsuit for he is ever present in Court in judgement of Law 21 E. 3. 18. The condition is executed by re-entry and yet the Lessor after his re-entry shall not plead the condition without shewing the deed because he was party and privy to the condition for the parties must shew forth the Deed unlesse it be by the act and wrong of the party but an estranger which is not privy to the condition nor claimeth under the same shall not after the condition is executed in pleading be forced to shew forth the Deed. Pl. 92. 9 H. 7. 3. Lib. 9. 12 13. Downams case 31 Ass p. 21. 10 H. 4. 9. Note that a speciall verdict or at large may be given in any action and upon any issue be the issue generall or speciall 8 E. 4. 29. 11 Eliz. Dyer 283 284. Discretio ē discernere per legem quid sit justum Si à jure discedas vagus eris erunt omnia omnibus incerta l. 10. fo 4. case de Sewers Sect. 367. A verdict is twofold 1. A verdict at large or a speciall verdict because it findeth the speciall matter c. Or leaves it to the judgement of the Court. 2. A generall verdict that is generally found according to the issue as if the issue be not guilty to finde the party guilty or not guilty generally c. There is also a verdict given in open Court and a privy verdict given out of Court before any of the Judges of the Court. To finde the speciall matter is the safest way for the Jury where the case is doubtfull Sect. 369. Lease pur vie rendt rent re-entry sur condition c. ceo est sans fait lessor enter pur non payment c. lessee enter sur le lessor et luy disseist c. en cē case le disseisee navera Ass et enc ' si le lessee soit pl ' et le lessor defendant il bar se lessee par verdict de Ass c. Mes en ceo case lou lessee est defendant sil ne voile plead le lease pur vie c. en bar mes plede nultort nul diss donques le lessor recovera per Assize 4 El. Dyer 207. 8 El. Dyer 246. A lease for life the reversion to the Plaintiff was a good barre in Assize and also that a lease for years the reversion to the Plaintiff might be pleaded in an Assize and so of a Feoffment with Warranty And note a diversity viz. of a lease for life the Tenant shall plead it in barre But in case of a lease for years or of an estate of Tenant by Statute or Elegit the Defendant shall not plead in barre as to say Ass non c. but justifie by force of the lease c. and conclude issint sans tort And if the Tenant of the Freehold be not named he shall plead Nul tenant de franktenement nosme en le breve and in the case of the Feoffment with Warranty he must relye upon the Warranty 18 E. 4. 10. 12 Ass 38. Sect. 370. Si Indenture soit bipartite ou tripartite c. touts les parts del endent ' ne sont que un fait en ley chesc ' part del endent ' est auxi de grand force effect sicome touts les parts ensemble l. 5. fol. 20. Stiles Case An Indenture may be without words but not by words without indenting A Deed poll because it is cut even polled c. Note That if the Feoffor Donor or Lessor seal the part of the Indenture belonging to the Feoffee c. the Indenture is good albeit the feoffee never sealeth the Counterpart belonging to the feoffor fo 229. a. 9 E. 4. 18. Pl. 134. Sect. 371 372. A communi observantia non est recedendum minimè mutanda sunt quae cert ' habuerunt interpretationem Magister rerum usus 17 El. Dyer 342. 12 H. 4. 12. 30 Ass 31. It is provided by the Statute of 38 E. 3. cap. 4. That all penal bonds in the third person be void wherein some of our books seem to differ c. But the Statute was principally intended of the Courts of Rome in which Courts bonds were taken in the third person So as such bonds made out of the Realm are void but other bonds in the third person are Resolved to be good as well as Indentures in the third person 40 E. 3. 1. 2 H 4. 10. 8 E. 4. 5. Brevis via per exempla longa per praecepta It is a safe thing to follow approved Presidents for Nihil simul inventum est perfectum Sect. 273. Fol. 230. b. Si en l'endenture fait en le 3. person ou en le 1. person mention foit fait que le grantor avoit mise solement son seale nemy le grantee donques est l'endent ' tantsolement le fait le grantor Mes lou mention est fait que le grantee ad mise son seale c.
54. 39 E. 3. 25 26. Sect. 396 397. Note that Ass mort Antecess non tenet inter conjunctas personas sicut fratres sorores c. for these are privy in blood Brac. l. 4. f. 261 282. 29 Ass 11. F.N.B. 196. b. Albeit the eldest son hath issue and dye and after the yongest son or his heir enter and many discents be cast in his line yet may the heirs of the eldest son enter in respect of the privity of the blood and of the same claim by one Title but otherwise it is if the Feoffee of the yongest son dye seised c. and admit that the yongest son be of the half blood to his brother yet he is of the whole blood to his Father and therefore if he enter by abatement and so gain a fee simple and dye seised it shall not barre his elder brother of his entry But if the eldest son enter and gain an actual possession and seisin then the entry of the yongest is a disseisin Br. ent 27. Si le puisne frere ent apres le mort le pier mor. seisin c. leign frere poit ent sur lissue c. pur ceo que ambiz les freres claime per m. le title auterment eÌ„ ou leigne frere ent c. puis eÌ„ disseisin per le puisne frere que mort seisee c. If the Father make a lease for life and hath issue two Sons and dyeth and the Tenant for life dye and the yongest Son intrude and dye seised this discent shall not take away the entry of the eldest But if the Father had made a lease for years it had been otherwise for that the possession of the lessee for years maketh an actual freehold in the eldest Son Fol. 243. a. 22 E. 4. 4. If two Coparceners be and they severally present to the Ordinary yet the Church is not litigious because they claim all by one Title Doct and St. cap. 30. fol. 117. If upon a Writ ad diem clau extr the yongest Son be found heir the eldest Son hath no remedy by the Common Law because they claimed by one Title but otherwise it is if they claim by several Titles But this is now holpen by the Statute of 2 E. 6. c. 8. If two Parsons be in debate for Tythes which amount to above the fourth part and one man is Patron of both Churches no Judicavit doth lie for that both Incumbents claim by one and the same Patron 2 H. 7. 12. a. There is a great diversity holden in our books where one hath a colour or pretence of right and when he hath none at all 2 E. 2. Bastar 19. 21 E. 3. 34. 22 Ass 85. 11 E. 3. Ass 88. 21 H. 6. 14. 11 E. 3. Age 3. Sect. 400. Sect. 398. When one Coparcener enters generally and taketh the profits this shall be accounted in Law the entry of them both and no devesting of the moity of her sister 21 Ass 19. 21 E. 3. 7. 27. 32. 4 H. 7. 10. 16 H. 7. 4. fo 243. b. If the privity of Coparcenary be once destroyed a dying seised shall take away entry c. 28 Ass 30. Vide S. 710. Sect. 399. Filius natus vel filia nata ex justa uxore appellatur in legibus Angliae filius mulieratus seu filia mulierata Glanvil lib. 2. ca. 2. Bract. 5. ca. 10. Brit. ca. 70. Bastardus dicitur à graeco verbo Bassaris i. Meretrix seu concubina Vide S. 188. Fleta l. 1. c. 5. vide S. 380. Manseribus scortum notho moechus dedit ortum Vt seges è spica sic spurius est ab amica If the husband be within the four Seas and the wife hath issue c. in that case filiatio non potest probari Bract. lib. 4. fo 278 279. 7 H. 4. 9. 43 E. 3. 10. 29 Ass 54. If the issue be born within a moneth or a day after marriage between parties of full lawful age the childe is legitimate 18 E. 4. 28. fo 244. â— It is holden that the mulier be within age at the time of the dying seised of the Bastard that nevertheless he shall be barred because the issue of the bastard is in judgement of Law become lawful heir and the Law doth prefer legitimation before the priviledge of infancy justum non est aliquem post mortem facere bastardum qui toto tempore vitae suae pro legitimo habebatur 5 E. 2. Discent Br. 49. 31 Ass 18. 22. Pl. Com. Stowels case 10 E. 3. 2. If a man hath issue a Son being bastard eigne and a daughter and the daughter is married the Father dyeth the son entreth and dyeth seised this shall barre the feme covert 13 E. 1. Bast 28. and the discent in this case of Services Rents Reversions expectant upon estates tail or for life whereupon rents are reserved c. shall binde the right of the mulier but a discent of these shall not drive them that right have to an action 14 E. 2. Bast 26. So if the bastard dye seised and his issue endoweth the wife of the bastard yet is not the entry of the mulier lawful upon the Tenant in Dower for his right was barred by the discent Sir Ri. Ledfords case lib. 8. 101 102. Ass Mortdanc lieth not between the bastard and the mulier in respect of the proximity of blood and the bastard being impleaded or vouched shall have his age 21 E. 3. 34. b. 30 Ass p. 7. 11 E. 3. Age 3. 5 H. 7. 2. Sect. 400. At a Parliament holden 20 H. 3. for that to certifie upon the Kings Writ that the son born before mariage is a Bastard was Contra Com. formaÌ„ Ecclesiae Rogaverunt omnes episcopi magnates ut consentirent quod nati ante Matrimonium essent legitimi sicut illi qui nati sunt post matrimonium quantum ad successionem haereditariam quia Ecclesia tales habet pro legitimis Et omnes Comites Barones una vocâ— respondent Quod noiunt leges Angl-mutare quae huc usque usitatae sunt approbatae Stat. de Merton cap. 9. Bract. l. 5. fo 410. 417. â—0 Ass pl. 10. Note that the law more respecteth him that hath a colourable title though it be not perfect in Law than him that hath no title at all Vide S. 39. Sect. 401. Est diversity lou Bastard continue la possession touâ— sa vie sans interruption lou le mulier enter interruption le possession de tiel Bastard Reg. none shall enter but the mulier or some other by his commandment M. 38. 39. El. Com. Banco Vide 31 H 8 ent cong Br. 23. Omnis ratibabitio retrotrahitur mandato aequiparatur 4 H 7. ca. Vide Sect. 334. But in the case of the Bastardeigne Gardein en Socage or gardein in Chivalry may enter for they are no strangers If an Infant make a Feoffment in fee an estranger of his own head cannot enter to the
to avoid a collateâ—al Warranty or the lessor in that case may recover in an Assize and so as some have holden may the lessor enter in case of a lease for life to this intent to avoid a disâ—ent or a Warranty Dyer 19 El. Pl. Com. 374. 15 H 7 3 4. Iacobius Case 28. H 6 28. S 442. 45 E 3 21. If the disseisee make continual Claim and the disseisor dye seised within the year his heir within age and by Office the King is entitled to the Wardship albeit the entry of the disseisee be not lawful yet may he make continual Claim to avoid a discent and so in the like 7 H 6. 40. Con. Claim 1 Dounclers Case 5 E 4 4. No continual Claim can avoid a discent unless it be made by him that hath Title to enter and in whose life the dying seised was 22 H 6 37. 9 H. 4. 5. a. 15. E 4 22. a. Sect. 415. fol. 251. a. A continual Claim may be made as well where the lands are in the hands of a feoffee c. by Title as in the bands of a Disseisor Abater or Intruder by wrong Sect. 416. Note that a Forfeiture may be made by the alienation of a particular Tenant either in paiis or by matter of Record 1. In paiis of lands and tenements which lie in Livery where a greater estate is by liverâ— then the particular Tenant may lawfully make wherâ—by the reversion or remainder is divested vide S 581 609 610. 611 17 El. Dyer 339. 16. El. Dyer â—2â— A particular estate of any thing that lies in grant cannot be forfeited by any grant in fee by Deed for that nothing passes thereby but that which lawfully may pass 3â— E 3. Devise 21 15 E 4 9. vide S 608. But if Tenant for life or years of land the reversion or remainder being in the King make a feoffment in fee this is a forfeiture and yet no reversion or remainder is diâ—ested out of the King and the reason is in respect of the solemnity of the feoffment by livery tending to the Kings disherison 35 H 6 62. Tr. 32 El. in Informat ' de intrusion vers Rebinson Exchequers 2. By matter of Record and that by three manner of wayes 1. By Alienation 2. By Claiming a greater estate then he ought 3. By affirming the reversion or remainder to be in a stranger 1. By Alienation and that either divesting as by levying of a Fine or suffering a Common Recovery of Lands whereby the reversion or remainder is divested or not divesting as by levying of a fine in fee of an Advowson Rent Common or any other thing that lyeth in the grant And of this Opinion is Littleton in our Books and so note two diversities 1. Between a grant by Fine which is of Record and a grant by Deed in paiis and yet in this they both agree That the reversion or remainder in neither case is divested 2. Between a matter of Record as a Fine c. and a Deed recorded or a Deed inrolled for that worketh no forfeiture because the Deed is the Original 15 E. 4. 9. 2. By Claim and that may be in two sorts either Express as if Tenant for life will in Court of Record claim fee or if lessee for years be ousted and he will bring an Assize ut de libero tenemente or Implyed as if in a Writ of Right brought against him he will take upon him to joyn the Misce upon the meer Right which none but Tenant in fee simple ought to do So if lessee for years do loose in a Praecipe and will bring a Writ of Error for Error in Process this is a Forfeiture 15 E. 4. 29. 36. H. 6. 29. 2 H. 6. 9. 4. El. Dyer 9. H. 5. 14. 22 Ass 31. 18 E. 3. 28. 16. Ass 16. 3. By affirming the reversion or remainder to be in a stranger and that either actively or passively Actively by five manner of ways as 1. Tenant for life pray in aid of a stranger whereby he affirms the reversion to be in him 2. If he Attorn to the grant of a stranger and there note also a diversity between an Attornment of Record to a stranger and an Attornment in paiis for an Attornment in paiis worketh no Forfeiture 3. If a stranger bring a Writ of entry in casu proviso and suppose the reversion to be in him if the Tenant for life confess the action this is a forfeiture 4 If Tenant for life plead covinously to the disherison of him in the reversion this is a forfeiture 5. If a stranger bring an action of Waste against lessee for life and he plead Nul waste fait this is a forfeiture or the like 21 E. 3. â—4 a. 5 E. 4. 2. 24 H. 8. Forf br 87. lib. 2. fo 55 56. Bucklers Case 24. E. 3. 68. 1 H. 7. 15 Ass 3. Passively as if Tenant for life accept a Fine of a stranger Sur conusans de droit come ceo c. for hereby he affirmeth of Record the reversion to be in a stranger 3 M. Dyer 148. Note that the Right of a particular estate may be forfeited also and that he that hath but a Right of remainder or reversion shall take benefit of the forfeiture as if Tenant forlife be disseised and he levy a Fine to the disseisor c. fo 152. a. 13 E. 4 4. If Tenant for life make ale sâ— for life or a gift in Tail or a Feoffment in fee upon Condition and enter for the Condition broken yet the Forfeiture remaineth So it is of Tenant in Taâ—l apres possi ilitâ— c. tenant per le Curtesie c. Tenant for years Tenaâ—â—â—y staâ—ute Merchant c 39 Ass 15. 43 E. 3 Enter coâ—g 3 â—2 H 5. 7 39 E. 3. 16. 45 E 3. 25. If Tenaâ—â—â—or life in remaâ—â—der make continuall Claim and the Aliene â—f the first Tenant for life dye seised then may he in the remainder for life enter and the right of entry which he gained by his entry shall go to him in the remainder in fee in respect of the privity of the estate And so it is of him in the reversion in fee in like case for he is also privy in estate If Tenant iâ— Tail the remainder in fee with garr have Iudgement to recover in value and dye before execution without issue he in remainder shall sue Execution for hee hath right thereunto and is privie in estate So if a Seigniory be graâ—teâ—â—o one by Fine the grantee for life dyeth he in remainder shall have a per que servit for he hath right to the remainder and is privy in estate Sect 417 It is not sufficient to tell one generally what he should do but to direct him how and in what manner he shall do it Note that the entry of a man to recontinue his Inheritance or Freehold must ensue his action for recovery of the same Mich. 14 â—5 El. Rot. 1458. in the Earl of Arundels
wife notwithstanding the alienation of her husband Dyer 4 5. P. M. 146. 3 El. Dyer 191. l. 8. f. 71 72. Greveleys Case If the husband levy a Fine with Proclamations and dye the wife must enter or avoid the estate of the Conusee within five years or else she is barred for ever by the Statute of 4 H 7. for the Statute of 32 H 8. doth help the Discontinuancy but not the barre and the Statute speaketh of a Fine and not of a Fine with Proclamations 6 E 6. Dyer 72. b. 4 H 7. c. 24. Feme Tenant in Tail taketh husband the husband maketh a feoffment in fee the wife before entry dyeth without issue he in the reversion or remainder may enter For 1. The reversion or remainder cannot be discontinued in this case because the estate Tail is not discontinued 2. The words of the Statute be Shall not be prejudiciall c. to the wife or her heirs or such as shall have Right Title or Interrest by the death of such wife but the same wife and her heirs c. shall or lawfully may enter c. By which words the entry of him in the reversion or remainder in that case is preserved The husband is Tenant in Tail the remainder to the wife in Tail the husband make a feoffment in fee by this the husband by the Common Law did only discontinue his own Estate taile but his wifes remainder but at this day after the death of the husband without issue the wife may enter by the said action of 32 H. 8. If the husband hath issue and maketh a feoffment of his wifes land and the wife dyeth the heire of the wife shall not enter during the husbands life neither by the Common law nor by the Statute 8 E. 2 tit cui in vita 26 34. E. 1. ibid. 30. 10 E. 3. 12. Dy. 21. Eliz. 363. Sect. 565. Fo. 326. b. By the Statute of 11 H. 7. ca. 20. If the woman hath any Estate in tail joyntly with her husband or only to her self or to her use in any lands or haereditaments of the inheritance or purchase of her husband or given to the husband and wife in taile by any of the Ancestors of the husband or by any other person seised to the use of the husband or his Ancestors and shall hereafter being sole or with any other after taken husband discontinue c. the same every such discontinuance shall be void and that it shall be lawfull for every person to whom the interest title or inheritance after the decease of the said woman should appertaine to enter c. So as if such a feme Tenant in taile do make any discontinuance in fee in taile or for life although it be with warranty yet this doth not take away the entry after her death either of the issue or of him in reversion or remainder Vide Sect. 697. l. 3. fo 50 51. Sir George Brownes case and l. 3. f. 60 c. Lin. Coll. case P. 1. f. 176. Mildmayes case Dy. 3. 4. P.M. 146. 8 El. Dy. 448 15 El. 340. 19 El. 354. 20 El. 362. 27 H. 8. 23. l. 5. f. 79. Fitz. case and Grevelys case l. 8. fo 71 c. If Lands were intailed to a man and his wife and to the heirs of their two bodies and the husband had made a feoffment in fee and dyed and then the wife dyed this had been a discontinuance at the Common Law for the title of the issue is as heir of both their bodies and not as heir to any one of them and his entry must ensue his title or action But this is remedied by the Statute of 32 H. 8. Tenant in taile shall have a quod permittat 4 E. 3. 38. 43 E. 3. 25. 4 E. 4. 25. F. N.B. 124. And he shall have a writ of Customes and services le debet solet but shall not have it in the debt only 2 E. 2. droit 28. So he shall have a Secta ad molendum in le debet solet but not in the debet tantum F.N.B. 123. Tenant in taile shall have a writ of entry in consimili casu an Admesurement a nativo habendo cessavit escheat waste c. 21 E. 3. 11. 5 E. 3. 23. 11 H. 4. 49. But tenant in taile shall not have a writ of right sur disclaimer nor a quo jure nor a ne injuste vexes nor a nuper obiit or Rationabile parte nor a Mordanc nor a sur cui in vita for these and the like none but Tenant in fee shall have and the highest writ that a Tenant in taile can have is a Formedon 2 E. 3. droit 28. 13 H. 7. 24. 5 E. 4. 2. 20 E. 3. Avowry 13â— F.N.B. 10. 46 E. 3. cui in vita 33. Sect. 596 597. Fo. 327. b. It is provided by the Statues of W. 2. c. 1 De donis cond quod non habeant illi quibus tenementum sic fuerit datum potestatem alienandi c. So as these words non habent potestatem alien do work these effects viz. as to lands that a feoffment barreth not the issue of his action but worketh a discontinuance to barre him of his entry as to rents or any thing in esse that lye in grant that the said words do his power â—o make any discontinuance as to rents c. newly created that they take away his power to make them to continue longer than during his life 18 E. 3. 12. 24 E. 3. 28. 36 Ass 8. 5 E. 4. 3. 4 H. 7. 17. Pl. Com. Smith and Stapletons case But there is a diversity between alienation working a discontinuance of an estate which taketh away an entry and an alienation working divesting or displacing of estates which take away no entry As if there be Tenant for life the remainder to A. in taile the remainder to B. in fee if Tenant for life doth alien in fee this doth divest and displace the remainders but worketh no discontinuance and so note that to every discontinuance there is necessary a divesting or displacing the estate and turning the same to a right for if it be not turned to a right they that have the Estate cannot be driven to an action therefore such inheritances as lye in grant cannot by grant be discontinued because such a grant divests no Estate but passeth only that which he may lawfully grant and so the Estate it self doth descend revert or remaine as shall be said hereafter A. maketh a gift in tail to B. who maketh a gift in tail to C. C. maketh a feoffment in fee and dyeth without issue B. hath issue and dyeth the issue of B. shall enter for albeit the feoffment of C. did discontinue in reversion of the fee simple which B had gained upon the estate tail made to C. yet it could not discontinue the right of entaile which B. had which was discontinued before and therefore when C. died without issue
then did the discontinuance of the Estate taile of B. which passed by his livery cease and consequently the entry of the issue of B. lawfull * Also nate that a discontinuance made by the husband did take away the entry only of the wife and her heirs by the common Law and not of any other which claimed by title paramount above the discontinuance As if lands had beene given the husband and wife and to a third person and to their heires and the husband had made a feoffment in fee this had been a discontinuance of the one moity and a disseisin of the other moity if the husband had dyed the survivor should have entred in the whole for he claimed not under the discontinuance but by title paramount from the first feoffor and seeing the right by law doth survive the Law doth give him a remedy to take advantage thereof by entry for other remedy for that moity he could not have Sect. 600. Fo. 328 a. It is a Rule in Law that the disseisee or any other that hath a right onely by his release or confirmation cannot make any discontinuance because nothing can passe thereby but that which may lawfully passe 9 E. 4. 18. 12 E. 4. 11. 5 H. 4. 8. 21 H. 6. 58. By a feoffment the freehold doth passe by open livery to the feoffee and by a Release a bare right Sic nota diversit Sect. 601 602 603. fo 328. b. 329. a. A warranty being added to a release or confirmation and descending upon him that right hath to the lands maketh a discontinuance otherwise it is out of the reason of the Law and worketh no discontinuance if the warranty discend upon another If Tenant in taile release to his disseisor and bind him and his heires to warranty this is a discontinuance For if the issue in taile should enter in this case the warranty which is so much favoured in Law should be destroyed and therefore to the end that if Assets in fee simple do descend he to whom the release is made may plead the same and barre the demandant by which meanes all rights and advantages are saved Sect. 604. When a Bishop c. make an Estate Lease grant or rent-charge warranty or any other act which may tend to the diminution of the revenues of the Bishoprick c. which should maintaine the successor there the privation or translation of the Bishop c. is all one with his death But Where the Bishop is patron and ordinary and confirmeth a Lease made by the parson without the Deane and Chapter and after the Parson dyeth and the Bishop collateth another and then is translated yet his confirmation remaineth good for the revenues that are to maintaine the successor are not thereby diminished and so it is in case of resignation 29 E. 3. 16. ibid. garr 99. cl contr Vide Sect. 608 609 610 611 612 613 Fo. 330 331. a. Tiels choses queux passunt en asc ' cases de tenant en le taile tantsolement per voy de grant ou per confirmation ou per releaserien poit passe pur faire estate a celuy a que tiel grant ou confirmation ou release est fait forsque ceo que le tenant en taile poit droitulerment faire ceo ne forsque pur terme de la vie c. Hereby it appeareth that a feoffment in fee albeit it be by parol is of greater operation and estimation in Law then a grant of a reversion by Deed though it be inrolled and Attornment of the lessee for yeares of a release or a confirmation by Deed. Also having regatd to the issue in taile and to them in reversion or remainder Tenant in taile cannot lawfully make a greater Estate than for terme of his life But in regard of himselfe a release or grant made by him leaveth no reversion in him but put the same in Abeiance so as after such release or grant made he shall not have any action of wast and he shall not enter for a forfeiture c. 13 H. 10. a. Br. Release 95. Sect. 614. Fo. 331. b. The Feoffee of Tenant in taile hath no rightfull Estate having respect to two persons the one is the donor whose reversion is divested and displaced and the other is to the issue in taile who is driven to his action to recover his right Deforciare signifieth to withold Lands or Tenements from the right owner in which case either the entry of the right owner is taken away or the deforceor holdeth it so fast as the right owner is driven to his reall praecipe wherein it is said unde A. eum juste deforceat or the deforceor so disturbeth the right owner as he cannot injoy his owne Brac. l. 4. fo 238. Fleta l. 5. ca. 11. There is a writ called a Quod ei deform and lyeth where Tenant in taile or tenant for life loseth by default by the Staute he shall have a Quod ei deforc against the recoveror and yet he cometh in by course of Law Westm 2. ca. 4. Sect. 615 616 617 618. Fo. 332. a.b. An Advowson is a thing that lyeth in grant and passeth not by livery of seisin 5 E. 3. 58. 21 E. 3 37 38. 43 E. 3. 1. b. 11 H. 6. 4. 5 H. 7. 37. 18 H. 8. 16. El. Dy. 323. b. If a remainder or a rent service or a rent charge or an Advowson or a common or any other inheritance that lyeth in grant be granted by Tenant in taile it is no discontinuance Brac. l. 2. f. 3. f. 266. 318. Brit. fo 187. Mir. ca. 2. S. 17. Fle. l. 3. c. 15. For that it is a maxim in Law That a grant by Deed of such things as do ly in grant and not in livery of seisin do worke no discontinuance But the particulars reason is for that of such things the grant or Tenant in taile worketh no wrong either to the issue in taile or to him in reversion or remaindet for nothing doth passe but onely during the life of Tenant in taile which is lawfull and every discontinuance worketh a wrong 6 E. 3. 56. 4 H. 7. 17. 21 H. 7. 42. 21 H 6. 52. 53. 5 E 4. 3. 21 E. 4. 5. â—2 R. 2. discontinuance 35. Br. 19 E. 3. Br. 468. Pl. Com 435. 18 Ass p. 2. If Tenant in taile of a rent service c. or of a reversion or remainder in taile c. grant the same in fee with warranty and leaveth assets in fee simple and dyeth this is neither bar nor discontinuance to the issue in taile but he may distreine for the rent or service or enter into the Land after the decease of Tenant for life But if the issue bringeth a Formedon in the discending and admitting himself out of possession then he shall be barred by the warranty and Assets 33. E. 3. from 47. 13 H. 7. 10. 36. Ass 8. 4 H. 7. 17. Tenant in taile of a rent disseises the Tenant of the
Land and makes a feoffment in fee with warranty and dyeth this is no disccontinuance of the rent 3 H. 7. 12. 9 E. 4. 22. And where the thing doth ly in livere as Lands and Tenements yet if to the conveyance of the freehold or inheritance no livery of seisin is requisite it worketh no discontinuance As if Tenant in Taile exchange Lands c. or if the King being Tenant in Taile grant by his Letters Patents the Lands in fee there is no discontinuance wrought 38 H. 8. Pat. Br. 10. 1. Pl Com 233. l. 1. f. 26. Altwoods case Of a thing that lyeth in grant though it be granted by Fine yet it is no discontinuance and this is Regularly true 48 E. 3. 23. If Tenant in taile make a Lease for years of Lands and after levy a Fine this is a discontinuance for a Fine is Feoffment of Record and the freehold passeth 15 E. 4. discontinuance 30. But if Tenant in taile make a Lease for his owne life and after levy a Fine this is no discontinuance because the reversion expectant upon a Statute of freehold which lyeth only in grant passeth thereby 6 H. 8. 56 57. Sect. 620. Si Tenant in tail fait Lease a Terme de vie le lesee c. apres tenant in taile grant per son fait le reverson in fee a un auter le tenant a terme de vie attornment mor. vivant le Tenant in taile le grantee del reversion enter c. en la vie le Tenant in taile donque ceo est un discontinuance en fee. For when the revetsion in this case executed in the life of Tenant in taile it is equivalent in judgement of Law to a Feoffment in Fee for the state for life passed by livery 32 E. 3. discontinuance 2. 3 H. 4. 9. 34. Ass 6. p. 4. 38. Ass 6. p. 6. But if the Tenant in taile make a Lease for Terme of the life of the Lessee c. and grant over the reversion and dyeth and after the death of Tenant in taile the Lessee dye the entry of the issue is lawfull because by the death of the Lessee the discontinuance is determined and consequently the grant made of the reversion gained upon that discontinuance is void also If Tenant in taile make a Lease for life the remainder in fee this is an absolute discontinuance albeit the remainder be not executed in the life of Tenant in taile because all is one estate and passeth by livery and so note a diversity between a grant of a reversion and a limitation of a remainder 21 H. 6. 52 53. B. Tenant in Tail makes a gift in Tail to A. and after B. releases to A. and his heirs and after A. dyeth without issue the issue of the first Donee may enter upon the collateral heir because A. had not seisin and execucion upon the reversion of the land in the demesn as of fee. But if Tenant in Tail make a lease for the life of the lessee and after release to him and his heirs this is an absolute discontinuance because the fee simple is executed in the life of Tenant in Tail If Tenant in Tail of a Manor whereunto an Advowson is appendant make a feoffment in fee by Deed of one acre with the Advowson and the Church becommeth void and the feoffee present Tenant in Tayl dyeth the Church becometh void the issue shall not present untill he hath reconcontinued the acre But if the feoffee had not executed the same by Presentment then the issue in Tail should have presented And so was it at the Common Law of the husband seised in the right of his wife Mutatis mutandis 34 E. 1. Qu. imp 179. 22 E. 3. 6. 17 E. 3. 3. 33 E. 3. qu. imp 196. 23 Ass 8. If the husband and wife make a lease for life by Deed of the wives land reserving a rent the husband dyeth this was a Discontinuance at the Common Law for life and yet the reversion was not discontinued but remained in the wife otherwise it is as if the husband had made the lease alone 38 E. 3. 32. 18. Ass 2. 18 E. 3. 54. 22 H. 6. 24. If Tenant in Tail make a lease for life of the lessee and after grant the reversion with Warranty and dyeth before execution this is no discontinuance because the discontinuance was but for life and the Warranty cannot enlarge the same Bro. Discontinuance 3. 21 H. 7. 11. l. 1. fo 85. l. 10. fo 96 97. If Tenant in Tail make a Lease for life and grant the reversion in fee and the lessee attorn and that grantee grant it over and the lessee attorn and then the lessee for life dyeth so as the reversion is executed in the life of Tenant in Tail yet this is no Discontinuance because he is not in of the grant of the Tenant in Tail but of his grantee 15 E. 4. Discont 30. Vide Sect. 642. fol. 333 b. If Tenant in Tail make a lease for life and after disseiseth the lessee for life and maketh a feoffment in fee the lessee dyeth and then Tenant in Tail dyeth albeit the fee be executed yet for that the fee was not executed by lawful means it is no Discontinuance Sect. 625. Fol. 335. a. Littleton here putteth his case of a reversion immediately expectant upon the gift in Tail Also it is to be intended of a feoffment made to the donor solely or only for if the donee infeoff the donor and a stranger this is a Discontinuance of the whole land 41 Ass 2. 41 E. 3. 2. 28 H 8. Dyer 12. lib. 1. fo 140. in Chudleys case 9 E. 4. 24. b. But if Tenant for life make a lease for his own life to the lessor the remainder to the lessor and estranger in fee in this case forasmuch as the limitation of the fee should work the wrong it enureth to the lessor as a surrender for the one moity and a forfeiture as to the remainder of the stranger Nul poit discont ' lestate en taile si non que il discont ' le reversion c. ou le remainder c. 40 Ass 36. 61 Ass 36. 18 E. 3. 45. F N B. 142 a. Pl. Com. 555. And therefore if the reversion or remainder be in the King the Tenant in Tail cannot discontinue the estate Tail But Tenant in Tail the reversion in the King might have barred the estate Tail by a Common recovery untill the Stature of 33 H. 18. cap. 20. which restraineth such a Tenant in Tail but that Common Recovery never barred nor discontinued the Kings reversion 33 H 8. Tail Br. 41. If a feme covert be Tenant for life and the husband make a Feoffment in fee and the lessor enter for the forfeiture here is the reversion revested and yet the Discontinuance remained at the Common Law 27 Ass p. 60. 29 Ass 43. 11 Ass 11. 16. Ass 11 18 E. 3. 45. Sect. 632. Fol. 336. b. Si
43. 43 E. 3. 5. Sect. 671. Note a diversity between a Remitter and a Discent For if a woman be disseised and being of full age taketh husband and then the disseisor dyeth seised this discent shall binde the wife albeit she was covert when the discent was cast because she was of full age when she took husband But albeit the wife that hath an ancient Right and being of full age taketh a husband and the Discontinue letteth the land to the husband and wife for their lives this is a Remitter to the wife for Remitters to ancient Rights are favoured in Law Sect. 672. Fo. 354. a Here it appeareth That the husband against his own alienation if he had taken the estate to him alone could not have been remitted But when the estate is made to the husband and wife albeit they be but one person in Law and no moities between them yet for that the wife cannot be remitted in this case unlesse the husband be remitted also and for that Remitters are favored c. therefore in this case in Judgement of Law both husband and wife are remitted which is worthy of great Observation Sect. 673. Fol. 354. b. Littleton having spoken of Remitters to the issue in Tail who is privy in blood and to the wife who is privy in person now he speaketh of Remitters to them in reversion or remainder expectant upon an estate Tail who are privy in estate and this case proveth That the wife is remitted presently for the equity of the Law requireth that as the discontinuance continuance of the estate in Tail is a discontinuance of the reversion or remainder so that the Remitter to the estate Tail should be a Remitter in the reversion or remainder 42 E. 3. 17 41 Ass 1. 36 Ass p. 4. Tenant for life the remainder to A. in Tail the remainder to B. in fee Tenant for life is disseised a collateral Ancestor of A. releaseth with Warranty and dieth whereby the estate Tail is barred the Tenant for life re-enters the disseisor hath an estate in fee simple determinable upon the estate Tail and the remainder of B. is revested in him And so note in this case the estate for life and the remainder in fee are revested and remitted and an estate of inheritance left in the disseisor 44 Ass p. 15. 44. E. 3. 30. If a Fine be levied sur grant rend to one for life or in taile the remainder in Fee if Tenant for life or in taile execute the estate for life or in taile this is an execution of the Remainder 20. E. 3. Aid 29. A gift in tail is made to B. the remainder to C. in Fee B. discontinueth and taketh back an estate in tail the remainder in Fee to the King by Deed inrolled Tenant in taile dyeth his issue is remitted and consequently the remainder as Littleton here saith and the diversity is between an Act in Law for that may devest an estate out of the King and a tortious Act or entry or a false and a fained recovery against Tenant for life or in taile which shall never devest any Estate remainder or reversion out of the King Pl. Com. 489. Nichols case and 553. Walsinghams case 17. El. Dy. 344. 25. E. 3. 48. Resceit 18. 49 E. 3. 16. Surre Staffords case l. 8. fo 76 b. But a Recovery by good Title against Tenant for life or in taile where the remainder is to the King by defeasable Title shall devest the remainder out of the King and restore and remit the right owners Cholmleyes case l. 2. 53. 7 R. 2. Aid le roy 61. 22. E. 3. 7. Sect. 674. 675 Fo. 355. Quod ei deforceat is a writ that is given by the statute of W. 2. ca. 4. to any Tenant for life or in Taile upon a Recovery by default against them in a Precipe and lyeth against the Recoveror and his heirs in which case the particular Tenant was without remedy at the common Law because he could not have a writ of right There hath been a question in our Books upon these words by default c. And some do hold contrary to three Objections made c. and as to the first they say That albeit that in the writ of waste judgement is not only given upon the default yet the default is the principal and the cause of awarding of the writ to enquire of the waste is an incident thereunto and the Law alwayes hath respect to the first and principal cause and therefore upon such a Recovery a writ of deceit lieth and that writ lyeth not but where the recovery is by default 17 E 3. 58. 29 E 3. 42. F. N. B. 98. b. 12 H. 4. 4. 19 E. 2 disceit 56. w. 2 ca. 3. 3 H. 4. 1. So in an acton of waste against the Husband and wife upon the default of the Husband the wife shall be teceived and yet the Statute there speaketh also per defaultam So upon such a recovery in waste against the Baron and feme by default the wife shall have a cui in vita by the Statute and it speaketh where the recovery is per defaul 9 E. 4. 16. and albeit the defendent may give in evidence if he knoweth it yet when he makes default the Law presumeth he knoweth not of it and it may be that he in truth knew not of it and therefore it is reason that seeing the statute that is a beneficial Statute hath given it him that he be admitted to his quod ei deforceat in which writ the truth and right shall be tried and so it is of a Recovery by default in an Ass albeit the Recognitor of the Ass give a verdict a Quod ei deforceat lyeth and all this was resolved by the whole Court of Common Pleas and so the doubt in 41 E 3. 8. well resolved 2 H. 4. 2. 21 H. 6. 56. 44 E. 3. 42. Br. quod ei deforceat 4 P. 33 Eliz Rot. 1125. inter Ed Elmer and William Thacker in quod ei deforceat Nota If Tenant for life make default after defaltation and he in Reversion is received and pleading to issue and it found by verdict for the demandant the default and the verdict are causes of the judgement and yet the Tenant shall have a quod ei deforceat As to the 2. Ob. That the defendant may have an attaint 1. It was utterly denyed that an Attaint did lie in this case for though it be taken by the oath of 12 men yet it is but an Enquest of Office where upon no Attaint did lye on either party us upon an enquiry of Collusion although it be by one Jury nor upon a verdict in a quale jus 2. Admitting that an Attaint did lye in that case yet it followeth ex conseq that a quod ei deforceat did not lye 33 E 3. quod ei deforceat pl. ult F.N.B. 156. Fleta l 5 ca. 11. 48. E. 3. 19. 40. Ass 23. 33 H. 6. 25. 39 H.
5 E. 3. enter cong 42. 15 E. 3. Age 95. 41 E. 3. 18. pe Finchden 22 E. 3. 2 b lib. 1. 15. Sir William Pelhams case Since our Author wrote the statute of 14. El. cap. 8. hath been made concerning this matter Vide l. 3. 60. Lib. 1. fo 15. And Nota That although the discontinuâ—â— groweth by matter of Record yet the Remitter may be brought by matter in paiis Sect. 676. Autor al. Contr. 44 E. 3. 17. 44 Ass 2. 43 Ass 3. Vide Sest 6â—6 Sect. 677. Fo 356. b. In this case the estate is in the feme covert presently by the livery before any agreement by the husband 15. 4. 1. b. 7 H. 6. 17. 1 H. 7. 12. b. 39 E. 3. 30. 57 H. 8. 24. If the wife survive her husband she cannot claim in by the purchase made during the coverture but the law adjudgeth her in her better right 41 E. 3. 18. But if both estates be waivable there albeit the wife prima facie is remitted yet after the decease of her husband she may elect which of the Estates she will As if lands be given to the husband and wife and their heirs the husband make a feoffment in Fee * the Feoffee giveth the husband and wife and the heirs of their two bodies the husband dieth 18 El. Dy. 351. * the Feoffee giveth land to the husband and wife c. If Lands be given to a man and the heirs females of his body and he maketh a feoffment in fee and take back an estate to him and his heirs and dyeth having issue a daughter leaving his wife grossement enseint with a Son and dieth the daughter is remitted and albeit the son be afterward borne he shall not devest the Remitter Sect. 678. Fol. 357. Covin and consent in many cases to do a wrong do choak a meer right and the ill manner doth make a good matter unlawfull 18 E. 4. 2. b. Covina is a secret assent determined in the hearts of two or more to the defrauding and prejudice of another Pl. Com. 546. Wimb If a Disseisor Intrudor or Abator do endow a woman that hath lawful Title of Dower this is good and shall binde him that right hath if there were no covin or consent before the disseisin c. 44 E. 3. 46. 11 H. 4. 60. 44 Aff. 29. 19 H. 8. 12. 18 H. 8. 5. 11 E. 4. 2. 7 H. 7. 11. In all cases where a man hath a rightfull and just cause of action yet if he of covin and consent do raise up a Tenant by wrong against whom he may recover the covin doth suffocate the right so as the recovery though it be upon a good Title shall not binde or restore the Demandant to his right 41 Ass p. 28. 25 Ass p. 1. 27 Ass 74. 15 E. 4. 4. a. 12. Ass p. 10. If Tenant in Tail and his issue disseise the discontinuee to the use of the Father and the Father dieth and the land descend to the issue he is not remitted against the discontinuee in respect he was privy and party to the wrong but in respect of all others he is remitted and shall deraign the first Warranty 11 E. 4. 2. 15 E. 4. 23. 14 H. 8. 12. 33 H. 6. 5. 12 E. 4. 21. b. A. and B. joyntenants be intituled to a real action against the heir of the disseisor A. cause the heir to be disseised against whom A. and B. recover and sue execution B is remitted for that he was not party to the covin and shall hold in common with A. but A. is not remitted fo 357. b. Nota it is regularly true That a feme covert cannot be a disseisoress by her commandment or procurement precedent nor by her assent or agreement subsequent but by her actual entry or proper act she may be a disseisoress And therefore some do hold that Littleton must be intended that the husband and wife were present when the disseisin was done and others do hold that Littleton is good Law albeit she were absent for if that her procurement or agreement be to do a wrong to cause a Remitter unto her in this special case she shall fail of her end and remitted she shall not be but in this special case she shall be holden as a disseisoress by her covin and consent quatenus to hinder a Remitter F.N.B. 179. g. 12. E. 4. 9. 35 Ass 5. 44. E. 3. 9. 23. 13 Ass 1. Temps E. 1. Waste 128. 16. Ass p. 7. 21. E. 4. 53. 21. H 7. 35. 3. H. 4. 17. Sect. 679. Vide Pl. Com. Amy Townsends Case 12. R. 2. Remit 12. Sect. 680 681. fol. 358. Here note five things 1. That a remainder expectant upon an estate for life worketh no Remitter but when it falls in possession for before his time he can have no action and no Freehold in him 18. H. 8. 3. 2. Though the woman might wave the remainder yet because she is presently by the death of the husband Tenant to the praecipe it is within the rule of Remitter and her power of waiver is not material 3. That a Freehold in Law being cast upon the woman by act of Law without any thing done or assented to by her doth Remitter her albeit she be then sole and of full age vide S. 447. 4. That a Praecipe lieth against one that hath but a Freehold in Law 5. That a woman shall be endowed where the husband hath the inheritance and but a Freehold in Law Brit. 83. b. Sect. 682 683 684 685. Fo. 359. Vide 12. E. 4. Compare these four Sections well together A man absent can neither take Livery nor make Livery without Deed Temps H. 8. Feoffments Br. 72. 40 E. 3. 41 .10 E. 4. 1. a. 15 E. 4. 18. 18 E. 4. 12. 22 H. 6. 12. Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur Et le fits nient conusant de ceo ne agrea a le feoffment c. Here it appeareth That if the Son be Conusant and agreeth to the Feoffment c. This is no remitter to him Vide Sect. 682. If A. be seised in Tail and have issue two Sons and by Deed indented between him of the one part and the Sons of the other part maketh a lease to the eldest for life the remainder to the second in fee and dieth and the eldest Son dieth without issue the second Son is not remitted because he agreed to the remainder in the life of the Father or if the like estate had been made by paroll if in the life of the Father the Tenant for life had been impleaded and made default and he in the remainder had been received and thereby agreed to the remainder after the death of the Father and the eldest Son without issue the second Son should not be remitted because he agreed to the remainder in the life of the Father Sect. 685. Fol. 360. a. Acts of Parliament are to be so construed
shall recover by a Writ of Cosinage Aiel and Besail and lastly that the heire of the wife after the death of the Father and Mother shall not be barred of his action to demand the heritage of his Mother by Writ of Entry which his Father aliened in the time of his Mother whereof no Fine was levied in the Kings Court Fo. 365. b. Concerning the 1. There be two points in Law to be observed 1 Albeit the Statute in this Article name a Writ of Mordanc and after writs of Cosinage c. yet a writ of Right a Formedon a writ of Entry ad Com. legem and all other like actions are within the purview of this Statute * 2 Where it is said in the said Act if the Tenant by the Curtesie alien yet his release with warranty to a disseisor c. is within the purview of the Statute for that it is in equall mischief 11 E. 2. gar 83. 4 E. 3. gar 63. Pl. Cam. 110. * 27 E. 3. 80. 14 E. 4. gar 5. and 4. M. Dy. 148. a. If Tenant by the Curtesie be of a Seigniory and the Tenancy escheat unto him and after he alien with warranty this shall not binde the issue unlesse assets descend for it is in equal mischief 22. Ass 9. 37. temps i.e. gar 86. Note a diversity between a warranty on the part of the Mother and an estoppel for an estoppel c. shall not binde the heir when he claimeth from the Father As if Lands be given to the husband and wife and to the heires of the husband the husband make a gift in Tail and dieth the wife recover in a Cui in vita against the donee supposing that she had fee simple and make a feoffment and dieth the donee dyeth without issue the issue of the husband and wife bring a Formedon in the Reverter against the Feoffee and notwithstanding he was heir to the Estoppel and the Mother was Estopped yet for that he claimed the Land as heir to his father he was not Estopped 18 E 3. 9. If a feme heire of a disseisor infeoffe me with warranty and marrieth with the disseisee if after the disseisee bring a Praecipe against me I shall rebut him in respect of the warranty of his wife and yet he demandeth the Land in another right and so if the husband and wife demand the right of the wife a warranty of the Collateral Ancestor of the husband shall barre 21. R. 2. judgement 263. By the Statute of 11 〈◊〉 7. c. 20. where the woman hath any estate for life of the inheritance or purchase of her husband or given to her by any of the Ancestors of the husband or by any other person seised to the use of her husband or of any of his Ancestors there her alienation release or confirmation with warranty shall not binde the heir l. 1. f. 176. l. 3. 50 51. 59. 60. 61. 62. Dy. 146. 362 D. St. 55 Pl. Com. 56. I will only adde two cases the one was A man seised of Lands in fee levyed a fine to the use of himself for life and after to the use of his wife and of the heirs males of her body by him begotten for her joynture and had issue male and after he and his wife levied a fine and suffered a Common recovery the husband and wife die and the issue male enter by force of the said Statute of 11 H. 7. and it was holden by the justices of Ass that the entry c. was lawful and yet this case is out of the letter of the Statute for she neither levied the Fine c. Being sole or with any other after taken husband but is by her self with her husband that made the joynture Sed qui haeret in littera haeret in Cortice this case being in the same mischief is therefore within the remedy of the Statute by the intendment of the makers of the same to avoid the disherison of heirs who were provided by the said joynture and especially by the husband himself that made the joynture M. 13. Jac. inter Harley and West in eject fir in Com. B. Linc. The other was A man is seised of Lands in the right of his wife and they two levy a Fine and the Conusee grant and render the Land to the husband and wife in especial taile the remainder to the right heirs of the wife they have issue the husband dyeth the wife taketh another husband and they two levy a Fine in Fee and the issue enter this is directly within the Letter of the Statute and yet is out of the meaning because the State of the Land moved from the wife so as it was the purchase of the Husband in Letter and not in meaning P. 17. El. in Com. B Lattons Case But where the woman is Tenant for life by the gift or conveyance of any other her alienation with warranty shall binde the heir at this day So if a man be Tenant for life otherwise than as Tenant per Curtesie and alien in fee with warranty and dyeth this shall at this day binde the heir that hath the reversion or remainder by the Common Law not holpen by any Statute But all this is to be understood unlesse the heir that hath the reversion or remainder doth avoid the estate so aliened in the life of the Ancestor for then the estate being avoided the warranty being annexed unto the estate is avoided also Sect. 725. As to the second clause of the Statute of Glocestor there are two points of Law to be observed 1. That by the expresse purview of the Statute if Assets do after descend from the Father then the Tenant shall have recovery or restitution of the lands of the Mother But in a Formedon if at the time of the warranty pleaded no Assets be descended whereby the Demandant recovereth if after the Assets descend there the Tenant shall have a Sc. fac for the Assets and not for the land intailed because that if in this case the Tenant should be restored to the land intailed then if the issue in Tail alienated the Assets his issue should recover in a Formedon Pl. Com. 110. a. l. 8. f. 53. Sims Case 2. Note That after Assets descended the recovery shall be by writ of Judgement viz. by Sc. fac which shall issue out of the Roll of the Justices c. to resummon him that ought to warrant c. Also if the Tenant will have benefit of the Statute he must plead the Warranty and acknowledge the Title of the Demandant and pray that the advantage of the Statute may be saved unto him and then if after Assets descend the Tenant upon this Record shall have a sc fac and if Assets descend but for part he shall have a scire fac for so much l. 8. fo 134. Mary Shipleys Case But if the Tenant plead the Warranty and Assets descended c. and the Demandant taketh issue that Assets not c.
in this case of Littleton when one Coparcener entreth into the whole and maketh a Feoffment of the whole this devesteth the Freehold in Law out of the other Coparcener Item when the one sister enters into the whole the possession being void and maketh a feoffment in fee this act subsequent doth so explain the entry precedent into the whole that now by construction of Law she was onely seised of the whole and this feoffment can be no disseisin because the other sister was never seised nor any abatement because they both made but one heir to the Ancestor and one Freehold and inheritance descended to them so as in judgement of Law the Warranty doth not commence by disseisin or by abatement and without question her entry was no intrusion Pl. Com. 543. fo 374. a. Tenant in Tail hath issue two daughters and discontinue in fee the yongest disseiseth the discontinuee to the use of her self and her sister the discontinuee ousteth her against whom she recovereth in an Assize the eldest agreeth to the disseisin as she may against her sister and become joynt-tenant with her And thus is the book in the 21 Ass p. 19. to be intended the case being no other in effect But A. disseiseth one to the use of himself and B. B. agreeth by this he is joyntenant with A. Fol. 374. b. Nota in these two last Sections four several Conclusions 1. That a lineal Warranty doth binde the right of a fee simple 2. That a lineal warranty doth not binde the right of an estate Tail for that is restrained by the Statute of donis Cond 3. That a lineal Warranty and Assets is a bar of the right in Tail and is not restrained by the said Act. 4. That a collateral Warranty made by a collateral Ancestor of the donee doth binde the right of an estate Tail albeit there be no Assets and the reason thereof is upon the Statute of Donis Cond for that it is not made by the Tenant in tail c. as the lineal Warranty is 3 E. 3. 22. 4 E. 3. 28. 50. M. 38 E. 3. Cor. Rege Ab. de Colchest case 45 Ass 6. Pl. Com. 554. 19 E. 4. 10. Vide S 703 747. To this may be added That the Warranty of the Donee in Tail which is collateral to the Donor or to him in remainder being heir to him doth binde them without any Assets For though the alienation of the Donee after issue doth not bar the Donor which was the mischief provided for by the Act yet the Warranty being collateral doth bar both of them for the Act restraineth not that Warranty but it remaineth at the Common Law as Littleton after saith And in like manner the Warranty of the Donee doth barre him in remainder Note Assets requisite to make lineal Warranty a barre must have six qualities 1. It must be Assets i e. of equal value or more at the time of the discent 2. It must be of discent and not by purchase or gift 3. It must be Assets in fee simple and not in fee Tail or for another mans life 4. It must descend to him as heir to the same Ancestor that made the Warranty Brit. 185. 4. E. 3. garr 63. 16. E. 3. Ass 4. 43. E. 3. 9. 7. H. 6. 3. 11. H. 4. 20. 5. It must be of Lands or Tenements or Rents or Services valuable or other profits issuing out of Lands Tenements and not personall Inheritances as Annuities c. 6. It must be in state or interest and not in use or right of actions or right of entry for they are no Assets until they be brought into possession 24. E. 3. 47. But if a rent in fee simple issuing out of the Land of the heir descend unto him whereby it is extinct yet this is Assets and to this purpose hath in Judgement of Law a Continuance 31 E. 3. Ass 5. 13. E. 3. Recovery in value 17. l. 3. f. 31. Butler and Bakers Case A Seigniory in franck-Almoign is no Assets because it is not valuable and therefore not to be extended and so it seemeth of a Seigniory of Homage and Fealty 14. E. 3. Mesne 7. Regist 293. But an Advowson is Assets whereof Fleta l. 2. c. 65. saith Item de ecclesiis quae ad donationem Domini pertinent quot sunt quae ubi quantum valeat quaelibet Ecclesia per annum secundum veram ipsius aestimationem pro Marca solidus extendatur ut si ecclesia 100. Marcas valeat per annum ad 100. solidos extendatur advocatio per annum Brit. 185. 5. H. 7. 37. 32. H. 6. 21. 33. E. 3. garr 102. Sect. 714. Fol. 375. a. Nota that albeit in this case the issue in Tail must claim as heir of both their bodies yet the Warranty of either of them is lineal to the issue 35 E. 3. garr 73. If Lands be given to a man and a woman unmarried and the heirs of their two bodies and they intermarry and are disseised and the husband releaseth with Warranty the wife dieth the husband dyeth albeit the Donees did take by moities yet the Warranty is lineal for the whole because as our Author here saith the issue must in a Formedon convey to him the right as heir to the Father and his Mother of their two bodies ingendred and therefore it is collateral for no part Sect. 715 716 717. Nunquam nimis dicitur quod nunquam satis dicitur And here it appeareth That it is not adjudged in Law a collateral Warranty in respect of the bloud for the Warranty may be collateral albeit the bloud be lineal and the Warranty may be lineal albeit the bloud be collateral But it is in Law deemed a collateral Warranty in respect that he that maketh the Warranty is collateral to the Title of him upon whom the Warranty doth fall 8 R. 2. gar 101. vide Sect. 704. Sect. 718. Fo. 376. a. Every Warranty doth descend upon him that is heire to him that made the Warranty at the Common Law Vide Sect. 3. 603 735 736 737. Hereupon many things worthy to be known are to be understood 1. That if a man infeoff another of an acre of ground with Warranty and hath issue two Sons and dyeth seised of another acre of land of the nature of Borough English the feoffee is impleaded albeit the Warranty descendeth onely upon the eldest yet may he vouch them both the one as heir to the Warranty and the other as heir to the Land 40 E. 3. 14. So it is of heirs in Gavelkinde c. 22 E. 4. 10. And in like sort the heir at the Common Law and the heir of the part of the Mother shall be vouched 49 Ass 4. 38. E. 3. 22. But the heir at the Common Law may be vouched alone in both these cases at the election of the Tenant sic de similibus Also if a man dye seised of certain lands in fee having issue a Son and a daughter by one
venter and a Son by another the eldest Son enters and dieth the land descends to the sister in this case the warranty descendeth on the Son and he may be vouched as heir and the sister as heir of the land In which case and in the other case of Borough English the Son and heir by the Common Law having nothing by discent the whole loss of the recovery in value lieth upon the heires of the land albeit they be no heires to the warranty 32 E. 3. vouch 94. 35 H. 6. 3. Then put the case that there is a warranty paramount who shall deraign that warranty and to whom shall the recompence in value go some have said that as they are vouched together so shall they avouch over and that the recompence in value shall enure according to the losse and that the effect must pursue the cause as a recovery in value by a warranty of the part of the Mother shall go to the heire of the part of the Mother c. Pl. Come 515. Some others hold that it is against the maxime of the Law that they that are not heirs to the warranty should joyn in a voucher or to take benefit of the waranty which descends not to them but that the heir at the common Law to whom the warranty descended shall deraign the warranty and recove in value and that this doth stand with the rule of the common Law Others hold the contrary and that this should be both against the rule of Law and against reason also for by the rule of Law the vouchee shall never sue to have execution in value untill execution be sued against him But in this case excution can never be sued against the heir at the common Law therefore he cannot sue to have execution over in value Secondly it should be against reason that the heire at the common law should have totum lucrum and the especial heirs totum damnum 17 E. 2. Recover in value 33. 18 E. 3. 51. l. 1. 96. Shelleyes case I find in our Books this reason is yielded that the special heires should not be vouched only for say they then could not they deraigne the warranty which should be mischievous that they should lose the benefit of the warranty if they should be vouched onely 32 E. 3. vouch 94. per Greene. But if the heire at the Common Law were vouched with them as by the Law he ought all might be saved and therefore study well this point how it may be done If Tenant in general Tail be and a common recovery is had against him and his wife where his wife hath nothing and they vouch and have judgement to recover in value Tenant in Tail dyeth and the wife surviveth for that the issue in Tail had the whole losse the recompence shall enure wholly to him and the wife albeit she was party to the judgment shall have nothing in the recompence for that she loseth nothing Pl. Com. Fo. 514. If the Bastard eigne enter and take the profits he shall be vouched onely and not the Bastard and the Mulier because the Bastard is in apparance heire and shall not disable himself 17 E. 3. 59. 20 E. 3. vouch 129. 5 H. 7. 2. If a man be seised of Lands in Gavelkind and hath issue three Sonnes and by Obligation bind himself and his heires and dieth an action of debt shall be maintenable against all the three Sonnes for the heire is not chargeable unlesse he hath lands by discent 11 H. 7. 12. 11 E 3. Det. 7. Dy. 5. El. 238. So if a man be seised of Land on the part of his Mother and bind himself and his heirs by Obligation and dyeth an action of debt shall lye against the heire on the part of the Mother without naming the heire at the Common Law and so note a diversity between a personal lyen of a bond and a reall lyen of a warranty Sect. 719. Fol. 377. a. Here it appeareth that whensoever the Ancestor taketh any estate of freehold a limitation after in the same conveyance to any of his heires are words of limitation and not of purchase albeit in words it be limitted by way of remainder and therefore here the remainder to the heires females vesteth in the Tenant in tail himself 24 E. 3. 36 27 E. 3. Age 108. 38 E 3. 26. 40. E. 3. 5. 37 H. 8 Br. nosme 1. 40. tit done Rem 61. The issues inheritable must make their claim either only by Males or only by Females so as the Females of the Males or Males of the Females are wholly excluded c. 1 H. 6. 4. Pl. Com. 414. Vide Sect. 24. But where the first limitation is to the heires males let the limitation be for default of such issue to the heires of the body of the donee and then all the issues be they Females of Males or Males of Females are inheritable If a man give Lands to a man to have and to hold to him and the heires Males of his body and to him and to the Heires Females of his body the estate to the heires Females is in remainder and the daughter shall not inherit any part so long as there is issue Male. Sect. 720. Nihil simul inventum esi perfectum saepe viatorem nova non vetus orhita fallit and therefore new inventions in assurances are dangerous 22 H. 6. 33. l. 6. f. 42. b. Sir Anthony Mildmayes case Non prosunt dominis quae prosunt omnibus artes quoniam In suo quisque negotio hebetior est quam in alieno 2 H. 4. fo 11. Action sur le case Sect. 721. Fol. 378. a. Every remainder which commeth by deed ought to vest in him to whom it is limited when livery of seisin is made to him that hath the particular estate 1. Littleton saith by Deed because if Lands be granted and rendred by Fine for life the remainder in Taile the remainder in Fee none of these remainders are in them in the remainder until the particular estate be executed 7 R. 2. scire facias 2. That the remainder be in him c. at the time of the livery This is regularly true but yet it hath divers exceptions As where the remainder is to commence upon limitation of time viz. upon the possibility of the death of one man before another which is a common possibility Pl. Com. Colthirsts case fo 65. 29. 32 H. 6. tit feoffments c. 99. 27. E. 3. 87. 12 E. 4. 2. 21 H. 7. 11. 7 H. 4. 23. 11 H. 4. 74. 18 H. 8. 3. 27. H. 8. 42. 38 E. 3. 26. 30. Ass 47. 6 R. 2 qu Iur. Dam. 20. A man letteth lands for life upon condition to have Fee and warranted the land in forma predicta afterward the lessee performeth the conditions whereby the lessee hath fee the warranty shall extend and increase according to the State And so it is in that case if the lessor had dyed before the
the Warranty is a barre And so it is of a Feme covert if her entry be not lawfull a Warranty descending on her during the coverture doth bind her and albeit the husband be within age at the discent of the warranty yet if the entry of the wife be taken away the warranty shall bind the wife 8 Ed. 3. 3. 3 H. 7. 9. Br. tit War 54. 33 H. 8. War Br. 84. l. 1. f. 67. a. Aâ—chers Case and 140. Chudleys Case Note a diversity between matters of Record done or suffered by an Infant and matters in fait for matters in fait he shall avoid either within age or at full age but matters of Record as Statute Merchant Staple Recognizances knowledged by him or a Fine levied by him Recovery against him by default in a reall action saving in Dower must be avoided by him viz. Statute c. by Audita querela and the Fine and Recovery by Writ of Error during his minority and the like because they are judiciall acts and taken by a Court or a Judge therefore the nonage of the party to avoid the same shall be tryed by inspection of Judges and and not by the Countrey 20 Ed. 3. Audita querela 27. F.N.B. 104. k. 6 Ed. 3. 39. 17 Ass 53. 17. 21 E. 2. 4. 15 E. 4. 5. 8 Hen. 6. 30. 1 Hen. 7. 15. 6 Hen. 8. Saver default Br. 50. 3 Hen. 6. 10. 1 Mar. Dyer 104. And for that this nonage must be tryed by inspection this cannot be done after his full age But if the age be inspected by the Judges and Recorded that he is within age albeit he come of full age before the Reversall yet may it be reversed after his full age P. 13. Ja. R. in Banco Reg. fol. 380. b. No negligence shall be adjudged in an Infant where he is thereby to be barred of his entry in respect of a former right as by a discent or of his former right as Littleton doth here put an Example by a Warranty where his entry is congeable But otherwise it is of Condition Charges and Penalties going out of or depending upon the Originall Conveyance for the laches or negligence shall be adjudged in those cases as well in the Infant as in any other vide Pl. Com. 355 c. Stowels Case And see further there where an Infant being Tenant for life or years shall be punished for doing or suffering of waste and where he claimeth by purchase a Cessavit shall lie against him if he pay not his rent by two years And some have said if he have the Tenancy by discent and he himself cesse a Cessavit doth lie and he shall not have his age because it is of his own cesser 31 Ed. 3. Age 54. But other Books as some conceive them be against that vide 9 Edw. 3. 50. 28 Ed. 3. 99. 14 Ed. 3. Age 88. 2 Ed. 2. Age 132. and others which Books doe not prove that the Cessavit doth lie in that case but the contrary that he shall have his age to the end he may at his full age certainly know what to plead or what arrerages to tender for the land was originally charged with the Seigniory and Services Sect. 728. ** Note three things concerning the construction of Statutes 1. That it is the most naturall and genuine Exposition of a Statute to construe one part by another c. for that best expresseth the meaning of the makers Pl. Com. 75. 7 Ed. 3. 89. As here the question upon the generall words of the Statute is Whether a Fine levied only by a husband seised in the right of his wife with Warranty shall barre the heir without Assets And it is well expounded by the former part of the Act whereby it is Enacted That Alienation made by Tenant by the Curtesie with Warranty shall not barre the heir unlesse the Assets descend Bract. lib. 4. fol. 321. Fleta lib. 5. cap. 34. And therefore it should be inconvenient to intend the Statute in such manner as that he that hath nothing but in the right of his wife should by his Fine levied with Warranty barre the heir without Assets and this Exposition is ex visceribus actus 2. The words of an Act of Parliament must be taken in a lawfull sense as here the words being Whereof no Fine is levied in the Kings Court are to be understood whereof no Fine is lawfully or rightfully levied c. and therefore a Fine levied by the husband alone is not within the meaning of the Statute for that Fine should work a wrong to the wife but a Fine levied by the husband and wife is intended by the Statute for that Fine is lawfull and worketh no wrong Pl. Com. 246. Seignieur Barklays case l. 9. fol. 26. Abbot de Strata Marc. and generally the Rule is Quod non praestat impedimentum quod de jure non sortitur effectum Vide fol. 381. b. 11 H. 4. 80. 3. That constructions must be made of a Statute in suppression of the mischief and in advancement of the remedy as by this case it appeareth For a Fine levied by the husband onely is within the letter of the Law but the mischief was the heir was barred of the Inheritance of his Mother by the warranty of his Father without Assets and this Act intended to apply a remedy viz. That it should not barre unlesse there were Assets and therefore the mischief is to be suppressed and the remedy advanced Et qui haeret in littera haeret in Cortice Sect. 731. Fol. 383. a. Nullius hominis autoritas tantum apud nos valere debet ut meliora non sequeremur si quis attulerit 8 E. 2. gar 81. 18. E. 3. 51. 7 E. 3. 84. Pl. Com. 57. The Judge if he knoweth it ought not to take knowledge of a Fine that worketh a wrong to a third person 33 H. 6. 52. 5 E. 3. 56. 2 El. Dyer 178. 1 H. 8. 1. M. 89. 4 E. 3. 41. 7 El. Dyer 246. Sect. 733. Fo. 383. a. The feoffor may by expresse words warrant the land for the life of the feoffee or of the feoffor c. but the Recovery in value shall be in fee. 38 E. 3. 14. Et ego haeredes mei Warrantiâ— tali haered suis tantum vel tali haered assign haered assignatorum vel assig assignator eorum haered acquietabimus defendemus c. Bract. fo 37. 248. l. 5. 380 381. Brit. 106. Per hoc autem quod dicit acquietabimus obligat se haeredes suos ad acquietand si quis plus petierit servitii vel aliud servitium quà m in carta Donationis continetur Per hoc autem quod dicit Defendemus obligat se haeredes suos ad defend fi quis velit servitutem ponere rei datae contra sormam suae donationis If a man be bound to A. in an Obligation to defend such lands to A. whereof the Obligor hath infeoffed him for 12
years c. in this case if he be ousted by a stranger without being impleaded the Obligation is forfeit But if he be bound to warrant the land c. the bond is not forfeit unlesse the Obligee is impleaded and then the Obligor must be ready to warrant c. 2 E. 4. 15. tit Det. 71. Qui benè distinguit benè docet fol 384. a. A Warranty in Deed is created onely by this word Warrantizo but Warranties in Law are created by many other words they are therefore called Warranties in Law because in Judgement of Law they amount to a Warranty without this Verb Warrantizo As Dedi is a Warranty in Law to the feoffee and his heirs during the life of the feoffor but Concessi in a Feoffment or Fine implieth no Warranty But before the Statute of Quia Emp. ter if a man had given lands by this word Dedi to have and to hold to him and his heires of the Donor and his heirs by certain Services then not onely the Donor but his heirs also had been bound to warrant But if before the Statute a man had given lands by this word Dedi to a man and his heirs for ever to hold of the chief Lord there the feoffor had not been bound to Warranty but during his life as at this day he is Lestat de Bigamis c. 6. 2 H. 7. 7. 6 H. 7. 2. 48 E. 3. 2. 31 E. 1. vouch 290. F. N.B 134. b. 6 E. 2. vouch 258. Dedi doth import a warranty in Law albeit there be an expresse warranty in the Deed. For if a man make a feoffment by Dedi and in the Deed doth warrant the land against I. S. and his heirs yet Dedi is a generall warranty during the life of the feoffor and so was the Statute expounded in both points H. 14. El. in Com. Banc. And if a man make a lease for life reserving a rent and adde an expresse warranty here the expresse warranty doth not take away the warranty in Law for he hath election to vouch by force of either of them and in Nokes Case note a diversity between a warranty that is a Covenant and a warranty concerning a Chattell l. 4. fo 80. 8 E. 3. 69. 3 E. 3. Formedon 44. Also this word axcambium doth imply a warranty Also a Petition implyeth a warranty in Law and homage Aunc ' doth draw to it selfe warranty 4 E. 2. vouch 245. 22 E. 3. 3. 14 H. 6 2. 20 H. 6. 14. l. 4. 122. l. 1. 96. l. 5. fo 17. l. 8. 75. Seignior Staf. case And note that the warranty wrought by this word dedi is a speciall warranty and extends to the heirs of the Feoffee during the life of the donor only But upon the exchange Homage Aunc ' the warrant extending reciprocally to the heires and against the heires of both parties and in none of these cases the Assignee shall vouch by force of any of these warranties but in the case of the exchange and dedi the Assignee shall rebutt but not in the case of Homage Auncestrel And so no man shall have a writ of contra formam collationis but onely of the feoffee and his heirs which be privy to the Deed but an Assignee may rebutt by force of the Deed. 28 Ass 33. 14 H. 4. 5. 11 E. 3. Avowr 100. 30 H. 6. 7. 33 H. 8. Dy. 51. 10 H. 7. 11 b. F. N. B. 163. a. If a man make a gift in Taile or a Lease for life of land by deed or without deed reserving a rent or of a rent service by deed this is a warranty in Law and the donee or lessee being impleaded shall vouch and recover in value and this warranty extendeth not onely against the donor or lessor and his heires but also against his Assignees of the reversion and so likewise the Assignee of lessee for life shall take benefit of this warranty in Law 6 E. 2. vouch 105. 5 E. 3. 67. 3 H. 7. 13. 6 H. 7. 2. 7 E. 3. 6. F.N.B. 134. g. When dower is assigned there is a warranty in Law included that the Tenant in Dower being impleaded shall vouch and recover in value a third part of two parts whereof she is Dowable 4 E. 3. 36. 43. Ass 32. 50 E. 3. 7. F.N.B. 149. m. A warranty in Law and Assets is in some cases a good barre In a Formedon in the discender the Tenant may plead that the Ancestor of the demandant exchanged the Land with the Tenant for other Lands taken in exchange which descended to the demandant whereunto he hath entred and agreed or if he hath not entered and agreed unto the Lands taken in exchange then the Tenant may plead the warranty in Law and other Assets descended 14 H. 6. 2. 15 E. 3. Bar. 255. If Tenant in Taile of Lands make a gift in Taile or a Lease for life render a rent and dyeth and the issue bring a Formedon in the discending the Reversion and rent shall not barre the demandant because by his Formedon he is to defeat the reversion and rent Et non potest adduci exceptio ejusdem rei cujus petitur dissolutio 38 E. 3. 22. 23. 24. 13 E. 3. gar 35. But if other Assets in fee simple doe discend then this waâ—ranty in Law and Assets is a good barre in the Formedon 16 E. 3. Age 45. 31 E. 3. gar 29. Here four things are to be observed 1. That no warranty in Law doth barre any collaterall title but is in nature of a lineall warranty wherein note the equity of the Law Fo. 384. b. 2. That an expresse warranty shall never binde the heirs of him that made the warranty unlesse they be named but in case of warranty in Law in many cases the heires shall be bound to warranty albeit they be not named 3. That in some cases warranties in Law do extend to execution in value of speciall Lands and not generally of Lands descended in fee simple lib. 4. fol. 121. Bustards Case 4. That warranty in Law may be in some cases created without Deed as upon gifts in Taile Leases for life eschanges and the life 45 E. 3. 20. b. Also it is necessary to shew who shall take advantage of a warranty as Assignee by way of voucher to have recompence in value If a man infeoffee A. and B. to have and to hold to them and their heires and Assignes with a clause of warranty praedictis A. and B. eorum haered Assignatis in this case if A. dyeth and B. surviveth and dyeth and the heire of B. infeoffeth C. he shall vouch as Assignee and yet he is but the Assignee of the heir of one of them for in judgment of Law the Assignee of the heire is the Assignee of the Ancestor and so the Assigne of the Assignee shall vouch in infinitum within these words his Assignes 14 E. 3. gar 33. 13 E. 1. gar 83. lib. 5. fol. 17. b. Spencers case 38 E. 3. 21.
If a man infeoff A. to have and to hold to him his Heires and Assignes A. infeoffeth B. and his heirs B. dyeth the heire of B. shall vouch as Assignee to A. so as heires of Assignees and Assignees of Assignes and Assignes of Heirs are within this word Assignes which seemed to be a Qu. in Bractons time and the Assignee shall not onely vouch but have a Warrantia Cartae 12. E. 2. vouch 263. 19 E. 2. gar 85. 13 E. 1. ib. 93. 36 E. 3. gar 1. 4 H. 8. Dyer 1. F. N. B. 135. If a man doth warrant Land to another without this word Heires his heirs shall not vouch and regularly if he warrant land to a man and his heirs without naming Assignes his Assignee shall not vouch But if the Father be infeoffed with Warranty to him and his heires the Father infeoffeth his eldest Son with Warranty and dyeth the Law giveth to the Son advantage of the Warranty made to his Father because by act in Law the Warranty between the Father and the Son is extinct 43 E. 3. 23. 24 E. 3. 3. 11 H. 4. 94. 5 E. 3. Age 19. Pl. Com. 418. But note a diversity between a Warranty that is a Covenant real which bindeth the party to yield Lands or Tenements in recompence and a Covenant annexed to the Land which is to yield but damage for that a Covenant in many cases extendeth further then the Warranty As for Example It hath been adjudged that where two Coparceners made partition of Land and the one made a Covenant with the other to acquit her and her heirs of a Suit that issued out of the Land the Covenantee aliened in that case the Assignee shall have an action of Covenant and yet he was a stranger to the Covenant because the acquitall did run with the land 42 E. 3. b. per Finchden fol. 385. a. A. seised of the Manor of D. whereof a Chappel was parcel a Prior with the assent of his Covent Covenants by Deed indented with A. and his heirs to celebrate divine Service in his Chappel weekly for the Lord of the Manor and his Servants c. In this case the assignees shall have an action of Covenant albeit they were not named for that remedy by covenant doth run with the Land to give damages to the party grieved and was in manner appurtenant to the Manor 42 E. 3. 3. a. Laurence Pakenhams case 6 H. 4. 1. Ralph Brabsons case But if the Covenant had been made with a stranger to celebrate divine Service in the Chappell of A. and his heirs there the Assignee shall not have an action of Covenant for the Covenant cannot be annexed to the Manor because the Covenantee was not seised of the Manor Vide lib. 5. fol. 17 18. Spencers case 2 H. 4. 6. H. Hornes case And note that an Assignee of part of the Land shal vouch as Assignee As if a man make a feoffment in fee of two acres to one with Warranty to him his Heirs Assignes if he make a feoffment of one acre that feoffee shall vouch as Assignee for there is a diversity between the whole estate in part and part of the estate in the whole or of any part As if a man hath a Warranty to him his Heires and Assignes and he make a lease for life or a gift in Tail the lessee or donee shall not vouch as Assignee because the whole estate is out of the lessor or donor and by this means he shall take advantage of the Warranty But if a lease for life or a gift in Tail be made the remainder over in fee such a lessee or donee shall vouch as Assignee because the whole estate is out of the lessor and the particular estate and the remainder do in Judgment of Law to this purpose make but one estate 18 E. 4. 52. 10 E. 3. 58. 5 E. 3. 40. Accord H. 14. 1. in Com. Banc. If a man infeoff three with Warranty to them and their heirs and one of them release to the other two they shall vouch but if he had released to one of the other the warranty had been extinct for that part for he is an Assignee 40 E. 3. 14. 40 Ass 5. 33 H. 6. 4. 37 H. 8. Alienation c. 31. 8 H. 4. 8. If a man doth warrant land to two men and their heirs and the one make a feoffment in fee yet the other shall vouch for his moity 11 R. 2. Detin 46. 7 E. 3. 35. 46 E. 3 4. If a man at this day be infeoffed with warranty to him his heirs and assignes and he make a gift in Tail the remainder in fee the donee make a feoffment in fee that feoffee shall not vouch as Assignee but * he that cometh in in privity of estate If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or Tenant of the Land may rebutte and albeit no man shall vouch or have a Warrantia Cartae either as party heir or Assignee but in privity of estate yet any that is of another estate be it by Disseisin Abatement Intrusion Usurpation or otherwise shall rebut by force of the warranty as a thing annexed to the Land which sometimes was doubted in our Books 38 E. 3. 21. 26 E. 3. 56. l. 10. fo 96. b. Seymors Case 10 Ass 5. 35 Ass 9. 22 Ass 3. 988. 31 Ass 13. But herein note a diversity when he that rebutteth claimeth under the warranty and when he claimeth above the warranty for there he shall not rebut And therefore if Lands be given to two Brethren in fee simple with a warranty to the eldest and his heirs the eldest dyeth without issue the survivor albeit he be heir to him yet shall he neither vouch nor rebut nor have a Warrantia Cartae because his Title to the Land is by relation above the fall of the warranty and he cometh not under the estate of him to whom the warranty is made as the disseisor c. doth If a man make a gift in Tail at this day and warrant the land to him his heirs and assignes and after the donee make a feoffment and dyeth without issue the warranty is expired as to any Voucher or Rebutter for that the estate Taile whereunto it was knit is spent Otherwise it is if the gift and feoffment had been made before the Statute of Donis Cond for then both the donee and feoffee had a fee simple and so are our Books to be intended in this and the like cases Lib. 3. fo 63. Linc. Coll. case If A. be seised of Lands in fee and B. release unto him or confirmeth his estate in fee with warranty to him his heires and assignes All men agree this warranty to be good but some have holden That no warranty can be raised upon a bare Release or Confirmation without passing some estate or transmutation of possession 14 E. 3. garr 108. 12 H. 7. 1. But the Law as it appeareth
by Littleton himselfe is to the contrary and that both the party and as some doe hold his Assignee shall vouch but he that is vouched in that case must be present in Court and ready to enter into the warranty and to answer and the Tenant must shew forth the Deed of Release or Confirmation with warranty to the intent the Demandant may have an answer thereunto and either deny the Deed or avoid it for that at the time of the Confirmation made he to whom it was made had nothing in the land c. for otherwise the Demandant may counter-plead the Voucher by the Statute of W. 1 cap. 40. viz. that neither Vouchee nor any of his Ancestors had any seisin whereof he might make a feoffment And this is grounded upon the said Statute of W. 1. Sil neit son gar en present que lun voile gar de son gree maintenant enter en respons otherwise the Tenant must be driven to Warrantia Cartae 11 H. 4. 22. 10 E. 3. 52. 21 E. 3. 37. Vide Sect. 706. 738. 745. Vide 20 E. 1. Stat. ad vocat ad Warr. But a warranty of it selfe cannot enlarge an estate as if the lessor by Deed release to his lessee for life and warrant the land to the lessee and his heirs yet doth not this enlarge the estate 22 Hen. 6. 15. 2 Hen. 4. 13. 43 Ed. 3. 17. 43 Ass 42. 12 Ass 17. 12 Ed. 3. Tail 3. 22 Ed. 4. 16. b. 44 Ed. 3. 10. 44 Ass Bassingborns Ass If a man make a feoffment in fee with Warranty to him his heirs and assigns by Deed as it must be and the feoffee infeoff another by paroll the second feoffee shall vouch or have a Warrantia Cartae as Assignee albeit he hath no Deed of the Assignment l. 3. 63. If a man infeoff two their heirs and assigns and one of them make a feoffment in fee that feoffee shall not vouch as Assignee 29 Edw. 3. 70. 17 Edw. 2. Joynd in action 1. 11 Edw. 4. 8. If a man make a feoffment in fee to A. his heirs and assigns A. infeoffeth B. in fee who re-infeoffâ—th A. He or his assigns shall never vouch for A. cannot be his own Assignee But if B. had infeoffed the heir of A. he may vouch as Assignee for the heir of A. may be Assignee to A. in as much as he claimeth not as heir Sect. 734. fol. 386. a. The Heir shall never be bound by any expresse warranty but where the Ancestor was bound by the same warranty 31 Ed. 1. gar 83. Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita regis tantum A fortiori in case of Warranty which is in the realty Fleta lib. 2. cap. 55. Brit. fol. 65. b. 11 Hen. 6. 48. But a Warranty in Law may binde the Heir although it never bound the Ancestor and may be created by a last Will and Testament As if a man devise lands to A. for life or in Tail reserving a rent the devisee for life or in Tail shall take advantage of this warranty in Law albeit the Ancestor was not bound and shall binde his heirs also to Warranty although they be not named Also an expresse Warranty cannot be created without Deed and a Will in writing is no Deed and therefore an expresse Warranty cannot be created by Will 18 Ed. 3. 8. Sect. 736. fol. 386. b. Note a diversity the lien reall as the Warranty doth ever descend to the heir at the Common Law but the lien personall doth binde the speciall heirs as all the heirs in Gavelkinde and the heir on the part of the Mother vide Sect. 603 718 737. 11 E. 3. 7. 11 Hen. 7. 12. If two men make a feoffment in fee with warranty and the one dyeth the feoffee cannot vouch the survivor onely but the heir of him that is dead also but otherwise if two joyntly binde themselves in an Obligation and the one die the survivor only shall be charged 17 E. 3. Joynt 41. 16 H. 7. 13. 29 E. 3. 46. 12 H. 7. 3. 22 E. 3. 1. 17 E. 3. 8. 30 E. 3. 43. 19 H. 6. 55. l. 3. f. 14. Mat. Herberts Case Two brothers by demy venters the eldest releaseth with warranty to the disseisor of the Uncle and dyeth without issue the Uncle dyeth the warranty is removed and the younger brother may enter into the Land Sect. 737. Sect. 738. fol. 387. A warranty may be limited and a man may warrant lands as well for term of life or in Tail as in fee 38 Ed. 3. 14. 16 E. 3. Vouch. 87. If Tenant in fee simple that hath a warranty for life either by an expresse Warranty or by Dedi be impleaded and vouch he shall recover a fee simple in value albeit his warranty were but for term for life because the warranty extended in that case to the whole estate of the feoffee in fee simple but in the case that Littleton here putteth the Tenant for life shall recover in value but an estate for life because the warranty doth extend to that estate onely vide Sect. 733. 706. And here in this Section is implyed that a collaterall Warranty giveth no right but shall barre onely for life and after the party is restored to his action Also note that a Warranty may descend to the heirs of him that made it during the life of another Sect. 739. Si un home lessa ses terres a un aut aver tenant a luy a ses heires pur terme dauter vie le lessee mor. vivant oâ—luy a que vie c. un estranger enter en la terre l'heire le lessee luy poit ouster c. The heir of the lessee shall have the Land to prevent an occupant and so it is in case of an annuity or of any other thing that lieth in grant whereof there can be no occupant 77 E. 3. 48. 18 E. 3. 12. 11 H. 4. 42. 7 H. 4. 46. 8 H. 4 15. Dyer 8 Eliz. 253. 18 H. 8. 3. 27 H. 8. 21 H. 8. Estat Br. 10. 19 E. 3. Account 56. 33 Ass p. 17. 22 H. 6. 33. 39 E. 3. 37. vide Sect. 387. Sect. 740. Chattels as well reall as personall shall goe to the Executor or Administrator 11 E. 3. tit Ass 88. 11. Ass 21. 10 Eliz. Dyer 276. But if the Kings Tenant by Knights service in Capite be seised of a Manour whereunto an Advowson is appendant and the Church become void the Tenant dyeth and his heir within age the King shall present to the Church and not the Executor or Administrator but if the Land be holden of a common person in that case the Executor shall present and not the Guardian 24 E. 3. 26. F.N.B. 33. b. 34. a. If a Bishop hath a Ward fallen and dyeth the King shall not have the Ward nor
the Successor but the Executor and the Ward shall be Assets in his hands So it is of Heriots Relief c. 40 E. 3. 14. But if a Church become void in the life of a Bishop and so remain untill after his decease the King shall present thereunto and not the Executor or Administrator for nothing can be taken for a prefentment and therefore it is no Assets 9 H. 6. 58. 11 H. 4. 7. Sect. 741. fol. 388. a. Here the collaterall warranty doth descend upon the issue in tail before any right doth descend unto him wherein this diversity is to be observed vide Sect. 707. where the right is in esse in any of the Ancestors of the heir at the time of the discent of the collaterall warranty there albeit the warranty descend first and after the right doth descend the collaterall warranty shall bind as appeareth in this case of our Author But where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warranty there it shall not bind As if Lord and Tenant be and the Tenant make a feoffment in fee with warranty and after the feoffee purchase Seigniory and after the Tenant cesse the Lord shall have a Cessavit for a warranty doth extend to rights precedent and never to any right that commenceth after the warranty 7 E. 3. 48. 30 Hen. 8. 42. Also a warranty shall never barre any estate that is in possession reversion or remainder that is not devested displaced or turned to a right before or at the time of the fall of the warranty If a Lease for life be made to the Father the remainder to his next heir the Father is disseised and released with warranty and dyeth this shall barre the heir although the warranty doth fall and the remainder cometh in esse at one time lib. 1. fol. 67. Archers Case If there be Father and Sonne and the Sonne hath a rent service suit to a Mill rent charge rent seck common of pasture or other profit appreâ—eâ—â—â—â— out of the Land of the Father and the Father maketh a feoffment in fee with warranty and dyeth this shall not barre the Sonne of the rent common c. quia in tali casu transit terra cum onere and he that is in seisin or possession need not to make any entry or claim and albeit the Sonne after the feoffment with warranty and before the death of the Father had been disseised and so being out of possession the warranty descended upon him that it should not binde him because at the time of Warranty made the Son was in possession Temps E. 1. vouch 296. 31 Ass 13. 22 Ass 36. 41 Ass 6. 33 E. 3. 3. gar 24. .. 10. f. 97. E. Seymors Case So if my collateral Ancestor releaseth to my Tenant for life this shall not binde my reversion or remainder because the reversion c. continued in mee 45 E. 3. 31. 21 H. 7. 11. But if he that hath a Rent Common or any profit out of the land in Tail disseise the Tenant of the land and maketh a feoffment to the land and warranteth the land to the feoffee and his heirs regularly the Warranty doth extend to all things issuing out of the land i.e. to warrant the land in such plight and manner as it was at in the hand of the feoffor at the time of the feoffment with Warranty and the feoffee shall vouch as of lands discharged of the rent c. at the time of the feoffment made Vide S. 698. 21 E. 4. 26. 28 H. 7. 9. 3 H. 7. 4. 7 H. 4. 17. 30 H. 8. Dyer 42. 30 E. 3. 30. 9 E. 3. 28. 45 E. 3. vouch 72. F.N.B. 145. 14 H. 8. 6. A woman that hath a rent charge in fee intermarries with the Tenant of the land an estranger releasâ—th to the Tenant of the land with Warranty he shall not take advantage of this Warranty either by Voucher or Warrantia Cartae for the wife if the husband die or the heire of the wife living the husband cannot have an action for the rent upon a Title before the Warranty made for if the heir of the wife bring an Assize of Mordanc this action is grounded after the Warranty whereunto the Warranty shall not extend So it is if the grantee of the rent grant it to the Tenant of the land upon condition which maketh a feoffment of the land with Warranty this Warranty cannot extend to the rent albeit the feoffment was made of the land discharged of the rent for if the condition be broken and the grantor be intituled to an action this must of necessity be grounded after the Warranty made But in the case aforesaid when the woman grantee of the rent marrieth with the Tenant and the Tenant maketh a feoffment in fee with warranty and dieth in a Cui in vita brought by the wife as by Law shee may the feoffee shall vouch as of lands discharged at the time of the warranty made for that her Title is Paramount So if Tenant in Tail of a rent charge purchase the land and make a feoffment with warranty if the issue bring a Formedon of the rent the Tenant shall vouch causa qua supra 7 H. 4. â—7 But some do hold that a man shall not vouch c. as of land discharged of a rent service 10 E. 4. 2. b. 28 E. 3. 55. 44 E. 3. 29. Also no warranty doth extend unto meer and naked Titles as by force of a condition with clause of Re-entry Exchange Mortmain consent to the Ravisher c. because that for these an action doth lie and if no action can bee brought there can be neither Voucher Writ of Warrantia Cartae nor Rebutter and they continue in such plight and essence as they were by their originall creation and by no act can be displaced or devested out of their originall essence and therefore cannot by any warranty l. 10. fo 97. 41 Ass p. 46. And albeit a woman may have a Writ of Dower c. yet because her title of Dower cannot be devested out of the originall essence a collaterall warranty of the Ancestor of the woman shall not barre her So it is of a feoffment causa matrim praelocuti 34 E. 3. Droit 72. 21 E. 4. 82. A warranty doth not extend to any lease for years or to any estates of Tenants by Statute Staple Merchant or Elegit or any other Chattell but onely to Freehold or Inheritance And this is the reason that in all actions which lessee for years may have a warranty cannot be pleaded in barre as in an action of Trespasse or upon the Statute of 5 R. 2 c. 21 E. 4. 18. 82. 1 H. 7. 12. 22. 11 H. 7. 15 16. 20 H. 7. 2. b. 14 H. 7. 22. 43 E. 3. 15. per Finchden in Qu. imp 15 H. 7. 9. But in such actions which none but a Tenant of the Freehold can have as
upon the Statute of H. 6. Ass c. there a warranty may be pleaded in barre Although a collaterall warranty be descended yet if the estate whereunto the warranty was annexed be defeated albeit it be by a meer stranger as in this case that Littleton here put by the discontinuee the warranty is defeated and although the discontinuance remain and no Remitter wrought to the heir yet the warranty is defeated and barre removed so as the issue in Tall may have his Formedon and recover the land Sublato Principali tollitur Adjunctum 3 H. 7. 9. b. 16 E. 3. Continual Claim 10. 9 H. 4. 8. Pl. Com. 158. Sect. 743. Fol. 390. a. Si tenant in tail fait un feoffment a son uncle pui◠l' uncle fait un feoffment in fee ovesque gar c. a un auter c. When the uncle taketh back as large an estate as he had made the warranty is defeated because he cannot warrant land to himself And so it is if the uncle had made the warranty to the feoffee his heirs and assigns and taken back an estate in fee and after infeoffed another yet the warranty is defeated for that he cannot be assignee to himself 40 E. 3. 14. 16 E. 3. Vouch. 87. 19 E. 3. Vouch. 122. 17 E. 3. 73 74. 20 H. 6. 29. A man shall not regularly vouch himself as assignee of a fee simple And yet if the Father be infeoffed with warranty to him and his heirs the Father infeoffeth his heir apparent in fee and die he shall vouch himself and be heir in Borough English by reason the act in Law determined the warranty between the Father and the Son 41 E. 3. 25. a. But if a man make a feoffment in fee with warranty to the feoffee his heirs and assignes and the feoffee reinfeoffe the feoffor and his wife or the feoffor and any other stranger the warranty remaineth still 11 H. 4. 20 42. 17 E. 3. 47 49. 18 E. 3. 56. 29 E. 3. 46. 39 E. 3. 9. Sect. 744. ib. A man infeoffeth a woman with warranty they intermarry and are impleaded upon the default of the husband the wife is received she shall vouch her husband c. notwithstanding the warranty was put in suspence 6 E. 2. Vouch. 257. 3 E. 3. ib. 201. 5 E. 3. 16. 178. And so on the other side if a woman infeoffe a man with warranty and they intermarry and are impleaded the husband shall vouch himself and his wife by force of the said warranty 4 E. 2. Vouch. 245 246. An Infant en ventre sa mere may be vouched if God give him a birth and if not such a one heir to the warranty but he cannot be vouched alone without the heir at the Common Law for Processe shall be presently awarded against him Temps E. 1. gard 1. 3. 31 E. 1. Breve 873. 8 E. 2. Vouch. 237. 11 E. 3. ib. 13. 9 H. 6. 24. Pl. Com. Stowels Case per Saunders and Brown Tenant in Tail maketh a feoffment in fee with warranty and disseise the discontinuee and dieth seised leaving Assets to the issue some hold that in respect of this suspending warranty and Assets the issue in Tail shall not be remitted but that the discontinuee shall recover against the issue in Tail and he take advantage of his warranty if any he hath and after in a Formedon brought by the issue the discontinuee shall barre him in respect of the warranty and Assets and so every mans Right saved 21 E. 3. 36. a. b. 38 E. 3. 21. 44 E. 3. 26. 45 E. 3. Title 32. 44 E. 3. ib. 31. 33 E. 3. ib. 4. Sect. 745. Note a diversity In the case of an Appeal the Defendant shall forfeit no lands but such as he had at the time of the outlawry pronounced for that there is no time alledged in the Writ when the Felony was done But in case of Indictment such as he had at the time of the Felony committed for there is a certain time alledged And in the case of the Indictment there is also a diversity to be observed for it shall relate to the time alledged in the Indictment for avoiding of Estates Charges and Incumbrances made by the Felon after the Felony committed but for the mean Profits of the land it shall relate onely to the Judgement as well in this case of Outlawry as in other cases 33 E. 3. Forfeit 30. 38 E. 2. 31. 3 E. 4. 25. 19 E. 4. 2. Pl. Com. 488. b. Felony Ex vi termini significat quodlibet capitale crimen felleo animo perpetratum Glan If a Felon be convicted by Verdict Confession or Recreancy he doth forfeit his goods and chattels c. presently A man is said convict before he hath judgement For Felony by Chance-medley or se defendendo or petit larceny a man shall forfeit his goods and chattels and no lands of any estate of Freehold or Inheritance Stanf. prerog 45. b. 16 E. 3. Cor. 116. By the Law at this day under the word Felony in Commissions c. is included Petit Treason Murther Homicide Burning of houses Burglary Robbery Rape c. Chance-medley se defendendo and Petit larceny Sect. 746 747. It is a generall rule That having respect to all those whose blood was corrupted at the time of the Attainder the Pardon doth not remove the corrupting of blood neither upward nor downward Bract. l. 3. fo 132. c. Brit. fo 215 b. As if there be Grandfather and Son and the Grandfather and Father have divers other Sons if the Father be attainted of Felony and pardoned yet doth the blood remain corrupted not onely above him and about him but also to all his children born at the time of this Attainder But in the case of Littleton if Tenant in Tail at the time of his Attainder had no issue and after his pardon had issue that issue should have been bound by the warranty And if his Father had issue before the pardon and had issue also after and dieth nothing can descend to the youngest for that the eldest is living and disabled But if the eldest son had died in the life of the Father without issue then the youngest should inherit Nota That a judgement against a man for felony is that he be hanged by the neck untill he be dead but implicativè he is punished 1. In his wife That he shall lose her dower 2. In his children they shall become base and ignoble 3. He shall lose his posterity for his blood is stained and corrupted that they cannot inherit unto him or any other Auncestrel 4. He shall forfeit all his lands and tenements which he hath in fee and which he hath in tail for term of his life And 5. all his goods and chattels The wife of a man attainted of high Treason or pety Treason shall not be received to demand Dower unlesse it be in certain cases specially provided for Stan. Pl. Cor. 195. But the wife of a
Rot. Parliament 18. H. 6. 11. 29. Ap Guilliams case 10. E. 3. c. 2. 3. H. 7. f. 6. Sect. 469. Lou home ad forsque droit a la terre nad riens in le reversion ne in le remainder in fait si tiel home release tout son droit a un que est tenant de le franktenement tout son droit ale comment que nul mention soit fait de les heires celuy a que le release est fait To a release of a right made to any that hath an estate of Freehold in Deed or in Law no privity at all is requisite Lessee for life letteth the same land over to another for term of the life of his lessee the remainder to another in fee A release in this case by the first lessor to the lessee doth not enure by way of Mitter le droit for then should he have the whole right but as it were by way of extinguishment in respect of him that made the release and that it shall enure to him in the remainder which is a quality of an inheritance extinguished but yet the right is not extinct in deed Sect. 471. Fol. 275. b. If a disseisor make a lease for life the remainder in fee albeit they to some purposes are as one Tenant in Law yet if the disseisee release all actions to the Tenant for life he in the remainder shall not take benefit of this release for it extendeth only to Tenant for life l. 8 fo 148. Edw. Althams Case Also if the disseisor make a lease for life and the disseisee release all actions to the lessee this enureth not to him in the reversion And so our Author is to be understood of a release of Rights and not of a release of actions to the Tenant for life as to or for the benefit of him in the remainder or reversion Sect. 472. Fol. 276. a. If Tenant for life be disseised by two and he release to one of them this shall enure to them both for he to whom the release is made hath a longer estate then he that releaseth and therefore cannot enure to him alone to hold out his Companion for then should the release enure by way of Entry and grant of his estate and consequently the disseisor to whom the release is made should become Tenant for life and the reversion revested in the lessor which strange transmutation of estates in this case the Law will not suffer 13. E. 4. Discent F. 29. But if lessee for years be ousted and he in the reversion disseised and the lessee release to the disseisor the disseisee may enter for the term of years is extinct and determined And so it is if Donee in Tail be disseised by two c. But if the Kings Tenant for life be disseised by two and he release to one of them he shall hold out his companion for the disseisor gained but the estate for life So if two joynt-tenants make a lease for life and after to disseise the Tenant for life and he release to one of them he shall hold out his companion for the disseisin was but of an estate for life If Tenant for life be disseised by two and he in the reversion and Tenant for life joyn in a release to one of the disseisors he shall hold out his companion and yet it cannot enure by way of entry and Feoffment But if they severally release their severall Rights it shall enure to both the disseisors But here in Littletons Case where Tenant in fee simple is disseised by two and release to one of them this for many purposes enures by way of entry and Feoffment and therefore he to whom the release is made shall hold out his companion and be made sole Tenant of the fee simple Mes fi un disseisor infeffa 2 c. auterment est For that the Feoffees are in by Title and are presumed to have a Warranty which is much favoured in Law and the disseisors are meerly in by wrong 21 H. 6. 41. If two men do gain an Advowson by usurpation and the right Patron release to one of them it shall enure to them both for seeing their Clerk come in by admission and institution which are judiciall acts they are not meerly in by wrong for an usurpation shall cause a Remitter F. N. B. 31. M. But if a lease for life be made the remainder for life the remainder in fee and he in remainder for life disseise the Tenant for life and then the Tenant for life dieth the disseisin is purged and he in remainder for life hath but an estate for life And so note a diversity where the particular estate for life is precedent and when subsequent 19. H 6. 21. 38. H. 6. 28. Case de Occup Where our Author putteth his case of one disseised put the case that two joyntenants in fee be disseised by two and one of the disseisees release to one of the disseisors all his right he shall not hold out his companion because the release is but of the moity without any certainty If a man be disseised by two women and one of them take husband and the disseisee release to the husband this shall enure to the advantage of both the disseisors because the husband was no wrong doer but in a manner by Title If two disseisors be and they make a Lease for life and the disseisee release to one of them this shall enure to them both and to the benefit of the lessee for life also for he cannot by the release have the sole possession and estate for part of the estate is in another And so it is if the disseisors make a lease for years c. But the mortgage upon condition having broken the condition is disseised by two the mortgager having Title of entry for the condition broken releases to the one disseisor albeit they be in by wrong yet the release shall enure to them for two causes 1. For that they are not wrong doers to the Mortgager but to the Mortgagee and by Littletons case it appeareth that wrong is done to him that made the Release 2. That he that makes the Release hath but a Title by force of a condition and Littletons case is of a right Like Law is of an entry for Mortmain or a consent to Ravishment c. Sect. 473. Note that a release by one whose entry is lawfull to him that is in by wrong shall purge and take away all mean estates and titles If A. disseise B. who infeoff C. with warranty who infeoff D. with warranty and E. disseise D. to whom B. releases this doth defeat all the mean estates and warranty causa qua suprae 11. H. 4. 33. 9. H. 7. 25. 2. E. 4. 16. 21. E. 4. 78. 12. Ass 22. vide 3. H. 6. 38. Sect. 474. Fol. 276. b. If the disseisor make a lease for life and the lessee make a feoffment in fee and the disseisee release to
the Feoffee this release shall take away the entry of the disseisor for the alienation which was made to his disinheritance he having the inheritance by disseisin so as he could have no warranty annexed to it and Tenant for life forfeited his estate But if the entry of the disseisee were not lawfull it is otherwise as the Book of 9. H. 7. 25. is of an estate Tail mutatis mutandis Vide l. fo 277. a. Sect. 475. Abate Vide N.B. 115. Brit. cap. 51. Bract. l. 4. cap. 2. Abatamentum is an entry by interposition A Disseisin is a wrongfull putting out of him that is actually seised of a Freehold and Abatement is when a man died seised of an estate of Inheritance and between the death and entry of the heir an estranger doth interpose himself and abate Intrusion 1. properly is when the Ancestor died seised of any estate of inheritance expectant upon an estate for life and then Tenant for life dieth c. and an estranger doth interpose himself and intrude 2. He that enters upon any of the Kings demesns and taketh the profits is said to intrude upon the Kings Possessions F.N.B. 203. Fleta l. 4. cap. 30. Pl. Com. case de Mynes 3. When the heir in ward enters at his full age without satisfaction for his marriage the writ saith quod intrusit F.N. B. 141. F. Deforciamentum comprehendeth not only these aforenamed but any man that holdeth Land whereunto another man hath right be it by discent or purchase is said to be a deforcer Usurpation hath two significations in the common Law one when an estranger that no right hath presenteth to a Church and his Clark is admitted and instituted 2. When any subject doth use without lawful warrant Royall franchises he is good to usurp c. Purprestura est c. generaliter quories aliquid sit ad nocumentum regii tenementi vel regiae viae vel aliquarum publicar vel civitatis c. Glanv l. 9. ca. 11. Brit. fo 28. 29. And because it is properly when there is a house builded or an inclosure made of any part of the Kings demesne or of an high way or a common street or publike water or such publike things it is derived of the French word Pourpris which signifieth an inclosure but specially applyed as is aforesaid by the common Law Sic nota differentiam inter disseisinam Abatamentum Intrusionem deforciamentum usurpationem purpresturam Sect. 476. Fo. â—77 b. But if the Feoffee upon condition make a Feoffment in fee over without any condition and the disseisee release to the second Feoffee the condition is destroyed by the release before the condition broken or after for the state of the second Feoffee was not upon any express condition as Littleton here putteth his case and he may have advantage of the release because it is not against his own proper acceptance as Littleton speaketh in the next Section L. 1. fo 147. Mayowes case But if it be a wrongfull title such a title is taken away by a release As if A. disseised B. to the use of C.B. release to A. this shall take away the agreement of C. to the disseisin because it should make him a wrong doer as if the disseisor be disseised the disseisee release to the second disseisee this taketh away the right of the first disseisor had against the second and a relation of an estate gained by wrong shall never defeat an estate subsequent gained by right against a single opinion not affirmed by any other in our books 14. H. 8. 11. per Portm Si disseisee release al Feoffee sur condition ceo namendre lestate le Feoffee c. Sect. 477. Fo. 478. a. Home navera advantage per un release que serre enconter son proper acceptance encounter son grant dem compt que asc ' ont dit que lou enier de hâ—me est congeable sur un tenant sil release a mes le tenant que ceo availoit a le tenant sicom il ust enter sur le tenant puis luy infeoffa c. ceo neâ— pas voier en chesc ' cas Car si le disseisee ust enter sur le Feoffee sur condition puis luy infeoffa donques est le condition tout defeat mes il ne pas void per asc ' tiel release sant entry fait c. If A. and B. be joynt disseisors and B. grant a rent charge and the disseisee release to A. all his right A. shall avoid the rent charge because it was not granted by him and so not within the reason of our authour If two disseisors be and they infeoffee another and take back an estate for life or in fee albeit they remain disseisors to the disseisee as to have an Ass against them yet if he release to one of them he shall not hold our his companion because their state in the land is in by Feoffment If there be two disseisors and they be disseised and they release to their disseisor and after disseise him and then the disseisee release to one or both of them yet the second disseisor shall reenter for they shall not hold the land against their own release If a disseisee release to one of the disseisors to some purpose this shall enure by way of entry and Feoffment viz. as to hold out his companion But as to a rent Charge granted by him it shall not enure by way of entry and Feoffment for if the disseisee had entred and enfeoffed him the rent charge had been avoided But it is a certain rule that when the entry of a man is congeable and he release to one that is in by title as here to the Feoffee upon condition is it shall never enure by way of entry and Feoffment either to avoid a condition with which he accepted the land charged or his own grant or to hold out his companion And where it appeareth by our authour that acts done by the disseisor shall not be avoided by the release of the disseisee It is to be noted that acts made to the disseisor himself shall not be avoided by the alteration of his estate by the release of the disseisee as if the Lord before the release had confirmed the estate of the disseisor to hold by lesser services the disseisor shall take advantage of it and so of estovers to be burnt in the house and the like Law is of a warrantty made unto him If an alien be a disseisor and obtain letters of denization and then the disseisee release unto him the King shall not have the land for the release hath altered the estate and it is as it were a new purchase otherwise it is if the alien had been the Feoffee of a disseisor Fo. 278. b. If the Lord disseise the Tenant and is disseised the disseisee release to the second disseisor yet the Seignory is not revived for between the parties the release enures by way