taile in fee with warranty and die without issue this is collaterall to the middle sonne In the same manner it is in case where the middle sonne hath the same land by force of the same remainder because his elder brother made no discontuance but died without issue of his body and after the middle brother doth make a discontinuance with warranty c. and dieth without issue this is a collaterall warranty to the youngest sonne And in this case if any of the sonnes be disseised and the father that made the gift c. releaseth to the disseisor all his right with warranty this is a collaterall warranty to the son upon whom the warranty doth descend If lands be given to A and the heirs of his body and Co. 8. 52. Litt. Sect. 713. for want of such issue to E his sister and the heires of her body and A doth make a feoffement with warranty and die without issue having two sisters E and S this is a collaterall warranty to E. If lands be given to a man and the heires of his body begotten Litt. Sect. 741. who taketh a wife and hath issue a son by her and the husband doth discontinue the taile in fee and dieth and after the wife doth release to the discontinuee with warranty and dieth and the warranty doth descend to the sonne this is collaterall to him If tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile doth release to the disseisor with warranty in fee and dieth without ifsue and the tenant in taile hath issue and dieth this is collaterall as to the issue If tenant in tail have issue two daughters and die and the elder enter into all to her own use thereof make a feoffment in fee with warranty and die without issue this warranty as to the other sisters part is collaterall but not as to her own If Co. super Litt. 373. the husband and wife tenants in speciall tail have issue a daughter and the wife die and the husband by a second wife have issue another daughter and discontinueth in fee and dieth and a collaterall Auncestor of the daughters release to the discontinuee with warranty and dieth and the warranty descend upon both the daughters this is a collaterall warranty to them If lands be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the father die and the brother release with warranty and die without issue this is collaterall to the daughter If tenant in taile make a lease for life the Litt. Sect. 738. remainder to another in fee and a collaterall Auncestor doth confirm the estate of tenant for life with warranty and die and after the tenant in taile die having issue this is a good binding collaterall warranty during the estate for life And in all these and Litt. Sect. 712. Co. super Lit. 374. Co. 10. 96. Stat. of Glouâ— ch 3. Co. super Litt. 365. Stat. 11 H. 7 chap. 20. such like cases of a collaterall warranty whether the right bee the right of an estate taile or the right of an estate in fee simple that is to be barred it is a bar without any assets for in this case the rule is That a collaterall warranty is a barre to him that demandeth fee simple and also to him that demandeth fee taile without any other descent of lands in fee simple so that the heir on whom the same warranty is descend can never have the land so warranted whiles the warranty doth continue in force but is bound thereby except it be in some speciall cases restrained by Act of Parliament as where the husband alone during his wives life or after her death being tenant by the curtesie make a feoffement by fine or deed of his wives land which shee hath by descent or purchase with warranty this will not barre her heire without assets of other lands in fee simple descended from the same Auncestor that made the warranty Or where a wife after her husbands death shall alone or with her succeeding husband alien release confirm or discontinue with warranty the land she holdeth in dower or in taile of the gift of her former husband or any of his Auncestors this warranty is voidable and will not binde with assets If the son purchase land c. and after let it to his father or any Litt. Sect. 699 700 701 702. Finch 82. Co. super Litt. 〈◊〉 10. What shall be said a warranty that doth begin by Dissâ—â—sin And wâ—at such a warranty doth work other Auncestor for years or at will and he by his deed doth infeoffe a stranger and that with warranty and after dieth whereby the warranty doth descend upon the heire this warranty doth commence by disseisin So if tenant by Elegit Statute Merchant Guardian in Chivalry or Soccage or because of Nurture make a feoffement with warranty and this warranty doth descend on his heir this warranty doth commence by disseisin So if one that hath no right at all enter into my land and make a feoffement to another with warranty So if one Coparcenor enter into the whole land and make a feoffement in fee with warranty this warranty as to the one moity doth begin â—y disseisin So if father and sonne purchase lands to them jointly c. and the father alien the whole to another with warranty c. and after the father dieth this warranty as to the one moity doth beginne by disseisin But if the purchase bee to them two and the heires of the sonne it is otherwise for if the sonne enter in the life time of the father the warranty is avoided for all but if hee doe not enter then as to the fathers moity it is a collaterall warranty And if the purchase be to the father and son and the heirs of the father and the father alien with warranty c. in this case the warranty is good for the whole If the father be tenant for life the remainder to his son and heir Co. 5. 80. super Litt. 366. 367. in fee and the father by covin and consent of purpose to bar the heir by a collaterall warranty maketh a lease for years to the end that the lessee should make a feoffment in fee that the father may release to the feoffee with warranty and all this is done accordingly and the father dieth and the warranty doth descend to the sonne in this case the warranty shall be said to beginne by disseisin But if the father in this case make a feoffement in fee with warranty and die this is a good warranty to binde the sonne albeit it be done of purpose to bar him So if one brother make a gift in taile to another and the uncle doth disseise the donee and infeoffeth another with warranty the uncle dieth and the warranty descendeth on the donor and
for quiet enjoying Co. 4. 80. the implyed covenant is gone Expressum facit cessare tacitum By a release of all covenants from the covenantee the covenant 18 E. 4. 8. Release is discharged so as the release be by deed for a covenant by deed cannot be discharged by word And therefore if A by deed covenant with B to build a house by a day and B doth wish him to let it alone this is no discharge of the covenant If the lessor accept the rent of the lessee or his assignee after Pasc 6. Car. B. R. Adjudg Bachelors case a covenant broken this doth not discharge the breach of the covenant but the lessor may sue for it notwithstanding And so we come to a Warranty being a speciall kind of covenant and therefore next in order to be spoken to CHAP. VIII Of a Warranty A Warranty is a covenant reall annexed to lands or tenements Finch ley 39. Co. super Lit. 365. 1. Warranty Quid. whereby a man and his heires are bound to warrant the same Or it is where a man is bound to warrant the land or hereditament that another hath And he that doth make this warranty is called the warrantor and he to whom it is made Warrantor Warrantee the warrantee There are two kind of warranties 1. A warranty in deed 2. Quotuplex Co. 1. 2. super Lit. 365. 4. 81. or an expresse warranty which is when the same is expressed i. when a fine or feoffement by deed is levied or made in fee or a lease for life is made by deed comprehending warranty or which hath an expresse clause of warranty contained in it as when a conusor feoffor or lessor doth covenant to warrant the land to the conusee feoffee or lessee whch is in these words Ego I S heredes mei warrantizabimus imperpetuum defendemus W S heredibus suis tenementa predicta contra omnes homines imperpetuum And by the Statute of Bigamis Dedi is made an expresse warranty during the life of feoffor 2. A warranty in law or an implied warranty which is when it is not expressed by the party but tacite made and implied by the law whereof see divers Examples infra The warranty in deed also is either lineall which Co. super 383 384. 370. 365. is thus described A covenant reall annexed to the land by him which either was owner or might have inherited the land and from whom his heire lineall or collaterall might by possibility have claimed the land as heire from him that made the warranty Or else it is collaterall which is thus described A warranty made by him that had no right or possibility of right to the land and is collaterall to the title of the land Also there is a warranty which doth commence by disseisin or wrong of all which â—ee divers examples afterwards And note that all these things here are to be applied to warranties of lands and concerning freeholds and inheritances for there is a warranty of goods and cattells in contracts of which we treat not here The fruit and effect of this warranty in deed is that it doth alwaies Co. super Lit. 265. 372. 365. 384. Co. 4. 121. 10. 97. conclude and barre the warrantor himselfe of the land so 3. The fruit and effect of it and what use may be made of it warranted for ever so that all his present and future rights that he hath or may have therein are hereby extinct And therefore if the father be dissâ—ised and the sonne in his life time release all his right to the land to the disseisor and make a warranty of the land in the deed and then the father dieth and the right of the land descendeth to the sonne in this case albeit the release doth not barre the sonne yet the warranty doth barre him And for the most part also it doth conclude and barre the heires of him that made the warranty to whom the same warranty doth descend to demand the same land against the warranty for if it be a lineall warranty it is a barre of an estate in fee simple without any Assets i. without any other land descended to him in fee simple from the same Ancestor that made the warranty And with assets it is a barre of an estate in taile And if it be a collaterall warranty it is with or without assets a barre of an estate in fee simple or â—ee taile and all possibility of right thereunto and yet so as it doth not passe any estate or right but only bind the right so long as the warranty is in force for if the warranty be avoided the right may be revived But neither the lineall or collaterall warranty can enlarge an estate And therefore if a lessor by deed release to his lessee for Co. super Lit. 389. c. life and warrant the land to him and his heires this doth not make his estate greater neither will it barre titles of entry or action in cases of Mortmaine consent to a Ravishor mortgage or dower And therefore if an Ancestor of the Lord hath title to enter upon an Alienation in Mortmaine and he release or make a feoffement with warranty this warranty will neither barre him nor his heire So if a collaterall Ancestor will make a warranty which doth after descend upon one that hath title of entry upon a condition broken this will not barre his entry c. neither will it barre any right that shall commence after the warranty made And the warranty that doth commence by disseisin doth not bind or barre any estate with or without Assets And in cases where the lineall or collaterall warranty is a barre Co. super Lit. 265. Co. 10. 98 99. Dier 42. Co. super Lit. 101. there if the party be impleaded by him or his heires that made the warranty the party impleaded that is tenant of the land may plead and shew forth this warranty against him and de mand Judgement whether he contrary to his owne warranty shall be suffered or received to demand the thing warranted and this in pleading is called a Rebutter And if he be impleaded or â—ued by another for Rebutâ—er Quid. the land then he to whom the warranty is made or his heires may vouch i. call in the warrantor or his heires to warrant the land Voucher Quid. And this is an interpleader in the nature of an action brought by the warrantor against the warrantee wherein he that doth vouch called the voucher is demandant and he that is vouched called Voucher Vouchee the vouchee is made tenant or defendant to the action and the vouchor is as it were out of the suite And this second tenant the vouchee is called the tenant by the warranty And hereupon shall Tenant by the warranty Quid. Summons ad warrantizandum Quid. issue forth to the Sheriffe a writ to summon the vouchee to appeare called a
of the descent of the warranty the estate of freehold or inheritance be displaced and devested And therefore if there be father and son and the sonne â—â—th a rent-service suit to a mill rent-charge rent-seck common of pasture or other profit apprender out of land of the father and the father maketh a feoffment in fee with warranty and dieth this shall not barre the sonne of the rent common c. And albeit the sonne after the feoffement with warranty and before the death of the father had been disseised and so being out of possession the warranty had descended upon him yet this warranty should not binde him So if my collaterall Auncestor release to my tenant for life with warranty and die and this warranty descend upon me this shall not binde my reversion or remainder But if in the case before the sonne be disseised of the rent c. and affirme himselfe to be disseised by the bringing of an Assise for otherwise he shall not be said to be out of possession of a rent or the like and after the father doth release with warranty and die in this case the collaterall warranty shall binde and barre the son of his rent c. And if in the last case my tenant for life be disseised and my Auncestor doth release to the disseisor with warranty and die this is a good warranty to barre and bind me 8. That Litt. Sect. 734. the warranty doe take effect in the life time of the Auncestor and thâ—t he be bound by it for the heire shall never be bound by an expresse warranty but where the Auncestor was bound by the same warranty and therefore a warranty made by Will is void 9. That the heire claim in the same right that the Auncestor doth Co. super Litt. 370. for if one bee a successor onely in case of a corporation hee shall not be bound by the warranty of a naturall Auncestor 10. That Litt. Sect. 726. Co. 1. 67. 140. super Litt. 380. the heire that is to be barred by the warranty be of full age at the time of the fall of the warranty for if my Auncestor make a feoffment or a release with warranty and at this time I am within age and after he die and the warranty descend upon mee within age this warranty shall not bind me but if I become of age after the warranty of my Auncestor and before his death in this case the warranty may barre mee And in the first case it will barre me also whiles it is in â—orce but I may by my entry avoid it And the same Law is of a woman covert And yet if the entry of an infant or a woman covert be not lawful when the warrantie doth descend in this case the warrantie shall binde them as well as any other for such a warrantie cannot be avoided but by entrie and avoiding the estate And where the husband is within age at the time of the descent of a warranty to his wife and the entrie of the wife is taken away there the warranty shall bind the wife If lands be given to A for life and after to the next heir male Co. 1. 66. 44 Ed. 3. 30. 44 Ass pl. 35 of A and the heires males of the body of that heire male and A having issue B makes a feoffment of the land with warrantie to I S this is a good warrantie and a barre to the issue for a man may be barred of his right by a warrantie which hee could never avoid as where lessee for life is disseised and a collaterall Auncestor of the lessor doth release to the disseisor with warrantie and die and this doth descend upon the lessor by this he is barred A warrantie made for life or in taile is good and shall binde Litt. Sect. 738 Co. super Litt. 387. for so long onely as if tenant in taile of land let it for life the remainder to another in fee and a collaterall Auncestor doth confirme the estate of the tenant for life and die and the tenant in taile hath issue this is a barre to the issue during the life of the tenant for life And in this case upon a voucher the recovery in value shall be put for life onely If one make a gift in taile and grant to warrant the land given Co. 10. 96. according to the gift this warrantie is good no longer then the estate doth last And no warrantie that a donor can make in this case can bar him of the land if the donee die without issue and the estate determine And where a warranty doth bar it is entire and doth extend to Co. 8. 52. super Litt. 373. all the land and to all persons upon whom it doth descend and is a barre of all the right that every one of them hath in the land so that if they have all right jointly or severally or one onely hath all the right and the rest none he that hath the right is barred And therefore if lands be given to A and the heirs of his body and for want of such issue to E his sister and the heirs of her body and A doth make a feoffment with warrantie and die without issue having two sisters E and S this is a bar to E for the whole albeit the warranty descend on her and another If there be tenant for life the remainder to his sonne and heire Co. 5. 79. apparant in taile and the father doth a feoffement in fee with warrantie and dieth in this case this is a good warrantie and will bar the son albeit it be made of purpose to bar him But if by agreement and covin between him and A and B he make a lease to A who makes a feoffment in fee to B to whom the father doth release with warrantie thinking by a collaterall warrantie to bar his son this is no bar for this warrantie began by disseisin And if in the first case the son doth enter in the life time of the father upon the land he doth avoid the warrantie If the father bee tenant for life the remainder to the next heire Co. 1. 66. male of the father and to the heires males of the body of such next heire male and the father makes a feoffment to I S with warrantie and dieth it seems this warrantie is a good bar to the heir and in this case the heir cannot enter in the life time of his father for he cannot be heire male unto his father untill his fathers death If tenant for life make a feoffement with warrantie or be disseised Co. super Litt. 366. 365. Co. 1. 67. Stat. Glouâ— ch 〈◊〉 6. Litt. Sect. 724 725. and release with warrantie and he in reversion being heir to the tenant for life doth not enter but suffer the lessee for life to die and thereby the warrantie to fall and descend upon him in this case this warrantie generally is a bar without any
assets But if hee that doth so alien c. bee tenant by the courtesie this is no barre to the heire without assets in fee simple from the tenant by the curtesie and then it is a barre for so much And if the heire for want of this assets at the time doth recover the land from his mother and after assets doth descend from the father in this case the tenant shall recover the same land of the mother againe And if she that doth so alien c. to be tenant for Stat. 11 H. 7. chap. 20. Litt. Sect. 727. Co. super Litt. 365. life of the inheritance or purchase of her deceased husband or given unto her by any of the Auncestors of her husband or by any other person seised to the use of her husband or of any of his Auncestors in this case her alienation release or confirmation with warrantie shall not binde the heire whether hee have assets or not But if a man convey lands to the use of himselfe Co. 3. 58. B his wife and the heirs of his body and they have issue C and the father dieth and C disseiseth his mother or getteth a feoffement from a disseisor and then suffereth a recovery with a single voucher and after the wife doth release to the recoverer with warrantie in this case the warrantie is a barre to the issue and not void by the Statute of 11 H. 7. If the husband that is seised of lands in the right of his wife levy Co. super Litt. 366. 381. Stat. Glouc. ch 6. Litt. Sect. 332. a fine or maketh a feoffment in fee with warranty and the wife dieth and then the husband dieth this warranty shall not binde the heire of the wife without assets of other land in fee simple from the father albeit he be not tenant by the courtesie but it is before her death that he doth make the estate and the warranty But a Fine levied by the husband and wife in this case is a good bar to the heir If tenant in taile that is in of another estate i. either by disseisin Co. 3. 62. 22 Ass pl. 37. 29 Ass pl. 34. Fine or by the feoffment of a disseisor doth suffer a common recovery and a collaterall Auncestor of the tenant in taile doth release with warrantie to the recoverer and after the recoverer doth make a feoffment to uses executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case albeit the estate of the land be transferred in the post before the descent of the warrantie yet it shall binde So if hee to whom the warrantie is made suffer a common recovery and after the Auncestor dieth But if tenant in dower enfeoffe a villain with warranty and the Lord of the villain enter into the land before the descent of the warrantie and after the woman dieth this warrantie shall not binde the right of the heir So if a collaterall warrantie be made to a bastard and his heirs and living the Auncestor the Bastard dieth without issue and the Lord by escheat doth enter and after the Auncestor dieth this warrantie shall not binde A collaterall warrantie may descend upon an issue in taile before the right descend and yet be good with this difference that Litt. Sect. 7 H. Co. super Litt. 388 the right be in esse in some of the Auncestors of the heir at the time of the descent of the warranty as if tenant in taile discontinue the taile in fee and the discontinuee is disseised and the brother of the tenant in taile releaseth all his right c. to the disseisor with warrantie and dieth without issue and the tenant in taile hath issue and dieth in this case the issue is barred But otherwise it is where the right is not in esse in the heir or any of his Auncestors at the time of the fall of the warrantie as if Lord and tenant be and the renant make a feoffment in fee with warrantie and after the feoffee doth purchase the Seigniory and after the tenant doth cease in this case the Lord shall have a Cessavit for a warrantie doth never bar any right that doth commence after the warrantie If the case be so that if no such warranty had beene made by Litt. Sect. 703. 711. 8. What shall be said a lineall warranty And how such a warranty shall barre the father or other Auncestor the right of the lands or tenements so warranted had or might have descended or come from the same Auncestor and that from and by him that made the same warranty such a warrantie is a lineall warrantie As if a man bee seised in fee of land and make a feoffment of it to another and binde him and his heires to warrant the land and hath issue and die and the warrantie doth descend upon the issue this is a lineall warrantie for that if none such had been Co. super Litt. 371. the right of the land had descended to him as heire to his father and he must have made his descent by him And if there be grandfather father and son and the grandfather be disseised and the father release to the disseisor being in possession with warranty c. and dieth and after the grandfather dieth this is a lineall warrantie to the son and albeit in this case the warrantie descend before the right yet it is a good bar And if there be two brothers Litt. Sect. 707. and the father is disseised and the eldest brother doth release with warranty and die without issue and after the father dieth and the warrantie doth descend to the younger sonne this is a lineall warrantie to him And if lands be given to A for life Co. 1. 66 67. the remainder to his right heires and hee doth make a feoffment with warrantie and die this is but a lineall warrantie And if two parcenours be and the eldest enter into all the land to her owne use and then doth make a feoffment with warrantie and dieth without issue this as to her owne part is a lineall warrantie but as to her sisters part is a collaterall warrantie And in every Co. 8. 52. New Terms of the Law tit Warrantie case where one doth demand an estate taile if any Auncestor of the issue in taile whether he had possession of the land or not hath made a warrantie and if the issue that were to bring a writ of Formedon may or might have by possibility by some matter that might have been done conveyed to himself a title by â—orce of the gift by him that made the warrantie this is a lineall warrantie As if a man be seised of land of an estate taile to him and the heirs of his body begotten and make a feoffment of it and bind him and his heirs to warrant it and hath issue and dieth this warrantie descending upon the issue is a lineall warrantie And if lands Litt.
Sect. 719. be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the donee doth make a feoffment with warrantie and hath issue a sonne and a daughter and dieth this warrantie is lineall to the sonne and if the sonne die without issue male it is a lineall warrantie from the father to the daughter But if the brother in his life time release to the discontinuee c. with warrantie c. and after dieth without issue this is a collaterall warranty to the daughter Litt. Sect. 714. If lands bee given to the husband and wife and the heires of their two bodies engendred and they have issue and the husband discontinue and die and after the wife doth release with warrantie and die this is a lineall warrantie And if lands be given to a Co. super Litt. 375. man and a woman unmaried and the heirs of their two bodies and they intermary and are disseised and the husband doth release with warrantie and dieth and after the wife dieth this is a lineall warrantie to the issue for all the land And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue and the middle brother doth release with warrantie and die without issue and after the father dieth and after the elder brother dieth without issue and after the father dieth and after the elder brother dieth without issue so that the warrantie doth descend to the younger brother this is a â—neall warrantie to him And if a father give land to his eldest son and the heirs males of his body c. the remainder to the second sonne c. if the eldest son alien in fee with warrantie c. and hath issue female and dieth without issue male this is a lineall warrantie to the second sonne And in all these cases of a lineall warrantie if Litt. Sect. 711 712. Doct. St. 152 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple it is a barre without any assets for the rule is That as to him that demandeth fee simple by any of his Auncestors he shall bee barred and bound by a lineall warrantie that doth descend upon him unlesse hee bee restrained by some Statute But it doth not binde the right of an estate in fee taile without assets for in that case the rule is That as to him that demandeth fee taile by writ of Formedon in the Descendor he shal not bee barred by a lineall warrantie unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie and then it is a barre for so much onely as doth descend to him no more And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die in this case the issue of that issue is not barred by this warrantie and assets But if the issue to whom the warrantie doth descend bring his writ of Formedon and is barred by judgement by reason of the warrantie and assets in this case albeit he alien the assets afterwards yet the estate taile is barred for ever If tenant for life do alien in fee with warrantie or be disseised Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty And how such a warranty shall bar release to the disseisor with warrantie and die and the warrantie descend on him in reversion or remainder this is a collaterall warrantie So if the lessee for life be disseised and a collaterall Auncestor of him in reversion release with warrantie and die and the warrantie descend on him in reversion this is a collaterall warrantie for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. St. 152. land And if a man seised of lands in fee have issue two sonnes and the father dieth and the younger sonne doth enter and doth alien the land with warrantie and die without issue this is now a collaterall warrantie that is descended on the elder brother And if a sonne bee disseised of his own land and bring an 21 H. 7. 10. Assise and after the father doth release to the disseâ—sor with warranty and dieth this warrantie that doth descend to the sonne is a collaterall warrantie And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne and after he doth make a feoffment wich warrantie and die before the entrie of his sonne so that the warrantie doth descend this is a collaterall warrantie If there bee Litt. Sect. 707. father and two sonnes and the father is disseised and the younger sonne doth release wiâ—h warrantie to the disseisor and die without issue and then the father dieth in this case the warrantie now descended is a collaterall warrantie If a lease be made Co. super Litt. 388. for life to the father the remainder to his next heir and the father is disseised and doth release with warrantie and dieth this is a collaterall warrantie to the heire And if the husband discontinue the right of his wife and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die and after the husband dieth this is a collaterall warranty and a bar to her And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow 234. Kelw. 78. writ of Formedon if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty this is a collaterall warranty as if tenant in taile discontinue the taile and die having issue and the uncle of the issue doth release with warranty to the discontinuee and die without issue so that the warranty doth descend on the issue in taile this is a collaterall warranty So if such a discontinuee make a feoffment in fee or be disseised and the uncle release with warranty to the disseisor or feoffee and die without issue and the warranty doth descend on the issue this is a collaterall warranty If a tenant in taile have Litt. Sect. 708. three sons and discontinue the tail in fee and the middle brother doth release to the discontinuee with warranty and after the tenant in taile dieth this is a collaterall warranty to the elder brother If one have issue three sonnes and giveth land to the eldest Litt. Sect. 716. and the heirs of his body and for want of such issue to the middle and the heirs of his body the remainder to the third and the heires of his body and the eldest doth discontinue the
right of the wife is saved so as she makes her claime c. within five years after her husbands death d Dier 354 So if husband and wife tenants in speciall taile have issue and the wife die and the husband marry another wife and have issue and levy a fine Sur cognisance de droit come ceo c. and take backe by the same fine an estate in speciall taile the remainder over c. and die the issue by the first wife is barred e Co. 3. 90. So if tenant in taile be disseised or make a feoffment in fee and after levie a fine with proclamations to the disseisor or to a stranger the issues in taile are hereby barred for ever the continuance of the possession in a nother notwithstanding f Co. super Lit. 372. So if a gift be made to the eldest sonne and the heires of his body the remainder to the father the heires of his body and the father dyeth and the eldest sonne levy a fine with proclamations and dyeth without issue this shall barre the second sonne for ever for the remainder descended to the eldest g Cûria trin 21 Jac. Co. E So if lands be given to an eldest sonne and the heires of the body of his father the father being then dead and he levy a fine of this land this will barre the younger brother h Dier 3. But if the issue in taile doe not make his title by him that did levy the fine there the fine will not barre and therefore if my father be tenant in taile and his brother disseise him and levy a fine and he and my father dye this fine shall not barre me as issue in taile because I doe not make my title to the land by him but if I suffer five years to passe and doe not make my claime c. by this meanes I may be barred by the fine i Plow 435. And if the fine be levied of another thing then the thing it selfe entailed As if the tenant in taile grant by fine a Rent Common or the like out of the land intailed this fine will not barre the issue So if a Rent be entailed and the tenant in taile of the Rent disseise the terre-tenant of the land out of which the rent doth issue and then levy a fine of the land this is no barre to the issue of the Rent 2. Albeit the fine be a double fine 2 Co. 76. 3. 85. super Lit. 353. Bio fines 118. Dier 279. with a grant and render yet it is within these Statutes and will barre the issue in taile as well as a single fine so as the grant and render be of the land it selfe and not of any profit apprender out of it And therefore if husband and wife be tenants in speciall taile and they levy a fine with proclamations and the Conusee grant and render the land to them and their heires this fine will barre the issue in taile And if tenant in taile joyne with I. S. and levy a fine to a stranger and the stranger doth grant and render the land againe to I. S. for years and to the tenant in taile in fee afterwards the issue in taile is barred by this fine So if there be tenant for life the Remainder in taile and he in remainder in taile accept of a fine from a stranger and grant and render to the stranger againe for years with a remainder over hereby the issue in taile is bound k Plow 435. If tenant in taile accept of a fine of the land entailed from a stranger and then grant and render a Rent out of the land to the stranger by the same fine this will not bind the issue in taile to pay the same Rent l Dier 117. If tenant in taile make a feoffement on Condition and die having two sisters inheritable to the taile and one of them levy a fine with proclamations sur Release to the feoffee of the whole in this case it is doubted whether the other sister be barred of her halfe or not 3. Albeit the tenant in 3 Co. 3. 86. 87. 1 in Shelleys Case taile die before all the proclamations be finished yet when they be finished as they may be after his death the issue in taile are bound by the fine for howsoever by the death of the tenant in taile the right of the estate taile doth descend to the issue yet when the proclamations are passed this right that doth descend is bound by the Statutes and the issue cannot by any claime c. save the right of the estate taile that doth descend unto him 4. Albeit the 4 Co. 3. 84. 91. issue in taile be within age out of the Realme under Coverture non compos mentis or in prison at the time of the fine levied and the proclamations passed yet the estate taile is barred by the fine And therefore if A. be tenant for life of land the remainder to B. in taile the reversion to B. and his heires expectant and B. levy a fine to C. and his heires and hath issue and die before all the proclamations are passed the issue in taile being then out of the Realme the proclamations are made and after the issue in taile cometh into the Realme and claimeth the remainder in taile upon the land in this case the estate taile is barred for ever 5. These Statutes doe extend to fines levied by tenant in taile by 5 Co. 3. 90. Dier 279. Plow 435. Conclusion and the issue shall be bound by the fine of their Ancestor unto whom they are privy in estate and bloud albeit partes finis nihil habuerunt tempore finis And therefore if the issue in taile in the life of his Ancestor when he hath onely a possibility As if there be grandfather father and sonne and the grandfather be tenant in taile and the father levy a fine of the land before the grandfathers death and then the grandfather dye before the father and after the father dye in this case the issue is barred by this fine †Curia Trin 21. Jac. Com. B. Godfry Wades case Dier 48. so also if the grandfather survive the father But in case of a collaterall descent if the collaterall Ancestor die in the life time of his father without issue this fine is no barre but if he survive his father contra So if lands be given to the grandfather and his wife in speciall taile and the grandfather dieth and the father doth disseise the grandmother and doth levy a fine with proclamations the grandmother dieth and then the father dieth in this case the sonne is barred m Co. 3. 50 51. 9. 140. So if lands be conveyed in taile to a woman for her Jointure within the Statute of 11 H. 7. cap. 20. and whiles shee liveth the issue in taile doth levy a fine of the land by this the issues inheritable to the estate taile are barred for ever
n Plow 434 435. So if tenant in taile make a feoffement or be disseised and after levy a fine with proclamations for a stranger hereby his issues are barred for ever o Curia 21. Iac. Co. B. So if tenant in taile die and his issue before his entry having a freehold in law only doth levy a fine with proclamations this shall be a barre to his issues and to his collaterall heires and brothers of the halfe bloud p Idem So if a tenant in taile have foure daughters and one of them levy a fine in the life of the father this will be a barre to her issue for the fourth part of the land q Co. 3. 50 51. 9. 140. But in these cases before and such like where the issue in taile doth levy a fine in the life time of the tenant in taile the tenant in taile himselfe may after levy a fine of the land and thereby barre his issue and the Conusee also to whom his issue hath levied a fine and therefore in all these cases it is supposed that the tenant in taile doth dye and suffer the right to descend to his issue t Co. 10. 50. 9. 141. 3. 50 51. If lands be given by will to one when he shall come to his age of twenty four years to hold to him and the heires of his body and he after his age of twenty one years levy a fine of this land with proclamations this is a barre to the issue in taile If a disseisor make a gift in taile the donee make a feoffment to A. and after levy a fine with proclamations to B. that hath nothing in the land this fine will barre the issues in taile and they shall not avoid it by pleading that partes finis nihil habuerunt c. but it is no barre to the disseisee for he may avoid it by this plea when he will s Co. 3. 84. And à fortiori therefore if a fine be levied by the tenant in taile that hath only an estate of freehold in remainder or reversion is good as if A. be tenant for life the remainder to B. in taile and B. levy a fine albeit this be no discontinuance yet it is a barre to the estate Discontinuance taile t Trin. 21 Iac. Co B. Will. Godfrey versus Wades case But if tenant in taile have issue a sonne and a daughter and the sonne living the tenant in taile levy a fine and dye without issue and then the tenant in taile dieth by this the daughter and the estate taile is not barred So if the younger sonne levy a fine in the life of the father and then the tenant in taile dye this is no barre to the elder sonne So if lands be given to a man and the heires females of his body and he hath a sonne and a daughter and the sonne doth levy a fine of the land this is no barre to the daughter So if tenant in taile have a daughter his wife being with childe of a sonne and the daughter levy a fine and after the sonne is borne this fine shall not barre the sonne for these howbeit they be privies and heires to the bloud yet are not privies and heires to the estate 6. Albeit the estate passed by the fine be afterwards 〈◊〉 J Co. 3. 91. before all the proclamations had avoided yet the issue in taile is barred by it And therefore if tenant in taile discontinue in fee and after disseise the discontinuee and levy a fine with proclamations to a stranger and take an estate backe by Render in the same fine and the discontinuee before all the proclamations passe enter and claime and so avoid the fine yet hereby the estate taile is barred a Per Popham et Fenner Iust M. 39. 40. Eliz. B. R. And if tenant in taile infeoffe the issue in taile and after disseise him and levy a fine the issue enter and after the proclamations passe and after the issue in taile doth infeoffe the tenant in taile which levied the fine and dyeth it seemes this fine shall barre the issues in taile 7. This is a barre to the estate taile 7 Co. 1. 76. super Lit. 372. and to the issues onely and is no barre to him in remainder or reversion and therefore when the estate taile is spent this barre is at an end And therefore if an estate be limited to A. and B. his wife and the heires males of the body of A. the remainder to C. and A. and B. have issue and A. dye and B. and her issue or her issue alone levy a fine this will barre the issues of the issues whiles there be any but they faile it will not barre C. in remainder except he suffer five years to passe and so be barred by his non claime So if tenant for life and he that is next in the remainder in taile joyne in a fine this is a good barre to the issues in taile for ever as long as that estate taile shall continue but not to him that is next in remainder nor to any other that shall come in of any remainder in taile or in fee nor to him in reversion x Co. 10. 96. 9 Iac. B. R. If lands be given to A. and the heires males of his body the remainder to B. and the heires males of his body the remainder to the right heires of A. and A. doth bargain and sell this land by deed indented and inrolled to I. S. and his heires and after levy a fine of it sur Conusance de droit come ceo c. to him and his heires by this the remainder to B. is Discontinuance not discontinued but it is a barre to the estate taile by the Statutes and causeth the estate of the bargainee to last so long as the tenant in taile hath issues of his body but if the fine had been before the bargaine and sale it had been a discontinuance of the remainder but in neither case a barre to him in remainder unlesse he suffer himselfe to be barred by his non-claime within five yeares after his remainder happen to come in possession 8. If there be 8 Co. super Lit. 372 tenant in taile the remainder to him in taile and the tenant in taile levie a fine of this land hereby both his estates are barred Et sic de similibus y y Bro. Fines 121. Co. 6. 55. Dyer 4. Co. super Lit. 372. Co. 8. 17. 78. But all this notwithstanding If lands be conveyed to a woman in taile for her joynture within the Statute of 11 H. 7. chap. 20. and she levie a fine of this land this will not barre the issues in taile Or if lands be given in taile to any subject by the Kings own gift or provision and the tenant in taile levie a fine this fine shall not bind the issues in taile nor the King but others it will barre for these fines are
of the land whereof the recovery is to be had for an estate for years or any such like estate will not hinder the suffering of a recovery there the course is to get a Conditionall Surrender from the tenant for life of his estate to him in reversion or remainder to the end that he may be perfect tenant of the Inheritance and then the writ of entry may be brought and the recovery had against him for if a writ of entry be brought against a stranger and he vouch the tenant in taile in possession of the land and so a recovery is had or if there be tenant for life of land the remainder or reversion to another in taile or in fee and a stranger doth bring a writ of entry against him in the remainder or reversion or against a stranger who doth vouch him and so a recovery is had these recoveries are not good And yet if the writ be brought against the tenant of the land and a stranger that hath nothing in the land together and so a recovery be had this recovery is good enough And if a disseisor make a gift in taile of the land to another and the writ is brought against him and he vouch the disseisee and he vouch the common vouchee this is a good recovery 5. That it be in such a case as is not prohibited Stat. 34. H. 8. ca. 20. Co. super Lit. 37â— 2. 5. 16. Co. 8. 77 78. by some Statute law for if the King give any of his owne land Prerogative whereof he is seised or cause or procure another in consideration of money or other land to give the lands whereof he is seised in taile to any of his subjects or servants in recompence of their service or the like the remainder to the King in fee simple or fee taile such estates in taile cannot be barred by a common recovery And therefore if such a tenant in taile shall suffer a recovery of such land it is voyd and it will neither barre the issues in taile nor any of them in remainder nor the King But if the King make such a gift in taile keeping the reversion to himselfe and after doth grant the reversion to another in this case tenant in taile may suffer a recovery and bar the estate taile and the reversion also And where a subject by the Kings provision doth make such a gift in taile and then doth grant the remainder to the King for life or years only in this case the estate taile temainders and reversion also may be barred by a common recovery So in other cases where a subject doth make a gift in taile the remainder to the King in fee this estate taile may be barred by a common recovery And therefore if there be tenant in taile the remainder or reversion in fee to another and he in remainder or reversion by deed indented and inrolled doth bargaine and sell his remainder or reversion in fee to the King or if one covenant to stand seised to divers uses in taile the remainder to the King in fee in these cases the estates and the reversion and remainders depending thereupon may be barred by a recovery So if a man make a gift in taile the remainder in fee and he in the remainder doth grant his remainder to another for life the remainder to the King in fee on condition the estate shall be voyd upon the tender of 20 l. in this case the estate taile and the reversion also and condition thereupon may be barred So if the Duke of Lancaster had made a gift in taile and the reversion had descended to the King this estate taile might have been barred by a recovery So if Prince H. sonne of H. 7. had made a gift in tail the remainder to H. 7. in fee which remainder by the death of H. 7. had descended to H. 8. in this case the tenant in taile might have barred the estate taile by a recovery And yet if the King make a gift in taile the remainder in taile or grant the reversion in taile in these cases a common recovery may not be suffered to barre the entaile remainder or reversion And if the husband for the advancement of his wife in Jointure and the preferment Stat. 〈◊〉 H. 7. cap. 20. Co. 3. 58. 61. 59. of the heires of their two bodies make an estate in taile to him and his wife and the heires of their two bodies and the wife after her husbands death alone by her selfe or with any other husband suffer a common recovery of the land whereof this estate is made this recovery will not barre the estate taile But if in this case the recovery be suffered by the heire in taile or by the heire and his Mother together it is a good recovery And therefore if A be seised of land in fee and he make a feoffement in fee to the intent that the feoffee shall reconvey it to him and his wife and the heires males of his body and this is done accordingly and they have issue a sonne and she surrender or make a forfeiture and he enter and suffer a recovery this is a good recovery and barre to the esate taile or if the writ be brought against the mother and she vouch the heire in taile and so a recovery is had this recovery will barre the estate taile And howsoever at the Common Stat. 14 Eliz. cap. 8. Co. 1. 15. 62. â—0 43. 45. 3. 6. Law a recovery against a tenant for life with a voucher upon a lawfull warranty and a recovery in value was a barre to him in remainder or reversion and there was no remedy in this case yet at this day it is otherwise And therefore if tenant in taile after possibility of issue extinct tenant by the courtesie or any other tenant for life doe suffer their lands to be recovered from them by covin and agreement either as immediate tenants or as vouchees upon feigned titles without the assent and to the prejudice of him in remainder or reversion such recoveries are voyd and will not Forfeiture barre the remainders or reversions but are forfeitures of the estates of such tenants for life Insomuch that if tenant for life be made tenant in fait to the writ or tenant in law upon the voucher and so a recovery be had as if tenant for life make a lease for years and the lessee for years doth make a feoffement in fee and the feoffee doth suffer a common recovery in which the tenant for life is vouched and he vouch the common vouchee these recoveries will not bind the reversions or remainders But there is no provision made at this day to preserve the reversion or remainder expectant upon an estate taile nor to avoyd a recovery of the tenant for life where he in the next remainder is agreeing and assenting to it And therefore if there be tenant for life the remainder to A in taile the remainder to B in
So if one give all his goods and chattels to his executor in his life time by deed of gift this shall be said to be fraudulent and shall be void as to Creditors And albeit those to whom the deed of fraud is made know nothing of the fraudy yet is the deed fraudulent in that case also as well as where they are privie to it If after a Commission of Bankrupts be sued out the debtor Co. 2. 25. make a deed of gift of all his goods to one of his Creditors in satisfaction of his debt in this case this deed shall be void as against the rest of the Creditors and as to the Commissioners and they may order it with the rest of the estate notwithstanding But if A bonâ fide and for valuable consideration mortgage his land By the two Judges of Assise Aug. 5. Car. in Com. South Lady Lamberts case whereof he hath a term of years to B upon condition that if he repay the mony to B a yeare after that he shall reenter and B doth covenant with A that he shall take the profits of it untill that time c. A doth not pay the money and B hoping that he will pay it in time doth suffer him to continue in possession and take the profits of it two or three years after and in the interim judgment is had against A upon a bond and execution awarded in this case execution shall not be made of this lease for this deed of mortgage shal not be said to be fraudulent as to the Creditor for when a conveyance is not fraudulent at the time of the making of it it shall never be said to be fraudulent for any matter ex post facto If A be seised of the fifth part of the Manor of B and B of the Mich. 19 Jac. Co. B. Miller Potscase 6th part and M cometh to A to buy his part and after M saith to A my Counsell tells me I cannot safely buy of you unlesse B joyn and after B doth grant a rent charge of 15l per annum out of this Manor to C her sonne and the heires of his body in consideration of naturall affection and this was about 1o. Jac. C being then but about three years old with proviso that if D whom B did then intend to mary grant to the said C the like rent of 15l and for the like estate out of 20l. land by the yeare of the land of B then the said grant to be void and after the said A bought the 6th part of the said Manor of B and D her husband being intermaried and after A B and D her husband joyne in the grant to M and in this case it was ruled that this grant to C was not fraudulent and void If one doth hold his land to pay a hariot Co. 10. 56 57. at the death of every one that dyeth tenant in fee simple and he infeoffe his sonne and heire in consideration of naturall affection and mariage to be had between the sonne and I and the son to prevent the Dower of his intended wife during his fathers life makes a lease for forty yeares unto his father if his father live so long and afterwards the mariage is had the father payeth the rent the sonne doth suit of Court for the land and after the father dieth in this case this lease shall not be said to be fraudulent as to the Lord to deceive him of his hariot because it was made to another Stat. 52 H. 3. c. 9. 34 H. 8. ch 5. Co. 6. 76. Lit. Bro. Sect. 59. Plow 49. Co. 8. 164. 9. 129. end A deed also made to defeate the King or other Lord of his 3. To deceive Lords of their wardships c wardship shall be void as to a third part of the thing conveyed And therefore if any tenant that holdeth of the King or any other Lord make a feoffment or other conveyance of his land to defeate and defraud the King or Lord of his wardship primer seisin or any other benefit appointed and preserved for the Lord by the Statutes of 32 and 34 H. 8. shall be void as to a third part thereof against the King or other Lord who shall notwithstanding have their wardship and other benefits as if none such were made As if such a tenant by deed enfeoffe his lineall or collaterall heire within age or make a lease for life the remainder to his heire or make a gift in taile the remainder in fee to his heire or make a feoffment on condition that he shall reinfeoffe his heire at his full age or make a feoffment for the paiment of his debts preferment of his wife and children or infeoffe another to the intent that he shall take the profits till he have an heire male and then to reinfeoffe him all these are fraudulent and void as to a third part of the land and as against the King or other Lord in respect of the benefit they are to have of and by the land But no conveyance in these cases shall be said to be fraudulent and so void for two parts of the land And if one make a feoffment of land to two whereof his heire is one and their heires for mony or other valuable consideration this shall not be said to be a fraudulent conveyance of any part So if such a joyntenant make a feoffment of his moity to a stranger * Dyer 9. Co. 2. 94. And in cases where the feoffment is fraudulent for a third part as before if the feoffee dye or make a feoffment over bonâ fide before the death of the Ancestor in these cases the deed is become good again and the collusion gone If a Dyer 268. Co. 10. 57. man for feare of debts convey his lands to friends with condition that upon payment of 10l they shall convey it to those whom he shall appoint in this case the conveyance shall not be said to be fraudulent as to the King or other Lord for it was done to another end and therefore it is a good conveyance against all men but the Creditors Where deeds shall be void in part or in all for want of inrollment atturnement livery of seisin or the like see afterwards If a deed that is well and sufficiently made in his Creation shall Co. 11. 27. 5. 119. Dyer 59. 261. Perk. Sect. 123. 135. Kelw. 162. Fitz. Release 27. 14 H. 8. 25. Bro. Fait 9. 6 Where a deed good in his creation may become void by matter ex post facto And what will make such a deed void or not 1. By Rasure be afterwards altered by rasure interlining addition drawing a line through the words though they be still legible or by writing new letters upon the old in any materiall place or part of it as if it be in a deed of grant in the name of the grantor grantee or in the thing granted or in the limitation of
body or the or his heires females of his body by this the grantee hath an estate taile So if ands be given to a man to have and to hold to him and the heires males or to him and the heires females of his body begotten in both these cases it is an estate tail If lands be given to a man his his wife to have and to hold to them Lit. idem Co. 1. 140. Co. super Lit. 20. Co. 7. 41. and the heires males or to them and the heires females of their two bodies begotten by this they both have an estate taile And if lands be given to them the heires males or heires females of the body of the husband begotten on the wife by this he hath an estate taile his wife an estate for life only And if lands be given to A to have and to hold to him and his heires on the body of B begotten by this A hath an estate taile and B hath nothing So if lands be given to a man and his wife to have and to hold unto them and the heires he shall beget on her body by this they have an estate taile in them both If lands be given to a man and his wife and the heirs of the body of the husband by this the husband hath an estate in generall taile and the wife but an estate for life If lands be given to him to have and to hold to him and his heires he shall beget on the body of his wife by this he hath an estate taile and she no estate at all If one give his land to his daughter or Cousin in Frankmariage Lit. Sect. 17. by this they have each of them an estate taile without any word of heires or heires of body c. If one give lands to B and his heires to have and to hold to B Co. super Lit. 21. Co. 7. 41. 5 H. 5 6. and his heires if B have heires of his body and if he die without heires of his body that it shall revert to the donor by this B hath an estate taile So if one give lands to B and his heires if he have issue of his body by this he hath an estate taile So if lands be given to B to have and to hold to him and his heires provided that if he die without heire of his body that the land shall revert So if lands be given to A B uxori ejus hered eorum aliis hered ipsius A si dict'hered de dict' A B exeunt ' obierunt sine herede de se c. by this they have an estate taile And so in all such like cases where after a limitation of a feesimple these or such like words are added viz. that if he die without heires of his body the land shall revert for in all these cases the habendum is construed to be a limitation or declaration what heires are meant before If lands be given to A and B a young man and maid unmaried to have and to hold to them and the heires of their two bodies Co. super Lit. 26. Plow 135. by this each of them hath an estate taile and if they mary their heires may inherite it If lands bee given to the sonne to have and to hold to him and Co. super Lit. 7. Co. 8. 87. Ass Pl. 47. 5 Ass 14. his heires of the body of his Father by this the sonne hath a fee-simple But if the words bee to have and to hold to him and the heires of the body of the Father engendred by this it is an estate taile in a deed as it is in a Will And if the Father be dead the Law Will. is so also but it seems the sonne shall have by this only an estate for life except he be issue in taile to his father per formam doni So if there bee grandfather father and sonne and the father dieth and lands be given to the son to have and to hold to him and the heires of the body of the grandfather this is an estate taile in the sonne but neither the father nor the grandfather have either of them any estate in these cases If lands be given to I S and the heires of the 12 H. 4. 1. body of his wife being dead begotten by this I S hath an estate taile If one grant lands to I S to have and to hold to him and the Co. super Lit. 385. heires of his body issuing the remainder to I D and his heires in forma predicta by this I S and I D after him have each of them an estate taile If one grant lands to A to have and to hold to him for life the Co. 2. 91 super Lit. 22. 39. Ass Plow 20. remainder to the first sonne of A and the heires males of the body of that first sonne by this the first sonne hath an estate in taile and A his father but an estate for life only But if lands be granted to A for life the remainder to the heires of the body of A by this A hath an estate taile in him And if lands be given to a man and his wife to have and to hold to them and one heire of their bodies lawfully begotten and to one heire of the body of that heire by this there is an estate taile made yet so as it shall last only during the lives of those two heires If one grant lands to another to have and to hold to him and to Co. super Lit. 26. his heires of the body of such a woman lawfully begotten by this he shall have an estate taile for begotten shall be intended by the donee on that woman If there be husband and wife and they have issue a sonne and Co. super Lit. 26. daughter and lands are given to the wife to have and to hold to her and the heires of her late husband on her body begotten by this the wife hath an estate for life and the son an estate in taile and if he die without issue it shall goe to his daughter per formam doni If lands be granted to the husband of A and wife of B to have Co. super Lit. 20. and to hold to them and the heires of their two bodies by this they have each of them an estate in taile in them for there is a possibility that one husband and wife may dye and then the other husband and wife may intermary If there be father and sonne and lands are given to the father 12 H. 4. 3. Dyer 247. to have and to hold to him and the heires of the body of his son by this the sonne hath an estate taile but the father as it seemes but an estate for life If lands be given to the mother for life the remainder to her son Lit. Sect. 352. and the heires of the body of his father on her begotten the father being dead by this the son
any estate in this case I S hath an estate for life only If lands be granted to A and B to have and to hold to them Dier 186. for their lives to the use of C for his life by this C hath an estate for his life if A and B live so long If a tenant in taile grant totum statum suum by this the grantee Lit. Sect. 613. Co. 1. 53. super Lit. 345. Plow 562. 162. Co. super Lit. 24. hath an estate for the life of the grantor and no longer And if a lessee for life grant all his estate hereby his estate for life doth passe for this is as much as he can lawfully grant If a man have a sonne and a daughter and die and lands be granted to the daughter and the heires females of the body of the father it seemes by this she hath only an estate for life If one grant land to another to have and to hold to her whiles Co. super Lit. 42. 234 235. she shall live sole or during her widowhood or so long as she shall behave her selfe well or so long as he shall dwell in such a house or so long as she pay 10 l. yearly or so long as the coverture between her and her husband shall continue or one grant lands to a man to have and to hold unto him untill he shall be promoted to a Benefice or the like in all these cases if livery of seisin be made according to the deed or if the grant be of such a thing whereof no livery is requisite the grantee hath an estate for his life and no more and that determinable also If one grant lands to I S. to have and to hold to him for life Co. super Lit. 183. 42. Plow 161. F. N. B. 168. and doth not say for whose life this regularly shall be taken for the life of I S the lessee and not for the life of the lessor But if the lessor himselfe have but an estate for life in the lands granted then the lease shall be construed to be and endure during that life only by which the lessor did hold to prevent a forfeiture And if he that doth make the lease be tenant in taile of the land this shall be taken to be a lease for the life of the lessor And if a tenant for life of land make a lease for years of it and then grant his reversion by the name of a reversion to another To have and to hold to him and his heires by this he hath only an estate for the life of the grantor and no more So if tenant in taile of land grant it to one for years and after grant his reversion to another To have and to hold to him and his heires this shall be construed to be an estate for the life of the tenant in taile and no longer and the atturnement of the tenants in these cases will not alter the cases And so it is in case of a Release also as if tenant in taile doth release to B being lessee for years of the land all his right to the land this shall be taken to enure but for the life of the tenant in taile and no longer as if a man retaine a servant and say not how long this shall be taken for a year Constructio legis non facit injuriam If one grant to I S that if he be not paid yearly for his life Co. super Lit. 147. Co. 8. 85. 40 s. that he shall distraine in the land of the grantor for it by this I S hath an estate for life in the rent And if a man by his deed grant a rent of 10 l. issuing out of all his land quarterly at the usuall feasts this is an estate for life of the grantee If one grant lands to I S and I D. To have and to hold to them Co. 5. 9. 11. 3. during their lives omitting these words and the longest liver of them by this notwithstanding they shall hold it during the life of the longest liver of them And if lands be granted to A To have and to hold to him during the lives of B C and D without any more words by this A hath an estate during all their lives and during the life of the longest liver of them * 38 Eliz. B. R. in the case of Ros Adwick And if lands be granted to A To have and to hold to him during his life and during the lives of B and C by this he hath a lease for his owne life and the lives of B and C and the longest liver of them But if a lease be made to I S of land to have and to hold to him during the time that A and B shall be Justices of Peace or during the time that A and B shall be of the Inner Temple or the like in these cases the â—ailer of one doth determine the estate †Adjudged B. R. 8 Eliz. Hobaâ—t Wisemores case And if a lease be made to B only To have and to hold to him and C for their lives by this B hath an estate for his owne life only and no more and C hath nothing at all And here by the way let it be observed in these and such like cases where lands are granted to one man to Co. super Lit. 41. 239. 388. Plow 556. 28. Dier 328. 321. 264. Co. 10. 98. Occupant have and to hold to him or to him and his assignes or to him his executors administrators and assignes during the life or during the lives of others and in most cases where a man is tenant pur auter vie i. for the life or lives of another or others if the tenant pur auter vie in possession die his estate shall not goe to his heires executors or administrators unlesse they can first get into possession after his death but he that can first get into the possession of the land after the death of the tenant pur auter vie shall have it for his life and after his death then he that can first get into the possession againe c. And therefore if the land were let by the tenant pur auter vie at the time of his death to any under tenant for years or for one year or at will and this undertenant be in possession at the time of the death of the tenant pur auter vie this undertenant shall have it for his life if the life or lives by which it is held so long live for the rule in this case is occupanti conceditur Et capiat qui capere potest And this estate is called an occupancy and he that hath it an occupant To prevent which mischiefe the lessee must take care when he takes his lease to have it made to him and his heires during the life or lives of him or them by whom it is held for in this case after his death his heire and none other shall
rent out of the land generally without any limitation this shall be construed to enure for a grant of the rent so long as the estate of the grantor doth continue But if he grant a rent by expresse words for the life of the grantee by this the grantee shall have it for all the terme if he live so long If one grant lands to I S To have and to hold to him for life Co. super Lit. 218. reserving the first seven years a rose and if he will hold the land over that he shall pay a rent in money and no livery of seisin is made by this it seemes in certaine is made a lease for seven years untill the Condition be performed and then also it seemes it is a lease for no longer time And so perhaps it will be if livery of seisin be made If one grant a rent of 5 l. per annum unto I S To have and to Co. super Lit. 42. Plow 273. hold to him c. untill he shall receive 20 l. in this case he shall have a lease for foure years of this rent But if lands be granted to I S To have and to hold c. untill he shall receive 20 l. out of the profits of it in this case if livery of seisin be made the grantee hath an estate determinable upon the levying of the money and if no livery be made he hath no estate at all but at will If one make a lease for life and say that if the lessee within one Co. super Lit. 218. yeare pay not 20 s. that he shall have but a term for 2. years by this if he doth not pay the money he hath only a lease for 2. years albeit livery of seisin be made upon it If one make a lease to I S To have and to hold to him his executors Co. 9. 63. 60. c. for 10. years if I D shall live so long and I D is dead at the time when the lease is made in this case I S hath an absolute lease for 10. years If one grant lands to I S To have and to hold to him his executors Plow 273. Co. super Lit. 45. Dier 24. c. for 3. years and so from 3. years to 3. years during the life of I S or from 3. years to 3. years during the life of the lessee by this it seemes I S hath a lease for 6. years and no more And if one grant lands to I S To hold for 3. years and after the end of those 3. years for 3. other years and after the end of those 3. years for 3. other years during the life of the lessor by this it seemes I S hath a lease for 9. years and no more And yet if in these and such like cases where a lease is made from so many years to so many for the life of any person livery of seisin be made upon this deed secundum formam chartae this perhaps may be an estate for life If lands be granted To have and to hold from our Lady day pro termino unius Anni sic de uno Anno in unum Annum quamdiu 14 H. 8. 10. Co. 6. 35. 10. 106. ambabus partibus placuerit by this the grantee hath a lease for 3. years only in certain and afterwards a lease at will And if lands be granted to have and to hold from the Nativity of Christ next pro termino unius Anni et si in fine dict' unius Anni ambae partes placerent quod eadem presens dimissio foret renovata tunc habend premissa to the lessee c. ab post dictum festum Nativitatis Domini usque terminum trium Annorum extunc prox ' sequen ' by this the grantee hath a lease in certaine but for one year only and if the parties agree againe a lease for 3. years If one make a lease to I S To have and to hold to him for years Co. 6. 35. 21. H. 7. 38. and say not how many years by this the lessee hath a lease for 2. years and no more If one grant his land to I S To have and to hold to him untill Co. 3. 19. I D shall come to 21. years of age in this case if I D die before that time the lease is ended If a man possessed of a terme of years of land doth grant the land to another and his heirs this by construction will amoumt Co. 1. 44. 7 H. 4. 42. to a good grant of his interest If lands be granted to husband and wife and to I S To have Limitation of estates to divers persons Dier 263. and to hold to them and to the heires of the husband and I S by this the wife hath only an estate for life in a moity w th her husband and the husband and I S have the feesimple in Jointenancy to them and their heires Co. 8. 87. 10. 50. super Lit. â—5 Dier 145. If lands be granted to two brothers or two Sisters or to a brother or sister or to a father and sonne or any others To have and to hold to them and the heires of their bodies begotten by this they have joint estates for their lives so that the survivor of them will have the whole for his life and severall inheritances i. estates in generall taile by moities in common one with another And if lands be granted to two men and their wives and the heires of their bodies begotten in this case they have joint estates for life and afterwards the one husband and wife shall have the one moity and the other the other moity in common And and if lands be granted to a man and two women To have and to hold to them and the heires of their bodies by this they have each of them an estate taile in common with the other If lands be granted to husband and wife To have and to hold Lit. Sect. 27 28 29. Co. super Lit. 26. Dier 340. Co. 1. 100. to them and their heirs of their bodies issuing or in any such like manner by this the wife hath an estate taile as farre forth as the husband But if it be granted to them To have and to hold to them and the heires of the body of the husband or to the husband and wife and the heires of the husband which he shall have by his wife or in any such like manner by this the wife hath only an estate for life and the whole estate taile is in the husband So via versa if lands be granted to husband and wife and the heires of the wife upon her body begotten by the husband by this he hath an estate for his life only and his wife the whole estate taile And if lands be granted to the husband To have and to hold to him and the heires of his body on the body of his wife begotten or To have and to hold to him and
Co. super Litt. 223. to be contrary and that a condition to restrain the making of such leases is good for this power is not incident Dier 48. Co. 6. 43. to the estate but given to him collaterally by the Statute and Quilibet potest renunciare juri pro seintroducto But tota curia in Mary Portingtons case is against him If a man make a gift in tail to A the remainder to him and his heirs on condition that he shall not Co. super Litt. idem Dier 227. alien this condition as to the estate tail is good and void as to the other And therefore if an alienation be he shall defeat it onely as to the estate tail And if a man make a gift in tail on condition that Co. 6. 43. the donee or his heirs shall not alien this is a good condition to some intents and void to other and therefore if he make a feoffment in fee or any other estate by which the reversion is discontinued tortiously the donor shall enter otherwise if he suffer a common recovery And a gift in tail on condition that the tenant in tail shall not make a lease for his own life is not a good condition by Co. 6. 43. against Co. super Litt. 223. If one seised in fee of land and Co. 6. 43. 4. 84. super Litt. 223. make a lease of it for years or life on condition that the lessee shall not alien the land leased or any part thereof during the term or on condition that he shall not alien it or any part of it during the term without licence of the lessor these are good conditions So if one be seised in fee of a Manor and he make a lease of years of it to I S on condition that he shall not make voluntary estates by copy this is a good condition But in a feoffment in fee such a condition is repugnant and void And if one be possessed of a lease for years or of a house or of any other chattel reall or personall and he give or sell all his interest therein upon condition that the donee or vendee shall not alien the same this condition is void for repugnancy and the gift or sale is absolute If one make a feoffment of land in fee on condition that the feoffor Co. 2. 72. Dier 318. shall retain the land for twenty years without interruption it seems this is a good condition and not repugnant If I grant land to another for life if it shall please me so long to Dier 94. suffer him it seems this condition is repugnant and void If a feoffment be made of land in fee on condition that the feoffee Co. 10. 39. super Litt. 206. Plow 77. 133. 21 H. 7. 8. 8 H. 7. 10. Perk. Sect. 731. shall not enjoy the land or shall not take the profits of the land or on condition that the heire of the feoffee shall not inherit the land or condition that the feoffee shall not doe wast or condition that his wife shall not be endowed in all these and the like cases the condition is void as repugnant to the estate If a gift in tail be made on condition that the donee or his issues Co. 6. 41. 1. 84. super Litt. 224. shall not take the profits of the land or on condition that if the donee die his estate shall go unto another or on condition that their wives shall not be endowed or on condition that they shall not do wast or on condition that warranty and assets or a collaterall warranty shall not bar the issues in tail all these conditions are repugnant and void If lands be given or granted to two and their heirs on condition Co. 1. 84. that the survivor shal have the whole notwithstanding partition or on condition that the survivor shall not have the whole albeit there be no severance these conditions are repugnant and void If one make a lease for life on condition that the lessee shall not Perk. â—ol 141. doe fealty this condition is not good If lands be given to one and the heirs males of his body provided Co. super Litt. 204. that if he die without heirs females of his body that the donor shall reenter this condition is repugnant and void If one have land in possession or reversion and he grant a rent Co. super Litt. 146. 10 H. 7. 8. Co. 6. 41. 5 H. 7. 7. 7 H. 6. 44. Perk. Sect. 732. out of it on condition that the grant shall not charge the person of the grantor this is a good condition and not repugnant But if a man grant a bare annuity or grant a rent charge out of another mans land with such a condition or if one grant a rent charge on condition that the grantee shall not distrain nor charge the person of the grantor or if one grant a rent out of land on condition that the land shall not be charged with it all these conditions are repugnant and void So if two grant a rent charge out of land provided that it shall not extend to one of them this condition is repugnant and void If a man seised in fee of land make a lease for years rendring rent Perk. Sect. 733. and after the lessee makes a lease to the lessor of other land on condition that he shall not distrain for his rent in the former lease made to this lessee this is a good condition and not repugnant If one make a feoffment in fee or lease for life with warranty on Perk. Sect. 734. Dier 47. condition that the feoffee or lessee shall not vouch to warrant nor recover in value or if the lease be made without impeachment of wast on condition that if the lessee doe wast the lessor shall reenter these are good conditions and not repugnant All conditions annexed to estates being compulsory to compell a Co. super Litt. 223 224. 207. Perk. Sect. 722 723. Conditions against Law man to doe any thing that is in its nature good or indifferent or being restrictive to restrain or forbid the doing of any thing which in its nature is malum in se as to kill a man or the like or malum prohibitum being a thing forbidden by any Statute or the like all such conditions are good and may stand with the estates But if the matter of the condition tend to provoke or further the doing of some unlawful act or to restrain or forbid a man the doing of his duty the condition for the most part is void And therefore if lands be given or granted to a man upon condition that he shal kil a man or upon condition that he shal burn his neighbours house or upon condition that he shall forswear himself or upon condition that he shall save and keep harmlesse the grantor whatsoever he shall doe or that if hee doe not these things the grant shall bee void this condition is void
yet it seems it doth not restrain the power that the lessee hath by the law to take these things without assignement But if the lessee doe covenant that he will not cut any timber or fuell without the leave or without the assignement of the lessor this is a good covenant and doth restrain him for in this and such like cases the rules is Modus conventio vincunt legem If an obligee covenant with the obligor that he will not sue him Mich. 36 37 Eliz. Co. B. Adjudge Deaux versus Jefferies 21 H. 7. 23. Release upon the obligation untill Easter following this is a good covenant but no release or suspension of the debt * Perk. Sect. 69. If there be Lord and tenant of three acres of land white acre and two others and the Lord grant to the tenant by deed that he will not distrain in white acre for his rent or services this is a good covenant but doth not determine the Seigniory If one man grant a mill within his Manor covenant for him Fitz. Covenant 5. his heirs that there shall be no other mill set up within the Manor it seems this is a good covenant If one make a lease wherein are divers covenants to bee performed Fitz. Covenant 3. on the part of the lessee and after the lessee doth covenant that if any of the covenants be broken that the lessor shall enter upon the land demised and hold it untill the lessee make him amends for the damage done by the breach of the covenant it seems this is a good covenant and that the lessor may take advantage thereof accordingly If a man seised of land in fee covenant to stand seised of it to uses Plow 307 308. 21 H. 7. 18. 27 H. 8. 16. Finchesley 49. and no estate doth rise by the covenant yet this may bee good by way of covenant and give remedy to the covenantee in an action of covenant But with this difference If the covenant be future as where one doth covenant with another that in consideration of a mariage his lands shall descend remain or revert to his sonne and heire apparent and to the heires of his body on the body of his wife in this case the covenantee may have a writ of Covenant upon the covenant For if a covenant be present as that a man and his heirs shall from henceforth stand and bee seised to such and such uses and the uses will not arise by the Law in the case in this case no action of covenant will lie upon this covenant for this action will never lie upon any covenant but upon such a covenant as is either to doe a thing hereafter or that a thing is or hath heretofore beene done and not when it is for a thing present as when A doth covenant with B that his blacke horse shall be for ever after the horse of B this is no good covenant to give the horse to B or to give him an action of covenant for him but A may keep him still notwithstanding If one mortgage upon condition to reenter upon payment of an Agree 8. Car. hundred pound at a day and the mortgagee doth covenant that he will not take the profits of the land untill default of payment this is a good covenant and the mortgagee therefore may not meddle with the profits untill the day of payment come If one make a lease for years of land by the words Demise or 5. What shall be said a good covenant in Law upon which an action of covenant may be had And what not Co. 4. 80. 5. 17. Trin. 3 Jac. B. R. Stiles case Pas 7 Jac. B. R. Winsecombes case Grant and there is not contained in the lease any expresse covenant for the quiet enjoying of the land in this case the Law doth supply a covenant for the quiet enjoying of it against the lessor and all that come in under him by title during the Term and upon this the lessee his executors administrators or assignes may have an action of covenant if he be disturbed But where there is an expresse covenant in the deed for the quiet enjoying of the land there the Law will not make this implied covenant Expressum facit cessare tacitum And therefore herein this is not like to the case Warranty where a man doth make a lease for life by the words of Dedi concessi or make a lease for life by other words reserving rent in which cases the law doth create a warranty against all men during the life of the lessor for if in these cases there be an expresse warranty in the deed yet this doth not take away nor qualifie the implied warranty but the Lessee may make use of which of them hee will if he bee ousted or evicted by one that hath an elder title A covenat in particular being one part of a deed is subject Plow 287. See in Exposition of Deeds before in toto 6. How a covenant in deed or law shall be taken and expounded And how it shall be performed to the generall rules of exposition of all parts of deeds in generall as to bee alwayes taken most strongly against the covenantor and most in advantage of the covenantee 2. To be taken according to the intent of the parties 3. Vt res magis valeat c. 4. When no time is limited for the doing of the thing it shall bee done in reasonable time and the like In cases where the covenantees have or are to have several interests Ioint and severall or estates there when the covenant is made to and with the Co. 5. 19. Dier 338. Bro. Covenant 49. covenantees cum quolibet eorum aut alterâ— eorum in this case these words make the covenant severall as if one by Indenture demise black acre to A and white acre to B and green acre to C and covenant with them and either of them or covenant with them and every of them that he is lawfull owner of all these acres in this case the covenant is severall but if he demise to them the three acres together and covenant in this manner the covenant is joint and not severall And if A and B doe covenant jointly and severally in this case the covenant may bee joint or severall and the covenantors may be sued either the one way or the other at the election of the covenantee If one make a lease of land to another and covenant that hee F. N. B. 145. 1. Dier 328. 26 H. 8. 3. For quiet enjoying shall quietly enjoy it without the let of any person whatsoever or without the let of any person whatsoever claiming by or under the lessor in both these cases the covenant shall be taken to extend Mich. 7 Jac. B. R. accord in Gambles case to such persons as have title or claime some estate under the lessor for if in the first case any person
Summons ad warrantizandum And if the vouchee appeare he must plead to the vouchor and if he shew cause why he should not warrant that must be tried and this shewing of cause is called a Counterplea to the voucher but if he plead in a voidance of the warranty it is called a Counterplea to the warranty And Counterplea to the voucher Quid. Connterplea to the warranty Quid. if he cannot gainesay the warranty the stranger shall recover the land demanded against the vouchor and he shall recover as much other land against the vouchee of the lands he hath or had at the time of the voucher And this recovery of other land is called a recovery in value And if the vouchee hath at the time of the voucher and recovery no lands descended to him to answer the warranty Recovery in value Quid. but hath afterwards land happening to him by descent from that Ancestor then he may have a resummons and recover the land that doth after happen But if the Sheriffe returne upon the summons that vouchee is summoned he doth make default then he shall have a Magnum cape ad valentiam when if he make default againe the Judgement shall be given against the vouchor and he shall recover over in value against the vouchee and if the vouchee appeare and then make default the vouchor shall have a parvum cape ad valentiam and then if he make default Judgement shall be given as before But if the Sheriffe returne upon the summons he hath nothing whereby he may be summoned then may the vouchor have a writ called Sequatur sub suo periculo whereupon shall goe an Alias and Pluries and if the like returne be made the Sequatur sub suâ— periculo Quid. demandant shall have Judgement against the first tenant but he cannot recover in value against the vouchee And if the case be so the vouchee had a warranty from some other for the land he may dearaigne i. maintaine the warranty over and shall recover Dearaignment del Garranty Quid. in value over also against his vouchor in the same manner as before Or the warrantee to whom the warranty is made or his heires may at any time before they be impleaded for the land if they will F. N. B. 134. Co super Lit. 102. bring a Warantia Chartae upon the warranty in the deed against â—arrantia â—hartae Quid. the warrantor or his heires and hereby all the land the heire of the warrantor hath by descent from the Ancestor that made the warranty at the time of this writ brought shall be bound and charged with the warranty into whose hands soever it goe afterwards so that if the land warranted be after recovered from the warrantee he shall recover so much land over againe of the other land of the heire of the warrantor or of the warrantor himselfe if he be living And albeit the warrantee or his heires doe recover in this writ yet he may after upon occasion vouch the warrantor or his heires notwithstanding And herein observe it is good policy if a man suspect any thing to bring this writ of Warrantia Chartae betimes because it binds all the land of the warrantor from the time of the writ brought and not any of his other lands he had before that time that are now aliened The words Dedi concessi or Dedi only in a feossement doe Co super Lit. 383 384. Co. 4. 81. 4. What words and clauses in a deed will make a warranty Or not make a warranty when an estate of franketenement or inheritance doth passe by the deed But the word Concessi only or Demisi concessi doe not make such a warranty And by force of the Statute of Bigamis chap. 6. Dedi is made an expresse warranty during the life of the feoffor The word Warrantizo or warrant is the only apt and effectuall Lit. Sect. 733. Co. 5. 17 18. word to make an expresse warranty or a warranty in deed and therefore this word only is used in fines And the words Defendo or Acquieto albeit they be commonly used in deeds yet of themselves without the other will not make a warranty If a man by deed doth grant to warrant land to I S and his Dier 42. Co. super Lit. 383. heires and the warrantor doth not bind his heires to the warranty or doth not warrant to I S and his heires but to I S only or doth warrant to I S and his assignes and not to I S and his heires or doth bind himselfe and his heires to warrant the land but doth not say how long nor against whom these are good warranties but how they shall be taken see afterwards A warranty in deed may be annexed to estates of inheritance Co. super Lit. 366. 389. or freehold and that not only of corporeall things which passe 5. To what things a warranty may be annexed and extended And to what not And how by livery as houses lands and the like but also of incorporeall things which lie in grant as Advowsons Rents Commons Estovers and the like which issue out of lands or tenements and that not only to inheritances in esse but also to such as are newly created as a man some say may grant a rent c. de novo out of land for life in taile or in fee with warranty So a warranty in law may extend to a rent newly created and therefore if such a rent be granted in exchange for an acre of land this Exchange and warranty thereunto annexed is good But a warranty may not be annexed to an estate or lease for years albeit it be a lease of one thousand years nor to any other chattell and therefore in all actions the which lessâ—e for years may have as trespasse c. a warranty cannot be pleaded in barre A warranty may be made upon any kind of conveyance as upon Co. super Litt. 372. 385. Litt. Sect. 738. 745 706. fines feoffements gifts c. also a warranty may be made by and upon releases and confirmations made to the tenant of the land albeit he that makes the release or confirmation hath no right to the land c. And yet some say that by a release or confirmation where there is no estate created or transmutation of the possession a warranty cannot be made to the assignee But if A be seised of land in fee and B doth release to him or doth confirm his estate in fee with warranty to him his heirs and assignes in this case all men agree this warranty to be good and so also it seems it is in the case last before and that both the party himself and the assignee may vouch A warranty in Law may be good in his creation albeit it be made 6. What shall be a good warranty in Law And how it shall barre and bind Co. super Litt. 384. 386. without deed for if
a man by his last Will and Testament devise lands to antoher man for life or in tail rendring rent to this estate there is a warranty in Law annexed The words Dedi concessi or Dedi onely in a feoffment make a Co. super Litt. 384. F. N. B. 134. Co. 4. 80. good warranty in Law But the word Concessi onely in fine or feoffment doth not make a warranty in law And albeit there be an expresse warranty in the deed yet this doth not take away the implied warranty of the Law And this warranty in Law by Dedi Concessi or by Dedi onely is a generall warranty during the life of the feoffor Every partition and exchange implieth in it and hath annexed Partition Exchange Co. super Litt. 102. 384. to it a speciall warranty in Law and how it shall bar and be extended see in Exchange Every tenure by homage Auncestrel i. where a tenant and his Co. 4. 80. Auncestors have held land of a Lord and his Auncestors time out of mind by homage hath a warranty in Law annexed to it by which the Lord is bound to warrant it to the tenant and his heirs If one make a gift in tail or lease for life of land by deed or without Co. super Litt. 334. deed reserving a rent or of a rent-service by deed in these cases there is annexed an implied warranty against the donor or lessor his heirs and assignes When dower is assigned to a woman there is a warranty in Law included which is that the tenant in dower being impleaded shall Co. super Litt. 384. vouch and recover in value a third part of the two parts whereof she is dowable And this warranty in Law is of the nature of a lineall warranty Co. super Lit. 384. and shall bind as a lineall warranty onely for it doth never barre any collaterall title And hence it is that this warranty and assets in some cases is a good bar as if tenant in tail exchange for other lands which are descended to the issue and he hath accepted of them or if not that other lands are descended to him But if tenant in tail of lands make a gift in tail or lease for life rendring rent and die in this case this is no bar And yet if other assets in fee simple descend this warranty in Law and assets is a good bar To every good warranty in deed that must barre and binde these Co. super Litt. 367. 7. What shall bee said a good warranty in deed Or not And how it shall bar and bind Infant things are requisite 1. That the person that doth warrant bee a person able for if an infant make a feoffment in fee of land and thereby doth binde him and his heirs to warrant the land in this case albeit the feoffement bee onely voidable yet the warranty is void 2. That the warranty be made by deed in writing for if a Litt. Sect. 703. Co. super Litt. 386. man make a feoffement by word and by word binde him and his heirs to warrant the land this is not a good warranty So if a man give lands to another by his last Will and thereby binde him and his heires to warrant it this warranty albeit the Will bee in writing is void 3. That there be some estate to which the warranty Co. 10. 96. Super Litt. 384. is annexed that may support it for if one covenant to warrant land to another and make him no estate or make him an estate that is not good and covenant to warrant the thing granted in these cases the warranty is void 4. That the estate to Co. super Litt. 378. 26 H. 8. 9. which the warranty is annexed bee such an estate as is able to support it and therefore that it be a lease for life at the least for if one make a lease for years of land and bind himselfe and his heires to warrant the land this is no good warranty neither will it have the effect of a warranty but this may amount to a covenant on which an action of covenant may be brought 5. That the wartanty Co. super Litt. 12. Litt. fol. 161 Sect. 735. 〈◊〉 descend upon him that is heir of the whole bloud by the common Law to him that made the warranty and not upon another for if tenant in tail in Burrough English where by custome the youngest son is to inherit discontinue the tail and have issue two sons and the Vncle release to the discontinuee with warranty and dieth this is no good warranty to binde the sonne So if in this case tenant in taile discontinue the taile with warranty c. having two sonnes and die seised of other lands in the same Burrough in fee simple to the value of the lands in taile the younger sonne is not barred by this warranty So if one give his land Litt. â—o 161. to the eldest sonne and the heires males of his body the remainder to the second sonne c. and the eldest sonne doth alien with warranty having issue a daughter and die this is no good warranty to barre the second sonne So if tenant in taile have issue two daughters by divers venters and die and they enter and a Litt. Sect. 737. stranger doth disseise them and one of them doth release all her right and binde her and her heires to warrant it in this case the warranty is not good to barre the sister but if they had beene by one venter contra So if two brothers be by demy venters and Co. super Litt. 387. Litt. Sect. 718. the eldest doth release with warranty to the disseisor of the uncle and dieth without issue and the younger dieth this is no good warranty to barre the younger brother for a warranty must evermore descend upon him that is heire at the Common Law to him that made it 6. That he that is heir doe continue to be so and Litt. Sect. 745. 746. that neither the descent of the title nor the warranty be interrupted for if one binde him and his heires to warrant and after is attainted of treason or â—elony and die this warranty doth not binde his heire So if tenant in taile be disseised and after release to the disseisor with warranty and after the tenant in taile is attainted of felony and hath issue and die this warranty will not bind the issue 7. That the estate of freehold that is to bee Co. 10. 96. 97. super Litt. 388. 21 H. 7. barred be put to a right before or at the time of the warranty made and that he to whom the warranty doth descend have then but a right to the land for a warranty will not barre any estate of freehold or inheritance in esse in possession reversion or remainder that is not displaced and put to a right before or at the time of the warranty made though after at the time
then the donee dieth without issue this warranty doth begin by disseisin So if the father and son and a third person be jointenants in fee and the father maketh a feoffment in fee of the whole with warranty and dieth and then the sonne doeth in this case as to the part of the third person and to the part of the sonne the warranty shall be said to beginne by disseisin But releases at this day by a tenant for life to a disseisor or any other without covin albeit it bee to the intent to barre him in reversion shall barre him for intent without covin and disseisin shall not avoid a warranty And examples of warranties that doe begin by disseisin have these qualities 1. That for the most part the disseisin is done immediately to the heire that is bound by the warranty 2. The warranty and disseisin are simul and semel And yet if a man disseise another with intent to make a feoffment with warranty albeit the feoffement be made twenty years after the disseisin yet it shall be said to bee a warranty that doth beginne by disseisin But in all these cases of warranties that doe beginne by disseisin this is the rule That they are altogether void and without force as to all others but to the parties themselves that doe make them and therefore they do not barre or binde any others at all of their right that have any And the same Law is of a warranty that doth begin by abatement or intrusion that is when an abatement or intrusion is made of purpose to make a feoffement in fee with warranty And so also it is where the tenant dieth without heir and an Auncestor of the Lord doth enter before the entry of the Lord and make a feoffement in fee with warranty in this case this shall not binde the Lord because it doth begin by wrong All warranties in generall are favourably taken in Law because 11. How a warranty shall be taken they are part of mens assurances Every warranty in Law is taken for and hath the effect of a lineall warranty The warrnaty that is made by Dedi Concessi or Dedi only in a Co. 4. 81. 5. 17. feoffement is and shall be taken for a generall warranty against all persons to the feoffee and his heires during the life of the feoffor onely albeit there be no service reserved by the deed nor heir named but it shall not extend to the assignee of the feoffee And if there be any service reserved on the deed then it shall extend against the heir also The warranty in Law that is made upon a gift in tail or lease for Co. 4. 81. super Litt. 384. life rendring rent is a speciall warranty against the donor and lessor and his heirs and assignes so that the donee or lessee may vouch the grantor after the grant of the reversion or the grantee of the reversion after the atturnment of the tenant at his election The warranty in Law that is made upon an Exchange is special in Co. 4. 121. super Litt. 384. divers respects for it extendeth reciprocally to and against the heires of both parties and it doth extend only to the same land that is given in exchange and none other and no use can be made of it but by voucher for no Warrantia Cartae doth lie upon it So also the warranty that is made in dower is taken to extend only to the other two parts of the land The warranty in Law that is made upon the tenure of Homage Co. super Litt. 384. Auncestrel extendeth reciprocally to the heires and against the heires of both parties If a feoffement be made of land to three jointly and the feoffors Co. 5. 59. doe warrant the land to the feoffees and every of them this warranty shall be joint and not severall But if the estate be severall as if one grant white acre to A and blacke acre to B and grant to warrant the land to them and either of them in this case the warranty shall be severall If a man of full age and an infant join in a feoffement with warranty Co. super Litt. 367. this shall be taken for a good warranty as to the whole for him that is of full age and void for the infant and not void in part and good in part Co. super Litt. 386. If a man make a feoffment in fee bind his heirs but not himself to warranty in this case and by this his heirs shall not be bound and Co. super Litt. 47. 385. Dier 42. Kelw. 108. Co. 6. 69. a man binde himselfe to warrant and not his heirs by the feoffement in this case the feoffor himselfe is bound to the warranty but not his heirs for it is a maxime of Law That the heir shall never be bound to any expresse warranty but where the Auncestour was bound by the same warranty If one make a feoffment to B and his heirs and thereby doth grant to warrant the land and doth not say to B and his heirs yet this warranty shall be taken to extend to them But if the feoffor doth grant to warrant the land to B and doth not say to his heires this shall not extend to his heirs And if in this case the warranty be to B and his assignes it shall not extend to his heirs neither shall the assignees take advantage of it after the death of B. And if the warranty be to B and his heirs and not to his assignes also this shall not extend to his assignes If one make a feoffment to A habendum to him and his heirs and binde himselfe and his heirs to warrant the land in forma praedicta in this case the warranty shall extend to the feoffee his heirs If one grant to warrant land to another and his heirs and doth Co. 1. 1. not say against what persons this shall be taken for a generall warranty against all men If one make an estate and grant to warrant the land but doth not say how long this shall bee taken for as long as the estate to which the warranty is knit doth last If a warranty be made against any speciall persons it shall extend Dier 328. to them and no further and it shall extend in all cases for and to all titles and entries upon title and it shall not in any such cases extend to tortious and unlawfull entries If a man bee seised of a rent-seck issuing out of the Manor of Co. super Litt. 366. Dale and hee take a wife and the husband doth release to the terre-tenant and warranteth tenementa praedicta and dieth this warranty shall extend to the rent as well as to the land and therefore if the wife sue for her thirds of the rent the terre-tenant may vouch the heire And regularly the warranty doth extend to all Co. super Litt. 388 389. things issuing out of the land viz. to
warrant it in the same manner and plight as it was in the hands of the feoffor and hee shall vouch as of lands discharged And therefore if grantee of a rent grant it to the tenant of the land on condition and the tenant doth make a feoffment of the land with warranty in this case the warranty shall not extend to the rent albeit the feoffment be made of the land discharged of the rent And if a woman have a rent-charge in fee and she doth intermary with the tenant of the land and a stranger doth release to the tenant of the land with warranty this warranty shall not extend to barre any action to be brought after the death of the wife for the rent But if in this case the tenant make a feoffment in fee with warranty and dieth the feoffee in a cui in vita brought by the wife shall vouch as of lands discharged at the time of the warranty made So if tenant in taile of a rent-charge purchase the land and make a feoffment with warranty and the issue bring a Formedon of the rent the tenant shall not vouch c. All those that are parties to the warranty i. such as are named Co. super Litt. 365. 5. 17. 12. Who may take advantage of a warranty And how And against whom it may bee taken Assignes in the deed regularly shall take advantage of the warranty as if one doth warrant land to another his heires and assignes in this case both the heirs the assigns may take advantage of it and they both may vouch or â—ebut or have a warrantia cartae so as they come in in privity of estate for otherwise the heire or assignes cannot vouch or have a Warrantia Cartae and yet he may rebut notwithstanding in divers cases But those that are are not named for the most part shall not take advantage of the warranty and therefore if land be warranted to I S and not to him and his heirs or to him and his assigns or to him his heires and assigns in these cases neither the heire nor the assignee may vouch or have a Warrantia Cartae and yet in some cases where it is so the assignee or tenant of the land may rebut The warranty annexed to an Exchange a Partition by Dedi Co. super Litt. 384. and by homage Auncestrell doth alwayes goe in Privity and therefore an assignee in these cases can take no advantage of it And yet in the cases of Exchange and Dedi an assignee may rebut But the assignee of a lessee for life may take advantage of the warranty in Law annexed to his estate If one grant to warrant land to another his heirs and assigns in Co. 5. 17. super Litt. 384 385. this case the heirs or assignes heire of the assignee or assignee of the heirs of the feoffee or assignees of assignees in infinitum shall take advantage of the warranty And therefore if one infeoffe I S to have and to hold to him his heires and assignes and warrant the land to him his heires and assignes and A doth infeoffe B and his heires and B dieth in this case the heire of B shall vouch as assignee to A. And if one infeoffe A and B Habendum to them and their heires and warrant the land to them their heirs and assignes and A die and B doth survive and die and his heire infeoffe C in this case C shall take advantage of this warranty as assignee If one infeoffe A with warranty to him his heirs and assignes and A doth infeoffe B and B doth reinfeoffe A in this case neither A or his assignes shall ever take any advantage of this warranty And yet if B infeoffe the heire of A he may take advantage of the warranty If one make a feoffment by deed with warranty to the feoffee his heirs and assignes and the feoffee doth make a feoffment over to another by word without deed in this case the second feoffee shall have all the advantage of this warranty for an assignee by word shall have the same advantage that an assignee by deed shall have If a feoffment be made with warranty to a man and his heirs and assignes and he make a gift in tail the remainder in fee and the donee make a feoffement in fee this feoffee shall not vouch as assignee but he must vouch his donor upon the warranty in Law and yet he may rebut If lands be given to two brethren in fee simple with warranty to the eldest and his heirs and the eldest die without issue in this case albeit the other brother be his heire yet he shall have no advantage at all by the warranty because he comes in above the warranty But generally all that claime under the warranty shall take advantage thereof by way of rebutter albeit they can take no other advantage by it If one make a feoffment to two their heirs and assigns and one of them doth make a feoffment in fee this feoffee in this case shall not take advantage as assignee An assignee of part of the land shall take advantage of a warranty Co. super Litt. 385. as if a man make a feoffment of two acres with warranty to him his heirs and assigns and the feoffee doth make a feoffment of one acre of it to another in this case the second feoffee shall take advantage of the warranty as assignee And therefore herein there is a difference between the whole estate in part and part of the estate in the whole or in any part for if a man have a warranty to him his heirs and assigns and he make a lease for life or gift in tail in these cases the lessee or donee shall not take advantage of the warranty as assignes but they may vouch the lessor or donor upon the warranty in Law But if a lease for life bee made the remainder Co. super Litt. 384. in fee such a lessee may vouch as assignee upon the first warranty If the father have a feoffment made to him and his heirs with warranty and he make a feoffment to his son and heire with warranty in this case the son may take advantage of the first warranty after his fathers death If a man infeoffe a woman with warranty Co. super Litt. 390. and they intermary and are impleaded and upon the default of the husband the wife is received in this case she may vouch her husband Et sic è converso If a woman infeoffe a man with warranty and they intermary and are impleaded the husband in this case shall vouch himself and the wife He that comes into the land meerly by act of Law in the post as 26 H. 8. 3. 22 Ass pl. 37. 29 Ass 34. Co. 3. 62 63. the Lord by Escheat or the like shall never take advantage of a warranty and therefore if tenant in dower infeoffe a villain with warranty and the Lord of the villaine enter or
a feoffment bee to a bastard with warranty and hee die without issue and the Lord enter by Escheat in these cases the Lord shall never take advantage of these warranties But otherwise it is where a man comes to the land by limitation of use or a common recovery which is by the act of the party for if tenant in taile being in of another estate i. by disseisin or feoffement of a disseisor suffer a common recovery and a collaterall Auncestor of the tenant in taile doth realease with warranty to the recoveror and after the recoveror doth make a feoffment to uses which are executed by the Statute of 27 H. 8. and after the collaterall Auncestor dieth in this case the terre-tenants may take advantage of the warranty by way of rebutter albeit the estate be transferred in the post So if hee to whom the warranty is made suffer a common recovery and after the Auncestor dieth the recoveror may take advantage of this warranty by way of rebutter for any man that hath the possession of land albeit he have no deed to shew how he came by the possession of it or how he is assignee may rebut the demandant and so barre him and defend his owne possession And therefore the tenant by the curtesie donee in taile that is in of another estate an assignee by force of a warranty made to a man and his heirs feoffee of a donee in taile may rebut and bar the demandant by the warranty If one infeoffe another of an acre of ground with warranty Co. super Litt. 376. 1 Ed. 3. 13. 5 H. 7. 2. and hath issue two sons and dieth seised of another acre of land of the nature of Burrough English in this case albeit the warranty descend upon the eldest sonne onely yet both the sonnes may be vouched And so also it is of heires in Gavelkind the eldest shall be vouched as heire to the warranty and the rest in respect of the inheritance And in like sort the heire at the Common law and the heire of the part of the mother shall bee vouched or the heire at the Common law may bee vouched alone at the election of the tenant And in like sort the heire at the Common law shall be vouched with the heire in Burrough English And so also a bastard shall be vouched with a mulier And if a man die seised of certain lands in â—ee having issue a sonne and a daughter by one venter and a sonne by another and the eldest sonne entreth and dieth and the land doth descend to the sister in this case the warranty doth descend on the son and he may be vouched as heir and the sister also may be vouched as heir to the land If two make a feoffment with warranty and the one die the survivor shall not be charged alone with the warranty but the heir Co. 3. 14. â—uper Lit. 386. 16 H. 7. 13. 48 Ed. 3. 5. of him that is dead shall be charged also And if two be bound to warrant land and both of them die the heires of both of them ought to be vouched and shall be equally charged And if the heir be vouched in the ward of three severall persons the one of them onely shall not be charged but they shall be charged equally If a woman an heir of the disseisor infeoff me with warranty afâ—er she is maried to the disseisee in this case I may take advantage of Co. super Litt. 365. this warranty against the disseisee and rebut him upon it if he sue me for the land So if the husband and wife sue me for the land of his wife and I have a warranty of a collaterall Auncestor of the husbands descended to him in this case I may make use of this to barre the husband and wife A warranty lineall or collaterall may be defeated determined or 13. When a warranty shall be said to be defeated determined or avoided And how Or not Co. super Lit. 392. 393. avoided in all or in part And this is sometimes by matter in law and sometimes by matter in deed If the estate to which the warranty is annexed be gone the warranty annexed thereunto is gone also And therefore if an estate Co. 10. 96. 1 2 3. 62 Lit. Sect. 741. Co. super Lit. 392. tail towhich a waranty is annexed be spent the warranty is determined And if a man make a gift in taile with warranty and after the donee doth make a feoffment and die without issue the warranty is gone So if tenant in taile discontinue the taile and the discontinuee be disseised or make a feoffment on condition and a collateral auncestor of the issue release to the disseisor or feoffee on condition with warranty and after the discontinuee doth enter upon the disseisor or on the feoffee for the condition broken in these cases the warranty made by the collaterall auncestor is gone So if a Seigniory be granted with warranty and the tenanâ—y escheat so that the Seigniory is extinct hereby also the warranty is defeated So if a collaterall Auncestor heretofore had released with warranty and then had entred into Religion this warranty had bound but if after he had been dearaigned the warranty had been defeated If the father make a feoffment to his sonne and heire apparant Co. super Lit. 384. Bro. Garranty 27. with warranty and die so that the warranty doth descend upon the sonne hereby the warranty is gone And yet if a feoffment be made to a man and his heires and he dieth leaving issue daughters in this case the warranty shall be divided and is not determined If tenant in taile doth make a feoffment to his Uncle and after Lit. Sect. 743. Co. super Lit. 390. Lit. Sect. 744. the Uncle doth make a feoffment in fee with warranty c. to another and after the feoffee of the Uncle doth reinfeoffe againe the Uncle and after the Uncle doth infeoffe a stranger in fee without warranty and dieth without issue and the tenant in taile dieth hereby the warranty made to the first feoffee is defeated So if the Uncle make the warranty to the feoffee his heires and assignes and take backe an estate in â—ee and after doth infeoffe another But if one make a feoffment with warranty to the feoffee his heires and assignes and the feoffee doth reinfeoffe the feoffor and his wife or the feoffor and a stranger in these cases the warranty is not defeated but doth continue still So if two doe make a feoffment with warranty to one his heires and assignes and the feoffee doth reinfeoffe one of the feoffors in this case the warranty is not gone And â—f in the first case the feoffee make an estate to his Uncle in tail or for life saving the reversion or a lease for life the remainder over c. in this case the warranty is only suspended If one make a feoffment or release with warranty and after is
Co. super Lit. 391. attained of treason or felony hereby the warranty is gone and albeit he doe afterwards obtaine his Pardon yet the warranty is not revived If a feoffment with warranty be made to two or more and they Co. 6. 12. being Jointenants doe after by deed make Partition by this the warranty is determined So if two Jointenants be and one of them disseise the other and he that is disseised doth recover in an assise and hath Judgement to hold in severally hereby the warranty is determined * Adjudge Hil. 22 Jac. B. R. Eustace Sholes case So if A and B be Jointenants of white acre for life and A by fine doth grant to B totum quicquid habet in tenemeutis hereby the warranty is gone But if a Partition be made by Judgement upon a writ by force of the Statute of 13 H. 8. this doth not defeat the warranty fallen to them but it shall be divided between them and they shall all of them take advantage of it If one enfeoffe three with warranty to them and their heires Co. super Lit. 385. and one of them release to one of the other two hereby the warranty is gone for that part But if one of them release to the other two in this case the warranty is not gone but doth continue and they may vouch upon it If one enfeoffe two men and their heires and one of them doth Co. super Lit. 385. make a feoffment in fee hereby the warranty is not determined but the other may take advantage of it notwithstanding If the party that hath the warranty or the estate to which the Co. super Lit. 393. 392. Lit. Sect. 748. Release warranty is annexed release to him that is bound to warrant all warranties or all covenants reall or all demands by either of these releases the warranty is gone So also if by a defeasance made Deseasance between the parties it be agreed the warranty shall be void by this defeasance the warranty may be avoided also Or if it be so agreed that the warrantee or his heires c. shall not vouch or have a Warrantia cartae by this the warranty is avoided in part If tenant in taile doth enfeoffe his Uncle which doth enfeoffe another Co. super Lit. 391. in â—ee with warranty if in this case the feoffee release the warranty to his Uncle hereby the warranty is extinct But if a gift in taile be made with warranty in this case a release made by the tenant in taile of this warranty will not extinguish it If the parties between whom the warranty is intermary hereby Co. super Lit. 390. the warranty is suspended during the coverture in some cases If tenant in taile doth make a feoffment in fee with warranty Co. super Lit. 330. and disseiseth the discontinuee and dieth seised this doth suspend the warranty If two make a feoffment in fee and warrant the land to the Co. super Lit. 393. feoffee and his heires and the feoffee doth release the warranty to one of the feoffors this doth not determine the warranty of the other as to the moity So if one doth infeoffe two with warranty and the one of them doth release the warranty this doth not extinguish the warranty for the other moity but it doth continue still A warranty also may lose his force by taking benefit or making use thereof for after a man hath once taken advantage thereof in some cases he can make no further use of it of which read Co. super Lit. 393. And now having done with Deeds in generall and some of the parts thereof in speciall we are in order to come to some speciall kinds of deeds wherein we will first begin with a deed of Feoffment CHAP. IX Of a Feoffment FEoffamentum i. Donatio feodi strictly and properly is the gift 1. Feoffment Quid. New termes of the law Co. super Lit. 9. Lit. Sect. 57. or grant of any honors castles manors messuages lands houses or other corporall immovable things of like nature which be hereditable to another in fee simple i. to him and his heirs for ever by the delivery of seisin and possession of the things given And from hence comes the word Infeoffe for by this word and the Infeoffe words Give and Grant as the most apt words for that purpose is this kind of conveyance most commonly made Hence also it is that he that makes this feoffment is called the feoffor and he to whom it is made the feoffee Also it is sometimes but improperly Feoffor Feoffee called a feoffment when an estate of freehold only doth passe This kind of conveyance albeit it may be made in most cases by 2. Quotuplex See West Sym. 1. part Sect. 235. Co. super Lit. 6. word without any writing â—et it is most commonly done by writing and this writing is then called a Deed or Charter of feoffment but hence is the division of a feoffment by word or a feoffment by writing The ancient formes and examples of these deeds are very briefe and and yet they had these parts contained in them 1. The Premisses 2. The Habendum 3. The Tenendum 4. The Reddendum 5. The Clause of warranty 6 The In cujus rei testimonium 7. The Date 8. The clause of Hiis testibus Haec fuit candida illius aetatis â—ides simplicitas quae paâ—câ—lis lineis omnia fidei firmament a posueruut * Co. super Lit. 49. 9. Co. 1. 111 112. Plow 554. 9 H. 7. 24. 39 H. 6. 43. Co super Lit. 237. Perk. Sâ—ct 210. 24 E. 3. 70. Co. 1. 121. Co. 6. 70. Bro. scire facias 88. Plow 423 424. And this manner of conveyance as it is the most ancient kind 3. The nature and operation of it of conveyance so is it the best and most excellent of all others and in some respects doth excell the conveyance by â—ine or recovery for it is of that nature and efficacy by reason also of the livery of Seisin evermore inseparably incident to it that it cleereth all disseisins abatements intrusions and other wrongfull and defeasible titles and reduceth the estate cleerly to the feoffee when the entry of the feoffor is lawfull which neither fine recovery nor bargaine and sale by deed indented and inrolled will doe when the feoffor is out of possession And it passeth the present estate of the feoffor and not only so but barreth and excludeth him of all present and future right and possibility of right to the thing which is so conveyed insomuch that if one have divers estates all of them passe by his feoffment and if he have any interest rent common or the like into or out of the land it is extinguished and gone by the feoffment And further it barreth the feoffor of all collaterall benefits touching the land as condition power of revocation writs of error attaint and the like
surrender is made And what agreement is necessary Agreement Trespasse surrendree doe once agree to it he cannot after disagree for his first agreement doth perfect the surrender But the actuall entry of the surrendree into the land is not necessary And therefore if tenant for life or years surrender to him in reversion out of the land and he agree to it he hath the land in him presently And yet he may not bring any action of Trespasse against any man for any Trespasse done upon the land untill he have made his entry But here note that in the cases before where things may not Perk. Sect. 588 589. passe by way of surrender either because of an intervenient estate or the like if there be sufficient words in the deed it may avail to other purposes and may enure and passe the thing by way of grant but then if it be an estate for life that is intended to bee surrendred there must be livery of seisin made upon the deed And wherefore if there bee lessee for yeares the remainder for life or years the remainder in fee and the lessee for years in possession doth surrender and grant all his estate to him in remainder in fee howsoever this deed cannot enure as a surrender yet it shall enure as a good grant of the estate of the lessee for years unto him in remainder in fee. A surrender in generall shall be taken most strongly against the Perk. Sect. 610 611. 6. How a surrender shall be construed and taken surrendror and most beneficially for the surrendree And therefore if I hold of the lease of A one acre for life and another acre for years and I surrender to A all my lands or all my lands I hold of his lease by this surrender both the acres are surrendred But if the surrender be of all the lands I have or hold for life or of all the lands I have or hold for years of the lease of A contra And if I hold one acre for life of the lease of the father of I S and I hold another acre for life or years of the lease of I S himself and I surrender to I S all the land I hold of his lease by this the land that I had by the lease of his father doth not passe A surrender to Perk. Sect. 615. Bro. Sur. 54. Co super Lit. 192. one jointenant shall be construed to enure to them all But if tenant for life or years grant his estate to one of the jointenants in reversion it seems this shall not enure as a surrender to them all but as a grant to him alone If the lessor make and the lessee take a new lease upon condition Co. super Lit. 218. this surrender in law is absolute and albeit the condition be broken yet the first lease is gone But if the lessee surrender or grant his estate to the lessor upon condition this condition if it be broken may revest the estate See more in the next question and in Exposition of Deeds If any kind of tenant for life of land infeoft him in remainder or Bro. sur 3. 5. Perk. sect 616. 620. 623. Co. super Lit. 42. Bro. Sur. 49. 7. Where a feoffment lease grant or other act made or doÌ„e by the tenaÌ„t for life or years shall be a surrender or not And how it shall enure or be coâ—strued and taken 1. When it is made to him in reversion or remainder reversion of the land or grant his estate to him in remainder or reversion this shall enure as a surrender And if lessee for years before his term doe begin make a feoffment to him in reversion or remainder or grant his estate to him this shall enure as a surrender And if lessee for life grant his estate to him in reversion the remainder in fee to another this shall enure as a surrender and this remainder is void But if such a tenant for life make a lease to him in remainder or reversion for the terme of the life of him in remainder or reversion this shall not enure as a surrender because it doth not give the whole estate but it shall enure by way of grant So if lessee for life make a lease to him in remainder in tail for term of the life of him in remainder this shall not enure as a surrender but as a grant and shall end with the life of the grantee If lessee for forty years make a lease for thirty seven Pasch 7 Jac. B. R. years on condition and after grant his estate to him in reversion and the second lessee atturn this shall enure as a surrender If there be tenant for life the remainder in tail to a stranger and Perk. sect 6â—â— the remainder in tail to another stranger the remainder in fee to the tenant for life and the tenant for life doth make a feoffment to the first tenant in tail this shall enure as a surrender of the estate for life and as a grant of the reversion in fee also If tenant Co. super Lit. 42. for life being a woman take a husband and then her husband and she by deed indented make a lease to him in reversion for the life of the husband this shall not enure as a surrender but as a grant If there be tenant for his own life the remainder to I S for his life Bro surrender 17. and the first tenant for life surrender to him in remainder for the life of him in remainder it seems this shall enure as a surrender and is no forfeiture but if he grant it to him for the life of a stranger and make livery of seisin this is a forfeiture If lessee for Forfeiture Perk. sect 615. life the reversion being in jointenants grant the land to one or all of the jointenants for twenty years this shall not enure as a surrender but as a grant for there remains an interest in the lessee still as a mean estate If lessee for years make him in reversion or Bro. surrender 52. remainder his executor this shall not enure as a surrender albeit it doe give him the whole estate If lands be given to the husband Bro. surr 36 and wife the remainder to I S and the husband discontinue in fee and take back an estate to him and his wife the remainder to W N and die and the wife claim in by the second estate and surrender to W N this shall not enure as a surrender but as a grant If lessee for life or years grant his estate to him in remainder or Bro. surr 11. Co. 2. 61. 3. 61. reversion and a stranger this shall enure as a surrender of the one 2. When it is done or made to him and a stranger half to him in reversion and as a grant of the other moity to the stranger And yet it is said that if lessee for life of land grant his estate
enure as releases howbeit it may be if they have words of surrender in them they may enure as surrenders So if there be lessee for years the remainder in taile the remainder Adjudge Trin. 5 Jac. B. R. Butlers case Surrender in fee and the lessee for years being a woman doth mary with him in the remainder in fee and he in remainder in taile release to him in remainder in fee this is a void release So if tenant for life release to him in remainder in fee or in taile it seems this is void and cannot enure as a release So if there be tenant for life Lit. Sect. 598. Plow 556. Co. super Lit. 345. the remainder in taile the remainder in fee and he in remainder in fee release to the tenant for life this will not increase his estate And if the tenant in taile in this case release to the tenant for life his estate shall be no longer increased hereby then for the life of the tenant in taile 2. He to whom the release is made Co. super Lit. 270. 273. 265. 2. In respect of the estate of him to whom the release is made must have some estate in possession in deed or in law or in reversion in deed in his own or anothers right of the lands whereof the release is made to be as a foundation for the release to stand upon for a release which must enure to enlarge an estate cannot work without a possession joined with an estate And therefore the relessee must be lessee for life years or tenant by Statute merchant staple elegit or as gardian in chivalry that doth hold the land over for the value or at least he must be tenant at will And therefore if a man let his land to another for term of years Lit. Sect. 459. Plow 423. Dier 4. 15. H. 7. 14. to begin presently and after the lessor or his heir doth release to the lessee after his entry and being in possession all his right in the land this is good to enlarge the estate according to the time set down in the release but if the release be before the term begin or after the term begin and before the lessee have entred howsoever if any rent be reserved on the lease it may enure and be good to extinguish that rent yet it is not good to enlarge the estate And yet if a tenant for 20. years in possession make a lease to B for 10. years and B enter and he in the reversion release to the first lessee for years this is a good release to enlarge the estate So if a man make a lease for years the remainder for life or years and the first lessee doth enter in this case a release to him in remainder is good to enlarge the estate So if I grant the reversion of my tenant for life to another for life and after release to him and his heires this is a good release to enlarge the estate So if a man make a lease for life or yeares to a feme sole and Co. super Lit. 273. shee take a husband and he in the reversion release to the husband and his heires this is a good release to enlarge the estate according to the words of the release But if the case be so that a man had an estate in possession of land and he be now out of the possession of it and have but a right only to it or if he have a possession only and no estate or if he have neither estate nor possession in these cases a release made to such a one will not availe to enlarge his estate And therefore if a man make a lease for life the remainder for Co super Lit. 270. life and the first lessee dieth and the lessor release to him in remainder for life before his entry this is a good release to enlarge his estate for he hath an estate of free hold in law capable of enlargement by release before entry But if there be lessee for life the remainder Lit. Sect. 451. for life the remainder in tail the remainder in fee and the lessee for life is disseised during the possession of the disseisor he that hath right doth release to one of them in the remainder this is void So if lands be given in taile or leased for life and the donee Lit. Sect. 455 456. or lessee is disseised and during the possession of the disseisor the donor or lessor doth release all his right to the donee or lessee this is void and will not enlarge his estate howbeit if there be any rent reserved on the estate it will extinguish the rent So if the tenant Co. super Lit. 273. by the curtesie grant over his estate and after he in reversion doth release to the tenant by the curtesie in this case his release is void and will not enlarge his estate So if an Infant make a lease for life and the lessee granteth the estate over with warranty and the Infant at full age doth bring a Dum fuit infra aetatem and the tenant doth vouch the grantor who doth enter into the warranty and the demandant being the Infant doth release to him and his heires this will not enlarge his estate for in truth he had no estate before and that which is not cannot be enlarged And if lessee Dier 251. for life or yeares release to him in remainder or reversion this cannot be good as a release howbeit if there be apt words it may amount to a Surrender * Co. super Lit. 271. Lit. Sect. 461. And if a man have only an occupation of land as tenant at sufferance as when a lessee for yeares doth hold over his terme or the like no release to him can work any enlargement of estate for albeit he have a possession yet hath hee no estate and besides in this case there is no privity which is the third thing required in these releases For as in all Co. super Lit. 296. Lit. Sect. 461. these releases that enure by way of increase or passing an estate 3. In respect of privity there must be some estate in the relessor and the relessee so there must be some privity in estate between them at the time of the release made for an estate without privity is not sufficient And therefore it must be between donor and donee lessor and lessee and the like as in the cases before between him in reversion and the lessee for life or yeares tenant by Statute Merchant or Staple or by Elegit or Gardian in Chivalry that keepeth the land for the value And if tenant for life lease for yeares and he in the reversion and Plow 541. the tenant for life doe joine together and release to the lessee for yeares this is a good release to enlarge the estate So if he Co. super Lit. 273. in reversion release to the husband that hath an
respect of the estate of the relessor discharge or extinguish any right or title of lands it is also further requisite 1. That he that doth make it hath at the time of the release made some right or title to release As where one doth disseise me of land and I release to him all my right in the land this is a good release So if one disseise my tenant for life and I being the next in remainder or reversion in fee do release to him that did make the disseisin this is a good release So if the husband make a lease for life and then take a wife and dieth and the wife release her dower to him in reversion this is a good release And so also if after the mariage a man make a lease for life the remainder in fee and shee release all her right to him in remainder in fee or to him in reversion this is a good release and will barre her for ever And therefore if the Relessor have only a possibility of a right Lit. Sect. 446. Co. 10. 47. 42. super Lit. 265. or a right happen to come to him after the release this is not sufficient to make the release good And therefore if the father be disseised and the son before his fathers death release all his right to the disseisor and after the father dieth so that the right doth descend this is no good release to bar the Relessor of his right So if there be grandfather father and son and the father disseise the grandfather and make a feoffement and the son release in the life time of his father and after the father and grandfather die this release in this case will not bar him So if a lease Co. 10. 57. be made for life the remainder to the right heirs of I S and the lessee is disseised and the eldest son of I S living his father doth release to the disseisor this release is void So if the conusee of a statute c. doe release to the conusor all his right in the land this is void Co. 5. 70. and he may sue execution after notwithstanding Or if the Relessor Co. super Lit. 265. have only a power this is not sufficient to make the release good And therefore if a man by his will devise that his executors shall sell his land and dieth and the executors release all their right and title in the land to the heirs this release is void 2. In all cases of a release of a bare right of a freehold in lands 2. In respect of the estate of him to whom the release is made or tenements he to whom the release is made must at the time of Co. super Lit. 267. the making thereof in any case have the freehold in deed or in law in possession or some state in remainder or reversion in deed and not in right only in fee simple fee tail or for life of the lands whereof the release is made for rights of entry and actions and the like are not to be transferred to strangers but are thus to be released and such releases are good As if the disseisee release to the disseisor himself who hath the freehold in deed or to the heir of the disseisor before his entry who hath the freehold in law or to the lessee for life of the disseisor these releases are good So if a disseisor make a lease to A and his heirs during the life of B and A die and the disseisee release to his heir before his entry this is a good release So if a fine sur conusance de droit come ceo c. or sur conusance de droit only which is a Co. super Lit. 266. 275. Lit. sect 448. 1 H 6. 4. Dier 302. feoffment on record be levied or if tenant for life by agreement of him in the reversion surrender to him in the reversion or if a man doe bargain and sell his land by deed indented and inrolled or uses are raised by covenant on good considerations in all these cases the conusee him in reversion bargainee and cestuy que use have a freehold in law in them before entry And therefore a release to them of the right of the land by him that hath it is good and will bar the Relessor But otherwise it is in cases of Exchange Partition or upon Livery within the view for in these cases no release is good untill an actuall entry made for till then they have neither freehold in right nor law So if a disseisor make a gift Lit. Sect. 449 in tail or lease for life or years of the land and keep the reversion and then the disseisee or his heir release to the disseisor all his right this is a good release to bar his right for ever So if Co. super Lit. 260. Lit. Sect. 455 456. the heir of the disseisor be disseised and the first disseisee doe after release to him all his right this is a good release to bar him So if a donee in tail discontinue in fee and the donor release to the discontinuee and die this is a good release against the donor So if the donee in tail be disseised and after the donor release to the donee all his right this is good but in this case nothing of Extinguishment the reversion will passe by the release for the donee had then nothing but a right But if any rent be reserved on the estate tail the rent is gone by the release So if a lease be made to one for life rendring rent and the lessee is disseised and the lessor release to the lessee and his heirs all his right in this case albeit the rent be extinct yet nothing of the right of the reversion doth passe And yet if a woman that hath right of dower release to the guardian in Chivalry this is a good release and her right or title of dower is gone But if a disseisor make a lease for years and the disseisee release to the lessee for years this release is void because he hath no freehold But if he make a lease for life and the disseisee release to the lessee for life this is a good release So also a release to the disseisor after the lease for years made is good And Co. super Lit. 265. if lessee for years be ousted and he in the reversion disseised and the disseisor make a lease for years and the first lessee release to him this is a good release Also in some cases a release made to Lit. Sect. 448 449 450 451. Co. 8. 151. one that hath neither freehold in deed nor freehold in law is good when he hath an estate in reversion or remainder as in the case before where a release is made by the disseisee to the disseisor after he hath made an estate for life So if the demandant in a reall action release to the tenant that comes in by
receipt upon a prayer of aid or voucher upon a warranty this is good And yet if it be before the receipt or entry into the warranty or it be by any other besides the demandant it is void So if the tenant in a reall action alien hanging the precipe quod reddat against him and after alienation the plaintiff release all his right in the land to him this is a good release So if a disseisor make a lease for life the remainder to another for life the remainder to a third in taile the remainder to a fourth in fee and the disseisee release to either of them in remainder this is a good release But if in this case tenant for life be disseised and after he that hath right the possession being in the disseisor doth release to either of them in remainder this is a void release But in all the cases of a release of a bare Co. super Lit. 275. Lit. Sect. 470 471. Co. 10. 48. 3. In respect of privity right to him that hath an estate of a freehold in deed or in law generally there needs no privity to make the release good as in the cases before of a release made to the tenant for life of the disseisor and them that follow For if tenant for life make a lease to another for life of the lessee the remainder over in fee and the first lessor release al his right to him to whom the tenant made the lease for life this is a good release and a perpetuall bar albeit the release be not to him and his heirs And so it is in case of a reversion If lessee for years be ousted and he in the reversion disseised and the disseisor make a lease for years and the lessee that is ousted doth release to the lessee of the disseisor this is a good release And yet if the disseisee doe release to the lessee for years of the disseisor this is void If lessee for a thousand years be ousted by the lessor and he make a lease for two years and the lessee for a thousand years release unto him this is a good release But if a lessor disseise his lessee for life and make a lease for a thousand years and the lessee for life release to this lessee of a thousand years this release is void If one be disseised and after another doth disseise him and the Co. super Lit. 277. Lit. Sect. 473. 470 471 478. disseisee release to the last disseisor this is a good release So if A disseise B who infeoffeth C with warranty who infeoffeth D with warranty and E disseiseth D to whom B the first disseisee releaseth this is a good release and doth defeat all the mean estates and warranties So if my disseisor lease for life and the lessee for life alien in fee and I release to the alienee all my right c. this is a good release and will bar me of my entry but if my entry be gone as if I lease for life and my lessee be disseised and that disseisor is disseised and I release to the second disseisor in this case the first disseisor may enter upon the second So if my disseisor in the case aforesaid make a lease for life and the lessee for life maketh a feoffment to two and I release to one of the feoffees this is a good release and will bar me and my disseisor also So if tenant for life let the land to another for the life of the lessee the remainder to another in fee and the lessor release to his tenant for life this is a good release If one that hath a son within age be disseised and die and the disseisor die seised and the land descend to his heir and a stranger abate to whom the son when he comes of age doth release this is a good release So if one be disseised by an infant which doth alien in fee and the alienee die seised and his heir entreth the disseisor being within age and the disseisee release to the heir of the alienee this is a good release But where an inheritance or 9 H. 6. 43. an estate for life is released to one that is but tenant for years the release is not good without privity And therefore if tenant for Co. 10. 48. life or in fee release to the lessee for years of his disseisor this is not good But the release of a term of years to the lessee for years of him that doth eject him is good enough without privity as in the case before But here note that in cases of a void release of a right to an inheritance Co. super Lit. 265. Warranty or freehold where there is a warranty contained in the deed the warranty may be good and be used by way of rebutter albeit the release be void As if the son of the disseisee release with warranty in the life time of his father or there be grandfather father and son and the father disseise the grandfather and make a lease with warranty and die in both these cases albeit the son be not barred by the release yet he is barred by the warranty 4. Such words as will make a good release in the cases of releases Co. super Lit. sect 467. 4. In respect of the words whereby it is made that enure by way of enlargement of estate will make a good release in these cases And note that this kinde of release is good without any limitation or specifying of the estate for by a release of all a mans right without saying To have and to hold to him and his heirs c. in all the cases before he that makes the release is barred of his right for ever for if I be seised of an estate in fee by wrong and he that hath right release to me all his right albeit it be but for one houre yet this is a good release for ever * 7. What Releases may be made of other things And what shall be said a good Release in Deed of such things Or not And by what words Of a seigniory rent-service common or the like If there be Lord and tenant and the Lord release to the tenant Lit. sect 480. Co. super Lit. 280. 305. Perk. sect 70. all his right that he hath in the seigniory or all his right that he hath in the land c this is a good release to extinguish the seigniory And in this case there needs no words of inheritance or limitation for by release of all the right in the seigniory the same is extinct for ever without saying to him and his heirs And yet in this case the Lord may by apt words release his seigniory to the tenant only in tail or for life and it shall be good so long But if a Lord grant to his tenant that he shall doe his suit to another Manor of the Lords or that the tenant shall give him yearly twelve
good Devise of the land in Fee-simple or Fee-taile * 〈◊〉 c. 9. â—ac New mans case And if a man make a Feoffment of his land to the use of his last Will and then devise that his Feoffees shall be seised to the use of I S this is a good Devise of the land per intentionem * Plow 54â— Coo. 4. 66. 8. 95. And if I devise that I S shall have hold and occupy my land for his life this is a good Devise of the land for his life * Dye◠〈◊〉 33. 128. Coo. 1. 83. 6. 42. Dyer 4. 33. If a man have a Lease for yeares of land and he devise his Lease or his Terme or his Ferme or the profits or occupation of the land by either of these Devises his whole lease and all his interest in the land is given as well as by any other forme of words 3. A man may devise lands tenements or hereditaments in possession in Fee for life or yeares or he may devise it in reversion viz. to one for life the remainder to another in Fee or in taile or in any other sort as a man may grant it by his Deed and such Devises are good But if the Fee-simple of land be devised to one the remainder cannot be devised to another albeit the first Devise be but conditionall And therefore if land be devised to I S and his heires and if he dye without heires that it shall remaine to I N and his heires this is a void remainder to I N. So if a man devise his land to I S in Fee ita quod solvat I N 20l. and if he faile that it shall remaine to I N and his heires this remainder to I N is void for if I S faile of payment I N shall not enter and have the land but the heire of the Devisor And yet perhaps a rent may be devised after this manner Howbeit if another man have a Rent-charge of 20l. a yeare issuing out of my land for Dyer â—39 â—4 20. yeares and he devise this unto me untill I have levied 100l by way of retainer the remainder to I S this remainder is not good 4. A Devise may be of lands goods or chattels simply and absolutely or conditionally the simple Devise also may be in praesenti Condition Pâ—â—w 〈◊〉 Peâ—k Sect. â—63 See 〈◊〉 〈◊〉 8. 95 or in futuro And therefore as a Devise to one and his heires in praesenti is good so a Devise to one and his heires after the death of I S is good If I devise land to I S and his heires on condition as so as or ita quod he pay 10l to W S or paying to W S 10l or ad solvendum 10l to I S the Devise in all these cases is a good conditionall Devise and if the condition be not performed or broken the estate is ended and the heire may take advantage of it And therefore if lands be so given to the heire the condition is idle because none can enter but him And if I devise that if I S pay my Executors 20l. that hee shall have White acre to him and his heires for ever or for life c. this is a good Devise and after the contingent shall take effect accordingly and in this case and such like the heire of the Devisor must keep the land untill the contingent doe happen In like manner as if it bee a chattell the Executor shall keep the thing untill the condition bee performed and after a condition broken hâ— shall take advantage of it 5. A Devise may be also with a limitation as in the cases before Limitation and as where one gives land to another and his heires so long as I S shall have heires of his body or where one doth devise his land to A his sonne and his heirs for ever paying to B his brother 20 l. when he shall come of age and then that he shall enter and have it to him and his heirs and if he die without heirs of his body the said B then living then that B and his heirs shall have it in the same manner And these and such like Devises are good 6. A man that is seised of land in Fee may devise that his Executors Coo. super Lit. 112. 11â— 236. shall sell it or may devise it to his Exâ—cutors to sell or Devise it to his Executors and that they shall sell it and these Devises are good 7. A Devise may be of a rent or of land reserving Dyer 348. 100. 8. 84. 85. Clause of Distresse a rent with clause of Distresse As if a man Devise land to I S paying 10 l. by the yeare to his wife and if it be unpaid â—arrantiae that she shall distraine for it this is a good Devise But a Warranty cannot be made by a Wilâ— And yet if a man devise land to Coo. super Litt. 38â— another for life or in Taile reserving a rent in this case the heires of the Devisor shall be bound to the Warranty in Law and the Devisee shall take advantage of it 8. A man may devise his land Plow 523. 540. Dyeâ— 357. Coo. 8. 94. 83 to one and devise a rent out of the same land to another and these Devises are good So a man may devise his land to one in Fee and after devise the same land to another for life or years and these are good Devises and may stand together So also if a man in the fore-part of his Will by generall words devise all his lands to one in Fee and in the latter part of his Will devise some speciall part of it to another in Fee these Devises are good and shall stand together as for example if one have a Farm and in the first part of his Will give this Farm to one and in the latter part of his Will give one Close a part of this Farm to another or a man devise all his land in B which is in the County of Glouâ— to A his daughter and the latter part of his Will deviseth all his land in the County of Glouâ— in the possession of I S to his sonne and part of the land in B. is in the possession of I S and in Gloucestershire these are good Devises and shall stand together * 38 Bliz. Co. B. Agreed divers times But otherwise it is when the generall clause doth come last as where one doth give his land to A his daughter and in the latter part of his Will doth give all his land in Hartfordshire in the possession of I S to W and the land given to A is in Hartfordshire and in the possession of I S in this case the Devises will not stand together for the first Devise is void and so also it is where both the Devises are particular as where first in a mans Will he doth give White Acre to A and his heirs and after in
devises if the husband and wife have no children at the time of the devise is created an estate taile and if they have any children at the time of the devise then hereby is created an estate for all their lives onely in joyntenancie And if land be devised to A for life the remainder to B and the heires of his body the remainder to I S and his wife and after to their children by this devise I S and his wife have estates for their lives onely and their children after them estates for their lives joyntly And albeit they have no children at the time yet every child they shall have after may take by way of remainder And so also it seems is the law upon such a limitation by Deed Deed. If lands be devised to I S and his heires males or his heires females without saying of his body by this devise I S hath Deed Litt. Sect. 31. 9. H. 6. 25. 27. H. 8. 27. an estate taile But if such a limitation be by deed it is a Fee-simple If one have two sonnes and devise White Acre to his eldest sonne and his heires and Black acre to his youngest sonne and his heires Hill 22. Iac. B. R. Daniels case and if either of them dye without issue then that the other shall be his heire by this devise either of them hath an estate taile and no Fee-simple If one have land in Kent in W S and T and have one male child Adiudge M. 9. Iac. Wallops â—ase and a daughter and his brother hath three children B C and D and he devise his land thus Item I give my land in Kent to my male childe and his heires and if he dye without heires of his body that that the land in W shall go to B and his heires Item I will my land in S to C and his heires and my land in T to D and his heires in this case and by this devise the male child of the Devisor hath an estate taile in all the lands and after his death without heires it shall remaine according to the Will So that if one devise his land to his eldest sonne and his heires and if he dye without heires of his body that it shall remain to his youngest sonne and his heires by this devise the eldest sonne hath an estate taile and the youngest sonne the Fee-simple If one devise his land to his sonne W and if he marry and have any issue male begotten of the body of his wife then that issue to Coo. 9. 127 have it and if he have no issue male then to others in remainder by this devise it seems W hath an estate taile to him and the issues male begotten on the body of his wife If one devise White Acre to I S and the heirs of his body and then after saith thus and I will that I D shall have Black Acre in the same Perk. Sect. 561. 20. H. 6. 36. manner that I S hath White Acre by this devise I D hath an estate tail in Black Acre as I S hath in White Acre Et sic de similibus * Tr. 30. Eli. And if one devise White Acre to I S and then say Item Black Acre to I S and the heires of his body by this devise he hath an estate taile in both Acres If one devise his land to his wife for yeares the remainder to his younger sonne and his heires and if either of his two sonnes dye Dyer 122. without issue c. that it shall remaine to his daughter and her heires and the younger sonne dye in the life time of the Father and after the Father dyeth it seemeth by this devise the elder son shall have the land in taile If one devise his land to his wife for life and after to his sonne Adiudge Tri. 7. Iac. Co. B. Robinsons case and if his sonne dye without issue having no sonne or having no male then that it shall goe to another by this devise the sonne hath an Estate taile to him and the heires males of his body If lands be given to a man and woman unmarried and the heires of their two bodies or to the husband of A and wife of B and the Coo. super Litt. 20. 26. Plow 35. heires of their two bodies by these Devises are made estates in Taile If a man devise White acre to his three brothers and Black acre to C his brother so as he pay 10l to I S and otherwise that it shall remain Dyer 333. to the house provided that the same lands be not sold but go unto the next of name and blood that are males if it may be it seemes that by this devise C hath an estate tail in black acre and that if he die without issue it shall go to the three other brothers and their heires males in taile one after another and that white acre also is so entailed in every of their parts For the words shall remaine to the house shall be construed to the most worthy of the Family and the words that are males shall be construed in the future tense If land be devised to I S and the heires of his body and that if he die that it shall remain to I D by this Devise I S hath an estate Adiudg 14. Eliz. Coo. B. Trin. 9. Iac. B. R. Taile and the latter words do not qualify the former but I D must attend his death without heires of his body before he shall have the land If land be devised to I S and the heirs males of his body and if it Dyer 171. happen that he dye without heire of his body that it shall go to H and his heires by this Devise I S hath an estate to him and the heires males of his body and the subsequent words do not alter nor enlarge the estate If land be devised to I S and E his wife and to the heires of Coo. super Litt. 26. the body of the Survivor of them by this Devise the Survivor shall have a generall estate Taile If land be devised to I S and the heires he shall have by A his wife by this Devise I S hath a Fee Taile and not a Fee simple as Coo. super Litt. 26. Deed. he hath in case of such a limitation by deed If land be devised to I S and to the heires of the body of such a woman by this Devise I S hath an estate Taile and begotten Coo. super Litt. 26. shall be intended begotten by him If one devise land to his sonne and his heires and that if his sonne die within the age of 21 yeares or without issue that the land shall Adiudg M. 37. 38 Eliz. Sale versus Geâ—rard remain over and the son dieth within age having issue in this case and by this Devise the sonne hath an estate Taile and or in this place shall be taken for and If land
bee devised to a man and his wife and to one heire of their body and the heire of the body of that heire by this Devise Coo. super Litt. 22. Deed. an estate Taile is made in a Will as well as in a Deed. If a man devise his land thus I give White acre to A my sonne M. 18. Iac. B R. Gilberts case and his heires Black acre to B my sonne and his heires and Green acre to C my sonne and his heires provided that if all my said sons die without issue of their bodies that then all my said lands shall goe to M my wife and her heires by this Devise they have all of them estates in Taile of their land and as it seems crosse remainders to either of them of the land of each other If one devise his land thus I give my land in Dale to I S and if Coâ— 9. 128. he die without issue male of his body then that it shall remain over to I D by this Devise I S hath an estate Taile If a man hath issue three sonnes and devise his land thus viz. one part to two of his sonnes in Taile and another part to his third Litt. Broo. Sect. 4â—â— Broo. Devise 38. Done 44. sonne in Taile and that neither of them shall sell his part but that either of them shall be heire to other in this case and by this Devise either of them hath an estate Taile and if one of them dye without issue his part shall not revert to the eldest but shall remain to the other sonne for it is an implied remainder If there be husband and wife and they have issue a sonne and a Coo. super Litt. 26. daughter and the husband die and land is devised to the wife and the heires of her late husband on her body begotten in this case and by this Devise the wife hath only an estate for life the sonne an estate in Taile and so also the daughter in case he die without issue If one devise to I S that if he and his heires of his body be not For life Coo. supâ—r Litt. 147. 8. 85. paid 20l. rent yearely he and they shall distraine c. by this Devise I S hath an estate taile of this rent But if the Devise be that if I S be not paid 20l. yearly he shall distrain c. by this Devise I S hath only an estate for life So if one devise a rent of 10 l. out of his land to be paid quarterly and say not how long the rent shall continue this is but an estate for life If one devise his land thus I give my land in Dale to I S for his life or to I S without any more words or to I S and his Fitz. Devise 16. Coo. 6. 16. Perk. Sect. 577. heire in the singular number or I S and his children and I S hath children at the time of the Devise or to I S and his successors I S being a naturall person by all these and such like Devises I S hath only an estate for life in the thing devised * Mich. 13. Ia. B. R. Dyer sect 307. But if the Testator have only a Terme of yeares in the land whereof the Devise is made and devise this land to I S and doth not say for what time it seemes that by this Devise the whole Terme is devised unlesse the intent doth appeare to be otherwise And if one devise land whereof a man is seised in Fee to I S paying 10l to I D by this Devise albeit there be no estate expressed yet I S hath the Fee-simple of the land in respect of the paiment of See before Litt. Broo. Sect. 406. 125. the money But if the intent of the Testator appeare to be that I S shall have the land but for his life contra for there the consideraration will not alter the estate expressed upon the gift If land be devised thus I give my land in Dale to I S and his Deed assignes without more words by this Devise is held to be given Coo. super Litt. 9. 4. 29. no more but an estate for life by construction upon a Will as it is upon a Deed. And yet in the New Termes of the Law tit Devise the contraray is affirmed Ideo quâ—re If one devise thus I will that I S shall have and occupy my land Pasche 9. Iac Newmans case in Dale and say not how long by this Devise I S shall have the land for his life * Dyer 342. But if I devise that I S shall enter into my land and say no more by this Devise I S hath no estate at all but power to enter into the land only If a man have a sonne and a daughter and dieth and lands are Coo. super Litt. 2â— devised to the daughter and the heires females of the body of the Father by this Devise the daughter hath only an estate for her life for there is no such person for she is not heire If one devise his land thus I give my land in Dale to I S for Coo. 1. 6â— his life and after to the next right heire of I S in the singular number and to his right heires for ever by this devise I S hath only an estate for life So if one devise land to I S for life and after to the next heire male of I S and to the heires males of the body of such next heire male by this devise I S hath an estate for life only but if it be thus I give my land in Dale to I S for his life and after to the heires or to the right heires of I S by these devises I S hath the Fee-simple of the land And if it be to I S for life and after to the heires males of I S by this I S hath an estate Taile If one devise land to I S and E his wife and after their decease or the remainder to their children by this devise whether they Coo. 6. 16â— have or have not children at the time I S and E his wife have estates for their lives only If one devise a Moity of his land to his wife for life and the other Curiaâ— Ia. Co. B. Moity to his second sonne and after by another clause doth devise it all to his sonne after the death of his wife by this Devise the sonne hath only an estate for life after the wives death and no more If one devise his land to I S in Fee after the death of I B being Broo. Devise 48. 52. Litt. Broo. 107. 13 H. 7. 13. New termes of the Law tit Devise Plow 158. 414. 521. By Implication his sonne and heire apparant by this Devise I B hath an estate for ife by implication and untill the Devise take effect the law gives it to him by discent And so also it seemes the law is where
one doth devise his land to I S after the death of his wife that by this Devise the wife hath an estate for life by implication And therefore if a man devise thus I give my goods to my wife and that after her decease my sâ—nne and heire shall have the house where the goods are it is held by this Devise that the wife hath an estate for life in the house by implication for a man is bound to provide for his own wife But if a man devise his land to I S after the death of I W a stranger to the Devisor it seemes that by this Devise I W hath no estate at all by implication and that this doth but set forth when the estate of I S shall begin and that the intent of the Testator is that his heire shall have it untill that time If one devise land thus I give my land in Dale to I S to the intent Coo. 6. 16. 3. 20. Bâ—oo Estates 78. that with the profits thereof he shall bring up a child or to the intent that with the profits thereof he shall pay to A 10l or to the intent that he shall out of the profits thereof pay yearly 10l by these Devises I S hath only an estate for life albeit the payments to be made be greater then the rent of the land And therefore it is not like to the case before where a summe of money is to be paid presently If one devise his land thus I give my land to Alice my Cosin in Dyer 357. Fee-simple after her decease to W her sonne who is her heir apparant by this Devise she hath an estate for life first the remainder to her sonne for his life the remainder to the heirs of A in Fee-simple And so also is the Law when the Devise is to any other after that manner If my father be tenant for life of land the remainder to me in Fee Dver 371. and I devise this land to my wife rendring for her naturall life 40â— to the right heir of my father by this Devise my wife hath an estate for life after the death of my father If one devise his land unto his Executors untill his sonne shall Fâ—r 〈◊〉 come unto 21 yeares of age the profits to be imployed towards the â—oo 3. 20. performance of his Will and when he shall come to that age then that his sonne and his heires shall have it by this Devise the Executors shall have it untill he be 21 yeares of age and if he die before that time untill the time he should have been 21 yeares of age if he had lived so long and shall in this case shall be taken for should If one devise his land to his Executors for the paiment of his debts and untill his debts be paid by this Devise the Executors have Coo. super â—â—tt 42. but a chattell and an incertaine interest and they and their Executors shall hold it untill the debts â—e paid and no longer If one devise his land to I S and the heires males of his body Coo. 10. in Leonard â—oveis case 87. 46. for the term of fifty yeares it seemes that by this Devise I S hath but a Lease for so many yeares if the heires males of his body shall so long continue and that for want of issue male the terme of yeares shall end And in this case the Executor or Administrator 〈◊〉 not the heirs males of I S shall have it after his death If one devise his land thus I give to I S and I D and their Adiudged Loweâ— versus Câ—xe Mich. 37. 38. â—liz Co. B. Dyer 25. Lit. Bâ—o Seâ—â— 133. Lâ—tt 2â—3 Perk. Sect. 170. Dyer 350. heirs my land in Dale equally or my land in Dale to be equally Fourthly in respect of other 〈◊〉 divided by these Devises I S and I D shall have and hold the land not as â—ointenants but as Tenants in common so that the heire and not the servivor shall have his part that first dyeth And yet in case of such a limitation by Deed it is otherwise And if one devise his land to I S and I D and their heires without more words it seemes that by this Devise they shall take and hold as Joint-tenants * Dyer 326. And yet if one devise land to I S and I D and the heires of either of their bodies lawfully engâ—â—dred it seemes that by this Devise I S and I D shall take and hold aâ— Tenants in common and not as Ioint-tenants * Paâ—che 9. Ia. New mans case And if one devise his land to I S and I D thus I will that I S and I D shall have my lands in Dale and occupy them indifferently to them and their heires If one be possessed of a terme of yeares of land and devise the Hill â—3 Ia. B. R. Adiudged Blandfords case Devise of gâ—ods and chattels same to his wife during all the years and if she die within the years then to A and B his two sonnes if they have no issue male but if they or either of them have issue male then that it shall goe to First in respect of the person that shall take by the Dâ—vise the use of those issues male and she die and the two sonnes die without issue born one of their wives being privily with child of a sonne which after his death is borne in this case and by this devise this issue male shall have it assoone as he is borne If one be possessed of a terme of yeares and he dâ—vise it to another Coo. 10. 4â— Lampets case Perk Sect. 558. 559. and his heires or his heirs males by this Devise the Executors Executors or Administrators not the heirs of the Legatee shall have it And Hâ—ire therefore if Lessee for years of land devise all his interest therein to his wife if she live so long and after her death if any part of the term be to come devise the same to I S his sonne and the heirs of his body in this case and by this Devise the Executors and Administrators of I S not his heires shall have it at least so long as he hath any heires of his body And yet if one possessed of a term of years devise it to I S and after his death that the heir of I S shall have it in this case I S shall have so many years of the term as he shall live and the heir of I S and the Executor of that heir shall have the residue of the term If one give 10 l. to the children of I S and at the time of the Swinb 316. Devise I S hath foure children and after before the death of the Testator he happen to have two more in this case and by this Devise the two children he hath afterwards shall have no part of the 10 l. but those foure he had before shall have