The Exact Law-giver; Faithfully Communicating
Being as a Light unto all the Profeſſors of the Law, as well Counſellors as Atturneys, Clerks, Soliciters, Scriveners, &c. OR A MANƲ-DƲCTIO, Or a Leading, as it were, by the hand, all ſuch, both of the Gentry or Laity (as deſire to be Inſtructed how to gain or preſerve their Eſtates from the hands of their cruell Adverſaries) to the Perfect Knowledg of the Common and Statute Law of this Nation.
Ratio cum eſt in mente hominis confirmata & conferta lex eſt, & lex eſt radius divini luminis.
LONDON, Printed for Thomas Baſſett in St Dunſtans Church-yard in Fleet-ſtreet. 1658.
THis Book being an Antient Manuſcript coming to my hands, which through my own ſmall skill in the Law, perceiving it to be an Ingenious thing, yet deſiring to bring it to the Teſt, I do aſſure you the grave Judgment of ſuch as were profound in the Knowledg of the Law, with me not only approved of it, but highly Commended it, for an Ellaborate and Learned Treatiſe, adjudging it a thing worthy to be Publiſhed for the good of the whole Nation. Theſe lively Characters of the goodneſs of the Book, agreeing with, and as wonderfully reliſhing with my Genious, being very ambitious to do ſomething that might manifeſt to my ſelf the filial love I bear unto my Country, I reſolved to publiſh it, (but incognito) eſteeming him the Charitableſt man that diſpenceth his Larges freely, but privately.
Another Reaſon that I do not atteſt it with my Name, is; becauſe I am no waies greedy of the worlds applaus, adjuding it as little worth. And if it be objected why I do not ſet my Friends Name to it, whoſe Script it was, I make this my Anſwer and Apology, That I am not of their minds, who to get themſelves or their Friends a great applaus with the common people, matter not what wiles or crafts they uſe, ſo that they can any wiſe bring their device about.
But of the contrary Opinion am I, deteſting ſuch abſurdities, who as I muſt ſay the truth, do acknowledg that I am not throughly convinced in my mind, that my Friend, in whoſe Library I found this (Script) did make or Compoſe it, and therefore I would not preſume to affix his Name to any thing that ſhould not be abſolutely his; and the ſmallneſs of the thing beſides would have raiſed a Quaere, fi I ſhould have had ſuch a thought.
Howbeit, being carried with a great deſire of hearing Commendations of the thing, and thereby to be greatly delighted; imagining the Praiſes of it to be the juſt Deſerts of my worthy Friend and ſuppoſed Author, I was neceſſitated, as it were, what by my own deſire to do my Country good, and what by the great Commendations ſeverall Eminent Practiſers of our Law gave of it, to cauſe it to be put in print, which being done, I repreſent it to the open View of all men, wiſhing them Candidly to peruſe it, not doubting but they will find it anſwer their deſires, to their great Uſe and Benefit. But knowing on the other ſide, that many wil be apt to ſpurn, if they find the leaſt (Iota) wanting, I wiſh them to remember Nemo naſcitur ſine crimine; I crave the favourable Conſtruction of all ingenious Perſons, and for the (Malevilous) and Caterpillers of our Age, which will not be content with any thing, I leave as I find. Vale.
THere is no Jewel in the world comparable to Learning;The Excellency of the Common Law of England. no Learning ſo excellent both for Prince and Subject, as the knowledge of Laws; and no knowledge of any humane Laws ſo neceſſary, as of thoſe under which we are ſubject; And if we reſpect the goodneſs of Law in general, we ſhall2 find none ſo neceſſary for all Eſtates, and for all Caſes, concerning Goods, Lands or Life, as the Common Laws of England: And ſuch is the judgement of the Honourable the Lord Coke, and other famous Sages of our Law, the very eccho of whoſe words are of ſufficient power to engraff (an honourable reſpect thereof) in the mind of any ingenious perſon.
And that the conceited Noveliſts and malevilous ſpirits of theſe our times (who ſpurn at any thing of Antiquity) may be infatuated in their opinions, and withdrawn from their raſh and overmalepert cenſure of our Common Law, let them conſider the Reaſons which induced thoſe Worthies to their high eſtimation and value of our Common Laws of England.
For (ſay they) if the ancient Laws of this noble Iſland (viz.) England, had not excelled all others, it could not be but ſome of the ſeveral Conquerours and Governours thereof (that is to ſay) the Romans, Saxons, Danes, or Normans, but eſpecially the Romans, (who as they juſtly may) do boaſt of their Civil Laws, would, as every of them3 might, have altered or changed the ſame: And this alſo is the opinion of the Honourable Sir John Forteſcue, the Lord Coke, and many more.
Yet notwithſtanding theſe Honourable Vouchers of the Excellency of our Common Law, one Zoilus or other never leaves carping at it, though thereby they do but diſplay their own ignorance and folly, even as the Flie which never leaves ſpurning at the Candle till it burns its own wings.
And of ſuch kind are thoſe firſt of all, who exclaim againſt the Law, becauſe writ in an unknown tongue (when as their object ſhews a worthineſs in it) For as all humane things are excellent by their order, ſo the Common Law of England hath ſome luſtre by its proper and peculiar language, yea and is tranſcendent in its order, to all humane Sciences in the world: When we conſider that the true genuine ſenſe, and fullfraught phraſe of our Common Laws of England cannot be ſo well expreſt, nor any Caſe in Law ſo ſuccinctly ſenſible, and withall ſo fully reported and demonſtrated, as in that ſpeech our Anceſtours firſt taught it to ſpeak, viz. that4 trinal compoſition and connexture of three Languages, viz. Engliſh, Latine and French.
Which reaſon ſurely (ſaith a Reverend Judge) hath not been well underſtood by thoſe, who object it as a fault to the profeſſors of the Law, who ſay, They write the Books of Law in a ſtrange Language, which none can underſtand but themſelves, that thereby the people might be kept in ignorance, and they the more admired and eſteemed: And (ſaith Cicero in his firſt Book de Oratore) were held of the firſt Profeſſours of the Romans Civil Law, Quia veteres illi qui huic ſcientiae praefuerunt, obſtinendae atque augendae potentiae ſuae cauſa per vulgari artem ſuam noluerunt.
But the weakneſs of this Objection doth manifeſtly appear, in that there is ſuch a facility in the reading and underſtanding of the Law French; For none can deny but that it may be learnt in a week or fortnights time without a teacher: So that it may boldly be ſaid in honour of the Common Laws of England, That there is no rational Science in the world, having ſo many words and5 terms of Art, whoſe Caſes, Arguments and Judgements are expreſſed and delivered in a form of ſpeech, ſo plain, ſo ſignificant, and a tongue ſo ſoon learned as our Common Laws of England.
The alteration of which hath brought in innumerable Petifoggers and Splitters of Cauſes, (as they may well be called,) who by the reading of two or three Law-books in Engliſh, dare take the preſumption to infatuate and delude ignorant people, under the notion of being cunning in carrying on of buſineſs (which if they be) it is meerly in the nature of the horſleech, to ſuck them dry that imploy them; and beſides through their ignorance of the true ſenſe of the Law, they undo many a Cauſe, which good Councel might have ſaved.
Secondly, Our Laws are villified with the aſperſion of uncertainty and unneceſſary delayes in its proceedings, when we all know, That the Law is but a Rule of Reaſon, and humane Reaſon being pliable every way, not onely the knowledge of our Law, but all other rational Sciences in the whole world which are6 ſubject to argument and diſcourſe, muſt needs be ſubject to uncertainty and errour: Yet if we will take the honourable the Lord Coke's Teſtimony, there is no Art or Science which dependeth upon diſcourſe of reaſon, ſo little ſubject to divers Interpretations as our Common Law of England; and this he ſpake by his own experience, as in the Epiſtle to the ſecond part of his Reports he tels us, That in all his time there was not moved in the Courts of Juſtice in England two Queſtions touching the Right of Deſcents or Eſcheats, or the like fundamental points of the Common Law; So certain, ſure, and without queſtions are the principles and grounds thereof. And furthermore it will be a confirmation of its certainty and ſure principles, even to admiration, when we conſider with what wonderfull Judgement the grounds of our Laws were laid, which in ſo many hundred years after their eſtabliſhing, do ſtill meet with, and provide for almoſt all the Caſes that can happen in a Commonwealth. And herein alſo doth appear profound wiſdome and ſimplicity in their eſtabliſhing, in that the grounds7 hereof are ſo clear and plain, that whereas the Civil Law, which is ſo highly eſteemed is fain to have gloſs upon gloſs, even to a great number; for the true underſtanding of the Text of their Law, when the Text of the Common Laws of England, which hath continued ſo many hundred years, hath had but one Commentary upon its Text, viz. the Lord Coke's Commentary on Littleton, which contains the principal grounds of our Common Laws. So that it plainly appears, That the Judgement and Reaſon of the Common Law of England is more certain then any humane Laws in the world beſides. And for Delayes, though the Law and Lawyer chiefly be blamed, yet the main cauſe of Delayes ariſe from the ſtomackfulneſs and perverſneſs of Clyents, who are of that contentious diſpoſition, that they will ſpend all that ever they are worth, ſo they may have their wils, and through their own refractorineſs and perverſe humours will reverſe Judgment after Judgement, and Decree after Decree, ſtanding by their good wils to nothing which the Law awards; And indeed there be too many of theſe8 melevolous ſpirits, who cannot be content to undo themſelves, but will ſtrive alſo to ruine others, and not only ſo, but will ſtrive alſo to ruine others, and not onely ſo, but ſtrive to defame the learned and honeſt Council, becauſe the Cauſe went againſt them, when as it is the uprightneſs of the Law, which diſtinguiſheth right from wrong.
And furthermore our legal proceedings are ſo contrary to the common conceived opinion that almoſt any cauſe in the Common Law being orderly purſued may come to a period in a year, whereas in France (as Bedin teſtifieth) the like will ſcarcely be in thirty years. And laſtly, for the malediction of all frivilous Objections, and in honour of our Nation: There is no Nation in the world (ſayes a learned Judge) that hath a courſe of Juſtice ſo ſpeedy, and withall ſo commodious and eaſie for the Subject, as our Trials of Aſſize, and niſi prius are; for Juſtice the Lady and Queen of all moral vertues, makes her progreſs twice in a year throughout every Country in the Land, ſo that the Fountaines of Juſtice are conveyed even home (as it were) to our very doores.
9And now having ſhewed you the Antiquity, Eminency, and Perfection of the Common Laws of England, I ſhall in the next place ſay ſomething of the learned Profeſſors thereof.
AS I have demonſtrated unto you by infallible Reaſons and ſufficient Witneſſes the worthineſs of our common Law,Of the Profeſſors of the Law. diſperſed the grand Objections which have riſen againſt it, ſo ſhall I in this place ſtrive to vindicate the learned Profeſſours thereof from the unjuſt calumnies aſperſed againſt them. And
Firſt of all, It is objected againſt them, as it was againſt the Law it ſelf, that they are the cauſe of long and tedious Suites in that they wittingly and willingly take upon them bad Cauſes, knowing them to be unjuſt when they are firſt conſulted with and retained; And that a bad Cauſe never wants a10 Councellor to defend it, and ſuch like. To which I anſwer, that the learned Profeſſor may be able to give judgment upon moſt Cauſes at their firſt commencement, and may know right from wrong, this I ſay they may do, and yet not wittingly maintain a bad Cauſe: for it is to be conſidered, that the Counſellor hears but one mans Cauſe only; and to be ſure the Clyent will make his own Cauſe good: How then ſhould the learned Counſellor be able to diſtinguiſh right from wrong, untill it be known what can be alledged and proved by either party: how then can it be ſaid that the Councell maintains an unjuſt Cauſe, when he knows not how the Caſe will be, till he had made his utmoſt defence? Secondly, This Objection will be invalid, if we conſider how tender our Judges are of the reputation of the profeſſion of the Law, by branding (as it were) with infamy all ſuch as give ſiniſter Councill, or too boldly defend a bad Cauſe, ſo that ſeldom or never are ſuch permitted to riſe to any higher degree in the Law; and this is the teſtimony of one of our famous Judges: and for the Attorneys11 or practiſers, they are commonly caſt over the Barr, and detained from practice upon their default; ſuch great care is taken to ſuppreſs diſhoneſty amongſt the profeſſors of ſo Honourable a Science. So now ſeeing that there is no juſt Cauſe of ſuch aſperſions, which I hope few can deny; yet if they do, I am ſure they muſt allow, That all men, at all times, and in all places, do ſtand in need of juſtice, which is the Law, for Law is but the rule of juſtice, and without her ſupport the Noble man cannot maintain his Honour, nor the ſubject his liberty; nay, without her no man living, either virtuous or vicious, can enjoy his life or any thing that makes his life delightfull: If the Law then merits ſo much of all mankind in generall, (for that it is the fountain of all our benefits;) what do the profeſſors of this Law then deſerve, which draw theſe benefits out of this fountain, and convey the ſame to every one of us: for the Law being only a rule to meaſure the actions of men, the rule cannot meaſure unleſs applied by the hand of the Architect: and Cicero defining the Law ſayes; It is mutus12 Magiſtratus, even dumb and ſpeaks not but by the tongue of a learned and eloquent Lawyer; deaf and heareth no complaints but by the ear of a grave and potent Judg; blind and ſeeth not, but by the eye of a watchfull and diligent Officer: ſo that without theſe Interpreters of the Law, viz. the learned Profeſſors thereof, there can be no uſe or application of the Law, and conſequently the Law and Juſtice it ſelf cannot conſiſt without them.
Thus have I briefly treated of the Law and Lawyers, anſwering to all the Objections that might be brought againſt the one or the other. In the next place I will lay before you the definition of the Law, that from thence we may proceed to the ſtructure it ſelf.
LAw is defined by our Anceſtors and others,What Law is. to be that which commands thoſe things which are to be done, and13 forbids their contraries.
2. To be the rule of all morall Acts, obliging to what is right, and is the conſervation of Juſtice, which is a conſtant and perpetuall will to give every one his own.
3. The precepts of Law are, as Bracton ſaith, to live honeſtly, wrong no man, give every man his own, and the like.
4. The Law is the direction and adminiſtration of Juſtice and Injuſtice, is (as the Emperour Juſtinian ſaith) a conſtant and permanent will to render every perſon his right; and duty.
5. Demoſthenes the renowned Orator, defines it to be the gift of God as well as the Decrees of Learned men; and ſo likewiſe Chryſippus an excellent Philoſopher begins his book of Laws; The Law, ſayes he, is King of all as well divine as humane Offices, the Preſident and Councellor of all things, honeſt or diſhoneſt; Captain and Ruler of the juſt and unjuſt; and is of ſeverall natures, as well the commander of what they ought to do, as the forbidder of what they ought not to do; it is that only which diſtinguiſheth right from wrong; for (ubi Lex non14 diſtinguit nec nos diſtinguere debemus.) Thus you ſee how joyntly and ſeverally our moſt famous Anceſtors have defined Law unanimouſly agreeing; That it is a fortreſs for the weak to retire unto; a ſanctuary for the oppreſſed to fly unto; reſtraining the boldneſs of the inſolent; tying (as it were with manacles) the hands of the potent, and like Orpheus Harp, charming the fierceneſs of the Lyon or Tyger, ſo as the poor Lamb may lie in ſafety by them.
And now having thus moderately diſcourſed of the Law, and the Profeſſors thereof, I ſhall henceforward ſpeak of ſeverall fundamentall parts both of the Common and Statute Law of this Nation.
YOu ſhall therefore underſtand, that whoſoever hath any Eſtate in Lands or Tenements, either he hath in the ſame only a Chattell, or a Free hold,15 or an Inheritance;Chattell. if he hath an Eſtate but for terme of certain years, or at his Landlords will, then it is called a Chattell; if for terme of his life, or for any other mans life, it is called a Free-hold;Free-hold. and if he hath to him and to his heirs in fee-ſimple or in taile,Inheritance. then he hath an Eſtate of Inheritance.
TEnant for terme of years, is he to whom Lands or Tenements be let for terme of certain years, as is agreed between the Landlord and the Tenant, and when the perſon to whom ſuch Leaſe is made, doth enter by force of the ſaid Leaſe, and is in poſſeſſion of the ſame, then he is called a Tenant for terme of years. And here ye ſhall note, that if the Leſſour that made the Leaſe,Rent reſerved. hath reſerved unto him a yearly Rent upon the ſaid Leaſe, as it is accuſtomably uſed to be done; if the Rent be behind and unpaid, it ſhall be in his16 lection either to enter and diſtrain for the Rent,Action of Debt. or to bring an Action of Debt againſt the Tenant for the arrerages of the ſame:A good Plea. But in this caſe it is requiſite that the Leſſour were ſeized of the Lands or Tenements at the time of the making of the Leaſe, for otherwiſe it ſhall be a good Plea in the Action of Debt, for the Tenant to ſay, the Leſſour had nothing in the Lands and Tenements at the time of the Leaſe made, except the Leaſe were made by Deed indented, for then the Plea ſhall not be in the Tenants mouth to plead.
And it is to be known,Livery of Seiſin needeth not in a Leaſe for terme of years. that in a Leaſe for terme of years, whether it be by Deed or without Deed, there need no livery of ſeaſin to be made to the Leſſee, but he may enter when he will by virtue of his Leaſe, without any further ceremony of the Law.
And if a man leaſeth Lands for terme of years, though the Leſſour chanceth to die before the Leſſee doth enter, yet he may enter well enough, otherwiſe it is where livery of ſeiſin is to be made as in Free-holds and inheritances.
Alſo if the Tenant for years doth waſte,Waſte. the Landlord may bring an17 Action of Waſte againſt him, and ſhall recover the place waſted, and his treble damages.
Alſo if a Leaſe for years be made of two ſeverall things, and after the one is recovered, the Leſſee ſhall hold the other, and the rent or farme ſhall be apportioned, M. 12. H 8.
Alſo if the Tenant for years granteth a greater eſtate in the Land then he hath himſelf, whereby he conveyeth the fee-ſimple to himſelf,Forfeiture he ſhall forfeit his Leaſe or terme.
TEnant at will, is he to whom Lands or Tenements be leaſed, to have and to hold the ſame at the will of the Leſſour, and in this caſe the Leſſour may put out his Tenant at what time he liſteth; but yet nevertheleſs if the Tenant have ſowed the grounds with Corn, in this caſe if the Leſſour will enter and put out his Tenant before18 harveſt, the Law will give him free coming and going to reap and carry his Corn away, without any puniſhment or damages to be ſuſtained for his ſo doing, becauſe he knew not at what time the Leſſour would enter: but otherwiſe it is of Tenant for certain terme of years; for if he ſoweth the ground, and his terme of his Leaſe be come out, and expire before the Corn be ripe, in this caſe the Leſſour, or he in the reverſion, may enter and take the Corn, becauſe it was the folly of the Tenant to ſowe the ground, knowing the end of his terme.
So likewiſe Tenant at will ſhall have free coming and going after the time of the Leſſours entry, to carry away his houſhold ſtuff and goods, for a reaſonable ſpace.
Ye ſhall alſo underſtand, that he that maketh a Leaſe at will, may reſerve an annual or yearly rent;Diſtreſs or action of Debt. in which caſe if the rent be behind, he may enter very well, and diſtrain the Goods and Chattels of the Tenant, or at his election he may bring an Action of Debt againſt him.
Alſo it is to be known, that a Tenant19 at will of a Houſe or Tenement, is not bound by the order of the Law, to ſuſtain and repair the Houſes that be decayed and ruinous, as is the Tenant for years, and therefore no Action of Waſte lieth againſt him:Waſte. yet if he will do wilfull waſte, as if he plucketh down the Houſes, or cutteth down the Trees, it hath been thought by the Sages of the Law, that the Leſſour may bring an Action of Treſpaſs againſt him, and ſhall recover his loſſes thereby ſuſtained.
And if ſuch a Tenant die, and his Heir enter, in that caſe the Leſſour may have an Action of Treſpaſs againſt the Heir for his entrie. Treſpaſs.
THere is another kind of Tenant at Will which is called Tenant by Copie of the Court Rolles, and this is when a man is ſeiſed of a Mannour, within which it hath been uſed time out of minde, that the Tenants within the20 bounds and precinct of the ſaid Mannour, have holden Lands and Tenements to them and to their Heirs in fee-ſimple, ſee-taile or for terme of life, at the will of the Lord, according to the cuſtome of the Mannor, and ſuch a Tenant cannot alien or ſell his Land by his Deed; for if he doe, the Land or Tenement that is ſo alienated and ſold, is forfeit into the Lords hands: but if he will alien his Copyhold-Land to another, he muſt according to the cuſtome, come into the Lords Court,Surrender. and there ſurrender it into the Lords hands, to the behoof and uſe of him that ſhall have the Eſtate; the form of which Surrender is commonly uſed to be thus:
Ad hanc curiam venit A. de B. & ſurſum redidit in eadem curia unum meſvagium,The form of a Surrender. &c. in manus Domini ad uſum C. de D. & heredum ſuorum vel heredum de corpore, &c. Et ſuper hoc venit praedictus C. de D. & eripiet de Domino in eadem curiâ meſvagium praedictum habendum & tenendum ſibi, &c. ad voluntatem Domini ſecundum conſuetudinem Manerij faciend inde redditus ſervitia & conſuetudines inde juris debita & cenſuetas, &c. & dat Domino pro fine, &c.21 & fecit Domino fidelitatem.
Theſe, as I ſaid, be called Tenants by Copy of Court Roll, becauſe they have none other Evidence to ſhew concerning their Lands, ſave only the Copies of the Rolls of their Lords Court.
Neither can theſe Tenants ſue or be ſued for ſuch Lands, but in the Kings Court by Writ or otherwiſe; but if they will in any wiſe implead or ſue others for ſuch Copie Lands, they muſt do it by way of plaint in the Lords Court after this form:
A. de D. queritur verſus C. de D. de placito terrae,The form of the Plaint. videlicet de uno meſvagio 46 acris terrae, 4 acris prati, &c. cum pertinentiis & facit proteſtationem ſequi quaerelam iſtam in natura brevis Domini Regis aſſiſae mortis anteceſſoris ad communem Legem pol '&c. Plegij de proſequendo F.O. &c.
Now although ſome ſuch Tenants have an Inheritance according to the cuſtome of that Mannor, yet in very deed they are but Tenants at the will of the Lord: for (as ſome men think) if the Lord will expell them and put them forth, they have no remedy at all but to ſue unto their Lord by way of Petition,22 deſiring him to be a good and gracious Lord unto them: for if they might have any remedy by the Law, then ſhould they not be called (ſay they) Tenants at the will of the Lord after the cuſtome of the Mannor: but other men of no leſs Learning and prudence, have been of contrary judgment, as Lord Brian Chief Juſtice in the time of King Edward the fourth, whoſe opinion was alwayes, that if ſuch a Tenant by the cuſtome (paying his Services) be ejected and put forth by his Lord without cauſe reaſonable,Action of Treſpaſs. he may very well bring and maintain an Action of Treſpaſs againſt his Lord at the Common Law, as appeareth Termino Hillarij An. 21. E. 4. Alſo Lord Danby Chief Juſtice likewiſe was of the ſame judgment, as appeareth Termino Mich. An. 7. E. 4. where he ſaith, That the Tenant by the cuſtome is as well Inheritable to have his Land after the cuſtome, as is he that hath a free-hold at the Common Law: but the determination of this queſtion I remit to my great Maſters, which can loſe the knots and ambiguities of the Law, foraſmuch as yet ſtill of this matter, Cauſidici certant & adhuc ſub judice lis eſt.
23Alſo ye ſhall underſtand, that the uſage of ſome Mannor is, when the Tenant will ſurrender his Land to the uſe of another, that he ſhall take a Wand or a Rod in his hand, and deliver it to the Steward of the Court, and the Steward ſhall deliver the ſame Wand in name of Seiſin, to him that ſhall take the Land, and ſuch a Tenant is called Tenant by the Verge. Divers other cuſtoms there be of ſurrendring of Copyhold Lands, which here for tediouſneſs I will omit: And foraſmuch as Tenants by cuſtome of the Mannor have by the courſe of the Common Law no free-hold; therefore they be called Tenants of baſe Tenure. Baſe Tenure.
Alſo if ſuch a Tenant letteth to farme his Copyhold Land, for longer time then a twelve moneth and a day without the Lords licence, it is a forfeiture of his Land to his Lord.
And know ye, that if this Tenant fell any Timber that groweth upon the Land, but only for the reparation of the ſame, this is Waſt and a forfeiture of his Copyhold.
Hitherto have I treated of the firſt member of our diviſion, that is, to wit24 of Chattels; for (as I ſaid) all Leaſes for terme of years and at will, be accounted in the Law but as Chattels, and be compriſed under that name, ſave that theſe be called Chattels reals, whereas Kine, Oxen,Chattell reall and perſonall. Horſes, Money, Plate, Corn and ſuch like, be called Chattels perſonals: Now we will proceed to the explanation of the ſecond member, that is to ſay of Freeholds.
FReeholds or Frank-tenements a man may have in ſundry wiſe; for either he is ſeized for terme of his own life, or for terme of another mans life; if he be ſeized for terme of his own life, either he hath gotten ſuch eſtate by way of Purchaſe, or elſe the Law hath intituled him thereunto: I call it by purchaſe, whether he cometh unto it by his own bargaining and procurement, or by the gift of his friend: and I call it by the operation of intituling of the Law,25 when a man marrieth a woman that is an inheritrix, and hath iſſue by her,Tenure by the Courteſie. and ſhe dieth, now ſhall he have the Lands during his life by courſe of the Law, and ſhall be called Tenant by the courteſie of England.
Likewiſe if a man be ſeized in fee-ſimple or fee-taile of Lands, and taketh a wife and he dieth, the Law giveth unto the wiſe the third part of her husbands Lands for terme of life,Tenant in Dower. and ſhe ſhall be called Tenant in Dower.
TEnant for terme of Life, is he that holdeth Lands or Tenements for terme of his own life, or for terme of anothers life; howbeit the moſt frequent and common manner of ſpeaking is, to call him that hath an eſtate for terme of his own life Tenant for life, and him that hath an eſtate for terme of anothers life, Tenant for terme, dauter vie, that is to ſay, Tenant for terme of anothers life.
26Ye ſhall note, that like as he that maketh the Leaſe is called the Leſſour, and he to whom the Leaſe is made is called the Leſſee; ſo he that maketh the Feoffment is called the Feoffer, and he to whom the Feoffment is made the Feoffee.
Alſo if the Tenant for terme of life, or Tenant for terme of another mans life doe waſte,Waſte. the Leſſour, or he in the reverſion ſhall maintain very well an Action of Waſte againſt him, and ſhall by the ſame recover trebble damages.
Finally, Ye ſhall underſtand, that by an Act of Parliament made in the 27. year of our Soveraign Lord King Henry the eight, it is enacted, That no Freehold nor eſtate of Inheritance ſhall paſs nor take effect, by reaſon of any bargain and ſale, except the ſame be made by writing indented, ſealed and enrolled in one of the Kings Majeſties Courts at Weſtminſter, or elſe within the County where the Land doth lie, before the Cuſtos Rotulorum, and two Juſtices of Peace and the Clerk of the Peace of the ſame County, or two of them at leaſt, of which the ſaid Clerk ſhall be one, and that ſuch enrolment be made within ſix27 moneths after the date of ſuch writing: and for the enrolment of every ſuch writing, where the Land compriſed therein is not above the yearly value of Fourty ſhillings, they ſhall take two ſhillings, that is Twelve pence to the Juſtices, and Twelve pence to the Clerk; and if the Land be above the yearly value of Fourty ſhillings, then they ſhall take Five ſhillings, that is, Two ſhillings and ſix pence to the Juſtices, and Two ſhillings and ſix pence to the Clerk which ſhall enroll and ingroſs ſufficiently in parchment ſuch Deed and writing; and at every years end he ſhall deliver the ſame to the Cuſtos Rotulorum of the ſame County, to remain in his cuſtody among other Records of the ſame County, ſo that the parties reſorting thither may ſee them: provided that this extend not to any Tenements or Hereditaments lying within any City or Town Corporate, wherein the Majors Records or other Officers have authority, or have lawfully uſed to enroll any Evidences or writings within their Precinct.
TEnant by the Courteſie of England, is he that hath married a Wife inherited; and hath had iſſue by her and ſhe is dead, in this caſe the Law of England permitteth and ſuffereth the husband of ſuch a wife, to receive and keep ſtill all his wives Land that ſhe had either in fee-ſimple or fee-taile ſo long as he liveth, and this is by the curteſie and urbanity of England, for this thing is uſed in none other Country nor Region. But in this it is required, that the Child be vitall, that is to ſay, be born and brought forth into this world alive; and therefore the common ſaying is and hath been, that unleſs the Child be heard cry, the Father ſhall not be Tenant by the courteſie, for the only proof and argument of life in an Infant born, is the vagite and crying. Ye ſhall furthermore underſtand, that unleſs the huſband be in actuall and reall poſſeſſion of his wives Lands, and ſeized of them29 in her right, he ſhall not be Tenant by the courteſie after her death: And therefore if Lands deſcend to a mans Wife, ſo that ſhe is Tenant in the Law, and to every mans Actions, yet if the Husband have not made an actuall entrie during coverture and matrimony between them, he ſhall not be Tenant by the courteſie, for it ſhall be reputed and judged his folly and negligence, that he would not enter in her life time.
Otherwiſe it is of Advowſons, Rents, Commons, and ſuch other things which forthwith when they deſcend, be in man or in a woman, without any entrie or further ceremonie in Law.
Note, That if a Tenant by the courteſie of England, will ſuffer or make any waſte in the Lands or Tenements that he ſo holdeth, he is puniſhable therefore by Action of Waſte brought by him in the reverſion.
Alſo it is to be known, That of things that be in ſuſpenſe, a man ſhall not be Tenant by the courteſie; and therefore if a man be Tenant in fee-ſimple of certain Land, and doth intermarry with a woman that is the Seignioreſs or Lady of the ſame, and hath iſſue by her, and30 ſhe dieth, yet ſhall he not be Tenant by the curteſie of the Lordſhip or Seigniory, becauſe himſelf is Tenant of the Land, and therefore the Lordſhip is ſuſpended for the time, for a man cannot be both Lord and Tenant of one thing; but if he had not been Tenant of Land, he ſhould have had the Lordſhip after the death of his wife by the curteſie of England very well.
Alſo note, That of a right only a man ſhall not be Tenant by the curteſie; as if a woman ſole, ſeized in fee of Lands or Tenements be diſſeized, and after take a husband and they have iſſue, and ſhe die before any reentrie be made, the husband ſhall not be Tenant by the curteſie.
Note further, That of a reverſion a man ſhall not be Tenant by the curteſie; as if a woman ſole ſeized of Land in fee, make a Leaſe to S. for terme of life, after taketh a husband and they have iſſue and ſhe die, living the Leſſee for terme of life, the husband ſhall not be Tenant by the curteſie.
TEnant in Dower, is ſhe that hath been married to a husband that was (during the matrimony between them) ſeized of Lands or Tenements in fee-ſimple or fee-taile, which is now dead, and ſhe ſeized of the third part of her husbands ſaid Lands for terme of her life, for by the Common Law of the Land,Dower at the Common Law. if the husband be at any time during the coverture ſeized lawfully, whether it be by purchaſe or by diſcent, either in fee or in fee-taile, and die, his wife ſhall be endowed by the courſe of the Common Law, of the third foot;Dower by cuſtome. and in ſome places (by an ancient cuſtome) ſhe ſhall be endowed of the Moitie; yea and though the husband were never ſeized actually during the coverture, yet if the Lands be caſt upon him by the Law, ſo that the Law calleth him Tenant to every mans Action, it ſufficeth the woman to demand her dower, for it were unreaſonable that32 the negligence and ſlackneſs of entring of the husband ſhould hurt the wives Title.
Otherwiſe it is as it is ſaid before of Tenant by the courteſie;Tenant by the Courteſie. for if Lands deſcend to a woman covert, and the husband for ſlothfullneſs or negligence doth not enter in his wives life, he ſhall not be Tenant by the courteſie, for by all Laws the wife oweth obedience and ſubjection to her husband, and therefore ſhe cannot compel him to enter: but when Lands diſcend to the wife, the husband only hath power to enter at his pleaſure.
And ye ſhall underſtand, that unleſs the wife be above the age of Nine years at the time of her husbands death, ſhe ſhall not be endowed by the Common Law.
But it is to be known,A Woman ſhall have no Dower. that a woman may by divers wayes eſtoppe and prejudice her ſelf of her dower; as if ſhe commit any crime for which ſhe is attainted of Treaſon, Murder or felony, ſhe ſhall have in this caſe no dower, notwithſtanding ſhe hath obtained her pardon,
Allo if after the death of her husband33 ſhe taketh a Leaſe for terme of life of the ſame Lands whereof ſhe is indowable, ſhe loſeth her dower of the ſame. Moreover if ſhe depart from her huſband, and lieth in adulterie with another man, and is not reconciled again to her husband, without coherſion of the Eccleſiaſticall power, ſhe loſeth her dower after her husbands death; ſhe ſhall be alſo barred of her dower, if ſhe will withhold from the heir, the Charters and Evidence concerning that Land whereof ſhe asketh dower: but none other ſave the Heir can withhold dower for this cauſe. No Dower.
It ought not to be unknown alſo, of what things ſhe may demand dower, and of what things not; of Lands, Meſſuages, Advowſons, Rent-charge, Rent-ſervices, or Seigniories in groſs; or otherwiſe of Villains, of Commons certain, of Eſtovers certain, of Milles and Offices, or of the profit of them ſhe is dowable; but of Commons and Eſtovers ſaus number alſo of Annuities, of Homages of things of Pleaſure, as of Service, of paiment of Roſes and ſemblable, ſhe ſhall not be endowed. Note.
There be yet two other kinds of34 Dower,Dowment ex aſſenſu Patris. the one is called Dowment ex aſſenſu patris, that is to ſay, by the aſſent of the father; and the other is called Dowment de la plus beale part, that is to ſay of the faireſt part: Dowment ex aſſenſu patris, is when the Father is ſeized of Lands in fee ſimple, and his Sonne which is Heir apparant, indoweth his Wife at the Church door when he is eſpouſed, of parcel of his Fathers Lands, with the aſſent of his Father in writing, teſtifying the ſame aſſent; if in this caſe her Husband die, ſhe may forthwith enter into the Land ſo aſſigned unto her, without further procurement of proceſs of Law, although the Father of her ſaid Husband be yet alive, and in actuall poſſeſſion of the Land; but if ſhe thus do, and take her to this endowment at the Church door, ſhe cannot have her Dower alſo by the Common Law of the third part of her Husbands Lands, or any part or parcell of them: Howbeit if ſhe will refuſe this Aſſignment made unto her at the Church door, and demand Dower at the Common Law, ſhe may ſo do v ry well. A man may alſo endow his Wife at the time of the35 Eſpouſals, of his own Lands, the which he hath by his own poſſeſſion, and that Dower is called Dower ad eſtium Eccleſiae, that is to ſay, at the Church door. Dowment ad oſtium Eccleſiae.
Dowment de la plus beale part,Dowment de la plus beale part. that is to ſay, dowment of the faireſt part, ſhall be in this caſe, when a man is ſeized of Lands which he holdeth of another man by Knights-ſervice, and of other Lands which be of Socage tenure, and hath Iſſue which is within the age of fourteen years and die, and the Lord of whom the Land is holden by Knight-ſervice, entreth in the Land holden of him, and the mother of the Child entreth into Socage tenure as Guardian in Socage; if in this caſe the woman will bring a Writ of Dower againſt the Lord which is Guardian in Chivalry, he may plead the ſpeciall Matter, and ſhew how ſhe is Guardian in Socage, and hath ſo much Land, and thereupon pay the Court, that ſhe may be ſuffered to endow her ſelf of ſo much Land being in her own cuſtody, as amounteth to the third part of the whole Lands.
And then the judgment ſhall be, That the Guardian in Chivalry ſhall retain the Land holden of him, quit from〈◊〉36woman during the nonage of the Ward; after which Judgment and Sentence given, ſhe may go, and in the preſence of her neighbours endow her ſelf of the beſt part of that which is in her cuſtody, amounting to the third part of the whole; and then is ſhe called Tenant in Dower de la plus beale.
Finally ye ſhall underſtand,An. 27. H. 8. That by a Statute made in the 27. year of our moſt dread Soveraign Lord King Henry the Eight, it is enacted, That where divers Perſons have Eſtates made to them and to their Wives, and to the Heirs of the Husband, or to the Huſband and Wife, and the Heirs of their two bodies begotten, or the Heirs of one of their bodies, or for terme of both or one of their lives, or any other Perſons and their Heirs, to the uſe of the Husbrnd and Wife, or to the Wife alone for her Joynture, in every ſuch caſe the Woman ſhall not be ſuffered to demand any Dowrie of the reſidue of her Husbands Lands of whom ſhe hath Joynture againſt any Tenant of the Land; but in caſe ſhe hath no ſuch Joynture, then may ſhe demand her••wrie, after the courſe of the Common37 Law: Provided nevertheleſs, that if ſuch Women be lawfully expulſed from their Joynture, or any part thereof, without fraud or covin, then ſhall they be endowed of the reſidue of their Husbands Lands, for as much as the Lands ſhall amount unto, out of which they were ſo expulſed and put forth.
Provided alſo, That if Lands or Tenements be aſſured to any Woman after marriage, for terme of life, or likewiſe in Joynture (except it be by Act of Parliament) and the Wife over-live her her Husband in whoſe time the Joynture was made, in this caſe the Wife may refuſe the Lands ſo appointed unto her in Joynture, and have her Dower at the Common Law, of ſuch Lands as her Husband was ſeized of at any time during the coverture.
Alſo if the Husband committeth Treaſon, Murder or Felony, for which he is attainted, the Wife ſhall not have her Dower.
And note, That if the Husband enter into Religion and is profeſſed, the Heir ſhall enter into the Land, but the Wife getteth no Dower till the Husband dieth. M. 32. E. 2.
38And likewiſe if a man ſeized of Land, taketh a Wife that is an Alien born and dieth, ſhe ſhall not be endowed, except ſhe be made Denizon by Act of Parliament, T. 3. H. 6. And note, That where the Wife bringeth a Writ of Dower and recovereth her right, ſhe ſhall recover no damages, but where her husband died ſeized of the Lands recovered.
HItherto have I ſpoken of Free-holds,Damages. now it remaineth to treat of Inheritances; not the Inheritances that be no Free-holds, for they be Free-holds alſo; but the other Eſtates of which I have hitherto treated, be only Free-holds and of no higher nature; whereas an Eſtate of Inheritance, although it be a Free hold indeed, yet it is not to be called by name, ſith it is after more excellent and greater Eſtate: but ye ſhall underſtand, that of Inheritances39 ſome be of more amplitude and excellent then other ſome be, as that Inheritance which is pure ſimple and without limitation of what Heirs, which kinde of Inheritance is called fee-ſimple: but when I make a limitation of what Heirs, then it is called fee-tayle; and of which alſo be two ſorts, as hereafter more at large ſhall be declared: now therefore the nature of fee-ſimple is ſet forth with our accuſtomed compendiouſneſs.
FEe-ſimple is (as I ſaid) the moſt ample and large Inheritance that can be in this Realm deviſed or invented:Fee-ſimple. it is that which a man hath to him and his Heirs, ſimple without any further limitation: for whether they be of his own body begotten or not, ſo that they be the next of his kinne and within the degrees it ſufficeth.
So then, Tenant in fee-ſimple is he40 that hath Lands or Tenements, whether it be by purchaſe, or by deſcent to him and to his Heirs and Aſſigns for ever: for if a man will purchaſe Lands in fee-ſimple, he muſt needs have theſe words his Heirs in his purchaſe, for theſe be the only words that make the Eſtate of Inheritance. Therefore if Lands be given to a man for ever, and no mention be made of his Heirs, he hath an Eſtate but for terme of his life, becauſe theſe words his Heirs do lack.
Yet nevertheleſs if a man by his Teſtament doth deviſe Lands to another, in ſuch place or caſe where the cuſtom or Law will ſerve ſo to do, although he make no mention of Heirs, but ſaith, that he bequeaths to ſuch a perſon ſuch Lands, to have and to hold to him and to his Aſſignes for evermore, here an Eſtate of Inheritance doth paſſe; for in Teſtaments the will and intent of the Teſtator is to be pondered, and not the formall and preſcript words of the Law.
Alſo theſe termes in the Law, frank-marriage, and frank almoigne, that is to ſay, free marriage and free alms, do include in the words of Inheritance.
41And therefore if I give Lands to a man with my Daughter in frank marriage, without further addition or mention of Heirs, this is an eſtate of Inheritance, as ſhall be declared hereafter more plenteouſly. So likewiſe it is of Lands given to an Houſe Eccleſiaſticall in pure and frank alms. Moreover if Land be given to a man and to his blood, or unto him and to his ſeed, he hath in both caſes an eſtate of Inheritance; for in the laſt he hath a fee-tayl, and in the other a fee-ſimple; for theſe words ſeed and blood, and ſuch like, do imply words of Inheritance.
Alſo if Lands be given to a man, and and to his Heirs males or females, he hath by this gift a fee-ſimple, becauſe it is not expreſſed of what body the Iſſue ſhall come.
But now it is to be ſeen,The half-blood. who be ſaid to be a mans Heirs in the Law: ye ſhall therefore know, that my Brother or Siſter by the half-blood, that is to wit by the Fathers ſide and not by the Mothers, or contrariwiſe by the Mothers ſide and not by the Fathers, ſhall never be mine Heir,A Baſtard ſhall be no Heir. nor none that come of them: neither my baſtard can be mine42 Heir, nor mine own naturall Father nor Mother, nor Grandfather nor Grandmother, can be mine Heir; for it is a principle and ground of the Law,A ground of the Law. That Inheritance may lineally deſcend, but aſcend it cannot; and therefore if I have Lands in fee-ſimple, and die without Iſſue of my blood, my Father cannot be my Heir, but my Fathers Brother or Siſter ſhall; and then if my Unkle or Aunt die ſeized without Iſſue, my Father ſhall have the Lands as Heir to mine Unkle and not as Heir to me, for that cannot be; but it may go from me to my Unkle or Aunt well enough, for that is not called a lineall aſcention, but a collaterall deſcent.
Alſo ye ſhall underſtand,Lineall and Collaterall deſcent. That a lineall deſcent is, when the deſcent is conveyed in the ſame line of the whole blood, as Grandfather, Father and Sonne, and ſo down; and collaterall deſcent is of another branch from above of the whole blood, as the Grandfathers Brother, or Fathers Brother, and ſo deſcending.
And ye ſhall alſo note, That by the Common Law of this Realm, the eldeſt Sonne ſhall have the whole Inheritance, and after him (if he have no Iſſue) the43 ſecond Sonne, and ſo forth: and if I have no Sonnes but Daughters, then ſhall all the Daughters together inherit, which be called Coparteners. Copartners.But if I have no Iſſue at all, neither Sonnes nor Daughters, then ſhall my eldeſt Brother in heritage ſucceed me: but if I have no Brother, then my Siſters, if I have any; if not, my Unkle by my Fathers ſide, if the Lands be of mine own purchaſing, or if they deſcended unto me from my Father: and to be ſhort, if there be none in life of my Fathers ſide, the purchaſed Land ſhall go to my Mothers ſide: and if there can be found no Heir neither by my Fathers ſide nor yet by my Mothers, then ſhall it Eſcheat,Eſcheat. as they call it, to the Lord of whom it was holden; for every Land muſt needs be holden of ſome Lord, as ſhall be hereafter ſhewed. But if Lands deſcend unto me by my Mothers ſide, then if I fail of Iſſue, the Lands ſhall deſcend only to my Heirs of my Mothers ſide, and never to mine Heirs of my Fathers ſide: as on the contrary ſide, if I have Lands or any Tenements by deſcent from my Father or his blood, they ſhall never deſcend to my Heirs by my Mothers ſide.
44And thus you ſee a great difference in this behalf,Diverſitie. between purchaſed Land, and Lands which deſcend from an Anceſtour.
If there be three Sonnes, and the middle Sonne purchaſe Lands, and die without Iſſue, the eldeſt ſhall have the Lands and not the youngeſt.
And it is a principle in our Law,A ground of the Law. That none can be mine Heir of Lands that I hold in the Fee-ſimple, unleſs he be mine Heir by the whole blood, that is to ſay both by Father and Mother; for if a man have Iſſue two or three Sonnes by ſundry Wives, and the eldeſt purchaſeth Lands in fee and dieth without Iſſue, his half brethren (I mean theſe that be not his Brethren both by the Fathers ſide and Mothers ſide, ſhall not have his Land, but it ſhall go to his Unkle: Likewiſe if a man hath by his firſt Wife a Sonne and a Daughter, and by his ſecond Wife another Sonne, and the Sonne by the firſt Wife purchaſeth Lands in fee-ſimple, and dieth without Iſſue, the Siſter-germaine, that is to ſay, both by the Fathers ſide and Mothers, ſhall have the Lands by deſcent, as Heir to her Brother, and not the younger45 Brother, for as much as the younger Brother cannot in this caſe be Heir of his elder Brother, becauſe he is no Brother-germane unto him: Otherwiſe it is of Lands or other hereditaments entailed, as ſhall be hereafter ſpecified.
Alſo if a man be ſeized of Lands in fee-ſimple, and hath Iſſue a Sonne and a Daughter by one Wife, and after the death of his firſt Wife a Sonne by another Wife, and dieth, and the eldeſt Sonne entreth into the Lands, and after he dieth without lawfull Iſſue of his body, the Daughter ſhall have the Lands, and not the youngeſt Sonne, and yet the youngeſt Sonne is Heir to his Father, but he is not ſo unto his Brother. But in this caſe if the eldeſt Sonne hath not entred after the death of his Father, but had died before any entrie made by him, then ſhall not the Siſter-germaine enter, but the younger Brother is Heir to his Father, becauſe the eldeſt Brother was never in actuall poſſeſſion, which is requiſite to the perſon that claimeth to be Heir collaterally.
But to the lineall Heirs it ſufficeth that the Anceſtour ſhould have been Heir if he had lived; I mean as thus: a46 man ſeized of Lands, and hath Iſſue a Sonne and a Daughter by one Wife, and afterwards a Sonne by another, he dieth, and after his death the eldeſt Sonne entreth not but dieth without Iſſue, before he can make actuall entrie, here in this caſe his Siſter ſhall not have the Lands as Heir to her Brother, becauſe her Brother was not in actuall poſſeſſion, but the younger Brother ſhall have them as Heir to his Father: yet if the eldeſt Sonne in that caſe had left behind him Iſſue of his body, whether it had been Sonne or Daughter, this Iſſue, notwithſtanding that the Father of the Iſſue was never poſſeſſed, either actually or in the Law, ſhall have the Lands, and ſhall convey his deſcent from his Father; the cauſe hereof is this, that the Sonne or Daughter is lineall Heir, whereas the Brother, Siſter, Unkle, Aunt, &c. be Heirs collaterall, and ſo ye ſhall obſerve a diverſity. Diverſitie.
I call an actuall poſſeſſion when a man entreth indeed into Lands which be to him deſcended, but a poſſeſſion in Law is called, when Lands be deſcended to a perſon, and he hath not yet really and actually entred into them; for notwithſtanding47 that he is not in actuall poſſeſſion, yet he is poſſeſſed in the Law, that is to ſay,Haereditae quid ſit. in the eye and conſideration of the Law, he is deemed to be poſſeſſed, for as much as he is Tenant for every mans Action that will ſue for the ſaid Lands, or elſe aſſuredly there ſhould enſue an intollerable inconvenience, as we ſhall more copiouſly open in another place. Ye ſhall furthermore underſtand, that this word Inheritance is not only to be accommodate and applied to that which cometh by deſcent or ſucceſſion from a mans anceſtors or predeceſſors, but alſo to every purchaſe in fee-ſimple or fee-tayle.
And note, That a man can have no larger or greater eſtate then fee-ſimple.
YE ſhall underſtand, that before a certain Statute called the Statute of Weſt. ſecond,Weſt. 2. Chap. 1. there was no eſtate tayle, but all was fee-ſimple, either purely48 that is to ſay without condition, or at the leaſt way conditionally,Diviſion. as appeareth by the preſence of the ſaid Eſtatute, but now ſithence the promulgation of the Eſtatute, divers forms of Eſtates Tayle have riſen.
Fee-tayle is, when it is preſcribed and limited in the gift, what ſort of Heirs and by whom engendred ſhall inherit.
As for example, I give Lands to a man and to his Heirs, and go no further, this is a fee-ſimple; but if I make a limitation, and adde of his body begotten, now it is a fee-tayle, that is to ſay, a fee or Inheritance limited, preſcribed, determinate or aſſigned.
So that if I give Lands to a man and to his Heirs, he hath fee-ſimple, but if I give Lands to him, and to his Heirs of his body lawfully begotten, he hath but a fee-tayle, foraſmuch as I appoint, limit, preſcribe and expreſs, what Heirs they ſhall be, and for lack of ſuch Heirs, the gift ſhall be expired and worn out, and the Land ſhall be reverted again to the giver or his Heirs.
But ye muſt obſerve and Note, That there be two kinds of fee-tayle, there is a generall tayle and there is a ſpeciall tayle.
49Fee-taile generall is, where Lands be given to a man and to his Heirs of his body begotten, without any mentioning and expreſſing by what woman they are begotten.
And therefore if a man be Tenant in the generall tayle of Lands,Generall taile. and taketh a wife and hath Iſſue by her and ſhe dieth, and afterwards he taketh another wife, of whom he hath alſo other Iſſue by her, either of theſe Iſſues is inheritable to this Land entayled. But if I expreſs in the gift, by what woman the Heirs ſhall be procreated and ingendered, then it is an eſpeciall tayle: as for example, to make the thing plain;Eſpeciall taile. If Lands be given to a man, and to his Heirs of his body lawfully begotten by Margaret his wife, this is an eſpeciall tayle, for the Iſſue of him begotten by another woman ſhall never inherit by force and vertue of the tayle: Likewiſe it is if Lands be given to a woman, and to the Heirs of her body lawfully begotten (and ſhew not by what man) this is a generall tayle; but if I go forward and ſay by ſuch a man her husband, then it is an eſpeciall tayle.
Alſo if I give Lands to a man and to50 his wife, and to the Heirs of their two bodies lawfully begotten, this is an eſpeciall tayle as well in the husband as in the wife.
Semblable it is if a man giveth Lands to another man with his Daughter or Kinſwoman in frank marriage,Frank-marriage. this word (frank marriage) implieth an eſtate tayle ſpeciall, and in this caſe as well the man as the woman hath an an eſtate in the ſpeciall tayle.
But if I give Lands to a man and to ſuch a woman, and to his Heirs that he hath begot of her, here the woman hath an eſtate but for terme of her life, and the Husband an eſtate in the eſpeciall tayle; and likewiſe it is in the womans behalf, as if I give Land to a man and to his wife, and to her Heirs of her body by her ſaid Husband engendred, he hath an eſtate but for terme of life, and ſhe an eſtate in the ſpeciall tayle; but in both caſes, if I had ſaid to the Heirs, and not to his or her Heirs, then ſhould either of them have had an eſtate in the ſpeciall tayle, becauſe this word Heirs, is as well referred to the one as to the other.
Ye ſhall alſo underſtand, That if51 Lands be given to a man,Deſcent by Heir males. and to the Heirs males of his body, this is an eſtate tayle, and in this caſe the Heir female ſhall never inherit.
Alſo if a man hath Iſſue and dieth, and Lands be given to him and to his Heirs of his body begotten, this is a good eſtate tayle, although the father were dead at the time of the gift. Finally it is to be noted, that of Lands which a man hath in fee-ſimple, the poſſeſſion of the Brother ſhall cauſe the Siſter-germaine, that is to ſay, the Siſter both by Fathers ſide and Mothers to inherit; and in this caſe the Brother by the half-blood ſhall not inherit, as heretofore was ſaid, but of Lands which be entailed: Otherwiſe it is therefore if a man be ſeized of Lands in the generall tayle, and hath iſſue by his firſt wife a Sonne and a Daughter, and alſo a Sonne afterwards by another wife and dieth, and the eldeſt Sonne entreth into the Lands and after dieth, the Siſter-germaine to the eldeſt Sonne ſhall not have the Land, but the younger Brother of the half-blood, becauſe whoſoever ſhall inherit Land or any other hereditaments in tayle, muſt claim them as next and immediate52 Heir, not to him that dieth laſt ſeized of the Lands, but to him to whom the Lands were firſt given unto, whom in the caſe before remembred, is the Sonne and Heir, and not the Daughter.
Thus ye ſhall mark a great diverſity between the form of ſucceſſion in the Lands of fee-ſimple,Diverſitie. and the form in fee-tayle.
WHen Lands, Tenements or other Hereditaments be given to a man and to his wife, and to the Heirs of their two bodies lawfully begotten, if in this caſe either of them chance to die before they have Iſſue between them,Diſpuniſhable of waſte. he or ſhe that overliveth is ſtill Tenant in tayle, but without poſſibility of any Iſſue that can be Heir to theſe Lands or hereditaments thus entayled, and for this cauſe he or ſhe thus overliving, is called Tenant in Tayl after53 poſſibility of Iſſue extinct, for in ſuch a Tenant is all poſſibility of Iſſue that may be inheritable to theſe Lands by force of the gift in tayle utterly extinct or quenched, and by his or her death, the eſtate tayle ſhall expire, ceaſe and be aboliſhed for ever, and ſhall revert and turn again to the giver or donor from whence it came.
Yet foraſmuch as the Tenant after poſſibility of Iſſue had once an Inheritance in him, he ſhall not be puniſhed by an Action of Waſte, though he make never ſo much waſte in the Lands and Tenements, whereas yet in effect he is but a Tenant for terme of life. But if this Tenant doth alien in fee ſuch Lands, he in the reverſion may enter for the forfeiture.
And this for Eſtates at this preſent time ſhall ſuffice:Forfeiture. but to the intent that ye may the more eaſily comprehend all the members of the diviſion of Poſſeſſions and Eſtates, which men have in Lands, Tenements and other Hereditaments, it ſhall not be evill done, to ſet forth as it were in a Table before your eyes the diviſion thereof, which is this:
54HItherunto I have made a compendious and ſhort declaration of Eſtates of all ſorts: but where I ſaid that among Siſters there is no prerogative or preheminence concerning the inheriting of their Anceſtors Lands, but that they ſhall be all together inheritours, and make as it were but one Heir; it is expedient to make a further declaration and proceſs in this behalf, and to ſhew how and in what manner this partition ſhall be made.
But ye ſhall underſtand,Diviſion of Parceners at the Common Law and Parceners by Cuſtome. That there be beſides Parceners at the Common Law which be only Siſters, alſo Parceners by Cuſtome which is amongſt Brothers, contrary to the courſe of the Common Law, and this cuſtome is in ſome places of Rent, and in other places where Lands and Tenements, be of the tenure of Gavelkind.
Ye ſhall therefore kow, That when a man is ſeized of Land in fee-ſimple or56 fee tayle, and hath no iſſue but Daughters, and die, and the Daughters do enter into the Lands thus deſcended unto them, now they be called Parceners or Co-heirs,Writ de partione facienda. and by a Writ called de partitione facienda, brought by one of them againſt the others, they ſhall be conſtrained by the Law to ſuffer an equall partition to be made of the Lands between them.
Now partition may be made in ſundry wayes; one way is, when they themſelves do make partition between them of the whole heritage, and do agree unto the ſame, and do enter every one into her part ſo allotted unto her.
Another way is,Partition in divers manners. when by all their agreements and conſent, one common friend doth make the partition, in which caſe the eldeſt Siſter ſhall have the firſt election, and after her the ſecond Siſter and ſo forth; but if they agree that the eldeſt Siſter ſhall make the partition, and ſhe maketh it, then the eldeſt ſhall not chooſe firſt, but ſhall ſuffer all her Siſters to chooſe before her, as it is thought.
There is alſo another form of partition, which is, equally to divide the Lands into ſo many parts as there are57 Co-heirs or Parceners, and to write every part ſo divided in a ſeverall ſcroule of paper, and ſo put the ſaid ſcroules in a bonet, or to incloſe them ſeverally in balls of wax, and then the eldeſt Siſter to chooſe which ball ſhe will, or to put her hand into the bonet and take a ſcroule, and to hould her to her chance and allotment, and ſo conſequently every Siſter after other.
And ye ſhall note,Nota. That Partition by agreement may as well be made by nude and bare words without writing as by writing.
And if any of the Parceners will not ſuffer any partition to be made, then may the other that would have partition,A writ de partritone facienda. purchaſe a Writ called De partitione facienda, againſt them that refuſe partition, to compell the ſame to ſuffer partition to be made accordingly, and then by the judgment of the Court, the Sheriff by the ſerement and Oath of twelve men ſhall make partition between them, and ſhall aſſign to each Siſter her portion as he ſhall think good, without giving any election of choice to the eldeſt.
And if two Mannors or Meaſes happen58 to deſcend to two Siſters, and the Mannors be not of equall value, then may ſhe to whom the leſs Mannor or Meaſe is allotted, have aſſigned unto her a Rent proportionably out of the other Mannor; for the which Rent, ſhe and her Heirs may diſtrain of common right, though they have no writing thereof.
Finally ye ſhall underſtand,Diſtreſs of Common Right. That if a man be ſeized of Lands in fee-ſimple, and hath Iſſue two Daughters, and giveth with one of his Daughters to another man that ſhall marry her, the third or fourth part of his Land in frank-marriage, and dieth; if in this caſe the Daughter that is in this wiſe beſtowed and advanced, will have her portion of her fathers heritage, ſhe muſt put her Land given unto her in frank-marriage in hochpot new again,Hochpot. I mean ſhe muſt be contented to ſuffer her ſaid Lands to be commixed and mingled with the other Lands of which her Father died ſeized in fee-ſimple, ſo that an equall diviſion may be made of the whole, or or elſe ſhe ſhall have no part of thoſe Lands of which her Father died ſeized; but if her Father had made unto her a59 common gift in tayl or feofment in fee, ſhe ſhould not need to put her Lands in hochpot, but may very well keep and retain them ſtill, and alſo have as good part of the reſt of the Lands of which her Father died ſeized, as her other ſiſter or Siſters have,Frank-marriage. for a gift in frank-marriage is accounted the moſt free and moſt liberall gift that can be, and that gift which the Law judgeth to be only for the advancement and beſtowing of the Daughter; whereas feofments in fee-ſimple, and alſo common gifts in tayle, be accuſtomarily for other cauſes, and for the advantage rather of the giver or feoffer then of the taker.
And if Parceners make partition of Lands being within age, that partition is void.
And if Parceners in fee-ſimple make partition, and the part of the one is better then the other, being of full age of 21. years, then the partition is good and cannot be defeated; but if it be of Lands in fee-tayle, the one part being better then the other, that partition may be defeated by their Heirs.
HItherunto briefly have we ſpoken of Coheirs, called Parceners of the the Common Law, which as is heretofore declared, do come to Lands and other hereditaments joyntly by the courſe, operation and act of the Law. Now ſhall we ſpeak ſomewhat of them that either joyntly or ſeverally come to Lands, Tenements or other Hereditaments, by their own purchaſe, act, procurement and working; and of theſe they that come to them by joynt title way or colour, be called joyntenants, but they that come by ſeverall titles, wayes or colours, to Lands or Tenements, be named Tenants in common.
So then if a man being ſeized of Lands or Tenements,Tenants in common. or other Hereditaments, ſhall thereof enfeoff two, three, four or more, to have and to hold to them in fee-ſimple, fee-tayle, or for terme of their lives, or for terme of anothers life, theſe perſons ſo enfeoffed and ſeized, be61 called Joyntenants alſo; alſo if two or more do expell and diſſeize another man of any Lands or Tenements, to their own behoof and uſe, theſe diſſeizors and wrong doers, are now become Joyntenants, becauſe by their own act they come joyntly to this Land; but if they do diſſeize another man to the uſe only of one of them, in this caſe they be not Joyntenants, but he to whoſe uſe the diſſeizin is made, is Tenant alone of the ſame, and the others have nothing in the tenancy, but be called aydours or coadjutors to the diſſeizin.
And ye ſhall underſtand,Diſſeiſin. Survivour taketh place. That a Diſſeizin is properly where a man entreth into any Lands or Tenements there where his entry is not lawfull, and putteth out him which hath the freehold of the ſame.
And ye ſhall further know, That the nature of Joyntenancy is, that he which ſurviveth and overliveth the other, ſhall have to himſelf alone the whole and entire tenancie, according to that eſtate which he ſhould have had if the joynture had been continued: as for example, three Joyntenants be of Lands in fee-ſimple, and the one half hath Iſſue and62 die, in this caſe the two which do overlive their fellow, ſhall have the whole Lands between them, and the Iſſue of him that is departed getteth nothing; and if the ſecond Joyntenant hath Iſſue alſo and die, the third which hath overlived them both, ſhall now have and enjoy the whole to him and to his Heirs for evermore.
But otherwiſe it is of Coheirs,Diverſitie. which in our Law are called Parceners; for if there be three ſuch Coheirs and Parceners, and before any partition made, the one have Iſſue a Sonne or a Daughter and dieth, her portion ſhall deſcend and fall to his child, and ſhall not runne amongſt the other joynt-heirs or Coparceners; howbeit if ſuch Parcener or Coheir had died without Iſſue, then ſhould his portion have deſcended to his Coheirs; but how? not by force of ſurviver or overliving, which in Latine is ealled jus acreſcendi, but by very deſcent; for where any of the Coheirs die without Iſſue, who can be Heir to him or her ſo dying, but the other Coheirs to him or her ſo dying, or the reſt of the Coheirs if there be many?
And like as this right of ſurvivor or63 overliving holdeth place amongſt Joyntenants of Lands and Tenements, ſo in like manner it holdeth place amongſt them which have joynt eſtate or poſſeſſion with others, of Chattels whether they be reall or perſonall; as (for example) if a Leaſe of Lands or Tenements be made to many for terme of certain years, the overliver or overlivers ſhall have the whole during the terme by force of the ſame Leaſe;Joyntenants of reall and perſonall goods. ſo of Chattels perſonall; if an Horſe, Oxe, grain or other ſuch perſonall Chattell be given to many, he which overliveth ſhall have the ſame alone; in ſemblable wiſe it is of Debts and duties; for if an Obligation be made to many for one debt, and of ſome other Covenants and Contracts the Law is likewiſe ſo.
Alſo ſome Joyntenants may be which may have joynt eſtate and be Joyntenants for terme of their lives,Joyntenants of ſeverall Inheritances. and yet have ſeverall Inheritances; as where Lands be given to two men, and to the Heirs of their two bodies engendred, in this caſe theſe two perſons have joynt eſtate for terme of their two lives, and yet they have ſeverall Inheritance; for if the one have Iſſue and die, the other64 that ſurviveth ſhall have all by force of the ſurvivour for terme of his life, and if he that ſurviveth hath alſo Iſſue and die, then the Iſſue of the one ſhall have the half of the Lands, and the Iſſue of the other ſhall have the other half, and they ſhall hold the Land between them in common, and ſhall not be Joyntenants but Tenants in common;Tenants in common. and the cauſe and reaſon why ſuch Donees in ſuch caſes have a joynt eſtate for terme of their lives is, for that at the begining the Lands were given to them two; which words without more ſaying, make a joynt eſtate to them for terme of their lives; for if a man will let Land to another by Deed or without Deed, not making mention what eſtate he hath, and of this maketh livery of ſeiſin, in this caſe the Leſſee ſhall have an eſtate for terme of his life; and if he have no livery of ſeiſin, he is Tenant at will, and ſo foraſmuch as the Lands were given unto them, they have a joynt eſtate for terme of their lives; but the cauſe why they have ſeverall Inheritance is this, for that they cannot by poſſibility have an Heir between them engendred as a man and a woman may have; wherefore the65 Law will that their eſtate and their Inheritance ſhall be ſuch, as reaſon will after the form and effect of the words of the gift, and that is to the Heirs that the one engendred of his body by and of his Wives, and to the Heirs that the other engendreth of his body by any of his Wives; ſo it behoveth by neceſſity of reaſon, that they have ſeverall Inheritances; and in ſuch caſe, if the Iſſue of one of them after the death of them both doth die, ſo that he hath no Iſſue alive of his body engendred, then the Donor which gave the Land, or his Heirs may enter in the half as in his reverſion, though the other hath Iſſue alive; and the cauſe is, that foraſmuch as the Inheritances be ſeverall, therefore the reverſion in the Law is ſevered, and the ſurvivour of the Iſſue of the other ſhall hold no place to have the whole; and as it is ſaid of Males in the ſame manner, it is where Lands, be given to two Females, and to the Heirs of their two bodies begotten.
Alſo if Lands be given to two,Survivor holdeth no place. and to the Heirs of one of them; this is a good contenancy, and the one hath a freehold, and the other hath a fee-ſimple,66 and if he which hath fee-ſimple die, he that hath the free-hold ſhall have the whole by the Survivor for term of his life.
And if theſe two Joyntenants, joyn in a gift in the tayle to a ſtranger, reſerving a Rent to him that hath an eſtate but for his life; this reſervation is void to make a Tenure: likewiſe it is where Tenements be given to two, and the Heirs of the body of one of them engendred, the one hath a free-hold, and the other fee-tayle.
Note,Rent-charge granted by a joyntenant. If two Joyntenants be ſeized of an eſtate of fee-ſimple, and the one granteth a Rent-charge by his deed to another, out of that which to him belongeth, in this caſe during the life of the graunter, the Rent-charge is good and effectuall; but after his deceaſe, the Rent-charge is void, as to charge the Lands, for he that hath the Land by the Survivour, ſhall hold all the Land diſcharged; the cauſe is, for that he that ſurveieth claimeth to have the Land by the Surviour and not by diſcent of his fellow,Diverſitie. but otherwiſe it is of Parcener or Co-heirs, for if there be two Parceners in fee-ſimple, and before any partition67 be made, the one chargeth that that to him belongeth by his deed of a Rent-charge and dieth without Iſſue, here that which to him belongeth deſcendeth to the other Parcener; and in this caſe the other Parcener ſhall hold the Land charged, becauſe he cometh to the half by deſcent as heir. Alſo if there be two Joyntenants in fee-ſimple within one Borough, where the Lands and Tenements within the ſame Borough be deviſable by Teſtament, If the one of the ſaid Joyntenants deviſe that which to him belongeth by Teſtament and die,Diviſe by Teſtament. this deviſe and legation is void And the cauſe is, for that no deviſe may take effect till after the death of the Teſtator which bequeathed and deviſed the ſame, and by his death all the Land incontinent cometh by the Law to his fellow that Surviveth by the Survivor, which neither claimeth nor hath any thing in the Land by the deviſe, but in his own right by the Survivor after the courſe of the Law, and for this cauſe ſuch a deviſe is void.
But otherwiſe it is of Parceners,A ground of the Law. ſeized of Tenements deviſable in ſuch caſe of deviſe for the cauſe above remembred;68 and it is commonly ſaid that every Joyntenant is ſeized of the Land that he holdeth joyntly, per my et per tont; that is, throughout, and by all, and this is as much to ſay, that he is ſeized by every parcell, and by all, which ſaying is true, for in every parcell and part, and throughout all the Lands and Tenements, he is joyntly ſeized with his fellow, and therefore if the one Joyntenant make a Feofment to his companion that is void, becauſe he can make no Livery of ſeizin to him. Diverſity.Alſo if two joyntenants be ſeized of certain Lands in fee-ſimple, and the one letteth that that to him belongeth to a ſtranger for the term of Fourty years, and dyeth within the term, in this caſe, after his death the Leſſee may enter and ocupy the half to him letten, during the ſaid Term, though the Leſſee never had poſſeſſion of it in the life of the Leſſour by force of the Leaſe,Diverſity between a grant of a Rent and Leaſe. and the difference between the caſe of the grant of a Rent-charge and this caſe is this, that in the grant of Rent-charge by a joyntenant, the Lands or Tenements abide alway as they were afore, without that that any hath right to have parcell of the Tenements69 but themſelves, and the Tenements abide in ſuch pitty as they were before the Charge; but where a Leaſe is made by a Joyntenant to another for term of years incontinent by force of the Leaſe, the Leſſee hath right in the ſame Land; that is to ſay, of all that that to his Leſſour belongeth by force of the ſame Leaſe during his term, and if the Leſſor in this caſe die, the other joyntenant ſhall have the Rent or Term during the ſaid Term, becauſe the reverſion is come to him by Survivor. Finally, if a joynt eſtate be made of Land to the Husband and Wife, and to the third perſon in this caſe, the Husband and the Wife have not in the Law in their right but the half, and the third perſon ſhall have as much as the Huſband, and the Wife have, that is to ſay, the other half; and the cauſe is, for that the Husband and Wife be but as one perſon in the eye of the Law, and it is here in like caſe, as if an eſtate be made to two joynt-Tenants, where the one hath by force of the Joynture, the one half, and the other the other half: in ſemblable wiſe, it is where an eſtate is made to the Husband and Wife, and to70 other two men, in this caſe the Huſband and the Wife have not but the third part, and the other two men the other two parts.
Alſo if two or three together diſſeiſeth another of Lands and Tenements to their own uſes, then ſuch diſſeiſors be called Joyntenants.
More ſhall be ſaid of this matter, touching Joyntenants in the next Chapter.
TEnants is Common, (as I ſaid before) be they that have Lands or Tenements in fee-ſimple, fee-tayle, or for term of life, which have ſuch Lands and Tenements by ſeverall Titles, and not by one joynt Title, and none of them knoweth that which is ſeverall to him, and in this caſe they ought by the Law, before partition made between them, to occupy ſuch Lands and Tenements in common and undevided, and to71 take the profits in Common; and becauſe they come to ſuch Lands and Tenements by ſeverall Titles, and not by one ſelf joynt Title, and their ocupation and poſſeſſion in the ſame is among them in Common, they be called Tenants in Common, or Tenants pro indiviſo; as for example, If a man Enfeoff two Joyntenants in fee-ſimple, and the one of them alieneth that that to him belongeth to another in fee, now the other Joyntenant and he to whom the Alienation was made, be Tenants in Common, for that they be ſeized of ſuch Tenements by ſeverall Titles, for the one cometh to the one half by the Feoffment of the Joyntenant, and the other hath the other half, by force of the firſt Feoffment made to him, and to his firſt fellow, and ſo they be in by ſeverall Titles, and by ſeverall Feofments.
And it is to wit,Diffinition of fee only. that when it is ſaid in any Book that a man is ſeized in fee, without more ſaying or addition, it ſhall be underſtood fee-ſimple, for it ſhall not be underſtood by ſuch a word in fee, that a man is ſeized in fee-tayle, except there be put in it ſuch addition in tayle.
72Alſo if three joyntenants be,Joyntenants. and the one of them alieneth that which unto him belongeth to another in fee, in this caſe the alience is Tenant in Common, with the other two Joyntenants. But yet the other two Joyntenants be ſeized of the two parts Joyntly, and of theſe two parts the Survivor between them holdeth place.
Alſo if there be two Joyntenants in fee, and the one giveth that that unto him belongeth to another in the tayle, the Donee and the other Joyntenant be Tenants in Common, but if the Lands be given to two men, and to the Heirs of their two bodies engendred, the Donees have a joynt eſtate for term of their lives, and if each of them have Iſſue and dye, their Iſſues ſhall hold in Common.
Alſo if Lands be given to two men, to have and to hold the one half to the one and to his Heirs, and the other half to the other and to his Heirs they be Tenants in Common.
Alſo if a man ſeized of certain Lands, enfeoffeth another in the half of the ſame Land, without any ſpeech of aſſignement or limitation of the ſame,73 half in ſeveralty at the time of the Feofment, then the Feoffee and the Feoffour ſhall hold their parts of the Land in Common.
And as it is of Tenants in Common, of Lands or Tenements in fee-ſimple, fee-tayle; even ſo it is of Tenant for term of life. Therefore if two joyntenants be in fee,Joyntenants. and the one letteth to a man that that unto him belongeth, for term of life, and the other Joyntenant letteth that which to him belongeth to another for terme of life alſo; theſe two Leſſees be Tenants in common for terme of their lives. Alſo if a man let Lands to two men for terme of life, and he to whom the one granteth all his eſtate to another, then that other Tenant for terme of life, and he to whom the grant is made, ſhall be Tenants in common during the time that both the Leſſees be alive.
Note, If there be two Joyntenants in fee, and that one letteth that that unto him belongeth to another for terme of life, the Tenant for terme of life, during his life, and the other Tenant that did not let be Tenants in common. And upon this Caſe a Queſtion may ariſe, as74 thus; Let the Caſe be that the Leſſour hath Iſſue and dieth, living the other Joyntenant his fellow, and living the Tenant for terme of life, the Queſtion is,Queſtion. Whether the Reverſion of the half that the Leſſour hath ſhall deſcend to the Iſſue of the Leſſour, or whether the other Joyntenant ſhall have it by the ſurvivour or no? And ſome have ſaid that the other Joyntenant ſhall have the Reverſion by the ſurvivour, foraſmuch as when the Joyntenants were joyntly ſeized in fee-ſimple, though one of them made an eſtate of that that unto him belongeth for terme of life, and though he hath ſevered the frank-tenement of that that to him belongeth by the Leaſe, yet he hath not ſevered the fee-ſimple. But the fee-ſimple abideth to them joyntly as it was before, and ſo it ſeemeth unto them that the other Joyntenant which ſurviveth, ſhall have the Reverſion by the ſurvivour: But other have thought the contrary, and this is their reaſon; when one of the Joyntenants letteth that which unto him belongeth to another for terme of life, by ſuch Leaſe the Franktenement is ſevered from the Joynture, ſo that the reverſion75 that is dependant upon the ſame Frank-tenement is ſevered from the Joynture: furthermore if the Leſſour had reſerved to him a yearly Rent upon the Leaſe, the Leſſour only ſhould have the Rent, which is a proof that the reverſion is only in him, and that the other hath nothing therein.
Alſo if the Tenant for life were impleaded and make default after default,Recie. the Leſſour ſhall be only hereupon received to defend his right, and not his fellow; which proveth the reverſion of the half to be only in the Leſſour; and ſo conſequently if the Leſſour die, living the Leſſee for terme of life, the reverſion ſhall deſcend to the Heirs of the Leſſour, and ſhall not come to the other Joyntenant by the ſurvivour after theſe mens opinions, yet it is doubtfull. But in this caſe,Quere. if the Joyntenant that hath the franktenement have Iſſue and die, living the Leſſour and the Leſſee, then it ſeemeth that the Iſſue ſhall have the half in his demeſne as of fee by deſcent, foraſmuch as the franktenement may not by nature of the Joynture be annexed to a reverſion; and it is certain, that he that made the Leaſe, was ſeized76 of the half in his demeſne as of fee, and that none ſhall have any Joynture in his franktenement, ſo that this ſhall deſcend to his Iſſue.
If three Joyntenants be, and the one releaſeth by his Deed to one of his fellows, all the right he hath in the Land,Releaſe. then hath he to whom the Releaſe is made the third part of the Lands by force of the Releaſe, and he and his fellow ſhall hold the other two parts joyntly; and as to the third part that he hath by force of the Releaſe, he holdeth it with himſelf and his fellow in common.
And it is to wit that ſometime a Deed of Releaſe ſhall take effect to put the eſtate of him that made the Releaſe in him to whom the Releaſe is made, as in the caſe aforeſaid.
Alſo if a joynt eſtate be made to the Husband and Wife, and to a third perſon, and the third perſon releaſeth his right that he hath to the Husband, then hath the Husband the half which the third perſon had, and the Wife of this hath nothing: ſemblably if the third perſon had releaſed to the Wife, not naming the Husband in the Releaſe, then77 ſhould the Wife have the half that the third perſon had, and the Husband nothing of this but in the right of his Wife, becauſe ſuch Releaſe ſhall enure to put the eſtate in him to whom it was made, of all that that belongeth to him that made the Releaſe. Again, In ſome caſe a Releaſe ſhall enure and ſerve to put all the right that a man hath that made that Releaſe in him to whom it is made: As a man being ſeized of certain Lands, is diſſeized by two diſſeizors, if the perſon diſſeized by his Deed releaſe all his right to one of the diſſeizors, then he to whom the Releaſe is made, ſhall have and hold all to him alone, and put out his fellow out of the occupation of it. And the cauſe is,Diſſeiſors. for that the two diſſeizors were ſeized by wrong by them done againſt the Law, and when one of them getteth the Releaſe of him that hath right to enter, this right reſteth in him to whom the Releaſe is made, and in ſuch plite, as if he that had the right had entered and enfeoffed him of the ſame; and the cauſe is, for that he that before had an eſtate by wrong, hath now by the Releaſe a rightfull eſtate.
And in ſome caſe a Releaſe ſhall enure78 and take effect by way of extinguiſhment,Releaſe by way of extinguiſhment. and ſuch a Releaſe ſhall help the Joyntenant to whom the Releaſe was not made, as well to him to whom it is made, as if a man be diſſeized, and the diſſeiſour maketh a feoffment to two men in fee, if the perſon diſſeized releaſe to one of the feoffees in fee by his Deed, then ſuch Releaſe ſhall inure to both the feoffees, becauſe the feoffees have their eſtate by the Law, that is to ſay by the feoffment, and not by wrong done to any other.
And in like manner if the diſſeizour make a Leaſe to a man for terme of life,A Releaſe ſhall inure to him in the remainder. the remainder over to another in fee, if the diſſeiſes will releaſe to the Tenant for terme of life, all his right, this Releaſe ſerveth as well to him in the remainder, as the Tenant for terme of life: And the cauſe is, for that the Tenant for terme of life, cometh to his eſtate by the courſe of the Law, and for this cauſe the Leaſe ſhall inure and take effect by way of extinguiſhment of the right of him that hath releaſed; and by this Releaſe the Tenant for terme of life hath no greater eſtate then he had before the Releaſe made unto him.
79And yet the right of him that releaſed is all utterly extinct and gone, wherefore for as much as ſuch a Releaſe cannot enlarge the eſtate of the Tenant for term of life, it is reaſon that it ſhall ſerve him in the remainder.
Alſo if there be two Parceners, and the one alieneth his part to another, the other Parcener and the alience be Tenants in Common.
Furthermore,Tenants in Common, by Title of preſcription. Tenants in Common may be by Title of Preſcription, if that one and his Anceſtors, or they whoſe eſtate he hath in the half have holden in Common, the ſame half with the other Tenant that hath the other half, and with his Anceſtours or them whoſe eſtate he hath, as undenied time out of mind, and ye ſhall mark, that in ſome caſe Tenants in Common ought to have of their poſſeſſion, ſeverall actions and in ſome caſe they ſhall joyn in one action,Actions ſeverall. for if there be two Tenants in Common and they be diſſeiſed, they ought to have againſt the Diſſeiſor two Aſſizes and not one Aſſize, for every one of them ought to have an Aſſize of his half,Aſſize. becauſe they were ſeized by ſeverall Titles, but otherwiſe it is of Joyntenants,80 for if there be twenty Joyntenants and they be diſſeiſed they ſhall have in all their names but one Aſſize,Aſſize. becauſe they have but one Joynt-Title.
Alſo if there be three Joyntenants of whom the one Releaſeth to one of his fellowes all the right he hath, and afterward the other two be diſſeiſed of the whole, in this caſe, they ſhall have in both their names one of the two parts: And as to the third part, he to whom the Releaſe was made, ought to have hereof an Aſſize in his own name, becauſe as to the third part he is Tenant in Common.
Alſo as to ſue Actions that touch the Realty,Diverſity. there is a Diverſity between Parceners that are in by divers diſcents and Tenants in Common. For if a man ſeized of certain Lands in fee hath Iſſue two Daughters and die, and they enter into the Lands as Co-heirs, and each of them have Iſſue a Son and die without partition made between them, ſo that the one half diſcendeth to the Son of the one Parcener, and the other half to the Sonne of the other, and they Enter and Occupie in Common and be diſſeiſed81 in this caſe, they ſhall have in their two names one Aſſize and not two Aſſizes, and yet the cauſe is, though they come in by divers Diſcents yet they be Coheirs and Parceners. Alſo if two Tenants in Common of certain Lands in fee, give the ſame to another man in the tayl or let it to another for term of life, yielding an annunity or certain Rent, or a pound of Pepper, or an Hawk, or an Horſe, and they be ſeized of theſe ſervices, and afterward all the Rent is behinde, and they Diſtrain for it, and the Tenant maketh Reſcous in this caſe,Reſcous. as to the Rent and the pound of Pepper, they ſhall have two Aſſizes, and as to the Hawk and the Horſe but one Aſſize, and the cauſe why they have two Aſſizes, as to the Rent and pound of Pepper is, for that they were Tenants in Common by ſeverall Titles, and when they made a gift in the tayle for Leaſe of term of life, ſaving and reſerving to them the Reverſion, and yielding to them certain Rent; This Reſervation is incident to their Reverſion, and becauſe their Reverſion is in Common and by ſeverall Titles, even as their poſſeſſion was before the Rent, and other things82 which may be ſevered, and which were to them reſerved upon the gift or upon the Leaſe which be incident by the Law to the Reverſion. Plaint in Aſſize.Therefore ſuch things ſo ſevered be of the nature of the Reverſion, wherefore it behoveth that the Rent and the pound of Pepper which may be ſevered to be then in Common by ſeverall Titles, and of this they ſhall have two Aſſizes, and every of them in his Aſſize ſhall make his Plaint of the half of the Rent, and of the half of the pound of Pepper, but of the Hawk and the Horſe which cannot be ſevered, they ſhall have but one Aſſize, for it were an abſurdity and thing inconvenient to make a plaint in Aſſize, of the half of an Hawk, or of the half of an Horſe: In like manner it is of the other Rents and ſervices that Tenants in Common have in ground, by divers Titles.
And ye ſhall underſtand,Perſonall Action. that concerning Actions perſonalls, Tenants in Common ought to have them Joyntly in all their names: that is to ſay, Of treſpaſs, or of offences that touch their Tenements in Common; as of breaking of their Houſes, breaking of their83 Cloſes, and Paſtures, waſting and defouling of their Graſs, cutting of their Weeds, and of Fiſhing in their Ponds, and ſuch other, they ſhall recover joyntly damages, becauſe the action is in the perſonalty and not in the realty. Damages.
Alſo if Tenants in Common make a Leaſe of their Tenements to another, for term of years,Tenants in Common ſhall have one Action of Debt. yiedling unto them yearly a certain Rent, if the Rent be behind, they ſhall have one action of debt againſt the Leſſee, and not divers actions, becauſe the action is in the Perſonalty, but in an Avowry, for the ſaid Rent they ought to be ſevered, becauſe it is in the realty, as be the Aſſizes.
IT is to be known, that as there be Tenants in Common of Lands or Tenements, ſo there be Tenants in Common of poſſeſſions, and property of Chattells as well Reall as Perſonall: Of Reall, as if a Leaſe be made of certain Lands to two Men for term of Twenty years, and when they be thereof Poſſeſſed, the one granteth that that unto him belongeth during the term to another, he to whom the grant is made, and the other ſhall hold and Occupie in Common.
Alſo if two Joyntenants have the Ward of the Body,Joyntenants of a Wa d. and of the Lands of an Heir within age, and the one of them granteth to another that that unto him belongth of the ſame Ward, then he to whom the grant is made, and the other that granteth not ſhall have and hold it in Common.
Of Chattels Perſonalls: as if two have a joynt eſtate, either by gift or by85 buying of an Horſe or of an Oxe or ſuch like, and the one of them granteth that that to him belongeth; here ſhall the grantee and he that granteth not, have and poſſeſs ſuch Chattels perſonall in common: And in ſuch caſe where divers perſons have Chattels reals or perſonals in common and by divers Titles, if one of them die, the other that ſurviveth ſhall not have his fellows part by the ſurvivour, but the Executors of him that dieth ſhall hold and occupy it with him that ſurviveth, in like form as their Teſtator did or ought in his life, foraſmuch as their rights and Titles were ſeverall, alſo in the Caſe aforeſaid, if two have an eſtate in common for terme of years, and the one doth occupy all and put the other out of his poſſeſſion and occupation, then ſhall he that is put out, have againſt the other a Writ de Ejectione firmae for the half:A Writ de ejectione firmae. in ſemblable manner, where two hold the Ward of Lands or Tenements during the nonage of a Childe, if one ſhall put out the other of his poſſeſſion, he that is out ſhall have a Writ Ejectione cuſtodiae,De ejectione cuſtodiae. of the half, becauſe theſe things be Chattells Realls, and may be opportionted86 and ſevered, but no Action of Treſpaſs lieth for one againſt the other (as for example, quare olauſum fregit & herbam ſuam conculcavit & conſumpſit, nor ſuch like Actions,) foraſmuch as each of them may enter and occupy in common: but if two be poſſeſſed of Chattels perſonall in common, by divers Titles, as of an Horſe, an Oxe or a Cow, if the one take it all to himſelf out of the poſſeſſion of the other, the other hath none other remedy but to take it again from him that hath done him the wrong, when he may ſee his time.
In like manner of Chattels realls which may not be ſevered, as in the caſe aforeſaid, where two be poſſeſſors of the wardſhip of the body of a Childe within age, if one of them ſhall take the Childe out of the poſſeſſion of the other, the other hath no remedy by any Action at the Law, but to take the Childe out of the others poſſeſſion when he ſeeth his time.
Finally ye ſhall underſtand,Form of Pleading. That when a man in pleading and declaring his Cauſe, will ſhew a Deed of Feoffment made unto him, or a gift in fee-tayle, or a Leaſe for terme of life, of any Lands87 or Tenements, he ſhall uſe his termes in this wiſe and ſay; By force of ſuch Feoffment, Gift or Leaſe he was ſeized, &c.
But where a man will declare or plead a Leaſe or Grant made unto him of a Chattell reall or perſonall, then he ſhall ſay, By force of which he was poſſeſſed.
ALl Joyntenants and Tenants in Common of any eſtate of Inheritance, in their own rights or in the right of their Wives, of any Lands or Hereditaments within this Realm of England, Wales, or the Marches of the ſame, ſhall and may be compelled to make partition between them of the ſame which they ſo hold as Joyntenants88 or Tenants in common, by a Writ de partitione facienda,Writ de partitione facienda. to be deviſed in the Chancery, in like manner as Coparceners are compelled to do, and the ſame Writ to be purſued at the Common Law. Aide prayed.And after ſuch partition made, every of the ſaid Joyntenants and Tenants in common, ſhall and may have aide of the other or of their Heirs, to the intent to dereigne the warranty paramount, and to recover for the rate as is uſed between Coparceners after partition made by the order of the Common Law.
Item, In the thirty ſecond year of King Henry the eight, Chap. 32. it is further enacted, That all Joyntenants and Tenants in common, which hold joyntly or in common for terme of life, year or years, or Joyntenants or Tenants in common, where one or ſome of them have an eſtate for terme of life or years, with other that have an eſtate of Inheritance or free-hold in any Lands or other Hereditaments, ſhall be compellable by Writ of Partition to be purſued out of the Chancery upon their Caſes, to make ſeverance and partition of all ſuch Lands and Hereditaments as89 they hold joyntly or in common, for terme of life or lives, year or years, or where one or ſome of them hold joyntly or in common for terme of life or years, with other that have an eſtate of Inheritance of free-hold; Provided that no ſuch partition nor ſeverance be hurtfull to any perſon, other then ſuch as be parties unto the ſaid partition, their Executors or Aſſignes.
FOraſmuch as every Eſtate is either pure or conditionall, it were not amiſs to make ſome declaration of the nature and efficacy of Conditions.
Wherefore ye ſhall underſtand, that of Conditions ſome be actuall conditions, and be called expreſs Conditions or Conditions indeed, and other ſome be Conditions in Law; which be called in Latine Conditiones tacitae ſive Conditiones implicitae, becauſe they be ſecretly implied by the Law and not expreſſed.
90Conditions indeed be ſuch as be knit and annexed by expreſs words to the Feoffment,Diviſion. Leaſe or Grant, either in writing or without; as for example, if I infeoff a man of certain Lands, reſerving to me and to my Heirs ſo much Rent yearly, to be paid at ſuch a Feaſt, and for default of payment, that it ſhall be lawfull for me to reenter, this is a feoffment upon condition of payment: And here the reenter of the feoffor for the not payment of the Rent ſhall diſſolve and utterly defeat the feoffment; Semblamble it is of Gifts in tayle, Leaſes, &c. but if the Condition be, that for default of payment of the Rent, it ſhall be lawfull for the feoffor to enter again into the Lands, and to hold them till he be contented and ſatisfied of the Rent; this Condition not performed, doth not diſſolve nor undoe the feoffment, but only giveth to the Feoffor an authority to retain the Lands (as it were by way of Diſtreſs) till he hath levied the arrerages of Rent. Diſtreſs.
And ye ſhall well mark and obſerve, That Conditions be ſometime made to be performed on the Feoffees behalf, and ſometime on the Feoffors behalf: on91 the feoffees behalf, as when I infeoff you of Lands or Tenements, upon Condition that you ſhall do ſuch an act, as to pay unto me or mine Heirs ſuch an annuall Rent on the feoffors behalf; as when I make a feoffment unto you, upon Condition that if I pay or cauſe to be paid unto you before ſuch a day ſuch a ſumme of money, then it ſhall be lawfull for me to enter again and retain my Lands in my former eſtate;Tenants in Mortgage. in this caſe he that is the feoffee is called Tenant in Mortgage, which is as much to ſay as dead-gage; and it ſeemeth that the cauſe why it is ſo called is, foraſmuch as it is doubtfull whether the feoffor will pay at the day limited and preſcribed, ſuch a ſumme of money for the redemption of his Lands or not, for if he do not, his Title or intereſt in the Lands thus gaged and oppignorate, is utterly extinct and gone without all hope of renewing.
Ye ſhall alſo note, That if the mortgager dieth before the day of payment, his Heir may redeem the Land very