c. 10 & 11. 1 Lord Chief Justice Holt delivered the opinion of Vide Tit. 32. the court. He said it had been made a question if tenant in tail bargained and sold, or leased or released, or covenanted to stand seised of lands entailed, to another in fee, whether the estate conveyed determined by the death of the tenant in tail, or continued till the actual entry of the issue in tail: he held that such estate continued till the actual entry of the issue in tail; for these reasons: 1. Because tenant in tail had an estate of inheritance in him; and before the statute De Donis, it was held that such estate was a fee simple conditional: then the statute made no alteration as to the tenant in tail himself, but only made provision that the issue in tail should not be disinherited by the alienation of his ancestor. By Coke Lit. 18. it appeared that a base fee might be created out of an estate tail $ where it was said, that if a gift in tail was made to a villein, and the lord entered, he had a base fee. Then if a base fee might be created out of an estate tail, there was great reason that the bargainee, &c. of tenant in tail should have it. 2. The tenant in tail had the whole estate in him, therefore there was no reason why he could not divest himself of it, by grant, bargain, and sale, &c., since the power of disposition was incident to the property of every 3. It was no prejudice to the issue in tail, therefore no breach of the statute De Donis. Indeed there were strong words in the act for restraining alienations to the prejudice of the issue in tail, where it says, Quod finis ipso jure sit nullus, &c.; yet the construction of the said words had always been, that the entry of the issue was tolled by such fine, and he was driven to his formedon. Therefore if an act, one. which drove the issue in tail to his formedon, would not be a breach of the statute; much less would it be a breach of the statute to drive the issue in tail to enter, to avoid a bargain and sale by his ancestor. As to authorities, Seymour's case was in point, where 10 Rep. 95. it was held that the bargainee of tenant in tail had Tit. 35. c. 12. a descendible estate. In 3 Co. Rep. 84 b. the case in Littleton, § 613, was put and considered; and there it was held that the words ought not to be literally understood. Those of Littleton were, that if tenant in tail granted totum statum suum to I. S. and his heirs, and made him livery of seisin, yet his estate determined by the death of the tenant in tail. But this ought to be understood, that it was no discontinuance, but would drive the issue in tail to enter to avoid it. 4. That in this case the covenant 7 Mod. 26. to stand seised did not alter the estate tail, but it still continued. The reason was, that though the tenant in tail might make a conveyance of the estate in his lifetime, which should be good and binding, till avoided by the issue; yet any conveyance which he made, to commence after his death, should be void; if by possibility it might not take effect during his life. The estate, by this covenant, was to commence from and after the death of the tenant in tail; and the instance put of a lease for years was apposite. If a tenant in tail made a lease for years not warranted by the statute 32 Henry VIII., to commence immediately, or which might possibly commence during his life, such lease was voidable only by his issue, on his death; but if he made a lease to commence from and after his death, it was ipso facto void. Now this remainder was limited to commence from and after the death of the tenant in tail, therefore it was void; it might be said that here Doe v. Rivers. Tit. 5. c. 2. he covenanted to stand seised to the use of himself for life, the remainder over, so that the estate to arise upon the covenant to stand seised, did arise in his own lifetime. To this it was answered, that the covenant to stand seised to the use of one's self was void, except for the sake of the remainder over; that the remainder, being to commence after his death, was void; and the covenant to stand seised to his own use could not be good, for the sake of a void thing. What was the reason that such estate was void, when it was limited to commence after the death of tenant in tail? It was because it was to commence at a time when the right of the estate, out of which it would issue, was in another person, by a title paramount to the conveyance, viz. per formam doni. A tenant in tail had an estate out of which he might carve other estates, provided he did it out of the estate in himself, so as to make it rightful in its creation, but otherwise not. For it would be injurious to make good a lease, or other estate, commencing upon the right of another, whose title was paramount to the lease or estate so made. In the principal case the issue in tail had a title paramount, the title of the remainder, by virtue of the covenant, the very minute the remainder would take effect; that was the only true reason; therefore to make such an estate to take effect upon the possession of the issue, whose title was paramount, would be to make an estate take effect by wrong, the very minute it had its creation. Adjudged that the remainder was void, and the estate tail not altered by this covenant. 16. It was however laid down in the preceding case, that an estate created by a tenant in tail, which must, or by possibility might, commence in the lifetime of the tenant in tail, was good. 27. 17. Thus if a tenant in tail covenants to stand 2 Ld. Rayn). seised to the use of the covenantee for life,. remainder 782. 7 Mod., to I. S. in fee, or to the use of I. S. for life, remainder to I. N. in fee; the remainder is good; till avoided by the entry of the issue in tail, although the tenant in tail dies before the remainder takes effect; because the estate for life takes effect immediately, and the remainder might by possibility have taken effect in the life of the tenant in tail. 18. So if tenant in tail releases to I. S. in fee, to Idem. the use of himself for life, remainder to I. N. in fee, after his death; this remainder is good, though it is to commence after the death of the tenant in tail; because it arises out of the estate of the releasee; Doe, v. which estate would have been good, till avoided by Tit. 5. c. 2. the entry of the issue in tail. Rivers, Ancestor's 19. The issue in tail is not bound, either at law or in The issue not equity, to complete any contract or agreement made bound by his by his ancestor, respecting the estate tail, because Contracts. the issue claims, per formam doni, from the person by whom the estate tail was originally granted, and not from his ancestors. 3 Rep. 41 b. 1 P. Wms. 271. 2 Ves. 634. 1 Cha. Ca. 294. Cavendish v. Worsley, 20. It was formerly, held that a covenant by a Hill v. Carr, tenant in tail to levy a fine upon a valuable consideration, and a decree that he should do so, would bind the issue in tail. This doctrine was soon altered, Hob. 203. and it was determined that a court of equity cannot 2 Vent. 350. dispense with any of thsoe forms which the law re quires to bar estates tail. v. Keymis, 21. A tenant in tail made a mortgage, without Jenkins levying a fine, with a covenant for further assurance, 1 Lev. 237. and died. Lord Keeper Bridgeman would not compel the issue to make the assurance good; though the father might have done it by fine or recovery. Herbert v. 2 Ab. Eq. 28. Sangon v. Gilb. R. 164. 2 Vern. 306. Wharton 2 Vern. 3. 22. A tenant in tail entered into articles, concerning his lands, for payment of his debts; but died without doing any act to destroy the estate tail. It was decreed that this agreement could not be executed against the heir in tail. 23. A decree was obtained against a tenant in tail, who had contracted for the sale of his estate, and received a great part of the consideration, to compel him to levy a fine, and suffer a recovery. The tenant in tail stood out all process against him, to a contempt, and died. A bill was then brought against his issue to revive the decree against him, which was dismissed. 24. A tenant in tail covenanted to settle a jointure v. Wharton, on his wife. In order to perform his covenant, he acknowledged a fine, but died before it was perfected. The Court of Chancery refused to supply this defect against his issue. 25. Where a person is prevented from barring an estate tail by force and management, the Court of Chancery will compel the parties to act as if the reTit. 36. c. 11. covery had been suffered. Luttrell v. Unless he confirms them. Ross v. Ross, 26. If the issue in tail does any act towards carrying the contract or agreement of his ancestor into execution, it will then become binding on him; and he will be compelled, in equity, to perform it. 27. Francis Ross having issue James his legitimate son, and John a bastard, devised lands to John in tail. James having copyhold lands by descent, James and John agreed to exchange their estates. The agreement being executed, James obtained a decree against John to levy a fine of his estate tail, and by that means to settle it on James. John died in contempt for not obeying the decree; his issue |