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St. 13 Edw. I. ; ST. OF WESTM. II. (1285) c. 1; DE DONIS CONDITIONALIBUS. First, concerning lands that many times are given upon condition, that is, to wit, where any giveth his land to any man and his wife, and to the heirs begotten of the bodies of the same man and his wife, with such condition expressed that if the same man and his wife die without heir of their bodies between them begotten, the land so given shall revert to the giver or his heir ; in case also where one giv eth lands in free marriage, which gift hath a condition annexed, though it be not expressed in the deed of gift, which is this, that if the husband and wife die without heir of their bodies begotten, the land so given shall revert to the giver or his heir ;Jin case also where one giveth land to another and the heirs of his body issuing, it seemed very hard and yet seemeth to the givers and their heirs, that their will being expressed in the gift was not heretofore nor yet is observed. In all the cases aforesaid after issue begotten and born between them, to whom the lands were given under such condition, heretofore such feoffees had power to aliene the land so given, and to disinherit their issue of the land, contrary to the minds of the givers, and contrary to the form expressed in the gift: and further, when the issue of such feoffee is failing, the land so given ought to return to the giver or his heir by form of gift expressed in the deed, though the issue, if any were, had died ; yet by the deed and feoffment of them, to whom land was so given upon condition, the donors have heretofore been barred of their reversion of the same tenements which was directly repugnant to the form of the gift: wherefore our lord the king, perceiving how necessary and expedient it should be to provide remedy in the aforesaid cases, hath ordained, that the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that they to whom the land was given under such condition shall have no power to aliene the land so given, but that it shall reinain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail, either by reason that there is no issue at all, or if any issue be, it fail by death, the heir of such issue failing.
gift was to one and to the heirs of his body, they took it that he could not lawfully alien until he had such heirs, and that if he did alien, the donor (although he could not enter presently) after the death of the donee, if he had no issue, might have a formedon in reverter. For the gift being to one and to the heirs of his body, they adjudged it not to be a full fee-simple until he had heirs of his body, for when it was incertain whether he should have an heir of his body or not, they did not take him to have a full inheritance. And therefore the law was taken in such case, that if the gift was to husband and wife, and to the heirs of their two bodies begotten, and the husband had died before issue had, and the wife had taken a second husband, and had issue, there the second husband should not be tenant by the curtesy, nor should their issue inherit, and if the wife had died, the second wife of the husband should not be endowed ; for until such heir as the donor had appointed was begotten, they took it that the inheritance was not consummate in him." Per BROWN, J., in Willion v. Berkley, Plowd. 223, 245, 246.
See Paine's Case, 8 Co., 34 a, 35 6; Co. Lit. 19 a, Hargrave's note.
Neither shall the second husband of any such woman from henceforth have anything in the land so given upon condition after the death of his wife, by the law of England, nor the issue of the second husband and wife shall succeed in the inheritance, but immediately after the death of the husband and wife, to whom the land was so given, it shall come to their issue or return unto the giver or his heir as before is said. And forasmuch as in a new case new remedy must be provided, this manner of writ shall be granted to the party that, will purchase it: “ Command A. that justly, &c., he render to B. the manor of F, with its appurtenances, which C. gave to such a man, and such a woman, and to the heirs of the said man and woman issuing ;” or, “ which C. gave to such a man in free marriage with such a woman, and which, after the death of the aforesaid man and woman, to the aforesaid B., son of the aforesaid man and woman, ought to descend, by the form of the gift aforesaid, as he saith ; " or, “which C. gave to such a one and the heirs of his body issuing, and which after the death of the said such a one, to the aforesaid B., son of the aforesaid such a one, ought to descend, by the form, &c.” The writ whereby the giver shall recover when issue faileth is common enough in the Chancery. And it is to wit that this statute shall hold place touching alienation of land contrary to the form of gift hereafter to be made, and shall not extend to gifts made before. And if a fine he levied hereafter upon such lands it shall be void in the law, neither shall the heirs or such as the reversion belongeth unto, though they be of full age, within England, and out of prison, need to make their claim.
Lit. $$ 13–19, 21–24. Tenant in fee tail is by force of the statute of W estm]. II. c. 1, for before the said statute all inheritances were fee simple; for all the gifts which be specified in that statute were fee simple conditional at the common law, as appeareth by the rehearsal of the same statute. And now by this statute tenant in tail is in two manpers, – that is to say, tenant in tail general, and tenant in tail special.
Tenant in tail general is, where lands or tenements are given to a man and to his heirs of his body begotten. In this case it is said general tail, because whatsoever woman that such tenant taketh to wife (if he hath many wives, and by every of them hath issue), yet every one · of these issues by possibility may inherit the tenements by force of the gift; because that every such issue is of his body engendered.
In the same manner it is where lands or tenements are given to a woman and to the heirs of her body; albeit that she hath divers husbands, yet the issue which she may have by every husband may inherit as issue in tail by force of this gift; and therefore such gifts are called general tails.
Tenant in tail special is, where lands or tenements are given to a man and to his wife and to the heirs of their two bodies begotten. In this case none shall inherit by force of this gift but those that be engendered between them two. And it is called especial tail, because if the wife die, and he taketh another wife and have issue, the issue of the
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second wife shall not inherit by force of this gift, nor also the issue of the second husband, if the first husband die.
In the same manner it is where tenements are given by one man to another with a wife (which is the daughter or cousin to the giver) in frankmarriage, the which gift hath an inheritance by these words (frankmarriage) annexed unto it, although it be not expressly said or rehearsed in the gift, – that is to say, that the donees shall have the tenements to them and to their heirs between them two begotten. And this is called especial tail, because the issue of the second wife may not inherit.
And note, that this word (Talliare) is the same as to set to some certainty or to limit to some certain inheritance. And for that it is limited and put in certain what issue shall inherit by force of such gifts, and how long the inheritance shall endure, it is called in Latin feodum talliatum ; i. e., hæreditas in quandam certitudinem limitata. For if tenant in general tail dieth without issue, the donor or his heirs may enter as in their reversion.
In the same manner it is of the tenant in especial tail, &c. For in every gift in tail without more saying the reversion of the fee simple is in the donor. And the donees and their issue shall do to the donor and to his heirs the like services as the donor doth to his lord next paramount, except the donees in frankmarriage, who shall hold quietly from all manner of service (unless it be for fealty) until the fourth degree is past, and after the fourth degree is past, the issue in the fifth degree, and so forth the other issues after him, shall hold of the donor or of his heirs as they hold over, as before is said.
And all these entails aforesaid be specified in the said statute of W[estm]. II. Also there be divers other estates in tail, though they be not by express words specified in the said statute, but they are taken by the equity of the same statute. As if lands be given to a man and to his heirs males of his body begotten; in this case his issue male shall inherit, and the issue female shall never inherit, and yet in the other entails aforesaid it is otherwise.
In the same manner it is if lands or tenements be given to a man and to his heirs females of his body begotten; in this case his issue female shall inherit by force and form of the said gift, and not his issue male. For in such cases of gifts in tail the will of the donor ought to be observed who ought to inherit and who not.
And in case where lands or tenements be given to a man and to the heirs males of his body, and he hath issue two sons, and dieth, and the eldest son enter as heir male, and hath issue a daughter, and dieth, his brother shall have the land, and not the daughter, for that the brother is heir male. But otherwise it is in the other entails which are specified in the said statute.
Also, if lands be given to a man and to the heirs males of his body, and he hath issue a daughter, who hath issue a son, and dieth, and after the donee die ; in this case the son of the daughter shall not in
herit by force of the entail ; because whosoever shall inherit by force of
the daughter cannot convey to himself the descent by an heir male. sleen was Norr on
wo NOTE ON WARRANTY AND ON FINES AND RECOVERIES. heled by
The object of the St.
ranty are given in the sections quoted below from Littleton. (2) The courts allowed Resou
Simpler methods of docking entails have been adopted in recent times. In most of
The fuller discussion of the barring of estates tail does not belong here; but for convenience of reference are subjoined : (1) sections of Littleton on lineal and col. lateral warranty ; (2) the Statutes of Fines, 4 Hen. VII. c. 24, and 32 Hen. VIII. C. 36 ; (3) the forms of a fine and of a recovery.
Lit. $$ 143, 145. Tenant by homage ancestral is, where a tenant holdeth his land of his lord by homage, and the same tenant and his ancestors, whose heir he is, have holden the same land of the same lord and of his ancestors, whose heir the lord is, time out of memory of man, by homage, and have done to them homage. And this is called homage ancestral, by reason of the continuance, which hath been, by title of prescription, in the tenancy in the blood of the tenant, and also in the seigniory in the blood of the lord. And such service of homage ancestral draweth to it warranty, that is to say, that the lord, which is living and hath received the homage of such tenant, ought to warrant his tenant when he is impleaded of the land holden of him by homage ancestral.
And it is said, that if such tenant be impleaded by a prrecipe quod reddat, &c., and vouch to warranty his lord, who cometh in by process, and demands of the tenant what he hath to bind him to warranty, and he showeth how he and his ancestors, whose heir he is, have holden their land of the vouchee and of his ancestors time out of mind of man; and if the lord, which is vouched, hath not received homage of the tenant nor of any of his ancestors, the lord (if he will) may disclaim in the seigniory, and so oust the tenant of his warranty. But if the lord, who is vouched, hath received homage of the tenant, or of any of his ancestors, then he shall not disclaim, but he is bound by the law to warrant the tenant; and then if the tenant loseth his land in default of the vouchee, he shall recover in value against the vouchee of the lands and tenements which the vouchee had at the time of the voucher, or any time after.
Co. Lit. 102 a. Here is a point worthy of observation, that in the case of homage ancestral (which is a special warranty in law), by the authority of Littleton, the
lands generally that the lord hath at the time of the voucher shall be liable to execu. tion in value, whether he hath them by descent or purchase. But in the case of an express warrantie, the heire shall be charged but only for such lands as he hath by descent from the same ancestor which created the warranty.
ST. 4 Edw. I. (ST. DE BIGAMIS), (1276) c. 6. In deeds also where is contained dedi et concessi tale tenementum without homage, or without a clause that containeth warranty, and to be holden of the givers, and their heirs, by a certain service ; it is agreed that the givers and their heirs shall be bounden to warranty. And where is contained dedi et concessi, &c. to be holden of the chief lords of the fee, or of other, and not of feoffors, or of their heirs, reserving no service, without homage, or without the foresaid clause, their heirs shall not be bounden to warranty, notwithstanding the feoffor during his own life, by force of his own gift, shall be bound to warrant. All these constitutions aforesaid were made at Westminster, in the parliament next after the feast of St. Michael, the fourth year of the reign of King Edward, son of King Henry; and from that time forth they shall take effect.
St. 6 Edw. I. (ST. OF GLOUCESTER), (1278) c. 3. It is established also, that if a man aliene a tenement that he holdeth by the law of England, his son shall not be barred by the deed of his father (from whom no heritage to him descended) to demand and recover by writ of mortdauncestor of the seisin of his mother, although the deed of his father doth mention that he and his heirs be bound to warranty. And if any heritage descend to him of his father's side, then he shall be barred for the value of the heritage that is to him descended. And if in time after any heritage descend to him by the same father, then shall the tenant recover against him of the seisin of his mother by a judicial writ that shall issue out of the rolls of the justices before whom the plea was pleaded, to resummon his warranty, as before hath been done in cases where the warrantor cometh into the court, saying that nothing descended from him by whose deed he is vouched. And in like manner the issue of the son shall recover by writ of cosinage, aiel, and besaiel. Likewise in like manner the heir of the wife shall not be barred of his action after the death of his father and mother by the deed of his father, if he demand by action the inheritance of his mother by a writ of entry which his father did aliene in the time of his mother, whereof no fine is levied in the king's court.
2 Inst. 293. And by the equity of this statute the warranty of tenant in tail is no bar unless there be assets in fee simple descended.
Lit. $$ 703-712, 715, 718. Warranty lineal is, where a mav seised of lands in fee maketh a feoffment by his deed to another, and binds himself and his heirs to war. ranty, and hath issue and die, and the warranty descend to his issue, that is a lineal warranty. And the cause why this is called lineal warranty is not because the war. ranty descendeth from the father to his heir, but the cause is, for that if no such deed with warranty hath been made by the father, then the right of the tenements should descend to the heir, and the heir should convey the descent from his father, &c.
For if there be father and son, and the son purchase lands in fee, and the father of this disseiseth his son, and alieneth to another in fee by his deed, and by the same deed bind him and his heirs to warrant the same tenements, &c. and the father dieth ; now is the son barred to have the said tenements ; for he cannot by any suit, nor by other mean of law, have the same lands by cause of the said warranty. And this is a collateral warranty; and yet the warranty descendeth lineally from the father to the son.
But because if no such deed with warranty had been made, the son in no manner could convey the title which he hath to the tenements from his father unto him, inasmuch as his father had no estate in right in the lands; wherefore such warranty is called collateral warranty, inasmuch as he that maketh the warranty is collateral to the title of the tenements; and this is as much to say, as he to whom the warranty descendeth, could not convey to him the title which he hath in the tenements by him that made the warranty, in case that no such warranty were made.
Also, if there be grandfather, father, and son, and the grandfather is disseised, in whose possession the father releaseth by his deed with warranty, &c. and dieth and after