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Sect. 4. The Note or Abstract. Norfolk, 1 Between David Edwards, esquire, complainant, and Abraham Barker,

to wit. ) esquire, and Cecilia his wife, and John Barker, esquire, deforciants of two messuages, two gardens, three hundred acres of land, one hundred acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale, whereupon a plea of covenant was summoned between them: to wit, that the said Abraham, Cecilia, and John have acknowledged the aforesaid tenements, with the ap. purtenances, to be the right of him the said David, as those which the said David hath of the gift of the aforesaid Abraham, Cecilia, and John; and those they have remised and quitted claim, from them and their heirs, to the aforesaid David and his heirs for ever. And, further, the same Abraham, Cecilia, and John have granted for themselves and their heirs, that they will warrant to the aforesaid David and his heirs the aforesaid tenements, with the appurtenances, against all men, for ever. And for this recog. nition, remise, quitclaim, warranty, fine, and agreement, the said David hath given to the said Abraham, Cecilia, and John two hundred pounds sterling.

Sect. 5. The Foot, Chirograph, or Indentures of the Fine. Norfolk, 1 This is the final agreement, made in the court of the lord the king at

to wit. S Westminster, from the day of Saint Michael in one month, in the twentyfirst year of the reign of the lord George the Second, by the grace of God, of Great Brit. ain, France, and Ireland, king, defender of the faith, and so forth, before John Willes, Thomas Abney, Thomas Burnet, and Thomas Birch, justices, and other faithful subjects of the lord the king then there present, between David Edwards, esquire, complainant, and Abraham Barker, esquire, and Cecilia his wife, and John Barker, esquire, deforciants, of two messuages, two gardens, three hundred acres of land, one hundred acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale, whereupon a plea of covenant was summoned between them in the said court; to wit, that the aforesaid Abraham, Cecilia, and John, have acknowledged the aforesaid tenements, with the appurtenances, to be the right of him the said David, as those wbich the said David hath of the gift of the aforesaid Abraham, Cecilia, and John; and those they have remised and quitted claim, from them and their heirs, to the aforesaid David and his heirs, for ever. And, further, the same Abraham, Cecilia, and John have granted for themselves and their heirs that they will warrant to the aforesaid David and his heirs the aforesaid tenements, with the appurtenances, against all men, for ever. And for this recognition, remise, quitclaim, warranty, fine, and agreement, the said David hath given to the said Abraham, Cecilia, and John two hundred pounds sterling.

SECT. 6. Proclamations, endorsed upon the Fine, according to the Statutes. The first proclamation was made the sixteenth day of November, in the term of Saint Michael, in the twenty-first year of the king within-written.

The second proclamation was made the fourth day of February, in the term of Saint Hilary, in the twenty-first year of the king within-written.

The third proclamation was made the thirteenth day of May, in the term of Easter, in the twenty-first year of the king within-written.

The fourth proclamation was made the twenty-eighth day of June, in the term of the Holy Trinity, in the twenty-second year of the king within-written.

A Common Recovery of Lands with 1 Double Voucher.

Sect. 1. Writ of Entry sur Disseisin in the Post ; or Præcipe. George the Second, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, and so forth, to the sheriff of Norfolk, greeting Command

1 Note, that if the recovery be had with single voucher, the parts marked “thus" in sect. 2 are omitted.

David Edwards, esquire, that, justly and without delay, he render to Francis Golding,
clerk two messuages, two gardens, three hundred acres of land, one hundred acres of
meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances,
in Dale, which he claims to be his right and inheritance, and into which the said
David hath not entry, unless after the disseisin, which Hugh Hunt thereof unjustly and
without judgment hath made to the aforesaid Francis, within thirty years now last
past, as he saith, and whereupon he complains that the aforesaid David deforceth him.
And unless he shall so do, and if the said Francis shall give you security of prosecuting
his claim, then summon by good summoners the said David, that he appear before our
justices at Westminster on the octave of Saint Martin, to show wherefore he hath not
done it : and have you there the summoners and this writ. Witness ourself at West-
minster, the twenty-ninth day of October, in the twenty-first year of our reign.
Pledges of prosecution, }

on John Doe.
" (Richard Roe.

John Den.

Summoner

rs of the within-named David,

Richard Fen.

Sect. 2. Exemplification of the Recovery Roll.

George the Second, by the grace of God, of Great Britain, France, and Ireland, king. defender of the faith, and so forth, to all to whom these our present letters shall come, greeting. Know ye that among the pleas of land enrolled at Westminster, before Sir John Willes, knight, and his fellows, our justices of the bench, of the term of Saint Michael, in the twenty-first year of our reign, upon the fifty-second roll it is thus contained : Entry returnable on the octave of Saint Martin. Norfolk, to wit: Francis Golding, clerk, in his proper person demandeth against David Edwards, esquire, two messuages, two gardens, three hundred acres of land, one hundred acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale, as his right and inheritance, and into which the said David hath not entry, unless after the disseisin which Hugh Hunt thereof unjustly, and without judgment, hath made to the aforesaid Francis, within thirty years now last past. And whereupon he saith that he himself was seised of the tenements aforesaid, with the appurtenances, in his demesne as of fee and right in time of peace, in the time of the lord the king that now is, by taking the profits thereof to the value [ 1 of six shillings and eight pence, and more, in rents, corn, and grass) : and into which the saith David hath not entry, unless as aforesaid]: and thereupon he bringeth suit (and good proof]. And the said David in his proper person comes and defendeth his right, when (and where it shall behove him), and thereupon voucheth to warranty “John Barker, esquire; who is present here in court in his proper person, and the tenements aforesaid, with the appurtenances to him freely warranteth (and prays that the said Francis may count against him). And hereupon the said Francis demandeth against the said John, tenant by his own warranty, the tenements aforesaid, with the appurtenances, in form aforesaid, &c. And whereupon he saith, that he himself was seised of the tenements aforesaid, with the appurtenances, in his demesne as of fee and right, in time of peace, in the time of the lord the king that now is, by taking the profits thereof to the value, &c. And into which, &c. And thereupon he bringeth suit, &c. And the aforesaid John, tenant by his own warranty, defends his right, when, &c. and thereupon he further voucheth to warranty" Jacob Morland; who is present here in court in his proper person, and the tenements aforesaid, with the appurtenances, to him freely warranteth, &c. And hereupon the said Frapcis demandeth against the said Jacob, tenant by his own warranty, the tenements aforesaid, with the appurtenances, in form aforesaid, &c. And whereupon he saith that he himself was seised of the tenements aforesaid, with the appurtenances, in his demesne as of fee and right, in time of peace, in the time of the lord the king that now is, by taking the profits thereof to the value, &c. And into which, &c. And thereupon he bringeth suit, &c. And the aforesaid Jacob, tenant by his

1 The clauses between hooks are no otherwise expressed in the record than by an &c.

own warranty, defends his right, when, &c. And saith that the aforesaid Hugh did not disseise the aforesaid Francis of the tenements aforesaid, as the aforesaid Francis by his writ and count aforesaid above doth suppose : and of this he puts himself upon the country. And the aforesaid Francis thereupon craveth leave to imparl ; and he hath it. And afterwards the aforesaid Francis cometh again here into court, in this same term in his proper person, and the aforesaid Jacob, though solemnly called, cometh not again, but hath departed in contempt of the court, and maketh default. Therefore it is considered that the aforesaid Francis do recover his seisin against the aforesaid David of the tenements aforesaid, with the appurtenances : and that the said David have of the land of the aforesaid “John, to the value (of the tenements aforesaid); and, further, that the said John have of the land of the said " Jacob to the value (of the tenements aforesaid). And the said Jacob in mercy. And hereupon the said Francis prays a writ of the lord the king, to be directed to the sheriff of the county aforesaid, to cause him to have full seisin of the tenements aforesaid, with the appurtenances : and it is granted unto him, returnable here without delay. Afterwards, that is to say, the twenty-eighth day of November in this same term, here cometh the said Francis in his proper person ; and the sheriff, namely, Sir Charles Thompson, knight, now sendeth, that he by virtue of the writ aforesaid to him directed, on the twenty-fourth day of the same month, did cause the said Francis to have full seisin of the tenements aforesaid, with the appurtenances, as he was commanded. All and singular which premises, at the request of the said Francis, by the tenor of these presents, we have held good to be exemplified. In testimony whereof we have caused our seal appointed for sealing writs in the Bench aforesaid to be affixed to these presents. Witness, Sir John Willes, knight, at Westminster, the twenty-eighth day of November, in the twenty-first year of our reign.

DETERMINABLE AND BASE FEES. “Intendments should be guided by the rules of the law, and not by idle conceits, and to prove this further, 13 Hen. VII., 11 Hen. VII., 21 Hen. VI. fo. 37, it is held, and the law seems plain, that if land be given to one and his beirs so long as J. S. has heirs of his body, the donee has a fee and may alien it not. withstanding there be a condition that he shall not alien; and 11 lib. Assize, p. 8, a like case is put and held as above : and there if land be given to one and his heirs so long as J. S. or his heirs may enjoy the Manor of D., those words (so long) are utterly vain and idle, and do not abridge the estate ... and yet it is to be admitted that one may have an estate in fee determinable, but never by the act and consent of the parties with. ont any entry for condition broken or title defeasible ; and to show briefly how this will be is now convenient, and it will be if the lord of a villein being tenant in tail enters on the land, &c., he and his heirs will enjoy the land so long as the villein has issue, and then his estate determines ; so he who recovers rent against a tenant in tail,

que ill teign in tail' (out of what he holds in tail ?]; or (suppose] that tenant in tail of land be attainted of treason, the king will have a fee of the land entailed determinable on death without issue, and has no greater estate ; but these estates last mentioned are not made by the first creation of the estates but by matter coming afterwards by other means.” Per ANDERSON, C. J., in Christopher Corbet's Case, 2 And. 134, 138, 139.

“Before the statute of Quia emptores (18 Edw. 1) an estate might have been granted to A. B. and his heirs, so long as C. D. and his issue should live, or so long as C. D. and his heirs should be tenants of the manor of Dale; and upon C. D.'s ceasing to have issue, or to be tenant of the manor of Dale, the estate reverted to the donor, not as a condition broken, of which the donor, or his heir, might take advantage by entry, but as a principle of tenure, in the nature of an escheat upon the death of a tenant in feesimple without heirs general. But the statute of Quia emptores destroys the immediate tenure between the donor and donee, in cases where the fee is granted; and consequently there can now be no reverter, or any estate or possibility of a reversion remaining in the donor after an estate in fee granted by him. This conclusion directly follows from the doctrine of tenures, and the effect of the statute of Quia emptores upon that doctrine. The proposition does not require the aid of decided cases; but the passage

SECTION III.

ESTATES FOR LIFE.

Lit. $$ 32-36, 56, 57. Tenant in fee tail after possibility of issue extinct is, where tenements are given to a man and to his wife in especial tail, if one of them die without issue, the survivor is tenant in tail after possibility of issue extinct. And if they have issue, and the one die, albeit that during the life of the issue, the survivor shall not be said tenant in tail after possibility of issue extinct; yet if the issue die without issue, so as there be not any issue alive which may inherit by force of the tail, then the surviving party of the donees is tenant in tail after possibility of issue extinct.

Also, if tenements be given to a man and to his heirs which he shall beget on the body of his wife, in this case the wife bath nothing in the tenements, and the husband is seised as donee in especial tail. And in this case, if the wife die without issue of her body begotten by her husband, then the husband is tenant in tail after possibility of issue extinct.

And note, that none can be tenant in tail after possibility of issue extinct, but one of the donees, or the donee in especial tail. For the donce in general tail cannot be said to be tenant in tail after possibility of issue extinct; because always during his life, he may by possibility have issue which may inherit by force of the same entail. And so in the same manner the issue, which is heir to the donees in especial tail, cannot be tenant in tail after possibility of issue extinct, for the reason abovesaid.

And note, that tenant in tail after possibility of issue extinct shall not

in 2 And. 138, contains an accurate exposition of the law upon this subject: If land be given to A. and his heirs, so long as J. S. has heirs of his body, the donee has fee, and may alien it. 13 Hen. 7; 11 Hen. 7; 21 Hen. 6, fol. 37; and says the law seems to be plain in it; and cites 11 Ass. 8, where the s. o. is put and held as before; and that there if the land be given to one and his heirs, so long as J. S. and his heirs shall enjoy the manor of D., those words (so long) are entirely void and idle, and do not abridge the estate.'

“The references in this passage (with the exception of the 11 Ass. 8) are not in the report correctly stated; but they are discovered in 13 Hen. 7, Easter Term, fol. 24; 11 Hen. 7, pl. 25; 21 Hen. 6, Hill, pl. 21. It will be proper to refer to the case first mentioned; premising, that, by the common law, where an absolute estate in fee simple was granted, no restraint could be placed on the alienation of it; inasmuch as such restraint would be repugnant to the grant itself. Upon a question in the case referred to, whether a condition restraining alienation upon the grant of an estate tail since the statute De donis was valid, Vavisour thought it valid; but added, that he agreed that such condition imposed on a feoffee in fee simple, so long as J. S. has issue, was void." 1 Sand. Uses (5th ed.) 208-210. See Gray, Perpetuities, $$ 31-41.

be punished of waste, for the inheritance that once was in him, 10 H. 6. 1. But he in the reversion may enter if he alien in fee, 45 E. 3. 22.

Tenant by the curtesy of England is, where a man taketh a wife seised in fee simple or in fee tail general, or seised as heir in tail especial, and hath issue by the same wife male or female born alive, albeit the issue after dieth or liveth, yet if the wife dies, the husband shall hold the land during his life by the law of England. And he is called tenant by the curtesy of England, because this is used in no other realm but in England only.

And some have said, that he shall not be tenant by the curtesy, unless the child, which he hath by his wife, be heard cry; for by the cry it is proved, that the child was born alive. Therefore Quære.

Tenant in dower is, where a man is seised of certain lands or tenements in fee simple, fee tail general, or as heir in special tail, and taketh a wife, and dieth, the wife after the decease of her husband shall be endowed of the third part of such lands and tenements as were her husband's at any time during the coverture, to have and to hold to the same wife in severalty by metes and bounds for term of her life, whether she hath issue by her husband or no, and of what age soever the wife be, so as she be past the age of nine years at the time of the death of her husband (for she must be above nine years old at the time of the decease of her husband], otherwise she shall not be endowed.

Tenant for term of life is, where a man letteth lands or tenements to another for term of the life of the lessee, or for term of the life of another man. In this case the lessee is tenant for term of life. But by common speech he which holdeth for term of his own life, is called tenant for term of his life, and he which holdeth for term of another's life, is called tenant for term of another man's life (tenant pur terme ďauter vie).

And it is to be understood, that there is feoffor and feoffee, donor and donee, lessor and lessee. Feoffor is properly where a man enfeoffs another in any lands or tenements in fee simple, he which maketh the feoffment is called the feoffor, and he to whom the feoffment is made is called the feoffee. And the donor is properly where a man giveth certain lands or tenements to another in tail, he which maketh the gift is called the donor, and he to whom the gift is made is called the donee. And the lessor is properly where a man letteth to another lands or tenements for term of life, or for term of years, or to hold at will, he which maketh the lease is called lessor, and he to whom the lease is made is called lessee. And every one which hath an estate in any lands or tenements for term of his own or another man's life, is called tenant of freehold, and none other of a lesser estate can have a freehold: but they of a greater estate have a freehold ; for he in fee simple hath a freehold, and tenant in tail hath a freehold, &c.

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