feoffment of, or alienation by, the cestuique SECT. VI.

use.

If cestuique use in fee-simple had made a feoffment in fee-simple, according to the sta tute 1 Rich. 3. c. 1. it seems, that the whole interest of the feoffees was thereby conveyed. So if there had been cestuique use in fee-simple, and he had made a feoffment in fee-simple, upon condition of reentry, and the condition was afterwards broken, and the cestuique use had entered; the estate of the feoffees was not restored by such entry.

The operation and effect of the stat. 1 Rich. 3.

in tail, &c.

But notwithstanding the alienation of ces- of cestuique use tuique use in fee had this effect by the statute of 1 Rich. 3. there was a distinction, when cestuique use had only a limited estate in the lands, as an estate for life or in tail, with a remainder over,

In a caseb in the seventh year of Edward the sixth's reign, one Davis, being seised in fee, enfeoffed J. L. and others in fee, in the 19th year of Henry the eighth, to the use of his wife for life, remainder to his brother in tail, remainder to B. H. in tail, remainder to the right heirs of the feoffor. Afterwards,

21 Hen. 7. 25. Bro. tit. Feof. al. Uses, pl. 18. Co. Litt. 103. a.

b Davis's case, Dyer, 88. b. 89..a.

(32.)

(33.)

and effect of the

SECT. VI. in the 24th Henry 8. Davis and his wife leThe operation vied a fine with proclamations to Sir H. W. stat. 1 Rich. 3. and others in fee, to the use of Sir H. W. and his heirs in fee. The brother, the first in remainder, joined in this fine. Sir T. W. son and heir of Sir H. W. bargained and sold the lands to the King in fee. After this the brother died without issue, and then the wife died. J. L. the surviving feoffee, brought his petition, and this matter was found by the verdict. In arrest of judgment it was alleged on the part, of the King, that the pe: tition did not lie for the feoffee, because the fee-simple of the use was lawfully conveyed to Sir H. W.; and therefore J. L. the feoffee, could not enter to revive the use; because he could not be seised of the fee-simple in the some manner as he was before the alienation. This case does not appear to have been deter, mined; and therefore Dyer adds, "et ideo quære inde."

(34.)

However, in a case sent from the Chancery for the opinion of the Judges, they were in 'favour of this opinion. It was thus: there was cestuique use in tail, remainder over in tail, remainder to the first cestuique use (in tail) in fee. Cestuique use in tail before the 27th Hen. 8. made a feoffment in fee to the use of himself for life, remainder to his first

Baskerville's case. Dy- Dyer, 58. a. Zouche's er, 329. b 330. a. Vide

case.

son (being heir in tail) and his wife for their

SICT. VI.

and effect of the

lives, remainder to the use of the heirs of The operation their bodies, remainder to the use of the stat. I Rich. 3. right heirs of the feoffor. The statute 27 Hen. 8. c. 10. is passed, and the feoffor dies. The son and his wife enter: and then the first feoffees enter, to revive the former uses in tail. Dyer and Manwood were both of opinion, that the entry of the feoffees was unlawful; for that the fee-simple in the use was lawfully transferred, and the right of the feoffees bound by the statute of 1 Rich. 3. Therefore, by their entry, the feoffees could not have their former estate; that is to say, the fee-simple. This opinion was sent into Chancery by those Judges, and Catlyn and Saunders were of the same opinion.

On the other hand, it was expressly stated, in the beginning of the reign of Henry the seventh, that if cestuique use in tail made. a feoffment in fee, the feoffees might enter after the death of cestuique use in tail, for the purpose of révesting the former uses; and that a feoffiment by cestuique use for life operated only upon his estate for life; and consequently did not create a forfeiture. This opinion, it seems, was adopted in the reign of Henry the eighth: for Brooked says,

c Bro. tit. Feof. al. Vide also Dyer, 57. b. p. Uses, pl. 22. 4 Hen. 7. 18. 1. as to a lease by cestuique Bro. tit. Fines, pl. 107. use for life.

(35.)

and effect of the

SECT. VI. in the 24th Henry 8. Davis and his wife leThe operation vied a fine with proclamations to Sir H. W. stat. 1 Ricb. 3. and others in fee, to the use of Sir H. W. and his heirs in fee. The brother, the first in remainder, joined in this fine. Sir T. W. son and heir of Sir H. W. bargained and sold the lands to the King in fee. After this the brother died without issue, and then the wife died. J. L. the surviving feoffee, brought his petition, and this matter was found by the verdict. In arrest of judgment it was alleged on the part, of the King, that the pe tition did not lie for the feoffee, because the fee-simple of the use was lawfully conveyed to Sir H. W.; and therefore J. L. the feoffee, could not enter to revive the use; because he could not be seised of the fee-simple in the some manner as he was before the alienation. This case does not appear to have been deter mined; and therefore Dyer adds, "et ideo quære inde."

(34.)

However, in a case sent from the Chancery for the opinion of the Judges, they were in 'favour of this opinion. It was thus: there was cestuique use in tail, remainder over in tail, remainder to the first cestuique use (in tail) in fee. Cestuique use in tail before the 27th Hen. 8. made a feoffment in fee to the use of himself for life, remainder to his first

Baskerville's case. Dy Dyer, 58. a. Zouche's er, 329. b 330. a. Vide

case.

SECT. VI.

and effect of the

son (being heir in tail) and his wife for their lives, remainder to the use of the heirs of The operation their bodies, remainder to the use of the stat. x Rich. 3. right heirs of the feoffor. The statute 27 Hen. 8. c. 10. is passed, and the feoffor dies. The son and his wife enter: and then the first feoffees enter, to revive the former uses in tail. Dyer and Manwood were both of opinion, that the entry of the feoffees was unlawful; for that the fee-simple in the use was lawfully transferred, and the right of the feoffees bound by the statute of 1 Rich. 3. Therefore, by their entry, the feoffees could not have their former estate; that is to say, the fee-simple. This opinion was sent into Chancery by those Judges, and Catlyn and Saunders were of the same opinion.

On the other hand, it was expressly stated, in the beginning of the reign of Henry the seventh, that if cestuique use in tail made. a feoffment in fee, the feoffees might enter after the death of cestuique use in tail, for the purpose of révesting the former uses; and that a feoffment by cestuique use for life operated only upon his estate for life; and consequently did not create a forfeiture. This opinion, it seems, was adopted in the reign of Henry the eighth: for Brooked says,

c Bro. tit. Feof. al. Vide also Dyer, 57. b. p. Uses, pl. 22. 4 Hen. 7. 18. 1. as to a lease by cestuique Bro. tit. Fines, pl. 107. use for life.

(35.)