« PreviousContinue »
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 tbe issue of the second wife may not inberit.
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 certitulinem 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 he 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 bis 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 a gift in tail made to the heirs males ought to convey his descent whole by the heirs males. Also in this case the donor may enter, for that the donee is dead without issue male in the law, insomuch as the issue of the daughter cannot convey to himself the descent by an heir male.
Note ON WARRANTY AND ON FINES AND RECOVERIES. The oliject of the St. De Donis was to prevent the alienation of entailed estates. The history of the mode in which this object was defeated is curious. (1) It was held that if any one whose heir a tenant in tail was had warranted the estate to a stranger, such tenant was barred if assets had descended on him from the warrantor ; and where the warranty had been given by one from whom the estate tail could not possibly have descended, as a younger brother, the tenant in tail was barred without assets. Warranty of this latter sort was called collateral warranty. The principal rules governing lineal and collateral warranty are given in the sections quoted below from Littleton. (2) The courts allowed a collusive suit to be brought by the one to whom a tenant in tail wished to convey the land ; and a judgment in this suit, which was called a common recovery, barred not only the issue in tail, but also all reversioners and remainder-men, except the Crown. The validity of common recoveries to disentail land seems to have been first judicially recognized in Taltarum's Case, Y. B. 12 Edw. IV. 19 (1473). (3) The Sts. of 4 Hen. VII. (1490) c. 24, and 32 Hen. VIII. (1540) c. 36, gave the same general effect to fines, which were another and very ancient species of collusive suit, as had been given to common recoveries. A tine levied with proclamations, in accordance with the provisions of those statutes, bound immediately all persons claiming under the cog. uizor, as the person levying the fine was called, and bound, unless claim was made within five years, all other persons except the Crown.
Simpler methods of docking entails have been adopted in recent times. In most of the United States, estates tail have been abolished. See Stimson, Am. Stat. Law, § 1313.
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 prescrip. tion, 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 loril, 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 re. ceived 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 execution 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 talc 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 ct 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. (Sr. 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 whoin no beritage 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 de. scend 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 mau seised of lands in fee maketh a feoffment by his deed to another, and binds himself and his heirs to warranty, 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 tenemente ; for he cannot by any suit, nor by other mean of law, have the same lands hy cause of the said warranty. And this is a collateral warranty; and yet the warranty descendeth lineally from the father to the
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, inas. much 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 the grandfather dieth ; now the son is barred to have the tenements by the warranty of the father. And this is called a lineal warranty, because if no such warranty were, the son could not convey the right of the tenements to him, nor show how he is heir to the grandfather but by means of the father.
Also, if a man hath issue two sons and is disseised, and the eldest son release to the disseisor by his deed with warranty, &c. and dies without issue, and afterwards the father dieth, this is a lineal warranty to the younger son, because albeit the elilest son died in the life of the father, yet by possibility it might have been, that he night convey to him the title of the land by his elder brother, if no such warranty lal been. For it might be, that after the death of the father the elder brother entered into the tenements and died without issue, and then the younger son shall convey to him the title by the elder son. But in this case if the younger son releaseth with warranty to the disseisor, and dieth without issue, this is a collateral warranty to the elder son, because that of such land as was the father's, the elder by no possibility can convey to him the title by means of the younger son.
Also, if tenant in tail hath issue three sons, and discontinue the tail in fee, and the middle son release by his deed to the discontinuee, and bind him and his heirs to warranty, &c. and after the tenant in tail dieth, and the middle son dieth with. ont issue, now the eldest son is barred to have any recovery by writ of formedon, because the warranty of the middle brother is collateral to him, inasmuch as he can hy no means convey to him by force of the tail any descent by the middle, and therefore this is a collateral warranty. But in this case if the eldest son die without issue, now the youngest brother may well have a writ of formedon in the discender, and shall recover the same land, because the warranty of the middle is lineal to the youngest son, for that it might be that by possibility the middle might be seised by foree of the tail after the death of his eldest brother, and then the youngest brother might convey his title of descent by the middle brother.
Also if tenant in tail discontinue the tail, and hath issue and dieth, and the uncle of the issue release to the discontinuee with warranty, &c. and dieth without issue, this is a collateral warranty to the issue in tail, because the warranty descendeth upon the issue, that cannot convey himself to the entail by means of his uncle.
Also, if the tenant in tail hath issue two daughters and dieth, and the elder entereth into the whole, and thereof maketh a feofsment in fee with warranty, &c. and after the elder daughter dieth without issue ; in this case the younger daughter is barred as to the one moiety, and as to the other moiety she is not barred. For as to the moiety which belongeth to the younger daughter, she is barred, because as to this part she cannot convey the descent by means of her elder sister, and therefore as to this moiety, this is a collateral warranty. But as to the other moiety, which belongeth to her elder sister, the warranty is no bar to the younger sister, because she may convey her descent as to that moiety which belongeth to her elder sister by the same elder sister, so as to this moiety which belongeth to the elder sister the warranty is lineal to the younger sister.
And note, that as to him that demandeth fee simple by any of his ancestors, he shall be barred by warranty lineal which descendeth upon himn, unless he be restrained by some statute.
But he that demandeth fee tail by writ of formedon in discender shall not be barred by lineal warranty, unless he hath assets, by descent in fee simple by the same ancestor that made the warranty. But collateral warranty is a bar to him that de. mandeth fee, and also to him that demandeth fee tail without any other descent of fee simple, except in cases which are restrained by the statutes, and in other cases for certain causes, as shall be said hereafter.
And note, that in every case where a man demandeth lands in fee tail by writ of formedon, if any of the issue in tail that hath possession, or that hath not possession, make a warranty &c. if he which sueth the writ of formedon might by any possibil. ity, by matter which might be en fait, convey to him, by him that made the warranty per formam doni, this is a lineal warranty, and not collateral.
Also, if a father giveth land to his eldest son, to have and to hold to him and to the
heirs males of his body begotten, the remainder to the second son, &c. if the eldest son alieneth in fee with warranty, &c. and hath issue female, and dieth without issue male, this is no collateral warranty to the second son, for he shall not be barred of his action of formedon in the remainder, because the warranty descended to the daughter of the elder son, and not to the second son ; for every warranty which descends, descendeth to him that is heir to him who made the warranty, by the common law.
Co. Lit. 393 b. A lineal warranty and assets is a good plea in a formedon in the discender ; wherein it is to be known that if tenant in tail alieneth with warranty, and leave assets to descend ; if the issue in tail doth alien the assets, and die, the issue of that issue shall recover the land, because the lineal warranty descendeth only to him without assets ; for neither the pleading of the warranty without the assets, nor the assets without the warranty, is any bar in the formedon in the discender. But if the issue to whom the warranty and assets descended had brought a formedon, and by judgment had been barred by reason of the warranty and assets ; in that case, albeit he alieneth the assets, yet the estate tail is barred for ever ; for a bar in a formedon in the discender, which is a writ of the highest nature that an issue in tail can have, is a good bar in any other formedon in the discender brought afterwards upon the same gift.
“So as the doctrine of the binding of lineal and collateral warranties, or their not binding, is an extraction out of men's brains, and speculations, many scores of years after the Statute De donis.
“ And if Littleton (whose memory I much honor) had taken that plain way in resolv. ing his many excellent cases in his chapter of warranty, of saying the warranty of the ancestor doth not bind in this case, because it is restrained by the Statute of Glocester or the Statute De donis, and it doth bind in this case, as at the common law, because not restrained by either statute (for when he wrote there were no other statutes restraining warranties, there is now a third 11 H. 7), his doctrine of warranties had been more clear and satisfactory than now it is, being intricated under the terms of lineal and collateral ; for that in truth is the genuine resolution of most, if not all, his cases: for no man's warranty doth bind, or not, directly, and à priori, because it is lineal or collateral ; for no statute restrains any warranty under those terms from binding, nor no law institutes any warranty in those terms; but those are restraints by consequent only from the restraints of warranties made by statutes.” Per VAUGHAN, C. J., in Bole v. Horton, Vaugh. 360, 375.
St. 4 Hen. VII. (1490) c. 24 Item, where it was ordained in the time of King Edward the First, by the statute De finibus, that notes and fines to be levied in the King's court afore his justices should be openly and solemnly read, and that pleas in the mean time should cease, and this to be done by two days in the week, after the discretion of the justices, as in the said statute more plainly appeareth : The King our Sovereign Lord considereth, That fines ought to be of the greatest strength to avoid strifes and debates, and to be a final end and conclusion ; and of such effect were taken afore a statute made of non-claim, and now is used to the contrary, to the universal trouble of the King's subjects, will therefore it be ordained, by the advice of the Lords Spiritual and Temporal, and the Commons, in the said Parliament assembled, and by the authority of the same, That after the ingrossing of every fine to be levied after the feast of Easter, that shall be in the year of our Lord 1490, in the King's court, afore his justices of the Common Place, of any lands, tenements, or any other hereditaments, the same fine be openly and solemnly read and proclaimed in the same court the same term, and in three terms then next following the same ingrossing in the same court, at four several days in every term ; and in the same time that it is so read and proclaimed, all pleas to cease. And the said proclamations so had and made, the said fine to be a final end, and conclude as well privies as strangers to the same, except women covert (other than been parties to the said fine) and every person then being within age of twenty-one years, in prison, or out of this realm, or not of whole mind at the time of the said fine levied, not parties to such fine ; and saving to every person or per