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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 ten. ements 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 teneinents 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 Thoni pson, 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 heirs so long as J. S. has heirs of his body, the donee has a fee and may alien it notwithstanding 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 conse. quently 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 donee 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. c. 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." i Sand. Uses (5th ed.) 208–210. See Gray, Perpetuities, $S 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 wise 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 đauter 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
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 freebold; for he in fee simple hath a freehold, and tenant in tail hath a freehold, &c.
ESTATES LESS THAN FREEHOLD.
Lit. § 58. Tenant for term of years is where a man letteth lands or tenements to another for term of certain years, after the number of years that is accorded between the lessor and the lessee. And when the lessee entereth by force of the lease, then is he tenant for term of years; and if the lessor in such case reserve to him a yearly rent upon such lease, he may choose for to distrain for the rent in the tenements letten, or else he may have an action of debt for the arrearages against the lessee.
Co. Lit. 46 b. The lessee before entry hath an interest, interesse termini, grantable to another.
Lit. § 68. Tenant at will is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him.
Co. Lit. 57 b. There is a great diversity between a tenant at will and a tenant at sufferance; for tenant at will is always by right, and tenant at sufferance entereth by a lawful lease, and holdeth over by wrong. A tenant at sufferance is he that at the first came in by lawful demise, and after his estate ended continueth in possession and wrongfully holdeth over. As tenant pur terme d'auter vie continueth in possession after the decease of Ce que vie, or tenant for years holdeth over his term ; the lessor cannot have an action of trespass before entry.
REVERSIONS AND REMAINDERS.
Lit. § 19. 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 (unlesse it be for fealty) until the fourtlı 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.
Co. Lit. 22 b. A reversion is where the residue of the estate always doth continue in him that made the particular estate, or where the particular estate is derived out of his estate, as here in the case of Litt. Tenant in fee simple maketh gift in tail, so it is of a lease for life, or for years.
Co. Lit. 23 a. “ The donecs and their issue shall do to the donor, and to his heirs the like services, as the donor doth to his lord next paramount.” The reason of this is, that when by construction of the said statute there was a reversion settled in the donor, for that the donee had an estate of inheritance, the judges resolved that he should hold of his donor, as his donor held over: as if the tenant had made a feoffment in fee at the common law, the feoffee should have holden of the feoffor as he held over, and before the statute of Westm]. 2, the donee had holden of the donor as of his person, and now of him as of his reversion : but if a man make a lease for life, or years, and reserve nothing, he shall have fealty only and no rent, though the lessor hold over by rent, &c.
Co. Lit. 143 a. “ Remainder,” in legal Latin, is remanere, coming of the Latin word remaneo ; for that it is a remainder or remnant of an estate in lands or tenements, expectant upon a particular estate created together with the same at one time.
Co. Lit. 18 a. And yet in several persons by act in law, a reversion may be in fee simple in one, and a fee simple determinable in another by matter ex post facto ; as if a gift in tail be made to a villein, and the lord enter, the lord hath a fee simple qualified, and the donor a reversion in fee. But if the lord infeoffe the donor, now both fee simples are united, and he hath but one fee simple in him. But one fee simple cannot depend upon another by the grant of the party; as if lands be given to A., so long as B. hath heirs of his body, the remainder over in fee, the remainder is void.
2 Inst. 505. But yet tenant for life, and tenant in tail are not wholly excluded by force of these words [in fee simple] out of this Statute [Quia emptores, c. 3], for where the whole fee simple passeth out of the feoffor, there this Act extendeth to estates for life and in tail; as if an estate for life or in tail be made of land, the remainder in fee, there then tenant for life or in tail shall hold de capitali domino by force of this act, but otherwise it is when a reversion remaineth in the donor or lessor.
LIT. $$ 241, 242, 265, 277, 280-282, 287, 292, 294, 309, 319, 321. Parceners are of two sorts, to wit; parceners according to the course of the common law, and parceners according to the custom. Parceners