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ilucatur sine voluntate, et sic quod non sit attendendum." The sense is, that where a former will is made, and after a later will, the reason why, without an express revocation of the former will, it is by implication revoked, is because of the repugnancy between the disposition of the former and the later.
But where there is such a derogatory clause, there can be gathered no such repugnancy : because it seemeth the testator had a purpose at the making of the first will to make some show of a new will, which nevertheless his intention was should not take place: but this was answered before; for if that clause were allowed to be good until a revocation, then could no revocation at all be made, and therefore it must needs be void by operation of law at first. Thus much of clausula derogatoria.
Actus inceplus, cujus per/eclio pendet ex voluntate partium, revocari potest; si autem pendet eje voluntate terlias periono?, vel ex contingenti, revocari non potest.
In acts which are fully executed and consummate, the law makes this difference, that if the first parties have put it in the power of a third person, or of a contingency, to give a perfection to their acts, then they have put it out of their own reach and liberty; and therefore there is no reason they should revoke them: but if the consummation depend upon the same consent, which was the inception, then the law accounteth it in vain to restrain them from revoking of it; for as they may frustrate it by omission and non feisance, at a certain time, or in a certain sort or circumstance, so the law permitteth them to dissolve it by an express consent before that time, or without that circumstance.
Therefore if two exchange land by uiH ?Tl?l<*. deed, or without deed, and neither enter, this may make a revocation or dissolution of the same exchange by mutual consent, so it be by deed, but not by parole; for as much as the making of an exchange needeth no deed, because it is to be perfected by entry, which is a ceremony notorious in the nature of livery; but it cannot be dissolved but by deed, because it dischargeth that which is but title.
So if I contract with I. D. that if he lay me into my cellar three tuns of wine before Mich, that I will bring to his garner twenty quarters of wheat before Christmas, before either of these days the parties may by assent dissolve the contract; but after the first day there is a perfection given to the contract by action on the one side, and they may make cross releases by deed or parole, but never dissolve the contract; for there is a difference between dissolving the contract, ancLrelease or surrender of the thing contracted for: as if lessee for twenty years make a lease for ten years, and after he take a new lease for five years, he is in only of his lease for five years, and yet this cannot inure by way of surrender: for a petty lease derived out of a greater cannot be surrendered back again, but it in
ureth only by dissolution of contract; for a lease of land is but a contract executory from time to time of the profits of the land, to arise as a man may sell his corn or his tithe to spring or to be perceived for divers future years.
But to return from our digression: on the other side, if I contract with you for cloth at such a price as I. S. shall name; there if I. S. refuse to name, the contract is void; but the parties cannot discharge it, because they have put it in the power of the third person to perfect.
So if I grant my reversion, though ,, H 7 ,9
this be an imperfect act before ntturn- 2 R. 2. F. at. • »i_ .. . ■ .i turnment. 8
ment; yet because the atturnmentis the
act of a stranger, this is not simply revocable, but
by a policy or circumstance in law, as by levying a
fine, or making a bargain and sale, or the like.
So if I present a clerk to the bishop, Ed ( now can I not revoke this represent- Q. imp. \ss. ation, because I have put it out of my- J^&j;!' ^ self, that is, in the bishop, by admission, to perfect my act begun.
The same difference appeareth in |4 4 2 nominations and elections; as if I enfeoff I. S. upon condition to enfeoff such a one as I. D. shall name within a year, and I. D. name I. B. yet before the feoffment, and within the year, I. D. may countermand his nomination, and name again, because no interest passeth out of him. But if I enfeoff I. S. to the use of such a one as I. D. shall name within a year, then if I. D. name I. B. it is not revocable, because the use passeth presently by operation of law.
So in judicial acts the rule of the civil law holdeth, "sententia interlocutoria revocari potest, definitiva non potest;" that is, that an order may be revoked, but a judgment cannot; and the reason is, because there is a title of execution or of bar given presently unto the party upon judgment, and so it is out of the judge to revoke, in courts ordered by the common law.
Clausula vet dispositio inutilis per pra?sumptionem vel causam remotam, ex post facto non fulcitur.
• " Clausula vel dispositio inutilis" are said, when the act or the words do work or express no more than law by intendment would have supplied; and therefore the doubling or iterating of that and no more, which the conceit of the law doth in a sort prevent and preoccupate, is reputed nugation, and is not supported and made of substance either by a foreign intendment of some purpose, in regard whereof it might be material, nor upon any cause or matter emerging afterwards, which may induce an operation of those idle words or acts.
And therefore if a man devise land H at this day to his son and heir, this is r.eord. 193. a void devise, because the disposition devises l. of law did cast the same upon the heir by descent; and yet if it be knight's service land, and the heir within age, if he take by the devise, he shall have two parts of the profits to his own use, and the guardian shall have benefit but of the third j but if a man devise land to his two daughters, 29H 8-D 42 having no sons, then the devise is good, because he doth alter the disposition of the law; for by the law they should take in coparcenary, but by the devise they shall take jointly; and this is not any foreign collateral purpose, but in point of taking of estate. he live so long] is no more than the law saith, but it doth not appear upon the same conveyance or act, that this limitation is nugatory, but it is foreign matter in respect of the truth of the state whence the lease is derived: and therefore if lessee for life make a feoffment in fee, yet the state of the lessee for years is not enlarged against the feoffee; otherwise had it been if such limitation had not been, but that it had been left only to the law.
So if a man make a feoffment in fee to the use of his last will and testament, these words of special limitation are void, and the law reserveth the ancient use to the feoffer and his heirs; and yet if the words might stand, then should it be authority by his will to declare and appoint uses, and then though it were knight's service land, he might dispose the whole. As if a man make a feoffment in fee, to the use of the will and testament of a stranger, there the stranger may declare an use of the whole by his will, notwithstanding it be knight's service land; but the reason of the principal case is, because uses before the statute of 27 were to have been disposed by will, and therefore before that statute an use limited in the form aforesaid, was but a frivolous limitation, in regard that the old use which the law reserved was deviseable; and the 3 Ed. 1statute of 27 altereth not the law, as to the creating and limiting of any use, and therefore after that statute, and before the statute of wills, when no lands could have been devised, yet it was a void limitation as before, and so continueth to this day.
But if I make a feoffment in fee to the use of my last will and testament, thereby to declare any estate tail and no greater estate, and after my death, and after such estate declared shall expire, or in default of such declaration then to the use of 59Ed.4. a' 8. and his heirs, this is a good limitation; and I may by my will declare an use of the whole land to a stranger, though it be held in knight's service, and yet I have an estate in fee-simple by virtue of the old use during life. »u a no n So if I make a feoffment in fee to
Si rl. 8, yx II. _ .... .
20 H. 8. 8. Dy. the use of my right heirs, this is a void 7 El. 237. Dy. limitation, and the use reserved by the law doth take place: and yet if the limitation should be good the heir should come in by way of purchase, who otherwise cometh in by descent; but this is biit a circumstance which the law respecteth not, as was proved before.
„, „ But if I make a feoffment in fee to
1U Uy. * t •
the use of my right heirs, and the right heirs of I. S. this is a good use, because I have altered the disposition of law; neither is it void for a moiety, but both our right heirs when they come in being shall take by joint purchase; and he to 2 Ed a 29 whom the first falleth shall take the 30 Ed. 3. Fiti. whole, subject nevertheless to his com]>cvi>e» panion's title, so it have not descended from the first heir to the heir of the heir: for a man cannot be joint-tenant claiming by purchase, and the other by descent, because they be several titles.
So if a man having land on the part of his mother make a feoffment in fee to the use of himself and
his heirs, this use, though expressed, 4M I34 pl shall not go to him and the heirs on the part of his father as a new purchase, no more than it should have done if it had been a feoffment in fee nakedly without consideration, for the intendment is remote. But if baron and feme be, and they join in a fine of the feme's Browne, ■i'td. lands, and express an use to the husband |_- ^19 Hand wife and their heirs : this limitation shall give a joint estate by entierties to them both, because the intendment of law would have conveyed the use to the feme alone. And thus much touching foreign intendments.
For matter ex post facto, if a lease for life be made to two, and the survivor of them, and they after make partition: now these words ^ g_ Fjtx.
Tand to the survivor of them] should pan '6. l H. a L . .. .. 46. PL 7. Dy.
seem to carry purpose as a limitation,
that either of them should be stated in his part for
both their lives severally; but yet the law at the
first construeth the words but words of dilating to
describe a joint estate; but if one of them die after
partition, there shall be no occupant, but his part
So if a man grant a rent-charge out of ten acres, and grant farther that the whole rent shall issue out of every acre, and distress accordingly, and afterwards the grantee purchase an acre: now this clause shall seem to be material to uphold the whole rent; but yet nevertheless the law at first accepteth of these words but as words of explanation, and then notwithstanding the whole rent is extinct.
So if a gift in tail be made upon condition, that if tenant in tail die without J^fj issue, it shall be lawful for the donor to enter; and the donee discontinue and die without issue: now this condition should seem material to give him benefit of entry, but because it did at the first limit the estate according to the limitation in law, it worketh nothing upon this matter emergent afterward.
So if a gift in tail be made of lands held in knighfs service with an express reservation of the same service, whereby the land is held over, and the gift is with warranty, and the land is evicted, and other land recovered in value against the donor, held in socage, now the tenure which the law makes between the donor i donee shall be in the socage, not in knight's i because the first reservation was according to the ovelty of service, which was no more than the law would have reserved.
But if a gift in tail had been made of lands held in socage with a reservation of knight's service tenure, and with warranty, then, because the intendment of law is altered, the new land shall be held by the same service the lost land was, without any regard at'all to the tenure paramount; and thus much of matter ex post facto.
This rule faileth where that the law saith as much as the party, but upon foreign matter not pregnant and appearing upon the same act or conveyance, as if lessee for life be, and he lets for twenty years, if he live so long; this limitation [if
So if tenant after possibility make a Kebfe. 24 Ed.r lease for years, and the donor confirms 3^28. Fii*- pL to the lessee to hold without impeachment of waste during the life of tenant in tail, this is no more than the law saith; but the privilege of tenant after possibility is foreign matter, as to the lease and confirmation: and therefore if tenant after possibility do surrender, yet the lessee shall hold dispunishable of waste; otherwise had it been if no such confirmation had been made.
Also heed must be given that it be indeed the same thing which the law intendeth, and which the party expresseth, and not only like or resembling, 2D Ed. 3 Fit/ 7 and such as may stand both together: 31 E. l. Vouch, for if I let land for life rendering rent, and by my deed warrant the same land, this warranty in law and warranty in deed are not the same thing, but may both stand together.
There remaineth yet a great question upon this rule.
A principal reason whereupon this rule is built should seem to be, because such acts or clauses are thought to be but declaratory, and added upon ignorance of the law, and ex consuetudine clericorum, upon observing of a common form, and not upon purpose or meaning, and therefore whether by particular and precise words a man may not control the intendment of the law.
To this I answer, that no precise nor express words will control this intendment of law; but as the general words are void, because they say that which the law saith; and so are thought to be against the law: and therefore if I devise my land being knight's service tenure to my heir, and express my intention to be, that the one part should descend to him as the third part appointed by the statute, and the other he shall take by devise to his own use; yet this is void: for the law saith, he is in by descent of the whole, and I say he shall be in by devise, which is against the law.
But if I make a gift in tail, and say upon condition, that if tenant in tail discontinue and after die without issue, it shall be lawful for me to enter; this is a good clause to make a condition, because it is but in one case and doth not cross the law generally: for if the tenant in tail in that case be disseised, and a descent cast, and die without issue, I that am the donor shall not enter.
But if the clause had been provided, that if tenant in tail discontinue, or suffer a descent, or do any other act whatsoever, that after his death without
* Semble clerement le ley d'estre contrary in ambideux cases, car lou est sans fait, est livery solement de cestui in le rem' et surr" de partic' ten', autrement sera forfeiture de son estate, et lou est per fait, le livery passa solement de tenant,
issue it shall be lawful for me to enter: now this is a void condition, for it importeth a repugnancy tn law; as if I would overrule that where the law saith I am put to my action, I nevertheless will reserve to myself an entry.
Non videtur eonsensum retinuisse si quit ex prtescripto minantis aliquid immutavit.
Although choice and election be a badge of consent, yet if the first ground of the act be duresse, the law will not construe that the duresse doth determine, if the party duressed do make any notion or offer.
Therefore if a party menace me, except I make unto him a bond of 40/. and I tell him that I will not do it, but I will make unto him a bond of 201. the law shall not expound this bond to be voluntary, but shall rather make construction that my mind and courage is not to enter into the greater bond for any menace, and yet that I enter by compulsion notwithstanding into the lesser.
But if I will draw any consideration to myself, as if I had said, I will enter into your bond of 40/. if you will deliver me that piece of plate, now the duresse is discharged ; and yet if it had been moved from the duressor, who had said at the first, You shall take this piece of plate, and make me a bond of 401. now the gift of the plate had been good, and yet the bond shall be avoided by duresse.
Licita bene miscentur, formula nisi juris obstet.
The law giveth that favour to lawful acts, that although they be executed by several authorities, yet the whole act is good.
As when tenant for life is the remainder in fee, and they join in a livery by deed or without, this is one good entire livery drawn from them both, and doth not inure to a surrender of the particular estate, if it be without deed; * or confirmation of those in the remainder, if it be by deed; but they are all parties to the livery.
So if tenant for life the remainder in fee be, and they join in granting a rent, this is one solid rent out of both their estates, and no double rent, or rent by confirmation.
So if tenant in tail be at this day, and he make a lease for three lives, and his own, this is a good lease, and warranted by the statute of Q 32 H. VIII. and yet it is good in part UCTy by the authority which tenant in tail hath by the common law, that is, for his own life, and in part by the authority which he hath by the statute, that is, for the other three lives.
So if a man, seized of lands deviseable by custom and of other land held in knight's service, devise all his lands, this is a good devise of all the land cus
car il ad le frank-tenement, vide accordant Sur Co. 1. 1. 79. b. 77. a Com. Plow. 59. a. 140. 2 H. 5. 7. 13 H. 7. 14. 13 Ed. 4. 4. a. 27 H. 8. 13 M. 16 et 17. El Dy. 339.
tomary by the common law, and of two parts of the other land by the statutes.
So in the Star-chamber a sentence may be good, grounded in part upon the authority given the court by the statute of 3 H. VII. and in part upon that ancient authority which the court hath by the common law, and so upon several commissions.
But if there be any form which the law appointeth to be observed, which cannot agree with the diversities of authorities, then this rule faileth.
And if three coparceners be, and one of them alien her purparty, the feoffee and one of the V'dei66. S*Ut sisters cannot join in a writ " de part' facienda," because it behoveth the feoffee to mention the statute in his writ.
Praesentia corporis tollit errorem nominis, et Veritas nominis tollit errorem demonstration's.
There be three degrees of certainty.
3. Demonstration or reference.
Whereof the presence the law holdeth of greatest dignity, the name in the second degree, and the demonstration or reference in the lowest, and always the error or falsity in the less worthy.
And therefore if I give a horse to I. D. being present, and say unto him, I. S. take this; this is a good gift, notwithstanding I call him by a wrong name: but so had it not been if I had delivered him to a stranger to the use of I. S. where I meant I. D.
So if I say unto I. S. Here I give you my ring with the ruby, and deliver it with my hand, and the ring bear a diamond and no ruby, this is a good gift notwithstanding I name it amiss.
So had it been if by word or writing, without the delivery of the thing itself, I had given the ring with the ruby, although I had no such, but only one with a diamond which I meant, yet it would have passed.
So if I by deed grant unto you, by general words, all the lands that the king hath passed unto me by letters patents dated 10 May, unto this present indenture annexed, and the patent annexed have date 10 July, yet if it be proved that that was the true patent annexed, the presence of the patent maketh the error of the date recited not material; yet if no patent had been annexed, and there had been also no other certainty given, but the reference of the patent, the date whereof was mis-recited, although I had no other patent ever of the king, yet nothing would have passed.
Like law is it, but more doubtful, where there is not a presence, but a kind of representation, which is less worthy than a presence, and yet more worthy than a name or reference.
As if I covenant with my ward, that I will tender unto him no other marriage, than the gentlewoman whose picture I delivered him, and that picture hath about it tptatis su/e anno 16, and the gentlewoman is seventeen years old; yet nevertheless if it can be proved that the picture was made for that gentlewoman, I may, notwithstanding this mistaking, tender her well enough.
So if I grant you for life a way over my land, according to a plot intended between us, and after I grant unto you and your heirs a way according to the first plot intended, whereof a table is annexed to these presents, and there be some special variance between the table and the original plot, yet this representation shall be certainly sufficient to lead unto the first plot; and you shall have the way in fee nevertheless, according to the first plot, and not according to the table.
So if I grant unto you by general words the land which the king hath granted me by his letters patents, "quarum tenor sequitur in ha?c verba," etc. and there be some mistaking in the recital and variance from the original patent, although it be in a point material, yet the representation of this whole patent shall be as the annexing of the true patent, and the grant shall not be void by this variance.
Now for the second part of this rule, touching the name and the reference, for the explaining thereof, it must be noted what things sound in demonstration or addition: as first in lands, the greatest certainty is, where the land hath a name proper, as " the manor of Dale, Grandfield," &-c. the next is equal to that, when the land is set forth by bounds and abuttals, as " a close of pasture bounding on the east part upon Emsden-wood, on the south upon," &c. It is also a sufficient name to lay the general boundary, that is, some place of larger precinct, if there be no other land to pass in the same precinct, as "all my lands in Dale, my tenement in St. Dunstan's parish," &c.
A farther sort of denomination is to name lands by the attendancy they have to other lands more notorious, as "parcel of my manor of D. belonging to such a college lying upon Thames bank."
All these things are notes found in denomination of lands, because they be signs local, and therefore of property to signify and name a place: but those notes that sound only in demonstration and addition, are such as are but transitory and accidental to the nature of the place.
As " modo in tenura et occupatione" of the proprietary, tenure or possession is but a thing transitory in respect of land; " Generatio venit, generatio migrat, terra autem manet in reternum."
So likewise matter of conveyance, title, or instrument.
As, "qua? perquisivide I. D. qua? descendebant a I. N. patre meo," or "in pradicta indenture dimissionis," or in pra?dictis Uteris patentibus specificat'."
So likewise, " continent' per restimationem 20 acres," or if per estimation em be left out, all is one, for it is understood, and this matter of measure although it seem local, yet it is indeed but opinion and observation of men.
The distinction being made, the rule is to be examined by it.
Therefore if I grant my close called Dale in the parish of Hurst, in the county of Southampton, and the parish likewise extendeth into the county of Berkshire, and the whole close of Dale lieth in the county of Berkshire; yet because the parcel is especially named, the falsity of the addition hurteth not. and yet this addition is found in name, but, as it was said, it was less worthy than a proper name.
So if I grant " tenementum meum," or " omnia tenementa mea," for the universal and indefinite to this purpose are all one, " in parochia Sancti Butolphi extra Aldgate," where the verity is extra Bishopsgate, in tenura Guilielmi, which is true, yet this grant is void, because that which sounds in denomination is false, which is the more worthy; and that which sounds in addition is true, which is the less;* and though in tenura Guilielmi, which is true, had been first placed, yet it had been all one.
But if I grant "tenementum raenm quod perquisivi de R. C. in Dale," where the truth was T. C. and I have no other tenements in D. but one, this grant is good,f because that which soundeth in name, namely, in Dale, is true, and that which soundeth in addition, namely, quod perquisivi, etc. is only false.
So if I grant " prata mea in Dale continentia 10 acras," and they contain indeed twenty acres, the whole twenty pass.
So if I grant all my lands, being parcels " manerii de D. in praedictis Uteris patentibus specificat'," there be no letters patents, yet the grant is good enough.
The like reason holds in demonstrations of persons, that have been declared in demonstration of lands and places, the proper name of every one is in certainty worthiest: next are such appellations as are fixed to his person, or at least of continuance, as, son of such a man, wife of such a husband; or addition of office, as clerk of such a court, &c. and the third are actions or accidents, which sound no way in appellation or name, but only in circumstance, which are less worthy, although they may have aproper particular reference to the intention of the grant.
And therefore if an obligation be made to /. 5. Jllio el h&redi G. S. where indeed he is a bastard, yet this obligation is good.
So if I grant land "Episcopo nunc Londinensi, qui me erudivit in pueritia," this is a good grant, although he never instructed me.
But e eonverso, if I grant land to " I. S. filio et hseredi G. S." and it be true that he is son and heir untoG. S. but his name is Thomas, this is a void grant.
Or if in the former grant it was the bishop of Canterbury who taught me in my childhood, yet shall it be good, as was said, to the bishop of London, and not to the bishop of Canterbury.
The same rule holdeth of denomination of times, which are such a day of the month, such a day of the week, such a Saint's day or eve, to-day, to-morrow; these are names of times.
But the day that I was born, the day that I was married; these are but circumstances and addition of times.
And therefore if I bind myself to do some personal attendance upon you upon Innocents'day, being the day of your birth, and you were not born that day, yet shall I attend.
• Semblance icy le grant ust este assets bon, come fuit resolu per cur1, Co. lib. 3, fol. 10. a. vid. 33 H. 8. Dy. 50. b. 1Q El. ib. '292. b. et Co. lib. 2. fo. 33. a.
f Vide ib. quae contraria est lex, car icy auxi le primer certainty est faux
There rest two questions of difficulty yet upon this rule; first, Of such things whereof men take not so much note as that they shall fail of this distinction of name and addition.
As, " my box of ivory lying in my study sealed up with my seal of arms; my suit of arras with the story of the nativity and passion:" of such things there can be no name, but all is of description, and of circumstance, and of these I hold the law to be, that precise truth of all recited circumstances is not required.
Rut in such things "ex multitudine signorum colligitur identitas vera," therefore though my box were not sealed, and although the arras had the story of the nativity, and not of the passion, if I had no other box, nor no other suit, the gifts are good; and there is certainty sufficient, for the law doth not expect a precise description of such things as have no certain denomination.
Secondly, Of such things as do admit the distinction of name and addition, but the notes fall out to be of equal dignity all of name or addition.
As, "prata mea juxta communem fossam in D." whereof the one is true, the other false; or " tenementum meum in tenura Guilielmi, quod perquisivi de R. C. in predict' indent' specificat'," whereof one is true, and two are false; or two are true, and one false.
So "ad curiam quam tenebat die Mercurii tertio die Martii," whereof the one is true, the other false.
In these cases the former rule, "ex multitudine signorum," etc. holdeth not; neither is the placing of the falsity or verity first or last material, but all must be true, or else the grant is void; vi(le ijvers always understood, that if you can re- Ji^"^*'pur concile all the words, and make no falsity that is quite out of this rule, which hath place only where there is a direct contrariety or falsity not to be reconciled to this rule.
As if I grant all my land in D. in tenura I. S. which I purchased of I. N. specified in a demise to I. D. and I have land in D. whereof in part of them all these circumstances are true, but I have other lands in D. wherein some of them fail, this grant will not pass all my land in D. for there these are references and no words of falsity or error, but of limitation and restraint.
Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verijicatione facti tollitur.
There be two sorts of ambiguities of words, the one is ambiguitas patens, and the other latens. Patens is that which appears to be ambiguous upon the deed or instrument: latens is that which seemeth certain and without ambiguity, for any thing that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity.
Ambiguitas patens is never holpen by averment, and the reason is, because the law will not couple and mingle matter of speciality, which is of the higher account, with matter of averment, which is of inferior account in law; for that were to make