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the heir of his inheritance. It hindered men that | unkind suits, setting all that kindred at jars, had entailed lands, that they could not make the best of their lands by fine and improvement, for that none upon so uncertain an estate, as for term of his own life, would give him a fine of any value, nor lay any great stock upon the land that might yield rent improved.
26 H. 8.
32 H. 8.
33 H. 8. 13 & 39 Eliz. Entails two privileges.
Not forfeit. 2. Not extend:
able for felony.
able for the debts of the party after his death. Proviso,
not to put away
If he do, to for.
tate, and that his next heir must enter.
some taking one part, some another, and the prin-
Quaere whether n men by ties from alienations, or to ha ing of houses by
it be better to
zard the undo.
The last and
in land is fee
A remainder cannot be li
By a statute made, 26 H. VIII. a tenant in tail doth forfeit his lands for treason; and by another act of Parliament, 32 H. VIII. he may make leases good against his heir for twenty-one years, or three lives; so that it be not of his chief houses, lands, or demesne, lease in reversion, nor less rent reserved than the tenants have paid most part of twenty-one years before, nor having any manner of discharge for doing wastes and spoils: by a statute made 33 H. VIII. tenants of entailed lands are liable to the king's debts by extent, and by a statute made 13 and 39 Eliz. they are saleable for the arrearages upon his account for his The last and greatest estate of lands office. So that now it resteth, that entailed lands is fee-simple, and beyond this there is have two privileges only, which be these. First, none of the former for lives, years, or not to be forfeited for felonies. Secondly, not to entails; but beyond them is fee-simple. be extended for debts after the parties' death, For it is the greatest, last, and utter- en fee except the entails be cut off by fine and recovery. most degree of estates in land; thereBut it is to be noted, that since these fore he that maketh a lease for life, or a gift in notable statutes, and remedies provided tail, may appoint a remainder when he maketh by statutes, do dock entails, there is another for life or in tail, or to a third in fee-simstart up a device called perpetuity, ple; but after a fee-simple he can limit no other which is an entail with an addition of a proviso estate. And if a man do not dispose of the feeconditional, tied to his estate, not to put away the simple by way of remainder, when he maketh the land from his next heir; and if he do, to forfeit gift in tail, or for lives, then the fee-simple resteth his own estate. Which perpetuities, if they in himself as a reversion. The differshould stand, would bring in all the former incon-ence between a reversion and a remain veniences subject to entails, that were cut off by der is this: The remainder is always the former mentioned statutes, and far greater: a succeeding estate, appointed upon the cay be grant for, by the perpetuity, if he that is in possession gifts of a precedent estate, at the time start away never so little, as in making a lease, or when the precedent is appointed. But the reverselling a little quillet, forgetting after two or three sion is an estate left in the giver, after a particudescents, as often they do, how they lar estate made by him for years, life, or entail; tion would bring are tied, the next heir must enter, where the remainder is made with the particular inconveniences who, peradventure, is his son, his bro- estates, then it must be done by deeds in writing, of estates tails, ther, uncle, or kinsman, and this raiseth with livery and seisin, and cannot be by words.
Of the new device called a perpetuity,
is an en
in all the former
The difference between a re. version
mainder and a
ed by word.
the grant of the reversion.
And if the giver will dispose of the must be had to reversion after it remaineth in himself, he is to do it by writing, and not by word, and the, tenant is to have notice of it, and to atturn it, which is to give his assent by word, or paying rent, or the like; and except the tenant will thus atturn, the party to whom the reversion is granted cannot have the reversion, neither can he compel him by any law to atturn, except the grant of the reversion be by fine; and then he may by writ provided for that purpose: and if he do not purchase that writ, yet by the fine the reversion shall pass; and the tenant shall pay no rent, except he will himself, nor be punished for any wastes in houses, woods, &c., unless it be granted by bargain and sale by indenture enrolled. These fee-simple estates lie open to all perils of forfeit ures, extents, encumbrances, and sales.
The tenant not
What a fine is
may be convey. ed hereby.
Five years non claim barreth
the cryers of the
warranted unto him, and pray that I. H.
against the te
Therefore the demandant who hath no defence made against it, must have the demandant judgment to have the land against him pant in tail. that he sued, (who is called the tenant,) and the tenant is to have judgment against I. H. to recover in value so much land of his, where, in truth, he hath none, nor never tenant to re will. And by this device, grounded land in value of upon the strict principles of law, the voucher. first tenant loseth the land, and hath nothing for it; but it is by his own agreement, for assurance to him that bought it.
cover so much
A recovery bartail, and all remaindments
reth an escheat
versions and re
This recovery barreth entails, and all remainders and reversions that should take place after the entails, saving where the king is giver of the entail, thereupon. and keepeth the reversion to himself, then neither the heir, nor the remainder, nor reversion is barred by the recovery.
The reason why the heirs, remainders The reason why and reversions are thus barred is be- a common reco very barreth cause in strict law the recompense ad- those in remain der and reverjudged against the cryer that was
A fine is a real agreement, beginning and how land thus, Hæc est finalis concordia, &c. This is done before the king's judges in the Court of Common Pleas, concerning lands that a man should have from another to him and his heirs, or to him for his life, or to him and the heirs males of his body, or for years certain, whereupon rent may be reserved, but no condition or cove-vouchee, is to go in succession of estate as the This fine is a record of great credit, and land should have done, and then it was not reaupon this fine are four proclamations made openly son to allow the heir the liberty to keep the land in the Common Pleas; that is, in every term one itself and also to have recompense; and, therefor four terms together: and if any man, fore, he loseth the land, and is to trust to the rehaving right to the same, make not his compense. claim within five years after the proclamations ended, he loseth his right, for ever, except he be an infant, a woman covert, a madman, or beyond the seas, and then his right is saved; so that he claim within five years after the death of her husband's full age, recovery of his wits, or return from beyond the This fine is called a feoffment ment of record. of record, because that it includeth all that the feoffment doth, and worketh further of his own nature, and barreth entails peremptorily, whether the heir doth claim within five years or not, if he claim by him that levied the fine.
This sleight was first invented when entails fell out to be so inconvenient as is before declared, so that men made no conscience to cut them off if they could find law for it. And now by use, those recoveries are become common assurances against entails, remainders, and reversions, and are the greatest security purchasers have for their moneys; for a fine will bar the heir in tail, and not the remainder, nor reversion, but a common recovery will bar them all. Upon feoffments and recoveries, the estate doth settle as the use and intent of the parties is declared by word or writing, before the act was done; As for example; they make a writing that one of them shall levy a fine, make a feoffment, or suffer a common recovery to the other, but the use and intent is, that one should have it tor his
Upon fines, feoff. ments, and reestate doth setthe intent of
tle according to the parties.
life, and after his decease, a stranger to have it in | allowing these provisions, which equity and tail, and then a third in fee-simple. In this case honesty is the use. And the use being created in the land settleth in an estate according to the use this sort, the statute of 27 H. VIII. beforemenand intent declared. And that by reason of the tioned, conveyeth the estate of the land, as the statute made 27 H. VIII. conveying the land in use is appointed. possession to him that hath interest in the use, or intent of the fine, feoffment, or recovery, according to the use and intent of the parties.
What a use is.
The use is but the equity and honesty to hold the land in conscientia boni viri. As for example; I and you agree that I shall give you money for your land, and you shall make me assurance of it. I pay you the money, but you made me no assurance of it. Here, although the estate of the land be still in you, yet the equity and honesty to have it is with me; and this equity is called the use, upon which I had no remedy but in Chancery, until this statute was made of 27 H. VIII. and now this there was no re- statute conjoineth and containeth the but in Chan, land to him that hath the use. I for cery. my money paid to you have the land itself, without any other conveyance from you, and it is called a bargain and sale.
Before 27 H. 8.
The stat. of 27
pass land upon
The stat. of 27
not into cities
But the parliament that made that H. S. doth not statute did foresee that it would be the payment of mischievous that men's lands should a deed indented so suddenly, upon the payment of a and enrolled. little money, be conveyed from them, peradventure in an alehouse or a tavern, upon strainable advantages, did therefore gravely provide another act in the same parliament, that the land, upon payment of this money, should not pass away, except there were a writing indented made between the said two parties, and H & extendeth the said writing also within six months and incorporate enrolled in some of the courts at Westthey did use to minster, or in the sessions rolls in the shire where the land lieth, unless it be in cities or corporate towns where they did use to enrol deeds, and there the statute extendeth not. The fifth conveyance of a fine is a to stand seined conveyance to stand seised to uses. It is in this sort; a man that hath a wife and children, brethren, and kinsfolk, may by Upon an agree writing under his hand and seal, agree to stand wise that for their or any of their preferment of his kind, he will stand seised of his lands to their uses, either for life in tail or fee, so as he shall see cause; upon which agreement in writing there ariseth an equity or honesty, that the land should go according to those agreements; nature and reason
to a use.
use may be cre-
A ovenant to
a use needeth
and seised to enrolment, and ale to use
as a bargain
the use of wife, child, or cousin, eth to marry.
or one he mean
And so this covenant to stand seised to uses is at this day, since the said statute, a conveyance of land, and with this difference from a bargain and sale; in that this needeth no enrolment as a bargain and sale doth, nor needeth it to be in writing indented, as bargain and sale must: and if the party to whose use he agreeth to stand seised of the land, be not wife, or child, cousin, or one that he meaneth to marry, then will no use rise, and so no conveyance; for although the law alloweth such weighty considerations of marriage and blood to raise uses, yet doth it not admit so trifling considerations as of acquaintance, schooling, services, or the like.
covery, a man
use to whom
But where a man maketh an estate of his land to others by fine, feoffment, or recovery, Upon a fine, fehe may then appoint the use to whom offent, or rehe listeth, without respect of marriage, may limit the kindred, or other things; for in that he listet, withcase his own will and declaration tion of blood, or guideth the equity of the estate. It is wise, in a barnot so when he maketh no estate, but or covenant. agreeth to stand seised, nor when he hath taken any thing, as in the cases of bargain, and sale, and covenant, to stand to uses.
The not giving of land by will was The not dis. thought to be a defect at common law; posing of lands that men in wars, or suddenly falling thought to be a sick, had not power to dispose of their common law. lands, except they could make a feoffment, or levy a fine, or suffer a recovery, which lack of time would not permit; and for men to do it by these means, when they could not undo it again, was hard: besides, even to the last hour of death, men's minds might alter upon further proofs of their children or kindred, or increase of children or debt, or defect of servants, or friends, to be altered.
and then they would, by their wills, declare how their friends should dispose of their lands; and if those friends would not perform it, the Court of Chancery was to compel them, by reason of the trust; and this trust was called the use of the land, so as the feoffees had the land, and the party himself had the use; which use was in equity, to take the profits for himself, and that the feoffees should make such an estate as he should appoint them; and if he appointed none, then the use should go to the heir, as the estate itself of the land should have done; for the use was to the estate like a shadow following the body.
By this course of putting lands into ences of putting use, there were many inconveniences | land into use. (as this use which grew first for a reasonable cause), viz. to give men power and liberty to dispose of their own, was turned to deceive many of their just and reasonable rights; as, namely, a man that had cause to sue for his land, knew not against whom to bring his action, nor who was owner of it. The wife was defrauded of her thirds; the husband of being tenant by courtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; the poor tenant of his lease, for these rights and duties were given by law from him that was owner of the land, and none other, which was now the feoffee of trust, and so the old owner, which we call the feoffor, should take the profits, and leave the power to dispose of the land at his discretion to the feoffee, and yet he was not such a tenant as to be seised of the land, so as his wife could have dower, or the lands be extended for his debts, or that he could forfeit it for felony or treason, or that his heir could be ward for it, or any duty of tenure fall to the lord by his death, or that he could make any leases of it.
The frauds of
use by degrees
statutes 1 H. 6.
H. R. 3.
In what manner
32 H. 8. giveth
If a man be
seised of capite
lands and soc
By this statute of 27 H. VIII. the power of disposing land by will is clearly taken away amongst those power to dia frauds; whereupon 32 H. VIII. another by will. statute was made, to give men power to give lands by will in this sort. First, it must be by will in writing. Secondly, he must be seised of an estate in fee-simple; for tenant for another man's life, or term in tail, cannot give land by will, by that statute, 32 H. VIII. he must be solely seised, and not jointly with another; and then being thus seised, for all the land he holdeth in soccage tenure, he may give it by will, except he hold any parts of the piece of land in capite, by knight's service of the king; and then, laying all his lacks together, he can give but two parts by will, for the third part of the whole, as well in soccage as in capite, must descend to the heir, to answer wardship, livery, and primer seisin to the crown. And so if he hold lands by knight's service of a subject, he can devise of the land but two parts, and the third the lord by wardship, and the heir by descent, is to hold.
cage, he cannot
devise but two
The third part must descend to swer guardship. enw the
the heir to an
A conveyance pite lands jointure, or to
good, or to pay debts in
And if a man that hath three acres of land holden in capite, by knight's betyds to the service, do make a jointure to his wife wife for her of one, and convey another to any of his heiro, ofer children, or to friends, to take the pro- void for a third fits and to pay his debts, or legacies, or part, by 32 H. 8. daughters' portions, then the third acre, or any part thereof, he cannot give by will, but must suffer it to descend to the heir, and that must satisfy wardship.
ance by act exe
But a convey. cuted in the lifetime of the uses is not void, burt; but if heir be within acres to be in
party of such lands to such
age, he shall have one of the
Yet a man, having three acres as before, may convey all to his wife or children, by conveyance, in his life time, as by feoffment, fine, recovery, bargain, and sale, or covenant to stand seised to uses, and to disinherit the heir. But if the heir be within age when his father dieth, the king or other ward. lord shall have that heir in ward, and shall have one of the three acres during the wardship, and to sue livery and seisin. But at full age the heir shall have no part of it, but it shall go according to the conveyance made by the father.
Which frauds, by degrees of time, as Conveyances to they increased, were remedied by diincreased, were vers statutes; as, namely, by a statute remedied by the of 1 H. VI. and 4 H. VIII. it was ap4.18 pointed that the action may be tried against him which taketh the profits, which was then cestuy que use by a statute made 1 R. III. Leases and estates made by cestuy que use are made good, and statutes by him acknowledged. 4 H. VII. the heir of cestuy que use is to be in ward. 16 H. VIII. the lord is to have relief It hath been debated how the thirds upon the death of any cestuy que use. shall be set forth. For it is the use that Which frauds nevertheless multiplying daily, all lands which the father leaveth to in the end 27 H. VIII. the Parliament, descend to the heir, being fee-simple, be left to purposing to take away all those uses, or in tail, must be part of the thirds; bend to the and if it be a full third, then the king, heir. nor heir, nor lord, can intermeddle with the rest; if it be not a full third, yet they must take it so much as it is, and have a supply out of the rest.
27 H. 8. taking away all uses reduceth the
The statutes give
himself, and if
forth so much as shall make up the thirds, except carry them to the market or fair, and sell them the officers of the court of wards can otherwise this sale doth bar me of the property of my goods, agree with the parties. If there be no wardship saving that if he be a horse he must be ridden two due to the king, then the other lord is to have this hours in the market or fair, between ten and five supply by a commission out of the chancery, and o'clock, and tolled for in the toll book, and the jury thereupon. seller must bring one to avouch his sale, known to the toll book keeper, or else the sale bindeth me not. And for any other goods, where the sale in a market or fair shall bar the owner, being not the seller of his property, it must be sale in a market or fair where usually things of that nature are sold. As for example: if a and what man steal a horse, and sell him in sale ought to be Smithfield, the true owner is barred by this sale; but if he sell the horse in Cheapside, Newgate, or Westminster Market, the true owner is not barred by this sale, because these markets are usual for flesh, fish, &c., and not for horses.
But in all those cases the statutes do the power to give power to him that maketh the will set out the third to set forth, and appoint of himself, it be not a third which lands shall go for thirds, and neither king nor lord can refuse it. And if it be not enough, yet they must out of the rent. take that in part, and only have a supply in manner as before is mentioned out of the
part, yet the king or lord must take that in part, and have a supply
Property in goods.
Of the several ways whereby a man may] get property in goods or chattels.
markets such a
felony, or outlawed for the same, or
medy. But if he make fresh pursuit he may
from the thief.
take his goods Or if he proseagainst the thief of the same fe have his goods
cuted the law
and convict him
lony, be shall
again by a writ of restitution.
Nevertheless, if fresh after the goods were stolen, the true owner maketh pursuit after the thief and goods, taketh the goods with the thief, he may take them again. And if he make no fresh pursuit, yet if he prosecute the felon so far as a justice requireth, that is, to have him arraigned, indicted, and found guilty (though he be not hanged, nor have judgment of death,) or have him outlawed upon the indictment; in all these cases he shall have his goods again, by a writ of restitution to the party in whose hands they are.
IV. By waving of goods.
By waving of goods a property is gotten thus. A thief having stolen goods being pursued, flieth away and leaveth the goods. This leaving is called waving, and the property is in the king; except the lord of the manor have a right to it by custom or charter.
But if the felon be indicted, adjudged, or found guilty, or outlawed at the suit of the owner of