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He that killeth
eth but his cha:tels.
Flying for feJouy a forfeit. ure of goods.
A man that being pursued for felony, and flieth for it, loseth his goods for his flying, although he return and is tried, and found not guilty of the fact.
Attainder in fe by verdict, co
lay or treason fession, or out all they bad
lan ry forfeiteth
from the time
1. That men attainted* of felony or treason, by verdict or confession, do forfeit all the lands they had at the time of their offence committed, and the king or the lord, whosoever of them of the offence hath the escheat or forfeiture, shall come in and avoid all leases, statutes, or conveyances done by the offender, at any time since the offence done. And so is the law clear also if a man be attainted for treason by outlawry; but upon attainder of felony by outlawry it hath been much doubted by the law books whether the lord's title by escheat shall relate back to the time of the offence done, or only to the date or
And so it is
rise i by verdict, con
in the attainder fession, and cut their relation
sto for thei and chattels,
ture of goods
So a man that killeth himself shall himself forfeit not lose his lands, but his goods, chat-test of the writ of exigent for proclamatels, leases, and debts. So of those tion, whereupon he is outlawed; how-t that kill others in their own defence, or by mis- beit at this day it is ruled, that it shall fortune. reach back to the time of his fact, but for goods, chattels, and debts, the king's title shall look no further back than to those goods, the party attainted by verdict or confession had at the time of the verdict and confession given or made, and in outlawries at the time of the exigent, as well in treasons as felonies: wherein it is to be observed, that upon the parties first apprehension, The king's cfthe king's officers are to seize all the cen goods and chattels, and preserve them together, dispending only so much out and chattels of them as is fit for the sustentation of the person in prison, without any wasting, or disposing them until conviction, and then the property of them is in the crown, and not before.
He that yieldeth
his body upon flony forfeiteth
the exigent for
So a man indicted of felony, if he yield not his body to the sheriff until after the exigent of proclamation is awarded against him, this man doth forfeit all his goods for his long stay, although he be found not guilty of the felony; but none is attainted to lose his lands, but only such as have judgments of death, by trial upon verdict, or their own confession, or that they be by judgment of the coroners outlawed as before.
Lands entailed escheat to the king for trea
Besides the escheats of lands to the lords of whom they be holden for lack of heirs, by attainder for felony (which only do hold place in fee-simple lands,) there are also forfeiture of lands to the crown by attainder of treason; as namely, if one that hath entailed lands commit treason, he forfeiteth the profits of the lands for his life to the crown, but not to the lord.
Stat. 26 H. 8.
seize his goods
It is also to be noted, that persons tainted may attainted of felony or treason have no purchase but it capacity in them to take, obtain, or king's use. purchase, save only to the use of the king, until the party be pardoned. Yet the party giveth not back his lands or goods without a special patent of restitution, which cannot restore the blood without an act of parliament. So if a man have a son, and then is attainted of felony or treason, and pardoned, and purchaseth lands, and then hath issue another son, and dieth, the son he had before he had his pardon, although he be his eldest son, and the patent have the words of restitution to his lands, shall not inherit, but his second son shall inherit them, and not the first; because the blood is corrupted by the attainder, and cannot be restored by patent alone, but by act of parliament. And if a man have two sons, and the eldest is attainted in the life of his father, and dieth without issue, the father living, the second son shall inherit the father's lands; but if the eldest son have any issue, though he die in the life of his father, then neither the second son, nor the issue of the eldest, shall inherit the father's lands, but the father
* Of the relation of attainders, as to the forfeiture of lands and goods with the diversity.
Property of lands by conveyance is first distributed into estates for years, for life, in tail, and feesimple.
lau by con
the means he of leases for
Lease for life
to be solid
by the sheriff
shall there be accounted to die without heir, and be a house, if not, then to some part of the land shall escheat, whether the eldest son the land, and there he expresseth, that have issue or not afterward or before, though he he doth grant unto the taker, called the be pardoned after the death of his father. lessee, for term of his life: and in seisin thereof, he delivereth to him a turf, twig, or ring of the door; and if the lease be by writing, then commonly there is a note written on the back side of the lease, with the names of those witnesses THESE estates are created by word, who were present at the time of the eye ided by writing, or by record. For estates seisin made. This estate is not saleint. Esales of years, which are commonly called able by the sheriff for debt, but the land leases for years, they are thus made; is to be extended for a yearly value, to where the owner of the land agreeth | satisfy the debt. It is not forfeitable with the other by word of mouth, that the other shall have, hold, and enjoy the land, to take the profits thereof for a time certain of years, months, weeks, or days, agreed between them, and this is called a lease parol; such a lease may they to the be made by writing pole, or indented not to the heirs. of devise, grant, and to farm let, and so also by fine of record; but whether any rent be reserved or no, it is not material. Unto these leases there may be annexed such ex
2. In tail. 3. For life. 4. For years.
Leases for years
Leases are to be
6. For flying.
or nue, or re-
tried by the
tion & Petty
6 Yangout, cutors and administrators, and be saleable for debts in the life of the owner, or in the executors' or administrators' hands by writs of execution upon statutes, recognisances, judgments of without license. debts or damages. They be also forfeitable to the crown by outlawry, by attainder for treason, felony, or premunire, killing himself, flying for felony, although not guilty of the fact, standing out or refusing to be tried by the country, by conviction of felony, by verdict without judgment, petty larceny, or going beyond the sea without license.
Exten's upon stat s'aple, merchant, ele .wardship of body and Jues are chattels, and forfitable in the same manner as leases for years are.
They are forfeitable to the crown, in like manner as leases for years, or interest gotten in other men's lands, by extending for debt upon judgment in any court of record, stat. merchant, stat. staple, recognisances; which being upon statutes are called tenants by stat. merchant, or staple, the other tenants by elegit, and by wardship of body and lands, for all these are called chattels real, and go to the executors and administrators, and not to the heirs, and are saleable and forfeitable as leases for years are.
for debt but ex
by outlawry, except in cases of felony, nor by any of the means before mentioned, of leases for years; saving in an attainder for, and felony, treason, premunire, and then only to the crown, not to the lords by escheat.
And though a nobleman or other have liberty, by charter, to have all felon's goods, yet a tenant holding for term of life, being attainted of felony, doth forfeit unto the king, and not to this nobleman.
A man that
hath bona felon. shall not have leaser for life
the means if
If a man have an estate in lands for another man's life, and dieth, this land cannot go to his heir, nor to his executors, but to the party that first entereth, and he is called an occupant as before hath been declared. A lease for years, or for life, may be made also by fine of record, or bargain and sale, or covenant, to stand seised be limited. upon good considerations of marriage, or blood, the reasons whereof are hereafter expressed.
Of estate tails, and how such an estate may
Entails of lands are created by a gift, with livery and seisin to a man, and to the heirs of his body; this word (body) making the entail may be demonstrated and restrained to the males or females, heirs of their two bodies, or of the body of either of them, or of the body of the grandfather or father.
By the stat. of West,
1. made estates in tail
that they were not
Entails of lands began by a statute made in Edward the First's time, by which also they are so much strengthened, as that the tenant in tail could not put away the land from the heir by any by fofitable act of conveyance or attainder, nor let der. it, nor encumber it, longer than his own life. But the inconvenience thereof was The great great, for, by that means, the land convenience being so sure tied upon the heir, as that thereof. his father could not put it from him, it made the son to be disobedient, negligent, and wasteful, often marrying without the father's consent, and to grow insolent in vice, knowing that there could be no check of disinheriting him. It also made the owners of the land less fearful to commit murders, felonies, treasons, and manslaughters; for that they knew none of these acts could hurt Endorsement of livery upon the back of the deed and wit ness of it.
the heir of his inheritance. It hindered men that | unkind suits, setting all that kinared at jars, had entailed lands, that they could not make the some taking one part, some another, and the prinbest of their lands by fine and improvement, for cipal parties wasting their time and money in that none upon so uncertain an estate, as for term suits of law. So that in the end they of his own life, would give him a fine of any are both constrained by necessity to i Lees of those value, nor lay any great stock upon the land that join both in a sale of the land, or a might yield rent improved. great part of it, to pay their debts, occasioned through their suits. And if the chiefest of the family, for any good purpose of well seating him. self, by selling that which lieth far off is to buy that which is near, or for the advancement of his
The prejudice the crown received thereby.
Lastly, those entails did defraud the and many subjects of their debts; for that the land was not liable longer than his own lifetime, which caused that the king could not safely commit any office of account | daughters or younger sons should have reasonable to such, whose lands were entailed, nor other men trust them with loan of money.
The stat. 4 H.7.
bar estates tail
These inconveniences were all remedied by acts of Parliament; as namely, by acts and 32 H. S to of Parliament later than the acts of entails, made 4 H. VII. 32 H. VIII. A tenant in tail may disinherit his son by a fine with proclamation, and may, by that means also, make it subject to his debts and sales.
26 H. 8.
32 17. S.
33 H. 8.
Not forfeit. 2. Not extend
able for felony.
able for the debt of the party after his death. Provo,
not to put away
If he do, to for
feit his own es fate, and that his next heir must enter.
cause to sell, this perpetuity, if it should hold good, restraineth him. And more than that, where many are owners of inheritance of land, not entailed may, during the minority of his eldest son, appoint the profits to go to the advancement of the younger sons and daughters, and pay debts; by entails and perpetuities the owners of these lands cannot do it, but they must suffer the whole to descend to his eldest son, and so to come to the crown by wardship all the time of his infancy.
restrain men by
sets aliens, or to ba ing of housesty
ties from alien
zard the undo
un brifty poste rity.
Wherefore, seeing the dangerous times and untowardly heirs, they might prevent those mischiefs of undoing their houses by conveying the land from such heirs, if they were not tied to the stake by those perpetuities, and restrained from forfeiting to the crown, and disposing it to their own or to their children's good: therefore it is worthy of consideration, whether it be better for the subject and sovereign to have the lands secured to men's names and bloods by perpetuities, with all the inconveniences abovementioned, or to be in hazard of undoing his house by unthrifty posterity.
The last and
free ren inder
in land is simple.
mited upon an
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, or any 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 fec-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 uttere in 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 tail with an ad 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 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 particu descents, as often they do, how they lar estate made by him for years, life, or entail; es would bring are tied, the next heir must enter, where the remainder is made with the particular econveniences who, peradventure, is his son, his bro- estates, then it must be done by deeds in writing, ther, uncle, or kinsman, and this raiseth with livery and seisin, and cannot be by words.
Of the new de vice called a
perpetuity, which is an en
n all the former
of estates tails.
Atturnment must be had to the grant of the reversion.
And if the giver will dispose of the 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 forfeitures, extents, encumbrances, and sales.
The tenant not compellable to atturn but where be reversion is granted by fine.
What a fine is,
may be convey.
Five years non elain barreth
A fine is a real agreement, beginning as how lands thus, Hæc est finalis concordia, &c. This ed hereby. 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 coveThis fine is a record of great credit, and upon this fine are four proclamations made openly in the Common Pleas; that is, in every term one for four terms together: and if any man, having right to the same, make not his 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 feoffinent 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.
1. An infant.
2. Feme covert. 3. Malmon. 4. Beyond sea.
Fine is a feoff.
What recoverics are.
Recoveries are where, for assurances of lands, the parties do agree, that one shall begin an action real against the other, as though he had good right to the land, and the other shall not enter into defence against it, but allege that he bought the land of I. H. who had
the cryers of the
warranted unto him, and pray that I. H. may be called in to defend the title which I. H. is one of the cryers of the Common Pleas, and Common is called the common voucher. This voucher of one I. H. shall appear and make as if he court. would defend it, but shall pray a day to be assigned him in his matter of defence, which being granted him, at the day he maketh default, and thereupon the court is to give judgment against him, which cannot be for him to lose his lands, because he hath it not, but the party that he hath sold it to, hath that who vouched him to warrant it.
the denialant nant in tail.
against the te
Therefore the demandant who hath no defence made against it, must have judgment to have the land against him 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, Judzment for where, in truth, he hath none, nor never tenant to re will. And by this device, grounded and 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 bar.
fail, and all renaindments
This recovery barreth entails, and all remainders and reversions that should reh an ex heat take place after the entails, saving versions and rewhere 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.
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 for his
life, and after his decease, a stranger to have it in tail, and then a third in fee-simple. In this case the land settleth in an estate according to the use and intent declared. And that by reason of the statute made 27 H. VIII. conveying the land in possession to him that hath interest in the use, or intent of the fine, feoffinent, or recovery, according to the use and intent of the parties. Upon this statute is likewise grounded the fourth and fifth of the six conveyances, viz. bargains, sales, covenants, to stand seised to uses; for this statute, wheresoever it findeth a use, conjoineth the possession to it, and turneth it into like quality of estate, condition, rent, and the like as the use hath.
Bargains, sales, and covenants to stand seised to a use, are all grounded upon one statute.
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 medy frause, land to him that hath the use. I for 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 H. 8. doth not pass land upon
the payment of
a deed indented
But the parliament that made that statute did foresee that it would be mischievous that men's lands should so suddenly, upon the payment of a 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 Hextendeth 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 conveyance to stand seised to uses. It is in this sort; a man that hath a wife children, brethren, and kinsfolk, may by
The stat. of 27
not into cities
A conveyance to stand seised to a use.
allowing these provisions, which equity and honesty is the use. And the use being created ir this sort, the statute of 27 H. VIII. beforemen. tioned, conveyeth the estate of the land, as the use is appointed.
A ovenant to
a ust needeth no enrolinent, as a forgain
doth, so it be to the use of wife chilt, or cousin, one be mean
And so this covenant to stand seised to uses is at this day, since the said sta- stand scisod to tute, a conveyance of land, and with this difference from a bargain and sale; and to use in that this needeth no enrolment as a bargain and sale doth, nor needeth it to or 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. But where a man maketh an estate of his land to others by fine, feoffment, or recovery, he may then appoint the use to whom he listeth, without respect of marriage, kindred, or other things; for in that case his own will and declaration guideth the equity of the estate. It is in 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.
Upon a fine, feet, or remay limit the be steth, with tion of blood or
covery, a nan
use to whom
money. Other gain and sale,
Of the contin
The not dis posing of lands thought to be a common law.
by will was defect at the
The last of the six conveyances is a will in writing, which course of con- ance of land by veyance was first ordained by statute made 32 H. VIII. before which statute no man might give land by will, except it were in a borough town, where there was an especial custom that men might give their lands by will; as in London, and many other places. The not giving of land by will was thought to be a defect at common law; that men in wars, or suddenly falling sick, had not power to dispose of their 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.
For which cause it was reason that the law should permit him to reserve to the last instant the disposing of his lands, and to give him means to dispose it, which seeing it did not fitly serve, men used this device.
The court that was invented before the sta".
off to which lands to fentrees
will, was a conveyance of
in trust, to such persons as they
in their will
They conveyed their full estates of their lands, in their good health, to friends in trust, properly called feoffees in trust,