« PreviousContinue »
of it is worth the noting, why the savings are inter- | in case that it be of another feofsment than that laced before the third case; the reason of it is, be- whereupon the statute hath wrought, but upon the cause the third case needeth no saving, and the first same feoffment; as if the feoffee before the statute two cases did need savings; and that is the reason had been disseised, and the disseised had made a of that again.
feoffment in fee to I. D. his use, and then the statute It is a general ground, that where an act of par came; this executeth the use of the second feoffliament is donor, if it be penned with an ac si, it is ment; but the first feoffees may make a regress, and not a saving, for it is a special gift, and not a gene- they yet claim to an use, but not by that feofsment ral gift, which includes all rights; and therefore in upon which the statute hath wrought. 11 Henry VII. where upon the alienation of women, the statute entitles the heir of him in remainder to Now followeth the third case of the statute, enter, you find never a stranger, because the statute touching execution of rents; wherein the material gives entry not simpliciter, but within an ac si; as words are four : if no alienation had been made, or if the feme had First, whereas diverse persons are seised, which been naturally dead. Strangers that had right hath bred a doubt that it should only go to rents in might have entered; and therefore no saving needs. use at the time of the statute ; but it is explained in So in the statute of 32 of leases, the statute enacts, the clause following, namely, as if a grant had been that the leases shall be good and effectual in law, made to them by such as are or shall be seised. as if the lessor had been seised of a good and per The second word is, profit; for in the putting of fect estate in fee-simple; and therefore you find no the case, the statute speaketh of a rent; but after in saving in the statute ; and so likewise of diverse the purview is added these words, or profit. other statutes, where the statute doth make a gift or The third word is ac si, scilicet, that they shall title good specially against certain persons, there have the rent as if a sufficient grant or lawful conneeds no saving, except it be to exempt some of veyance had been made and executed unto them. those persons, as in the statute of 1 R. III. Now The fourth words are the words of liberty and to apply this to the case of rents, which is penned remedies attending upon such rent, scilicet, that he with an ac si, namely, as if a sufficient grant or shall distrain, &c. and have such suits, entries, and lawful conveyance had been made, or executed by remedies, relying again with an ac si, as if the grant such as were seised; why if such a grant of a rent had been made with such collateral penalties and had been made, one that had an ancient right might | advantages. have entered and have avoided the charge ; and Now for the provisoes; the makers of this law did therefore no saving needeth : but the second first so abound with policy and discerning, as they did cases are not penned with ac si, but absolute, that not only foresee such mischiefs as were incident to cestuy que use shall be adjudged in estate and pos this new law immediately, but likewise such as were session, which is a judgment of parliament stronger consequent in a remote degree; and therefore bethan any fine, to bind all rights ; nay, it hath far- sides the express provisoes, they did add three new ther words, namely, in lawful estate and possession, provisoes which are in themselves subtractive laws: which maketh it stronger than any in the first for foreseeing that by the execution of uses, wills clause. For if the words only had stood upon the fornierly made should be overthrown, they made second clause, namely, that the estate of the feoffee an ordinance for wills. Foreseeing likewise, that should be in cestuy que use, then perhaps the gift by execution of uses women should be doubly adshould have been special, and so the saving super-vanced, they made an ordinance for dowers and fluous : and this note is material in regard of the jointures. Foreseeing again, that the execution of great question, whether the feoffees may make any uses would make frank-tenement pass by contracts regress; which opinion, I mean, that no regress is parole, they made an ordinance for enrolments of left unto them, is principally to be argued out of the bargains and sales. The two former they inserted saving; as shall be now declared: for the savings into this law, and the third they distinguished into are two in number : the first saveth all strangers' a law apart, but without any preamble as may aprights, with an exception of the feoffees; the second pear, being but a proviso to this statute. Besides is a saving out of the exception of the first saving, all these provisional laws; and besides four provisoes, namely, of the feoffees in case where they claim to whereof three attend upon the law of jointure, and their own proper use : it had been easy in the first one of persons born in Wales, which are not mate. saving out of the statute, other than such persons as rial to the purpose in hand; there are six provisoes are seised, or hereafter should be seised to any use, which are natural and true members and limbs of to have added to these words, executed by this the statute, whereof four concern the part of cestuy statute ; or in the second saving to have added unto que use, and two concern the part of the feoffees. the words, claiming to their proper use, these words, The four which concern the part of cestuy que use, or to the use of any other, and executed by this tend all to save him from prejudice by the execution statute : but the regress of the feoffee is shut out of the estate. between the two savings; for it is the right of a The first saveth him from the extinguishment of person claiming to an use, and not unto his own any statute or recognisance, as if a man had an exproper use; but it is to be added, that the first sav- tent of a hundred acres, and an use of the inheriting is not to be understood as the latter implieth, ance of one. Now the statute executing the possesthat feoffees to use shall be barred of their regress, / sion to that one, would have extinguished his extent
being entire in all the rest : or as if the conuzee of seised to an use, and what not; and what persons a statute having ten acres liable to the statute had may be cestuy que use, and what not. made a feoffment in fee to a stranger of two, and The king cannot be seised to an use; no, not after had made a feoffment in fee to the use of the where he taketh in his natural body, and to some conuzee and his heirs. And upon this proviso there purpose as a common person : and therefore if land arise three questions :
be given to the king and I. D. pour terme de leur First, whether this proviso were not superfluous, ries, this use is void for a moiety. in regard that cestuy que use was comprehended in Like law is, if the king be seised of land in the the general saving, though the feoffees be excluded right of his duchy of Lancaster, and covenanteth by
Secondly, whether this proviso doth save statutes his letters patents under the duchy seal to stand or executions, with an apportionment, or entire ? seised to the use of his son, nothing passeth.
Thirdly, because it is penned indefinitely in point Like law, if king R. III. who was feoffee to diof time, whether it shall go to uses limited after the verse uses before he took upon him the crown, had, statute, as well as to those that were in being all the after he was king, by his letters patents granted the time of the statute ; which doubt is rather enforced land over, the uses had not been renewed. by this reason, because there was for uses at the The queen, speaking not of an imperial queen but time of the statute; for that the execution of the by marriage, cannot be seised to an use, though she statute might be waved: but both possession and be a body enabled to grant and purchase without the use, since the statute, may be waved.
king; yet in regard of the government and interest The second proviso saveth cestuy que use from the the king hath in her possession, she cannot be seised charge of primer seisin, liveries, ouster les maines, to an use. and such other duties to the king, with an express A corporation cannot be seised to an use, because limitation of time, that he shall be discharged for their capacity is to an use certain : again, because the time past, and charged for the time to come to they cannot execute an estate without doing wrong the king, namely, May 1536, to be communis ter to their corporation or founder ; but chiefly because minus.
of the letter of this statute, which, in
clause when The third proviso doth the like for fines, reliefs, it speaketh of the feoffee, resteth only upon the word and herriots, discharging them for the time past, person, but when it speaketh of cestuy que use, it and speaking nothing of the time to come.
addeth person or body politic. The fourth proviso giveth to cestuy que use all If a bishop bargain or sell lands whereof he is collateral benefits or vouchers, aid-priers, actions of seised in the right of his see, this is good during waste, trespass, conditions broken, and which the his life; otherwise it is where a bishop is infeofied feoffees might have had : and this is expressly to him and successors, to the use of I. D. and his limited for estates executed before 1 May 1536. heirs, that is not good, no not for the bishop's life, And this proviso giveth occasion to intend that none but the use is merely void. of these benefits would have been carried to cestuy Contrary law of tenant in tail ; for if I give land que use, by the general words in the body of the in tail by deed since the statute to A, to the use of law, scilicit, that the feoffee's estate, right, title, and B and his heirs; B hath a fee-simple determinable possession, &c.
upon the death of A without issue. And like law, For the two provisoes on the part of the tertenant, though doubtful before the statute, was ; for the they both concern the saving of strangers from pre-chief reason which bred the doubt before the statute judice, &c.
was because tenant in tail could not execute an estate The first saves actions depending against the without wrong; but that since the statute is quite feoffees, that they shall not abate.
taken away, because the statute saveth no right of The second saves wardships, liveries, and ouster entail, as the statute of 1 R. III. did; and that reason les maines, whereof title was vested in regard of the likewise might have been answered before the staheir of the feoffee, and this in case of the king only. tute, in regard of the common recovery.
A feme covert and an infant, though under years What persons may be seised to a use, and what not.
of discretion, may be seised to an use; for as well What persons may be cestuy que use, and what not.
as land might descend unto them from a feoffee to What persons may declare an use, and what not.
use, so may they originally be infeoffed to an use ; Though I have opened the statute in order of yet if it be before the statute, and they had, upon a words, yet I will make my division in order of mat. subpæna brought, executed their estate during the ter, namely,
coverture or infancy, they might have defeated the 1. The raising of uses.
same ; and when they should have been seised again 2. The interruption of uses.
to the use, and not to their own use; but since the 3. The executing of uses.
statute no right is saved unto them. Again, the raising of uses doth easily divide it If a feme covert or an infant be infeoffed to an self into three parts : The persons that are actors use precedent since the statute, the infant or baron to the conveyance to use. The use itself. The come too late to discharge or root up the feoffment; form of the conveyance.
but if an infant be infeoffed to the use of himself Then it is first to be seen what persons may be and his heirs, and I. D. pay such a sum of money . The text here is manifestly corrupted, nor does any pro
to the use of I. G. and his heirs, the infant may disbable conjecture occur for its amendment.
agree and overthrow the contingent use.
Contrary law, if an infant be infeoffed to the use material whether the feoffment or the declaration le of himself for life, the remainder to the use of I. S. by deed; but I may infeoff I. S. to the use of a and his heirs, he may disagree to the feoffment as corporation, and this use may be averred. to his own estate, but not to divest the remainder, An use to a person uncertain is not void in the but it shall remain to the benefit of him in remainder. first limitation, but executeth not till the person be
And yet if an attainted person be infeoffed to an in esse ; so that this is positive, that an use shall use, the king's title, after office found, shall prevent never be in abeyance as a remainder may be, but the use, and relate above it; but until office the ces ever in a person certain upon the words of the statuy que use is seised of the land.
tute, and the estate of the feoffees shall be in him or Like law of an alien ; for if land be given to an them which have the use. The reason is, because alien to an use, the use is not void ab initio : yet no confidence can be reposed in a person unknown neither alien or attainted person can maintain an and uncertain ; and therefore if I make a feoffment action to defend the land.
to the use of I. S. for life, and then to the use of the The king's villain if he be infeoffed to an use, the right heirs of I. D. the remainder is not in abeyance, king's title shall relate above the use; otherwise in but the reversion is in the feoffor, quousque. So case of a common person.
that upon the matter all persons uncertain in use, But if the lord be infeoffed to the use of his vil are like conditions or limitations precedent. lain, the use neither riseth, but the lord is in by the Like law, if I infeoff one to the use of I. S. for common law, and not by the statute discharged of years, the remainder to the right heirs of I. D. this the use.
is not executed in abeyance, and therefore not void. But if the husband be infeoffed to the use of his Like law, if I make a feoffment to the use of my wife for years, if he die the wife shall have the term, wife that shall be, or to such persons as I shall and it shall not inure by way of discharge, although maintain, though I limit no particular estate at all ; the husband may dispose of the wife's term. yet the use is good, and shall in the interim return
So if the lord of whom the land is held be in to the feoffor. feoffed to the use of a person attainted, the lord shall Contrary law, if I once limit the whole fee-simple not hold by way of discharge of the use, because of of the use out of land, and part thereof to a person the king's title, annum, diem et rastum.
uncertain, it shall never return to the feoffor by way A person uncertain is not within the statute, nor of fraction of the use: but look how it should hase any estate in nubibus or suspense executed : as if I gone unto the feoffor; if I begin with a contingent give land to I. S. the remainder to the right heirs of use, so it shall go to the remainder; if I entail a I. D. to the use of I. N. and his heirs, I. N. is not contingent use, both estates are alike subject to the seised of the fee-simple of an estate pour vie of I. S. contingent use when it falleth ; as when I make a till I. D. be dead, and then in fce-simple.
feofsment in fee to the use of my wife for life, the Like law, if before the statute I give land to I. S. remainder to my first-begotten son; I having no son pour autre vie to an use, and I. S. dieth, living ces at that time, the remainder to my brother and his tuy que use, whereby the freehold is in suspense, heirs : if my wife die before I have any son, the use the statute cometh, and no occupant entereth : the shall not be in me, but in my brother. And yet if use is not executed out of the freehold in suspense I marry again, and have a son, it shall divest from for the occupant, the disseisor, the lord by escheat. my brother, and be in my son, which is the skipping The feoffee upon consideration, not having notice, they talk so much of. and all other persons which shall be seised to use, So if I limit an use jointly to two persons, not ir not in regard of their persons but of their title ; 1 esse, and the one cometh to be in esse, he shall take refer them to my division touching disturbance and the entire use ; and yet if the other afterward come interruption of uses.
in esse, he shall take jointly with the former; as It followeth now to see what person may be a if I make a feoffment to the use of my wife that cestuy que use. The king may be cestuy que use ; shall be, and my first-begotten son for their lives, but it behoveth both the declaration of the use, and and I marry ; my wife taketh the whole use, and if the conveyance itself, to be matter of record, because I afterwards have a son, he taketh jointly with the king's title is compounded of both; I say, not my wife. appearing of record, but by conveyance of record. But yet where words of abeyance work to an And therefore if I covenant with I. S. to levy a fine estate executed in course of possession, it shall do to him to the king's use, which I do accordingly; the like in uses; as if I infeoff A to the use of B and this deed of covenant be not enrolled, and the for life, the remainder to C for life, the remainder deed be found by office, the use vesteth not. E con to the right heirs of B, this is good remainder verso, if enrolled. If I covenant with I. S. to in- executed. feoff him to the king's use, and the deed be enrolled, So if I infeoff A to the use of his right heirs, A and the feoffment also be found by office, the use is in the fee-simple, not by the statute, but by the vesteth.
common law. But if I levy a fine, or suffer a recovery to the Now are we to examine a special point of the disking's use, and declare the use by deed of covenant ability of such persons as do take by the statute : and enrolled, though the king be not party, yet it is that upon the words of the statute, where divers good enough.
persons are seised to the use of other persons; so A corporation may take an use, and yet it is not that by the letter of the statute, no use is contained :
but where the feoffor is one, and cestuy que use is riage I will stand seised of land to the use of himanother.
self and his heirs; and before marriage I infeoff him Therefore it is to be seen in what cases the same to the use of himself and his heirs, and then he persons shall be both seised to the use and cestuy marrieth; he is in by the common law, and not by que use, and yet in by the statute; and in what cases the statute; like law of a bargain and sale. they shall be diverse persons, and yet in by the com But if I had lett to him for life only, then he mon law ; wherein I observe unto you three things: should have been in for life only by the common First, that the letter is full in the point. Secondly, law, and of the fee-simple by statute. Now let me that it is strongly urged by the clause of joint estates advise you of this, that it is not a matter of subtilty following. Thirdly, that the whole scope of the or conceit to take the law right, when a man cometh statute was to remit the common law, and never to in by the law in course of possession, and where he intermeddle where the common law executed an cometh in by the statute in course of possession : but estate ; therefore the statute ought to be expounded, it is material for the deciding of many causes and that where the party seised to the use, and the cestuy questions, as for warranties, actions, conditions, que use is one person, he never taketh by the statute, waivers, suspicions, and divers other provisoes. except there be a direct impossibility or impertinency For example; a man's farmer committed waste : for the use, to take effect by the common law. after he in reversion covenanteth to stand seised to
And if I give land to I. S. to the use of himself the use of his wife for life, and after to the use of and his heirs, and if I. D. pay a sum of money, | himself and his heirs ; his wife dies; if he be in his then to the use of I. D. and his heirs, I. S. is in of fee untouched, he shall punish the waste ; if he be an estate for life, or for years, by way of abridgement in by the statute, he shall not punish it. of estate in course of possession, and I. D. in of the So if I be infeoffed with warranty, and I covenant fee-simple by the statute.
with my son to stand seised to the use of myself for So if I bargain and sell my land after seven years, life, and after to him and his heirs ; if I be in by the inheritance of the use only passeth; and there the statute, it is clear my warranty is gone; but if remains an estate for years by a kind of subtraction | I be in by the common law, it is doubtful. of the inheritance or occupier of my estate, but So if I have an eigne right, and be infeoffed to merely at the common law.
the use of I. S. for life, then to the use of myself But if I infeoff I. S. to the use of himself in tail, for life, then to the use of I. D. in fee, I. S. dieth. and then to the use of I. D. in fee, or covenant to If I be in by the common law, I cannot waive my stand seised to the use of myself in tail, and to the estate, having agreed to the feofsment : but if I am use of my wife in fee; in both these cases the estate in by the statute, yet I am not remitted, because I tail is executed by this statute ; because an estate come in by my own act : but I may waive my use, tail cannot be re-occupied out of a fee-simple, being and bring an action presently; for my right is a new estate, and not like a particular estate for life saved unto me by one of the savings in the statute. or years, which are but portions of the absolute fee; Now on the other side it is to be seen, where there is and therefore if I bargain and sell my land to I. S. a seisin to the use of another person ; and yet it after my death without issue, it doth not leave an is out of the statute which is in special cases upon estate tail in me, nor vesteth any present fee in the the ground, wheresoever cestuy que use had remedy bargain, but is an use expectant.
for the possession by course of common law, there So if I infeoff I. S. to the use of I. D. for life, and the statute never worketh ; and therefore if a disthen to the use of himself and his heirs, he is in the seisin were committed to an use, it is in him by the fee-simple merely in course of possession, and as of common law upon agreement: so if one enter as oca reversion, and not of a remainder.
cupant to the use of another, it is in him till disContrary law, if I infeoff I. S. to the use of I. D. agreement. for life, then to the use of himself for life, the re So if a feme infeoff a man, causa matrimonii pramainder to the use of I. N. in fee: Now the law locuti, she hath a remedy for the land again by will not admit fraction of estates; but I. S. is in course of the law; and therefore in those special with the rest by the statute.
cases the statute worketh not; and yet the words of So if I infeoff I. S. to the use of himself and a the statute are general, where any person stands stranger, they shall be both in by the statute, be- seised by force of any fine, recovery, feoffment, barcause they could not take jointly, taking by several gain and sale, agreement or otherwise; but yet the titles.
feme is to be restrained for the reason aforesaid. Like law, if I infeoff a bishop and his heirs to the It remaineth to show what persons may limit and use of himself, and his successors, he is in by the declare an use : wherein we must distinguish ; for statute in the right of his see.
there are two kinds of declarations of uses, the one of And as I cannot raise a present use to one out of a present use upon the first conveyance, the other his own seisin ; so if I limit a contingent or futur upon a power of revocation or new eclaration ; the use to one being at the time of limitation not seised, latter of which I refer to the division of revocation: but after become seised at the time of the execution now for the former. of the contingent use, there is the same reason and The king upon his letters patent may declare an the same law, and upon the same difference which use, though the patent itself implieth an use, if none I have put before.
be declared. As if I covenant with my son, that after his mar If the king gives lands by his letters to I. S. and
his heirs, to the use of I. S. for life, the king hath | able ; if for money recited and not paid, it is void : the inheritance of the use by implication of the and yet in the case of a man of full age the recital patent, and no office needeth; for implication out of sufficeth. matter of record, amounteth ever to matter of record. If baron and feme be seised in the right of the
If the queen give land to I. S. and his heirs to feme, or by joint purchase during the coverture, and the use of all the church-wardens of the church of they join in a fine, the baron cannot declare the use Dale, the patentee is seised to his own use, upon for longer time than the coverture, and the feme that confidence or intent; but if a common person cannot declare alone ; but the use goeth, according had given land in that manner, the use had been to the limitation of law, unto the feme and her heirs; void by the statute of 23 H. VIII. and the use had but they may both join in declaration of the use in returned to the feoffor and his heirs. A corporation fee ; and if they sever, then it is good for so much may take an use without deed, as hath been said of the inheritance, as they concurred in; for the law before ; but can limit no use without deed.
avoucheth all one as if they joined: as if the baron An infant may limit an use upon a feoffment, fine, declare an use to I. S. and his heirs, and the feme or recovery, and he cannot countermand or avoid the another to I. D. for life, and then to I. S. and his use, except he avoid the conveyance ; contrary, if an heirs, the use is good to I. S. in fee. infant covenant in consideration of blood or marriage And if upon examination the feme will declare to stand seised to an use, the use is merely void. the use to the judge, and her husband agree not to
If an infant bargain and sell his land for money, it, it is void, and the baron's use is only good; the for commons or teaching, it is good with averment; rest of the use goeth according to the limitation of if for money, otherwise : if it be proved, it is avoid- | law.