praying his clergy, and thereupon reading as a | clerk, and so burnt in the hand and discharged, is not attainted, because he, by his clergy, preventeth the judgment of death, and is called a clerk convict who loseth not his lands, but all his goods, chattels, leases and debts. He that standeth mute forfeiteth no lands, So a man indicted, that will not answer, nor put himself upon trial, alexcept for trea though he be by this to have judgment of pressing to death, yet he doth forfeit no lands, but goods, chattels, leases, and debts, except his offence be treason, and then he forfeiteth his lands to the crown. He that killeth eth but his chattels. Attainder in feby verdict, con. lony or treason fession, or outall they had lawry, forfeiteth from the time committed. der of outlawry, 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 So a man that killeth himself shall time of the offence done, or only to the date or 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; howthat 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, 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 offthe king's officers are to seize all the ce upon the goods and chattels, and preserve them and 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. Flying for fe lony a forfeiture 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. He that yieldeth his body upon felony forfeiteth the exigent for his goods. 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 treason. 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. but And so it is upon an attainotherwise it is by verdict, conawry, as to for the forfei and chattels in the attainder fession, and out their relation ture of goods It is also to be noted, that persons attainted of felony or treason have no capacity in them to take, obtain, or 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. shall there be accounted to die without heir, and the land shall escheat, whether the eldest son have issue or not afterward or before, though he be pardoned after the death of his father. Property of lands by conveyance is first distributed into estates for years, for life, in tail, and feesimple. Property of in fees. 2. In tail. 3. For life. 4. For years. * the means be of leases for fore mentioned years. Lease for life not be sold for debt but ex by te sheriff tended yearly. be a house, if not, then to some part of the land, and there he expresseth, that he doth grant unto the taker, called the 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 livery of levance divided by writing, or by record. For estates seisin made. This estate is not saleby into, 1. Estates 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 by outlawry, except in cases of felony, nor by shall have, hold, and enjoy the land, to take the any of the means before mentioned, of leases for profits thereof for a time certain of years, months, years; saving in an attainder for, and felony, weeks, or days, agreed between them, and this is treason, premunire, and then only to the crown, called a lease parol; such a lease may not to the lords by escheat. they go 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 are to be leases there may be annexed such exforfeited by at ceptions, conditions, and covenants, as the parties can agree on. They are Leases for years executors and tainder. 1. In treason. 2. Felony. 3. Fremunire. called chattels real, and are not inhe 4. By killing himself. 5. For flying. 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 bath bona felon. shall not have leaser for life by charter, the means if be attainted. Occupant. If a man have an estate in lands for another man's life, and dieth, this land cannot ritable by the heirs, but go to the exe-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. & Standing out, cutors and administrators, and be saleable for debts in the life of the owner, or in the executors' or administrators' They are forfeitable to the crown, in like manner as leases for years, or interest gotten in other men's lands, lands are chat 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. Of estate tails, an estate may A lease for years, or for life, may be made also by fine of record, or bargain and how such and sale, or covenant, to stand seised be limited. upon good considerations of marriage, or blood, the reasons whereof are hereafter expressed. 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. But the inconvenience thereof was The great ingreat, 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 Ison 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 witness of it. 26 H. 8. 32 H. 8. Not forfeit able for felony. able for the debts of the party after his death. Provo, not to put away the land If he do, to for felt his own tate, and that his next beir must enter. The inconve perpetuities. unkind suits, setting all that kindred at jars, Quare whether it be better to restrain men by the puíations, or to ba ing of houses by ties from alien zard the undo. unthrifty posto in land is feesimple. 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, 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 The last and 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. mited upon an be extended for debts after the parties' death, For it is the greatest, last, and utter-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 vice called a notable statutes, and remedies provided tail, may appoint a remainder when he maketh tail with an aby 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 differ. The difference should stand, would bring in all the former incon-ence between a reversion and a remain-between a re veniences subject to entails, that were cut off by der is this: The remainder is always version the former mentioned statutes, and far greater; a succeeding estate, appointed upon the ed by word. 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; ties 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 de perpetuity, dition. is These perpetui. in all the former simple. and a reversion. cannot be grant Atturniment reversion. to The tenant not compellable to atturn but And if the giver will dispose of the must be had 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 where the refine; and then he may by writ proed by fine. vided 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. version is grant conveyed six manner of WAYL 1. By feoffment. 2. By fine. Lands are conveyed by these six means: first, Land: may be by feoffment,* which is, where by deed lands are given to one and his heirs, and livery and seisin made according to the form and effect of the deed; if a lesser estate than fee-simple be given, and livery of seisin made, it is not called a feoffment, except the fee-simple be conveyed, but is otherwise called a lease for life or gift entail as abovementioned. 3. By recovery. 4. By use. 5. By covenant. 6. By will. What a fine is, Five years DON 1. An infant. 2. Feme covert. 3. Madman. 4. Beyond sea. A fine is a real agreement, beginning and how lands thus, Hæc est finalis concordia, &c. This may be conveyed 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 covenants. This 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, claim barreth 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 seas. 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. 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 Fine is a feoff. What recoveries are. 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. Judgment for the demandant pant 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, Judgment for 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 The reason why the heirs, remainders The reason why and reversions are thus barred is be- a common reco cause in strict law the recompense ad- the remain judged against the cryer that was vouchee, is to go in succession of estate as the land should have done, and then it was not reason to allow the heir the liberty to keep the land itself and also to have recompense; and, therefore, he loseth the land, and is to trust to the recompense. 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 Upon fines, feoffestate doth settle as the use and intent ments, and reof 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 coveries, the estate doth setthe intent of tle according to 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 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. medy for a use, but in Chancery. The stat. of 27 H. S. doth not pass land upon moLey without a deed indented and enrolled. The stat. of 27 not into cities towns where But the parliament that made that statute did foresee that it would be the payment of 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 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 conveyance to stand seised to uses. 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 that for their or any of their preferment he will stand seised of his lands to their uses, either for life in tail or fee, so as enrol deeds. A conveyance to stand seised to a use. stand seised to the use of any of his kindred, a use may be created, and the estate of the land thereupon executed, by 27 H. 8. It 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 allowing these provisions, which equity and honesty is the use. And the use being created in this sort, the statute of 27 H. VIII. beforementioned, conveyeth the estate of the land, as the use is appointed. 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; A ovenant to stand seisad to no enrolment, doth, so it be to a use needeth as a bargain sale to a use the use of wife, child, or cousin, or one he mean eth to marry. 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 out considera 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 offment, or rehe listeth, without respect of marriage, may limit the kindred, or other things; for in that he listeth, 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 lar that men in wars, or suddenly falling at the 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. 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. |