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Of

the lands to the lord. an attainder

by outlawry.

The outlawry groweth in this sort; a man is indicted for felony, being not in hold, so as he cannot be brought in person to appear and to be tried, insomuch that process of capias is therefore awarded to the sheriff, who not finding him, returneth, "non est inventus in balliva mea ;" and thereupon another capias is awarded to the sheriff; who likewise not finding him maketh the same return: then a writ called an exigent is directed to the sheriff, commanding him to proclaim him in his county court five several court days, to yield his body; which if the sheriff do, and the party yield not his body, he is said, by the default, to be outlawed, the coroners there adjudging him outlawed, and the sheriff making the return of the proclamations, and of the judgment of the coroners upon the backside of the writ. This is an attainder of felony, whereupon the offender doth forfeit his lands by an escheat to the lord of whom they are holden.

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Flying for felony, a forfeiture of goods.

He that yield

upon the exigent for felony forfeiteth his goods.

A man that being pursued for felony, and flieth for it, loses his goods for his flying, although he return and is tried, and found not guilty of the fact.

So a man indicted for felony, if he eth his body 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 not found 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 entail

Besides the escheats of lands to the ed escheat to lords of whom they be holden, for lack of heirs, and by attainder for felony,

the king for treason.

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But a copy hold, for fee-simple, or for life, is forfeited to the lord, and not to the crown; and if it be entailed, the lord is to have it during the life of the offender only, and then his heir is to have it. The custom of Kent is, that Gavelkind land is not forfeitable nor escheatable for felony for they have an old saying; The father to the bough, and the son to the plough.

If the husband was attainted, the wife was to lose her thirds in cases of felony and treason, but yet she is no offender; but at this day it is holden by statute law, that she loseth them not for the husband's felony. The relation of these forfeits are these:

The wife los

eth no dower, ing the bus band be atfelony.

notwithstand

tainted of

Attainder in felony or treason by ver

dict, contes sion, or out

lawry, forteteth all they had from the time of the mitted. And so it is upon an at

offence com

tainder of cut

lawry; otherwise it is in by verdict,

the attainder

confession, and outlawry,

as to their reforfeiture of goods and

lation for the

chattels

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 hath the escheat or forfeiture, shall come in and avoid all leases, statutes, or conveyances done by the of fender, 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 of teste of the writ of exigent for proclamation, whereupon he is outlawed: howbeit at this day it is ruled, that it shall reach back to the time of the fact; but for goods, chattels, and debts, the king's title shall look no farther 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 party's first apprehension, the king's officers are to seize all the goods and chattels, and preserve them together, dispending only so much out of them, as is fit for the sustentation of the person in prison, without any wasting, or disposing of them until conviction; and then the property of them is in the crown, and not before. It is also to be noted, that persons A person atattainted for felony or treason have no tainted may capacity in them to take, obtain, or it shall be to purchase, but purchase, save only to the use of the the king's use. king, until the party be pardoned. Yet the party

ficers to seize a felon's goods

The king's of

and chattels

There can be

no restitution

in blood without act of parliament; but a pardon enableth a man to purchase, and the heir begotten after shall inherit those lands.

getteth 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 shall there be accounted to die without heir; and the land shall escheat, whether the eldest son have issue or not, afterwards or before, though he be pardoned after the death of his father.

Property of
land by con-
veyance di-
vided into,
1. Estates in
fee. 2. In tail.
3. For life.

IV. Property of lands by conveyance is first distributed into estates for years, for life, in tail, and fee-simple.

elegit. Ward. ship of body and lands are

chattels and forfeitable.

ment in any court of record, statute
merchant, statute staple, recognisances;
which being upon statutes, are called
tenants by statute 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 forfeit-
able as leases for years are.

able.

2. Leases for lives are also called Lease for life freeholds: they may also be made by how forfeitword or writing. There must be livery and seisin given at the making of the lease by him, whom we call the lessor; who cometh to the door, backside, or garden, if it 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 backside Indorsement of the lease, with the names of those witnesses who were present at the time of the livery of seisin made. This estate is not saleable by the sheriff for debt, but the Lease for life land is to be extended for a yearly value, to satisfy the debt. It is not forfeitable by outlawry, except in cases of felony, nor by any of the means

of livery, &c.

by the sheriff for debt, but extended at a

not to be sold

yearly value.

A man that

These estates are created by word, before mentioned, of leases for years; saving in an
by writing, or by record.
attainder for felony, treason, premunire, and then
only to the crown, and not to the lords by escheat.
And though a nobleman or other
have liberty by charter, to have all
felons' goods; yet a tenant holding for
term of life, being attainted of felony,
doth forfeit unto the king, and not to
this nobleman.

4. For years.
1. For estates of years, which are commonly
called leases for years, they are thus made: where
the owner of the land agreeth 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 parole;
such a lease may be made by writing poll, or
indented of demise, 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 for years, they go to the executors, and not to the heirs.

leases there may be annexed such exceptions, conditions, and covenants, as the parties can agree on. They are called chattels real, and are not inheritable by the heirs, but go to the executors 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 debts or damages. They be also forfeitable to the crown be forfeited by by outlawry, by attainder for treason, attainder. 1. In treason. felony, or premunire, killing himself, 2. Felony. flying for felony, although not guilty of 4. By killing the fact, standing out, or refusing to be himself. 5. For tried by the county, by conviction of felony, by verdict without judgment, petty larceny, or going beyond the sea without licence.

Leases are to

3. Premunire.

flying. 6.
Standing out,
&c. 7. By
conviction.
8. Petty larce-
ny. 9. Going
beyond the
sea without
licence. Ex-
tents upon
stat staple,
merchant, or

These are forfeitable to the crown, in like manner as leases for years; namely, interest gotten in other men's lands by extending for debt upon judg

hath bona felon. by charter, shall not have the lease for life

estate, if

be attainted.

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. occupant; as before hath been declared.

Of estate tails,

and how such be limited.

an estate may

A lease for years or for life may be made also by fine of record, or bargain and sale, or covenant, to stand seised upon good considerations of marriage, or blood; the reasons whereof are hereafter expressed. 3. 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. Entails of lands began by a statute made in Ed. I.'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 act of conveyance or attainder; nor let it, nor encumber it, longer than his own life.

But the inconvenience thereof was great, for by that means the land being so sure tied upon the heir as that his

By the stat. of

West. 1. made in Ed. I's in tail were so strengthened, that they were not forfeitable by any attainder.

time, estates

The great inconvenience that ensued thereof.

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 the heir of his inheritance. It hindered men that 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.

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The stat. 4 H.

VII. and 32 H. VIII. to bar

estates tail by

fine.

26 H. VIII. 32 H. VIII.

These inconveniencies were all remedied by acts of parliament; as namely, by acts of parliament later than the act 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. 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 one and twenty 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 one and twenty years before, nor have any manner of discharge for doing wastes and spoils: by a statute made 33 H. VIII. tenants of entailed 33 H. VIII. 13 et 39 Eliz. lands are liable to the king's debts by Entails two extent; and by statutes made 13 and privileges; 1. Not forfeitable 39 Eliz. they are saleable for the arfor felony. 2. Not extend- rearages upon his account for his office; so that now it resteth, that entailed party after his lands have two privileges only, which death provi- be these: First, not to be forfeited for clude his next felonies. Secondly, not to be extended be forfeit his, for debts after the party's death, except estate, and the the entails be cut off by fine and re

able for the debts of the

so, not to ex

to

next heir must

enter.

Of a perpetuity, which is an entail with

an addition. These perpe

estates tail.

covery.

But it is to be noted, that since these notable statutes, and remedies provided by statutes, to dock entails, there tuities would is started up a devise called perpetuity, bring in all the which is an entail with an addition of former inconveniencies of a proviso conditional, tied to his estate, not to put away the land from his next heir; and if he do, to forfeit his own estate. Which perpetuities, if they should stand, would bring in all the former inconveniencies subject to entails, that were cut off by the former mentioned statutes, and far greater: for by the perpetuity, if he that is in possession start away never so little, as in making

a lease, or selling a little quillet, forgetting after two or three descents, as often they do, how they are tied; the next heir must enter, who peradventure is his son, his brother, uncle, or kinsman; and this raiseth unkind suits, setting all the The inconkindred at jars, some taking one part, veniencies of some another, and the principal parties those perpe tuities. wasting their time and money in suits of law; so that in the end they are both constrained by necessity to join in a sale of the land, or a great part of it, to pay their debts, occasioned through their suits. And if the chief of the family, for any good purpose of well seating himself, by selling that which lieth far off, to buy that which is near, or for the advancement of his daughters, or younger sons, should have reasonable cause to sell, this perpe tuity, if it should hold good, restraineth him. And more than that, where many are owners of inherit ance 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; but by entails and perpetuities, the owners of these lands cannot do it, but they must suffer the whole to descend to the eldest son, and so to come to the crown by wardship all the time of his infancy.

Query.

strain men by these perpealienations, or to hazard the houses by un

tuities from

undoing of

terity.

The last and

simple.

Wherefore, seeing the dangerous times and untowardly heirs, they might whether it be prevent those mischiefs of undoing their better to rehouses, 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 thrifty postheir 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 inconveniencies above mentioned, or to be in hazard of undoing his house by unthrifty posterity. 4. The last and greatest estate of lands is fee-simple, and beyond this greatest estate there is none of the former for lives, in land is feeyears, or entails; but beyond them is fee-simple. For it is the greatest, last, and uttermost degree of estates in land; therefore he that maketh a lease for life, or a gift in tail, may appoint a remainder when he maketh another A remainder for life or in tail, or to a third in fee- cannot be simple; but after a fee-simple he can an estate in limit no other estate. fee-simple. And if a man do not dispose of the fee-simple by way of remainder, when he maketh the gift in tail, or for lives, then the fee-simple resteth in himself as a reversion. The difference between a reversion and a remainder is this. The remainder is always a succeeding estate, appointed between a reupon the gifts of a precedent estate at mainder and a the time when the precedent is appointed. But the reversion is an estate left in the giver, after a particular estate made by him for years, life, or entail. Where the re- A reversion mainder is made with the particular cannot be granted by estates, then it must be done by deeds word.

limited upon

The difference

reversion.

must be had to

the grant of
the reversion.

The tenant not
compellable to
atturn, but
where the re-
version is
granted by
fine.

in writing, with livery and seisin, and cannot be
by words; and if the giver will dispose of the
reversion after it remaineth in himself, he is to
do it in writing, and not by word, and the tenant
is to have notice of it, and to atturn to
Atturnment
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 com-
pel 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 waste 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.

Lands may be
conveyed, 1.
By feoffment.
2. By fine. 3.
By recovery.
4. By use. 5.
By covenant.
6. By will.

Common

vouchee one

of the criers

of the court.

warranted unto him, and pray that I. H. may be called in to defend the title, which I. H. is one of the criers of the common-pleas, and is called the common vouchee. This I. H. shall appear and make as if he 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. Therefore the demandant who hath Judgment for no defence made against it, must have the demandant against judgment to have the land against him the tenant in that he sued, who is called the tenant, and the tenant is to have judgment Judgment for against I. H. to recover in value so much tenant to reland of his, where in truth he hath none, nor never will. And by this deLands are conveyed by these six vice, grounded upon the strict principles

means:

1. 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 in tail, as above mentioned.

etc.

What a fine
2. A fine is a real agreement, begin-
is, and how
ning thus," Hæc est finalis concordia,"
lands may be
conveyed
This is done before the king's
hereby.
judges in the court of common pleas,
concerning lands that a man should have from an-
other 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 proclama-
tions 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 procla-
mations ended, he loseth his right for
ever, except he be an infant, a woman
vert. 3. Mad- Covert, a madman, or beyond the seas,
and then his right is saved; so that
yond sea. the claim be within five years after full
age, the death of her husband, recovery of his wits,
or return from beyond the seas. This fine is called
a feoffment of record, because that it
ment of re- includeth all the feoffment doth, and
worketh farther of its own nature, and
barreth entails peremptorily, whether the heir doth
claim within five years or not, if he claimed by him

Five years non-claim barreth not, 1. An infant. 2. Feme co

man. 4. Be

Fine is a feoff

cord.

that levied the fine.

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tail.

cover SO

much land in

value of the

common vou

chee.

of law, the first tenant loseth the land, and hath nothing for it; but it is by his own agreement for assurance to him that brought it.

A recovery barreth an estate tail sions and re

and all rever

mainders

The reason

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, and keepeth the reversions to himself; thereupon. then neither the heir, nor the remainder, nor the reversion, is barred by the recovery. The reason why the heirs, remainders, and reversions are thus barred, is because in strict law the recompence adjudged against the crier 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 recompence; and therefore he loseth the land, and is to trust to the recompence.

why a common recovethose in re

ry barreth

mainder and reversions.

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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, if 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 feesimple; 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, feoffment, or recovery, according to the use and intent of the parties.

Bargains, sales, and covenants to stand seised to a use, are all grounded upon one statute.

Upon this statute is likewise grounded the fourth and fifth of the sixth conveyances, namely, bargains, and sales, and 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. 4. The use is but the equity and What a use is. 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 make me not 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 statute conjoineth and conveyeth 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. there was no remedy for a use, but in chancery.

The stat. of 27 H. 8. doth not pass land upon the payment of

money with

dented and enrolled. The stat. of 27 H. 8. extendeth not to

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 out a deed in- 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 two parties, and the said writing also within six months enrolled in some of the courts at Westminster, 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.

places where they did enrol

deeds.

A covenant to stand seised to a use.

Upon an agreement in writing to stand seised to the use of any of his kindred, a use may be created, &c.

5. The fifth conveyance is a covenant to stand seised to uses. It is in this sort: A man that hath a wife and children, brethren and kinsfolks, may by 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 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. before mentioned, conveyeth the estate of the land, as the use is appointed.

A covenant to

stand seised eth not enrol ment as a bar to a use doth,

to a use need.

gain and sale

&c

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.

man may

Upon a fine, feoffment, or recovery, a limit the use listeth, without consider or money. a bargain and sale, or cove

to whom he

ation of blood

Otherwise in

nant.

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 not so when he maketh no estate, but agreeth to stand seised, nor when he hath taken any thing, as in the cases of bargain and sale, and covenant to stand seised to uses. 6. The last of the six conveyances of the conis a will in writing; which course of veyance of land by will. conveyance was first ordained by a 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 dis posing of lands by will, was thought

to be a delect

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 no power to dispose of their at the comlands, except they could make a feoff- mon law. ment, 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 farther proofs of their children or kindred, or increase of children or debt, or defect of servants or friends.

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 of it; which seeing it did not fitly serve, men used this devise:

The course that was in the stat of

vented before

32 H. 8. first gave power to

devise lands

by will, wasa conveyance of lands to

feoffees in

persons as

they should their will.

They conveyed their full estates of their lands, in their good health, to trust, to such friends in trust, properly called feoffees in trust; and then they would by their declare in 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 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

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