Billeder på siden

So if tenant in tail discontinue, and the discontinuee make a lease for life, the remainder to the issue in tail being within age, and at full age the lessee for life surrendereth to the issue in tail, and tenant in tail die, and lessee for life die; yet the issue is not remitted and yet if the issue had accepted a feoffment within age, and had continued the taking of the profits when he came of full age, and then the tenant in tail had died; notwithstanding his taking of the profits, he had been remitted. For that which guides the remitter is, if he be once in of the freehold without any laches as if the heir of the disseisor enfeoffs the heir of the disseisee, who dies, and it descends to a second heir, upon whom the frank tenement is cast by descent, who enters and takes the profits, and then the disseisee dies; this is a remitter, causa qua supra.

Also if tenant in tail discontinue for life, and take a surrender of the lessee, now he is remitted and seised again by force of the tail; and yet he cometh in by his Lit. sec. 626. Own act: but this case differeth from all the other cases; because the discontinuance was but particular at first, and the new gained reversion is but by intendment and necessity of law, and, therefore, is knit, as it were ab initio, with a limitation to determine, whensoever the particular discontinuance endeth and the estate cometh back to the ancient right.

To proceed from cases of remitter, which is a great branch of this rule, to other cases:

If executors do redeem goods pledged by their testator with their own money, the law doth convert so much goods as doth amount to the value of that they lay forth to themselves in property; and upon a plea Dy. f. 2. of fully administered it shall be allowed: and

the reason is, because it may be matter of necessity for the well administering of the goods of the testator and executing of their trust, that they disburse money of their own; for else perhaps the goods would have been forfeited, and he that had them in pledge would not accept other goods but money: and so it is a liberty which the law gives them; and then they can have no suit against themselves; and therefore the law gives them leave to retain so much goods by way of allowance.

And if there be two executors, and one of them pay the money; he may likewise retain against his companion, if he have notice thereof. But if Dy. f. 187. there be an overplus of goods, above the value of that he hath disbursed, then ought he by his claim to determine which goods he doth elect to have in value; or else before such election if his companion do sell all the goods, he hath no remedy but in the spiritual court for to say he should be tenant in common with himself and his companion pro rata of that he doth lay out, the law doth reject that course for intricateness.

So if I. S. have a lease for years worth [29 H. 8. pl. twenty pounds by the year, and grant unto 7. in fine.] I. D. a rent of ten pounds a year, and after make him his executor; now I. D. shall be charged with assets ten pounds only, and the other ten pounds shall be allowed and considered to him: and the reason is, because the not refusing shall be accounted no laches. to him, because an executorship is pium officium, and matter of conscience and trust, and not like a purchase to a man's own use.

12 H. 4. f. 21.

Like law is, where the debtor makes the debtee his executor; the debt shall be con- Plow. f. 185. sidered in the assets, notwithstanding it be a thing in action.

[35 H. 6.]

Plow. f. 133 b. So if I have a rent charge, and grant it upon condition; now, though the condition be broken, the grantee's estate is not defeated till I have made my claim but if after any such grant my father purchase the land, and it descend to me; now, if the condition be broken, the rent ceaseth without claim.1 But if I had purchased the land myself, then I had extincted mine own condition, because I had disabled myself to make my claim. And yet a condition collateral is not suspended by taking back estate; as if I make a feoffment in fee, upon condition that I. S. shall marry my daughter, and take a lease for life from my feoffee; if the feoffee break the condition I may claim to hold in by my fee-simple: but the case of the charge is otherwise; for if I have a rent charge issuing out of twenty acres, and grant that rent over upon condition, and purchase but one acre, the whole condition is extinct, and the possibility of the rent by the condition as fully destroyed as if the rent had been in me in esse.

Fitz. Tit.
Grant 91.

So if the King grant to me the wardship of the heir of I. S. when it falleth; because an action of covenant lieth not against the King, I shall have the thing itself in interest. But if I let land to I. S. rendering a rent, with condition of re-entry, and I. S. be attainted, whereby the lease comes to the King; now my demand upon the land is gone which should give me benefit of re-entry, and yet I shall not have it reduced without demand: and the reason of difference is, because my condition in this case is not taken away in right, but only suspended by the priv

1 The rest of this paragraph is omitted in the Camb. MS.

2 Omitted in Camb. MS.

ilege of the person: for if the King grant the lease over, the condition is revived as it was.

So if my tenant for life grant his estate to the King; now if I will grant my reversion over, the King is not compellable to atturn; therefore it shall pass by grant by deed without atturnment.

So if my tenant for life be, and I grant my [9 Ed. 2.] reversion pur autre vie, and the grantee die living cestui que vie; now the privity between tenant for life and me is not restored, and I have no tenant in esse to atturn; therefore I may pass my reversion without



So if I have a nomination to a church, Dy. f. 48. pl and another hath the presentation, and the presentation comes to the King; now because the King cannot be attendant, my nomination is turned to an absolute patronage.

So if a man be seised of an advowson, and see 7 Rep. 8 a. take a wife, and after title of dower given he join in impropriating the church, and dieth; now because the feme cannot have the third turn because of the perpetual incumbency, she shall have all the turns during her life for it shall not be disimpropriated to the benefit of the heir contrary to the grant of tenant in fee-simple.

But if a man grant the third presentment to I. S. and his heirs, and impropriate the advowson; now the grantee is without remedy, for he took his grant subject to that mischief at the first: and, therefore it was his laches, and therefore not like the case of the dower. And this grant of the third avoidance is not like tertia

1 This explanation is omitted in Camb. MS.: as is the whole of the next


pars advocationis, or medietas advocationis, upon a tenancy in common of the advowson: for if two tenants in common be, and an usurpation be had against them, and the usurper do impropriate, and one of the tenants in common do release, and the other bring his writ of right de medietate advocationis, and recover; now I take the law to be that, because tenants in common. ought to join in presentments, which cannot now be, he shall have the whole patronage. For neither can there be an apportionment, that he should present all the turns and his incumbent but to have a moiety of the profits, nor yet the act of impropriation shall not be defeated: but as, if two tenants in com

45 Ed. 3. f 10. pl. 2.

mon be of a ward, and they join in a writ of right of ward, and one release, the other shall recover the entire ward, because it cannot be divided; so shall it be in the other case, though it be of inheritance, and though he bring his action alone.

Also if a disseisor be disseised, and the first disseisee release to the second disseisor upon condition, and a descent be cast, and the condition broken; now the mesne disseisor, whose right is revived, shall enter notwithstanding this descent, because his right was taken away by the act of a stranger.

But if I. S. devise land by the statute of 32 H. VIII. and the heir of the devisor enters and makes a feoffient in fee, and feoffee dieth seised; this descent bindeth, and there shall not be a perpetual liberty of entry upon the reason that he never had seisin where

1 In the Camb. MS. these cases of the devisee and patentee are introduced at the end of the Rule, with the introductory observation: "Note also, if it be not citra culpam suam, but that there be laches in the party, then the law useth no such indulgence to him." As to the point, see Co. Litt. 240 b., and Butler's note.

« ForrigeFortsæt »