A treatise of the principal grounds and maximes of the lawes of this nation very usefull and commodious for all students and such others as desire the knowledge and understandings of the laws / written by that most excellent and learned expositor of the law, W.N.

A TREATISE OF PARTICULAR ESTATES.

Particular ESTATES.

A Particular Estate is such, as is derived from a general Estate, by separation of one from the other; As if a man seised in Fee simple of Lands, or Tene∣ments, doth thereof cheat by gift or grant an ••state Tayle, or by demise a Lease for life, or •…•…y estate for years, these are in the Donee, or ••easee. Particular Estates in possession derived ••nd separated from the Fee simple, in the De∣•…•…nor, or Leasor in Reversion.

Also if Lands be demised to A. for life, the remainder to B. and the Heires of his bo∣dy, the remainder to C. and his heires, the Estate for life limited to A. the Estate Tayle limited to B. are particular Estates derived ut supra, and separated in Interest from the Fee simple; the remainder given to C. albeit the same remainder doth depend upon those Particular Estates.

And of Particular Estates, some are created by agreement between the Parties; and the particular Estates before specified: And some by act of Law; as the state in Tayle apres possibility de issue extinct, Estates by the courtesie of England, Dower and Wardship for albeit an estate in Dower, be not com∣pleat untill it be assigned, which oftentime is done by assent and agreement between parties; yet because the partie that so assign¦eth the same, is compellable so to do by cours•• of Law, that Estate is also said to be create by Law; also an Estate at will is a kinde of particular Estate, but yet not such as maket•• any Division of the Estate of the Lessor, is sei¦sed, for notwithstanding such an Estate, the Lessor is seized of the Land in this Deme•…•…¦sure as for Fee in possession, and not in Re¦version.

Also an Estate at will is not such particular

Estate, whereupon a Remainder may de∣pend; But of all the Estates before mention∣ed, many fruitfull rules, and observations, are both generally, and particularly so lively set forth by the said Mr. Littleton in the 1, 2, 3, 4, 5, 6, 7, and 8. Chapters of his first Book, which is extant as wel in English as in French, whereunto I referr you.

Possession.

IT is further to be observed, that all Estates that have their being, are in Possession, Reversion, Re∣mainder, or in Right, but of all these, Possession is the Principall: there are two degrees of the first, and chiefest possession, in fait poss, in Law or Deed, is such as is before spoken of: And that is most proper to an Estate, which is present and immediate; but yet such possession of the im∣mediate Estate, if it be not greater then a tearm doth operate and enure to make the like possession of the Free-hold, or Reversion; when a man is said to have a Tearm, it is to be intended for years, when it is said, a man to have the Fee of Lands, it is also to be intended a Fee simple; Possession is that possession, which the Law it self casteth upon

a man before any Entry, or Pernancy of the profits: As if there be Father and Son, and the Father dieth seised of Lands in Fee, and the same do descend to the Sonne, as his next Heire in this case, before any entry, the same hath a possession in Law; so it is also of a Reversion exportant, or a Remainder dependant upon particular Estate, or life; in which case, if Tenant for life die, he in Reversion, or Remainder, before his Entry, hath only possession in Law. All manner of possessions that are not possessions in fait, are only possessions in Law; and it is to be ob∣served then, if a man have a greater Estate in Lands then for years, the proper phrase of speech is, that he is thereof seised; but if it be for years only, then he is thereof possessed: But yet nevertheless the Substantive (posses∣sion) is proper as well to the one as to the o∣ther.

Reversion.

A Reversion is properly an Estate which the Law reserveth to the Donor, Grantor, or Lessor, or such like, which he doth dispose par∣cel of his Estate, when he doth dispose less E∣state in Law then that whereof he was seised, at the time of such disposition: as if a man

seised of Lands in Fee, doth give the same to another; and the Heires of his body, or if he doth dismiss the same for life or years; in these cases the same reserveth the reversion thereof in Fee, to the Donor, or Lessor, and his Heires; because he departed not with his whole Estate, but onely with a particular E∣state, which is less then his Estate in Fee; and such Reversion is said to be expectance upon the particular Estate. Also if he that is but Tenant for life, for Land, and doth by Deed or paroll, give the same S. in Tayle, or for tearm of his life, which is a greater Estate then he may lawfully dispose; In this case the Law reserveth a Reversion in Fee, in such Donor, though he were formerly but Tenant for life: and the reason thereof is, for that by such unlawfull disposition, which by deed or word, cannot be without livery and seisin, he doth by wrong pluck out the right∣full state in Fee, from him that was thereof formerly seised in Reversion or Remainder, and thereof by a priority of time, gained in an instance, he was seised of a Fee simple, at the time of the executon thereof. But if a man seised of Lands in Fee simple, giveth the same to A. and his heirs, until B. do die with∣out heire of his body; in this case the Law reserveth no Reversion in the Donor, because

the state is disposed to A. is a Fee simple, deter∣minable, is in nature so great as the state, which the Donor had at the time of such gift, and consequently he departed thereby with al his state, and therby an apparent difference is be∣tween a gift made to A. and the heires of his own body, and a gift made to him and his heires, until B. die without heire of his body: for in the one case the Donor hath but an E∣state Tayle, and in the other a Fee simple de∣terminable, hath a possibility of Revertor: for if B. die without heire of his body, then whether A. be living or dead, shall revert to the Donor, but such possibility of Reversion, for he that hath but such a possibility, hath no Estate, nor hath he power to give his pos∣sibility; but in the other case, the Donor hath Estate in Fee; and therefore he hath power to dispose thereof at his pleasure.

Remainder.

A Remainder is a remnant of an estate disposed to another at the time of creation of such particular Estates, whereupon it doth depend, as if S. seised of lands in Fee, demiseth the same to B. for life, the remainder to C. and the heirs of his body, the remainder to D. and his heirs; In this

case I. S. hath a particular Estate of the Les∣sor, is then also disposed to C. and D. ut su∣pra, whereby B. hath an Estate for life, C. a Remainder in Tail, and D. a Remainder in Fee, depending in order upon the particular Estate in possession; and in every Remain∣der five things are requisite.

First, That it depend upon some particular Estate.

Secondly, That it pass out of the Grantor, Donor, or Lessor, at the time of the creation of the particular Estate, whereon it must de∣pend.

Thirdly, That it veste during the particular Estate, or at the instant time of the determi∣nation thereof.

Fourthly, That when the particular Estate is created, there be a Remnant of an Estate left to the Donor, to be given by way of Re∣mainder.

Fifthly, That the person or body to whom the Remainder is limitted, be either capable at the time of limitation thereof, or else in potentia propinqua, to be thereof capable, during the particular Estate; If Lands be given to I. S. and his Heirs, the Remainder for default of such Heir to I. D. and his Heirs, that Remainder is void, because it doth not depend upon any particular Estate; But if

Lands be given to I. D. the life of I. D. the Remainder to I. B. his Remainder is good, for it is not limited to depend upon a Fee∣simple, but upon a particular Estate; which is onely called an Estate for life of I. B. descen∣dable: if Lands be given to B. for 11. years, if C. do so long live, the Remainder, after the death of C. to D. in Fee, this Remain∣der is void, for in this case it cannot pass out of the Lessor at the time of the creation of the particular Estate for years: but if a Lease be made to B. for life, the Remainder to the Heires of C. (who is then living) this Remainder is good, upon a contingency, that if C. dye in the life of B. for that Re∣mainder may well pass out of the Leassor presently without be yaunce, without any inconveniency, because onely the inheritance separated from the Free-hold, is in abeyance: if Lands be given for life, with a Remainder to the right Heirs of I. S. and the Tenant for life dyeth in the life of I. S. this Remainder is void, because it died not vest or settled, ei∣ther during the particular Estate, or at the time of the determination thereof, for un∣til, I. S. die, no person is thereof capable, by the name of the Heir.

But if Lands be given to I. S. for terme of his life, the Remainder to his right Heir,

(in the singular number) and the Heirs of his body, and after I. S. hath issue a Son and dyeth, that is a good Remainder, and the Son hath thereby an Estate Tail, for although it were unpossible that such Re∣mainder should vest during the particular E∣state; because during his life, none could be his Heir; yet it might be and did vest at the instant of his death, which was at the time of his determination of the particular E∣state.

Concerning the fourth thing, if a man sei∣sed of Lands in Fee, granteth out of the same a Rent, or Common to Pasture, or such like things, which before the grant had no being, to I. S. for terme of life, the Remainder to I. D., in Fee, this Remainder is void, because of this thing Granted, there was no Remnant in the grant to dispose. And because some heretofore have been of opinion, that albeit the same cannot take no effect, as another Grant of a new Rent or Common. Ʋtres magis valeat quam operat.

This is a rule in Law, that a thing enjoyed in a superior degree, shall not pass under the name of a thing, in any inferior degree; and therefore if Lands be given unto two persons, and unto the Heirs of one of them, unto the Husband and Wife, and Heir of the Hus∣band;

and he that hath the Estate of Inheri∣tance, granteth the Version of the same Land to another in Fee, such Grant is void, be∣cause the Grantor was thereof seised in a su∣periour degree, viz. in Possession, and not in Reversion, as appeareth 22. Ed. 4. fol. 2 & 13. Ed. 3. Brook. title of Grants, 137.

And concerning the first and last thing, if a Lease be made of Land, for term of life, the Remainder to the Major and Commonalty of D. whereas there is no such Corporation therein, being this Remainder is meerly void, albeit the Kings Majesty by his Letters Pattents, do create such Corporations, du∣ring the particular Estate; for at the time of such grant, the Remainder was void, be∣cause then there was no such body corporate thereof capable, or potentia propinqua to be created and made capable thereof, during the particular Estate, but the possibility thereof, was then forraign and probably intended. The like law is, if a remainder be limited to I. the Son of T. S. who had then no Son, and afterwards during the particular Estate, a Son is born who is named John, yet this Remainder is void; for at the time of such a Grant, as was not to be probably in tender, that T. S. should have any Son of that name.

Also before the dissolution of Abbies; if a Lease of Land were made to I. S. for life, the Remainder to one that then was a Monk, such Remainder was void, for the cause be∣fore alledged, albeit we were deraigned du∣ring the particular Estate. But if such Re∣mainder had been limited to the first begot∣ten Son of I. S. it had been good, and should accordingly have vested in such a Son afterwards born, during the particular E∣state.

Rights.

A Right in Land, is either cloa∣thed or naked; a Right cloa∣thed, is when it is wrapped in a possession, Reversion, or Remainder; a naked Right, which is also most commonly called a Right, is when the same is separated from the posses∣sion or Remainder, by dissessin, discontinu∣ance, or the devesting, and separating of the possession; as for example, if a Lease of Land be made for life to I. S. the Remainder to I. D. in Fee, in this case I. S. hath a Right cloathed with a Remainder. But if a Stranger that hath no Right or Title, doth in the same case enter into the Land by wrong, and put I. S. out of

possession, such entry by wrong is called a disseisin; and therefore the possession is moved from the Right by reason thereof, the Disseisor, is seised of the Land, and I. D. hath also the like naked cloathing to the Re∣mainder, by such dissessin, is likewise devested, and plucked out of him, cannot be revested in him, during the Right of such particular E∣state, unless the possession of the particular Tenement but therewith revested; which must be by this entry or recovery by action; and by such entry of the particular Tene∣ment, or by his Recovery, with execution, the Remainder shal be invested, as well as the particular Estate; and so there is a Right in goods and chattels, as well as Lands, Tene∣ments, and Hereditaments, which is also cloathed with a possession, so long as the Rightful proprietor hath the same, but if an∣other doth take them from him by wrong, he now hath onely a naked Right to the same, which cannot be by him granted, for the cause before alledged, but yet he may release his Right there unto him that is thereof pos∣sessed; for the same reason that is before al∣ledged, if a release of Right, happen to be forfeited to the King, his Highness may grant the same by his Prerogative.

FINIS.