Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

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Title
Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.
Author
Finch, Henry, Sir, d. 1625.
Publication
London :: Printed [by Adam Islip] for the Societie of Stationers,
1627.
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Subject terms
Law -- England -- Early works to 1800.
Link to this Item
http://name.umdl.umich.edu/A00741.0001.001
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"Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author." In the digital collection Early English Books Online 2. https://name.umdl.umich.edu/A00741.0001.001. University of Michigan Library Digital Collections. Accessed June 12, 2024.

Pages

Page 111

CHAP. 3.

Of Hereditaments, where: of Estates.

A Possession is an Hereditament or Chattell.

Hereditament is a possession which one may haue an Estate in. One borne of Parents out of the Kings allegiance; such an one we call an alien. But (a) 1.1 an an aliens Sonne, borne in England is no alien: Nor by the Common Law, one borne beyond Sea, of English Parents, in the Kings subiection. And the Statute 25. E. 3. onely maketh it more cleere; is disabled to enioy any heredita∣ments, he shall haue no (b) 1.2 reall nor mixt action, nor is inheritable: but either his yonger brother being a denizen, shall haue it, or the (c) 1.3 Lord by Escheat.

Prerogatiue.

Therefore such a one purchasing (d) 1.4 any, though it be but for yeares, it is the Kings.

An Estate is particular, or an inheri∣tance,

And is Vncertaine, or Certaine.

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Vncertaine, which is determinable at a∣nothers pleasure, as an estate at sufferance, and at will.

At sufferance, when after lawfull occu∣pation, he continueth possessiō without au∣thoritie. * 1.5

As lessee for yeres, holding in after his terme expired, and before any entry made vpon him. But if he continue after entrie vpon him, then is he a wrong doer.

At will, when an estate is made during * 1.6 pleasure.

Statutes.

6. H. 8 cap 15. If the King giue land, or an office, durante bene placito, & after grant the same vnto another: the second graunt shall be void, if mention be not made ther∣in of the first.

Certaine, which is not so determinable, And is called a terme, whereupon may de∣pend a remainder or reuersiō: for a remain∣der cannot bee but vpon a particular estate precedent. As vpon a lease for yeres or life; * 1.7 vpon an (a) 1.8 estate to one & his heirs during the life of I S for in effect it is but an estate for life. But not vpon an estate to one and * 1.9 his heires, so long as I. S. hath heires of his

Page 113

bodie; For that is a fee simple determinable. Nor (b) 1.10 at the Common law, vpon an estate to one & the heires of his bodie: for it was a fee simple cōditionally; (c) 1.11 neither could any reuersion be of it.

Remainder, is a residue of the estate, at the same time appointed ouer: and there∣fore * 1.12 cannot be said to be ex assignatione, but ex dimissione of the Lessor, because it passeth at the same time.

Reuersion is a residue of the estate, not at the same time appointed ouer. As if a * 1.13 man let land for life, without saying more; the reuersion of the fee simple is in the les∣sor. And if he afterwards grant this to ano∣ther, the grantee hath a reuersion.

Termes are forfeited by plucking the inheritance out of him that hath it. As if te∣nant * 1.14 for life (or yeres) of land make a feof∣ment in fee: for thereby the fee simple pas∣seth, by reason of the liuerie.

Otherwise it is, if tenāt for life of a reuer∣sion or rent, grant it by his deede in fee: or if tenant (b) 1.15 for life take a fine of a stranger, sur conusance de droit, or sur release; for such a fine increaseth not his estate. But a (c) 1.16 fine by tenant for life to a stranger, sur conusance de droit come ceo quil ad de son done, is a for∣feiture. So if tenant for life (d) 1.17 pray in aide of a strāger, or (in (e) 1.18 a writ of right brought against him) ioyne the mise vpon the more

Page 114

right. And these are by reason of the estop∣pell.

Termes may be surrendred: that is to say, yeelded vp and drowned For a surren∣der cannot be of a fee simple. to him that the * 1.19 next and higher estate. As two Iointenants, * 1.20 and to the heires of one, hee that hath the freehold cannot surrender to the other: for both haue a ioynt possession, and the same estate. But Tenants in Common may: As the alienee of him that hath the free hold in * 1.21 the former case, may surrender to the other * 1.22 Tenant for life, where there is a remain∣der for life with remainder ouer in fee, cannot surrender to him in the remainder in fee; for he hath not the next immediate estate. Lessee for life cannot surrender to * 1.23 him in the remainder for yeres: But to him in the remainder for life hee may, for that remainder (as vnto him in the remainder) i an higher Freehold than the others estate, which is vnto him but pur auter vie.

Statutes.

Glocestr̄ cap. 7. Tenant in Dower, alie∣nating longer than during his owne life, he in the reuersion shal recouer against the A∣lienee in her life time.

A terme is for yeares, or life. The pre∣sent estate for life is termed a Free-hold (in deede) if he be actually seised of it (in Law) before his entrie, when it is cast vpon him

Page 115

by course of Law; as vpon the heire by death of his ancestor; vpon him in the re∣mainder by death of the particular Tenant.

A terme for life is either for his owne or pur auter vie, that is, for anothers life, where the tenant pur auter vie dying before * 1.24 the other, whom we terme Cesti qui vie, hee that can first hap it, shal inioy out the term, and is named an occupant, but if land be let to one and his heires during anothers life, the heire shall put out the occupant.

Inheritance followeth. Euerie Inheri∣tance at the Common Law is called a Fee simple: The release wherof, or of an estate for life, is not good to one that is but tenāt * 1.25 for yeares, without priuitie. As if Tenant for life or in fee, release to the Lessee for yeares of his disseisor. But the release of a terme for yeares to the Lessee for yeares of him that doth eiect him, is good enough: for there needs no priuitie.

And to these two estates of inheritance, and life, warrantie doth belong: which is an assurance warranting such an estate: for the word Warrantizabimus, onely maketh a * 1.26 warrantie, and not defendemus. And if a lease for yeres be made with warrantie, this sounds not in nature of warrantie, but of a couenant, because it is a chattell. A•••• if the Lessee be ousted, yet hee may haue an action of Couenant. But in a warranty of a fee or Free-hold, the partie shall haue no aduantage vnlesse he be tenant of the land.

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Euerie exchange hath a warranty knit * 1.27 by law. And therfore the Exchangor or his heire may vouch to warrantie by an ex∣change without deede, and his Assignee re∣butte.

Inheritāce is an estate descendable: for * 1.28 inheritance neuer lineally ascends, as from the sonne (that purchaseth in fee simple, & dieth without issue) to the father: but al∣waies discends, as to the vncle, brother, &c. to his heires that hath actuall possession.

As if the eldest brother once enter, his * 1.29 sister of whole bloud shall inherite, & not his brother of the halfe bloud. But if he ne∣uer enter, the brother of the half bloud shal inherite as heire to his father.

An heire is the next of worthiest of whole * 1.30 bloud: for the halfe bloud is inheritable, being also of bloud to the first purchasor.

So the bloud of the fathers side is wor∣thier than the mothers: the elder brother * 1.31 worthier than the rest. Therefore these shal inherite first.

So, lands purchased may go to the heires * 1.32 of the part both of the father and mother of the purchasor, vnlesse it be once attached in the heire of the part of the father; for thē the heire of the part of the mother shall ne∣uer haue it, because they are not of bloud to him that was last seised.

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But Lands discended goe onely to the heire of that part from whence it discends: as if from the father who did purchase it; then it may goe to the heires of the part of the mother of the same father, but not to the heires of the part of the sonnes mother. For though they be of bloud to the sonne that was last seised: yet they are not of bloud to the father which was the first pur∣chasor.

He that is begottē out of mariage, is cal∣led * 1.33 a bastard: for if a womā great with child take a husband, the issue borne (though it * 1.34 be within sixe weekes after) is no Bastard. Or if the wife clope from her husband, and continue in adultrie, yet the issue borne during that time (if both bee within the foure Seas) is intended lawfully begotten. And if one die, his wife priuement inseint * 1.35 (that is, so with child as it is not discer∣ned) and she take another husband, the is∣sue borne within a moneth (or such a time as it is impossible he should beget it) shall be accounted the son of her first husband, and such a bastard is of bloud to none: in Law, (a) 1.36 nullius filius.

And therefore cannot inherite: nor bring (b) 1.37 a Writ of Detinue as heire; nor bee a villeine (c) 1.38 but by his owne confession in Court of Record: and the land shall (d) 1.39 es∣cheate where there is no issue but such a ba∣stard, nor other heiere.

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But (e) 1.40 marriage following after, gai∣neth him the right of inheritance, if after the fathers death he enter before his youn∣ger brother, (f) 1.41 or sister if both be females, borne (g) 1.42 of the same father and mo∣ther within espousals: who is called mu∣lier puisne, and the other Bastard eigne, and continue (h) 1.43 the possession all his life with∣out interruption. And that (i) 1.44 although the mulier puisne be an infant: because this bin∣deth the right. For (k) 1.45 such a bastard is a Mulier by the Law of Holy-Church: and therefore hath a colour to enter as heire to his father.

If the next be women in equall distance, * 1.46 as daughters, sisters, Aunts, &c. they shall inherite alike, and are but as one heire, cal∣led parceners or coparceners.

Where the generall entrie of one, is of * 1.47 the rest, if they liste. So is not a speciall en∣trie to her owne vse.

As if Tenant in Taile haue issue two daughters, and the eldest entreth into the whole, and thereof maketh a feoffement with warrantie; this is a collaterall War∣rantie, and a barre to the puisne daughter for her moitie. Which prooueth, That this speciall entrie is not the entrie of both: for then it were a Warrantie commencing the disseisin, and no barre. But all this is to be vnderstood where the other coparceners list to haue an entrie for them, and not other∣wise.

Page 119

And therefore in a Partitione facien∣da * 1.48 of rent, it is a good plea for the defen∣dant if she is sole seised, without that, that she holds pro indiuiso. And the plaintife is driuen to a nuper obijt. And if one enter, * 1.49 both cannot be vouched as heires, for that is to their disaduātage. But both may haue an assise.

The inheritance it selfe that discendeth, shall bee charged by the deed of the same (a) 1.50 Ancestor,

Whether Obligation, couenant, annuity, warrantie, or whatsoeuer else: but not by any bare matter (b) 1.51 en fait, as of ones An∣cestor time out of mind haue beene woont to pay an annuitie, &c.

Binding himselfe and his heires.

But if either a man bind his heirs to pay * 1.52 xx. l. a yere, or such like, but not himself; or himself (d) 1.53 without naming his heirs: there the heire shall not be charged, though he haue assets by discent. And therefore (e) 1.54 the heire being charged onely by reason of as∣sets, when he hath assets, the same is coun∣ted his own debt, & the action of debt lieth against him in the debet & detinet, not in * 1.55 the detinet onely. And for one acre onely by discent, the heire shall be chargeable to an Obligation of 1000. l. but no other land shall be put in execution, but it. So, though it bee but a reuersion that discendeth: In which case the Iudgement shall be Quod

Page 120

recuperet debitum, & damna de praedicta re∣uertione leuanda cum acciderit. And a speci∣all Writ shall goe out to extend the whole.

Statutes.

Merton. cap. 5. A Nomine poenae shal not incurre vpon an heire within age.

The dying seised of the inheritance and * 1.56 freehold together. Not of a free-hold onely, as of an estate for his own or anothers life, nor of a remainder or reuersion where the Free-hold is out of him.

Whereby the land discendes vnto his heire. For if it escheate, as by the death of * 1.57 the Alience of the Disseisor, without heire, the disseisee may enter; taketh away the entrie of euerie one, We call it a discent that tolleth entry, whether it be of one that hath right, as in the dying seised of a dissei∣sor, (a) 1.58 abator, (b) 1.59 or intrudor; or of one that hath but title that may haue an action: as an Infant (c) 1.60 whose feoffee after his full age, dieth seised: hee (d) 1.61 in the reuersion, where tenant for life doth Alien, and the Alienee dieth seised; the Deuisee (e) 1.62 of land in London, if the heire enter and die seised. For the Infant may haue a Dum fuit infra ae∣tatem, he in the reuersion a consimili casu, & the Deuisee in that case an ex graui querela. But if the Disseisor of the feoffee vpon * 1.63 condition, or an Alienee in Mortmaine die

Page 121

seised: or if a man deuise, that I. S. shall sell his lands at London, &c. and the heire bee disseised or make a feoffement, and the Dis∣seisor or feoffee die seised: yet the feoffor vpon condition in the first case, the lord of whom the land is holden in the second case, and I. S. in the last case may enter, not∣withstanding any descent: for they haue no remedie.

But claime vpon the Land within a yere before the death, it is called continual * 1.64 claime, or if they dare not vpon the land for feare of some bodily hurt, then as neere the Land as they dare, saueth their entrie.

Statutes.

32. H 8. cap. 23. The dying seised of a disseisor by strength, and without title, tol∣leth not the entrie of him and his heires, which at the time of the discent had good title of entrie, vnlesse the disseisor had peaceable possession by fiue yeres next after the disseisin.

A fee simple, is a fee simple, conditionall or absolute.

Conditionall is a fee simple to one and the heires of his bodie: for that is a fee sim∣ple * 1.65 at the Common law: but the hauing of

Page 122

issue made it a more perfect fee simple than before.

Which before issue cannot bee alienated, * 1.66 after issue had, becommeth an absolute Fee simple.

And may be alienated or forfeited by at∣tainder * 1.67 of felonie. But so, as if the Issue faile before the alienation, the donor, or gi∣uer, shall haue it.

And this by the statute of Westm̄. 2. C. 1. being restrained from all alienation (to the preiudice of the Issues) and that so as by the verie words of the Statute, a reuersion de∣pends vpon it; is now become, and made by the construction of that Statute, a new kind of estate, deuided from a fee simple, & called an estate Taile. Which name for plainesse sake we vse hereafter, calling the other onely a fee simple. And the name of Inheritance we applie indifferētly to them both. In which sence all common vse doth take those words.

Statutes.

Westm̄ 2. cap. 1. The Will of the giuer (according to the forme in the Deede of Gift manifestly expressed) shall bee from henceforth obserued. So that they to whō the land was giuen vnder such condition, shall haue no power to alien the land so gi∣uen,

Page 123

but that it shall remaine to their issue after their death, or shal reuert to the giuer or his heires (if issue faile) neither shall the second husband of any such woman from henceforth haue any thing of the land so giuen, vpon condition after the death of his wife (by the Law of England) nor the issue of the husband and wife shal suc∣ceed in the Inheritance: but immediatly af∣ter the death of the husband & wife (to whō the land was giuen) it shall returne to their issue, or to the giuer or his Heires, as afore∣said.

34. & 35. H. 8. cap. 20. No common re∣couerie of lands in taile, of the gift or other prouision of the King or his Progenitors, (though it be with voucher against tenant in taile, the remainder or reuersion beeing in the king at the time of the recouerie) shal bind the heire in taile, or barre him of his entrie. Tenaunt in taile shall take no aduantage for any recompence in value against the vouchee or his heires.

Hither belong hereditaments giuen in franke marriage; that is to say, freely in marriage with ones Kinswoman.

For the verie word Franke marriage im∣plieth * 1.68 an inheritance to the Donees, & the heires of their two bodies begotten.

But land cannot be giuen in Frank mar∣riage * 1.69 with a man that is Cosen to the Do∣nor,

Page 124

but alwayes with a woman.

Absolute, is a fee simple to one and his heires whatsoeuer: which discending to fe∣mals (if one of them haue lands of the same Ancestor by frankemariage) she shal haue no more vnlesse she be content to put those lands in Hotchpot; that is, that the value thereof be allowed to the other.

As if x. acres were giuen to her in Franke * 1.70 mariage, and xx. acres more (all of equal va∣lue) descend from the same donor, she put∣ting all together that that value may bee knowne, shall retaine her own x. and haue v. acres more.

But if the lands discend from the father of * 1.71 the Donor, or other Ancestor, and not the Donor himselfe; she shall haue her part in that which discendeth, without putting in Hotchpot: for she is not aduanced by him, but by the other.

No more shall any Hotchpot bee, but in * 1.72 lands giuen in franke mariage. For if a wo∣man haue lands by any other gift, she shal haue her part of that which discendeth, as if no such gift had beene. And the reason of all this is, for that (if she wil not put the * 1.73 land in Hotchpot) the Law intendeth that she holds her selfe sufficiently aduan∣ced. And note, that vpon the Hotchpot, the lands giuen in frank marriage must al∣waies remaine to the Donee.

Page 125

To this place are to be referred Lands giuen to a Corporation, which goe in per∣petual succession.

And therefore Lands giuen to a Maior a * 1.74 Comminaltie, without saying, And to their successors, is a Fee simple, and though the Grant be for their liues. For those are voyd words.

And a colour in an Action of Trespasse, * 1.75 cannot be giuen in a Corporation by a lease for terme of their liues: for beeing a Bodie politicke (which neuer dieth) they cannot haue such an estate.

Here two speciall estates for life; dower, & Tenancie by the curtesie of England, do arise after ones death that hath an inheri∣tance ioyned with the Freehold.

For they (a) 1.76 may be of a reuersion depen∣ding vpon an estate for yeares, and conse∣quently of the rent, if any be reserued. But (b) 1.77 not where one hath an estate for life, the remainder to another in taile, the remain∣der to his owne right heire: whether it bée a fée simple, or such an estate taile as may goe to the issue had betwéene the Donees; that wife, or that husband (if the Donée be a woman.) As if lands bee giuen to a man * 1.78 and the heires that he shall beget of the bo∣die of his wife; the same wife shall bee in∣dowed, but not a second wife. And of lands giuen to a woman & the heires of her body begottē by the husbād, her husband may be tenant by curtesie, but not a second. So of * 1.79

Page 126

landss giuen before the Statute of West. 2. to a man, and a woman, and the heires of their two bodies; the second wife shall not be endowed, nor the second husband be Tenant by courtesie, for their issue can∣not inherite. But in both cases the wife * 1.80 of euery issue (inheriting by force of that gift) shall bee endowed, and the husband of euerie such issue may be tenant by cour∣tesie. So of Lands giuen to a man and the heires of his bodie, or to a woman and the heires of her bodie, whatsoeuer wife the husband taketh may be endowed, & what∣soeuer husband the wife taketh may bee Tenant by courtesie.

Dower is an estate whereby the wo∣man * 1.81 hath the thirds in seueraltie, who must bee nine yeares of age at the time of her husbands death. Detaining of deedes * 1.82 concerning inheritance descended to the heire, is a barre of her Dower, so long as she deteineth them: but (b) 1.83 so it is not of lands purchased by the heire.

If the husband at the Church doore, * 1.84 (which is called an endowment, ad ostium Ecclesia, or, being (c) 1.85 heire apparant by the fathers or mothers consent, which is cal∣led an endowment, ex assensu patris or (d) 1.86 matris, &c. for the (e) 1.87 Sonne must make the endowment, and they assent, doe (f) 1.88 presently vpon affiance, not (g) 1.89 before espousals, endow her of any certainty, as

Page 127

of the whole moity, or lesse part, &c. this shall barre her of the thirds if she agree to it. But so shal not an endowment, ad ostium * 1.90 camera, nor, ex assensu fratris, or consanguinei: * 1.91 Therefore it is at her election after her hus∣bands * 1.92 death to hold her to this endow∣ment, or to take her Dower at the Com∣mon * 1.93 law. And in such endowments the wife may enter after her husbands death, without any bodies assignment, (because the certainty of the land which shee shall haue appeareth) which in dower at the Common law she cannot.

Statutes.

Magn. Chart. cap. 7. The wife, after the death of her husband, shall abide in his chiefe messuage forty daies, within which time, her dower shall bee assigned her If the chiefe messuage be a Castle, then she shall haue a competent house prouided her till her dower be assigned.

Westm. 2. cap. 34. A woman that lea∣ueth her husband, and abideth with an A∣dulterer, shall not haue dower, vnlesse the husband (voluntarily, and without coerti∣on of the Church) reconcile himselfe, and suffer her to inhabite with him.

11. H. 7. cap. 20 If a woman that hath an estate in dower for life, or in taile ioynt∣ly with her husband, or onely to her selfe,

Page 128

or to her vse in any lands, &c. of the inhe∣ritance or purchase of her husband, or gi∣uen to the husband & wife by the husbāds ancestors, or any seised to the vse of the hus∣band or his ancestors, do sole (or with an af∣ter taken husband) discontinue or suffer a recouerie by couin, it shall be void. And he to whom the land ought to belong after the death of the said woman may enter (as the woman had beene dead) without any discontinuance or recouerie: Prouided, that shee may enter after the husbands death. But if the woman were sole, the recouerie or discontinuance barreth her for euer

This act extends not to any recouerie or discontinuance with the heire next inheri∣table to the woman, or by his consent of Record inrolled.

27. H. 8. cap. 20. Where an estate is made in possession or vse to husband and wife, and his heirs, or the heirs of their two bo∣dies, or to them for their liues, or for the wiues life for her Iointure, shee shall not haue any dower: vpon a lawfull euiction of that Iointure, she shall be indowed ac∣cording to the rate of land of her husbāds, whereof she was dowable.

Such a joynture being made after mar∣riage, the wife (after her husbands death) may refuse it, and betake her to her dower, vnlesse the Iointure be made by Act of par∣liament.

Tenancie by the curtesie of England is

Page 129

•••• estate, whereby of an actuall possession, the husband that had issue by her borne * 1.94 aliue (whether the issue be male or female, heard, or seene, and whether it afterwards die or liue, or if (a) 1.95 the issue be borne aliue, it is sufficient, though it bee not heard to crie (in as much as he may be borne dumbe) shall haue the whole.

But no tenancie by curtesie shall be of a * 1.96 possession in Law. As where lands discend to the wife, and she dieth before the entry by her, or her husbād, or any for them. Nor of a thing in suspence: As where tenant in fee of the Land, marrieth a woman that is seised of the seigniorie in fee; the husband can neuer be tenant by the curtesie of the Seigniorie: for by the intermarriage it is suspended. And it is called tenancie by the * 1.97 courtesie of England, because no other Realme vseth it.

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