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JOhn Sammes being seised of Grany Mead by Copy of Court Roll of the Mannor of Tollesham the great, of which Sir Thomas Becking∣ham, &c. and held the same of the King by Knights service in capite; Sir Thomas by his Deed indented, dated the 22 of December in the
first year of King James, made between him of the one part, and the said John Sammes and George Sammes Son and Heir apparent of the said John of the other part, did bargain, sell, grant, enfeoff, release, and confirm unto the said John Sammes the said Mead called Grany Mead, to have and to hold the said Mead unto the said John Sammes and George Sammes, and their Heirs and Assigns, to the onely use and behoof of the said John Sammes and George Sammes, their Heirs and Assigns for ever: and by the same Indenture Sir Thomas did covenant with John and George, to make further assurance to John and George, and their Heirs, to the use of them and their Heirs, and Livery and Seisin was made and delivered according to the true intent of the said Inden∣tures of the within mentioned premisses to the uses within mentioned.
John Sammes the Father dyeth, George Sammes his Son and Heir being within age, the Question was, Whether George Sammes should be in Ward to the King or no? And in this case three points were re∣solved:
1. For as much as George was not named in the premisses, he can∣not take by the Habendum; and the Livery made according to the in∣tent of the Indenture, doth not give any thing to George, because the Indenture as to him is voyd: but although the Feoffment be good onely to John and his Heirs, yet the use limited to the use of John and George, and their Heirs, is good.
2. If the Estate had been conveyed to John and his Heirs by the Re∣lease or Confirmation, as it well may be to a Tenant by Copy of Court Roll, the use limited to them is good: for upon a Release which creates an Estate, a use may be limited, or a Rent reserved without question; but upon a Release or Confirmation, which enures by way of Mitter le droit, an use cannot be limited, or a Rent reserved.
But the third was of greater doubt, If in this case the Father and Son were Ioynt-tenants, or Tenants in common? For it was object∣ed, when the Father is onely enfeoffed to the onely use of him and his Son, and their Heirs in the Per, that in this case, they shall be Te∣nants in common. By the Feoffment the Father is in by the common Law in the Per, and then the limitation of the use to him and his Son, and to their Heirs, cannot devest the Estate, which was vested in him by the common Law, out of him, and vest the Estate in him in the Post by force of the Statute, according to the limitation of the use: and therefore, as to one moyety, the Father shall be in by force of the Feoff∣ment in the Per, and the Son, as to the other moyety, shall be in by force of the Statute, according to the limitation of the use in the Post, and by consequence they shall be Tenants in common. But it was an∣swered and resolved, That they were Ioynt-tenants, and that the Son in the Case at Bar should have the said Grange by the Survivor: for if at the common Law A. had been enfeoffed to the use of him and B. and their Heirs, although that he was onely seised of the Land, the use was joyntly to A. and B. For a use shall not be suspended or extinct by a sole seisin, or joynt seisin of the Land: and therefore if A. and B. be enfeoffed to the use of A. and his Heirs, and A. dyeth, the entire use shall descend to his Heir: as it appeareth in 13 H. 7. 6. in Stoners Case: and by the Statute of 27 H. 8. cap. 10. of Vses, it appeareth, That when several persons are seised to the use of any of them, that the Estate shall be executed according to the use.
And as to that which was said, That the Estate of the Land which the Father hath in the Land, as to the moyetyof the use which he him∣self
hath, shall not be devested out of him: To that it was answered and resolved, That that shall well be: for if a man maketh a Feoff∣ment in Fee to one, to tho use of him and the Heirs of his body, in this case, for the benefit of the issue, the Statute according to the limitation of the uses, devests the Estate vested in him by the common Law, and ex∣ecutes the same in himself by force of the Statute; and yet the same is out of the words of the Statute of 27 H. 8. which are, Where any person, &c. stand or be scised, &c. to the use of any other person; and here he is seised to the use of himself: and the other clause is, Where divers and many persons, &c. be joyntly seised, &c. to the use of any of them, &c. and in this case A. is sole seised: But the Statute of 27 H. 8. hath been always beneficially expounded, to satisfie the intention of the parties, which is the direction of the uses according to the Rule of the Law. So if a man, seised of Lands in Fee-simple, by Deed covenant with another, that he and his Heirs will stand seised of the same Land, to the use of himself and the Heirs of his body, or unto the use of himself for life, the remainder over in Fee; in that case, by the operation of the Statute, the Estate which he hath at the common Law is devested, and a new Estate vested in himself, according to the limi∣tation of the use. And it is to be known, that an use of Land (which is but a pernency of the profits) is no new thing, but part of that which the owner of the Land had: and therefore, if Tenant in Bor∣rough-English, or a man seised of the part of his Mother, maketh a Feoffment to another without consideration, the younger Son in the one case, and the Heir on the part of the Mother on the other, shall have the use, as they should have the Land it self, if no Feoffment had been made: as it is holden in 5 E. 4. 7. See 4 and 5 Phil. and Mar. Dyer 163. So if a man maketh a Feoffment unto the use of another in tayl, and afterwards to the use of his right Heirs, the Feoffor hath the Reversion of the Land in him; for if the Donee dyeth without isse, the Law giveth the use, which was part of the Land, to him: and so it was resolved, Trinity, 31 Eliz. between Fenwick and Milford in the Kings-Bench. So in 28 H. 8. Dyer 11. the Lord Rosses Case: A man seised of one Acre by Priority, and of another Acre by Poste∣riority, and makes a Feoffment in Fee of both to his use: and it was adjudged, that although both pass at one instant, yet the Law shall make a Priority of the uses, as if it were of the Land it self: which proves, that the use is not any new thing, for then there should be no Priority in the Case: See 13 H. 7. b. by Butler.
So in the Case at Bar, The use limited to the Feoffee and another, is not any new thing, but the pernancy of the old profits of the Land, which well may be limited to the Feoffee and another joyntly: But if the use had been onely limited to the Feoffee and his Heirs, there, be∣cause there is not any limitation to another person, nec in praesenti, nec in futuro, he shall be in by force of the Feoffment.
And it was resolved, That Ioynt-tenants might be seised to an use, although that they come to it at several times: as, if a man maketh a Feoffment in Fee to the use of himself, and to such a woman, which he shall after marry, for term of their lives, or in tayl, or in fee; in this case, if after he marryeth a Wife, she shall take joyntly with him, although that they take the use at several times, for they derive the use out of the same fountain and Freehold, scil. the Feoffment: See 17 Eliz. Dyer 340. So if a Disseisin be had to the use of two, and one of them agreeth at one time, and the other at another time, they shall
be Ioynt-tenants; but otherwise it is of Estates which pass by the common Law: and therefore if a Grant be made by deed to one man for term of life, the Remainder to the right Heirs of A. and B. in Fee, and A. hath issue and dyeth, and afterwards B. hath issue and dyeth, and then the Tenant for life dyeth; in that case the Heirs of A. and B. are not Ioynt-tenants, nor shall joyn in a Scire facias to exe∣cute the Fine, 24 E. 3. Joynder in Action 10. because that although the remainder be limited by one Fine, and by joynt words, yet be∣cause that by the death of A. the Remainder as unto the moyety vested in his Heir, and by the death of B. the other moyety vested in his Heir at several times, they cannot be Ioynt▪tenants: But in the case of a use, the Husband taketh all the use in the mean time; and when he marryeth, the Wife takes it by force of the Feoffment and the limita∣tion of the use joyntly with him, for there is not any fraction and seve∣ral vesting by parcels, as in the other case, and such is the difference. See 18 E. 3. 28. And upon the whole matter it was resolved, That because in the principal case the Father and Son were Ioynt-tenants by the original purchase, that the Son having the Land by Survivor, should not be in Ward: and accordingly it was so decreed.