The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCCXXXIX. The Serjeant's Case. Mich. 32 Eliz. In the Common Pleas.

TEnant in tail, and he in the Remainder in Fee joyn in a Grant of a Rent-charge in Fee, to the issue of Tenant in tail a year before the Statute of 27 Eliz. of fraudulent Conveyances; and afterwards the Tenant in tail, and he in the Remainder sell the Land; and afterwards a Praecipe is brought against Tenant in tail, who voucheth him in the Remainder, who voucheth the Common Vouchee, and so a Recovery is had, and seisin according∣ly; The issue in tail dieth without issue, Tenant in tail dieth, the Vncle distraineth for the Rent. Glanvil Serjeant argued, That this grant of the Rent is altogether the grant of the Tenant in tail, and that nothing passed from him in the Remainder; and that it doth enure as one entire Grant, and not as several Grants: As where Tenant for life, and he in the Reversion joyn in a Lease; it is one entire Lease, and the Lease of them both; and they shall both joyn in an Action of Waste. But admit that here are several

Grants, yet the Estate out of which the Rent was granted, conti∣nuing the Rent, shall continue also: And now the Recoveror comes in the Post, and in the affirmation of the Estate of Tenant in tail; and the Remainder is utterly defeated and destroyed by the Re∣covery, and the Rent always issueth out of the particular Estate, and he cited, Littl. 125. If a Rent-Charge be issuing out of Land, and the Tenant of the Land leaseth the same for life, and afterwards the Rent is granted over; now he who hath the Free∣hold, ought to attorn, scil. the Tenant for life, for a Rent-Charge lieth always upon the possession; and if Tenant for life grant∣eth a Rent-Charge, and afterwards makes a Feoffment in Fee, the Rent shall continue until the possession be recontinued, &c. Harris Serjeant contrary, This Grant is the Grant of them both, scil. of the Tenant as long he hath issue of his Body, and after∣wards it is the grant of him in the Remainder: Where a Man de∣rives his Interest from two, the one being a particular Tenant, the other a Recoveror, or a Remainder in Fee; the Donee takes of each of them that which he may lawfully give, and no more; and the particular Estate being then ended, the Donee shall be then ac∣compted in by him in the Reversion, &c. See 2 E. 4. 1. And he vouched the Case of the Lord Mountjoy, The Lord Mountjoy took to Wife a Woman Enheretrix, she had issue, and so he was inti∣tuled to be Tenant by the Curtesie, and acknowledged a Statute, and afterwards he and his Wife levyed a Fine, and died; Now the Conusee shall hold the Land discharged of the Statute; for after the death of the Husband, the Conusee is in by the Wife only: and so paramount the charge. Also he said, That this Grant of the Rent by the Father to the Son, is fraudulent, and so shall be intend∣ed, if the contrary be not shewed and averred. And so it was of late adjudged in the Court of Wards, Where a Man alieneth to his Son and Heir for Mony, (and Mony in truth is paid) yet notwith∣standing it shall be intended fraudulent, unless the contrary be shewed and averred.

Hanham Serjeant, This Grant shall enure first as the Grant of Tenant in tail; and after the death of the Tenant in tail with∣out Issue, it shall be the Grant of him in the Remainder. And to this purpose, he put Newdegate's Case, 7 Eliz. Dyer 234. Lessee for life, and he in the Reversion, Lease for years by Indenture, That during the life of Lessee for life, is his Demise only, and the Confirmation of him in the Reversion; but after the death of the Lessee for life, it is the Lease and Demise of him in the Reversion, and he shall have an Action of Waste ex dimissione sua propria, without shewing the special matter in the Count. And if Tenant in tail granteth a Rent in Fee, and he in the Reversion confirm the Grant, it is good. See Litt. 121. And he said, That the Reco∣veror is in the Per; for it was holden in Winter's Case, That if a Man makes a Lease for years, rendring Rent, with clause of Re-entry, and afterwards suffereth a Common Recovery, That

such a Recoveror is an Assignee within the Statute of 32 H. 8. to take benefit of a Condition; and Recoveries are now common Conveyances. And if Tenant for life be, the Remainder over in Fee, and Tenant for life grants a Rent-Charge, and afterwards ceaseth, and the Lord recovereth in a Cessavit, he shall hold the Land charged. And as to the Collusion, it is not shewed in the pleading, That the Grant was made by Collusion: for if the Col∣lusion be not apparent, the Iustices, without averment of it, are not bounden to take Notice of it.

Cowper, Serjeant, Here are two several Grants, and one Grant intire in the Letter, may enure as several Grants, as if two Tenants in Common grant a Rent of 10 s. here are seve∣ral Grants, and he shall have several Rents of 10 s. And if A. disseiseth B. of Black-Acre, and C. disseiseth B. of White-Acre, and afterwards by one Deed releaseth to A. and C. the same shall enure as several releases upon their several possessions. And he in his Argument relied much upon the Collusion, and this Grant shall be taken by the Iustices to be fraudulent; for it was made 20 Eliz. and the Recovery was 21 Eliz. and in 27 Eliz. came the Statute.

Beamount Serjeant, This Grant shall enure as several Grants; i.e. as a Grant of Tenant in tail, and afterwards as of him in the Reversion: Two Ioynt-Tenants Enfants make a Feoffment, They shall have several Writs of Dum fuit infra aetatem, as upon several Feoffments. 19 H. 6. 43. Two Coparceners take Hus∣bands, who discontinue, and die; their Wives shall have several Writs of Cui in vita: and yet the Discontinuance was joynt. And 15 H. 7. 14. If 3 Coparceners be, and upon partition one of them granteth to the two others Rent of 20 s. per annum for equality of partition, that Rent shall be in the nature of Coparceners, and so shall descend; and shall not go to the Survivour but by descent. See 21 E. 3. 50. Also admit that it is the Confirmation of him in the Remainder, yet after the death of the Tenant in tail without Issue, now it is become the Grant of him in the Remainder. And to that purpose, he cited Newdegate's Case, 7 Eliz. Dyer, before cited. But posito, that it be the sole Grant of the Tenant in tail, yet here is not any Covin apparent; for Covin apparent ought to be averred and proved; otherwise the Iudges of our Law cannot adjudge upon it: for they cannot judge upon probabilities, as the Iudges of the Civil Law do; for so they should many times mini∣ster Injustice in the place of Iustice: And, that the same is not Co∣vin apparent, although it be made to his Son, he vouched 19 H. 6. 30. and 47 E. 3. 16. Where such a Feoffment to re-enfeoff the Heir of the Feoffor when he cometh of full age, is not in it self Co∣vin apparent, but it ought to be expresly averred. And he cited al∣so Warnford's Case, 3 Eliz. Dyer 193. And also he cited 17 Eliz. Dyer 341. upon the Statute of 27 H. 8. of Monasteries, Where there is a Proviso, Forasmuch as some of the Chief Governours of

such Religious Houses have lately fraudulently and craftily made Leases, &c. to the great decay and diminution of their Houses, That all such Leases, &c. made within one year before the making of this Act, shall be void, &c. And also there is a Proviso, That such persons as have Leases whereupon the old Rent is reserved, shall enjoy their Leases, &c. The Case was, That an Abbot made a Lease for 60 years, 47 days before the making of the said Act, upon which the ancient Rent was not reserved: It was holden there, That although the Lease was within the words of the Sta∣tute, (because made within a year) yet it shall not be intended Covinous, without an express averment of it; for it may be it was made bona fide. See Librum.

Yelverton Serjeant, This is a joynt Grant; but yet it shall charge the several Estates when they come into possession. Also he put this Case, Cestuy que Use, and the Feoffees after the Sta∣tute of 1 R. 3. and before 27 H. 8. joyn in a grant of a Rent; It shall enure as several Grants in respect of their several authorities; scil. one by the Statute of 1 R. 3. and the other by the Common-Law. And as to the Covin, he conceived, Tat it is Covin ap∣parent, and needed not to be averred: and that appeareth by the suffering of the Common Recovery.