Critica juris ingeniosa: or Choice cases in the common-law never published by any other author. Digested under alphabeticall heads by H.B. Esq; optimum est quod quæritur.

Charge.

GRandfather, Father, and Son, the Father disseises the Grandfa∣ther and dies, the Son grants a Rent Charge, the Grandfather dies, the Son shall not avoid his own Charge by the accession of this new Right. If the Son disseises the Father, and grants a Rent Charge, and the Father grants a Rent Charge, the Land shall be charged in Perpetuum; but if the Son had been dead first it had been other∣wise, and his Son should have holden it discharged.

If a Stranger disseises the Father, and grants a Rent Charge, and infe∣offs the Son, and the Father dies, the Son shall hold it discharged. If the Father disseises the Grandfather, and dies, the Son enters, and grants a Rent Charge, the Grandfather dies, he shall hold it discharged, although he was of full age at the time of the Charge; [vide Sect. preced. cont.] As if Tenant in tail infeoffs the Issue within age, who grants a Rent Charge at full age, after the death of Tenant in tail the Son shall hold it discharged, for in both cases he is in of another estate.

If a Disseisor grants a Rent Charge, and is disseised, a Release is made to the second Disseisor, the Charge re∣mains.

If two Jointenants grant a Rent Charge, Provided that it shall not charge the person of one of them, some think he shall not charge the other.

Tenant in tail grants a Rent Charge in fee, and makes a Lease for forty yeares, rendring a Rent, and dies, the Issue accepts the Rent: some think the Grantee shall have the Rent du∣ring the Lease, and the life of the Is∣sue, though the Lessee surrenders; Quaere, for the Reversion is dischar∣ged. The Father disseises the Son, and grants a Rent Charge, the Son en∣dowes his Wife, ex assensu patris in the same Land, the Father and Son die, the Wife enters as Tenant in Dower, she shall hold it charged; for she doth not claim from the possession in Law, but from the possession charged. If Tenant in tail grants a Rent Charge, and dies, the Abator shall not hold it charged. But by many the Rent in the first case is avoided, for the free∣hold was discharged. The Father dis∣seises the Son, and grantes a Rent Charge in fee, and then makes a Lease for years, the Son confirms the Lease,

the Father dies, the Rent is extinct. So if a man grants a Rent Charge in Fee, and makes a Lease for years, and grants a Reversion to the King, or to the Grantee, the Rent is gone.

If there be two Disseisors, and the one grants a Rent Charge, the Dissei∣see releaseth to the other and his heirs, he shall hold it discharged, for he claims meerly from the Disseisee. But if one hath two Sons by divers venters, and dies, and before entry the Eldest grants a Rent Charge, and dies with∣out Issue, the youngest hath the Land from his Father, yet he shall hold it charged, for the eldest hath such an estate as he might charge; for if the eldest had died without Issue, and the Land had gone to the Unkle, and from the Unkle to the Father, though the Father cannot be Heir to the Son, yet being the Land was charged he shall hold it charged; so in the other case, Quaere, for there is a Mesne descent.

Tenant for life, the Remainder in Fee makes a gift in tail with a Remain∣der in Fee, he in the first Remainder releases all his Right to the Donee in tail, not saying to his Heirs, and af∣ter he grants a Rent Charge to a Stran∣ger out of the Remainder in Fee, and dies, the Donee dies without Issue,

the Heir of him in Remainder enters, if he shall hold it charged? For if he be remitted to his ancient Right, then the Land is discharged against him. And some think the Release could not give the Right in Fee, which the Re∣leasor had to the Releasee himself, for then in a manner he might Release to himself, and if the Release inures but as a Confirmation, then without question the Heir shall be remitted, and shall hold it discharged; but if the Remainder had been appointed in tail to him who had it before in fee, the Remainder over in fee, then the Release ought to inure to the first E∣state in tail, and also to the Fee, and then if the last fee be fortified, the mesne Remainder is established, and so the Release inures to himself.

The Son makes a Lease to the Father for life, who makes a Lease for life to A. the Remainder in fee simple to the Son, the Son grants a Rent Charge out of the Remainder, and after Re∣leases to A. and his Heirs all his Right in the Land, the Father and A. die, if his Issue shall hold it charged? first, it is cleer, that the Right Fee is dive∣sted, and a tortious Fee setled in the Son all at one Instant, as if Tenant in tail makes a Lease for life, the Inhe∣ritance

of the estate in tail is devested, and a fee simple vested all at one mo∣ment. So if the Husband makes a Lease for life of the Wives Land, the fee which the Husband had in right of his Wife is devested, and a new fee in him∣self in his own right vested at the same time. So in the first case; then when it is granted out of the Reversion, it is all one as if it had been granted out of the Remainder, because a Reversion and Remainder agree in substance, viz. Terra revertens; then when the Son released unto A. and his Heirs all his Right, that shall not inure as an En∣try and Feoffment, for A. was in by Title without Disseisin; then it does not give to him the Remainder; as if he had Released to him all his estate in the Land, or as if he had released all his Right, Habendum the Land in fee; for there the fee passes, but here he hath both the Right and the E∣state, and then a Release of the Right does not reach the Estate. Others are of opinion that the Right in fee can∣not drown in the Estate for life, and in the Remainder it cannot merge; for then in truth he releases to himself. But if a Fem Disseisoress make a Lease for life, and after marries with the Disseisee, who Releases to the Tenant

for life in Fee, the Fee will Merge in auter droit for the benefit of the Estate in Fee in Reversion, then if the Re∣lease do not perfect the Remainder, if the Grant of the Rent which is an Assent to the Remainder does so inse∣perably unite the Remainder, the Rent and the Right, so that the Right shall be drowned in the Estate for the preservation of the Rent? and some think it shall not; for if a Disseisee takes an Estate in Fee from him who hath the Land by descent, he agrees unto it; and yet if he dies seised, his Heir shall be remitted, and so the Rent charge avoided. But others think, that in as much as by the grant of the Rent charge he hath agreed to the Re∣mainder, and so to the Livery, he can∣not now enter upon the Tenant for life, and then the Release gives the Remainder, and so the Land continues charged.