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EVery Subject of this Kingdom that oc∣cupieth any Lands, or inhabiteth in any House or Tene∣ment, is said to be a Tenant, Tenens a Tenendo; because he must hold of some Lord or o∣ther.
And divers and various are the na∣tures and kinds of Tenants and Te∣nures in this Land at this time; Al∣though
they have been more numer∣ous, and indeed excessive slavery to the people, so that their exhorbitant Cruelty hath caused their Dissolu∣tion.
Those which are ceased to be, are Tenure in Villenage, where the Lord might vassal and enslave his Tenants person at his pleasure, but not kill him.
Pillenage, where the Lord might pillage his Tenant of all his goods.
Frank-Almoigne, or free Almes, was a Tenure begun and had its ori∣ginal, either at or soon after the foundation of Monasteries and Re∣ligious Houses, and extripated with them. The nature of it in old time was, when a man being Seized of Lands or Tenements in his Demeasne as of Fee, of the same Land did en∣feoffe some Abbot or Prior and their Covents, or some Dean and Chapter and their Successors, or some Parson of a Church and his Succes∣sors, or any other Religious person who was in a Capacity to take such Alms, to hold the same Lands and Tenements to them and their Succes∣sors in Liberam Eleemosynam, in
Free-Alms, or Frank-Almoigne, of the grantor and his Heires: and such as held in Free-Alms were bound in consideration of such grant or Feoffment, to perform cer∣tain Divine and Religious Services and Exercises, for the Souls good, Life and Prosperity of the grantors and all others.
And they confirmed all their grants with grievous Anathema's and Imprecations against all such as should in any wise diminish or take away such their grant, or convert the same unto any other use; (which some justly believe to be none of the least Causes why Purchasers of Church-Lands find such ill success, as seldome to enjoy it to the fourth Generation.)
But, as I said before, this Tenure and the Religious Houses ended to∣gether, or immediately one after the other; So that none can grant any Lands or Tenements in Liberam Eleemosynam at this day.
Tenure in Capite and Knights-Ser∣vice is also by Act of Parliament in the twelfth Year of his now Majesties Reign, (together with the Court of
Wards which was dependent upo•• that Service,) taken away, and a•••• those Tenures are now turned into common Soccage.
So that the more usual Tenants a∣mongst us at this day are
Tenant in Fee-Simple, in Fee-Taile.
Tenant in Tail, after possibility of issue extinct.
Tenant in Dower, by the courtesie of England; Tenant for Term of Life, for years upon Lease, in writ∣ing, or Lease parol.
Tenant at will; by the common Law, or by custome.
Tenant by Coppy of Court-Roll.
Tenants in Coparcenery, Joynt-Tenants, and Tenants in common.
indeed Fee-Simple is the most pure holding that is, being unmixt or en∣tangled in it self. But as the whitest Colour will be soonest stained; so is this pure Tenure most subject to be spotted and involved in troubles a∣bove any other; Which the Law calls Incombrances.
If a man were to deal as purchaser with a Tenant in Fee-Simple, he hath a happy bargine if he meets with a Simple Tenure and a Simple Tenant; I mean, the one free from Incom∣brances, and the other from deceit: which many have found it a difficult thing to obtain.
I shall therefore by way of cauti∣on set down the several troubles and incombrances this pure and Simple Tenure, called Fee-Simple, is subject unto.
Fee-Simple may be incombred, with several Judgments, Statutes Merchant and of the Staple, Recog∣nizances, Mortgages, Wills, Pre∣contracts, Bargains and Sailes, Feoffments, Fines, Amerciaments, Joyntures, Dowers, and many o∣ther fraudulent Conveyances, if a knave once possesse it; and last of
all, may be quite forfeited for Trea∣son.
But Fee-Simple being free from a∣ny of the aforementioned incom∣brances, is the most free, absolute, and ample Estate of Inheritance that that any man can have; And there∣fore a Tenant in Fee-Simple, is said to be Seistus in Dominico suo, ut de feodo; that is, seized in his Demeasne as of Fee.
every one of them may (the Elder dying) come to inherit this Land, because every one is the issue ingen∣dred of his body.
It is the same case if Lands or Te∣nements be invested upon a Woman and the Heirs of her body, And she have several Husbands, and Children by them all, every one of them is in a possibility to inherit those Te∣nements, being all begotten of her body.
But where Lands or Tenements are setled upon a man and his wife, and the Heirs of their bodies be∣tween them two lawfully to be begot∣ten; this is Tenant in Special Tayle, because in this case none can inherit, but such Children as are by this man begotten upon the body of this wife named in the Grant: And if that wife dye, and the man taketh ano∣ther wife, and hath issue of her bo∣dy, the issue by the latter wife can∣not inherit by vertue of such a grant; And if the first husband dye, and the wife marry again and have issue by a second husband, that issue cannot inherit.
There be several other Estates
in Special Tail, according to the Devises, Limitations, and Conditi∣ons invented and setled by the Do∣nor; as sometimes to a man and his Wife and the Heirs Males of their bodies between them two to be be∣gotten; in this Case the Females cannot inherit.
So that if Lands be invested upon a man and his Heirs Males of his body, and he hath issue two Sons and dyeth, the eldest enters, according to the grant, and hath issue a Daughter and dyeth; this Daughter shall not inherit the Land, but the Brother, be∣cause he is the Heir Male.
And if a man hath Lands granted to him, and to his Heirs Males of his body; and he hath no Son, but on∣ly a Daughter, and the Daughter hath a Son and dyeth living her Fa∣ther, and after that the Donee dyeth; in this case the Donee dying without issue Male in the Law, the Son of his Daughter, which is his Grandchild, shall not inherit, but the entayle is ex∣tinct, and the Land shall Revert to the Donor.
These grants in Tail are the causes of much strife, and stir up many
chargeable suits, though in my judg∣ment they are useless: for the intent of the Donor is seldome observed in them, he intending to preserve the Memory of his own name to per∣petuity; which cannot be, since a Fine and Recovery will docke it.
When Lands and Tenements be granted to a Man and his Wife in special Tail, and one of them dye be∣fore they have issue, the Survivour is Tenant in Tail after possibility of issue extinct; but if they have issue, during the life of the issue the Sur∣vivour cannot be said to be tenant in Tail after possibility of issue extinct. But if the issue dye without issue, and leave none to inherit by vertue of the Entail, then the Surviving Do∣nee is tenant in Tail after possibi∣lity of issue extinct.
And none can be tenant in Tail af∣ter possibility of issue extinct, but one of the Donees in special Tail; which tenant in Tail after possibility of is∣sue extinct, is not chargeable with
committing of Wast, because the inheritance was once in him; but if he doth Allien in Fee, it is a forfeiture of his Estate, and the Heir in Rever∣sion may enter.
When a Man marries a Wife seiz∣ed in Fee-simple, or in general Fee. Tail, or one that is Heiress unto Lands or Tenements in Special, and hath a Child by the same Wife male or female born alive, and the Wife dye; whither the Child be living or dead, the Husband shall hold the same Lands during his Life, as Te∣nant by the Courtesie of England, which is a Tenure used in none other Country but in England: And al∣though the Child dye assoon as it is born, if it were but heard cry, the Husband shall hold the Lands after his Wifes decease during his Life as Tenant by the courtesie; the cry∣ing of the Child being a suffici∣ent Testimony of its being born a∣live.
This kind of Tenant is always of the Feminine gender; and is when a man is who seized of Lands or Te∣nements in Fee-Simple, or in general Tail, or as Heir in Special Tail, mar∣ries a Wife and dies; the Wife after the death of her Husband, shall have during Her life the third part of such Lands or Tenements as her Husband had during the Coverture, whether she had any issue by him or not, so she be above nine years of age at her Husbands death.
This is the Dower at the Com∣mon-Law; but by custome in many places it is otherwise: for in some places she shall have the half, and in o∣thers the whole; and in all these cases she is Tenant in Dower.
In Kent it is the custome, for the Woman to have half her Husbands Lands durante viduitate, so long as she continues a Widdow; but if she marry again she looses all: so like∣wise is the custome there, if a man marry a Wife having an Estate in Lands, &c. and she dye without is∣sue,
he shall have half while he re∣mains sole: but if he marry again he looseth all. And in Kent they say the reason thereof is, because they do not love that their Lands should help to maintain any Children but such as are of their own getting; but how sure they are hereof, Igno∣ramus.
He that holdeth Lands or Tene∣ments for the term of his own Life, or for term of the Life of any other person; In this case the Lessee ei∣ther for term of his own Life, or for anothers, is Tenant for term of Life; And this Tenant for Life hath in him the Freehold, this being the lowest degree of Freehold.
In a grant for term of Life, it is said to be from Lessor to Lessee. Note, there is Feoffer and Feaffee, Donor and Donee, Lessor and Lessee: so there is likewise Grantor and Grantee, Obligor and Obligee, Mort∣gagor and Mortgagee.
He that enfeoffeth another in Lands or Tenements, is called the
Feoffer; he to whom the feoffment is made, is the Feoffee.
So when a man giveth Lands or Tenements to another in tail, he is called the Donor; and he to whom the gift is made is the Donee.
And likewise he that letteth to a∣nother any Lands or Tenements to hold for term of Life, for Years, or at Will, is called the Lessor; and he to whom the Lease is made, is cal∣led Lessee: which Lessee for Life (as I said before) is tenant of Freehold. So also he that pawneth Lands to a∣nother is called Mortgagor, and he to whom it is pawned is called the Mortgagee.
Tenant for term of Years is, when a man demiseth, and letteth any lands or tenements to another to hold for a certain number of years agreed upon between the Lessor and the Les∣see; by force and vertue of which Lease, the Lessee entreth into the said tenements.
This Lease for term of years may be granted by word of mouth, and
this is called a Lease parol: which shall bind the Lessor so long as the term is accorded for, if the Wit∣nesses live to prove the Lease Pa∣rol.
But the more safe and usual way, is to take a Lease by Deed indented, which needs no other Execution but only sealing and delivered. For by vertue of that Lease, the tenant may enter whensoever he will.
But a Lease for term of Life must be executed by Livery and Seisin; because the freehold passeth with that Lease; which it cannot do without Livery and Seizin.
This was the Case of Allen and Waller at the Lent-Assizes at Maid∣stone 1654. Waller brought an E∣jectione firme against Allen; the De∣fendant proved a Lease Parol at a certain rent during his Life: which last word of the Defendants witness gave the verdict against him, because none can be tenant for Life, without Livery and Seizin.
Also if a man make a Lease to one for Years, the remainder to ano∣ther for Life, or in tail, or in Fee, here the Lessor ought to make Live∣ry
and Seizin to the Lessee for Years; or else nothing shall pass to him in remainder, though the Lessee enter and enjoy his term of Years; but the Free-hold and the Reversion remaines in the Lessor. But if the Lessor makes Livery and Seizin to the Lessee, then the Freehold passes over to them in the Reversion, ac∣cording to the grant.
Likewise if a man make a Lease of Lands or tenements to another for term of Years, and the Lessor dye before the Lessee enter into the tene∣ments; nevertheless he may enter, notwithstanding the death of the Les∣sor, because the Lessee hath right to the tenements by vertue of his Lease, immediately after the sealing and de∣livery of it.
But if the Lessee sow the Land, and the Lessor eject him out afterwards before the Corn be ripe, the Lesse•• shall nevertheless have his Crop, and shall have free Egress and Regress to cut and carry it away, because he knew not when the Lessor would en∣ter upon him.
But if a tenant for years sow his Land so near the end of his term, that his Lease expire before the Corn be ripe, he shall not come to reap it; but the Lessor or other who hath the Reversion shall have the Crop, because the Lessee knew certainly the end and determination of his term and Lease.
In like manner if a house be let to a man to hold at Will, and the Lessee enters the House, and bringeth in thither his Goods and Houshold∣stuff, and afterwards the Lessor e∣jects him out; here he shall have li∣berty of egress and regress, to fetch away his Houshould-stuff.
Also if one seized in Fee-Simple, Fee-tail, or for term of Life, in an House, and hath Goods in that House, and makes his Will, appoint∣ing his Executors, and dies; now to
whosoever the house descends, the Executors shall have liberty in some reasonable time to enter and carry away the goods.
And if a man by Deed of Feoff∣ment grants certain Lands to ano∣ther, and delivers him the Deed, but executes it not by Livery and Seizin; the Feoffee in this case may enter that Land, and hold it at the will of the Feoffer; but the Feoffer may eject him out again when he will.
If a man dwell in a House as te∣nant at will, he is not bound to re∣pair the said house, as a tenant for term of years is bound to do.
But if a tenant at will shall commit voluntary wast, as to pull down Houses, and Cut, Grub, Fell, or de∣stroy Trees, the Lessor may bring his Action of trespass against him for so doing; and the Lessor upon a Lease at Will, if he hath reserved a yearly rent, may either distreyne, or bring an Action of debt for the same, if it be in Arreare, which he pleases.
This is a very ancient tenure, and depends only upon custome; and there are so many and various kinds of customes in Coppy-holds in seve∣ral Mannors and Countries, that it would take up a large Volumn to discourse of them all; which is not now our present Intention; but we shall refer that Subject to a further opportunity, and here shortly in ge∣neral terms set forth the nature of a tenant by Coppy of Court-Roll. In a Mannor wherein there is a Cu∣stome, and hath been so used time out of mind (for nothing can be a Custome, unless it be Tempore quo non extat Memoria, time out of mind,) that certain tenants within the said Mannor, have used to have Lands or tenements, to hold to them and their Heirs in Fee-Simple or Fee∣tail, or for term of life, or upon any other condition, at the Will of the Lord after the custome of the same Mannor; such tenants are cal∣led Coppy-holders; that is, tenants by Coppy of Court-Roll: for a
Coppy of the Court-Roll is all the evidence they have for their estates in the said Lands.
Now a tenant by Coppy of Court-Roll, may not alien his estate by Deed; for if he do, it is a forfeiture to the Lord, and the Lord may en∣ter, and take the forfeit.
But if any tenant by Coppy of Court-Roll, will alien his Lands, he may do it by a surrender into the hands of the Lord, to the use of him that shall have it; and any kind of estate that a Free-holder can make of his Land by Deed, a Coppy∣holder may do the same by surren∣der.
The tenant by Coppy of Court-Roll is also bound by the custome to repair his houses; and if he suffer any tenement or house to fall down for want of repair, or if he pull it down, he forfeits his Coppyhold to the Lord of the Manner.
Secondly, It must be certain.
Thirdly, It must be according t•• Common Right.
Fourthly, It must be on good con∣sideration.
Fifthly, It must be Compulso∣ry.
Sixthly, It must be without pre∣judice to the King.
Seventhly, It must be to his profit that claimeth the same.
Ʋser, Is when according to time and occasion a Custome is used.
Non user, Is when, for want of time and occasion, or through neg∣ligence, or forgetfulness, a custom is not used.
Abuser, Is when Custom is ill u∣sed; for as User doth nourish Cu∣stom, so doth Abuser destroy a Cu∣stom.
Interuser is in some cases, where a Custom may be used in one sort, and ••ometimes in another, and yet a good Custom, if there be good Consider∣••tions for the Exchanging thereof at ••imes.
If the Lord have used at the Ad∣••ission of his Coppy-hold tenants ••ometimes to take for a Fine two ••ence, or sometimes four pence for ••n Acre, sometimes twelve pence an Acre; this User is so uncertain; that •••• makes the Fines Arbitrable at the Lords will.
If the Lord of a Mannor have used ••ime out of mind to admit his Cop∣py-hold tenants without Fine, this Usage shall bind the Lord as well as a Fine certain.
If the Lord have used to have cer∣tain Work-dayes of his tenants; And that hath not been used by the space of twenty years last past: yet ••hat Non User is no discharge to the ••enants, so that there be any alive that can remember the same.
If the tenants have used when they Sow their Lands to pay the Lord Rent-Corn, and when it lyeth in Pa∣sture to pay their Rents in money, this is a good Interuser.
If the tenants have used to pay•• their Lord every fourth year a dou∣ble Rent, and every sixth year an half Rent, this is a good Interu∣ser.
If the tenants have used to have Common of Pasture in their Lords Woods for their Horse-Cattel, and they put in their Neate-Cattel and destroy the Woods, this is an abuser; But it is but fineable and no forfei∣ture of the Common, no more than if they have Common for a certain number of Beasts in the Lords Soyl, and they exceed the number; this a∣buse by the Surchargeing, is only fineable and no forfeiture.
If a man have a Faire to be used two dayes, and he keeps it three dayes, this abuse is a forfeiture.
Every good Custom is grounded upon good Reason, and that shall be said in reason a good Custom, that in reason is a good Law; for Law and Custom be of that affinity, as both do allow like Reason, and both do forbid like Inconveniencies; And the final effect of both is to discusse and to discern every mans true right, and to give to every man that which
is his own; for although Custom in ••ome cases differ from Law, and ••oth admit Execution of some Acts without some Ceremonies required ••y the Law; yet the end and effect ••f Custom is to maintain the like ••eason, and avoid the like incoveni∣••ncies as the Laws doth.
If the tenants of a Manner will ••rescribe to hold without paying any ••ents, or Services for their Coppy∣••olds, this is no good Custom. But ••o prescribe to hold by Fealty for all ••anner of Services is good and rea∣••••nable.
If a Lord will prescribe never to ••old a Court but when it pleaseth ••imself, this is not good; But to ••rescribe never to hold a Court for ••••e special good of any one tenant, ••••cept the same tenant will pay him a ••ine for the same; that is good and ••easonable.
If a Coppy-holder surrender his and to the use of a Stranger, in con∣••••deration that the same Stranger ••••all Marry his Daughter before ••••ch a day; if the Marriage succeeds ••ot, the Stranger takes no benefit by ••••e surrender. But if the surrender
be in consideration, that the Strange•• shall pay such a Sum of money a•• such a day; though the money b•• not paid, yet the surrender standet•• good. Many Customs there are which at the beginning were volun∣tary; and now by continuance ar•• grown Compulsary: Quae initi•• fuerunt voluntatis ex post facto fue∣runt necessitatis; Sayeth the Civ•••• Law; which also in many Cas•• doth agree with the Common Law.
There are two kinds of tenants i•• Coparcenery; that is, Parceners a•• the Common Law, and Parceners b•• custome.
After the course of the Commo•• Law, when a Man or Woman seized in Lands or tenements in Fe•••• Simple, or Fee-tail, and hath no o∣ther issue but Daughters, and dyeth the tenements descend to the Daugh∣ters equally as Co-heirs; and the•• shall enjoy every one an equal par•• thereof, as tenents in Parcenery, o•• Copartnership, and are all as it wer••
••ne Heir to their Ancestor; And ••••ese Coheirs or parceners may have Writ called Breve de participati∣••••e facienda, to have the Lands e∣••ually divided and shared amongst ••hem.
If a man seized of Lands dye with∣••ut issue, and the tenements descend •••• his Sisters; or if he hath no Si∣••ers, and it descends to his Aunts: ••••ey be Coheirs or parceners as a∣••resaid.
If there be two parceners, one ••arries and hath issue and dyeth, and ••fterwards her Husband holdeth one ••alf, as tenant by the Courtesie; ••he Coheir or parcener that survi∣••eth, and the tenant by the Courte∣••e, may make partition between ••••em; And if the tenant by the ••ourtesie will not consent there un∣••••, the Surviving parcener may com∣••el him by a writ de Participatione ••••cienda.
But if the tenant by the Courtesie ••••sires to have partition, and the ••••rceners surviving will not agree to 〈◊〉〈◊〉; the tenant by the Courtesie can ••ave no remedy: for he cannot ••ave a writ de Participatione facienda
against the surviving parcener, al∣though the parcener may have it a∣gainst him.
This Tenure is Gavel-kind, and i•• used only in Kent, except in some certain places in England besides and in North Wales. But the me•• of Kent only claim this as a right re∣maining unto them unconquered and it is thus: If a man be seized in Fee-Simple or Fee-Tail in Lands o•• tenements of the Custom and Tenur•• of Gavel-kind, and hath issue diver•• Sons and dyeth; All the Sons shall be Coheirs, and equally inherit those Lands and tenements as Females do and may make partition by writ d•• Participatione facienda, and divide as in the case of Daughters at the common Law.
and their Heirs; or to hold to them∣selves, for the term of their lives, or for anothers life, and they become seized by vertue of that Feoff∣ment; these are said to be Joynt-Te∣nants.
Likewise if two or more disseize another of any Lands or Tenements, to their own use, the disseizors be Joynts-tenants; but if it be but to the use of one of them, they be not Joynt-tenants.
Now the nature of Joynt tenants is, that the whole estate shall go to the Survivour.
As, if there be Joynt-tenants in Fee-Simple, and the one of them hath issue and dyeth, the two that survive shall have the whole Tenements, and nothing thereof shall go to the issue of him that is dead: And if the se∣cond tenant have issue and dye, the third who is the Survivour shall en∣joy the whole, and shall have it in Fee-Simple to him and his Heirs.
But now there is a difference in tenants in Parcenery: for if there be three Copartners, and one hath issue and dyeth before there be any parti∣tion made, that part which belonged
to her that is deceased, shall descend to her issue. And if such a Parcener dye without issue, her part shall de∣scend to her Coheirs: so that this they have by discent, and not by Survivourship as Joynt-Tenants have.
And as the Survivourship taketh place amongst Joynt-tenants, so it doth amongst all persons who have Joynt Estate, or possession with others in Chattels Real or Perso∣nal.
As, if a Lease be made to several persons for term of years, the Survi∣vour of the Lessees shall enjoy all the Tenements during the term by ver∣tue of the Lease.
And in like manner Goods and Chattels personal, whereof there be partners, shall go to the Survivour. And if a Bond be made to many per∣sons for one Debt, and some of the Obligees dye, the Survivour shall have all the Debt: And so it is in all Covenants and Contracts amongst Partners.
There may also be Joynt-tenants for term of life, and yet they have se∣veral Inheritances.
If Lands be given to two men to hold to them for term of their lives, and to the Heirs of their two bodies, here these Donees are Joynt-tenants for term of their lives, and have se∣veral Inheritances: For if one of them have issue and dye, the Survi∣vour shall enjoy the whole during his life by Survivourship. And if the Survivour have also issue and dye, then the issue of them both shall en∣joy the estate equally between them, as tenants in common, and not Joynt∣tenants.
Now the reason why these are said to have several Inheritances, is because it is impossible for them to have an Heir between them, as a Man and a Woman may have.
Therefore the Law maketh this distinction according to reason and the form of the gift; that is, to the Heirs that one getteth on the body of his Wife; and so likewise of the o∣ther: so that by this reason it must of necessity be, that they have several inheritances.
And if after the death of the Do∣nees, the issue of one of the Donees
dye also, leaving no issue of his body Surviving, in this case the Donor or his Heirs may enter into the moyety of the Lands, as in his reversion, though the other of the Donees hath issue living.
In like manner if Lands be given to two Females and to the Heirs of one of them; in this case, the one of them; that is, she that hath it but for life, hath a freehold, and the other hath a Fee-Simple: and if she that hath the Fee dye, the other who hath the Free-hold shall enjoy the whole dur∣ing her life by vertue of her Survi∣vourship.
And if Tenements be given to two, and to the Heirs to be ingendred of the body of one of them; here the one hath Free-hold, and the other Fee-Tail.
If there be two Joynt-tenants, and they are seized of an Estate in Fee-Simple, and the one by Deed grants a Rent-charge to another out of that part which appertaines to him; now during the life of the grantor, this Rent-charge is good and effectu∣al, but it becomes void after the death of the Grantor. For the
Tenant that Surviveth shall hold all the Land by Survivourship, dis∣charged from the Rent-charge of the other.
But amongst Coheirs or Parceners it is otherwise: for if there be two Parceners in Tenements in Fee-Sim∣ple, and before partition one charg∣eth his part by his deed with a Rent∣charge, and dyeth leaving no issue, whereby his moyety descends to the other Partners; here that part shall not be freed of the Rent-charge, be∣cause he cometh to this moyety by discent as Heir at Law.
If Joynt-tenants be desirous to make partition between them, they may do it by consent and agreement amongst themselves; and such par∣tition is good and binding against each other: but unless it be done by mutual consent amongst themselves, the Law cannot enforce or com∣pel them, or either of them to do it; because Joynt-Tenants cannot have a writ de Participatione facien∣da, as tenants in Copartnership may have.
If there be a joynt Estate of Lands and Tenements made to a man and
his wife, and to a third Person, her the third Person shall have as much as the man and his wise; that is, one mo••∣ety: for the man and wife can have but half the estate, because they ar•• but one person in Law.
In like manner it is if Land were made to a man and his wife and to two others; here the man and wife can have but a third part and the two others the other two parts.
Such as have Lands and Tenements by several title, and not joynt title, and none of them knoweth what is several to him, whether it be in Fee-Simple, Fee-Tail, or for term of life; these are said to be tenants in Common, because they ought by the Law to hold, enjoy and occupy such Lands and Tenements in common and undivided, and to take the pro∣fits in common; and do come to the same Lands and Tenements by se∣veral titles, and not by one joynt title.
If a man enfeoff two Joynt-te∣nants
in Fee, and one of them Aliens his part to another in Fee; this Alienee and the other Joynt-tenant be Tenants in common, because they now stand seized by several titles; the one Joynt-tenant by vertue of the first Feoffment made to him; and the other Joynt-tenant, and the Alien be comes seized in his moyety by vertue of the Feoffment of the other Joynt∣tenant; so that the several Feoffments make their titles several, whereby they become Tenants in common.
If there be three Joynt-tenants, and one of them aliens his part to ano∣ther person in Fee, here the Alience is Tenant in Common with the other two Joynt-tenants, and of the o∣ther two parts, the two Joynt-te∣nants be seized joyntly, and the Sur∣vivour of them shall have the whole of those two parts by vertue of Sur∣vivourship.
If there be two Joynt-tenants in Fee, and one of them gives his part to another in tail, here the Donce, and the other Joynt-tenant become te∣nants in Common.
Also if Lands be given to two men, and to the Heirs of their two
bodies, in this case these Donee•• have a Joynt-Estate during their lives; and if both of them hav•• issue and dye, both their issue shall hold the Land as Tenants in Com∣mon.
If Lands be given to two men and their Heirs to hold to eac•• a moyety, these are Tenants in Com∣mon.
If a man being seized in certain Lands doth enfe off another in th•• half of it without limiting of the sam•• half in severalty at the time of the Feoffment made; that is, do not di∣stinguish that half from the other by particular bounds and limits; In thi•• case the Feoffer and the Feoffee shal•• hold their parts of those Lands in Common.
And as it is amongst Tenants in Common in Lands or Tnements in Fee-Simple or Fee-Tail, in the same nature it is also between tenants for term of life: as, if there be two Joynt-tenants seiz'd in Fee, and one of them lets to a man his part for term of his life, and the other Joynt∣tenant lets to another man his part for term of life; these two Lessees be
tenants in Common for the term of their lives.
Likewise if a man lets Lands unto two persons for the term of their ••ives, and the one of them grants all ••is Estate of the part belonging unto him unto a third person; then this third person to whom this grant is made, and the other Tenant for term of life, be both tenants in Com∣mon, during the lives of both the Les∣sees.
If there be three Joynt-tenants, and one of them releaseth all his right which he hath in the Land by his Deed to one of his fellows, then he to whom the release is made, hath the third part of the Lands by ver∣tue of that release, and shall hold that third part with himself and his fellow in Common, and they two shall hold the other two parts joyntly.
Also if a joynt-estate be made un∣to a man and his wife, and to a third person, and that third person, re∣leaseth his right which he hath in that estate to the Husband; then the Hus∣band hath the third persons moyety, and the wife hath nothing therein at all.
And if such third person relea•• his right in his moyety to the wise not naming her Husband in the re∣lease; then the Wife hath the thir•• persons moyety, and the Husband hath nothing at all in it, but only Jure uxoris, in the right of hi•• Wife: because the release shall wor•• to invest the Estate in the person to whom the release is made, of all that appertained to him that made such release.
There may be also Tenants in Com∣mon by title of Prescription; that is, when two have holden Lands in Common undivided; the one, one half from his Ancestors; and the o∣ther, the other, the other half from his An∣cestors, or from whom the Estate is derived unto them undivided, time whereof the memory of man hath not known the contrary; these are Tenants in Common, by title of pre∣scription.
Now these Tenants in Common ought in some cases to have for the maintenance of their possession seve∣ral Acti••••s; And in some cases they ••••all all joyn in one Action: for if their be two Tenants in Com∣mon,
and they be disseized, they two cannot bring against the disseizor one Assize in both their names, but they must have against him two As∣sizes: for every of them ought to have an Assize of his half, because the Tenants in Common are seized by several titles.
But amongst Joynt-tenants it is o∣therwise, for if their be never so ma∣ny of them, and they be disseized, they shall have but one Assize in all their names, because they have all but one joynt-title.
There is likewise a difference in suing real Actions between Partners that be in divers descents, and Te∣nants in Common. For if a man who is seized in Lands in Fee dieth, leav∣ing only two Daughters his Coheirs, and these two Daughters enter, and have each of them a Son, and dye without making any partition be∣tween them, so that the Lands de∣scend equally to their two Sons, the one moyety to one of them, and the other unto the other, and they enter and enjoy the same in Common, and be disseized; they shall not in this case bring two Assizes, but one As∣size
in both their names: for though they came in by divers discents, yet they be Parceners, and a writ de Participatione facienda lyeth between them. Nevertheless, they be not Parceners by reason of the seizin and possession which they have from their Mothers, but in respect to their Estate which descended to their Mothers from their Grand-fa∣ther.
And so in respect and considerati∣on of their first descent that was to their Mothers, they have a title in Parcenery which maketh them Par∣ceners; and they be but as one Heir to their common Ancestor their Grand∣father, from whom the Land descen∣ded to their Mothers. And therefore before partition made between them, they should have but one Assize, though they came in by several dis∣cents.
And likewise in personal Actions, in Trespass, and such like cases which concern their Tenements in Com∣mon, the Tenants in Common ought to bring such personal Actions joyntly in all their names; as for breaking their Houses, Closes, or
Pastures; wasting, treading down, or otherwise spoiling their Grass; cutting or felling of their Woods, spoiling their Fruit-trees, fishing in their Ponds, and such like. In these and all such kind of actions wherein they are joyntly concerned, the Te∣nants in Common shall have one joynt Action, and recover damages joyntly.
Likewise if two Tenants in Com∣mon make a Lease of their two Te∣nements to another for term of years, reserving unto themselves a certain yearly Rent; if the Rent be in Arrear, they shall have one Acti∣on of Debt for the Rent against the Lessee in both their names, and not divers Actions.
If two persons or more, have Chattels real or personal in Com∣mon and by divers titles, if one of them dye, the other who Survive, shall not have his part that is dead in those Chattels by Survivourship, but the Executors of him that dyeth shall hold and enjoy his part with them that Survive, as the Testator did or ought to have done in his life-time.
If two persons have an estate in
common for term of years, and on of them puts the other out of hi•• possession, and enjoyes all himself then he that is so put out of possessi∣on, may bring his Ejectment against the other for his moyety.
But if two persons be possessed of Chattels personal in Common by di∣vers titles, as of an Horse, or an Ox, or a Cow, or the like, and one of them takes it into his own possession, from the other; now the other hath no remedy, but to take this from him that hath done him the injury again, to occupy in Common, when he hath an opportunity; that is, in plain terms, he may come by it as well as he can.
The kinds of Tenants and Te∣nures.
Villen∣age.
Pillen∣age.
Free-Alms.
Knight-Service.
Fee-Sim∣ple.
Fee-Tail.
Dower, Courtesie, Term of life, for years. At Will.
Coppy.
Coparce∣nery.
Fee-Sim∣ple.
Incom∣brances of Fee-Sim∣ple.
Fee-Tail.
General Tail.
Special Tail.
Special tail with limitation.
Tail Te∣nures In∣cumbran∣ces.
Possibility of Issue extinct.
Donee in special Tail.
Tenant by the cour∣tesie.
Tenant in Dower.
Dower at Common-Law.
Dower by the Cu∣stom.
Lessor and Lessee.
Feoffer and 〈◊〉〈◊〉.
Donor & Donec.
Grantor and Gran∣tee.
Mortga∣gor and Mortga∣gee.
Tenant for years.
Livery & Seizin in Lease for Life.
Lease for Years takes right af∣ter the delivery.
Tenant at Will.
He that sows shall Reap if Tenant at Will.
Not so in Tenants for years.
Tenant at W••ll not bound to repai••s.
Tenant by Coppy of Court-Roll.
Coppy hol∣der can∣not alien by Deed.
2 Ed 4. 24. 13 Ed. 3. 4. 42 Ed. 3. 4.
5 H. 7. 9. 42 Ed 3. 3 H. 6 13 31 Ed 3. Prescript 1. 22.
Fine at the Lords will.
Admission without Fine.
Work of Tenants.
Interuser for Rent.
Idem.
Aluser by Cattle.
Forfei∣ture.
Customs must be reasona∣ble.
Tenants in Coper∣cenery.
Partners by Custom.
Joynt-Te∣nants.
Disseizor••
Survi∣vour.
Survi∣vourship.
Several Inherit∣ances.
Differ∣ence be∣tween Co∣heirs and Copart∣ners.
Ten••nts in Common.
Differ∣ence be∣tween Te∣nants for Life and in Com∣mon.
〈◊〉〈◊〉 in C••m∣m••nly P••••scrip∣tion.
Tenants by divers Descents.
Tenants in Com∣mon by di∣vers Ti∣tles.