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29 H. &
11 H. 7. 19.
31 Ed. 1. F. Q. Imp. 186. 14 Ed. 4. 2.
14 Ed. 4. 2.
19 H. & 11. 5 Ed. 4.&
But to return from our digression: on the other | he doth alter the disposition of law; for side, if I contract with you for cloth at such a by the law they shall take in copercena- Dy. 12. price as I. S. shall name; there if I. S. refuse to ry, but by the devise they shall take jointly; and name, the contract is void; but the parties cannot this is not any foreign collateral purpose, but in discharge it, because they have put it in the point of taking of estate. power of a third person to perfect.
So if a man make a feoffment in fee to the use So if I grant my reversion, though of his last will and testament, these words of this be an imperfect act before atturn- special limitation are void, and the law reserveth
ment; yet because the atturnment is the ancient use to the feoffor and his heirs; and the act of a stranger, this is not simply revocable, yet if the words might stand, then might it be aubut by a policy or circumstance in law, as by thority by his will to declare and appoint uses, levying a fine, or making a bargain and sale, or and then though it were knight's service land, he the like.
might dispose the whole. As if a man make a So if I present a clerk to the bishop, feoffment in fee, to the use of the will and testa
now can I not revoke this presentation, ment of a stranger, there the stranger may declare 34 €1. 3. 35. because I have put it out of myself, a use of the whole by his will, notwithstanding
that is, the bishop, by admission, to it be knight's service land; but the reason of the perfect my act begun.
principal case is, because uses before the statute The same difference appeareth in nominations of 27 H. 8. were to have been disposed by will, and elections; as if I enfeoff such a one as I. D. and therefore before that statute a use limited in shall name within a year, and I. D. name I. B. the form aforesaid, was but a frivolous limitation, yet before the feoffment, and within the year, I. in regard of the old use that the law reserved was D. may countermand his nomination, and rame deviseable; and the statute of 27 altereth not the again, because no interest passeth out of him. law, as to the creating and limiting of But if I enfeoff I. S. to the use of such a one as any use, and therefore after that statute, I. D. shall name within a year, then if I. D. name and before the statute of wills, when no land I. B. it is not revocable, because the use passeth could have been devised, yet was it a void limipresently by operation of law.
tation as before, and so continueth to this day. So in judicial acts the rule of the civil law But if I make a feofiment in fee to the use of holdeth sententia interlocutoria revocari potest, that my last will and testament, thereby to declare an is, that an order may be revoked, but a judgment estate tail and no greater estate, and after my cannot; and the reason is, because there is title death, and after such estate declared shall expire, of execution or bar given presently unto the party or in default of such declaration then to the use upon judgment, and so it is out of the judge to of I. S. and his heirs, this is a good limitation; revoke, in courts ordered by the common law. and I may by my will declare a use of
the whole land to a stranger, though it 6 Ed. 4. & REGULA XXI.
be held in knight's service, and yet I have an Clausula vel dispositio inutilis per presumptionem during life.
estate in fee simple by virtue of the old use remotam vel causam ex post facto non fulcitur.
So if I make a feoffment in fee to the Clausula vel disposilio inutilis are said when use of my right heirs, this is a void 20 11. && the act or the words do work or express no more limitation, and the use reserved by the Eliz. 237. than the law by intendment would have supplied ; law doth take place: and yet if the and therefore the doubling or iterating of that and limitation should be good the heir should come no more, which the conceit of law doth in a sort in by way of purchase, who otherwise cometh in prevent and preoccupate, is reputed nugation, and by descent; but this is but a circumstance which is not supported, and made of substance either by the law respecteth not, as was proved before. a foreign intendment of some purpose, in regard But if I make a feoffment in fee to the use of whereof it might be material, nor upon any cause my right heirs, and the right heirs of I. emerging afterwards, which may induce an ope- S. this is a good use, because I have Dy. ration of those idle words.
altered the disposition of law; neither is it void And therefore if a man demise land for a moiety, but both our right heirs when they at this day to his son and heir, this is come in being shall take by joint pur
a void devise, because the disposition chase; and he to whom the first falleth 30 E 1 Filz of law did cast the same upon the heir by descent; shall take the whole, subject nevertheand yet if it be knight's service land, and the less to his companion's title, so it have not de heir within age, if he take by the devise, he shall scended from the first heir to the heir of the heir: have two parts of the profits to his own use, and for a man cannot be joint-tenant claiming by purthe guardian shall have benefit but of the third ; chase, and the other by descent, because they be but if a man devise land to his two daughters, several titles. having no sons, then the devise is good, because So if a man having land on the part of his
19 R. 8. 11.
32 H. & (3. Dy.
10 EI. 274.
$? I. &
2 EA. 3. 28
4 M. 133. PL 6 Dyer.
30 Aes. & Fitz
mother make a feoifmentin fee to the use of himself This rule faileth where that the law saith as and his heirs, this use, though expressed, shall not much as the party, but upon foreign matter not go to him and the heirs of the part of his father pregnant and appearing upon the same act and
as a new purchase, no more than it conveyance, as if lessee for life be, and he lets
should have done if it had been a feofr- for twenty years, if he live so long; this limitament in fee nakedly without consideration, for tion (if he live so long) is no more than the law the intendment is remote. But if baron and feme saith, but it doth not appear upon the same conbe, and they join in a fine of the feme's land, and veyance or act, that this limitation is nugatory, express a use to the husband and wife and their but it is foreign matter in respect of the truth of heirs: this limitation shall give a joint estate by the state whence the lease is derived: and, thereintierties to them both, because the intendment fore, if lessee for life make a feoffment in fee, yet
of law would have conveyed the use to the state of the lease for years is not 168. 7. 4. 18 H. & II. the feme alone. And thus much touch- enlarged against the feoffee; otherwise be includes ing foreign intendments.
had it been if such limitation had not Fitz pl. 95. For matter ex post facto, if a lease for life be been, but that it had been left only to the law. made to two, and the survivor of them, and they So if tenant after possibility make a lease for after make partition: now these words (and the years, and the donor confirms to the lessee to survivor of them) should seein to carry purpose hold without impeachment of waste during the life as a limitation, that either of them should be of tenant in tail, this is no more than the law saith ; stated of his part for both their lives severally; but the privilege of tenant after possibility is fo
but yet the law at the first construeth reign matter, as to the lease and confirmation: and the words but words of dilating to de- therefore if tenant after possibility do surrender,
scribe a joint estate; and if one of them yet the lessee shall hold dispunishable of waste ; die after partition, there shall be no occupant, but otherwise had it been if no such confirination at his part shall revert.
all had been made. So if a man grant a rent charge out of ten acres, Also heed must be given that it be indeed the and grant further that the whole rent shall issue same thing which the law intendeth, and which out of every acre, and distress accordingly, and the party expresseth, and not like or resembling, afterwards the grantee purchase an acre: now and such as may stand both together : for if I let this clause should seem to be material to uphold land for life rendering a rent, and by my deed the rent; but yet nevertheless the law at first ac- warrant the same land, this warranty 20 Ed. 2. cepteth of these words but as words of explana- in law and warranty in deed are not the tion, and then notwithstanding the whole rent is same thing, but may both stand to- Zouch. 283. extinct.
gether. So if a gift in tail be made upon con- There remaineth yet a great question on this Hinde dition, that if tenant in tail die without rule.
issue, it shall be lawful for the donor A principal reason whereupon this rule is built, to enter; and the donee discontinue and die with- should seem to be, because such acts or clauses out issue; now this condition should seem ma- are thought to be but declaratory, and added upon terial to give him benefit of entry, but because it ignorance and ex consuetudine clericorum, upon did at the first limit the estate according to the observing of a common form, and not upon purlimitation of law, it worketh nothing upon this pose or meaning, and therefore whether by parmatter emergent afterward.
ticular and precise words a man may not control So if a gift in tail be made of lands the intendment of the law. held in knight's service with an express
To this I answer, that no precise or express reservation of the same service, whereby the land words will control this intendment of law; but is held over, and the gift is with warranty, and as the general words are void, because they say the land is evicted, and other land recovered in contrary to that the law saith; so are they which value against the donor, held in socage, now the are thought to be against the law: and therefore tenure which the law makes between the donor if I demise my land being knight's service tenure and donee shall be in socage, and not in knight's to my heir, and express my intention to be, that service, because the first reservation was accord- the one part should descend to him as the third ing to the owelty of service, which was no more appointed by statute, and the other he shall take than the law would have reserved.
by devise to his own use; yet this is void : for But if a gift in tail had been made of lands the law saith, he is in by descent of the whole, held in socage with a reservation of knight's ser- and I say he shall be in by devise, which is against vice tenure, and with warranty, then, because the the law. intendment of law is altered, the new land shall
But if I make a gift in tail, and say be held by the same service the last land was, upon condition, that if tenant in tail Lit. pl. 364. without any regard at all to the tenure paramount: discontinue and after die without issue, it shall and thus much of matter ex post facto.
be lawful for me to enter; this is a good clause
21 Ed. I.
4 E4. & Com 33.
7 H. &6
19 make a condition, because it is but in one case, and so in effect, that to pass without deed, which and doth not cross the law generally : for if the the law appointeth shall not pass but by deed. tenant in tail in that case be disseised, and a de- Therefore if a man give land to I. D. et I. S. et scent cast, and die without issue, I that am the hæredibus, and do not limit to whether of their conor shall not enter.
heirs, it shall not be supplied by averment to But if the clause had been provided, that if whether of them the intention was the inheritance tenant in tail discontinue, or suffer a descent, or should be limited. do any other fact whatsoever, that after his death So if a man give land in tail, though it be by without issue it shall be lawful for me to enter: will, the remainder in tail, and add a proviso in now this is a void condition, for it importeth a re- this manner: Provided that if he, or they, or any pugnancy to law; as if I would over-rule that of them do any, &c. according to the usual where the law saith I am put to my action, 1 clauses of perpetuities, it cannot be averred upon nevertheless will reserve to myself an entry. the ambiguities of the reference of this clause,
that the intent of the devisor was, that the reREGULA XXII.
straint should go only to him in the remainder, Non videtur consensum retinuisse si quis ex præ- tail in possession was meant to be at large.
and the heirs of his body; and that the tenant in scripto minantis aliquid immutavit.
Of these infinite cases might be put, for it ALTHOUGH choice and election be a badge of holdeth generally that all ambiguity of words by consent, yet if the first ground of the act be du- matter within the deed, and not out of the deed, resse, the law will not construe that the duresse shall be holpen by construction, or in some case doth determine, if the party duressed do make any by election, but never by averment, but rather motion or offer.
skall make the deed void for uncertainty. Therefore if a party menace me, except I make But if it be ambiguitas latens, then otherwise unto him a bond of forty pounds, and I tell him it is: as if I grant my manor of S. to 1. F. and that I will not do it, but I will make unto him a his heirs, here appeareth no ambiguity at all; but bond of twenty pounds, the law shall not expound if the truth be, that I have the manors both of this bond to be voluntary, but shall rather make South S. and North S. this ambiguity is matter construction that my mind and courage is not to in fact, and therefore shall be holpen by averenter into the greater bond for any menace, and ment, whether of them was that the party intendyet that I enter by compulsion notwithstanding ed should pass. into the lesser.
So if I set forth my land by quantity, then it But if I will draw any consideration to myself, shall be supplied by election, and not averment. as if I had said, I will enter into your bond of As if I grant ten acres of wood in sale, where' forty pounds, if you will deliver me that piece of have a hundred acres, whether I say it in my plate, now the duresse is discharged ; and yet if deed or no, that I grant out of my hundred acres, it had been moved from the duressor, who had yet here shall be an election in the grantee, which said at the first, You shall take this piece of ten he will take. plate, and make me a bond of forty pounds, now And the reason is plain, for the presumption of the gift of the plate had been good, and yet the the law is, where the thing is only nominated by bond shall be avoided by duresse.
quantity, that the parties had indifferent inten
tions which should be taken, and there being no REGULA XXIII.
cause to help the uncertainty by intention, it shall
be holpen by election. Ambiguitas verborum latens verificatione suppletur ;
But in the former case the difference holdeth, nam quod ex facto oritur ambiguum verificatione where it is expressed and where not ; for if I re facti tollitur.
cite, Whereas I am seised of the manor of North There be two sorts of ambiguities of words, S. and South S. I lease unto you uruum manerium the one is ambiguitas patens, and the other latens, de S. there it is clearly an election. So if I recite, Paten. is that which appears to be ambiguous Where I have two tenements in St. Dunstan’s, I upon the deed or instrument; latens is that which lease unto you unum tenementum, there it is an seemeth certain and without ambiguity, for any election, not averment of intention, except the thing that appeareth upon the deed or instrument; intent were of an election, which may be specialbut there is some collateral matter out of the deed ly averred. that breedeth the ambiguity.
Another sort of ambiguilas latens is correlatire Ambiguitas palens is never holpen by averment, unto these : for this ambiguity spoken of before, and the reason is, because the law will not couple is when one name and appellation doth denomiand mingle matter of specialty, which is of the nate divers things, and the second, when the same higher account, with matter of averment, which thing is called by divers names. is of inferior account in law ; for that were to As if I give lands to Christ-Church in Oxford, make all deeds hollow, and subject to averments, and the name of the corporation is Ecclesia Christ
in Universitate Oxford, this shall be holpen by As if three coparceners be, and one of them averment, because there appears no ambiguity in alien her purparty, the feoffee and one of the sisthe words: for this variance is matter in fact, but ters cannot join in a writ de part' facien- Vide 1 Ine'it. the averment shall not be of intention, because it da, because it behoveth the feoffee to doth stand with the words.
mention the statute in his writ. For in the case of equivocation the general intent includes both the special, and therefore stands
REGULA XXV. with the words: but so it is not in variance, and
Præsentia corporis tollit errorem nominis, et veritas therefore the averment must be of matter, that do
nominis tollit errorem demonstrationis. endure quantity, and not intention.
As to say, of the precinct of Oxford, and of There be three degrees of certainty. the University of Oxford, is one and the same, and
1. Presence. not to say that the intention of the parties was,
2. Name. that the grant should be to Christ-Church in that
3. Demonstration or reference. University of Oxford.
Whereof the presence the law holdeth of
greatest dignity, the name in the second degree, REGULA XXIV.
and the demonstration or reference in the lowest,
and always the error or falsity in the less worthy. Licita bene miscentur, formula nisi juris obstet.
And therefore if I give a horse to I. D. being The law giveth that favour to lawful acts, that present, and say unto him, I. S. take this, this is although they be executed by several authorities, a good gift, notwithstanding I call him by a yet the whole act is good.
wrong name: but so had it not been if I had deAs when tenant for life is the remainder in fee, livered him to a stranger to the use of I. S. where and they join in a livery by deed or without, this I meant I. D. is one good entire livery drawn from them both, So if I say unto I. S. Here I give you my ring and doth not inure to a surrender of a particular with the ruby, and deliver it with my hand, and estate, if it be without deed* or confirmation of the ring bear a diamond and no ruby, this is a those in the remainder, if it be by deed; but they good gift notwithstanding I name it amiss. are all parties to the livery.
So had it been if by word or writing, without So if tenant for life the remainder in fee be, and the delivery of the thing itself, I had given the they join in granting a rent, this is one solid rent ring with the ruby, although I had no such, but out of both their estates, and no double rent, or only one with a diamond, which I meant, yet it rent by confirmation.
would have passed. So if tenant in tail be at this day, and he make So if I by deed grant unto you, by general a lease for three lives, and his own, this is a good words, all the lands that the king hath passed
lease, and warranted by the statute of unto me by letters patents, dated 10 May, unto
32 H. VIII. and yet it is good in part this present indenture annexed, and the patent by the authority which tenant in tail hath by the annexed have date 10 July, yet if it be proved common law, that is for his own life, and in part that that was the true patent annexed, the preby the authority which he hath by the statute, sence of the patent maketh the error of the date that is, for the other three lives.
recited not material; yet if no patent had been So if a man, seised of lands deviseable by cus-annexed, and there had been also no other certom, and of other land held in knight's service, tainty given, but the reference of the patent, the and devise all his lands, this is a good devise of date whereof was misrecited, although I had all the land customary by the common law, and no other patent ever of the king, yet nothing of two parts of the other land by the statutes. would have passed.
So in the Star Chamber a sentence may be Like law is it, but more doubtful, where there good, grounded in part upon the authority given is not a presence, but a kind of representation, the court by the statute of 3 H. VII. and in which is less worthy than a presence, and yet part upon that ancient authority which the court more worthy than a name or reference. hath by the common law, and so upon several As if I covenant with my ward, that I will tencommissions.
der unto him no other marriage than the gentleButif there be any form which the law appointeth woman whose picture I delivered him, and that to be observed, which cannot agree with the di- picture hath about it ætatis suæ anno 16, and the versities of authorities, then this rule faileth. gentlewoman is seventeen years old; yet never
theless, if it can be proved that the picture was * Bemble cleerement le ley d’estre contrary in ambideux made for that gentlewoman, I may notwithstand. cases, car lou est sans fait est livery solement de cestui in le tem' et surr' de partic'
anterment serra forfeiture de son ing this mistaking, tender her well enough. estale, et lou est per fait, le livery passa solement de tenant, So if I grant you for life a way over my land, car il ad le frank tenement, vide accordant. Sn". Co, lib. 1. 76. according to a plot intended between vs. and
77. a Com. Plow. 59. A. 140. 2 11. 5. 7. 13 41.7. 14. 13 Ed. 4. 4. a. 27 U. 8. 13. M. 16. et 17. El. Dy. 339.
| after 1 grant unto you and your heirs a way aa
cording to the first plot intended, whereof a table / parcel is especially named, the falsity of the ad.
So if I grant unto you by general words the phi extra Aldgate (where the verity is extra Bish-
But if I grant tenementum meum quod vide it, quæ Now for the second part of this rule, touching perquisivi de R. C. in Dale, where the contrariadenie the name and the reference, for the explaining truth was T, C. and I have no other cover lenger thereof, it must be noted what things sound in tenements in D. but one, this grant is faul. demonstration or addition : as first in lands, the good, because that which soundeth in name greatest certainty is, where the land hath a name (namely, in Dale) is true, and that which soundproper, as, the manor of Dale, Granfield, &c. the ed in addition (viz. quod perquisivi, &c.) is only next is equal to that, when the land is set forth | false. by bounds and abuttals, as a close of pasture So if I grant prata mea in Sale continentia 10 bounding on the east part upon Emsden Wood, acras, and they contain indeed 20 acres, the whole on the south upon, &c. It is also a sufficient twenty pass. name to lay the general boundary, that is, some So if I grant all my lands, being parcels maplace of larger precinct, if there be no other land to nerii de D. in prædictis literis patentibus specificat", pass in the same precinct, as all my lands in and there be no letters patents, yet the grant is Dale, my tenement in St. Dunstan's parish, &c. good enough.
A farther sort of denomination is to name land The like reason holds in demonstrations of perby the attendancy they have to other lands more sons, that have been declared in demonstration of notorious, as parcel of my manor of D. belonging lands and places, the proper name of every one is to such a college lying upon Thames' Bank. in certainty worthiest: next are such appellations
All these things are notes found in denomina- as are fixed to his person, or at least of continution of lands, because they be signs to call, and ance, as, son of such a man, wife of such a hustherefore of property to signify and name a place : band; or addition of office, as, clerk of such a but these notes that sound only in demonstration court, &c.: and the third are actions or accidents, and addition, are such as are but transitory and | which sound no way in appellation or name, but accidental to the nature of the place.
only in circumstance, which are less worthy, As modo in tenura et occupatione of the proprie. although they may have a poor particular refertary, tenure or possessor is but a thing transitory ence to the intention of the grant. in respect of land ; Generatio venit, generatio mi. And therefore if an obligation be made to I. S. grat, terra autem manet in æternum.
filio et hæredi G. S. where indeed he is a bastard, So likewise matter of conveyance, title, or yet this obligation is good. instrument.
So if I grant land Episcopo nunc Londinensi qui As, quæ perquisivi de I. D. quæ descendebant à me erudivit in pueritia, this is a good grant, 1. N. patre meo, or, in prædicta indentura dismis- although he never instructed me. sionis, or, in prædictis literis patentibus specificat. But è converso, if I grant land to I. S. filio et
So likewise, continent per æstimationem 20 hæredi G. S. and it be true that he is son and heir acras, or if (per æstimationem) be left out, all is unto G. S. but his name is Thomas, this is a void one, for it is understood, and this matter of mea- grant. sure, although it seem local, yet it is indeed but Or if in the former grant it was the Bishop of opinion and observation of men.
Canterbury who taught me in my childhood, yet The distinction being made, the rule is to be shall it be good (as was said) to the Bishop of examined by it.
London, and not to the Bishop of Canterbury. Therefore if I grant my close called Dale, in
The same rule holdeth of denomination of times, the parish of Hurst, in the county of Southamp- which are such a day of the month, such a day lon, and the parish likewise extendeth into the
* Semble icy le grant ust este assets bon, come fait resolu county of Berkshire, and the whole close of Dale
per Cur', Co. lib. 3. fol. 10. a vide 33 H. 8. Dy. 50. b. 12 El. lieth in the county of Berkshire; yet because the ib. 292. b. et Co, lib. 2. fo. 33. a .