*279 a.

(Ante, 266 a) 38 E. 3. 16. 24 H. 8. Restore

al primer Action, 5. Vid. seet. 447.

knowledge for a man that hath divers remedies to choose his aptest remedy; as in this case, if he bring his writ of right, the disseisor shall be barred, but if he had entered upon the heir of the alienee, he should have enjoyed the land for ever. For, in that case, the heir of the alienee after such an entry shall never have a writ of right, no more than if the disseisee entereth upon the heir of the disseisor, and make a feoffment in fee, if the heir of the disseisor re-enter h shail detain the land for ever, and the feoffee shall not maintain any writ of right; for a bare right shall never be left in the feoffee, but

With respect to the statute of Westminster 2, mentioned by Littleton, it has been stated, that, at common law, if a man were tenant for life, with remainders over, and a stranger, by a feigned action, recovered against the tenant for life, the remainder-man had no remedy, till it was supplied by this statute.

Further remedy was provided for them, by the statute 32 Hen. 3. c. 31. which enacted, that all common recoveries suffered by tenant for life, without the consent of the persons in remainder or reversion, should be totally void.

To avoid the effect of this statute, the tenant for life sometimes made a lease for years; the lessee then made a feoffment, and a præcipe was brought against the feoffee, and he vouched the te nant for life. It was held that, as the tenant for life was disseised by the feoffment of his lessee for years, he was not the actual tenant for life, or seised of the actual freehold when the recovery was suffered; and did not, therefore, fall within the terms of the Statute of Hen. 8. To bring such cases within the intended remedy, the statute of 14 Eliz. c. 8. was passed; which enacted that recoveries prosecuted against tenants for life, or in tail, after pos sibility of issue extinct, or against any other with the voucher of the particular tenant, should be void against all persons in remainder or reversion; with a proviso, that nothing in the act should extend to recoveries by good title, or to recoveries by assunt and agreement of the persons in remainder or reversion, so that such assent and agreement appeared of record in any of her ma jesty's courts: and the statute of 32 Hen. 8. was repealed. In consequence of the last proviso in the statute, a tenant for life may now join with the person in remainder or reversion, in suffering a common recovery. This was first settled in Wiseman v. Crow, Eliz. 562; and is every day's practice.

It sometimes happens, that a tenant in tail supposing himself seived in fee, executes a settlement, and takes an estate for life under it: a question has been made, whether such a tenant for life is prevented from suffering a recovery by the statutes cited. It seems to be clear, that he is not; as all the deeds must be considered as forming one conveyance, and as referring back to the original conveyance, executed by the party when he was actually tenant in tail; so that the recovery and the deed leading the uses of it. operates merely by way of further assurance.-[Butter, Note, 244.]

shall ever follow the possession, as hath been said (z 1): but if the disseisee entereth upon the heir of the disseisor, and make a feo ffment in fee upon condition, and entereth for the condition broken before the heir of the disseisor enter, he is restored to his right again (A 2).

A man maketh a gift in tail, the remainder in fee, tenant in tail dieth without issue, an estranger intrude, and he in the remainder brings a formedon, and recovereth by fault, and maketh a feoffment in fee, the intruder reverse the recovery in a writ of deceit, and entereth, he shall detain the land for ever, and the feoffee shall not have a writ of right (B 2).

And so likewise if a disseisor die seised, and a stranger abate, and the disseisee release to him, the heir of the disseisor shall enter and detain the land for ever. For the right to the possession shall draw the right of the land to it, and shall not leave a right in him to whom the release is made, as hath been said before in the 447th Section (c 2).

9 H. 7. 24.

(481)*

9 H. 7. 24.

139.231. 269. 440.

"It should be inconvenient." Here again, as hath Vid. sect. 87. 139%, been often observed, an argument ab inconvenienti is 722. forcible in law; and that judges, by the authority of our author, are to judge of inconveniences as of things unlawful, as hereby and by many other places it appeareth (D 2).

"A right cannot die." Dormit aliquando jus, moritur nunquam. For of such an high estimation is right. in the eye of the law, as the law preserveth it from death and destruction: trodden down it may be, but never

(Z 1) See supra, 266 a. p. 477. and n. (R 1) there.-[F.d.] (A 2) Supra, 266 a. p. 478. and n. ( X 1) there [Ed.]

(B 2) For, the recovery being reversed, all estates subsequent to it are defeated, and the intruder is restored to the land in such plight as if there had been no recovery at all; and the feoffee cannot maintain an action on the naked right of his feoffor. Hawk. Abr. 374.-[Ed.]

(C2) Supra, 266 a. p. 476-478. and see the notes there.-[Ed. (D2) See ante, 66 a. vol. 1. p. 18. n. [10].-[Ed.}

*279 b.

14 H. 3. 6 b.

(482)*

LITTLETON.

trodden out. For where it hath been said, that a release of right doth in some cases enure by way of extinguishment; it is so to be understood, either (as Littleton doth here) in respect of him that makes the release, or in respect that by construction of law it enureth not alone to him to whom it is made, but to others also, who be es trangers to the release, which, as hath been said, is a quality of an inherit nce extinguished.

As if there be lord and tenant, and the tenant maketh a lease for life, the remainder in fee, if the lord release to the tenant for life, the rent is wholly extinguished, and he in the remainder shall take benefit thereof; even so when the heir of a disseisor is disseised, and the disseisor make a lease for life, the remainder in fee, if the first disseisee release to the tenant for life, this is said to enure by way of extinguishment, for that it shall enure. to him in the remainder. who is a stranger to the release; and yet in truth the right is not extinct, but doth follow the possession, viz. the tenant for life hath it during his time, and he in the remainder to him and to his heirs, and the right of the inheritance is in him in the remainder for a right to land cannot die or be extinct in deed; and therefore, if, after the death of tenant for life, the heir of the disseisor bring a writ of right against him in the remainder, and he join the mise upon the mere right, it shall be found for him, because in judgment of law he hath by the said relcase the right of the first disseisee.

:

BUT releases which enure by way of extinguishment [Sect. 479.279 b.](1) against all persons, are where he, to whom the release is made, cannot have that which to him is released As if there be lord and tenant, and 'he lord release to the tenant all the right which he hath in the seignory, or all the right which he hath in the land, &c. this release goeth by way of extinguishment

[1] Here Littleton returns to releases by extinguishment, see post. [Butler

268 a.

against all persons, because that the tenant cannot have (49) service to receive of himself.

IN the same manner is it of a release made to the

"

LITTLETON.

tenant of the land of a rent-charge or common of [Sect.480.279 b.] pasture, &c. because the tenant cannot have that which to him is released, &c. so such releases shall enure (50) by way of extinguishment in all ways.

ALSO, to prove that the grand assise ought to pass

LITTLETON.

for the demandant, in the case aforesaid, I have often [Sect. 481.280 a.] (1) heard the reading of the statute of West. 2.

(which is the third chapter) which begun thus: In casu [COKE, 280 b.] quo vir amiserit per defaltam tenementum quod fuit jus uxoris suæ, &c. that at the common law before (52) the. said statute, if a lease were made (53) to a *man for

*

term of life, the remainder over in fee, and a stranger..

(483)*

by feigned action (feint is a participle of the French [COKE, 280 b.] word feindre, which is to feign or falsely pretend, so as a feint action is a false action) recovered against the tenant for life by default, and after (5) the tenant dieth, he in the remainder had no remedy before the statute, because he had not any possession of the land.

"The remainder over in fee." Here is to be observed, that although the statute speaketh of a reversion (0), yet, by the authority of Littleton, a remainder is within

280 b.

(0) 24 E. 3. 35. Entrie 74. 3 E. 2.

28 E. 3.96. 18 E 2.

Entrie 7. 6 E. 3. 24.
7 E. 3. Entrie 62.
7 E. 3. 54, 55,

15 E. 4. 15. F. N. B1
217 d. Register 241.

[F2] By the common law, if a præcipe had been brought against a

() W. 2. cap. 5.

Vid. 34 E. 3. Formeden 31. 11 E. 3.

Itid. 31.

F N. B. 217 d.

7 H. 7. 13.

(p) "Had no remedy before the statute." Here it appeareth by Littleton, that if a man maketh a lease for 8 E. 3. 59. life, the remainder in fée, and tenant for life suffereth a recovery by default, that he in the remainder should not have a formedon by the common law; for Littleton saith, that he hath not any remedy before the statute. Neither is there any such writ in that case in the Register, albeit in some books mention is made of such a writ.

(484) 2-0 a. (2 Inst. 345.)

*280 b.

I have often heard the reading of the statute of West. 2." Here it is to be observed, of what authority ancient lectures or readings upon statutes were, for that they had five excellent qualities. First, they declared what the common law was before the making of the statute, as here it appeareth. Secondly, they opened the true sense and meaning of the statute. Thirdly, their cases were brief, having at the most one point at the common law and another upon the statute. Fourthly, plain and perspicuous, for then the honour of the reader was to excel others in authorities, arguments, and reasons, for proof of his opinion, and for confutation of the objections against it. Fifthly, they read, to suppress

tenant for life, and a recovery suffered, it would have barred the persons in remainder; but this being justly considered as a grievance, a remedy was given by the statute of Westm. 2. c. 3. Further remedy was provided by the statute 32 H. 8. c. 31. which enacted, that all common recoveries suffered by tenants for life, without the consent of the persons in remainder or reversion, should be totally void. If, a ter this act, ■ tenant for life had made a lease for years, and the lessee had made a feoffment, and a præcipe had been brought against the feoffee, and he had vouched the tenant for life, such a recovery was not within the statute, because the tenant for life was not then seised of the estate for life. To remedy this, the statute 14 Eliz. c. 8 was passed, reciting, that several tenants in tail after possibility, and other tenants for life or lives, had suffered common recoveries, to the prejudice of those in remainder or reversion; it was therefore enacted, "that all such recoveries had or prosecuted by covin against any such particular tenant, or against any other, with voucher over of such particular tenant, should, as against all persons in remainder or reversion, be utterly void, and of no effect: provided that that act should not extend to recoveries by good title, or to recoveries by assent and agreement of the persons in remainder or reversion, so that such assent appeared of record in any of her majesty's courts. And it was thereby further enacted, that the statute 32 H. 8. should be repealed." In consequence of the last proviso in this statute, a tenant for life may join with the persons in remainder or reversion in suffering a common recovery, without incurring a forfeiture. Wiseman v. Crow, Cro. Eliz. 562. Pigott, 18. 83. 5 Cru. Dig. 398, 399.-[Ed.]