9 H. 7. 24. A man maketh a gift in tail, the remainder in fee, tenant in tail (481)* dieth without issue, an estranger intrude, and he in the remainder 9 H. 7. 24. Vid. sect. 87. 138, 139. 231. 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). "It should be inconvenient." Here again, as hath been often 269. 440.722. observed, an argument ab inconvenienti is 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). *279 b. 14 H. 8. 6 b. (482)* "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 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 estrangers to the release, which, as hath been said, is a quality of an inheritance 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 remainderto 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 (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.] (c 2) Supra, 266 a. p. 476-478. and see the notes there.-[Ed.] (D 2) See ante, 66 a. vol. 1. p. 18. n. [10].-[Ed.] mere right, it shall be found for him, because in judgment of law he hath by the said release the right of the first disseisee. BUT releases which enure by way of extinguishment (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 the lordr elease 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 against all persons, because that the tenant cannot have (49) service to receive of himself. LITTLETON. [Sect. 479. 279 b.] IN the same manner is it of a release made to the tenant of LITTLETON. the land of a rent-charge or common of pasture, &c. because the [Sect.480. tenant cannot have that which to him is released, &c. so such 279 b.] releases shall enure (50) by way of extinguishment in all ways. 280 b.] (483)* ALSO, to prove that the grand assise ought to pass for the LITTLETON. demandant, in the case aforesaid, I have often (51) heard the [Sect.481. 280 a.] reading of the statute of West. 2. (which is the third chapter) which begun thus: In casu quo vir amiserit per defaltam tenementum quod [COKE, 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 by feigned action (feint is a participle of the French 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 (54) the tenant dieth, he in the remainder had no remedy before the statute, because he had not any possession of the land. [COKE, 280 b.] 280 b. (0) 24 E. 3. 35. "The remainder over in fee." Here is to be observed, that although the statute speaketh of a reversion (o), yet, by the authori- 28 E. 3. 96. ty of Littleton, a remainder is within the statute. En 18 E. 2. 2. Entrie, 7. See the statute of 14 Eliz. cap. 8. which provideth fully for him E. 3. Entrie, in the remainder (F 2). (49) service pour prender-ceo, L. and M. and Roh. (50) per extinguishment en touts voyès,— toutz foitz per voie d'extientisement envers toutz persons L. and M. and Roh. 62. 7 E.4.54, 55. 15 E.3. 15. F. N. B. 217 d. Register, 241. (1) Here Littleton returns to releases by extinguishment, see post, 268 a. [Butler.] (2) By the common law, if a præcipe had been brought against a 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, after this act, a 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 (p) W. 2. cap. 5. Vid. 34 E. 31. 11 E. 3. 3. Formedon, Ibid. 31. 8E. (p) "Had no remedy before the statute." Here it appeareth by Littleton, that if a man maketh a lease for life, the remainder in fee, and tenant for life suffereth a recovery by default, that he in the 3.59. F.N. B. remainder should not have a formeḍon 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. 217 d. 7 H. 7. 13. (484)* 280 a. (2 Inst. 345.) *280 b. LITTLETON. [Sect. 482. 280 b.] reasons, *"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 for proof of his opinion, and for confutation of the objections against it. Fifthly, they read, to suppress subtile inventions to creep out of the statute. But now readings having lost the said former qualities, have lost also their former authorities: for now the cases are long, obscure and intricate, full of new conceits, like rather to riddles than lecturs, which when they are opened they vanish away like smoke, and the readers are like to lapwings, who seem to be nearest their nests, when they are farthest from them, and all their study is to find nice evasions out of the statute. By the authority of Littleton, ancient readings may be cited for proof of the law; but new readings have not that honour, for that they are so obscure and dark. BUT if he in the remainder had entered upon the tenant for life and disseised him, and after the tenant enter upon him, and after the tenant for life by such recovery lose by default, and die, now he in the remainder may well have a writ of right against him which recovers, because the mise shall be joined only upon the mere right, &c. Yet in this case the seisin of him in the remainder was defeated by the entry of the tenant for life. But peradventure some will argue and say, that he shall not have a writ of right in this case, for that when the mise is joined, it is joined in this manner, scilicet, if the tenant hath more mere right in the land in the manner as he holdeth, than the deman 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.] dant hath in the manner as he demandeth, and for that the seisin of the demandant was defeated by the entry of the tenant for term of life, &c. then he hath no right in the manner as he demandeth (& 2). (485)* 280 b. 38 E. 3. 3. tit. Juris Utr. 1. *281 a. *Here a disseisin (A) gotten by wrong, and defeated by the entry of him that right hath, is sufficient to maintain a writ of right against the recoveror in this case, for albeit the seisin is defeated between the lessee for life and him in the remainder, yet having regard to the recoveror, who is a mere stranger, and hath no title, it is sufficient against him. But otherwise it is against the party himself 7 E.3.62. 38 that defeated the seisin, and the law is propense to give remedy to Jur. Utr. 1. him that right hath. And where some have thought, that there is (Ante, 315 a.) no authority in law to warrant Littleton's opinion herein, they are greatly mistaken, for Littleton hath good warrant for all that he hath written. Lands are letten to A. for life, the remainder to B. for life, the remainder to the right heirs of A.; A. dieth, B. entereth and dieth; a stranger intrudeth, the heir of A. shall have a writ of right of the seisin which A. had as tenant for life. E. 3. 37. tit. b.) Lands are letten to A. and B., and to the heirs of A.; A. dieth, (Ante, 184a. a recovery is had against B.; the heir of A. shall have a writ of right of the whole, for every joint-tenant is seised per my et par tout. If lands be given in tail, the remainder to A. in fee, the donee dieth without issue, his wife privement enseint, A. entereth, the issue is born, and entereth upon him, and dieth without issue, A. shall have a writ of right of the seisin which he had. If lands be given in tail to A., the remainder to his right heirs; 4 E. 3. 16, 17. A. dieth without issue, the collateral heir of A. shall have a writ of right of the seisin of A. (G2) Here Littleton, in support of his opinion, that, in the principal case the grand assise ought to pass for the heir of the alienee, puts the case of a person who had a remainder in fee expectant on an estate for life, at common law; the tenant for life lost by default in a feigned action, and died; he in the remainder, before the statute of Westm. 2. c. 3., had no remedy. But, if he had disseised the tenant for life before such recovery, and then the tenant for life had re-entered, and lost by default, the remainder-man might have had a writ of right against the recoveror; for though the seisin which he gained was defeated by the re-entry of the tenant for life, as to him, yet it was a good ground of a writ of right against the recoveror, who was a mere stranger. Infra, 280 b. And though the mise be joined in this manner, whether the tenant have more right as he holds than the demandant in the manner as he demands, and the seisin of the demandant were defeated, so that he has no right in the manner as he demands, yet he ought to recover; for these words modo et forma are mere form, where the issue is joined, as in this case, on the point of the action. Infra, 281 b.-[Ed.] (A) Disseisin seems to be here printed by mistake instead of seisin; as it was the tortious seisin, which the remainder-man acquired by his disseisin of the tenant for life, that enabled him to defeat in a writ of right, the recovery by the default of the tenant for life. [Note from the 18th London Edition, 1823.] 11 H. 4. 11. LITTLETON. *And so note a diversity between a seisin to cause possessio fratris, &c. for there is required a more actual seisin, and a seisin to maintain a writ of right. And hereby also are the (&c.) in this section explained. * TO this it may be said, that these words (modo et formâ prout, [Sect.483. &c.) in so many cases are words of form of pleading, and not 281 a.] words of substance. For if a man bring a writ of entry in casu *281 b. proviso, of the alienation made by the tenant in dower to his dis (Yelv. 148. Hob. 73. 105.) (6 Rep. 24.) LITTLETON. [Sect.484. 281 b.] LITTLETON. (487)** inheritance, and counteth of the alienation made in fee, and the tenant saith, that he did not alien in manner as the demandant hath declared, and upon this they are at issue, and it is found by verdict that the tenant aliened in tail, or for term of another man's life, the demandant shall recover; yet the alienation was not in manner as the demandant hath declared, §c. (μ 2). ALSO, if there be lord and tenant, and the tenant hold of the lord by fealty only, (55) and the lord distrain the tenant for rent, and the tenant bringeth a writ of trespass against his lord for his cattle so taken, and the lord plead that the tenant holds of him by fealty and certain rent, and for the rent behind he came to distrain, &c. and demand judgment of the writ brought against him, quare vi et armis, &c. and the other saith, that he doth not hold of him in the manner as he suppose, and upon this they are at issue, and it is found by verdict that he holdeth of him by fealty only; in this case the writ shall abate, and yet he doth not hold of him in the manner as the lord hath said. For the matter of the issue is, whether the tenant holdeth of him or no; for if he holdeth of him, although that the lord distrain the tenant for other services which he ought not to have, yet such writ of trespass quare vi et armis, &c. doth not lie against the lord, but shall abate. ALSO, (56) in a writ of trespass for battery, or for goods car[Sect. 485. ried away, if the defendant plead not guilty, in manner *as the 282 a.] plaintiff suppose, and it is found that the defendant is guilty in another town, or at another day than the plaintiff supposes, yet he shall recover. And (57) so in (58) many other cases these words, viz. in manner as the demandant or the plaintiff hath supposed, do not make any (59) matter of substance of the issue; for in a writ of right, where the mise is joined upon the mere right, that is as much as to say, and to such effect, viz. whether the tenant or demandant hath more mere right to the thing in demand. (55) et-si, L. and M. and Roh. (58) moltes, added in L. and M. and Roh. (59) matter-manner, L. and M. and Roh. (H 2) For the point of the writ is whether the tenant in dower aliened to the dishersion of the defendant. See ante, n. (G 2). p. 484, 485.—[ Ed.] |