Law, Book 4 · Chapter 5
CHAP. 5.
Of a Plea of Land.
A Reall praecipe quod reddat, is that which is for reall things in render. And is a plea of land or other ſuch reall precipe
A plea of land which is for land or other ſuch things in demeſne, where land in certaine is demanded, it muſt alwayes bee brought in a ville, or place knowne out of any ville And not in a hamlet which is parcell of a vill. But perſonall actions, as treſpaſſe, and ſuch like, may be in a hamlet. So of Dower and Aſſiſe, for there no land in certaine is demanded; and alſo in an aſſiſe, he ſhall recouer by view of the Iurie. So in a Scire facias out of a fine nuper obijt, a Writ of meſne, couenant, waſt, quare impedit. Theſe may be in a Hamlet. Otherwiſe it is of a Writ of right of Aduowſon.
A plea of land is a Writ of Entrie, or a writ ſhewing the demandants title.
A writ of Entrie is that which is to diſprooue the Tenants poſſeſſion by the meanes of his entrie.
Wherein Tenant in fee ſimple demanding Old N. B. 124. Fit. N B. 201 … & f.of the poſſeſſion of his anceſtor ſhall ſay in the writ, Quod clamat eſſe ius & hereditatem ſuam. Tenant in Taile or for life, ſhall not ſo. But in his declaration ſet forth Fit. N…t Br. ibid.his ſpeciall eſtate.
A Writ of Entrie is either againſt the firſt partie, or in the degrees.
Againſt the firſt party, when it is againſt him to whom the firſt allienation was, or that made the firſt diſſeiſin.
That in the degrees, is in the Per, or in the Per and Cui.
In the Per, when he againſt whom it is brought commeth in immediatly vnderunder the firſt partie, as heire vntounto him, or by alienation from him.
In the Per & Cui, when he againſt whom it is brought commeth in immediatly vnderunder the firſt parties heire or allience: For if more then theſe two alienations (the Per, or the Per and Cui) paſſe, the demandant is driuen to his writ of right. And the reaſon is, that there may be an end of ſuits. For no Writ of Entrie in the Poſt lay at the Common Law. But the ſame is giuen by the ſtatute of Marlebridge. cap. 29. Which writ of Entry in the Poſt giuen now by that Statute, lyeth when hee againſt whom it is brought commeth in neither in the Per not Per and Cui, then the Writ ſhall be In quod, &c: niſi poſt dimiſſionem, &c. Out of all degrees, as by abatement, diſſeiſin, eſchete, recouerie, Election, Succeſſion, Dower, Iudgement, &c. or as the third or more feffees.
The forme of all which is thus In a writ of Entrie, in the nature of an Aſſiſe, againſt the partie himſelfe that did the diſſeiſin, Praecipe A. quod reddat B. vnum Meſſuagium, &c. de quo A. iniuſte et ſine Iudicia diſſeiſiuit B. &c. or in the other forme diſſeiſiuit C. patrem, or other anceſtor of B. cuius heres ipſe eſt, &c. In the Per thus. In quod idem A. non habet ingreſsum niſi per C. qui illud ei dimiſit qui iniuſte B. &c. (or in the other forme) qui iniuſte, &c. E. patrem, &c praedict. B. &c. In the Per and Cui thus. In quod, &c. niſi per C. cui D. illud dimiſit qui inde iniuſte B. or (in the ſecond forme) qui iniuſte E. patrem, &c. praed. B. In the poſt thus. In quod, &c. niſi poſt diſſeiſinā quam D. iniuſte fecit praed. B. or (in the other forme) iniuſte fecit E. patri, &c. praed. B. &c. In ſuch like manner it is of a Dum fuit infra aetatem, and of all other Writs of Entrie vponupon an alienation. Marleb. cap. 29.
Writs of Entrie grow either without wrong at the firſt, or vponupon a wrong.
Thoſe without a wrong at the firſt, are grounded vponupon a determination of the firſt eſtate, or a diſhabilitie in the perſon that made it.
VponUpon a determination of the eſtate, either by reaſon of a particular eſtate ended, or a condition broken.
Of a particular eſtate ended is an ad terminum qui praeterijt, or Entre ad Communem Legem.
Ad terminum qui praeterijt, is vponupon a deforcement by the leſſee or a ſtranger after a Leaſe for yeares, or life expired, whether the Leſſee did allien, or not. But not after the death of Tenant in Dower, or by Curteſie, for that is not properly called a Terme
Entrie ad communem legem, is when tenant for life, be it his owne or anothers life, tenant in Dower or by curteſie of England doth alien and die, and hee in the reuerſion for life, may hauehave this writ.
Of a condition broken, as Cauſa matrimonij praelocuti. Cauſa matrimonij pralocuti, is for a woman that giueth land to a man to marrie her, and he will not: but it lyeth not for a man that giueth lands to a woman.
Grounded vponupon the diſabilitie, are a Dum fuit infra aetatem, and a Dum non fuit compos mentis.
Dum fuit infra aetatem is by the infant, when he commeth to his full age, vponupon an alienation by himſelfe, or his aunceſtor, being within age.
But the clauſe that he is of full age, viz. qui plenae eſt aetatis, ſhal not be inſerted in the Writ, if either it be brought in the degrees Per, cui, or poſt, or vponupon the anceſtors alienation.
Dum non fuit compos mentis, is vponupon the alienation of himſelfe, or his anceſtors being of non ſane memorie.
Thoſe vponupon a wrong at the firſt are either vponupon a diſcontinuance, or an ouſter.
VponUpon a diſcontinuance, as a Cui in vita, or a Sine aſsenſu capituli.
A Cui in vita, for the wife after the huſbands death vponupon his alienation of her fee ſimple, fee taile, or freehold, whether whether dower or otherwiſe, or of ſuch a ioynt eſtate in them.
And in this writ claiming a fee ſimple, but not an eſtate Taile or a freehold, for there the Writ ſhall make ſpeciall mention of the eſtate, ſhe ſhall ſay, Quod clamat eſſe ius et hereditatem ſuam, though it be of her owne poſſeſſion.
Statutes.
Weſtm̄ 2. cap. 3. A cui in vita giuen to the wife after her husbands death, vponupon his loſing of the land by default. And the Tenant that recouered againſt her husband muſt maintaine his owne right.
If it be an eſtate of fee ſimple, and ſhe bring not in her life time a cui in vita, the heire ſhall hauehave a Sur cui vita. But of an eſtate taile onelyonly, a formedon lyeth in this caſe for the heire.
And of this nature is a cui ante diuortium, when it is brought by the wife after diuorcement, vponupon ſuch an alienation as before.
A fine aſſenſu capituli is for the Succeſſor of a Biſhop, Abbot, Prior, Deane, Prebendarie, or Maſter of any Hoſpitall after the diſcontinuance of the Predeceſſor, viz. when they alien the lands they hauehave in the right of their Church, houſe, Abbey, or Priorie, without the conſent of their couent, Chapter, or Confrers, &c.
VponUpon an ouſter, or either vponupon an intruſion or a diſſeiſin.
That vponupon an intruſion is called a writ of intruſion, and is for him in the reuerſion or remainder in fee ſimple, or for life, not in taile (for hee ſhall hauehave a formedon) nor for yeares, becauſe he hath not the freehold, after the death of tenant for life in Dower, or by curteſie.
And if land bee giuen to two, and the heires of one, and hee that hath fee dyeth, and after him tenant for life dyeth. Now the heire of him in the remainder ſhal hauehave this writ. And it lyeth alſo for the aſſignee of the aſſignee of him in the remainder.
VponUpon a diſſeiſin, is when the diſſeiſin is done to him or his Anceſtors. As a writ of Entrie in the Quibus; or which is all one in the nature of an Aſſiſe.
Writs that ſhew the demandants title, are meere poſſeſſorie, or in the right.
Meere poſſeſſorie are thoſe which are brought by the next heire vponupon an abatement after the death of any aunceſter, other then his father, mother, brother, ſiſter, vncle, Aunt, Nephew, Neice, for vponupon an abatement after the death of any ſuch aunceſtor, an Aſſiſe of mortdaunceſtor lyeth as ſhall appeare afterwards: ſeiſed in demeſne as of a fee ſimple the day of his death, though hee were diſſeiſed the very ſame day, and ſo died not ſeiſed at all. Of this nature are,
A Writ of Ayell after the death of his grandfather or grandmother.
A writ of Beſayel after his great grandfather or grandmother.
I writ of Coſinage after the death of his great great grandfather or grandmother, or any other collaterall Coſin, as the great great grandfathers brother.
Statutes.
Weſtm̄ 2 cap. 20. In a Writ of Coſinage, Ayell, and Beſayell, the point ſhall bee enquired whether the demaundant bee next heire aſwell as in a mortdaunceſter.
In the right, is that which is to diſproue the right of the Tenant, and is a Writ of right in his nature, or a Praecipe in Capite.
A Writ of right in his nature which ſheweth how the demaundants right is growne. And is a formdon or a writ of Eſchete and Dower, vnde nihil habet.
A Formdon is a Praecipe quod reddat, entitling the partie by the forme of the gift.
And is a formedon in remaynder, or a Formedon in reuerter: for a formedon in deſcender lyeth not at the Common Law, but is giuen by the Staute of Weſtm̄ 2. Old Nat. Br. ꝑ Br. Formd 69. 3. El. Pl 235.cap. 1.
A Formedon in remaynder is for him in the remaynder for (a)Old Nat. Br. 148. 149.life, or in (b)F. N. B. 217. d.fee vponupon a Leaſe for (c)Fitz. ibid.life expired. For after an eſtate taile expired, it lay not at the Common Law: becauſe it was a fee ſimple, whereupon a remainder could not depend.
A formdon in reuerter is for the donor Fit. N Br. 219. c. 30. E. 1. formd. 65.alter the iſſue in taile determined, as at the Common Law, if the donee alien before iſſue had, and after die without iſſue: or if he hauehave iſſue, and after he or his iſſue dye without iſſue. Contrarie it is if he had iſſue and then had aliened, and dyed without iſſue.
A writ of Eſchete is for the Lord that hath a ſeigniorie in fee, or for life vponupon an eſchete.
Dower, vnde nihil habet, is a writ for Old Nat. Br. 6.ones dower, which hath receiued no part at all of it.
Statutes.
Weſtm 1. cap. 48. A writ of dower vnde nihil habet, ſhall not abate though ſhe hauehave receiued part of her dower before the writ purchaſed, vnleſſe it were of the ſame partie againſt whom the writ is brought, and in the ſame Towne.
A writ of dower lyeth againſt gardein Br. pr…. qd rodd. 35by knight ſeruice, though he be not tenant of the freehold.
A praecipe in capite is a praecipe quod reddat, for the meere right: and therefore lieth Fit. Nat. Br. 5. f.onelyonly for Tenant in fee ſimple of lands holden in Chiefe.
Statutes.
Waſhm̄ 2. cap. 4. In place of a writ of right, a Quod ei deforceat is giuen to Tenants for life or in taile vponupon looſing by default.