Law, Book 2 · Chapter 2
CHAP. 2.
Of Poſſeſsions.
OF the Common Law there bee two parts.
One that concerneth Poſſeſſions.
The other the puniſhment of offences.
A poſſeſſion is whatſoeuer may bee inioyed.
Prerogatiue.
The King ſhall hauehave to his owne vſe, & 31. E. 3. San. def. 37.therefore may let to farme rendring a rent, all the poſſeſſions of a foole (a)18. E 3. Sciro fac. 10.naturall, not of any other Ideot (b)Stam pre. 34.during his ideocie, but (c)1. H. 7. 24.not that which he hath title vntounto by entrie or action. And therefore vponupon an office (finding that the Ideots anceſtors died ſeiſed of an eſtate taile) it is ſufficient to trauerſe the dying ſeiſed, for that only intituleth the King.
Statutes.
Prerogatiue cap. 9. The King ſhall hauehave the cuſtodie of their lands during their life. Prerogatiue cap. 10. And of Lunatickes, during their Lunacie, to their owne vſe.
When one hath the poſſeſſiō of any thing 28. H. 8. Dy. 12. Fitz.to anothers vſe, this vſe at the Common Law, was accounted nothing, but as a matter in conſcience and Chancerie onelyonly. Whereupon theſe Statutes following were made.
1. R. 3. cap. 1 Ceſti qui vſe may grant the land, or ſuffer a Recouerie of it.
4 H. 7. cap. 17. The heire of Ceſti qui vſe, (of land holden by Knights ſeruice) ſhal be in ward, and pay reliefe.
19. H. 7. cap. 15. Execution vponupon iudgement, ſtatute, or recogniſance, ſhal be good againſt Ceſti qui vſe.
The heire of Ceſti qui vſe of land in Socage, ſhall pay reliefe, heriot, &c.
27. H 8. ca 10. Where any be ſeiſed to the vſe or truſt of another, Ceſti qui vſe, or truſt, ſhall hauehave the poſſeſſion in ſuch qualitie, manner, and condition, as he had the vſe or truſt. So when any be ſeiſed to the vſe or intent that another ſhall hauehave a yearly rent out of the ſame lands, Ceſti qui vſe of the rēt ſhal be deemed in the poſſeſſion thereof, of like eſtate as he had that vſe.
27. H. 8. cap. 16. Bargaines and ſales to raiſe an vſe of inheritance or freehold, muſt bee by deede indented and inrolled within ſixe moneths, in a Court of Record at Weſtminſter, or in the Countie where the land lieth.
Sundrie men poſſeſſing the ſame thing by purchaſe, are Iointenants, or Tenants in Common.
Iointenants which poſſeſſe by the ſame title. As if two, three, or more, be infeoffed Lit. ca▪ of Iointer.of certain lands, to hold to them and their heires, or during their own or anothers life, or diſſeiſe another to their owne vſe, or a leaſe be made, or a horſe, or other Chattell perſonall giuen vntounto them.
And here the ſuruiuour ſhall hauehave the Lit. ibid.whole in the ſame ſort as he had his part, excepting onelyonly preſent intereſts of the thing it ſelfe granted by him that dieth.
As a Leaſe for yeares, though the Leſſee neuer had poſſeſſion, or though it be to begin at a day to come, and the Iointenant which made it, die before the day; bindeth the Suruiuor: for the Leſſee hath a preſent intereſt.
Otherwiſe it is of a grant to hauehave a leaſe, if the grantee pay x. l. before midſomer next, 5. El. Ploy. 203. Browne.and the Iointenanr which made the grant, die before the day: for there is no intereſt at all, but a communication onelyonly, till the monie be paid. Otherwiſe it is alſo of a rent charge granted out of the land wherof they Lit. ibid.are Iointenants: for that is no intereſt in the land it ſelfe.
Tenants in Common are they which poſſeſſe by ſeuerall titles.Lit. chap. of tenants in Common.
As if two Iointenants bee, and one alieneth his part to another, the Alience, and the other Iointenant, are Tenants in Common: for the Alienee commeth in by one of the Iointenants feoffement. So if three Iointenants be, & one alien that which to him appertaines in fee; the Alience is of this third part tenant in common, with the other two Iointenants: but they remaine ſtill Iointenants of the other two parts. So if land be giuen to two men or two womē, and the heires of their two bodies engendered: the Donees hauehave a Ioint eſtate during their liues: but their iſſues are Tenants in Common of the inheritance. For euey one claimeth as heire of the bodie of his father. And it is impoſſible that two men or two women ſhould hauehave one heire of their bodies betweene them begotten.
So if land be giuen to a Maior & Comminaltie, and their ſucceſſors, & to I. S. for I. S taketh in his owne right, and the other in the right of the corporation. And therfore 7. H. 7. 9.vponupon a feoffement to a corporation, & another perſon, there muſt be ſeuerall liueries, in reſpect of their ſeuerall capacities, which maketh them tenants in common.
So if lands be giuen to two, Habendum the one moitie to the one, & the other moitie Lit. ibid.to the other. In like ſort if a leaſe for yeares be made to two, or two buy a horſe or oxe, and one grants that which to him appertaines of the terme, horſe or oxe to another.
To poſſeſſions this is generall, that they may be granted.
Statutes.
3. H. 7. cap. 4. All deeds of gift of goods and chattels made of truſt to ones own vſe, ſhall be void.
13. Eliz. cap 5. made perpetuall.
27. Eliz. cap. 1. Euerie gift, grant bargain, and conueiance, of lands & chattels, or of leaſe, rent, common, or other profits out of them, and euerie bond, ſuit, iudgement, and execution ſince the beginning of her Maieſties raigne, or herafter to be had or made, for the defrauding of any perſons iuct action, ſuit, debt, account, dammage, penaltie, forfeiture, heriot, mortuarie, or reliefe, ſhall be void againſt that perſon, his heires, executors, &c.
The parties or priuies knowing ſuch a fraudulent gift which ſhall iuſtifie it to bee done bona fide, or ſhall alien ſuch things ſo to them conueyed; forfeit one yeares value of the lāds or profits out of it, & the whole value of the goods and chattells, & the ſum of ſuch couenous bonds, & ſhal hauehave halfe a yeres priſonment: this act extēdeth not to commō recoueries, nor vouchees in a formdon, nor to any gift, &c. bona fide, & vponupon good cōſideratiō to any perſon, not knowing of any fraud.
27. Eliz. cap 4. Euerie conueyance, grant, charge, leaſe, eſtate, incumbrance, and limitation of vſe of Lands, tenements, or hereditaments, made ſince the beginning of her Maieſties raign, or hereafter to be made, for the defrauding of purchaſors of the land it ſelfe, or any part or profit out of it, ſhal be voyde againſt the perſon ſo purchaſing for monie, or other good conſideration, and againſt all claiming vnderunder him; with penaltie, as in the former ſtatute.
This extendeth not to the auoiding of any grant &c. vponupon good conſideration and bona fide If any ſuch conueiance &c. be made with a clauſe of reuocation or alteration at his pleaſure, by writing; and after he ſhall bargain, demiſe, ſel, grant, conuey, or charge the ſame lands &c. for monie or other good conſideration (the conueyance not reuoked or altered) then the conueyance &c. ſhall be void againſt the bargainees, &c. and all claiming vnderunder them (lawful morgages only excepted.)
Prerogatiue.
Euerie grant made by the King, vponupon ſurmiſe or ſuit of the partie, ſhall bee taken moſt beneficially for the King, and againſt 37. H. 6. 21.the partie Soas a pardon to the Sheriffe ex ſpeciali gratia & mero motu of all miſpriſions, offences, contempts, and deceits, ſhal diſcharge him of an amerciament, for returning of one Quarto exactus, where indeede he was outlawed. But if himſelfe ſue for ſuch a pardō, he muſt hauehave expreſſe words, otherwiſe it will not helpe him.
His grant ſhall not be taken to two intents; that is, Shall not inure to any other intent than that which is preciſely expreſſed within the grant.
As if he grant an office for life to an Alien, 9. E. 4. Den. 1.it is nothing worth: for it cannot inure alſo to make him a Deniſen.
If he grant land to A. in fee, which A. is 19. El. Ploy. 502.his villeine; this ſhall not manumiſe him: for the villenage is a forrein matter not expreſſed in the grant.
But the King may create a Duke, and in that patent grant him Land by the ſame Br. patents 44.name, or make a Maior or Comminalty, & by the ſame patent, giuegive them Land, or grant them licence to purchaſe: for theſe are two ſeuerall things expreſſed in the Grant.
No grant of his is good, when it appeareth within the bodie of the grant, that the King is deceiued.
As if he giuegive lands to one and his heires 18. H. 8. B. pa. 104males. For this is a fee ſimple, and it is plain, the king meant to grant but an eſtate taile.
Statutes.
1. H. 4. cap. 6. The Kings grants ſhall be void, if expreſſe mention be not made of the value, in the Petition of thoſe that ſue for it.
A grant by an infant vnderunder the age of F. N B 202. 26. H. 8. 2.21. yeares, (a)F. N. B. 202. c. 7. H. 4. 5. 12.one out of his right mind; whom we cal non ſane memorie, or non compos mentis, or compelled thereunto either by (b)9. H. 7. 24.dures of impriſonment, or feare of ſome (c) 39. H. 6. 50.bodily hurt threatned to himſelf, not to his father, mother, brother, &c. as loſſe of life & member: or though it be but of impriſonment: for impriſonment is a corporal pain, & one may be impriſoned that he may die of it. Otherwiſe it is of a menace to breake or burned downe ones houſe; for that is but the loſſe of ones goods, is auoidable, that is to ſay may be auoided at any time be entrie action, &c. if they deliuer it with their hād: as in a feoffement, and themſelues make liuerie, or a gift of goods, and themſelues deliuer them.
But if they deliuer it not with their hand, as in a grant of a rent, aduowſon, &c. or a feoffement by letter of Attornie, &c. it is meerely void, and nothing at all paſſeth: So as they may hauehave a treſpas or aſſiſe, and remaine Tenant to the Lord, and therefore ſhal be in ward, notwithſtanding any ſuch feoffement.
So of a grant made by one that hath no Park. 5.vnderſtanding. As if he be borne dumbe, deafe, and blind. But one dumb may make a good grant, or borne dumbe & deafe. For diuers may hauehave vnderſtanding by their ſight onelyonly, though dumbe and blinde.
Grants of an infant, in reſpect of hauing things neceſſarie, cannot be auoided.
As a bargaine for his neceſſarie meate, 18. E. 4. 2.drinke, & apparell: for he cannot liue without them.
Other grants of his where himſelf hath likewiſe benefit. We call it Quid pro quo, are onelyonly voydable, as if he let land for yeares, 18. E. 4. ibid.reſeruing a rent.
To this place belongeth exchange, which Lit. 13.is a mutuall grant of equall intereſts, each in exchange of other.
As of land in fee ſimple, for other of the ſame eſtate. But to exchange an eſtate pur Park. 55:auter vie, for an eſtate for life is not good. For though both hauehave a free hold, yet an eſtate during anothers life, is not ſo high a freehold, as an eſtate during his owne life. And in euerie exchange there be two grāts, Lit. 13.for each graunteth to other his land in exchange. And the verie word it ſelfe of exchange 9. E. 4. 21.is neceſſarie: For if I giuegive to a man an acre of land by deede indented, and hee by the ſame deede giuegive vntounto me another acre for the ſame acre, nothing paſſeth without liuerie, if the word Exchange bee not in.
Preſcription is as auaileable as any Lit. 40.grant. As that one and his anceſtors, time 19. H. 6. 34.out of mind, hauehave beene ſeiſed of a certaine yearely rent out of land, & diſtreyned for Lit. ibid.it being behind. Or if a velleine and his anceſtors, as of villeines in groſſe; or that one, and thoſe whoſe eſtate he hath in the Mannor of D. hauehave had a park there time out of 3. E. 3. Br. incid. 39mind. For of ſuch things as cannot be granted without deede or fine, the preſcription Lit. ibid.muſt be in him & the anceſtors, whoſe heire he is: and not in himſelfe, and thoſe whoſe eſtate he hath: becauſe he canot hauehave their eſtate without writing, which muſt bee ſhewed to the Court. As of a villeine in groſſe, a (a)12. H. 7. 18.hundred rent &c. Otherwiſe it is of things appendant or regardant to a mannor
A poſſeſſion is either vponupon a limitation, or condition, or elſe abſolute.
VponUpon a limitation which ceaſeth vpō the 11. H 7. 17.doing or not doing of ſomething. As a leaſe for yeares, vponupon condition if the leſſee goe not to Rome by ſuch a day, his eſtate ſhal ceaſe. And therefore in this caſe the grantee of the reuerſion may enter, if he go not: for therby his eſtate is determined & void. Lit. 90.So if lands be giuen to husband and wife during the couerture: or a Parſon make a leas to one ſo lōg as he is parſō; this in both caſes is an eſtate for life vponupon limitation.
VponUpon condition, which is onelyonly defeaſible vpō the doing or not doing of ſomthing. As a leaſe for yeares or life, vponupon condition L…t. 74. & 8…:if the leſſee go not to Rome by ſuch a day, the Leſſor and his heires may reenter. And therefore here the grantee of the reuerſion cannot reenter for the condition broken. So if a man by deed indented, infeoffe another in ſee ſimple, or make a gift in taile, or a leaſe for life or yeares, reſeruing to him & his heires a yerely rent, payable at a certain time, vponupon condition, if the rent be behind &c. it ſhall be lawfull for him & his heires into the ſame lands or tenements to reenter &c. In theſe caſes if the rent be not paid at or before the time limitted in the condition; the feoffor or his heires may enter in ſuch lands or tenements, and them hauehave & hold in his firſt eſtate, and thereof quit and cleane to ouſte the feoffee, donee, or Leſſee, &c. And this is termed a condition in deed. So of ſuch eſtates as hauehave by the law, a condition annexed vntounto them; although it be not ſpecified in the writing. As a man graunteth to another by his Deede, the office of a Parkerſhip of his parke, to hauehave and occupie the ſame office for term of his life; the eſtate which he hath in the office, is vponupon condition in Law: that is to ſay, that he doe well and lawfully keepe the park, & do that which to the office appertaines, otherwiſe the grantour and his heires may lawfully ouſt him, and grant it to another. And ſuch a condition which is vnderſtood by the law to be annexed to any thing, is as ſtrong as if the condition were put in writing.
In the ſame maner it is of the grant of a ſtewardſhip, Bedleſhip, Bailiwicke, or other offices.
Abſolute, which is neither vponupon limitation nor condition.
Againe, poſſeſſions are in being, which properly wee terme in poſſeſſion or in Action.
In poſſeſſion, which one doth inioy.
In action, whi…h one ought to inioy, either in reſpect of a right or title.
Right is when a wrong was done before: 15. El. Ploy. 555. Manwood.as by wrongful entrie vponupon his lands, or taking away his goods, &c.
Title, when no wrong was done.
As in a feoffement vponupon condition, and the feoffee breakech the condition.
Of things in action: as cauſe and matter Preamble of 32. H. 8. 8 cap ſo reciteth the Common Law.of ſuit, entrie to continue ones right, or vponupon title: as for a condition broken, & ſuch like, no ſtranger ſhall take aduantage And ſtrangers are accounted (beſides the parties themſelues, which are not either priuie in Park. 164.bloud, as the heire to the feoffor: or in ſucceſſion, as the ſucceſſor of Maior and comminalty, &c. or executor, adminiſtrator, &c. which repreſent the teſtator.
Statutes.
32. H. 8. cap. 34. All grantees of reuerſions may enter vponupon Farmors, for any forfeture (or condition) and hauehave like aduantages againſt them (by action only) for any other couenants, condition, or agreement contained in the Indenture of their leaſe) as the Leſſors, their heirs, or ſucceſſors might And the like for the Leſſees againſt the grantees of the reuerſions (recouerie in value onelyonly except.
Therefore things in action cannot bee granted but to him that hath poſſeſſion: and that by releaſe or confirmation: for a releaſe 1. H. 6. 4.or confirmation of land to him that hath nothing in the land, is void.
Releaſe is a paſſing of the grantors intereſt. The forme whereof is, De me & hared. Lit. 105.quietum clamaui, &c.
Confirmation is a ratifying of the grantees poſſeſſion. The forme whereof is. Confirmaui C. de D. ſtatum & poſſeſſionem &c.Lit. 119.
Furthermore, the grant of euerie thing in action, and of ſuch things in poſſeſſion as cannot paſſe by liuerie of the hand, muſt of neceſſitie be by deede. For the right of the thing Reall or perſonal, cannot be giuen 6. H 7. 9.nor releaſed by parol. No more can a reuerſion, rent, common in groſſe, or villeine in Park. 13.groſſe, be granted by paroll.. But a horſe, oxe, or ſuch perſonall thing, corne, & trees growing vponupon the ground may: and alſo the wardſhip of bodie or land.
So a leaſe for life, with a remainder ouer, is good without deed: for the remainder paſſeth by liuerie and ſeiſin.
A Deede is a writing ſealed and deliuered. For if either a parchment with Park 25.out Writing bee deliuered as ones Deede, yet it is not his Deed, though an Obligation be afterwards written in it: or Park. 27.if it be a writing but not ſealed at the time of the deliuerie of it as his Deede, it is a ſcroule and not his deed. Or if I make & 9. H. 6. 37.ſeale a deede, and the partie take it without my deliuery; I may plead it is not my deed. And belongeth alwaies to him whoſe poſſeſſion is made by it. As if I releaſe to two diſſeiſors, and deliuer the Deede to one, the 34 H. 6 1.other ſuruiuing ſhall hauehave it. Or if the 6 H. 7. 3.Diſſeiſee releaſe to the Diſſeiſor, and hee make a feoffement of the land, the feoffee ſhall hauehave the releaſe. But if a feoffement to two without deede, and the writings of the land are deliuered to the one, the other ſhall not hauehave them: or if hauing two joint feoffees, I releaſe to both, and deliuer the Deede to one, the other though he ſuruiue, ſhall not hauehave it.
But a writing read in another forme to 1. H. 7.one not lettered, that is, that cannot reade, is not his deede at all, though he ſeale and deliuer it.
A deed is a deede poll or indenture.Lit.
Poll, that which is the onelyonly Déed of the grantor.
Indenture, that which is the mutuall Lit. 88. 14. El.Deede of both: yet the deed of the grantor is the principal, and the other is but a counterpane. And therefore if the Leſſor ſeale, and not the leſſee, it is as good againſt him as if both had ſealed. And if there happen any variance betweene the deeds, it ſhall be taken as the deed of the grantor is, and the other ſhal be intended onelyonly the miſpriſion of the writer.
And barreth them from ſaying contrary to any thing in the Indenture. As vponupon a 15. El. Pl. 434.leaſe by indenture or fine, both parties are eſtopped to ſay that the leſſor had nothing in the lād: ſo as if the leſſor come afterward to hauehave the Land by purchaſe or diſcent, the Leſſee may enter vponupon him by way of concluſion, and likewiſe the Leſſee ſhall by eſtoppell, be driuen to pay the rent.
Sometime bare acts, without indenture Lit. 149.or other matter. Worke an eſtoppel in like ſort. As if the husbād diſcontinue the wiues land, and take backe to him and his wife for their liues: the wife is remitted, but the husband (by this bare taking back, is eſtopped to ſay ſo.