Jurisdictions, Part 118 – Part 120
Mortmain.
For that that by the 9th. Article, it is inquirable of Mortmain, to the intent that none ſhall give in Mortmain, but that the Lord may make his claim within the time limited in the Statute. Let us therefore ſee, what is an alienation in Mortmain, and what not.
IF Villain of an Abbot, or of a Corporation purchaſe, and the Abbot or the Corporation enters, this is in Mortmain, and the Lord may enter within the yeer. 41 Ed: 3. fol: 16. Fitzh: 224. B. Contrary of Land which diſcends to a Villain. 41 Ed: 3.21. and 48 Ed. 3.27.
If a Feoffment be made to the uſe of an Abbot, or a Corporation, this is Mortmain, and within the Statute, that the Lord may enter. 8 H. 4. fol: 16. Br: 11.
If an Abbot, Mayor and Commonalty, Dean and Chapter, or other Corporation, alien to another Corporation or Abbot, without licenſe, this is Mortmain, Fitzh: 212. D. The ſame Law if one exchange with an Abbot or Corporation, this is Mortmain, and the Lord may enter. Fitzh: fol: 223. E.
Lord, Dean and Chapter, or other Corporation are Tenants, and the Lord releaſes to Dean and Chapter, or to the Corporation, his Rent without licenſe, this is Mortmain. But if he be licenſed of the King, and of the cheif Lord, and (Ad quod damnum) be ſued, or in the licenſe of the King, this clauſe be, that is to ſay, without any Writ of (ad quod damnum) then the Mortmain is not to be inquired in no caſe, where ſuch licenſe is uſed, for that is diſpenſation, that the King nor the Lord cannot enter for Mortmain. But if the Lord with licenſe in this caſe aforeſaid, be Tenant in tail, or for life, and dyes, I think it is there inquirable. Fitzh: fol: 222. D. and 223. I.
But if the King grants to a Corporation liberty to purchaſe Lands and Tenements to the clear yearly value of 40 li. provided that it be not held in cheif, as divers Grants are: If ſuch a Corporation purchaſe Lands and Tenements held of the King, as of his Mannours of Eaſt Greenwich, Depford, otherwiſe Weſt Greenwich, Sayes Court, Lewſham fee, or held of the Queen as of her other Mannors, there it is not inquirable of Mortmain, but it is to be enquired in the Leet, if they have purchaſed any Lands held in chief, or over ſuch a value in the Grant. And alſo it is to be inquired in Court Baron for the Lord. If any Corporation have purchaſed any Lands or Tenements held of the Lords Mannor (notwithwanding the Grant, and licenſe of the King aforeſaid) for this ſhall not be to diſpence againſt the Lord for Mortmain.
Where anuity is granted to a Parſon or a Vicar of a Church, or to a Prior or an Abbot, by any tenant, It is no Mortmain to be inquired, for in anuity if they recover, colluſion ſhall not be inquired, for that doth but charge the Parſon of the grantor, and not the freehold, 10 Ed. 4. fol. 6.34. H. 6. fol, 37.3. Ed. 4.14: 33. H. 6.27.20. H. 6.7. and 17. Ed. 3.5.
But if any Tenant of the Lord, grant by deed out of his Land, any rent charge with clauſe of diſtreſſe to any corporation, that is Mortmain, and inquirable.
The ſame Law is, If any tenant will, that a Corporation, ſhall have to them and their ſucceſſors, a rent charge iſſuing out of his Land, and will not that his Parſon be charged in any manner, by Writ of an uity, but hath in the end of his Deed, provided alwaies that this preſent writing, nor any thing in that ſpecified, ſhall in no wife extend to charge my perſon by Writ or Action of anuitie, but onelyonly to charge my Lands and Tenements of the yearly Rent aforeſaid, This is Mortmain, and inquirable. The ſame Law is, if any Tenant of the Lord grant by Deed, that if the Dean and Chapter, Mayor and Commonalty, and their ſucceſſors, be not yearly paid at the feaſt of Chriſtmas 20 s. that then it ſhall be lawfull for them to diſtrain for the ſame in the manner of D. this is Mortmain, and inquirable. Littl: fol. 30. proves this a good Grant. See Fitzh. 224, G.
But where perſonall things are given to a Corporation, as Horſe, Cow, Ox, Sheep, hoggs, or other goods, there in this caſe Mortmain is not to be inquired, for theſe ſo given, are not within the ſtatute, 10. H. 7. fol. 3.
If a Biſhop or an Abbot, appropriate to themſelves an Advowſon held of a Lord, of which they are ſeiſed in Fee without Licenſe, that is Mortmain, and inquirable. Eitzh: fol: 223. H. and 5 H: 7. fol: 37. ſaith, that an Advowſon lyeth in tenure: 40 Ed: 3. fol: 44. accordingly.
If a Fiſhing held of the Lord, be granted by the Tenant, to a Biſhop and his Succeſſors, or to a Dean and Chapter and their Succeſſors, this is Mortmain, and inquirable. 40 Ed. 3. fol: 44. proves that it lyes in tenure.
The Statute of Religious, fol: 79. is, That no Religious, or other whatſoever, ſhall preſume to buy or ſell, any Lands or Tenements, either under colour of gift or tearm, or by reaſon of any Title whatſoever, or by any means whatſoever, art or wit preſume to appropriate them to him, under the penalty of forfeiting the ſame, by which the Lands or Tenements may come into Mortmain, by any means. And the Statute gives liberty to the next Lord (if he come within the yeer) to enter, and if he be negligent and do not enter, then the next Lord within half a yeer; and if not, then the King after the yeer and half may enter, And it is inquirable in the Court Baron, for the benefit of the Lord that he may enter within the yeer; and if the Lord be negligent, and do not take his time limited by the Stature, then the King may enter, and that is inquirable in Leet for the King.
25 H. 8. tit. 37. Lord and Tenant, the Tenant lets for life to I. S. the remainder to an Abbot and his Succeſſors, the Lord need not make claim till the Tenant for life be dead; for if he will waive the Remainder, it is no Mortmain.
Non-Tenure.
In ſo much that you ſue here plaints for Coppy-holder, and make proteſtation in nature of what Writ ſerves your caſe, and many times non tenure in them is pleaded, let us ſee where non tenure is a Plea, or is a plea of parcell and not of all.
NOntenure is no Plea in a (Nuper obiit) for it is to try privity of blood, 7 H. 6. fol. 8. Fitzh. fol. 197. D. & F. accordingly, but abridgment, Aſſ. fol. 120. Non-tenure is a good Plea in Mortdanceſter.
If one plead Ancient Demeſne, he cannot afterwards plead Non-tenure, for none may plead ancient Demeſne but the Tenant, 41. Ed: 3. fol. 22.
If one plead Non-tenure of parcell, he ought to ſhew that he is Tenant of that. But if he plead Non-tenure of al, otherwiſe it is, 8 Ed: 4. fol. 6.11. H. 4. fol. 16. and 36 H. 6.6.
Non-tenure is no Plea in (Scire facias) to have Execution upon a Fine. 7 H. 4. fol. 12.
Generally Non tenure is no plea in Scire facias to have Execution, for that that nothing in that is demanded, but Execution is demanded only. But it ſeems one may plead ſpeciall Non-tenure, as to ſay that he was a Diſſeiſor, and the Diſſeiſee hath entered upon him. 7. H. 6. fol. 16.
Ceſſavit, and counts that the Tenant held a houſe of him by fealty and ſuit of Court, he may deny that he is no Tenant of the whole houſe, for he cannot tender the whole arrearages without his companion, and goes in abatement of all. Raſt. Non-tenure 1.But Non-tenure of a parcell in a (Precipe) ſhall not abate for all. 21 Ed. 4. fol. 25.
Non-tenure of parcel ſhal abate all the Writ, by the Common Law, and now by the Statute but for the parcell, 36 H. 6. fol. 6.18. Ed. 4.41. Ed. 3.20. & 4. Ed. 4.33.
Littleton fol. 126. Formedon, If the Tenant plead Non tenure, Judgement ſhall be that the Tenant ſhall go without day, and after ſuch judgment the Demandant may enter.
26 H. 8. fol. 3. Attaint, He which was party to the firſt Record, cannot plead Non-tenure, by Hare, but his feoffee may.
21 H. 6. fol. 62. Attaint againſt him which recovers, and the petty-Jury and he ſaith, that he was not tenant day of the Writ purchaſed, and held good.
6. Book of Aſſiſes. Attaint againſt J.S. upon a verdict which paſſed for J. S. in a Writ of Entry upon diſſeiſin, and notwithſtanding that J. S. pleads as Tenant, yet for that, that he was not Tenant day of this attaint nor ever after, the Writ ſhal abate by Non-tenure 14 Book of Aſſ. 2. Attaint, Nontenure was good, but it was pleaded there by the Heir, or other perſon againſt whom the recovery was.
Fitzh: fol: 107. L. Attaint, Non-tenure hath been admitted a good Plea divers times.
8 Ed: 4.20. A man recovers in Court Baron in right, and the other brings falſe judgement, and recovers that, and in Scire facias to have Execution, he which firſt recovered, pleads ſpeciall Non-tenure, to ſtay Execution, and ſaid that he ſhall have it.
9. H. 5. fol. 11. Scire facias to have Execution, if the Tenant pleads Non-tenure ſpecially, That is, that he hath nothing but for years, the Plaintiffe ſhall not have Execution at his peri II.
Nuper obii.
In ſo much that (Nuper obiit) is a Plaint ſometimes by Copi-holder of that in Court Baron, ſomething ſhall be ſaid of that, and where it lies, and where not.
IT appears it lies where Lands diſcends to Coparceners, and after the death of the Anceſtor one enters into all, and deforceth the other, as where Grandfather, Father, Brother, Uncle or other Anceſter die ſeiſed of an eſtate in Fee, and after their death, one of their Heirs enters, and deforces the other Coparceners, here the Coparceners deforced ſhall have a (Nuper obiit) againſt the other Coparcener which deforceth them. And if one Coparcener be deforced by the other Coparcener, and a ſtranger, ſhe ſhall have a (Naper obiit) againſt her Coparcener, and this Jointenancy ſhall not abate the Writ. And this Writ lieth as well between Coheirs in Gavelkind, as between women which are Coparceners, if one deforce the other. Fitzh. fol. 197. A. C.
Nuper obiit lieth between ſiſters of the half blood, 3. Ed. 1 Tit. 5. Fitz. f. 179. G. Nuper obiit is maintainable, where her Anceſter was carried out of the ſame tenements, the day before his death againſt his will, by the other Coparcener, and dies out of the ſame tenements, 4. Ed. 2. Tit. 10. Fitzh. 197. L.
Nuper obiit lieth of a Corody, 16. Ed. 2. tit. 11.10. Aſſ. 11. Br: 3. Fitzh. 179.
If there be two Coparceners, and one of them marries a Villain, and the other deforce them, the Villain and his wife ſhall not have a Nuper obiit, 16. Ed. 3. tit. Fitzh 17.