ESTATE AND NUM- For that whereas, before and at the time of the making of the indenture of demise hereinafter mentioned, one E. F. was seised in his demesne as of fee, of and in one undivided moiety, the whole into two equal moieties to be divided, Tenancy in common(w). of and in the tenements, with the appurtenances, hereinafter mentioned to have been demised to the said defendant; and one G. H. was also then seised in his demesne as of fee, of and in the other undivided moiety, of and in the said tenements, with the appurtenances, to wit, at, &c. (venue); and thereupon heretofore, to wit, on, &c. at, &c. (venue).—[Here state the lease by both tenants in common.] THE TITLE, ACQUIRED. entirety by fee(x). V. THE TITLE, AND HOW ACQUIRED. [State the seisin of the lessor and the lease, as anle, 560, and the lessee's endescent in try, and then proceed as follows :]-And the said defendant being so pos[ *572] sessed as aforesaid, and the said E. F. being so seised of the said reversion as aforesaid, he the said E. F. afterwards, to wit, on, &c. at, &c. (venue) aforesaid, died so seised of the said reversion of and in the said demised tenements, with the appurtenances as aforesaid, whereupon and whereby the said reversion of and in the said tenements, with the appurtenances, then and there descended and came to the said plaintiff, as son and heir of the said E. F. deceased, and thereby he the said plaintiff then and there became, and was, and still is, seised [*573] of the said reversion of and in the said tenements, with the appurtenances, *in his demesne as of fee.-[Then proceed to state the averments of performance of covenants by plaintiff, and defendant's breach, as in other cases.] By marriage(y). And the said C. being so seised, of and in the said reversion in the said demised tenements, with the appurtenances as aforesaid, she the said C. afterwards, to wit, on, &c. at, &c. (venue) aforesaid, took to her husband plaintiff'; by (w) See the form, Winch. 1163; how to describe the demand, de una medietate of the rent, Carth. 289. As to joinder or severance in an action, 5 T. R. 246. (x) It must, in covenant by an heir on the lease of his ancestor, be shown, that the lessor was seised in fee, Gilb. Debt, 408, 9, 10. As to pleading title by descent in general, see 2 Bla. Com. 200 to 240.-Com. Dig. Pleader, 2 E. 1, 2.-Vin. Abr. Heir. See the form, Co. Ent. 708 b.-2 Saund. 418. As to pleading a descent in tail, 1 Saund. 255. The like as co-heirs, Id. ibid. and ante, 570. It may be pleaded that B. is heir to A. without say ing, either that A. is dead, or had no son, 2 Saund. 305 a. n. 13.-2 Lutw. 1172. It must be shown how the plaintiff is heir, whether as son or daughter, grandson, cousin, &c. 2 Saund. 45 a-5 East, 272.-1 Salk. 355; and that he was heir to the person last seised, Co. Lit. 11 b.-Vin. Abr. Heir, L. pl. 14. 15.-1 Stra. 230. In 3 B. & P. 453. it was decided, that in a count on a writ of right, it is not sufficient to state that the lands descended to four women, "as nieces and co-heirs of J, S," without showing how they were nieces. And pleading title as heir to an uncle, he must show how he is heir, and make the father a medi um, viz. that the inheritance descended to him ut consanguineo et hæredi, viz. son of such an one, who is brother and heir to the uncle, 12 Mod. 619. And so in case of a descent from the grandfather, viz, as son and heir to the father, who was son and heir to the grandfather, 12 Mod. 619. But between two brothers a descent is immediate, and title may therefore be made by one brother, or his representatives to or through another brother without mentioning their common father; and the son of one brother may claim as cousin and heir to the son of the other brother, without naming the grandfather, thus, "as son of Francis, who was the brother of John, who was the father of Matthew," 2 Bla. Com. 226.-Vin. n. Ab. Heir, L. 1. pl. 18, &c.-5 East, 272. As to stating descent to the king, 4 Mod. 355. As to pleading a title by descent in a copyhold estate, see 4 Co. 22 b.-Vin. Abr. Copyhold, U. b. When descent traversable, Dyer, 365 b. (y) See the form, 1 Saund. 253. Pleading a seisin in fee tail in husband and wife, by marriage, I Saund. 255.-2 Rich. C. P. 350, 1. Seisin in fee in right of the wife, ante, 561. Tenancy by curtesy by husband's surviving, ante, 563. Sole seisin in wife by her surviving, ante, 570. virtue whereof the said plaintiffs then and there became and were seised of the THE TITLE, said tenements, with the appurtenances, in their demesne as of fee, in right of ACQUIRED the said C. AND HOW And the said E. F. being so seised as aforesaid, he the said E. F. after- By feoffment(z). wards, to wit, on, &c. at, &c. (venue) enfeoffed *the said plaintiff of the said [ *574 ] tenements, with the appurtenances, to have and to hold the same to the said plaintiff and his heirs and assigns, to the use of the said plaintiff, his heirs and assigns for ever; by virtue of which said feoffment, he the said plaintiff then and there became and was seised of and in the said tenements, with the appurtenances, in his demesne as of fee; and being so thereof seised, &c. For that whereas, heretofore, to wit, on, &c. at, &c. (renue) by a certain By lease(a). indenture then and there made between E. F. of the one part, and the said plaintiff of the other part, (which said indenture, sealed with the seal of the said E. F. the said plaintiff now brings here into court, the date whereof is the day and year aforesaid) the said E. F. did demise, lease, set, and to farm let(b) unto the said plaintiff, his executors, administrators, and assigns, a certain messuage or dwelling-house, &c. situate, &c. (except as in the said indenture is excepted.) To have and to hold the said messuage or dwelling-house, &c. with the appurtenances, (except as aforesaid) unto the said plaintiff, his executors, administrators, and assigns, from the day of then last past, to the full end and term of years thence next ensuing, and fully to be complete and ended, [here set out any parts of the lease that may be applicable to the case, and see the form and notes, ante, 449, 550] as by the said indenture, reference being thereunto had, will (amongst other things) more fully and at large appear. By virtue of which said demise, the said plaintiff afterwards, to wit, on, &c. [ *575 ] entered (c) into and upon all and singular the said demised premises, with the appurtenances, and became and was possessed thereof for the said term, so to him thereof granted as aforesaid; and being so possessed, &c. By virtue of which said demise, he the said E. F. afterwards, to wit, on, &c. aforesaid, entered into and upon all and singular the said demised tenements, (z) See the forms, 2 Saund. 9, 20-4 Mod. 355, and the law as to feoffments, 2 Bla. Com. 310 to 316. When feoffment traversable, Dyer, 365 b. A feoffment is not pleaded by deed, 2 Saund. 9, n. 13; and therefore no profert thereof need be made; and the statute of frauds, 29 Car. 2. c. 3, which requires that livery should be accompanied by some instrument in writing, has not altered the form of pleading, 3 T. R. 156.-1 Saund. 9 a. note 1.-Livery of seisin on the feoffment needs not be stated in pleading, Co. Lit. 303 b.-2 Saund. 305 a. n. 13. 1 Saund. 228 b. As to the distinctions between a gift of real property and a feoffment, see 2 Bla. Com. 316, 317. As to the mode of pleading a grant, id. 317. 2 Saund. 96, 297, 327, 8, n. 12. (a) 2 Bla. Com. 317 to 323. Lease for lives, 3 Wils. 129. Demise by the king by indenture enrolled, &c. 1 Saund. 187. When a tenant for life and the remainder-man in fee join in making a lease, it should not be pleaded as a joint lease by both in its inception, for, living the tenant for life, it is only his lease, and the confirmation of the re- (b) These arethe words usually adopted. See (e) It is not necessary to state the entry, 1 Saund. 203, n. 1. As to the interesse termini, ante, 564, note 568, note m. Possession of a term, 2 Saund. 21. Ante, 564, n. (d) 2 Bla. Com. 326-See ante, 564. In an action by the assignee of the reversion, or by the assignee of the tenant, he must state the operative part of the deed of assignment, &c. and all mesne assignments, by virtue of which he is entitled to Assignment the plaintiff (d). of a term to AND HOW THE TITLE with the appurtenances, and became and was possessed thereof for the said ACQUIRED. term so to him thereof granted as aforesaid. And the said E. F. being so possessed thereof, he the said E. F. afterwards, to wit,'on, &c. at, &c. (venue) aforesaid, by his certain deed-poll indorsed on the said indenture, and duly signed by him and sealed with his seal, and which the said plaintiff now brings here into court, the date whereof is the day and year last aforesaid, he the said E. F. for the considerations therein mentioned, did bargain, sell, assign, transfer, and set over, unto the said plaintiff, his executors, administrators, and assigns, [here set out the operative words of the deed of assignment,] as by the said deedpoll, reference being thereunto had, will more fully appear. By virtue of which said deed-poll, the said plaintiff afterwards, to wit, on, &c. last aforesaid, at, &c. (venue) aforesaid, became and was, and from thence hitherto hath been, and still is possessed of the said tenements, with the appurtenances, for the residue of the said term so thereof granted as aforesaid. And although, &c.—[Aver plaintiff's general performance of the lease since the assignment to him of lessee's interest, and the defendant's breach of covenant as in other cases.] Surrender Covenant to stand seised And the said E. F. being so possessed of the said demised tenements, with the appurtenances, as aforesaid, he the said E. F. after the making of the said indenture, and during the continuance of the said term thereby granted, to wit, on, &c. at, &c. (venue) aforesaid, did surrender to the said G. H. the said term of years of him the said E. F. then to come and unexpired, of and in the said demised tenements, with the appurtenances, and all his estate, right, title and interest, of and in the same; which said surrender he the said G. H. then and there excepted. And the said E. F. being so seised, afterwards, to wit, on, &c. at, &c. (venue) to uses(f). by his certain writing then and there made by the said E. F. and sealed with his seal, the date whereof is a certain day and year therein named, to wit, the day and year last aforesaid, he the said E. F. for and in consideration of the natural love and affection which he the said E. F. bore for the said plaintiff, then and there being his [cousin,] did covenant for himself and his heirs, to and with the said plaintiff and his heirs, that he the said E. F. and his heirs, then and from thenceforth for ever, did, would, and should stand and be seised of the said [or," of the said reversion of and in the said"] demised tenements, with the appurtenances, to the use of the said plaintiff his heirs and assigns, for ever, whereupon and whereby, according to the form and effect of the said deed and sue; 1 Saund. 112 b. n. 1. 234, n. 3. But it seems (e) See the form, 1 Saund. 235.-2 Saund. 22. -2 Bla. Com. 326. As to what operates as a surrender, and the mode of pleading it, see 1 Saund. 235, c. n. 9.-6 East, 86.-Com. Dig. Sur render, N. Though since the Statute against frauds, a surrender not merely by operation of law, must be in writing, yet in a declaration it is not requisite to allege that it was in writing, though it may be necessary in a plea; Saund. 276 a. notes 1 and 2.-5 Taunt. 257; and see 6 Bing. 529. (f) As to this conveyance, see 2 Bla. Com. 338. and as to pleading it, 2 Saund. 97 b. c.— Lutw. 1207.-Carth. 307.-3 Lev. 370. AND HOW of the said covenant of the said E. F. and by force of the Statute for trans- THE TITLE, ferring uses into possession(g), he the said plaintiff then and there became and was seised of and in the said demised tenements, with the appurtenances, [or, "of the said reversion,"] in his demesne as of fee. And being so seised, &c. ACQUIRED. sale enrol And the said E. F. being so seised, afterwards, to wit, on, &c. at, &c. (venue) Bargain and by a certain indenture of bargain and *sale then and there made between the led(h). said E. F. of the one part, and one G. H. of the other part, which said inden[ *577 ] ture, sealed with the seal of the said E. F. the said G. H. now brings here into court(i), the date whereof is the day and year aforesaid, and which said indenture of bargain and sale was afterwards, and within six months next after the date thereof, to wit, on, &c. in due manner enrolled in the High Court of Chancery of our lord the now king, at Westminster, in the county of Middlesex, according to the form of the Statute in such case made and provided (k), he the said E. F. for and in consideration of a certain sum of money, to wit, the sum of £—(1) therefore then and there paid by the said G. H. to the said E. F. did bargain and sell (m) to the said G. H. amongst other things, the said demised premises, with the appurtenances; to have and to hold the same to the said G. H. his heirs and assigns, to the only proper use and behoof of him the said G. H. his heirs and assigns for ever; as by the said last-mentioned indenture, reference being thereunto had, will, amongst other things, more fully and at large appear. By virtue of which said bargain and sale, and enrolment, and by force of the Statute, for transferring uses into possession(n), he the said G. H. then and there became and was seised of the reversion of the said *demised premises, with the appurtenances, as of fee, and the said G. H. being [ *578 ] so seised, &c. And the said E. F. being so seised, [or, "so seised of the said reversion"] Lease and release(o). as aforesaid, afterwards, to wit, on, &c. at, &c. (venue) aforesaid, by a certain indenture of bargain and sale then and there made between the said E. F. of the one part, and the said plaintiff of the other part, which said indenture, sealed with the seal of the said E. F. the said plaintiff now brings here into court, the date whereof is a certain day and year therein mentioned, to wit, the day and year (g) See post, 577, n. (1). (h) The nature of this conveyance is described in 2 Bla. Com. 338, and 1 Saund. 251, n. 2; see the forms, 1 Saund. 251, 2. 256.-2 Saund. 275, 297 c.-Id. 11. The bargain and sale, in Outram v. Morewood, 3 East, 346, was pleaded as in this precedent. (i) It has been supposed not to be necessary to make a profert of deeds, operating under the Statute of Uses, 8 T. R. 573.-1 Saund. 9, n. 1; but the safer course is to make a profert, and which seems necessary where the party pleading has a right to the possession of the deeds. (k) By 27 Hen. 8. c. 16. bargains and sales shall not enure to pass a freehold, unless the same be made by indenture, sealed and enrolled within six months after the date thereof, in one of the courts at Westminster, or with the Custos Rotulorum of the county.-2 Bla. Com. 338. 1 Saund. 251, n. 2. It is necessary to show in what court the deed is enrolled, Saund. 251, n. 3.-Com. Dig. "Bargain and Sale," b. 12. This regula- (1) In pleading a conveyance under the Statute (m) The operative words are so pleaded in 2 Saund. 275, which is more correct than the form in 1 Saund. 251.-See also 2 Saund. 97 c. (n) The 27 Hen. 8. c. 10. is always called in pleading "the Statute for transferring uses into possession."-1 Saund. 151, n. 2.-2 Saund. 97 c. (0) 2 Bla. Com. 339.-See forms, 2 Saund. 10. 275.-Lutw. 567.-3 Wils. 134.-Lil. Ent. 136. As to the mode of pleading the lease for a year, see 2 Saund. 10, n. 15. Lease by husband and wife, 2 Saund. 180 b. AND HOW [ *579 ] Release(t). THE TITLE, last aforesaid(p), he the said E. F. for and in consideration of a certain sum ACQUIRED. of money, to wit, the sum of 5s. then and there therefore paid by the said plaintiff, to the said E. F. did bargain and sell the said [or, "the said reversion of and in the said"] demised tenements, with the appurtenances, to the said plaintiff, to have and to hold the same to the said plaintiff, his executors, administrators, and assigns, from the day next before the day of the date of the said last-mentioned indenture, for the term of one whole year from thence next ensuing, and fully to be complete and ended; as by the said indenture, reference being thereunto had, will (amongst other things) more fully and at large appear(q). By virtue of which said last-mentioned indenture, and by force of the Statute made for transferring uses into possession (r), the said plaintiff then and there became and was possessed of the said tenements, with the appurtenances, for the said term so to him thereof granted, as aforesaid, [or, if the conveyance was of a reversion expectant on the expiration of a lease for years, insert, after the word "possession," as follows, "the said reversion of and in the said demised tenements, with the appurtenances, became and was vested(s) in the said A. B. for the said term so to him thereof granted as aforesaid."] the reversion [or, if expectant on a lease," the further reversion,"] thereof, with the appurtenances, belonging to the said E. F. his heirs and assigns. And the said plaintiff, being so interested as aforesaid, and the said defendant, being so possessed of the said demised premises for the residue of the said term so to him thereof granted as aforesaid, afterwards, to wit, on, &c.(u) at, &c. (venue) aforesaid, by a certain indenture of release then and there made between the said E. F. of the one part, and the said plaintiff of the other part, and which said last-mentioned indenture, sealed with the seal of the said E. F. the said plaintiff now brings here into court, the date whereof is the day and year last aforesaid (w), he the said E. F. for and in consideration of a certain sum of money, to wit, the sum of £— then and there paid to him by the said plaintiff, did grant, bargain, sell, alien, release, and confirm(x) unto the said plaintiff and his heirs, the said demised premises, with the appurtenances, to have and to hold, &c.-[Set out the habendum as in the deed.] By virtue of which said last-mentioned indenture, and by force of the Statute made for transferring uses into possession(y), afterwards and during the continuance of the said term by the said first-mentioned indenture granted, to wit, on, &c. aforesaid, at, &c. (venue) aforesaid, he the said plaintiff became, and [ *580] was, and from thence *hitherto hath been, and still is, seised in his demesne as of fee, [or, "of and in the said reversion"] of and in the said demised tenements, with the appurtenances. (p) It has been considered that no profert need be made of the lease or release, see ante, 577, n. a. -9 J. B. Moore, 593; but vide Lil. Ent. 136.-3 Wils. 134, and 2 Saund. Rep. 10, 11, where there is a profert. (q) This is not necessary. (r) This allegation in the old way of pleading was omitted, but it is now always inserted, 2 Saund. 10, n. 1, 15.-Supra, note(n). (s) See the opinion of Mr. Booth, in Cases and Opinions, vol. ii. 143 to 149. tit. "Reversion," edit. 1791, as to the effect of a conveyance by lease and release, of a reversion expectant on a term, and the mode of pleading such conveyance, and see Co. Lit. 270 a. note 3.-4 Cruise, 199; from which it appears to be incorrect to plead, that the lessor was possessed of the reversion. (t) See forms, 2 Saund. 11, 276, 7.-Lutw. 568. (u) As to the date of lease and release, 2 M. & S. 434. (w) As to the profert, see ante, 577, n. (i). (x) As to the proper words to be here inserted, 2 Saund. 97, a. b. c. and the forms, ibid. 11, 276, 277. Quære as to using all these words, see l Chit. Rep. 67. (y) ante, 578, n. (o); ante, 577, note(i). |