It operates as to the disscisor, as a confirmation, 521.--III. Confirma- tion, by and to whom to be made, ib.--Confirmation by the donor to the lessee for years of his tenant for life, is good, (though a releasé would be void), ib.-Confirmation by the disseisee to his disseisor's lessee for years is good, (secus as to a release), 522.—Confirmation by infant lessor at full age to the lessee of his tenant for years, is good, (secus as to a release), 523.--Confirmation by patron and ordinary of a grant of rent-charge by a parson, was good, (at common law), ib.— Diversities as to confirmation of grants by ecclesiastical persons, at common law, 524, 5.--Diversity between a confirmation of an estate, and a confirmation of a deed, 526.--Confirmation by donor of a grant of rent-charge made by his tenant for life, is good, 527.-Diversity herein where the determination of the rent is expressed in the deed, and when it is implied in law, ib.-IV. Confirmation, how it shall enure, ib.-When to the whole estate of the confirmee, ib.-On confirmation by disseisee to disseisor of his estate, it enures in fec, though without words of inheritance, 528.—and although made in tail, or for life only, ib.-or but for an hour, ib.-On confirmation to dissei- sor's donee in tail of his estate for his life, it enures to the whole estate tail, ib.-Diversity herein between the confirmation of a term for years, and that of an estate of freehold, ib.-In respect of other persons, 529. On confirmation of the estate of the particular tenant, it does not enure to the remainder-man, (secus as to a release) ib.-On confirma- tion of the estate of one joint-tenant, it enures to both, 530.-On con- firmation of the estate of the remainder-man, or reversioner, it enures to the particular tenant, 531.-On confirmation of the estate of one of two disseisors, it enures to both, (though otherwise of a release) 532.— Secus if the habendum be to hold the land to him and his heirs, ib.- When it enures to enlarge the estate of the confirmee, 533.-On confir- mation of one joint-tenant of the estate of his companion, his estate is not enlarged, ib.-Secus if the habendum be to hold the tenements to him and his heirs, ib.-On confirmation of the estate of tenant for life, habendum his estate to him and his heirs, his estate is not enlarged, ib. Secus if it be to hold the land to him and his heirs, 534.-On confir- mation to baron and feme lessee for life, for their lives, the husband's estate is enlarged by way of remainder for life, if he survive, 534.— So if made to him and his heirs, it cnures to him in fee after her decease, 556. But on confirmation to them and their heirs, it enures to them jointly in fee, and the husband is seised in right of his wife for her life, ib.-On lease to husband and wife to hold one moiety to him for life, and the other moiety to her for life, a confirmation to them and their heirs enures to him in fee as to his moiety, and to them jointly as to the other moiety, ib.—But on such lease and confirmation to two men, they are tenants in common of the inheritance, ib.-So if the lessor confirms to his lessee for life and remainder-man for life, to hold to them and their heirs, ib.—or where, after a gift in special tail to two men, the donor confirms to them and their heirs, 537.-On confirmation to baron and feme lessee for years, for their lives, it enures to them jointly for life, 537.-On confirmation to tenant for years, to hold the land for his life, &c. his estate is enlarged for life, &c. 538.-Secus if the confir mation be of his estate without saying more, 539.—Diversity herein in the case of a release, ib.—Confirmation of a grant of a rent newly created, to hold to the grantee in fee, is void to enlarge his estate, ib. Secus in the case of a rent-service or rent-charge in esse, 540.-V. Con- firmation of a rent-charge not avoided, though the estate out of which it issued be afterwards defeated by the entry of the confirmor, 541.- or by his recovery in an action, ib.-VI. Confirmation does not give distinct rights, 542.—On confirmation by the lord of the estate of his tenant, yet the seignory remains, ib.-So in the case of a confirmation of the estate of the tenant by the grantee of a rent-charge, or common, yet the rent-charge, or common, remains, ib.-Diversity herein in the case of a release, ib.—VII. Confirmation does not extinguish a right in suspence, 543.—VIII. On confirmation by the lord to his tenant, the services may be abridged, but new services cannot be reserved, ib. Privity necessary to a confirmation abridging services, 544 to 547.— IX. Confirmation of a void estate, is void, 547.—Where a person takes away a villain in gross from his owner, a confirmation to him of his es- tate in the villain, is void, ib.-Diversity herein in the case of a vil lain regardant to a manor, 548.—or where the deed of confirmation enures by way of grant, 549.-Confirmation of estate of lessee for Definition of a surrender, 551.—The different kinds of surrender, 552.— 1. Surrender in deed, 553.—Might be by parol (at common law), and livery of seisin not requisite, ib.-But a surrender of things in grant must be by deed, ib.-Surrender must be of an actual estate, and not of a mere right, ib.—II. Surrender in law, 554.-Lease for years to begin at a future day, is not merged by a surrender in deed, before the day, ib.-Secus as to a surrender in law by acceptance of a new lease, ib.-On lessee's acceptance of a new lease on condition, by breach whereof it becomes void, yet the surrender in law of the old lease is absolute, 555.—So in case the lessee accepts a grant of the reversion on condition, &c. ib.-Diversity herein when the lessee surrenders on condition, ib.-On guardian in chivalry taking a feoffment of the in- fant, though it be void, his interest is surrendered in law, ib.—On lease for years by the master of an hospital sole seised, &c. the lessee being afterwards made master, the term is merged, 556.—So in case of lessee for years marrying the feme lessor, ib.-Secus where a man lessor marries the feme lessee, ib.-or where the lessee makes the lessor his executor, 557 to 562.-or in case of lessee for years, under a corpo- fation aggregate of many, being made master, 563.-III. Effect of a surrender, 563.-On a surrender, the estate, as between the parties, is absolutely determined, ib.-Secus as to strangers, 564.-unless it be for their advantage, 565.—Of a bond, 566 to 569. CHAP. XLIII. SAME SUBJECT. Of Conveyances under the Statute of Uses, &c. Definition of an use at common law, 570.-Cannot be two uses in esse of the same land, 571 to 577.—On what conveyances uses may be raised, 578.—On feoffment to future uses, the use results to the feoffor in the mean time, 579 to 582.—So where the feoffor disposes of the profits for a particular time in præsenti, the use of the inheritance is in him, as a thing undisposed of, 583 to 586.-By stat. 27 H. 8. all uses are transferred into possession, 587 to 589.—Diversity as to the passing of the estate, between a feoffment to the intent to perform feoffor's last will, and where it is to the use of such persons and such estates as he shall appoint by will, 590 to 603. CHAP. XLIV. Of Alienation by Matter of Record. Definition and nature of a fine, 604 to 612.-Fine by tenant in tail, a bar to the issue: secus as to the remainder-man, or reversioner, if he enter within five years after his right accrued, 613.—Tenaut in tail being disseised, or having a right of action, a fine by the tenant of the land, after five years, bars the right of the estate-tail, ib.-Definition of a common recovery, 613 to 615.-The different kinds, 616.—Nature and operation of a common recovery, 617.-Common recovery by tenant for life, no bar to the remainder-man, or reversioner, ib.-Secus as to a common recovery by tenant for life, with the concurrence of tenant in tail, ib.-Common recovery by tenant in tail in possession, is a bar to all remainders and reversions, 618.-and to the estate tail, ib.-Secu as to a common recovery (or fine) by tenant in tail of the king's gift, the reversion or remainder being in the crown, ib.-Construction of stat. 34 H. 8. c. 20., 619 to 623.-Recovery suffered by tenant in tail without voucher, no bar of an estate tail, 623. CHAP. XLV. Of Alienation by Special Custom. Alienation by surrender, the proper mode of conveying copyhold estates, 624.-or customary freeholds, ib.-Form of the surrender, 625.-Who may take surrenders, 626.-Lord of a manor pro tempore may take surrenders, 627.-The lord may take surrenders out of court, 628.— Steward of a manor, his office and duties, 629.-How appointed, ib.Surrender by custom may be made to the bailiff, or to two tenants of the 1 manor, out of court, 630.-Such surrender made out of court must be presented at the next court, ib.-On presentment at the next court the surrender is good, though the surrenderor die in the mean time, ib.Effect of a surrender and admission, 632.-The surrenderee is in by the surrenderor, and the lord is a mere instrument, ib.-On surrender, the limitation of the use being general, the surrenderee has but an estate for life, 633.-Surrender out of court by one joint-tenant to the use of his will, with presentment (after his death) at the next court, enures as a severance of the jointure by relation, ib.-Custom to surrender need not be alleged in pleading, unless surrender made to the steward, &c. out of court, 634, 5. CHAP. XLVI. Of Alienation by Devise. Definition and etymology of the word "devise," 636.--How distinguished from a testament, ib.--At common law, no lands were deviseable except by custom, ib.--Alteration in the common law herein, by stat. 32 & 34 H. 8. 637 to 639.--Devise by custom, not taken away by these statutes, 640, 1.--What devises good under the stats. of wills, 642 to 645.--On devise of lands, the freehold in law is in the devisee before entry, 645.--Construction of devises, 646.-Where there are several wills, or two inconsistent devises, the last only shall stand, 646 to 652. A NEW ARRANGEMENT OF THE FIRST INSTITUTE. BOOK II. OF THE LAW OF TENURES AND REAL PROPERTY. CHAP. XXVII. OF ESTATES UPON CONDITION. 201 a. LITTLETON, having before spoken of estates absolute, Nature of conditions. now beginneth to entreat of estates upon condition (A). And a Glanv. lib. 10. cap. 8. & 17. Bracton, lib. 2. ca. 5. 6. 7, &c. lib. 4. fol. (A) Estates upon Condition, as Sir William Blackstone justly remarks, 213. Brit. cap. 36. & are more properly qualifications of other estates, than a distinct species fol. 89. 99. 114. 130. of themselves. Any quantity of interest, either a fee-simple, a freehold, 205. 206. 207. 249. er a term for years, may be granted with an express condition annexed, Fleta, lib. 3. cap. 9. whereby an estate may be created, enlarged, or defeated upon an un- & lib. 5. cap. 5. certain event. Where the condition must be performed before the estate Mirr. cap. 2. sect. 15. can commence, it is called a condition precedent; but where the effect of a condition is either to enlarge or defeat an estate already commenced, it is called a condition subsequent. Thus, if an estate be limited to A. upon his marriage with B., the marriage is a precedent condition, and till that happens no estate vests in A. Show. Parl. Ca. 83. Or if a man make a lease of land to I. S. for ten years, provided that if he pay the lessor 101. at Michaelmas, he shall have the land to him and his heirs; this is also a condition precedent, and must be fulfilled ere the estate can take effect. Shep. T. 17. But where a lease is made for years, on condition that the lessee shall pay 10l. to the lessor at Michaelmas, or else his lease shall be void, this is a condition subsequent; for here the estate is executed, but the continuance thereof depends upon the breach or performance of the condition. Ibid. So if a man grant an estate in feesimple, reserving to himself and his heirs a certain rent, and that, if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed. Post, 201 a. Conditions precedent, which are to create an estate, receive a liberal construction; and if the condition is performed as near to the intent as possible it will be suffi cient; but it is a rule that conditions which defeat estates are to be constructed strictly. Post, 220 a. Rol. Abr. 438. And such conditions can only be reserved to the feoffor, donor, or lessor, and their heirs, and not to a stranger; for it is a maxim of law, as Lord Coke hereafter observes, that nothing which lies in action, entry, or re-entry, can be granted VOL. II. B |