with proclamations according to the statute, this is a bar to the estate tail, but not to him in reversion or remainder, if he maketh his claim or pursue his action within five years after the state tail spent (o 1). (a) If tenant in tail in possession, or that bath a right of entry, be attainted of high treason, the estate tail is barred, and the land is forfeited to the king; and none of these were barred when Littleton wrote. A lineal warranty and assets was a bar to the estate tail when Littleton wrote; whereof more shall be said hereafter. tatum's case. (b) A common recovery with a voucher over, and a judg- (b) 12 E. 4. 19. Tal, ment to recover in value, was a bar of the estate tail when Littleton wrote. (c) If the king had made a gift in tail, and the donee had (c) 33 H. 8. Taile. Br. 41. Pl. Com. fol suffered a common recovery, this should have barred the estate 555, 29 H. 3. Dier tail in Littleton's time, but not the reversion or remainder in 52. the king. And so, if such a donee had levied a fine with proclamations after the statute of 4 H. 7., this had barred the estate tail, although the reversion was in the king (40). (d) But (d) 34 H. 8. cap. 20, since Littleton wrote, a common recovery had against tenant in tail of the king's gift, or such a fine levied by him, the reyersion continuing in the crown, is no bar to the estate tail by the statute of 34 H. 8. (p 1). A recovery in a writ of right against tenant in tail, without a voucher, is no bar of any gift in tail. If tenant in tail, the remainder over in fee, cesse, and the lord recover in a cessavit, this shall not bar the estate tail, for the issue shall recover in a formedon; neither were either of these bars when Littleton wrote, But let us now hear Littleton. (40)29 H. 8. Dy. 32. accord. tail barred, but not discontinued, because the reversion is in the king: so note the issue is barred by 4 H. 7. Hob. 382, for 32 H. 8. cap. 36, was not then made. Note also, that (01) See post, Chap. 44. Of Alienation by Matter of Record.-[Ed.] (P1) As to the construction of this statute, sce post, Chap. 44.-[Ed.] 373 a. 33 E. 3. Judgment F. N. B. 154 b. Pl. 95. F. N. B. 281. LITTLETON. On discontinuance with warranty by eldest coparcener in tail, the warranty is collateral, and a bar (ut common law) to the youngest coparcener as to her own moiety: ALSO, if the tenant in tail hath issue two daughters, and [Sect. 710. 373 b.] dieth, and the elder entereth into the whole, and thereof maketh a feoffment in fee with warranty, &c. and after the elder daughter dieth without issue; in this case the younger daughter is barred as to the one moiety, and as to the other moiety she is not barred. For as to the moiety which belongeth to the younger daughter, she is barred, because as to this (41) part she cannot convey the descent by means of her elder sister, and therefore, as to this moiety, this is a collateral warranty. But as to the other moiety, which belongeth to her elder sister, the warranty is no bar to the younger sister, because she may convey her descent as to that moiety which belongeth to her elder sister by the same elder sister, so as to this moiety which belongeth to the elder sister, the warranty is lineal to the younger sister. secus as to the other moiety. 373 b. (Ante, 189 a. Post, 243 b.) See in the sect. 398. "And the elder entereth into the whole, and thereof maketh a feoffment, &c." Here it is to be understood, that when one Chapter of Descent, coparcener doth generally enter into the whole, this doth not devest the estate which descendeth by the law to the other, unless she that doth enter claimeth the hole, and taketh the profits of the whole; for that shall devest the freehold in law of the other parcener. *374 a. Otherwise it is after the parceners be actually seised, the taking of the whole profits, or any claim made by the one, cannot put the other out of possession without an *actual putting out or disseisin (o 1.). And in this case of Littleton, when one coparcener entereth into the whole, and maketh a feoffment of the whole, this devesteth the freehold in law out of the other coparcener. Now seeing the entry in this case of Littleton devested not the estate of the other parcener, if no further proceeding had been, then it is to be demanded, that seeing the feoffment doth work the wrong, and be the wrong either a disseisin, or in nature of an abatement, how can the warranty annexed to (41) part-moyte que affiert luy, L. and M. and Roh, (Q1) See ante, vol, 1. p. 681. n. (C).—[Ed.] Pl. Com. 543. 377 a.) that feoffment that wrought the wrong be collateral, or bind the youngest sister for her part? To this it is answered, that when the one sister entereth into the whole, the (5 Rep. 51. Ante, possession being void, and maketh a feoffment in fee, this act subsequent doth so explain the entry precedent into the whole, that now by construction of law she was only seised of the whole, and this feoffment can be no disseisin, because the other sister was never seised; nor any abatement, because they both made but one heir to the ancestor, and one freehold and inheritance descended to them. So as in judgment of law the warranty doth not commence by disseisin, or by abatement, and without question her entry was no intrusion. (Sect. 398. Post, 393 b.) Tenant in tail hath issue two daughters, and discontinueth in fee, the youngest disseiseth the discontinuee to the use of herself and her sister, the discontinuee ousteth her, against whom she recovereth in an assise, the eldest agreeth to the disseisin, as she may, against her sister, and become jointtenant with her. And thus is the book in the 21 Assise (e) (e) 21 Ass. p. 19. to be intended, the case being no other in effect; but A. (Ante, 180.) disseiseth one to the use of himself and B.; B. agreeth; by this he is joint-tenant with A. "Hath issue two daughters." If husband and wife, tenants 373 b. Lib. 8. fol. 41. Sym's case. (10 Rep. 95.) in special tail, have issue a daughter, and the wife die, the 5 E. 2. Garr. 78. husband by a second wife hath issue another daughter, and discontinueth in fee and dieth; a collateral ancestor of the daughters releaseth to the discontinuee with warranty, and dieth, the warranty descendeth upon both daughters, yet the issue in tail shall be barred of the whole; for in judg ment of law the entire warranty descendeth upon both of (2 Cro. 217, 218.) them (RJ). (Post, 367 b) [Sect. 713. 374b.] Warranty of tenant in tail's vife to his discon ALSO, if land be given to a man, and to the heirs of his LITTLETON. body begotten, who taketh wife, and have issue a son between them, and the husband discontinues the tail in fee, and dieth, and after the wife releaseth to the discontinuee in fee with warranty, &c. and dieth, and the warranty descends to the son, this is a collateral warranty. (R1) Supia, p. 282. n. (N 1.)-[Ed.] tinuee, a collateral war ranty and bar (at common law) to the issue: 374 b. LITTLETON. secus where the hus band and wife were tenants in special tail. 187 a.) This case standeth upon the same reason that divers other formerly put by our author do, viz. that because the heir claimeth only from the father per formam doni, and nothing from the wife, that therefore the warranty of the wife is collateral, and the warranty made by any ancestor male or female of the wife bindeth (s 1); and here the warranty descendeth after the descent of the right. BUT if lands be given to the husband and wife, and to [Sect. 714. 375 a.] the heirs of their two bodies begotten, who have issue a son, and the husband discontinue the tail and dieth, and after the wife release with warranty and dieth, this warranty is but a (9 Rep. 143a. Ante, lineal warranty to the son; for the son shall not be barred in this case to sue his writ of formedon, unless that he hath assets by descent in fee-simple by his mother, because their issue in the writ of formedon ought to convey to him the right as heir to his father and mother of their (42) two bodies begotten per formam doni; and so in this case the warranty of the father and the warranty of the mother are but lineal warranty to the heir, &c. 375 a. 35 E. 3. tit. Garr. 73. (2 Rol. Abr. 741. Ante, 187 a. Sect. 25.) LITTLETON. [Sect. 715. 375 a.] Here is a point worthy of observation, that, albeit in this case the issue in tail must claim as heir of both their bodies, yet the warranty of either of them is lineal to the issue; and yet the issue cannot claim as heir to either of them alone, but of both. If lands be given to a man and to a woman unmarried, and the heirs of their two bodies, and they intermarry, and are disseised, and the husband release with warranty, the wife dieth, the husband dieth, albeit the donees did take by moieties, yet the warranty is lineal for the whole, because, as our author here saith, the issue must in a formedon convey to him the right as heir to his father and his mother of their two bodies engendered: and therefore it is collateral for no part. AND note, that in every case where a man demandeth (42) deux, not in L. and M. nor Roh. (S1) Supra, p. 282. n. (N 1).—[Ed.] lands in fee tail by writ of formedon, if any of the issue in tail that hath possession, or that hath not possession, make a warranty, &c. if he which sueth the writ of formedon might by any possibility, by matter which might be en fait, convey to him by him that made the warranty per formam doni, this (43) is a lineal *warranty, and not collateral. *375 b. 375 b. Of this sufficient hath been said before, sed nunquàm nimis dicitur quod nunquàm satis dicitur; for it is a point of 35 E. 3. Garr. 73. great use and consequence. eldest son, remainder to the other sons, the warranty of the eldest son, on his discontinuing the estate-tail, is collateral, and a bar to the other sons : (Vaugh. 377.) (8 Rep. 51.) ALSO, if a man hath issue three sons, and giveth land LITTLETON. to the eldest son, to have and to hold to him and to the heirs of [Sect. 716. 375 b.] his body begotten, and, for default of such issue, the remain- On gifi in tail to the der to the middle son, to him and to the heirs of his body begotten, and, for default of such issue (44) of the middle son, the remainder to the youngest son, and to the heirs of his body begotten; in this case, if the eldest (45) discontinue the tail in fee, and bind him and his heirs to warranty, and dieth without issue, this is a collateral warranty to the middle son, and shall be a bar to demand the same land by force of the remainder; for that the remainder is his title, and his eldest brother is collateral to this title, which commenceth by force of the remainder. In the same manner it is, if the middle son hath the same land by force of the remainder, because his eldest brother made no discontinuance, but died without issue of his body, and after the middle make a discontinuance with warranty, &c. and dieth without issue, this is a collateral warranty to the youngest son. And also in this case, if any of the said sons be disseised, and the father that made the gift, &c. releaseth to the disseisor all his right (46) with warranty (47), this is a collateral warranty (Vaugh. 367. 377.) to that son upon whom the warranty descendeth, causâ quâ suprâ. AND so note, that where a man that is collateral to the LITTLETON. title, (48) and releaseth this with warranty, &c. this is a col- [Sect. 717. 376 a.] lateral warranty. (43) &c. added in L. and M. and Roh. (44) del muines, not in L. and M. nor Roh. (45) fits, added in L. and M. and Rob. (46) c. added in L. and M. and Roh. (47) &c. added in L. and M. and Roh. (48) &c. added in L. and M. and Roh. |