service is put in suspence during the coverture. But if the wife die living the husband, the husband and his heirs shall have the rent of them in the remainder, &c. And in this case there needeth no attornment by parol, &c. for that the husband, which ought to attorn, accepted the deed of grant of the services, &c. the which acceptance is an attornment in the law. "The which acceptance is an attornment in the law, &c." Littleton having spoken (as hath been said) of attornments in deed, or express, now cometh to speak of attornments in law, or implied; and having before set down five express attornments in deed, doth in this chapter enumerate seven attornments in law. Here it is to be understood, that the express attornment of the husband will bind the wife after the *coverture, and inasmuch as this acceptance of the grant is an attornment in law, without a word of attornment the seignory shall pass. And this is the first example, that Littleton putteth of an attornment in law, which amounteth to an express attornment, for that it is an agreement to the grant. If the lord grant his seignory to the tenant of the land, and to a stranger, and the tenant accept the deed, this acceptance is a good attornment to extinguish the one moiety, and to vest the other moiety in the grantee, as hath been said. IN the same manner is it, if there be lord and tenant, and the tenant taketh wife, and after the lord grant the services to the wife and her heirs, and the husband accepteth the deed; in this case, after the death of the husband, the wife and her heirs shall have the services, &c. for by the acceptance (13) of the deed by the husband, this is a good attornment, &c. albeit during the coverture the services shall be put in suspence, &c. Here is the second example that Littleton putteth of an attornment in law, and standeth upon the former reason. "Shall be put in suspence." Suspense cometh of suspendeo, and in legal understanding is taken when a seignory, rent, profit apprender, &c. by reason of unity of possession of the seignory, rent, &c. and of the land out of which they (13) del fait per, not in L. and M. nor Roh. LITTLETON. So if the tenant made a the services were grant ad to the lessee for life, his acceptance of the deed was an attorn issue, are not in esse for a time, et tunc dormiunt, but may be revived or awaked. And they are said to be extinguished when they are gone for ever, et tunc moriuntur, and can never be revived; that is, when one man hath as high and perdurable an estate in the one as in the other (R). ALSO, if there be lord and tenant, and the tenant grant ́ [Sect. 560. 313a.] the tenements to a man for term of his life, the remainder lease for life, remainder to another in fee, if the lord grant the services to the tenant to another in fee, and for life (14) in fee, in this case the tenant for term of life hath a fee in the services; but the services are put in suspence during his life. But the heirs (15) of the tenant for life shall have the services after (16) his decease, &c. (17). And in this case there needeth (18) no attornment, for by the acceptance of the deed by him which ought to attorn, &c. this is an attornment of itself (19). ment in law. (In which suspended for life only: case the services were $13 a. (Siderf. 25.) *313b. Here is the third case that Littleton putteth of an attornment in law. And it is to be observed, that albeit a grant, as hath been said, may enure by way of release, and a release to the tenant for life doth work an absolute extinguishment, whereof he in the remainder shall take benefit, yet the law shall never make any construction against the purport of the grant to the prejudice of any, or against the meaning of the parties, as *here it should; for if by con (14) enfee not in L. and M. nor Roh. (15) le tenant a terme de vie, not in L. and M. nor Roh. (16) son, not in L. and M. nor Roh. (17) &c. not in L. and M. nor Roh. (18) ascun, added in L. and M. and Roh. (19) &c. added in L. and M. and Roh. (R) Suspension is a partial extinguishment, or extinguishment for a time. Extinguishment is the annihilation of a collateral thing or subject, in the subject itself out of which it is derived: as in the instances here put of a seignory, rent, &c. Suspension is merely for a time, because the party whose interest is to be suspended, has a particular estate; or because he has a defeasible interest, so that the subject itself, or the estate therein, may revive, when there shall be a separation of these interests, which, if they were absolutely united, would be extinguished. These two acts of law differ from merger, which is the annihilation of one estate in another. That the estate in the seignory, rent, or common, ceases, is the consequence of the extinguishment of the subject itself. When the subject ceases, the estate therein must also cease. Under the doctrine of merger the subject may continue after the annihilation of one estate in another; for, notwithstanding the annihilation of the estate, the subject continues, and the effect of the merger is only to involve the time of one estate in the time of another estate, or, at the utmost, to accelerate the right of possession under the more remote estate. Thus suspension and extinguishment, correctly taken, are applicable rather to the things themselves, than to the estates or degrees of interest therein. 3 Prest. Conv. 9-11.-[Ed.] struction it should enure to a release, the heirs of the tenant for life should be disherited of the rent; and therefore Littleton here saith, that the heirs of the grantee shall have the seignory after his death. And here is an attornment in law to a grant suspended that cannot take effect in the grantee so long as he liveth, but shall take effect in his heirs by descent; for the inheritance of the seignory was in the tenant for life, and the suspension only during his life. BUT where the tenant hath as great and as high estate in the tenements as the lord hath in the seignory; in such case, if the lord grant the services to the tenant in fee, this shall enure by way of extinguishment. Causa patet. Here Littleton intendeth not only as great and high an estate, but as perdurable also, as hath been said; for a disseisor or tenant in fee upon condition hath as high and great an estate, but not so perdurable an estate, as shall make an extinguishment. ALSO, if there be lord and tenant, and the tenant maketh a lease to a man for term of his life, saving the reversion to himself, if the lord grant the seignory to tenant for life in fee, in this case it behoveth that he in the reversion must attorn to the tenant for life by force of this grant, or other wise the grant is void, for that he in the reversion is tenant to the lord, &c. (20) Yet he shall not hold of the tenant for life, during his life. Causa patet, &c. "Yet he shall not hold, &c." This is added, and not in the original, and is against law, and therefore to be rejected. LITTLETON. [Sect. 561. 313b.] held in fee-simple). secus where the grantee 313 b. LITTLETON. [Sect. 562. 313 b.] But where the tenunt made a lease for life, saving the reversion to himself, his attornment was necessary to a grant of the seiguory to the lessee for life. *S14 a. 313 b. Here in this case he in the reversion of the tenancy must attorn, because he is the tenant to the lord; and yet the (In which case the seignory was suspended seignory shall be suspended during the life of the grantee, during the grantee's because he hath an estate for life in the tenancy, but his heirs life). shall enjoy the seignory by descent (s). (20) This paragraph not in L. and M. nor Roh. (S) If a disseisor makes a lease for life, the remainder in fee, and the disseisee releases to the tenant for life, this shall enure to him in the re (e) 34 Ass. p. 15. "Tenant to the lord, &c." Here is to be understood a diversity, when the whole estate in the seignory is suspended, and when but part of the estate in the seignory is suspended. And in this case the seignory is suspended but for term of life; (e) and therefore as to all things concerning the right it hath his being; but as to the possession during the particular estate the grantee shall take no benefit of it; therefore during that time he shall have no rent-service, wardship, relief, heriot, or the like, because these belong to the posses16 E. 3. tit. Voucher sion: but if the tenant dieth without heir, the tenancy shall 88. 5 E. 3. Twong's case. (Post, 298 b.) LITTLETON. escheat unto the grantee, for that is in the right; and yet when the seignory is revived by the death of the tenant, there shall be wardship: as if the tenant marry with the seignoress and dieth, his heir within age, the wife shall have the wardship of the heir. Also in the case that Littleton here putteth, albeit the seignory be suspended but for life, yet some hold that he cannot grant it over, because the grantee took it suspended, and it was never in esse in him. But if the tenant make a lease for years, or for life, to the lord, there the lord may grant it over, because the seignory was in esse in him, and the fee-simple of the seignory is not suspended. But if the lord disseise the tenant, or the tenant enfeoff the lord upon condition, there the whole estate in the seignory is suspended, and therefore he cannot during the suspension take benefit of any escheat, or grant over his seignory (T). ALSO, if there be lord and tenant, and the tenant holdeth [Sect. 563. 314 a.] of the lord by twenty manner of services, and the lord grant Payment of part of the services, was a good attornment in law for the whole. mainder, because the release cannot alter the notoriety of the feudal feoffment, post, 276 a.; but the release of the feudal lord to the tenant for life, did not enure to him in the remainder, because the feudal feoffment was not prejudiced, but stood in full force, whether it enured one way or the other, and therefore it was held to enure exclusively to the benefit of him that purchased such seignory. But in the case of tenant for life, the reversion in fee, if the lord granted the services to the tenant for life, it was necessary that the reversioner should attorn, because he held of the lord: such attornment, however, made no alteration in the tenure of the estate for life, nor in the least degree discharged the tenant from his fealty and services. But the tenure, which the tenant for life purchased, was suspended, during the continuance of the estate for life, as to all the possessory fruits of such tenure; for he could not exercise the prerogatives of a lord over one to whom he owed fealty, and therefore he could have no wardship, marriage, or relief, of the rever sioner: but, if the reversioner died without heir, the reversion escheated to the grantee, because that is in the right. Infra, 314 a. Gilb. Ten. 87, 88.-[Ed.] (T) For the lord by the common law, in the first case, and by the statute of quia emptores, in the second, holds of the next superior lord, and he has no seignory distinct from the land itself. Gilb. Ten. 88.[Ed.] his seignory to another; if the tenant pay in deed any parcel of any of the services to the grantee, this is a good attornment, of and for all the services, albeit the intent of the tenant was to attorn but for this parcel, for that the seignory is (21) entire, although there be divers manner of services which the tenant ought to do, &c. Here it appeareth that an attornment being made for parcel, is good for the whole; for seeing he hath attorned for part, it cannot be void for that, and good it cannot be unless it be for the whole: but of this sufficient hath been said before in this Chapter, "Pay any parcel of the services, &c." Here is the fourth 40 E. 3. 34. (4 Rep. example of an attornment in law; for payment of any 8.) parcel of the services is an agreement in law to the grant. ALSO, if there be lord and tenant, and the tenant holdeth LITTLETON. of the lord by many kind of services, and the lord graut the [Sect.564. 314b.] services to another by fine; if the grantee sue a scire facias out of the same fine for any parcel of the services, and hath judgment to recover, this judgment is a good attornment in law for all the services (22). Here is to be observed, that this judgment in the scire facias (which is no more but that the demandant shall have execution, &c.) is a good attornment, albeit, it is presumed that judicium redditur in invitum, and that an attornment in law of any part is good for the whole. And this is the fifth example that Littleton putteth of an attorument in law. ALSO, if a man let land to another for his life, and after he confirm by his deed the estate of the tenant for life, the remainder to another in fee (of this sufficient is said in the Chapter of Confirmation, sect. 525.), and the tenant for life accepteth the deed, then is the remainder in fait in him to whom the remainder is given or limited by the same deed (23). For by the acceptance of the tenant for life (24) of the deed, this is an agreement of him, and so an attorn (21) forsque un et, added in L. and M. and Roh. (22) &c. added in L. and M. and Roh. (23) car, not in L. and M. nor Roh. (24) de le fuit, not in L. and M. nor Roh. Judgment for conusee in a sci. fu. for any part of the services, was a good attornment in 4 law for the whole. 314 b. 48 E. 3 24. 3 E. 3. 37 H. 6. 14. per LITTLETON. [Sect. 573. 317 a.] On lessor confirming to his lessee for life, remainder to another in fee, the lessee's accept ance of the deed was a as to the remainder. good attornment in law, (Plow d. 25 b.) [СОКЕ, 317 6.] |