nuary, in the S2d year aforesaid, released and quit-claimed to the said Henry Page, by the name of Henry Page, of London, merchant-taylor (w 1), all manner of actions, suits, errors, writs of error, quarrels, plaints, and demands whatsoever, # which the [ * 14 a. ] aforesaid Edward against the said Henry then had depending, or which at any time then after he might or ought to have against the said Henry, his executors or administrators, for any matter or thing whatsoever, from the beginning of the world unto the day of the date of the said writing or release, as by the said writing here in court shew and this the said He whereupon he demands judgment, if the said Edward his aforesaid writ for correcting of errors against the said writing of release of the said Edward, further against the said Henry, he ought to maintain or pro- r* td- Raym. secute(a).& 1053-1
(a) A tenant for life, the remainder in tail, the remainder in fee, bargains and Co. Lit. 251 b. sells the land in fee to one who before the statute 14 Elizabeth suffers a recovery, 356 a. 362 a. in which A. is vouched, and vouches over, and he in the remainder enters, and the entry adjudged lawful, and a writ upon that is sued, and the plaintiff doth release the errors. Note to the former editions. [See post. p. 38. and n. (p 2). ib.] 6 Mod. 936.
Smb. 4 East, 585. 1 Esp. Rep. 337. In such (1). 289. (2). 317. (2). 2 Saund. 9. (12). (13).
ease, therefore, the declaration must be amend- 46.(7). 366. (1). 405. (1). 410. (2). 1 Chit.
ed, and the circumstances to excuse the profert Plead. 3d edit.351&#. With respect to aver
vnjnlil be stated. Id. ib. 1 Saund. 9 a. (l). ments in excuse of a profert, in case the deed
l Chit. Plead. 3d ed. 352. However, the omis- is lost, or in the possession of the defendant,
►ion of a profert, when requisite, can only be Sec, see 2 Chit Plead. 191. 3 T. R. 151. 2
taken advantage of by special demurrer, Stat. Qampb. 557, 8. (ed.)
4 and 5 Ann. c. 16. Com. Dig. Pleader, S. 17. (w 1) That in pleading a deed, the addition
See farther as to profert, and as to the demand of the parties needs not be stated, 2 Chit. Plead,
and giving of oyer, and the manner of setting 234 (p). (En.) out deeds, &c. thereon, 1 Saund. 9. (1). 9 b.
SIR W. PELHAM'S CASE.
Hilary Term, 32 Elizabeth.
Betwixt Page and Griffin.
A. tenant for life, remainder to B. in tail, remainder to A, in tail, remainder 1590,
A. by indenture inrolled in Chancery, bargains and sells the lands to C,
and his heirs ; and then C. suffers a common recovery with voucher of A.
before the statute 14 Elizabeth, c. 8. and execut held, Griffin.
lft, That this was a for$»iture of the estate of C.; 2nd, That the suing of exe- [Pt. I.—14 b.]
cation was no bar to the entry of the remainder-man. S-C' 2 Leon
60. 4 Leon.
153. 1 And. 227. Mo. 271. [S. C. cited ace. 2 Saund. 42 k. 1 Burr. 81. 1 Inst. 251. b. ii. 206.
S14/C). 17th edit. 325 a. (1). 2 Wood. Conv. 5th edit 784. Shep. Touch. 43. Watk. Desc. 295.
5 Cm. Dig. 495. Vin. Abr. Age I. Estate G. b. Q. b. Com. Dig-. Forfeiture, (a 2. 4). Recover*
&o. Ba&\ Abr. Infancy and Age, L.6. Remainder G. 5th edit. V. 833,4. 849. Contra. IT.
K. 378. Dub. 1 Prest. Conv. ill. l Prest. Abst. 354.428. See the references and notes infra].
PAGEd.BOWES
I* this term a writ of error was depending in the Exchequerchamber, betwixt Edward Griffin, plaintiff, and Henry Page, defendant, upon a judgment given in the E and the
case was thus. Henry Page had in Hil. 30 Elizabeth, brought an ejectione Jirmce in the Exchequer against Edward Griffin, and declared on a lease made by Thomas Bowes, master of arts, 10 January, 29 Elizabeth, to the said Page, of a capital messuage in Lombard-street, in the parish of St. Mary Woolnoth, &c. in London, called the sign of the White Lion, for six years, and that the said Gri and upon not guilty pleaded, the jurors in London by nisi prius, gave a special verdict to this effect. They found that Sir Martin Bowes, Knt. was seised of the said house in fee, and had issue one Thomas Bowes, and that the said Thomas had issue Martin Bowes, and the said Thomas Bowes, master of arts, now lessor, and one George B and that the said Sir Martin, 29 Julii, 8 Eliz. by his will in writing, did devise to the said Thomas Bowes his son the said house ior his life, without impeachment of waste, the remainder to the said Martin his son, and to the heirs male of his body begotten, the remainder to the said Thomas Bowes, master of arts, in tail, the remainder to the said George Bowes, in tail, the remainder to the said Thomas, son of Sir Martin, in tail, with divers remainders over: and afterwards, anno 8 Elizabeth, the said Sir Martin died, after whose decease, the said Thomas his son entered, and was seised of the said house for life, with the remainde and afterwards 19 December, anno 14 Elizabeth the said Thomas, son of Martin, by deed indented and inrolled in Chancery, according to the [ * 15 a. 3 statute (x 1) did bargain and sell the said house to Sir * William Pelham and his heirs, who suffered a common recovery, -in which Thomas, son of Sir Martin, who was tenant for life, was vouched, 3 Co. Bo b. Co. and this was before the statute of 14 Eliz. c. 8. (y 1), and execuLit.356a. tion was sued up and if this common
(x 1) Stat. 27 H. 8. c. 16. See ante, p. 13, n.(u). (Ep.)
(y 1) At common law, a recovery in a real action for die freehold of the land, being considered as a restitution to a former right by solemn judgment, whether obtained after an actual defence by the tenant to the writ, or in consequence of his default or feint plea, equally bound the right of the land, and was conclusive on all persons who had any' interest therein, though strangers to the action. Hence tenants having only a particular estate, by selling the lands and suffering their purchasers to recover them, were enabled to bar the persons entitled in remainder or reversion. 2 Inst. 73. 321. 429. 1 Burr. 115. Bac. Tracts, 148. 5 Cm. Dig. 2d edit. 341. But this being justly regarded as a grievance, a remedy was provided by stat. West. 2. c. 3. Further remedy was given by the statute, 32 Hen. 8. c. 31. which enacted, that all covinous recoveries suffered by tenants for aud common recoveries being viewed at this time as a species of conveyance, the judges held that a recovery against this statute should have the same effect as a feoffment or fine, and consequently operate as a forfeiture of the particular estate. 1 Inst. 356 a. iii. 186. Vaugh. 51. But as this statute only avoided recoveries by tenants for
life in possession, if after this act a tenant for life had made a lease for years, and the lessee had made a feoffment, and a precipe had been brought against the feoffee, and he had vouched such a recovery was not within the statute, because the tenant for life for the feoffment of the termor operated as a disseisin to him and the reversioner. Post. 10 Co. 45 a. 1 Inst. 362 a. ii. 617. To remedy this, it was declared by the 14 Eliz. c. 8. &that all recoveries bad or prosecuted by covin against any particular tenant, or against any other, with voucher over of such particular tenant, should, as against all persons in remainder or reversion, provided that, this act shall not extend to recoveries by good title, or to recoveries by assent and agreement of the persons in remainder or reversion, so that such assent appear upon the same record (either on a voucher, aid, prayer, receipt, or the like, 1 Inst. 362 a. ii. 618. 2 Roll. Abr. 23. 146), in any of her majesty's courts.& See Wiseman v. Crow, (to. Eliz. 562. And it was thereby further enacted, that the statute 32 H. 8. c. 31. should be repealed. On the construction of the statute 14 Eliz. c. 8., see post. p. 38. n. O 2)- 1 Inst. 362 a. ii. 617. 483 (r t). Pig. Rcc. 18. 83. 5 Cru. Dig. 431. (ed.)
recovery should bar the remainder, or the entry of him in the remainder in tail, was the question. And in the Exchequer, before the first judgment was given, the defendant's counsel argued, that judgment ought to be given against the plaintiff in the ejecliane Jtrnwe,
first, because the remainder of Thomas Bowes, the lessor, was bar for this recovery was out of the statute of 32 Hen. 8. c. 31., because in this case, although Sir William Pelham was but a particular tenant, yet he doth not in this recovery vouch the common vouchee, but him who was tenant for life, and so he is a particular tenant in law, but not in deed. And therefore it is agreed in 19 Eliz. 3. tit. Age, pl. 2. in Fitzherbert, if the vouchee who is tenant in law, vouch the heir of the husband in a cut in vita, the parol shall demur by the statute of West. 2. c. 40. (z 1); for although the words of the statute are general, yet they are intended when the tenant in deed voucheth the heir of the husband, and not when the tenant in law voucheth the heir of the husband (a 2). And 16. Hen. 7. 5 a. tenant by receipt shall vouch out of the degrees in a writ of entry in the per, for he is but a tenant in law, and not a tenant in deed (is 2). And it seemeth, upon the letter of the act of 32 H. 8. that this case is not within the statute, for in the body of the act it is said, &All such recoveries, &c against such particular tenants of any lands, &c. whereof the same particular tenant is, or shall be seised, as tenant by the curtesy, &c. or otherwise for life, shall be void, &c. against such persons to whom the reversion or remainder shall then appertain, &c.& And because the vouchee in our case was
Bendl. in Kel. 211
For the de- fendant. As to the 1st point.
Distinction between a tenant in law and a tenant in deed, id Co. 45 a. Plow. 17 b. 47 a. 2 Inst. 455. 4 Co. 50a. 2 Leon. 148. 6 Co. 5 a. 18 E. 4.16 a. b. Br. Age 43. Vct.Nat.brev. 132 b. tit. Cat in vita. 17 E. 3. 59 a. 18 E. 4. 16. Plowd. 17 b. Fitz. Age 2. 46 E. 3. Age 76. 7 E. 2. Age 139. 8 E. 3. Judgment 240. 14 H. 7. 18 b. 19 a. 6 E. 3. 216 b. Br. Voucher 164. 2 H. 7. 17 a. Br. Voucher 139. a. 10 Co. 45 a.
(i 1) At common law, if the husband aliened the land of his wife, this worked a discontinuance, and drove the wife to her writ of eui in rif, or her heir to his sur cut in vita; and these anions were often delayed by the purchaser vouching the heir of the husband, being within age, in which case the tenant might pray that (be parol may demur for his nonage. 2 Inst. ►54. Wm. Abr. Age. J. Bac. Abr. Infancy and Age, L. 6. To remedy this grievance, it was provided by the statute Westm. 2. c. 40. that where a person aliened any land held in right 'of his wife, after the death of the husband, the VQBtua, or her heir, should not be delayed by *a* oooa&;e of the heir
-it that the purchaser should stay till the age •This warrantor, before he should avail himself ■■« hU warranty. Id.ib.2. Reev. Hist 191. But this act is now of little use, as this species of ''ivootinoance is taken away by the statute Pt H. 8. c. 28. which gives the wife and her Win a right to enter, notwithstanding the Venation of the husband. 2 Inst. 456. 1 Inst. &-& b. 326 a. iii. 113,114. As to the construc(am of this statute, see 1 Inst. 326 a. 327 tk«Lll3— Jl?.andn.(R),(s),(T),(u),(x),(Y), Ua(ai),(bi), ib. (ed.)
'4 i) Ace. 2. Inst. 454, 455, for the statute, Wag us derogation of the common law, ought &* be construed strictly. (ed.)
(b 2) At common law, in all real actions, the tenant was permitted to vouch any person, though he or any of his ancestors never had any thing in the land whereof he might enfeoff the tenant, or
and the person vouched might in like
and, as upon every summons ad warrant'izandum, there must be a lapse of several months before a return of the writ could be had, the delay was infinite, while every voucher perhaps was false. 2 Inst. 240. 2 Reev. Hist. 120. To'remedy which, the statute W. l. (3 Edw. 1.) c. 40. was passed, which (amongst other restrictions), provided, that in writs of entry which made mention of degrees, none were to vouch out of the line there mentioned. But where a disseisor made a lease for life, the remainder in fee, if the disseisee brought a writ of entry sur disseissin in the per (see F. N. B. 191 D. Com. Dig. Dnm fuit infra a'tatem (a).
1 Inst. 238 b. iii. 198. and n. (c) ib. Booth, 172. 3 Bl. Com. 181.) against the lessee, who made default after default, and he in the remainder was received (St. W. 2. c. M. Stat de defensione juris 13 K. 2. c. 17. 1 Inst. 192 I), i. 763.
2 Inst. 345,3-16) he might vouch out of the line, because he was not within the degrees mentioned in the writ. 2 Inst. 242. (ed.)
Case of a te- nant for life disseised by covin, and afterwards vouched in a common reco- very suffered by the dis- seissor. Bend. 132.
not seised for life, but came in as vouchee, he was therefore out
of the letter of that statute: and that that act shall not be taken
by equity, it was holden, as Serjeant Bendloe reports, 5 Eliz.
that if tenant for life, the remainder to his eldest son in fee, be
disseised by covin, and afterwards the disseissor is impleaded in
a writ of entry in the post (c 2), and vouches the tenant for life,
who vouches over the common vouchee, that that was out of the
statute of 32 H. 8.; because the tenant for life came in as
pi. 194.4 Leon, vouchee, and the praecipe was not and that
i?\,*ifon' the son being an infant, was not aided by the statute of 32 H. 8. hi. 1 Jones, .,, o .7 . . » Ij • i_ i»
423. Co. Lit. And he reports also, that it was so holden in the case ot one
r.62 a. Palm. Lee, for lands in the county of Cornwall, an. 15 Eliz. by the
io°6o 45a. justices and the court said, that those
Co. Lit. 362 a. cases were not to be compared to the case at the bar, for there,
by the disseisin, all the remainders were devested, so that they
[ * 15 b. ] had * but a right (d 2); and then that perhaps might be out of the
statute of 32 H. 8., because the words of the act are &to whom
the reversidn or remainder shall then appertain.& The 2d
point was, that this recovery being executed, did toll the entry
of him in the remainder, and put him to a writ of entry in con
simili C«sm(k2); and to that purpose the cases in 15 E. 3. tit.
Age 95. 41 E. 3. 18 b. by Finchden, (a) 22 E. 3. 2 b. and the
preamble of the statute of 32 H. 8. c. 31. were cited, (b) But
That the reco- the court did resolve for the plaintiff, because they conceived
very, being tnat tj,js recovery was a forfeiture of the estate of Sir William
now a common n iL » .' . ,
assurance, . for inasmuch as a common recovery by assent was
should have the now, by common usage, in a manner become a common assm ^reoffinentor ance an^ conveyance, upon which a use may be limited (f 2) and averred, as well as upon for that cause Sir Roger Manwood, Baron Clark, and all the barons of the Exchequer upon great deliberation did resolve, that the said recovery (c) was a forfeiture (g 2), and done to the disinheritance of him in the remainder in tail, and was as much in law, as it the said Sir William Pelham had levied a fine, or made a feoff
As to the 2d
fine, and ope- rate as a for- feiture of Uie particular estate, (a) 1 Hoi. 833. (o) 10 Co. 44 a.
Pop. 23. Mo. 271. Co. Lit 356 a. 362 a. Vaugh. 51. 2 Brownl. 170. 2 Co. 74 a. 1 Rol. R. 304. 3 Co. 4 b. 5 Co. 40 b. 4 Leon. 133. 2 Leon. 67. [Willes, 451. 1 Wils. 73.3 Burr. 1596. 1 BL Rep. 496.526. 5 T. R. 104. 179. Pig. Rec. 56. She p. Touch. 37. 2 Bl. Com. 117. 271. 358, 9, 360, 2 Wenddcs. 324. Watk. Desc. 295. 5-Crn. Dig. 324. 1 Prest. Conv. 8. 2 Saund. 42 (7). 1 Inst, ii 614(c). 17th edit. 325 a. (1). Bac. Abr. Fines and Recoveries, A. Vin. Abr. Recovery Common A. pi. 1. Com. Dig. Estate, B.27. (e) Co. Lit. 362 a. 356 a. [2 Saund. 42 W. Vin. Abr. Estate, G b. pi. 24. Com. Dig. Forfeiture, A. 2. Recovery, B. 2. Bae. Abr. Remainder, G. 5th edit. v. 834 Shep. Touch. 43. 5 Cm. Dig. 495. Contra. 1 T. R. 378. Dub. 1 Prest. Conv. 111. Abst. i. 354 428. See infra p. 38 n. (v 2).]
(c 2) As to writs of entry in the post, see
1 Inst. 238 b. iii. 194.197, and notes, ib. Booth, 173. F. N. B. 191 c. 3 Bl. Com. 182. (ed.)
(d2) Whereas, in the present case, the bargain and sale is merely a rightful conveyance, and passes that degree of interest only which is in the grantor, and does not devest or discontinue estates in remainder or reversion,
2 Inst. 644. Seymour's case, post. 10 Co. 25. 1 Inst. ii. 581. (b). iii. 93. (a). 124. (c 1). With respect to the effect of a disseisin of tenant for life, upon those in remainder or reversion, see 1 Inst ii. 505. (i. 3). 2 Prest.
nient And a difference was taken between a recovery by as- Distinction sent, which is in the nature of a common conveyance, and a lierein be& recovery without assent of the parties, although it be without mon recovery^ title (h 2). And it was also adjudged by the whole court, (d) that and a recovery the entry of him in the remainder in tail was congeable as Zitkoui era-' well after the execution, a for it being a sent of parties forfeiture for the reason aforesaid, the suing execution will not T1!e recovery toll the entry of him in the remainder. And the court said, it „re&the eutTM would be mischievous, if before the statute of 14 Eliz. cap. 8. it of the remainshould be in the power of tenant for life, by suffering a common der-man was
. . ii .S. . fi. ■ .i '■ B . , lawful, as well
recovery, to toll the entry of him in the reversion, or remainder, after exec-
and put them to their real actions, and so in danger to be dis- flon, as after inherited or delayed: and to prove the same to be a forfeiture, J^&frfmfnt* f the case adjudged in (e) 5 lib. Ass. pi. 3. and 5 E. 3. tit Entre a life estate by congeable 42. was cited: That where the plaintiff had demised a recovery in the land to one A. for term of his life, which A. procured his \^x\z£m son to bring a writ of entry upon the statute of Gloucester (i 2), for life by colsupposing that he held of his demise for term of his life, by J&8'00! collusion, to oust the plaint to which writ EstiieQ. b pi A. appeared, and could not deny the action, for which the son 4. Com. Dig. and before execution, the plaintiff entered upon Recovery, Ij.j. A and the son sued execution, upon which the plaintiff brought mainderG.]C an assise, and had judgment to recover. And it is to be ob- (e) s Co. 4. b. served, that the entry of the plaintiff before execution, was no L^Tj60-6&5cause of the judgment, for there Chauntrel, ex assensu Herle, jai. ije. 128. declares the re that is to say, because it 13'- Co. Lit. is found, that the writ wasbrought by collusion (k 2), and that the %°Qg 'eh'.& recovery was by confession (_/), which we hold but an alienation [Vin.Abr.Esin law to the disinheritance of him who is plaintiff, for * which [ * 16 a. ] cause the court did adjudge that he should recover his seisin. tate& G. b. pL By which judgment it appeareth, that the suing execution was '* not material, forasmuch as the recovery itself was adjudged a 0y his ioinforfeiture. So, (g) if in a writ of right brought against tenant for ingthe mise in life, he join the mise upon the mere right, it is a forfeiture (l2), as ?^vjj of &snt& it is holden in 9 H. 5. 14 a. and 22 Ass. pl. 31. So 14 E. 3. Cong. 49 Br. tit. Ileceit. 135, that in a precipe, the tenant, being tenant forfeit, de ter.
a. 1 RoL853. [Bac. Abr. Remainder O. 5th edit. v. 833.] &g) 3 Co.4 b. Co. Lit. 252 a. 2. Leon. 61, bi, 63. 66. 4 Leon. 126. 1W. 132. Co. Lit. 215 b. 355 b. 251 b. S Co. 55. Buckler's case. [Yin. Abr. Estate, G. b. pi. 17. Com. Dig. Forfeiture, A. 4.]
(n 2) Of a recovery without title, as distin- must therefore have been, a writ of entry in rnUUed from a common recovery, see 1 Inst, consimuli casu, which lies upon the stat. W. 2. Seta. ii. 617.; and that such a recovery had c. 24. for a reversioner on the alienation of again** a tenant for life without his default or his lessee for life. Ibid. (En.) covin, and execution sued thereupon, will ope- (k 2) So fraud, or collusion, will prevent a rate, at this day, as a discontinuance to per- descent cast from tolling the entry of him who soas in remainder or reversion, so that, ou the has right. 1 Inst. sect. 395. 241. b. iii, 30, 31, death of the tenant for life, they cannot enter, and n. (c) ib. Gilb. Ten. 27, 28. (ed.)
for the statute W. 2. c. 3. does not ex- (l 2) For it is an implied claim of the fee, tend to a recovery by action tried (2 Inst. 342), since none but tenants in fee can join the mise aad the 14 Eliz. c. 8. is confined to recoveries in a writ of right. 1 Inst. 251 b. ii. 208. So, by agreement or covin. Ibid. Ante p. 34. n. upon reasons evidently feudal, wherever a par(v l). (ed.) ticular tenant in any court of record disclaims (I S) The statute of Glouc. c. 7. gives a writ to hold of his lord, or does any act which of entry m can proviso upon an alienation by a amounts to a virtual disclaimer, as by affirming tenant in dower, in her lifetime (F. N. B. 205), the fee in a stranger (either actively, as by Witt does not extend to any other particular praying in aid of a stranger, attorning upon retenant. 2 Inst, 309. The writ, in this case, cord to his grant, confessing the action in a writ